/raid1/www/Hosts/bankrupt/CAR_Public/220113.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, January 13, 2022, Vol. 24, No. 4
Headlines
A & A GLOBAL: Hedges Files ADA Suit in S.D. New York
ADECCO USA: Scott Suit Removed to C.D. California
ADT LLC: Court Grants Bid for Summary Judgment in Ingram TCPA Suit
AERIS HEALTH: Duncan Files ADA Suit in S.D. New York
AMERICAN ZURICH: Court Dismisses Chung Class Suit With Prejudice
ARENA PHARMACEUTICALS: Silverberg Sues Over Pfizer Merger Deal
ASPLUNDH CONSTRUCTION: Cardenas Sues Over Failure to Pay Wages
AUSTRALIA: Class Action Mulled on Behalf of Deportees, Detainees
AUTONATION INC: Guerrero Files ADA Suit in S.D. New York
BALTIMORE, MD: Black Female Officers File Discrimination Suit
BBBB BONDING: Order Barring Enforcement of Premium Agreement Upheld
BERKELEY LIGHTS: Rosen Law Firm Reminds of February 7 Deadline
BITMART EXCHANGE: Class Action Mulled Over $200MM Hack
BLUE LINE: Fails to Pay Overtime Wages, Delmonte Suit Claims
BRIGHT HEALTH: Robbins Geller Reminds of March 7 Deadline
CANADA: Settles First Nations Child Welfare System Class Lawsuits
CHEGG INC: Rosen Law Firm Reminds of February 22 Deadline
CHILDREN'S HOSPITAL: De La Pena's Bid for Writ of Mandate Granted
CITRIX SYSTEMS: Rosen Law Firm Reminds of January 18 Deadline
CONCUR TECHNOLOGIES: Contreras Files ADA Suit in S.D. New York
CREDIT BUREAU: $265K in Attys.' Fees, Costs Awarded in Bassett Suit
DAVID WELLS: Faces Schmidt Suit Over Laborers' Unpaid OT Wages
DAYBREAK SOLAR: Cunningham Files TCPA Suit in W.D. North Carolina
DENKA PERFORMANCE: Butler Suit Transferred to N.D. California
DHI MORTGAGE: Ninth Circuit Flips Dismissal of Ahlstram Class Suit
DIRECT ENERGY: Court Grants Summary Judgment Bid in Forte Suit
DUNCANVILLE N LLC: Carson Files TCPA Suit in N.D. Texas
EMMY'S ORGANICS: Contreras Files ADA Suit in S.D. New York
EXPERT STAFFING: Denial of Arbitration Bids in Garcia Suit Upheld
FERRARI SPA: Faces Class Action Lawsuit Over Brake Fluid Leaks
FIORINI LANDSCAPE: Hernandez Sues Over Failure to Pay Proper OT
FOODS ALIVE: Contreras Files ADA Suit in S.D. New York
FRAME USA: Contreras Files ADA Suit in S.D. New York
GARRYMORE RESTAURANT: Crehan Sues Over Unpaid Minimum & OT Wages
HUNTINGTON POWER: Fails to Timely Pay Wages, Laroche Suit Claims
IMPERIAL HEALTH: Chapman Sues Over Unsolicited Telemarketing Calls
JAINDL FARMS: Mahoney Files ADA Suit in E.D. Pennsylvania
JP MORGAN: Simoni Files Suit in S.D. New York
JPMORGAN CHASE: $15.7MM Settlement Fairness Hearing Set for May 31
KAY'S NATURALS: Contreras Files ADA Suit in S.D. New York
KEVIN CARR: Johnson Files Suit in E.D. Wisconsin
LIGHTSPEED COMMERCE: Levi & Korsinsky Reminds of Jan. 18 Deadline
LONG ISLAND POWER: Class Certification Order in Sandy Suit Flipped
MATT MACAULEY: Sanders Files Suit in W.D. Michigan
MCDONALD'S USA: Court Certifies Class & Subclass in Ries Suit
MCKINSEY & COMPANY: Southwestern Suit Transferred to N.D. Cal.
META MATERIALS: Bragar Eagel Reminds of March 4 Deadline
META MATERIALS: Robbins LLP Reminds of March 4 Deadline
MICHIGAN: District Court Enters Final Judgment in Doe v. Curran
MIYOKO'S KITCHEN: Contreras Files ADA Suit in S.D. New York
MONTGOMERY COUNTY, PA: Overby Complaint Dismissed Without Prejudice
NASONCARE LLC: Underpays Radiologic Technologists, Anderson Says
ORANGEBURG COUNTY, SC: Sued Over Illegal Road Maintenance Fees
OREGON: Court Stays Gardner v. Brown Pending Resolution of Maney
ORGANOGENESIS HOLDINGS: Rosen Law Firm Reminds of Feb. 8 Deadline
PAYSAFE LIMITED: Rosen Law Firm Reminds of February 8 Deadline
PEOPLECONNECT INC: Izzo Files Suit in W.D. Washington
PONGSRI THAI: Class Settlement in Rodpracha Suit Wins Partial Nod
PROCTER & GAMBLE: Labella Sues Over Benzene in Deodorant Products
PROCTER & GAMBLE: Sued for Selling Benzene-Containing Products
PUMA BIOTECH: Fairness Hrg. on $54.2MM Settlement Set for April 11
REDWIRE CORP: Rosen Law Firm Reminds of February 15 Deadline
REVANCE THERAPEUTICS: Kessler Topaz Reminds of Feb. 8 Deadline
REVANCE THERAPEUTICS: Rosen Law Firm Reminds of Feb. 8 Deadline
ROBINHOOD MARKETS: Golubowski Files IPO-related Class Action
SANMEDICA INT'L: Can't Compel Subpoenas Compliance in Deibler Suit
STATE FARM: Sisia Class Suit Dismissed with Prejudice
STONECO LTD: Rosen Law Firm Reminds of January 18 Deadline
STORAGEPRO MGMT: Denial of Arbitration Bid in Faacks Suit Affirmed
SURNAIK HOLDINGS: Warehouse Fire Suit Goes to State Supreme Court
TEAM NEXT LEVEL: Fails to Properly Compensate Delivery Drivers
TREATMENT ASSESSMENT: Loses Bid for Summary Judgment in Briggs Suit
UNITED STATES: 3rd Cir. Flips Dismissal of Morton v. Virgin Islands
WESTERN AUSTRALIA: Sued Over Imprisonment for Unpaid Fines
*********
A & A GLOBAL: Hedges Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against A & A Global
Industries, Inc. The case is styled as Donna Hedges, on behalf of
herself and all other persons similarly situated v. A & A Global
Industries, Inc., Case No. 1:22-cv-00172 (S.D.N.Y., Jan. 7, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
A&A Global Industries -- https://www.aaglobal.com/ -- is the
premier supplier of wholesale toys, novelties, and candy for the
amusement, redemption, FEC and bulk vending industries.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
ADECCO USA: Scott Suit Removed to C.D. California
-------------------------------------------------
The case styled as Dechanique Scott, an individual, on behalf of
herself, and on behalf of all persons similarly situated v. Adecco
USA, Inc., FN Logistics, LLC, Fashion Nova, LLC, Nova Fashion,
Inc., Case No. 21STCV44038, was removed from the Los Angeles County
Superior Court of California to the U.S. District Court for the
Central District of California on Jan. 6, 2022.
The District Court Clerk assigned Case No. 2:22-cv-00137 to the
proceeding.
The nature of suit is stated as Other Labor.
Adecco Staffing, USA -- https://www.adeccousa.com/ -- is the second
largest provider of recruitment and staffing services in the United
States, offering human resource services such as temporary
staffing, permanent placement, outsourcing, career transition or
outplacement.[BN]
The Plaintiff appears pro se.
The Defendant is represented by:
Mia D. Farber, Esq.
JACKSON LEWIS PC
725 South Figueroa Street Suite 2500
Los Angeles, CA 90017-5408
Phone: (213) 689-0404
Fax: (213) 689-0430
Email: mia.farber@jacksonlewis.com
ADT LLC: Court Grants Bid for Summary Judgment in Ingram TCPA Suit
------------------------------------------------------------------
In the case, ARMANIA INGRAM, on behalf of herself and all others
similarly situated, Plaintiff v. ADT, LLC, Defendant, Case No.
3:20-CV-376-HBG (E.D. Tenn.), Magistrate Judge M. Bruce Guyton of
the U.S. District Court for the Eastern District of Tennessee,
Knoxville:
(1) granted the Defendant's Motion for Summary Judgment; and
(2) denied the Plaintiff's Motion to Amend.
Background
The case stems from the telephone calls that the Defendant placed
to the Plaintiff. The Defendant states that most of the calls
occurred between March 2020 and mid-April 2020, when its call
center representatives began working from home due to the Covid-19
pandemic. It claims that it placed nearly 1,186 non-telemarketing,
manually dialed telephone calls to the Plaintiff's cellular
telephone number as the result of an internal routing error. The
Plaintiff claims that some of the calls she received from the
Defendant involved the use of an artificial or prerecorded voice.
As such, she filed a lawsuit alleging the Defendant violated the
Telephone Consumer Protection Act of 1991 (TCPA).
Relevant to the instant matter, prior to the Plaintiff filing the
lawsuit, the parties participated in settlement negotiations.
Specifically, on March 23, 2020, the Plaintiff emailed the
Defendant complaining that she had received over 50 telephone calls
from the Defendant's customers who were told that they were being
transferred. She stated that somehow the calls were transferred to
her cell phone, and she requested that the harassment stop.
On April 6, 2020, the Plaintiff followed up with the Defendant via
email and requested that Defendant cease and desist the telephone
calls. She requested that the Defendant contact her within seven
days to resolve the issue and stated that she is willing to
amicably resolve this situation without involving a court.
In response, Joe Racz, the Defendant's contact compliance
representative, emailed the Plaintiff stating that her telephone
number had been added to the Defendant's Internal Do-Not-Contact
List. After the Defendant identified and corrected the issue, the
Plaintiff requested contact information to seek compensation for
the telephone calls and to avoid legal action. In response, Racz
provided the Plaintiff contact information for Maria DiGirogio, the
Defendant's Senior Corporate Counsel.
On April 24, 2020, the Plaintiff emailed DiGiorgio to advise her of
the calls that she had received from the Defendant, and she
requested compensation. The Plaintiff stated that "Racz resolved
the issue after her attorney advised that she submits the
cease-and-desist letter."
On April 28, 2020, DiGiorgio responded that the Plaintiff received
the telephone calls due to a technical glitch with the telephone
platform, and while it denied legal liability, the Defendant stated
that it was prepared to offer compensation for the nuisance of
having received the calls. The Defendant offered an amount, which
represented a sum certain per telephone call. The parties
continued to exchange settlement offers via email for several
weeks.
On May 9, 2020, the Plaintiff proposed a counteroffer, stating, "My
attorney advised we can take this to the next level legally for a
minimum of $500 per call due to Tennessee law. I am asking for a
minimum of $ (REDACTED) per call as advised per my attorney."
On May 22, 2020, Daniel McGrath, the Defendant's Deputy General
Counsel, emailed the Plaintiff with a final settlement offer.
McGrath stated, "As there has been no violation of either federal
or Tennessee law, I have been directed to respond and defend as
required if you decline my offer and elect to pursue formal
litigation. In this regard, if you work with an attorney, I would
welcome the opportunity to speak with him or her to discuss this
matter. All of my contact information is listed below. If you
accept the offer, which I hope you do, we would ask you to sign a
short release." On May 27, 2020, the Plaintiff responded.
On June 4, 2020, McGrath emailed Plaintiff the one-page settlement
agreement and general release. The Plaintiff did not sign the
Settlement Agreement. Instead, on June 24, 2020, her current
counsel sent McGrath and DiGiorgio the following email: "I
represent Armania Ingram on her claim against ADT for calls made to
her cell phone in violation of the TCPA. I have just been made
aware that you have been communicating with her directly despite
knowing she was represented by counsel. Please cease all
communications with her and direct all further communication to me.
We are willing to explore an individual settlement but will need
the call data for the calls to Ms. Ingram's number. If ADT is
unwilling to provide it, we intend to file a class action. Please
let me know how ADT would like to proceed."
On Aug. 24, 2020, the Plaintiff filed the original Complaint
alleging violations of the TCPA and later amended her Complaint on
Feb. 16, 2021.
Now before the Court is the Defendant's Motion for Summary Judgment
and the Plaintiff's Motion to Amend. The parties appeared before
the Court on Oct. 25, 2021, for a motion hearing.
Analysis
The Defendant moves for summary judgment on two grounds. First, it
argues that the Plaintiff's claims are barred by her pre-suit
settlement and release. Second, it states that the proof
establishes that it did not use an automatic telephone dialing
system or an artificial or pre-recorded voice pursuant to 47 U.S.C.
Section 227 et seq., and therefore, the Plaintiff's TCPA claim
fails as a matter of law. Judge Guyton first addresses whether the
Plaintiff's claim is barred by her pre-suit settlement as this
issue is dispositive of the Defendant's second argument.
As mentioned, the Defendant argues that the Plaintiff's pre-suit
settlement and release constitutes a binding and enforceable
contract between the parties. It argues that it is irrelevant that
the Plaintiff did not execute the one-page Settlement Agreement
because the offer was not qualified on the condition of approving
the language in the Settlement Agreement. It states that courts
regularly enforce settlement agreements even if the parties have
not executed the settlement agreement.
The Plaintiff argues that the parties did not reach an agreement on
all the material terms. Specifically, she states that the
Settlement Agreement included a confidentiality clause and that she
never agreed to a confidentiality clause. In the event the Court
finds that the parties agreed to the material terms, the Plaintiff
seeks an order that the parties' agreement is unenforceable as it
was made in violation of Tennessee Rule of Professional
Responsibility 4.
Judge Guyton finds that the parties reached an agreement on all the
material terms. The material terms are the Plaintiff's compensation
for the telephone calls the Defendant placed to her and her release
of the Defendant from liability arising out of the telephone calls.
In response to the Defendant's final offer, the Plaintiff
unequivocally accepted, stated that she will sign a release, and
inquired about the next steps.
The parties negotiated the settlement agreement over the course of
a month. During their email negotiations, the parties never
mentioned a confidentiality provision. Accordingly, based on the
circumstances in the case, Judge Guyton finds that the parties
agreed to the material terms of the settlement agreement.
The Plaintiff also argues that the Settlement Agreement refers to
the confidentiality provision as "material," the words "strictly
confidential" in the Settlement Agreement are bolded and
capitalized, and the Defendant requested that she signs the
Settlement Agreement before it released the payment. While Judge
Guyton has considered the Plaintiff's arguments, he is not
persuaded by them as the parties' email exchanges prior to the
Plaintiff's receipt of the Settlement Agreement establishes that
the material terms are the amount of the Plaintiff's compensation
and releasing the Defendant from liability. Accordingly, he finds
the Plaintiff's argument that the parties did not reach an
agreement on the material terms not well taken.
The Plaintiff also argues that a settlement agreement reached in
violation of Rule 4.2 of the Tennessee Rules of Professional
Conduct may be set aside as unenforceable. She states that she
sought and obtained the advice of counsel through various referral
services. Further, the Plaintiff argues that whether she was
actually represented by an attorney, or just believed herself to be
represented, is irrelevant to counsel's duties under Rule 4.2.
Based on the evidence in the case, Judge Guyton cannot find that
the Plaintiff was represented by counsel when she accepted the
Defendant's officer as she indicated in her emails to the
Defendant. He finds it patently unfair to allow the Plaintiff to
renege on her acceptance of the Defendant's settlement offer based
on her, at best, mistaken belief that she was represented by
counsel, or at worse, a false statement that she was represented by
counsel.
Given that he finds that the parties entered into a settlement
agreement, Judge Guyton finds it unnecessary to address the merits
of the Plaintiff's TCPA claim. For the same reasons, he also denies
the Plaintiff's Motion to Amend.
Conclusion
Accordingly, for the reasons he explained, Judge Guyton granted the
Defendant's Motion for Summary Judgment and denied the Plaintiff's
Motion to Amend. He will enter a separate judgment in the matter.
A full-text copy of the Court's Dec. 29, 2021 Memorandum Opinion is
available at https://tinyurl.com/msuseukh from Leagle.com.
AERIS HEALTH: Duncan Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Aeris Health Inc. The
case is styled as Eugene Duncan, and on behalf of all other persons
similarly situated v. Aeris Health Inc., Case No. 1:22-cv-00132
(S.D.N.Y., Jan. 6, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Aeris Health Inc. -- https://aeris.irobot.com/ -- offers devices
that ensure best air quality with lowest energy consumption.[BN]
The Plaintiff is represented by:
Bradly Gurion Marks, Esq.
THE MARKS LAW FIRM PC
175 Varick Street 3rd Floor
New York, NY 10014
Phone: (646) 770-3775
Fax: (646) 867-2639
Email: brad@markslawfirm.net
AMERICAN ZURICH: Court Dismisses Chung Class Suit With Prejudice
----------------------------------------------------------------
In the case, DAVID CHUNG and KBH SPORTS CLUB LLC, individually and
on behalf of all others similarly situated, Plaintiffs v. AMERICAN
ZURICH INSURANCE CO., Defendant, Case No. 20-CV-5555 (NGG) (RML)
(E.D.N.Y.), Judge Nicholas G. Garaufis of the U.S. District Court
for the Eastern District of New York granted the Defendant's Motion
to Dismiss.
Introduction
Named Plaintiffs KBH Sports Club LLC and David Chung bring the
putative class action against Defendant American Zurich on behalf
of "all similarly situated gyms, health clubs, health and fitness
centers and other businesses." The Plaintiffs allege that their
property insurance policy with the Defendant covers business income
losses and expenses incurred as a result of the COVID-19 pandemic
and their compliance with various public health mandates issued by
the State of New Jersey in response to it. They seek a declaratory
judgment that their losses are covered by the Policy, a refund of
"unearned" premiums previously paid to the Defendant, and a
discount on future premiums.
Background
Mr. Chung, a New York resident, owns KBH, a New Jersey limited
liability company, which operates a fitness center, 1160 White
Horse LLC, doing business as Echelon Fitness, located in New
Jersey. The Defendant is a corporation organized under the laws of
Illinois with its corporate headquarters there. The Plaintiffs
obtained an "all-risk" commercial property insurance policy from
the Defendant, which became effective on Jan. 5, 2020 and renewed
on Jan. 5, 2021, and which "covers all risks or loss except for
risks that are specifically excluded."
The Plaintiffs rely on three provisions which they allege cover
their losses: The Business Income provision, the Extra Expense
provision, and the Civil Authority provision. The Business Income
and Extra Expense provisions, together, cover losses and expenses
incurred in certain situations where the business is suspended due
to direct physical loss of or damage to the property, and the Civil
Authority provision covers certain situations where the business is
inaccessible due to a government action in the wake of damage to
property other than the covered premises (e.g., nearby businesses).
The Plaintiffs assert that they purchased the Policy and paid
premiums to the Defendant to cover events like COVID-19, and
"expected the Defendant to indemnify and compensate them for the
recent losses incurred."
Beginning in March 2020, the State of New Jersey issued various
public health mandates related to the COVID-19 pandemic. These
included orders directing the temporary closure of all
"non-essential" retail businesses to the public. On March 16, 2020,
in compliance with the orders, the Plaintiffs temporarily ceased
operations. The Plaintiffs assert they "lost the right to use the
fitness center as a result of the business closure order" and they
"were not permitted to operate the business until the business
closure orders were lifted." During the closure, the Plaintiffs
ceased billing membership fees and laid off their employees because
no one was allowed to enter the property, including the customers
and employees during the crisis.
In early September 2020, non-essential businesses were permitted to
re-open. However, New Jersey fitness centers were required to
operate at a reduced capacity, and the orders imposed social
distancing and face-covering requirements. Echelon Fitness was
restored to 25% of maximum capacity on Sept. 1, 2020, and 35%
capacity on Feb. 7, 2021.
The Plaintiffs seek a declaratory judgment that the Policy covers
the losses and expenses that they incurred as a result of their
compliance with the closure orders. They also allege that no
exclusion, including the Virus Exclusion, applies. Accordingly, the
Plaintiffs assert that the "Defendant is legally bound by the
contract to pay all damages caused by the breach of contract."
In addition to their coverage claims, the Plaintiffs assert that
they are owed a "refund of the insurance premium for the business
suspension period and partial operation period" and "discounts on
future premiums during the business interruption period." Due to
the limited capacity and operations, the Plaintiffs claim that they
"paid full premium for the aforementioned business suspension and
partial restoration period" despite the fact that "the insurer's
exposure to risk of loss was substantially reduced during the
Business Closure Order."
Additionally, in its Jan. 2021 policy renewal, the Defendant raised
the insurance by more than $6,000, or more than 30% of the original
premium. The Plaintiffs seek "partial return of unearned premium
paid;" "the premium for the suspended business operation period be
prorated and adjusted accordingly;" and "the premium for the
business restoration period be calculated and adjusted" under the
theories of unjust enrichment and the common law doctrine of "money
had and received."
The parties dispute the coverage available to the Plaintiffs under
three provisions of the Policy: The Business Income provision; the
Extra Expense provision; and the Civil Authority Coverage
provision. They also dispute whether the Policy specifically
excludes any covered causes of loss suffered by the Plaintiffs
here, namely the Virus Exclusion.
The Plaintiffs initiated the class action on Nov. 15, 2020. On
March 4, 2021, they filed an Amended Complaint containing three
claims: (1) breach of contract; (2) unjust enrichment; and (3)
"money had and received." The Defendant now moves to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6).
Discussion
The Defendant argues that the losses claimed by the Plaintiffs are
not covered under the Business Income or Extra Expense provisions
because the Plaintiffs did not plausibly allege "direct physical
loss of or damage to property." It also argues that the claimed
losses are not covered by the Civil Authority provision, because
the Plaintiffs have not alleged "damage to property other than
property at the described premises" from "a Covered Cause of Loss
within a one-mile radius of the fitness center." Moreover, the
Defendant argues that the Policy's Virus Exclusion precludes
coverage under any provision.
The Plaintiffs oppose the Defendant's motion, arguing that the
provisions cover their losses because the "Plaintiffs and
neighboring businesses lost the exclusive right to enjoy their
properties for business purposes which equates to damage to
property" and that "loss of use is synonymous with damage." They
also argue that the Virus Exclusion does not preclude coverage.
For the quasi-contract claims, the Defendant asserts the
Plaintiffs' refund and adjustment claims fail because (1) the
"Plaintiffs specifically plead the existence of a valid and
enforceable contract" which governs the subject matter, (2) the
"Plaintiffs do not allege that Zurich's retention of the premium is
inequitable," and (3) the Defendant's retention of premiums, and
refusal to adjust them, is not unjust.
In response, the Plaintiffs assert that (1) the Policy does not
preclude quasi-contract claim recovery because it does not address
the subject matter at issue; (2) the "premium must be returned if
the risk has never been attached"; and (3) "separable risks should
be adjusted where risk has not run on portions of the policy."
A. Coverage
1. Business Income and Extra Expense Coverage
The Plaintiffs assert coverage under the Business Income and Extra
Expense provisions due to the "direct loss of use of the premises
caused by the communicable disease, pandemic and the resulting
business closure order." Judge Garaufis holds that this claim is
materially identical to that addressed by the Court in DeMoura v.
Cont'l Cas. Co., 523 F.Supp.3d 314, 320-22 (E.D.N.Y. 2021). Because
he finds the Plaintiffs' Business Income and Extra Expense policy
terms to have the same meaning as those in the DeMoura policy, and
because the Plaintiffs fail to address nor attempt to distinguish
DeMoura, Judge Garaufis finds that the Plaintiffs' "loss of use"
claim under these provisions necessarily fail. Because the
Plaintiffs have failed to allege that such harm occurred, they have
not met their burden to plead coverage for their losses under the
Business Loss or Extra Expense provisions.
2. Civil Authority Coverage
The Plaintiffs also assert coverage under the Civil Authority
provision because both their business and "many businesses within
one mile of them suffered the same property damage" from "the
business closure orders." The Defendant asserts the Plaintiffs
"cannot allege entitlement to Civil Authority coverage because a
Covered Cause of Loss did not result in 'damage to nearby
property.'"
Judge Garaufis holds that the Civil Authority provision requires a
"Covered Cause of Loss," defined elsewhere in the Policy as "direct
physical loss," to "cause damage to property other than property at
the described premises." Because a Covered Cause of Loss requires
direct physical loss, the Civil Authority provision should be read
consistent with the Business Income provision, which the Court has
already found to require real, tangible damage. Therefore, Judge
Garaufis concludes that the Plaintiffs have not sufficiently pled
that the Civil Authority provision covers their alleged losses or
expenses, and he need not consider the additional arguments as to
physical conditions or access.
3. Virus Exclusion
Even if definitional ambiguity did exist, the Policy's Virus
Exclusion would apply so as to exclude coverage for any "loss or
damage caused by or resulting from any virus, bacterium or other
microorganism that induces or is capable of inducing physical
distress, illness or disease." The parties dispute whether this
precludes coverage.
Judge Garaufis holds that the Plaintiffs implausibly claim either
that the virus did not cause the losses (rather, the closure orders
did), or at least was not the proximate cause of the losses, but
neither suggestion is persuasive. Thus, the Plaintiffs have failed
to show that the Virus Exclusion provision is inapplicable.
B. Quasi-Contract Claims
The Plaintiffs do not dispute the contract's validity. Indeed, they
rely on the Policy to argue for enforcement of its alleged coverage
obligations. The Policy does, however, state the agreed amount of
premium to be paid to the Defendant by the Plaintiffs and potential
grounds for refund of that premium, Judge Garaufis finds. Moreover,
he says, the parties agreed that "insurance premiums are not
retroactively adjusted simply because fewer or more claims than
expected materialized during the policy period." Thus, contrary to
Plaintiff's assertion, "the subject matter at issue" is indeed
governed- and excluded-by the parties' contract. Because the
Plaintiffs have failed to allege that the contract in dispute is
invalid, nor establish that its claims are not addressed by the
terms of that Policy, the unjust enrichment and money had and
received claims must be dismissed.
C. Class Claims
Where the Court has found that all of the plaintiffs' individual
claims for damages and declaratory relief must be dismissed, the
plaintiffs' class claims must be dismissed as well. Accordingly,
the Plaintiffs' class claims are dismissed.
Conclusion
For the foregoing reasons, Judge Garaufis granted the Defendant's
Motion to Dismiss for Failure to State a Claim. He dismissed with
prejudice the Plaintiffs Amended Complaint. The Clerk of the Court
is respectfully directed to enter judgment for the Defendant and
close the case.
A full-text copy of the Court's Dec. 29, 2021 Memorandum & Order is
available at https://tinyurl.com/2p87xf6t from Leagle.com.
ARENA PHARMACEUTICALS: Silverberg Sues Over Pfizer Merger Deal
--------------------------------------------------------------
Gherbert Silverberg, on behalf of himself and all other similarly
situated stockholders of Arena Pharmaceuticals, Inc., Plaintiff, v.
Amit D. Munshi, Garry Neil, Jayson Dallas, Oliver Fetzer, Kieran T.
Gallahue, Jennifer Jarrett, Katharine Knobil, Tina S. Nova, Nawal
Ouzren, Steven Schoch and Arena Pharmaceuticals, Inc., Defendants,
Case No. 2022-0018, (D. Del., January 5, 2022), seeks to enjoin
defendants and all persons acting in concert with them from
proceeding with, consummating or closing the acquisition of Arena
Pharmaceuticals by Pfizer, Inc., rescissory damages, costs of this
action, including reasonable allowance for plaintiff's attorneys'
and experts' fees and such other and further relief under the
Securities Exchange Act of 1934.
On December 12, 2021, Arena's board of directors caused Arena to
enter into an agreement and plan of merger with Pfizer, Inc. and
Antioch Merger Sub, Inc. The merger provides that the Arena will
merge with and into Merger Sub, with Merger Sub surviving the
Merger as a wholly owned subsidiary of Pfizer, Inc., and that
Arena's stockholders will be cashed out for $100.00 per share in
cash.
The merger proxy statement states that Guggenheim Securities, LLC,
Arena's financial advisor, relied on "Arena-Provided Information"
which included certain estimates and other forward-looking
information in issuing its fairness opinion but, Silverberg claims
they failed to provide Arena's stockholders with that information,
causing him and other stockholders to be unable to make an informed
decision on whether to vote in favor of the proposed transaction.
[BN]
Plaintiff is represented by:
Jeffrey S. Abraham, Esq.
Michael J. Klein, Esq.
ABRAHAM, FRUCHTER & TWERSKY, LLP
450 Seventh Avenue, 38th Floor
New York, NY 10123
Tel: (212) 279-5050
Email: jabraham@aftlaw.com
mklein@aftlaw.com
- and -
P. Bradford deLeeuw, Esq.
DELEEUW LAW LLC
1301 Walnut Green Road
Wilmington, DE 19807
Tel: (302) 274-2180
Fax: (302) 351-6905
Email: brad@deleeuwlaw.com
ASPLUNDH CONSTRUCTION: Cardenas Sues Over Failure to Pay Wages
--------------------------------------------------------------
WENDY CARDENAS, individually and on behalf of all others similarly
situated, Plaintiff v. ASPLUNDH CONSTRUCTION, CORP., 347 GROUP,
INC., and DOES 1 through 20, inclusive, Defendants, Case No.
21STCV47421 (Cal. Sup. Ct., December 29, 2021) brings this
complaint against the Defendants pursuant to the Private Attorneys
General Act of 2004.
The Plaintiff, who has worked for the Defendants as a non-exempt
employee, asserts these claims:
-- The Defendants failed to pay all wages owed to the
Plaintiff and other similarly situated aggrieved employees,
including minimum wages and overtime wages;
-- The Defendants failed to provide them with lawful meal
periods and rest breaks and/or or compensation in lieu thereof;
-- The Defendants failed to reimburse them for the necessary
business-related costs;
-- The Defendants failed to provide them with accurate
itemized wage statements; and
-- The Defendants failed to pay them all wages due upon their
separation of employment.
The Plaintiff seeks for civil penalties against the Defendants on
behalf of himself and all aggrieved employees pursuant to Labor
Code Section 2698, reasonable attorneys' fees and litigation costs,
and other relief as the Court deems just and proper.
The Corporate Defendants are in the construction industry and
staffing industry. [BN]
The Plaintiff is represented by:
Samuel A. Wong, Esq.
Kashif Haque, Esq.
Jessica L. Campbell, Esq.
Fawn F. Bekam, Esq.
AEGIS LAW FIRM, PC
9811 Irvine Center Drive, Suite 100
Irvine, CA 92618
Tel: (949) 379-6250
Fax: (949) 379-6251
E-mail: fbekam@aegislawfirm.com
AUSTRALIA: Class Action Mulled on Behalf of Deportees, Detainees
----------------------------------------------------------------
Star News reports that after being released from his third stint in
a Brisbane prison, Brad Sinoti feels just as trapped as ever.
On his release, the Dunedin-born construction worker was swiftly
moved to a detention centre for eight months, before being
handcuffed again and put on a plane back to New Zealand as part of
the Australian Government's controversial Migration Act 1958.
Known as a "501 deportee", the 40-year-old can not return to
Australia, where he lived for more than a decade, or visit his
three children in Brisbane.
"They're the ones getting punished for me getting sent here,
because they miss out on spending time with their father."
Mr Sinoti said he was convicted for drug dealing several times and
spent more than a year in jail.
"You get your parole, which tells you you're safe enough to get
back in the community, and then they try to tell you that you're a
bad character for the community, so it's a bit of a contradiction.
"They didn't give me a chance to change. They didn't offer me any
sort of support."
He said his deportation was "humiliating".
Since returning to Dunedin, he had turned his life around and was
working as a builder.
However, he felt trapped here and was yearning to return to
Australia to see his children.
"It's a hard time at the moment.
"I don't need to live there. I just want to visit.
"There should be some sort of legislation put in place -- three-day
visas, whatever, as long as I get to see my children."
Mr Sinoti is one of 75 Australian 501 deportees living around New
Zealand who are meeting Route 501 Advocacy and Support Ltd founder
Filipa Payne, of Christchurch.
Ms Payne is on a hikoi around the country, collecting information
from deportees to create a class action lawsuit against the
Australian government.
The lawsuit aims to hold the Australian government accountable for
human rights injustices concerning the treatment of deportees and
detainees (and their children where applicable) who have fallen
victim to the hard-line approach.
"We would like to see compassionate grounds for people to re-enter
Australia so they can deal with family deaths and attend
marriages," she said.
She took up the challenge after visiting one of the Australian
detention centres.
"I saw grown men that were overwhelmed and needing support, and I
found it very hard to leave the detention centre that day.
"I made a promise to myself and to the people in the centre, that I
would do everything I could to actively bring their voices and
their stories out.
"While this crisis is huge, we're optimistic.
"We know how we can make progress every day with the help of local
partners and generous supporters.
"If we work together, we believe everyone will have access to
life's most basic human rights within our lifetime." [GN]
AUTONATION INC: Guerrero Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Autonation, Inc. The
case is styled as Edelmira Guerrero, individually and on behalf of
all others similarly situated v. Autonation, Inc., Case No.
1:22-cv-00142 (S.D.N.Y., Jan. 6, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
AutoNation -- https://www.autonation.com/ -- is an American
automotive retailer based in Fort Lauderdale, Florida, which
provides new and pre-owned vehicles and associated services in the
United States.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: jmizrahi@mizrahikroub.com
BALTIMORE, MD: Black Female Officers File Discrimination Suit
-------------------------------------------------------------
James R. Sanders, writing for Complex, reports that Police Sgt.
Danika Yampierre gave birth to her third child on a sidewalk and
that's just one of the reasons she decided to press charges against
the Baltimore Police Department. She's joined by three other Black
women -- Sgts. Jasmin Rowlett and Welai Grant and former Sgt.
Tashawna Gaines.
Yampierre is a 15-year police veteran who in official documents
filed last year, states that she had to undergo emergency surgery
because of complications from the birth.
All the women allege they've faced discrimination based on race and
gender. Their reports which initially started as complaints, were
met with ridicule and retaliation.
"I would never want my children to experience this and to see
everything that I'm going through," Yampierre told NBC. "I'm
supposed to be their hero." In addition to race and discrimination,
Yampierre is also suing for discrimination based on
pregnancy-related disability.
The women are being represented by Dionna Maria Lewis, an attorney
who spoke to the increasing number of Black female police who are
reporting and seeking damages for discrimination and sexual
harassment, especially in big cities. "Now, we have law enforcement
women stepping up and finally saying enough is enough," she said.
In September, the assistant police chief in Washington, D.C. was
one of 10 Black women who filed a class-action lawsuit against the
city who was told as a cadet to get an abortion, or lose her job.
She was 18 at the time. The same week as the class-action suit, 3
cadets filed a separate complaint for retaliation and sexual
abuse.
A common theme across all cities has largely to do with race and
gender discrimination with sexual assault.
Last month, retired New York Policewoman Gillian Roberts, a Black
woman, filed suit against Capt. Jeffrey Brienza, a white man, she
alleges, raped her repeatedly even going as far as to arrange her
schedule to allow for more time with her. After filing an official
complaint with internal affairs, she began being called the
'Captain's Girl.'
Fear of retaliation is often a motivator for silence among Black
female police. Lt. Charla James-Hutchison, Sgt. Dione Alexander and
Sgt. Sabrina Braswell-Bouyer had each been with the Pierce County,
Washington, Sheriff's Department for more than 25 years and alleged
in their civil suit filed on Nov. 1, the department participated in
and ignored racial and gender-based discrimination and harassment
and allowed a "culture of animosity towards African Americans and
women to grow and fester."
As for Yampierre and the other three women, the Baltimore Police
Department declined comment. [GN]
BBBB BONDING: Order Barring Enforcement of Premium Agreement Upheld
-------------------------------------------------------------------
In the case, BBBB BONDING CORPORATION, Plaintiff, Cross-defendant
and Appellant v. KIARA CALDWELL, Defendant, Cross-complainant and
Respondent, Case No. A162453 (Cal. App.), the Court of Appeals of
California for the First District, Division One, affirms the trial
court's order enjoining the Appellant from enforcing bail bond
premium financing agreements entered into by Respondent Kiara
Caldwell and other similarly situated persons who had cosigned on
behalf of an arrestee without having first been provided with the
statutory notice.
I. Introduction
The appeal requires the Court to interpret a long-standing consumer
protection statute in a novel context: Whether the requirement
under Civil Code section 1799.91 that notice be afforded to
cosigners of consumer credit contracts about the risks of
guaranteeing such an agreement applies to bail bond premium
financing agreements.
In the putative class action, the trial court enjoined the
Appellant, doing business as Bad Boys Bail Bonds, from enforcing
bail bond premium financing agreements entered into by Caldwell and
other similarly situated persons who had cosigned on behalf of an
arrestee without having first been provided with this statutory
notice. BBBB asserts that this consumer protection law has never
applied to bail bond agents or to bail bond premium contracts
before. BBBB raises many substantive and procedural challenges to
the trial court's preliminary injunction, arguing primarily that
because the Legislature adopted a comprehensive scheme to regulate
the conduct of bail bond licensees, it intended to exclude from
such transactions the consumer protections applicable to consumer
credit contracts.
II. Background
On June 21, 2018, Caldwell was contacted by BBBB and informed that
her friend D.C. had been arrested and was being held in the City of
San Leandro jail. To bail her friend out, Caldwell was asked to
sign several documents and provide a bail bond premium. Caldwell
signed an "Unpaid Premium Agreement" in which she became legally
responsible for the bail bond premium of $5,000, representing 10
percent of D.C.'s bail. Pursuant to the Premium Agreement, Caldwell
agreed to make a downpayment of $500 and pay the balance due of
$4,500 in $450 monthly installments until paid in full.
Ms. Caldwell was also required to sign an "Indemnity Agreement for
Surety Bail Bond" with the North River Insurance Co. That contract
provided that the bail bond premium payment would be "fully earned"
upon D.C.'s release from jail, and would be renewed annually until
the surety was legally discharged from all liability on the bond
posted. Finally, Caldwell signed an "Indemnitor/Guarantor Check
List," which contained a series of acknowledgements, including an
acknowledgment that she was responsible for making payments on the
premium. She was told that D.C. would separately sign her own
copies of the same contracts. She asserts that she was not informed
of the financial risks associated with cosigning for D.C.'s bail
bond, and maintains that she would not have cosigned for the bail
bond premium if she had been provided with the section 1799.91
notice.
Ms. Caldwell was unable to make the installment payments beyond the
initial $500 deposit. BBBB attempted to collect from her,
repeatedly calling her phone, her mother, and her place of
employment in an effort to persuade her to resume payments. BBBB
representatives reportedly threatened litigation and claimed she
could lose her job if she did not make payments. Eventually,
Caldwell changed her cell phone number to avoid the repeated phone
calls. Other cosigners attested to similar aggressive collection
efforts by BBBB, including highly embarrassing calls to employers,
calls made to homes very early in the morning or late at night, and
calls in which BBBB representatives stated it could have the
cosigner arrested if payment was not made.
In October 2019, BBBB initiated a collection action by filing a
complaint for breach of contract and common counts against
Caldwell. BBBB alleged she had breached the Premium Agreement by
failing to pay the $4,500 owing on the bail bond premium.
In October 2020, Caldwell filed a class action cross-complaint
against BBBB alleging causes of action for violation of the unfair
competition law (Bus. & Prof. Code Section 17200 et seq.; UCL) and
declaratory judgment. She alleged that BBBB had engaged in an
unfair and unlawful business practice in violation of the UCL by
failing to provide statutory notice of the risks of cosigning a
consumer credit contract under section 1799.91.
Ms. Caldwell sought restitution of the money she and other putative
class members had paid for bail bond premiums, a declaratory
judgment that the Premium Agreements are unenforceable, and an
injunction prohibiting BBBB from enforcing these agreements and
requiring it to provide notice to cosigners in compliance with
section 1799.91. She also requested costs and attorney fees.
Ms. Caldwell then filed a motion for a preliminary injunction
seeking to enjoin BBBB from enforcing or attempting to collect on
Premium Agreements signed by cosigners who were not provided with
the notice required by section 1799.91. On April 8, 2021, the trial
court granted Caldwell's motion for a preliminary injunction.
The court enjoined BBBB from filing any actions to enforce or
collect on bail bond premium agreements against cosigners who were
not provided with section 1799.91 notice, or from otherwise
attempting to collect on such agreements. BBBB was also enjoined
from prosecuting any actions already filed, or seeking to enforce,
execute, or collect on any judgments against such cosigners. The
court also waived any bond requirement based on undisputed evidence
that the cost of posting an injunction bond would be well beyond
Caldwell's reach.
The trial court's ruling was stayed for 15 days. Shortly before
that stay expired, BBBB petitioned the Court of Appeals court for a
writ of supersedeas. The latter stayed the trial court's ruling and
ordered expedited briefing.
III. Analysis
At the center of the appeal are two statutory schemes: Consumer
credit protections under the Civil Code (Section 1799.90 et seq.),
and the Bail Bond Regulatory Act (Ins. Code, Section 1800 et
seq.).
A. Likelihood of Success on the Merits
BBBB raises numerous challenges to the trial court's determination
that Caldwell was likely to succeed on the merits of her UCL
claims. Because many of these contentions turn on questions of
statutory interpretation or other questions of law, the Court of
Appeals reviews such claims de novo.
i. The Bail Bond Industry Is Not Categorically Exempt From Consumer
Protection Statutes
BBBB first contends that consumer protection laws, such as the
cosigner notice provision, have no application to bail bond
transactions because the bail bond industry is governed by its own
statutory scheme—the Bail Bond Regulatory Act and its licensee
regulations. It in effect argues that because the Legislature
created a comprehensive scheme to regulate the conduct of bail bond
licensees, it intended to exclude from such transactions the
consumer protections applicable to other kinds of contracts.
The Court of Appeals finds that BBBB fails to support this argument
by reference to any statutory text, legislative history, or court
precedent. Nor does BBBB point to any provision of the Bail Bond
Regulatory Act or its regulations to support its argument that this
legal regime was intended to operate as the exclusive source of law
for the bail bond industry. Finally, BBBB has failed to identify
any conflict between the notice requirement of section 1799.91 and
any provision of the Insurance Code.
ii. The Bail Premium Financing Agreement Qualifies As a Consumer
Credit Contract
BBBB next asserts that the consumer credit contract laws have no
application because the Premium Agreement "is not a consumer credit
transaction within any plain understanding of that term." This
contention requires the Court of Appeas to construe the meaning of
these statutory provisions and whether they apply to the premium
financing agreements at issue in the appeal.
The Court of Appeals concludes that Caldwell's Premium Agreement
with BBBB qualifies as a consumer credit contract because Caldwell
signed an agreement (1) "to pay money on a deferred payment basis";
(2) the subject matter of the contract was "primarily for personal,
family or household purposes"; (3) the obligation involved an
"extension of credit" because Caldwell was allowed to satisfy her
bail premium obligation over a series of monthly payments; and (4)
Caldwell's obligation was "secured by other than real property, or
unsecured."
The transaction comports with the ordinary understanding of a
consumer credit contract involving an "extension of credit" under
Section 1799.90, subdivision (a)(4). BBBB also fails to explain how
it would construe the phrase "extensions of credit" under section
1799.90, subdivision (a)(4). In any event, while an extension of
credit overlaps to some degree with certain retail installment
contracts, the two subdivisions also address distinct consumer
credit situations.
iii. Caldwell Is a Cosigner Entitled to Statutory Notice
Because it concludes that the bail premium financing agreement at
issue is a consumer credit contract within the meaning of section
1799.90, the Court of Appeals holds that such contract is subject
to the consumer protections provided by statute, including the
notice provision to cosigners of a consumer credit contract. Unless
the signers are married to each other, "each creditor who obtains
the signature of more than one person on a consumer credit contract
will deliver to each person who does not in fact receive any of the
money, property, or services which are the subject matter of the
consumer credit contract" the statutorily prescribed written
notice. Such notice must be given to the cosigner "prior to that
person's becoming obligated on the consumer credit contract."
iv. BBBB's Additional Contentions
BBBB raises several additional arguments in its briefing, some
addressing the propriety of the trial court's issuance of the
preliminary injunction, and other arguments challenging the scope
of the relief ordered.
The Court of Appeals holds that (i) it declines BBBB's invitation
to draw any inference over the Legislature's failure to pass Senate
Bill No. 318; (ii) the trial court properly rejected the doctrine
of primary jurisdiction on the ground that "the question at issue
is one of interpretation of applicable statutes," which is "'an
inherently judicial function'"; (iii) BBBB has established grounds
to dismiss or stay the action under the doctrine of exclusive
concurrent jurisdiction; (iv) BBBB does not cite any precedent that
would have caused it to believe it was exempt from complying with
cosigner consumer notice protections or to perceive any unfairness
in enforcing the consumer protection laws at this juncture; and (v)
BBBB does not cite any Department regulation that "expressly" or
"explicitly" bars the relief sought by Caldwell under the consumer
credit protection statutes or "clearly permits" BBBB's conduct.
B. Balance of Hardships
As previously discussed, to demonstrate entitlement to preliminary
injunctive relief, a plaintiff must show both a probability that he
or she will prevail at trial, and that the "'"interim harm that the
plaintiff is likely to sustain if the injunction were denied
[(favored the plaintiff)] as compared to the harm the defendant is
likely to suffer if the preliminary injunction were issued."'"
The Court of Appeals holds that the trial court did not abuse its
discretion in excusing Caldwell from any bond requirement. The
court noted that BBBB cited no authority in support of its claim
that the court was required to take into account the financial
resources of putative class members. On appeal, BBBB does not
provide the Court of Appeals with any such authority. The latter
finds no error.
IV. Conclusion & Disposition
The Court of Appeals concludes that a bail bond premium financing
agreement between a cosigner and the bail bond agent is a consumer
credit contract subject to the notice provision of section 1799.91
and related statutory protections. No statute or regulatory
provision supports BBBB's claim that the legal regime governing
bail bond licensees was intended to operate as the exclusive source
of law for the bail bond industry. Nor is BBBB able to identify any
licensee provision that stands in conflict with the cosigner notice
requirement.
While it appreciates that this decision may upend business
expectations for bail bond agents, the Court of Appeals cannot
accept BBBB's urging that the injunction should apply only on a
prospective basis. To do so would deprive respondent and other
cosigners who never received statutory warning of the risks of
cosigning a bail bond premium financing agreement of the
protections the consumer credit laws were designed to address. The
Court of Appeals rejects BBBB's other challenges to the issuance of
the preliminary injunction and affirms the order.
A full-text copy of the Court's Dec. 29, 2021 Order is available at
https://tinyurl.com/2p9bf4nm from Leagle.com.
Law Offices of Jeffrey M. Cohon, APC, Jeffrey M. Cohon --
info@cohonlaw.com; Weintraub Tobin Law Corporation, Brendan J.
Begley, Charles L. Post, James Kachmar and Audrey A. Millemann for
the Plaintiff, Cross-defendant and Appellant.
Keker, Van Nest & Peters LLP, Laurie Carr Mims -- lmims@keker.com
-- Jay Rapaport, Niall Mackay Roberts, and Donna Zamora-Stevens;
Lawyers' Committee for Civil Rights of the San Francisco Bay Area,
Elisa Della-Piana, Zal K. Shroff and Rio Scharf for the Defendant,
Cross-complainant and Respondent.
Mitchell Silberberg & Knupp LLP, Mark C. Humphrey -- mxh@msk.com --
Elaine K. Kim and Alexandra Anfuso for Public Counsel, Community
Legal Services in East Palo Alto, National Consumer Law Center, The
Debt Collective, The Public Law Center, Watsonville Law Center, and
East Bay Community Law Center as Amicus Curiae on behalf of the
Defendant, Cross-complainant and Respondent.
Rob Bonta, Attorney General, Nicklas A. Akers, Assistant Attorney
General, Michele Van Gelderen, Michael Gowe, and Alicia K. Hancock,
Deputy Attorneys General for the Attorney General of the State of
California and the California Department of Insurance as Amicus
Curiae on behalf of the Defendant, Cross-complainant and
Respondent.
Willkie, Farr & Gallagher LLP, Eduardo E. Santacana --
esantacana@willkie.com -- and Joshua D. Anderson; Chesa Boudin,
District Attorney (San Francisco) and Alex Feigen Fasteau, Deputy
District Attorney for Prosecutors Alliance of California and
District Attorney of the City and County of San Francisco as Amicus
Curiae on behalf of the Defendant, Cross-complainant and
Respondent.
BERKELEY LIGHTS: Rosen Law Firm Reminds of February 7 Deadline
--------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, reminds
purchasers of the securities of Berkeley Lights, Inc. (NASDAQ: BLI)
between July 17, 2020 and September 14, 2021, inclusive (the "Class
Period"), of the important
February 7, 2022 lead plaintiff deadline.
SO WHAT: If you purchased Berkeley Lights securities during the
Class Period you may be entitled to compensation without payment of
any out of pocket fees or costs through a contingency fee
arrangement.
WHAT TO DO NEXT: To join the Berkeley Lights class action, go to
http://www.rosenlegal.com/cases-register-2222.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than February 7, 2022.
A lead plaintiff is a representative party acting on behalf of
other class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Many of these firms do not actually
litigate securities class actions. Be wise in selecting counsel.
The Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) Berkeley Lights' flagship
instrument, the Beacon, suffered from numerous design and
manufacturing defects including breakdowns, high error rates, data
integrity issues and other problems, limiting the ability of
biotechnology companies and research institutions to consistently
use the machines at scale; (2) Berkeley Lights had received
numerous customer complaints regarding the durability and
effectiveness of Berkeley Lights' automation systems, including
complaints related to the design and manufacturing; (3) the actual
market for Berkeley Lights' products and services was a fraction of
the $23 billion represented to investors because of, among other
things, the relatively high cost of Berkeley Lights' instruments
and consumables and inability to provide the sustained performance
necessary to justify these high costs; and (4) as a result,
defendants' statements to investors during the Class Period
regarding Berkeley Lights' business, operations, and financial
results were materially false and misleading. When the true details
entered the market, the lawsuit claims that investors suffered
damages.
To join the Berkeley Lights class action, go to
http://www.rosenlegal.com/cases-register-2222.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
BITMART EXCHANGE: Class Action Mulled Over $200MM Hack
------------------------------------------------------
Emma Roth, writing for The Verge, reports that cryptocurrency
exchange BitMart promised a full reimbursement to the victims of
the platform-wide $200 million hack, but some users still haven't
gotten their money back, according to a report from CNBC. Hackers
made off with a variety of tokens on December 4th after using a
stolen privacy key to gain access to one of BitMart's hot wallets,
otherwise known as a crypto wallet that's connected to the
internet.
Shortly after the incident, BitMart announced that it would use its
own funding "to cover the incident and compensate affected users."
However, as CNBC reports, there are still several frustrated users
who have yet to see their funds returned.
CNBC's report details the experience of an Iranian refugee who says
he stored $53,000 worth of SafeMoon on BitMart, $40,000 of which is
from a loan. The outlet also got in touch with a Kansas-based
investor who has $35,000 in limbo -- he claims that he and 6,800
other investors may file a class-action lawsuit against BitMart if
nothing's done to resolve the situation.
Of all the tokens stolen in the BitMart hack, data from blockchain
security company, PeckShield, shows that SafeMoon was hit hardest.
As pointed out by CNBC, SafeMoon holders are fighting back on
Twitter, and have been flooding the site with the #WenBitMart
hashtag to demand the return of their funds. This may be the only
way users feel they can call attention to the issue, as CNBC
reports some users are met with vague responses when contacting
BitMart to check on the status of their lost funds.
It remains unclear just how BitMart plans on reimbursing all
affected users. CNBC notes that while the exchange could buy back
all of the tokens lost, it may be doing so when those tokens are at
a much higher value. Other users question whether BitMart will be
using some form of insurance to pay users back. The Verge reached
out to BitMart with a request for comment but didn't immediately
hear back. [GN]
BLUE LINE: Fails to Pay Overtime Wages, Delmonte Suit Claims
------------------------------------------------------------
The case, MARCOS DELMONTE, on behalf of himself and all other
persons similarly situated, known and unknown, Plaintiff v. BLUE
LINE SECURITY SOLUTIONS LLC, Defendant, Case No. 1:21-cv-06815
(N.D. Ill., December 22, 2021), arises from the Defendant's alleged
willful violations of the Fair Labor Standards Act and the Illinois
Minimum Wage Law.
The Plaintiff has worked for the Defendant in a non-exempt security
role.
The Plaintiff alleges that the Defendant failed to properly
compensate him. Although he worked more than 40 hours in one or
more weeks during his employment with the Defendant, the Defendant
did not pay him overtime pay at the rate of one and one-half times
his regular rate of pay when he worked more than 40 hours per
workweek, says the Plaintiff.
The Plaintiff brings this complaint as a collective and class
action seeking to recover all unpaid overtime wages owed to him and
all other similarly situated employees who joined this lawsuit. The
Plaintiff also seeks liquidated and punitive damages, reasonable
attorneys' fees and litigation costs, and other relief as the Court
deems just and proper.
Blue Line Security LLC is a private security company that provides
security services to private and public sector clients throughout
the Midwest. [BN]
The Plaintiff is represented by:
Douglas M. Werman, Esq.
Bernard K. Schott, Esq.
WERMAN SALAS P.C.
77 W. Washington St., Ste. 1402
Chicago, IL 60602
Tel: (312) 419-1008
E-mail: dwerman@flsalaw.com
bschott@flsalaw.com
BRIGHT HEALTH: Robbins Geller Reminds of March 7 Deadline
---------------------------------------------------------
Robbins Geller Rudman & Dowd LLP on Jan. 9 disclosed that
purchasers of: (a) Bright Health Group, Inc. (NYSE: BHG) common
stock pursuant and/or traceable to the offering documents issued in
connection with Bright Health's initial public offering conducted
on or about June 24, 2021 (the "IPO"); and/or (b) Bright Health
securities between June 24, 2021 and November 10, 2021, both dates
inclusive (the "Class Period") have until March 7, 2022 to seek
appointment as lead plaintiff in Marquez v. Bright Health Group,
Inc., No. 22-cv-00101 (E.D.N.Y.). Commenced on January 6, 2022, the
Bright Health class action lawsuit charges Bright Health and
certain of its top executives and directors with violations of the
Securities Act of 1933 and/or Securities Exchange Act of 1934.
If you wish to serve as lead plaintiff of the Bright Health class
action lawsuit, please provide your information by clicking here.
You can also contact attorney J.C. Sanchez of Robbins Geller by
calling 800/449-4900 or via e-mail at jsanchez@rgrdlaw.com. Lead
plaintiff motions for the Bright Health class action lawsuit must
be filed with the court no later than March 7, 2022.
CASE ALLEGATIONS: Bright Health is an integrated care delivery
company that engages in the delivery and financing of health
insurance plans in the Unites States. Through its IPO, Bright
Health sold approximately 51 million shares of its common stock to
the public at the offering price of $18.00 per share, for
approximate proceeds of $887 million to Bright Health after
applicable underwriting discounts and commissions, and before
expenses. On or about June 24, 2021, Bright Health's common stock
began trading on the New York Stock Exchange under the trading
symbol BHG.
The Bright Health class action lawsuit alleges that the IPO's
offering documents were negligently prepared and, as a result,
contained untrue statements of material fact or omitted to state
other facts necessary to make the statements made not misleading
and were not prepared in accordance with the rules and regulations
governing their preparation. The Bright Health class action lawsuit
further alleges that the IPO's offering documents and defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (i) Bright Health had overstated
its post-IPO business and financial prospects; (ii) Bright Health
was ill-equipped to handle the impact of COVID-19-related costs;
(iii) Bright Health was experiencing a decline in premium revenue
because of a failure to capture risk adjustment on newly added
lives; (iv) all the foregoing was reasonably likely to have a
material negative impact on Bright Health's business and financial
condition; and (v) as a result, the IPO's offering documents and
defendants' public statements throughout the Class Period were
materially false and/or misleading and failed to state information
required to be stated therein.
On November 11, 2021, Bright Health reported its third quarter 2021
results. Among other results, Bright Health reported earnings per
share of $0.48 as calculated under United States Generally Accepted
Accounting Principles, missing consensus estimates by $0.31. Bright
Health also reported a sharp rise in Bright Health's medical cost
ratio ("MCR"), advising investors that its MCR "for the third
quarter of 2021 was 103.0%, which includes a 540 basis point
unfavorable impact from COVID-19 related costs and a 900 basis
point unfavorable impact primarily from a cumulative reduction in
premium revenue due to an inability to capture risk adjustment on
newly added lives." On this news, Bright Health's stock price fell
by more than 32%, damaging investors.
As of the time the Bright Health class action lawsuit was filed,
the price of Bright Health common stock continues to trade below
the $18.00 per share offering price.
THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation
Reform Act of 1995 permits any investor who purchased: (a) Bright
Health common stock pursuant and/or traceable to the offering
documents issued in connection with Bright Health's IPO; and/or (b)
Bright Health securities during the Class Period to seek
appointment as lead plaintiff in the Bright Health 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 Bright Health class action lawsuit. The lead plaintiff can
select a law firm of its choice to litigate the Bright Health class
action lawsuit. An investor's ability to share in any potential
future recovery of the Bright Health 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 that 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]
CANADA: Settles First Nations Child Welfare System Class Lawsuits
-----------------------------------------------------------------
Anne Levesque, writing for Thorold Today, reports that the
government of Canada announced it had reached
agreements-in-principle to compensate First Nations victims of its
discriminatory child welfare system and to fund long-term reform of
both the First Nations Child and Family Services and Jordan's
Principle -- a legal rule aiming to ensure equitable access to
public services for First Nations children.
The agreements-in-principle were reached following nearly two
months of negotiations between the First Nations Child and Family
Caring Society, the Assembly of First Nations, the Chiefs of
Ontario, the Nishnawbe Aski Nation and counsels for two class
action cases -- Xavier Moushoom and Zach Trout.
As a researcher in public interest litigation and human rights, and
one of the lawyers who represented the First Nations Child and
Family Caring Society in its human rights case -- which led to a
historic victory in 2016 before the Canadian Human Rights Tribunal
and affirmed the right to equality for more than 165,000 First
Nations children -- here's what you need to know about the
agreements.
What's in the agreements?
The agreements represent a commitment of the concerned parties to
work together to agree on the details to compensate First Nations
children and their caregivers who were harmed by Canada's
discriminatory conduct. They also include a commitment to develop
and put in place long-term reforms to end ongoing racial
discrimination.
One agreement includes $20 billion in compensation for First
Nations children on-reserve and in the Yukon who were removed from
their homes by child and family services agencies between April 1,
1991, and March 31, 2022.
It includes compensation for those who were impacted by the
government's narrow definition of Jordan's Principle between Dec.
12, 2007, and Nov. 2, 2017, and for children who did not receive or
were delayed receiving an essential public service or product
between April 1, 1991, and Dec. 11, 2007.
The other agreement includes approximately $20 billion for
long-term reform of the First Nations Child and Family Services
Program. These reforms include additional resources to develop and
implement prevention initiatives that will help children and
families stay together, and could be implemented as early as April
of this year.
Legal basis for the agreements-in-principle
The compensation and the long-term reform in the agreements aim to
address a historic decision made by the Canadian Human Rights
Tribunal (CHRT), which found that Canada was racially
discriminating against First Nations children and their families on
the basis of their race, ethnic and/or national origin, contrary to
Sec. 5 of the Canadian Human Rights Act (CHRA).
In particular, the CHRT found that Canada's funding and provision
of welfare services create incentives for taking children into
state care, and perpetuate disadvantages historically suffered by
First Nations Peoples in Canada.
The CHRT also found that Canada was applying Jordan's Principle too
narrowly and in a manner that caused First Nations children to be
denied equitable public services. Shockingly, Canada chose not to
comply with the legally binding decision and the tribunal was
required to issue more than a dozen non-compliance orders that
detailed the precise measures the government must take to reduce
the harmful impacts of discrimination against First Nations
children and their families.
In one of the non-compliance orders, the CHRT described Canada's
discrimination against First Nations children as a "worst-case
scenario" under the CHRA and found its conduct to be willful and
reckless.
The Federal Court of Canada agreed with the CHRT and found its
conclusions to be reasonable. In dismissing Canada's judicial
reviews, the Federal Court also urged Canada to act now to remedy
this unprecedented discrimination in order to fix its damaged
relationships with Indigenous Peoples in Canada.
Why compensation, long-term reform are key
While no amount of money can remedy the harm suffered by First
Nations children as a result of Canada's discrimination,
compensation is an essential element to recognizing the human
rights violations they have experienced.
As emphasized by the UN Special Rapporteur on the promotion of
truth, justice, reparation and guarantees of non-recurrence,
compensation allows "victims to gain trust in the State, to be
acknowledged as rights holders, and, potentially, to be
empowered."
The compensation is also important for the government of Canada
-- the perpetrator -- because it demonstrates that it understands
its conduct was wrong. The compensation helps promote
accountability.
Most importantly, the long-term reform of child welfare services
for First Nations children and the implementation of Jordan's
Principle is required to put an end to Canada's ongoing
discrimination.
As affirmed to Marie Wilson (one of the three commissioners for the
Truth and Reconciliation Commission of Canada) during the course of
litigation, the harms experienced by children today when removed
from their families, homes and communities are comparable to the
experiences of those who attended residential schools.
All of this is necessary to ensure that no other generation of
First Nations children will be harmed by Canada's discriminatory
conduct.
What still needs to be done?
As emphasized by Cindy Blackstock, executive director of First
Nations Child and Family Caring Society, the agreements are for now
non-binding, and important discussions still need to occur in 2022.
Success must be measured by the actual impact on the lives of First
Nations children.
While the agreements were reached in response to a 15-year legal
battle against Canada, these legal victories would not have been
possible without the support of Canadians. After the graves of
children who died in Indian Residential Schools were found,
countless Canadians stood in solidarity with Indigenous communities
and demanded the government not repeat mistakes of the past.
This year, public support will be needed more than ever to ensure
that the spirit of the agreement is respected and translated into
meaningful change for First Nations children. As stated by a
survivor of Canada's discriminatory child welfare system, there
will be a brighter future for First Nations children if the
injustices they experienced will no longer be ignored and their
stories are heard. [GN]
CHEGG INC: Rosen Law Firm Reminds of February 22 Deadline
---------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, reminds
purchasers of the securities of Chegg, Inc. (NYSE: CHGG) between
May 5, 2020 and November 1, 2021, inclusive (the "Class Period"),
of the February 22, 2022 lead plaintiff deadline.
SO WHAT: If you purchased Chegg securities during the Class Period
you may be entitled to compensation without payment of any out of
pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the Chegg class action, go to
http://www.rosenlegal.com/cases-register-2232.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than February 22, 2022.
A lead plaintiff is a representative party acting on behalf of
other class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources, or
any meaningful peer recognition. Many of these firms do not
actually litigate securities class actions. Be wise in selecting
counsel. The Rosen Law Firm represents investors throughout the
globe, concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) Chegg's increase in
subscribers, growth, and revenue had been a temporary effect of the
COVID-19 pandemic that resulted in remote education for the vast
majority of United States students and once the pandemic-related
restrictions eased and students returned to campuses nationwide,
Chegg's extraordinary growth trends would end; (2) Chegg's
subscriber and revenue growth were largely due to the facilitation
of remote education cheating – an unstable business proposition -
rather than the strength of its business model or the acumen of its
senior executives and directors; and (3) as a result, Chegg's
current business metrics and financial prospects were not as strong
as it had led the market to believe during the Class Period. When
the true details entered the market, the lawsuit claims that
investors suffered damages.
To join the Chegg class action, go to
http://www.rosenlegal.com/cases-register-2232.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
CHILDREN'S HOSPITAL: De La Pena's Bid for Writ of Mandate Granted
-----------------------------------------------------------------
In the case, CECILIA DE LA PENA, Petitioner v. THE SUPERIOR COURT
OF ORANGE COUNTY, Respondent; CHILDREN'S HOSPITAL OF ORANGE COUNTY,
Real Party in Interest, Case No. G059830 (Cal. App.), the Court of
Appeals of California for the Fourth District, Division Three,
granted De La Pena's petition for a writ of mandate.
Introduction
De La Pena worked as an emergency department monitor technician
(EDMT) for Children's Hospital of Orange County (CHOC). She filed a
complaint alleging CHOC violated wage and hour laws, and sued CHOC
both as a class representative and as a Private Attorney General
Act (PAGA) representative. As pertinent in the case, the trial
court granted summary adjudication in favor of CHOC on De La Pena's
cause of action for unpaid overtime. De La Pena filed a petition
for a writ of mandate, seeking to set aside the trial court's
order.
Background
On Jan. 23, 2013, CHOC conditionally offered De La Pena the
position of EDMT. In so doing, CHOC informed De La Pena that "they
anticipate her date of hire to be Feb. 19, 2013 in accordance with
their next scheduled Hospital Orientation." De La Pena worked as an
EDMT at CHOC from Feb. 19, 2013, to Jan. 26, 2018.
On Jan. 30, 2013, after CHOC offered De La Pena the EDMT position,
but before she started working, her work unit approved an
alternative workweek schedule involving 12-hour shifts. The unit
that approved the alternative schedule consisted of one employee,
not De La Pena.
On Feb. 19, 2013, De La Pena acknowledged she would be covered by
the terms of the Alternative Workweek Schedule (AWS). The AWS
stated De La Pena's regular schedule would consist of three,
12-hour shifts. De La Pena generally worked three, 12-hour shifts
per week.
In January 2019, De La Pena filed the operative complaint. It set
forth seven causes of action: (1) failure to pay all overtime and
double time wages (Labor Code, Sections 510, 11941 & Wage Order No.
5-2001); (2) failure to provide meal periods (Sections 512, 226.7 &
Wage Order No. 5-2001; (3) failure to provide rest periods
(Sections 512, 226.7 & Wage Order No. 5-2001); (4) failure to pay
all wages due at separation (Sections 201, 203); (5) failure to
provide accurate wage statements (Section 226); (6) unfair
competition (Bus. & Prof. Code, Sections 17200, et seq.); and (7)
Private Attorneys General Act (Sections 2698, et seq.).
CHOC's affirmative defense alleged that all of the operative
complaint's claims were barred because the "Plaintiff and the
putative class she seeks to represent were exempt from the daily
overtime provisions based upon the valid adoption of an alternative
workweek schedule."
Among other things, De La Pena's deposition testimony stated she
never received overtime compensation when working "short shifts"
(shifts lasting over eight hours but less than 12 hours) because
CHOC coerced employees into "'volunteering'" to leave early to
avoid paying overtime compensation. Her deposition testimony also
stated she performed chart audits off the clock without receiving
overtime compensation.
The trial court granted summary adjudication in CHOC's favor as to
the overtime cause of action. De La Pena sought writ relief from
the trial court's order.
On March 12, 2021, the Court of Appeals entered an alternative writ
ordering the trial court to: "(1) vacate the order granting summary
adjudication, and enter a new order following a hearing directed to
the question of whether summary adjudication of the overtime cause
of action should be granted; Or, in the alternative, (2) show cause
before the Court why a peremptory writ of mandate should not
issue."
It explained: "De La Pena claims respondent court's Dec. 11, 2020
order incorrectly granted summary adjudication of the Petitioner's
cause of action for unpaid overtime. CHOC asserts that the theories
of recovery were not adequately pleaded in the operative complaint.
It also posits that De La Pena's testimony does not create a
triable issue of fact because it is undisputed that she was paid
for all overtime actually reported on her timesheets. The
respondent court did not explicitly rule on this specific dispute
in its order."
The trial court chose not to comply with the Court of Appeals'
order's first alternative. As a result, CHOC filed a return, and De
La Pena filed a formal reply.
Discussion
De La Pena asserts the trial court incorrectly granted summary
adjudication on her first cause of action for unpaid overtime. She
contends CHOC failed to comply with mandatory AWS disclosure
requirements and erred by finding she was not an affected employee
at the time of the AWS vote. De La Pena also argues that even if
the AWS was valid, she demonstrated a triable issue of material
fact for unpaid overtime and double time premiums.
The Court of Appeals agrees that the trial court erred by granting
summary adjudication because De La Pena established a triable issue
of material fact as to her claims for unpaid overtime and double
time premiums.
I. Review by Petition for Writ of Mandate Is Appropriate
At the outset, the Court of Appeals considers CHOC's assertion that
De La Pena failed to identify any circumstances that warrant writ
review. It opines that CHOC correctly states "appealing from a
judgment after trial ordinarily provides an adequate remedy at law
for a party aggrieved by an order granting summary adjudication."
However, "the adequacy of an appellate remedy depends on the
circumstances of the case, thereby necessarily vesting a large
measure of discretion in the appellate court to grant or deny a
writ." In the case, the Court of Appeals finds several factors that
persuade it to exercise our discretion and consider the merits of
the petition. Because the trial court granted summary adjudication
where there remained a triable issue of material fact, it
constituted an abuse of discretion.
II. Standard of Review
In reviewing an order granting summary adjudication, the Court of
Appeals applies the same standard of review applicable on appeal
from a grant of summary judgment. Accordingly, it takes the facts
from the record that was before the trial court when it ruled on
that motion. It reviews the trial court's decision de novo,
considering all the evidence set forth in the moving and opposing
papers except that to which objections were made and sustained. It
liberally construes the evidence in support of the party opposing
summary adjudication and resolves doubts concerning the evidence in
favor of that party.
III. Adequacy and Accuracy of AWS Disclosures
De La Pena asserts the trial court ignored the purportedly
misleading disclosures provided by CHOC about the AWS and overtime
payments.
The Court of Appeals determines the disclosures were appropriate as
a matter of law. It finds that the actual contract De La Pena
signed stated that changes to her scheduled alternative shift would
only occur in compliance "with all applicable legal requirements."
Thus, the contract incorporated the wage order requirement that
overtime must be paid for hours greater than eight if a scheduled
12-hour shift is cut short. The record demonstrated CHOC's official
policy was to comply with the law in this area. Accordingly, the
AWS disclosures were valid and enforceable as a matter of law.
IV. Adequacy of Employee Vote to Approve AWS
De La Pena argues the trial court erred by making a factual finding
she was not an affected employee, entitled to vote on whether to
approve AWS. She also contends the secret ballot requirement
included in the wage orders for approval of alternative work
schedules are undermined by having a single employee in the
"affected employees in the work unit."
However, as the trial court accurately noted in its order, the
Court of Appeals opines that a work unit may consist of one
employee. It finds no error. Employees who begin working after an
AWS election do not constitute affected employees before their
first day of work. While the timing of the AWS vote precluded De La
Pena from participating, CHOC informed her of the AWS before she
started working. It makes practical sense that newly hired
employees who have been offered a position subject to a background
check or other formalities are not entitled to vote before they
start working. Otherwise, an employer could end up with a policy
voted on by people who never ultimately become employees.
Furthermore, there are protections for employees who object to the
AWS. De La Pena could have sought to repeal the arrangement or opt
out, and CHOC would have been required to make reasonable efforts
to provide such an accommodation. There is no evidence De La Pena
did either. In fact, it appears she had no concern with the AWS at
any time prior to the filing of this lawsuit. De La Pena concedes
she started working 20 days after the AWS election and raises no
legal grounds for this court to determine she was an affected
employee at that time. Accordingly, she raises no material factual
dispute as to whether she was an affected employee. The trial court
did not err.
V. Other Evidence of Overtime Violations
De La Pena asserts her deposition testimony established a triable
issue of fact regarding whether she worked: "Off the clock" hours
(work performed at home in addition to her normal schedule at the
direction of her supervisors) and involuntary "short shift" hours
(which were improperly classified as voluntary decisions by
employees to leave work early before the completion of a 12-hour
shift). CHOC counters these theories of recovery were not
adequately pleaded in the operative complaint. It also posits De La
Pena's testimony does not create a triable issue of fact because it
is undisputed she was paid for all overtime actually reported on
her timesheets.
De La Pena has the better argument, the Court of Appeals finds. A
review of the operative complaint reveals the validity of the AWS
is not pleaded. But particularity is not required in this type of
claim. The Plaintiffs are required only to set forth the essential
facts of their case with reasonable precision and with
particularity sufficient to acquaint a defendant with the nature,
source and extent of his cause of action. Perfection is not
required at this early stage of the proceedings. Because De La
Pena's deposition testimony raised a triable issue of material fact
as to off the clock and short shift payments, these claims must
survive summary adjudication.
VI. Request for Judicial Notice
De La Pena requests that the Court of Appeals takes judicial notice
of various articles regarding the law in this area, as well as
relevant excerpts from the Division of Labor Standards Enforcement
Policies and Interpretations Manual, including sections 43.4.1,
50.2, 56.1, 56.10.1, 56.22.2. The Court of Appeals will grant the
request as to exhibit No. 7, but otherwise deny as to the articles.
They are not the proper subject of judicial notice.
Disposition
Let a peremptory writ of mandate issue directing the Orange County
Superior Court to vacate its Dec. 11, 2020-order granting CHOC
summary adjudication on the first cause of action. The court will
enter a new order, in accordance with the views expressed in the
Court of Appeals' Opinion, denying CHOC's motion for summary
adjudication on the first cause of action. De La Pena's request for
judicial notice is granted as to exhibit No. 7. The case is
remanded to the trial court for further proceedings consistent with
the Opinion. De La Pena will recover her costs.
A full-text copy of the Court's Dec. 29, 2021 Opinion is available
at https://tinyurl.com/yckw87wy from Leagle.com.
The Myers Law Group, David P. Myers -- dmyers@myerslawgroup.com --
Jason Hatcher -- jhatcher@myerslawgroup.com -- and Morgan Good for
the Petitioner.
No appearance for Respondent.
Littler Mendelson, Stacey E. James -- sjames@littler.com -- and
Luis E. Lorenzana -- llorenzana@littler.com -- for Real Party in
Interest.
CITRIX SYSTEMS: Rosen Law Firm Reminds of January 18 Deadline
-------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, reminds
purchasers of the securities of Citrix Systems, Inc. (NASDAQ: CTXS)
between January 22, 2020 and October 6, 2021, inclusive (the "Class
Period"), of the important January 18, 2022 lead plaintiff
deadline.
SO WHAT: If you purchased Citrix securities during the Class Period
you may be entitled to compensation without payment of any out of
pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the Citrix class action, go to
http://www.rosenlegal.com/cases-register-2216.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than January 18, 2022.
A lead plaintiff is a representative party acting on behalf of
other class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Many of these firms do not actually
litigate securities class actions. Be wise in selecting counsel.
The Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period willfully or recklessly made false and
misleading statements to the investing public that failed to
disclose that the cloud product was substantially similar to the
on-premise offering, and that the Company was experiencing
significant challenges transitioning customers from on-premise to
the cloud. When the true details entered the market, the lawsuit
claims that investors suffered damages.
To join the Citrix class action, go to
http://www.rosenlegal.com/cases-register-2216.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
CONCUR TECHNOLOGIES: Contreras Files ADA Suit in S.D. New York
--------------------------------------------------------------
A class action lawsuit has been filed against Concur Technologies,
Inc. The case is styled as Yensy Contreras, individually and on
behalf of all others similarly situated v. Concur Technologies,
Inc., Case No. 1:22-cv-00133 (S.D.N.Y., Jan. 6, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Concur -- https://www.concur.com/ -- is an American SaaS company,
providing travel and expense management services to
businesses.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
CREDIT BUREAU: $265K in Attys.' Fees, Costs Awarded in Bassett Suit
-------------------------------------------------------------------
In the case, KELLY M. BASSETT, individually and as heir of JAMES M.
BASSETT, on behalf of herself and all other similarly situated,
Plaintiff v. CREDIT BUREAU SERVICES, INC., and C. J. TIGHE,
Defendants, Case No. 8:16CV449 (D. Neb.), Judge Joseph F. Bataillon
of the U.S. District Court for the District of Nebraska:
(i) granted the Plaintiff class' motion for attorney fees;
(ii) denied the Defendants' motion to stay the injunction; and
(iii) denied the Defendants' motion for approval of a bond in
the amount of $52,000.
Introduction
The matter is before the Court on the Plaintiff's motion for
attorneys' fees, and related motions to stay injunction, and for
approval of bond. The class action for violations of the Fair Debt
Collection Practices Act ("FDCPA"), 15 U.S.C. Section 1692 et seq.,
and the Nebraska Consumer Protection Act ("NCPA"), Neb. Rev. Stat.
Section 59-1601 et seq., was tried to the Court and a jury on June
15-18, 2021. The Court awarded statutory damages under the FDCPA
and NCPA, reasonable costs and attorneys' fees, and injunctive
relief to the Plaintiff.
Background
The Plaintiff class is the prevailing party in the litigation. The
class moves for an award of costs and attorneys' fees in the amount
of $257,116. That amount represents a discount of $48,287.50 in
counsels' fees from the lodestar amount.
In support of the motion, the Plaintiff class has shown that
attorney O. Randolph Bragg expended 106.72 hours at the discounted
rate of $450 per hour, for a total of $48,022.50. Further, he
advanced expenses to the class in the amount of $5,193.99, for
providing notice to the class.
The Plaintiff has shown that Pamela A. Car worked 185.15 hours on
behalf of the Plaintiff and the class at the hourly rate of $400 to
$415 per hour, for a total of $74,705. Attorney Car states that she
reduced time in the exercise of billing discretion to eliminate
time for duplicate tasks and most meetings attended with
co-counsel.
The Plaintiff has also shown that Attorney William L. Reinbrecht
worked 435.7 hours at an hourly rate of $400 per hour, for a total
of $174,280. Attorney Reinbrecht states he expended $3,202.01 in
costs and expenses and $13,000 in expert witness fees. He further
states that the report of net-worth expert and accountant, Roman
Basi, was crucial to the case in that it led to a stipulation of
the Defendants' net worth. All the attorneys have shown they have
extensive experience and expertise in this sort of litigation.
Plaintiff Kelly Bassett seeks a $7,500 incentive payment as class
representative. Ms. Bassett submits a declaration stating she
participated in numerous meetings and telephone calls in
preparation for the case, as well as reviewing documents and
attending trial.
The Plaintiff class also seeks reimbursement of costs and expenses,
including the cost of notice to the class, and fees for net worth
expert and accountant. The class argues the expert report was
necessary because the defendants failed to answer the Plaintiffs'
net worth inquiries sincerely. They also contend Mr. Basi's expert
report and rebuttal resulted in the net worth stipulation, which
shortened the trial and benefitted the class.
The Defendants object to the award of fees. They argue that the
hours expended are unreasonable and the hourly rates are excessive,
contending that a reasonable rate would be no more than $225 per
hour. The Defendants contend that any fee award should be limited
to a maximum of $60,000, in view of the small recovery to the
class. They also argue that certain charges are duplicative and/or
excessive and challenge the incentive award and expert witness fee.
Further, they assert the Plaintiff has not provided sufficient
documentation for the costs and expenses.
The Defendants have filed an appeal. They move to stay the Court's
injunction pending the appeal. The Eighth Circuit Court of Appeals
has denied a motion to stay the injunction filed in that Court. The
Plaintiff class opposes the motion, arguing that staying the
injunction would result in significant harm to consumers.
The Defendants also seek approval of a cash bond in the amount of
$52,000 to stay the monetary portion of the Court's judgment. The
Plaintiff objects to approval of a bond in that amount, noting that
a bond in that amount would not cover any potential award of
attorney fees.
Discussion
Judge Bataillon finds that the plaintiff class, as the prevailing
party, is entitled to attorneys' fees. The plaintiff class has
achieved a significant degree of success in that it has recovered
the maximum amount of statutory damages under the FDCPA and NCPA.
They have also achieved significant prospective relief in that the
defendants have agreed to make changes in their form collection
letters.
The Court has reviewed the declarations of counsel and time records
submitted in connection with the motion and finds the hours and
labor expended on the case were reasonable and necessary to
prosecute a case of this nature. The defendants' vigorous defense
of the suit added to the fees incurred by the plaintiff class. The
Court also finds, based on its familiarity with fees in this
community, that rates of $400.00 per hour for the attorneys
involved are appropriate in view of their skill, experience, and
the complexity of class-action consumer litigation. These amounts
are in line with fee awards in other cases. Mr. Bragg's fees are
adjusted accordingly.
The expenses requested (court reporter fees, filing, notice, and
service fees) are recoverable as costs. The Court finds that the
net-worth expert's testimony was crucial to the issues decided and
the expenditure was necessary to the litigation. The plaintiff
class is entitled to recover the expert witness fees. The Court has
reviewed the bill of costs and finds that the costs are fair and
reasonable and were necessary to prosecute the claims on behalf of
the class.
The Court finds that a stay of the injunction is not warranted. As
noted in the Court's earlier order, it has long been clear that
interest cannot be assessed prejudgment and without an agreement.
Filing No. 234, Memorandum and Order at 11. Based on familiarity
with the litigation and the defendants, the Court finds injunctive
relief should not be stayed. The defendants have shown neither
irreparable harm nor that they will likely succeed on the merits of
the appeal. Accordingly, the motion to stay the injunction is
denied.
Because the Court will award attorney fees, a bond in the amount of
$52,000 will not be sufficient to protect the Plaintiffs' interests
pending appeal. The motion for approval of supersedeas bond is
denied.
Order
Judge Bataillon granted the Plaintiff class's motion for attorney
fees. The Plaintiff class is awarded attorney fees and costs in the
amount $265,281.50. Representative Plaintiff, Kelly Basset, is
awarded an incentive payment in the amount of $7,500.
Judge Bataillon denied the Defendants' motion to stay the
injunction and motion for approval of a bond in the amount of
$52,000.
A judgment in conformity with the Memorandum and Order will be
entered.
A full-text copy of the Court's Dec. 29, 2021 Memorandum & Order is
available at https://tinyurl.com/4tft5pkm from Leagle.com.
DAVID WELLS: Faces Schmidt Suit Over Laborers' Unpaid OT Wages
--------------------------------------------------------------
JOSEPH SCHMIDT, individually and on behalf of all others similarly
situated, Plaintiff v. DAVID WELLS, JR. d/b/a TEXAS GOLD SKIDDOS
and DAVID WELLS, JR., Defendants, Case No. 2:21-cv-00304 (S.D.
Tex., December 22, 2021) brings this collective action complaint
against the Defendants seeking all available relief pursuant to the
Fair Labor Standards Act.
The Plaintiff has worked for the Defendants as a general laborer
from approximately 2017 through October 2020.
The Plaintiff claims that he and other similarly situated laborers
were improperly classified by the Defendants as independent
contractors. Despite regularly working in excess of 40 hours per
week, they never received 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, says the Plaintiff.
Texas Gold Skiddos is the newest Portable Toilet Rental and Septic
Pumping company in town" that provides portable toilet rentals and
a "multitude of other Septic System services such as Septic Pumping
and Septic System Installation" to its customers. David Wells, Jr.
has the power to hire and fire the Plaintiff and other similarly
situated general laborers, and has the power to supervise and
control their work schedules and conditions of their employment.
[BN]
The Plaintiff is represented by:
Clif Alexander, Esq.
Austin W. Anderson, Esq.
Lauren E. Braddy, Esq.
ANDERSON ALEXANDER, PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Tel: (361) 452-1279
Fax: (361) 452-1284
E-mail: clif@a2xlaw.com
austin@a2xlaw.com
lauren@a2xlaw.com
DAYBREAK SOLAR: Cunningham Files TCPA Suit in W.D. North Carolina
-----------------------------------------------------------------
A class action lawsuit has been filed against Daybreak Solar Power,
LLC. The case is styled as Craig Cunningham, individually and on
behalf of a class of all persons and entities similarly situated v.
Daybreak Solar Power, LLC, Case No. 3:22-cv-00009-MOC-DCK
(W.D.N.C., Jan. 7, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Daybreak Solar Power -- https://www.daybreaksolarpower.com/ --
create, develop, and produce solar products that convert light into
energy.[BN]
The Plaintiff is represented by:
Karl S. Gwaltney, Esq.
MAGINNIS LAW, PLLC
4801 Glenwood Avenue, Suite 310
Raleigh, NC 27612
Phone: (919) 960-1545
Fax: (919) 882-8763
Email: kgwaltney@maginnislaw.com
DENKA PERFORMANCE: Butler Suit Transferred to N.D. California
-------------------------------------------------------------
The case styled as Juanea L. Butler, individually and as
representative of all others similarly situated v. Denka
Performance Elastomer LLC; E.I DuPont De Nemours and Company;
Louisiana State, Through the Department of Health and Hospitals;
Louisiana State, Through the Department of Environmental Quality;
Louisiana State, Through the Department of Health; Incorrectly
named as Louisiana State, Through the Department of Health and
Hospitals; Case No. 2:18-cv-06685, was transferred from the U.S.
District Court for the Eastern District of Louisiana, to the U.S.
District Court for the Northern District of California on Jan. 7,
2022.
The District Court Clerk assigned Case No. 3:22-cv-00090-VC to the
proceeding.
The nature of suit is stated as Other P.I. for Personal Injury.
Denka Performance Elastomer LLC -- http://denka-pe.com/--
manufactures products and components from natural and synthetic
rubber, resins, silicone, foams, and polymers.[BN]
The Plaintiff is represented by:
Danny Dustin Russell, Esq.
RUSSELL LAW FIRM, LLC
733 E. Airport Ave, Suite 201
Baton Rouge, LA 70806
Phone: (225) 307-0088
Email: danny@dannyrusselllaw.com
The Defendants are represented by:
James Conner Percy, Esq.
JONES WALKER - BR
8555 United Plaza Blvd, Suite 500
Baton Rouge, LA 70809-7000
Phone: (225) 248-2000
Fax: (225) 248-2010
- and -
Brett S. Venn, Esq.
JONES WALKER (New Orleans)
201 St. Charles Ave., 50th Floor
New Orleans, LA 70170
Phone: (504) 582-8116
Email: bvenn@joneswalker.com
- and -
Justin J. Marocco, Esq.
Michael R. Rhea, Esq.
JONES WALKER (Baton Rouge)
Four United Plaza
8555 United Plaza Blvd., 5th Floor
Baton Rouge, LA 70809
Phone: (225) 248-2415
Email: jmarocco@joneswalker.com
mrhea@joneswalker.com
- and -
Michael A. Chernekoff, Esq.
JONES WALKER (Houston)
811 Main Street, Suite 2900
Houston, TX 77002
Phone: (713) 437-1827
Email: mchernekoff@joneswalker.com
- and -
Deborah DeRoche Kuchler, Esq.
ABBOTT SIMSES KNISTER & KUCHLER
400 Lafayette Street, Suite 200
New Orleans, LA 70130
Phone: (504) 568-9393
- and -
Bradley H. Weidenhammer, Esq.
Kaitlyn L. Coverstone, Esq.
Kevin T. Van Wart, Esq.
Rebecca C. Fitzpatrick, Esq.
Stanley M. Wash, Esq.
KIRKLAND & ELLIS, LLP (CHICAGO)
300 North LaSalle Street
Chicago, IL 60654
Phone: (312) 862-2000
Email: bradley.weidenhammer@kirkland.com
KevinVanWart@kirkland.com
rebecca.fitzpatrick@kirkland.com
stan.wash@kirkland.com
- and -
Joshua Doguet, Esq.
Sarah E. Iiams, Esq.
KUCHLER POLK WEINER, LLC (New Orleans)
1615 Poydras St., Suite 1300
New Orleans, LA 70112
Phone: (504) 592-0691 ext 195
Email: jdoguet@kuchlerpolk.com
siiams@kuchlerpolk.com
- and -
Lawrence Edward Marino, Esq.
Patrick B. McIntire, Esq.
OATS & MARINO (Lafayette)
100 E. Vermilion St., Suite 400
Lafayette, LA 70501
Phone: (337) 233-1100
Fax: (337) 233-1178
Email: lmarino@oatsmarino.com
pmcintire@oatsmarino.com
- and -
Timothy Wayne Hardy, Esq.
Christina Berthelot Peck, Esq.
Willard L. West, Esq.
ROEDEL, PARSONS, KOCH, BLACHE, BALHOFF & MCCOLLISTER
(B.R.)
8440 Jefferson Hwy., Suite 301
Baton Rouge, LA 70809
Phone: (225) 929-7033
Email: thardy@roedelparsons.com
cpeck@roedelparsons.com
cwest@roedelparsons.com
DHI MORTGAGE: Ninth Circuit Flips Dismissal of Ahlstram Class Suit
------------------------------------------------------------------
In the case, ROBERT W. AHLSTROM, Plaintiff-Appellant v. DHI
MORTGAGE COMPANY, LTD., L.P., Defendant-Appellee, Case No. 20-15114
(9th Cir.), the U.S. Court of Appeals for the Ninth Circuit
reversed the district court's order dismissing Ahlstrom's putative
class action complaint.
The appealed order also granted DHI Mortgage's ("DHIM") motion to
compel arbitration pursuant to the Federal Arbitration Act ("FAA"),
9 U.S.C. Section 1, et seq.
Background
DHIM employed Ahlstrom as a loan officer from July 20, 2015 to Dec.
9, 2016. On July 24, 2015, Ahlstrom signed a Mutual Arbitration
Agreement ("MAA") as part of the new-hire onboarding process. The
MAA provides, in relevant part, that "the undersigned employee
('Employee') and D.R. Horton, Inc., (the 'Company') voluntarily and
knowingly enter into this Mutual Arbitration Agreement." Nonparty
D.R. Horton, Inc. is the parent company of Appellee DHIM. Although
neither Ahlstrom nor DHIM contends that Ahlstrom was ever an
employee of D.R. Horton, DHIM has maintained throughout this action
that Ahlstrom entered into the MAA with D.R. Horton.
The MAA goes on to provide that the signatories agree that "all
legal disputes and claims between them, including without
limitation those relating to Employee's employment with the Company
or any separation therefrom and claims by Employee against the
Company's parents, subsidiaries, affiliates, directors, employees,
or agents, will be determined exclusively by final and binding
arbitration." The MAA also contains a delegation clause providing
that the arbitrator "shall have exclusive authority to resolve any
dispute relating to the formation, enforceability, applicability,
or interpretation of this MAA."
On Aug. 2, 2017, Ahlstrom filed a putative class action (the "first
action") in the Northern District of California alleging various
employment-related claims against D.R. Horton and DHI Mortgage
Company GP. Although the parties now agree that DHIM was Ahlstrom's
only employer, at the time of the first action, Ahlstrom appears to
have been unaware that DHIM was his employer and did not name DHIM
as a defendant. The Defendants in the first action moved to compel
arbitration pursuant to the same MAA that is the subject of the
appeal, maintaining, as DHIM does in the case, that Ahlstrom
entered into the MAA with D.R. Horton.
Mr. Ahlstrom contends that the arbitration agreement upon which
DHIM relies was not properly formed.
On Nov. 30, 2018, the district court granted the motion, ordered
Ahlstrom's individual claims to arbitration, and dismissed
Ahlstrom's putative class action claims pending the resolution of
the arbitration. Ahlstrom did not appeal.
On March 27, 2019, Ahlstrom filed a putative state court class
action in Alameda County Superior Court, naming DHIM as the
defendant-employer. Ahlstrom alleged employment-related causes of
action identical to those brought in the first action against D.R.
Horton. DHIM timely removed the action to the Northern District of
California. On July 22, 2019, relying on the MAA, DHIM moved to
compel arbitration and to dismiss the putative class claims.
Ahlstrom opposed the motion, contending that the MAA was never
properly formed due to a failure to satisfy a condition precedent
in the MAA.
On Jan. 16, 2020, the district court granted DHIM's motion. Citing
the MAA's delegation clause, the district court concluded that
formation issues, including Ahlstrom's condition precedent
argument, could not be decided by the court, and were instead
delegated to the arbitrator. Ahlstrom timely appealed the district
court's order compelling arbitration.
Discussion
I. Delegability of Contract Formation Issues
DHIM argues that, like issues of validity and arbitrability,
parties may also agree to delegate issues of formation to an
arbitrator.
The Ninth Circuit does not agree. As the Supreme Court has
recognized, a court should order arbitration only if it is
convinced an agreement has been formed.
The Ninth Circuit is not inclined to disrupt this well-settled
principle. It opines that although DHIM argues that "the court does
not have the authority to decide" whether an agreement to arbitrate
exists "where the parties have 'clearly and unmistakably' delegated
the arbitrability issues to the arbitrator," the Fifth and Tenth
Circuits have rejected that very argument.
The Ninth Circuit agrees with its sister circuits and holds that
parties cannot delegate issues of formation to the arbitrator.
Where Ahlstrom challenged the very existence of an agreement to
arbitrate, the district court was required to address Ahlstrom's
challenge and determine whether an agreement existed. If no
agreement to arbitrate was formed, then there is no basis upon
which to compel arbitration.
II. Formation of the MAA
The Ninth Circuit next addresses whether the MAA constitutes a
properly formed agreement between Ahlstrom and D.R. Horton. On its
face, it finds that the MAA is plainly drafted to govern an
employer-employee relationship. None of the provisions has any
relevance to any relationship between Ahlstrom and D.R. Horton.
Nowhere in the MAA is there any specific reference to Ahlstrom's
actual employer, DHIM.
Notwithstanding this fundamental omission, DHIM has not argued at
any time during the action, either to the district court or to the
Ninth Circuit, that the MAA's definition of D.R. Horton as the
employer was a mistake or scrivener's error, or that it otherwise
should have referenced DHIM. Instead, DHIM argues that Ahlstrom
"entered into a binding arbitration agreement with D.R. Horton."
To the extent DHIM suggests that the definition of D.R. Horton as
the employer also encompasses D.R. Horton's subsidiaries, such as
DHIM, the Ninth Circuit holds that DHIM is mistaken. Courts adhere
to the fundamental principle that corporations, including parent
companies and their subsidiaries, are treated as distinct entities.
As such, the parent-subsidiary relationship between D.R. Horton and
DHIM is insufficient to establish that the MAA in any way
identifies the latter as the employer. The parties have not argued,
nor is there evidence to suggest, that DHIM and D.R. Horton share
the same rights, liabilities, or employees. Nor is there any other
factual basis to disregard the entities' separate corporate forms.
Put simply, the MAA, as drafted, describes and governs a
relationship between Ahlstrom and D.R. Horton that does not exist,
and thus does not constitute a properly formed agreement to
arbitrate.
Conclusion
For the foregoing reasons, the Ninth Circuit reversed the district
court's order granting DHIM's motion to compel arbitration and
remanded to the district court for further proceedings consistent
with its Opinion.
A full-text copy of the Court's Dec. 29, 2021 Opinion is available
at https://tinyurl.com/795a4f5c from Leagle.com.
Shaun Setareh -- shaun@setarehlaw.com -- (argued) and Thomas Segal
-- Thomas@setarehlaw.com -- Setareh Law Group, in Beverly Hills,
California, for the Plaintiff-Appellant.
Jennifer L. Katz -- jennifer.katz@ogletree.com -- (argued) and Jack
S. Sholkoff -- jack.sholkoff@ogletree.com -- Ogletree, Deakins,
Nash, Smoak & Stewart, P.C., in Los Angeles, California, for the
Defendant-Appellee.
DIRECT ENERGY: Court Grants Summary Judgment Bid in Forte Suit
--------------------------------------------------------------
In the case, MARTIN FORTE, Plaintiff, and THOMAS AURELIA; JERRY
BAGLIONE; and RICHARD SCHAFER, Intervenor-Plaintiffs v. DIRECT
ENERGY SERVICES, LLC, a Delaware Limited Liability Company,
Defendant, Case No. 6:17-CV-264 (FJS/ATB) (N.D.N.Y.), Judge
Federick J. Scullin, Jr., of the U.S. District Court for the
Northern District of New York granted the Defendant's motion for
summary judgment.
Background
Following New York's 1996 deregulation of its energy market,
private energy services companies ("ESCOs"), like the Defendant,
began providing energy to consumers at rates calculated based on
usage per kilowatt-hour ("kWh"). Plaintiff Forte alleged that,
after 12 months at a fixed electricity rate, the Defendant
automatically renewed his contract and changed his rate to a
variable rate plan; and, ultimately, the Defendant's electricity
charges were higher than what a traditional utility, like National
Grid, would have charged the Plaintiff. He claimed that he was
unaware that his rate would change from fixed to variable and that
Defendant's Welcome Letter, Terms and Conditions, and Customer
Disclosure Statements were not clear and conspicuous about that
change.
The Plaintiff thus commenced the action, seeking to represent a
putative class, in March 2017, alleging causes of action for unjust
enrichment and for violating Section 349-d(7) of New York's General
Business Law ("GBL"), which requires ESCOs to clearly and
conspicuously disclose all variable charges.
The Defendant moved to dismiss the Plaintiff's first amended
complaint; and, in August 2017, the Court issued a
Memorandum-Decision and Order dismissing the Plaintiff's cause of
action for unjust enrichment but maintaining his cause of action
pursuant to GBL Section 349-d(7).
The Plaintiff eventually moved to certify a class in September
2019; however, following that motion, the parties disputed whether
the Plaintiff was an adequate representative of the class and
whether additional plaintiffs would be permitted to intervene as
representatives.
Intervenor-Plaintiffs Thomas Aurelia, Richard Schafer, and Jerry
Baglione ultimately filed their intervenor class action complaint
in the action in January 2020, alleging that the Defendant violated
GBL Section 349-d(7). In response, the Defendant answered and moved
for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c) against Intervenor-Plaintiffs Schafer and Baglione.
All three Intervenor-Plaintiffs then joined Plaintiff Forte
(collectively referred to as "Plaintiffs") in a new motion for
class certification.
The Defendant then moved for summary judgment against all the
Plaintiffs, seeking to dismiss their complaints. All of these
motions are pending before the Court.
Discussion
A. Defendant's Motion for Summary Judgment
The Plaintiffs allege that their agreements with the Defendant
violated GBL Section 349-d(7), which provides that, "in every
contract for energy services and in all marketing materials
provided to prospective purchasers of such contracts, all variable
charges will be clearly and conspicuously identified."
The parties dispute whether a factfinder could reasonably conclude
that the Defendant's disclosures were sufficiently "clear and
conspicuous" to meet the statute's requirements. They appear to
agree that the New York Public Service Commission (the "PSC") --
the regulatory body that oversees New York's energy market --
reviewed the Defendant's agreements and approved them, finding that
they complied with all applicable regulations and laws, including
the requirement that all variable charges be clearly and
conspicuously disclosed. Nonetheless, they dispute whether a court
can consider a disclosure's clarity after the PSC has approved and
certified it.
To determine whether the agreements were clear and conspicuous,
Judge Scullin must consider whether GBL Section 349 governs the
Welcome Letter, Terms, and Disclosure Statement and which of those
documents, if any, he should consider together as part of one
agreement. He addresses each of these issues and then turns to the
question of whether the Defendant has met its burden of showing an
absence of material fact and entitlement to judgment as a matter of
law.
1. Whether the Court will "Override" the PSC's Approval in
Determining if the Defendant's Agreements Complied with GBL Section
349-d(7)
The Defendant argues that the Plaintiff is inviting the Court to
"override" New York's regulatory system because the PSC has already
approved and certified that its contracts comply with Section
349-d(7). It primarily relies on the Second Circuit's conclusions
in Richards v. Direct Energy Servs., LLC, 915 F.3d 88 (2d Cir.
2019), to support its argument.
However, Judge Scullin finds that Richards is distinguishable and
that the GBL affords the Plaintiffs a private right of action. He
says, contrary to the Defendant's assertion, the Second Circuit in
Richards did not conclude that it could not consider whether an
ESCO's contract complied with the state's regulations. It merely
stated that, requiring the company to disclose more information
than was specified in the regulations would constitute judicial
overreach. Furthermore, as the Plaintiffs argue, the GBL expressly
permits an individual to commence an action in the courts if they
feel that an ESCO's violation injured them. Therefore, Judge Sculin
finds that he may consider whether the Defendant's contracts
violated GBL Section 349-d(7)'s requirement that "all variable
charges will by clearly and conspicuously identified."
2. Documents Governed by GBL Section 349-d(7)
In its memorandum supporting its motion for summary judgment, the
Defendant argues that the Welcome Letter is not subject to the
GBL's requirements because it is neither a contract nor a marketing
material, as it was sent to the Plaintiffs after they had already
agreed to purchase the products and it was not a contract between
them. The Defendant further argues that the Court should consider
the Terms and the Disclosure Statement together as constituting one
contract. In response, the Plaintiffs point out that the Court
already determined in its August 2017 Order that Defendant's
written materials must comply with the GBL.
With respect to the Welcome Letter, Judge Scullin finds that it is
neither a contract nor a marketing material. The Welcome Letter is
exactly what it says -- a letter welcoming new customers to the
program and thanking them for using the Defendant's services.
Regarding the Terms and Disclosure Statement, the Disclosure
Statement does not include any information about the agreements
that are contrary to those found in Section 1 of the Terms.
Thus, because Judge Scullin can determine beyond a reasonable doubt
that the Terms incorporate the Disclosure Statement by reference,
he finds that those two documents constitute the Defendant's
"Agreement" with each Plaintiff. Therefore, the issue before the
Court is whether the Agreements -- constituting the Terms and
Disclosure Statement -- are so clear and conspicuous that they
satisfy GBL Section 349-d(7).
3. Satisfaction of GBL Section 349-d(7)
To support its argument that the Agreements clearly and
conspicuously disclosed the information about the variable rates,
the Defendant points to the Plaintiffs' deposition testimonies. The
Plaintiffs' testimonies, which are not contradicted anywhere in the
evidence, reveal that they did not read their contracts with the
Defendant; and, once they had read those contracts, they understood
that, after their fixed rate term ended, they would be billed at a
variable rate.
Thus, based on the foregoing testimony, Judge Scullin holds that
the Defendant has shown that the language in its Agreements was
clear and conspicuous and not in violation of GBL Section 349-d(7).
He finds that there is no genuine issue of material fact as to
whether the language in the Plaintiffs' Agreements with the
Defendant was clear and conspicuous or if the Agreements violated
GBL Section 349-d(7). Accordingly, Judge Scullin grants the
Defendant's motion for summary judgment and dismisses both the
Plaintiff's and the Intervenor-Plaintiffs' complaints against it.
B. The Remaining Motions Pending Before the Court
Since the Court has granted Defendant's motion to dismiss the
Plaintiffs' complaints against it, the Plaintiffs' motions for
class certification are moot. Judge Scullin also finds that the
Defendant's motion for judgment on the pleadings against
Intervenor-Plaintiffs Schafer and Baglione is also moot because
they responded to the Defendant's motion for summary judgment,
which addressed all of the issues raised in the motion for judgment
on the pleadings.
Conclusion
After carefully considering the entire file in the matter, the
parties' submissions, and the applicable law, and for the
above-stated reasons, Judge Scullin granted the Defendant's motion
for summary judgment. He denied as moot the Defendant's motion for
judgment on the pleadings and the Plaintiffs' motions for class
certification. The Clerk of the Court will enter judgment in favor
of the Defendant and close the case.
A full-text copy of the Court's Dec. 29, 2021 Memorandum-Decision &
Order is available at https://tinyurl.com/2exdybfm from
Leagle.com.
APPEARANCES1 ADAM C. YORK, ESQ. -- ayork@kamberlaw.com -- MICHAEL
J. ASCHENBRENER, ESQ. -- masch@kamberlaw.com -- SCOTT A. KAMBER,
ESQ. -- skamber@kamberlaw.com -- KAMBERLAW, LLC, in Chicago,
Illinois, and Denver, Colorado, Attorneys for the Plaintiff and
Intervenor-Plaintiffs.
DAVID LLOYD STEELMAN, ESQ. -- dsteelman@steelmanandgaunt.com --
STEELMAN, GAUNT & HORSEFIELD, in Rolla, Missouri, Attorneys for the
Plaintiff and Intervenor-Plaintiffs.
DIANE S. WIZIG, ESQ. -- diane.wizig@mhllp.com -- MICHAEL D.
MATTHEWS, JR., ESQ. -- matt.matthews@mhllp.com -- JAMES MONROE
CHAMBERS, ESQ., McDOWELL HETHERINGTON LLP, in Houston, Texas, and
Arlington, Texas, Attorneys for the Defendant.
STEVEN M. LUCKS, ESQ. -- slucks@fishkinlucks.com -- FISHKIN LUCKS
LLP, in Newark, New Jersey, Attorneys for the Defendant.
DUNCANVILLE N LLC: Carson Files TCPA Suit in N.D. Texas
-------------------------------------------------------
A class action lawsuit has been filed against Duncanville N, LLC.
The case is styled as Angel Carson, Jean Freeman, individually and
on behalf of all others similarly situated v. Duncanville N, LLC
doing business as: Clay Cooley Nissan, Case No. 3:22-cv-00028-L
(N.D. Tex., Jan. 6, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Duncanville N, LLC doing business as Clay Cooley Nissan Duncanville
-- https://www.claycooleynissan.com/ -- serves the Dallas area for
both new and used car sales and service.[BN]
The Plaintiff is represented by:
Andrew J. Shamis, Esq.
SHAMIS & GENTILE P.A.
14 N.E. 1st Ave, Ste. 1205
Miami, FL 33132
Phone: (305) 479-2299
Fax: (786) 623-0915
Email: ashamis@sflinjuryattorneys.com
EMMY'S ORGANICS: Contreras Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Emmy's Organics, LLC.
The case is styled as Yensy Contreras, individually and on behalf
of all others similarly situated v. Emmy's Organics, LLC, Case No.
1:22-cv-00136 (S.D.N.Y., Jan. 6, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Emmy's Organics -- https://emmysorganics.com/ -- is a gluten-free,
vegan and organic snack company that creates organic coconut
cookies made with the highest quality ingredients.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
EXPERT STAFFING: Denial of Arbitration Bids in Garcia Suit Upheld
-----------------------------------------------------------------
In the case, ROSEANA GARCIA, Plaintiff and Respondent v. EXPERT
STAFFING WEST, et al., Defendants and Appellants, 2d Civ. No.
B307371 (Cal. App.), the Court of Appeals of California for the
Second District, Division Six, issued an order affirming the trial
court's orders denying the Appellants' motion to compel the
Plaintiff to arbitrate her individual claims and denying their
motions to dismiss her class claims and stay the action.
Introduction
Respondent Garcia had an employment agreement with her former
employers, Appellants Essential Seasons and Cool-Pak, LLC. The
agreement did not include an arbitration clause. After that
employment ended, Garcia applied for work with appellant Expert
Staffing West. As a part of her application for employment with
Expert Staffing West, Garcia agreed to submit all disputes between
them to arbitration. Her application was rejected.
Ms. Garcia later joined an existing class action for wage and hour
violations against all three appellants. She based her claims on
her prior employment by Essential Seasons and Cool-Pak. The issue
presented is whether the arbitration agreement between Garcia and
Expert Staffing West applies to disputes arising between Garcia and
her former employers. The Court of Appeals concludes that the
arbitration clause between a job applicant and her prospective
employer does not apply to disputes between the applicant and her
former employers based on the existence of a business relationship
between the prospective employer and the applicant's past
employers.
Expert Staffing West and its CEO Edward Bright, Essential Seasons
and its owner/managing partner Kathleen Winters, and Cool-Pak, LLC
(collectively "Appellants") appeal from the trial court's orders
denying their motion to compel Garcia to arbitrate her individual
claims and denying their motions to dismiss her class claims and
stay the action. Essential Seasons and Cool-Pak contend the trial
court erred when it determined that the arbitration agreement
between Garcia and Expert Staffing West did not apply to Garcia's
claims against them.
Background
Essential Seasons provided contract-based labor services for
agricultural and foodservice companies. Cool-Pak, LLC is a company
that labels, packs, and ships produce.
In 2017, Essential Seasons hired Garcia and placed her at Cool-Pak
as a packer. During the time Garcia was an Essential Seasons
employee, Expert Staffing West provided payroll services to
Essential Seasons. Garcia's employment with Essential Seasons and
Cool-Pak ended in December 2017.
In 2019, Garcia applied for employment at Expert Staffing West.
Garcia completed and signed an arbitration agreement as part of the
application package. She did not obtain employment with Expert
Staffing West after completing this application.
In 2018, several former employees sued the Appellants and others,
alleging various individual and class action wage and hour claims.
In November 2019, the Plaintiffs in that lawsuit filed a Third
Amended Complaint, which added Garcia as a plaintiff. Garcia's
allegations stemmed from her work at Essential Seasons/Cool-Pak in
2017. Based on Garcia's claims, Cool-Pak filed a cross-complaint
against Expert Staffing West and Essential Seasons.
Expert Staffing West filed a petition to compel arbitration of
Garcia's individual claims, a motion to dismiss Garcia's class
claims, and a motion to stay the action pending arbitration, based
on the job application with Expert Staffing West, executed after
Garcia's employment with Essential Seasons/Cool-Pak had ended.
Essential Seasons and Cool-Pak filed joinders to the petition to
arbitrate.
The trial court denied the petition. The court found that Garcia
"had not been employed by (or through) Expert Staffing West for
over a year when she signed the agreement at issue in the case.
Moreover, she did not obtain a job as a consequence of her
application for employment of which the arbitration agreement was a
part." In interpreting the contract to give effect to the parties'
mutual intent at the time of contracting, the court noted that the
"agreement which Ms. Garcia signed does not even mention Cool-Pak."
The court found that under the circumstances, Garcia had not
"agreed to arbitrate her claims against Cool-Pak, even conceding
the principle of retroactivity as established by Salgado." It also
denied the motions to dismiss and stay the action.
Discussion
First, the Appellants contend the trial court erred when it
determined the arbitration agreement did not apply to Garcia's
individual wage and hour claims. They argue this result is
compelled by the Court of Appeals' decision in Salgado, supra, 33
Cal.App.5th 356.
The Court of Appeals disagrees. It concludes that the arbitration
agreement signed in 2019 "is not susceptible of an interpretation
that covers" Garcia's prior employment by a different employer. The
first sentence at the top of the agreement states the agreement is
part of the "onboarding package." The word "onboarding" reflects
that the parties intended the agreement to apply to new employees
of Expert Staffing West. The agreement states that the parties
agreed to arbitrate "any dispute between Employee and the Company
relating to or arising out of the employment or the termination of
Employee," and "the Company" is defined as "Expert Staffing West
and all related entities, including where employees are sent to
work."
The Court of Appeals concludes that the arbitration clause between
a job applicant and her prospective employer does not apply to
disputes between the applicant and her former employers merely
because her former employers had a business relationship with her
prospective employer.
Second, the Appellants argue the case is governed by Salgado v.
Carrows Restaurant, Inc., 33 Cal.App.5th 356, and that the broad
language of the arbitration agreement retroactively applies to
Garcia's claims against prior employers because of the business
relationship between the past and prospective employers.
Again, the Court of Appeals disagrees. Salgado does not apply. In
Salgado, Salgado sued Carrows Restaurant for employment
discrimination and civil rights violations. Unlike Salgado, who was
a Carrows employee when she signed the arbitration agreement,
Garcia was a job applicant and had never been employed by Expert
Staffing West when she signed the arbitration agreement. And
Garcia's claims arose when she was employed by a different company
(i.e., Essential Seasons/Cool-Pak) before she applied for a job
with Expert Staffing West. No evidence supports a finding that the
parties intended to benefit Garcia's former employers, or that
those former employers are prejudiced by not being able to enforce
an arbitration agreement they never bargained for or executed.
Third, the Appellants argue that Essential Seasons and Cool-Pak can
enforce the arbitration agreement because they are non-signatories
or third-party beneficiaries to the arbitration agreement.
The Court of Appeals again disagrees. It finds that nothing in the
record supports a finding that Essential Seasons and Cool-Pak were
third-party beneficiaries to the arbitration agreement. Most
significantly, Garcia never obtained a job through her application
with Expert Staffing West. There is no basis for an estoppel here.
Finally, the Appellants contend they can enforce the arbitration
agreement because Garcia alleged in her complaint that Appellants
were all agents/alter-egos of one another. A similar argument was
rejected in Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th
446, 451 (Barsegian). There, the Kessler defendants argued that
because the complaint alleged that the defendants are agents of
each other, all defendants were entitled to enforce each other's
arbitration agreement. In rejecting this argument, the Court of
Appeal observed that complaints in actions against multiple
defendants often include allegations that the defendants were each
other's agents because such allegations may ultimately prove to be
necessary.
The Court of Appeals agrees with Barsegian and concludes that the
allegations regarding agency in the complaint did not allow
Appellants to compel arbitration of Garcia's claims. As in
Barsegian, there has been no judicial admission here.
Because the arbitration agreement does not apply to Garcia's
claims, the Court of Appeals concludes that the trial court
properly dismissed the motions to dismiss the class action claims
and to stay the action.
Disposition
The judgment is affirmed. Garcia will recover costs on appeal.
A full-text copy of the Court's Dec. 29, 2021 Order is available at
https://tinyurl.com/a7577kew from Leagle.com.
Epstein Becker & Green, Michael S. Kun -- mkun@ebglaw.com -- and
Kevin D. Sullivan -- ksullivan@ebglaw.com -- for Defendants and
Appellants Expert Staffing West and Edward Bright.
Law Offices of Mary E. Lynch and Mary E. Lynch for Defendants and
Appellants Essential Seasons, LLC and Kathleen Winters.
Ogletree, Deakins, Nash, Smoak & Stewart, Evan R. Moses --
evan.moses@ogletree.com -- and Marlene M. Moffitt --
marlene.moffitt@ogletree.com -- for Defendant and Appellant
Cool-Pak, LLC.
Marlin & Saltzman, Stanley D. Saltzman, Karen I. Gold --
kgold@marlinsaltzman.com; Weilbacher & Weilbacher, Brian R.
Weilbacher, Lisa D. Walker -- lisa@weilbacherlaw.com; Law Office of
William P. Haney and William P. Haney for Plaintiff and
Respondent.
FERRARI SPA: Faces Class Action Lawsuit Over Brake Fluid Leaks
--------------------------------------------------------------
David A. Wood, writing for CarComplaints.com, reports that a
Ferrari brake failure lawsuit alleges brake fluid leaks cause
complete brake failure in these models.
-- 2010-2015 Ferrari 458 Italia
-- 2014-2015 Ferrari 458 Speciale
-- 2015 Ferrari 458 Speciale A
-- 2012-2015 Ferrari 458 Spider
-- 2016-2019 Ferrari 488 GTB
-- 2016-2019 Ferrari 488 Spider
The Ferrari brake failure class action lawsuit was filed a few
months after Ferrari recalled 10,000 cars that may suffer from
brake fluid leaks. In October 2021, the automaker said it was
working with Bosch to determine if there were problems with the
brake boosters or brake pump assemblies.
Low brake fluid levels caused drivers to receive "Brake fluid level
low, Go to dealer slowly" messages in Ferrari 458 and 488 cars.
Ferrari Brake Failure Allegedly Put Car in a Pond
The brake failure lawsuit was filed by Missouri plaintiff Jeffrey
Rose who purchased a used 2018 Ferrari 488 GTB in June 2020 from an
Illinois Ferrari dealership.
In June 2021, his Ferrari displayed a message that said "Brake
fluid low -- Drive to dealer slowly," so he drove home and pulled
into his driveway in first gear.
The plaintiff says he pressed the brake pedal but the car continued
into his yard. He says he released his seat belt and jumped out of
the Ferrari before it plunged into a 20-foot pond behind his house.
The Ferrari 488 GTB was taken to a salvage company and he settled
with State Farm as the car was deemed a total loss.
The plaintiff says he purchased a replacement 2018 Ferrari 488 GTB
from a Georgia dealership but in July 2021 the brakes failed on the
replacement car.
The brake failure lawsuit says the plaintiff again saw a "Brake
fluid low - Drive to dealer slowly" message and the brake pedal
went to the floor. The car was towed to a dealer where it was
repaired.
According to the Ferrari brake failure class action, the plaintiff
filed a complaint (#11433534) with the National Highway Traffic
Safety Administration on September 18, 2021.
Then in November he received two letters from Ferrari related to
possible brake fluid leaks and messages on the dashboards that
said, "Brake fluid level low, Go to dealer slowly."
The Ferrari brake failure recall announced in October 2021 said the
automaker planned on sending owners recall notices on December 21,
2021.
Ferrari said in the recall:
"When the quantity of brake fluid in the relevant reservoir
decreases by 52% of the maximum reservoir level (so that a
percentage equal to 48% is still in such reservoir) a message will
appear on the vehicle's dashboard that reads as follows: 'Brake
fluid level low, Go to dealer slowly.' Additionally, a warning
light will also appear on the dashboard and an acoustic buzzer will
sound."
The plaintiff says he doesn't know the cause of the brake problem,
but "as a preliminary matter may be related to leaking brake fluid
and/or the master cylinder/brake booster component within the Class
Vehicles."
The plaintiff also claims Ferrari should have told him the brakes
were defective because he wouldn't have paid as much as he did for
the cars, or might not have purchased them in the first place.
The Ferrari brake failure lawsuit was filed in the U.S. District
Court for the District of New Jersey, Newark Division: Jeffrey
Rose, vs. Ferrari North America, Inc., et al.
The plaintiff is represented by Carella, Byrne, Cecchi, Olstein,
Brody & Agnello, P.C., Cuneo Gilbert & LaDuca, LLP, and Burger Law
LLC. [GN]
FIORINI LANDSCAPE: Hernandez Sues Over Failure to Pay Proper OT
---------------------------------------------------------------
JOSE HERNANDEZ, on behalf of himself and all other persons
similarly situated, Plaintiff v. FIORINI LANDSCAPE, INC., FIOLAND
CORP., and JOSEPH FIORINI, Defendants, Case No. 2:21-cv-07158
(E.D.N.Y., December 29, 2021) is a collective action complaint
brought against the Defendants for their alleged violations of the
Fair Labor Standards Act and New York Labor Law.
The Plaintiff was employed by the Defendants as a laborer from in
or about July 19, 2021 through November 30, 2021.
According to the complaint, the Plaintiff regularly worked more
than 40 hours per week throughout his employment with the
Defendants. However, the Defendants did not properly pay him
overtime compensation at the rate of one and one-half times his
regular rate of pay for all hours worked in excess of 40 per
workweek. Instead, the Plaintiff received payment for some hours he
worked over 40, and nothing at all for many others. The Defendants
also failed to maintain accurate records of the hours worked by and
wages paid to the Plaintiff, failed to provide him with a notice
and acknowledgement of his wage rate in his primary language upon
his hire, and failed to provide him with accurate wage statements.
Moreover, the Defendants failed to post required notices regarding
payment of minimum wages and overtime compensation, says the suit.
The Corporate Defendants are engaged as a single enterprise in the
landscaping business, operating throughout Suffolk and Nassau
counties. Joseph Fiorini is and/or was an officer and/or owner of
the Corporate Defendants, had authority to make payroll and
personnel decisions for the Corporate Defendants, and was active in
the day-to-day management of the Corporate Defendants. [BN]
The Plaintiff is represented by:
Matthew J. Farnworth, Esq.
Peter A. Romero, Esq.
LAW OFFICE OF PETER A. ROMERO, P.L.L.C.
490 Wheeler Road, Suite 250
Hauppauge, NY 11788
Tel: (631) 257-5588
E-mail: promero@romerolawny.com
FOODS ALIVE: Contreras Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Foods Alive Inc. The
case is styled as Yensy Contreras, individually and on behalf of
all others similarly situated v. Foods Alive Inc., Case No.
1:22-cv-00137 (S.D.N.Y., Jan. 6, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Foods Alive -- https://foodsalive.com/ -- is a family owned company
dedicated to creating the healthiest foods.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
FRAME USA: Contreras Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Frames USA Inc. The
case is styled as Yensy Contreras, individually and on behalf of
all others similarly situated v. Frames USA Inc., Case No.
1:22-cv-00128 (S.D.N.Y., Jan. 6, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Frame USA, Inc. -- https://www.frameusa.com/ -- is your one-stop
secure online shopping place for a wide variety of Ready-Made
Picture Frames.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
GARRYMORE RESTAURANT: Crehan Sues Over Unpaid Minimum & OT Wages
----------------------------------------------------------------
PETER CREHAN, on behalf of himself and similarly situated
individuals, Plaintiff v. GARRYMORE RESTAURANT INC. d/b/a NILES and
CORNELIUS O'REILLY, Defendants, Case No. 1:21-cv-11013 (S.D.N.Y.,
December 22, 2021) brings this complaint against the Defendants for
their alleged violations of the Fair Labor Standards Act and New
York Labor Law.
The Plaintiff has worked for the Defendants as a bartender from
1988 until March 13, 2020.
The Plaintiff claims that although he regularly worked 44 to 50
hours a week, the Defendant did not pay him at the minimum wage
rate and 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 worked in excess of 40 per workweek. Moreover, the Defendants
have willfully failed to provide him and other similarly situated
employees with a wage notice and with accurate wage statements.
The Plaintiff seeks all unpaid wages at the minimum wage rate and
unpaid overtime wages for all hours worked over 40 in a workweek,
as well as liquidated damages and statutory penalties, pre- and
post-judgment interest, litigation costs and expenses together with
reasonable attorneys' fees, and other relief as the Court
determines to be just and proper.
Garrymore Restaurant Inc. d/b/a Niles operates as a restaurant
owned by Cornelius O'Reilly. [BN]
The Plaintiff is represented by:
James F. Sullivan, Esq.
LAW OFFICES OF JAMES F. SULLIVAN, P.C.
52 Duane St., 7th Floor
New York, NY 10007
Tel: (212) 374-0009
Fax: (212) 374-9931
E-mail: jsullivan@jfslaw.net
HUNTINGTON POWER: Fails to Timely Pay Wages, Laroche Suit Claims
----------------------------------------------------------------
The case, MATTHEW LAROCHE, on behalf of himself and all other
persons similarly situated, Plaintiff v. HUNTINGTON POWER
EQUIPMENT, INC., Defendant, Case No. 2:21-cv-07156 (E.D.N.Y.,
December 29, 2021) is brought against the Defendant as a result of
its alleged failure to timely pay its hourly-paid field service
technicians in violation of New York Labor Law.
The Plaintiff has worked for the Defendant as an hourly-paid field
service technician in the State of New York from in or about
September 2019 to December 2021.
The Plaintiff alleges that the Defendant failed to pay him and
other similarly situated hourly-paid field service technicians "on
a weekly basis and not later than seven calendar days after the end
of the week in which wages are earned" as required by NYLL.
Instead, the Defendant paid them on a bi-weekly basis pursuant to a
company-wide payroll policy in violation of NYLL. In addition, the
Defendant failed to provide them with notice of their wage rate and
the basis of pay upon their hire, says the Plaintiff.
The Plaintiff brings this complaint as a class action seeking
damages against the Defendant for himself and all other similarly
situated hourly-paid field service technicians, as well as
reasonable attorneys' fees and the costs incurred in prosecuting
these claims, pre- and post-judgment interest as permitted by law,
and other relief as the Court deems just and proper.
Huntington Power Equipment, Inc. is a distributor of generators and
provides installation, maintenance and repair of generators for
residential and commercial customers throughout the New York
metropolitan area. [BN]
The Plaintiff is represented by:
Peter A. Romero, Esq.
LAW OFFICE OF PETER A. ROMERO, P.L.L.C.
490 Wheeler Road, Suite 250
Hauppauge, NY 11788
Tel: (631) 257-5588
E-mail: promero@romerolawny.com
IMPERIAL HEALTH: Chapman Sues Over Unsolicited Telemarketing Calls
------------------------------------------------------------------
CRYSTAL CHAPMAN, individually and on behalf of all those similarly
situated, Plaintiff v. IMPERIAL HEALTH GROUP LIMITED LIABILITY
COMPANY, Defendant, Case No. CACE-21-022362 (Fla. 17th Jud. Cir.
Ct., December 22, 2021) is a class action complaint brought against
the Defendant for its alleged violations of the Florida Telephone
Solicitation Act and the Telephone Consumer Protection Act.
According to the complaint, the Defendant sent telemarketing calls
to the Plaintiff's phone number 585-414-XXXX that was registered on
the National Do Not Call Registry for more than 31 days prior to
the receipt of the calls. Accordingly, the purpose of the
Defendant's calls was to promote its insurance services. The
Plaintiff was not seeking for insurance services, nor has he
provided the Defendant with prior express written consent to
receive its telemarketing calls. The Plaintiff also believes that
the Defendant's calls were made with autodialing equipment because
there was a definite pause prior to each answered call and the
calls were generic in nature.
On behalf of herself and of all those similarly situated
individuals, the Plaintiff seeks an injunctive relief requiring the
Defendant to cease from making such unsolicited telemarketing
calls. The Plaintiff also seeks statutory damages, pre-judgment
interest, reasonable attorneys' fees and all other forms of
equitable monetary relief as the Court deems necessary.
Imperial Health Group Limited Liability Company offers insurance
services. [BN]
The Plaintiff is represented by:
Avi R. Kaufman, Esq.
KAUFMAN P.A.
400 Northwest 26th St.
Miami, FL 33127
Tel: (305) 469-5881
E-mail: kaufman@kaufmanpa.com
JAINDL FARMS: Mahoney Files ADA Suit in E.D. Pennsylvania
---------------------------------------------------------
A class action lawsuit has been filed against Jaindl Farms, LLC.
The case is styled as John Mahoney, on behalf of himself and all
others similarly situated v. Jaindl Farms, LLC, Case No.
5:22-cv-00041 (E.D. Pa., Jan. 6, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Jaindl Farms -- https://jaindl.com/ -- is a fully integrated turkey
farm: breeding, hatching, growing, processing and marketing their
turkeys.[BN]
The Plaintiff is represented by:
David S. Glanzberg, Esq.
GLANZBERG TOBIA & ASSOCIATES PC
123 S. BROAD STREET SUITE 1640
PHILADELPHIA, PA 19109
Phone: (215) 981-5400
Email: dglanzberg@aol.com
JP MORGAN: Simoni Files Suit in S.D. New York
---------------------------------------------
A class action lawsuit has been filed against JP Morgan Chase Bank
N.A., et al. The case is styled as Stephen Simoni, Individually and
on behalf of all others similarly situated v. JP Morgan Chase Bank
N.A., JPMorgan Chase & Co., United Airlines, Inc., United Airlines
Holdings, Inc., Does 1 through 10, Inclusive, Case No.
1:22-cv-00176-AJN (S.D.N.Y., Jan. 7, 2022).
The nature of suit is stated as Other Fraud.
JPMorgan Chase Bank, N.A. -- http://www.jpmorganchase.com/-- doing
business as Chase Bank or often as Chase, is an American national
bank headquartered in Manhattan, New York City, that constitutes
the consumer and commercial banking subsidiary of the U.S.
multinational banking and financial services holding company,
JPMorgan Chase.[BN]
The Plaintiff is represented by:
Stephen John Simoni, Esq.
LAW OFFICES OF STEPHEN J. SIMONI
55 Ocean Avenue
Monmouth Beach, NJ 07750
Phone: (917) 621-5795
Fax: (999) 999-9999
Email: stephensimoni@yahoo.com
JPMORGAN CHASE: $15.7MM Settlement Fairness Hearing Set for May 31
------------------------------------------------------------------
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
IN RE JPMORGAN TREASURY FUTURES
SPOOFING LITIGATION
Case No.: 1:20-cv-03515 (PAE)
Summary Notice of Proposed CLASS ACTION Settlement
If you purchased or sold any U.S. Treasury Futures or Options on
U.S. Treasury Futures on United States-based exchanges, including
but not limited to the Chicago Mercantile Exchange, including its
subsidiary the Chicago Board of Trade, from April 1, 2008, through
January 31, 2016, your rights may be affected by a pending class
action settlement and you may be entitled to a portion of the
settlement fund.
This Summary Notice is to alert you to a proposed Settlement
totaling $15,700,000 (the "Settlement Amount") reached with
JPMorgan Chase & Co., J.P. Morgan Clearing Corp. (now known as J.P.
Morgan Securities LLC), J.P. Morgan Securities LLC, and J.P. Morgan
Futures, Inc. (now known as J.P. Morgan Securities LLC)
(collectively, "JPMorgan" or "Defendants") in a pending class
action (the "Action"). JPMorgan maintains that it has good and
meritorious defenses to the claims of liability and damages alleged
in the Action.
The United States District Court for the Southern District of New
York (the "Court") authorized this Summary Notice and has appointed
the lawyers listed below as Interim Co-Lead Class Counsel to
represent the Settlement Class in this Action:
Vincent Briganti
LOWEY DANNENBERG, P.C.
44 South Broadway, Suite 1100
White Plains, NY 10601
Telephone: (914) 733-7221
vbriganti@lowey.com
Karen M. Lerner
KIRBY MCINERNEY LLP
250 Park Avenue, Suite 820
New York, NY 10177
Telephone: (212) 371-6600
klerner@kmllp.com
Who is a member of the Settlement Class?
The proposed Settlement Class consists of all Persons and entities
wherever located that transacted in U.S. Treasury Futures or
Options on U.S. Treasury Futures on United States-based exchanges,
including but not limited to the Chicago Mercantile Exchange,
including its subsidiary the Chicago Board of Trade, from April 1,
2008 through January 31, 2016 (the "Class Period"). Excluded from
the Settlement Class are: (i) the Defendants and any past or
present parent, subsidiary, affiliate, or division of any
Defendant, provided that any Investment Vehicle shall not be
excluded from the Settlement Class, but under no circumstances may
JPMorgan (or any of its past or present parents, subsidiaries,
affiliates, or divisions) receive a distribution for its own
account from the Settlement Fund through an Investment Vehicle;
(ii) the United States Government; and (iii) any judicial officer
presiding over this Action, and the members of his or her immediate
family and judicial staff.
"U.S. Treasury Futures" means: (i) 2-year T-Note Futures; (ii)
3-year T-Note Futures; (iii) 5-year T-Note Futures; (iv) 10-year
T-Note Futures; (v) Ultra 10-year T-Note Futures; (vi) U.S.
Treasury Bond Futures; and (vii) Ultra U.S. Treasury Bond Futures.
"Options on U.S. Treasury Futures" means any option on U.S.
Treasury Futures.
The other capitalized terms used in this Summary Notice are defined
in the detailed Notice of Proposed Class Action Settlement, May 31,
2022, Fairness Hearing Thereon, and Class Members' Rights
("Notice") and the Settlement Agreement, which are available at
www.treasuryfuturesclassactionsettlement.com.
If you are not sure if you are included in the Settlement Class,
you can get more information, including the detailed Notice, at
www.treasuryfuturesclassactionsettlement.com or by calling
toll-free 1-877-888-8593 (if calling from outside the United States
or Canada, call 1-414-921-0342).
What is this lawsuit about and what does the Settlement provide?
Class Plaintiffs allege that Defendants unlawfully and
intentionally manipulated the prices of U.S. Treasury Futures or
Options on U.S. Treasury Futures traded on United States-based
exchanges, including but not limited to the Chicago Mercantile
Exchange, including its subsidiary the Chicago Board of Trade,
during the Class Period in violation of the Commodity Exchange Act,
7 U.S.C. Secs. 1, et seq. and the common law.
JPMorgan maintains that it has good and meritorious defenses to
Class Plaintiffs' claims and would prevail if the case were to
proceed. Nevertheless, to settle the claims in this lawsuit, and
thereby avoid the expense and uncertainty of further litigation,
JPMorgan has agreed to pay a total of $15,700,000 in cash for the
benefit of the proposed Settlement Class. If the Settlement is
approved, the Settlement Amount, plus interest earned from the date
it was established (the "Settlement Fund"), less any Taxes,
reasonable notice and administration costs, any Court-awarded
attorneys' fees and litigation expenses and Incentive Awards for
Class Plaintiffs, and any other costs or fees approved by the Court
(the "Net Settlement Fund") will be divided among all Class Members
who file valid Proof of Claim and Release Forms ("Claim Form").
If the Settlement is approved, the Action will be resolved against
JPMorgan. If the Settlement is not approved, JPMorgan (as
collectively defined above) will remain as Defendants in the
Action, and Class Plaintiffs will continue to pursue their claims
against Defendants.
Will I get a payment?
If you are a member of the Settlement Class and do not opt out, you
will be eligible for a payment under the Settlement if you file a
Claim Form. You may obtain more information at
www.treasuryfuturesclassactionsettlement.com or by calling
toll-free 1-877-888-8593 (if calling from outside the United States
or Canada, call 1-414-921-0342).
Claim Forms must be postmarked by June 30, 2022, or submitted
online at www.treasuryfuturesclassactionsettlement.com on or before
11:59 p.m. Eastern Time on June 30, 2022.
What are my rights?
If you are a member of the Settlement Class and do not opt out, you
will release certain legal rights against JPMorgan and Released
Parties as explained in the detailed Notice and Settlement
Agreement, which are available at
www.treasuryfuturesclassactionsettlement.com. If you do not want
to take part in the proposed Settlement, you must opt out by April
18, 2022. You may object to the proposed Settlement, the
Distribution Plan, and/or Interim Co-Lead Class Counsel's request
for attorneys' fees, payment of litigation costs and expenses, and
any Incentive Awards to Class Plaintiffs. If you want to object,
you must do so by April 18, 2022. Information on how to opt out or
object is contained in the detailed Notice, which is available at
www.treasuryfuturesclassactionsettlement.com.
When is the Fairness Hearing?
The Court will hold a hearing at the United States District Court
for the Southern District of New York, at the Thurgood Marshall
U.S. Courthouse, located at 40 Foley Square, New York, NY 10007, on
May 31, 2022 at 4:00 p.m. Eastern Time to consider whether to
finally approve the proposed Settlement, Distribution Plan, the
application for an award of attorneys' fees and payment of
litigation costs and expenses, and the application for any
Incentive Awards for the Class Plaintiffs. Given the current
COVID-19 situation, the Court may conduct the Fairness Hearing
remotely. You or your lawyer may ask to appear and speak at the
hearing at your own expense, but you do not have to. Any changes
to the time and place of the Fairness Hearing, or other deadlines,
will be posted to www.treasuryfuturesclassactionsettlement.com as
soon as is practicable.
For more information, call toll-free 1-877-888-8593 (if calling
from outside the United States or Canada, call 1-414-921-0342) or
visit www.treasuryfuturesclassactionsettlement.com.
**** Please do not call the Court or the Clerk of the Court for
information about the Settlement. ****
KAY'S NATURALS: Contreras Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Kay's Naturals, Inc.
The case is styled as Yensy Contreras, individually and on behalf
of all others similarly situated v. Kay's Naturals, Inc., Case No.
1:22-cv-00124 (S.D.N.Y., Jan. 6, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Kay's Naturals -- https://shop.kaysnaturals.com/ -- is a healthy
snack company that makes all of our products in a gluten-free
facility.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
KEVIN CARR: Johnson Files Suit in E.D. Wisconsin
------------------------------------------------
A class action lawsuit has been filed against Carr, et al. The case
is styled as Michael S. Johnson, Cesar Deleon, Glenn Kirvan, Gregg
Phillips, and all others similarly situated v. Kevin A Carr
Secretary Dept of Corrections, official and individual capacity;
Sarah Cooper, Administrator of Division of Adult Institutions,
official and individual capacity; Dylon Radtke, Warden, official
and individual capacity; Michelle Haese, Deputy Warden, official
and individual capacity; John Kind, Daniel Cushing; Mary Tallier,
Unit Manager; Cpt. James Ellsinger, Tonia Rozmarynoski, Jodi
Perttv, Ryan Baumann, Dr. Breen, Dr. Pennlberg, Dr. Wolfe, Kathy
Barker, Official and individual capacity; Case No.
2:22-cv-00022-BHL (E.D. Wis., Jan. 10, 2022).
The nature of suit is stated as Prisoner: Conditions of Confinement
for Prisoner Civil Rights.
Kevin A. Carr -- https://doc.wi.gov/ -- is the Secretary for the
Wisconsin Department of Corrections.[BN]
The Plaintiffs appear pro se.
LIGHTSPEED COMMERCE: Levi & Korsinsky Reminds of Jan. 18 Deadline
-----------------------------------------------------------------
The following statement is being issued by Levi & Korsinsky, LLP:
To: All persons or entities who purchased or otherwise acquired
securities of Lightspeed Commerce Inc. ("Lightspeed") (NYSE: LSPD)
between September 11, 2020 and September 28, 2021. You are hereby
notified that a securities class action lawsuit has been commenced
in the United States District Court for the Eastern District of New
York. To get more information go to:
https://www.zlk.com/pslra-1/lightspeed-commerce-inc-loss-submission-form?wire=4
or contact Joseph E. Levi, Esq. either via email at
jlevi@levikorsinsky.com or by telephone at (212) 363-7500. There is
no cost or obligation to you.
Lightspeed Commerce Inc. NEWS - LSPD NEWS
CASE DETAILS: According to the filed complaint: (i) Lightspeed had
misrepresented the strength of its business by, inter alia,
overstating its customer count, gross transaction volume, and
icrease in Average Revenue Per User, while concealing the Company's
declining organic growth and business deterioration; (ii)
Lightspeed had overstated the benefits and value of the Company's
various acquisitions; (iii) accordingly, the Company had overstated
its financial position and prospects; and (iv) as a result, the
Company's public statements were materially false and misleading at
all relevant times.
WHAT THIS MEANS TO SHAREHOLDERS: If you suffered a loss in
Lightspeed, you have until January 18, 2022 to request that the
Court appoint you as lead plaintiff. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff.
NO COST TO YOU: If you purchased Lightspeed securities between
September 11, 2020 and September 28, 2021, you may be entitled to
compensation without payment of any out-of-pocket costs or fees.
PROTECT YOUR FINANCIAL INTERESTS: Complete this brief submission
form
https://www.zlk.com/pslra-1/lightspeed-commerce-inc-loss-submission-form?wire=4
or call 212-363-7500 to discuss the case with Joseph E. Levi, Esq.
WHY LEVI & KORSINSKY: Levi & Korsinsky have a proven track record
of winning cases worth hundreds of millions of dollars for
shareholders over a 20-year period. We represent and fight for
shareholders who have been wronged by corporations.
Levi & Korsinsky is a nationally recognized firm with offices in
New York, California, Connecticut, and Washington, D.C. The Firm's
Founding Partners, Joseph Levi and Eduard Korsinsky, have been
representing shareholders and institutional clients for almost 20
years and have achieved remarkable results for clients in the U.S.
and internationally. The firm, with more than 70 employees, is
committed to fostering, cultivating and preserving a culture of
diversity, equity and inclusion for employees and those that we
represent. Our attorneys have extensive expertise representing
investors in securities litigation with a track record of
recovering hundreds of millions of dollars in cases. Levi &
Korsinsky was ranked in Institutional Shareholder Services' ("ISS")
SCAS Top 50 Report for 7 years in a row as a top securities
litigation firm in the United States. The SCAS Top 50 Report
identifies the top plaintiffs' securities law firms in the country,
and year after year, ISS has recognized Levi & Korsinsky as a
leading firm in the area of securities class action litigation.
CONTACT:
Levi & Korsinsky, LLP
Joseph E. Levi, Esq.
Ed Korsinsky, Esq.
55 Broadway, 10th Floor
New York, NY 10006
jlevi@levikorsinsky.com
Tel: (212) 363-7500
Fax: (212) 363-7171
www.zlk.com [GN]
LONG ISLAND POWER: Class Certification Order in Sandy Suit Flipped
------------------------------------------------------------------
In the case, IN THE MATTER OF LONG ISLAND POWER AUTHORITY HURRICANE
SANDY LITIGATION. JOHN COYLE, ET AL., Respondents v. LONG ISLAND
POWER AUTHORITY, Appellant, ET AL., Defendant, 2018-09629, Index
No. 601434/13 (N.Y. App. Div.), the Appellate Division of the
Supreme Court of New York, Second Department, reversed the order of
the Supreme Court granting the Plaintiffs' motion pursuant to CPLR
article 9 for class certification.
On Oct. 29, 2012, Hurricane Sandy devastated portions of the East
Coast, including much of Long Island and the Rockaways. As a result
of that storm and a nor'easter which followed approximately one
week later, approximately 95% of electric customers served by the
Long Island Power Authority (hereinafter LIPA) lost power, some for
extended periods of time.
In this putative class action, the Plaintiffs, individually and on
behalf of others similarly situated, seek, inter alia, to recover
damages for breach of contract from, among others, LIPA (see Matter
of Long Is. Power Auth. Hurricane Sandy Litig., 165 A.D.3d 1138,
1139; Matter of Long Is. Power Auth. Hurricane Sandy Litig., 134
A.D.3d 1119, 1119-1120). The Plaintiffs moved pursuant to CPLR
article 9 for class certification. The Supreme Court granted the
motion, and LIPA appeals.
When evaluating a motion for class certification, the court's
inquiry "vis-a-vis the merits is limited to a determination as to
whether on the surface there appears to be a cause of action which
is not a sham." In the case, the Appellate Division holds that an
examination of the Plaintiffs' claims demonstrates that the claims
are unsuitable for class treatment because the fact determinations
are hopelessly individual. In addition, it finds that the
Plaintiffs' attempt to characterize their causes of action as
sounding in breach of contract is not successful.
The Plaintiffs base their claims against LIPA on an allegation that
LIPA failed to fulfill its promise, made in 2006, that it would
spend $25 million annually on a 20-year "storm hardening" project
(i.e., $500 million total) intended to render its electric system
more durable and resilient in the face of major storms. However,
even assuming that the Plaintiffs can demonstrate that LIPA was
obligated to spend the promised funds and that it failed to do so,
Hurricane Sandy hit in 2012, 14 years before the expiration of the
20-year period.
Accordingly, LIPA could, at most, be held liable for the work which
should have been completed in the first 6 years of the project.
This fact, in turn, would require a determination of what work
should have been completed in that period and whether that work
would have prevented individual class members' power outages.
As the foregoing illustrates, to establish liability, the
Plaintiffs would have to demonstrate that, had LIPA performed storm
hardening work consistent with its promise, their outages would
have been shortened or avoided. This is, as LIPA argues, a
fact-driven inquiry which is both speculative and hopelessly
individual since it would require the factfinder to determine not
only what should have been completed by October 2012, but also to
speculate whether that work, had it been performed, would have
prevented or shortened individual class members' outages.
The Plaintiffs assume that, had LIPA committed resources to its
storm hardening project consistent with its promise, the class
members' power outages would have been avoided. LIPA, however,
proffered evidence that most of the named Plaintiffs' outages had
multiple causes. Further, since LIPA was only 6 years into its
20-year project, even with perfect performance, a substantial
proportion of the planned work would have remained incomplete.
Indeed, the Appellate Division questions whether even the most
comprehensive storm preparation could prevent every power
interruption. These facts, taken together, it says, fatally
undermine the Plaintiffs' premise that they are entitled to recover
damages because, had LIPA adhered to its storm hardening project,
their outages would have been avoided.
In addition, the Appellate Division holds that CPLR article 9 does
not require identity or unanimity of claims among class members,
but in the case, common questions of law or fact do not predominate
over individual questions of causation. Because of the need to
trace the various causes of the class members' outages and whether
they would have been prevented had LIPA adhered to its storm
hardening project, "given the enormity of the potential class,
possibly numbering as many as 1.1 million persons, the necessity of
conducting such individual inquiries would become the predominant
focus of the litigation, rendering the litigation extremely
difficult if not impossible to manage, and an inefficacious means
of adjudicating any underlying common issue respecting storm
hardening preparations." Accordingly, the Supreme Court should have
denied the Plaintiffs' motion for class certification on the basis
that the plaintiffs could not satisfy the requirement of
commonality.
Moreover, the Plaintiffs cannot prove that they have a breach of
contract cause of action "which is not a sham." The Plaintiffs
point to the provision of LIPA's Tariff for Electric Service which
requires it to "try, at all times, to provide regular and
uninterrupted service." However, the Appellate Division finds that
although LIPA's Tariff (along with the Long Island Power Authority
Act [Public Authorities Law Section 1020 et seq.]), sets forth the
conditions under which it is authorized to operate, it does not
create a contract between LIPA and its customers, nor does it
create a contract between LIPA and any other entity subject to
which the Plaintiffs can claim the status of intended third-party
beneficiaries.
Since "a class action certification must be founded upon an
evidentiary basis," the Supreme Court should also have denied class
certification on the basis that the Plaintiffs cannot state a
viable cause of action to recover damages for breach of contract.
In light of the foregoing, the Appellate Division need not reach
LIPA's remaining contentions.
A full-text copy of the Court's Dec. 29, 2021 Decision & Order is
available at https://tinyurl.com/2p8vra6c from Leagle.com.
Rivkin Radler LLP, in Uniondale, New York (Evan H. Krinick --
evan.krinick@rivkin.com -- Michael P. Versichelli, Brian L. Bank,
Michelle A. Bholan, and Catalina De La Hoz, of counsel), for the
Appellant.
Wolf Haldenstein Adler Freeman & Herz LLP, in New York City
(Gregory Nespole and Matthew M. Guiney -- guiney@whafh.com -- of
counsel), Wolf Popper LLP, in New York City (Joshua W. Ruthizer --
jruthizer@wolfpopper.com -- and Sean M. Zaroogian of counsel),
Parker Waichman LLP, in Port Washington, New York (Jerrold S.
Parker, Jay Breakstone, and Michael Werner of counsel), and Douglas
& London, P.C., in New York City (Michael A. London and Virginia E.
Anello of counsel), for the Respondents (one brief filed).
MATT MACAULEY: Sanders Files Suit in W.D. Michigan
--------------------------------------------------
A class action lawsuit has been filed against Matt Macauley, et al.
The case is styled as Jason L. Sanders, Anthony Murphy, Maurice H.
Fielding, Alex Garlington, Richard Gant, Damon Thomas, Robert
McClendon, Jared Vaughn, Kenneth Regal, Monte Davidson, Walter
Banks, Micah Daniel, Darrell Petty, Gabriel Rocha, Nicholas T.
Waddell, Marcellis Cook, Joe Evan Vanmeterhamblin, Rick J. Gray,
Daniel Hornik, Reginald Pettus, Curtis Watson, Keith Williams,
Jeffery Scott Kucharczyk, Hiram Wilson, Anthony Murphy, Freddy
Ortiz, Clyde Reuckert, Raymond Colvin, Brian Littlejohn, Deonta
Butler, Jesse Adair, Deontea White, Darrell Wilson, Adam
Cartwright, Lucas Basso, Devon Barnett, Dallas Conley, Octavius
Snell, Raymond McKay, Steven Taylor, Dushon McGruder, Deshawn
Smith, Kenneth Schulz, Earl Adkins, Eric Bommarrito, Brett Schultz,
Michael Gonyea, Drequan Scott, Deante Russell, Brandon R. Harris,
John R.A. Scally, Brandon Thyng, Peris A. Dorsette, Eric Martin,
Ryan Charles Diemond, Jesse Allen King, Epharim Jeremiah Harris,
Alante Jones, Michael Watters, Gordon Yoos, James Earl Williams,
Greg Partin, Willis Patton, Ronald Brady, Brandon J. Robinette,
DeQuandre Hunt, Tyress Jeffrey, Mark Bluntson, Elemaniel M. Cancel,
Leonardrow Smith, Quincy Curry, Dylan Budd, Jason Brackney, Michael
Sorrell, Ricky Scheel, Kirk Bragenzer, James Pauli, Troy Desean
Johnson, Ray Don Scott, Jr., Richard Davis, Devone Humphries, Brent
Ohmill Brown, Jr., on behalf of himself and plaintiffs named in the
complaint who are similarly situated v. Matt Macauley, Warden;
Unknown Walzach, Deputy Warden; Brian Hadden, Assistant Deputy
Warden of Housing; Unknown Lemke, P.C.; Unknown Stuntman,
Correctional Officer; Unknown Part(y)(ies) #1, named as Unknown
Healthcare Supervisor on complaint; Unknown Part(y)(ies) #2, named
as Healthcare Unit Manager on complaint; Craig Ritter, P.C. / ARUS;
Case No. 1:22-cv-00018-PJG (W.D. Mich., Jan. 7, 2022).
The nature of suit is stated as Prisoner: Prison Condition for
Prisoner Civil Rights.
McCauley is the warden of the Edmonton Penitentiary.[BN]
The Plaintiffs appear pro se.
MCDONALD'S USA: Court Certifies Class & Subclass in Ries Suit
-------------------------------------------------------------
In the case, JENNA RIES, et al., Plaintiffs v. McDONALD'S USA, LLC,
et al., Defendants, Case No. 1:20-cv-2 (W.D. Mich.), Judge Hala Y.
Jarbou of the U.S. District Court for the Western District of
Michigan, Southern Division, entered an Opinion:
a. granting the Plaintiffs' motion for class certification;
b. granting the Plaintiffs' motion to appoint their counsel as
class counsel; and
c. denying the Defendants' motion for leave to file a motion
to disqualify the Plaintiffs' expert.
Background
Plaintiffs Jenna Ries, Katlyn Barber, Joanne Bishop, and Emily
Anibal bring the action against two entities that operated a
McDonald's restaurant in Mason, Michigan. They claim that a manager
at that restaurant sexually harassed them, in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e, et
seq., and Michigan's Elliot-Larsen Civil Rights Act (ELCRA), Mich.
Comp. Laws Section 37.2101, et seq.
Defendants MLMLM Corp. and M.A.A.K.S. Inc. (collectively,
"Franchise Defendants") operated eleven McDonald's restaurants in
Michigan, including one located in Holt, one in Mason, and one in
Howell. Shawn Banks worked for Franchise Defendants as a swing
manager at the Mason restaurant from 2014 to March 2019, starting
when he was 26 years old.
The Franchise Defendants were wholly owned by Michael Dickerson and
he was the only officer of those entities. Dickerson signed a
franchise agreement with McDonald's and then assigned the franchise
rights to M.A.A.K.S. M.A.A.K.S. received the restaurant revenues
and paid rent and service fees to McDonald's. MLMLM hired and paid
the employees who worked at the restaurants, including the
Plaintiffs. MLMLM "leased" these employees to M.A.A.K.S., which
transferred money to MLMLM to cover the employees' payroll and
benefits. Under the lease agreement between MLMLM and M.A.A.K.S.,
MLMLM was responsible for supervising employees. Dickerson sold the
restaurant business in August 2020.
The Plaintiffs worked as crew members at the Mason restaurant, so
Banks had some supervisory authority over them. He interviewed some
of them before they were hired and could sometimes write them up
for minor disciplinary issues or send them home for more major
issues.
The Plaintiffs contend that Banks regularly and repeatedly harassed
them, and that the Defendants did nothing about it until March
2019. They assert claims under the ELCRA and Title VII, on behalf
of themselves and on behalf of other female employees who worked
with Banks at the Mason restaurant since November 2016.
The Franchise Defendants deny any knowledge of this harassment
until receiving a complaint from Plaintiff Ries that month. Within
a few days of that complaint, they suspended him and then he quit.
The Plaintiffs worked at the Mason restaurant at different time
periods but allege similar facts about Banks's behavior toward them
and their female co-workers.
Before the Court is the Plaintiffs' motion to certify a class
action and related motion to appoint class counsel. Also before the
Court is the Defendants' motion asking the Court to conclude that
class certification is not appropriate. The Court heard oral
argument on the motions on Dec. 17, 2021.
The Plaintiffs seek to certify the following classes under Rule
23(b)(3) of the Federal Rules of Civil Procedure:
a. The Class: All women who worked in a position below the
level of Assistant Manager at Defendants' McDonald's restaurant
located at 730 North Cedar Street in Mason, Michigan during at
least one shift with Shawn Banks since Nov. 12, 2016.
b. Title VII Subclass: All members of the proposed Class who
worked during at least one shift with Shawn Banks since Jan. 12,
2019.
Analysis
Federal Rule of Civil Procedure 23, which governs class
certification, provides that: One or more members of a class may
sue as representative parties on behalf of all only if (1) the
class is so numerous that joinder is impracticable; (2) there are
questions of law or fact common to the class; (3) the claims or
defenses of the representative parties are typical of the claims or
defenses of the class; and (4) the representative parties will
fairly and adequately protect the interests of the class. These
four prerequisites for class certification are referred to as
"numerosity, commonality, typicality, and adequacy of
representation."
If the requirements of Rule 23(a) are met, the Plaintiffs must also
establish that the class satisfies one of the three types of class
actions set forth in Rule 23(b). The Plaintiffs seek certification
under Rule 23(b)(3), which requires them to show "predominance" and
"superiority," i.e., that "the questions of law or fact common to
class members predominate over any questions affecting only
individual members, and that a class action is superior to other
available methods for fairly and efficiently adjudicating the
controversy."
Finally, courts have held that "'the class definition must be
sufficiently definite so that it is administratively feasible for
the court to determine whether a particular individual is a member
of the proposed class.'"
A. Rule 23's Requirements
1. Numerosity
The Plaintiffs assert that there are 95 members in the overall
Class and 22 members in the Title VII Subclass. Judge Jarbou holds
that a total of 99 class members is sufficient to make joinder of
all plaintiffs impracticable. The McDonald's Defendants, who are no
longer part of the case, argued that the Title VII Subclass is too
small to satisfy the numerosity requirement and that the Court
should not certify that class. However, "substantial" numbers are
sufficient. Moreover, "if the subclass members are also members of
the larger, already certified, class, the subclass may not be
required to satisfy independently the numerosity requirement." That
is the case here, says Judge Jarbou. She holds that the members of
the Title VII Subclass are also members of the Class, which
satisfies the numerosity requirement.
2. Commonality
The Plaintiffs assert that their case raises the common factual and
legal questions, including whether there was an objectively hostile
work environment in the Mason McDonald's during shifts when Banks
was working. The Defendants argue that there is not sufficient
commonality because the circumstances faced by each class member
were different. Regarding the existence of an objectively hostile
work environment, the Defendants note that the Plaintiffs worked at
different times and likely experienced different degrees or types
of harassment.
Nevertheless, Judge Jarbou is satisfied that the class members'
circumstances are sufficiently similar that the Court can resolve
issues that are common for the class. Importantly, she says, this
is not a case in which the putative class members faced
significantly different work environments at different times.
Rather, this is a case like those in which "courts have approved of
hostile work environment class actions because the work environment
is localized."
3. Typicality
Judge Jarbou is satisfied that Plaintiffs' claims are typical of
the class. She opines that the Plaintiffs' harassment claims do not
require a fact-finder to infer discriminatory intent from
circumstantial evidence. Banks' discriminatory intent was, for the
most part, apparent from the content and context of his conduct;
many of his comments and actions were clearly based on Plaintiffs'
sex. Moreover, individual employment decisions are not at issue.
The Plaintiffs' claims rest upon harm caused by many actions that
together created a hostile work environment for women, not upon
harm resulting from discrete decisions about their jobs. Thus,
statistical evidence is not necessary here, and its absence does
not prevent the Plaintiffs from meeting the requirements for class
certification.
4. Adequacy of Representation
Next, the named Plaintiffs must "fairly and adequately protect the
interests of the class." Courts look at two criteria: 1) the
representative must have common interests with unnamed members of
the class, and 2) it must appear that the representatives will
vigorously prosecute the interests of the class through qualified
counsel.
Judge Jarbou opines that the interests of the named Plaintiffs are
aligned with the interests of the class; there is no indication
that they will not vigorously prosecute the case. In addition, the
Plaintiffs' filings in the case thus far, including their motion to
appoint class counsel, provide evidence that their counsel is
qualified, experienced, and able to conduct class litigation. Given
that experience, the counsel's work identifying potential claims,
the counsel's knowledge, and the counsel's apparent resources,
Judge Jarbou is satisfied that counsel is adequate under Rule 23,
and she will grant the Plaintiffs' request to appoint their counsel
as the class counsel.
5. Predominance
For a Rule 23(b)(3) class, the common questions must predominate
over individual ones. To meet this requirement, the Plaintiffs
"'must establish that issues subject to generalized proof and
applicable to the class as a whole predominate over those issues
that are subject to only individualized proof.'"
Judge Jarbou finds that the common questions predominate over the
individual ones. Although there is some variation in the
experiences of individual class members, she says, there is
sufficient in common that predominance is satisfied. She disagrees
with the Defendants that uncertainties about the content of Ries's
reporting undermine the Plaintiffs' request for certification.
6. Superiority
The superiority of a class action follows from much of what the
Court has said regarding commonality and predominance. Among other
things, the Defendants contend that class members should litigate
their claims individually or in smaller groups, but that method
would lead to unnecessary repetition in the presentation of
evidence and the possibility of inconsistent verdicts.
Judge Jarbou holds the Defendants' objections are not persuasive.
She finds that (i) the class does not appear to be so large that
proceedings focused on an individual class member's right to relief
would be unmanageable; (ii) it appears that members of the class
would be unlikely to proceed with individual claims; (iii)
individuals are not required to report harassment to their employer
to be entitled to relief under Title VII or the ELCRA; and (iv) if
evidence of the Defendants' net worth is necessary, the Court could
take steps to minimize the prejudicial impact of that evidence,
through jury instructions or other means.
B. Definition
Finally, Judge Jarbou notes that the Class and Title VII Subclass
are appropriately defined in such a way that it is possible to
determine who is and is not a member of the class.
Conclusion
In summary, Judge Jarbou concludes that the Plaintiffs have
satisfied the prerequisites for class certification and she
believes that class certification is appropriate in the matter. For
these reasons, she granted the Plaintiffs' motion to certify a
class and denies the Defendants' motion opposing class
certification. She also granted the Plaintiffs' motion to appoint
class counsel.
The Defendants have also filed a motion for leave to file a motion
to exclude the testimony of the Plaintiffs' expert, Dr. Louise
Fitzgerald. Judge Jarbou did not rely on that testimony, however,
so the Defendants' motion was unnecessary and is denied.
The Court will enter an order consistent with the Opinion.
A full-text copy of the Court's Dec. 29, 2021 Opinion is available
at https://tinyurl.com/26268p55 from Leagle.com.
MCKINSEY & COMPANY: Southwestern Suit Transferred to N.D. Cal.
--------------------------------------------------------------
The case styled as Southwestern Central School District Board of
Education, Rochester City School District Board of Education, and
on behalf of all others similarly situated v. McKinsey & Company,
Inc., McKinsey Holdings, Inc., McKinsey & Company Inc. United
States, McKinsey & Company Inc. Washington D.C., Case No.
1:21-cv-01286, was transferred from the U.S. District Court for the
Western District of New York, to the U.S. District Court for the
Northern District of California on Jan. 7, 2022.
The District Court Clerk assigned Case No. 3:22-cv-00086-CRB to the
proceeding.
The nature of suit is stated as Racketeer/Corrupt Organization for
Racketeering (RICO) Act.
McKinsey & Company -- https://www.mckinsey.com/ -- is a management
consulting firm, founded in 1926 by University of Chicago professor
James O. McKinsey, that advises on strategic management to
corporations, governments, and other organizations.[BN]
The Plaintiff is represented by:
Andrew J. Freedman, Esq.
HODGSON RUSS LLP
The Guaranty Building
140 Pearl Street, Suite 100
Buffalo, NY 14202
Phone: (716) 856-4000
Fax: (716) 849-0349
Email: afreedma@hodgsonruss.com
- and -
Karl W. Kristoff, Esq.
235 Belvoir Road
Williamsville, NY 14221
Phone: (716) 634-1343
Email: kwk278@aol.com
META MATERIALS: Bragar Eagel Reminds of March 4 Deadline
--------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized shareholder
rights law firm, reminds investors that class actions have been
commenced on behalf of stockholders of Meta Materials Inc (NASDAQ:
MMAT). and Talis Biomedical Corporation (NASDAQ: TLIS).
Stockholders have until the deadlines below to petition the court
to serve as lead plaintiff. Additional information about each case
can be found at the link provided.
Meta Materials Inc. (NASDAQ: MMAT)
Class Period: September 21, 2020 - December 14, 2021
Lead Plaintiff Deadline: March 4, 2022
According to the lawsuit, defendants throughout the Class Period
made false and/or misleading statements and/or failed to disclose:
(1) the business combination of Torchlight Energy Resources, Inc.
and Metamaterial Inc. would result in an SEC investigation and
subpoena in the matter captioned In the Matter of Torchlight Energy
Resources, Inc.; (2) the Company has materially overstated its
business connections and dealings; (3) the Company has materially
overstated its ability to produce and commercialize its products;
(4) the Company has materially overstated its products' novelty and
capabilities; (5) the Company's products did not have the potential
to be disruptive because, among other things, the Company priced
its products too high; and (6) as a result, Defendants' public
statements were materially false and/or misleading at all relevant
times.
For more information on the KE Holdings class action go to:
http://bespc.com/cases/MMAT
Talis Biomedical Corporation (NASDAQ: TLIS)
Class Period: February 12, 2021 IPO
Lead Plaintiff Deadline: March 8, 2022
The complaint filed in this class action alleges that the
Registration Statement was false and misleading and omitted to
state material adverse facts. Specifically, Defendants failed to
disclose to investors: (1) that the comparator assay in the primary
study lacked sufficient sensitivity to support Talis's EUA
application for Talis One COVID-19 test; (2) that, as a result,
Talis was reasonably likely to experience delays in obtaining
regulatory approval for the Talis One COVID-19 test; (3) that, as a
result, the Company's commercialization timeline would be
significantly delayed; 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.
For more information on the Talis Biomedical class action go to:
https://bespc.com/cases/TLIS
About Bragar Eagel & Squire, P.C.:
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes.
Contact Information:
Bragar Eagel & Squire, P.C. Brandon Walker, Esq. Alexandra B.
Raymond, Esq. (212) 355-4648 investigations@bespc.comwww.bespc.com
[GN]
META MATERIALS: Robbins LLP Reminds of March 4 Deadline
-------------------------------------------------------
Shareholder rights law firm Robbins LLP informs investors that a
shareholder filed a class action on behalf of all persons who
purchased or otherwise acquired the publicly traded securities of
Meta Materials Inc. (NASDAQ: MMAT) between September 20, 2020 and
December 14, 2021, for violations of the Securities Exchange Act of
1934. Meta Materials purports to be a developer of high-performance
functional materials and nanocomposites.
Meta Materials Inc. (MMAT) Misled Investors Regarding its Business
Prospects
According to the complaint, before the business combination with
Metamaterial Inc., which closed on June 28, 2021, the Company was
known as Torchlight Energy Resources, Inc. The Company touted the
business combination, as well as Metamaterial's proprietary
advanced technologies, agreements, commercialization, products, and
production. However, as would later be revealed, defendants failed
to disclose that the Company had materially overstated its business
connections and dealings, had misstated its products' novelty and
capabilities, and priced its products too high.
On November 15, 2021, Meta Materials filed with the SEC its
quarterly report for the period ended September 30, 2021,
announcing that in September 2021, it had received a subpoena from
the SEC requesting the Company to produce certain documents and
information related to, among other things, the merger involving
Torchlight Energy and Metamaterial Inc. On this news, Meta
Materials' shares fell almost 4%, to close at $4.77 per share on
November 16, 2021, damaging investors.
Then, on December 14, 2021, market researcher Kerrisdale Capital
released a report alleging that, among other things, "Meta has
habitually made outlandish and misleading claims about the
feasibility, development, and commercial potential of various
technologies only to repeatedly move the goalposts or
retrospectively alter its claims, often just quietly dropping
entire projects they had previously touted as pivotal." On this
news, Meta Materials' shares fell 5.8%, to close at $2.91 per share
on December 14, 2021.
If you purchased shares of Meta Materials Inc. (MMAT) between
November 18, 2020 and November 19, 2021, you have until March 4,
2022, to ask the court to appoint you lead plaintiff for the
class.
All representation is on a contingency fee basis. Shareholders pay
no fees or expenses.
Contact us to learn more:
Aaron Dumas
5040 Shoreham Place
San Diego, CA 92122
(800) 350-6003
adumas@robbinsllp.com
www.robbinsllp.com
About Robbins LLP: A recognized leader in shareholder rights
litigation, the attorneys and staff of Robbins LLP have been
dedicated to helping shareholders recover losses, improve corporate
governance structures, and hold company executives accountable for
their wrongdoing since 2002. To be notified if a class action
against Meta Materials Inc. settles or to receive free alerts when
corporate executives engage in wrongdoing, sign up for Stock Watch
today.
Attorney Advertising. Past results do not guarantee a similar
outcome. [GN]
MICHIGAN: District Court Enters Final Judgment in Doe v. Curran
---------------------------------------------------------------
Judge Robert H. Cleland of the U.S. District Court for the Eastern
District of Michigan, Northern Division, entered Final Judgment in
the case, JOHN DOE and JOHN DOE 2, Plaintiffs v. BRENDAN P. CURRAN,
et al., Defendants, Case No. 18-11935 (E.D. Mich.).
On Jan. 10, 2020, the Court issued an opinion and order determining
that Defendant Schriner is entitled to quasi-judicial immunity
regarding the Plaintiffs individual capacity claims, and that
Defendants Curran, Nowicki and Puzon are entitled to qualified
immunity regarding the Plaintiffs individual capacity claims.
The Jan. 10, 2020 opinion and order "disposes of all the claims for
money damages and leaves the sole issue in the case the claim for
injunctive and declaratory relief brought against Defendants in
their official capacity." Also in the Jan. 10, 2020 opinion and
order, as to the Plaintiff's official capacity claims against all
the Defendants, the Court determined that the "Plaintiffs'
requested relief is the precise remedy sought by the certified
class in Does II [Doe, et al. v. Whitmer, et al., USDC ED of MI No.
16-13137].
The Plaintiffs do not dispute their membership in the mandatory
Does II class nor do they argue that their claims for declaratory
or injunctive relief differ from those of the certified class. As
members of the certified Rule 23(b)(2) class in Does II, the
Plaintiffs' claims for declaratory and injunctive relief are
subsumed in the class action claims. The Plaintiffs have no right
to separately litigate their claims for injunctive relief because
doing so would create the potential for inconsistent judgments."
The case was stayed pending the resolution of Does II.
The Michigan Legislature thereafter passed, and the Michigan
governor signed, Michigan Public Act 295 of 2020 (HB 5679), which
repealed certain provisions and amended other provisions of
Michigan's Sex Offenders Registration Act, and which took effect on
March 24, 2021 ("new SORA"). Under the new SORA, the specific
provisions challenged by Plaintiffs in their official capacity
claims have been repealed effective March 24, 2021, including the
"student safety zone" provisions, Mich. Comp. Laws Sections
28.733-735.
An amended final judgment was entered in the Does II class action
on Aug. 26, 2021. The amended final judgment in Does II declares
Michigan's pre-2021 SORA to be punishment and also declares that
the pre-2021 SORA is null and void as applied to members of the ex
post facto subclasses, including the Plaintiffs, regarding conduct
that occurred before March 24, 2021. The amended final judgment in
Does II permanently enjoins enforcement of any provision of the
pre-2021 SORA against members of the ex post facto subclasses,
including Plaintiffs, for conduct that occurred before March 24,
2021.
The amended final judgment in Does II declares certain provisions
of the pre-2021 SORA unconstitutional and enjoins enforcement of
those provisions against any registrant, including the Plaintiffs,
for any violation that occurred before March 24, 2021. The
declaration and injunction apply to the specific provisions
challenged by the Plaintiffs in their official capacity claims,
including the "student safety zone" provisions, Mich. Comp. Laws
Sections 28.733-735. The amended final judgment in Does II mandates
that the pre-2021 SORA must be interpreted as incorporating a
knowledge requirement.
Judge Cleland holds that the Court cannot enter separate injunctive
relief for the Plaintiffs because their claim for injunctive relief
is subsumed by the Does II class. As a result of the relief granted
in Does II and the legislative changes to SORA, the Plaintiffs
claims for injunctive and declaratory relief against the Defendants
in their official capacity are moot. As a result of the relief
granted in Does II, the preliminary injunction granted to John Doe
1 in the instant case is no longer necessary and the preliminary
injunction is dissolved.
Based on the foregoing, Judge Cleland entered final judgment in
favor of the Defendants. All of the Plaintiffs' individual and
official capacity claims against all he Defendants are dismissed
with prejudice.
A full-text copy of the Court's Dec. 29, 2021 Final Judgment is
available at https://tinyurl.com/4res3v4s from Leagle.com.
MIYOKO'S KITCHEN: Contreras Files ADA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Miyoko's Kitchen. The
case is styled as Yensy Contreras, individually and on behalf of
all others similarly situated v. Miyoko's Kitchen, Case No.
1:22-cv-00135 (S.D.N.Y., Jan. 6, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Miyoko's Creamery, formerly Miyoko's Kitchen --
https://miyokos.com/ -- is an American food producer primarily
specializing in dairy-free products including butter and a wide
variety of different types of cheeses using traditional
cheesemaking cultures and techniques, chiefly out of cashews, oats
and chickpea flour.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
MONTGOMERY COUNTY, PA: Overby Complaint Dismissed Without Prejudice
-------------------------------------------------------------------
In the case, KEVIN OVERBY, Plaintiff v. KEVIN R. STEELE, et al.,
Defendants, Civil Action No. 21-CV-5030 (E.D. Pa.), Judge Joel H.
Slomsky of the U.S. District Court for the Eastern District of
Pennsylvania granted the Plaintiff leave to proceed in forma
pauperis and dismissed his complaint for failure to state a claim
without prejudice to amendment.
Introduction
Plaintiff Overby filed the civil action pursuant to 28 U.S.C.
Section 1983 against several officials in Montgomery County,
Pennsylvania, based on allegations that he has been improperly
denied certain benefits. Overby seeks to proceed in forma pauperis
in the matter.
Background
Mr. Overby's Complaint does not contain a caption that names all
the parties in accordance with Federal Rule of Civil Procedure 10.
However, it appears he seeks to name following Defendants: (1)
Kevin R. Steele, the District Attorney for Montgomery County; (2)
Valerie A. Arkoosh, Chair of the Montgomery County Board of
Commissioners; (3) Kenneth E. Lawrence, Vice Chair of the
Montgomery County Board of Commissioners; and (4) Joseph C. Gale,
Commissioner of the Montgomery County Board of Commissioners.
The Court understands Overby to be raising claims on behalf of
himself, his family, including his niece and nephew, and a "class
of persons similarly situated" in connection with the termination,
modification, or suspension of benefits under two government
programs.
Mr. Overby's allegations concern benefits to which he claims he was
entitled under Pennsylvania's Crime Victims Act, see 18 Pa. Cons.
Stat. Section 11.101 et seq. He alleges that in June 2008 he was
supposed to receive $500,000 in "victim compensation" in connection
with an "attempted homicide case." He alleges that he never
received that compensation, which he describes as "withheld and
terminated without notice." Overby adds that, in April 2018, his
mother filed for victim compensation in connection with a separate
homicide case in which it appears his sister was the victim. The
request appears to have been submitted on behalf of Overby's mother
and his sister's "two small children."
Although unclear, the Court understands Overby to be alleging that
the total "restitution" available for his sister's homicide case is
$1 million, and that his mother's request for victim compensation
amounted to $28,000.
Mr. Overby's mother passed away in 2019. It appears Overby at some
point thereafter sought to receive victim compensation for himself
and his sister's children as his mother had done, but was informed
that he would have to reapply. He also alleges that "at no time was
he afforded an opportunity for a hearing on the continued
eligibility" of himself or his sister's children.
Mr. Overby also alleges that he and his sister's children were
"recipients of grants under the aid to Families with Dependent
Children" ("AFDC") as of April 28, 2018, i.e., around the same time
that Overby's mother applied for compensation under the Crime
Victim Act. He adds that "at the present time his family is
eligible" for aid under AFDC.
Mr. Overby appears to be pursuing claims based on the denial,
modification, or suspension of benefits under this program because
he seeks an injunction prohibiting the Defendants "from terminating
a grant made to them under the program of Aid to Families with
Dependent Children (AFDC)" without providing proper notice or an
opportunity to be heard. However, it is not clear whether or when
Overby applied for aid -- especially since his Motion to Proceed In
Forma Pauperis reflects that he was only recently released from the
Montgomery County Correctional Facility, when he previously
received aid, and the circumstances under which his benefits may
have been terminated, modified, or suspended.
The Complaint also implies that there has been an unspecified
change or modification in the manner in which the program is
administered, because Overby alleges a relevant provision is
"unconstitutional insofar as it permits a county welfare board to
revoke, modify or suspend an AFDC grant at 'any time' without prior
notice and an opportunity to be heard." In addition to injunctive
relief, Overby seeks declaratory relief and unspecified "damages
for the amount of public assistance wrongfully withheld" under
these two programs.
Discussion
A. Claims Raised on Behalf of Others
In addition to raising claims on his own behalf, Overby raises
claims on behalf of minor children in his family (his Motion to
Proceed In Forma Pauperis lists a son and his niece and nephew as
dependents), and a class of similarly-situated individuals.
Judge Slomsky explains that under 28 U.S.C. Section 1654, parties
"may plead and conduct their own cases personally or by counsel" in
the federal courts. Section 1654 thus ensures that a person may
conduct his or her own case pro se or retain counsel to do so.
Although an individual may represent herself pro se, a non-attorney
may not represent other parties in federal court. For these
reasons, any claims Overby brings on behalf of others, including by
way of a class action, must be dismissed without prejudice.
B. Claims Raised on Behalf of Overby
Liberally construing the Complaint, Judge Slomsky understands
Overby to be raising due process challenges related to the
modification, suspension, termination, or administration of
benefits to which he claims he is entitled under Pennsylvania's
Crime Victims Act and the AFDC. To state a claim under Section
1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that
the alleged deprivation was committed by a person acting under
color of state law."
Judge Slomsky finds that the Complaint fails to clearly allege what
happened to Overby in connection with his efforts to obtain
benefits or compensation under these provisions, facts
demonstrating he is entitled to the monies he sought, the basis
upon which Overby is challenging these statutes, and how those
matters relate to each other. Accordingly, the Complaint fails to
comply with Rule 8 and does not state a claim as pled.
1. Crime Victims Act
In his Complaint, Overby cites certain provisions of Pennsylvania's
Crime Victims Act, 18 Pa. Cons. Stat. Section 11.211, Section
11.212, Section 11.213, Section 11.701, Section 11.702, Section
11.704, Section 11.707, Section 11.708, Section 11.709, Section
11.710, Section 11.902. Certain of these provisions impose
responsibilities on victims of crimes, State and local law
enforcement agencies, and the prosecutor's office, the relevance of
which to any possible claims in the case is unclear. Several other
provisions establish a system for certain crime victims to receive
compensation, including a direct victim or parent or child of a
deceased direct victim.
Judge Slomsky finds that the nature and contours of the claim or
claims that Overby intends to bring in connection with these
statutes is well disguised. Overby appears to seek a declaration
that certain of these provisions are unconstitutional because they
"permit a county welfare board to revoke, modify, or suspend an
AFDC grant at 'any time' without prior notice and an opportunity to
be heard."
However, Judge Slomsky finds that the cited provisions do not speak
to the modification or termination of a grant at any time, even
assuming the reference to AFDC in this context was an error. Other
allegations that appear relevant to Overby's claims relating to his
non-receipt of compensation as a crime victim, apart from Overby's
unexplained references to the statutory provisions, do not reflect
whether Overby ever submitted a claim for an award under the Crime
Victims Act, when he submitted that claim or claims, and, if he did
submit any claims, the details of how they were processed and what
ultimately caused him not to receive a payment to which he believes
he was entitled.
Even assuming there could be some basis for a due process claim
here, which the Court does not decide, Judge Slomsky says it is
unclear how any of the named Defendants would be responsible for
Overby's failure to receive an award under Pennsylvania's Crime
Victims' Act or any alleged mishandling of his claims since neither
the Defendants nor the agencies for which they work are responsible
for processing claims under the statute.
In sum, it is not possible to understand the "who, what, where,
when and why' of Overby's claims" based on allegations that he did
not receive compensation as a crime victim.
2. AFDC
The factual basis for Overby's claims related to the denial,
modification, or termination of benefits under AFDC is also
unclear. Overby alleges that as of April 28, 2018 he was a
recipient of aid under AFDC. He also alleges that his family is
currently eligible for aid under AFDC. Overby indicates that he is
challenging "summary termination, suspension, or decrease of public
assistance grants" without due process, which caused hardship
including the inability to obtain adequate food, clothing, shelter,
and proper medical care.
Judge Slomsky holds that Overby does not allege that his benefits
were modified, terminated, or suspended, nor does he allege the
circumstances under which any such modification, termination or
suspension occurred or when the suspension occurred. It is also
unclear whether he has filed for benefits to obtain aid given his
alleged current eligibility. Given the absence of facts about the
who, what, where, when and why of these claims, Overby's Complaint
fails to comply with Rule 8 and does not allege a plausible claim.
Conclusion
For the foregoing reasons, Judge Slomsky granted Overby leave to
proceed in forma pauperis, dismissed any claims brought on behalf
of others, and dismissed his individual claims for failure to
comply with Rule 8 and for failure to state a claim. Overby is
given leave to file an amended complaint in the event he can allege
sufficient facts to state a claim against an appropriate
defendant.
Judge Slomsky Court notes that, in submitting his Complaint and
Motion to Proceed In Forma Pauperis, Overby mailed his filings to
the Pennsylvania Superior Court, which transmitted them to the
Court. If Overby intends to pursue his claims in the Court, he
should mail his filings to the Clerk of Court at James A. Byrne
U.S. Courthouse, Room 2609, 601 Market Street, Philadelphia Pa
19106. If Overby did not intend to pursue claims in the Court, he
may move to withdraw this case without prejudice.
An Order follows.
A full-text copy of the Court's Dec. 29, 2021 Memorandum is
available at https://tinyurl.com/2s44ppvs from Leagle.com.
NASONCARE LLC: Underpays Radiologic Technologists, Anderson Says
----------------------------------------------------------------
WENDY ANDERSON, on behalf of herself and others similarly situated,
Plaintiff v. NASONCARE LLC, and BARRON S. NASON, Defendants, Case
No. 2:21-cv-04132-RMG (D.S.C., December 22, 2021) is a collective
action complaint brought against the Defendants for their alleged
violations of the overtime wage provisions of the Fair Labor
Standards Act.
The Plaintiff was employed by the Defendants as a radiologic
technologist from August 18, 2019 until her retaliatory termination
on January 13, 2020.
According to the complaint, the Plaintiff and other similarly
situated employees regularly worked in excess of 40 hours a week.
However, the Defendants did not pay them overtime compensation at
the rate of one and one-half times their regular rates of pay when
they worked more than 40 hours per workweek. In addition, the
Defendants did not compensate them for their meal breaks regardless
of whether they had a bonafide meal breaks because they were
required to take care of patients and to respond immediately to all
calls for assistance. Instead, the Defendants deducted one hour per
shift for meal breaks. Allegedly, the Defendants' policy and
practice of requiring the Plaintiff and other similarly situated
employees to work through their uncompensated meal breaks denied
them wages at their regular rate and their overtime rate. The
Plaintiff also claims that she was illegally terminated by the
Defendants when she sent an email to the Human Resource Manager
complaining about having to work during her one-hour uncompensated
meal break.
NasonCare LLC is an outpatient medical provider that treats
patients for acute injury and illnesses. Barron S. Nason is a
medical doctor who owns and operates NasonCare. [BN]
The Plaintiff is represented by:
Marybeth Mullaney, Esq.
MULLANEY LAW, LLC
652 Rutledge Ave Ste A
Charleston, SC 29403
Tel: (843) 588-5587
E-mail: marybeth@mullaneylaw.net
ORANGEBURG COUNTY, SC: Sued Over Illegal Road Maintenance Fees
--------------------------------------------------------------
Gene Zaleski, writing for Index-Journal, reports that two
class-action lawsuits have been filed -- one in Orangeburg County
and one in Bamberg County -- claiming the counties' road
maintenance fees are illegal and asking the governmental bodies to
refund residents the road fees paid.
The eight-page Orangeburg County lawsuit and 17-page Bamberg County
lawsuit both cite a recent South Carolina Supreme Court ruling in
Greenville County stating that that county's road-user fees are
illegal.
The lawsuits claim Orangeburg and Bamberg counties' road-user fees
are similar to Greenville County's and should also be ruled
illegal.
In the Greenville County case, the S.C. Supreme Court ruled that
the county's road fees are not legal because they are actually
taxes, not fees, and must get legislative approval.
The court ruled that a fee must provide a unique benefit to the
people paying it that is different from the benefit the general
public receives.
In Greenville County's case, people who paid a road fee received no
greater benefit than any other non-Greenville County person who
used the same roads.
The Orangeburg and Bamberg class-action lawsuits claim county
residents should be refunded the collected fees and a 10-time
multiplier penalty should be paid to residents, per state law.
The Orangeburg County lawsuit was filed on behalf of Orangeburg
County resident Carroll Brown.
Orangeburg County Administrator Harold Young, Orangeburg County
Treasurer Matt Stokes, Orangeburg County Council and Orangeburg
County are listed as defendants. The lawsuit was filed Nov. 1 in
the Orangeburg County Court of Common Pleas.
The plaintiff's attorneys are William Lewis of the Richardson &
Thomas firm of Columbia, Davis Price of Greenville and the Hodge &
Langley Law firm of Spartanburg.
The county is in the process of responding, Orangeburg County
Administrator Harold Young said.
Young and the county have defended its road-user fees.
Young said in October 2021 that the county's fee has withstood
scrutiny for over three decades confirming its legality. Orangeburg
County's road and bridge maintenance fee is used for the
maintenance of paved and dirt roads.
Orangeburg County's road-user fee has been in place since June 15,
1987. It brought in about $3.4 million during the 2020-21 fiscal
year for road and bridge maintenance.
In June, Orangeburg County Council adopted the fiscal year 2021-22
budget, which included an increase in its road and bridge
maintenance fee from $45 to $50 a vehicle.
Orangeburg County Council has gone on record asking lawmakers to
take the necessary steps to allow it to continue collecting user
fees that fund public safety and infrastructure projects.
T&D Region counties have approved a S.C. Association of Counties
resolution that states the counties are in favor of the proposed
road fee.
Orangeburg County officials say if the road-user fee is deemed
illegal, they would consider other sources of revenue within the
county's budget or possibly look at reduction of services in an
effort to avoid tax increases.
"It is a $3 million hit to the budget," Young said.
Young said he believes the county's road fees pass muster because
they were imposed before 1997 as the law notes that these fees are
valid "unless repealed by the governing body."
Young said the county will go through the legal process and will
make decisions according to how the court rules.
Bamberg County
The Bamberg County lawsuit was filed on behalf of Sarah Kandy
Yearry. Bamberg County Council, Bamberg County Administrator Joey
Preston and Bamberg County Treasurer Alice Johnson are listed as
defendants.
The Bamberg lawsuit was filed Dec. 2, 2021, in the Court of Common
Pleas 15th Judicial Circuit.
The attorneys for the plaintiffs in the Bamberg County suit are
Speights and Solomons LLC; Galvin Law Group LLC, and Savage Royall
and Sheheen LLP.
Orangeburg County in another COVID surge; surgical, N95 masks
recommended, administrator says
Bamberg County's road-user fee brings in $390,000 annually and,
like Orangeburg County's, is about $50 a vehicle.
Preston earlier this year said he believes the county can
"demonstrate that our property owners do indeed derive some greater
benefit" from the fee than others.
"In my view, Bamberg County can meet this exemption standard,
mainly due to the fact that our road system is mostly non-paved
(dirt) roads, and the non-paved roads are mostly used by folks who
own property on those roads, and who live on those dirt roads,"
Preston said.
Preston said the loss of the fee would "have a substantially
negative impact on Bamberg County's citizens."
"With that said, Bamberg County is not situated like South
Carolina's other counties and we believe the county's road-fee
ordinance will be upheld due to those differences."
Lawsuits
The lawsuits are asking the courts to declare the road fees
"invalid and improper," and that residents recover monetary damages
for "the invalid and illegal retention of road fees."
The class-action lawsuits list four causes of action against the
defendants.
1. Unjust enrichment: "Defendants, despite being on notice of the
invalidity of this road fee have to date failed to refund plaintiff
and the class members the money improperly taken for the road
fee."
"Defendants retention of the road fees is inequitable and
accordingly defendants are obligated to pay damages," the lawsuit
states.
2. Violation of state law: This cause of action specifically cites
Young and Stokes and Johnson and Preston as overseeing the
collection and retention of fees and cites state code that the
officials are "liable to forfeit ten times the amount so improperly
charged."
"Any illegally collected fees should be returned and a ten-time
multiplier penalty should be paid to the plaintiff and each member
of the class," the lawsuit states.
3. Violation of due process of the state constitution in that
residents were deprived of property without due process of law by
having to pay the monetary fees.
"Plaintiff and the class members have cognizable property interest
in their money that they were forced to give to defendants to the
illegal ordinances," the lawsuit states.
4. A request for a declaratory judgment from the court that the
road-user fee is unlawful for reasons articulated in the Greenville
court decision and that the defendants owe the plaintiff refunds
with interest.
The lawsuits cite the state Supreme Court's June ruling in
Greenville as declaring an "almost identical road maintenance fee"
as illegal.
"Upon information and belief, defendants have refused to return the
ill-gotten fees despite the illegality of the road maintenance fee
as detailed in the Burns decision," the suit states.
Calhoun County
Calhoun County currently does not have a road-user fee.
County Council gave first reading this summer to a road and fire
fee to help offset the rise in operations and maintenance costs
from the two departments. That decision has been put on hold as a
result of the Greenville ruling.
Elsewhere
In Greenville County, the county had to pay about $130,000 in legal
fees following the lawsuit, which was settled in October.
The county chose not to refund the $30 million in its collection of
the fees, but rather to use the money for needed road maintenance.
As a result, a class-action lawsuit has also been filed by a
Greenville County citizen requesting the county pay residents the
collection fees and face a penalty.
Several class-action suits have been filed across the state against
a number of counties with road-user fees requesting the same.
Some counties facing lawsuits are Aiken, Beaufort, Charleston,
Florence, Georgetown, Horry, Pickens, Richland, Sumter and
Spartanburg, according to the South Carolina Association of
Counties.
The Town of Hilton Head Island and the City of Aiken are two
municipalities facing lawsuits, according to the South Carolina
Municipal Association. [GN]
OREGON: Court Stays Gardner v. Brown Pending Resolution of Maney
----------------------------------------------------------------
In the case, TYLER GARDNER; 1,700 JOHN DOES; and all others
similarly situated, Plaintiffs v. KATE BROWN et al., Defendants,
Case No. 2:21-cv-01256-SB (D. Or.), Magistrate Judge Stacie F.
Beckerman of the U.S. District Court for the District of Oregon
granted the Defendants' motion to stay the litigation.
Background
Mr. Gardner, a self-represented litigant in the custody of the
Oregon Department of Corrections ("ODOC"), filed the civil rights
action under 42 U.S.C. Section 1983 against Governor Brown, Colette
Peters, Oregon Health Authority ("OHA"), and 100 John Does
(together, "Defendants"), alleging violations of his First, Eighth,
and Fourteenth Amendment rights, and the Religious Land and
Institutionalized Person Act.
Mr. Gardner is an adult in custody (AIC) currently housed at the
Eastern Oregon Correctional Institution. On Aug. 23, 2021, Gardner
filed the action against the Defendants, alleging that (1) the
Defendants' failure adequately to respond to COVID-19 violates his
Eighth Amendment rights; (2) the Defendants "forced mask mandates
on incarcerated vaccinated individuals, while excluding
non-incarcerated individuals from the mask mandates" in violation
of his Fourteenth Amendment rights; and (3) the Defendants
terminated religious services and practices in violation of his
First Amendment rights and the Religious Land and Institutionalized
Person Act.
Sixteen months earlier, on April 6, 2020, seven AICs (the "Maney
Plaintiffs"), housed at four ODOC institutions, filed a civil
rights action under Section 1983 against Governor Brown and several
ODOC officials (together, the "Maney Defendants") (Defs.' Mot. to
Stay at 3, ECF No. 10; Maney et al. v. Brown et al.,
6:20-cv-00570-SB ("Maney")). The Maney Plaintiffs allege that the
Maney Defendants acted with deliberate indifference to their health
and safety by failing adequately to protect them from COVID-19
through social distancing, testing, sanitizing, medical treatment,
masking, and vaccines.
On Dec. 13, 2021, the Defendants filed a motion to stay this matter
pending resolution of the motion for class certification in Maney.
Analysis
Judge Beckerman finds that, on balance, the relevant factors weigh
in favor of staying the action pending resolution of class
certification in Maney. First, there is substantial overlap between
the parties and legal issues to resolve in the Maney case and the
instant case, as both actions include Section 1983 claims alleging
that ODOC officials acted with deliberate indifference to AICs'
health and safety by failing adequately to protect them from
COVID-19. A stay will conserve judicial resources by avoiding
duplicative litigation.
Furthermore, a stay in the case will not result in significant
delay, as the motion for class certification in Maney will be fully
briefed by Jan. 7, 2022. If the Court grants the Maney Plaintiffs'
motion for class certification, Gardner may have the option of
proceeding as a member of the Damages Class if he has tested
positive or has otherwise been diagnosed with COVID-19, or he may
opt out and litigate his own case. On the other hand, if the Court
denies class certification, Gardner faces only a brief delay in
this matter.
Conclusion & Order
For these reasons, Judge Beckerman concludes that staying the
litigation will conserve judicial resources by avoiding duplicative
litigation, and a stay will not unduly prejudice Gardner. She
granted the Defendants' motion to stay, and stayed the action
pending resolution of class certification in the Maney case.
A full-text copy of the Court's Dec. 29, 2021 Opinion & Order is
available at https://tinyurl.com/2z3yt633 from Leagle.com.
ORGANOGENESIS HOLDINGS: Rosen Law Firm Reminds of Feb. 8 Deadline
-----------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, reminds
purchasers of the securities of Organogenesis Holdings Inc.
(NASDAQ: ORGO) between March 17, 2021 and October 11, 2021,
inclusive (the "Class Period"), of the important February 8, 2022
lead plaintiff deadline.
SO WHAT: If you purchased Organogenesis securities during the Class
Period you may be entitled to compensation without payment of any
out of pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the Organogenesis class action, go to
http://www.rosenlegal.com/cases-register-2177.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than February 8, 2022.
A lead plaintiff is a representative party acting on behalf of
other class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Many of these firms do not actually
litigate securities class actions. Be wise in selecting counsel.
The Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) Organogenesis improperly billed
the federal government for its Affinity (a wound covering product)
and PuraPly XT (an antimicrobial barrier) products by, among other
things, setting the price for those products multiple times higher
than similar products; (2) Organogenesis improperly induced doctors
to use its Affinity and PuraPly XT products through lucrative
reimbursements; (3) as a result of all the foregoing, the Company's
revenue and profits derived from its Affinity and PuraPly XT
products were at least in substantial part unsustainable; and (4)
as a result, defendants' public statements were materially false
and misleading at all relevant times. When the true details entered
the market, the lawsuit claims that investors suffered damages.
To join the Organogenesis class action, go to
http://www.rosenlegal.com/cases-register-2177.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
PAYSAFE LIMITED: Rosen Law Firm Reminds of February 8 Deadline
--------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, reminds
purchasers of the securities of Paysafe Limited f/k/a Foley
Trasimene Acquisition Corp. II (: PSFE, BFT) between December 7,
2020 and November 10, 2021, inclusive (the "Class Period"), of the
important February 8, 2022 lead plaintiff deadline.
SO WHAT: If you purchased Paysafe securities during the Class
Period you may be entitled to compensation without payment of any
out of pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the Paysafe class action, go to
http://www.rosenlegal.com/cases-register-2208.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than February 8, 2022.
A lead plaintiff is a representative party acting on behalf of
other class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Many of these firms do not actually
litigate securities class actions. Be wise in selecting counsel.
The Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) Paysafe was being negatively
impacted by gambling regulations in key European markets; (2)
Paysafe was encountering performance challenges in its Digital
Wallet segment; (3) new eCommerce customer agreements were being
pushed back; and (4) as a result of the foregoing, defendants'
positive statements about Paysafe's business, operations, and
prospects were materially misleading and/or lacked a reasonable
basis. When the true details entered the market, the lawsuit claims
that investors suffered damages.
To join the Paysafe class action, go to
http://www.rosenlegal.com/cases-register-2208.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
PEOPLECONNECT INC: Izzo Files Suit in W.D. Washington
-----------------------------------------------------
A class action lawsuit has been filed against PeopleConnect, Inc.
The case is styled as Alyssa Izzo, John Wilson, on behalf of
themselves and all others similarly situated v. PeopleConnect,
Inc., Case No. 2:22-cv-00016 (W.D. Wash., Jan. 6, 2022).
The nature of suit is stated as Constitutional - State Statute.
Peopleconnect, Inc. -- https://peopleconnect.us/ -- provides online
social network services. The Company offers basic people search,
list management, criminal records, employee screening, human
resources background checks, and identity theft protection
services.[BN]
The Plaintiff is represented by:
Samuel J. Strauss, Esq.
TURKE & STRAUSS LLP
613 WILLIAMSON ST., STE 201
MADISON, WI 53703
Phone: (608) 237-1775
Fax: (608) 509-4423
PONGSRI THAI: Class Settlement in Rodpracha Suit Wins Partial Nod
-----------------------------------------------------------------
In the case, KITIPONG RODPRACHA, et al., Plaintiffs v. PONGSRI THAI
RESTAURANT CORP., et al., Defendants, Case No. 14cv02451 (DF)
(S.D.N.Y.), Magistrate Judge Debra Freeman of the U.S. District
Court for the Southern District of New York approves the parties'
settlement agreement as fair and reasonable in all respects except
for the amount of requested attorneys' fees.
In the action under the Fair Labor Standards Act and the New York
Labor Law, which is before the Court on the consent of the parties
pursuant to 28 U.S.C. Section 636(c), the parties have reached an
agreement in principle to resolve the action, and the Plaintiffs
have now filed a motion seeking Court approval of the proposed
settlement agreement, pursuant to Cheeks v. Freeport Pancake House,
Inc., 796 F.3d 1999 (2d Cir. 2015) (requiring judicial fairness
review of FLSA settlements).
The Plaintiffs have also submitted an attorney declaration from
their counsel, John Troy, Esq. of the firm Troy Law, PLLC, a
damages calculation for each of the Plaintiffs, and Troy Law's time
records, and a purported "joint" memorandum of law, explaining why
they believe the proposed settlement agreement is fair, reasonable,
and adequate.
Judge Freeman has reviewed the Plaintiffs' submissions in order to
determine whether the Agreement represents a reasonable compromise
of the claims asserted in the action, and whether the proposed
attorneys' fees and costs are reasonable. Upon that review, and
after consideration of the submitted damages calculations, she
finds that the terms of the Agreement are generally fair,
reasonable, and adequate to redress the Plaintiffs' claims in the
action. Judge Freeman also finds, however, that the attorneys' fees
requested by the Plaintiffs' counsel ($692,006.78, representing
one-third of the gross settlement amount of $2,08 million, after
subtraction of claimed litigation expenses in the amount of
$3,979.65) are grossly excessive for a number of reasons and should
be reduced.
Judge Freeman says, a significant reduction of those fees is
warranted for two reasons. First, as laid out in an Order To Show
Cause issued by the Court on Feb. 11, 2021, and the Court's
subsequent Order of March 22, 2021 (by which the Court found Troy
Law inadequate to serve as Rule 23 class counsel in the action
either for purposes of settlement or trial), Troy Law has, over a
lengthy period of time, demonstrated "myriad performance issues" in
connection with its work on the matter.
Second, she finds utterly disingenuous Troy Law's invitation that
the Court relies on the firm's submitted lodestar calculation of
its fees as a "cross-check" for the supposed reasonableness of the
requested contingency fee. Accordingly, Judge Freeman will approve,
as reasonable attorneys' fees in the case, the lodestar amount of
$301,558.95, and not the higher amount requested by Troy Law.
As for the litigation expenses that the Plaintiffs' seek to
recover, Judge Freeman notes that Troy Law has merely submitted
billing records that itemize the Plaintiffs' costs, without
attaching receipts or invoices to document those costs, as it
should have done. As a finer point, she takes issue with the firm's
references, in its list of itemized expenses, to fees charged by a
"Neutral Court-Appointed CPA," given that the Court actually denied
the parties' application to "appoint" an accountant to assist them
in their settlement discussions.
Nonetheless, Judge Freeman notes that Troy has submitted a
declaration, made under penalty of perjury, in which he specifies
the amount of the Plaintiffs' litigation expenses, and, for
purposes of Cheeks review, she will accept this as a sufficient
evidentiary ground to support the amount sought. As she finds the
types and amounts of the itemized expenses to be reasonable, Judge
Freeman approves them as part of the parties' Agreement.
Accordingly, Judge Freeman approved the parties' Agreement as fair
and reasonable in all respects except for the amount of requested
attorneys' fees. As to the Plaintiffs' attorneys' fees, she only
approved, as reasonable, the lesser amount of $301,558.95. It is
her understanding, based on the express terms of the parties'
Agreement, that they anticipated that the Court might only approve
a lesser amount of fees than those sought, and that they agreed to
accept any such lesser amount, without the need to renegotiate the
overall Agreement.
Judge Freeman noted that, although the parties have not explicitly
requested that the Court retains jurisdiction over the action for
the purpose of enforcing their agreement, they have submitted a
proposed Stipulation and Order of Dismissal With Prejudice which
states that the Court will retain jurisdiction for that purpose. In
light of this, and in order to effectuate the evident intent of the
parties, the Court will retain jurisdiction over this matter for
the sole purpose of enforcing the settlement agreement.
As a result of the Court's approval of the parties' executed
settlement Agreement (with a lesser amount of fees that, by the
parties' express stipulation, does not render the Agreement
unenforceable), the action is discontinued in its entirety, with
prejudice, without costs or fees to any party, except as set forth
therein. The Clerk of Court is directed to close the case on the
Docket of the Court.
A full-text copy of the Court's Dec. 29, 2021 Order is available at
https://tinyurl.com/2p8tsf86 from Leagle.com.
PROCTER & GAMBLE: Labella Sues Over Benzene in Deodorant Products
-----------------------------------------------------------------
LINDSEY LABELLA, Individually and on Behalf of All Others Similarly
Situated v. THE PROCTER & GAMBLE COMPANY, Case No. 3:21-cv-216
(W.D. Pa., Dec. 17, 2021) arises from the Defendant's manufacture,
marketing, formulation, and distribution of P&G antiperspirant
and/or deodorant products that are defective because they contain
benzene.
According to the complaint, the products are defective because each
contains significant amounts of the chemical benzene, a known human
carcinogen that offers no therapeutic deodorant or antiperspirant
benefit; yet despite the presence of benzene, P&G represents that
the products are safe and effective for their intended use. At the
time of their purchases, P&G did not notify Plaintiff and similarly
situated consumers of the products' benzene contamination through
its product labels, the ingredients list, other packaging,
advertising, or in any other manner, in violation of state and
federal law.
Defendant Procter & Gamble Company is a multinational company that
has been incorporated under the laws of the State of Ohio since
1905. Its corporate headquarters are located at 6280 Center Hill
Ave Cincinnati, OH. P&G manufactures, distributes, markets and/or
sells personal care products nationwide. [BN]
The Plaintiff is represented by:
Gary F. Lynch, Esq.
Kelly K. Iverson, Esq.
LYNCH CARPENTER LLP
1133 Penn Avenue
Floor 5
Pittsburgh, PA 15222
Telephone: (412) 322-9243
E-mail: gary@lcllp.com
kelly@lcllp.com
- and -
Katrina Carroll, Esq.
LYNCH CARPENTER LLP
111 W. Washington Street
Suite 1250
Chicago, IL 60602
Telephone: (312) 750-1265
E-mail: katrina@lcllp.com
- and -
Jonathan M. Jagher, Esq.
FREED KANNER LONDON
& MILLEN LLC
923 Fayette Street
Conshohocken, PA 19428
Telephone: (610) 234-6487
E-mail: jjagher@fklmlaw.com
- and -
Jonathan Shub, Esq.
SHUB LAW FIRM LLC
134 Kings Highway E., 2nd Floor
Haddonfield, NJ 08033
Telephone: (856) 772-7200
E-mail: jshub@shublawyers.com
PROCTER & GAMBLE: Sued for Selling Benzene-Containing Products
--------------------------------------------------------------
PATRICIA KELLEY, JEREMY WILSON, DANTE MELENDEZ, and DARRELL
STEWART, on behalf of themselves and a class of all others
similarly situated v. THE PROCTER & GAMBLE COMPANY, Case No.
1:21-CV-785 (S.D. Ohio, Dec. 17, 2021) is brought against the
Defendant regarding the manufacture, distribution, and sale of its
Old Spice and Secret spray-on antiperspirant and deodorant products
that contain benzene, a known human carcinogen.
According to the complaint, the presence of benzene in the affected
products is not disclosed on the affected products' labels. In
fact, P&G states on its website that it does not use benzene in its
products. Therefore, Plaintiffs, by use of reasonable care, could
not have discovered that the products were contaminated with
benzene. Plaintiffs and Class members purchased the affected
products with the expectation that the products were safe,
including free of carcinogens. Because Defendant sold products to
consumers that contain dangerous levels of benzene, Plaintiffs and
the Classes were deprived of the benefit of their bargain, asserts
the complaint.
Defendant P&G is an Ohio corporation with its principal place of
business and headquarters located at One Procter & Gamble Plaza in
Cincinnati, Ohio. [BN]
The Plaintiffs are represented by:
Joseph J. Braun, Esq.
Richard S. Wayne, Esq.
Jeffrey A. Levine, Esq.
STRAUSS TROY
150 E. 4th Street, 4th Floor
Cincinnati, OH 45202
Telephone: 513-621-2120
Facsimile: 513-241-8259
Email: jjbraun@strausstroy.com
rswayne@strausstroy.com
jalevine@strausstroy.com
- and -
Daniel A. Osborn, Esq.
OSBORN LAW PC
43 West 43rd Street, Suite 131
New York, NY 10036
Telephone: 212-725-9800
Facsimile: 212-725-9808
Email: dosborn@osbornlawpc.com
PUMA BIOTECH: Fairness Hrg. on $54.2MM Settlement Set for April 11
------------------------------------------------------------------
Robbins Geller Rudman & Dowd LLP issued a statement regarding the
Puma Biotechnology, Inc. Securities Settlement:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION
HSINGCHING HSU, INDIVIDUALLY AND
ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED,
PLAINTIFF,
VS.
PUMA BIOTECHNOLOGY, INC., ET AL.,
DEFENDANTS.
Case No. 8:15-cv-00865-AG-SHK
CLASS ACTION
Notice of class action settlement
You are hereby notified, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and Order of the United States District Court
for the Central District of California, that a Settlement has been
proposed in the above-captioned action. You can identify if your
claim has been validated and the amount of your damages and
prejudgment interest at the website listed below. If you have
submitted a validated claim, you do not need to do anything
in order to receive your share of the settlement.
The parties have agreed to a proposed settlement of the litigation
for $54,248,374.00 (the "Settlement Amount"). The Settlement Amount
represents the complete amount of claimed damages and prejudgment
interest due to validated claims under the jury verdict. If
approved, the settlement will finally resolve all claims in the
litigation. Based on your previously submitted claim form and the
damages calculations performed by the Claims Administrator, you
will receive 100% of your damages and prejudgment interest less:
(i) your pro rata share of any Court-awarded attorneys' fees and
litigation expenses and any Court award to the Lead Plaintiff; (ii)
settlement administration expenses; and (iii) taxes and tax
expenses. Class Counsel have prosecuted this case on a wholly
contingent basis and will apply to the Court for: (i) an award of
attorneys' fees of 25% of the Settlement Amount; (ii) payment of
litigation expenses paid or incurred by Class Counsel in an amount
not to exceed $3,100,000; and (iii) an award to Lead Plaintiff in
an amount not to exceed $100,000, pursuant to 15 U.S.C. Sec.
78u-4(a)(4). The requested attorneys' fees and expenses represent
approximately $1.33 per share.
You have the right to object to the application for Class Counsel's
fees or expenses and/or the application for the Lead Plaintiff
award. Any objection is due by March 21, 2022. For more information
on filing an objection, please go to the website listed below.
A Settlement Hearing is scheduled for April 11, 2022, at 8:00 a.m.,
at the United States District Court for the Central District of
California, Ronald Reagan Federal Building and U.S. Courthouse, 411
West Fourth Street, Courtroom 9d, Santa Ana, CA. 92701 for the
purpose of determining, among other things, (i) whether the
Settlement and Plan of Allocation are fair, reasonable, and
adequate, and should be approved; and (ii) to consider the
application of Lead Counsel for an award of attorneys' fees and
expenses, and any application for an award to Lead Plaintiff.
If you have any questions, you can contact Class Counsel,
Tor Gronborg, at 1-619-231-1058 or visit:
www.pumabiosecuritieslitigation.com
REDWIRE CORP: Rosen Law Firm Reminds of February 15 Deadline
------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, reminds
purchasers of the securities of Redwire Corp. f/k/a Genesis Park
Acquisition Corp. (NYSE: RDW, RDW.WS GNPK, GNPK.WS) between August
11, 2021 and November 14, 2021, inclusive (the "Class Period") of
the important February 15, 2022 lead plaintiff deadline.
SO WHAT: If you purchased Redwire securities during the Class
Period you may be entitled to compensation without payment of any
out of pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the Redwire class action, go to
http://www.rosenlegal.com/cases-register-2214.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than February 15, 2022.
A lead plaintiff is a representative party acting on behalf of
other class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources, or
any meaningful peer recognition. Many of these firms do not
actually litigate securities class actions. Be wise in selecting
counsel. The Rosen Law Firm represents investors throughout the
globe, concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) there were accounting issues at
one of Redwire's subunits; (2) as a result, there were additional
material weaknesses in Redwire's internal control over financial
reporting; and (3) as a result of the foregoing, defendants'
positive statements about Redwire's business, operations, and
prospects were materially misleading and/or lacked a reasonable
basis. When the true details entered the market, the lawsuit claims
that investors suffered damages.
To join the Redwire class action, go to
http://www.rosenlegal.com/cases-register-2214.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
REVANCE THERAPEUTICS: Kessler Topaz Reminds of Feb. 8 Deadline
--------------------------------------------------------------
The law firm of Kessler Topaz Meltzer & Check, LLP informs
investors that a securities class action lawsuit has been filed in
the United States District Court for the Northern District of
California against Revance Therapeutics, Inc. ("Revance") (NASDAQ:
RVNC). The action charges Revance with violations of the federal
securities laws, including omissions and fraudulent
misrepresentations relating to the company's business, operations,
and prospects. As a result of Revance's materially misleading
statements to the public, Revance investors have suffered
significant losses.
LEAD PLAINTIFF DEADLINE: February 8, 2022
CLASS PERIOD: November 25, 2019 through October 11, 2021
CONTACT AN ATTORNEY TO DISCUSS YOUR RIGHTS:
James Maro, Esq. (484) 270-1453 or Toll Free (844) 887-9500 or
Email at info@ktmc.com
REVANCE'S ALLEGED MISCONDUCT
Revance is a biotechnology company that engages in the development,
manufacture, and commercialization of neuromodulators for various
aesthetic and therapeutic indications. Revance's lead drug
candidate is DaxibotulinumtoxinA for injection ("DAXI"), which has
completed Phase III clinical trials for the treatment of glabellar
(frown) lines and cervical dystonia.
On November 25, 2019, Revance issued a press release announcing
that it had submitted a Biologics License Application ("BLA") to
the FDA for DAXI. Then, on October 12, 2021, Revance issued a press
release revealing that on July 2, 2021, the FDA had issued a Form
483 informing Revance of serious concerns it had discovered while
inspecting one of Revance's manufacturing facilities. Among other
things, the Form 483 indicated that "[t]he current manufacturing
process is not the process proposed for licensure," and "[t]he
firm's Quality Unit lacks the responsibility and authority for the
control, review, and approval of outsourced activities which
includes defining the responsibilities and communication processes
for quality-related activities in a written agreement." Following
this news, Revance's stock price fell $6.85 per share, or 25%, to
close at $20.45 per share on October 12, 2021.
Then, on October 15, 2021, Revance issued another press release
disclosing that "[i]n a communication received on October 15,
[2021,] the FDA has determined it is unable to approve the BLA in
its present form, and indicated that there are deficiencies related
to the FDA's onsite inspection at Revance's manufacturing
facility." Following this news, Revance's stock price fell $8.90
per share, or 39.19%, to close at $13.81 per share on October 18,
2021.
WHAT CAN I DO?
Revance investors may, no later than February 8, 2022, seek to be
appointed as a lead plaintiff representative of the class through
Kessler Topaz Meltzer & Check, LLP or other counsel, or may choose
to do nothing and remain an absent class member. Kessler Topaz
Meltzer & Check, LLP encourages Revance investors who have suffered
significant losses to contact the firm directly to acquire more
information.
CLICK HERE TO SIGN UP FOR THE CASE
WHO CAN BE A LEAD PLAINTIFF?
A lead plaintiff is a representative party who acts on behalf of
all class members in directing the litigation. The lead plaintiff
is usually the investor or small group of investors who have the
largest financial interest and who are also adequate and typical of
the proposed class of investors. The lead plaintiff selects counsel
to represent the lead plaintiff and the class and these attorneys,
if approved by the court, are lead or class counsel. Your ability
to share in any recovery is not affected by the decision of whether
or not to serve as a lead plaintiff.
ABOUT KESSLER TOPAZ MELTZER & CHECK, LLP
Kessler Topaz Meltzer & Check, LLP prosecutes class actions in
state and federal courts throughout the country and around the
world. The firm has developed a global reputation for excellence
and has recovered billions of dollars for victims of fraud and
other corporate misconduct. All of our work is driven by a common
goal: to protect investors, consumers, employees and others from
fraud, abuse, misconduct and negligence by businesses and
fiduciaries. At the end of the day, we have succeeded if the bad
guys pay up, and if you recover your assets. The complaint in this
action was not filed by Kessler Topaz Meltzer & Check, LLP. For
more information about Kessler Topaz Meltzer & Check, LLP please
visit www.ktmc.com.
CONTACT:
Kessler Topaz Meltzer & Check, LLP
James Maro, Jr., Esq.
280 King of Prussia Road
Radnor, PA 19087
(844) 887-9500 (toll free)
info@ktmc.com [GN]
REVANCE THERAPEUTICS: Rosen Law Firm Reminds of Feb. 8 Deadline
---------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, reminds
purchasers of the securities of Revance Therapeutics, Inc. (NASDAQ:
RVNC) between November 25, 2019 and October 11, 2021, inclusive
(the "Class Period"), of the important February 8, 2022 lead
plaintiff deadline.
SO WHAT: If you purchased Revance securities during the Class
Period you may be entitled to compensation without payment of any
out of pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the Revance class action, go to
http://www.rosenlegal.com/cases-register-2179.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than February 8, 2022.
A lead plaintiff is a representative party acting on behalf of
other class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Many of these firms do not actually
litigate securities class actions. Be wise in selecting counsel.
The Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) quality control deficiencies
existed at Revance's manufacturing facility for DaxibotulinumtoxinA
for injection ("DAXI"), the Company's lead drug candidate; (2) the
foregoing deficiencies decreased the likelihood that the U.S. Food
and Drug Administration ("FDA") would approve the DAXI Biologics
License Application ("BLA") in its current form; (3) accordingly,
it was unlikely that the DAXI BLA would obtain FDA approval within
the timeframe Revance had represented to investors; and (4) as a
result, defendants' public statements were materially false and
misleading at all relevant times. When the true details entered the
market, the lawsuit claims that investors suffered damages.
To join the Revance class action, go to
http://www.rosenlegal.com/cases-register-2179.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
ROBINHOOD MARKETS: Golubowski Files IPO-related Class Action
------------------------------------------------------------
PHILIP GOLUBOWSKI, Individually and on Behalf of All Others
Similarly Situated v. ROBINHOOD MARKETS, INC., VLADIMIR TENEV,
JASON WARNICK, BAIJU BHATT, JAN HAMMER, PAULA LOOP, JONATHAN
RUBENSTEIN, SCOTT SANDELL, ROBERT ZOELLICK, GOLDMAN SACHS & CO.
LLC, J.P. MORGAN SECURITIES LLC, BARCLAYS CAPITAL INC., WELLS FARGO
SECURITIES, LLC, MIZUHO SECURITIES USA LLC, JMP SECURITIES LLC,
KEYBANC CAPITAL MARKETS INC., PIPER SANDLER & CO., ROSENBLATT
SECURITIES INC., BMO CAPITAL MARKETS CORP., BTIG, LLC, SANTANDER
INVESTMENT SECURITIES INC., ACADEMY SECURITIES, INC., LOOP CAPITAL
MARKETS LLC, SAMUEL A. RAMIREZ & COMPANY, INC., and SIEBERT
WILLIAMS SHANK & CO., LLC, Case No. 5:21-cv-09767 (N.D. Cal., Dec.
17, 2021) is a federal action against Robinhood, certain of the
Company's senior executives and directors who signed the
Registration Statement, effective July 28, 2021, issued in
connection with the Company's initial public offering (IPO), and
the underwriters of the Offering. The Plaintiff seeks to recover
the damages suffered as a result of Defendants' violations of the
Securities Act.
The Plaintiff alleges that the Registration Statement and
Prospectus (filed with the SEC on July 1, 2021 and July 30, 2021,
respectively), including all amendments, contained materially
incorrect or misleading statements and/or omitted material
information that was required by law to be disclosed. Defendants
are each strictly liable for such misstatements and omissions
therefrom (subject only to their ability to establish a "due
diligence" affirmative defense) and as so liable in their
capacities as signers of the Registration Statement and/or as an
issuer, statutory seller, and/or offeror of the shares sold
pursuant to the Offering.
According to the complaint, the representations were materially
inaccurate, misleading, and/or incomplete because they failed to
disclose that, at the time of the IPO, Robinhood's revenue growth
was experiencing a major reversal, with transaction-based revenues
from cryptocurrency trading serving only as a short-term,
transitory injection, masking what was actually stagnating growth.
In addition, the Company's "significant investments" in enhancing
the reliability and scalability of its platform were patently
inadequate and/or defective, exposing Robinhood to worsening
service-level disruptions and security breaches, particularly as
the Company scaled its services to a larger user base. As these
true facts emerged after the Offering, the Company's shares fell
sharply. By the commencement of this action, Robinhood's shares
traded as low as $17.08 per share, representing a decline of over
55% from the Offering Price.
Plaintiff purchased shares of the Company's common stock that were
issued pursuant and traceable to the Registration Statement and
Offering.
Robinhood Markets, Inc. is a financial services company
headquartered in Menlo Park, California, known for pioneering
commission-free trades of stocks, exchange-traded funds and
cryptocurrencies via a mobile app. [BN]
The Plaintiff is represented by:
John T. Jasnoch, Esq.
Hal Cunningham, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
600 W. Broadway, Suite 3300
San Diego, CA 92101
Tel.: (619) 233-4565
E-mail:jjasnoch@scott-scott.com
hcunningham@scott-scott.com
- and -
Thomas L. Laughlin, IV, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
Tel.: (212) 233-6444
E-mail: tlaughlin@scott-scott.com
SANMEDICA INT'L: Can't Compel Subpoenas Compliance in Deibler Suit
------------------------------------------------------------------
In the case, HOLLY DEIBLER, et al., Plaintiff v. SANMEDICA
INTERNATIONAL, LLC, at al., Defendant, Civil No. 19-20155(NLH/MJS)
(D.N.J.), Magistrate Judge Matthew J. Skahill of the U.S. District
Court for the District of New Jersey issued an Opinion and Order:
a. denying without prejudice to refiling Defendant SanMedica's
Motion to Compel compliance with Rule 45 Subpoenas as to
Clarkson Law Firm, P.C. ("CLF") and Tycko & Zavareei, LLP
("TZ"); and
b. denying the Defendant's Motion to Compel as to Miller Shah
LLP ("MS").
Background
Plaintiff Deibler filed the putative class action on Nov. 13, 2019
challenging the efficacy, advertisement, and sale of SeroVital-Hgh,
a purported Human Growth Hormone supplement produced by the
Defendant. The Plaintiff and the putative class are represented by
MS, CLF, and TZ.
In connection with the action, the Defendant issued subpoenas to
the Plaintiff's Counsel on Nov. 30, 2020, to which the Plaintiff's
Counsel objected. Following a conference call with the Court on
April 12, 2021, the Defendant emailed revised, narrowed subpoenas
to the Plaintiff on April 15, 2021 and again on April 29, 2021.
These iterations of the subpoenas requested the Plaintiff's Counsel
to provide the following: "All Court Orders that either (1) approve
or appoint as class counsel in any class action case any of the
attorneys who are currently counsel of record for plaintiff in the
matter captioned Holly Deibler v. SanMedica International, LLC,
Civil Action No. 1:19cv-20155, United States District Court,
District of New Jersey (the Deibler Matter), or (2) refuse to
approve, or otherwise deny motions to approve, as class counsel any
of the attorneys who are currently counsel of record for plaintiff
in the Deibler Matter."
On May 13, 2021, the Plaintiff's Counsel again served objections,
stating they would not comply with the subpoenas. Specifically, the
Plaintiff's Counsel objected to the subpoenas as (1) overly broad
and seeking materials not relevant to any party's claims or
defenses and having no bearing upon the Plaintiff's Counsel's
adequacy to serve as class counsel, (2) not limited in temporal
scope, (3) unduly burdensome, and (4) requesting information
available to the public and the Defendant.
Discussion
The Court is tasked with determining whether the Defendant's
subpoena seeks relevant and proportional information within the
frameworks of Rules 45 and 26 such that compelled disclosure should
be ordered. However, first, it must address a potential
jurisdictional issue concerning two of the three subpoenas.
On April 15, 2021, following an April 12, 2021 conference call with
the Court, the Defendant served notices of subpoenas and subpoenas
duces tecum to MS, CLF and TZ, which required production in the
District of New Jersey. Thereafter, the Plaintiff's counsel served
objections to the April 15, 2021 subpoenas. One of the objections
-- that the subpoenas required production more than 100 miles from
the offices of the Plaintiff's counsel -- was not addressed during
the call. In response, the Defendant served new, updated
subpoenas.
Accordingly, the operative subpoenas in question are those
identified at Exhibit F to Mr. Price's Declaration, two of which
call for production in California (CLF and TZ), and one in the
District of New Jersey (MS). Prior to addressing the merits of the
Motion, as to the CLF and TZ subpoenas, the Court requests that the
parties address whether the Motion as presented for those subpoenas
is now properly before the Court.
Upon consideration, Judge Skahill finds that the burden and
potential harm occasioned by compliance would outweigh the ordinary
presumption in favor of broad disclosure. Moreover, he finds that
the material sought are orders, that by their very nature, are
publicly available to the Defendant.
Indeed, while the Defendant contends that the orders are easier for
the Plaintiff's Counsel to obtain than it would be for the
Defendant to search public records, the fact remains that this is
not information uniquely available to the Plaintiff. Taking into
account the marginal relevance of the records and the burden on MS
to compile the records, Judge Skahill agrees with the Court's
decision in Pizana v. Sanmedica Int'l, LLC, No. 118CV00644, 2021 WL
1060440, at *5 (E.D. Cal. Mar. 18, 2021), namely, if the Defendant
believes that it needs these records, the "Defendant can conduct a
public record search for orders and related filings on PACER, Lexis
Nexis, Westlaw, and other legal resources to obtain the documents
it is seeking."
Because the Court can resolve the dispute employing the basic
proportionality standard under Rule 26(b)(1), it is unnecessary to
determine whether the Defendant's subpoena should be subject to
heightened scrutiny.
Conclusion
For the foregoing reasons, Judge Skahill denied Defendant
Sanmedica's Motion to Compel served on MS. He denied without
prejudice the Motion, as it relates to the subpoenas served on CLF
and TZ. The Defendant, after conferring with the Plaintiff, will
have 30 days from the entry of the Order to refile any motion
further addressing the jurisdictional issue raised by the Court
therein.
A full-text copy of the Court's Dec. 29, 2021 Opinion & Order is
available at https://tinyurl.com/k86m6cab from Leagle.com.
STATE FARM: Sisia Class Suit Dismissed with Prejudice
-----------------------------------------------------
In the class action lawsuit captioned as KIMBERLY K SISIA,
individually and on behalf of others similarly situated, v. STATE
FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Case No.
1:21-cv-02376-ELR (N.D. Ga.), the Hon. Judge Eleanor L. Ross
entered an order granting the Defendant's motion to dismiss the
complaint and dismissing with prejudice the action.
Additionally, the Court denies as mot Plaintiff's "Motion for
Conditional Class Certification." Finally, the Court directs the
Clerk to close this case.
On May 19, 2009, the Plaintiff sustained injuries in an automobile
accident when the vehicle she was driving was struck in the rear by
another vehicle in Fulton County.
At the time of the May, 2009 rear end collision, the Plaintiff was
insured under State Farm Automobile Policy No. 847288-F-26-11E (the
"Policy").
The medical payments section of this Policy specifically excluded
thermography and several other generalized procedures which were
not specifically identified by State Farm in the Policy.
State Farm has filed a motion to dismiss Plaintiff's complaint
pursuant to Fed. R. Civ. P. 12(b)(6) which is pending.
A copy of the Court's order dated Jan. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3GeilCi at no extra charge.[CC]
The Plaintiff is represented by:
James L. Ford, Sr.
JAMES LEE FORD, P.C.
2957 Hardman Court, N.E.
Atlanta, GA 30305
Telephone: (678) 281-8750
E-mail: jldf@jlfordlaw.com
The Defendant is represented by:
Daniel F. Diffley, Esq.
Melissa G. Quintana, Esq.
ALSTON & BIRD LLP
1201 W. Peachtree Street
Atlanta, GA 30309
E-mail: Dan.diffley@alston.com
Melissa.quintana@alston.com
STONECO LTD: Rosen Law Firm Reminds of January 18 Deadline
----------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, reminds
purchasers of the securities of StoneCo Ltd. (NASDAQ: STNE) between
March 11, 2021 and November 16, 2021, inclusive (the "Class
Period"), of the important January 18, 2022 lead plaintiff
deadline.
SO WHAT: If you purchased StoneCo securities during the Class
Period you may be entitled to compensation without payment of any
out of pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the StoneCo class action, go to
http://www.rosenlegal.com/cases-register-2203.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than January 18, 2022.
A lead plaintiff is a representative party acting on behalf of
other class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Many of these firms do not actually
litigate securities class actions. Be wise in selecting counsel.
The Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) StoneCo was experiencing
difficulties in implementing its credit product; (2) StoneCo faced
significant risks via its point-of-sale vendor, PAX Global
Technology Ltd.; (3) as a result of the foregoing, StoneCo's
financial results would be adversely impacted; and (4) as a result
of the foregoing, defendants' positive statements about the
Company's business, operations, and prospects were materially
misleading and/or lacked a reasonable basis. When the true details
entered the market, the lawsuit claims that investors suffered
damages.
To join the StoneCo class action, go to
http://www.rosenlegal.com/cases-register-2203.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
STORAGEPRO MGMT: Denial of Arbitration Bid in Faacks Suit Affirmed
------------------------------------------------------------------
In the case, CHER LEE FAACKS, Plaintiff and Respondent v.
STORAGEPRO MANAGEMENT CO., Defendant and Appellant, Case No.
C092404 (Cal. App.), the Court of Appeals of California for the
Third District, Nevada, affirmed the trial court's order denying
the Defendant's motion to compel arbitration.
Plaintiff Cher Lee Faacks brought this putative class action
against her former employer, defendant StoragePro Management
Company, alleging various wage and hour claims and a derivative
claim under the unfair competition law (UCL) (Bus. & Prof. Code,
Section 17200, et seq.). All of the Plaintiff's claims except for
her UCL claim were ultimately eliminated; the trial court
subsequently denied the Defendant's motion to compel arbitration of
that claim. The Defendant appealed from that order.
Factual Background
The Defendant is a California corporation that transacts business
in California. The Plaintiff was employed by the Defendant as a
non-exempt employee in Nevada County from August 2018 to September
2018. The appellate record does not disclose the Plaintiff's
position with the Defendant or any details about its business.
As a condition of employment, the Plaintiff and the Defendant
executed a mediation and arbitration agreement drafted entirely by
the Defendant. It stated: "Please understand that by signing this
agreement, and except for those matters excluded, the Employee and
Company waive any right that, it, he, or she may possess to have
employment-related disputes litigated in a court or by jury
trial."
The arbitration agreement included a provision identifying the
specific types of claims that are subject to arbitration and are
excluded.
Procedural Background
In September 2019, the Plaintiff filed a class action complaint
against defendant, alleging six wage and hour claims (e.g., failure
to pay wages, failure to reimburse business expenses) and a
derivative claim under the unlawful business practice prong of the
UCL. A first amended class action complaint was filed in November
2019. It only alleged two claims for relief. The first, brought
under the UCL, sought equitable relief (injunction and restitution
-- i.e., restoration of money unlawfully withheld) for unfair
competition based on the Defendant's violation of wage and hour
laws. The second, brought under the Labor Code Private Attorneys
General Act of 2004 (PAGA) (Lab. Code, Section 2698 et seq.),
sought penalties for the same wage and hour violations.
After the Plaintiff voluntarily dismissed her PAGA claim, the trial
court denied the Defendant's motion to compel arbitration of her
UCL claim. In doing so, the trial court concluded that the express
terms of the arbitration agreement excluded unfair competition
claims from arbitration.
The Defendant timely appealed. The case was fully briefed on Oct.
22, 2021, and assigned to the panel one week later.
Analysis
The Defendant contends the trial court erred in denying its motion
to compel arbitration. It argues that the Plaintiff's UCL claim
falls within the scope of the arbitration agreement. The Court of
Appeals sees no error.
In this particular case, the Court of Appeals opines that the plain
text of the agreement excludes, without limitation, equitable
unfair competition claims from arbitration. The agreement
specifically states that it "does not apply to or cover claims for
injunctive and/or other equitable relief for unfair competition."
In determining the scope of the parties' arbitration agreement, the
ordinary and popular sense of the agreement's language governs,
unless the parties expressed a contrary intent. Thus, based on the
clear and explicit language of the agreement, the Plaintiff's UCL
claim is not subject to arbitration.
The Court of Appeals further opines that the arbitration agreement
cannot be interpreted as narrowly as the Defendant urges. Had the
parties intended to limit the exclusion of unfair competition
claims from arbitration in the manner defendant suggests, they
could have easily done so. The relevant portion of the parties'
agreement broadly excludes from arbitration certain types of claims
for "injunctive and/or other equitable relief," including all such
claims for unfair competition. There is no language limiting the
exclusion of equitable unfair competition claims from arbitration.
The Court of Appeals also rejects the Defendant's somewhat related
contention that the Plaintiff's UCL claim is arbitrable because the
"unfair competition" referred to in the arbitration agreement is
limited to the common law tort of unfair competition and does not
include statutory unfair competition claims under the UCL. The
common law tort of unfair competition has long been recognized in
California. The Defendant's narrow interpretation of the
arbitration agreement is inconsistent with the broad language of
the exclusion provision, which excludes from arbitration, without
limitation, equitable claims for unfair competition. The Defendant
could have drafted a provision that specifically limited the
exclusion of unfair competition claims to only such claims based on
the common law tort of unfair competition.
Finally, the Court of Appeals finds no merit in the Defendant's
contention that the Plaintiff's UCL claim is arbitrable because it
is essentially a claim for wages or other compensation due, which
is a type of claim expressly covered by the arbitration agreement.
It opines that the fatal flaw in this argument is that equitable
unfair competition claims are excluded from coverage under the
express terms of the agreement, and a UCL claim predicated on a
violation of wage and hour laws is a separate equitable claim that
is independently actionable and subject to distinct remedies than
those available under the Labor Code. The Defendant offers no
authority or reasoned argument persuading the Court of Appeals that
a contrary result is warranted.
Disposition
The trial court's order denying the Defendant's motion to compel
arbitration is affirmed. The Plaintiff will recover her costs on
appeal.
A full-text copy of the Court's Dec. 29, 2021 Opinion is available
at https://tinyurl.com/2p8s5z7k from Leagle.com.
SURNAIK HOLDINGS: Warehouse Fire Suit Goes to State Supreme Court
-----------------------------------------------------------------
Matt Harvey, writing for The State Journal, reports that a special
judge's decision to certify a class action lawsuit in an October
2017 Wood County warehouse fire that burned for eight days will be
before the state Supreme Court again this week.
The justices in November 2020 shot down Harrison County Chief Judge
Thomas A. Bedell's certification of the class against warehouse
owner Surnaik Holdings of WV LLC and sent the case back to him on a
remand. By mid-June, Bedell had held additional proceedings and
certified the class action again.
The attorneys for Surnaik Holdings on July 30 filed a petition for
writ of prohibition with the state Supreme Court, asking the
justices to nix the class action ruling for a second time.
If certified, the class would involve individuals from Parkersburg,
Vienna, Blennerhasset, Lubeck, Washington and Waverly, as well as
from Belpre, Ohio. The fire sent up a billowing cloud of black
smoke that was visible as far away in Ohio.
The case is set for Rule 19 arguments on Wednesday, Jan. 12. It is
docketed as the final case of the day.
The petition for writ of prohibition was filed by Ryan Donovan, Zac
Ritchie and Andrew Robey of Hissam Forman Donovan Ritchie PLLC in
Charleston.
"If this brief seems familiar, that's because it is. In 2020, this
Court vacated and remanded an order from the same Circuit Court
certifying the same class. State ex rel. Surnaik Holdings of WV,
LLC v. Bedell, 244 W. Va. 248, 852 S.E.2d 748, 750 (2020) ("Surnaik
l')," the attorneys wrote.
"Specifically, this Court instructed the Circuit Court to conduct a
more 'thorough analysis' of the class certification requirements,
and in doing so, to bring West Virginia's Rule 23 into close
conformity with its federal counterpart. Just a few months later,
on the same evidence, and for the same reasons, the Circuit Court
ignored this Court's instructions and certified the same class
again," they wrote.
"The Plaintiffs 40-page proposed order -- which the Circuit Court
entered without modification -- contained more words, but no more
meaningful analysis than before. Indeed, the same flaws that
plagued the first certification persist," the attorneys wrote.
"According the Plaintiffs own expert, as many as 90% of the
proposed class members suffered no injury at all. Likewise, the
Plaintiff concedes that neither liability nor damages can be proven
through common evidence on a class-wide basis. And the Plaintiff
has no concrete plan for even identifying who the class members
are. In short, nothing has changed. Plaintiff did not offer any
additional evidence or expert testimony, nor did he revise the
class definition or trial plan to account for the infirmities this
Court identified the first time around. He simply recasts the same
claims and arguments from Surnaik I and hopes the Court will
confuse verbosity for substantive analysis. For these reasons and
others discussed herein, Surnaik 1 Holdings of WV, LLC ('Surnaik')
is entitled to a writ prohibiting enforcement of the Circuit
Court's order granting class certification," the attorneys wrote.
The plaintiff attorneys are Alexander McLaughlin and John Skaggs of
Calwell Luce diTraano PLLC in Charleston; Van Bunch of Bonnett
Fairbourn Friedman & Balint PC of Phoenix; and Michael Jacks of
Jacks Legal Group PLLC, Morgantown.
They countered that the Surnaik attorneys' petition for writ of
prohibition "begins with a moment of candor when Sumaik admits that
it has filed this brief before. In fact, the Petition presents
nearly verbatim a litany of successive failed arguments and strays
from the issues at hand involving Rule 23 of the West Virginia
Rules of Civil Procedure ('W.Va. R. Civ. P.'), delving into
questions of whether Plaintiff and the Class are likely to win
their case on the merits."
"Surnaik is right about one thing -- this Court should be familiar
with this case and the class certification issues presented.
Undoubtedly, the Court will be most interested to know whether the
Circuit Court followed and adhered to its Order of Remand," the
plaintiff attorneys wrote. "The answer is clear -- it did just
that. Respondent believes a Summary Response is appropriate which
focuses on the key points made by this Court when remanding the
matter. See State ex rel. Surnaik Holdings of WV, LLC v. Bedell,
244 W. Va. 248,852 S.E.2d 748 (2020) ('SurnaikI')."
Bedell conducted a thorough analysis, as he conducted multiple
tests to see if the case merited class action status, the plaintiff
attorneys said.
That included hearing from the plaintiff that his house was
smoke-filled throughout the duration of the fire, and that the man
and his wife had to wear special masks in their home during that
time. The man also testified that "he developed asthma as a result
of breathing smoke from the fire, the plaintiff attorneys
asserted.
"Ordinary relaxation at home was impossible, and during the entire
fire disaster Plaintiff and his wife tried to stay away from their
own home, and sometimes just drove off and went anyplace to get
away from the smoke," they asserted," they asserted.
"The circuit court found that if the jury believed Plaintiffs
testimony, it would be a ''textbook example' of an invasion of
property resulting in actionable loss of use, making Plaintiff a
typical class representative with respect to his damages claims,"
they wrote.
"This Court has recently explained that a plaintiff's claim is
'typical if it arises from the same event or practice or course of
conduct that gives rise to the claims of other class members, and
if his or her claims are based on the same legal theory.' State of
West Virginia ex rel. Municipal Water Works v. Swope, 242 W. Va.
258 at Syl. pt. 8 (2019)," they wrote.
"Following this standard, the circuit court confronted one of
Surnaik's arguments and noted that while there was evidence that
other class members had visible ash deposits on surfaces following
the fire, and while there was no testimony suggesting that
Plaintiff had such deposits, this was merely a factual variation
that did not defeat typicality under this Court's precedents --
particularly given the extensive evidence of Plaintiff's actual
loss of use and enjoyment. . . . Sumaik's insistence that Plaintiff
is not a typical class member on these grounds, repeated here in
the Petition, is misguided," they wrote.
Whether a court certifies a class action or not often is the first
key indicator as to whether a case will be settled. [GN]
TEAM NEXT LEVEL: Fails to Properly Compensate Delivery Drivers
--------------------------------------------------------------
Jamie Hulse, On behalf of herself and those similarly situated v.
Team Next Level, Inc.; John Hall, II; Doe Corporation 1-10; John
Doe 1-10, Case No. 21-cv-00546-CVE-JFJ (N.D. Okla., Dec. 17, 2021)
seeks appropriate monetary, declaratory, and equitable relief based
on Defendants' willful failure to compensate Plaintiff and
similarly-situated individuals with minimum wages as required by
the Fair Labor Standards Act (FLSA), the Oklahoma Minimum Wage Act,
and the Oklahoma Protection of Labor Act.
Plaintiff worked as a delivery driver at Defendants' Domino's store
in Claremore, Oklahoma from June 2020 to September 2021 and then
switched to Defendants Domino's store in Pryor, Oklahoma and has
been there since September of 2021.
The complaint alleges that Defendants require delivery drivers to
maintain and pay for operable cellphones to use in delivering
Defendants' pizza and other food items. Defendants also require
delivery drivers to incur and/or pay job-related expenses,
including but not limited to automobile costs and depreciation,
gasoline expenses, automobile maintenance and parts, insurance,
financing charges, licensing and registration costs, cellphone
costs, GPS charges, and other equipment necessary for delivery
drivers to complete their job duties. Because Defendants paid their
drivers a gross hourly wage at precisely, or at least very close
to, the applicable minimum wage, and because the delivery drivers
incurred unreimbursed automobile expenses, the delivery drivers
"kicked back" to Defendants an amount sufficient to cause minimum
wage violations, asserts the complaint. [BN]
The Plaintiff is represented by:
Jeffrey A. Taylor, Esq.
JEFFREY A. TAYLOR, P.C.
5613 North Classen Boulevard
Oklahoma City, OK 73 118
Telephone: (405) 286-1600
Facsimile: (405) 842-6132
E-mail: taylorjeff@mac.com
- and -
Andrew R. Biller, Esq.
Andrew P. Kimble, Esq.
Riley E. Kane, Esq.
BILLER & KIMBLE, LLC
8044 Montgomery Road, Suite 515
Cincinnati, OH 45236
Telephone: (513) 715-8711
Facsimile: (614) 340-4620
E-mail: abiller@billerkimble.com
akimble@billerkimble.com
rkane@billerkimble.com
TREATMENT ASSESSMENT: Loses Bid for Summary Judgment in Briggs Suit
-------------------------------------------------------------------
In the case, Deshawn Briggs, et al., Plaintiffs v. Treatment
Assessment Screening Center Incorporated, Defendant, Case No.
CV-18-02684-PHX-EJM (D. Ariz.), Magistrate Judge Eric J. Markowich
of the U.S. District Court for the District of Arizona denied the
Defendant's Motion for Summary Judgment.
Background
Named Plaintiffs Antonio Pascale, Deshawn Briggs, and Lucia Soria
filed the class action lawsuit on behalf of themselves and other
similarly situated individuals against Defendants Maricopa County,
Allister Adel in her official capacity as Maricopa County Attorney,
and Treatment Assessment Screening Center, Inc. ("TASC"). On joint
motion by the parties, the County Defendants were dismissed with
prejudice and the Plaintiffs are now proceeding against TASC as the
sole Defendant in the action.
The Plaintiffs filed their second amended complaint ("SAC") on
Sept. 23, 2019. They allege claims under Section 1983 on behalf of
themselves and other similarly situated individuals for
wealth-based discrimination in violation of their Fourteenth
Amendment rights (Count One) and unreasonable search and seizure in
violation of their Fourth and Fourteenth Amendment rights (Count
Four) and seek compensatory and punitive damages. The SAC also
alleges wealth-based discrimination and unreasonable search and
seizure claims for injunctive relief (Counts Two and Five).
TASC conducted the Marijuana Deferred Prosecution Program ("MDPP")
the Plaintiffs were enrolled in. The Plaintiffs allege that TASC
subjected them to "longer terms of diversion supervision while
under the threat of felony prosecution solely because of their
inability to pay fees associated with the program." They further
allege that TASC required urinalysis testing for individuals who
remained on the diversion program "solely because they were unable
to pay the required fees."
On March 10, 2021, TASC filed its motion for summary judgment on
the Plaintiffs' remaining claims. TASC contends that summary
judgment is appropriate because the named Plaintiffs cannot
establish that they were unable to pay the MDPP fees. It further
argues that because the individually named Plaintiffs' claims fail,
Plaintiffs lack standing to represent a class. Finally, because
TASC has ceased operations, TASC asserts that the Plaintiffs lack
standing to seek claims for injunctive relief.
The Plaintiffs contend that TASC has improperly limited the issue
before the Court as to whether the named Plaintiffs could afford to
pay TASC's fees. However, they argue that the real issue is whether
TASC imposed consequences for non-payment without assessing whether
their non-payment was willful. The Plaintiffs further assert that
evaluating credibility and assessing efforts to pay or borrow money
are questions of fact for the jury that cannot be resolved on
summary judgment. They concede that their claims for injunctive
relief are moot. Accordingly, Judge Markowich will dismiss counts
two and five of the SAC.
All appropriate responses and replies have been filed, and the
Court heard oral arguments from the parties on Dec. 2, 2021.
Discussion
TASC focuses its motion primarily on arguing that none of the named
Plaintiffs can establish that they were unable to pay the MDPP
fees. There is no dispute that the named Plaintiffs were poor. How
poor, and their resultant ability to pay TASC's fees, is a material
dispute of fact that is up to the jury to resolve. While the
parties argue extensively in the pleadings as to what assets and
resources the named Plaintiffs had and whether their expenditures
were reasonable, this only serves to reinforce how highly disputed
this issue is. TASC's emphasis on the Plaintiffs' alleged ability
to pay skirts the real issue before the Court -- whether TASC
wrongly extended individuals on diversion for non-payment without
first making a sufficient inquiry into their ability to pay,
determining whether the Plaintiffs made bona fide efforts to pay,
and offering financial assistance or fee waiver information when
appropriate.
In denying TASC's prior motion to dismiss, the Court found that the
"Plaintiffs have sufficiently pled a prima facie case of wealth
discrimination based on the policies that subject participants who
are unable to pay the program fee to a longer period of time in the
MDPP and all of the conditions that come along with it, including
the urine screenings and the required fees for those screenings,
and the ultimate possibility of being failed from the program and
referred for felony prosecution solely because they are unable to
pay the fees within 90 days."
Judge Markowich considered the Supreme Court's decision in Bearden
v. Georgia, 461 U.S. 660, 662 (1983), holding that that the trial
court erred in automatically revoking probation where a petitioner
could not pay his fine without first determining that the
petitioner had not made sufficient bona fide efforts to pay or that
there were no adequate alternate forms of punishment. He further
cited to State v. Jimenez, 111 N.M. 782, 784 (1991), where the
court extended Bearden to preprosecution diversion programs and
held that, "under the principles established in Bearden, the state
may terminate a diversion agreement, even if the sole ground is the
defendant's nonwilful failure to make restitution, but only if
there are no adequate alternatives to termination which will meet
the state's legitimate penological interests."
While TASC's motion largely ignores the Plaintiffs' Fourth
Amendment theory of liability by focusing on the Plaintiffs'
alleged failure to prove inability to afford TASC's fees, the
Plaintiffs argue that their "Fourth Amendment claims are not
contingent on inability to pay." However, Judge Markowich says it
is clear from the face of the SAC that the Plaintiffs only allege
claims for participants who were subjected to longer terms of
supervision "solely because of their inability to pay fees
associated with the program."
Judge Markowich further rejects the Plaintiffs' assertion that
inherent in the Court's ruling on TASC's motion to dismiss "was a
determination that TASC's Fourth Amendment liability is not
predicated solely on the Plaintiffs' ability to pay." He made no
such finding, and the SAC pleads no Fourth Amendment claims
separate from the claim that individuals who were extended on MDPP
solely because they were unable to pay TASC's fees were subjected
to urinalysis. He likewise rejects the Plaintiffs' argument that
their procedural due process claim encompasses both individuals who
could afford to pay TASC's fees as well as those who could not.
Accordingly, Judge Markowich finds that the Plaintiffs' claims in
Counts One and Four are limited to individuals who were extended on
the MDPP solely because they were unable to pay TASC's fees within
90 days. As the litigation of the matter continues, the Plaintiffs'
theory and evidence is limited to this class of individuals.
Conclusion
Accordingly, for the reasons he explained, Judge Markowich denied
TASC's Motion for Summary Judgment. He dismissed Counts Two and
Five of the Plaintiffs' SAC. He denied the Plaintiffs' Motion to
Strike. The contested exhibits are not unduly prejudicial to the
Plaintiffs and had no bearing on the Court's decision on TASC's
motion for summary judgment.
A full-text copy of the Court's Dec. 29, 2021 Order is available at
https://tinyurl.com/2p9cvua5 from Leagle.com.
UNITED STATES: 3rd Cir. Flips Dismissal of Morton v. Virgin Islands
-------------------------------------------------------------------
In the case, JAMAL MORTON, Appellant v. UNITED STATES VIRGIN
ISLANDS; ALBERT BRYAN, JR.; JOEL A. LEE; KIRK CALLWOOD, SR.;
CLARINA MODEST ELLIOT, Case No. 21-1292 (3d Cir.), the U.S. Court
of Appeals for the Third Circuit vacated the District Court's order
dismissing Morton's putative class action and remanded for further
proceedings consistent with its Opinion.
Background
Mr. Morton appeals the District Court's dismissal, on Article III
standing grounds, of his putative class action challenging the
Virgin Islands' refusal to issue COVID-19 stimulus payments to
incarcerated individuals.
The Coronavirus Aid, Relief, and Economic Security ("CARES") Act,
Pub. L. 116-136, 134 Stat. 281 (2020), provided emergency financial
assistance to Americans during the early days of the COVID-19
pandemic through what are commonly referred to as economic impact
payments ("EIPs"). EIPs are premised on a legal fiction that
individuals are entitled to refunds of taxes they never owed.
Scholl v. Mnuchin, 494 F.Supp.3d 661, 687 (N.D. Cal. 2020). The
CARES Act provides that EIPs are payable to "eligible individuals."
It is undisputed that Morton meets the statutory definition of an
"eligible individual."
Mr. Morton's action follows the relief granted to a class of
incarcerated individuals in Scholl v. Mnuchin. There, a federal
district court read the CARES Act's definition of "eligible
individual" as plainly including incarcerated individuals.
Accordingly, it enjoined the IRS from withholding EIPs from members
of the plaintiff class on the "sole basis of their incarcerated
status." The Scholl class included only incarcerated individuals
"in the United States," Scholl v. Mnuchin, No. 20-cv-05309, Dkt.
62, 2020 WL 5877674, at *7 (N.D. Cal. Oct. 2, 2020), which excludes
incarcerated individuals in the Virgin Islands.
Mr. Morton, who is incarcerated in the Virgin Islands, subsequently
sued the Virgin Islands and several of its government officials. He
alleged that the Virgin Islands shared the IRS's previous policy of
declining to issue EIPs to incarcerated individuals. Seeking a mix
of monetary and equitable relief on a class-wide basis, Morton
brought three causes of action: (1) a tax refund claim pursuant to
26 U.S.C. Section 7422; (2) a Fourteenth Amendment Equal Protection
claim pursuant to 42 U.S.C. Section 1983; and (3) a Virgin Islands
administrative procedure claim pursuant to 3 V.I.C. Section 911 et
seq.
Referring to language in the CARES Act that could be read to
suggest that filing a tax return is a prerequisite to obtaining an
EIP, 26 U.S.C. Section 6428(g)(2), Morton also alleged that filing
a tax return would have been futile in light of the Virgin Islands'
alleged policy of refusing to pay EIPs to incarcerated individuals.
His futility argument notwithstanding, Morton submitted a tax
return after filing his class complaint. Morton did not amend his
complaint to note that he had filed a tax return.
During the litigation, the Virgin Islands revealed that it did in
fact have a policy against paying EIPs to incarcerated individuals.
It later reversed course on its policy, representing to the
District Court that it would issue EIPs to all qualifying
individuals who had filed tax returns with the Virgin Islands, even
if they were incarcerated. The parties did not litigate Article III
mootness before the District Court. And further, the record does
not establish whether Morton received an EIP.
Even though the Virgin Islands conceded that it would have refused
to issue an EIP to Morton solely on the basis of his incarcerated
status, the District Court concluded that Morton lacked Article III
standing because he had not submitted a tax return before filing
suit. It did so because it read the CARES Act as requiring Morton
to file a tax return.
The District Court dismissed all three of Morton's claims on the
Virgin Islands' factual challenge to Morton's standing. Morton's
timely appeal followed.
Discussion
On appeal, the Virgin Islands argues that Morton's action is
non-justiciable: (a) because Morton lacked standing due to his
failure to file a tax return before suing, as the District Court
concluded, or (b) because his action is moot in light of the Virgin
Islands' decision to issue EIP to incarcerated individuals.
The Third Circuit disagrees. First, it holds that Morton had
standing to bring his claims. It says, Morton established injury in
fact for his claims because he demonstrated that the Virgin Islands
would have refused to issue him an EIP because of his status as an
incarcerated individual. That alone suffices for Morton's Equal
Protection claim, as "denial of equal treatment" itself is injury
for Article III standing purposes.
Morton has also satisfied the remaining two prongs of Article III
standing. His injury is directly traceable to the Virgin Islands'
refusal to issue EIPs to incarcerated individuals and could be
redressed by the equitable and monetary relief he proposes, even if
he would not be successful in obtaining them on the merits.
The Virgin Islands' arguments to the contrary -- that Morton did
not file a tax return before suing and does not belong to a
protected class -- bear on the merits of Morton's claims rather
than whether he had standing to bring them. They are arguments for
a motion to dismiss for failure to state a claim, not a motion to
dismiss for lack of subject matter jurisdiction. For that reason,
the District Court erred by crediting these arguments in concluding
that Morton lacked Article III standing.
Second, the Third Circuit opines that there is no basis in the
record to conclude that Morton's action is moot. The Virgin Islands
also argues that Morton's action is moot. But the record does not
establish whether Morton has received an EIP, which precludes us
from ruling on mootness. Thus, the Third Circuit leaves the
mootness determination to the District Court on remand.
Disposition
The Third Circuit concludes that Morton's action is justiciable for
its purposes, but that does not necessarily mean that his claims
can proceed once his case returns to the District Court. This
dispute may well be moot. And even if it is not, Morton will still
need to demonstrate that he has stated a claim on his three causes
of action. The Third Circuit vacated and remanded for further
proceedings consistent with its Opinion.
A full-text copy of the Court's Dec. 29, 2021 Opinion is available
at https://tinyurl.com/4d4aw6rs from Leagle.com.
Joseph A. DiRuzzo, III -- jd@diruzzolaw.com -- Daniel M. Lader,
[ARGUED] DiRuzzo & Company, 401 East Las Olas Boulevard, Suite
1400, in Fort Lauderdale, Florida 33301, Counsel for the
Appellant.
Kenneth Case, [ARGUED] United States Department of Justice, 3438
Kronprindsens Gade GERS Building, 2nd Floor, in St. Thomas, Virgin
Islands 00802, Counsel for the Appellees.
WESTERN AUSTRALIA: Sued Over Imprisonment for Unpaid Fines
----------------------------------------------------------
Giovanni Torre, writing for National Indigenous Times, reports that
a class action seeking compensation for false imprisonment for all
Indigenous people imprisoned under now defunct provisions of
Western Australia's Fines, Penalties and Infringement Notices Act
has been launched.
Sydney law firm Levitt Robinson launched the Federal Court action
in Perth "to hold the State of WA accountable for the death of
Julieka Dhu, who died in Police custody, aged 22, in August 2014,
after being abused, manhandled, and her pleas for help, scorned and
derided, by police and health personnel", they announced in a
statement on Jan. 10.
Ms Dhu had been taken to gaol for unpaid traffic injuries with
injuries which, untreated, proved fatal.
In 2016, the inquest into Ms Dhu's death found that the conduct of
police and medical professionals was inadequate, which led to the
Medical Board of Australia accusing the attending doctor of
misconduct, of which they were subsequently found guilty by the
State Administrative Tribunal.
In a briefing paper published in August 2020, the West Australian
Law Society noted that more than 7000 people, most of them
Indigenous, had been incarcerated under the State's Fines,
Penalties and Infringement Notices Act, 1994. In late September
2020, the Act was amended to remove provisions that led to
imprisonment for unpaid fines.
The class action, brought in the names of the Administrators of Ms
Dhu's Estate, seeks compensation, including for false imprisonment
for all Indigenous people (and their close dependent family
members), who were imprisoned under the law.
Senior Partner Stewart Levitt said the action "is the first prong
of a two-pronged campaign to persuade the West Australian
Government to enforce their recognition of Indigenous people's
rights to dignity, freedom and equality before the law".
He noted that Western Australia "has the world's highest
incarceration rate of people of a single racial group… Chinese
Uyghurs in Xinjiang Province excepted".
The campaign's "second prong" will be the commencement of a class
action later this year over the "inhumane and unlawful" treatment
of children at Banksia Hill Detention Centre.
The law firm has raised the question over whether "the offending
provisions in the Fines Enforcement legislation were
constitutionally valid".
Levitt said appropriate notices are being issued to the
Commonwealth and other State and Territory governments, inviting
them to be heard.
The firm said the Banksia Hill action "will focus the courts and
the eyes of the world on Australia's dishonour of its international
treaty obligations, with respect to the rights of children, the
disabled and its indigenous minorities".
National Indigenous Times has contacted the office of the Attorney
General of Western Australia for comment. [GN]
*********
S U B S C R I P T I O N I N F O R M A T I O N
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