/raid1/www/Hosts/bankrupt/CAR_Public/220223.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, February 23, 2022, Vol. 24, No. 33
Headlines
ACTION NISSAN: Faces Rodriguez Class Suit Over Unwanted Robocalls
ACUTUS MEDICAL: Brown Sues Over 90% Drop of Common Stock Price
ADEAM INTERNATIONAL: Miller Files ADA Suit in S.D. New York
AMAZON.COM SERVICES: Hamilton Suit Removed to D. Colorado
AMERICAN FAMILY: Fails to Secure Customers' Info, Kowarsky Alleges
APPLE INC: iPad Mini 6 Made "Unusable," Lawsuit Alleges
ASTRA SPACE: Robbins Geller Reminds of April 11 Deadline
BRITISH COLUMBIA: Supreme Ct. Declines to Strike Opioid Suit Claims
BUCKEYE PARTNERS: Delaware Chancery Court Dismisses Ryan's Claims
CANADA: Privacy Czar Seeks Details on Release of Suit Claim Data
CANADA: Reconsiders Applications in Qalipu Mi'kmaq First Nation
CARPENTER HAZLEWOOD: Wolf Appeals FCRA Suit Dismissal to 9th Cir.
CELLULAR SALES: CSPA's Bid for Arbitration in Deardorff Suit OK'd
CLOROX COMPANY: Cosmetic Products Contain PFAS, Gruen Suit Says
CUMBERLAND VALLEY SCHOOL: ADA Suit Removed to M.D. Pennsylvania
DAVID GOMEZ: Shipp Files Suit in N.D. Illinois
DERMABELLA CLINIC: Class Cert. Sought in Sexual Assault Suit
DNC PARKS: Court Narrows Claims in Perez's 2nd Amended Labor Suit
DOLLAR BANK: Weingartner Sues Over Improper Charge of Fees
FIFTYONE MERCHANTS: Rendon Sues Over Unpaid OT for Restaurant Staff
FIRENZE JEWELS: Miller Files ADA Suit in S.D. New York
FIRST CLASS: Blair Sues Over Unpaid OT for Technician Laborers
FULL SPECTRUM: Underpays Therapy Assistants, Crozier Suit Says
GERON CORPORATION: Junge Suit Transferred to N.D. California
GIESEN MANAGEMENT: Reagh Sues Over Unpaid Wages, Unjust Enrichment
GLAXOSMITHKLINE CONSUMER: Calchi Files ADA Suit in S.D. New York
GLEAM HOLDINGS: Abreu Files ADA Suit in S.D. New York
HARTFORD HEALTHCARE: Brown Sues Over Hospital Services' Monopoly
HILMAR CHEESE: Paguada Files ADA Suit in S.D. New York
HIRERIGHT LLC: Snell Files TCPA Suit in N.D. Georgia
HOME ARTS: Faces Diaz Wage-and-Hour Suit in S.D. Florida
HONDA DEVELOPMENT: Albert Sues Over Unpaid Overtime for Workers
ILUKA RESOURCES: Won Shareholder Class Action in Australia
IMERYS FILTRATION: Lewis Suit Removed to C.D. California
INMEDIATA HEALTH: Settles Data Breach Class Action for $1.1-MM
INNOVATIVE HEIGHTS: Amended Proposed Sched, Discovery Order Filed
J. F. MEAT: Faces Fernandez Wage-and-Hour Suit in S.D. New York
JOHNSON HEALTH: Abreu Files ADA Suit in S.D. New York
JUUL LABS: Collinsville Sues Over E-Cigarette Campaign to Youth
JUUL LABS: Edwardsville Sues Over Deceptive E-Cigarette Youth Ads
KC PROFESSIONAL: Perez Suit Alleges Unpaid OT for Housekeepers
KEITH D. WEINER: Waters Files FDCPA Suit in N.D. Ohio
KITSAP RESIDENCES: Fails to Properly Pay Workers, Ong Suit Alleges
KROGER CO: Judge Dismissed Suit Over Mislabeled Jelly Products
L2 AUTOMOTIVE: Sends Unsolicited Telemarketing Calls, Aydin Claims
LEAF GROUP: Weekes Files ADA Suit in S.D. New York
LENDUS LLC: Remoundos Sues Over Failure to Properly Secure PII
LEVY GORVY: Miller Files ADA Suit in S.D. New York
LONGHORN PIZZA: Fails to Reimburse Delivery Drivers, Serrano Claims
LYONS MAGNUS: Paguada Files ADA Suit in S.D. New York
MALIN + GOETZ INC: Miller Files ADA Suit in S.D. New York
MANDARICH LAW: Moore FCRA Suit Transferred to S.D. Florida
MANFREDI OF GREENWICH: Hobbs Files ADA Suit in S.D. New York
MANSUETO VENTURES: Weekes Files ADA Suit in S.D. New York
MARUGAME UDON USA: Redick Files ADA Suit in C.D. California
MEDICAL REVIEW: Purvis Files Suit in S.D. New York
MELIORRA LLC: Abreu Files ADA Suit in S.D. New York
META PLATFORMS: Contributed to Copyright Infringement, Logan Claims
MG FREESITES: Bid to Dismiss Doe's First Amended Complaint Denied
MH SUB I: Lebakken Files Suit in N.D. Georgia
MINI MANI MOO: Abreu Files ADA Suit in S.D. New York
NISSAN NORTH: Faces Bereda Suit Over Defective Braking System
OFFSHORE PROCESS: Underpays Quality Control Specialists, Labbe Says
OLIN CORPORATION: Underpays Process Operators, Cohea Suit Alleges
ONEOK FIELD: Dinsmore Sues Over Unpaid Interest on Late Payments
OPSEC SECURITY: Hanigan Sues Over Brand Analysts' Unpaid Overtime
OREGON: Sykes Action Stayed Pending Resolution in Maney Case
PERKIOMEN VALLEY SCHOOL: Appeals Prelim. Injunction in ADA Case
POINT PICKUP: Underpays Delivery Providers, Flores Suit Alleges
PULSE BIOSCIENCES: Ngosiok Sues Over 34% Decline of Stock Price
QSR MANAGEMENT: Faces Bailon Wage-and-Hour Suit in E.D.N.Y.
SBK DELIVERY: Joint Stipulation of Conditional Class Cert. OK'd
SCOTT ASNER: Appeals 4th Circuit Ruling in Hengle to Supreme Court
SOUTHWESTERN & PACIFIC: Settlement in Arredondo Suit Initially OK'd
STABLEVIEW ASSET: Securities Suit Dropped After Shares Rebound
STATE FARM: Revised Scheduling Order Entered in Velazquez Suit
SUNPOWER CORP: Jaszczyszyn Sues Over 16.9% Drop of Stock Price
SUTTER HEALTH: Antitrust Suit With 3 Million Plaintiffs Seeks $1.2B
SWING JUICE: CMP & Scheduling Order Entered in Tavarez-Vargas
TAL EDUCATION: Wolf Haldenstein Reminds of April 5 Deadline
TRC COMPANIES: Bandy Sues Over Unpaid OT for Landman Supervisors
UNITED STATES: Doster Sues Over Denied COVID-19 Policy Exemption
UNITED STATES: Revised Scheduling Order, Case Mng't Plan Entered
VERTEX GLOBAL: Bid to Dismiss Franklin Class Action Tossed
VERTEX GLOBAL: Has Until March 9 to Answer Amended Franklin Suit
WINESTOR LLC: CMP, Scheduling Order Entered in Weekes Class Suit
*********
ACTION NISSAN: Faces Rodriguez Class Suit Over Unwanted Robocalls
-----------------------------------------------------------------
ELIZABETH RODRIGUEZ, individually and on behalf of all others
similarly situated, Plaintiff v. ACTION NISSAN INC., Defendant,
Case No. 1:22-cv-01344 (S.D.N.Y., February 16, 2022) is a class
action against the Defendant for violation of the Telephone
Consumer Protection Act.
According to the complaint, the Defendant sent prerecorded calls to
the Plaintiff's cellular telephone number in an attempt to promote
its automotive dealership, vehicle inventory, and services without
prior express written consent. The Defendant's unsolicited
prerecorded messages caused the Plaintiff additional harm,
including invasion of privacy, aggravation, annoyance, intrusion on
seclusion, trespass, and conversion, says the suit.
Action Nissan Inc. is an operator of an automobile dealership
business in New York. [BN]
The Plaintiff is represented by:
Rachel N. Dapeer, Esq
DAPEER LAW, P.A.
20900 N.E. 30th Ave., Ste. 417
Aventura, FL 333180
Telephone: (305) 610-5223
E-mail: rachel@dapeer.com
ACUTUS MEDICAL: Brown Sues Over 90% Drop of Common Stock Price
--------------------------------------------------------------
JEFFRY BROWN, individually and on behalf of all others similarly
situated, Plaintiff v. ACUTUS MEDICAL, INC., VINCE BURGESS and
DAVID H. ROMAN, Defendants, Case No. 3:22-cv-00206-JO-KSC (S.D.
Cal., February 15, 2022) is a class action against the Defendants
for violation of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934.
According to the complaint, the Defendants made materially false
and misleading statements and omissions regarding Acutus' business
to trade Acutus common stock at artificially inflated prices
between May 13, 2021 and November 11, 2021. Specifically, the
Defendants misrepresented: (i) their ability to grow and scale
Acutus' business; (ii) Acutus' strategy regarding AcQMap system
placements; and (iii) the ability of Acutus to improve commercial
execution in the United States.
When the truth emerged, the price of Acutus common stock fell to
less than $2 per share on January 28, 2022, nearly 90% below the
Class period high, says the suit.
Acutus Medical, Inc. is an arrhythmia management company based in
Carlsbad, California. [BN]
The Plaintiff is represented by:
Danielle S. Myers, Esq.
Brian E. Cochran, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101-8498
Telephone: (619) 231-1058
Facsimile: (619) 231-7423
E-mail: dmyers@rgrdlaw.com
bcochran@rgrdlaw.com
- and –
Frank J. Johnson, Esq.
JOHNSON FISTEL, LLP
501 West Broadway, Suite 800
San Diego, CA 92101
Telephone: (619) 230-0063
Facsimile: (619) 255-1856
E-mail: frankj@johnsonfistel.com
ADEAM INTERNATIONAL: Miller Files ADA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Adeam International
Corporation. The case is styled as Kimberly Miller, on behalf of
herself and all other persons similarly situated v. Adeam
International Corporation, Case No. 1:22-cv-01369 (S.D.N.Y., Feb.
17, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Adeam -- https://www.adeam.com/ -- is a high end luxury fashion
clothing brand, designed by Hanako Maeda in New York City and
Tokyo.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
AMAZON.COM SERVICES: Hamilton Suit Removed to D. Colorado
---------------------------------------------------------
The case captioned as Daniel Hamilton, individually and on behalf
of all others similarly situated v. Amazon.com Services LLC, Case
No. 2022CV30070 was removed from the District Court of Arapahoe
County, Colorado, to the U.S. District Court for District of
Colorado on Feb. 17, 2022.
The District Court Clerk assigned Case No. 1:22-cv-00434-STV to the
proceeding.
The nature of suit is stated as Other Labor Litigation.
Amazon Services LLC -- https://www.amazon.com/ -- offers many of
the Web service platforms that are Amazon offers.[BN]
The Plaintiff is represented by:
David H. Miller, Esq.
Victoria Elizabeth Guzman, Esq.
SAWAYA LAW FIRM
1600 North Ogden Street
Denver, CO 80218
Phone: (303) 839-1650
Fax: (303) 720-1650
Email: dhmiller@sawayalaw.com
vguzman@sawayalaw.com
The Defendant is represented by:
Jennifer S. Harpole, Esq.
LITTLER MENDELSON PC-Denver
1900 16th Street, Suite 800
Denver, CO 80202
Phone: (303) 629-6200
Fax: (303) 629-0200
Email: jharpole@littler.com
AMERICAN FAMILY: Fails to Secure Customers' Info, Kowarsky Alleges
------------------------------------------------------------------
NATHAN KOWARSKY, individually and on behalf of all others similarly
situated, Plaintiff v. AMERICAN FAMILY LIFE INSURANCE COMPANY,
Defendant, Case No. 3:22-cv-00939-SK (N.D. Cal., February 15, 2022)
is a class action against the Defendant for negligence, invasion of
privacy, breach of confidence, breach of implied contract, breach
of the implied covenant of good faith and fair dealing, unfair
business practices, and unjust enrichment.
The case arises from the Defendant's failure to properly secure and
safeguard the personally identifiable information (PII) of the
Plaintiff and Class members stored within its information network.
As a result of the Defendant's alleged failure to take and
implement adequate and reasonable security measures, the PII of the
Plaintiff and Class members were disclosed to an unknown third
party.
American Family Life Insurance Company is an insurance firm based
in Madison, Wisconsin. [BN]
The Plaintiff is represented by:
Scott Edward Cole, Esq.
Laura Grace Van Note, Esq.
Cody Alexander Bolce, Esq.
COLE & VAN NOTE
555 12th Street, Suite 1725
Oakland, CA 94607
Telephone: (510) 891-9800
Facsimile: (510) 891-7030
E-mail: sec@colevannote.com
lvn@colevannote.com
cab@colevannote.com
APPLE INC: iPad Mini 6 Made "Unusable," Lawsuit Alleges
-------------------------------------------------------
Chance Miller at 9to5mac.com reports that shortly after the
completely revamped iPad mini 6 was released, some users noticed
that the LCD screen exhibited a so-called "jelly scrolling" display
refresh quirk. While Apple said this is expected behavior, the
company is now facing a class action lawsuit from iPad mini users.
For those unfamiliar, jelly scrolling is when half of a device's
display refreshes noticeably slower than the other half. This
results in a sort-of wobble effect, hence the "jelly scrolling"
name. As the issue gained some traction from concerned iPad mini
users last fall, Apple said that this is normal behavior for LCD
screens, including the one used in the iPad mini.
As first reported by MacRumors and expanded on by Patently Apple,
this lawsuit shows that some iPad mini 6 users aren't satisfied
with that explanation. The lawsuit has been filed by Christopher
Bryan of Colorado, who alleges that this "defect" of the iPad mini
means that the display "bends, warps, blurs and obscures text and
images" to the point that it is "unusable."
Worse yet, users have reported motion sickness, nausea, vomiting,
and migraines when using the Device due to the Defect. Although
Apple itself publicly acknowledged the problem to niche tech
publications just four days after the iPad Mini's release, Apple
has continued to sell the iPad Mini and has refused to fix the
problem or to amend its marketing materials to reflect the
existence of the Defect. Instead, Apple has insisted, against the
weight of evidence, that the Defect is normal.
In the lawsuit, the plaintiff notes that other devices that use LCD
screens don't suffer nearly as badly from the jelly scrolling
defect, including Apple's own iPad Air. The lawsuit also accuses
Apple of "concealing" this defect as it continues to sell the iPad
mini 6 to new buyers:
Apple has continued to market the Device without disclosing the
nature of the Defect, including in its commercials, advertisements,
and packaging. Instead, Apple has concealed the Defect, opting
instead to market the Devices as capable of enabling the consumer
to read, play games, and write despite the fact that each of these
functions and features are hampered by the Defect
The lawsuit accuses Apple of violating California competition law,
false advertising law, fraud, and more.
Through the lawsuit, the plaintiff is seeking financial relief for
anyone who purchased the iPad mini 6. You can find the full
document right here. The case has a long way to go before it can
proceed, and class action lawsuits generally have a tendency of
fizzling out before that happens. We'll have to wait and see
whether or not this iPad mini 6 lawsuit faces the same fate. [GN]
ASTRA SPACE: Robbins Geller Reminds of April 11 Deadline
--------------------------------------------------------
Robbins Geller Rudman & Dowd LLP announces that purchasers of Astra
Space Inc. f/k/a Holicity Inc. (NASDAQ: ASTR; HOL) publicly traded
securities between February 2, 2021 and December 29, 2021,
inclusive (the "Class Period") have until April 11, 2022 to seek
appointment as lead plaintiff in Artery v. Astra Space Inc. f/k/a
Holicity Inc., No. 22-cv-00737 (E.D.N.Y.). The Astra Space class
action lawsuit charges Astra Space and certain of its top
executives with violations of the Securities Exchange Act of 1934.
If you suffered substantial losses and wish to serve as lead
plaintiff of the Astra Space class action lawsuit, please provide
your information by clicking here. You can also contact attorney
J.C. Sanchez of Robbins Geller Rudman & Dowd LLP by calling
800/449-4900 or via e-mail at jsanchez@rgrdlaw.com. Lead plaintiff
motions for the Astra Space class action lawsuit must be filed with
the court no later than April 11, 2022.
CASE ALLEGATIONS: Astra Space purportedly operates as an
operational space launch company. On February 2, 2021, Astra Space
announced its plan to merge with Holicity Inc., a special purpose
acquisition company ("SPAC") or blank-check company. Astra Space's
press release announcing the merger represented that "'[t]his
transaction takes us a step closer to our mission of improving life
on Earth from space by fully funding our plan to provide daily
access to low Earth orbit from anywhere on the planet,' said Chris
Kemp, Founder, Chairman and CEO of Astra." On June 30, 2021, Astra
Space and Holicity merged. Astra Space shares are listed on the
NASDAQ under the ticker symbol ASTR. Prior to the merger, Holicity
ordinary shares traded on the NASDAQ under the ticker symbol HOL.
The Astra Space class action lawsuit alleges that, throughout the
Class Period, defendants made false and misleading statements and
failed to disclose that: (i) Astra Space cannot launch "anywhere";
(ii) Astra Space significantly overstated its addressable market;
(iii) Astra Space overstated the effectiveness of its designs and
reliability; (iv) Astra Space significantly overstated its plans
for diversification and its broadband constellation plan; and (v)
as a result, defendants' public statements were materially false
and/or misleading at all relevant times.
On December 29, 2021, market researcher Kerrisdale Capital released
a report entitled, "Astra Space, Inc. (ASTR): Headed for
Dis-Astra," which alleged myriad issues with Astra Space. Among
other issues, the report: (1) questioned Astra Space's ability to
launch from anywhere: "In the US, Astra [Space] can only launch
from an FAA-licensed commercial spaceport approved for vertical
launch. There are only 5 such sites (plus SpaceX's private Boca
Chica spaceport) located in the U.S."; (2) questioned Astra Space's
addressable market: "Astra [Space]'s forecast calls for 300
launches per year by 2025, a whopping 10x more than SpaceX achieved
in 2021. Management markets this exceptionally aspirational goal
(which we view as pure fantasy) in a bid to spread its expensive
Bay Area manufacturing costs over enough rockets in order to turn a
profit."; (3) questioned Astra Space's designs and reliability: "At
the current stage of Astra [Space]'s development, our source
believes the risk of failure is as high as 1 in 2 launches."; and
(4) questioned Astra Space's plans for diversification and its
broadband constellation plan: "While others in the industry like
Rocket Lab are developing well-suited, best-in-class technology,
enabling a variety of TAM-expanding missions, Astra [Space] is
settling for suboptimal acquired technology with only niche
applications." On this news, Astra Space's share price fell
approximately 14%, damaging investors.
Robbins Geller has launched a dedicated SPAC Task Force to protect
investors in blank check companies and seek redress for corporate
malfeasance. Comprised of experienced litigators, investigators,
and forensic accountants, the SPAC Task Force is dedicated to
rooting out and prosecuting fraud on behalf of injured SPAC
investors. The rise in blank check financing poses unique risks to
investors. Robbins Geller's SPAC Task Force represents the vanguard
of ensuring integrity, honesty, and justice in this rapidly
developing investment arena.
THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation
Reform Act of 1995 permits any investor who purchased Astra Space
securities during the Class Period to seek appointment as lead
plaintiff in the Astra Space class action lawsuit. A lead plaintiff
is generally the movant with the greatest financial interest in the
relief sought by the putative class who is also typical and
adequate of the putative class. A lead plaintiff acts on behalf of
all other class members in directing the class action lawsuit. The
lead plaintiff can select a law firm of its choice to litigate the
class action lawsuit. An investor's ability to share in any
potential future recovery of the class action lawsuit is not
dependent upon serving as lead plaintiff. [GN]
BRITISH COLUMBIA: Supreme Ct. Declines to Strike Opioid Suit Claims
-------------------------------------------------------------------
In August 2018, the Province of British Columbia (Province)
commenced a class action on behalf of itself and other provincial
and federal governments against approximately 50 pharmaceutical
manufacturers, wholesalers, and distributors of opioid-related
products (defendants). Through a variety of statutory and common
law causes of action, the Province seeks to recover healthcare
costs and damages since 1996 that resulted from the opioid epidemic
- which the Province alleges was created by the defendants'
wrongful conduct in their manufacture, marketing, distribution, or
sale of opioid-related products in Canada.
On January 4, 2022, the British Columbia Supreme Court (Court) in
British Columbia v Apotex Inc, 2022 BCSC 1 dismissed the
defendants' various motions to strike the Province's claims (with
some exceptions).
The Court also granted the Province's motion to further amend its
pleadings (which generally sought to clarify or provide further
particulars to its existing claims, add the new claim of public
nuisance, and add several new defendants).
The certification hearing for the class action has not taken
place.
The Opioid Damages and Health Care Costs Recovery Act
In October 2018, the Government of British Columbia, in response to
the opioid crisis, enacted the Opioid Damages and Health Care Costs
Recovery Act (ORA). Section 2(1) of the ORA provides a direct and
distinct cause of action allowing the B.C. government to recover
healthcare costs caused or contributed to by an "opioid-related
wrong", which includes:
"a breach, by a manufacturer or wholesaler, of a common law,
equitable or statutory duty or obligation owed to persons in
British Columbia who have used or been exposed to or might use or
be exposed to an opioid product."
Accordingly, most of the Province's claims in this action are
"ORA-based claims" - whereby the Province alleges a breach of duty
required by statutes or under the common law, and thereby giving
rise to a claim under the ORA.
The Province's Claims and Allegations
Among other arguments, the defendants generally alleged that the
Province's claims must be struck for insufficient particulars and
material facts. The Court disagreed, holding that it is not plain
and obvious the claims must fail, particularly for ORA-based claims
where the burden is less onerous than standalone causes of actions
not rooted in the ORA.
Breach of the Competition Act. The Province alleged that the
misleading advertising of some defendants' opioid products is a
breach of s. 52 of the Competition Act, which gives rise to claims
for recovery under s. 36 of the Competition Act and the ORA. In
refusing to strike these claims, the Court rejected the defendants'
arguments that (a) a province is not a "person", and (b)
establishing detrimental reliance is required under s. 36 of the
Competition Act.
Breach of the Food and Drug Act (FDA). The Province also alleged
that some defendants' misleading representations of their opioid
products breached s. 9 of the FDA, which the defendants argued is
not a proper cause of action and lacks material facts. The Court
agreed with the plaintiff that breach of the FDA is not a
standalone claim, but rather a breach of statutory duty that
grounds a claim under the ORA. Accordingly, the Court found the
Province has pleaded sufficient material facts to support such a
claim (i.e., ORA-based claim for breach of the FDA).
Breaches of common law duties. In addition to statutory claims, the
Province also made a number of ORA claims based on breaches of
common law duties (including negligent and fraudulent
misrepresentation, deceit, negligent design, failure to warn, and
general negligence). Contrary to the defendants' positions, the
Court found the Province's pleadings to be sufficient and
adequate.
Public nuisance. As a standalone cause of action, the Province
alleged that the defendants' conduct - which created the opioid
epidemic, either individually or in concert with each other -
constitute a public nuisance. The defendants argued that this claim
must fail on the grounds that the Province has not properly pleaded
(a) a public right, and (b) that the defendants unreasonably
interfered with that right. The Court disagreed, holding that
although a claim for public nuisance in the context of
health-related allegations is novel in Canada, public health could
be contemplated as an actionable public right and the Province's
pleadings are sufficient at this stage of the action.
Unjust enrichment. The Province further alleged, as another
standalone cause of action, that the defendants were unjustly
enriched from the sales of opioid products through illegal and
deceptive promotions. The Court held that any contractual
justification for the defendants' enrichment should not be
determined on a motion to strike and therefore, refused to strike
the claim.
Claims under other statutes. In addition to the ORA, the Province
also sought recovery, in the alternative, under the Healthcare
Costs Recovery Act (HCCRA) as well as parallel legislations in
other provinces. The Court agreed with the defendants to strike the
HCCRA-based claims as duplicative and unnecessary, but allowed the
claims under other provincial statutes as they are merely necessary
legislative bases for other provinces to join the action as a class
member.
Lastly, the Court allowed the Province's amendments to add as new
defendants several manufacturers of opioid-related products, all of
which except Noramco did not oppose. The Court agreed with the
Province that Noramco (a supplier of active ingredients to
companies that manufacture the finished opioid products) falls
within the definition of "manufacturer" under the ORA. [GN]
BUCKEYE PARTNERS: Delaware Chancery Court Dismisses Ryan's Claims
-----------------------------------------------------------------
In the case, WALTER E. RYAN, JR., individually and on behalf of
others similarly situated, Plaintiff v. BUCKEYE PARTNERS, L.P.,
BUCKEYE GP LLC, CLARK C. SMITH, PIETER BAKKER, BARBARA M. BAUMANN,
BARBARA J. DUGANIER, JOSEPH A. LASALA, JR., MARK C. McKINLEY, LARRY
C. PAYNE, OLIVER G. RICHARD, III, FRANK S. SOWINSKI, MARTIN A.
WHITE, IFM INVESTORS PTY LTD, IFM GLOBAL INFRASTRUCTURE FUND,
HERCULES INTERMEDIATE HOLDINGS LLC, Defendants, C.A. No.
2021-0432-JRS (Del. Ch.), the Court of Chancery of Delaware granted
the Defendants' motion to dismiss all claims.
I. Background
In the putative class action, Plaintiff Ryan, a former unitholder
of Buckeye, brings several claims of wrongdoing against both
sell-side and buy-side defendants with respect to the acquisition
of Buckeye by a subsidiary of IFM Global Infrastructure Fund ("IFM
GIF"), in which Buckeye's public unitholders received $41.50 per
unit in cash consideration (the "Transaction"). The Transaction was
approved by approximately 96% of Buckeye's voting unitholders.
According to the Plaintiff, the Defendants structured the
Transaction to capture earnings and favorable tax treatment for the
acquirer while avoiding paying distributions to unitholders. He
brings breach of contract, breach of the implied covenant and good
faith and fair dealing (the "implied covenant") and breach of
fiduciary duty claims against the sell-side defendants, as well as
aiding and abetting and tortious interference with contract claims
against the buy-side defendants.
The Plaintiff brings the putative class action suit on behalf of
himself and a class of Buckeye's unitholders.
Before it was acquired, Buckeye was a publicly traded limited
partnership organized under the laws of Delaware and governed
according to the LPA Buckeye is managed by Buckeye GP LLC, a
Delaware limited liability company, which is governed, in turn, by
a board of directors. The directors on that board include Pieter
Bakker, Barbara M. Baumann, Barbara J. Duganier, Joseph A. LaSala,
Jr., Mark C. McKinley, Larry C. Payne, Oliver G. Richard III, Clark
C. Smith, Frank S. Sowinski, and Martin A. White. Buckeye did not
have a board of directors; it was, instead, indirectly governed by
Buckeye GP's Board.
Buckeye was acquired by the investment fund manager, IFM Investors
Pty Ltd ("IFM"), through IFM GIF, Hercules Intermediate Holdings
LLC and non-party Hercules Merger Sub LLC. IFM, IFM GIF and
Hercules are collectively referred to as the "IFM Defendants."
Between 2018 and 2019, IFM made several unsolicited offers to
acquire Buckeye. Following arms-length negotiations, on May 10,
2019, Buckeye announced IFM would acquire its outstanding public
units for $41.50 per unit, a 27.5% premium over the closing price
of Buckeye units prior to the announcement of the Transaction, and
a 31.9% premium over the last trading day before Buckeye announced
the results of its comprehensive review of strategic alternatives.
The parties subsequently entered into an Agreement and Plan of
Merger. On June 7, 2019, Buckeye filed a Preliminary Proxy
Statement on Form PREM14A with the Securities and Exchange
Commission, followed by its Definitive Proxy Statement on Form 14A,
filed on June 25, 2019. A unitholder vote was held July 31, 2019,
and unitholders overwhelmingly approved the Transaction. The
Transaction closed as planned on Nov. 1, 2019. As disclosed in the
Proxy, Buckeye executives and Board members received accelerated
benefits and the benefits of pre-existing severance arrangements as
a result of the Transaction.
The Plaintiff alleges that Defendants deliberately selected the
November 1 closing date to avoid paying the unitholders a
distribution that was customarily declared in late October or early
November, which, in turn, "maximized the value transferred from the
unit owners to the Buyers. He also takes issue with the tax
consequences of the Transaction to unitholders, alleging the
Defendants wrongfully structured the Transaction so that millions
of assets that were not distributed to the cashed-out unitholders
were nonetheless taxed to the Buyers. The Defendants also allegedly
refused to provide the Plaintiff with tax information he
requested.
The first litigation relating to the Transaction was styled Ingalls
v. Buckeye Partners, L.P., and was filed by certain unitholders in
the U.S. District Court for the Southern District of Texas shortly
after the Transaction was announced. The Plaintiff intervened in
Ingalls on Sept. 6, 2019, and was granted Lead Plaintiff status on
Dec. 10, 2019. On Jan. 13, 2020, the Plaintiff moved to transfer
the case to the U.S. District Court for the District of Delaware,
and that motion was granted on July 17, 2020. The Plaintiff's
consolidated amended complaint alleged, among other things, that
the Defendants violated the Exchange Act by not disclosing certain
tax consequences of the Transaction to unitholders (federal law
claims) and breached the LPA and their fiduciary duties (state law
claims), just as the Plaintiff alleges.
After hearing argument on the Defendants' motions to dismiss, on
May 5, 2021, the presiding Magistrate Judge issued a thorough
Report and Recommendation, recommending that the Plaintiff's
federal claims be dismissed with prejudice but that the state law
claims be dismissed without prejudice, anticipating that the
Plaintiff would re-file his state claims in the Chancery Court. The
Report noted that the Plaintiff had offered voluntarily to dismiss
the federal claims but, nevertheless, "recommended dismissal of
those claims" because the "Plaintiff failed to identify an
actionable false or misleading statement." The presiding District
Court Judge issued an order, dated June 2, 2021, adopting the
Report in full. In the time between the Report and the adoption of
the Report, the Plaintiff filed his Complaint in the Chancery
Court.
The Complaint comprises four counts: (1) breach of contract against
the Buckeye Defendants, (2) breach of the implied covenant against
the Buckeye Defendants, (3) breach of fiduciary duty against the
Buckeye Defendants, and (4) aiding and abetting/tortious
interference against the IFM Defendants. In response, the Buckeye
Defendants and IFM Defendants both filed Motions to Dismiss the
Complaint under Court of Chancery Rule 12(b)(6).
II. Discussion
A. The Breach of Contract Claim
The Plaintiff alleges the Buckeye Defendants breached the LPA by
structuring the Transaction to benefit the IFM Defendants and
"causing income items allocated to the unitholders to be
transferred to the IFM Defendants."
The Court of Chancery opines that the claim fails for two principal
reasons. First, the Plaintiff's Complaint fails to cite a single
provision of the LPA that the Buckeye Defendants allegedly
breached. Not one. Thus, the Complaint fails to put the Defendants
on fair notice of the Plaintiff's breach of contract claims.
Second, when one actually reads the LPA, the Plaintiff's pleading
strategy to avoid specific reference to the contract is not
surprising.
To summarize, the breach of contract claim must be dismissed
because the Plaintiff does not even attempt to plead the claim and,
even if he had, the LPA makes clear the claim cannot be squared
with the unambiguous terms of the operative contract. To the extent
the Plaintiff would couch his allegation that the Buckeye
Defendants have acted in bad faith as a breach of contract claim,
the Court of Chancery addresses that claim separately.
B. Breach of the Implied Covenant
The Plaintiff's allegations in support of his implied covenant
claim, like his breach of contract allegations, are sparse, the
Court of Chancery opines. In essence, in a single paragraph, the
Plaintiff alleges the Buckeye Defendants breached the implied
covenant by engaging in the conduct that allegedly breached the
LPA. The claim, as pled, fails, the Court holds.
First, the LPA, by its terms, makes clear that the Plaintiff was
not entitled to any distributions at all. Second, in any event, the
Buckeye Defendants were contractually obligated to close "on the
fifth business day following the satisfaction or waiver" of all
closing conditions, including governmental regulatory approvals.
Third, the LPA expressly addresses unitholders' information rights;
there is, therefore, no room for the implied covenant to work.
In sum, the Plaintiff fails to plead a gap in the LPA that could be
filled by the implied covenant. The claim for breach of the implied
covenant, therefore, fails as a matter of law.
C. Breach of Fiduciary Duty
The Plaintiff asserts the Buckeye Defendants breached their
fiduciary duties by foisting the Transaction on Buckeye unitholders
on unfair terms. Of course, the claim assumes the Buckeye
Defendants owed fiduciary duties. The Court of Chancery finds that
they did not. And, to the extent the fiduciary duty claim rests on
a breach of the standard of conduct prescribed in the LPA, the pled
facts fall well short of supporting a reasonable inference that the
contractual standard was breached.
First, Section 7.9(c) displaced traditional fiduciary duties, and
precludes the Plaintiff from prosecuting a claim based on a breach
of common law fiduciary duties. Second, under the LPA, the
Transaction is deemed conclusively fair and reasonable,
extinguishing any claim of conflict. Third, the Plaintiff pleads no
facts that would allow a reasonable inference that the Buckeye
Defendants believed the Transaction was not "in the best interests
of the Partnership" but nevertheless caused Buckeye to commit to
it.
The Court of Chancery concludes that the breach of fiduciary duty
claim must be dismissed because the LPA disclaims fiduciary duties,
the fully informed unitholder vote cleanses any fiduciary duty
breach and the Complaint fails to well-plead that the Buckeye
Defendants breached their contractual obligation to act in good
faith.
D. Aiding and Abetting and Tortious Interference with Contract
In its final claim, the Plaintiff alleges the IFM Defendants aided
and abetted in the Buckeye Defendants' breaches of contract, the
implied covenant and fiduciary duties, as well as tortiously
interfered with the LPA. As for the aiding and abetting count, the
IFM Defendants correctly observe that, generally speaking,
"Delaware does not recognize a claim for aiding and abetting a
breach of contract." The same is true with respect to claims for
aiding and abetting a breach of the implied covenant. Because the
Plaintiff fails to plead a cognizable claim under Delaware law, the
aiding and abetting breach of contract and the implied covenant
claims must be dismissed.
The Court of Chancery opines that even if these claims were viable
under Delaware law, the claims would still fail because the Buckeye
Defendants did not actually breach the LPA or the implied covenant.
The IFM Defendants could not have aided and abetted the Buckeye
Defendants in breaches that never occurred. The same is true for
the claim that the IFM Defendants aided and abetted in the Buckeye
Defendants' breach of fiduciary duty. But even assuming fiduciary
duties existed and applied, the Plaintiff's claim still fails
because the Plaintiff's allegations and the documents properly
incorporated by reference do not allow an inference that the IFM
Defendants knowingly participated in a breach. The tortious
interference claim also fails because Plaintiff has not pled that
the IFM Defendants acted "without justification."
E. The Complaint is Dismissed with Prejudice
In his answering brief, the Plaintiff asks that he be given leave
to amend his Complaint. But he chose to brief the motion to dismiss
instead of filing an amended complaint, as permitted by Chancery
Rule 15(a). The consequence of this choice under the rules is that
if "the Court concludes that the Complaint should be dismissed such
dismissal will be with prejudice." Not only has the Plaintiff
failed to show the "good cause" required under Chancery Rule
15(aaa) for the Court to overlook his strategic decision to brief a
motion to dismiss rather than amend his Complaint, he has also
failed to demonstrate why leave to amend would not be futile.
Dismissal is with prejudice.
III. Conclusion
Based on the foregoing, the Court of Chancery granted the Buckeye
Defendants' and the IFM Defendants' Motions to Dismiss.
A full-text copy of the Court's Feb. 9, 2022 Memorandum Opinion is
available at https://tinyurl.com/3nv5dd6m from Leagle.com.
Blake A. Bennett Esquire -- bbennett@coochtaylor.com -- and Dean R.
Roland Esquire, of Cooch and Taylor, P.A., Wilmington, Delaware;
Clinton A. Krislov, Esquire -- clint@krislovlaw.com -- Kenneth T.
Goldstein, Esquire -- ken@krislovlaw.com -- Christopher M. Hack
Esquire -- chris@krislovlaw.com -- of Krislov & Associates, Ltd.,
Chicago, Illinois; Samuel B. Edwards Esquire --
sedwards@sseklaw.com -- and Ryan Cook Esquire -- rcook@sseklaw.com
-- of Shepherd, Smith, Edwards & Kantas, LLP, Houston, Texas,
Attorneys for Plaintiff Walter E. Ryan, Jr. William M. Lafferty,
Esquire, Ryan D. Stottmann, Esquire, Sabrina M. Hendershot Esquire,
of Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware and
Gary A. Bornstein Esquire, and Rory A. Leraris Esquire, of Cravath,
Swaine & Moore LLP, New York, New York, Attorneys for Defendants
Buckeye Partners, L.P., Buckeye GP LLC, Clark C. Smith, Pieter
Bakker, Barbara M. Baumann, Barbara J. Duganier, Joseph A. LaSala,
Jr., Mark C. McKinley, Larry C. Payn, Oliver G. Richard, III, Frank
S. Sowinski and Martin A. White.
Jeffrey L. Moyer, Esquire -- moyer@rlf.com -- Srinivas M. Raju
Esquire -- raju@rlf.com -- and Tyler E. Cragg Esquire --
cragg@rlf.com -- of Richards, Layton & Finger, P.A., Wilmington,
Delaware and Andrew W. Hammond Esquire, and Steven A. Levy Esquire,
of White & Case LLP, New York, New York, Attorneys for IFM
Investors Pty Ltd, IFM Global Infrastructure Fund, and Hercules
Intermediate Holdings LLC.
CANADA: Privacy Czar Seeks Details on Release of Suit Claim Data
----------------------------------------------------------------
Amanda Connolly at Global News reports that the federal privacy
commissioner is seeking answers following a report that highly
personal information was released about claims submitted through
the military sexual misconduct class action settlement.
In a statement to Global News, a spokesperson for Privacy
Commissioner Daniel Therrien said the watchdog's office had not
been notified of any such breaches and is now contacting the
company running the claims portal, as well as military officials,
for more information.
"To date, we had not been notified of this matter. We have now
reached out to the Department of National Defence and Epiq Class
Action Services Canada in order to obtain more information and
determine next steps," said spokesperson Vito Pilieci in an email.
"I do not have further information to provide at this time."
READ MORE: Military sexual misconduct class action members' details
accidentally released
The Canadian Press reported that the company administering the
federal government's $900-million class action settlement for
survivors and victims of military sexual misconduct inadvertently
released private information about dozens of claimants.
That report stated that Epiq Class Action Services Canada confirmed
the privacy breach to The Canadian Press, which came after a
veteran said she had received letters intended for more than 40
other people in an email.
Retired master corporal Amy Green told The Canadian Press 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."
Epiq Class Action Services Canada said that "human error" was
behind the breach.
"We promptly implemented new procedures to ensure this does not
happen again and have taken the appropriate disciplinary action,"
said Angela Hoidas, vice-president of marking and communications.
"Epiq fully understands the importance of protecting personal
information and sincerely regrets this error. We have notified
counsel for parties in the case as well as those affected
claimants, all of whom have received our deepest apologies."
Hoidas said that a "limited amount of data" about less than 100
claimants was inadvertently shared with another member of the class
action settlement. This information included first names, last
names, email addresses and claimant ID numbers, and those impacted
have been notified, she said.
"There is no way for a claimant to log in and access their private
file. If claimants want to submit a document by way of a secure
upload, they use their name and claimant ID (which is a number
randomly generated and assigned to the claimant by Epiq) via a
secure link on the dedicated class action website," Hoidas added.
"The uploaded document is then reviewed by authorized Epiq
employees to assess and determine next steps. There is no ability
to externally access any uploaded files or any claimant information
whatsoever."
Defence Minister Anita Anand said it is crucial for claimants to be
able to have confidence in the system.
"I am deeply disturbed by the privacy breach of claimants' personal
information by Epiq Class Action Services Canada, the
court-appointed administrator for the CAF-DND Sexual Misconduct
Class Action Settlement," Anand said in a statement to Global
News.
"It is fundamentally important that the personal information of
claimants in the CAF-DND Sexual Misconduct Class Action Settlement
be treated with the utmost care. We understand that this matter is
being investigated by the administrator. I expect the administrator
to take urgent steps to ensure the security of information and to
prevent this from happening again."
Global News first reported on allegations of inappropriate
behaviour by senior military leaders beginning in February 2021,
and by July 2021 the number of claims submitted to the class action
had skyrocketed.
The $900-million class action lawsuit was settled in 2019 and
opened to claims from survivors and victims of military sexual
misconduct on May 25, 2020. It had received 2,729 claims by late
December 2020, before jumping to 7,346 as of July 13, 2021 - an
increase of roughly 170 per cent.
In the remaining four months before the claims process formally
closed in November, the number of claims jumped to more than 13,500
in a near-doubling that came as the military was embroiled by what
experts have repeatedly called a "crisis" over allegations of
sexual misconduct against senior leaders.
In all, a total of 19,466 Canadians submitted claims through the
class action process. [GN]
CANADA: Reconsiders Applications in Qalipu Mi'kmaq First Nation
---------------------------------------------------------------
kmlaw.ca reports that It has come to Class Counsel's attention that
the Government of Canada and the Federation of Newfoundland Indians
("FNI") and the Qalipu Mi'kmaq First Nation are in discussions and
close to reaching an agreement regarding the reconsideration of
applications for active services members of the Canadian Armed
Forces, the Royal Canadian Mounted Police and former members of
these forces who were denied founding membership in the Qalipu
Mi'kmaq First Nation.
Certainly Class Counsel welcomes the reconsideration of such
veteran's applications because of the unfair application of the
Supplemental Agreement. However, the apparent premise underlying
such agreement to include such veteran's could similarly apply to
others who have left Newfoundland over the last 70 years.
We understand that the Government of Canada has paused apparent
negotiations with the FNI and the Qalipu Mi'kmaq First Nation in
relation to the reconsideration of FNI members and continues to not
to engage on that subject.
Class Counsel is disappointed that while citing active litigation
as the reason for pausing discussions with the FNI, Canada has not
made any effort to consult with Class Counsel on this matter, nor
has the FNI. On the contrary, the parties to the agreement have
ignored Class Counsel's requests to be consulted throughout their
apparent negotiations.
Class Counsel will continue to work on advancing the claims of
Class Members whose applications for membership were unfairly
affected by the changes in the 2013 Supplementary Agreement. [GN]
CARPENTER HAZLEWOOD: Wolf Appeals FCRA Suit Dismissal to 9th Cir.
-----------------------------------------------------------------
Plaintiff Janis Wolf filed an appeal from a court ruling entered in
the lawsuit entitled Janis Wolf v. Carpenter Hazlewood Delgado &
Bolen LLP, Case No. 2:20-cv-00957-DLR, in the U.S. District Court
for the District of Arizona, Phoenix.
The lawsuit is brought on behalf of consumers whose credit reports
the Defendant obtained, without a legitimate purpose or consent,
prior to obtaining a judgment against a consumer, in violation of
the Fair Credit Reporting Act.
On September 13, 2019, the Defendant obtained the Plaintiff's
credit report via a "hard inquiry," according to the complaint.
This resulted in a decrease in the Plaintiff's credit rating. On
October 28, 2019, the Defendant again obtained the Plaintiff's
credit report via a "hard inquiry." This second inquiry resulted in
a decrease in the Plaintiff's credit rating. A hard inquiry reduces
a consumer's credit score, remains on credit reports for two years,
and often contains confidential and personal information. A hard
inquiry also appears on credit reports to any inquiring party. Each
hard inquiry appears as a separate inquiry.
The Plaintiff contends that the Defendant's deliberate practice of
obtaining consumers' credit reports, a practice commonly referred
to as a "hard inquiry," was undertaken for improper and unlawful
purposes (e.g., evaluating a consumer's collectability in potential
collection lawsuit), invaded consumers' privacy rights, and damaged
their credit scores and reputations. The Defendant acted unlawfully
when it twice obtained the Plaintiff's credit report in 2019. The
Defendant acted willfully in obtaining the Plaintiff's credit
report on both occasions, says the complaint.
As reported in the Class Action Reporter on Jan. 26, 2022, the Hon.
Judge Douglas L. Rayes entered an order:
1. granting the Defendant's motion for summary judgment;
2. denying the Plaintiff's motion for class certification;
3. denying the Plaintiff's motion for summary judgment;
4. denying all motions for leave to file supplementary
briefing; and
5. directing the clerk of the Court to enter judgment
accordingly and terminate this case.
The Plaintiff seeks a review of this order.
The appellate case is captioned as JANIS WOLF v. CARPENTER,
HAZLEWOOD, DELGADO & BOLEN, LLP, Case No. 22-15233, in the United
States Court of Appeals for the Ninth Circuit, filed on Feb. 16,
2022.
The briefing schedule in the Appellate Case states that:
-- Appellant Janis Wolf Mediation Questionnaire is due today,
Feb. 23, 2022;
-- Transcript shall be ordered by March 17, 2022;
-- Transcript is due on April 18, 2022;
-- Appellant Janis Wolf opening brief is due on May 26, 2022;
-- Appellee Carpenter, Hazlewood, Delgado & Bolen, LLP answering
brief is due on June 27, 2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant JANIS WOLF, Individually and on behalf of those
similarly situated, is represented by:
Jonathan A. Dessaules, Esq.
DESSAULES LAW GROUP
5353 North 16th Street, Suite 110
Phoenix, AZ 85016
Telephone: (602) 274-5400
E-mail: jdessaules@dessauleslaw.com
Defendant-Appellee CARPENTER, HAZLEWOOD, DELGADO & BOLEN, LLP is
represented by:
Brett B. Larsen, Esq.
HINSHAW & CULBERTSON, LLP
2375 E Camelback Road, Suite 750
Phoenix, AZ 85016
Telephone: (602) 631-4400
E-mail: blarsen@hinshawlaw.com
CELLULAR SALES: CSPA's Bid for Arbitration in Deardorff Suit OK'd
-----------------------------------------------------------------
In the case, JESSICA DEARDORFF, et al., Plaintiffs v. CELLULAR
SALES OF KNOXVILLE, INC., et al., Defendants, Civil Action No.
19-2642-KSM (E.D. Pa.), Judge Karen S. Marston of the U.S. District
Court for the Eastern District of Pennsylvania granted Cellular
Sales of Pennsylvania's motion to compel arbitration.
I. Background
On June 18, 2019, Plaintiffs Jessica Deardorff and David Chapman,
on behalf of themselves and all others similarly situated, filed a
complaint bringing a class action lawsuit against Defendants
Cellular Sales of Knoxville, Inc. ("CSOKI"), Cellular Sales of
Pennsylvania ("CSPA"), and Cellular Sales of North Carolina, LLC
("CSNC"). They allege that the Defendants failed to pay them
overtime compensation in violation of the Fair Labor Standards Act
("FLSA") and the respective Pennsylvania and North Carolina
statutes.
Plaintiffs Deardorff and Chapman worked as sales representatives
for Cellular Sales; Deardorff worked at a retail location in
Pennsylvania, and Chapman worked at a retail location in North
Carolina. They claim that they worked more than 40 hours per week
and that, as a result of company-wide pay policies and practices,
they were denied overtime in violation of the FLSA, the
Pennsylvania Minimum Wage Act ("PMWA"), the Pennsylvania Wage
Payment and Collection Law ("PWPCL"), and the North Carolina Wage
and Hour Act ("NCWHA"). Deardorff and Chapman bring these claims on
behalf of themselves and all others similarly situated.
In September 2019, CSPA moved to compel individual arbitration of
Deardorff's claims and to dismiss or transfer Chapman's and the
opt-in Plaintiffs' claims. Shortly thereafter, in November 2019,
CSOKI and CSNC moved to dismiss for lack of personal jurisdiction.
The parties agreed that the Court should decide CSOKI's motion to
dismiss for lack of personal jurisdiction before CSPA's motion to
compel arbitration.
On Aug. 25, 2020, the Court dismissed CSNC as a Defendant and found
that limited jurisdictional discovery was appropriate as to whether
the Court may exercise personal jurisdiction over CSOKI. After the
parties engaged in jurisdictional discovery, by a Memorandum dated
Feb. 1, 2022, the Court granted CSOKI's motion to dismiss for lack
of personal jurisdiction, finding that CSPA was not an alter ego of
its parent, CSOKI.
CSPA is the only remaining Defendant in the case, and the Court now
turns to its motion to compel arbitration.
II. Discussion
CSPA has moved to compel Deardorff to arbitrate her claims on an
individual basis, pursuant to the dispute resolution provision in
her DCA. It asserts that because there is a delegation clause
within the arbitration provisions, an arbitrator must decide
gateway issues of arbitrability, not the court. In its motion, CSPA
also asks the Court to dismiss or transfer Chapman and the Opt-In
Plaintiffs' claims under Federal Rule of Civil Procedure 12(b)(3).
In response, the Plaintiffs contend the arbitration provisions
cannot be enforced against Deardorff and Chapman because the
provisions and the collective and class action waivers they contain
violate the National Labor Relations Act ("NLRA"). In addition,
they argue that CSPA's motion to transfer or dismiss Chapman's
claims is premature and that the Opt-in Plaintiffs should be
entitled to limited discovery on the issue of arbitrability under
Rule 56.
A. Plaintiff Deardorff
Following the precedent outlined, Judge Marston considers whether
Deardorff and CSPA clearly and unmistakably delegated gateway
issues of arbitrability to an arbitrator, and then turn to whether
the Plaintiffs have sufficiently challenged the delegation
provision under Rent-A-Center.
As an initial matter, Judge Marston is persuaded that Deardorff and
CSPA clearly and unmistakably delegated questions of arbitrability
to an arbitrator, not to the Court. She finds that Deardorff's DCA
(the container contract) contains an arbitration provision (the
arbitration agreement), which in turn contains two clauses that
delegate arbitrability disputes to an arbitrator (the delegation
clauses). In addition, the fact that the parties incorporated the
JAMS rules into their arbitration agreement by reference
independently illustrates that the parties "clearly and
unmistakably" delegated threshold issues of arbitrability to an
arbitrator.
Next, Judge Marston must consider whether Deardorff has challenged
the delegation clause specifically. She finds that Deardorff has
not. She finds that the Plaintiffs' exclusive focus on any
violation of the NLRA "misses the mark" because the delegation
clause is several from the rest of the DCA. The Plaintiffs fail to
explain how (or cite any authority showing that) a "broad"
delegation of authority to the arbitrator renders the delegation
clause unenforceable or is a proper challenge to validity under 9
U.S.C. Section 2, on equal footing with well-established challenges
like unconscionability. They also fail to appreciate the concept of
nesting and the distinction between a container contract, an
arbitration provision, and a delegation clause.
Because Deardorff has failed to specifically challenge the
delegation clause, and the delegation clause in her DCA clearly and
unmistakably committed threshold issues of arbitrability to the
arbitrator, Judge Marston grants CSPA's motion to compel Deardorff
to arbitration.
B. Plaintiff Chapman
The arbitration provision, and delegation clause therein, in
Chapman's March 2017 DCA is the exact same as that in Deardorff's
DCA. For the reasons she discussed, Judge Marston finds that the
delegation clause is valid, that Chapman also agreed to delegate
threshold issues of arbitrability to an arbitrator, and that
Chapman did not specifically challenge the delegation clause.
However, she cannot compel Chapman to arbitrate in North Carolina
-- the forum that the parties chose in the DCA.
Hence, Judge Marston will stay the action, pending the arbitrator's
decision on threshold issues of arbitrability (i.e., whether the
arbitration provision is valid, whether the class action provision
is valid, etc.) in Deardorff's case. Because she has only
determined that the delegation clause is a valid agreement to
arbitrate, Judge Marston finds it is premature to dismiss or
transfer the Chapman's action at this time.
C. Opt-In Plaintiffs
Judge Marston declines to address CSPA's argument that the Opt-In
Plaintiffs' claims should be dismissed or transferred at this time.
First, she holds CSPA fails to cite a single case that is analogous
to the factual circumstances before the Court with respect to its
dismissal or transfer argument. Second, there are approximately 90
Opt-In Plaintiffs at this stage -- far more than the 23 that
existed at the time CSPA filed its initial motion. The Court does
not have copies of the DCA's for each Opt-In Plaintiff, nor does it
know the location at which each Opt-In Plaintiff worked. And, as
discussed with respect Chapman, because an arbitrator will be
deciding threshold issues of arbitrability in Deardorff's action --
and Deardorff's DCA likely shares the same arbitration provision as
many other Opt-In Plaintiffs -- it is premature to dismiss them at
this time.
D. Dismissal of Class and Collective Claims
Last, CSPA argues that the Court should dismiss the class and
collective action allegations because the DCAs contained a class
and collective action waiver, which CSPA claims is "separate and
apart from the arbitration clauses." CSPA's position is dubious,
given that the class and collection action waiver cited to is, in
fact, a subsection of the arbitration provision. In any event,
because she has found that the delegation clause in Deardorff's DCA
is valid and delegates questions of arbitrability to the
arbitrator, and therefore compels Deardorff and CSPA to
arbitration, Judge Marston cannot then also decide the validity of
the class action waiver.
III. Conclusion
For the foregoing reasons, Judge Marston granted CSPA's motion to
compel Deardorff to individual arbitration and stayed the case and
place it in suspense pending the resolution of Deardorff's
arbitration. An appropriate Order follows.
A full-text copy of the Court's Feb. 9, 2022 Memorandum is
available at https://tinyurl.com/4fvycwzj from Leagle.com.
CLOROX COMPANY: Cosmetic Products Contain PFAS, Gruen Suit Says
---------------------------------------------------------------
DANIELA GRUEN, individually and on behalf of all others similarly
situated, Plaintiff v. THE CLOROX COMPANY and THE BURT'S BEES
PRODUCTS COMPANY, Defendants, Case No. 3:22-cv-00935-TSH (N.D.
Cal., February 15, 2022) is a class action against the Defendants
for breach of express warranty, breach of implied warranty,
fraudulent concealment, unjust enrichment, and violations of the
California Consumers Legal Remedies Act, the California Unfair
Competition Law, and the New Jersey Consumer Fraud Act.
According to the complaint, the Defendants are engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
cosmetic products, including but not limited to Burt's Bees
Cosmetic Products. The Defendants represent that the products are
safe and effective for their intended use, and reasonable consumers
expect that cosmetic products marketed and sold to be applied to a
person's face and skin, and especially near the eyes and on lips,
will not contain dangerous, humanmade chemicals like per- and
polyfluoroalkyl substances (PFAS). Contrary to the Defendants'
representations, the products are not safe because they contain
PFAS, which have a negative impact on human health. The Plaintiff
and Class members allegedly suffered economic injuries as a result
of purchasing the products.
The Clorox Company is an American global manufacturer and marketer
of consumer and professional products, with its principal place of
business located at 1221 Broadway, Oakland, California.
The Burt's Bees Products Company is a manufacturer of skin care
products, with its primary place of business located at 1221
Broadway, Oakland, California. [BN]
The Plaintiff is represented by:
Danielle L. Perry, Esq.
Gary E. Mason, Esq.
MASON LIETZ & KLINGER LLP
5101 Wisconsin Avenue NW, Suite 305
Washington, D.C. 20016
Telephone: (202) 429-2290
Facsimile: (202) 429-2294
E-mail: dperry@masonllp.com
gmason@masonllp.com
- and –
Jonathan Shub, Esq.
Kevin Laukaitis, Esq.
SHUB LAW FIRM LLC
134 Kings Highway E., 2nd Floor
Haddonfield, NJ 08033
Telephone: (856) 772-7200
Facsimile: (856) 210-9088
E-mail: jshub@shublawyers.com
klaukaitis@shublawyers.com
CUMBERLAND VALLEY SCHOOL: ADA Suit Removed to M.D. Pennsylvania
---------------------------------------------------------------
The case captioned as John Doe 1, Jane Doe 1, agent of in their
individual capacity and as the parents of CHILD DOE 1; and on
behalf of themselves and those similarly situated v. Cumberland
Valley School District, The Cumberland Valley School District Board
of Directors, Heather Dunn, Gregory Rausch, Michelle Nestor, Brian
Drapp, Jevon Ford, Barbara Geistwhite, Michael Gossert, Bud
Shaffner, Jessica Silcox, Case No. 22-08006 (3d Cir.) was removed
from the Third Circuit Panel, Colorado, to the U.S. District Court
for Middle District of Pennsylvania on Feb. 17, 2022.
The District Court Clerk assigned Case No. 1:22-cv-00241-CCC to the
proceeding.
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Cumberland Valley School District -- http://www.cvschools.org/
-- is a large, rural and suburban public school district located in
Central Pennsylvania.[BN]
The Plaintiffs are represented by:
Alexander Wilson Saksen, Esq.
GOLDBERG KAMIN & GARVIN
1806 Frick Building, 437 Grant St.
Pittsburgh, PA 15219
Phone: (412) 281-1119
Email: asaksen@gordonrees.com
DAVID GOMEZ: Shipp Files Suit in N.D. Illinois
----------------------------------------------
A class action lawsuit has been filed against David Gomez, et al.
The case is styled as Gregory Shipp, on his own behalf and on
behalf of all others similarly situated v. David Gomez, as Warden
of the Northern Reception and Classification Center; Rob Jeffreys,
as Director of the Northern Reception and Classification Center;
Case No. 1:22-cv-00888 (N.D. Ill., Feb. 17, 2022).
The nature of suit is stated as Other Civil Rights for Prisoner
Civil Rights.
David Gomez is the Warden of the Northern Reception and
Classification Center.[BN]
The Plaintiff is represented by:
Terri Lynn Mascherin, Esq.
JENNER & BLOCK LLP
353 N. Clark Street
Chicago, IL 60654
Phone: (312) 222-9350
Email: tmascherin@jenner.com
DERMABELLA CLINIC: Class Cert. Sought in Sexual Assault Suit
------------------------------------------------------------
cbc.ca reports that a Vancouver woman is seeking to certify a class
action lawsuit against a cosmetic clinic and a worker charged with
voyeurism and sexual assault for allegedly filming customers during
intimate laser hair removal treatments.
A Vancouver woman is seeking to certify a class action lawsuit
against a cosmetic clinic and a worker charged with voyeurism and
sexual assault for allegedly filming customers during intimate
laser hair removal treatments.
The woman -- who CBC has decided not to name -- says she learned
about the charges against Ali Aghasardar from social media last
month when Vancouver police announced charges against the
50-year-old.
According to the B.C. Supreme Court claim, she went to Dermabella
clinic between December 2020 and June 2021, where she says
Aghasardar gave her Brazilian laser treatments, which involve the
removal of all or almost all pubic hair.
"When I got the treatment, I was essentially blindfolded," the
woman told the CBC.
"I asked him about it at the time, but I'd never had laser hair
removal before. And he said that it's just extra protection for the
laser for your eyes."
'Violated and Vulnerable'
Police have since revealed that Aghasardar allegedly photographed
one woman as she was receiving a treatment while naked. They say he
also allegedly sexually assaulted another client.
The alleged offences occurred between January and October 2019.
The woman seeking to certify the class action lawsuit is seeking
damages against both Dermabella and Aghasardar.
She says Vancouver police told her that without tattoos or
identifiable marks, they are unable to match victims to
photographic evidence, which means that she is left wondering if
pictures of her are out there.
"I felt so violated and vulnerable," the woman told the CBC.
"I want the public to know that this happened, so that people don't
unknowingly put themselves in the dangerous situation that I and
many other people put themselves in."
'A potentially dangerous situation'
The proposed class action is the second lawsuit filed against
Aghasardar and Dermabella in recent weeks.
In late January, another woman filed a notice of claim against both
the clinic and Aghasardar, who she claimed had sexually assaulted
her during laser hair removal treatment and scar removal in August
and October 2019.
The woman claimed she was "frozen in fear and unable to speak"
while Aghasardar touched her breasts and buttocks and digitally
penetrated her vagina as she lay naked on a treatment bed.
The woman said she wore protective safety glasses which "acted as a
blindfold."
She claimed she reported Aghasardar to the College of Traditional
Chinese Medicine and Acupuncturists in September 2020.
The college suspended Aghasardar the following month, posting a
notice that said he would not be allowed to perform acupuncture or
traditional Chinese medicine, pending the outcome of an
investigation.
But the woman who filed the class action claims he continued
working at Dermabella and gave her and others laser removal
treatment when they didn't know he had been suspended and should
not have been working.
She is seeking damages for breach of contract and argues that
Aghasardar and the clinic owed her a standard of care.
"They allowed people to come to him and get treated by him and put
themselves in a potentially dangerous situation completely
unknowingly," the woman said.
The woman says she filed the lawsuit because she wants Dermabella
to face consequences for allowing Aghasardar to see clients after
complaints were raised that ultimately led to the sexual assault
and voyeurism charges.
None of the charges against Aghasardar have been proven in court.
Dermabella did not return a call requesting comment and neither the
clinic nor Aghasardar has filed a response to the lawsuit. [GN]
DNC PARKS: Court Narrows Claims in Perez's 2nd Amended Labor Suit
-----------------------------------------------------------------
In the case, DAVID PEREZ, Plaintiff v. DNC PARKS & RESORTS AT
ASILOMAR, INC., et al. Defendants, Case No. 1:19-cv-00484-DAD-SAB
(E.D. Cal.), Judge Dale A. Drozd of the U.S. District Court for the
Eastern District of California:
(i) granted in part and denied in part the Defendants' motion
to dismiss; and
(ii) denied the Defendant's motion to strike.
I. Introduction
Before the Court are motions to dismiss and to strike filed on
behalf of Defendants DNC Parks & Resorts at Asilomar, Inc.
("Asilomar"), DNC Parks & Resorts at Sequoia, Inc. ("Sequoia"), DNC
Parks & Resorts at Yosemite, Inc. ("Yosemite"), Delaware North
Companies, Inc. ("Delaware North"), DNC Parks & Resorts at Kings
Canyon, Inc. ("Kings Canyon"), DNC Parks & Resorts at Tenaya Inc.
("Tenaya"), and Delaware North Companies Parks & Resorts, Inc.
("Parks & Resorts") on Aug. 26, 2020. Pursuant to General Order No.
617 addressing the public health emergency posed by the COVID-19
pandemic and the outbreak of the virus within this district, the
Defendants' motions were taken under submission on the papers.
II. Background
The matter arises from Plaintiff Perez's putative class action
lawsuit alleging various wage-and-hour violations by the
Defendants. The case was originally filed by the Plaintiff in
Tulare County Superior Court, but the Defendants removed the action
to the federal court on April 12, 2019. On Oct. 30, 2019, the Court
granted the Defendants' motion for judgment on the pleadings and
dismissed the Plaintiff's complaint, but granted him leave to amend
to: (i) file a first amended complaint addressing the deficiencies
identified by the Court; (ii) add Maria Socorro Vega as a
plaintiff; and (iii) add claims under the Fair Labor Standards Act
("FLSA"). In granting leave amend, the Court cautioned the
Plaintiff to heed Rule 11 of the Federal Rules of Civil Procedure.
On Nov. 14, 2019, Plaintiffs Perez and Vega filed their first
amended complaint ("FAC"), which the Defendants moved to dismiss
and strike. On July 29, 2020, the Court granted the Defendants'
motion to dismiss in part and denied their motion to strike as
moot. It dismissed several claims asserted by the Plaintiffs
without leave to amend, but also granted limited leave to amend the
FAC. The Court again cautioned the Plaintiffs regarding compliance
with Rule 11 and warned that "the Court will not turn a blind eye
to claims brought baselessly if it later comes to light that such
allegations were facially untenable given the evidence already
available to the parties."
On Aug. 14, 2020, the Plaintiffs filed the operative second amended
complaint ("SAC"). In their SAC, the Plaintiffs assert the
following claims: (1) failure to provide required meal breaks; (2)
failure to provide required rest breaks; (3) failure to pay
overtime wages; (4) failure to pay minimum wages; (5) failure to
furnish accurate itemized wage statements; (6) unfair and unlawful
business practices under California's Unfair Competition Law
("UCL"); (7) penalties under the Labor Code Private Attorneys
General Act of 2004 ("PAGA"), as a representative action; and (8)
failure to pay all wages and overtime compensation in violation of
the FLSA.
On Aug. 26, 2020, the Defendants moved to dismiss and strike the
SAC, arguing that the Plaintiffs' allegations fail to cure the
pleading deficiencies previously identified by the Court and that
the granting of further leave to amend is not warranted. On Sept.
22, 2020, the Plaintiffs filed their oppositions to the pending
motions, contending that they had satisfied the Court's prior
directives. Alternatively, the Plaintiffs request the granting of
yet further leave to amend if the SAC "inadvertently includes
inconsistencies that can be corrected." On Sept. 29, 2020, the
Defendants filed their replies to the Plaintiffs' oppositions.
III. Analysis
A. Motion to Dismiss
1. Whether Plaintiffs Have Alleged Joint Employer Liability
The Defendants first argue that the Plaintiffs have not
sufficiently pled joint employer allegations under state or federal
law to hold Defendants Parks & Resorts, Sequoia, Yosemite, and
Delaware North liable with respect to their wage and hours claims
and, accordingly, the Court should dismiss these Defendants from
the action. In their opposition, the Plaintiffs explain that they
"agreed to dismiss Defendants Parks & Resorts, Sequoia, and
Yosemite" during the meet and confer process with the Defendants
before the pending motion to dismiss was filed, and also appear to
indicate they are no longer pursuing their claims as to these three
defendants by failing to address them in their opposition to the
pending motion.
Judge Drozd will dismiss Defendant Parks & Resorts, Sequoia, and
Yosemite from the action, without further leave to amend. He finds
that such a failure in an opposition brief constitutes abandonment
of the claim" and courts regularly dismiss abandoned claims with
prejudice. In addition, the Plaintiffs did not allege any new facts
in their SAC that directly link them to each of these three
defendants, as directed by the Court in its order granting the
Plaintiffs' leave to file the SAC.
As for the remaining alleged joint employer, Defendant Delaware
North, the parties disagree about whether the SAC sufficiently
alleges facts both directly linking the Plaintiffs to Delaware
North and demonstrating, if proven, that it exercised control over
the Plaintiffs' employment.
Judge Drozd holds that the Plaintiff's allegations with respect to
Defendant Delaware North are adequate to allege a joint employer
relationship under California law. The SAC alleges that Delaware
North itself had authority to discipline and terminate the
Plaintiffs and the Plaintiffs were in fact disciplined for alleged
violations of Delaware North's policies, which are sufficient
allegations to show, if proven, that Delaware North was directly
linked to the Plaintiffs and exercised some control over them.
Accordingly, the Defendants' motion to dismiss the Plaintiffs'
claims based on a joint employer theory of liability against
Delaware North will be denied.
Judge Drozd now turns to whether the Plaintiffs have stated
cognizable claims against the remaining Defendants: Delaware North,
Kings Canyon, and Tenaya.
2. Meal and Rest Breaks (Claims 1 & 2)
The Plaintiffs contend that the allegations of their SAC cure the
deficiencies that the court had previously identified regarding
their meal and rest break claims, specifically that they had
"failed to identify any specific instance(s) where they were
deprived of meal or rest breaks."
Judge Drozd holds that the Plaintiff's new allegations are
sufficient to state meal and rest break claims. First, he says, the
Plaintiffs allege that the Defendants have policies controlling
where rest breaks can be taken, and such policies facially violate
California law. Second, as to the meal break allegations, Plaintiff
Perez has identified five instances when he was not provided a meal
break at all, while Plaintiff Vega has alleged one such instance.
Accordingly, the Defendants' motion to dismiss the Plaintiffs' meal
and rest break claims will be denied. Judge Drozd also reiterates
that the Plaintiffs' rest break claim only remains in the action as
asserted against Defendant Tenaya and Delaware North because the
rest break claim against Defendant Kings Canyon was dismissed with
prejudice on Oct. 30, 2019.
3. Minimum and Overtime Wages (Claims 3, 4, & 8)
The Court previously dismissed plaintiffs' claims for unpaid
minimum and overtime wages because it found that the Plaintiff had
not "alleged facts demonstrating there was at least one workweek in
which they worked in excess of 40 hours and were not paid overtime
wages." In the SAC, the Plaintiffs have alleged that they were not
paid all minimum wages and overtime hours because they were "often"
paid less than the overtime hours worked. They also have alleged
that the regular rate of pay used to determine their overtime wages
was calculated incorrectly due to their participation in fringe
benefit programs, which Plaintiff Perez participated in from Oct.
3, 2016 until Feb. 4, 2018 and Plaintiff Vega participated in from
Feb. 28, 2015 until Feb. 25, 2018.
Nonetheless, and despite the added allegations, Judge Drozd holds
that the Plaintiffs still fall short of stating a plausible claim
for failure to pay minimum and overtime wages. Critically, despite
the Court's guidance, they again have failed to allege the
approximate number of hours worked per week during the applicable
period, or roughly how often they worked more than 40 hours per
week or eight hours per day (thus entitling them to overtime pay).
In short, though the Plaintiffs include specific dates in their
SAC, their allegations remain vague and amount only to "legal
conclusions for which the SAC contains no supporting factual
allegations." Accordingly, the Defendants' motion to dismiss the
Plaintiffs' minimum wage and overtime wage claims will be granted.
Because the Plaintiffs have twice failed to cure all of the
pleading deficiencies identified by the Court in its previous two
orders dismissing the Plaintiffs' claims, and the Plaintiffs'
proposed third amended complaint still fails to rectify some of the
previously noted deficiencies, Judge Drozd finds that further
amendments would be futile and unduly prejudicial to the
Defendants.
4. Plaintiff Vega's Allegations of Inaccurate Wage Statements
(Claim 5)
In the SAC, Plaintiff Vega alleges that she received noncompliant
wage statements because the statements: (i) "state that her
employer is DNC P&R at Tenaya, Inc., though the actual name of this
employer is DNC Parks & Resorts at Tenaya, Inc."; and (ii) "did not
accurately reflect all of the hours she worked and did not state an
accurate overtime rate of pay, including her wage statement for the
pay period ending on Oct. 8, 2017, which did not include all of the
hours she worked and thus inaccurately stated her hours worked
during that pay period."
Judge Drozd holds that Plaintiff Vega's allegations fail to state a
plausible claim for several reasons. First, the first allegation
added by Plaintiff Vega is clearly insufficient to state a claim
under Section 226. Second, Plaintiff Vega's lone allegation that
her Oct. 8, 2017 wage statement "did not include all of the hours
she worked and did not state an accurate overtime rate of pay" is
too vague and does not allege a cognizable injury. Third, and
finally, Plaintiff Vega's claim is derivative of her insufficiently
pled allegations regarding her minimum wage and overtime claims.
Accordingly, the Defendants' motion to dismiss Plaintiff Vega's
Section 226 claim will be granted. Because of the paucity of detail
in the SAC with regard to Plaintiff Vega's Section 226 claim and
the plainly insufficient injury allegation Plaintiff Vega added in
the SAC, Judge Drozd concludes that granting further leave to amend
this claim would also be futile and prejudicial to the Defendants.
5. UCL (Claim 6) and PAGA (Claim 7)
The parties agree that the Plaintiffs' UCL and PAGA claims are
derivative of their underlying claims, and thus, either rise or
fall with those underlying claims. As such, Judge Drozd will deny
the Defendants' motion to dismiss the Plaintiffs' UCL claim and
PAGA claim to the extent they are based on alleged violations of
the California Labor Code Sections 226.7, 512, and sections of IWC
Wage Order No. 5-2001 addressing meal and rest breaks.
But, Judge Drozd will dismiss the Plaintiffs' UCL claim and PAGA
claim to the extent they are derivative of their third, fourth,
fifth, and eighth claims. He also reiterates that plaintiffs UCL
and PAGA claims will only proceed in this action against the
Defendants Tenaya and Delaware North because the Plaintiffs' UCL
and PAGA against Kings Canyon were dismissed with prejudice on Oct.
30, 2019.
6. Class Allegations
Finally, the Defendants seek dismissal of the Plaintiffs' class
allegations as insufficiently pled under Rule 12(b)(6). However,
"compliance with Rule 23 is not to be tested by a motion to dismiss
for failure to state a claim." Judge Drozd, therefore, declines to
address the issue now as it is more appropriately suited for the
class certification stage of the litigation. Accordingly, the
Defendants' motion to dismiss the Plaintiffs' class allegations is
denied without prejudice to be renewed at the appropriate time and
through the appropriate mechanism.
B. Motion to Strike
At bottom, the Defendants argue that the Plaintiffs' allegations
are "contradicted" by deposition testimony of Plaintiff Perez and a
copy of Plaintiff Vega's June 18, 2017 payroll record. However,
that the allegations in the complaint are "contradicted" by
extrinsic evidence attached to the Defendants' motion is not an
appropriate basis for a motion to strike. Moreover, the parties'
introduction of deposition testimony suggest the converting of the
pending motion to strike into a motion for summary judgment, which
the Court declines to do at this juncture in the case.
It follows that Judge Drozd will not consider deposition testimony
in disposing of the Defendants' motion to strike because "the
grounds for a motion to strike must appear on the face of the
pleading under attack." Accordingly, he will deny the Defendants'
motion to strike.
IV. Conclusion
For the reasons he explained, Judge Drozd granted in part the
Defendants' motion to dismiss:
a. The Plaintiffs' third, fourth, fifth, and eighth claims are
dismissed, without further leave to amend;
b. The Defendants' motion to dismiss plaintiffs' first,
second, sixth, and seventh claims is denied; and
c. The following Defendants are dismissed from the action:
Delaware North Companies Parks & Resorts, Inc.; DNC Parks & Resorts
at Sequoia; and DNC Parks & Resorts at Yosemite, Inc.
The Defendants motion to strike is denied.
The remaining Defendants will file their answer to the remaining
claims asserted by the Plaintiffs in their SAC within 21 days of
service of the Order.
The Clerk of the Court is directed to update the docket to reflect
that the following Defendants have been terminated from the action
as named defendants: i. Delaware North Companies Parks & Resorts,
Inc.; DNC Parks & Resorts at Sequoia; and DNC Parks & Resorts at
Yosemite, Inc.
The Clerk of the Court is also directed to correct the docket to
reflect that defendant DNC Parks & Resorts at Asilomar, Inc. was
dismissed from the action on Oct. 30, 2019 and had been terminated
as a named defendant in the action.
The Clerk of the Court is also directed to correct the docket to
reflect that Plaintiff Maria Socorro Vega was added as a named
plaintiff in the action on Nov. 14, 2019, when the Plaintiffs filed
their first amended complaint.
A full-text copy of the Court's Feb. 9, 2022 Order is available at
https://tinyurl.com/3mvakwuz from Leagle.com.
DOLLAR BANK: Weingartner Sues Over Improper Charge of Fees
----------------------------------------------------------
Jessica Weingartner, on behalf of herself and all other similarly
situated v. DOLLAR BANK, (Pa. Ct. of Common Pleas, Allegheny Cty.,
Feb. 7, 2022), is brought against the Defendant arising from its
routine practices of assessing more than one insufficient funds fee
("NSF Fee") on the same transaction.
Dollar's Account Documents allow Dollar to charge a single $36 NSF
Fee when a transaction is returned for insufficient funds or paid
despite insufficient funds. Dollar breaches its Account Documents
by charging more than one $36 NSF Fee on the same transaction,
since the contract explicitly states—and reasonable consumers
understand—that the same transaction can only incur a single NSF
Fee.
The Defendant's customers have been injured by the Bank's improper
practices to the tune of millions of dollars bilked from their
accounts in violation the Defendant's clear contractual
commitments. The Plaintiff seeks to end Dollar's abusive and
predatory practices and force it to refund all of these improper
charges. The Plaintiff asserts a claim for breach of contract,
including breach of the covenant of good faith and fair dealing,
and seeks damages, restitution, and injunctive relief. The
Plaintiff opts-out of and rejects and declines the attempted
binding arbitration clause in Dollar Bank's new Account Agreement.
While there is nothing unlawful about assessing NSF Fees on
accounts when such fees are assessed in compliance with contractual
terms, NSF Fees in general have a crushing impact on persons living
paycheck to paycheck. This is why the financial services industry
is increasingly moving away from such fees, says the complaint.
The Plaintiff is a citizen of the Commonwealth of Pennsylvania.
Dollar is a federal bank maintains its principal place of business
in Pittsburgh, Allegheny County, Pennsylvania.[BN]
The Plaintiff is represented by:
Kenneth J. Grunfeld, Esq.
GOLOMB, SPIRT & GRUNFELD, P.C.
1835 Market Street, Suite 2900
Philadelphia, PA 19103
Phone: (215) 985-9177
Email: kgrunfeld@golomblegal.com
FIFTYONE MERCHANTS: Rendon Sues Over Unpaid OT for Restaurant Staff
-------------------------------------------------------------------
GEOVANNY RENDON, JOEL ROSAS and EMMANUEL MORALES, individually and
on behalf of all others similarly situated, Plaintiffs v. FIFTYONE
MERCHANTS LLC D/B/A VIA CAROTA AND RITA SODI, Defendants, Case No.
1:22-cv-01305 (S.D.N.Y., February 16, 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, illegal deduction from gratuities, failure to provide
accurate wage notice, and failure to provide accurate wage
statements.
Mr. Rendon and Mr. Rosas worked as bussers from July of 2018 to
January of 2019 and from April 2018 to March of 2020,
respectively.
Mr. Morales worked as a server and bartender from June of 2021 to
the present.
FiftyOne Merchants LLC is an owner and operator of a restaurant
called Via Carota, located at 51 Groove St., New York, New York.
[BN]
The Plaintiffs are represented by:
Jeffrey E. Goldman, Esq.
THE LAW OFFICES OF JEFFREY E. GOLDMAN
260 Madison Ave., 15th Floor
New York, NY 10016
Telephone: (212) 983-8999
Facsimile: (646) 693-2289
FIRENZE JEWELS: Miller Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Firenze Jewels, Inc.
The case is styled as Kimberly Miller, on behalf of herself and all
other persons similarly situated v. Firenze Jewels, Inc., Case No.
1:22-cv-01370 (S.D.N.Y., Feb. 17, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Firenze Jewels -- http://www.firenzejewels.com/-- is a veteran
family-owned shop with wedding bands, high-end designer jewelry & a
large diamond selection.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
FIRST CLASS: Blair Sues Over Unpaid OT for Technician Laborers
--------------------------------------------------------------
TAMIR BLAIR, individually and on behalf of all others similarly
situated, Plaintiff v. FIRST CLASS APPLIANCE DELIVERY LLC and JAMIE
SANGSTER, Defendants, Case No. 2:22-cv-00102-SPC-NPM (M.D. Fla.,
February 15, 2022) is a class action against the Defendants for
failure to compensate the Plaintiff and similarly situated laborers
overtime pay for all hours worked in excess of 40 hours in a
workweek in violation of the Fair Labor Standards Act.
The Plaintiff was employed by the Defendants as a non-exempt
installer technician laborer from March 2018 through August 13,
2021.
First Class Appliance Delivery LLC is an appliance repair service
in Michigan. [BN]
The Plaintiff is represented by:
Noah E. Storch, Esq.
RICHARD CELLER LEGAL, P.A.
10368 West State Road 84, Suite 103
Davie, FL 33324
Telephone: (866) 344-9243
Facsimile: (954) 337-2771
E-mail: noah@floridaovertimelawyer.com
FULL SPECTRUM: Underpays Therapy Assistants, Crozier Suit Says
--------------------------------------------------------------
HAYLEY CROZIER, individually and on behalf of all others similarly
situated, Plaintiff v. FULL SPECTRUM PEDIATRIC THERAPY, INC. and
LANA BROOME, Defendants, Case No. 3:22-cv-00106 (M.D. Tenn.,
February 16, 2022) is a class action against the Defendants for
unpaid minimum wages and overtime compensation in violation of the
Fair Labor Standards Act.
The Plaintiff worked for the Defendants as an occupational therapy
assistant in Tennessee.
Full Spectrum Pediatric Therapy, Inc. is an operator of a physical
therapy practice in Clarksville, Tennessee. [BN]
The Plaintiff is represented by:
Curt M. Masker, Esq.
THE MASKER FIRM
810 Dominican Drive, Suite 314
Nashville, TN 37228
Telephone: (615) 270-2098
Facsimile: (615) 821-0632
E-mail: curt@maskerfirm.com
GERON CORPORATION: Junge Suit Transferred to N.D. California
------------------------------------------------------------
The case styled as Julia Junge, Richard Junge, on behalf of
themselves and a class of similarly situated v. Geron Corporation,
John A. Scarlett, Defendants; Janssen Biotech, Inc., Respondent;
Case No. 2:22-mc-00005 was transferred from the U.S. District Court
for the Eastern District of Pennsylvania, to the U.S. District
Court for the Northern District of California on Feb. 16, 2022.
The District Court Clerk assigned Case No. 4:22-mc-80051-DMR to the
proceeding.
The nature of suit is stated as Other Statutory Actions.
Geron -- https://www.geron.com/ -- is a clinical stage
biopharmaceutical company focused on the development of a
telomerase inhibitor, imetelstat, in hematologic myeloid
malignancies.[BN]
The Plaintiff is represented by:
Matthew Powers McCahill Esq.
Jason A. Uris Esq.
KAPLAN FOX & KILSHEIMER LLP
850 Third Avenue
New York, NY 10022
Phone: (212) 687-1980
Email: mmccahill@kaplanfox.com
juris@kaplanfox.com
The Defendant is represented by:
George W. McClellan, Jr., Esq.
MCCLELLAN BERNSTIEL, LLP
103 Carnegie Center, Suite 300
Princeton, NJ 08540
Phone: (609) 200-0570
Email: george@gmclegal.com
GIESEN MANAGEMENT: Reagh Sues Over Unpaid Wages, Unjust Enrichment
------------------------------------------------------------------
COURTNEY REAGH, individually and on behalf of all others similarly
situated, Plaintiff v. GIESEN MANAGEMENT ASSOCIATES, LLC and DAVID
GIESEN, Defendants, Case No. 5:22-cv-00266-SL (N.D. Ohio, February
16, 2022) is a class action against the Defendants for unjust
enrichment and unpaid overtime wages in violation of the Fair Labor
Standards Act and Ohio common law.
The Plaintiff was employed by the Defendants as an hourly-paid
employee from December 2021 to February 2022.
Giesen Management Associates, LLC is a restaurant management firm,
with its principal place of business at 5303 S. Franklin Cir.,
Greenwood Village, Colorado. [BN]
The Plaintiff is represented by:
Joseph F. Scott, Esq.
Ryan A. Winters, Esq.
Kevin M. McDermott II, Esq.
SCOTT & WINTERS LAW FIRM, LLC
The Caxton Building
812 Huron Rd. E., Suite 490
Cleveland, OH 44115
Telephone: (216) 912-2221
Facsimile: (216) 350-6313
E-mail: jscott@ohiowagelawyers.com
rwinters@ohiowagelawyers.com
kmcdermott@ohiowagelawyers.com
- and –
Mark W. Biggerman, Esq.
MARK W. BIGGERMAN, ATTORNEY AT LAW
29325 Chagrin Blvd., Suite 305
Pepper Pike, OH 44122
Telephone: (216) 831-4935
Facsimile: (216) 831-9526
E-mail: mark@mblegal.com
GLAXOSMITHKLINE CONSUMER: Calchi Files ADA Suit in S.D. New York
----------------------------------------------------------------
A class action lawsuit has been filed against GlaxoSmithKline
Consumer Healthcare Holdings (US) LLC, et al. The case is styled as
Nancy Calchi, individually and on behalf of all others similarly
situated v. GlaxoSmithKline Consumer Healthcare Holdings (US) LLC,
GSK Consumer Health, Inc., Pfizer Inc., Case No. 7:22-cv-01341-KMK
(S.D.N.Y., Feb. 16, 2022).
The nature of suit is stated as Contract Product Liability.
GlaxoSmithKline Consumer Healthcare --
https://us.gsk.com/en-us/home/ -- research and develop a broad
range of innovative products in three primary areas of
Pharmaceuticals, Vaccines and Consumer Healthcare.[BN]
The Plaintiff is represented by:
Jonas Bram Jacobson, Esq.
DOVEL & LUNER, LLP
201 Santa Monica Blvd., Suite 600
Santa Monica, CA 90401
Phone: (310) 656-7066
Email: jonas@dovel.com
GLEAM HOLDINGS: Abreu Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Gleam Holdings, Inc.
The case is styled as Luigi Abreu, individually, and on behalf of
all others similarly situated v. Gleam Holdings, Inc., Case No.
1:22-cv-01331 (S.D.N.Y., Feb. 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Gleam Holdings, which also operates under the name Melanie Mills
Hollywood -- https://melaniemillshollywood.com/ -- is located in La
Crescenta, California and is part of the Drugs and Druggists'
Sundries Merchant Wholesalers Industry.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
HARTFORD HEALTHCARE: Brown Sues Over Hospital Services' Monopoly
----------------------------------------------------------------
JOHN BROWN, LISA FAGAN, MICHAEL FAGAN, JEFFREY FORDE, JOSHUA
PAWELEK, and JOHN STOEHR, individually and on behalf of all others
similarly situated, Plaintiffs v. HARTFORD HEALTHCARE CORPORATION,
Defendant, (Conn. Super. Ct., Hartford, February 14, 2022) is a
class action against the Defendant for monopolization in violation
of state antitrust law, attempted monopolization, restraint in
trade, and violation of the Connecticut Unfair Trade Practices
Act.
The case arises from the Defendant's alleged use of unlawful and
anticompetitive methods to restrain trade, to acquire a monopoly on
acute inpatient hospital services in many key regions in
Connecticut, and to abuse that monopoly by using it to extract
higher prices from insurers, employers, and patients throughout the
areas it does business. As a result of the Defendant's alleged
anticompetitive practices, the Plaintiffs and other Connecticut
residents enrolled in commercial health plans are paying
drastically inflated prices for their healthcare.
Hartford HealthCare Corporation is a healthcare services company,
with its principal place of business at One State Street, Suite 19,
Hartford, Connecticut. [BN]
The Plaintiffs are represented by:
Peter A. Gwynne, Esq.
PERRY GUHA LLP
1740 Broadway, 15th Floor
New York, NY 10019
Telephone: (212) 399-8352
E-mail: pgwynne@perryguha.com
HILMAR CHEESE: Paguada Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Hilmar Cheese
Company, Inc. The case is styled as Josue Paguada, on behalf of
himself and all others similarly situated v. Hilmar Cheese Company,
Inc., Case No. 1:22-cv-01294 (S.D.N.Y., Feb. 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Hilmar Cheese Company -- https://www.hilmarcheese.com/ -- is a
cheese and whey products manufacturer headquartered in Hilmar,
California, United States.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
HIRERIGHT LLC: Snell Files TCPA Suit in N.D. Georgia
----------------------------------------------------
A class action lawsuit has been filed against HireRight LLC. The
case is styled as Edwin Snell, individually and on behalf of all
others similarly situated v. HireRight LLC, Case No.
1:22-cv-00646-MHC (N.D. Ga., Feb. 15, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act.
HireRight -- https://www.hireright.com/ -- is a leading provider of
on-demand employment background checks, drug testing, Form I-9 and
employment and education verifications.[BN]
The Plaintiff is represented by:
Tristan Wade Gillespie, Esq.
600 Blakenham Court
Johns Creek, GA 30022
Phone: (404) 276-7277
Email: gillespie.tristan@gmail.com
HOME ARTS: Faces Diaz Wage-and-Hour Suit in S.D. Florida
--------------------------------------------------------
RUFA DIAZ, individually and on behalf of all others similarly
situated, Plaintiff v. HOME ARTS DESIGN FLORIDA, CORP. and EDGARD
A. SANTOS, Defendants, Case No. 0:22-cv-60340 (S.D. Fla., February
15, 2022) is a class action against the Defendants for unpaid
overtime wages in violation of the Fair Labor Standards Act.
The Plaintiff was employed by the Defendants as a secretary from
November 01, 2012 to December 01, 2021.
Home Arts Design Florida, Corp. is a construction company, with
offices located at 1135 SW 1st Way, Deerfield Beach, Florida. [BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
HONDA DEVELOPMENT: Albert Sues Over Unpaid Overtime for Workers
---------------------------------------------------------------
MICHAEL ALBERT, individually and on behalf of all others similarly
situated, Plaintiff v. HONDA DEVELOPMENT & MANUFACTURING OF
AMERICA, LLC, Defendant, Case No. 2:22-cv-00694-EAS-KAJ (S.D. Ohio,
February 15, 2022) is a class action against the Defendant for its
failure to compensate the Plaintiff and similarly situated
employees overtime pay for all hours worked in excess of 40 hours
in a workweek in violation of the Fair Labor Standards Act and Ohio
law.
Mr. Albert was employed as a non-exempt employee by the Defendant
in Ohio.
Honda Development & Manufacturing of America, LLC is a research and
product development company in Ohio. [BN]
The Plaintiff is represented by:
Joseph F. Scott, Esq.
Ryan A. Winters, Esq.
Kevin M. McDermott II, Esq.
SCOTT & WINTERS LAW FIRM, LLC
The Caxton Building
812 Huron Rd. E., Suite 490
Cleveland, OH 44115
Telephone: (216) 912-2221
Facsimile: (216) 350-6313
E-mail: jscott@ohiowagelawyers.com
rwinters@ohiowagelawyers.com
kmcdermott@ohiowagelawyers.com
ILUKA RESOURCES: Won Shareholder Class Action in Australia
----------------------------------------------------------
clydeco.com reports that only the third judgement in a shareholder
class action in Australia [1] was handed down on February 7, 2022.
The defendant company (Iluka Resources) was successful on all
counts and the judgment follows the other recent successes in the
WorleyParsons [2] class action (where WorleyParsons was similarly
successful on all counts) and the Myer[3] class action (where Myer
lost on liability but was successful on causation). The judgment
provides firstly, assurance to companies and their D&O insurers
that shareholder class actions are not necessarily merely a cheque
writing exercise and that robust defences will be accepted by the
courts; and secondly it provides useful analysis of the factors
that are required for a successful defence of a shareholder class
action in Australia, including the importance of limitations and
caveats on any forecasts that are made.
Patrick Boardman acted for the lead primary D&O insurer of Iluka
and considers the case in further detail. Clyde & Co are very
pleased to say that they have now acted for the lead insurer on the
only two entirely successful shareholder class actions defences,
with Clyde & Co partner, Christopher Smith acting for the primary
D&O insurer in WorleyParsons.
Background
Iluka Resources Ltd (Iluka) is a large mining and global supplier
of mineral sands products (zircon, rutile and synthetic rutile
which are mainly used in the manufacture of ceramic tiles and
paint). The proceedings involved four ASX announcements regarding
production/sales forecasts:
-- the original yearly forecast on 23 February 2012 which was based
on Iluka's budget;
On 12 April when it maintained its forecast and 8 May when Iluka
slightly changed that original forecast; and
-- On 9 July 2012 when Iluka significantly reduced its forecasted
sales, at which time Iluka's share price fell 25%.
The proceedings were filed in 2018 and alleged that Iluka had
contravened its continuous disclosure obligations under the
Corporations Act and the misleading or deceptive conduct provisions
of the Corporations Act, ASIC Act and the Australian Consumer Law
in relation to its production and sales forecasts. The Applicant
effectively alleged that Iluka should have disclosed the 'true'
sales forecasts earlier or at least announced that the previous
forecasts would not be met, which would have caused the share price
to fall. This meant that shareholders who purchased in the relevant
intervening period purchased at an inflated price.
Issues in the Case
Two essential issues in the case were:
-- whether Iluka had reasonable grounds for the sales guidance
provided between April and July 2012 and;
-- whether Iluka was "aware" that its likely sales in 2012 would be
materially less than the guidance provided during the relevant
period being 12 April 2012 to 9 July 2012.
The Applicant alleged that Iluka knew that it:
-- did not have reasonable grounds to make either the April or May
forecast representations;
-- had information which created a material risk that both the
April and May forecast representations were no longer reliable;
-- was no longer able to provide reliable forecasts of future
revenue, or
-- did not have a reasonable basis for providing point estimates of
sales for mineral sands products rather than a broad range going
forward.
Whether representations were made at all?
An interesting element to the case was whether the representations
alleged by the Applicant had actually been made by Iluka. Iluka
specifically denied that it had made any forecast representations
in their announcements. The statements made were referable to
sales, not expected pricing, revenue or profit, and importantly,
were heavily caveated with limitations and disclaimers, including
that:
-- there were material risks that the sales guidance would not be
achieved, including identified;
-- there were a number of reasons why it had to qualify its 2012
sales guidance saying it could not be relied on as a predictor of
future performance and
-- its sales guidance was the best guidance it could provide at the
time but was subject to all its qualifications in its original
February announcement including:
(a) they were based on its current knowledge and understanding and
in good faith;
(b) they were all expressed to be an indicative guide only;
(c) they should not be relied upon as a predictor of future
performance;
(d) they were for the purpose of assisting sophisticated investors
with the modelling of the company; and
(e) they wouldn't be liable for the correctness and/or accuracy of
the information nor any differences between the information
provided and actual outcomes
The Judge held that the representations alleged by the Applicant
were not made by Iluka as the meaning prescribed to them by the
Applicant could not be maintained, particularly in light of the
stated limitations.
The Judge distinguished Myer which held that "a reasonable person
would not regard a standard form disclaimer as gutting the opinion
or forecast of meaningful content or that disclaimers could negate
the representations made." In Iluka the disclaimers were not
proforma, had been made in the context of identified difficulty in
predicting the global economic position on which sales were
dependent, were a prominent part of the documents and were said to
be directed to sophisticated investors for modelling purposes.
Further, the Judge determined that even if the representations were
made, the Applicant did not rely on them. Instead, he relied on
alternate analysis and research, such that the misleading and
deceptive conduct case failed.
What are "Reasonable" Grounds for Representations
Notwithstanding the finding that the representations were not made,
the Judge provided useful guidance on the evidence a company will
be required to adduce to support a reasonable basis for any
representations made[4].
In making an assessment about whether there was a reasonable basis,
the Judge rejected Iluka's proposition that a determination of
reasonableness only required the Judge to ask "did Iluka apply a
reasonable process, taking into account relevant information, to
arrive at the conclusions that it did?" The Judge said that in
answering the relevant question of whether or not there were
reasonable grounds for the representations, the issue was one of
substance, not merely process.
This meant that while the process on which a statement has been
formulated is relevant, it is not determinative of the issue and
there needs to be additional evidence before the court about how
that process was considered and implemented. In Myer, Beach J
referred to the directors' 'genuine assessment' which supported the
Judge's finding that there needed to be a question of substance.
In Iluka the Judge held that:
"The evidence has not exposed any issue which Iluka failed to
consider in formulating its public statements between February and
July 2012. It has not exposed any lack of a genuine assessment of
the relevance of the issue having regard to the circumstances as
they existed at the time. It has not exposed any material for which
in should be inferred that Iluka was unreasonably ignoring
information that did not suit it. Rather, the evidence has exposed
that the relevant Iluka personnel were highly experienced in the
markets in which Iluka operated, and were careful, diligent and
continuously exerted themselves to ensure that the information that
Iluka gave to the market was accurate and timely.
This is not mere evidence of a "process" . . . . Iluka's evidence,
however, goes well beyond that of a mere robust process (although
the evidence does establish that its processes were robust)."
Iluka's evidenced showed that its witnesses were: (a) all highly
experienced in the industry; (b) the key personnel were well
informed about all relevant issues and were careful and considered
in their approaches; (c) had taken to account all issues of
relevance and had the objective of being as accurate as possible in
their guidance.
Continuous Disclosure - Whether a company needs to disclose an
opinion it doesn't have
The judge also rejected the Applicant's claim for breach of
continuous disclosure obligations on the basis that at the time of
making the April and May representations, Iluka had reasonable
grounds to make those statements and could not have been aware of
contrary information that those forecasts were no longer reliable.
However, the Judge rejected Iluka's submissions that the continuous
disclosure requirements "only require an opinion to be disclosed if
the opinion is actually held by the directors or if the opinion is
held by someone else and should have become known to the
directors"
This important limitation on continuous disclosure arose from the
previous decision in Myer and has been utilised extensively by
Defendants since. However, the Judge considered those comments to
be obiter and not binding on her. She held that if an officer had
possessed information from which they reasonably ought to have
formed a conclusion requiring disclosure, then a failure to
disclose that opinion would contravene the continuous disclosure
laws.
Causation - What does Short Selling of a Stock Indicate
Her Honour also found that the class members would have failed to
establish causation on the basis that the event study the class
members relied on was based on faulty expert evidence.
An interesting observation made by the judge was that if a
particular stock is being short sold it does not necessarily
provide an inference that a company's sales guidance is
unreasonable (i.e. it does not support the notion that all
information must not have been disclosed).
Analysis and Commentary
This successful defence by Iluka, together with the successful
defences in the Worley Parsons and Myer class actions provides
companies, their directors, and insurers with confidence that
shareholder class actions are not merely a cheque book writing
exercise and that a court will take account of well prepared and
relevant defences, with well-prepared witnesses, even about events
9 years earlier. It also provides an outline of how such cases can
be avoided or limited by careful and considered limitations and
restrictions on any forecasts provided.
Previously some Judges have been flippant enough to question
whether shareholder class actions required directions for service
of liability evidence, and whether all that was required was
quantum evidence, given that all shareholder class actions had
previously settled. Clearly that notion has been dispelled by
recent judgments.
The judgment:
-- emphasises that a company should have both clear and proper
processes in place in respect of any forecast provided to the
market, and a record of its detailed and considered assessment of
all relevant information by appropriately qualified and experienced
directors/officers. It was the evidence of the latter, aligned with
the former, which was critical in the successful defence of the
claim. Further, to rebut that proposition requires clear and
specific evidence by the Applicant.
-- demonstrates the importance of providing appropriate
qualifications and limitations to any market guidance, including:
any difficulties and uncertainties in providing the forecast;
emphasising it being an indicative guide only and not a predictor
of future performance; providing any limitation on its intended
audience and purpose. These qualifications are an area in which
companies and their D&O insurers could work together in seeking to
limit the risks of class actions arising and also potentially limit
the nature and extent of forecasts which insurers may be prepared
to cover.
The successful defence also highlighted the importance of a good
working relationship and involvement between the company, its
defence team and its D&O insurers.
[1] Bonham as Trustee for the Aucham Super Fund v Iluka Resources
Ltd [2022] FCA 71
[2] Crowley v Worley Limited [2020] FCA 1522
[3]TPT Patrol Pty Ltd as trustee for Amies Superannuation Fund v
Myer Holdings Ltd [2019] FCA 1747
[4] A sales forecast is a representation about a future matter such
that the onus is on the company to establish that it had a
reasonable basis for that forecast. [GN]
IMERYS FILTRATION: Lewis Suit Removed to C.D. California
--------------------------------------------------------
Robert Lewis, as an individual and on behalf of all others
similarly situated v. IMERYS FILTRATION MINERALS, INC., a Delaware
corporation; IMERYS PERFORMANCE MINERALS AMERICAS, INC., a Delaware
corporation; and DOES 1 through 100, Case No. 21CV04587 was removed
from the Superior Court of the State of California for the County
of Santa Barbara to the United States District Court for the
Central District of California on Feb. 4, 2022, and assigned Case
No. 2:22-cv-00785-MCS-KS.
The Plaintiff filed an unverified Class Action Complaint which sets
forth the following five causes of action: failure to pay all
minimum wages; meal period violations; rest period violations;
waiting time penalties; and unfair competition [BN]
The Defendants are represented by:
Adam Y. Siegel, Esq.
Eric J. Gitig, Esq.
Jade M. Brewster, Esq.
JACKSON LEWIS P.C.
725 South Figueroa Street, Suite 2500
Los Angeles, CA 90017-5408
Phone: (213) 689-0404
Facsimile: (213) 689-0430
Email: Adam.Siegel@jacksonlewis.com
Eric.Gitig@jacksonlewis.com
Jade.Brewster@jacksonlewis.com
INMEDIATA HEALTH: Settles Data Breach Class Action for $1.1-MM
--------------------------------------------------------------
topclassactions.com reports that Inmediata has agreed to pay over
$1.1 million to resolve claims it put its customers at risk in a
2019 data breach.
The settlement benefits individuals whose information was stored on
Inmediata networks and who received notice of the 2019 data breach
in April 2019.
Inmediata is a healthcare service provider specializing in health
information systems. Inmediata products include billing systems,
records systems, clearinghouse products, and claims management.
Beginning in January 2019, a third party gained access to Inmediata
networks during a criminal cyberattack. This data breach reportedly
compromised Inmediata customer data including names, addresses,
Social Security numbers, telephone numbers, and private health
information. Over 1.5 million individuals were affected by this
breach.
Shortly after Inmediata informed customers of the breach in April
2019, consumers lodged a class action lawsuit against the company.
According to the plaintiffs, Inmediata failed to protect their
information through reasonable security measures. The plaintiffs
also challenged the amount of time it took for them to be informed
of the breach.
Inmediata hasn't admitted any wrongdoing but agreed to pay $1.125
million to resolve these allegations.
Under the terms of the settlement, Class Members can collect cash
payments.
All Class Members are eligible for up to $2,500 in reimbursement
for out-of-pocket expenses related to the data breach. This
includes credit monitoring services, fraudulent charges, various
fees, and even three hours of lost time billable at a rate of $15
per hour.
Class Members who lived in California at the time of the breach are
eligible for an additional payment of $50 or more under the state's
Confidentiality of Medical Information Act (CMIA). Exact California
CMIA payments will vary depending on the number of Californian
Class Members who submit a claim.
In addition to these cash payments, all Class Members are eligible
for non-monetary benefits including free credit and identity theft
monitoring through Kroll's Web Watcher.
The deadline for exclusion and objection is April 19, 2022.
The final approval hearing for the Inmediata settlement is
scheduled for April 21, 2022.
In order to benefit from the settlement, Class Members must submit
a valid claim form by March 21, 2022.
Who's Eligible
The settlement benefits individuals whose information was stored on
Inmediata networks and who received notice of the 2019 data breach
in April 2019.
Potential Award
Up to $2,500
Proof of Purchase
For Out-of-Pocket Losses include Reasonable Documentation
supporting each claimed cost. Such as account statement with
unauthorized charges highlighted; correspondence from financial
institution declining to reimburse you for fraudulent charges;
receipt for hiring service to assist you in addressing identity
theft; accountant bill for re-filing tax return; letter from IRS or
state about tax fraud in your name; documents reflecting length of
time you waited to receive your tax refund and the amount; notices
or account statements reflecting payment for a credit freeze;
receipts or account statements reflecting purchases made for credit
monitoring & insurance services; phone bills, gas receipts, postage
receipts; detailed list of locations to which you traveled (i.e.
police station, IRS office), indication of why you traveled there
(i.e. police report or letter from IRS re: falsified tax return)
and number of miles you traveled. [GN]
INNOVATIVE HEIGHTS: Amended Proposed Sched, Discovery Order Filed
-----------------------------------------------------------------
In the class action lawsuit captioned as MADISYN STAUFFER, on
behalf of herself and all others similarly situated, v. INNOVATIVE
HEIGHTS FAIRVIEW HEIGHTS, LLC, et al., Case No. 3:20-cv-00046-MAB
(S.D. Ill.), the Parties submit amended proposed scheduling and
discovery order as follows:
1. Depositions of Plaintiff(s) shall July 22, 2022
be taken by:
2. Depositions of Defendant(s) shall July 22, 2022
be taken by:
3. Expert witnesses for Class
Certification, if any, shall be
disclosed, along with a written
report prepared and signed by the
witness pursuant to Federal Rule
of Civil Procedure 26(a)(2), as
follows:
-- Plaintiff(s) expert(s): Aug. 12, 2022
-- Defendant(s) expert(s): Sept. 23, 2022
-- Plaintiff(s) rebuttal
expert(s): Nov. 7, 2022
4. Depositions of Class Dec. 2, 2022
Certification expert witnesses
must be taken by
5. Plaintiff(s) Motion for Class Dec. 16, 2022
Certification and Memorandum in
Support shall be filed by:
A copy of Parties' motion dated Feb. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/368FrNv at no extra charge.[CC]
The Plaintiff is represented by:
Kevin P. Green, Esq.
GOLDENBERG HELLER & ANTOGNOLI, P.C.
Telephone: (618) 656-5150
Facsimile: (618) 656-6230
Edwardsville, IL
E-mail: kevin@ghalaw.com
The Defendants are represented by:
Thomas M. Wolf, Esq.
550 West Adams Street, Suite 300
Chicago, IL 60661
Telephone: (312) 463-3465
Facsimile: (312) 345-1778
E-mail: iconThomas.Wolf@lewisbrisbois.com
- and -
Kenneth L. Schmetterer, Esq.
203 N LaSalle St, No. 1900
Chicago, IL 60601
Telephone: (312) 368 2176
Facsimile: (312) 630 6350
E-mail: kenneth.schmetterer@dlapiper.com
J. F. MEAT: Faces Fernandez Wage-and-Hour Suit in S.D. New York
---------------------------------------------------------------
RAFAEL FERNANDEZ, individually and on behalf of all others
similarly situated, Plaintiff v. J. F. MEAT & GROCERY CORP., LUIS
FERREIRA, DANIEL FERREIRA, GIOVANNI FERREIRA, and JULIO GUZMAN,
Defendants, Case No. 1:22-cv-01258 (S.D.N.Y., February 15, 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 overtime wages, failure to pay spread-of-hour premiums, failure
to provide accurate payroll notices, failure to provide accurate
wage statements, and failure to timely pay wages.
The Plaintiff worked for the Defendants as a deli clerk from in or
around 2013 until on or around March 2021.
J. F. Meat & Grocery Corp. is an owner and operator of a C-Town
Supermarket, located at 1016 St. Nicholas Avenue, New York, New
York. [BN]
The Plaintiff is represented by:
Eliseo Cabrera, Esq.
KATZ MELINGER PLLC
370 Lexington Avenue, Suite 1512
New York, NY 10016
Telephone: (212) 460-0047
Facsimile: (212) 428-6811
E-mail: edcabrera@katzmelinger.com
JOHNSON HEALTH: Abreu Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Johnson Health Tech
Retail, Inc. The case is styled as Luigi Abreu, individually, and
on behalf of all others similarly situated v. Johnson Health Tech
Retail, Inc., Case No. 1:22-cv-01327 (S.D.N.Y., Feb. 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Johnson Health Tech family --
https://www.johnsonhealthtech.com/ -- includes multiple fitness and
wellness brands that serve all major sales channels and markets
around the world.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
JUUL LABS: Collinsville Sues Over E-Cigarette Campaign to Youth
---------------------------------------------------------------
COLLINSVILLE COMMUNITY UNIT SCHOOL DISTRICT #10, MADISON COUNTY,
STATE OF ILLINOIS, 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-00929 (N.D. Cal., February 15, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of the 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.
Collinsville Community Unit School District is a school district
with its offices located at 201 West Clay Street, Collinsville,
Illinois.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
Andy D. Birchfield, Jr., Esq.
Joseph G. VanZandt, Esq.
Davis S. Vaughn, Esq.
BEASLEY ALLEN CROW METHVIN PORTIS & MILES, LLC
234 Commerce Street
Montgomery, AL 36103
Telephone: (334) 269-2343
E-mail: Andy.Birchfield@BeasleyAllen.com
Joseph.VanZandt@BeasleyAllen.com
Davis.Vaughn@BeasleyAllen.com
JUUL LABS: Edwardsville Sues Over Deceptive E-Cigarette Youth Ads
-----------------------------------------------------------------
EDWARDSVILLE COMMUNITY UNIT SCHOOL DISTRICT #7, MADISON COUNTY,
STATE OF ILLINOIS, 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-00932 (N.D. Cal., February 15, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of Public Nuisance Law and the Racketeer Influenced and
Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Edwardsville Community Unit School District is a school district
with its offices located at 708 St. Louis Street Edwardsville,
Illinois.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
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
KC PROFESSIONAL: Perez Suit Alleges Unpaid OT for Housekeepers
--------------------------------------------------------------
EVELYN PEREZ, individually and on behalf of all others similarly
situated, Plaintiff v. KC PROFESSIONAL SERVICES, LLC d/b/a
Hospitality Services of America a/k/a RSS LLC; KAY GISSY; and JORGE
MIGUEL RODRIGUEZ, Defendants, Case No. 6:22-cv-00356-GAP-LHP (M.D.
Fla., February 16, 2022) is a class action against the Defendants
for their failure to compensate the Plaintiff and similarly
situated housekeepers/inspectors overtime pay for all hours worked
in excess of 40 hours in a workweek in violation of the Fair Labor
Standards Act.
The Plaintiff has been employed as a housekeeper/inspector for the
Defendants since January 20, 2020.
KC Professional Services, LLC, doing business as Hospitality
Services of America, also known as RSS LLC, is a housekeeping
company doing business in Orlando, Florida. [BN]
The Plaintiff is represented by:
Aron Smukler, Esq.
R. Martin Saenz, Esq.
SAENZ & ANDERSON, PLLC
20900 NE 30th Avenue, Ste. 800
Aventura, FL 33180
Telephone: (305) 503-5131
Facsimile: (888) 270-5549
E-mail: asmukler@saenzanderson.com
msaenz@saenzanderson.com
KEITH D. WEINER: Waters Files FDCPA Suit in N.D. Ohio
-----------------------------------------------------
A class action lawsuit has been filed against Keith D. Weiner &
Associates Co., L.P.A., et al. The case is styled as Yevette
Waters, individually and on behalf of all others similarly situated
v. Keith D. Weiner & Associates Co., L.P.A., Case No.
1:22-cv-00263-SL (N.D. Ohio, Feb. 16, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Keith D. Weiner & Associates Co. (KWA) -- https://weinerlaw.com/ --
is a full-service debt collection law firm handling consumer,
commercial, and governmental claims, both unsecured and
secured.[BN]
The Plaintiff is represented by:
Amichai E. Zukowsky, Esq.
23811 Chagrin Blvd., Ste. 160
Beachwood, OH 44122
Phone: (216) 800-5529
Fax: (216) 514-4987
Email: ami@zukowskylaw.com
KITSAP RESIDENCES: Fails to Properly Pay Workers, Ong Suit Alleges
------------------------------------------------------------------
EMMANUEL ONG, individually and on behalf of all others similarly
situated, Plaintiff v. KITSAP RESIDENCES, Defendant, Case No.
3:22-cv-05095 (W.D. Wash., February 16, 2022) is a class action
against the Defendant for its failure to compensate the Plaintiff
and similarly situated workers overtime pay for all hours worked in
excess of 40 hours in a workweek in violation of the Fair Labor
Standards Act and the Washington Minimum Wage Act.
The Plaintiff was employed by the Defendant as a direct support
staff member from August of 2013 until January of 2022.
Kitsap Residences is a provider of residential care services to
adults with intellectual disabilities, headquartered in Port
Orchard, Washington. [BN]
The Plaintiff is represented by:
April Rheaume, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Pkwy, Suite 510
Little Rock, AR 72211
Telephone: (800) 615-4946
Facsimile: (888) 787-2040
E-mail: april@sanfordlawfirm.com
KROGER CO: Judge Dismissed Suit Over Mislabeled Jelly Products
--------------------------------------------------------------
John O'Brien at Legal Newsline reports that a lawsuit over jelly
sold at Kroger grocery stores has failed, as a federal judge has
agreed with a magistrate that reasonable consumers wouldn't be
misled by the name "Just Fruit."
Lawyers at Piucci Law, Milstein Jackson and Casey Law Firm alleged
customers are blindsided to find out the jam contains fruit syrup
and other sweeteners and not "just fruit." But Magistrate Judge
John Acosta in September issued recommendations that said
reasonable consumers wouldn't be that naïve.
The ingredients, which are all derived from fruit, are listed on
the label. On Feb. 1, District Judge Marco Hernandez in Oregon
adopted Acosta's findings and granted Kroger's motion to dismiss.
"Because the Court can conclude as a matter of law that members of
the public are not likely to be deceived by the product packaging,
the Court agrees with Judge Acosta's recommendation to grant
Defendants' motion to dismiss," Hernandez wrote.
Kroger filed its motion to dismiss in 2020, arguing plaintiff Sarah
Vitort's interpretation of "Just Fruit" is "subjective, implausible
and unreasonable."
The motion cited a 2015 ruling in a similar case in which the judge
wrote "One can hardly walk down the aisles of a supermarket without
viewing large pictures depicting vegetable or fruit flavors, when
the products themselves are largely made up of a different base
ingredient. Every reasonable shopper knows that the devil is in the
details."
The class action said reasonable consumers have paid more for a
product they expected to be made solely out of fruit than they
would have if they had known the jam contained other ingredients.
"The FDA makes clear fruit syrups contain added sugar which can
derive from processed fruits or fruit juices and that such sugars,
whether from fruits or other sources, must be listed as an added
sugar on a product's nutrition label," Acosta wrote.
"Consequently, the added sugars in the fruit syrup found in the
Product are just as likely to be from processed fruit as other
sugar sources.
"Even assuming Vitort's assertion that fruit syrup consists mostly
of added sugar is true, the added sugar could be fruit based and
Vitort does not allege otherwise." [GN]
L2 AUTOMOTIVE: Sends Unsolicited Telemarketing Calls, Aydin Claims
------------------------------------------------------------------
YAKENI AYDIN, individually and on behalf of all others similarly
situated, Plaintiff v. L2 AUTOMOTIVE INC., Defendant, Case No.
1:22-cv-01342 (S.D.N.Y., February 16, 2022) is a class action
against the Defendant for violation of the Telephone Consumer
Protection Act.
According to the complaint, the Defendant sent prerecorded calls to
the Plaintiff's cellular telephone number in an attempt to promote
its automotive dealership, vehicle inventory, and services without
prior express written consent. The Defendant's unsolicited
prerecorded messages caused the Plaintiff additional harm,
including invasion of privacy, aggravation, annoyance, intrusion on
seclusion, trespass, and conversion, says the suit.
L2 Automotive Inc. is an operator of an automobile dealership
business in New York. [BN]
The Plaintiff is represented by:
Rachel N. Dapeer, Esq
DAPEER LAW, P.A.
20900 N.E. 30th Ave., Ste. 417
Aventura, FL 333180
Telephone: (305) 610-5223
E-mail: rachel@dapeer.com
LEAF GROUP: Weekes Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Leaf Group LTD. The
case is styled as Robert Weekes, individually, and on behalf of all
others similarly situated v. Leaf Group LTD., Case No.
1:22-cv-01337 (S.D.N.Y., Feb. 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Leaf Group -- https://www.leafgroup.com/ -- formerly Demand Media
Inc., is an American content company that operates online brands
including eHow, livestrong.com and marketplace brands Saatchi Art
and Society6.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
LENDUS LLC: Remoundos Sues Over Failure to Properly Secure PII
--------------------------------------------------------------
Evangelia Remoundos, John Biegger, and Anne Biegger, on behalf of
themselves and on behalf of all others similarly situated v.
LENDUS, LLC, Case No. 3:22-cv-00749-LB (N.D. Cal., Feb. 4, 2022),
is brought against the Defendant for its failure to properly secure
and safeguard Personally Identifiable Information provided by its
clients or mortgage brokers, including, without limitation, first
and last names, mailing addresses, dates of birth, Social Security
numbers, and tax information ("PII").
On December 21, 2021, the Defendant identified "unauthorized
access" to LendUS email accounts connected to its servers It later
learned that "an unauthorized person accessed certain accounts at
various times between February 2, 2021 and March 22, 2021," and
that PII from its network may have been compromised (the "Data
Breach"). The Defendant failed to use reasonable industry standard
security measures, which would have prevented this type of attack
from being successful. The Defendant's failure to use such measures
is particularly egregious given the amount of highly sensitive PII
that it maintains and the prevalence of data security incidents in
the finance and banking industries.
By obtaining, collecting, using, and deriving a benefit from the
PII of the Plaintiffs and Class Members, the Defendant assumed
legal and equitable duties to those individuals to protect and
safeguard that information from unauthorized access and intrusion.
Hackers can access and then offer for sale this unencrypted,
unredacted PII to criminals. The exposed PII of the Plaintiffs and
Class Members can be sold on the dark web. The Plaintiffs and Class
Members now face a present and continuing lifetime risk of identity
theft, which is heightened here by the loss of Social Security
numbers.
The Plaintiffs bring this action on behalf of all persons whose PII
was compromised as a result of the Defendant's failure to: (i)
adequately protect the PII of the Plaintiffs and Class Members;
(ii) warn Plaintiffs and Class Members of the Defendant's
inadequate information security practices; and (iii) effectively
secure its network containing protected PII using reasonable and
effective security procedures free of vulnerabilities and
incidents. The Defendant's conduct amounts to negligence and
violates federal and state statutes, says the complaint.
The Plaintiffs and Class Members and/or Plaintiffs' and Class
Members' agents or employers relied on the sophistication of
Defendant to keep their PII confidential and securely maintained.
The Defendant is a mortgage company based in Alamo,
California.[BN]
The Plaintiffs are represented by:
M. Anderson Berry, Esq.
Gregory Haroutunian, Esq.
Clayeo C. Arnold, Esq.
A PROFESSIONAL LAW CORP.
865 Howe Avenue
Sacramento, CA 95825
Phone: (916) 239-4778
Facsimile: (916) 924-1829
Email: aberry@justice4you.com
gharoutunian@justice4you.com
- and -
Terence R. Coates, Esq.
MARKOVITS, STOCK & DEMARCO, LLC
3825 Edwards Road, Suite 650
Cincinnati, OH 45209
Phone: (513) 665-0204
Fax: (513) 665-0219
Email: tcoates@msdlegal.com
- and -
Joseph M. Lyon, Esq.
THE LYON FIRM, LLC
2754 Erie Avenue
Cincinnati, OH 45208
Phone: (513) 381-2333
Fax: (513) 721-1178
Email: jlyon@thelyonfirm.com
LEVY GORVY: Miller Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Levy Gorvy LLC. The
case is styled as Kimberly Miller, on behalf of herself and all
other persons similarly situated v. Levy Gorvy LLC, Case No.
1:22-cv-01280 (S.D.N.Y., Feb. 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Levy Gorvy -- https://www.levygorvy.com/ -- is a global leader in
postwar and contemporary art.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
LONGHORN PIZZA: Fails to Reimburse Delivery Drivers, Serrano Claims
-------------------------------------------------------------------
JOSHUA SERRANO, individually and on behalf of all others similarly
situated, Plaintiff v. LONGHORN PIZZA, INC., RICHARD HAFNER, JOSEPH
ROMANO, and ROBERT BRENT HAMILL, Defendants, Case No.
3:22-cv-00372-E (N.D. Tex., February 15, 2022) is a class action
against the Defendants for their failure to reimburse business
expenses in violation of the Fair Labor Standards Act.
The Plaintiff was employed by the Defendants as a delivery driver
at a Domino's store located in El Paso, Texas from approximately
2003 to July 2021.
Longhorn Pizza, Inc. is an owner and operator of Domino's franchise
stores in Texas. [BN]
The Plaintiff is represented by:
J. Forester, Esq.
Katherine Serrano, Esq.
David Burns, Esq.
Jessica Wells, Esq.
FORESTER HAYNIE PLLC
400 North Saint Paul St. Ste. 700
Dallas, TX 75201
Telephone: (214) 210-2100
Facsimile: (469) 399-1070
E-mail: jay@foresterhaynie.com
LYONS MAGNUS: Paguada Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Lyons Magnus, LLC.
The case is styled as Josue Paguada, on behalf of himself and all
others similarly situated v. Lyons Magnus, LLC, Case No.
1:22-cv-01295 (S.D.N.Y., Feb. 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Lyons Magnus -- https://www.lyonsmagnus.com/ -- is a leader in the
foodservice industry.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
MALIN + GOETZ INC: Miller Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Malin + Goetz Inc.,
et al. The case is styled as Kimberly Miller, on behalf of herself
and all other persons similarly situated v. Malin + Goetz Inc.,
Malin + Goetz Skincare Inc., Case No. 1:22-cv-01278 (S.D.N.Y., Feb.
15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Malin & Goetz Inc. -- https://www.malinandgoetz.com/ -- was founded
in 2002. The company's line of business includes the manufacturing
of perfumes, cosmetics, and other toilet preparations.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
MANDARICH LAW: Moore FCRA Suit Transferred to S.D. Florida
----------------------------------------------------------
The case styled as Shakuur Moore, on behalf of herself and all
others similarly situated v. Mandarich Law Group LLP, PYOD LLC,
Case No. 2:21-cv-02619 was transferred from the U.S. District Court
for the Central District of California, to the U.S. District Court
for the Southern District of Florida on Feb. 16, 2022.
The District Court Clerk assigned Case No. 1:22-cv-20481-KMM to the
proceeding.
The lawsuit is brought over alleged violation of the Fair Credit
Reporting Act.
Mandarich Law Group -- https://mandarichlaw.com/ -- is a law firm
located in Chatsworth, California.[BN]
The Plaintiff is represented by:
Matthew David Bavaro, Esq.
LOAN LAWYERS
3201 Griffin Road, Suite 100
Fort Lauderdale, FL 33312
Phone: (954) 523-4357
Email: matthew@fight13.com
MANFREDI OF GREENWICH: Hobbs Files ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Manfredi Of
Greenwich, Ltd. The case is styled as Alexandra Hobbs, on behalf of
herself and all other persons similarly situated v. Manfredi Of
Greenwich, Ltd., Case No. 1:22-cv-01282 (S.D.N.Y., Feb. 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Manfredi Of Greenwich -- https://www.manfredijewels.com/ -- is a
classy, long-running boutique offering a selection of fine jewelry
& designer watches.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
MANSUETO VENTURES: Weekes Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Mansueto Ventures,
LLC. The case is styled as Robert Weekes, individually, and on
behalf of all others similarly situated v. Mansueto Ventures, LLC,
Case No. 1:22-cv-01286 (S.D.N.Y., Feb. 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Mansueto Ventures -- https://www.mansueto.com/ -- is a publishing
company dedicated to serving the business leaders who are shaping
the future of today's economy.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
MARUGAME UDON USA: Redick Files ADA Suit in C.D. California
-----------------------------------------------------------
A class action lawsuit has been filed against Marugame Udon USA,
LLC, et al. The case is styled as Crystal Redick, individually and
on behalf of all others similarly situated v. Marugame Udon USA,
LLC a Delaware Limited Liability Company, Does 1 to 10, inclusive,
Case No. 2:22-cv-00794-RGK-KS (C.D. Cal., Feb. 4, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Marugame Udon USA -- https://www.marugameudon.com/ -- is the US
home of the largest udon restaurant in the world.[BN]
The Plaintiff is represented by:
Thiago Merlini Coelho, Esq.
Binyamin I. Manoucheri, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Boulevard 12th Floor
Los Angeles, CA 90010
Phone: (213) 381-9988
Fax: (213) 381-9989
Email: thiago@wilshirelawfirm.com
binyamin@wilshirelawfirm.com
MEDICAL REVIEW: Purvis Files Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Medical Review
Institute of America. The case is styled as Karen Purvis,
individually and on behalf of all others similarly situated v.
Medical Review Institute of America, Case No. 2:22-cv-00099-DAK
(S.D.N.Y., Feb. 16, 2022).
The nature of suit is stated as Other P.I.
Medical Review Institute of America (MRIoA) --
https://www.mrioa.com/ -- delivers technology-enabled review
services that increase member satisfaction, decrease the costs of
overutilization, provide benchmarking analytics and empower members
by offering them alternative choices through patient-focused
virtual second opinion services.[BN]
The Plaintiff is represented by:
James E. Magleby, Esq.
Jennifer F. Parrish, Esq.
MAGLEBY CATAXINOS & GREENWOOD
141 W Pierpont Ave.
Salt Lake City, UT 84101
Phone: (801) 359-9000
Fax: (801) 359-9011
Email: magleby@mcgiplaw.com
parrish@mcgiplaw.com
MELIORRA LLC: Abreu Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Meliorra, LLC. The
case is styled as Luigi Abreu, individually, and on behalf of all
others similarly situated v. Meliorra, LLC, Case No. 1:22-cv-01329
(S.D.N.Y., Feb. 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Meliorra has been dedicated to the discovery of new and unique
natural products in the field of health and wellness as well as
cosmetics.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
META PLATFORMS: Contributed to Copyright Infringement, Logan Claims
-------------------------------------------------------------------
DON RAMEY LOGAN, individually and on behalf of all others similarly
situated, Plaintiff v. META PLATFORMS, INC. f/k/a FACEBOOK, INC.,
Defendant, Case No. 1:22-cv-01316 (S.D.N.Y., February 16, 2022) is
a class action against the Defendant for copyright infringement and
violation of Digital Millennial Copyright Act.
According to the complaint, the Defendant allowed, induced,
encouraged and facilitated third party embedders who had Facebook
accounts to display copyrighted works without permission from the
Plaintiff and similarly situated copyright holders or from
Facebook. The Defendant is liable for the conduct of third-party
embedders who used the embed tool as a device or process to cause
copyrighted works to be displayed on each third-party website and,
therefore, Facebook contributed to causing the display of
copyrighted works, says the suit.
Meta Platforms, Inc., formerly known as Facebook, Inc., is a social
media and social networking service company, headquartered in Menlo
Park, California. [BN]
The Plaintiff is represented by:
Lee Squitieri, Esq.
SQUITIERI & FEARON, LLP
305 Broadway, 7th Floor
New York, NY 10007
Telephone: (212) 421-6492
Facsimile: (212) 421-6553
E-mail: lee@sfclasslaw.com
- and –
Mario A. Iskander, Esq.
THE LAW OFFICES OF MARIO A. ISKANDER
1245 N. Patt Street
Anaheim, CA 92801-2550
Telephone: (240) 439-1970
E-mail: marioeskander@hotmail.com
MG FREESITES: Bid to Dismiss Doe's First Amended Complaint Denied
-----------------------------------------------------------------
In the case, JANE DOE #1, and JANE DOE #2, on behalf of themselves
and all others similarly situated, Plaintiffs v. MG FREESITES, LTD,
d/b/a "PORNHUB", a foreign entity; MG FREESITES II LTD, a foreign
entity; MINDGEEK, S.A.R.L., a foreign entity; MINDGEEK USA,
INCORPORATED, a Delaware corporation; MG CY HOLDINGS LTD, a foreign
entity; MINDGEEK CONTENT RT LIMITED, a foreign entity; 9219-1568
QUEBEC INC. d/b/a MINDGEEK, a foreign entity; MG BILLING LTD, a
foreign entity, Defendants, Case No. 7:21-cv-00220-LSC (N.D. Ala.),
Judge L. Scott Coogler denied the Defendants' motion to dismiss the
Plaintiffs' First Amended Complaint.
I. Background
The Plaintiffs, two individuals proceeding pseudonymously who are
victims and survivors of childhood sex trafficking, bring the
putative class action against Defendants MG Freesites, LTD, doing
business as "Pornhub"; MG Freesites II, LTD; Mindgeek S.A.R.L.;
Mindgeek USA Inc.; MG CY Holdings LTD; Mindgeek Content RT Limited;
9219-1568 Quebec, Inc., doing business as Mindgeek; and MG Billing
LTD, alleging that the Defendants violated federal sex trafficking
and child pornography laws by owning, operating, controlling, and
profiting from websites that provide public video platforms to
share and view illegal child pornography.
The Defendants own and operate one of the largest and most-visited
pornographic websites in the world, www.Pornhub.com, as well as
www.YouPorn.com, www.RedTube.com, www.WTube.com, and www.Tube8.com.
In 2019, Pornhub averaged 115 million visits a day and acquired
1.36 million hours of new content. Nearly seven million new videos
were uploaded to Pornhub in 2019. Thirty-nine billion searches were
performed over 42 billion visits. Pornhub garnered more traffic
than tech giants Amazon and Netflix that year. The United States is
the country with the highest daily traffic on Pornhub, and Alabama
users rank second in the nation in time spent on Pornhub.
Pornhub's main feature is a library of pornographic videos uploaded
by third-party users, which the Defendants make available for free
to anyone, without a viewer even having to create an account. Until
December 2020, videos could be uploaded anonymously, and there was
no requirement that the uploader verify the age or consent of those
depicted in the videos. Until December 2020, visitors to the site
could not only view but also download videos. The Defendants
monetize the pornographic content on their websites in various
ways: Offering subscription services, selling advertising space,
entering into profit sharing agreements with uploaders, and data
mining. The Defendants' enterprise is profitable: Annual revenues
are at least $500 million.
The Defendants' business model is predicated on maximizing views
and traffic to Pornhub. They accomplish this by exerting control
over every video on the site, despite its source, through creating
and editing titles, tags, keywords, storylines, themes, and scenes.
Pornhub maintains a 40-page instruction guide, called "The Pornhub
Playbook," advising how to make money from the site. Pornhub
advises uploaders on what types of videos and images to post,
specifically suggests keywords and categories, and will edit
non-compliant posts.
The Defendants offer several profit-sharing programs with
uploaders, including their "Modelhub" program. Modelhub offers the
"amateur" pornographer various ways to upload content and create
view-based revenue on Pornhub and other sites. They threaten to
withdraw revenue if their rules are not followed. Because the
Defendants control the flow of money to Modelhub members, they can
force compliance with content creation according to their specific
parameters.
The Defendants do not rely exclusively on user-generated videos and
images but also include on their platforms videos and images from a
number of "Content Partners," which are companies that produce
pornography. They split advertising revenue with their Content
Partners. The Defendants own some of the entities they describe as
Content Partners. They also own their own production studios and
admit that they create at least some videos and images on Pornhub.
Further, the Defendants store a copy of all content on its servers,
regardless of whether the content is available for public view.
The Defendants' use of keywords and tags is essential for search
engine optimization ("SEO"), which drives users Googling
pornographic content to the Defendants' websites. Their focus on
certain keywords and tags, and their creation of related search
terms, has resulted in Defendants' websites regularly appearing
among the top results for virtually any pornography-related Google
search, and even for searches unrelated to pornography but which
contain certain keywords.
The Plaintiffs allege that victims and their representatives,
government agencies, and press reports have all made the Defendants
aware that child pornography or child sexual abuse material
("CSAM"), such as children being raped or assaulted, appear on
their websites. For example, a missing 15-year-old girl was spotted
by her mother in 58 pornographic videos, many of which were on
Pornhub.
In March 2020, after years of being confronted with allegations
that child pornography was being harbored and generating profit on
their websites, Defendants turned over 4,171 videos to the National
Center for Missing and Exploited Children ("NCMEC"), which is the
national clearinghouse for child pornography and/or CSAM reports.
The Plaintiffs allege that the Defendants clearly underreported,
considering that Facebook, a non-pornographic website, reported 20
million CSAM instances to NCMEC in 2020.
NCMEC also maintains a hash-sharing database that allows online
companies to check all videos and images against the database to
ensure they are not hosting CSAM. In February 2021, the Defendants
agreed to use the NCMEC hash-sharing database, but as of the end of
February 2021, the Defendants had not yet accessed the system to
check if any of the videos in their library matched those in the
database qualifying as known CSAM, which would require the video to
be removed and turned over to NCMEC to prevent future uploading and
to abide by U.S. child pornography laws.
In December 2020, Pornhub was the target of a New York Times report
describing videos on the site of assaults of unconscious women and
girls, which led to large credit card companies blocking customers
from using their credit cards to make purchases on the website.
That month, the Defendants enacted new policies, suspending the
majority of their videos -- 9 million to 10 million -- from Pornhub
because they were unverified.
The Plaintiffs allege that the Defendants know that there is a
demand for CSAM on their sites and cater to this demand by creating
tags, categories, and search suggestions that facilitate easy
access to CSAM, such as their suggested tags "teen," "abused teen,"
"crying teen," "extra small petite teen," and "middle school
girls." The Defendants closely track and publish data surrounding
traffic, keywords, and search terms on their sites, and their own
data demonstrates that the words "teen" and "amateur" are
consistently the top search terms in North America on Pornhub. And
as the New York Times reported, as of Dec. 4, 2020, a search for
"girlunder18" led to more than 100,000 videos; a search for "14yo"
led to more than 100,000 videos; and "13yo" led to approximately
155,000 videos on Pornhub.
The Plaintiffs' complaint also contains allegations that the
Defendants profit from CSAM specifically. They allege that the
Defendants are not verifying the ages or other information of the
individuals in these videos, yet the Defendants share the profits
from these videos, which have 9.8 million views.
The Plaintiffs allege that the Defendants use their Content Partner
program the same way, for example partnering, until December 2020,
with a company called GirlsDoPorn, whose leaders now face sex
trafficking charges for coercing women into producing pornography
and earning money from doing it. Similarly, another longtime
Content Partner of Defendants was Czech Casting, which has since
been shut down as nine people associated with the channel were
arrested for human trafficking, sexual coercion, and rape in July
2020. This was a highly successful channel on Pornhub with over 79
million views.
Aside from profiting from partnerships with sex traffickers, the
Plaintiffs also allege that Defendants earn revenue from CSAM
specifically through their fee-based subscription services, selling
advertisements, and by monetizing user data. The Defendants place
these advertisements on videos featuring CSAM. Traffic Junky edits
advertisements to highlight terms such as "girls," "boys," "broken
teens," and "twink," which are words commonly associated with CSAM.
Further, Traffic Junky advises advertisers of the most popular
keywords to use to reach users, including "teen."
The Plaintiffs further allege that the Defendants' policies, or
lack thereof, incentivize their employees not to remove CSAM and
sometimes prevent them from doing so altogether. They also allege
that the Defendants have made efforts to evade revealing the full
extent of CSAM on their platforms.
Aside from describing the Defendants' general business practices,
the Plaintiffs also allege that the Defendants have profited off
child pornography depicting them. Both Plaintiffs, Jane Doe #1 and
Jane Doe #2, allege that they were minors when third parties
created sexually explicit videos of them without their consent and
later posted those videos on the Defendants' websites.
Pursuant to Federal Rule of Civil Procedure 23(b)(2), (b)(3), and
(c)(4), the Plaintiffs also seek to represent all persons who had
pornographic videos posted of them on the Defendants' websites that
were made when they were under 18 years of age.
The Plaintiffs' First Amended Complaint ("complaint") contains two
counts: one alleging that the Defendants knowingly benefitted from
participation in what they knew or should have known was a sex
trafficking venture, in violation of 18 U.S.C. Sections 1591 and
1595 (Count I), and the other that the Defendants received and
distributed child pornography in violation of 18 U.S.C. Section
2252 and 2252A (Count II).
The Plaintiffs request that the Court certifies their proposed
class pursuant to Fed. R. Civ. P. 23, awards damages, and issues
injunctive and equitable relief, including requiring the Defendants
to identify and remove CSAM and implement corporate-wide policies
to prevent continued dissemination of CSAM on their platforms.
The Defendants move to dismiss on several grounds. First, they
argue that all of the Plaintiffs' claims are barred by Section 230
of the Communications Decency Act, 47 U.S.C. Section 230(a), which
affords a provider of interactive computer services immunity from
liability for content posted to its websites by third parties.
The Plaintiffs respond that the Defendants' activities fall within
an exception pursuant to which certain claims under 18 U.S.C.
Sections 1591 and 1595 of the Trafficking Victims Protection
Reauthorization Act do not qualify for Section 230 immunity. They
also argue that because the Defendants materially contribute to the
creation of child pornography, including that of Plaintiffs, they
cannot avail themselves of Section 230 immunity.
Aside from Section 230 immunity, the Defendants also argue that the
Plaintiffs fail to state a claim for relief pursuant to the federal
statutes prohibiting sex trafficking and criminalizing the receipt
or distribution of child pornography. Finally, the Defendants
contend that the Court lacks personal jurisdiction over Plaintiff
Jane Doe #2's claims against them.
II. Discussion
A. Count I: Benefitting from a Sex Trafficking Venture in Violation
of the Trafficking Victims Protection Reauthorization Act, 18
U.S.C. Sections 1591 and 1595
In 2000, Congress passed the Trafficking Victims Protection Act
("TVPA"). The TVPA was the first comprehensive law in the United
States to penalize the full range of human trafficking offenses,
including sex trafficking of children under the age of 18 or sex
trafficking by force, fraud, or coercion. In doing so, the
Trafficking Victims Protection Reauthorization Act ("TVPRA")
created a civil cause of action, codified at 18 U.S.C. Section
1595. That provision of the TVPRA permits a party to bring a civil
claim against perpetrators of sex trafficking and against persons
or entities who, although not the direct perpetrator, knowingly
benefitted from participating in what they knew or should have
known was a sex trafficking venture. Section 1591(a) of the TVPRA
criminalizes sex trafficking of children.
The elements that the Plaintiffs are required to plead to state
their federal trafficking claim at the motion to dismiss stage are
affected by the fact that the Defendants claim that they are immune
from suit under Section 230 of the Communications Decency Act.
Thus, Judge Coogler first analyzes whether the Defendants have
Section 230 immunity before turning to whether the Plaintiffs have
properly stated a TVPRA claim.
1. Immunity Under Section 230 of the Communications Decency Act
First, the Defendants argue that they are immune from suit under
Section 230 of the Communications Decency Act of 1996 ("CDA"), 47
U.S.C. Section 230. Taking the Plaintiffs' allegations as true and
construing the assertions in the light most favorable to them,
Judge Coogler opines that the complaint alleges sufficient facts to
plausibly state a claim that the Defendants are providers of
illegal CSAM content, not merely publishers of third party-created
content. Therefore, the Defendants are not entitled to CDA Section
230 immunity from the Plaintiffs' TVPRA claims.
Finding the Defendants not immune, Judge Coogler turns to the
question of whether the Plaintiffs have sufficiently alleged a
section 1595 claim. Recall that to state such a claim, the
Plaintiffs must plead that the Defendants knowingly participated in
a venture, knowingly received a benefit from their participation,
and knew or should have known that Plaintiffs were victims of sex
trafficking.
2. Whether Plaintiffs have Stated a Plausible TVPRA Claim
Judge Coogler holds that the Plaintiffs have alleged facts showing
that the Defendants participated in a venture by possessing,
reviewing, disseminating, and refusing to remove child pornographic
content, profiting from that content, and sharing those profits
with the Plaintiffs' sex traffickers. The Plaintiffs have alleged
facts from which it can be reasonably inferred that their sex
traffickers had not only tacit agreements with the Defendants --
which is all that is required under section 1595 -- but in fact had
explicit agreements with Defendants, namely their Modelhub and
Content Partner business relationship agreements -- where they
shared in the benefit from the Plaintiffs' exploitation. The
Plaintiffs have sufficiently alleged the first element of their
section 1595 claim.
The Plaintiffs have alleged that Defendants knowingly received a
benefit and something of value from the CSAM by monetizing it and
entering into business partnerships with traffickers, and that
Defendants specifically monetized the sex trafficking content
featuring Plaintiffs specifically, through the profit-sharing
partnership with Plaintiffs' sex traffickers under their Modelhub
and Content Partner programs.
Finally, the Plaintiffs have alleged that the Defendants knew or
should have known that they were the victims of sex trafficking "at
the hands of the users who posted the content." They have more than
sufficiently alleged that the Defendants had constructive knowledge
of the Plaintiffs' sex trafficking.
3. Conclusion
Because the Plaintiffs have established every element of their
civil sex trafficking violation claim under section 1595 of the
TVPRA, the Defendants' motion to dismiss insofar as it relates to
Count I is denied.
B. Count II: Knowing Receipt, Possession, and Distribution of Child
Pornography in Violation of 18 U.S.C. Sections 2252 & 2252A
Count II alleges that the Defendants knowingly received, possessed,
and distributed child pornography depicting class members including
the Plaintiffs, in violation of 18 U.S.C. Sections 2252 and 2252A.
The Plaintiffs further allege that the Defendants duplicated and
distributed new child pornography by creating and hosting new
"thumbnail" images from existing videos of the Plaintiffs and
others.
The Defendants raise two arguments in support of why Count II
should be dismissed: (1) the Plaintiffs have not pleaded facts
establishing that the Defendants received, possessed, or
distributed any videos of them knowing that they contained CSAM;
and (2) even if the Plaintiffs have stated a claim that Defendants
knowingly received, possessed, and distributed child pornography in
violation of 18 U.S.C. Sections 2252 and 2252A, the Defendants are
entitled to immunity for such a claim under Section 230 of the
CDA.
Taking these allegations as true, Judge Coogler that the Plaintiffs
have stated a claim for relief pursuant to 18 U.S.C. Sections 2252
and 2252A. He finds that the Defendants' actions exceed the conduct
that was sufficient to meet the knowledge requirement. This is
enough to plausibly allege that the Defendants knowingly received,
possessed, and distributed child pornography. Indeed, if the
Plaintiffs' allegations are confirmed, the Defendants, through
their ownership and operation of Pornhub and other sites, are no
different than the thousands of individuals who are convicted of
non-production child pornography offenses in the United States each
year.Frankly, if true, the Court would not be surprised to see at
least some of the Defendants prosecuted for such offenses.
Judge Coogler has also deemed the Defendants to be "information
content providers" of CSAM under Section 230. Accordingly, because
the Plaintiffs have plausibly stated a civil claim for the
Defendants' violations of the federal child pornography statutes,
and Defendants are not immune, the Defendants' motion to dismiss
insofar as it concerns the Plaintiffs' 18 U.S.C. Sections 2252 and
2252A claim is due to be denied.
C. Personal Jurisdiction over Defendants as to Jane Doe #2's
Claims
The Defendants move to dismiss Jane Doe #2's claims under Rule
12(b)(2), arguing that the standards for the exercise of general
jurisdiction are not met and, relying on the Supreme Court's
decision in Bristol-Myers Squibb Company v. Superior Court of
California, 137 S.Ct. 1773 (2017), that the Court cannot exercise
specific jurisdiction over them as to Jane Doe #2's claims because
she resides in California and there is no connection between the
conduct alleged and Alabama.
However, Judge Coogler opines that Bristol-Myers has no application
in the case because Jane Doe #2 is asserting federal statutory
claims under 18 U.S.C. Sections 1591, 2252, and 2252A, which,
through the operation of 18 U.S.C. Section 2255, provide for
nationwide service of process and, therefore, the personal
jurisdiction analysis is governed by the Fifth Amendment's Due
Process Clause and whether the Defendants have sufficient contacts
with the United States and not specifically with Alabama. As
pleaded, the complaint supports personal jurisdiction over the
Defendants, based on the nationwide service of process provision
applicable to Jane Doe #2's claims. Accordingly, the Defendants'
motion to dismiss insofar as it is based upon lack of personal
jurisdiction is denied.
III. Conclusion
For the foregoing reasons, Judge Coogler denied the Defendants'
motion to dismiss.
A full-text copy of the Court's Feb. 9, 2022 Memorandum of Opinion
& Order is available at https://tinyurl.com/yuec6je9 from
Leagle.com.
MH SUB I: Lebakken Files Suit in N.D. Georgia
---------------------------------------------
A class action lawsuit has been filed against MH Sub I, LLC. The
case is styled as Debra Lebakken, individually and on behalf of all
others similarly situated v. MH Sub I, LLC, Case No.
1:22-cv-00644-TWT (N.D. Ga., Feb. 15, 2022).
The nature of suit is stated as Other P.I. for Stored
Communications Act.
MH Sub I, LLC doing business as Internet Brands --
http://www.internetbrands.com/-- is an American new media company
based in El Segundo, California, United States, that operates
online media, community, and e-commerce sites in vertical
markets.[BN]
The Plaintiff is represented by:
Alyssa Bernadette Baskam, Esq.
BEASLEY ALLEN LAW FIRM
2839 Paces Ferry Road, Suite 400
Atlanta, GA 30339
Phone: (404) 751-1162
Email: alyssa.baskam@beasleyallen.com
- and -
H. Clay Barnett, Esq.
James Mitchell Williams, Esq.
W. Daniel Miles, III, Esq.
BEASLEY ALLEN CROW METHVIN PORTIS & MILES-AL
P.O. Box 4160
218 Commerce Street
Montgomery, AL 36103-4160
Phone: (334) 269-2343
Email: Clay.Barnett@BeasleyAllen.com
Mitch.Williams@beasleyallen.com
Dee.Miles@BeasleyAllen.com
- and -
Joshua D. Arisohn, Esq.
Philip L. Fraietta, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Phone: (646) 837-7150
Fax: (212) 989-9163
Email: pfraietta@bursor.com
MINI MANI MOO: Abreu Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Mini Mani Moo L.L.C.
The case is styled as Luigi Abreu, individually, and on behalf of
all others similarly situated v. Mini Mani Moo L.L.C., Case No.
1:22-cv-01332-PAE-SLC (S.D.N.Y., Feb. 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Mini Mani Moo -- https://minimanimoo.com/ -- supplies professional
nail art products & nail polish with SHIPPING worldwide.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
NISSAN NORTH: Faces Bereda Suit Over Defective Braking System
-------------------------------------------------------------
MICHELLE BEREDA, ANGELENE HOEFFKEN, and SCOTT NERI, individually
and on behalf of all others similarly situated, Plaintiffs v.
NISSAN NORTH AMERICA, INC., and NISSAN MOTOR CO., LTD., Defendants,
Case No. 3:22-cv-00098 (M.D. Tenn., February 15, 2022) is a class
action against the Defendants for fraudulent omission, breach of
express warranty, breach of implied warranty, unjust enrichment,
and violations of the Magnuson-Moss Warranty Act, the California's
Consumer Legal Remedies Act, the California's Unfair Competition
Law, the North Carolina Unfair and Deceptive Trade Practices Act,
and the Ohio Consumer Sales Practices Act.
The case arises from the Defendants' alleged design, manufacturing,
and marketing of Nissan brand light vehicles with defective Forward
Emergency Braking (FEB) system. The FEB defect causes, among other
things, (1) the Class vehicles to detect nonexistent obstacles,
thereby automatically triggering the brakes and causing the Class
vehicles to abruptly slow down or come to a complete stop with no
actual need to do so, and/or (2) the FEB system to deactivate
itself, thereby distracting the driver and rendering the FEB system
disabled and useless. The Defendants failed to disclose the FEB
defect to consumers, despite their knowledge that the Class
vehicles were defective and not fit for their intended purpose of
providing consumers with safe and reliable transportation at the
time of the sale and thereafter. Had the Plaintiffs and other Class
members known about the FEB defect, they would not have purchased
and/or leased the Class vehicles or would have paid less for them,
says the suit.
Nissan North America, Inc. is an automobile manufacturer, with its
principal place of business in Franklin, Tennessee.
Nissan Motor Co., Ltd. is the parent company Nissan North America,
Inc., headquartered in Yokohama, Japan. [BN]
The Plaintiff is represented by:
J. Gerard Stranch, IV, Esq.
Benjamin A. Gastel, Esq.
BRANSTETTER, STRANCH & JENNINGS, PLLC
The Freedom Center
223 Rosa L. Parks Avenue, Suite 200
Nashville, TN 37203
Telephone: (615) 254-8801
Facsimile: (615) 255-5419
E-mail: gerards@bsjfirm.com
beng@bsjfirm.com
- and –
Alyson Steele Beridon, Esq.
BRANSTETTER, STRANCH & JENNINGS, PLLC
425 Walnut St. STE 2315
Cincinnati, OH 45202
Telephone: (513) 381-2224
Facsimile: (615) 255-5419
E-mail: alysonb@bsjfirm.com
OFFSHORE PROCESS: Underpays Quality Control Specialists, Labbe Says
-------------------------------------------------------------------
LAWRENCE LABBE, individually and on behalf of all others similarly
situated, Plaintiff v. OFFSHORE PROCESS SERVICES, INC., Defendant,
Case No. 2:22-cv-00404-CJB-DMD (E.D. La., February 16, 2022) is a
class action against the Defendant for its failure to compensate
the Plaintiff and similarly situated quality control specialists
overtime pay for all hours worked in excess of 40 hours in a
workweek in violation of the Fair Labor Standards Act.
Mr. Labbe worked for the Defendant as a quality control specialist
from July 1, 2018 until November 1, 2019.
Offshore Process Services, Inc. is a provider of engineering,
project management and client representation services,
headquartered in Ponchatoula, Louisiana. [BN]
The Plaintiff is represented by:
Philip Bohrer, Esq.
Scott E. Brady, Esq.
BOHRER BRADY, LLC
8712 Jefferson Highway, Suite B
Baton Rouge, LA 70809
Telephone: (225) 925-5297
Facsimile: (225) 231-7000
E-mail: phil@bohrerbrady.com
scott@bohrerbrady.com
- and –
Gabriel A. Assaad, Esq.
Matthew S. Yezierski, Esq.
McDONALD WORLEY, P.C.
1770 St. James St., Suite 100
Houston, TX 77056
Telephone: (713) 523-5500
Facsimile: (713) 523-5501
E-mail: gassaad@mcdonaldworley.com
matt@mcdonaldworley.com
- and –
Galvin Kennedy, Esq.
KENNEDY LAW FIRM, LLP
2925 Richmond Ave., Ste. 1200
Houston, TX 77098
Telephone: (713) 425-6445
Facsimile: (888) 389-9317
E-mail: Galvin@KennedyAttorney.com
OLIN CORPORATION: Underpays Process Operators, Cohea Suit Alleges
-----------------------------------------------------------------
JOHN COHEA, individually and on behalf of all others similarly
situated, Plaintiff v. OLIN CORPORATION, Defendant, Case No.
3:22-cv-00055 (S.D. Tex., February 15, 2022) is a class action
against the Defendant for its failure to compensate the Plaintiff
and similarly situated process operators overtime pay for all hours
worked in excess of 40 hours in a workweek in violation of the Fair
Labor Standards Act.
The Plaintiff has been employed by the Defendant as a process
operator in Brazoria County, Texas from January 9, 2015 to the
present.
Olin Corporation is a manufacturer of ammunition and chemical
compounds, which maintains offices in Brazoria County, Texas. [BN]
The Plaintiff is represented by:
Charles L. Scalise, Esq.
Daniel B. Ross, Esq.
ROSS SCALISE LAW GROUP
1104 San Antonio Street
Austin, TX 78701
Telephone: (512) 474-7677
Facsimile: (512) 474-5306
E-mail: Charles@rosslawpc.com
ONEOK FIELD: Dinsmore Sues Over Unpaid Interest on Late Payments
----------------------------------------------------------------
MARVIN B. DINSMORE and SHERIDAN DOWNEY, III, as Administrators of
the Estate of David D. Dinsmore and the Estate of Margaret D.
Dinsmore, on behalf of themselves and all others similarly
situated, Plaintiffs v. ONEOK FIELD SERVICES COMPANY, L.L.C.,
Defendant, Case No. 4:22-cv-00073-GKF-CDL (N.D. Okla., February 16,
2022) is a class action against the Defendants for breach of
statutory obligation to pay interest under the Oklahoma's
Production Revenue Standards Act.
The case arises from the Defendant's alleged failure to
automatically pay interest on all late payments of oil-and-gas
proceeds to the Plaintiffs and similarly situated owners of
oil-and-gas properties. The Defendant only pays interest to owners
who demand it. As a result, the Plaintiff and Class members demand
the Defendant to pay oil-and-gas proceeds according to the
applicable statutory time periods, says the suit.
Oneok Field Services Company, L.L.C. is an energy services
provider, with its principal place of business in Tulsa, Oklahoma.
[BN]
The Plaintiffs are represented by:
Reagan E. Bradford, Esq.
Ryan K. Wilson, Esq.
BRADFORD & WILSON PLLC
431 W. Main Street, Suite D
Oklahoma City, OK 73102
Telephone: (405) 698-2770
E-mail: reagan@bradwil.com
ryan@bradwil.com
- and –
James U. White, Jr., Esq.
JAMES U. WHITE, JR., INC.
P.O. Box 54783
Oklahoma City, OK 73154
Telephone: (405) 842-7545
E-mail: jwhite@wcgflaw.com
OPSEC SECURITY: Hanigan Sues Over Brand Analysts' Unpaid Overtime
-----------------------------------------------------------------
EMILY HANIGAN, individually and on behalf of all others similarly
situated, Plaintiff v. OPSEC SECURITY, INC., and OPSEC ONLINE, LLC,
Defendants, Case No. 1:22-cv-00064-REP (D. Idaho, February 16,
2022) is a class action against the Defendants for their failure to
compensate the Plaintiff and similarly situated brand analysts
overtime pay for all hours worked in excess of 40 hours in a
workweek in violation of the Fair Labor Standards Act.
The Plaintiff worked for the Defendants as a brand analyst from
2014 until July 2021.
Opsec Security, Inc. is a provider of integrated online protection
and on-product authentication solutions, with its principal place
of business located at 1857 Colonial Village Lane, Lancaster,
Pennsylvania.
Opsec Online, LLC is a subsidiary of OpSec Security, Inc., with its
principal place of business located at 3540 East Longwing Lane,
Suite 300, Meridian, Idaho. [BN]
The Plaintiff is represented by:
Erika Birch, Esq.
T. Guy Hallam, Jr., Esq.
STRINDBERG SCHOLNICK BIRCH HALLAM HARSTAD THORNE
1516 W Hays St.
Boise, ID 83702
Telephone: (208) 336-1788
Facsimile: (208) 344-7980
E-mail: erika@idahojobjustice.com
guy@idahojobjustice.com
- and –
Matthew C. Helland, Esq.
NICHOLS KASTER, PLLP
235 Montgomery St., Suite 810
San Francisco, CA 94104
Telephone: (415) 277-7235
Facsimile: (415) 277-7238
E-mail: helland@nka.com
- and –
Caroline E. Bressman, Esq.
NICHOLS KASTER, PLLP
4700 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
Telephone: (612) 256-3200
Facsimile: (612) 338-4878
E-mail: cbressman@nka.com
- and –
Benjamin L. Davis, III, Esq.
THE LAW OFFICES OF PETER T. NICHOLL
36 South Charles Street, Suite 1700
Baltimore, MD 21201
Telephone: (410)907-3957
E-mail: bdavis@nicholllaw.com
OREGON: Sykes Action Stayed Pending Resolution in Maney Case
------------------------------------------------------------
In the class action lawsuit captioned as BRANDON SYKES v. ERIN
REYES et al., Case No. 2:21-cv-01871-SB (D. Or.), the Hon. Judge
Stacie F. Beckerman entered an order granting Sykes's motion to
stay, and staying this action pending resolution of class
certification in the Maney case.
The Court concludes that staying this litigation will conserve
judicial resources by avoiding duplicative litigation, and a stay
will not unduly prejudice Sykes or the Defendants.
The Court finds that on balance, the relevant factors weigh in
favor of staying this action pending resolution of class
certification in Maney. First, there is substantial overlap between
the parties and legal issues to resolve in the Maney case and this
case, as both actions include Section 1983 claims alleging that
Oregon Department of Corrections (ODOC) officials acted with
deliberate indifference to AICs’ health and safety by failing
adequately to protect them from COVID-19. A stay will conserve
judicial resources by avoiding duplicative litigation.
Brandon Sykes, a self-represented litigant in the custody of the
ODOC, filed this civil rights action under 42 U.S.C. section 1983
against Erin Reyes, Superintendent of the Two Rivers Correctional
Institution (TRCI), and several ODOC employees, alleging violations
of his Eighth Amendment rights.
Sykes is an adult in custody ("AIC") of ODOC and is currently
housed at TRCI. On December 27, 2021, Sykes filed this action
against Defendants, alleging that the Defendants knowingly exposed
him to COVID-19 and that ODOC's failure adequately to respond to
COVID-19 violates his Eighth Amendment rights.
A copy of the Court's order dated Feb. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3rRFgii at no extra charge.[CC]
PERKIOMEN VALLEY SCHOOL: Appeals Prelim. Injunction in ADA Case
---------------------------------------------------------------
PERKIOMEN VALLEY SCHOOL DISTRICT, a Pennsylvania Governmental
Entity, filed an appeal from a court ruling entered in the lawsuit
entitled JOHN DOE 1 and JANE DOE 1, in their own capacity and as
parents of CHILD DOE 1, JOHN DOE 2 and JANE DOE 2, in their own
capacity as parents of CHILD DOE 2, JANE DOE 3, in her own capacity
and as a parent of CHILD DOE 3 and on behalf of those similarly
situated, Plaintiffs v. PERKIOMEN VALLEY SCHOOL DISTRICT, a
Pennsylvania governmental entity, JASON SAYLOR, MATTHEW DORR, ROWAN
KEENAN, DON FOUNTAIN, KIM MARES, REENA KOLAR, SARAH EVANS-BROCKETT,
LAURA WHITE, and TAMMY CAMPLI, all Individual elected officers sued
in their official capacity as members of the BOARD OF SCHOOL
DIRECTORS OF THE PERKIOMEN VALLEY SCHOOL DISTRICT, a Pennsylvania
elected legislative body, Defendants, Case No. 2-22-cv-00287, in
the United States District Court for the Eastern District of
Pennsylvania.
The lawsuit is brought by children with disabilities and their
parents, on behalf of themselves and a putative class of similarly
situated children, in response to the Perkiomen Valley School
Board's decision to move during the COVID-19 pandemic from
universal indoor masking to optional masking in the school
district. The Plaintiffs filed a Complaint on January 21, 2022
alleging violations of the Americans with Disabilities Act and the
Rehabilitation Act of 1973. A motion for a temporary restraining
order followed on January 23, which was granted by the Court.
On January 28, 2022, the Plaintiffs filed a motion for preliminary
injunction which was also granted by the Court on February 7,
2022.
The Defendant are now taking an appeal from this ruling in their
appellate case captioned Perkiomen Valley School District, et al.
v. John and Jane Doe 1, et al., Case No. 22-1287, in the United
States Court of Appeals for the Third Circuit, filed on February
16, 2022.[BN]
Defendant-Appellant PERKIOMEN VALLEY SCHOOL DISTRICT, a
Pennsylvania Governmental Entity, is represented by:
Brian E. Subers, Esq.
FOX ROTHSCHILD
300 Sentry Pkwy, Suite 200
Blue Bell, PA 19422
Telephone: (610) 801-2076
Plaintiffs-Appellees JOHN AND JANE DOE 1, in their own capacity as
parents of Child Doe 1; JOHN AND JANE DOE 2, in their own capacity
and as parents of Child Doe 2; and JANE DOE 3, in her own capacity
and as parent of Child Doe 3 and on behalf of those similarly
situated, are represented by:
Carmen A. De Gisi, Esq.
DE GISI LAW GROUP
462 Germantown PIke
Lafayette Hill, PA 19444
Telephone: (610) 897-8721
E-mail: cdegisilaw@gmail.com
- and -
Luke T. Pepper, Esq.
BURG SIMPSON ELDREDGE HERSH & JARDINE
40 Inverness Drive East
Englewood, CO 80112
Telephone: (267) 626-7546
POINT PICKUP: Underpays Delivery Providers, Flores Suit Alleges
---------------------------------------------------------------
JEAN FLORES, individually and on behalf of all others similarly
situated, Plaintiff v. POINT PICKUP TECHNOLOGIES, INC. and POINT
PICKUP ENTERPRISES, INC., Defendants, Case No.
1:22-cv-00193-JLT-SKO (E.D. Cal., February 15, 2022) is a class
action against the Defendants for violations of the California
Labor Code and the California's Business and Professions Code
including unlawful business practices, intentional interference
with advantageous relations, conversion, unjust enrichment, failure
to properly compensate for rest and recovery periods, failure to
pay for all hours worked, failure to pay minimum wage for all hours
worked, failure to pay overtime and/or double time wages, failure
to authorize and permit and/or make available meal and rest
periods, failure to reimburse business expenditures, and failure to
provide timely and accurate itemized wage statements.
The Plaintiff has been employed as a delivery provider by the
Defendants in Sanger, California and Dinuba, California since
approximately August 2020.
Point Pickup Technologies, Inc. is a provider of delivery services,
with its principal place of business in Stamford, Connecticut.
Point Pickup Enterprises, Inc. is a provider of delivery services,
with its principal place of business in Greenwich, Connecticut.
[BN]
The Plaintiff is represented by:
Carolyn Hunt Cottrell, Esq.
Ori Edelstein, Esq.
Andrew Weaver, Esq.
Philippe M. Gaudard, Esq.
SCHNEIDER WALLACE COTTRELL KONECKY LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
Facsimile: (415) 421-7105
E-mail: ccottrell@schneiderwallace.com
oedelstein@schneiderwallace.com
aweaver@schneiderwallace.com
pgaudard@schneiderwallace.com
PULSE BIOSCIENCES: Ngosiok Sues Over 34% Decline of Stock Price
---------------------------------------------------------------
VIRON BRYAN NGOSIOK, individually and on behalf of all others
similarly situated, Plaintiff v. PULSE BIOSCIENCES, INC., DARRIN
UECKER, and SANDRA A. GARDINER, Defendants, Case No. 3:22-cv-00959
(N.D. Cal., February 16, 2022) is a class action against the
Defendants for violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934.
According to the complaint, the Defendants made materially false
and/or misleading statements, as well as failed to disclose
material adverse facts about Pulse's business, operations, and
prospects to trade Pulse securities at artificially inflated prices
between January 12, 2021 and February 7, 2022. Specifically, the
Defendants failed to disclose to investors: (1) that the
investigational device exemption (IDE) study evaluating the use of
the CellFX System to treat sebaceous hyperplasia lesions failed to
meet its primary endpoints; (2) that, as a result, there was a
substantial risk that the U.S. Food and Drug Administration (FDA)
would reject Pulse's 510(k) submission seeking to expand the label
for the CellFX System to treat sebaceous hyperplasia lesions; and
(3) that, as a result of the foregoing, the Defendants' positive
statements about the company's business, operations, and prospects
were materially misleading and/or lacked a reasonable basis.
When the truth emerged, Pulse's share price fell $3.74, or over 34
percent, to close at $7.12 per share on February 8, 2022, on
unusually heavy trading volume.
Pulse Biosciences, Inc. is a bioelectric medicine company, with its
principal executive offices located in Hayward, California. [BN]
The Plaintiff is represented by:
Robert V. Prongay, Esq.
Charles H. Linehan, Esq.
Pavithra Rajesh, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
E-mail: rprongay@glancylaw.com
clinehan@glancylaw.com
prajesh@glancylaw.com
QSR MANAGEMENT: Faces Bailon Wage-and-Hour Suit in E.D.N.Y.
-----------------------------------------------------------
ADRIANA JARAMILLO BAILON, individually and on behalf of all others
similarly situated, Plaintiff v. QSR MANAGEMENT LLC, HYLAN-QUINTARD
LLC, ROSSVILLE WOODROW LLC, AMBOY-CLARKE LLC, ANTON NADER, MOHAMMAD
LNU, and HIRAM LNU, Defendants, Case No. 1:22-cv-00879 (E.D.N.Y.,
February 16, 2022) is a class action against the Defendants for
violations of the Fair Labor Standards Act, the New York Labor Law,
and the New York City Human Rights Law including failure to pay
minimum wages, failure to pay overtime wages, failure to provide
accurate wage notice, failure to pay spread-of-hours premiums,
failure to accommodate sick days, and unlawful discrimination based
on perceived immigration status.
Plaintiff Bailon was employed as a counterperson and stocker by the
Defendants from 2015 until October 2, 2021.
QSR Management LLC is an owner and operator of a Dunkin' Donuts
franchise shop in New York.
Hylan-Quintard LLC is the owner of a Dunkin' Donuts shop located at
1300 Hylan Boulevard, Staten Island, New York.
Rossville Woodrow LLC is the owner of a Dunkin' Donuts shop located
at 655 Rossville Avenue, Staten Island, New York.
Amboy-Clarke LLC is the owner of a Dunkin' Donuts shop located at
3291 Amboy Road, Staten Island, New York. [BN]
The Plaintiff is represented by:
Ria Julien, Esq.
MIRER MAZZOCCHI & JULIEN, PLLC
1 Whitehall St., 16th Floor
New York, NY 10004
Telephone: (212) 231-2235
E-mail: rjulien@mmsjlaw.com
SBK DELIVERY: Joint Stipulation of Conditional Class Cert. OK'd
---------------------------------------------------------------
In the class action lawsuit captioned as Timothy M Miller II, v.
SBK Delivery, LLC, Case No. 2:21-cv-04744-MHW-EPD (S.D. Ohio), the
Hon. Judge Michael H. Watson entered an order granting the the
parties' stipulation of conditional class certification and
proposed notice.
SBK Delivery is a licensed and bonded freight shipping and trucking
company running freight hauling business from Canal Winchester,
Ohio.
A copy of the Court's order dated Feb. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3LxbVBn at no extra charge.[CC]
SCOTT ASNER: Appeals 4th Circuit Ruling in Hengle to Supreme Court
------------------------------------------------------------------
Defendants SCOTT ASNER, et al., filed with the Supreme Court of
United States a petition for a writ of certiorari in the matter
styled SCOTT ASNER, et al., Petitioners v. GEORGE HENGLE, et al.,
Respondents, Case No. 21-1132.
Response is due on March 18, 2022.
Mr. Asner, et al., petition for a writ of certiorari to review the
judgment of the United States Court of Appeals for the Fourth
Circuit in the cases, GEORGE HENGLE; SHERRY BLACKBURN; WILLIE ROSE;
ELWOOD BUMBRAY; TIFFANI MYERS; STEVEN PIKE; SUE COLLINS; LAWRENCE
MWETHUKU, on behalf of themselves and all individuals similarly
situated, Plaintiffs-Appellees v. SHERRY TREPPA, Chairperson of the
Habematolel Pomo of Upper Lake Executive Council, in her official
capacity; TRACEY TREPPA, Vice-Chairperson of the Habematolel Pomo
of Upper Lake Executive Council, in her official capacity; KATHLEEN
TREPPA, Treasurer of the Habematolel Pomo of Upper Lake Executive
Council, in her official capacity; CAROL MUNOZ, Secretary of the
Habematolel Pomo of Upper Lake Executive Council, in her official
capacity; JENNIFER BURNETT, Member-At-Large of the Habematolel Pomo
of Upper Lake Executive Council, in her official capacity; AIMEE
JACKSON-PENN, Member-At-Large of the Habematolel Pomo of Upper Lake
Executive Council, in her official capacity; VERONICA KROHN,
Member-At-Large of the Habematolel Pomo of Upper Lake Executive
Council, in her official capacity, Defendants-Appellants, and SCOTT
ASNER; JOSHUA LANDY, Defendants; et al., Case Nos. 20-1062,
20-1063, 20-1358, 20-1359. The Fourth Circuit affirmed the district
court's order denying a motion to compel arbitration in the cases.
The question presented is: Can a federal court refuse to enforce
the delegation clause of an arbitration agreement on the ground
that a choice-of-law provision applicable to the arbitration
agreement as a whole prospectively waives federal rights?
As reported in the Class Action Reporter on November 30, 2021, the
U.S. Court of Appeals for the Fourth Circuit affirmed the district
court's judgment on each of the four issues raised in the
interlocutory appeal, including denial of arbitration bids in the
mentioned cases.
The named Plaintiffs in the case, all Virginia consumers, received
short-term loans from online lenders affiliated with a federally
recognized Native American tribe. Eventually, the borrowers
defaulted and brought a putative class action against tribal
officials and two non-members affiliated with the tribal lenders to
avoid repaying their debts, which they alleged violated Virginia
and federal law.
The Habematolel Pomo of Upper Lake (the Tribe) is a federally
recognized Native American tribe in northern California. Through
its Tribal Executive Council, the Tribe started an online lending
business consisting of four incorporated lending portfolios: Golden
Valley Lending, Inc., Silver Cloud Financial, Inc., Mountain Summit
Financial, Inc., and Majestic Lake Financial, Inc. (collectively,
the Tribal Lenders). The Tribal Lenders were allegedly operated by
non-tribal companies owned by non-tribal Defendants Scott Asner and
Joshua Landy on non-tribal land in Overland Park, Kansas.
Eventually, Upper Lake Processing Service, Inc. (ULPS) -- a tribal
entity -- acquired the Tribal Lenders, although ULPS allegedly
continues to operate out of Overland Park, Kansas, employing
non-tribal employees and distributing most of its revenues to
non-tribal entities and individuals.
After receiving their loans from the Tribal Lenders, the
Plaintiffs, on behalf of themselves and a putative class of
similarly situated individuals, brought suit in the U.S. District
Court for the Eastern District of Virginia against Asner, Landy,
and the members of the Tribal Executive Council in their official
capacity (the Tribal Officials), alleging violations of RICO and
Virginia usury and consumer finance laws. From the Tribal
Officials, Plaintiffs sought only prospective declaratory and
injunctive relief. From Asner and Landy, the Plaintiffs sought
prospective and monetary relief.
In response, all the Defendants moved to compel arbitration.
Alternatively, both the tribal and non-tribal Defendants moved to
dismiss Plaintiffs' claims against them on numerous grounds. As
relevant to this appeal, all the Defendants argued that Tribal law,
rather than Virginia law, applied to the loan agreements, therefore
the interest rates were not usurious and the loans were not
unlawful debts for purposes of RICO. The Tribal Officials
separately asserted that sovereign immunity precluded the
Plaintiffs' claims against them and that, in any event, RICO did
not permit private plaintiffs to seek prospective injunctive
relief.
The district court denied the Defendants' motions to compel
arbitration. The court acknowledged that the arbitration provision
delegates threshold questions of arbitrability to the arbitrator,
but it found the delegation clause unenforceable because the
arbitration provision prospectively waives federal and state law
defenses to arbitrability. Assessing the validity of the
arbitration provision as a whole, the court concluded that it
similarly accomplished an impermissible waiver of otherwise
available statutory claims, including RICO claims. Because it found
the offending provisions inseverable, the district court held the
arbitration provision unenforceable in its entirety.[BN]
Defendants-Petitioners Scott Asner, et al., are represented by:
Adam G. Unikowsky, Esq.
Matthew E. Price, Esq.
JENNER & BLOCK LLP
1099 New York Ave., NW Suite 900
Washington, DC 20001
Telephone: (202) 639-6000
E-mail: aunikowsky@jenner.com
SOUTHWESTERN & PACIFIC: Settlement in Arredondo Suit Initially OK'd
-------------------------------------------------------------------
In the class action lawsuit captioned as ALICIA ARREDONDO v.
SOUTHWESTERN & PACIFIC SPECIALTY FINANCE, INC., dba Check 'N Go of
California, Case No. 1:18-cv-01737-DAD-SKO (E.D. Cal.), the Hon.
Judge entered an order:
1. granting the plaintiff's motion for preliminary approval
of class action settlement;
2. certifying the estimated 690 individuals proposed class
for settlement purposes:
"Class Member means the named Plaintiff in this Action and
any non-exempt employee who was employed by Defendant
within the State of California at any point from February
25, 2018 to date of preliminary approval. Class Member
does not include any individuals who already have resolved
the claims asserted in the Action, whether by settlement
or adjudication, or any of the 33 individuals who have
filed, or were prepared to file by and through Class
Counsel, demands for individual arbitration. The group of
all Class Members meeting the definition above are
collectively referred to as the "Settlement Class."
3. appointing Plaintiff's counsel, Joseph D. Sutton, Marco A.
Palau, and Eric S. Trabucco of the Advocates for Worker
Rights LLP firm, as class counsel for settlement purposes;
4. appointing the named plaintiff, Alicia Arredondo, as class
representative for settlement purposes; amd
5. approving Phoenix Class Action Administration Solutions as
the settlement administrator;
-- Settlement Terms
Under the parties' settlement agreement, the defendant
will pay a gross settlement amount of $1,250,000.00
allocated as follows:
(1) up to $416,666.25 (or 33.33%) for attorneys' fees
and up 17 to $20,000.00 (or 1.6%) for attorneys'
costs;
(2) $10,000.00 (or 0.8%) for an incentive award for the
representative plaintiff;
(3) $100,000.00 (or 8.0%) in civil PAGA penalties; and
(4) an estimated $10,500.00 (or 0.84%) for settlement
administration costs.
Southwestern & Pacific was founded in 2005. The Company's line of
business includes performing functions related to depository
banking.
A copy of the Court's order dated Feb. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3Bjh2Aw at no extra charge.[CC]
STABLEVIEW ASSET: Securities Suit Dropped After Shares Rebound
--------------------------------------------------------------
James Langton at investmentexecutive.com reports that a proposed
class action over losses suffered by clients of fund manager and
exempt market dealer Stableview Asset Management Inc. has been
scrapped after the investors' losses essentially evaporated.
The Ontario Superior Court of Justice granted a motion from the
plaintiff in a proposed class action against the receiver for
Stableview, its various funds and the firm's founder, Colin Fisher,
seeking to dismiss the action.
According to the decision, the lawsuit initially sought to recover
an estimated $7.9 million in damages due to alleged mismanagement
of investments.
"The crux of the claim is that the defendants caused the class
members' money to become highly concentrated in debentures issued
by Clarocity, a penny stock technology company," the court noted.
Clarocity was put into receivership in 2019, and was ultimately
acquired by another tech company, iLookabout, for shares, warrants,
and convertible debentures of iLookabout.
"Under the terms of the transaction, the shares were subject to a
standstill agreement, and Stableview's ability to sell the
iLookabout shares was very restricted," the court noted.
However, since the class action was filed, the iLookabout shares
have risen, "such that it is likely that the losses of the
plaintiff and putative class members have been made good," the
court noted.
Additionally, the plaintiff determined that Stableview doesn't have
insurance that would cover the claims set out in the lawsuit.
As a result, the plaintiff sought to dismiss the claim without
costs.
The court approved the motion, noting that when the claim was
filed, it appeared that investors had suffered "substantial
losses". However, they now appear to have suffered no losses.
"There is no utility in continuing the action," the court
concluded.
The Ontario Securities Commission sought a receiver for Stableview
in June 2020, and it later filed an enforcement action alleging
that the firm (and Fisher) violated securities rules by over
concentrating clients' accounts in Clarocity stock.
None of the allegations have been proven. Fisher has "vigourously
denied" the regulators' allegations, and pledged to defend himself
against them.
The next appearance in the OSC proceeding is scheduled for March 8.
[GN]
STATE FARM: Revised Scheduling Order Entered in Velazquez Suit
--------------------------------------------------------------
In the class action lawsuit captioned as JUDITH VELAZQUEZ, et al.
v. STATE FARM FIRE AND CASUALTY COMPANY, Case No.
2:19-cv-03128-NIQA (E.D. Pa.), the Hon. Judge Nitza I. Quinones
Alejandro granting the Plaintiffs' motion to extend deadlines and
modification of the scheduling order as follows:
1. All fact and class discovery April 11, 2022
shall be completed by:
2. The Plaintiffs' expert reports May 11, 2022
shall be provided by:
3. Any motion for class Aug. 9, 2022
certification under Rule 23
shall be filed by:
4. Any dispositive motions shall Sept. 8, 2022
be filed by:
5. A final pretrial conference will Dec. 6, 2022
be held on or about:
Prior to the completion of discovery, the parties may request a
referral to the Honorable Magistrate Judge Lynne A. Sitarski,
United States District Court, to schedule a settlement conference.
Counsel, the parties, and/or persons with full settlement authority
must appear at the conference unless excused in advance by
Magistrate Judge Sitarski, Judge Alejandro says.
State Farm operates as an insurance company.
A copy of the Court's order dated Feb. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3sA7VY0 at no extra charge.[CC]
SUNPOWER CORP: Jaszczyszyn Sues Over 16.9% Drop of Stock Price
--------------------------------------------------------------
PIOTR JASZCZYSZYN, individually and on behalf of all others
similarly situated, Plaintiff v. SUNPOWER CORPORATION, PETER
FARICY, and MANAVENDRA S. SIAL, Defendants, Case No. 3:22-cv-00956
(N.D. Cal., February 16, 2022) is a class action against the
Defendants for violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934.
According to the complaint, the Defendants made materially false
and/or misleading statements, as well as failed to disclose
material adverse facts about SunPower's business, operations, and
prospects to trade SunPower securities at artificially inflated
prices between August 3, 2021 and January 20, 2022. Specifically,
the Defendants failed to disclose to investors: (1) that certain
connectors used by SunPower suffered from cracking issues; (2)
that, as a result, the company was reasonably likely to incur costs
to remediate the faulty connectors; (3) that, as a result of the
foregoing, SunPower's financial results would be adversely
impacted; and (4) that, as a result of the foregoing, the
Defendants' positive statements about the company's business,
operations, and prospects were materially misleading and/or lacked
a reasonable basis.
When the truth emerged, SunPower's share price fell $3.22, or 16.9
percent, to close at $15.80 per share on January 21, 2022, on
unusually heavy trading volume.
SunPower Corporation is a solar energy company, with its principal
executive offices located in San Jose, California. [BN]
The Plaintiff is represented by:
Robert V. Prongay, Esq.
Charles H. Linehan, Esq.
Pavithra Rajesh, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
E-mail: rprongay@glancylaw.com
clinehan@glancylaw.com
prajesh@glancylaw.com
- and –
Howard G. Smith, Esq.
LAW OFFICES OF HOWARD G. SMITH
3070 Bristol Pike, Suite 112
Bensalem, PA 19020
Telephone: (215) 638-4847
Facsimile: (215) 638-4867
SUTTER HEALTH: Antitrust Suit With 3 Million Plaintiffs Seeks $1.2B
-------------------------------------------------------------------
sanfrancisco.cbslocal.com reports that a lawsuit over high health
care bills filed on behalf of more than 3 million employers and
people seeks as much as $1.2 billion from a large Northern
California health system in an antitrust class-action trial getting
underway.
Plaintiffs in the lawsuit allege in court documents that Sutter
Health abused its market power and "caused enormous adverse
economic impacts" by discouraging patients from using lower-cost
insurance and lower-cost hospitals.
Sutter Health said in a statement that it looks forward to
"demonstrating that in Northern California's highly competitive
market, Sutter's integrated healthcare network provides
high-quality care that creates efficiencies, drives down total cost
of care and benefits the diverse communities we serve."
The lawsuit claims Sutter used its market power for inpatient
services in seven mostly rural Northern California areas where it
is the only or dominant hospital to bind insurers in four other
communities where it has competition.
That allowed Sutter to overcharge for its own services, the lawsuit
alleged, and caused nearly $400 million in insurance premium
overcharges to the plaintiffs between 2011-2017. Five companies
provided the health insurance: Anthem Blue Cross, Blue Shield of
California, Aetna, United Healthcare, and Health Net.
The law allows triple damages if the plaintiffs win against Sutter
Health, meaning a potential award of $1.2 billion.
The named plaintiffs are four people who paid health insurance
premiums and two companies that paid premiums for their employees
since 2011, but the class includes any individuals or companies in
the same position across much of Northern California.
The plaintiffs' attorneys estimate that includes 3 million patients
and employers. The system operates 24 hospitals with more than
12,000 doctors and 16,000 nurses.
It's the second such lawsuit filed against Sutter Health.
The health system two years ago paid different plaintiffs $575
million to settle similar claims that it used anti-competitive
practices to artificially increase patients' costs and agreed then
in a separate settlement with the state to accept a court-approved
monitor for 10 years to make sure it no longer works through
insurance companies to increase patients' costs.
California's attorney general alleged then that Sutter used its
market power to block insurance companies from using incentives to
steer patients to cheaper health care providers.
Critics said that practice made it more difficult for patients to
use Sutter's lower-priced competitors, though the Sacramento-based
nonprofit denied the allegations and did not admit wrongdoing.
The 2019 settlement also prohibited Sutter from continuing what
state officials called an "all or nothing" approach that required
insurance companies to include all of the health system's hospitals
in their provider networks even if it didn't make financial sense.
And it increased pricing transparency while limiting what Sutter
could charge for out-of-network procedures.
In the current case, U.S. Magistrate Judge Laurel Beeler in San
Francisco found in favor of the case going to trial, stating in
part that "the contracts were systemwide and required health plans
to include Sutter inpatient services in the (noncompetitive)
markets."
A jury will decide if that was to force higher prices that were
passed on to patients through higher premiums, the judge ruled.
Sutter said there is no evidence that it worked to maintain its
monopoly power in the seven communities where it dominates. And
systemwide volume discounting in turn lowers prices, the company
said.
"The indisputable evidence shows that Sutter did not violate the
antitrust laws but sought only to properly give effect to a valid
volume discount," Sutter said in court papers.
State officials and consumer advocates largely blamed Sutter's
previous practices for Northern California residents typically
paying health insurance premiums that were $3,000 higher than in
Southern California at the time. A typical inpatient procedure in
the northern part of the state might have cost $90,000 more than in
Southern California.
Sutter has argued that insurance companies were to blame for
bumping up costs and noted there were no allegations that its
contracts affected patient care. Despite the antitrust claims, it
said there is plenty of competition.
About 1,400 self-funded employers and unions settled the lawsuit
two years ago. They also initially sought damages that could have
exceeded $1 billion.
The trial getting underway in a San Francisco courtroom includes
the far larger group of employers and individual patients, with an
even bigger potential price tag for alleged damages.
Jury selection was in advance of opening. The trial is expected to
take four to six weeks. [GN]
SWING JUICE: CMP & Scheduling Order Entered in Tavarez-Vargas
-------------------------------------------------------------
In the class action lawsuit captioned as CARMEN TAVAREZ-VARGAS,
Individually, and On Behalf of All Others Similarly Situated, v.
SWING JUICE LLC, Case No. 1:21-cv-10976-JMF (S.D.N.Y.), the Hon.
Judge entered a civil case management plan and scheduling order as
follows:
1. Any motion to amend or to join March 10, 2022
additional parties shall be filed
no later:
2. Initial disclosures pursuant to Feb. 22, 2022
Fed. R. Civ. P. 26(a)(1) shall be
completed no later than than:
3. All fact discovery shall be completed June 8, 2022
no later than:
4. All expert discovery, including June 8, 2022
reports, production of underlying
documents, and depositions, shall
be completed no later than:
5. The Plaintiff shall file a motion July 8, 2022
for class certification no later than:
6. Any opposition shall be filed by: Aug. 22, 2022
7. Any reply shall be filed by: Oct. 6, 2022
A copy of the Court's order dated Feb. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3GJZa2M at no extra charge.[CC]
TAL EDUCATION: Wolf Haldenstein Reminds of April 5 Deadline
-----------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP announces that a federal
securities class action lawsuit has been filed in the United States
District Court for the Southern District of New York on behalf of
investors who purchased or otherwise acquired the American
Depositary Shares ("ADS's") of TAL Education Group ("TAL") (NYSE:
TAL) in the period April 26, 2018 through July 22, 2021, inclusive
(the "Class Period").
All investors who purchased the ADS's of TAL Education Group and
incurred losses are urged to contact the firm immediately at
classmember@whafh.com or (800) 575-0735 or (212) 545-4774. You may
obtain additional information concerning the action or join the
case on our website, www.whafh.com.
If you have incurred losses in the ADS's of TAL Education Group,
you may, no later than April 5, 2022, request that the Court
appoint you lead plaintiff of the proposed class. Please contact
Wolf Haldenstein to learn more about your rights as an investor in
the ADS's of TAL Education Group.
On April 25, 2021, media reports revealed that the government
officials of the City of Beijing had fined four online education
agencies, including TAL, the maximum fine of 500,000 yuan each for
misleading customers with false advertising. Specifically,
regulators found that TAL's VIE, Beijing Xueersi Education
Technology Co., Ltd., had been misrepresenting the un-discounted
costs of enrollment in its courses to consumers, thereby deceiving
customers into paying full price for courses that they believed
they were receiving at a discount. Following this news, the price
of TAL ADS's dropped from $53.14 on May 11, 2021, to $46.25 on May
13, 2021, a 13% decline over the two-day period.
Then, on June 1, 2021, Chinese regulators announced they had fined
15 off-campus training institutions, including TAL, for illegal
activities such as false advertising and fraud. The offending
companies, including TAL, were hit with maximum penalties for their
illegal business practices, totaling a combined 36.5 million yuan
($5.73 million). Following this news, the price of TAL ADSs dropped
from $40.51 on June 1, 2021, to $33.27 on June 3, 2021, nearly an
18% decline over the two-day period.
Finally, on July 23, 2021, China unveiled a sweeping overhaul of
its education sector, banning companies that teach the school
curriculum from making profits, raising capital or going public.
This drastic measure effectively ended any potential growth in the
for-profit tutoring sector in China. Following this news, the price
of TAL ADSs fell from $20.52 on July 22, 2021, to just $4.40 on
July 26, 2021, a nearly 79% decline.
Wolf Haldenstein has extensive experience in the prosecution of
securities class actions and derivative litigation in state and
federal trial and appellate courts across the country. The firm has
attorneys in various practice areas; and offices in New York,
Chicago and San Diego. The reputation and expertise of this firm in
shareholder and other class litigation has been repeatedly
recognized by the courts, which have appointed it to major
positions in complex securities multi-district and consolidated
litigation.
If you wish to discuss this action or have any questions regarding
your rights and interests in this case, please immediately contact
Wolf Haldenstein by telephone at (800) 575-0735, via e-mail at
classmember@whafh.com, or visit our website at www.whafh.com. [GN]
TRC COMPANIES: Bandy Sues Over Unpaid OT for Landman Supervisors
----------------------------------------------------------------
HERMAN BANDY, individually and on behalf of all others similarly
situated, Plaintiff v. TRC COMPANIES, INC., Defendant, Case No.
1:22-cv-00144 (W.D. Tex., February 16, 2022) is a class action
against the Defendant for its failure to compensate the Plaintiff
and similarly situated landman supervisors overtime pay for all
hours worked in excess of 40 hours in a workweek in violation of
the Fair Labor Standards Act.
Mr. Bandy worked for the Defendant as a landman supervisor in
Midland, Texas from January 1, 2019 to July 7, 2020.
TRC Companies, Inc. is a global consulting, engineering and
construction management firm, with its principal place of business
located at 21 Griffin Road North, Windsor, Connecticut. [BN]
The Plaintiff is represented by:
Gabriel A. Assaad, Esq.
Matthew S. Yezierski, Esq.
McDONALD WORLEY, P.C.
1770 St. James St., Suite 100
Houston, TX 77056
Telephone: (713) 523-5500
Facsimile: (713) 523-5501
E-mail: gassaad@mcdonaldworley.com
matt@mcdonaldworley.com
- and –
Galvin Kennedy, Esq.
KENNEDY LAW FIRM, LLP
2925 Richmond Ave., Ste. 1200
Houston, TX 77098
Telephone: (713) 425-6445
Facsimile: (888) 389-9317
E-mail: Galvin@KennedyAttorney.com
UNITED STATES: Doster Sues Over Denied COVID-19 Policy Exemption
----------------------------------------------------------------
HUNTER DOSTER, JOE DILLS, JASON ANDERSON, MCKENNA COLANTANIO, PAUL
CLEMENT, BENJAMIN LEIBY, BRETT MARTIN, CONNOR MCCORMICK, HEIDI
MOSHER, PETER NORRIS, PATRICK POTTINGER, ALEX RAMSPERGER, DANIEL
REINEKE, BENJAMIN RINALDI, DOUGLAS RUYLE, CHRISTOPHER SCHULDES,
EDWARD STAPANON, III, ADAM THERIAULT, individually and on behalf of
all others similarly situated, Plaintiffs v. Hon. FRANK KENDALL, in
his official capacity as Secretary of the Air Force; Lt. General
MARSHALL B. WEBB, in his official capacity as Commander Air
Education and Training Command; Lt. General RICHARD W. SCOBEE, in
his official capacity as Commander, Air Force Reserve Command; Lt.
General JAMES C. SLIFE, in his official capacity as Commander, Air
Force Special Operations Command; and UNITED STATES OF AMERICA,
Defendants, Case No. 1:22-cv-00084-MWM (S.D. Ohio, February 16,
2022) is a class action against the Defendants for violations of
the Religious Freedom Restoration Act and the First Amendment of
the United States Constitution.
According to the complaint, the Defendants violated the rights of
members of the U.S. Air and Space Force by denying the Plaintiffs'
request to be exempted from COVID-19 vaccination policy based on
their religious beliefs. The Department of the Air Force has failed
to approve all but a small handful of religious accommodation
requests, and those requests, upon information and belief, are for
airmen who are close to the terminal end of their service. While at
the same time, the Department of the Air Force has approved
thousands of administrative or medical exemptions to the same
requirements, says the suit.[BN]
The Plaintiffs are represented by:
Christopher Wiest, Esq.
CHRIS WIEST, ATTY AT LAW, PLLC
25 Town Center Blvd, Suite 104
Crestview Hills, KY 41017
Telephone: (513) 257-1895
Facsimile: (859) 495-0803
E-mail: chris@cwiestlaw.com
- and –
Aaron Siri, Esq.
Elizabeth Brehm, Esq.
Wendy Cox, Esq.
SIRI GLIMSTAD, LLP
200 Park Avenue, 17th Floor
New York, NY 10166
Telephone: (212) 532-1091
Facsimile: (646) 417-5967
E-mail: aaron@sirillp.com
- and –
Thomas Bruns, Esq.
BRUNS, CONNELL, VOLLMAR & ARMSTRONG LLC
4750 Ashwood Drive, Suite 200
Cincinnati, OH 45241
Telephone: (513) 312-9890
E-mail: tbruns@bcvalaw.com
UNITED STATES: Revised Scheduling Order, Case Mng't Plan Entered
----------------------------------------------------------------
In the class action lawsuit captioned as Center For Leadership And
Justice, et al., v. United States Department of Housing and Urban
Development, et al., Case No. 3:20-cv-01728-SALM (D.Conn.), the
Hon. Judge Sarah A. L. Merriam entered a revised scheduling order
and case management plan as follows:
-- Discovery Deadlines:
All fact discovery will be April 12, 2022
completed (not propounded) by:
Parties must designate any April 26, 2022
trial experts and provide
opposing counsel with reports
from retained experts pursuant
to Fed. R. Civ. P. 26(a)(2) on
any issues on which they bear the
burden of proof by:
Depositions of any such experts May 17, 2022
will be conducted by:
Depositions of any such experts June 28, 2022
will be conducted by:
-- Motions for Class Certification:
Any motion for class certification Aug. 19, 2022
must be filed on or before:
Opposition to any such motions Oct. 18, 2022
must be filed by:
Reply briefs, if any, shall be Nov. 17, 2022
filed by:
-- Dispositive Motions:
Any motion for summary judgment Aug. 19, 2022
or for judgment on the pleadings
must be filed no later than:
Opposition to any such Oct. 18, 2022
motions must be filed by:
Reply briefs, if any, shall be Nov. 17, 2022
filed by:
-- Joint Status Reports of Counsel:
A joint status report of counsel Feb. 18, 2022
shall be filed on or before:
-- Extensions of Time:
All dates set forth in this Order are firm and will be
extended only for good cause. The good cause standard
requires a particularized showing that, despite due
diligence, the party seeking the extension could not
comply with this order.
Any motion for extension of a deadline must comply
with Local Rule 7.
-- Settlement:
The parties are encouraged to contact Judge Martinez,
either jointly or ex parte, to discuss settlement further.
The Court particularly urges the parties to revisit
settlement prior to the expert disclosure deadlines.
Counsel shall provide each named party to this action with
a copy of this Order.
The United States Department of Housing and Urban Development is a
Cabinet department in the executive branch of the U.S. federal
government.
A copy of the Court's order dated Feb. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3uPkCkB at no extra charge.[CC]
VERTEX GLOBAL: Bid to Dismiss Franklin Class Action Tossed
----------------------------------------------------------
In the class action lawsuit captioned as HENRY FRANKLIN, on behalf
of himself and others similarly situated, v. VERTEX GLOBAL
SOLUTIONS, INC. and FRESH DIRECT, LLC, Case No. 1:20-cv-10495-KP
(S.D.N.Y.), the Hon. Judge Katherine Polk Failla entered an order:
1. denying Vertex and Fresh Direct's motions to dismiss;
2. directing the Defendants to file Answers to the Amended
Complaint by March 9, 2022;
3. directing the parties to file a proposed case management
plan and joint status letter by March 30, 2022; and
4. directing the Clerk of Court to terminate the pending
motions at docket entries 28 and 29.
The Court finds there to be a critical distinction between the
putative joint employer relationships in Conde and Duff and that
between Fresh Direct and Vertex: Individuals hired by Vertex
operated with the expectation that satisfactory performance would
lead to a full-time offer from Fresh Direct.
This puts the employer relationship between Vertex and Fresh Direct
on a fundamentally different plane than those in Conde and Duff. In
Conde, there was no allegation that a protracted period of good
work at the cosmetics counter could get someone hired at the
department store. Likewise in Duff, good performance for the
general contractor would not be expected to lead to a full-time
employment opportunity with the subcontractor. Where the plaintiffs
in those cases could have been moved to different department stores
or worksites and still maintain their jobs with their formal
employers, the job to which Plaintiff applied was restricted at all
times to providing services to Fresh Direct. Furthermore, the first
three months of an individual's employment with Vertex constituted
a "probationary period" that could lead to a full-time offer with
Fresh Direct. While it is true that Plaintiff would have been aided
by additional allegations of precisely how Fresh Direct exercised
control over Vertex hires and the extent to which Fresh Direct
possessed the power to terminate Vertex employees, these matters
are appropriate subjects of inquiry in discovery.
The Plaintiff has plausibly alleged that Fresh Direct exercised
more control over Vertex's employees than that "minimal level of
oversight" incident to any individual working on an employer's
premises. Accordingly, the Court concludes that Fresh Direct and
Vertex were Plaintiff's prospective joint employers and, therefore,
that Fresh Direct may be held liable for Vertex's alleged New York
City Human Rights Law (NYCHRL) violations.
The Plaintiff Franklin, on behalf of himself and a putative class
of similarly situated job applicants, has sued the Defendants for
their alleged use of a pre-employment screening policy that
discriminates against job applicants with criminal histories in
violation of the NYCHRL.
Vertex and Fresh Direct have each moved to dismiss Plaintiff's
claims, contending that their hiring practices comply with New York
City law and do not discriminate against individuals with criminal
histories. Fresh Direct additionally argues that Plaintiff's claims
should fail because he has not alleged Fresh Direct's participation
in any facet of Plaintiff's employment application with Vertex.
A copy of the Court's order dated Feb. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3GR7k9N at no extra charge.[CC]
VERTEX GLOBAL: Has Until March 9 to Answer Amended Franklin Suit
----------------------------------------------------------------
In the case, HENRY FRANKLIN, on behalf of himself and others
similarly situated, Plaintiffs v. VERTEX GLOBAL SOLUTIONS, INC. and
FRESH DIRECT, LLC, Defendants, Case No. 20 Civ. 10495 (KPF)
(S.D.N.Y.), Judge Katherine Polk Failla of the U.S. District Court
for the Southern District of New York denied in full the
Defendants' motion to dismiss the Plaintiff's claims.
Judge Failla ordered the Defendants to file Answers to the Amended
Complaint by March 9, 2022.
I. Background
Plaintiff Franklin, on behalf of himself and a putative class of
similarly situated job applicants, has sued Defendants Vertex and
Fresh Direct for their alleged use of a pre-employment screening
policy that discriminates against job applicants with criminal
histories in violation of the New York City Human Rights Law (the
"NYCHRL"), N.Y.C. Admin. Code, Sections 8-101 to 8-131, as amended
by the Fair Chance Act (the "FCA"), N.Y.C. Local Law 63 (2015).
Plaintiff Franklin is a citizen of New York and a man with a
criminal record. Defendant Vertex is a staffing agency
headquartered in New York. Defendant Fresh Direct is a Delaware
corporation specializing in direct-to-consumer food delivery, with
its principal place of business in New York.
On Dec. 6, 2018, the Plaintiff arrived at a Fresh Direct facility
in the Bronx to participate in a job recruiting program with the
company. Following the presentation, and with no questions asked of
them, the applicants in the room each received a document
purporting to be a conditional offer of employment that they were
told to sign. The Offer Form recited that Vertex was "pleased to
offer a conditional offer of employment," and provided that the
applicant's hourly salary would be $13. The form further explained
that the employment offer was "contingent upon a satisfactory
outcome of the pre-employment screening process, which includes but
is not necessarily limited to a review of past employment,
education records, verification of ability to work in the United
States, history background check and in some cases a drug screen."
The Plaintiff signed and dated the Offer Form and noted that the
time was 11:40 a.m.
Shortly after signing the Offer Form, at 11:46 a.m., the Plaintiff
received and signed another form, this time a release authorizing a
background check. The Background Check Release makes no specific
reference to the Offer Form that the Plaintiff and the other
applicants in the room had signed just moments earlier. Once the
Plaintiff signed the Background Check Release, he was told that the
recruiting process was complete and that he was free to leave the
facility.
Within approximately one to two weeks, the Plaintiff received a
letter from Vertex, notifying him that his background check had
disclosed a criminal record. He never heard from Defendants again.
Following the rejection of his application, the Plaintiff claims
that the entire hiring process was "a transparent ruse" and that
the "sole purpose of gathering at the Fresh Direct facility was to
initiate background checks that would weed out applicants with
conviction histories."
The Plaintiff alleges that his employment application was for a job
with both Vertex and Fresh Direct, even though he formally applied
for a job only with Vertex. He asserts that both the Defendants
participated in the hiring of Fresh Direct employees, as evidenced
by the fact that Vertex held its recruiting event on Fresh Direct's
premises. Moreover, applicants who were hired by Vertex to provide
services to Fresh Direct would be formally employed by Vertex for
the first few months, after which Fresh Direct would have the
option to hire them directly. Even during the initial period where
an individual was formally employed by Vertex, all workers
providing services to Fresh Direct through Vertex were subject to
Fresh Direct's control and supervision.
The Plaintiff commenced the instant suit by filing the underlying
Complaint on behalf of himself and a putative class on Dec. 11,
2020. On April 30, 2021, the Defendants each filed pre-motion
letters indicating their intent to move to dismiss the Complaint.
The Plaintiff filed a letter in opposition on May 3, 2021. The
Court scheduled a conference to discuss these anticipated motions
to dismiss, which took place on May 13, 2021. Following this
conference, the Court entered a briefing schedule, which provided
the Plaintiff an opportunity to amend his pleading.
The Plaintiff filed the Amended Complaint, which is the operative
pleading in the matter, on June 1, 2021. On July 9, 2021, the
Defendants filed their motions to dismiss and supporting papers. On
Aug. 6, 2021, the Plaintiff filed his opposition brief. Thereafter,
on Aug. 23, 2021, the Defendants filed their reply briefs. On Jan.
27, 2022, the Plaintiff filed a notice of supplemental authority
regarding a recent decision from Judge Caproni in a case in which
the Plaintiff also sought to serve as named plaintiff in a putative
class action.
Vertex and Fresh Direct have each moved to dismiss the Plaintiff's
claims, contending that their hiring practices comply with New York
City law and do not discriminate against individuals with criminal
histories. Fresh Direct additionally argues that the Plaintiff's
claims should fail because he has not alleged Fresh Direct's
participation in any facet of his employment application with
Vertex.
II. Discussion
A. Plaintiff Has Plausibly Alleged a Violation of the NYCHRL, as
Amended by the FCA
The Plaintiff asserts that the Defendants' hiring practices
violated his rights under the NYCHRL, as amended by the FCA,
because Defendants (i) conducted a background check prior to
extending a conditional offer of employment; (ii) declared that a
background check would be conducted without first making a
conditional offer of employment; and (iii) denied him employment
without adhering to the Fair Chance Process. His central allegation
is that the document that Defendants labeled a "conditional offer
of employment" was a contrivance designed to circumvent the FCA and
permit Defendants to scrutinize applicants' criminal histories
prematurely in the hiring process.
The Defendants maintain the legitimacy of their conditional offer
of employment and insist that their hiring practices accorded with
the FCA. They further argue that Franklin lost his right to an
Article 23-A analysis before they rescinded their conditional offer
because Franklin misrepresented his criminal history in executing
the Background Check Release.
Judge Failla finds that the Plaintiff has plausibly alleged that
the Defendants feigned a conditional offer of employment before
inquiring into his criminal background, which constitutes an
actionable violation of the NYCHRL, as amended by the FCA.
Accordingly, the Plaintiff has stated a claim pursuant to the
NYCHRL, as amended by the FCA.
B. Plaintiff Has Plausibly Alleged that Fresh Direct Was a Joint
Employer
Independent of whether the Plaintiff has plausibly alleged a
primary violation of the FCA, Fresh Direct asserts that he has
failed to allege a basis to hold Fresh Direct liable for the hiring
practices instituted by Vertex. It argues that the Plaintiff's
theory of Fresh Direct's liability is premised entirely on
speculation and that the Amended Complaint is bereft of factual
allegations tying Fresh Direct to Plaintiff's application for
employment with Vertex.
The Plaintiff rejoins that his allegations suggest that Fresh
Direct facilitated Vertex's hiring of employees in an illegal
manner and that Vertex employees were subject to Fresh Direct's
control. Thus, he contends, Fresh Direct may be held liable as
either a joint employer or as an aider and abettor of Vertex's
discriminatory conduct.
Judge Failla concludes that, at the pleading stage, the Plaintiff
has plausibly alleged that Fresh Direct both acted as his
prospective joint employer and aided and abetted Vertex's
discriminatory conduct. The Plaintiff has set forth allegations
giving rise to the plausible inference that Fresh Direct exercised
sufficient control over Vertex employees to make it his prospective
joint employer.
While it is true that the Plaintiff would have been aided by
additional allegations of precisely how Fresh Direct exercised
control over Vertex hires and the extent to which Fresh Direct
possessed the power to terminate Vertex employees, Judge Failla
finds that these matters are appropriate subjects of inquiry in
discovery. The Plaintiff has plausibly alleged that Fresh Direct
exercised more control over Vertex's employees than that "minimal
level of oversight" incident to any individual working on an
employer's premises. Accordingly, Judge Failla concludes that Fresh
Direct and Vertex were the Plaintiff's prospective joint employers
and, therefore, that Fresh Direct may be held liable for Vertex's
alleged NYCHRL violations.
III. Conclusion
For the foregoing reasons, Judge Failla denied Vertex and Fresh
Direct's motions to dismiss. She ordered the Defendants to file
Answers to the Amended Complaint by March 9, 2022. Moreover, the
parties are directed to file a proposed case management plan and
joint status letter by March 30, 2022.
The Clerk of Court is directed to terminate the pending motions at
docket entries 28 and 29.
A full-text copy of the Court's Feb. 9, 2022 Opinion & Order is
available at https://tinyurl.com/mr3f3c2j from Leagle.com.
WINESTOR LLC: CMP, Scheduling Order Entered in Weekes Class Suit
----------------------------------------------------------------
In the class action lawsuit captioned as ROBERT WEEKES,
Individually, and On Behalf of All Others Similarly Situated, v.
WINESTOR, LLC, Case No. 1:21-cv-10224-JMF (S.D.N.Y.), the Hon.
Judge Jesse M. Furman entered a civil case management plan and
scheduling order as follows:
1. Any motion to amend or to join March 10, 2022
additional parties shall be filed
no later:
2. Initial disclosures pursuant to Feb. 22, 2022
Fed. R. Civ. P. 26(a)(1) shall be
completed no later than than:
3. All fact discovery shall be completed June 8, 2022
no later than:
4. All expert discovery, including June 8, 2022
reports, production of underlying
documents, and depositions, shall
be completed no later than:
5. The Plaintiff shall file a motion July 8, 2022
for class certification no later than:
6. Any opposition shall be filed by: Aug. 9, 2022
7. Any reply shall be filed by: Sept. 8, 2022
A copy of the Court's order dated Feb. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3gIoYlo at no extra charge.[CC]
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2022. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.
Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.
The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact
Peter A. Chapman at 215-945-7000.
*** End of Transmission ***