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C L A S S A C T I O N R E P O R T E R
Friday, March 25, 2022, Vol. 24, No. 55
Headlines
3M COMPANY: Hawkins Alleges Injury From Exposure to Toxic AFFF
3M COMPANY: Kitchen Alleges Injury From Exposure to Toxic AFFF
3M COMPANY: Matthews Alleges Injury From Exposure to Toxic AFFF
3M COMPANY: Perrigo Alleges Injury From Exposure to Toxic AFFF
3M COMPANY: Sullivan Alleges Injury From Exposure to Toxic AFFF
A-FRAME SUNCO: Slade Files ADA Suit in S.D. New York
ABBOTT LABORATORIES: William Sues Over Contaminated Infant Formulas
AKEBIA THERAPEUTICS: Bragar Eagel Reminds of May 13 Deadline
AMAZON.COM INC: Bid to Dismiss Frame-Wilson Suit Granted in Part
AMERICAN FAMILY: Wins Bid to Compel Cinquemani to Arbitrate Claims
ANALOG DEVICES: Ryan Asset Files Suit in Del. Chancery Ct.
APPAMAN INC: Joyner Files ADA Suit in S.D. New York
ATLAS RETAIL: Misclassifies Workers as I.C., THOMPSON Suit Alleges
BLISTEX INC: Faces Madhavan Suit Over Contaminated Spray Products
BROOKLYN BREAD: Pavon Seeks Minimum, OT Wages Under FLSA & NYLL
BROOKLYN EVENTS CENTER: Dawkins Files ADA Suit in E.D. New York
CABALETTA BIO: Rosen Law Reminds of April 29 Deadline
CANADA: Supreme Court Dismisses Appeal to Stop Bullying Class Suit
CAPSTONE LOGISTICS: Nunez Suit Removed to N.D. Illinois
CELSIUS HOLDINGS: Bragar Eagel Reminds of May 15 Deadline
CELSIUS HOLDINGS: Robbins LLP Discloses Securities Class Action
CENTRAL FLORIDA: Torres Suit Seek Unpaid Overtime Wages Under FLSA
CENTRAL PAYMENT: Class Deal in Custom Hair Suit Wins Prelim. Okay
CHESAPEAKE ENERGY: Fails to Pay Overtime Pay, Armstrong Alleges
CHURCHILL DOWNS: Mattera Suit Removed from State Court to W.D. Ky.
CORE & MAIN: California Court Enters Judgment in Perez Class Suit
DARTMOUTH-HITCHCOCK: Faces Adams Suit Over ERISA Violations
DAVID BROADBENT: Sexual Abuse Class Action Now Has 50 Jane Does
DAYMARK REALTY: 11th Cir. Affirms Sanctions Against Catanzarite
DJGN LEXINGTON: Sullivan Seeks Minimum, OT Wages Under FLSA, KWHA
FEDEX CORP: Promos4Sale Sues Over Alleged Erroneous Quoted Price
FIRST LOVE: Court Dismisses Calavan Class Suit With Prejudice
FORD MOTOR: Illinois Court Stays Discovery in Rodriguez Class Suit
GARRETT MOTION: Faces Securities Suit in New York Court
GRAB HOLDINGS: Faces Peccarino Suit Over Stock Price Drop
GRAB HOLDINGS: Glancy Prongay Files Securities Fraud Lawsuit
GRAB HOLDINGS: Robbins Geller Reminds of May 16 Deadline
HOLIDAY HAVEN: Loses Petition to Appeal in Ruhlen Antitrust Suit
ILLINOIS: Court Denies Bid to Certify Class in Thompson v. IDOC
IMMUNOVANT INC: Faces Securities Suit in New York Court
JOHN A. TOMASINO: State of Florida Files Suit in N.D. Florida
KANSAS CITY: Baseball Players Awarded Over $1.8M in Penalties
KI INTERNATIONAL: Hobbs Files ADA Suit in S.D. New York
KONINKLIJKE PHILIPS: Pittman Suit Transferred to W.D. Pennsylvania
LAGOS LOUNGE: Estrada Files FLSA Suit in S.D. New York
LIBERTY UNIVERSITY: Wins Bid for Summary Judgment in Elleby Suit
MAD TASTY: Bunting Files ADA Suit in E.D. New York
MARA HOFFMAN: Bunting Files ADA Suit in E.D. New York
MCMENAMINS INC: Kirby Suit Removed to W.D. Washington
MDL 2895: Court Narrows Claims of EPPs and DPPs in Antitrust Suit
MEZCO TOYZ: Hedges Files ADA Suit in S.D. New York
MICRON TECHNOLOGY: Summary Judgment in Manning Class Suit Affirmed
NEW YORK, NY: Court Grants Bid to Dismiss Torres' Amended Complaint
NEWELL BRANDS: Faces Securities Suit in N.J. Court
NFINITY ATHLETICS: Fusion Elite Suit Transferred to N.D. Georgia
NISSAN NORTH: Faces Boone Suit Over Vehicles' Transmission Defect
NORWOOD COMMERCE: Sued Over Failure to Comply with Regulations
NXEDGE MH: Perez Wage Suit Remanded to Santa Clara Superior Court
PENN CREDIT: Wins Bid for Summary Judgment in Adler FDCPA Suit
PHILADELPHIA, PA: Court Grants Bid to Certify Class in Remick Suit
POLARIS INDUSTRIES: Faces Suit Over Vehicles' OSHA Compliance
PORTFOLIO RECOVERY: Brach Files FDCPA Suit in E.D. New York
PROCTER & GAMBLE: Shelly Sues Over Deceptive Charcoal Products
PUERTO RICO: Bid for Default in Hernandez-Castrodad Suit Denied
RICCO MARASCA: Calcano Files ADA Suit in S.D. New York
RIVIAN AUTOMOTIVE: Robbins Geller Reminds of May 6 Deadline
ROLLER DERBY: Ortega Files ADA Suit in S.D. New York
SELECTQUOTE INC: Faces Hartel Class Action in New York
SELECTQUOTE INC: Faces Securities Suit in New York Court over IPO
SHERBURNE COUNTY, MN: Court Narrows Claims in Brenizer v. Jail
SMITHS DETECTION: N.D. California Refuses to Remand Nguyen Suit
SUSHI MARU: Jung Seeks Overtime Wages Under FLSA & NYLL
TELEFONAKTIEBOLAGET LM: Lieff Cabraser Reminds of May 2 Deadline
TEVA PHARMACEUTICALS: Faces Anticompetition Suit for Copaxone Drug
TOYOTA MOTOR: Faces Class Action Over Unsafe "Fake" Taxis
TREEHOUSE FOODS: Bartelt Securities Suit Hearing Set for June 27
TREEHOUSE FOODS: Faces Lavin Securities Suit
TREEHOUSE FOODS: Faces Shareholder Suit in Illinois Court
TREEHOUSE FOODS: Hearing on Employees' Fund Suit Set for June 27
TREEHOUSE FOODS: Illinois Court Dismisses PERSM Shareholder Suit
TRIMFIT GLOBAL: Ortega Files ADA Suit in S.D. New York
TRINET GROUP: Sued by Employee Fund over Breach of Fiduciary Duty
UNILEVER UNITED: Hite Sues Over Mislabeled Mayonnaise Dressing
UNILEVER UNITED: N.D. Illinois Dismisses Castillo Consumer Suit
WHOLE FOODS: Fails to Pay Proper Wages, O'Connor Suit Alleges
Asbestos Litigation
ASBESTOS UPDATE: APi Group Faces Personal Injury Lawsuits
ASBESTOS UPDATE: CarParts.com Defends Product Liability Claims
ASBESTOS UPDATE: Forum Energy Still Faces Exposure Claims
ASBESTOS UPDATE: GMS Inc. Defends 1,030 PI Lawsuits as of Jan. 31
ASBESTOS UPDATE: Intricon Corp. Faces Product Liability Lawsuits
ASBESTOS UPDATE: Liggett Group Faces 16 Multi-Defendant PI Cases
ASBESTOS UPDATE: Perrigo Co. Faces 54 Product Liability Lawsuits
ASBESTOS UPDATE: Resolute Forest Products Faces PI Claims
ASBESTOS UPDATE: TriMas Corp. Has 389 Pending Cases as of Dec. 31
*********
3M COMPANY: Hawkins Alleges Injury From Exposure to Toxic AFFF
--------------------------------------------------------------
JOHNNY HAWKINS and KAY HAWKINS, his wife v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company), BUCKEYE FIRE EQUIPMENT
COMPANY, CHEMGUARD, INC., CHEMOURS COMPANY FC, LLC, CHUBB FIRE,
LTD., CORTEVA, 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, 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-00871-RMG (D.S.C., March 16, 2022) seeks damages for
personal injury sustained by the Plaintiff and others similarly
situated resulting from exposure to aqueous film-forming foams
containing the toxic chemicals collectively known as per and
polyfluoroalkyl substances.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. AFFF has been used for decades by military
and civilian firefighters to extinguish fires in training and in
response to Class B fires.
According to the complaint, 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.
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. PFAS includes perfluorooctanoic acid ("PFOA") and
perfluorooctane sulfonic acid ("PFOS") and related chemicals,
including those that degrade to PFOA and/or PFOS. The Defendants
knew, or should have known, that PFAS remain in the human body
while presenting significant health risks to humans, the suit
contends.
The Plaintiffs seek 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 the Plaintiff's training and
firefighting activities.
The Hawkins suit has been consolidated in MDL No. 2873, In Re:
Aqueous Film-Forming Foams Products Liability Litigation. The case
is assigned to the Hon. Judge Richard Gergel.
3M Company is an American multinational conglomerate corporation
operating in the fields of industry, worker safety, U.S. health
care, and consumer goods.[BN]
The Plaintiffs are represented by:
Stephen T. Sullivan, Jr., Esq.
John E. Keefe, Jr., Esq.
WILENTZ, GOLDMAN & SPITZER P.A.
125 Half Mile Road, Suite 100
Red Bank, NJ 07701
Telephone: (732) 855-6060
Facsimile: (732( 726-4860
3M COMPANY: Kitchen Alleges Injury From Exposure to Toxic AFFF
--------------------------------------------------------------
BRADLEY KITCHEN and BARRILYNN KITCHEN, his wife v. 3M COMPANY
(f/k/a Minnesota Mining and Manufacturing Company), BUCKEYE FIRE
EQUIPMENT COMPANY, CHEMGUARD, INC., CHEMOURS COMPANY FC, LLC, CHUBB
FIRE, LTD., CORTEVA, 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, 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-00865-RMG (D.S.C., March 16, 2022) seeks damages for
personal injury sustained by the Plaintiff and others similarly
situated resulting from exposure to aqueous film-forming foams
containing the toxic chemicals collectively known as per and
polyfluoroalkyl substances.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. AFFF has been used for decades by military
and civilian firefighters to extinguish fires in training and in
response to Class B fires.
According to the complaint, 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.
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. PFAS includes perfluorooctanoic acid ("PFOA") and
perfluorooctane sulfonic acid ("PFOS") and related chemicals,
including those that degrade to PFOA and/or PFOS. The Defendants
knew, or should have known, that PFAS remain in the human body
while presenting significant health risks to humans, the suit
contends.
The Plaintiffs seek 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 the Plaintiff's training and
firefighting activities.
The Kitchen suit has been consolidated in MDL No. 2873, In Re:
Aqueous Film-Forming Foams Products Liability Litigation. The case
is assigned to the Hon. Judge Richard Gergel.
3M Company is an American multinational conglomerate corporation
operating in the fields of industry, worker safety, U.S. health
care, and consumer goods.[BN]
The Plaintiffs are represented by:
Stephen T. Sullivan, Jr., Esq.
John E. Keefe, Jr., Esq.
WILENTZ, GOLDMAN & SPITZER P.A.
125 Half Mile Road, Suite 100
Red Bank, NJ 07701
Telephone: (732) 855-6060
Facsimile: (732( 726-4860
3M COMPANY: Matthews Alleges Injury From Exposure to Toxic AFFF
---------------------------------------------------------------
EVAN MATTHEWS and JESSIE MATTHEWS, his wife, v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company), BUCKEYE FIRE EQUIPMENT
COMPANY, CHEMGUARD, INC., CHEMOURS COMPANY FC, LLC, CHUBB FIRE,
LTD., CORTEVA, 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, 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-00869-RMG (D.S.C., March 16, 2022) seeks damages for
personal injury sustained by the Plaintiff and others similarly
situated resulting from exposure to aqueous film-forming foams
containing the toxic chemicals collectively known as per and
polyfluoroalkyl substances.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. AFFF has been used for decades by military
and civilian firefighters to extinguish fires in training and in
response to Class B fires.
According to the complaint, 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.
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. PFAS includes perfluorooctanoic acid ("PFOA") and
perfluorooctane sulfonic acid ("PFOS") and related chemicals,
including those that degrade to PFOA and/or PFOS. The Defendants
knew, or should have known, that PFAS remain in the human body
while presenting significant health risks to humans, the suit
contends.
The Plaintiffs seek 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 the Plaintiff's training and
firefighting activities.
The Matthews suit has been consolidated in MDL No. 2873, In Re:
Aqueous Film-Forming Foams Products Liability Litigation. The case
is assigned to the Hon. Judge Richard Gergel.
3M Company is an American multinational conglomerate corporation
operating in the fields of industry, worker safety, U.S. health
care, and consumer goods.[BN]
The Plaintiffs are represented by:
Stephen T. Sullivan, Jr., Esq.
John E. Keefe, Jr., Esq.
WILENTZ, GOLDMAN & SPITZER P.A.
125 Half Mile Road, Suite 100
Red Bank, NJ 07701
Telephone: (732) 855-6060
Facsimile: (732( 726-4860
3M COMPANY: Perrigo Alleges Injury From Exposure to Toxic AFFF
--------------------------------------------------------------
PAUL PERRIGO and AMY PERRIGO, his wife v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company), BUCKEYE FIRE EQUIPMENT
COMPANY, CHEMGUARD, INC., CHEMOURS COMPANY FC, LLC, CHUBB FIRE,
LTD., CORTEVA, 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, 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-00873-RMG (D.S.C., March 16, 2022) seeks damages for
personal injury sustained by the Plaintiff and others similarly
situated resulting from exposure to aqueous film-forming foams
containing the toxic chemicals collectively known as per and
polyfluoroalkyl substances.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. AFFF has been used for decades by military
and civilian firefighters to extinguish fires in training and in
response to Class B fires.
According to the complaint, 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.
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. PFAS includes perfluorooctanoic acid ("PFOA") and
perfluorooctane sulfonic acid ("PFOS") and related chemicals,
including those that degrade to PFOA and/or PFOS. The Defendants
knew, or should have known, that PFAS remain in the human body
while presenting significant health risks to humans, the suit
contends.
The Plaintiffs seek 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 the Plaintiff's training and
firefighting activities.
The Perrigo suit has been consolidated in MDL No. 2873, In Re:
Aqueous Film-Forming Foams Products Liability Litigation. The case
is assigned to the Hon. Judge Richard Gergel.
3M Company is an American multinational conglomerate corporation
operating in the fields of industry, worker safety, U.S. health
care, and consumer goods.[BN]
The Plaintiffs are represented by:
Stephen T. Sullivan, Jr., Esq.
John E. Keefe, Jr., Esq
WILENTZ, GOLDMAN & SPITZER P.A.
125 Half Mile Road, Suite 100
Red Bank, NJ 07701
Telephone: (732) 855-6060
Facsimile: (732( 726-4860
3M COMPANY: Sullivan Alleges Injury From Exposure to Toxic AFFF
---------------------------------------------------------------
Ronald Sullivan v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company), BUCKEYE FIRE EQUIPMENT COMPANY, CHEMGUARD,
INC., CHEMOURS COMPANY FC, LLC, CHUBB FIRE, LTD., CORTEVA, 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,
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-00875-RMG(D.S.C., March 16,
2022) seeks damages for personal injury sustained by the Plaintiff
and others similarly situated resulting from exposure to aqueous
film-forming foams containing the toxic chemicals collectively
known as per and polyfluoroalkyl substances.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. AFFF has been used for decades by military
and civilian firefighters to extinguish fires in training and in
response to Class B fires.
According to the complaint, 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.
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. PFAS includes perfluorooctanoic acid ("PFOA") and
perfluorooctane sulfonic acid ("PFOS") and related chemicals,
including those that degrade to PFOA and/or PFOS. The Defendants
knew, or should have known, that PFAS remain in the human body
while presenting significant health risks to humans, the suit
contends.
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 the Plaintiff's training and
firefighting activities.
The Sullivan suit has been consolidated in MDL No. 2873, In Re:
Aqueous Film-Forming Foams Products Liability Litigation. The case
is assigned to the Hon. Judge Richard Gergel.
3M Company is an American multinational conglomerate corporation
operating in the fields of industry, worker safety, U.S. health
care, and consumer goods.[BN]
The Plaintiff is represented by:
Stephen T. Sullivan, Jr., Esq.
John E. Keefe, Jr., Esq
WILENTZ, GOLDMAN & SPITZER P.A.
125 Half Mile Road, Suite 100
Red Bank, NJ 07701
Telephone: (732) 855-6060
Facsimile: (732( 726-4860
A-FRAME SUNCO: Slade Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against A-Frame Sunco Inc.
The case is styled as Linda Slade, individually and as the
representative of a class of similarly situated persons v. A-Frame
Sunco Inc. doing business as: Kinlo, Case No. 1:22-cv-02232
(S.D.N.Y., March 18, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
A-Frame Sunco Inc. doing business as Kinlo --
https://www.kinlo.com/ -- is a new suncare brand by Naomi Osaka,
designed for melanated skin tones.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
ABBOTT LABORATORIES: William Sues Over Contaminated Infant Formulas
-------------------------------------------------------------------
KEYONNA WILLIAM, individually and on behalf of all others similarly
situated v. ABBOTT LABORATORIES D/B/A ABBOTT NUTRITION, Case No.
2:22-cv-10550-VAR-EAS (E.D. Mich., March 15, 2022) is a class
action on behalf of herself and on behalf of a Class of similarly
situated consumers against the Defendant who purchased certain
powdered infant formulas manufactured and sold by Abbott.
Abbott manufactures and sells infant formula products. These
products include the brands Similac, Alimentum, and EleCare which
parents trust and use to feed and nourish their children.
On February 17, 2022, the U.S. Food and Drug Administration ("FDA")
in conjunction with the U.S. Centers for Disease Control and
Prevention ("CDC") alerted consumers to avoid purchasing or using
certain powdered infant formula products produced at Abbott's
Sturgis, Michigan facility. Specifically, the FDA announced that it
is investigating consumer complaints of Cronobacter sakazakii and
Salmonella Newport infections connected to powdered infant formula
products produced by Abbott.
On February 18, 2020, Abbott announced a recall of its powdered
infant formula products, including the brands Similac, Alimentum,
and EleCare because they suffer from a defect which could result in
serious injury, permanent impairment, and even be life-threatening.
These products may contain Cronobacter sakazakii and Salmonella
Newport bacteria, which when consumed, can result in serious
adverse health effects, including sepsis, meningitis, poor feeding,
irritability, fever, jaundice, grunting breaths, abnormal
movements, and bowel damage, says the suit.
Similac, Alimentum, and EleCare products where the first two digits
of the product are 22 through 37 and the code on the container
contains "K8," "SH," or "Z2," and the use-by date is April 1, 2022
or later are all part of the recall ("Recalled Products").
Despite the recall, Abbott is not crediting or replacing affected
Recalled Products, which many parents and caretakers rely on daily
to feed and care for their children. Since Abbott is now telling
consumers it is not safe for their infants to consume these
products, but many consumers rely on them to feed their children,
Abbott leaves many consumers with no safe option but to pay full
price for a newer version, added the suit.
The Plaintiff purchased Abbott's powdered infant formula included
in the recall. The Plaintiff would not have purchased the product
or would have paid less for it had they known about the
contamination and potential health hazards.
As a result of Abbott's alleged unfair, deceptive, and/or
fraudulent business practices, consumers of these products,
including Plaintiff, have suffered an ascertainable loss,
injury-in-fact, and otherwise have been harmed by Abbott's
conduct.[BN]
The Plaintiff is represented by:
Jason J. Thompson, Esq.
SOMMERS SCHWARTZ, P.C.
One Towne Square, 17th Floor
Southfield, MI 48076
Telephone: (248) 355-0300
E-mail: jthompson@sommerspc.com
AKEBIA THERAPEUTICS: Bragar Eagel Reminds of May 13 Deadline
------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized stockholder
rights law firm, announces that a class action lawsuit has been
filed against Akebia Therapeutics, Inc. ("Akebia" or the "Company")
(NASDAQ: AKBA) in the United States District Court for the Eastern
District of New York on behalf of all persons and entities who
purchased or otherwise acquired Akebia securities between June 28,
2018 and September 2, 2020, both dates inclusive (the "Class
Period"). Investors have until May 13, 2022 to apply to the Court
to be appointed as lead plaintiff in the lawsuit.
Click here to participate in the action.
Akebia is a biopharmaceutical company that focuses on the
development and commercialization of renal therapeutics for
patients with kidney diseases. The Company's lead investigational
product candidate is vadadustat, an oral therapy, which is in Phase
3 development for the treatment of anemia due to chronic kidney
disease ("CKD") in dialysis-dependent and non-dialysis dependent
("NDD") adult patients.
Akebia's Phase 3 clinical programs for vadadustat include, among
others, the PRO2TECT program in NDD-CKD patients with anemia (the
"PRO2TECT Program"). The PRO2TECT Program's primary safety endpoint
was defined as non-inferiority of vadadustat versus darbepoetin
alfa in time to first occurrence of major adverse cardiovascular
events ("MACE").
The complaint alleges that, throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operations, and prospects. Specifically,
Defendants made false and/or misleading statements and/or failed to
disclose that: (i) vadadustat was not as safe in treating NDD-CKD
patients with anemia as Defendants had represented; (ii) as a
result, Defendants overstated the PRO2TECT Program's clinical
prospects; (iii) accordingly, Defendants also overstated
vadadustat's overall commercial and regulatory prospects; and (iv)
as a result, the Company's public statements were materially false
and misleading at all relevant times.
On September 3, 2020, Akebia issued a press release announcing
"top-line results" from the PRO2TECT Program, disclosing that
"[v]adadustat did not meet the primary safety endpoint of the
PRO2TECT program, defined as non-inferiority of vadadustat versus
darbepoetin alfa in time to first occurrence of [MACE.]"
On this news, Akebia's common stock price fell $7.35 per share, or
73.5%, to close at $2.65 per share on September 3, 2020.
If you purchased or otherwise acquired Akebia shares and suffered a
loss, are a long-term stockholder, have information, would like to
learn more about these claims, or have any questions concerning
this announcement or your rights or interests with respect to these
matters, please contact Brandon Walker or Alexandra Raymond by
email at investigations@bespc.com, telephone at (212) 355-4648, or
by filling out this contact form. There is no cost or obligation to
you.
About Bragar Eagel & Squire
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes. [GN]
AMAZON.COM INC: Bid to Dismiss Frame-Wilson Suit Granted in Part
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In the case, DEBORAH FRAME-WILSON, CHRISTIAN SABOL, SAMANTHIA
RUSSELL, SCHAREIN, LIONEL KEROS, NATHAN CHANEY, CHRIS GULLEY,
SHERYL TAYLOR-HOLLY, ANTHONY COURTNEY, DAVE WESTROPE, STACY DUTILL,
SARAH ARRINGTON, MARY ELLIOT, HEATHER GEESEY, STEVE MORTILLARO,
CHAUNDA LEWIS, ADRIAN HENNEN, GLENDA R. HILL, GAIL MURPHY, PHYLLIS
HUSTER, and GERRY KOCHENDORFER, on behalf of themselves and all
others similarly situated, Plaintiffs v. AMAZON.COM, INC., a
Delaware corporation, Defendant, Arthur Case No. 2:20-cv-00424-RAJ
(W.D. Wash.), Judge Richard A. Jones of the U.S. District Court for
the Western District of Washington, Seattle, granted in part and
denied in part the Defendant's Motion to Dismiss.
I. Background
Defendant Amazon is "the world's largest online retailer." Sales
conducted on its online platform account for almost half of all
retail e-commerce in the United States. The Plaintiffs are
consumers from 18 states, including Alabama, Arkansas, Arizona,
California, Florida, Illinois, Iowa, Maine, Nevada, New Hampshire,
Pennsylvania, Tennessee, Texas, Utah, Vermont, Virginia,
Washington, and Wisconsin, who purchase consumer goods online.
Amazon operates as an online retailer, selling its own products
directly to its customers, and as an online platform for
third-party sellers and their customers. Amazon sells many of the
same products that sellers sell on Amazon's platform. To sell
products on the Amazon.com platform, sellers register with Amazon
Marketplace and agree to the terms of Amazon Services Business
Solutions Agreement ("BSA") and its policies. The BSA contains
rules for selling on the Amazon.com platform, and any seller with
an Amazon Seller Account must comply with them. Sellers pay a $40
registration fee and a commission charge or referral fee of
approximately 15% for each product sold on the platform. They also
pay a per-item fee or a monthly subscription and a fee for any
refunds when a customer returns a seller's product. They may also,
for an additional fee, employ Fulfillment by Amazon ("FBA") to
store, pick, pack, and ship orders, as well as to manage returns
and customer service.
Until March 2019, the BSA included a "price parity" provision, or
"platform most favored nation" ("PMFN") provision. The PMFN
required sellers to "maintain parity" between the products they
listed on the Amazon platform and those on external platforms by
ensuring that "the purchase price and every other term of sale is
at least as favorable to Amazon Site users as the most favorable
terms" on the sellers' other sales channels. Amazon officially
withdrew the PMFN provision in March 2019 under threat of
investigation by the Federal Trade Commission ("FTC").
Still, on Aug. 30, 2020, the Plaintiffs filed an amended class
action complaint against Amazon alleging federal and state
antitrust violations. They allege that Amazon continues to enforce
its PMFN provision through its current "fair pricing" provision.
They claim that under this provision, "Amazon regularly monitors
the prices of items on sellers' marketplaces," and that if it sees
"pricing practices" on the Amazon.com platform "that harm customer
trust, Amazon can remove the Buy Box, i.e., the coveted
one-click-to-buy button, remove the offer, suspend the ship option,
or, in serious or repeated cases, suspend or terminate selling
privileges." The Plaintiffs allege that sellers receive "price
alerts" with a warning from Amazon if the products they sell on
Amazon.com have been found offered for a lower price on a different
platform. They allege that both PMFN and "fair pricing" policies
have "the effect of getting sellers to raise prices elsewhere,
rather than risk lower revenue from Amazon."
The Plaintiffs allege that Amazon injures consumers by driving up
the price of goods. The products at issue, or "class products,"
consist of approximately 600 million consumer products, defined as
products that must be sold through an ecommerce channel other than
the Amazon.com platform, such as eBay or Walmart.com, and
concurrently offered by Amazon's sellers on the Amazon.com
platform.
The Plaintiffs contend that the seller fees on Amazon are
substantial and built into the prices that sellers charge their
customers for products on the Amazon platform. On other platforms,
they allege, it costs less to sell the same products, but the BSA
precludes sellers from selling those goods at lower prices despite
the cost structure.
The Plaintiffs claim that many of the two million retailers who
sell on the Amazon.com platform do so reluctantly. They allege that
Amazon's ownership of the "largest retail marketplace platform"
gives Amazon the power to restrict sellers from competing on price
on external platforms. The Plaintiffs note that sellers generate
81% to 100 % of their revenue from sales on the Amazon.com
platform, which restricts their power and, as one seller stated,
they "have nowhere else to go and Amazon knows it."
Amazon now moves to dismiss the Plaintiffs' complaint with
prejudice for lack of antitrust standing and failure to state a
claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Amazon denies the Plaintiffs' allegations, arguing that its
policies are, in fact, pro-competitive and "encouragee low prices
in its stores."
II. Discussion
Amazon moves to dismiss the Plaintiffs' claims, alleging various
grounds for dismissal: (1) the Plaintiffs lack antitrust standing;
(2) the Plaintiffs fail to allege a Section 1 per se claim because
such a claim is limited to certain types of conduct between
horizontal competitors; (3) the Plaintiffs' Section 1 rule of
reason and Section 2 claims fail because they fail to properly
define relevant antitrust markets, which is required for such
claims; (4) the Plaintiffs' Section 2 claims fail because they do
not allege anti-competitive, exclusionary conduct; (5) the
Plaintiffs' Section 1 rule of reason and Section 2 claims fail
because they fail to allege plausible anticompetitive harm; (6)
Plaintiffs' state law claims are inadequately pled; and (7)
Plaintiffs' unjust enrichment claim is deficient.
A. Antitrust Standing
Amazon claims that the Plaintiffs' Sherman Act claims must be
dismissed because they lack antitrust standing. The Plaintiffs
disagree. They claim that they have two bases for direct-purchaser
standing. First, the Plaintiffs contend that they have standing "as
direct purchasers from Amazon's co-conspirators." Second, they
claim that they have standing as direct purchasers from
"non-conspiring competitors under an umbrella theory."
Judge Jones agrees that the Plaintiffs have established standing as
direct purchasers of alleged antitrust co-conspirators. The
Plaintiffs allege they are direct purchasers of antitrust
conspirators. They contend that online sellers become
co-conspirators to Amazon's alleged price-fixing conspiracy by
virtue of their agreement with Amazon to sell their products on
third party sites at supracompetitive prices. They allege that they
overpaid as a result of the alleged price-fixing conspiracy when
they purchased class products from Amazon's co-conspirators on
platforms other than Amazon.com.
B. Section 1 Per Se Claim
Amazon next moves to dismiss the Plaintiffs' Section 1 per se
claim. It argues that the Plaintiffs cannot plausibly assert a per
se claim based on horizontal agreements between Amazon and its
third-party sellers because they cannot demonstrate the existence
of such horizontal agreements.
The Plaintiffs contend that the pricing provision at issue is a per
se violation of Section 1 based on the horizontal agreement between
Amazon and third-party sellers on the Amazon.com platform. They
allege that Amazon and the sellers are competitors" because they
are "performing the same online retail function and competing for
the same online retail customers with respect to the sale of many,
if not all, Class Products." They allege that "competing retailers
'Amazon and its third-party sellers agree on 'the way in which they
will compete with one another' in online sales."
Amazon rejects this premise, arguing that the relationship between
Amazon.com and third-party sellers "is a vertical arrangement
because it involves different levels of the supply chain.
Judge Jones holds that the Plaintiffs have not alleged any facts
supporting a horizontal agreement, a "meeting of the minds," or
conspiracy between those individuals or entities who agreed to an
MFN—the third-party sellers in this matter. The Plaintiffs have
not plausibly alleged a horizontal agreement between Amazon and
third-party sellers as "competitors" with respect to the MFN.
Absent plausible allegations of a horizontal arrangement -- or any
legal authority supporting per se analysis in the absence of a
horizontal agreement or inference thereof -- Judge Jones concludes
that the Plaintiffs' allegations of a per se violation fail as
conclusory and unsupported.
C. Section 1 Rule of Reason and Section 2 Claims
Amazon next asserts that the Plaintiffs' Section 1 rule of reason
and Section 2 claims both fail because they do not properly define
relevant antitrust markets or allege plausible anticompetitive
harm. Amazon also contends that the Plaintiffs' Section 2 claims
fail because they do not allege anticompetitive exclusionary
conduct.
Judge Jones finds that (i) the Plaintiffs have alleged sufficient
facts to support a distinction between the ecommerce retail market
and the physical retail market, even though the same products may
be available in both; (ii) the Plaintiffs state facts, which, if
taken as true, are sufficient to demonstrate that the conduct at
issue has resulted in and continues to result in the suppression of
competition and increase of prices on external platforms; and (iii)
the facts alleged that would constitute an offense, regardless of
how numerous, are sufficient to survive a motion to dismiss. For
these reasons, he concludes that the Plaintiffs have plausibly
stated claims under Section 1 and Section 2 of the Sherman Act.
Amazon's motion to dismiss these federal claims is denied.
D. State Law Antitrust and Consumer Protections Claims
In addition to its federal antitrust claims, the Plaintiffs assert
a number of state law claims, specifically, violations of state
antitrust and restraint of trade laws and consumer protection
statutes in 38 jurisdictions. Amazon argues that the Plaintiffs'
state law claims also fail for several reasons. First, Amazon
asserts that the Plaintiffs do not state a per se claim based on a
vertical price-fixing agreement under Maryland and California law.
It next argues that the Plaintiffs' claims under the laws of states
in which they do not reside should be dismissed.
Judge Jones is unpersuaded. He says, Amazon's argument that
Maryland and California per se violations are limited to minimum
resale price agreements unavailing. However, the Plaintiffs have
not established standing for claims under laws of states where they
do not reside. He thus dismisses the Plaintiffs' claims under the
laws of Alaska, Hawaii, Idaho, Kansas, Kentucky, Louisiana,
Maryland, Minnesota, Mississippi, Missouri, Montana, Nebraska, New
Mexico, North Carolina, Oklahoma, Oregon, Rhode Island, South
Carolina, South Dakota, and West Virginia.
Lastly, with respect to the remaining claims brought under laws in
the states where the Plaintiffs do reside, Judge Jones also finds
the Plaintiffs' pleading deficient.The Plaintiffs do not
sufficiently allege facts establishing the elements of each state
claim. He therefore dismisses these state claims and grants the
Plaintiffs' request for leave to amend.
E. Unjust Enrichment Claims
Finally, Amazon argues that the Plaintiffs' unjust enrichment
claims fail for three reasons: (1) similar to their state law
antitrust and consumer protection claims, the Plaintiffs do not
plead facts establishing the elements of the claims under the laws
of 41 jurisdictions; (2) the Plaintiffs' fail to allege that they
conferred any benefit on Amazon, either directly or indirectly; and
(3) the Plaintiffs lack standing to bring claims under the laws of
any state in which they do not reside.
The Plaintiffs respond that because the elements of unjust
enrichment are essentially the same in every jurisdiction, they
need not repeat them for each jurisdiction. They next argue that
their unjust enrichment claims "do not require that the plaintiff
confer a direct benefit on the defendant and therefore would permit
claims of overcharges caused by Amazon but paid to another."
Finally, they assert the same standing argument to support claims
under laws of states in which they made purchases.
Judge Jones concludes that the Plaintiffs fail to sufficiently
allege unjust enrichment because they do not allege that they
conferred a benefit or enrichment upon Amazon. In the complaint,
the alleged benefit conferred to Amazon is "reducing price
competition and causing consumers to pay higher online prices." The
nebulous nature of the so-called benefit notwithstanding, the
Plaintiffs do not allege that they conferred "reduced price
competition" to Amazon nor were they the ones to "cause" consumers
to pay higher prices—either directly or indirectly. Because the
Plaintiffs allege no facts consistent with the claim that they
conferred a benefit to Amazon, their unjust enrichment claims are
therefore dismissed.
III. Conclusion
For the reasons he stated, Judge Jones granted in part and denied
in part Amazon's Motion to Dismiss. He granted Amazon's motion to
dismiss the Plaintiffs' Section 1 claim under a per se analysis. He
denied Amazon's motion to dismiss the Plaintiffs' Section 1 claim
under a rule of reason and Section 2 claims. He granted dismissal
of the Plaintiffs' state antitrust and restraint of trade laws,
consumer protections statutes, and unjust enrichments claims.
Because the Plaintiffs' complaint may be cured "by the allegation
of other facts," the Court grants leave to amend. The Plaintiffs
may file an amended complaint addressing the deficiencies
identified within 30 days of the entry of the Order.
A full-text copy of the Court's March 11, 2022 Order is available
at https://tinyurl.com/4a3e76ek from Leagle.com.
AMERICAN FAMILY: Wins Bid to Compel Cinquemani to Arbitrate Claims
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In the case, AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS,
Petitioner v. ADRIANA OLIVIERI CINQUEMANI, Respondent, Civ. No.
4:22-CV-31 (CDL) (M.D. Ga.), Judge Clay D. Land of the U.S.
District Court for the Middle District of Georgia, Columbus
Division, granted Aflac's Petition for Order Compelling
Arbitration.
I. Background
The matter is before the Court on the Petition filed by Petitioner
American Family Life Assurance Company of Columbus ("Aflac"). The
Court held a hearing on the matter via videoconference on March 4,
2022.
The matter is a petition to compel arbitration brought under the
Federal Arbitration Act ("FAA"), 9 U.S.C. Section 4. Aflac is a
Nebraska corporation headquartered in Columbus, Georgia, which is
engaged in the business of providing supplemental life, health, and
accident insurance. Respondent is an independent contractor sales
agent with Aflac, who entered into an Associate's Agreement to
market Aflac insurance products in or around February 2021. The
Respondent is a resident and citizen of the State of California.
The Petitioner filed its Petition on Feb. 4, 2022. It seeks an
order from the Court compelling the Respondent to submit to binding
arbitration, on an individual basis, certain claims she has
asserted against the Petitioner in a putative class action
currently pending in the Superior Court of the State of California,
County of San Bernadino, Case No. CIV SB 2135234 (the "California
Action").
In the California Action, the Respondent alleges that she and other
putative class members are or were misclassified by Aflac as
independent contractors, and asserts class-wide claims on nine
causes of action for various alleged wage-and-hour violations and
other employment-related claims under California state law, as well
as a claim for violation of California's Unfair Competition Law,
CAL. BUS. & PROF. CODE Sections 17200-17210. The Respondent has
also indicated to Petitioner that she intends to include
representative claims in her class action for civil penalties under
the California Labor Code Private Attorneys General Act of 2004
("PAGA").
As alleged in the Petition, the Respondent's California Action
asserts claims for various penalties, damages and other forms of
relief that, particularly on a class-wide basis, would exceed
$75,000 if the Respondent were to succeed on her claims.
In addition to an order compelling the Respondent to submit the
above-referenced claims to arbitration on an individual, non-class,
non-representative basis, the Petitioner also asks the Court to
enjoin the Respondent from taking any further actions to prosecute
the California Action in court. In support of its requests, it
relies upon an arbitration provision contained in the Respondent's
Associate's Agreement.
As alleged in the Petition, the Respondent executed her Associate's
Agreement on Jan. 31, 2021, and it became effective upon Aflac's
countersignature executed on Feb. 20, 2021.
Paragraph 10 of Respondent's Associate's Agreement contains an
arbitration agreement. The Associate's Agreement further prohibits
the Respondent from bringing an action in any forum in a
representative capacity without Aflac's consent, providing that
"there will be no consolidation of claims or class actions without
the consent of all parties." It further provides that "any party
may seek an order of any court of competent jurisdiction to enforce
the Arbitration Agreement.
The Respondent was personally served with a summons and copies of
the Petition and its accompanying pleadings on Feb. 4, 2022. The
Respondent has not asserted any challenge to service. The Court
finds that service was proper and that the Respondent was properly
notified of the motion.
On Feb. 23, 2022, the Petitioner filed a motion requesting that the
Court hold a hearing on the matter on March 4, 2022. On Feb. 25,
2022, the Court granted the Petitioner's motion and set a
videoconference hearing for March 4.
The counsel for the Petitioner electronically served a copy of the
order setting the March 4 hearing on the Respondent's counsel in
the California Action on Feb. 28, 2022. The Petitioner also
attempted personal service on Respondent, and on March 2, 2022
copies of the order setting the March 4 hearing and the Court's
instructions for accessing and attending the hearing (to be held
via videoconference) were left at the Respondent's residence. On
March 3, 2022, the Petitioner again attempted personal service on
Respondent, and copies of same were personally served on the
Respondent's mother at Respondent's home address. Accordingly, the
Court finds that the Respondent was provided sufficient notice of
the March 4, 2022 hearing.
The Respondent did not attend the hearing on March 4, 2022, nor did
an attorney enter an appearance on her behalf.
II. Discussion
The first issue for the Court to decide is the legal effect of the
Respondent's failure to respond to the Petition. At the hearing,
the Court suggested that the Federal Rules of Civil Procedure
should apply to this petition, and thus the Respondent would be
deemed to be in default having failed to respond to the Petition
within 21 days of service. The factual allegations in the Petition
therefore would be deemed admitted.
Upon further reflection and based upon additional research, Judge
Land concludes that the default provisions of the Federal Rules of
Civil Procedure do not apply. But failure to respond to the motion
within that 21-day period does not necessarily warrant the granting
of a motion by default. Judge Land finds that the Respondent was
notified that the Petition would be heard on March 4, 2022, and
thus she arguably had until that date to submit any evidence and
argument she wished for the Court to consider. Although she had an
opportunity to submit any evidence and argument for the Court's
consideration, she chose not to do so. Without making an entry of
appearance in the case, Respondent's counsel did appear on the
videoconference to observe. But as noted, she submitted no evidence
for the record. Thus, Judge Land treats the Petitioner's Petition
as a motion to which no response was made and considers the merits
of the Petition based upon the present record.
Although the Respondent's counsel affirmatively indicated during
the videoconference that neither she nor the Respondent were making
an appearance in the proceedings and that she was only there to
observe, she did volunteer at the hearing that she did not believe
the Respondent was subject to personal jurisdiction in the Court
based upon a recently enacted California statute. Notwithstanding
the Respondent's failure to appear and seek dismissal of the motion
based on lack of personal jurisdiction, Judge Land nevertheless
finds it appropriate to expressly address its jurisdiction before
proceeding further. The Petitioner is a corporate citizen of
Nebraska and Georgia, and Respondent is a citizen of California,
and the amount in controversy in the California Action exceeds
$75,000. Accordingly, Judge Land concludes that it has diversity
jurisdiction over this motion under 28 U.S.C. Section 1332.
With respect to personal jurisdiction, it is well-settled that a
court sitting in Georgia has personal jurisdiction over a defendant
who contractually agrees to jurisdiction in the State.
The Respondent's Associate's Agreement contains a valid forum
selection clause providing that Aflac may bring an action to
enforce the arbitration provision "in any federal or state court in
the State of Georgia and Associate hereby consents to personal
jurisdiction and venue in such court." Accordingly, Judge Land
concludes that the Respondent consented to jurisdiction and venue
being proper in the Court, and that the Court has such personal
jurisdiction over Respondent by virtue of her contractual agreement
with Aflac and other contacts with Georgia as alleged in the
Petition. Judge Land further concludes that the exercise of
personal jurisdiction over Respondent comports with both
constitutional due process requirements and the Georgia long-arm
statute, which expressly confers jurisdiction over a nonresident
defendant who, among other bases, "transacts any business within
the state."
Having expressly found jurisdiction exists to consider the matter,
Judge Land next addresses the merits of the Petition. Pursuant to
Section 4 of the FAA, a federal district court with jurisdiction
over a matter will enforce a valid arbitration agreement between
two parties by compelling a dispute covered by that agreement
proceed to arbitration when the requirements for enforcement are
met. As the Eleventh Circuit Court of Appeals has explained, "the
FAA requires a court to compel arbitration upon a showing that (a)
the plaintiff entered into a written arbitration agreement that is
enforceable under ordinary state-law contract principles and (b)
the claims before the court fall within the scope of that
agreement."
As to the first element under Section 4 of the FAA, the Petitioner
has presented sworn evidence that it entered into a fully valid and
enforceable written Associate's Agreement with Respondent in
February 2021, and that Paragraph 10 of the Associate's Agreement
contains a similarly valid and enforceable arbitration agreement
under Georgia law. No evidence has been presented to refute
Petitioner's affidavits which support the validity and
enforceability of the Agreement. Based on the present record, Judge
Land concludes that the Respondent's Associate's Agreement is a
valid and binding contract under Georgia law, and that the
arbitration agreement contained in Paragraph 10 of the Associate's
Agreement is likewise valid and enforceable under ordinary
state-law contract principles and the FAA.
As to the second element under Section 4 of the FAA, the
arbitration agreement at issue provides that it applies to "any
dispute arising under or related in any way to" the Respondent's
Associate's Agreement, "including any Dispute arising under
federal, state or local laws, statutes or ordinances." Judge Land
concludes that all of the Respondent's claims in the California
Action fall within the scope of the arbitration provision in
Paragraph 10 of her Associate's Agreement, as they are disputes
"arising under or related in any way to" the Associate's Agreement
governing her relationship with Aflac.
Additionally, Judge Land concludes that Paragraph 10.4 of the
Respondent's Associate's Agreement contains a valid waiver of her
right to act as a representative to bring claims against Aflac on a
collective and/or class-wide basis.
III. Conclusion
In light of these findings of fact and conclusions of law, Judge
Land finds that both of the requirements for arbitrability under
Section 4 of the FAA are met in the case. Accordingly, he granted
the Petition.
In accordance with Paragraph 10 of her Associate's Agreement and
pursuant to the FAA, the Respondent is ordered to submit any and
all claims she has against Aflac arising out of or relating in any
way to her contractual engagement with Aflac to binding arbitration
on an individual basis, to the extent she wishes to pursue any such
claims, including without limitation those claims alleged by
Respondent in the class-action complaint she filed in Cinquemani v.
American Family Life Assurance Company of Columbus, Case No. CIV SB
2135234, in the Superior Court of the State of California for the
County of San Bernadino.
In accordance with Paragraph 10.5 of her Associate's Agreement, the
Respondent is enjoined from taking any further steps to prosecute
against Aflac any claims arising out of or relating in any way to
her contractual engagement with Aflac, other than through
arbitration on an individual basis pursuant to the terms of the
Respondent's Associate's Agreement.
Because the Order and Final Judgment disposes of all issues pending
before the Court, the action is dismissed in its entirety. The
parties will bear their own costs.
A full-text copy of the Court's March 9, 2022 Order & Final
Judgment is available at https://tinyurl.com/2p9akcn3 from
Leagle.com.
ANALOG DEVICES: Ryan Asset Files Suit in Del. Chancery Ct.
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A class action lawsuit has been filed against Analog Devices, Inc.
The case is styled as Ryan Asset Management, LLC, Walter E. Ryan
Jr., and other similarly situated v. Analog Devices, Inc., James R.
Bergman, Joseph R. Bronson, Maryann Wright, Mercedes Johnson,
Robert E. Grady, Tracy Accardi, Tunc Doluca, William D. Watkins,
William P. Sullivan, Case No. 2022-0255 (Del. Chancery Ct., March
17, 2022).
The case type is stated as "Breach of Fiduciary Duties."
Analog Devices, Inc., also known simply as Analog --
https://www.analog.com/en/index.html -- is an American
multinational semiconductor company specializing in data
conversion, signal processing and power management technology,
headquartered in Wilmington, Massachusetts.[BN]
The Plaintiffs are represented by:
Blake Bennett,=, Esq.
COOCH & TAYLOR PA-WILMINGTON
1000 W St 10th Fl.
Wilmington, DE 19899
Phone: (302) 984-3889
Fax: (302) 984-3939
Email: bbennett@coochtaylor.com
APPAMAN INC: Joyner Files ADA Suit in S.D. New York
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A class action lawsuit has been filed against Appaman Inc. The case
is styled as Sharon Joyner, individually, and on behalf of all
others similarly situated v. Appaman Inc., Case No. 1:22-cv-02226
(S.D.N.Y., March 17, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Appaman Inc. -- https://www.appaman.com/ -- offers children's
clothing with a unique Scandinavian perspective on Ameripop iconic
imagery & cutting edge apparel.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
ATLAS RETAIL: Misclassifies Workers as I.C., THOMPSON Suit Alleges
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MICHEL THOMPSON and BRANDI GREEN, individually and on behalf of all
similarly situated persons v. ATLAS RETAIL SERVICES, INC., ATLAS
INSTALLATIONS, INC., JASON PARRISH, Individually, and DOLGENCORP OF
TEXAS, INC., Case No. 4:22-cv-00854 (S.D. Tex., March 16, 2022)
sues over Atlas and their owner/control person, Jason Parrish
regarding the company's business plan that includes hiring
traveling merchandisers and misclassifying them as independent
contractors despite the fact that the workers are treated as and
have all of the characteristics of employees.
Dolgencorp of Texas, Inc., which does business under the trade name
of Dollar General, knowingly utilizes Atlas workers and exerts
enough control over the day-to-day job functions of the Atlas
workers to make Dollar General a joint employer with Atlas.
According to the complaint, Atlas and Dollar General break the law
in order to avoid paying overtime pay to merchandisers, saving the
Defendants money and allowing them to gain an unfair advantage
over competitors who follow the law in their employment practices.
Plaintiffs Michel Thompson and Brandi Green are two of a number of
salaried merchandisers hired by Atlas and utilized by Dollar
General.
The Plaintiffs bring this lawsuit on their own behalf and on behalf
of their former co-workers against Defendants to recover unpaid
overtime that is mandated by the Fair Labor Standards Act (FLSA).
Dollar General hires Atlas to "remodel" Dollar General Stores.
Atlas hires individuals to form crews of approximately One worker
is called the "team lead," and is the liaison with the Dollar
General representative and is generally in charge of the crew and
their work. However, a Dollar General representative is on-site at
the store being remodeled during the entire process. The Dollar
General representative is the person ultimately responsible for the
work being performed and determines how that work is done, assigns
duties to each crew member and monitors the progress and quality of
the work.
Atlas classifies the crew members as "independent contractors."
Atlas pays each worker a weekly payment for each remodel. This
payment is determined solely by Atlas and does not vary unless
Atlas decides to change it. Atlas assigns the crews to remodel
particular locations and both Atlas and Dollar General supervise,
monitor, and direct the workers in the manner and conduct of their
work.
Atlas provides the tools to its workers that are required for the
work, and the work is performed at Dollar General's stores
according to Dollar General's procedures, instructions, and direct
supervision. The Atlas workers have no ability to increase their
profit or loss due to their own efforts. Atlas and Dollar General
totally control the workers' pay and the method of getting paid.
Thompson worked for Atlas as a merchandiser from early 2021 until
June of 2021 and then again between November of 2021 and March of
2022.
Green has worked for Atlas as a merchandiser between February of
2021 and the present time.
During the time Thompson and Green worked for Atlas servicing
Dollar General locations, Plaintiffs regularly worked in excess of
40 hours per week.
Atlas purported to pay Plaintiffs and their co-workers on a salary
basis, that is, a set amount of pay for a week's work.
Atlas, however, did not always pay Plaintiffs and their co-workers
the same amount of pay each week. At various times, if a worker,
including Plaintiffs, did not work the full number of assigned days
for the week, Atlas paid the workers less than the promised salary,
added the suit.
If the workers worked more than the assigned days or provided
additional services, such as unloading trucks or helping to finish
up remodels at other locations after their assigned location had
been completed, Atlas sometimes paid the worker more than the
promised salary.
The workers who are similarly situated are properly defined as:
"All individuals who are/were employed or engaged by and paid
on
a salary basis by Defendants Atlas Retail Services, Inc. and/or
Atlas Installations, Inc. during the three-year period preceding
the filing of this Complaint to perform work as merchandisers
for Dollar General and other retailers and who were classified
as independent contractors, paid on a 1099 basis."[BN]
The Plaintiff is represented by:
Josef F. Buenker, Esq.
THE BUENKER LAW FIRM
P.O. Box 10099
Houston, TX 77206
Telephone: 713-868-3388
Facsimile: 713-683-9940
E-mail: jbuenker@buenkerlaw.com
BLISTEX INC: Faces Madhavan Suit Over Contaminated Spray Products
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SEEMA MADHAVAN, on behalf of herself and all others similarly
situated v. BLISTEX INC., Case No. 1:22-cv-01350 (N.D. Ill., March
15, 2022) is a class action on behalf of the Plaintiff and all
others similarly situated against Blistex for the manufacture,
marketing, and sale of Odor-Eaters Spray Powder and Odor-Eaters
Stink Stoppers Spray (the Products) that are contaminated with the
carcinogenic impurity benzene.
According to the complaint, the Products are not designed to
contain benzene (nor is the presence of benzene disclosed in any
way on the Products' labels), and in fact no amount of benzene is
acceptable in the Products. The presence of benzene in the Products
renders them unsafe and worthless, and unsuitable for their
principal and intended purpose.
The Products are anti-fungal and foot odor reducing drug products
regulated by the United States Food & Drug Administration ("FDA")
pursuant to the federal Food, Drug and Cosmetics Act ("FDCA"). The
presence of benzene in the Products renders them adulterated and
misbranded. As a result, the Products are illegal to sell under
federal law and therefore are worthless.
Benzene is a component of crude oil, gasoline, and cigarette smoke,
and is one of the elementary petrochemicals. The Department of
Health and Human Services has determined that benzene causes cancer
in humans. Likewise, the FDA lists benzene as a "Class solvent"
that "should not be employed in the manufacture of drug substances,
excipients, and drug products because of [its] unacceptable
toxicity."
The World Health Organization ("WHO") and the International Agency
for Research on Cancer ("IARC") have classified benzene as a Group
compound, defining it as "carcinogenic to humans." In 2011, the
United States Environmental Protection Agency introduced
regulations that lowered limits on benzene in gasoline due to its
carcinogenic nature.
Despite selling the Products contaminated with elevated levels of
benzene, the Defendant has not offered a refund to purchasers of
the Products, alleges the suit.
The Plaintiff brings this action on behalf of herself and the Class
for equitable relief and to recover damages and restitution for
breach of express warranty; breach of implied warranty; unjust
enrichment; violation of New York General Business; and violation
of the Magnuson-Moss Warranty Act.
The Plaintiff purchased Defendant's Odor-Eaters Stink Stoppers
Spray online through Amazon.com. The Product Plaintiff purchased
bore Lot Number D20C01 and expiration date March 2022. This Product
is one of the recalled Products as indicated by the FDA recall
announcement. Therefore, Ms. Madhavan purchased a Product
contaminated with dangerously high levels of benzene, the suit
added.
Blistex sold the contaminated Products directly and through
retailers in the state of New York and nationwide.[BN]
The Plaintiff is represented by:
Carl V. Malmstrom, Esq.
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLC
111 West Jackson Blvd., Suite 1700
Chicago, IL 60604
Telephone: (312) 984-0000
Facsimile: (212) 686-0114
- and -
L. Timothy Fisher, Esq.
Andrew J. Obergfell, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Facsimile: (212) 989-9163
E-Mail: ltfisher@bursor.com
aobergfell@bursor.com
BROOKLYN BREAD: Pavon Seeks Minimum, OT Wages Under FLSA & NYLL
---------------------------------------------------------------
ALEJANDRO PAVON, individually and on behalf of others similarly
situated v. LEONARD A. MOYGER A.K.A LENNY, DIMITRI A. BEYLIS, and
BROOKLYN BREAD CAFE LLC (D/B/A BROOKLYN BREAD CAFE), Case No.
1:22-cv-01429 (E.D.N.Y., March 15, 2022) seeks unpaid minimum and
overtime wages pursuant to the Fair Labor Standards Act of 1938 and
the New York Labor Law, and "spread of hours" and overtime wage
orders of the New York Commissioner of Labor.
Mr. Pavon worked for the Defendants in excess of 40 hours per week,
without appropriate minimum wage, overtime, and spread of hours
compensation for the hours that he worked. Rather, the Defendants
failed to maintain accurate record-keeping of the hours worked and
failed to pay Plaintiff Pavon appropriately for any hours worked,
either at the straight rate of pay or for any additional overtime
premium. Further, the Defendants allegedly failed to pay Plaintiff
Pavon the required "spread of hours" pay for any day in which he
had to work over 10 hours a day, says the suit.
Plaintiff Pavon was employed as a delivery worker at the
Defendants' restaurant. He was ostensibly employed as a delivery
worker. However, he was required to spend a considerable part of
his work day performing non-tipped duties, including but not
limited to cleaning the restaurant, sidewalk, and bathrooms,
sweeping/mopping the floor, transporting new merchandise to the
basement and stocking the refrigerator, taking out the trash, and
cleaning the juice machine (the "non-tipped duties"), the suit
added.
The Defendants own, operate, or control a sandwich shop, located at
436 Court Street, Brooklyn, NY, 11231 under the name "Brooklyn
Bread Cafe".[BN]
The Plaintiff is represented by:
Catalina Sojo, Esq.
CSM LEGAL, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
BROOKLYN EVENTS CENTER: Dawkins Files ADA Suit in E.D. New York
---------------------------------------------------------------
A class action lawsuit has been filed against Brooklyn Events
Center, LLC. The case is styled as Elbert Dawkins, on behalf of
himself and all others similarly situated v. Brooklyn Events
Center, LLC, Case No. 1:22-cv-01555 (E.D.N.Y., March 21, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Brooklyn Events Center, LLC -- http://www.centerbrooklyn.com/--
was founded in 2009. The company's line of business includes
operating and promoting professional and semiprofessional athletic
clubs and events..[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
CABALETTA BIO: Rosen Law Reminds of April 29 Deadline
-----------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, reminds
purchasers of the securities of Cabaletta Bio, Inc. (NASDAQ: CABA):
(i) pursuant and/or traceable to the offering documents issued in
connection with the Company's initial public offering conducted on
or about October 24, 2019 (the "IPO" or "Offering"); and/or (ii)
between October 24, 2019 and December 13, 2021, both dates
inclusive (the "Class Period"), of the important April 29, 2022
lead plaintiff deadline.
SO WHAT: If you purchased Cabaletta 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 Cabaletta class action, go to
https://rosenlegal.com/submit-form/?case_id=3749 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 29, 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 IPO offering
documents and defendants throughout the Class Period made false
and/or misleading statements and/or failed to disclose that: (1)
top-line data of the Phase 1 Clinical Trial indicated that
DSG3-CAART had, among other things, worsened certain participants'
disease activity scores and necessitated additional systemic
medication to improve disease activity after DSG3-CAART infusion;
(2) accordingly, DSG3-CAART was not as effective as the Company had
represented to investors; (3) therefore, the Company had overstated
DSG3-CAART's clinical and/or commercial prospects; and (4) as a
result, defendants' public statements were materially false and
misleading at all relevant times. When the true details entered the
market, the lawsuit claims that investors suffered damages.
To join the Cabaletta class action, go to
https://rosenlegal.com/submit-form/?case_id=3749 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.
Follow us for updates on LinkedIn:
https://www.linkedin.com/company/the-rosen-law-firm, on Twitter:
https://twitter.com/rosen_firm or on Facebook:
https://www.facebook.com/rosenlawfirm/.
Attorney Advertising. Prior results do not guarantee a similar
outcome. [GN]
CANADA: Supreme Court Dismisses Appeal to Stop Bullying Class Suit
------------------------------------------------------------------
The Canadian Press reports that the Supreme Court of Canada will
not hear an appeal from the federal government trying to stop a
$1.1 billion class action against the RCMP over bullying and
harassment.
The lead plaintiffs in the class action, veteran RCMP members
Geoffrey Greenwood and Todd Gray, say there was a culture of
systemic intimidation and harassment in the force that was condoned
by RCMP leadership.
The class action was first filed in 2018, and a Federal Court judge
certified it in 2020.
The federal government fought the case from the beginning, arguing
the RCMP had an internal administrative resolution process for
workplace harassment claims that precludes the use of a class
action to address the issue.
The Federal Court of Appeal upheld the lower court's ruling
certifying the class action last fall. The federal government then
sought to have the Supreme Court of Canada review the decision.
In a decision, the Supreme Court dismissed that application with
costs, paving the way for the class action to proceed.
As usual, the Supreme Court gave no reasons for the decision to
dismiss the appeal.
In a submission to the Supreme Court asking it to hear the appeal,
federal lawyers argued when there is an internal dispute process in
a workplace, court intervention should be exceptional.
Allowing the class action to proceed would harm the "broad mosaic"
of internal dispute mechanisms right across the federal public
service, including the RCMP, federal lawyers argued.
The plaintiffs argued that the recourse available to them was to go
up the chain of command to officers who were either part of the
problem or who chose to protect the perpetrators of the
harassment.
They called the government's appeal "the latest chapter" in decades
of government attempts to avoid accountability for the toxic
culture of bullying and intimidation in the RCMP.
RCMP Commissioner Brenda Lucki said in a written statement that she
respects the decision of the court.
"Separate and apart from the court proceedings, I recognize there
is always more we can do to improve our workplace," she said.
"Ensuring a more equitable workplace free of harassment, violence
and discrimination is a top priority for the RCMP."
She pointed to the launch last June of the Independent Centre for
Harassment Resolution, a centralized and independent unit
specifically established to resolve harassment and violence within
the force.
"I am determined to bring about positive change at the RCMP," Lucki
said.
This is not the first class action against the RCMP over alleged
harassment. In 2016, a settlement was reached in a class action
from hundreds of women who said they were sexually harassed and
abused while members of the RCMP.
Ultimately $125 million was paid to 2,304 women.
Our Morning Update and Evening Update newsletters are written by
Globe editors, giving you a concise summary of the day's most
important headlines. [GN]
CAPSTONE LOGISTICS: Nunez Suit Removed to N.D. Illinois
-------------------------------------------------------
The case styled as Anei Nunez, individually and on behalf of all
others similarly situated v. Capstone Logistics, LLC, Case No.
2022-CH-00547, was removed from the Circuit Court of Cook County,
Illinois, to the U.S. District Court for the Northern District of
Illinois on March 7, 2022.
The District Court Clerk assigned Case No. 1:22-cv-01185 to the
proceeding.
The nature of suit is stated as Other P.I.
Capstone Logistics -- https://www.capstonelogistics.com/ -- is the
leader in providing specialized, technology-enabled solutions for
the most challenging supply chains.[BN]
The Plaintiff is represented by:
David J. Fish, Esq.
Mara Ann Baltabols, Esq.
FISH POTTER BOLANOS, P.C.
111 East Wacker Drive, Suite 2600
Chicago, IL 60601
Phone: (312) 861-1800
Email: dfish@fishlawfirm.com
mara@fishlawfirm.com
The Defendant is represented by:
Gerald L. Maatman, Jr., Esq.
Jennifer Ann Riley, Esq.
Tyler Zachary Zmick, Esq.
SEYFARTH SHAW LLP
233 South Wacker Drive, Suite 8000
Chicago, IL 60606
Phone: (312) 460-5965
Email: gmaatman@seyfarth.com
jriley@seyfarth.com
tzmick@seyfarth.com
CELSIUS HOLDINGS: Bragar Eagel Reminds of May 15 Deadline
---------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized stockholder
rights law firm, announces that a class action lawsuit has been
filed against Celsius Holdings, Inc. ("Celsius" or the "Company")
(NASDAQ: CELH) in the United States District Court for the Southern
District of Florida on behalf of all persons and entities who
purchased or otherwise acquired Celsius securities between August
12, 2021 and March 1, 2022, both dates inclusive (the "Class
Period"). Investors have until May 15, 2022 to apply to the Court
to be appointed as lead plaintiff in the lawsuit.
Click here to participate in the action.
On March 1, 2022, after the market closed, Celsius disclosed that
it could not timely file its 2021 annual report due to "staffing
limitations, unanticipated delays and identified material errors in
previous filings." Specifically, Celsius "determined that the
calculation and expense of non-cash share-based compensation,
related to grants of stock options and restricted stock units
awarded to certain former employees and retired directors were
materially understated for the three and six month periods ended
June 30, 2021 and three and nine month periods ended September 30,
2021." As a result, management concluded that there was a material
weakness in the Company's internal controls over financial
reporting.
On this news, the Company's stock price fell to an intra-day low of
$56.21 per share on unusually heavy trading volume on March 2,
2022. Over the course of the March 2, 2022 and March 3, 2022
trading sessions, the Company's stock price fell a total of $5.20,
or 8.3% on unusually heavy trading volume to close at $57.60 per
share on March 3, 2022.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to
investors: (1) that the Company had improperly recorded expenses
for non-cash share-based compensation for second and third quarters
of 2021; (2) that, as a result, the Company's financial statements
for those periods would be restated, including to report a net loss
for the third quarter of 2021; (3) that there was a material
weakness in Celsius's internal controls over financial reporting;
and (4) that, as a result of the foregoing, Defendants' positive
statements about the Company's business, operations, and prospects
were materially misleading and/or lacked a reasonable basis.
If you purchased or otherwise acquired Celsius shares and suffered
a loss, are a long-term stockholder, have information, would like
to learn more about these claims, or have any questions concerning
this announcement or your rights or interests with respect to these
matters, please contact Brandon Walker or Alexandra Raymond by
email at investigations@bespc.com, telephone at (212) 355-4648, or
by filling out this contact form. There is no cost or obligation to
you.
About Bragar Eagel & Squire
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes. [GN]
CELSIUS HOLDINGS: Robbins LLP Discloses Securities Class Action
---------------------------------------------------------------
The Class: Shareholder rights law firm Robbins LLP informs
investors that a shareholder filed a class action on behalf of
persons and entities that purchased or otherwise acquired Celsius
Holdings, Inc. (NASDAQ: CELH) securities between August 12, 2021
and March 1, 2022, for violations of the Securities Exchange Act of
1934. Celsius develops, markets, and sells functional drinks and
liquid supplements.
If you would like more information about Celsius Holdings, Inc.'s
misconduct, click here.
What is this Case About: Celsius Holdings, Inc. (CELH) Must Restate
its Financial Statements
According to the complaint, on March 1, 2022, Celsius disclosed it
could not timely file its 2021 annual report due to "staffing
limitations, unanticipated delays and unidentified material errors
in previous filings." Specifically, Celsius "determined that the
calculation and expense of non-cash share-based compensation,
related to grants of stock options and restricted stock units
awarded to certain former employees and retired directors were
materially understated for the three and six month periods ended
June 30, 2021 and three and nine month periods ended September 30,
2021." As a result, management concluded that there was a material
weakness in the Company's internal controls over financial
reporting. On this news, the Company's stock fell to an intra-day
low of $56.21 per share on March 2, 2022. Over two trading
sessions, the Company's stock fell $5.20, or 8.3%, to close at
$57.60 per share on March 3, 2022.
During the class period, defendants failed to disclose to investors
that there was a material weakness in Celsius's internal controls
over financial reporting, which caused the Company to improperly
record expenses for non-cash share-based compensation for second
and third quarters of 2021. As a result, the Company's financial
statements for those periods would be restated, including to report
a net loss for the third quarter of 2021.
Next Steps: If you acquired shares of Celsius Holdings, Inc. (CELH)
between August 12, 2021 and March 1, 2022, you have until May 16,
2022, to ask the court to appoint you lead plaintiff for the class.
A lead plaintiff is a representative party acting on behalf of
other class members in directing the litigation. You do not have to
participate in the case to be eligible for a recovery.
All representation is on a contingency fee basis. Shareholders pay
no fees or expenses. [GN]
CENTRAL FLORIDA: Torres Suit Seek Unpaid Overtime Wages Under FLSA
------------------------------------------------------------------
Harold Torres and other similarly situated individuals v. Central
Florida Pool and Spa LLC, and Jeffrey M. Mckinney, individually,
Case No. 8:22-cv-00618 (M.D. Fla., March 16, 2022) seeks to recover
money damages for unpaid overtime wages and retaliation under the
the Fair Labor Standards Act.
Plaintiff Harold Torres is a resident of Polk County, Florida. He
is a covered employee for purposes of the Act.
The Plaintiff and all other current and former employees similarly
situated to Plaintiff worked more than 40 hours during one or more
weeks on or after January 2022 without being adequately
compensated, the lawsuit says.
The Defendant Central Florida Pool specializes in commercial and
residential pool remodeling, maintenance, and related services. The
Defendant maintains a place of business at 6205 Lake Wilson Road,
Davenport, Florida.[BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
CENTRAL PAYMENT: Class Deal in Custom Hair Suit Wins Prelim. Okay
-----------------------------------------------------------------
In the case, CUSTOM HAIR DESIGNS BY SANDY, LLC, on behalf of
themselves and all others similarly situated; and SKIP'S PRECISION
WELDING, LLC, on behalf of themselves and all others similarly
situated, Plaintiffs v. CENTRAL PAYMENT CO., LLC, Defendant, Case
No. 8:17CV310 (D. Neb.), Judge Joseph F. Bataillon of the U.S.
District Court for the District of Nebraska grants the Plaintiffs'
unopposed motion for preliminary approval of class action
settlement and for direction of class notice.
As described in the Motion, the Plaintiffs and Defendant Central
Payment ("CPAY") have entered into a class settlement agreement and
release, dated March 4, 2022. Having reviewed the Settlement,
including the proposed forms of class notice and other exhibits
thereto, the Motion, and the papers and arguments in connection
therewith, and good cause appearing, Judge Bataillon grants the
Motion. He preliminarily approves the Settlement and the terms
embodied therein pursuant to Fed. R. Civ. P. 23(e)(1).
Judge Bataillon affirms the Court's prior certification of the
Class, pursuant to Fed. R. Civ. P. 23(a), 23(b)(3), and 23(e),
consisting of: "All of CPAY's customers that, from Jan. 1, 2010, to
Oct. 31, 2020 (a) were assessed the TSSNF Fee (a/k/a TSYS Network
Fee); (b) were assessed the PCI Noncompliance Fee; (c) had their
contractual credit card discount rates increased above their
contractual rate by CPAY; and/or (d) had credit card transactions
shifted by CPAY from lower-cost rate tiers to higher-cost rate
tiers."
The Parties preserve all rights and defenses regarding class
certification in the event the Settlement is not finally approved
by the Court or otherwise does not take effect.
Judge Bataillon reappoints Plaintiffs Custom Hair Designs by Sandy,
LLC and Skip's Precision Welding, LLC as the Class Representatives
for the Class. He reappoints Wagstaff & Cartmell, LLP and appoints
Webb, Klase & Lemond, LLC as the Class Counsel for the Class.
Judge Bataillon appoints Epiq Systems, Inc. as the settlement
administrator and directs it to carry out all duties and
responsibilities of the settlement administrator as specified in
the Settlement and the Order.
Pursuant to Fed. R. Civ. P. 23(e)(1) and 23(c)(2)(B), Judge
Bataillon approves the proposed notice program set forth at section
VI of the Settlement, including the form and content of the
proposed forms of class notice attached as Exhibits 2A - 2D and 3
to the Settlement and the proposed procedures for Class members to
exclude themselves from the Class or object. He directs the
settlement administrator and the Parties to implement the notice
program as set forth in the Settlement.
In compliance with the Class Action Fairness Act of 2005, 28 U.S.C.
Section 1715, CPAY will work with the settlement administrator (at
its own cost) to promptly provide written notice of the proposed
Settlement to the appropriate authorities.
Within 10 days following entry of the Order, CPAY will provide to
the settlement administrator any updates to Class member contact
information that has occurred since it last produced such
information as well as a delineation of which Class members are
current customers, and which are former customers.
No later than 30 days following entry of the Order (the "notice
deadline"), the settlement administrator will send direct notice to
the Class members, in conformance with the terms of the Settlement
and substantially in the forms attached as Exhibits 2A-2D to the
Settlement, by email or postcard, as applicable. If a Class
member's individual notice is returned as undeliverable at least
seven days prior to the opt-out deadline, the settlement
administrator will use reasonable efforts to locate an updated
mailing address for the Class member and, if an updated address is
identified, re-mail the notice to their address as updated.
The settlement administrator will maintain the settlement website
-- which will include the long-form notice substantially in the
form attached as Exhibit 3 to the Settlement and otherwise be in
conformance with the terms of the Settlement -- and a toll-free
number that the Class members can call for additional information.
No later than 14 days before the final approval hearing, the
settlement administrator will provide to the Class Counsel for
filing a declaration confirming that the notice program has been
implemented in accordance with the Settlement and the Order
(including CAFA notice) and providing a final list of persons who
submitted timely and valid requests for exclusion from the Class.
Judge Bataillon approves the form and content of the proposed claim
form, in the form attached as Exhibit 2D to the Settlement,
approves the proposed process and methods set forth in the
Settlement for former customers to submit claims, and directs the
Parties and the settlement administrator to implement the claims
process pursuant to the terms of the Settlement. The class members
that are former customers must submit a valid claim form by the
claims deadline in order to receive a settlement payment pursuant
to the Settlement.
The class members may exclude themselves from the Class by mailing
to the settlement administrator (at the address listed in the
long-form notice) a written request for exclusion that is
postmarked no later than 60 days after the notice deadline. The
settlement administrator will provide copies of all timely and
valid requests for exclusion to the Class Counsel and CPAY's
counsel. The settlement administrator will promptly after receipt
provide copies of any objections, including any related
correspondence, to the Class Counsel and CPAY's counsel.
The Court will hold a final approval hearing on July 25, 2022,
2022, at 1:30 p.m. (CT).
By no later than 30 days before the opt-out deadline and objection
deadline, the Plaintiffs and the Class Counsel will file their: (a)
motion for final approval of the Settlement; and (b) motion for
attorneys' fees, expenses, and service awards. Promptly after they
are filed, these documents will be posted on the settlement
website.
By no later than 14 days before the final approval hearing, the
Parties will file any responses to any class member objections and
any replies in support of final settlement approval and/or in
support of Class Counsel's motion for attorneys' fees, expenses,
and service awards.
The Parties are directed to take all necessary and appropriate
steps to establish the means necessary to implement the Settlement
according to its terms should it be finally approved.
The following chart summarizes the dates and deadlines set by the
Order:
a. Last day for CPAY to provide the settlement administrator
with updated class data - 10 days after entry of administrator with
updated class data
b. Last day for CPAY to provide the settlement preliminary
approval Order (Notice deadline) - 30 days after entry of the
preliminary approval Order
c. Last day for Plaintiffs and Class Counsel to file motion
for final approval of the Settlement and motion for attorneys'
fees, expenses, and service awards - 60 days after entry of the
preliminary approval Order
d. Opt-out/objection deadline - 90 days after entry of the
preliminary approval Order
e. Last day for the Parties to file any responses to
objections and any replies in support of final settlement approval
and/or application for fees, expenses, and service awards - 14 days
before final approval hearing
e. Final approval hearing - July 25, 2022, 1:30 p.m., 150 days
after entry of the Claims deadline preliminary approval Order
A full-text copy of the Court's March 9, 2022 Order is available at
https://tinyurl.com/2p8tz47r from Leagle.com.
CHESAPEAKE ENERGY: Fails to Pay Overtime Pay, Armstrong Alleges
---------------------------------------------------------------
DOUGLAS ARMSTRONG, individually and on behalf of all others
similarly situated, Plaintiff v. CHESAPEAKE ENERGY CORPORATION,
Defendant, Case 5:22-cv-00225-G (W.D. Okla., March 18, 2022) is an
action against the Defendant's failure to pay the Plaintiff and the
class overtime compensation for hours worked in excess of 40 hours
per week.
Mr. Armstrong was employed by the Defendant as drilling
superintendent.
CHESAPEAKE ENERGY CORPORATION produces oil and natural gas. The
Company's operations are focused on discovering, developing, and
acquiring conventional and unconventional natural gas reserves
onshore in the United States. [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
Email: rprieto@eeoc.net
marbuckle@eeoc.net
CHURCHILL DOWNS: Mattera Suit Removed from State Court to W.D. Ky.
------------------------------------------------------------------
The class action lawsuit captioned as ANTHONY MATTERA, ET AL.,
individually and on behalf of those similarly situated, v. ROBERT
A. BAFFERT, ET AL., Case No. 22-CI-864, was removed from the
Jefferson Circuit Court in the Commonwealth of Kentucky, to the
United States District Court for the Western District of Kentucky
on March 16, 2022.
The Western District of Kentucky Court Clerk assigned Case No.
3:22-cv-00156-DJH to the proceeding.
Anthony Mattera and eighteen others filed a putative class action
complaint against Churchill Downs Incorporated (CDI), Robert A.
Baffert, and Bob Baffert Racing, Inc. in connection with their
alleged wagering losses based on the official results of the 2021
Kentucky Derby. They assert claims against CDI for negligence,
breach of contract, violation of the Kentucky Consumer Protection
Act, and unjust enrichment.
The Plaintiffs seek compensatory damages, punitive damages, and a
permanent injunction against CDI "from further conducting
Thoroughbred horse racing" unless CDI satisfies a number of their
conditions. They seek to proceed on behalf of themselves and a
class of all others whom they claim to be similarly situated.
Churchill Downs Incorporated is the parent company of Churchill
Downs. The company has evolved from one racetrack in Louisville,
Kentucky, to a multi American-state-wide, publicly traded company
with racetracks, casinos and an online wagering company among its
portfolio of businesses.[BN]
The Plaintiffs are represented by:
William D. Nefzger, Esq.
WILLIAM D. NEFZGER, PLLC
The BCCN Building
1041 Goss Avenue
Louisville, KY 40217
E-mail: will@bccnlaw.com
The Defendants are represented by:
Michael D. Meuser, Esq.
MILLER, GRIFFIN & MARKS, PSC
Security Trust Building
271 W. Short Street, Suite 600
Lexington, KY 40507
Telephone: (859) 255-6676
Email: mmeuser@kentuckylaw.com
- and -
Jeffrey S. Moad, Esq.
Philip W. Collier, Esq.
Chadwick A. McTighe, Esq.
Jeffrey S. Moad, Esq.
STITES & HARBISON, PLLC
400 W. Market Street, Ste. 1800
Louisville, KY 40202
Telephone: (502) 587-3400
E-mail: pcollier@stites.com
cmctighe@stites.com
jmoad@stites.com
CORE & MAIN: California Court Enters Judgment in Perez Class Suit
-----------------------------------------------------------------
Judge Mark S. Scarsi of the U.S. District Court for the Central
District of California entered a final judgment in the case,
ISHMAEL PEREZ, individually, and on behalf of other members of the
general public similarly situated, Plaintiff v. CORE & MAIN LP, a
Florida limited partnership; and DOES 1 through 10, inclusive,
Defendants, Case No. 5:20-cv-01821-MCS-KK (C.D. Cal.).
Pursuant to the Order Granting the Motion for Final Approval of the
Class Action Settlement and the Order Granting the Motion for
Attorneys' Fees, Costs and Expenses, and a Class Representative
Enhancement Payment, Judge Scarsi entered Judgment in the matter in
accordance with, and incorporates by reference the findings of, the
Court's Order and the Joint Stipulation of Class Action and PAGA
Settlement and Release.
As provided by the Order, all the Class Members who did not timely
and properly opt out from the Settlement are barred from pursuing,
or seeking to reopen, any of the Released Class Claims, as defined
by the Settlement Agreement.
Consistent with the definitions provided in the Settlement
Agreement, the Settlement Class consists of: All persons employed
by the Defendant in the State of California in non-exempt positions
at any time from June 30, 2016 through Nov. 15, 2021.
As provided by the Order, all PAGA Members are barred from
pursuing, or seeking to reopen, any of the Released PAGA Claims, as
defined by the Settlement Agreement.
Without affecting the finality of the Judgment, the Court will
retain exclusive and continuing jurisdiction over the action and
the parties, including all the Class Members, for purposes of
enforcing the terms of the Judgment entered.
A full-text copy of the Court's March 9, 2022 Judgment is available
at https://tinyurl.com/4m79f67n from Leagle.com.
DARTMOUTH-HITCHCOCK: Faces Adams Suit Over ERISA Violations
-----------------------------------------------------------
DEBRA M. ADAMS; DANILLIE L. MARS; MICHELLE L. MILLER; and ANITA W.
DAME, individually and on behalf of all others similarly situated,
Plaintiff v. DARTMOUTH-HITCHCOCK CLINIC; THE BOARD OF TRUSTEES OF
DARTMOUTH-HITCHCOCK CLINIC; THE ADMINISTRATIVE INVESTMENT OVERSIGHT
COMMITTEE OF DARTMOUTH-HITCHCOCK CLINIC; and JOHN DOES 1-30,
Defendants, Case No. 1:22-cv-00099 (D.N.H., Mar. 18, 2022) alleges
violation of the Employee Retirement Income Security Act of 1974.
The Plaintiffs allege in the complaint that the Defendants, as
"fiduciaries" of the Plan, breached the duties they owed to the
Plans, to the Plaintiffs, and to the other participants of the
Plans by, inter alia, (1) failing to objectively and adequately
review the Plans' investment portfolios with due care to ensure
that each investment option was prudent, in terms of cost; and (2)
failing to control the Plan's recordkeeping and administration
costs.
The Defendants' mismanagement of the Plans, to the detriment of
participants and beneficiaries, constitutes a breach of the
fiduciary duty of prudence. Their actions were contrary to actions
of a reasonable fiduciary and cost the Plans and its participants
millions of dollars, says the suit.
Dartmouth-Hitchcock Health provides health care services. The
Company offers alcohol and drug treatment, anesthesiology, breast
cancer programs, bariatric surgery, breast health, care management,
dialysis, renal, genetic counseling, and cosmetic services.
Dartmouth-Hitchcock Health serves patients in the State of New
Hampshire. [BN]
The Plaintiff is represented by:
Janine Gawryl, Esq.
GAWRYL & MACALLISTER
41 E. Pearl Street
Nashua, NH 03060
Telephone: (603) 882-3252
Facsimile: (603) 882-1572
Email: jgawryl@gmac-law.com
-and-
Donald R. Reavey, Esq.
CAPOZZI ADLER, P.C.
2933 North Front Street
Harrisburg, PA 17110
Telephone: (717) 233-4101
Facsimile: (717) 233-4103
Email: donr@capozziadler.com
-and-
Mark K. Gyandoh, Esq.
Gabrielle Kelerchian, Esq.
CAPOZZI ADLER, P.C.
312 Old Lancaster Road
Merion Station, PA 19066
Telephone: (610) 890-0200
Facsimile: (717) 233-4103
Email: markg@capozziadler.com
DAVID BROADBENT: Sexual Abuse Class Action Now Has 50 Jane Does
---------------------------------------------------------------
Genelle Pugmire at heraldextra.com reports that on Feb. 15, four
women came forward and filed a lawsuit in Fourth District Court
against Dr. David Broadbent, a Provo obstetrics and gynecology
specialist, accusing him of sexual battery, sexual assault and
intentional infliction of emotional distress.
Since the first media reports on Feb. 18, that list of four
plaintiffs has grown to a major class action lawsuit with 50 women,
according to Adam Sorenson, with the law firm Gross & Rooney and
attorney for the case.
Sorenson said they anticipate even more women will come forward.
Broadbent has practiced medicine in Provo and has been seeing
patients for nearly 40 years. He has also been given privileges at
Mountain Star hospitals, also named in the suit. He currently does
not have privileges with Mountain Star. Broadbent has also seen
patients at Utah Valley Hospital, owned by Intermountain
Healthcare.
According to Lance Madigan, spokesperson for Utah Valley Hospital,
Broadbent no longer is allowed to work in the hospital. "Dr.
Broadbent is an independent physician and has never been an
employee of Utah Valley Hospital. When the hospital learned of this
lawsuit, Dr. Broadbent's privileges to deliver babies or provide
any other services at the hospital were immediately suspended. We
take these allegations very seriously and are committed to ensure
the safety of our patients," Madigan said.
It was not until December 2021, when one of Broadbent's victims
related her experience on a podcast, that others began to come
forward with their own stories. Plaintiffs realized that they were
not alone, with many realizing Broadbent's actions were not
medically necessary - they were potentially unlawful. With
awareness spreading of the original podcast interview and the
lawsuit, numerous other women have since came forward and shared
their interactions with Broadbent.
By way of introducing the Jane Doe's statements, the court document
says: "A woman is rarely more vulnerable than when she is laying on
an exam table, unclothed, trusting a male gynecologist to provide
her with the medical care she needs. Dr. David H. Broadbent took
advantage of his position, Plaintiffs' vulnerability, and that
relationship of trust as he sexually battered and abused Plaintiffs
and numerous other women over the course of four decades."
Court documents indicate that, "Broadbent sees many of his patients
at his office, which is positioned one block from Brigham Young
University freshman dorms and in the middle of numerous apartment
complexes in which thousands of young female Brigham Young
University and Utah Valley University students live."
The Daily Herald attempted to reach out to Broadbent at his Provo
office, but the offices were closed. Due to the extremely graphic
nature of the accusations, the Daily Herald is not reproducing
details from all of the newly added cases.
It appears from the court documents and interviews from the Jane
Does that Broadbent had a pattern of abusive, painful and demeaning
behavior when giving women exams - specifically first-time pelvic
exams, first-time pregnancy exams, pre-marital exams and others
common when visiting an OB/GYN.
The North University Medical & Dental facility in Provo is shown
March 17, 2022. David Broadbent, facing multiple allegations of
sexual assault, maintained an office in the facility.
In some cases, Broadbent gave exams when they were not needed,
including one Jane Doe who said she came into his office to get
birth control pills before being given the same treatment alleged
by other plaintiffs.
The Jane Does also claim that Broadbent used unreasonable methods
for pelvic exams. Some allege Broadbent used his own fingers to
check vaginal areas while simultaneously putting other fingers in
the women's rectums.
Plaintiffs also noted that Broadbent, without any prior indication,
would run his hands up under their shirt or bra and feel their
breasts - an action that does not correlate to a proper breast
exam.
Broadbent, they claim, made crude remarks about the woman's body,
how lucky her new husband will be and more all while giving the
exam.
Dr. Tiffany Weber, OB/GYN with the University of Utah Hospital,
said the most important thing is for the patient and doctor to have
open lines of communication and to build a trusting relationship.
"Exams are done only when necessary. There are only a few occasions
such as a pap smear or addressing a complaint," Weber said.
Weber noted that fewer exams are given now than in past years, and
only when needed.
"The doctor's job is to support women in their journey of health,"
Weber added. "When women come to see an OB/GYN there has to be
trust. Our job is so critical."
If what these Jane Does allege is true, Weber said it is not only
abnormal, it is wildly inappropriate.
On Oct. 7, 2020, Jane Doe H.P., a resident of Utah County, asked to
be checked for a sexually transmitted disease. Broadbent joked
about how the swab would be painful and that he needed to swab her
until he counted to 100. Jane Doe H.P. thought he was joking, but
he held the swab in her vagina and moved it around slowly as he
counted to 100.
"He then refused to answer any questions and said, 'we'll find out
in a few days.' As she walked out, the nurse handed her lubrication
and Replens and said nothing. At her May 11, 2021 appointment,
Broadbent began doing a vaginal exam and started joking about not
being able to find her cervix. Then, laughing, with his fingers
still inside her, said, 'there it is! You're a girl!,'" according
to the court filing.
Most of the newly added Jane Doe's live in Utah County - and all of
them claim to have been traumatized, physically and emotionally
hurt, embarrassed and victimized by Broadbent.
In some of the cases, husbands were in the exam room but did not
know what was happening to their spouse while on the exam table.
Many of these couples didn't come forward earlier because they were
either afraid or felt they may not have understood the process.
In a number of the allegations, Broadbent was in the exam room
alone with the patient. When a nurse was in the room the Jane Does
said they were generally standing away from the doctor, at the door
and not acknowledging what he was doing.
In the case of Jane Doe B.H., who resides in Iron County, the court
documents say; "On Dec. 22, 2008, Jane Doe B.H. was ambulanced from
Sanpete Valley Hospital to Utah Valley Hospital in preterm labor at
33 weeks gestation. It was Jane Doe B.H.'s first pregnancy, and she
arrived completely terrified of what would happen to her unborn
baby. She was taken to the hospital's labor and delivery department
where she was having contractions and worried that she would
deliver before her husband could make it."
According to the documents, Broadbent told the nurse, "no food or
drink until we can get her contractions under control," after
having the nurse check her cervix for dilation while sitting in
guest chair.
"An hour later, Jane Doe B.H.'s husband made it to her room. They
had both been through so much that day that she did not want to
tell him how creepy her OBGYN was, so she kept the 'introduction'
she had with him to herself. Later that night, Jane Doe B.H.'s
brother-in-law came to the hospital to visit and see if her and her
husband needed anything. He sat in one of the visitor's chairs, and
her husband was on the couch, when Broadbent entered the room,
barely gave a glance to the fact that she not only had her husband
there, but that she had another visitor, and told Jane Doe B.H.
that he needed to check her vitals," reads the court documents.
"Broadbent then walked over to her and, using his stethoscope,
listened to her heartbeat. Jane Doe B.H. thought he was done when,
without any warning, Broadbent reached his hand completely down the
front of her gown, popping open one of the clasps on her hospital
gown, and, with his whole hand, groped Jane Doe B.H.'s breast. With
his hand still holding her breast, he asked, 'is it tender?' Before
Jane Doe B.H. could answer, Broadbent reached down and groped her
other breast, exposing part of her body which her brother-in-law
inadvertently saw. The way he groped her breast was nothing like
breast exams Jane Doe B.H. subsequently experienced," the document
continues.
Broadbent continued to be her OB/GYN provider for the next few
days. Each time he would enter her room, she would cringe and hope
that he would not touch her. Jane Doe B.H. and her husband talked
about asking for a new doctor to care for her, but were worried
that there would be repercussions that may compromise her or her
baby's care.
While still in the hospital Jane Doe B.H. was able to tell her
nurse and the nurse manager on the floor what had happened. The
nurse manager said she would escalate the situation. Jane Doe was
able to get a new OB/GYN, was later discharged and reached full
term before delivering her baby. She never heard from the hospital
if the case has been escalated.
Six years later, in the fall of 2014, Jane Doe B.H. was employed by
IHC and expecting her third child. Through quarterly meetings, she
started getting to know the hospital administrator at Utah Valley
Hospital. During one interaction with him and another
administrator, Jane Doe B.H. asked if Broadbent still worked at
Utah Valley Hospital. The administrator told her that he did, the
documents indicate.
"Jane Doe B.H. could not hide her distaste and replied, 'he
probably shouldn't be.' The Administrator kind of smiled and said
something like, 'yeah, some people don't like his personality.'
Jane Doe B.H. replied that that was not the problem and told the
Administrator all of the details from her experience with
Broadbent. The Administrator seemed extremely uncomfortable and
asked if Broadbent was touching her breasts to see if her milk had
come in yet. When she said no, the Administrator nodded and asked
if she would be comfortable sending an email to him with an account
of her experience so he could discuss it with the chief medical
officer for the hospital. Jane Doe B.H. agreed and emailed him all
the details she discussed with him earlier that day," the court
statement said.
"The next morning, Jane Doe B.H. received a call from the Chief
Medical Officer for Utah Valley Hospital (the 'CMO') who told her
that he reviewed the email she sent the Administrator and that he
discussed the case with the medical leads over labor and delivery.
The CMO told Jane Doe B.H. that when he brought up her case to the
doctors, they told him that they knew exactly which case he was
referring to (even six years later), that they were both very
familiar with her case. The CMO then went on to tell Jane Doe B.H.
that she should know that Broadbent was 'disciplined' for what he
did to her and that he had to undergo mandatory trainings which, to
the best of her knowledge, were described as sensitivity and
aggression trainings," reads the court documents.
While Jane Doe B.H. was somewhat happy to hear that at least
something was done, she was still displeased to hear that Broadbent
was still seeing patients. At that time, she was also too scared of
losing her job to push the case any further.
When the news about Broadbent's history of abusing his patients
came out, Jane Doe B.H. realized the full extent of what happened
to her, and that years after her complaint to the administrator and
CMO of Utah Valley Hospital, IHC was still working with Broadbent
and referring patients to him.
"After that many years, she still feels violated and angry that a
person in a position of care saw a terrified woman who was worried
about losing her baby and in an extremely vulnerable position as an
opportunity to "push the envelope" and see what he could get away
with-even being so brazen as to do it in front of two men in the
name of 'caring' for a patient," the document concludes.
Because of the number of plaintiffs added to the lawsuit, the cases
have been divided into two groups - incidents that have happened in
the past four years and incidents prior to four years ago.
According to Sorenson, nurses witnessing Broadbent's behavior have
not been added as defendants in the lawsuit, but will likely be
deposed. [GN]
DAYMARK REALTY: 11th Cir. Affirms Sanctions Against Catanzarite
---------------------------------------------------------------
In the case, In re: DAYMARK REALTY ADVISORS, INC., DAYMARK
PROPERTIES REALTY, INC., DAYMARK RESIDENTIAL MANAGEMENT, INC.,
Debtors. KENNETH J. CATANZARITE, Plaintiff-Appellant v. GCL, LLC,
INFINITY URBANCENTURY, LLC, ETIENNE LOCOH, TODD A. MIKLES,
SOVEREIGN CAPITAL MANAGEMENT GROUP, LLC, et al.,
Defendants-Appellees, Case No. 21-12766 (11th Cir.), the U.S. Court
of Appeals for the Eleventh Circuit affirmed the sanctions against
Kenneth Catanzarite.
Kenneth Catanzarite appeals the denial of relief from a judgment of
the bankruptcy court. The district court affirmed the award of
sanctions against Catanzarite for violating a preliminary
injunction that barred "the commencement of any further actions
under the same or similar facts or circumstances to" lawsuits he
had filed against bankruptcy creditors. The district court also
ruled that Catanzarite forfeited his opportunity to object to the
amount of sanctions imposed.
In 2018, Daymark Realty Advisors, Inc., Daymark Properties Realty,
Incorporated, and Daymark Residential Management, Inc., filed
separate petitions for bankruptcy under Chapter 11 of the
Bankruptcy Code, which the bankruptcy court consolidated.
Catanzarite, an attorney licensed in California and admitted to
appear pro hac vice in the bankruptcy court, filed adversary
complaints against the Daymark companies for Richard Carlson and
eleven other plaintiffs (the Carlson plaintiffs) and for Katherine
Looper and six other plaintiffs. Those plaintiffs complained of
breach of fiduciary duties and other wrongdoing in handling their
investments in several properties, including their interests as
tenants-in-common in the Congress Center, an office tower in
Chicago, Illinois. Later, Catanzarite moved successfully to convert
the bankruptcy petition to an action under Chapter 7 of the
Bankruptcy Code.
Mr. Catanzarite also sued Daymark creditors, including Todd Mikles,
Etienne Locoh, GCL, LLC, and other entities related to the Daymark
companies (the Mikles creditors). He filed nine putative class
action complaints for the Carlson plaintiffs in California and Utah
courts against various combinations of the Mikles creditors. The
complaints alleged that the creditors were alter egos of and shared
common control of and culpability for the Daymark companies'
mishandling of investments in the Congress Center and other
properties.
The Mikles creditors entered an agreement to settle their claims
with the bankruptcy trustee, Chad Paiva, and obtained an injunction
that stayed the nine lawsuits. After a hearing attended by
Catanzarite, the creditors, and the Trustee on Aug. 27, 2019, the
bankruptcy court issued an order that "enjoined continuation of the
nine Subject Lawsuits or the commencement of any further actions
under the same or similar facts or circumstances to the Subject
Lawsuits" for 60 days. On the Mikles creditors' motion, and after a
second hearing, the bankruptcy court issued a second preliminary
injunction that extended the stay to Dec. 11, 2019.
On Nov. 7, 2019, Catanzarite, as counsel for Katherine Looper and
nine other plaintiffs (the Looper plaintiffs), filed in a
California court a complaint alleging that Mikles and GCL assisted
the Daymark companies to defraud investors in connection with the
Congress Center and another property. Catanzarite also filed a
notice of lis pendens on GCL property.
The Mikles creditors moved to enforce the injunction and to impose
sanctions. The bankruptcy court held a hearing on the motion
attended by the creditors, Catanzarite, and the Trustee. The
Trustee testified about Catanzarite's actions, the effect on the
stay, and maintaining control of the property of the estate.
The bankruptcy court granted the motion and sanctioned Catanzarite.
The bankruptcy court ruled that Catanzarite, as counsel for and in
active concert with the Carlson plaintiffs, violated the injunction
by filing a civil action and lis pendens for the Looper plaintiffs
"based upon TIC ownership interests in the Congress Center," which
was the same subject "matter explicitly enjoined by the Second
Preliminary Injunction Order."
As directed by the bankruptcy court, the Mikles creditors and the
Trustee timely filed affidavits for and redacted time records of
the fees and expenses they sought as compensatory sanctions. On
Jan. 29, 2020, the Mikles creditors requested $49,020.50 in
attorneys' fees, and on Feb. 5, 2020, the Trustee requested $13,333
for similar expenses. On Feb. 25, 2020, almost three weeks after
the expiration of the seven-day deadline imposed by the bankruptcy
court, Catanzarite objected to the affidavits.
The bankruptcy court denied Catanzarite's objection to the
affidavits as untimely. It awarded the full amount of attorneys'
fees that the Mikles creditors requested as "incurred in connection
with responding to the Looper action and prosecuting the motion to
enforce, and not excessive." As to the Trustee, the bankruptcy
court awarded the Trustee $11,639.25 in attorneys' fees.
The district court affirmed the imposition of sanctions and the fee
awards. It rejected as refuted by the record Catanzarite's argument
that awarding sanctions to the Trustee violated his right to due
process.
The Eleventh Circuit holds that the bankruptcy court did not err in
determining that Catanzarite was bound by the injunction. Federal
Rule of Civil Procedure 65 binds an attorney to an injunction to
the same extent as a party. So, as the bankruptcy court explained,
Catanzarite could not "engage in conduct in which the parties, the
Carlson plaintiffs, themselves could not engage." Because
Catanzarite was bound to obey the injunction, the Eleventh Circuit
need not address his argument that the bankruptcy court erred by
ruling, in the alternative, that he was bound to the injunction by
acting in concert with his clients under Rule 65(d)(2)(C).
The bankruptcy court did not abuse its discretion, the Eleventh
Circuit holds. The bankruptcy court sanctioned Catanzarite for the
permissible purpose of compensating the Trustee and the Mikles
creditors for losses caused by Catanzarite's noncompliance. The
Trustee was entitled to compensation even though he did not move to
enforce the injunction or join the Mikles creditors' motion. The
Trustee was a party in the bankruptcy case in which the injunction
issued for the purpose of maintaining the status quo pending the
resolution of a proposed settlement between the estate and the
Mikles creditors. Catanzarite's violation of the injunction
interrupted the progress of the bankruptcy case and required the
Trustee and the Mikles creditors to incur expenses related to the
Looper action and to the enforcement of the injunction.
Mr. Catanzarite argues that he was denied due process with respect
to the award to the Trustee, but he was "given fair notice that his
conduct may warrant sanctions and the reasons why" as well as "an
opportunity to respond and to justify his actions." The motion to
enforce outlined Catanzarite's willful disobedience of the
injunction. The bankruptcy court afforded Catanzarite the
opportunity to object to the Trustee's affidavit and time records,
but Catanzarite delayed filing a response. This process was
sufficient to satisfy due process.
The bankruptcy court also did not abuse its discretion in
determining the fee awards. The bankruptcy court "carefully
reviewed the Affidavits and time records" the Trustee and the
Mikles creditors submitted and found that the fees were "incurred
in connection with responding to the Looper action and in
prosecuting" the motion to enforce the injunction. It noticed an
inadvertent duplication of fees by the Trustee and adjusted the
amount requested to account for the error. Catanzarite contests the
amounts of the awards, but he forfeited the opportunity to
challenge those amounts by failing timely to object to the
affidavits.
The Eleventh Circuit affirmed the sanctions against Mr.
Catanzarite.
A full-text copy of the Court's March 9, 2022 Order is available at
https://tinyurl.com/2p84bayr from Leagle.com.
DJGN LEXINGTON: Sullivan Seeks Minimum, OT Wages Under FLSA, KWHA
-----------------------------------------------------------------
CHRISTOPHER SULLIVAN, on behalf of himself and all others similarly
situated v. DJGN LEXINGTON, LLC d/b/a TONY'S STEAKS & SEAFOOD, Case
No. 5:22-cv-00064-DCR(E.D.N.Y., March 15, 2022) seeks to recover
unpaid minimum and overtime wages, unlawfully retained tips,
liquidated damages, attorneys' fees, and costs under the Fair Labor
Standards Act and under the Kentucky Wages and Hours Act.
The Plaintiff asserts his FLSA claims as a collective action,
pursuant to 29 U.S.C. section 216(b), and his KWHA claims as a
class action, pursuant to Fed. R. Civ. P. 23.
The Defendant allegedly pays tipped employees a tipped hourly wage
less than the statutory $7.25 per hour minimum wage (and $10.88 per
hour minimum overtime wage for hours worked over 40 in a workweek)
and relies on the "tip credit" provisions of the FLSA and KWHA to
satisfy its statutory minimum wage obligations. However, the
Defendant also requires employees to participate in a tip pooling
arrangement that violates both the FLSA and the KWHA.
The Defendant further violates the FLSA because it unlawfully
requires tipped employees to share tips with their employer and
members of management, in violation of 29 U.S.C. section
203(m)(2)(B), which states that "an employer may not keep tips
received by its employees for any purposes, including allowing
managers or supervisors to keep any portion of employees' tips" As
a result of this violation, Defendant is not permitted to rely on
the tip credit to satisfy its minimum wage and overtime obligations
under the FLSA and has failed to pay the required minimum wage,
pursuant to 29 U.S.C. section 206, and overtime wage, pursuant to
29 U.S.C. section 207. The Defendant has also unlawfully retained
these tips in violation of the express terms of 29 U.S.C. Section
203(m)(2)(B), says the suit.
The Plaintiff and those he seeks to represent are therefore
entitled to recover the statutory $7.25 per hour minimum wage (and
$10.88 per hour minimum overtime wage for hours worked over 40 in a
workweek) and all unlawfully retained tips, liquidated damages, and
all attorneys' fees and costs. 29 U.S.C. Section 216(b). The
Plaintiff asserts these FLSA claims as a collective action, on
behalf of himself and all others similarly situated, pursuant to
pursuant to 29 U.S.C. section 216(b).
Plaintiff Sullivan is a resident of Lexington, Fayette County,
Kentucky. He was employed at Defendant's Tony's Steaks & Seafood
restaurant in Lexington, Kentucky from approximately February 2015
through May 2021. During his employment, the Plaintiff worked
primarily as a server and, eventually, head server, receiving
hourly wages less than $7.25 per hour plus tips. The Plaintiff also
worked as a shift manager on a few occasions beginning in
approximately 2018.
DJGN Lexington is a Kentucky limited liability company
doingbusiness within this judicial district as Tony's Steaks &
Seafoods.[BN]
The Plaintiff is represented by:
David W. Garrison, Esq.
Joshua A. Frank, Esq.
BARRETT JOHNSTON MARTIN & GARRISON, LLC
Philips Plaza
414 Union Street, Suite 900
Nashville, TN 37219
Telephone: (615) 244-2202
Facsimile: (615) 252-3798
E-mail: dgarrison@barrettjohnston.com
jfrank@barrettjohnston.com
FEDEX CORP: Promos4Sale Sues Over Alleged Erroneous Quoted Price
----------------------------------------------------------------
PROMOS4SALE.COM, LLC, a Florida Limited Liability Company,
individually and on behalf of all of all others similarly situated
v. FEDEX CORP., a Delaware Corporation, Case No. 0:22-cv-60553-XXXX
(S.D. Fla., March 15, 2022) is brought on behalf of the class
representative, Promos4sale, and those similarly situated persons
throughout the United States who were erroneously and/or improperly
charged and billed an increased final amount in comparison to the
quoted price through FedEx's website via the Safari web browser,
which occurred prior to the completion of the transaction, and
thus, based on the misrepresentation of and/or failure to disclose
all itemized charges, for the previous four years prior to the
filing of this Class Action Complaint.
The Defendant is allegedly engaged in the business of providing
express delivery, courier, and/or shipping services, which can
allow persons to send single parcels and/or bulk deliver various
items in a global and/or worldwide capacity.
Consumers like Plaintiff seeking to utilize Defendant's services
have several options to choose from, including but not limited to
visiting Defendant's website at www.fedex.com.
As part of Defendant's services, Plaintiff has numerous methods as
to how to send and deliver its packages, which, among other things,
may be made by ground or air, to a residential or commercial
location, and whether to require a signature upon delivery -- all
of which will affect the price to be charged and billed, the
lawsuit says.[BN]
The Plaintiff is represented by:
Jeremy D. Friedman, Esq.
Paul A. Hankin, Esq.
THE DOWNS LAW GROUP, P.A.
3250 Mary Street, Suite 307
Coconut Grove, FL 33133
Telephone: (305) 444-8226
Facsimile: (305) 444-6773
E-mail: jfriedman@downslawgroup.com
phankin@downslawgroup.com
FIRST LOVE: Court Dismisses Calavan Class Suit With Prejudice
-------------------------------------------------------------
In the case captioned KATHERINE CALAVAN, individually and on behalf
of all others similarly situated, Plaintiff v. FIRST LOVE
INTERNATIONAL MINISTRIES, et al., Defendants, Case No. 21 C 185
(N.D. Ill.), Judge Charles P. Kocoras of the U.S. District Court
for the Northern District of Illinois, Eastern Division, granted
the Defendants' Motion to Dismiss Plaintiff Katherine Calavan's
Complaint and Motion to Dissolve the Preliminary Injunction.
I. Background
First Love claims it is a "non-denominational mission agency
founded for the purpose of bringing love and hope to people
residing in impoverished regions of the world." It operates several
orphanages, called Cultural Care Institutions ("CCIs"), in Kenya.
However, according to Calavan, First Love's former Director of
Social Services, this claim is false; the orphanages are not filled
with "orphans" as the term is commonly understood in the United
States, but rather children who have one or more living parents and
extended family members.
Ms. Calavan says First Love built a solicitation network, which she
calls the First Love Solicitation Enterprise, made up of First
Love, Defendant Loving InDeed, Inc., First Love's officer and
directors -- Defendants Steven Johnson, Jerry Winslow, Paul Loner,
Philip Guske, Robert Opperman, Phoebe Wilhelm, Dale Gray, Thomas
Clinton, and Robert Clinton (collectively, the "Individual
Defendants") -- and various John Doe Co-Conspirators, as well as
third-parties Little Lambs Kenya and Abba's House. Calavan alleges
the Enterprise solicits American donors online for money to build
CCIs and seeking "voluntourists" to visit the CCIs. She says the
Enterprise solicits the donations by building a "deceptive
tapestry" of Kenyan children in need, but the donations are
actually used for the Defendants' own personal economic gain and to
perpetuate the alleged sham orphanages.
Based on these allegations, Calavan claims the Defendants: (1)
violated the Racketeer Influenced and Corrupt Organizations Act
("RICO"), 18 U.S.C. 1962(c) (Count I); (2) conspired to violate
RICO, 18 U.S.C. 1962(d) (Count II); (3) violated all 50 states and
the District of Columbia's consumer protection acts (listing each
state's consumer protection act) (Count III); and (4) were unjustly
enriched (Count IV). In support of her RICO claims, Calavan alleges
the Defendants committed wire and mail fraud by making misleading
communications about First Love and its orphanages to solicit
donations. She also says the Defendants committed witness tampering
by harassing her and others in order to prevent reports to the
Kenyan government.
The Defendants now move to dismiss under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6).
II. Discussion
The Defendants move to dismiss the Complaint and to dissolve the
preliminary injunction.
A. Motion to Dismiss
Ms. Calavan alleges violations of RICO and various state law
claims.
1. RICO Claims
The Defendants move to dismiss Calavan's RICO claims for several
reasons. First, the Defendants argue Calavan lacks standing to
bring a RICO claim. They also contend Calavan alleges an
impermissible extraterritorial application of RICO. Finally, the
Defendants assert Calavan fails to sufficiently allege her RICO
claims.
First, Judge Kocoras finds that Calavan alleges an injury to her
property and has standing to bring her RICO claims. Calavan alleges
more than intangible emotional harm. Calavan claims she lost money
through donations to First Love. And money, of course, is a form of
property.
Second, while it is true that solicitation and receipt of
contributions from American citizens and the use of certain means
in the solicitation and transmission of funds occurred in the US,
the truth or falsity of representations made in their inducement
necessarily addresses foreign law and international norms. In other
words, the only conduct in dispute is what occurred in Kenya and
whether that conduct violated Kenyan law and international norms.
In Judge Kocoras' view, this is not the type of conduct the wire
fraud, mail fraud, or RICO statutes were intended to remedy.
Calavan therefore alleges an impermissible extraterritorial
application of RICO.
Third, Calavan fails to adequately allege wire fraud and mail fraud
for several reasons. First, Calavan fails to allege the fraud with
particularity. Similarly, Calavan generally alleges First Love and
Loving InDeed advertised and received donations online. But she
does not allege when these posts were made, who posted any of them,
who received them, and how the recipients were deceived.
Additionally, many of Calavan's allegations are not in furtherance
of the scheme to defraud.
Judge Kocoras denies Calavan's request to conduct discovery. He
says, for without an adequately detailed description of the
predicate acts of mail and wire fraud, a complaint does not provide
either the defendant or the court with sufficient information to
determine whether or not a pattern of racketeering activity has
been established.
Judge Kocoras also finds that Calavan does not allege any degree of
operation or management of the Enterprise by any of the Individual
Defendants. Calavan's allegations fall far short of Rule 9(b)'s
requirement that "a RICO plaintiff plead sufficient facts to notify
each defendant of his alleged participation in the scheme." Thus,
her claims against the Individual Defendants fail for this reason
too.
Lastly, Calavan fails to adequately allege a conspiracy to violate
RICO. She makes no allegations of any agreements between the
Defendants and, thus, her RICO conspiracy claim fails.
Accordingly, Calavan's RICO claims are dismissed.
2. State Law Claims
Ms. Calavan's state law claims must be dismissed for the same
reasons, Judge Kocoras holds. First, state laws ordinarily do not
apply beyond the state's boundaries. Second, Claims brought under
state consumer protection acts based on fraudulent conduct must be
alleged with particularity under Rule 9(b), which Calavan fails to
do for the reasons stated. Thus, her claims under each of the 50
states' consumer protection acts are dismissed. Additionally,
Calavan's unjust enrichment claim is also dismissed because unjust
enrichment is not a separate cause of action and is based on
insufficiently plead fraudulent conduct.
Because Calavan alleges an impermissible extraterritorial
application of RICO and the various state laws, Judge Kocoras
dismisses her claims with prejudice.
B. Motion to Dissolve Preliminary Injunction
The Defendants move to dissolve a preliminary injunction to prevent
the harassment of witnesses in connection with the case. Because he
dismisses the Complaint, Judge Kocoras grants the Motion but denies
the request for sanctions. He notes, though, that the injunction
was narrowly focused on alleged conduct by the Defendants that
could have interfered with potential witnesses in the case. That
obligation continues by law throughout any further proceedings in
the Court or the Seventh Circuit, whether the conduct occurs in the
U.S. or Kenya.
III. Conclusion
For the reasons he mentioned, Judge Kocoras granted the Defendants'
Motion to Dismiss and Motion to Dissolve the Preliminary Injection.
The motions for temporary restraining order are denied as moot. The
Complaint is dismissed with prejudice. Civil case terminated.
A full-text copy of the Court's March 9, 2022 Memorandum Opinion is
available at https://tinyurl.com/3f6yr8vz from Leagle.com.
FORD MOTOR: Illinois Court Stays Discovery in Rodriguez Class Suit
------------------------------------------------------------------
In the case, ENRIQUE RODRIGUEZ, INDIVIDUALLY ON BEHALF OF HIMSELF
AND ALL OTHERS SIMILARLY SITUATED Plaintiff v. FORD MOTOR COMPANY,
Defendant, Case No. 21 C 2553 (N.D. Ill.), Judge Thomas M. Durkin
of the U.S. District Court for the Northern District of Illinois,
Eastern Division, granted Ford's motion to stay discovery.
I. Background
The putative class action involves an alleged defect in the trunk
wiring of the 2015 Ford Mustang that causes a malfunction of the
rear-view camera. Pending before the Court is Ford's motion to stay
discovery.
II. Analysis
Judge Durkin explains that the filing of a motion to dismiss does
not automatically stay discovery. But the Court has broad
discretion in managing discovery. In determining whether to grant a
stay, "the court may consider the following factors: (1) whether a
stay will unduly prejudice or tactically disadvantage the
non-moving party, (2) whether a stay will simplify the issues in
question and streamline the trial, and (3) whether a stay will
reduce the burden of litigation on the parties and on the court. A
stay is often appropriate where "the motion to dismiss can resolve
a threshold issue or where discovery may be especially burdensome
and costly to the parties."
A. Prejudice to Rodriguez
Judge Durkin opines that there will be no prejudice to Rodriguez if
a stay is imposed. First, the Court can discount "the general
prejudice of having to wait for resolution." Rodriguez has not
identified any witnesses or documents that will be lost or no
longer discoverable if discovery is stayed, and the general
prejudice of waiting for the Court to rule on the motion to
dismiss, which it plans to do expeditiously, is not a reason to
deny the stay.
Further, Rodriguez seeks no immediate injunctive relief. Though he
alleges a "highly dangerous defect" in the car's wiring, he does
not allege any physical injuries have come of it which may
necessitate immediate discovery. Nor does he even allege he has
stopped driving his vehicle. Judge Durkin does not agree with
Rodriguez that there is an "imminent health threat" present in the
case.
B. Simplifying the Issues
Rodriguez argues that Ford has not shown, specifically, how staying
discovery would simplify the case. However, and without taking any
position as to the merits of Ford's arguments for dismissal, the
fact that the issues raised could potentially be dispositive weighs
in favor of staying discovery, Judge Durkin holds.
Ford seeks dismissal based on alleged pleading defects in each of
Rodriguez's claims. The ruling on any part of the motion to dismiss
-- some of which involve legal issues such as privity or a duty to
disclose -- has potential to dispose of certain claims brought by
Rodriguez, making discovery unnecessary, or, at least narrowing its
scope. Ford has shown that a stay of discovery will simplify the
issues going forward.
C. Burden of Discovery
Given the burden, time, and expense often associated with
responding to discovery in a putative class action, courts
regularly stay discovery pending a ruling on a motion to dismiss.
Ford expects Rodriguez will seek to discover far-reaching,
company-wide information including business and design information
in its requests for production. Rodriguez argues Ford's contention
that discovery will be burdensome is "conjecture."
To the contrary, however, Judge Durkin finds that Rodriguez has
stated an intention to seek discovery regarding "the design,
materials, and workmanship of the allegedly defective trunk lid
wiring harness, Ford's internal testing and validation procedures,
consumer complaints, and warranty claims regarding the defect, and
countermeasures and service programs undertaken by Ford in response
to the alleged defect." Undoubtedly, this undertaking would be
expensive and time-consuming. The burden presented by discovery in
the case weighs in favor of granting the stay.
III. Disposition
Judge Durkin concludes that a ruling in Ford's favor on the motion
to dismiss -- in whole or in part -- could greatly affect the cost
and scope of discovery taken. Granting the stay will reduce the
burden on the parties until the Court rules on the motion to
dismiss. Ford's motion to stay discovery is granted.
A full-text copy of the Court's March 9, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/4jtwtskb from
Leagle.com.
GARRETT MOTION: Faces Securities Suit in New York Court
-------------------------------------------------------
Garrett Motion Inc. disclosed in its Form 10-K Report for the
fiscal year ended December 31, 2021, filed with the Securities and
Exchange Commission on February 14, 2022, that it is facing a class
action asserting claims under Sections 10(b) and 20(a) of the
Exchange Act.
On October 5, 2020, a putative securities class action complaint
was filed against certain current and former Garrett officers and
directors in the United States District Court for the Southern
District of New York. This case bears the caption "The Gabelli
Asset Fund, The Gabelli Dividend & Income Trust, The Gabelli Value
25 Fund Inc., The Gabelli Equity Trust Inc., SM Investors LP and SM
Investors II LP, on behalf of themselves and all others similarly
situated, v. Su Ping Lu, Olivier Rabiller, Alessandro Gili, Peter
Bracke, Sean Deason, Craig Balis, Thierry Mabru, Russell James,
Carlos M. Cardoso, Maura J. Clark, Courtney M. Enghauser, Susan L.
Main, Carsten Reinhardt, and Scott A. Tozier", Case No.
1:20-cv-08296-JPC (S.D. N.Y.). Said action also asserted claims
under Sections 10(b) and 20(a) of the Exchange Act.
Garrett Motion Inc. designs, manufactures and sells highly
engineered turbocharger and electric-boosting technologies and is
based in Switzerland.
GRAB HOLDINGS: Faces Peccarino Suit Over Stock Price Drop
---------------------------------------------------------
INCENZO PECCARINO, individually and on behalf of all others
similarly situated v. GRAB HOLDINGS LIMITED, ANTHONY TAN, and PETER
OEY, Case No. 1:22-cv-02189 (S.D.N.Y. March 16, 2022) is a class
action on behalf of persons and entities that purchased or
otherwise acquired Grab securities between November 12, 2021 and
March 3, 2022, inclusive pursuing claims against the the Defendants
under the Securities Exchange Act of 1934.
On December 1, 2021, Grab became a public entity via a business
combination with Altimeter Growth Corp., a special purpose
acquisition company.
On March 3, 2022, at 7:01 a.m. Eastern, Grab disclosed that its
fourth quarter revenues had declined 44% from the previous quarter
and reported a $1.1 billion loss for the quarter. Grab's Chief
Financial Officer attributed the poor financial results to
"investing heavily" in driver incentives and stated that it would
take one or two quarters "to get that equilibrium between drivers
and riders, between supply and demand."
On this news, the Company's stock price fell $2.04, or 37.3%, to
close at $3.28 per share on March 3, 2022, on unusually heavy
trading volume.
Throughout the Class Period, the Defendants allegedly made
materially false and/or misleading statements, as well as failed to
disclose material adverse facts about the Company's business,
operations, and prospects. Specifically, Defendants failed to
disclose to investors that that Grab's driver supply declined
during the third quarter.
As a result of Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the Company's
securities, Plaintiff and other Class members have suffered
significant losses and damages, says the suit.
Plaintiff Peccarino purchased Grab securities during the Class
Period, and suffered damages as a result of the alleged federal
securities law violations and false and/or misleading statements
and/or material omissions.
Grab offers a superapp that operates primarily across the
deliveries, mobility, and digital financial services sectors in
Southeast Asia. The Individual Defendants are officers of the
company.[BN]
The Plaintiff is represented by:
Gregory B. Linkh, Esq.
Robert V. Prongay, Esq.
Charles H. Linehan, Esq.
Pavithra Rajesh, Esq.
GLANCY PRONGAY & MURRAY LLP
230 Park Ave., Suite 358
New York, NY 10169
Telephone: (212) 682-5340
Facsimile: (212) 884-0988
E-mail: glinkh@glancylaw.com
GRAB HOLDINGS: Glancy Prongay Files Securities Fraud Lawsuit
------------------------------------------------------------
Glancy Prongay & Murray LLP has filed a class action lawsuit in the
United States District Court for the Southern District of New York,
captioned Peccarino v. Grab Holdings Limited, et al., (Case No.
22-cv-2189) on behalf of persons and entities that purchased or
otherwise acquired Grab Holdings Limited ("Grab" or the "Company")
(NASDAQ: GRAB, GRABW) securities between November 12, 2021 and
March 3, 2022, inclusive (the "Class Period"). Plaintiff pursues
claims under Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934 (the "Exchange Act").
Investors are hereby notified that they have 60 days from this
notice to move the Court to serve as lead plaintiff in this
action.
If you suffered a loss on your Grab investments or would like to
inquire about potentially pursuing claims to recover your loss
under the federal securities laws, you can submit your contact
information at www.glancylaw.com/cases/grab-holdings-limited/. You
can also contact Charles H. Linehan, of GPM at 310-201-9150,
Toll-Free at 888-773-9224, or via email at
shareholders@glancylaw.com or visit our website at
www.glancylaw.com to learn more about your rights.
On March 3, 2022, at 7:01 a.m. Eastern, Grab disclosed that its
fourth quarter revenues had declined 44% from the previous quarter
and reported a $1.1 billion loss for the quarter. Grab's Chief
Financial Officer attributed the poor financial results to
"invest[ing] heavily" in driver incentives and stated that it would
take one or two quarters "to get that equilibrium between drivers
and riders, between supply and demand."
On this news, the Company's stock price fell $2.04, or 37.3%, to
close at $3.28 per share on March 3, 2022, on unusually heavy
trading volume.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to
investors: (1) that Grab's driver supply declined during the third
quarter; (2) that, as a result, Grab continued to invest heavily in
driver and consumer incentives to "preemptively recalibrate driver
supply"; (3) that, as a result, the Company's financial results
would be adversely impacted, including, among other things, a
significant decline in revenue; and (4) that, as a result of the
foregoing, Defendants' positive statements about the Company's
business, operations, and prospects were materially misleading
and/or lacked a reasonable basis.
If you purchased or otherwise acquired Grab securities during the
Class Period, you may move the Court no later than 60 days from
this notice to ask the Court to appoint you as lead plaintiff. To
be a member of the Class you need not take any action at this time;
you may retain counsel of your choice or take no action and remain
an absent member of the Class. If you wish to learn more about this
action, or if you have any questions concerning this announcement
or your rights or interests with respect to these matters, please
contact Charles Linehan, Esquire, of GPM, 1925 Century Park East,
Suite 2100, Los Angeles California 90067 at 310-201-9150, Toll-Free
at 888-773-9224, by email to shareholders@glancylaw.com, or visit
our website at www.glancylaw.com. If you inquire by email please
include your mailing address, telephone number and number of shares
purchased.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules. [GN]
GRAB HOLDINGS: Robbins Geller Reminds of May 16 Deadline
--------------------------------------------------------
Robbins Geller Rudman & Dowd LLP announces that purchasers of Grab
Holdings Limited (NASDAQ: GRAB; GRABW) securities between November
12, 2021 and March 3, 2022, inclusive (the "Class Period") have
until May 16, 2022 to seek appointment as lead plaintiff in
Peccarino v. Grab Holdings Limited, No. 22-cv-02189 (S.D.N.Y.).
Commenced on March 16, 2022, the Grab class action lawsuit charges
Grab and certain of its top executive officers with violations of
the Securities Exchange Act of 1934.
If you suffered significant losses and wish to serve as lead
plaintiff of the Grab class action lawsuit, please provide your
information by clicking here. You can also contact attorney J.C.
Sanchez of Robbins Geller by calling 800/449-4900 or via e-mail at
jsanchez@rgrdlaw.com. Lead plaintiff motions for the Grab class
action lawsuit must be filed with the court no later than May 16,
2022.
CASE ALLEGATIONS: Grab offers a superapp that operates primarily
across the deliveries, mobility, and digital financial services
sectors in Southeast Asia. On December 1, 2021, Grab became a
public entity via a business combination with Altimeter Growth
Corp., a special purpose acquisition company (also known as a
"SPAC" or blank-check company).
The Grab class action lawsuit alleges that, throughout the Class
Period, defendants made false and misleading statements and failed
to disclose that: (i) Grab's driver supply declined during the
third quarter; (ii) as a result, Grab continued to invest heavily
in driver and consumer incentives to preemptively recalibrate
driver supply; (iii) thus, Grab's financial results would be
adversely impacted, including, among other things, a significant
decline in revenue; and (iv) consequently, defendants' positive
statements about Grab's business, operations, and prospects were
materially misleading and/or lacked a reasonable basis.
On March 3, 2022, Grab disclosed that its fourth quarter revenues
had declined 44% from the previous quarter and reported a $1.1
billion loss for the quarter. Grab's Chief Financial Officer,
defendant Peter Oey, attributed the poor financial results to
"invest[ing] heavily" in driver incentives and stated that it would
take one or two quarters "to get that equilibrium between drivers
and riders, between supply and demand." On this news, Grab's stock
price fell by more than 37%, damaging investors.
Robbins Geller has launched a dedicated SPAC Task Force to protect
investors in blank check companies and seek redress for corporate
malfeasance. Comprised of experienced litigators, investigators,
and forensic accountants, the SPAC Task Force is dedicated to
rooting out and prosecuting fraud on behalf of injured SPAC
investors. The rise in blank check financing poses unique risks to
investors. Robbins Geller's SPAC Task Force represents the vanguard
of ensuring integrity, honesty, and justice in this rapidly
developing investment arena.
THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation
Reform Act of 1995 permits any investor who purchased Grab
securities during the Class Period to seek appointment as lead
plaintiff in the Grab class action lawsuit. A lead plaintiff is
generally the movant with the greatest financial interest in the
relief sought by the putative class who is also typical and
adequate of the putative class. A lead plaintiff acts on behalf of
all other class members in directing the class action lawsuit. The
lead plaintiff can select a law firm of its choice to litigate the
class action lawsuit. An investor's ability to share in any
potential future recovery of the class action lawsuit is not
dependent upon serving as lead plaintiff.
ABOUT ROBBINS GELLER RUDMAN & DOWD LLP: Robbins Geller Rudman &
Dowd LLP is one of the world's leading complex class action firms
representing plaintiffs in securities fraud cases. The Firm is
ranked #1 on the 2021 ISS Securities Class Action Services Top 50
Report for recovering nearly $2 billion for investors last year
alone - more than triple the amount recovered by any other
plaintiffs' firm. With 200 lawyers in 9 offices, Robbins Geller's
attorneys have obtained many of the largest securities class action
recoveries in history, including the largest securities class
action recovery ever - $7.2 billion - in In re Enron Corp. Sec.
Litig. Please visit http://www.rgrdlaw.comfor more information.
Attorney advertising.
Past results do not guarantee future outcomes.
Services may be performed by attorneys in any of our offices.[GN]
HOLIDAY HAVEN: Loses Petition to Appeal in Ruhlen Antitrust Suit
----------------------------------------------------------------
In the case, GEORGE RUHLEN, CRP/CRE PONCE DE LEON OWNER, LLC,
CRP/CRE PORTFOLIO VENTURE, LLC, CRP/CRE MEMBER, LLC, J. ALLEN BOBO,
LUTZ, BOBO, & TELFAIR, P.A., Petitioners v. HOLIDAY HAVEN
HOMEOWNERS, INC., Respondent, Case No. 21-90022 (11th Cir.), the
U.S. Court of Appeals for the Eleventh Circuit denied the
Defendants' Petition for Permission to Appeal pursuant to the Class
Action Fairness Act.
The Plaintiffs, a group of current and former mobile homeowners and
their homeowners' association, filed the action in Florida state
court against numerous Defendants, alleging violations of the
Florida Antitrust Act and the Americans with Disabilities Act. The
Plaintiffs framed their suit as a "representative action" filed
pursuant to Florida Rule of Civil Procedure 1.222.
The Defendants removed the case to the U.S. District Court for the
Middle District of Florida based on the ADA claim and the Class
Action Fairness Act. CAFA allows removal of a "class action," which
it defines to mean "any civil action filed under rule 23 of the
Federal Rules of Civil Procedure or similar State statute or rule
of judicial procedure authorizing an action to be brought by 1 or
more representative persons as a class action."
In an amended complaint, the Plaintiffs omitted their ADA claim and
added other state-law claims, including one alleging violations of
the Florida Mobile Home Act, Fla. Stat. Section 723.001 et seq.
Under that count, the homeowners' association reiterated that it
was authorized to file the action in its "representative capacity
under Rule 1.222 of the Florida Rules of Civil Procedure and
Section 723.075" of the Florida Statutes. The district court then
sua sponte remanded the case to state court. In so doing, the
district court determined that federal-question jurisdiction no
longer existed because the amended complaint asserted only
state-law claims and that CAFA didn't provide jurisdiction because
a claim brought in a representative capacity under Florida Rule of
Civil Procedure 1.222 "is not a class action, as that term is
understood for CAFA jurisdiction."
The Defendants then filed with the Court a petition for permission
to appeal. Before deciding whether it should grant the Defendants'
petition, the Eleventh Circuit must determine whether it has
jurisdiction to consider their appeal. It holds that it does not.
As a general rule, the Eleventh Circuit may not review a district
court's decision to remand a case based on its determination that
it lacks subject-matter jurisdiction. As relevant in the case,
however, there is a statutory exception to the general rule that
applies where the appeal is "from an order of a district court
granting or denying a motion to remand a class action to the State
court from which it was removed."
While the case may involve a "class action" that was "removed" from
a "State court"—that is the crux of the parties' dispute --
neither party ever filed a "motion to remand" the suit to state
court. Rather, the district court sua sponte remanded the case.
Accordingly, the Eleventh Circuit must decide whether the phrase
"an order of a district court granting or denying a motion to
remand a class action" covers a district court's sua sponte remand
order.
Accordingly, the Eleventh Circuit finds itself constrained to
conclude (colloquialisms aside) that when a court sua sponte orders
a remand, it is not "granting" its own "motion" within the meaning
of Section 1453(c)(1) -- any more than it would be "denying" its
own motion in the absence of such an order. For good or ill, the
ordinary meaning of the word "motion" refers to a request or an
application made by a party; it "does not contemplate something a
court does on its own."
A Elevent Circuit dissenting colleague disagrees because she
believes that Congress's "clear intention" in enacting Section
1453(c)(1) was to include sua sponte remands. The dissent contends
that our interpretation of Section 1453(c)(1) produces an absurd
result. And again, the Eleventh Circuit can agree that omitting sua
sponte orders from the statute's scope may seem a little (or
perhaps more than a little) odd. But the absurdity bar is a high
one, and "something that may seem odd is not absurd." As Justice
Story famously -- and graphically -- explained, the absurdity
exception to the plain-meaning rule governs only where "applying
the provision to the case would be so monstrous, that all mankind
would, without hesitation, unite in rejecting the application." The
Eleventh Circuit just doesn't think that the case meets the
"monstrousness" threshold.
Because the remand in the case was not ordered upon the motion of
any party, Section 1453(c)(1)'s exception doesn't apply in the
case, the Eleventh Circuit holds. The result may be an odd one, but
it's the one that the statute's plain language requires. "If
Congress thinks that we've misapprehended its true intent -- or,
more accurately, that the language that it enacted inaccurately
reflects its true intent -- then it can and should say so by
amending" Section 1453(c)(1).
Because it lacks jurisdiction to review the district court's sua
sponte remand, the Eleventh Circuit denied the Petition for
Permission to Appeal pursuant to the Class Action Fairness Act.
A full-text copy of the Court's March 9, 2022 Order is available at
https://tinyurl.com/3subzn9w from Leagle.com.
ILLINOIS: Court Denies Bid to Certify Class in Thompson v. IDOC
---------------------------------------------------------------
In the case captioned WALTER THOMPSON, FLOYD PARKER, JERMAINE
MURPHY, LAKETHAE ROBINSON, DIVONTE CALHOUN, Plaintiffs v. ROB
JEFFREYS, et al., Defendants, Case No. 22-cv-438-NJR (S.D. Ill.),
Judge Nancy J. Rosenstengel of the U.S. District Court for the
Southern District of Illinois issued a Memorandum and Order:
a. denying Plaintiff Walter Thompson's motion for class action
certification;
b. denying without prejudice Thompson's motion for preliminary
injunction;
c. reserving ruling on Thompson's motion to appoint counsel.
I. Introduction
The matter is before the Court sua sponte for case management. On
March 4, 2022, Plaintiffs Walter Thompson, Floyd Parker, LaKethae
Robinson, Jermaine Murphy, and DiVonte Calhoun, all inmates of the
Illinois Department of Corrections ("IDOC") who are currently
incarcerated at Shawnee Correctional Center, filed a Complaint
pursuant to 42 U.S.C. Section 1983 against various IDOC employees
for constitutional violations.
Although purported to be a Complaint filed on behalf of all the
Plaintiffs, only Thompson signed the Complaint. The Complaint also
appears to be written by Thompson and contains detailed allegations
of his conditions at Shawnee and his complaints regarding various
individuals at Shawnee. The Complaint only mentions Plaintiffs
Calhoun, Murphy, Robinson, and Parker in the last few pages and
identifies the grievance they submitted about the conditions at
Shawnee. In addition to the Complaint, there are also pending
motions for copies, class action status, counsel, and preliminary
injunction. The motions only contain Thompson's signature.
Under the circumstances, Judge Rosenstengel deems it necessary to
address several preliminary matters before completing a review of
the case pursuant to 28 U.S.C. Section 1915A.
II. Signatures
As previously stated, only Thompson signed the Complaint and all of
the pending motions. Federal Rule of Civil Procedure 11 requires
that every pleading be signed by the parties. None of the
Plaintiffs have signed the pleadings nor have they submitted a
filing fee or requested to proceed in forma pauperis ("IFP").
Because the other Plaintiffs have not complied with Federal Rule of
Civil Procedure 11, or even seek to proceed as Plaintiffs in the
case, Judge Rosenstengel orders Plaintiffs Calhoun, Murphy,
Robinson, and Parker to submit signed Complaints, as well as the
full filling fee or IFP motion, or risk dismissal from the action.
III. Group Litigation by Multiple Prisoners
The Plaintiffs may bring their claims jointly in a single lawsuit
if they desire. However, Judge Rosenstengel must advise them of the
consequences of proceeding in this manner (including their filing
fee obligations) and give them an opportunity to withdraw from the
case or sever their claims into individual actions. If the
Plaintiffs desire to continue this litigation as a group, any
proposed amended complaint, motion, or other document filed on
behalf of multiple plaintiffs must be signed by each plaintiff. A
non-attorney cannot file or sign papers for another litigant, and
as long as the plaintiffs appear without counsel in the action,
each plaintiff must sign documents for himself. The Plaintiffs are
warned that future group motions or pleadings that do not comply
with this requirement will be stricken pursuant to Rule 11(a).
IV. Pending Motions
Plaintiff Thompson has filed several pending motions with the
Complaint including a motion for copies, motion for class action,
motion to appoint counsel, and motion for preliminary injunction.
As to the motion for copies, Thompson asks for a copy of his
Complaint (which is 58 pages in length) and copies of his pending
motions. Thompson is required to keep copies of his own filings --
the Court does not provide free copies of filings. Thompson notes
that he believes library staff make extra copies of his filings and
distribute them to employees, so he does not want to pursue copies
through the normal channels. He offers no evidence to support this
allegation, nor does he indicate that he is unable to afford
copies. If Thompson wishes to obtain copies of his filings, he can
purchase them from the Clerk's Office at the standard copying rate.
His motion for copies is denied.
As to his motion for class action certification, Judge Rosenstengel
holds that Thompson fails to meet the standard for class action
status at this time. Based on the record before the Court, she
cannot determine that class certification would be appropriate at
this time. Thus, the motion for class certification is denied.
As to Thompson's motion for preliminary injunction, his motion
includes a list of conditions he takes issue with at Shawnee,
including toxic water, heavy mold, issues with the air quality,
sewage, and conditions of the cell. He also takes issue with the
Defendants' Covid-19 protocols. His motion includes a list of
requested relief, including adequate drinking water, cleaning
supplies, out-of-cell time, updates on Covid-19 protocols, and the
preservation of camera footage. Although Thompson states the
conditions he faces and relief he seeks, he has not shown that he
is entitled to a preliminary injunction at this time. Thus, his
request for a preliminary injunction is denied without prejudice.
If the Plaintiffs believe they are entitled to a preliminary
injunction, they may file a motion indicating how they meet the
elements for a preliminary injunction to issue. The Plaintiffs are
reminded that all future motions must be signed by all of the
Plaintiffs or the documents will be stricken.
As to the pending motion for counsel, Judge Rosenstengel reserves
ruling on this motion until such time as a preliminary review of
the Complaint pursuant to 28 U.S.C. Section 1915A is conducted.
Review of the Complaint will not be completed until all the
Plaintiffs have submitted signed Complaints. Further, Judge
Rosenstengel Plaintiffs must either pay the full filing fee or
submit motions to proceed without prepayment of fees.
V. Disposition
For the reasons she stated, Judge Rosenstengel ordered that all the
Plaintiffs, except Thompson, will advise the Court in writing by
April 6, 2022, whether they wish to continue as a plaintiff in this
group action. If, by that deadline, the Plaintiffs have not advised
the Court that they wish to participate in the action, they will be
dismissed from the lawsuit and will not be charged a filing fee for
the action. In other words, the Plaintiffs need only take action if
they wish to continue as a plaintiff in this group action. They
will also file a signed Complaint by April 6, 2022. Failure to file
a signed Complaint will also result in their dismissal from the
case.
If, on the other hand, a plaintiff wants to pursue his claims
individually in a separate lawsuit, he will so advise the Court in
writing by April 6, 2022. That plaintiff's claims will then be
severed into a new action where a filing fee will be assessed in
lieu of a filing fee in the case.
The Plaintiffs are advised that the Complaint is currently awaiting
preliminary review by the Court pursuant to 28 U.S.C. Section
1915A, and it has not yet been served on the Defendants. Further
action by the Plaintiffs is required before the Court can complete
its preliminary review of this matter under 28 U.S.C. Section
1915A. When this review is completed, a copy of the Court's
screening order will be forwarded to each Plaintiff who remains in
the action.
The Plaintiffs are further advised that each of them is under a
continuing obligation to keep the Clerk of Court and each opposing
party informed of any change in his address; the Court will not
independently investigate a Plaintiff's whereabouts. This will be
done in writing and not later than seven days after a transfer or
other change in address occurs. Failure to comply with the Order
will cause a delay in the transmission of court documents and may
result in dismissal of the action for want of prosecution.
The Clerk is directed to send a copy of the Order to each
Plaintiff.
A full-text copy of the Court's March 9, 2022 Memorandum & Order is
available at https://tinyurl.com/2p8ucjbs from Leagle.com.
IMMUNOVANT INC: Faces Securities Suit in New York Court
-------------------------------------------------------
Roivant Sciences Ltd. disclosed in its Form 10-Q Report for the
quarterly period ended December 31, 2021, filed with the Securities
and Exchange Commission on February 14, 2022, that a class action
was filed against the company's subsidiary, Immunovant, alleging it
violated Sections 10(b) and 20(a) of the Securities Exchange Act of
1934.
In February 2021, a putative securities class action complaint was
filed against Immunovant, a subsidiary of the company, and certain
of its current and former officers in the U.S. District Court for
the Eastern District of New York on behalf of a class consisting of
those who acquired Immunovant's securities from October 2, 2019 and
February 1, 2021.
The complaint alleged that Immunovant and certain of its officers
violated Sections 10(b) and 20(a) of the Securities Exchange Act of
1934, as amended, by making false and misleading statements
regarding the safety of its drug "batoclimab" and seeks unspecified
monetary damages on behalf of the putative class and an award of
costs and expenses, including reasonable attorneys' fees.
On December 29, 2021, the U.S. District Court appointed a lead
plaintiff. On February 1, 2022, the lead plaintiff filed an amended
complaint adding both (i) the Company and (ii) Immunovant's
directors and underwriters as defendants, and asserting additional
claims under Section 11, 12(a)(2), and 15 of the Securities Act of
1933.
Pending court approval of the parties' stipulation, defendants are
not required to respond to this amended complaint. The deadline for
the lead plaintiff to file the operative amended complaint is March
15, 2022.
Roivant Sciences Ltd. is a pharmaceutical company based in the
United Kingdom.
JOHN A. TOMASINO: State of Florida Files Suit in N.D. Florida
-------------------------------------------------------------
A class action lawsuit has been filed John A. Tomasino, et al. The
case is styled as State of Florida, Stephen P. Wallace, and all
Florida taxpayers similarly situated v. John A. Tomasino,
individually under Bivens Act; Cole Scott And Kissane Pa; Carlos H.
Gamboa; Carib Petroleum, Corporately; Steven P White, Individually;
White Group, Corporately, Case No. 4:22-cv-00113-MW-MJF (S.D.N.Y.,
March 15, 2022).
The nature of suit is stated as Racketeer/Corrupt Organization for
the Civil Rights Act.
John A. Tomasino is the Clerk of the Court at the Florida Supreme
Court.[BN]
The Plaintiffs appear pro se.
KANSAS CITY: Baseball Players Awarded Over $1.8M in Penalties
-------------------------------------------------------------
Bernise Carolino at hcamag.com reports that a recent California
case involved the application of the Save America's Pastime Act,
which amended the Fair Labor Standards Act (FLSA) to exempt certain
baseball players from the statute's minimum wage and overtime
requirements, effective Mar. 23, 2018.
In Senne v. Kansas City Royals Baseball Corp., et al., the
plaintiffs, who were minor league baseball players, filed a
complaint against the Office of the Commissioner of Baseball and
Major League Baseball (MLB) franchises under the FLSA.
The plaintiffs wanted to sue on behalf of certain classes under the
Federal Rules of Civil Procedure's Rule 23, governing class
actions. Their claims involved alleged minimum wage and overtime
violations under the laws of California and certain other states.
The defendants argued that the commissioner was never the
plaintiffs' employer under the FLSA or state laws. In response to
the plaintiffs' claim that the defendants violated s. 204 of
California's Labor Code, or the "payday" law, the defendants
contended that it didn't provide employees with a private right of
action.
The California class made claims alleging minimum wage and overtime
violations under state laws, as well as derivative claims relating
to waiting time penalties and wage statement penalties under
California's Labor Code. The alleged breaches involved work that
minor leaguers performed during the regular championship season in
the California League.
The United States District Court for the Northern District of
California partly granted and partly denied the plaintiffs' partial
summary judgment motion. The court held that, under the FLSA and
the applicable state laws, the plaintiffs were employees throughout
the calendar year, and MLB was a joint employer.
The court rejected the plaintiffs' FLSA claims to the extent that
they were based on the defendants' conduct after the effectivity
date of the Save America's Pastime Act. The court also denied the
plaintiffs' assertions against the former commissioner and their
argument alleging a violation of s. 204 of California's Labor
Code.
However, the court did make rulings in the plaintiffs' favor.
First, the court found that the defendants were liable to the
plaintiffs for $1,882,650 in penalties in connection with the
California wage statement claim, and were incorrect in the way that
they allocated signing bonuses and tuition payments to offset
minimum wage liability.
The court also noted that disputed factual issues prevented the
court from deciding, through summary judgment, whether per diems,
signing bonuses or tuition payments constituted wages that could be
offset against minimum wage liability under the FLSA, Florida law
and Arizona law.
The court then tackled the issue of travel time. For California
League players, the time spent traveling to away games was
compensable under state laws. With respect to modes of team
transport such as team buses, travel time to away games during the
training season was compensable under the FLSA, Florida law, and
Arizona law, as long as the bus wasn't scheduled to leave before
any other scheduled activities. [GN]
KI INTERNATIONAL: Hobbs Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against KI International
Corporation. The case is styled as Alexandra Hobbs, on behalf of
herself and all other persons similarly situated v. KI
International Corporation, Case No. 1:22-cv-02193 (S.D.N.Y., March
16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
KI International Corporation -- https://www.kiintl.com/ -- is a
warehouse with various martial arts supplies, from clothing to
equipment, plus embroidery services.[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
KONINKLIJKE PHILIPS: Pittman Suit Transferred to W.D. Pennsylvania
------------------------------------------------------------------
The case styled as Robert Pittman, on behalf of himself and all
others similarly situated v. Koninklijke Philips N.V., Philips
North America LLC, Philips R.S. North America, LLC, Case No.
2:22-cv-00012, was transferred from the U.S. District Court for the
District of Montana, to the U.S. District Court for the Western
District of Pennsylvania on March 15, 2022.
The District Court Clerk assigned Case No. 2:22-cv-00450-JFC to the
proceeding.
The nature of suit is stated as Contract Product Liability.
Koninklijke Philips N.V. -- https://www.philips.com/global -- is a
Dutch multinational conglomerate corporation that was founded in
Eindhoven in 1891..[BN]
The Plaintiff is represented by:
John L. Amsden, Esq.
BECK, AMSDEN & STALPES, PLLC
2000 South 3rd Avenue, Unit A
Bozeman, MT 59715
Phone: (406) 586-8700
Fax: 586-8960
Email: amsden@becklawyers.com
- and -
Patrick W. Pendley, Esq.
24110 Eden St., PO Drawer 71
Plaquemine, LA 70764
Phone: (225) 687-6396
Fax: (225) 687-6398
Email: pwpendley@pbclawfirm.com
- and -
Sydney E. Best, Esq.
BECK, AMSDEN & STALPES, PLLC
2000 South 3rd Avenue, Unit A
Bozeman, MT 59715
Phone: (406) 586-8700
Fax: (406) 586-8960
Email: sydney@baslawyers.com
LAGOS LOUNGE: Estrada Files FLSA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Lagos Lounge Inc., et
al. The case is styled as Antonio Estrada, individually and on
behalf of others similarly situated v. Lagos Lounge Inc. doing
business as: Lagos Restaurant and Lounge, John-Paul Wadibia, Case
No. 1:22-cv-02123 (S.D.N.Y., March 15, 2022).
The lawsuit is brought over alleged violation of the Fair Labor
Standards Acts for the Denial of Overtime Compensation.
Lagos Lounge Inc. -- http://www.lagosloungenyc.com/-- has been
providing retail, bars and lounges from Brooklyn.[BN]
The Plaintiff is represented by:
Catalina Sojo, Esq.
CSM LEGAL P.C.
60 East 42nd Street #4510
New York, NY 10128
Phone: (212) 317-1200
Fax: (212) 317-1620
Email: catalina@csm-legal.com
LIBERTY UNIVERSITY: Wins Bid for Summary Judgment in Elleby Suit
----------------------------------------------------------------
In the case, JOERELLA ELLEBY, Plaintiff v. LIBERTY UNIVERSITY,
INC., Defendant, Civil Action No. 5:21-CV-00093-KDB-DCK (E.D.N.C.),
Judge Kenneth D. Bell of the U.S. District Court for the Western
District of North Carolina, Statesville Division, granted in part
and denied in part the Defendant's Motion for Summary Judgment.
I. Background
In October 2020, a person who was interested in Liberty
University's nursing education program gave the university consent
to contact what later became Plaintiff's telephone number. This
previous user of the phone number entered information on the
webpage located at http://www.liberty.edu/online-at-libertyin the
"Request Information" text box/form, providing Liberty with the
number. A short time after this consent, the Plaintiff took over
the phone number when she purchased a new cellular telephone.
Unaware that the phone number now had a different owner and seeking
to provide information about its online-education program as
requested, Liberty continued to send pre-recorded communications to
the phone number based on the previous user's consent.
The Plaintiff, however, did not consent to these calls from Liberty
University. Further, according to the Plaintiff the prerecorded
messages did not provide a way during the calls to opt-out of
receiving future calls. After the Plaintiff, through counsel,
contacted Liberty in April 2021 to complain about the unwanted
communications, Liberty immediately removed the phone number from
its contact list.
The Plaintiff filed the suit alleging that Liberty violated (1) 47
U.S.C. Section 227(b) by sending pre-recorded communications to her
cellular telephone without her prior express consent and (2) 47
U.S.C. Section 227(c)(1) and 47 C.F.R. Section 64.1200(c)(2) by
making a "telephone solicitation" to an individual who had her
number on the National Do-Not-Call Registry. She attempts to bring
such claims on behalf of herself and a purported class of all
individuals who received similar calls on their cellular phones
during the previous four years.
The matter is before the Court on the Defendant's Motion for
Summary Judgment, which the Plaintiff opposes. Judge Bell has
carefully reviewed the motion and considered the parties' briefs
and exhibits.
II. Discussion
The Plaintiff received multiple pre-recorded calls from the
Defendant without her consent. However, prior to making the calls,
the Defendant had received consent from a previous user of the
number and was unaware it had been reassigned to the Plaintiff.
Citing to the FCC's interpretation of the Telephone Consumer
Protection Act ("TCPA") and the decision in Danehy v. Time Warner
Cable Enterprises (an adopted M&R from the E.D.N.C.), the Defendant
moves for summary judgment, arguing that the Plaintiff cannot
prevail under the TCPA because Defendant called Plaintiff in
reasonable reliance on the consent of the prior user.
In short, the question before the Court is whether a caller, who
contacts a phone number whose previous user provided consent but
whose current user did not, is liable under the TCPA. While several
circuits have answered a closely related question (whether "called
party" means "intended party" in the TCPA), both questions remain
undecided in the Fourth Circuit.
First, and foremost, Judge Bell holds that there is no basis in the
text of the TCPA for adoption of a reasonable reliance or good
faith defense. The TCPA's language is consistent with a strict
liability statute that does not require any intent for liability,
excluding when awarding treble damages. Congress passed the TCPA to
protect individuals from receiving invasive and unsolicited calls.
Thus, adopting a good faith or reasonable reliance defense not only
would have no basis in the text but also would contravene the
stated purpose of the TCPA.
The FCC nevertheless has seemingly interpreted the TCPA to reject
the imposition of the strict liability reflected in the statute. In
2015, the FCC created a "one-call" safe harbor that allowed callers
to "reasonably rely" on prior express consent to avoid liability
for a caller's first call to a reassigned number. However, the D.C.
Circuit Court of Appeals later rejected this interpretation as
arbitrary and capricious, citing ACA International v. FCC, 885 F.3d
687, 705-06, 435 U.S. App. D.C. 1 (D.C. Cir. 2018). Subsequently,
the FCC issued a new order emphasizing that the D.C. Circuit did
not question the FCC's authority to interpret the TCPA "not to
demand the impossible of callers" and established a comprehensive
database that contains information regarding reassigned numbers.
Callers who utilize the database will not be liable for calling a
reassigned number if the database fails to report the reassigned
number. Thus, the Defendant asks the Court to adopt a reasonable
reliance or good faith standard, which it argues is in line with
the FCC's interpretation.
Judge Bell finds that the Defendant's argument that the Court
should adopt a good faith defense in the TCPA is unconvincing.
Multiple circuit courts have consistently answered a different but
related question, rejecting the argument that "called party"
actually means "intended party" in the TCPA. While the Defendant
contends its argument regarding a "good faith" defense is separate
and distinct, Judge Bell finds that the Defendant essentially asks
the Court to adopt an "intended party" approach by reading into the
statute Defendant's asserted affirmative defense. Neither the
language nor the concept of an "intended" party appears in the
statute.
Accordingly, every circuit court to opine on the issue has
concluded that the term "called party" refers to the individual
that actually receives the calls, as opposed to the "intended
party" of those calls. In sum, there is no basis to conclude that
the TCPA affords Liberty University a reasonable reliance or good
faith defense. Therefore, the Motion will be denied with respect to
the 47 U.S.C. Section 227(b) claim.
III. Order
Judge Bell granted in part and denied in part the Defendant's
"Motion for Summary Judgment. He denied the motion and summary
judgment as to Count One of the Complaint and granted in favor of
the Defendant on Count Two, the 47 U.S.C. Section 227(c)(1) and 47
C.F.R. Section 64.1200(c)(2) claim.
A full-text copy of the Court's March 9, 2022 Order is available at
https://tinyurl.com/pnzrhtav from Leagle.com.
MAD TASTY: Bunting Files ADA Suit in E.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Mad Tasty, LLC. The
case is styled as Rasheta Bunting, individually and as the
representative of a class of similarly situated persons v. Mad
Tasty, LLC, Case No. 1:22-cv-01416-WFK-VMS (E.D.N.Y., March 15,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Mad Tasty -- https://madtasty.com/ -- is thoughtfully formulated
around the super plant hemp which aids in calming down inflammation
from head to toe.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
MARA HOFFMAN: Bunting Files ADA Suit in E.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Mara Hoffman, Inc.
The case is styled as Rasheta Bunting, individually and as the
representative of a class of similarly situated persons v. Mara
Hoffman, Inc., Case No. 1:22-cv-01417-FB-VMS (E.D.N.Y., March 15,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Mara Hoffman -- https://marahoffman.com/ -- is an online and
offline lifestyle brand encompassing women's readymade clothing in
New York.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
MCMENAMINS INC: Kirby Suit Removed to W.D. Washington
-----------------------------------------------------
The case styled as Zane J. Kirby, individually and on behalf of all
others similarly situated v. McMenamins Inc., Does 1-10, Case No.
22-00002-00090-21, was removed from the Lewis County Superior
Court, to the U.S. District Court for the Western District of
Washington on March 16, 2022.
The District Court Clerk assigned Case No. 3:22-cv-05168-MLP to the
proceeding.
The nature of suit is stated as Other Contract.
McMenamins -- https://www.mcmenamins.com/ -- is a family-owned
chain of brewpubs, breweries, music venues, historic hotels, and
theater pubs in Oregon and Washington.[BN]
The Plaintiffs appear pro se.
Brian Walter Denlinger, Esq.
ACKERMANN & TILAJEF, P.C.
2602 North Proctor Street, Ste. 205
Tacoma, WA 98406
Phone: (563) 542-3309
Email: brian.w.denlinger@gmail.com
- and -
Craig Ackermann, Esq.
ACKERMANN AND TILAJEF PC
1180 S Beverly Drive, Suite 610
LOS ANGELES, CA 90035
Phone: (310) 277-0614
Email: cja@ackermanntilajef.com
The Defendant is represented by:
Jacqueline Middleton, Esq.
Christopher T. Wall, Esq.
STOEL RIVES (WA)
600 University St., Ste. 3600
Seattle, WA 98101-3197
Phone: (206) 386-7557
Email: jacqueline.middleton@stoel.com
christopher.wall@stoel.com
- and -
Karen L O'Connor, Esq.
STOEL RIVES LLP (OR)
760 SW Ninth Ave., Ste. 3000
Portland, OR 97205
Phone: (503) 294-9291
Email: karen.oconnor@stoel.com
MDL 2895: Court Narrows Claims of EPPs and DPPs in Antitrust Suit
-----------------------------------------------------------------
In the case, IN RE: SENSIPAR (CINACALCET HYDROCHLORIDE TABLETS)
ANTITRUST LITIGATION. THIS DOCUMENT RELATES TO: ALL DIRECT
PURCHASER ACTIONS. ALL INDIRECT PURCHASER ACTIONS, C.A. Nos.
19-md-2895-LPS, 19-396-LPS, 19-1460-LPS, 19-369-LPS, 19-1461-LPS
(D. Del.), Judge Leonard P. Stark of the U.S. District Court for
the District of Delaware issued an Opinion granting in part and
denying in part:
(1) Defendant Amgen Inc.'s motion to dismiss the End Payor
Plaintiffs' ("EPPs") second amended consolidated class
action complaint, filed pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6);
(2) Amgen's motion to dismiss the Direct Purchaser Plaintiffs'
("DPPs") second amended consolidated class action
complaint, filed pursuant to Rule 12(b)(6); and
(3) Defendants Teva Pharmaceuticals USA, Inc., Watson
Laboratories, Inc., and Actavis Pharma, Inc.'s
(collectively, "Teva") motion to dismiss both the DPPs'
second amended consolidated class action complaint and the
EPPs' second amended consolidated class action complaint,
filed pursuant to Rules 12(b)(1) and 12(b)(6).
I. Background
The multi-district litigation ("MDL") relates to a drug with the
active ingredient cinacalcet hydrochloride. Cinacalcet
hydrochloride is used to treat secondary hyperparathyroidism and
hypercalcemia in patients with certain medical conditions. Amgen
has marketed cinacalcet under the brand name "Sensipar" since 2004.
Sensipar has earned Amgen sales of over $1 billion annually since
2015.
Amgen held an exclusive license to now-expired U.S. Patent No.
6,011,068 (the "'068 patent"), which was listed in the Orange Book
in connection with Sensipar and covered the cinacalcet drug
substance. As early as March 2008, generic manufacturers began
filing abbreviated new drug applications ("ANDAs") to market
generic versions of Sensipar. Several of these early ANDA filers
received tentative approvals from the U.S. Food and Drug
Administration ("FDA") before the March 8, 2018 expiration date of
the '068 patent. Because these early filers' challenges to the '068
patent were unsuccessful, they were prohibited from entering the
generic cinacalcet market until after the expiration of that
patent.
On June 28, 2016, Amgen obtained U.S. Patent No. 9,375,405 (the
"'405 patent"), which covers formulations of cinacalcet. The '405
patent expires on Sept. 22, 2026. Amgen added the '405 patent to
the Orange Book listing for Sensipar; almost as soon as it did,
generic manufacturers began to challenge it. By June 2017, more
than 20 generic manufacturers had filed ANDAs containing paragraph
IV certifications, representing to the FDA that the '405 patent was
invalid, unenforceable, or would not be infringed by their generic
products. Under the circumstances, none of the ANDA filers would
have been entitled to 180-day first-filer exclusivity. Between
September 2016 and June 2017, Amgen brought a series of lawsuits in
the Court against these ANDA filers, alleging that the proposed
generic products would infringe the '405 patent.
Beginning in September 2017, Amgen settled most of these suits
asserting the '405 patent, starting with the ANDA filers who had
the weakest cases (i.e., those filers who were least likely to
prove non-infringement, invalidity, or unenforceability of the '405
patent). The agreements pursuant to which these cases were settled
required that the settling defendants (1) admit to infringement of
the '405 patent and (2) promise not to launch their generic
versions of Sensipar before a specified and agreed entry date
(which was a date prior to the expiration of the '405 patent). The
agreed entry dates varied among the settling defendants.
Each of the settlement agreements also included an "acceleration"
clause that would allow the settling defendants to enter the
cinacalcet market before their agreed entry dates if another
generic manufacturer entered the cinacalcet market without
authorization from Amgen; that is, if another generic manufacturer
launched its generic version of Sensipar "at risk" of being liable
for patent infringement. Each of the acceleration provisions also
included a 10-day "grace" period, during which Amgen could avoid
triggering the acceleration clauses by either seeking a preliminary
injunction against the at-risk launcher or by reaching an agreement
with the at-risk launcher to take its generic cinacalcet product
off the market.
In March 2018, as the '068 patent expired, and the FDA granted
final approval to several ANDAs -- but none of the generic
manufacturers holding an approved ANDA launched its cinacalcet
product at that time. Meanwhile, also in March 2018, the
non-settled lawsuits asserting the '405 patent went to trial before
the Honorable Mitchell S. Goldberg, sitting by designation here in
the District of Delaware.
Specifically, Amgen's cases were tried against four ANDA filers:
Watson Laboratories, Inc., Piramal Healthcare UK Ltd., Amneal
Pharmaceuticals LLC, and Zydus Pharmaceuticals (USA) Inc. Following
a four-day bench trial, Judge Goldberg issued an opinion on July
27, 2018, finding that the ANDAs of Watson, Piramal, and Amneal did
not infringe any of the asserted claims of the '405 patent while
Zydus' ANDA did infringe sonic of the asserted claims. The Court
entered final judgment on Aug. 24, 2018. Amgen and Zydus appealed
the judgments to the Court of Appeals for the Federal Circuit.
On December 27, 2018, while these appeals were pending, the FDA
approved Watson's ANDA. The next day, Teva -- which owns Watson's
ANDA -- launched Watson's approved generic cinacalcet product at
risk. Over the next several days, Teva sold and shipped more than
409,000 bottles of the product to wholesalers, which was sufficient
supply to satisfy 1.6 to 3.6 months of the entire U.S. market
demand. These several days of sales generated revenues of
approximately $393 million, netting approximately $213 million in
profits.
Within less than a week, on Jan. 2, 2019, Amgen and Teva reached a
settlement (the "Amgen-Teva Agreement"). Pursuant to the Amgen-Teva
Agreement, Teva agreed to immediately cease sales of its generic
cinacalcet product and not to resume sales until June 30, 2021
(five years before the '405 patent was set to expire) -- all
subject to the operation of an acceleration clause that would
permit Teva to reenter the market sooner than the agreed-upon date
if another generic manufacturer launched at risk.
Under the Amgen-Teva Agreement, Teva was not required to remove
from the market any of the product it had distributed during the
at-risk launch. It was, however, required to pay Amgen an initial
payment of $10 million followed by additional payments that might
bring the total amount paid by Teva to Amgen to as much as $40
million. Teva's additional payments would not be required if
another generic cinacalcet product entered the market.
Amgen and Teva also agreed to jointly request that Judge Goldberg
issue an indicative ruling vacating the non-infringement finding
with respect to the Watson generic cinacalcet product and enter the
parties' proposed consent judgment -- including Teva's admission of
infringement -- if the Federal Circuit, upon the parties'
notification that Judge Goldberg would grant their request for an
indicative ruling, would remand the case for that purpose. Judge
Goldberg later denied Amgen and Teva's request.
On Jan. 4, 2019, two days after execution of the Amgen-Teva
Agreement, counsel for Amgen wrote a letter to counsel for Cipla
Ltd. -- another ANDA filer seeking approval to market a generic
cinacalcet product -- asking Cipla to confirm that it would not
engage in an at-risk launch based on Teva's launch. Amgen also
notified Cipla that, if Cipla launched its product at risk, Amgen
would exercise its rights and pursue the remedies available to it
under their settlement agreement (the "Amgen-Cipla Agreement").
On Jan. 8, 2019, Cipla filed a lawsuit against Amgen (the "Cipla
action," C.A. No. 19-44-LPS) in the Court, seeking a declaratory
judgment that it was entitled to launch its generic cinacalcet
product under the terms the "Amgen-Cipla Agreement." The Cipla
action also alleged antitrust violations and patent misuse. After
Cipla obtained a copy of the Amgen-Teva Agreement through expedited
discovery, Cipla amended its complaint to add Teva as a
co-defendant.
On March 6, 2019, while the Cipla action was pending, Cipla
launched at risk, although "not selling in anything like the volume
it would sell if it did not have this threat from the lawsuit by
Amgen] hanging over it." On March 11, 2019, Amgen moved in the
Cipla action for a preliminary injunction, seeking to restrain
Cipla's sales of its generic cinacalcet product. On May 2, 2019,
the Court denied Amgen's motion, finding Amgen was not likely to
succeed on the merits of its breach of contract claim because the
Amgen-Cipla Agreement did not entitle Amgen to any relief against
Cipla's launch of generic cinacalcet. On appeal the Third Circuit
affirmed. Following the Court's denial of Amgen's motion for a
preliminary injunction in the Cipla action, several other
manufacturers launched their generic cinacalcet products.
In the meantime, between February 2019 and April 2019, the DPPs and
the EPPs (collectively, "Plaintiffs") filed four class action
antitrust lawsuits against Amgen and Teva (collectively,
"Defendants") in the Eastern District of Pennsylvania, the District
of New Jersey, and the District of Delaware. On July 31, 2019, the
Judicial Panel on Multidistrict Litigation ("JPML") centralized the
Cipla action and the four class actions for coordinated pretrial
proceedings in the Court.
On Sept. 13, 2019, the DPPs and the EPPs filed consolidated class
action complaints on behalf of direct purchasers and indirect
purchasers, respectively, On Oct. 15, 2019, Amgen and Teva moved to
dismiss both complaints. On July 22, 2020, Magistrate Judge Hall
issued a Report and Recommendation, in which she recommended that
the Court dismiss all of the Plaintiffs' federal and state law
claims without prejudice and with leave to amend. On Nov. 30, 2020,
the undersigned Judge adopted in part Judge Hall's Report and
Recommendation, finding that the Plaintiffs' claims based on the
theory of an unlawful reverse payment from Amgen to Teva did not
warrant dismissal.
The Court agreed with Judge Hall that the Plaintiffs' claims based
on two other theories did not survive the motions to dismiss: (1)
that the Amgen-Teva Agreement delayed the entry of generic
manufacturers other than Teva; and (2) that the use or acceleration
clauses deterred generic manufacturers from marketing generic
cinacalcet. The Court granted the Plaintiffs leave to amend the
consolidated class action complaints to include "only those claims
and theories that remained in the case." The Court also denied
Amgen's motion directed solely to the EPPs' state law claims,
without prejudice to renew after the filing of any amended
complaint.
On Feb. 16, 2021 and March 5, 2021, the DPPs and the EPPs filed
their respective amended consolidated class action complaints. The
DPPs' amended consolidated class action complaint includes four
counts under Sections 1 and 2 of the Sherman Act, 15 U.S.C.
Sections 1 and 2. The EPPs' amended consolidated class action
complaint includes three claims for injunctive and other equitable
relief under Sections 1 and 2 of the Sherman Act, 15 U.S.C.
Sections 1 and 2, as well as a series of state law antitrust,
unfair trade, consumer protection, and unjust enrichment claims.
On March 30, 2021, Amgen and Teva filed the pending motions to
dismiss. The motions are fully and extensively briefed. The Court
heard oral argument on the motions, using videoconference
technology, on July 13, 2021.
II. Discussion
A. Plaintiffs' Federal Antitrust Claims
1. Reverse Payment Under Section 1 of the Sherman Act (DPPs' Count
IV and EPPs' Second Claim for Relief)
In the amended complaints, the Plaintiffs allege that, under the
Amgen-Teva Agreement, Amgen provided a "large and unjustified
payment" to Teva in exchange for delay of generic entry into the
cinacalcet market. They allege that the reverse payment scheme
under the Amgen-Teva Agreement "substantially, unreasonably, and
unduly restrained trade in the cinacalcet market."
In support of their motions now directed at the amended complaints,
and notwithstanding the Court's earlier analysis, the Defendants
contend that the payments Teva received from Amgen do not qualify
as "large and unjustified," as required to state a reverse payments
claim under Fed. Trade Comm'n v. Actavis, Inc., 570 U.S. 136
(2013). The Defendants argue, among other things, that the
Amgen-Teva Agreement "function[ed] like the early entry compromise
explicitly blessed by Actavis" because it allowed Teva to sell its
generic drug product prior to the expiration of the '405 patent.
Judge Stark concludes that at this stage that the Amgen-Teva
Agreement is consistent with those agreements "blessed by Actavis.
He is not persuaded that the Plaintiffs have effectively pled
themselves out of a reverse payments claim. The impact of the
purported weakness of Amgen's infringement claims against Teva on
Amgen's release of those claims is not a question the Court is in a
position to resolve at this point.
Judge Stark's understanding of the law leads him to conclude,
instead, that damages settlements arising from at-risk sales of the
same drug as the disputed patent are not exempt from antitrust
liability. He opines that the Plaintiffs have plausibly stated a
Section 1 claim under the reverse payment theory.
2. Market Allocation Under Section 1 of the Sherman Act (DPPs'
Count III and EPPs' First Claim for Relief)
In the amended complaints, the Plaintiffs also allege that the
Amgen-Teva Agreement violated Section 1 of the Sherman Act under a
market allocation theory.
To the extent the Plaintiffs are alleging that the Amgen-Teva
Agreement reduced competition by removing Teva from the cinacalcet
market, Judge Stark agrees with the Defendants that the Plaintiffs'
market allocation theory is effectively a pay-for-delay theory and,
"depends upon an allegation of an unlawful 'reverse payment'
governed by the rule of reason test under Actavis. He sees no good
reason to treat this part of the Plaintiffs' market allocation
theory as a standalone claim; all of the allegations (and,
eventually, evidence) supporting this theory can be included as
part of the reverse payment theory the Court has already held will
proceed.
With respect to the Plaintiffs' market allocation theory alleging
that the Amgen-Teva Agreement delayed the entry of generic
cinacalcet manufacturers other than Teva, Judge Stark concludes
thatthe Plaintiffs have failed to state a claim. They failed to
plead facts that might support a plausible theory of a conspiracy
between Amgen and Teva to exclude other generic cinacalcet
manufacturers from the market. Even assuming it is plausible that
Amgen and Teva participated in a "common scheme" after Teva's
at-risk launch, by conspiring to exploit the grace period provided
in the settlement agreements of other generic cinacalcet
manufacturers and reaching a quick deal before the acceleration
clauses in those agreements could be triggered, their conduct still
would not amount to an actionable antitrust violation.
For these reasons, Judge Stark concludes that the Plaintiffs'
Section 1 claim based on the theory that the Amgen-Teva Agreement
delayed the entry of generic cinacalcet manufacturers other than
Teva must be dismissed.
3. Monopolization Claims Under Section 2 of the Sherman Act (DPPs'
Counts I and II and EPPs' Third Claim for Relief)
The Plaintiffs' Section 2 claims in the amended complaints are an
amalgamation of the "deterrence by acceleration clauses" theory,
which was pled in the original complaints and dismissed by the
Court, and a repackaged market allocation theory based on the grace
period, which was not pled as part of the Section 2 claims in the
original complaints.
Judge Stark will dismiss the Plaintiffs' Section 2 claims. Among
other things, he opines that the amended complaints have no
allegations regarding how Section 5.6 would impact other generic
manufacturers' launch decisions. Section 5.6 is present in the
settlement agreements of only a minority of settling generic
manufacturers, among whom only two had approved ANDAs prior to
2019. It is, thus, implausible that the alleged "immediate and
complete genericization" of the cinacalcet market would occur (or
that any generic contemplating an at-risk launch would assume this
as an inevitability). Moreover, the amended complaints have no
allegations regarding how Section 5.6 would impact other generic
manufacturers' launch decisions.
The Plaintiffs also allege that Amgen's purported monopolization
scheme "included Amgen's injection of 'grace' provisions into the
dozen-plus agreements with generics, giving it the opportunity to
quickly pay off any generic that decided to launch" and thereby
prevent the acceleration clauses from being triggered. Judge Stark
has considered this issue in connection with the Plaintiffs'
Section 1 market allocation claim and concludes that the
utilization of grace periods to avoid the triggering of
acceleration clauses did not amount to an antitrust violation.
4. Teva's Challenge to Plaintiffs' Article III and Antitrust
Standing
Teva (but not Amgen) contends that the Plaintiffs lack both Article
III and antitrust standing to maintain their Section 1 claims that
are based on the Amgen-Teva Agreement. It argues that (i) the
overcharge injury the Plaintiffs allege in the amended complaints
"largely, if not exclusively, assumes the continued viability of
their 'delay of other generics' theory; (ii) the Plaintiffs fail to
allege an injury caused by Teva's exit from the generic cinacalcet
market, because the allegation that "Teva sold its entire inventory
of product forecloses any inference that there was anything Teva
could have done to bring that price down any further"; and (iii)
any injury the Plaintiffs suffered as a result of Teva's exit from
the generic cinacalcet market was "completely" remedied or
"minimized" by the entry of other generic cinacalcet products.
Judge Stark holds that the Plaintiffs have alleged an overcharge
injury that was proximately caused by Teva's exit from the generic
cinacalcet market as the result of the Amgen-Teva Agreement. Thus,
the Plaintiffs have established both Article III standing and
antitrust standing for their Section 1 claims against Teva.
B. EPPs' State Law Claims
In addition to their federal antitrust claims, the EPPs attempt to
assert various state law claims under the laws of the District of
Columbia, Puerto Rico, and all states except Indiana and Ohio. The
Defendants have sought to dismiss most of these state law claims on
various grounds.
1. Article III Standing
The Defendants contend that the EPPs only have Article III standing
to pursue state law claims in 15 states because the EPPs' amended
complaint lacks allegations that the named plaintiffs were injured
outside of those 15 states. The EPPs counter that they have Article
III standing to pursue their claims and those of absent class
members, because "all claims arise from the same alleged
misconduct." In the EPPs' view, "a plaintiffs ability to represent
the claims held by absent class members is not" an Article III
jurisdictional issue.
On this dispute, Judge Stark agrees with the Defendants. The EPPs
may only proceed with their state law claims in the 15 states where
at least one named plaintiff was injured by allegedly overpaying
for branded and generic Sensipar. The EPPs cannot premise Article
III standing for claims outside of the 15 states on the injuries
allegedly suffered by putative, unnamed class members in other
states. Accordingly, they have Article III standing only for claims
in the 15 states.
For these reasons, Judge Stark agrees with Defendants that the EPPs
lack Article III standing to press their state law claims except in
the following 15 states: Alaska, Arizona, California, Florida,
Hawaii, Indiana, Maryland, Missouri, New Jersey, New York, Oregon,
Pennsylvania, South Carolina, Tennessee, and Utah. Their state law
claims in all other jurisdictions will be dismissed without
prejudice.
2. Antitrust and Consumer Protection Statutes
The Defendants contend that several of the EPPs' state-law
antitrust and consumer protection claims should be dismissed
because these claims are not allowed under relevant state statutes.
Specifically, they argue that (1) the EPPs' Sixth Claim for Relief
against Amgen should be dismissed under California, New York, and
Tennessee law, because these state statutes do not prohibit
unilateral conduct; (2) the EPPs' claims under Hawaii law should be
dismissed for failure to comply with the statutory notice
requirement; (3) the EPPs' claims under Missouri consumer
protection law should be dismissed because the named plaintiffs are
not "consumers"; and (4) the EPPs' claims under Utah law should be
dismissed because none of the named plaintiffs is a citizen or
resident of Utah.
Judge Stark opines that (i) he will not dismiss the EPPs' Sixth
Claim for Relief against Amgen under California, New York, and
Tennessee statutes because the mere fact that the claims are
directed "against Amgen alone" does not form a basis for dismissal;
(ii) since the EPPs failed to comply with the statutory notice
requirement, their antitrust claims brought under the Hawaii
statute will be dismissed; (iii) since the MMPA authorizes claims
for at least some putative class members, he will not dismiss the
EPPs' claims under this statute, and will deny this portion of the
Defendants' motion; and (iv) it is not implausible to infer that
some of those putative class members may be citizens or residents
of Utah and will not dismiss the EPPs' claims brought under the
Utah statute.
C. Unjust Enrichment Claims
1. Alaska, New Jersey, Pennsylvania, and South Carolina
The Defendants seek dismissal of the EPPs' state law unjust
enrichment claims in the listed "non-Illinois Brick repealer"
states because these claims attempt to circumvent the prohibition
on indirect purchasers' antitrust damages claims.
Judge Staks agrees with the Defendants and will dismiss the EPPs'
unjust enrichment claims as pled under Alaska, New Jersey,
Pennsylvania, and South Carolina law. He opines that
notwithstanding the several cases cited by the EPPs holding the
contrary, the weight of authority supports the proposition that
indirect purchasers may not bring state law claims for unjust
enrichment if that state's antitrust and consumer protection
statutes do not otherwise provide a private cause of action for
damages. Accordingly, he will dismiss the EPPs' unjust enrichment
claims in Alaska, New Jersey, Pennsylvania, and South Carolina.
2. Hawaii, Missouri, and Utah
The Defendants contend that in these states -- all of which provide
statutory remedies for indirect purchasers -- the EPPs' unjust
enrichment claims should be dismissed because their statutory
claims fail.
Having concluded that the EPPs' statutory claims in Missouri and
Utah survive the motion to dismiss, Judge Starks only needs to
address the EPPs' unjust enrichment claim in Hawaii. He does not
find that Hawaii's antitrust statutes provide the exclusive
remedies for antitrust claims brought by indirect purchasers. The
Defendants fail to show such a "clear command." It follows, then,
that the EPPs' right to recover an equitable remedy is not entirely
dependent on the success of their statutory antitrust claims.
Moreover, as the EPPs rightly argue, under Federal Rule of Civil
Procedure 8(d), the EPPs are permitted to plead causes of action in
the alternative, even if they are premised on the same factual
basis. Thus, the dismissal of EPP's statutory antitrust claims does
not necessarily require the dismissal of their unjust enrichment
claims, which may proceed as an alternative cause of action. Thus,
Judge Stark will not dismiss the EPPs' unjust enrichment claims
under Hawaii, Missouri, and Utah law.
3. Florida, New Jersey, New York, and Pennsylvania
The Defendants contend that the EPPs' unjust enrichment claims in
these states should be dismissed because the law of these states
requires a benefit that is conveyed from a plaintiff to a defendant
directly.
Since he will dismiss the EPPs' unjust enrichment claims in New
Jersey and Pennsylvania based on the continued viability of
Illinois Brick in these states, Judge Stark will only address this
additional argument in connection with the EPPs' unjust enrichment
claims under Florida and New York law.
He will not dismiss EPPs' unjust enrichment claim based on New York
law. Under New York law, "a plaintiff need not be in privity with
the defendant to state a claim for unjust enrichment." However,
such a claim is not permitted when the relationship between the
plaintiff and the defendant is "too attenuated." New York courts
have found, for example, that end users cannot assert an unjust
enrichment claim against the manufacturer of an ingredient of the
product they purchased. In the case, the EPPs indirectly purchase
the product at issue: Sensipar or generic cinacalcet; they are not
trying to sue, for example, a company that provides ingredients
that Defendants put into Sensipar or generic cinacalcet. Hence, the
relationship between the EPPs and Defendants is not "too
attenuated."
4. California
The Defendants contend that California does not recognize unjust
enrichment as a standalone claim.
Judge Stark opines that while some courts have agreed with this
position, other courts, including the Supreme Court of California,
appear to acknowledge that parties may pursue unjust enrichment
claims under California law. The California courts have not
definitively prohibited an independent cause of action for unjust
enrichment. Thus, Judge Stark will not dismiss the EPPs' unjust
enrichment claim brought under California law.
III. Conclusion
An appropriate Order follows.
A full-text copy of the Court's March 11, 2022 Opinion is available
at https://tinyurl.com/2p8753k9 from Leagle.com.
Tiffany J. Cramer -- TiffanyCramer@chimicles.com -- CHIMICLES
SCHWARTZ KRINER & DONALDSON-SMITH LLP, Wilmington, Delaware, Thomas
M. Sobol and Bradley J. Vettraino, HAGENS BERMAN SOBOL SHAPIRO LLP,
in Cambridge, Massachusetts, Linda P. Nussbaum, Bart D. Cohen, and
Peter Moran, NUSSBAUM LAW GROUP, P.C., in New York City, Dianne M.
Nast -- dnast@nastlaw.com -- and Michael Tarringer --
mtarringer@nastlaw.com -- NASTLAW LLC, Philadelphia, Pennsylvania,
Mike Roberts -- mikeroberts@robertslawfirm.us -- ROBERTS LAW FIRM,
P.A., in Little Rock, Arkansas, John Radice , Daniel Rubenstein ,
and Kenneth Pickle, RADICE LAW FIRM, P.C., in Princeton, New
Jersey, Attorneys for the Direct Purchaser Plaintiffs.
Ian Connor Bifferato, THE BIFFERATO FIRM, P.A., Wilmington,
Delaware, Karin E. Garvey and Matthew J. Perez, DICELLO LEVITT
GUTZLER, in New York City, Lee Albert -- lalbert@glancylaw.com --
GLANCY PRONGAY & MURRAY LLP, in New York City, Todd A. Seaver,
BERMAN TABACCO, in San Francisco, California, Melinda R. Coolidge,
HAUSFELD LLP, in Washington, District of Columbia, Adam J. Pessin,
FINE, KAPLAN AND BLACK, R.P.C., in Philadelphia, Pennsylvania,
Attorneys for the Indirect Purchaser Plaintiffs.
Jack B. Blumenfeld -- jblumenfeld@morrisnichols.com -- and Brian P.
Egan -- began@morrisnichols.com -- MORRIS, NICHOLS, ARSHT & TUNNELL
LLP, in Wilmington, Delaware, Eric J. Stock, Lauren Myers, and
Joshua J. Obear, GIBSON, DUNN & CRUTCHER LLP, in New York City,
Ashley E. Johnson, GIBSON, DUNN & CRUTCHER LLP, in Dallas, Texas,
Attorneys for Defendant Amgen, Inc.
John W. Shaw -- jshaw@shawkeller.com -- Karen E. Keller --
kkeller@shawkeller.com -- and Nathan R. Hoeschen --
nhoeschen@shawkeller.com -- SHAW KELLER LLP, in Wilmington,
Delaware, Henninger S. Bullock, Richard A. Spehr, Niketa K. Patel,
and Nicolas E. Rodriguez, MAYER BROWN LLP, in New York City,
Attorneys for Defendants Teva Pharmaceuticals USA, Inc., Watson
Laboratories, Inc., and Actavis Pharma Inc.
MEZCO TOYZ: Hedges Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Mezco Toyz, LLC. The
case is styled as Donna Hedges, on behalf of herself and all other
persons similarly situated v. Mezco Toyz, LLC, Case No.
1:22-cv-02192-AT (S.D.N.Y., March 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Mezco Toyz -- https://www.mezcotoyz.com/ -- offers collectible
action figures & toys from movies, comics & pop culture.[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
MICRON TECHNOLOGY: Summary Judgment in Manning Class Suit Affirmed
------------------------------------------------------------------
In the case, CHRIS MANNING, individually; DENNIS PIATT,
individually; ENRIQUE QUILANTAN, individually; LISA LOPEZ,
individually; and on behalf of all others similarly situated,
Plaintiffs-Appellants v. MICRON TECHNOLOGY, INC., a Delaware
corporation, Defendant-Respondent, Docket No. 48195 (Idaho), the
Supreme Court of Idaho, Boise, affirmed the district court's order
granting Micron's motion for summary judgment.
I. Introduction
The appeal arises from the district court's grant of summary
judgment in favor of Micron. The case arose when four Micron
employees (the Employees) filed a class action complaint against
Micron on June 13, 2019, asserting violations of the Idaho Wage
Claim Act. At the time, Micron had in place a compensation plan
called the Incentive Pay Plan (IPP), in which eligible employees
could earn yearly bonuses based on a number of performance metrics.
The Employees alleged that the bonuses they received on Nov. 23,
2018, for Micron's 2018 fiscal year should have been greater.
Micron filed a motion for summary judgment, arguing that the
Employees' complaint was time-barred by Idaho Code section 45-614.
Micron argued that section 45-614's six-month statute of
limitations applied to the Employees' complaint because they sought
"additional wages," as opposed to "unpaid wages." The district
court granted Micron's motion for summary judgment. The Employees
timely appealed, arguing that the two-year statute of limitations
applies.
II. Background
Chris Manning, Dennis Piatt, Enrique Quilantan, and Lisa Lopez (the
Employees) are current employees of Micron and were employees
during the entirety of Micron's 2018 fiscal year. Micron employed a
performance-based annual bonus plan, the IPP, which provided
additional compensation for employees following the end of the
fiscal year based on several performance metrics including the
company's annual performance goals as well as each individual
employee's performance. Micron also compensated its employees
regularly every two weeks throughout the year at a rate that
exceeded the federal minimum wage.
The Employees alleged in their complaint that because Micron
enforced a "mandatory distribution quota" in awarding bonuses for
fiscal year 2018, in contravention of Micron's usual policy, their
annual performance ratings were improperly decreased, leading to
smaller IPP bonuses than were due. Manning received an annual
performance rating of "3" out of a possible "5." As a result, his
IPP payout totaled $33,158.83. Manning alleges that his bonus
should have been $18,000 greater than what he received due to the
decreased performance rating. Piatt received a "2" rating, and his
IPP payout totaled $4,853.71. Piatt alleges that his bonus should
have been $8,500 greater than what he received. Quilantan received
a "3" and his IPP payout totaled $11,123.13. Quilantan alleges that
his bonus should have been $4,400 greater than what he received.
Finally, Lopez received a "2" and her IPP payout totaled $1,826.98.
Lopez alleges that her bonus should have been $3,392.96 greater
than what she received.
On June 13, 2019, Manning filed a class action complaint against
Micron. The complaint alleged that Micron violated the Idaho Wage
Claim Act by (1) breaching the covenant of good faith and fair
dealing, and (2) committing fraud.
In response, Micron filed an Idaho Rule of Civil Procedure 12(b)(6)
motion to dismiss the Employees' complaint and a Rule 12(f) motion
to strike the class allegations. The district court denied Micron's
motion to strike and motion to dismiss. Micron subsequently filed
an answer to the Employees' complaint on Sept. 23, 2019, which also
included several affirmative defenses.
After limited discovery was conducted on the statute of limitations
issue, Micron moved for summary judgment, again alleging that the
Employees' complaint was time-barred by Idaho Code section 45-614.
In its motion, Micron argued that because the Employees sought
"additional wages," the six-month statute of limitations set forth
in Idaho Code section 45-614 barred their claims. Micron asserted
that the Employees had not raised a genuine issue of material fact
during the limited discovery phase, and, as such, their complaint
should be dismissed. The Employees opposed Micron's motion for
summary judgment, arguing that the "default" statute of limitations
for wage claims was two years, and unless Micron could
"demonstrate, as a matter of law, that the six-month statute of
limitations applie[d]," the default two-year limitation period was
applicable.
The parties argued the motion on June 22, 2020. The district court
issued an order granting Micron's motion for summary judgment on
June 24, 2020. The district court concluded that the Employees'
cause of action accrued when they were paid their IPP bonuses on
Nov. 23, 2019. The district court also concluded that the six-month
statute of limitations set forth in Idaho Code section 45-614
applied to the Employees' claims because they sought "additional
wages" in the form of greater IPP bonus payouts. It further
concluded that the IPP bonuses were attributable to the 2018 fiscal
year, which is a pay period.
The Employees timely appealed.
III. Analysis
A. The district court did not err in granting summary judgment in
favor of Micron because the Employees are seeking "additional
wages."
The case primarily turns on the application of Idaho Code section
45-614, which sets the statute of limitations on wage claims under
the Idaho Wage Claim Act. The Employees claim that the two-year
statute of limitations applies because they are claiming wages "not
attributable to any particular pay period." Alternatively, they
contend that they claim "unpaid wages due fifteen days after the
end of Fiscal Year 2018 and the November 2018 payments were merely
late partial payments of amounts owed." Micron, in response, argues
that the six-month statute of limitations applies because "each
Appellant was paid a [fiscal year 2018 IPP bonus but claims a
larger bonus amount and thus seeks additional wages, not unpaid
wages."
The Supreme Court opines that the Employees have not shown that
there is a genuine question of material fact that the 2018 IPP
bonus payout was not attributed to a particular pay period. As
such, the applicable pay period for the 2018 IPP bonus was Micron's
2018 fiscal year. It then opines that because the six-month statute
of limitations applies to Employees' claims, the Employees' claims
are time-barred. The Employees' cause of action accrued when they
received their 2018 IPP bonus on Nov. 23, 2018. There is no dispute
that if the six-month statute of limitations applies, the
Employees' claims are too late to afford them a recovery.
Accordingly, the Employees' claims are time-barred by Idaho Code
section 45-614.
The Supreme Court affirms the district court's grant of summary
judgment in favor of Micron. Because it concludes that the district
court properly held that the Employees' claims were time-barred,
the Supreme Court need not consider the Employees' additional
arguments.
B. The Employees are not entitled to attorney fees and costs on
appeal.
The Employees argue that they are entitled to attorney fees and
costs on appeal pursuant to Idaho Code section 45-615(2). Section
45-615(2) requires that a "judgment be rendered for the
plaintiff."
Because the Employees have not prevailed, they are not entitled to
attorney fees or costs. Micron is entitled to costs on appeal as a
matter of right.
IV. Conclusion
The district court's order granting summary judgment in favor of
Micron is affirmed. Costs are awarded to Micron.
A full-text copy of the Court's March 9, 2022 Opinion is available
at https://tinyurl.com/3s9hfrkz from Leagle.com.
Rossman Law Group, PLLC, Boise, for Appellants Chris Manning,
Dennis Piatt, Enrique Quilantan and Lisa Lopez. Eric S. Rossman
argued.
Stoel Rives LLP, Boise, for Respondent Micron Technology, Inc., W.
Christopher Pooser -- christopher.pooser@stoel.com -- argued.
NEW YORK, NY: Court Grants Bid to Dismiss Torres' Amended Complaint
-------------------------------------------------------------------
In the case, JAIME TORRES and RAKESH KALRA, individually and on
behalf of all others, Plaintiffs v. CITY OF NEW YORK, acting
through the New York City Police Department and New York City
Department of Finance, et al., Defendants, Case No. 20 Civ. 10210
(JPC) (S.D.N.Y.), Judge John P. Cronan of the U.S. District Court
for the Southern District of New York grants the Defendants' motion
to dismiss the Amended Complaint.
I. Background
Plaintiffs Jaime Torres and Rakesh Kalra claim in the putative
class action challenging New York City's parking ticket regime.
They allege that, by issuing multiple tickets at different times
the same day, the City of New York and its personnel violated their
procedural due process rights under the Fourteenth Amendment, as
well as their rights under the Fourth and Eighth Amendments.
On Nov. 8, 2019, Jaime Torres parked at a Department of Education
parking zone in New York City. As a school teacher, Torres had a
parking permit that allowed him to park there. On that day,
however, he forgot to display it. So with no permit displayed, New
York City parking enforcement officials gave Torres two parking
tickets within 12 minutes of each other.
After receiving the tickets, Torres administratively challenged the
second parking ticket, but not the first, by entering a "not
guilty" plea with New York City's Department of Finance. In
presenting that challenge, Torres explained that his parking permit
allowed him to park at the Department of Education parking zone and
that he simply forgot to display it on Nov. 8, 2019. He did not,
however, note that he received two tickets within 12 minutes of
each other. A Department of Finance administrative law judge
("ALJ") rejected Torres's argument and adjudicated him guilty.
After the ALJ issued that order, Torres tried to enter a "Not
Guilty" plea on the first ticket he received on Nov. 8, 2019. But
the Department of Finance website did not allow him to do so. To
avoid paying "additional fines and penalties or having his car
impounded," Torres paid the $95 fine for each ticket and another
$10 penalty for the second ticket, $200 in total.
The Department of Finance allows an appeal of an ALJ's decision
provided it is filed within 30 days. But Torres waited eight months
to appeal the ALJ's decision as to the second ticket to the Appeals
Board. He argued in his appeal that the second ticket "was
duplicative of another ticket issued for the same violation on the
same day." The Appeals Board denied Torres' appeal by explaining
that Torres failed to submit it "within 30 days of the guilty
decision." After the Appeals Board's decision, Torres did not
pursue what is known as an Article 78 proceeding, which entails
judicial review by the New York Supreme Court of a final agency
determination.
In April 2021, a year-and-a-half after receiving the first two
parking tickets, Torres received another parking ticket after once
again forgetting to display a parking permit when parked in a
restricted zone. Torres pleaded not guilty and argued to the
Department of Finance that it should dismiss his ticket because he
had simply forgotten to display his parking permit. The ALJ
rejected Torres's defense because "no permit was displayed and the
photo that Torres submitted of his permit is illegible." The
Amended Complaint does not say whether Torres appealed that
decision or sought an Article 78 proceeding.
The other named Plaintiff, Rakesh Kalra, received two parking
tickets five hours apart for illegally parking at a bus stop. Kalra
challenged the tickets by submitting a request for a hearing to the
Department of Finance. He argued that he believed "parking was
permitted on Sundays at the spot" and that he "received 2 tickets
for the same offense." An ALJ rejected Kalra's defense. It reasoned
that parking was not permitted at the bus stop on Sundays and that
the summonses were not "repeat summonses" because they "were not
issued within three hours of each other."
Mr. Kalra then paid the $230 in total fines for the two tickets and
timely appealed the ALJ's decision to the Appeals Board. On appeal,
Kalra again contended that he "received two tickets for the same
offense at the same location." The Appeals Board affirmed, finding
"no error of fact or law" in the ALJ's decision. The Amended
Complaint does not allege whether Kalra sought Article 78 judicial
review of the Appeals Board's decision.
In December 2020, the Plaintiffs filed the action under 42 U.S.C.
Section 1983, seeking damages and a declaration that the Defendants
violated their constitutional rights. Two months later, the
Defendants moved to dismiss the original complaint. In July 2021,
the Court denied the motion as moot when it granted the Plaintiffs'
application to file an amended complaint.
The Plaintiffs did so on July 26, 2021. In the Amended Complaint,
the Plaintiffs name as the Defendants the City of New York, laying
out the various agencies responsible for parking enforcement, as
well as in their official capacities Jeffrey Shear, the Deputy
Commissioner of the New York City Department of Finance's Treasury
and Payment Services; Mary Gotsopoulis, the Department of Finance's
Chief Administrative Law Judge; and 10 Jane and John Doe.
In the Amended Complaint, the Plaintiffs allege that the Defendants
violated their (1) Fourteenth Amendment procedural due process
rights, (2) Eighth Amendment (incorporated through the Fourteenth
Amendment) right to be free from excessive fines, and (3) Fourth
Amendment (incorporated through the Fourteenth Amendment) right
against unreasonable seizures. They also allege that the Defendants
violated the New York State Constitution's protections against
excessive fines, unreasonable seizures, and unlawful taking of
property, as well as guarantees of due process of law. As relief,
the Plaintiffs seek damages, declaratory relief, and injunctive
relief.
The Defendants have moved to dismiss the Amended Complaint. After
the parties completed briefing the motion, the Court ordered the
parties to file letters addressing whether the Plaintiffs had
standing to bring their unreasonable seizures claims as the
Plaintiffs framed those claims in their Opposition Brief. The Court
held oral argument on the Defendants' motion to dismiss on March 7,
2022.
II. Discussion
A. Federal Claims
Section 1983 creates a federal right of action against any person
who, acting under color of state law, deprives someone of a right
created by the Constitution or federal law. Because each Defendant
qualifies as a "person" under section 1983, the only question is
whether the Defendants violated the Plaintiffs' rights. The
Plaintiffs contend that the Defendants did so in three ways. They
claim that the City's parking ticket system violated their (1)
procedural due process rights, (2) right to be free from
unreasonable seizures, and (3) right to be free from excessive
fines.
1. Procedural Due Process
Judge Cronan opines that (i) it does not matter for procedural due
process purposes whether Defendants improperly interpreted New York
City's law in giving Plaintiffs two parking tickets on the same
day; (ii) the Plaintiffs have not plausibly alleged that the
unidentified ALJs' statements show bias and even if they had
pleaded sufficient facts to show ALJ bias, the Article 78
proceedings can cure it; (iii) the Defendants thus did not violate
the Plaintiffs' procedural due process rights by not following a
hypothetical state trial court decision; and (iv) he cannot find
that due process required the Defendants to inform the Plaintiffs
of their right to an Article 78 proceeding, nor does it matter the
City used to inform people about their right to an Article 78
proceeding.
2. Fourth Amendment Unreasonable Seizures
Besides their procedural due process claims, the Plaintiffs contend
that Defendants violated their Fourth Amendment right, made
applicable to the States by the Fourteenth Amendment, to be free
from unreasonable seizures.
Judge Cronan opines that issuing a parking ticket does not even
count as a Fourth Amendment seizure. Otherwise, "every traffic
ticket and jury summons" would turn "into a potential Section 1983
claim." And seizing property for failing to pay a parking ticket
does not count as an unconstitutional seizure: "Courts have held
that the towing and impoundment of vehicles when a plaintiff failed
to pay his parking tickets is reasonable under the Fourth
Amendment." It therefore follows that it would not violate the
Plaintiffs' Fourth Amendment rights for them to decide to pay their
parking tickets after the ALJs found them guilty of violating the
parking laws.
3. Eighth Amendment Excessive Fines
The Plaintiffs next contend that the Defendants violated their
Eighth Amendment right against excessive fines. They claim that
even though the $95 fines imposed for a single ticket may not be
excessive, the cumulative nature of the tickets violated their
rights.
Judge Cronan finds that the Plaintiffs have failed to plausibly
allege that Defendants imposed grossly disproportional fines
compared to their parking offenses. The Plaintiffs violated New
York City's parking laws and were given tickets within what the law
permitted. Although the Plaintiffs' "culpability is low because the
underlying parking violation is minor," a $95 and $115 fine are not
grossly disproportional to an illegal parking violation. Lastly,
the act of someone remaining illegally parked harms the City.
In sum, the Plaintiffs have pointed to no facts suggesting that
challenges to the City's power to allegedly give these large fines
are fit for the Court to decide or would cause a substantial
hardship if the Court reserved judgment.
B. State Law Claims
With the Plaintiffs' federal claims dismissed, Judge Cronan
declines to exercise supplemental jurisdiction over the Plaintiffs'
remaining state claims. "A district court usually should decline
the exercise of supplemental jurisdiction when all federal claims
have been dismissed at the pleading stage." In the case, the
traditional "values of judicial economy, convenience, fairness, and
comity" do not favor exercising jurisdiction. The case is at an
early stage, and the Court has stayed discovery pending resolution
of Defendants' motion to dismiss. Judge Cronan therefore dismisses
the Plaintiffs' state law claim without prejudice to refiling in
state court.
III. Conclusion
For these reasons, Judge Cronan concludes that the Plaintiffs have
failed to plausibly allege that the Defendants violated their
federal constitutional rights, and he declines to exercise
supplemental jurisdiction over the remaining state law claims.
Judge Cronan therefore grants the Defendants' motion to dismiss and
dismisses the Plaintiffs' federal claims with prejudice and their
state law claims without prejudice. He dismisses the federal law
claims with prejudice because the Plaintiffs have neither suggested
how they may cure the defects nor asked for leave to amend.
The Clerk of the Court is respectfully directed to close the case.
A full-text copy of the Court's March 11, 2022 Opinion & Order is
available at https://tinyurl.com/mtc5j2p4 from Leagle.com.
NEWELL BRANDS: Faces Securities Suit in N.J. Court
--------------------------------------------------
Newell Brands Inc. disclosed in its Form 10-K Report for the fiscal
year ended December 31 2021, filed with the Securities and Exchange
Commission on February 14, 2022, that a class action lawsuit was
filed against the company alleging violations of the securities
laws.
The Company and certain of its current and former officers and
directors have been named as defendants in a putative securities
class action lawsuit filed in the Superior Court of New Jersey,
Hudson County, on behalf of all persons who acquired Company common
stock pursuant or traceable to the S-4 registration statement and
prospectus issued in connection with the April 2016 acquisition of
Jarden Receivables LLC.
The action was filed on September 6, 2018 and is captioned
"Oklahoma Firefighters Pension and Retirement System v. Newell
Brands Inc., et al.," Civil Action No. HUD-L-003492-18.
The operative complaint alleges certain violations of the
securities laws, including, among other things, that the defendants
made certain materially false and misleading statements and
omissions in the Registration Statement regarding the Company's
financial results, trends, and metrics. The plaintiff seeks
compensatory damages and attorneys' fees and costs, among other
relief.
Newell Brands is a global consumer goods company based in Georgia.
NFINITY ATHLETICS: Fusion Elite Suit Transferred to N.D. Georgia
----------------------------------------------------------------
The case styled as Fusion Elite All Stars, Spirit Factor LLC doing
business as: Fuel Athletics; Stars and Stripes Gymnastics Academy
Inc. doing business as: Stars and Stripes Kids Activity Center;
Kathryn Anne Radek; Lauren Hayes; Janine Cherasaro, individually
and on behalf of all others similarly situated; Petitioners v.
Nfinity Athletics LLC, Respondent, Case No. 2:20-cv-02600, was
transferred from the U.S. District Court for the Western District
of Tennessee, to the U.S. District Court for the Northern District
of Georgia on March 16, 2022.
The District Court Clerk assigned Case No. 1:22-cv-01071-TWT-JSA to
the proceeding.
The nature of suit is stated as Other Statutory Actions for Motion
to Compel Deposition Testimony.
Nfinity -- https://www.nfinity.com/ -- has grown into a leading
athletic footwear and apparel brand that delivers the best quality
and value in team athletic gear and footwear.[BN]
The Petitioners are represented by:
Eric Cramer, Esq.
Mark Suter, Esq.
BERGER & MONTAGUE, P.C. -P.A.
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Phone: (215) 875-3000
Fax: (215) 875-4604
Email: ecramer@bm.net
- and -
Gregory Asciolla, Esq.
LABATON SUCHAROW LLP-NY
140 Broadway, 34th Floor
New York, NY 10005
Phone: (212) 907-0700
Fax: (212) 818-0477
Email: gasciolla@labaton.com
- and -
Peter Andrew Lampros, Esq.
HALL & LAMPROS, LLP
400 Galleria Pkwy, Suite 1150
Atlanta, GA 30339
Phone: (404) 876-8100
Fax: (404) 876-3477
Email: alampros@hallandlampros.com
The Respondent is represented by:
John Anthony Christy, Esq.
Jonathan Akins, Esq.
SCHREEDER WHEELER & FLINT, LLP
1100 Peachtree St., N.E., Suite 800
Atlanta, GA 30309-4516
Phone: (404) 681-3450
Email: jchristy@swfllp.com
jakins@swfllp.com
NISSAN NORTH: Faces Boone Suit Over Vehicles' Transmission Defect
-----------------------------------------------------------------
JAH BOONE; LUIS GUTIERREZ; and KURT SCHAY, individually and on
behalf of all others similarly situated, Plaintiffs v. NISSAN NORTH
AMERICA, INC., Defendant, Case 3:22-cv-00191 (M.D. Tenn., March 18,
2022) is an action alleging that the Defendant manufactures and
sells defective 2020-2021 Nissan Titan and 2020-2021 Nissan
Frontier vehicles.
According to the complaint, beginning in 2019, if not earlier, the
Defendant knew that the Class Vehicles contain one or more defects
in the way the vehicles' transmissions are manufactured and made
that cause the Class Vehicles to experience significant hesitation,
lag, and delay when attempting to accelerate from a stop; cause the
Class Vehicles to downshift abruptly and hard, resulting in the
vehicles jerking, and lurching forward when coming to a stop; and
cause the Class Vehicles to emit clunking noises when shifting.
The common transmission defect is a safety hazard to drivers,
passengers, and pedestrians because it results in the vehicles
being unable to maintain the proper speed needed to safely
integrate into the flow of traffic from a stopped position,
increasing the likelihood that the Class Vehicles will be involved
in a collision or accident, says the suit.
Nissan North America Inc. operates in the automotive industry. The
Company designs, develops, and manufactures Nissan vehicles and
distributes them through dealers in the United States. [BN]
The Plaintiff is represented by:
Susan S. Lafferty, Esq.
LAFFERTY LAW FIRM, Inc.
1321 Murfreesboro Pike, Suite 521
P.O. Box 292977
Nashville, TN 37229
Telephone: (615) 878-1926
Facsimile: (615) 472-7852
NORWOOD COMMERCE: Sued Over Failure to Comply with Regulations
--------------------------------------------------------------
Kadeema LLC; Gator Art Glass LLC; Heritage Heat & Air Conditioning,
Inc.; Ann Herrick d/b/a Artists-At-Large; Valerie Anselme d/b/a
Anselme Photography; Marypaz; Susan Palomba d/b/a Salvage Angel;
Thomas Seggers d/b/a Artists-At-Large; Sign Language Signs, Inc.;
Elizabeth Springett d/b/a Wovenseas Weaving Studio; Samuel Vartan
Collections, LLC; Michelle Welch d/b/a Bee-Sides Boutique; Michelle
Welch d/b/a Turn-Around Training, individually and on behalf of all
others similarly situated v. NORWOOD COMMERCE CENTER LP; ENDICOTT
CORPORATION; and NCC, LLC, Case No. 22-00470-BLSI (Commonwealth of
Mass., Norfolk Cty., March 3, 2022), concerns the Defendants'
sustained, knowing and egregious failure to comply with numerous
state and municipal codes and regulations at the premises they own
and leased to the Plaintiffs--and the damages suffered by the
Plaintiffs as a direct result of Defendants' non-compliance.
On October 27, 2020, the Norwood Fire Department (the "NFD")
responded to a small fire on the second floor of NCC's Building 26
in the Building 23-26 Structure (the "October 2020 Fire"). Although
the NFD quickly extinguished the fire and no one was injured, NFD
discovered numerous, blatant fire code and safety violations at the
property capable of causing serious harm. While the small fire did
not cause those violations, it dramatically exposed them to the
Town of Norwood.
According to press release issued by the Town of Norwood (the
"Norwood Press Release"), "[bjecause of the amount of clutter in
the building and the way the building had been altered without
proper permitting, firefighters initially had a difficult time
reaching the fire with their hose lines. Firefighters had to use
additional hose lines, totaling about 350 feet in length, in order
to reach the fire and extinguish it." Based on these observations,
NFD contacted the Norwood Building Commissioner to inspect the NCC
in general and the Building 23-26 Structure in particular. During
its inspection of the Building 23-26 Structure, the Norwood
Building Commissioner uncovered a multitude of violations of the
Massachusetts State Building Code (780 CMR), the Massachusetts
State Fire Code (527 CMR), the Massachusetts State Electrical Code
(527 CMR 12.00, el seq.), the Massachusetts State Plumbing Code
(248 CMR), along with additional health and zoning violations.
Inspections of the other buildings at the NCC following and related
to the October 2020 Fire and/or the November 2020 Incident
uncovered additional serious code and regulatory violations,
leading the Town of Norwood to close the entirety of the NCC (and
all buildings located therein) in or about late November 2020.
Norwood Commerce's failure to adhere to state and/or municipal
regulations directly caused the Town of Norwood to close the NCC,
including but not limited to the Building 23-26 Structure, Building
32, and Building 46, which has prevented Plaintiffs from continuing
to conduct business at premises leased for that purpose and has,
effectively, deprived them of a living.
This non-compliance which created such a profound risk to the
Plaintiffs, their patrons, and first responders that local
authorities closed the leased premises to force the Defendants to
spend the time and money to rectify the unsafe conditions they had
allowed to fester for years, despite representing to the Plaintiffs
that the premises would be suitable and available for the
Plaintiffs' respective commercial uses as permitted under their
leases. The Defendants' misconduct violates Massachusetts law and
have occurred on a class-wide basis. Therefore, the instant action
seeks relief for the named the Plaintiffs as well as the putative
class of similarly situated individuals who have suffered the same
injuries as a result of the Defendants' misconduct, says the
complaint.
The Plaintiffs entered into a commercial lease with the Defendants
in connection with its business operations.
The NCC, which is located in an area of the Town of Norwood zoned
for manufacturing, consists of or about 12 buildings spread over
approximately 26 acres.[BN]
The Plaintiff is represented by:
Keith L Sachs, Esq.
Shaun M. Khan, Esq.
D. Scott Dullea, Esq.
DDSK LAW LLC
900 Cummings Center, Suite 210U
Beverly, MA 01915
Phone: 978-338-6620
Email: ksachs@ddsklaw.com
skhan@ddsklaw.com
sdullea@ddsklaw.com
NXEDGE MH: Perez Wage Suit Remanded to Santa Clara Superior Court
-----------------------------------------------------------------
Judge William H. Orrick of the U.S. District Court for the Northern
District of California remanded the case, FELIS A PEREZ, Plaintiff
v. NXEDGE MH, LLC, Defendant, Case No. 3:21-cv-10036-WHO (N.D.
Cal.), to the Superior Court of the State of California for the
County of Santa Clara.
I. Background
Plaintiff Perez moves to remand the putative wage-and-hour class
action to state court. Perez, a citizen of California, worked for
NxEdge, a limited liability corporation that is a citizen of
Delaware. According to Perez, NxEdge violated the California Labor
Code by, among other things, failing to compensate him and other
employees for all hours worked, provide them meal and rest breaks,
and provide them accurate wage statements. He also brings
derivative claims for unfair competition.
In September 2021, Perez filed a suit in state court on behalf of
himself and others similarly situated. In November 2021, he filed
an amended complaint in state court. NxEdge removed the case to the
Court in December 2021. Perez now moves to remand.
II. Discussion
Perez argues that NxEdge has failed to show that the amount in
controversy exceeds $75,000. His leading argument is that NxEdge's
figure impermissibly relies on so-called "subsequent" violations
under California's Private Attorneys General Act ("PAGA").
NxEdge calculates its amount in controversy by treating every
violation alleged in the Complaint except the first as a subsequent
violation. A "subsequent" violation under PAGA comes with a
heightened penalty, but it only occurs after the employer is
notified that it is violating the Labor Code.
Judge Orrick finds that the complaint does not allege an amount in
controversy and Perez contests NxEdge's asserted amount, so NxEdge
must establish the amount in controversy by a preponderance of the
evidence. But NxEdge has presented no evidence of when it was
notified that it was violating the Labor Code, let alone that the
notice was sufficient to impose heightened civil penalties.
Judge Orrick concludes that NxEdge has not shown that any alleged
violation would lead to subsequent penalties. Nor does it offer a
date -- and supporting evidence -- after which violations would
start to qualify as subsequent. As a result, for jurisdictional
amount-in-controversy purposes, none of the violations have been
shown to be worth a heightened penalty. Once the heightened
penalties are removed from NxEdge's calculation (and replaced with
non-heightened penalties), it is $56,326.66. Even assuming NxEdge
is correct about its remaining calculations -- many of which Perez
disputes -- that amount is below the more-than-$75,000 threshold.
III. Conclusion
For these reasons, Judge Orrick granted the motion to remand. The
case is remanded to the California Superior Court for the County of
Santa Clara.
A full-text copy of the Court's March 9, 2022 Order is available at
https://tinyurl.com/4h975eha from Leagle.com.
PENN CREDIT: Wins Bid for Summary Judgment in Adler FDCPA Suit
--------------------------------------------------------------
In the case, MENACHEM ADLER, individually and on behalf of all
others similarly situated, Plaintiff v. PENN CREDIT CORPORATION,
Defendant, Case No. 19-CV-7084 (KMK) (S.D.N.Y.), Judge Kenneth M.
Karas of the U.S. District Court for the Southern District of New
York granted the Defendant's Motion for Summary Judgment and denied
the Plaintiff's Motion for Summary Judgment.
I. Background
Plaintiff Adler brings the putative Class Action against Penn
Credit, alleging that the Defendant engaged in unlawful credit and
collection practices in violation of the Fair Debt Collection
Practices Act ("FDCPA"), 15 U.S.C. Sections 1692, et seq. The
Plaintiff is a "citizen of the State of New York residing in Spring
Valley," and a "consumer," as defined by 15 U.S.C. Section
1692a(3). The Defendant is a "debt collector," as defined by 15
U.S.C. Section 1692a(6).
The Defendant has claimed that the Plaintiff owes a debt arising
out of a "delinquent utility bill." On Nov. 20, 2018, Suez New York
placed Plaintiff's account of $122.14 in collections with the
Defendant." "On May 19, 2019, the Defendant transmitted an
electronic request to its letter vendor, RevSpring, to prepare and
send a collection letter to the Plaintiff." The Payment Letter
notes that the Plaintiff owed $122.14 for a "delinquent utility
bill" with a "service date" of July 22, 2016.
It also directs the recipient to the "reverse side for important
information concerning his or her rights." The reverse side informs
recipients -- in the case, the Plaintiff -- about a debt
collector's right to sue the recipient to collect the debt, but
notes that certain additional state or federal laws protect certain
types of income from attachment. Finally, there are additional
notices made pursuant to state law.
The Plaintiff called Defendant three times to inquire about the
alleged debt" on Nov. 18, 2018, May 13, 2019, and May 23, 2019. The
Plaintiff has submitted no evidence that he ever attempted to send
anything in the mail to Penn Credit. On May 28, 2019, the Plaintiff
spoke with Defendant "on the telephone and arranged for a payment
of $122.14 to be made on May 29, 2019." Thereafter, the Defendant
mailed a letter dated May 29, 2019 to the Plaintiff, confirming the
Plaintiff's payment.
The Plaintiff filed his Complaint on July 30, 2019. The Defendant
filed a motion to dismiss on Jan. 10, 2020. On Jan. 31, 2020, the
Plaintiff filed a Response. On Aug. 3, 2020, the Court issued an
Opinion & Order denying the Defendant's motion. It held "that the
Plaintiff has stated a plausible claim under the FDCPA and that it
cannot dismiss the Complaint at this early stage."
On April 9, 2021, the Defendant filed its Motion for Summary
Judgment and accompanying papers. On the same day, the Plaintiff
filed his Motion for Summary Judgment and accompanying papers.
On May 18, 2021, the Defendant filed its Memorandum of Law in
Opposition to the Plaintiff's Motion for Summary Judgment and a
Counter to the Plaintiff's Rule 56.1 Statement. The next day, the
Plaintiff filed parallel papers.
On June 1, 2021, the Parties filed reply memoranda of law in
support of their respective motions.
II. Analysis - Standing
The Defendant puts forth two distinct arguments, either of which
would entitle it to summary judgment: (1) that the Plaintiff lacks
standing to assert a claim under the FDCPA, and (2) that the
Payment Letter is not deceptive as a matter of law, in part because
any deceptiveness that could be found is immaterial, meaning
Defendant did not violate the FDCPA. The Plaintiff disputes both of
these arguments, arguing that he has standing to bring the suit and
that the letter is, in fact, deceptive.
The Plaintiff, conversely, argues that he is entitled to summary
judgment because the law of the case doctrine mandates that the
Court, having previously determined that the Plaintiff plausibly
alleged a violation of the FDCPA vis-à-vis the Payment Letter's
deceptiveness, must maintain its position and once again side for
the Plaintiff. The Defendant points to the Court's prior opinion,
which noted that questions of fact could have laid to rest
questions of whether the Payment Letter was materially misleading.
The Supreme Court recently expounded on the concept of
constitutional standing in TransUnion LLC v. Ramirez, 141 S.Ct.
2190 (2021), putting the bottom line up front: "No concrete harm,
no standing." Justice Kavanaugh, writing for the majority,
explained: "Central to assessing concreteness is whether the
asserted harm has a 'close relationship' to a harm traditionally
recognized as providing a basis for a lawsuit in American courts --
such as physical harm, monetary harm, or various intangible harms
including reputational harm."
In TransUnion, a class of 8,185 plaintiffs alleged that the credit
reporting agency TransUnion violated the Fair Credit Reporting Act
("FCRA") by failing to use reasonable procedures to ensure that
their respective credit files, which TransUnion maintained, were
accurate. Specifically, these 8,000 plus plaintiffs asserted that
TransUnion's shortcomings led the company to place flags on the
plaintiffs' credit files that inaccurately flagged them as a
"potential match" to persons identified as "specially designated
nationals" who threaten America's national security by the Treasury
Department's Office of Foreign Assets Control ("OFAC").
The Supreme Court split up the plaintiffs: One the one hand, there
were those "whose credit reports were disseminated" to
third-parties with the inaccurate flags and who suffered a harm
"associated with the tort of defamation," id. at 2208-09, thereby
conferring standing; on the other hand, there were the remaining
plaintiffs whose credit reports were never disseminated, and who
lacked standing because "publication is 'essential to liability' in
a suit for defamation." The Supreme Court ruled that absent a
showing that the latter portion of individuals were harmed in any
other way, they could not move forward.
Late last year, the Second Circuit issued its first opinion
analyzing the reach and implications of TransUnion. In Maddox v.
Bank of N.Y. Mellon Tr. Co., N.A., 19 F.4th 58 (2d Cir. 2021)
("Maddox II"), the Second Circuit withdrew a pre-TransUnion opinion
in which the court had held that the bare violation of New York's
satisfaction-of-mortgage statutes via "a lender's delay in
recording the satisfaction of a mortgage" created an injury in fact
in the form of the creation of "a cloud on title of real estate,"
which, alone, gave rise to constitutional standing, citing Maddox
v. Bank of N.Y. Mellon Tr. Co., N.A., 997 F.3d 436 (2d Cir. 2021)
("Maddox I").
Pursuant to TransUnion, the Second Circuit in Maddox II held that
because the mortgagor-plaintiffs failed to allege that any
reputational harm (including or in addition to any adverse credit
reporting) or monetary harm actually occurred during the
lender-defendant's delay in recording the satisfaction of the
mortgage, the plaintiffs lacked standing. District courts in the
Second Circuit applying TransUnion and Maddox, tellingly, demand
concrete examples of harm.
The mental and emotional harms required under TransUnion (and
Maddox) are even clearer when shown in contrast to other FDCPA
actions in which, post-TransUnion, courts have found that
plaintiffs did have standing. For example, post-TransUnion, a
district court found that a plaintiff had standing to bring an
FDCPA claim where the defendant-debt collector's actions threated
home foreclosure, as the plaintiff alleged she was forced to
"endure damages [stemming from] fear of losing the property, worry
about where her loved ones will live, anxiety about being kicked
out and becoming homeless, very heavy stress, severe headaches and
stomach aches, sleepless nights, eating disorders, excessive worry,
and other mental and emotional distress." In other words, the
specific, and overt mental anguish suffered by the plaintiff in
Benjamin was a far cry from speculative or unspecified future
harms.
a. Mental/Emotional Harm
In the case, the Plaintiff puts forward no corroborated assertions
relating to mental or emotional anguish in his Complaint; the
Plaintiff only states in his declaration that he was "confused,"
"frustrated," and "worried that Penn Credit would lodge a negative
credit report against him." The Plaintiff goes beyond these
threadbare assertions -- but just barely -- in his deposition; the
Plaintiff stated in his deposition that he sustained an unspecified
number of headaches at unspecified frequencies or intervals, but
only took an unspecified amount of "Tylenol and went to bed" to
mollify any headaches his confusion apparently caused. The
Plaintiff also confirmed in his deposition that he never sought
medical treatment as a result of such headaches.
Judge Karas opines that these assertions, while slightly more
colorful than those in his declaration, remain too vague, lacking
the requisite "specific facts" to establish the injury-in-fact at
this stage of the litigation. The Plaintiff's "perfunctory and
unsupported claim of emotional distress, especially one wholly
incommensurate with the stimulant, is insufficient to plausibly
demonstrate constitutional standing."
Moreover, even if the Plaintiff's assertions were sufficiently
detailed, "a non-moving party's self-serving statement, without
direct or circumstantial evidence to support the charge, is
insufficient to defeat a motion for summary judgment." Accordingly,
the Plaintiff cannot establish purely emotional or mental harms to
establish standing on the basis of his deposition alone.
b. Monetary and Reputational Harm
The Plaintiff, while not so stating in his affidavit or Complaint,
alludes to monetary and reputational harms, either of which could
give rise to standing. However, given the Plaintiff's
inconsistencies and lack of detail or evidentiary support with
respect to each potential toehold, Judge Karas cannot consider
either as sufficient, in light of the stage of litigation, to
confer standing.
Judge Karas says the Plaintiff's inconsistencies and vagueness with
respect to any reputational harms once again foretell his downfall
for several reasons. First, any harms that may have befallen the
Plaintiff with regard to his reputation are of his own making.
Second, the Plaintiff failed to detail what, if anything, he told
this unnamed would-be investor that would have, in fact, caused his
reputational harm. Third, the Plaintiff cannot state a harm akin to
the tort of public disclosure of private facts given that a small
number of people, at most, would have learned of the Plaintiff's
private debt information. Fourth, notwithstanding these
infirmities, the Plaintiff relies solely on his deposition and
cannot point to a single piece of evidence to corroborate his
inconsistent story, which is insufficient to defeat summary
judgment.
As the Plaintiff has not demonstrated any concrete injury
sufficient to support standing under the Second Circuit's precedent
in Maddox, the Court lacks subject matter jurisdiction over the
Action. Accordingly, Judge Karas need not address the substantive
merits of the Plaintiff's claims, as he must grant the Defendant's
Motion and deny the Plaintiff's Motion dismissing the Plaintiff's
claim.
III. Conclusion
For the foregoing reasons, Judge Karas granted the Defendant's
Motion for Summary Judgment and denied the Plaintiff's Motion for
Summary Judgment. The Clerk of Court is respectfully directed to
terminate the pending Motions, (Dkt. Nos. 52, 58), enter judgment
for the Defendant, and close the case.
A full-text copy of the Court's March 11, 2022 Opinion & Order is
available at https://tinyurl.com/mpj2z64r from Leagle.com.
Joenni Abreu, Esq., Jonathan M. Cader, Esq. -- jcader@sbglawny.com
-- Craig B. Sanders, Esq. -- csanders@barshaysanders.com -- Barshay
Sanders, PLLC, in Garden City, New York, Counsel for the
Plaintiff.
Richard J. Perr, Esq. -- rperr@kdvlaw.com -- Monica M. Littman,
Esq. -- mlittman@kdvlaw.com -- Kaufman Dolowich & Voluck, LLP, in
Philadelphia, Pennsylvania, Counsel for the Defendant.
PHILADELPHIA, PA: Court Grants Bid to Certify Class in Remick Suit
------------------------------------------------------------------
In the case, THOMAS REMICK, et al., on behalf of themselves and all
others similarly situated, Plaintiffs-Petitioners v. CITY OF
PHILADELPHIA; and BLANCHE CARNEY, in her official capacity as
Commissioner of Prisons, Defendants-Respondents, Civil Action No.
20-1959 (E.D. Pa.), Judge Berle M. Schiller of the U.S. District
Court for the Eastern District of Pennsylvania issued a
Memorandum:
a. granting the Plaintiffs' Third Amended Motion for Class
Certification; and
b. denying the Motions to Intervene and Motions for Contempt
filed by six individual Philadelphia Department of Prisons
("PDP") inmates.
I. Background
The Court reaches the issue of class certification nearly two years
after the commencement of the litigation. On April 20, 2020, the
Plaintiffs -- a group of inmates who are or were at one point
incarcerated at a PDP facility -- filed suit against Defendants
City of Philadelphia and PDP Commissioner Blanche Carney, seeking
to compel them "to protect individuals incarcerated in the PDP from
the risks of serious harm they face from the twin dangers of
COVID-19 and prolonged isolation in their cells." The Plaintiffs
concurrently filed their first Motion for Class Certification.
Soon after, on April 23, 2020, the Plaintiffs filed a Motion for
Temporary Restraining Order and Preliminary Injunction, seeking a
court order requiring the Defendants "to ensure that conditions of
confinement at PDP comply with the health and safety standards
necessary to protect the putative plaintiff class, and to provide
humane conditions of confinement." The parties subsequently entered
into a partial settlement agreement resolving this motion, which
was approved by the Court in the form of a stipulated Consent Order
on June 3, 2020.
The June 3, 2020 Consent Order required the Defendants to take
various measures both to mitigate the risks of harm from COVID-19
at PDP facilities, including by supplying hygienic products,
cleaning supplies, and personal protective equipment to inmates, as
well as to continue to provide care for inmates'
"non-COVID-19-related medical and mental health needs." Of
particular note, pursuant to the Consent Order, the City was
directed to "work to increase daily out-of-cell time for showering,
cleaning, recreation, and phone calls, with a near-term goal of
allotting 45 minutes per inmate by June 10, 2020."
On Jan. 13, 2021, the Court issued an Interim Order finding that
Defendants had failed to comply with the June 3, 2020 Consent Order
and were not providing inmates their required 45 minutes of daily
out-of-cell time. Specifically, the Court found that "the current
shelter-in-place policy, implemented by PDP to control the
transmission of COVID-19, keeps incarcerated people in their cells
for nearly 24 hours a day, and such prolonged confinement is
harmful to the mental and physical health of incarcerated
individuals." The Interim Order again ordered Defendants to provide
inmates at least 45 minutes of daily out-of-cell time.
On Jan. 28, 2021, the Court issued an Order requiring the
Defendants to provide at least two hours of daily out-of-cell time
by Feb. 10, 2021 and three hours by Feb. 24, 2021. The
Court-ordered increase in out-of-cell time followed the "universal
testing of the incarcerated population" between Dec. 7, 2020 and
Jan. 13, 2021, culminating in a "positivity rate of just over 5%."
This approximated "the PDP-stated benchmark for iteratively
increasing cohort sizes," which, at the time was "a system-wide
Covid-19 positivity rate at or below 5%." As stated in the Jan. 28,
2021 Order, "the size of cohorts determines the amount of time
individuals will have out of cell." Further, at the time of the
Jan. 28, 2021 Order, the PDP had "started a vaccination process for
COVID-19" and stated its intention "to provide vaccinations to the
entire staff and incarcerated population as soon as possible."
On May 4, 2021, the Court issued an Interim Order finding that
"there has been a pattern of noncompliance with the Jan. 28, 2021
Order." The Interim Order cited to "reports from class members at
each of the PDP facilities that they have regularly been denied the
required amount of out-of-cell time" that "have been filed with the
Court on a regular basis." Both the Deputy Wardens at each PDP
facility, who had been "designated as the City's monitors for
compliance," and the City of Philadelphia "reported that staffing
shortages and other emergent events have impeded the ability of the
facilities to meet or exceed the three hours of recreation time."
On May 14, 2021, the Plaintiffs filed a Motion for Contempt and
Sanctions in connection with Defendants' failure to comply with the
Court's Jan. 28, 2021 Order. On June 23, 2021, the Court approved a
Settlement Agreement that resolved this motion, pursuant to which
Defendants paid $125,000 to two Philadelphia-based bail funds. The
Settlement Agreement also required that the "Defendants make all
reasonable efforts to increase out-of-cell times beyond those
required by current Court Orders with the ultimate goal of a new
schedule that would provide out-of-cell time: (a) for all
vaccinated units, in the range of 4.5-5.0 hours/day; (b) for other
general housing units, 3.5 hours/day; (c) for quarantined housing
units, 3 hours/day; and (d) for segregation units, 1 hour/day." The
Settlement Agreement further required that Defendants "provide to
the Court and the Plaintiffs reports on infection and vaccination
rates and the reports of the Deputy Wardens on out-of-cell time
required under current Court Orders."
On Sept. 14, 2021, the Court entered an Order setting Jan. 22, 2022
as the date on which the PDP must "return to full pre-COVID-19
operations with normal out-of-cell times of approximately eight
hours per day and full attorney, family, and friends' visitation;
and full programming." The Court ordered the Defendants to take
interim steps to gradually increase out-of-cell time, visitation,
and programming, including by providing "a minimum of 5 hours daily
out-of-cell time for incarcerated persons in vaccinated housing
units, 4 hours for persons in other non-quarantine housing areas, 3
hours for persons in quarantined housing areas, and 1 hour for
persons housed in segregation units" by Nov. 6, 2021, increasing to
six hours, five hours, four hours, and two hours, respectively, by
Dec. 22, 2021. This increase in out-of-cell time was to be
facilitated by increases in correctional officer staffing.
On Oct. 14, 2021, the Plaintiffs filed their First Amended
Complaint. On Dec. 1, 2021, they filed a Motion for Contempt
alleging that the Defendants failed to comply with the requirements
of the Court's Jan. 28, 2021 and Sept. 14, 2021 Orders. The
Plaintiffs filed motions for leave to file their Second Amended
Complaint on Jan. 7, 2022 and their Third Amended Complaint on Jan.
27, 2022, both of which were opposed by the Defendants. Pursuant to
a Settlement Agreement with the Defendants, whose substantive terms
were not docketed at the request of the parties but were soon after
made public, the Plaintiffs withdrew their Motion to Compel on Jan.
31, 2022 and made another payment to the Philadelphia Bail Fund per
the agreement of the parties.
The Plaintiffs filed a Motion for Preliminary Injunction on Jan. 7,
2022. They filed a Third Amended Motion for Class Certification on
Jan. 28, 2022. Their Third Amended Complaint, no longer opposed by
the Defendants, was ultimately docketed on Feb. 22, 2022.
The Third Amended Complaint names 16 Plaintiffs (collectively, the
"named Plaintiffs"). Named Plaintiffs Thomas Remick, Nadiyah
Walker, Jay Diaz, Michael Alejandro, Michael Dantzler, Robert
Hinton, Joseph Weiss, Joseph Skinner, Saddam Abdullah, and James
Bethea were, at the time of the filing of the initial Complaint and
Plaintiffs' first Motion for Class Certification, incarcerated in
PDP facilities. The Third Amended Complaint added Clay Pizarro,
Michael Flynn, Nasir Lewis, Dyquill Pledger, Troy Harley, and
Christian Maldonado as named Plaintiffs. These newly added named
Plaintiffs, in addition to Alejandro and Walker, are, as of the
time of the filing of the Third Amended Complaint and the Third
Amended Motion for Class Certification, incarcerated in PDP
facilities.
The Third Amended Complaint asserts four claims for relief: Three
pursuant to 42 U.S.C. Section 1983 and one pursuant to the
Americans with Disabilities Act ("ADA"). Count I asserts violations
of the Plaintiffs' Eighth and Fourteenth Amendment rights based on
correctional officers failing to provide "for their reasonable
health and safety" and "humane conditions of confinement." Count II
asserts violations of the Plaintiffs' First, Sixth, and Fourteenth
Amendment rights based on a lack of access to courts and counsel.
Count III asserts violations of the Plaintiffs' Fourteenth
Amendment rights based on the Defendants "placing and keeping them
in punitive or administrative segregation and placing financial
assessments on their inmate accounts without due process." Count IV
asserts violations of the ADA on behalf of a proposed "Disability
Subclass" based on being denied "reasonable accommodations" and
"adequate out-of-cell time and medical and mental health
treatment."
The Plaintiffs request that the Court correspondingly orders
injunctive and declaratory relief, including "injunctive relief
ordering Defendants to mitigate the serious risk of illness, death,
and harm from COVID-19, and to provide constitutional conditions of
confinement, access to counsel and courts, and due process to those
in disciplinary or administrative segregation in the PDP" and "a
declaration that the Defendants' policies and practices violate the
First, Sixth, Eighth, and Fourteenth Amendments, and that
Defendants' policies and practices violate the Americans with
Disabilities Act."
The Defendants moved to dismiss the Third Amended Complaint on Feb.
25, 2022.
II. Discussion
Judge Schiller finds that class certification is appropriate for
Plaintiffs' claims for declaratory and injunctive relief pursuant
to Fed. R. Civ. P. 23(a) and 23(b)(2).
A. Class Definition
The Plaintiffs propose certifying one class and three subclasses,
defined as follows:
a. Class: All persons who are currently or will be in the
future confined in the Philadelphia Department of Prisons, and are
or will be subjected to unconstitutional and otherwise illegal
conditions of confinement, including extended lockdowns; lack of
out-of-cell time; denial of timely and adequate medical care; lack
of protection from physical assaults; denial of access to the
courts, to legal counsel, and to timely legal mail; lack of due
process in disciplinary proceedings; lack of access to necessary
exercise; inadequate sanitation, hygiene, quarantine, and
separation practices and procedures to protect against COVID-19
infections.
b. Pre-Trial Subclass: All persons who are currently or will
be in the future confined in the Philadelphia Department of Prisons
as pretrial detainees, and are or will be subjected to
unconstitutional and otherwise illegal conditions of confinement,
including extended lockdowns; lack of out-of-cell time; denial of
timely and adequate medical care; lack of protection from physical
assaults; denial of access to the courts, to legal counsel, and to
timely legal mail; lack of due process in disciplinary proceedings;
lack of access to necessary exercise; inadequate sanitation,
hygiene, quarantine, and separation practices and procedures to
protect against COVID-19 infections.
c. Sentenced Subclass: All persons who are currently or will
be in the future confined in the Philadelphia Department of Prisons
as sentenced prisoners, and are or will be subjected to
unconstitutional and otherwise illegal conditions of confinement,
including extended lockdowns; lack of out-of-cell time; denial of
timely and adequate medical care; lack of protection from physical
assaults; denial of access to the courts, to legal counsel, and to
timely legal mail; lack of due process in disciplinary proceedings;
lack of access to necessary exercise; inadequate sanitation,
hygiene, quarantine, and separation practices and procedures to
protect against COVID-19 infections.
d. Disability Subclass: All persons who are currently or will
be in the future confined in the Philadelphia Department of Prisons
who have physical and or psychiatric impairments that substantially
limit one or more of their major life activities, and are or will
be subjected to unconstitutional and otherwise illegal conditions
of confinement, including extended lockdowns; lack of out-of-cell
time; denial of timely and adequate medical care; lack of
protection from physical assaults; denial of access to the courts,
to legal counsel, and to timely legal mail; lack of due process in
disciplinary proceedings; lack of access to necessary exercise;
inadequate sanitation, hygiene, quarantine, and separation
practices and procedures to protect against COVID-19 infections.
Judge Schiller redefines the Plaintiffs' class as follows: "All
persons who are currently or will be in the future confined in the
Philadelphia Department of Prisons, and are or will be subjected to
illegal or unconstitutional conditions of confinement as a result
of policies and restrictions implemented in response to the
COVID-19 pandemic, and the PDP's staffing shortage."
He sees no need to qualify the class definition in the manner
proposed by the Plaintiffs, including by fastening a non-exhaustive
list of the types of conduct allegedly at issue to the definition's
tail end. He finds it unnecessary.
Judge Schiller will, however, create and certify the Disability
Subclass to pursue Count IV's ADA claim as follows: "All persons
who are currently or will be in the future confined in the
Philadelphia Department of Prisons who have physical and/or
psychiatric impairments that substantially limit one or more of
their major life activities, and are or will be subjected to
illegal or unconstitutional conditions of confinement as a result
of policies and restrictions implemented in response to the
COVID-19 pandemic, and the PDP's staffing shortage."
B. Rule 23(a)
Judge Schiller finds that the Plaintiffs' class and subclass
satisfy the criteria of Fed. R. Civ. P. 23(a). He holds that (i)
the numerosity is not challenged by the Defendants as it pertains
to either the broader class or the Disability Subclass; (ii) the
proposed class has issues and claims "capable of classwide
resolution," sufficient to satisfy the commonality requirement;
(iii) the injuries sustained by the named Plaintiffs and the class
members arise from the same practices and policies that have caused
the complained-of conditions to exist and continue; (iv) the
Defendants do not contest that the Plaintiffs' counsel is amply
qualified, experienced, and able to conduct this litigation; and
(v) the interests of the named Plaintiffs align with and are not
antagonistic to those of the class.
C. Rule 23(b)(2)
Judge Schiller finds that the proposed class satisfies the
requirements of Rule 23(b)(2). He explains that the key to the
(b)(2) class is the indivisible nature of the injunctive or
declaratory relief warranted -- the notion that the conduct is such
that it can be enjoined or declared unlawful only as to all of the
class members or as to none of them." The instant case involves
systemwide policies and practices that affect all class members at
each of PDP's facilities. Accordingly, Judge Schiller will certify
the class and subclass as defined.
D. Class Discovery
Judge Schiller will not further delay certification of the class
because of the Defendants' unfounded claim that they have been
deprived of the opportunity to conduct class discovery. The
Defendants do not cite to any authority supporting their averred
entitlement to this discovery. And there is no such entitlement;
instead, what matters is the Court's satisfaction that the
prerequisites of Rule 23 are fulfilled by a preponderance of the
evidence after a rigorous analysis. Further, Judge Schiller is not
aware of the Defendants engaging in class discovery, or even
requesting to do so, at previous points in the litigation despite
the fact that class certification motions have been pending in the
action since April 20, 2020. Consequently, he will not hold up
class certification in light of its satisfaction that each of the
Rule 23 requirements have been met based on the record already
before the Court.
E. Motions to Intervene and for Contempt
Six PDP inmates -- Dwayne Henry, Walter Dobbins IV, Jeffrey Lewis,
Isaiah Hudgins, Lauren Williams, and David Edwards -- have filed
Motions to Intervene and Motions for Contempt pursuant to Fed. R.
Civ. P. 23(d), Fed. R. Civ. P. 24, and Fed. R. Civ. P. 70(a).
Judge Schiller will deny these motions. He holds that the existing
named Plaintiffs -- whose circumstances and interests are
substantially identical to those faced by the potential
intervenors, as the potential intervenors set forth in their
respective motions -- are adequate representatives of the class. No
potential intervenor has shown "proof of collusion between the
representative and the adverse party," that "the representative has
an interest adverse to the intervenor," or a "failure of the
representative to fulfill his duty." Permissive intervention under
Fed. R. Civ. P. 24(b) is denied for the same reasons.
Finally, some individuals move the Court for contempt pursuant to
Fed. R. Civ. P. 70(a). This rule states that "if a judgment
requires a party to convey land, to deliver a deed or other
document, or to perform any other specific act and the party fails
to comply within the time specified, the court may order the act to
be done -- at the disobedient party's expense -- by another person
appointed by the court. When done, the act has the same effect as
if done by the party." However, when cited by potential
intervenors, they state Rule 70(a) as follows: "If a party fails to
perform a specific act required by a judgment, the court may order
the act to be done -- at the disobedient party's expense." This is
a misstatement of Rule 70(a), and it does not apply in the case.
Several of these motions also request individual monetary damages.
However, a Rule 23(b)(2) class is not the appropriate vehicle to
pursue these damages.
These Motions to Intervene and Motions for Contempt are therefore
denied.
III. Conclusion
For the reasons he discussed, Judge Schiller finds that the
Plaintiffs have met the requirements for certification of a Rule
23(b)(2) class action. Accordingly, their Third Amended Motion for
Class Certification is granted. In addition, Judge Schiller denies
the potential intervenors' Motions to Intervene and Motions for
Contempt. An Order consistent with the Memorandum will be docketed
separately.
A full-text copy of the Court's March 11, 2022 Memorandum is
available at https://tinyurl.com/4vsz3d2m from Leagle.com.
POLARIS INDUSTRIES: Faces Suit Over Vehicles' OSHA Compliance
-------------------------------------------------------------
CY MITCHELL, individually on behalf of himself and all others
similarly situated v. POLARIS INDUSTRIES, INC., a Delaware
corporation; POLARIS SALES, INC., a Minnesota corporation; POLARIS
INDUSTRIES, INC., a Minnesota corporation; and DOES 1 through 10,
inclusive, Case No. 2:22-cv-00467 (D. Nev., March 15, 2022) is a
class action against the defendants on behalf of all persons who
purchased in Nevada since May 25, 2017 alleging that none of the
Class Vehicles sold by Polaris meet the department of Occupational
Safety and Health Administration (OSHA) requirements of 29 C.F.R.
section 1928.53.
According to the complaint, Polaris tells all of their customers
that their rollover protection system (ROPS) are safe because they
meet this standard. They do not. Polaris has also staved off
federal regulations by the U.S. Consumer Product Safety Commission
("CPSC") in part by causing the adoption of newly created industry
standards as part of the self-regulation revolution. Even after
adopting farm tractor standards issued for worker safety on farms
in the early 1970s, Polaris cheats and does not even meet those
standards, says the suit.
Polaris Utility Terrain Vehicles ("UTVs") (they are also called
side-by-sides) that Polaris claimed/advertised/marked/certified
that the vehicles' ROPS complied with the department of OSHA
requirements/standards of 29 C.F.R. § 1928.53 (which is for
agricultural tractors).
"Class Vehicles" is defined to include, but are not limited to the
following models: Polaris RZR XP 4 Turbo S; Polaris RZR XP 4 Turbo
EPS, Polaris RZR PRO XP Ultimate, Polaris RZR XP Turbo S; Polaris
RZR XP Turbo EPS; Polaris RZR XP 4 1000 High Lifter; Polaris RZR XP
4 Turbo S Velocity; Polaris RZR PRO XP Premium; Polaris RZR XP 4
1000 Premium; Polaris RZR XP 4 Turbo; Polaris RZR XP 4 Turbo
Dynamix Edition; Polaris RZR XP 4 Turbo Fox Edition; and Polaris
RZR XP 1000 Trails & Rocks.
Roof strength is a vital safety concern to consumers given the
strong likelihood of UTVs rolling over. The failure to meet all
applicable federal and state statutes, standards, regulations, and
self-adopted regulations, including OSHA 29 C.F.R. section 1928.53
requirements is material information for consumers
purchasing/leasing UTVs, such as the Class Vehicles.
A UTV is a motorized vehicle with four or more low pressure tires 7
designed for off-road use and intended by the manufacturer
primarily for recreational use by one or more persons. UTVs are a
relatively new product in the motorized off-road category, and
their speed and design make them unique from all-terrain vehicles
("ATVs").
Plaintiff Cy Mitchell is an individual who resides in the State of
Nevada. The Plaintiff is a member of the putative Nevada Class
defined as: All persons in Nevada that purchased a Class Vehicle in
the four years preceding the original filing in the Eastern
District
of California, or since May 25, 2017.[BN]
The Plaintiff is represented by:
John P. Kristensen (SBN 224132)
CARPENTER & ZUCKERMAN
8827 W. Olympic Blvd.
Beverly Hills, California 90211
Telephone: (310) 273-1230
E-mail: kristensen@cz.law
- and -
Todd M. Friedman, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard Street, Suite 780
Woodland Hills, CA 91367
Telephone: (877) 619-8966
E-mail: tfriedman@toddflaw.com
- and -
Christopher W. Wood (SBN 193955)
DREYER BABICH BUCCOLA
WOOD CAMPORA, LLP
20 Bicentennial Circle
Sacramento, CA 95826
Telephone: (916) 379-3500
E-mail: cwood@dbbwc.com
- and -
Lawrence W. Freiman, Esq.
FREIMAN LEGAL
100 Wilshire Blvd., Suite 700
Santa Monica, CA 90401
Telephone: (310) 300-917-1004
E-mail: lawrence@freimanlegal.com
- and -
Leah Martin, Esq.
LEAH MARTIN LAW
601 S. Rancho Dr., Ste. C-26
Las Vegas, NE 89106
Telephone: (702) 420-2733
E-mail: lmartin@leahmartinglv.com
PORTFOLIO RECOVERY: Brach Files FDCPA Suit in E.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Portfolio Recovery
Associates, LLC. The case is styled as Sara Brach, individually and
on behalf of all others similarly situated v. Portfolio Recovery
Associates, LLC, Case No. 1:22-cv-01465-EK-RML (E.D.N.Y., March 16,
2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Portfolio Recovery Associates LLC --
https://www.portfoliorecovery.com/ -- a subsidiary of PRA Group,
Inc., specializes in working with people in debt repayment.[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
PROCTER & GAMBLE: Shelly Sues Over Deceptive Charcoal Products
--------------------------------------------------------------
ANTONIO SHELLY and MAURICE FORBES, individually and on behalf of
all others similarly situated v. THE PROCTER & GAMBLE CO., Case No.
5:22-cv-01652 (N.D. Cal., March 15, 2022) alleges that the
Defendant falsely represents that the Charcoal Products'
"charcoal-infused bristles" will "naturally whiten teeth" in as
little as one week.
The Plaintiffs contend that the advertising claims are false,
misleading, and reasonably likely to deceive the public because the
Charcoal Products do not in fact provide whitening benefits, and
certainly do not provide whitening benefits within one week of use.
In fact, charcoal in dental products such as toothbrushes has been
shown to have no meaningful effect on teeth whitening.
Proctor & Gamble has made millions of dollars selling its Oral-B
charcoal toothbrush products. These products include the (1) Oral-B
Charcoal Soft Whitening Therapy Toothbrush, (2) Oral-B Clinical
Charcoal Battery Powered Toothbrush, and (3) Oral-B Charcoal
Electric Toothbrush Replacement Brush Heads Refill (the "Products"
or "Charcoal Products"). To capitalize on consumer demand for teeth
whitening products, the Defendant makes false and misleading
representations about its Charcoal Products to sell the Products at
a premium price. Based on Defendant's false and misleading
whitening claims, Plaintiffs Antonio Shelly and Maurice Forbes, and
the class members they seek to represent, bought Defendant's
Charcoal Products at a price premium, says the suit.
As a direct and proximate result of Defendant's false and
misleading advertising claims and marketing practices, Plaintiffs
and members of the Class, as defined herein, purchased the Charcoal
Products. Plaintiffs and members of the Class purchased the
Charcoal Products because they were deceived into believing the
Charcoal Products whiten teeth.
As a result, the Plaintiffs and the Class Members purchased the
Charcoal Products and have been injured in fact because the
Charcoal Products were not effective for whitening. Plaintiffs and
the Class Members have suffered an ascertainable and out-of-pocket
loss. Plaintiffs and the Class Members seek a refund of the price
premium they paid for these Products.
The Plaintiffs assert claims on behalf of themselves and similarly
situated purchasers of the Defendant's Charcoal Products for
violations of the consumer protection laws of California and New
York, unjust enrichment, breach of implied warranty of fitness, and
breach of express warranty.
Plaintiff Shelly purchased the Oral-B 20 Charcoal Soft Whitening
Therapy Toothbrush on or about October 2021 at CVS in San Jose,
California. Before purchasing the Product, Mr. Shelly reviewed
information about the Product, including the representation that
the Product would whiten his teeth. When reviewing the Product
label, disclosures, warranties, and marketing materials, Mr. Shelly
understood them as representations and warranties by Defendant that
the Product would whiten his teeth.
The Defendant manufacturers, markets, sells, and distributes the
Products throughout the United States. The Defendant manufactured,
marketed, sold, and distributed the Products during the Class
Period. The Defendant was responsible for the planning and
execution of the advertising, marketing, labeling, packaging and
testing of the Products during the Class Period.[BN]
The Plaintiffs are represented by:
Sarah N. Westcot,Esq.
BURSOR & FISHER, P.A.
701 Brickell Ave., Suite 1420
Miami, FL 33131-2800
Telephone: (305) 330-5512
Facsimile: (305) 676-9006
E-Mail: swestcot@bursor.com
PUERTO RICO: Bid for Default in Hernandez-Castrodad Suit Denied
---------------------------------------------------------------
In the case, JOSE ERNESTO HERNANDEZ-CASTRODAD, IRIS MARTA MARCANO,
AND CONJUGAL PARTNERSHIP HERNANDEZ-MARCANO, Plaintiffs v. SIGFRIDO
STEIDEL-FIGUEROA, IN HIS OFFICIAL CAPACITY AS ADMINISTRATOR OF THE
ADMINISTRATION OF TRIBUNALS OF PUERTO RICO, Defendant, Civ. No.
20-1507 (SCC) (D.P.R.), Judge Silvia Carreno-Coll of the U.S.
District Court for the District of Puerto Rico:
(i) denied the Plaintiffs' motion to enter a default against
Sigfrido Steidel-Figueroa; and
(ii) granted Steidel's motion to quash the Plaintiffs' four
subpoenas duces tecum.
I. Background
Jose Ernesto Hernandez-Castrodad, Iris Marta Marcano, and the
conjugal partnership between them bring the putative class-action
lawsuit against Sigfrido Steidel-Figueroa in his official capacity
as Administrator of the Administration of Tribunals of Puerto Rico.
Initially, the Court granted Steidel's motion to dismiss the
Plaintiffs' complaint and entered judgment in his favor. But then,
on the Plaintiffs' motion, it reconsidered and decided instead to
grant in part and deny in part his motion to dismiss. Now there is
a claim remaining.
The Plaintiffs have moved the Court to enter a default against
Steidel because he has not responded to their complaint. And
Steidel has moved the Court to quash four subpoenas duces tecum
that the Plaintiffs have served.
II. Motion for Entry of Default
The Plaintiffs have asked the Court to enter a default against
Steidel because he has failed to file his answer within 14 days of
receiving notice of the Court's opinion and order where, upon
reconsideration, it granted in part and denied in part his
pre-answer motion to dismiss.
Mr. Steidel contends that he does not have to file an answer until
the Court files an amended judgment and the Plaintiffs file an
amended complaint containing only the allegations that relate to
the remaining claim. He argues as well that the 14-day window to
file an answer after a court denies a pre-answer motion has not
been triggered here because the Court granted in part and denied in
part his motion to dismiss. Because the Court did not deny outright
his pre-answer motion, his argument goes, the 14-day window has not
been triggered.
Judge Carreno-Coll holds that the Court or the Clerk of Court "must
enter a party's default" when it "has failed to plead or otherwise
defend," its failure is shown by "affidavit or otherwise," and
"affirmative relief" is sought against it. Though Steidel has
failed to plead, he has otherwise defended himself. He has
responded to the Plaintiffs' motion to enter a default against him
and filed a motion to quash the Plaintiffs' subpoenas. Because he
is defending himself, Judge Carreno-Coll denies the Plaintiffs'
motion to enter a default against him.
III. Motion to Quash
Mr. Steidel has moved the Court to quash four subpoenas duces
tecum. He argues, as relevant, that these subpoenas are premature
because the parties have not yet conferred pursuant to Rule 26(f).
Judge Carreno-Coll states that a subpoena is a discovery device
and, accordingly, is subject to the discovery limitations in Rule
26. Rule 26(d)(1) provides that "a party may not seek discovery
from any source before the parties have conferred as required by
Rule 26(f)." The Plaintiffs, therefore, cannot use subpoenas to
obtain discovery until the parties have conferred pursuant to Rule
26(f). Because the parties have not yet conferred pursuant to Rule
26(f), the Plaintiffs' subpoenas are improper. Judge Carreno-Coll
notes as well that there is no need to serve subpoenas on a party
to obtain discovery.
IV. Conclusion
Judge Carreno-Coll denied the Plaintiffs' motion to enter a default
against Steidel. She granted Steidel's motion to quash the
Plaintiffs' four subpoenas duces tecum, which are quashed. Finally,
Judge Carreno-Coll ordered Steidel to file his answer on March 23,
2022.
A full-text copy of the Court's March 9, 2022 Opinion & Order is
available at https://tinyurl.com/2r4m8mph from Leagle.com.
RICCO MARASCA: Calcano Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Ricco Marasca
Chelsea, Inc. The case is styled as Marcos Calcano, on behalf of
himself and all other persons similarly situated v. Ricco Marasca
Chelsea, Inc., Case No. 1:22-cv-02182 (S.D.N.Y., March 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.[BN]
The Plaintiff is represented by:
Dana Lauren Gottlieb, Esq.
Jeffrey Michael Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (917) 796-7437
Fax: (212) 982-6284
Email: danalgottlieb@aol.com
nyjg@aol.com
RIVIAN AUTOMOTIVE: Robbins Geller Reminds of May 6 Deadline
-----------------------------------------------------------
Robbins Geller Rudman & Dowd LLP announces that purchasers of
Rivian Automotive, Inc. (NASDAQ: RIVN) common stock pursuant or
traceable to Rivian's initial public offering on or about November
10, 2021 ("IPO") have until May 6, 2022 to seek appointment as lead
plaintiff in Crews v. Rivian Automotive, Inc., No. 22-cv-01524
(C.D. Cal.). Commenced on March 7, 2022, the Rivian class action
lawsuit charges Rivian, certain of its top executive officers and
directors, as well as the underwriters of the IPO with violations
of the Securities Act of 1933.
If you suffered substantial losses and wish to serve as lead
plaintiff of the Rivian class action lawsuit, please provide your
information by clicking here. You can also contact attorney J.C.
Sanchez of Robbins Geller by calling 800/449-4900 or via e-mail at
jsanchez@rgrdlaw.com. Lead plaintiff motions for the Rivian class
action lawsuit must be filed with the court no later than May 6,
2022.
CASE ALLEGATIONS: Rivian is an electric vehicle ("EV") company that
purports to design, develop, and manufacture category-defining EVs
and accessories and sell them directly to customers in the consumer
and commercial markets. In 2018, Rivian unveiled its first consumer
EVs: the R1T electric pickup truck and the R1S electric SUV. On
November 10, 2021, Rivian offered 153 million shares to the public
through an IPO at a price of $78.00 per share for total proceeds of
$11.93 billion. According to the IPO's registration statement, the
"R1T and R1S introduce our brand to the world and will serve as our
flagship vehicles as we continue to expand our offerings." Based on
Rivian's production forecast, Rivian expected to fill its 55,400
R1T and R1S backlog by the end of 2023. Thus, while the number of
preorders underscored Rivian's potential for success - that
potential depended on customers ultimately completing their
purchases once Rivian's EVs became available.
But as the Rivian class action lawsuit alleges, unbeknownst to
investors, the IPO's registration statement's representations were
materially inaccurate, misleading, and/or incomplete because they
failed to disclose, among other things, that the R1T and R1S were
underpriced to such a degree that Rivian would have to raise prices
shortly after the IPO and that these price increases would tarnish
Rivian's reputation as a trustworthy and transparent company and
would put a significant number of the existing backlog of 55,400
preorders along with future preorders in jeopardy of cancellation.
On March 1, 2022, Rivian announced that it was raising the prices
of its R1T pickup and R1S SUV by 17 percent and 20 percent,
respectively, and that the new prices would apply to nearly all
preorders. At the time of the announcement, Rivian had only
produced and sold roughly 1,000 vehicles. A March 2, 2022 article
in the online publication ARS Technica, titled "Rivian surprises,
outrages EV truck buyers with 20% price hike," questioned the
reasons behind the price increases. An article published in
Electrek on March 2, 2022, titled "Rivian buyers are cancelling at
alarming rates after price increases," noted that: "A poll on the
Rivian subreddit, one of the biggest communities of Rivian fans,
gives us a better idea of the pulse of the reservation holders, and
it shows a high cancelation rate" and provided a screenshot of the
poll, which showed a majority of voters planned to cancel their
reservations.
By the commencement of the Rivian class action lawsuit, the price
of Rivan's shares closed at $42.43 per share, significantly below
their $78.00 IPO price.
THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation
Reform Act of 1995 permits any purchaser of Rivian common stock
pursuant or traceable to the IPO to seek appointment as lead
plaintiff in the Rivian class action lawsuit. A lead plaintiff is
generally the movant with the greatest financial interest in the
relief sought by the putative class who is also typical and
adequate of the putative class. A lead plaintiff acts on behalf of
all other class members in directing the class action lawsuit. The
lead plaintiff can select a law firm of its choice to litigate the
class action lawsuit. An investor's ability to share in any
potential future recovery of the class action lawsuit is not
dependent upon serving as lead plaintiff.
ABOUT ROBBINS GELLER RUDMAN & DOWD LLP: Robbins Geller Rudman &
Dowd LLP is one of the world's leading complex class action firms
representing plaintiffs in securities fraud cases. The Firm is
ranked #1 on the 2021 ISS Securities Class Action Services Top 50
Report for recovering nearly $2 billion for investors last year
alone - more than triple the amount recovered by any other
plaintiffs' firm. With 200 lawyers in 9 offices, Robbins Geller's
attorneys have obtained many of the largest securities class action
recoveries in history, including the largest securities class
action recovery ever - $7.2 billion - in In re Enron Corp. Sec.
Litig. Please visit http://www.rgrdlaw.comfor more information.
[GN]
ROLLER DERBY: Ortega Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Roller Derby Skate
Corp. The case is styled as Juan Ortega, individually, and on
behalf of all others similarly situated v. Roller Derby Skate
Corp., Case No. 1:22-cv-02155-AJN (S.D.N.Y., March 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Roller Derby Skate Corporation -- https://rollerderby.com/ --
offers a wide variety of skating products, including: Recreational
Skates, Fitness Skates, Derby Skates, Ice Skates and more.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
SELECTQUOTE INC: Faces Hartel Class Action in New York
-------------------------------------------------------
SelectQuote, Inc. disclosed in its Form 10-K/A Report for the year
ended June 30, 2021, filed with the Securities and Exchange
Commission on February 14, 2022, that a class action lawsuit was
filed against the company alleging that the company violated
sections 10(b) and 20(a) and Rule 10b-5 of the Exchange Act.
On August 17, 2021, a putative securities class action lawsuit was
filed against the Company and two of its executive officers in the
U.S. District Court for the Southern District of New York.
The complaint, captioned "Hartel v. SelectQuote, Inc., et al.,"
Case No. 1:21-cv-06903, asserts securities fraud claims on behalf
of a putative class of plaintiffs who purchased or otherwise
acquired shares of the Company's common stock between February 8,
2021 and May 11, 2021.
Specifically, the complaint alleges the defendants violated
Sections 10(b) and 20(a) and Rule 10b-5 of the Exchange Act by
making materially false and misleading statements and failing to
disclose material adverse facts about the company's business,
operations, and prospects, allegedly causing the Company's common
stock to trade at artificially inflated prices during the Relevant
Period. The plaintiffs seek unspecified damages and reimbursement
of attorneys' fees and certain other costs.
SelectQuote, Inc. is into insurance agents/brokers & services based
in Kansas.
SELECTQUOTE INC: Faces Securities Suit in New York Court over IPO
-----------------------------------------------------------------
SelectQuote, Inc. disclosed in its Form 10-Q Report for the
quarterly period ended December 31 2021, filed with the Securities
and Exchange Commission on February 14, 2022, that a class action
was filed against the company alleging that the defendants violated
Sections 10(b) and 20(a) and Rule 10b-5 of the Exchange Act and
Sections 11, 12(a)(2), and 15 of the Securities Act.
On October 7, 2021, a putative securities class action lawsuit was
filed in the U.S. District Court for the Southern District of New
York against the Company, two of its executive officers, and six
current or former members of the company's board of Directors,
along with the underwriters of its initial public offering of
common stock.
The complaint, captioned "West Palm Beach Police Pension Fund v.
SelectQuote, Inc., et al.," Case No. 1:21-cv-08279, asserts claims
for securities law violations on behalf of a putative class of
plaintiffs who purchased shares of the company's common stock (i)
in or traceable to its IPO or (ii) between May 20, 2020 and August
25, 2021.
Specifically, the complaint alleges the defendants violated
Sections 10(b) and 20(a) and Rule 10b-5 of the Exchange Act by
making materially false and misleading statements and failing to
disclose material adverse facts about the Company's financial
well-being and prospects, allegedly causing the Company's common
stock to trade at artificially inflated prices during the WPB
Relevant Period.
The complaint also alleges the defendants violated Sections 11,
12(a)(2), and 15 of the Securities Act by making misstatements and
omissions of material facts in connection with the Offering,
allegedly causing a decline in the value of the Company's common
stock. The plaintiffs seek unspecified damages, rescission, and
reimbursement of attorneys' fees and certain other costs.
SelectQuote, Inc. is into insurance agents/brokers services based
in Kansas.
SHERBURNE COUNTY, MN: Court Narrows Claims in Brenizer v. Jail
--------------------------------------------------------------
In the case, Kyle-William Brenizer, et al., Plaintiffs v. The
County of Sherburne, et al., Defendants, Civil No. 21-1301
(DSD/TNL) (D. Minn.), Judge Davis S. Doty of the U.S. District
Court for the District of Minnesota granted in part and denied in
part the amended motion to dismiss.
I. Background
The matter is before the Court upon the Amended Report and
Recommendation of U.S. Magistrate Judge Tony N. Leung dated Feb. 1,
2022 (R&R).
The putative class action arises out of claims by pre-trial
detainees and convicted inmates housed at the Sherburne County Jail
that the Defendants violated their constitutional rights by
severely limiting their ability to exercise during the COVID-19
pandemic and by subjecting them to black mold and other
contaminants while in their cells.
The Plaintiffs allege that the conditions of their confinement in
this regard constitute cruel and unusual punishment in violation of
the Eighth Amendment (Count 1) and have resulted in a denial of
their due process rights under the Fourteenth Amendment (Count 2).
They also allege that the Defendants are liable under Monell v.
Department of Social Services of the City of New York, 436 U.S. 658
(1978), due to unconstitutional policies, practices, and customs
(Count 3), and City of Canton v. Harris, 489 U.S. 378 (1989), for
failure to adequately train correctional officers at the Sherburne
County Jail (Count 4).
The magistrate judge recommends that the Court dismisses Counts 1,
2, and 4 without prejudice and dismiss Count 3 without prejudice to
the extent it is based on alleged constitutional violations based
on a custom, pattern, or practice of restricting out-of-cell
exercise. The magistrate judge also recommends that the Court
dismisses the individual defendants without prejudice given the
Plaintiffs' failure to specifically identify alleged misconduct by
each of the named Defendants. Finally, the magistrate judge
recommends that the Court dismisses the Plaintiffs' request for
punitive damages with prejudice. If upheld, this leaves Count 3,
insofar as it relates to the Defendants' out-of-cell exercise
policies, as the Plaintiffs' only remaining claim.
II. Discussion
The Plaintiffs object to the R&R in two respects. First, they argue
that the magistrate judge erred in recommending dismissal of the
Monell claim based on restrictions relating to out-of-cell
exercise. The magistrate judge concluded that this aspect of the
Monell claim is not viable because plaintiffs failed to plausibly
allege "a widespread, persistent pattern of restricting out-of-cell
exercise" by Sherburne County. The Plaintiffs contend that they
were not required to allege exercise restrictions occurring before
the pandemic to establish the requisite widespread and persistent
practice at issue.
But, as noted, the magistrate judge did not rely solely on the lack
of pre-pandemic exercise restrictions in determining that
plaintiffs failed to adequately allege the requisite pattern.
Rather, the magistrate judge reviewed the complaint as a whole and
concluded that the Plaintiffs did little more than raise
boilerplate allegations as to the existence of "customs, patterns,
or practices regarding out-of-cell exercise." Judge Doty agrees
with the magistrate judge's well-reasoned and thorough analysis and
overrules the Plaintiffs' objection in this regard.
Second, the Plaintiffs object to the magistrate judge's
recommendation that the Court dismisses the Canton claim, which is
based on the alleged failure to train correctional officers as to
the minimal amount of exercise inmates must be allowed to engage
in. The magistrate judge concluded that this claim is not viable
because the Plaintiffs failed to allege that Sherburne County knew
or had reason to know that its training as to prisoner exercise was
inadequate. Absent such notice, a failure-to-train claim cannot
proceed.
Judge Doty again agrees with the magistrate judge's analysis and
conclusion. In doing so, he does not minimize the many hardships
placed on inmates during the ongoing pandemic. Those restrictions
are designed to prevent, or at least curtail, widespread infection
in prisons. Based on the allegations set forth in the complaint,
the restrictions at issue were among those imposed to try to keep
inmates safe. Under these circumstances, absent previous such
restrictions, the Plaintiffs have failed to adequately plead that
the restrictions were due to a deliberate indifference on the part
of Sherburne County. This objection is also overruled.
III. Conclusion
Accordingly, Judge Doty adopted the R&R in its entirety and
overruled the objections. He granted in part and denied in part the
amended motion to dismiss.
Counts 1, 2, and 4 are dismissed without prejudice. Count 3 is
dismissed without prejudice to the extent the Plaintiffs assert the
alleged constitutional violations resulted from a custom of
Sherburne County regarding out-of-cell exercise.
The Individual Defendants are dismissed without prejudice.
The Plaintiffs' request for punitive damages against Sherburne
County is dismissed with prejudice.
A full-text copy of the Court's March 9, 2022 Order is available at
https://tinyurl.com/2s38mym2 from Leagle.com.
SMITHS DETECTION: N.D. California Refuses to Remand Nguyen Suit
---------------------------------------------------------------
In the case, VIET NGUYEN, Plaintiff v. SMITHS DETECTION INC.,
Defendant, Case No. 21-cv-00800-JD (N.D. Cal.), Judge James Donato
of the U.S. District Court for the Northern District of California
denied the Plaintiff's request for the case to be remanded to the
Superior Court of the State of California for the County of
Alameda.
I. Background
Plaintiff Nguyen, on behalf of himself and a putative class of
non-exempt hourly employees, sued Defendant Smiths for wage and
hour claims under California state law. The complaint was
originally filed in the Alameda County Superior Court, and was
removed by Smiths Detection under the Class Action Fairness Act
(CAFA), 28 U.S.C. Section 1332(d). Nguyen has asked for the case to
be remanded on the ground that Smiths Detection has not plausibly
established the $5 million minimum amount in controversy required
for CAFA jurisdiction.
II. Discussion
Mr. Nguyen does not contest the minimum diversity of citizenship
required under CAFA, nor does he contend that the putative class is
less than 100 individuals. The only disputed issue is whether
Smiths Detection has plausibly demonstrated that the amount in
controversy exceeds the $5 million statutory threshold for CAFA
jurisdiction.
Judge Donato finds that the meal and rest break claims reasonably
put $4.77 million at stake in the litigation. Smiths Detection
crosses the $5 million CAFA threshold by estimating a 25% award of
attorneys' fees and costs based on these claims. The complaint
expressly seeks "reasonable attorneys' fees," and Judge Donato has
concluded that a 25% award is reasonable in these circumstances.
Consequently, the amount in controversy for removal purposes is
properly increased by $1.19 million in fees and costs (25% of $4.77
million), which brings the total amount at stake above the
statutory minimum. Judge Donato need not take up the valuation of
the unpaid wages and waiting time penalties, but they presumably
would raise the amount in controversy even higher.
III. Conclusion
Judge Donato concludes that the case was properly removed to
federal court under CAFA. Hence, a remand is denied. The parties
are directed to schedule an initial case management conference in
June 2022.
The request for judicial notice is denied, and the Court did not
rely on any of the proffered materials.
A full-text copy of the Court's March 9, 2022 Order is available at
https://tinyurl.com/48v6dmnu from Leagle.com.
SUSHI MARU: Jung Seeks Overtime Wages Under FLSA & NYLL
-------------------------------------------------------
SUNG SIK JUNG on behalf of himself and all others similarly
situated v. SUSHI MARU EXPRESS and DONG CHEOL LEE, Case No.
1:22-cv-01460 (E.D.N.Y., March 16, 2022) seeks to recover unpaid
overtime wages, and other damages pursuant to the Fair Labor
Standards Act and the New York Labor Law.
The Plaintiff seeks injunctive and declaratory relief against
Defendants' alleged unlawful actions, unpaid overtime wage,
liquidated damages, compensatory damages, interest, and attorneys'
fees and costs pursuant to the FLSA and the NYLL.
The Defendants own and operate Sushi Maru Express, a sushi station
in the grocery store Uncle Giuseppe's Marketplace, New York.[BN]
The Plaintiff is represented by:
Ryan Kim, Esq.
RYAN KIM LAW, P.C.
222 Bruce Reynolds Blvd. Suite 490
Fort Lee NJ 07024
Telephone: (718) 573-1111
E-mail: ryan@ryankimlaw.com
TELEFONAKTIEBOLAGET LM: Lieff Cabraser Reminds of May 2 Deadline
----------------------------------------------------------------
The law firm of Lieff Cabraser Heimann & Bernstein, LLP announces
that class action litigation has been filed on behalf of investors
who purchased or otherwise acquired the securities of
Telefonaktiebolaget LM Ericsson ("Ericsson" or the "Company")
(Nasdaq: ERIC) between April 27, 2017 and February 25, 2022,
inclusive (the "Class Period").
If you purchased or otherwise acquired Ericsson securities during
the Class Period, you may move the Court for appointment as lead
plaintiff in the action by no later than May 2, 2022.
A lead plaintiff is a representative party who acts on behalf of
other class members in directing the litigation. Your share of any
recovery in the actions will not be affected by your decision of
whether to seek appointment as lead plaintiff. You may retain Lieff
Cabraser, or other attorneys, as your counsel in the action.
Ericsson investors who wish to learn more about the litigation and
how to seek appointment as lead plaintiff should click here, or
text or email investorinfo@lchb.com, or call Sharon M. Lee of Lieff
Cabraser at 1-800-541-7358.
Background on the Ericsson Securities Class Litigation
Ericsson, incorporated and headquartered in Sweden, provides
communication infrastructure, services, and software solutions.
Before the Class Period, Ericsson was fined hundreds of millions of
dollars by federal regulators for paying bribes to secure business.
Ericsson repeatedly assured investors thereafter that it had a
"zero tolerance" stance for bribery and was making significant
investments in related programs.
The action alleges that, throughout the Class Period, defendants
made false and/or misleading statements and/or failed to disclose
that: (i) the Company overstated the extent that it had reformed
its business practices to end the use of bribes to gain business in
other countries; (ii) Ericsson had given bribes to the Islamic
State in Iraq and Syria ("ISIS") to get access to certain routes
for transport in Iraq; and (iii) for this reason, the Company's
revenues derived from its operations in Iraq were substantially
derived from unlawful conduct and were therefore unsustainable.
On February 16, 2022, Ericsson's Chief Executive Officer told a
newspaper in Sweden that the Company may have made payments to ISIS
to gain access to certain transport routes in Iraq, disclosing that
Ericsson had identified "unusual expenses dating back to 2018" but
noting that it had not yet determined the final recipient of the
funds, though defendants could "see that it disappeared." On this
news, the price of Ericsson's American Depositary Shares ("ADS")
dropped $1.44 per share, or 11.57%, from a closing price of $12.45
on February 15, 2022, to close at $11.01 per ADS on February 16,
2022, on extremely heavy trading volume.
On Sunday, February 27, 2022, the International Consortium of
Investigative Journalists ("ICIJ"), citing a leaked internal
investigation, reported that Ericsson had made "tens of millions of
dollars in suspicious payments" over almost a decade in order to
maintain its business in Iraq. The ICIJ report further alleged that
"a spreadsheet lists company probes into possible bribery, money
laundering and embezzlement by employees in Angola, Azerbaijan,
Bahrain, Brazil, China, Croatia, Libya, Morocco, the United States
and South Africa," which "have not been previously disclosed." On
this news, the price of Ericsson ADS declined $0.84 per share, or
8.32%, from its previous closing price of $10.12 on February 25,
2022, to close at $9.28 per ADS on the next trading day, February
28, 2022, on heavy trading volume.
About Lieff Cabraser
Lieff Cabraser Heimann & Bernstein, LLP, with offices in San
Francisco, New York, Nashville, and Munich, is an
internationally-recognized law firm committed to advancing the
rights of investors and promoting corporate responsibility. The
National Law Journal has recognized Lieff Cabraser as one of the
nation's top plaintiffs' law firms for fourteen years. Law360 has
selected Lieff Cabraser as one of the Top 50 law firms nationwide
for litigation, highlighting our firm's "laser focus" and noting
that our firm routinely finds itself "facing off against some of
the largest and strongest defense law firms in the world."
Benchmark Litigation has named Lieff Cabraser one of the "Top 10
Plaintiffs' Firms in America."
For more information about Lieff Cabraser and the firm's
representation of investors, please visit
https://www.lieffcabraser.com/.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules. [GN]
TEVA PHARMACEUTICALS: Faces Anticompetition Suit for Copaxone Drug
------------------------------------------------------------------
NEW YORK STATE TEAMSTERS COUNCIL HEALTH AND HOSPITAL FUND, on
behalf of itself and all others situated v. TEVA PHARMACEUTICALS
INDUSTRIES LTD., TEVA PHARMACEUTICALS USA, INC., TEVA NEUROSCIENCE,
INC., and TEVA SALES & MARKETING, INC., Case No. 2:22-cv-01392
(D.N.J., March 15, 2022) arises out of Teva's anticompetitive
scheme to unlawfully thwart generic competition in the United
States and its territories for its prescription drug Copaxone.
The active ingredient in Copaxone is glatiramer acetate ("GA"), and
it is an injectable medication approved for the treatment of
patients with relapsing forms of multiple sclerosis ("MS"),
including for the reduction of the frequency of relapses in
relapsing-remitting MS ("RRMS"). Copaxone is Teva's best-selling
product, generating more than $30 billion in revenue in the United
States, including $3.5 billion in 2016 alone.
Since Teva began selling Copaxone in 1997, it has been able to
raise the price uninhibited for decades. The annual cost of
Copaxone has skyrocketed from less than $10,000 for a yearly course
in 1997 to nearly $70,000 per year in 2020. Following a
multi-pronged strategy to delay generic competition, including
through litigation and shifting the market from its 20 mg product
to a 40 mg product, Teva continued its scheme both before and after
Mylan Pharmaceuticals and Sandoz introduced a generic version of
Copaxone 40 mg by employing multiple tactics. First, Teva duped
health plans with an anticompetitive consumer copay "coupon" scheme
that circumvented plan members' cost-sharing obligations and helped
artificially increase and protect brand Copaxone's high prices.
Then, as part of a scheme to foreclose uptake of generic Copaxone,
Teva entered into multi-pronged "House Brand" agreements with
intermediaries, including Pharmacy Benefit Managers ("PBMs") and
PBM-owned specialty pharmacies, to block generics by (i) refusing
to pay any rebates to the PBMs unless generic Copaxone was excluded
from formularies, and (ii) reaching agreements with PBM-owned
specialty pharmacies to dispense branded Copaxone even if a
prescription was written specifically for generic Copaxone. At the
same time, Teva engaged in a misinformation campaign, widely
spreading false and misleading statements to convince prescribers
and patients that generic Copaxone was inferior to Copaxone and/or
that generic Copaxone manufacturers did not offer co-pay assistance
and training and support services. These false marketing statements
convinced a substantial percentage of healthcare providers to write
"dispense as written" or "DAW" prescriptions, circumventing
automatic substitution laws and ensuring that they would be filled
only with branded Copaxone even though less expensive generic
alternatives were available, says the suit.
Absent the Defendants' alleged unlawful conduct, generic
manufacturers of Copaxone would have been able to fairly compete
with Teva in a full and timely manner, and Plaintiff and Class
members, which includes "third-party payors" such as health
insurers and self-funded health plans, would have substituted
lower-priced generic Copaxone for nearly all of their Copaxone
purchases and paid lower prices for their branded Copaxone
purchases.
The Plaintiff and Class members would have purchased lower-priced
Copaxone in substantially larger quantities. Instead, the
Defendants' unlawful conduct allowed Teva to reap substantial
amounts in ill-gotten gains and prevented uptake of the 40mg
generic GA versions which has cost Plaintiff and Class members
hundreds of millions of dollars in overcharge damages. Plaintiff
and the proposed class seek to recover damages, including treble
damages, under the state antitrust and consumer protection laws
enumerated below and declaratory and injunctive relief pursuant to
Section 16 of the Clayton Act.
NYST is a self-insured health plan with a principal place of
business in Syracuse, New York. During the Class Period, as defined
below, NYST purchased, paid, and/or provided reimbursement for some
or all of the purchase price of Copaxone and its AP-rated generic
equivalent for personal and/or household use from pharmacies
located in and/or on behalf of members located in at least New
York.
Teva is an Israeli corporation with a principal place of business
at 5 Basel St., Petach Tikva, Israel. Teva Ltd. subsidiaries,
including Teva Pharmaceuticals USA, Inc., Teva Neuroscience, Inc.
and Teva Sales & Marketing, Inc., which do business in the United
States. Teva Ltd. has promoted itself as the largest seller of
generic drugs in the United States with billions of dollars in
revenue.[BN]
The Plaintiff is represented by:
Christopher A. Seeger, Esq.
SEEGER WEISS LLP
55Challenger Road, 6 th Floor
Ridgefield Park, NJ 07660
Telephone: (973) 639-9100
Facsimile: (973) 679-8656
E-mail: cseeger@seegerweiss.com
- and -
Daniel E. Gustafson, Esq.
Michelle J. Looby, Esq.
Ling S. Wang, Esq.
GUSTAFSON GLUEK PLLC
Canadian Pacific Plaza
120 South Sixth Street, Suite 2600
Minneapolis, MN 55402
Telephone: (612) 333-8844
Facsimile: (612) 339-6622
E-mail: dgustafson@gustafsongluek.com
mlooby@gustafsongluek.com
lwang@gustafsongluek.com
- and -
Adam J. Zapala, Esq.
Elizabeth T. Castillo, Esq.
James Dallal, Esq.
COTCHETT, PITRE & MCCARTHY, LLP
840 Malcolm Road, Suite 200
Burlingame, CA 94010
Telephone: (650) 697-6000
Facsimile: (650) 697-0577
E-mail: azapala@cpmlegal.com
ecastillo@cpmlegal.com
jdallal@cpmlegal.com
- and -
Alexander E. Barnett, Esq.
COTCHETT, PITRE & MCCARTHY, LLP
40 Worth Street, Suite 602
New York, NY 10013
Telephone: (212) 201-6820
Facsimile: (917) 398-7753
E-mail: abarnett@cpmlegal.com
- and -
Arthur N. Bailey, Esq.
RUPP BAASE PFALZGRA CUNNINGHAM LLC
111 West 2 nd Street, Suite 1100
Jamestown, NY 14701
Telephone: (716) 664-2967
E-mail: bailey@ruppbaase.com
TOYOTA MOTOR: Faces Class Action Over Unsafe "Fake" Taxis
---------------------------------------------------------
Martin Welz at biznews.com reports that an application to launch a
class action aimed at recovering billions of rands in damages
suffered by thousands of ignorant taxi owners who were sold unsafe
"fake" Toyota Quantum Sesfikile taxis, was issued out of the South
Gauteng high court yesterday.
Another class action application seeking more billions in damages
on behalf of the victims of the many lethal road accidents that
resulted, is in preparation and likely to follow shortly.
Both actions have been triggered by a damning report issued by the
Public Protector in March 2019.
The application issued, is being served on no less than 74
defendants. Amongst the better known are Toyota South Africa
Motors, Wesbank, Absa, Standard Bank, Nedbank, SA Taxi Finance, NTT
Motor Investments, Halfway Toyota Group, Market Toyota Group,
McCarthy Group, Imperial Group, Barlow World Automotive and
Logistics, I&S Motors and P Petersens Taxi World.
The pro-forma applicants are Peter Mashala and Moses Nkosi, both
represented by attorney Zain Lundell.
Sponsors of the case are prepared for the litigation to cost as
much as R40-million. Co-ordinating the action is attorney Richard
Spoor, famous for having successfully conducted previous class
actions on this scale.
(Genuine Quantum taxis are robustly designed to carry up to 16
passengers. The similar shaped but more lightly - and cheaply -
constructed Toyota panel van may carry only three passengers and is
registered and licenced under a different regulatory code.)
Noseweek's source, former Absa banker Hennie de Beer, had evidence
of no fewer than 165 major road accidents involving illegal Quantum
panel-van taxis, when he was blocked from accessing the website on
which the accidents were recorded. Those accidents had resulted in
as many as 350 deaths. (Research indicated that the average death
rate was 2.4 people killed in each such accident)
The purpose of the government's Recapitalisation Programme
introduced in 2004 was to replace old, run-down and unsafe taxis
with a new standardised fleet of "safe, effective, reliable,
affordable and accessible" taxis. The state paid taxi owners a
R50,000 scrapping fee for their old vehicles - money they could use
as a deposit for a new, safer one.
Stock shortages of the new purpose-built taxis however created an
opportunity for unscrupulous manufacturers, importers and builders
(MIBs) to illegally convert cheaper but similar-looking Toyota
panel vans into taxis for huge profit.
Illegal conversions are fitted with up to 16 seats that are bolted
to the thin floor, not the chassis of he vehicle. Seatbelts are
only connected to the seats and not the vehicle structure. The roof
pillars are not reinforced and the windows are cut into the side
panels, further weakening the structure.
These conversions were then opportunistically financed without
question by the major banks and specialist taxi financiers.
Statistics from the National Association of Automobile
Manufacturers of SA (Naamsa) show an increase of almost 85% in
sales of Quantum panel vans from 2005 to 2007.
The banks subsequently refused to assist taxi owners who had
unwittingly bought converted panel vans with bank finance when
their taxi licences were withdrawn, but instead repossessed their
vehicles, only to refinance them to other unsuspecting taxi
owners.
Aware that the illegal conversions broke the law, Toyota South
Africa, while warning their dealers about this, nevertheless told
them how they might get around the problem and continue selling
vans for conversion to taxis while avoiding liability.
The immense regulatory failure of oversight would have gone
unnoticed or been swept under the carpet were it not for De Beer's
perseverance.
De Beer, who was once ABSA's national manager for taxi financing,
resigned in 2009 because he could no longer ignore the fact that
the panel-van conversions were putting people's lives at risk - and
the banks' and taxi financiers' outright refusal to assist any of
the affected taxi owners they had financed when their vehicles were
subsequently taken off the road.
In 2012 De Beer took his evidence to the then Public Protector
Thuli Madonsela, who started the investigation and handed it over
to her successor, Busisiwe Mkhwebane.
De Beer had claimed that structurally defective and non-homologised
Toyota panel vans were modified by the MIBs (manufacturer,
importer, builder) and converted to taxis, despite the fact they
were not safe for that purpose nor did they meet safety
regulations, national standards and requirements. They should never
have been permitted to operate as taxis, he said.
At the end of March 2019 De Beer was vindicated when the Public
Protector Mkhwebane released her report, in which she called for
those implicated to be prosecuted. (That date explains why summons
for a class action was issued - to meet the three-year prescription
deadline.)
The Protector found that 2,353 illegally converted panel vans were
operating as taxis on South Africa's roads.
(That was an underestimate. The Special Investigating Unit (SIU)
found that 6,450 illegally converted Quantum panel-van taxis were
registered on the eNaTIS system.)
The Protector's report made damning findings against the Department
of Transport (DoT), Toyota South Africa Motors (TSAM), financial
institutions and the National Regulator for Compulsory
Specifications (NRCS).
A case history
Bennet Hlungwane (Police case number 223/10/2013) was the owner and
driver of an illegal conversion. He was identified as a first-time
taxi owner by SA Taxi Finance, and supplied with an SA Taxi Finance
repossession through I&S Motors in Vereeniging and given a taxi
permit for R5,000.
The vehicle was grossly overpriced and Hlungwane was fully
exploited by the bank and the dealer as an unsophisticated person.
Hlungwane twice complained in person to the motor dealer that there
was something wrong with the vehicle's road holding but was chased
away.
Eight months later the vehicle rolled while travelling at a low
speed, killing a child and severely injuring five passengers.
As a result Hlungwane lost everything, is now unemployed and
suffers emotionally. [GN]
TREEHOUSE FOODS: Bartelt Securities Suit Hearing Set for June 27
----------------------------------------------------------------
TreeHouse Foods, Inc. disclosed in its Form 10-K Report for the
fiscal year ended December 31, 2021, filed with the Securities and
Exchange Commission on February 15, 2022, that the company, as
nominal defendant, and certain of its directors, officers and
former directors and officers are parties to Bartelt v. Reed, et
al., Case No. 1:19-cv-00835 (filed Feb. 8, 2019 in the United
States District Court for the Northern District of Illinois),
asserting state law claims for breach of fiduciary duty, unjust
enrichment, abuse of control, gross mismanagement, and corporate
waste, as well as violations of Section 14 of the Securities
Exchange Act of 1934.
The parties entered stipulations deferring all of the derivative
cases and are to appear for a status conference or hearing on June
27, 2022.
TreeHouse is a leading manufacturer and distributor of private
label foods and beverages in North America operating in 29 product
categories across with approximately 40 production facilities
across North America and Italy.
TREEHOUSE FOODS: Faces Lavin Securities Suit
--------------------------------------------
TreeHouse Foods, Inc. disclosed in its Form 10-K Report for the
fiscal year ended December 31, 2021, filed with the Securities and
Exchange Commission on February 15, 2022, that the company, as
nominal defendant, and certain of its directors, officers and
former directors and officers are parties to Lavin v. Reed, et al.,
Case No. 17-cv-01014 (filed Feb. 7, 2017 in the United States
District Court for the Northern District of Illinois), asserting
state law claims for breach of fiduciary duty, unjust enrichment,
abuse of control, gross mismanagement, and corporate waste.
The parties entered stipulations deferring all of the derivative
cases and are to appear for a status conference or hearing on June
27, 2022.
TreeHouse is a leading manufacturer and distributor of private
label foods and beverages in North America operating in 29 product
categories across with approximately 40 production facilities
across North America and Italy.
TREEHOUSE FOODS: Faces Shareholder Suit in Illinois Court
---------------------------------------------------------
TreeHouse Foods, Inc. disclosed in its Form 10-K Report for the
fiscal year ended December 31, 2021, filed with the Securities and
Exchange Commission on February 15, 2022, that the company, as
nominal defendant, and certain of its directors, officers and
former directors and officers are parties to Wells v. Reed, et al.,
Case No. 2016-CH-16359 (filed Dec. 22, 2016 in the Circuit Court of
Cook County, Illinois), asserting state law claims for breach of
fiduciary duty, unjust enrichment and corporate waste.
Complaints alleges that TreeHouse, under the authority and control
of the individual defendants made certain false and misleading
statements regarding the company's business, operations, and future
prospects and failed to disclose that the company's private label
business was underperforming, that the company's "Flagstone"
business was underperforming, that the company's acquisition
strategy was underperforming, that the company had overstated its
full-year 2016 guidance and TreeHouse's statements lacked
reasonable basis. The complaints allege, among other things, that
these actions artificially inflated the market price of TreeHouse
common stock and resulted in harm to the company.
TreeHouse is a leading manufacturer and distributor of private
label foods and beverages in North America operating in 29 product
categories across with approximately 40 production facilities
across North America and Italy.
TREEHOUSE FOODS: Hearing on Employees' Fund Suit Set for June 27
----------------------------------------------------------------
TreeHouse Foods, Inc. disclosed in its Form 10-K Report for the
fiscal year ended December 31, 2021, filed with the Securities and
Exchange Commission on February 15, 2022, that the company, as
nominal defendant, and certain of its directors, officers and
former directors and officers are parties to case docketed "City of
Ann Arbor Employees' Retirement System v. Reed, et al.," Case No.
2019-CH-06753 (filed June 3, 2019 in the Circuit Court of Cook
County, Illinois), asserting claims breach of fiduciary duty,
aiding and abetting breaches of fiduciary duty and contribution and
indemnification from the individual defendants for losses incurred
by the Company.
The parties entered stipulations deferring all of the derivative
cases and are to appear for a status conference or hearing on June
27, 2022.
TreeHouse is a leading manufacturer and distributor of private
label foods and beverages in North America operating in 29 product
categories across with approximately 40 production facilities
across North America and Italy.
TREEHOUSE FOODS: Illinois Court Dismisses PERSM Shareholder Suit
----------------------------------------------------------------
TreeHouse Foods, Inc. disclosed in its Form 10-K Report for the
fiscal year ended December 31, 2021, filed with the Securities and
Exchange Commission on February 15, 2022, that on November 17,
2021, the United States District Court for the Northern District of
Illinois granted final approval of settlement and entered final
judgment dismissing the case docketed "Public Employees' Retirement
Systems of Mississippi v. TreeHouse Foods, Inc., et al.," Case No.
1:16-cv-10632 filed November 16, 2016.
Said case was brought on behalf of a class of all purchasers of
TreeHouse common stock from January 20, 2016 through and including
November 2, 2016. It asserted claims under Sections 10(b) and 20(a)
of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder and sought, among other things, damages and costs and
expenses based on essentially the same facts described above.
Following denial of defendants' motion to dismiss, grant of
plaintiff's motion to certify a class, limited discovery, and
extended mediator-facilitated negotiations, on July 14, 2021, the
parties filed a stipulation of settlement to resolve the case for a
cash payment of $27.0 million (funded by D&O insurance) in exchange
for dismissal with prejudice of the class claims and full releases.
After briefing, preliminary approval, notice and a hearing, on
November 17, 2021, the Court granted final approval of the
settlement and entered final judgment dismissing the case with
prejudice on a class-wide basis. On November 18, 2021, the court
granted lead counsel's request for attorneys' fees and expenses and
approved a plan of allocation.
TreeHouse is a leading manufacturer and distributor of private
label foods and beverages in North America operating in 29 product
categories across with approximately 40 production facilities
across North America and Italy.
TRIMFIT GLOBAL: Ortega Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed Trimfit Global Inc. The case
is styled as Juan Ortega, individually, and on behalf of all others
similarly situated v. Trimfit Global Inc., Case No. 1:22-cv-02157
(S.D.N.Y., March 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Trimfit, Inc. -- https://trimfit.com/ -- provides apparel. The
Company offers shoes, t-shirts, pant, and other related
products.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
TRINET GROUP: Sued by Employee Fund over Breach of Fiduciary Duty
-----------------------------------------------------------------
Trinet Group, Inc. disclosed in its Form 10-K Report for the fiscal
year ended December 31 2021, filed with the Securities and Exchange
Commission on February 14, 2022, that the company's subsidiaries
were named defendant in a class action lawsuit alleging that the
defendants violated certain fiduciary obligations.
September 29, 2020, a class action was filed in the United States
District Court for the Middle District of Florida against the
directors of certain TriNet subsidiaries and other TriNet employees
on behalf of participants in two retirement plans available to
TriNet's eligible worksite employees, the TriNet 401(k) Plan and
the TriNet Select 401(k) Plan.
The complaint is similar to claims recently brought against a
number of employers including Professional Employer Organization
and generally alleges that the defendants violated certain
fiduciary obligations to Plan participants under the Employee
Retirement Income Security Act of 1974 with respect to overseeing
plan investment and recordkeeping fees.
TriNet is a provider of HR expertise, payroll services, employee
benefits and employment risk mitigation services based in
California.
UNILEVER UNITED: Hite Sues Over Mislabeled Mayonnaise Dressing
--------------------------------------------------------------
Laura Hite, individually and on behalf of all others similarly
situated v. Unilever United States, Inc., Case No. 7:22-cv-02188-VB
(S.D.N.Y., March 16, 2022) sues over false or misleading
representations of mayonnaise dressing labeled as made "With Olive
Oil," with pictures of two olives and leaves on branches, and green
packaging, consumers expect it contains a significant, non-de
minimis amount of olive oil, in relative and absolute amounts to
all oils used.
Unilever manufactures, labels, markets, and sells mayonnaise
dressing promoted as being made "With Olive Oil," under the
Hellmann’s brand (the "Product").
According to the complaint, the ingredient list reveals a smaller
than expected amount of olive oil, in absolute and relative terms,
and that the most predominant oil is "Soybean Oil."
Mayonnaise or "mayo," is a thick, creamy sauce commonly used on
sandwiches and composed salads, and is the base for other sauces,
such as tartar sauce and Russian dressing. Mayonnaise and its
reduced-fat variations are defined by a standard of identity as an
emulsion of vegetable oils, eggs, and acids. Vegetable oil
traditionally refers to cooking oils such as corn oil, canola oil,
palm oil, safflower oil, sesame oil, soybean oil and sunflower
oil.
The Defendant allegedly markets the product to the increasing
numbers of Americans seeking to consume traditional foods but with
ingredients known for providing health benefits, like olive oil.
Reasonable consumers must and do rely on a company to honestly
identify and describe the components, attributes, and features of a
product, relative to itself and other comparable products or
alternatives. The value of the product that Plaintiff purchased was
materially less than its value as represented by Defendant, says
the suit.
The Defendant sold more of the product and at higher prices than it
would have in the absence of this misconduct, resulting in
additional profits at the expense of consumers. Had Plaintiff and
proposed class members known the truth, they would not have bought
the product or would have paid less for it, the suit added.
The Plaintiff bought the product because she expected it was made
with a significant and/or predominant amount of olive oil, which
was desired to provide health benefits, as opposed to containing
mainly soyabean oil, which lacked these benefits because that is
what the representations said and implied.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Rd Ste 412
Great Neck NY 11021
Telephone: (516) 268-7080
E-mail: spencer@spencersheehan.com
UNILEVER UNITED: N.D. Illinois Dismisses Castillo Consumer Suit
---------------------------------------------------------------
In the case, EMILY CASTILLO, SHANNON KEENER, ROBYN LIPETZ,
ALEXANDRA ARROYO, GUSTAVO FLORES, NANCY JONES, ZAMARA COLON, KRISTI
KELLER, HOLLIE PARRISH, and CORIN FIONDELLA, on behalf of
themselves and all others similarly situated, Plaintiffs v.
UNILEVER UNITED STATES, INC., and CONOPCO, INC., Defendants, Case
No. 20 C 6786 (N.D. Ill.), Judge Gary Feinerman of the U.S.
District Court for the Northern District of Illinois, Eastern
Division, granted Unilever's motion to dismiss.
Unilever moved under Civil Rules 12(b)(1) and 12(b)(6) to dismiss
for lack of standing and failure to state a claim, respectively.
I. Background
Emily Castillo and several other individuals bring the putative
class action under the diversity jurisdiction against Unilever
United States, Inc. and Conopco, Inc. (together, "Unilever"),
alleging that certain Unilever hair products contained an unsafe
chemical with undisclosed risks.
Unilever designs, formulates, produces, manufactures, sells, and
distributes TRESemme brand hair products. Certain TRESemme shampoos
and conditioners contain DMDM hydantoin, a formaldehyde-releasing
preservative, as an ingredient. People allergic to DMDM hydantoin
can experience adverse reactions when exposed to it. TRESemme
products containing DMDM hydantoin thus are "dangerous," "unfit for
sale," "toxic," and "defective." Despite its knowledge of that
ingredient's risks, Unilever continued to use it and misrepresented
that its DMDM hydantoin-containing products were safe and
effective. Unilever further represented that its products safely
smoothed, nourished, cleansed, and repaired hair.
The Plaintiffs are consumers who purchased and used TRESemme
products containing DMDM hydantoin in California, Florida,
Illinois, Michigan, New Jersey, New York, Ohio, Pennsylvania, and
Texas. They allege that, had they been aware of the risks of DMDM
hydantoin, they would not have purchased the products or would have
paid less for them. The Plaintiffs do not allege that they are
allergic to DMDM hydantoin or that they suffered adverse effects
from using products containing that ingredient. Nor do they allege
that the TRESemme products they used failed to smooth, nourish,
cleanse, or repair their hair. Instead, they allege that they "did
not receive the benefit of their bargain" because those products
contained DMDM hydantoin and thus "were unsafe, caused scalp
irritation and hair loss, and did not safely smooth, nourish,
cleanse, and/or repair hair."
Before the Plaintiffs filed the operative complaint, Unilever
ceased using DMDM hydantoin in its TRESemme products and now uses
preservatives that do not release formaldehyde. Still, Unilever has
not recalled its DMDM hydantoin-containing TRESemme products that
it previously distributed.
II. Discussion
The complaint purports to bring state law claims for statutory and
common law fraud, breach of express and implied warranty, and
unjust enrichment. In addition to monetary relief, the Plaintiff
seek an injunction forbidding Unilever from deceiving consumers
about the risks of DMDM hydantoin, requiring it to disclose those
risks, and mandating that it recall TRESemme products with DMDM
hydantoin.
A. Article III Standing
Unilever contends that the complaint fails to plead facts showing
that the Plaintiffs have Article III standing for either monetary
or injunctive relief. Judge Feinerman declines the Plaintiffs'
suggestion to wait until after class certification to address
standing. Jurisdiction over a putative class action depends on the
named plaintiffs' standing. The Plaintiffs' standing therefore is
"an antecedent legal issue" that must be resolved at the outset of
the suit.
1. Monetary Relief
The Plaintiffs have Article III standing to seek monetary relief.
Although they experienced no allergic reaction from the DMDM
hydantoin in TRESemme products, the Plaintiffs do allege financial
injuries. Specifically, they claim that they purchased TRESemme
products worth less than what they paid because the products
contained DMDM hydantoin, and that they received something
different -- and less valuable -- than what they were promised
because the products' labels misleadingly touted the products'
benefits while omitting DMDM hydantoin's risks.
Unilever insists that DMDM hydantoin is safe. Maybe so, but at the
pleading stage, Judge Feinerman must accept the Plaintiffs'
allegations that DMDM hydantoin, and thus the TRESemme products
containing that ingredient, are unsafe. Accordingly, the Plaintiffs
allege a financial injury in fact -- one that is concrete and
particularized -- sufficient to predicate standing to pursue a
monetary remedy.
2. Injunctive Relief
Unlike with damages, a past injury alone is insufficient to
establish standing for purposes of prospective injunctive relief.
Rather, a plaintiff seeking injunctive relief must "face a real and
immediate threat of future injury."
Judge Feinerman opines tha tthe Plaintiffs fail to show that they
face such a risk. Because the Plaintiffs are aware of the presence
and potential effects of DMDM hydantoin in TRESemme shampoos and
conditioners, they face no future risks from those products. The
Plaintiffs therefore allege no real and immediate threat of future
injury. And, because the Plaintiffs fail to plausibly allege a risk
of an imminent injury to themselves, they lack standing to seek
injunctive relief for either themselves or unnamed class members.
The Plaintiffs argue that if they lack standing to pursue
injunctive relief, then no one will have standing, thereby
undermining the efficacy of consumer protection laws. That argument
fails for at least two reasons, Judge Feinerman opines. As initial
matter, there may be other judicial avenues for pursuing injunctive
relief against Unilever. In any event, even if no one has standing
to seek an injunction, the Supreme Court "has long rejected that
kind of argument for Article III standing."
Accordingly, the Plaintiffs' claims are dismissed for lack of
subject matter jurisdiction to the extent that they seek injunctive
relief.
B. Merits
1. Fraud and Unjust Enrichment
Turning to the merits, the Plaintiffs' statutory and common law
fraud claims fail for lack of injury, Judge Feinerman holds. Given
the failure of the Plaintiffs' fraud claims, their unjust
enrichment claims necessarily fail as well. The complaint's legal
conclusion that the Plaintiffs were deprived of the benefit of
their bargain is not entitled to the assumption of truth afforded
factual allegations on a Rule 12(b)(6) motion. And with that legal
conclusion set aside, the complaint does not allege facts
suggesting that the Plaintiffs suffered any actual injury or damage
attributable to Unilever's alleged fraud.
2. Breach of Warranty
The same result holds for the Plaintiffs' breach of express and
implied warranty claims. Although resolution of some warranty
issues may require applying a particular State's law, the parties
do not suggest that compliance with an express warranty (for
express warranty claims) or injury (for implied warranty claims)
are among them. So, Judge Feinerman's analysis of those elements of
the Plaintiffs' warranty claims is uniform regardless of which
State's law governs.
The Plaintiffs allege that Unilever warranted that its TRESemme
products "contain a formula intended to smooth hair, add softness
and shine, and prevent frizzing and tangling; and that the Products
`deeply nourish,' 'gently cleanse,' and 'repair hair.'" Even
assuming those statements qualify as express warranties, the
complaint does not allege that the Plaintiffs themselves (as
opposed to other purchasers) received a product that failed to
perform according to those specifications. It follows that the
Plaintiffs do not state a breach of express warranty claim.
III. Conclusion
Unilever's motion to dismiss is granted. The Plaintiffs' claims are
dismissed for want of subject matter jurisdiction insofar as they
seek injunctive relief. The Plaintiffs' claims are dismissed on the
merits without prejudice to repleading insofar as they seek
monetary relief.
The Plaintiffs have until March 30, 2022, to file an amended
consolidated complaint. If they do not replead, the dismissal
without prejudice of their claims for damages relief will convert
automatically to a with-prejudice dismissal. If the Plaintiffs
replead, the Defendants will file a responsive pleading by April
20, 2022.
A full-text copy of the Court's March 9, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/4t2kvpm2 from
Leagle.com.
WHOLE FOODS: Fails to Pay Proper Wages, O'Connor Suit Alleges
-------------------------------------------------------------
PATRICIA O'CONNOR and STEVEN RODRIGUEZ, individually and on behalf
of all others similarly situated, Plaintiff v. WHOLE FOODS MARKET
CALIFORNIA, INC., Defendant, Case No. 22CV008620 (Cal. Super.,
Alameda Cty., Mar. 18, 2022), seeks to recover from the Defendants
unpaid sick wages, unpaid wages and unpaid overtime, interest,
liquidated damages, attorneys' fees, and costs under the California
Labor Code.
Plaintiffs were employed by Defendants as staff.
Whole Foods Market California, Inc. provides food services. The
Company offers meat, sea food, milk, eggs, olive oil, butter,
fruits, vegetables, cheese, and other related products. Whole Foods
Market operates Worldwide. [BN]
The Plaintiff is represented by:
Larry W. Lee, Esq.
Simon L. Yang, Esq.
DIVERSITY LAW GROUP, P.C.
South Figueroa Street, Suite 1250
Los Angeles, CA 90071
Telephone: (213) 488-6555
Facsimile: (213) 488-6554
Email: lwlee@diversitylaw.com
sly@diversitylaw.com
Asbestos Litigation
ASBESTOS UPDATE: APi Group Faces Personal Injury Lawsuits
---------------------------------------------------------
APi Group Corporation's certain of its businesses, along with
numerous other third parties, are named as defendants in personal
injury lawsuits based on alleged exposure to asbestos containing
materials, according to the Company's Form 10-K filing with the
U.S. Securities and Exchange Commission.
These cases typically involve product liability claims based
primarily on allegations of sale, distribution, installation or use
of industrial products that either contained asbestos or were used
with asbestos containing components. We cannot predict with
certainty the extent to which we will be successful in litigating
or otherwise resolving lawsuits in the future and we continue to
evaluate different strategies related to asbestos claims filed
against us including entity restructuring and judicial relief.
Unfavorable rulings, judgments or settlement terms could have a
material adverse impact on our business and consolidated financial
condition, results of operations and cash flows."
A full-text copy of the Form 10-K is available at
https://bit.ly/3JwEmhu
ASBESTOS UPDATE: CarParts.com Defends Product Liability Claims
--------------------------------------------------------------
CarParts.com, Inc.'s wholly-owned subsidiary, Automotive Specialty
Accessories and Parts, Inc. and its wholly-owned subsidiary Whitney
Automotive Group, Inc. ("WAG"), are named defendants in several
lawsuits involving claims for damages caused by installation of
brakes during the late 1960's and early 1970's that contained
asbestos, according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission.
"WAG marketed certain brakes, but did not manufacture any brakes.
WAG maintains liability insurance coverage to protect its and the
Company's assets from losses arising from the litigation and
coverage is provided on an occurrence rather than a claims made
basis, and the Company is not expected to incur significant
out-of-pocket costs in connection with this matter that would be
material to its consolidated financial statements."
A full-text copy of the Form 10-K is available at
https://bit.ly/3iJAGxf
ASBESTOS UPDATE: Forum Energy Still Faces Exposure Claims
---------------------------------------------------------
Forum Energy Technologies, Inc.'s one of its subsidiaries, has been
and continues to be named as a defendant in asbestos related
product liability claims for alleged exposure to asbestos used in
valves, according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission.
The Company states, "These lawsuits are typically filed on behalf
of plaintiffs who allege exposure to asbestos, against numerous
defendants, often forty or more, who are alleged to have
manufactured or distributed products containing asbestos. The
injuries alleged by plaintiffs in these cases range from
mesothelioma and other cancers to asbestosis. The earliest claims
against our subsidiary were filed in New Jersey in 1998, and our
subsidiary currently has active cases in Missouri, New Jersey, New
York, Illinois and Delaware. These complaints do not typically
include requests for a specific amount of damages. Our subsidiary
acquired the trademark for the product line in question in 1985. To
date, most of the claims against our subsidiary alleging illnesses
due to asbestos have generally been based on products manufactured
by the previous owner prior to 1985 that are alleged to have
contained asbestos. Many claimants alleging illnesses due to
asbestos sue on the basis of exposure prior to 1985, as by that
date the hazards of asbestos exposure were well known and asbestos
had begun to fall into disuse. Our subsidiary has been successful
in obtaining dismissals in most lawsuits without any cash
contribution including because the "successor liability" law in
most states does not hold a purchaser in good faith liable for the
actions of the seller prior to the acquisition date unless the
purchaser contractually assumed the liabilities, which our
subsidiary did not. There are exceptions to the successor liability
doctrine in many states, so there are no assurances that our
subsidiary will not be found liable for the actions of its
predecessor. The law in other states on so called "successor
liability" may be different or ambiguous in this regard, and could
also expose our subsidiary to liability. Our subsidiary could also
be found liable should a trier of fact reject our subsidiary's
position that it is not responsible for the alleged asbestos
injuries, such as in a case where a plaintiff alleges post-1985
exposure. To date, asbestos claims have not had a material adverse
effect on our business, financial condition, results of operations,
or cash flow, as our annual out-of-pocket costs over the last five
years has been less than $200,000. There were fewer than 25 new
cases filed against our subsidiary in each of last two years, and a
significant number of existing cases were dismissed, settled or
otherwise disposed of over the last year. We currently have fewer
than 150 lawsuits pending against this subsidiary. Our subsidiary
has over $17 million in face amount of insurance per occurrence and
over $23 million of aggregate primary insurance coverage. In
addition, our subsidiary has over $950 million in face amount of
excess coverage applicable to the claims. There can be no guarantee
that all of this can be collected due to policy terms and
conditions and insurer insolvencies in the past or in the future.
In January 2011, we entered into an agreement with seven of our
primary insurers under which they have agreed to pay 80% of the
costs of handling and settling each asbestos claim against the
affected subsidiary. The insurers' portion of the settlements is
funded by our primary insurance limits, which are eroded only by
settlements and not legal fees. Approximately $2.0 million in
settlements has been paid by insurers and our subsidiary to date,
with approximately $40,000 paid over the course of the last two
years. Our subsidiary and the subscribing insurers have the right
to withdraw from this agreement, but to date, no party has
exercised this right or expressed an intent to do so."
A full-text copy of the Form 10-K is available at
https://bit.ly/36CwE6O
ASBESTOS UPDATE: GMS Inc. Defends 1,030 PI Lawsuits as of Jan. 31
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GMS Inc., since 2002 and as of January 31, 2022, is a defendant of
approximately 1,030 asbestos-related personal injury lawsuits and
vigorously defend against them, according to the Company's Form
10-Q filing with the U.S. Securities and Exchange Commission.
The Company states, "Of these, 987 have been dismissed without any
payment by us, 33 are pending and only 10 have been settled, which
settlements have not materially impacted our financial condition or
operating results.
"The building materials industry has been subject to personal
injury and property damage claims arising from alleged exposure to
raw materials contained in building products as well as claims for
incidents of catastrophic loss, such as building fires. As a
distributor of building materials, we face an inherent risk of
exposure to product liability claims in the event that the use of
the products we have distributed in the past or may in the future
distribute is alleged to have resulted in economic loss, personal
injury or property damage or violated environmental, health or
safety or other laws. Such product liability claims have included
and may in the future include allegations of defects in
manufacturing, defects in design, a failure to warn of dangers
inherent in the product, negligence, strict liability or a breach
of warranties. In particular, certain of our subsidiaries have been
the subject of claims related to alleged exposure to
asbestos-containing products they distributed prior to 1979."
A full-text copy of the Form 10-Q is available at
https://bit.ly/3IxqGS7
ASBESTOS UPDATE: Intricon Corp. Faces Product Liability Lawsuits
----------------------------------------------------------------
Intricon Corporation is a defendant along with a number of other
parties in lawsuits alleging that plaintiffs have or may have
contracted asbestos-related diseases as a result of exposure to
asbestos products or equipment containing asbestos sold by one or
more named defendants, according to the Company's Form 10-K filing
with the U.S. Securities and Exchange Commission.
The Company states, "These lawsuits relate to the discontinued heat
technologies segment which was sold in March 2005. Due to the
non-informative nature of the complaints, the Company does not know
whether any of the complaints state valid claims against the
Company. Certain insurance carriers have informed the Company that
the primary policies for the period August 1, 1970-1978 have been
exhausted and that the carriers will no longer provide defense and
insurance coverage under those policies. However, the Company has
other primary and excess insurance policies that the Company
believes afford coverage for later years. Some of these other
primary insurers have accepted defense and insurance coverage for
these suits, or have accepted the tenders but asserted a
reservation of rights, or have advised the Company that they need
to investigate further. In addition, some of the primary and excess
insurers have gone out of business, and thus coverage is not
available. There are also primary policies for years earlier than
1970 that were purchased by the Company, and coverage under those
policies will be investigated. Because settlement payments are
applied to all years a litigant was deemed to have been exposed to
asbestos, the Company believes that it will have funds available
for defense and insurance coverage under the non-exhausted primary
and excess insurance policies. However, unlike the older policies,
the more recent policies have deductible amounts for defense and
settlements costs that the Company will be required to pay;
accordingly, the Company expects that its litigation costs will
increase in the future. Further, most of the policies covering
later years (approximately 1984 and thereafter) have exclusions for
any asbestos products or operations, and thus do not provide
insurance coverage for asbestos-related lawsuits. The Company does
not believe that the asserted exhaustion of some of the primary
insurance coverage for the 1970-1978 period will have a material
adverse effect on its financial condition, liquidity, or results of
operations. Management believes that the number of insurance
carriers involved in the defense of the suits, and the significant
number of policy years and policy limits under which these
insurance carriers are insuring the Company, make the ultimate
disposition of these lawsuits not material to the Company's
consolidated financial position or results of operations. As of
December 31, 2021, we recorded $129 and $709 within other accrued
liabilities and other long-term liabilities, respectively, within
our Consolidated Balance Sheet for estimated future claims. An
insurance receivable of $129 and $709 was recorded within other
current assets and other assets, net, respectively, within our
Consolidated Balance Sheet as of December 31, 2021 for estimated
insurance recoveries."
A full-text copy of the Form 10-K is available at
https://bit.ly/3tuc816
ASBESTOS UPDATE: Liggett Group Faces 16 Multi-Defendant PI Cases
----------------------------------------------------------------
Vector Group Ltd.'s subsidiary, Liggett Group LLC, was a defendant
in 16 multi-defendant personal injury cases in Maryland alleging
claims arising from asbestos and tobacco exposure ("synergy
cases"), according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission.
The Company states, "In July 2016, the Court of Appeals (Maryland's
highest court) ruled that joinder of tobacco and asbestos cases may
be possible in certain circumstances, but plaintiffs must
demonstrate at the trial court level how such cases may be joined
while providing appropriate safeguards to prevent embarrassment,
delay, expense or prejudice to defendants and "the extent to which,
if at all, the special procedures applicable to asbestos cases
should extend to tobacco companies." The Court of Appeals remanded
these issues to be determined at the trial court level. In June
2017, the trial court issued an order dismissing all synergy cases
against the tobacco defendants, including Liggett, without
prejudice. Plaintiffs may seek appellate review or file new cases
against the tobacco companies.
A full-text copy of the Form 10-K is available at
https://bit.ly/3JvPifm
ASBESTOS UPDATE: Perrigo Co. Faces 54 Product Liability Lawsuits
----------------------------------------------------------------
Perrigo Company plc has been named, together with other
manufacturers, in product liability lawsuits in state courts in
California, Florida, Missouri, New Jersey, Louisiana, Oregon and
Illinois alleging that the use of body powder products containing
talcum powder causes mesothelioma and lung cancer due to the
presence of asbestos, according to the Company's Form 10-K filing
with the U.S. Securities and Exchange Commission.
"All but one of these cases involve legacy talcum powder products
that have not been manufactured by the Company since 1999. One of
the pending actions involves a current prescription product that
contains talc as an excipient. As of December 31, 2021, the Company
is currently named in 54 individual lawsuits seeking compensatory
and punitive damages and has accepted a tender for a portion of the
defense costs and liability from a retailer for one additional
matter. The Company has several defenses and intends to
aggressively defend these lawsuits. Trials for these lawsuits are
currently scheduled throughout 2022, 2023 and 2024, with the
earliest trial date in March 2022."
A full-text copy of the Form 10-K is available at
https://bit.ly/3ItGsgS
ASBESTOS UPDATE: Resolute Forest Products Faces PI Claims
---------------------------------------------------------
Resolute Forest Products Inc. is involved in a number of
asbestos-related lawsuits filed primarily in U.S. state courts,
including certain cases involving multiple defendants, according to
the Company's Form 10-K filing with the U.S. Securities and
Exchange Commission.
The Company states, "These lawsuits principally allege direct or
indirect personal injury or death resulting from exposure to
asbestos-containing premises. While we dispute the plaintiffs'
allegations and intend to vigorously defend these claims, the
ultimate resolution of these matters cannot be determined at this
time. These lawsuits frequently involve claims for unspecified
compensatory and punitive damages, and we are unable to reasonably
estimate a range of possible losses. However, unfavorable rulings,
judgments or settlement terms could materially impact our
Consolidated Financial Statements. Hearings for certain of these
matters are scheduled to occur in 2022."
A full-text copy of the Form 10-K is available at
https://bit.ly/3qlAHv9
ASBESTOS UPDATE: TriMas Corp. Has 389 Pending Cases as of Dec. 31
-----------------------------------------------------------------
TriMas Corporation, as of December 31, 2021, was a party to 389
pending cases involving an aggregate of 4,754 claimants primarily
alleging personal injury from exposure to asbestos containing
materials formerly used in gaskets (both encapsulated and
otherwise) manufactured or distributed by Lamons and certain other
related subsidiaries for use primarily in the petrochemical
refining and exploration industries, according to the Company's
Form 10-K filing with the U.S. Securities and Exchange Commission.
"In addition, the Company acquired various companies to distribute
its products that had distributed gaskets of other manufacturers
prior to acquisition. The Company believes that many of the pending
cases relate to locations at which none of its gaskets were
distributed or used.
"The Company may be subjected to significant additional
asbestos-related claims in the future, and will aggressively defend
or reasonably resolve, as appropriate. The cost of settling cases
in which product identification can be made may increase, and the
Company may be subjected to further claims in respect of the former
activities of its acquired gasket distributors. The cost of claims
varies as claims may be initially made in some jurisdictions
without specifying the amount sought or by simply stating the
requisite or maximum permissible monetary relief, and may be
amended to alter the amount sought. The large majority of claims do
not specify the amount sought. Of the 4,754 claims pending at
December 31, 2021, 27 set forth specific amounts of damages (other
than those stating the statutory minimum or maximum). At December
31, 2021, of the 27 claims that set forth specific amounts, there
was one claim seeking more than $5 million for punitive damages.
"Relatively few of the claims have reached the discovery stage and
even fewer claims have gone past the discovery stage. Total
settlement costs (exclusive of defense costs) for all such cases,
some of which were filed over 25 years ago, have been approximately
$10.6 million. All relief sought in the asbestos cases is monetary
in nature. Based on the settlements made to date and the number of
claims dismissed or withdrawn for lack of product identification,
the Company believes that the relief sought (when specified) does
not bear a reasonable relationship to its potential liability."
A full-text copy of the Form 10-K is available at
https://bit.ly/3ttk1nr
*********
S U B S C R I P T I O N I N F O R M A T I O N
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