/raid1/www/Hosts/bankrupt/CAR_Public/220322.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, March 22, 2022, Vol. 24, No. 52
Headlines
3M COMPANY: Brown Sues Over Exposure to Toxic Film-Forming Foams
ABBOTT LABORATORIES: Garza Files Suit in N.D. Illinois
ABC PHONES: Popov Suit Removed to S.D. California
ACUITY-CHS LLC: Salas Files Suit in D. Delaware
ALLTRAN FINANCIAL: Kahan Files FDCPA Suit in S.D. New York
ANTHROPOLOGIE INC: Kravets TCPA Suit Removed to S.D. Florida
ASSOCIATED SUPERMARKET: Iskhakova Files ADA Suit in E.D. New York
AV CONSTRUCTION: Gooding Seeks Overtime Pay for Painters Under FLSA
BEAR VALLEY: Stipulation to Continue Conditional Certification OK'd
BENIHANA INC: Kim Appeals Class Cert. Bid Denial in False Ad Case
BOATYARD GRILL: Pretrial Scheduling Order Entered in Heffron Suit
BUCKEYE PARTNERS: Ryan Appeals Dismissal of Breach of Contract Suit
CALVIN KLEIN INC: Luis Files ADA Suit in S.D. New York
CAPITAL LINK: Watson Files TCPA Suit in E.D. Missouri
CARHARTT INC: Luis Files ADA Suit in S.D. New York
CARVEL FRANCHISOR: Iskhakova Files ADA Suit in E.D. New York
CASH ADVANCE: Appeals Denial of Bid to Dismiss Stanton Case
CC SERVICES INC: Zinnamon Files ADA Suit in S.D. New York
CENTENE CORP: Oliver Wins Bid for Conditional Class Certification
CHAMPION PETFOODS: Eighth Cir. Affirms Dismissal of Song Class Suit
CINCINNATI CAPITAL: Lees Denied Leave to File 4th Amended Complaint
CINNABON FRANCHISOR: Hanyzkiewicz Files ADA Suit in E.D. New York
CIRCLE K: Case Management, Scheduling Order Entered in Lebron
CLARIVATE PLC: Faces ATRS Securities Suit Over Preferred Stock Drop
CLARIVATE PLC: Faces Boynton Beach Suit Over Share Price Drop
CLASSPASS INC: Fact Discovery in Tipsy Nail Suit Due August 29
COASTLINE TITLE: Court Denies Bid for Summary Judgment in RLI Suit
CONSUMER GUARDIAN: Hardwick FDCPA Suit Transferred to M.D. Pa.
CORECIVIC INC: Parties Seek Extension of Class Cert Bid Filing
COSSIO INSURANCE: Gunten Suit Removed to D. South Carolina
CRICKET WIRELESS: Postpichal Files Cross-Appeal in RICO Class Suit
CVS PHARMACY: Branch Sues Over Unpaid Minimum, Overtime Wages
DAVEK ACCESSORIES: Nisbett Files ADA Suit in S.D. New York
DISCOVERY COMMUNICATIONS: Carter Files Suit in S.D. New York
DUNNE MANNING: Williams Files FCRA Suit in E.D. Pennsylvania
EAST COAST FLIGHTCRAFT: Crumwell Files ADA Suit in S.D. New York
FIVE GUYS: Amended Class Action Scheduling Order Entered in Lusk
FLEETCOR TECH: Marion Files Bid for Conditional Certification
GENERAL MOTORS: Chapman Suit Seeks to Certify Classes
GEORGE WASHINGTON: Dismissal of Shaffer Suit Affirmed in Part
HEALTH IQ INSURANCE: Norris Sues Over Unsolicited Calls
HOON ON CO: Gannon Files ADA Suit in S.D. New York
JAKO ENTERPRISES: Iskhakova Files ADA Suit in E.D. New York
JC FRANCHISING GROUP: Iskhakova Files ADA Suit in E.D. New York
JOHN HARRINGTON: Kaplan Files Suit in D. Minnesota
JORDAN RESTAURANT: Hood Seeks to Certify Class
KATE BROWN: Maney Files Suit in Court of Appeals
LOGAN HEALTH: Smeltz Files Suit in D. Montana
LOUIE'S SEAFOOD: Liman Can't Opt-out of Spagnuoli Class Settlement
LTD FINANCIAL: Goldklang Files FDCPA Suit in S.D. New York
MARK WALDRON: Dam Files Suit in E.D. Washington
MARRIOT INTERNATIONAL: Tannenbaum Suit Removed to C.D. California
MDL 2841: Court Extends Class Cert Deadlines by 45 Days
MDL 2936: Claims in Suit Over Defective 303 THF Products Narrowed
MICHIGAN: "SORA" Suit Seeks Class Certification
MP MATERIAL: Kessler Topaz Reminds of April 25 Deadline
MUZI MOTORS: Brocklesby Alleges Mass Layoff Without Advance Notice
NATIONAL COLLEGIATE: Sexually Abused Student-Athletes, Suit Says
NEW YORK, NY: Scheduling Order Entered in Teagle Class Suit
NISSAN NORTH: Altima Rust Class Action in Missouri Settled
OCCIDENTAL PETROLEUM: Ct. Amends Class Certification Deadlines
OK FOODS: District Ct. Refuses to Compel Arbitration in Breach Suit
PATRICK ALLEN: Maney Files Suit in Court of Appeals
PERFECT PATTERNS: Daly Seeks Unpaid OT Wages Under FLSA & WWPCL
PHILIPS NORTH: Collins Seeks Overtime Wages for Hourly Employees
PILOT TRAVEL: Can Compel Arbitration in Waltrip Suit, Court Rules
PIZZA CZAR: Court Dismisses with Prejudice Ewing Class Suit
PROFESSIONAL CLAIMS: Appel Files FDCPA Suit in S.D. New York
REAL HOSPITALITY: Laid Off Workers File WARN Class Action
REBELZ CLUB: Seeks 90 Days Extension to File Class Cert. Bid Reply
RESURGENT CAPITAL: Tukin Files FDCPA Suit in E.D. Missouri
SAPUTO CHEESE: Class Cert. Hearing Date Vacated in Vasquez Suit
SASSO & SONS: Gramajo Seeks OT Premiums for Landscapers Under FLSA
SHATTUCK LABS: Rosen Law Firm Reminds of April 1 Deadline
SIMON EYE: Fails to Secure Patients' Info, Owens-Wilmoth Suit Says
SITE 25: Calel Class Suit Stayed
SOLSTICE SENIOR: Fails to Pay OT at Correct Hourly Rate, Garcia Say
SUFFOLK UNIVERSITY: Class Cert. Bid Filing Extended to March 21
TAMKO BUILDING: Revised Scheduling Order Entered in Melnick Suit
TASKUS INC: Kessler Topaz Reminds of April 25 Deadline
THIELSCH ENGINEERING: Duty Sues Over Failure to Pay Overtime Wages
THOMSON REUTERS: Bid to Stay Spurlock Suit OK'd Pending Arbitration
THOR INDUSTRIES: Indiana Court Trims Claims in Himan Class Suit
TONY'S FINER: State Automobile's Bid for Summary Judgment Denied
TRUSTMARK NATIONAL: Rotstain Suit Removed to S.D. Texas
ULTRACOR INC: Hobbs Files ADA Suit in S.D. New York
UNITED COLLECTION: Kola Files FDCPA Suit in S.D. New York
UNITED STATES: Nakka Appeals Dismissal of Immigration Visa Suit
UNITED STATES: Seeks to Stay Response on Class Action Certification
UNITED STATES: Suit Seeks to Certify Air Force Reserve Class
UNITED STATES: Thomson Correctional Employees Can Join COVID Suit
UNIVERSITY OF SAN FRANCISCO: Coach Fired Following Class Action
WELZ LLC: Fischler Files ADA Suit in S.D. New York
WILLIS & BROCK: Class Settlement in Estes Suit Wins Final Approval
*********
3M COMPANY: Brown Sues Over Exposure to Toxic Film-Forming Foams
----------------------------------------------------------------
Dana Brown, 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-00654-RMG (D.S.C., March 1,
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
stage 3 malignant melanoma 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:
Charles R. Houssiere, III, Esq.
CHARLES R. HOUSSIERE, III
1990 Post Oak Blvd., Suite 800
Houston, TX 77056-3812
Phone: 713-626-3700
Facsimile: 713-626-3709
Email: choussiere@hdhtex.com
ABBOTT LABORATORIES: Garza Files Suit in N.D. Illinois
------------------------------------------------------
A class action lawsuit has been filed against Abbott Laboratories.
The case is styled as Adriana Garza, individually and on behalf of
all others similarly situatedv. Abbott Laboratories doing business
as: Abbott Nutrition, Case No. 1:22-cv-01080 (N.D. Ill., March 1,
2022).
The nature of suit is stated as Personal Inj. Prod. Liability.
Abbott Laboratories -- https://www.abbott.com/ -- is an American
multinational medical devices and health care company with
headquarters in Abbott Park, Illinois.[BN]
The Plaintiff is represented by:
Timothy J. Becker, Esq.
JOHNSON BECKER PLLP
444 Cedar Street, Suite 1800
St. Paul, MN 55101
Phone: (612) 436-1800
Email: tbecker@johnsonbecker.com
ABC PHONES: Popov Suit Removed to S.D. California
-------------------------------------------------
The case styled as Nikolay Popov, Ross Toussieng, Ghazal
Valadkhani, Luis Venegas, Chase Oliver, Matthew Lung, Alexander
Atkins, Aaron Ferreira, Abraham I. Cambambia, Alberto G. Meza, Alex
Kvetnoy, Alfonso Borja, Alfredo Esquivel, Alonzo Grey, Andres Vera
Alvarez, Andrew V. Castillo, Angelo Acocella, Armando Godoy Jr.,
Aurelio Corona, Bradley Wilkerson, Brandon J. Dillard, Brandon
Mathison, Brandon Miller, Breanna Coon, Brian A Linares, Calen A
Martin, Chris Joubert, Christian A Matti, Christian E. Rocha,
Christian Guzman, Christian Olande, Chuckhavunh Thongrasmy,
Clarissa Escoto, Clint Badal, Cristian Santos, Daniel Enriquez,
David Ahn, Deandre Jackson, Dennis Gordon, Diego A Sanchez,
Domineke A Dove, Dontae Dove, Douglas Belan, Edward Oropeza,
Ernesto Delreal, Giovan R. Hernandez, Hayden E. Roberts, Hazem
Ismail, Herbert Zapata, James Corbin, Jared Blazer, Jeremiah A
Brodehl, Jesus A Tinoco, Jesus I. Tames, John Bidwell, John D.
Trappe, Joseph Ha, Joseph Mello, Joshua Ha, Justin Braxtan, Justin
Bright, Kevin Gonzalez, Leonardo Navarro, Luis Hernandez, Maria
Guzman, Mariano Diaz, Matthew Cuellar, Matthew Gamel, Mazi Zadeh,
Mikale Washington, Misha Rahman, Morgan A Conner-Cato, Patrick
Simbulan, Ponareay Pin, Rani Aridi, Reyhaneh Mansoori, Robert
Vinson, Roe Gossett, Sean Evangelisti, Sebar Arab, Sebastian
Clementi, Seyed Ali Hosseini, Simon Manzano, Spencer R Colomy,
Troix Taylor, Troy Bishop, Uriel C. Guzman, Valerie Gallegos,
Yousuf Manya, each individually and on behalf of all others
similarly situated v. ABC Phones of North Carolina, Inc., Does 1
through 25, inclusive, Case No. 37-02020-00026318-CU, was removed
from the Superior Court, San Diego County, to the U.S. District
Court for the Southern District Of California on March 10, 2022.
The District Court Clerk assigned Case No. 3:22-cv-00327-LL-MDD to
the proceeding.
The nature of suit is stated as Jobs Civil Rights.
ABC Phones of North Carolina, Inc. was founded in 1996. The
Company's line of business includes providing two-way
radiotelephone communication services such as cellular telephone
service.[BN]
The Plaintiffs are represented by:
Jacob N. Whitehead, Esq.
WHITEHEAD EMPLOYMENT LAW
15615 Alton Parkway, Suite 175
Irvine, CA 92618
Phone: (949) 936-4001
Fax: (949) 450-1588
Email: jacob@jnwpc.com
The Defendants are represented by:
Brandon S. Gray, Esq.
Robert L. Shipley, Esq.
ROBERT L. SHIPLEY, APLC
2784 Gateway Road, Suite 104
Carlsbad, CA 92009
Phone: (760) 438-5199
Fax: (760) 438-2014
Email: bgray@shipleylaw.com
rshipley@shipleylaw.com
ACUITY-CHS LLC: Salas Files Suit in D. Delaware
-----------------------------------------------
A class action lawsuit has been filed against Acuity-CHS, LLC. The
case is styled as Ashley Salas, individually and on behalf of all
others similarly situated v. Acuity-CHS, LLC doing business as:
Comprehensive Health Services, LLC, Case No. 1:22-cv-00317-UNA (D.
Del., March 11, 2022).
The nature of suit is stated as Other P.I.
Acuity-CHS, LLC doing business as Comprehensive Health Services,
Inc. -- http://www.chsvisit.com/-- is a for-profit medical
management services provider that contracts with the United States
federal government.[BN]
The Plaintiff is represented by:
Peter Bradford deLeeuw, Esq.
DeLEEUW LAW LLC
1301 Walnut Green Road
Wilmington, DE 19807
Phone: (302) 274-2180
Email: brad@deleeuwlaw.com
ALLTRAN FINANCIAL: Kahan Files FDCPA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Alltran Financial,
LP, et al. The case is styled as Hana Kahan, individually and on
behalf of all others similarly situated v. Alltran Financial, LP,
CACH, LLC, Case No. 7:22-cv-01986 (S.D.N.Y., March 9, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Alltran Financial LP -- https://alltran.com/ -- operates as an
accounts receivable management company.[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
ANTHROPOLOGIE INC: Kravets TCPA Suit Removed to S.D. Florida
------------------------------------------------------------
The case styled as Esta Kravets, individually and on behalf of all
others similarly situated v. Anthropologie, Inc., Case No. F,
CACE-22-001611, was removed from the 17th Judicial Circuit in and
for Broward County, to the U.S. District Court for the Southern
District of Florida on Feb. 28, 2022.
The District Court Clerk assigned Case No. 0:22-cv-60443-BB to the
proceeding.
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act.
Anthropologie -- https://www.anthropologie.com/ -- is a lifestyle
brand that imparts a sense of beauty, optimism and discovery to our
customer.[BN]
The Plaintiff is represented by:
Andrew John Shamis, Esq.
Garrett O. Berg, Esq.
SHAMIS & GENTILE P.A.
14 N.E. 1st Ave., Ste. 1205
Miami, FL 33132
Phone: (305) 479-2299
Fax: (786) 623-0915
Email: ashamis@sflinjuryattorneys.com
gberg@shamisgentile.com
- and -
Scott Adam Edelsberg, Esq.
EDELSBERG LAW PA
20900 NE 30th Ave., 417
Aventura, FL 33180
Phone: (305) 975-3320
Email: scott@edelsberglaw.com
The Defendant is represented by:
Meredith C. Slawe, Esq.
Michael W. McTigue, Jr., Esq.
COZEN O'CONNOR
1650 Market Street, Suite 2800
Philadelphia, PA 19103
Phone: (215) 665-2000
Email: mslawe@cozen.com
mmctigue@cozen.com
- and -
Matthew B. Criscuolo, Esq.
COZEN O'CONNOR
One North Clematis Street, Suite 510
West Palm Beach, FL 33401
Phone: (561) 515-5250
Fax: (561) 515-5230
Email: mcriscuolo@cozen.com
ASSOCIATED SUPERMARKET: Iskhakova Files ADA Suit in E.D. New York
-----------------------------------------------------------------
A class action lawsuit has been filed against Associated
Supermarket Group, LLC. The case is styled as Marina Iskhakova, on
behalf of herself and all others similarly situated v. Associated
Supermarket Group, LLC, Case No. 1:22-cv-01280 (E.D.N.Y., March 9,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Associated Supermarket Group -- https://www.asghq.com/ -- provides
retail solutions to independently owned grocery stores in the
Northeast and mid-Atlantic region, providing distribution,
marketing, merchandising, promotional services, and store
financing.[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
AV CONSTRUCTION: Gooding Seeks Overtime Pay for Painters Under FLSA
-------------------------------------------------------------------
XENA GOODING, on behalf of herself and on behalf of all others
similarly situated v. AV CONSTRUCTION, LLC, Case No.
8:22-cv-00561-MSS-SPF (M.D. Fla., March 11, 2022) is a class action
for damages under the Fair Labor Standards Act for failure to pay a
minimum wage, failure to pay overtime wages under, and unpaid wages
under Florida common law.
The putative class of similarly situated employees consists of all
other painters employed by Defendant within the last three years.
These similarly situated persons will be referred to as "Members of
the Class."
The Plaintiff and Members of the Class worked hours at the
direction of Defendant, and they were not paid at least the
applicable minimum wage for all of the hours that they worked. They
worked hours in excess of 40 hours within a work week for
Defendant, and they were entitled to be paid an overtime premium
equal to one and one-half times their regular hourly rate for all
of these hours, says the suit.
AV CONSTRUCTION, LLC is a general contractor based in Florida.[BN]
The Plaintiff is represented by:
Luis A. Cabassa , Esq.
WENZEL FENTON CABASSA, P.A.
1110 N. Florida Avenue, Suite 300
Tampa, FL 33602
Telephone: (813) 224-0431
Facsimile: (813) 229-8712
E-mail: lcabassa@wfclaw.com
gnichols@wfclaw.com
BEAR VALLEY: Stipulation to Continue Conditional Certification OK'd
-------------------------------------------------------------------
In the class action lawsuit captioned as KYANA RAMPLEY,
individually and on behalf of all employees similarly situated, v.
BEAR VALLEY COMMUNITY HEALTHCARE DISTRICT, and DOES 1 through 10,
inclusive, Case No. 5:21-cv-01270-JWH-SHK (C.D. Cal.), the Hon.
Judge John W. Holcomb entered an order granting parties joint
stipulation to continue conditional certification motion and
related briefing:
1. The deadline to file Conditional June 6, 2022
Class Certification Motion is
continued to:
2. The deadline to file Opposition June 27, 2022
to Class Certification Motion is
continued to:
3. The deadline to file Reply to July 8, 2022
Class Certification Motion is
continued to:
4. The hearing on Class July 29, 2022
Certification Motion is
continued to:
5. The deadline to file Jan. 31, 2023
Decertification Motion is
continued to:
6. The deadline to file Feb. 21, 2023
Opposition to Decertification
Motion is continued to:
7. The deadline to file Reply March 3, 2023
to Decertification Motion is
continued to:
8. The hearing on Decertification March 24, 2023
Motion is continued to:
A copy of the Court's order dated March 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3teBQ9S at no extra charge.[CC]
The Plaintiff is represented by:
Kevin Mahoney, Esq.
John A. Young, Esq.
MAHONEY LAW GROUP, APC
249 E. Ocean Blvd., Ste. 814
Long Beach, CA 90802
Telephone: (562) 590-5550
Facsimile: (562) 590-8400
E-mail: kmahoney@mahoney-law.net
jyoung@mahoney-law.net
The Defendant is represented by:
Jeffrey S. Ranen, Esq.
William C. Sung, Esq.
LEWIS BRISBOIS BISGAARD & SMITH LLP
633 West 5th Street, Suite 4000
Los Angeles, CA 90071
Telephone: (213) 250-1800
Facsimile: (213) 250-7900
E-Mail: Jeffrey.Ranen@lewisbrisbois.com
William.Sung@lewisbrisbois.com
BENIHANA INC: Kim Appeals Class Cert. Bid Denial in False Ad Case
-----------------------------------------------------------------
Plaintiff Youngsuk Kim filed an appeal from a court ruling entered
in the lawsuit entitled YOUNGSUK KIM, an individual, and on behalf
of other members of the general public similarly situated, v.
BENIHANA, INC, a Florida corporation, Case No.
5:19-cv-02196-JWH-KK, in the U.S. District Court for the Central
District of California, Riverside.
According to the complaint, between 2015 and 2019, Kim patronized
various Benihana restaurants in California, including locations in
Santa Monica, where Kim purchased certain Food Products on
Benihana's menu that were advertised as containing "crab," among
other ingredients. Before purchasing the Food Products, Kim read
the hardcopy and online menus, and he relied upon the statements
therein regarding the Food Products' respective ingredients. Under
each menu item, Benihana's menus list that item's respective
ingredients. With respect to the Food Products, Benihana's menus
list "crab" as one of the ingredients. There is also a symbol
appended to the "crab" ingredient that refers "'Kani kama crab' and
'kani kama crab mix' containing imitation crab." Based upon those
alleged representations, Kim believed that the Food Products
contained some amount of real crab, and he made the decision to
purchase the Food Products based upon that belief. The Food
Products, however, do not actually contain any amount of real crab;
therefore, according to Kim, the menus are misleading, deceptive,
and false.
The lawsuit was removed from the Superior Court of the State of
California, County of San Bernardino, to the U.S. District Court
for the Central District of California on Nov. 13, 2019.
As reported in the Class Action Reporter on March 7, 2022, the Hon.
Judge John W. Holcomb entered an order denying, among other
things, a motion for class certification filed by the Plaintiff.
The Court held that, "Because the Court finds that Kim fails to
present a viable damages model, the Court concludes that class
certification is not appropriate under Rule 23(b)(3)."
The Plaintiff is taking an appeal from this ruling.
The appellate case is captioned as Youngsuk Kim v. Benihana, Inc.,
Case No. 22-80016, in the United States Court of Appeals for the
Ninth Circuit, filed on March 8, 2022.[BN]
Plaintiff-Petitioner YOUNGSUK KIM, on behalf of himself and all
others similarly situated, is represented by:
Jong Yun Kim, Esq.
LAW OFFICES OF JONG YUN KIM
3600 Wilshire Blvd., Suite 2226
Los Angeles, CA 90010
Telephone: (213) 351-9400
E-mail: jongkimlaw@hotmail.com
- and -
Stephanie Emi Yasuda, Esq.
LAW OFFICES OF KENNETH H. YOON
One Wilshire Boulevard
Los Angeles, CA 90017-3383
Telephone: (213) 612-0988
E-mail: syasuda@yoonlaw.com
- and -
Kenneth H. Yoon, Esq.
LAW OFFICES OF KENNETH H. YOON
One Wilshire Boulevard
Los Angeles, CA 90017-3383
Telephone: (213) 612-0988
E-mail: kyoon@yoon-law.com
Defendant-Respondent BENIHANA, INC. is represented by:
Daniel J. Herling, Esq.
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
44 Montgomery Street, 36th Floor
San Francisco, CA 94104
Telephone: (415) 432-6000
E-mail: djherling@mintz.com
- and -
Adam Korn, Esq.
Arameh Zargham O'Boyle, Esq.
MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO, PC
2029 Century Park, E, Suite 3100
Los Angeles, CA 90067
Telephone: (310) 586-3200
BOATYARD GRILL: Pretrial Scheduling Order Entered in Heffron Suit
-----------------------------------------------------------------
In the class action lawsuit captioned as Billie Jo Heffron v. The
Boatyard Grill, Inc., et al., Case No. e 3:21-cv-01282-LEK-ML
(N.D.N.Y.), the Hon. Judge Misrolav Lovric entered an uniform
pretrial scheduling order as follows:
-- Any motion to join any person as a May 31, 2022
party to this action shall be made
on or before:
-- Any motion to amend any pleading in May 31, 2022
this action shall be made on or before:
-- The parties are directed to file a May 16, 2022
status report on or before:
-- Rule 26(a)(1) Mandatory Disclosures Feb. 23, 2022
are to be exchanged by:
-- Initial Written Discovery Demands Feb. 23, 2022
must be served by:
-- All discovery in this matter is to Jan. 9, 2023
be completed on or before:
-- The plaintiff(s) shall identify any Oct. 11, 2022
expert(s) and, unless waived, shall
serve on the other parties the expert's
written report no later than:
-- The defendant(s) shall identify Nov. 25, 2022
any expert(s) and, unless waived,
shall serve on the other parties
the expert's written report no later
than:
-- Motions for Class Certification are Oct. 31, 2022
to be filed on or before
-- Mandatory Mediation shall be May 2, 2022
completed by:
A copy of the Court's order dated March 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3IdtBPt at no extra charge.[CC]
BUCKEYE PARTNERS: Ryan Appeals Dismissal of Breach of Contract Suit
-------------------------------------------------------------------
Plaintiff Walter E. Ryan, Jr. filed an appeal from a court ruling
entered in the lawsuit entitled WALTER E. RYAN, JR., individually
and on behalf of others similarly situated, Plaintiff v. BUCKEYE
PARTNERS, L.P., BUCKEYE GP LLC, CLARK C. SMITH, PIETER BAKKER,
BARBARA M. BAUMANN, BARBARA J. DUGANIER, JOSEPH A. LASALA, JR.,
MARK C. McKINLEY, LARRY C. PAYNE, OLIVER G. RICHARD, III, FRANK S.
SOWINSKI, MARTIN A. WHITE, IFM INVESTORS PTY LTD, IFM GLOBAL
INFRASTRUCTURE FUND, HERCULES INTERMEDIATE HOLDINGS LLC,
Defendants, C.A. No. 2021-0432-JRS, in the Court of Chancery of
Delaware.
In the putative class action, Plaintiff Ryan, a former unitholder
of Buckeye, brings several claims of wrongdoing against both
sell-side and buy-side defendants with respect to the acquisition
of Buckeye by a subsidiary of IFM Global Infrastructure Fund ("IFM
GIF"), in which Buckeye's public unitholders received $41.50 per
unit in cash consideration (the "Transaction"). The Transaction was
approved by approximately 96% of Buckeye's voting unitholders.
According to the Plaintiff, the Defendants structured the
Transaction to capture earnings and favorable tax treatment for the
acquirer while avoiding paying distributions to unitholders. He
brings breach of contract, breach of the implied covenant and good
faith and fair dealing (the "implied covenant") and breach of
fiduciary duty claims against the sell-side defendants, as well as
aiding and abetting and tortious interference with contract claims
against the buy-side defendants. The Plaintiff brings the putative
class action suit on behalf of himself and a class of Buckeye's
unitholders.
The Plaintiff alleges that Defendants deliberately selected the
November 1 closing date to avoid paying the unitholders a
distribution that was customarily declared in late October or early
November, which, in turn, maximized the value transferred from the
unit owners to the Buyers. He also takes issue with the tax
consequences of the Transaction to unitholders, alleging the
Defendants wrongfully structured the Transaction so that millions
of assets that were not distributed to the cashed-out unitholders
were nonetheless taxed to the Buyers. The Defendants also allegedly
refused to provide the Plaintiff with tax information he
requested.
The Complaint comprises four counts: (1) breach of contract against
the Buckeye Defendants, (2) breach of the implied covenant against
the Buckeye Defendants, (3) breach of fiduciary duty against the
Buckeye Defendants, and (4) aiding and abetting/tortious
interference against the IFM Defendants. In response, the Buckeye
Defendants and IFM Defendants both filed Motions to Dismiss the
Complaint under Court of Chancery Rule 12(b)(6).
As reported in the Class Action Reporter on Feb. 23, 2022, the
Court of Chancery of Delaware granted the Defendants' motion to
dismiss all claims.
The Plaintiff now seeks a review of this order.
The appellate case is captioned as WALTER E. RYAN, JR.,
individually and on behalf of others similarly situated,
Plaintiff-Appellant v. BUCKEYE PARTNERS, L.P., And CLARK C. SMITH,
PEITER BAKKER, BARBARA M. BAUMANN, BARBARA J. DUGANIER, JOSEPH A.
LASCALA, JR., MARK C. MCKINLEY, LARRY C. PAYNE, OLIVER G. RICHARD,
III, FRANK S. SOWINSKI, MARTIN A. WHITE, and IFM INVESTORS PTY LTD,
IFM GLOBAL INFRASTRUCTURE FUND, HERCULES INTERMEDIATE HOLDINGS LLC
and HERCULES MERGER SUB LLC Defendants- Appellees, Case No.
77,2022, in the Supreme Court of the State of Delaware, filed on
March 9, 2022.[BN]
Plaintiff-Appellant WALTER E. RYAN, JR., individually and on behalf
of others similarly situated, is represented by:
Clinton A. Krislov, Esq.
Kenneth T. Goldstein, Esq.
Christopher M. Hack, Esq.
KRISLOV & ASSOCIATES, LTD.
20 North Wacker Dr.
Civic Opera Building, Suite 1006
Chicago, IL 60606
Telephone: (312) 606-0500
E-mail: clint@krislovlaw.com
ken@krislovlaw.com
chris@krislovlaw.com
- and -
Blake A. Bennett, Esq.
COOCH AND TAYLOR, P.A.
The Nemours Building
1007 N. Orange St., Suite 1120
Wilmington, DE 19801
Telephone: (302) 984-3800
- and -
Samuel B. Edwards, Esq.
Ryan Cook, Esq.
SHEPHERD, SMITH, EDWARDS & KANTAS, LLP
1010 Lamar, Suite 900
Houston, TX 77002
Telephone: (713) 227-2400
Facsimile: (713) 227-7215
E-mail: sedwards@sseklaw.com
rcook@sseklaw.com
CALVIN KLEIN INC: Luis Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Calvin Klein, Inc.
The case is styled as Kevin Yan Luis, individually and on behalf of
all others similarly situated v. Calvin Klein, Inc., Case No.
1:22-cv-01656-AT (S.D.N.Y., Feb. 28, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Calvin Klein Inc. -- https://www.calvinklein.us/en/ -- is an
American fashion house established in 1968. It specializes in
leather, lifestyle accessories, home furnishings, perfumery,
jewellery, watches and ready-to-wear.[BN]
The Plaintiff is represented by:
Noor Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
CAPITAL LINK: Watson Files TCPA Suit in E.D. Missouri
-----------------------------------------------------
A class action lawsuit has been filed against Capital Link
Management, LLC. The case is styled as Rachelle Watson, on behalf
of herself and all others similarly situated v. Capital Link
Management, LLC, Case No. 4:22-cv-00293-SRW (E.D. Mo., March 10,
2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Capital Link Management, LLC -- https://capitallinkmanagement.com/
-- is a debt collection agency located in Amherst, New York.[BN]
The Plaintiff is represented by:
Anthony E. LaCroix, Esq.
LaCROIX LAW FIRM, LLC
1600 Genessee, Suite 956
Kansas City, MO 64102
Phone: (816) 399-4380
Fax: (816) 399-4380
Email: tony@lacroixlawkc.com
CARHARTT INC: Luis Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Carhartt, Inc. The
case is styled as Kevin Yan Luis, individually and on behalf of all
others similarly situated v. Carhartt, Inc., Case No.
1:22-cv-01646-RA (S.D.N.Y., Feb. 28, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Carhartt, Inc. -- https://www.carhartt.com/ -- is an American
apparel company founded in 1889, known for heavy-duty working
clothes such as jackets, coats, overalls, coveralls, vests, shirts,
jeans, dungarees, fire-resistant clothing and hunting apparel.[BN]
The Plaintiff is represented by:
Noor Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
CARVEL FRANCHISOR: Iskhakova Files ADA Suit in E.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Carvel Franchisor
SPV, LLC. The case is styled as Marina Iskhakova, on behalf of
herself and all others similarly situated v. Carvel Franchisor SPV,
LLC, Case No. 1:22-cv-01354 (E.D.N.Y., March 11, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Carvel Franchisor SPV LLC -- https://carvelfranchising.com/ -- is
an ice cream parlor in Orange County.[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
CASH ADVANCE: Appeals Denial of Bid to Dismiss Stanton Case
-----------------------------------------------------------
Cash Advance Centers, Inc. filed an appeal from a court ruling
entered in the lawsuit entitled Kamisha Stanton v. Cash Advance
Centers, Inc., Case No. 4:21-cv-00285, in the U.S. District Court
for the Western District of Missouri - Kansas City.
This putative class action is filed pursuant to the Telephone
Consumer Protection Act on April 28, 2021. The Defendant, an issuer
of payday loans, installment loans, and title loans, allegedly
violates the TCPA by using prerecorded message calls to collect
debts, even after having been informed by recipients of those calls
that it has reached the wrong person and telephone number. Through
this action, the Plaintiff seeks injunctive relief to halt
Defendant's unlawful conduct, statutory damages on behalf of
themself and members of the Class, and any other available legal or
equitable remedies.
On January 21, 2022, the Defendant filed a motion to dismiss case
or stay litigation and compel arbitration or, in the alternative,
to dismiss the class action claims. District Judge Stephen R. Bough
entered an Order on February 23, 2022, denying this motion.
The Defendant now seeks a review of this order.
The appellate case is captioned as Kamisha Stanton v. Cash Advance
Centers, Inc., Case No. 22-1466, in the United States Court of
Appeals for the Eighth Circuit, filed on March 7, 2022.
The briefing schedule in the Appellate Case states that:
-- BRIEF OF APPELLANT Cash Advance Centers, Inc. is due on April
18, 2022;
-- Appendix is due on April 18, 2022; and
-- Appellee brief is due 30 days from the date the court issues
the Notice of Docket Activity filing the brief of appellant.[BN]
Defendant-Appellant Cash Advance Centers, Inc, a Delaware
corporation, is represented by:
Michelle Annette Fox, Esq.
STINSON LLP
1201 Walnut Street, Suite 2900
Kansas City, MO 64106-2150
Telephone: (816) 842-8600
- and -
John Robert Munich, I, Esq.
STINSON LLP
7700 Forsyth Boulevard, Suite 1100
Saint Louis, MO 63105
Telephone: (314) 863-0800
- and -
Lewis Steven Wiener, Esq.
SUTHERLAND & ASBILL
700 Sixth Street, N.W., Suite 700
Washington, DC 20001-3980
Telephone: (202) 383-0140
Plaintiff-Appellee Kamisha Stanton, individually and on behalf of
all others similarly situated, is represented by:
Martin L. Daesch, Esq.
ONDER LAW, LLC
110 E. Lockwood, 1st Floor
Saint Louis, MO 63119
Telephone: (314) 963-9000
- and -
Ignacio Javier Hiraldo, Esq.
IJH LAW
1200 Brickell Avenue, Suite 1950
Miami, FL 33131
- and -
Manuel Hiraldo, Esq.
HIRALDO, P.A.
401 E. Las Olas Boulevard, Suite 1400
Fort Lauderdale, FL 33301
Telephone: (954) 400-4713
CC SERVICES INC: Zinnamon Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against CC Services, Inc. The
case is styled as Warren Zinnamon, on behalf of himself and all
others similarly situated v. CC Services, Inc., Case No.
1:22-cv-01961 (S.D.N.Y., March 9, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
CC Services, Inc. -- https://www.countryfinancial.com/ -- is
located in Carson City, Nevada and is part of the Other Financial
Investment Activities Industry.[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
CENTENE CORP: Oliver Wins Bid for Conditional Class Certification
-----------------------------------------------------------------
In the case, DENASHA OLIVER, individually and on behalf of a class
of others similarly situated, Plaintiffs v. CENTENE CORPORATION and
CENTENE MANAGEMENT COMPANY, LLC., Defendants, Case No. 4:21CV199
RLW (E.D. Mo.), Judge Ronnie L. White of the U.S. District Court
for the Eastern District of Missouri, Eastern Division, granted the
Plaintiff's Renewed Motion for Pre-Discovery Conditional
Certification.
I. Background
Plaintiff Oliver is an Illinois resident who worked as a Customer
Service Representative (CSR) for the Defendants from June 2019 to
March 2020. Opt-in Plaintiff Jeanecia Nolan is an Illinois resident
who worked for the Defendants as a CSR at their Carbondale,
Illinois service center and at Ms. Nolan's home from Nov. 11, 2019
to June 2020. Opt-in Plaintiff Jacki Livingston worked for staffing
agency Total Medical Staffing from November 2019 through March 2020
as a CSR at the Defendants' call center in Takoma, Washington.
The Plaintiff filed a Collective and Class Action and Jury Demand
on Feb. 17, 2021, alleging claims for Violation of the Fair Labor
Standards Act of 1938 ("FLSA"). On April 23, 2021, Oliver filed a
First Amended Collective and Class Action and Jury Demand. On May
14, 2021, Oliver filed the instant Renewed Motion for Pre-Discovery
Conditional Certification. On Aug. 3, 2021, Plaintiffs Oliver and
Livingston filed their Second Amended Collective and Class Action
and Jury Demand.
II. Discussion
In her Renewed Motion for Pre-Discovery Conditional Certification,
the Plaintiff alleges that the Defendants participated in a "common
scheme and policy of failing to compensate CSRs for all compensable
time, including time spent booting up and shutting down their
computers and logging into and out of essential computer software
programs and applications before and after their shifts and during
unpaid lunch breaks."
The Plaintiff proposes certifying the proposed collective FLSA
class: "All current and former hourly call center workers,
including but not limited to Customer care associates, Customer
Support Representatives, and Customer Service Representative, who
worked for Defendants at any time three years prior to the date
this motion is granted through judgment."
The Plaintiff further asks the Court to order the Defendants "to
identify all putative collective action members by providing a list
of their names, last known addresses, dates and location of
employment, phone numbers, and email addresses in electronic and
importable format within 20 days of the entry of the order."
The Defendants oppose class certification. They claim that
conditional class certification is improper because the Plaintiffs
have not demonstrated a common policy. In response, the Plaintiff
contends that the proposed class is proper based upon the lenient
burden for conditional class certification.
A. Standing
As an initial matter, the Defendants contend that the Plaintiff
lacks standing to pursue this litigation because she was never
employed by the Defendants. They argue that the Plaintiff has not
submitted any evidence in support of her claim that the Defendants
and her staffing agency, HireLevel, were joint employers. The
Defendants claim that the "individualized questions" regarding the
true employer of the Plaintiff and putative plaintiffs preclude
collective treatment. The Defendants claim that the Plaintiff has
failed to offer substantial allegations concerning the factors
necessary to determine whether Defendants were her employer.
Ultimately, Judge White holds that arguments related to the
Defendants' status as a joint employer are premature and more
properly brought at the decertification or summary judgment stage.
In any event, he holds that the Plaintiff has provided evidence
that the allegedly unlawful policy was implemented, at least in
part, by the Defendants. The Plaintiff's allegations, and the
affidavits submitted by the Plaintiffs, all plausibly suggest that
the Plaintiff may be able to prove that Defendants were joint
employers, along with the individual staffing agencies.
B. Uniform Policy
The Plaintiff "seeks to certify a collective action comprised of
Defendants' contingent worker CSRs." She contends that all CSR
positions nationwide are similar in that they: (1) are paid hourly,
(2) are non-exempt, (3) use most of the same computer programs, (4)
are subject to the same attendance and schedule adherence policies,
(5) have the same job duties, and (6) use a self-recording
timekeeping system.
The Defendants contend that her documents contain no reference to
timekeeping and only apply to the IlliniCare health plan
subsidiary. They argue that the Plaintiff's "off-the-clock claim is
not derived from policies, but from the manner she was allegedly
`trained and directed' and how timekeeping was 'implemented' at
each independent subsidiary" and the "alleged unique personal
experiences of staffing agency employees at two small call
centers."
Upon consideration, Judge White finds that, given the lenient
notice standard, the Plaintiff has met her burden to show
conditional certification is proper. The Plaintiff has provided
substantial allegations of a common, nationwide policy that
violates the FLSA. Courts in the Circuit have frequently allowed
conditional certification based upon only three (or fewer)
declarations, identifying a corporate-wide policy of denying
overtime compensation. In light of the uniform job postings from
one of the Defendants' service centers to the next and the
Plaintiffs' declaration testimony, Judge White finds that such
information "could demonstrate common policies or expectations at
least with respect to the call centers," sufficient to warrant a
nationwide class.
C. Vague and Unsupported allegations
The Defendants further claim that the Plaintiff's bare assertions
cannot meet her burden at this stage. They argue that the only
evidence of an unlawful practice are the declarations of Oliver,
Nolan, and Livingston, but those declarations do not provide any
"foundation for any knowledge about the pay practices experienced
by other CSRs at Carbondale or Tacoma, let alone nationwide." The
Defendants argue that the only evidence of a common policy is the
lawful policy requiring accurate timekeeping and prohibiting
off-the-clock work.
Contrary to the Defendants' argument, Plaintiff Oliver and all of
the opt-in Plaintiffs state that they are aware of "numerous other
CSRs" who had knowledge of the Defendants' policies that required
CSRs to work off-the-clock. In addition, Judge White notes the
similar allegations of off-the-clock work occurred at the
Carbondale, Illinois and the Tacoma, Washington locations,
indicating that these policies were not isolated a single manager
or location. Further, he acknowledges that the Plaintiff has
offered to limit the scope of the proposed collective to
Defendants' CSRs that used Beeline to record their time.
Applying this restriction, Judge White finds that all CSRs would
have been subject to essentially the same time keeping and schedule
adherence policies, performance metrics, and job duties. Thus, he
finds that there are no discernable differences between the
experiences of the CSRs that would require the Court to deny
conditional certification. He finds sufficient support for the
Plaintiff's collective claims and grants conditional collective
certification.
D. Notice, Tolling, and Request for Status Conference
Judge White notes that the Plaintiffs filed a Second Amended
Complaint on Aug. 3, 2021 and requested a Status Conference on Jan.
27, 2022. Given this Memorandum and Order, he does not believe that
a status conference is necessary. However, he notes that the
Defendants relied on their briefing related to the original Motion
for Conditional Certification when identifying their objections to
the Notice.
Given that the Plaintiffs have filed a Second Amended Complaint and
because of the minimal briefing done by the parties as to the
substance of the Notice, Judge White orders the parties to meet and
confer to address their issues related to the Notice. Likewise, he
acknowledges that the parties disagree regarding whether the Court
should allow equitable tolling of the action. Judge White also
orders the parties to meet and confer to resolve the issue of
equitable tolling in this action, particularly in light of the
Court's Memorandum and Order.
III. Disposition
Accordingly, Judge White granted the Plaintiff's Renewed Motion for
Pre-Discovery Conditional Certification. The parties will meet and
confer regarding their issues related to the proposed Notice and
equitable tolling in the case. The parties will provide a status
report to the Court no later than March 28, 2022, identifying when
the parties met to discuss and whether they have reached an
agreement on these issues. In the event that the parties cannot
reach an agreement, the parties will each submit briefs no later
than March 28, 2022, outlining their positions.
The Putative Class Counsels' Motion for Status Conference is
denied.
A full-text copy of the Court's March 8, 2022 Memorandum & Order is
available at https://tinyurl.com/2p8cecu6 from Leagle.com.
CHAMPION PETFOODS: Eighth Cir. Affirms Dismissal of Song Class Suit
-------------------------------------------------------------------
In the case, Jennifer Song, on behalf of themselves and all others
similarly situated; Scott Wertkin, on behalf of themselves and all
others similarly situated, Plaintiffs-Appellants v. Champion
Petfoods USA, Inc.; Champion Petfoods, LP, Defendants-Appellees,
Case No. 20-3689 (8th Cir.), the U.S. Court of Appeals for the
Eighth Circuit affirmed the district court's order granting
Champion's motion to dismiss.
I. Background
Plaintiffs Jennifer Song and Scott Wertkin filed a putative class
action, alleging that they were misled by claims made on packages
of dog food manufactured and distributed by Champion Petfoods USA,
Inc., and Champion Petfoods, LP (Champion).
Champion manufactures two brands of dog food, Acana and Orijen.
Both brands are distributed throughout the United States and have
been manufactured at Champion's production facility in Auburn,
Kentucky, since 2016.
Champion launched Acana in the 1990s and advertised it as premium,
high-quality dog food. It launched Orijen in 2006, with packaging
claiming that the dog food was "biologically appropriate." The term
was meant to convey that the food contained ingredients that "dogs
are evolved to eat," i.e., meat and fish. Champion updated Acana's
packaging to include the "biologically appropriate" claim. Acana
and Orijen packaging also made claims about "fresh regional
ingredients." Both brands' packaging also included statements about
the food being natural, such as "nourish as nature intended" and
"delivering nutrients naturally."
Champion made more specific claims on the packaging of certain dog
food formulas. For example, the Acana Lamb & Apple Singles Formula
packaging prominently states that "this 13 lb package of Acana is
made with 6 1/2 lbs grass-fed lamb ingredients" and that "half is
fresh or raw and half is dried or oils." The Orijen Six Fish
packaging claims, in large font, that the 13 lb package "is made
with over 11 lb of fresh, raw or dried fish ingredients." It also
depicts the types of fish used to make the food, listing below the
images the approximate amount of each fish used, including fresh,
raw, or dried mackerel, herring, flounder, redfish, monkfish, and
silver hale.
The Plaintiffs are dog owners who purchased Acana and Orijen dog
food. The second amended complaint alleged twelve claims, all aimed
at establishing Champion's liability for the following allegedly
false, misleading, or deceptive statements: "biologically
appropriate," "fresh regional ingredients," "nourish as nature
intended," and "delivering nutrients naturally." Plaintiffs alleged
that Champion charges "one of the highest, if not the highest,
price premiums in the market for their dog foods" and that they
relied on Acana and Orijen packaging when deciding to pay this
premium. According to Plaintiffs, the packaging was deceptive
because the dog food contained or had a risk of containing
Bisphenol A (BPA), heavy metals, and non-fresh, non-regional
ingredients. Champion moved to dismiss all claims.
During a hearing on Champion's motion, the Plaintiffs articulated
their definitions for the alleged misrepresentations. They
explained that "'biologically appropriate' means, unless otherwise
stated on the packaging, that the dog food is made from all fresh
ingredients and does not contain any amount of heavy metals or
BPA." They defined "fresh regional ingredients" as meaning, unless
otherwise specified, that all ingredients used to make Champion dog
food are fresh and regional, with "regional" defined as within 100
miles of the Auburn production facility. The Plaintiffs claimed
that the natural statements were deceptive because the dog food
contained or had a risk of containing unnatural ingredients or
contaminants, like BPA.
The district court dismissed the second amended complaint based on
the Plaintiffs' failure to plausibly allege any materially false,
misleading, or deceptive representations or omissions of material
fact. The district court acknowledged that whether a representation
or omission is false, misleading, or deceptive is often a question
of fact, but concluded that dismissal is warranted "where
allegations of fraud or deception are premised on an implausible
interpretation of a packaging statement."
The court concluded that it was not plausible that reasonable
consumers would interpret "biologically appropriate" to mean that
Champion dog food contained no heavy metals. Nor was it plausible
that a reasonable consumer interpret "fresh regional ingredients"
to mean that the dog food was made only with ingredients that are
fresh and regional. The court held that the phrase "nourish as
nature intended" was non-actionable puffery, "too vague to be
proved or disproved." With respect to "delivering nutrients
naturally," the court explained that, although the Plaintiffs had
reasonably defined the phrase as meaning that "the product either
is healthy or, at least, would not harm their health," the second
amended complaint did not allege that Champion's dog food was not
healthy or that it had harmed any dog's health. The Plaintiffs'
claims related to the presence or risk of BPA contamination were
dismissed for lack of standing. The omission-based,
breach-of-warranty, and unjust enrichment claims were also
dismissed.
II. Discussion
A. Standing to Pursue BPA-Related Claims
Because the second amended complaint did not allege that the
Plaintiffs had purchased dog food that contained BPA, the district
court dismissed the BPA-related claims for lack of standing. The
Plaintiffs did not address standing in their opening brief on
appeal, and their reply brief argues only that they have "standing
to assert claims related to heavy metals." They have not challenged
the district court's determination that they lacked standing to
claim that Champion misrepresented that "the dog food is BPA-free
or that Champion manufactures the dog food in a way that eliminates
any risk of BPA contamination,"
Accordingly, the Eighth Circuit does not reach the merits of their
arguments that the terms "biologically appropriate," "fresh
regional ingredients," "delivering nutrients naturally," and
"nourish as nature intended" could deceive reasonable consumers
because of the presence or risk of BPA in Champion's dog food.
B. Dismissal on the Merits
The Eighth Circuit reviews de novo the district court's grant of
Champion's motion to dismiss, accepting the second amended
complaint's well-pleaded allegations as true and drawing all
reasonable inferences in favor of the Plaintiffs. The second
amended complaint alleged violations of five Minnesota
consumer-protection statutes, as well as common-law claims for
fraudulent misrepresentation and fraudulent concealment.
The Plaintiffs argue that they plausibly alleged that "biologically
appropriate" could deceive a reasonable consumer, claiming that the
phrase indicates a complete absence of heavy metals like arsenic,
cadmium, mercury, and lead. They argue that they plausibly alleged
that a reasonable consumer could be deceived by Champion's
representations that its food is made with "fresh regional
ingredients." The Plaintiffs argue that the "fresh regional
ingredients" statements are rendered misleading by Champion's
failure to disclose that it uses frozen ingredients, regrinds,
refreshed ingredients, and ingredients that are past their
expiration date, as well as ingredients sourced from outside
Kentucky and internationally.
The Eighth Circuit concludes that the district court properly
dismissed the Plaintiffs' omission-based claims because "none of
Champion's packaging statements are deceptive or misleading, and
thus none require corrective disclosures." It rejects the
Plaintiffs' argument that Champion was required to disclose further
information because of its special knowledge of material facts to
which the Plaintiffs did not have access. This duty to disclose
based on special knowledge arises only in limited circumstances,
which are not present in the case. Finally, the Plaintiffs' breach
of warranty and unjust enrichment claims are premised on the same
allegations of deception that are insufficient to support the fraud
claims, and thus they fail for the same reasons.
III. Disposition
The judgment is affirmed.
A full-text copy of the Court's March 8, 2022 Order is available at
https://tinyurl.com/2pdjk8u6 from Leagle.com.
CINCINNATI CAPITAL: Lees Denied Leave to File 4th Amended Complaint
-------------------------------------------------------------------
Judge Sean F. Cox of the U.S. District Court for the Eastern
District of Michigan, Southern Division, denied
Plaintiffs/Counter-Defendants Owen and Heather Lee's Dec. 17,
2021-motion seeking leave to file what would be their fourth
complaint in the case, Owen V. Lee, et al.,
Plaintiffs/Counter-Defendants v. Cincinnati Capital Corporation,
Defendant/Counter-Plaintiff, Case No. 19-12133 (E.D. Mich.).
I. Background
Acting through counsel, on June 24, 2019, the Lees filed the
lawsuit against Defendant Cincinnati in state court. Filings in
that state-court case reflect that, during that same week, the Lees
received notice from a firm representing Cincinnati that
foreclosure proceedings had been commenced on their residential
property, stemming from the mortgage held by Cincinnati at issue in
the case. Cincinnati removed the case to federal court on July 22,
2019, based upon diversity jurisdiction.
On Aug. 19, 2019, the Lees filed an amended complaint that added
Joseph Engelhart (Cincinnati's CEO) as a defendant and also added
class-action allegations. It included the following claims: 1)
"Violation of the SMLA, Mich. Comp. Laws Ann. Section 493.51, et
seq." (Count I); 2) "Unjust Enrichment/Restitution" (Count II); 3)
"Violation of Truth-in-Lending Act, 15 U.S.C. Sections 1601, et
seq." (Count III); and 4) "Violation of the Real Estate Settlement
Procedures Act 12 U.S.C. Sections 2601, et seq." (Count IV). The
gravamen of their complaint is that Defendants violated Michigan's
Secondary Mortgage Loan Act, Mich. Comp. Laws Section 493.51 et
seq., "when they conducted business with the Lees and the Putative
Class despite being unlicensed under SMLA."
A few days later, on Aug. 23, 2019, the Lees filed an "Emergency
Motion For A Preliminary Injunction To Preserve The Status Quo And
Enjoin The Foreclosure And Sale Of Their Residential Property
Scheduled For September 12, 2019." The Court held a status
conference with the parties to discuss that motion. Later, a
Stipulated Order To Stay The Foreclosure And Sale Of Plaintiffs'
Residential Property Scheduled For September 1, 2019 Throughout
Pendency Of The Lawsuit Or Until Ordered Otherwise By The Court"
was issued.
Cincinnati and Engelhart each filed a Motion to Dismiss the Lees'
First Amended Complaint. After full briefing by the parties and a
hearing, the claims against Defendant Engelhart were dismissed by
the Court on Jan. 16, 2020, but the claims against Cincinnati
remained.
On Feb. 20, 2020, Cincinnati asserted the following counterclaims
against the Lees: 1) Breach of Contract (Count I); 2) Promissory
Estoppel (Count II); and 3) Unjust Enrichment (Count III). Those
counterclaims are based upon Cincinnati's allegation that the Lees
have failed to repay $525,00 that they borrowed through the home
equity line of credit ("HELOC") that was purchased by Cincinnati.
Cincinnati alleges that the "Lees initiated the action to escape
their repayment obligations and avoid the consequences of their
default under the HELOC which could include the loss of their 5,700
square foot, custom built, luxury home in Northville, Michigan."
Cincinnati alleges that, "according to current estimates, the Lees'
Property is valued at approximately $1.2 million." By virtue of its
counterclaims, Cincinnati "seeks the repayment of the full amount
of the Lees' outstanding HELOC balance including principal,
interest and fees, which continue to accrue."
On March 5, 2020, the Lees filed a motion seeking leave to file
another amended complaint, in order to amend their allegations
about the proposed class, after Cincinnati's counsel communicated
perceived pleading deficiencies to the Plaintiffs' counsel.
Cincinnati opposed that motion but the Court granted the Lees'
motion and permitted them to file another amended complaint.
On July 20, 2020, the Lees filed their Second Amended Class Action
Complaint -- their third complaint in the case -- asserting the
following claims against Cincinnati Capital: 1) "Violation of the
SMLA, Mich. Comp. Laws Ann. Section 493.51, et seq." (Count I); 2)
"Unjust Enrichment/Restitution" (Count II); 3) "Violation of
Truth-in-Lending Act, 15 U.S.C. Sections 1601, et seq." (Count
III); and 4) "Violation of the Real Estate Settlement Procedures
Act 12 U.S.C. Sections 2601, et seq." (Count IV).
When the parties could not reach agreement as to a scheduling
order, the Court had the parties brief the issues and each proposed
a scheduling order. Because neither party included a date for
further amendments of the pleadings, and in light of the fact that
the Lees had already filed three different complaints in the case,
the Court's July 20, 2020 Scheduling Order did not allow for any
further amendment of the pleadings.
Cincinnati filed a Motion for Judgment on the Pleadings,
challenging all claims asserted in the Lees' Second Amended Class
Action Complaint. On Feb. 16, 2021, the Court granted it in part
and denied it in part. The Court granted the motion to the extent
that it ruled that Cincinnati is entitled to judgment on the
pleadings with respect to Counts I, II, and IV. With respect to the
Lees' TILA claims asserted in Count III, the Court ruled that the
sole claim remaining is the Lees' claim under Section 1641(g) that
Cincinnati failed to notify the borrowers in writing of the
assignment of a mortgage loan from the creditor to the assignee.
Despite all of the references in their brief about wanting to file
another amended complaint if the Court were to conclude that any of
their claims were not sufficiently pleaded, the Lees did not file a
motion seeking leave to do so after the Court ruled.
Rather, on March 2, 2021, the Lees chose to file a Motion for
Reconsideration. And they made that choice even though, in
practice, "motions for reconsideration or to alter or amend a
judgment are rarely granted" because of the narrow purposes for
which such motions are intended. The Court allowed briefing on the
Lees' Motion for Reconsideration but advised the parties no hearing
on the motion would be held.
Meanwhile, soon after issuing its Opinion and Order dismissing most
of the Lees' claims, the Court scheduled a settlement conference as
several claims remained (i.e., part of the Lees' TILA count and all
of Cincinnati's counter-claims). The settlement conference was
reset a few times during the COVID-19 pandemic but the Court held
in-person settlement conferences beginning on Sept.r 30, 2021.
On Nov. 19, 2021, the Court issued a Second Scheduling Order, that
had been submitted by the parties. That order made no reference to
further amendments of the pleadings in this case, which by that
point was nearly two and a half years old.
The Court was ultimately unable to resolve the parties' claims
during the settlement conferences it held. On Dec. 2, 2021, the
Court denied the Lees' Motion for Reconsideration.
On Dec. 17, 2021, the Lees filed a motion seeking leave to file a
Third Amended Class Action Complaint -- which would be their fourth
complaint in the case. Cincinnati opposes the motion.
II. Analysis
The Lees already amended their complaint as of right, and were
later granted leave to amend again by the Court. Because Cincinnati
opposes their motion, under Fed. R.Civ. P. 15(a), they need leave
of the Court in order to amend again.
Judge Cox concludes that granting the Lees leave to file yet
another amended complaint in the case, under the circumstances,
would unduly prejudice Cincinnati. As Cincinnati explains, this
"prejudice arises not only from the pure delay, wasted time, and
costs incurred in successfully challenging the SAC (and defending
the Lees' summary judgment motion) only to return to the starting
line. Cincinnati's prejudice extends farther because of the unique
circumstances of this dispute." That is because the Lees have an
injunction that prevents Cincinnati from foreclosing on their home
during this litigation.
Cincinnati asserts that "delay serves the Lees' interests because
the longer they can stretch out the case, the longer they can
continue to live rent-free in their seven figure home without
paying for it." It also persuasively asserts that the injunction
impairs Cincinnati's ability to sell the loan, and/or the value of
it if it were to do so, during the pendency of the case. All of
this would result in undue prejudice to Cincinnati if the Court
were to allow the requested amendment.
III. Conclusion and Order
For the reasons he set forth, Judge Cox denied the Lees' Motion to
Amend. The parties will appear for a Status Conference on March 29,
2022, at 1:30 p.m., in order to discuss a revised Scheduling Order
as to the remaining claims in the action (i.e., the remaining
portion of the Lees' TILA count and all of the counterclaims
asserted by Cincinnati).
A full-text copy of the Court's March 8, 2022 Opinion & Order is
available at https://tinyurl.com/ybe9r57c from Leagle.com.
CINNABON FRANCHISOR: Hanyzkiewicz Files ADA Suit in E.D. New York
-----------------------------------------------------------------
A class action lawsuit has been filed against Cinnabon Franchisor
SPV, LLC. The case is styled as Marta Hanyzkiewicz, on behalf of
herself and all others similarly situated v. Cinnabon Franchisor
SPV, LLC, Case No. 1:22-cv-01360 (E.D.N.Y., March 11, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Cinnabon Franchisor -- https://cinnabonfranchising.com/ -- is an
American chain of baked goods stores and kiosks, normally found in
areas with high pedestrian traffic such as malls, airports and rest
stops.[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
CIRCLE K: Case Management, Scheduling Order Entered in Lebron
--------------------------------------------------------------
In the class action lawsuit captioned as LYDIA LEBRON v. CIRCLE K
STORES, INC., Case No. 6:22-cv-00060-DCI (M.D. Fla.), the Hon.
Judge Daniel C. Irick entered a case management and scheduling
order as follows
-- Mandatory Initial Disclosures March 11, 2022
-- Certificates of Interested Completed
Persons and Corporate
Disclosure Statements
Completed:
-- Motions to Add Parties or to April 8, 2022
Amend Pleadings:
-- Completion of Discovery and December 2, 2022
Deadline to Move for Class
Certification
-- Summary Judgment, Daubert, January 7, 2023
and Markman Motions:
-- Pre-Trial Meeting (In Person) April 3, 2023
Circle K is an American chain of convenience stores, owned by
multinational Alimentation Couche-Tard. Founded in 1951 in El Paso,
Texas.
A copy of the Court's order dated March 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3idmNqx at no extra charge.[CC]
CLARIVATE PLC: Faces ATRS Securities Suit Over Preferred Stock Drop
-------------------------------------------------------------------
ARKANSAS TEACHER RETIREMENT SYSTEM, individually and on behalf of
all others similarly situated v. CLARIVATE PLC, JERRE STEAD,RICHARD
HANKS, SHERYL VON BLUCHER, KOSTY GILLIS, BALAKRISHNAN S. IYER,
NICHOLAS MACKSEY, ANTHONY MUNK, JANE OKUN BOMBA, CHARLES J. NERAL,
RICHARD W. ROEDEL, CHRISTINE ARCHBOLD, CITIGROUP GLOBAL MARKETS
INC., BOFA SECURITIES, INC., RBC CAPITAL MARKETS, LLC, BARCLAYS
CAPITAL, INC., HSBC SECURITIES (USA) INC., J.P. MORGAN SECURITIES
LLC, and PRICEWATERHOUSECOOPERS LLP, Case No. 1:22-cv-01372
(E.D.N.Y., March 11, 2022) is a securities class action on behalf
of all persons and entities that purchased or otherwise acquired
Clarivate securities between February 26, 2021 and February 2, 2022
(the "Class Period"); and/or purchased or otherwise acquired
Clarivate 5.25% Series A Mandatory Convertible Preferred Shares
("Preferred Shares") pursuant and/or traceable to the Company's
Preferred Shares Offering conducted on or around June 9, 2021.
The Plaintiff asserts claims under Sections 11, 12(a)(2), and of
the Securities Act of (the "Securities Act"), and Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934 (the "Exchange
Act") and SEC Rule 10b-5 promulgated thereunder. The claims are
alleged against: (i) Clarivate; (ii) the Company's Executive
Chairman and Chief Executive Officer ("CEO") Jerre Stead ("Stead");
(iii) the Company's former Chief Financial Officer ("CFO") Richard
Hanks ("Hanks"); (iv) the current members of Clarivate's Board of
Directors and Clarivate's Chief Accounting Officer ("CAO") that
signed the Registration Statement for the Preferred Shares
Offering; (v) the underwriters of the Preferred Shares Offering;
and (vi) Clarivate's outside auditor.
Clarivate is an information services and analytics company. In May
2019, Clarivate became a publicly traded company after the special
purpose acquisition company ("SPAC") Churchill Capital Corp
purchased the Company. On October 1, 2020, Clarivate acquired 100%
of the assets, liabilities, and equity interests of CPA Global, an
intellectual property software and tech-enabled services company.
Throughout the Class Period, Clarivate consistently told investors
that its financial statements were accurate and that its internal
controls over financial reporting ("ICFR") and disclosure controls
and procedures ("DCP") were effective. For instance, on February
26, 2021, the first day of the Class Period, Clarivate filed its
annual report on Form 10-K with the SEC, reporting the Company's
financial results for the quarter and year ended December 31, 2020
(the "2020 10-K"), says the suit.
On or around June 9, 2021, Clarivate issued 12.5 million Preferred
Shares at $100.00 per share, raising total proceeds of $1.25
billion. In connection with the Preferred Shares Offering,
Clarivate provided the underwriters with the option to purchase an
additional 1.875 million Preferred Shares, which the underwriters
exercised in full, bringing the total proceeds raised by Clarivate
to more than $1.4 billion.
Allegedly, these statements were materially false and misleading.
In truth: (i) Clarivate's financial statements issued during the
Class Period, including the 2020 10-K/A and the quarterly report
for 1Q 2021 which the Company incorporated by reference into the
Preferred Shares Offering Materials, violated Generally Accepted
Accounting Principles ("GAAP").
On February 3, 2022, Clarivate announced that it had completed its
restatement, admitted it suffered from a material weakness in ICFR
and DCP in 2020 and the first three quarters of 2021, and
identified how the misstatements impacted the Company's prior
period financial statements.
Specifically, with respect to the 2020 10-K/A, Clarivate restated
the financial information for the year ended 2020, including that
the Company's income from operations of $2.8 million evaporated and
swung to a significant loss of $36 million, and Clarivate's net
loss plunged over 12% from $311.869 million to $350.625 million.
Likewise, the price of Clarivate preferred stock fell $9.30 per
share, or 12.9%, from $72.30 per share on February 2, 2022 to
$63.00 per share at the close of trading on February 3, 2022, the
suit added.
Plaintiff ATRS is a pension fund trust organized under the laws of
the State of Arkansas. Established in 1937, ATRS provides
retirement benefits for the employees of Arkansas's education
community and manages approximately $21 billion in assets.[BN]
The Plaintiff is represented by:
Javier Bleichmar, Esq.
Erin Woods, Esq.
Ross Shikowitz, Esq.
BLEICHMAR FONTI & AULD LLP
7 Times Square, 27th Floor
New York, NY 10036
Telephone: (212) 789-1340
Facsimile: (212) 205-3960
E-mail: jbleichmar@bfalaw.com
ewoods@bfalaw.com
rshikowitz@bfalaw.com
CLARIVATE PLC: Faces Boynton Beach Suit Over Share Price Drop
-------------------------------------------------------------
BOYNTON BEACH FIREFIGHTERS' PENSION FUND, individually and on
behalf of all others similarly situated v. CLARIVATE PLC, JERRE
STEAD, and RICHARD HANKS, Case No. 1:22-cv-01371 (E.D.N.Y., March
11, 2022) is a securities class action on behalf of all persons or
entities that purchased or otherwise acquired Clarivate ordinary
shares between November 10, 2020 and February 2, 2022, inclusive
(the "Class Period").
The claims asserted are alleged against Clarivate and certain of
the Company's current and former senior executives, and arise under
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934.
Clarivate is an analytics and information services company that
provides subscription and technology-based analytical tools and
services for the discovery, protection, and commercialization of
scientific research and innovations. This includes critical data,
information, workflow solutions, and domain expertise used by its
customers, which include universities, non-profits, funding
organizations, publishers, corporations, government organizations,
and law firms, across the lifecycle of innovation.
The Company, formerly known as the Intellectual Property and
Science assets of Thomson Reuters, was carved out and sold to
private equity sponsors Onex and Baring Private Equity Asia in
October 2016. Clarivate became a publicly traded company through a
merger with Churchill Capital Corp, a special purpose acquisition
company, or "SPAC." A SPAC is a shell or "blank check" company
formed for the sole purpose of raising money through a public
offering to eventually acquire one or more companies. On May 14,
2019, Clarivate completed its merger with Churchill, and
Clarivate's ordinary shares began trading on the New York Stock
Exchange (the "NYSE") under the symbol "CCC," which, on February 1,
2021, was changed to "CLVT."
On October 1, 2020, Clarivate acquired 100% of the assets,
liabilities, equity interests, and all outstanding shares of CPA
Global, an intellectual property software and technology-enabled
services company, in a cash and stock transaction valued at more
than $8 billion (the "CPA Global Transaction"). As part of the CPA
Global Transaction, Clarivate assumed an equity compensation plan
that covered a broad group of CPA Global employees. A portion of
the stock consideration Clarivate paid to acquire CPA Global would
be used to fund an employee benefit trust established for the CPA
Global equity plan.
According to the complaint, the truth began to emerge on December
27, 2021, when Clarivate disclosed that the Company's financial
statements for the year ended December 31, 2020, and the quarterly
periods ended March 31, June 30, and September 30, 2021 "should no
longer be relied upon because of an error in such financial
statements" and would need to be restated. In a Form 8-K filed with
the SEC that day, the Company revealed that the error related to
the treatment under GAAP of an equity plan included in the CPA
Global Transaction. Specifically, in connection with certain awards
made by CPA Global under its equity plan, Clarivate improperly
included $185 million in expenses as part of the acquisition
accounting for the CPA Global Transaction.
Later that day, shortly before the market closed, StreetInsider.com
published an article reporting that an analyst at Stifel had
lowered his price target on Clarivate from $32.00 per share to
$29.00 per share. The Stifel analyst also noted the suspicious
timing of the Company's announcement of its improper accounting in
connection with the CPA Global Transaction, which came less than
one month after Clarivate's prior CFO suddenly resigned, and
determined that the Company's accounting improprieties are likely
to impact Clarivate's previously reported earnings and cash flow.
As a result of these alleged disclosures, the price of Clarivate
shares declined by $1.86 per share, or more than 7.5%, over two
consecutive trading days, from a closing price of $24.74 per share
on December 23, 2021 to a closing price of $22.88 per share on
December 28, 2021.
Then, on February 3, 2022, before the market opened, Clarivate
revealed the extent and impact of the restatements. In particular,
the Company filed amendments to its annual report for the year
ended December 31, 2020, and its reports for the quarters ended
March 31, June 30, and September 30, 2021, revealing significant
decreases in previously reported income from operations, net
income, and earnings per share.
As a result of these disclosures, the price of Clarivate shares
declined by $2.90 per share, or approximately 16.4%, from a closing
price of $17.71 per share on February 2, 2022 to a closing price of
$14.81 per share on February 3, 2022. As a result of Defendants'
wrongful acts and omissions, and the precipitous declines in the
market value of the Company's shares alleged herein, Plaintiff and
other Class members have suffered significant losses and damages,
added the suit.
The Plaintiff is a defined benefit public pension fund based in
Boynton Beach, Florida, that provides retirement and related
benefits to current and retired firefighters of the City of Boynton
Beach.[BN]
The Plaintiff is represented by:
Hannah Ross, Esq.
Avi Josefson, Esq.
Scott R. Foglietta, Esq.
BERNSTEIN LITOWITZ BERGER
& GROSSMANN LLP
1251 Avenue of the Americas
New York, NY 10020
Telephone: (212) 554-1400
Facsimile: (212) 554-1444
E-mail: hannah@blbglaw.com
avi@blbglaw.com
scott.foglietta@blbglaw.com
- and -
Robert D. Klausner, Esq.
KLAUSNER KAUFMAN JENSEN & LEVINSON
7080 Northwest 4th Street
Plantation, FL 33315
Telephone: (954) 916-1202
E-mail: bob@robertdklausner.com
CLASSPASS INC: Fact Discovery in Tipsy Nail Suit Due August 29
---------------------------------------------------------------
In the class action lawsuit captioned as TIPSY NAIL CLUB LLC, on
behalf of itself and all others similarly situated, v. CLASSPASS
INC., FRITZ LANMAN, and PAYAL KADAKIA, Case No. 1:21-cv-08662-AT
(S.D.N.Y.), the Hon. Judge Analisa Torres entered an order that:
1. Fact discovery shall conclude by: Aug. 29, 2022
2. Expert discovery shall conclude by: Oct. 24, 2022
The Plaintiffs shall request leave to file any motion for class
certification before the close of fact discovery. The parties may
request leave to file summary judgment motions after the Court
resolves any motion for class certification. By March 9, 2022, the
parties shall submit an updated proposed case management plan and
scheduling order that conforms with the described schedule. The
next case management conference shall occur on September 15, 2022,
at 10:00 a.m., the Court says.
ClassPass offers recreational services.
A copy of the Court's order dated March 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3MWZHCE at no extra charge.[CC]
COASTLINE TITLE: Court Denies Bid for Summary Judgment in RLI Suit
------------------------------------------------------------------
In the case, RLI INSURANCE COMPANY, Plaintiff v. COASTLINE TITLE OF
PINELLAS, LLC, and ANTONI KRUK, Defendants, Case No.
8:20-cv-0786-KKM-CPT (M.D. Fla.), Judge Kathryn Kimball Mizelle of
the U.S. District Court for the Middle District of Florida, Tampa
Division, issued an order:
a. granting in part and denying in part RLI's Motion for
Summary Judgment; and
b. denying Coastline's Motion for Summary Judgment.
I. Introduction
Mr. Kruk bought some property in the summer of 2016 and Coastline
served as the closing agent on the sale. Afterward, Kruk filed a
class action lawsuit against Coastline, alleging that it wrongly
charged him $300 instead of the seller. Coastline in turn filed a
claim with its insurer, RLI, asking it to defend and indemnify
Coastline against Kruk's lawsuit. RLI denied the claim and filed
the declaratory judgment action against Coastline and Kruk, seeking
a declaration from this Court that RLI had no duty to defend or
indemnify Coastline. Both RLI and Coastline now move for summary
judgment.
II. Background
In July 2016, Kruk agreed to purchase real estate from Mark and
Julie Coleman. The purchase agreement required the Colemans to
designate the closing agent for the deal, and they chose Coastline.
The purchase agreement also obligated the Colemans to pay for the
owner's "title policy premium, title search, and closing services,"
collectively known as "Owner's Policy and Charges." The agreement
obligated Kruk to "pay the premium for his lender's policy and
charges for closing services related to the lender's policy,
endorsements and loan closing." Because Kruk agreed to pay with
cash, he had no lender to pay. Coastline nevertheless charged Kruk
a "Closing Services Fee" of $300.
Mr. Kruk, viewing this charge as a violation of his purchase
agreement, which he thought obligated the seller to bear sole
responsibility for the closing services fee, sued Coastline in
state court on Nov. 26, 2019 -- Antoni Kruk v. Coastline Title of
Pinellas, LLC, No. 19-007844-CI (Fla. Cir. Ct. Nov. 26, 2019). On
behalf of himself and others similarly situated, Kruk brought
claims for gross negligence, negligence, breach of fiduciary duty,
and unjust enrichment and alleged that he and the putative class
members were damaged by paying fees "they should not have paid."
Kruk based his claims on Coastline's alleged failure to adhere to
Kruk's purchase agreement. Both the negligence claims and the
breach of fiduciary duty claim alleged that Coastline breached its
duty of care to Kruk by failing to adhere to the contractual
requirements. And Kruk's unjust enrichment claim alleged that
Coastline received a benefit it was not entitled to because the fee
was not "authorized in the Contract."
After Kruk filed suit against Coastline, Coastline filed a claim
with its insurer, RLI, requesting RLI to defend it and to indemnify
it against any damages from Kruk's lawsuit. RLI denied the claim,
asserting that the insurance policy neither obligated it to defend
the lawsuit nor to indemnify Coastline. In issuing the policy, RLI
assumed the "duty to defend any Claim to which the insurance policy
applies." The policy defined a "Claim" as a "demand for money as
compensation for a Wrongful Act" or a lawsuit against the insured
that sought to hold the insured "responsible for a Wrongful Act."
And it defined a "Wrongful Act" as "any actual or alleged error,
omission or negligent act, committed solely in the rendering of or
failure to render Professional Services by an Insured." The policy
also covered "Claim Expenses," which were those "legal fees and
expenses incurred by the Insurer or by any attorney designated by
the Insurer to defend any Insured" as well as "all other fees or
costs resulting from the investigation, adjustment, defense and
appeal of a Claim."
Importantly, the policy excluded "Damages and Claim Expenses in
connection with any Claim in any way involving" Coastline profiting
in a way it was "not legally entitled." The policy also excluded
"salaries, wages, overhead or benefits expenses of any Insured."
On April 3, 2020, after it denied Coastline's claim for coverage,
RLI brought the action against both Kruk and Coastline seeking a
declaratory judgment that RLI was not responsible for defending or
indemnifying Coastline. RLI's first two and final two counts
alleged different reasons for why the insurance policy did not
require RLI to indemnify or defend Coastline. RLI's third count
alleged reasons only for why the policy did not obligate RLI to
indemnify Coastline. Coastline answered, claiming that RLI was
obligated to defend it and seeking to recover attorney's fees for
defending against RLI's declaratory judgment action.
Mr. Kruk moved to dismiss RLI's complaint because the request for a
declaratory judgment on RLI's duty to indemnify was not yet ripe
since the state court action remained ongoing. The Court agreed and
dismissed without prejudice RLI's request for a declaratory
judgment as to indemnification but permitted the case to proceed on
the claims for a declaratory judgment as to the duty to defend.
Although not specified in the order, the effect was dismissal of
RLI's third count, which alleged reasons for granting declaratory
judgment only as to RLI's duty to indemnify and dismissal of the
other claims insofar as they requested a declaratory judgment as to
indemnification.
On Dec. 13, 2021, RLI notified the Court that the underlying state
court action was dismissed with prejudice. As part of its notice,
RLI stipulated to the dismissal with prejudice of its claims
against Kruk, which the Court construed as a motion to dismiss
under Rule 41(a)(2) and granted. Both RLI and Coastline now move
for summary judgment on Counts I, II, IV, and V, the remaining
declaratory judgment claims concerning the duty to defend.
III. Analysis
Because the Court previously dismissed the claim seeking
declaratory judgment that the insurance policy did not require RLI
to indemnify Coastline, the only issue remaining is whether RLI was
required to defend Coastline in the state court action brought
against it by Kruk. RLI and Coastline both move for summary
judgment.
RLI argues that several exclusions in the policy, each aligning
with a particular count in the Amended Complaint, prevented Kruk's
state court complaint from triggering RLI's duty to defend.
Coastline contends that the exclusions did not apply, and the
policy required RLI to defend it.
A. The Court Has Jurisdiction
Judge Mizelle finds that the Court has jurisdiction over this
declaratory judgment action. RLI faces a substantial likelihood
that it will suffer an injury in the future -- specifically,
because RLI did not defend Coastline in state court and sued it in
federal court, Coastline incurred over $80,000 in defending the two
actions. The amount in dispute suggests that there is a
"substantial likelihood" that Coastline will sue RLI to recover its
costs.
B. RLI Had No Duty to Defend Coastline
In its Motion for Summary Judgment, RLI argues that it had no duty
to defend Coastline because Kruk's complaint alleged that Coastline
received remuneration it was not entitled to receive. Although RLI
requested the same declaratory judgment in all its counts, RLI
alleged this particular exclusion in Count II of its Amended
Complaint as the reason it had no duty to defend Coastline. Judge
Mizelle thus construes this argument as a motion for summary
judgment on Count II and, finding relief warranted, grants it.
Among other things, she holds that in the absence of a contractual
right by Coastline to take fees from Kruk, any money it took from
Kruk must have been remuneration to which Coastline lacked a legal
right. The underlying complaint does not allege conduct which
"fairly and potentially brings the action within policy coverage."
And, even if Kruk alleged only that Coastline taking the money was
negligent or that it constituted a breach of contract, he also
alleged that Coastline lacked authority to take the money from him.
This allegation renders his complaint against Coastline a claim "in
any way involving" Coastline receiving remuneration for which it
lacked legal entitlement.
C. The Court Declines Jurisdiction on the Remaining Claims
All of RLI's counts request the same relief: A declaratory judgment
that RLI had no duty to defend or indemnify Coastline in Kruk's
suit against it. The Court has discretion over whether to entertain
a declaratory judgment claim. Because the remaining counts are
duplicative of RLI's second count, which she grants judgment on,
Judge Mizelle declines to exercise jurisdiction over the remaining
claims and dismisses them.
All the remaining claims are duplicative. They each allege that
"RLI has no duty to defend Coastline in the underlying action" and
request the Court "find and declare that RLI does not have a duty
to defend Coastline in the underlying action." Because they all
request the same relief and she already concluded that the
requested relief -- a declaratory judgment that RLI had no duty to
defend—was warranted, Judge Mizelle declines to exercise
jurisdiction over the remaining claims. Accordingly, she dismisses
Counts I, IV, and
IV. Conclusion
Mr. Kruk sued Coastline, alleging he and others suffered losses
from Coastline obtaining remuneration from them it was not
authorized to obtain. RLI sued Coastline, requesting in four
separate counts a declaratory judgment that it had no duty to
defend Coastline. Both parties move for summary judgment and Judge
Mizelle grants RLI's motion as to its second count. But she
denies-in-part RLI's Motion insofar as RLI moves for summary
judgment on its other counts. Finally, because she grants judgment
for RLI, Judge Mizelle denies Coastline's Motion for Summary
Judgment.
Accordingly, Judge Mizelle granted-in-part RLI's Motion for Summary
Judgment. Specifically, she granted the motion insofar as it
requests judgment on Count II of RLI's Amended Complaint. She
denied-in-part RLI's Motion for Summary Judgment insofar as it
requests judgment on RLI's other counts.
Judge Mizelle dismissed Counts I, III, IV, and V of RLI's Amended
Complaint. She denied Coastline's Motion for Summary Judgment.
The Clerk is directed to terminate any pending motions and
deadlines, enter judgment in RLI's favor, and close the case. The
judgment will read: RLI Insurance Company did not owe Coastline
Title of Pinellas, LLC, a duty of defense in Antoni Kruk v.
Coastline Title of Pinellas, LLC, No. 19-007844-CI (Fla. Cir. Ct.
Nov. 26, 2019).
A full-text copy of the Court's March 8, 2022 Order is available at
https://tinyurl.com/3rx8wnhb from Leagle.com.
CONSUMER GUARDIAN: Hardwick FDCPA Suit Transferred to M.D. Pa.
--------------------------------------------------------------
The case styled as Linda Hardwick, on behalf of herself and all
others similarly situated v. Consumer Guardian Specialists, LLC
doing business as: Credit Shield, Sarah Young, Secure Account
Service, LLC, Case No. 2:20-cv-00060, was transferred from the U.S.
District Court for the Western District of Pennsylvania, to the
U.S. District Court for the Middle District of Pennsylvania on
March 11, 2022.
The District Court Clerk assigned Case No. 1:22-cv-00360-CCC to the
proceeding.
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Consumer Guardian Specialists, LLC doing business as: Creditshield
is a credit card insurance that offers coverage on your credit
card's total outstanding balance.[BN]
The Plaintiff is represented by:
Joshua P. Ward, Esq.
J.P. WARD & ASSOCIATES, LLC
201 South Highland Avenue, Suite 201
Pittsburgh, PA 15206
Phone: (412) 545-3015
Email: jward@jpward.com
The Defendants are represented by:
Lee Davis, Esq.
LAW OFFICES OF LEE W. DAVIS, ESQUIRE, L.L.C.
5239 Butler St., Ste 201
Pittsburgh, PA 15201
Phone: (412) 781-0525
Fax: (412) 781-0527
Email: lee@leewdavis.com
- and -
Robert A. Goldman, Esq.
LAW OFFICE OF ROBERT GOLDMAN
300 Mt. Lebanon Boulevard, Suite 209-D
Pittsburgh, PA 15234
Phone: (412) 531-6879
Email: goldmanjustice@gmail.com
CORECIVIC INC: Parties Seek Extension of Class Cert Bid Filing
--------------------------------------------------------------
In the class action lawsuit captioned as WILHEN HILL BARRIENTOS, et
al., v. CORECIVIC, INC., Case No. 4:18-cv-00070-CDL (M.D.Ga.), the
Parties ask the Court to enter an order granting their joint motion
to extend class certification and dispositive motions deadline.
-- The Parties respectfully move for an extension of the
deadline to file class certification and dispositive
motions from April 4, 2022, to June 17, 2022.
-- The Parties have worked diligently to complete fact and
expert discovery in this matter.
-- The Parties will have completed all expert discovery by the
March 8, 2022, deadline except for the deposition of
Plaintiffs’ expert Dr. Pablo Stewart.
-- To permit CoreCivic to take Dr. Stewart’s deposition and
provide the Parties adequate time thereafter, the Parties
have worked to reach an agreement regarding the deadline
for dispositive and class certification motions.
CoreCivic, formerly the Corrections Corporation of America, is a
company that owns and manages private prisons and detention centers
and operates others on a concession basis.
A copy of the Parties motion dated March 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3wb51N2 at no extra charge.[CC]
The Plaintiffs are represented by:
Caitlin J. Sandley, Esq.
Jaqueline Aranda Osorno, Esq.
SOUTHERN POVERTY LAW CENTER
400 Washington Ave.
Montgomery, AL 36104
Telephone: (334) 303-6822
Facsimile: (334) 956-8481
E-mail: cj.sandley@splcenter.org
jackie.aranda@splcenter.org
- and -
Meredith B. Stewart, Esq.
Rebecca Cassler, Esq.
Vidhi Bamzai, Esq.
SOUTHERN POVERTY LAW CENTER
201 Saint Charles Avenue, Suite 2000
New Orleans, LA 70170
Telephone: (504) 486-8982
Facsimile: (504) 486-8947
E-mail: meredith.stewart@splcenter.org
rebecca.cassler@splcenter.org
vidhi.bamzai@splcenter.org
- and -
Alan B. Howard, Esq.
John T. Dixon, Esq.
Emily B. Cooper, Esq.
Jessica L. Everett-Garcia, Esq.
John H. Gray, Esq.
Jessica Tseng Hasen, Esq.
PERKINS COIE LLP
1155 Avenue of the Americas, 22nd Floor
New York, NY 10036-2711
Telephone: (212) 262-6900
Facsimile: (212) 977-1649
E-mail: ahoward@perkinscoie.com
johndixon@perkinscoie.com
ecooper@perkinscoie.com
jhasen@perkinscoie.com
jeverettgarcia@perkinscoie.com
jhgray@perkinscoie.com
- and -
R. Andrew Free, Esq.
LAW OFFICE OF R. ANDREW FREE
P.O. Box 90568
Nashville, TN 37209
Telephone: (844) 321-3221x1
Facsimile: (615) 829-8959
E-mail: andrew@immigrantcivilrights.com
- and -
Azadeh Shahshahani, Esq.
Priyanka Bhatt, Esq
PROJECT SOUTH
9 Gammon Avenue SE
Atlanta, GA 30315
Telephone: (404) 622-0602
Facsimile: (404) 622-4137
E-mail: azadeh@projectsouth.org
priyanka@projectsouth.org
- and -
Daniel H. Charest, Esq.
BURNS CHAREST LLP
900 Jackson St., Suite 500
Dallas, TX 75202
Telephone: (469) 904-4550
Facsimile: (469) 444-5002
E-mail:dcharest@burnscharest.com
The Defendant is represented by:
Jacob B. Lee, Esq.
Daniel P. Struck, Esq.
Rachel Love, Esq.
Nicholas D. Acedo, Esq.
Ashlee B. Hesman, Esq.
STRUCK LOVE BOJANOWSKI & ACEDO, PLC
3100 West Ray Road, Suite 300
Chandler, AZ 85226
Telephone: (480) 420-1600
Facsimile: (480) 420-1695
E-mail: dstruck@strucklove.com
rlove@strucklove.com
nacedo@strucklove.com
ahesman@strucklove.com
jlee@strucklove.com
- and -
Jacob D. Massee, Esq.
David Bobo Mullens, Esq.
OLIVER MANER LLP
PO Box 10186
Savannah, GA 31412
Telephone: (912) 236-3311
Facsimile: (912) 236-8725
E-mail: jmassee@olivermaner.com
dbmullens@olivermaner.com
COSSIO INSURANCE: Gunten Suit Removed to D. South Carolina
----------------------------------------------------------
The case styled as Nicolas von Gunten, individually and on behalf
of others similarly situated v. Cossio Insurance Agency, PAL Sports
and Entertainment Group, Larry Cossio, Case No. 2022-CP-23-00546,
was removed from the Greenville County Court of Common Pleas, to
the U.S. District Court for the District of South Carolina on March
9, 2022.
The District Court Clerk assigned Case No. 6:22-cv-00780-TMC to the
proceeding.
The nature of suit is stated as Insurance for Declaratory
Judgment.
Cossio Insurance Agency -- https://www.cossioinsurance.com/ --
provides quality insurance for everyone that needs it and
specializes in insuring the amusement industry & other types of
businesses.[BN]
The Plaintiff is represented by:
Algernon Gibson Solomons , III, Esq.
SPEIGHTS AND SOLOMONS LLC
PO Box 685
100 Oak Street East
Hampton, SC 29924
Phone: (803) 943-4444
Fax: (803) 943-4599
Email: gsolomons@speightsandsolomons.com
- and -
Thomas S Tisdale, Jr., Esq.
Law Offices of Thomas S Tisdale LLC
4 North Atlantic Wharf, Suite 100
Charleston, SC 29401
Phone: (843) 823-4100
Fax: (843) 823-5251
Email: tst@chancellorsc.com
The Defendant is represented by:
Phillip Earl Reeves, Esq.
GALLIVAN WHITE AND BOYD
PO Box 10589
Greenville, SC 29603
Phone: (864) 271-9580
Fax: (864) 271-7502
Email: preeves@gwblawfirm.com
CRICKET WIRELESS: Postpichal Files Cross-Appeal in RICO Class Suit
------------------------------------------------------------------
Plaintiffs Jamie Postpichal, et al., filed a cross-appeal from a
court ruling entered in the lawsuit styled JAMIE POSTPICHAL, et
al., Plaintiffs v. CRICKET WIRELESS, LLC, Defendant, Case No.
3:19-cv-07270-WHA, in the U.S. District Court for the Northern
District of California, San Francisco.
The Plaintiffs allege that Cricket Wireless falsely advertised
"unlimited 4G/LTE" services throughout the United States, without
being able to deliver on its promise of faster cellular service.
They bring the action under various state false advertising laws as
well as the Racketeer Influenced and Corrupt Organization Act
("RICO"). They additionally allege negligence and unjust
enrichment.
The action has already seen prior proposed amendments to the
original complaint, as well as numerous discovery disputes. At a
status conference held November 4, 2020, the parties disputed a
demand to depose current and proposed plaintiffs regarding their
status as Cricket customers and recruitment strategies used by the
Plaintiffs' counsel.
On Aug. 20, 2021, Judge William Alsup of the U.S. District Court
for the Northern District of California denied Defendant's motions
to exclude and disqualify the Plaintiffs' experts and oppose class
certification and granted the Plaintiffs' motion to certify a
class.
On September 2, 2021, the Defendants filed a motion to compel
arbitration of class members which the Court denied on January 20,
2022 through an Order signed by Judge William Alsup.
The Defendants sought a review of this order in the appellate case
captioned as Jamie Postpichal, et al. v. Cricket Wireless, LLC,
Case No. 22-15253, in the United States Court of Appeals for the
Ninth Circuit, filed on Feb. 22, 2022.
The Plaintiffs now files this cross-appeal asking the Court to
review the arbitration order.
The appellate case is captioned as Jamie Postpichal, et al. v.
Cricket Wireless, LLC, Case No. 22-15335, in the United States
Court of Appeals for the Ninth Circuit, filed on March 7, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellants Ursula Freitas and Jamie Postpichal Mediation
Questionnaire was due on March 14, 2022;
-- First cross appeal brief is due on May 31, 2022 for Cricket
Wireless, LLC;
-- Second brief on cross appeal is due on July 1, 2022 for
Ursula Freitas and Jamie Postpichal;
-- Third brief on cross appeal is due on August 1, 2022 for
Cricket Wireless, LLC; and
-- Optional cross appeal Reply brief for Ursula Freitas and
Jamie Postpichal is due within 21 days of service of Third brief on
cross appeal.[BN]
Plaintiffs-Appellants JAMIE POSTPICHAL, individually, and URSULA
FREITAS, on behalf of herself and others similarly situated, are
represented by:
Jennifer D. Bennett, Esq.
Neil Sawhney, Esq.
GUPTA WESSLER
100 Pine Street, Suite 1250
San Francisco, CA 94111
Telephone: (415) 573-0336
- and -
Tyler Hudson, Esq.
WAGSTAFF & CARTMELL, LLP
4740 Grand Avenue, Suite 300
Kansas City, MO 64112
Telephone: (816) 701-1177
- and -
Jonathan Taylor, Esq.
Matthew W.H. Wessler, Esq.
GUPTA WESSLER, PLLC
2001 K Street, NW, Suite 850 N
Washington, DC 20006
Telephone: (202) 888-7566
Defendant-Appellee CRICKET WIRELESS, LLC is represented by:
David Lloyd Anderson, Esq.
Sheila Anil Armbrust, Esq.
David Ryan Carpenter, Esq.
Nicole Marie Ryan, Esq.
SIDLEY AUSTIN, LLP
555 California Street, Suite 2000
San Francisco, CA 94104-1715
Telephone: (415) 772-1200
- and -
Daniel Jones, Esq.
Archis Ashok Parasharami, Esq.
Kevin Ranlett, Esq.
MAYER BROWN LLP
1999 K Street, NW
Washington, DC 20006
Telephone: (202) 263-3860
E-mail: djones@mayerbrown.com
aparasharami@mayerbrown.com
- and -
Kristin Madigan, Esq.
CROWELL & MORING, LLP
3 Embarcadero Center, 26th Floor
San Francisco, CA 94111
Telephone: (415) 365-7233
CVS PHARMACY: Branch Sues Over Unpaid Minimum, Overtime Wages
-------------------------------------------------------------
DAWN BRANCH v. CVS PHARMACY, INC., Case No. 2:22-cv-00641 (E.D.
La., March 11, 2022) is brought on behalf of the Plaintiff and all
others similarly situated alleging that CVS unlawfully failed to
pay minimum and overtime wages under the Fair Labor Standards Act.
Ms. Branch is a 49-year-old woman living with her husband and
children in Bush, Louisiana. Ms. Branch is a pharmacist licensed to
practice in Louisiana.
CVS is an American retail corporation. A subsidiary of CVS Health,
it is headquartered in Woonsocket, Rhode Island. It was also known
as, and originally named, the Consumer Value Store and was founded
in Lowell, Massachusetts, in 1963.[BN]
The Plaintiff is represented by:
Kevin S. Vogeltanz, Esq.
Alec Szczechowski, Esq.
THE LAW OFFICE OF KEVIN S. VOGELTANZ, LLC
823 Carroll Street, Suite A
Mandeville, LA 70448
Telephone: (504) 275-5149
Facsimile: (504) 910-1704
E-mail: vogeltanz@gmail.com
DAVEK ACCESSORIES: Nisbett Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Davek Accessories
Inc. The case is styled as Kareem Nisbett, individually and on
behalf of all other persons similarly situated v. Davek Accessories
Inc. doing business as: Davek, Case No. 1:22-cv-02015 (S.D.N.Y.,
March 10, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Davek Accessories -- https://davekny.com/ -- produces uniquely
strong and technically superior umbrellas and accessories designed
to endure over time.[BN]
The Plaintiff is represented by:
Douglas Brian Lipsky, Esq.
LIPSKY LOWE LLP
630 Third Avenue Fifth Floor
New York, NY 10017
Phone: (212) 392-4772
Fax: (212) 444-1030
Email: doug@lipskylowe.com
DISCOVERY COMMUNICATIONS: Carter Files Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Discovery
Communications, LLC. The case is styled as Crystal Carter, Susan
Cifelli, Letitia Taylor, individually and on behalf of all others
similarly situated v. Discovery Communications, LLC, Case No.
1:22-cv-02031-PGG (S.D.N.Y., March 11, 2022).
The nature of suit is stated as Other Statutory Actions for
Wrongful Disclosure of Video Tape Rental or Sales Records.
Discovery -- https://corporate.discovery.com/ -- is an American
multinational mass media factual television conglomerate based in
New York City.[BN]
The Plaintiffs are represented by:
Joshua David Arisohn, Esq.
BURSOR & FISHER P.A.
888 Seventh Avenue
New York, NY 10019
Phone: (646) 837-7150
Fax: (212) 989-9163
Email: jarisohn@bursor.com
DUNNE MANNING: Williams Files FCRA Suit in E.D. Pennsylvania
------------------------------------------------------------
A class action lawsuit has been filed against Dunne Manning Inc.,
et al. The case is styled as Jamil Williams, on behalf of himself
and others similarly situated v. Dunne Manning Inc., Dunne Manning
Stores, LLC, Case No. 5:22-cv-00908-JLS (E.D. Pa., March 9, 2022).
The lawsuit is brought over alleged violation of the Fair Credit
Reporting Act.
Dunne Manning Inc. -- https://dunnemanning.peoplematter.jobs/ --
operates fuel filling station. The Company provides gas and
petrochemical products, as well as offers car washing
services.[BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
LEE LITIGATION GROUP, PLLC
148 west 24th Street, 8th Floor
New York, NY 10011
Phone: (212) 465-1188
Email: cklee@leelitigation.com
EAST COAST FLIGHTCRAFT: Crumwell Files ADA Suit in S.D. New York
----------------------------------------------------------------
A class action lawsuit has been filed against East Coast
Flightcraft Inc. The case is styled as Denise Crumwell, on behalf
of herself and all other persons similarly situated v. East Coast
Flightcraft Inc., Case No. 1:22-cv-02053 (S.D.N.Y., March 11,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
East Coast Flightcraft -- https://www.eastcoastflightcraft.com/ --
is one of the top dealers in the world for Malibu, Cobalt, Axis
Sales.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: nyjg@aol.com
michael@gottlieb.legal
FIVE GUYS: Amended Class Action Scheduling Order Entered in Lusk
----------------------------------------------------------------
In the class action lawsuit captioned as JEREMY R. LUSK, on behalf
of himself, all others similarly situated, and the general public,
v. Five Guys Enterprises LLC, et al., Case No.
1:17-cv-00762-AWI-EPG (E.D. Cal.), the Court entered an amended
class action scheduling order as follows:
-- Expert Disclosures July 29, 2022
Re: Class Certification:
-- Rebuttal Expert Disclosures Aug. 26, 2022
Re: Class Certification:
-- Expert and Non-Expert Sept. 30, 2022
Discovery Cutoff
Re: Class Certification:
-- Motion for Class Oct. 27, 2022
Certification:
-- Opposition to Class Dec. 14, 2022
Certification:
-- Reply Re: Class Feb. 3, 2023
Certification:
Five Guys Enterprises LLC an American fast casual restaurant chain
focused on hamburgers, hot dogs, and French fries, and
headquartered in Lorton, Virginia, part of Fairfax County.
A copy of the Court's order dated March 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3CNqLzH at no extra charge.[CC]
FLEETCOR TECH: Marion Files Bid for Conditional Certification
-------------------------------------------------------------
In the class action lawsuit captioned as JAAN MARION, Individually
and On behalf of all others similarly situated, v. FLEETCOR
TECHNOLOGIES OPERATING COMPANY, LLC, and FLEETCOR TECHNOLOGIES
INC., Case No. 1:21-cv-04936-MHC (N.D. Ga.), the Plaintiff asks the
Court to enter an order:
1. conditionally certifying this case to proceed as an Fair
Labor Standards Act (FLSA) Section 216b collective action;
2. requiring the Defendants to produce the names, US mail
addresses, email addresses, last four numbers of the
Social Security Numbers, and telephone numbers of each
putative class member; and
3. authorizing the Plaintiff Marion and his counsel to send
Notice of this action and the attached consent to join
form to all persons currently or formerly employed as
Inside Sales Representatives (ISR) working from or
reporting to the Corporate office located in Atlanta or
Norcross Georgia and Nashville Tennessee, and who were
employed by the Defendants anytime within the preceding
three years to the present.
FleetCor provides payment solutions. The Company offers fuel,
tolls, and lodging payment products including cards, RFID tags, and
vouchers. FleetCor Technologies Operating serves customers in the
United States.
The Plaintiff alleges that the Defendants violated the Fair Labor
Standards Act (FLSA) by willfully failing to pay him and all ISRs
working under the job titles of Account Manager, Regional Account
Manager, Territory Manager, Account Executive, Sales Consultant,
Sales Representative, Sales Associate, Outbound Sales
Representative, Elite Sales Rep, Telephone Sales Representative,
Business Developer, ISR -- Outbound III, and all variations of
these titles or positions, overtime compensation for all hours
worked over 40 in each and every work week, and further willfully
failed to properly track and record their work hours in violation
of the FLSA.
The named Plaintiff, Jaan Marion (Marion), is joined by 16 current
and former ISR who have already opted in (Opt ins) to this
collective action and who worked from, or were hired from and who
reported to the Defendants' Corporate offices located in Atlanta
and Norcross, Georgia and Nashville, Tennessee.
After the onset of the Covid Pandemic, Defendants closed the office
and had ISR working from their homes remotely, but their work was
still directed by and from the Defendants' Corporate offices in
Georgia and Tennessee. Marion and the other Opt in Plaintiff ISR
had the same positions and standardized, routine job requirements:
soliciting businesses by emails and phone calls and attempting to
sell Defendants' fuel cards to other businesses.
A copy of the Plaintiff's motion to certify class dated March 3,
2022 is available from PacerMonitor.com at https://bit.ly/3wg9DBC
at no extra charge.[CC]
The Plaintiff is represented by:
Mitchell L. Feldman, Esq.
FELDMAN LEGAL GROUP
6916 W. Linebaugh Ave., No. 101
Tampa, FL 33625
Telephone: (813) 639-9366
Facsimile: (813) 639-9376
E-mail: mfeldman@flandgatrialattorneys.com
mail@feldmanlegal.us
GENERAL MOTORS: Chapman Suit Seeks to Certify Classes
-----------------------------------------------------
In the class action lawsuit captioned as MARK D. CHAPMAN, et al.,
v. GENERAL MOTORS LLC, Case No. 2:19-cv-12333-TGB-DRG (E.D. Mich.),
the Plaintiffs ask the Court to enter an order granting class
certification pursuant to Fed. R. Civ. P. 23(a)(1)-(4) and (b)(3)
on behalf of themselves and all others similarly situated, and for
the appointment of Counsel and Class Representatives pursuant to
Fed. R. Civ. P. 23(g).
Specifically, Plaintiffs move for certification of the classes
under Rule 23(b)(3) with respect to "Class Vehicles," which are
defined as "model year 2011-2016 Duramax diesel 6.6L V8 LML engine
trucks purchased in the United States, manufactured by GM and
marketed as the Chevrolet Silverado or GMC Sierra."
The Plaintiffs move for certification of the following multi-state
liability class:
-- Multi-State Class. For breach of implied warranty of
merchantability only, all persons or entities who purchased
one or more Class Vehicles in Alaska, Arkansas, California,
Colorado, Delaware, Hawaii, Indiana, Kansas, Louisiana,
Maine, Maryland, Massachusetts, Minnesota, Mississippi,
Missouri, Montana, Nebraska, Nevada, New Hampshire, New
Jersey, New Mexico, North Carolina, North Dakota, Oklahoma,
Oregon, Pennsylvania, Rhode Island, South Carolina, South
Dakota, Texas, Utah, Vermont, Washington, West Virginia,
and Wyoming.
The Plaintiffs further move for certification of the
following single-state liability classes with respect to
the listed claims:
1. Alabama Class
All persons or entities who purchased one or more of the
Class Vehicles in Alabama. The Plaintiffs seek
certification of the Alabama Class for a claim of
enrichment.
2. California Class
All persons or entities who purchased one or more of
the Class Vehicles in California. The Plaintiffs seek
certification of the California Class for violation of
the Consumer Legal Remedies Act, Cal. Civ. Code section
1750, and of the Unfair Competition Law, Cal. Bus. &
Prof. Code section 17200.
3. Florida Class
All persons or entities who purchased one or more of the
Class Vehicles in Florida. Plaintiffs seek certification
of the Florida Class for a claim of unjust enrichment
and for violation of the Florida Deceptive and Unfair
Trade Practices Act., Fla. Stat. section 510.201, et
seq.
4. Illinois Class
All persons or entities who purchased one or more of the
Class Vehicles in Illinois. Plaintiffs seek
certification of the Illinois Class for a claim of
unjust enrichment and for violation of the Illinois
Consumer Fraud Act and Deceptive Business Practices Act,
815 ILCS 505/1, et seq.
5. Iowa Class
All persons or entities who purchased one or more of the
Class Vehicles in Iowa. Plaintiffs seek certification of
the Iowa Class for violation of Iowa’s Private Right of
Action for Consumer Frauds Act, Iowa Code Ann. section
714H.1, et seq.
6. Michigan Class
All persons or entities who purchased one or more of the
Class Vehicles in Michigan. The Plaintiffs seek
certification of the Michigan Class for a claim of
unjust enrichment.
7. New York Class
All persons or entities who purchased one or more of the
Class Vehicles in New York. The Plaintiffs seek
certification of the New York Class for a claim of
unjust enrichment and for violation of N.Y. Gen. Bus.
Law section 349(a).
8. Pennsylvania Class
All persons or entities who purchased one or more of the
Class Vehicles in Pennsylvania. The Plaintiffs seek
certification of the Pennsylvania Class for a claim of
unjust enrichment.
9. Texas Class
All persons or entities who purchased one or more of the
Class Vehicles in Texas. The Plaintiffs seek
certification of the Texas Class for violation of the
Texas Deceptive Trade Practices Act (Tex. Bus. & Com.
Code section 17.46, et seq.) and for a claim of unjust
enrichment.
The Plaintiffs further propose two mutually exclusive
damage models that apply across all ten liability classes:
a cost of repair model (to compensate truck owners who paid
out of pocket for a CP4 repair that was not covered under
warranty), and an overpayment model (to compensate the
remaining truck owners who overpaid for their trucks at the
time of purchase).
The Plaintiffs further move for appointment of the
following Plaintiffs as Class Representatives for the
Multi-State Class: Stacy Wade Sizelove, Calvin Smith, and
Kevin Allen Lawson (California Plaintiffs); William
Fortmayer and Ryan Begneaud (Louisiana Plaintiffs); Clay
Kincheloe (Montana Plaintiff); Bruce Dawson and John
Tamburini (New Jersey Plaintiffs); Terri Egleberry
(Oklahoma Plaintiff); John Cappiello and Bryan Joyce
(Pennsylvania Plaintiffs); and Troy Bowen, Homero Medina,
and Jacqueline Bargstedt (Texas Plaintiffs).
The Plaintiffs also move for appointment of the following
Plaintiffs as Class Representatives for the single-state
Classes: Michael John McCormick (for the Alabama Class);
Stacy Wade Sizelove, Calvin Smith, and Kevin Allen Lawson
(for the California Class); Holly Reasor (for the Florida
Class); Nathan Howton and Trisha Alliss (for the Illinois
Class); William McDuffie (for the Iowa Class); Arnold
Recchia (for the Michigan Class); Mark D. Chapman (for the
New York Class); John Cappiello and Bryan Joyce (for the
Pennsylvania Class); and Troy Bowen, Homero Medina, and
Jacqueline Bargstedt (for the Texas Class).
The Plaintiffs also move for appointment of Hagens Berman
Sobol Shapiro LLP, Hilliard Martinez Gonzalez LLP, and The
Miller Law Firm P.C. as Class Counsel for all Classes,
under Fed. R. Civ. P. 23(g).
This case is well suited to class certification. All Class Vehicles
contain a defective CP4 pump, all Class members incurred damages as
a result, and GM did not reveal the existence of the defect to any
consumer. These allegations can be resolved on a class-wide basis
using common proof. Plaintiffs' Motion should be granted, the
lawsuit says.
A copy of the Plaintiffs' motion to certify class dated March 2,
2022 is available from PacerMonitor.com at https://bit.ly/3wcEX42
at no extra charge.[CC]
The Plaintiffs are represented by:
Steve W. Berman, Esq.
Jerrod C. Patterson, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1301 Second Avenue, Suite 2000
Seattle, WA 98101
Telephone: (206) 623-7292
Facsimile: (206) 623-0594
E-mail: steve@hbsslaw.com
jerrodp@hbsslaw.com
sean@hbsslaw.com
- and -
Robert C. Hilliard, Esq.
Lauren Akers, Esq.
Bonnie J. Rickert, Esq.
HILLIARD MARTINEZ GONZALES LLP
719 S. Shoreline Blvd.
Corpus Christi, TX 78401
Telephone: (361) 882-1612
E-mail: bobh@hmglawfirm.com
lakers@hmglawfirm.com
brickert@hmglawfirm.com
- and -
E. Powell Miller, Esq.
Sharon S. Almonrode, Esq.
Dennis A. Lienhardt, Jr., Esq.
THE MILLER LAW FIRM, P.C.
950 W. University Drive, Suite 300
Rochester, MI 48307
Telephone: (248) 841-2200
Facsimile: (248) 652-2852
E-mail: epm@millerlawpc.com
ssa@millerlawpc.com
dal@millerlawpc.com
- and -
Russell D. Paul, Esq.
Jeffrey L. Osterwise, Esq.
Amey J. Park, Esq.
Abigail J. Gertner, Esq.
BERGER MONTAGUE PC
1818 Market Street Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-3000
E-mail: rpaul@bm.net
josterwise@bm.net
apark@bm.net
agertner@bm.net
- and -
Sidney D. Torres, III, Esq.
Roberta L. Burns, Esq.
Beau F. Camel, Esq.
Valerie L. Rodrigue, Esq.
LAW OFFICES OF SIDNEY D. TORRES, III,
A PROFESSIONAL LAW CORPORATION
8301 West Judge Perez Drive, Suite 303
Chalmette, LA 70043
Telephone: (504) 271-8422
Facsimile: (504) 271-1961
E-mail: storres@torres-law.com
rburns@torres-law.com
bcamel@torres-law.com
vrodrigue@torres-law.com
- and -
Eric H. Gibbs, Esq.
David Stein, Esq.
Steven Lopez, Esq.
GIBBS LAW GROUP LLP
505 14th Street, Suite 1110
Oakland, CA 94612
E-mail: ehg@classlawgroup.com
sal@classlawgroup.com
GEORGE WASHINGTON: Dismissal of Shaffer Suit Affirmed in Part
-------------------------------------------------------------
In the cases, MARK SHAFFER, INDIVIDUALLY AND ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED, ET AL., Appellants v. GEORGE WASHINGTON
UNIVERSITY AND BOARD OF TRUSTEES OF GEORGE WASHINGTON UNIVERSITY,
Appellees, MAAZ QURESHI, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED, ET AL., Appellants v. AMERICAN UNIVERSITY,
Appellee, Case Nos. 21-7040, 21-7064 (D.C. App.), the U.S. Court of
Appeals for the District of Columbia Circuit affirmed in part and
reversed in part the District Courts' judgments granting the
Defendants' motion to dismiss the actions for failure to state a
claim, and remanded for further proceedings consistent with its
Opinion.
I. Introduction
George Washington University and American University are
institutions of higher learning located in Washington, D.C. GW
offers approximately 50 on-campus doctorate programs and ten online
doctorate programs. It offers 75 on-campus undergraduate programs
and nine online undergraduate programs. GW charges significantly
higher rates for its on-campus programs than for the online
counterparts.
American also offers a variety of on-campus degree programs. It
does not offer undergraduate online degrees, although it does offer
some undergraduate online courses. American's Online Learning
programs are "listed independently on a separate web page, where
separate policies and cost information depend on the individual
online program."
The Plaintiffs paid all tuition and fees required for enrollment in
on-campus instruction and experiences for the spring 2020 semester.
On March 11, 2020, the World Health Organization declared COVID-19
a pandemic; travel and assembly restrictions in the United States
quickly followed. In response to the pandemic, the Universities
shifted all on-campus classes to online learning in mid-March 2020
and held classes virtually for the rest of the semester. The
Universities also suspended events and activities. Neither
University offered prorated refunds of spring 2020 tuition or of
the fees at issue in these actions.
II. Background
The two cases that the Court of Appeals considers in the appeal,
like many others that have been litigated across the country, are
by-products of the COVID-19 pandemic.
In March 2020, America faced a rapidly-evolving crisis. For
colleges and universities, the challenges were acute. Dormitories,
classrooms, research laboratories, libraries, and arenas risked
spreading COVID-19, endangering students, faculty, staff, and
surrounding communities. To safeguard public health and to comply
with shelter-in-place orders, higher education institutions pivoted
in the moment. They physically closed campuses in large part, while
searching for and inventing solutions to allow them to continue to
serve their students in unpredictable and unprecedented times. For
colleges and universities -- like so many other sectors of society
-- virtual platforms were part of the answer. Online programs like
Citrix, Microsoft Teams, and Zoom meant students could complete the
last portion of their spring semester courses without
interruption.
These colleges and universities contend that their rapid transition
to online educational services, in place of in-person educational
activities was no small feat. And as a result of these efforts, the
class of 2020 graduated on time at institutions around the country.
Many students and their parents see the matter very differently.
For example, the Appellants in one of the cases on appeal contend
that: The COVID-19 global pandemic disrupted the daily lives of
nearly all Americans Students who paid tens of thousands of dollars
in tuition and fees to get an in-person educational experience,
including all of the services, opportunities, and activities that
come therewith, had that in-person experience ripped away. Students
could have enrolled in one of the country's many online learning
institutions -- at a far cheaper cost -- but opted to pay a premium
for an in-person educational experience. Many students undertook
significant debt to make these tuition and fee payments.
Nonetheless, the universities have refused to refund a penny of the
tuition students paid for an in-person educational experience.
The Appellees in the cases before the Court, American and GW
(together, "Universities" or "Defendants"), responded to the
COVID-19 pandemic, just as did many other schools, by transitioning
from in-person to online learning programs and largely shutting
down campus activities. In two separate actions, students and
parents (collectively, "Plaintiffs") filed complaints in the
District Court claiming that the Universities violated contractual
commitments to their students when they transitioned to online
educational activities and declined to refund any portion of their
students' tuition payments and fees. The Plaintiffs also alleged,
in the alternative, that the transitions to online learning
unjustly enriched the Universities.
The Defendants moved to dismiss the actions for failure to state a
claim, and the District Courts granted their motions.
The Plaintiffs now appeal.
III. Discussion & Order
Applying District of Columbia law to the novel and challenging
issues that these cases present, the Court of Appeals affirmed in
part and reversed in part the judgments of the District Courts and
remanded the cases for further proceedings.
First, the Court of Appeals affirmed the District Courts'
dismissals of the Plaintiffs' claims that the Universities breached
express contracts promising in-person educational instruction,
activities, and services in exchange for tuition and fees. The
materials cited by the Plaintiffs do not support these claims.
However, the Court of Appeals holds that the Plaintiffs' complaints
plausibly allege that the Universities breached implied-in-fact
contracts for in-person education. The Plaintiffs' factual
allegations, combined with the reasonable inferences drawn from
them, suffice to support their claims that the Universities
promised to provide in-person instruction in exchange for
Plaintiffs' tuition payments.
The Plaintiffs also plausibly allege that the Universities
impliedly promised to provide on-campus activities and services in
exchange for some of the student fees at issue, the Court of
Appeals opines. The Shaffer Plaintiffs state a claim for breach of
contract as to the additional course fees, but not as to the
student association fee. The Qureshi Plaintiffs state a claim for
breach of contract as to the sports center fee, but not as to the
activity fee, technology fee, or Metro U-Pass fee.
The Court of Appeals therefore reversed the District Courts'
dismissals of the Plaintiffs' implied-in-fact contract claims with
respect to tuition and some -- but not all -- of the fees at issue.
It noted that the Universities will likely have compelling
arguments to offer that the pandemic and resulting government
shutdown orders discharged their duties to perform these alleged
promises. However, because the Universities have not raised any
such defense before the Court, the Court of Appeals left the issue
to the District Courts to resolve in the first instance.
Furthermore, the Court of Appeals reversed the District Courts'
dismissals of the Plaintiffs' unjust enrichment claims. The
Plaintiffs were free to raise unjust enrichment claims in the
alternative to their breach-of-contract claims. The complaints
contain sufficient plausible factual allegations to reasonably
infer that the Plaintiffs provided the benefit of tuition and
certain fees under a contract that does not cover the issue in
dispute, or is invalid, subject to avoidance, or otherwise
ineffective. This inference does not affect the plausibility of the
breach-of-contract claims because the Plaintiffs are allowed to
advance inconsistent and alternative theories of recovery. The
District Courts must first determine the contours of any promises
governing in-person educational instruction and activities, the
Universities' duties to perform any such promises, and the
Universities' rights (if any) to retain already-paid tuition and
fees even if on-campus instruction were cancelled. After these
matters have been resolved, the Plaintiffs may then be in a
position to pursue their claims for unjust enrichment.
Next, the Court of Appeals affirmed the District Court's dismissal
of the Qureshi Plaintiffs' conversion claim. This claim fails
because the Plaintiffs do not plausibly allege a possessory
interest in a specific, identifiable fund of money.
Finally, the Court of Appeals reversed and remanded the District
Court's dismissal of the Qureshi Plaintiffs' D.C. Consumer
Protection Procedures Act claim, as the trial court's analysis
turned on its mistaken conclusion that the Plaintiffs failed to
plausibly allege that the University promised in-person instruction
and activities in exchange for tuition and certain fees.
A full-text copy of the Court's March 8, 2022 Opinion is available
at https://tinyurl.com/56nbna7a from Leagle.com.
Daniel J. Kurowski -- dank@hbsslaw.com -- argued the cause for
Appellants Mark Shaffer, et al. With him on the briefs were Steve
W. Berman -- steve@hbsslaw.com -- Glenn Ivey, and Andrew S.
Levetown.
Alan Schoenfeld argued the cause for the Appellees. With him on the
brief were Jamie Gorelick , Bruce M. Berman --
bruce.berman@wilmerhale.com -- Susan Pelletier, and Swapna Maruri.
Jessica L. Ellsworth -- jessica.ellsworth@hoganlovells.com -- and
Nathaniel A. G. Zelinsky were on the brief for Amici Curiae
American Council on Education and 18 Other Higher Education
Associations in support of the Appellees.
Roy T. Willey argued the cause for appellants Maaz Qureshi, et al.
With him on the briefs was Curtis A. Boykin.
Alan Schoenfeld -- ALAN.SCHOENFELD@WILMERHALE.COM -- argued the
cause for appellee. With him on the brief were Bruce M. Berman and
Susan Pelletier.
Jessica L. Ellsworth and Nathaniel A. G. Zelinsky were on the brief
for Amici Curiae American Council on Education and 18 Other Higher
Education Associations in support of appellee.
HEALTH IQ INSURANCE: Norris Sues Over Unsolicited Calls
-------------------------------------------------------
Linda J. Norris, individually, and behalf of all others similarly
situated v. HEALTH IQ INSURANCE SERVICES, INC. and JOHN DOES 1-10,
Case No. 5:22-cv-01236-NC (N.D. Cal., Feb. 28, 2022), is brought to
seek redress for the Defendant's violations of the Telephone
Consumer Protection Act.
The Defendant utilizes third-party vendors (John Does 1-10) to
market its insurance products. The Defendant's vendors are
essential to the success of its telemarketing campaigns. The
Defendant's ability to generate revenue significantly depends on
its access to high-quality vendors. The Defendant is subject to
liability under the TCPA for actions of its third-party vendors who
engage in outbound telemarketing efforts on Defendant's behalf.
In the fall of 2021 (September or October), the Plaintiff started
to receive solicitation calls from Defendant. At no point in time
did the Plaintiff solicit or request a health insurance policy from
the Defendant. At no point in time did the Plaintiff provide her
cellular phone number to Defendant. Shortly after the Defendant's
solicitation calls began, the Plaintiff answered a call.
Immediately upon answering the Defendant's solicitation calls, the
Plaintiff was greeted by a prerecorded voice that prompted the
Plaintiff to press a certain number to be connected to a live
representative.
The Defendant's illegal marketing practices have caused the
Plaintiff concrete harm, including: invading the Plaintiff's
privacy, stress, nuisance, wasting the Plaintiff's time, the
increased risk of personal injury resulting from the distraction
caused by the solicitation calls, decreased productivity,
aggravation that accompanies unwanted solicitation calls,
frustration, loss of concentration, and the loss of battery charge.
Moreover, each time the Defendant placed a robocall to the
Plaintiff's cellular phone, the Defendant occupied the Plaintiff's
cellular phone such that the Plaintiff was unable to receive other
phone calls or otherwise utilize her cellular phone while her phone
was ringing, says the complaint.
The Plaintiff is a natural person who resided in Nampa, Idaho.
The Defendant is a health insurance provider that markets its
insurance products to consumers nationwide.[BN]
The Plaintiff is represented by:
Nicholas M. Wajda, Esq.
WAJDA LAW GROUP, APC
3111 Camino Del Rio North, Suite 400
San Diego, CA 92108
Phone: (630) 997-0471
Email: nick@wajdalawgroup.com
HOON ON CO: Gannon Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Hoon On Co., Inc., et
al. The case is styled as Stephen Gannon, individually and on
behalf of all others similarly situated v. Hoon On Co., Inc., Three
Guys Deli & Grocery Inc., John Doe 1-X, persons yet unknown,
Limited Liability Companies, Partnerships, Corporations 1-X,
entities yet unknown, Case No. 1:22-cv-01657-LGS (S.D.N.Y., Feb.
28, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Hoon On Co., Inc. was established as a domestic business
corporation type registered at 235 Canal St., New York.[BN]
The Plaintiff is represented by:
Adam Douglas Ford, Esq.
FORD & HUFF LC
228 Park Avenue South
New York, NY 10003
Phone: (212) 287-5913
Email: adam.ford@fordcranelaw.com
JAKO ENTERPRISES: Iskhakova Files ADA Suit in E.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Jako Enterprises,
LLC. The case is styled as Marina Iskhakova, on behalf of herself
and all others similarly situated v. Jako Enterprises, LLC, Case
No. 1:22-cv-01325 (E.D.N.Y., March 10, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Jako Enterprises -- http://www.jakoent.com/-- operates as retail
stores.[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
JC FRANCHISING GROUP: Iskhakova Files ADA Suit in E.D. New York
---------------------------------------------------------------
A class action lawsuit has been filed against JC Franchising Group,
LLC. The case is styled as Marina Iskhakova, on behalf of herself
and all others similarly situated v. JC Franchising Group, LLC,
Case No. 1:22-cv-01279 (E.D.N.Y., March 9, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
JC Franchising Group, LLC provides homeowners with business-class
cleaning and environmental services.[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
JOHN HARRINGTON: Kaplan Files Suit in D. Minnesota
--------------------------------------------------
A class action lawsuit has been filed against John Mark Harrington,
et al. The case is styled as Zoe Kaplan, Jack Flom, Samira Hassan,
on behalf of themselves and others similarly situated individuals
v. John Harrington, Minnesota Department of Public Safety
Commissioner, in his individual and offical capacity; Sarah
Strommen, Minnesota Department of Natural Resources Commissioner,
in her individual and official capacity; Matthew Langer, Minnesota
State Patrol Colonel, in his individual and official capacity;
David Hutchinson, Hennepin County Sheriff, in his individual and
official capacity; John Does 1-10, in their individual and official
capacities; Case No. 0:22-cv-00640-JRT-JFD (D. Minn., March 10,
2022).
The nature of suit is stated as Other Civil Rights for the Civil
Rights Act.
John Mark Harrington (born 1956) is the current Commissioner of the
Minnesota Department of Public Safety for the U.S. State of
Minnesota, appointed by Governor Tim Walz, he has served since
January 2019.[BN]
The Plaintiffs are represented by:
Kevin C. Riach, Esq.
THE LAW OFFICE OF KEVIN C. RIACH
P.O. Box 270815
Vadnais Heights, MN 55127
Phone: (612) 203-8555
Email: kevin@riachdefense.com
The Defendants are represented by:
Sarah C. S. McLaren, Esq.
HENNEPIN COUNTY ATTORNEY'S OFFICE
C-2000 Government Center
300 South Sixth Street
Minneapolis, MN 55487
Phone: (612) 348-5532
Email: sarah.mclaren@hennepin.us
JORDAN RESTAURANT: Hood Seeks to Certify Class
----------------------------------------------
In the class action lawsuit captioned as Zak Hood, On behalf of
himself and those similarly situated, v. Jordan Restaurant Group HQ
LLC d/b/a Hen Quarter, et al. Case No. 2:22-cv-00486-EAS-KAJ (S.D.
Ohio), the Plaintiff asks the Court to enter an order:
1. Certifying a class under Rule 23 for Plaintiff's state law
claims (Count 2: Failure to Pay Minimum Wages under Ohio
Const. Art. II, Sec. 34a; Count 3: Untimely Payment of
Wages under O.R.C. section 4113.15; Count 4: Damages under
O.R.C. section 2307.60; Count 5: Unjust Enrichment);
2. Conditionally certify a collective action under the Fair
Labor Standards Act (FLSA);
3. Directing the Defendants to provide a class list
containing each class member’s name, home address, and
email address within 14 days;
4. Appointing him and his Counsel as the class's
representatives;
5. Approving the proposed form of notice;
6. Authorizing the Plaintiff to send the proposed notice to
the class members via both U.S. mail and email;
7. Allowing a 60-day period in which class members may opt-
out or exclude themselves; and
8. Setting a status/scheduling conference for approximately
30 days following the close of the notice period to inform
the Court as to the results of the notice process and set
a schedule for the remainder of the case.
According to the complaint, without warning, the defendants closed
the doors to their restaurant and then did not pay the employees
for their last weeks of work. Although the defendants could not
bother to pay their workers, the defendants apparently had no
problem receiving accolades from the Columbus Dispatch for, at
about the same time, buying Donatos Pizza stores.
Collectively, Defendants own and operate a Dublin, Ohio restaurant
called Hen Quarter. At 11:27 PM on January 11, 2022, Defendants
called it quits and closed the restaurant.
A copy of the Plaintiff's motion dated March 2, 2022 is available
from PacerMonitor.com at https://bit.ly/3KQaGvM at no extra
charge.[CC]
The Plaintiff is represented by:
Riley Kane, Esq.
Andrew R. Biller, Esq.
Andrew P. Kimble, Esq.
BILLER & KIMBLE, LLC
www.billerkimble.com
8044 Montgomery Rd., Suite 515
Cincinnati, OH 45236
Telephone: (513) 202-0710
Facsimile: (614) 340-4620
E-mail: abiller@billerkimble.com
akimble@billerkimble.com
rkane@billerkimble.com
KATE BROWN: Maney Files Suit in Court of Appeals
------------------------------------------------
A class action lawsuit has been filed against Kate Brown, et al.
The case is styled as Paul Julian Maney, Gary Clift, George W.
Nulph, Theron D. Hall, David Hart, Sheryl Lynn Sublet, Felishia
Ramirez, personal representative for the Estate of Juan Tristan,
individually, on behalf of a class of other similarly situated,
Plaintiff-Appellee v. Kate Brown, Governor, Defendant-Appellant;
Colette Peters, Heidi Steward, Mike Gower, Mark Nooth, Rob Persson,
Ken Jeske, State Of Oregon, Patrick Allen, Joe Bugher, Garry
Russell, Defendants; Case No. 22-35218 (U.S. Ct. of Appeals, 9th
Cir., March 10, 2022).
The nature of suit is stated as Prison Condition.
Katherine Brown -- https://katebrownfororegon.com/ -- is an
American politician and attorney serving as the 38th governor of
Oregon since 2015.[BN]
The Plaintiffs are represented by:
Juan Chavez, Esq.
P.O. Box 5248
Portland, OR 97208
Personal: 503-563-3357
- and -
Nadia H. Dahab, Esq.
SUGERMAN DAHAB
707 SW Washington Street, Suite 600
Portland, OR 97205
Personal: 503-228-6474
- and -
Alexander Meggitt, Esq.
P.O. Box 5248
Portland, OR 97208
Personal: 503-944-2270
- and -
David F. Sugerman, Esq.
DAVID F. SUGERMAN ATTORNEY, PC
520 SW Sixth Ave.
Portland, OR 97204
Personal: 503-228-6474
The Defendants are represented by:
R. Kyle Busse, Esq.
Molly K. Honore, Esq.
Kerry J. Shepherd, Esq.
MARKOWITZ HERBOLD PC
1455 SW Broadway, Suite 1900
Portland, OR 97201
Personal: 503-295-3085
- and -
DENISE GALE FJORDBECK, ASSISTANT ATTORNEY GENERAL
Oregon Department of Justice
1162 Court Street, NE
Salem, OR 97301
LOGAN HEALTH: Smeltz Files Suit in D. Montana
---------------------------------------------
A class action lawsuit has been filed against Logan Health, et al.
The case is styled as Allison Smeltz, on behalf of herself and all
others similarly situated v. Logan Health, Does I through X, Case
No. 4:22-cv-00028-BMM-JTJ (D. Mont. March 9, 2022).
The nature of suit is stated as Other P.I. for Personal Injury.
Logan Health Medical Center, formerly Kalispell Regional Medical
Center -- https://www.logan.org/ -- is a 288-bed non-profit,
tertiary, research and academic medical center located in
Kalispell, Montana, servicing the northern Montana region.[BN]
The Plaintiff is represented by:
John C. Heenan, Esq.
Joseph Patrick Cook, Esq.
HEENAN & COOK
1631 Zimmerman Trail
Billings, MT 59102
Phone: (406) 839-9091
Fax: (406) 839-9092
Email: john@lawmontana.com
joe@lawmontana.com
LOUIE'S SEAFOOD: Liman Can't Opt-out of Spagnuoli Class Settlement
------------------------------------------------------------------
In the case, MICHAEL SPAGNUOLI, KELLIE SHEA, and JOSEPH VESELAK,
individually and on behalf of all other persons similarly situated,
Plaintiffs v. LOUIE'S SEAFOOD RESTAURANT, LLC and/or any other
entities affiliated with, controlling, or controlled by LOUIE'S
SEAFOOD RESTAURANT, LLC; MARTIN PICONE; and MICHAEL GUINNANE,
LOUIE'S SEAFOOD RESTURANT, LLC, Defendants, Case No. 13-CV-4907
(JMA) (ARL) (E.D.N.Y.), Judge Joan M. Azrack of the U.S. District
Court for the Eastern District of New York issued an order
denying:
a. the Defendants' motion to enjoin Musa Liman's pursuit of
wage-and-hour claims on an individual basis; and
b. Mr. Liman's motion to belatedly opt out of the class
settlement.
I. Introduction
The wage-and-hour suit concluded with a class settlement. After the
Court granted final approval to the class settlement, Class Member
Liman, who did not opt out, sought to pursue wage-and-hour claims
on an individual basis. Pending before the Court is a motion by the
Defendants to enjoin Liman's pursuit of those claims and a motion
by Liman to belatedly opt out of the class settlement.
II. Background
In September 2013, Named Plaintiffs Michael Spagnuoli, Kellie Shea,
and Joseph Veselak, filed a putative class and collective complaint
against Defendants Louie's, Martin Picone; and Michael Guinnane.
The Named Plaintiffs alleged that the Defendants violated the Fair
Labor Standards Act ("FLSA") and New York Labor Law ("NYLL") by
failing to pay overtime compensation. In March 2015, Shea
voluntarily withdrew her claims after it was determined that she
had submitted fraudulent documents in discovery.
On Dec. 29, 2015, Magistrate Judge Lindsay conditionally certified
a collective action under the FLSA for "waiters and servers with
respect to overtime claim." The notice of the collective action was
mailed to the potential opt-in employees on Jan. 28, 2016. That
same day, in accordance with Judge Lindsay's order, the Defendants
also posted the Collective Action Notice on a corkboard outside the
employee's entrance to Louie's kitchen. The Collective Action
Notice remained posted on the corkboard through Sept. 27, 2018.
This was a conspicuous location that any employee had to pass by
while at work. Approximately 20 individuals filed consents to join
the collective action.
After undertaking additional discovery, the parties agreed on a
class-wide settlement and, on Dec. 16, 2016, the Named Plaintiffs
filed a motion for preliminary approval of the class settlement. On
Sept. 30, 2017, the Court preliminarily approved the parties'
proposed settlement and the notice and scheduled a final fairness
hearing for Feb. 2, 2018. Pursuant to the Court's Sept. 30, 2017
Order, the Class Action Notice informed the Class Members that they
had until Dec. 29, 2017 to opt-out of the settlement, object to the
settlement, or file a claim form.
On Oct. 30, 2017, the Class Action Notice was mailed by Simpluris,
the claims administrator, to 1,212 class members. Only one Class
Member opted out of the settlement and no Class Members objected to
the settlement. No Class Members appeared at the fairness hearing.
On Sept. 27, 2018, the Court granted final approval to the Class
Settlement. The Order provides that "the Court will retain
jurisdiction over the case and the Agreement."
Mr. Liman is a former employee of Louie's, who is a member of the
Class. Months after the Court granted final approval to the Class
Settlement, Liman and his attorneys contacted defense counsel in an
effort to pursue alleged wage-and-hour claims. Liman now seeks to
opt out of the Class Settlement, contending that he never received
the Class Action Notice.
Mr. Liman initially worked at Louie's from June 2014 to November
2015. He then returned to work at Louie's in November 2016 and
worked there until Sept. 16, 2018. During his initial period of
employment at Louie's, Liman executed an arbitration agreement in
approximately August 2015. His initial period of employment with
Louie's ended on Nov. 29, 2015.
Records indicate that Liman was mailed a copy of the Collective
Action Notice on Jan. 28, 2016. Records also indicate that, shortly
thereafter, Liman was sent a second copy of the Collective Action
Notice because Liman was one of the employees who had signed a
disputed arbitration agreement. Liman asserts that he never
received any mailings concerning the instant lawsuit and insists
that he did not learn about the lawsuit until March 2019. It is
undisputed that Liman never submitted a consent to opt-in to the
collective action. When Liman returned to work at Louie's in
November 2016, he executed a second arbitration agreement. Under
the Agreement, "any dispute as to arbitrability of a particular
issue or claim pursuant to the Agreement is to be resolved in
arbitration."
In September 2017, the Court granted preliminary approval to the
Class Settlement. Affidavits and a communication log from Simpluris
show that Liman and the other Class Members were mailed the Class
Notice on Oct. 30, 2017. Liman, who did not file a request to
opt-out of the settlement, asserts that he never received the Class
Action Notice.
On Sept. 16, 2018, Liman's employment with Louie's ended. Two weeks
later, the Court granted final approval to the Class Settlement. On
Oct. 9, 2018, Liman filed a complaint with the New York State
Department of Labor asserting that Louie's failed to pay him
overtime. In December 2018, Liman retained his present counsel, who
concluded that Louie's may have violated the NYLL and the FLSA. In
December 2018, Liman's counsel began preparing to file a complaint
in the Eastern District.
On May 6, 2019, the Defendants filed a letter motion with the Court
asking that the Court enjoin Liman from filing any claim for
"unpaid wages allegedly owed during the class period of Sept. 4,
2007 through the date the Court approved the Agreement since his
claims were resolved, waived, and released pursuant to the
Settlement Agreement and the Court's Sept. 27, 2018 Order." The
Defendants also requested that they be awarded attorney's fees
pursuant to Settlement Agreement, which "states that the Defendants
will be entitled to make an application for attorneys' fees and
costs" if any Class Member who has not opted out "commences an
action related to any" released claims.
On May 8, 2019, Liman filed a response. In the response, Liman
argued that his failure to opt-out of the Class Settlement did not
bar him from pursuing his FLSA claims because, according to Liman:
(1) FLSA claims cannot be released in an opt-out settlement under
Rule 23; (2) the Settlement Agreement and other filings indicate
that Liman "did not release his FLSA claims by not affirmatively
opting into Spagnuoli." He also requested permission to file a
motion to submit a belated opt-out form, claiming that he could
establish excusable neglect for failing to opt-out earlier. Liman
sought to opt out of the Class Settlement so that he could "pursue
his FLSA claims for unpaid wages in an arbitral forum." Attached to
this filing was an affidavit from Liman in which he: (1) denies
receiving the Class Action Notice and any other mailings about the
lawsuit; and (2) maintains that he first learned of this lawsuit
and the Class Settlement from his attorneys in March 2019.
On March 31, 2021, the Court granted Liman leave to file a motion
to submit a belated opt-out request. That motion, as well as the
Defendants' motion that seeks to enjoin Liman's from pursuing his
alleged claims, are pending before the Court.
III. Discussion
A. Liman's Motion to Opt-Out of the Class Settlement
Mr. Liman first requested to opt out of the Class Settlement more
than sixteen months after the Dec. 29, 2017 opt-out deadline. Liman
asserts that the Court should grant his request because he has
allegedly established exclusive neglect for not opting out in
accordance the December 2017 deadline.
Judge Azrack denies Liman's motion to opt-out of the settlement
because he has not established excusable neglect. In arriving this
concludes, Judge Azrack focuses on the most important factor --
Liman's purported reasons for delay, including his assertion that
he did not receive a Class Action Notice in 2017 and did not learn
of the Class Settlement and the opt-out requirement until March
2019.
Judge Azrack finds that Liman's arguments are meritless. Liman's
affidavit does not assert that he reviewed this specific language
in the Collective Action Notice and subsequently relied on it to
his detriment. Moreover, the Court is not relying on the Collective
Action Notices to establish that those mailings gave Liman specific
notice of the Class Settlement and the opt-out deadline set out in
the Class Action Notice. Rather, the Court is relying on the
Collective Action Notices that were mailed to Liman and posted at
Louie's because that evidence completely undermines Liman's
credibility and his claims that he did not receive any of the three
notices sent to him (including the Class Action Notice) and was
completely unaware of this lawsuit prior to March 2019.
Even if she were to credit Liman's claims that he did not receive
the Collective Action Notices and Class Action Notices, Judge
Azrack would still find that excusable neglect is absent. Even
after Liman obtained counsel in December 2018, he did not act
expeditiously to try to opt-out of the Class Settlement.
Because Liman has not established excusable neglect, Judge Azrack
will deny his motion to opt out is denied.
B. Defendants' Motion Seeking to Enjoin Liman and Recover
Attorney's Fees
Having denied Liman's motion to opt-out of the Class Settlement,
Judge Azrack turns to the Defendants' motion, which asks the Court
to permanently enjoin Liman from pursuing any claims for unpaid
wages that were resolved, waived, and released pursuant to the
Settlement Agreement and the Court's Sept. 27, 2018 Order.
Mr. Liman asserts that his FLSA claims are not precluded and seeks
to pursue those claims in arbitration. He maintains that the Court
should hold that his FLSA claims are not precluded by the Class
Settlement.
However, in light of the Arbitration Agreement between the parties,
Judge Azrack declines to reach this question and denies the
Defendants' request for a permanent injunction precluding Liman
from pursing his claims. The Defendants may seek this relief in
arbitration and/or raise their arguments concerning release and res
judicata as defenses in the arbitration proceeding Liman seeks to
bring. Accordingly, the Defendants' request for a permanent
injunction precluding the Plaintiff from pursuing his alleged
claims is denied.
In Liman's most recent filings, he requests that the statute of
limitations be equitably tolled for the time period during which
these motions have been pending before the Court. Judge Azrack
declines to rule on this request, which can be raised in
arbitration.
Finally, the Defendants' motion also requests attorney's fees
pursuant to Section 4.1(I) of the Settlement Agreement. Although
the Defendants prevailed in opposing Liman's motion to opt out,
that motion is not covered by the attorney's fees clause because
that motion does not constitute a "new action." With respect to the
Defendants' motion to enjoin Liman, the Court has denied that
motion and, as Liman points out, the fees provision is inapplicable
to that motion because Liman has not yet filed a "new action"
against the Defendants.
IV. Conclusion
For the reasons she stated, Judge Azrack denied Liman's motion to
opt out and the Defendants' motion to enjoin Liman.
A full-text copy of the Court's March 4, 2022 Order is available at
https://tinyurl.com/3f3zkduy from Leagle.com.
LTD FINANCIAL: Goldklang Files FDCPA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against LTD Financial
Services, L.P. The case is styled as Rochel Goldklang, individually
and on behalf of all others similarly situated v. LTD Financial
Services, L.P., Case No. 7:22-cv-01983 (S.D.N.Y., March 9, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
LTD Financial Services, L.P. -- https://www.ltdfin.com/ -- provides
collection and custom call center solutions.[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
MARK WALDRON: Dam Files Suit in E.D. Washington
-----------------------------------------------
A class action lawsuit has been filed against Mark Waldron. The
case is styled as Jun Dam, a California resident, on behalf of
himself and a purported class of similarly situated parties,
Appellant v. Mark D Waldron, Chapter 7 Trustee, Appellee, Case No.
2:22-cv-00040-SAB (E.D. Wash., March 9, 2022).
The nature of suit is stated as Bankruptcy Appeal (801) for Notice
of Appeal re Bankruptcy Matter.
Attorney Mark D. Waldron practices bankruptcy law in the State of
Washington and has his practice located in Tacoma.[BN]
The Appellant is represented by:
Timothy G Blood, Esq.
BLOOD HURST & O'REARDON LLP
501 West Broadway, Suite 1490
San Diego, CA 92101
Phone: (619) 338-1100
Fax: (619) 338-1101
Email: tblood@bholaw.com
The Appellee is represented by:
Pamela M Egan
POTOMAC LAW GROUP PLLC
1905 7th Avenue, W.
Seattle, WA 98119
Phone: (415) 297-0132
Email: pegan@potomaclaw.com
MARRIOT INTERNATIONAL: Tannenbaum Suit Removed to C.D. California
-----------------------------------------------------------------
The case styled as Noah Tannenbaum, individually and on behalf of
other persons similarly situated v. Marriot International, Inc.,
SLS Hotel Beverly Hills, Does 1-50, Case No. 22STCV00316, was
removed from the Los Angeles Superior Court, to the U.S. District
Court for the Central District Of California on March 10, 2022.
The District Court Clerk assigned Case No. 2:22-cv-01609-RGK-JPR to
the proceeding.
The nature of suit is stated as Other Contract for Breach of
Contract.
Marriott International, Inc. -- https://www.marriott.com/marriott/
-- is an American multinational company that operates, franchises,
and licenses lodging including hotel, residential, and timeshare
properties.[BN]
The Plaintiff is represented by:
Evan M Selik, Esq.
Christine Chalhoub Zaouk, Esq.
MCCATHERN LLP
523 West 6th Street Suite 830
Los Angeles, CA 90014
Phone: (213) 225-6150
Fax: (213) 225-6151
Email: eselik@mccathernlaw.com
czaouk@mccathernlaw.com
The Defendant is represented by:
Brett Nicole Taylor, Esq.
COZEN O'CONNOR
601 South Figueroa Street Suite 3700
Los Angeles, CA 90017
Phone: (213) 892-7900
Fax: (213) 892-7999
Email: btaylor@cozen.com
MDL 2841: Court Extends Class Cert Deadlines by 45 Days
-------------------------------------------------------
In the class action lawsuit RE: MONAT HAIR CARE PRODUCTS MARKETING,
SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION, Case No.
1:18-md-02841 (S.D. Fla.), the Hon. Judge Darrin P. Gayles entered
an order that the pending class certification deadlines shall be
further extended by 45 days.
The nature of suit states Torts -- Personal Injury -- Product
Liability.[CC]
MDL 2936: Claims in Suit Over Defective 303 THF Products Narrowed
-----------------------------------------------------------------
In the case, IN RE: SMITTY'S/CAM2 303 TRACTOR HYDRAULIC FLUID
MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION, MDL
No. 2936, Master Case No. 4-20-MD-02936-SRB (W.D. Mo.), Judge
Stephen R. Bough of the U.S. District Court for the Western
District of Missouri, Western Division, granted in part and denied
in part Defendants Smitty's Supply, Inc. and CAM2 International,
LLC's Motion to Dismiss Plaintiffs' Fourth Amended Consolidated
Complaint.
I. Background
The multidistrict litigation ("MDL") arises from the manufacture,
sale, and marketing of tractor hydraulic fluid ("THF"), a
multifunctional lubricant designed to offer certain protective
benefits when used in tractors and heavy equipment as a hydraulic
fluid, transmission fluid, and gear oil. The Plaintiffs represent a
putative class of consumers who purchased at least one of four
allegedly defective products at issue in the case: Smitty's Super S
Super Trac 303 Tractor Hydraulic Fluid, Smitty's Super S 303
Tractor Hydraulic Fluid, Cam2's Promax 303 Tractor Hydraulic Oil,
and Cam2's 303 Tractor Hydraulic Oil (collectively, the "303 THF
Products"). Defendants Smitty's and CAM2 manufactured the 303 THF
Products, which were sold nationwide by multiple retailers under
various label names.
The Plaintiffs initiated suit against the manufacturers and
retailers in multiple federal district courts where the 303 THF
products were sold. On Feb. 11, 2020, the Defendants requested all
pending actions be consolidated and transferred pursuant to 28
U.S.C. Section 1407. On June 2, 2020, the Judicial Panel on
Multidistrict Litigation ("J.P.M.L.") consolidated the eight
then-pending actions to the Western District of Missouri.
Following the creation of the MDL, the Plaintiffs filed another
lawsuit, Feldkamp v. Smitty's Supply, Inc., No. 20-cv-02177, in the
U.S. District Court for the Central District of Illinois, which was
subsequently transferred to the Court. The Court's Order dated Aug.
3, 2020 permitted the Plaintiffs to file a Consolidated Amended
Complaint that would serve to supersede all prior pleadings in the
individual cases. The Court's Aug. 3, 2020 Order permitted direct
joinder of new claims through the Consolidated Amended Complaint.
Plaintiffs filed three subsequent amended consolidated complaints.
The Defendants moved to dismiss the Third Amended Consolidated
Complaint, but that motion was rendered moot by the filing of the
Fourth Amended Consolidated Complaint ("FACC"), which is the
operative complaint.
All the Plaintiffs from all states assert the following claims
against the Defendants: Count I - Negligence; Count II - Breach of
Express Warranty; Count III - Breach of Implied Warranty of
Merchantability; Count IV - Breach of Implied Warranty of Fitness
for a Particular Purpose; Count V - Unjust Enrichment; Count VI -
Fraudulent Misrepresentation; and Count VII - Negligent
Misrepresentation.
The Plaintiffs additionally assert the following state-specific
claims on behalf of themselves and their proposed state classes:
Count VIII - Arkansas Deceptive Trade Practices Act, Ark. Code Ann
Section 4-88-101; Count IX - California Unfair Competition Law,
Cal. Bus. Prof. Code Section 17200; Count X - California False and
Misleading Advertising, Cal. Bus. Prof. Code Section 17500; Count
XI - California Consumer Legal Remedies Act, Cal. Civ. Code.
Section 1770; Count XII - Colorado Consumer Protection Act, Colo.
Rev. Stat. Section 6-1-101; Count XIII - Connecticut Unfair Trade
Practices Act, C.G.S.A. Section 42-110g2; Count XIV - Florida
Deceptive and Unfair Trade Practices Act, Fla. Stat. Ann. Section
501.201; Count XV - Florida Misleading Advertising Law, Fla. Stat.
Ann. Section 817.41; Count XVI - Illinois Consumer Fraud and
Deceptive Business Practices Act, ILCS Ch. 815, ACT 505, et seq.;
Count XVII - Indiana Deceptive Consumer Sales Act, Ind. Code. Ann.
Section 24-5-0.5-5(b)3; Count XVIII - Kansas Consumer Protection
Act, K.S.A. Section 50-623; Count XIX - Kentucky Consumer
Protection Act, Ky. Rev. Stat. Ann. Section 367.220; Count XX -
Michigan Consumer Protection Act, Mich. Comp. Laws Ann. Section
445.901; Count XXI - Minnesota Consumer Fraud Act, Minn. Stat. Ann.
Section 325F.67; Count XXII - Missouri Merchandising Practices Act,
Mo. Rev. Stat. Section 407.010; Count XXIII - Nebraska Consumer
Protection Act, Neb. Rev. Stat. Section 59-1601; Count XXIV -
Nebraska Uniform Deceptive Trade Practices Act, Neb. Rev. Stat.
Section 87-301; Count XXV - New York Consumer Protection Law, N.Y.
Code Section 20-700; Count XXVI - North Carolina Consumer
Protection Act, N.C.G.S. Section 75-1.1(a); Count XXVII - Ohio
Consumer Sales Practices Act, Ohio Rev. Code Ann. Section 1345.01;
Count XXVIII - Oklahoma Consumer Protection Act, Okla. Stat. Ann.
tit. 15, Section 751, et seq.4; Count XXIX - Pennsylvania Unfair
Trade Practices and Consumer Protection Law, 73 Pa. Stat. Ann.
Section 201-1, et seq.; Count XXX - South Dakota Deceptive Trade
Practices and Consumer Protection, S.D. Codified Laws Section
37-24-1, et seq.; Count XXXI - Texas Deceptive Trade
Practices-Consumer Protection Act, Tex. Bus. & Com. Code Ann.
Section 17.41, et seq.; Count XXXII - West Virginia Consumer Credit
and Protection Act, W. Va. Code Ann. Section 46A-6-101, et seq.;
Count XXXIII - Wisconsin Deceptive Trade Practices Act, Wis. Stat.
Ann. Section 100.18; Count XXIV - Arizona Consumer Fraud Act, Ariz.
Rev. Stat. Ann. Section 44-1521, et seq.; Count XXXV - Maine Unfair
Trade Practices Act, Me. Rev. Stat. tit. 5, Section 205-A, et seq.;
Count XXXVI - New Mexico Unfair Practices Act, N.M. Stat. Ann.
Section 52-12-1, et seq.; Count XXXVII - North Dakota Unlawful
Sales or Practices Act, N.D. Cent. Code Ann. Section 51-15-01, et
seq.; Count XXXVIII - Maryland Consumer Protection Act, Md. Code
Ann., Com. Law Section 13-101, et seq.; Count XXXIX - Massachusetts
Consumer Protection Act, Mass. Gen. Laws Ann. ch. 93A, Section 9;
Count XL - New Hampshire Consumer Protection Act, N.H. Rev. Stat.
Ann. Section 358-A:1, et seq.; Count XLI - New Jersey Consumer
Fraud Act, N.J. Stat. Ann. Section 56:8-19; Count XLII - Wyoming
Consumer Protection Act, Wyo. Stat. Ann. Section 40-12-101, et
seq.; Count XLIII - Connecticut Products Liability Act, C.G.S.A.
Section 52-572m; Count XLIV - Indiana Products Liability Act-Design
Defect, Ind. Code Ann. Section 34-20-4-4; Count XLV - Indiana
Products Liability Act-Failure to Warn, Ind. Code Ann. Section
34-20-4-2; Count XLVI - Kansas Product Liability Act-Design Defect,
K.S.A. Section 60-33016; Count XLVII - Kansas Product Liability
Act-Failure to Warn, K.S.A. Section 60-3301; Count XLVIII - Ohio
Products Liability Act-Design Defect, Ohio Rev. Stat. Ann. Section
2307.75; Count XLIX - Ohio Products Liability Act-Manufacturing
Defect, Ohio Rev. Stat. Ann. Section 2307.74; Count L - Ohio
Products Liability Act-Defect Due to Nonconformance with
Manufacturers' Representation, Ohio Rev. Stat. Ann. Section
2307.77; Count LI - Tennessee Products Liability Act of 1978, Tenn.
Code Ann. Section 29-28-101, et seq.; Count LII - Louisiana
Products Liability Act-Nonconformity to Express Warranty, La. Stat.
Ann. Section 9:2800.588; Count LIII - Louisiana Products Liability
Act-Design Defect, La. Stat. Ann. Section 9:2800.56; and Count LIV
- Louisiana Products Liability Act-Failure to Warn, La. Stat. Ann.
Section 9:2800.57.
Defendants Smitty's and Cam2 now move to dismiss all claims
asserted in the FACC. The Plaintiffs oppose the motion.
II. Discussion
A. Standing
The Defendants argue that the Plaintiffs lack standing for three
reasons: (1) the Plaintiffs fail to plead an injury-in-fact; (2)
the Plaintiffs do not allege future intent to purchase; and (3) the
Plaintiffs lack standing to bring claims for products they did not
themselves purchase.
Judge Bough finds that the FACC's factual allegations raise a
reasonable inference the four products are substantially similar.
Accordingly, he finds that, for the purposes of the motion, the
Plaintiffs have standing to pursue class claims.
B. Failure to Plead Damages
The Defendants argue that the Plaintiffs' claims should be
dismissed under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim because the Plaintiffs do not sufficiently
plead damages. The parties' arguments are regarding (1) property
damages, (2) purchase price damages, and (3) damages under state
law.
Among other things, Judge Bough holds that the Plaintiffs'
allegations are sufficient because they allege an inherent defect
afflicting all 303 THF Products. The Plaintiffs allege that each
product purchased "was not suitable for use," and as a result,
"caused damage" to each Plaintiffs' property. They do not plead
that a defect in the 303 THF Products manifests through use, but
that each THF product is defective by virtue of its "poor quality
base oils, waste oil, line flush, and used oils and diluted
additive packages." The Plaintiffs allege that each THF product
exhibits the alleged defect. Accordingly, the Court finds that
Plaintiffs sufficiently plead a cognizable injury.
C. Fraud-Based Claims (Counts V-VII & VIII-XLII)
The Defendants argue that the following fraud-based claims are
conclusory allegations that do not meet the heightened pleading
standard set out in Federal Rule of Civil Procedure 9(b): Counts
V-VII, alleging unjust enrichment, fraudulent misrepresentation,
negligent misrepresentation; and Counts VIII-XLII, alleging
violations of various state consumer acts.
Upon review of the FACC, Judge Bough finds that the Plaintiffs have
sufficiently alleged facts satisfying Rule 9(b)'s heightened
requirements. The Plaintiffs satisfy the "who," "what," "when,"
"where," and "how" requirements: (1) the "who" is Smitty's and
Cam2; (2) the "what" is the "303" labeling on the 303 THF Products
that misrepresented the quality of the product to consumers; (3)
the "when" is the time-period from Dec. 1, 2013 to present; (4) the
"where" is specifically the 41 states which the Plaintiffs
represent; and (5) the "how" is misleading marketing and labeling
of the 303 THF Products. The Plaintiffs allege that the Defendants
engaged in deceptive marketing and labeling during a specific
time-period in stores in the United States and that each plaintiff
relied on these representations in purchasing the 303 THF Products.
Accordingly, the Defendants' argument that Counts V-VII and
VIII-XLII fail to meet Rule 9(b)'s heightened pleading standard is
denied.
D. Common Law Claims (Counts I-VII)
The Defendants argue the Court must dismiss the Plaintiffs' common
law claims, Counts I-VII, for failure to state a claim for various
reasons including failure to plead the elements and failure to
plead state-specific requirements.
Judge Bough holds that (i) the FACC's structure of pleading each
common law claim in one count does not prevent the Plaintiffs from
sufficiently stating a plausible claim; (ii) the FACC does not
allege facts sufficient for the Florida Plaintiffs' implied
warranty claims to fall under the third-party beneficiary
exception; (iii) the Plaintiffs have sufficiently alleged pre-suit
notice in order to bring their breach of warranty claims; (iv) the
Plaintiffs have sufficiently pled a cause of action for breach of
express warranty; (v) he rejects the Defendants' argument that the
statements constituting the Plaintiffs' express warranty claims are
unactionable puffery; (vi) Count IV does not fail because the
Plaintiffs allege that any disclaimer was inconspicuous; (vii) the
Plaintiffs' six other common law claims are related and share
underlying facts; and (viii) the Plaintiffs have stated a claim for
unjust enrichment under New Jersey law.
Judge Bough also finds that (i) whether a reasonable consumer would
know that the "JD303" designation is now obsolete is a factual
dispute contested by the parties; (ii) the Plaintiffs concede that
"Arkansas does not appear to allow a claim for negligent
misrepresentation," that "New York does not allow negligent
misrepresentation in the absence of a special relationship, which
does not exist," and conceded Count VII as to the Indiana
Plaintiffs at oral argument; (iii) the FACC contains no allegations
of personal use as to Plaintiff Dahlke and Plaintiff Dow; (iv) as
to the Plaintiffs from Ohio, Pennsylvania, Massachusetts, and
Wyoming, the FACC makes no allegations that they purchased 303 THF
Products primarily for personal use; (v) the Plaintiffs have
alleged facts to put the Defendants on notice that their alleged
conduct was deceptive for the purposes of OCSPA; (vi) the
Plaintiffs have not sufficiently alleged public interest under
Minnesota law; (vii) the Plaintiffs' CUTPA claim is not based on
harm caused by personal injury or death; and (viii) the Indiana
Plaintiffs' warranty claims, Counts II-IV, are not subsumed by the
IPLA to the extent they seek property damages.
Judge Bough further finds that (i) the Plaintiffs concede that Ohio
law does not support their claim (Count XLIX); (ii) whether the
Missouri Plaintiffs had constructive notice in November 2017 has no
bearing on whether the Louisiana Plaintiffs had constructive notice
at that time; and (iii) to the extent not discussed, he does not
consider these incorporated arguments.
III. Conclusion
Judge Bough granted in part and denied in part the Defendants'
Motion to Dismiss Plaintiffs' Fourth Amended Consolidated
Complaint.
The Motion is granted insofar as the following claims are
dismissed:
a. The Plaintiffs' claims for injunctive relief;
b. Count I, negligence, as to the Louisiana, Mississippi, New
Jersey, and Ohio Plaintiffs;
c. Count I, negligence, as to the Connecticut and Kansas
Plaintiffs to the extent they seek property damages;
d. Count II, breach of express warranty, as to the Alabama,
Arizona, Connecticut, Florida, Indiana, Kentucky, Louisiana,
Maryland, Michigan, Mississippi, North Carolina, Ohio, and
Wisconsin Plaintiffs;
e. Count II, breach of express warranty, as to the
Connecticut, Indiana, Iowa, and Kansas Plaintiffs to the extent
they seek property damages;
f. Count III, breach of implied warranty of merchantability,
as to the Alabama, Arizona, California, Connecticut, Florida,
Illinois, Kentucky, Louisiana, Mississippi, New Jersey, New York,
North Carolina, Ohio, and Wisconsin Plaintiffs;
g. Count III, breach of implied warranty of merchantability,
as to the Connecticut, Indiana, and Kansas Plaintiffs to the extent
they seek property damages;
h. Count IV, breach of implied warranty of fitness for a
particular purpose, as to the Alabama, Arizona, California,
Connecticut, Florida, Illinois, Indiana, Kentucky, Louisiana,
Mississippi, New Jersey, New York, North Carolina, Ohio, and
Wisconsin Plaintiffs;
i. Count IV, breach of implied warranty of fitness for a
particular purpose, as to the Connecticut, Indiana, and Kansas
Plaintiffs to the extent they seek property damages;
j. Count V, unjust enrichment, as to the Louisiana, Michigan,
Mississippi, New Jersey, Ohio, and Wisconsin Plaintiffs;
k. Count V, unjust enrichment, as to the Connecticut
Plaintiffs to the extent they seek property damages;
l. Count V, unjust enrichment, as to the Illinois Plaintiffs
is predicated on the viability of related claims;
m. Count VI, fraudulent misrepresentation, as to the
Louisiana, Mississippi, and New Jersey Plaintiffs;
n. Count VI, fraudulent misrepresentation, as to the
Connecticut and Kansas Plaintiffs to the extent they seek property
damages;
o. Count VII, negligent misrepresentation, as to the Arkansas,
Louisiana, Mississippi, New Jersey, New York, and Ohio Plaintiffs;
p. Count VII, negligent misrepresentation, as to the
Connecticut and Kansas Plaintiffs to the extent they seek property
damages;
q. Count XVIII, a violation of Kansas's Consumer Protection
Act, K.S.A. Section 50-623, to the extent the Kansas Plaintiffs
seek property damages;
r. Count XIX, a violation of Kentucky's Consumer Protection
Act, Ky. Rev. Stat. Ann. Section 376.220;
s. Count XX, a violation of Michigan's Consumer Protection
Act, Mich. Comp. Laws Ann. Section 445.901, as to Plaintiff Dahlke
and Plaintiff Dow;
t. Count XXI, a violation of Minnesota's Consumer Fraud Act,
Minn. Stat. Ann. Section 325F.67;
u. Count XXVII, a violation of Oklahoma's Consumer Protection
Act, Okla. Stat. Ann. tit. 15, Section 751, et seq;
v. Count XXIX, a violation of Pennsylvania's Unfair Trade
Practices and Consumer Protection Law, 73 Pa. Stat. Ann. Section
201-1, et seq;
w. Count XXXIX, a violation of Massachusetts's Consumer
Protection Act, Mass. Gen. Laws. Ann. ch. 93A, Section 9;
x. Count XLII, a violation of Wyoming's Consumer Protection
Act, Wyo. Stat. Ann. Section 40-12-101, et seq.; and
y. Count XLIX, a violation of Ohio's Products Liability Act,
Ohio Rev. Stat. Ann. Section 29-28-101, et seq.
A full-text copy of the Court's March 8, 2022 Order is available at
https://tinyurl.com/3xj4h7p5 from Leagle.com.
MICHIGAN: "SORA" Suit Seeks Class Certification
-----------------------------------------------
In the class action lawsuit captioned as JOHN & JANE DOES A–G55,
on behalf of themselves and all others similarly situated, v. COL.
JOSEPH GASPER, GOV. GRETCHEN WHITMER, BRIAN SHIPMAN, ED HEAP,
MELISSA JENNINGS, ANTHONY E. KING, TIM FLANAGAN, SANDRA WILSON,
ADRIANNE VAN LANGEVELDE, and CAROLYN BURNS, all in their official
capacities, Case No. 2:21-cv-12843-MAG-CI (E.D. Mich.), the
Plaintiffs ask the Court to enter an order granting their motion
for class certification and appointment of class counsel.
The Plaintiffs seek class certification for all persons who are
currently, or will be subject to registration under New SORA, along
with subclasses, so that all within the defined class will have the
opportunity to secure injunctive relief for the violation of their
constitutional rights that occurreduniformly, consistently, and
across the board due to the actions and non-actions of the
Defendants.
This case arises out of a botched attempt to pass a Sex Offender
Registration Act ("SORA") that was capable of withstanding
constitutional scrutiny after the old SORA was declared
unconstitutional and the implementation and enforcement of the
blatantly unconstitutional law.
The Michigan State Police is the state police agency for the U.S.
state of Michigan. The MSP is a full-service law enforcement
agency, with its sworn members having full police powers
statewide.
A copy of the Plaintiffs' motion dated March 2, 2022 is available
from PacerMonitor.com at https://bit.ly/3MTRS0J at no extra
charge.[CC]
The Plaintiffs are represented by:
Alyson Oliver, Esq.
Paul Matouka, Esq.
Joseph Hardy, Esq.
Cameron Bell, Esq.
OLIVER LAW GROUP, P.C.
1647 W. Big Beaver Rd.
Troy, MI 48084
Telephone: (248) 327-6556
E-mail: notifications@oliverlawgroup.com
MP MATERIAL: Kessler Topaz Reminds of April 25 Deadline
-------------------------------------------------------
The law firm of Kessler Topaz Meltzer & Check, LLP (www.ktmc.com)
informs investors that a securities class action lawsuit has been
filed in the United States District Court for the District of
Nevada against MP Materials Corp. ("MP Materials") (NYSE: MP) f/k/a
Fortress Value Acquisition Corp. ("FVAC") (NYSE: FVAC; FVAC WS;
FVAC.U). The action charges MP Materials with violations of the
federal securities laws, including omissions and fraudulent
misrepresentations relating to the company's business, operations,
and prospects. As a result of MP Materials' materially misleading
statements to the public, MP Materials' investors have suffered
significant losses.
Kessler Topaz is one of the world's foremost advocates in
protecting the public against corporate fraud and other wrongdoing.
Our securities fraud litigators are regularly recognized as leaders
in the field individually and our firm is both feared and respected
among the defense bar and the insurance bar. We are proud to have
recovered billions of dollars for our clients and the classes of
shareholders we represent.
TO SUBMIT YOUR MP MATERIALS LOSSES, CLICK ON THE FOLLOWING LINK OR
COPY AND PASTE IN YOUR BROWSER:
https://www.ktmc.com/mp-class-action-lawsuit?utm_source=PR&utm_medium=link&utm_campaign=mp
LEAD PLAINTIFF DEADLINE: APRIL 25, 2022
CLASS PERIOD: MAY 1, 2020 THROUGH FEBRUARY 2, 2022
CONTACT AN ATTORNEY TO DISCUSS YOUR RIGHTS:
James Maro, Esq. at (484) 270-1453 or via email at info@ktmc.com
MP MATERIALS' ALLEGED MISCONDUCT
MP Materials engages in the ownership and operation of integrated
rare earth mining and processing facilities. FVAC operated as a
special purpose acquisition company ("SPAC"). In November 2020,
FVAC consummated a merger and changed its name to "MP Materials
Corp."
On February 3, 2022, Bonitas Research published a report accusing
MP Materials of executing an "abusive transfer price manipulation
scheme" with a related party in People's Republic of China
("China"), Shenghe Resources Holding Co., Ltd. ("Shenghe"), which
owned 7.7% of MP Materials as of March 22, 2021. Specifically, the
report alleged that, since the second quarter of 2021, MP Materials
and Shenghe "executed an abusive transfer price manipulation scheme
whereby Shenghe overpaid for MP [Materials] concentrates to
artificially inflate MP [Materials'] profits, [which] conveniently
coincided with the SPAC insider lock-up expiration so that MP
[Materials] insiders could sell MP [Materials] stock at
artificially inflated prices." In addition, the report cited a
September 2019 German academic study that concluded MP [Materials']
ore at Mountain Pass is "not economically viable to harvest for
rare earth metals while 12 of the other 13 well known rare earth
mines outside of China are economically feasible" at current market
prices.
Following 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.
WHAT CAN I DO?
MP Materials' investors may, no later than April 25, 2022 seek to
be appointed as a lead plaintiff representative of the class
through Kessler Topaz Meltzer & Check, LLP or other counsel, or may
choose to do nothing and remain an absent class member. Kessler
Topaz Meltzer & Check, LLP encourages MP Materials' investors who
have suffered significant losses to contact the firm directly to
acquire more information.
WHO CAN BE A LEAD PLAINTIFF?
A lead plaintiff is a representative party who acts on behalf of
all class members in directing the litigation. The lead plaintiff
is usually the investor or small group of investors who have the
largest financial interest and who are also adequate and typical of
the proposed class of investors. The lead plaintiff selects counsel
to represent the lead plaintiff and the class and these attorneys,
if approved by the court, are lead or class counsel. Your ability
to share in any recovery is not affected by the decision of whether
or not to serve as a lead plaintiff.
ABOUT KESSLER TOPAZ MELTZER & CHECK, LLP
Kessler Topaz Meltzer & Check, LLP prosecutes class actions in
state and federal courts throughout the country and around the
world. The firm has developed a global reputation for excellence
and has recovered billions of dollars for victims of fraud and
other corporate misconduct. All of our work is driven by a common
goal: to protect investors, consumers, employees and others from
fraud, abuse, misconduct and negligence by businesses and
fiduciaries. At the end of the day, we have succeeded if the bad
guys pay up, and if you recover your assets. The complaint in this
action was not filed by Kessler Topaz Meltzer & Check, LLP. For
more information about Kessler Topaz Meltzer & Check, LLP please
visit www.ktmc.com.
CONTACT:
Kessler Topaz Meltzer & Check, LLP
James Maro, Jr., Esq.
280 King of Prussia Road
Radnor, PA 19087
(484) 270-1453
info@ktmc.com [GN]
MUZI MOTORS: Brocklesby Alleges Mass Layoff Without Advance Notice
------------------------------------------------------------------
SCOTT BROCKLESBY, JUSTIN MAHARATH, JAMES JUBB, SCOTT FREDERICK,
ROBERT FARROW, DONNA DIVENUTI, DAVID PASTERNAK, ANTHONY MASONE,
SCOT RODMAN, TIMOTHY DUFFY, and VADIM IABLONOVSKI, on behalf of
themselves and all others similarly situated v. MUZI MOTORS, INC.,
NEAL CAMMARANO, GLEN CAMMARANNO, and DALE SINESI, Case No.
1:22-cv-10384 (D. Mass., March 11, 2022) is a civil action brought
by the Plaintiffs for Defendants' failure to provide at least 60
days' advance notice to them and putative class members before
Defendants' closing and/or conducting a mass layoff pursuant to the
the Worker Adjustment and Retraining Notification Act ("WARN
Act").
The Defendants' violations of the WARN Act had caused Plaintiffs
and Class Members to be injured due to the failure to provide at
least 60 days' notice to them before Defendants' closing and/or
conducting a mass layoff. The Plaintiffs further allege that the
Defendants failed to pay them and Class Members all earned paid
time off ("PTO") on the dates of their termination pursuant to
Mass. Gen. Laws ch. 149, sections 148, 150 ("Wage Act").
As a result of Defendants' violations of the Wage Act, the Class
Members were not timely paid all earned wages owed by Defendants
within the deadlines set forth in the Wage Act.
Muzi Motors is a family-owned and operated automotive dealership
located in Needham, Massachusetts.[BN]
The Plaintiffs are represented by:
Edward C. Cumbo, Esq.
Robert Richardson, Esq.
RICHARDSON & CUMBO, LLP
101 Federal Street, Suite 1900
Boston, MA 02110
Telephone: (617) 217-2779
E-mail: e.cumbo@rc-llp.com
r.richardson@rc-llp.com
NATIONAL COLLEGIATE: Sexually Abused Student-Athletes, Suit Says
----------------------------------------------------------------
JOHN DOE 1, JOHN DOE 2, and JOHN DOE 3, individually and on behalf
of all others similarly situated v. NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, THE UNIVERSITY OF SAN FRANCISCO, ANTHONY N. (AKA NINO)
GIARRATANO, and TROY NAKAMURA, Case No. 3:22-cv-01559 (N.D. Cal.,
March 11, 2022) is a class action for violations of Title IX of the
Education Amendments of 1972 as well as various state statutory and
common laws.
The Plaintiffs seek injunctive and equitable relief requiring the
NCAA to implement and enforce rules and bylaws considered best
practices. That includes prohibiting sexual harassment and/or
sexual abuse of student-athletes by athletics department 14;
prohibiting romantic or sexual relationships between athletics
department personnel and student-athletes; requiring NCAA member
institutions to immediately report any allegations 16 harassment or
abuse of a student-athlete by athletics department personnel;
requiring that all reports be independently investigated;
implementing public sanctions on member institutions and athletics
department personnel where allegations are substantiated; banning
athletics department personnel found to be in violation from
further working or volunteering for any member institution;
mandating training; and protecting student-athletes from
retaliation and coercion to 21 their teams, enter the NCAA transfer
portal, and/or forego their scholarships without an independent
ombudsman and advocate for the student-athletes.
The Plaintiffs also seek damages from the NCAA, USF, and the Coach
Defendants for the psychological abuse and repeated inappropriate
sexual conduct they suffered, and compensation for lost guaranteed
scholarship money, other out-of-pocket costs, and impairment of
their baseball careers, including playing Major League Baseball.
The NCAA has a historical and ongoing duty to protect the health
and safety of athletes. Indeed, its President and Board Member,
Mark Emmert, testified before Congress that the NCAA has "a clear,
moral obligation to make sure that we do everything we can to
support and protect student-athletes."
In exercise of that duty, the NCAA has promulgated rules that
require it to "adopt legislation to enhance member institutions’
compliance with applicable gender-equity laws." Gender equity
includes the right to be free from sexual harassment and other
sexualized conduct. When students suffer sexual abuse and
harassment, they are deprived of equal access to education. Despite
this duty to promulgate legislation to augment gender equity,
however, the NCAA has allegedly failed to implement any rules
prohibiting sexual harassment and retaliation.[BN]
The Plaintiffs are represented by:
Jonathan Selbin, Esq.
Michelle Lamy, Esq.
Nigar A. Shaikh, Esq.
LIEFF CABRASER
HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29 th Floor
San Francisco, CA 94111
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
E-mail: jselbin@lchb.com
mlamy@lchb.com
nshaikh@lchb.com
- and -
Elizabeth A. Fegan, Esq.
Lynn A. Ellenberger, Esq.
FEGAN SCOTT LLC
150 S. Wacker Drive, 24 th Floor
Chicago, IL 60606
Telephone: (312) 741-1019
Facsimile: (312) 264-0100
E-mail: beth@feganscott.com
lynn@feganscott.com
NEW YORK, NY: Scheduling Order Entered in Teagle Class Suit
-----------------------------------------------------------
In the class action lawsuit captioned as Teagle, et al., v. The
City of New York, et al., Case No. 1:19-cv-07211 (E.D.N.Y.), the
Hon. Magistrate Judge Taryn A. Merkl entered a scheduling Order as
follows:
-- The deadline to take the first step in motion practice for
the Plaintiffs' anticipated motion for class certification
is April 28, 2022.
The nature of suit states Civil Rights – Employment
Discrimination.
New York City comprises 5 boroughs sitting where the Hudson River
meets the Atlantic Ocean.[CC]
NISSAN NORTH: Altima Rust Class Action in Missouri Settled
----------------------------------------------------------
David A. Wood, writing for CarComplaints.com, reports that a Nissan
Altima rust class action lawsuit settlement has been reached
between Nissan and the Altima owner who sued over rusted
floorboards.
But in addition to the 2002-2006 Nissan Altimas included in the
lawsuit, the proposed settlement also includes 2004-2008 Nissan
Maxima cars.
However, the rust class action lawsuit includes only consumers in
Missouri, "who (1) currently own or lease a Class Vehicle, or (2)
who previously owned or leased a Class Vehicle and paid for repairs
to rust in a front floor pan of a Class Vehicle."
According to the Nissan rusted floorboard class action lawsuit, the
floor pan corrosion is so bad a driver can see the road through the
floorboard rust.
Missouri plaintiff Laura Frances Hays says she purchased a new 2003
Nissan Altima, but 12 years later in 2015 she saw a TV report about
rusted floorboards.
An inspection discovered a rusted front passenger floorboard, but
the plaintiff says it would cost $4,000 to $5,000 to repair the
floorboard, so she paid $459 to cover the rusted floorboard with
sheet metal.
Nissan allegedly wouldn't pay to repair the floorboard rust, so she
traded the Altima when it had 103,000 miles and a year after she
traded the car she filed the class action lawsuit.
According to the Nissan class action lawsuit, the Altima and Maxima
floorboards are shaped in a design that collects moisture which
causes corrosion.
Nissan argued the plaintiff drove her Altima for an entire 12 years
without noticing any rust problems, then the plaintiff expected
Nissan to cover the expense under warranty even though the Altima
corrosion warranty expired seven years before.
Nissan Rust Class Action Lawsuit Settlement
Although Nissan decided to settle the rusted floorboard lawsuit,
the automaker says it denies all the allegations and will settled
because of the cost and trouble of continued litigation that began
in 2017.
What began as an Altima rust class action lawsuit turned into an
Altima and Maxima lawsuit that was mostly dismissed. According to
the settlement, only a claim under the Missouri Merchandising
Practices Act remains.
Model year 2002-2006 Nissan Altima and 2004-2008 Nissan Maxima
customers may be eligible for reimbursement and repairs.
Nissan Rusted Floorboard Repair Program
According to the Nissan class action lawsuit settlement, Missouri
dealerships will inspect for front floor pan corrosion and perform
repairs for one year after the settlement's effective date.
It may also be possible to receive a rental vehicle for up to five
days while the Altima or Maxima is being repaired.
Nissan Rusted Floorboard Reimbursements
Altima and Maxima customers who previously paid for front floor pan
corrosion repairs in Missouri may be eligible for reimbursement as
long as a customer files a timely claim and provides all required
documentation.
"Supporting information includes documents and/or other information
sufficient to verify: (1) proof of repair and repair cost; (2)
proof of payment; and (3) sufficient information to enable the
Settlement Administrator to verify Missouri ownership at the time
of the repair." — Nissan rust class action lawsuit settlement
If the work was performed by a non-Nissan dealership the
reimbursement is limited to $5,000.
A Nissan Altima or Nissan Maxima customer who cannot provide the
necessary documents to support a full reimbursement claim will be
limited to $300 for reimbursement.
The Nissan Altima customer who filed the class action lawsuit
expects to receive $6,000, and the attorneys who represent the
plaintiff expect to receive nearly $3 million.
The Nissan rust class action lawsuit was filed in the U.S. District
Court for the Western District of Missouri: Laura Frances Hays, v.
Nissan North America, Inc, et. al.
The plaintiff is represented by Williams Dirks Dameron LLC, Stueve
Siegel Hanson LLP, and Dollar, Burns & Becker. [GN]
OCCIDENTAL PETROLEUM: Ct. Amends Class Certification Deadlines
--------------------------------------------------------------
In the class action lawsuit captioned as Box Elder Kids, LLC. et
al., v. Occidental Petroleum Corporation, et al., Case No. 28:1332
(D. Colo.), the Hon. Judge S. Kato Crews entered an order amending
class certification deadlines as follows:
-- The Class Certification Reply March 25, 2022
is due:
-- Class Certification Discovery April 15, 2022
Cut-off is now:
-- Motions for Oral Argument on April 15, 2022
Class Certification are due on:
The nature of suit states diversity-breach of contract.
Occidental Petroleum Corporation is an American company engaged in
hydrocarbon exploration in the United States, the Middle East, and
Colombia as well as petrochemical manufacturing in the United
States, Canada, and Chile.[CC]
OK FOODS: District Ct. Refuses to Compel Arbitration in Breach Suit
-------------------------------------------------------------------
Dennis Crouch, writing for Patentlyo, reports that Coffey applied
for a job with large poultry producer OK Foods (owned by Bachoco).
The online application required her to provide substantial
personally identifiable information (PII), including her name, SSN,
birthdate, etc. She got the job. At some point a few years later OK
Foods computer system was hacked and Coffey's information was
exposed (along with that of thousands of other employees). Coffey
found out after being provided notice of the breach (as required by
law).
Coffey sued OK Foods, bringing a class action for negligence,
breach of implied contract, breach of confidence, invasion of
privacy, breach of fiduciary duty, and breach of the covenant of
good faith and fair dealing.
Concrete Injury for Data Breach: Coffey's action suffers from the
same problems seen in most large PII hacking cases -- concrete
harm. Here, Coffey argues that she now suffers from an increased
risk of future identity theft. The defendant pointed the district
court toward the 2021 decision in TransUnion LLC v. Ramirez, 141 S.
Ct. 2190 (2021). In TransUnion, the Supreme Court held that "mere
risk of future harm" regarding a credit alert was not sufficiently
concrete to satisfy the Constitutional standing requirements.
OK Foods requested dismissal for lack of standing, but the district
court found that the allegations future risk in this case was
substantial and concrete enough to survive a motion to dismiss. the
district court particularly distinguished TransUnion. In that case,
there was no evidence that the information had been disseminated to
any third-parties. On the other hand, in Coffee's case everyone
agrees that Coffee's PII was obtained by a third party. Coffee also
provided evidence of recent unknown requests for credit on her
credit report. For the district court, this setup was enough to
demonstrate standing. The decision here is on the cusp and other
courts would have dismissed. Cases are more likely to proceed when
the breach includes financial or account login information such as
user_IDs and passwords.
Arbitration Agreement in Job Application: When Coffee applied for
the job, she also clicked "I agree" to a set of terms that included
an arbitration agreement. She argued, however, that the agreement
is not binding because she was not provided a copy of the agreement
to review and she does not recall ever actually signing the
agreement. The district court noted two problems with OK Foods'
evidence thus far presented: (1) OK Foods did not present the
"exact materials" as they appeared on here screen during the 2016
application process; and (2) the download link provided does not
show the arbitration package. In addition, the evidence from OK
Foods shows that a digitally signed arbitration agreement dated May
3, 2016, while Plaintiff alleges that she completed her online
application in April 2016.
All these competing allegations and proofs create an issue of
material fact and so the district court refused compel arbitration
at this point.
Next steps in the case:
-- Jury Trial on whether the parties entered into a binding
arbitration agreement. 9 U.S.C. Section 4. Note here that jury
trials on arbitrability are rarely granted. Rather, the usual
approach is for the district court to decide arbitrability based
upon a summary judgment standard. Here, however, the court
determined that the competing evidence created a sufficient
dispute.
-- If no arb, then a trial on Plaintiff's claims (although D's will
likely attempt to preempt this via summary judgment). [GN]
The case is styled Coffey v. OK Foods, 2:21-CV-02200, 2022 WL
738072 (W.D. Ark. Mar. 10, 2022).
PATRICK ALLEN: Maney Files Suit in Court of Appeals
---------------------------------------------------
A class action lawsuit has been filed against Patrick Allen, et al.
The case is styled as Paul Julian Maney, Gary Clift, George W.
Nulph, Theron D. Hall, David Hart, Sheryl Lynn Sublet, Felishia
Ramirez, personal representative for the Estate of Juan Tristan,
individually, on behalf of a class of other similarly situated,
Plaintiff-Appellee v. Patrick Allen, in his individual capacity
only, Defendant-Appellant; Kate Brown, Governor; Colette Peters,
Heidi Steward, Mike Gower, Mark Nooth, Rob Persson, Ken Jeske,
State Of Oregon, Patrick Allen, Joe Bugher, Garry Russell,
Defendants; Case No. 22-35219 (U.S. Ct. of Appeals, 9th Cir., March
10, 2022).
The nature of suit is stated as Prison Condition.
Katherine Brown -- https://katebrownfororegon.com/ -- is an
American politician and attorney serving as the 38th governor of
Oregon since 2015.[BN]
The Plaintiffs are represented by:
Juan Chavez, Esq.
P.O. Box 5248
Portland, OR 97208
Personal: 503-563-3357
- and -
Nadia H. Dahab, Esq.
SUGERMAN DAHAB
707 SW Washington Street, Suite 600
Portland, OR 97205
Personal: 503-228-6474
- and -
Alexander Meggitt, Esq.
P.O. Box 5248
Portland, OR 97208
Personal: 503-944-2270
- and -
David F. Sugerman, Esq.
DAVID F. SUGERMAN ATTORNEY, PC
520 SW Sixth Ave.
Portland, OR 97204
Personal: 503-228-6474
The Defendants are represented by:
Nicole Abercrombie, Esq.
Jonathan Wells Monson, Esq.
CABLE HUSTON LLP
1455 SW Broadway, Suite 1500
Portland, OR 97201
Personal: 503-224-3092
PERFECT PATTERNS: Daly Seeks Unpaid OT Wages Under FLSA & WWPCL
---------------------------------------------------------------
JERRETTE DALY, on behalf of himself and all others similarly
situated v. PERFECT PATTERNS, INC., Case No. 22-cv-314 (E.D. Wisc.,
March 11, 2022) is a collective and class action brought pursuant
to the Fair Labor Standards Act of 1938 and the Wisconsin's Wage
Payment and Collection Laws for unpaid overtime compensation,
unpaid straight time (regular) and/or agreed upon wages, liquidated
damages, costs, attorneys' fees, declaratory and/or injunctive
relief, and/or any such other relief the Court may deem
appropriate.
The Defendant operated (and continues to operate) an alleged
unlawful compensation system that deprived and failed to compensate
Plaintiff and all other current and former hourly-paid, non-exempt
employees for all hours worked and work performed each workweek,
including at an overtime rate of pay for each hour worked in excess
of 40 hours in a workweek, by shaving time (via electronic
timeclock rounding) from Plaintiff's and all other hourly-paid,
non-exempt employees' weekly timesheets for pre-shift, post-shift,
and in-shift hours worked and/or work performed, to the detriment
of said employees and to the benefit of Defendant, in violation of
the FLSA and WWPCL, the lawsuit says.
The Plaintiff worked as an hourly-paid, non-exempt employee in the
position of CNC Machinist at Defendant's direction, on Defendant's
behalf, for Defendant's benefit, and/or with Defendant's knowledge
alongside all other hourly-paid, non-exempt employees in the State
of Wisconsin.
Defendant is foundry with multiple physical locations in the State
of Wisconsin.[BN]
The Plaintiff is represented by:
Scott S. Luzi, Esq.
James A. Walcheske, Esq.
David M. Potteiger, Esq.
WALCHESKE & LUZI, LLC
235 N. Executive Drive, Suite 240
Brookfield, WI 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
E-mail: jwalcheske@walcheskeluzi.com
sluzi@walcheskeluzi.com
dpotteiger@walcheskeluzi.com
PHILIPS NORTH: Collins Seeks Overtime Wages for Hourly Employees
----------------------------------------------------------------
WYNDE COLLINS, on behalf of herself and on behalf of all others
similarly situated v. PHILIPS NORTH AMERICA, LLC, Case No.
1:22-cv-10386 (D. Mass., March 11, 2022) is brought under the Fair
Labor Standards Act and the common law of Georgia law for breach
of contract, quantum meruit and unjust enrichment against Philips
North America.
The Defendant instituted company-wide policies that allegedly
failed to pay the Plaintiff and the Class Members for all hours
worked. As a result of not paying for all hours worked, Defendant
owes the Plaintiff and the Class Members substantial wages. In
particular, the Defendant failed to pay Plaintiff for all
compensable pre-shift work that she performed each day.
Additionally, in December 2021, the Defendant's time-keeping
software (Kronos) experienced a ransomware attack, which caused a
mass outage of the time-keeping system utilized by Defendant. As a
result, Defendant failed to pay Plaintiff for all hours she worked
and merely paid her an estimated number of hours that was less than
the actual hours she worked, the lawsuit says.
The Plaintiff brings this collective action to recover unpaid
overtime wages owed to her individually and on behalf of all
similarly situated workers during the three-year period prior to
the filing of this Complaint.
The FLSA Kronos Class Members are all of Defendant's current and
former hourly paid employees who worked for Defendant following the
Kronos ransomware attack on or about December 11, 2021.
The Defendant employs residents of Massachusetts, owns property in
Massachusetts, contracts with companies in Massachusetts, and
conducts business in Massachusetts. Further, the causes of action
in this Complaint arise from decisions made by the Defendant in
Massachusetts. Those policy decisions harmed Plaintiff and the
Class Members.[BN]
The Plaintiff is represented by:
Arnold. J. Lizana, III, Esq.
LAW OFFICE OF ARNOLD J. LIZANA III, P.C.
1350 Main Street Suite 302
Springfield, MA 01103
Telephone: (877) 443-0999
Facsimile: (470) 231-0672
E-mail: alizana@attorneylizana.com
- and -
Taft L. Foley, II, Esq.
THE FOLEY LAW FIRM
3003 South Loop West, Suite 108
Houston, TX 77054
Telephone: (832) 778-8182
Facsimile: (832) 778-8353
E-mail: Taft.Foley@thefoleylawfirm.com
- and -
Don J. Foty, Esq.
HODGES & FOTY, LLP
4409 Montrose Blvd., Suite 200
Houston, TX 77006
Telephone: (713) 523-0001
Facsimile: (713) 523-1116
E-mail: dfoty@hftrialfirm.com
PILOT TRAVEL: Can Compel Arbitration in Waltrip Suit, Court Rules
-----------------------------------------------------------------
In the case, JUSTON WALTRIP, NATHANIEL COOLEY, CANDELARIO
CORDERO-JAIME, JEREMIAH HEISEY, DANIEL MADRID, JAVIER MARTINEZ,
MANUEL MORENO, SERGIO OLIVAS, MELVIN SANCHEZ, ANDRES ROCHA,
MCKANNIN YOUNG, AND JONATHAN WINCKLER, Plaintiffs v. PILOT TRAVEL
CENTERS, LLC and PILOT CORPORATION, Defendants, Case No. 21-cv-0643
SMV/KRS (D.N.M.), Magistrate Judge Stephan M. Vidmar of the U.S.
District Court for the District of New Mexico issued a Memorandum
Opinion and Order:
a. granting the Defendants' Motion to Compel Arbitration;
b. granting the Defendants' Motion to Enforce Class Action
Waiver;
c. denying the Defendants' Motion to Dismiss and stay the
action pending completion of arbitration; and
d. denying the Plaintiffs' oral Motion for Leave to file a
Sur-Reply and Motion for Jury Trial on Arbitrability.
I. Background
The Worker Adjustment Retraining Notification Act (the "WARN Act")
requires most employers with 100 or more employees to provide
notification 60 days in advance of plant closings. The Plaintiffs
are truck drivers who transported oil within the State of New
Mexico for Defendant Pilot Travel Centers, LLC. They allege that
the Defendants failed to provide sufficient advance written notice
before terminating their employment as required by the WARN Act.
They also seek certification as a class under Federal Rule of Civil
Procedure 23. Id.
When the Plaintiffs applied for employment with the Defendants,
they executed Mediation and Arbitration Agreements (the "MAAs")
which provided for mandatory arbitration of all disputes arising
out of their employment. The MAAs contained class action waivers.
The Defendants ask the Court to compel arbitration and enforce the
class action waivers. Finally, the Defendants request dismissal of
the Plaintiffs' claims once they are referred to arbitration.
II. Discussion
Courts evaluate whether the parties agreed to arbitrate in two
steps. The Court must first assess "whether the agreement at issue
constitutes a valid agreement to arbitrate" and then "whether the
asserted dispute falls within the scope of the arbitration clause."
The first question "must always be decided by a court." The second
question must also be decided by a court unless the arbitration
agreement includes a clause that clearly and unmistakably delegates
it to the arbitrator.
A. The MAAs are Valid Agreements to Arbitrate
1. Defendants' Evidence Shows Valid Agreements to Arbitrate
In support of the Motion, the Defendants submitted an affidavit by
their records custodian, Katrice Yancey. They also proffered the
MAAs and several other documents. The MAAs take two forms, one used
for Plaintiffs Cooley, Cordero-Jaime, Heisey, Madrid, Martinez,
Moreno, Rocha, Waltrip, Winckler, and Young ("MAA 1") and another
used for Plaintiffs Olivas and Sanchez ("MAA 2").
MAA 1 includes a provision stating that the disputes to be
arbitrated "include without limitation disputes arising out of or
relating to interpretation or application of this Agreement. MAA 2
is substantially the same as MAA 1, except for three key
differences. First, MAA 2 does not state clearly that arbitration
will be subject to the American Arbitration Association's rules.
Second, MAA 2 provides that any Claim will be filed no later than
one year from the date the Claim should have reasonably been
discovered or one year from the last date of employment, whichever
comes first. Employee agrees to waive its right to file any claims
which Employee fails to file within the stated time period. Third,
MAA 2 does not address class or collective actions.
The Plaintiffs argue that the Defendants have failed to meet their
burden because the MAAs and other documents are inadmissible.
First, they contend that the documents are inadmissible hearsay.
Second, they argue that, because Pilot's practice was to keep the
signature pages but discard the remainder of the MAA after it was
signed, there is no evidence that the submitted MAAs are the same
MAAs that the Plaintiffs signed.
Judge Vidmar disagrees with both arguments. He opines that the
documents attached to the Motion and Reply are admissible as
business records, and further finds that the signed MAAs and other
documents, together with the Yancey Affidavit and Checklists, are
prima facie evidence that the Plaintiffs agreed to arbitrate all
claims falling within the MAAs.
2. Plaintiffs' Evidence Does Not Demonstrate a Genuine Dispute of
Material Fact
All the Plaintiffs except Young submitted declarations stating that
they did not agree to arbitrate their disputes with Pilot. Because
he did not submit a declaration, Plaintiff Young has not shown a
genuine question of material fact precluding an order to arbitrate
his dispute. Judge Vidmar addresses the arguments common to the
remaining Plaintiffs first, then the arguments specific to certain
plaintiffs.
In their declarations, the Plaintiffs assert that they do not
remember the MAA, the Acknowledgement, their Applications, or the
contents of those documents, and that they "did not know about
entering into" an agreement to arbitrate. These statements do not
raise a genuine dispute of material fact regarding the existence of
an agreement to arbitrate, Judge Vidmar holds. The Plaintiffs'
"lack of memory about the form is entitled to little weight in
determining whether they actually signed it." Similarly, the
Plaintiffs' assertions that they did not understand the import of
the MAA do not raise a genuine issue. In addition to the foregoing
general assertions, Plaintiffs Winckler, Heisey, Madrid, Martinez,
and Rocha state that they did not sign MAA 1 or agree to arbitrate
their disputes with Defendants.
3. The Parties Formed an Agreement to Arbitrate under New Mexico
Law
Because the Plaintiffs have not shown a genuine issue of fact,
Judge Vidmar considers whether the parties formed an agreement to
arbitrate under New Mexico law. The Plaintiffs contend that there
was no acceptance of or mutual assent to the MAAs because there was
no "meeting of the minds."
Moreover, acceptance and mutual assent may be shown by a party's
conduct where the party knew that her conduct could constitute
acceptance and assent. The Plaintiffs signed either the
Acknowledgement or a version of the Application that included
notice of the arbitration requirement, or both. Those documents
state that agreement to the MAA is a condition of employment by
Pilot, putting Plaintiffs on notice that Pilot would not hire them
without their assent to the MAA. By signing those documents, then
accepting employment with Pilot, the Plaintiffs assented to
arbitration.
B. The Arbitrator Must Decide Issues of Arbitrability and
Enforceability
The second part of the Court's analysis considers whether the
parties' dispute must be arbitrated under the MAAs. The Plaintiffs
argue that the MAAs do not include a "clear and unmistakable"
delegation of arbitrability to the arbitrator. Alternatively, they
argue that any delegation provisions in the MAAs are
unconscionable.
1. The MAAs Include Clear and Unmistakable Delegation Provisions
Contrary to the Plaintiffs' assertion, Judge Vidmar finds that the
MAAs clearly delegate arbitrability to the arbitrator. MAA 1 states
that, "except as otherwise provided in the MAA, Pilot and Employee
consent to the resolution of all disputes covered by the MAA in
accordance with the American Arbitration Association ("AAA")
Rules." Moreover, both MAA 1 and MAA 2 include other provisions
addressing whether the arbitrator should decide questions of
arbitrability. Hence, both MAAs state that the arbitrator must
decide the applicability and enforceability of the MAAs.
2. The Delegation Provisions are Not Unconscionable
The Plaintiffs next assert that the delegation provisions in MAA 1
and MAA 2 are procedurally unconscionable because the parties had
unequal bargaining positions and the MAAs were offered on a "take
it or leave it" basis. They also argue that the delegation
provision in MAA 1 is substantively unconscionable because it
requires the Court, rather than an arbitrator, to decide whether
the Class Action Waiver applies and can be enforced. The Plaintiffs
argue that the MAA 1 delegation provision unfairly favors the
Defendants.
Viewing the evidence in the light most favorable to the Plaintiffs,
Judge Vidmar finds that the MAAs are adhesion contracts: The MAAs
were prepared by the Defendants, agreement to the MAAs was a
condition of employment, and the Plaintiffs were provided little,
if any, time or opportunity for bargaining. He concludes that the
circumstances surrounding execution of the MAAs do not rise to
procedural unconscionability. In addition, the MAA 1 delegation
provision is not unreasonably one-sided in favor of the Defendants
or patently unfair. Hence, MAA 1's delegation provision is neither
procedurally nor substantively unconscionable. Because the
Plaintiffs' argument regarding the unfairness of the delegation
provisions is based on the Class Action Waiver, which does not
appear in MAA 2, the Plaintiffs have not shown that MAA 2 is
patently unfair in its terms. Jdge Vidmar will enforce both
delegation provisions and refer any remaining arguments addressing
arbitrability and the enforceability and validity of the MAAs to
the arbitrator.
C. Plaintiffs Must Proceed Individually
Both Class Action Waivers provide that disputes over the validity
or enforceability of the Class Action Waivers must be decided by
the Court, Judge Vidmar holds. Because the Plaintiffs have not
shown that the Class Action Waiver is contrary to the WARN Act, he
will enforce the Class Action Waiver in MAA 1 as to Plaintiffs
Cooley, Cordero-Jaime, Heisey, Madrid, Martinez, Moreno, Rocha,
Waltrip, Winckler, and Young, who must proceed individually.
MAA 2 is silent on class and collective actions. An arbitration
agreement is presumed to apply to individual arbitration and
consent to participate in class arbitration cannot be inferred from
silence. Hence, Plaintiffs Olivas and Sanchez also must proceed
individually to arbitration.
D. Plaintiffs' Claims Will Be Stayed Pending Conclusion of
Arbitration
The Plaintiffs requested a stay of their claims pending conclusion
of arbitration. Judge Vidmar will, therefore, deny the Defendants'
Motion to Dismiss Plaintiffs' claims.
IV. Disposition
Based on the foregoing, Judge Vidmar granted in part and denied in
part the Defendants' Motion to Compel Arbitration, Motion to
Enforce Class Action Waiver, and Motion to Dismiss. The Defendants'
motion to compel arbitration is granted. The request to enforce the
Class Action Waiver is also granted. The Plaintiffs must proceed to
individual arbitration. The Defendants' Motion to Dismiss is
denied.
The Plaintiffs' claims are stayed pending conclusion of
arbitration.
The Plaintiffs' Motion for Jury Trial on Arbitrability is denied.
The Plaintiffs' oral Motion for Leave to File Sur-Reply is denied.
A full-text copy of the Court's March 8, 2022 Memorandum Opinion &
is available at https://tinyurl.com/ec9b6dmz from Leagle.com.
PIZZA CZAR: Court Dismisses with Prejudice Ewing Class Suit
-----------------------------------------------------------
In the class action lawsuit captioned as JAMES EWING, Individually
and on behalf of all others similarly situated v. PIZZA CZAR, INC.,
& SHANE HOLLOWAY, Case No. 3:19-cv-00232-LPR (E.D. Ark.), the Hon.
Judge Lee P. Rudofsky entered an order that:
-- The proposed Settlement Agreement is approved with
exceptions.
-- The release language is altered as discussed in this
Order.
-- SLF is only entitled to $20,342.80 in attorneys' fees and
costs.
-- This case will be dismissed with prejudice.
On August 21, 2019, Plaintiff James Ewing filed a Complaint, which
included Fair Labor Standards (FLSA) and Arkansas Minimum Wage Act
(AMWA) claims. In addition to individual claims, the Complaint
included both collective-action and class claims.
The thrust of the Complaint was that Defendants' failure to
adequately reimburse pizza delivery drivers for vehicle expenses
resulted in the drivers not being paid minimum wage. The Complaint
also alleged that Defendants failed to pay the drivers overtime
wages.
On October 4, 2019, the parties moved for a stay of the proceedings
pending mediation. The Court granted this motion.
On December 17, 2019 (while the stay was in place), the parties
participated in a day-long mediation with Allen Blair, an
experienced FLSA class and collective-action mediator.
Mediation yielded an agreement between the parties. On January 10,
2020, the parties filed a Joint Notice of Settlement. On February
28, 2021, the parties filed a Joint Motion for Preliminary Approval
of Class and Collective Action Settlement.
A copy of the Court's order dated March 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3u13XZh at no extra charge.[CC]
PROFESSIONAL CLAIMS: Appel Files FDCPA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Professional Claims
Bureau, LLC. The case is styled as Svi Appel, individually and on
behalf of all others similarly situated v. Professional Claims
Bureau, LLC, Case No. 7:22-cv-01988 (S.D.N.Y., March 9, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Professional Claims Bureau Inc. -- https://www.pcbinc.org/ -- is a
collection agency located in Garden City.[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
REAL HOSPITALITY: Laid Off Workers File WARN Class Action
---------------------------------------------------------
Matthew Russell Lee, writing for Inner City Press, reports that
workers laid off by the Cassa Hotel on West 45th Street filed a
class action lawsuit against Real Hospitality Group LLC for failure
to provide them with the notices required by the WARN Act.
On March 11, U.S. District Court for the Southern District of New
York Judge Victor Marrero held a fairness hearing. Inner City Press
covered it.
The class as a whole gets $279,000 and the named plaintiffs get
$21,000. Anything left over goes to City Harvest.
Plaintiffs counsel are getting $100,000 in attorneys' fees. Judge
Marrero inquired then found it fair, and approved it.
The case is Brazier et al v. Real Hospitality Group, LLC et al.,
20-cv-8239 (Marrero) [GN]
REBELZ CLUB: Seeks 90 Days Extension to File Class Cert. Bid Reply
------------------------------------------------------------------
In the class action lawsuit captioned as BRIANA RAE HARRIS, on
behalf of herself and all persons similarly situated, v. REBELZ
CLUB, LLC, d/b/a Rebelz Gentlemen's Club, HEATHER VARANDO, and
PABLO VARANDO, Case No. 4:22-cv-00111-MWB (M.D. Pa.), the Defendant
asks the Court to enter an order granting their motion to continue,
giving them 90 days to file a response to the Motion for
Conditional Certification, serve interrogatories and requests for
production that are limited to the matters raised in the
Plaintiff's motion for conditional certification, and conduct
depositions of the individuals who submitted affidavits in support
of the Motion for Conditional Certification.
On February 15, 2022, the Defendants filed their Motion for Partial
Dismissal, which asks the Court to dismiss large portions of
Plaintiff's Complaint, namely:
(A) all claims under the Pennsylvania Wage Payment and
Collection Law (WPCL), because the WPCL does not provide
independent relief as set forth in count two of the
Complaint;
(B) all claims involving dance fees because dance fees are
not tips;
(C) all claims against Mr. and Mrs. Varando, because the
Complaint's allegations against them are inappropriately
conclusory; and
(D) all claims regarding a failure to keep records because
there is no cause of action for such claims and, in any
event, those allegations are also conclusory.
Just one day later, on February 16, 2022, Ms. Harris filed a Motion
for Conditional Certification, asking the Court to conditionally
certify a collective action of "all persons who are working or have
worked as a Dancer at Rebelz Club, LLC, at any time since February
16, 2019."
Clearly, the Motion for Conditional Certification is premature; the
parties do not even know which claims will be proceeding beyond the
dismissal stage.
A copy of the Defendant's motion dated March 2, 2022 is available
from PacerMonitor.com at https://bit.ly/3icynSW at no extra
charge.[CC]
The Defendants are represented by:
David S. Gaines, Jr., Esq,
John W. Lhota, Esq,
MILLER, KISTLER & CAMPBELL
720 South Atherton Street, Suite 201
State College, PA 16801
Telephone: (814) 234-1500
Facsimile: (814) 234-1549
E-mail: dgaines@mkclaw.com
jlhota@mkclaw.com
RESURGENT CAPITAL: Tukin Files FDCPA Suit in E.D. Missouri
----------------------------------------------------------
A class action lawsuit has been filed against Resurgent Capital
Services L.P. The case is styled as Bob Tukin, individually, and on
behalf of all others similarly situated v. Resurgent Capital
Services L.P., Case No. 4:22-cv-00296-SEP (E.D. Mo., March 11,
2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Resurgent Capital Services, LP -- https://www.resurgent.com/ --
provides financial services. The Company manages debt portfolios
for credit grantors and debt buyers.[BN]
The Plaintiff is represented by:
David Michael Barshay, Esq.
BARSHAY RIZZO PLLC
445 Broadhollow Road, Suite Cl18
Melville, NY 11747
Phone: (631) 210-7272
Fax: (516) 706-5055
Email: dbarshay@brlfirm.com
SAPUTO CHEESE: Class Cert. Hearing Date Vacated in Vasquez Suit
---------------------------------------------------------------
In the class action lawsuit captioned as Don Vasquez v. Saputo
Cheese USA, Inc., Case No. 1:20-cv-01029 (E.D. Cal.), the Hon.
Magistrate Judge Helena M. Barch-Kuchta entered an order on motion
for miscellaneous relief.
-- The March 9, 2022 Class Certification Hearing date set in
the Preliminary Scheduling Order was vacated in light of
the parties mediation efforts
-- Further to the parties' Stipulation, the parties were
scheduled for mediation on March 1, 2022 and were to advise
the court of the results of mediation no later than March
8, 2022.
-- The court will set a telephonic status conference after
receipt and review of the parties' mediation report.
The suit alleges violation of the Civil Rights Act involving Labor
Litigation.
Saputo Cheese produces and distributes a variety of cheeses.[CC]
SASSO & SONS: Gramajo Seeks OT Premiums for Landscapers Under FLSA
------------------------------------------------------------------
CARLOS ADRIAN GRAMAJO, individually and on behalf of all others
similarly situated v. SASSO & SONS LLC, JOSEPH C. SASSO, and JOSEPH
R. SASSO, jointly and severally, Case No. 1:22-cv-01369 (E.D.N.Y.,
March 11, 2022) seeks to recover overtime premium pay owed to
Plaintiff pursuant to both the Fair Labor Standards Act and the New
York Labor Law.
The Plaintiff further brings claims for unpaid spread-of-hours
premiums and for failure to provide proper wage statements pursuant
to NYLL section 190 et seq. and the supporting regulations.
The Plaintiff is a former landscaper who worked for the Defendants'
landscaping business throughout Long Island, New York. For his
work, despite being a non-exempt employee, the Plaintiff was paid a
daily rate that did not provide overtime premiums for hours worked
over 40 in a given workweek. The Plaintiff and Defendants' other
employees also did not receive spread of hours premiums for days in
which they worked shifts in excess of 10 hours and did not receive
proper wage statements with their wage payments, says the suit.
Throughout the relevant time period, the Plaintiff performed work
for Defendants at their landscaping business, "Sasso and Sons,"
which operates from at 5 Hansen Ln, Huntington Station, New York.
The Plaintiff brings his FLSA claims on behalf of himself and all
other similarly situated employees of Defendants and his NYLL
claims on behalf of himself and all individuals who join the action
pursuant to the FLSA (the Opt-in Plaintiffs).[BN]
The Plaintiff is represented by:
Brent E. Pelton, Esq.
Taylor B. Graham, Esq.
PELTON GRAHAM LLC
www.peltongraham.com
111 Broadway, Suite 1503
New York, NY 10006
Telephone: (212) 385-9700
SHATTUCK LABS: Rosen Law Firm Reminds of April 1 Deadline
---------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, reminds
purchasers of the securities of Shattuck Labs, Inc. (NASDAQ: STTK):
(i) pursuant and/or traceable to the registration statement and
related prospectus issued in connection with Shattuck's October
2020 initial public offering (the "IPO" or "Offering"); and/or (ii)
between October 9, 2020 and November 9, 2021, both dates inclusive
(the "Class Period"), of the important April 1, 2022 lead plaintiff
deadline in the securities class action commenced by the Firm.
SO WHAT: If you purchased Shattuck 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 Shattuck class action, go to
https://rosenlegal.com/submit-form/?case_id=2728 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than April 1, 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, the materials
supporting the IPO and defendants throughout the Class Period made
false and/or misleading statements and/or failed to disclose that:
(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 Shattuck's business, operations, and prospects
were materially false and misleading and/or lacked a reasonable
basis at all relevant times. When the true details entered the
market, the lawsuit claims that investors suffered damages.
To join the Shattuck class action, go to
https://rosenlegal.com/submit-form/?case_id=2728 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]
SIMON EYE: Fails to Secure Patients' Info, Owens-Wilmoth Suit Says
------------------------------------------------------------------
BRENDA OWENS-WILMOTH, on behalf of herself and all others similarly
situated v. SIMON EYE MANAGEMENT, LLC, and SIMON EYE ASSOCIATES,
P.A., Case No. N22C-03-105 JRJ (Del. Super Ct., March 11, 2022) is
a civil action seeking monetary damages and injunctive and
declaratory relief from the Defendants, arising from its/their
failure to safeguard certain Simon Eye Personally Identifying
Information and Protected Health Information (PII) of hundreds of
thousands of its patients, including the Plaintiff and the members
of the putative Class.
According to the complaint, the patients' PII has been compromised,
resulting in widespread injury and monetary damages. That from May
12, 2021 to May 18, 2021, in an attempt to engage in "wire transfer
and manipulation attacks" cybercriminals gained access to the
information technology systems, including employees' email
accounts, of Defendant(s), Simon Eye Management, LLC and/or Simon
Eye Associates, P.A., which contained private and confidential PII
of Plaintiff Owens-Wilmoth's and of the proposed Class Member(s)',
including, "names; medical history; treatment or diagnosis
information; health information; health insurance information,
including policy and/or subscriber information; insurance
application and/or claims information; and for a smaller number of
individuals may have included their Social Security number, date of
birth, and/or financial account information." ("Data Breach").
That on behalf of herself and the Class members, Plaintiff
Owens-Wilmoth brings causes of action sounding in negligence,
breach of contract, breach of implied contract, breach of the
covenant of good faith and fair dealing, conversion and/or trespass
to chattels, bailment, and violation of the Delaware Uniform
Deceptive Trade Practices Act.[BN]
The Plaintiff is represented by:
Blake A. Bennett, Esq.
Dean R. Roland, Esq.
Andrew A. Ralli, Esq.
COOCH AND TAYLOR P.A.
1007 N. Orange Street, Suite 1120
P.O. Box 1680
Wilmington, DE 19899-1680
Telephone: (302) 984-3889
Facsimile: (302) 984-3939
- and -
Lynn A. Toops, Esq.
Lisa M. La Fornara, Esq.
COHEN & MALAD, LLP
One Indiana Square, Suite 1400
Indianapolis, IN 46204
Telephone: (317) 636-6481
E-mail:ltoops@cohenandmalad.com
llafornara@cohenandmalad.com
- and -
J. Gerard Stranch, IV, Esq.
Peter J. Jannace, Esq.
Andrew E. Mize, Esq.
BRANSTETTER, STRANCH
& JENNINGS, PLLC
223 Rosa L. Parks Avenue, Suite 200
Nashville, TN 37203
Telephone: (615) 254-8801
E-mail: gerards@bsjfirm.com
peterj@bsjfirm.com
andrewm@bsjfirm.com
- and -
Christopher D. Jennings, Esq.
THE JOHNSON FIRM
2226 Cottondale Lane, Suite 210
Little Rock, AR 72202
Telephone: (501) 372-1300
E-mail:chris@yourattorney.com
SITE 25: Calel Class Suit Stayed
--------------------------------
In the class action lawsuit captioned as TOMAS GABRIEL CALEL and
CARLOS GEOVANY PONCIO ZARATE, on behalf of themselves, FLSA
Collective Plaintiffs, and the Class, v. SITE 25 RESTAURANT
CONCEPTS, LLC d/b/a WEI WEST, et al., Case No.
1:21-cv-08692-AJN-BCM (S.D.N.Y.), the Hon. Judge Barbara Moses
entered an order that this action is stayed.
No later than May 31, 2022, and every 3 months thereafter (e.g.,
August 31, 2022, November 30, 2022, February 28, 2023,
etc.), the defendants shall file a letter apprising the Court ofthe
status of the bankruptcy and whether the stay as against both
defendants should be maintained, Judge Moses says.
On February 23, 2022, the defendant Site 25 filed a suggestion of
bankruptcy in this action. Pursuant to 11 U.S.C. section 362, this
action is therefore automatically stayed as against Site 25. That
same day, counsel for both defendants filed a letter-motion,
seeking a stay of the action as to the non-debtor defendant, Alan
Phillips, on the basis that an automatic stay can apply to
non-debtors when the claim "will have an immediate adverse economic
consequence for the debtor's estate." The Plaintiffs' counsel did
not respond to the letter-motion, which is thus unopposed.
A copy of the Court's order dated March 1, 2022 is available from
PacerMonitor.com at https://bit.ly/35PCxxv at no extra charge.[CC]
SOLSTICE SENIOR: Fails to Pay OT at Correct Hourly Rate, Garcia Say
-------------------------------------------------------------------
DANIEL GARCIA, on behalf of himself and on behalf of all others
similarly situated v. SOLSTICE SENIOR LIVING LLC, Case No.
3:22-cv-00332-MMA-AHG (S.D. Cal., March 11, 2022) alleges that
Solstice failed to pay Plaintiff and other hourly workers overtime
wages at the correct hourly rate when they work more than 40 hours
in a workweek as required by the Fair 25 Standards Act.
The Plaintiff and the similarly situated workers he seeks to
represent, are current and former hourly paid employees who worked
for Defendant for any work week during the period of three years
prior to the Court certifying a collective action to the present.
The Defendant's alleged pay practices and policies applied equally
to Plaintiff and to all of the Class Members. Therefore, Plaintiff
brings this suit on behalf of himself and all other similarly
situated individual.
The Plaintiff has been employed by Defendant since October 2020 as
an hourly paid cook.
The Defendant is in the business of providing independent living
communities to the elderly.[BN]
The Plaintiff is represented by:
Ricardo J. Prieto, Esq.
Melinda Arbuckle, Esq.
SHELLIST | LAZARZ | SLOBIN LLP
11 Greenway Plaza, Suite 1515
Houston, TX 77046
Telephone: (713) 621-2277
Facsimile: (713) 621-0993
E-mail: rprieto@eeoc.net
marbuckle@eeoc.net
SUFFOLK UNIVERSITY: Class Cert. Bid Filing Extended to March 21
----------------------------------------------------------------
In the class action lawsuit captioned as JULIA DURBECK,
individually and on behalf of all others similarly situated, v.
SUFFOLK UNIVERSITY, Case No. 1:20-cv-10985 (D. Mass.), the Hon.
Judge William G. Young entered an order granting motion for
extension of time to March 21, 2002 to file motion for class
certification.
The nature of suit states diversity-other contract.
Suffolk University is a private research university in Boston,
Massachusetts.[CC]
TAMKO BUILDING: Revised Scheduling Order Entered in Melnick Suit
----------------------------------------------------------------
In the class action lawsuit captioned as MARTIN MELNICK, et al., v.
TAMKO BUILDING PRODUCTS, INC., Case No. 2:19-cv-02630-JAR-KGG (D.
Kan.), the Hon. Judge entered an order granting unopposed motion to
extend deadlines and third revised scheduling order as follows:
-- Supplementation of initial 40 days before
disclosures: completion of discovery
-- Initial discovery on Jan. 30, 2023
class certification
completed:
-- Experts disclosed by Aug. 12, 2022
Plaintiffs:
Deposed by: Sept. 12, 2022
-- Experts disclosed by Oct. 13, 2022
Defendant:
Deposed by Nov. 21, 2022
-- Rebuttal experts disclosed: Dec. 27, 2022
Deposed by: Jan. 30, 2023
-- Motion to certify class: Feb. 28, 2023
The Defendant filed an unopposed motion to extend deadlines in the
scheduling order. On March 1, 2022, in accordance with Fed. R.
Civ. P. 16, the undersigned U.S. Magistrate Judge, Kenneth G. Gale,
conducted a hearing with the parties. After review of the motion
and consultation with the parties, the Court grants the motion and
enters this Third Revised Scheduling Order.
Tamko Building provides building products.
A copy of the Court's order dated March 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3CJf2lI at no extra charge.[CC]
TASKUS INC: Kessler Topaz Reminds of April 25 Deadline
------------------------------------------------------
The law firm of Kessler Topaz Meltzer & Check, LLP (www.ktmc.com)
informs investors that a securities class action lawsuit has been
filed against TaskUs, Inc. ("TaskUs") (NASDAQ: TASK). The action
charges TaskUs with violations of the federal securities laws,
including omissions and fraudulent misrepresentations relating to
the company's business, operations, and prospects. As a result of
TaskUs' materially misleading statements to the public, TaskUs'
investors have suffered significant losses.
Kessler Topaz is one of the world's foremost advocates in
protecting the public against corporate fraud and other wrongdoing.
Our securities fraud litigators are regularly recognized as leaders
in the field individually and our firm is both feared and respected
among the defense bar and the insurance bar. We are proud to have
recovered billions of dollars for our clients and the classes of
shareholders we represent.
TO SUBMIT YOUR TASKUS LOSSES, CLICK ON THE FOLLOWING LINK OR COPY
AND PASTE IN YOUR BROWSER:
https://www.ktmc.com/task-class-action-lawsuit?utm_source=PR&utm_medium=link&utm_campaign=task
LEAD PLAINTIFF DEADLINE: APRIL 25, 2022
CLASS PERIOD: JUNE 11, 2021 THROUGH JANUARY 19, 2022
CONTACT AN ATTORNEY TO DISCUSS YOUR RIGHTS:
James Maro, Esq. at (484) 270-1453 or via email at info@ktmc.com
TASKUS' ALLEGED MISCONDUCT
TaskUs is a business process outsourcing company focused on
providing three key services to technology companies: (1) Digital
Customer Experience (2) Content Security; and (3) Artificial
Intelligence Operations.
On January 20, 2022, Spruce Point Capital Management, LLC issued an
80-page report on TaskUs titled "Moderating the Bull Case Content"
based on its "forensic financial and accounting review" of TaskUs.
The report indicated that TaskUs "has a pattern of exaggerated and
inflated business claims, including revenue, and is covering-up
financial strain with reduced disclosures, cherry-picked market
data, and non-standard key performance metrics. With 28% of sales
to Facebook and related to the controversial area of 'Content
Moderation' we find evidence of increasing financial strain in the
relationship and believe margins and cash flow are set to contract
more than expected." Additionally, the report stated, "we find a
pattern of embellishing the size of its workforce and making overly
optimistic revenue growth claims."
Following this news, the price of TaskUs' stock fell $5.46 per
share, or more than 15%, from $35.59 per share on January 19, 2022,
to $30.13 per share at the close of trading on January 20, 2022.
WHAT CAN I DO?
TaskUs investors may, no later than April 25, 2022 seek to be
appointed as a lead plaintiff representative of the class through
Kessler Topaz Meltzer & Check, LLP or other counsel, or may choose
to do nothing and remain an absent class member. Kessler Topaz
Meltzer & Check, LLP encourages TaskUs investors who have suffered
significant losses to contact the firm directly to acquire more
information.
WHO CAN BE A LEAD PLAINTIFF?
A lead plaintiff is a representative party who acts on behalf of
all class members in directing the litigation. The lead plaintiff
is usually the investor or small group of investors who have the
largest financial interest and who are also adequate and typical of
the proposed class of investors. The lead plaintiff selects counsel
to represent the lead plaintiff and the class and these attorneys,
if approved by the court, are lead or class counsel. Your ability
to share in any recovery is not affected by the decision of whether
or not to serve as a lead plaintiff.
ABOUT KESSLER TOPAZ MELTZER & CHECK, LLP
Kessler Topaz Meltzer & Check, LLP prosecutes class actions in
state and federal courts throughout the country and around the
world. The firm has developed a global reputation for excellence
and has recovered billions of dollars for victims of fraud and
other corporate misconduct. All of our work is driven by a common
goal: to protect investors, consumers, employees and others from
fraud, abuse, misconduct and negligence by businesses and
fiduciaries. At the end of the day, we have succeeded if the bad
guys pay up, and if you recover your assets. The complaint in this
action was not filed by Kessler Topaz Meltzer & Check, LLP. For
more information about Kessler Topaz Meltzer & Check, LLP please
visit www.ktmc.com.
CONTACT:
Kessler Topaz Meltzer & Check, LLP
James Maro, Jr., Esq.
280 King of Prussia Road
Radnor, PA 19087
(484) 270-1453
info@ktmc.com [GN]
THIELSCH ENGINEERING: Duty Sues Over Failure to Pay Overtime Wages
------------------------------------------------------------------
Darrin Duty, on behalf of himself and all other employees similarly
situated v. Thielsch Engineering, Inc. d/b/a. RISE Engineering and
Brian Kearney, Case No. 22-0450-BLSI (Mass. Commonwealth,
Barnstable Cty., March 1, 2022), is brought concerning the
Defendants’ failure to comply with Massachusetts law relative to
the payment of wages, including premiums for overtime work, in
violation of the Massachusetts Wage Acts (the MWA) overtime
provisions.
This case alleges that it is the Defendants' policy or practice to
reduce its labor costs by classifying certain employees, including
Energy Specialists, as exempt from overtime provisions of the MWA.
This case also alleges that the Defendants violated Massachusetts
law by deducting amounts from wages earned by the Plaintiff due to
customer complaints.
The Plaintiff and the members of the Overtime Class have been
victims of a common policy and plan common perpetrated by
Defendants that has violated their rights under Massachusetts law
by denying them overtime. The Defendants have classified Plaintiff
and the members of the Overtime Class as exempt from Massachusetts
overtime requirements. As part of their regular pattern or
practice, Defendants failed to record all of the hours that
Plaintiff worked, including hours that they worked before and after
their regularly scheduled shifts. The Plaintiff regularly worked
over forty hours in a workweek. All of the work that Plaintiff
performed has of all of the work that they been assigned by
Defendants and/or Defendants have been aware performed. The
Defendants' unlawful conduct described in this Complaint is
pursuant to a corporate policy or practice of attempting to
minimize labor costs by violating the MWA, says the complaint.
The Plaintiff is an employee of the Defendants who worked in
Massachusetts.
Thielsch Engineering provides professional engineering and
consulting services throughout Massachusetts.[BN]
The Plaintiff is represented by:
Benjamin Knox Steffans, Esq.
STEFFANS LEGAL PLLC
7 North Street, Suite 307
Pittsfield, MA 01201
Phone: (413)418-4176
Email: bsteffans@steffanslegal.com
- and -
Stephen Churchill, Esq.
FAIR WORK, P.C.
192 South Street, Suite 450
Boston, MA 02111
Phone: (617) 607-3260
Email: steve@fairworklaw.com
THOMSON REUTERS: Bid to Stay Spurlock Suit OK'd Pending Arbitration
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In the class action lawsuit captioned as BRIAN SPURLOCK et al., v.
THOMSON REUTERS AMERICA CORPORATION et al., Case No.
1:20-cv-09135-JPC-BCM (S.D.N.Y.), the Hon. Judge John P. Cronan
entered an order granting the Moving Defendants' motion to stay
this action pending the outcome of the Arbitration between
Plaintiffs and Imagn.
The parties are directed to file a status letter by June 30, 2022
or within one week of a decision in the Arbitration, whichever is
earlier. The Moving Defendants' motions to dismiss and for summary
judgment are denied without prejudice, the Court says.
The Plaintiffs, who are freelance photographers, commenced this
action against the Defendants for the unauthorized and infringing
use of the Plaintiffs' photographic works under the Copyright Act
of 1976. The Defendants Thomson Reuters America Corporation, Adobe
Inc., and Sipa Press, Inc. move to dismiss the Complaint pursuant
to Federal Rule of Civil Procedure 12(b)(6), or alternatively for
summary judgment pursuant to Rule 56 or to stay this action pending
the outcome of an arbitration commenced by Plaintiffs against
non-party Imagn Content Services, LLC.
A copy of the Court's order dated March 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3CDfQZd at no extra charge.[CC]
THOR INDUSTRIES: Indiana Court Trims Claims in Himan Class Suit
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In the case, JEREMY HIMAN, et al., Plaintiffs v. THOR INDUSTRIES,
INC., et al., Defendants, Case No. 3:21-CV-239 JD (N.D. Ind.),
Judge Jon E. Deguilio of the U.S. District Court for the Northern
District of Indiana, South Bend Division, issued an Opinion and
Order:
a. denying the Plaintiffs' motion to file a surreply;
b. denying the Defendants' motion to compel arbitration; and
c. granting in part and denying in part the Defendants'
motion to dismiss.
I. Introduction
The five named Plaintiffs in the lawsuit each bought an RV between
2015 and 2017, a choice they now wish they hadn't made. Over the
course of their ownership, they each discovered that their RVs were
plagued by an axle defect that created dangerous driving conditions
and forced them to rack up costly repairs. The Plaintiffs decided
to file the putative class action against the manufacturers of
their RVs because they allege that the manufacturers knew about the
defect but intentionally failed to tell consumers about it.
The Defendant Manufacturers have responded to the Plaintiffs'
claims by simultaneously moving to compel arbitration on some of
the claims and moving to dismiss all of the claims if arbitration
is not ordered. The Plaintiffs have filed a motion for leave to
file a surreply to the Defendants' motion to compel arbitration.
II. Background
Defendant Thor Industries and its co-defendants and subsidiaries
DRV LLC, Jayco Corp., and Keystone RV Co. (together "Defendants")
are all involved in the recreational vehicle manufacturing
industry. The five named Plaintiffs all purchased RVs from either
DRV, Jayco, or Keystone between 2015 and 2017. They allege that the
Defendants knowingly marketed faulty RVs without telling customers
that the RVs were defective.
The specific problem at issue stemmed from the Defendants' use of
Lippert axles and axle components in some of the RV models that
they produced. The axles contained a defect that allowed grease to
leak and contaminate each of the RV's brake pads and rotors. The
contaminated brake pads and rotors then created unstable driving
conditions that made it much harder for the RV or vehicle towing
the RV to brake. In addition to degrading the RVs' brake pads and
rotors, the defect often led to excessive wear on the vehicles'
tires.
The Plaintiffs alleged that the Defendants had known about the
defect since 2015 because of public news accounts, complaints made
to the National Highway Traffic Safety Administration, other
publicly available comments, and their own pre-sale durability
testing. Despite what the Plaintiffs allege was the Defendants'
widespread knowledge of the defect, none of the Defendants ever
disclosed the defect to prospective customers or worked with
customers who had already purchased a vehicle with a defective axle
to remedy the problem. Instead, the Defendants continued to
disperse information to make the public, and potential consumers,
believe that the RVs were thoroughly tested and of a high quality.
Each of the Plaintiffs alleged that they would not have purchased
their RVs or would have paid substantially less for them if they
had known about the axle defect and the repair costs they would
have to pay after purchase. They also alleged that the Defendants
refused to provide warranty coverage for the defect despite the
Defendants' knowledge of the problem.
The five named Plaintiffs in the lawsuit are each from a different
state. Each of the Plaintiffs' RVs came with a limited warranty
from the RV's manufacturer. The specifics of what the warranties
agreed to cover are not important at this stage as those aspects of
the warranties are not being disputed in the pending motions. Two
things are important, however.
First, each of the Plaintiffs alleged that the Defendants only
provided them a copy of the limited warranty covering their RV
after they had already signed the paperwork to complete their
purchase of the RV. Because the purchases had already been
completed at the time they got the limited warranties, the
Plaintiffs allege they had no pre-sale ability to bargain about the
terms of the limited warranties. There are no allegations at this
time that any of the Plaintiffs signed any documents indicating
that they were familiar with the contents of the limited warranties
or signed anything assenting to the warranties' terms as part of
their purchase.
Second, each of the warranties imposed certain provisions and
requirements on the purchasers. Jayco's limited warranty, provided
to Mr. Himan, Mr. Polak, and Mr. Prosniewski, required that any
action to enforce the limited warranty or to claim a breach of
implied warranty had to be brought within thirty months of the date
of sale of the RV. DRV's limited warranty, provided to Ms. Beck,
and Keystone's limited warranty, provided to Mr. Fawcett, each
required that any action to enforce the limited warranty or any
claim for breach of implied warranty be brought within 15 months of
the date the RV was purchased. Additionally, the second to last
subsection of Ms. Beck's limited warranty contained language
allowing DRV to opt to have any legal claims related to the
warranty or her purchased RV arbitrated. Ms. Beck's limited
warranty was the only one of the named Plaintiffs' warranties that
contained an arbitration clause.
Because the case is still only a putative class action, the named
Plaintiffs are the only ones who can properly support the claims
they have alleged. The 11 claims they filed include six state
consumer protection law claims drawn from each individual
plaintiff's state, a breach of warranty claim, a breach of implied
warranty claim, a Magnuson-Moss Warranty Act claim, a common law
fraud claim, and an unjust enrichment claim.
III. Discussion
There are currently three motions pending in the case. Two of the
motions, the Defendants' motion to compel arbitration and the
Plaintiffs' motion for leave to file a surreply, are intertwined
and related to Plaintiff Claudette Beck's claims. The way Judge
Deguilio decides those two motions will impact whether the Court
needs to consider the other pending motion, the Defendants' motion
to dismiss. Therefore, Judge Deguilio addresses the motion to
compel and motion to file a surreply first. He then proceeds to
consider the Defendants' motion to dismiss.
1. Arbitration
Judge Deguilio starts his analysis of the two motions touching on
potential arbitration with some background to put the motions, and
particularly the motion for leave to file a surreply, in context.
The only issue in dispute between the Plaintiffs and Defendants
with respect to the Defendants' motion to compel arbitration is
whether Ms. Beck validly agreed to be bound by the arbitration
clause contained in the limited warranty that she received after
she purchased her RV.
The Court and the parties know that now, but the Defendants did not
know that when they initially filed their motion to compel
arbitration. Thus, the Defendants presented arguments in their
initial briefing about why they believed that all three of the main
elements required to compel arbitration could be established in the
case. The Plaintiffs responded to the Defendants' initial brief by
disputing only the first element required to compel arbitration.
They argued that because Ms. Beck only received the limited
warranty containing the arbitration clause after her actual
purchase of the RV, she could not be found to have entered into a
valid agreement to arbitrate based on state contract law.
The Defendants' reply brief, mirroring the Plaintiffs' response
brief, focused only on the first element. The reply brief disagreed
with the Plaintiffs' position by once again arguing that Ms. Beck's
reliance on the limited warranty as a basis for some of her claims
in the lawsuit precluded her from arguing she was not bound by the
arbitration clause contained in that same limited warranty. The
Plaintiffs' motion for leave to file a surreply followed.
a. Motion for Leave to File Surreply
The Plaintiffs, in their motion for leave to file a surreply,
argued that they should be allowed a surreply because the
Defendants' argument in their reply, that Ms. Beck's decision to
bring a limited warranty claim was preclusive no matter when she
received the warranty, constituted a new argument. The Defendants
opposed the Plaintiffs' motion, maintaining that their argument was
both not new and only a response to the arguments and caselaw that
the Plaintiffs themselves raised in their response.
Judge Deguilio opines that courts generally disfavor surreplies,
but they have the discretion to allow them when one is needed to
address new arguments or evidence raised in a reply brief. He will
not exercise that discretion in the case. He agrees with the
Defendants that their argument within their reply brief was not new
and does not create a basis for the Plaintiffs to file a surreply.
Thus, Judge Dequilio does not find that the Defendants raised a new
argument in their reply brief that would warrant granting the
Plaintiffs leave to file a surreply.
b. Motion to Compel Arbitration and Stay Proceedings
Having found a surreply is not appropriate, Judge Deguilio moves to
consider the Defendants' motion to compel arbitration. The sole
dispute between the parties on the motion is whether a valid
arbitration agreement was ever formed between Ms. Beck and
Defendant DRV given that Ms. Beck only received the limited
warranty containing the arbitration clause after she purchased her
RV.
Judge Deguilio finds that the Defendants have not satisfied their
burden, as the parties seeking to compel arbitration, to show that
there is a valid written agreement to arbitrate. Without a finding
that Ms. Beck formed a valid agreement to arbitrate, the Court
cannot compel Ms. Beck to arbitrate her claims.
2. Motion to Dismiss
Having found no basis to compel arbitration of Ms. Beck's claims,
Judge Deguilio moves on to consider the Defendants' motion to
dismiss all eleven of the Plaintiffs' claims. His analysis proceeds
claim by claim.
a. Claim 1 - Kansas Consumer Protect Act
The Plaintiffs' first claim alleged a violation of the Kansas
Consumer Protection Act ("KCPA"). The KCPA prohibits suppliers from
engaging in deceptive acts or practices in connection with a
consumer transaction, including misrepresenting the quality of
products being sold. The parties did not dispute that Ms. Beck is
the only named plaintiff with standing to bring a claim under the
KCPA. The Defendants argued that Ms. Beck's KCPA claim should be
dismissed because she brought the claim outside the relevant
statute of limitations period and because she failed to
sufficiently plead the claim's required elements.
Judge Deguilio agrees with the Defendants that Ms. Beck brought her
claim outside the relevant statute of limitations period. The
pleadings demonstrate, and the Plaintiffs' briefing on the motion
to dismiss confirms, that Ms. Beck's KCPA claim and damages stem
from her allegation that the Defendants' failure to inform her of
the axle defect leading up to and "at the time of sale" qualifies
as "a fraudulent omission under the KCPA." The Plaintiffs' briefing
also confirmed that Ms. Beck is alleging damages that include her
need to pay out of pocket for the repairs the axle defect made
necessary as well as to remedy the fact that she "overpaid for the
vehicle at the time of sale."
Given those allegations and arguments, there is no factual dispute
to resolve or doubt that Ms. Beck missed the relevant statute of
limitations period for a KCPA claim. Because Ms. Beck failed to
file her KCPA claim within three years of her purchase, she filed
outside the statute of limitations period and her claim must be
dismissed.
b. Claim 2 - Illinois Consumer Fraud and Deceptive Business
Practices Act
The Plaintiffs' next claim alleged a violation of the Illinois
Consumer Fraud and Deceptive Business Practices Act ("ICFA"). The
parties do not dispute that Mr. Prosniewski is the only named
plaintiff with standing to bring an ICFA claim. The Defendants
raised two challenges to Mr. Prosniewski's ICFA claim. First, they
argued that he filed his claim outside the relevant statute of
limitations period. And second, they alleged that he failed to
plead his claim with sufficient particularity given the heightened
pleading standard that applies to an ICFA claim.
Judge Deguilio finds that he is not in a position to resolve that
dispute at this stage of the proceedings and thus cannot find Mr.
Prosniewski's claim should be dismissed on statute of limitations
grounds. He aso finds that Mr. Prosniewski met the heightened, Rule
9(b) standard. Mr. Prosniewski has properly alleged the who, what,
when, where, and how of his claim to satisfy the Rule 9(b)
standard. Thus, Mr. Prosniewski's omission allegations satisfy the
heightened pleading standard and that Mr. Prosniewski's ICFA claim
should therefore not be dismissed.
c. Claim 3 - Indiana Deceptive Consumer Sales Act
The Plaintiffs' third claim alleged that the Defendants violated
the Indiana Deceptive Consumer Sales Act ("IDCSA"), which prohibits
deceptive acts, omissions, and practices in connection with
consumer transactions. The parties do not dispute that Mr. Himan is
the only named plaintiff who could bring an IDCSA claim. The
Defendants raised the same statute of limitations and insufficient
pleading arguments in relation to Mr. Himan's IDCSA claim that they
did with Mr. Prosniewski's ICFA claim.
Judge Deguilio opines that as was true for the ICFA claim, any
resolution of the dispute over the time at which the statute of
limitations should be found to have started to run is inappropriate
at the dismissal stage as it would at a minimum require the Court
to view facts outside the pleadings. He also opines that Mr. Himan
has alleged the required who, what, when, where, and how of the
offense to be able to proceed with his IDCSA claim. Thus, Mr.
Himan's pleadings related to his omission-based IDCSA claim satisfy
the heightened Rule 9(b) standard and that his IDSCA claim should
not be dismissed.
d. Claim 4 - Wisconsin Deceptive Trade Practices Act
The Plaintiffs' fourth claim alleged that the Defendants violated
the Wisconsin Deceptive Trade Practices Act ("WDTPA"). The parties
did not dispute that Mr. Polak is the only named plaintiff who
could sustain a claim under the WDTPA. The Defendants raised the
same two issues with Mr. Polak's WDTPA claim as they did with the
other plaintiffs' consumer protection statute claims, namely that
Mr. Polak filed his claim outside the designated statute of
limitations period and additionally failed to sufficiently plead
his claim under the heightened pleading standard required for a
WDTPA claim. Because Judge Deguilio finds that Mr. Polak filed
outside the relevant statute of limitations period, he only
considers the parties' statute of limitations arguments.
He finds that Mr. Polak stopped being a member of the "public" for
purposes of his claim when he purchased his RV in February 2016 and
any future alleged misrepresentations or omissions could not help
to support his claim. He thus finds that the continuing tort theory
does not apply to circumvent the statute of limitations period on
Mr. Polak's claim and that the claim must thus be dismissed.
e. Claims 5 and 6 - New York General Business Law
The Plaintiffs' fifth and sixth claims alleged that the Defendants
violated two New York consumer protection laws. The first of the
two claims alleged a violation of a New York law that makes
unlawful "deceptive acts or practices in the conduct of any
business, trade or commerce." The second of the two claims alleged
a violation of a New York law that makes unlawful "false
advertising in the conduct of any business, trade or commerce." The
parties did not dispute that Mr. Fawcett is the only named
plaintiff who could bring a claim under either statute. The
Defendants raised the same two statute of limitations and
insufficient pleading arguments in response to these claims from
Mr. Fawcett.
Judge Deguilio only discusses the statute of limitations arguments
because application of the statute of limitations is dispositive
for both claims. He holds that the only fraud, misrepresentation,
or deception that the Plaintiffs alleged with respect to Mr.
Fawcett is Mr. Fawcett's being misled by Defendant Keystone's
marketing materials, authorized dealers, and representatives prior
to purchasing the RV. He takes those allegations as true at this
stage, but it notes that those allegations all form the basis of
Mr. Fawcett's consumer protection claims. Therefore, they cannot
also form the basis for equitable tolling of the statute of
limitations on those claims.
Further, the only other allegation of concealment in support of
tolling that the Plaintiffs made was that "any applicable
statute(s) of limitations has been tolled by Defendants' knowing
and active concealment and denial of the facts alleged." That
generalized allegation of fraudulent concealment related to every
claim in the complaint is not enough to support equitable tolling
of the specific New York claims. Judge Deguilio thus finds
equitable tolling does not apply to Mr. Fawcett's claims and that
the claims must be dismissed because they were filed outside the
relevant statute of limitations periods.
f. Claims 7 and 8 - Magnuson-Moss and Breach of Express Warranty
The Plaintiffs' next two claims alleged violations of the
Magnuson-Moss Warranty Act ("MMWA") and breaches of the express
warranties the Defendants provided to the named plaintiffs along
with the Plaintiffs' RVs. The Defendants' motion to dismiss did not
address the substance of the claims but instead argued that the
claims should be dismissed because the Plaintiffs each waited too
long to bring them based on statute of limitations language
contained in the warranties.
Judge Deguilio opines that the Plaintiffs are correct that to be
enforceable, a limitation within a warranty "must have actually
been part of the agreement" that the parties entered. And because
the Plaintiffs all claim that they did not receive their warranties
until after they purchased their RVs, and the Court must accept the
Plaintiffs' allegations as true at this stage, he finds there is a
factual issue as to whether the warranties' shortening of the
statute of limitations under the circumstances specific to each
Plaintiff could justify a finding of procedural unconscionability.
Judge Deguilio would have to rely on information outside of the
pleadings, including facts specific to each plaintiff's
contracting, to resolve the issue of whether the terms of the
warranties were procedurally unconscionable. Those factual issues,
he says, are not appropriate for the Court to resolve at this
dismissal stage, so he cannot find dismissal proper on statute of
limitations grounds at this time.
Judge Deguilio notes that the Defendants cited to past cases that
found plaintiffs' unconscionability arguments lacking under similar
circumstances. He does not find those cases dispositive on
procedurally unconscionability at this juncture though. Each of the
cases either did not address procedural unconscionability
specifically or were decided at the summary judgment stage and thus
had more facts on which to rely. They thus may be more persuasive
during subsequent stages of the lawsuit but are not enough at this
time to convince the Court that dismissal of the Plaintiffs' MMWA
and breach of warranty claims is appropriate.
g. Claim 9 - Breach of Implied Warranty
The next claim the Plaintiffs brought was a claim for breach of
implied warranty. The Defendants raised the same statute of
limitations argument in support of dismissing this claim that they
did in response to the breach of limited warranty and MMWA claims.
The Plaintiffs' countered with the same response that the
warranties were substantively and procedurally unconscionable.
Judge Deguilio's decision on this claim mirrors its decision on the
prior warranty-based claims. He finds that dismissal is
inappropriate at this time only because of the Plaintiffs'
continued allegations that the terms of the warranties shortening
the statute of limitations periods were procedurally
unconscionable.
h. Claim 10 and 11 - Common Law Fraud and Unjust Enrichment
The final two claims the Plaintiffs brought were for common law
fraud and unjust enrichment. The Defendants' only argument against
these claims was that the claims "are little more than thinly
veiled attempts to circumvent the terms" of the limited warranties,
including their limitations periods, and thus should be dismissed
for the same reasons as the warranty claims. As an initial matter,
Judge Deguilio has not found that the warranty claims should be
dismissed, which on its own defeats the Defendants' argument. But
even if the Court had dismissed the warranty claims, the
Defendants' argument would still fail.
First, the Defendants failed to provide any support for their
argument that the Plaintiffs' unjust enrichment claim should be
treated as a veiled breach of contract claim. Second, while the
cited cases did address common law fraud claims, the Defendants'
argument is based on what appears to be a flawed reading of the
pleadings. Further, the Plaintiffs' intention to premise the fraud
claim on the Defendants allegedly inducing individuals to buy a
faulty product is sufficient, without consideration of the limited
warranties, to support a fraud claim. Judge Deguilio thus finds the
Plaintiffs' fraud claim should not be dismissed.
IV. Conclusion
For the foregoing reasons, Judge Deguilio denied the Plaintiffs'
motion for leave to file a surreply and denied the Defendants'
motion to compel arbitration. He additionally granted the
Defendants' motion to dismiss with respect to Counts 1, 4, 5, and 6
and denied the Defendants' motion to dismiss with respect to Counts
2, 3, 7, 8, 9, 10 (mislabeled in the Complaint as "Count VIII"),
and 11.
A full-text copy of the Court's March 8, 2022 Opinion & Order is
available at https://tinyurl.com/2p8vu7m6 from Leagle.com.
TONY'S FINER: State Automobile's Bid for Summary Judgment Denied
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In the case, STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, Plaintiff
v. TONY'S FINER FOODS ENTERPRISES, INC., TONY'S FINER FOODS NO. 6,
INC., TONY'S FINER FOODS NO. 9, INC., and CHARLENE FIGUEROA,
individually and on behalf of all others similarly situated,
Defendants, Case No. 20-cv-6199 (N.D. Ill.), Judge Steven C. Seeger
of the U.S. District Court for the Northern District of Illinois,
Eastern Division, denied the Plaintiff's motion for summary
judgment.
I. Background
Tony's is a family-owned and family-operated grocery store chain
with 16 locations in Chicagoland. The case involves three relatives
in the corporate family: (1) Tony's Finer Foods Enterprises, Inc.,
(2) Tony's Finer Foods No. 6, Inc., and (3) Tony's Finer Foods No.
9, Inc. (collectively, "Tony's").
In December 2018, Charlene Figueroa, a former employee, filed suit
against Tony's in state court under the Biometric Information
Privacy Act ("BIPA"). She worked for Tony's from March 2017 to
September 2018.
According to the state court complaint, Tony's takes the
fingerprints of each employee that it hires. Employees use their
fingerprints to clock in and out of work. That practice, according
to Figueroa, violates BIPA.
Tony's received service of process on Jan. 8, 2019, and filed an
appearance within a week. It notified its insurance broker,
Assurance Agency, of the existence of the Figueroa lawsuit.
Assurance responded that "all applicable insurance carriers would
be provided with notice."
The parties don't reveal when, exactly, Tony's notified its broker.
But it was sometime between January 2019 (when Tony's received
service of process) and March 2019 (when Assurance started giving
notice to insurers).
Tony's had purchased a number of insurance policies over the years.
One of the policies was a commercial general liability insurance
policy from State Automobile. The policy ran for one year, starting
in March 2013, and Tony's renewed it twice. So Tony's had coverage
from March 2013 through March 2016.
But Assurance Agency did not provide notice to State Automobile
about the state court lawsuit against Tony's, at least not right
away. Maybe it figured that there was no coverage under a policy
covering 2013 to 2016 for claims by an employee who joined in 2017.
Or maybe it thought that there was no coverage for BIPA. Or maybe
it was an oversight.
The parties don't reveal the backstory. The key point is that
Tony's told the insurance broker about the state court lawsuit, and
the broker didn't give notice to State Automobile (again, at least
not right away, in 2019).
Instead, in March 2019, Assurance provided notice to one or more
insurance carriers for Tony's under different policies.
Specifically, those policies included (1) a general liability
insurance policy for 2017-18; (2) employment practices liability
policies (plural) for 2018-20; and (3) cyber liability insurance
policies for 2018-20.
In June 2019, Tony's filed a motion to dismiss the state court
case, arguing that it was barred by BIPA's statute of limitations.
In December 2019, the Illinois court denied the motion to dismiss.
Not much happened in the state court case for the next three
months. But in March 2020, the state court stayed the case to await
a decision in a related BIPA case in an Illinois appellate court.
In March 2020, an Illinois appellate court issued its decision in
West Bend Mutual Insurance Co. v. Krishna Schaumburg Tan, Inc.,
2020 IL App. (1st) 191834, 445 Ill.Dec. 388, 166 N.E.3d 818 (2020).
That holding clarified the landscape of coverage for BIPA claims.
The court held, in relevant part, that providing fingerprinting
data to third parties is a form of "publication" within the meaning
of a general liability policy. As a result, the insurer in that
case had a duty to defend the employer who took the fingerprints.
In June 2020, Tony's got wind of the decision, and asked its broker
about it. The Figueroa lawsuit covered the same issues as West
Bend. So, presumably, Tony's wanted to make sure that its general
liability providers knew about the underlying action, and explore
the possibility of a duty to defend. Assurance, in turn, said that
it would report the underlying action to any other general
liability providers.
On Sept. 8, 2020, Tony's tendered its defense in the underlying
action to State Automobile. The insurer accepted the tender from
that date forward subject to a reservation of rights. Putting that
date in perspective, State Automobile received notice in September
2020, meaning 20 months after Tony's received service of process in
January 2019.
State Automobile responded by filing the case at hand, advancing
six counts. Five counts request a declaratory judgment that it does
not have a duty to defend Tony's in the underlying action in state
court. The other count requests reimbursement for any defense costs
incurred.
As an aside, one of the unexplained mysteries in the filings is why
a policy that ran from 2013 to 2016 could cover claims by an
employee who joined the company in 2017. Maybe it has something to
do with the fact that Figueroa brought a class action. That is,
maybe the proposed class and class period include claims by members
from 2016 or earlier. Another possibility is that it has something
to do with BIPA's retention schedule provision, which has a
look-back period of three years from the company's last contact
with the employee. And here, Figueroa left the company in 2018, so
the three year period stretches back to 2015.
But the parties don't tell that part of the story. It's not clear
why a policy from 2013 to 2016 would cover an employee who joined
in 2017. Who knows. The key point is that State Automobile is not
arguing that a policy covering 2013 to 2016 cannot apply to an
employee who joined the company in 2017 because she joined after
the end of the policy period. It's not an issue in the motion, so
the Court will put it to the side.
Turning back to the story, the state court continued a
start-and-stop approach. Seven months later, in October 2020, the
state court lifted the stay, but it didn't last long. Four months
later, in February 2021, the state court stayed the case for a
second time. It put the case on ice because a related case is
currently before the Illinois Supreme Court.
The state court has stayed the case twice, and the second stay
remains in effect. Or, at the very least, the parties have not
notified this Court that the stay was lifted.
Since service of process in January 2019, the state case has been
stayed much of the time. The case was stayed from March 2020 to
October 2020 (i.e., seven months), and again from February 2021 to
the present (i.e., 13 months). That's roughly 20 out of 39 months
-- about half the time.
Looking at it from a different angle, the case has been stayed much
of the time since the state court denied the motion to dismiss in
December 2019 (i.e., 20 months out of the 28 months from December
2019 to March 2022).
In light of the two stays, the state court case is still in the
early stages. In fact, the pleadings aren't even complete. Tony's
has not yet filed an answer. It has not produced discovery, and has
not briefed the issue of class certification. Tony's also has not
settled, or offered to settle, the state court case.
In the case before the Court, State Automobile moved for summary
judgment. It advanced a number of arguments, but since then, some
of them have fallen by the wayside.
The insurer originally put forward four arguments for summary
judgment, but the Illinois Supreme Court's opinion in West Bend
Mutual Insurance Co. v. Krishna Schaumburg Tan, Inc., 2021 IL
125978 (2021), rendered two of them meritless. State Automobile, in
turn, withdrew those two arguments.
Two theories remain. State Automobile argues that the
employment-related practices exception in the insurance policies
excludes coverage. In the alternative, it maintains that there is
no coverage because Tony's breached the notice condition.
II. Discussion
State Automobile makes two arguments against coverage. The first is
about an exclusion, and the second is about notice.
A. The Exclusion for Employment-Related Practices
The parties basically have a dispute about whether a claim under
BIPA is a claim about an employment-related practice within the
meaning of the policies. The only question is whether the state
court case is about an injury arising out of "employment-related
practices."
Under State Automobile's reading, the exclusion would cover just
about any and all claims by employees. And if that's the case, one
wonders why the text did not take the direct approach. It would
have been easy to write an exclusion saying that it does not cover
any claims by employees, period. The exclusion could have said:
"This insurance does not apply to 'Personal and advertising injury'
to an employee for anything that happens at work."
Judge Seeger concludes that the BIPA claims do not fall within the
exclusion for employment-related practices. He says, the policy
included a list with three subparts. And the third subpart includes
a list of examples that share a theme. The crafting of the language
suggests that it covers a subset of claims brought by employees.
Other courts in this district have confronted the same issue under
policies with the same language. They have come to different
conclusions. Using a finger to clock-in and clock-out is a practice
or a policy, in a colloquial sense. But it isn't the type of
practice or policy envisioned by the full text of the provision. To
the extent that there is any ambiguity, the tie goes to the
insured.
B. Notice
The next argument is about notice under the policy. State
Automobile contends that Tony's breached the notice condition of
the policy, thus severing the duty to defend.
The policy requires Tony's to notify State Automobile "as soon as
practicable." Under Illinois law, "as soon as practicable" means
"within a reasonable time." An insured who knows a suit against it
exists but allows a considerable length of time to pass before
notifying the insurer does not automatically lose coverage under
the insurance policy, even one which includes the 'as soon as
practicable' provision only if the insured's delay in notifying the
insurer is justifiable.
Overall, Judge Seeger holds that the facts pull in different
directions. The language of the policy, the passage of time, and
the sophistication of the insured suggest that Tony's waited too
long. But State Automobile did not suffer any apparent harm from
the passage of time, so maybe "no harm, no foul" applies. In the
end, a jury needs to sort it out and decide whether notice came too
late.
III. Conclusion
For the foregoing reasons, Judge Seeger denied State Automobile's
motion for summary judgment.
A full-text copy of the Court's March 8, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/3wz8nvcd from
Leagle.com.
TRUSTMARK NATIONAL: Rotstain Suit Removed to S.D. Texas
-------------------------------------------------------
The case styled as Peggy Roif Rotstain, Guthrie Abbott, Catherine
Burnell, Steven Queyrouze, Jaime Bornstein, Juan C. Olano, Sarah
Elson-Rogers, Salim Estefenn Uribe, Ruth Alfille de Penhos, Gabriel
Suarez, Diana Suarez, v. Trustmark National Bank, The
Toronto-Dominion Bank, et al, Case No. 3:09-cv-02384, was removed
from the U.S. District Court for the Northern District Of Texas, to
the U.S. District Court for the Southern District Of Texas on March
10, 2022.
The District Court Clerk assigned Case No. 4:22-cv-00800 to the
proceeding.
The nature of suit is stated as Other Fraud.
Trustmark -- https://www.trustmark.com/ -- is a diversified
financial services company, providing banking, wealth management,
and insurance solutions across our footprint.[BN]
The Plaintiffs are represented by:
Peter D. Morgenstern, Esq.
Joshua E Abraham, Esq.
BUTZEL LONG
477 Madison Avenue, Ste 1230
New York, NY 10022
Phone: (212) 818-1110
Email: morgenstern@butzel.com
- and -
Benjamin D Reichard, Esq.
James R Swanson, Esq.
Jesse Cobb Stewart, Esq.
Lance C McCardle, Esq.
Molly L Wells, Esq.
FISHMAN HAYGOOD LLP
201 St Charles Ave., Ste 4600
New Orleans, LA 70170
Phone: (504) 586-5252
Email: breichard@fishmanhaygood.com
jswanson@fishmanhaygood.com
mwells@fishmanhaygood.com
- and -
Gregory A Blue, Esq.
Rachel K Marcoccia, Esq.
MORGENSTERN & BLUE, LLC
885 Third Avenue
New York, NY 10022
Phone: (212) 750-6776
Email: gblue@mfbnyc.com
rmarcoccia@mfbnyc.com
- and -
Paul B Lackey, Esq.
LACKEY HERSHMAN LLP
3102 Oak Lawn Ave., Ste. 777
Dallas, TX 75219
Phone: (214) 560-2201
Fax: (214) 560-2203
- and -
Scott Stuart Hershman, Esq.
STINSON LEONARD STREET LLP
3102 Oak Lawn Ave., Ste. 700
Dallas, TX 75219-4241
Phone: (214) 560-2201
Email: scott.hershman@stinson.com
- and -
David Joseph Ranzenhofer, Esq.
FRIEDMAN KAPLAN SEILER & ADELMAN LLP
7 Times Square, Ste0 28th Floor
New York, NY 10036
Phone: (212) 833-1100
Email: dranzenhofer@fklaw.com
- and -
Edward C Snyder, III, Esq.
Castillo Snyder PC
700 N. St. Mary's Street, Ste0 405
San Antonio, TX 78205
Phone: (210) 630-4200
Fax: (210) 630-4210
Email: esnyder@casnlaw.com
The Defendants are represented by:
Robin Christopher Gibbs, Esq.
Ashley McKeand Kleber, Esq.
Barrett H Reasoner, Esq.
Colin C Pogge, Esq.
Conor Paul McEvily, Esq.
Jeffrey C Kubin, Esq.
Larston Bruce Baldree, Esq.
Michael Robert Absmeier, Esq.
Robert Joseph Madden, Esq.
Scott A Humphries, Esq.
GIBBS & BRUNS LLP
1100 Louisiana St., Ste. 5300
Houston, TX 77002
Phone: (713) 650-8805
Email: rgibbs@gibbsbruns.com
akleber@gibbsbruns.com
breasoner@gibbsbruns.com
cpogge@gibbsbruns.com
cmcevily@gibbsbruns.com
jkubin@gibbsbruns.com
mabsmeier@gibbsbruns.com
rmadden@gibbsbruns.com
shumphries@gibbs-bruns.com
- and -
Rodney Acker, Esq.
FULBRIGHT & JAWORSKI LLP
2200 Ross Avenue, Suite 2800
Dallas, TX 75201-2784
Phone: (214) 855-7466
- and -
Courtney A Welshimer, Esq.
Eamonn W Campbell, Esq.
Joshua Polster, Esq.
Katherine Ann Helm, Esq.
Kavitha Sivashanker, Esq.
Linton Mann, III, Esq.
Lynn K Neuner, Esq.
Melissa Vallejo, Esq.
Meredith D Karp, Esq.
Peter E Kazanoff, Esq.
Raquel E Villagra, Esq.
Stephen J Digregoria, Esq.
SIMPSON THACHER & BARLETT LLP
425 Lexington Ave
New York, NY 10017
Phone: (212) 455-2000
Fax: (212) 455-2502
- and -
Ellen B Sessions, Esq.
James V. Leito, IV, Esq.
NORTON ROSE FULBRIGHT US LLP
2200 Ross Ave., Ste. 3600
Dallas, TX 75201-7932
Phone: (214) 855-7465
Fax: (214) 855-8200
Email: ellen.sessions@nortonrosefulbright.com
james.leito@nortonrosefulbright.com
- and -
James Eloi Doyle, Esq.
DOYLE RESTREPO ET AL
Suite 2300
Houston, TX 77002
Phone: (713) 228-5100
Fax: (713) 228-6138
Email: jdoyle@drhrlaw.com
- and -
Jeremy S. Byrum, Esq.
MCGUIRE WOODS LLP
800 East Canal St.
Richmond, Va 23219
Phone: (804) 775-4305
Email: jbyrum@mcguirewoods.com
- and -
Mark Watkins Kinghorn, Esq.
Peter J Covington, Esq.
MCGUIREWOODS LLP
201 North Tryon Street, Suite 3000
Charlotte, NC 28202
Phone: (704) 343-2000
Fax: (704) 343-2300
- and -
Nicholas Barry Lewis, Esq.
MCGUIRE WOODS
2001 K Street NW, Suite 400
Washington, DC 20006
Phone: (202) 857-1771
Fax: (202) 828-3306
- and -
Robert Plotkin, Esq.
MCGUIRE WOODS LLP
1050 Connecticut Ave. NW, Ste. 1200
Washington, DC 20036
Phone: (202) 857-1750
Fax: (202) 857-1737
Email: rplotkin@mcguirewoods.com
ULTRACOR INC: Hobbs Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Ultracor, Inc. The
case is styled as Alexandra Hobbs, on behalf of herself and all
other persons similarly situated v. Ultracor, Inc., Case No.
1:22-cv-02057 (S.D.N.Y., March 11, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Ultracor -- https://www.ultracorinc.com/ -- engineers and
manufactures composite honeycomb core materials.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: nyjg@aol.com
michael@gottlieb.legal
UNITED COLLECTION: Kola Files FDCPA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against United Collection
Bureau, Inc. The case is styled as Age Kola, individually and on
behalf of all others similarly situated v. United Collection
Bureau, Inc., Case No. 7:22-cv-01976 (S.D.N.Y., March 9, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
United Collection Bureau Inc. -- https://ucbinc.com/ -- provides
debt collection and accounts receivable management services to
creditors.[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
UNITED STATES: Nakka Appeals Dismissal of Immigration Visa Suit
---------------------------------------------------------------
Plaintiffs Nagendra Kumar Nakka, et al., are taking an appeal from
a court ruling dismissing the lawsuit entitled NAGENDRA KUMAR
NAKKA, NITHEESHA NAKKA, SRINIVAS THODUPUNURI, RAVI VATHSAL
THODUPUNURI, GIRIJESH THODUPUNURI, RAJESHWAR ADDAGATLA, VISHAL
ADDAGATLA, SATYA VENU BATTULA, SANDEEP BATTULA, SIVA PEDDADA,
PAVANI PEDDADA, VENKATA PEDDADA, MIRIAM EDWARDS-BUDZADZIJA, ABIGAIL
EDWARDS, individually and on behalf of all others similarly
situated, Plaintiffs v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES;
and U.S. DEPARTMENT OF STATE, Defendants, Case No. 3:19-cv-2099-YY,
filed in the U.S. District Court for the District of Oregon,
Portland.
The Plaintiffs in the putative class action are a group of Indian
nationals who have enjoyed long-term residency in the United States
as beneficiaries of temporary work visas and who have been seeking
permanent residency in the United States through employment-based
immigration visas, and their children who are derivative visa
beneficiaries.
In 2017, Defendants U.S. Citizenship and Immigration Services
(USCIS) and the U.S. Department of State (DOS) implemented a new
national origin-based visa bulletin chart for the distribution of
visas, which Plaintiffs allege threaten to "age out" the children
of high-volume immigrant countries such as India, in violation of
the Child Status Protection Act (CSPA). The Plaintiffs' First
Amended Complaint (FAC) alleges a Fifth Amendment equal protection
claim (First Claim) and an Administrative Procedure Act (APA) claim
(Second Claim), primarily relating to the Defendants'
interpretation or implementation of the CSPA.
On May 1, 2020, the Defendants move to dismiss, pursuant to Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure,
arguing, respectively, a lack of subject-matter jurisdiction and
failure to state a claim.
On May 12, 2021, Judge Michael H. Simon of the District of Oregon
issued an Order (i) denying without prejudice the Defendants'
Motion to Dismiss; and (ii) denying without prejudice the
Plaintiffs' pending motion to amend and allowing them leave to file
a new Second Amended Complaint without the necessity of a motion.
The Plaintiffs and the Defendants filed timely objections and
timely responded to each other's objections.
The Plaintiffs filed a motion for leave to file a Second Amended
Complaint on May 20, 2021, based on new facts that occurred after
the filing of the First Amended Complaint, including facts relating
to the alleged derivative visa beneficiaries. In light of the
Plaintiffs' motion, the Court denied the Defendants' motion to
dismiss without prejudice and declined to adopt Findings and
Recommendation entered by Magistrate Judge Youlee Yim You as moot.
It denied the Plaintiffs' motion for leave to amend, and granted
the Plaintiffs leave to file a new Second Amended Complaint without
the necessity of a motion and with the benefit of both Judge You's
Findings and Recommendation and this ruling.
On June 10, 2021, the Defendants filed a second motion to dismiss
for failure to state a claim and a second motion to dismiss for
lack of jurisdiction, which the Court granted on January 27, 2022
through an Order entered by Judge Simon. The Court further entered
Judgment dated February 11, 2022, based on the Order, dismissing
the case without prejudice.
The Plaintiffs now seek a review of this decision.
The appellate case is captioned as Nagendra Nakka, et al. v. USCIS,
et al., Case No. 22-35203, in the United States Court of Appeals
for the Ninth Circuit, filed on March 7, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellants Nagendra Kumar Nakka, et al. Mediation
Questionnaire was due on March 14, 2022;
-- Transcript shall be ordered by April 4, 2022;
-- Transcript is due on May 3, 2022;
-- Appellants Nagendra Kumar Nakka, et al. opening brief is due
on June 13, 2022;
-- Appellees United States Citizenship and Immigration Services
and United States Department of State answering brief is due on
July 12, 2022; and
-- Appellants' optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiffs-Appellants NAGENDRA KUMAR NAKKA, NITHEESHA NAKKA,
SRINIVAS THODUPUNURI, RAVI VATHSAL THODUPUNURI, RAJESHWAR
ADDAGATLA, VISHAL ADDAGATLA, SATYA VENU BATTULA, SANDEEP BATTULA,
SIVA PEDDADA, PAVANI PEDDADA, VENKATA PEDDADA, ABIGAIL EDWARDS, and
MIRIAM EDWARDS-BUDZADZIJA, individually and on behalf of all others
similarly situated, are represented by:
Brent Renison, Esq.
PARRILLI RENISON, LLC
610 SW Broadway, Suite 505
Portland, OR 97205
Telephone: (503) 597-7190
E-mail: brent@entrylaw.com
Defendants-Appellees UNITED STATES CITIZENSHIP AND IMMIGRATION
SERVICES and UNITED STATES DEPARTMENT OF STATE are represented by:
Victor Manuel Mercado-Santana, Esq.
DOJ - U.S. DEPARTMENT OF JUSTICE
P.O. Box 878, Benjamin Franklin Station
Washington, DC 20044
Telephone: (202) 307-0340
E-mail: victor.m.mercado-santana@usdoj.gov
UNITED STATES: Seeks to Stay Response on Class Action Certification
-------------------------------------------------------------------
In the class action lawsuit captioned as DOMINIQUE DAVIS, et al. v.
UNITED STATES PAROLE COMMISSION, et al., Case No. 1:20-cv-02897-APM
(D.D.C.), the Defendants ask the Court to enter an order granting
their motion to stay their response to plaintiffs' motion for class
action certification.
The Defendants contend that granting their motion to stay further
briefing on the class certification motion should cause no
prejudice to Plaintiffs. They maintain that, should the sole named
plaintiff be released during the pendency of the merits briefing,
Defendants would not argue that the case is moot on that basis and
would support a motion by Plaintiffs to amend the complaint to add
another plaintiff or a motion to lift the stay on the class
certification motion to determine whether any other plaintiffs
exist.
The Defendants, United States Parole Commission and Patricia K.
Cushwa, in her official capacity, respectfully move to stay
Defendants' time to respond to Plaintiffs' motion for class action
certification until 30 days after the Court rules on Defendants'
forthcoming motion to dismiss, which is due to be filed on or
before April 7, 2022, provided that a response remains necessary at
that time.
The Plaintiffs filed an amended complaint on February 7, 2022,
naming a new plaintiff, since the first two plaintiffs are no
longer in Parole Commission custody, and proposing a new class. The
Defendants requested an extension of their deadline to respond to
Plaintiffs' Amended Complaint, and the Court granted the extension
in a minute order, setting the deadline at Thursday, April 7, 2022.
On or before that date, the Defendants intend to file a motion to
dismiss that addresses the merits of the claims that Plaintiffs
raise.
On February 24, 2022, Plaintiffs filed a motion to certify their
proposed class.
The United States Parole Commission is the parole board responsible
for granting or denying parole to, and supervising the parole
releases of, incarcerated individuals who fall under its
jurisdiction.
A copy of the Plaintiffs' motion to certify class dated March 2,
2022 is available from PacerMonitor.com at https://bit.ly/3KOHPs4
at no extra charge.[CC]
The Defendants are represented by:
Laurel H. Lum, Esq.
UNITED STATES DEPARTMENT OF JUSTICE
CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
1100 L St. NW
Washington, DC 20005
Telephone: (202) 305-8177
Facsimile: (202) 616-8470
E-mail: laurel.h.lum@usdoj.gov
UNITED STATES: Suit Seeks to Certify Air Force Reserve Class
------------------------------------------------------------
In the class action lawsuit captioned as HUNTER DOSTER, et. al. On
behalf of themselves and others similarly situated, v. Hon. FRANK
KENDALL, et. al., Case No. 1:22-cv-00084-MWM (S.D. Ohio), the
Plaintiffs ask the Court to enter an order certifying action to
proceed as a class action on behalf of the class defined as:
"All active-duty, and active reserve members of the United
States Air Force who: (i) submitted a religious
accommodation request to the Air Force from the Air Force's
COVID-19 vaccination requirement, where the request was
submitted or was pending, from September 1, 2021 to the
present; (ii) were confirmed as having had a sincerely held
religious belief by or through Air Force Chaplains; and
(iii) either had their requested accommodation denied or
have not had action on that request."
This case involves claims under the First Amendment and RFRA, for
Air Force Members, all of whom submitted religious accommodation
requests to the Air Force's COVID-19 vaccination policy, all of
whom had Air Force Chaplains confirm the sincerity of their
beliefs, and all of whom have either had their accommodation
requests be denied, or who had their requests not be acted on, in
contravention of Department of Defense Instructions.
A copy of the Plaintiffs' motion to certify class dated March 2,
2022 is available from PacerMonitor.com at https://bit.ly/3IelUsv
at no extra charge.[CC]
The Plaintiffs are represented by:
Christopher Wiest, Esq.
CHRIS WIEST, ATTY AT LAW, PLLC
25 Town Center Blvd, Suite 104
Crestview Hills, KY 41017
Telephone: (513) 257-1895
Facsimile: (859) 495-0803
E-mail: chris@cwiestlaw.com
- and -
Aaron Siri, Esq.
Elizabeth Brehm, Esq.
Wendy Cox, Esq.
SIRI GLIMSTAD, LLP
200 Park Avenue, 17th Floor
New York, NY 10166
Telephone: (212) 532-1091
Facsimile: (646) 417-5967
E-mail: aaron@sirillp.com
- and -
Thomas Bruns, Esq.
4750 Ashwood Drive, STE 200
Cincinnati, OH 45241
E-mail: tbruns@bcvalaw.com
Telephone: 513-312-9890
UNITED STATES: Thomson Correctional Employees Can Join COVID Suit
-----------------------------------------------------------------
Shaw Local News Network reports that federal employees who have
been exposed to COVID-19 in the workplace have joined a
class-action lawsuit brought on by American Federation of
Government Employees and the law firm of Kalijarvi, Chuzi, Newman
and Fitch, a representative of Thomson prison workers union said on
March 11.
Federal prison workers at the United States Penitentiary in
Thomson, can join the suit said Jonathan Zumkehr, president of
Local 4070. The penitentiary is among several federal prisons who
have been severely affected by COVID-19 outbreaks.
A new website has been created that allows employees to join the
lawsuit, which is the first case filed on behalf of workers arising
out of the pandemic. Although the lawsuit covers all federal
employees who were exposed to COVID-19 while on the job, the court
requires each person to sign up individually. The lawsuit seeks 25%
hazardous duty pay for exposed General Schedule employees and 8%
environmental differential pay for exposed Wage Grade employees.
Any federal employees who wish to sign up for the lawsuit, visit
www.hazardpaylawsuit.com. Any questions federal employees have
about the case can be emailed to the law firm at
COVID19HazardPay@kcnlaw.com. [GN]
UNIVERSITY OF SAN FRANCISCO: Coach Fired Following Class Action
---------------------------------------------------------------
Teddy Cahill, writing for Baseball America, reports that San
Francisco on March 13 announced it had fired coach Nino Giarratano,
two days after three former players filed a class-action lawsuit
against the NCAA, the university, Giarratano and former assistant
coach Troy Nakamura.
USF investigated allegations against Giarratano and Nakamura in the
fall of 2021 and its findings led to the dismissal of Nakamura in
January and a formal reprimand for Giarratano. The lawsuit brings
new allegations, while separately USF learned that Giarratano
allowed Nakamura on the field before the March 16 game against
Fresno State.
"The new allegations in the lawsuit as well as Giarratano's recent
behavior in allowing Nakamura access to baseball operations is
extremely concerning," athletic director Joan McDermott said. "As a
result, we have taken actions to make changes in baseball program
leadership."
The lawsuit alleges Giarratano and Nakamura oversaw an atmosphere
that "included persistent psychological abuse and repeated
inappropriate sexual conduct." The lawsuit describes multiple
instances when Nakamura was overly sexual, including an incident
when he crawled on the field naked. The former players also
describe verbal abuse and the lawsuit alleges multiple players
became suicidal as a result of the program but does not provide
further context for those allegations.
Giarratano has been head coach of USF since 1999 and is the
winningest coach in program history.
Pitching coach Mat Keplinger was named interim head coach for the
Dons. They are 10-7 this season and lost their first three games of
the weekend against Arizona State and Missouri. USF concludes its
weekend slate on March 13 against Arizona State. [GN]
WELZ LLC: Fischler Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Welz, LLC. The case
is styled as Brian Fischler, individually and on behalf of all
other persons similarly situated v. Welz, LLC doing business as:
Welz, Case No. 1:22-cv-02011 (S.D.N.Y., March 10, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Welz -- https://www.welz.com/ -- formerly known as NY COVID TEST,
is on a mission to bring instant care, COVID-19 testing and
vaccinations.[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
WILLIS & BROCK: Class Settlement in Estes Suit Wins Final Approval
------------------------------------------------------------------
In the case, KRISTY ESTES, individually and on behalf of similarly
situated persons, Plaintiff v. WILLIS & BROCK FOODS, INC., et al.,
Defendant, Civil No. 6:18-cv-00197-GFVT (E.D. Ky.), Judge Gregory
F. Van Tatenhove of the U.S. District Court for the Eastern
District of Kentucky, Southern Division, London, granted the named
Plaintiff's unopposed Motion for Final Settlement Approval.
I. Background
The named Plaintiff brought the class action alleging the
Defendants' compensation policy caused her and other pizza delivery
drivers' salaries to fall below the minimum wage. The parties
achieved a settlement and have followed the Rule 23(e) process for
class action settlement approval.
Estes was a delivery driver for a Papa John's Pizza franchise owned
by the Defendants, Willis & Brock Foods, Inc. and Jesse Willis. She
and other drivers delivered pizza to customers using their personal
cars. By using their personal vehicles for business purposes, these
drivers incurred costs for gas, insurance, repairs, and more. While
their employer did reimburse them for these costs, Estes brought
this claim individually and on behalf of other drivers claiming
that the reimbursement rates were insufficient. She alleges this
policy caused drivers' wages to fall below the minimum wage.
On April 1, 2020, the parties informed the Court that they reached
a settlement. The redacted settlement agreement establishes a
three-tier system to compensate class members. First, each class
member's total miles driven for the Defendants is divided by all of
the class members' total miles driven to determine the ratio of
payment they will receive. Each class member's payment ("potential
settlement payment") is determined by their payment ratio,
multiplied by the total settlement amount, which is confidential.
The class members who "previously opted-in" -- the twelve Round One
opt-in members -- receive 1.8 times their potential payment. Other
class members who submitted claim forms -- the thirteen Round Two
opt-in members -- receive their potential payment. The remaining
class members receive an averaged portion of the remaining funds.
The Court held a preliminary fairness hearing on May 11, 2021, in
which the parties argued in favor of approving the settlement. It
then granted preliminary approval of the settlement, allowing the
parties to begin the notice and Round-Two opt-in period. The
parties now move for final approval of the settlement agreement.
On December 7, the Court held a final fairness hearing and heard
oral arguments from both parties in favor of the settlement. The
matter is now ripe for review.
II. Discussion
The case is a "hybrid action," raising claims under both the FLSA
and Kentucky Wage and Hour law. It is a common approach to these
claims but presents a conflict because the FLSA provides specific
standards for class certification and settlement approval that
differ from state wage and hour claims. While the Sixth Circuit has
not clarified the proper approach for these actions, courts in the
circuit conduct Rule 23 and FLSA class certification and settlement
approval together. Judge Van Tatenhove finds the Western District
of Kentucky's approach, which analyzes hybrid action settlements
under both the FLSA and Rule 23 standards, the most appropriate.
Accordingly, he reviews the propriety of the settlement under both
standards.
A.
First, the Court must approve the terms of the settlement. Courts
can approve settlements of FLSA claims if the settlement is a
"fair, adequate, and reasonable" resolution of a "bona fide
dispute." This requirement ensures plaintiffs do not relinquish
their right to full compensation provided by the FLSA. The Western
District of Tennessee defines a bona fide dispute as "legitimate
questions about 'the existence and extent of defendant's FLSA
liability.'"
Many courts have found the exact issue presented here—alleged
inadequate reimbursement of costs incurred by pizza delivery
drivers -- does present a bona fide dispute. Judge Van Tatenhove
agrees. He says, the parties genuinely dispute whether the
Defendants' actions violate the FLSA. He finds that the settlement
is "fair, adequate, and reasonable," so he will approve settlement
of the FLSA claims.
Next, Judge Van Tatenhove must analyze the settlement of the
Kentucky wage and hour claims, which is governed by the general
rule for class action settlement approval, Federal Rule of Civil
Procedure 23(e). The Rule provides a number of factors to determine
whether the agreement is "fair, reasonable, and adequate," the
ultimate requirement for approval. The Sixth Circuit has its own
list of factors that courts in the circuit consider alongside the
Rule 23 factors. Both sets of factors can be generally divided into
procedural and substantive concerns.
1.
Judge Van Tatenhove is satisfied that the settlement agreement was
reached following sound procedure. Rule 23(e)'s procedural concerns
include whether the class was adequately represented and whether
the agreement was negotiated at arm's length. The Sixth Circuit's
procedural factors consider the amount of discovery, opinions of
counsel and the class representative, and the risk of fraud or
collusion.
The class members were represented by counsel with significant
experience in this type of case. Judge Van Tatenhove is confident
the agreement was negotiated at arm's length, minimizing the risk
of fraud or collusion. The case has been ongoing for more than
three years and the final agreement was "rigorously negotiated."
With no evidence or allegation of fraud or collusion, the Court
presumes its absence. Finally, the counsel and the class
representative are in favor of approval. The judgment of counsel
with significant experience in this area is given great deference.
Accordingly, Judge Van Tatenhove finds all of the procedural
factors weigh in favor of settlement approval.
2.
Judge Van Tatenhove opines that the settlement agreement is also
substantively sound. Rule 23(e) requires the agreement be
"adequate" and treat class members equitably. The adequacy of the
agreement includes four sub-factors: comparing settlement to trial
and appeal, the effectiveness of the distribution method,
attorney's fees, and any external agreements.
Given the complexity of the case, open questions, and the
Defendants' financial position, Judge Van Tatenhove opines that the
settlement is far more helpful to the class members than proceeding
to trial. The agreement's method of distribution is fair to the
class members. The agreement treats all class members equitably,
save for the additional service award given to the named Plaintiff.
While there are multiple tiers of payouts, these are based on
whether and when class members opted in to participate in the suit.
Each class member had an equal opportunity to opt-in, so all the
class members were treated equitably. The preferential treatment
given to the named Plaintiff is fair because of the time and effort
she put into the litigation. Her award is within the range of
payments Courts in this Circuit have approved in similar cases.
Accordingly, all of the substantive factors weigh in favor of
approval.
3.
The Sixth Circuit adds one final factor: Whether settlement serves
the public interest. Judge Van Tatenhove finds, pursuant to the
Rule 23(e) and Sixth Circuit factors, that the settlement achieved
in the matter is fair, reasonable, and adequate. Accordingly, he
will approve the settlement agreement as it applies both to the
FLSA and the wage and hour claims. He now turns to approval of the
awards and fees provided for in the agreement.
B.
Next, Judge Tatenhove opines that he must approve the service
award, claims administrator fee, and attorneys' fees provided by
the agreement. The service award is warranted because similar
service awards have been granted in similar cases and Estes
submitted proof of the time and effort she put into the litigation.
He also approves the amount to be distributed to the claims
administrator. The administrator did incur greater costs than the
agreement provides for, but the attorneys incurred lesser costs.
The Plaintiff indicates these overages will be paid for out of the
funds set aside for the attorneys' costs.
Next, Judge Van Tatenhove must analyze the propriety of the
proposed attorneys' fees. Though the parties agreed to the proposed
fees, he still must review them for reasonableness. He
preliminarily ruled that these fees are reasonable. Because the
factors weigh in favor of approval and the proposed fees are within
the range previously approved, Judge Van tatenhove finds the
proposed fees are reasonable.
C
Judge Van Tatenhove must also formally certify the class for the
wage and hour claims under Rule 23 and certify the collective
action under the FLSA.
The following group was previously granted conditional
certification under Rule 23: "All individuals who have previously
opted into this lawsuit, and all other Kentucky-based delivery
drivers employed by Defendants who received mileage reimbursements
from July 20, 2015, to July 20, 2020."
The Court also conditionally certified a collective action of "all
delivery drivers who worked for the Defendants within the three
years preceding the Order" under the FLSA.
Judge Van Tatenhove will grant conditional certification, noting
the bar for conditional certification under the FLSA is not high
and that both parties agreed that bar was met. Final certification
is granted when the Court finds that the plaintiffs are "similarly
situated." The Plaintiffs are similarly situated if they "suffer
from a single, FLSA-violating policy, and when proof of that policy
or of conduct in conformity with that policy proves a violation as
to all the Plaintiffs." For the reasons laid out, it is clearly the
case and certification under Section 216(b) is appropriate.
III. Conclusion
Accordingly, Judge Van Tatenhove being sufficiently advised,
granted the Motion for Final Settlement Approval.
The following class is certified for settlement purposes as a class
action pursuant to Federal Rule of Civil Procedure 23(a), (b)(3):
"All individuals who have previously opted into this lawsuit, and
all other Kentucky-based delivery drivers employed by the
Defendants who received mileage reimbursements from July 20, 2015,
to July 20, 2020."
The following collective action is finally certified for settlement
purposes pursuant to 29 U.S.C. Section 216(b): "All current and
former delivery drivers employed by Defendants within the three
years preceding Jan. 25, 2019."
Judge Van Tatenhove approved the Settlement Agreement as a fair and
reasonable compromise of the Parties' disputes.
Judge Van Tatenhove approved of the proposed distribution of the
Net Settlement Fund, as defined in the Agreement, to the Plaintiff,
the Opt-In Plaintiffs, and the Class Members. He approved the
proposed participation award to the Named Plaintiff, Kristy Estes.
He also approved the payment of the actual costs of the Settlement
Claims Administrator, with the overages to be paid from the funds
designated for the class counsel's costs. Finally, he approved the
proposed payment of attorneys' fees to the Class Counsel in the
amount established in the agreement, and reimbursement of Counsel's
actual costs and litigation expenses.
The case is dismissed with prejudice.
The Clerk is directed to strike the matter from the Court's active
docket.
A full-text copy of the Court's March 8, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/25hxhhpe from
Leagle.com.
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