/raid1/www/Hosts/bankrupt/CAR_Public/220214.mbx
C L A S S A C T I O N R E P O R T E R
Monday, February 14, 2022, Vol. 24, No. 26
Headlines
3 HOLDINGS LLC: Abreu Files ADA Suit in S.D. New York
3M COMPANY: Hume Suit Alleges Exposure to PFAS From AFFF Products
AETNA INC: Kulwicki Files Suit in D. Connecticut
ALABAMA: DOC Commissioner Appeals Omnibus Order in Dunn Suit
ALLEGHENY MARKETING: Stryker's Bid to Dismiss Thomas Suit Granted
ALLIED POTATO: Cruz Files Suit in Cal. Super. Ct.
AMERASSIST A/R SOLUTIONS: Williams Files FDCPA Suit in N.D. Alabama
AMERICAN AIRLINES: Faces Wilhelm Wage-and-Hour Suit in N.D. Ill.
AMERICAN GENERAL: Moriarty Seeks to Certify Insurance Owner Class
BAPTIST HEALTH: Wins Bid to Compel Arbitration in Holmes ERISA Suit
BESSEMER TRUST: Pecou ERISA Suit Asserts Breach of Fiduciary Duties
BINGHAM SERVICES: Sage Files Suit in Cal. Super. Ct.
BORTOLAMI LLC: Miller Files ADA Suit in S.D. New York
BOSTON, MA: Norkunas Ordered to Post $44K-Appeal Bond in Muehe Suit
BOUTCHANTHARAJ CORP: Rattler-Bryceland Sues Over Unpaid Overtime
BP EXPLORATION: Eastern District of Louisiana Dismisses Smith Suit
BROOK FURNITURE: Hedges Files ADA Suit in S.D. New York
BROWN COUNTY: Weaver Sues Over Home Health Aides' Unpaid Overtime
CANDID CARE: Scheduling Order Entered in Thomas FLSA Class Suit
CDR MAGUIRE: Filing for Rule 23 Class Certification Due Sept. 23
CENTRAL YETEV: Filing for Conditional/Class Cert. Bids Due May 4
CHURCHILL CORPORATE: Hedges Files ADA Suit in S.D. New York
COFFEE HOLDING: Indemnified Customer in Suit Over Coffee Volume
COLLAGE.COM INC: Paguada Files ADA Suit in S.D. New York
COMMUNITY HEALTH: Young FDUTPA Suit Removed to M.D. Florida
COSWAY BEAUTY: Abreu Files ADA Suit in S.D. New York
CR INTRINSIC: Court Grants SEC's Bid to Disburse Funds to Pay Fees
CVS PHARMACY: Surratt Files Mislabeling Suit Over Infant Formula
DASHING DIVA: Abreu Files ADA Suit in S.D. New York
DAVIS & LANGDALE: Miller Files ADA Suit in S.D. New York
DOCUSIGN INC: Weston Sues Over More Than 42% Drop of Stock Price
ECHO GLOBAL: Cienega Labor Suit Transferred to N.D. Illinois
ENBRIDGE INC: Class Status Bid Filing Due Nov. 11
ENVISION HEALTHCARE: Parties in "Linde" Seek to Amend Sched Order
EQT CORP: Third Circuit Grants Petition to Appeal in Laudato Suit
EUROMARKET DESIGNS: Ghazaryan Seeks to Certify Class, Subclass
FLORIDA INTERNATIONAL: Underpays Security Guards, Rodriguez Says
FPA VILLA: Wins Summary Judgment vs Lawrence
FREELAND ENTERPRISES: Scott Balks at Drivers' Unreimbursed Expenses
GENWORTH LIFE: Filing of Class Cert. Bid Extended to June 27
GEORGIA: King, et al., Seek to Certify Prompt Appeal Class
GIB'S DISTRIBUTION: Abreu Files ADA Suit in S.D. New York
GLOBAL PIPELINE: Faces Guerrero Suit Over Laborers' Unpaid Wages
GM NAMEPLATE: Faces Ochoa Wage-and-Hour Suit in California
GREAT AIR: Paguada Files ADA Suit in S.D. New York
GUNS DOT COM: Paguada Files ADA Suit in S.D. New York
HABERMAASS CORPORATION: Paguada Files ADA Suit in S.D. New York
IBM CORP: 2nd Cir. Affirms Dismissal of Estle Discrimination Suit
INSPIRED BEAUTY: Abreu Files ADA Suit in S.D. New York
IT'S A NEW 10: Abreu Files ADA Suit in S.D. New York
ITRIA VENTURES: InvenTel.tv Sues Over Misrepresentation of Loans
JPMORGAN CHASE: Class in Dennis Suit Under Deal With ANZ Certified
JPMORGAN CHASE: Class in Dennis Suit Under Deal With CBA Certified
JPMORGAN CHASE: Class in Dennis Suit Under Morgan Deal Certified
JPMORGAN CHASE: Class in Dennis Suit Under NAB Accord Certified
JPMORGAN CHASE: Class Notice of Dennis Settlement With Westpac OK'd
JPMORGAN CHASE: Class Notice of Dennis-Morgan Stanley Deal OK'd
JPMORGAN CHASE: Class Notice Plan of Dennis Deal With CBA Granted
JPMORGAN CHASE: Class Notice Plan of Dennis Deal With NAB Approved
JPMORGAN CHASE: Court Accepts Class Notice Plan for Dennis-ANZ Deal
JPMORGAN CHASE: March 2021 Order on Dennis-JPMorgan Deal Amended
JPMORGAN CHASE: March 2021 Order on Dennis-Westpac Deal Amended
JULIO H. BAEZ: Soto Sues Over Unpaid Wages for Grocery Store Staff
JUUL LABS: Faces Mineral Suit Over E-Cigarette Campaign to Youth
JUUL LABS: Leeds City Sues Over Deceptive E-Cigarette Youth Ads
JUUL LABS: Markets E-Cigarette to Youth, Raleigh County Claims
KMI BRANDS: Abreu Files ADA Suit in S.D. New York
KONINKLIJKE PHILIPS: Giuffre Suit Transferred in W.D. Pennsylvania
KROGER COMPANY: Class Action Settlement in Hawkins Gets Final Nod
KYMERA BODY BOARD: Paguada Files ADA Suit in S.D. New York
LEPRINO FOODS: Bates Seek to Certify Class of Hourly Workers
M-I LLC: Order on Class Cert. Briefing, Hearing Dates Entered
MACY'S WEST: Appeals Class Cert. Ruling in Hawes Suit
MADSPORTSSTUFF LLC: Paguada Files ADA Suit in S.D. New York
MARIETTA AREA: McCumbers Files Suit in S.D. Ohio
MARINO MARBLE: Pereira Sues Over Failure to Pay Proper Wages
MARK LINDON: TEUZA Files Suit in Del. Chancery Ct.
MATTHEW MARKS: Miller Files ADA Suit in S.D. New York
MCMILLAN-HENDRYX INC: $44.5K PAGA Settlement in Gilmore Suit OK'd
MEDICAL REVIEW: White Files Suit in D. Utah
MEREDITH WARD: Miller Files ADA Suit in S.D. New York
MOON STAR: Mao Yun Chi Sues Over Unpaid Wages for Kitchen Helpers
NAVIENT CORP: Awaits Final OK of Accord in Securities Suit
NEW MILLENNIUM: Accord Over Omitted Exhibit in Farrell Suit OK'd
NEW YORK, NY: Jacobson COVID-19 Suit Seeks to Certify Class
NEW YORK, NY: Malcolm, et al., Seek More Time to File Reply
NP IN FAMILY: Abreu Files ADA Suit in S.D. New York
O.B.'S BAKERY: Richards Sues Over Unpaid Wages for Bakery Staff
OPTIO SOLUTIONS: Nabozny's FDCPA Suit Dismissed Without Prejudice
PFIZER INC: Adams Files Suit in S.D. New York
PFIZER INC: Smith Files Suit in S.D. New York
PIZZERIA OF ISLIP: Echevarria Sues Over Cooks' Unpaid Wages
PLAINS MARKETING: Wake Energy Files Suit in D. Wyoming
PLURIS WEDGEFIELD: Kohl's Class Cert. Bid Tossed w/o Prejudice
QIHOO 360: Court Approves Service of Altimeo Complaint to Zhou & Qi
R.C. QUIGGLE: Paguada Files ADA Suit in S.D. New York
RAINBOW USA: Hicks Suit Removed to S.D. Florida
RAPID PALLET: Williams Sues Over Failure to Pay Proper Overtime
REEVES INTERNATIONAL: Hedges Files ADA Suit in S.D. New York
REXALL SUNDOWN: Summary Judgment in Seegert Suit Partly Affirmed
ROI SOLUTIONS: Court Resolves Class Notice Issues in Stenulson Suit
RUST-OLEUM CORP: Third Amended Case Mng't Sched Order Entered
SOCLEAN INC: Brooks Suit Transferred to W.D. Pennsylvania
SPORTS UNLIMITED: Paguada Files ADA Suit in S.D. New York
STATE FARM: March 16 Extension to File Response Sought in Martino
STEP2 COMPANY: Paguada Files ADA Suit in S.D. New York
TAL EDUCATION: Faces Sun Suit Over Misleading Reports
TAMKO BUILDING: Compelled to Give Responsive Docs in Melnick Suit
TERRI BIAS: Deadline to File Class Cert. Bid Suspended in Berry
TIPSY JOE: Windheim Sues Over Restaurant Servers' Unpaid Wages
TOKIDOKI LLC: Paguada Files ADA Suit in S.D. New York
TOROSIAN TECH: Fails to Properly Pay Electricians, Johnson Claims
TTEC SERVICES: Anderson Files Suit in D. Colorado
TTEC SERVICES: Barocas Files Suit in D. Arizona
VALVE CORP: Galway Appeals Lootbox Gambling Case Dismissal
VOLKSWAGEN AG: 9th Cir. Affirms Dismissal of Schell Liability Suit
WASHINGTON: HCA Loses Bid for Judgment on Pleadings in Lynch Suit
WEST VIRGINIA: Loses Objection to Protective Order Denial in Baxley
WESTCARE CALIFORNIA: Hollingsworth Files Suit in Cal. Super. Ct.
WHENEVER COMMUNICATIONS: Iskhakova Files ADA Suit in E.D. New York
WILEY X INC: Abreu Files ADA Suit in S.D. New York
WOODLAKE TECHNOLOGIES: Iskhakova Files ADA Suit in E.D. New York
WYNDHAM VACATION: Court Stays Dupree Suit Pending Arbitration
*********
3 HOLDINGS LLC: Abreu Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against 3 Holdings, LLC. The
case is styled as Luigi Abreu, individually, and on behalf of all
others similarly situated v. 3 Holdings, LLC, Case No.
1:22-cv-01101 (S.D.N.Y., Feb. 8, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Strike 3 Holdings LLC is a company that produces pornographic
films.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
MIZRAHI & KROUB LLP
200 Vesey St, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: jmizrahi@mizrahikroub.com
3M COMPANY: Hume Suit Alleges Exposure to PFAS From AFFF Products
-----------------------------------------------------------------
MICHAEL HUME and SIMONE HUME, his wife, individually and on behalf
of all others similarly situated, Plaintiffs v. 3M COMPANY f/k/a
Minnesota Mining and Manufacturing Company; ACG CHEMICALS AMERICAS
INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE
FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN
PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY
FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. f/k/a DOWDUPONT INC.;
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. f/k/a
GE Interlogix, Inc., Defendants, Case No. 2:22-cv-00381-RMG
(D.S.C., February 8, 2022) is a class action against the Defendants
for negligence, battery, inadequate warning, design defect, strict
liability, fraudulent concealment, breach of express and implied
warranties, wantonness, and per quod claim.
The case arises from severe personal injuries sustained by
Plaintiff Michael Hume as a result of his exposure to the
Defendants' aqueous film forming foam (AFFF) products containing
synthetic, toxic per- and polyfluoroalkyl substances collectively
known as PFAS. The Defendants failed to use reasonable and
appropriate care in the design, manufacture, labeling, warning,
instruction, training, selling, marketing, and distribution of
their PFAS-containing AFFF products and also failed to warn public
entities and firefighter trainees, including Mr. Hume, who they
knew would foreseeably come into contact with their AFFF products
that use of and/or exposure to the products would pose a danger to
human health. Due to inadequate warning, Mr. Hume was exposed to
toxic chemicals and was diagnosed with metastatic prostate cancer,
the suit says.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiffs are represented by:
Stephen T. Sullivan, Jr., Esq.
John E. Keefe, Jr., Esq.
WILENTZ, GOLDMAN & SPITZER P.A.
125 Half Mile Road, Suite 100
Red Bank, NJ 07701
Telephone: (732) 855-6060
Facsimile: (732) 726-4860
AETNA INC: Kulwicki Files Suit in D. Connecticut
------------------------------------------------
A class action lawsuit has been filed against Aetna, Inc. The case
is styled as Tara Kulwicki, on behalf of herself and all others
similarly situated v. Aetna, Inc., Case No. 3:22-cv-00229-RNC (D.
Conn., Feb. 9, 2022).
The nature of suit is stated as Other Civil Rights.
Aetna Inc. -- https://www.aetna.com/ -- is an American managed
health care company that sells traditional and consumer directed
health care insurance and related services, such as medical,
pharmaceutical, dental, behavioral health, long-term care, and
disability plans, primarily through employer-paid (fully or partly)
insurance and benefit programs, and through Medicare.[BN]
The Plaintiff is represented by:
Joseph P. Guglielmo, Esq.
SCOTT+SCOTT, ATTORNEYS AT LAW, LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
Phone: (212) 223-6444
Fax: (212) 223-6334
Email: jguglielmo@scott-scott.com
ALABAMA: DOC Commissioner Appeals Omnibus Order in Dunn Suit
------------------------------------------------------------
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, et al., filed an
appeal from a court ruling entered in the lawsuit entitled Joshua
Dunn, et al., on behalf of themselves and all others similarly
situated; and Alabama Disabilities Advocacy Program v. Commissioner
Kim Thomas, in his official capacity as Commissioner of the Alabama
Department of Corrections; Ruth Naglich, in her official capacity
as Associate Commissioner of Health Services for the Alabama
Department of Corrections; and Alabama Department of Corrections,
Case No. 2:14-cv-00601-WKW-TFM, in the U.S. District Court for the
Middle District of Alabama.
As reported in the Class Action Reporter, the lawsuit is brought on
behalf of the Plaintiffs and similarly situated persons, who are
incarcerated in Alabama Department of Corrections prisons. The
Plaintiffs seek to remedy, among other things, the Defendants'
alleged failure to provide to persons in the custody of the ADOC
constitutionally adequate medical care and mental health care.
In the current appellate case, the Defendants seek a review of
Court's Phase 2A Omnibus Remedial Opinion and Order dated December
27, 2021.
The appellate case is captioned as Commissioner, Alabama Department
of Corrections, et al. v. Joshua Dunn, et al., Case No. 22-10292,
in the United States Court of Appeals for the Eleventh Circuit,
filed on Jan. 26, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant's Certificate of Interested Persons is due on or
before Feb. 17, 2022 as to Appellant Commissioner, Alabama
Department of Corrections; and
-- Appellee's Certificate of Interested Persons is due on or
before March 3, 2022 as to Appellee Alabama Disabilities Advocacy
Program.[BN]
Defendants-Appellants-Cross Appellees COMMISSIONER, ALABAMA
DEPARTMENT OF CORRECTIONS; and INTERIM ASSOCIATE COMMISSIONER OF
HEALTH SERVICES FOR THE ALABAMA DEPARTMENT OF CORRECTIONS, are
represented by:
Steven C. Corhern, Esq.
BALCH & BINGHAM, LLP
1901 6th Ave N Ste 1500
Birmingham, AL 35203
Telephone: (205) 251-8100
- and -
Luther M. Dorr, Jr., Esq.
MAYNARD COOPER & GALE, PC
1901 6th Ave N Ste 1700
Birmingham, AL 35203
Telephone: (205) 254-1000
- and -
William R. Lunsford, Esq.
Matthew B. Reeves, Esq.
Stephen Clarence Rogers, Esq.
Kenneth S. Steely, Esq.
MAYNARD COOPER & GALE, PC
655 Gallatin St SW
PO Box 18668
Huntsville, AL 35801
Telephone: (256) 551-0171
- and -
Joseph Gordon Stewart, Jr., Esq.
ALABAMA DEPARTMENT OF CORRECTIONS
301 S Ripley St
PO Box 301501
Montgomery, AL 36130-1501
Telephone: (334) 353-3885
Plaintiffs-Appellees-Cross Appellants ALABAMA DISABILITIES ADVOCACY
PROGRAM; and ALL PLAINTIFFS, on behalf of themselves and all others
similarly situated, are represented by:
Patricia Clotfelter, Esq.
William G. Somerville, III, Esq.
BAKER DONELSON BERMAN CALDWELL & BERKOWITZ, PC
420 N 20th St Ste 1400
Birmingham, AL 35203
Telephone: (205) 250-8314
- and -
William Van Der Pol, Jr., Esq.
UNIVERSITY OF ALABAMA SCHOOL OF LAW
PO Box 870395
Tuscaloosa, AL 35487
Telephone: (205) 348-4928
ALLEGHENY MARKETING: Stryker's Bid to Dismiss Thomas Suit Granted
-----------------------------------------------------------------
Judge W. Scott Hardy of the U.S. District Court for the Western
District of Pennsylvania grants Stryker Corporation's motion to
dismiss the lawsuit titled KENNETH A. THOMAS MD, LLC, Plaintiff v.
ALLEGHENY MARKETING GROUP, INC., and STRYKER CORPORATION,
Defendants, Case No. 20-840 (W.D. Pa.).
The matter comes before the Court on the Report and Recommendation
("R&R") entered by Magistrate Lisa Pupo Lenihan on Nov. 1, 2021.
Plaintiff Kenneth A. Thomas MD, LLC, a physician's Connecticut
limited liability company, first brought the putative nationwide
class action against Defendant Allegheny Marketing Group, Inc.
("AMG"), a global marketing research firm and Pennsylvania
corporation. The Plaintiff subsequently filed an Amended Complaint
to add Stryker Corp., a Michigan medical technology corporation, as
an additional Defendant.
The Plaintiff's action is brought under the Telephone Consumer
Protection Act (the "TCPA"), 47 U.S.C. Section 227, which makes it
unlawful for any person to use any telephone facsimile machine,
computer or other device to send, to a telephone facsimile machine,
an unsolicited advertisement. AMG answered the Plaintiff's Amended
Complaint, and Defendant Stryker moved to dismiss with prejudice
the claim against it in the Amended Complaint for lack of personal
jurisdiction and for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(2) and 12(b)(6), respectively.
The R&R recommends that Defendant Stryker's Motion to Dismiss
should be granted because the Plaintiff's Amended Complaint fails,
as a matter of law, to state a claim against Stryker under the
TCPA, and Stryker, therefore, should be dismissed as a Defendant in
this case. Service of the R&R was made on all parties, and they
were informed that any objections to same were due by Nov. 15,
2021. The Plaintiff subsequently moved for, and was granted, an
extension of time to file objections by Nov. 29, 2021, and any
response by Defendant Stryker was due by Dec. 27, 2021. Thereafter,
no party filed any objections to the R&R.
The Federal Rules of Civil Procedure provide that a party may file
specific written objections to the proposed findings and
recommendations of a magistrate judge, and a district judge must
conduct a de novo review of any part of the R&R that has been
properly objected to. Here, however, because no party filed any
objections to the R&R, the Court reviews the magistrate judge's
decision for plain error.
In the case, upon careful review of the R&R and the entire record,
including the Plaintiff's Amended Complaint, Defendant Stryker's
Motion to Dismiss and supporting brief, the Plaintiff's Response
thereto, and Stryker's Reply, and finding no plain error on the
face of the record, the Court will accept Judge Lenihan's
recommendation.
As such, the Court will adopt the R&R as the Opinion of the Court,
and will grant Defendant Stryker's Motion to Dismiss as more
specifically set forth.
Accordingly, the Court ordered that the R&R is adopted as the
Opinion of the Court.
For the reasons set forth in the R&R, it is further ordered that
Defendant Stryker's Motion to Dismiss for failure to state a claim
is granted, and the Plaintiff's claim against Stryker under the
TCPA as alleged in the Amended Complaint is dismissed with
prejudice.
A full-text copy of the Court's Memorandum Order dated Jan. 20,
2022, is available at https://tinyurl.com/ymmhp442 from
Leagle.com.
ALLIED POTATO: Cruz Files Suit in Cal. Super. Ct.
-------------------------------------------------
A class action lawsuit has been filed against Allied Potato, Inc.,
et al. The case is styled as Rene Garcia Cruz, an individual, on
behalf of himself and others similarly situated v. Allied Potato,
Inc., Arriola Farm Labor, Inc., Case No. BCV-22-100238 (Cal. Super.
Ct., Kern Cty., Jan. 27, 2022).
The case type is stated as "Other Employment - Civil Unlimited."
Allied Potato -- https://alliedpotato.com/ -- is an internationally
recognized leading potato grower, packer, shipper, and
exporter.[BN]
The Plaintiff is represented by:
Alvin B. Lindsay, Esq.
DAVID YEREMIAN & ASSOCIATES, INC.
535 N Brand Blvd., Ste. 705
Glendale, CA 91203-1989
Phone: 818-230-8380
Fax: 818-230-0308
Email: alvin@yeremianlaw.com
AMERASSIST A/R SOLUTIONS: Williams Files FDCPA Suit in N.D. Alabama
-------------------------------------------------------------------
A class action lawsuit has been filed against Amerassist A/R
Solutions Inc. The case is styled as Kristina Williams,
individually and on behalf of similarly situated persons v.
Amerassist A/R Solutions Inc., Case No. 2:22-cv-00177-JHE (N.D.
Ala., Feb. 9, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
AmerAssist A/R Solutions, Inc. -- http://www.amerassist.com/-- is
a debt collection company located in Columbus, Ohio.[BN]
The Plaintiff is represented by:
Adam W Pittman, Esq.
Brett C Thompson, Esq.
Douglas A Dellaccio, Jr., Esq.
Taylor Akers Pruett, Esq.
CORY WATSON ATTORNEYS PC
2131 Magnolia Avenue South, Suite 200
Birmingham, AL 35205
Phone: (205) 328-7000
Fax: (205) 324-7896
Email: apittman@corywatson.com
bthompson@corywatson.com
ddellaccio@corywatson.com
tpruett@corywatson.com
AMERICAN AIRLINES: Faces Wilhelm Wage-and-Hour Suit in N.D. Ill.
----------------------------------------------------------------
ROBERT WILHELM, individually and on behalf of all others similarly
situated, Plaintiff v. AMERICAN AIRLINES, INC., Defendant, Case No.
1:22-cv-00690 (N.D. Ill., February 8, 2022) is a class action
against the Defendant for violations of the Fair Labor Standards
Act and the Illinois Minimum Wage Law by failing to compensate the
Plaintiff and similarly situated fleet service clerks overtime pay
for all hours worked in excess of 40 hours in a workweek.
The Plaintiff has worked for the Defendant as a fleet service clerk
from 1986 until the present.
American Airlines, Inc. is an airline company based in Chicago,
Illinois. [BN]
The Plaintiff is represented by:
Colby Qualls, Esq.
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Pkwy, Suite 510
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
E-mail: colby@sanfordlawfirm.com
josh@sanfordlawfirm.com
AMERICAN GENERAL: Moriarty Seeks to Certify Insurance Owner Class
-----------------------------------------------------------------
In the class action lawsuit captioned as MICHELLE L. MORIARTY,
Individually, as Successor-In-Interest to Heron D. Moriarty,
Decedent, on Behalf of the Estate of Heron D. Moriarty, and on
Behalf of the Class, v. AMERICAN GENERAL LIFE INSURANCE COMPANY, a
Texas Corporation; BAYSIDE INSURANCE ASSOCIATES, INC., a California
Corporation; and Does 1-20, Inclusive, Case No.
3:17-cv-01709-BTM-WVG (S.D. Cal.), the Plaintiff asks the Court to
enter an order:
1. certifying this case as a class action with the Class
defined as:
"All owners, or beneficiaries upon a death of the insured,
of the Defendant's individual life insurance policies that
were renewed, issued, or delivered by Defendant in
California, and in force on January 1, 2013, and which
underwent or will undergo lapse or termination for the
non-payment of premium without Defendant first providing
all of the notices, grace periods, and offers of
designation required by Insurance Code Sections 10113.71
and 10113.72;"
2. appointing her as the Class Representative; and
3. appointing the law firms of Nicholas & Tomasevic, LLP and
Winters & Associates as class counsel.
In this action, the Defendant allegedly systematically failed to
comply with California Insurance Code sections 10113.71 and
10113.72.
American General operates as an insurance company. Bayside
Insurance offers custom, comprehensive insurance policy options for
homeowners, business, vehicles, and property for the Mid-Shore.
A copy of the Plaintiff's motion to certify class dated Feb. 7,
2021 is available from PacerMonitor.com at https://bit.ly/3GV0U9H
at no extra charge.[CC]
The Plaintiff is represented by:
Craig M. Nicholas, Esq.
Alex M. Tomasevic, Esq.
Shaun Markley, Esq.
NICHOLAS & TOMASEVIC, LLP
225 Broadway, 19th Floor
San Diego, CA 92101
Telephone: (619) 325-0492
Facsimile: (619) 325-0496
E-mail: cnicholas@nicholaslaw.org
atomasevic@nicholaslaw.org
smarkley@nicholaslaw.org
- and -
Jack B. Winters, Jr., Esq.
Georg M. Capielo, Esq.
Sarah Ball, Esq.
WINTERS & ASSOCIATES
8489 La Mesa Boulevard
La Mesa, CA 91942
Telephone: (619) 234-9000
Facsimile: (619) 750-0413
E-mail: jackbwinters@earthlink.net
gcapielo@einsurelaw.com
sball@einsurelaw.com
BAPTIST HEALTH: Wins Bid to Compel Arbitration in Holmes ERISA Suit
-------------------------------------------------------------------
The U.S. District Court for the Southern District of Florida grants
the Defendants' motion to compel arbitration in the lawsuit titled
Lawanda Holmes and others, Plaintiffs v. Baptist Health South
Florida, Inc. and others, Defendants, Case No. 21-22986-Civ-Scola
(S.D. Fla.).
In the Employee Retirement Income Security Act
breach-of-fiduciary-duty case, the Defendants filed three motions
when responding to the complaint: a motion to compel arbitration, a
motion to stay, and a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. The Court addresses only the
Defendants' motion to compel arbitration, to which the Plaintiffs
filed a response in opposition and the Defendants filed a reply in
support.
Background
Baptist Health South Florida, Inc., employs approximately 23,000
people and, in 1989, created a 403(b) employee retirement plan (the
"Plan") to facilitate employee retirement savings. The Plan is a
defined contribution plan where each participant has a separate
account based on the amounts individually contributed. The
Plaintiffs, who purport to bring this action on behalf of
themselves, the Plan, and a putative class of similarly-situated
individuals, each participated in the Plan.
The Plaintiffs allege that during the Class Period--Feb. 3, 2015,
to the date of judgment--the Defendants, each a fiduciary of the
Plan, breached their fiduciary duties by failing to review and
contain costs and by investing in high-cost investment funds
despite the availability of similar funds with lower costs or
better performance histories.
In 2020, the Plan was amended to include, in relevant part, an
arbitration agreement. This amendment was made pursuant to the Plan
Sponsor's express, unilateral ability to amend the Plan. The
arbitration agreement forbids arbitrations brought on a
representative or class basis. Moreover, it precludes individuals
that bring an arbitration claim from receiving "remedial or
equitable relief" that provides additional benefits or monetary
relief to any person other than the Claimant.
Analysis
In arguing that the arbitration agreement is not enforceable, the
Plaintiffs raise two challenges. First, the Plaintiffs argue that
the arbitration agreement and its waiver of certain Plan-wide
remedies violate the "effective vindication" doctrine. Second, the
Plaintiffs argue that the arbitration agreement is not binding as
the agreement was added to the Plan by unilateral amendment in
2020.
A. Effective Vindication
The "effective vindication" doctrine is a judge-made exception to
the Federal Arbitration Act ("FAA") that seeks to balance the
competing federal policies in enforcing arbitration agreements and
in vindicating plaintiffs' rights to pursue statutory remedies; see
Am. Express Co. v. Italian Colors Rest., 570 U.S. 228, 235(-);
Smith v. Brd. of Dirs. of Triad Mfg., Inc., 13 F.4th 613, 621 (7th
Cir. 2021). Though rarely applied, the doctrine holds that courts
may invalidate arbitration agreements that "operate as a
prospective waiver of a party's right to pursue statutory
remedies."
The Plaintiffs argue that the Plan's arbitration agreement prevents
the effective vindication of rights guaranteed in 29 U.S.C. Section
1109(a). The Plaintiffs point to Smith, where the Seventh Circuit
held that an arbitration clause, which precluded relief that
provided "additional benefits or monetary or other relief to any"
other individual, was unenforceable under the effective vindication
doctrine, as the clause prohibited plan-wide relief that ERISA
expressly permitted.
The Defendants argue that such Plan-wide relief is only available
to those who bring a class action on behalf of the Plan. And, the
Defendants argue, as courts have held that class-action arbitration
waivers are permissible, any waiver of a remedy unique to
representative or class actions is also permissible.
District Judge Robert N. Scola, Jr., notes that the Plaintiffs
point to no authority where the Eleventh Circuit has applied the
"effective vindication" doctrine to void an arbitration clause. And
the Eleventh Circuit has expressed a hesitancy to do so, citing
Sierra v. Cruise Ships Catering and Servs., N.V., 631 F. App'x 714,
718 (11th Cir. 2015).
Given the FAA's pro-arbitration policy, as well as the rarity with
which courts apply the effective vindication doctrine, the Court
declines to follow the Smith rationale and holds that the
arbitration agreement at issue is valid and enforceable. While the
arbitration agreement prohibits the recovery of some Plan-wide
monetary relief, such relief is only available to those who bring a
representative or class action, Judge Scola holds. And as the
Eleventh Circuit has already held that a waiver of the right to
bring a class action in arbitration is permissible, the concomitant
waiver of remedies associated with class actions is also
permissible.
In any event, even if the Court were to follow the Seventh
Circuit's rationale in Smith, the arbitration clause at issue here
is narrower than the one in Smith, Judge Scola finds. The
arbitration clause in Smith prohibited relief that provided
"additional benefits or monetary or other relief" to anyone besides
the claimant. Therefore, certain relief, such as the removal of a
fiduciary, was completely barred, as no claimant in an arbitration
would have been able to obtain such remedy under the arbitration
clause.
Here, the arbitration clause only prohibits relief that provides
"additional benefits or monetary relief to any person" other than
the claimant, Judge Scola holds. Therefore, the specific relief
that the Plaintiffs argue has been barred--the ability to seek
removal and appointment of the Plan's fiduciaries--is not barred by
the arbitration clause. While that sought-after relief has a
Plan-wide effect, it does not provide additional benefits or
monetary relief as prohibited.
Thus, while the arbitration clause in Smith completely denied some
types of statute-authorized relief to the Plan, the clause here
does not, as individual claimants can each recover the harm to
their defined contribution accounts, and they can recover Plan-wide
relief that does not provide additional benefits or monetary relief
to others. For this reason, the arbitration agreement here is valid
and enforceable, Judge Scola concludes.
B. Unilateral Amendment
Next, the Plaintiffs contend that the arbitration agreement is not
binding on them because they did not knowingly agree to it. The
Plaintiffs argue that the arbitration agreement was unilaterally
adopted by amendment in 2020 by Baptist Health, as Plan Sponsor,
and that no Plan participant was given the option of consenting to
the amendment.
Despite the unseemly nature of requiring Plan-participant
Plaintiffs to arbitrate a claim that they never personally agreed
to arbitrate, the Plan agreed to arbitrate, Judge Scola notes.
Section 1109(a) claims belong to the Plan. Therefore, the relevant
inquiry is not whether individual participants agreed to the
arbitration agreement but whether the Plan agreed to arbitrate.
Here, the Plan consented to the 2020 amendment, which added the
arbitration clause, as the Plan expressly provided for unilateral
amendment by the Plan Sponsor. As the Plan consented to the
arbitration agreement, the Plan, and those that bring claims on its
benefit, must arbitrate.
Last, the Plaintiffs also argue that the arbitration agreement can
only be binding on the Plaintiffs, who were participating in the
Plan at the time that the arbitration clause was added. Here,
Plaintiff Lawanda Holmes was a participant in the Plan during the
Class Period, but she was terminated and removed all her funds from
the Plan in September 2018, before the arbitration agreement was
added to the Plan.
However, Judge Scola says, the Plaintiffs' breach-of-fiduciary-duty
claims are brought on behalf of the Plan. While Plaintiff Holmes
never agreed to arbitrate and was not put on notice of an agreement
to arbitrate while she was a participant in the Plan, the Plan
agreed to arbitration, and any claims on behalf of the Plan,
including those brought by Plaintiff Holmes, must be brought in
arbitration.
For these reasons, the Court holds that the Plan consented to
arbitrate and that the Plaintiffs, who bring claims on behalf of
the Plan, must arbitrate their claims.
Conclusion
In total, the Court grants the Defendants' motion to compel
arbitration. The Court orders the parties to submit their disputes
to arbitration. The case is stayed pending arbitration, and the
Court orders the parties to advise the Court once the arbitration
is terminated or once the claims are otherwise resolved. In the
meantime, the Clerk is directed to administratively close the case.
All pending motions are denied as moot.
A full-text copy of the Court's Order dated Jan. 20, 2022, is
available at https://tinyurl.com/2p8fxw9b from Leagle.com.
BESSEMER TRUST: Pecou ERISA Suit Asserts Breach of Fiduciary Duties
-------------------------------------------------------------------
JUBRIL PECOU, individually and as the representative of a class of
similarly situated persons, and on behalf of the Bessemer Trust
Company 401(k) and Profit Sharing Plan, Plaintiff v. BESSEMER TRUST
COMPANY and PROFIT SHARING PLAN COMMITTEE OF BESSEMER TRUST COMPANY
Defendants, Case No. 1:22-cv-01019 (S.D.N.Y., Feb. 4, 2022) is
brought under the Employee Retirement Income Security Act of 1974
arising from the Defendants' breach of fiduciary duties and
engagement in unlawful self-dealing with respect to the Bessemer
Trust Company 401(k) and Profit Sharing Plan in violation of ERISA,
to the detriment of the Plan, its participants, and its
beneficiaries.
According to the complaint, the Defendants have failed to
administer the Plan in the best interest of participants and failed
to employ a prudent process for managing the Plan. Instead, the
Defendants have managed the Plan in a manner that benefits Bessemer
Trust at participants' expense, using the Plan as an opportunity to
promote Bessemer Trust's Old Westbury mutual fund business and
maximize profits in lieu of participants' best interests.
By selecting and retaining Old Westbury Funds as investment options
within the Plan in lieu of superior alternative options utilized by
similarly situated fiduciaries, Defendants have allegedly failed to
act in the best interest of participants and exercise appropriate
care, costing participants millions of dollars in excess fees and
investment underperformance.
The Plaintiff resides in Brooklyn, New York and was a participant
in the Plan until 2020. As a Plan participant, Plaintiff invested
in multiple investment options managed by Bessemer Trust through
its Old Westbury Funds and has been financially injured by the
Defendants' unlawful conduct, says the suit.
Bessemer Trust is a private, independent multi-family office that
oversees more than $140 billion for over 2,500 families,
foundations and endowments.[BN]
The Plaintiff is represented by:
Paul J. Lukas, Esq.
Kai Richter, Esq.
Brock J. Specht, Esq.
Steven J. Eiden, Esq.
NICHOLS KASTER, PLLP
4700 IDS Center 80 South Eighth Street
Minneapolis, MN 55402
Telephone: (612) 256-3200
Facsimile: (612) 338-4878
E-mail: lukas@nka.com
krichter@nka.com
bspecht@nka.com
seiden@nka.com
BINGHAM SERVICES: Sage Files Suit in Cal. Super. Ct.
----------------------------------------------------
A class action lawsuit has been filed against Bingham Services,
Inc., et al. The case is styled as William Sage, individually and
on behalf of all, others similarly situated v. Bingham Services,
Inc., d/b/a One Hour Heating & Air Conditioning d/b/a Mister Sparky
d/b/a Mistersoarky Electric, Does 1 through 10, Inclusive, Case No.
CGC22598082 (Cal. Super. Ct., San Francisco Cty., Feb. 9, 2022).
The case type is stated as "Other Non-Exempt Complaints."
Bingham Services Inc. -- https://www.binghamservicesinc.com/ --
offers the most comprehensive service in the contents claims
industry.[BN]
The Plaintiff is represented by:
Kane Moon, Esq.
MOON & YANG, APC
1055 W 7th St., Ste. 1880
Los Angeles, CA 90017-2529
Phone: 213-232-3128
Fax: 213-232-3125
Email: kane.moon@moonyanglaw.com
BORTOLAMI LLC: Miller Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Bortolami LLC. The
case is styled as Kimberly Miller, on behalf of herself and all
other persons similarly situated v. Bortolami LLC, Case No.
1:22-cv-01141 (S.D.N.Y., Feb. 9, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Bortolami -- https://bortolamigallery.com/ -- is in the Art Gallery
business.[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
BOSTON, MA: Norkunas Ordered to Post $44K-Appeal Bond in Muehe Suit
-------------------------------------------------------------------
In the case, MICHAEL MUEHE, ELAINE HAMILTON, CRYSTAL EVANS, and
COLLEEN FLANAGAN v. CITY OF BOSTON, Civil Action No. 21-11080-RGS
(D. Mass.), Judge Richard D. Stearns of the U.S. District Court for
the District of Massachusetts required class member William
Norkunas to post an appeal bond of $44,433.25.
I. Background
On Nov. 2, 2021, the Court entered a final judgment and order
approving a class action settlement that will provide extensive
injunctive relief -- on an ambitious yet realistic schedule -- to
individuals with mobility disabilities who have been denied equal
access to the City of Boston's pedestrian right of way because of
deficient or missing curb ramps. Class member Norkunas objected to
the proposed settlement and now appeals the Court's decision to the
First Circuit.
Currently before the Court is the Plaintiffs' motion to require
Norkunas to post an appeal bond of $88,866.50 pursuant to Federal
Rule of Appellate Procedure 7, claiming that such a bond will
secure some of the costs that the Plaintiffs will incur in
defending Norkunas' appeal.
II. Discussion
The Plaintiffs argue that a Rule 7 bond is necessary to ensure that
Norkunas will pay their costs, including their attorneys' fees, in
defending against Norkunas' frivolous appeal. Norkunas counters
that his appeal is not frivolous and suggests, without evidence,
that the Plaintiffs' motion is an act of retaliation against him.
Judge Stearns concurs with the Plaintiffs. He holds that any
argument Norkunas seeks to advance on appeal will be frivolous.
Pursuant to Federal Rule of Civil Procedure 23(e), a class member's
objections to a proposed settlement must "state with specificity
the grounds on which they are based." It follows then that an
objector to a class action settlement is only "allowed to appeal
that aspect of the district court's order that affects him -- the
district court's decision to disregard his objections."
Judge Stearns agrees with the Plaintiffs that both Norkunas'
written objections and verbal statements at the Fairness Hearing
failed to articulate any colorable arguments that would raise a
recognizable basis for an appeal. Further, any arguments that
Norkunas belatedly raised after the Fairness Hearing -- or, indeed,
for the first time on appeal -- are not timely and thus are
waived.
Nevertheless, Judge Stearns concludes that the two issues Norkunas
has signaled he is likely to appeal -- (1) the adequacy of the
City's issuance of notice under the Class Action Fairness Act
(CAFA) and (2) the Plaintiffs' Article III standing -- would be
fruitless even if they had been properly preserved. Technical
delays in a defendant's CAFA notice to state and federal officials
are excusable so long as "the substance of the requirements have
been satisfied insofar as giving those officials sufficient notice
and opportunity to be heard." Substantial compliance in such cases
has been achieved where final implementation of the class action
settlement is held in abeyance to allow the defendant time to issue
notice to the relevant state and federal officials.
In the case, Judge Stearns finds that the Court granted the
parties' request for a temporary suspension of the implementation
of the consent decree so that the City could provide proper CAFA
notice. The City sent notice to the necessary state and federal
authorities on Nov. 19 and 22, 2021, respectively, and the Court's
final order approving the settlement will be held in abeyance until
the statutory 90-day period for objections passes. If this period
passes without objection from state or federal agencies, the City
will have substantially complied with its notice requirements as
prescribed under CAFA.
Mr. Norkunas's standing arguments -- namely, that the Plaintiffs
did not properly allege injury and that they do not have standing
under the ADA or Section 504 to seek injunctive relief because they
did not encounter every sidewalk corner in the city -- are equally
without merit. First, the Complaint, coupled with the named
Plaintiffs' declarations, recounts numerous injuries suffered by
the named Plaintiffs because of the City's noncompliant curb ramp
policy and details how this noncompliance harms the entire class.
Second, there is no requirement that the named Plaintiffs must
encounter every barrier challenged in an ADA class action suit to
have standing.
Having determined that a Rule 7 bond is necessary to ensure that
Norkunas will reimburse the Plaintiffs for the cost of defending
against his frivolous appeal, Judge Stearns now considers the bond
amount sought by the Plaintiffs: $88,866.50. By balancing Norkunas'
statements concerning his financial limitations with the
Plaintiffs' anticipated financial burden in defending against a
frivolous appeal, he concludes that half of the Plaintiffs' sought
bond amount -- $44,433.25 -- is appropriate.
III. Conclusion
The Plaintiffs' motion to require posting of an appeal bond is
granted in part. Norkunas has until Feb. 15, 2022, to post a bond
in the amount of $44,433.25 to secure costs, including attorney's
fees, that will be payable to the Plaintiffs should they prevail on
appeal.
A full-text copy of the Court's Feb. 1, 2022 Memorandum & Order is
available at https://tinyurl.com/yckpv4hc from Leagle.com.
BOUTCHANTHARAJ CORP: Rattler-Bryceland Sues Over Unpaid Overtime
----------------------------------------------------------------
Diana Rattler-Bryceland and Phillip Randall Hampton on behalf of
themselves and all those similarly situated, Plaintiffs v.
Boutchantharaj Corp., d/b/a DFW Security Protective Force,
Defendant, Case No. 5:22-cv-00106-R (W.D. Okla., Feb. 4, 2022)
arises from the Defendant's alleged unlawful violations of
Plaintiffs' rights under the Fair Labor Standards Act of 1938 by
failing to pay proper overtime wages.
Ms. Rattler-Bryceland and Mr. Hampton, both individually named
Representative Plaintiffs, are employed by the Defendant as unarmed
security guard employees in the State of Oklahoma and had been
employed by Defendant since 2016 to present and August 2018 to
present, respectively.
Boutchantharaj Corp., d/b/a DFW Security Protective Force, was
founded in 2004. The company's line of business includes providing
detective, guard, and armored car services.[BN]
The Plaintiffs are represented by:
George J. McCaffrey, Esq.
MCCAFFREY & ASSOCIATES, PLLC
P.O. Box 23865
Oklahoma City, OK 73123
Telephone: (405) 767-3300
Facsimile: (405) 767-3309
E-mail: George@McCaffreyLegal.com
- and -
Joseph H. Gillespie, Esq.
GILLESPIE SANFORD LLP
4803 Gaston Ave.
Dallas, TX 75246
Telephone: (214) 800-5111
Facsimile: (214) 838-0001
E-mail: joe@gillespiesanford.com
BP EXPLORATION: Eastern District of Louisiana Dismisses Smith Suit
------------------------------------------------------------------
The U.S. District Court for the Eastern District of Louisiana
grants BP's motion for summary judgment and dismisses the lawsuit
styled WALLACE EDWARD SMITH v. BP EXPLORATION & PRODUCTION, INC.,
et al., SECTION M (1), Case No. 19-12880 (E.D. La.).
Before the Court is a motion by Defendants BP Exploration &
Production Inc. and BP America Production Co. (together, "BP") for
summary judgment.
The lawsuit is toxic-tort case arises out of the Deepwater Horizon
oil spill that occurred on April 20, 2010. On Jan. 11, 2013, U.S.
District Judge Carl J. Barbier, who presided over the multidistrict
litigation arising out of the Deepwater Horizon incident, approved
the Deepwater Horizon Medical Benefits Class Action Settlement
Agreement ("MSA"). See Brown v. BP Expl. & Prod. Inc., 2019 WL
2995869, at *1 (E.D. La. July 9, 2019). The MSA includes a Back-End
Litigation Option ("BELO") that permits certain class members, such
as clean-up workers, who follow procedures outlined in the MSA, to
sue BP for later-manifested physical conditions ("LMPC").
Mr. Smith was employed as a clean-up worker from April 2010 to
September 2010. On Sept. 30, 2019, he filed this action pursuant to
the MSA seeking compensation for his LMPC of prostate cancer, which
was diagnosed on Sept. 26, 2016. On Oct. 12, 2021, Wallace's former
counsel informed BP's counsel that Wallace was withdrawing his
previously designated expert witnesses. Shortly thereafter,
Wallace's counsel withdrew from the case and the Court stayed the
proceedings for 60 days to allow Wallace time to find new counsel.
Wallace did not obtain new counsel.
In its motion for summary judgment, BP argues that it is entitled
to summary judgment because Johnson cannot offer expert testimony
to prove that his alleged medical conditions were legally caused by
his exposure to substances related to the Deepwater Horizon oil
spill. Having withdrawn his experts, Smith cannot present the
expert testimony required to prove his claim. Thus, BP is entitled
to summary judgment in its favor.
The motion was set for submission on Jan. 27, 2022. Local Rule 7.5
of the U.S. District Court for the Eastern District of Louisiana
requires that a memorandum in opposition to a motion be filed no
later than eight days before the noticed submission date, which
deadline in this instance was Jan. 19, 2022. Plaintiff Wallace
Edward Smith, who is proceeding pro se, did not file an
opposition.
Accordingly, because the motion is unopposed and it appears to the
Court that the motion has merit, BP's motion for summary judgment
is granted, and Smith's claims are dismissed with prejudice.
A full-text copy of the Court's Order & Reasons dated Jan. 20,
2022, is available at https://tinyurl.com/4jx6tvne from
Leagle.com.
BROOK FURNITURE: Hedges Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Brook Furniture
Rental, Inc. The case is styled as Donna Hedges, on behalf of
herself and all other persons similarly situated v. Brook Furniture
Rental, Inc., Case No. 1:22-cv-01109 (S.D.N.Y., Feb. 8, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Brook Furniture -- https://www.bfr.com/ -- is the premier provider
of a complete offering of high-quality residential and commercial
rental furniture.[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
BROWN COUNTY: Weaver Sues Over Home Health Aides' Unpaid Overtime
-----------------------------------------------------------------
MICHELLE WEAVER, individually and on behalf of all others similarly
situated, Plaintiff v. BROWN COUNTY SENIOR CITIZENS COUNCIL,
Defendant, Case No. 1:22-cv-00070-SJD (S.D. Ohio, February 8, 2022)
is a class action against the Defendant for violations of the Fair
Labor Standards Act by failing to compensate the Plaintiff and
similarly situated home health aides overtime pay for all hours
worked in excess of 40 hours in a workweek.
Ms. Weaver was employed by the Defendant as a home health aide from
April 2014 to January 2022.
Brown County Senior Citizens Council is a home health agency based
in Ohio. [BN]
The Plaintiff is represented by:
Joseph F. Scott, Esq.
Ryan A. Winters, Esq.
Kevin M. McDermott II, Esq.
SCOTT & WINTERS LAW FIRM, LLC
The Caxton Building
812 Huron Rd. E., Suite 490
Cleveland, OH 44115
Telephone: (216) 912-2221
Facsimile: (216) 350-6313
E-mail: jscott@ohiowagelawyers.com
rwinters@ohiowagelawyers.com
kmcdermott@ohiowagelawyers.com
CANDID CARE: Scheduling Order Entered in Thomas FLSA Class Suit
---------------------------------------------------------------
In the class action lawsuit captioned as KEVIN THOMAS, v. CANDID
CARE CO., Case No. 2:21-cv-05472-EAS-KAJ (S.D. Ohio), the Hon.
Judge Kimberly A. Jolson entered an order vacating the preliminary
pretrial conference set for February 9, 2022, and adopting the
following schedule:
-- The parties shall exchange initial Feb. 11, 2022
disclosures by:
-- Any motion to amend the pleadings March 1, 2022
or to join additional parties shall
be filed by:
-- The motion for conditional class March 1, 2022
certification under the Fair :Labor
Standards Act (FLSA) shall be filed
by:
-- Discovery Procedures:
All discovery shall be completed by 200 days after the
Court's ruling on Plaintiff's Motion for conditional
certification if the Motion is denied, or 275 days after
the close of conditional certification notice period if the
Motion is granted. Any proposed protective order or
clawback agreement shall be filed with the Court by March
15, 2022.
-- Dispositive Motions:
Any dispositive motions shall be filed by 45 days after the
close of discovery.
-- Expert Reports:
Primary expert reports must be produced by 90 days after
the close of fact discovery. Rebuttal expert reports must
be produced by 60 days after primary expert reports are
produced. If the expert is specifically retained, the
reports must conform to Fed. R. Civ. P. 26(a)(2)(B), unless
otherwise agreed to by the parties. If the expert is not
specifically retained, the reports must conform to Fed. R.
Civ. P. 26(a)(2)(C), unless otherwise agreed to by the
parties.
-- Settlement:
The Plaintiff shall make a settlement demand by 30 days
after receiving the necessary time and payroll data to make
a settlement demand. Defendant shall respond within 30 days
after the Plaintiff's demand is made. The parties agree to
make a good faith effort to settle this case.
The Plaintiff brings class and collective claims against Defendant
for unpaid overtime under the FLSA and Ohio law. The Plaintiff
alleges that the Defendant did not properly pay him and other
employees for time spent performing work off the clock.
The Defendant denies all of Plaintiff's material allegations and
asserts the Defendant properly compensated the Plaintiff and other
putative class and collective members for all hours worked.
The Defendant also disputes that Representative Plaintiff and
opt-in Plaintiffs are similarly situated. There is a jury demand in
this case.
Candid Care manufactures dental equipment.
A copy of the Court's order dated Feb. 4, 2021 is available from
PacerMonitor.com at https://bit.ly/3gtU93x at no extra charge.[CC]
CDR MAGUIRE: Filing for Rule 23 Class Certification Due Sept. 23
----------------------------------------------------------------
In the class action lawsuit captioned as Barker v. CDR Maguire
Inc., Case No. 6:21-cv-01720 (D. Or.), the Hon. Judge Ann L. Aiken
entered an order on motion for extension of Discovery & PTO
Deadlines as follows:
-- Plaintiff's Motion for Rule 23 Sept. 23, 2022
Class Certification is due by:
-- The Defendant's Motion to Sept. 23, 2022
Decertify Fair Labor Standards
Act (FLSA) Collective Action is
due by:
The suit alleges violation of the FLSA involving denial of overtime
compensation.
CDR Maguire Inc. was founded in 1984. The company's line of
business includes providing professional architectural
services.[CC]
CENTRAL YETEV: Filing for Conditional/Class Cert. Bids Due May 4
----------------------------------------------------------------
In the class action lawsuit captioned as Corona Jurez, et al., v.
Central Yetev Lev DSatmar Meat, Inc., Case No. 1:21-cv-02633
(E.D.N.Y.), the Hon. Judge Sanket J. Bulsara entered an order
setting deadlines / hearings as follows:
-- The Plaintiffs may file any motion May 4, 2022
for conditional/class certification
by:
-- The Defendant may file any response June 4, 2022
by:
-- The Plaintiffs may file any reply June 25, 2022
brief by:
-- The deadline to complete depositions July 31, 2022
is:
-- The deadline to complete all discovery Sept. 15, 2022
is extended to:
-- The last date to take the first Oct. 15, 2022
step in dispositive motion practice
is extended to:
The suit alleges violation of the Fair Labor Standards Act.[CC]
CHURCHILL CORPORATE: Hedges Files ADA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Churchill Corporate
Services Inc. The case is styled as Donna Hedges, on behalf of
herself and all other persons similarly situated v. Churchill
Corporate Services Inc., Case No. 1:22-cv-01110 (S.D.N.Y., Feb. 8,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Churchill Corporate Services Inc., doing business as Churchill
Living -- https://www.churchillliving.com/ -- operates as
integrated relocation service provider and provides comfortable,
modern, temporary housing solutions at an unsurpassed level of
service.[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
COFFEE HOLDING: Indemnified Customer in Suit Over Coffee Volume
---------------------------------------------------------------
Coffee Holding Co. Inc. disclosed in its Form 8-K Annual Report
filed with the Securities and Exchange Commission on January 31,
2022, for the fiscal year ended October 31, 2021, that its
significant customer was named by a defendant in a putative class
action lawsuit filed in the United States District Court for the
District of Massachusetts on or about February 2, 2021, concerning
the labeling on private label coffee productions they sold to the
customer. Coffee Holding Co. Inc. has not been served with the
complaint.
The plaintiff, David Cohen, purporting to represent a class of
individuals who purchased coffee products from the company's
customer, generally allege that the customer sold private label
coffee products manufactured by the company which falsely described
the number of cups of coffee that could be made from the amount of
product purchased.
Coffee Holding Co. was not named as a defendant in the action, but
has agreed to indemnify the customer for the costs and expenses
incurred in defending the lawsuit and for any liability the
customer may suffer as a result. The complaint asserts a variety of
claims under Massachusetts consumer protection laws, and seeks
unspecified monetary damages as well as other forms of relief
including class certification, declaratory and injunctive relief,
attorneys' fees, and interest.
Coffee Holding Co. Inc. is an integrated wholesale coffee roaster
and dealer in New York.
COLLAGE.COM INC: Paguada Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Collage.com, Inc. The
case is styled as Josue Paguada, on behalf of himself and all
others similarly situated v. Collage.com, Inc., Case No.
1:22-cv-01089 (S.D.N.Y., Feb. 8, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Collage.com -- https://www.collage.com/ -- makes custom photo
products easy, with great deals and 50+ products.[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
COMMUNITY HEALTH: Young FDUTPA Suit Removed to M.D. Florida
-----------------------------------------------------------
The case styled PATRICIA YOUNG, individually and on behalf of all
others similarly situated v. COMMUNITY HEALTH SYSTEMS, INC., Case
No. 2022-CA-0004, was removed from the Circuit Court of the Fifth
Judicial Circuit in and for Hernando County, Florida, to the U.S.
District Court for the Middle District of Florida on February 8,
2022.
The Clerk of Court for the Middle District of Florida assigned Case
No. 8:22-cv-00329-SCB-AEP to the proceeding.
The case arises from the Defendant's alleged breach of contract and
violation of the Florida's Deceptive and Unfair Trade Practices Act
by charging the Plaintiff and Class members a hospital emergency
room visitation fee.
Community Health Systems, Inc. is a provider of general hospital
healthcare services, with its principal place of business in
Tennessee. [BN]
The Defendant is represented by:
Mahlon H. Barlow, Esq.
Joel R. Mohorter, Esq.
SIVYER BARLOW WATSON & HAUGHEY, P.A.
401 E. Jackson Street, Suite 2225
Tampa, FL 33602
Telephone: (813) 221-4242
Facsimile: (813) 227-8598
E-mail: mbarlow@sbwhlegal.com
jmohorter@sbwhlegal.com
COSWAY BEAUTY: Abreu Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Cosway Beauty Brands,
LLC. The case is styled as Luigi Abreu, individually, and on behalf
of all others similarly situated v. Cosway Beauty Brands, LLC, Case
No. 1:22-cv-01099 (S.D.N.Y., Feb. 8, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Cosway Beauty Brands -- http://www.coswayco.com/-- is a leading
beauty manufacturer overseeing NEUMA, Number 4 High Performance
Hair Care and recently acquired, ColorProof.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
MIZRAHI & KROUB LLP
200 Vesey St, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: jmizrahi@mizrahikroub.com
CR INTRINSIC: Court Grants SEC's Bid to Disburse Funds to Pay Fees
------------------------------------------------------------------
The U.S. District Court for the Southern District of New York
grants the Security and Exchange Commission's Motion to Disburse
Funds to Pay Fees and Expenses of Distribution Agent in the lawsuit
entitled SECURITIES AND EXCHANGE COMMISSION, Plaintiff v. CR
INTRINSIC INVESTORS, LLC, MATTHEW MARTOMA, and DR. SIDNEY GILMAN,
Defendants, And CR INTRINSIC INVESTMENTS, LLC, S.A.C. CAPITAL
ADVISORS, LLC, S.A.C. CAPITAL ASSOCIATES, LLC, S.A.C. INTERNATIONAL
EQUITIES, LLC, and S.AC. SELECT FUND, LLC, Relief Defendants, Case
No. 1:12-cv-8466(VM) (S.D.N.Y.).
The Clerk of the Court will issue a check on the Court Registry
Investment System ("CRIS") account under the case name designation
"SEC v. CR Intrinsic, et al." for the amount of $8,273.39 payable
to "Epiq Class Action & Claims Solutions" for the payment of fees
and expenses of the Distribution Agent. The check will contain the
notation "SEC v. CR Intrinsic, et al., Case No. 1:12-cv-08466-VM,
Invoices # 29315 and #29404.
The Clerk will send the check by overnight mail to:
Epiq Class Action & Claims Solutions
Dept. 0286
PO Box 120286
Dallas, TX 75312-0286
The Commission's counsel will provide the Clerk of the Court with
the necessary overnight shipping information and the SEC's billing
number.
The Clerk of the Court will terminate the pending motion at Docket
No. 285.
A full-text copy of the Court's Order dated Jan. 20, 2022, is
available at https://tinyurl.com/mcfus66p from Leagle.com.
CVS PHARMACY: Surratt Files Mislabeling Suit Over Infant Formula
----------------------------------------------------------------
Stephanie Surratt, individually and on behalf of all others
similarly situated v. CVS Pharmacy, Inc., Case No. 1:22-cv-00650
(S.D. Ill., Feb. 5, 2022) is a class action brought against the
Defendant for its alleged violation of the Illinois Consumer Fraud
and Deceptive Business Practices Act and the State Consumer Fraud
Acts. The lawsuit asserts breach of contract, breach of express
warranty, implied warranty of merchantability/fitness for a
particular purpose and Magnuson Moss Warranty Act, negligent
misrepresentation, fraud, and unjust enrichment.
According to the complaint, the Defendant manufactures, labels,
markets, and sells infant formula with iron to children between 9
and 18 months, identified as "Toddler Beginnings," under the CVS
Health brand. Allegedly, the Defendant's Toddler Beginnings is
advertised and marketed in a way that is similar and parallel to
its Infant Formula, through common and parallel labeling formats,
images, design, type size, fonts, claims, call-outs and graphics.
The representations further give the incorrect impression that the
Toddler Beginnings is what children should be fed in "next stage"
beyond infancy. The identical names mislead caregivers by not
telling them how the Product may differ from the Infant Formula.
Moreover, the Product's labeling is misleading because it displays
nutrition information via an infant formula panel, even though it
is not intended or recommended for infants, the suit contends.
CVS Pharmacy Inc. distributes pharmaceutical products. The Company
offers prescription, drugs, vitamins, beauty aids, diaper, health
supplement, and other medical products. CVS Pharmacy markets its
products throughout the United States.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Rd Ste 409
Great Neck, NY 11021
Telephone: (516) 268-7080
E-mail: spencer@spencersheehan.com
DASHING DIVA: Abreu Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Dashing Diva
Franchise Corp. The case is styled as Luigi Abreu, individually,
and on behalf of all others similarly situated v. Dashing Diva
Franchise Corp., Case No. 1:22-cv-01100 (S.D.N.Y., Feb. 8, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Dashing Diva Franchise Corp. -- https://dashingdiva.com/ --
produces cutting-edge artificial nails, nail wraps, nail tattoos,
fine gel polishes, and nail protection adhesives, to name a
few.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
MIZRAHI & KROUB LLP
200 Vesey St, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: jmizrahi@mizrahikroub.com
DAVIS & LANGDALE: Miller Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Davis & Langdale
Company, Inc. The case is styled as Kimberly Miller, on behalf of
herself and all other persons similarly situated v. Davis &
Langdale Company, Inc., Case No. 1:22-cv-01142 (S.D.N.Y., Feb. 9,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Davis & Langdale Company, Inc. -- http://www.davisandlangdale.com/
-- is an art gallery specializing in 19th and 20th century American
and British works.[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
DOCUSIGN INC: Weston Sues Over More Than 42% Drop of Stock Price
----------------------------------------------------------------
RICHARD R. WESTON, individually and on behalf of all others
similarly situated, Plaintiff v. DOCUSIGN, INC., DANIEL D.
SPRINGER, MICHAEL J. SHERIDAN, and CYNTHIA GAYLOR, Defendants, Case
No. 3:22-cv-00824 (N.D. Cal., February 8, 2022) is a class action
against the Defendants for violations of Sections 10(b) and 20(a)
of the Securities Exchange Act of 1934.
According to the complaint, the Defendants made materially false
and/or misleading statements about DocuSign's business and
operations with the Securities and Exchange Commission in order to
trade DocuSign securities at artificially inflated prices between
June 4, 2020 and December 2, 2021. Specifically, the Defendants
misrepresented and/or failed to disclose: (1) much of DocuSign's
accelerated growth in 2020 and early 2021 was attributable to
COVID-19 pandemic restrictions rather than a sustainable shift in
demand for the company's services; (2) demand for DocuSign's
services was, in fact, waning as COVID-19 pandemic restrictions
were being lifted; and (3) as a result, the Defendants' statements
about the company's business, operations, and prospects lacked a
reasonable basis.
When the truth emerged, the price of DocuSign common stock
plummeted $98.73 per share, or more than 42 percent, from a close
of $233.82 per share on December 2, 2021, to close at $135.09 per
share on December 3, 2021.
DocuSign, Inc. is a provider of electronic signatures services,
with principal executive offices in San Francisco, California.
[BN]
The Plaintiff is represented by:
Jennifer L. Joost, Esq.
KESSLER TOPAZ MELTZER & CHECK, LLP
One Sansome Street, Suite 1850
San Francisco, CA 94104
Telephone: (415) 400-3000
Facsimile: (415) 400-3001
E-mail: jjoost@ktmc.com
- and –
Naumon A. Amjed, Esq.
Darren J. Check, Esq.
Ryan T. Degnan, Esq.
Barbara A. Schwartz, Esq.
KESSLER TOPAZ MELTZER & CHECK, LLP
280 King of Prussia Road
Radnor, PA 19087
Telephone: (610) 667-7706
Facsimile: (610) 667-7056
E-mail: namjed@ktmc.com
dcheck@ktmc.com
rdegnan@ktmc.com
bschwartz@ktmc.com
ECHO GLOBAL: Cienega Labor Suit Transferred to N.D. Illinois
------------------------------------------------------------
In the class action lawsuit captioned as Aris Cienega, et al., v.
Echo Global Logistics, Inc., Case No. 2:21-cv-00533-KJM-JDP (E.D.
Cal.), the Court entered an order granting Echo Global's move to
transfer the Cienega case to the Northern District of Illinois.
Echo Global employed Aris Cienega and Zakeia Hampton as sales
representatives. Cienega is a resident of Sacramento County and
worked in Echo's Sacramento Office for two years. Hampton is a
resident of Clark County, Nevada and worked in the Chicago office
for about five months.
Cienega and Hampton allege they "consistently worked more than 8
hours per day and more than 40 hours per workweek without receiving
overtime compensation for all the hours they worked." They claim
Echo had a policy of "depriving the plaintiffs of their earned
overtime wages." They bring this action alleging Echo violated
federal, California and Illinois law and "seek to recover unpaid
overtime compensation and other damages for [themselves] and
similarly situated co-workers." They identify three classes and
collectives:
1. The Fair Labor Standards Act (FLSA) Collective Action
claims, brought under the Fair Labor Standards Act, 29
U.S.C. section 216(b), on behalf of those who "worked for
Echo as an exempt-classified Sales Representative
nationwide since December 11, 2016."
2. California Class Allegations, brought on behalf of "all
exempt-classified Sales Representatives who are or have
been employed by Echo in the State of California at any
time since December 11, 2015."
3. Illinois Class Allegations, brought on behalf of "all
exempt-classified Sales Representatives who are or have
been employed by Echo in the State of Illinois at any time
since December 11, 2015."
Echo Global provides technology-enabled business process
outsourcing (BPO) for transportation and logistics.
A copy of the Court's order dated Feb. 4, 2021 is available from
PacerMonitor.com at https://bit.ly/3J9RGrj at no extra charge.[CC]
ENBRIDGE INC: Class Status Bid Filing Due Nov. 11
-------------------------------------------------
In the class action lawsuit captioned as BHK Realty, LLC, et al.,
v. Enbridge, Inc., et al., Case No. 1:19-cv-00642 (D.R.I.), the
Hon. Judge John J. Mcconnell, Jr. entered a scheduling order as
follows:
-- Plaintiff Expert Disclosures shall July 29, 2022
be made by:
-- The Defendant Expert Disclosures Aug. 26, 2022
shall be made by:
-- All Expert Discovery to be Sept. 30, 2022
completed by:
-- The Plaintiffs Deadline to file Nov. 11, 2022
Class Certification Motion:
-- The Defendants Deadline for Jan. 14, 2023
Opposition to Class Certification
Motion:
-- The Plaintiffs Deadline for Reply Jan. 28, 2023
in Support of Class Certification
Motion:
Enbridge is a multinational pipeline company headquartered in
Calgary, Alberta, Canada.
The nature of suit states real property -- torts to land.[CC]
ENVISION HEALTHCARE: Parties in "Linde" Seek to Amend Sched Order
-----------------------------------------------------------------
In the class action lawsuit captioned as NORMA LINDE, individually,
and on behalf of all others similarly situated, v. ENVISION
HEALTHCARE CORP., EMCARE HOLDINGS, INC., and KANSAS EM-I MEDICAL
SERVICES, P.A., Case No. 2:20-cv-02661-HLT-TJJ (D. Kan.), the
Parties ask the Court to enter an order amending the Phase I
Amended Scheduling Order and extending the foregoing deadlines by
30 days such that the new deadlines would be as follows:
-- a. Conditional certification and March 16, 2022
class certification motion
shall be filed by:
-- b. Response to motion for April 15, 2022
conditional and class
certification shall be
filed by:
-- c. Reply in support of conditional May 6, 2022
and class certification shall
be filed by:
-- d. Mediation notice or confidential March 16, 2022
settlement reports shall be
jointly filed by:
-- e. Mediation shall be completed by: May 30, 2022
Envision Healthcare is an American healthcare company and national
hospital-based physician group.
EmCare is an American provider of physician practice management
services for emergency departments, inpatient physician services or
hospitals, acute care surgery, trauma and general surgery, women's
and children's services, radiology / teleradiology programs and
anesthesiology services.
A copy of the Parties' motion dated Feb. 4, 2021 is available from
PacerMonitor.com at https://bit.ly/3HCSGEe at no extra charge.[CC]
The Plaintiff is represented by:
George A. Hanson, Esq.
Alexander T. Ricke, Esq.
Caleb J. Wagner, Esq.
STUEVE SIEGEL HANSON LLP
460 Nichols Road, Suite 200
Kansas City, MO 64112
Telephone: (816) 714-7100
Facsimile: (816) 714-7101
E-mail: hanson@stuevesiegel.com
ricke@stuevesiegel.com
wagner@stuevesiegel.com
- and -
Frankie J. Forbes, Esq.
FORBES LAW GROUP, LLC
6900 College Boulevard, Suite 840
Overland Park, KS 66211
Telephone: (913) 341-8600
Facsimile: (913) 341-8606
E-mail: fforbes@forbeslawgroup.com
The Defendants are represented by:
Robert Chipman, Esq.
Denise E. Giraudo, Esq.
Jenna N. Mennona, Esq.
Brian Murphy, Esq.
SHEPPARD, MULLIN, RICHTER & HAMPTON, LLP
1901 Avenue of the Stars, Suite 1600
Los Angeles, CA 90067
Telephone: (310) 228-3724
Facsimile: (310) 228-3977
E-mail: bchipman@sheppardmullin.com
dgiraudo@sheppardmullin.com
jmennona@sheppardmullin.com
bmurphy@sheppardmullin.com
EQT CORP: Third Circuit Grants Petition to Appeal in Laudato Suit
-----------------------------------------------------------------
The United States Court of Appeals for the Third Circuit grants
EQT's petition to appeal in the lawsuit entitled DOMENIC LAUDATO,
JR. v. EQT CORPORATION; EQUITRANS, L.P.; EQT PRODUCTION COMPANY;
EQM MIDSTREAM PARTNERS, L.P., Petitioners, Case No. 21-8047 (3d
Cir.).
Before the Court is the Petition to Appeal Under Rule 23(f) of the
Federal Rules of Civil Procedure filed by EQT Corp., Equitrans,
L.P., EQT Production Co., and EQM Midstream Partners, L.P.
(collectively, "EQT").
I.
On July 30, 2018, roughly 100 Pennsylvania landowners filed a
class-action complaint against EQT alleging that EQT has been
storing natural gas in six separate storage fields, thereby,
utilizing the landowners' underground pore space without providing
them due compensation. The complaint alleged that EQT injects
natural gas into naturally occurring geologic formations consisting
of porous and permeable rock on the Plaintiffs' properties when
demand is low and withdraws it when demand is high.
In May 2020, all landowners except for Domenic Laudato, Jr.,
voluntarily dismissed their claims without prejudice. And in
February 2021, Laudato moved for class certification, seeking
approval of a class defined as:
All persons and/or entities that own and/or owned real
property--and/or natural gas storage rights to real
property--located within the certificated boundaries of one
or more of the Gas Storage Fields for any period of time not
before Defendants' inception of the respective gas storage
field, but to whom Defendants have and had failed to
compensate for natural gas storage rights within the
respective field(s) for the entirety of time of real
property or natural gas rights ownership.
The District Court agreed with Laudato that it would seem in
everyone's best interests to resolve this case on a class basis,
and declared that class certification will be granted, with
instructions, Order at 1, Asbury v. EQT Corp., No. 2:18-cv-01005-CB
(W.D. Pa. Sept. 29, 2021). But it rejected Laudato's proposed class
definition, thereby, refusing to grant other downstream requests,
such as appointment as class representative, appointment of class
counsel, and certain issues' certification.
The District Court then directed the parties to meet and confer
regarding the establishment of an appropriate class definition. The
instant Petition followed.
II.
The District Court exercised federal-question jurisdiction over
claims under the Natural Gas Act, as codified at 15 U.S.C. Sections
717-17z, and supplemental jurisdiction over other, related claims.
The District Court's order is not a final order, so any exercise by
this Court of jurisdiction over an appeal would be founded in 28
U.S.C. Section 1292(e), through the invocation of Federal Rule of
Civil Procedure 23(f), says Circuit Judge D. Brooks Smith, writing
for the Panel. Rule 23(f) permits appeals "from an order granting
or denying class-action certification under this rule, but not from
an order under Rule 23(e)(1)." If the District Court's order is not
countenanced by Rule 23(f) nor by any other rule, this Court would
lack interlocutory jurisdiction.
Mr. Laudato argues that the Petition should be denied because this
Court would not have jurisdiction to hear an appeal of the District
Court's order, which--he argues--is not a Rule 23 grant or denial
of class-action certification. According to Laudato, a plain text
reading of the District Court's order in this matter reveals that
it falls well short of an appealable certification order under Rule
23(f). But if the order granted class-action certification, Judge
Smith holds that the Court will not shield it from review just
because it "falls well short of" the requirements of such an order.
Here, the order clearly stated a grant of class certification.
For example, Judge Smith explains, Laudato focuses on the
"preliminary" nature of the District Court's order and places
significant weight on such language: it will grant certification;
an ultimate class-certification order is forthcoming; etc. Despite
the forward-looking language, however, the District Court plainly
contemplated that any subsequent certification order would be
limited to merely redefining the class. And to the extent Laudato
tries to reframe the order as simple case management--directing the
parties to meet and confer--the District Court also made clear that
the order contained its final word on certification itself, leaving
only the action of summarily adopting whatever reasonable proposal
might arise from the parties' conference.
Accordingly, Judge Smith holds that the order clearly implicates
Rule 23(f) and the Court can properly exercise its jurisdiction.
III.
Next, the Court turns to the standard for permitting a Rule 23(f)
appeal. Rule 23(f) states only that a court of appeals may permit
an appeal from an order granting or denying class-action
certification under Federal Rule of Civil Procedure 23, but not
from an order under Rule 23(e)(1). The Committee Notes from Rule
23's 1998 amendment describe this permission as granting something
akin to the discretion exercised by the Supreme Court in acting on
a petition for certiorari and as giving courts of appeals
"unfettered discretion.
Despite the Rules Committee's descriptions of the breadth of
discretion accorded by Rule 23(f), Laudato argues that the
permission must be construed narrowly as an exception to the
final-judgment rule, citing this Court's opinion in Liberty
Lincoln-Mercury, Inc. v. Ford Motor Co., 562 F.3d 553 (3d Cir.
2009).
But Liberty Lincoln concerned an attempted end-around the final
judgment rule through exercise of pendant jurisdiction over a
partial summary judgment order alongside a preliminary injunction,
not class-action certification, Judge Smith holds. Regardless,
Laudato would have this Court limit its discretion to only those
"rare" cases that justify taking jurisdiction in interlocutory
appeals.
Contrary to the more limited approaches some other circuits
utilize, the Court exercises its "very broad discretion" using a
more liberal standard, Judge Smith notes, citing Rodriguez v. Nat'l
City Bank, 726 F.3d 372, 376-77 (3d Cir. 2013).
EQT argues that the Court should allow the appeal for three
reasons. First, review is necessary to correct the district court's
manifest and fundamental errors at this pivotal moment in this
putative class action. Second, review will enable the Court to
re-emphasize the need for a rigorous analysis of all of the Rule 23
requirements based on the legal elements of the claims and the
parties' evidence, and clarify that conditional certification of an
undefined class pending the parties' joint formulation of a
satisfactory class definition is improper. And third, the usual
pressure to settle inherent in a grant of class certification is
magnified here by the court's avowed effort to leverage
certification to drive Defendants to settle.
The Court agrees with EQT that interlocutory review is appropriate.
Contrary to Laudato's assertion, a class-action-certification order
that leaves unresolved a crucial element--the class definition--is
no less likely to exert substantial pressure on a defendant to
settle than a standard class-action-certification order. Further,
an appeal would present the Court with an opportunity to facilitate
development of the law on class certification.
Because of the apparent pressure the purported certification places
on EQT to settle and the Court's opportunity to facilitate
development of the law on class certification, review of the
District Court's order is appropriate under Rodriguez, Judge Smith
holds.
IV.
For these reasons, the Petition for Permission to Appeal Under Rule
23(f) will be granted. Any such appeal shall be retained by this
panel. After docketing the appeal, the Clerk will issue an order
advising the parties that the Court is considering summary action.
The parties will be given an opportunity to file arguments in
support of or in opposition to summary action.
A full-text copy of the Court's Opinion dated Jan. 20, 2022, is
available at https://tinyurl.com/4rf9ap9m from Leagle.com.
Lucas Liben -- lliben@reedsmith.com -- Devin M. Misour --
dmisour@reedsmith.com -- Nicolle R. Snyder Bagnell --
nbagnell@reedsmith.com -- Colin E. Wrabley --
cwrabley@reedsmith.com -- Reed Smith LLP, 225 Fifth Avenue, Suite
1200, in Pittsburgh, Pennsylvania 15222, Counsel for the
Petitioners.
Jordan H. Walker -- jordan@landownerattorneys.com -- Sever Storey,
881 Third Avenue, Southwest, Suite 101, in Carmel, Indiana 46032,
Counsel for the Respondent.
EUROMARKET DESIGNS: Ghazaryan Seeks to Certify Class, Subclass
--------------------------------------------------------------
In the class action lawsuit captioned as LUSINE GHAZARYAN, as an
individual, on behalf of herself, all others similarly situated,
and the general public, v. EUROMARKET DESIGNS, INC. d/b/a CRATE &
BARREL, an Illinois Corporation; and DOES 1 through 10, inclusive,
Case No. 2:21-cv-05658-PA-AFM (C.D. Cal.), the Plaintiff asks the
Court to enter an order:
1. certifying the following class/collective(s):
-- National Class
"All persons and entities within the United States who
purchased or will purchase products from Crate & Barrel,
on or after Defendant placed the products into the
stream of commerce;" and
-- California Subclass
"All persons and entities who purchased or will purchase
products from Crate & Barrel in California, on or after
the date Defendant placed the products into the stream
of commerce;"
2. appointing the Plaintiff as representative of the Class;
and
3. appointing following firm as Class Counsel pursuant to Fed.
R. Civ. P. 23(g): The Margarian Law Firm.
According to the complaint, the Defendant Crate & Barrel engages in
a scheme to defraud its customers by perpetually discounting
merchandise sold in its store and on its website. Crate & Barrel
constantly advertises the merchandise by attaching a price tag to
the time with a false reference price and a corresponding sale
price immediately following the reference price.
The suggested retail price indicates to the consumer that the
reference price is a former price of the item that is now being
offered at a substantial discount. The reference price conveys to
the customer the purported regular price or former price of the
item. The sale price conveys to the customer a deeply discounted
price at which the item is presently being offered for sale.
Plaintiff's investigation of Crate & Barrel revealed that the
merchandise sold at Crate & Barrel bears a price tag with a false
reference price and a substantially discounted sale price printed
directly beneath the "crossed out" reference price. The Plaintiff's
investigation confirmed that the product Ghazaryan purchased, the
Breville Barista Express Espresso Machine, was priced with a false
reference price and corresponding discounted price in the 90-day
period immediately preceding Plaintiff's purchase.
Euromarket, doing business as Crate & Barrel, provides household
consumer products.
A copy of the Plaintiff's motion to certify class dated Feb. 7,
2021 is available from PacerMonitor.com at https://bit.ly/3rJtbeZ
at no extra charge.[CC]
The Plaintiff is represented by:
Hovanes Margarian, Esq.
Armen Margarian, Esq.
Shushanik Margarian, Esq.
THE MARGARIAN LAW FIRM
801 North Brand Boulevard, Suite 210
Glendale, CA 91203
Telephone: (818) 553-1000
E-mail: hovanes@margarianlaw.com
armen@margarianlaw.com
shushanik@margarianlaw.com
FLORIDA INTERNATIONAL: Underpays Security Guards, Rodriguez Says
----------------------------------------------------------------
RAUL VIDAL RODRIGUEZ, individually and on behalf of all others
similarly situated, Plaintiff v. FLORIDA INTERNATIONAL ENTERPRISES
LLC, Defendant, Case No. 1:22-cv-20398 (S.D. Fla., February 8,
2022) is a class action against the Defendant for violation of the
Fair Labor Standards Act by failing to compensate the Plaintiff and
similarly situated security guards overtime pay for all hours
worked in excess of 40 hours in a workweek.
The Plaintiff worked for the Defendant as a security guard from
November 2017 through January 24, 2022.
Florida International Enterprises LLC is a provider of freight
forwarding services doing business in Florida. [BN]
The Plaintiff is represented by:
Daniel T. Feld, Esq.
DANIEL T. FELD, P.A.
2847 Hollywood Blvd.
Hollywood, FL 33020
Telephone: (954) 361-8383
E-mail: Danielfeld.esq@gmail.com
- and –
Isaac Mamane, Esq.
MAMANE LLC
10800 Biscayne Blvd., Suite 650
Miami, FL 331624
Telephone: (305) 773-6662
E-mail: mamane@gmail.com
FPA VILLA: Wins Summary Judgment vs Lawrence
--------------------------------------------
In the class action lawsuit captioned as JUSTIN LAWRENCE,
individually and on behalf of all others similarly situated, v. FPA
VILLA DEL LAGO, LLC, and TRINITY PROPERTY CONSULTANTS, LLC, Case
No. e 8:20-cv-01517-VMC-JSS (M.D. Fla.),
the Hon. Judge Virginia M. Hernandez-Covington entered an order:
1. granting the Defendants FPA Villa Del Lago and Trinity
Property Consultants' motion for summary judgment;
2. denying as moot the Plaintiff's motion for class
certification;
3. denying the Plaintiff's motion to amend scheduling order;
4. directing the Clerk to enter judgment in favor of the
Defendants and against the Plaintiff Justin Lawrence as to
all claims in the third amended complaint; and
5. directing the Clerk to terminate any deadlines, deny any
outstanding motions as moot, and close the case.
The Court said, "Having found summary judgment appropriate on each
of Plaintiff's claims, the Court need not address the issue of
class certification. District courts have discretion to consider
the merits of a case before deciding whether to certify a class.
See Glasser v. Hilton Grand Vacations Co., LLC., 341 F. Supp. 3d
1305, 1314 (M.D. Fla. 2018) (declining to rule on plaintiff's
motion for class certification after finding that defendant was
entitled to summary judgment on all claims). And where the
underlying claims lack merit, the district court is within its
discretion to deny a motion for class certification as moot. See
Telfair v. First Union Mortg. Corp., 216 F.3d 1333, 1343 (11th
Cir.2000) ("With no meritorious claims, certification of those
claims as a class action is moot. Because we agree with the
bankruptcy and district courts' disposition of the merits of
Telfair's claims, we also affirm the denial of the motion for
class.") Thus, the Plaintiff's motion for class certification is
denied as moot."
FPA Villa Del Lago "owns and operates The Social 2700, a private
student housing community in Tallahassee, Florida." Trinity
Property manages The Social 2700. The Social 2700 offers two- and
four-bedroom apartments.
On April 27, 2019, Lawrence -- a student at Tallahassee Community
College -- signed a lease at The Social 2700. The lease agreement
includes various provisions related to termination of the lease and
the use of amenities. Of note, the lease agreement provides that
Lawrence would not be released from his rental payment obligations
for voluntarily or involuntarily leaving school, that Lawrence
would be obligated to continue to pay all rent if he moved out
early and until his apartment was re-leased, and that The Social
2700 maintains the discretion to close its amenities.
Lawrence's lease term was set to run from August 20, 2019, through
July 31, 2020. In March 2020, "Lawrence returned home to his
mother's apartment in Tampa, Florida, for spring break." Because of
the rapid spread of COVID-19, Lawrence then decided that he would
not return to The Social 2700.
A copy of the Court's order dated Feb. 4, 2021 is available from
PacerMonitor.com at https://bit.ly/34JjpAs at no extra charge.[CC]
FREELAND ENTERPRISES: Scott Balks at Drivers' Unreimbursed Expenses
-------------------------------------------------------------------
Adam Scott, on behalf of himself and those similarly situated,
Plaintiff v. Freeland Enterprises, Inc., Dick Freeland, Deanna
Freeland, Todd Hollman, Tyler Freeland, John Doe Corporation 1-10,
John Doe 1-10, Defendants, Case No. 1:22-cv-00043 (N.D. Ind., Feb.
4, 2022) arises from the Defendants' alleged violations of the Fair
Labor Standards Act and Indiana law by failing to adequately
reimburse delivery drivers for their delivery-related expenses,
thereby failing to pay delivery drivers the legally mandated
minimum wage wages for all hours worked.
Mr. Scott worked as a delivery driver at Defendants' Pizza Hut
store in Fort Wayne, Indiana, from September 2019 to August 2021.
Freeland Enterprises, Inc. operates Pizza Hut Pizza franchises in
the U.S.[BN]
The Plaintiff is represented by:
Michael P. Misch, Esq.
Myra R. Reid, Esq.
ANDERSON, AGOSTINO & KELLER, P.C.
131 South Taylor
South Bend, IN 46601
Telephone: (574) 288-1510
Facsimile: (574) 288-1650
GENWORTH LIFE: Filing of Class Cert. Bid Extended to June 27
------------------------------------------------------------
In the class action lawsuit captioned as McMillan v. Genworth Life
and Annuity Insurance Company, Case No. 1:21-cv-00091 (D. Or.), the
Hon. Judge Michael J. Mcshane entered an order on motion for
extension of time.
-- Motion for Class Certification is June 27, 2022
to be filed by:
-- Response is due by: Aug. 29, 2022
-- Reply is due by: Oct. 28, 2022.
The nature of suit states contract – insurance.
Genworth is a stock life insurance company.[CC]
GEORGIA: King, et al., Seek to Certify Prompt Appeal Class
----------------------------------------------------------
In the class action lawsuit captioned as VON KING, DANIELLE
JOHNSON, CHELSEA SHAW, JOY FLOWERS, SUSAN KOLYNO, JACQUELINE
PERKINS, ARTHUR WILLIAMS, and JANE/JOHN DOE 1-9, on behalf of
themselves and all others similarly situated, v. STATE OF GEORGIA,
GEORGIA DEPARTMENT OF LABOR, and COMMISSIONER MARK BUTLER, in his
official capacity, Case No. 1:21-cv-03082-JPB (N.D. Ga.), the
Plaintiffs Von King, Jacqueline Perkins, Joy Flowers and Does 7-9
ask the Court to enter an order certifying the Prompt Appeal Class
under Federal Rule of Civil Procedure 23(a) and (b)(2), defined as
follows:
"All individuals who (a) have been partially or totally
unemployed between March 1, 2020, and the present; (b) have
applied for unemployment benefits distributed by the Georgia
Department of Labor; (c) received an initial determination
that they were ineligible; (d) filed a timely appeal; (e) did
not receive an appellate hearing and determination within
four weeks of their initial determination; and (f) are still
awaiting a hearing or determination."
The Georgia Department of Labor is an administrative agency of the
U.S. state of Georgia.
A copy of the Plaintiff's motion to certify class dated Feb. 4,
2021 is available from PacerMonitor.com at https://bit.ly/3B8oG0E
at no extra charge.[CC]
The Plaintiffs are represented by:
Jason J. Carter, Esq.
Juliana Mesa, Esq.
BONDURANT, MIXSON & ELMORE
1201 West Peachtree Street, N.W.
Atlanta, GA 30309-3417
Telephone: (404) 881-4100
- and -
Emily C.R. Early, Esq.
Miriam F. Gutman, Esq.
THE SOUTHERN POVERTY
LAW CENTER
P.O. Box 1287
Decatur, GA 30031-1287
Telephone: (404) 521-6700
GIB'S DISTRIBUTION: Abreu Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Gib's Distribution
LLC. The case is styled as Luigi Abreu, individually, and on behalf
of all others similarly situated v. Gib's Distribution LLC, Case
No. 1:22-cv-01102-LJL (S.D.N.Y., Feb. 8, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Gibs Distribution LLC offers personal grooming products for men,
namely, cosmetic hair and skin care preparations.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
MIZRAHI & KROUB LLP
200 Vesey St, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: jmizrahi@mizrahikroub.com
GLOBAL PIPELINE: Faces Guerrero Suit Over Laborers' Unpaid Wages
----------------------------------------------------------------
MIGUEL GUERRERO, ALONSO DE SANTIAGO, ADAN SANDOVAL, JULIO BOCARDO
MARTINEZ, JOSE ENRIQUE ZAMORA ESPINOZA, ANTONIO GUERRERO, and
DANIEL SANCHEZ LOPEZ, on behalf of themselves and all others
similarly situated, Plaintiffs v. GLOBAL PIPELINE, LLC and VINCENT
GARZA, Defendants, Case No. 7:22-cv-00021 (W.D. Tex., February 8,
2022) is a class action against the Defendants for unpaid minimum
and overtime wages in violation of the Fair Labor Standards Act.
The Plaintiffs worked for the Defendants as laborers from November
3, 2021 until December 3, 2021.
Global Pipeline, LLC is a design, construction, and commissioning
oil and gas pipeline provider doing business in Texas. [BN]
The Plaintiffs are represented by:
Melissa Moore, Esq.
Curt Hesse, Esq.
MOORE & ASSOCIATES
Lyric Centre
440 Louisiana Street, Suite 1110
Houston, TX 77002-1063
Telephone: (713) 222-6775
Facsimile: (713) 222-6739
E-mail: melissa@mooreandassociates.net
curt@mooreandassociates.net
GM NAMEPLATE: Faces Ochoa Wage-and-Hour Suit in California
----------------------------------------------------------
ISRAEL R. OCHOA, individually and on behalf of all others similarly
situated, Plaintiff v. GM NAMEPLATE, INC.; RANDSTAD NORTH AMERICA,
INC.; BRUCE CLECKLEY, and DOES 1 through 100, inclusive,
Defendants, Case No. 22CV394147 (Cal. Super., Santa Clara Cty.,
February 8, 2022) is a class action against the Defendants for
violations of the California Labor Code and the California's
Business and Professions Code including failure to pay overtime
wages, failure to pay minimum wages, failure to provide meal
periods, failure to provide rest periods, failure to timely pay
wages, failure to provide accurate wage statements, and unfair
competition.
The Plaintiff worked for the Defendants as a non-exempt employee
from early May of 2021 until late May of 2021.
GM Nameplate, Inc. is a manufacturer specializing in the custom
design and manufacture of product identification components,
headquartered in Seattle, Washington.
Randstad North America, Inc. is an engineering services company,
headquartered in Atlanta, Georgia. [BN]
The Plaintiff is represented by:
David D. Bibiyan, Esq.
Jeffrey D. Klein, Esq.
Sara Keane, Esq.
BIBIYAN LAW GROUP, P.C.
8484 Wilshire Boulevard, Suite 500
Beverly Hills, CA 90211
Telephone: (310) 438-5555
Facsimile: (310) 300-1705
E-mail: david@tomorrowlaw.com
jeff@tomorrowlaw.com
skeane@tomorrowlaw.com
GREAT AIR: Paguada Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Great Air, Inc. The
case is styled as Josue Paguada, on behalf of himself and all
others similarly situated v. Great Air, Inc., Case No.
1:22-cv-01088 (S.D.N.Y., Feb. 8, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Great Air, Inc. -- http://greatair.com.au/-- offers heating and
air conditioning services.[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
GUNS DOT COM: Paguada Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Guns Dot Com, LLC.
The case is styled as Josue Paguada, on behalf of himself and all
others similarly situated v. Guns Dot Com, LLC, Case No.
1:22-cv-01087 (S.D.N.Y., Feb. 8, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Guns.com -- https://www.guns.com/ -- is the easiest place to buy
firearms online.[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
HABERMAASS CORPORATION: Paguada Files ADA Suit in S.D. New York
---------------------------------------------------------------
A class action lawsuit has been filed against Habermaass
Corporation, Inc. The case is styled as Josue Paguada, on behalf of
himself and all others similarly situated v. Habermaass
Corporation, Inc., Case No. 1:22-cv-01091 (S.D.N.Y., Feb. 8,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Habermaass -- http://www.habausa.com/-- offer phenomenal
collections of kid's toys online that encourage early development,
promote learning, and stimulate imaginations.[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
IBM CORP: 2nd Cir. Affirms Dismissal of Estle Discrimination Suit
-----------------------------------------------------------------
In the lawsuit captioned as STEVEN ESTLE, MARGARET AHLDERS, LANCE
SALONIA, CHERYL WITMER, Plaintiffs-Appellants v. INTERNATIONAL
BUSINESS MACHINES CORPORATION, Defendant-Appellee, Case No. 20-3372
(2d Cir.), the United States Court of Appeals for the Second
Circuit affirms the district court's judgment granting IBM's motion
to dismiss.
The Plaintiffs are former IBM employees, who entered into severance
agreements in which they agreed not to join any collective actions
against IBM asserting claims under the Age Discrimination in
Employment Act of 1967 ("ADEA"), 29 U.S.C. Sections 621-634. The
Plaintiffs sued IBM to challenge the validity of those
collective-action waivers, arguing that they were not "knowing and
voluntary" because IBM failed to make certain disclosures to them
as required for the waiver of "any right or claim" under the ADEA.
The district court (Gardephe, J.) granted IBM's motion to dismiss
for failure to state a claim, and the Plaintiffs appealed.
I. Background
In May 2016, Defendant IBM terminated Plaintiffs Steven Estle,
Margaret Ahlders, Lance Salonia, and Cheryl Witmer, all of whom
were 56 or 57 years old at the time, as part of a reduction in
force. IBM offered a severance package to the Plaintiffs that
included a lump-sum payment equal to one month's salary, six to
twelve months of health and life insurance coverage, career
counseling services, and reimbursement for job-related skills
training. In exchange, each Plaintiff agreed to sign a separation
agreement containing a collective-action waiver. Each Plaintiff
signed the separation agreement.
The Plaintiffs sued IBM in the U.S. District Court for the Southern
District of New York seeking a declaration that the
collective-action waiver in the separation agreement is invalid
under the ADEA and an injunction barring IBM from enforcing the
waiver against the Plaintiffs. IBM moved to dismiss for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6), and
the district court granted the motion.
The district court relied on 14 Penn Plaza to conclude that--"for
purposes of Section 626(f)--'right' means a 'substantive right'"
and, because it determined that "the right to bring a collective
action is not a substantive right," the district court held that
the "Plaintiffs' collective action waiver does not waive a 'right'
for purposes of Section 626(f). The Plaintiffs timely appealed.
II. Discussion
The ADEA generally prohibits employment discrimination on the basis
of an employee's age. In 1990, Congress amended the ADEA by passing
the Older Workers Benefit Protection Act ("OWBPA"), which provides
that an individual may not waive any right or claim under the ADEA
unless the waiver is knowing and voluntary. And if a waiver is
requested in connection with an exit incentive or other employment
termination program offered to a group or class of employees, the
employer must provide certain information to the individual for the
waiver to be "knowing and voluntary."
Specifically, this information consists of: (i) any class, unit, or
group of individuals covered by such program, any eligibility
factors for such program, and any time limits applicable to such
program; and (ii) the job titles and ages of all individuals
eligible or selected for the program, and the ages of all
individuals in the same job classification or organizational unit
who are not eligible or selected for the program.
IBM did not provide the Plaintiffs with this information before
they signed the separation agreement containing the
collective-action waiver. That waiver is enforceable, then, only if
"any right or claim" in Section 626(f)(1) does not include the
ability to initiate or participate in collective actions under the
ADEA, Circuit Judge Michael Hun Park states.
The Panel's analysis in the case flows directly from the Supreme
Court's decision in 14 Penn Plaza LLC v. Pyett, 556 U.S. 247
(2009). The issue there was "whether a provision in a
collective-bargaining agreement that clearly and unmistakably
requires union members to arbitrate claims arising under the [ADEA]
is enforceable." The Court held that it was.
Judge Park holds that the result in this case is governed by 14
Penn Plaza: The phrase "right or claim" as used in Section
626(f)(1) is limited to substantive rights and does not include
procedural ones. And collective action, like arbitration, is a
procedural mechanism, not a substantive right.
A collective-action waiver is, thus, not a waiver of any "right or
claim" under the ADEA that triggers the requirements of 29 U.S.C.
Section 626(f)(1), Judge Park opines. The Plaintiffs may still
bring ADEA age discrimination claims individually, and the fact
that they may not pursue them as collective actions does not mean
that they have waived the substantive rights or claims themselves.
The Plaintiffs argue that the Supreme Court's interpretation of
Section 626(f)(1) in 14 Penn Plaza is nonbinding dicta. The Court
of Appeals disagrees. For one, the Court's interpretation of
Section 626(f)(1) was essential to distinguishing its holding in 14
Penn Plaza from its earlier, incorrect dicta in Alexander v.
Gardner-Denver Co., 415 U.S. 36 (1974). Further, the Court's
determination that the requirements of Section 626(f)(1) did not
apply to waivers of procedural rights was necessary to its
conclusion that a collective bargaining agreement's prospective
waiver of union members' right to bring ADEA claims in court is
enforceable.
If the "knowing and voluntary" waiver requirements applied to both
substantive and procedural rights, the union-negotiated arbitration
agreement would have been unenforceable because it was not made by
the individual and it was prospective, Judge Park opines.
The Court of Appeals sees no reason to deviate from the Court's
unambiguous interpretation of Section 626(f)(1), which is
consistent with the decision of every court of appeals to consider
the issue.
Finally, the Court of Appeals is unpersuaded by the Plaintiffs'
remaining arguments. The Plaintiffs argue that the plain meaning of
"any right or claim" in Section 626(f)(1) is not limited to
"substantive" rights and must include collective action, which the
ADEA "explicitly identifies" as a right.
The Plaintiffs' argument based on the ADEA's apparent endorsement
of a right to collective action is unpersuasive, Judge Park holds.
After all, the ADEA also identifies a right to a jury trial.
Nevertheless, the Court in 14 Penn Plaza construed "right or claim"
in Section 626(f)(1) as referring to substantive rights and
concluded that they did not include the right to a judicial forum
and, hence, did not include a right to a jury trial. To the extent
that the ADEA also identifies a collective-action right, the
Plaintiffs fail to explain why it should be treated differently
from the right to a jury trial, Judge Park points out.
The Plaintiffs' appeal to legislative purpose is likewise
unavailing, Judge Park finds. The Plaintiffs have pointed to
nothing in the legislative history showing a clear intention of
Congress that would support a result other than the one reached
here.
III. Conclusion
For the reasons set forth, the district court's judgment is
affirmed.
A full-text copy of the Court's Opinion dated Jan. 20, 2022, is
available at https://tinyurl.com/3hcpm9ra from Leagle.com.
DAVID G. WEBBERT, Johnson, Webbert & Garvan, LLP, in Augusta, Maine
(Carol J. Garvan, Shelby Leighton, Johnson, Webbert & Garvan, LLP,
in Augusta, Maine; Joseph M. Sellers -- jsellers@cohenmilstein.com
-- Shaylyn Cochran -- scochran@cohenmilstein.com -- Cohen Milstein
Sellers & Toll PLLC, in Washington, D.C.; Jeffrey Neil Young --
jyoung@solidarity.law -- Solidarity Law, in Cumberland, Maine, on
the brief), for the Plaintiffs-Appellants.
MATTHEW W. LAMPE -- mwlampe@jonesday.com -- Jones Day, in New York
City (Traci L. Lovitt -- tlovitt@jonesday.com -- Jones Day , in New
York City; Alison B. Marshall -- abmarshall@jonesday.com -- Jones
Day, in Washington, D.C., on the brief), for the
Defendant-Appellee.
INSPIRED BEAUTY: Abreu Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Inspired Beauty
Brands, Inc. The case is styled as Luigi Abreu, individually, and
on behalf of all others similarly situated v. Inspired Beauty
Brands, Inc., Case No. 1:22-cv-01098 (S.D.N.Y., Feb. 8, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Inspired Beauty Brands, Inc. -- https://www.inspiredbeauty.com/ --
is a beauty product supplier in New York City, New York.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
MIZRAHI & KROUB LLP
200 Vesey St, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: jmizrahi@mizrahikroub.com
IT'S A NEW 10: Abreu Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against It's a New 10, LLC.
The case is styled as Luigi Abreu, individually, and on behalf of
all others similarly situated v. It's a New 10, LLC, Case No.
1:22-cv-01103 (S.D.N.Y., Feb. 8, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
It's a New 10 -- https://itsa10haircare.com/ -- is dedicated to
providing high-quality, luxury hair care products for every hair
type.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
MIZRAHI & KROUB LLP
200 Vesey St, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: jmizrahi@mizrahikroub.com
ITRIA VENTURES: InvenTel.tv Sues Over Misrepresentation of Loans
----------------------------------------------------------------
INVENTEL.TV LLC and YASIR ABDUL, individually and on behalf of all
others similarly situated, Plaintiffs v. ITRIA VENTURES LLC,
BIZ2CREDIT INC., JOHN DOES 1-10, Defendants, Case No. 1:22-cv-01059
(S.D.N.Y., February 8, 2022) is a class action against the
Defendants for fraud, civil usury, criminal usury, violation of New
York General Business Law and the Racketeer Influenced and Corrupt
Organizations Act, extortion, theft by false pretenses, breach of
contract, unfair business practices.
The case arises from the Defendants' unlawful business practice of
fraudulently misrepresenting loans as financing agreements. The
Defendants often advertise and market such loans to their customers
as future receivables purchases that the customers only need to pay
back to Itria from a percentage of future receivables, and
importantly, if there are insufficient future receivables the funds
do not need to be paid back. However, Itria actually assumes no
such risk and deems all funds loaned to be due and payable under
all conditions, without respect to the amount of future receivables
along with criminally usurious interest rates. As a result of the
Defendants' pattern of racketeering activity, the Plaintiffs and
Class members of sustained damages, says the suit.
InvenTel.tv LLC is a direct response television marketing company,
with a principal place of business at 200 Forge Way, Unit 1,
Rockaway, New Jersey.
Itria Ventures LLC is a provider of financial services, with a
principal place of business at One Penn Plaza, Suite 4530, New
York, New York.
Biz2Credit Inc. is a provider of financial services, with a
principal place of business at One Penn Plaza, Suite 4530, New
York, New York. [BN]
The Plaintiffs are represented by:
Jeffrey Lubin, Esq.
INVENTEL.TV
200 Forge Way, Unit 1
Rockaway, NJ 07866
Tel: (973) 531-4423
Email: jeff@inventel.tv
JPMORGAN CHASE: Class in Dennis Suit Under Deal With ANZ Certified
------------------------------------------------------------------
In the case, RICHARD DENNIS, SONTERRA CAPITAL MASTER FUND, LTD.,
FRONTPOINT FINANCIAL SERVICES FUND, L.P., FRONTPOINT ASIAN EVENT
DRIVEN FUND, L.P., FRONTPOINT FINANCIAL HORIZONS FUND, L.P., AND
ORANGE COUNTY EMPLOYEES RETIREMENT SYSTEM on behalf of themselves
and all others similarly situated, Plaintiffs v. JPMORGAN CHASE &
CO., JPMORGAN CHASE BANK, N.A., JPMORGAN CHASE BANK, N.A. AUSTRALIA
BRANCH, BNP PARIBAS, S.A., BNP PARIBAS, AUSTRALIA BRANCH, THE ROYAL
BANK OF SCOTLAND GROUP PLC, THE ROYAL BANK OF SCOTLAND PLC, RBS
N.V., RBS GROUP (AUSTRALIA) PTY LIMITED, UBS AG, UBS AG, AUSTRALIA
BRANCH, AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD., COMMONWEALTH
BANK OF AUSTRALIA, NATIONAL AUSTRALIA BANK LIMITED, WESTPAC BANKING
CORPORATION, DEUTSCHE BANK AG, DEUTSCHE BANK AG, AUSTRALIA BRANCH,
HSBC HOLDINGS PLC, HSBC BANK AUSTRALIA LIMITED, LLOYDS BANKING
GROUP PLC, LLOYDS BANK PLC, LLOYDS TSB BANK PLC, AUSTRALIA,
MACQUARIE GROUP LTD., MACQUARIE BANK LTD., ROYAL BANK OF CANADA,
RBC CAPITAL MARKETS LLC, ROYAL BANK OF CANADA, AUSTRALIA BRANCH,
MORGAN STANLEY, MORGAN STANLEY AUSTRALIA LIMITED, CREDIT SUISSE
GROUP AG, CREDIT SUISSE AG, ICAP PLC, ICAP AUSTRALIA PTY LTD.,
TULLETT PREBON PLC, TULLETT PREBON (AUSTRALIA) PTY LTD., AND JOHN
DOES NOS. 1-50, Defendants, Docket No. 16-cv-06496 (LAK)
(S.D.N.Y.), Judge Lewis A. Kaplan of the U.S. District Court for
the Southern District of New York grants the Representative
Plaintiffs' Consolidated Motion for Conditional Class Certification
for Purposes of Class Action Settlement with Defendant Australia
and New Zealand Banking Group Ltd.
The action comes before the Court on the Representative Plaintiffs'
Motion and on the Stipulation and Agreement of Settlement as to
Defendant Australia and New Zealand Banking Group Ltd. ("ANZ")
dated Dec. 10, 2021, entered into by the Representative Plaintiffs
and ANZ in the Action.
Judge Kaplan has reviewed the Motion, Settlement Agreement, and
attached exhibits, which set forth the terms and conditions for a
proposed settlement of and for dismissal of the Action with
prejudice as against ANZ upon the terms and conditions set forth
therein. He has read and considered the Stipulation and the
attached exhibits and finds that the Motion should be granted.
In the Action only and solely for purposes of the Settlement, the
Court: (i) has personal jurisdiction over the Representative
Plaintiffs and ANZ, and (ii) subject matter jurisdiction over the
Action to consider the Settlement Agreement and all exhibits
thereto.
For purposes of settlement only, pursuant to Fed. R. Civ. P. 23(a)
and (b)(3), Judge Kaplan certifies a Settlement Class consisting
of: all Persons (including both natural persons and entities) who
purchased, acquired, sold, held, traded, or otherwise had any
interest in, BBSW-Based Derivatives during the period Jan. 1, 2003
through Aug. 16, 2016, inclusive, provided that, if the
Representative Plaintiffs expand the putative or certified class in
the Action in or through any subsequent amended complaint, class
motion, or Other Settlement, the defined Settlement Class in the
Order and the Settlement Agreement will be expanded so as to be
coterminous with such expansion.
Judge Kaplan appoints Lowey Dannenberg, P.C. and Lovell Stewart
Halebian Jacobson LLP as the Class Counsel to such Settlement Class
for purposes of the Settlement. He also appoints Citibank N.A as
the Escrow Agent for purposes of the Settlement Fund defined in the
Settlement Agreement. He preliminarily approves the establishment
of the Settlement Fund as qualified settlement funds pursuant to
Section 468B of the Internal Revenue Code of 1986, as amended, and
the Treasury Regulations promulgated thereunder.
Plaintiffs Richard Dennis and Orange County Employees Retirement
System ("OCERS") will serve as the representatives of such
Settlement Class for purposes of the Settlement.
The timing, plan, and Rims of the Class Notice to the Settlement
Class and the date of the Fairness Hearing before the Court to
consider any member(s) of the Settlement Class's objections to
final approval of the Settlement and to consider the Unless,
adequacy and reasonableness of the proposed Settlement and
Settlement Agreement will all be determined by separate order of
the Court.
At a later date, the Class Counsel will submit for the Court's
approval a proposed plan of distribution of the Settlement Funds.
The civil action was commenced after Feb. 18, 2005. Judge Kaplan
directs ANZ to notify the appropriate Federal and State officials
under the Class Action Fairness Act of 2005, 28 U.S.C. Section 1715
("CAFA"). The counsel for ANZ shall, at or before the Fairness
Hearing, file with the Court proof of compliance with CAFA.
All proceedings in the Action as to ANZ, other than proceedings as
may be necessary to implement the proposed Settlement or to
effectuate the terms of the Settlement Agreement, are stayed and
suspended until further order of the Court. Pending determination
of whether the Settlement should be approved, the Representative
Plaintiffs, the Class Counsel and the Settlement Class Members are
barred and enjoined from commencing or prosecuting any Released
Claims against any of the Released Persons.
All funds held by the Escrow Agent will be deemed and considered to
be in custodial legis of the Court, and will remain subject to the
jurisdiction of the Court, until such time as such funds will be
distributed pursuant to the Settlement Agreement, returned to the
Person(s) paying the same pursuant to the Settlement Agreement
and/or further order(s) of the Court.
Judge Kaplan orders ANZ to produce documents to the Representative
Plaintiffs consistent with and solely to the extent of its
cooperation obligations provided in Section 5 of the Settlement
Agreement.
If any deadline falls on a Saturday, Sunday or legal holiday, such
deadline will be extended until the next Business Day that is not a
Saturday, Sunday or legal holiday.
A full-text copy of the Court's Feb. 1, 2022 Order is available at
https://tinyurl.com/2u3kj2k3 from Leagle.com.
JPMORGAN CHASE: Class in Dennis Suit Under Deal With CBA Certified
------------------------------------------------------------------
In the case, RICHARD DENNIS, SONTERRA CAPITAL MASTER FUND, LTD.,
FRONTPOINT FINANCIAL SERVICES FUND, L.P., FRONTPOINT ASIAN EVENT
DRIVEN FUND, L.P., FRONTPOINT FINANCIAL HORIZONS FUND, L.P., AND
ORANGE COUNTY EMPLOYEES RETIREMENT SYSTEM, on behalf of themselves
and all others similarly situated, Plaintiffs v. JPMORGAN CHASE &
CO., JPMORGAN CHASE BANK, N.A., JPMORGAN CHASE BANK, N.A. AUSTRALIA
BRANCH, BNP PARIBAS, S.A., BNP PARIBAS, AUSTRALIA BRANCH, THE ROYAL
BANK OF SCOTLAND GROUP PLC, THE ROYAL BANK OF SCOTLAND PLC, RBS
N.V., RBS GROUP (AUSTRALIA) PTY LIMITED, UBS AG, UBS AG, AUSTRALIA
BRANCH, AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD., COMMONWEALTH
BANK OF AUSTRALIA, NATIONAL AUSTRALIA BANK LIMITED, WESTPAC BANKING
CORPORATION, DEUTSCHE BANK AG, DEUTSCHE BANK AG, AUSTRALIA BRANCH,
HSBC HOLDINGS PLC, HSBC BANK AUSTRALIA LIMITED, LLOYDS BANKING
GROUP PLC, LLOYDS BANK PLC, LLOYDS TSB BANK PLC, AUSTRALIA,
MACQUARIE GROUP LTD., MACQUARIE BANK LTD., ROYAL BANK OF CANADA,
RBC CAPITAL MARKETS LLC, ROYAL BANK OF CANADA, AUSTRALIA BRANCH,
MORGAN STANLEY, MORGAN STANLEY AUSTRALIA LIMITED, CREDIT SUISSE
GROUP AG, CREDIT SUISSE AG, ICAP PLC, ICAP AUSTRALIA PTY LTD.,
TULLETT PREBON PLC, TULLETT PREBON (AUSTRALIA) PTY LTD., AND JOHN
DOES NOS. 1-50, Defendants, Docket No. 16-cv-06496 (LAK)
(S.D.N.Y.), Judge Lewis A. Kaplan of the U.S. District Court for
the Southern District of New York grants the Consolidated Motion
for Conditional Class Certification for Purposes of Class Action
Settlement with Commonwealth Bank of Australia.
The action comes before the Court on the Representative Plaintiffs'
Motion and on the Stipulation and Agreement of Settlement as to
Defendant Commonwealth Bank of Australia ("CBA") dated Dec. 10,
2021, entered into by the Representative Plaintiffs and CBA in the
Action.
Judge Kaplan has reviewed the Motion, Settlement Agreement, and
attached exhibits, which set forth the terms and conditions for a
proposed settlement of and for dismissal of the Action with
prejudice as against CBA upon the terms and conditions set forth
therein. He has read and considered the Stipulation and the
attached exhibits and finds that the Motion should be granted.
In the Action only and solely for purposes of the Settlement, the
Court: (i) has personal jurisdiction over the Representative
Plaintiffs and CBA, and (ii) subject matter jurisdiction over the
Action to consider the Settlement Agreement and all exhibits
thereto.
For purposes of settlement only, pursuant to Fed. R. Civ. P. 23(a)
and (b)(3), Judge Kaplan certifies a Settlement Class consisting
of: all Persons (including both natural persons and entities) who
purchased, acquired, sold, held, traded, or otherwise had any
interest in, BBSW-Based Derivatives during the period Jan. 1, 2003
through Aug. 16, 2016, inclusive, provided that, if the
Representative Plaintiffs expand the putative or certified class in
the Action in or through any subsequent amended complaint, class
motion, or Other Settlement, the defined Settlement Class in the
Order and the Settlement Agreement will be expanded so as to be
coterminous with such expansion.
Judge Kaplan appoints Lowey Dannenberg, P.C. and Lovell Stewart
Halebian Jacobson LLP as the Class Counsel to such Settlement Class
for purposes of the Settlement. He also appoints Citibank N.A as
the Escrow Agent for purposes of the Settlement Fund defined in the
Settlement Agreement. He preliminarily approves the establishment
of the Settlement Fund as qualified settlement funds pursuant to
Section 468B of the Internal Revenue Code of 1986, as amended, and
the Treasury Regulations promulgated thereunder.
Plaintiffs Richard Dennis and Orange County Employees Retirement
System ("OCERS") will serve as the representatives of such
Settlement Class for purposes of the Settlement.
The timing, plan, and Rims of the Class Notice to the Settlement
Class and the date of the Fairness Hearing before the Court to
consider any member(s) of the Settlement Class's objections to
final approval of the Settlement and to consider the Unless,
adequacy and reasonableness of the proposed Settlement and
Settlement Agreement will all be determined by separate order of
the Court.
At a later date, the Class Counsel will submit for the Court's
approval a proposed plan of distribution of the Settlement Funds.
The civil action was commenced after Feb. 18, 2005. Judge Kaplan
directs CBA to notify the appropriate Federal and State officials
under the Class Action Fairness Act of 2005, 28 U.S.C. Section 1715
("CAFA"). The counsel for CBA will, at or before the Fairness
Hearing, file with the Court proof of compliance with CAFA.
All proceedings in the Action as to CBA, other than proceedings as
may be necessary to implement the proposed Settlement or to
effectuate the terms of the Settlement Agreement, are stayed and
suspended until further order of the Court. Pending determination
of whether the Settlement should be approved, the Representative
Plaintiffs, the Class Counsel and the Settlement Class Members are
barred and enjoined from commencing or prosecuting any Released
Claims against any of the Released Persons.
All funds held by the Escrow Agent will be deemed and considered to
be in custodial legis of the Court, and will remain subject to the
jurisdiction of the Court, until such time as such funds will be
distributed pursuant to the Settlement Agreement, returned to the
Person(s) paying the same pursuant to the Settlement Agreement
and/or further order(s) of the Court.
Judge Kaplan orders CBA to produce documents to the Representative
Plaintiffs consistent with and solely to the extent of its
cooperation obligations provided in Section 5 of the Settlement
Agreement.
If any deadline falls on a Saturday, Sunday or legal holiday, such
deadline will be extended until the next Business Day that is not a
Saturday, Sunday or legal holiday.
A full-text copy of the Court's Feb. 1, 2022 Order is available at
https://tinyurl.com/rwukxa62 from Leagle.com.
JPMORGAN CHASE: Class in Dennis Suit Under Morgan Deal Certified
----------------------------------------------------------------
In the case, RICHARD DENNIS, SONTERRA CAPITAL MASTER FUND, LTD.,
FRONTPOINT FINANCIAL SERVICES FUND, L.P., FRONTPOINT ASIAN EVENT
DRIVEN FUND, L.P., FRONTPOINT FINANCIAL HORIZONS FUND, L.P., AND
ORANGE COUNTY EMPLOYEES RETIREMENT SYSTEM, on behalf of themselves
and all others similarly situated, Plaintiffs v. JPMORGAN CHASE &
CO., JPMORGAN CHASE BANK, N.A., JPMORGAN CHASE BANK, N.A. AUSTRALIA
BRANCH, BNP PARIBAS, S.A., BNP PARIBAS, AUSTRALIA BRANCH, THE ROYAL
BANK OF SCOTLAND GROUP PLC, THE ROYAL BANK OF SCOTLAND PLC, RBS
N.V., RBS GROUP (AUSTRALIA) PTY LIMITED, UBS AG, UBS AG, AUSTRALIA
BRANCH, AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD., COMMONWEALTH
BANK OF AUSTRALIA, NATIONAL AUSTRALIA BANK LIMITED, WESTPAC BANKING
CORPORATION, DEUTSCHE BANK AG, DEUTSCHE BANK AG, AUSTRALIA BRANCH,
HSBC HOLDINGS PLC, HSBC BANK AUSTRALIA LIMITED, LLOYDS BANKING
GROUP PLC, LLOYDS BANK PLC, LLOYDS TSB BANK PLC, AUSTRALIA,
MACQUARIE GROUP LTD., MACQUARIE BANK LTD., ROYAL BANK OF CANADA,
RBC CAPITAL MARKETS LLC, ROYAL BANK OF CANADA, AUSTRALIA BRANCH,
MORGAN STANLEY, MORGAN STANLEY AUSTRALIA LIMITED, CREDIT SUISSE
GROUP AG, CREDIT SUISSE AG, ICAP PLC, ICAP AUSTRALIA PTY LTD.,
TULLETT PREBON PLC, TULLETT PREBON (AUSTRALIA) PTY LTD., AND JOHN
DOES NOS. 1-50, Defendants, Docket No. 16-cv-06496 (LAK)
(S.D.N.Y.), Judge Lewis A. Kaplan of the U.S. District Court for
the Southern District of New York grants the Consolidated Motion
for Conditional Class Certification for Purposes of Class Action
Settlement with Defendants Morgan Stanley and Morgan Stanley
Australia Limited, collectively, "Morgan Stanley."
The parties to the Stipulation and Agreement of Settlement as to
Morgan Stanley dated Oct. 1, 2021 entered into by Representative
Plaintiffs and Morgan Stanley in the Action. The parties have
previously applied for an order conditionally certifying a
Settlement Class as to Morgan Stanley Settlement on Dec. 10, 2021.
The parties have executed an Amendment to the Settlement Agreement
dated Jan. 13, 2022.
Judge Kaplan has reviewed the Motion, the Settlement Agreement and
attached exhibits, and the Amendment and attached exhibits, which
set forth the terms and conditions for a proposed settlement of and
for dismissal of the Action with prejudice as against Morgan
Stanley upon the terms and conditions set forth therein. He finds
that the Motion should be granted.
In the Action only and solely for purposes of the Settlement, the
Court: (i) has personal jurisdiction over the Representative
Plaintiffs and Morgan Stanley, and (ii) subject matter jurisdiction
over the Action to consider the Settlement Agreement and all
exhibits thereto.
For purposes of settlement only, pursuant to Fed. R. Civ. P. 23(a)
and (b)(3), Judge Kaplan certifies a Settlement Class consisting
of: all Persons (including both natural persons and entities) who
purchased, acquired, sold, held, traded, or otherwise had any
interest in, BBSW-Based Derivatives during the period Jan. 1, 2003
through Aug. 16, 2016, inclusive, provided that, if the
Representative Plaintiffs expand the putative or certified class in
the Action in or through any subsequent amended complaint, class
motion, or Other Settlement, the defined Settlement Class in the
Order and the Settlement Agreement will be expanded so as to be
coterminous with such expansion.
Judge Kaplan appoints Lowey Dannenberg, P.C. and Lovell Stewart
Halebian Jacobson LLP as the Class Counsel to such Settlement Class
for purposes of the Settlement. He also appoints Citibank N.A as
the Escrow Agent for purposes of the Settlement Fund defined in the
Settlement Agreement. He preliminarily approves the establishment
of the Settlement Fund as qualified settlement funds pursuant to
Section 468B of the Internal Revenue Code of 1986, as amended, and
the Treasury Regulations promulgated thereunder.
Plaintiffs Richard Dennis and Orange County Employees Retirement
System ("OCERS") will serve as the representatives of such
Settlement Class for purposes of the Settlement.
The timing, plan, and Rims of the Class Notice to the Settlement
Class and the date of the Fairness Hearing before the Court to
consider any member(s) of the Settlement Class's objections to
final approval of the Settlement and to consider the Unless,
adequacy and reasonableness of the proposed Settlement and
Settlement Agreement will all be determined by separate order of
the Court.
At a later date, the Class Counsel will submit for the Court's
approval a proposed plan of distribution of the Settlement Funds.
The civil action was commenced after Feb. 18, 2005. Judge Kaplan
directs Morgan Stanley to notify the appropriate Federal and State
officials under the Class Action Fairness Act of 2005, 28 U.S.C.
Section 1715 ("CAFA"). The counsel for Morgan Stanley shall, at or
before the Fairness Hearing, file with the Court proof of
compliance with CAFA.
All proceedings in the Action as to Morgan Stanley, other than
proceedings as may be necessary to implement the proposed
Settlement or to effectuate the terms of the Settlement Agreement,
are stayed and suspended until further order of the Court. Pending
determination of whether the Settlement should be approved, the
Representative Plaintiffs, the Class Counsel and the Settlement
Class Members are barred and enjoined from commencing or
prosecuting any Released Claims against any of the Released
Persons.
All funds held by the Escrow Agent will be deemed and considered to
be in custodial legis of the Court, and will remain subject to the
jurisdiction of the Court, until such time as such funds will be
distributed pursuant to the Settlement Agreement, returned to the
Person(s) paying the same pursuant to the Settlement Agreement
and/or further order(s) of the Court.
Judge Kaplan orders Morgan Stanley to produce documents to the
Representative Plaintiffs consistent with and solely to the extent
of its cooperation obligations provided in Section 5 of the
Settlement Agreement.
If any deadline falls on a Saturday, Sunday or legal holiday, such
deadline will be extended until the next Business Day that is not a
Saturday, Sunday or legal holiday.
A full-text copy of the Court's Feb. 1, 2022 Order is available at
https://tinyurl.com/2ef3xvwm from Leagle.com.
JPMORGAN CHASE: Class in Dennis Suit Under NAB Accord Certified
---------------------------------------------------------------
In the case, RICHARD DENNIS, SONTERRA CAPITAL MASTER FUND, LTD.,
FRONTPOINT FINANCIAL SERVICES FUND, L.P., FRONTPOINT ASIAN EVENT
DRIVEN FUND, L.P., FRONTPOINT FINANCIAL HORIZONS FUND, L.P., AND
ORANGE COUNTY EMPLOYEES RETIREMENT SYSTEM on behalf of themselves
and all others similarly situated, Plaintiffs v. JPMORGAN CHASE &
CO., JPMORGAN CHASE BANK, N.A., JPMORGAN CHASE BANK, N.A. AUSTRALIA
BRANCH, BNP PARIBAS, S.A., BNP PARIBAS, AUSTRALIA BRANCH, THE ROYAL
BANK OF SCOTLAND GROUP PLC, THE ROYAL BANK OF SCOTLAND PLC, RBS
N.V., RBS GROUP (AUSTRALIA) PTY LIMITED, UBS AG, UBS AG, AUSTRALIA
BRANCH, AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD., COMMONWEALTH
BANK OF AUSTRALIA, NATIONAL, AUSTRALIA BANK LIMITED, WESTPAC
BANKING CORPORATION, DEUTSCHE BANK AG, DEUTSCHE BANK AG, AUSTRALIA
BRANCH, HSBC HOLDINGS PLC, HSBC BANK AUSTRALIA LIMITED, LLOYDS
BANKING GROUP PLC, LLOYDS BANK PLC, LLOYDS TSB BANK PLC, AUSTRALIA,
MACQUARIE GROUP LTD., MACQUARIE BANK LTD., ROYAL BANK OF CANADA,
RBC CAPITAL MARKETS LLC, ROYAL BANK OF CANADA, AUSTRALIA BRANCH,
MORGAN STANLEY, MORGAN STANLEY AUSTRALIA LIMITED, CREDIT SUISSE
GROUP AG, CREDIT SUISSE AG, ICAP PLC, ICAP AUSTRALIA PTY LTD.,
TULLETT PREBON PLC, TULLETT PREBON (AUSTRALIA) PTY LTD., AND JOHN
DOES NOS. 1-50, Defendants, Docket No. 16-cv-06496 (LAK)
(S.D.N.Y.), Judge Lewis A. Kaplan of the U.S. District Court for
the Southern District of New York grants the Plaintiffs'
Consolidated Motion for Conditional Class Certification for the
purposes of class action settlement with Defendant National
Australia Bank Limited.
The action comes before the Court on the Plaintiffs' Motion and on
the Stipulation and Agreement of Settlement as to Defendant NAB
dated Dec. 10, 2021, entered into by Representative the Plaintiffs
and NAB in the Action.
Judge Kaplan has reviewed the Motion, Settlement Agreement, and
attached exhibits, which set forth the terms and conditions for a
proposed settlement of and for dismissal of the Action with
prejudice as against NAB upon the terms and conditions set forth
therein. He finds that the Motion should be granted.
For purposes of settlement only, pursuant to Fed. R. Civ. P. 23(a)
and (b)(3), Judge Kaplan certifies a Settlement Class consisting
of: all Persons (including both natural persons and entities) who
purchased, acquired, sold, held, traded, or otherwise had any
interest in, BBSW-Based Derivatives during the period Jan. 1, 2003
through Aug. 16, 2016, inclusive, provided that, if the
Representative Plaintiffs expand the putative or certified class in
thes Action in or through any subsequent amended complaint, class
motion, or Other Settlement, the defined Settlement Class in the
Order and the Settlement Agreement will be expanded so as to be
coterminous with such expansion.
Judge Kaplan appoints Lowey Dannenberg, P.C. and Lovell Stewart
Halebian Jacobson LLP as the Class Counsel to such Settlement Class
for purposes of the Settlement. He also appoints Citibank N.A as
the Escrow Agent for purposes of the Settlement Fund defined in the
Settlement Agreement. He preliminarily approves the establishment
of the Settlement Fund as qualified settlement funds pursuant to
Section 468B of the Internal Revenue Code of 1986, as amended, and
the Treasury Regulations promulgated thereunder.
Plaintiffs Richard Dennis and Orange County Employees Retirement
System ("OCERS") will serve as the representatives of such
Settlement Class for purposes of the Settlement.
The timing, plan, and Rims of the Class Notice to the Settlement
Class and the date of the Fairness Hearing before the Court to
consider any member(s) of the Settlement Class's objections to
final approval of the Settlement and to consider the Unless,
adequacy and reasonableness of the proposed Settlement and
Settlement Agreement will all be determined by separate order of
the Court.
At a later date, the Class Counsel will submit for the Court's
approval a proposed plan of distribution of the Settlement Funds.
The civil action was commenced after Feb. 18, 2005. Judge Kaplan
directs NAB to notify the appropriate Federal and State officials
under the Class Action Fairness Act of 2005, 28 U.S.C. Section 1715
("CAFA"). The counsel for NAB shall, at or before the Fairness
Hearing, file with the Court proof of compliance with CAFA.
All proceedings in the Action as to NAB, other than proceedings as
may be necessary to implement the proposed Settlement or to
effectuate the terms of the Settlement Agreement, are stayed and
suspended until further order of the Court. Pending determination
of whether the Settlement should be approved, the Representative
Plaintiffs, the Class Counsel and the Settlement Class Members are
barred and enjoined from commencing or prosecuting any Released
Claims against any of the Released Persons.
All funds held by the Escrow Agent will be deemed and considered to
be in custodial legis of the Court, and will remain subject to the
jurisdiction of the Court, until such time as such funds will be
distributed pursuant to the Settlement Agreement, returned to the
Person(s) paying the same pursuant to the Settlement Agreement
and/or further order(s) of the Court.
Judge Kaplan orders NAB to produce documents to the Representative
Plaintiffs consistent with and solely to the extent of its
cooperation obligations provided in Section 5 of the Settlement
Agreement.
If any deadline falls on a Saturday, Sunday or legal holiday, such
deadline will be extended until the next Business Day that is not a
Saturday, Sunday or legal holiday.
A full-text copy of the Court's Feb. 1, 2022 Order is available at
https://tinyurl.com/2zt46b7u from Leagle.com.
JPMORGAN CHASE: Class Notice of Dennis Settlement With Westpac OK'd
-------------------------------------------------------------------
In the case, RICHARD DENNIS, SONTERRA CAPITAL MASTER FUND, LTD.,
FRONTPOINT FINANCIAL SERVICES FUND, L.P., FRONTPOINT ASIAN EVENT
DRIVEN FUND, L.P., FRONTPOINT FINANCIAL HORIZONS FUND, L.P., AND
ORANGE COUNTY EMPLOYEES RETIREMENT SYSTEM, on behalf of themselves
and all others similarly situated, Plaintiffs v. JPMORGAN CHASE &
CO., JPMORGAN CHASE BANK, N.A., BNP PARIBAS, S.A., THE ROYAL BANK
OF SCOTLAND GROUP PLC, THE ROYAL BANK OF SCOTLAND PLC, RBS N.V.,
RBS GROUP (AUSTRALIA) PTY LIMITED, UBS AG, AUSTRALIA AND NEW
ZEALAND BANKING GROUP LTD., COMMONWEALTH BANK OF AUSTRALIA,
NATIONAL AUSTRALIA BANK LIMITED, WESTPAC BANKING CORPORATION,
DEUTSCHE BANK AG, HSBC HOLDINGS PLC, HSBC BANK AUSTRALIA LIMITED,
LLOYDS BANKING GROUP PLC, LLOYDS BANK PLC, MACQUARIE GROUP LTD.,
MACQUARIE BANK LTD., ROYAL BANK OF CANADA, RBC CAPITAL MARKETS LLC,
MORGAN STANLEY, MORGAN STANLEY AUSTRALIA LIMITED, CREDIT SUISSE,
GROUP AG, CREDIT SUISSE AG, ICAP PLC, ICAP AUSTRALIA PTY LTD.,
TULLETT PREBON PLC, TULLETT PREBON (AUSTRALIA) PTY LTD., AND JOHN
DOES NOS. 1-50, Defendants, Docket No. 16-cv-06496 (LAK)
(S.D.N.Y.), Judge Lewis A. Kaplan of the U.S. District Court for
the Southern District of New York grants the Representative
Plaintiffs' Motion for an Order Approving Class Notice Plan and
Scheduling Hearing for Final Approval of the Settlement with
Defendant Westpac Banking Corp.
Except for the terms expressly defined therein, Judge Kaplan adopts
and incorporates the definitions in the Stipulation and Agreement
of Settlement with Westpac dated March 1, 2021, as amended on Jan.
13, 2022 (Exhibit 6 to the Joint Declaration of Vincent Briganti
and Christopher McGrath, dated Jan. 13, 2022).
A Fairness Hearing will be held on a date of the Court's
convenience on Oct. 13, 2022, at 4:00 p.m. The foregoing date,
time, and place of the Fairness Hearing will be set forth in the
Class Notice, which is ordered therein, but will be subject to
adjournment or change by the Court without further notice to the
Settlement Class Members, other than that which may be posted at
the Court or on the Settlement Website at www.BBSWSettlement.com.
The Court reserves the right to approve the Settlement at or after
the Fairness Hearing with such modifications as may be consented to
by the Parties and without further notice to the Settlement Class.
Judge Kaplan appoints A.B. Data, Ltd. as the Settlement
Administrator for purposes of the Settlement.
On May 2, 2022, the Settlement Administrator will cause copies of
the mailed notice, in the form (without material variation) of
Exhibit 2 to the Joint Declaration to begin being mailed to the
following: (a) Westpac's and any other Settling Defendants' known
counterparties for BBSW-Based Derivatives during the Class Period
based on transactional and other data provided by (or to be
provided by) Westpac and any other Settling Defendants; (b)
non-settling Defendants' known counterparties for BBSW-Based
Derivatives, to the extent they are identified during the course of
discovery and prior to the deadline to complete mailing pursuant to
the Order; (c) market participants that provided names of
counterparties in BBSW-Based Derivatives pursuant to a subpoena and
prior to the deadline to complete mailing pursuant to the Order;
and (iv) A.B. Data's proprietary list of banks, brokers, and other
nominees, which are likely to trade or hold BBSW-Based Derivatives
on behalf of themselves and/or their clients. The foregoing initial
mailing will be completed no later than 150 days after the date of
the entry of the Order.
On May 2, 2022, the Settlement Administrator will begin to cause to
be published a publication notice, without material variation from
Exhibit 3 to the Joint Declaration, as follows: (a) one time in the
Wall Street Journal, Investor's Business Daily, The Financial
Times, Stocks & Commodities, Global Capital, Fledge Fund Alert, and
Grant's Interest Rate Observer; (b) for at least two weeks on
websites Zacks.com, Traders.com, GlobalInvestorGroup.com, and
GlobalCapital.com; (c) once in e-newsletters from Global Investor
Group, Stocks & Commodities, Zacks.com, and Barchart.com; (d) one
email "blast" to subscribers of Stocks & Commodities and Zacks.com;
and (e) one news release via PR Newswire's US1 Newsline.
The Settlement Administrator will continue to maintain the
Settlement Website, www.BBSWSettlement.com, until the termination
of the administration of the Settlement.
The Settlement Administrator will maintain a toll-free interactive
voice response telephone system containing recorded answers to
frequently asked questions, along with an option permitting callers
to speak to live operators or to leave messages in a voicemail
box.
Judge Kaplan approves, in form and substance, the mailed notice,
the publication notice, and the Settlement Website as described.
On July 15, 2022, the Representative Plaintiffs will file with the
Court a copy of the proposed Distribution Plan and Proof of Claim
and Release. The proposed Distribution Plan and Proof of Claim and
Release will be posted on the Settlement Website as soon as
practicable after it is filed with the Court.
On July 1, 2022 the Settlement Administrator will serve and file a
sworn statement attesting to compliance with the notice provisions
in the Order.
Any Settlement Class Member that has not requested exclusion and
that objects to the fairness, reasonableness, or adequacy of any
term or aspect of the Settlement, the application for attorneys'
fees and expenses, or the Final Approval Order and Final Judgment,
or who otherwise wishes to he heard or intervene, may appear in
person or by his or her attorney at the Fairness Hearing to present
evidence or argument that may be proper and relevant. However,
except for good cause shown, no such Person other than Class
Counsel and Westpac's counsel will be heard and no papers, briefs,
pleadings, or other documents submitted by any such Person will be
considered by the Court unless, not later than 60 days prior to the
Fairness Hearing, Aug. 15, 2022, the Settlement Class Member files
with the Court a statement, of the objection or motion to
intervene, as well as the specific legal and factual reasons for
each objection or motion to intervene. Persons who have timely
submitted a valid Request for Exclusion are not Settlement Class
Members and arc not entitled to object.
All objectors will make themselves available to be deposed by any
Party in the Southern District of New York or the county of the
objector's residence or principal place of business within seven
business days of service of the objector's timely written
objection.
Any Settlement Class Member that fails to object or move to
intervene in the manner described in the Order will be deemed to
have waived the right to object (including any right of appeal) or
to intervene and will be forever barred from raising such objection
or seeking to intervene in this or any other action or proceeding
related to or arising out of the Settlement. Discovery concerning
any purported objections to the Settlement and any purported
motions to intervene will be completed no later than seven days
before the Fairness Hearing. The Class Counsel, Westpac's counsel,
and any other Persons wishing to reply to or otherwise oppose
timely-filed objections in writing may do so not later than seven
days before the Fairness Hearing.
The Settlement Administrator will furnish the Class Counsel and
Westpac's counsel with copies of any and all objections, motions to
intervene, notices of intention to appear, and any other
communications from purported Settlement Class Members concerning
objections that come into its possession (except as otherwise
expressly provided in the Settlement Agreement) as they become
available.
Any Request for Exclusion from the Settlement by a member of the
Settlement Class must be sent in writing by U.S. first class mail
(or, if sent from outside the U.S., by a service that provides for
guaranteed delivery within five or fewer calendar days of mailing)
to the Settlement Administrator at the address in the mailed notice
not later than Aug. 15, 2022.
The Parties may request leave of the Court to seek discovery,
including by subpoena, from any Settlement Class Member who submits
any Request for Exclusion.
The Settlement Administrator will promptly log each Request for
Exclusion that it receives and provide to the Class Counsel and
Westpac's counsel copies of the log, each Request for Exclusion
(including all documents submitted with such requests), and any
written revocations of Requests for Exclusion as soon as possible
after receipt by the Settlement Administrator and in no event later
than two business days after receipt.
At least 15 days before the Fairness hearing, the Settlement
Administrator will prepare an opt-out list identifying all Persons,
if any, who submitted a timely and valid Request for Exclusion from
the Settlement Class, as provided in the Settlement Agreement, and
an affidavit attesting to the accuracy of the opt-out list. The
Class Counsel will file the opt-out list and affidavit of the
Settlement Administrator attesting to the accuracy of such list
with the Court.
All Proof of Claim and Release forms will he submitted by the
Settlement Class Members to the Settlement Administrator as
directed in the mailed notice and must he postmarked no later than
75 days after the Fairness Hearing (Dec. 30, 2022).
The Settlement Administrator will maintain a copy of all paper
communications related to the Settlement for a period of one year
after distribution of the Net Settlement Fund and will maintain a
copy of all electronic communications related to the Settlement for
a period of three years after distribution of the Net Settlement
Fund, after which time all such materials will be destroyed, absent
further direction from the Parties or the Court.
The Class Counsel will file their motions for payment of attorneys'
fees and reimbursement of expenses, incentive awards, and for final
approval of the Settlement no later than July 29, 2022. Any reply
briefs concerning the Class Counsel's motions for payment of
attorneys' fees and reimbursement of expenses, incentive awards,
and for final approval of the Settlement will be filed no later
than Oct. 7, 2022.
The Court may, for good cause, extend any of the deadlines set
forth in the Order without notice to members of the Settlement
Class, other than that which may be posted at the Court or on the
Settlement Website, www.BBSWSettlement.com. The Class Counsel may
move the Court for permission to combine notice of the Settlement
with any other settlements that may be reached.
A full-text copy of the Court's Feb. 1, 2022 Order is available at
https://tinyurl.com/yc3v4jvp from Leagle.com.
JPMORGAN CHASE: Class Notice of Dennis-Morgan Stanley Deal OK'd
---------------------------------------------------------------
In the case, RICHARD DENNIS, SONTERRA CAPITAL MASTER FUND, LTD.,
FRONTPOINT FINANCIAL SERVICES FUND, L.P., FRONTPOINT ASIAN EVENT
DRIVEN FUND, L.P., FRONTPOINT FINANCIAL HORIZONS FUND, AND ORANGE
COUNTY EMPLOYEES RETIREMENT SYSTEM, on behalf of themselves and all
others similarly situated, Plaintiffs v. JPMORGAN CHASE & CO.,
JPMORGAN CHASE BANK, N.A., BNP PARIBAS, S.A., THE ROYAL BANK OF
SCOTLAND GROUP PLC, THE ROYAL BANK OF SCOTLAND PLC, RBS N.V., RBS
GROUP (AUSTRALIA) PTY LIMITED, UBS AG, AUSTRALIA AND NEW ZEALAND
BANKING GROUP LTD., COMMONWEALTH BANK OF AUSTRALIA, NATIONAL
AUSTRALIA BANK LIMITED, WESTPAC BANKING CORPORATION, DEUTSCHE, BANK
AG, HSBC HOLDINGS PLC, HSBC BANK AUSTRALIA LIMITED, LLOYDS BANKING
GROUP PLC, LLOYDS BANK PLC, MACQUARIE, GROUP LTD., MACQUARIE BANK
LTD., ROYAL BANK OF CANADA, RBC CAPITAL MARKETS LLC, MORGAN
STANLEY, MORGAN STANLEY AUSTRALIA LIMITED, CREDIT SUISSE GROUP AG,
CREDIT SUISSE AG, ICAP PLC, ICAP AUSTRALIA PTY LTD., TULLETT PREBON
PLC, TULLETT PREBON (AUSTRALIA) PTY LTD., AND JOHN DOES NOS. 1-50,
Defendants, Docket No. 16-cv-06496 (LAK) (S.D.N.Y.), Judge Lewis A.
Kaplan of the U.S. District Court for the Southern District of New
York grants the Representative Plaintiffs' Motion for an Order
Approving Class Notice Plan and Scheduling Hearing for Final
Approval of the Settlement with Defendants Morgan Stanley and
Morgan Stanley Australia Limited.
Except for the terms expressly defined therein, Judge Kaplan adopts
and incorporates the definitions in the Stipulation and Agreement
of Settlement with Morgan Stanley dated Oct. 1, 2021, as amended on
Jan. 13, 2022 (Exhibit 6 to the Joint Declaration of Vincent
Briganti and Christopher McGrath, dated Jan. 13, 2022).
A Fairness Hearing will be held on a date of the Court's
convenience on Oct. 13, 2022, at 4:00 p.m. The foregoing date,
time, and place of the Fairness Hearing will be set forth in the
Class Notice, which is ordered therein, but will be subject to
adjournment or change by the Court without further notice to the
Settlement Class Members, other than that which may be posted at
the Court or on the Settlement Website at www.BBSWSettlement.com.
The Court reserves the right to approve the Settlement at or after
the Fairness Hearing with such modifications as may be consented to
by the Parties and without further notice to the Settlement Class.
Judge Kaplan appoints A.B. Data, Ltd. as the Settlement
Administrator for purposes of the Settlement.
On May 2, 2022, the Settlement Administrator will cause copies of
the mailed notice, in the form (without material variation) of
Exhibit 2 to the Joint Declaration to begin being mailed to the
following: (a) Morgan Stanley's and any other Settling Defendants'
known counterparties for BBSW-Based Derivatives during the Class
Period based on transactional and other data provided by (or to be
provided by) Morgan Stanley and any other Settling Defendants; (b)
non-settling Defendants' known counterparties for BBSW-Based
Derivatives, to the extent they are identified during the course of
discovery and prior to the deadline to complete mailing pursuant to
the Order; (c) market participants that provided names of
counterparties in BBSW-Based Derivatives pursuant to a subpoena and
prior to the deadline to complete mailing pursuant to the Order;
and (iv) A.B. Data's proprietary list of banks, brokers, and other
nominees, which are likely to trade or hold BBSW-Based Derivatives
on behalf of themselves and/or their clients. The foregoing initial
mailing will be completed no later than 150 days after the date of
the entry of the Order.
On May 2, 2022, the Settlement Administrator will begin to cause to
be published a publication notice, without material variation from
Exhibit 3 to the Joint Declaration, as follows: (a) one time in the
Wall Street Journal, Investor's Business Daily, The Financial
Times, Stocks & Commodities, Global Capital, Fledge Fund Alert, and
Grant's Interest Rate Observer; (b) for at least two weeks on
websites Zacks.com, Traders.com, GlobalInvestorGroup.com, and
GlobalCapital.com; (c) once in e-newsletters from Global Investor
Group, Stocks & Commodities, Zacks.com, and Barchart.com; (d) one
email "blast" to subscribers of Stocks & Commodities and Zacks.com;
and (e) one news release via PR Newswire's US1 Newsline.
The Settlement Administrator will continue to maintain the
Settlement Website, www.BBSWSettlement.com, until the termination
of the administration of the Settlement.
The Settlement Administrator will maintain a toll-free interactive
voice response telephone system containing recorded answers to
frequently asked questions, along with an option permitting callers
to speak to live operators or to leave messages in a voicemail
box.
Judge Kaplan approves, in form and substance, the mailed notice,
the publication notice, and the Settlement Website as described.
On July 15, 2022, the Representative Plaintiffs will file with the
Court a copy of the proposed Distribution Plan and Proof of Claim
and Release. The proposed Distribution Plan and Proof of Claim and
Release will be posted on the Settlement Website as soon as
practicable after it is filed with the Court.
On July 1, 2022 the Settlement Administrator will serve and file a
sworn statement attesting to compliance with the notice provisions
in the Order.
Any Settlement Class Member that has not requested exclusion and
that objects to the fairness, reasonableness, or adequacy of any
term or aspect of the Settlement, the application for attorneys'
fees and expenses, or the Final Approval Order and Final Judgment,
or who otherwise wishes to he heard or intervene, may appear in
person or by his or her attorney at the Fairness Hearing to present
evidence or argument that may be proper and relevant. However,
except for good cause shown, no such Person other than Class
Counsel and Morgan Stanley's counsel will be heard and no papers,
briefs, pleadings, or other documents submitted by any such Person
will be considered by the Court unless, not later than 60 days
prior to the Fairness Hearing, Aug. 15, 2022, the Settlement Class
Member files with the Court a statement, of the objection or motion
to intervene, as well as the specific legal and factual reasons for
each objection or motion to intervene. Persons who have timely
submitted a valid Request for Exclusion arc not Settlement Class
Members and arc not entitled to object.
All objectors will make themselves available to be deposed by any
Party in the Southern District of New York or the county of the
objector's residence or principal place of business within seven
business days of service of the objector's timely written
objection.
Any Settlement Class Member that fails to object or move to
intervene in the manner described in the Order will be deemed to
have waived the right to object (including any right of appeal) or
to intervene and will be forever barred from raising such objection
or seeking to intervene in this or any other action or proceeding
related to or arising out of the Settlement. Discovery concerning
any purported objections to the Settlement and any purported
motions to intervene will be completed no later than seven days
before the Fairness Hearing. The Class Counsel, Morgan Stanley's
counsel, and any other Persons wishing to reply to or otherwise
oppose timely-filed objections in writing may do so not later than
seven days before the Fairness Hearing.
The Settlement Administrator will furnish the Class Counsel and
Morgan Stanley's counsel with copies of any and all objections,
motions to intervene, notices of intention to appear, and any other
communications from purported Settlement Class Members concerning
objections that come into its possession (except as otherwise
expressly provided in the Settlement Agreement) as they become
available.
Any Request for Exclusion from the Settlement by a member of the
Settlement Class must be sent in writing by U.S. first class mail
(or, if sent from outside the U.S., by a service that provides for
guaranteed delivery within five or fewer calendar days of mailing)
to the Settlement Administrator at the address in the mailed notice
not later than Aug. 15, 2022.
The Parties may request leave of the Court to seek discovery,
including by subpoena, from any Settlement Class Member who submits
any Request for Exclusion.
The Settlement Administrator will promptly log each Request for
Exclusion that it receives and provide to the Class Counsel and
Morgan Stanley's counsel copies of the log, each Request for
Exclusion (including all documents submitted with such requests),
and any written revocations of Requests for Exclusion as soon as
possible after receipt by the Settlement Administrator and in no
event later than two business days after receipt.
At least 15 days before the Fairness hearing, the Settlement
Administrator will prepare an opt-out list identifying all Persons,
if any, who submitted a timely and valid Request for Exclusion from
the Settlement Class, as provided in the Settlement Agreement, and
an affidavit attesting to the accuracy of the opt-out list. The
Class Counsel will file the opt-out list and affidavit of the
Settlement Administrator attesting to the accuracy of such list
with the Court.
All Proof of Claim and Release forms will he submitted by the
Settlement Class Members to the Settlement Administrator as
directed in the mailed notice and must he postmarked no later than
75 days after the Fairness Hearing (Dec. 30, 2022).
The Settlement Administrator will maintain a copy of all paper
communications related to the Settlement for a period of one year
after distribution of the Net Settlement Fund and will maintain a
copy of all electronic communications related to the Settlement for
a period of three years after distribution of the Net Settlement
Fund, after which time all such materials will be destroyed, absent
further direction from the Parties or the Court.
The Class Counsel will file their motions for payment of attorneys'
fees and reimbursement of expenses, incentive awards, and for final
approval of the Settlement no later than July 29, 2022. Any reply
briefs concerning the Class Counsel's motions for payment of
attorneys' fees and reimbursement of expenses, incentive awards,
and for final approval of the Settlement will be filed no later
than Oct. 7, 2022.
The Court may, for good cause, extend any of the deadlines set
forth in the Order without notice to members of the Settlement
Class, other than that which may be posted at the Court or on the
Settlement Website, www.BBSWSettlement.com. The Class Counsel may
move the Court for permission to combine notice of the Settlement
with any other settlements that may be reached.
A full-text copy of the Court's Feb. 1, 2022 Order is available at
https://tinyurl.com/5h4c8p3n from Leagle.com.
JPMORGAN CHASE: Class Notice Plan of Dennis Deal With CBA Granted
-----------------------------------------------------------------
In the case, RICHARD DENNIS, SONTERRA CAPITAL MASTER FUND, LTD.,
FRONTPOINT FINANCIAL SERVICES FUND, L.P., FRONTPOINT ASIAN EVENT
DRIVEN FUND, L.P., FRONTPOINT FINANCIAL HORIZONS FUND, L.P., and
ORANGE COUNTY EMPLOYEES RETIREMENT SYSTEM, on behalf of themselves
and all others similarly situated, Plaintiffs v. JPMORGAN CHASE &
CO., JPMORGAN CHASE BANK, N.A., BNP PARIBAS, S.A., THE ROYAL BANK
OF SCOTLAND GROUP PLC, THE ROYAL BANK OF SCOTLAND PLC, RBS N.V.,
RBS GROUP (AUSTRALIA) PTY LIMITED, UBS AG, AUSTRALIA AND NEW
ZEALAND BANKING GROUP LTD., COMMONWEALTH BANK OF AUSTRALIA,
NATIONAL AUSTRALIA BANK LIMITED, WESTPAC BANKING CORPORATION,
DEUTSCHE BANK AG, HSBC HOLDINGS PLC, HSBC BANK AUSTRALIA LIMITED,
LLOYDS BANKING GROUP PLC, LLOYDS BANK PLC, MACQUARIE GROUP LTD.,
MACQUARIE BANK LTD., ROYAL BANK OF CANADA, RBC CAPITAL MARKETS LLC,
MORGAN STANLEY, MORGAN STANLEY AUSTRALIA LIMITED, CREDIT SUISSE
GROUP AG, CREDIT SUISSE AG, ICAP PLC, ICAP AUSTRALIA PTY LTD.,
TULLETT PREBON PLC, TULLETT PREBON (AUSTRALIA) PTY LTD., AND JOHN
DOES NOS. 1-50, Defendants, Docket No. 16-cv-06496 (LAK)
(S.D.N.Y.), Judge Lewis A. Kaplan of the U.S. District Court for
the Southern District of New York grants the Representative
Plaintiffs' Motion for an Order Approving Class Notice Plan and
Scheduling Hearing for Final Approval of the Settlement with
Defendant Commonwealth Bank of Australia.
Except for the terms expressly defined therein, Judge Kaplan adopts
and incorporates the definitions in the Stipulation and Agreement
of Settlement with CBA dated Dec. 10, 2021.
A Fairness Hearing will be held on a date of the Court's
convenience on Oct. 15, 2022, at 4:00 p.m. The foregoing date,
time, and place of the Fairness Hearing will be set forth in the
Class Notice, which is ordered therein, but will be subject to
adjournment or change by the Court without further notice to the
Settlement Class Members, other than that which may be posted at
the Court or on the Settlement Website at www.BBSWSettlement.com.
The Court reserves the right to approve the Settlement at or after
the Fairness Hearing with such modifications as may be consented to
by the Parties and without further notice to the Settlement Class.
Judge Kaplan appoints A.B. Data, Ltd. as the Settlement
Administrator for purposes of the Settlement.
On May 2, 2022, the Settlement Administrator will cause copies of
the mailed notice, in the form (without material variation) of
Exhibit 2 to the Joint Declaration to begin being mailed to the
following: (a) CBA's and any other Settling Defendants' known
counterparties for BBSW-Based Derivatives during the Class Period
based on transactional and other data provided by (or to be
provided by) CBA and any other Settling Defendants; (b)
non-settling Defendants' known counterparties for BBSW-Based
Derivatives, to the extent they are identified during the course of
discovery and prior to the deadline to complete mailing pursuant to
the Order; (c) market participants that provided names of
counterparties in BBSW-Based Derivatives pursuant to a subpoena and
prior to the deadline to complete mailing pursuant to the Order;
and (iv) A.B. Data's proprietary list of banks, brokers, and other
nominees, which are likely to trade or hold BBSW-Based Derivatives
on behalf of themselves and/or their clients. The foregoing initial
mailing will be completed no later than 150 days after the date of
the entry of the Order.
On May 2, 2022, the Settlement Administrator will begin to cause to
be published a publication notice, without material variation from
Exhibit 3 to the Joint Declaration, as follows: (a) one time in the
Wall Street Journal, Investor's Business Daily, The Financial
Times, Stocks & Commodities, Global Capital, Fledge Fund Alert, and
Grant's Interest Rate Observer; (b) for at least two weeks on
websites Zacks.com, Traders.com, GlobalInvestorGroup.com, and
GlobalCapital.com; (c) once in e-newsletters from Global Investor
Group, Stocks & Commodities, Zacks.com, and Barchart.com; (d) one
email "blast" to subscribers of Stocks & Commodities and Zacks.com;
and (e) one news release via PR Newswire's US1 Newsline.
The Settlement Administrator will continue to maintain the
Settlement Website, www.BBSWSettlement.com, until the termination
of the administration of the Settlement.
The Settlement Administrator will maintain a toll-free interactive
voice response telephone system containing recorded answers to
frequently asked questions, along with an option permitting callers
to speak to live operators or to leave messages in a voicemail
box.
Judge Kaplan approves, in form and substance, the mailed notice,
the publication notice, and the Settlement Website as described.
On July 15, 2022, the Representative Plaintiffs will file with the
Court a copy of the proposed Distribution Plan and Proof of Claim
and Release. The proposed Distribution Plan and Proof of Claim and
Release will be posted on the Settlement Website as soon as
practicable after it is filed with the Court.
On July 1, 2022 the Settlement Administrator will serve and file a
sworn statement attesting to compliance with the notice provisions
in the Order.
Any Settlement Class Member that has not requested exclusion and
that objects to the fairness, reasonableness, or adequacy of any
term or aspect of the Settlement, the application for attorneys'
fees and expenses, or the Final Approval Order and Final Judgment,
or who otherwise wishes to he heard or intervene, may appear in
person or by his or her attorney at the Fairness Hearing to present
evidence or argument that may be proper and relevant. However,
except for good cause shown, no such Person other than Class
Counsel and CBA's counsel will be heard and no papers, briefs,
pleadings, or other documents submitted by any such Person will be
considered by the Court unless, not later than 60 days prior to the
Fairness Hearing, Aug. 15, 2022, the Settlement Class Member files
with the Court a statement, of the objection or motion to
intervene, as well as the specific legal and factual reasons for
each objection or motion to intervene. Persons who have timely
submitted a valid Request for Exclusion arc not Settlement Class
Members and are not entitled to object.
All objectors will make themselves available to be deposed by any
Party in the Southern District of New York or the county of the
objector's residence or principal place of business within seven
business days of service of the objector's timely written
objection.
Any Settlement Class Member that fails to object or move to
intervene in the manner described in the Order will be deemed to
have waived the right to object (including any right of appeal) or
to intervene and will be forever barred from raising such objection
or seeking to intervene in this or any other action or proceeding
related to or arising out of the Settlement. Discovery concerning
any purported objections to the Settlement and any purported
motions to intervene will be completed no later than seven days
before the Fairness Hearing. The Class Counsel, CBA's counsel, and
any other Persons wishing to reply to or otherwise oppose
timely-filed objections in writing may do so not later than seven
days before the Fairness Hearing.
The Settlement Administrator will furnish the Class Counsel and
CBA's counsel with copies of any and all objections, motions to
intervene, notices of intention to appear, and any other
communications from purported Settlement Class Members concerning
objections that come into its possession (except as otherwise
expressly provided in the Settlement Agreement) as they become
available.
Any Request for Exclusion from the Settlement by a member of the
Settlement Class must be sent in writing by U.S. first class mail
(or, if sent from outside the U.S., by a service that provides for
guaranteed delivery within five or fewer calendar days of mailing)
to the Settlement Administrator at the address in the mailed notice
not later than Aug. 15, 2022.
The Parties may request leave of the Court to seek discovery,
including by subpoena, from any Settlement Class Member who submits
any Request for Exclusion.
The Settlement Administrator will promptly log each Request for
Exclusion that it receives and provide to the Class Counsel and
CBA's counsel copies of the log, each Request for Exclusion
(including all documents submitted with such requests), and any
written revocations of Requests for Exclusion as soon as possible
after receipt by the Settlement Administrator and in no event later
than two business days after receipt.
At least 15 days before the Fairness hearing, the Settlement
Administrator will prepare an opt-out list identifying all Persons,
if any, who submitted a timely and valid Request for Exclusion from
the Settlement Class, as provided in the Settlement Agreement, and
an affidavit attesting to the accuracy of the opt-out list. The
Class Counsel will file the opt-out list and affidavit of the
Settlement Administrator attesting to the accuracy of such list
with the Court.
All Proof of Claim and Release forms will he submitted by the
Settlement Class Members to the Settlement Administrator as
directed in the mailed notice and must he postmarked no later than
Dec. 30, 2022.
The Settlement Administrator will maintain a copy of all paper
communications related to the Settlement for a period of one year
after distribution of the Net Settlement Fund and will maintain a
copy of all electronic communications related to the Settlement for
a period of three years after distribution of the Net Settlement
Fund, after which time all such materials will be destroyed, absent
further direction from the Parties or the Court.
The Class Counsel will file their motions for payment of attorneys'
fees and reimbursement of expenses, incentive awards, and for final
approval of the Settlement no later than July 29, 2022. Any reply
briefs concerning the Class Counsel's motions for payment of
attorneys' fees and reimbursement of expenses, incentive awards,
and for final approval of the Settlement will be filed no later
than Oct. 7, 2022.
The Court may, for good cause, extend any of the deadlines set
forth in the Order without notice to members of the Settlement
Class, other than that which may be posted at the Court or on the
Settlement Website, www.BBSWSettlement.com. The Class Counsel may
move the Court for permission to combine notice of the Settlement
with any other settlements that may be reached.
A full-text copy of the Court's Feb. 1, 2022 Order is available at
https://tinyurl.com/ytmwb3f6 from Leagle.com.
JPMORGAN CHASE: Class Notice Plan of Dennis Deal With NAB Approved
------------------------------------------------------------------
In the case, RICHARD DENNIS, SONTERRA CAPITAL MASTER FUND, LTD.,
FRONTPOINT FINANCIAL SERVICES FUND, L.P., FRONTPOINT ASIAN EVENT
DRIVEN FUND, L.P., FRONTPOINT FINANCIAL HORIZONS FUND, L.P., and
ORANGE COUNTY EMPLOYEES RETIREMENT SYSTEM, on behalf of themselves
and all others similarly situated, Plaintiffs v. JPMORGAN CHASE &
CO., JPMORGAN CHASE BANK, N.A., BNP PARIBAS, S.A., THE ROYAL BANK
OF SCOTLAND GROUP PLC, THE ROYAL BANK OF SCOTLAND PLC, RBS N.V.,
RBS GROUP (AUSTRALIA) PTY LIMITED, UBS AG, AUSTRALIA AND NEW
ZEALAND BANKING GROUP LTD., COMMONWEALTH BANK OF AUSTRALIA,
NATIONAL AUSTRALIA BANK LIMITED, WESTPAC BANKING CORPORATION,
DEUTSCHE BANK AG, HSBC HOLDINGS PLC, HSBC BANK AUSTRALIA LIMITED,
LLOYDS BANKING GROUP PLC, LLOYDS BANK PLC, MACQUARIE GROUP LTD.,
MACQUARIE BANK LTD., ROYAL BANK OF CANADA, RBC CAPITAL MARKETS LLC,
MORGAN STANLEY, MORGAN STANLEY AUSTRALIA LIMITED, CREDIT SUISSE
GROUP AG, CREDIT SUISSE AG, ICAP PLC, ICAP AUSTRALIA PTY LTD.,
TULLETT PREBON PLC, TULLETT PREBON (AUSTRALIA) PTY LTD., AND JOHN
DOES NOS. 1-50, Defendants, Docket No. 16-cv-06496 (LAK)
(S.D.N.Y.), Judge Lewis A. Kaplan of the U.S. District Court for
the Southern District of New York grants the Representative
Plaintiffs' Motion for an Order Approving Class Notice Plan and
Scheduling Hearing for Final Approval of the Settlement with
Defendant National Australia Bank Limited.
Except for the terms expressly defined therein, Judge Kaplan adopts
and incorporates the definitions in the Stipulation and Agreement
of Settlement with NAB dated Dec. 10, 2021.
A Fairness Hearing will be held on a date of the Court's
convenience on Oct. 13, 2022, at 4:00 p.m. The foregoing date,
time, and place of the Fairness Hearing will be set forth in the
Class Notice, which is ordered therein, but will be subject to
adjournment or change by the Court without further notice to the
Settlement Class Members, other than that which may be posted at
the Court or on the Settlement Website at www.BBSWSettlement.com.
The Court reserves the right to approve the Settlement at or after
the Fairness Hearing with such modifications as may be consented to
by the Parties and without further notice to the Settlement Class.
Judge Kaplan appoints A.B. Data, Ltd. as the Settlement
Administrator for purposes of the Settlement.
On May 2, 2022, the Settlement Administrator will cause copies of
the mailed notice, in the form (without material variation) of
Exhibit 2 to the Joint Declaration to begin being mailed to the
following: (a) NAB's and any other Settling Defendants' known
counterparties for BBSW-Based Derivatives during the Class Period
based on transactional and other data provided by (or to be
provided by) NAB and any other Settling Defendants; (b)
non-settling Defendants' known counterparties for BBSW-Based
Derivatives, to the extent they are identified during the course of
discovery and prior to the deadline to complete mailing pursuant to
the Order; (c) market participants that provided names of
counterparties in BBSW-Based Derivatives pursuant to a subpoena and
prior to the deadline to complete mailing pursuant to the Order;
and (iv) A.B. Data's proprietary list of banks, brokers, and other
nominees, which are likely to trade or hold BBSW-Based Derivatives
on behalf of themselves and/or their clients. The foregoing initial
mailing will be completed no later than 150 days after the date of
the entry of the Order.
On May 2, 2022, the Settlement Administrator will begin to cause to
be published a publication notice, without material variation from
Exhibit 3 to the Joint Declaration, as follows: (a) one time in the
Wall Street Journal, Investor's Business Daily, The Financial
Times, Stocks & Commodities, Global Capital, Fledge Fund Alert, and
Grant's Interest Rate Observer; (b) for at least two weeks on
websites Zacks.com, Traders.com, GlobalInvestorGroup.com, and
GlobalCapital.com; (c) once in e-newsletters from Global Investor
Group, Stocks & Commodities, Zacks.com, and Barchart.com; (d) one
email "blast" to subscribers of Stocks & Commodities and Zacks.com;
and (e) one news release via PR Newswire's US1 Newsline.
The Settlement Administrator will continue to maintain the
Settlement Website, www.BBSWSettlement.com, until the termination
of the administration of the Settlement.
The Settlement Administrator will maintain a toll-free interactive
voice response telephone system containing recorded answers to
frequently asked questions, along with an option permitting callers
to speak to live operators or to leave messages in a voicemail
box.
Judge Kaplan approves, in form and substance, the mailed notice,
the publication notice, and the Settlement Website as described.
On July 15, 2022, the Representative Plaintiffs will file with the
Court a copy of the proposed Distribution Plan and Proof of Claim
and Release. The proposed Distribution Plan and Proof of Claim and
Release will be posted on the Settlement Website as soon as
practicable after it is filed with the Court.
On July 1, 2022 the Settlement Administrator will serve and file a
sworn statement attesting to compliance with the notice provisions
in the Order.
Any Settlement Class Member that has not requested exclusion and
that objects to the fairness, reasonableness, or adequacy of any
term or aspect of the Settlement, the application for attorneys'
fees and expenses, or the Final Approval Order and Final Judgment,
or who otherwise wishes to he heard or intervene, may appear in
person or by his or her attorney at the Fairness Hearing to present
evidence or argument that may be proper and relevant. However,
except for good cause shown, no such Person other than Class
Counsel and NAB's counsel will be heard and no papers, briefs,
pleadings, or other documents submitted by any such Person will be
considered by the Court unless, not later than 60 days prior to the
Fairness Hearing, Aug. 15, 2022, the Settlement Class Member files
with the Court a statement, of the objection or motion to
intervene, as well as the specific legal and factual reasons for
each objection or motion to intervene. Persons who have timely
submitted a valid Request for Exclusion arc not Settlement Class
Members and are not entitled to object.
All objectors will make themselves available to be deposed by any
Party in the Southern District of New York or the county of the
objector's residence or principal place of business within seven
business days of service of the objector's timely written
objection.
Any Settlement Class Member that fails to object or move to
intervene in the manner described in the Order will be deemed to
have waived the right to object (including any right of appeal) or
to intervene and will be forever barred from raising such objection
or seeking to intervene in this or any other action or proceeding
related to or arising out of the Settlement. Discovery concerning
any purported objections to the Settlement and any purported
motions to intervene will be completed no later than seven days
before the Fairness Hearing. The Class Counsel, NAB's counsel, and
any other Persons wishing to reply to or otherwise oppose
timely-filed objections in writing may do so not later than seven
days before the Fairness Hearing.
The Settlement Administrator will furnish the Class Counsel and
NAB's counsel with copies of any and all objections, motions to
intervene, notices of intention to appear, and any other
communications from purported Settlement Class Members concerning
objections that come into its possession (except as otherwise
expressly provided in the Settlement Agreement) as they become
available.
Any Request for Exclusion from the Settlement by a member of the
Settlement Class must be sent in writing by U.S. first class mail
(or, if sent from outside the U.S., by a service that provides for
guaranteed delivery within five or fewer calendar days of mailing)
to the Settlement Administrator at the address in the mailed notice
not later than Aug. 15, 2022.
The Parties may request leave of the Court to seek discovery,
including by subpoena, from any Settlement Class Member who submits
any Request for Exclusion.
The Settlement Administrator will promptly log each Request for
Exclusion that it receives and provide to the Class Counsel and
NAB's counsel copies of the log, each Request for Exclusion
(including all documents submitted with such requests), and any
written revocations of Requests for Exclusion as soon as possible
after receipt by the Settlement Administrator and in no event later
than two business days after receipt.
At least 15 days before the Fairness hearing, the Settlement
Administrator will prepare an opt-out list identifying all Persons,
if any, who submitted a timely and valid Request for Exclusion from
the Settlement Class, as provided in the Settlement Agreement, and
an affidavit attesting to the accuracy of the opt-out list. The
Class Counsel will file the opt-out list and affidavit of the
Settlement Administrator attesting to the accuracy of such list
with the Court.
All Proof of Claim and Release forms will he submitted by the
Settlement Class Members to the Settlement Administrator as
directed in the mailed notice and must he postmarked no later than
Dec. 30, 2022.
The Settlement Administrator will maintain a copy of all paper
communications related to the Settlement for a period of one year
after distribution of the Net Settlement Fund and will maintain a
copy of all electronic communications related to the Settlement for
a period of three years after distribution of the Net Settlement
Fund, after which time all such materials will be destroyed, absent
further direction from the Parties or the Court.
The Class Counsel will file their motions for payment of attorneys'
fees and reimbursement of expenses, incentive awards, and for final
approval of the Settlement no later than July 29, 2022. Any reply
briefs concerning the Class Counsel's motions for payment of
attorneys' fees and reimbursement of expenses, incentive awards,
and for final approval of the Settlement will be filed no later
than Oct. 7, 2022.
The Court may, for good cause, extend any of the deadlines set
forth in the Order without notice to members of the Settlement
Class, other than that which may be posted at the Court or on the
Settlement Website, www.BBSWSettlement.com. The Class Counsel may
move the Court for permission to combine notice of the Settlement
with any other settlements that may be reached.
A full-text copy of the Court's Feb. 1, 2022 Order is available at
https://tinyurl.com/2p99nwbj from Leagle.com.
JPMORGAN CHASE: Court Accepts Class Notice Plan for Dennis-ANZ Deal
-------------------------------------------------------------------
In the case, RICHARD DENNIS, SONTERRA CAPITAL MASTER FUND, LTD.,
FRONTPOINT FINANCIAL SERVICES FUND, L.P., FRONTPOINT ASIAN EVENT
DRIVEN FUND, L.P., FRONTPOINT FINANCIAL HORIZONS FUND, L.P., and
ORANGE COUNTY EMPLOYEES RETIREMENT SYSTEM, on behalf of themselves
and all others similarly situated, Plaintiffs v. JPMORGAN CHASE &
CO., JPMORGAN CHASE BANK, N.A., BNP PARIBAS, S.A., THE ROYAL BANK
OF SCOTLAND GROUP PLC, THE ROYAL BANK OF SCOTLAND PLC, RBS N.V.,
RBS GROUP (AUSTRALIA) PTY LIMITED, UBS AG, AUSTRALIA AND NEW
ZEALAND BANKING GROUP LTD., COMMONWEALTH BANK OF AUSTRALIA,
NATIONAL AUSTRALIA BANK LIMITED, WESTPAC BANKING CORPORATION,
DEUTSCHE BANK AG, HSBC HOLDINGS PLC, HSBC BANK AUSTRALIA LIMITED,
LLOYDS BANKING GROUP PLC, LLOYDS BANK PLC, MACQUARIE GROUP LTD.,
MACQUARIE BANK LTD., ROYAL BANK OF CANADA, RBC CAPITAL MARKETS LLC,
MORGAN STANLEY, MORGAN STANLEY AUSTRALIA LIMITED, CREDIT SUISSE
GROUP AG, CREDIT SUISSE AG, ICAP PLC, ICAP AUSTRALIA PTY LTD.,
TULLETT PREBON PLC, TULLETT PREBON (AUSTRALIA) PTY LTD., AND JOHN
DOES NOS. 1-50, Defendants, Docket No. 16-cv-06496 (LAK)
(S.D.N.Y.), Judge Lewis A. Kaplan of the U.S. District Court for
the Southern District of New York grants the Representative
Plaintiffs' Motion for an Order Approving Class Notice Plan and
Scheduling Hearing for Final Approval of the Settlement with
Defendant Australia and New Zealand Banking Group Ltd.
Except for the terms expressly defined therein, Judge Kaplan adopts
and incorporates the definitions in the Stipulation and Agreement
of Settlement with ANZ dated Dec. 10, 2021.
A Fairness Hearing will be held on a date of the Court's
convenience on Oct. 13, 2022, at 4:00 p.m. The foregoing date,
time, and place of the Fairness Hearing will be set forth in the
Class Notice, which is ordered therein, but will be subject to
adjournment or change by the Court without further notice to the
Settlement Class Members, other than that which may be posted at
the Court or on the Settlement Website at www.BBSWSettlement.com.
The Court reserves the right to approve the Settlement at or after
the Fairness Hearing with such modifications as may be consented to
by the Parties and without further notice to the Settlement Class.
Judge Kaplan appoints A.B. Data, Ltd. as the Settlement
Administrator for purposes of the Settlement.
On May 2, 2022, the Settlement Administrator will cause copies of
the mailed notice, in the form (without material variation) of
Exhibit 2 to the Joint Declaration to begin being mailed to the
following: (a) ANZ's and any other Settling Defendants' known
counterparties for BBSW-Based Derivatives during the Class Period
based on transactional and other data provided by (or to be
provided by) ANZ and any other Settling Defendants; (b)
non-settling Defendants' known counterparties for BBSW-Based
Derivatives, to the extent they are identified during the course of
discovery and prior to the deadline to complete mailing pursuant to
the Order; (c) market participants that provided names of
counterparties in BBSW-Based Derivatives pursuant to a subpoena and
prior to the deadline to complete mailing pursuant to the Order;
and (iv) A.B. Data's proprietary list of banks, brokers, and other
nominees, which are likely to trade or hold BBSW-Based Derivatives
on behalf of themselves and/or their clients. The foregoing initial
mailing will be completed no later than 150 days after the date of
the entry of the Order.
On May 2, 2022, the Settlement Administrator will begin to cause to
be published a publication notice, without material variation from
Exhibit 3 to the Joint Declaration, as follows: (a) one time in the
Wall Street Journal, Investor's Business Daily, The Financial
Times, Stocks & Commodities, Global Capital, Fledge Fund Alert, and
Grant's Interest Rate Observer; (b) for at least two weeks on
websites Zacks.com, Traders.com, GlobalInvestorGroup.com, and
GlobalCapital.com; (c) once in e-newsletters from Global Investor
Group, Stocks & Commodities, Zacks.com, and Barchart.com; (d) one
email "blast" to subscribers of Stocks & Commodities and Zacks.com;
and (e) one news release via PR Newswire's US1 Newsline.
The Settlement Administrator will continue to maintain the
Settlement Website, www.BBSWSettlement.com, until the termination
of the administration of the Settlement.
The Settlement Administrator will maintain a toll-free interactive
voice response telephone system containing recorded answers to
frequently asked questions, along with an option permitting callers
to speak to live operators or to leave messages in a voicemail
box.
Judge Kaplan approves, in form and substance, the mailed notice,
the publication notice, and the Settlement Website as described.
On July 15, 2022, the Representative Plaintiffs will file with the
Court a copy of the proposed Distribution Plan and Proof of Claim
and Release. The proposed Distribution Plan and Proof of Claim and
Release will be posted on the Settlement Website as soon as
practicable after it is filed with the Court.
On July 1, 2022 the Settlement Administrator will serve and file a
sworn statement attesting to compliance with the notice provisions
in the Order.
Any Settlement Class Member that has not requested exclusion and
that objects to the fairness, reasonableness, or adequacy of any
term or aspect of the Settlement, the application for attorneys'
fees and expenses, or the Final Approval Order and Final Judgment,
or who otherwise wishes to he heard or intervene, may appear in
person or by his or her attorney at the Fairness Hearing to present
evidence or argument that may be proper and relevant. However,
except for good cause shown, no such Person other than Class
Counsel and ANZ's counsel will be heard and no papers, briefs,
pleadings, or other documents submitted by any such Person will be
considered by the Court unless, not later than 60 days prior to the
Fairness Hearing, Aug. 15, 2022, the Settlement Class Member files
with the Court a statement, of the objection or motion to
intervene, as well as the specific legal and factual reasons for
each objection or motion to intervene. Persons who have timely
submitted a valid Request for Exclusion arc not Settlement Class
Members and are not entitled to object.
All objectors will make themselves available to be deposed by any
Party in the Southern District of New York or the county of the
objector's residence or principal place of business within seven
business days of service of the objector's timely written
objection.
Any Settlement Class Member that fails to object or move to
intervene in the manner described in the Order will be deemed to
have waived the right to object (including any right of appeal) or
to intervene and will be forever barred from raising such objection
or seeking to intervene in this or any other action or proceeding
related to or arising out of the Settlement. Discovery concerning
any purported objections to the Settlement and any purported
motions to intervene will be completed no later than seven days
before the Fairness Hearing. The Class Counsel, ANZ's counsel, and
any other Persons wishing to reply to or otherwise oppose
timely-filed objections in writing may do so not later than seven
days before the Fairness Hearing.
The Settlement Administrator will furnish the Class Counsel and
ANZ's counsel with copies of any and all objections, motions to
intervene, notices of intention to appear, and any other
communications from purported Settlement Class Members concerning
objections that come into its possession (except as otherwise
expressly provided in the Settlement Agreement) as they become
available.
Any Request for Exclusion from the Settlement by a member of the
Settlement Class must be sent in writing by U.S. first class mail
(or, if sent from outside the U.S., by a service that provides for
guaranteed delivery within five or fewer calendar days of mailing)
to the Settlement Administrator at the address in the mailed notice
not later than Aug. 15, 2022.
The Parties may request leave of the Court to seek discovery,
including by subpoena, from any Settlement Class Member who submits
any Request for Exclusion.
The Settlement Administrator will promptly log each Request for
Exclusion that it receives and provide to the Class Counsel and
ANZ's counsel copies of the log, each Request for Exclusion
(including all documents submitted with such requests), and any
written revocations of Requests for Exclusion as soon as possible
after receipt by the Settlement Administrator and in no event later
than two business days after receipt.
At least 15 days before the Fairness hearing, the Settlement
Administrator will prepare an opt-out list identifying all Persons,
if any, who submitted a timely and valid Request for Exclusion from
the Settlement Class, as provided in the Settlement Agreement, and
an affidavit attesting to the accuracy of the opt-out list. The
Class Counsel will file the opt-out list and affidavit of the
Settlement Administrator attesting to the accuracy of such list
with the Court.
All Proof of Claim and Release forms will he submitted by the
Settlement Class Members to the Settlement Administrator as
directed in the mailed notice and must he postmarked no later than
Dec. 30, 2022.
The Settlement Administrator will maintain a copy of all paper
communications related to the Settlement for a period of one year
after distribution of the Net Settlement Fund and will maintain a
copy of all electronic communications related to the Settlement for
a period of three years after distribution of the Net Settlement
Fund, after which time all such materials will be destroyed, absent
further direction from the Parties or the Court.
The Class Counsel will file their motions for payment of attorneys'
fees and reimbursement of expenses, incentive awards, and for final
approval of the Settlement no later than July 29, 2022. Any reply
briefs concerning the Class Counsel's motions for payment of
attorneys' fees and reimbursement of expenses, incentive awards,
and for final approval of the Settlement will be filed no later
than Oct. 7, 2022.
The Court may, for good cause, extend any of the deadlines set
forth in the Order without notice to members of the Settlement
Class, other than that which may be posted at the Court or on the
Settlement Website, www.BBSWSettlement.com. The Class Counsel may
move the Court for permission to combine notice of the Settlement
with any other settlements that may be reached.
A full-text copy of the Court's Feb. 1, 2022 Order is available at
https://tinyurl.com/29j3sh7y from Leagle.com.
JPMORGAN CHASE: March 2021 Order on Dennis-JPMorgan Deal Amended
----------------------------------------------------------------
In the case, RICHARD DENNIS, SONTERRA CAPITAL MASTER FUND, LTD.,
FRONTPOINT FINANCIAL SERVICES FUND, L.P., FRONTPOINT ASIAN EVENT
DRIVEN FUND, L.P., FRONTPOINT FINANCIAL HORIZONS FUND, L.P., AND
ORANGE COUNTY EMPLOYEES RETIREMENT SYSTEM, on behalf of themselves
and all others similarly situated, Plaintiffs v. JPMORGAN CHASE &
CO., JPMORGAN CHASE BANK, N.A., JPMORGAN CHASE BANK, N.A. AUSTRALIA
BRANCH, BNP PARIBAS, S.A., BNP PARIBAS, AUSTRALIA BRANCH, THE ROYAL
BANK OF SCOTLAND GROUP PLC, THE ROYAL BANK OF SCOTLAND PLC, RBS
N.V., RBS GROUP (AUSTRALIA) PTY LIMITED, UBS AG, UBS AG, AUSTRALIA
BRANCH, AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD., COMMONWEALTH
BANK OF AUSTRALIA, NATIONAL AUSTRALIA BANK LIMITED, WESTPAC BANKING
CORPORATION, DEUTSCHE BANK AG, DEUTSCHE BANK AG, AUSTRALIA BRANCH,
HSBC HOLDINGS PLC, HSBC BANK AUSTRALIA LIMITED, LLOYDS BANKING
GROUP PLC, LLOYDS BANK PLC, LLOYDS TSB BANK PLC, AUSTRALIA,
MACQUARIE GROUP LTD., MACQUARIE BANK LTD., ROYAL BANK OF CANADA,
RBC CAPITAL MARKETS LLC, ROYAL BANK OF CANADA, AUSTRALIA BRANCH,
MORGAN STANLEY, MORGAN STANLEY AUSTRALIA LIMITED, CREDIT SUISSE
GROUP AG, CREDIT SUISSE AG, ICAP PLC, ICAP AUSTRALIA PTY LTD.,
TULLETT PREBON PLC, TULLETT PREBON (AUSTRALIA) PTY LTD., AND JOHN
DOES NOS. 1-50, Defendants, Docket No. 16-cv-06496 (LAK)
(S.D.N.Y.), Judge Lewis A. Kaplan of the U.S. District Court for
the Southern District of New York grants the Plaintiffs' Motion for
an Order amending the March 2021 Order and for an Order Issuing
Class Notice of Proposed Settlement.
The parties to the Stipulation and Agreement of Settlement as to
Defendants JPMorgan Chase & Co. and JPMorgan Chase Bank, N.A.
("JPMorgan") dated Nov. 20, 2018 entered into by the Representative
Plaintiffs and JPMorgan in the action, have previously applied for
an order conditionally certifying a Settlement Class. The Court has
previously issued an order on Nov. 28, 2018 conditionally
certifying a Settlement Class.
The Representative Plaintiffs and JPMorgan have executed an
Amendment to the Settlement Agreement and have previously applied
for a superseding order conditionally certifying a Settlement. The
Court has previously issued a superseding order on March 30, 2021
conditionally certifying a Settlement Class. The Parties have
executed a Second Amendment to the Settlement Agreement, dated Jan.
13, 2022. The Plaintiffs have filed a Motion for an Order Amending
the March 2021 Order and for an Order Issuing Class Notice of
Proposed Settlement.
Judge Kaplan has reviewed the Motion, the Settlement Agreement and
attached exhibits, the Amendment and attached exhibits, and the
Second Amendment and attached exhibits, which set forth the terms
and conditions for a proposed settlement of and for dismissal of
the Action with prejudice as against JPMorgan upon the terms and
conditions set forth therein. He finds that the Motion is due to be
granted. His present Order supersedes the March 2021 Order.
In the Action only and solely for purposes of the Settlement, the
Court: (i) has personal jurisdiction over the Representative
Plaintiffs and JPMorgan and all the Settlement Class Members, and
(ii) subject matter jurisdiction over the Action to consider the
Settlement Agreement and all exhibits attached thereto.
For purposes of settlement only, pursuant to Fed. R. Civ. P. 23(a)
and (b)(3), Judge Kaplan certifies a Settlement Class consisting of
all Persons (including both natural persons and entities) who
purchased, acquired, sold, held, traded, or otherwise had any
interest in, BBSW-Based Derivatives during the period Jan. 1, 2003
through Aug. 16, 2016, inclusive, provided that, if the
Representative Plaintiffs expand the putative or certified class in
the Action in or through any subsequent amended complaint, class
motion, or Other Settlement, the defined Settlement Class in the
Order and the Settlement Agreement will be expanded so as to be
coterminous with such expansion.
Judge Kaplan appoints Lowey Dannenberg, P.C. and Lovell Stewart
Halebian Jacobson LLP as the Class Counsel. He also appointed
Citibank, N.A. as the Escrow Agent for purposes of the Settlement
Fund defined in the Settlement Agreement. He approves the
establishment of the Settlement Fund as qualified settlement funds
pursuant to Section 468B of the Internal Revenue Code of 1986, as
amended, and the Treasury Regulations promulgated thereunder. Judge
Kaplan further appoints Representative Plaintiffs Richard Dennis,
Sonterra Capital Master Fund, Ltd., FrontPoint Financial Services
Fund, L.P., FrontPoint Asian Event Driven Fund, L.P., FrontPoint
Financial Horizons Fund, L.P., and Fund Liquidation Holdings, LLC,
and any subsequently named Plaintiff(s), including Orange County
Employees Retirement System ("OCERS"), as the representatives of
such Settlement Class for purposes of the Settlement.
All proceedings in the Action as to JPMorgan, other than
proceedings as may be necessary to implement the proposed
Settlement or to effectuate the terms of the Settlement Agreement,
are stayed and suspended until further order of the Court.
The timing, plan, and forms of the Class Notice to the Settlement
Class and the date of the Fairness Hearing before the Court to
consider any member(s) of the Settlement Class's objections to
final approval of the Settlement and to consider the fairness,
adequacy and reasonableness of the proposed Settlement and
Settlement Agreement will all be determined by separate order of
the Court.
If the Settlement is approved by the Court following the Fairness
Hearing, a Final Approval Order and Final Judgment will be entered
as described in the Settlement Agreement.
Except as otherwise provided herein, in the event that the
Settlement Agreement is terminated, vacated, not approved, or the
Effective Date fails to occur for any reason, then the Parties will
be deemed to have reverted to their respective status in the Action
as of June 5, 2018 and the Settlement Amount, and all interest
earned in the Settlement Fund on that Settlement Amount, will be
refunded, reimbursed, and repaid to JPMorgan to the extent provided
in the Settlement Agreement.
All funds held by the Escrow Agent will be deemed and considered to
be in custodial legis of the Court, and will remain subject to the
jurisdiction of the Court, until such time as such funds will be
distributed pursuant to the Settlement Agreement, returned to the
Person(s) paying the same pursuant to the Settlement Agreement
and/or further order(s) of the Court.
The counsel for JPMorgan shall, at or before the hearing set to
consider the fairness, adequacy and reasonableness of the
Settlement and final approval of the Settlement, file with the
Court proof of compliance with the Class Action Fairness Act of
2005, 28 U.S.C. Section 1715.
If any deadline falls on a Saturday, Sunday, or legal holiday, such
deadline will be extended until the next Business Day that is not a
Saturday, Sunday, or legal holiday.
A full-text copy of the Court's Feb. 1, 2022 Superseding Order is
available at https://tinyurl.com/ybrzdwjx from Leagle.com.
JPMORGAN CHASE: March 2021 Order on Dennis-Westpac Deal Amended
---------------------------------------------------------------
In the case, RICHARD DENNIS, SONTERRA CAPITAL MASTER FUND, LTD.,
FRONTPOINT FINANCIAL SERVICES FUND, L.P., FRONTPOINT ASIAN EVENT
DRIVEN FUND, L.P., FRONTPOINT FINANCIAL HORIZONS FUND, L.P., AND
ORANGE COUNTY EMPLOYEES RETIREMENT SYSTEM, on behalf of themselves
and all others similarly situated, Plaintiffs v. JPMORGAN CHASE &
CO., JPMORGAN CHASE BANK, N.A., JPMORGAN CHASE BANK, N.A. AUSTRALIA
BRANCH, BNP PARIBAS, S.A., BNP PARIBAS, AUSTRALIA BRANCH, THE ROYAL
BANK OF SCOTLAND GROUP PLC, THE ROYAL BANK OF SCOTLAND PLC, RBS
N.V., RBS GROUP (AUSTRALIA) PTY LIMITED, UBS AG, UBS AG, AUSTRALIA
BRANCH, AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD., COMMONWEALTH
BANK OF AUSTRALIA, NATIONAL AUSTRALIA BANK LIMITED, WESTPAC BANKING
CORPORATION, DEUTSCHE BANK AG, DEUTSCHE BANK AG, AUSTRALIA BRANCH,
HSBC HOLDINGS PLC, HSBC BANK AUSTRALIA LIMITED, LLOYDS BANKING
GROUP PLC, LLOYDS BANK PLC, LLOYDS TSB BANK PLC, AUSTRALIA,
MACQUARIE GROUP LTD., MACQUARIE BANK LTD., ROYAL BANK OF CANADA,
RBC CAPITAL MARKETS LLC, ROYAL BANK OF CANADA, AUSTRALIA BRANCH,
MORGAN STANLEY, MORGAN STANLEY AUSTRALIA LIMITED, CREDIT SUISSE
GROUP AG, CREDIT SUISSE AG, ICAP PLC, ICAP AUSTRALIA PTY LTD.,
TULLETT PREBON PLC, TULLETT PREBON (AUSTRALIA) PTY LTD., AND JOHN
DOES NOS. 1-50, Defendants, Docket No. 16-cv-06496 (LAK)
(S.D.N.Y.), Judge Lewis A. Kaplan of the U.S. District Court for
the Southern District of New York grants the Plaintiffs' Motion for
an Order amending the March 2021 Order and for an Order Issuing
Class Notice of Proposed Settlement.
The parties to the Stipulation and Agreement of Settlement as to
Defendant Westpac Banking Corp. dated March 1, 2021 entered into by
the Representative Plaintiffs and Westpac in the action, have
previously applied for an order conditionally certifying a
Settlement Class. The Court has previously issued an order on March
30, 2021 conditionally certifying a Settlement Class. The
Representative Plaintiffs and Westpac have executed an Amendment to
the Settlement Agreement dated Jan. 13, 2022. The Plaintiffs have
filed a Motion for an Order amending the March 2021 Order and for
an Order Issuing Class Notice of Proposed Settlement.
Judge Kaplan has reviewed the Motion, the Settlement Agreement and
attached exhibits, and the Amendment and attached exhibits, which
set forth the terms and conditions for a proposed settlement of and
for dismissal of the Action with prejudice as against Westpac upon
the terms and conditions set forth therein. He finds that the
Motion is due to be granted. His present Order supersedes the March
2021 Order.
In the Action only and solely for purposes of the Settlement, the
Court: (i) has personal jurisdiction over the Representative
Plaintiffs and Westpac and all the Settlement Class Members, and
(ii) subject matter jurisdiction over the Action to consider the
Settlement Agreement and all exhibits attached thereto.
For purposes of settlement only, pursuant to Fed. R. Civ. P. 23(a)
and (b)(3), Judge Kaplan certifies a Settlement Class consisting of
all Persons (including both natural persons and entities) who
purchased, acquired, sold, held, traded, or otherwise had any
interest in, BBSW-Based Derivatives during the period Jan. 1, 2003
through Aug. 16, 2016, inclusive, provided that, if the
Representative Plaintiffs expand the putative or certified class in
the Action in or through any subsequent amended complaint, class
motion, or Other Settlement, the defined Settlement Class in the
Order and the Settlement Agreement will be expanded so as to be
coterminous with such expansion.
Judge Kaplan appoints Lowey Dannenberg, P.C. and Lovell Stewart
Halebian Jacobson LLP as the Class Counsel. He also appointed
Citibank, N.A. as the Escrow Agent for purposes of the Settlement
Fund defined in the Settlement Agreement. He approves the
establishment of the Settlement Fund as qualified settlement funds
pursuant to Section 468B of the Internal Revenue Code of 1986, as
amended, and the Treasury Regulations promulgated thereunder. Judge
Kaplan further appoints Representative Plaintiffs Richard Dennis
and OCERS as the representatives of such Settlement Class for
purposes of the Settlement.
All proceedings in the Action as to Westpac, other than proceedings
as may be necessary to implement the proposed Settlement or to
effectuate the terms of the Settlement Agreement, are stayed and
suspended until further order of the Court.
The timing, plan, and forms of the Class Notice to the Settlement
Class and the date of the Fairness Hearing before the Court to
consider any member(s) of the Settlement Class's objections to
final approval of the Settlement and to consider the fairness,
adequacy and reasonableness of the proposed Settlement and
Settlement Agreement will all be determined by separate order of
the Court.
If the Settlement is approved by the Court following the Fairness
Hearing, a Final Approval Order and Final Judgment will be entered
as described in the Settlement Agreement.
Except as otherwise provided therein, in the event that the
Settlement Agreement is terminated, vacated, not approved, or the
Effective Date fails to occur for any reason, then the Parties will
be deemed to have reverted to their respective status in the Action
as of Oct. 27, 2020 and the Settlement Amount, and all interest
earned in the Settlement Fund on that Settlement Amount, will be
refunded, reimbursed, and repaid to Westpac to the extent provided
in the Settlement Agreement.
All funds held by the Escrow Agent will be deemed and considered to
be in custodial legis of the Court, and will remain subject to the
jurisdiction of the Court, until such time as such funds will be
distributed pursuant to the Settlement Agreement, returned to the
Person(s) paying the same pursuant to the Settlement Agreement
and/or further order(s) of the Court.
Judge Kaplan orders Westpac to produce documents to the
Representative Plaintiffs consistent with and solely to the extent
of its cooperation obligations provided in Section 5 of the
Settlement Agreement.
If any deadline falls on a Saturday, Sunday, or legal holiday, such
deadline will be extended until the next Business Day that is not a
Saturday, Sunday, or legal holiday.
A full-text copy of the Court's Feb. 1, 2022 Superseding Order is
available at https://tinyurl.com/2f2kk86b from Leagle.com.
JULIO H. BAEZ: Soto Sues Over Unpaid Wages for Grocery Store Staff
------------------------------------------------------------------
REYNALDO DE SOTO SOTO, individually and on behalf of all others
similarly situated, Plaintiff v. JULIO H. BAEZ LOLO GROCERY CORP, B
BROTHER GROCERY CORP, RICHARD O. BAEZ, and PASQUALE ORTIZ,
Defendants, Case No. 1:22-cv-00700 (E.D.N.Y., February 8, 2022) is
a class action against the Defendants for violations of the Fair
Labor Standards Act and the New York Labor Law including failure to
pay minimum wages, failure to pay overtime wages, failure to pay
spread-of-hours premiums, failure to provide accurate wage
statements, and failure to provide accurate wage notices.
The Plaintiff was employed as a deli counter worker, cook, and food
preparer at the Defendants' Deli Grocery Store at 325 Quincy
Street, Brooklyn, New York from March 22, 2021 until November 6,
2021.
Julio H. Baez Lolo Grocery Corp is an owner and operator of Deli
Grocery Store, located at 325 Quincy Street, Brooklyn, New York.
B Brother Grocery Corp is an owner and operator of Deli Grocery
Store, located at 325 Quincy Street, Brooklyn, New York. [BN]
The Plaintiff is represented by:
Clifford Tucker, Esq.
SACCO & FILLAS, LLP
31-19 Newtown Avenue, Seventh Floor
Astoria, NY 11102
Telephone: (718) 269-2243
E-mail: CTucker@SaccoFillas.com
JUUL LABS: Faces Mineral Suit Over E-Cigarette Campaign to Youth
----------------------------------------------------------------
MINERAL COUNTY COMMISSION, MINERAL COUNTY, STATE OF WEST VIRGINIA,
on behalf of itself and all others similarly situated, Plaintiff v.
JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN;
NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.;
ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and
PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-00819 (N.D.
Cal., February 8, 2022) is a class action against the Defendants
for negligence, gross negligence, and violations of Public Nuisance
Law and the Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Mineral County Commission is a school district with its offices
located at 150 Armstrong Street, Keyser, West Virginia.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
Andy D. Birchfield, Jr., Esq.
Joseph G. VanZandt, Esq.
Davis S. Vaughn, Esq.
BEASLEY ALLEN CROW METHVIN PORTIS & MILES, LLC
234 Commerce Street
Montgomery, AL 36103
Telephone: (334) 269-2343
E-mail: Andy.Birchfield@BeasleyAllen.com
Joseph.VanZandt@BeasleyAllen.com
Davis.Vaughn@BeasleyAllen.com
- and –
Charles R. "Rusty" Webb, Esq.
THE WEBB LAW CENTRE, PLLC
716 Lee St. E.
Charleston, WV 25301
Telephone: (304) 344-9322
E-mail: Rusty@RustyWebb.com
JUUL LABS: Leeds City Sues Over Deceptive E-Cigarette Youth Ads
---------------------------------------------------------------
LEEDS CITY SCHOOLS, on behalf of itself and all others similarly
situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES
MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI;
ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP
DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case
No. 3:22-cv-00800-WHO (N.D. Cal., February 8, 2022) is a class
action against the Defendants for negligence, gross negligence, and
violations of Alabama Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Leeds City Schools is a public school district with its offices
located in Leeds, Alabama.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
Robert G. Methvin, Jr., Esq.
James M. Terrell, Esq.
Brooke B. Rebarchak, Esq.
METHVIN, TERRELL, YANCEY, STEPHENS & MILLER, P.C.
2201 Arlington Avenue South
Birmingham, AL 35205
Telephone: (205) 939-0199
Facsimile: (205) 939-0399
E-mail: jterrell@mtattorneys.com
rgm@mtattorneys.com
brebarchak@mtattorneys.com
- and –
Thomas P. Cartmell, Esq.
Jonathan P. Kieffer, Esq.
Tyler W. Hudson, Esq.
Eric Barton, Esq.
WAGSTAFF & CARTMELL LLP
4740 Grand Ave., Ste. 300
Kansas City, MO 64112
Telephone: (816) 701-1100
Facsimile: (816) 531-2372
E-mail: tcartmell@wcllp.com
jpkieffer@wcllp.com
thudson@wcllp.com
ebarton@wcllp.com
- and –
Christina D. Crow, Esq.
JINKS CROW & DICKSON, PC
219 North Prairie Street
Union Springs, AL Zip36089
Telephone: (334) 738-4225
Facsimile: (334) 738-4229
E-mail: ccrow@jinkslaw.com
JUUL LABS: Markets E-Cigarette to Youth, Raleigh County Claims
--------------------------------------------------------------
RALEIGH COUNTY COMMISSION, RALEIGH COUNTY, STATE OF WEST VIRGINIA,
on behalf of itself and all others similarly situated, Plaintiff v.
JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN;
NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.;
ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and
PHILIP MORRIS USA, INC., Defendants, Case No. 3:22-cv-00818 (N.D.
Cal., February 8, 2022) is a class action against the Defendants
for negligence, gross negligence, and violations of Public Nuisance
Law and the Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Raleigh County Commission is a school district with its offices
located in Beckley, West Virginia.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
Andy D. Birchfield, Jr., Esq.
Joseph G. VanZandt, Esq.
Davis S. Vaughn, Esq.
BEASLEY ALLEN CROW METHVIN PORTIS & MILES, LLC
234 Commerce Street
Montgomery, AL 36103
Telephone: (334) 269-2343
E-mail: Andy.Birchfield@BeasleyAllen.com
Joseph.VanZandt@BeasleyAllen.com
Davis.Vaughn@BeasleyAllen.com
- and –
Charles R. "Rusty" Webb, Esq.
THE WEBB LAW CENTRE, PLLC
716 Lee St. E.
Charleston, WV 25301
Telephone: (304) 344-9322
E-mail: Rusty@RustyWebb.com
KMI BRANDS: Abreu Files ADA Suit in S.D. New York
-------------------------------------------------
A class action lawsuit has been filed against KMI Brands Inc. The
case is styled as Luigi Abreu, individually, and on behalf of all
others similarly situated v. KMI Brands Inc., Case No.
1:22-cv-01097 (S.D.N.Y., Feb. 8, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
KMI -- https://kmibrands.com/ -- is a creator of beauty
brands.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
MIZRAHI & KROUB LLP
200 Vesey St, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: jmizrahi@mizrahikroub.com
KONINKLIJKE PHILIPS: Giuffre Suit Transferred in W.D. Pennsylvania
------------------------------------------------------------------
The case is styled as James Joseph Giuffre, Sr., Petra Marion
Merritt, individually and on behalf of all others similarly
situated v. Koninklijke Philips N.V., Philips North America LLC,
Philips Holding USA, Inc., Philips RS North America LLC, Philips RS
North America Holding Corporation, WM. T. Burnett Foam LLC, WM.T.
Burnett & CO., WM.T. Burnett Management, Inc., WM.T. Burnett
Holding LLC, WM.T. Burnett & Co., Incorporated, WM.T. Burnett Fiber
LLC, WM.T. Burnett IP LLC, Case No. MDL No. 3014, was transferred
from the Judicial Panel on Multi-District Litigation, to the United
States District Court for the Western District of Pennsylvania on
Jan. 27, 2022.
The District Court Clerk assigned Case No. 2:22-cv-00152-JFC to the
proceeding.
The nature of suit is stated as Personal Injury: Health
Care/Pharmaceutical Personal Injury Product Liability.
Koninklijke Philips N.V. -- https://www.philips.com/global -- is a
Dutch multinational conglomerate corporation that was founded in
Eindhoven.[BN]
The Plaintiffs are represented by:
Christopher A. Seeger, Esq.
SEEGER WEISS LLP
55 Challenger Road 6th Floor
Ridgefield Park, NJ 07660
Phone: (212) 584-0700
Email: cseeger@seegerweiss.com
KROGER COMPANY: Class Action Settlement in Hawkins Gets Final Nod
-----------------------------------------------------------------
In the class action lawsuit captioned as SHAVONDA HAWKINS, on
behalf of herself and all others similarly situated, v. THE KROGER
COMPANY, Case No. 3:15-cv-02320-JM-AHG (S.D. Cal.), the Hon. Judge
Jeffrey T. Miller entered an order:
1. granting the Plaintiff's final approval of class action
settlement and motion for Attorneys' fees, costs, and
incentive award;
2. directing the Parties to implement the Settlement
according to its terms and conditions;
3. approving the Settlement Administration costs in the
amount of $79,635, to be paid from the common fund, to
Classaura LLC, deducted by an appropriate amount in order
to satisfy the two late-mailed claims;
4. approving Class Counsel's request for an award of
attorneys'fees and costs in the amount of $400,000; and
5. approving an incentive award to Plaintiff Shavonda Hawkins
in the amount of $7,000; and
The Class Members who timely filed a request to opt out of the
settlement are excluded from the class. The court retains
continuing jurisdiction over this settlement solely for the
purposes of enforcing the agreement, addressing settlement
administration matters, and addressing such post-judgment matters
as may be appropriate under Court rules and law.
This action arises from the labeling of Kroger breadcrumbs. The
Plaintiff purchased Kroger breadcrumbs in San Diego about six times
per year from 2000 to July of 2015.
Beginning in 2008, the front label of the breadcrumbs read "0g 28
Trans Fat." On the back of the breadcrumbs, the nutrition fact
label read "Trans Fat 0g" and included partially hydrogenated
vegetable oil ("PHO") as an ingredient. Because the breadcrumbs
contained PHO, they contained "trace amounts" of trans fat.
On October 15, 2015, the Plaintiff filed a putative class action
alleging violations of California's False Advertising Law, Unfair
Competition Law ("the UCL"), and Consumers Legal Remedies Act. The
Plaintiff also brought claims for breach of the implied warranty of
merchantability and breach of express warranty.
On March 17, 2016, the court granted Kroger's first motion to
dismiss. On November 16, 2018, the Ninth Circuit reversed and
remanded the case. On February 8, 2019, Kroger filed a second
motion to dismiss which the court denied.
On January 21, 2020, the Plaintiff filed a motion for class
certification. On November 9, 2020, the court certified the
following class:
"All citizens of California who purchased, between January 1,
2010 and December 31, 2015, Kroger Bread Crumbs containing
partially hydrogenated oil and the front label claim
"0g Trans Fat."
On December 29, 2020, the court denied Kroger's motion to
reconsider the court's class certification order. On January 13,
2021, Kroger filed a petition for permission to appeal the court's
class certification order to the Ninth Circuit which was denied.
Kroger is an American retail company that operates supermarkets and
multi-department stores throughout the United States.
A copy of the Court's order dated Feb. 4, 2021 is available from
PacerMonitor.com at https://bit.ly/3siozv6 at no extra charge.[CC]
KYMERA BODY BOARD: Paguada Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Kymera Body Board
LLC. The case is styled as Josue Paguada, on behalf of himself and
all others similarly situated v. Kymera Body Board LLC, Case No.
1:22-cv-01093 (S.D.N.Y., Feb. 8, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Kymera Body Board -- http://www.kymerabodyboard.com/-- is the
World's First Electric BodyBoard and remains the most popular
high-performance bodyboard on the market.[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
LEPRINO FOODS: Bates Seek to Certify Class of Hourly Workers
------------------------------------------------------------
In the class action lawsuit captioned as CHARLES Bates, an
individual, on behalf of himself and all others similarly situated,
v. LEPRINO FOODS COMPANY, a Colorado Corporation; LEPRINO FOODS
DAIRY PRODUCTS COMPANY, a Colorado Corporation; and DOES 1 through
100, inclusive, Case No. 2:20-cv-00700-AWI-BAM (E.D. Cal.), the
Plaintiff asks the Court to enter an order certifying the following
class:
"All non-exempt hourly workers who are currently employed, or
formerly have been employed, as non-exempt hourly employees
at Leprino's Tracy plant in Tracy, California, at any time
within four years prior to the filing of the original
complaint until the date the Court grants certification."
Leprino is an American company with headquarters in Denver,
Colorado that produces cheese, lactose, whey protein and sweet
whey.
A copy of the Plaintiff's motion to certify class dated Feb. 4,
2021 is available from PacerMonitor.com at https://bit.ly/3GxHXJN
at no extra charge.[CC]
The Plaintiff is represented by:
R. Rex Parris, Esq.
Kitty K. Szeto, Esq.
John M. Bickford, Esq.
Ryan A. Crist, Esq.
PARRIS LAW FIRM
43364 10th Street West
Lancaster, CA 93534
Telephone: (661) 949-2595
Facsimile: (661) 949-7524
E-mail: rrparris@parrislawyers.com
kszeto@parrislawyers.com
jbickford@parrislawyers.com
rcrist@parrislawyers.com
- and -
Eric Rouen, Esq.
THE DOWNEY LAW FIRM
9595 Wilshire Blvd., Suite 900
Beverly Hills, CA 90212
Telephone: (213) 291-3333
Facsimile: (610) 813-4579
E-mail: rouenlaw@att.net
M-I LLC: Order on Class Cert. Briefing, Hearing Dates Entered
-------------------------------------------------------------
In the class action lawsuit captioned as Donovin Last, an
individual, on behalf of himself and all others similarly situated,
v. M-I, LLC and DOES 1 through 10, Case No. 1:20-cv-01205-DAD-BAK
(E.D. Cal.), the Hon. Judge Erica P. Grosjean entered an order
regarding class certification briefing and hearing dates as
follows:
1. The Defendant's opposition to April 22, 2022
Plaintiff's motion for class
certification shall be filed
by:
2. The Plaintiff's reply to the May 20, 2022
opposition shall be filed by:
3. The hearing on Plaintiff's July 15, 2022
motion for class certification,
currently set for May 17, 2022,
is continued to:
M-I LLC provides services to the oil & gas industry. The Company
services include supplying drilling and completion fluid systems
and services.
A copy of the Court's order dated Feb. 4, 2021 is available from
PacerMonitor.com at https://bit.ly/3B7mztL at no extra charge.[CC]
The Plaintiff is represented by:
Maryjo L. Roberts, Esq.
THE KULLMAN FIRM
1100 Poydras Street, Suite 1600
New Orleans, LA 70163
Telephone: (504) 596-4195
Facsimile: (504) 596-4114
mlr@kullmanlaw.com
The Defendants are represented by:
Lonnie C. Blanchard, Esq.
THE BLANCHARD LAW GROUP, APC
5211 East Washington Blvd., No. 2262
Commerce, CA 90040
Telephone: (213) 599-8255
lonnieblanchard@gmail.com
MACY'S WEST: Appeals Class Cert. Ruling in Hawes Suit
-----------------------------------------------------
Macy's West Stores, Inc. filed an appeal from a court ruling
entered in the lawsuit entitled SARA HAWES et al., Plaintiff v.
MACY'S STORES WEST, INC., Defendant, Case No. 1:17-cv-00754, in the
United States District Court for the Southern District of Ohio at
Cincinnati.
This case is a putative class action about the labelling of
thread-counts in bedsheets. The backbone of Plaintiff Sara Hawes's
claims is that Defendants allegedly misrepresent -- and
specifically, inflate -- the thread-counts in sheets to sell them
to consumers. The Plaintiff claims these thread counts are
misleading.
As reported in the Class Action Reporter on Feb. 15, 2021,
Plaintiff Hawes asked the Court to enter an order:
1. certifying the case as a class action on behalf of:
"each person in California who purchased from Macy's a
"Chief Value Cotton" (CVC) cotton-polyester blend sheet
supplied by AQ Textiles between November 8, 2013, and the
date the class is certified;" and
2. directing the parties to confer about a proposed notice
and plan for its distribution to class members.
On May 12, 2021, the Defendant filed a motion to strike report and
exclude opinions of proposed experts Stefan Boedeker and Sean
Cormier. On July 21, 2021, the Plaintiff also filed a motion to
strike report and exclude opinions of proposed experts Sean Iyer
and Tushar Ghosh. On August 4, 2021, the Defendant once again filed
a motion to strike report and exclude opinions of proposed experts
Messrs. Boedeker and Cormier.
On January 22, 2022, the Court entered an order 1) granting
Plaintiff's Motion to Certify a Class; 2) denying Defendant's
Motion to Strike (Initial) Reports and Exclude Opinions of Proposed
Experts Boedeker and Cormier; 3) denying Plaintiff's Motions to
Strike Reports and Exclude Opinions of Proposed Experts Iyer and
Ghosh; and 4) granting Defendant's Motion to Strike the Second
Reports of Boedeker and Iyer.
The Defendant seeks a review of this order.
The appellate case is captioned as In re: Macy's West Stores, Inc.,
Case No. 22-303, in the United States Court of Appeals for the
Sixth Circuit, filed on Feb. 4, 2022.[BN]
Defendant-Petitioner In re: MACY'S WEST STORES, INC. is represented
by:
Beth A. Bryan, Esq.
TAFT, STETTINIUS & HOLLISTER
425 Walnut Street, Suite 1800
Cincinnati, OH 45202
Telephone: (513) 381-2838
E-mail: bryan@taftlaw.com
Plaintiff-Respondent SARA HAWES, Individually, and on behalf of all
others similarly situated, is represented by:
Drew T. Legando, Esq.
MERRIMAN, LEGANDO, WILLIAMS & KLANG
1360 W. Ninth Street, Suite 200
Cleveland, OH 44113
Telephone: (216) 522-9000
E-mail: drew@lgmlegal.com
MADSPORTSSTUFF LLC: Paguada Files ADA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against MadSportsStuff LLC.
The case is styled as Josue Paguada, on behalf of himself and all
others similarly situated v. MadSportsStuff LLC, Case No.
1:22-cv-01104 (S.D.N.Y., Feb. 8, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
MadSportsStuff -- https://www.madsportsstuff.com/ -- is an online
athletic wear company.[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
MARIETTA AREA: McCumbers Files Suit in S.D. Ohio
------------------------------------------------
A class action lawsuit has been filed against Marietta Area Health
Care Inc. The case is styled as Jason McCumbers, for himself and on
behalf of all others similarly situated v. Marietta Area Health
Care Inc. doing business as: Memorial Hospital System, Case No.
2:22-cv-00385-MHW-CMV (S.D. Ohio, Jan. 27, 2022).
The nature of suit is stated as Other Personal Property for Other
Contract.
Marietta Area Health Care Inc. doing business as Memorial Hospital
System -- https://mhsystem.org/ -- is a not-for-profit integrated
health system and manages a network of hospitals, clinics, and
physicians for the provision of emergency care, women's health,
cancer treatment, and pediatric services.[BN]
The Plaintiff is represented by:
Terence Richard Coates, Esq.
MARKOVITS, STOCK & DEMARCO, LLC
3825 Edwards Road, Suite 650
Cincinnati, OH 45209
Phone: (513) 651-3700
Fax: (513) 665-0219
Email: tcoates@msdlegal.com
MARINO MARBLE: Pereira Sues Over Failure to Pay Proper Wages
------------------------------------------------------------
CARLOS PEREIRA, VICTOR MANUEL, JAIME ROMERO and WILLIAM HOLMES,
individually and on behalf of all others similarly situated,
Plaintiffs v. MARINO MARBLE & TILE CORP. and DOMENICO MARINO and
ANTHONY RIZZUTO, as an individual, Defendants, Case No.
1:22-cv-00650 (E.D.N.Y., Feb. 4, 2022) seeks to recover damages for
Defendants' egregious violations of wage and hour laws under the
Fair Labor Standards Act and the New York Labor Law arising out of
Plaintiffs' employment with the Defendants.
The complaint alleges the failure of the Defendants to pay proper
minimum and overtime wages and failure to provide accurate wage
notices and wage statements to Plaintiffs.
The Plaintiffs were former employees of the Defendants with
different primary duties.
Marino Marble & Tile Corp. is a New York-based tile
manufacturer.[BN]
The Plaintiffs are represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Telephone: (718) 263-9591
MARK LINDON: TEUZA Files Suit in Del. Chancery Ct.
--------------------------------------------------
A class action lawsuit has been filed against Mark Lindon, et al.
The case is styled as TEUZA - A Fairchild Technology Venture Ltd.,
individually and on behalf of all others similarly situated v. Mark
Lindon, Alfred E. Mann Trust, Anoosheh Bostani, Bioventus Inc.,
David Scott, Joseph Ruble, Mann Group, LLC, Michael Dreyer,
Nicholas Terrafranca, Case No. 2022-0130-SG (Del. Chancery Ct.,
Feb. 8, 2022).
The case type is stated as "Breach of Fiduciary Duties."
Alfred E. Mann Trust -- https://aemf.org/ -- develop and
commercialize innovative solutions for significant unmet or poorly
met medical conditions.[BN]
The Plaintiffs are represented by:
Stephen E. Jenkins, Esq.
Phone: (302) 654-1888
Fax: (302) 654-2067
- and -
Michael Walker, Esq.
ASHBY & GEDDES
PO Box 1150
Wilmington, DE 19899
Phone: (302) 654-1888
Fax: (302) 654-2067
Email: mwalker@ashbygeddes.com
MATTHEW MARKS: Miller Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Matthew Marks
Gallery, LLC. The case is styled as Kimberly Miller, on behalf of
herself and all other persons similarly situated v. Matthew Marks
Gallery, LLC, Case No. 1:22-cv-01143 (S.D.N.Y., Feb. 9, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Matthew Marks -- https://matthewmarks.com/ -- is an art gallery
located in the New York City neighborhood of Chelsea and the Los
Angeles neighborhood of West Hollywood.[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
MCMILLAN-HENDRYX INC: $44.5K PAGA Settlement in Gilmore Suit OK'd
-----------------------------------------------------------------
In the lawsuit titled EDMOND TRENT GILMORE AND DANIEL GOWANS, on
behalf of themselves, all others similarly situated, and the State
of California Plaintiffs v. McMILLAN-HENDRYX INCORPORATED, dba
AMERICAN SEALS WEST, INC., GARY HENDRYX, JUSTIN HENDRYX, DEB C.
HALL, Defendants, Case No. 1:20-cv-00483-HBK (E.D. Cal.),
Magistrate Judge Helena M. Barch-Kuchta of the U.S. District Court
for the Eastern District of California approves the parties'
$44,500 PAGA Settlement.
On Dec. 22, 2021, Plaintiffs Edmond Trent Gilmore and Daniel Gowans
submitted their Motion for Approval of PAGA Settlement. Pursuant to
the Court's previous order, the Plaintiffs filed a supplemental
brief and evidence on Jan. 5, 2022. No opposition was filed.
Background
The initial complaint was filed on April 3, 2020. On June 25, 2020,
the Plaintiffs filed a first amended complaint asserting 13 causes
of action, including one under the Private Attorney General's Act
("PAGA"), California Labor Code Section 2699, et seq. In their PAGA
claim, the Plaintiffs assert they were aggrieved by certain of the
Defendants' labor and payroll practices.
The proposed settlement includes a total payment of $44,500 by the
Defendants on these terms: (a) $23,001.33 to Plaintiff Edmond Trent
Gilmore for settlement of his individual claim; (b) $2,091.03 to
Plaintiff Daniel Gowans for settlement of his individual claim; (c)
$18,362.12 to Mallison & Martinez as attorneys' fees and costs; and
(d) $1,045.52 in PAGA penalties ($784.14 to the state of
California, $261.38 to the aggrieved employees). The total
settlement amount will be paid in three equal installments over
ninety days and will accrue 10% interest for non-payment.
The Plaintiffs' counsel will distribute the PAGA penalties to the
government and to the employees. Counsel represents that in the
event funds remain undistributed or uncashed, after reasonably
diligent efforts, any funds from uncashed checks will be
distributed to the California Unclaimed Property/Wage Fund.
Under the Settlement, the named Plaintiffs release any claims they
have against the Defendants, including the PAGA claims. No other
claims are released. The Plaintiffs' counsel represents that the
Settlement clearly leaves individuals unhampered to pursue their
own individual wage claims under Arias v. Sup. Ct., 46 Cal. 5th 969
(2009). Any monies received by employees is an additional amount to
these claims and these payments may encourage individual employees
to pursue such claims.
No injunctive relief or other non-monetary relief is included in
the settlement.
Analysis
A. Satisfaction of Statutory Notice Requirements
The PAGA requires that any proposed settlement be submitted to the
California Labor & Workforce Development Agency (LWDA) at the same
time it is submitted to the court for approval.
Judge Barch-Kuchta finds that the Plaintiff has satisfied this
requirement.
B. Fairness, Adequacy, and Reasonable of the Settlement
Pursuant to the PAGA, 75% of civil PAGA penalties are paid to the
LWDA and 25% are paid to the PAGA employees. The Settlement
complies with this requirement.
Next, the Court considers whether the settlement of the PAGA claim
is fair, adequate and reasonable, as well as meaningful and
consistent with the purposes of the PAGA. Despite the Court's
concerns regarding the Plaintiffs' minimal transparency regarding
the value of the PAGA claim, the proceedings in this action, and
the attorney's fees attributable to the PAGA claim, the Court finds
the relevant factors weigh in favor of approval.
1. Strength of Plaintiff's Case/Risk and Cost of Further
Litigation
Counsel's evaluation of the strengths of the Plaintiffs' case and
risks of continued litigation is often helpful to a court
evaluating the fairness of a settlement. Here, however, the
Plaintiffs' counsel includes no information about their experience
with PAGA actions, Judge Barch-Kuchta notes. On this point, their
memorandum refers to paragraphs 12-14 of counsel's declaration, but
these paragraphs identify the exhibits attached to the declaration
and do not describe counsel's experience.
In any event, in their initial motion, the Plaintiffs do not
discuss the strength of the PAGA claim other than to represent that
an "intervening" change in law lowered their valuation of the case.
The law cited, ZB, N.A. v. Superior Court, 8 Cal. 5th 175, 193
(2019), was obviously issued prior to the filing of this case on
April 3, 2020, Judge Barch-Kuchta says.
In their supplemental briefing, the Plaintiffs estimate that using
liberal assumptions as to the extent and frequency of violations,
the Defendants' maximum PAGA exposure was approximately $25,000.
The Plaintiffs indicate that given this relatively low amount and
the few aggrieved employees, as well as the limitations of the
Defendants' recordkeeping, continued litigation of the PAGA claims
was not warranted.
Judge Barch-Kuchta opines that these calculations and analysis
leave extensive room for further explanation. However, the Court
recognizes the inherent risks and costs in any litigation matter,
and that the award of PAGA penalties is discretionary under Labor
Code Section 2699(e) and finds that this factor generally weighs in
favor of settlement.
2. Stage of the Proceeding
In their Joint Status Report of Jan. 7, 2021, submitted about nine
months after the case was filed, the parties represented that they
had a "discussion" of Rule 26 initial disclosures--indicating that
those disclosures had yet been exchanged nor discovery commenced.
In the pending motion, the Plaintiffs represent that by the time of
settlement, around August 2021, they had engaged in formal and
informal discovery; however, they provide no detail on the scope of
such efforts.
Judge Barch-Kuchta notes that this representation is somewhat
bolstered by the parties' Joint Statement of Aug. 11, 2021, in
which they represent that the Plaintiffs "served Defendants with
their Requests for Production of Documents, Electronic Information
and Tangible Things, Set One, Special Interrogatories, Set One, and
General and Employment Form Interrogatories, Set One." However, the
parties state that the Defendants served responses to this
discovery on Aug. 28, 2020--well before the Jan. 7, 2021 Joint
Status Report in which they represented they had yet to even
exchange initial disclosures.
The Plaintiffs' supplemental evidence indicates that they have
engaged in informal, if somewhat incomplete, discovery relating to
the number of pay periods potentially at issue. They also note that
part of the challenge of this case arises from the Defendants'
failure to maintain proper records. Thus, the record on the
discovery conducted in this case is, at best, muddled.
There has been no motion practice--not on the FLSA collective
action claim, the PAGA claim, or the Plaintiffs' individual claims,
Judge Barch-Kuchta observes. The parties appear to have engaged in
informal settlement negotiations. Given the foregoing, Judge
Barch-Kuchta holds that this factor is neutral.
3. Amount of PAGA Penalties
The PAGA penalties of $1,045.52, with $261.38 going to the
employees, is quite low in the abstract, Judge Barch-Kuchta states.
With just seven employees included this amounts to an average of
$37.34 per employee. The penalties amount to approximately 4.2% of
the maximum penalties calculated by the Plaintiffs and 2.3% of the
total settlement amount. These are not outside those approved in
other actions. Additionally, the LWDA has not objected to the
settlement. Therefore, the amount is not unreasonable and weighs in
favor of settlement, Judge Barch-Kuchta holds.
4. Allocation and Distribution of Penalties
The PAGA penalties will be distributed to employees on a pro-rata
basis "based upon the number of pay periods worked during the
relevant time period." Because of the limited number of employees,
the Plaintiffs' counsel will make the calculations and distribute
the awards, eliminating the need for a settlement administrator.
Judge Barch-Kuchta holds that this allocation and distribution
method is fair and reasonable, and weighs in favor of approval of
the PAGA settlement.
C. Reasonable Attorney's Fees
Because the Court is only required to approve the PAGA penalty, not
the individual settlements, the relevant portion of the attorney's
fees are those related to the PAGA claim. The Plaintiffs' counsel
failed to identify the portion of the PAGA Settlement allocated to
fees and, in providing a lodestar amount, failed distinguish
between the amount of time spent on the PAGA claim and the time
spent on individual claims.
Still, Judge Barch-Kuchta notes, because the amount counsel will
receive in the settlement is less than a quarter of their lodestar,
even if only a few hours of time are allocated to the PAGA claim,
the fee request is reasonable.
Conclusion
Accordingly, it is ordered:
(1) The Plaintiffs' Motion for Approval of PAGA Settlement is
granted;
(2) The Plaintiffs will file a declaration providing notice of
the PAGA penalty payments made pursuant to Paragraph 1.3
of the Settlement Agreement within 45 days of the date of
this Order; and
(3) If the Plaintiffs fail to file either a
Rule 41(a)(1)(A)(ii) dismissal or a notice of
noncompliance with the settlement within 105 days after
the date of this Order, the Court will dismiss this action
with prejudice.
A full-text copy of the Court's Order dated Jan. 20, 2022, is
available at https://tinyurl.com/3mwcf88p from Leagle.com.
MEDICAL REVIEW: White Files Suit in D. Utah
-------------------------------------------
A class action lawsuit has been filed against Medical Review
Institute of America. The case is styled as Shane White,
individually and on behalf of all others similarly situated v.
Medical Review Institute of America, Case No. 2:22-cv-00082-DBP (D.
Utah, Feb. 9, 2022).
The nature of suit is stated as Other P.I. for Personal Injury.
Medical Review Institute of America (MRIoA) --
https://www.mrioa.com/ -- delivers technology-enabled review
services that increase member satisfaction, decrease the costs of
decrease the costs of overutilization, provide benchmarking
analytics and empower members by offering them alternative choices
through patient-focused virtual second opinion services.[BN]
The Plaintiff is represented by:
Charles H. Thronson, Esq.
PARSONS BEHLE & LATIMER
201 S Main St., Ste. 1800
PO Box 45898
Salt Lake City, UT 84145-0898
Phone: (801) 532-1234
Email: ecf@parsonsbehle.com
MEREDITH WARD: Miller Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Meredith Ward Fine
Art, Inc. The case is styled as Kimberly Miller, on behalf of
herself and all other persons similarly situated v. Meredith Ward
Fine Art, Inc., Case No. 1:22-cv-01144 (S.D.N.Y., Feb. 9, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Meredith Ward Fine Art -- https://www.meredithwardfineart.com/ --
is an art gallery in New York City offering a wide selection of
artworks by leading artists.[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
MOON STAR: Mao Yun Chi Sues Over Unpaid Wages for Kitchen Helpers
-----------------------------------------------------------------
MAO YUN CHI, individually and on behalf of all others similarly
situated, Plaintiff v. MOON STAR LLC D/B/A MOON STAR CHINESE
RESTAURANT, TING LEI ZHENG, TING CHEN, XIU ZHEN YANG, and SAI ZHU
LIN, Defendants, Case No. 3:22-cv-00222 (D. Conn., February 8,
2022) is a class action against the Defendants for unpaid minimum
wages and overtime compensation in violation of the Fair Labor
Standards Act and Connecticut Wage and Hour Law, breach of
contract, breach of the implied covenant of good faith and fair
dealing, unjust enrichment and quantum meruit.
Plaintiff Chi was employed by the Defendants as a kitchen helper at
Moon Star Chinese Restaurant from December 2020 to January 30,
2022.
Moon Star LLC, doing business as Moon Star Chinese Restaurant, is a
restaurant owner and operator located 20 H Main St., Windsor Locks,
Connecticut. [BN]
The Plaintiff is represented by:
Jian Hang, Esq.
HANG & ASSOCIATES, PLLC
136-20 38th Ave., Suite 10G
Flushing, NY 11354
Telephone: (718) 353-8588
E-mail: jhang@hanglaw.com
NAVIENT CORP: Awaits Final OK of Accord in Securities Suit
----------------------------------------------------------
The parties in the consolidated case captioned, "In Re Navient
Corporation Securities Litigation," are awaiting final court
approval of the deal.
A settlement hearing is set for March 17, 2022 at 2:00 p.m.
Objections are due February 24, 2022. Proofs of claim must be
filed April 13, 2022.
The settlements of the consolidated class action lawsuits have been
preliminary approved, SLM Student Loan Trust 2010-1 disclosed in
its Distribution Report on Form 10-D for the distribution period
from November 1, 2021 to November 30, 2021, filed with the
Securities and Exchange Commission on January 10, 2022.
Two putative class actions have been filed in the U.S. District
Court for the District of New Jersey captioned "Eli Pope v. Navient
Corporation, John F. Remondi, Somsak Chivavibul and Christian
Lown," and "Melvin Gross v. Navient Corporation, John F. Remondi,
Somsak Chivavibul and Christian M. Lown", both of which allege
violations of the federal securities laws under Sections 10(b) and
20(a) of the Securities Exchange Act of 1934, as amended.
The cases were consolidated by the Court in February 2018 under the
caption "In Re Navient Corporation Securities Litigation" and the
plaintiffs filed a consolidated amended complaint in April 2018. In
September 2021, Navient reached agreements to settle both cases.
The settlements, in which Navient and the other defendants
expressly deny any admission or concession of wrongdoing or fault,
have been preliminarily approved by the Courts but are still
subject to final approval after notice and hearing. Navient
expects the settlements to be covered by insurance and can give no
assurance whether or when the settlements will receive final
approvals.
Additional information on the case is available at:
https://www.navientsecuritieslitigation.com
SLM Student Loan Trust 2010-1 is in to backed securities based in
Virginia. Navient Solutions, LLC (formerly, Navient Solutions,
Inc.), is the administrator of its student Loan-Backed Notes.
NEW MILLENNIUM: Accord Over Omitted Exhibit in Farrell Suit OK'd
----------------------------------------------------------------
In the lawsuit entitled TARA FARRELL, HENLY VELARDE, and DOUGLAS
WELLS, individually and on behalf of all others similarly situated,
Plaintiffs v. NEW MILLENNIUM CONCEPTS, LTD., Defendant, Case No.
2:21-cv-01691-JAM-JDP (E.D. Cal.), Judge John A. Mendez of the U.S.
District Court for the Eastern District of California approves the
parties' stipulation relating to an inadvertently omitted exhibit.
Plaintiffs Tara Farrell, Henly Velarde, and Douglas Wells and
Defendant New Millennium Concepts, Ltd., enter into this
Stipulation regarding the Plaintiffs' Ex Parte Motion for Relief
from Inadvertently Omitted Exhibit 7 in Support of Plaintiffs'
Oppositions to Defendant's Rule 12(b)(2) and Rule 12(b)(3) Motions
and to Extend or Continue Related Dates. Granting the relief
requested would fully resolve and moot the issues raised in the
Plaintiffs' Ex Parte Motion.
Recitals
On Sept. 16, 2021, the Plaintiffs filed the putative class action
against the Defendant to assert false advertising and warranty
claims on behalf of California and United States consumers. On Nov.
11, 2021, the Defendant filed three motions in response to the
Complaint, which were originally set for hearing on Jan. 25,
20221--specifically, a Fed. R. Civ. P. 12(b)(2) motion to challenge
personal jurisdiction; a motion to transfer venue; and a Fed. R.
Civ. P. 12(b)(6) motion to challenge the sufficiency of allegations
in the complaint to state a claim.
Based on the Jan. 25, 2022 hearing date, the Plaintiffs'
oppositions were due on Jan. 11, 2022, and the Defendant's replies
were due on Jan. 18, 2022. On Jan. 11, 2022, the Plaintiffs filed
oppositions to the Defendant's Motions, including a single set of
evidence (declarations and exhibits) to support the Plaintiffs'
oppositions to the Defendant's Rule 12(b)(2) Motion and Motion to
Transfer Venue.
On Jan. 18, 2022, the Plaintiffs' counsel realized that Exhibit 7
to their oppositions to the Defendant's Rule 12(b)(2) Motion and
Motion to Transfer Venue was inadvertently omitted from the Jan.
11, 2022 filing as a result of their counsel's clerical error
alone, and, as such, the counsel immediately initiated
communications with the Defendant's counsel via telephone and email
to confer regarding the error and propose a stipulation consistent
with the relief requested in the Plaintiffs' Ex Parte Motion.
At around the same time that the parties were conferring on Jan.
18, 2022, the Plaintiffs filed a notice of errata that attaches
Exhibit 7. Due to the late hour on Jan. 18, 2022, the Defendant's
counsel was unable to immediately stipulate to the requested
relief.
On Jan. 18, 2022, the Plaintiffs filed the Plaintiffs' Ex Parte
Motion, without delay, to provide the Court with the earliest
opportunity to issue orders granting relief and basing it, in part,
on heavily disputed arguments regarding the import of Exhibit 7 to
establish that irreparable harm would result if this Court grants
the Defendant's Rule 12(b)(2) Motion without considering Exhibit 7
due to its untimely filing.
The Defendant vigorously disputes the import of Exhibit 7 to the
Defendant's pending Rule 12(b)(2) Motion, but in any event,
contends that it has already addressed the issues raised in Exhibit
7 in its recently filed reply. Because the Defendant has already
addressed the issues raised by Exhibit 7, the Defendant and the
Plaintiffs agree that additional time for briefing or a continuance
of the originally scheduled hearing are not required as a result of
the late-filed exhibit.
The Defendant and the Plaintiffs agree that, by this Stipulation,
it obviates the need to engage in contentious arguments regarding
the relevance of Exhibit 7 in the context of an ex parte motion
because the proposed stipulated orders contained here should
resolve the Plaintiffs' Ex Parte Motion without burdening the Court
with the review of additional papers.
On Jan. 19 and 20, 2022, the Plaintiffs' and the Defendant's
counsel further conferred via email and telephone regarding the
relief requested in the Plaintiffs' Ex Parte Motion and, based upon
the totality of their efforts and the facts set forth herein, have
reached the following agreement that resolves and moots the
Plaintiffs' Ex Parte Motion without requiring the further
expenditure of judicial or party resources on this matter.
Stipulation
Therefore, the parties further stipulate and agree to these
proposed orders:
i. Plaintiffs' Exhibit 7, filed with the Plaintiffs' notice
of errata on Jan. 18, 2022, will be considered by the
Court as though it were timely filed on Jan. 11, 2022, in
connection with the Plaintiffs' oppositions to Defendant
New Millennium Concepts, Ltd.'s Rule 12(b)(2) Motion and
Motion to Transfer Venue;
ii. The current briefing schedule in connection with
the Defendant's Rule 12(b)(6) Motion and Motion to
Transfer Venue remain unaltered, unless further notified
by the Court; and
iii. The relief will avoid any undue prejudice to any party,
conserve judicial and party resources, and serve the ends
of justice.
It is so stipulated.
Pursuant to the parties' stipulation, it is so ordered.
A full-text copy of the Court's Stipulation and Order dated Jan.
20, 2022, is available at https://tinyurl.com/2p8tjetd from
Leagle.com.
CLARKSON LAW FIRM, P.C., Katherine A. Bruce --
kbruce@clarksonlawfirm.com -- Ryan J. Clarkson --
rclarkson@clarksonlawfirm.com -- Shireen M. Clarkson --
sclarkson@clarksonlawfirm.com -- Kelsey J. Elling --
kelling@clarksonlawfirm.com -- in Malibu, California, Attorneys for
the Plaintiffs.
HAYNES AND BOONE, LLP, Michelle C. Jacobs --
michelle.jacobs@haynesboone.com -- Mark D. Erickson --
mark.erickson@haynesboone.com -- Attorneys for the Defendant.
NEW YORK, NY: Jacobson COVID-19 Suit Seeks to Certify Class
-----------------------------------------------------------
In the class action lawsuit captioned as William A. Jacobson, on
behalf of himself and others similarly situated, v. Mary T.
Bassett, in her official capacity as Acting Commissioner of the New
York Department of Health, Case No. 3:22-cv-00033-MAD-ML
(N.D.N.Y.), the Plaintiff asks the Court to enter an order:
1. Certifying the proposed class consisting of:
"all individuals in New York State who do not qualify as
"non-white race or Hispanic/Latino ethnicity" under the
New York Department of Health's guidelines for
distributing COVID-19 treatments;" and
2. Appointing him as class representative.
The New York City Department of Health and Mental Hygiene is the
department of the government of New York City responsible for
public health along with issuing birth certificates, dog licenses,
and conducting restaurant inspection and enforcement.
The New York City Board of Health is part of the department.
A copy of the Plaintiff's motion to certify class dated Feb. 4,
2021 is available from PacerMonitor.com at https://bit.ly/3B7mgPD
at no extra charge.[CC]
The Plaintiff is represented by:
Gene P. Hamilton, Esq.
VICE-PRESIDENT AND GENERAL COUNSEL
AMERICA FIRST LEGAL FOUNDATION
300 Independence Avenue SE
Washington, DC 20003
Telephone: (202) 964-3721
E-mail: gene.hamilton@aflegal.org
- and -
Adam K. Mortara, Esq.
LAWFAIR LLC
125 South Wacker Drive Suite 300
Chicago, IL 60606
Telephone: (773) 750-7154
E-mail: adam@mortaralaw.com
- and -
James P. Trainor, Esq.
TRAINOR LAW PLLC
2452 U.S. Route 9
Malta, NY 12020
Telephone: (518) 899-9200
Facsimile: (518) 899-9300
E-mail: jamest@trainor-lawfirm.com
- and -
Jonathan F. Mitchell, Esq.
MITCHELL LAW PLLC
111 Congress Avenue, Suite 400
Austin, TX 78701
Telephone: (512) 686-3940
Facsimile: (512) 686-3941
E-mail: jonathan@mitchell.law
- and -
Jeffrey Harris, Esq.
Michael Connolly, Esq.
James Hasson, Esq.
CONSOVOY MCCARTHY PLLC
1600 Wilson Boulevard, Suite 700
Telephone: (703) 243-9423
Arlington, VA 22209
E-mail: jeff@consovoymccarthy.com
mike@consovoymccarthy.com
james@consovoymccarthy.com
NEW YORK, NY: Malcolm, et al., Seek More Time to File Reply
-----------------------------------------------------------
In the class action lawsuit captioned as Malcolm, et al., v. City
of New York, Case No. 1:20-cv-09641-ALC (S.D.N.Y.), the Plaintiffs
ask the Court to enter an order extending the time to file a reply
until February 21, 2022.
The reason for this request is that the attorneys responsible for
this case and their families contracted covid earlier this year and
the interruption has caused a backlog in work, Plaintiffs' counsel
say.
The current deadline for filing Plaintiff's reply in further
support of Plaintiffs' Motion for Conditional Certification
and Court authorized notice to the collective is Monday, February
7, 2022.
A copy of the Plaintiffs' motion dated Feb. 4, 2021 is available
from PacerMonitor.com at https://bit.ly/3ryQ1Wn at no extra
charge.[CC]
The Plaintiff is represented by:
Steven J. Moser, Esq.
MOSER LAW FIRM, PC
Telephone: (516) 671-1150
E-mail: steven.moser@moserlawfirm.com
NP IN FAMILY: Abreu Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against NP In Family Health
on Demand 247 PLLC. The case is styled as Luigi Abreu,
individually, and on behalf of all others similarly situated v. NP
In Family Health on Demand 247 PLLC, Case No. 1:22-cv-01095
(S.D.N.Y., Feb. 8, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
NP In Family Health On Demand 247 PLLC is a health care
organization in Brooklyn with Nurse Practitioner listed as their
primary medical specialization.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
MIZRAHI & KROUB LLP
200 Vesey St, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: jmizrahi@mizrahikroub.com
O.B.'S BAKERY: Richards Sues Over Unpaid Wages for Bakery Staff
---------------------------------------------------------------
MYRAN RICHARDS, individually and on behalf of all others similarly
situated, Plaintiff v. O.B.'S BAKERY INC., d/b/a OB'S BAKERY AND
RESTAURANT, and OB EXPRESS, LTD., d/b/a OB'S EXPRESS, and OMAR
DICKENS, Defendants, Case No. 2:22-cv-00711 (E.D.N.Y., February 8,
2022) is a class action against the Defendants for violations of
the Fair Labor Standards Act and the New York Labor Law including
failure to pay minimum wages, failure to pay overtime wages,
failure to pay spread-of-hours premiums, failure to furnish
accurate wage statements, failure to furnish accurate wage notices,
and retaliation.
The Plaintiff worked for the Defendant as a kitchen assistant from
January 2016 until September 10, 2021.
O.B.'S Bakery Inc., doing business as OB'S Bakery and Restaurant,
is a bakery owner and operator located at 16576 Baisley Boulevard,
Jamaica, New York.
OB Express, Ltd., doing business as OB'S Express, is a bakery owner
and operator located at 2034 Green Acres Road South, Valley Stream,
New York. [BN]
The Plaintiff is represented by:
Andrew C. Weiss, Esq.
Alexander T. Coleman, Esq.
Michael J. Borrelli, Esq.
BORRELLI & ASSOCIATES, P.L.L.C.
910 Franklin Avenue, Suite 200
Garden City, NY 11530
Telephone: (516) 248-5550
Facsimile: (516) 248-6027
OPTIO SOLUTIONS: Nabozny's FDCPA Suit Dismissed Without Prejudice
-----------------------------------------------------------------
In the case, MARY CLARK NABOZNY, Plaintiff v. OPTIO SOLUTIONS, LLC
d.b.a. QUALIA COLLECTION SERVCES, Defendant, Case No. 21-cv-297-jdp
(W.D. Wis.), Judge James D. Peterson of the U.S. District Court for
the Western District of Wisconsin granted Optio's motion to dismiss
and dismissed the case without prejudice; and granted the
Plaintiff's motion for leave to file a sur-reply.
I. Background
The lawsuit is a proposed class action in which Plaintiff Nabozny
alleges that Defendant Optio, a debt collection agency, violated
the Fair Debt Collection Practices Act (FDCPA) when it shared
information about Nabozny's debt with a company that processes and
mails debt collection letters.
Ms. Nabozny alleges that Optio shared information about her debt
with RevSpring, a company that processes and mails debt collection
letters. The information included the existence of the debt, the
amount owed, the alleged creditor, and Nabozny's name and address.
Optio could have prepared the letter and sent it without running
afoul of the FDCPA. But Nabozny contends that in sharing this
information with RevSpring, Optio violated 15 U.S.C. Section
1692c(b), which prohibits debt collectors from communication with
most third parties.
RevSpring, as a provider of clerical services, is not among the
expressly permitted third parties
Optio moves to dismiss, contending that Nabozny does not have
standing because she has not suffered an injury in fact.
II. Discussion
Optio contends that Nabozny does not have standing to bring the
suit. Standing doctrine requires Nabozny to show that she suffered
an injury in fact that is both fairly traceable to the challenged
conduct of the defendant and likely to be redressed by a favorable
judicial decision. Optio contends that Nabozny has not demonstrated
an injury in fact, which the Supreme Court has defined as "an
invasion of a legally protected interest" that is "concrete and
particularized."
Ms. Nabozny does not allege that sharing her information caused her
to suffer any tangible harm. A "bare procedural violation" of a
statute like the FDPCA does not qualify as a concrete injury, even
if it gives rise to a statutory cause of action. But "intangible
harms can nevertheless be concrete." Nabozny contends that she
suffered a concrete harm because sharing information about her debt
with RevSpring violated her right to privacy, a concrete interest
that the FDCPA was designed to protect.
Judge Peterson explains that to determine whether an intangible
harm constitutes an injury in fact, the Court must look both to
historical conceptions of actionable harms and to the judgment of
Congress. The historical inquiry asks "whether the asserted harm
has a 'close relationship' to a harm 'traditionally' recognized as
providing a basis for a lawsuit in American courts." As for the
judgment of Congress, the Court must afford due respect to
Congress's decision to impose a statutory provision on a defendant
and grant a plaintiff a cause of action. But a statutory violation
causes an injury in fact only if the violation "harmed or presented
an appreciable risk of harm to the underlying concrete interest
that Congress sought to protect."
A. Historical conceptions of actionable harm
Ms. Nabozny contends that her alleged harm bears a close
relationship to common-law torts for invasion of privacy. It is
well-established that "violations of rights of privacy are
actionable." But the Seventh Circuit recently clarified that
analogy to a broad category of tort, such as "invasion of privacy,"
is not enough to show that an alleged harm has a close relationship
to an action at common law. Instead, the alleged harm must have a
close relationship to a specific "theory of wrongdoing."
Judge Peterson finds that Nabozny's alleged injury does not have a
close relationship to the tort because disclosure to a third party
provider of clerical services is not tantamount to disclosure to
the public. The harm of the tort is not the mere fact of
disclosure. Instead, it is that private facts will become widely
known, or at least known by people with a close relationship to the
plaintiff. Optio's disclosure to RevSpring would not result in that
harm. Nabozny does not have a relationship with RevSpring such that
its knowledge of her debt causes Nabozny any amount of
embarrassment. Nor is disclosure to a third party vendor the sort
of disclosure that is certain -- or even likely -- to reach the
public or anyone outside of RevSpring. Indeed, sharing information
with a subcontractor is not meaningfully different than sharing the
information among Optio's own employees in the course of their
work.
Judge Peterson agrees with the courts that have concluded that
disclosure to a third party provider of clerical services differs
from disclosure to the public in kind, not merely in degree. A debt
collector that outsources the mechanical tasks of preparing and
mailing letters that the debt collector itself is authorized to
send does not inflict any concrete injury on the debtor.
B. Judgment of Congress
Courts must respect Congress' decision to create a statutory
obligation and a corresponding cause of action, because Congress is
well-positioned to identify intangible harms that are nevertheless
concrete. But courts must still independently decide whether a
plaintiff alleges an injury in fact as opposed to a mere injury in
law. As for the FDCPA, a violation causes an injury in fact only if
the violation "harmed or presented an appreciable risk of harm to
the underlying concrete interest that Congress sought to protect."
Judge Peterson opines that the harm that Nabozny alleges does not
harm an interest the FDCPA sought to protect. The FDCPA was passed
"to protect consumers from a host of unfair, harassing, and
deceptive debt collection practices without imposing unnecessary
restrictions on ethical debt collectors." To be sure, the FDCPA
was concerned with "invasions of individual privacy," as a general
matter. But the concrete interest protected by a statute is defined
with an eye toward the actual harms Congress sought to prevent.
And in the case, Congress identified the third-party disclosures
that rose to the level of "collection abuse": "disclosing a
consumer's personal affairs to friends, neighbors, or an employer."
Those kinds of contacts are "not legitimate collection practices
and result in serious invasions of privacy, as well as the loss of
jobs." The record shows that Congress was concerned with
disclosures to people who knew the debtor, not limited disclosures
to third-party providers of clerical services.
The inaction of the Consumer Financial Protection Bureau (CFPB),
the agency tasked with promulgating regulations to implement the
FDCPA, is further evidence that Congress did not seek to prevent
the use of outside vendors to send collection letters. The CFPB is
aware that most debt collection agencies use third-party vendors to
send written communications. But the CFPB did not address the
practice in the newest regulations implementing the FDCPA, despite
creating several other rules related to permissible communications.
The CFPB's judgment is not a direct expression of the judgment of
Congress. But an agency tasked with implementing a statute is
presumed to have unique insight into how to fulfill the statute's
purposes. And in the case, the CFPB's inaction suggests that
disclosure to a third-party provider of clerical services does not
harm an interest the FDCPA was designed to protect.
III. Conclusion & Order
Judge Peterson concludes that Nabozny has suffered no concrete
injury. Sharing information with a third-party provider of clerical
services is not analogous to disclosure to the world at large. And
disclosure to such vendors is not the sort of harm the FDCPA was
meant to prevent. Both history and the judgment of Congress suggest
that Nabozny does not have standing to bring the suit.
Therefore, Judge Peterson granted the Plaintiff's motion for leave
to file a sur-reply. He also granted the Defendant's motion to
dismiss and dismissed the case without prejudice for lack of
subject matter jurisdiction. The Clerk of Court is directed to
enter judgment and close the case.
A full-text copy of the Court's Feb. 1, 2022 Opinion & Order is
available at https://tinyurl.com/4chf79ht from Leagle.com.
PFIZER INC: Adams Files Suit in S.D. New York
---------------------------------------------
A class action lawsuit has been filed against Pfizer Inc. The case
is styled as Ida Adams, Virginia Aragon, Golbenaz Bakhtiar,
Jonathan Ferguson, Michael Galloway, Alberta Griffin, Ronda
Lockett, Ricardo Moron, Richard Obrien, Jeffrey Pisano, Chris
Troyan, Gustavo Velasquez, Joshua Winans, on behalf of themselves
and all others similarly situated v. Pfizer Inc., Case No.
1:22-cv-00747-VM (S.D.N.Y., Jan. 28, 2022).
The nature of suit is stated as Personal Injury: Health
Care/Pharmaceutical Personal Injury Product Liability.
Pfizer Inc. -- https://www.pfizer.com/ -- is an American
multinational pharmaceutical and biotechnology corporation
headquartered on 42nd Street in Manhattan, New York City.[BN]
The Plaintiff is represented by:
Melissa Ryan Clark, Esq.
MILBERG TADLER PHILLIPS GROSSMAN LLP (NYC)
One Pennsylvania Plaza, 19th Floor
New York, NY 10119
Phone: (212) 594-5300
Fax: (212) 868-1229
Email: melissa@feganscott.com
PFIZER INC: Smith Files Suit in S.D. New York
---------------------------------------------
A class action lawsuit has been filed against Pfizer Inc. The case
is styled as Tammy Smith, Andy Green Jr., Bakhtiar Golbenaz,
Richard Obrien, Virginia Aragon, Jeffrey Pisano, Angel Cordero,
Gustavo Velasquez, Joshua Winans, Richardo Moron, Roy Armstrong,
Sonia Diaz, Kathy Jeffries, Earlene Green, Charles Longfield, Janet
Asbury, Randy Jones, Alberta Griffin, Ida Adams, Jerry Hunt,
Lakisha Wilson, Donald Northrup, John Scholl, Beverly Crosby, John
Rachal, Gaylord Stauffer, Benny Fazio, Mary McCullen, Dennis
Robbins, Chris Troyan, Michael Galloway, Nicholas Hazlett, Gloria
Colon, Dale Hunter, Kenneth Hix, Sylvia Yoshida, Ronda Lockett,
Marianella Villanueva, Dan Zhovtis, Jonathan Ferguson, Steve
Fischer, Wendy Quezaire, on behalf of themselves and all other
similarly situated v. Pfizer Inc., Case No. 1:22-cv-00746-VM
(S.D.N.Y., Jan. 28, 2022).
The nature of suit is stated as Personal Injury: Health
Care/Pharmaceutical Personal Injury Product Liability.
Pfizer Inc. -- https://www.pfizer.com/ -- is an American
multinational pharmaceutical and biotechnology corporation
headquartered on 42nd Street in Manhattan, New York City.[BN]
The Plaintiff is represented by:
Melissa Ryan Clark, Esq.
MILBERG TADLER PHILLIPS GROSSMAN LLP (NYC)
One Pennsylvania Plaza, 19th Floor
New York, NY 10119
Phone: (212) 594-5300
Fax: (212) 868-1229
Email: melissa@feganscott.com
PIZZERIA OF ISLIP: Echevarria Sues Over Cooks' Unpaid Wages
-----------------------------------------------------------
JUAN CARLOS ECHEVARRIA, on behalf of himself and all other persons
similarly situated, Plaintiff v. THE PIZZERIA OF ISLIP LLC, SCOPA6,
LLC d/b/a GINO’S OF COMMACK, and PAUL SACCOCCIO, Defendants, Case
No. 2:22-cv-00653 (E.D.N.Y., Feb. 4, 2022) is a class action
brought by the Plaintiff seeking to recover from Defendants unpaid
overtime wages under the Fair Labor Standards Act and to recover
damages for violations the New York Labor Law and the supporting
New York State Department of Labor Regulations.
The Plaintiff was employed by the Defendants as a cook at Gino's in
2020 and at the Pizzeria from March 2021 to November 2021.
The Defendants own and operate restaurants located throughout the
County of Suffolk, State of New York including, but not limited to,
Gino's of Commack and The Pizzeria.[BN]
The Plaintiff is represented by:
Peter A. Romero, Esq.
LAW OFFICE OF PETER A. ROMERO PLLC
490 Wheeler Road, Suite 250
Hauppauge, NY 11788
Telephone: (631) 257-5588
PLAINS MARKETING: Wake Energy Files Suit in D. Wyoming
------------------------------------------------------
A class action lawsuit has been filed against Plains Marketing LP.
The case is styled as Wake Energy LLC, on behalf of itself and all
others similarly situated v. Plains Marketing LP, Case No.
0:22-cv-00025-SWS (D. Wyo., Feb. 8, 2022).
The nature of suit is stated as Other Contract for Contract
Dispute.
Plains Marketing, L.P. -- https://www.plains.com/ -- operates as a
midstream energy company. The Company provides energy
infrastructure and logistics services for crude oil, natural gas
liquids, and natural gas, as well as owns pipeline transportation,
terminalling, storage, and gathering assets.[BN]
The Plaintiff is represented by:
Richard A Erb , Jr
222 South Gillette Avenue, Suite 310
P O Box 36
Gillette, WY 82717
Phone: (307) 682-0215
Fax: (307) 682-1339
Email: Rick@rickerb.com
PLURIS WEDGEFIELD: Kohl's Class Cert. Bid Tossed w/o Prejudice
--------------------------------------------------------------
In the class action lawsuit captioned as JESSICA KOHL and MATTHEW
KOHL, individually, and on behalf of a class of persons similarly
situated, v. PLURIS WEDGEFIELD, LLC, PLURIS HOLDINGS, LLC, and
PLURIS WEDGEFIELD, INC., Case No. 6:20-cv-01683-CEM-GJK (M.D.
Fla.), the Hon. Magistrate Judge David A. Baker entered an order:
1. denying without prejudice the plaintiff's motion for class
certification; and
2. vacating the Notice of Hearing.
On September 14, 2020, the Plaintiffs' Complaint against the
Defendants was removed to this Court under the Class Action
Fairness Act, 28 U.S.C. section 1332(d).
On October 29, 2021, the Plaintiffs filed a motion seeking class
certification pursuant to Rule 23 of the Federal Rules of Civil
Procedure.
On December 13, 2021, the Defendants filed its response in
opposition to Plaintiffs' Motion. On January 20, 2022, the
Plaintiffs filed their reply brief in support of their Motion.
On January 31, 2022, the undersigned set a hearing on the Motion
for February 23, 2022, at 10:00 A.M. On February 1, 2022, upon sua
sponte review of the record, the Court issued an Order to Show
Cause as to why the case should not be remanded for failure to
adequately establish subject matter jurisdiction, pursuant to 28
U.S.C. section 1332(d)(4)(A).
Pluris owns and operates water and wastewater utilities that are
regulated by public utility commissions.
A copy of the Court's order dated Feb. 4, 2021 is available from
PacerMonitor.com at https://bit.ly/3gxyQhK at no extra charge.[CC]
QIHOO 360: Court Approves Service of Altimeo Complaint to Zhou & Qi
-------------------------------------------------------------------
In the case, ALTIMEO ASSET MANAGEMENT, Individually and On Behalf
of All Others Similarly Situated, Plaintiff v. QIHOO 360 TECHNOLOGY
CO. LTD., HONGYI ZHOU, XIANGDONG QI and ERIC X. CHEN, Defendants,
Case No. 1:19-cv-10067-PAE (S.D.N.Y.), Judge Paul A. Engelmayer of
the U.S. District Court for the Southern District of New York
granted the Lead Plaintiffs' motion for an order permitting service
of Defendants Hongyi Zhou and Xiangdong Qi.
The Lead Plaintiffs filed the motion on Jan. 28, 2022, seeking
entry of an order pursuant to Federal Rule of Civil Procedure
4(f)(3), directing service of the Summons and the Amended Class
Action Complaint for Violations of the Federal Securities Laws upon
Defendants Hongyi Zhou and Xiangdong Qi.
The Lead Plaintiffs are to serve Defendants Hongyi Thou and
Xiangdong Qi by publication in the International Edition of the New
York Times as outlined in the Motion. They are to serve these
Defendants by electronic messages as outlined in the Motion, by the
following means: (I) Defendant Zhou through his LinkedIn account;
(2) Defendants Zhou through his Weibo account; (3) Defendant Zhou
through his Weibo Taiwan account; (4) Defendant Zhou through his
360 Group email address, zhy@360.cn email address; (6) Defendant
Zhou through Qihoo's publicly listed email addresses kefu@360.cn
and media@360.cn; and (5) Defendant Qi through the
18311062936@163.com email address that several of his businesses
use.
The Lead Plaintiffs are to serve Defendant Hongyi Zhou through 360
DigiTech, Inc. and through the counsel for Qihoo 360 Technology Co.
LTD, as outlined in the Motion.
The Court directed the Lead Plaintiffs to effect all of the
described methods of service.
A full-text copy of the Court's Feb. 1, 2022 Order is available at
https://tinyurl.com/bdfaauh5 from Leagle.com.
R.C. QUIGGLE: Paguada Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against R.C. Quiggle, Inc.
The case is styled as Josue Paguada, on behalf of himself and all
others similarly situated v. R.C. Quiggle, Inc., Case No.
1:22-cv-01085 (S.D.N.Y., Feb. 8, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
R.C. Quiggle Inc. doing business as Q-sport Activewear --
https://www.q-sport.com/ -- sells a wide variety of sports
clothing, shoes, equipment, and accessories.[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
RAINBOW USA: Hicks Suit Removed to S.D. Florida
-----------------------------------------------
The case styled as Stephanie Hicks, individually and on behalf of
all others similarly situated v. Rainbow USA Inc., Case No.
CACE-22-000112 was removed from 17th Judicial Circuit Court, to the
U.S. District Court for the Southern District of Florida on Feb. 9,
2022.
The District Court Clerk assigned Case No. 0:22-cv-60304-WPD to the
proceeding.
The nature of suit is stated as Constitutional - State Statute.
Rainbow USA Inc. -- http://www.rainbowshops.com/-- is a privately
held, moderately priced American retail apparel chain comprising
several lifestyle brands primarily targeting teens and young
women.[BN]
The Plaintiff is represented by:
Manuel Santiago Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Blvd. Ste 1400
Fort Lauderdale, FL 33394
Phone: (954) 400-4713
Email: mhiraldo@hiraldolaw.com
The Defendant is represented by:
Tonya M. Esposito, Esq.
SEYFARTH SHAW
975 F Street, NW
Washington, DC 20004
Phone: (202) 828-5375
Email: tesposito@seyfarth.com
RAPID PALLET: Williams Sues Over Failure to Pay Proper Overtime
---------------------------------------------------------------
MICHAEL WILLIAMS, individually and on behalf of all others
similarly situated, Plaintiff v. RAPID PALLET, INC., Defendant,
Case No. 3:22-cv-00177-RDM (M.D. Pa., Feb. 4, 2022) is brought
against the Defendant for unpaid overtime, liquidated damages,
attorneys' fees, costs and other relief for violations of the Fair
Labor Standards Act, the Pennsylvania Minimum Wage Act, and the
Pennsylvania common law.
The Plaintiff and the Class Members are or were employed by the
Defendant as hourly employees to manufacture, produce, construct,
and assemble pallets and skids for use in shipping.
Rapid Pallet, Inc. is a Pennsylvania-based pallet supplier.[BN]
The Plaintiff is represented by:
Camille Fundora Rodriguez, Esq.
Alexandra K. Piazza, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-3000
Facsimile: (215) 875-4604
E-mail: crodriguez@bm.net
apiazza@bm.net
- and -
Scott E. Brady, Esq.
Philip Bohrer, Esq.
BOHRER BRADY, LLC
8712 Jefferson Highway, Suite B
Baton Rouge, LA 70809
Telephone: (225) 925-5297
Facsimile: (225) 231-7000
E-mail: scott@bohrerbrady.com
phil@bohrerbrady.com
REEVES INTERNATIONAL: Hedges Files ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Reeves International,
Inc. The case is styled as Donna Hedges, on behalf of herself and
all other persons similarly situated v. Reeves International, Inc.,
Case No. 1:22-cv-01111 (S.D.N.Y., Feb. 8, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Reeves International, Inc. -- https://www.breyerhorses.com/ --
distributes games and toys. The Company offers musical toys, arts
and crafts, reward charts, and infant products.[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
REXALL SUNDOWN: Summary Judgment in Seegert Suit Partly Affirmed
----------------------------------------------------------------
In the case, SANDRA SEEGERT, individually and on behalf of all
others similarly situated, Plaintiff-Appellant v. REXALL SUNDOWN,
INC., Defendant-Appellee, Case No. 20-55486 (9th Cir.), the U.S.
Court of Appeals for the Ninth Circuit affirms in part and reverses
in part the district court's order granting summary judgment for
Rexall, and remanded the case.
Ms. Seegert appeals the district court's order granting summary
judgment for Rexall. Seegert purchased Osteo Bi-Flex Triple
Strength, a dietary supplement manufactured by Rexall that contains
a glucosamine compound and a proprietary ingredient called Joint
Shield 5-LOXIN Advanced. Rexall claims on the product label that
Osteo Bi-Flex "Shows Improved Joint Comfort within 7 Days!" and
"supports joint comfort." Rexall also claims that Osteo Bi-Flex
"helps strengthen joints while helping maintain joint cartilage,"
and helps to strengthen joints, support flexibility, and support
mobility.
Ms. Seegert alleges, however, that Osteo Bi-Flex and its
ingredients do not provide any of these benefits. Thus, Seegert
filed the class action suit against Rexall, claiming violations of
California's Unfair Competition Law ("UCL") and Consumers Legal
Remedies Act ("CLRA"). See Cal. Bus. & Prof. Code Section 17200;
Cal. Civ. Code Section 1770(a).
Both parties submitted expert testimony. Seegert submitted the
declarations of Dr. Farshid Guilak and Dr. Timothy McAlindon. Dr.
Guilak conducted an in vitro study on pig cartilage and concluded
that Osteo Bi-Flex and 5-Loxin "have no effect on cartilage
function, in the presence or absence of inflammation." Dr.
McAlindon reviewed many studies and meta-analyses of the
ingredients in Osteo Bi-Flex and concluded that the product doesn't
"support mobility, support flexibility, strengthen joints, or
maintain joint cartilage for people with or without arthritis."
Both of Seegert's experts also critiqued the studies that Rexall
relied on to support its statements, as well as the testimony of
Rexall's expert witnesses. Both parties moved to exclude opposing
expert testimony.
The district court granted summary judgment for Rexall. The court
held that Rexall's statements on Osteo Bi-Flex used the correct
terms to constitute permissible structure/function claims under the
Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. Section 343. Thus,
the district court held that Seegert's state law claims were
preempted by the FDCA's express preemption provision. It also
rejected Seegert's argument that Rexall's statements, even though
they looked like acceptable structure/function claims, made
implicit disease claims and thus violated the FDCA. Instead, the
court found that "the representations do not suggest treatment or
prevention of a disease," and so "the representations are proper
structure/function claims according to the federal requirements."
The Ninth Circuit reviews the district court's grant of summary
judgment de novo. It must decide, viewing the evidence in the light
most favorable to the nonmoving party, whether there are any
genuine issues of material fact and whether the district court
correctly applied the law. It also reviews questions of preemption
and statutory interpretation de novo.
The Ninth Circuit begins with Seegert's argument that Rexall's
representations are implied disease claims and not
structure/function claims. "A statement claims to diagnose,
mitigate, treat, cure, or prevent disease if it claims, explicitly
or implicitly, that the product has an effect on the characteristic
signs or symptoms of a specific disease or class of diseases, using
scientific or lay terminology."
In Kroessler v. CVS Health Corp., 977 F.3d 803 (9th Cir. 2020), the
Ninth Circuit considered representations that a glucosamine-based
supplement "supports flexibility & range of motion" and "supports
cartilage health & joint comfort," and concluded that they were
structure/function claims, not implied disease claims. It sees no
material difference between the structure/function claims in
Kroessler and Rexall's representations.
Rexall does not represent that Osteo Bi-Flex "reduces joint pain"
or affects any other characteristic symptom of osteoarthritis. Nor
do any other representations on Osteo Bi-Flex's label suggest that
the product treats disease symptoms. And although it may consider
extra-label evidence in determining whether a representation is an
implied disease claim, the Ninth Circuit holds that the extrinsic
evidence Seegert submitted is not relevant to its inquiry. Thus, it
affirms the district court's finding that Rexall's representations
are structure/function claims, not implied disease claims. To the
extent that Seegert argues Rexall's representations are false or
misleading because they present implied disease claims, her state
law claims are preempted.
But the district court erred when it construed Section 343-1(a)(5)
as preempting the Plaintiff's state law claims whenever the
manufacturer's statement is a structure/function claim, the Ninth
Circuit holds. "The FDCA does not preempt California false
advertising causes of action simply because the challenged label
contains a proper structure/function claim; instead, preemption
applies only if the plaintiff's legal claims and factual
allegations would hold a defendant to a different 'substantiation'
standard than the FDCA." Thus, the district court must decide
whether there is a triable issue on substantiation, which requires
looking at Seegert's evidence. If a reasonable jury could conclude
that Rexall failed to substantiate its claims, then Seegert's state
law claims are not preempted.
On appeal, Rexall argues that the Ninth Circuit should still affirm
the district court's preemption decision because Seegert's evidence
is mismatched against the structure/function claims. It contends
that Seegert's evidence (1) concerns disease outcomes when Rexall's
structure/function claims do not purport to treat disease, and (2)
relies on studies involving different formulations of the
ingredients in Osteo Bi-Flex.
But "only admissible evidence may be considered in deciding a
motion for summary judgment," and the NInth Circuit does not yet
know whether Seegert's evidence is admissible because the district
court has not ruled on the parties' Daubert motions. Because
Daubert affords a measure of discretion to the district court, it
would be inappropriate for us to decide the admissibility of
Seegert's evidence in the first instance on appeal. Thus, the Ninth
Circuit reverses the district court's finding of preemption and
remand so that it can decide the admissibility of Seegert's
evidence and, if the evidence is admissible, determine whether
there is a triable issue on substantiation.
A full-text copy of the Court's Feb. 1, 2022 Memorandum is
available at https://tinyurl.com/5583esr9 from Leagle.com.
ROI SOLUTIONS: Court Resolves Class Notice Issues in Stenulson Suit
-------------------------------------------------------------------
In the case, VERONICA STENULSON and MERRILL LOWE, individually and
on behalf of all others similarly situated, Plaintiffs v. ROI
SOLUTIONS, LLC, Defendant, Case No. 2:20-cv-00614-DBB-JCB (D Utah),
Magistrate Judge Jared C. Bennett of the U.S. District Court for
the District of Utah issued Memorandum Decision and Order resolving
the parties' disputes concerning the content of the notice and
consent form, the notice plan and other issues.
I. Background
District Judge David Barlow referred the case to Magistrate Judge
Bennett under 28 U.S.C. Section 636(b)(1)(A). Before the Court are:
(1) Plaintiff Stenulson's proposed notice and consent form and
notice protocol, and (2) Defendant ROI's objections to Ms.
Stenulson's proposed notice and notice plan.
The operative complaint in the case asserts a putative collective
action claim under the Fair Labor Standards Act ("FLSA"), as well
class-action claims under state law. On Dec. 14, 2020, Ms.
Stenulson moved for conditional certification of and
court-supervised notice to the potential opt-in plaintiffs. Judge
Barlow held oral argument on several pending motions on Sept. 24,
2021, including Ms. Stenulson's motion. At the hearing, Judge
Barlow granted Ms. Stenulson's motion for conditional certification
and notice to the potential opt-in plaintiffs. The same day, Judge
Barlow issued an order memorializing his ruling. That order
required the parties to meet and confer concerning a stipulated
notice and submit that notice to the court within 30 days.
After the parties were unable to stipulate to a proposed notice,
consent form, and notice plan, Ms. Stenulson filed her proposed
notice and consent form and notice protocol. ROI filed their
objections to Ms. Stenulson's filing the same day. Although the
parties agree on most of Ms. Stenulson's proposed notice, consent
form, and notice plan, they have unresolved disputes about certain
issues.
II. Analysis
Judge Bennett addresses the parties' disputes concerning the
notice, consent form, and notice plan. He resolves those disputes,
which relate to (i) the content of the notice and consent form,
(ii) the notice plan, and (iii) other issues.
A. Content of the Notice and Consent Form
The parties dispute the following issues regarding the content of
the notice and consent form: (A) whether the notice should include
the case caption and where the statement about court neutrality
should be placed; (B) inclusion of a statement in the notice that
individuals who signed an arbitration agreement are ineligible to
opt in; (C) inclusion of a statement in the notice that putative
collective members should not contact ROI to discuss the action;
(D) inclusion of a statement in the consent form authorizing
continued use of the form.
Before beginning his analysis, Judge Bennett notes that "under the
FLSA, the Court has the power and duty to ensure that the notice is
fair and accurate, but it should not alter the Plaintiff's proposed
notice unless such alteration is necessary." Additionally, Judge
Bennett notes that neither party has cited to any binding authority
on any of the disputes addressed herein. Thus, he exercises
discretion to resolve the disputes based upon his interpretation of
the persuasive authority cited by the parties.
1. Case Caption and Statement About Court Neutrality
Ms. Stenulson's proposed notice contains the case caption for the
matter, along with a disclaimer in bold text at the end of the
notice indicating that although the Court has approved the notice,
it takes no position on the merits of the claims in the case. Ms.
Stenulson argues that inclusion of the case caption is "regularly
approved by district courts in the Tenth Circuit." With respect to
the placement of the disclaimer language, Ms. Stenulson contends
that "it is in the same location required by other courts."
ROI objects to the inclusion of the case caption. Alternatively, it
argues that, if the case caption is included, the caption should
include the name of the document, and the disclaimer language
should be placed directly under the case caption.
Having considered the authority cited by each party, Judge Bennett
is persuaded by the cases Ms. Stenulson cites from district courts
in the Tenth Circuit indicating that inclusion of the case caption
is appropriate. Therefore, Ms. Stenulson is permitted to retain the
case caption in the notice.
As for inclusion of the name of the document in the caption and
placement of the disclaimer language, ROI has failed to show that
alteration of Ms. Stenulson's form is "necessary." Indeed, ROI has
not cited to any authority indicating that the caption of a notice
must contain the name of the document or that disclaimer language
in a notice is required to be included below the case caption.
Therefore, Ms. Stenulson need not include the name of the document
in the case caption. Ms. Stenulson also need not alter the
placement of the disclaimer language.
2. Individuals Who Signed an Arbitration Agreement
ROI seeks to include in the notice a provision stating that the
potential opt-in plaintiffs are not eligible to join the action if
they signed a valid and enforceable arbitration agreement with ROI.
Ms. Stenulson objects to inclusion of such a provision because,
among other things: (1) there is no indication whether the
arbitration agreements that ROI entered into with its employees are
valid and enforceable; (2) each opt-in plaintiff should have the
opportunity in this court to raise any challenges he or she has to
an arbitration agreement; and (3) "the majority of district courts
to have addressed the issue have determined that the fact that some
employees have signed arbitration agreements does not preclude
conditional certification as to all employees."
For the following two reasons, Judge Bennett agrees with Ms.
Stenulson's arguments. First, ROI's arguments in support of
inclusion of the provision appear to be based upon its assumption
that the arbitration agreements at issue are indeed valid and
enforceable. However, until an opt-in plaintiff challenges the
validity and enforceability of such an arbitration agreement, that
issue is not ripe for consideration. Second, Judge Bennett agrees
with the approach taken by the majority of other district courts on
this issue. Accordingly, Ms. Stenulson need not include in the
notice ROI's proposed provision stating that the potential opt-in
plaintiffs are not eligible to join the action if they signed an
arbitration agreement with ROI.
3. Contact with ROI
Ms. Stenulson's proposed notice includes a provision stating that
recipients of the notice should not contact ROI to discuss the
case. She contends that the provision is appropriate to ensure that
ROI does "not cross any ethical barriers by communicating with" the
potential opt-in plaintiffs about the merits of the case and their
claims. ROI objects to inclusion of that provision.
Judge Bennett is not persuaded that the potential opt-in plaintiffs
should not be permitted to contact ROI. Importantly, the case Ms.
Stenulson cites to support her argument did not address whether the
potential opt-in plaintiffs should be advised to not contact the
defendant; instead, it addressed whether the Defendant's counsel's
contact information should be included in the notice. Furthermore,
Ms. Stenulson's arguments concerning the need to prevent ROI from
crossing any ethical barriers is speculative. For those reasons,
Ms. Stenulson may not retain the provision in the notice that
instructs recipients to refrain from contacting ROI.
4. Continued Use of Consent Form
Ms. Stenulson's proposed consent form contains a provision stating
that the opt-in plaintiff agrees that, if needed, he or she
authorizes Ms. Stenulson's counsel in the case to use the consent
form to refile his or her claim "in a separate lawsuit or
arbitration against ROI." She argues that the provision is a
"prophylactic measure" to ensure that the opt-in plaintiffs are not
prejudiced and that their claims are adequately protected.
ROI contends that the provision is inappropriate because it goes
beyond the case. In support of its argument, it relies upon
Calvillo v. Bull Rogers, Inc., in which a court in the District of
New Mexico struck language related to use of a consent form "in any
subsequent action" or "in any subsequent case as necessary." The
court concluded that such language was "unnecessary and may be
misleading to an individual whose intention is to opt-in to the
present litigation" and that the language had "no legal basis to
bind the individual." However, the court allowed the consent form
to retain language allowing the form to "be used in this case as
necessary."
Judge Bennett is not persuaded that Ms. Stenulson's inclusion of
this provision, as drafted, is appropriate. Like the court in
Calvillo, he will not permit inclusion of language that binds the
opt-in plaintiffs to use of their consent forms for separate,
future litigation or arbitration. Indeed, although individuals may
opt into the case, they may not wish to opt into a separate case in
the future, or they may wish to do so with different counsel.
However, Judge Bennett permits the consent form to include language
to allow Ms. Stenulson's counsel to use the consent forms as needed
in the case. Thus, Ms. Stenulson's proposed consent form will be
altered in accordance with that direction.
B. Notice Plan
The parties dispute the following issues for the notice plan: (i)
whether the notice should be sent to ROI employees who have signed
arbitration agreements with ROI; (ii) the inclusion of a link to
the notice and consent form with the ability to execute
electronically; and (iii) whether a reminder notice should be
sent.
1. Individuals Who Signed an Arbitration Agreement
ROI contends that the notice should be sent only to employees who
have not signed a valid and enforceable arbitration agreement with
ROI. Judge Bennett rejects ROI's argument. Again, "the majority of
district courts to have addressed the issue have determined that
the fact that some employees have signed arbitration agreements
does not preclude conditional certification as to all employees."
Therefore, Judge Bennett concludes that the notice should be sent
to all potential opt-in plaintiffs, not just those who have not
signed an arbitration agreement with ROI.
2. Link and Electronic Execution
The parties have agreed to distribute the notice and consent form
via first class mail and text message; however, the content of the
text message is disputed. On the one hand, Ms. Stenulson proposes
sending a text message to the potential opt-in plaintiffs with a
link to a secure website where they can view the court-approved
notice and electronically execute their consent forms. ROI, on the
other hand, proposes sending a text message with an attached file
or image of the notice and consent form. The parties dispute the
relative costs, reliability, and accuracy of their respective
proposed methods.
ROI's arguments are untenable, Judge Bennett finds. First, ROI has
provided only speculative arguments that the notice or consent form
might be altered. Second, there are equally challenging technical
issues involved with employing ROI's proposed method. Third, ROI's
argument about increased and unnecessary costs is not a relevant
consideration given that Ms. Stenulson will bear those burdens.
Finally, Judge Bennett t is unpersuaded that receiving a file or
image of the notice and consent form will somehow ensure that
recipients read and understand the documents. For those reasons, he
concludes that the text message distribution of the notice and
consent form will proceed in accordance with Ms. Stenulson's
proposal.
3. Reminder Notice
Ms. Stenulson proposes that a reminder notice be sent via text
message to all the potential opt-in plaintiffs halfway through the
notice period. She contends that this will "ensure" the potential
opt-in plaintiffs "are informed of their rights." ROI opposes the
sending of a reminder notice as unnecessary and inappropriate
because it could be interpreted as court endorsement of joining the
action. It further argues that sending the notice by two means
(first class mail and text message) will provide sufficient
notice.
The parties have cited persuasive authority in support of their
respective positions, Judge Bennett finds. Having considered that
authority, he is persuaded by the authority ROI cites and concludes
that a reminder notice is neither necessary nor appropriate.
Therefore, Ms. Stenulson will not be permitted to send a reminder
notice.
C. Other Issues
In addition to the foregoing issues, Judge Bennett addresses the
following two additional issues: (A) whether ROI should be required
to disclose certain Social Security numbers, and (B) whether
non-postmarked consent forms must be date stamped.
1. Social Security Numbers
In a footnote in her briefing on her proposed notice, Ms. Stenulson
contends that if mailed notices are returned as undeliverable, ROI
should be required to provide Social Security numbers for those
opt-in plaintiffs within three business days of her request so that
current addresses can be found for the returned notices. ROI
objects to that process based on privacy concerns associated with
disclosing Social Security numbers. ROI also asserts that Ms.
Stenulson should raise the issue with the Court later if it becomes
ripe.
Judge Bennett agrees with ROI's arguments. First, there are
legitimate privacy concerns implicated by disclosing Social
Security numbers.36 Second, because the notice is being sent by
text message, in addition to being sent by first class mail, it
increases the likelihood that the potential opt-in plaintiffs will
receive the notice even if their mailed notice is returned as
undeliverable. Third, at this point, Ms. Stenulson has not shown a
need for the disclosure Social Security numbers. Finally, Ms.
Stenulson can raise the issue with the Court at a later date if it
becomes necessary. For those reasons, at this point, Judge Bennett
will not require ROI to produce Social Security numbers for any
undelivered notices.s
2. Date Stamping
ROI requests that any non-postmarked consent forms be date stamped
upon receipt together with of the name of the person who received
it to create a record of receipt. Judge Bennett concludes that this
is a reasonable request to ensure an accurate record of receipt of
consent forms. Therefore, Ms. Stenulson will be required to date
stamp any non-postmarked consent forms along with the name of the
person who received it.
III. Order
Judge Bennett ordered that the content of the notice and the
consent form and the notice plan will comply with the requirements
he outlined.
A full-text copy of the Court's Feb. 1, 2022 Memorandum Decision &
Order is available at https://tinyurl.com/2cpsd7up from
Leagle.com.
RUST-OLEUM CORP: Third Amended Case Mng't Sched Order Entered
-------------------------------------------------------------
In the class action lawsuit captioned as ANTHONY BUSH, individually
and on behalf of all others similarly situated v. RUST-OLEUM
CORPORATION, an Illinois corporation, Case No. 3:20-cv-03268-LB
(N.D. Cal.), the Hon. Judge Laurel beeler entered a third amended
case management scheduling order as follows:
Date Continued
Date
-- Deadline for Plaintiffs March 18, 2022 July 19, 2022
to File Motion for Class
Certification:
-- Deadline to Complete May 2, 2022 Sept. 2, 2022
Expert Discovery
regarding Plaintiff's
Experts:
-- Deadline for Defendant June 14, 2022, Oct. 17, 2022
to File Opposition to
Class Certification
Motion:
-- Deadline to Complete Aug. 1, 2022 Dec. 1, 2022
Expert Discovery
regarding Defendant's
Experts:
-- Deadline for Plaintiffs Sept. 15, 2022 Jan. 18, 2023
to File any Reply in
Support of Their Motion
for Class Certification:
Rust-Oleum is a manufacturer of protective paints and coatings for
home and industrial use.
A copy of the Court's order dated Feb. 4, 2021 is available from
PacerMonitor.com at https://bit.ly/3HN9ng0 at no extra charge.[CC]
The Plaintiff is represented by:
Ryan J. Clarkson, Esq.
Katherine A. Bruce, Esq.
Kelsey J. Elling, Esq.
CLARKSON LAW FIRM, P.C.
22525 Pacific Coast Highway
Malibu, CA 90265
Telephone: (213) 788-4050
Facsimile: (213) 788-4070
E-mail: rclarkson@clarksonlawfirm.com
kbruce@clarksonlawfirm.com
kelling@clarksonlawfirm.com
- and -
Christopher D. Moon, Esq.
Kevin O. Moon, Esq.
MOON LAW APC
chris@moonlawapc.com
kevin@moonlawapc.com
228 Hamilton Ave., 3 rd Fl
Palo Alto, CA 94301
Telephone: (619) 915-9432
Facsimile: (650) 618-0478
The Defendant is represented by:
Karen M. Sullivan, Esq.
MANNING GROSS +
MASSENBUEG LLP
400 Spectrum Center Drive, Suite 1450
Irvine, CA 92618
Telephone: (949) 892-4700
Facsimile: (949) 892-4701
E-mail: ksullivan@mgmlaw.com
- and -
Anthony j. Monaco, Esq.
P. Stephen Fardy, Esq.
SWANSON, MARTIN & BELL, LLP
330 N. Wabash, Suite 3300
Chicago, IL 60611
Telephone: (312) 321-9100
Facsimile: (312) 321-0990
E-mail: amonaco@smbtrials.com
sfardy@smbtrials.com
SOCLEAN INC: Brooks Suit Transferred to W.D. Pennsylvania
---------------------------------------------------------
The case styled as Jessie Judson Brooks, Sr., individually and on
behalf of all others similarly situated v. SoClean, Inc., Case No.
5:21-cv-00357 was transferred from the U.S. District Court for the
Middle District of Georgia, to the U.S. District Court for the
Western District of Pennsylvania on Feb. 7, 2022.
The District Court Clerk assigned Case No. 2:22-cv-00228-JFC to the
proceeding.
The nature of suit is stated as Contract Product Liability.
SoClean, Inc. -- https://www.soclean.com/ -- manufactures cleaning
devices. The Company produces automated continuous positive airway
pressure (CPAP) cleaners and sanitizers which improves health
outcomes and quality of life for those suffering from obstructive
sleep apnea and other sleeping disorders.[BN]
The Plaintiff is represented by:
Derek Chad Nuce, Esq.
PASLEY, NUCE, MALLORY & DAVIS, LLC
300 West Gordon Street
P.O. Box 1168
Thomaston, GA 30286
Phone: (706) 646-3200
Fax: (706) 646-2147
Email: cnuce@pnlawgroup.com
- and -
John M. Deakle, Esq.
PO Box 2072
Hattiesburg, MS 39403
Phone: (601) 544-0631
Fax: (601) 544-0666
Email: jmd@deaklelawfirm.com
- and -
Richard H. Bishoff, Esq.
1269 Woodland Rd
PO Box 1269
Thomaston, GA 30286
Phone: (404) 272-1901
Fax: (706) 646-2147
Email: rbishoff@bishofflaw.com
- and -
Ronald Johnson, IV, Esq.
PO Box 2072
Hattiesburg, MS 39403
Phone: (601) 325-8992
Email: rvjohnson@djlawms.com
The Defendant is represented by:
Aiten Musaeva Mcpherson, Esq.
1201 W Peachtree St. NE Ste. 1400
Atlanta, GA 30309
Phone: (404) 572-6716
Email: aiten.mcpherson@bclplaw.com
SPORTS UNLIMITED: Paguada Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Sports Unlimited,
Inc. The case is styled as Josue Paguada, on behalf of himself and
all others similarly situated v. Sports Unlimited, Inc., Case No.
1:22-cv-01086 (S.D.N.Y., Feb. 8, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Sports Unlimited Inc. -- https://www.sportsunlimitedinc.com/ -- is
a family owned sporting goods retailer that is committed to
delivering quality products and outstanding service.[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
STATE FARM: March 16 Extension to File Response Sought in Martino
-----------------------------------------------------------------
In the class action lawsuit captioned as LISA M. MARTINO, on behalf
of herself and on behalf of all others similarly situated, v. STATE
FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Case No. 4:20-cv-00910
(W.D. Mo.), the Parties ask the Court to enter an order granting a
thirty-day extension of time for State Farm to respond to
Plaintiffs' Motion to Certify Class in order to facilitate ongoing
settlement discussions.
The Plaintiff filed her Motion to Certify Class on January 14,
2022. State Farm's response is due on February 14, 2022.
The Parties are currently engaged in settlement negotiations and
believe that such discussions are more likely to be productive if
the filing of additional briefing by both parties (i.e., an
Opposition and Reply) is briefly delayed.
The Parties therefore jointly request an additional 30 days, up to
and including March 16, 2022, for State Farm to file its response
to Plaintiffs' Motion to Certify Class.
State Farm operates as an insurance company.
A copy of the Parties' motion dated Feb. 4, 2021 is available from
PacerMonitor.com at https://bit.ly/3B3NkPU at no extra charge.[CC]
The Plaintiff is represented by:
Joseph A. Kronawitter, Esq.
J. Brett Milbourn, Esq.
Taylor P. Foye, Esq.
HORN AYLWARD & BANDY, LLC
2600 Grand, Ste. 1100
Kansas City, MO 64108
Telephone: (816) 421-0700
Facsimile: (816) 421-0899
E-mail: bmilbourn@hab-law.com
jkronawitter@hab-law.com
tfoye@hab-law.com
The Defendant is represented by:
James F. Bennett
Robert F. Epperson, Jr.
DOWD BENNETT LLP
7733 Forsyth Blvd., Suite 1900
St. Louis, MO 63105
Telephone: (314) 889-7300
Facsimile: (314) 863-2111
E-mail: jbennett@dowdbennett.com
repperson@dowdbennett.com
STEP2 COMPANY: Paguada Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against The Step2 Company,
LLC. The case is styled as Josue Paguada, on behalf of himself and
all others similarly situated v. The Step2 Company, LLC, Case No.
1:22-cv-01092 (S.D.N.Y., Feb. 8, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Step2 -- https://www.step2.com/ -- manufactures & sells indoor and
outdoor kid's toys, play kitchens, playhouses, wagons, swing sets,
home & garden products, & more.[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
TAL EDUCATION: Faces Sun Suit Over Misleading Reports
-----------------------------------------------------
RUOSHUI SUN, Individually and on Behalf of All Others Similarly
Situated, Plaintiff v. TAL EDUCATION GROUP, BANGXIN ZHANG, RONG LUO
and LINDA HE, Defendants, Case No. 1:22-cv-01015 (S.D.N.Y., Feb. 4,
2022) is a securities class action on behalf of the Plaintiff and
all persons who purchased TAL American Depository Shares between
April 26, 2018 and July 22, 2021, both dates inclusive, seeking to
pursue remedies under the Securities Act of 1934 against TAL and
certain of the Company's senior officers and directors.
TAL provides K-12 after-school tutoring services in China, mainly
covering core academic subjects, including mathematics, physics,
chemistry, biology, history, geography, political science, English
and Chinese.
According to the complaint, in February 2018, the Chinese
government released a set of regulations aimed at reining in
excessive tutoring fees and limiting the perceived societal harm
resulting from the ubiquity of for-profit tutoring programs in
China such as those offered by TAL. Despite Defendants'
acknowledgment that it was of material importance to investors that
TAL comply with the rules, regulations and proscriptions of the
Chinese government, during the Class Period, the Company routinely
engaged in illicit business practices designed to artificially
inflate the Company's financial results.
As a result of its wide-ranging misconduct, TAL was exposed to an
extreme undisclosed risk of adverse governmental action, as well as
immense legal, regulatory and reputational fallout if TAL's illicit
business practices were ever publicly revealed. Additionally, says
the complaint, the price of TAL ADSs traded at artificially
inflated price as a result of the Defendants' alleged scheme to
defraud investors and issue materially false and misleading
statements during the Class Period.[BN]
The Plaintiff is represented by:
Samuel H. Rudman, Esq.
Vicki Multer Diamond, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
58 South Service Road, Suite 200
Melville, NY 11747
Telephone: (631) 367-7100
Facsimile: (631) 367-1173
E-mail: srudman@rgrdlaw.com
vdiamond@rgrdlaw.com
- and -
Brian E. Cochran, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
200 South Wacker Drive, 31st Floor
Chicago, IL 60606
Telephone: (312) 674-4674
Facsimile: (312) 674-4676
E-mail: bcochran@rgrdlaw.com
- and -
Guri Ademi, Esq.
ADEMI LLP
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
E-mail: gademi@ademilaw.com
TAMKO BUILDING: Compelled to Give Responsive Docs in Melnick Suit
-----------------------------------------------------------------
In the case, MARTIN and BETH MELNICK, et al., Plaintiffs v. TAMKO
BUILDING PRODUCTS, INC., Defendants, Case No. 19-2630-JWL-KGG (D.
Kan.), Magistrate Judge Kenneth G. Gale of the U.S. District Court
for the District of Kansas granted in part and denied in part the
Plaintiffs' motion to compel the Defendant to produce certain
responsive documents.
I. Background
In the putative class action, three sets of Plaintiffs have brought
the present lawsuit against the Defendant alleging that roofing
shingles designed, manufactured, and sold nationwide by the
Defendant were defective. The Defendant's motion to strike the
Plaintiffs' nationwide class allegations was rejected by Judge
Nunley in the Eastern District of California before the case was
transferred to the District of Kansas. The Court notes, however,
that Judge Nunley stated that "the parties stated the Defendant's
sales occurred 'throughout' the country, but have not determined
how many states are implicated in the nationwide class, or which
states beyond the four Plaintiffs' home states." The deadline for
the Plaintiffs to file a motion to certify the class is currently
set for Sept. 30, 2022.
With the present motion, the Plaintiffs move for an Order
compelling the Defendant to produce all documents responsive to
their Second Requests for Production of Documents Nos. 8, 38-43, 45
and 46, and provide supplemental responses to their First
Interrogatories to Defendant Nos. 3, 12, 13, 14, and 15.
Request No. 8 seeks documents "sufficient to show which TAMKO's
plants and lines produced Heritage Shingles for what geographic
areas of the United States at all times during the Relevant Time
Period." Requests Nos. 38-43 relate to warranty claims and
complaints on the Heritage Shingles. Request No. 45 asks for
documents "sufficient to show TAMKO's gross revenue and net profits
from sales of each Heritage Shingles product during the Relevant
Time Period." Request No. 46 asks for documents "sufficient to show
the quantity of each Heritage Shingles product sold by year,
including a breakdown of such sales by state and by consumer."
Interrogatory No. 3 asks the Defendant to "identify each and every
test that TAMKO used or uses to evaluate its Heritage Shingles
pursuant to ASTM D3462, including for tear strength, and TAMKO's
current or former officers, directors and employees who were or are
responsible for such testing, and the dates of such
responsibility." Interrogatory No. 12 seeks the identity of "all
distributors, wholesalers, retailers and installers" who contacted
the Defendant regarding the quality of the shingles, including the
dates of such communications. Interrogatory No. 13 asks for the
identities of the individuals responsible for handling "warranty
claims and other complaints" on the shingles on behalf of the
Defendant. Interrogatory No. 14 instructs the Defendant to state
its "revenue per year during the Relevant Time Period from the sale
of Heritage Shingles, broken down by specific Shingle product."
Interrogatory No. 15 asks "the volume of each Heritage Shingle
product sold by the Defendant per year during the Relevant Time
Period, including a breakdown of such sales by state."
II. Analysis
A. Arbitration Clause
As an initial matter, the Defendant argues that "any post-2015
nationwide discovery would be doubly irrelevant in light of the
post-2004 Heritage shingles arbitration clause." What it refers to
as the "mandatory arbitration clause" was included on the wrapper
of every package of Heritage shingles sold since late 2004. The
Plaintiffs do not deny the existence of the clause on the wrapper,
but point out state courts -- including those in Oklahoma and
Missouri -- that have found the arbitration clause at issue to be
unenforceable.
As a threshold issue, Judge Gale holds that the Defendant has not
established that the homeowners at issue had actual knowledge of
the arbitration clause necessary to establish consent to be bound
by it. Pursuant to Kansas law, the "a binding contract requires a
'meeting of the minds on all essential elements.'" The Defendant
has failed to establish this. As such, further analysis of this
issue is in this ruling is unwarranted. The Defendant may raise
this substantive issue by appropriate motion to the Court. The
Defendant's objection is overruled.
B. Nationwide Discovery
The Plaintiffs first argue that the Defendant "has refused to
produce nationwide (i.) warranty claim and product complaint
information, and (ii.) sales and distribution information." They
argue that this information is relevant to the Plaintiffs' claims
in the nationwide class action. The Defendant responds that
nationwide warranty claim files or sales data after 2015 because
"there is virtually no chance a nationwide class would be certified
in the case" and "any putative class members who purchased their
shingles after 2004 would be excluded from the class pursuant to a
binding arbitration clause that has been upheld by multiple
courts."
Judge Gale holds that the Defendant's argument that nationwide
discovery should be denied because the Plaintiffs' class will
likely fail to be certified is both circular and illogical. The
discovery is needed to determine the existence of evidence to
support the nationwide class claim. Further, the operative
Scheduling Order in the case specifically provides for an "initial
period of discovery which will include all discovery necessary to
resolve the motion to certify the class and all discovery relevant
to the claims of the named plaintiffs." This discovery period
continues through Aug. 31, 2022.
To honor the principles of Fed.R.Civ.P. 1, discovery at this stage
should prioritize evidence needed for the Plaintiffs' motion to
certify the class. Discovery relating to damages and other evidence
relevant to the merits stage of the case may be deferred to
minimize potentially unnecessary expense and burden. Judge Gale,
thus, generally overrules the Defendant's objection(s) to
nationwide discovery that relates directly to class certification.
He, however, sustains the Defendant's objection(s) to nationwide
discovery relating to damages and other issues relevant to the
merits stage of these proceedings. Within this context, Judge Gale
will address the specific discovery requests at issue.
C. Requests for Production at Issue
1. Request No. 8.
The Defendant objected that the request was overly broad unduly
burdensome, and sought irrelevant information by seeking documents
"relating to geographic areas of the United States beyond those
relevant to the Plaintiffs' claims." It agreed to provide documents
reflecting relevant information for shingles shipped to
Connecticut, Illinois, and Ohio. Such shingles were shipped from
plants in Joplin, MO, Frederick, MD, Dallas, TX, Phillipsburg, KS,
and Tuscaloosa, AL "during at least portions of the alleged class
period."
This nation-wide information would arguably provide evidence
relevant to the Plaintiffs' attempt to certify the class. The
information provided by the Defendant is insufficient and
Defendant's objections are overruled. The Plaintiff's motion is,
thus, granted as to Request No. 8.
2. Requests Nos. 38-43
RFP No. 38 asks for all documents relating to written and oral
complaints the Defendant received regarding the shingles. Request
No. 39 seeks "all warranty claims the Defendant has received
concerning Heritage Shingles, and all documents and communications
related to such warranty claims." Request No. 40 asks for
communications regarding complaints or warranty claims concerning
the shingles and the Defendant's "notes or logs of such
communications." Request No. 41 asks for documents and
communications "concerning damage to homes and structures on which
Heritage Shingles are or were installed." Request No. 42 seeks
production of the Defendant's "warranty claim and complaint
database(s) for Heritage Shingles." Request No. 43 asks for
documentation regarding "any and all tests, studies, analyses,
inspections or investigations that the Defendant or anyone on its
behalf performed on Heritage Shingles or properties that were the
subject of warranty claims or other complaints."
Judge Gale holds that this nation-wide information would arguably
provide evidence relevant to the Plaintiffs' attempt to certify the
class. The Defendant's objections are overruled. The Plaintiff's
motion is, thus, granted as to Requests Nos. 38-43.
3. Request No. 45
The Defendant raised similar objections as to Request No. 8, and
again refused to provide nationwide information, instead limiting
its response to Connecticut, Illinois, and Ohio.
As Judge Gale discussed, discovery at this stage should prioritize
evidence needed for the Plaintiffs' motion to certify the class.
He, thus, denies without prejudice the Plaintiffs' motion regarding
Request No. 45 and the attempt to discover nation-wide evidence on
the Defendant's gross revenue and net profits from sales of the
shingles at issue. The Plaintiff may renew discovery on this
subject after the District Court's ruling on the class
certification motion.
4. Request No. 46
The Defendant raised similar objections as to Request No. 8, and
again refused to provide nationwide information, instead limiting
its response to Connecticut, Illinois, and Ohio.
Judge Gale finds that this nation-wide information would arguably
provide evidence relevant to the Plaintiffs' attempt to certify the
class. The information provided by the Defendant is insufficient
and Defendant's objections are overruled. The Plaintiff's motion
is, thus, granted as to Request No. 46.
D. Sufficiency of Responses to Interrogatories 3, 12-15
1. Interrogatory No. 3
The Defendant objects that the Interrogatory is overly broad,
unduly burdensome, and seeks irrelevant information as it asks for
the identification of "each and every test" the Defendant used to
evaluate the shingles and "all individuals who have had some
responsibility for such testing over an approximately 20-year
period." The Defendant did, however, provide an extensive,
narrative response to the Interrogatory.
The Plaintiffs argue that while Defendant's Second Amended Response
to Interrogatory No. 3 provides certain testing information, "it
still does not list who is and was responsible for the testing and
when." According to them, the Defendants response "only references
two unhelpful organizational charts and identifies one 'individual
with knowledge regarding the subject matter of this
interrogatory.'" They contend this identifying information is
necessary in or der to determine who to depose regarding
Defendant's testing of its Heritage Shingles.
Judge Gale rules that the information sought is facially relevant
and the Defendant has not established its irrelevance. While it may
be burdensome for the Defendant to compile a list of such
individuals over a 20 year period, it has also failed to establish
that the burden would be undue or disproportionate to the needs of
the case. The Defendant's objections are overruled and the
Plaintiff's motion is granted as to Interrogatory No. 3.
2. Interrogatory No. 12
The Plaintiffs argue that the information is relevant to their
claims "concerning the breadth of the problems with Heritage
Shingles." According to them, this discovery would allow them to
investigate relevant third party information regarding defects in
Heritage Shingles. The Defendant objects that Interrogatory No. 12
is overly broad, unduly burdensome, and seeks irrelevant
information as it asks for identification of "all distributors,
wholesalers, retailers and installers" who have contacted the
Defendant regarding the quality of the over a 30-year period. It
then identified various responsive documentation produced.
Judge Gale states that this interrogatory is both vague and overly
broad as it seeks information "regarding the quality of" the
shingles at issue. The Defendant's objections are sustained and
Judge Gale denies the Plaintiff's motion as to Interrogatory No.
12.
3. Interrogatory No. 13
The Plaintiffs contend that they need this information "so that
they can determine which individuals to depose concerning the
Defendant's handling of warranty claims and other customer
complaints." The Defendant objects that the Interrogatory is overly
broad, unduly burdensome, and seeks irrelevant information as it
asks for the identification of such individuals over a 20-year
period. It then identified various responsive documentation
produced and identified David Richins as "an individual with
knowledge regarding the subject matter of this Interrogatory."
Judge Gale finds that the Defendant's position is not within the
spirit of Fed.R.Civ.P. 33. Even assuming the Plaintiffs are equally
able to search and sort the information provided, he says, the
Defendant would have innate knowledge of the information and
individuals identified therein that the Plaintiff does not possess.
Given the breadth of the documents involved, the Defendant is in a
better position to parse what is and is not truly responsive. The
Defendant's objections are overruled and the Plaintiff's motion is
granted as to Interrogatory No. 13.
4. Interrogatories Nos. 14 and 15
The Plaintiff argues that the Defendant's responses to these
Interrogatories "are inadequate because of its refusal to provide
certain nationwide discovery." According to the Plaintiff,
remaining missing from the Defendant's Second Amended Response to
Interrogatory No. 14 is nationwide Heritage Shingles sales revenue
per year from 2015 to the present. In response to Interrogatory No.
15, the Defendant has only provided sales volumes for Connecticut,
Illinois and Ohio -- not any other state in the country.
As he discussed, Judge Gale holds that the discovery at this stage
should prioritize evidence needed for the Plaintiffs' motion to
certify the class. He thus denies without prejudice the Plaintiffs'
motion regarding Interrogatory No. 14 and the attempt to discover
nation-wide evidence on "revenue per year during the Relevant Time
Period from the sale of Heritage Shingles, broken down by specific
Shingle product." The Plaintiff may renew discovery on this subject
after the District Court's ruling on the class certification
motion.
Interrogatory No. 15, on the other hand, seeks "the volume of each
Heritage Shingle product sold by the Defendant per year during the
Relevant Time Period, including a breakdown of such sales by
state." This nationwide information would arguably provide
evidence relevant to Plaintiffs' attempt to certify the class. The
Plaintiff's motion is, thus, granted as to Interrogatory No. 15.
III. Conclusion
Judge Gale granted in part and denied in part the Plaintiffs'
Motion to Compel as set forth. Supplemental responses are due
within 30 days of the date of the Order.
A full-text copy of the Court's Feb. 1, 2022 Memorandum & Order is
available at https://tinyurl.com/3cuz7svu from Leagle.com.
TERRI BIAS: Deadline to File Class Cert. Bid Suspended in Berry
---------------------------------------------------------------
In the class action lawsuit captioned as BERRY v. TERRI BIAS &
ASSOCIATES, INC., Case No. 1:21-cv-00854 (M.D.N.C.), the Hon. Judge
L. Patrick Auld entered an order on motion for extension of time To
dile motion.
-- The deadline for Plaintiff to file his motion for class
certification is suspended and shall be re-set in
conjunction with the scheduling order.
-- The parties should propose a new class certification
deadline in their joint or individual reports pursuant to
Federal Rule of Civil Procedure 26(f).
The nature of suit states restrictions of use of telephone
equipment.
Terri Bias is a real estate company.[CC]
TIPSY JOE: Windheim Sues Over Restaurant Servers' Unpaid Wages
--------------------------------------------------------------
JOSHUA WINDHEIM, individually, and on behalf of all others
similarly situated, Plaintiffs v. TIPSY JOE CORP. d/b/a THE TIPSY
BOAR GASTROPUB, LUISA F. CASTELLANOS, individually, and JOSE
CASTELLANOS, individually, Defendants, Case No. 0:22-cv-60278 (S.D.
Fla., Feb. 5, 2022) arises from the Defendants' failure to pay
federal minimum and overtime wages and Florida minimum wages for
certain hours worked by Plaintiff and the Class members in
violation of the Fair Labor Standards Act and the Florida Minimum
Wage Act.
The Plaintiff worked for the Defendants as a server from July 19,
2021, until October 10, 2021, at Tipsy Boar Gastropub in Hollywood,
Florida.
Tipsy Joe Corp., d/b/a The Tipsy Boar Gastropub, is a restaurant in
Florida.[BN]
The Plaintiff is represented by:
Jordan Richards, Esq.
USA EMPLOYMENT LAWYERS-JORDAN RICHARDS, PLLC
1800 SE 10th Ave. Suite 205
Fort Lauderdale, FL 33301
Telephone: (954) 266-0908
E-mail: Jordan@jordanrichardspllc.com
TOKIDOKI LLC: Paguada Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Tokidoki LLC. The
case is styled as Josue Paguada, on behalf of himself and all
others similarly situated v. Tokidoki LLC, Case No. 1:22-cv-01090
(S.D.N.Y., Feb. 8, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
tokidoki ("sometimes" in Japanese) -- https://www.tokidoki.it/ --
is the Japanese-inspired lifestyle brand created in 2006.[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
TOROSIAN TECH: Fails to Properly Pay Electricians, Johnson Claims
-----------------------------------------------------------------
TIMOTHY JOHNSON, individually and on behalf of all others similarly
situated, Plaintiff v. TOROSIAN TECH SERVICES, INC. and THOMAS
TOROSIAN, Defendants, Case No. 2:22-cv-00154-PP (E.D. Wis.,
February 8, 2022) is a class action against the Defendants for
unpaid regular wages and overtime compensation in violation of the
Fair Labor Standards Act of 1938 and Wisconsin's Wage Payment and
Collection Laws.
Mr. Johnson worked for the Defendants as an electrician in Racine,
Wisconsin from March 2018.
Torosian Tech Services, Inc. is a repair services company, with a
principal place of business at 23 Marilyns Way, Eliot, New
Hampshire. [BN]
The Plaintiff is represented by:
James A. Walcheske, Esq.
Scott S. Luzi, Esq.
David M. Potteiger, Esq.
WALCHESKE & LUZI, LLC
235 N. Executive Drive, Suite 240
Brookfield, WI 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
E-mail: jwalcheske@walcheskeluzi.com
sluzi@walcheskeluzi.com
dpotteiger@walcheskeluzi.com
TTEC SERVICES: Anderson Files Suit in D. Colorado
-------------------------------------------------
A class action lawsuit has been filed against TTEC Services
Corporation. The case is styled as David Anderson, individually and
on behalf of all others similarly situated v. TTEC Services
Corporation, Case No. 2:22-cv-00547-KAM-AYS (D. Colo., Feb. 8,
2022).
The nature of suit is stated as Fraud or Truth-In-Lending.
La Flor Products Company, Inc. -- https://www.laflorspices.com/ --
manufactures food products.[BN]
The Plaintiff is represented by:
Gary E. Mason, Esq.
MASON LIETZ & KLINGER LLP
5101 Wisconsin Avenue NW, Suite 305
Washington, DC 20016
Phone: (202) 429-2290
Fax: (202) 429-2294
Email: gmason@masonllp.com
TTEC SERVICES: Barocas Files Suit in D. Arizona
-----------------------------------------------
A class action lawsuit has been filed against TTEC Services
Corporation. The case is styled as David Barocas, individually and
on behalf of all others similarly situated v. TTEC Services
Corporation, Case No. 2:22-cv-00217-JFM (D. Ariz., Feb. 9, 2022).
The nature of suit is stated as Other Personal Injury.
TTEC -- https://www.ttec.com/ -- is a global customer experience
(CX) technology and services company focused on the design,
implementation, and delivery of exceptional CX.[BN]
The Plaintiff is represented by:
Betsy C Manifold, Esq.
Oana Constantin, Esq.
Rachele R Byrd, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP
750 B St., Ste. 2770
San Diego, CA 92101
Phone: (619) 239-4599
Fax: (619) 234-4599
Email: manifold@whafh.com
VALVE CORP: Galway Appeals Lootbox Gambling Case Dismissal
-----------------------------------------------------------
Plaintiffs Grace Galway, et al., filed an appeal from a court
ruling entered in the lawsuit entitled Grace Galway and Brenda
Shoss, individually and on behalf of all others similarly situated,
Plaintiffs v. VALVE CORPORATION, a Washington corporation,
Defendant, Case No. 2:16-cv-01941-JLR, in the U.S. District Court
for the Western District of Washington, Seattle.
The court discussed the factual and procedural background of this
proposed class action in detail in its order granting in part
Valve's motion to dismiss Plaintiffs' amended complaint.
In 2017, the Court granted Valve's motion to compel arbitration of
the claims asserted by the Plaintiffs on behalf of themselves and
their minor children based on the children's agreement to an
arbitration clause in Valve's Steam Subscriber Agreement. The
arbitrators found in Valve's favor on all claims. Subsequently, the
Court denied the Plaintiffs' request to set aside the arbitrators'
awards and dismissed the case.
The Plaintiffs appealed. The Ninth Circuit Court of Appeals
affirmed the Court's dismissal of the claims that the Plaintiffs
brought on behalf of their children but reversed the dismissal of
the Plaintiffs' individual claims. The Ninth Circuit held that the
Court had erred in compelling the Plaintiffs to arbitrate their
individual claims because they were not users of Valve's Steam
gaming platform and thus had not agreed to the arbitration clause
in the Steam Subscriber Agreement.
After the case was remanded, the Plaintiffs filed an amended
complaint. In relevant part, they alleged that Valve's "Lootbox"
feature, which allows players of Valve's games to buy a "key" to a
virtual "weapons case" or "crate" that contains "Skins" (virtual
guns and knives with a variety of different looks and textures),
constitutes a form of gambling ("Lootbox gambling") that is
indistinguishable from playing a slot machine.
The Plaintiffs alleged that Valve's acts were deceptive within the
meaning of the Washington Consumer Protection Act, ch. 19.86 RCW
("CPA"), because they "created a false impression of fair play,
legality, and safety" which induced Plaintiffs to unwittingly
provide money to their minor children to purchase Skins and Lootbox
keys.
The Plaintiffs alleged these claims on behalf of the following
proposed class: All persons in the United States who are
parents/guardians of a minor child who provided funds to their
minor child(ren) for the purchase of Skins and/or> Keys for the
games CounterStrike:Global Offensive, Dota2 and Team Fortress 2.
On January 7, 2022, the Court entered an order granting Defendant's
Motion for Summary Judgment. The Court dismissed Plaintiffs'
remaining claims with prejudice and denied as moot Plaintiffs'
motion for class certification.
The Plaintiffs seek a review of this order.
The appellate case is captioned as Grace Galway, et al. v. Valve
Corporation, Case No. 22-35105, in the United States Court of
Appeals for the Ninth Circuit, filed on Feb. 4, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellants Grace Galway and Brenda Shoss Mediation
Questionnaire was due Feb. 11, 2022;
-- Appellants Grace Galway and Brenda Shoss opening brief is due
on April 6, 2022;
-- Appellee Valve Corporation answering brief is due on May 6,
2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiffs-Appellants GRACE GALWAY and BRENDA SHOSS, individually
and on behalf of all others similarly situated, are represented
by:
Michael J. Flannery, Esq.
CUNEO GILBERT & LADUCA LLP
7733 Forsyth Boulevard, Suite 1675
Saint Louis, MO 63105
Telephone: (314) 226-1015
- and -
Ray W. Kahler, Esq.
Paul L. Stritmatter, Esq.
STRITMATTER KESSLER WHELAN
413 8th Street
Hoquiam, WA 98550
Telephone: (360) 533-2710
- and -
Charles LaDuca, Esq.
CUNEO GILBERT & LADUCA, LLP
4725 Wisconsin Avenue NW, Suite 200
Washington, DC 20016
Telephone: (202) 789-3960
- and -
Robert K. Shelquist, Esq.
LOCKRIDGE GRINDAL NAUEN, PLLP
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401
Telephone: (612) 339-6900
- and -
Jasper D. Ward, IV, Esq.
JONES WARD PLC
1205 E Washington Street, Suite 111
Louisville, KY 40206
Telephone: (502) 882-6000
Defendant-Appellee VALVE CORPORATION, a Washington corporation, is
represented by:
Charles B. Casper, Esq.
MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP
123 S. Broad Street
Philadelphia, PA 19109
Telephone: (215) 772-1500
- and -
Gavin W. Skok, Esq.
FOX ROTHSCHILD LLP
1001 Fourth Avenue, Suite 4500
Seattle, WA 98154
Telephone: (206) 624-3600
VOLKSWAGEN AG: 9th Cir. Affirms Dismissal of Schell Liability Suit
------------------------------------------------------------------
In the lawsuit captioned ADAM SCHELL; ANDREW M. OLSON; ANGELA MATT
ARCHITECT INC.; BENJAMIN TYLER DUNN; BRADLEY CONNER; BRENDAN DALY;
BRYAN SHEFFIELD; CATHERINE LAMENZO; DARRYL LECOURS; DEREK
WINEBAUGH; EDDIE FIELD; GISBEL DE LA CRUZ; INGRID SALGADO; JENNIFER
NEMET; JOHN KUBALA; KEN GALLUCCIO; MARK MILLER; MELISSA ST. CROIX;
MICHAEL BOWMAN; MICHAEL SKENA; NORBERT KAHLERT; STEPHEN FRANCK;
STEVEN FERDINAND; STEVEN RAWCZAK; SVEN HOFMANN; THOMAS SIEHL III;
TONYA DREHER, Plaintiffs-Appellants v. VOLKSWAGEN AG; VOLKSWAGEN
GROUP OF AMERICA, INC.; AUDI OF AMERICA, INC.; AUDI
AKTIENGESELLSCHAFT, (Audi AG); AUDI OF AMERICA, LLC; ROBERT BOSCH,
LLC, a Michigan limited liability company; ROBERT BOSCH GMBH, a
German corporation, Defendants-Appellees, Case No. 20-17480 (9th
Cir.), the United States Court of Appeals for the Ninth Circuit
issued a Memorandum affirming the dismissal of the underlying
liability case.
Plaintiffs-Appellants Adam Schell, et al., filed this lawsuit on
behalf of a putative class of consumers, who bought or leased
"clean diesel" automobiles from Volkswagen but disposed of these
vehicles before Volkswagen's "clean diesel" emissions fraud was
publicized. See In re Volkswagen "Clean Diesel" Mktg. Sales Prac. &
Prods. Liab. Litig., 895 F.3d 597, 603 (9th Cir. 2018) (discussing
the nature and extent of this emissions fraud).
The Plaintiffs appeal from the district court's order dismissing
this case for lack of evidence of an Article III injury.
The appeal concerns Defendant-Appellant Volkswagen's factual
challenge to standing under Rule 12(b)(1) (Friends of the Earth v.
Sanderson Farms, Inc., 992 F.3d 939, 944 (9th Cir. 2021)). Once
Volkswagen disputed the truth of the Plaintiffs' factual
allegations as to Article III standing, the Plaintiffs could no
longer rest on mere allegations regarding the existence of such
standing. The Plaintiffs instead had the burden to support their
jurisdictional allegations with competent proof, and, of course,
had the burden of establishing subject matter jurisdiction.
Even assuming the Plaintiffs correctly asserted at oral argument
that the theory of Article III injury before the district court was
that Volkswagen fraudulently induced the Plaintiffs into paying a
"clean diesel premium" for their cars, the Plaintiffs still had to
offer evidence that this price premium exists, the Court of Appeals
notes. The Plaintiffs contend that the expert opinion of Ted
Stockton is sufficient proof of this injury such that their case
should have survived Volkswagen's factual challenge to standing,
and that the district court erred in ruling otherwise. The Court of
Appeals disagrees.
Mr. Stockton admitted in his deposition that he did not calculate
the "clean diesel premium" that was necessary to support the
Plaintiffs' theory for the Article III injury alleged by them. He
instead assumed that his calculation of "excess depreciation" based
on the post-emissions-fraud-disclosure decrease in the value of
used Volkswagens was a "reasonable proxy for overpayment at the
time of initial purchase." This method captures ancillary
post-disclosure factors as to the price of used Volkswagen "clean
diesel" vehicles, such as fear of regulatory action, loss of brand
reputation, and uncertain resale value.
According to the Memorandum, the district court did not abuse its
discretion in concluding that, because Stockton's method relied on
such post-disclosure factors, it was irrelevant to the Plaintiffs'
clean-diesel-premium theory of Article III injury. The Plaintiffs'
argument is unavailing even under their own legal standard. They
did not prove the only Article III injury that they alleged, and
that failure of proof ends the case.
The Plaintiffs argue that the district court erred in obliging them
to prove damages with certainty via Stockton's opinion, and
conditioning standing on whether they mitigated their injuries.
The Court of Appeals holds that the Plaintiffs are incorrect
because the district court did neither. It excluded Stockton's
opinion, not for imprecision, but because it was irrelevant, and
the district court declined to analyze mitigation because the
Plaintiffs offered no proof of a "clean diesel premium."
Because the district court properly exercised its discretion when
it excluded Stockton's opinion, and the Plaintiffs had neither
offered in the district court nor discussed in their Opening Brief
any other supportive evidence of damages, the Court of Appeals
concludes that they lack any admissible evidence of Article III
injury. The Plaintiffs' allegations that they overpaid for "clean
diesel" vehicles due to fraud are insufficient because the district
court dismissed the case at the post-pleading stage after fact and
expert discovery had occurred and the Plaintiffs had a failure of
proof as to standing. Hence, dismissal was appropriate here.
Affirmed.
A full-text copy of the Court's Memorandum dated Jan. 20, 2022, is
available at https://tinyurl.com/ykuvbsem from Leagle.com.
WASHINGTON: HCA Loses Bid for Judgment on Pleadings in Lynch Suit
-----------------------------------------------------------------
In the case, DAVID LYNCH, Plaintiff v. WASHINGTON HEALTHCARE
AUTHORITY, et al., Defendants, Case No. C21-5138 BHS (W.D. Wash.),
Judge Benjamin H. Settle of the U.S. District Court for the Western
District of Washington, Tacoma, granted in part and denied in part
Defendants Washington Health Care Authority and Sue Birch's motion
for judgment on the pleadings.
I. Background
Plaintiff Lynch is a wartime veteran who receives medical care and
assistance under the Community Options Program Entry System
("COPES") Medicaid program and a Veteran's Administration
disability improved pension, which includes Aid and Assistance
("AA") and Unusual Medical Expense ("UME") benefits. He alleges
that Defendant Washington Health Care Authority ("the Agency") and
its director Defendant Birch have wrongfully taken his AA and UME
benefits by defining his VA benefits as a third-party resource,
which increases his Medicaid participation amount. He seeks
declaratory and injunctive relief on behalf of himself and a class
of similarly situated wartime veterans who have had UME and AA
benefits wrongfully taken.
Washington State participates in the joint state-federal Medicaid
program. As part of this program, Washington provides in-home
personal care services to beneficiaries who are both functionally
and financially eligible for the service. Lynch receives such
in-home personal care services, and the Agency determined that he
is eligible for 158 Medicaid in-home care hours per month. Although
Lynch receives in-home personal care through Medicaid, the services
he receives do not cover all of his medical or in-home care needs.
Lynch has an in-home caregiver Monday through Friday for 7.5 hours
a day but does not have care on the weekends. He requires
assistance on the weekends but does not have the money to pay for
an additional caregiver. Lynch also requires dental implants that
cost approximately $57,000, but Medicaid does not cover these
unreimbursed dental expenses. He took out a loan to cover the cost,
which is estimated at $74,733.60 (including interest).
To help cover the costs of his dental implants and additional
in-home care, Lynch applied for increased pension benefits with the
VA. He intended to use his UME benefits to defray the costs of his
dental work, and the AA benefits would allow him to hire another
personal care attendant. The VA increased Lynch's monthly benefit
to $1,029, which includes $218 in pension benefits, $765 in AA
benefits, and $46 in UME benefits.
The Agency received notice of Lynch's increased VA benefits on Dec.
18, 2019 and sent him a letter the same day informing him that the
amount he was required to pay for in-home care would increase to
$916 per month, effective Jan. 1, 2020. The Agency calculated that
Lynch had a countable monthly income of $1,146 ($928 in social
security plus $218 in VA pension benefits). His countable income
minus the $1,041 personal needs allowance resulted in a
participation amount of $105. The Agency counted Lynch's AA and UME
benefits as a third-party resource of $811 and determined that
Lynch was required to pay $916 ($105 participation plus $811
third-party resource) towards the cost of care. Lynch thus uses all
of his AA and UME monthly benefits for his care provider to pay for
continued Medicaid services.
Agency benefit determinations are subject to administrative review.
First, the appellant (i.e., the challenging benefit recipient)
proceeds before the Office of Administrative Hearings and an
Administrative Law Judge ("ALJ"). Once an initial decision is
issued by the ALJ, either party may request review by a Review
Judge with the Board of Appeals. In the case, Lynch challenged the
designation of his UME and AA benefits as third-party resources in
an administrative hearing. The ALJ ruled in favor of Lynch, but the
Review Judge reversed the initial decision.
Mr. Lynch subsequently petitioned for judicial review of the Review
Judge's decision in Thurston County Superior Court. He brought
claims for judicial review of the administrative order entered
against him and the applicable Agency rule that designated his AA
and UME benefits as third-party resources, as well as other common
law and statutory claims. On the Agency's motion, the Thurston
County Superior Court severed Lynch's claims for damages from the
claims he raised under the Washington State Administrative
Procedure Act ("WAPA"), RCW Ch. 34.05. Lynch then refiled his
non-administrative claims and added claims under the Fifth
Amendment and 42 U.S.C. Section 1983. The Defendants removed the
case to the Court.
The Defendants now move for judgment on the pleadings, arguing that
Lynch cannot maintain his federal and state law claims as a matter
of law. Lynch argues that the Agency imposes an unauthorized burden
on veterans by wrongfully taking UME and AA benefits provided by
the VA for non-Medicaid services.
II. Discussion
A. Federal Claims
Mr. Lynch asserts two claims under federal law: A claim for
violations of the Fifth Amendment Takings Clause and a claim under
42 U.S.C. Section 1983. The Defendants argue that Lynch's federal
claims for violations of the Fifth Amendment Takings Clause fail
because he has not alleged a taking of property. They appear to
concede that the Agency reduces public benefits that Lynch would
otherwise receive but assert that no actionable taking has
occurred. Lynch, on the other hand, argues that he has adequately
alleged a regulatory taking claim or, alternatively, a per se
taking claim.
1. Takings Clause
The Fifth Amendment Takings Clause prohibits "private property"
from being "taken for public use, without just compensation." A
classic taking occurs when the "government directly appropriates
private property or ousts the owner from his domain." Beyond a
classic taking, the Supreme Court has held in Pa. Coal Co. v.
Mahon, 260 U.S. 393, 415 (1922), that "if regulation goes too far
it will be recognized as a taking." There are three types of
regulatory actions "that are functionally equivalent to the classic
taking" reflected in the Supreme Court's decisions in Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), Lucas v.
South Carolina Coastal Council, 505 U.S. 1003 (1992), and Penn
Central Transportation Co. v. City of New York, 438 U.S. 104
(1978).
Mr. Lynch argues that he has a viable claim for a Penn Central
regulatory taking, or a per se taking claim based on the
Unconstitutional Conditions Doctrine. But for him to have a viable
Takings Clause claim, there must be a taking of private property.
The Defendants argue that Lynch's "expectation of public benefits
does not constitute a protected property right for the purpose of
the Takings Clause." Lynch argues that he has "a vested protectable
expectation in continuation of the Agency's level of Medicaid
benefits" and a "legal entitlement to use his VA benefits without
being coerced into using them to pay for Medicaid-covered
services."
But, Judge Settle holds that Lynch fails to distinguish Bowen, in
which the Supreme Court held that there is "no protected property
rights to continued benefits at the same level." And as the
Defendants highlight, Lynch has not cited any opinion in which a
court has held that welfare benefits are protected property rights
or that withholding of such benefits constitutes a taking under the
Fifth Amendment. The two cases he relies primarily on for his
theory of the case -- Cordall v. State, 96 Wn.App. 415 (1999), and
Edwards v. Griepentrog, 804 F.Supp. 1310 (D. Nev. 1992) -- were not
Fifth Amendment Takings Clause claims. While Lynch argues that the
Agency cites no federal authority to justify its actions, he has
not provided binding or persuasive authority that he has a
protected property interest to his benefits under the Takings
Clause. The Defendants' motion for judgment on the pleadings is,
therefore, granted, and this claim is dismissed with prejudice.
2. 42 U.S.C. Section 1983
The Defendants next argue that Lynch's standalone Section 1983
claim fails because he has not identified a federal constitutional
or statutory right allegedly violated, except for his rights under
the Fifth Amendment Takings Clause. Indeed, Lynch simply alleges
that "Defendants deprived the class members of their federal
constitutional and/or statutory rights as identified in the
previous sections." A complaint must "give the defendant fair
notice of what the claim is and the grounds upon which it rests."
Section 1983 is merely a vehicle for enforcing individual rights
secured elsewhere, most typically in the United States
Constitution.
Mr. Lynch's complaint does not specify the federal constitutional
and/or statutory rights he claims have been violated outside of the
Fifth Amendment and thus does not give Defendants fair notice of
what his Section 1983 claim is. Regardless, Lynch clarifies his
Section 1983 theories in his response. He asserts that he has a
plausible claim against Birch in her individual capacity under four
theories: (1) a regulatory and per se taking under the Fifth
Amendment; (2) Medicaid Third-Party Liability Law; (3) Medicaid
anti-lien statute; and (4) Veteran Benefits anti-assignment
statute. Judge Settle has already determined that Lynch does not
have a viable Takings Clause claim but will consider his remaining
theories, though unpled.
Mr. Lynch argues that Ninth Circuit precedent supports his Section
1983 claim to enforce Medicaid rights. Judge Settle Lynch's Section
1983 theories fail to state a claim, Judge Settle finds. First, in
regard to his Medicaid Third-Party Liability Law theory, federal
law requires states or local administering agencies to take "all
reasonable measures to ascertain the legal liability of third
parties" for costs incurred under state Medicaid plans. The
intended beneficiary of the Medicaid recoupment statutes is the
federal government. This statute does not create a federal right
actionable under Section 1983 under the Blessing test. Next,
Lynch's theory under the Medicaid anti-lien statute, 42 U.S.C.
Section 1396p(a), fails because he has not alleged that Defendants
ever imposed a lien.
Finally, and similarly, the Veteran Benefits anti-assignment
statute, 38 U.S.C. Section 5301, is inapplicable. The Defendants
have not made a claim of an attachment or levy nor have they seized
Lynch's VA benefits; the Agency (nor Birch) never actually took
possession of Lynch's AA and UME benefits before he received them.
Thus, the anti-assignment statute is inapplicable.
Under these theories, Lynch's 42 U.S.C. Section 1983 claim fails as
a matter of law. The Defendants' motion for judgment on the
pleadings is, therefore, granted, and the claim is dismissed with
prejudice.
3. State Law Claims
Mr. Lynch also brings state law claims for conversion, unjust
enrichment, violation of state vendor payment principle, and writ
of mandate. The Defendants argue that Lynch cannot maintain these
state law claims in the Court as a matter of law because his
petition for judicial review pending in Thurston County Superior
Court constitutes "the exclusive means of judicial review of agency
action" under the Washington State Administrative Procedure Act
("WAPA"). Lynch asserts that an exception to this rule applies
because he is bringing a class action. WAPA excepts certain
"ancillary procedural matters before the reviewing court,"
including class actions, from its exclusivity mandate.
Judge Settle declines to exercise supplemental jurisdiction over
Lynch's state law claims. He has dismissed all claims over which
the Court has original jurisdiction, and the parties would not be
prejudiced by it declining supplemental jurisdiction. Lynch's WAPA
claim is still pending in state court, and the state court is
better situated to determine whether Lynch may maintain his
non-WAPA state law claims as a class action. The Defendants' motion
for judgment on pleadings is therefore denied as to Lynch's state
law claims.
III. Order
Therefore, Judge Settle granted in part and denied in part the
Defendants' motion for judgment on the pleadings. He dismissed
Lynch's Fifth Amendment Takings Clause claim and 42 U.S.C. Section
1983 claim with prejudice. Lynch's motion to certify class and
motion for extension of time are denied without prejudice to refile
in state court.
The action will be remanded to the Superior Court for Thurston
County, Cause No. 21-2-00175-34. The Clerk is directed to send
certified copies of the Order to the Clerk of the Court for
Thurston County Superior Court.
A full-text copy of the Court's Feb. 1, 2022 Order is available at
https://tinyurl.com/2p8dmzyb from Leagle.com.
WEST VIRGINIA: Loses Objection to Protective Order Denial in Baxley
-------------------------------------------------------------------
In the lawsuit styled JOHN BAXLEY, JR., EARL EDMONDSON, JOSHUA
HALL, DONNA WELLS-WRIGHT, HEATHER REED, and DANNY SPIKER, JR., on
their own behalf and on behalf of others similarly situated,
Plaintiffs v. BETSY JIVIDEN, in her official capacity as
Commissioner of the West Virginia Division of Corrections and
Rehabilitation, Defendant, Case No. 3:18-1526 (S.D.W.Va.), the U.S.
District Court for the Southern District of West Virginia,
Huntington Division, issued a Memorandum Opinion and Order:
-- denying the Defendant's Objection to Magistrate Judge's
Ruling Denying "Motion for Protective Order Objections to
Rule 34 Notice of Inspection" and Granting Plaintiffs'
"Motion to Extend Deadline to Permit Limited Rule 34
Inspection by Less Than Two Weeks";
-- affirming Magistrate Judge Omar J. Aboulhosn's Order; and
-- denying as moot the Defendant's Motion to Stay.
Factual Background
The action is a certified class action on behalf of all
incarcerated people in West Virginia jails, regarding the
Defendant's alleged deliberate indifference to serious medical
needs and failure to provide adequate mental and medical health
care during incarceration. The case has been rife with contentious
discovery issues, including the Defendant's objections to
inspection of its facilities on similar grounds to those presented,
both of which were overruled.
Relevant is the Plaintiffs' most recent Notice of Rule 34
Inspection, which seeks to allow their expert, Dr. Venters, to
conduct additional inspections at the jails in light of changed
COVID-19 policies. This notice was filed after the course of
litigation rendered the Plaintiffs' older inspections stale, as
detailed by the Court previously. The Plaintiffs subsequently
withdrew their Renewed Emergency Motion for Preliminary Injunction,
which the Court granted.
In response to the Notice of Inspection, the Defendant filed her
objections to the notice and an Expedited Motion for a Protective
Order, which was referred to Magistrate Judge Aboulhosn. The
Plaintiffs then also filed a Motion to Extend Deadline to permit
inspections past the original deadline contemplated by the
scheduling order.
Magistrate Judge Aboulhosn considered the briefing of the parties
and held a motions hearing on the protective order and extension on
Jan. 14, 2022. After the hearing, Magistrate Judge Aboulhosn
entered an order, which denied the Defendant's Motion for
Protective Order and granted the Plaintiffs' Motion to Extend
Deadline to permit the inspection. Magistrate Judge Aboulhosn also
extended the expert witness disclosure deadlines.
The Defendant objected to the order. In conjunction with the
objection, she also filed a Motion to Stay, which sought to stay
the inspections ordered by the Magistrate Judge, pending the
Court's ruling on the objections. The Plaintiffs have filed
responses both to the Motion to Stay and the Objection.
Analysis
The Defendant filed a timely objection to Magistrate Judge
Aboulhosn's Order on Jan. 19, 2022. The Objection makes several
arguments, including: (1) the Court's order permitting Rule 34
inspections after the Rule 16 deadline was clear error because the
Plaintiffs did not show good cause to modify the scheduling order;
(2) the Court failed to apply Rule 16 in determining whether to
extend the deadline; and (3) the Plaintiff's Response to the Motion
for Protective Order does not address the legal standard for
modification of a Scheduling Order and the requisite evidence
necessary to modify the Court's Order was not presented or relied
upon by the Magistrate Judge.
The Court has considered the discovery motions, orders of
Magistrate Judge Aboulhosn, objections, and the memoranda submitted
in support and opposition to the foregoing. Nondispositive orders
of Magistrate Judges are afforded great deference, and the Court
finds no clear error in Magistrate Judge Aboulhosn's rulings, nor
were they contrary to law.
District Judge Robert C. Chambers notes that discovery of the case
has been quarrelsome--it is clear from the record that the parties
have disagreed at almost every turn. Nevertheless, despite the
combative lawyering on both sides of this dispute, Magistrate Judge
Aboulhosn's rulings have been well-reasoned and fair, Judge
Chambers finds.
The Defendant's contentions can all be addressed by the same
analysis because she essentially contends that the Magistrate
Judge's decision should have been governed by Rule 16 of the
Federal Rules of Civil Procedure and its attendant good cause
standard, Judge Chambers notes. Federal Rule of Civil Procedure
16(b) provides that once a scheduling order has been entered, it
may be modified only for good cause and with the judge's consent.
This good cause standard focuses on the timeliness of the amendment
and the reasons for its tardy submission; the primary consideration
is the diligence of the moving party.
Here, Magistrate Judge Aboulhosn, in his Order, noted that there
were "substantially changed conditions or circumstances at the
jails" and that the Plaintiffs point out that the Court has
previously denied the Defendant's objections to similar site
inspections and state that the Defendant's conduct has only caused
delays; therefore, any issues related to timeliness is caused by
the Defendant, a position he found to be "reasonable."
Judge Chambers states that this speaks to both the Plaintiffs'
diligence and changed conditions forming good cause. Additionally,
the Plaintiffs noticed their inspections just three weeks after the
adverse ruling on the motion to enforce settlement and two weeks
(which included the winter holidays) after they noticed their
withdrawal of the motion for preliminary injunction in light of the
need for additional inspection.
Further, the Plaintiffs specifically noted that Dr. Venters was not
able to perform the inspections until Jan. 24, 2022, at the
earliest, and their motion for extension was made prior to the
deadline of inspection's passing. Further, Magistrate Judge
Aboulhosn found that inspection would not prejudice the Defendant,
but that the Plaintiffs' class action is dependent upon presenting
evidence and will be severely prejudiced if their expert is
prevented from inspecting these locations where ostensibly, the
Defendant has enacted revised measures to address Covid.
Consideration of prejudice to parties was also appropriate and cuts
in favor of finding good cause to modify the Scheduling Order,
Judge Chambers holds.
Conclusion
The Federal Rules of Evidence and the case law of this Circuit give
magistrate judges substantial discretion over nondispositive
matters. The Court is not disposed to overrule orders of a
magistrate judge where there are not obvious errors of a
substantive nature or clear mistakes of law.
Judge Chambers holds that there is sufficient evidence in the
record to support Magistrate Judge Aboulhosn's finding that good
cause existed and his subsequent decisions to deny the Protective
Order and grant the Motion to Extend and modify the Scheduling
Order. Accordingly, the Defendant's Objection and Appeal is denied.
Magistrate Judge Aboulhosn's Memorandum Opinion and Order is
affirmed. Given that the Court has ruled on the Objections, the
attendant Motion to Stay is denied as moot.
The Court directs the Clerk to send a copy of the Order to counsel
of record and any unrepresented parties.
A full-text copy of the Court's Memorandum Opinion and Order dated
Jan. 20, 2022, is available at https://tinyurl.com/3vvtsytt from
Leagle.com.
WESTCARE CALIFORNIA: Hollingsworth Files Suit in Cal. Super. Ct.
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A class action lawsuit has been filed against Westcare California,
Inc. The case is styled as Donald Hollingsworth, individually and
on behalf of all others similarly situated v. Westcare California,
Inc., Case No. BCV-22-100324 (Cal. Super. Ct., Kern Cty., Feb. 8,
2022).
The case type is stated as "Other Employment - Civil Unlimited."
WestCare -- https://www.westcare.com/ -- is a national nonprofit
offering a broad spectrum of behavioral health and human services
in 19 States, four U.S. territories, and three countries.[BN]
The Plaintiff is represented by:
Jessica L. Campbell, Esq.
AEGIS LAW FIRM
9811 Irvine Center Dr., Ste. 100
Irvine, CA 92618
Phone: 949-379-6250
WHENEVER COMMUNICATIONS: Iskhakova Files ADA Suit in E.D. New York
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A class action lawsuit has been filed against Whenever
Communications, LLC. The case is styled as Marina Iskhakova, on
behalf of herself and all others similarly situated v. Whenever
Communications, LLC, Case No. 1:22-cv-00733 (E.D.N.Y., Feb. 9,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Whenever Communications doing business as Satellite Phone Store --
https://satellitephonestore.com/ -- is a global provider of
satellite voice and data communication solutions.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
WILEY X INC: Abreu Files ADA Suit in S.D. New York
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A class action lawsuit has been filed against Wiley X, Inc. The
case is styled as Luigi Abreu, individually, and on behalf of all
others similarly situated v. Wiley X, Inc., Case No. 1:22-cv-01094
(S.D.N.Y., Feb. 8, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Wiley X -- https://www.wileyx.com/ -- has been supplying Military,
Government, Law Enforcement, Fire and EMS professionals with
premium eyewear protection.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
MIZRAHI & KROUB LLP
200 Vesey St, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: jmizrahi@mizrahikroub.com
WOODLAKE TECHNOLOGIES: Iskhakova Files ADA Suit in E.D. New York
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A class action lawsuit has been filed against Woodlake
Technologies, Inc. The case is styled as Marina Iskhakova, on
behalf of herself and all others similarly situated v. Woodlake
Technologies, Inc., Case No. 1:22-cv-00726-NGG-RER (E.D.N.Y., Feb.
9, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Woodlake Technologies -- https://www.woodlaketechnologies.com/ --
is a leader in providing assistive technology solutions to people
with disabilities.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
WYNDHAM VACATION: Court Stays Dupree Suit Pending Arbitration
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The U.S. District Court for the Western District of Missouri,
Southern Division, grants the Defendant's motion to dismiss or stay
proceedings and compel arbitration, and stays the lawsuit styled
JERRY D. DUPREE, et al., Plaintiffs v. WYNDHAM VACATION RESORTS,
INC., Defendant, Case No. 21-CV-03290-SRB (W.D. Mo.).
Background
On Sept. 28, 2020, Plaintiffs Jerry D. Dupree and Terry R. Dupree
entered a contract with the Defendant to purchase one of its
timeshares in Branson, Missouri. The Plaintiffs allege that the
Defendant used a high-pressure sales presentation designed to keep
them from reading the contracts, reflecting or deliberating on the
decision to purchase, discussing with each other their decision to
purchase and omitting crucial facts about the timeshare. On Nov.
25, 2020, while the Plaintiffs were using their timeshare property,
an intruder broke one of the windows and entered the premises.
Responding to an emergency call, the Branson Police Department
discovered that the timeshare's windows were not properly secured.
The Plaintiffs subsequently sued the Defendant in the Circuit Court
of Taney County, Missouri. They seek to cancel the contract and
recover damages for violation of the Missouri Merchandising
Practices Act based on the Defendant's alleged misleading
advertisement and sales tactics (Count I), failure to maintain
property (Count II), breach of contract (Count III), and negligence
(Count IV). On Nov. 12, 2021, the Defendant removed the case to
this Court and filed the pending motion to dismiss, or stay, this
case and compel arbitration.
The Defendant argues that the Plaintiffs' claims are subject to a
binding arbitration provision contained in the timeshare contract.
The arbitration provision states that the American Arbitration
Association ("AAA") would administer the arbitration under its
Consumer Arbitration Rules.
The Defendant seeks to dismiss, or stay, this case and compel the
Plaintiffs to arbitrate their claims in accordance with the
timeshare contract's arbitration provision. The Plaintiffs oppose
the motion, arguing the arbitration provision is invalid.
Discussion
The Defendant argues, and the Plaintiffs do not dispute, that the
arbitration provision covers their claims. However, the Plaintiffs
contest the validity of the arbitration provision, arguing it (1)
lacks mutual assent; (2) lacks consideration; (3) and is
unconscionable. The Defendant disagrees.
A. Mutual Assent
The Plaintiffs argue that the arbitration agreement lacks mutual
assent. In Missouri, offer and acceptance require mutual agreement,
which is reached when the minds of the contracting parties meet
upon and assent to the same thing in the same sense at the same
time (Kunzie v. Jack-In-The-Box, Inc., 330 S.W.3d 476, 483 (Mo.
App. E.D. 2010)). A proposal to enter into a bilateral agreement
must be accepted by both parties for a contract to be formed (Baier
v. Darden Restaurants, 420 S.W.3d 733, 738 (Mo. App. W.D. 2014).
The Plaintiffs contend that their case is on point with Baier. As
evidence of a lack of mutual assent, the Plaintiffs note that the
arbitration provision contains two designated initial lines for the
Plaintiffs and two blank initial lines which they argue are for the
Defendant's agent to sign. The Plaintiffs contend that the
Defendant's lack of initials means the Defendant failed to assent
to the arbitration provision.
However, unlike the acknowledgement in Baier, the Court finds the
purpose of the initial lines in the timeshare contract was not to
memorialize the parties' mutual assent to arbitrate. The initial
line only exists for the Plaintiffs, not the Defendant. Thus,
dissimilar to Baier, which contained an unsigned employer-signature
line, the Defendant did not fail to sign or initial lines required
as a condition of mutual assent.
District Judge Stephen R. Bough adds that the Defendant signed
under the line designated for its "Authorized Agent" at the end of
the contract. The Defendant relies on more than a self-serving
statement to prove mutual assent. In turn, the Court finds the
arbitration agreement is supported by mutual assent.
B. Consideration
The Plaintiffs argue that the arbitration provision lacks
consideration because it contains a carve-out clause. They argue
that this clause forces them to arbitrate all their claims while
the Defendant has excluded its most likely claims from arbitration.
They contend that because only they are bound, the arbitration
provision lacks consideration.
The Court rejects this argument. Even assuming if the carve-out
clause functionally eliminates the Defendant's obligation to
arbitrate, the Plaintiffs do not argue that the timeshare contract
as a whole is not supported by adequate consideration. To be sure,
the Court finds the consideration requirement is met.
Because the contract is supported by consideration, the carve-out
clause does not render the arbitration provision invalid, Judge
Bough opines.
C. Unconscionability
The Plaintiffs argue the arbitration provision is unconscionable
because they were subjected to high-pressure sales tactics and the
Defendant fraudulently induced their purchase of the timeshare.
They also contend that the arbitration provision is procedurally
unconscionable because it contains a delegation clause, the
carve-out clause, and a class-action waiver clause. The Court
rejects the Plaintiffs' arguments.
Judge Bough states that the Plaintiffs' arguments about the
Defendant's sales tactics and misrepresentations apply to the
contract as a whole and are not specific to the arbitration
clause.
Whether the Defendant's sales tactics, misrepresentations, and
other allegedly fraudulent behavior renders the contract
unconscionable, without evidence of fraud specific to the
arbitration clause, must be left for an arbitrator to decide, Judge
Bough holds.
The Plaintiffs state they specifically challenge the delegation
provision based upon the same arguments they are making on the
unenforceability of the Arbitration Agreement. The Court finds
these arguments fail because, despite the Plaintiffs' statement to
the contrary, they are not specific to the delegation clause.
The Plaintiffs also argue the delegation clause is unenforceable
because the contract incorporates by reference the AAA Consumer
Arbitration Rules. Judge Bough finds that the existence of the
delegation clause does not render the arbitration provision
unconscionable.
The Plaintiffs contend the carve-out clause is unconscionable for
the same reason they argue it lacks consideration. However, Judge
Bough opines, lack of mutuality as to the arbitration agreement
does not itself invalidate that arbitration agreement. As
previously discussed, the carve-out clause does not render the
arbitration provision unconscionable because the contract is
supported by adequate consideration.
Finally, the class-action waiver clause does itself invalidate the
arbitration provision unconscionable, Judge Bough states, citing
AT&T Mobility LLC v. Concepcion, 653 U.S. 333, 344 (2011). The
Plaintiffs do not explain why the class-action waiver in this case
specifically is unconscionable, and the Eighth Circuit has upheld
arbitration agreements with similar language; see Cicle v. Chase
Bank USA, 583 F.3d 549, 555-56 (8th Cir. 2009).
The Court, thus, finds the arbitration provision valid. In turn,
the Defendant's motion is granted to the extent it seeks to compel
arbitration. However, the Court finds that because the entire
dispute may not be resolved in arbitration, a stay is more
appropriate than a dismissal of this case.
Conclusion
Accordingly, it is ordered that the Defendant's Motion to Dismiss
(or Stay Proceedings) and Compel Arbitration is granted and this
case is stayed pending resolution of the arbitration.
The Court further ordered that within two weeks of completion of
the arbitration proceedings, the parties will advise the Court if
further proceedings are necessary or if the matter can then be
dismissed.
A full-text copy of the Court's Order dated Jan. 20, 2022, is
available at https://tinyurl.com/mvcatwsj from Leagle.com.
*********
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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