/raid1/www/Hosts/bankrupt/CAR_Public/220218.mbx
C L A S S A C T I O N R E P O R T E R
Friday, February 18, 2022, Vol. 24, No. 30
Headlines
AMAZON.COM INC: Fights Back Class Cert. in Flex Shoppers Suit
AMERIFACTORS FINANCIAL: Files Cross-Appeal in TCPA Case
ASTRA SPACE: Kaskela Law Announces Shareholder Class Action
ASTRA SPACE: Rosen Law Firm Reminds of April 11 Deadline
BLUETRITON BRANDS: Faces Class Suit Over Misleading Sparkling Water
BP AMERICA: Thompson Sues Over Unpaid Overtime for Oil Workers
CANADA: Class Action Members' Details Accidentally Released
CANADIAN IMPERIAL: Must Face Overtime Policy Class Action Suit
CANADIAN TRUCKING: Anti-Vax Truckers Faces Suit Over Ilegal Protest
CHANGE HEALTHCARE: Breaches of Fiduciary Duty Suit Dismissed
CHOBANI LLC: Court Won't Allow Nacarino to File 3rd Amended Suit
CITIBANK NA: Appeals Class Certification Ruling in Head TCPA Suit
DEBBY BURK: Hanyzkiewicz Suit Seeks Blind's Access to Online Store
DIRECTV LLC: Cordoba Appeals Summary Judgment Ruling in TCPA Case
DONNELLEY FINANCIAL: S.D. New York Dismisses Toretto Class Suit
DXC TECHNOLOGY: Court of Appeals Affirms Securities Suit Dismissal
DXC TECHNOLOGY: State Court to Allow Additional Briefing
ELANCO ANIMAL: Faces Suit Over Mislabeled Dogs' Parasite Protection
ELECTRONIC ARTS: Battlefield 2042 Refund Petition Hit Milestone
EVOLUTION WELL: McAfee & Taft Attorney Discusses Labor Class Action
FAMILY DOLLAR: Illinois Court Narrows Claims in Rudy Class Suit
FCA US: Chrysler Pentastar Problems Cause Class Action Lawsuit
FENNEC PHARMACEUTICALS: Pomerantz LLP Reminds of April 11 Deadline
FLINT, MI: $39.6M CBA & $7.2M in Expenses Awarded in Water Cases
FMC CORP: Herbicide Causes Damage to Barley Crops, Class Suit Says
FORD MOTOR: Faces Class Action over Defective Water Pumps
FPA VILLA: Court Grants Bid for Summary Judgment in Lawrence Suit
GENRENEW LLC: Underpays Sales Representatives, Sagastume Alleges
GOOGLE LLC: Coffee Appeals Loot Boxes Suit Dismissal
INSOMNIA COOKIES: Hine Sues Over Unpaid Wages for Delivery Drivers
INTUITIVE SURGICAL: Faces Antitrust Suit Over Medical Instruments
JEFLO & CO: Vazquez Sues Over Unpaid Wages for Delivery Workers
JENKINSON'S PAVILION: Abreu Seeks Blind's Equal Website Access
JIM KOONS: Faces Proposed Class Action Over Data Breach
JJ ARADHANA: Marquez Sues Over Restaurant Staff's Unpaid Wages
JOHN HANCOCK: May 17 Class Settlement Fairness Hearing Set
JOHNSON CONTROLS: Faces Suits Over Toxic Foam Product
JUUL LABS: Faces Gilmer Suit Over E-Cigarette Campaign to Youth
KONINKLIJKE PHILIPS: CPAP Devices "Defective," Stillman Suit Says
LIFEVANTAGE CORP: Class Certification Hearing Pending in D. Conn.
LUMENTUM HOLDINGS: Karri Securities Suit Pending in N.D. Cal.
LUMENTUM HOLDINGS: Securities Suits Over Merger Deal Dismissed
MAHWAH, NJ: Faces Class Action Over Contamination in Drinking Water
MARION COUNTY, IN: Settles Improper Jail Detention Class Action
MARYLAND MGMT: Court Vacates Dismissal of All of Simmons' Claims
MDL 2741: Renteria Suit Consolidated in Roundup Products Litigation
MDL 2804: Four Suits Consolidated in Prescription Opiate Litigation
MDL 2885: Seven Suits Consolidated in 3M Earplug Litigation
MEDIALAB.AI INC: Faces Suufi Suit Over Disclosed Info to Facebook
MODCUP LLC: Blind Seeks Equal Website Access, Abreu Suit Claims
MP MATERIALS: Rosen Law Firm Investigates Securities Claims
MYRIAD GENETICS: Sued Over Incorrect Prenatal Screening Results
NATIONAL COLLEGIATE: Court Partly Strikes Expert Report in Golden
NATIONAL FOOTBALL: Commissioner Addressed NFL's Lack of Diversity
NISSAN MOTOR: "Serious Defects" Cause Engine Failure, Suit Says
ORRKLAHOMA WEST: Patterson FLSA Suit Removed to W.D. Oklahoma
PARTY CITY CORP: Faces Class Suit Over Failure to Pay Proper Wages
PRECISION METAL: Trinh Wage-and-Hour Suit Goes to S.D. California
RECONNAISANCE ENERGY: Faces Shareholders' Class Action Lawsuits
SAINT-GOBAIN PERFORMANCE: Class Action Settled in PFOA Suit
SOCIETE DES LOTERIES: Langlois Lawyers Discusses Court Ruling
SPECIAL FRUIT: Matos Class Suit Seeks Unpaid OT Wages Under FLSA
STATE FARM: Loses Bid to Dismiss Palmer's First Amended Complaint
STATE STREET: Lieff Cabraser Fails to Reverse Sanction Over Fees
STICKER MULE: Smith FTSA Suit Removed to M.D. Florida
SYMPHONY BRONZEVILLE: Ruling in BIPA Class Action Suit Discussed
TAL EDUCATION: Bronstein Gewirtz Reminds of April 5 Deadline
TALKSPACE INC: Kessler Topaz Reminds of March 8 Deadline
TELOS CORP: Bragar Eagel Reminds of April 8 Deadline
TELOS CORP: Gainey McKenna Reminds of April 8 Deadline
TRANS VALLEY: Order Denying Arbitration Bid in Mendoza Suit Upheld
TRUE HEALTH: Faces Class Action Over Alleged Data Breach
TYSON FOODS: Settles Turkey Price-Fixing Class Action for $4.62MM
UNITED FOOD: Nagel Appeals Summary Judgment Ruling in Labor Suit
UNITED STATES: Ninth Circuit Allows Quashing of Subpoena for DeVos
VITAL PHARMACEUTICALS: Brown Sues Over BANG Drinks' Deceptive Label
VOESTALPINE AG: Settles Class Suit Over Emissions for $88 Million
[*] Fisher Phillips Discusses H.R. 4445 Bill About Sexual Assault
[*] Judge Warns Against Personal Prejudice in Class Action Debate
[*] U.S. Class Action Settlement Payments Discussed
Asbestos Litigation
ASBESTOS UPDATE: Ashland Global Has $320MM Total Reserves
ASBESTOS UPDATE: Constellation Energy Has $82MM Est. Liabilities
ASBESTOS UPDATE: Dow Inc.'s Subsidiary Still Faces Exposure Suits
ASBESTOS UPDATE: Ford Motor Faces Product Liability Claims
ASBESTOS UPDATE: Johnson Controls Defends Personal Injury Suits
ASBESTOS UPDATE: Meritor Estimates $60MM in Asbestos Claims
ASBESTOS UPDATE: Otis Worldwide Still Defends PI Lawsuits
ASBESTOS UPDATE: Union Carbide Has $1.02BB Total Liabilities
*********
AMAZON.COM INC: Fights Back Class Cert. in Flex Shoppers Suit
-------------------------------------------------------------
David McAfee, writing for Bloomberg Law, reports that Amazon.com
Inc. and Prime Now LLC tried on Feb. 8 to fight back class
certification in an action brought in federal court in California
on behalf of flex shoppers who say they aren't properly paid for
time spent choosing shifts.
Mario Mabanta worked as a flex shopper from March 2018 through
December 2018. The job entails preparing Amazon online grocery
orders for delivery. His suit alleges that he and others were
required to spend considerable time scheduling shifts without being
compensated. He also alleged that he had worked without breaks due
to the demands of Amazon orders. [GN]
AMERIFACTORS FINANCIAL: Files Cross-Appeal in TCPA Case
-------------------------------------------------------
Amerifactors Financial Group, LLC filed a cross-appeal from a
summary judgment ruling entered in the lawsuit entitled Career
Counseling, Inc., d/b/a Snelling Staffing Services, a South
Carolina corporation, individually and as the representative of a
class of similarly situated persons, Plaintiff v. Amerifactors
Financial Group, LLC, and John Does 1-5, Defendants, Civil Action
No. 3:16-cv-03013-JMC, in the United States District Court for the
District of South Carolina at Columbia.
As reported in the Class Action Reporter, Plaintiff Career
Counseling, on behalf of itself and all others similarly situated,
filed the instant putative class action seeking damages and
injunctive relief from Defendants Amerifactors Financial Group, LLC
("AFGL") and John Does 1-5 for alleged violations of the Telephone
Consumer Protection Act ("TCPA") of 1991, as amended by the Junk
Fax Prevention Act of 2005 ("JFPA"), 47 U.S.C. Section 227, and the
regulations promulgated under the TCPA by the United States Federal
Communications Commission ("FCC").
Career Counseling is an employment staffing agency, which acts as a
middleman between employers and prospective workers. AFGL is an
accounts receivable financing firm that engages in factoring.
Factoring is a process in which AFGL purchases a business's
accounts receivable of unpaid invoices for a discounted price with
the intention of collecting the full value of the unpaid invoices
at a later date. In June of 2016, AFGL became interested in
marketing by fax and, as a result, contracted with AdMax, a fax
marketer.
Career Counseling asserts that unsolicited faxes were sent by or on
behalf of AFGL to 58,945 other recipients.
On Sept. 2, 2016, Career Counseling filed a putative Class Action
Complaint in this court alleging violation of the TCPA. On Oct. 28,
2016, AFGL filed a Motion to Dismiss. After the parties responded
and replied to the Motion to Dismiss, the Court entered an Order
that granted AFGL's Motion to Dismiss pursuant to Rule 12(b)(1) and
dismissed the Class Action Complaint without prejudice.
On July 15, 2020, AFGL filed a Motion to Dismiss Plaintiff's First
Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6). After
considering the parties extensive briefing, the Court denied AFGL's
Motion to Dismiss on Dec. 22, 2020. Thereafter, AFGL answered the
Amended Complaint and the parties engaged in extensive discovery
regarding the extent to which the facsimile at issue was sent to
the putative class.
On March 16, 2021, Career Counseling filed Rule 23 Motions. On
April 15, 2021, AFGL filed a Memorandum of Law in Opposition to
Motion for Class Certification, to which Career Counseling filed a
Reply in Support of Its Motion for Class Certification on April 30,
2021. The Court heard argument from the parties as to their
respective positions at a hearing on May 19, 2021.
On July 16, 2021, the Court entered an order denying Plaintiff's
Motion to Certify Class, and denying as moot Plaintiff's Motion to
Appoint Class Counsel and Motion to Appoint Class Representative.
Consequently, Career Counseling filed a motion for summary judgment
on October 28, 2021, asserting that "there is no genuine issue of
material fact that (i) the Fax [at issue] is an 'advertisement'
under 47 U.S.C. Section 227(a)(5); (2) Defendant is the 'sender' of
the Fax; and (3) the Fax was sent to a 'telephone facsimile
machine' using a 'telephone facsimile machine, computer, or other
device." AmeriFactors opposed the Motion saying it should be denied
because the record demonstrates that factual issues remain with
respect to Plaintiff's TCPA claim.
On January 31, 2022, the Honorable J. Michelle Childs entered an
Order and Opinion granting Plaintiff's Motion for Summary Judgment
and awarded its statutory damages for $500 for violation of the
Telephone Consumer Protection Act of 1991, as amended by the Junk
Fax Prevention Act of 2005.
On Feb. 7, 2022, the Plaintiff filed an appeal in the United
States Court of Appeals for the Fourth Circuit captioned Career
Counseling, Inc. v. Amerifactors Financial Group, LLC, Case No.
22-1119.
AFGL's cross-appeal is captioned Amerifactors Financial Group, LLC
v. Career Counseling, Inc., Case No. 22-1136, in the United States
Court of Appeals for the Fourth Circuit, filed on Feb. 11,
2022.[BN]
Defendant-Appellant AMERIFACTORS FINANCIAL GROUP, LLC is
represented by:
Jonathan M. Knicely, Esq.
William Harding Latham, Esq.
NELSON MULLINS RILEY & SCARBOROUGH, LLP
P. O. Box 11070
Columbia, SC 29211
Telephone: (803) 255-9593
E-mail: bill.latham@nelsonmullins.com
- and -
Lauri Anne Mazzuchetti, Esq.
Whitney M. Smith, Esq.
KELLEY DRYE & WARREN, LLP
1 Jefferson Road
Parsippany, NJ 07054
Telephone: (973) 503-5910
Plaintiff-Appellee CAREER COUNSELING, INC., d/b/a Snelling Staffing
Services, a South Carolina corporation, individually and as the
representative of a class of similarly-situated persons, is
represented by:
John Gressette Felder, Jr., Esq.
MCGOWAN, HOOD & FELDER, LLC
1517 Hampton Street
Columbia, SC 29201
Telephone: (803) 779-0100
E-mail: jfelder@mcgowanhood.com
- and -
Glenn Lorne Hara, Esq.
Ryan Michael Kelly, Esq.
ANDERSON & WANCA
3701 Algonquin Road
Rolling Meadows, IL 60008
Telephone: (847) 368-1500
E-mail: rkelly@andersonwanca.com
ASTRA SPACE: Kaskela Law Announces Shareholder Class Action
-----------------------------------------------------------
Kaskela Law LLC on Feb. 9 disclosed that a shareholder class action
lawsuit has been filed against Astra Space, Inc. ("Astra" or the
"Company") (NASDAQ: ASTR), f/k/a Holicity Inc. (NASDAQ: HOL), on
behalf of investors who purchased HOL or ASTR shares between
February 2, 2021 and December 29, 2021, inclusive (the "Class
Period").
Astra operates as a space launch company. The current company was
formed in July 2021 via a business combination between special
purpose acquisition company ("SPAC") Holicity (NASDAQ: HOL) and
Astra, with Astra as the surviving, publicly traded entity.
On December 29, 2021, market researcher Kerrisdale Capital released
a report entitled "Astra Space, Inc (ASTR): Headed for Dis-Astra"
(the "Report") which alleged a myriad of issues with the Company.
As detailed in the complaint, the Report detailed concerns about
the Company's: (i) "claims that it can launch anywhere"; (ii)
"reliability and quality issues"; and (iii) "plans for
diversification and its broadband constellation plan." Following
that Report, shares of the Company's stock fell $1.10 per share, or
approximately 14% in value, to close at $6.61 per share on December
29, 2021, on unusually heavy trading volume.
Astra investors with financial losses in excess of $25,000 are
encouraged to contact Kaskela Law LLC (Adrienne Bell, Esq.) at
(888) 715-1740, or by email (abell@kaskelalaw.com) or online at
https://kaskelalaw.com/cases/holicity-astra/, for additional
information about this action and their legal rights and options.
Kaskela Law LLC exclusively represents investors in state and
federal actions throughout the country. For additional information
about Kaskela Law LLC please visit www.kaskelalaw.com.
CONTACT:
D. Seamus Kaskela, Esq.
Adrienne Bell, Esq.
KASKELA LAW LLC
18 Campus Blvd., Suite 100
Newtown Square, PA 19073
(888) 715-1740
(484) 229-0750
www.kaskelalaw.com [GN]
ASTRA SPACE: Rosen Law Firm Reminds of April 11 Deadline
--------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, on Feb. 9
disclosed that it has filed a class action lawsuit on behalf of
purchasers of the securities of Astra Space, Inc. f/k/a Holicity,
Inc. (NASDAQ: ASTR, HOL) between February 2, 2021 and December 29,
2021, inclusive (the "Class Period"). A class action lawsuit has
already been filed. If you wish to serve as lead plaintiff, you
must move the Court no later than April 11, 2022.
SO WHAT: If you purchased Astra securities during the Class Period
you may be entitled to compensation without payment of any out of
pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the Astra class action, go
http://www.rosenlegal.com/cases-register-2233.htmlhttp://www.rosenlegal.com/cases-register-1961.html
or call Phillip Kim, Esq. toll-free at 866-767-3653 or email
pkim@rosenlegal.com or cases@rosenlegal.com for information on the
class action. A class action lawsuit has already been filed. If you
wish to serve as lead plaintiff, you must move the Court no later
than April 11, 2022. A lead plaintiff is a representative party
acting on behalf of other class members in directing the
litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources, or
any meaningful peer recognition. Many of these firms do not
actually litigate securities class actions. Be wise in selecting
counsel. The Rosen Law Firm represents investors throughout the
globe, concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose: (1) Astra cannot launch "anywhere"; (2)
Astra significantly overstated its addressable market; (3) Astra
overstated the effectiveness of its designs and reliability; (4)
Astra significantly overstated its plans for diversification and
its broadband constellation plan; and (5) as a result, defendants'
public statements were materially false and/or misleading at all
relevant times. When the true details entered the market, the
lawsuit claims that investors suffered damages.
To join the Astra class action, go
http://www.rosenlegal.com/cases-register-2233.htmlhttp://www.rosenlegal.com/cases-register-1961.html
or call Phillip Kim, Esq. toll-free at 866-767-3653 or email
pkim@rosenlegal.com or cases@rosenlegal.com for information on the
class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
BLUETRITON BRANDS: Faces Class Suit Over Misleading Sparkling Water
-------------------------------------------------------------------
Keller and Heckman LLP, in an article for The National Law Review,
reports that a proposed class action lawsuit filed on February 4
alleged that Poland Spring sparkling water, owned by BlueTriton
Brands, Inc., misled consumers with the claim "a twist of lemon"
because the water lacked "the amount and type of lemon ingredients
expected by plaintiff and consumers." As alleged in the complaint,
customers expect the lemon flavor to come from lemon oil, lemon
extract, or lemon juice, instead of natural flavors.
The plaintiff, Timothy Alexander, argued that the claim "a twist of
lemon" refers to the "literal twisting of the outer portion of a
lemon round," and would cause a consumer to believe that the water
contained actual lemon juice. However, as estimated in the
complaint, the water likely only contained approximately 0.1 mL of
lemon ingredients.
In addition to the "a twist of lemon" claim, the label also
declared a characterizing flavor statement, or as referred to in
the complaint as a "disclaimer." Alexander argued that the
"disclaimer" (i.e., "naturally flavored spring water with other
natural flavors and CO2") is "used so extensively on labeling that
is has become the equivalent of a labeling tic, affixed to a
majority of products with added flavoring," and thus does not
inform consumers that the product does not contain an appreciable
amount of lemon.
The complaint stated that the value of the water purchased by
Alexander was materially less than the value represented by
BlueTriton, and that more water was sold at higher prices than
would have been had the "a twist of lemon" claim not been declared
on the label. Alexander seeks to represent customers in Illinois
under the state's customer fraud and deceptive practices law, as
well as customers in Iowa, Arizona, Ohio, Alabama, Louisiana, West
Virginia, Michigan, Texas, Arkansas, Virginia, and Oklahoma as part
of a separate consumer fraud multistate class. [GN]
BP AMERICA: Thompson Sues Over Unpaid Overtime for Oil Workers
--------------------------------------------------------------
RHONDA THOMPSON, individually and on behalf of all others similarly
situated, Plaintiff v. BP AMERICA PRODUCTION COMPANY and ENSLEY
PROPERTIES, INC., Defendants, Case No. 4:22-cv-00473 (S.D. Tex.,
February 11, 2022) is a class action against the Defendants for
unpaid overtime wages in violation of the Fair Labor Standards
Act.
The Plaintiff worked for the Defendant as a landman from October
2018 until May 2020.
BP America Production Company is an international energy company,
with its principal place of business in Houston, Texas.
Ensley Properties, Inc. is a real estate agency, with its principal
place of business in Houston, Texas. [BN]
The Plaintiff is represented by:
Josh Borsellino, Esq.
Borsellino, P.C.
1020 Macon St., Suite 15
Fort Worth, TX 76102
Telephone: (817) 908-9861
Facsimile: (817) 394-2412
E-mail: josh@dfwcounsel.com
CANADA: Class Action Members' Details Accidentally Released
-----------------------------------------------------------
Lee Berthiaume, writing for The Canadian Press, reports that the
company administering the federal government's $900-million
settlement deal with Armed Forces members and veterans who
experienced sexual misconduct while in uniform has inadvertently
released private information about dozens of claimants.
Epiq Class Action Services Canada confirmed the privacy breach on
Feb. 9, after a veteran said she had received an email containing
letters intended for more than 40 other people.
Retired master corporal Amy Green said she was shocked when she
discovered she had been sent names, email addresses and claim
numbers, which she said is enough information to access certain
parts of a claimant's file.
"If I wanted to, I could just log in and upload anything to their
file because I have their email address and their claimant ID,"
said Green, who left the military in 2014 and now lives in London,
Ont. "So I could tamper with anything."
The Federal Court appointed Epiq to administer the settlement
process after the government reached an agreement in November 2019
with plaintiffs in three overlapping class-action lawsuits dealing
with sexual misconduct in the military.
In response to a request for comment, Epiq spokeswoman Angela
Hoidas said "limited information" about fewer than 100 of the
20,000 people who have applied for compensation were sent to
another claimant.
"Epiq's investigation found that the inadvertent disclosure was
caused by human error," Hoidas said in an email. "We promptly
implemented new procedures to ensure this does not happen again and
have taken the appropriate disciplinary action."
She went on to say that all those whose personal information was
disclosed have been contacted, and that the company "fully
understands the importance of protecting personal information and
sincerely regrets this error."
Green nonetheless expressed concern about the mistake, particularly
given the nature of the claims and settlement deal. She also said
that despite the company's assurances, she continues to harbour
questions and concerns about the scope of the breach.
"Is this a one-off and am I the only one who received it?" Green
asked. "It should never have happened. Even one is too many."
She added she doesn't know what to do with the email. However,
while some people have suggested she seek legal counsel, she said
she will likely delete it once she is sure what Epiq says about the
limited scope of the privacy breach is true.
"I don't want it, I don't even want to look at it," she said. "It
makes me uncomfortable to have it."
Toronto lawyer Jonathan Ptak, who represented some of the
plaintiffs involved in the lawsuits, said on Feb. 9 that Epiq had
only just notified counsel about the privacy breach involving some
members of the settlement agreement.
"Privacy is of the utmost importance and this issue is being fully
investigated," he said in an email. "We have been advised that
urgent steps are being taken by the administrator to prevent any
further disclosure and to ensure that this does not occur again."
Veterans Affairs Canada referred questions to the Department of
National Defence, which did not immediately respond to requests for
comment. [GN]
CANADIAN IMPERIAL: Must Face Overtime Policy Class Action Suit
--------------------------------------------------------------
The Canadian Press reports that the Ontario Court of Appeal has
dismissed efforts by the Canadian Imperial Bank of Commerce to
overturn a ruling in an overtime class-action lawsuit filed more
than a decade ago.
The court affirmed a 2020 lower court ruling that the bank's
overtime policies contravened the Canada Labour Code and other
aspects of the bank's overtime practices.
Dara Fresco, a former CIBC teller and class counsel, brought this
case in 2007.
The bank vigorously opposed the claims, first by arguing that the
case should not proceed as a class action and then by arguing that
the case should be dismissed on its merits.
However, Ontario Superior Court Justice Edward Belobaba decided in
favour of the class action of about 31,000 retail bank employees.
CIBC spokesman Tom Wallis said the bank was reviewing the decision
and assessing next steps.
"We believe we maintain effective overtime policies and practices
in place, including a clear overtime policy that is easily
accessible," he wrote in an email.
A hearing is scheduled on Sept. 28 to determine damages for unpaid
hours.
"CIBC has made enormous profits off the labour of hard-working
retail bank employees," stated Fresco in a news release.
"Fifteen years is a very long time to wait to be paid what we are
owed. My hope is that the bank's executives take the Court's
decision to heart and pay what it owes without further delay." [GN]
CANADIAN TRUCKING: Anti-Vax Truckers Faces Suit Over Ilegal Protest
-------------------------------------------------------------------
Mary Papenfuss at huffpost.com reports that a group of fed-up
Canadians has filed a $9.8 million class-action lawsuit against a
mob of anti-vaccine truckers who have packed downtown Ottawa for a
week, blasting the ear-piercing air horns of their vehicles day and
night.
The rogue drivers' "Freedom Convoy" began as a protest against the
requirement that all truckers crossing the border to or from the
United States must be vaccinated against COVID-19, although demands
have since expanded.
The use of air horns - for up to 16 hours in a 24-hour period - is
a "key tactic" of the protest, and one intended to cause
"psychological distress" and "discomfort," according to the
complaint filed with the Ontario Superior Court of Justice.
For the 6,000 residents in the Centretown neighborhood of Ottawa in
the immediate vicinity of the protest, "the non-stop blaring horns
have caused unbearable torment in the sanctity of their own homes,"
the complaint states.
The filing notes that the horns on semi-trucks emit noise as loud
as 150 decibels and are not meant to be used for longer than a few
seconds because the sound levels can permanently damage the human
ear. The sound level downtown now exceeds limits established by
Canada's Federal Occupational Health and Safety Regulations, the
complaint states.
"This is a siege. It is something that is different in our
democracy than I've ever experienced in my life," Peter Sloly,
chief of the Ottawa Police, said. Ottawa has considered asking for
federal help as similar actions spread to Toronto, Winnipeg, Quebec
City and other provincial capitals.
A court hearing seeking an injunction to stop the protest was
adjourned.
The Canadian Trucking Alliance, the main advocacy organization for
the nation's truckers, and the Ontario Trucking Association have
disavowed the protest, the Ottawa Citizen reported. The Trucking
Alliance said the vast majority of its members are fully vaccinated
and are continuing to work.
GoFundMe shut down an online fundraising campaign and blocked money
raised for the protest because of "unlawful" activities, it said in
a statement.
"We now have evidence from law enforcement that the previously
peaceful demonstration has become an occupation, with police
reports of violence and other unlawful activity," the statement
added. It initially said money raised would be refunded or
redirected to charities, and later said it would simply refund all
donations.
Ontario Premier Doug Ford said the action had ceased being a
protest, and had become an "occupation" - and "unacceptable."
But leaders of the action have vowed that the trucks won't leave
until mask and vaccine mandates instituted for public health safety
are eliminated.
Residents where the protesters are encamped complain of harassment
and even assaults. Traffic is paralyzed, stores have closed, and
residents are hiding out in their homes. [GN]
CHANGE HEALTHCARE: Breaches of Fiduciary Duty Suit Dismissed
------------------------------------------------------------
Change Healthcare Inc. disclosed in its 10Q Quarterly Report for
the quarterly period ended December 31, 2021, filed with the
Securities and Exchange Commission on February 3, 2022, that a
putative class action alleging breaches of fiduciary duty, was
filed in Tennessee Chancery Court, and was voluntarily dismissed
without prejudice on March 17, 2021.
Change Healthcare Inc. is an independent healthcare technology
company.
CHOBANI LLC: Court Won't Allow Nacarino to File 3rd Amended Suit
----------------------------------------------------------------
In the case, ELENA NACARINO, Plaintiff v. CHOBANI, LLC, Defendant,
Case No. 20-cv-07437-EMC (N.D. Cal.), Judge Edward M. Chen of the
U.S. District Court for the Northern District of California:
(i) denied the Defendant's motion to dismiss the Plaintiff's
Third Amended Complaint; and
(ii) granted in part and denied in part its motion to strike
the Plaintiff's new allegations in the TAC.
I. Background
Plaintiff Nacarino brings the putative class action against
Defendant Chobani based in California consumer-protection law over
allegedly unlawful labeling on a Chobani yogurt container. In her
TAC, the Plaintiff now specifically alleges that the "unqualified
'Vanilla' representation on the front of the packaging, which she
relied upon in making her purchase, violated FDA regulations in
that the vanilla flavor of the Product is not independently derived
from the vanilla plant but rather contains other non-vanilla plant
flavoring that simulates, resembles, or reinforces the
characterizing vanilla flavor of the Product."
The Court previously noted that the case was one of many recent
putative class actions targeting allegedly deceptive labeling on
vanilla food products that are not flavored, either exclusively or
in significant part, with vanilla extract or vanilla bean -- e.g.,
Clark v. Westbrae Natural, Inc., 2020 WL 7043879 (N.D. Cal. Dec. 1,
2020) ("Clark I"); Cosgrove v. Blue Diamond Growers, 2020 WL
7211218 (S.D.N.Y. Dec. 7, 2020); Zaback v. Kellogg Sales Co., 2020
WL 6381987 (S.D. Cal. Oct. 29, 2020). Notably, many plaintiffs have
focused on manufacturers' use of the term "vanilla" on product
labels.
The Plaintiff's counsel filed the case on behalf of Plaintiff
Nacarino and a purported class of California consumers on Oct. 23,
2020. After a hearing on the Defendant's motion to dismiss the
second amended complaint, the Court issued an order granting in
part and denying in part the Defendant's motion to dismiss the
Plaintiff's SAC with leave to amend.
According to the SAC, the Plaintiff purchased a container of
Chobani yogurt (the "Product") at a Whole Foods grocery store in
San Francisco, California, in 2020. The Product is named "Greek
Yogurt Vanilla Blended," displaying what the Plaintiff terms the
"Vanilla Representations" on its container. The Plaintiff relied on
the vanilla representations in concluding that the Product's
vanilla flavor comes "exclusively from ingredients derived from the
vanilla plant, such as vanilla beans or vanilla extract," and in
purchasing the Product.
The Plaintiff brought claims under (1) the unlawful prong of
California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code
Section 17200 et seq.; (2) the unfair and fraudulent prongs of the
UCL; (3) California's False Advertising Law ("FAL"), Cal. Bus. &
Prof. Code Sections 17500 et seq.; and (4) California's Consumer
Legal Remedies Act ("CLRA"), Cal. Civ. Code Section 1750 et seq.
Additionally, the Plaintiff sought declaratory relief, restitution
and disgorgement, injunctive relief, compensatory and punitive
damages, and attorneys' fees and costs.
In its Aug. 9, 2021 Order, the Court held that no reasonable
consumer would take the Product's use of the word "vanilla" on the
front and the package's vanilla imagery as indicating that the
Product's flavor is derived exclusively from the vanilla plant, as
the Product does not display any statements "even arguably
conveying that vanilla bean or extract is the exclusive source of
its vanilla flavor." As such, it dismissed the Plaintiff's claims
under the unfair and fraudulent prongs of the UCL, the FAL, and the
CLRA without leave to amend "since further amendment would be
futile, given the manifest implausibility of her deceptive labeling
claims."
However, the Court found that the Plaintiff "adequately alleged
that the Product does not comply with 21 C.F.R. Section 101.22(i),
as she asserts that the Product's flavoring does not derive
exclusively from the vanilla plant and that its label does not
include 'with other natural flavor' in compliance with the
prescriptive terms of Section 101.22(i)(1)(iii)." It further
explained in its Order that given the "allegedly stark differences
in" the mass spectrometry testing results on the Product and
competitor products noted in the SAC, the Plaintiff "plausibly pled
that the Product is not exclusively flavored with 'real' vanilla."
Further, it determined that the Plaintiff "may pursue only some of
the equitable remedies that she requests under the UCL's unlawful
prong, as she lacks an adequate remedy at law with respect to her
request for injunctive relief but not her request for equitable
restitution."
However, since the Court was unable to conclude that amendment
would be futile, it granted the Plaintiff leave to amend "to plead
that damages are inadequate and that she is thus entitled to seek
equitable restitution under the UCL's unlawful prong." Thus, the
Court permitted the Plaintiff's UCL unlawful prong claim to
proceed, specifically as to her request for injunctive relief.
Notably, in its Order granting leave to amend, the Court
acknowledged that the district court in Elgindy v. AGA Service Co.,
2021 WL 1176535 (N.D. Cal. Mar. 29, 2021), suggested that a
plaintiff could pursue equitable remedies under the UCL where such
claims were "rooted in a different theory" of liability and
involved different factual allegations than her claims for damages.
It noted that in the instant case, the Plaintiff's claims were
rooted in the same allegations that labeling the Product "vanilla"
is misleading to consumers and a violation of the FDA regulations.
In response to the Court's grant of leave to amend, the Plaintiff's
TAC added the allegation that the "Plaintiff lacks an adequate
remedy at law because the UCL, the only claim brought by her, does
not provide for damages." Additionally, as noted, the Plaintiff
adds a new factual allegation that the Product label violates FDA
regulations, not because the vanilla flavor allegedly does not come
exclusively from the vanilla plant, but because the "vanilla flavor
of the Product does not come independently from the vanilla plant."
The Plaintiff now alleges that the same "scientific testing
revealed that the characterizing vanilla flavor of the Product does
not come independently from vanilla extract or other ingredients
derived from the vanilla plant" with regard to her FDA regulation
violation claim.
The Defendant claims that the Plaintiff's TAC should be dismissed
primarily on the following two grounds: (1) the Plaintiff "has
again failed to allege why monetary damages are inadequate, as
required by the Court's order"; and (2) "Plaintiff lacks standing
to bring her UCL unlawful claim for injunctive relief" based on an
intervening Ninth Circuit case In re Coca-Cola Prods. Mktg. & Sales
Practices Litig. It also argues that if the Court declines to
dismiss the TAC, the Court "should strike the Plaintiff's new
allegations that far exceed the scope of the Court's Order granting
leave to amend." Finally, the Defendant asserts that "there is an
independent ground for dismissal of the TAC in its entirety: The
Plaintiff fails to plausibly allege a violation of the UCL's
unlawful prong, which requires that Plaintiff allege actual
reliance and a resulting injury-in-fact."
III. Analysis
A. Failure to State a Claim Under UCL's Unlawful Prong
Presently, the Plaintiff's sole claim for relief is under the
unlawful prong of the UCL. Notably, she specifically claims the
Product's label was "unlawful" under the UCL insofar as it violated
the Sherman Law, see Cal. Health & Saf. Code Section 110100, which
adopts and incorporates the federal Food and Drug Cosmetic Act, 21
U.S.C. Section 301 et seq., and its food labeling regulations.
The Defendant contends that the Plaintiff's UCL claim should be
dismissed in its entirety because she fails to state a claim under
the UCL's unlawful prong since she: (1) Fails to plausibly allege
that her reliance on the Product caused her to be deceived such
that she suffered an injury in fact, and (2) fails to meet the
heightened pleading requirements of (9)(b).
The Plaintiff argues that the "law of the case precludes
reconsideration" of this issue since the Court already found that
she "'plausibly pled that the Product does not comply with 21
C.F.R. Section 101.22(i) and thus violates the UCL's unlawful
prong.'" She states that the Court based its finding that she
plausibly pled her claim under the unlawful prong of the UCL on
"allegations in the SAC that remain in her TAC."
Taken as a given plausible claim of a violation of federal law,
Judge Chen turns to the Defendant's argument that the Plaintiff has
failed to adequately plead loss of money or property as a result of
a violation -- i.e. reliance (in the case of misrepresentation) as
required by the UCL.
First, Judge Chen denies the Defendant's motion to dismiss for
failure to state a claim. He finds that although given the Court's
prior determination that no reasonable consumer would conclude the
package implies the vanilla flavor is derived exclusively (or
independently) from the vanilla plant, the Plaintiff has arguably
sufficiently pled her actual reliance resulting in her alleged
injury in the case. The Plaintiff alleges that she "sought a yogurt
product whose characterizing vanilla flavor is independently
derived from the vanilla plant" and "read and relied on the
Defendant's label on the Product to believe that the characterizing
flavor of the Product was vanilla and that the vanilla flavor came
independently from the vanilla plant." Additionally, she contends
that had she "known the truth, she would not have purchased the
Product at a premium price or bought the Product at all."
Second, Judge Chen also denies the Defendant's motion to dismiss
for failure to state a claim on the basis that the Plaintiff failed
to satisfy heightened pleading requirements of Rule (9)(b). He
holds that the Plaintiff does explain how she relied on
representations on the label to reach the conclusion that the
Product's vanilla flavor is "independently derived" from the
vanilla plant. She explicitly alleges that she "read and relied on
the Defendant's label on the Product to believe that the
characterizing flavor of the Product was vanilla and that the
vanilla flavor came independently from the vanilla plant." Contrary
to the Defendant's assertion, it appears that the Plaintiff's
allegations satisfy 9(b)'s how requirement.
B. Adequacy of Legal Remedy
The Plaintiff specifically alleges that she lacks an adequate
remedy at law because the UCL, the only claim she now brought does
not provide for damages. The Defendant argues that the TAC still
fails to allege that monetary damages are inadequate and argues
that Plaintiff's allegation that the UCL does not provide for
damages is conclusory." Further, it states that the Plaintiff
failed to "add any factual allegations to explain how monetary
damages are inherently inadequate to redress her alleged harm and
still 'has not demonstrated that there is an inherent limitation of
the legal remedy.'"
Judge Chen holds that the Plaintiff initially pled a claim for
damages under the CLRA and a claim for restitution under the UCL.
After the Court dismissed her CLRA claim on the merits, the
Plaintiff now pleads that there is an inadequate legal remedy since
she has no other basis to assert damages. Moreover, the Plaintiff
has added allegations that arguably distinguishes her UCL claim to
some extent from the prior CLRA claim. Thus, "while he may reassess
at a later stage of the case, Judge Chen declines to trim out the
Plaintiff's equitable restitution claim at this early stage." The
issue of the Plaintiff's entitlement to seek the equitable remedy
of restitution may be revisited at a later stage. As such, Judge
Chen denies the Defendant's motion to dismiss the Plaintiff's claim
for restitution.
C. Standing to Seek Injunctive Relief
The Defendant specifically claims that under In re Coca-Cola
Products Marketing & Sales Practices Litigation (No. II), No.
20-15742, 2021 WL 3878654 (9th Cir. Aug. 31, 2021), the Plaintiff
lacks standing under Article III to pursue injunctive relief since
her "conditional promise to purchase a reformulated product is
insufficient as a matter of law" and she has not attempted to
allege that she has or imminently will suffer from any "imminent or
particularized harm." As such, the Defendant argues that the
Plaintiff's UCL claim should be dismissed in its entirety with
prejudice.
The Plaintiff broadly asserts that "the law of the case precludes
reconsideration of issues already decided by the Court." She gues
that the "Defendant identifies no proper basis for this Court to
reconsider its prior rulings that she plausibly pled her claim
under the unlawful prong of the UCL and that she has standing with
respect to that claim." She specifically argues that In re
Coca-Cola does not constitute an intervening change in the law as
it simply reiterated the standing requirement of Davidson v.
Kimberly-Clark Corp., 889 F.3d 956 (9th Cir. 2018).
Judge Chen denies the Defendant's motion to dismiss the Plaintiff's
request for injunctive relief on standing grounds. He finds that in
contrast to the In re Coca-Cola plaintiffs, the Plaintiff alleges
that she would purchase the Product again in the future if the
Product were reformulated such that the characterizing vanilla
flavor of the Product is independently derived from the vanilla
plant or if the labeling complied with federal and state
regulations. The Plaintiff alleges more than "a bare procedural
violation" and that the Court's prior finding that the Plaintiff
establish standing for injunctive relief still obtains.
D. Striking New Allegations
If the Court does not dismiss the Plaintiff's UCL claim in its
entirety, the Defendant argues in the alternative that the Court
should strike the Plaintiff's revised allegations under Rule 12(f)
for exceeding the scope of the Court's order granting leave to
amend with regard to her claim for equitable relief. Further, it
states that "the case is past the point where the Plaintiff may
file an amended complaint as a matter of course" and argues that
her new allegations are outside the scope of the Court's Order and
an "impermissible attempt to change her factual allegations without
leave of Court as required under Rule 15."
In her opposition, the Plaintiff notes that she "took into account
the Court's analysis of Elgindy" and states that all of her new
allegations "stem directly from the Court's Order dismissing her
deception claims and granting her leave to amend her complaint to
plead that damages are inadequate."
Judge Chen grants in part and denies in part the Defendant's motion
to strike the Plaintiff's new allegations. He finds that the
Defendant appears correct in that the Court's order was somewhat
limited as it specifically granted the Plaintiff leave to amend her
remaining claim under the UCL's unlawful prong to plead the
inadequacy of legal remedies with respect to her request for
equitable restitution. However, by now solely alleging a single
claim under the UCL's unlawful prong based on the new and different
theory that the Defendant's labeling violated FDA regulations since
the Product is not derived independently from the vanilla plant,
Plaintiff took note of the Court's emphasis on Elgindy.
The Plaintiff's new allegations regarding laboratory testing of
other related products as well as her new allegations regarding the
source and characteristics of vanillin arguably support her new
theory. On the other hand, the Plaintiff's other new allegations --
that she purchased the 32 ounce size of the Product; that she is
now seeking injunctive relief ordering the Defendant to commence
corrective action when she previously requested injunctive relief
to commence a corrective advertising campaign; and changing her
benefit of the bargain allegations to allege that she would have
purchased other products that are properly labeled -- are not
within the scope of the Court's Order granting leave to amend.
Those allegations are thus struck.
IV. Conclusion
For the foregoing reasons, Judge Chen denied the Defendant's motion
to dismiss; and granted in part and denied in part its motion to
strike the Plaintiff's new allegations in the TAC. The Order
disposes of Docket No. 54.
A full-text copy of the Court's Feb. 4, 2022 Order is available at
https://tinyurl.com/yckr2mr2 from Leagle.com.
CITIBANK NA: Appeals Class Certification Ruling in Head TCPA Suit
-----------------------------------------------------------------
CITIBANK, N.A. filed an appeal from a court ruling granting class
certification in the lawsuit entitled Christine Head v. Citibank,
N.A., Case No. 3:18-cv-08189-ROS, in the U.S. District Court for
the District of Arizona, Prescott.
The lawsuit was filed on August 15, 2018, seeking to stop the
Defendant's practice of making unsolicited calls in violation of
the Telephone Consumer Protection Act.
As reported in the Class Action Reporter on Feb. 1, 2022, the Hon.
Judge Roslyn O. Silver entered an order:
1. granting the Plaintiff's renewed motion for class
certification and appointment of class counsel;
2. certifying the class, pursuant to Federal Rules of 21
Civil Procedure 23(a) and 23(b)(3), as:
"All persons and entities throughout the United States (1)
to whom Citibank, N.A. placed a call in connection with a
past-due credit card account, (2) directed to a number
assigned to a cellular telephone service, but not assigned
to a current or former Citibank, N.A. customer or
authorized user, (3) via its Aspect dialer and with an
artificial or prerecorded voice, (4) from August 15, 2014
through the date of class certification;"
3. appointing the law firms of Meyer Wilson Co., LPA and
Greenwald Davidson Radbil PLLC as class counsel pursuant
to Federal Rule of Civil Procedure 23(g); and
4. denying the Defendant's Supplemental Brief on Plaintiff's
Motion for Class Certification and Defendant's Motion to
Exclude the Testimony of Carla Peak, to the extent that it
seeks to exclude the testimony of Plaintiff's expert,
Carla Peak, on the subject of notice procedures pursuant
to Federal Rule of Civil Procedure 23(c).
The Defendant now seeks a review of this class certification ruling
by Judge Silver.
The appellate case is captioned as Christine Head v. Citibank,
N.A., Case No. 22-80007, in the United States Court of Appeals for
the Ninth Circuit, filed on Feb. 11, 2022.[BN]
Defendant-Petitioner CITIBANK, N. A. is represented by:
Daniel Jt McKenna, Esq.
Burt M. Rublin, Esq.
BALLARD SPAHR LLP
1735 Market Street
Philadelphia, PA 19103-7599
Telephone: (215) 864-8321
- and -
Matthew A. Morr, Esq.
BALLARD SPAHR, LLP
1225 17th Street, Suite 2300
Denver, CO 80202
Telephone: (303) 292-2400
Plaintiff-Respondent CHRISTINE HEAD, on behalf of herself and
others similarly situated, is represented by:
Michael Joseph Boyle, Jr., Esq.
Matthew R. Wilson, Esq.
MEYER WILSON CO., LPA
305 W. Nationwide Blvd.
Columbus, OH 43215
Telephone: (614) 224-6000
E-mail: mboyle@meyerwilson.com
mwilson@meyerwilson.com
- and -
Michael Greenwald, Esq.
GREENWALD DAVIDSON RADBIL PLLC
7601 N. Federal Highway, Suite A-230
Boca Raton, FL 33487
Telephone: (561) 826-5477
E-mail: mgreenwald@gdrlawfirm.com
- and -
Aaron David Radbil, Esq.
GREENWALD DAVIDSON RADBIL PLLC
106 East Sixth Street, Suite 913
Austin, TX 78704
Telephone: (561) 826-5477
E-mail: aradbil@gdrlawfirm.com
DEBBY BURK: Hanyzkiewicz Suit Seeks Blind's Access to Online Store
------------------------------------------------------------------
MARTA HANYZKIEWICZ, individually and on behalf of all others
similarly situated, Plaintiff v. DEBBY BURK OPTICAL, LTD.,
Defendant, Case No. 1:22-cv-00796-EK-RLM (E.D.N.Y., February 11,
2022) is a class action against the Defendant for violations of the
Americans with Disabilities Act and the New York City Human Rights
Law.
According to the complaint, the Defendant has failed to design,
construct, maintain, and operate its website to be fully accessible
to and independently usable by the Plaintiff and other blind or
visually-impaired persons. The Defendant's website,
www.debspecs.com, contains access barriers which hinder the
Plaintiff and Class members to enjoy the benefits of its online
goods, content, and services offered to the general public through
the website. These alleged access barriers include, but not limited
to: (a) lacks alternative text, (b) fails to add a label element or
title attribute for each field, (c) contains same title elements,
and (d) contains a host of broken links.
The Plaintiff and Class members seek permanent injunction to cause
a change in the Defendant's corporate policies, practices, and
procedures so that the Defendant's website will become and remain
accessible to blind and visually-impaired individuals.
Debby Burk Optical, Ltd. is an online retail company that conducts
business in New York. [BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Suite 620
Hackensack, NJ 07601
Telephone: (201) 282-6500
Facsimile: (201) 282-6501
E-mail: mrozenberg@steinsakslegal.com
DIRECTV LLC: Cordoba Appeals Summary Judgment Ruling in TCPA Case
-----------------------------------------------------------------
Plaintiff Sebastian Cordoba filed an appeal from a court ruling
entered in the lawsuit entitled Sebastian Cordoba, et al. v.
DIRECTV, LLC, Case No. 1:15-cv-03755-MHC, in the U.S. District
Court for the Northern District of Georgia.
The class action accuses DirecTV of making illegal telemarketing
calls to names on the National Do Not Call (NDNC) Registry. In an
order, Judge Mark H. Cohen held that unsolicited telephone calls
are an invasion of privacy under the Telephone Consumer Protection
Act that constitute a concrete injury necessary to demonstrate
Article III standing, noting that an injury can be intangible and
still be considered "concrete."
On July 23, 2020, the Court denied without prejudice Plaintiff's
renewed motion for class certification addressing class member
standing.
On February 12, 2021, the Court granted Defendant's motion for
summary judgment as to certified NDNC class claims and Cordobas'
individual IDNC claims in Counts I and II of the Third Amended
Class Action Complaint.
The Plaintiff now seeks a review of both orders.
The appellate case is captioned as Sebastian Cordoba v. DIRECTV,
LLC, Case No. 22-10389, in the United States Court of Appeals for
the Eleventh Circuit, filed on Feb. 2, 2022.
The briefing schedule in the Appellate Case states that:
-- The appellant's brief is due on or before March 14, 2022;
-- The appendix is due no later than 7 days from the filing of
the appellant's brief;
-- Appellant's Certificate of Interested Persons is due on or
before Feb. 22, 2022 as to Appellant Sebastian Cordoba; and
-- Awaiting Appellee's Certificate of Interested Persons due on
or before March 8, 2022 as to Appellee.[BN]
Plaintiff-Appellant SEBASTIAN CORDOBA, individually and on behalf
of all others similarly situated, is represented by:
Michael Joseph Boyle, Jr., Esq.
Matthew R. Wilson, Esq.
MEYER WILSON CO., LPA
305 W Nationwide Blvd
Columbus, OH 43215
Telephone: (614) 224-6000
E-mail: mboyle@meyerwilson.com
mwilson@dmlaws.com
- and -
Douglas I. Cuthbertson, Esq.
Daniel Morris Hutchinson, Esq.
Jonathan D. Selbin, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery St Fl 29
San Francisco, CA 94111
Telephone: (415) 956-1000
E-mail: dcuthbertson@lchb.com
dhutchinson@lchb.com
jselbin@lchb.com
- and -
Jonathan David Grunberg, Esq.
Nicole Jennings Wade, Esq.
G. Taylor Wilson, Esq.
WADE GRUNBERG & WILSON, LLC
600 Peachtree St NE Ste 3900
Atlanta, GA 30308
Telephone: (404) 445-8363
E-mail: jgrunberg@linwoodlaw.com
nwade@linwoodlaw.com
twilson@linwoodlaw.com
- and -
Sean A. Petterson, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson St Fl 8
New York, NY 10013
Telephone: (212) 355-9592
- and -
Matthew M. Wilkins, Esq.
Stephen A. Yaklin, Esq.
KING YAKLIN & WILKINS, LLP
192 Anderson St Ste 125
Marietta, GA 30060
Telephone: (770) 424-9235
E-mail: mwilkins@kingyaklin.com
syaklin@kingyaklin.com
- and -
L. Lin Wood, Esq.
L. LIN WOOD, PC
PO Box 52584
Atlanta, GA 30355-0584
Telephone: (404) 891-1402
E-mail: lwood@linwoodlaw.com
Defendant-Appellee DIRECTV, LLC, individually and as successor
through merger to DIRECTV, Inc. successor by merger with DIRECTV,
Inc., is represented by:
Ava J. Conger, Esq.
John P. Jett, Esq.
KILPATRICK TOWNSEND & STOCKTON, LLP
1100 Peachtree St Ste 2800
Atlanta, GA 30309
Telephone: (404) 815-6500
- and -
Hans J. Germann, Esq.
John Muench, Esq.
Kyle J. Steinmetz, Esq.
MAYER BROWN, LLP
71 S Wacker Dr
Chicago, IL 60606-4637
Telephone: (312) 782-0600
E-mail: hgermann@mayerbrown.com
jmuench@mayerbrown.com
- and -
Kara W. Ong, Esq.
CINGULAR WIRELESS, LLC
5565 Glenridge Connector NE Ste 1700
Atlanta, GA 30342-4756
Telephone: (404) 236-6000
E-mail: kara.ong@att.com
DONNELLEY FINANCIAL: S.D. New York Dismisses Toretto Class Suit
---------------------------------------------------------------
In the case, PHILLIP TORETTO, DANIEL C. KING, and SHERI BRAUN,
individually and on behalf of others similarly situated, Plaintiffs
v. DONNELLEY FINANCIAL SOLUTIONS, INC. and MEDIANT COMMUNICATIONS,
INC., Defendants, Case No. 1:20-cv-2667-GHW (S.D.N.Y.), Judge
Gregory H. Woods of the U.S. District Court for the Southern
District of New York:
(i) granted in part and denied in part Mediant's motion to
dismiss the Plaintiffs' complaint; and
(ii) granted in full Donnelley's motion to dismiss the
Plaintiffs' complaint.
I. Background
The Plaintiffs bring the putative class action against Defendants
Donnelley and Mediant, alleging claims for negligence, negligence
per se, breach of contracts to which Plaintiffs are third-party
beneficiaries, unjust enrichment, violation of the California
Customer Records Act (the "CRA"), violation of the California
Unfair Competition Law (the "UCL"), violation of the Florida
Deceptive and Unfair Trade Practices Act (the "FDUTPA"), and
declaratory judgment. The Plaintiffs' claims stem from a data
breach of one of Mediant's email servers, in which hackers stole
the personal information of over 200,000 individuals. Mediant
obtained the Plaintiffs' personal information while working with
Donnelley to provide proxy services to public companies and mutual
funds in which the Plaintiffs had invested.
On April 1, 2019, hackers gained unauthorized access to Mediant's
business email accounts. The hackers stole the personal information
of a number of individuals, including the named Plaintiffs in the
present case. Mediant had received the personal information as part
of its business providing investor communication services to
financial institutions. It discovered the hack the day of the
intrusion, and promptly disconnected the affected server from its
system. Mediant began an investigation into the breach, but the
company did not immediately notify the impacted customers. It was
not until the end of May 2019, nearly two months after the breach,
that Mediant notified the affected customers. The breach was truly
massive: notices went out to "over 200,000 individuals in all 50
states and the District of Columbia and Puerto Rico."
The Plaintiffs allege that the hack was enabled by Mediant's poor
network security. "The criminal hackers would not have been able to
gain access to four email accounts simultaneously but for Mediant
maintaining deficient controls to prevent and monitor for
unauthorized access." And Mediant did not encrypt personal
information stored in the company's system. The Plaintiffs also
allege that Mediant failed to adequately notify its customers
regarding the breach.
Donnelley and Mediant work together to provide proxy services.
Partially in reliance on Donnelley and Mediant's description of
themselves as a partnership, the Second Amended Complaint (the
"SAC")alleges that the pair formed a legal partnership and refers
to them collectively as the "Partnership." The SAC alleges that
Donnelley "had equal rights in the management and conduct of the
Partnership." It also states that Donnelley had the "right as a
partner in the Partnership" to "exercise appropriate managerial
oversight of Mediant's data security."
Donnelley is alleged to be liable for the security breach at
Mediant for two reasons. First, the Plaintiffs assert that
Donnelley is vicariously liable for the hack at Mediant and its
consequences because the pair were partners. Second, they assert
that Donnelley was directly liable for the Plaintiffs' injuries
because of its alleged "failure to exercise appropriate managerial
oversight of Mediant's data security."
The Plaintiffs assert that they are third party beneficiaries of
contracts entered into between Donnelley and its customers -- the
funds and companies to whom it provides proxy and other financial
services. Donnelley "entered into contracts with public companies
and mutual funds to provide and perform proxy services." The
personal information of each of the named Plaintiffs was stolen as
a result of their investment in identified funds. The SAC alleges
that Donnelley acted "in the ordinary course of the business of the
Partnership" when it entered into contracts with customers to
provide proxy services. As a result of Donnelley's agreement with
the funds in which the named Plaintiffs invested, Mediant was
provided their personal data, which was later stolen in the hack.
The Plaintiffs previously brought actions against Mediant in the
Northern District of California and the Southern District of
Florida. Both of those actions were dismissed for lack of personal
jurisdiction -- Toretto v. Mediant Commc'ns, Inc., No. 19-cv-52980,
2020 WL 1288478 (N.D. Cal. Mar. 18, 2020); and Braun v. Mediant
Commc'ns, Inc., No. 19-62563-CIV, 2020 WL 5038780 (S.D. Fla. Apr.
14, 2020). Presumably, those failed attempts led the Plaintiffs to
the Southern District of New York, given that Mediant is
headquartered in New York City.
The Plaintiffs filed the instant action on March 30, 2020, naming
both Mediant and Donnelley as Defendants. On May 19, 2020, the
Plaintiffs filed their first amended complaint. On July 17, 2020,
Mediant moved to dismiss several counts of the first amended
complaint; Donnelley moved to dismiss that complaint in its
entirety.
On Aug. 5, 2020, the Plaintiffs filed the SAC. Each Defendant filed
a motion to dismiss the SAC pursuant to Fed. R. Civ. P. 12(b)(1),
asserting that the SAC did not adequately plead that the Plaintiffs
have standing to assert their claims against the Defendants. The
Court denied those motions. Following that decision, the Defendants
moved to dismiss the SAC under Fed. R. Civ. P. 12(b)(6) for failure
to state a claim. The Plaintiffs filed a consolidated opposition
in response to the Defendants' motions to dismiss. Each Defendant
filed a reply shortly thereafter.
II. Discussion
1. Motions to Dismiss
A. Partnership
Before turning to the Plaintiffs' substantive claims, Judge Woods
first addresses the Plaintiffs' allegation that Donnelley and
Mediant are in a legal partnership. A number of their theories of
liability are reliant on the existence of the alleged partnership.
Judge Woods finds that the Plaintiffs do not adequately plead the
existence of a legal partnership between Donnelley and Mediant. At
the outset, he observes that the SAC does not specifically plead
any of the factors of the existence of a partnership. Most notably,
the SAC lacks any allegation that Donnelley and Mediant agreed to
share profits and losses. While the Plaintiffs could have made
factual allegations regarding the partnership upon information and
belief, they have not done so. Considering the facts that have been
alleged in the SAC, Judge Woods cannot reasonably infer that the
Defendants entered a legal partnership.
B. Negligence
Judge Woods now turns to the Plaintiffs' substantive claims against
the Defendants. First, the Plaintiffs allege that Mediant was
negligent in implementing its data security systems and that
Donnelley was negligent for failing to supervise Mediant. Judge
Woods concludes that the Plaintiffs have plausibly alleged that
Mediant was negligent but that their negligence claim against
Donnelley is not pleaded adequately. He finds that the SAC has no
factual allegations linking Mediant's data security practices with
any other state. Because the alleged tortious conduct occurred in
New York, New York law applies to the Plaintiffs' negligence claims
against Mediant.
Similarly, Judge Woods concludes that Illinois has the greatest
interest in the Plaintiffs' negligence claims against Donnelley. He
finds that the Plaintiffs fail to plausible allege that Donnelley's
failure to oversee Mediant occurred in New York. They do not allege
that Donnelley took any action in New York. In fact, the
Plaintiffs' claims are premised on Donnelley's failure to act. Yet,
the SAC is devoid of any factual allegations connecting Donnelley's
omissions with New York. Without any support that these omissions
occurred in New York, Judge Woods concludes that Donnelley's
alleged tortious conduct occurred in Illinois, where it is
headquartered.
Second, the Defendants argue that the Plaintiffs' negligence claims
are barred by the economic loss doctrine under both Illinois and
New York law. Judge Woods concludes that New York's economic loss
doctrine does not bar the Plaintiffs' claims and declines to
address whether the doctrine bars their claims under Illinois law.
The Illinois Supreme Court and Court of Appeals have not addressed
whether the economic loss doctrine bars negligence claims in data
breach cases.
Third, Donnelley argues that Illinois law does not recognize a
common-law duty to protect personal information. Judge Woods opines
that the Plaintiffs fail to establish that Donnelley owed them a
duty to protect their personal information under Illinois law. They
do not challenge Cooney and instead argue that they do not seek the
creation of a "new duty," but rather that "a duty exists under
traditional negligence principles and the general duty analysis
applied by Illinois courts." Because the Plaintiffs offer no reason
to believe that the Illinois Supreme Court would disagree with the
holding in Cooney v. Osgood Mach., Inc., 81 N.Y.2d 66, 72 (1993),
that if conflicting conduct-regulating laws are at issue, the law
of the jurisdiction where the tort occurred will generally apply
because that jurisdiction has the greatest interest in regulating
behavior within its borders, Judge Woods dismisses the Plaintiffs'
negligence claim against Donnelley.
Fourth, Judge Woods holds that the Plaintiffs have adequately
pleaded that Mediant was negligent by failing to exercise
reasonable care in safeguarding their personal information. He
finds that (i) the Plaintiffs have adequately pleaded that Mediant
owed them a duty to exercise reasonable care safeguarding their
personal information; (ii) the SAC contains numerous specific
factual allegations detailing Mediant's awareness that it was a
target of cybersecurity threat which are sufficient to plausibly
allege that Mediant breached its duty; and (iii) the Plaintiffs
have adequately pleaded the elements of a negligence claim against
Mediant.
Finally, the Plaintiffs allege that Donnelley is vicariously liable
for Mediant's negligence because Donnelley is Mediant's partner.
Because their did not adequately plead the existence of a
partnership, the Plaintiffs' vicarious liability claim is
dismissed.
C. Negligence Per Se
Next, the Defendants move to dismiss the Plaintiffs' negligence per
se claims. The Plaintiffs allege that the Defendants were negligent
per se "by failing to use reasonable measures to protect the
Plaintiffs' and the Class Members' Personal Information and by
failing to comply with applicable industry standards" in violation
of Section 5 of the Federal Trade Commission Act (the "FTCA"). In
addition, the Plaintiffs allege that Donnelley was negligent per se
for violating its "duty to use reasonable security measures" under
the Gramm-Leach-Bliley Act (the "GLBA"). The Plaintiffs' negligence
per se claims are not viable under either Illinois or New York law
and are therefore dismissed.
Judge Woods holds that (i) because the Plaintiff does not allege
violation of a statute that imposes strict liability, he dismisses
the Plaintiffs' negligence per se claim against Donnelley; and (ii)
the Plaintiffs fail to plead a negligence per se claim.
Accordingly, the Plaintiffs' negligence per se claim against
Mediant is dismissed.
D. Breach of Contract/Third-Party Beneficiary
The Plaintiffs allege that they are third-party beneficiaries to
contracts that Donnelley and Mediant separately entered into with
"public companies and mutual funds to provide and perform proxy
services." They offer no factual allegations regarding where these
contracts were negotiated or the place of business of the specific
"public companies and mutual funds." Nor do they plead the
existence of relevant governing law provisions in those agreements.
Because the Defendants were parties to the contracts and the
contracts govern services to be provided by them, Judge Woods
concludes that the place of business of each Defendant is the
"center of gravity" of their respective contracts. Accordingly,
Illinois law applies to the third-party beneficiary claim against
Donnelley, and New York law applies to the third-party beneficiary
claim against Mediant.
Judge Woods also finds that the Plaintiffs fail to adequately
allege that Donnelley breached the contracts at issue. While the
Plaintiffs allege that Donnelley was required to protect the
personal information it received to provide proxy services, the SAC
does not contain any allegations that Donnelley even received the
Plaintiffs' information, much less that Donnelley failed to protect
it. Accordingly, the Plaintiffs' third-party beneficiary claim
against Donnelley is dismissed.
Judge Woods further finds that the Plaintiffs' third-party
beneficiary claim against Mediant also fails. The SAC fails to
identify the entities that Mediant allegedly contracted with and
provides no other factual enhancement regarding the formation of
the contracts. Merely stating the legal conclusion that Mediant
"entered contracts" with unspecified "public companies and mutual
funds" is insufficient to establish the existence of an enforceable
contract between Mediant and any other party. Because the
Plaintiffs do not sufficiently allege the existence of an
enforceable agreement, Judge Woods dismisses the Plaintiffs'
third-party beneficiary claim against Mediant.
E. Unjust Enrichment
Judge Woods opines that (i) New York law applies to the claim
against Mediant and Illinois law applies to the claim against
Donnelley; (ii) beecause the Plaintiffs expressly rely on the same
underlying wrongful conduct for their negligence and unjust
enrichment claims, their unjust enrichment claim against Mediant as
duplicative is dismissed; and (iii) because the Plaintiffs have not
alleged that Donnelley "unjustly retained a benefit to the the
Plaintiff's detriment," their unjust enrichment claim against
Donnelley is dimissed.
F. California Customer Records Act
Mr. Toretto fails to sufficiently plead a claim under the CRA
because he does not adequately allege that he is a customer of
Defendants as defined by the CRA, Judge Woods holds. He determines
that the SAC does not allege that Toretto provided his personal
information to Defendants for any reason, let alone for the purpose
of purchasing or leasing a product or obtaining a service from the
Defendants. Instead, the SAC alleges that Mediant obtained
Toretto's personal information while providing services to an
entity in which Toretto had invested.s a result, Toretto has not
adequately pleaded that he is a customer of the Defendants under
the CRA. Judge Woods therefore dismisses his claim for damages and
injunctive relief under the CRA.
G. California Unfair Competition Law
Mr. Toretto's claim under the UCL is not pleaded adequately. Judge
Woods holds that it is indisputable that the conduct which
allegedly gives rise to liability in the case occurred entirely
outside of California. Given the lack of a decision on this issue
by the Supreme Court of California, there is no binding precedent
governing whether the UCL applies to a claim by a plaintiff who is
a California resident and was allegedly injured in California by
out-of-state conduct, but who alleges no connection between the
defendant and California.
Given the clear application of the presumption against
extraterritoriality, Judge Woods does not find a compelling reason
to conclude that Toretto can bring a claim under the UCL merely
because he is a California resident who allegedly suffered injury
in California. Toretto's proposed application of the UCL would
cause it to operate impermissibly out of state. Accordingly,
Toretto's claim under the UCL is dismissed.
H. Florida Deceptive and Unfair Trade Practices Act
Plaintiff Braun's claim under FDUTPA is dismissed. Although FDUTPA
"does not limit its protection to acts occurring exclusively in
Florida," Braun must plausibly allege that at least some improper
acts occurred in Florida. Braun has not done so here, and therefore
his FDUPTA claim is dismissed.
I. Declaratory Judgment
Finally, the Defendants argue that if the Court concludes that the
Plaintiffs failed to state a substantive claim, the Plaintiffs'
claim for declaratory judgment also fails. Judge Woods holds that
the Plaintiffs have adequately pleaded a substantive claim against
Mediant. Thus, Mediant's motion to dismiss the declaratory judgment
claim is denied. But, because the Plaintiffs have not adequately
pleaded a substantive claim against Donnelley, the Plaintiffs'
declaratory judgment claim against Donnelley is dismissed.
J. Leave to Amend
Judge Woods grants the Plaintiffs leave to replead the dismissed
claims. While leave may be denied "for good reason, including
futility, bad faith, undue delay, or undue prejudice to the
opposing party," those circumstances do not apply in the case.
Particularly, given the choice-of-law issues, Judge Woods cannot
conclude that amendment would be futile for any of the Plaintiffs'
claims.
2. Motions to Seal
Finally, Judge Woods turns to the parties' motions to seal. The
Defendants filed a motion to seal the Supplier Agreement, which
they filed in connection with their motions to dismiss. In
connection with that request, Donnelley also sought to redact the
portions of its brief in support of its motion to dismiss that
contained "corresponding information relating to the confidential
terms of the Supplier Agreement." The Plaintiffs filed a motion to
redact portions of their opposition brief that "refer to and quote
from" the Supplier Agreement. Finally, Donnelley filed a motion to
redact portions of its reply brief containing "substantive
descriptions of the content of" the Supplier Agreement.
Judge Woods holds that (i) the Supplier Agreement, which the Court
has not considered in deciding the motions to dismiss, is not a
judicial document; (ii) the parties' briefs in connection with the
motions to dismiss are plainly judicial documents; and (iii)
because release of the information contained in the supplier
agreement could cause competitive harm to the Defendants, and
because the proposed redactions are narrowly tailored to protect
only this sensitive business information, the presumption of public
access is overcome as to the proposed redactions. For these
reasons, the parties' motions to seal are granted.
III. Conclusion
For the reasons he described, Judge Woods granted in part and
denied in part Mediant's motion to dismiss. He granted in full
Donnelley's motion to dismiss.
The Clerk of Court is directed to terminate the motions pending at
Dkt. Nos. 93, 94, 96, 106, 115.
A full-text copy of the Court's Feb. 4, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/3j4vmu7z from
Leagle.com.
DXC TECHNOLOGY: Court of Appeals Affirms Securities Suit Dismissal
------------------------------------------------------------------
DXC Technology company disclosed in its Form 10-Q Report on for the
quarterly period ended December 31, 2021, filed with the Securities
and Exchange Commission on February 3, 2022, that the United States
Court of Appeals affirmed the dismissal of a securities class
action lawsuit, thus denying its plaintiffs' appeal.
On December 27, 2018, a purported class action lawsuit was filed in
the United States District Court for the Eastern District of
Virginia against the company and two of its current officers. The
lawsuit asserts claims under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, as amended, and is premised on
allegedly false and/or misleading statements, and alleged
non-disclosure of material facts, regarding the company's business,
operations, prospects and performance during the proposed class
period of February 8, 2018 to November 6, 2018.
The company moved to dismiss the claims in their entirety, and on
June 2, 2020, the court granted the company's motion, dismissing
all claims and entering judgment in the company's favor. On July 1,
2020, the plaintiffs filed a notice of appeal to the U.S. Court of
Appeals for the Fourth Circuit. In September 2021, the Court of
Appeals heard oral argument on the appeal. In December 2021, the
Court of Appeals issued an order denying the plaintiffs' appeal and
affirming the District Court's dismissal of the lawsuit.
DXC Technology company provides computer processing and data
preparation services based in Virginia.
DXC TECHNOLOGY: State Court to Allow Additional Briefing
--------------------------------------------------------
DXC Technology company disclosed in its Form 10q Report for the
quarterly period ended December 31, 2021, filed with the Securities
and Exchange Commission on February 3, 2022, that following the
dismissal of a federal action in December 2021, the court in the
state action has entered an order permitting additional briefing on
the matter.
On August 20, 2019, a purported class action lawsuit was filed in
the Superior Court of the State of California, County of Santa
Clara, against the company, directors of the company, and a former
officer of the company, among other defendants. On September 16,
2019, a substantially similar purported class action lawsuit was
filed in the United States District Court for the Northern District
of California against the company, directors of the company, and a
former officer of the company, among other defendants. On November
8, 2019, a third purported class action lawsuit was filed in the
Superior Court of the State of California, County of San Mateo,
against the company, directors of the company, and a former officer
of the company, among other defendants.
The third lawsuit was voluntarily dismissed by the plaintiff and
re-filed in the Superior Court of the State of California, County
of Santa Clara on November 26, 2019, and thereafter was
consolidated with the earlier-filed action in the same court on
December 10, 2019.
The California lawsuits assert claims under Sections 11, 12 and 15
of the Securities Act of 1933, as amended, and are premised on
allegedly false and/or misleading statements, and alleged
non-disclosure of material facts, regarding the company's prospects
and expected performance.
Plaintiff in the federal action filed an amended complaint on
January 8, 2020. The putative class of plaintiffs in these cases
includes all persons who acquired shares of the company's common
stock pursuant to the offering documents filed with the Securities
and Exchange Commission in connection with the April 2017
transaction that formed DXC.
On July 15, 2020, the Superior Court of California, County of Santa
Clara, denied the company's motion to stay the state court case but
extended the company's deadline to seek dismissal of the state
action, until after a decision on the company's motion to dismiss
the federal action.
The company moved to dismiss the state action, and the court
continued the motion until after the outcome of the federal action.
DXC Technology company provides computer processing and data
preparation services based in Virginia.
ELANCO ANIMAL: Faces Suit Over Mislabeled Dogs' Parasite Protection
-------------------------------------------------------------------
Corrado Rizzi, writing for ClassAction.org, reports that a proposed
class action alleges thousands of dogs nationwide have experienced
severe allergic reactions or died due to two active ingredients in
Interceptor Plus-brand chewable broad-spectrum parasite protection
medicine.
The 17-page lawsuit says that although defendant Elanco Animal
Health Incorporated touts Interceptor Plus as safer and able to
offer pets more protection against deadly parasites than comparable
medicines, two of the product's active ingredients, milbemycin
oxime and praziquantel, are responsible for many allergic reactions
and deaths.
Nowhere on the Interceptor Plus label, or in advertisements or
product packaging, does Elanco disclose that the medicine can cause
severe reactions or death, the suit says, calling the lack of a
disclaimer an effort by the defendant to gain a competitive
advantage in the market.
"In other words, Elanco's 'profits over pets' strategy has impacted
pets and their owners throughout the United States and led to
thousands of severe adverse reactions and deaths for dogs that
would have been avoidable but for Defendant's conduct." Cited in
the case is a July 2021 Journal of Veterinary Medicine & Surgery
(JVMS) article that stated, based on information obtained from the
FDA, that thousands of pets are being harmed and dying due to
active ingredients in Interceptor Plus. In recent years, the active
ingredients have caused "172,00 adverse reactions and almost 5,000
dog deaths," the complaint alleges.
The same JVMS article relayed that the dangers posed by Interceptor
Plus have been known for years, and even apparently "improved"
formulations of the product have caused "moderate to marked
increases" in adverse pet reaction reports and deaths, the lawsuit
states.
"In other words, 'new and improved' versions of the Product have
been shown to be far deadlier than prior versions," the suit says.
"Nevertheless, Defendant continues to sell Interceptor Plus to
consumers and their four-legged companions."
The plaintiff, a Helena, Montana resident, claims that her
seven-year-old German shepherd began to feel unwell and showed
signs of a potential parasitic infection around Christmas 2021.
After consuming Interceptor Plus on December 27, the dog began
"showing significantly worse health," including weight loss, sudden
loss of appetite, lethargy, vomiting, and shallow and rapid
breathing, before dying on December 31, the lawsuit says.
The lawsuit looks to represent consumers in Montana, Iowa, Arizona,
Ohio, Indiana, Rhode Island, Delaware, Alabama, Louisiana, West
Virginia, New Mexico, Michigan, Texas, Arkansas and Oklahoma who
bought Interceptor Plus medicine during the applicable statute of
limitations period for each allegation in the complaint. [GN]
ELECTRONIC ARTS: Battlefield 2042 Refund Petition Hit Milestone
---------------------------------------------------------------
The Loadout reports that the Battlefield 2042 petition has now been
signed by more than 200,000 people, just five days on from hitting
the milestone of 150,000 signatures.
A petition to refund Battlefield 2042 players due to the state of
the game has become one of the top-signed petitions on Change.org
this month after a more than 200,000 people signed it. The amount
of signatures could signal the start of legal proceedings being
brought against EA to help secure those refunds, if the petition's
description is to be believed.
"EA's release of Battlefield 2042 was a mockery of every customer
who purchased this video game for $70 due to EA's false
advertising," the petition reads. "Battlefield 2042 has cost
consumers millions of dollars in damages and upset thousands of
customers worldwide."
Tucked further down in the petition is an interesting statement
that might just hint that things could potentially take a more
serious turn. "Suppose this petition receives 50K signatures or
more. In that case, one of the best class-action lawsuit lawyers in
the country is willing to take our case against EA."
While it is unclear whether lawyers really are lined up and ready
to take on the monolith that is EA, disgruntlement of this scale
often attracts legal professionals who want to take on big consumer
cases. What is clear though is that Battlefield fans are not happy
and the pot is boiling over. "EA and DICE sold us all a half-baked
broken game. This is not what we expected as consumers," says Ted
Barrera, one of the individuals who signed the petition.
The petition has become so popular on Change.org that the platform
itself has acknowledged it, highlighting its widespread coverage in
the press and encouraging further action.
"Keep signing and sharing, and know that your advocacy has led to a
global conversation about consumer rights in the gaming industry,"
the platform says in an update post on the petition.
These signature milestones come after the Season One update for
Battlefield 2042 was delayed again, with only skins offered to
those who bought the expensive Gold and Deluxe versions of the
large-scale first-person shooter. Things have become so bad that
2018's Battlefield 5 Steam player count was found to be six times
higher than Battlefield 2042's -- a game that was only released in
November of last year. What's even worse is that some regions have
already seen a mass exodus of players, leaving hardly any servers
to even play on.
Since launching to mediocre reviews, Battlefield 2042 has been on
the receiving end of criticism for a number of issues, including
failing to provide basic legacy features that players want, like a
more detailed scoreboard or in-game voice communication. With how
rapidly the petition is gaining momentum, expect the number of
signatures to climb even higher than this latest milestone. [GN]
EVOLUTION WELL: McAfee & Taft Attorney Discusses Labor Class Action
-------------------------------------------------------------------
Charles Plumb, Esq., of McAfee & Taft, in an article for JDSupra,
reports that whether to pay any travel time for employees under the
Fair Labor Standards Act (FLSA) can be complicated. Employees who
believe they should be compensated for that time often challenge
non-payment. A dispute over travel time with one employee can
sometimes even blossom into a class action lawsuit involving a
large number of employees and former employees. An oilfield
employer recently found itself battling exactly that sort of
expanding lawsuit.
Housing, worksites, and travel
Evolution Well Services Operating, LLC provides a variety of
oilfield services to the fracturing industry. Some employees are
assigned to 14-day rotations while working at remote well sites.
Prior to beginning each rotation, employees traveled from their
homes to housing provided by Evolution. After completing their
14-day rotations, the employees left the employer-provided housing
and returned home.
During these rotations, Evolution frequently held morning meetings
with their workers on-site at the employer-provided housing before
the employees left for the worksite. The meetings, which generally
lasted 15 to 20 minutes, included discussions with supervisors,
temperature checks, and occasionally drug testing.
Each day, employees traveled between the employer-provided housing
to remote worksites. On average this commute was a three-hour
roundtrip. Employees claimed they performed some work tasks during
their daily commute.
The FLSA class action
Evolution employees and former employees are currently pursuing a
class action lawsuit against the company, claiming they should have
been paid for:
Travel time to and from their homes to the employer-provided
housing at the beginning and at the end of their 14-day rotations;
The 15-20 minutes spent attending each morning meeting; and
Travel time (three hours roundtrip) spent each day between the
employer-provided housing and a remote worksite.
Although it remains to be seen whether the employees will be
successful, at this point the court has conditionally approved them
to move forward with their class action lawsuit against Evolution.
Under the FLSA, whether an employer is required to pay an employee
for travel time depends on specific facts, such as:
Whether travel is from home to work;
Whether travel is to different worksites during the day;
Whether travel is to a different city and returning the same day;
Whether travel requires an overnight stay;
Whether travel is during regular work hours; and
Whether the employee performs work while traveling.
The Wage and Hour Division's Fact Sheet #22 provides a helpful
summary of when travel time is compensable:
https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs22.pdf
Check your travel compensation practices
Under the FLSA, an employer's obligation to pay employees for some
types of travel time, but not for others, can be confusing.
Increasingly, plaintiffs' attorneys are targeting employers with
potential class action lawsuits aimed at challenging a company's
practices. Before that happens to you, audit your own travel pay
practices. Make sure you are consistent on when travel time is paid
and that your travel pay practices comply with the FLSA's
requirements.
Copley et al v. Evolution Well Services Operating, LLC, Case No.
2:20-CV-1442-CCW (W.D. Pa. 2022) [GN]
FAMILY DOLLAR: Illinois Court Narrows Claims in Rudy Class Suit
---------------------------------------------------------------
In the case, HEATHER RUDY, individually and on behalf of all others
similarly situated, Plaintiff v. FAMILY DOLLAR STORES, INC.,
Defendant, Case No. 21-CV-3575 (N.D. Ill.), Judge Marvin E. Aspen
of the U.S. District Court for the Northern District of Illinois,
Eastern Division, grants in part and denies in part Family Dollar's
motion to dismiss.
The Defendant moved to dismiss Rudy's claims under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon which
relief can be granted.
I. Background
The putative class action concerns the alleged deceptive labeling
of snack almonds. Plaintiff Rudy claims that Defendant Family
Dollar misled her and other consumers by marketing its Eatz brand
Smoked Almonds (the "Product") as "smoked," though they were not
roasted over an open fire. Rudy brings claims for violation of the
Illinois Consumer Fraud and Deceptive Business Practices Act
("ICFA"), 815 ILCS 505/1 et seq.; breaches of express warranty,
implied warranty of merchantability, and the Magnuson-Moss Warranty
Act, 15 U.S.C. Sections 2301 et seq.; negligent misrepresentation;
fraud; and unjust enrichment. She asserts that jurisdiction is
proper under the Class Action Fairness Act of 2005 ("CAFA"), 28
U.S.C. Section 1332(d)(2).
Ms. Rudy purchased the Product "on one or more occasions within the
statute of limitations for each cause of action alleged, from
Family Dollar's stores, including the location at 1106 Washington
St, Waukegan, IL 60085, between April and May 2021, among other
times." Rudy does not specify how much she paid for the Product but
alleges that Family Dollar sells the Product for a "price premium
compared to other similar products, no less than $1 for 7 oz
(198g)."
Before Rudy purchased the Product, she observed that the front
label read "Smoked Almonds," that the package had "red coloring,"
and that "there was no mention of added smoke flavor." An image of
the Product's front label is found below. Based on the Product's
front label, Rudy anticipated that the Product had been smoked over
an open fire. However, the Product was not smoked over an open
fire; it was flavored using natural smoke flavor. If Rudy had known
that the Product had not been smoked over an open fire, she would
not have purchased the Product or would have paid a lower price for
it. She claims that she would purchase the Product again if she
could do so "with the assurance that the Product's representations
are consistent with its composition."
Ms. Rudy brings the putative class action on behalf of herself and
"Illinois, Texas, Utah, New Mexico, Indiana, West Virginia, and
North Carolina residents who purchased the Product during the
statutes of limitations for each cause of action alleged."
Family Dollar has moved to dismiss Rudy's claims under Federal Rule
of Civil Procedure 12(b)(6) for failure to state a claim upon which
relief can be granted.
II. Analysis
A. ICFA
Family Dollar argues that Rudy has failed to plead two elements of
her ICFA cause of action: (1) a deceptive or unfair practice and
(2) damages. Judge Aspen denies Family Dollar's motion to dismiss
as to Rudy's ICFA claim.
1. Deceptive Practice
Ms. Rudy's ICFA claim challenges a "deceptive," as opposed to an
"unfair," practice. Family Dollar argues that Rudy has not pled a
deceptive or unfair trade practice because no reasonable consumer
would assume that the Product was roasted over an open fire, as
opposed to treated with liquid smoke. According to Family Dollar,
the Product is priced too cheaply for a reasonable consumer to
believe that it was roasted over an open fire. Additionally, the
ingredient list discloses that the Product is roasted in oil and
contains natural smoke flavor.
Judge Aspen opines that although the term "smoked" may be used to
describe a flavor, as Family Dollar suggests, it can also be used
to describe a process. And nothing on the front of the Product's
label would suggest to consumers that the term "smoked" refers to
the Product's flavoring, as opposed to the process by which the
Product was produced. For instance, unlike competitor products, the
Product's front label does not contain the word "flavored."
The price of the product is not so low as to render Rudy's
interpretation unreasonable as a matter of law either. Rudy alleged
that Family Dollar sold the Product at a "premium" price of "no
less than $1 for 7 oz (198 g)" of almonds. To his knowledge, Judge
Aspen opines that there is nothing so costly about the process of
roasting almonds over an open fire that a reasonable consumer could
not believe that the price Rudy paid is too low for the Product to
be smoked over fire.
As for Family Dollar's "ingredient list" argument, numerous courts
have rejected the idea that back-label ingredient lists can
immunize defendants from suit for ambiguous front labels. Many
reasonable consumers do not read every back label before placing
groceries in their carts." Rudy does not allege that she read the
back label before purchasing the Product, and Judge Aspen cannot
say, as a matter of law, that it was unreasonable for her not to do
so. Rudy has sufficiently pled a deceptive trade practice.
2. Damages
Family Dollar argues that Rudy cannot show that she was damaged
under the ICFA because she was not deprived of the benefit of her
bargain. According to Family Dollar, it is implausible that Rudy
paid a premium rate for the Product based on the allegations in her
Complaint. Further, it claims that Rudy should not be able to plead
an injury where she has an alternate remedy -- returning the
almonds for a full refund. In response, Rudy argues that she has
sufficiently pled injury because she has alleged that she and
members of the putative class were overcharged for the Product.
Judge Aspen opines that numerous courts have permitted ICFA claims
to proceed where, as in the present case, a plaintiff claimed that
defendant misled her as to the nature of the product she was
buying, and she either paid more for the product than she otherwise
would have or would not have purchased the product had she known
the truth. He sees no reason to deviate from that approach. Rudy's
theory is not so implausible as to merit dismissal at this stage.
Likewise, Judge Aspen rejects the argument that Rudy cannot plead
an injury under the ICFA because she could have obtained a refund.
Rudy does not address this argument in her Opposition. He similarly
concludes that Rudy may pursue her ICFA claim notwithstanding
Family Dollar's refund policy. Dismissal would not further the
purposes of ICFA, and Rudy is seeking several forms of relief, such
as statutory damages, which would not be satisfied with a refund.
B. Breach of Express and Implied Warranties
In Family Dollar's view, Rudy's claims for breach of express and
implied warranties fail because she has not adequately pled the
pre-suit notice required for such claims. It also argues that
Rudy's claim for breach of implied warranty cannot survive because
Rudy has not alleged that the Product was not fit for human
consumption. Rudy responds that she met the pre-suit notice
requirement because she notified Family Dollar of the breach
through filing the suit. As for Family Dollar's second argument,
Rudy contends that the Product was "'not merchantable because it
was not fit to pass in the trade as advertised'" since Family
Dollar "identified the Product as 'Smoked Almonds,' which gives
'the false impression that all the smoke taste was due to being
smoked,' when none of its taste was a result of smoking."
Judge Aspen need not reach Family Dollar's "human consumption"
argument because we agree with its pre-suit notice argument. The
notice requirement is intended to "encourage pre-suit settlement
negotiations." That purpose would be eviscerated if a party could
satisfy the notice requirement by filing suit, as Rudy contends.
The case cited by Rudy, In re Bridgestone/Firestone, Inc. Tires
Products, 155 F.Supp.2d 1069 (S.D. Ind. 2001), does not persuade us
to reach a different result. In that case, the Southern District of
Indiana applied the laws of Tennessee and Michigan, not Illinois
law, to plaintiffs' breach of warranty claims.
Nor does Rudy assert that she qualifies for an exception to the
pre-suit notice requirement. Because Rudy did not notify Family
Dollar of the alleged breach before filing the lawsuit and has not
offered a cognizable excuse for that failure, her claims for beach
of express and implied warranties are dismissed.
C. Magnuson-Moss Warranty Act
Family Dollar argues that its product description does not
constitute a warranty under the Magnuson-Moss Act and, therefore,
Rudy is not entitled to relief under that Act. Rudy disputes this
conclusion, arguing that the statement "Smoked Almonds" is an
"affirmation of fact" that the Product will "have an appreciable
amount of its smoked taste from having undergone a smoking
process." Rudy contends that the liquid smoke flavor does not
impart the same taste as smoke from an open fire; accordingly, the
Product is not "defect free" because it lacks "the delicate balance
of phenolic compounds." In other words, Rudy claims that the
representations on the Product's packaging satisfy 15 U.S.C.
Section 2301(6)(A).
Judge Aspen agrees with Family Dollar. He opines that the phrase
"Smoked Almonds" is a product description that does not warrant to
consumers that the Product is defect-free or will perform at a
specified level over a specific time. Accordingly, this phrase does
not constitute a "written warranty" under the Magnuson-Moss
Warranty Act. Rudy's claim under this Act is dismissed.
D. Negligent Misrepresentation
Family Dollar argues that Rudy's claim for negligent
misrepresentation is barred by the economic loss doctrine. The
economic loss doctrine -- also known as the "Moorman doctrine" --
was first set out by the Illinois Supreme Court in Moorman
Manufacturing Co. v. National Tank Co., 91 Ill.2d 69, 88, 435
N.E.2d 443, 451-52 (Ill. 1982). It "'denies a remedy in tort to a
party whose complaint is rooted in disappointed contractual or
commercial expectations.'" Rudy argues that her claim for negligent
misrepresentation satisfies an exception to the economic loss
doctrine.
Family Dollar has the better argument, Judge Aspen holds. The
authority that Rudy cites in support of her position, Congregation
of the Passion, Holy Cross Province v. Touche Ross & Co., 159
Ill.2d 137, 162, 636 N.E.2d 503, 514 (Ill. 1994), concerns services
offered by skilled professional accountants. That authority does
not control in the present case. Family Dollar "manufactures,
labels, markets and sells" goods -- it is not a learned
intermediary offering professional advice to its customers.
Family Dollar may have provided information to customers that was
ancillary to the sale of its products, but Rudy has not pled that
Family Dollar was in the business of providing information in the
manner intended by the exception to the economic loss doctrine.
Accordingly, Rudy's claim for negligent misrepresentation is
dismissed.
E. Fraud
Family Dollar contends that Rudy's allegations in support of
scienter are insufficient because they are conclusory and
non-factual. Rudy does not address this argument directly, arguing
only that she has satisfied the pleading requirements for fraud set
forth in Federal Rule of Civil Procedure 9(b) because she alleged
the "who, what, where, when, and how" of the fraud. However, in
Rudy's Complaint, she alleges that Family Dollar's fraudulent
intent "is evinced by its knowledge that the Product was not
consistent with its representations." Because Rudy's allegations in
support of fraudulent intent are conclusory, they do not meet Rule
9(b)'s pleading standard. For this reason, Judge Aspen dismisses
Rudy's common-law fraud claim.
F. Unjust Enrichment
Ms. Rudy alleges that Family Dollar was unjustly enriched when it
"obtained benefits and monies because the Product was not
represented as expected, to the detriment and impoverishment of the
Plaintiff and the class members, who seek restitution and
disgorgement of inequitably obtained profits." Family Dollar
insists that Rudy's unjust enrichment claim should be dismissed
because it is duplicative of other claims and because Rudy has an
adequate remedy at law. In response, Rudy claims that it would be
premature to dismiss her unjust enrichment claim because Federal
Rule of Civil Procedure 8(d)(2) allows parties to plead alternative
claims. If the Court concludes that Rudy cannot prove her ICFA or
common law claims, Rudy continues, then she might be able to
prevail on her claim for unjust enrichment.
Ms. Rudy is correct that she may plead her unjust enrichment claim
in the alternative, Judge Aspen finds. He says, "under federal
pleading standards, a plaintiff may plead claims in the
alternative, even if the claims are contradictory." Accordingly, he
declines to dismiss her unjust enrichment claim at this time.
G. Injunctive Relief
Family Dollar asserts that Rudy does not have Article III standing
to pursue injunctive relief because she does not face a real or
immediate threat of future harm. Rudy responds that she has
standing to seek injunctive relief because she has alleged that she
intends to purchase the Product again as soon as she can be sure
that the "Product's representations are consistent with its
composition." She further contends that her allegations of
continuing harm are not based on conjecture because Family Dollar's
unlawful practices continue.
Ms. Rudy's request for injunctive relief is based solely on the
speculation that because Family Dollar harmed her in the past,
Family Dollar is likely to harm her in the future. However, "past
exposure to illegal conduct does not in itself show a present case
or controversy regarding injunctive relief if unaccompanied by any
continuing, present adverse effects." Accordingly, Rudy is not
entitled to pursue injunctive relief.
III. Conclusion
For the reasons he set forth, Judge Aspen grants Family Dollar's
Motion to Dismiss as to Rudy's claims for breach of expressed and
implied warranties and the Magnuson-Moss Warranty Act, negligent
misrepresentation, and fraud. He also finds that Rudy is not
entitled to pursue injunctive relief. We deny Family Dollar's
motion as to Rudy's IFCA and unjust enrichment claims. Rudy has
until Feb. 25, 2022, to amend her Complaint if she can do so in
accordance with this Opinion and Federal Rule of Civil Procedure
11. It is so ordered.
A full-text copy of the Court's Feb. 4, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/5n7scf9w from
Leagle.com.
FCA US: Chrysler Pentastar Problems Cause Class Action Lawsuit
--------------------------------------------------------------
Chrysler Pentastar 3.6L problems have caused a class action lawsuit
which alleges the engines tick, misfire, surge and eventually
fail.
The Chrysler Pentastar class action alleges the 3.6L V6 engines are
defective in these Chrysler, Dodge, Jeep and Ram vehicles.
2014-2016 Chrysler Town & Country
2014-2020 Dodge Challenger
2014-2020 Dodge Charger
2014-2020 Dodge Durango
2014-2020 Dodge Grand Caravan
2014-2015 Jeep Grand Cherokee
2014-2020 Chrysler 300
2014-2020 Jeep Wrangler
2014-2020 Chrysler 200
2014-2020 Ram 1500
2016-2020 Chrysler Pacifica
The Chrysler Pentastar class action was filed by California
plaintiff Etienne Maugain (2015 Jeep Grand Cherokee), Florida
plaintiff Louise Shumate (2015 Jeep Wrangler), Texas plaintiff
Denise Hunter (2015 Jeep Grand Cherokee) and New Hampshire
plaintiff Harry Reichlen (2015 Jeep Grand Cherokee).
Chrysler Pentastar Class Action Lawsuit: Metal Particles in the
Oil
The plaintiffs claim multiple Pentastar engine components are
defective, including the rocker arms, lifters and engine control
module software controlling the timing and function of the lifters.
Those components allegedly fail prematurely and cause problems with
the opening and closing of the valves.
The Pentastar engines allegedly hesitate, lose power, tick and
cause the vehicles to buck before the 3.6-liter engines bite the
dust.
The ticking and other engine problems are allegedly caused by metal
particles and debris from the failed rocker arms and other
components contaminating the engine oil and circulating throughout
the engines.
The Chrysler Pentastar class action lawsuit says the contaminated
oil will damage the engine to the point of stalling and complete
failure.
According to the Pentastar lawsuit, Chrysler owners are stuck
because the automaker uses defective engine parts to replace
equally defective parts, causing repeated repairs and thousands of
dollars.
"Simply replacing rocker arms and associated valve train components
can cost from $1,500 to $4,500, while it can cost more than $6,000
for a new engine." - Chrysler Pentastar class action lawsuit
The lawsuit also alleges Chrysler has concealed the Pentastar 3.6L
engine problems so customers will continue to pay for repairs and
replacements.
The class action further asserts Chrysler denies warranty coverage
for the Pentastar engines even when the vehicles are still under
their warranties.
Fiat Chrysler has allegedly known about the Pentastar 3.6L problems
since 2013 when engineers allegedly determined the rockers arms
failed because of the rocker arm spring loaded lift pins.
The Chrysler Pentastar class action was filed in the U.S. District
Court for the District of Delaware: Maugain, et al., v. FCA US
LLC.
The plaintiffs are represented by Berger Montague PC, Capstone Law
APC, and Gordon & Partners, P.A. [GN]
FENNEC PHARMACEUTICALS: Pomerantz LLP Reminds of April 11 Deadline
------------------------------------------------------------------
Pomerantz LLP on Feb. 9 disclosed that a class action lawsuit has
been filed against Fennec Pharmaceuticals Inc. ("Fennec" or the
"Company") (NASDAQ: FENC) and certain of its officers. The class
action, filed in the United States District Court for the Middle
District of North Carolina, and docketed under 22-cv-00115, is on
behalf of a class consisting of all persons and entities other than
Defendants that purchased or otherwise acquired Fennec securities
between May 28, 2021 and November 26, 2021, both dates inclusive
(the "Class Period"), seeking to recover damages caused by
Defendants' violations of the federal securities laws and to pursue
remedies under Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated
thereunder, against the Company and certain of its top officials.
If you are a shareholder who purchased or otherwise acquired Fennec
securities during the Class Period, you have until April 11, 2022
to ask the Court to appoint you as Lead Plaintiff for the class. A
copy of the Complaint can be obtained at www.pomerantzlaw.com. To
discuss this action, contact Robert S. Willoughby at
newaction@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free,
Ext. 7980. Those who inquire by e-mail are encouraged to include
their mailing address, telephone number, and the number of shares
purchased.
Fennec is a biopharmaceutical company that develops product
candidates for use in the treatment of cancer in the United States.
The Company's lead product candidate is PEDMARK, a formulation of
sodium thiosulfate, which has completed a Phase III clinical trial
for the prevention of cisplatin induced hearing loss, or
ototoxicity, in children.
In December 2018, Fennec initiated a rolling New Drug Application
("NDA") with the U.S. Food and Drug Administration ("FDA") for
PEDMARK for the prevention of ototoxicity induced by cisplatin
chemotherapy in patients 1 month to less than 18 years of age with
localized, non-metastatic, solid tumors, which was completed in
February 2020 (the "Initial Pedmark NDA").
In August 2020, Fennec announced that it had received a Complete
Response Letter ("CRL") from the FDA for the Initial Pedmark NDA
because of deficiencies identified at the manufacturing facility of
the Company's drug product manufacturer.
Then, in May 2021, the Company announced that it had resubmitted
the NDA for PEDMARK with the FDA following receipt of final minutes
from a Type A meeting with the FDA (the "Resubmitted Pedmark
NDA").
The complaint alleges that, throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operations, and prospects. Specifically,
Defendants made false and/or misleading statements and/or failed to
disclose that: (i) Fennec had not successfully remediated, and
overstated its efforts to remediate, issues with the manufacturing
facility of its drug product manufacturer for PEDMARK; (ii) as a
result, the FDA was unlikely to approve the Resubmitted Pedmark
NDA; (iii) accordingly, the regulatory and commercial prospects of
the Resubmitted Pedmark NDA were overstated; and (iv) as a result,
the Company's public statements were materially false and
misleading at all relevant times.
On November 29, 2021, during pre-market hours, Fennec issued a
press release "announc[ing] that it expects to receive a [CRL]
after the PDUFA [Prescription Drug User Fee Act] target action date
of November 27, 2021 from the [FDA] regarding its [Resubmitted
Pedmark NDA]." Specifically, Fennec advised investors that "[t]he
FDA has indicated that, following a recent completion of a
pre-approval inspection of the manufacturing facility of our drug
product manufacturer, deficiencies have been identified[,]" and
that "[o]nce the official CRL is received, the Company plans to
request a Type A meeting to discuss the deficiencies and steps
required for the resubmission of the NDA for PEDMARKTM."
On this news, Fennec's common share price fell $4.86 per
share, or 50.41%, to close at $4.78 per share on November 29,
2021.
Pomerantz LLP, with offices in New York, Chicago, Los Angeles,
Paris, and Tel Aviv, is acknowledged as one of the premier firms in
the areas of corporate, securities, and antitrust class litigation.
Founded by the late Abraham L. Pomerantz, known as the dean of the
class action bar, Pomerantz pioneered the field of securities class
actions. Today, more than 85 years later, Pomerantz continues in
the tradition he established, fighting for the rights of the
victims of securities fraud, breaches of fiduciary duty, and
corporate misconduct. The Firm has recovered numerous
multimillion-dollar damages awards on behalf of class members. See
www.pomlaw.com.
CONTACT:
Robert S. Willoughby
Pomerantz LLP
rswilloughby@pomlaw.com
888-476-6529 ext. 7980 [GN]
FLINT, MI: $39.6M CBA & $7.2M in Expenses Awarded in Water Cases
----------------------------------------------------------------
In the case, In re Flint Water Cases. This Opinion and Order
Relates To ALL CASES, Case 5:16-cv-10444-JEL-EAS (E.D. Mich.),
Judge Judith E. Levy of the U.S. District Court for the Eastern
District of Michigan, Southern Division, issued an Opinion and
Order granting in part and denying in part the Plaintiffs' Motion
for an Award of Attorney Fees and Reimbursement of Expenses.
Judge Levy granted an expense award in the amount of $7,147,802.36
and a Common Benefit Award (CBA) in the amount of 39,641,625, which
is 6.33% of the total settlement amount.
I. Background
The Plaintiffs' Counsel initiated the Flint Water Cases against the
Settling Defendants without any guarantee of recovery for their
clients or compensation for their work. Many of the lawsuits were
filed over five years ago and have been heavily litigated since
then at great cost to the Plaintiffs' Counsel.
Before the Court is the Plaintiffs' Fee and Expense Motion made in
connection with the partial settlement in the Flint Water
litigation. The Movants' request for fees and expenses arises from
the fact that the Co-Liaison Counsel for the Individual Plaintiffs
and the Co-Lead Class Counsel for the Settlement Class (as well as
the Settlement Subclass Counsel, the law firms that have worked
with and under the supervision of the Co-Lead Class Counsel, and
the Plaintiffs' Executive Committee) successfully negotiated with
the Settling Defendants and achieved a $626.25 million partial
settlement in the Flint Water Cases. The Court granted final
approval to the partial settlement on Nov. 10, 2021.
Thus far, the Plaintiffs' Counsel have not been paid for their work
or reimbursed for out-of-pocket expenses in the Flint Water Cases
at all. Determining the appropriate fee award is a challenging
task. As is common in settlements, the Plaintiffs' Counsel's fees
and costs will be deducted from the $626.25 million total
settlement, and accordingly, every dollar awarded to the attorneys
is a dollar less for the Claimants. Because of this, the Court must
balance society's strong interest in paying lawyers for their work
and encouraging counsel to accept similar engagements in the future
with the important interest in maximizing the Claimants' Monetary
Awards. These are just some of the many factors the Court must
weigh in making the present decision.
In the Fee and Expense Motion, the Movants state that the Class
Counsel and the Co-Liaison Counsel performed a total of 182,571
hours of common benefit work through Feb. 15, 2021. And certainly,
much more work has been performed between then and now. For
example, at the end of the day on March 8, 2021 (the date the Fee
and Expense Motion was filed), there were 1458 docket entries in
the main consolidated Flint Water Case, No. 5:16-cv-10444. Today,
there are 2104 docket entries. This increase in the number of
docket entries in a relatively short period of time illustrates the
high volume and fast pace of the litigation.
The structure of the proposal set forth in the Fee and Expense
Motion is consistent with the fair and equitable design of the
underlying settlement. The Movants have proposed an arrangement
whereby certain amounts would be deducted from the $626.25 million
settlement in a manner that provides for parity in recovery among
similarly situated Claimants.
Article V of the Amended Settlement Agreement ("ASA") indicates
that the funds available for payment to Claimants is determined by
deducting attorney fees, attorney expenses, and certain
administrative fees from the settlement amount. The result is that
every Claimant will effectively pay for the Plaintiffs' Counsel's
work in a manner that provides for parity in recovery among
similarly situated Claimants regardless of whether the Claimant is
a class member or an individual who is not a member of a class; a
Minor or an Adult; an individual person or a business or property
owner; and whether the individual is represented by counsel or not.
This aspect of the proposal is simple, uniform, and well-designed
to compensate the Plaintiffs' Counsel for their work while also
retaining parity, or equality, among Claimants who qualify for the
same settlement Compensation Grid category.
The Movants' proposal for compensating the Plaintiffs' Counsel who
have worked on the litigation and settlement is intricate and
nuanced. The Movants' proposal includes several components. They
are: (1) A Common Benefit Award (CBA) request; (2) A request for a
capped assessment and percentage of the fund awarded to Class
Counsel; (3) A request for a capped contingency fee component
awarded to IRC; and (4) An expense reimbursement request.
For the CBA request, the Movants ask that the Court awards the
Plaintiffs' Leadership Group ("PLG") a CBA of 6.33% from the
$626.25 million settlement amount. Second, theys request that the
Court awards PLG a 17% CBA, which would be computed based on17% of
the aggregate value of the Monetary Awards for Claimants who
retained counsel on or after July 16, 2020. Third, the Movants
request that the Court awards PLG a 17% CBA, which would be
computed based on 17% of the aggregate value of the Monetary Awards
for Minor Claimants who were assisted by counsel on or after July
16, 2020. And fourth, for any unrepresented Minor Claimant who does
not retain their own counsel, the Movants request a 27% CBA
consisting of 27% of the aggregate value of those Minors' Monetary
Awards.
For the capped assessment request, the Fee and Expense Motion
contemplates that the Class Counsel's fees would be paid from a
capped assessment of the gross value of certain types of claims.
Specifically, the Class Counsel seek 27% of the gross value of the
following: a. all claims resolved through the Adult Exposure,
Property Damage, and Business Economic Loss Subclasses; and b. the
Programmatic Relief Fund. Additionally, the Class Counsel seek 27%
of the gross value of all claims involving a Minor who entered into
a retainer with the Class Counsel before July 16, 2020. The Class
Counsel further seek a fee of 10% of the gross value of awards to
any Minor they assist or advocate for, whether retained or
unretained, after July 16, 2020.
For the capped contingency fee request, the Movants propose that
the Court imposes a capped contingency fee for all IRC.
Specifically, they seek the following: a. 27% of the gross value --
regardless of the amount set forth in the retainer agreement -- of
the Monetary Awards received by individuals who entered into
retainer agreements with IRC before July 16, 2020; b. 10% of the
gross value -- regardless of the amount set forth in the retainer
agreement -- of the Monetary Awards received by individuals who
entered into retainer agreements with counsel on or after July 16,
2020; and c. 10% of the gross value of claims where counsel
assisted and advocated for a Minor in submitting a claim, whether
retained or unretained, if the assistance took place after July 16,
2020.
For other principles applicable to the Fee and Expense Motion,
under the Movants' proposal, the 27% portion of the fee award would
be deducted from the $626.25 million settlement amount before
Claimants receive their Monetary Awards; however, attorneys are not
compensated before Claimants receive their awards. The Claims
Administrator would then distribute the award among firms in the
manner set forth in Article XI of the ASA as claims are paid out.
Additionally, the counsel requests 27% of the value of the
Programmatic Relief Fund for the benefit of the Class Counsel
only.
The Fee and Expense Motion requests reimbursement for costs and
expenses expended in connection with the litigation. The Movants
indicate that they seek $7,158,987.33. They explain that a
significant amount of these expenses are due to the cost of
retaining qualified experts in a variety of fields, including
"civil and environmental engineering, chemical engineering, urban
planning, human health, economics, and ethics." The declarations of
the Co-Lead Class Counsel and the Co-Liaison Counsel provide more
detail regarding the components of this request.
The deadline for filing objections to the ASA, including the
request for attorney fees, was March 29, 2021. On that date, the
Hall Objectors filed objections to the Fee and Expense Motion.
Additionally, approximately 81 Unrepresented Objectors timely filed
objections.
On April 5, 2021, Plaintiff Brown filed a response to the Fee and
Expense Motion. On April 6, 2021, the Chapman/Lowery Objectors
filed objections to the ASA, which included objections to the Fee
and Expense Motion although these two filings were docketed after
the deadline for filing objections, the Court indicated at the July
15, 2021 hearing that it would address these objectors' arguments.
In addition, on April 9, 2021, the Hall Objectors filed a Motion to
Review and Respond to Hourly Billing and Costs. Then, on April 24,
2021, the Chapman/Lowery Objectors filed a Motion to Review and
Respond to Hourly Billing and Costs.
The Plaintiffs responded to all objections and to the Discovery
Motions through their motion for final approval and memorandum in
support and through their supplement to their motion for attorney
fees and costs.
Judge Levy held a three-day fairness hearing on the motion for
final approval, which included a full day on July 15, 2021 devoted
to the Fee and Expense Motion. At the beginning of the hearing on
July 15, 2021, Special Master Greenspan presented the Court with an
oral report regarding her work conducted pursuant to the Time and
Expense Order, and on the Fee and Expense Motion.
II. Analysis
A. Expense Award
At the time of filing the Fee and Expense Motion, the Movants
requested reimbursement of $7,158,758.23 in expenses.
Judge Levy addresses the expense award first. She has conducted its
own review of the underlying data provided by the Special Master.
It concludes that the expenses, as reconciled by the Special
Master, are reasonable and well-documented. There are no objections
to the expense request. Accordingly, Judge Levy awards the Movants
reimbursement for the expenses, in the amount of $7,147,802.36
B. Fee Award Summary
Judge Levy grants in part and denies in part the attorney fee
request. She grants a CBA award of 6.33% of the $626.25 million
settlement amount. She adopts the basic structure of the fee
proposal with the following changes: The aggregate amount that may
be paid for fees and CBA (after the 6.33% CBA) will be 25% (reduced
from 27%). This percentage will be paid either in the form of fees
or fees plus CBA.
As to fees, the fees will be capped at 25% for represented
Plaintiffs who retained counsel before Aug. 20, 2020,22 and capped
at 8% for counsel retained after that date. The counsel who assist
Minors with claims after Aug. 20, 2020 are entitled to a fee of 8%.
The class fees will be set at 25% for the class portion of the
settlement and at 10% for the Programmatic Relief component of the
settlement.
As to the CBA, Judge Levy awards a CBA of 6.33% of the $626.25
million settlement fund; a CBA of 17% of the value23 of the amount
awarded to the Claimants who retained counsel after Aug 20, 2020; a
CBA of 17% of the value of the amount awarded to any Minor Claimant
who was assisted by the counsel after Aug. 20, 2020; and a CBA of
25% of the value of the amount awarded to any unrepresented Minor
Claimant who does not retain their own counsel. The CBA awards are
to be divided between the Co-Liaison Counsel and the Co-Lead Class
Counsel, after which further disbursements and divisions would
occur among the lawyers as set forth in the Fee and Expense
Motion.
The Class Counsel's fee request is granted in part and denied in
part. The Co-Lead Class Counsel is awarded 25% of the value of the
claims in the following two categories: (i) the claims resolved
through the Adult Exposure, Property Damage, and Business Economic
Loss Subclasses; and (ii) the aggregate claims involving a Minor
who retained Class Counsel (or an Executive Committee firm) before
Aug. 20, 2020. Additionally, the Class Counsel is awarded: 10% of
the value of the Programmatic Relief Fund; and 8% of the aggregate
value of the claims involving a Minor where the Class Counsel
assisted or was retained by the Minor after Aug. 20, 2020.
IRC's fee request is granted in part and denied in part. IRC are
awarded, regardless of any amount set forth in their retainer
agreements: 25% of the value of the claims for Claimants that
entered into retainer agreements with IRC before August 20, 2020;
8% of the value of the claims for the Claimants that entered into
retainer agreements with IRC after Aug. 20, 2020; and 8% of the
value of the claims where IRC assisted and advocated for a Minor in
submitting a claim, whether retained or unretained, if the
assistance took place after Aug. 20, 2020.
Based on the foregoing, Judge Levy explains that the total
settlement amount is $626.25 million. The global 6.33% CBA award is
therefore $39,641,625. The Co-Lead Class Counsel and the Co-Liaison
Counsel will divide the $39,641,625 between them, after which
further disbursements and divisions would occur among the lawyers.
Deducting $39,641,625 from the $626,250,000 total settlement amount
leaves $586,608,375 remaining.
Next, expenses as well as Administrative Fees and Costs will be
deducted from the $586,608,375. After this, the remaining amount
will be allocated into the percentage amounts set forth in Section
5.2 of the ASA for the purpose of computing and setting aside the
$35 million Future Minor Fund and the legionella death claims (as
set forth in Category 27B of the Compensation Grid). Ten percent of
the Programmatic Relief Fund will be set aside as fees.
Then, the aggregate attorney fee/CBA in the amount of 25% will be
calculated set aside as the attorney fee reserve for all components
except for the Programmatic Relief Fund. The remaining amount will
be the net funds available to pay Claimants and will be allocated
as provided in Section 5.2 of the ASA.
The Court may issue an Order seeking an update from the Movants
and/or the Special Master after the Claims Period has ended and
more is known about the number of eligible Claimants.
Every Claimant in a particular Compensation Grid category will
receive the same amount as all others in that category with the
exception of Category 27B, which sets forth varying award amounts
based on the Claimant's age. And, as stated in the Compensation
Grid, the Monetary Awards for Claimants in Category 27B are "gross
dollar awards from which attorneys' fees and expenses owed by those
Claimants will be deducted."
Judge Levy concludes that the Plaintiffs' Counsel achieved an
extraordinary settlement in a case that has been intensely
litigated for nearly six years. The fees awarded reflect their hard
and persistent work. These fees are well-earned. Through this fee
award, Judge Levy says the Court has maintained the equitable
structure of the settlement proposal itself and carried that equity
over to the fee and cost award, such that there remains parity
among Claimants in each Compensation Grid category.
Judge Levy has reduced the total percentage that will be paid to
attorneys from what was originally requested in the Fee and Expense
Motion. She also changed the "order of operations" from what was
sought to achieve a reasonable and fair result.
The Court has undertaken additional modifications to the Movants'
proposed allocation among attorneys in a manner it believes is
fair, specifically, ordering that the greatest percentage award be
for common benefit work, while adjusting the remainder accordingly
so that the value of fees never exceeds 25% of that amount. This
structure protects the Claimants' compelling interest in receiving
the highest Monetary Awards possible.
C. Objections
The Court received objections from Unrepresented Objectors, the
Hall Objectors, the Chapman/Lowery Objectors, and Plaintiff Brown.
Judge Levy denied all objections except that the Unrepresented
Objectors and the Chapman/Lowery objections are granted in part.
1. Unrepresented Objectors' Objections
The Court received 81 objections from Unrepresented Objectors.
These objections state that the Plaintiffs' attorneys are being
paid too much and community residents are not receiving adequate
compensation in view of the long-term harm the water crisis
created. The Plaintiffs' attorneys will receive much more
compensation than the average adult in the settlement.
Judge Levy granted in part and denied in part the Unrepresented
Objectors' objections. She says, the Unrepresented Objectors'
argument compares apples to oranges: One cannot compare the overall
total attorney fee award on one hand with an individual monetary
award on the other. In terms of total amounts, the Court has
awarded less than 31.33% of the total $626.25 million settlement
amount for attorney fees. This is reasonable and well within the
range approved by other courts. Moreover, it bears emphasizing that
the fee award will be split among dozens of the Plaintiffs' law
firms (and hundreds of lawyers).
2. The Hall Objectors' Objection
The Hall Objectors raise several points in their objection. Their
first argument is that the percentage of the fund sought "should be
lower" overall. rom what the Court can discern, their second main
argument regards the structure of the fee request. More
specifically, Hall Objectors argue that the structure is unfair
because individuals who did not hire attorneys to represent or
assist them still pay the Plaintiffs' Counsel.
Judge Levy denied the arguments in the Hall Objectors' objection.
She opines that (i) there is no evidence of a windfall in the award
granted; (ii) the structure proposed by the Movants and granted by
the Court fairly compensates the lawyers and creates equity among
Claimants; (iii) the Movants cite a good number of cases in support
of their request in which courts have granted awards that are
similar to -- and higher than -- the award they seek; (iv) the
Court has been provided with adequate information in the Fee and
Expense Motion regarding how the Plaintiffs' Counsel intend to
sub-divide any award of fees granted by the Court; (v) there is no
need to seek further input from the Settling Defendants on the fee
request; (vi) the Court has addressed and accounted for a fair and
reasonable 'order of operations' for determining the fee award for
the reasons; and (vii) there are no violations of the Federal Rules
of Civil Procedure.
3. The Chapman/Lowery Objectors' Objection
The Chapman/Lowery Objectors present three main points in their
objection. First, they argue that they should be able to study the
Time and Expense Order data and the data underlying the Fee and
Expense Motion. Second, they argue that the CBA sought is too high,
and they lodge several protestations to the Co-Liaison Counsel's
performance. Third, they argue that the July 16, 2021 date set
forth in the proposal (which is the date set forth in the Fee and
Expense Motion after which IRC's proposed fee would be reduced) is
arbitrary and should instead be aligned with the date that the
Motion for Preliminary Approval was filed on Nov. 17, 2020.
Judge Levy denied the first two points made in the Chapman/Lowery
Objection. She granted in part and denied in part the final
argument. Among other things, she finds that it is reasonable to
move the cut-off date for a reduced fee to Aug. 20, 2020. She says
it is logical that, on and after the date that the settlement was
announced, "the risk of nonrecovery, and therefore the contingent
nature of the counsel's work, dropped dramatically and ultimately
disappeared." As a result, Mr. Cuker may collect a 25% retainer for
the clients who signed a retainer with him between July 16, 2020
and before Aug. 20, 2020.
4. Brown's Objection
Brown objected to the attorney fee motion. Brown's Complaint
alleges that Odie Brown died of Legionnaires' disease, which she
contracted while hospitalized at Hurley Hospital and/or at McLaren
Hospital. Brown's position is that, if the McLaren Defendants elect
not to walk away from the settlement, "Plaintiff Brown objects to
the Plaintiffs' request for a $1.26 Million CBA attorney fee on the
McLaren share of the settlement. Unlike the settlement proceeds
being paid by other settling Defendants, any McLaren paid
settlement cannot be said to have resulted from common benefit work
the Plaintiffs conducted as to McLaren." The $1.26 million figure
represents 6.33% of $20 million, which was McLaren's original
contribution to the settlement. Therefore, the objection is to the
6.33% CBA request. Accordingly, the argument goes, PLG should not
be permitted to take a global CBA from McLaren's contribution.
Judge Levy denied Brown's objection. Brown did not register for the
settlement and has no standing to object to it. Even if Brown had
registered, there is no authority to support her position that she
should be treated differently from any other Claimant who is
settling claims against the McLaren Defendants, or that the McLaren
Defendants' contribution to the total settlement fund should be
treated differently than the contributions of any other Settling
Defendant. The funds contributed by the Settling Defendants are to
be placed in one Qualified Settlement Fund for the benefit of all
Claimants. In reaching its decision on final approval, Judge Levy
found that this structure is fair, adequate, and reasonable.
D. The Hall and Chapman/Lowery Objectors' Discovery Motions
The Hall and Chapman/Lowery Objectors both separately move to
review and respond to hourly billing and costs. First, they argue
that they are entitled to inspect the attorneys' detailed hourly
billing and cost records that have already been submitted to both
the Special Master and to the Court in camera. Second, they argue
that they are entitled to discovery of fee-sharing agreements among
the firms that will receive the CBA.
As an initial matter, the Hall and Chapman/Lowery Objectors have
not cited any authority to support their argument that they have a
right to inspect detailed fee and cost information. As to their
arguments that they are entitled to review fee-sharing agreements,
the Hall and Chapman/Lowery Objectors again fail to provide
authority in support of their request. Regarding the class-side of
the case, Rule 23(e) requires only that the counsel provide "a
statement identifying any agreement made in connection with the
proposal." This is satisfied by the Movants' motion and further
inquiry and scrutiny by objectors is unnecessary. The way PLG have
agreed to divide the funds has been adequately described and
discovery of any such underlying agreement would not change the
outcome of the fee award or deductions ultimately taken from the
Hall or Chapman/Lowery Objectors' Monetary Awards. In sum, the
Discovery Motions are denied.
III. Conclusion
For the reasons she set forth, Judge Levy granted an expense award
in the amount of $7,147,802.36 and a CBA in the amount of
39,641,625, which is 6.33% of the total settlement amount.
Additionally, Judge Levy ordered an awarded as follows:
a. A CBA of 17% of the value of the amount awarded to
Claimants who were retained after Aug. 20, 2020;
b. A CBA of 17% of the value of the amount awarded to any
Minor Claimant who was assisted by counsel after Aug. 20, 2020;
and
c. CBA of 25% of the value of the amount awarded to any
unrepresented Minor Claimant who does not retain their own
counsel.
The Class Counsel is awarded 25% of the value of the claims in the
following two categories:
a. The claims resolved through the Adult Exposure, Property
Damage, and Business Economic Loss Subclasses; and
b. The aggregate claims involving a Minor who retained Class
Counsel before Aug. 20, 2020.
The class Counsel is awarded 10% of the value of the Programmatic
Relief Fund; and 8% of the aggregate value of the claims involving
a Minor where the Class Counsel assisted or retained the Minor
after Aug. 20, 2020.
IRC are awarded:
a. 25% of the value of the claims for Claimants that entered
into retainer agreements with IRC before Aug. 20, 2020;
b. 8% of the value of the claims for Claimants that entered
into retainer agreements with IRC after August 20, 2020; and
c. 8% of the value of the claims where IRC assisted and
advocated for a Minor in submitting a claim, whether retained or
unretained, if the assistance took place after Aug. 20, 2020.
The Unrepresented Objectors' and the Chapman/Lowery Objectors'
Objections are granted in part. Hall Objectors and Brown's
Objections are denied. The Hall Objectors' and Chapman/Lowery
Objectors' Discovery Motions are denied.
A full-text copy of the Court's Feb. 4, 2022 Opinion & Order is
available at https://tinyurl.com/52fuw7t9 from Leagle.com.
FMC CORP: Herbicide Causes Damage to Barley Crops, Class Suit Says
------------------------------------------------------------------
Shannon Beattie, writing for Farm Weekly, reports that a potential
class action against FMC for alleged damage caused by its herbicide
Overwatch has gained momentum with more than 100 cases reported.
In September last year, Levitt Robinson confirmed it was seeking
expressions of interest from farmers on a proposed class action
against FMC on the grounds that Overwatch caused damage to barley
crops.
Since then, the legal firm has been waiting until harvest finished
so farmers could quantify how bad the losses from the herbicide
were.
Levitt Robinson special counsel Brett Imlay said the reports from
farmers showed that wherever the herbicide had been used on barley,
in particular, the losses were allegedly quite significant.
"That obviously depends on the hectares under cultivation, but
we're seeing anywhere from 20 to 70 per cent in losses," Mr Imlay
said.
"There was a wide range and the losses aren't uniform as they
depend on a number of factors, however it happened regardless of
the sowing method that was used.
"I believe that FMC is going to try to suggest that it was only
significant off-label usage that caused the problems, however
that's not what we are seeing from farmers."
According to Levitt Robinson, the registration of interest from
farmers was sufficient and was greater than other class actions
that have gained momentum and been successfully launched by the
firm in the past.
When asked about the potential class action, FMC head of
development for Aaustralia/New Zealand Geoff Robertson said the
company continued to work closely with growers who use Overwatch
Herbicide to help them achieve the best outcomes and discuss any
queries that they may have.
"The vast majority of growers have had a positive experience using
Overwatch Herbicide in 2021," Mr Robertson said.
"2022 is again looking like it will be a great growing season and
FMC is working hard to ensure growers have access to sufficient
supply of Overwatch herbicide to enable growers to achieve maximum
success this year."
Mr Imlay said it would be a matter of weeks, if not months, until
the class action was potentially launched as they're still
investigating what the ultimate impact was.
He encouraged anyone who thought they had suffered a loss to get in
contact with the firm. [GN]
FORD MOTOR: Faces Class Action over Defective Water Pumps
---------------------------------------------------------
The Car Guide reports that alleging significant engine damage and
even physical injury in some cases, a lawsuit against Ford over a
defective water pump recently became a class action in Canada
following a ruling by the Ontario Superior Court.
According to CarComplaints.com, the lawsuit includes all Canadians
who owned or leased one of the vehicles listed below on or before
June 8, 2021, and who experienced problems with the water pump that
resulted in damage to the vehicle, with or without injury.
Here's the list of every concerned vehicle:
Ford Edge 2007-2018
Ford Explorer 2011-2019
Ford Flex 2009-2019
Ford Fusion 2011-2012
Ford Fusion Sport 2010-2012
Ford Taurus de police 2013-2019
Ford Explorer de police 2013-2019
Ford Taurus 2008-2019
Ford Taurus X 2008-2009
Lincoln MKS 2009-2016
Lincoln Continental 2017-2020
Lincoln MKT 2010-2019
Lincoln MKX 2007-2018
Lincoln Zephyr/MKZ 2007-2016
Mercury Sable 2008-2009
The class action alleges that the water pump leaks coolant onto
other engine parts and damages them as a result.
The Court upheld the claim of negligence in the design of the pump,
but only where the malfunction of the pump results in damage to the
vehicle and injury to the occupants.
Ford Canada denies that there was any problem with the water pump.
The class action will be heard in Ontario Superior Court in the
coming months.
For more information, visit the website of the law firm Koskie
Minsky LLP. [GN]
FPA VILLA: Court Grants Bid for Summary Judgment in Lawrence Suit
-----------------------------------------------------------------
In the case, JUSTIN LAWRENCE, individually and on behalf of all
others similarly situated, Plaintiff v. FPA VILLA DEL LAGO, LLC,
and TRINITY PROPERTY CONSULTANTS, LLC, Defendants, Case No.
8:20-cv-1517-VMC-JSS (M.D. Fla.), Judge Virginia M. Hernandez
Covington of the U.S. District Court for the Middle District of
Florida, Tampa Division, issued an Order:
1. granting Defendants FPA Villa Del Lago, LLC, and Trinity
Property Consultants, LLC's Motion for Summary Judgment,
filed on June 4, 2021;
2. denying as moot the Plaintiff's Motion for Class
Certification, filed on May 5, 2021; and
3. denying the Plaintiff's Motion to Amend Scheduling Order,
file on Feb. 2, 2022.
I. Background
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. "Each apartment includes a common area
consisting of a kitchen, in-unit washer-dryer and shared living and
dining space. Each individual bedroom is separated from the common
areas by a locking door and includes a corresponding private
bathroom. Although The Social 2700 is marketed entirely to
students, "there is no requirement to be an enrolled college or
university student to live at The Social 2700."
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 Aug. 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. Lawrence concedes, however, that he could have stayed
at The Social 2700 if he wished to do so. At the same time, The
Social 2700 began closing amenities and transitioning staff to
remote work in light of federal and state health recommendations.
Thereafter, on April 26, 2020, "Lawrence vacated his apartment."
According to Lawrence, on that same date, he attempted to return
his keys to The Social 2700, but was unable to do so because the
office was closed. At a later date, Lawrence mailed back his keys.
Despite his lease agreement, Lawrence "did not pay rent for the
months of May, June, or July 2020."
The Social 2700 began contacting Lawrence regarding his rental
payments in early May. First, The Social 2700 sent Lawrence a
"friendly reminder" e-mail on May 1, 2020, advising Lawrence that
his rent was due that day. Next, on May 12, 2020 -- after
Lawrence's debt was past due -- The Social 2700 sent him an e-mail
stating: "This is a reminder that you have a balance due on your
account of $470.12. Please give the office a call to clear off your
balance." Three days later, on May 15, 2020, the Social 2700 sent
Lawrence a statement listing an outstanding balance of $1,793.86.
The statement also notes: "We make any and all efforts to avoid
sending your account to a collection agency. However, in the event
you are unable to make a timely payment, your account will be
forwarded to a collection provider and your credit may be adversely
affected."
On May 19, 2020, The Social 2700 sent Lawrence another e-mail. In
addition to these e-mails, Lawrence received a voicemail from The
Social 2700 on May 7, 2020.
Lawrence initiated the putative class action against FPA
Multifamily, LLC, on July 2, 2020. Following several motions to
dismiss and amendments to the complaint, FPA Multifamily was
replaced with FPA Villa Del Lago and Trinity Property. The
operative third amended complaint includes the following claims:
Rescission against FPA Villa Del Lago (Count I), unjust enrichment
against all the Defendants (Count II), and violation of Sections
559.72(7) and 559.72(9) of the Florida Consumer Collection
Practices Act ("FCCPA") against all the Defendants (Count III).
Lawrence also seeks to certify the following class: "All residents
of The Social 2700 Student Spaces who (1) moved out after March 18,
2020, but before the expiration of their lease term, and either (a)
paid the costs of rent and fees for the months of March, April,
May, June and/or July 2020, or (b) did not pay for these months but
were sent debt collection communications from the Defendants."
Now, the Defendants move for summary judgment. Lawrence has
responded, and the Defendants replied. The Motion is now ripe for
review.
II. Analysis
The Defendants seek summary judgment in their favor on all three
counts of the third amended complaint.
A. Rescission
First, the Defendants move for summary judgment in their favor on
Count I -- Lawrence's claim for rescission against FPA Villa Del
Lago -- because the claim is overcome by the express terms of the
lease agreement. Lawrence responds that the terms of the lease
favor rescission.
Judge Covington holds that despite not being able to use the
fitness center, pool, and other amenities, Lawrence still had
access to his apartment. Indeed, Lawrence admits he could have
continued to live at The Social 2700 but chose not to. Even viewing
the facts in the light most favorable to Lawrence, no reasonable
juror could conclude that the purpose of the lease was frustrated
when The Social 2700 closed or limited access to its amenities
because of COVID-19. Accordingly, Count I is dismissed to the
extent it seeks rescission based on frustration of purpose.
For the same reasons, Count I also fails insofar as it is based on
impossibility of performance. This is not a situation where
Lawrence could not reside at The Social 2700 or Defendants were
prohibited from operating the apartment complex. And, under the
terms of the lease, an "epidemic" was anticipated by the parties.
In any event, Lawrence provides no factual support for his
allegation that he was unable to find a replacement tenant.
Accordingly, the Motion is granted as to Count I to the extent it
is based on impossibility of performance as well.
B. Unjust Enrichment
Next, the Defendants move for summary judgment on Count II --
Lawrence's claim for unjust enrichment against all the Defendants
-- because "there is an adequate legal remedy provided by the lease
and there is no evidence that Trinity 'unjustly' obtained rent
payments from Lawrence." Lawrence responds that "unjust enrichment
does not fail due to the lease agreement. Lawrence appears to argue
that his claim for unjust enrichment is viable as to Trinity
Property because it is not a party to the lease agreement.
However, Judge Covington holds that Lawrence cites to no record
evidence showing that any benefit was conferred to Trinity Property
-- as opposed to FPA Villa Del Lago. And she finds that it would
not be inequitable for Trinity Property to retain rental payments
pursuant to a valid lease under these circumstances -- in that
Lawrence voluntarily moved out of The Social 2700 and admitted that
he could have continued to reside there.
In any case, the lease agreement expressly noted that Lawrence
would be responsible for such payments. Thus, Count II fails as a
matter of law as to Trinity Property as well.
C. Florida Consumer Collection Practices Act
Next, the Defendants move for summary judgment on Count III --
Lawrence's claim for violations of Sections 559.72(7) and (9) of
the FCCPA against all the Defendants.
1. Section 559.72(7)
The Defendants argue that Lawrence's claim for violations of
Section 559.72(7) of the FCCPA fails because "the communications
identified by Lawrence occur almost exclusively during the month of
May 2020 and are made up of communications informing him of his
debt." They further maintain that Lawrence's "testimony that he was
allegedly `stressed' but not actually affected in any material way
by these otherwise authorized communications establishes that [he]
has no basis for this claim." Lawrence responds that a jury could
conclude that these communications "were harassing in frequency
given they were for rent at the height of COVID."
Judge Covington finds that Lawrence alleges that the Defendants
made 14 harassing debt collection communications, although he only
provides factual support for five of them. The only information
provided as to this call is that the Defendants "asked for payment
of the outstanding rent and charges due." However, these statements
are conclusory, and do not provide any evidence from which a
reasonable juror could determine that these additional calls were
harassing.
And the five e-mails and single voicemail that have been provided
appear pleasant (or neutral at worst) and simply remind Lawrence of
the past due rent. Indeed, no reasonable juror could conclude that
these communications included harassing language, or that they were
so frequent that they could be considered harassing. Judge
Covington disagrees with Lawrence that the existence of COVID-19
alters this calculus. And Lawrence testified that although he was
stressed by these calls, they did not have "a direct impact on how
he was living his life."
Accordingly, the Motion is granted as to Count III to the extent it
seeks relief under Section 559.72(9) of the FCCPA.
2. Section 559.72(9)
Finally, the Defendants argue that Lawrence's claim for violations
of Section 559.72(9) of the FCCPA fails because Lawrence "agreed
that he owes money under the terms of the Lease. And given the
legitimacy of the debt under the terms of the lease, the
Defendants' attempts to collect the same in line with paragraphs 35
and 36 of the Lease were proper." Lawrence responds that summary
judgment is not warranted because the "Defendants continued to
charge Lawrence $150 for failing to return his keys even though it
was acknowledged that he did in fact return them and that they were
received" and because authorities advised college students "to go
home and stay there" in light of COVID-19.
Judge Covington finds that the Plaintiffs have offered no record
evidence from which a reasonable juror could conclude that the
Defendants knew the $150 key fee was not legitimate. Regarding the
past due rent, Lawrence only cites to the rise of COVID-19 and
state recommendations that students return home from college in
light of health concerns. Thus, Count III fails insofar as it
claims Defendants violated Section 559.72(9) as to the past due
rent or any other alleged debts.
D. Class Certification
Having found summary judgment appropriate on each of the
Plaintiff's claims, Judge Covington 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.
And where the underlying claims lack merit, the district court is
within its discretion to deny a motion for class certification as
moot. Thus, the Plaintiff's Motion for Class Certification is
denied as moot.
E. Motion to Amend Scheduling Order
As a final matter, Lawrence filed a Motion to Amend Scheduling
Order on Feb. 2, 2022. He seeks to re-depose the Defendants'
corporate representative for information about how they decided to
charge other certain fees to other tenants, and he wishes to
confirm which debt collector Defendants used to collect those fees.
Judge Covington declines to extend the discovery deadline -- which
expired on May 7, 2021.
Lawrence suggests that the Defendants withheld evidence of debt
collecting communications made both to himself and the putative
class. After the parties fully briefed the class certification and
summary judgment motions, the Plaintiff successfully pursued
several motions to compel and for contempt. The Plaintiff received
amended Rule 26 disclosures and volumes of new documents
thereafter. Yet with those documents now in hand, the Plaintiff
seeks to have the Defendants' corporate representative re-hash the
fee and collection issues with respect to the potential class
members.
Judge Covington finds that an extension of the discovery deadline
is not warranted as the Plaintiff has not asserted how this
information would be useful in fending off summary judgment against
his claims. As the Court previously explained, the two fees that
Lawrence contends to have been illegitimate were the unpaid rent
and unreturned key fees. Both claims failed. Further, the
Plaintiff's request for further discovery that could benefit the
potential class members is unnecessary since the Court has already
found summary judgment appropriate on each of Lawrence's claims.
Thus, the desire for fee and collection discovery concerning
non-parties does not justify a need for additional discovery at
this juncture. The Motion to Amend Scheduling order is denied.
III. Order
Accordingly, Judge Covington granted the Defendants' Motion for
Summary Judgment. She denied as moot the Plaintiff's Motion for
Class Certification. She denied the Plaintiff's Motion to Amend
Scheduling Order.
The Clerk is directed to enter judgment in favor of Defendants and
against Plaintiff Lawrence as to all claims in the third amended
complaint. The Clerk is directed to terminate any deadlines, deny
any outstanding motions as moot, and thereafter, close the case.
A full-text copy of the Court's Feb. 4, 2022 Order is available at
https://tinyurl.com/er9vke37 from Leagle.com.
GENRENEW LLC: Underpays Sales Representatives, Sagastume Alleges
----------------------------------------------------------------
LUIS SAGASTUME, individually and on behalf of all others similarly
situated, Plaintiff v. GENRENEW, LLC, Defendant, Case No.
3:22-cv-00771 (D.N.J., February 11, 2022) is a class action against
the Defendant for breach of contract, breach of implied good faith
and fair dealing, promissory estoppel, negligent misrepresentation,
unjust enrichment, and unpaid wages in violation of the New Jersey
Sales Representatives' Rights Act and the Illinois Sales
Representative Act.
The Plaintiff worked for the Defendant as a sales representative.
Genrenew, LLC is a company that offers solar panels and solar panel
installation, with its principal executive office located at 195
Throckmorton St., Freehold, New Jersey. [BN]
The Plaintiff is represented by:
Asher Klein, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, Eighth Floor
New York, NY 10011
Telephone: (212) 465-1188
Facsimile: (212) 465-1181
GOOGLE LLC: Coffee Appeals Loot Boxes Suit Dismissal
----------------------------------------------------
Plaintiffs JOHN COFFEE, et al., filed an appeal from a court ruling
entered in the lawsuit entitled JOHN COFFEE; MEI-LING MONTANEZ; and
S.M., a minor by MEI-LING MONTANEZ; S.M.'s parent and guardian,
individually and on behalf of all others similarly situated,
Plaintiffs v. GOOGLE LLC, Defendant, Case 5:20-cv-03901, in the
U.S. District Court for the Northern District of California, San
Jose.
The lawsuit alleges that the Defendant's Loot Box mislead children
to engage in gambling and addictive conduct.
According to the complaint, the Defendant -- through the games it
sells and offers for free to consumers through its "Google Play"
store -- engages in predatory practices enticing consumers,
including children to engage in gambling and similar addictive
conduct in violation of the laws designed to protect consumers and
to prohibit such practices.
The Defendant relies on creating addictive behaviors in kids to
generate huge profits for the Company. Over the last four years the
Defendant's Google Play store games have brought in billions of
dollars, even though the vast majority of the games are free to
download. A large percentage of Google's revenues from Google Play
store games come from the in-game purchases of what are known in
the gaming industry as "loot boxes" or "loot crates." Dozens, if
not hundreds, of Google Play store games rely on some form of Loot
Box or similar gambling mechanism to generate billions of dollars,
much of it from kids.
Loot Boxes are purchased using real money, but are simply
randomized chances within the game to obtain important or better
weapons, costumes or player appearance (called "skins"), or some
other in-game item or feature that is designed to enhance
game-play. If obtained, these weapons, skins, and other items can
help the player advance in the game and enhance the game playing
experience. But buying a Loot Box is a gamble, because the player
does not know what the Loot Box actually contains until it is
opened.
As reported in the Class Action Reporter on Feb. 19, 2022, Judge
Beth Labson Freeman granted Google's motion to dismiss the
complaint under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, with leave to amend.
The Plaintiffs are challenging this order.
The appellate case is captioned as JOHN COFFEE; MEI-LING MONTANEZ;
S. M., a minor by Mei-Ling Montanez, S.M.'s parent and guardian, on
behalf of themselves and all others similarly situated,
Plaintiffs-Appellants, and JOHN SPARKS; FRANCES LONG; SHELLIE
LORDS; TERRI BRUSCHI, Plaintiffs v. GOOGLE LLC, Defendant-Appellee,
Case No. 22-15211, in the United States Court of Appeals for the
Ninth Circuit, filed on Feb. 11, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant's Mediation Questionnaire is due today, February
18, 2022;
-- Transcript shall be ordered by March 11, 2022;
-- Transcript shall be filed by April 11, 2022;
-- Appellant's opening brief and excerpts shall be filed on May
20, 2022;
-- Appellee's opening brief and excerpts shall be filed on June
20, 2022; and
-- The optional appellant's reply brief shall be filed and
served within 21 days of service of the appellee's brief. Failure
of the appellant to comply with the Time Schedule Order will result
in automatic dismissal of the appeal.[BN]
INSOMNIA COOKIES: Hine Sues Over Unpaid Wages for Delivery Drivers
------------------------------------------------------------------
TAYLOR RAE HINE, individually and on behalf of all others similarly
situated, Plaintiff v. INSOMNIA COOKIES; KRISPY KREME INC. f/d/b/a
Krisy Kreme Doughnut of New York d/b/a Krispy Kreme; SETH
BERKOWITZ, Defendants, Case No. 6:22-cv-06075 (W.D.N.Y., February
11, 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 provide meal periods, failure to keep payroll
records, failure to provide wage notice at the time of hire,
failure to provide wage statements, breach of implied contract, and
failure to pay to delivery experts.
The Plaintiff worked for the Defendants as a delivery driver from
October 26, 2019 to August 03, 2021.
Insomnia Cookies is a consumer goods company, with a principal
address at 440 Park Avenue South, 14th Floor, New York, New York.
Krispy Kreme Inc., d/b/a Krispy Kreme Doughnut of New York, is an
American doughnut company and coffeehouse chain, with headquarters
located at 370 Knollwood Street Winston-Salem, North Carolina.
[BN]
The Plaintiff is represented by:
John Troy, Esq.
Aaron Schweitzer, Esq.
Tiffany Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard Suite 103
Flushing, NY 11355
Telephone: (718) 762-1324
INTUITIVE SURGICAL: Faces Antitrust Suit Over Medical Instruments
-----------------------------------------------------------------
Intuitive Surgical, Inc. disclosed in its Form 10-K Annual Report
for the fiscal year ended December 31, 2021, filed with the
Securities and Exchange Commission on February 3, 2022, that three
class action complaints were filed against the company in the
Northern District of California Court alleging antitrust
allegations relating to the service and repair of certain
instruments it manufactured, Kaleida Health, a plaintiff in one of
the actions, voluntarily dismissed itself as a party and the
company filed an answer against the plaintiffs.
The Kaleida Health complaint was filed on July 8, 2021.
A complaint by Larkin Community Hospital was filed on May 20, 2021
while a complaint by Franciscan Alliance, Inc. and King County
Public Hospital District No. 1 was filed on July 6, 2021. The court
has consolidated the Franciscan Alliance, Inc. and King County
Public Hospital District No. 1 and Kaleida Health cases with the
Larkin Community Hospital case, which is now captioned on the
Larkin docket as "In Re: da Vinci Surgical Robot Antitrust
Litigation."
A consolidated amended class action complaint has been filed on
behalf of each plaintiff named in the earlier-filed cases. The
company filed an answer against the plaintiffs in this matter and
discovery has commenced.
Intuitive Surgical, Inc. is into orthopedic, prosthetic & surgical
appliances and supplies based in California.
JEFLO & CO: Vazquez Sues Over Unpaid Wages for Delivery Workers
---------------------------------------------------------------
DANIEL VAZQUEZ, individually and on behalf of all others similarly
situated, Plaintiff v. JEFLO & CO. LTD. (D/B/A ROYALE), JOSHUA
BERMAN, DAVID WEAKLEY, and JEFFREY PARDO, Defendants, Case No.
1:22-cv-01215 (S.D.N.Y., February 11, 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 failure
to reimburse business expenses.
The Plaintiff was employed as a delivery worker at Royale located
at 157 Loisaida Avenue, New York, New York from December 2015 until
April 3, 2021.
Jeflo & Co. Ltd. is an owner and operator of a restaurant under the
name Royale, located at 157 Loisaida Avenue, New York, New York.
[BN]
The Plaintiff is represented by:
Catalina Sojo, Esq.
CSM LEGAL, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
JENKINSON'S PAVILION: Abreu Seeks Blind's Equal Website Access
--------------------------------------------------------------
LUIGI ABREU, individually and on behalf of all others similarly
situated, Plaintiff v. JENKINSON'S PAVILION, Defendant, Case No.
1:22-cv-01210 (S.D.N.Y., February 11, 2022) is a class action
against the Defendant for violations of the Americans with
Disabilities Act and the New York City Human Rights Law.
According to the complaint, the Defendant has failed to design,
construct, maintain, and operate its website to be fully accessible
to and independently usable by the Plaintiff and other blind or
visually-impaired persons. The Defendant's website, jenkinsons.com,
contains access barriers which hinder the Plaintiff and Class
members to enjoy the benefits of its online goods, content, and
services offered to the general public through the website. These
alleged access barriers include, but not limited to: (a) the screen
reader reads the "sub-menu" tab even when the item is not selected,
(b) the screen reader skips over certain text on the page, (c) the
screen reader abruptly stops functioning in the middle of a
sentence or speech, and (d) the screen reader fails to read the
Live Customer Support link that comes up.
The Plaintiff and Class members seek permanent injunction to cause
a change in the Defendant's corporate policies, practices, and
procedures so that the Defendant's website will become and remain
accessible to blind and visually-impaired individuals.
Jenkinson's Pavilion is an online retail company that conducts
business in New York. [BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
Jarrett S. Charo, Esq.
William J. Downes, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, 24th Floor
New York, NY 10281
Telephone: (212) 595-6200
Facsimile: (212) 595-9700
E-mail: jmizrahi@mizrahikroub.com
jcharo@mizrahikroub.com
wdownes@mizrahikroub.com
JIM KOONS: Faces Proposed Class Action Over Data Breach
-------------------------------------------------------
Erin Shaak at classaction.org reports that Jim Koons Automotive
Companies faces a proposed class action over a data breach
discovered in June 2021, during which the car dealer's customers'
personal information was reportedly compromised.
The 39-page lawsuit claims the defendant, a Washington D.C.-area
automotive group, failed to implement reasonable data security
measures to protect the personal information with which it was
entrusted. Per the case, the information exposed in the breach
included customers' names, addresses, Social Security and driver's
license numbers and financial account information.
The suit claims Koons had legal and equitable duties to safeguard
customers' information yet failed to take the necessary steps to do
so.
"Defendant's conduct in breaching these duties amounts to
negligence and/or recklessness and violates federal and state
statutes," the complaint charges.
As the suit tells it, Koons discovered on July 5, 2021 "unusual
activity on certain computer systems" and later confirmed that an
unauthorized actor had gained access to "a portion of the network
and encrypted network files." The lawsuit alleges that although the
defendant has not revealed when its systems were first breached,
the hacker likely had "unfettered and undetected access to
Defendant's networks for a considerable period of time."
According to the complaint, Koons waited until January 2022, more
than seven months after first learning of the breach, to notify
affected customers. To date, the defendant has revealed neither
when the perpetrator gained access to its network nor the manner in
which the person was able to do so, the complaint says.
The lawsuit argues the defendant should have implemented data
security measures that have been recommended by the U.S.
government, U.S. Cybersecurity & Infrastructure Security Agency and
Microsoft Threat Protection Intelligence Team in order to safeguard
personally identifiable customer information (PII).
Koons customers whose information was compromised in the breach now
face an increased risk of identity theft and fraud as a result of
the incident, the case argues.
"Plaintiff and Class Members now face years of constant
surveillance of their financial and personal records, monitoring,
and loss of rights," the complaint reads. "The Class is incurring
and will continue to incur such damages in addition to any
fraudulent use of their PII."
The lawsuit goes on to decry the defendant's offer of 12 months of
credit and identity monitoring services, calling the proposed
solution "woefully inadequate" to protect consumers in the fact of
"multiple years of ongoing identity theft and financial fraud."
Moreover, Koons has "entirely fail[ed]" to sufficiently compensate
consumers for the unauthorized disclosure of their information, the
case charges.
The lawsuit looks to represent anyone the defendant identified as
among those who were impacted by the data breach, including
consumers who were sent notice of the incident. [GN]
JJ ARADHANA: Marquez Sues Over Restaurant Staff's Unpaid Wages
--------------------------------------------------------------
NATALIA MARQUEZ CABRERA and RIGOBERTO GALO MANUELES, on behalf of
themselves and all others similarly situated, Plaintiffs v. JJ
ARADHANA INC. (D/B/A GREEK VILLAGE RESTAURANT), SOHAN LAL (a/k/a
SONY), and NICHOLAS C. TSAPELIS (a/k/a NICK), Defendants, Case No.
1:22-cv-00807 (E.D.N.Y., February 11, 2022) is a class action
against the Defendants in 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 premium, failure to provide accurate wage notice,
failure to provide accurate wage statements, failure to reimburse
business expenses, unlawful wage deductions, and failure to timely
pay wages.
Plaintiffs Marquez and Galo were employed by the Defendants as
dishwashers, food preparers, and busboys at Greek Village
Restaurant from November 27, 2018 until November 6, 2021 and from
2015 until November 6, 2021, respectively.
JJ Aradhana Inc., doing business as Greek Village Restaurant, is a
restaurant owner and operator located at 44 Veterans Memorial Hwy.,
Commack, New York. [BN]
The Plaintiffs are represented by:
Catalina Sojo, Esq.
CSM LEGAL, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
JOHN HANCOCK: May 17 Class Settlement Fairness Hearing Set
----------------------------------------------------------
If you are the current or former owner of a Performance Universal
life insurance policy issued by John Hancock that was subject to a
cost of insurance rate increase, your rights may be affected by a
class action settlement
JND Legal Administration announces that a proposed settlement has
been reached in a class action lawsuit called Jeffrey Leonard et.
al. v. John Hancock Life Insurance Company of New York et. al.,
Case No. 18-CV-4994 (AKH) (the "Settlement"). This notice provides
a summary of your rights and options. More details are available at
www.HancockCOISettlement.com.
What is this about? The lawsuit alleges that Defendants, John
Hancock Life Insurance Company of New York and John Hancock Life
Insurance Company (U.S.A.) (collectively, "John Hancock") increased
cost of insurance ("COI") rates on certain Performance Universal
Life policies beginning in 2018 and 2019 unlawfully and in
violation of the terms of the policies (the "COI Increase"). The
lawsuit further alleges that John Hancock violated certain state
statutes for issuing false and misleading illustrations regarding
the policies. John Hancock denies these claims; however, both sides
have agreed to the Settlement to avoid the cost of further
litigation.
Who is affected? You are potentially a member of the Settlement
class whose rights may be affected if you are a current or former
owner of one or more of the universal life insurance policies
subjected to the COI Increase (a "Class Policy" or "Class
Policies"). To learn which policies are excluded go to
www.HancockCOISettlement.com.
How do I know if I am an owner of a Class Policy? You are the owner
of a Class Policy if you currently have or previously held a direct
or indirect ownership interest in any Class Policy. If you have any
questions regarding ownership, please visit the Settlement website
or contact the Settlement Administrator.
What does the Settlement provide? The Settlement provides for cash
payments that will be distributed on a pro rata basis from a fund
of up to $123,074,128.32. In addition, John Hancock has agreed not
to increase COI rate scales on Class Policies for a period of five
years or more, and has agreed not to challenge the validity of the
Class Policies on various grounds. For more details, visit
www.HancockCOISettlement.com.
What are my options? You can do nothing, exclude yourself, or
object to the Settlement.
Do nothing. You will automatically receive payment in the mail and
the other non-cash benefits if you are entitled to them. You will
give up your right to sue or continue to sue John Hancock for the
claims in this lawsuit.
Exclude yourself. You will not receive a payment or any other
benefits of the Settlement. You will keep your right to sue John
Hancock at your own expense and with your own attorney for the
claims in this lawsuit. Your exclusion request must follow the
specific format required by the Court. For more information on how
to exclude yourself from the Settlement please visit the Settlement
website or contact the Settlement Administrator.
Object. If you do not exclude yourself from the Settlement Class,
you may object or tell the Court what you don't like about the
Settlement.
Exclusion requests and objections must be sent to Hancock COI
Settlement, c/o JND Legal Administration, P.O. Box 91398, Seattle,
WA 98111, postmarked by March 28, 2022. For more details about your
rights and options and how to exclude yourself or object, go to
www.HancockCOISettlement.com.
What happens next? The Court will hold a Fairness Hearing on May
17, 2022 at 2:30 p.m. at the Daniel Patrick Moynihan United States
Courthouse, 500 Pearl Street, New York, NY 10007-1312, to consider
whether to approve the Settlement, Class Counsel's attorneys' fees
and expenses (not to exceed 33% of the value of the benefits
provided by the Settlement), and incentive awards (up to $25,000
per Plaintiff). The Court has appointed Susman Godfrey L.L.P. as
Class Counsel. Class Counsel will answer any questions that the
Court may have. You or your attorney may ask to speak at the
hearing at your own expense, but you don't have to.
How do I get more information? For more information and to view the
full notice, go to www.HancockCOISettlement.com, or contact the
Settlement Administrator by writing Hancock COI Settlement, c/o JND
Legal Administration, P.O. Box 91398, Seattle, WA 98111, or calling
1-877-389-2130.
Please do not contact the Court. [GN]
JOHNSON CONTROLS: Faces Suits Over Toxic Foam Product
------------------------------------------------------
Johnson Controls International PLC disclosed in its Form 10-Q
Quarterly Report for the quarterly period ended December 31, 2021,
filed with the Securities and Exchange Commission on February 2,
2022, that a number of class action lawsuits were filed against the
company alleging that its firefighting foam products contain or
break down into the toxic chemicals perfluorooctane sulfonic acid
and perfluorooctanoic acid and/or other perfluoroalkyl and
polyfluoroalkyl substances.
Two of the company's subsidiaries, Chemguard and Tyco Fire
Products, have been named, along with other defendant
manufacturers, suppliers and distributors, and, in some cases,
certain subsidiaries of the company affiliated with Chemguard and
Tyco Fire Products, in a number of class action and other lawsuits
relating to the use of fire-fighting foam products by the U.S.
Department of Defense and others for fire suppression purposes and
related training exercises.
Plaintiffs generally allege that the firefighting foam products
contain or break down into the chemicals PFOS and PFOA and/or other
PFAS compounds and that the use of these products by others at
various airbases, airports and other sites resulted in the release
of these chemicals into the environment and ultimately into
communities' drinking water supplies neighboring those airports,
airbases and other sites.
Plaintiffs generally seek compensatory damages, including damages
for alleged personal injuries, medical monitoring, diminution in
property values, investigation and remediation costs, and natural
resources damages, and also seek punitive damages and injunctive
relief to address remediation of the alleged contamination.
Johnson Controls International PLC is into engineering,
manufacturing and commissioning building products and systems based
in Cork, Ireland.
JUUL LABS: Faces Gilmer Suit Over E-Cigarette Campaign to Youth
---------------------------------------------------------------
GILMER COUNTY COMMISSION, GILMER 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-00884 (N.D.
Cal., February 11, 2022) is a class action against the Defendants
for negligence, gross negligence, and violations of West Virginia
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.
Gilmer County Commission is a school district with its offices
located at 10 Howard Street, Glenville, 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
KONINKLIJKE PHILIPS: CPAP Devices "Defective," Stillman Suit Says
-----------------------------------------------------------------
EARL STILLMAN, individually and on behalf of all others similarly
situated, Plaintiff v. KONINKLIJKE PHILIPS N.V.; PHILIPS NORTH
AMERICA LLC; PHILIPS HOLDING USA, INC.; and PHILIPS RS NORTH
AMERICA LLC, Defendants, Case No. 1:22-cv-00124 (W.D. Tex.,
February 11, 2022) is a class action against the Defendants for
strict product liability, strict liability, negligence, breach of
implied warranty of merchantability, and negligent
misrepresentation.
According to the complaint, the Defendants manufactured and sold
Continuous Positive Airway Pressure (CPAP) and BiLevel Positive
Airway Pressure (BiLevel PAP) devices and mechanical ventilators
for sleep and home respiratory care, which contain polyester-based
polyurethane sound abatement foam (PE-PUR Foam). The Defendants
recalled CPAP and BiLevel PAP devices and mechanical ventilators
containing PE-PUR Foam because they determined that (a) the PE-PUR
Foam was at risk for degradation into particles that may enter the
devices' pathway and be ingested or inhaled by users, and (b) the
PE-PUR Foam may off-gas certain chemicals during operation health
risks associated to the devices. After, and as a result of using
the Defendants' alleged defective device, the Plaintiff was
injured, resulting in severe mental and physical pain and
suffering.
Koninklijke Philips N.V. is a health technology company with its
principal executive offices at Philips Center, Amstelplein 2, 1096
BC Amsterdam, The Netherlands.
Philips North America LLC is a health technology company with its
principal place of business located at 222 Jacobs Street, Floor 3,
Cambridge, Massachusetts.
Philips Holding USA, Inc. is a holding company and sole member of
Philips NA, with its principal place of business located at 222
Jacobs Street, Floor 3, Cambridge, Massachusetts.
Philips RS North America LLC is a company that manufactures and
markets medical devices with its principal place of business
located at 6501 Living Place, Pittsburgh, Pennsylvania. [BN]
The Plaintiff is represented by:
James A. Rodman, Esq.
5608 Parkcrest., Ste. 200
Austin, TX 78731
Telephone: (512) 481-0400
Facsimile: (512) 481-0500
E-mail: JimRodman@Rodmanlawoffice.com
LIFEVANTAGE CORP: Class Certification Hearing Pending in D. Conn.
-----------------------------------------------------------------
Lifevantage Corp. disclosed in its Form 10-Q Quarterly Report for
the quarterly period ended December 31, 2021, filed with the
Securities and Exchange Commission on February 1, 2022, that a
motion for class certification was filed by the plaintiff but the
court has not set a hearing for the motion.
On January 24, 2018, a purported class action was filed in the
United States District Court for the District of Connecticut,
entitled "Smith v. LifeVantage Corp.," Case No. 3:18-cv-a35 (D.
Connecticut filed Jan. 24, 2018). In this action, plaintiffs
alleged that the company, its Chief Executive Officer, Chief Sales
Officer and Chief Marketing Officer operated a pyramid scheme in
violation of a variety of federal and state statutes, including the
Racketeer Influenced and Corrupt Organizations (RICO) Act and the
Connecticut Unfair Trade Practices Act.
On April 16, 2018, the company filed motions with the court to
dismiss the complaint against LifeVantage, dismiss the complaint
against the company's executives, transfer the venue of the case
from the State of Connecticut to the State of Utah, and contest
class certification.
On July 23, 2018, the parties filed a stipulation with the Court
agreeing to transfer the case to the Federal District Court for
Utah. On September 20, 2018, plaintiffs filed an amended complaint
in Utah. As per the parties stipulated agreement, plaintiffs'
amended complaint dropped the RICO and Connecticut state law claims
and removed the company's Chief Sales Officer and Chief Marketing
Officer as individual defendants (the former Chief Executive
Officer remains a defendant in the case). The plaintiffs' amended
complaint added an antitrust claim, alleging that the company
fraudulently obtained patents for its products and is attempting to
use those patents in an anti-competitive manner.
The company filed a motion to dismiss the amended complaint on
November 5, 2018, plaintiffs filed a response to the company's
Motion to Dismiss on December 17, 2018, and the company filed a
reply brief on January 10, 2019. The court ruled on the motion on
December 5, 2019, dismissing three of the Plaintiff's four claims,
including the antitrust claim, unjust enrichment claim, and the
securities claim for the sale of unregistered securities. On
December 19, 2019, plaintiffs filed a second amended complaint
which included three causes of action, including a 10(b)(5)
securities fraud claim, and renewed claims relating to the sale of
unregistered securities and unjust enrichment.
LifeVantage filed a motion to dismiss the second amended complaint
on January 28, 2020, and with the Motion fully briefed by the
parties as of March 17, 2020, the court decided the matter on the
parties' briefs only on November 25, 2020. In its decision, the
Court dismissed with prejudice the plaintiffs' Section 12(1) claim
(sale of an unregistered security), because the Court concluded the
claim is time-barred.
The Court also dismissed the plaintiffs' claim for unjust
enrichment against LifeVantage without prejudice, and the
plaintiffs did not amend their complaint following the Court's
order to re-plead unjust enrichment. The court found that the
plaintiffs had sufficiently pled their claim under Section 12(2)
(offer to sell a security that misstates or omits a material fact
by means of a prospectus or oral communication).
LifeVantage filed its Answer to the Second Amended Complaint on
December 23, 2020, responding to the plaintiffs' remaining
securities claims. On February 2, 2021, the court issued an amended
scheduling order that reflects the parties' agreement on a schedule
for discovery and other litigation matters. Initial discovery has
begun and will continue per the amended scheduling order.
On June 15, 2021, the plaintiffs filed their motion for class
certification, and on July 13, 2021, the defendants, including
LifeVantage Corporation, filed their opposition brief that opposed
class certification. On July 27, 2021, the plaintiffs filed their
reply to LifeVantage's opposition brief. The court has not yet set
a hearing for the motion for class certification.
Lifevantage Corp. is a company into nutrigenomics based in Utah.
LUMENTUM HOLDINGS: Karri Securities Suit Pending in N.D. Cal.
-------------------------------------------------------------
Lumentum Holdings Inc. disclosed in its Form 10-Q Quarterly Report
for the quarterly period ended January 1, 2022, filed with the
Securities and Exchange Commission on February 3, 2022, that the
case captioned "SaiSravan B. Karri v. Oclaro, Inc., et al.," No.
3:18-cv-03435-JD filed in the United States District Court for the
Northern District of California on June 9, 2018, respectively is
still pending in court. Lumentum acquired Oclaro Inc. in December
2018.
The lawsuits generally alleges, among other things, that Oclaro and
its directors violated Section 14(a) of the Securities Exchange Act
of 1934, as amended and Rule 14a-9 promulgated thereunder by
disseminating an incomplete and misleading Form S-4, including
proxy statement/prospectus. The lawsuit further alleged that
Oclaro's directors violated Section 20(a) of the Exchange Act by
failing to exercise proper control over the person(s) who violated
Section 14(a) of the Exchange Act. Karri purports to seek, among
other things, damages to be awarded to the plaintiff and any class,
if a class is certified, and litigation costs, including attorneys'
fees. A lead plaintiff and counsel has been selected, and an
amended complaint was filed on April 15, 2019, which also named
Lumentum as a defendant.
A motion to dismiss the amended complaint was granted in part and
denied in part by the court on October 8, 2020. On December 1,
2020, defendants answered the amended complaint. On December 23,
2020, defendants filed a motion for leave to file a motion for
reconsideration of the Court's October 8th order on the motion to
dismiss, which was denied on January 29, 2021. On June 22, 2021,
the Court granted the parties' stipulation to dismiss Lumentum as a
defendant from the action.
On September 17, 2021, lead plaintiff in the Karri action filed a
second amended complaint. Oclaro moved to stay discovery in light
of said complaint, and on January 11, 2022 the court struck it as
untimely, terminated Oclaro's motions to dismiss as moot, and
lifted the stay.
Lumentum Holdings Inc. is a provider of optical and photonic
products based in California.
LUMENTUM HOLDINGS: Securities Suits Over Merger Deal Dismissed
--------------------------------------------------------------
Lumentum Holdings Inc. disclosed in its Quarterly Report on Form
10-Q for the quarterly period ended January 1, 2022, filed with the
Securities and Exchange Commission on February 3, 2022, that two
class action lawsuits were voluntarily dismissed with prejudice.
In connection with the company's acquisition of Oclaro, seven
lawsuits were filed by purported stockholders of Oclaro challenging
the proposed merger. Two of the seven suits were putative class
actions filed against Oclaro, its directors, Lumentum, Prota Merger
Sub, Inc. and Prota Merger, LLC: "Nicholas Neinast v. Oclaro, Inc.,
et al.," Case No. 3:18-cv-03112-VC, in the United States District
Court for the Northern District of California (filed May 24, 2018)
and Adam Franchi v. Oclaro, Inc., et al., No. 1:18-cv-00817-GMS, in
the United States District Court for the District of Delaware
(filed June 9, 2018). Both lawsuits were voluntarily dismissed with
prejudice.
Lumentum Holdings Inc. is a provider of optical and photonic
products based in California.
MAHWAH, NJ: Faces Class Action Over Contamination in Drinking Water
-------------------------------------------------------------------
Michelle Rotuno-Johnson, writing for Patch, reports that a Mahwah
resident is seeking reimbursement for residents who bought bottled
water after the township warned of acid contamination above state
standards at a well supplying drinking water.
In late January, the borough water department alerted residents
that water in one of the township's wells exceeded state levels for
a certain contaminant. Levels of perfluorooctanesulfonic acid
(PFOS) in 2021 were 0.016 micrograms per liter, which is 0.003
micrograms higher than the state standard of 0.013 micrograms per
liter.
The township said fixing the well could take up to 18 months. The
township's notice also advised residents who had certain health
concerns to seek advice from doctors about drinking the water.
Shenell Harris filed the class action complaint against the
township in New Jersey Superior Court, Bergen County on Feb 8.
Court documents show she is asking the court to order Mahwah
Township to reimburse customers who bought bottled water or visited
the doctor after the PFOS contamination. The complaint also asks
the court to shut down Well #19, the source of the contamination.
Lawyer Michael A. Galpern, who represents Harris, said, "The water
customers have no responsibility for the violation of PFOS water
standards in their tap water. These customers pay their water bills
and it is not fair that these customers should now have to bear the
costs of doctor consultations or bottled water when they simply
followed the instructions in the Mahwah Water Department notice."
Over time, people who drink water that exceeds standard levels of
PFOS could experience problems with their kidney, liver, immune
system, and endocrine system, the township said in the letter.
Pregnant women who drink water with higher levels of PFOS risk
their infant developing problems.
Harris filed the lawsuit on behalf of everyone who received the
notice, with a sub-category for people who have certain health
concerns, have an infant, are pregnant, are elderly, or have a
severely compromised immune system.
Harris is represented by two law firms: DeNittis Osefchen & Prince
of Marlton, and Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom &
Sinnins, P.C. of Voohees. [GN]
MARION COUNTY, IN: Settles Improper Jail Detention Class Action
---------------------------------------------------------------
Top Class Actions reports that Indianapolis and Marion County,
Indiana, officials agreed to a settlement to resolve claims that
individuals were detained for too long in county sheriffs' jail
facilities.
The settlement benefits individuals who were detained by the Marion
County sheriff for 12 hours or longer after legal authority ceased
between June 6, 2014, and Nov. 19, 2021. This could include
detainees held longer than 72 hours or those held after posting
bond or bail.
According to the settlement agreement, there are 15,083 jail stays
included under this definition.
The Marion County Sheriff's Office serves Indianapolis and other
cities within the county by managing jail facilities, providing
emergency dispatch, serving court orders, and more. Unfortunately,
the office may violate state law by detaining people for longer
than is allowed.
The Marion County class action lawsuit contends that individuals
are incarcerated for "unreasonable periods of time" due to the
county sheriff's policy of 72-hour release time periods. Due to
these policies, detainees such as the plaintiffs were allegedly
held after their release was ordered or after legal authority for
their detention ceased.
Instead of releasing detainees at the proper time, Marion County
sheriff's officials allegedly re-arrest individuals and detain them
for longer than allowed. These issues are made worse by computer
errors which fail to record bail payments and other important
events which would hasten release, the plaintiffs contend.
"Due to these above policies and procedures, it is not uncommon for
prisoners who have been released by the courts [. . .] to be held
by the Marion County Sheriff longer than legally authorized,
including days, past the time they should have been released," the
class action lawsuit contends.
Marion County, Indianapolis, and the Marion County sheriff haven't
admitted wrongdoing but agreed to settle the claims against them
for an undisclosed settlement amount.
Under the terms of the settlement, Class Members can collect $40
for each hour they were held over the detention limit at Marion
County Sheriff jails.
According to the settlement agreement, the 15,083 jail stays
included in the Class definition resulted in 175,814 hours eligible
for compensation.
If all these hours are claimed, Marion County could pay over $7
million to improperly detained individuals.
The deadline for exclusion and objection is April 27, 2022.
The final approval hearing for the Marion County improper detention
settlement is scheduled for July 14, 2022.
In order to receive a payment from the settlement, Class Members
must file a valid claim form by April 27, 2022.
Who's Eligible
The settlement benefits individuals who were detained by the Marion
County sheriff for 12 hours or longer after legal authority ceased
between June 6, 2014, and Nov. 19, 2021. This could include
detainees held longer than 72 hours or those held after posting
bond or bail.
Potential Award
Varies
Proof of Purchase
No proof of purchase applicable
Claim Form
NOTE: If you do not qualify for this settlement do NOT file a
claim.
Remember: you are submitting your claim under penalty of perjury.
You are also harming other eligible Class Members by submitting a
fraudulent claim. If you're unsure if you qualify, please read the
FAQ section of the Settlement Administrator's website to ensure you
meet all standards (Top Class Actions is not a Settlement
Administrator). If you don't qualify for this settlement, check out
our database of other open class action settlements you may be
eligible for.
Claim Form Deadline
04/27/2022
Case Name
Driver v. Marion County Sheriff, et al., Case No.
1:14-cv-02076-RLY-MJD, in the U.S. District Court for the Southern
District of Indiana
Final Hearing
07/14/2022
Settlement Website
MarionDetentionSettlement.com
Claims Administrator
Marion County IN OverDetention Class Settlement Administrator
c/o Rust Consulting, Inc – 7540
PO Box 2599
Faribault, MN 55021-9599
877-294-0756
Class Counsel
Richard A. Waples
WAPLES & HANGER
John Young
YOUNG & YOUNG
Defense Counsel
Anne Harrigan
CHIEF LITIGATION COUNSEL [GN]
MARYLAND MGMT: Court Vacates Dismissal of All of Simmons' Claims
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In the case, BRITTANY SIMMONS, ET AL. v. THE MARYLAND MANAGEMENT
COMPANY, ET AL., Case No. 1680 (Md. App.), Judge Deborah S. Eyler,
writing for the Court of Special Appeals of Maryland, vacated the
judgment of the Circuit Court for Baltimore City granting motions
to dismiss all claims for failure to state a claim for which relief
can be granted.
I. Introduction
In the appeal, the Appellants ("Tenants") are six people who at one
time rented Maryland residential properties either owned or managed
by certain of the Appellees ("Landlords"). The other Appellees are
lawyers, law firms, and the collection agency employer of one of
the lawyers ("Lawyers"), who sued each Tenant for back rent in the
District Court of Maryland. Those lawsuits, filed in several
Maryland counties, all were brought more than three years after the
Tenants breached their leases. Although the limitations period for
an action for back rent on a residential lease is three years, the
leases governing the tenancies included a clause entitled "Statute
of Limitations" that purported to apply a 12-year limitations
period to causes of action arising from them ("Statute of
Limitations Clauses").
In the Circuit Court for Baltimore City, the Tenants filed a
putative class action against the Landlords and the Lawyers.
Various combinations of Tenants alleged that the Statute of
Limitations Clauses were invalid and unenforceable and that the
actions for back rent were time-barred.
They further alleged that by including the Statute of Limitations
Clauses in the leases and acting to enforce them, the Landlords
violated Maryland Code (1974, 2015 Repl. Vol., 2021 Supp.) Section
8-208 of the Real Property Article ("RP"); and that by filing
actions to recover time-barred debt and attempting to enforce or
actually enforcing judgments they obtained, the Landlords and the
Lawyers violated Maryland Code (1973, 2020 Repl. Vol.), Section
5-1202(a) of the Courts and Judicial Proceedings Article ("CJP")
and Maryland Code (1975, 2013 Repl. Vol., 2015 Supp.), Section
14-202(8) of the Commercial Law Article ("CL"), the latter being a
part of the Maryland Consumer Debt Collection Act ("MCDCA"). On the
same basis, the Tenants alleged that the Landlords violated CL
Sections 13-301(14)(iii) and 13-303(5), parts of the Maryland
Consumer Protection Act ("MCPA").
The Tenants sought damages for the statutory violations. In
addition, various combinations of the Tenants sought declaratory
and injunctive relief. Finally, the Tenants sought attorneys'
fees.
II. Background
In Tipton v. Partner's Management Co., 364 Md. 419 (2001), Tipton's
landlord sued him for back rent seven years after he breached the
lease. Tipton raised the three-year statute of limitations in CJP
Section 5-101 as a defense. The landlord countered that because the
word "(SEAL)" appeared next to the signature line, the lease was a
"contract under seal," to which the 12-year limitations period in
CJP Section 5-102(a)(5) applied. The District Court agreed with the
landlord and entered judgment against Tipton. Eventually, the case
reached the Court of Appeals, which reversed.
Eighteen years later, the Court of Appeals decided Smith v.
Wakefield, 462 Md. 713 (2019). Like Tipton, Smith had been party to
a residential lease and was sued for back rent seven years after he
breached the lease. Smith's lease, unlike Tipton's, included a
Statute of Limitations Clause. At the conclusion of the majority
opinion, the Court summarized its holdings as follows: "We hold:
(1) The three-year period of limitations set forth in CJ Section
5-101 governs actions for back rent under residential leases,
regardless of whether the lease includes provisions that purport to
convert it into a contract under seal. (2) The three-year period of
limitations that applies to a back rent action under a residential
lease is not subject to waiver, in light of RP Section
8-208(d)(2)."
Five days after the Court of Appeals filed its opinion in Smith,
Tenants Simmons and Scoville brought the instant putative class
action suit. The operative complaint is the Third Amended
Complaint, which added four more Tenants as plaintiffs. Each Tenant
had entered into a standard form residential lease with one of the
Landlords sometime after the Court of Appeals decided Tipton but
before it decided Smith. Each lease contained the same Statute of
Limitations Clause as in Smith, stating that the lease is a
contract under seal and is subject to a 12-year limitations
period.
In the Third Amended Complaint, the Tenants alleged, in essence,
that the holdings in Smith reflected the state of the law when
Tipton was decided and afterward. They asserted that back-rent
actions on residential leases are and always have been subject to a
three-year limitations period that cannot be increased to twelve
years by language purporting to make the lease a contract under
seal. Nor can the three-year limitations period be increased to
twelve years by an agreement within the lease, as that runs counter
to the anti-waiver provision of RP Section 8-208(a)(2). What is
more, they alleged, by 2016, the General Assembly had enacted CJP
Section 5-1202(a), prohibiting consumer debt collectors from
initiating actions to recover time-barred debt.
The Third Amended Complaint included allegations seeking class
action status for the Plaintiffs and identifying various
subclasses. The "Lease Subclass," to which all the Tenants belong,
consists of those individuals who entered into a lease with a
Statute of Limitations Clause purporting to make the lease a
specialty to which a twelve-year limitations period applied. The
"Tenant Subclass," which includes all the Tenants except Smith,
consists of those individuals against whom a debt collection effort
was directed, or a suit was filed after Oct. 1, 2016. The "Judgment
Subclass," comprised of Tenants Simmons, Smith, and Kelly, consists
of those individuals against whom a judgment was entered on a suit
filed for back rent. Finally, the "Payment Subclass," also
consisting of Tenants Simmons, Smith, and Kelly, is comprised of
those individuals who paid money or incurred an obligation to pay
money, including attorneys' fees, due to the suits having been
filed against them.
In Count 1, Tenants Simmons, Scoville, Brown, Haut, and Kelly, on
behalf of the Tenant Subclass, sought a declaration that the
District Court suits against them were "beyond the jurisdiction of
the courts in which they were filed" because they were "debt
collection actions" initiated contrary to CJP Section 5-1202(a).
They sought disgorgement of monies collected and "appropriate"
injunctive relief. In Count 2, Tenants Simmons and Kelly, on behalf
of the Judgment Subclass, sought a declaration that the judgments
against them were void and unenforceable, based on CJP Section
5-1202(a), and sought disgorgement, an order enjoining enforcement
of the judgments, and "appropriate" injunctive relief. In Count 3,
all the Tenants, on behalf of the Lease Subclass, sought a
declaration that the Statute of Limitations Clauses in their leases
were contrary to Maryland law and unenforceable and sought
injunctive remedies including requirements that other tenants who
entered into leases with Statute of Limitations Clauses be informed
that they are invalid. They also sought disgorgement and attorneys'
fees and costs.
In the next three counts of the Third Amended Complaint, the
Tenants sought damages for statutory violations. In Count 4,
brought under the MCDCA by all the Tenants on behalf of the Tenant,
Judgment, and Payment Subclasses, the Tenants, quoting Spencer v.
Henderson-Webb, Inc., 81 F.Supp.2d 582, 594-95 (D. Md. 1999),
alleged that the Landlords and Lawyers had filed the District Court
actions against them with "actual knowledge or reckless disregard"
of the existence of their right to do so, given that it was
established that the three-year limitations period to file suit to
collect on debts had expired. In Count 5, Tenants Simmons, Smith,
and Scoville, on behalf of the Tenant, Judgment, and Payment
Subclasses, alleged as to the Landlords that these MCDCA violations
were per se violations of the MCPA, and that by filing the District
Court suits the Landlords made false representations that
constituted violations of the MCPA as well. In Count 6, Tenants
Simmons, Smith, and Kelly, on behalf of the Payment Subclass,
alleged that by including the Statute of Limitations Clauses in the
leases and attempting to enforce them, the Landlords violated RP
Sections 8-208(d)(2) and (g)(1)-(2), and caused actual damages.
Finally, in Count 7, all the Tenants sought attorneys' fees, citing
Rule 2-703(b). The Tenants demanded a jury trial.
Three separate motions to dismiss were filed: One by the Sagal
Defendants, one by the Beacon Services Defendants, and one by the
Landlords. All agreed that, ordinarily, the statute of limitations
for an action for back rent on a residential lease is three years.
All took the position, however, that when the leases were drafted,
when the suits were filed, and when judgments were obtained and
pursued for enforcement, the law was settled, under Tipton, that a
residential lease could include a clause making it a specialty
governed by a twelve-year limitations period. Until Smith was
decided, they maintained, such a clause did not violate RP Section
8-208(d)(2), and therefore the limitations period for actions for
back rent under the leases was twelve years. Because the back-rent
debts were not time-barred, the Landlords and Lawyers could not
have violated the MCDCA, as they did not claim, attempt, or seek to
enforce a right they knew not to exist; nor could they have
violated CJP Section 5-1202(a), as the suits were filed within the
applicable limitations periods. For the same reasons, the Landlords
did not violate the MCPA. The claims for declaratory and injunctive
relief failed for those reasons as well (and others).
In response, the Tenants maintained that Smith applied
retroactively to their cases, as it did not announce a change in
the Court's interpretation of statutory or common law, and
therefore at all relevant times a clause purporting to convert a
residential lease into a specialty subject to a 12-year limitations
period was invalid and unenforceable; the Landlords and Lawyers
were knowingly filing claims for time-barred debt, in violation of
the MCDCA; the Landlords thereby violated the MCPA and also
violated the MCPA independently because their pursuit of judgments
constituted deceptive trade practices13; the clauses in the leases
violated the anti-waiver provision of RP Section 8-208(a)(2); and
the suits were filed contrary to CJP Section 5-1202(a).
The circuit court heard argument on the motions and thereafter
issued a 43-page memorandum opinion granting the motions on all
counts, for a variety of reasons. It granted motions to dismiss all
claims for failure to state a claim for which relief can be
granted. The appeal followed.
III. Discussion
The Tenants noted a timely appeal, presenting four questions for
review, which the Court of Appeals has condensed, rephrased, and
reordered:
(i) Did the circuit court err by dismissing the statutory
claims on the ground that the actions taken by some or all of the
Landlords and Lawyers in entering into leases with the Tenants and
to collect back rent against them could not subject them to
liability for violations of the MCDCA, the MCPA, or RP Section
8-208(d)?
(ii) Did the circuit court err by dismissing the claims for
declaratory and injunctive relief on the ground that the Tenants
were not entitled to such relief as a matter of law?
(iii) Did the circuit court err by dismissing the claim for
attorneys' fees?
A. Statutory Claims
Counts 4, 5, and 6 of the Third Amended Complaint set forth claims
for violations of the MCDCA (CL Section 14-202(8)), the MCPA (CL
Sections 13-301(14)(iii) and 13-303(5)), and the anti-waiver
provision in RP Section 8-208(d)(2), respectively. As argued on
appeal, these claims rested either fully or in part on the premise
that the various holdings of the Court of Appeals in Smith v.
Wakefield applied retroactively to events occurring before that
opinion was filed. Rejecting that premise, as some or all of the
Defendants had asked it to do, the circuit court ruled that Smith
effected a change in the law from what the Court of Appeals had
announced in Tipton, and therefore the holdings in Smith only
applied prospectively and not to the events in these cases.
In essence, the circuit court determined that until Smith was
decided, Maryland law had not established that a residential lease
provision purporting to make the lease a contract under seal is
invalid and unenforceable; nor had Maryland law established that a
residential lease provision purporting to increase the statute of
limitations from three to twelve years is invalid and unenforceable
as contrary to the anti-waiver provision of RP Section 8-208, and
is unreasonable. On the contrary, the court ruled, the Tipton Court
had communicated by language characterized as a "holding" that the
parties to a residential lease could agree, in the body of the
lease, to make the lease a specialty, increasing the applicable
statute of limitations for claims arising out of the lease to
twelve years. The Landlords and Lawyers had drafted their leases
using language seemingly approved by the Court of Appeals in Tipton
and had pursued their claims for back rent, obtained judgments, and
sought to enforce them with the understanding that the law allowed
them to do so.
1. Claim under the MCDCA - CL Section 14-202(8)
On appeal, the parties argue opposite positions on the issue of
retroactive versus prospective application of Smith v. Wakefield.
It is now clear from the Court of Appeals analysis in Chavis v.
Blibaum & Assocs., P.A., ___ Md. ___, No. 30, Sept. Term 2020, slip
op. at *27 (filed August 27, 2021) (quoting Fontell v. Hassett, 870
F.Supp.2d 395, 407 (D. Md. 2012), however, that the
prospective/retroactive distinction drawn by the parties and the
circuit court is not the correct analysis for deciding whether the
Tenants have stated claims for which relief may be granted under CL
Section 14-202(8) of the MCDCA.
The Court of Appeals explains that on a motion to dismiss for
failure to state a claim for which relief may be granted,
sufficiency of the allegations, not of the evidence, is at issue.
In the case at bar, for purposes of the MCDCA count, it must decide
whether the facts alleged in the Third Amended Complaint, if
supported by evidence as the litigation unfolds, could allow a
trier of fact to find the knowledge element of that statutory
claim. Could the facts alleged support a finding that the Landlords
and Lawyers acted recklessly by pursuing actions for back rent
beyond the three-year limitations period based on a
limitations-extending lease clause the Smith Court later held was
invalid and unenforceable, so as to violate the MCDCA?
The allegations in the Third Amended Complaint meet that challenge,
the Court of Appeals opines. The Tenants specifically alleged that
the Landlords and Lawyers "knowingly intentionally or recklessly
disregarded the facts and the law" and made demands for payment and
filed the suits to recover back rent nevertheless, and that the
Tenants suffered damages as a result. For a claim based on CL
Section 14-202(8), these allegations are sufficient to withstand a
motion to dismiss for failure to state a claim for which relief can
be granted.
2. Claims under the MCPA - CL Sections 13-301 and 13-303
CL Section 13-303 prohibits a person from "engaging in any unfair,
abusive, or deceptive trade practice" in, among other things, "the
collection of consumer debts." CL Section 13-301 defines "unfair,
abusive, or deceptive trade practices." A violation of the MCDCA is
an unfair, abusive, or deceptive trade practice. Accordingly, for
the same reasons the circuit court erred in dismissing the MCDCA
claim, it erred in dismissing the Tenants' per se MCPA violation
claim, the Court of Appeals holds.
First, it opines that if knowledge of falsity were required, the
reasoning that there could be no proof of such knowledge because
Smith did not apply retroactively does not withstand scrutiny.
Second, the Tenants' allegations under the MCPA are not restricted
to statements made in the complaints filed against them in the
District Court. The Court of Appeals concludes that the allegations
of misrepresentations in the leases and the lawsuits, being
distinguishable from the request for attorneys' fees made in
Sayyed v. Wolpoff & Abramson, LLP, 733 F.Supp.2d 635, 648 (D. Md.
2010), are sufficient to support a claim for an independent
violation of the MPCA.
3. Claim under RP Section 8-208
Although the Court in Tipton did not address whether a provision in
a residential lease increasing the statute of limitations to twelve
years runs contrary to the anti-waiver provision of RP Section
8-208(d)(2), the Court in Smith did. It held that the Statute of
Limitations Clause in the lease in that case, which is the same
clause used in all the leases in the present case, in fact violates
that anti-waiver provision. Employing the same retrospective versus
prospective application analysis it used for the MCDCA claim, the
circuit court dismissed Count 6, the Tenants' claim against the
Landlords under RP Section 8-208, on the theory that Smith marked a
change in the law and therefore only applies prospectively.
Assuming that is the correct framework for analysis, the Court of
Appeals disagrees. As it explained, prospective application of an
appellate court's decision only is appropriate when the court is
announcing a clear change in the law and is rejecting a previously
settled legal principle. Here, there was no previously settled
legal principle to reject. Both before and after Tipton, the
question whether a clause purporting to extend the statute of
limitations in a residential lease by making it a contract under
seal would violate the anti-waiver provision of RP Section
8-208(d)(2) was unaddressed and unsettled. Plainly, the Smith
holding that the Statute of Limitations Clause identical to that
used in all the leases in these cases is contrary to the
anti-waiver provision in RP Section 8-208(d)(2) applies
retroactively to the events in the case at bar. Because the Tenants
alleged facts that, if backed by evidence, could support a jury
finding that the Landlords violated the anti-waiver provision,
Count 6 should not have been dismissed.
B. Declaratory & Injunctive Relief
In Counts 1 and 2, the Tenants sought declaratory and injunctive
relief for alleged violations of CJP Section 5-1202(a), which, they
claimed, stripped the District Court of jurisdiction over the
back-rent actions brought there, rendering the judgments entered by
the District Court void. The Court of Appeals addresses those
counts together. Count 3 is based solely on the Statute of
Limitations Clauses in the leases, and the Court of Appeals
addresses it separately.
1. Counts 1 and 2
The Plaintiffs in Count 1, all the Tenants except Smith, alleged
that they entered into leases with the Landlords, were sued for
back rent after the statute of limitations had expired and after
the effective date of CJP Section 5-1202(a), and the suits against
them were not dismissed with prejudice. They sought a declaration
that the suits were filed in violation of CJP Section 5-1202(a) and
for that reason the District Court lacked jurisdiction over the
claims. They requested damages in the form of disgorgement of "all
sums and profits realized from the Named Plaintiffs and Tenant
Subclass Members"; injunctive relief "to prevent further violations
of law or providing benefits to them from illegal activities,"
"reasonable attorney's fees, litigation expenses, and costs"; and
further "appropriate declaratory relief."
In Count 2, Tenants Simmons and Kelly made the same allegations but
added that judgments had been entered against them in the District
Court cases. They sought a declaration that those judgments are
void and unenforceable. In addition to the injunctive relief sought
in Count 1, they sought an injunction prohibiting the Landlords and
Lawyers from acting to enforce those judgments.
The Court of Appeals explains that in the case at bar, the
District Court had jurisdiction over the back-rent cases, even if
they were filed in violation of CJP Section 5-1202(a). The
judgments entered against some of the Tenants in those cases are
not void and cannot be collaterally attacked. The question remains,
however, whether the Tenants still may obtain an injunction
directing the Landlords and Lawyers to disgorge monies received as
a consequence of the suits and prohibiting them from enforcing the
judgments they obtained that have not been executed upon. To answer
that, the Court of Appeals again turns to LVNV v. Finch.
In Finch Court held that although an enrolled judgment obtained by
an unlicensed debt buyer is not void, a judgment debtor may still
have a cause of action under the Maryland consumer protection
statutes governing debt collection for declaratory and injunctive
relief precluding the debt buyer who obtained the judgment while
unlicensed, from enforcing those judgments and for any damages
incurred by the plaintiff as a result of the collection efforts.
In the case at bar, the Court of Appeals must determine whether,
upon proof of any of their claims under the MCDCA or MCPA, the
Tenants may obtain relief of the same type recognized as
recoverable by the Court in Finch: Orders directing the Landlords
and Lawyers to disgorge monies they received as a consequence of
initiating the debt collection actions in violation of CJP Section
5-1202(a) and prohibiting them from enforcing the judgments they
received.
The Court of Appeals opines that if the Tenants succeed in proving,
pursuant to CL Section 14-202(b), that the Landlords and Lawyers
brought the District Court actions for back rent with actual
knowledge that they were time-barred, the court may direct that
monies obtained as a consequence will be disgorged and that all
judgments so obtained may not be enforced. In its ruling, the
circuit court took the position that, as a court in Baltimore City,
it would not have the power to direct that a judgment in another
county is not to be enforced. This is incorrect, as it rests on the
premise that the court lacks jurisdiction to allow a collateral
attack on a judgment of another court. An injunction directing a
party before the court not to take action to enforce a judgment is
not a collateral attack on the judgment. It is an injunction
prohibiting a party over whom the court has personal jurisdiction
in a case over which it has subject matter jurisdiction from taking
certain actions. The court has the power to do so.
2. Count 3
In Count 3, the Tenants asked the circuit court to declare that the
Statute of Limitations Clauses in the leases purporting to extend
the limitations period to twelve years "are contrary to Maryland
law and are unenforceable in any court." The Landlords and Lawyers
moved to dismiss this count on the ground that the Court of Appeals
addressed this issue in Smith and it would serve no useful purpose
for the circuit court to render a declaratory judgment that merely
reiterates a holding of the Court of Appeals. The circuit court
agreed.
The Landlords and Lawyers first argue generally that it will serve
no purpose for the circuit court to state by declaratory judgment a
principle that the Court of Appeals already has spoken on. The
Court of Appeals does not find merit in this argument. A principle
of law need not be new and unaddressed to be a proper subject of a
court's declaration by declaratory judgment.
The second argument the Landlords and Lawyers advance pertains to
certain of the Plaintiffs. They maintain that with respect to Marie
Brown and Lorraine Haut, the circuit court properly dismissed this
claim, and their claim for declaratory and injunctive relief in
Count 1, because their District Court cases were dismissed to their
benefit. The Court of Appeals finds that the status of the District
Court case for back rent against a Tenant as resolved in the
Tenant's favor or unresolved and pending does not necessarily mean
that there is no useful purpose to the Tenant's claim for
declaratory and injunctive relief in the case. At this early stage
of litigation, it does not see these declaratory and injunctive
claims as falling in the rare category of cases warranting
dismissal.
C. Attorneys' Fees
Finally, the Tenants' claim for attorneys' fees in Count 7 was
attendant to their substantive claims in the preceding counts.
Because we are vacating the judgments dismissing those claims, the
Court of Appeals will vacate the judgment dismissing this claim as
well.
IV. Conclusion
Based on the foregoing, the Court of Appeals vacated the judgment
of the Circuit Court for Baltimore City. It remanded the case for
further proceedings consistent with its Opinion. Costs will be paid
by the Appellees.
A full-text copy of the Court's Feb. 4, 2022 Opinion is available
at https://tinyurl.com/48w4s8dx from Leagle.com.
MDL 2741: Renteria Suit Consolidated in Roundup Products Litigation
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In "In Re: Roundup Products Liability Litigation," MDL No. 2741,
Chairperson Karen K. Caldwell of the U.S. Judicial Panel on
Multidistrict Litigation, has entered an order transferring the
case docketed as Renteria v. Monsanto Company, et al., Case No.
2:21−00994, filed in the U.S. District Court for the District of
New Mexico to the U.S. District Court for the Northern District of
California, and assigned to the Honorable Vince Chhabria for
inclusion in the coordinated or consolidated pretrial proceedings.
Renteria moved to vacate the panel's order that conditionally
transferred the case to the Northern District of California for
inclusion in MDL No. 2471. Defendant Monsanto Company opposed the
motion. Plaintiff argued that federal subject matter jurisdiction
over Renteria is lacking, and that her pending motion for remand to
state court should be decided before transfer. Plaintiff also
contended that transfer will not enhance the convenience of the
parties and witnesses or the efficient conduct of the litigation.
The panel has held that jurisdictional objections generally do not
present an impediment to transfer. It further ruled that the
Renteria action involves common questions of fact arising out of
allegations that Monsanto's Roundup herbicide, particularly its
active ingredient, glyphosate, causes non-Hodgkin's lymphoma. Like
the plaintiffs in the MDL, Renteria alleges that she suffers from
non-Hodgkin's lymphoma caused by exposure to Roundup herbicide,
notes the panel. Moreover, transfer will serve the convenience of
the parties and witnesses and promote the just and efficient
conduct of the litigation.
A full-text copy of the Court's January 31, 2022 Transfer Order is
available at https://bit.ly/3gN58FB
MDL 2804: Four Suits Consolidated in Prescription Opiate Litigation
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In In re: National Prescription Opiate Litigation, MDL No. 2804,
Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on
Multidistrict Litigation, transfers two cases from the U.S.
District Court for the Southern District of Texas and one case each
from the U.S. District Courts for the District of Puerto Rico and
the Western District of Wisconsin, all to the U.S. District Court
for the Northern District of Ohio and, with the consent of that
court, assigned to the Honorable Dan A. Polster for inclusion in
the coordinated or consolidated pretrial proceedings.
Plaintiffs in the four actions moved to vacate the orders
conditionally transferring their respective actions while
Defendants opposed the motions. Plaintiffs moved to vacate the
conditional transfer orders, principally by arguing that federal
jurisdiction is lacking over their cases. However, the panel
contends that such jurisdictional objections generally do not
present an impediment to transfer.
These action allege improper marketing and distribution of various
prescription opiate medications into states, cities and towns
across the country. Defendants Endo Health Solutions Inc., Endo
Pharmaceuticals Inc., AmerisourceBergen Drug Corporation, CVS
Health, Cardinal Health Inc., McKesson Corporation, Wal-Mart Stores
Inc., Walgreens Boots Alliance, Inc., Janssen Pharmaceutica Inc.,
Ortho-McNeil-Janssen Pharmaceuticals Inc., Actavis LLC, Actavis
Pharma, Inc., Allergan Sales, LLC, Allergan U.S.A., Inc., Cephalon
Inc., Janssen Pharmaceuticals, Inc., Johnson & Johnson, Teva
Pharmaceuticals USA, Inc., and Watson Laboratories Inc. are
pharmaceutical companies and dealers.
The panel held that the four actions share a factual core with the
MDL actions, alleging that the manufacturer and distributor
Defendants' alleged knowledge of and conduct regarding the
diversion of these prescription opiates, as well as the
manufacturers' allegedly improper marketing of the drugs, and falls
within the MDL's ambit. Thus, the transfer will serve the
convenience of the parties and witnesses and promote the just and
efficient conduct of the litigation.
A full-text copy of the Court's February 1, 2022 Order is available
at https://bit.ly/3uQ2Qh7
MDL 2885: Seven Suits Consolidated in 3M Earplug Litigation
-----------------------------------------------------------
In "In Re: 3M Combat Arms Earplug Products Liability Litigation,"
MDL No. 2885, Chairperson Karen K. Caldwell of the U.S. Judicial
Panel on Multidistrict Litigation, entered an order transferring
seven actions pending in the U.S. District Court for the District
of Minnesota (all against 3M Company) to the U.S. District Court
for the Northern District of Florida, and assigned the cases to
Judge Casey Rodgers for inclusion in the coordinated or
consolidated pretrial proceedings.
Plaintiffs in said actions moved to vacate the panel's orders that
conditionally transferred the actions to the Northern District of
Florida for inclusion in MDL No. 2885 or, alternatively, to stay
the panel's decision on the motions until the District of Minnesota
rules on their motions to remand to state court. Defendants 3M
Company and Aearo Technologies, LLC, opposed the motions to
vacate.
The actions in MDL No. 2885 arise out of common allegations that
3M's Combat Arms earplugs were defective, causing plaintiffs to
develop hearing loss and/or tinnitus. Plaintiffs in the MDL No.
2885 actions also allege that defendant Aero falsified test results
for the earplugs and used modified fitting instructions that
provided more protection to users, but that those instructions were
not disclosed to plaintiffs. Like plaintiffs in the MDL No. 2885
actions, plaintiffs in the seven actions allege that the flanges on
Combat Arms earplugs fold back when used as instructed, loosening
the seal in the ear canal of the user. The panel says that these
actions, thus, squarely fall within the ambit of MDL No. 2885.
In opposing transfer, plaintiffs argued only that federal
jurisdiction is lacking, citing rulings in the District of
Minnesota and the MDL No. 2885 transferee court. But of the
plaintiffs in these seven cases, only one moved to remand to state
court, and he has withdrawn that motion. Plaintiffs, therefore,
have undermined their basis for opposing transfer. Furthermore, the
panel has held that jurisdictional issues generally do not present
an impediment to transfer.
A full-text copy of the Court's February 2, 2022 Transfer Order is
available at https://bit.ly/3JkWL0e
MEDIALAB.AI INC: Faces Suufi Suit Over Disclosed Info to Facebook
-----------------------------------------------------------------
MOHAMED SUUFI and SAM KOCH, individually and on behalf of all
others similarly situated, Plaintiffs v. MEDIALAB.AI, INC.,
Defendant, Case No. 2:22-cv-00979 (C.D. Cal., February 11, 2022) is
a class action against the Defendant for violation of the Video
Privacy Protection Act.
According to the complaint, the Defendant disclosed to a third
party, Facebook, the personally identifiable information of the
Plaintiffs and similarly situated persons who used the Defendant's
website, Imgur.com. The Plaintiffs and Class members did not
provide the Defendant with any form of consent to disclose their
PII to third parties.
MediaLab.Ai, Inc. is a video tape service provider and an owner and
operator of website, Imgur.com. [BN]
The Plaintiffs are represented by:
L. Timothy Fisher, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Facsimile: (925) 407-2700
E-mail: ltfisher@bursor.com
MODCUP LLC: Blind Seeks Equal Website Access, Abreu Suit Claims
---------------------------------------------------------------
LUIGI ABREU, individually and on behalf of all others similarly
situated, Plaintiff v. MODCUP LLC, Defendant, Case No.
1:22-cv-01203 (S.D.N.Y., February 11, 2022) is a class action
against the Defendant for violations of the Americans with
Disabilities Act and the New York City Human Rights Law.
According to the complaint, the Defendant has failed to design,
construct, maintain, and operate its website to be fully accessible
to and independently usable by the Plaintiff and other blind or
visually-impaired persons. The Defendant's website, www.modcup.com,
contains access barriers which hinder the Plaintiff and Class
members to enjoy the benefits of its online goods, content, and
services offered to the general public through the website. These
alleged access barriers include, but not limited to: (a) the screen
reader fails to read the "search" and "cart" icon, (b) the screen
reader reads the banner link twice before moving on, (c) the screen
reader fails to read advertisement pop up links and then requires
the use of the cursor to close the advertisement, (d) the screen
reader fails to read the link found on the promotional images, and
(e) the screen reader fails to read the item description link.
The Plaintiff and Class members seek permanent injunction to cause
a change in the Defendant's corporate policies, practices, and
procedures so that the Defendant's website will become and remain
accessible to blind and visually-impaired individuals.
Modcup LLC is an online retail company that conducts business in
New York. [BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
Jarrett S. Charo, Esq.
William J. Downes, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, 24th Floor
New York, NY 10281
Telephone: (212) 595-6200
Facsimile: (212) 595-9700
E-mail: jmizrahi@mizrahikroub.com
jcharo@mizrahikroub.com
wdownes@mizrahikroub.com
MP MATERIALS: Rosen Law Firm Investigates Securities Claims
-----------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, on Feb. 9
announced an investigation of potential securities claims on behalf
of shareholders of MP Materials Corp. (NYSE: MP) resulting from
allegations that MP Materials may have issued materially misleading
business information to the investing public.
SO WHAT: If you purchased MP Materials securities you may be
entitled to compensation without payment of any out of pocket fees
or costs through a contingency fee arrangement. The Rosen Law Firm
is preparing a class action seeking recovery of investor losses.
WHAT TO DO NEXT: To join the prospective class action, go to
http://www.rosenlegal.com/cases-register-2249.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
WHAT IS THIS ABOUT: On February 3, 2022, market analyst Bonitas
Research published a report alleging MP Materials of an abusive
transfer price manipulation scheme with a related party. In
relevant part, the report alleged that a related party "overpaid
for MP concentrates to artificially inflate MP's profits. The 2021
scheme conveniently coincided with the SPAC insider lock-up
expiration so that MP Insiders could sell MP stock at artificially
inflated prices."
On this news, MP Materials' share price dropped more than $3.67, or
over 9%, during intraday trading.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources, or
any meaningful peer recognition. Many of these firms do not
actually litigate securities class actions. Be wise in selecting
counsel. The Rosen Law Firm represents investors throughout the
globe, concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
MYRIAD GENETICS: Sued Over Incorrect Prenatal Screening Results
---------------------------------------------------------------
Corrado Rizzi, writing for ClassAction.org, reports that a proposed
class action alleges the Prequel genetic prenatal screening tests
sold by Myriad Genetics provide incorrect results roughly 85
percent of the time.
DEFENDANT(S)
Myriad Genetics, Inc.
LAW(S)
California Business and Professions Code California Unfair
Competition Law California Consumers Legal Remedies Act
STATE(S)
California
A proposed class action alleges the Prequel genetic prenatal
screening tests sold by Myriad Genetics provide incorrect results
roughly 85 percent of the time.
The 23-page suit says that although Myriad touts its pricey
prenatal screening tests as accurate, the products, which are used
by pregnant women to screen for chromosomal and genetic conditions
that can affect a baby's health, regularly return incorrect results
that indicate a genetic disorder.
According to the complaint, Myriad's genetic tests, a type of
non-invasive prenatal testing, are worth far less than their market
price and, due to the false results, often cause expecting mothers
to be unnecessarily subjected to further, "very invasive"
diagnostic testing, genetic counseling and even the erroneous
termination of a viable pregnancy.
Cited in the filing is a New York Times investigation that found
that for every 15 times a non-invasive prenatal screening correctly
identified a fetal disorder, the testing is wrong 85 times, meaning
that the far majority of all positive results are false positives,
the lawsuit states.
"Despite this inaccurate testing, Defendant falsely advertises
their findings as reliable, accurate and offering peace of mind for
patients regarding the viability of their pregnancies," the case
says. "These false positives can lead to devastating personal
consequences and painful decisions that are premised upon this
wrong information."
The lawsuit states that a non-invasive prenatal screening test such
as Myriad's Prequal product analyzes DNA from the blood of a
pregnant woman to estimate the risk that a fetus will be born with
certain genetic abnormalities. In 2020, Myriad launched its
proprietary "Amplify" technology, which the company claimed
increased the performance of the Prequel test and thereby reduced
the rate of false positive and false negative results, the case
says. The NYT investigation, however, has cast substantial doubt on
the "highly accurate" Prequel tests and similar products, the suit
relays.
In particular, Prequel and other non-invasive prenatal tests are
unable to accurately discover microdeletions like the ones Myriad
Genetics claims its test can correctly detect, the lawsuit says.
According to the case, microdeletions can come with a wide range of
symptoms, including intellectual disability, a shortened life span
and a high infant mortality rate.
"Consumers are therefore paying hundreds of dollars for testing
that is inaccurate and untrustworthy," the complaint alleges.
The lawsuit looks to cover all persons in the United States who
purchased a Prequel prenatal test. [GN]
NATIONAL COLLEGIATE: Court Partly Strikes Expert Report in Golden
-----------------------------------------------------------------
In the case, In re: TASHANNA B. GOLDEN, fka TASHANNA B. PEARSON,
Chapter 7, Debtor. TASHANNA B. GOLDEN, fka TASHANNA B. PEARSON ON
BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs v.
NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-3, NATIONAL COLLEGIATE
STUDENT LOAN TRUST 2006-4 (NCT 2006), GS2 2016-A (GS2),
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY dba AMERICAN
EDUCATION SERVICES, FIRSTMARK SERVICES LLC, Defendants, Case No.
16-40809-ess, Adv. Pro. No. 17-01005-ess (E.D.N.Y.), Judge
Elizabeth S. Stong of the U.S. Bankruptcy Court for the Eastern
District of New York granted in part and denied in part the
Defendants' to strike expert report.
Before the Court is the Motion of the Defendants National
Collegiate Student Loan Trust 2006-4 (NCT 2006) and GS2 2016-A
(GS2) ("NCT"), Pennsylvania Higher Education Assistance Agency
d/b/a American Education Services ("PHEAA"), and Nelnet Servicing,
LLC, doing business as Firstmark Services, for an order pursuant to
Federal Rule of Evidence 702 to strike the expert report of Mark
Kantrowitz, submitted by the Plaintiff Tashanna Golden, in support
of her motion for partial summary judgment.
I. Introduction
Before the Court is the Defendants' Motion to Strike the expert
report of Mr. Kantrowitz, arguing, in substance, that Mr.
Kantrowitz's expert testimony and report impermissibly sets forth
legal opinions and conclusions, and that legal conclusions are the
task of the Court, not an expert witness. They state that "it is
well settled that this is not a proper area for expert testimony
and an expert report that does this must be excluded. Therefore,
the Court should strike the report and not give it any
consideration in ruling on plaintiff's motion for partial summary
motion."
Ms. Golden opposes the Motion to Strike. She argues, in substance,
that Mr. Kantrowitz is an expert in student financial aid and
qualified education loans, and that this expertise and subject
matter, not impermissible legal conclusions, is the subject of his
Report. As she states, Mr. Kantrowitz is not, as the Defendants
claim, offering legal conclusions, or usurping the role of the
Court as the ultimate arbiter of whether or not her loans are
dischargeable. Rather, his testimony provides helpful context to
the Court about how the regulatory scheme governing the
dischargeability of private student loans actually operates.
II. Background
On Feb. 29, 2016, Ms. Golden filed a voluntary petition for relief
under Chapter 7 of the Bankruptcy Code. On Aug. 3, 2016, she
received a discharge in her bankruptcy case. On Dec. 6, 2016, Ms.
Golden filed a motion to reopen her bankruptcy case to permit her
to seek a determination of the dischargeability of her student loan
debt, and related relief. That motion was heard and granted by the
Court on Jan. 5, 2017, and on Jan. 10, 2017, the Court entered an
order reopening Ms. Golden's bankruptcy case to permit her "to seek
a determination of the dischargeability of her student loan debt."
On Jan. 18, 2017, Ms. Golden commenced the adversary proceeding by
filing the Complaint. On Oct. 17, 2017, she filed an Amended
Complaint, adding class action allegations and new parties. In this
action, she seeks "a determination that certain debts that she
incurred as a student are not nondischargeable student loan debts
under Bankruptcy Code Section 523(a)(8)(B), and a finding of
contempt against the Defendants for civil contempt for willful
violations of the bankruptcy discharge injunction."
On July 13, 2020, Ms. Golden filed a Motion for Partial Summary
Judgment. In her Summary Judgment Motion, she seeks, in substance,
an order from the Court declaring that each loan held or serviced
by the Defendants that either exceeded the cost of attendance or
was made to a person who was not attending a Title IV institution
has been discharged by each class member's bankruptcy discharge
order and that the continued collection on such loans is in
violation of Section 524 of the Bankruptcy Code and the applicable
discharge orders.
In their opposition, the Defendants argue, in substance, among
other things, that no class has yet been certified, and several
issues of material fact prevent the Court from granting the Summary
Judgment Motion. In her reply, Ms. Golden argues, in substance,
that she merely seeks a determination to class-wide liability, and
what loans will be subject to this liability, will be determined
later.
The Defendants' Motion to Strike has been addressed extensively by
the parties, in memoranda of law, letter briefs, and argument. The
parties have also conferred, at the suggestion and with the
encouragement of the Court, on pathways to identify and clarify the
issues and, if possible, to identify and limit the areas of
disagreement with respect to Mr. Kantrowitz's Report. To this end,
and at the request of the Court, the Defendants filed a marked
version of Mr. Kantrowitz's Report, identifying the portions that
they argue should be stricken or disregarded and be excluded from
evidence
From time to time, and on Sept. 17, 2021, the Court held pre-trial
and discovery conferences and hearings on the Motion to Strike, at
which Ms. Golden and the Defendants appeared and were heard.
From time to time, and on Sept. 29, 2021, and Nov. 18, 2021, the
Court held further hearings on the Motion, at which the Defendants
and Ms. Golden appeared and were heard, and the parties addressed
the supplemental filings.
And as noted, on Jan. 19, 2022, the Court entered an oral decision
granting in part and denying in part the Motion to Strike, and the
record of that hearing was so-ordered.
III. Discussion
At this stage in these proceedings, it is worth noting where the
parties agree, and where they disagree. Needless to say, they
disagree emphatically as to whether all of Mr. Kantrowitz's Report
should be considered by the Court as part of the record on Ms.
Golden's Motion for Partial Summary Judgment. But they also agree
as to several significant pieces of this picture.
At the outset, Ms. Golden and the Defendants do not dispute that
Mr. Kantrowitz is a highly qualified individual, and specifically,
that he is qualified to testify as an expert on certain matters.
And notably, as the record shows, Mr. Kantrowitz is not a lawyer.
And as Judge Stong confirmed, she will not consider nor be
influenced by a non-lawyer's conclusion or testimony as to
conclusions of law. As a consequence, and again as the counsel
agree, the question on the Motion to Strike is "how that series of
determinations apply in the particular circumstance" of Mr.
Kantrowitz's Report.
Judge Stong turns to the question of whether some or all of Mr.
Kantrowitz's Report should be stricken because it crosses the line
from permissible expert opinion to impermissible legal opinion. As
a preliminary matter, she says, it is worth noting that the Court
may strike or disregard portions of expert testimony that state
legal opinions and conclusions, and consider other, permissible,
expressions of expert opinion that do not cross that line. That is,
the question of whether to strike or disregard Mr. Kantrowitz's
expert report is not a matter of "all or nothing."
As the cases show, where an expert testifies as to "legal opinions
couched as expert testimony," that testimony cannot be considered.
That is, expert testimony that would supplant the role of the court
in interpreting the law and applying the law to the facts, or that
offers a legal opinion on the ultimate issue to be decided, is not
allowed.
First, to be clear, to the extent that Mr. Kantrowitz crosses this
line, his testimony will be excluded from the Court's
consideration. To this extent, the Motion to Strike is granted.
Second, and at the same time, where an expert testifies, based on
his or her experience and expertise, as to matters that may assist
the court, but does not offer legal opinions, that testimony may be
considered. And this does not change merely because the expert's
opinion relates to a topic or subject matter where laws and
regulations also play a role. To the extent that Mr. Kantrowitz
testifies in this way, based on his experience and expertise, his
testimony will not be excluded from the Court's consideration. To
this extent, the Motion to Strike is denied.
Third, and finally, to the extent that an expert's testimony -- in
the case, Mr. Kantrowitz's Report -- simply states or quotes from
legal sources, such as statutes or regulations, or other
references, such as handbooks, survey responses and data reported
to IPEDS, or the parties' submissions including memoranda of law
and letter briefs, that is not a statement of legal opinion, or for
that matter expert opinion, at all, and need not be addressed in
the context of this Motion to Strike. And to this extent as well,
the Motion to Strike is denied.
And finally, for the avoidance of doubt, and with or without an
asserted objection from the Defendants, Judge Stong will not,
directly or indirectly, relinquish her role to ascertain the
applicable law, find the facts, and apply the law to those facts,
as informed by the parties' arguments, the applicable authorities,
and the record.
IV. Conclusion
For the reasons she stated and on the record of the Jan. 19, 2022
hearing, and based on the entire record, Judge Stong granted in
part and denied in part the Defendants' Motion to Strike the expert
report of Mark Kantrowitz.
The Motion to Strike is granted to the extent that the Kantrowitz
Report states legal opinions, interpretations, or conclusions with
respect to statutes, regulations, and other legal authorities, or
alternatively, states a legal opinion on the ultimate issues to be
decided in this adversary proceeding, that would supplant the role
of the court in interpreting the law and applying the law to the
facts, and as identified on the record of the Jan. 19, 2022
hearing, those portions of the Kantrowitz Report will not be
considered by the Court.
The Motion to Strike is denied to the extent that the Kantrowitz
Report states Mr. Kantrowitz's expert opinion, based on his
education, experience, and expertise, as to matters that may assist
the Court, but does not cross the line to state legal opinions,
interpretations, or conclusions.
The Motion to Strike is also denied to the extent that the
Kantrowitz Report states or quotes from legal sources, including
statutes and regulations, and other references, including
handbooks, survey responses and data reported to IPEDS, and the
parties' submissions.
A full-text copy of the Court's Feb. 4, 2022 Memorandum Decision &
Order is available at https://tinyurl.com/2s3fej6f from
Leagle.com.
George F. Carpnello, Esq. -- gcarpinello@bsfllp.com -- Adam Sahw,
Esq., Jenna Smith, Esq., Boies Schiller Flexner LLP, in Albany, New
York, Attorney for Plaintiff Tashanna B. Golden.
H. Peter Haveles, Jr. Esq. -- phaveles@mwe.com -- Emilie O'Toople,
Esq., McDermott Will & Emery, in New York City, Attorneys for
Defendant Pennsylvania Higher Education Assistance Agency.
Lynn E. Swanson, Esq. -- lswanson@jonesswanson.com -- Peter
Freiberg, Esq., Jones Swanson Huddell & Daschbach LLC, in New
Orleans, Louisiana, Attorneys for Plaintiff Tashanna B. Golden
Jason W. Burge, Esq. -- jburge@fishmanhaygood.com -- Fishman
Haygood LLP, in New Orleans, Louisiana, Attorneys for Plaintiff
Tashanna B. Golden.
Joshua B. Kons, Esq. -- joshuakons@konslaw.com -- Law Offices of
Joshua B. Kons, LLC, in Canton, Connecticut, Attorneys for
Plaintiff Tashanna B. Golden.
Gregory T. Casamento, Esq. -- gcasamento@lockelord.com -- R. James
DeRose III, Esq., Locke Lord LLP, in New York City, Attorneys for
Defendants National Collegiate Student Loan Trust 2006-4 (NCT 2006)
and GS2 2016-A (GS2).
J. Matthew Goodin, Esq. -- jmgoodin@lockelord.com -- Locke Lord
LLP, in Chicago, Illinois, Attorneys for Defendants National
Collegiate Student Loan Trust 2006-4 (NCT 2006) and GS2 2016-A
(GS2).
Charles F. Kaplan, Esq. -- ckaplan@perrylawfirm.com -- Perry,
Guthery, Haase & Gessford P.C. L.L.O., in Lincoln, Nebraska,
Attorneys for Defendant Firstmark Services LLC.
Barbara L. Seniawski, Esq. -- barbara@seniawskilaw.com -- The
Seniawski Law Firm PLLC, in New York City, Attorneys for Defendant
Firstmark Services LLC.
NATIONAL FOOTBALL: Commissioner Addressed NFL's Lack of Diversity
-----------------------------------------------------------------
Ryan Gaydos at Fox News reports that Roger Goodell addressed
diversity in the NFL's coaching ranks in a memo to teams, days
after the league said claims made in Brian Flores' class-action
racial discrimination lawsuit were "without merit."
The NFL commissioner underscored the league's commitment to
diversity but said the lack of racial equity in the coaching ranks
was "unacceptable." As of the weekend, the Pittsburgh Steelers'
Mike Tomlin was the lone Black head coach in the league.
Ron Rivera of the Washington Commanders and Robert Saleh of the New
York Jets are the other minority head coaches in the league.
Rivera's parents were Puerto Rican and Mexican and Saleh is of
Lebanese descent and a practicing Muslim.
"Racism and any form of discrimination is contrary to the NFL's
values," the Goodell memo states. "We have made significant efforts
to promote diversity and adopted numerous policies and programs,
which have produced positive changes in many areas, however we must
acknowledge that - particularly with respect to head coaches - the
results have been unacceptable."
"We will reevaluate and examine all policies, guidelines and
initiatives relating to diversity, equity and inclusion, including
as they relate to gender. We are retaining outside experts to
assist in this review and will also solicit input from current and
former players and coaches, advocates and other authorities in this
area. Our goal is simple: make our efforts and those of the clubs
more effective so that real and tangible results will be achieved.
"We understand the concerns expressed by coach Flores and others.
While the legal process moves forward, we will not wait to reassess
and modify our strategies to ensure that they are consistent with
our values and longstanding commitment to diversity, equity and
inclusion. In particular, we recognize the need to understand the
lived experiences of diverse members of the NFL family to ensure
that everyone has access to opportunity and is treated with respect
and dignity."
Goodell also addressed claims Flores made about allegedly being
offered thousands of dollars to lose games while he was with the
Miami Dolphins in 2019, a claim the team emphatically denied.
"We also ask to take seriously any issue relating to the integrity
of NFL games," Goodell said. "These matters will be reviewed
thoroughly and independently. We expect that these independent
experts will receive full cooperation from everyone associated with
the league or any member club as this work proceeds.
"There is much work to do, and we will embrace this moment and
seize the opportunity to become a stronger, more inclusive
league."
Flores filed the lawsuit against the Dolphins, New York Giants,
Denver Broncos and the NFL. He claimed to receive "sham" interviews
while seeking the Giants and Broncos jobs and alleged he was only
being interviewed by teams so they could satisfy the Rooney Rule,
which requires coaching interviews for minorities.
While each team denied Flores' claims, the NFL said the allegations
were "without merit" but didn't say if an investigation is
forthcoming.
"The NFL and our clubs are deeply committed to ensuring equitable
employment practices and continue to make progress in providing
equitable opportunities throughout our organizations," the league
said. "Diversity is core to everything we do, and there are few
issues on which our clubs and our internal leadership team spend
more time. We will defend against these claims, which are without
merit."
Flores' attorneys Douglas H. Wigdor and John Elefterakis put out a
statement in response to Goodell's memo.
"Unfortunately, immediately after Coach Flores filed the class
action lawsuit, the NFL and various teams reflexively, and without
any investigation, denied the detailed allegations set forth in the
60 page complaint. As a result, when we spoke to the national media
the following day we made clear that the NFL should view this class
action lawsuit as an opportunity to engage in real change and
confront the obvious reality," the statement read.
"The statement made today by the Commissioner is, on the surface, a
positive first step, but we suspect that this is more of a public
relations ploy than real commitment to change. For too many years,
the NFL has hidden behind the cover of foundations that were
supposed to protect the rights of Black players and coaches, as
well as law firms and experts that purport to be unbiased and
independent, but are paid for by the NFL. All the while, systemic
racial bias has festered in the NFL's front offices.
"The NFL is now rolling out the same playbook yet again and that is
precisely why this lawsuit was filed. We would be pleased to talk
to the Commissioner about real change, but unfortunately he has not
reached out to us to engage in such a discussion. In fact, nobody
from the NFL has reached out to us. Absent such a discussion
followed by unbiased and concrete change, we believe that a court
or governmental agency must order a federal monitor to oversee the
NFL as the NFL cannot continue to police itself. [GN]
NISSAN MOTOR: "Serious Defects" Cause Engine Failure, Suit Says
---------------------------------------------------------------
Jessy Edwards at topclassactions.com reports that Nissan's Titan
vehicles have a "serious defect" that causes engine failure, as
well as carcinogenic exhaust fumes to leak into the passenger side
of the trucks, a new class action lawsuit alleges.
Plaintiffs James Losapio Jr. and Kathleen B. Losapio filed the
class action complaint against Nissan North America Inc. on Feb. 3
in a Tennessee federal court, alleging breach of warranty.
According to the Texas couple, as many as tens of thousands of
customers who purchased or leased model year 2016-19 Nissan Titan
full-size diesel-powered pickup trucks should be liable for
compensation. They allege that the Nissan Titan vehicles contain
two "dangerous defects."
Firstly, the vehicles feature a diesel exhaust fluid filler tube
located too close to the fuel filler tube.
"The misplacement of the diesel exhaust fluid filler tube can be
catastrophic for the vehicles because if diesel exhaust fluid
contaminates the fuel system it can cause irreparable engine damage
that necessitates thousands of dollars in repairs," they say.
Secondly, the vehicles allegedly suffer from a defective exhaust
system and HVAC system that allows diesel exhaust fumes to enter
the passenger cabin of the vehicles, the lawsuit states.
The couple says that on numerous occasions they have experienced
exhaust and diesel fuel fumes entering the passenger cabin.
"According to the Occupational Safety and Health Administration
diesel exhaust is a mixture of particulates that can cause a
variety of health issues from 'irritation of the eyes and nose,
headaches and nausea to respiratory disease and lung cancer,'" the
lawsuit states.
Plaintiffs Say Fuel Tank Sensor Failed To Detect Presence Of Diesel
Exhaust Fluid Until Permanent Damage Occurred
According to the lawsuit, the Losapios bought their Titan in 2017.
They said, after driving their vehicle for less than 4 years and
for fewer than 16,000 miles, their fuel system was contaminated
with diesel exhaust fluid.
They said their fuel tank sensor failed to detect the presence of
the diesel exhaust fluid in the fuel tank until permanent damage
had occurred.
"As a result, due to the [Defect], Plaintiffs' vehicle requires
over $23,000 in repairs," the lawsuit states.
The couple is suing for breach of warranty, unjust enrichment and
violation of the Texas Deceptive Trade Practices Act. They are
seeking damages, fees, costs and a jury trial.
Last year, Nissan agreed to pay $277.7 million as part of a
settlement resolving claims certain vehicles were equipped with a
defective continuously variable transmission.
The plaintiffs are represented by J. Luke Sanderson of Wampler
Carroll Wilson & Sanderson PC and Eugene Y. Turin and Steven R.
Beckham of McGuire Law PC.
The Nissan Titan Fuel Tank Class Action Lawsuit is Losapio et al.
v. Nissan North America Inc., Case No. 3:22-cv-00072, in the U.S.
District Court for the Middle District of Tennessee. [GN]
ORRKLAHOMA WEST: Patterson FLSA Suit Removed to W.D. Oklahoma
-------------------------------------------------------------
The case styled MICAH PATTERSON and JESSE PETTY, individually and
on behalf of all others similarly situated v. ORRKLAHOMA WEST, LLC
d/b/a ORR NISSAN WEST, Case No. CJ-2022-221, was removed from the
District Court of Oklahoma County, State of Oklahoma, to the U.S.
District Court for the Western District of Oklahoma on February 11,
2022.
The Clerk of Court for the Western District of Oklahoma assigned
Case No. 5:22-cv-00119-J to the proceeding.
The case arises from the Defendant's alleged failure to properly
pay wages and overtime in violation of the Fair Labor Standards
Act.
Orrklahoma West, LLC, doing business as Orr Nissan West, is an
automobile dealer based in Oklahoma City, Oklahoma. [BN]
The Defendant is represented by:
Elaine R. Turner, Esq.
HALL, ESTILL, HARDWICK, GABLE, GOLDEN & NELSON, P.C.
100 North Broadway, Suite 2900
Oklahoma City, OK 73102-8865
Telephone: (405) 553-2828
Facsimile: (405) 553-2855
E-mail: eturner@hallestill.com
PARTY CITY CORP: Faces Class Suit Over Failure to Pay Proper Wages
------------------------------------------------------------------
Katie Clarey, writing for HRDive, reports that Party City failed to
pay a group of employees on time, in violation of New York labor
law, a class action lawsuit alleged (Guzman v. Party City
Corporation, No. 22-cv-00666 (S.D.N.Y., Jan. 25, 2022)).
The plaintiff worked in two New York Party City stores, and was
paid an hourly rate of $16. His duties included unpacking and
sorting inventory, reshelving returned items, stocking the aisles
and sweeping and mopping. The plaintiff alleged the stores paid him
every two weeks and therefore violated New York law, which states
that manual laborers must be paid weekly.
The worker's associates performed similar duties and were paid the
same way. The lawsuit estimated that at least 40 workers could be
eligible to join the lawsuit. Party City did not respond to request
for comment by press time.
Dive Insight:
It's not uncommon to see a class action lawsuit connected with
allegations related to pay, and there are a few
compensation-related topics that tend to produce many such
lawsuits.
Overtime is one such example. Last February, Jimmy John's agreed to
pay $1.8 million to a group of employees who claimed the restaurant
misclassified them as managerial workers and wrongly denied them
overtime pay. Similarly, a group of Kohl's assistant store managers
petitioned a court to sign a $2.9 million agreement last year that
settled claims that the retailer failed to pay them overtime as
required by the Fair Labor Standards Act.
Another common topic of compensation-related class action suits is
auto-deducted meal breaks. In 2019, a California electronics
company paid $4.9 million to 1,300 nonexempt employees following an
auto-deducted meal breaks suit. Sprint paid $4 million to 2,290
former retail workers later that year after the workers alleged the
store made illegal deductions from their pay.
As far as New York's labor law and the specific requirement cited
in the lawsuit against Party City, the law stipulates that
employers pay manual workers on a weekly basis, according to the
New York Department of Labor. Clerical and other workers must be
paid "at least twice per month."
The department says in guidance that large companies may apply for
permission to pay manual workers bi-weekly if the company has had
an average of 1,000 workers in New York for at least three years.
The department considers financial and compliance factors when
reviewing requests for permission, and it does not grant requests
to organizations whose manual workers are represented by a union,
unless the union gives consent. [GN]
PRECISION METAL: Trinh Wage-and-Hour Suit Goes to S.D. California
-----------------------------------------------------------------
The case styled VY TRINH, individually and on behalf of all others
similarly situated v. PRECISION METAL PRODUCTS, INC.; HBD
INDUSTRIES, INC.; and DOES 1-50, inclusive, Case No.
37-2022-00000005-CU-CE-CTL, was removed from the Superior Court of
the State of California for the County of San Diego to the U.S.
District Court for the Southern District of California on February
11, 2022.
The Clerk of Court for the Southern District of California assigned
Case No. 3:22-cv-00199-DMS-KSC to the proceeding.
The case arises from the Defendants' alleged violations of the
California Labor Code, the California Government Code, the
California Public Policy, and the Private Attorneys General Act
including wrongful termination, disability discrimination, unfair
competition, failure to pay minimum wages, failure to pay overtime,
failure to provide required meal periods, failure to provide
required rest periods, failure to provide accurate itemized
statements, and failure to provide wages when due.
Precision Metal Products, Inc. is a manufacturer of high precision
machining components, with its principal executive office in
Dublin, Ohio.
HBD Industries, Inc. is an industrial manufacturing company,
headquartered in Dublin, Ohio. [BN]
The Defendants are represented by:
Mark S. Posard, Esq.
Tatiana Dupuy, Esq.
Annette L. Rose, Esq.
GORDON REES SCULLY MANSUKHANI, LLP
101 W. Broadway, Suite 2000
San Diego, CA 92101
Telephone: (619) 696-6700
Facsimile: (619) 696-7124
E-mail: mposard@grsm.com
tdupuy@grsm.com
arose@grsm.com
RECONNAISANCE ENERGY: Faces Shareholders' Class Action Lawsuits
---------------------------------------------------------------
Reconnaissance Energy Africa Ltd. (the "Company" or "ReconAfrica")
(TSXV:RECO) (OTCQX:RECAF) (Frankfurt: 0XD) and certain of its
current and former officers, directors and third-party contractors
have been named as defendants in two almost identical purported
class action lawsuits filed by Company shareholders in the United
States District Court in Brooklyn, New York. The lawsuits were
filed in the wake of a third, almost identical lawsuit identified
by the Company in an October 28, 2021, press release and
subsequently voluntarily dismissed by that plaintiff on November 9,
2021. The pending lawsuits have been consolidated by the court,
which appointed a lead plaintiff and lead counsel to represent the
purported class members. The Company intends to vigorously defend
the lawsuits.
About ReconAfrica
ReconAfrica is a Canadian oil and gas company engaged in the
opening of the newly discovered deep Kavango Sedimentary Basin, in
the Kalahari Desert of northeastern Namibia and northwestern
Botswana, where the Company holds petroleum licences comprising
approximately 8.5 million contiguous acres. In all aspects of its
operations, ReconAfrica is committed to minimal disturbance of
habitat, in line with best international standards, and will
implement environmental and social best practices in all of its
project areas.
Neither the TSXV nor its Regulation Services Provider (as that term
is defined in policies of the TSXV) accepts responsibility for the
adequacy or accuracy of this release. [GN]
SAINT-GOBAIN PERFORMANCE: Class Action Settled in PFOA Suit
-----------------------------------------------------------
cbs6albany.com reports that six years after a class action lawsuit
was filed on behalf of the Hoosick Falls community, there's word
the $65 million PFOA settlement is now a done deal.
The settlement comes overnight, after many claims the drinking
water in the Rensselaer County village was contaminated with the
toxic chemical PFOA.
Three companies -- St. Gobain, 3M, and Honeywell -- will split the
cost of the multi-million dollar payout.
The money will also be divided among property owners and private
well owners.
Part of the settlement goes toward cash payments while another
portion goes toward medical monitoring for thousands of residents
-- some of whom suffered health issues from the toxic chemical.
[GN]
SOCIETE DES LOTERIES: Langlois Lawyers Discusses Court Ruling
-------------------------------------------------------------
Vincent de l'Etoile, Esq., of Langlois Lawyers LLP, in an article
for Lexology, reports that on November 29, 2021, the Superior Court
of Quebec handed down an interesting decision in Option
Consommateurs c. Societe des loteries du Quebec (Loto-Quebec)
dealing with the preservation of confidentiality and the sealing of
documents belonging to the defendant and a third party, the
disclosure of which could harm their respective commercial
interests.
This decision is both a reminder and a rare application of the
legal principles relating to the preservation of confidentiality
and restrictions on the open court principle in commercial matters,
the implementation of which will depend on proof on a balance of
probabilities.
I. The dispute
In 2016, Option Consommateurs (the "Plaintiff") instituted a class
action against the Societe des loteries du Quebec ("Loto-Quebec").
The Plaintiff alleged that the Slingo game falsely led people to
believe that its operation and gameplay are entirely governed by
chance, when in fact the outcomes are predetermined by the
acquisition of a game card.
Once the class action was authorized, the parties entered into a
confidentiality agreement to govern and preserve the
confidentiality of the documents they were likely to exchange
during the proceedings (the "Agreement"). In accordance with the
Agreement, Loto-Quebec disclosed various documents during the
proceedings, including documents pertaining to the marketing and
operation of lottery games, which were central to the dispute (the
"Confidential Documents"). The Plaintiff subsequently informed
Loto-Quebec of its intention to use these documents publicly for
the purposes of the proceedings, despite the provisions of the
Agreement.
Loto-Quebec therefore applied to the Court for an order of
confidentiality and the sealing of the Confidential Documents and
all references thereto. Only the lawyers involved in the litigation
and their respective experts would have access to these documents,
to the exclusion of any other person, including the class members
involved in the class action.
It should be kept in mind that the purpose of a confidentiality
order (non-disclosure or non-publication) is to allow for relevant
information to be filed in the Court record for discussion and
consideration by the Court to the exclusion of the public or even a
party. A sealing order, on the other hand, is intended to ensure
that the public or third parties do not have access to the
documents filed with the Court.
II. The Superior Court judgment
A. Applicable legal framework
In a judgment written by the Honourable Johanne Mainville, J.S.C.,
the Superior Court reiterated the cardinal principle of our justice
system, namely the open court principle, in accordance with the
precepts of the Canadian Charter of Rights and Freedoms2 and
Quebec's Charter of Human Rights and Freedoms.3
However, article 12 of the Code of Civil Procedure provides that
the court may make an exception to the open court principle,
particularly if it considers that public order, including the
protection of substantial and legitimate interests, justifies
prohibiting or restricting access to a document or to the
information contained therein.
The burden of proving that access to a document or piece of
information would interfere with a substantial and legitimate
interest rests with the party seeking the protective order. This
party must lead evidence that satisfies the cumulative criteria
established by the Supreme Court of Canada:4
a) court openness poses a serious risk to an important public
interest;
b) the order sought is necessary to prevent this serious risk to
the identified interest because reasonable alternative measures
will not prevent this risk; and,
c) as a matter of proportionality, the benefits of the order
outweigh its negative effects.
Once it has been demonstrated that these criteria have been met,
the Court has the discretion to issue an order limiting access or
disclosure of information or documents, depending on the
circumstances.
B. Adjudication of the dispute regarding the Confidential
Documents
Notwithstanding the relevance of the Confidential Documents to the
dispute, the orders sought by Loto-Quebec would have the effect of
limiting access to these documents by the public, the
representative plaintiff and other members of the class, which
would undermine the openness of the court proceedings.
The orders sought by Loto-Quebec were based on two sworn
statements. One came from the third-party company that developed
the Slingo game, while the other came from a person responsible for
marketing the game at Loto-Quebec, which made it possible to
establish the following elements in particular:
a) The Confidential Documents contain information about the code,
game scenarios, functionality and possible outcomes of the Slingo
game;
b) The Slingo game is available to other public and private
entities in Europe and North America;
c) The Slingo game is operated under a license granted to
Loto-Quebec, which provides for its confidentiality and the
obligation to protect all information relating to the game;
d) Loto-Quebec and the company that developed the Slingo game have
always considered the related information to be highly confidential
and commercially sensitive, both with respect to other companies in
the gaming industry and with respect to the users of the Slingo
game, who would be harmed by the disclosure of such information.
For its part, the Plaintiff did not submit any evidence in response
to the orders sought by Loto-Quebec, nor did it question the
authors of the above-mentioned statements.
Despite the Plaintiff's claims that the rules and different outcome
scenarios of the Slingo game are publicly available because any
player or business interested in the game could identify them, the
Court must consider the uncontradicted evidence submitted by
Loto-Quebec, which cannot simply be dismissed based on
representations at the hearing.
In this case, the evidence shows on a balance of probabilities that
the Confidential Documents have always been treated as such by
Loto-Quebec and are covered by a confidentiality agreement that
would be breached by the disclosure of said documents. Moreover,
disclosure of the Confidential Documents would be likely to harm
the vital commercial interests of the company that developed the
Slingo game as well as those of Loto-Quebec.
Consequently, the Court was satisfied that the Confidential
Documents relate to an important commercial interest that would be
seriously threatened by the public release of these documents.
Furthermore, the Court was satisfied that, in the circumstances,
there was no reasonable and effective alternative to the orders
sought by Loto-Quebec. It also found that the scope of the orders
was not disproportionate or unreasonable given that the parties to
the dispute, their counsel and experts will be able to access the
Confidential Documents for the purposes of the litigation.
The Court therefore granted the orders sought by Loto-Quebec and
issued both a confidentiality order and a sealing order with
respect to the Confidential Documents.
III. Conclusion
The decision in Option Consommateurs c. Societe des loteries du
Quebec (Loto-Quebec) is a useful reminder of the principles
relating to the preservation of the confidentiality of commercial
interests and documents in a commercial context. This decision also
reminds parties seeking similar orders of the importance of
providing compelling evidence of the confidentiality of the
information at issue in order to justify an exception to the open
court principle.
Furthermore, it is clear from the Superior Court's decision that
the fact that this dispute is a class action is not in itself a
relevant consideration in determining whether or not to restrict
the disclosure or public release of information. [GN]
SPECIAL FRUIT: Matos Class Suit Seeks Unpaid OT Wages Under FLSA
----------------------------------------------------------------
ANGELO MATOS, and other similarly situated individuals v. SPECIAL
FRUIT ARRANGEMENTS, LLC, ANGEL CASANOVA, and MARIA ROSA ALAIMO
STRAZZERI, Case No. 1:22-cv-20449-JEM (S.D. Fla., Feb. 14, 2022)
seeks to recover money damages for unpaid overtime wages under the
Fair Labor Standards Act.
The Plaintiff was employed by the Defendants as a helper/assistant
from May 6, 2020, to December 15, 2021. When he first started, he
worked for Defendants in the production department. He would also
typically drive the Defendants' van and make deliveries and
transport goods for the Defendants, the Plaintiff contends.
Throughout his employment for Defendants, Plaintiff worked on
average seven days per week. When it was "busy" (Mother’s Day,
Valentine’s day, Christmas Holidays, etc.), he worked on average
approximately 130 hours per week. When it was not so busy,
Plaintiff routinely worked for the Defendants approximately 80
hours per week, added the suit.
The Defendants allegedly paid Plaintiff between $105 per day to
$160 per day. On average, the Defendants paid Plaintiff $800 per
week. The Defendants never paid Plaintiff any overtime for the
hours that he worked in excess of 40 per week.
Special Fruit Arrangements offers a delicious assortment of fresh
fruit arrangements and chocolate.[BN]
The Plaintiff is represented by:
Aron Smukler, Esq.
R. Martin Saenz, Esq.
SAENZ & ANDERSON, PLLC
20900 NE 30 th Avenue, Ste. 800
Aventura, FL 33180
Telephone: (305) 503-5131
Facsimile: (888) 270-5549
E-mail: asmukler@saenzanderson.com
msaenz@saenzanderson.com
STATE FARM: Loses Bid to Dismiss Palmer's First Amended Complaint
-----------------------------------------------------------------
In the case, FREEMAN J. PALMER, and CHELSEA PALMER, on behalf of
themselves and all others similarly situated, Plaintiffs v. STATE
FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Defendants, Case
No. 1:19-cv-00301-KWR-SCY (D.N.M.), Judge Kea W. Riggs of the U.S.
District Court for the District of New Mexico denied the
Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint,
filed Dec. 6, 2021.
I. Background
The putative class action arises out of a dispute over
"underinsured motorist coverage." Since 2014, the Defendants issued
insurance policies to Plaintiff Freeman Palmer which provided for
liability coverage in the amount of $25,000 per person/$50,000 per
occurrence, and uninsured and underinsured motorist coverage in the
amount of $25,000 per person/$50,000 per occurrence.
The Plaintiffs allege that the Defendants misrepresented or failed
to adequately explain to them and the similarly situated class
members the extent of "underinsured motorist" coverage when
purchased at the minimum level of $25,000. They allege that the
Defendants "misled insureds into believing they are purchasing the
amount of underinsured motorist coverage they have selected without
any offset." Plaintiff Freeman Palmer alleges that the Defendants
did not inform him that that he would be unlikely to recover any
underinsured motorist coverage when purchased at minimum limits.
On April 13, 2015, Chelsea Palmer sustained bodily injuries arising
from an automobile collision in Albuquerque, New Mexico. The
Plaintiffs allege that an "underinsured motorist" ran a traffic
signal and collided into Chelsea Palmer's vehicle. Chelsea Palmer
alleges that she suffered serious bodily injuries and other
damages, and suffered total damages in excess of $50,000.
At the time of the collision, Chelsea Palmer was an insured
beneficiary under the Freeman J. Palmer policy, which provided her
with uninsured and underinsured motorist insurance coverage up to
$25,000 per person and $50,000 per occurrence. The alleged
tortfeasor carried minimum limit liability insurance with limits of
$25,000 per person.
The Plaintiffs allege that they had a reasonable expectation that
they carried underinsured motorist coverage of $25,000 per person
and $50,000 per occurrence. They allege that they had a reasonable
belief that Chelsea Palmer was entitled to underinsured motorist
benefits pursuant to their insurance policy.
Chelsea Palmer apparently received $25,000 in liability payments
from the tortfeasor. She also filed a claim with the Defendants for
underinsured motorist coverage. The Defendants denied the claim for
minimum limits underinsured motorist coverage, asserting that "due
to the limits of the BI [bodily injury] portion of the claim being
equal to that of our UIM policy, it appears the offset would apply,
therefore there is no UIM claim." Chelsea Palmer received nothing
from the Defendants for her underinsured motorist coverage.
The Plaintiffs' putative class action complaint seeks to maintain a
class of the following: "All persons (and their heirs, executors,
administrators, successors, and assigns), from whom the Defendants
collected a premium for underinsured motorist coverage after Aug.
14, 1985 to present, on a policy that was issued or renewed in New
Mexico by the Defendants and that purported to provide underinsured
motorist coverage, but which effectively provides no underinsured
motorist coverage (UIM) and/or misleading UIM coverage, because of
the statutory offset recognized in Schmick v. State Farm Mutual
Automobile Insurance Company, 704 P.2d 1092 (1985)."
They also assert the following subclass: "All Class Members (and
their heirs, executors, administrators, successors, and assigns)
where underinsured motorist coverage on a policy that was issued or
renewed in New Mexico by Defendants and that purported to provide
an amount of UM/UIM limits per occurrence, but which in fact
provides none or a misleading amount of underinsured motorists
coverage, because of the statutory offset recognized in Schmick v.
State Farm Mutual Automobile Insurance Company, 704 P.2d 1092
(1985), and who sustained damages in excess of an insured
tortfeasor's policy limits, received the extent of all bodily
injury liability limits available, made a claim with Defendants for
underinsured motorist benefits and were denied those benefits."
The Plaintiffs filed a First Amended Complaint asserting the
following claims: Count I: Negligence; Count II: Violations of the
Unfair Trade Practices Act (N.M.S.A.1978, Section 57-12-2) (UPA);
Count III: Violations of the Unfair Insurance Practices Act
(N.M.S.A.1978, Sections 59A-16-1 et seq.) (UIPA); Count IV:
Reformation of Insurance Policy; Count V: Breach of Contract and
Covenant of Good Faith and Fair Dealing; Count VI: Negligent
Misrepresentation; Count VII: Declaratory Judgment; and Count VIII:
Injunctive Relief.
In Crutcher v. Liberty Mut. Ins. Co., et al., Case No.:
18-cv-00412-JCH-LF (D.N.M.), United States District Judge Judith C.
Herrera certified the following questions to the New Mexico Supreme
Court: "Under N.M. Stat. Ann. Section 66-5-301, is underinsured
motorist coverage on a policy that offers only minimum UM/UIM
limits of $25,000 per person/$50,000 per accident illusory for an
insured who sustains more than $25,000 in damages caused by a
minimally insured tortfeasor because of the offset recognized in
Schmick v. State Farm Mutual Automobile Insurance Company, and, if
so, may insurers charge a premium for that non-accessible
underinsured motorist coverage?
The matter was stayed pending the New Mexico Supreme Court's
answer. The New Mexico Supreme Court answered this question and the
Defendants moved to dismiss the claims in the case.
The New Mexico Supreme Court answered the question, concluding that
(1) underinsured motorist coverage at the minimum limits was
illusory in the sense that it was misleading to the average
insured, but (2) the future sale of such insurance was lawfully
permitted as long as the limitations of minimum limits underinsured
motorist coverage were disclosed to insureds in the form of an
"exclusion." The Crutcher court concluded that "this type of policy
is illusory in that it may mislead minimum UM/UIM policy holders to
believe that they will receive underinsured motorist benefits, when
in reality they may never receive such a benefit."
II. Discussion
The Defendants move to dismiss all claims in the case. Judge Riggs
finds that the Plaintiffs stated plausible claims upon which relief
can be granted under each count.
A. Crutcher v. Liberty Mut. Ins. Co. does not mandate dismissal of
the claims in the case.
The Defendants assert that the Court should dismiss all claims in
the case in light of the New Mexico Supreme Court's decision in
Crutcher. They appear to believe that Crutcher applies
prospectively and grants them immunity from prior misrepresentation
claims as to minimum limit underinsured motorist coverage.
Judge Riggs disagrees and concludes that Crutcher generally
supports the Plaintiffs' claims. She opines that such immunity
would be inconsistent with the New Mexico Supreme Court's reasoning
that the sale of minimum level underinsured motorist coverage was
misleading to insureds and the statutory language did not provide
insurers with immunity. She also does not believe that the use of
the word "hereafter" by itself rises to the level generally used by
the New Mexico Supreme Court in announcing that a rule is
prospective. Generally, New Mexico has expressly stated when a case
applies prospectively and explained with reasoned analysis why it
applies prospectively. The New Mexico Supreme Court did not do so
in Crutcher.
The Defendants appears to argue that the presumption of
retroactivity is nevertheless overcome. The New Mexico Supreme
Court uses three factors to determine whether the presumption of
retroactive application has been overcome. In considering these
factors, Judge Riggs concludes the presumption of retroactive
application has not been overcome as to misrepresentation claims.
In other word, Crutcher does not provide the Defendants with
immunity for misrepresentation claims which arose pre-Crutcher.
B. Court declines to dismiss the negligence claim (Count I).
The Defendants move to dismiss the negligence claim. To assert a
negligence claim, the Plaintiffs must allege (1) a duty; (2) breach
of that duty; (3) causation; and (4) damages.
Judge Riggs declines to do dismiss the negligence claim and
concludes that the Plaintiffs state a plausible negligence claim.
She opines that (i) the Crutcher clearly held that insurers may not
mislead insureds about the nature of underinsured motorist
coverage; (ii) the New Mexico Supreme Court held that the statutory
authorization did not allow insurers to mislead insureds and did
not provide insurers immunity from misrepresentation claims; (iii)
reading the offset provision in the policy would not inform an
insured that the underinsured motorist coverage she purchased at
the minimum level would in fact have little to no value; and (iv)
the Plaintiffs adequately pled causation, as they alleged that the
Defendants' policy made them reasonably believe they were
purchasing underinsured motorist coverage. For these reasons, the
Plaintiffs pled a plausible negligence claim.
C. Court declines to dismiss the New Mexico Unfair Trade Practices
Act (UPA) claim (Count II).
The Plaintiffs allege that the Defendants violated the New Mexico
Unfair Trade Practices Act, NMSA 1978 Section 57-12-2, including
sections 57-12-2(D)(7),(D)(14), (D)(15), (D)(17), and 57-12-2-(E).
"To state a claim under the UPA, a plaintiff must show that: (1)
defendant made an oral or written statement that was either false
or misleading; (2) the false or misleading representation was
knowingly made in connection with the sale of goods or services;
(3) the conduct complained of occurred in the regular course of
defendant's business; and (4) the representation may, tends to, or
does deceive or mislead any person.
The Defendants argue that the Plaintiffs failed to plead any
misrepresentation. Judge Riggs rejects this argument, for the same
reasons she stated. She opines that the Plaintiffs adequately pled
that the Defendants misrepresented their underinsured motorist
coverage. The policy does not adequately explain to a reasonable
insured that the underinsured motorist provision is effectively
non-existent under circumstances where both the tortfeasor and
insured have minimum liability limits.
Moreover, Judge Riggs finds that although the Defendants were
authorized to sell underinsured motorist coverage, they were not
statutorily authorized to misrepresent such coverage. The
Defendants also have not pointed to anything from a regulatory body
that expressly permits them to, as the Plaintiffs allege,
misrepresent the nature of the coverage or fail to disclose
material information.
D. Court declines to dismiss Plaintiffs' Unfair Insurance Practices
Act claim (Count III).
The Plaintiffs allege that the Defendants violated the New Mexico
Unfair Insurance Practices Act ("UIPA"), NMSA 1978, Sections
59A-16-1 to 59A-16-30. "This act seeks to prohibit unfair or
deceptive acts and practices in the insurance industry." The
Defendants argue that the Plaintiffs failed to plead a plausible
UIPA claim.
Judge Riggs disagrees. She finds that the Plaintiffs appear to
assert that the "Defendants misrepresented to insureds pertinent
facts or policy provisions relating to coverages at issue." For the
reasons she stated, the Defendants failed to provide material
information so that a reasonable insured would understand that the
underinsured motorist coverage they were purchasing had little
value. Therefore, the Plaintiffs stated a plausible UIPA claim.
E. Court declines to dismiss Plaintiffs' reformation claim (Count
IV).
The Plaintiffs also seek to reform the insurance policy, alleging
that the Defendants misrepresented the coverage. "Under New Mexico
law, a misrepresentation can be the basis for a party's avoidance
of contractual obligations through rescission or reformation when
the contract is based in material part on that misrepresentation."
"In order for this to occur, the recipient of the misrepresentation
must show that (1) there was a misrepresentation that was (2)
material or fraudulent and which (3) induced the recipient to enter
into the agreement and that (4) the recipient's reliance on the
misrepresentation was justified." S
Judge Riggs holds that the Plaintiffs plausibly pled that they were
misled into a reasonable believing that they would receive
underinsured motorist coverage. She therefore declines to dismiss
this claim.
F. Court declines to dismiss good faith and fair dealing claim
(Count V).
The Plaintiffs allege the tort of breach of covenant of good faith
and fair dealing, which arises from the special relationship
between an insurer and insured. Claims for breach of good faith and
fair dealing between an insured and insurer may sound in either
contract or tort. Moreover, the tort recovery breach of the
covenant of good faith and fair dealing is available where a
special relationship exists, such as between insurer and insured.
Judge Riggs determines that the Plaintiffs have plausibly alleged
that there is a special relationship between the insurer and
insured. They also plausibly alleged that the Defendants breached
the covenant of good faith and fair dealing by (1) failing to
properly inform them of the illusory or misleading coverage that
was sold and (2) charging a premium for coverage that would not be
provided. Judge Riggs declines to dismiss this claim.
G. Court declines to dismiss the negligent misrepresentation claim
(Count VI).
To state a negligent misrepresentation claim, the Plaintiffs must
show that "the offending party must have breached a duty of
disclosure owed to the injured party, the injured party must have
had a right to rely on the misinformation, and it must have
sustained damages." Under New Mexico law, a negligent
misrepresentation claim may sound between parties to a contract, or
between an insurer and insured. In many cases where a negligent
misrepresentation is asserted, the parties are likely parties to a
contract.
In the case, Judge Riggs rules that the Plaintiffs have plausibly
pled a negligent misrepresentation claim, for the reasons she
stated. The Defendants allegedly misled the Plaintiffs into
believing they would receive underinsured motorist coverage when
they would not. Judge Riggs declines to dismiss this claim.
H. Court declines to dismiss declaratory judgment claim (Count
VII).
The Defendants argue that the declaratory judgment claim should be
dismissed because (1) it is duplicative of their reformation claim
and (2) is moot following Crutcher.
Judge Riggs disagrees. She holds that the declaratory judgment
claim is not entirely duplicative of the reformation claim.
Moreover, the Court has not dismissed any of the substantive claims
under the complaint, and declaratory relief is not moot following
Crutcher, as the Defendants appear to continue to contest the
matters in the case. Crutcher dealt with separate policies issued
by Liberty Mutual, and the Defendants assert that their policies
are different. Finally, Crutcher does not provide immunity for the
misrepresentation claims in the case.
I. Court declines to dismiss request for injunctive relief.
The Defendants argue that the injunctive relief claim is now moot
after the Crutcher court ordered insurers to disclose the
limitations of minimum limit underinsured motorist coverage. The
complaint does not allege whether the Defendants have complied with
that directive. At the Rule 12(b)(6) stage, the Court may not take
evidence to determine whether the Defendant is in fact remedying
the misrepresentations.
The Defendants argue in their reply brief that the Plaintiffs
concede the request for injunction is moot. Judge Riggs disagrees.
Therefore, she declines to dismiss the Plaintiff's request for
injunctive relief.
J. Joint Venture.
In their reply brief, the Defendants assert that State Farm Fire
and Casualty Co. and State Farm General Insurance Co. should be
dismissed from the action because the Plaintiffs failed to
plausibly plead a joint venture.
Judge Riggs will not entertain this argument as it was raised for
the first time in a reply brief.
III. Conclusion
Judge Riggs concludes that the Plaintiffs state plausible claims
upon which relief can be granted and she declines to dismiss any
claims under Fed. R. Civ. P. 12(b)(6). Hence, the Defendants'
Motion to Dismiss is denied for reasons described in the Memorandum
Opinion and Order.
A full-text copy of the Court's Feb. 4, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/29mn3bnp from
Leagle.com.
STATE STREET: Lieff Cabraser Fails to Reverse Sanction Over Fees
----------------------------------------------------------------
David McAfee, writing for Bloomberg Law, reports that Lieff
Cabraser Heimann & Bernstein LLP failed on Feb. 9 to convince the
First Circuit to reverse a formal sanction it received for
misrepresenting typical fees to justify $60 million in attorneys'
fees in a class action challenging charges on foreign exchange
products.
Lieff Cabraser and others represented a class of investors who
successfully challenged the charges imposed by State Street Bank
and Trust Co. The class and its lawyers from Lieff Cabraser and
other firms got a combined $300 million.
The district court awarded class counsel $75 million, but later
adjusted that amount to $60 million and sanctioned Lieff Cabraser,
without monetary penalty, for materially misrepresenting a study on
typical fee awards in similar cases.
The U.S. Court of Appeals for the First Circuit upheld the
sanction, affirming that Lieff Cabraser violated Federal Rule of
Civil Procedure 11(b) when it said a fee of 25% of the recovery was
"right in line" with a study examining class action fee awards.
The fee memorandum didn't detail that the study showed settlements
between $250 million and $500 million were closer to 17.8% for fee
awards, the appeals court said.
"Viewed in context, the fee memorandum painted a materially
misleading picture," Judge William J. Kayatta Jr. wrote. The fact
that the firm included the complete study as part of exhibits
doesn't prevent that misleading description, Kayatta ruled.
The appeals court also dismissed as unappealable claims against the
district court's "mere criticisms" of the firm's behavior. Lieff
Cabraser was criticized for using a bad fee template and for
contributing to another firm's overpayment issue, but it wasn't
sanctioned for those issues, the appellate panel ruled.
Judges O. Rogeriee Thompson and David J. Barron joined the
decision.
Lieff Cabraser is represented by Samuel Issacharoff.
The case is Lieff Cabraser Heimann & Berns v. Labaton Sucharow LLP,
1st Cir., No. 21-01069, 2/9/22. [GN]
STICKER MULE: Smith FTSA Suit Removed to M.D. Florida
-----------------------------------------------------
The case styled TIANA SMITH, individually and on behalf of all
others similarly situated v. STICKER MULE, LLC, Case No.
5:22-cv-00084-JSM-PRL, was removed from Fifth Judicial Circuit
Court in and for Marion County, Florida, to the U.S. District Court
for the Middle District of Florida on February 11, 2022.
The Clerk of Court for the Middle District of Florida assigned Case
No. 5:22-cv-00084-JSM-PRL to the proceeding.
The case arises from the Defendant's alleged violation of the
Florida Telephone Solicitation Act by making telephonic sales calls
to consumers, including the Plaintiff, without prior express
written consent.
Sticker Mule, LLC is a provider of custom printing services, with
its headquarters in Amsterdam, New York. [BN]
The Defendant is represented by:
Josh A. Migdal, Esq.
Yaniv Adar, Esq.
MARK MIGDAL & HAYDEN
80 S.W. 8th Street, Suite 1999
Miami, FL 33130
Telephone: (305) 374-0440
E-mail: josh@markmigdal.com
yaniv@markmigdal.com
SYMPHONY BRONZEVILLE: Ruling in BIPA Class Action Suit Discussed
----------------------------------------------------------------
James F. Bogan III, Esq., of Kilpatrick Townsend & Stockton LLP,
disclosed that last year, the law firm reported on a Seventh
Circuit decision endorsing a "no injury" pleading strategy for
violations of Illinois's Biometric Information Privacy Act (BIPA).
The strategy, calculated to prevent the removal of a BIPA class
action to federal court, avoids any allegation of an Article III
injury and therefore eliminates federal subject-matter
jurisdiction. See BIPA class actions: Seventh Circuit endorses
pleading strategy calculated to avoid removal to federal court
(January 29, 2021). Recently, the Illinois Supreme Court endorsed
this strategy to avoid another legal obstacle – the exclusivity
provisions of Illinois's Workers' Compensation Act (WCA). See
McDonald v. Symphony Bronzeville Park, LLC, --- N.E.3d ----, 2022
IL 126511, 2022 WL 318649 (Feb. 3, 2022). BIPA thus provides a
class action plaintiff with the best of at least three worlds: (1)
no injury required to state a claim; (2) the preferred venue of
class action defendants -- federal court -- can be avoided
entirely; and (3) the class can recover potentially staggering
liquidated damages -- $1,000 for each negligent violation and
$5,000 for each reckless or intentional violation.
BIPA, a privacy statute enacted in 2008, regulates "the collection,
use, safeguarding, handling, storage, retention, and destruction of
biometric identifiers and information." 2022 IL 126511 ¶ 20
(quoting 740 ILCS 14/5(g)). BIPA defines "[b]iometric identifier"
as "a retina or iris scan, fingerprint, voiceprint, or scan of hand
or face geometry," and "[b]iometric information" as "any
information, regardless of how it is captured, converted, stored,
or shared, based on an individual's biometric identifier used to
identify an individual." Id.
Section 20 of BIPA provides that a plaintiff may recover liquidated
damages or actual damages, "whichever is greater," for a violation
of its procedural requirements. Id. Marquita McDonald originally
sought both actual damages -- for mental anguish – and liquidated
damages, from her employer in connection with the collection and
use of her fingerprints for an employee time-keeping system. The
class defendants raised a number of defenses, including the defense
that plaintiff's alleged injuries related to her work and thus
triggered the exclusivity provisions of the WCA. The plaintiff then
amended her complaint to eliminate her claim for mental anguish,
making it clear that she and the class alleged no actual damages at
all and instead only sought the recovery of liquidated damages.
Both the circuit court and intermediate appellate court (on a
petition for interlocutory appeal) agreed that the exclusivity
provisions of the WCA did not preclude McDonald's claims. The
Illinois Supreme Court granted the defendants' petition to appeal
and agreed with the rulings of the two lower courts.
According the Illinois Supreme Court, because the exclusivity
provisions of the WCA depend on the type of injury alleged, and
because employees could not recover BIPA's liquidated damages under
the WCA, the WCA exclusivity bar does not apply: "[W]e conclude
that McDonald may pursue her Privacy Act claims on her behalf and
on behalf of the putative class in an action in the circuit court,
rather than through a claim before the Workers' Compensation
Commission, because McDonald's and the putative class's alleged
injury is not one that 'categorically fits within the purview of
the [WCA].' Because the injury alleged is not the type of injury
compensable in a workers' compensation proceeding, McDonald's
lawsuit is not preempted by the exclusive-remedy provisions of the
[WCA]." Id. citation omitted).
In a specially concurring opinion, Justice Michael J. Burke noted
the opportunity for "pleading gamesmanship" in alleging BIPA
claims: "I agree with the majority that the injury as alleged is
not compensable under the [WCA] because, quite simply, there is no
injury. . . . McDonald and the putative class have not suffered a
physical, emotional, or financial injury. We know this because
McDonald amended her complaint to remove any allegation that she
suffered mental anguish from the purported violations of [BIPA].
The operative, amended complaint sought recovery of liquidated
damages, not any actual damages. . . . Had McDonald persisted in
her allegation of mental anguish, the exclusivity provisions of the
[WCA] would have barred her claim. But by denying the existence of
an injury, McDonald preserved her cause of action under [BIPA].
This opportunity for gamesmanship in pleading highlights the
incongruity of applying the [WCA]'s exclusivity provisions to
[BIPA] claims that allege actual injuries but not to those that
allege technical violations." Id. (Burke, J., specially
concurring).
As Justice Burke observed, this "no injury" paradigm appeared to be
"totally inconsistent" with the Illinois Supreme Court's prior
holding that "a technical violation of the Privacy Act is a 'real
and significant' injury," for purposes of a BIPA claimant meeting
the "aggrieved" requirement for bringing a private claim under the
statute. Id. 60 (quoting Rosenbach v. Six Flags Entm't Corp., 2019
WL 123186 ¶ 34, 432 Ill. Dec. 654, 129 N.E.3d 1197). [GN]
TAL EDUCATION: Bronstein Gewirtz Reminds of April 5 Deadline
------------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC notifies investors that a class
action lawsuit has been filed against TAL Education Group ("TAL
Education" or the "Company") (NYSE: TAL) and certain of its
officers, on behalf of shareholders who purchased or otherwise
acquired TAL Education American Depository Shares ("ADSs") between
April 26, 2018, and July 22, 2021, both dates inclusive (the "Class
Period"). Such investors are encouraged to join this case by
visiting the firm's site: www.bgandg.com/tal.
This class action seeks to recover damages against Defendants for
alleged violations of the federal securities laws under the
Securities Exchange Act of 1934.
The Complaint alleges that the Defendants made materially false and
misleading statements and failed to disclose that: (i) TAL
Education's revenue and operational growth was the result of
deceptive marketing tactics and illicit business practices that
flouted Chinese laws, regulations, and policies, and exposed TAL
Education to an extreme risk that more draconian measures would be
imposed on TAL Education; (ii) TAL Education had engaged in
misleading and fraudulent advertising practices, including the
provision of false and misleading discount information designed to
obfuscate the true cost of TAL Education's programs to its
customers, the creation of fake customer reviews designed to
fraudulently lure new customers to TAL Education programs, the
misrepresentation of teacher qualifications and course qualities,
and the marketing of rigged promotional events; (iii) TAL Education
had defied Chinese policies designed to alleviate the burden
imposed by tutoring services on students and their families,
including by imposing hefty advances and recurring debt payments on
course enrollees, by offering courses designed to give affluent
students unfair advantages, by holding courses outside of allowable
tutoring hours, and by linking for-profit courses to
government-mandated schooling; (iv) as a result, TAL Education was
subject to an extreme undisclosed risk of adverse enforcement
actions, regulatory fines, and penalties, and the imposition of new
rules and regulations adverse to TAL Education's business and
financial interests; and (v) consequently, TAL Education's
historical growth was not sustainable or the result of legitimate
business tactics as represented, and defendants' positive
statements about TAL Education's business, operations, and
prospects were materially false and misleading and lacked a
reasonable factual basis.
A class action lawsuit has already been filed. If you wish to
review a copy of the Complaint you can visit the firm's site:
www.bgandg.com/tal or you may contact Peretz Bronstein, Esq. or his
Investor Relations Analyst, Yael Nathanson of Bronstein, Gewirtz &
Grossman, LLC at 212-697-6484. If you suffered a loss in TAL
Education you have until April 5, 2022, to request that the Court
appoint you as lead plaintiff. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff.
Bronstein, Gewirtz & Grossman, LLC is a corporate litigation
boutique. Our primary expertise is the aggressive pursuit of
litigation claims on behalf of our clients. In addition to
representing institutions and other investor plaintiffs in class
action security litigation, the firm's expertise includes general
corporate and commercial litigation, as well as securities
arbitration. Attorney advertising. Prior results do not guarantee
similar outcomes.
Contacts
Bronstein, Gewirtz & Grossman, LLC
Peretz Bronstein or Yael Nathanson
212-697-6484 | info@bgandg.com [GN]
TALKSPACE INC: Kessler Topaz Reminds of March 8 Deadline
--------------------------------------------------------
The law firm of Kessler Topaz Meltzer & Check, LLP (www.ktmc.com)
informs investors that a securities class action lawsuit has been
filed in the United States District Court for the Southern District
of New York against Talkspace, Inc. ("Talkspace") (NASDAQ:TALK)
f/k/a Hudson Executive Investment Corporation ("HEIC") (NASDAQ:HEC,
HECCW, HECCU)). The action charges Talkspace with violations of the
federal securities laws, including omissions and fraudulent
misrepresentations relating to the company's business, operations,
and prospects. As a result of Talkspace's materially misleading
statements to the public, Talkspace investors have suffered
significant losses.
Kessler Topaz is one of the world's foremost advocates in
protecting the public against corporate fraud and other wrongdoing.
Our securities fraud litigators are regularly recognized as leaders
in the field individually and our firm is both feared and respected
among the defense bar and the insurance bar. We are proud to have
recovered billions of dollars for our clients and the classes of
shareholders we represent.
CLICK
https://www.ktmc.com/talkspace-class-action-lawsuit?utm_source=PR&utm_medium=link&utm_campaign=talkspace
TO SUBMIT YOUR TALKSPACE LOSSES. YOU CAN ALSO CLICK ON THE
FOLLOWING LINK OR COPY AND PASTE IN YOUR BROWSER:
https://www.ktmc.com/talkspace-class-action-lawsuit?utm_source=PR&utm_medium=link&utm_campaign=talkspace
LEAD PLAINTIFF DEADLINE: March 8, 2022
CLASS PERIOD: June 11, 2020 through November 15, 2021
CONTACT AN ATTORNEY TO DISCUSS YOUR RIGHTS:
James Maro, Esq. (484) 270-1453 or Email at info@ktmc.com
TALKSPACE'S ALLEGED MISCONDUCT
Talkspace is a virtual behavior healthcare company that delivers
healthcare through encrypted web and mobile platforms.
Specifically, the company offers treatment options for, inter alia,
psychiatry or adolescent, individual, and couples therapy.
On June 17, 2021, HEIC shareholders voted to approve a merger at a
special shareholder meeting where, following the consummation of
the merger, HEIC changed its name to "Talkspace, Inc."
Then, on August 9, 2021, Talkspace issued a press release
announcing the company's financial results for the second quarter
of 2021 and held a conference call to discuss the results. On the
call, Talkspace revealed some issues relating to increased customer
acquisition costs while downplaying their impact, and confirmed a
material increase in customer acquisition costs since the beginning
of the year. Following this news, Talkspace's stock price fell
$1.11 per share, or 18.72%, to close at $4.82 per share on August
10, 2021.
Then, on November 15, 2021, Talkspace issued a press release
announcing the company's financial results for the third quarter of
2021, and revealing numerous company declines. Additionally,
Talkspace announced that same day that its CEO as well as its Head
of Clinical Services were both stepping down from their respective
positions and as members of Talkspace's Board of Directors,
effective immediately. Following this news, Talkspace's stock price
fell $1.23 per share, or 36.28%, to close at $2.16 per share on
December 16, 2021.
WHAT CAN I DO?
Talkspace and/or former HEIC investors may, no later than
March 8, 2022 seek to be appointed as a lead plaintiff
representative of the class through Kessler Topaz Meltzer & Check,
LLP or other counsel, or may choose to do nothing and remain an
absent class member. Kessler Topaz Meltzer & Check, LLP encourages
Talkspace investors who have suffered significant losses to contact
the firm directly to acquire more information.
WHO CAN BE A LEAD PLAINTIFF?
A lead plaintiff is a representative party who acts on behalf of
all class members in directing the litigation. The lead plaintiff
is usually the investor or small group of investors who have the
largest financial interest and who are also adequate and typical of
the proposed class of investors. The lead plaintiff selects counsel
to represent the lead plaintiff and the class and these attorneys,
if approved by the court, are lead or class counsel. Your ability
to share in any recovery is not affected by the decision of whether
or not to serve as a lead plaintiff.
ABOUT KESSLER TOPAZ MELTZER & CHECK, LLP
Kessler Topaz Meltzer & Check, LLP prosecutes class actions in
state and federal courts throughout the country and around the
world. The firm has developed a global reputation for excellence
and has recovered billions of dollars for victims of fraud and
other corporate misconduct. All of our work is driven by a common
goal: to protect investors, consumers, employees and others from
fraud, abuse, misconduct and negligence by businesses and
fiduciaries. At the end of the day, we have succeeded if the bad
guys pay up, and if you recover your assets. The complaint in this
action was not filed by Kessler Topaz Meltzer & Check, LLP. For
more information about Kessler Topaz Meltzer & Check, LLP please
visit www.ktmc.com.
CONTACT:
Kessler Topaz Meltzer & Check, LLP
James Maro, Jr., Esq.
280 King of Prussia Road
Radnor, PA 19087
(484) 270-1453
info@ktmc.com [GN]
TELOS CORP: Bragar Eagel Reminds of April 8 Deadline
----------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized stockholder
rights law firm, on Feb. 10 disclosed that a class action lawsuit
has been filed against Telos Corporation ("Telos" or the "Company")
(NASDAQ: TLS) in the United States District Court for the Eastern
District of Virginia on behalf of all persons and entities who
purchased or otherwise acquired Telos securities between November
19, 2020 and November 12, 2021, both dates included, (the "Class
Period"). Investors have until April 8, 2022 to apply to the Court
to be appointed as lead plaintiff in the lawsuit.
The Class Action alleges that, during the Class Period, Defendants
made materially false and misleading statements and failed to
disclose material adverse facts about the Company's business,
operations, and prospects. Specifically, Defendants failed to
disclose that: (1) the TSA and CMS contracts, which constituted a
majority of the Company's future revenues, were not on track to
commence as represented at the end of 2021 and in 2022; (2)
Defendants lacked a reasonable basis and sufficient visibility to
provide and affirm the Company's 2021 guidance in the face of the
uncertainty surrounding the TSA and CMS contracts; (3) COVID- and
hacking scandal-related headwinds were throwing off the timing for
performance of the TSA and CMS contracts and their associated
revenues; (4) as a result, the guidance provided by Defendants was
not in fact "conservative"; (5) as a result of the delays, Telos
would be forced to dramatically reduce its revenue estimates; and
(6) as a result of the foregoing, Defendants' statements about
Telos' business, operations, and prospects, were materially false
and/or misleading and/or lacked a reasonable basis.
On this news, the Company's stock price fell $6.84, or 28%, to
close at $17.54 per share on November 15, 2021.
If you purchased or otherwise acquired Telos shares and suffered a
loss, are a long-term stockholder, have information, would like to
learn more about these claims, or have any questions concerning
this announcement or your rights or interests with respect to these
matters, please contact Brandon Walker or Alexandra Raymond by
email at investigations@bespc.com, telephone at (212) 355-4648, or
by filling out this contact form. There is no cost or obligation to
you.
About Bragar Eagel & Squire, P.C.:
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes.
Contacts
Bragar Eagel & Squire, P.C.
Brandon Walker, Esq.
Alexandra B. Raymond, Esq.
(212) 355-4648
investigations@bespc.com
www.bespc.com [GN]
TELOS CORP: Gainey McKenna Reminds of April 8 Deadline
------------------------------------------------------
Gainey McKenna & Egleston on Feb. 9 disclosed that a class action
lawsuit has been filed against Telos Corporation ("Telos" or the
"Company") (NASDAQ: TLS) in the United States District Court for
the Eastern District of Virginia on behalf of investors who
purchased Telos' common stock between November 19, 2020 and
November 12, 2021, both dates inclusive (the "Class Period").
The Complaint alleges that Defendants failed to disclose that: (1)
the TSA and CMS contracts, which constituted a majority of the
Company's future revenues, were not on track to commence as
represented at the end of 2021 and in 2022; (2) Defendants lacked a
reasonable basis and sufficient visibility to provide and affirm
the Company's 2021 guidance in the face of the uncertainty
surrounding the TSA and CMS contracts; (3) COVID and hacking
scandal-related headwinds were throwing off the timing for
performance of the TSA and CMS contracts and their associated
revenues; (4) as a result, the guidance provided by Defendants was
not in fact "conservative"; (5) as a result of the delays, Telos
would be forced to dramatically reduce its revenue estimates; and
(6) as a result of the foregoing, Defendants' statements about
Telos' business, operations, and prospects, were materially false
and/or misleading and/or lacked a reasonable basis.
The truth emerged during Telos' third quarter 2021 earnings call on
November 15, 2021, causing Telos' stock price to fall and investors
to suffer substantial losses. On that call, Telos announced that it
was not expecting the TSA PreCheck contract "to deliver meaningful
sales this year." The Company also disclosed that it was not
including revenue from the CMS contract in the Company's 2022
outlook. In response to these revelations, Telos' stock price fell
$6.84 per share, or more than 28 percent.
Investors who purchased or otherwise acquired shares of Telos
should contact the Firm prior to the April 8, 2022 lead plaintiff
motion deadline. A lead plaintiff is a representative party acting
on behalf of other class members in directing the litigation. If
you wish to discuss your rights or interests regarding this class
action, please contact Thomas J. McKenna, Esq. or Gregory M.
Egleston, Esq. of Gainey McKenna & Egleston at (212) 983-1300, or
via e-mail at tjmckenna@gme-law.com or gegleston@gme-law.com.
Please visit our website at http://www.gme-law.comfor more
information about the firm [GN]
TRANS VALLEY: Order Denying Arbitration Bid in Mendoza Suit Upheld
------------------------------------------------------------------
In the case, JOSE MARIO MENDOZA, Plaintiff and Respondent v. TRANS
VALLEY TRANSPORT, et al., Defendants and Appellants, Case No.
H044372 (Cal. App.), the Court of Appeals of California for the
Sixth District affirmed the trial court's order denying the
Defendants' motion to compel arbitration.
I. Background
In the wage and hours class action, the Court considers whether an
arbitration provision in an employee handbook, coupled with
acknowledgement forms the class representative signed, created a
legally binding agreement to arbitrate the claims presented.
Defendants and Appellants Trans Valley and FTU Labor Contractors,
Inc. (jointly "Employers") appeal from the trial court's order
denying their petition to compel arbitration of a putative class
action brought by a former employee -- Plaintiff and Respondent
Jose Mario Mendoza -- on behalf of truck drivers employed by Trans
Valley and FTU. The trial court found that the parties had not
entered into a binding agreement to arbitrate.
In May 2015, Mendoza filed a putative class action complaint
against Trans Valley and FTU asserting claims on behalf of truck
drivers who worked for Employers. In June 2015, the trial court
issued an order deeming the case a complex civil case and staying
discovery.
A few months later, Mendoza filed a first amended complaint (the
operative pleading), which alleged causes of action for: (1)
failure to pay minimum wages (Lab. Code, Sections 1194, 1197); (2)
failure to provide rest periods (Lab. Code, Section 226.7); (3)
failure to provide meal periods (Lab. Code, Section 226.7); (4)
unfair competition (Bus. & Prof. Code, Section 17200 et seq.); (5)
failure to provide accurate wage statements (Lab. Code, Section
226); and (6) failure to pay all wages owed upon termination (Lab.
Code, Sections 201-203). The Employers answered the first amended
complaint, and FTU filed a cross-complaint against PeopLease, LLC.
PeopLease answered the cross-complaint.
In May 2016, the Employers filed a motion to compel arbitration and
to stay the litigation, which was heard in November 2016. The
evidence in support of the motion consisted of the declaration of
Employers' counsel, in which she purported to authenticate FTU's
documents.
Mendoza opposed the motion, arguing that the Handbook, which stated
that it was not a contract and was merely for informational
purposes, did not create a binding agreement to arbitrate. He
argued that any agreement to arbitrate was void for lack of mutual
consent or voidable on the grounds of unilateral mistake, that he
was deceived into signing the acknowledgement forms, and that the
class action waiver was not enforceable. Mendoza objected to
Employers' evidence on the grounds that it was hearsay and lacked
foundation, that the Employers' counsel lacked personal knowledge
of the matters stated in her declaration, and that FTU's documents
had not been properly authenticated.
In reply, Employers argued that an agreement to arbitrate may be
based on the acknowledgement of receipt of an employee handbook
where, as in the present case, the arbitration policy is a
condition of employment and the employee accepted the position.
They asserted that it did not matter that Mendoza could not read or
speak English, that he signed the documents at his own peril, that
his signature was a manifestation of his assent, and that Employers
were entitled to rely on his assent. They argued that there was no
unilateral mistake, since Mendoza knew his English was limited, but
signed the documents anyway. Employers argued, for the first time,
under a heading about the enforceability of the class action
waiver, that under the Arbitration Policy's delegation clause,
questions regarding the validity and enforceability of the
arbitration agreement--including the class action waiver--were for
the arbitrator to decide, not the court.
The trial court found that the declaration of Employers' counsel
"provides no indication that the counsel was personally familiar
with or able to authenticate FTU documents" and sustained Mendoza's
objections to Employers' evidence. The trial court held these were
"fundamental defects" that required the denial of the motion. The
court also provided "its view on the parties' substantive
arguments" and concluded that a handbook that the employer itself
characterizes "as informational and non-contractual in nature
should not be construed as a contract." The court held "that where
an arbitration provision is provided to an employee within a
handbook that is repeatedly characterized as noncontractual in
nature, and the employee receives no other form of notice that he
will be deemed to have consented to arbitration by commencing or
continuing his employment, there is no 'clear' agreement to
arbitrate." The trial court denied the motion without prejudice "so
that the evidentiary issues could be cured."
The Employers filed a second motion to compel arbitration and stay
the litigation. Their moving papers included the declaration of
Rusler, who had personal knowledge of the documents used in the
hiring process. The Employers argued that the Handbook and the
forms Mendoza signed created an express agreement to arbitrate,
since the Arbitration Policy was a condition of Mendoza's
employment. Alternatively, they argued that the Handbook and other
documents created an implied agreement to arbitrate, which Mendoza
consented to by working for FTU. Finally, the Employers argued the
Arbitration Policy was not unconscionable and therefore
enforceable. Employers did not present any argument regarding the
delegation clause in their moving papers for their second motion.
In opposition to the second motion, Mendoza argued that it did not
matter that the Arbitration Policy described arbitration as a
condition of the employment because the Arbitration Policy provided
that its terms could be changed at any time by the Employers, and
since the forms he actually signed did not mention arbitration,
they did not put him on notice that he was bound by the Arbitration
Policy. Mendoza renewed his contentions that the Arbitration Policy
failed for lack of mutual consent or based on unilateral mistake
and that the class action waiver was unenforceable. Mendoza did not
respond to the Employers' unconscionability argument.
As before, the Employers argued in their reply, under a heading
about the class action waiver, that under the Arbitration Policy's
delegation clause, the validity and enforceability of the
Arbitration Policy, as well as the question whether the class
action waiver is enforceable, are for the arbitrator, not the court
to decide.
The trial court adopted its prior order and denied the motion to
compel arbitration. The court's orders did not address the
Employers' contention that the agreement was not unconscionable or
their assertions regarding the delegation clause. The Employers did
not request a statement of decision under Code of Civil Procedure
section 1291. The Employers timely appealed.
II. Discussion
The Employers raise four issues on appeal. First, based on the
delegation clause in the Arbitration Policy, they argue that the
trial court lacked jurisdiction to determine the enforceability of
the Arbitration Policy because the parties had delegated that
question to the arbitrator. Second, they allege that there was a
binding agreement to arbitrate. Based on the language of the
acknowledgement forms and the Arbitration Policy, Employers assert
that there was an express agreement to arbitrate. Alternatively,
citing Harris v. Tap Worldwide LLC (2016) 248 Cal.App.4th 373
(Harris), they argue that Mendoza entered into an implied-in-fact
agreement to arbitrate when he received the Handbook and worked for
the company.
Third, the Employers assert that Mendoza's signature on the
acknowledgement and checklist forms constituted an objective
manifestation of his understanding and consent to arbitration, in
spite of the fact that he could not read or understand the forms.
Fourth, they argue that the Arbitration Policy is not
unconscionable. The Employers urge the Court of Appeals to reverse
the trial court's order denying the motion to compel arbitration
and direct it to order the matter to arbitration.
The Court of Appeals finds that the Employers forfeited any right
to have the arbitrator decide whether the parties have entered into
a contract to arbitrate Mendoza's underlying claims by failing to
properly preserve those claims in the trial court. They also waived
that right by fully litigating the question there and here.
Even if the Court of Appeals were to consider the Employers'
delegation clause argument on the merits, it would hold that it was
for a court to decide the threshold question whether the parties
had entered into an agreement to arbitrate. It opines that although
the delegation clause provides that the arbitrator "shall have
exclusive authority to resolve any dispute relating to formation of
the arbitration policy," as a matter of law, the question whether
the parties entered into an agreement to arbitrate anything at all
is for a court to decide. Since Mendoza challenged contract
formation and the very existence of an agreement to arbitrate, the
trial court did not err when it addressed those issues.
Turning now to the question whether the trial court erred when it
found that the parties had not entered into an agreement to
arbitrate, the Court of Appeals opines that the trial court
correctly found that the parties had not entered into an express
agreement to arbitrate. Since the parties did not enter into either
an express or an implied contract to arbitrate, the trial court did
not err when it denied Employers' motion to compel arbitration.
III. Conclusion
The Court of Appeals concludes that the Employers have forfeited
their delegation clause argument by reserving the issue for their
reply in the trial court and not adequately briefing the issue
below or on appeal. However, the Court of Appeals exercises its
discretion to address the issue on the merits, and holds that it
was for a court to decide whether the parties had entered into an
agreement to arbitrate. It also concludes that in the circumstances
of the case, the parties have not entered into either an express or
an implied contract to arbitrate their disputes. It therefore
affirmed the trial court's order denying the motion to compel
arbitration.
A full-text copy of the Court's Feb. 4, 2022 Opinion is available
at https://tinyurl.com/yckjxakx from Leagle.com.
TRUE HEALTH: Faces Class Action Over Alleged Data Breach
--------------------------------------------------------
Phaedra Haywood at santafenewmexican.com reports that three state
residents who have filed a lawsuit against insurance firm True
Health New Mexico over what they call a "targeted cyberattack" are
seeking to have their complaint declared a class action,
representing about 63,000 patients whose personal information might
have been stolen.
The plaintiffs, from Santa Fe, Bernalillo and Valencia counties,
allege in their state District Court complaint the company failed
to protect their information from the October data breach even
though such an incident was foreseeable, due to the high value of
medical records on the "dark web," where they sell for as much as
$50.
A Social Security number, in comparison, might be worth as little
as $1, the lawsuit says.
Thieves can use patients' personal information to create false
identities, open lines of credit or file fraudulent tax returns,
the suit notes.
The result of the True Health breach, it adds, is that people with
compromised information are forced to go through the expense and
hassle of canceling accounts and documents, obtaining new ones and
carefully monitoring their online profiles for years.
Meanwhile, the suit says, victims must live with anxiety, fearing
their private information, including details of mental and physical
ailments, could be publicly disclosed.
True Health did not use best practices to safeguard against a
cyberattack, according to the lawsuit, and after it learned
members' data had been compromised, it delayed notifying them.
The company learned of the data breach Oct. 5, the suit says, but
"True Health did not notify the public or the U.S. Department of
Health and Human Services or send direct notice to effected
individuals" until mid-November.
The company did not respond to an email and phone call seeking
comment.
True Health posted a notice on its website in the fall about the
"data security incident" and said it had no evidence any personal
information had been misused. The company said it had "shut down
certain systems where necessary, took other preventative measures,
and supplemented our existing security monitoring, scanning, and
protective measures."
"We are working with law enforcement officials on their ongoing
criminal investigation of this matter," the company wrote on its
website. "True Health also has notified appropriate governmental
authorities and continues to monitor global networks for any signs
of data misuse."
Santa Fe attorney Kristina Martinez filed the complaint Jan. 25 in
the First Judicial District Court on behalf of Jason Clement of
Santa Fe County, Stephenie Wade of Bernalillo County and Karen
Siegman of Valencia County.
It accuses the company of negligence, invasion of privacy, breach
of contract, breach of fiduciary duty, violation of the New Mexico
Unfair Practices Act and unjust enrichment.
The plaintiffs are asking the court to declare the lawsuit a class
action, order the health insurer to prevent any future disclosures
of information, provide specific information about what data was
compromised and award class members an unspecified amount of actual
and punitive damages.
They also want the company to pay for the cost of bringing the
lawsuit and for five years worth of credit monitoring. The company
had offered to provide two years of credit monitoring. [GN]
TYSON FOODS: Settles Turkey Price-Fixing Class Action for $4.62MM
-----------------------------------------------------------------
Jessy Edwards, writing for Top Class Actions, reports that Tyson
Foods Inc will pay $4.62 million to direct turkey buyers in a class
action settlement resolving turkey price-fixing claims against the
poultry company.
In an order filed Feb. 3 in an Illinois federal court, U.S District
Judge Virginia M. Kendall signed off on the deal, which is the
first settlement in a run of antitrust cases against Tyson and
other poultry producers.
The class benefiting from the settlement includes anyone who
purchased turkey directly from the company and its related entities
for personal use from Jan. 1, 2010, through Jan. 1, 2017.
The settlement ended the antitrust claims filed against Tyson Foods
by direct buyer plaintiffs, New York-based Olean Wholesale Grocery
Cooperative and Pennsylvania-based food distributor John Gross and
Co. Inc. in litigation that dates back to December 2019.
"The Released Parties are hereby and forever released and
discharged with respect to any and all claims or causes of action
which the Releasing Parties had, have, or in the future may have,
arising out of or related to any of the Released Claims as defined
in the Settlement Agreement," the order states.
Purchasers Alleged That Major U.S. Turkey Producers Illegally
Traded Confidential Price Data
The purchasers alleged major U.S. turkey producers, including
Butterball LLC, Cargill Inc., Hormel Foods Corp. and Perdue Foods
LLC, illegally traded confidential price data and used the
information to reduce supply of turkey and artificially ramp up
prices for seven years.
Tyson's $4.62 million settlement follows a $221 million deal that
Tyson cut last year to escape claims it had participated in a
scheme to increase the price of chicken, Law360 reports.
In October last year, an Illinois federal judge granted the initial
approval of three class action settlements worth a combined $93.5
million between Tyson Foods Inc., Pilgrim's Pride Corp. and Mar-Jac
Poultry Inc. over price-fixing broiler chicken.
Under that settlement agreement, Tyson will pay indirect purchasers
$42.5 million.
The direct purchaser plaintiffs are represented by Steve W. Berman,
Shana E. Scarlet and Rio S. Pierce of Hagens Berman Sobol Shapiro
LLP and W. Joseph Bruckner, Brian D. Clark, Maureen Kane Berg,
Simeon Morbey, Steven E. Serdikoff and Leona B. Ajavon of Lockridge
Grindal Nauen PLLP.
The indirect buyers are represented by Robert A. Clifford and
Shannon M. McNulty of Clifford Law Offices PC; Jonathan W. Cuneo,
Blaine Finley and Evelyn Li of Cuneo Gilbert & LaDuca LLP; and John
"Don" Barrett, Katherine Barrett Riley and Sarah Sterling Starns of
Barrett Law Group PA.
The Tyson Foods Turkey Class Action Lawsuit is In Re Turkey
Antitrust Litigation, Case No. 1:19-cv-08318, in the U.S. District
Court for the Northern District of Illinois. [GN]
UNITED FOOD: Nagel Appeals Summary Judgment Ruling in Labor Suit
----------------------------------------------------------------
Plaintiffs Matthew Nagel, et al., filed an appeal from a court
ruling entered in the lawsuit entitled Matthew Nagel, individually
and on behalf of all others similarly situated, Plaintiff v. United
Food and Commercial Workers Union, Local 653, Defendant, Case No.
18-cv-01053-WMW, in the U.S. District Court for the District of
Minnesota.
The dispute arises from a 2018 collective bargaining agreement
("CBA") negotiated between Defendant Local 653 and SuperValu Cub
Foods and other independent grocers located in the Minneapolis
metropolitan area ("Grocers"). Nagel is employed by SuperValu and
is a member of Local 653. Local 653 is the exclusive bargaining
agent for all meat and food market employees of the Grocers.
Nagel brought the action individually and on behalf of all others
similarly situated, asserting claims against Local 653 for breach
of the duty of fair representation and violation of the
Labor-Management Reporting and Disclosure Act ("LMRDA"). Local 653
moved to dismiss Nagel's claims, and the Court concluded that Nagel
has sufficiently alleged facts to state a claim for a breach of the
duty of fair representation by bad-faith conduct. It also dismissed
for lack of subject-matter jurisdiction Nagel's claim for violation
of the LMRDA.
As reported in the Class Action Reporter on February 12, 2021,
Judge Wilhelmina M. Wright of the U.S. District Court for the
District of Minnesota denied Nagel's motion for class
certification.
On June 4, 2021, the Defendant filed a Motion for Summary Judgment,
which the Court granted on January 18, 2022.
The Plaintiffs now seek a review of this order.
The appellate case is captioned as Matthew Nagel, et al. v. United
Food and Com. Workers, Case No. 22-1303, in the United States Court
of Appeals for the Eighth Circuit, filed on Feb. 11, 2022.
The briefing schedule in the Appellate Case states that:
-- Transcript is due on or before March 23, 2022;
-- Appendix is due on April 4, 2022;
-- BRIEF APPELLANT, Jessica Becklund, Sharon Brown, Pat Darling,
Dean Dugan, Matthew Giesler, Steven Giesler, Robert Haas, Jonathan
Hamel, Lance Hanson, Eric Hazelbaker, Dawn Herzuck, Mark Hoffman,
Anthony Jensen, John Legierski, Carl Lundberg, Martin Manley,
Nicolas McBride, Judy McDowell, Shawn Moore, Daniel Morris, Matthew
Nagel, Bruce Olson, Mark Oslos, Luwana Meyer Pohl, Gregory Ponting,
Dan Quant, Don Renfrow, Annette Ries, Donna Rohling, Paul Rowe,
Becky Syverston and Patrick VanHoutan is due on April 4, 2022; and
-- Appellee brief is due 30 days from the date the court issues
the Notice of Docket Activity filing the brief of appellant.[BN]
Plaintiff-Appellant Matthew Nagel, individually and on behalf of
all others similarly situated, is represented by:
Jerri C. Adams Belcher, Esq.
Scott Moriarity, Esq.
Shawn J. Wanta, Esq.
BAILLON & THOME
100 S. Fifth Street, Suite 1200
Minneapolis, MN 55402
Telephone: (612) 252-3570
Intervenor Plaintiffs-Appellants Jessica Becklund, Sharon Brown,
Pat Darling, Dean Dugan, Matthew Giesler, Steven Giesler, Robert
Haas, Jonathan Hamel, Lance Hanson, Eric Hazelbaker, Dawn Herzuck,
Mark Hoffman, Anthony Jensen, John Legierski, Carl Lundberg, Martin
Manley, Nicolas McBride, Judy McDowell, Shawn Moore, Daniel Morris,
Bruce Olson, Mark Oslos, Luwana Meyer Pohl, Gregory Ponting, Dan
Quant, Don Renfrow, Annette Ries, Donna Rohling, Paul Rowe, Becky
Syverston, and Patrick VanHoutan are represented by:
Scott Moriarity, Esq.
BAILLON & THOME
100 S. Fifth Street, Suite 1200
Minneapolis, MN 55402
Telephone: (612) 252-3578
Defendant-Appellee United Food and Commercial Workers Local 653 is
represented by:
Timothy J. Louris, Esq.
Emily Lacy Marshall, Esq.
MILLER & O'BRIEN
120 S. Sixth Street, Suite 2400
Minneapolis, MN 55402-1529
Telephone: (612) 333-5831
UNITED STATES: Ninth Circuit Allows Quashing of Subpoena for DeVos
------------------------------------------------------------------
In the cases, IN RE U.S. DEPARTMENT OF EDUCATION; MIGUEL A.
CARDONA, in his official capacity as Secretary of the Department of
Education, U.S. DEPARTMENT OF EDUCATION; MIGUEL A. CARDONA, in his
official capacity as Secretary of the Department of Education,
Petitioners v. UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA, SAN FRANCISCO, Respondent, THERESA SWEET;
ALICIA DAVIS; TRESA APODACA; CHENELLE ARCHIBALD; JESSICA DEEGAN;
SAMUEL HOOD; JESSICA JACOBSON, on behalf of themselves and all
others similarly situated; ELISABETH DEVOS, Former U.S. Secretary
of Education, Real Parties in Interest. [PG[ IN RE ELISABETH DEVOS,
Former U.S. Secretary of Education, ELISABETH DEVOS, Former U.S.
Secretary of Education, Petitioner, v. UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO, Respondent,
CHENELLE ARCHIBALD; TRESA APODACA; ALICIA DAVIS; JESSICA DEEGAN;
SAMUEL HOOD; JESSICA JACOBSON; THERESA SWEET; U.S. DEPARTMENT OF
EDUCATION; MIGUEL A. CARDONA, in his official capacity as Secretary
of the Department of Education, Real Parties in Interest, Case Nos.
21-71108, 21-71109 (9th Cir.), the U.S. Court of Appeals for the
Ninth Circuit granted in part and denied in part the petitions for
writ of mandamus.
The Department and DeVos petitioned the Ninth Circuit for a writ of
mandamus ordering the district court to reverse its order denying
the motion to quash the subpoena of the former secretary. DeVos
also seeks a writ of mandamus directing the district court to
transfer the subpoena motion back to the Southern District of
Florida.
I. Introduction
The case presents an important question concerning the appropriate
separation and balance of power between two branches of the
government: When can the judicial branch compel a cabinet secretary
to submit to a deposition in which questions are propounded
regarding her official actions? Former United States Secretary of
Education Elisabeth DeVos, as well as the U.S. Department of
Education (Department), and the current Secretary of Education, ask
the Ninth Circuit to direct the U.S. District Court for the
Northern District of California (district court) to quash a
subpoena for the deposition of former Secretary DeVos.
II. Background
The case arises out of a lawsuit alleging that the Department of
Education unlawfully delayed making decisions on student loans
during DeVos's tenure as Secretary of Education. The federal
government assists students with higher education loans in various
ways. Congress has allowed for the cancellation of federal student
loans in certain cases of school misconduct. This loan cancellation
process is called borrower defense. In 2015, the number of borrower
defense applications dramatically increased when Corinthian
Colleges, Inc., a large for-profit institution, shut down after
incurring a $30 million fine from the Department for misleading
students concerning job placement success.
By the end of Pres. Barack Obama's administration in January 2017,
the Department had granted 99.2% of the borrower defense
applications it had evaluated, many of which were from Corinthian
College students. When Pres. Donald Trump took office, he appointed
DeVos to head the Department. Starting in December 2017, the
Department began using a new methodology to decide borrower defense
claims. In May 2018, the Department was preliminarily enjoined from
using this methodology because a federal district court concluded
that it resulted in likely violations of the Privacy Act, 5 U.S.C.
Section 552a. From June 2018 through December 2019, the Department
issued no borrower defense decisions.
In June 2019, several persons with pending borrower defense
applications brought suit against the Department and then --
Secretary DeVos in the district court pursuant to Section 706 of
the Administrative Procedure Act. They alleged unlawful
withholding, or unreasonably delayed action, on their borrower
defense applications. At the time the suit was filed, over 210,000
such applications were pending. The Plaintiffs asked the district
court to compel the Defendants to restart the process of
adjudicating their applications.
The district court certified a class of 160,000 borrower defense
applicants, and the Department compiled an administrative record of
documents that supported its decision making. The parties filed
cross motions for summary judgment. The Defendants claimed that the
agency inaction was not a "policy" but rather a lawful result of
staffing shortages, competing priorities, and that the delays were
unavoidable because "issuing final decisions on such claims is
time-consuming and complex, with many steps in the adjudicatory
process, and agencies must be given, within reason, the time
necessary to analyze the issues presented so that they can reach
considered results."
Before the district court ruled on the summary judgment motions,
the parties negotiated a proposed settlement that included an
18-month deadline to resolve all outstanding claims. The district
court preliminarily approved the settlement, but before the class
fairness hearing was held, the Department sent out form letters
denying 118,000 borrower defense applications at a denial rate of
89.8%. The letters were brief and offered no reasoning for the
Department's decisions.
The district court denied final approval of the settlement after
finding no "meeting of the minds." The district court ordered
updated written discovery and depositions of up to five Department
officials to inquire into topics including "the development and use
of the form denial letters" and "the extent to which the difficulty
of reviewing borrower-defense applications actually caused or
justified the Secretary's 18-month delay." The district court did
not authorize the deposition of then-secretary DeVos, however, may
justify such a deposition at a later date.
The Plaintiffs took four depositions of current and former
high-ranking Department officials involved in borrower defense
policy and received about 2,500 documents from defendants. On Jan.
6, 2021, the Plaintiffs informed the Defendants that they would be
asking the district court for leave to depose DeVos. DeVos resigned
as secretary on January 7, for unrelated reasons, and on January
12, the district court authorized the class counsel to take her
deposition. It instructed the counsel to "subpoena Ms. DeVos" for
any such deposition. The Plaintiffs then served a subpoena for a
nonparty deposition on DeVos pursuant to Federal Rule of Civil
Procedure 45.
Ms. DeVos and the Department moved to quash the subpoena in the
Southern District of Florida. That court referred the matter to a
magistrate judge, and no party objected. The Plaintiffs moved to
transfer the motion to quash to the Northern District of
California, where the parties are litigating the underlying class
action. DeVos and the Department opposed the motion, but the
magistrate judge in Florida granted the transfer.
Before the Department or DeVos sought review of the transfer order
by the Florida district court judge, the case was electronically
transferred to California. DeVos and the Department asked the
Florida district court to stay the transfer pending an opportunity
to object to the magistrate judge's order pursuant to Federal Rule
of Civil Procedure 72. The Florida district court denied the motion
because the case had already been transferred. The Florida district
court noted, however, that although the transfer was effectuated
prior to the objections period, the same result would follow --
rendering DeVos' procedural concern harmless."
DeVos petitioned the Eleventh Circuit for a writ of mandamus,
arguing that the magistrate judge exceeded his authority in
transferring the case before the district judge considered her Rule
72(a) objections and that the Florida district judge erred in
failing to stay the transfer. The Eleventh Circuit denied her
petition because she had not established that her right to relief
was clear and indisputable.
The Department and DeVos filed motions to quash the subpoena in the
Northern District of California. The district court denied the
motions, finding that "exceptional circumstances" warranted the
taking of DeVos's deposition. It authorized a three-hour deposition
of DeVos to "probe matters broadly related to the actual cause for
the challenged 18-month delay, the development, approval, and use
of the form-denial letters, and the Secretary's involvement in
clearing the backlog of our class members' borrower-defense
claims." The district court noted that the order does not "malign
the Secretary's deliberative-process privilege" or her ability to
assert it.
The Department and DeVos now petition the Ninth Circuit for a writ
of mandamus ordering the district court to reverse its order
denying the motion to quash the subpoena of the former secretary.
DeVos also seeks a writ of mandamus directing the district court to
transfer the subpoena motion back to the Southern District of
Florida.
III. Analysis
A.
Before reaching the gravamen of the appeal, the Ninth Circuit first
considers DeVos' petition for a writ of mandamus ordering the
district court to transfer the motion to quash back to the Southern
District of Florida. The crux of DeVos' argument is that the
California district court does not have subject matter jurisdiction
because a magistrate judge, not a district judge, ordered the
transfer to California and the matter transferred before the
Florida district court could review that order.
Because DeVos' petition does not satisfy the Bauman factors, the
Ninth Circuit denies the request for a writ of mandamus ordering
the district court to transfer the motion to the Southern District
of Florida. It explains that the case law is clear that it does not
have jurisdiction to review the procedural or substantive propriety
of the Florida court's transfer order. However, it is not asked to
review the propriety of the Florida court's transfer order, but
rather its jurisdiction to enter such an order. The Ninth Circuit
holds that it does have jurisdiction to review the Florida court's
jurisdiction to enter the order because if the Florida court did
not have jurisdiction, its order would have no effect.
The magistrate judge had jurisdiction to issue the transfer order.
The limits of a magistrate judge's jurisdiction are established in
28 U.S.C. Section 636. The order merely transferred the action to
another federal court and did not affect the viability of a claim
or defense or the federal appellate courts' ability to correct
errors. Thus, the transfer order was nondispositive, and the
magistrate judge had jurisdiction to enter it.
The Ninth Circuit adds that jurisdiction remains even though the
Florida district court did not review the objections to the
magistrate judge's transfer order. It opines that the matter
transferred to California before the Florida district court could
review the objections to the transfer order. Whether or not DeVos
had an opportunity to file objections does not affect the
magistrate judge's jurisdiction to enter the transfer order,
because it is axiomatic that the Federal Rules of Civil Procedure
do not create or withdraw federal jurisdiction.
The Ninth Circuit declines to issue a writ of mandamus on this
jurisdictional issue because there was no error, any alleged error
is unlikely to often be repeated, there is no prejudice, and there
are no new or important issues at stake. It turns now to the
petition for a writ of mandamus directing the district court to
quash the subpoena for DeVos' deposition.
B.
On this issue, the Ninth Circuit is tasked with determining whether
the district court, by denying the motion to quash the subpoena to
depose the former secretary, inappropriately breached the barrier
separating one co-equal branch of the federal government from
another. The executive branch is required by the Constitution to
execute the laws passed by Congress and the courts are to decide,
among other duties, cases or controversies related to the
executive's implementation of those laws. Courts are not, however,
to second-guess policy decisions properly delegated to the
executive branch by the legislative branch. This balance is
essential to the constitutional design.
In 1941, before the Administrative Procedure Act became law, the
Supreme Court explored the questioning of a cabinet secretary in
United States v. Morgan, 313 U.S. 409 (1941). In the course of
litigation about an agency action, the district court allowed the
deposition of the Secretary of Agriculture. Morgan is the seminal
authority on the deposition of cabinet secretaries and other
high-ranking government officials, but some courts have,
nevertheless, allowed for the taking of such depositions in
extraordinary circumstances.
The issue of cabinet secretary depositions has not often come
before circuit courts, but when it has, they have recognized that
Morgan is not an absolute bar against the taking of such
depositions, and that cabinet secretaries may be deposed under
extraordinary circumstances. Although district courts have
occasionally ordered such depositions, circuit courts have issued
writs of mandamus to stop them when asked to, generally finding
that the circumstances before them were not extraordinary.
The parties in our case each contends that the Supreme Court's stay
of Secretary Ross' deposition supports its arguments. In its
unreasoned order, however, the Court did not address the propriety
of deposing a cabinet secretary on the merits. Without any
understanding of how the Court decided the issue, the Ninth Circuit
has no guidance on how to apply its decision to the deposition
sought.
C.
The district court denied the Department's and DeVos's motion to
quash the subpoena because it concluded that exceptional
circumstances warranted the taking of DeVos's deposition. The
district court cobbled together three categories of exceptional
circumstances it claimed can justify the deposition of a cabinet
secretary. The district court described the three categories as:
(1) "a strong showing of agency bad faith or improper behavior";
(2) the secretary "has unique and relevant first-hand knowledge";
and (3) "the necessary information cannot be obtained through other
less burdensome or intrusive means."
Having reviewed the record, and pertinent law, the Ninth Circuit is
left with a firm conviction that the district court clearly erred
in describing the requirements of the second two categories, and
how, properly described, they apply in the case. Looking to the
separation of powers principles discussed and further case law, it
holds that extraordinary circumstances sufficient to justify the
taking of a cabinet secretary's deposition exist when the party
seeking the deposition can demonstrate: (1) a showing of agency bad
faith; (2) the information sought from the secretary is essential
to the case; and (3) the information sought from the secretary
cannot be obtained in any other way. All three factors must be
satisfied in order to take a secretary's deposition.
The Ninth Circuit opines that (i) the Department's bad faith was
apparent to the district court; (ii) the district court clearly
erred in allowing DeVos' deposition because the information sought
from DeVos, while perhaps relevant, is not essential to the claims
alleged by the Plaintiffs; and (iii) the Plaintiffs have not
established that the information they seek from DeVos is
unobtainable in any other way. Hence, the district court clearly
erred in denying the motion to quash the subpoena to take the
deposition of DeVos. There is no indication that DeVos holds
information that is essential to the Plaintiffs' case or that is
otherwise unobtainable.
D.
The Ninth Circuit's reasoning applies even though DeVos is no
longer serving as secretary. The requested deposition concerns her
actions taken during her tenure as secretary and "we note that the
process-inquiry rationale of Morgan and its successors hardly
becomes inapplicable upon an official's departure from her office."
The time constraint concerns discussed above similarly continue to
apply. The threat of having to spend their personal time and
resources preparing for and sitting for depositions could hamper
and distract officials from their duties while in office. If
allowed the minute cabinet secretaries leave office, overwhelming
and unnecessary discovery could also discourage them from taking
that office in the first place or leaving office when there is
controversy.
E.
The Ninth Circuit further notes that the other Bauman factors,
besides clear error, support the issuance of a writ of mandamus. On
the adequacy of other relief, courts have routinely found that, in
cases involving high-level government officials, there are no other
means of relief beyond mandamus because to disobey the subpoena,
face contempt charges, and then appeal would not be appropriate for
a high-ranking government official. These serious repercussions for
the relationship between two co-equal branches of government can
remain even if the official is no longer in office when the
official faces the subpoena because of their role in the executive
branch. On the second Bauman factor, the harm to DeVos is the
intrusion of the deposition itself, and so the harm is not
correctable on appeal, even if her testimony is excluded at trial.
For the fourth and fifth factors, although the district court's
error is not new or often repeated, it is an important issue
implicating constitutional concerns.
IV. Conclusion
The petitions for a writ of mandamus directing the district court
to quash the subpoena for DeVos' deposition are granted. The
district court is ordered to quash the subpoena for the deposition
of former Secretary of Education, Elisabeth DeVos. The petition for
a writ of mandamus directing the district court to transfer the
motion to Florida is denied.
A full-text copy of the Court's Feb. 4, 2022 Opinion is available
at https://tinyurl.com/y9dr39j5 from Leagle.com.
Sean Janda (argued), Mark R. Freeman, Mark B. Stern, and Joshua M.
Salzman, Appellate Staff; Sarah E. Harrington, Deputy Assistant
Attorney General; United States Department of Justice, Civil
Division; in Washington, D.C.; for Petitioners United States
Department of Education and Miguel A. Cardona.
Jesse Panuccio (argued) -- jpanuccio@bsfllp.com -- Boies Schiller
Flexner LLP, in Fort Lauderdale, Florida; David Boies --
dboies@bsfllp.com -- Boies Schiller Flexner LLP, Armonk, New York;
for Petitioner Elisabeth Devos.
Margaret E. O'Grady (argued) and Rebecca C. Ellis, Harvard Law
School Federal Tax Clinic at Legal Services Center, in Jamaica
Plain, Massachusetts; Joseph Jaramillo, Housing and Economic Rights
Advocates, in Oakland, California; for Real Parties in Interest.
VITAL PHARMACEUTICALS: Brown Sues Over BANG Drinks' Deceptive Label
-------------------------------------------------------------------
TIMOTHY BROWN, individually and on behalf of all others similarly
situated, Plaintiff v. VITAL PHARMACEUTICALS, INC., d/b/a VPX
Sports, Defendant, Case No. 1:22-cv-00805-BMC (E.D.N.Y., February
11, 2022) is a class action against the Defendant for unjust
enrichment, fraud, and violation of the New York Deceptive Trade
Practices Act.
According to the complaint, the Defendant is engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
its BANG energy beverage products. The Defendant marketed its BANG
products with "SUPER CREATINE" label, which the Defendant touts as
a performance ingredient that contributed in part to the products'
rise in prominence. In reality, the products do not contain any
creatine at all. Rather, what the Defendant calls "SUPER CREATINE"
is really Creatyl L-leucine, which is a fundamentally different
molecule than creatine. The Plaintiff and Class members would not
have purchased the products or they would have paid less for them
had they known that they do not contain any creatine at all, and
that they do not provide the claimed benefits of creatine, the suit
says.
Vital Pharmaceuticals, Inc. is a manufacturer of nutritional
supplement products, with its principal place of business at 1600
North Park Drive, Weston, Florida. [BN]
The Plaintiff is represented by:
Jonathan Shub, Esq.
Kevin Laukaitis, Esq.
SHUB LAW FIRM LLC
134 Kings Highway East, 2nd Floor
Haddonfield, NJ 08033
Telephone: (856) 772-7200
Facsimile: (856) 210-9088
E-mail: jshub@shublawyers.com
klaukaitis@shublawyers.com
- and –
Nick Suciu III, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
6905 Telegraph Road, Suite 115
Bloomfield Hills, MI 48301
Telephone: (313) 303-3472
E-mail: nsuciu@milberg.com
- and –
Rachel Soffin, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
800 S. Gay Street, Suite 1100
Knoxville, TN 37929
Telephone: (865) 864-8541
E-mail: rsoffin@milberg.com
- and –
L. Timothy Fisher, Esq.
Joel D. Smith, Esq.
Yeremey O. Krivoshey, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Facsimile: (925) 407-2700
E-mail: ltfisher@bursor.com
jsmith@bursor.com
ykrivoshey@bursor.com
- and –
Reuben D. Nathan, Esq.
NATHAN & ASSOCIATES, APC
2901 W. Coast Highway, Suite 200
Newport Beach, CA 92663
Telephone: (949) 270-2798
Facsimile: (949) 209-0303
E-mail: rnathan@nathanlawpractice.com
VOESTALPINE AG: Settles Class Suit Over Emissions for $88 Million
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Jonathan Tirone, writing for Bloomberg Quint, reports that
Voestalpine AG agreed to settle a class action lawsuit filed by
Texans living near an ironworks owned by the Austrian steelmaker,
which was accused of endangering people's health and property.
About a fifth of the $88.4 million settlement is earmarked for
Texans who sought damages resulting from clouds of metallic dust
that occasionally billowed from Voestalpine's plant in Corpus
Christi, according to a court document. The rest of the money is
being spent on retrofitting the facility to avoid future emissions.
"We had originally underestimated the problem," Voestalpine Chief
Executive Herbert Eibensteiner said on Feb. 9 during a conference
call. "We've now taken significant steps to get it under control."
The Linz, Austria-based company spent more than $1 billion building
the ironworks in Texas, where it tapped abundant supplies of cheap
natural gas. Some of the iron it produced on the Gulf Coast was
shipped back to workshops that made the steel for the
1,200-kilometer (750-mile) Nord Stream 2 pipeline, for which it
agreed to supply 300,000 tons of steel plate just months before
opening the Texas opening the Texas plant in 2016.
The Nord Stream 2 link between Russia and Germany has been
aggressively contested by U.S. politicians including Texan
Republican Senator Ted Cruz.
Nord Stream 2 Pipeline Supplier Entangled by Texas Pollution
A fairness hearing to approve the settlement will be held in the
U.S. District Court for the Southern District of Texas on June 15.
Claimants have until Feb. 11 to file for compensation or object to
the settlement. The court has taken no position on the merits of
the plaintiffs' claims nor on the defendant's defenses, according
to the court document.
More than 250 complaints had been filed against Voestalpine with
Texas regulators, with residents saying they have been unable to
have normal use and enjoyment of their property due to the
accumulation of the iron ore dust on cars, homes, yards, pools and
playgrounds, state investigators wrote in a 338-page report.
Voestalpine reported third-quarter earnings on Feb. 9 that beat
analyst estimates. [GN]
[*] Fisher Phillips Discusses H.R. 4445 Bill About Sexual Assault
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Fisher Phillips disclosed that despite being described as "more
deeply divided than ever," Congress is poised to pass a
#MeToo-inspired bill with bipartisan support that would prevent
employers from enforcing pre-dispute arbitration agreements without
the employee's consent in cases involving sexual harassment and
sexual assault. On February 7, the House of Representatives
overwhelmingly approved a bill targeting mandatory arbitration of
sexual harassment and sexual assault claims by a vote of 335-97,
with 113 of 212 Republicans voting in favor of the bill. More
surprisingly, a nearly identical companion bill in the Senate has
support from Republicans -- including the bill's co-sponsor Senator
Lindsey Graham -- and will likely be up for a vote. Seeking to
capitalize on this perceived momentum, the Biden administration has
described the bill as a precursor to "broader legislation" which
would bar forced arbitration of employment claims on the basis of
"race, wage theft, and unfair labor practices." Here are five key
takeaways for employers as we await enactment of this rare
bipartisan employment legislation that could upend a common
workplace practice.
Background
Before examining the specific provisions of the "Ending Forced
Arbitration of Sexual Assault and Sexual Harassment Act," some
background is in order. Both the House and Senate bills would amend
the Federal Arbitration Act (FAA) by narrowing its scope and
applicability, thereby potentially gutting several Supreme Court
rulings that employers have grown to rely upon.
In its current form, the FAA broadly encourages private resolution
of employment disputes through arbitration by providing that
agreements to arbitrate are "valid, irrevocable, and enforceable,
save upon such grounds as exist at law or in equity for the
revocation of any contract." In other words, any state law that is
more hostile to arbitration agreements than to contracts generally
is invalid and preempted by the FAA.
For this reason, the U.S. Supreme Court frequently strikes down
state laws derived "precisely from the fact that a contract to
arbitrate is at issue" as well as those imposing procedural
requirements that "single out arbitration provisions for suspect
status" (g. requiring notice of an arbitration clause to be typed
in underlined capital letters on the first page of a contract).
Moreover, in 2018, SCOTUS delivered a win for employers in Epic
Systems Corporation v. Lewis by holding that mandatory class action
waivers in employment-related arbitration agreements are
enforceable under the FAA. Specifically, the Court held that such
waivers do not violate employees' rights to engage in "concerted
activities" under the National Labor Relations Act (NLRA).
As discussed below, each of these employer-friendly rulings may be
undermined by the forthcoming legislation.
The House Bill
On February 7, the House of Representatives passed its version of
the "Ending Forced Arbitration of Sexual Assault and Sexual
Harassment Act" (H.R. 4445), prohibiting employers from enforcing
pre-dispute arbitration agreements in cases involving sexual
harassment and sexual assault without the employee's consent. This
bill defines a "sexual assault dispute" as a dispute involving a
"nonconsensual sexual act or contact," as such terms are defined
under federal, tribal, or state law. Similarly, H.R. 4445 defines a
"sexual harassment dispute" as "a dispute relating to conduct that
is alleged to constitute sexual harassment" under federal, tribal,
or state law.
In short, H.R. 4445 allows employees to decide whether any
pre-dispute arbitration agreements and pre-dispute joint-action
waivers (i.e., class or collective action waivers) for disputes
regarding sexual assault and sexual harassment are enforceable,
regardless of whether such agreements were mandatory or voluntarily
agreed to by employees (e.g., by way of an opt-out provision). The
bill declares pre-dispute agreements invalid and unenforceable as a
matter of law at the election of the employee bringing the claim.
This permits an employee alleging sexual harassment to pursue an
individual or class action in court even if they previously signed
an agreement to arbitrate the claim individually.
Finally, H.R. 4445 provides that its applicability is always
determined by a court under federal law. Unlike the FAA in its
current form, this would be true even if the employee also
challenges other terms of the contract, and irrespective of whether
the agreement delegates the issue of "arbitrability" to the
arbitrator. This is significant, as SCOTUS recently punted on the
question of who decides arbitrability just last month.
The Senate Bill
The Senate Bill (S. 2342) likely to come up for a vote is virtually
identical to the House Bill, with one key exception. It provides a
more specific definition of "sexual harassment dispute," which it
defines as a "dispute relating to any of the following conduct
directed at an individual or group of individuals:
-- Unwelcome sexual advances.
-- Unwanted physical contact that is sexual in nature, including
assault.
-- Unwanted sexual attention, including unwanted sexual comments
and propositions for sexual activity.
-- Conditioning professional, educational, consumer, health care,
or long-term care benefits on sexual activity.
-- Retaliation for rejecting unwanted sexual attention."
As of mid-January, S. 2342 had the public support of 10 Republican
senators -- which could mean it has filibuster-proof numbers at its
disposal. Initially co-sponsored by Senator Lindsey Graham of South
Carolina in 2017, Senator Thom Tillis of North Carolina joined as
the tenth co-sponsor in January 2022. With S. 2342 being
co-sponsored by senators in consistently red states and public
opinion being strongly aligned on the issue, a final version is
likely to find its way to President Biden's desk in the near
future.
5 Key Takeaways for Employers
With all of that background out of the way, what are the five
biggest takeaways for employers as we begin to envision a life
without the full array of arbitration solutions at your disposal?
The Ball Would Be in the Employee's Court
Congressional intent is unequivocally clear, as both the H.R. 4445
and S. 2342 stand in stark contrast to SCOTUS precedent
interpreting the FAA. If either of these Bills are signed into law,
employers can expect that going forward: (i) an employee alleging
sexual harassment may, but is not required, to pursue claims of
sexual harassment in court; and (ii) the employee may elect to
bring such claims individually or as a class.
Courts, Not Arbitrators, Would Decide Whether Sexual Harassment and
Sexual Assault Claims Are Subject to Arbitration
Just as the proposed bills are clear as to the employee's choice of
forum, they are equally clear about who decides which dispute
resolution method is proper. If an employee files a sexual
harassment or sexual assault claim in federal court, it would be
for the court, not an arbitrator, to apply federal law and
determine whether the claims are subject to arbitration. Therefore,
once an employee chooses to litigate a claim of sexual harassment
or sexual assault in federal court, the case would be likely to
remain there.
Not All Claims of Sexual Harassment and Sexual Assault Would Be
Filed in Court, As Some Employees May Prefer the Privacy Afforded
by Arbitration
Proponents of these bills assert that of the more than 60 million
Americans estimated to have signed arbitration agreements,
virtually all of them would prefer to litigate sexual harassment
claims in court. According to advocates of the bills, mandatory
arbitration agreements discourage victims of sexual harassment or
sexual assault from coming forward.
However, multiple studies have shown that this assessment is
complicated, and victims of sexual harassment or sexual assault may
be afraid of the publicity or scrutiny that may follow should they
choose to come forward. Therefore, while the number of sexual
harassment and/or sexual assault claims filed in court would be
likely to increase with this legislation, many employees could
still elect to pursue arbitration instead.
Employer Concerns About the Lack of Confidentiality May Be
Overblown
Many employers prefer arbitration based upon a mistaken belief that
the proceedings are completely confidential. While arbitration
proceedings are not filed on an electronic public docket like
litigation in federal court, that does not mean that the
proceedings are confidential or that the outcome will not become
public. Rather, in the absence of an enforceable confidentiality
provision in the arbitration agreement, the outcome (including an
award in favor of the employee) is likely to become publicly
available.
The Biden Administration Will Seek to Further Limit Arbitration of
Employment Disputes, While Some Republicans Worry About a "Slippery
Slope"
The passage of H.R. 4445 is consistent with the Biden
administration's agenda, which is "committed to eliminating sexual
harassment and assault" – and has the broader goal of ending
arbitration of various types of employment disputes. Upon the
bill's passage, the White House stated that it looks forward to
working with Congress on broader legislation that addresses "other
forced arbitration matters, including arbitration of claims
regarding discrimination on the basis of race, wage theft, and
unfair labor practices."
While H.R. 4445 is a win for the Biden administration, some
Republicans have expressed concern about the "slippery slope"
effect of broader legislation, and the potential eradication of
arbitration clauses in virtually all types of employment matters.
This could be of concern to employers in the future, as broader
legislation may further empower plaintiffs and vastly increase the
number and cost of civil lawsuits.
In fact, in 2019, House Democrats passed the Forced Arbitration
Injustice Repeal Act (FAIR Act), which would have broadly
prohibited mandatory pre-dispute arbitration agreements as well as
class or collective action waivers. The FAIR Act did not pass the
Senate in 2019, but was reintroduced in March 2021 and may be
revisited at some point during the current session. As bipartisan
support continues to build over S. 2342, employers should prepare
for additional legislation surrounding arbitration agreements in
the employment realm, as the Biden administration seeks to
capitalize on its current advantage.
Conclusion
In a divisive and vitriolic political environment, it is surprising
to see Democrats and Republicans work together to legislate
mandatory arbitration of sexual harassment and sexual assault
claims. If this bill passes the Senate and is signed into law by
President Biden, employers should be prepared for increased
litigation in court related to sexual assault and harassment
claims. We will monitor developments related to this legislation
and provide updates as warranted, so make sure you are subscribed
to Fisher Phillips' Insight system to get the most up-to-date
information. If you have questions, contact your Fisher Phillips
attorney or the authors of this Insight. [GN]
[*] Judge Warns Against Personal Prejudice in Class Action Debate
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Hannah Wootton, writing for Australian Financial Review, reports
that the Federal Court's most senior judge has called on Parliament
to put aside "personal prejudices" when considering class action
reform and instead remember that such litigation is "a vehicle for
public good".
Speaking at the launch of the latest edition of Class Actions in
Australia on Feb. 9, Chief Justice James Allsop said class actions
faced "an ever-present danger" of people forgetting their inherent
public benefit.
The warning came days after Attorney-General Michaelia Cash said
the government would not press its controversial litigation funding
reforms, which would see the share of class action payouts
litigation funders and lawyers could claim capped at 30 per cent
and common fund orders limited, until after the election.
"Together with litigation funding . . . and now the statutory
provisions for contingency fees, questions of deep importance for
the legal profession, the administration of justice and society
have been brought forward," Chief Justice Allsop said.
"It's important for the consideration of those matters, if I may
put it this way without wishing to delve into the fray of any of
the issues currently flying around, that it's important for
Parliament, the executive, the judiciary and the profession, and
those otherwise interested, that personal prejudices and assumed
positions from limited experience be put to one side."
He said that it was "hugely important" that people remembered class
actions were in the public interest.
'A sense of public good'
"The class action regime has an ever-present danger that needs to
be worked against at all times, which is that it should never be
seen as anything other than a vehicle for public good . . . it's
not a view that should be able to be contested."
The Chief Justice said he was not "naive enough to ignore practical
realities of professional life and the practical realities of
people having their balance sheets attacked by people", but added
that those involved still needed to "maintain that sense of public
good".
He said the development of the class action regime had "delivered
results to people that never could have been brought about
before".
"One of the great challenges, I think, is to maintain that sense of
the public good not through charitable works, but through the
rightful administration of justice in how the regime is
administered by practitioners and the courts."
Courts tightening screws on payouts
Speaking on the proposed reforms, Herbert Smith Freehills partner
and Class Actions in Australia co-author Jason Betts doubted the 30
per cent costs and funding cap would stop low-value or meritless
class actions being filed.
"The reality may be that entrepreneurial promoters will still
support those claims, but once commenced they will be more
difficult to settle for low values that reflect their merit," he
said.
"If a settlement has to cover legal fees, a funding commission and
provide a 70 per cent component for group members to be
presumptively fair, will the new law increase the average
settlement value for Australian class actions?"
He also predicted that plaintiff law firms would instead just file
claims in the Victorian Supreme Court, where they claim contingency
fees to still get "a healthy return", rather than the Federal
Court.
"We will see prominent and large class actions primarily in the
Feds move back to Victoria, and it's the obvious point, but there's
something unsatisfactory about the jurisdiction that's chosen for a
class action being where the recovery for those funding the class
action is the largest. I'm not sure that's how jurisdictions should
be chosen."
Mr Betts said courts were "already starting to tighten the judicial
screws on payouts" without any legislative cap being proposed.
"I've never seen a greater level of judicial scrutiny brought to
settlements and I actually think judges having maximum power and
discretion is a better solution [than a legislative cap] because
they decide [damages] in a bespoke way." [GN]
[*] U.S. Class Action Settlement Payments Discussed
---------------------------------------------------
Top Class Actions readers are reporting class action settlement
checks and PayPal payments from several settlements.
Hill's Pet Food Settlement Payments
TCA readers are receiving payments of more than $2,500 from a
Hill's pet food class action settlement.
The settlement benefited consumers who purchased Hill's
Prescription Diet or Science Diet canned food between Sept. 1,
2018, and May 31, 2019.
According to plaintiffs in the Hill's class action lawsuit,
Prescription Diet and Science Diet canned food contained too much
vitamin D. Pet owners say their dogs suffered from vitamin D
toxicity due to the excessive levels found in the products.
Hill's agreed to resolve these claims with a $12.5 million
settlement deal.
Under the terms of the settlement, pet owners could collect up to
$20 without proof of purchase or a full refund with a receipt.
Class Members whose dogs suffered from injuries consistent with
vitamin D toxicity were eligible to seek compensation for
out-of-pocket medical expenses.
TCA readers received payments from the settlement ranging from $85
to over $2500!
In order to receive payments from the Hill's pet food class action
settlement, Class Members were required to submit a valid claim
form by July 2, 2021.
Plaintiffs and Class Members in the Hill's class action lawsuit are
represented by lawyers from Kamberlaw LLC, Mason Lietz & Klinger
LLP, Reese LLP, and Stueve Siegel Hanson LLP.
The Hill's Pet Food Class Action Lawsuit is In Re: Hill's Pet
Nutrition Inc. Dog Food Products Liability Litigation, MDL No. 2887
in the U.S. District Court for the District of Kansas.
Ally Financial Class Action Settlement Checks Mailed
Top Class Actions readers reported receiving class action
settlement checks for $41 in an Ally Financial repossession
settlement.
The settlement benefited a national Class and a Missouri Class of
borrowers whose collateral was repossessed by Ally Financial before
March 19, 2021.
Plaintiffs in the Ally Financial class action lawsuit claimed that
the bank failed to properly comply with state law when sending
repossession letters. Ally Financial did not admit any wrongdoing
in consumer repossession cases. However, the company did agree to
pay $87.5 million to resolve these allegations.
Under the terms of the settlement, Class Members were projected to
receive payments between $1.28 and $686.92 -- average payments were
estimated to be $28.90. Top Class Actions readers are receiving
payments above this average, including one reported payment of
$41.
The settlement also included non-monetary benefits such as debt
reduction, deletions from credit reports, and more.
No claim form was required to benefit from the settlement. Class
Members had until July 13, 2021 to opt out of the settlement.
Plaintiffs in the case are represented by attorneys from Onderlaw
LLC.
The Ally Financial Repossession Class Action Lawsuit is Ally
Financial Inc. v. Haskins, Case No. 16JE-AC01713-01 in the 23rd
Judicial Circuit Court for Jefferson County, Missouri.
L.A. Lynwood Jail Strip Search Class Action Settlement Checks
Our readers receive payments of over $400 in connection with an
unfair strip-search class action settlement.
The settlement benefits individuals who were subjected to a strip
search outside of the Los Angeles Sheriff's Lynwood Jail bus garage
between March 5, 2008, and Jan. 31, 2015.
According to plaintiffs in the strip search class action lawsuit,
women detained at the Los Angeles jail were subjected to an
excessive number of strip searches. Often these searches were
degrading and involved deputies yelling profanity, the plaintiffs
contend. This treatment allegedly violated detainees' Fourth
Amendment rights.
Los Angeles County agreed to resolve claims surrounding its strip
searches with a $53 million settlement.
Under the terms of the settlement, Class Members were guaranteed
payments of at least $200. However, payments could have been as
high as thousands of dollars for multiple searches.
According to TCA's readers, payments worth hundreds are being sent
to individuals affected by the settlement.
In order to benefit from the settlement, Class Members had to
submit a valid claim form by June 4, 2020.
Plaintiffs and Class Members are represented by lawyers from Kaye
McLan Bednarski & Litt, Donald Cook Attorney at Law, Law Offices of
Colleen Flynn, and Law Offices of Cynthia Anderson-Barker.
The L.A. Strip Search Class Action Lawsuit is Mary Amador, et al.
v. Sheriff Leroy D. Baca, et al., Case No. 2:10-cv-01649-SVW-JEM in
the U.S. District Court for the Central District of California.
Canidae Dog Food Settlement Payments
TCA readers have received electronic payments and checks of $5 in
connection with a Canidae dog food class action settlement.
The settlement benefited consumers who purchased Canidae pet food
products between July 9, 2016, and April 31, 2021. A number of
products were included.
According to plaintiffs in the Canidae class action lawsuit, the
company's pet food included misleading marketing claims that the
products were "guaranteed" to be free of detectable levels of soy
or chicken. Despite these claims, Canidae pet food was tested and
revealed to contain those ingredients.
Canidae hasn't admitted any wrongdoing but agreed to resolve these
claims with a class action settlement deal.
Under the terms of the settlement, Canidae customers were eligible
to receive up to $125. Higher payments were available for those who
purchased over $50 in product, while purchases of less than $50
would be eligible for only $5.
Several Top Class Actions readers have reported receiving checks or
electronic payments of $5 from this settlement.
In order to benefit from the settlement, Class Members had to
submit a valid claim form by July 29, 2021.
Plaintiffs in the Canidae class action lawsuit are represented by
lawyers from Greg Coleman Law PC.
The Canidae Class Action Lawsuit is Hill, et al. v. Canidae Corp.,
Case No. 5:20-CV-01374-JGB-SP in the U.S. District Court for the
Central District of California. [GN]
Asbestos Litigation
ASBESTOS UPDATE: Ashland Global Has $320MM Total Reserves
---------------------------------------------------------
Ashland Global Holdings Inc., has reported a total reserves for
asbestos claims of $320 million at September 30, 2021 compared to
$307 million at December 31, 2021, according to the Company's Form
10-Q filing with the U.S. Securities and Exchange Commission.
The Company states, "Ashland is subject to liabilities from claims
alleging personal injury caused by exposure to asbestos. Such
claims result from indemnification obligations undertaken in 1990
in connection with the sale of Riley Stoker Corporation (Riley) and
the acquisition of Hercules in November 2008. Although Riley, a
former subsidiary, was neither a producer nor a manufacturer of
asbestos, its industrial boilers contained some asbestos-containing
components provided by other companies. Hercules, an indirect
wholly-owned subsidiary of Ashland, has liabilities from claims
alleging personal injury caused by exposure to asbestos. Such
claims typically arise from alleged exposure to asbestos fibers
from resin encapsulated pipe and tank products sold by one of
Hercules’ former subsidiaries to a limited industrial market.
"To assist in developing and annually updating independent reserve
estimates for future asbestos claims and related costs given
various assumptions for Ashland and Hercules asbestos claims,
Ashland retained third party actuarial experts Gnarus. The
methodology used by Gnarus to project future asbestos costs is
based largely on recent experience, including claim-filing and
settlement rates, disease mix, enacted legislation, open claims and
litigation defense. The claim experience of Ashland and Hercules
are separately compared to the results of previously conducted
third party epidemiological studies estimating the number of people
likely to develop asbestos-related diseases. Those studies were
undertaken in connection with national analyses of the population
expected to have been exposed to asbestos. Using that information,
Gnarus estimates a range of the number of future claims that may be
filed, as well as the related costs that may be incurred in
resolving those claims. Changes in asbestos-related liabilities and
receivables are recorded on an after-tax basis within the
discontinued operations caption in the Statements of Consolidated
Comprehensive Income (Loss)."
A full-text copy of the Form 10-Q is available at
https://bit.ly/3BpKm8h
ASBESTOS UPDATE: Constellation Energy Has $82MM Est. Liabilities
----------------------------------------------------------------
Constellation Energy Corporation, at September 30, 2021 and
December 31, 2020, has a recorded estimated liabilities of
approximately $82 million and $89 million, respectively, in total
for asbestos-related bodily injury claims, according to the
Company's Form 8-K filing with the U.S. Securities and Exchange
Commission.
The Company states, "As of September 30, 2021, approximately $19
million of this amount related to 211 open claims presented to us,
while the remaining $63 million is for estimated future
asbestos-related bodily injury claims anticipated to arise through
2055, based on actuarial assumptions and analyses, which are
updated on an annual basis. On a quarterly basis, we monitor actual
experience against the number of forecasted claims to be received
and expected claim payments and evaluates whether adjustments to
the estimated liabilities are necessary.
"We maintain a reserve for claims associated with asbestos-related
personal injury actions in certain facilities that are currently
owned by us or were previously owned by ComEd and PECO. The
estimated liabilities are recorded on an undiscounted basis and
exclude the estimated legal costs associated with handling these
matters, which could be material.
"It is reasonably possible that additional exposure to estimated
future asbestos-related bodily injury claims in excess of the
amount accrued could have a material, unfavorable impact in the
financial statements. However, management cannot reasonably
estimate a range of loss beyond the amounts recorded."
A full-text copy of the Form 8-K is available at
https://bit.ly/3JnE0ZY
ASBESTOS UPDATE: Dow Inc.'s Subsidiary Still Faces Exposure Suits
-----------------------------------------------------------------
Dow Inc.' wholly owned subsidiary, Union Carbide Corporation is and
has been involved in a large number of asbestos-related suits filed
primarily in state courts during the past four decades, according
to the Company's Form 10-K filing with the U.S. Securities and
Exchange Commission.
The Company states, "These suits principally allege personal injury
resulting from exposure to asbestos-containing products and
frequently seek both actual and punitive damages. The alleged
claims primarily relate to products that Union Carbide sold in the
past, alleged exposure to asbestos-containing products located on
Union Carbide's premises, and Union Carbide's responsibility for
asbestos suits filed against a former Union Carbide subsidiary,
Amchem Products, Inc."
A full-text copy of the Form 10-K is available at
https://bit.ly/3GKOrVS
ASBESTOS UPDATE: Ford Motor Faces Product Liability Claims
----------------------------------------------------------
Ford Motor Company is a defendant in numerous actions in state and
federal courts within and outside of the United States alleging
damages from injuries resulting from (or aggravated by) alleged
defects in its vehicles, according to the Company's Form 10-K
filing with the U.S. Securities and Exchange Commission.
The Company states, "Asbestos was used in some brakes, clutches,
and other automotive components from the early 1900s. Along with
other vehicle manufacturers, we have been the target of asbestos
litigation and, as a result, are a defendant in various actions for
injuries claimed to have resulted from alleged exposure to Ford
parts and other products containing asbestos. Plaintiffs in these
personal injury cases allege various health problems as a result of
asbestos exposure, either from component parts found in older
vehicles, insulation or other asbestos products in our facilities,
or asbestos aboard our former maritime fleet. We believe that we
are targeted more aggressively in asbestos suits because many
previously targeted companies have filed for bankruptcy or emerged
from bankruptcy relieved of liability for such claims.
"Most of the asbestos litigation we face involves individuals who
claim to have worked on the brakes of our vehicles. We are prepared
to defend these cases and believe that the scientific evidence
confirms our long-standing position that there is no increased risk
of asbestos-related disease as a result of exposure to the type of
asbestos formerly used in the brakes on our vehicles. The extent of
our financial exposure to asbestos litigation remains very
difficult to estimate and could include both compensatory and
punitive damage awards. The majority of our asbestos cases do not
specify a dollar amount for damages; in many of the other cases the
dollar amount specified is the jurisdictional minimum, and the vast
majority of these cases involve multiple defendants, sometimes more
than one hundred. Many of these cases also involve multiple
plaintiffs, and often we are unable to tell from the pleadings
which plaintiffs are making claims against us (as opposed to other
defendants). Annual payout and defense costs may become significant
in the future. Our accrual for asbestos matters includes probable
losses for both asserted and unasserted claims."
A full-text copy of the Form 10-K is available at
https://bit.ly/3JxmYbM
ASBESTOS UPDATE: Johnson Controls Defends Personal Injury Suits
---------------------------------------------------------------
Johnson Controls International plc and certain of its subsidiaries,
along with numerous other third parties, are named as defendants in
personal injury lawsuits based on alleged exposure to asbestos
containing materials, according to the Company's Form 10-Q filing
with the U.S. Securities and Exchange Commission.
The Company states, "These cases have typically involved product
liability claims based primarily on allegations of manufacture,
sale or distribution of industrial products that either contained
asbestos or were used with asbestos containing components.
The Company estimates the asbestos-related liability for pending
and future claims and related defense costs on a discounted basis.
In connection with the recognition of liabilities for
asbestos-related matters, the Company records asbestos-related
insurance recoveries that are probable.
A full-text copy of the Form 10-Q is available at
https://bit.ly/3oQqzKb
ASBESTOS UPDATE: Meritor Estimates $60MM in Asbestos Claims
-----------------------------------------------------------
Meritor, Inc., as of September 30, 2021, has reported that the best
estimate of the its obligation for asbestos-related claims over the
next 37 years was $60 million, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission.
The company recognized a liability for pending and future claims
over the next 37 years of $59 million as of December 31, 2021. The
ultimate cost of resolving pending and future claims is estimated
based on the history of claims and expenses for plaintiffs
represented by law firms in jurisdictions with an established
history with Rockwell.
The company engaged a third-party advisor with extensive experience
in assessing asbestos-related liabilities to conduct a study to
estimate its potential undiscounted liability for pending and
future asbestos-related claims as of September 30, 2021. Management
continuously monitors the underlying claims data and experience for
the purpose of assessing the appropriateness of the assumptions
used to estimate the liability.
A full-text copy of the Form 10-Q is available at
https://bit.ly/3JsCgyx
ASBESTOS UPDATE: Otis Worldwide Still Defends PI Lawsuits
---------------------------------------------------------
Otis Worldwide Corporation has been named as defendants in lawsuits
alleging personal injury as a result of exposure to asbestos,
according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission.
The Company states, "While we have never manufactured any
asbestos-containing component parts, and no longer incorporate
asbestos in any current products, certain of our historical
products have contained components manufactured by third parties
incorporating asbestos. A substantial majority of these
asbestos-related claims have been dismissed without payment or were
covered in full or in part by insurance or other forms of
indemnity. Additional cases were litigated and settled without any
insurance reimbursement. The amounts involved in asbestos related
claims were not material individually or in the aggregate as of,
and for the years ended, December 31, 2021 and December 31, 2020.
"The estimated range of total liabilities to resolve all pending
and unasserted potential future asbestos claims through 2059 is $22
million to $45 million as of December 31, 2021, and $23 million to
$45 million as of December 31, 2020. Because no amount within the
range of estimates is more likely to occur than any other, we
recorded the minimum amount of $22 million and $23 million as of
December 31, 2021 and 2020, respectively, which is principally
recorded in Other long-term liabilities on our Consolidated Balance
Sheets. Amounts are on a pre-tax basis, not discounted, and
excludes the Company's legal fees to defend the asbestos claims
(which will continue to be expensed as they are incurred). In
addition, the Company has an insurance recovery receivable for
probable asbestos related recoveries of approximately $5 million,
which is principally recorded in Other assets on our Consolidated
Balance Sheets as of December 31, 2021 and December 31, 2020."
A full-text copy of the Form 10-K is available at
https://bit.ly/33nQCRv
ASBESTOS UPDATE: Union Carbide Has $1.02BB Total Liabilities
------------------------------------------------------------
Union Carbide Corporation, at December 31, 2021, has reported a
total asbestos-related liability for pending and future claims,
including future defense and processing costs, of $1,016 million
($1,098 million at December 31, 2020), according to the Company's
Form 10-K filing with the U.S. Securities and Exchange Commission.
Union Carbide states, "The Corporation is and has been involved in
a large number of asbestos-related suits filed primarily in state
courts during the past four decades. These suits principally allege
personal injury resulting from exposure to asbestos-containing
products and frequently seek both actual and punitive damages. The
alleged claims primarily relate to products that UCC sold in the
past, alleged exposure to asbestos-containing products located on
UCC's premises, and UCC's responsibility for asbestos suits filed
against a former UCC subsidiary, Amchem. In many cases, plaintiffs
are unable to demonstrate that they have suffered any compensable
loss as a result of such exposure, or that injuries incurred in
fact resulted from exposure to UCC's products."
A full-text copy of the Form 10-K is available at
https://bit.ly/3HVi8EZ
*********
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