/raid1/www/Hosts/bankrupt/CAR_Public/220311.mbx
C L A S S A C T I O N R E P O R T E R
Friday, March 11, 2022, Vol. 24, No. 45
Headlines
3M COMPANY: Board Sues Over Exposure to Toxic Film-Forming Foams
5B NASHVILLE: Fails to Pay Servers' Proper Wages, Arreola Suit Says
A W CHANG CORPORATION: Paguada Files ADA Suit in S.D. New York
ABBOTT LABORATORIES: Faces Suit Over Baby Formula Contamination
ABBOTT LABORATORIES: Raymond Sues Over Infant Formula Contamination
ALACHUA, FL: Court Dismisses Suit Filed by Ballard for Organization
ALDOUS & ASSOCIATES: Simon Files FDCPA Suit in D. New Jersey
AMAZON.COM SERVICES: Gallardo Suit Removed to S.D. California
AMERICAN FLOOR: Paguada Files ADA Suit in S.D. New York
APR US: Paguada Files ADA Suit in S.D. New York
ASARCO LLC: Averts Retiree Health Benefits Class Action
AWESOME REI: Whittaker Files TCPA Suit in D. South Carolina
BAY HARBOR MOTORS: Crumwell Files ADA Suit in S.D. New York
BOB BAFFERT: Faces Derby Class Action Over Alleged Racketeering
BP PLC: Judge Takes Calif. Drivers' Class Action Under Submission
BRIKS & MORTAR: Fischler Files ADA Suit in S.D. New York
CAMPBELL SOUP: Seeks Dismissal of V8 Class Action Lawsuit
CANADA: FSIN Supports Class Action Over Tuberculosis Sanatoriums
CARE CUBE: Schumacher Sues Over COVID-19 Testing Scam
CAROLINA LUMBER: Fails to Pay Proper Wages, Alexander Alleges
CITY GIRL: Faces Bueno Suit Over General Assistant's Unpaid Wages
EXPERIAN INFORMATION: Dismissal of Tailford Amended Suit Affirmed
FACTUAL DATA: Faces Steinberg Suit Over False Consumer Reports
FEDERAL RESERVE BANK: Charlton Files Suit in Cal. Super. Ct.
FREEDOM HOME: Whittaker Files TCPA Suit in S.D. New York
FRICKENSCHMIDT FOODS: Adewol Files Mislabeling Class Action
GAUGHAN ENTERPRISES: Newbre Sues Over Fraudulent Rental Scheme
GENERAL DYNAMIC: Court Grants Class Certification in WARN Lawsuit
GOLI NUTRITION: Chiarappa Sues Over Mislabeled ACV Gummy Products
GOLO LLC: Fischler Files ADA Suit in S.D. New York
GOVERNMENT EMPLOYEES: Denial of Prudhomme's Class Cert. Bid Upheld
GREAT LAKES: Court Dismisses Lyons, Gallagher and Stockbine Suits
GROUNDWORK COFFEE: Young Files ADA Suit in S.D. New York
GWG HOLDINGS: Girard Sharp Reminds of April 25 Deadline
HARTFORD CASUALTY: Connecticut Court Tosses Milton's Amended Suit
HARTFORD HEALTHCARE: Faces Class Action Over Price Increases
HUNTINGTON NEIGHBORHOOD: Judgment on Pleadings Issued in Rojas Suit
ILUKA RESOURCES: Impact of Class Action Defence on D&O Discussed
KELLOGG SALES: N.D. Illinois Dismisses Chiappetta Consumer Suit
MISSISSIPPI: District Court Grants Bid to Dismiss Amos v. MSP
MOM ENTERPRISES: Murphy Sues Over Deceptive Gripe Water Product Ad
MP MATERIALS: Faces Bernstein Suit Over Drop in Share Price
NEW YORK: $2.45-Mil. in Attorneys' Fees Awarded in Nnebe v. TLC
NEW YORK: District Court Certifies Liability Class in Nnebe v. TLC
OVH GROUPE: Launches Storage Service Amid Data Center Class Action
PETERSON & MYERS: Gentles Sues Over FDCPA Breach
QUALITY FACILITY: Fails to Pay Proper Wages, Allen Suit Alleges
ROYAL WINNIPEG: Ont. Court Approves $10MM Class Action Settlement
SHAKER CONTRACTORS: Fails to Pay Proper Wages, Bemejo Suit Claims
SHATTUCK LABS: Levi & Korsinsky Reminds of April 1 Deadline
SKY SOURCE: Underpays Field Data Collectors, Cox Suit Says
STANDARD LITHIUM: Rosen Law Firm Reminds of March 28 Deadline
SUGAR CORP: Florida Residents Dropped Suit Over Sugar Crop Burns
THERMOFLEX WAUKEGAN: Wins Judgment on Pleadings in Citizens Suit
TSCHETTER SULZER: Tenants File Suit Over Misleading Agreement
U.S. OF ARITZIA: Hanyzkiewicz Files ADA Suit in E.D. New York
U.S. SOCCER: Women's Soccer Team Suit Reaches Equal Pay Settlement
WAKEFERN FOOD: Myers' Amended Class Suit Dismissed With Prejudice
WASHINGTON, DC: Agrees to Jail Inspections for Settlement Purposes
WENTZVILLE R-IV: School Board Reverses Decision on Banned Books
YISP BV: Stibbe Attroneys Discuss Class Suit Over Illegal Content
[*] H.R. 4445 Impacts Employment-Related Agreements
[*] U.S. Class Action Suits Over Consumer Beauty Products Discussed
Asbestos Litigation
ASBESTOS UPDATE: Alcoa Corp.'s Subsidiaries Faces PI Lawsuits
ASBESTOS UPDATE: Alleghany Corp. Has $39.4MM Gross Reserves
ASBESTOS UPDATE: AMETEK Defends Multiple Asbestos-Related Suits
ASBESTOS UPDATE: Aqua-Chem Faces 15,000 Product Liability Claims
ASBESTOS UPDATE: CenterPoint Energy Still Defends PI Lawsuits
ASBESTOS UPDATE: Cincinnati Financial Reports $88MM Loss Reserves
ASBESTOS UPDATE: Curtiss-Wright Still Defends PI Lawsuits
ASBESTOS UPDATE: Flowserve Corp. Defends Multiple PI Lawsuits
ASBESTOS UPDATE: IDEX Corp. Faces Various PI Lawsuits
ASBESTOS UPDATE: Olin Corp. Faces Exposure Claims
ASBESTOS UPDATE: Pentair plc's Subsidiaries Defends 670 Claims
ASBESTOS UPDATE: Pfizer Inc. Faces Personal Injury Claims
ASBESTOS UPDATE: Rogers Corp Has $68.33MM Liabilities at Dec. 31
ASBESTOS UPDATE: Sealed Air Still Faces Product Liability Claims
ASBESTOS UPDATE: Standard Motor Has $60.5MM Accrued Liabilities
ASBESTOS UPDATE: Tenneco Has 500 Cases in U.S. and 50 in Europe
ASBESTOS UPDATE: Transocean Faces 250 PI Lawsuits as of Dec. 31
ASBESTOS UPDATE: Vontier Corp. Records $79.0MM Future Liabilities
ASBESTOS UPDATE: W. R. Berkley Has $20MM Net Reserves at Dec. 31
ASBESTOS UPDATE: Watts Water Tech Faces 400 Exposure Suits
*********
3M COMPANY: Board Sues Over Exposure to Toxic Film-Forming Foams
----------------------------------------------------------------
Anthony Board, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS
INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE
FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN
PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY
FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Case No. 2:22-cv-00530-RMG (D.S.C., Feb. 18,
2022), is brought for damages for personal injury resulting from
exposure to aqueous film-forming foams ("AFFF") containing the
toxic chemicals collectively known as per and polyfluoroalkyl
substances ("PFAS"). PFAS includes, but is not limited to,
perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid
("PFOS") and related chemicals including those that degrade to PFOA
and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires. The Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter and was diagnosed with
colon cancer as a result of exposure to the Defendants' AFFF
products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Phone: 631-600-0000
Facsimile: 631-543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Phone: 205-328-9200
Facsimile: 205-328-9456
5B NASHVILLE: Fails to Pay Servers' Proper Wages, Arreola Suit Says
-------------------------------------------------------------------
RITA ARREOLA, individually and on behalf of all others similarly
situated, Plaintiff v. 5B NASHVILLE LLC d/b/a The Twelve Thirty
Club, Defendants, Case No.3:22-cv-00115 (M.D., Tenn., Feb. 22,
2022) seeks to recover unpaid minimum and overtime wages,
liquidated damages, attorneys' fees, and costs under the Fair Labor
Standards Act.
Ms. Arreola was employed by the Defendant as a cocktail server.
5B NASHVILLE LLC owns and operates a restaurant and bar known as
Twelve Thirty Club, located at Nashville, Tennessee.[BN]
The Plaintiff is represented by:
Joshua A. Frank, Esq.
BARRETT JOHNSTON MARTIN & GARRISON, LLC
Philips Plaza
414 Union Street, Suite 900
Nashville, TN 37219
Telephone: (615) 244-2202
Facsimile: (615) 252-3798
E-mail: jfrank@barrettjohnston.com
A W CHANG CORPORATION: Paguada Files ADA Suit in S.D. New York
--------------------------------------------------------------
A class action lawsuit has been filed against A W Chang
Corporation. The case is styled as Dilenia Paguada, on behalf of
herself and all others similarly situated v. A W Chang Corporation,
Case No. 1:22-cv-01817 (S.D.N.Y., March 3, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
A W Chang Corporation -- https://www.awchang.com/ -- was founded in
1989. The Company's line of business includes the retail sale of
men's and boys ready-to-wear clothing and accessories.[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
ABBOTT LABORATORIES: Faces Suit Over Baby Formula Contamination
---------------------------------------------------------------
Lexi Moore, writing for Count on News 2, reports that a law firm in
the Lowcountry is filing a nationwide class-action lawsuit against
the laboratory that manufactures baby formulas, recently recalled
by the Food and Drug Administration for possible contamination.
The FDA is warning consumers not to use or purchase certain
powdered formulas such as Alimentum, Similac, and Elecare made by
"Abbott Nutrition" as they could be contaminated with bacteria. Roy
Willey, a trial lawyer with the Anastopoulo Law Firm representing
the case says people around the world could be impacted.
"There's a certain level of trust with this product that's really
been broken because they have known about this for four months and
have allowed customers to still purchase it," says Willey.
The FDA is investigating after several babies were hospitalized and
one died. Investigators believe the illnesses could be related to
contamination in some of the company's powdered baby formulas.
"Similac is supposed to be one of the best. It's the one that
hospitals here give you," says Willey.
Officials say babies are showing side effects of diarrhea, fevers,
and bowel damage. Willey says they are representing a client in
Ridgeville whose infant has been exposed.
"She's just one of many people that's been affected by this. It
happened nationally and it's very widespread," says Willey.
Willey says this lawsuit hits close to home as he's got a
three-week-old baby that uses one of the recalled formulas.
"We are in the midst of this. I actually had this product and was
feeding it to my child," he says.
Lawyers say the liquid product is safe, but the bacteria lives in
dry conditions and urge people to make sure they are throwing out
any recalls.
"Most of this formula is produced in the facility so if you have
this formula, you probably have the affected recall," says Willey.
Officials say as of right now any Silimac Alimentum that expires by
April 1st are the ones recalled, but the FDA says they are
continuing to investigate the facility.
A spokesperson for Abbott sent News 2 a statement:
"We value the trust parents and caregivers place in us, and
ensuring the safety and quality of our products is our top
priority.
As part of Abbott's quality processes, all infant formula products
are tested for Cronobacter sakazakii, Salmonella and other
pathogens, and they must test negative before any product is
released. No distributed product from our Sturgis, Mich., facility
has tested positive for the presence of either Cronobacter
sakazakii or Salmonella." [GN]
ABBOTT LABORATORIES: Raymond Sues Over Infant Formula Contamination
-------------------------------------------------------------------
CHERRELL R. RAYMOND, MICHELLE MASON, NATHALIE COLOMBO, CATRICE
GRIGSBY individually and on behalf of all others similarly
situated, Plaintiffs v. ABBOTT LABORATORIES, INC., Defendant, Case
No. 1:22-cv-01014 (N.D. Ill., Feb. 25, 2022) arises from the
Defendant's unlawful conduct of manufacturing and selling to
consumers, including Plaintiffs, powdered infant formula products
contaminated with Cronobacter sakazakii, Salmonella, or other
bacteria.
The U.S. Food and Drug Administration announced on February 17,
2022 that it was investigating consumer complaints of Salmonella
and Cronobacter sakazakii infections related to the consumption of
Similac, Alimentum and EleCare powdered infant formulas
manufactured at Abbott Labs' Sturgis, Michigan facility. Findings
to date include several positive Cronobacter sakazakii results from
environmental samples taken by the FDA and adverse inspectional
observations by the FDA investigators.
Allegedly, the Defendants failed to warn Plaintiffs and other
members of the Class as to the potential adverse health effects
that using contaminated infant formula products could cause until
after the announcement of an FDA investigation into consumer
complaints of Cronobacter sakazakii infections.
The Plaintiffs and class members suffered economic harm in that
they would not have purchased the contaminated infant formula
products if they had known the risks associated with its use, says
the suit.[BN]
The Plaintiffs are represented by:
Dennis D. Spurling, Esq.
DENNIS SPURLING PLLC
3003 South Loop West, Suite 400
Houston, TX 77054
Telephone: (713) 229-0770
Facsimile: (713) 229-8444
ALACHUA, FL: Court Dismisses Suit Filed by Ballard for Organization
-------------------------------------------------------------------
The U.S. District Court for the Northern District of Florida,
Gainesville Division, dismissed without prejudice the claims in the
lawsuit titled 2022 ALACHUA COUNTY FLORIDA CLASS ACTION LAWSUIT
ORGANIZATION, LLC, Plaintiff v. ALACHUA COUNTY SHERIFF, et al.,
Defendants, Case No. 1:22-cv-8-AW-GRJ (N.D. Fla.).
District Judge Allen Winsor states that he has considered the
magistrate judge's Jan. 18, 2022 Report and Recommendation. No
objections were filed, but there was filed what appears to be a
proposed amended complaint, which he has treated as an objection.
Judge Winsor holds that the magistrate judge correctly explains
that James Ballard cannot bring a pro se prisoner class action
lawsuit. But it appears--even construing the complaint
liberally--that Ballard actually seeks to sue on behalf of "The
2022 Alachua County Florida Class Action Lawsuit Organization,
LLC," which the filing indicates "is a 1000 person member
organization comprised of members who have met certain criteria."
The complaint unambiguously says the Plaintiff is the LLC and
suggests the suit is brought "by James Lee Ballard - Pres." Judge
Winsor holds that this mechanism will not work either. Assuming
such an LLC exists, Ballard cannot represent it in court.
Corporations and other artificial entities (like LLCs) can appear
in court only through an attorney.
In his subsequent filing, Ballard indicates the organization is
interviewing attorneys and will be filing additional detailed
pleadings within the next 60 days. If the organization secures
counsel, it may refile, Judge Winsor says. In the meantime, the
claims will be dismissed without prejudice.
The Clerk will update the docket to reflect the correct plaintiff,
as shown on the case style. The Clerk will then enter judgment that
says, the "Plaintiff's claims are dismissed without prejudice
because an organization may not sue without counsel." The Clerk
will then close the file.
A full-text copy of the Court's Order dated Feb. 21, 2022, is
available at https://tinyurl.com/2p8swb3e from Leagle.com.
ALDOUS & ASSOCIATES: Simon Files FDCPA Suit in D. New Jersey
------------------------------------------------------------
A class action lawsuit has been filed against Aldous & Associates.
The case is styled as Philippe Simon, individually and on behalf of
all others similarly situated v. Aldous & Associates, Case No.
2:22-cv-01149 (D.N.J., March 2, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Aldous & Associates -- https://aldouslegal.com/ -- is a law firm
that specializes in fitness industry 90 day past due consumer
collections.[BN]
The Plaintiff is represented by:
Christofer Merritt, Esq.
STEIN SAKS LLC
1 University Plaza, Suite 620
Hackensack, NJ 07601
Phone: (540) 907-8248
Email: cmerritt@SteinSaksLegal.com
AMAZON.COM SERVICES: Gallardo Suit Removed to S.D. California
-------------------------------------------------------------
The case styled as Briana Gallardo, individually and on behalf of
all employees similarly situated v. Amazon.com Services LLC
formerly known as: Amazon.com Services Inc., Does 1 through 25,
inclusive, Case No. 37-02022-00001593-CU-OE-CTL, was removed from
the Superior Court of California, County of San Diego, to the U.S.
District Court for the Southern District of California on March 4,
2022.
The District Court Clerk assigned Case No. 3:22-cv-00297-LAB-AHG to
the proceeding.
The nature of suit is stated as Other Labor.
Amazon Services LLC -- https://www.amazon.com/ -- offers many of
the Web service platforms that are Amazon offers.[BN]
The Plaintiff is represented by:
Robert A Waller , Jr., Esq.
LAW OFFICES OF ROBERT A. WALLER, JR.
P.O. Box 999
Cardiff-by-the-Sea, CA 92007
Phone: (760) 753-3118
Fax: (760) 753-3206
Email: robert@robertwallerlaw.com
- and -
Ryan Stygar
8880 Rio San Diego Drive, Suite 800
Phone: (858) 206-8833
The Defendant is represented by:
Bradley Joseph Hamburger, Esq.
GIBSON DUNN AND CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
Phone: (213) 229-7000
Fax: (213) 229-7520
Email: bhamburger@gibsondunn.com
- and -
Megan Marie Cooney, Esq.
Michele L. Maryott, Esq.
GIBSON, DUNN & CRUTCHER LLP
3161 Michelson Drive, Suite 1200
Irvine, CA 92612
Phone: (949) 451-4087
Email: mcooney@gibsondunn.com
mmaryott@gibsondunn.com
AMERICAN FLOOR: Paguada Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against American Floor Mats,
LLC. The case is styled as Dilenia Paguada, on behalf of herself
and all others similarly situated v. American Floor Mats, LLC, Case
No. 1:22-cv-01830 (S.D.N.Y., March 3, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
American Floor Mats -- https://www.americanfloormats.com/ -- brings
25 years of floor mat experience and are proud to offer you the
most comprehensive selection of high quality door mats.[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
APR US: Paguada Files ADA Suit in S.D. New York
-----------------------------------------------
A class action lawsuit has been filed against APR US Inc. The case
is styled as Dilenia Paguada, on behalf of herself and all others
similarly situated v. APR US Inc., Case No. 1:22-cv-01836
(S.D.N.Y., March 3, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Aprilskin Official US -- https://aprilskin.us/ -- offers natural
skincare for glowing from April to April.[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
ASARCO LLC: Averts Retiree Health Benefits Class Action
-------------------------------------------------------
Rachel Stone, writing for Law360, reports that an Arizona federal
court has granted Asarco LLC's bid to throw out a consolidated
class action filed by a group of unions and retirees who say the
mining company can't alter or end their medical and prescription
drug benefits, determining that the parties' previous agreements
don't guarantee lifetime benefits in her order granting Asarco's
October 2021 motion for summary judgment. [GN]
AWESOME REI: Whittaker Files TCPA Suit in D. South Carolina
-----------------------------------------------------------
A class action lawsuit has been filed against Awesome REI LLC, et
al. The case is styled as Brenda Whittaker, individually and on
behalf of all others similarly situated v. Awesome REI LLC, a South
Carolina limited liability company; Patrick Riddle, an individual;
Case No. 2:22-cv-00672-RMG (D.S.C., March 3, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Awesome REI -- https://awesomerei.com/ -- is a real estate
company.[BN]
The Plaintiff is represented by:
Margaret A Collins, Esq.
PALMETTO STATE LAW GROUP
1087 Harbor Drive, Suite B
West Columbia, SC 29169
Phone: (803) 708-7442
Fax: (803) 753-9352
Email: meg@pslawsc.com
BAY HARBOR MOTORS: Crumwell Files ADA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Bay Harbor Motors
Corp. The case is styled as Denise Crumwell, on behalf of herself
and all other persons similarly situated v. Bay Harbor Motors
Corp., Case No. 1:22-cv-01825 (S.D.N.Y., March 3, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Bay Harbor Motors Corp. -- https://www.bayharbormotors.com/ -- is a
motorcycle dealer in New York City.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
BOB BAFFERT: Faces Derby Class Action Over Alleged Racketeering
---------------------------------------------------------------
T. D. Thornton, writing for Thoroughbred Daily News, reports that
Monday's ruling by the Kentucky Horse Racing Commission (KHRC) that
disqualified Medina Spirit from the 2021 GI Kentucky Derby has now
triggered dueling letters to the federal judge overseeing the
class-action case in which a group of bettors are suing trainer Bob
Baffert for allegedly engaging in a years-long pattern of
racketeering based on his purported "doping" of Thoroughbreds.
The plaintiffs in the case, led by Michael Beychok, the winner of
the 2012 National Horseplayers Championship, on Feb. 22 filed a
letter in United States District Court (District of New Jersey)
informing the judge that Medina Spirit was disqualified for a
betamethasone overage and that Baffert was suspended for 90 days
and fined $7,500.
On Feb. 23, Baffert's lead attorney, W. Craig Robertson, III fired
back with his own letter alleging that the public filing by the
plaintiffs was "inappropriate, misleading, and, most importantly,
irrelevant to the Defendants' Motion to Dismiss which is currently
pending before the Court."
Robertson also wrote that the KHRC's decision is not a final
ruling, because Baffert plans to appeal it.
"While the final status of Medina Spirit's Kentucky Derby win is
far from decided, whether or not the horse is disqualified makes no
difference when it comes to the legal issues argued in [Baffert's
motion to dismiss the case]. Simply put, Plaintiffs' letter does
nothing to rebut the overwhelming authority that the Plaintiffs, a
group of disgruntled gamblers, cannot maintain this action as a
matter of law."
The original version of the lawsuit was filed four days after
Baffert's disclosure that now-deceased Medina Spirit had tested
positive for betamethasone after winning the May 1, 2021, Derby.
Baffert, plus his incorporated racing stable, are the defendants.
The class members of the suit have alleged that they were "cheated
out of their property" because they placed wagers on other horses
and betting combinations that would have paid off had "the drugged
horse" not won the Derby.
The plaintiffs' letter Tuesday would seem to indicate that they
want the judge to consider the KHRC's Feb. 21 decision to DQ Medina
Spirit when ruling on Baffert's currently active motion to dismiss
the suit.
Baffert's lawyer underscored that the KHRC ruling should have no
bearing on the matter that is currently before the court, which is
the motion to dismiss the suit.
"[Baffert] moved to dismiss this matter based on the following
legal grounds: (1) lack of personal jurisdiction over the
Defendants and improper venue; (2) Plaintiffs' lack of standing to
bring their claims; and (3) the failure of the Amended Complaint to
state a valid claim under civil RICO or state law. The recent
Stewards' Ruling has no impact on any of these legal arguments.
"First, it does not magically create jurisdiction over the
Defendants who are based in California and raced Medina Spirit in
Kentucky.
"Second, the Stewards' Ruling is preliminary and there is already a
proceeding underway before the KHRC to review that ruling since it
is not a final decision of the administrative agency. Only now will
the matter undergo a full blown Administrative Hearing, including
discovery and depositions.
"Thereafter, any ultimate ruling of the KHRC may be appealed to
Kentucky's state courts. Thus, we are a long way away (likely
several years) from any final decision concerning Medina Spirit's
status."
Robertson continued: "Of particular importance, even if Medina
Spirit is ultimately disqualified, the Plaintiffs' claims fail as a
matter of law. Among other reasons, this is because the rules of
racing provide that pari-mutuel wagering is unaffected by any
disqualification. The Stewards' Ruling which the Plaintiffs
provided to the Court recognizes this fact when it specifically
states 'Pari-mutuel wagering is not affected by this ruling.'
"Plaintiffs' argument that a disqualification somehow creates a
compensable injury has been addressed and roundly rejected [in
precedent cases]. [T]he case law could not be more clear that,
among other things, gamblers with gambling losses are simply not
within the class of individuals those laws are designed to
protect," Robertson wrote. [GN]
BP PLC: Judge Takes Calif. Drivers' Class Action Under Submission
-----------------------------------------------------------------
Jeff McDonald, writing for San Diego Tribune, reports that
California drivers pay more to fill up their gas tanks than
consumers in other states -- and have for years. Now a retailer in
North County is trying to fight back by proving collusion between
major oil companies.
Persian Gulf Inc., which operates a 76 filling station in
Escondido, is the lead plaintiff in a class-action lawsuit that
accuses some of the most powerful oil companies in the world of
colluding to keep gas prices in California artificially high.
The complaint, which dates to 2015 and finally had its day in U.S.
District Court in San Diego on Wednesday, names entities owned by
BP, Chevron, Shell Oil, ExxonMobil, Phillips 66, Alon USA and
Tesoro as defendants.
Judge Jinsook Ohta issued a tentative ruling that went against the
plaintiff, but the decision was not made available for public
inspection.
During the hearing Wednesday, Ohta made it clear that her ruling
from late Friday was not final. She challenged legal arguments put
forward by lawyers on both sides but spent the bulk of the hearing
questioning the plaintiffs' counsel.
"The court will be giving a full written opinion," she said.
Ohta took the matter under advisement before adjourning the hearing
after nearly three hours of testimony. She directed the plaintiffs'
lawyers to submit additional facts by Monday and invited the
defendants to reply to fresh evidence presented Wednesday.
Tens of billions of dollars may be at stake in the lawsuit.
In all, more than 50 attorneys from across the country are
litigating the case, which is the latest in a decades-old campaign
by consumer attorneys and others to prove oil companies are
responsible for California gasoline costs being out of whack with
other states. [GN]
BRIKS & MORTAR: Fischler Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Briks & Mortar, LLC.
The case is styled as Brian Fischler, individually and on behalf of
all other persons similarly situated v. Briks & Mortar, LLC doing
business as: Sixpenny, Case No. 1:22-cv-01113-FB-VMS (S.D.N.Y.,
March 2, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Briks & Mortar, LLC doing business as Sixpenny --
https://sixpenny.com/ -- is a relatively new furniture
company.[BN]
The Plaintiff is represented by:
Christopher Howard Lowe, Esq.
LIPSKY LOWE LLP
420 Lexington Avenue, Suite 1830
New York, NY 10170
Phone: (212) 764-7171
Email: chris@lipskylowe.com
CAMPBELL SOUP: Seeks Dismissal of V8 Class Action Lawsuit
---------------------------------------------------------
John O'Brien, writing for Legal Newsline, reports that a lawsuit
claiming V8 is unhealthy because it contains the naturally
occurring sugars present in vegetables should be thrown out of
court, the drink's maker is arguing.
Charles Sipos and other attorneys at Perkins Coie on Feb. 17 filed
a motion to dismiss on behalf of Campbell Soup Company in an effort
to cut off the proposed class action in San Francisco federal
court.
At issue is Campbell's plea to consumers to "Boost Your Morning
Nutrition" on certain V8 products. The class action alleges this is
a false representation of the juice blends due to their sugar
content.
"This theory is implausible in multiple ways. It is contradicted by
the labels' repeated and truthful disclosures about the products'
sugar content," the motion says. "It is discredited by the
placement of the challenged claim on the products' labels, which
show that this 'Boost Your Morning Nutrition' claim appears
immediately adjacent to a listing of undisputed nutritional facts
about the foods.
"And it is wrong as a matter of FDA regulations and nutritional
guidance, which encourage consumers to drink juice even if it
contains naturally occurring sugar so long as it meets certain
nutritional criteria -- criteria the V8 Juices all meet and
exceed."
Plaintiffs lawyers are wrongly relying on court decisions involving
products with added sugars, Campbell's says.
"Dismissals of similar complaints by other Northern District judges
confirm the Complaint's incurable defects," the motion says. "These
cases expressly refute the plausibility of Plaintiffs' theory of
deception by explaining that labels that plainly and repeatedly
disclose a food's sugar content -- as the V8 Juice labels do --
give reasonable consumers all the information they need to decide
whether a food is 'healthy' enough to incorporate into their diet.
"The only meaningful difference between those cases and this one is
that here the foods contain no added sugar whatsoever. So,
Plaintiffs' theory of deception is even weaker than in these prior
cases that were nonetheless dismissed."
The plaintiffs are represented by Paul Joseph of Fitzgerald Joseph
in San Diego. He filed the case Dec. 7. [GN]
CANADA: FSIN Supports Class Action Over Tuberculosis Sanatoriums
----------------------------------------------------------------
Joel Willick, writing for mbcradio, reports that The Federation of
Sovereign Indigenous Nations is putting its support behind a
class-action lawsuit over Tuberculosis sanatoriums.
TB sanatoriums were extensions of the so-called "Indian Hospital"
system established by the federal government in the 1930s to battle
high rates of tuberculosis in Indigenous communities.
In August 2021, a class-action lawsuit was put forward over these
hospitals with claims of sub-par treatment against First Nations
people in these facilities including claims of experimental
treatment and sexual abuse.
31 hospitals across the country are named in the lawsuit with two
of those located in Saskatchewan - one in North Battleford and the
other in Fort Qu'Appelle.
First Nation chiefs at the FSIN winter assembly passed a resolution
to put their support behind the class action suit.
In addition, chiefs want the Tuberculosis Sanatoriums in Prince
Albert and Fort San, a village in southern Saskatchewan, to be
included in the lawsuit.
The FSIN is also planning to establish an education campaign to
raise awareness of these institutions and give survivors an
opportunity to tell their stories.
In the resolution, the assembly of chiefs called TB sanatoriums
colonial systems based in segregation and restrictions for First
Nation people.
Chiefs speak on personal experience
During the assembly, Makwa Sahgaiehcan First Nation chief Ronald
Mitsuing spoke on his personal experience at a TB sanatorium.
"In my younger years I got taken from my parents and dropped off at
the North Battleford hospital. . . and I ended up in the Saskatoon
Sanatorium and I experienced lots of bad things," Chief Mitsuing
told the other chiefs in assembly. "It was just like a 24-hour jail
and I couldn't get out of there."
Mitsuing hopes others can share their stories and bring about an
apology from the federal government and others involved.
Several other chiefs also spoke on their family's experience in
these institutions including Lac La Ronge Indian Band Chief Tammy
Cook-Searson.
"There are so many stories," said Cook-Searson. "Many of our people
didn't make it home from the sanatoriums, so many families didn't
have closure and it's like the residential schools."
Chief Cook-Searson thanked those who initially brought forward the
lawsuit and says she is in full support.
Tuberculosis outbreak currently in the north
The FSIN resolution comes during a TB outbreak currently happening
in northern Saskatchewan. The outbreak was initially declared in
October in the far north communities of Black Lake and Fond du Lac.
The latest reports show 48 confirmed cases with another 500 people
in the far north considered high risk.
During the discussion on the resolution, Prince Albert Grand
Council Grand Chief Brian Hardlotte pointed to housing as a
contributing factor to the tuberculosis outbreak.
"Tuberculosis is on the rise again. . . we all know from our
medical health officers the rise of TB is caused by overcrowding in
our homes," said Hardlotte. "This is an issue that is common to all
tribal councils and First Nations."
Grand Chief Hardlotte says housing is something the PAGC continues
to work to address.
The resolution to support the TB sanatorium lawsuit passed
unanimously during the assembly. [GN]
CARE CUBE: Schumacher Sues Over COVID-19 Testing Scam
-----------------------------------------------------
Sabine Schumacher and Linda Cunningham, individually and on behalf
of all others similarly situated v. CARE CUBE, LLC, Case No.
505015/2022 (N.Y. Sup. Ct., Kings Cty., Feb. 17, 2022), is brought
to seeking to put an end to the Defendant's false and deceptive
practices and redress the damage they have caused with regards to
COVID-19 testing scams.
The Defendant is exploiting the global pandemic caused by the
SARS-CoV-2 coronavirus ("COVID-19") by unlawfully overcharging New
Yorkers for COVID-19 tests. The Defendant's brazen profiteering has
enabled the upstart medical provider to expand from a single
location in Brooklyn three years ago to 20 locations throughout the
city, but this growth has come at the expense of tens of thousands
of New York consumers who have collectively been defrauded into
paying millions of dollars for COVID-19 tests.
The Defendant's COVID-19 testing scam works as follows: (a) the
Defendant falsely advertises—and takes advantage of the fact that
customers reasonably believe—that COVID-19 tests will be covered
by insurance, but then (b) surprise charges customers for
unnecessary and phony doctor consultations or "office visits" it
falsely claims took place alongside or, in some cases, instead of
the COVID-19 test the customer actually obtained, and/or (c)
extracts an upfront testing fee from insured customers by falsely
claiming the fee will be reimbursed once their health insurers
cover the charge, and then fails to reimburse the customers either
because the Defendant pockets the reimbursement or never obtains
it.
Through these tactics the Defendant exploits the current widespread
and urgent need for COVID-19 testing—whether for work, school,
travel, or even peace of mind during an extremely stressful
time—by knowingly subjecting New Yorkers to excessive and even
completely bogus charges. the Defendant has made millions of
dollars in revenue from its COVID-19 scam. Thus, Plaintiffs bring
this action on behalf of themselves and on behalf of a class of
consumers who obtained COVID-19 testing from the Defendant from
January 1, 2020 to the present. Plaintiffs seek, inter alia,
injunctive and declaratory relief, actual damages and refunds,
attorneys' fees, and the costs of this suit, says the complaint.
The Plaintiffs were customers of CareCube in June 2021, and as a
result of Defendant's deceptive conduct, they incurred excessive
charges for COVID-19 real-time polymerase chain reaction ("PCR")
testing.
Care Cube, LLC is a New York limited liability company.[BN]
The Plaintiff is represented by:
Steven L. Wittels, Esq.
J. Burkett McInturff, Esq.
Tiasha Palikovic, Esq.
Steven D. Cohen, Esq.
Ethan D. Roman, Esq.
WITTELS MCINTURFF PALIKOVIC
18 Half Mile Road
Armonk, NY 10504
Phone: (914) 319-9945
Facsimile: (914) 273-2563
Email: slw@wittelslaw.com
jbm@wittelslaw.com
tpalikovic@wittelslaw.com
sdc@wittelslaw.com
edr@wittelslaw.com
CAROLINA LUMBER: Fails to Pay Proper Wages, Alexander Alleges
-------------------------------------------------------------
STEPHEN ALEXANDER, individually and on behalf of all others
similarly situated, Plaintiff v. CAROLINA LUMBER & SUPPLY CO.,
Defendant, Case No. 1:22-cv-00741-AT (N.D., Ga., Feb. 22, 2022)
seeks to recover from the Defendants unpaid wages and overtime
compensation, interest, liquidated damages, attorneys' fees, and
costs under the Fair Labor Standards Act.
Plaintiff Alexander was employed by the Defendant as a driver.
Carolina Lumber & Supply Co. supplies building materials. The
Company provides lumber, plywood, doors, stairparts, boards,
moulding, hardware, siding, and decking materials. Carolina Lumber
& Supply serves customers in the United States. [BN]
The Plaintiff is represented by:
Courtney Harness, Esq.
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Center Parkway, Suite 510
Little Rock, AK 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
E-mail: harness@sanfordlawfirm.com
josh@sanfordlawfirm.com
- and -
Matthew W. Herrington, Esq.
DELONG CALDWELL BRIDGERS
FITZPATRICK & BENJAMIN, LLC
101 Marietta Street, Suite 2650
Atlanta, GA 30303
Telephone: (404) 979-3150
E-mail: matthew.herrington@dcbflegal.com
CITY GIRL: Faces Bueno Suit Over General Assistant's Unpaid Wages
-----------------------------------------------------------------
ALEXANDER FRANCISCO BUENO, individually and on behalf of others
similarly situated, Plaintiff v. CITY GIRL FASHION INC. (D/B/A
LINENS R US), LINEN DISCOUNT PLUS CORP. (D/B/A LINENS R US), ISAAC
ALKADAA, and HAISAM ABADI, Defendants, Case No. 1:22-cv-01652
(S.D.N.Y., Feb. 28, 2022) arises from the Defendants' alleged
violations of the Fair Labor Standards Act and the New York Labor
Law for unpaid minimum and overtime wages, unpaid spread of hours
compensation, and failure to provide wage notices and statements.
The Plaintiff was employed as a general assistant at the
Defendants' clothing stores in New York from May 16, 2019 until
December 21, 2021.
The Defendants own, operate, and control a clothing store located
in New York under the name "Linens R Us."[BN]
The Plaintiff is represented by:
Catalina Sojo, Esq.
CSM LEGAL, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
EXPERIAN INFORMATION: Dismissal of Tailford Amended Suit Affirmed
-----------------------------------------------------------------
In the case, THERESA TAILFORD; SANFORD BUCKLES; JEFFREY C.
RUDERMAN, and all similarly situated individuals,
Plaintiffs-Appellants v. EXPERIAN INFORMATION SOLUTIONS, INC.,
Defendant-Appellee, Case No. 20-56344 (9th Cir.), the U.S. Court of
Appeals for the Ninth Circuit issued an Opinion:
a. affirming the district court's denial of the Plaintiffs'
motion to remand to state court; and
b. affirming the district court's dismissal with prejudice of
the Plaintiffs' First Amended Complaint ("FAC").
I. Background
Plaintiffs Theresa Tailford, Sanford Buckles, and Jeffrey C.
Ruderman, appeal from the denial by the U.S. District Court for the
Central District of California of their motion to remand to state
court their class action suit alleging violations of the Fair
Credit Reporting Act ("FCRA"), 15 U.S.C. Section 1681 et seq. The
Plaintiffs contend that Experian failed to show that Plaintiffs
have Article III standing and further contend that the district
court erred in dismissing with prejudice the Plaintiffs' first
amended complaint for failure to state a claim.
Experian is a credit reporting agency that collects traditional
consumer credit data. It stores the collected consumer credit data
in a database called "File One." This data includes information
about credit accounts, creditors, debts, and credit inquiries.
Experian uses its File One database to respond to credit inquiries
made under Section 1681g of the FCRA, but in doing so does not
include information from its internal-only "Admin Reports." The
Admin Report summarizes all the information Experian has on each
consumer. Experian also gathers this behavioral data in a marketing
database called "ConsumerView."
The ConsumerView database contains data on thousands of attributes
on more than 300 million consumers and 126 million households,
including age, gender, marital status, presence of children,
homeowner status, education, and occupation." Experian sells this
information to affiliates and third parties through a product
called "OmniView. Experian's marketing materials indicate that
OmniView may be used to "target candidates for invitations to apply
for credit."
In late 2017, a data breach in an Amazon cloud storage location
revealed information on millions of households in a spreadsheet
titled "ConsumerView_10_2013.yxdb." The Plaintiffs allege that this
information was placed in cloud storage by data analytics company
Alteryx, Inc. that allegedly bought it from Experian.
Following this breach, each of the three Plaintiffs requested and
received from Experian various Section 1681g disclosures. The
Plaintiffs contend these disclosures were incomplete. Theys do not
allege that Experian failed to include in its Section 1681g
disclosures any the information in its File One database responsive
to their requests. They do contend, however, that Experian failed
to include in its Section 1681g disclosures several pieces of
information they allege Experian was required by the FCRA to
provide, including behavioral data from its ConsumerView database,
inquiries from third parties and affiliates, the identity of
certain parties who procured consumer reports, and the date on
which employment data was reported.
The Plaintiffs sought to remedy Experian's alleged violation of the
FCRA by joining a putative class action initially filed by Terry
Carson before the U.S. District Court for the Central District of
California, alleging violations of Section 1681g(a)(1), (3), (5),
and Section 1681e(b) of the FCRA -- Carson v. Experian Info. Sols.,
Inc., No. 8:17-cv-02232-JVS-KES, 2019 U.S. Dist. LEXIS 118387, at
*2-3 (C.D. Cal. July 9, 2019.
In that action, Experian filed a motion to dismiss, a motion for
judgment on the pleadings, and a motion to stay discovery. The show
how Defendant's alleged violation of the FCRA amounted to more than
a 'bare procedural violation,'" and thus did not plead "a concrete
injury sufficient to confer Article III standing to bring their
Section 1681g claims." The district court also granted in part the
motion for judgment on the pleadings and dismissed the motion to
stay discovery as moot. The Plaintiffs did not appeal Carson.
Instead, the Plaintiffs filed a separate class action suit in state
court, again alleging violations of Section 1681g. Experian, in a
turnabout from the position it took in Carson, removed the case to
the Central District. Experian then filed a motion to dismiss the
Original Complaint for failure to state a claim. Plaintiffs
countered with a motion for remand to state court.
Judge Selna denied the Plaintiffs' motion, holding that removal
under Section 1441 was proper. Judge Selna also granted Experian's
motion to dismiss, holding that none of the information missing
from the Section 1681g disclosures sent to the Plaintiffs was
required to be disclosed under the FCRA. Judge Selna then allowed
the Plaintiffs leave to amend.
The case was reassigned to Judge Carney. The Plaintiffs filed a
FAC, in which they repeated and expanded their original allegations
and added a stand-alone claim that Experian violated Section 1681b
by sharing consumer report information for non-authorized marketing
purposes. Experian again filed a motion to dismiss for failure to
state a claim. TThis time, the district court dismissed the FAC
with prejudice.
The Plaintiffs appealed the denial of their motion to remand and
the dismissal for failure to state a claim.
II. Discussion
A.
All parties agree that because the case arises out of a
well-pleaded complaint alleging a violation of a federal law, there
is federal question jurisdiction in the district courts under 28
U.S.C. Section 1331 and Section 1441. The Plaintiffs argue,
however, that Experian failed to satisfy its burden of establishing
Article III standing. The Ninth Circuit notes that the Plaintiffs
did not file a motion to dismiss for lack of standing and do not
actually argue that standing does not exist, just that Experian
failed to meet its burden to show the Plaintiffs' standing in its
motion to remove this case from state to federal court.
The Ninth Circuit concludes that the allegations of injury to the
Plaintiffs' informational and privacy interests as recited in the
FAC are sufficiently concrete to support Article III standing at
this pleading stage. The district court's denial of the Plaintiffs'
motion to remand to state court is affirmed.
B.
The Plaintiffs contend that the district court erred in granting
Experian's motion to dismiss. They argue that various combinations
of Section 1681g(a)(1), (3), and (5) require that "all information"
in a consumer's file must be disclosed when requested and that four
specific categories of data should have been included in Experian's
Section 1681g disclosures: ConsumerView data and the identity of
parties receiving that information, soft inquiries by third
parties, the identity of all parties procuring credit reports
(including Experian affiliates), and the date on which employment
dates were reported. Experian responds that its Section 1681g
disclosures were in full compliance with the FCRA and that nothing
required was omitted.
The Ninth Circuit holds that none of the information the Plaintiffs
contend Experian failed to include in its Section 1681g disclosures
is subject to disclosure under Section 1681g(a)(1), (3) or (5),
considered individually or in combination. First, it finds that
none of the information the Plaintiffs contend Experian failed to
disclose is of the type that has been included in a consumer report
in the past or is planned to be included in such a report in the
future. Second, the Plaintiffs failed to sufficiently plead a
violation of Section 1681g(a)(5) based on the non-disclosure of the
Loanme and Credit One Bank inquiries. Third, the Plaintiffs have
thus failed to sufficiently allege a violation of the FCRA based on
Experian's information sharing with its affiliates or Alteryx.
Fourth, the date on which employment was reported to Experian is
not part of the consumer's "file" and need not be disclosed.
III. Conclusion
For these reasons, the Ninth Circuit affirmed the district court's
denial of the Plaintiffs' motion to remand to state court and its
dismissal with prejudice of the Plaintiffs' first amended complaint
for failure to state a claim.
A full-text copy of the Court's March 1, 2022 Opinion is available
at https://tinyurl.com/ycxy7duz from Leagle.com.
Robert S. Green (argued) -- gnecf@classcounsel.com -- James Robert
Noblin -- jrn@classcounsel.com -- and Emrah M. Sumer, Green &
Noblin P.C., in Larkspur, California, for the
Plaintiffs-Appellants.
Meir Feder (argued) -- mfeder@jonesday.com -- and Kelly C. Holt --
kholt@jonesday.com -- Jones Day, in New York City; John A. Vogt and
Ryan D. Ball, Jones Day, in Irvine, California, for the
Defendant-Appellee.
FACTUAL DATA: Faces Steinberg Suit Over False Consumer Reports
--------------------------------------------------------------
MARLENE STEINBERG, individually and on behalf of all others
similarly situated, Plaintiff v. FACTUAL DATA, INC., Defendant,
Case No. 220202692 (Pa. Ct. Com. Pl., Philadelphia Cty., Feb. 25,
2022) is a class action brought by the Plaintiff against Defendant
under the Fair Credit Reporting Act, for falsely reporting that
consumers are deceased, even when it has clear evidence in its
possession that the individuals in question are very much alive.
According to the complaint, this false reporting has devastating
consequences for individuals who are misreported as dead. Credit
bureaus will not issue credit scores on deceased consumers, meaning
that someone who is being falsely reported as deceased is unable to
obtain credit.
The Plaintiff was unaware that mortgage servicer LoanCare had
reported her as deceased instead of her husband, who had passed
away in January 2013. Factual Data's tri-merge credit report did
not return a score for Plaintiff from consumer reporting agency
Equifax because Equifax indicated that Plaintiff was deceased.
Because of Factual Data's false reporting of the deceased notation,
Plaintiff's application for a mortgage was denied. Had Plaintiff
been approved, she would have lowered her mortgage payments by
hundreds of dollars per month, the suit contends.
Factual Data is credit reporting agency that provides merged credit
reports for the mortgage lending industry.[BN]
The Plaintiff is represented by:
Shanon J. Carson, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-4656
Facsimile: (215) 875-4604
E-mail: scarson@bm.net
FEDERAL RESERVE BANK: Charlton Files Suit in Cal. Super. Ct.
------------------------------------------------------------
A class action lawsuit has been filed against Federal Reserve Bank
of San Francisco, et al. The case is styled as Cheryl Charlton,
individually, and on behalf of other members of the general public
similarly situated v. Federal Reserve Bank of San Francisco, Does 1
through 50, Inclusive, Case No. CGC22598257 (Cal. Super. Ct., San
Francisco Cty., Feb. 18, 2022).
The case type is stated as "Other Non-Exempt Complaints."
The Federal Reserve Bank of San Francisco -- https://www.frbsf.org/
-- is the federal bank for the twelfth district in the United
States.[BN]
The Plaintiff is represented by:
Jonathan Genish, Esq.
BLACKSTONE LAW
8383 Wilshire Blvd., Ste. 745
Beverly Hills, CA 90211-2442
Phone: 855-786-6355
Fax: 855-786-6356
Email: jgenish@blackstonepc.com
FREEDOM HOME: Whittaker Files TCPA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Freedom Home Loans,
LLC. The case is styled as Brenda Whittaker, individually and on
behalf of all others similarly situated v. Freedom Home Loans, LLC,
Case No. 1:22-cv-00526 (S.D.N.Y., March 2, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Freedom Home Loans LLC -- https://freedomhl.com/ -- was founded in
2008. The Company's line of business includes originating mortgage
loans, selling mortgage loans to permanent investors, and servicing
loans.[BN]
The Plaintiff is represented by:
Taylor True Smith, Esq.
WOODROW & PELUSO LLC
3900 East Mexico Avenue, Suite 300
Denver, CO 80210
Phone: (720) 907-7628
Email: tsmith@woodrowpeluso.com
FRICKENSCHMIDT FOODS: Adewol Files Mislabeling Class Action
-----------------------------------------------------------
Oluwakemi Adewol, on behalf of herself and all others similarly
situated, Plaintiff v. Frickenschmidt Foods LLC, Defendant, Case
No. 4:22-cv-00254-NCC (E.D. Mo., Feb. 28, 2022) seeks to remedy the
deceptive and misleading business practices of the Defendant with
respect to its marketing and sales of its Wicked Cutz Teriyaki Beef
Stick throughout the U.S. in violation of the Maryland Consumer
Protection Act and the State Consumer Protection Statutes.
According to the complaint, the Defendant sells its Wicked Cutz
products in an attempt to capitalize on consumer demand for
health-focused and "gluten free" foods. However, as Defendant
knows, its "gluten free" products actually contain gluten.
Allegedly, the statement on Defendant's products' labels claiming
that the products are "gluten free" is false, misleading, and
designed to deceive consumers into paying a price premium and
choosing Defendant's products over a competitor's product.
The Plaintiff purchased the Defendant's Products on multiple
occasions within the past year. Most recently, she made multiple
purchases of the Products in January 2022 and February 2022.
Frickenschmidt Foods LLC produces, markets and distributes food
products in retail stores across the U.S.[BN]
The Plaintiff is represented by:
Steffan T. Keeton, Esq.
THE KEETON FIRM LLC
100 S Commons, Ste. 102
Pittsburgh, PA 15212
Telephone: (888) 412-5291
E-mail: stkeeton@keetonfirm.com
GAUGHAN ENTERPRISES: Newbre Sues Over Fraudulent Rental Scheme
--------------------------------------------------------------
Jayme Newbre, Rosanna Reynolds, and Fatima Johnson, on behalf of
themselves and others similarly situated, and African Career,
Education, and Resource Inc., a Minnesota Nonprofit Corporation,
Plaintiffs v. Gaughan Enterprises, Inc., dba Gaughan Companies, and
Victoria Townhouses, LP, Defendants, Case No. 27-CV-22-2378 (Minn.
4th Judicial Dist. Ct., Hennepin Cty., Feb. 25, 2022) arises from
the Defendants' pattern and practice of providing discriminatory
treatment of the predominately African-American and
African-immigrant tenant community at Victoria Townhomes in
violation of the Tenant Remedies Action, the Minnesota Consumer
Fraud Act, the Minnesota Deceptive Trade Practices Act, and the
Minnesota Human Rights Act.
According to the complaint, Defendant Gaughan operates an apartment
complex in Brooklyn Center -- Victoria Townhomes -- that lost its
rental license over seven months ago because of its dreadful
history of health and safety code violations. Brooklyn Center's
Building Occupancy and Maintenance Code Section 12-901 is
unequivocal that "No person shall operate a rental dwelling without
first having obtained a license to do so from the City of Brooklyn
Center." However, Gaughan has allegedly chosen to directly violate
this law by continuing to operate Victoria Townhomes while
deceiving tenants, including Plaintiffs, into paying rent for
unlicensed rental dwellings that continue to deteriorate.
The complaint further asserts that when tenants at Victoria Homes
complain about poor living conditions or apply for emergency rental
assistance to pay for rent that Gaughan should not be charging,
Gaughan retaliates against them with lease nonrenewals, moveout
notices, and eviction actions.
The Plaintiffs, who belong to the predominately African-American
and African-immigrant tenant community at Victoria Townhomes, seek
to put an end to Gaughan's fraudulent and discriminatory rental
practices, and to remedy the harm that Gaughan has done to them and
the public, asserts the complaint.[BN]
The Plaintiffs are represented by:
James W. Poradek, Esq.
Shana L. Tomenes, Esq.
HOUSING JUSTICE CENTER
Northwestern Building
275 East Fourth Street, Suite 590
Saint Paul, MN 55101
Telephone: (612) 723-0517
E-mail: jporadek@hjmcmn.org
stomenes@hjcmn.org
GENERAL DYNAMIC: Court Grants Class Certification in WARN Lawsuit
-----------------------------------------------------------------
Carissa Davis, Esq., of Sherman & Howard L.L.C., in an article for
JD Supra, reports that in Piron et al. v. General Dynamic
Information Technology, Inc., Case 3:19-cv-00709-REP, the United
Stated District Court for the Eastern District of Virginia, granted
class certification for a Worker Adjustment and Retraining
Notification ("WARN") Act claim brought by remote employees.
The plaintiffs in this case were remote workers who were covered
under a Flexible Work Location policy, which stated that "employees
may work some or all of the work week in a company-provided office
setting, co-located with customers, or from an alternative location
(generally the employee's home)." The employees were required to
move from point to point to conduct their work duties, and the
company's expense reports showed frequent reimbursements for
travel. Plaintiffs were laid off and filed suit against the
company, alleging the company failed to provide the WARN Act
notification. Plaintiffs moved for class certification.
The WARN Act requires, among other things, employers to provide at
least 60 days' notice prior to a mass layoff. "Mass layoff" is
defined as a reduction in a workforce at a single site of
employment that impacts at least 33 percent of the employees and a
minimum of 50 employees in a 30-day period. The WARN Act does not
define the term "single site of employment," but the regulations
provide that a single site of employment is "either a single
location or a group of contiguous locations." The regulations
further provide that for mobile workers, workers whose primary
duties require travel from point to point, such as sales persons,
the single site of employment will be their "home base, from which
their work is assigned, or to which they report[.]"
The company opposed class certification, arguing that plaintiffs
could not establish that common questions of law or fact
predominate over any questions affecting only individuals, a
requirement for class certification. Specifically, the company
argued the plaintiffs were not mobile workers that worked at a
single site of employment. The court rejected the company's
argument, holding that Plaintiffs had adequately met the
predominance prong by showing that their job duties and place of
reporting were similar. The court, however, made clear that the
company could still dispute the single site of employment
requirement at the summary judgment stage.
The lesson? For many industries, remote work and mass layoffs have
been/are ubiquitous in the post-pandemic world. More likely than
not, a company has not considered its remote workforce in making
prior WARN Act decisions, and the rise of remote workforces may
drastically shift the number of employees that could be considered
to report to a "single site of employment." With the changing
workforce, and developments in cases like Piron, employers should
consult with experienced employment counsel prior to making layoff
decisions. Even a well-meaning employer could face costly defense
fees, which can be particularly high when defending against a class
action. [GN]
GOLI NUTRITION: Chiarappa Sues Over Mislabeled ACV Gummy Products
-----------------------------------------------------------------
RELLA CHIARAPPA, on behalf of herself and all others similarly
situated, Plaintiff v. GOLI NUTRITION INC., a Delaware Corporation,
Defendant, Case No. 6:22-cv-00428-WWB-GJK (M.D. Fla., Feb. 28,
2022) arises from the Defendant's unfair, unlawful, and fraudulent
representation of its apple cider vinegar gummy products in
violation of Florida's Deceptive and Unfair Trade Practices Act.
According to the complaint, the Defendant claims on their website
(http://goli.com)that ACV has many purported benefits such as:
supporting healthy digestion, helping manage weight, helping body
detoxify, boosting immunity, enhancing energy, and a healthy heart.
Defendant further claims on the product's label and website, that
two Goli ACV Gummies are equal to one shot of ACV.
The complaint alleges that the Defendant intentionally misleads
consumers by mischaracterizing their studies as containing lower
amounts of ACV as being effective, but these studies actually gave
participants isolated acetic acid. For instance, Defendant says,
participants took 750mg to 1500mg of ACV when they actually were
given 750-1500mg of acetic acid. This is far above the levels of
acetic acid contained within two of the gummy products, says the
suit.
The Plaintiff and Class members would not have purchased the
product, or would have not paid as much for the product, had they
known the truth about the mislabeled and falsely advertised
products.
Goli Nutrition Inc. is a nutrition company offering apple cider
vinegar gummies.[BN]
The Plaintiff is represented by:
William C. Wright, Esq.
WILLIAM WRIGHT
The Wright Law Office
515 N. Flagler Drive Suite P-300
West Palm Beach, FL 33410
Telephone: (561) 514-0904
E-mail: willwright@wrightlawoffice.com
- and -
Daniel Faherty, Esq.
TELFER, FAHERTY, & ANDERSON
815 S. Washington Avenue Suite 201
Titusville, FL 32780
Telephone: (321) 269-6833
Facsimile: (321) 383-9970
E-mail: danfaherty@hotmail.com
GOLO LLC: Fischler Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Golo LLC. The case is
styled as Brian Fischler, individually and on behalf of all other
persons similarly situated v. Golo LLC, Case No. 1:22-cv-01119
(S.D.N.Y., March 2, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
GOLO -- https://www.golo.com/ -- is a pioneering wellness solutions
company that empowers individuals by helping them take control of
their personal health.[BN]
The Plaintiff is represented by:
Christopher Howard Lowe, Esq.
LIPSKY LOWE LLP
420 Lexington Avenue, Suite 1830
New York, NY 10170
Phone: (212) 764-7171
Email: chris@lipskylowe.com
GOVERNMENT EMPLOYEES: Denial of Prudhomme's Class Cert. Bid Upheld
------------------------------------------------------------------
In the lawsuit styled ERIC PRUDHOMME, individually and on behalf of
others similarly situated; Elvin Jack, individually and on behalf
of others similarly situated, Plaintiffs-Appellants v. GOVERNMENT
EMPLOYEES INSURANCE COMPANY; GEICO GENERAL INSURANCE COMPANY,
Defendants-Appellees, Case No. 21-30157 (5th Cir.), the United
States Court of Appeals for the Fifth Circuit affirms the district
court's denial of class certification.
In the appeal of the district court's denial of class
certification, the Appellants are a group of GEICO customers in
Louisiana, who received payouts for total-loss automobile claims.
These customers allege GEICO's proprietary valuation system
violated La. R.S. 22:1892B(5) and LA. R.S. 22:1973(A), (B)(5), but
their suit veered off the road at the class-certification stage.
The district court concluded that the Appellants' proposed class
failed for want of commonality, adequacy, and predominance. Because
the district court did not abuse its discretion in denying class
certification based on its adequacy concerns, the Court of Appeals
affirms without comment on commonality or predominance, citing Bell
Atl. Corp. v. AT&T Corp., 339 F.3d 294, 303 (5th Cir. 2003).
The Federal Rules of Civil Procedure require that the
representative parties in a class-action will fairly and adequately
protect the interests of the class (Fed. R. Civ. P. 23(a)(4)).
Consistent with this obligation, the district court questioned
whether the Appellants' theory of liability was, in fact,
beneficial to the proposed class. It was not, the Appellate Court
notes. Indeed, a portion of the proposed class members received
payments above (that is, benefitted from) the allegedly unlawful
valuation.
According to the Court of Appeals' Opinion, this undermined the
Appellants' class-wide theory of liability and, thereby, doomed
adequacy. Neither is the Panel compelled by the Appellants'
belated, remedial assertion that class members, who received
overpayments were hypothetically entitled to other damages under
Louisiana law. Even if true, this does little more than raise
uncontemplated impediments to certification--like typicality, see
Fed. R. Civ. P. 23(a)(3). The Appellants simply offer too little,
too late.
The Appellants' remaining arguments are equally unavailing,
according to the Opinion. For one, the Appellants suggest cases
like Mitchell v. State Farm Fire & Cas. Co., 954 F.3d 700 (5th Cir.
2020), or Stuart v. State Farm, 910 F.3d 371 (8th Cir. 2018),
involved adequacy. They did not.
Likewise, the Court of Appeals finds that the Appellants'
invocation of Slade v. Progressive, 856 F.3d 408, 412 (5th Cir.
2017) is inapt. Nary a word of Slade supports the notion that class
representatives can shoulder a theory of liability that
disadvantages a portion of the class they allegedly represent. Nor
did the Court of Appeals insinuate in Slade that a lower court errs
by failing to sua sponte remediate intra-class conflicts through
opt-out. The Appellants' belief otherwise is mistaken.
Affirmed.
A full-text copy of the Court's Opinion dated Feb. 21, 2022, is
available at https://tinyurl.com/ykae8kyp from Leagle.com.
GREAT LAKES: Court Dismisses Lyons, Gallagher and Stockbine Suits
-----------------------------------------------------------------
In the cases, SIENNA LYONS, et al., Plaintiffs v. GREAT LAKES
EDUCATIONAL LOAN SERVICES, INC., et al., Defendants. VICTORIA
GALLAGHER, et al., Plaintiffs v. NAVIENT CORPORATION, et al.,
Defendants. GARY STROCKBINE, et al., Plaintiffs v. PENNSYLVANIA
HIGHER EDUCATION ASSISTANCE AGENCY a/k/a PHEAA d/b/a FEDLOAN
SERVICING, Defendant, Case Nos. 1:21-cv-01047, 1:21-cv-01052,
1:21-cv-09096 (D.N.J.), Judge Christine P. O'Hearn of the U.S.
District Court for the District of New Jersey grants the Joint
Motion to Dismiss the Class Action Complaints.
I. Background
Before the Court is the Joint Motion to Dismiss in three separately
filed actions (Case No. 21-01047 ("Lyons"); Case No. 21-01052
("Gallagher"); Case No. 21-09096 ("Strockbine")) by Defendants
Navient Corp. and Navient Solutions LLC (collectively, "Navient"),
Great Lakes Educational Loan Services, Inc., Nelnet Diversified
Solutions, LLC, Nelnet Servicing, LLC, and Nelnet, Inc.
(collectively, "Nelnet"), and Pennsylvania Higher Education
Assistance Agency, also known as PHEAA, doing business as FedLoan
Servicing, seeking to dismiss the three Class Action Complaints
filed by Sienna Lyons, Danielle Labella, Saundra O'Donnell
(together, the "Lyons Plaintiffs"), Victoria Gallagher and Megan
O'Donnell (together, the "Gallagher Plaintiffs"), and Gary
Strockbine, Sean Maher, and Rachel Ann Philbin (the "Strockbine
Plaintiffs").
These cases are three separately-filed putative class actions
brought by several federal student loan borrowers against multiple
federal student loan servicers alleging that the loan servicers
wrongfully allocated the Plaintiffs' payments made on their federal
student loans after the Coronavirus Aid, Relief, and Economic
Security Act ("CARES Act") was passed in March 2020.
On Jan. 22, 2021, the Lyons Plaintiffs filed a class action
complaint against Defendants Great Lakes and Nelnet asserting
claims for breach of contract, tortious interference with a
business relationship, negligent misrepresentation, unjust
enrichment, negligence, violations of the New Jersey Consumer Fraud
Act (the "NJCFA") and seeking declaratory judgment and injunctive
relief.
On Jan. 22, 2021, the Gallagher Plaintiffs filed a class action
complaint asserting the same claims against the Navient Defendants
as were asserted in the Lyons Case.
On April 13, 2021, the Strockbine Plaintiffs filed a class action
complaint against PHEAA asserting the same claims as those in the
Lyons and Gallagher Cases, and also asserting claims for violation
of the Pennsylvania Unfair Trade Practices and Consumer Protection
Law (the "UTPCPL").
Given the overlapping allegations and issues presented in all three
cases and the Defendants' expressed intention to each file a motion
to dismiss in each case, the Court entered a briefing schedule
whereby the Defendants filed a Joint Motion to Dismiss, and the
Plaintiffs filed a Joint Response in Opposition, to which the
Defendants filed a Joint Reply.
In their Joint Motion to Dismiss, the Defendants argue that the
Complaints must be dismissed under Federal Rule of Civil Procedure
12(b)(1) because the Plaintiffs lack Article III standing as they
have not suffered an injury in fact, and therefore, the Court lacks
subject matter jurisdiction. The Defendants also argue that the
Plaintiffs have failed to state cognizable claims under Rule
12(b)(6) and moved to strike the Plaintiffs' class allegations
under Rule 12(f) and Rule 23(d)(1)(D).
II. Analysis
In their Joint Motion to Dismiss, the Defendants argue under Rule
12(b)(1) that the Plaintiffs fail to bear their burden of
establishing that the Court has subject matter jurisdiction because
the Complaints present no justiciable case or controversy. The
Defendants assert that regardless of how the Plaintiffs'
prepayments were allocated across their respective loans by the
Defendants, the Plaintiffs cannot allege a cognizable injury to
date as no interest is accruing; and therefore, it would be
impossible for the Plaintiffs to have paid any additional amount in
principal or interest to date. The Defendants argue that the
Plaintiffs' alleged future injury, that they will pay more in
interest over the life of their loans, is too speculative and
indefinite to confer Article III standing at this moment.
In their Response in Opposition, the Plaintiffs do not dispute that
they have not yet paid any interest on their loans that accrued
during the CARES Act Forbearance Period, but argue that the
Defendants' "serial misapplication" of prepayments violates federal
and state law, which is enough to establish "concrete injuries in
fact" sufficient to establish Article III standing. The Plaintiffs
additionally assert that the Defendants' conduct "will result in
borrowers paying more over the life of their loans," and that this
future harm is sufficiently imminent since interest will again
begin to accrue on the Plaintiffs' student loans once the CARES Act
Forbearance Period ends. They further argue that they are entitled
to attorneys' fees under the catalyst theory because they brought
about a change in the Defendants' conduct making them "prevailing
parties."
In their Complaints, the Plaintiffs allege that te Defendants'
misallocation of their prepayments has resulted in two injuries:
(i) "unpaid interest added to the principal balance of loans along
with amounts accrued as a result of the capitalization of same" and
(ii) "financial harm associated with lost progress towards loan
payoff."
A. Plaintiffs Have Not Suffered a Cognizable Past or Present
Injury
Judge O'Hearn opines that the Plaintiffs cannot plausibly allege
that they have suffered any economic harm because their loans are
now and have been continuously frozen in administrative forbearance
during the CARES Act Forbearance Period. She says, the Defendants
correctly highlight that it would be impossible for any unpaid
interest to have been added to the Plaintiffs' loan balances as no
interest has been accruing on the Plaintiffs' federal student loans
while the interest rate has been set to 0% since March 2020. In
their Response in Opposition, the Plaintiffs do not (and cannot)
dispute that they have made no payments on loan interest that
accrued due to the Defendants' proportional payment allocation
method. Instead, they argue that the Defendants' alleged violation
of federal and state law is sufficient to establish Article III
standing in itself. This is incorrect, as the Supreme Court has
held that "an injury in law is not an injury in fact" sufficient to
confer Article III standing.
Therefore, in absence of even any persuasive authority provided by
the Plaintiffs, Judge O'Hearn declines to break new ground by
extending the power to confer constitutional standing to state
legislatures when the Supreme Court has denied that same power to
Congress and where it is not evident to the Court that the
Plaintiffs can state a claim under those state statutes.
Accordingly, without a concrete injury in fact that gives rise to
Article III standing, the Plaintiffs' claims must be dismissed for
lack of standing.
B. Plaintiffs' Alleged Future Injuries Are Too Speculative to
Confer Article III Standing and Are Not Imminent
Likewise, Judge O'Hearn opines that the Plaintiffs' alleged future
injury is too speculative to give rise to Article III standing. She
holds that the Plaintiffs' alleged "lost progress towards loan
payoff" is an alleged future injury -- that the Defendants'
proportional payment allocation method "will result in borrowers
paying more over the life of their loans." She is not convinced
that the alleged future injury will occur the moment that the CARES
Act Forbearance Period expires, and student loan interest again
begins to accrue. As an initial matter, given the continuing nature
of the pandemic and the number of times the CARES Act has been
extended, the date when any interest may begin to accrue is
indeterminate. Further, the future injury would not materialize
until the Plaintiffs have actually paid the interest that would not
have accrued but for Defendants' proportional allocation of a
Plaintiff's prepayment across that the Plaintiff's student loans.
The fact that the Plaintiffs may contact their respective student
loan servicer to have their prepayments refunded or reallocated per
their wishes "stretches" immediacy "beyond the breaking point."
Judge O'Hearn will not conduct mathematical gymnastics to determine
when the Plaintiffs may be required to pay "wrongfully accrued"
student loan interest, nor will the Court issue an advisory opinion
where the Plaintiffs maintain the choice over whether "to subject
themselves" to the future injury, and the future injury may never
occur at all.
C. Plaintiffs' Request for Attorneys' Fees Based on State Law
Claims
Being unable to allege any past or immediate future injury, the
Plaintiffs next argue that if the Defendants changed their conduct
to reallocate prepayments either retroactively or prospectively,
that the Plaintiffs are "prevailing parties" entitled to attorneys'
fees under the catalyst theory, since the Defendants changed their
default payment allocation method "as a direct result of this
litigation."
The Defendants argue that neither the NJCFA nor the UTPCPL apply to
their conduct as they are federal student loan servicers retained
by the DOE to service loans held by the DOE, and therefore, they
have not sold or advertised any merchandise or real estate to
Plaintiffs for their conduct to be regulated by the NJCFA, nor have
they sold any goods or services to the Plaintiffs for their conduct
to fall under the UTPCPL.
Judge O'Hearn is doubtful that the NJCFA applies to federal student
loan servicers and does not find Manetta instructive because the
issue of the statute's applicability was neither argued by the
parties or addressed in that court's ruling. Further, she finds
that the applicability of the UTPCPL to the Defendants' conduct
where the Plaintiffs transacted with the DOE -- not the Defendants
-- to borrow federal student loans is far from clear. She refuses
to reach beyond the Court's jurisdiction, and the Plaintiffs'
request for attorneys' fees is denied as a matter of law.
Having concluded that the Court lacks subject matter jurisdiction
over these actions, Judge O'Hearn will not address the Defendants'
remaining arguments, and the Plaintiffs' Complaints are dismissed
without prejudice.
III. Conclusion
Having considered the parties' arguments, Judge O'Hearn concludes
that the Plaintiffs lack Article III standing to bring their
claims, as they have not suffered an injury in fact, and any
alleged future injury is too speculative to satisfy the
jurisdictional requirements placed on the Court by Article III of
the Constitution. She further concludes that they are not entitled
to attorneys' fees. Therefore, Judge O'Hearn dismisses the
Complaints without prejudice.
A full-text copy of the Court's March 1, 2022 Opinion is available
at https://tinyurl.com/bj68vtpt from Leagle.com.
NOAH AXLER, Anderson Kill, P.C., in Philadelphia, Pennsylvania.
DAVID M. CEDAR, Williams Cedar, LLC, in Haddonfield, New Jersey, On
behalf of Plaintiffs Sienna Lyons, Danielle Labella, Saundra
O'Donnell, Victoria Gallagher, Megan O'Donnell, Gary Strockbine,
Sean Maher, and Rachel Ann Philbin.
JONATHAN SPELLS KRAUSE -- jkrause@klehr.com -- and CORINNE SAMLER
BRENNAN -- cbrennan@klehr.com -- Klehr Harrison Harvey Branzburg,
LLP, in Marlton, New Jersey, On behalf of Defendants Great Lakes
Educational Loan Services, Inc., Nelnet Diversified Solutions, LLC,
Nelnet Servicing, LLC, and Nelnet, Inc.
DAVID G. MURPHY -- dmurphy@reedsmith.com -- and DIANE A. BETTINO --
dbettino@reedsmith.com -- Reed Smith LLP, in Princeton, New Jersey,
On behalf of Defendants Navient Corporation and Navient Solutions
LLC.
STEPHEN M. ORLOFSKY -- stephen.orlofsky@blankrome.com -- Blank Rome
LLP, in Princeton, New Jersey.
BLAIR A. GEROLD -- blair.gerold@blankrome.com -- Blank Rome LLP, in
Philadelphia, Pennsylvania, On behalf of Defendant Pennsylvania
Higher Education Assistance Agency a/k/a PHEAA d/b/a FedLoan
Servicing.
GROUNDWORK COFFEE: Young Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Groundwork Coffee,
LLC, et al. The case is styled as Lawrence Young, on behalf of
himself and all other persons similarly situated v. Groundwork
Coffee, LLC, Groundwork Coffee Holdings, LLC, Groundwork Coffee
Roasters, LLC, Case No. 1:22-cv-01757 (S.D.N.Y., March 2, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Groundwork Coffee -- https://www.groundworkcoffee.com/ -- has been
a certified coffee roaster since 1990 selling certified organic,
fairly traded coffee, organic tea, and home brewing
merchandise.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
GWG HOLDINGS: Girard Sharp Reminds of April 25 Deadline
-------------------------------------------------------
Girard Sharp LLP on Feb. 23 disclosed that it, together with its
co-counsel, Malmfeldt Law Group P.C., filed a proposed class action
lawsuit on February 18, 2022, seeking to represent purchasers of
GWG Holdings, Inc. (Nasdaq: GWGH) L bonds directly in GWGH's L bond
offering pursuant to a June 3, 2020, registration statement.
Commenced on February 18, 2022, the GWGH class action lawsuit --
captioned Bayati, et al. v. GWG Holdings, Inc., et al., No.
3:22-cv-00410 (N.D. Tex.) -- alleges that GWGH and certain of its
directors made misrepresentations and omissions in offering
materials in violation of the Securities Act of 1933.
The plaintiffs are represented by Girard Sharp, which has extensive
experience in prosecuting investor class actions for financial
fraud.
If you suffered losses and wish to serve as lead plaintiff of the
GWGH class action lawsuit, please provide your information by
clicking here. You can also contact attorney Adam Polk of Girard
Sharp by calling (415) 981-4800 or via email at
apolk@girardsharp.com. Lead plaintiff motions for the GWGH class
action lawsuit must be filed with the Court no later than April 25,
2022.
COMPLAINT ALLEGATIONS: Until 2018, GWGH's business was focused on
investment in life insurance policies. GWGH raised capital for the
purchase of life insurance policies in the secondary market
primarily through the sale of L bonds to investors through a
network of securities broker-deal firms. In 2018, GWGH announced a
major shift in its stated purpose: Instead of investing in life
insurance policies, GWGH would invest in The Beneficient Company
Group L.P., an entity founded and controlled by Defendant Brad K.
Heppner, who was Chairman of GWGH's Board of Directors from April
26, 2019 to June 14, 2021.
On or about March 30, 2020, GWGH filed with the Securities and
Exchange Commission a registration statement for an L bond
offering, which became effective on June 3, 2020. In August 2020,
GWGH began offering and selling L bonds pursuant to the June 2020
registration statement. GWGH sold over $350 million of L bonds
between August 2020 and April 2021 in connection with the June 2020
registration statement.
The GWGH class action lawsuit alleges that Defendants made material
misrepresentations and omissions in the June 2020 registration
statement concerning GWGH's use of the net proceeds from the L
bonds offering. Plaintiffs allege that, contrary to representations
in the registration statement, L bond proceeds were neither used to
increase the value of GWGH's assets (alternative or otherwise), nor
to provide an expanded set of products or services for investors,
nor to increase working capital or liquidity, nor to satisfy any
regulatory requirements.
By April 2021, GWGH was forced to discontinue the L bond offering
as it was unable to timely file its 2020 annual report and soon
faced liquidity problems. In November 2021, GWGH disclosed that it
had received an SEC subpoena for documents and information relating
to the offering and its accounting practices, among other areas of
inquiry. GWGH further disclosed that the existence of the
investigation could have a material adverse effect on "the value of
[GWGH's] securities." In February 2022, GWGH announced that it was
unable to continue making payments on L bonds and that the bonds
lacked value on account of GWGH's inability to service them.
THE LEAD PLAINTIFF SELECTION PROCESS: The Private Securities
Litigation Reform Act of 1995 permits any investor who purchased
GWGH's L bonds pursuant to the June 2020 registration statement to
seek appointment as lead plaintiff in the GWGH 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 that class. A lead plaintiff acts
on behalf of all other class members in directing the GWGH class
action lawsuit. The lead plaintiff can select a law firm of his or
her choice to litigate the GWGH class action. An investor's ability
to share in any potential future recovery from the GWGH class
action is not dependent upon serving as lead plaintiff.
ABOUT GIRARD SHARP LLP: Girard Sharp LLP is a national litigation
firm representing plaintiffs in class and collective actions in
federal and state courts. The firm serves individuals, institutions
and business clients in cases involving securities, antitrust,
consumer protection, and whistleblower laws. Our clients range from
individual consumers and small businesses to Fortune 100
corporations and public pension funds. Our attorneys have recovered
over a billion dollars for our clients against some of the nation's
largest corporations, such as Raymond James, Peregrine Financial
Group, and Oppenheimer Funds, in cases arising from securities
fraud, false advertising and other unfair business practices.
Girard Sharp has been distinguished as a Tier 1 law firm for
plaintiffs' class action litigation in the "Best Law Firms" list in
the survey published in U.S. News & World Report's Money Issue.
Law360 named Girard Sharp as one of its Product Liability Groups of
the Year for 2021. In 2020, Girard Sharp was honored with the Daily
Journal's "Top Boutiques in California" award. The National Law
Journal (NLJ) also has named Girard Sharp to its elite "Plaintiffs'
Hot List," a selection of top U.S. plaintiffs' firms recognized for
wins in high-profile cases.
Attorney advertising.
Past results do not guarantee future outcomes.
Services may be performed by attorneys in any of our offices.
Contacts
Girard Sharp LLP
601 California Street, Suite 1400, San Francisco, CA 94108
Adam Polk, (415) 981-4800
apolk@girardsharp.com [GN]
HARTFORD CASUALTY: Connecticut Court Tosses Milton's Amended Suit
-----------------------------------------------------------------
In the case, DR. JEFFREY MILTON, DDS, INC. v. HARTFORD CASUALTY
INSURANCE COMPANY, Civ. No. 3:20CV00640 (SALM) (D. Conn.), Judge
Sarah L. Merriam of the U.S. District Court for the District of
Connecticut granted The Hartford's motion to dismiss.
I. Introduction
The Plaintiff brought the action on May 8, 2020, against The
Hartford. On Oct. 30, 2020, The Hartford answered the Complaint.
The Plaintiff filed an Amended Complaint on April 19, 2021. The
Hartford sought a pre-filing conference with Judge Janet Bond
Arterton, then the presiding judge, asserting that it had grounds
to dismiss the claims against it. After a conference with the
parties, Judge Arterton entered an order permitting the Plaintiff
to file a Second Amended Complaint, and setting a briefing schedule
for The Hartford's motion to dismiss. No Second Amended Complaint
was filed. The Hartford filed the instant Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6) seeking to
dismiss the Amended Complaint in its entirety on June 25, 2021. The
matter was transferred to Judge Merriam on Nov. 1, 2021.
The Plaintiff seeks to proceed with the matter as a Class Action.
Because she finds the Complaint fails to state a claim, Judge
Merriam need not address the class allegations.
II. Background
The Plaintiff "owns and operates Olentangy Pediatric Dentistry,
located in Powell, Ohio." The Defendant "issued Policy No. 40 SBA
PI2050 to Plaintiff Olentangy for a policy period of July 28, 2019
to July 28, 2020, including a Specialty Property Coverage Form,"
which provides coverage for "actual loss of Business Income
sustained due to the necessary suspension of its operations during
the 'period of restoration' caused by direct physical loss or
damage."
In March 2020, the State of Ohio issued orders in response to the
spread of COVID-19 "requiring the cancellation of non-essential or
elective surgeries" and "the closure of non-essential businesses."
As a result of these orders and the spread of COVID-19, the
"Plaintiff was required to drastically reduce operations at its
office, and even to close entirely."
The Plaintiff asserts losses caused by COVID-19 and the related
orders issued by local, state, and federal authorities triggered
the Business Income, Extra Expense, and Civil Authority provisions
of the Hartford Casualty policy. He submitted a claim for loss to
Hartford Casualty under its policy due to the presence of COVID-19
and the Closure Orders, but The Hartford denied that claim. The
Hartford denied the Plaintiff's claim for Business Income Coverage,
Civil Authority Coverage, and Extra Expense Coverage.
III. Discussion
The Hartford asserts that the action should be dismissed in its
entirety on the grounds that: (1) "the policy does not cover losses
caused by a virus;" (2) the "Plaintiff fails to allege any direct
physical loss or damage to property;" and (3) the "Plaintiff is not
entitled to 'civil authority' coverage." The Plaintiff opposes the
motion to dismiss on all grounds, contending that (1) the Virus
Exclusion does not apply; (2) direct physical loss has been alleged
due to the presence of COVID-19 on the premises and the loss of use
of the property; and (3) the Plaintiff has met all requirements for
Civil Authority coverage.
A. Virus Endorsement
1. Virus Exclusion
Judge Merriam begins with the threshold interpretive issue of the
language of the Virus Exclusion. The Plaintiff contends that the
Virus Exclusion is not applicable to this virus.
Judge Merriam finds that the Policy language unambiguously excludes
losses caused by viruses, and COVID-19 is a virus. Because she
finds that the language of the Virus Exclusion is unambiguous, both
Connecticut and Ohio law require the Court to apply the "natural
and ordinary meaning" of the Virus Exclusion. Because COVID-19 was
the cause of the Plaintiff's loss, and COVID-19 is a virus, that
loss is subject to the terms of the Virus Exclusion.
2. Limited Coverage
The Plaintiff further argues that, even if the Virus Exclusion
excludes general coverage, limited coverage is available under
Subsection B.1.f. of the Virus Endorsement.
Judge Merriam explains that for the Plaintiff to be afforded
coverage under Subsection B.1.f., it must show that the losses were
a result of equipment breakdown or a specified cause of loss, which
is defined by the Policy as: "Fire; lightning; explosion, windstorm
or hail; smoke; aircraft or vehicles; riot or civil commotion;
vandalism; leakage from fire extinguishing equipment; sinkhole
collapse; volcanic action; falling objects; weight of snow, ice or
sleet; water damage." The Plaintiff makes no argument, nor could
it, that its losses, admittedly caused by COVID-19, were a result
of equipment breakdown or specified cause of loss.
Furthermore, Subsection B.1.f., even if read in isolation, refers
to a "loss which resulted in 'fungi', wet or dry rot, bacteria or
virus." In other words, Subsection B.1.f. would only apply if the
loss caused the virus. Applied to the case, Judge Merriam holds
that it would mean that the Plaintiff's suspension of operations
and its loss of business income caused COVID-19. The Plaintiff
asserts, as it must, exactly the opposite: That the virus resulted
in the loss, not that the loss resulted in the virus. He "has
failed to state a 'loss which resulted in a virus.'" Accordingly,
there is no basis for coverage under the limited coverage found in
the Virus Endorsement.
B. Direct Physical Loss or Damage
Even if the Plaintiff's policy did not unambiguously exclude losses
caused by COVID-19, the Policy requires that the loss be a result
of "direct physical loss or damage to" his property. The Defendant
asserts that eEven if the Virus Exclusion were not applicable, the
Plaintiff has not stated a plausible claim for Business Income or
Extra Expense coverage because coverage under these provisions is
triggered only where there is 'direct physical loss of or physical
damage to' property at the premises insured by the Policy, and only
during a 'period of restoration.'"
The Plaintiff responds that it "has stated a plausible claim under
the Business Income and Extra Expense provisions of the Policy
because he has sufficiently alleged 'direct physical loss of or
physical damage to' his Covered Property." Specifically, he asserts
that it "pled the presence of COVID-19 at its property and that his
property was rendered unduly dangerous and unusable for its
intended use," thus "adequately alleging physical damage and
loss."
Judge Merriam agrees that the Plaintiff's allegations that COVID-19
was present in the ambient air and on the surfaces of its property
are not sufficient to allege direct physical loss or damage to that
property. The Plaintiff's argument that the reconfigurations he
made to its property constitute direct physical loss or damage are
not sufficient to allege direct physical loss or injury. The
Plaintiff's mitigation efforts were not related to any physical
loss or damage to the property.
Judge Merriam likewise finds that any alterations the Plaintiff
made in an effort to slow the spread of COVID-19 among persons at
the premises do not constitute direct physical loss or damage.
Accordingly, because the Plaintiff has failed to allege any facts
supporting its claim that the insured property suffered a direct
physical loss or damage, he is not entitled to the Business Income
or Extra Expense coverage under the Policy.
C. Civil Authority Coverage
Finally, the Defendant asserts that the Plaintiff is not eligible
for Civil Authority Coverage because (1) the Plaintiff does not
allege a Covered Cause of Loss (because virus-related losses are
excluded), nor can it demonstrate harm to any property; (2) the
Plaintiff does not allege that it was specifically prohibited from
accessing its business premises; and (3) the orders of civil
authority were issued to address the future spread of coronavirus
to people, not because of existing property damage or loss.
The Plaintiff responds that Civil Authority Coverage applies
because it requires only "that the civil authority orders forbid
customers and employees from using Covered Property for their
intended purposes."
As she has concluded that (1) the Plaintiff's loss is excluded
under the Virus Exclusion, and (2) that he did not suffer any
direct physical loss or physical damage, Judge Merriam holds that
the Civil Authority Coverage does not apply. Still, even if the
Plaintiff were eligible for Business Income coverage, the Civil
Authority Coverage provides coverage only when access to the
premises is "prohibited by order of a civil authority as the direct
result of a Covered Cause of Loss to property in the immediate area
of" the insured property. The Plaintiff provides no support for its
conclusory assertion that this coverage includes being forbidden to
use the property for its intended use, rather than being forbidden
to sue the property for any use. Nor would this reading be
consistent with the plain language of the Policy. Accordingly, the
Plaintiff is not eligible for Civil Authority Coverage under the
Policy.
IV. Conclusion
For the reasons she stated, Judge Merriam granted the Defendant's
Motion to Dismiss. The Clerk will close the case.
A full-text copy of the Court's March 1, 2022 Ruling is available
at https://tinyurl.com/yckrfz48 from Leagle.com.
HARTFORD HEALTHCARE: Faces Class Action Over Price Increases
------------------------------------------------------------
Ellen Andrews, Ph.D., writing for CT News Junkie, reports that a
new lawsuit filed recently alleges that Hartford Healthcare is
manipulating the healthcare market to drive out competition and
raise prices for their services, despite their lower quality.
The class action, brought by six brave Connecticut residents,
highlights the harm done to all of us. Ultimately, consumers pay
all the bills through our out-of-pocket costs, premiums, taxes, and
lost wages. There is overwhelming evidence that consolidation
raises prices while doing nothing to improve quality.
This class action is part of a small but growing national movement
of consumers opposing healthcare market consolidation. Federal
regulators are stepping in to protect competition, to limit price
increases, and to protect overwhelmed hospital workers.
Connecticut's healthcare market has grown increasingly consolidated
as health systems purchase more hospitals and other healthcare
providers. Accelerated by COVID pressures, more physician practices
are joining large health systems across the state. Earlier in
February Yale New Haven announced plans to acquire three more
hospitals to add to the four Connecticut hospitals they now own.
Despite having the most protective laws in the nation, Connecticut
state regulators have done very little to stop consolidation,
approving the vast majority of merger applications.
The class action claims that Hartford Healthcare has used its
monopoly market power in some areas of the state to force insurers
to include them in their networks, even in areas where there are
less costly, higher-quality options for care. As must-have
facilities and practices, they can charge whatever they want across
the network. According to the plaintiffs, Hartford Hospital
routinely charges over 20% more than other area hospitals for the
same services. The cost of Hartford Hospital Emergency Room visits
range from 50% to 300% higher than at St. Francis, just two miles
away.
According to the complaint, Hartford Healthcare is using
anti-competitive contract clauses to inflate their prices.
Legislators heard about these anti-competitive practices from
national experts in a September forum, and how other states are
prohibiting them to control costs. Advocates are urging Connecticut
policymakers to pass legislation prohibiting anti-competitive
contract clauses.
Aside from the new lawsuit in Connecticut, consumers across the US
are exerting their power in response to increasing consolidation.
Two lawsuits have been filed in North Carolina and another in
California has entered the jury phase of the trial. In Rhode
Island, the FTC has intervened in a consolidation proposal on
behalf of consumers and also hospital workers. The latter is
because nurses and other clinical staff are facing extreme stress
from violent patients, overwork, and understaffing by hospital
administrators to the point of being concerned that they will lose
their licenses. As health systems take over competitors, burned-out
staff have nowhere else to work.
Large Connecticut hospitals and health systems are making money,
even during the pandemic. In 2020 Connecticut hospitals showed a
2.6% profit while the overall US economy shrank 3.4%. But the
quality of care at Connecticut hospitals needs improvement.
Connecticut hospitals earn an average of 3.5 out of 5 quality stars
from Medicare Compare, and all of our state's hospitals have been
penalized this year for too many patients being readmitted. Rather
than trying to corner the market, Connecticut hospitals should
remember their purpose and stop escalating prices we can't afford.
[GN]
HUNTINGTON NEIGHBORHOOD: Judgment on Pleadings Issued in Rojas Suit
-------------------------------------------------------------------
In the case, DONNA ROJAS, et al., Plaintiffs v. HUNTINGTON
NEIGHBORHOOD ASSOCIATION, et al., Defendants, Case No. DLB-21-28
(D. Md.), Judge Deborah L. Boardman of the U.S. District Court for
the District of Maryland granted the Plaintiffs' counsel's motions
for judgment on the pleadings as to the third-party complaint and
sanctions against A&L for filing it.
I. Background
Since 2017, homeowners who signed confessed judgment promissory
notes to avoid collection actions for unpaid homeowner association
dues have challenged the legality of the notes. The purported class
action was brought on behalf of several homeowners against their
homeowner associations ("HOAs") and the counsel for the HOAs who
drafted and benefited from the promissory notes -- Andrews &
Lawrence Professional Services, Torin Andrews, and Kary Lawrence
(together, "A&L"). The Plaintiffs have settled their claims against
every HOA except Huntington Neighborhood Association, Inc.
Huntington, A&L, and Maredith Management, LLC, a management company
working with A&L and Huntington, are the only remaining
Defendants.
In a bold move, A&L, who represent themselves in the action, filed
a third-party complaint against the Plaintiffs' counsel of record,
Richard Gordon, Gordon, Wolf & Carney, Chtd., Alexa E. Bertinelli,
and Civil Justice, Inc. (together, "Plaintiffs' counsel" or
"Third-Party Defendants"). A&L alleges the Plaintiffs' counsel --
by virtue of their alleged solicitation and representation of the
homeowners—committed civil conspiracy and intentional
interference with contract.
The Plaintiffs' counsel moved for judgment on the pleadings as to
the third-party complaint and sanctions against the A&L Defendants
for filing it. The parties fully briefed the motions. A hearing is
not necessary.
II. Discussion
A. Motion for Judgment on the Third-Party Complaint
1. Intentional Interference with Contract
The elements of intentional interference with contract are: (1)
intentional and willful acts; (2) calculated to cause damage to the
plaintiffs in their lawful business; (3) done with the unlawful
purpose to cause such damage and loss, without right or justifiable
cause on the part of the defendants (which constitutes malice); and
(4) actual damage and loss resulting.
Judge Boardman opines that A&L has not plausibly alleged a claim
for intentional interference with contract. They generally assert
that the Plaintiffs' counsel, "through intimidation and coercion,
forced" homeowners to attempt to rescind the promissory notes and
payment plan agreements "in order to cancel the valuable
third-party beneficiary rights of A&L." The third-party complaint
is devoid of any allegations supporting an inference that they had
an unlawful purpose, they acted without justification, or their
actions were calculated to cause A&L damages in their lawful
business.
Moreover, A&L fails to state a claim for intentional interference
with contract. A&L does not identify any facts from which the Court
could plausibly infer that the Plaintiffs' counsel acted with an
unlawful purpose when they negotiated settlement agreements with
HOAs that voided promissory notes containing an illegal confessed
judgment clause.
The third-party complaint falls woefully short of alleging a viable
claim for intentional interference with contract. The Plaintiffs'
counsel's motion for judgment as to this claim is granted.
2. Civil Conspiracy
The alleged tortious conduct in the case is a violation of
Maryland's barratry statute, Md. Code Ann., Bus. Occ. & Prof.
Section 10-604. The barratry statute provides, in relevant part,
that, "without an existing relationship or interest in an issue a
lawyer, except as provided in the Rules of Professional Conduct,
may not for personal gain, solicit another person to sue or to
retain the lawyer to represent the person in a lawsuit." Any person
who violates the barratry statute "is guilty of a misdemeanor and
on conviction is subject to a fine not exceeding $1,000 or
imprisonment not exceeding 1 year or both."
The Plaintiffs' counsel argue that barratry cannot be the predicate
tortious conduct for a civil conspiracy claim because barratry is a
crime, not a tort, and the barratry statute does not give rise to a
private cause of action in tort.
Judge Boardman agrees. Because barratry is not a tort, a civil
conspiracy claim based on a violation of the barratry statute
cannot stand. The third-party complaint contains no facts that
plausibly allege barratry. A&L makes the blanket, unsupported
assertion that plaintiffs' counsel solicited homeowners "for the
purpose of their own personal financial gain."
Undeterred, A&L insists that, even if barratry and a violation of
the professional rules of responsibility cannot be predicate torts
for a civil conspiracy claim, their claim for intentional
interference with contract is.
Judge Boardman finds that this argument fails for two reasons.
First, A&L did not plead this theory of civil conspiracy in the
third-party complaint, and as with the tortious interference with
contract claim, A&L cannot amend their pleading through an
opposition brief. Second, even if A&L had alleged civil conspiracy
to commit intentional interference with contract, they have not
plausibly alleged a claim for intentional inference with contract
for the reasons discussed.
The Plaintiffs' counsel's motion for judgment as to the civil
conspiracy claim is granted.
B. Request for Leave to Amend
In their oppositions to the Plaintiffs' counsel's motions, A&L
seeks leave to amend their third-party complaint. A&L has not filed
a motion for leave to amend the third-party party complaint and has
not complied with Local Rule 103.6. Even so, their request to amend
the third-party complaint is denied. An amendment to allege
intentional interference with contract as the tort underlying the
civil conspiracy claim would be futile, because A&L has failed to
state a claim for intentional interference with contract.
Similarly, an amendment to add factual allegations about the
Plaintiffs' counsel's 2019 letters to homeowners to substantiate
A&L's allegations of barratry would be futile, because barratry is
not a tort, and even if it were, sending the letters does not
constitute barratry.
Finally, A&L seeks leave to amend "to allege the invalidity of the
counsel's retainers with the Named Plaintiffs based upon violation
of the Barratry Act and violation of Rules 19-307.3 and 307.1 of
the Maryland Attorneys' Rules of Professional Conduct." They query
whether "if the retainer agreements are invalid, the action must be
dismissed on such grounds." This request to amend fails, Judge
Boardman finds. A&L does not explain how these allegations would
support one of their existing causes of action or a new cause of
action.
Therefore, A&L's request for leave to amend their third-party
complaint is denied.
C. Third-Party Defendants' Motion for Sanctions
The Plaintiffs' counsel filed a motion for Rule 11 sanctions
against A&L for filing a frivolous third-party complaint intended
to interfere with their attorney-client relationship. They ask the
Court to award them reasonable attorneys' fees incurred in filing
the motion for sanctions and the motion for judgment on the
pleadings.
The Court has the discretion to impose sanctions for Rule 11
violations. An attorney violates Rule 11 if "applying a standard of
objective reasonableness, it can be said that a reasonable attorney
in like circumstances could not have believed his actions to be
legally justified."
In the case, Judge Boardman finds that A&L filed a third-party
complaint against the opposing counsel that easily failed to state
a claim. There was no legal or factual basis for the intentional
interference with contract or civil conspiracy claims. In addition,
no reasonable attorney would have believed he was justified in
bringing a civil conspiracy claim where the alleged underlying
tortious conduct was barratry -- a crime, not a tort. And, even if
A&L believed they could extend the law to include such a claim, a
minimal factual inquiry conducted by a reasonable attorney would
have shown that plaintiffs' counsel's alleged conduct did not
amount to barratry. Finally, A&L's insistence that it has a viable
claim against the Plaintiffs' counsel compels the conclusion that
A&L filed the third-party complaint for an improper purpose.
Sanctions, therefore, are appropriate under Rule 11(c)(1) for
filing a pleading in violation of Rule 11(b)(1)-(3). The
Plaintiffs' counsel's motion for reasonable attorneys' fees
incurred in connection with the Rule 12(c) motion and the motion
for sanctions is granted. These fees should deter A&L from bringing
frivolous complaints in the future or needlessly prolonging or
complicating existing litigation.
III. Conclusion
Judge Boardman concludes that A&L fails to state a claim, their
claims are not warranted under existing law, and the baseless
third-party complaint serves only to cause unnecessary delay and to
increase the cost of litigation unnecessarily. Accordingly, the
motion to dismiss, and the motion for sanctions are granted. The
Plaintiffs' counsel will file a petition for attorneys' fees by
March 16, 2022.
A separate order will be issued.
A full-text copy of the Court's March 1, 2022 Memorandum Opinion is
available at https://tinyurl.com/2p84hx84 from Leagle.com.
ILUKA RESOURCES: Impact of Class Action Defence on D&O Discussed
----------------------------------------------------------------
Daniel Wood, writing for Insurance Business Australia, reports that
earlier in February, a judgement was handed down in a shareholder
class action against Iluka Resources. The defendant company was
successful on all counts in what is only the third ever judgement
in a shareholder class action in Australia.
The global law firm Clyde & Co ran the defence for Iluka and has
now mounted the only two entirely successful shareholder class
actions defences in Australia.
"The judgement provides useful guidance on relevant issues but also
shows that shareholder class actions can be successfully defended,
where previously there was little evidence of that," said Patrick
Boardman (pictured), a Clyde & Co partner. Boardman acted for the
lead primary D&O insurer of Iluka.
Since class actions were introduced in Australia in 1992 there have
been about 150. Many have resulted in costly settlements running
into tens of millions of dollars paid out under insurance policies.
The result has been intense pressure on the D&O insurance space and
extremely high premiums.
Some brokerages hope that recent changes to the continuous
disclosure laws will help encourage companies to fight more D&O
related class action battles in court, rather than settle.
Interestingly, the issues in dispute for this Iluka case occurred
in 2012. The changes in the disclosure laws, said Boardman, "had no
impact or relevance to the judgement."
However, he said, Clyde & Co's successful defence is positive news
for insurance companies and their D&O clients.
"The judgement 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," said Boardman.
However, Boardman cautioned against companies and insurers in the
D&O space concluding too much from this third judgement.
"This is only the third shareholder class action that has gone to
judgement so there is a lack of authority on the relevant issues
such as whether the representations as alleged by the group members
were made, what matters have to be disclosed to the market and
causation," he said.
Nonetheless, Boardman described the judgement as "important" for
companies, their directors and officers and their D&O insurers.
"For 20 years, shareholder class actions were all settled, usually
at great expense, as there was incredible uncertainty with the
outcome," he explained.
"This judgement provides further guidance on both the prosecution
and defence of class actions, and importantly gives the support
that the courts will listen to a well-run defence," added
Boardman.
The Clyde & Co partner said a well-run defence hinges on a good
working relationship between the company, its defence team and its
D&O insurers.
However, some industry players in the D&O insurance space argue
that early settlement, rather than defending a case through to a
judgement, is usually the better option.
Martin Jones, Australia client executive for Xceedance, told
Insurance Business that with claims costs escalating across
multiple product lines insurers must develop new strategies that
facilitate early settlement and not "extensive use of external law
firms" that contribute to "major claims inflation."
Boardman said shareholder class actions are difficult to settle
early.
"It is difficult to settle any claim if neither party knows the
basis of the allegations - which is addressed by the liability
evidence - obtained after review of the company's documents. Also,
how important issues of causation and loss are put forward - which
are the event study and loss analysis," he said.
Boardman added that even if the parties have an early idea of
liability, determining actual loss requires service of the "quantum
evidence".
"The matter is further complicated by any settlement requiring
approval of the court, which requires each of those issues to be
addressed," he said.
Read next: Insurers face COVID-19 payout class actions over fine
print "stuff up"
Boardman said class actions with early settlements "still required
vast sums to be incurred by both parties in setting out the claim
and particularly the alleged loss."
"Shareholder class actions are difficult to settle early and to
settle claims with little or no evidence or basis to the claims
will only assist the poor and spurious claims that otherwise would
not be brought," he said.
Boardman said insurers tried to settle the Iluka matter early,
without it having to go to trial, but the applicant and funder
refused. [GN]
KELLOGG SALES: N.D. Illinois Dismisses Chiappetta Consumer Suit
---------------------------------------------------------------
In the case, STACY CHIAPPETTA, individually and on behalf of all
others similarly situated, Plaintiff v. KELLOGG SALES COMPANY,
Defendant, Case No. 21-CV-3545 (N.D. Ill.), Judge Marvin E. Aspen
of the U.S. District Court for the Northern District of Illinois,
Eastern Division, granted Kellogg's Motion to Dismiss in its
entirety.
I. Background
The putative class action concerns the alleged misleading labeling
of toaster pastries. Plaintiff Chiappetta claims that the packaging
for Defendant Kellogg's Unfrosted Strawberry Pop-Tarts is
misleading because it "gives consumers the impression the fruit
filling contains only strawberries and/or more strawberries than it
does."
Ms. Chiappetta contends that but for Kellogg's "misrepresentations
and omissions," she either would not have bought the Product or
would have paid less for it. She adds that she intends to purchase
the Product again "when she can do so with the assurance that the
Product's labels are consistent with the Product's components."
Ms. Chiappetta brings the putative class action on behalf of
herself and "all purchasers of the Product who reside in Illinois
during the applicable statutes of limitations. She brings claims
for violation of the Illinois Consumer Fraud and Deceptive Business
Practices Act ("ICFA"), 815 ILCS 505/1 et seq.; negligent
misrepresentation; breaches of express warranty, implied warranty
of merchantability, and the Magnuson-Moss Warranty Act, 15 U.S.C.
Section 2301 et seq.; fraud; and unjust enrichment. She asserts
that the Court has jurisdiction under the Class Action Fairness Act
of 2005 ("CAFA"), 28 U.S.C. Section 1332(d)(2).
Kellogg has moved to dismiss Chiappetta's claims under Federal Rule
of Civil Procedure 12(b)(6) for failure to state a claim upon which
relief can be granted. It has also moved to dismiss Chiappetta's
request for injunctive under Federal Rule of Civil Procedure
12(b)(1) for lack of standing.
II. Analysis
A. ICFA
The ICFA safeguards "consumers, borrowers, and business persons
against fraud, unfair methods of competition, and other unfair and
deceptive business practices." "In order to state a claim under the
ICFA, a plaintiff must show: (1) a deceptive or unfair act or
promise by the defendant; (2) the defendant's intent that the
plaintiff rely on the deceptive or unfair practice; and (3) that
the unfair or deceptive practice occurred during a course of
conduct involving trade or commerce."
Ms. Chiappetta challenges a "deceptive," rather than "unfair,"
practice. According to Kellogg, Chiappetta has not plausibly pled
that the front of the Product's packaging is deceptive. In
response, Chiappetta argues that courts should not dismiss
deceptive labeling claims unless they are unreasonable or fanciful,
and her interpretation of the Product's packaging is neither
unreasonable nor fanciful.
Judge Aspen opines that Chiappetta has not identified any "untruths
on the packaging" or a plausible deception. The front of the
Product packaging does not state or suggest anything about the
amount of strawberries in the Product's filling or guarantee that
the filling contains only strawberries, and Chiappetta concedes
that the filling contains some strawberries. Accordingly,
Chiappetta's interpretation of the label is unreasonable and
unactionable. Because Chiappetta has not stated a plausible claim
to relief under ICFA, her ICFA claim is dismissed.
B. Breach of Warranties
1. Breach of Express Warranty and Implied Warranty of
Merchantability
Kellogg makes a few arguments as to why Chiappetta's allegations do
not sufficiently plead breach of warranty claims. First, Kellogg
argues that Chiappetta's claims fail because they are predicated on
allegedly false advertising, and she has not plausibly alleged that
Kellogg's advertising would likely deceive a reasonable consumer. )
Second, it contends that Chiappetta's claims fail for lack of
privity because Chiappetta alleges that she purchased the Product
from stores, such as Jewel Osco, rather than from Kellogg directly.
Third, Kellogg argues that Chiappetta's claims must be dismissed
because she failed to provide pre-suit notice.
Ms. Chiappetta takes the opposite view, first arguing that she has
plausibly alleged that a reasonable consumer would be deceived by
Kellogg's advertising. Second, she contends that privity is a
fact-intensive issue that is more properly resolved at a later
stage in the litigation; and in any event, her claims qualify for
the "direct-dealing" exception to the privity requirement. Third,
Chiappetta claims that she gave Kellogg notice of the Product's
defect by filing this suit, and Kellogg admitted knowledge of the
defect by not contesting the defect in its opening brief.
Judge Aspen agrees with Kellogg that Chiappetta's claims for breach
of express and implied warranties suffer from the same infirmity as
Chiappetta's ICFA claim: Kellogg never made the representation that
Chiappetta claims it made. Chiappetta's claims for breach of
express and implied warranties fail for the additional reason that
Chiappetta did not meet her pre-suit notice obligation.
Judge Aspen is not persuaded that Kellogg admitted knowledge of the
alleged defect by not contesting Chiappetta's claims on the merits
either. On a Rule 12(b)(6) motion, the Court accepts all
well-pleaded facts as true and do not test the merits of a case.
Given the standard applicable to Rule 12(b)(6) motions, it would be
inappropriate for the Court to conclude that Kellogg "admitted
knowledge of the alleged defect" merely because it abided by the
standards applicable to Rule 12(b)(6) motions in its briefing.
Because he concludes that Chiappetta's claims for breach of express
and implied warranties fail on multiple grounds, Judge Aspen need
not reach Kellogg's privity argument. Chiappetta's claims for
breach of express and implied warranties are dismissed.
2. Magnuson-Moss Warranty Act
Ms. Chiappetta also alleges that Kellogg violated the Magnuson-Moss
Warranty Act, 15 U.S.C. Section 2301 et seq. Her Magnuson-Moss Act
claim relies on the same allegations as her common-law breach of
warranty claims. Kellogg argues that Chiappetta's Magnuson-Moss Act
claim should be dismissed because Magnuson-Moss Act claims depend
on the existence of a viable state-law warranty claim, and
Chiappetta has none. Chiappetta disagrees, arguing that we should
not dismiss her Magnuson-Moss Act claims because her state-law
claims are valid, and Kellogg's argument was raised in a footnote.
Contrary to Chiappetta's contention, Judge Aspen holds that he need
not disregard Kellogg's argument merely because it was made in a
footnote. It is within his discretion to consider arguments made in
footnotes or to deem them to be waived. It is not a case where a
party's use of footnotes was so excessive as to make it difficult
for us or other parties to follow. Therefore, Judge Aspen does not
find it improper to consider Kellogg's argument in this instance.
In the future, however, both parties should raise substantive
arguments in the body of their briefs. Accordingly, Chiappetta's
Magnuson-Moss Warranty Act claim is also dismissed.
C. Negligent Misrepresentation
Ms. Chiappetta asserts that Kellogg should be liable for negligent
misrepresentation because it "misrepresented the substantive,
quality, compositional, nutritional, sensory, and/or organoleptic
attributes of the Product" and "knew or should have known" that its
marketing of the Product was "false or misleading." She claims that
had she and other putative class members known the truth, they
"would not have purchased the Product or paid as much," and, as a
result, they "suffered damages."
Kellogg asserts that Chiappetta's claim is barred by the economic
loss doctrine. The economic loss doctrine in Illinois -- also known
as the "Moorman doctrine" -- was set forth by the Illinois Supreme
Court in Moorman Manufacturing Co. v. National Tank Co., 91 Ill.2d
69, 88, 435 N.E.2d 443, 451-52 (1982). This doctrine "'denies a
remedy in tort to a party whose complaint is rooted in disappointed
contractual or commercial expectations.'"
Judge Aspen holds that Kellogg may have provided information to
consumers that was ancillary to the sale of the Product, but that
does not mean it "is in the business of supplying information for
the guidance of others in their business transactions." Chiappetta
has not pled sufficient facts to sustain her claim for negligent
misrepresentation; therefore, that claim is dismissed.
D. Fraud
Ms. Chiappetta challenges the same conduct in her fraud claim as in
her other claims, adding that Kellogg's "fraudulent intent is
evinced by its failure to accurately identify the Product on the
front label, when it knew its statements were neither true nor
accurate." Kellogg contends that Chiappetta has not adequately pled
scienter. In response, Chiappetta that she has satisfied the
pleading requirements for fraud set forth in Federal Rule of Civil
Procedure 9(b) because she alleged the "who, what, where, when, and
how" of Kellogg's alleged fraud and may allege scienter generally.
Judge Aspen finds that Chiappetta's allegations in support of
scienter are substantially similar to those that the Court found to
be insufficient in Rudy v. Family Dollar Stores, No. 21-cv-3575,
2022 WL 345081, at *7 (N.D. Ill. Feb. 4, 2022). In that case, the
plaintiff brought a claim for common-law fraud under Illinois law
based on the product labeling on snack almonds. She alleged that
the defendant's fraudulent intent "is evinced by its knowledge that
the Product was not consistent with its representations." The Court
found those allegations to be conclusory and dismissed the
plaintiff's common-law fraud claim for failure to plead scienter
with particularity as required by Rule 9(b).
Like the plaintiff in Rudy, Chiappetta alleges that Kellogg had
fraudulent intent because it misrepresented the characteristics of
the Product on the Product's packaging. As in Rudy, these
allegations regarding scienter are conclusory and, therefore, fall
short of what Rule 9(b) requires. Accordingly, we dismiss
Chiappetta's common-law fraud claim.
E. Unjust Enrichment
Ms. Chiappetta alleges that Kellogg was unjustly enriched when it
"obtained benefits and monies because the Product was not as
represented and expected, to the detriment and impoverishment of
plaintiff and class members." Kellogg argues that Chiappetta's
claim fails because it is predicated on the same conduct as her
consumer fraud claims; because those claims fail, so too, must her
claim for unjust enrichment. In response, Chiappetta contends that
dismissal of her unjust enrichment claim is premature both because
she has stated a valid claim under the ICFA and because she is
allowed to plead a claim for unjust enrichment as an alternative to
her fraud claims.
Kellogg has the better argument, Judge Aspen opines. Chiappetta's
unjust enrichment claim relies on the same allegations as her ICFA
and fraud claims. Because Chiappetta has failed to plausibly allege
deception her unjust enrichment claim must also fail. Further,
Chiappetta's claim for unjust enrichment cannot stand on its own in
light of the Court's dismissal of the rest of her claims. For these
reasons, Judge Aspen also dismisses Chiappetta's unjust enrichment
claim.
F. Injunctive Relief
Ms. Chiappetta asks that the Court enters a preliminary and
permanent injunction 'directing Kellogg to correct the challenged
practices to comply with the law.' Kellogg asks that the Court
dismisses Chiappetta's request for injunctive relief under Rule
12(b)(1) for lack of standing.
Kellogg's argument is more persuasive for a couple of reasons,
Judge Aspen opines. First, Chiappetta has not pled any viable
claims, so there are no claims for which Chiappetta can seek
injunctive relief as a remedy. Second, even if the Court had not
dismissed Chiappetta's claims, she still does not have standing to
pursue injunctive relief against Kellogg. Therefore, we dismiss
Chiappetta's request for injunctive relief as well.
III. Conclusion
For the reasons he set forth, Judge Aspen granted Kellogg's Motion
to Dismiss in its entirety. Chiappetta has until March 22, 2022, to
amend her Complaint if she can do so in accordance with the Opinion
and Federal Rule of Civil Procedure 11. It is so ordered.
A full-text copy of the Court's March 1, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/2p93yd9r from
Leagle.com.
MISSISSIPPI: District Court Grants Bid to Dismiss Amos v. MSP
-------------------------------------------------------------
In the cases, MICHAEL AMOS, et al., Plaintiffs v. NATHAN BURL CAIN,
et al., Defendants, Consolidated with DARRAN LANG, et al.,
Plaintiffs v. JEWORSKI MALLET, et al., Defendants, Civil Action
Nos. 4:20-CV-7-SA-JMV, 4:20-CV-30-SA-JMV (N.D. Miss.), Judge
Sharion Aycock of the U.S. District Court for the Northern District
of Mississippi, Greenville Division, granted the Defendants' Motion
to Dismiss.
I. Background
The civil case is a putative class action involving a total of 277
Plaintiffs. The Plaintiffs include former and current inmates of
the Mississippi State Penitentiary ("MSP") located in Parchman,
Mississippi. The Plaintiffs allege that the conditions at MSP are
so egregious that they violate their constitutional rights. They
request declaratory and injunctive relief as to those conditions.
The consolidated action was initially filed as two separate cases.
The first lawsuit was commenced on Jan. 14, 2020, when 29
Plaintiffs filed their Complaint against Pelicia E. Hall (in her
official capacity as Commissioner of the Mississippi Department of
Corrections) and Marshal Turner (in his official capacity as the
Superintendent of MSP). Since that time, the parties have engaged
in extensive motion practice, and the Plaintiffs have amended their
Complaint on multiple occasions. A second lawsuit was initiated on
Feb. 25, 2020. That lawsuit involved the same subject matter and
many of the same Defendants.
As a result, on Nov. 12, 2020, the Court entered an Order noting
that "both cases involve current and former prisoners at Parchman
alleging violations of their constitutional rights based on the
conditions within the prison, the Plaintiffs and the Defendants are
represented by the same counsel in both actions, and the procedural
postures of the cases are not significantly different." The Court
therefore consolidated the cases pursuant to Rule 42 of the Federal
Rules of Civil Procedure.
On Jan. 12, 2022, the Plaintiffs filed their Second Amended
Complaint, which is now the operative Complaint. The Second Amended
Complaint includes 179 Plaintiffs who request class status and seek
declaratory and injunctive relief as to the conditions at MSP. The
Second Amended Complaint names as Defendants: Nathan "Burl" Cain
(in his official capacity as Commissioner of MDOC); Jeworski
Mallett (in his official capacity as Deputy Commissioner of
Institutions for MDOC); Timothy Morris (in his official capacity as
Superintendent of MSP); Donald Faucett (in his official capacity as
Chief Medical Officer of MDOC); Lee Simon (in his official capacity
as the Warden of Area I of MSP); Tracy McDonald (in his official
capacity as the Warden of Area II of MSP); and Sonja Stanciel (in
her official capacity as Chief of Security of MSP).
Through the present Motion to Dismiss, the Defendants request that
the Court dismisses the claims of 197 of the 277 Plaintiffs. In
making that request, they separate the 277 Plaintiffs into
different categories, making specific arguments as to each
category. The Motion has been fully briefed.
II. Analysis and Discussion
The Defendants raise two main arguments to support their Motion.
First, they assert that the Plaintiffs who are no longer housed at
MSP lack standing to proceed. Second, they contend that the
unrepresented Plaintiffs who have not complied with the Court's
previous Orders should be dismissed for failure to prosecute.
Prior to addressing these arguments, Judge Aycock further expounds
upon the various categories of the Plaintiffs and the different
arguments applicable to each group. Because the Defendants have
concisely explained these categories, she quotes from their
Memorandum:
"One hundred and ninety-seven (197) named Plaintiffs should be
dismissed for the reasons set forth in Defendants' Motion and this
Memorandum, some of them for overlapping reasons. Of those 197
Plaintiffs, 144 are represented by counsel and 53 are not. The
following paragraphs and accompanying table seek to explain to the
Court the categories of named Plaintiffs who should be dismissed
from this consolidated action."
"Ninety-eight (98) represented Plaintiffs who were included in
the consolidated Second Amended Complaint filed on January 12, 2022
admit they are no longer housed at MSP, an admission that renders
their claims moot (Admittedly Transferred Plaintiffs). Forty-five
(45) additional represented Plaintiffs were included in the
original amended complaints but were totally omitted by their
counsel from the Second Amended Complaint such that they no longer
assert a case or controversy and have abandoned any claims they may
have had against Defendants (Omitted Plaintiffs). Forty-three (43)
of the 45 Omitted Plaintiffs also cannot prove they are housed at
MSP or that they have an expectation of returning."
"All 53 pro se Plaintiffs are subject to dismissal on the
basis that they are not adequate class counsel and representative
(Pro Se Plaintiffs). Of those 53 Pro Se Plaintiffs, 43 are also not
housed at MSP and have no demonstrated probability or expectation
of being re-incarcerated there. (Transferred Pro Se Plaintiffs).
And 52 of the 53 have also failed to prosecute their claims or obey
orders of the Court (Nonprosecution Plaintiffs)."
With those categorizations in mind, Judge Aycock turns to the
Defendants' specific arguments for dismissal.
A. Pro Se and Omitted Plaintiffs
Because it is dispositive as to many of the Plaintiffs, Judge
Aycock begins with the Defendants' second argument. The Defendants
contend "there are 53 Pro Se Plaintiffs, 52 of whom have not
prosecuted their claims or followed orders of the Court despite
repeated warnings of the consequences for failing to do so." This
argument stems from those Plaintiffs' failure to comply with the
Court's prior Orders.
On Aug. 16, 2021, the Court entered an Order which in pertinent
part directed parties on whose behalf there was no counsel of
record: "Plaintiffs listed in [Paragraph] 1 above are directed to
notify the Court in writing on or before September 16, 2021, as to
whether they will continue to proceed pro se or with new counsel.
If any plaintiff intends to proceed with new counsel, new counsel
must enter an appearance herein on or before September 16, 2021.
Plaintiffs are warned that failure to comply with this order may
lead to dismissal of their claims for failure to prosecute." Only
one Plaintiff, Charles Gayles, responded to this Order and
indicated his intent to proceed pro se.
The Court recognized the other Plaintiffs' failure to respond in
another Order entered on Oct. 7, 2021. The Pro Se Plaintiffs'
continued failure to comply, the Defendants assert that the Pro Se
Plaintiffs' claims should be dismissed. The Court is cognizant that
leniency should be extended to pro se litigants.
Consequently, Judge Aycock accepts the Defendants' arguments on
this point. The claims of the 52 Pro Se Plaintiffs who have not
complied with the directives of the Court are hereby dismissed for
failure to prosecute. Those Plaintiffs are: Andrew Alexander,
Gregory Canderdy, Wesley Clayton, Donte Conner, Dustin Crump,
Antonio Davis, Jonathan Davis, James Dooley, Chancellor Eaton,
Isaac Garner, Antonio Goldman, Stephen Grisham, Justin Hammons,
Desmond Hardy, Kewan Hosey, Alchello House, Dennis Jobe, Quenten
Johnson, Michael Jones, Frederick Jordan, Deaunte Lewis, Jimmie
Magee, Larry Maxwell, Kentrures McCoy, Kristopher Meisenholder,
Tyler Miller, Sammy Miller, Bobby Mitchell, Alex Morris, Timothy
Myers, Cory Page, Jeremiah Patterson, Marcus Ramsey, Michael Ray,
James Richards, Brandon Robertson, Quincy Robertson, Charles Daniel
Scrimpshire, Phillip Shumaker, Christopher Smith, Robert Sylvester
Smith, Keion Stanfield, Jammichael Strong, Cordarius Strong, James
Sudduth, Michael Tarvin, Charlie Taylor, Keith Thayer, Kevin
Thomas, Mark Thomas, Zarek Tyler, Kendrick Tyson. The claims of
these Plaintiffs are dismissed for failure to prosecute. These
Plaintiffs are terminated as litigants in the case.
The Defendants also request dismissal of the claims of the "Omitted
Plaintiffs." They contend that the "Omitted Plaintiffs" have
abandoned their claims and should therefore be dismissed. In their
Response, the Plaintiffs represent that they "make no argument
about the 45 former plaintiffs who were in prior pleadings but are
not party to the Second Amended Complaint." The Court also notes
that none of those individuals have filed a separate response to
the Motion.
As these individuals are no longer listed as parties in the
operative Complaint and have not otherwise indicated their intent
to pursue relief, Judge Aycock agrees that their claims should be
dismissed. Those individuals are: Jamar Allen, Christopher Ballard,
John Henry Barnett, Kevin Boyd, Charles Brown, Marlon Bruce,
Keyshun Burnside, Jonathan Burns, Carlos Carter, Michael Cannon,
Ted Dewayne Cauthen, Demario Coleman, Nathan Collier, Nicholas
Crawford, Walter Dennis Cox, Antonio Davis, Erphon Davis, Henry
Dennis, James Durr, Lorenzo Evans, Ray Evans, Joseph Glenn, Kenneth
Gowdy, Jonathan Ham, Carlos Henderson, George Hudson, Billy James
Jr., Shun January, Calip Johnson, Shaquille Johnson, Newton Knight,
Curtis Lipsey, Adrian Martin, Bradley Mask, Jesse McCuin, Bobby
Montson, Victor Otempong, Derrick Pam, Travis Partee, Russell
Reich, Kendrick Ross, Frederick Spires, Marcus Vaughn, John
Fitzgerald Ware, Antwune Washington. The claims of these Plaintiffs
are dismissed, and they are terminated as litigants in the case.
B. Standing
Judge Aycock next turns to the Defendants' standing arguments. The
Defendants originally contended that the claims of 187 Plaintiffs
should be dismissed on this ground. However, because there is
significant overlap with the categories of Plaintiffs addressed in
the preceding Section, there are only 99 remaining Plaintiffs who
are subject to this argument. This number includes the 98
"Admittedly Transferred Plaintiffs" as well as one additional
Plaintiff, Nicholas Brooks, who has been released from custody
altogether since the initiation of this litigation.
The Defendants contend that an appropriate application of this
standard renders moot the claims of the Plaintiffs who are no
longer housed at MSP because, even if the Court were to grant the
relief requested in the Second Amended Complaint, the Admittedly
Transferred Plaintiffs would not be affected. The Plaintiffs
disagree with the Defendants' arguments as to those Plaintiffs who
are still in MDOC custody but have simply been transferred away
from MSP to a different facility. They contend that these
individuals "retain standing despite their transfer from
Parchman."
Judge Aycock addresses those arguments but, first, will dismiss the
claims of the individuals who have been released from MDOC custody
altogether, recognizing that the Plaintiffs do not oppose the
Defendants' argument on that issue. Those individuals are: Troy
James Ford, Tyler Graham, Michael Jamison, Billy Lee, Chad
Marshall, Tyredius Roberts, Joseph Stanford, Nicholas Brooks. The
claims of those particular Plaintiffs are dismissed, and they are
terminated as litigants in the case.
That leaves only the Plaintiffs who have been transferred from MSP
yet remain in MDOC custody. While the Defendants rely on cases such
as Smith to support their mootness argument, the Plaintiffs
emphasize that inmates who are transferred away from MSP by MDOC
are often transferred back to MSP prior to being released. They
emphasize that MDOC controls whether the inmates are transferred
and that the Defendants should not be able to simply moot the case
by initiating transfers of all Plaintiffs, only to have them later
be returned to MSP.
Judge Aycock finds the Plaintiffs' theory of merely pointing to
previous transfers of various inmates insufficient to constitute a
"demonstrative probability" or a "reasonable expectation" that they
will be transported back to MSP. The argument is in no way
particularized as to any specific Plaintiff being subject to a
transfer back to MSP. In essence, this argument is speculatory
based upon the fact that inmates, some of whom are involved in this
litigation, have been transferred in the past. Furthermore, the
Plaintiffs cite no cases wherein a court has found the mootness
doctrine inapplicable when the inmate provides no particularized
evidence indicating that any particular inmate faces a potential
transfer back to the subject facility. While cognizant that the
standard is not one of mathematical precision, Judge Aycock finds
that the Plaintiffs' arguments here are speculative. Without more,
the Court finds that the transferred Plaintiffs cannot proceed.
Their claims are moot.
Having found that the claims of the transferred Plaintiffs are
moot, their claims will be dismissed. Those Plaintiffs are: Michael
Amos, Caleb Buckner, Willie Friend, William Green, Justin James,
Terrance McKinney, Ivery Moore, Derrick Rogers, Deangel Taylor,
Lemartine Taylor, Conti Tillis, Carlos Varnado, Adrian Willard,
Curtis Wilson, Cedric Andrews, Roger Boyd, Frederick Brown, Dillon
Callaway, Lebarron Chatman, Johnathan Clark, Johnny Colton, James
Cox, Charles Cross, Ricky Darden, John Davis, Anthony Day, Joseph
Dennis, Wendell Duncan, Jamie Elaire, Nigel Farmer, Antron Finklea,
Ricky Frierson, Terrence Gatlin, Brandon Gilmore, Dantavious
Hairston, Brymon Hamp, Jonathan Herrington, Gregory Hicks, Janarian
Hill, Joseph Holiday, Quincy Holmes, Antonio Hoover, Nathaniel
Jackson, William Jackson, Michael Jamison, Sellers Johnson, Xavier
Johnson, Alexander Jones, Juarez Keyes, Carderrius King, Darran
Lang, Malcom Lathan, Justin Lease, Legrane Lenox, Alvin Luckett,
Ted Mangum, Chad Marshall, Carles Miles, Eris Moore, Bennie Motten,
Brian Nettles, Terry Pierce, Casimir Poe, Wilfred Powell, Mario
Ragland, Joseph Lee Reese, Jerry Rice, Emanuel Richardson, Ronaldo
Rogers, Leon Ruffin, Jr., Dominico Saddler, Daryl Shinn, Lonnie
Sims, Herman Sipp, Jr., Tyler Smith, Lynn Spurlock, Remington
Steele, Keith Steinmetz, Darwin Strahan, Demarquis Tate,
Christopher Thomas, Eric Thomas, Raymond Thomas, Airick Toins,
Qy'Darrious Towns, Linnox Walker, Johnny Wallace, Corey James
Wells, Efrem Whitfield, Daniel Williams, Mario Williams, Joe
Womack, Dominico Young. Those Plaintiffs' claims are dismissed, and
they will be terminated as parties on the docket.
Despite her ruling, Judge Aycock does recognize the Plaintiffs'
concerns. In particular, by finding moot the claims of the
Plaintiffs who have been transferred from MSP but who remain in
MDOC custody, she has potentially opened the door for gamesmanship
by the Defendants. The Defendants may believe that they can moot
this entire lawsuit by transferring the Plaintiffs away from MSP
only to transfer them back to MSP if/when the Court dismisses their
claims. The Court will not tolerate such conduct.
As noted, Judge Aycock proceeds in issuing this ruling under the
assumption (as admitted by the Plaintiffs) that the Defendants'
transfers have been part of their "routine practice." If at any
time throughout the course of the litigation it appears as though
transfers begin to occur in any manner other than "routine
practice," Judge Aycock may reconsider this ruling. The Plaintiffs
will notify the Court if any such practices become apparent. While
the case is not a typical one, the Court will not hesitate to
fashion an appropriate remedy if the Defendants engage in
intentional gamesmanship to subvert judicial review.
III. Conclusion
For the reasons she set forth, Judge Aycock granted the Defendants'
Motion to Dismiss.
The claims of the following Plaintiffs are dismissed without
prejudice: Andrew Alexander, Gregory Canderdy, Wesley Clayton,
Donte Conner, Dustin Crump, Antonio Davis, Jonathan Davis, James
Dooley, Chancellor Eaton, Isaac Garner, Antonio Goldman, Stephen
Grisham, Justin Hammons, Desmond Hardy, Kewan Hosey, Alchello
House, Dennis Jobe, Quenten Johnson, Michael Jones, Frederick
Jordan, Deaunte Lewis, Jimmie Magee, Larry Maxwell, Kentrures
McCoy, Kristopher Meisenholder, Tyler Miller, Sammy Miller, Bobby
Mitchell, Alex Morris, Timothy Myers, Cory Page, Jeremiah
Patterson, Marcus Ramsey, Michael Ray, James Richards, Brandon
Robertson, Quincy Robertson, Charles Daniel Scrimpshire, Phillip
Shumaker, Christopher Smith, Robert Sylvester Smith, Keion
Stanfield, Jammichael Strong, Cordarius Strong, James Sudduth,
Michael Tarvin, Charlie Taylor, Keith Thayer, Kevin Thomas, Mark
Thomas, Zarek Tyler, Kendrick Tyson, Jamar Allen, Christopher
Ballard, John Henry Barnett, Kevin Boyd, Charles Brown, Marlon
Bruce, Keyshun Burnside, Jonathan Burns, Carlos Carter, Michael
Cannon, Ted Dewayne Cauthen, Demario Coleman, Nathan Collier,
Nicholas Crawford, Walter Dennis Cox, Antonio Davis, Erphon Davis,
Henry Dennis, James Durr, Lorenzo Evans, Ray Evans, Joseph Glenn,
Kenneth Gowdy, Jonathan Ham, Carlos Henderson, George Hudson, Billy
James Jr., Shun January, Calip Johnson, Shaquille Johnson, Newton
Knight, Curtis Lipsey, Adrian Martin, Bradley Mask, Jesse McCuin,
Bobby Montson, Victor Otempong, Derrick Pam, Travis Partee, Russell
Reich, Kendrick Ross, Frederick Spires, Marcus Vaughn, John
Fitzgerald Ware, Antwune Washington, Troy James Ford, Tyler Graham,
Michael Jamison, Billy Lee, Chad Marshall, Tyredius Roberts, Joseph
Stanford, Nicholas Brooks Michael Amos, Caleb Buckner, Willie
Friend, William Green, Justin James, Terrance McKinney, Ivery
Moore, Derrick Rogers, Deangel Taylor, Lemartine Taylor, Conti
Tillis, Carlos Varnado, Adrian Willard, Curtis Wilson, Cedric
Andrews, Roger Boyd, Frederick Brown, Dillon Callaway, Lebarron
Chatman, Johnathan Clark, Johnny Colton, James Cox, Charles Cross,
Ricky Darden, John Davis, Anthony Day, Joseph Dennis, Wendell
Duncan, Jamie Elaire, Nigel Farmer, Antron Finklea, Ricky Frierson,
Terrence Gatlin, Brandon Gilmore, Dantavious Hairston, Brymon Hamp,
Jonathan Herrington, Gregory Hicks, Janarian Hill, Joseph Holiday,
Quincy Holmes, Antonio Hoover, Nathaniel Jackson, William Jackson,
Michael Jamison, Sellers Johnson, Xavier Johnson, Alexander Jones,
Juarez Keyes, Carderrius King, Darran Lang, Malcom Lathan, Justin
Lease, Legrane Lenox, Alvin Luckett, Ted Mangum, Chad Marshall,
Carles Miles, Eris Moore, Bennie Motten, Brian Nettles, Terry
Pierce, Casimir Poe, Wilfred Powell, Mario Ragland, Joseph Lee
Reese, Jerry Rice, Emanuel Richardson, Ronaldo Rogers, Leon Ruffin,
Jr., Dominico Saddler, Daryl Shinn, Lonnie Sims, Herman Sipp, Jr.,
Tyler Smith, Lynn Spurlock, Remington Steele, Keith Steinmetz,
Darwin Strahan, Demarquis Tate, Christopher Thomas, Eric Thomas,
Raymond Thomas, Airick Toins, Qy'Darrious Towns, Linnox Walker,
Johnny Wallace, Corey James Wells, Efrem Whitfield, Daniel
Williams, Mario Williams, Joe Womack, Dominico Young.
The Clerk of Court is directed to terminate those Plaintiffs as
parties on the docket in the case.
Furthermore, as noted, Judge Aycock will not dismiss the claims of
Charles Gayles, who is proceeding pro se. However, because he is
not listed as a Plaintiff on the operative Second Amended
Complaint, she Court finds that he should not remain part of the
case. Rather, the Clerk of Court is directed to reassign Charles
Gayles a separate case number for his own individual pro se case.
In addition, Judge Aycock notes that the action was initially filed
as two separate cases. Because the case (4:20-CV-7-SA-JMV) is
designated as the lead case, all filings must be made in the case.
The member case is severed, and the Clerk of Court will take all
steps necessary to administratively close that case. The docket in
the lead case will be updated to include all active Plaintiffs in
accordance with the operative Second Amended Complaint and the
instant Order. Judge Aycock notes that it typically does not
administratively close member cases in this fashion; however,
because all active Plaintiffs are now listed on the Second Amended
Complaint and the docket of the lead case will be updated to
reflect all active Plaintiffs, she sees no need for two separate
cases to remain pending. Proceeding in this fashion will not
prejudice the parties in any way.
The case will proceed as to the 80 Plaintiffs not subject to the
Defendants' Motion. All of those Plaintiffs are listed in the
Second Amended Complaint and are represented by counsel.
To summarize, the pending Motions are disposed of as follows: The
Motion to Dismiss is granted. Cordarius Strong's Pro Se Motion is
denied as moot. Stanley Luster's Pro Se Motions are denied. Kedric
Steele's Pro Se Motion is denied. Charles Gayles' Pro Se Motion is
denied as moot. The Defendants' Motion to Strike is denied as
moot.
A full-text copy of the Court's March 1, 2022 Order & Memorandum
Opinion is available at https://tinyurl.com/5e54k4t9 from
Leagle.com.
MOM ENTERPRISES: Murphy Sues Over Deceptive Gripe Water Product Ad
------------------------------------------------------------------
AERIN MURPHY, individually and on behalf of all others similarly
situated, Plaintiff v. MOM ENTERPRISES, LLC d/b/a MOMMY’S BLISS,
Defendant, Case No. 5:22-cv-01205 (N.D. Cal., Feb. 25, 2022) is a
class action seeking to remedy the deceptive and misleading
business practices of the Defendant with respect to the marketing
and sales of a number of its gripe water products in violation of
California's Consumer Legal Remedies Act, the Unfair Competition
Law, and the False Advertising Law.
According to the complaint, the Defendant promotes its gripe water
products, including Mommy's Bliss Gripe Water Original, Mommy's
Bliss Gripe Water Night Time, Mommy's Bliss Gripe Water Gel, and
Mommy's Bliss Gripe Water Gel Night Time as effective herbal
remedies to address symptoms associated with colic in newborn
babies. However, the Plaintiff alleges that none of the ingredients
have been shown to provide such advertised benefits.
As a direct and proximate result of Defendant's alleged false and
misleading advertising claims and marketing practices, Defendant
has caused Plaintiff and the members of the Class to purchase a
product which does not, and cannot, perform as represented.
Mom Enterprises, LLC, d/b/a Mommy's Bliss, manufactures, markets,
and advertises and distributes gripe water products products
throughout the United States.[BN]
The Plaintiff is represented by:
L. Timothy Fisher, Esq.
BURSOR & FISHER, P.A.
1990 North California Boulevard, Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Facsimile: (925) 407-2700
E-nail: ltfisher@bursor.com
- and -
Sarah N. Westcot, Esq.
Stephen A. Beck, Esq.
BURSOR & FISHER, P.A.
Brickell Ave., Suite 1420
Miami, FL 33131
Telephone: (305) 330-5512
Facsimile: (305) 676-9006
E-mail: swestcot@bursor.com
sbeck@bursor.com
MP MATERIALS: Faces Bernstein Suit Over Drop in Share Price
-----------------------------------------------------------
MARC BERNSTEIN, individually and on behalf of all others similarly
situated, Plaintiff v. MP MATERIALS CORP. f/k/a FORTRESS VALUE
ACQUISITION CORP.; JAMES H. LITINSKY, RYAN CORBETT, ANDREW A.
MCKNIGHT, and DANIEL N. BASS, Defendants, Case No. 2:22-cv-00315
(N.V.D., Feb. 22, 2022) is class action on behalf of all persons
and entities that purchased or acquired MP Materials securities
between May 1, 2020 and February 2, 2022, both dates inclusive,
seeking to recover damages caused by the Defendants' violations of
the Securities Exchange Act of 1934.
The Plaintiff alleges in the complaint that throughout the Class
Period, the Defendants made materially false and misleading
statements regarding the Company's business, operations, and
compliance policies. Specifically, the Defendants made false and
misleading statements or failed to disclose that: (i) Fortress
Value Acquisition Corp. ("FVAC") had overstated its due diligence
efforts and expertise with respect to identifying target companies
to acquire; (ii) FVAC performed inadequate due diligence into
Legacy MP Materials prior to the Business Combination, or else
ignored significant red flags regarding, inter alia, Legacy MP
Materials' management, compliance policies, and Mountain Pass's
profitability; (iii) as a result, the Company's future business and
financial prospects post-Business Combination were overstated; (iv)
MP Materials engaged in an abusive transfer price manipulation
scheme with a related party in the People's Republic of China
("China") to artificially inflate the Company's profits; (v) MP
Materials' ore at Mountain Pass was not economically viable to
harvest for rare earth metals; and (vi) as a result, the Company's
public statements were materially false and misleading at all
relevant times.
On February 3, 2022, Bonitas Research published a report (the
"Bonitas Report") accusing MP Materials of executing an "abusive
transfer price manipulation scheme" with a related party in China,
Shenghe Resources Holding Co., Ltd. ("Shenghe"), which owned 7.7%
of the Company as of March 22, 2021. On this news, MP Materials'
stock price fell $5.61 per share, or 14.25%, to close at $33.75 per
share on February 3, 2022, on unusually heavy trading volume of
12,371,789 shares, says the suit.
MP Materials Corp. produces and markets rare earth specialty
materials. The Company is building a fully-integrated supply chain
for high strength permanent magnets for the electrification and
sustainability industries. [BN]
The Plaintiff is represented by:
Andrew R. Muehlbauer, Esq.
MUEHLBAUER LAW OFFICE, LTD.
7915 West Sahara Avenue, Suite 104
Las Vegas, NV 89117
Telephone: (702) 330-4505
Facsimile: (702) 825-0141
E-mail: andrew@mlolegal.com
- and -
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
E-mail: jalieberman@pomlaw.com
ahood@pomlaw.com
-and -
Joshua E. Fruchter, Esq.
WOHL & FRUCHTER LLP
25 Robert Pitt Drive, Suite 209G
Monsey, NY 10952
Telephone: (845) 290-6818
Facsimile: (718) 504-3773
E-mail: jfruchter@wohlfruchter.com
NEW YORK: $2.45-Mil. in Attorneys' Fees Awarded in Nnebe v. TLC
---------------------------------------------------------------
In the cases, JONATHAN NNEBE, et al., Plaintiffs v. MATTHEW DAUS,
et al., Defendants. ANTHONY STALLWORTH, individually and on behalf
of all others similarly situated, et al., Plaintiffs v. MEERA
JOSHI, et al., Defendants, Case Nos. 06-cv-04991 (RJS), 17-cv-7119
(RJS) (S.D.N.Y.), Judge Richard J. Sullivan of the U.S. District
Court for the Southern District of New York granted in part and
denied in part the Plaintiffs' motion for attorneys' fees pursuant
to 42 U.S.C. Section 1988(b).
I. Background
The cases involved the New York City Taxi and Limousine Commission
(the "TLC") and licensed taxi drivers, who have been suspended
after being charged with crimes. Defendant Matthew W. Daus served
as the tenth Commissioner and Chairman of the TLC.
The Nnebe action was commenced on June 28, 2006, when Plaintiff
Nnebe filed a complaint and moved for a temporary restraining order
and preliminary injunction, contending that the Defendants violated
his constitutional rights by depriving him of his taxi license
without meaningful process. The preliminary injunction motion was
denied, and the Plaintiffs filed two amended complaints, adding
class allegations and joining other affected drivers and the New
York Taxi Workers Alliance ("NYTWA") as Plaintiffs. The Plaintiffs
also moved for class certification.
After approximately six months of discovery, both parties
cross-moved for summary judgment. On Sept. 30, 2009, the Court
granted the Defendants' motion for summary judgment on the
Plaintiffs' federal claims, declined to exercise supplemental
jurisdiction over the Plaintiffs' state law claims, and dismissed
the class certification motion as moot.
The Plaintiffs appealed. On appeal, the Second Circuit affirmed the
Court's finding that due process does not require a pre-suspension
hearing. Regarding post-suspension hearings, the Second Circuit
vacated and remanded for the Court to conduct additional
fact-finding "to determine whether the post-suspension hearing the
City affords does indeed provide an opportunity for a taxi driver
to assert that, even if the criminal charges are true, continued
licensure does not pose any safety concerns." Following the Second
Circuit's remand, both sides again moved for summary judgment. The
Court denied both motions, concluding that there was a genuine
dispute of fact over whether the City "meaningfully considers
evidence other than the fact of arrest." The Court then set a trial
date.
The parties filed extensive pre-trial motions in limine and
briefing in advance of the trial. The Court ultimately held a bench
trial between Jan. 13 and 21, 2014, to identify the standard
applied at post-suspension hearings. Following the trial, the Court
issued findings of fact and conclusions of law, concluding that the
pre-2006 notice violated procedural due process but otherwise
finding that the Plaintiffs failed to sustain their burden of proof
with respect to their due process claims.
The Plaintiffs sought to appeal from that order in May 2016, but
the Second Circuit dismissed that appeal for lack of jurisdiction.
They then briefed the remaining issues to be addressed in the Nnebe
action, and in 2017, the Plaintiffs commenced the related
Stallworth action. After the Defendants moved to dismiss the
Stallworth complaint, the Court dismissed that action, and the
Stallworth Plaintiffs filed a notice of appeal. Soon after, in
March 2018, the Court issued a final order and judgment in Nnebe
awarding the Plaintiffs nominal damages for the pre-2006 notice but
otherwise holding that the Plaintiffs had failed to prove all other
constitutional claims. The Plaintiffs then filed a notice of appeal
in Nnebe, too.
The Second Circuit consolidated both appeals and heard the cases in
tandem. In 2019, the Circuit partially reversed the Court's
rulings, concluding that the post-suspension hearing process was
constitutionally deficient and that due process requires "a
meaningful hearing that must give the driver an opportunity to show
that his or her particular licensure does not cause a threat to
public safety." It then remanded the cases to the Court to fashion
a remedy.
Following the 2019 remand, the Defendants began updating their
suspension procedures and notice. On Dec. 31, 2020, the Court
granted in part and denied in part the Plaintiffs' motion for
permanent injunctive relief. 8. In essence, the Court held that the
substantial changes the Defendants made to their practices in
response to the Second Circuit's 2019 ruling satisfied due process,
but ordered the Defendants to expedite the process.
The Plaintiffs have now moved for interim attorneys' fees and costs
covering the time period from the commencement of the litigation in
2006 to the Second Circuit's July 2019 appeal decision.
II. Discussion
A. Attorneys' Fees (2006 to 2019 Appeal)
1. Hourly Rates
The Plaintiffs seek $3,216,227.50 in attorneys' fees for 6,289.4
hours of work from the start of this litigation in 2006 through the
2019 appeal decision. They also seek costs in the amount of $9,466
expended by the law firm of Fried, Frank, Harris, Shriver &
Jacobson LLP, and $30,596.32 expended by attorney Daniel Ackman.
Finally, the Plaintiffs request an additional $149,257.40 for 328.5
hours of work related to preparing the instant fee motion.
As a threshold matter, the parties do not dispute that the
Plaintiffs are the "prevailing parties" for purposes of section
1988, or that they are entitled to an award of interim attorneys'
fees and costs. As the Court observed in its order granting the
Plaintiffs' request to file a motion for interim attorneys' fees,
"the duration of the litigation and the Plaintiffs' clear success
on the merits to date likely justify an award of interim fees." The
parties dispute only the reasonableness of the fees and hourly
rates.
Accordingly, Judge Sullivan looks to the hourly rates proposed and
the hours expended by the attorneys to determine a reasonable fee
award in the case. He concludes that (i) $650 per hour is an
appropriate rate for an attorney of Mr. Goldberg's caliber; (ii) an
hourly rate of $450 is reasonable for Mr. Ackman for the entire
time period; (iii) the following rates for the Fried Frank
associates are reasonable: $350 per hour for Mr. Kleinman, a 2009
law school graduate who practices primarily in commercial and
intellectual property litigation, and who conducted witness
examinations at the trial; $300 per hour for Mr. Jacobs, a 2010 law
school graduate who assisted the trial team with research and
briefing; and $250 per hour for Ms. Gomez, a 2013 law school
graduate with civil rights experience who also assisted the trial
team; and (iv) as to Mr. Foote and the other paralegal staff, $150
per hour is an appropriate rate for his work, and $125 is
reasonable for the remaining legal staff.
2. Hours Expended (2006 to 2019 Appeal)
The Plaintiffs seek compensation for 3,143.4 hours expended by Mr.
Ackman; 1,519.3 hours expended by Mr. Goldberg; and 1,428.1 hours
expended by Fried Frank. This comes out to a total of 6,090.8 hours
expended from the start of the litigation in 2006 until the 2019
appeal. In support of the motion, the Plaintiffs submitted billing
records for Mr. Ackman, Mr. Goldberg, and the Fried Frank
attorneys.
The Defendants argue that an across-the-board reduction of 30% to
50% to these hours is appropriate given the use of block billing,
lack of contemporaneous records, wasteful litigation efforts, and
excessive or unnecessary hours.
Having carefully reviewed the Defendants' objections and the
underlying records, JUdge Sullivan concludes that a percentage
reduction to the hours is appropriate in the case. The Defendants'
proposed reductions, however, are excessive. Instead, he finds that
a 15% across-the-board reduction is reasonable and supported by the
following considerations.
Judge Sullivan says, the across-the-board reduction in hours is
necessary to account for (1) unsuccessful litigation efforts, (2)
unreliability in some of the records, and (3) block billing or
vague entries. On the whole, however, the Defendants' proposed
reduction of 30-50% is too excessive to rectify these deficiencies,
and the Court is particularly reluctant to penalize the Plaintiffs
for "wasteful" litigation efforts occurring after the Second
Circuit's first remand, given that much of the ensuing litigation
could have been avoided by Defendants. Accordingly, he concludes
that a 15% reduction to the hours claimed by the Plaintiffs is
appropriate.
3. Costs
The Plaintiffs seek reimbursement for $30,596.32 in costs incurred
by Mr. Ackman and $9,466.28 incurred by Fried Frank. The Defendants
dispute the following items in the Ackman declaration: (1)
$1,883.54 in "appellate charges" and the $505 filing fee for the
frivolous" 2016 appeal; (2) $250 for a "Reply Brief" for which
there is no receipt; and (3) two $505 filing fees for the
unsuccessful appeals in Stallworth. The Plaintiffs do not
specifically address these arguments in their reply brief, and
Judge Sullivan agrees that these costs should not be compensated
and will therefore exclude these disputed costs from their award.
As to Fried Frank's expenses, the Defendants argue that they should
not have to pay for 270 entries that are unsupported by receipts
(totaling $6,796.50). But the Defendants do not contend that the
entries are unreasonable or even dispute that they occurred; they
merely argue that the entries are unsupported. The costs, however,
were clearly itemized, and based on the Court's familiarity with
this case, are reasonable.
Judge Sullivan will therefore permit the Plaintiffs to recover
these costs even though the "Plaintiffs could have done a better
job coming forward with documentary corroboration of the fact of
these expenses." Accordingly, he awards $26,947.78 for costs
incurred by Ackman and $9,466.28 incurred by Fried Frank.
4. Fee Award (2006 through 2019 Appeal)
Based on the referenced rates, hours, and percentage reduction,
Judge Sullivan awards the Plaintiffs $2,453,986.00 in attorneys'
fees and $36,414.06 in costs.
B. Fee Award for Instant Motion
The Plaintiffs also seek a fee award for hours expended on the
instant motion for attorneys' fees -- so called "fees-on-fees." In
total, they seek approximately $150,175.50 for 328.5 hours of work
related to the instant motion.
Judge Sullivan concludes that a 30% reduction to the hours expended
for this motion is appropriate, resulting in 229.95 hours expended.
He also reduces the claimed hourly rates as specified. This
produces a fees-on-fees award of $96,400.50 that breaks down as
follows: (1) $31,878.00 for Fried Frank (106.26 hours at a blended
rate of $300 per hour); (2) $35,721.00 for Ackman (79.38 hours at
$450 per hour); and (3) $28,801.50 for Goldberg (44.31 hours at
$650 per hour).
III. Conclusion
Accordingly, Judge Sullivan granted in part and denied in part the
Plaintiffs' motion for attorneys' fees. The Plaintiffs are awarded
$2,453,986 in attorneys' fees through the 2019 appeal; $96,400.50
in attorneys' fees for the instant motion; and $36,414.06 in costs.
The Clerk of Court is respectfully directed to terminate the motion
pending at 06-cv-4991, Doc. No. 491 and 17-cv-7119, Doc. No. 108.
A full-text copy of the Court's March 1, 2022 Order is available at
https://tinyurl.com/4zv8bns4 from Leagle.com.
NEW YORK: District Court Certifies Liability Class in Nnebe v. TLC
------------------------------------------------------------------
In the cases, JONATHAN NNEBE, et al., Plaintiffs v. MATTHEW DAUS,
et al., Defendants. ANTHONY STALLWORTH, individually and on behalf
of all others similarly situated, et al., Plaintiffs v. MEERA
JOSHI, et al., Defendants, Case Nos. 06-cv-4991 (RJS), 17-cv-7119
(RJS) (S.D.N.Y.), Judge Richard J. Sullivan of the U.S. District
Court for the Southern District of New York granted in part and
denied in part the Plaintiffs' motion for class certification.
I. Background
Now before the Court is a motion for class certification filed by
the Plaintiffs in tandem cases involving the New York City Taxi and
Limousine Commission (the "TLC") and licensed taxi drivers, who
have been suspended after being charged with crimes.
In the first case, brought in 2006, Nnebe v. Daus, No. 06-cv-4991,
Plaintiffs Jonathan Nnebe, Eduardo Avenaut, and Khairul Amin,
together with the New York Taxi Workers Alliance, brought a
putative class action against Defendants Matthew Daus, Charles
Fraser, Joseph Eckstein, Elizabeth Bonina, the TLC, and the City of
New York, alleging that the TLC's policy of summarily suspending
taxi drivers upon notification of their arrest violates the United
States Constitution, New York state law, and New York City
municipal law.
In the second case, brought in 2017, Stallworth v. Joshi, No.
17-cv-7119, Plaintiffs Anthony Stallworth, Parichay Barman, Noor
Tani, and the New York City Taxi Workers Alliance commenced an
action against Defendants Meera Joshi, Chris Wilson, Stas Skarbo,
and the City of New York, similarly alleging that the TLC's policy
of summarily suspending a taxi driver's license upon arrest for any
felony charge or certain enumerated misdemeanor charges violates
the United States Constitution and New York state law.
The two cases were subsequently consolidated, and the Nnebe and
Stallworth Plaintiffs now move to certify a class action against
Nnebe and Stallworth Defendants.
The Plaintiffs move to certify a class defined as "all TLC-licensed
drivers whose licenses were suspended by the TLC based on the
driver having been arrested on a criminal charge any time between
June 28, 2003, until the present (or until Defendants have
implemented a post-suspension hearing process as ordered by the
Court)."
The Plaintiffs propose the following class representatives:
a. Jonathan Nnebe: Nnebe's license was suspended by TLC on
May 30, 2006 based on his arrest on a misdemeanor assault charge.
Following a post-suspension hearing on June 8, 2006, a TLC ALJ
recommended (and the TLC Chair accepted) that his suspension be
continued. As a result, his taxi license was suspended for
approximately four months.
b. Eduardo Avenaut: Avenaut's license was suspended on July
20, 2006, based on his arrest on a misdemeanor assault charge. He
did not request a hearing. The criminal charge was dismissed on
Oct. 24, 2006, at which point TLC reinstated his license.
c. Khairul Amin: Amin's license was suspended on June 14,
2005, following his arrest arising out of a dispute with his
landlord. After a post-suspension hearing, the TLC decided to
continue his suspension. On Aug. 24, 2005, he accepted an
adjournment in contemplation of dismissal so he could return to
work, and the criminal charges were formally dropped on Feb. 23,
2006.
d. Anthony Stallworth: Stallworth's license was suspended on
Aug. 3, 2017, following his arrest for leaving the scene of an
accident. After a post-suspension hearing on Sept. 26, 2017, a TLC
ALJ recommended that his license be reinstated, but the TLC Chair
rejected that recommendation. The criminal charges were dismissed
in December 2017, at which point TLC reinstated his license.
e. Parichay Barman: Barman's license was suspended on Jan.
13, 2017, following his arrest for leaving the scene of an
accident. After a post-suspension hearing on Feb. 21, 2017, an ALJ
recommended (and the TLC Chair accepted) that Barman's suspension
continue. On June 20, 2017, Barman pleaded guilty to a lesser,
non-criminal violation, and TLC reinstated his license.
f. Noor Tani: Tani's license was suspended on April 7, 2017,
following his arrest for leaving the scene of an accident. After a
post-suspension hearing on Mary 15, 2017, an ALJ recommended (and
the TLC Chair accepted) that Tani's suspension be continued. On
June 27, 2017, Tani pleaded guilty to a lesser, non-criminal
violation, and TLC reinstated his license.
These proposed representatives include the Plaintiffs from both the
2006 Nnebe action and the 2017 Stallworth action; each proposed
representative was, "at the time of his suspension, a driver
licensed by the TLC." The Plaintiffs further allege that "the TLC
suspended each of their licenses based on an arrest, served on them
a constitutionally defective pre-hearing notice, and afforded them
a post-suspension hearing process that denied them due process of
law."
The Plaintiffs also request that their counsel, Daniel Ackman,
Shannon Liss-Riordan, and David T. Goldberg, be appointed as the
class counsel pursuant to Federal Rule of Civil Procedure 23(g).
II. Discussion
As an initial matter, Judge Sullivan notes that the Plaintiffs'
paltry submission in support of class certification would support
the denial of their motion on that basis alone, as they have
utterly failed to carry their burden of demonstrating that the Rule
23 requirements are satisfied as to the class they propose -- which
seeks to litigate both liability and damages on a classwide basis
for over 20,000 putative class members with countless varying
individual circumstances bearing on their entitlement to the relief
requested. They have proffered virtually no evidence in support of
their motion; their opening brief has no accompanying exhibits,
declarations, testimony, or affidavits. Their papers are instead
based largely on conclusory allegations that the Rule 23
requirements have been satisfied, with an occasional citation to
evidence submitted in support of their separate motion for an
injunction. The Plaintiffs appear to simply assume that they are
automatically entitled to the certification of their proposed class
in light of the Second Circuit's conclusion that TLC's notice and
hearing procedures were constitutionally deficient.
Judge Sullivan is nonetheless mindful of the history of the
long-running case and the unique posture in which the motion for
class certification is now before the Court. After careful
consideration, therefore, he concludes that although the Plaintiffs
have not met the Rule 23 requirements for certifying a class as to
liability and damages, the Rule 23 requirements are satisfied for a
liability class.
While the Plaintiffs did not request that the Court alternatively
certify a class as to liability alone -- and the Court is under no
obligation to bear the Plaintiffs' burden of carving out an
appropriate class to avoid certification problems -- Judge Sullivan
is nevertheless empowered, under Rule 23(c)(4), to "certify a class
on a particular issue." He determines that certifying a liability
class is appropriate. He concludes that (i) Rules 23(a) and (b)(3)
are satisfied as to a liability class; and (ii) certification under
Rule 23(b)(2) is unnecessary and unwarranted.
Finally, Judge Sullivan revises the class definition so that it is
limited to "all TLC-licensed drivers whose licenses were suspended
by the TLC based on the driver having been arrested on a criminal
charge any time between June 28, 2003, until Feb. 18, 2020." He
explains that a court is not bound by the class definition proposed
in the complaint and should not dismiss the action simply because
the complaint seeks to define the class too broadly.
III. Conclusion
For the reasons set forth, Judge Sullivan granted the Plaintiffs'
motion for class certification as to the issue of liability and
denied in all other respects.
The following class is certified under Rule 23(a) and 23(b)(3): All
TLC-licensed drivers whose licenses were suspended by the TLC based
on the driver having been arrested on a criminal charge any time
between June 28, 2003, until Feb. 18, 2020.
Jonathan Nnebe, Eduardo Avenaut, Khairul Amin, Anthony Stallworth,
Parichay Barman, and Noor Tani are appointed as the Class
epresentatives.
Daniel Ackman, Shannon Liss-Riordan, and David T. Goldberg are
appointed as the class counsel.
The parties will meet and confer and submit an agreed-upon form of
notice that satisfies Rule 23(c)(2)(B). In the event that the
parties are unable to agree on specific language in the proposed
notice, they will submit a joint document in Word format that sets
forth the areas of disagreement, with the Plaintiffs' proposed
language designated in red and the Defendants' proposed language
designated in blue, along with a joint letter setting forth the
reasons for their respective proposals.
The parties will also jointly submit a plan for the dissemination
of the proposed notice, and must work together to generate a class
list to be used in disseminating notice. The proposed notice and
plan of dissemination, as well as a proposed order granting
approval, will be filed with the Court by March 31, 2022.
The parties will appear for a conference in Courtroom 21C, 500
Pearl Street, New York, N.Y. 10007, on April 19, 2022, at 10:00
a.m., to discuss next steps in the litigation, including how the
individualized hearings as to damages will proceed.
The Clerk of Court is respectively directed to terminate the motion
pending at 06-cv-4991, Doc. No. 462 and 17-cv-7119, Doc. No. 80.
A full-text copy of the Court's March 1, 2022 Order is available at
https://tinyurl.com/2p849pu5 from Leagle.com.
OVH GROUPE: Launches Storage Service Amid Data Center Class Action
------------------------------------------------------------------
Peter Judge, writing for Data Center Dynamics, reports that
European cloud provider OVHcloud has launched a High-Performance
Object Storage service designed for Big Data, AI, e-commerce, and
streaming.
The new service is designed to provide local storage for European
customers, with pricing to compete with Amazon's S3 storage
services. It costs EUR25 ($28) per terabyte per month with a charge
of EUR0.01 per outbound gigabyte (before tax).
It is only days till the anniversary of the fire which destroyed
OVHcloud's SBG2 data center in Strasbourg on 9 March 2021, and a
French law firm, Ziegler & Associates, is gathering names for a
class-action lawsuit representing those who lost data and business
in that disaster.
OVHcloud has yet to publish any information about the cause of the
fire.
Amazon's S3 service is the market leader, but evidently vulnerable,
as Cloudflare revealed it had racked up nine thousand customers,
with hundreds of petabytes of data, for a closed beta trial of its
S3 competitor, R2 Object Storage.
The OVHcloud HPOS service is available through the S3 API and the
OVHcloud Customer Panel, and there is no extra charge for API
requests and private outbound traffic. It is available from the
providers Strasbourg data center (France), and will be deployed in
Gravelines (France) by April 2022, and offered internationally in
OVHcloud's Canadian-based and US data centers in May 2022.
OVHcloud has been rebuilding its Strasbourg campus since a fire
ripped through the SBG2 data center there in March 2021, and
temporarily disabled the SBG1 data center. Nearly a year on, the
company has yet to publish details of the cause of the fire, which
is suspected to have started in the data center's UPS batteries.
OVHcloud says it has not been able to publish the report so far
because of the involvement of insurers and government agencies.
Customers unsatisfied with OVHcloud's compensation offers have
turned to Ziegler & Associates, a Paris law firm specializing in
class-action suits, which announced in September that it would take
on OVHcloud demanding compensation for customers who had lost
business. At Ziegler's last announcement, 103 customers had signed
up for the action, while four larger customers are addressing their
complaints directly to OVHcloud. The deadline to join the class
action is next Monday, after which time Ziegler will send a letter
to OVHcloud setting out specific demands for all the complainants.
"The letter is not sent yet, but it will be soon," said a Ziegler
spokesperson.
OVHcloud has declined to comment until the letter arrives, but its
spokespeople have pointed out that even 103 customers is a small
fraction of its customer base. Since the fire, OVHcloud has floated
on the French stock exchange, raising EUR400 million ($454m) in an
IPO in October. In January, the company announced that its revenue
in 2021 was up by 14 percent. [GN]
PETERSON & MYERS: Gentles Sues Over FDCPA Breach
------------------------------------------------
PATRICK GENTLES, individually and on behalf of those similarly
situated, Plaintiff v. PETERSON & MYERS PA, Defendant, Case No.
CACE-22-003075 (Fla. 17th Jud. Cir., Broward Cty., Feb. 28, 2022)
arises from the Defendants' unlawful debt collection practices in
violation of the Fair Debt Collection Practices Act.
The Defendant violated FDCPA because, in light of the least
sophisticated consumer standard, the collection letter sent by the
Defendant and internally dated February 21, 2022, was a deceptive,
misleading, unfair, and otherwise an unconscionable attempt to
collect a time-barred debt, asserts the complaint.
The Plaintiff's debt allegedly arose from a voluntary transaction
between Southeastern University and the Plaintiff involving
educational services.
Peterson & Myers, PA is a business entity engaged in the business
of collecting consumer debts.[BN]
The Plaintiff is represented by:
Jibrael S. Hindi, Esq.
Thomas J. Patti, Esq.
THE LAW OFFICES OF JIBRAEL S. HINDI
110 SE 6th Street, Suite 1744
Fort Lauderdale, FL 33301
Telephone: (954) 907-1136
Facsimile: (855) 529-9540
E-mail: jibrael@jibraellaw.com
tom@jibraellaw.com
QUALITY FACILITY: Fails to Pay Proper Wages, Allen Suit Alleges
---------------------------------------------------------------
NEIL ALLEN, individually and on behalf of all others similarly
situated, Plaintiff v. QUALITY FACILITY SOLUTIONS CORP. d/b/a
Quality Floorshine d/b/a QFS; BIM CLEANING SERVICES INC.; ESTHER
FALKOWITZ; and BRENDAN PACHECO, Defendants, Case No. 1:22-cv-00967,
(E.D.N.Y., Feb. 22, 2022), seeks to recover from the Defendants
unpaid wages and overtime compensation, interest, liquidated
damages, attorneys' fees, and costs under the Fair Labor Standards
Act.
The Plaintiff was employed by the Defendants as staff.
QUALITY FACILITY SOLUTIONS CORP. offers janitorial services, floor
stripping, and refinishing as well as construction labor and
cleanup services. [BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, 8th Floor
New York, NY 10011
Telephone: (212) 465-1188
Facsimile: (212) 465-1181
ROYAL WINNIPEG: Ont. Court Approves $10MM Class Action Settlement
-----------------------------------------------------------------
A $10 million settlement of a class action brought against the
Royal Winnipeg Ballet and its former instructor, Bruce Monk, has
been approved by the Ontario Superior Court of Justice. The
settlement will provide compensation to students of the Royal
Winnipeg Ballet School who were enrolled between 1984 to 2015 and
were photographed by Bruce Monk in a private setting.
The class action alleged that, while Bruce Monk was a teacher and
photographer at the Royal Winnipeg Ballet, he took nude, semi-nude
and intimate photographs of students, some of which he published,
sold, and disseminated online without consent.
Under the terms of the settlement, the RWB will pay $10 million,
and it has issued an apology for the harm that the students
suffered. The apology is accessible on the RWB's website here. The
Defendants have not admitted any liability in entering into the
settlement.
After deduction of legal fees and administration costs, the balance
of the $10 million settlement will be paid to those RWB students
who submit a confidential claim and who are approved as eligible by
independent adjudicators. The claim process will be simplified and
trauma-informed. Claim forms will be available on the claims
administrator's website https://www.rwbclassaction.ca/ by the end
of February, 2022. The claim period will remain open for a year,
until February 28, 2023.
Eligible students will receive a one-time payment of $1,000 for
health services, and their family members will receive a payment of
up to $2,500. The balance will be paid to the eligible students
based upon the severity of the harms they each have endured.
The Court found that the settlement provides "meaningful access to
justice" to the affected students. The Court also approved Class
Counsel's fee request in the total amount of $2,552,500, finding
that the "legal services provided were of the highest quality" in
"this hard-fought litigation".
Additional information about the settlement is available at
http://waddellphillips.ca/class-actions/royal-winnipeg-ballet-class-action/.
Class Counsel are Waddell Phillips Professional Corporation and
Gillian Hnatiw & Co.
Contact:
Royal Winnipeg Ballet Class Action
Tel: (647) 261-4486
reception@waddellphillips.ca
www.waddellphillips.ca [GN]
SHAKER CONTRACTORS: Fails to Pay Proper Wages, Bemejo Suit Claims
-----------------------------------------------------------------
MARCO BEMEJO, WILMER EUCLIDES BUENOLUJA, BRAYAN IGNACIO MUNOZ, JOSE
ALBERTO AGUALSACA, SEGUNDO TACURI, GEOVANNY PULAGUACHI, and SAUL
DOTA CARCHI, individually and on behalf of all others similarly
situated, Plaintiffs v. SHAKER CONTRACTORS, CORP., SHAHBAZ SHER,
and SHAHID SHER, Defendants, Case No.1:22-cv-01427 (S.D.N.Y., Feb.
22, 2022) seeks to recover from the Defendants unpaid wages and
overtime compensation, interest, liquidated damages, attorneys'
fees, and costs under the Fair Labor Standards Act.
The Plaintiffs were employed by the Defendants as laborers.
SHAKER CONTRACTORS, CORP. provides general construction services.
[BN]
The Plaintiffs are represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, PC
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Telephone: (718) 263-9591
Facsimile: (718) 263-9598
SHATTUCK LABS: Levi & Korsinsky Reminds of April 1 Deadline
-----------------------------------------------------------
Levi & Korsinsky, LLP on Feb. 23 disclosed that class action
lawsuits have commenced on behalf of shareholders of the following
publicly-traded companies. Shareholders interested in serving as
lead plaintiff have until the deadlines listed to petition the
court. Further details about the cases can be found at the links
provided. There is no cost or obligation to you.
STTK Shareholders Click Here:
https://www.zlk.com/pslra-1/shattuck-labs-inc-loss-submission-form?prid=23999&wire=1
FENC Shareholders Click Here:
https://www.zlk.com/pslra-1/fennec-pharmaceuticals-inc-loss-submission-form?prid=23999&wire=1
MP Shareholders Click Here:
https://www.zlk.com/pslra-1/mp-materials-corp-f-k-a-fortress-value-acquisition-corp-loss-submission-form?prid=23999&wire=1
* ADDITIONAL INFORMATION BELOW *
Get the inside access traders are using to profit more and win
bigger. Don't miss out on Benzinga Pro! Click here to start a FREE
14-day trial. (No Credit Card Required)
Shattuck Labs, Inc. (NASDAQ:STTK)
This lawsuit is on behalf of persons or entities who purchased or
otherwise acquired publicly traded Shattuck securities: (1)
pursuant and/or traceable to the registration statement and related
prospectus issued in connection with Shattuck's October 2020
initial public offering; and/or (2) between October 9, 2020 and
November 9, 2021, inclusive.
Lead Plaintiff Deadline: April 1, 2022
TO LEARN MORE, VISIT:
https://www.zlk.com/pslra-1/shattuck-labs-inc-loss-submission-form?prid=23999&wire=1
According to the filed complaint, (1) the collaboration agreement
with Takeda was not solid; (2) Takeda and Shattuck would "mutually
agree" to terminate the collaboration agreement in essentially one
year; (3) as a result, Shattuck would cease to receive any future
milestone, royalty, or other payments from Takeda; and (4) as a
result, defendants' statements about the Company's business,
operations, and prospects were materially false and misleading
and/or lacked a reasonable basis at all relevant times.
Fennec Pharmaceuticals Inc. (NASDAQ:FENC)
FENC Lawsuit on behalf of: investors who purchased May 28, 2021 -
November 26, 2021
Lead Plaintiff Deadline: April 11, 2022
TO LEARN MORE, VISIT:
https://www.zlk.com/pslra-1/fennec-pharmaceuticals-inc-loss-submission-form?prid=23999&wire=1
According to the filed complaint, during the class period, Fennec
Pharmaceuticals Inc. made materially false and/or misleading
statements and/or failed to disclose that: (i) Fennec had not
successfully remediated, and overstated its efforts to remediate,
issues with the manufacturing facility of its drug product
manufacturer for PEDMARK, a new compound developed to reduce the
incidence of hearing loss in children undergoing chemotherapy; (ii)
as a result, the Food and Drug Administration likely to approve the
Resubmitted Pedmark New Drug Application ("NDA"); (iii)
accordingly, the regulatory and commercial prospects of the
Resubmitted Pedmark NDA were overstated; and (iv) as a result, the
Company's public statements were materially false and misleading at
all relevant times.
MP Materials Corp. f/k/a Fortress Value Acquisition Corp.
(NYSE:MP)
MP Lawsuit on behalf of: investors who purchased May 1, 2020 -
February 2, 2022
Lead Plaintiff Deadline: April 25, 2022
TO LEARN MORE, VISIT:
https://www.zlk.com/pslra-1/mp-materials-corp-f-k-a-fortress-value-acquisition-corp-loss-submission-form?prid=23999&wire=1
According to the filed complaint, during the class period, MP
Materials Corp. f/k/a Fortress Value Acquisition Corp. made
materially false and/or misleading statements and/or failed to
disclose that: (i) Fortress Value Acquisition Corp. ("FVAC") had
overstated its due diligence efforts and expertise with respect to
identifying target companies to acquire; (ii) FVAC performed
inadequate due diligence into Legacy MP Materials prior to the
business combination, or else ignored significant red flags
regarding, inter alia, Legacy MP Materials' management, compliance
policies, and Mountain Pass's profitability; (iii) as a result, the
Company's future business and financial prospects post-business
combination were overstated; (iv) MP Materials engaged in an
abusive transfer price manipulation scheme with a related party in
the People's Republic of China to artificially inflate the
Company's profits; (v) MP Materials' ore at the Mountain Pass Rare
Earth Mine and Processing Facility was not economically viable to
harvest for rare earth metals; and (vi) as a result, the Company's
public statements were materially false and misleading at all
relevant times.
You have until the lead plaintiff deadlines to request that the
court appoint you as lead plaintiff. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff.
Levi & Korsinsky is a nationally recognized firm with offices in
New York, California, Connecticut, and Washington D.C. The firm's
attorneys have extensive expertise and experience representing
investors in securities litigation and have recovered hundreds of
millions of dollars for aggrieved shareholders. Attorney
advertising. Prior results do not guarantee similar outcomes.
CONTACT:
Levi & Korsinsky, LLP
Joseph E. Levi, Esq.
Eduard Korsinsky, Esq.
55 Broadway, 10th Floor
New York, NY 10006
jlevi@levikorsinsky.com
Tel: (212) 363-7500
Fax: (212) 363-7171
www.zlk.com [GN]
SKY SOURCE: Underpays Field Data Collectors, Cox Suit Says
----------------------------------------------------------
JASON COX and LAUREN COX, individually and on behalf of others
similarly situated, Plaintiffs v. SKY SOURCE AERIAL, LLC and
MICHAEL MCVAY, individually, Defendants, Case No.
2:22-cv-00126-JLB-NPM (M.D. Fla., Feb. 28, 2022) arises from the
Defendant's violation of the Fair Labor Standards Act by failing to
pay proper overtime and back pay wages, as well as violation of the
Florida Deceptive and Unfair Trade Practices Act over unpaid
payroll taxes.
The Plaintiffs began their employment on November 11, 2020, as
field data collectors. They utilized a variety of capture devices
to collect data of cell phone towers.
Sky Source Aerial, LLC is an unmanned aviation company that
provides aerial data collection.[BN]
The Plaintiffs are represented by:
Wolfgang M. Florin, Esq.
Christopher D. Gray, Esq.
FLORIN GRAY BOUZAS OWENS, LLC
16524 Pointe Village Drive, Suite 100
Lutz, FL 33558
Telephone: (727) 220-4000
Facsimile: (727) 483-7942
E-mail: wflorin@fgbolaw.com
cgray@fgbolaw.com
STANDARD LITHIUM: Rosen Law Firm Reminds of March 28 Deadline
-------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, reminds
purchasers of the securities of Standard Lithium Ltd. (NYSE
American: SLI) between May 19, 2020 and November 17, 2021,
inclusive (the "Class Period"), of the important March 28, 2022
lead plaintiff deadline.
SO WHAT: If you purchased Standard Lithium securities during the
Class Period you may be entitled to compensation without payment of
any out of pocket fees or costs through a contingency fee
arrangement.
WHAT TO DO NEXT: To join the Standard Lithium class action, go to
https://rosenlegal.com/submit-form/?case_id=2746 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than March 28, 2022. A
lead plaintiff is a representative party acting on behalf of other
class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Many of these firms do not actually
handle securities class actions, but are merely middlemen that
refer clients or partner with law firms that actually litigate the
cases. Be wise in selecting counsel. The Rosen Law Firm represents
investors throughout the globe, concentrating its practice in
securities class actions and shareholder derivative litigation.
Rosen Law Firm has achieved the largest ever securities class
action settlement against a Chinese Company. Rosen Law Firm was
Ranked No. 1 by ISS Securities Class Action Services for number of
securities class action settlements in 2017. The firm has been
ranked in the top 4 each year since 2013 and has recovered hundreds
of millions of dollars for investors. In 2019 alone the firm
secured over $438 million for investors. In 2020, founding partner
Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar.
Many of the firm's attorneys have been recognized by Lawdragon and
Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) the LiSTR Direct Lithium
Extraction ("LiSTR") technology's extraction recovery efficiencies
were overstated; (2) accordingly, Standard Lithium's final product
lithium recovery percentage at the Direct Lithium Extraction
Demonstration Plant at Lanxess's South Plant facility in southern
Arkansas (the "Demonstration Plant") would not be as high as the
Company had represented to investors; and (3) as a result,
defendants' public statements were materially false and misleading
at all relevant times. When the true details entered the market,
the lawsuit claims that investors suffered damages.
To join the Standard Lithium class action, go to
https://rosenlegal.com/submit-form/?case_id=2746 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
SUGAR CORP: Florida Residents Dropped Suit Over Sugar Crop Burns
----------------------------------------------------------------
winknews.com reports that a lawsuit claiming that the sugar
industry's controlled crop burns are dangerous to nearby residents
in Florida was dropped.
Attorneys for several of Florida's largest sugar companies and
attorneys for a dozen residents from Glades, Hendry and Palm Beach
counties agreed in West Palm Beach federal court that the case
should be dismissed with prejudice and each side should pay their
own attorney fees, according to court records.
The class-action lawsuit was filed in June 2019, claiming the burns
reduce property values and compromise air quality with toxic
carcinogens.
One of the companies named in the lawsuit was U.S. Sugar
Corporation, the largest producer of sugar cane in the United
States by volume. Company spokeswoman Judy Sanchez said sugarcane
farmers have maintained from the start that the lawsuit was without
merit.
"We believed the science, data and regulations that support our
work every day would show that the air quality in the Glades is
'good' - the highest quality under federal regulations," Sanchez
said.
U.S. Sugar recently released three years of air quality data from
public and private monitors located throughout the farming
communities. Sanchez said every monitor provided consistent data
confirming the air is safe and meets all state and federal
clean-air standards.
Attorneys for the residents didn't immediately respond to emails
from The Associated Press.
For generations, Florida's sugarcane farmers have legally set fire
to their fields prior to the harvest, leaving only the cane. The
practice reduces transportation costs because they ship the cane
without the surrounding vegetation. According to state data, cane
growers burned more than 1.5 million acres (2 million hectares) of
sugarcane between 2008 and 2018 in the area south of Lake
Okeechobee. That's a land mass about the size of Delaware.
In several major sugar-producing countries such as Brazil, the
practice is being phased out due to health concerns. The fires can
produce sooty plumes of smoke that hover over the surrounding
communities and dust the area with burnt flakes of plant matter.
The industry standard in Brazil involves repurposing plant waste
into mulch, bioplastics or a clean energy source. [GN]
THERMOFLEX WAUKEGAN: Wins Judgment on Pleadings in Citizens Suit
----------------------------------------------------------------
In the case, CITIZENS INSURANCE COMPANY of AMERICA, and HANOVER
INSURANCE COMPANY, Plaintiffs and Counter Defendants v. THERMOFLEX
WAUKEGAN, LLC, Defendant and Counter Plaintiff, v. GREGORY GATES,
Defendant, Case No. 20-cv-05980 (N.D. Ill.), Judge John F. Kness of
the U.S. District Court for the Northern District of Illinois,
Eastern Division, issued a Memorandum Opinion and Order:
(i) denying the Insurers' motion for judgment on the
pleadings as to the Insurers' duties to defend (except
Count I) and dismissing without prejudice as to the
Insurers' duties to indemnify; and
(ii) granting Thermoflex's motion for judgment on the
pleadings.
I. Background
Insurers Citizens Insurance Company of America and Hanover
Insurance Company sold Thermoflex insurance policies that, among
other things, obligate the Insurers to defend and indemnify
Thermoflex in suits arising out of privacy violations. When Gregory
Gates -- an employee of Thermoflex -- brought a purported class
action against Thermoflex ("Gates Lawsuit") in state court under
the Illinois Biometric Information and Privacy Act (BIPA) based on
Thermoflex's collection of its employees' handprint data, which
Thermoflex allegedly used for authentication and timekeeping
purposes -- a law that protects against privacy violations --
Thermoflex sought coverage under the Policies.
After denying Thermoflex's request on Sept. 29, 2020, the Insurers
brought the suit on October 7 against Thermoflex, asking the Court
to declare that they owe no duties to defend or indemnify
Thermoflex in the Gates Lawsuit. On November 16, they filed a
second amended complaint. The Insurers allege that certain
provisions of the Policies absolve them of their duties "to defend
or indemnify Thermoflex in connection with the Gates Lawsuit."
On Nov. 30, Thermoflex answered and asserted four counterclaims,
asking the Court to declare the Insurers' duties to defend it
(Counterclaims I and II) and asserting breach-of-contract claims
against the Insurers based on their failure to defend Thermoflex in
the ongoing Gates Lawsuit (Counterclaims III and IV).
In January and February 2021, the Insurers and Thermoflex filed
separate motions for judgment on the pleadings. The Insurers seek
declarations that they have no duties to defend or indemnify
Thermoflex in connection with the Gates Lawsuit, as well as a
declaration that they did not breach the Policies by declining to
defend Thermoflex. Thermoflex seeks declarations that the Insurers
have duties to defend it in the Gates Lawsuit.
II. Discussion
A. The Insurers' Duties to Defend Thermoflex in the Gates Lawsuit
Thermoflex asserts in Counterclaims I and II that the Policies
obligate the Insurers to defend it in the Gates Lawsuit because
that suit arises out of a "personal or advertising injury." The
Policies define "personal and advertising injuries" to include
"oral or written publications, in any manner, of material that
violates a person's right of privacy."
Thermoflex argues that, "by alleging BIPA violations, the Gates
complaint alleges an injury arising out of the publication of
material that violates the privacy rights of the putative class,
and the allegations of the complaint fall within, or at least
potentially within, the coverage for personal injury afforded by
the policies at issue." The Insurers apparently concede this point,
arguing only that the Policies do not apply "by reason of the
Employment-Related Practices Exclusion, the Recording and
Distribution of Material or Information Exclusion, and the Access
or Disclosure of Confidential or Personal Information Exclusion."
As the Illinois Supreme Court has explained, BIPA "codified that
individuals possess a right to privacy in and control over their
biometric identifiers and biometric information." Accordingly, the
Gates Lawsuit, which alleges that Thermoflex violated BIPA, arises
out of an alleged "personal or advertising injury." Unless an
exception in the Policies unambiguously applies to preclude
coverage, the Insurers must defend Thermoflex in the Gates
Lawsuit.
1. Employment-Related Practices Exclusions - Counts II and VII
The Insurers first direct the Court to provisions in the Policies
that exclude coverage for certain employment-related practices.
Those provisions (the Employment-Related Practices exclusions)
explain that claims for "personal and advertising injuries" do not
extend to "employment-related practices, policies, acts or
omissions, such as coercion, demotion, evaluation, reassignment,
discipline, defamation, harassment, humiliation, discrimination or
malicious prosecution directed at that person."
Judge Kness opines that the claims in the Gates Lawsuit do not
unambiguously share "general similitude with the matters
specifically enumerated in the employment-related practices
exclusion." Accordingly, the Employment-Related Practices
exclusions do not absolve the Insurers of their obligations to
defend Thermoflex in the Gates Lawsuit.
2. Recording and Distribution Exclusions - Counts III and VIII
The Insurers also direct the Court to provisions of the Policies
excluding coverage for "personal injuries" arising under certain
laws. They claim that, because the Gates Lawsuit alleges an injury
under BIPA, the catch-all in the exclusions -- paragraph (4) --
bars coverage. Thermoflex argues that the exclusion should be
construed narrowly, and it directs us to doctrines that mandate
such a narrow interpretation.
Judge Kness holds that on its face, BIPA is not "of the same kind,"
as the TCPA, the CAN-SPAM Act, or the FCRA. The TCPA and CAN-SPAM
"regulate methods of communication: The TCPA (telephone calls and
faxes) and the CAN-SPAM (e-mails)"; the FCRA, meanwhile, "regulates
the use of materials such as background reports." BIPA, by
contrast, "regulates the collection, use, storage, and retention of
biometric identifiers and information." At best, it is unclear
whether BIPA is sufficiently similar to those other statutes; at
worst, BIPA is different in kind. Because the exclusions "may be
viewed as ambiguous," the Policies "must be construed in favor of
finding coverage" for Thermoflex.
3. Access or Disclosure Exclusions - Counts IV and VI
Finally, the Insurers direct the Court to provisions of the
Policies excluding certain types of claims from coverage. They
argue that the Access or Disclosure exclusions bar coverage because
the Gates Lawsuit "alleges that Thermoflex accessed and disclosed
its employees' biometric information." Thermoflex, by contrast,
argues that the exclusion "is not broad enough to include biometric
identification information such as that protected by BIPA." Because
"biometric information" (and, more narrowly, handprint information)
is not listed in the exclusion, the question is whether that
information falls within the catch-all for "any other type of
nonpublic information.
Judge Kness opines that applying the noscitur a sociis canon to the
Access or Disclosure Exclusions yields "more than one reasonable
interpretation." As with other exclusions at issue in the case, it
is at best unclear whether BIPA treats handprints as "confidential
and sensitive information." Judge Kness resolves the Policies'
ambiguity in favor of the insured.
4. Conclusion
Judge Kness concludes that the Insurers have not directed the Court
to any exclusions in the Policies that unambiguously preclude
coverage. As a matter of law, therefore, the Insurers have duties
to defend Thermoflex in the Gates Lawsuit.
B. The Insurers' Duties to Indemnify Thermoflex
Whether the Insurers are entitled to a declaratory judgment that
they have no duties to indemnify any potential state-court judgment
against Thermoflex is less certain. Judge Kness opines that at this
stage, the Court is unable to assess the various factors relevant
to whether an exception to the general rule exists. The Insurers
allege no details about the strength of Gates's state-law claims,
the extent of potential damages, or the existence of other
insurance coverage to which Thermoflex can turn if found liable. As
a result, without a firmer base of probability, displace in this
instance the general rule that the "duty to indemnify is unripe
until the insured has been held liable."
In addition to concerns about justiciability, the uncertainty
whether Thermoflex will ever face a judgment of liability in the
Gates Lawsuit is similarly relevant to the Court's decision as to
how it should exercise its discretion under the Declaratory
Judgment Act. Whether to issue a declaration under the Declaratory
Judgment Act concerning the respective rights of litigants rests
within a court's discretion. In view of the unresolved nature of
the underlying state case, the Court would -- even if the question
of whether Insurers owe duties to indemnify Thermoflex were
otherwise justiciable -- nonetheless exercise its "unique and
substantial discretion" and decline at this point to determine the
Insurers' duties to indemnify Thermoflex.
III. Conclusion
For these reasons, Judge Kness granted Thermoflex's motion, and
denied the Insurers' motion as to their duties to defend Thermoflex
in the Gates Lawsuit. Under Illinois law (which governs the Court's
interpretation of the Policies), any ambiguity in the Policies is
resolved in favor of the insured; all that Thermoflex needs to
establish the Insurers' duties to defend is to show that the Gates
Lawsuit is "potentially or arguably" within the scope of coverage.
Because the Policies "arguably" cover the BIPA claims in the Gates
Lawsuit, and because none of the exceptions in the Policies
unambiguously precludes coverage, the Insurers are obligated to
defend Thermoflex. Judgment on the pleadings is granted as to
Counts I and II of Thermoflex's amended counterclaims.
Separately, the Insurers' claims that they owe no duties to
indemnify Thermoflex are not ripe because there has not been any
determination of liability in the Gates Lawsuit. It is unclear
whether the conduct at issue in the Gates Lawsuit (collection of
employees' handprints) is an employment-related practice like
"coercion, demotion, evaluation, reassignment, discipline,
defamation, harassment, humiliation, discrimination or malicious
prosecution." Accordingly, those claims are dismissed without
prejudice.
A full-text copy of the Court's March 1, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/ss5249sh from
Leagle.com.
TSCHETTER SULZER: Tenants File Suit Over Misleading Agreement
-------------------------------------------------------------
Catie Cheshire, writing for Westword, reports that Tschetter
Sulzer, a Denver law firm, bills itself as "#1 in Colorado
Evictions" on its website. But according to a class-action lawsuit
filed on January 31, one tool it's used to achieve that title is
misleading tenants.
9to5 Colorado, which promotes various equity issues in the state
including affordable housing, helped Denver resident Shawnte Warden
file the class-action lawsuit in U.S. District Court. It claims
that Tschetter Sulzer deceives tenants with a "Stipulation" form
that makes them think they will have more time to relocate if they
don't contest their eviction, and that the eviction might not be on
their permanent record if they vacate their homes quickly.
"A tenant confesses judgment by signing an agreement (the agreement
is called a 'Stipulation') that the tenant is not contesting the
case and acknowledges that the landlord is legally entitled to
possession of the property," the Tschetter Sulzer website notes.
In Colorado, when tenants do not appear in court or contest
eviction cases, landlords are granted a writ for eviction that is
given to the sheriff of that jurisdiction, who then schedules the
physical eviction. According to Tschetter Sulzer's website, "In
most cases, sheriff's [sic] take three to six weeks to execute a
writ from the date the writ is delivered to the sheriff."
But according to the lawsuit, when Warden lived at Mint Urban
Infinity -- whose tenants filed a class-action suit against the
management company for poor conditions last fall -- she received a
notice on January 26, 2021, that she would have to appear in court
on February 1 for an eviction notice. Tschetter Sulzer sent her a
packet on January 31 that included a link to its website asking her
to verify her identity, the suit notes; once she did that, the
company sent her a link to the "Stipulation" agreement, which she
then signed.
Along with implying that she would have more time to relocate by
signing the agreement than if she lost in court, the law firm "also
led her to believe that it if she moved out of her home and
surrendered her keys before February 11, 2021, Tschetter would move
the Denver County Court to vacate the judgment for possession
entered against her and dismiss the eviction collection lawsuit
without prejudice," the suit says.
Warden moved out by February 4, but the suit claims that Tschetter
Sulzer did not dismiss the eviction collection lawsuit as Warden
believed it would. As a result, Warden's rental application at
another property in August 2021 was denied because of her past
eviction.
Cesiah Guadarrama Trejo, 9to5 Colorado's co-associate director,
says that tenants who get a notice of eviction usually don't
understand their rights. "It can be really scary if you've never
received a document like that to understand…what's next and what
are my rights as a tenant," she says. "We want folks to understand
that there's a legal process."
Tschetter Sulzer, a Denver law firm, bills itself as "#1 in
Colorado Evictions" on its website. But according to a class-action
lawsuit filed on January 31, one tool it's used to achieve that
title is misleading tenants.
9to5 Colorado, which promotes various equity issues in the state
including affordable housing, helped Denver resident Shawnte Warden
file the class-action lawsuit in U.S. District Court. It claims
that Tschetter Sulzer deceives tenants with a "Stipulation" form
that makes them think they will have more time to relocate if they
don't contest their eviction, and that the eviction might not be on
their permanent record if they vacate their homes quickly.
"A tenant confesses judgment by signing an agreement (the agreement
is called a 'Stipulation') that the tenant is not contesting the
case and acknowledges that the landlord is legally entitled to
possession of the property," the Tschetter Sulzer website notes.
In Colorado, when tenants do not appear in court or contest
eviction cases, landlords are granted a writ for eviction that is
given to the sheriff of that jurisdiction, who then schedules the
physical eviction. According to Tschetter Sulzer's website, "In
most cases, sheriff's [sic] take three to six weeks to execute a
writ from the date the writ is delivered to the sheriff."
But according to the lawsuit, when Warden lived at Mint Urban
Infinity -- whose tenants filed a class-action suit against the
management company for poor conditions last fall -- she received a
notice on January 26, 2021, that she would have to appear in court
on February 1 for an eviction notice. Tschetter Sulzer sent her a
packet on January 31 that included a link to its website asking her
to verify her identity, the suit notes; once she did that, the
company sent her a link to the "Stipulation" agreement, which she
then signed.
Along with implying that she would have more time to relocate by
signing the agreement than if she lost in court, the law firm "also
led her to believe that it if she moved out of her home and
surrendered her keys before February 11, 2021, Tschetter would move
the Denver County Court to vacate the judgment for possession
entered against her and dismiss the eviction collection lawsuit
without prejudice," the suit says.
Warden moved out by February 4, but the suit claims that Tschetter
Sulzer did not dismiss the eviction collection lawsuit as Warden
believed it would. As a result, Warden's rental application at
another property in August 2021 was denied because of her past
eviction.
Cesiah Guadarrama Trejo, 9to5 Colorado's co-associate director,
says that tenants who get a notice of eviction usually don't
understand their rights. "It can be really scary if you've never
received a document like that to understand…what's next and what
are my rights as a tenant," she says. "We want folks to understand
that there's a legal process."
That legal process includes a trial in which the court could rule
in favor of the tenant, as well as a chance for tenants to work out
a solution with landlords by paying the entire amount they owe if
they confess judgment. But if tenants sign a "Stipulation" like the
one Tschetter Sulzer provides, she says, they lose their chance at
either option.
The plaintiffs in this class-action case include over 100 people
who signed the "Stipulation" and still had an eviction noted on
their record; they also had to relocate more quickly than if they
had gone through the entire legal process, according to the
filing.
In a press release, the law firm states that "Tschetter Sulzer,
P.C. contends that, at all times, it acted appropriately and the
allegations in the lawsuit are groundless." It declined to comment
further. 9to5 Colorado spoke for Warden.
"Eviction and displacement is probably one of the worst things that
somebody can go through," Guadarrama Trejo says. "It kind of
creates a ripple effect of other impacts in their life. Finding
other housing becomes extremely difficult."
Because Colorado's rental market is so competitive, people with an
eviction on their record are often written off as potential
tenants, she adds.
"The impact that it creates for families is very real," she says.
"If folks don't have housing, how can they recover when they're
sick? How can their children go to school and say, 'I'm going to
focus on school,' when they don't know where they're going to
sleep?" [GN]
U.S. OF ARITZIA: Hanyzkiewicz Files ADA Suit in E.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against United States of
Aritzia, Inc. The case is styled as Marta Hanyzkiewicz, on behalf
of herself and all others similarly situated v. United States of
Aritzia, Inc., Case No. 1:22-cv-01196 (E.D.N.Y., March 4, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Aritzia -- https://www.aritzia.com/us/en/home -- offers the latest
women's clothing and accessories from jackets, coats, sweaters, and
dresses.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
285 Passaic Street
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
U.S. SOCCER: Women's Soccer Team Suit Reaches Equal Pay Settlement
------------------------------------------------------------------
Dave Zirin at MSNBC reports that the class-action lawsuit calling
for equal pay that was filed by all 28 members of the World
Cup-winning U.S. women's soccer team was perhaps the most powerful
and provocative story involving sports and politics that we've seen
over the last five years, and to the delight of many people across
the sports world, it ended when all parties settled for $24
million, $22 million of which will be split among the athletes.
The remaining $2 million is to go to charities that benefit women
and girl's soccer programs and to help players with their
post-retirement transitions. However, none of the money gets
released until a new collective bargaining agreement is signed
between U.S. Soccer and the players' union.
Megan Rapinoe, women's soccer biggest star and one of the five
original players who filed the suit, told ESPN: "There's no real
justice in this other than this never happening again. With the
settlement of the working conditions and this settlement which is
contingent upon a CBA that will have equal pay going forward,
there's no other way to look at it than just a monumental win for
women's sports and women's soccer, in particular."
But not everyone agrees. In a post on the Sports Fan Coalition
blog, former team goalkeeper and Hall of Famer Hope Solo called the
decision "infuriating and heartbreaking" and took a shot at Rapinoe
and Alex Morgan, perhaps the team's second-most high-profile
player. "They both know this is not a win," Solo said. "They know
it's an easy out of a fight they were never really in."
Solo wrote: "Read the fine print. 'Contingent upon the negotiation
of a new collective bargaining agreement.' It doesn't exist yet and
is not guaranteed. If the players had ever been successful in
negotiating an equal CBA, there would've been no reason to sue the
federation in the first place."
It is a shame and a sin that Rapinoe, Morgan and Solo are not
seeing eye to eye on this because they are both making the same
critical point. As exciting as this settlement is, it does not mean
anything unless a new collective bargaining agreement is signed
that guarantees equal pay going forward
The fight over how much the women should be paid galvanized players
and fans - the chants of "equal pay" at the World Cup were iconic -
while making USA soccer look positively antediluvian. In U.S.
soccer, women are the ones who get ratings, win World Cups and
become commercial stars; the men tend to lose and lose badly. But
the women have been making less money for work that wasn't just
equal, but superior, to their male counterparts. They've embodied
the old saying that "Women who seek to be equal with men lack
ambition."
Settlement has not only been embraced by most of the soccer world
but also people involved in the general labor movement. Erica
Smiley, co-author of the new book "The Future We Need: Organizing
for a Better Democracy in the Twenty-First Century," sent me the
following email: "The USWNT's enormous victory for equal pay speaks
to the power of collective action and serves as an inspiration for
the millions of working women fighting for equal pay for equal work
or just having a voice on-the-job. From the soccer players on the
women's national team to the factory workers, fast food workers,
educators, and more, we know what is possible when workers are in
decision-making roles. The outcomes are almost always better."
U.S. Soccer President Cindy Parlow Cone believes that a collective
bargaining agreement can be signed as soon as March. If that day
comes to pass, then let's break out the party hats, but until then
it is wise to keep everyone's powder dry. There is an old
expression in the labor movement that the best way to avoid a
strike is to prepare for one. The women's players' union surely
knows this. They need to prepare the players that a win on the road
to final victory still means that you are on the road and that you
have yet to reach the ultimate destination. [GN]
WAKEFERN FOOD: Myers' Amended Class Suit Dismissed With Prejudice
-----------------------------------------------------------------
In the case, EILEEN MYERS, individually and on behalf of all others
similarly situated, Plaintiff v. WAKEFERN FOOD CORP., Defendant,
Case No. 20 Civ. 8470 (NSR) (S.D.N.Y.), Judge Nelson S. Roman of
the U.S. District Court for the Southern District of New York
granted the Defendant's motion to dismiss the Plaintiff's Amended
Complaint.
I. Background
The putative class action alleges that Defendant Wakefern
misrepresented the purported natural, non-artificial origin of the
vanilla flavoring of its "Coconutmilk" from its Wholesome Pantry
brand to consumers. Plaintiff Myers alleges the Product's label is
misleading because the Product is not mainly flavored from vanilla
and contains artificial flavors. She claims that the Defendant is
required to identify the flavoring by its specific name, vanillin
or "artificial flavor," on the ingredient list, but that it failed
to do so. The Plaintiff further claims that she would not have paid
as much for the Product absent the Defendant's false and misleading
statements and omissions.
On Oct. 12, 2020, the Plaintiff filed the original operative class
action complaint. On March 10, 2021, the Defendant filed a letter
seeking leave to file a motion to dismiss, which also stated the
grounds on which it would move for dismissal. The next day, the
Plaintiff requested an extension of time to file an amended
complaint that would address the deficiencies set forth in the
Defendant's letter and obliviate the need for a motion to dismiss,
which the Court subsequently granted.
On April 26, 2021, the Plaintiff filed her Amended Complaint on
behalf of all purchasers of the Product who reside in New York,
asserting claims for (1) violation of New York General Business Law
Sections 349 and 350; (2) breach of express warranty; (3) breach of
implied warranty of merchantability; (4) violation of the Magnuson
Moss Warranty Act; (5) negligent misrepresentation; (6) fraud; and
(7) unjust enrichment. As relief, she seeks both monetary damages
and injunctive relief that would require Defendant to correct the
Product's allegedly misleading label.
On May 26, 2021, the Defendant again sought leave to file a motion
to dismiss, which the Court subsequently granted and issued a
briefing schedule. On Aug. 17, 2021, the parties filed their
respective briefing on the instant motion: the Defendant its notice
of motion, memorandum in support, reply; and the Plaintiff her
response in opposition.
II. Discussion
The Plaintiff asserts claims against the Defendant for (1)
violations of Sections 349 and 350 of the New York General Business
Law ("GBL"), (2) negligent misrepresentation, (3) breach of express
warranty, (4) breach of implied warranty of merchantability, (5)
violation of the Magnuson Moss Warranty Act, (6) fraud, and (7)
unjust enrichment. The Defendant seeks to dismiss all claims based
on several grounds, including: (1) failure to plausible allege
consumer deception; (2) federal preemption; and (3) lack of
standing to seek injunctive relief.
A. New York General Business Law Sections 349 and 350
1. "Vanilla" label is not misleading
The Plaintiff first claims that the word "vanilla," viewed together
with the picture of two vanilla beans and vanilla flower, on the
Product's front label is misleading because it implies that the
Product's flavor is derived predominantly from extracts of vanilla
beans, when in fact, it contains a negligible amount of the same
and artificial flavors.
Judge Roman concludes that the Product's "vanilla" label would not
lead a reasonable consumer to understand its flavor to be derived
mostly or exclusively from the vanilla bean. The "Defendant's
Product does not use the words 'vanilla bean' or 'vanilla extract,'
nor does it use language such as 'made with vanilla; or anything
similar." Instead, "the Product makes one representation -- that it
is vanilla flavored -- and the Plaintiff does not allege that the
Product did not deliver on that representation." Hence, when
assessing the Product's packaging as a whole, "a reasonable
consumer would conclude that the coconut milk only has a vanilla
flavor. There is no claim anywhere on the packaging that vanilla is
the predominant source of the vanilla flavor." Simply put, a
reasonable consumer would associate the word "vanilla" in the
Product's front label with the coconut milk's flavor and not as a
particular ingredient, much less the predominant one.
2. Plaintiff fails to sufficiently plead how the "No Artificial
Flavors" label is misleading
The Plaintiff next claims that the Product's packaging is
misleading because (1) its ingredient list contains only "natural
flavors" and (2) its front label represents to contain "no
artificial flavors," when in fact, it contains synthetic,
non-natural vanilla flavoring. She further argues that she has
alleged "several factual and inferential claims that sufficiently
establish that the guaiacol and vanillin in this Product are from
artificial sources."
Judge Roman holds that the Plaintiff has failed to sufficiently
allege that the Defendant misrepresented that its Product contains
no artificial flavors. She fails to provide any details whatsoever
about the laboratory test entailed. Moreover, from the Plaintiff's
conclusory allegations alone, Judge Roman cannot draw a reasonable
inference that the Product's vanilla flavoring derives from
artificial sources. Accordingly, he concludes that the Plaintiff
has failed to sufficiently allege that Defendant misrepresented
that its Product contains no artificial flavors.
3. No private enforcement of the Food and Drug Administration
regulations
Throughout her Amended Complaint, the Plaintiff also refers to
certain regulations of the Food and Drug Administration (FDA) in
alleging that Defendant misrepresented the origins of the Product's
vanilla flavoring in its packaging. But to the extent that the
Plaintiff is bringing a separate cause of action premised on an
alleged violation of an FDA regulation, Judge Roman opines that the
case law is clear that any such claim must be dismissed because
there is no private right of action to enforce FDA regulations. Nor
does New York's GBL fill the gap by creating a state law claim
solely as a result of a violation of federal labeling regulations.
The Plaintiff cannot state a claim here because, for reasons
described above, the conduct alleged to violate the FDA regulations
is not so inherently deceptive as to be misleading to a reasonable
consumer under GBL Section 349-50.
Because he concludes that the Plaintiff has not plausibly alleged
that the Product's label is misleading to a reasonable consumer,
Judge Roman will dismiss the Plaintiff's claims under GBL Sections
349 and 350 of the GBL. It is therefore not necessary to reach the
Defendant's argument that these claims are preempted by federal
law.
B. Remaining Claims
The Plaintiff also asserts claims for negligent misrepresentation,
breach of express warranty, breach of implied warranty of
merchantability, violation of the Magnuson Moss Warranty Act,
fraud, and unjust enrichment. These claims, which largely hinge on
the core theory of consumer deception, all fail as a matter of
law.
1. Plaintiff's claim for negligent misrepresentation fails
As he discussed, Judge Roman finds that the Plaintiff has not
plausibly alleged that the Product's label imparts incorrect
information to consumers. Furthermore, the Plaintiff has not
plausibly alleged the existence of a special or a privity-like
relationship in order to bring a negligent misrepresentation claim.
The Plaintiff claims that a duty exists "based on the Defendant's
position, holding itself out as having special knowledge and
experience in the sale of the product type." But the case law is
clear that the transactions alleged are insufficient to establish a
special relationship for the purposes of a negligent
representation. Accordingly, the Plaintiff's negligent
misrepresentation claim fails.
2. Plaintiff's claim for breach of express warranty fails
To state a claim for an express breach of warranty under New York
law, plaintiffs must plead "(1) the existence of a material
statement amounting to a warranty, (2) the buyer's reliance on this
warranty as a basis for the contract with the immediate seller, (3)
breach of the warranty, and (4) injury to the buyer caused by the
breach."
As Judge Roman discussed, as alleged, the Product does not
represent that its flavor is derived predominantly from extracts of
vanilla beans and a reasonable consumer would not interpret the
representation of "Vanilla" to make such claim. Such "generalized
statements by the Defendant do not support an express warranty
claim if they are such that a reasonable consumer would not
interpret the statement as a factual claim upon which he or she
could rely." Accordingly, the Plaintiff's breach of express
warranty claim fails.
3. Plaintiff's claim for breach of implied warranty of
merchantability fails
A breach of implied warranty of merchantability occurs when the
product at issue is "unfit for the ordinary purposes for which such
goods are used."
While the Amended Complaint alleges that the Product does not
derive its vanilla flavor from natural flavors, Judge Roman opines
that it does not otherwise allege that the Product is unfit for
human consumption. Notwithstanding, the Plaintiff argues this claim
is viable because the Product was not "not capable of passing
without objection in the trade." But even on this basis, the claim
fails for the same reasons as the express warranty claim.
Accordingly, the Plaintiff's claim for breach of implied warranty
of merchantability fails.
4. Plaintiff's claim under the Magnuson Moss Warranty Act fails
The Plaintiff brings a claim under the Magnuson Moss Warranty Act
("MMWA"), 15 U.S.C. Sections 2301, et seq. To state a claim under
MMWA, plaintiffs must adequately plead a cause of action for breach
of written or implied warranty under state law. Hence, as her state
law claims for express and implied warranty fail, the Plaintiff's
MMWA claim similarly fails for the same reasons.
5. Plaintiff's claim for fraud fails
To state a claim of fraud under New York law, the Plaintiff must
allege (1) a material misrepresentation or omission of fact, (2)
made with knowledge of its falsity, (3) with an intent to defraud,
and (4) reasonable reliance on the part of the Plaintiff, (5) that
causes damage to her. A claim of fraud must be alleged with the
particularity required by Federal Rule of Civil Procedure 9(b),
which "requires that the plaintiff (1) detail the statements (or
omissions) that the plaintiff contends are fraudulent, (2) identify
the speaker, (3) state where and when the statements (or omissions)
were made, and (4) explain why the statements (or omissions) are
fraudulent."
Judge Roman concludes that the Plaintiff has failed to allege a
material misrepresentation of fact or omission because a reasonable
consumer would not conclude that the Product's label communicates
that the Product's vanilla flavor derives predominantly from
extracts of vanilla beans. Furthermore, she fails to plead facts
that give rise to an interest of fraudulent intent. The Amended
Complaint merely contains conclusory statements that Defendant's
intent "is evinced by its failure to accurately disclose the
attributes and qualities of the Product when it knew not doing so
would mislead consumers." Therefore, the Plaintiff's fraud claim
fails.
6. Plaintiff's claim for unjust enrichment fails
Under New York law, an unjust enrichment claim requires "(1) that
the defendant benefitted; (2) at the plaintiff's expense; and (3)
that equity and good conscience require restitution."
Judge Roman finds that the Plaintiff has failed to allege that any
gains to Defendant would be unjust because she has not plausibly
alleged that a reasonable consumer would be misled or deceived by
the Product's label. Thus, the Plaintiff's unjust enrichment claim
fails.
C. Injunctive Relief
Finally, the Plaintiff seeks injunctive relief for the Defendant
"to remove, correct and/or refrain from the challenged practices
and representations, and restitution and disgorgement for members
of the class pursuant to the applicable laws." Because the
underlying claims on which her requested injunctive relief depends
fail, Judge Roman denies the Plaintiff's request for injunctive
relief.
D. Leave to Amend
Judge Roman opines that the Plaintiff has already amended once,
after having the benefit of a pre-motion letter from the Defendant
stating the grounds on which it would move to dismiss. Generally, a
plaintiff's failure to fix deficiencies in the previous pleading,
after being provided notice of them, is alone sufficient ground to
deny leave to amend. Further, while the Plaintiff requested leave
to file a Second Amended Complaint within the last sentence of her
response in opposition, she has not otherwise suggested that she is
in possession of facts that would cure the deficiencies that the
Defendants highlighted in the instant motion and that Judge Roman
highlighted in his Opinion.
III. Conclusion
For the foregoing reasons, Judge Roman granted the Defendant's
motion to dismiss and dismissed the Plaintiff's Amended Complaint
with prejudice. The Clerk of Court is directed to terminate the
motion at ECF No. 15 and the action, to enter judgment accordingly,
and to close the case.
A full-text copy of the Court's March 1, 2022 Opinion & Order is
available at https://tinyurl.com/yrp3b7z9 from Leagle.com.
WASHINGTON, DC: Agrees to Jail Inspections for Settlement Purposes
------------------------------------------------------------------
Michelle Serban, writing for The Georgetown Voice, reports that the
D.C. Department of Corrections (DOC) has agreed to five unannounced
inspections of the D.C. Jail over the next six months as part of a
recent class-action lawsuit settlement. These inspections will be
measuring the prison's compliance with COVID-19 protocols after the
lawsuit raised unsafe practices at the jail.
Since the beginning of the pandemic, there has been concern for the
health of incarcerated people: during the first pandemic wave,
about 60 percent of incarcerated people were quarantined and had a
per capita infection rate 15 times that of the entire D.C.
population. The American Civil Liberties Union (ACLU) of D.C. and
the Public Defender Service (PDS) filed a class-action lawsuit
against the DOC in 2020 to ensure safe conditions for incarcerated
people.
"[DOC] disregarded [the risks of COVID-19] by failing to take
comprehensive, timely, and proper steps to stem the spread of the
virus," Judge Colleen Kollar-Kotelly said in a preliminary
injunction.
The lawsuit included claims that the staff had no masks or gloves,
that there was no social distancing, and that people were told to
use their own towels to wipe down their cells. There were also
accusations that the "sick call slips" incarcerated people use to
self-report COVID-19 symptoms had not been distributed and
collected properly. According to Steven Marcus, a PDS staff
attorney, a court-appointed inspector received the wrong form when
touring the jail.
The D.C. Jail initially responded to the allegations of improper
hygienic practices and protective equipment by reducing the number
of incarcerated people by 500 between March and June 2020.
When the case began, Judge Kollar-Kotelly ordered the D.C. Jail to
provide sufficient cleaning products and the ability to make
confidential legal calls while the pandemic continued to restrict
in-person visits. The jail was also required to provide appropriate
medical care to incarcerated people within 24 hours of reporting
health issues.
This is not the only time the D.C. Jail has received complaints
regarding its practices. An inspection done in October 2021
revealed that the jail was not compliant with the federal standards
for prison detention. As a result of these findings, a plan was
developed to transfer about 400 of the 1500 incarcerated people to
the U.S. Penitentiary in Lewisburg, PA. The new settlement,
however, does not fully address the new allegations brought up by
the October inspection.
On Feb. 14, nearly two years after the lawsuit was filed, the two
parties reached a settlement. The following day, the plan was
submitted to receive a federal judge's preliminary approval.
"This settlement is an important victory for protecting the health
and safety of residents at the D.C. Jail, especially as the
pandemic continues to evolve," attorney Zoé Friedland of the PDS
special litigation division said.
The agreement includes continued access to hygiene and cleaning
supplies and timely medical care, which will be monitored by an
independent epidemiologist paid by the D.C. government for a
six-month term.
The settlement also mandates five unannounced inspections of the
D.C. Jail. The requirement for the other inspections will be
eliminated if the jail is in compliance for two consecutive
unannounced visits.
Dr. Carlos Franco-Paredes, an infectious disease specialist at the
University of Colorado's School of Medicine, will be conducting the
inspections. His inspections will make note of seven aspects of the
jail's compliance, including masking of staff, access to showers
and recreation, and quarantine unit conditions.
The D.C. government will also continue to release information
regarding jail vaccination and infection rates and DOC
COVID-19-related policies and procedures. The D.C. Jail plans to
continue contact tracing for incarcerated people and staff who test
positive, requiring staff to wear face masks, and promoting social
distancing.
Even though the settlement will not resolve all the issues that the
D.C. Jail population currently faces, there is still hope that it
will lead to better conditions for those incarcerated. "In our
experience, unannounced inspections are the most effective way to
get the D.C. Jail to improve its behavior," Friedland said. [GN]
WENTZVILLE R-IV: School Board Reverses Decision on Banned Books
---------------------------------------------------------------
Jane Henderson at hastingstribune.com reports that a banned book
again will be available to high school students here after the
Wentzville School Board reversed its decision in the face of
criticism and a class action lawsuit.
The board voted 5-2 to rescind its earlier decision to ban Toni
Morrison's "The Bluest Eye." The board then voted 5-1, with one
member abstaining, to accept a review committee's recommendation to
retain the book, which had been challenged by a parent.
"'The Bluest Eye' doesn't offer anything to our children," argued
board member Sandy Garber. She had been a leading critic of the
Morrison book, despite a review committee's recommendation to
retain it.
The board vice president, Daniel Brice, said the district should
"tighten its policies" regarding some books, but he pointed out
that parents already had the right to request certain titles not be
available to their children. Brice said the meeting Friday was only
to reconsider the decision on the ban. No specific details were
given for the reconsideration.
The district made national news last month when the board voted 4-3
to remove "The Bluest Eye" from its high school libraries. Its
action was part of a recent wave of book challenges and bans across
the United States.
Three state lawmakers encouraged the School Board to stand fast by
its decision to ban the book, including going to court if
necessary.
"We strongly urge you to stand strong in your advocacy and care for
our children, and to defend your decision by any means necessary,
including legal means," says the letter dated Feb. 25. It is signed
by state legislators Sen. Bob Onder and Reps. Nick Schroer and
Richard West.
Last month, the local backlash against the Wentzville ban was
swift, with critics saying book bans violate First Amendment
rights. Most professional library associations say that parents of
minors may control their own children's reading material but that
they should not make specific books unavailable to other families.
The Missouri Library Association emailed a letter critical of the
ban to the president of the Wentzville School Board. It said, in
part: "We encourage you to reexamine the depth of your commitment
to education in the truest sense, and to find your courage in the
face of baseless political grandstanding at the expense of
educators and students in your district."
Two students, represented by lawyers for the American Civil
Liberties Union of Missouri, filed a class action lawsuit Feb. 15
against the district. The students are identified as C.K.-W. and
D.L. in the lawsuit.
The lawsuit says removing books threatens the students' abilities
"to learn and engage with a diversity of ideas and information,
including seeing their own experiences reflected in the books and
developing greater understanding of the experiences of others."
On Friday, the ACLU said the suit was still active, and reacted to
the ban reversal in a news release:
"This is welcome news, but the fact remains that six books are
still banned. And Wentzville's policies still make it easy for any
community member to force any book from the shelves even when they
shamelessly target books by and about communities of color, LGBTQ
people and other marginalized groups," stated Anthony Rothert,
director of integrated advocacy of ACLU of Missouri. "Access to
'The Bluest Eye' was taken from students for three months just
because a community member did not think they should have access to
Toni Morrison's story."
The Wentzville School District has received challenges against at
least four other titles: "All Boys Aren't Blue" by George M.
Johnson, "Fun Home" by Alison Bechdel, "Heavy" by Kiese Laymon and
"Lawn Boy" by Jonathan Evison.
The titles have been removed from school libraries. Challenges
against two other books, "Invisible Girl" and "Modern Romance,"
have been withdrawn, said district spokeswoman Brynne Cramer. Those
two also were mentioned in the ACLU lawsuit.
After the lawsuit was filed, the School Board unanimously approved
the recommendation of the district's book challenge committee to
retain "Gabi, a Girl in Pieces" by Isabel Quintero. The book, a
coming-of-age story of a Mexican-American teenager, had been
challenged for foul language and depiction of rape.
Recent book challenges primarily target books written by Black
and/or LGBTQ authors. The challenges often object to content about
sex or sexual abuse, or claim the book is obscene.
Since the Wentzville ban, local booksellers have seen increased
orders for "The Bluest Eye," a 51-year-old title by one of just
three U.S. women to win the Nobel Prize in literature.
The Left Bank Books Foundation, the nonprofit connected to Left
Bank Books bookstore in the Central West End, began its Literacy &
Justice Project in response to the Wentzville ban. Within a month
it had raised more than $10,000 in donations to provide free banned
books to anyone who sought one through the project's website. [GN]
YISP BV: Stibbe Attroneys Discuss Class Suit Over Illegal Content
-----------------------------------------------------------------
Branda Katan, Esq., and Barthold den Hartog, Esq., of Stibbe, in an
article for Lexology, report that recent case law on the standing
of 'idealistic' claim foundations shows courts' lenient approach.
Under the class action regime that entered into force in January
2020, claim foundations face stricter admissibility requirements as
a counterbalance to their newly gained power to institute an
opt-out damages claim.
The legislator however also implemented an exemption to the
requirements for 'idealistic' claim foundations, which do not claim
damages. The courts appear willing to push the scope of the
exemption and may pay particular attention to the track record of
the 'idealistic' foundation. Moreover, a claim's major financial
consequences for the defendant do not appear to bar courts from
applying the exemption. As more and more case law based on the new
class action regime appears, these developments are worth noting,
also in light of the recent climate-oriented actions against
corporates. In this blog we discuss the recent rulings on standing
in more detail.
The strict admissibility requirements under the new class action
regime mainly relate to the transparency and governance of a claim
foundation (e.g., a foundation should have a website that shows the
articles of association and the members of the board). A foundation
may invoke an exemption to those requirements on each of these
three grounds:
-- the foundation does not claim damages, and is bringing an
'idealistic' claim with minor financial interest,
-- the nature of the claim justifies an exemption; or
-- the nature of the persons whose interests are being defended
justifies an exemption.
Recently, foundation BREIN brought an action against two server
hosts, Yisp and Worldstream, who were hosting illegal content on
their servers. BREIN represents the interests of major makers and
publishers of content, and is supported by organisations including
the Motion Picture Association and Netflix. It is a repeat player
in lawsuits to stop IP infringements. BREIN demanded the court
order Yisp and Worldstream to remove the content from their
servers.
The district court exempted BREIN from the strict requirements and
justified this by pointing out that the action aimed to stop IP
infringements, represented a minor financial interest, and served
the general interest of preventing the Netherlands from becoming a
haven for digital pirates. It also considered that BREIN has been
acting against IP infringements for years, apparently to the
satisfaction of the IP rightholders supporting it.
We published a case note on this judgment in JBPr 2022/1 (only
accessible with a paid subscription). We note that BREIN's action
does not represent a minor financial interest; the servers hosted
over tens of thousands of movies, streamed through 283 websites
with over 450.7 million visits from 108.8 million unique visitors.
The legislative history specifies that the 'idealistic' action
should concern a minor financial interest for both the claimant and
the defendant and refers to a claim in which the average damage per
participant in the class action does not exceed EUR 1,000. In our
opinion, BREIN's action does not meet the requirement of a minor
financial interest.
Furthermore, we feel that the action's 'idealistic' character
(preventing the Netherlands from becoming a haven for digital
pirates) is slightly far-fetched. Examples of idealistic claims in
the legislative history include residents pursuing a prohibition of
illegal discharges by a neighbouring factory, and a patient
association fighting for the correct assessment of the effect of a
medicine. BREIN's claim is of a different type. In its writ of
summons, BREIN never claimed to pursue this idealistic purpose --
it seems this was entirely the court's finding.
Moreover, we have some doubts about 'the nature of the claim'. The
legislative history mentions that a foundation bringing an action
to amend general terms and conditions falls under the exemption.
While the legislative history does mention that it may be
"conceivable" that an organization enforcing IP rights would fall
under the exemption, it does not explain why.
We believe that the nature of the persons whose interests BREIN is
defending should have been decisive here. The (legal) persons on
whose behalf BREIN acts mostly consists of multinationals that are
perfectly capable of judging whether BREIN is properly representing
their interests. They will not need the strict admissibility
requirements aimed at protecting the interests of class members in,
for example, consumer class actions. In our view, the court's
reasoning would have been more convincing if it had left it at
that.
In a different case, this time against the Dutch state, the
foundation Defence For Children demanded that families with
underage children not be cut off from tap water in the event their
parents do not pay the water bill. Here, the court ruled that the
foundation falls under the exemption due to the action's idealistic
character and the fact that the action is in the interest of
children of whom no (direct) financial interest is at stake.
According to the court, the (huge) financial consequences for the
defendant if the claim is awarded should not be taken into account
as long as no damages are claimed.
These two judgments show leniency of the district courts towards
the standing of 'idealistic' foundations. We do not expect a
stricter approach in the future, but - as always - much hinges on
the facts and circumstances of the case.
For more information on class actions, please consult Stibbe's
dedicated website on collective actions or contact Branda Katan or
Jeroen Kortmann. [GN]
[*] H.R. 4445 Impacts Employment-Related Agreements
---------------------------------------------------
Emily G. Massey, Esq., of Ward and Smith, P.A., in an article for
The National Law Review, reports that we often encounter template
employment agreements that have not been revised for years or even
decades in practicing employment law. This can have a detrimental
impact on the enforceability of employment agreements, particularly
as it relates to non-compete, non-solicitation, and non-disclosure
provisions because state laws (either judge-made law or statutes)
are constantly changing. In recent years, certain state laws have
evolved to prohibit mandatory arbitration agreements relating to
employment disputes.
Now, all employers, regardless of location, need to reexamine their
employment agreements to determine the potential impact of a
pending federal law. Earlier in February, Congress passed H.R.
4445, "Ending Forced Arbitration of Sexual Assault and Sexual
Harassment Act of 2021 (the "Act"), which, once signed by the
President, will immediately bar mandatory arbitration of disputes
involving sexual assault or sexual harassment arising under state
or federal law. While the Act applies to any and all agreements,
this law most significantly impacts employment-related agreements.
Specifically, the Act prohibits:
Any agreement to arbitrate a sexual assault or sexual harassment
dispute when such dispute has not yet arisen; and
Any agreement that would prohibit or waive one of the parties'
rights to participate in a joint, class, or collective action
concerning a sexual assault or sexual harassment dispute when such
dispute has not yet arisen.
Key takeaways from the Act include:
The Act defers to state, federal, and tribal law.
Although the Act is a federal law applying to all individuals (and
employers), the prohibitions are not limited to Title VII and
extend to disputes arising under state and tribal laws. The Act
defines sexual assault as a nonconsensual sexual act or sexual
contact, as defined in 18 U.S.C. Section 2246 (the federal law
criminalizing sexual abuse) or similar applicable tribal or state
law. The Act even more generally defines sexual harassment as
conduct that is alleged to constitute sexual harassment under
applicable federal, tribal, or state law.
Agreement to waive a jury trial is not addressed.
The Act explicitly prohibits a pre-dispute waiver of participating
in a joint, class, or collective action regarding a sexual assault
or harassment dispute, suggesting that a pre-dispute agreement
(i.e., an employment agreement) could include a provision waiving
the parties' rights to seek a jury trial. Note, however, that North
Carolina employers (and anyone in the state, for that matter)
cannot require a jury trial waiver as part of any contract. (See
N.C. Gen. Stat. Section 22B-10)
Employers could keep optional arbitration clauses.
The Act states that the person alleging sexual abuse or sexual
harassment may elect to deem mandatory arbitration or waiver of
joint action provisions unenforceable. Thus, employers could modify
their employment agreements to remove language mandating
arbitration or waivers while allowing the employee to opt for
arbitration.
Previously executed agreements are not exempt from the Act's
prohibitions.
The Act applies to any dispute or claim that arises or accrues on
or after the date of the Act's enactment. Accordingly, any
mandatory arbitration clause or joint action waiver can be voided
at the employee's option upon instituting a sexual assault or
sexual harassment claim, regardless of when the underlying
employment agreement was executed.
Practical considerations for employers:
Once President Biden signs the Act (as expected) and it becomes
law, employers should amend any employment agreement with a
mandatory arbitration clause or joint action waiver provision.
Although the text of the Act suggests that the entire agreement
will not be invalid or unenforceable due to the inclusion of a
prohibited provision, employers should be proactive in modifying
the enforcement provisions. Specifically, since arbitration will be
voidable by the person seeking a sexual harassment or sexual
assault claim, the agreement should include court venue provisions
relating to such claims.
Employers could choose to simply add a provision clarifying that
the mandatory arbitration and/or joint action waiver clause does
not apply to sexual harassment or sexual assault claims. However,
employers should consider whether keeping such provisions will be
more of a hurdle in the long run. Consider the following:
Arbitration is a private, binding process that does not involve any
court or public judicial system, which can be very beneficial to
employers in having more control over the litigation process.
There also are potential downsides to arbitration for employers,
such as substantial administrative and arbitrator's fees that are
paid in full by the employer under some arbitration rules; risk
that the employee will litigate the enforceability of the mandatory
arbitration provision; reluctance of arbitrators to grant
dispositive motions thus allowing the matter to move forward to
hearing; the possibility of having arbitrators with less experience
with or less tendency to accept procedural defenses such as
statutes of limitations or to reject evidence-based on relevancy or
hearsay; and the very limited ability to succeed on appeal of an
arbitration decision.
Private arbitration does not prohibit administrative agencies (such
as the Department of Labor or the Equal Employment Opportunity
Commission) from investigating and suing employers.
To carry out modifications to employment agreements, whether
through a new agreement or an amendment, employers must ensure they
are providing adequate consideration to form a valid contract. This
varies based on state law, but North Carolina employers should note
that executing any new agreement with restrictive covenants (i.e.,
non-competes), or amending an agreement's restrictive covenants,
requires consideration beyond continued employment.
We will provide a brief update once the Act becomes law. Until
then, employers should consult with legal counsel on what changes
should be made, if any, to your employment agreements. After all,
the law changes nearly every day! [GN]
[*] U.S. Class Action Suits Over Consumer Beauty Products Discussed
-------------------------------------------------------------------
Abraham Jewett, writing for Top Class Actions, reports that
consumers are sensitive about what they put on their skin, and,
with so many cosmetics to choose from, the ingredients a product
contains plays a major role in purchasing decisions.
The ingredients cosmetics contain have also led to a number of
class action lawsuits, and, according to them and the consumers
behind them, make these the worst makeup brands in America:
Consumers Claim Huda, Grande Cosmetics Sell Eye-Damaging Cosmetics
Huda Beauty was in the spotlight last year after it agreed to a
$2.8 million settlement with its customers to resolve claims its
eye shadow contained ingredients that were unsafe to be near eyes.
The product in question was Huda's Neon Obsessions Palette, which
consumers alleged was marketed as an eye shadow despite it not
being intended for the eye area.
Consumers claimed in a class action lawsuit that the product caused
them to suffer injuries such as eye irritation, rashes,
discoloration, skin inflammation and pain.
Further, consumers argued Huda only warned them the product was not
meant to be used near the eyes with a six-word disclaimer on the
back of its packaging.
Grande Cosmetics, meanwhile, was accused earlier this year of
selling hair growth serums that can cause eye damage.
Consumers claim the serum, which is marketed for growing brows,
eyelashes and hair, contains isopropyl cloprostenate (ICP), which
they argue should only be used under physician supervision due to
its risk of serious side effects.
Specifically, consumers argue ICP can cause eye damage, including
iris discoloration, loss of eyelashes and growths in the eye.
Consumers claim Grande Cosmetics is aware of the issue but has
refused to provide any remedy to the situation.
The class action lawsuit was the second filed last year over the
issue with a consumer in California arguing the products should be
classified as drugs rather than cosmetics due to their containing
ICP.
bareMinerals Makeup Contains PFAs, Falsely Advertised As Natural
Popular beauty brand Shiseido was also hit with a class action
lawsuit last year over its bareMinerals makeup line with consumers
alleging it contains harmful chemicals that are man-made.
Consumers argue that, despite being advertised as being free of any
chemicals, the makeup line actually contains per- and
polyfluoroalkyl substances (PFAs), which have been linked to a
variety of adverse health effects.
The PFAs the bareMinerals makeup line contain are known as "forever
chemicals," consumers argue, given the amount of time they stay in
an individual's system after they are exposed to them.
The issue of PFAs in cosmetic products such as Shiseido's came to
light after a June study conducted by Notre Dame researchers
revealed that more than half of the makeup in the U.S. may contain
the harmful chemicals.
PFAs have been linked to a number of adverse health effects,
including cancer, weakened immune systems, low birth weight and
liver and thyroid issues, among other things.
Neutrogena Sells Products Containing Benzophenone, Benzene
Also last year, a class action lawsuit targeted Neutrogena over its
Health Skin Firming Cream with Broad Spectrum (SPF 15), which
consumers claim contains benzophenone, a known human carcinogen.
Consumers argue Neutrogena fails to disclose to consumers that the
product contains benzophenone, which they say also acts as an
endocrine disruptor.
Further, consumers argue Neutrogena advertises that "safety is
paramount" when it comes to its products, which they claim means it
should have known its skin cream contains benzophenone.
Neutrogena has also been under fire over allegations it sells
sunscreen products containing benzene, a known cancer-causing
chemical.
Clinique Falsely Advertises 'Oil Free' and 'Live Probiotic'
Products
Beauty brand Clinique, meanwhile, dealt with several class action
lawsuits last year, including claims it sold skincare products
falsely marketed as "oil free" and ones falsely marketed as
containing live probiotics.
In November, Clinique was unsuccessful in getting out of the claims
that its oil free skincare products actually contain oil with a
judge only dismissing claims related to products the lead plaintiff
didn't purchase.
Despite being marketed as oil free, consumers claim that at least
eight of its "oil free" products actually contain oils such as
dimethicone, tocopheryl acetate and isostearyl neopentanoate, among
others.
Consumers claim the products caused a number of unexpected side
effects, including breakouts, oily skin and eye irritation when
mixed with sweat.
A similar class action lawsuit was filed against Maybelline in
December 2020 by consumers who claimed the company falsely
advertised some of its makeup products as oil free.
Last March, meanwhile, a consumer claimed Clinique falsely
advertised that some of its skincare products contain live
probiotics.
The inclusion of live probiotics has risen in popularity in
skincare recently, according to the claims, due to their ability to
combat conditions such as acne, rosacea and eczema.
Clinique's products, however, could not contain live probiotics as
claimed due to a preservative ingredient that would prevent them
from growing, according to the class action lawsuit.
Ulta Repackages Makeup And Sells It To Customers As New
Going back to 2018, a class action lawsuit alleged Ulta Beauty
repackaged and sold makeup products to consumers who believed they
were buying them brand new.
Consumers in the complaint claimed Ulta employees, at the direction
of management, repackaged returned items and put them back on the
shelves.
The complaint came after an Ulta employee went on Twitter to reveal
the practice, including that the products were not sanitized before
being placed back for sale, according to the class action lawsuit.
Beauty Brands Begin To Move Away From Talc Over Cancer Risks
A number of cosmetic and beauty brands also began removing talc
from their makeup products last year after a Food and Drug
Administration study revealed the presence of asbestos in around 18
percent of products tested.
Brands such as Chanel, Revlon and L'Oreal are among the brands
moving away from talc, which has been a popular makeup ingredient
over the years due to its ability to soften, absorb moisture and
prevent caking.
The dangers of talc were not entirely unknown, however, with a
consumer filing a class action lawsuit against Johnson & Johnson in
2018 over claims the company failed to warn customers about the
cancer risk associated with talc in its baby powder product. [GN]
Asbestos Litigation
ASBESTOS UPDATE: Alcoa Corp.'s Subsidiaries Faces PI Lawsuits
-------------------------------------------------------------
Alcoa Corporation's subsidiaries as premises owners are defendants
in active lawsuits filed in various U.S. jurisdictions on behalf of
persons seeking damages for alleged personal injury as a result of
occupational exposure to asbestos at various facilities, according
to the Company's Form 10-K filing with the U.S. Securities and
Exchange Commission.
The Company states, "Our subsidiaries and acquired companies all
have had numerous insurance policies over the years that provide
coverage for asbestos based claims. Many of these policies provide
layers of coverage for varying periods of time and for varying
locations. We have significant insurance coverage and believe that
our reserves are adequate for known asbestos exposure related
liabilities. The costs of defense and settlement have not been and
are not expected to be material to the results of operations, cash
flows, and financial position of Alcoa Corporation."
A full-text copy of the Form 10-K is available at
https://bit.ly/3tJv1Mp
ASBESTOS UPDATE: Alleghany Corp. Has $39.4MM Gross Reserves
-----------------------------------------------------------
Alleghany Corporation, as of December 31, 2021, has reported an
ending gross reserve balances for unpaid loss and LAE related to
asbestos–related illness of $39.4 million, according to the
Company's Form 10-K filing with the U.S. Securities and Exchange
Commission.
The Company states, "Our reinsurance and insurance subsidiaries'
reserves for loss and LAE include amounts for risks related to
asbestos-related illness and environmental impairment. The reserves
carried for such claims, including the reserves for loss and LAE
incurred but not reported, or "IBNR," claims, are based upon known
facts and current law at the respective balance sheet dates.
However, significant uncertainty exists in determining the amount
of ultimate liability for asbestos-related illness and
environmental impairment losses. This uncertainty is due to, among
other reasons, inconsistent and changing court resolutions and
judicial interpretations with respect to underlying policy intent
and coverage and uncertainties as to the allocation of
responsibility for resultant damages. Further, possible future
changes in statutes, laws, regulations, theories of liability and
other factors could have a material effect on these liabilities
and, accordingly, future earnings. Although we are unable at this
time to determine whether additional reserves, which could have a
material adverse effect upon our results of operations, may be
necessary in the future, we believe that our asbestos-related
illness and environmental impairment reserves were adequate as of
December 31, 2021.
"At December 31, 2021 and 2020, the reserves for asbestos-related
illness liabilities were approximately ten and eleven times,
respectively, the average paid claims for the respective prior
three year period. At both December 31, 2021 and 2020, the reserves
for environmental impairment liabilities were approximately nine
and seven times, respectively the average paid claims for the
respective prior three year period."
A full-text copy of the Form 10-K is available at
https://bit.ly/3vRwpiY
ASBESTOS UPDATE: AMETEK Defends Multiple Asbestos-Related Suits
---------------------------------------------------------------
AMETEK, Inc., (including its subsidiaries), has been named as a
defendant in a number of asbestos-related lawsuits, according to
the Company's Form 10-K filing with the U.S. Securities and
Exchange Commission.
The Company states, "Certain of these lawsuits relate to a business
which was acquired by the Company and do not involve products which
were manufactured or sold by the Company. In connection with these
lawsuits, the seller of such business has agreed to indemnify the
Company against these claims (the "Indemnified Claims"). The
Indemnified Claims have been tendered to, and are being defended
by, such seller. The seller has met its obligations, in all
respects, and the Company does not have any reason to believe such
party would fail to fulfill its obligations in the future. To date,
no judgments have been rendered against the Company as a result of
any asbestos-related lawsuit. The Company believes that it has good
and valid defenses to each of these claims and intends to defend
them vigorously."
A full-text copy of the Form 10-K is available at
https://bit.ly/3tJe6tH
ASBESTOS UPDATE: Aqua-Chem Faces 15,000 Product Liability Claims
----------------------------------------------------------------
The Coca-Cola Company's former subsidiary, Aqua-Chem, was named as
a defendant in asbestos lawsuits in or around 1985 and currently
has approximately 15,000 active claims pending, according to the
Company's Form 10-K filing with the U.S. Securities and Exchange
Commission.
The Coca-Cola Company owned Aqua-Chem from 1970 to 1981. During
that time, the Company purchased over $400 million of insurance
coverage, which also insures Aqua-Chem for some of its prior and
future costs for certain product liability and other claims. The
Company sold Aqua-Chem to Lyonnaise American Holding, Inc., in 1981
under the terms of a stock sale agreement. The 1981 agreement, and
a subsequent 1983 settlement agreement, outlined the parties'
rights and obligations concerning past and future claims and
lawsuits involving Aqua-Chem. Cleaver-Brooks, a division of
Aqua-Chem, manufactured boilers, some of which contained asbestos
gaskets.
A full-text copy of the Form 10-K is available at
https://bit.ly/3CnQoqw
ASBESTOS UPDATE: CenterPoint Energy Still Defends PI Lawsuits
-------------------------------------------------------------
CenterPoint Energy, Inc., are from time to time named, along with
numerous others, as defendants in lawsuits filed by a number of
individuals who claim injury due to exposure to asbestos and
anticipates that additional claims may be asserted in the future,
according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission.
The Company states, "Some facilities owned by the Registrants or
their predecessors contain or have contained asbestos insulation
and other asbestos-containing materials. Although their ultimate
outcome cannot be predicted at this time, the Registrants do not
expect these matters, either individually or in the aggregate, to
have a material adverse effect on their financial condition,
results of operations or cash flows."
A full-text copy of the Form 10-K is available at
https://bit.ly/3hPPauS
ASBESTOS UPDATE: Cincinnati Financial Reports $88MM Loss Reserves
-----------------------------------------------------------------
Cincinnati Financial Corporation carried $88 million of net loss
and loss expense reserves for asbestos and environmental claims at
year-end 2021, compared with $85 million year-end 2020, according
to the Company's Form 10-K filing with the U.S. Securities and
Exchange Commission.
The Company states, "The asbestos and environmental claims amounts
for each respective year constituted 1.3% of total net loss and
loss expense reserves at these year-end dates.
"We believe our exposure to asbestos and environmental claims is
limited, largely because our reinsurance retention was $500,000 or
below prior to 1987. We also were predominantly a personal lines
company in the 1960s and 1970s, when asbestos and pollution
exclusions were not widely used by commercial lines insurers.
During the 1980s and early 1990s, commercial lines grew as a
percentage of our overall business and our exposure to asbestos and
environmental claims grew accordingly. Over that period, we
endorsed to or included in most policies an asbestos and
environmental exclusion.
"Additionally, since 2002, we have revised policy terms where
permitted by state regulation to limit our exposure to mold claims
prospectively and further reduce our exposure to other
environmental claims generally. Finally, we have not engaged in any
mergers or acquisitions through which such a liability could have
been assumed. We continue to monitor our claims for evidence of
material exposure to other mass tort classes, but we have found no
such credible evidence to date."
A full-text copy of the Form 10-K is available at
https://bit.ly/35JreqC
ASBESTOS UPDATE: Curtiss-Wright Still Defends PI Lawsuits
---------------------------------------------------------
Curtiss-Wright Corporation has been named in pending lawsuits that
allege injury from exposure to asbestos, according to the Company's
Form 10-K filing with the U.S. Securities and Exchange Commission.
The Company states, "To date, we have not been found liable or paid
any material sum of money in settlement in any asbestos-related
case. We believe that the minimal use of asbestos in our past
operations and the relatively non-friable condition of asbestos in
our products make it unlikely that we will face material liability
in any asbestos litigation, whether individually or in the
aggregate. We maintain insurance coverage for these potential
liabilities and we believe adequate coverage exists to cover any
unanticipated asbestos liability."
A full-text copy of the Form 10-K is available at
https://bit.ly/3vSsO4i
ASBESTOS UPDATE: Flowserve Corp. Defends Multiple PI Lawsuits
-------------------------------------------------------------
Flowserve Corporation is a defendant in a substantial number of
lawsuits that seek to recover damages for personal injury allegedly
resulting from exposure to asbestos-containing products formerly
manufactured and/or distributed by us, according to the Company's
Form 10-K filing with the U.S. Securities and Exchange Commission.
The Company states, "Such products were used as internal components
of process equipment, and we do not believe that there was any
significant emission of asbestos-containing fibers during the use
of this equipment. Although we are defending these allegations
vigorously and believe that a high percentage of these lawsuits are
covered by insurance or indemnities from other companies, there can
be no assurance that we will prevail or that coverage or payments
made by insurance or such other companies would be adequate.
Unfavorable rulings, judgments or settlement terms could have a
material adverse impact on our business, financial condition,
results of operations and cash flows.
"The study from the Company's actuary, based on data as of August
31, 2021, provided for a range of possible future liability from
approximately $75.9 million to $124.6 million. The Company does not
believe any amount within the range of potential outcomes
represents a better estimate than another given the many factors
and assumptions inherent in the projections and therefore the
Company has recorded the liability at the actuarial central
estimate of approximately $94.4 million as of December 31, 2021. In
addition, the Company has recorded estimated insurance receivables
of approximately $57.4 million as of December 31, 2021. The amounts
recorded for the asbestos-related liability and the related
insurance receivables are based on facts known at the time and a
number of assumptions. However, projecting future events, such as
the number of new claims to be filed each year, the length of time
it takes to defend, resolve, or otherwise dispose of such claims,
coverage issues among insurers and the continuing solvency of
various insurance companies, as well as the numerous uncertainties
surrounding asbestos litigation in the United States, could cause
the actual liability and insurance recoveries for us to be higher
or lower than those projected or recorded. Additionally, we have
claims pending against certain insurers that, if resolved more
favorably than reflected in the recorded receivables, would result
in discrete gains in the applicable year. Changes recorded in the
estimated liability and estimated insurance recovery based on
projections of asbestos litigation and corresponding insurance
coverage, result in the recognition of additional expense or
income."
A full-text copy of the Form 10-K is available at
https://bit.ly/3Ks38zb
ASBESTOS UPDATE: IDEX Corp. Faces Various PI Lawsuits
-----------------------------------------------------
IDEX Corporation and six of its subsidiaries are presently named as
defendants in a number of lawsuits claiming various
asbestos-related personal injuries, allegedly as a result of
exposure to products manufactured with components that contained
asbestos, according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission.
The Company states, "These components were acquired from third
party suppliers and were not manufactured by the Company or any of
the defendant subsidiaries. To date, the majority of the Company's
settlements and legal costs, except for costs of coordination,
administration, insurance investigation and a portion of defense
costs, have been covered in full by insurance, subject to
applicable deductibles. However, the Company cannot predict whether
and to what extent insurance will be available to continue to cover
these settlements and legal costs, or how insurers may respond to
claims that are tendered to them. Asbestos-related claims have been
filed in jurisdictions throughout the United States and the United
Kingdom. Most of the claims resolved to date have been dismissed
without payment. The balance of the claims have been settled for
various immaterial amounts. Only one case has been tried, resulting
in a verdict for the Company's business unit. No provision has been
made in the financial statements of the Company, other than for
insurance deductibles in the ordinary course, and the Company does
not currently believe the asbestos-related claims will have a
material adverse effect on the Company's business, financial
position, results of operations or cash flows."
A full-text copy of the Form 10-K is available at
https://bit.ly/3IXen2z
ASBESTOS UPDATE: Olin Corp. Faces Exposure Claims
-------------------------------------------------
Olin Corporation and its subsidiaries, are defendants in various
other legal actions (including proceedings based on alleged
exposures to asbestos) incidental to its past and current business
activities, according to the Company's Form 10-K filing with the
U.S. Securities and Exchange Commission.
The Company states, "At December 31, 2021 and 2020, our
consolidated balance sheets included liabilities for these other
legal actions of $14.2 million and $13.5 million, respectively.
These liabilities do not include costs associated with legal
representation. Based on our analysis, and considering the
inherent uncertainties associated with litigation, we do not
believe that it is reasonably possible that these other legal
actions will materially adversely affect our financial position,
cash flows or results of operations."
A full-text copy of the Form 10-K is available at
https://bit.ly/3KvUQ9O
ASBESTOS UPDATE: Pentair plc's Subsidiaries Defends 670 Claims
--------------------------------------------------------------
Pentair plc's subsidiaries, as of December 31, 2021, have been
named as a defendant to approximately 670 claims pending,
substantially all of which relate to its discontinued operations,
according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission.
The Company states, "Our subsidiaries, along with numerous other
companies, are named as defendants in a substantial number of
lawsuits based on alleged exposure to asbestos-containing
materials, substantially all of which relate to our discontinued
operations. These cases typically involve product liability claims
based primarily on allegations of manufacture, sale or distribution
of industrial products that either contained asbestos or were
attached to or used with asbestos-containing components
manufactured by third parties. In addition, some cases brought
against us involve the presence of asbestos at facilities that we
own or used to own. Each case typically names a large number of
product manufacturers, service providers and premises owners.
Historically, our subsidiaries have been identified as defendants
in asbestos-related claims. Our strategy has been, and continues to
be, to mount a vigorous defense aimed at having unsubstantiated
suits dismissed, and settling claims before trial only where
appropriate. We cannot predict with certainty the extent to which
we will be successful in litigating or otherwise resolving lawsuits
in the future, and we continue to evaluate different strategies
related to asbestos claims filed against us including entity
restructuring and judicial relief. Unfavorable rulings, judgments
or settlement terms could have a material adverse impact on our
business and financial condition, results of operations and cash
flows. In addition, while most of the asbestos claims against us
are covered by liability insurance policies from many years ago,
not all claims are insured. As our insurers resolve claims relating
to past policy periods, the aggregate coverage provided by those
policies erodes. If we exhaust our coverage under those policies,
we will be exposed to potential uninsured losses."
A full-text copy of the Form 10-K is available at
https://bit.ly/3hPvPKs
ASBESTOS UPDATE: Pfizer Inc. Faces Personal Injury Claims
---------------------------------------------------------
Pfizer Inc., and its subsidiaries are defendants in numerous cases
related to its pharmaceutical and other products wherein Plaintiffs
in these cases seek damages and other relief on various grounds for
alleged personal injury and economic loss, according to the
Company's Form 10-K filing with the U.S. Securities and Exchange
Commission.
Between 1967 and 1982, Warner-Lambert owned American Optical
Corporation (American Optical), which manufactured and sold
respiratory protective devices and asbestos safety clothing. In
connection with the sale of American Optical in 1982,
Warner-Lambert agreed to indemnify the purchaser for certain
liabilities, including certain asbestos-related and other claims.
Warner-Lambert was acquired by Pfizer in 2000 and is a wholly owned
subsidiary of Pfizer. Warner-Lambert is actively engaged in the
defense of, and will continue to explore various means of
resolving, these claims.
Numerous lawsuits against American Optical, Pfizer and certain of
its previously owned subsidiaries are pending in various federal
and state courts seeking damages for alleged personal injury from
exposure to products allegedly containing asbestos and other
allegedly hazardous materials sold by Pfizer and certain of its
previously owned subsidiaries.
There also are a small number of lawsuits pending in various
federal and state courts seeking damages for alleged exposure to
asbestos in facilities owned or formerly owned by Pfizer or its
subsidiaries.
A full-text copy of the Form 10-K is available at
https://bit.ly/37gJMPr
ASBESTOS UPDATE: Rogers Corp Has $68.33MM Liabilities at Dec. 31
----------------------------------------------------------------
Rogers Corporation, as of December 31, 2021, has reported a total
of $3.84 million and $64.49 million, respectively, for the current
and non-current portion, in asbestos-related liabilities, according
to the Company's Form 8-K filing with the U.S. Securities and
Exchange Commission.
A full-text copy of the Form 8-K is available at
https://bit.ly/3I6x96p
ASBESTOS UPDATE: Sealed Air Still Faces Product Liability Claims
----------------------------------------------------------------
Sealed Air Corporation is a defendant in a number of
asbestos-related actions in Canada arising from Grace's activities
in Canada prior to the 1998 transaction, according to the Company's
Form 10-K filing with the U.S. Securities and Exchange Commission.
The Company states, "Although the Settlement agreement (as defined
below) has been implemented and we have been released from the
various asbestos-related, fraudulent transfer, successor liability,
and indemnification claims made against us arising from a 1998
transaction with Grace (as defined below), if the courts were to
refuse to enforce the injunctions or releases contained in the Plan
(as defined below) and the Settlement agreement with respect to any
claims and if Grace were unwilling or unable to defend and
indemnify us for such claims, then we could be required to pay
substantial damages, which could have a material adverse effect on
our consolidated financial condition and results of operations.
"On March 31, 1998, we completed a multi-step transaction (the
"Cryovac transaction") involving W.R. Grace & Co. ("Grace") which
brought the Cryovac packaging business and the former Sealed Air's
business under the common ownership of the Company. As part of that
transaction, Grace and its subsidiaries retained all liabilities
arising out of their operations before the Cryovac transaction
(including asbestos-related liabilities), other than liabilities
relating to Cryovac's operations, and agreed to indemnify the
Company with respect to such retained liabilities. Beginning in
2000, we were served with a number of lawsuits alleging that the
Cryovac transaction was a fraudulent transfer or gave rise to
successor liability or both, and that as a result we were
responsible for alleged asbestos liabilities of Grace and its
subsidiaries. On April 2, 2001, Grace and a number of its
subsidiaries filed petitions for reorganization under Chapter 11 of
the U.S. Bankruptcy Code in the U.S. Bankruptcy Court for the
District of Delaware (the "Bankruptcy Court"). In connection with
Grace's Chapter 11 case, the Bankruptcy Court issued orders staying
all asbestos actions against the Company (the "Preliminary
Injunction") but granted the official committees appointed to
represent asbestos claimants in Grace’s Chapter 11 case (the
"Committees") permission to pursue fraudulent transfer, successor
liability, and other claims against the Company and its subsidiary
Cryovac, Inc. based upon the Cryovac transaction. In November 2002,
we reached an agreement in principle with the Committees to resolve
all current and future asbestos-related claims made against us and
our affiliates, as well as indemnification claims by Fresenius
Medical Care Holdings, Inc. and affiliated companies, in each case,
in connection with the Cryovac transaction (as memorialized by the
parties and approved by the Bankruptcy Court, the "Settlement
agreement"). A definitive Settlement agreement was entered into as
of November 10, 2003 consistent with the terms of the agreement in
principle. On June 27, 2005, the Bankruptcy Court approved the
Settlement agreement and the Settlement agreement was subsequently
incorporated into the plan of reorganization for Grace filed in
September 2008 (as filed and amended from time to time, the
"Plan"). Subsequently, the Bankruptcy Court (in January and
February 2011) and the United States District Court for the
District of Delaware (in January and June 2012) entered orders
confirming Grace's plan of reorganization in its entirety.
"On February 3, 2014 (the "Effective Date"), in accordance with the
Plan, Grace emerged from bankruptcy. In accordance with the Plan
and the Settlement agreement, on the Effective Date, Cryovac, Inc.
made aggregate cash payments in the amount of $929.7 million to the
WRG Asbestos PI Trust (the "PI Trust") and the WRG Asbestos PD
Trust (the "PD Trust") and transferred 18 million shares of Sealed
Air common stock to the PI Trust. Among other things, the Plan
incorporated and implemented the Settlement agreement and provided
for the establishment of two asbestos trusts under Section 524(g)
of the U.S. Bankruptcy Code to which present and future
asbestos-related personal injury and property damage claims are
channeled. The Plan also provided injunctions and releases with
respect to asbestos claims and certain other claims for our
benefit. In addition, under the Plan and the Settlement agreement,
Grace is required to indemnify us with respect to asbestos and
certain other liabilities. Notwithstanding the foregoing, and
although we believe the possibility to be remote, if any courts
were to refuse to enforce the injunctions or releases contained in
the Plan and the Settlement agreement with respect to any claims,
and if, in addition, Grace were unwilling or unable to defend and
indemnify us for such claims, then we could be required to pay
substantial damages, which could have a material adverse effect on
our consolidated financial condition, results of operations,
profitability or cash flows."
A full-text copy of the Form 10-K is available at
https://bit.ly/3tHs0fA
ASBESTOS UPDATE: Standard Motor Has $60.5MM Accrued Liabilities
---------------------------------------------------------------
Standard Motor Products, Inc., as of December 31, 2021, has
recorded an accrued asbestos liability of $60.5 million, according
to the Company's Form 10-K filing with the U.S. Securities and
Exchange Commission.
Standard Motor states, "The Company's asbestos liability represents
the low end of the actuarially determined range of the undiscounted
liability for settlement payments and awards of asbestos related
damages, excluding legal costs and any potential recovery from
insurance carriers.
"We identified the assessment of the asbestos liability recorded as
a critical audit matter. This required subjective auditor judgment,
due to the nature of the estimate and assumptions, including the
applicability of those assumptions to the current facts and
circumstances, as well as judgments about future events and
uncertainties. Specialized skills were needed to evaluate the
Company's key assumptions. The key assumptions included future
claim filings, closed with pay ratios, closed with pay lag
patterns, settlement values, large claims, and ratios of allocated
loss adjustment exposure (ALAE) to indemnity. Minor changes to
these key assumptions could have had a significant effect on the
Company’s assessment of the accrual for the asbestos liability."
A full-text copy of the Form 10-K is available at
https://bit.ly/3KLM0oz
ASBESTOS UPDATE: Tenneco Has 500 Cases in U.S. and 50 in Europe
---------------------------------------------------------------
Tenneco Inc.'s current docket of active and inactive cases is
approximately 500 cases in the U.S. and less than 50 in Europe,
according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission.
The Company states, "For many years, we have been and continue to
be subject to lawsuits initiated by claimants alleging health
problems as a result of exposure to asbestos.
"With respect to the claims filed in the U.S., the substantial
majority of the claims are related to alleged exposure to asbestos
in the Company's line of Walker(R) exhaust automotive products
although a significant number of those claims appear also to
involve occupational exposures sustained in industries other than
automotive. A small number of claims have been asserted against one
of the Company's subsidiaries by railroad workers alleging exposure
to asbestos products in railroad cars. The Company believes, based
on scientific and other evidence, it is unlikely that U.S.
claimants were exposed to asbestos by the Company's former products
and that, in any event, they would not be at increased risk of
asbestos-related disease based on their work with these products.
Further, many of these cases involve numerous defendants.
Additionally, in many cases the plaintiffs either do not specify
any, or specify the jurisdictional minimum, dollar amount for
damages.
"With respect to the claims filed in Europe, the substantial
majority relate to occupational exposure claims brought by current
and former employees of Federal-Mogul facilities in France and
amounts paid out were not material. A small number of occupational
exposure claims have also been asserted against Federal-Mogul
entities in Italy and Spain."
A full-text copy of the Form 10-K is available at
https://bit.ly/34slgcZ
ASBESTOS UPDATE: Transocean Faces 250 PI Lawsuits as of Dec. 31
---------------------------------------------------------------
Transocean Ltd.'s certain of its subsidiaries, as of December 31,
2021, was a defendant in approximately 250 lawsuits with a
corresponding number of plaintiffs, according to the Company's Form
10-K filing with the U.S. Securities and Exchange Commission.
The Company states, "Certain of our subsidiaries are named as
defendants in numerous lawsuits alleging personal grievances or
injury, including as a result of exposure to asbestos or toxic
fumes or resulting from other occupational diseases, such as
silicosis, and various other medical issues that can remain
undiscovered for a considerable amount of time.
"At December 31, 2021, 11 plaintiffs have claims pending in
Louisiana and 9 plaintiffs have claims pending in Illinois and
Missouri, in which we have or may have an interest. We intend to
defend these lawsuits vigorously, although we can provide no
assurance as to the outcome. We historically have maintained broad
liability insurance, although we are not certain whether insurance
will cover the liabilities, if any, arising out of these claims."
A full-text copy of the Form 10-K is available at
https://bit.ly/3pNT9wc
ASBESTOS UPDATE: Vontier Corp. Records $79.0MM Future Liabilities
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Vontier Corporation has recorded gross liabilities associated with
known and future expected asbestos claims of $79.0 million and
$68.0 million as of December 31, 2021 and 2020, respectively,
according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission.
The Company states, "We are, from time to time, subject to a
variety of litigation and other proceedings incidental to our
business, including lawsuits involving claims for damages arising
out of the use of our products, software and services; claims
relating to intellectual property matters, employment matters,
commercial disputes, product liability (including asbestos exposure
claims) and personal injury; as well as regulatory investigations
or enforcement. We may also become subject to lawsuits as a result
of past or future acquisitions, or as a result of liabilities
retained from, or representations, warranties or indemnities
provided in connection with divested businesses. Some of these
lawsuits may include claims for punitive and consequential as well
as compensatory damages."
A full-text copy of the Form 10-K is available at
https://bit.ly/3CuUywN
ASBESTOS UPDATE: W. R. Berkley Has $20MM Net Reserves at Dec. 31
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W. R. Berkley Corporation has reported net reserves for losses and
loss expenses relating to asbestos and environmental claims on
policies written before adoption of the absolute exclusion of $20
million at December 31, 2021 and $19 million at December 31, 2020,
according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission.
The Company states, "The estimation of these liabilities is subject
to significantly greater than normal variation and uncertainty
because it is difficult to make an actuarial estimate of these
liabilities due to the absence of a generally accepted actuarial
methodology for these exposures and the potential effect of
significant unresolved legal matters, including coverage issues, as
well as the cost of litigating the legal issues. Additionally, the
determination of ultimate damages and the final allocation of such
damages to financially responsible parties are highly uncertain."
A full-text copy of the Form 10-K is available at
https://bit.ly/3tFWWgp
ASBESTOS UPDATE: Watts Water Tech Faces 400 Exposure Suits
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Watts Water Technologies, Inc., is a defendant of approximately 400
lawsuits in different jurisdictions, alleging injury or death as a
result of exposure to asbestos, according to the Company's Form
10-K filing with the U.S. Securities and Exchange Commission.
The Company states, "The complaints in these cases typically name a
large number of defendants and do not identify any of our
particular products as a source of asbestos exposure. To date,
discovery has failed to yield evidence of substantial exposure to
any of our products and no judgments have been entered against us.
We have been and expect to continue to be subject to various
product liability claims or other lawsuits, including, among
others, that our products include inadequate or improper
instructions for use or installation, inadequate warnings
concerning the effects of the failure of our products, alleged
manufacturing or design defects, or allegations that our products
contain asbestos. If we do not have adequate insurance or
contractual indemnification, damages from these claims would have
to be paid from our assets and could have a material adverse effect
on our results of operations, liquidity and financial condition.
Like other manufacturers and distributors of products designed to
control and regulate fluids and gases, we face an inherent risk of
exposure to product liability claims and other lawsuits in the
event that the use of our products results in personal injury,
property damage or business interruption to our customers. We
cannot be certain that our products will be completely free from
defect. In addition, in certain cases, we rely on third-party
manufacturers for our products or components of our products. We
cannot be certain that our insurance coverage will continue to be
available to us at a reasonable cost, or, if available, will be
adequate to cover any such liabilities."
A full-text copy of the Form 10-K is available at
https://bit.ly/3Mxss8U
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S U B S C R I P T I O N I N F O R M A T I O N
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