/raid1/www/Hosts/bankrupt/CAR_Public/220328.mbx
C L A S S A C T I O N R E P O R T E R
Monday, March 28, 2022, Vol. 24, No. 56
Headlines
20/20 EYE CARE: District Court Narrows Claims in Desue Class Suit
2690 GROCERY: Presinal Seeks Minimum, OT Wages Under FLSA & NYLL
6 SOUTH BROADWAY: Class Settlement in Rodriguez Suit Wins Approval
ACADIA LAPLACE: Hamm Seeks Conditional Class Cert of Health Workers
AEGIS SENIOR: Melgoza Seeks Minimum & Overtime Wages Under FLSA
AF MASONRY: Emiliano Montiel Seeks Unpaid Overtime Wages Under FLSA
AFRICAN METHODIST: Mismanages Retirement Plan, Alexander Alleges
AKEBIA THERAPEUTICS: Deputy Sues Over Share Price Decline
AKIMA SUPPORT: Class Settlement in Avery Suit Wins Prelim. Nod
ALLIANCE HEALTH: Fischler Sues Over Blind-Inaccessible Website
ALLIANT INSURANCE: Begian Sues for Denied Insurance Policy Coverage
ALTERYX INC: Chau Securities Case Dismissed
ALTERYX INC: Lalgudi Securities Suit Junked
ALTERYX INC: Smith Securities Class Suit Tossed
AMEER FOOD: Cornelio Sues Over Unpaid Wages for Grill Cooks
AMERICAN HONDA: Class Cert. Order Amendment in Quackenbush
AMGEN INC: Faces Antitrust Suit Over Generic Drug
ANDERSON AVE: Farrell Sues Over Unpaid Minimum, Overtime Wages
ANTHEM INC: Faces Consolidated ERISA Suit
ARCHER DANIELS: AOT, Maize Seek to Clarify March 7, 2022 Order
ARCHER DANIELS: Class Certification Deadlines Entered in MRE Suit
ARCONIC INC: Faces Consolidated Securities Class Suit
BELDEN INC: Edke Class Action Stayed
BELDEN INC: Faces Mackey Suit Over Data Breach
BHJ USA: Lopez Wage-and-Hour Suit Removed to E.D. California
BLACKBERRY LTD: Court Rules on Motions in Limine in Pearlstein Suit
BRIGHTHOUSE LIFE: CMP & Scheduling Order Entered in Martin Suit
BRISTOL-MYERS SQUIBB: Dismissal of Arkansas PERS Suit Affirmed
BROADWAY SAN FRANCISCO: Faces Devireddy Suit Over Unsolicited Calls
BRODOFICATION LLC: CMP, Scheduling Order Entered in Tavarez Suit
CALIFORNIA: Appeals Preliminary Injunction Ruling in E.E. Suit
CANO HEALTH: Gonzalez Sues Over 6.17% Drop of Common Stock Price
CARMAX AUTO: Reid Appeals Vehicle Emission Case Dismissal
CDM FEDERAL: Faces Hibben Suit Over Failure to Pay Proper Wages
CELSIUS HOLDINGS: Faces McCallion Suit Over Stock Price Drop
CENTRAL MANAGEMENT: Transmits Unwanted Robocalls, Coleman Alleges
CHARLOTTE MECKLENBURG, NC: Beyan Suit Dismissed Without Prejudice
CIBC BANK: Web Site Not Accessible to Blind, Williams Suit Says
CITIBANK NA: Perez Employment Suit Removed to E.D. California
COCA-COLA CONSOLIDATED: Jones Wins Prelim. OK of $3.5MM Class Deal
COGNIZANT TECHNOLOGY: Faces Shareholder Suit in NJ Court
COGNIZANT TECHNOLOGY: Settlement in Three Class Suits Gets Final OK
COLGATE DELI: Vera Sues Over Unpaid Minimum and Overtime Wages
COMMERCIAL CONDOMINIUM: Matthews Suit Seeks OT Pay Under FLSA, VOWA
CONNECTICUT GENERAL: Filing for Class Cert Bid Extended to May 6
CORECIVIC INC: Class Certification Filing Extended to June 17
COWEN INC: Web Site Not Accessible to Blind, William Suit Says
CREDIT MANAGEMENT: Preliminary Scheduling Order Entered in Hale
DECARBONIZATION PLUS: Caused Stockholders to OK Merger, Malork Says
DEERE & CO: Monopolizes Repair Service Market, Casselbury Says
DEMOCRACY FORWARD: Bid for Leave to File Amicus Curiae Brief OK'd
DESERT FINANCIAL: 2 Questions Certified to Supreme Court in Cornell
DETROIT, MI: Court Denies Versen's Bid for Preliminary Injunction
DISTRICT COUNCIL 37: Faces Gainer Suit Over Unpaid Minimum Wages
DO & CO NEW YORK: Alvarado Sues Over Improper Wage Practices
DONG BANG CORP: Lee Sues Over Food Service Staff's Unpaid Wages
DREYER'S GRAND: Yu's 1st Amended Suit Dismissed With Leave to Amend
DRYMAX TECHNOLOGIES: Ortega Seeks Blind's Access to Online Store
EDGE WEALTH: Web Site Not Accessible to Blind, Williams Alleges
EQUIFAX CREDIT: Court Adopts M&R and Dismisses Clayton Breach Suit
FAMILY DOLLAR: Brown Files Suit Over Sanitation Issue
FANNIE MAE: Court Junks Securities Suits in D.C
FANNIE MAE: Dismissal of Shareholder Suit Under Appeal
FANNIE MAE: Shareholder Suit Remanded to District Court
FB HOSPITALITY: Harrington Seeks Bartenders' Unpaid Minimum Wages
FIRSTENERGY CORP: Consolidated RICO Case Stayed
FIRSTENERGY CORP: Settlement Talks Over Emmons RICO Suit Underway
FOREVER YOUNG: Faces Mota Suit Over Alleged Telephonic Sales Calls
FREEPORT-MCMORAN: Faces Putative Class Suit in NJ Court
GEMINI TRUST: Fails to Secure Consumers' IRAs, Griffin Suit Claims
GENERAL MOTORS: Hammerschmidt Appeals Airbag Defect Suit Dismissal
GENERAL MOTORS: S.D. Ohio Denies Bid to Dismiss Riley Class Suit
GOOGLE LLC: Curley Sues Over Race Discrimination in the Workplace
GREYSTAR MANAGEMENT: Principe Sues Over Accountants' Unpaid Wages
HEALTHCOMPARE INSURANCE: Scheduling Order Entered in DeLong Suit
HEARTLAND RESOLUTION: Faces Coleman Suit Over Collection Letter
HL WELDING: $858K Class Settlement in Yanez Suit Wins Final Nod
HONEYWELL SAFETY: McKnight Seeks Collective Action Notice
HOPEN LIFE: Order Setting Scheduling Conference Entered in Winkler
IDEANOMICS INC: S.D. New York Grants Bids to Toss Securities Suit
INSPECTIONALERT.COM INC: Monzon Suit Seeks Damages Under FLSA, NYLL
INSPERITY INC: Building Trades' Complaint Dismissed With Prejudice
KADENCE INTERNATIONAL: Fails to Pay Overtime Pay, Brown Alleges
KELLER WILLIAMS: Class Cert Bid Opposition Extended to April 4
KELLER WILLIAMS: Seeks More Time to File Class Cert Bid Response
LORDSTOWN MOTORS: Delaware Court Refuses to Stay Stockholders Suit
MAD FISH SC: Fails to Pay Proper Wages, Craven Suit Alleges
MAGNA INTERNATIONAL: Davis, Dakota Seek Class Certification
MAISON DE'VILLE NURSING: Class Cert Bid Filing Extended to March 28
MAMMOTH TECH: Leininger Alleges WARN Act Violation Over Mass Layoff
MARZ & ASSOCIATES: Underpays General Laborers, Krueger Suit Says
META PLATFORMS: N.D. California Grants in Part Klein's Bids to Seal
META PLATFORMS: Seeks Summary Judgment in DZ Reserve Class Suit
METROPOLITAN LIFE: McAlister, et al., Seek to Certify Class
MG DELI GROCERY: Fails to Pay Proper Overtime Pay, Castillo Says
MICHIGAN STATE: Norris Appeals Order in Suit Over Mandatory Vaccine
MILLIMAN INC: Healy FCRA Suit Seeks to Certify Three Classes
MOLINA HEALTHCARE: Breaches Fiduciary Duties, Mills ERISA Suit Says
NAGLE & ASSOCIATES: NMFIC Summary Judgment Bid Partly Granted
NEW YORK, NY: Class Certification Sought in N.G. Suit
NEW YORK: Donohue Appeals Mask Mandate Class Suit Dismissal
NISSAN NORTH: Manufacturers May File Sur-Reply in Hagenbaugh Suit
NOUHAUS INC: CMP, Scheduling Order Entered in Tavarez-Vargas Suit
OREGON: Canales-Robles Loses Class Certification Bid
OREGON: Court Extends Discovery & PTO Deadlines in Terrill
P&C PAGELS: Fails to Pay Proper Wages, Condado Suit Alleges
PEACHCAP TAX: Leonard Appeals Securities Suit Dismissal
PINNACLE ATHLETIC: Court Approves Settlement in Boyd FLSA Suit
POLARIS INC: Dismissal of Guzman Suit Under Appeal
POLARIS INC: Faces Hellman Class Suit in California
PRATT & WHITNEY: DiCello Named Co-Lead Counsel in Granata Suit
PROGRESSIVE DIRECT: W.D. Washington Stays Proceedings in Assaf Suit
QG PRINTING: Sims' Bid to Certify Class Granted in Part
QUEST INTERNATIONAL: Hong Appeals FLSA Suit Dismissal
RAUSCH STURM: Wins Bid to Compel Arbitration in Schmitt Suit
REAL HOSPITALITY: Final Approval of Class Settlement Deal Sought
RESIDEO TECHNOLOGIES: To Settle Securities Suit in D. Minn.
RESOURCE BIOLOGICS: Progressive Health Sues Over Unsolicited Ads
RIVIAN AUTOMOTIVE: Faces Horvath Suit Over Drop in Share Price
ROSS HUNTER: Gets Continuance of Litigation Deadlines
SAFECO INSURANCE: 2nd Amended Case Management Sched Order Entered
SAMSUNG ELECTRONICS: Holland Suit Asserts "Benchmark Cheating"
SCHRAIER INVESTMENTS: Fails to Pay Proper Wages, Weaver Suit Says
SEABOARD CORPORATION: Antitrust Suit Pending in D. Minn.
SELECT PORTFOLIO: Collins Files FDCPA Suit in S.D. Florida
SERVICE CORP: Faces Taylor Class Suit in Florida Court
SIMON PROPERTY: Court Resets Pre-trial Deadlines in Cafe Suit
SIMPSON STRONG-TIE: Salhotra Loses Class Certification Bid
SOCK GEEK: Ortega Files ADA Suit in S.D. New York
SOCLEAN INC: Litman Sues Over Failure to Disclose Levels of Ozone
SOLDIER'S KABANA: Rowe Class Suit Seeks OT Pay Under FLSA & NYLL
SONY ELECTRONICS: Can Compel Arbitration in Guerriero Class Suit
SOUTHWESTERN ENERGY: Underpays Site Safety Advisors, Polis Says
SPELLMANS MARINE: Tucker Files ADA Suit in S.D. New York
SPIRIT AEROSYSTEMS: Dismissal of Consolidated Suit Under Appeal
SPIRIT AEROSYSTEMS: Faces Securities Suit in Kansas Court
SPIRIT AEROSYSTEMS: Securities Suit in Oklahoma Remains Stayed
STRAIGHT PATH: Del. Ch. Continues Bid to Certify Class as to TAF
TARGET CORP: Dominique-Tate Sues Over Benzene in Sanitizer Gel
TESLA INC: Platt Sues Over Illegal Biometric Data Collection
TEVA PHARMACEUTICALS: Fund Sues Over Copaxone Market Monopoly
TITLEMAX OF NEW MEXICO: Loses Judgment on Pleadings Bid in Romero
TOOTSIE ROLL: Stipulation to Modify Schedule in Maisel OK'd
TUBESCIENCE USA: Faces Worel Suit Over Retaliatory Termination
TYSON FOODS: Tenth Circuit Affirms Dismissal of Thornton's Claims
U.S. BANCORP: $250K FLSA Settlement in Jackson Suit Wins Approval
UMPQUA BANK: Must File Bid for Summary Judgment by May 5
UNIFUND CCR: Court OK's Compliance With Final Order in Rule Suit
UNITED AIRLINES: Voluntary Separation Program Deceptive, Says Suit
UNITED STATES: Beasley Balks at U.S. Navy's MRR Process
UNITED STATES: D.C. Court Certifies Class in Springs v. U.S. Navy
UNIVERSITY OF ILLINOIS: Brown Files Class Certification Bid
V. MARCHESE & CO: Gomez-Velazquez Files Class Certification Bid
VALLON PHARMA: Rendon Sues Over Blind Inaccessible Website
VERTAFORE INC: 5th Cir. Affirms Dismissal of Allen Class Suit
VIACOMCBS INC: Agreement Reached in Consolidated Class Action
VIACOMCBS INC: Agrees to Settle New York Class Action
VIACOMCBS INC: Court Narrows Claims in Securities Suit
VIACOMCBS INC: Faces Shareholder Suits in Del. Ch.
VIACOMCBS INC: Seeks Dismissal of New York Securities Suit
VIEW INC: Sonthalia Petitions for Writ of Mandamus in Mehedi Suit
W.G./WELCH MECHANICAL: Faces Aluira Suit Over Workers' Unpaid Wages
WAL-MART ASSOCIATES: Parties in Nelson Seek to Stay Class Briefing
WALMART INC: Court Denies Bid to Dismiss Fortney Wage & Hour Suit
Y.S. HAPPY: Kim Sues Over Unpaid Minimum and Overtime Wages
ZARBEE'S INC: Faces Cottrill False Ad Suit Over Gripe Water Product
ZENDESK INC: Anderson Securities Suit Stayed
ZENDESK INC: Dismissal of Securities Suit Under Appeal
ZIMMER BIOMET: Class Settlement in Karl Suit Gets Final Approval
*********
20/20 EYE CARE: District Court Narrows Claims in Desue Class Suit
-----------------------------------------------------------------
In the case, WENSTON DESUE, individually and as legal guardian of
N.D. and M.D. and all others similarly situated, Plaintiff v. 20/20
EYE CARE NETWORK, INC., et al., Defendants, Case No.
21-CIV-61275-RAR (S.D. Fla.), Judge Rodolfo A. Ruiz, II, of the
U.S. District Court for the Southern District of Florida granted in
part the Defendants' Joint Motion to Dismiss Plaintiffs' First
Amended Consolidated Complaint.
I. Background
The action is the result of a data breach detected in January 2021,
when 20/20 Eye Care, 20/20 Hearing Care, and iCare allegedly failed
to protect the personally identifiable information ("PII") and
protected health information ("PHI") of the Plaintiffs and over 3.2
million similarly situated persons -- including their names, dates
of birth, Social Security numbers, member identification numbers,
and health insurance information. The Defendants provide
third-party administrative services in the healthcare space,
sharing and storing patients' PII and PHI in the same platform.
Defendant 20/20 Eye Care is a managed vision care company that
provides eye care services and acts as a third-party insurance plan
administrator, assisting both insurance companies and patients.
Defendant iCare acquired Defendant 20/20 Eyecare in September 2020
and exercises some control over 20/20 Eye Care. Defendant 20/20
Hearing Care manages a network of audiologists, acting as a
middleman between managed care plans and their members.
After the Data Breach occurred, the Defendants provided notice to
various state Attorneys General explaining that the Data Breach was
"insider wrong doing." As a result of the Data Breach, the PII and
PHI of more than 3.2 million health plan members were potentially
accessed, downloaded, and deleted from Defendants' technological
platform. The Defendants began notifying victims of the Data Breach
in late May of 2021 -- approximately four months after the
Defendants became aware of the potential breach.
The Plaintiffs allege that the Defendants failed "to implement and
maintain adequate and reasonable data security safeguards, failed
to exercise reasonable care in the hiring, training, and
supervision of its employees and agents, and failed to comply with
industry-standard data security practices and federal and state
laws and regulations governing data security and privacy." The
Plaintiffs maintain these failures and the ensuing Data Breach have
caused them numerous and imminent injuries.
The Plaintiffs, on behalf of themselves and purported Class
Members, assert the following claims: Negligence, unjust
enrichment, breach of confidence, and a violation of the Florida
Deceptive and Unfair Trade Practices Act (FDUTPA). They seek
injunctive relief, declaratory relief, monetary damages, and any
other relief as authorized by law.
The Defendants have now moved to dismiss the Plaintiffs' Amended
Complaint for lack of Article III standing and alternatively, for
failure to state a claim upon which relief can be granted.
II. Analysis
The Defendants raise several arguments in favor of dismissal,
including a lack of subject matter jurisdiction under Rule 12(b)(1)
and failure to state a claim under Rule 12(b)(6).
A. Plaintiffs have sufficiently alleged Article III standing.
Of the three standing prerequisites -- injury in fact,
traceability, and redressability -- the Defendants challenge two.
First, they contend that two of the five named Plaintiffs fail to
allege an injury in fact. And second, that all the named Plaintiffs
fail to plausibly allege traceability. Because the Defendants'
standing arguments solely address the allegations in the First
Amended Complaint rather than any extrinsic materials, this is
considered a facial attack, which "requires the Court merely to
look and see if the Plaintiffs have sufficiently alleged a basis of
subject matter jurisdiction." As this is a facial attack, the
allegations in the First Amended Complaint are taken as true for
standing purposes. And upon examination of the First Amended
Complaint, the Plaintiffs have satisfied the requirements for
Article III standing.
Judge Ruiz holds that (i) Liang and Johnson's alleged injuries
constitute injuries-in-fact sufficient to satisfy claims for
injunctive relief and damages; and (ii) the Defendants' failure to
secure the Plaintiffs' data is sufficiently traceable to their
alleged injuries. Accordingly, all the named Plaintiffs have
established Article III standing and the Defendants' Motion to
Dismiss for lack of subject matter jurisdiction is denied.
B. Plaintiffs have failed to state a claim upon which relief can be
granted.
The Defendants contend that the Plaintiffs' claims must be
dismissed because they are based on conclusory allegations and
legal labels. As a result of these deficiencies, the Defendants
argue that the Plaintiffs fail to state a claim upon which relief
can be granted.
Judge Ruiz finds that the Plaintiffs fail to make clear which the
Defendants are responsible for certain acts or omissions. As the
Defendants correctly note, the Plaintiffs have improperly
commingled different liability theories against the Defendants.
Accordingly, Count I is dismissed without prejudice.
Next, Judge Ruiz finds that the Plaintiffs provided their private
information to multiple third parties. They did not affirmatively
choose to use the Defendants' services; they did not pay for the
Defendants' services nor provide their private information to
Defendants. Even if an indirect conferral of benefits were allowed
under Florida law -- which it is not -- the Plaintiffs still fail
to show that they conferred any benefit sufficient to establish a
claim for unjust enrichment. Accordingly, Count II is dismissed
without prejudice. Given that he is granting the Plaintiffs leave
to amend their operative complaint in conformance with the Order,
Judge Ruiz will give the Plaintiffs an opportunity to establish a
benefit directly conferred on the Defendants with the specificity
necessary to satisfy applicable pleading standards.
Judge Ruiz further finds that (i) the Plaintiffs fail to allege any
acts of disclosure sufficient to establish a breach of confidence
claim; (ii) given the conclusory nature of these allegations, he
cannot determine the true extent of the relationship, or lack
thereof, between the parties, and dismisses Count III without
prejudice; and (iii) despite the presence of standing, the
Plaintiffs have failed to establish the actual damages necessary to
maintain a FDUTPA claim.
III. Conclusion
Judge Ruiz concludes that although the Plaintiffs have standing to
bring the lawsuit, their claims fail to state a claim upon which
relief can be granted and therefore warrant dismissal. Accordingly,
he granted in part the Defendants' Motion to Dismiss Plaintiffs'
First Amended Complaint. Counts I, II, III, and IV are dismissed
without prejudice and with leave to amend. The Plaintiffs will file
a Second Amended Complaint in conformance with the Order by March
29, 2022.
A full-text copy of the Court's March 15, 2022 Order is available
at https://tinyurl.com/ynua6n9v from Leagle.com.
2690 GROCERY: Presinal Seeks Minimum, OT Wages Under FLSA & NYLL
----------------------------------------------------------------
RAFAEL PRESINAL, individually and on behalf of others similarly
situated v. 2690 GROCERY CORP. (D/B/A FIRE HOUSE DELI), JUAN CARLOS
REYES, LIOMARD MESA, Case No. 1:22-cv-02246 (S.D.N.Y., March 18,
2022) seeks to recover unpaid minimum and overtime wages pursuant
to the Fair Labor Standards Act of 1938 and the New York Labor
Law.
Plaintiff Presinal worked for the Defendants in excess of 40 hours
per week, without appropriate minimum wage, and overtime
compensation for the hours that he worked.
Rather, the Defendants allegedly failed to maintain accurate
recordkeeping of the hours worked and failed to pay Plaintiff
Presinal appropriately for any hours worked, either at the straight
rate of pay or for any additional overtime premium. The Defendants'
conduct extended beyond Plaintiff Presinal to all other similarly
situated employees, says the suit.
At all times relevant to this Complaint, the Defendants allegedly
maintained a policy and practice of requiring Plaintiff Presinal
and other employees to work in excess of 40 hours per week without
providing the minimum wage and overtime compensation required by
federal and state law and regulations.
Plaintiff Presinal was employed as a stock worker at the deli
located at 2690 Third Avenue, Bronx, New York, 10454.
The Defendants own, operate, or control a deli, located at 2690
Third Avenue, Bronx, New York, 10454 under the name "Fire House
Deli".[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
6 SOUTH BROADWAY: Class Settlement in Rodriguez Suit Wins Approval
------------------------------------------------------------------
In the case, ISRAEL RODRIGUEZ, individually and on behalf of others
similarly situated, Plaintiff v. 6 SOUTH BROADWAY CORP. d/b/a River
City Grille, and Robert Manzi, Defendants, Case No. 21 Civ. 7438
(JCM) (S.D.N.Y.), Magistrate Judge Judith C. McCarthy of the U.S.
District Court for the Southern District of New York approves the
parties' Settlement Agreement and Release of Claims.
Plaintiff Rodriguez commenced the putative class action to recover
unpaid minimum and overtime wages, spread-of-hour premiums, and
liquidated and statutory damages under the Fair Labor Standards Act
("FLSA"), 29 U.S.C. Sections 201, et seq., and the New York Labor
Law ("NYLL"), Sections 190, et seq., and 650, et seq.
On Dec. 21, 2021, Jan. 11, 2022, and Jan. 19, 2022, the parties
engaged in court-ordered mediation, and reached a settlement. On
March 2, 2022, the parties submitted a Settlement Agreement and
Release of Claims for the Court's review, accompanied by a joint
letter in support of the Agreement, as well as attorney's time
records and costs.
The ultimate question is whether the proposed settlement reflects a
fair and reasonable compromise of disputed issues rather than a
mere waiver of statutory rights brought about by an employer's
overreaching.
In the case, Judge McCarthy holds that the parties engaged in early
mediation, meeting with the mediator three separate times, and
focused on resolving the matter before extensive discovery was
conducted. "There is much to admire in this approach, which
conserves both attorney time and judicial resources."
Furthermore, based on Judge McCarthy's review of the Agreement, the
joint letter, and the documentation supporting the reasonableness
of the attorney's fees and costs, she finds the settlement was the
product of arm's-length negotiations between able counsel and that
the terms of the Agreement, including the approval of the
Plaintiff's counsel's fees, are a fair and reasonable resolution of
the case.
Accordingly, Judge McCarthy approves the settlement.
The Clerk is respectfully requested to close the case.
A full-text copy of the Court's March 11, 2022 Order is available
at https://tinyurl.com/ypcjcjuy from Leagle.com.
ACADIA LAPLACE: Hamm Seeks Conditional Class Cert of Health Workers
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In the class action lawsuit captioned as AMY HAMM, on behalf of
herself and all others similarly situated, v. ACADIA LAPLACE
HOLDINGS, LLC and OCHSNER-ACADIA, LLC, Case No.
2:20-cv-01515-SM-DMD (E.D. La.), the Plaintiff asks the Court to
enter an order:
1. granting her motion for distribution of notice Pursuant to
the Fair Labor Standards Act (FLSA);
2. conditionally certifying her FLSA claims as a collective
action for the following individuals:
"All current and former hourly, non-exempt employees
involved with patient care, including but not limited to
nurses, nursing staff, nursing assistants, nurse aides,
technicians, clerks, non-exempt therapists, or other non-
exempt employees with similar job duties employed at any
facility owned/operated by Defendants during the time
period three years prior to the filing of the original
Complaint until resolution of this action;" and
3. requiring Defendants to produce the names and last known
contact information for all of the potential opt-in
plaintiffs and authorize the issuance of the Proposed
Notice and Consent Form, to all members of the putative
collective.
A copy of the Plaintiff's motion to certify class dated March 7,
2022 is available from PacerMonitor.com at https://bit.ly/3inSspp
at no extra charge.[CC]
The Plaintiff is represented by:
Carolyn H. Cottrell, Esq.
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
- and -
Carolyn H. Cottrell, Esq.
Ori Edelstein, Esq.
SCHNEIDER WALLACE
COTTRELL KONECKY LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
Facsimile: (415) 421-7105
E-mail: ccottrell@schneiderwallace.com
oedelstein@schneiderwallace.com
- and -
Jordyn D. Rystrom Emmert, Esq.
SCHNEIDER WALLACE
COTTRELL KONECKY LLP
3700 Buffalo Speedway, Suite 960
Houston, TX 77098
Telephone: (713) 338-2560
Facsimile: (415) 421-7105
E-mail: jemmert@schneiderwallace.com
AEGIS SENIOR: Melgoza Seeks Minimum & Overtime Wages Under FLSA
---------------------------------------------------------------
DANIELA MELGOZA, on behalf of herself and all others similarly
situated v. AEGIS SENIOR COMMUNITIES LLC d/b/a AEGIS LIVING, Case
No. 5:22-cv-01756 (N.D. Cal., March 18, 2022) stems from the
Defendant's policies and practices of: (1) failing to properly
compensate Plaintiff and putative Class and Collective members for
all hours worked; (2) failing to 8 pay minimum wage for all hours
worked; (3) failing to pay all overtime wages owed; (4) failing to
9 make available, authorize, and/or permit Plaintiff and putative
Class members to take timely and compliant meal and/or rest periods
to which they are entitled by law and failing to make premium
payments for those non-compliant meal and rest periods; (5) failing
to provide accurate, itemized wage statements, and (6) failing to
timely pay all wages due upon separation from employment in
violations of the Fair Labor Standards Act (FLSA) and California
wage and hour laws.
The Plaintiff worked for the Defendant as a caregiver in Aptos,
California from November 2021 until January 2022. Her duties
included, but were not limited to, assisting residents with
activities of daily living; aiding residents in eating, dressing,
and washing; providing other care as needed; and reporting resident
status. Excluding time worked off the clock, Ms. Melgoza typically
24 worked eight hours per shift and five shifts per week, for a
total of 40 hours per week, earning $17.00 per hour.
The Plaintiff seeks damages, penalties, and interest to the full
extent permitted by the FLSA, California Labor Code, and Industrial
Welfare Commission (IWC) Wage Orders.
Aegis Senior is part of the residential care facilities industry.
The Defendant owns and operates 18 assisted living and memory care
facilities across the United States, including in California. The
Defendant provides a continuum of care to elder residents suffering
from physical and cognitive impairments.[BN]
The Plaintiff is represented by:
Carolyn Hunt Cottrell, Esq.
Samantha A. Smith, Esq.
SCHNEIDER WALLACE
COTTRELL KONECKY LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
Facsimile: (415) 421-7105
E-mail: ccottrell@schneiderwallace.com
sasmith@schneiderwallace.com
AF MASONRY: Emiliano Montiel Seeks Unpaid Overtime Wages Under FLSA
-------------------------------------------------------------------
Emiliano Montiel and other similarly situated individuals v. AF
Masonry Inc., Arturo Fuentes, and Maribelle B. De La Fuente,
individually, Case No. 8:22-cv-00612-MSS-CPT (M.D. Fla., March 16,
2022) is an action to recover money damages for unpaid overtime
wages and retaliation pursuant to the Fair Labor Standards Act.
These individual Defendants were the employers of Plaintiff and
others similarly situated within the meaning of Section 3(d) of the
FLSA.
AF Masonry is a construction company specialized in foundations,
structures, exteriors building, and general construction work.[BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
Florida Bar No.: 0024031
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
AFRICAN METHODIST: Mismanages Retirement Plan, Alexander Alleges
----------------------------------------------------------------
REVEREND CEDRIC V. ALEXANDER, individually and on behalf of all
others similarly situated, Plaintiff v. DR. JEROME v. HARRIS;
BISHOP SAMUEL L. GREEN, SR.; TRUSTEES OF THE AFRICAN METHODIST
EPISCOPAL CHURCH MINISTERIAL RETIREMENT ANNUITY PLAN; AFRICAN
METHODIST EPISCOPAL CHURCH MINISTERIAL RETIREMENT ANNUITY PLAN;
AFRICAN METHODIST EPISCOPAL CHURCH DEPARTMENT OF RETIREMENT
SERVICES; AFRICAN METHODIST EPISCOPAL CHURCH, INC.; GENERAL BOARD
OF THE AFRICAN METHODIST EPISCOPAL CHURCH; COUNCIL OF BISHOPS OF
THE AFRICAN METHODIST EPISCOPAL CHURCH; and JOHN AND JANE DOES
1-20, Defendants, Case No. 8:22-cv-00707-TJS (D.M.D., Mar. 22,
2022) alleges violation of the Employee Retirement Income Security
Act ("ERISA").
According to the complaint, the action is about a complete and
total abrogation of the fiduciary responsibilities by the
Defendants, resulting in numerous breaches of duty and resulting in
a single, unmonitored individual, Defendant Harris, controlling all
Plan assets and investments. Dr. Harris invested Plan assets in
imprudent, extraordinarily risky investments that ultimately lost
nearly $100 million of Plan participants' retirement savings.
In its disloyalty and imprudence to the retirement security of
those serving the Church, Defendants provided Dr. Harris sole
authority to invest tens of millions of African Methodist Episcopal
Church, Inc., a Pennsylvania Corporation ("AMEC," or "the Church")
clergy's and other Church servants' retirement savings in a
questionable and potentially unlawful purchase of undeveloped land
in Florida, a promissory note to an Illinois installer of solar
panels, and an even more foolish investment in a now non-existent
capital venture outfit.
As of the date of the filing of the Complaint, the Plaintiff has
not received any of his retirement benefits, despite being retired,
without much income, for well over a year, says the suit.
AFRICAN METHODIST EPISCOPAL CHURCH, usually called the A.M.E.
Church or AME, is a predominantly African-American Methodist
denomination. [BN]
The Plaintiff is represented by:
Elizbeth Hopkins, Esq.
Scott M. Lempert, Esq.
Susan L. Meter, Esq.
KANTOR & KANTOR, LLP
19839 Nordhoff Street
Northridge, CA 91324
Telephone: (877) 783-8686
Facsimile: (253) 285-1849
Email: ehopkins@kantorlaw.net
slempert@kantorlaw.net
smeter@kantorlaw.net
AKEBIA THERAPEUTICS: Deputy Sues Over Share Price Decline
---------------------------------------------------------
DAVID DEPUTY, individually and on behalf of all others similarly
situated, Plaintiff v. AKEBIA THERAPEUTICS, INC., JOHN P. BUTLER,
DAVID A. SPELLMAN, and JASON A. AMELLO, Defendants, Case No.
1:22-cv-01411 (E.D.N.Y., March 14, 2022) is a federal securities
class action brought by the Plaintiff, on behalf of a class
consisting of all persons and entities other than Defendants that
purchased or otherwise acquired Akebia securities between June 28,
2018 and September 2, 2020, both dates inclusive, seeking to
recover damages caused by Defendants' violations of the federal
securities laws and to pursue remedies under the Securities
Exchange Act of and Rule 10b-5 promulgated thereunder, against the
Company and certain of its top officials.
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 in dialysis-dependent and non-dialysis dependent adult
patients.
Throughout the Class Period, Defendants allegedly 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 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.
As a result of Defendants' alleged 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.[BN]
The Plaintiff is represented by:
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
James M. LoPiano, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
E-mail: jalieberman@pomlaw.com
ahood@pomlaw.com
jlopiano@pomlaw.com
- and -
Peretz Bronstein, Esq.
BRONSTEIN, GEWIRTZ & GROSSMAN, LLC
60 East 42nd Street, Suite 4600
New York, NY 10165
Telephone: (212) 697-6484
Facsimile: (212) 697-7296
E-mail: peretz@bgandg.com
AKIMA SUPPORT: Class Settlement in Avery Suit Wins Prelim. Nod
--------------------------------------------------------------
The U.S. District Court for the Eastern District of California
grants the renewed motion for preliminary approval of class
settlement in the lawsuit styled Devier Avery, et al., Plaintiffs
v. Akima Support Operations, Defendant, Case No.
2:19-cv-00924-KJM-AC (E.D. Cal.).
On Aug. 13, 2021, the Court denied without prejudice the unopposed
motion for preliminary approval of a proposed class action
settlement in the action. At the time, counsel for the putative
class had not proposed notice that met the standard of Rule 23 of
the Federal Rules of Civil Procedure.
The Court permitted counsel to supplement the record on the pending
motion with a copy of the notice and up to five pages of briefing
explaining why the notice satisfies the applicable law. Counsel has
now supplemented the record and renewed the motion for preliminary
certification.
The Court has reviewed the proposed notice. It communicates the
information required by Rule 23:
(i) The nature of the action;
(ii) The definition of the proposed class;
(iii) The relevant claims, issues, and defenses;
(iv) A class member may enter an appearance through an
attorney;
(v) The Court will exclude from the proposed class anyone
who requests;
(vi) When and how to request exclusion; and
(vii) The binding effect of a class judgment.
Although the proposed notice could be clearer and more concise, and
although it could have been written with more understandable
language, it meets the requirements of Rule 23, District Judge
Kimberly J. Mueller holds. The renewed motion for preliminary
certification is, thus, granted. A final fairness hearing is set
for Sept. 9, 2022, at 10:00 a.m.
A full-text copy of the Court's Order dated March 7, 2022, is
available at https://tinyurl.com/2p88pnj9 from Leagle.com.
ALLIANCE HEALTH: Fischler Sues Over Blind-Inaccessible Website
--------------------------------------------------------------
BRIAN FISCHLER, individually and on behalf of all other persons
similarly situated, Plaintiff v. ALLIANCE HEALTH, LLC D/B/A
ALLIANCE HEALTH, Defendant, Case No. 1:22-cv-02076-MKV (S.D.N.Y.,
March 14, 2022) arises from the Defendant's failure to design,
construct, maintain, and operate its website --
https://alliance.health/ -- to be fully accessible to and
independently usable by the Plaintiff and other blind or visually
impaired people, in violation of the Americans with Disabilities
Act, the New York State Human Rights Law, and the New York City
Human Rights Law.
The Plaintiff alleges that the Defendant engaged in acts of
intentional discrimination due to the inaccessibility of its
website, and seeks a permanent injunction to cause Defendant to
change its corporate policies, practices, and procedures so that
its website will become and remain accessible to blind and visually
impaired consumers.
Alliance Health, LLC d/b/a Alliance Health is a COVID-19 testing
provider, administering RT-PCR and Rapid Antibody Tests at its New
York locations.[BN]
The Plaintiff is represented by:
Christopher H. Lowe, Esq.
Douglas B. Lipsky, Esq.
LIPSKY LOWE LLP
420 Lexington Avenue, Suite 1830
New York, NY 10170
Telephone: (212) 392-4772
Facsimile: (212) 444-1030
E-mail: chris@lipskylowe.com
doug@lipskylowe.com
ALLIANT INSURANCE: Begian Sues for Denied Insurance Policy Coverage
-------------------------------------------------------------------
HARRY HARMIK BEGIAN, an individual; DEBRA S. PEART, and individual,
MAXIMINO PIMENTEL DUARTE, an individual, JOE MURPHY, an individual,
and on behalf of all others similarly situated, Plaintiffs v.
ALLIANT INSURANCE GROUP, an entity of unknown nature, ALLIANT
INSURANCE SERVICES, INC., an entity of unknown nature; MCLARENS
GLOBAL CLAIMS SERVICES, an entity of unknown nature; LEXINGTON
INSURANCE COMPANY, an entity of unknown nature; ASPEN SPECIALTY
INSURANCE COMPANY, an entity of unknown nature; UNDERWRITERS AT
LLOYDS, an entity of unknown nature; LLOYD’S SYNDICATES, an
entity of unknown nature; ONE BEACON-HOMELAND INSURNACE COMPANY OF
NEW YORK; an entity of unknown nature; HALLMARK SPECIALTY INSURANCE
CO., an entity of unknown nature; XL CATLIN INSURANCE COMPANY UK
LTD, an entity of unknown nature; ENDURANCE WORLDWIDE INSURANCE
LTD/AS SOMPO INTERNATIONAL, an entity of unknown nature; ASPEN
INSURANCE UK LTD., an entity of unknown nature; IRONSHORE SPECIALTY
INSURANCE COMPAY, an entity of unknown nature; BRIT GLOBAL
SPECIALTY LONDON SYNDICATES; an entity of unknown nature; IRONSHORE
EUROPE DAC, an entity of unknown nature; EVANSTON INS. CO., an
entity of unknown nature; RUSI - LANDMARK AMERICAN INSURANCE
COMPANY, an entity of unknown format; ARCH SPECIALTY INSURANCE
COMPANY, an entity of unknown nature; EVEREST INDEMNITY INSURANCE
COMPANY, an entity of unknown nature; PARTNERRE IRELAND INSURANCE
DAC, an entity of unknown nature; CHUBB EUROPEAN GROUP SE, an
entity of unknown nature; SYND 2015 CHN, an entity of unknown
nature; SWISS RE- WESTPORT INSURANCE CORPORATION; an entity of
unknown nature; BERKSHIRE HATHAWAY, an entity of unknown format;
NATIONAL FIRE & MARINE INSURANCE COMPANY; an entity of unknown
nature; LANCASHIRE INSURANCE COMPANY (UK) LTD, an entity of unknown
format; NEON WORLDWIDE PROPERTY CONSORTIUM 9761; an entity of
unknown format; MARKEL-EVANSTON INSURANCE COMPANY; an entity of
unknown format; WESTPORT INSURANCE COMPANY (SWISS RE), an entity of
unknown nature; XL INSURANCE AMERICA, INC., an entity of unknown
nature; SIU-QBE, an entity of unknown nature, and DOES 1 through
20, inclusive, Defendants, Case No. 22STCV09034 (Cal. Super., Los
Angeles Cty., March 14, 2022) alleges that Defendants breached
their duty to perform under their contracted insurance policy and
breached the covenant of good faith and fair dealing when
Defendants denied Plaintiffs' claims for losses.
According to the complaint, Plaintiffs and all other similarly
situated individuals and entities were jointly covered by one
policy of insurance issued by Defendants during the period of July
1, 2019 through June 30, 2020, and were denied benefits under the
policy when they suffered losses as a result of the pandemic.
The Plaintiffs and Class Members also seek injunctive relief,
restitution, and disgorgement of all benefits Defendants enjoyed
from their failure to pay proper coverage pursuant to the parties'
insurance policy.
Alliant Insurance Group is an insurance company based in Newport
Beach, California.[BN]
The Plaintiffs are represented by:
Ramin R. Younessi, Esq.
LAW OFFICES OF RAMIN R. YOUNESSI
A PROFESSIONAL LAW CORPORATION
3435 Wilshire Boulevard, Suite 2200
Los Angeles, CA 90010
Telephone: (213) 480-6200
Facsimile: (213) 480-6201
ALTERYX INC: Chau Securities Case Dismissed
-------------------------------------------
Alteryx, 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 in August 3, 2021, a putative
securities class action lawsuit filed against Alteryx and certain
of its executive officers in U.S. federal court relating to alleged
violations of Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934 was dismissed.
The case docketed "Chau v. Alteryx, Inc.," Case No. 8:20-cv-01886
(September 30, 2020, C.D. Cal.), was filed against Alteryx and
certain of its executive officers in U.S. federal court relating to
alleged violations the Securities Exchange Act of 1934.
Said case was consolidated into one action, "In re Alteryx, Inc.
Securities Litigation," Case No. 8:20-cv-01540 (C.D. Cal). On
January 28, 2021, a first amended complaint was filed asserting
claims on behalf of persons and entities that purchased or
otherwise acquired Alteryx securities between February 13, 2020 and
August 7, 2020. Lead Plaintiffs alleged that such persons and
entities were harmed as a result of certain alleged false or
misleading statements, or omissions, made by Alteryx and certain of
our executive officers. On March 19, 2021, Alteryx filed a motion
to dismiss the consolidated complaint, which the Court granted in
its entirety on June 17, 2021. The Court entered final judgment in
Alteryx's favor on August 3, 2021.
Alteryx is into Analytic Process Automation unifying analytics,
data science and business process automation in one self-service
platform to accelerate digital transformation, delivering
high-impact business outcomes, accelerating the democratization of
data and rapidly upskill modern workforces.
ALTERYX INC: Lalgudi Securities Suit Junked
-------------------------------------------
Alteryx, 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 that in August 3, 2021, a
putative securities class action lawsuit filed against Alteryx and
certain of its executive officers in U.S. federal court relating to
alleged violations of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 was dismissed.
The case docketed "Lalgudi v. Alteryx, Inc.," Case No.
8:20-cv-01910 (October 2, 2020, C.D. Cal.) was filed against
Alteryx and certain of its executive officers in U.S. federal court
relating to alleged violations the Securities Exchange Act of
1934.
Said case was consolidated into one action, "In re Alteryx, Inc.
Securities Litigation," Case No. 8:20-cv-01540 (C.D. Cal). On
January 28, 2021, a first amended complaint was filed asserting
claims on behalf of persons and entities that purchased or
otherwise acquired Alteryx securities between February 13, 2020 and
August 7, 2020. Lead Plaintiffs alleged that such persons and
entities were harmed as a result of certain alleged false or
misleading statements, or omissions, made by Alteryx and certain of
our executive officers. On March 19, 2021, Alteryx filed a motion
to dismiss the consolidated complaint, which the Court granted in
its entirety on June 17, 2021. The Court entered final judgment in
Alteryx's favor on August 3, 2021.
Alteryx is into Analytic Process Automation unifying analytics,
data science and business process automation in one self-service
platform to accelerate digital transformation, delivering
high-impact business outcomes, accelerating the democratization of
data and rapidly upskill modern workforces.
ALTERYX INC: Smith Securities Class Suit Tossed
-----------------------------------------------
Alteryx, 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 in August 3, 2021, a putative
securities class action lawsuit filed against Alteryx and certain
of its executive officers in U.S. federal court relating to alleged
violations of Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934 was dismissed.
The case docketed "Smith v. Alteryx, Inc.," Case No. 8:20-cv-01540
(August 19, 2020, C.D Cal.) was filed against Alteryx and certain
of its executive officers in U.S. federal court relating to alleged
violations the Securities Exchange Act of 1934.
Said case was consolidated into one action, "In re Alteryx, Inc.
Securities Litigation," Case No. 8:20-cv-01540 (C.D. Cal). On
January 28, 2021, a first amended complaint was filed asserting
claims on behalf of persons and entities that purchased or
otherwise acquired Alteryx securities between February 13, 2020 and
August 7, 2020. Lead Plaintiffs alleged that such persons and
entities were harmed as a result of certain alleged false or
misleading statements, or omissions, made by Alteryx and certain of
our executive officers. On March 19, 2021, Alteryx filed a motion
to dismiss the consolidated complaint, which the Court granted in
its entirety on June 17, 2021. The Court entered final judgment in
Alteryx's favor on August 3, 2021.
Alteryx is into Analytic Process Automation unifying analytics,
data science and business process automation in one self-service
platform to accelerate digital transformation, delivering
high-impact business outcomes, accelerating the democratization of
data and rapidly upskill modern workforces.
AMEER FOOD: Cornelio Sues Over Unpaid Wages for Grill Cooks
-----------------------------------------------------------
GONZALO CORNELIO, on behalf of himself and all others similarly
situated, Plaintiff v. AMEER FOOD CORP. (D/B/A AMEER FOOD CORP.),
ZACK ABDO, and ADMAN ISMAIL, Defendants, Case No. 1:22-cv-02252
(S.D.N.Y., March 18, 2022) is a class action against the Defendants
for violations of the New York Labor Law and the Fair Labor
Standards Act including failure to pay minimum wages, failure to
pay overtime wages, failure to provide accurate wage statements,
failure to provide wage notices, illegal wage deductions, and
failure to timely pay wages.
Mr. Cornelio was employed as a grill cook at the Defendants' deli
and grocery from approximately January 26, 2021 until December 4,
2021.
Ameer Food Corp. is an owner and operator of a deli and grocery
located in Upper Manhattan, New York. [BN]
The Plaintiff is represented by:
Catalina Sojo, Esq.
CSM LEGAL, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
AMERICAN HONDA: Class Cert. Order Amendment in Quackenbush
----------------------------------------------------------
In the class action lawsuit captioned as QUACKENBUSH et al., v.
AMERICAN HONDA MOTOR COMPANY, INC. et al., Case No.
3:20-cv-05599-WHA (N.D. Cal.), the Plaintiffs ask the Court to
enter an order that the Class Certification Order be amended.
The Court's February 25, 2022 Order allowed the parties to address
certain other matters. The Plaintiffs believe that most such
corrections are straightforward and addressed by the above
briefing. Additionally, Plaintiffs request that the Court modify
the Certification Order to include the following definition of who
is excluded from the Class:
Excluded from the California and Illinois Classes are: (1)
Defendants, any entity or division in which Defendants have a
controlling interest, and its legal representatives, officers,
directors, assigns, and successors; (2) the Judge to whom this case
is assigned and the Judge's staff; and (3) those persons who have
suffered personal injuries as a result of the alleged facts.
On December 27, 2021 this Court granted in part Plaintiffs' Motion
for Class Certification. Both parties then filed motions for leave
to file motions for reconsideration of the Certification Order. On
February 25, 2022 the Court granted those motions as to five main
issues, and certain additional matters.
Courts routinely permit named plaintiffs who, like Ms. Quackenbush,
paid to repair a vehicle defect, to represent class members who
similarly purchased a defective vehicle but did not pay for a
repair (who typically constitute the bulk of automotive defect
classes). Ms. Quackenbush is a member of both classes -- she
purchased a Class Vehicle and she had it repaired. For example, in
Wolin plaintiffs alleged that "a geometry defect in the vehicles'
alignment allegedly caused uneven and premature tire wear." The
named plaintiff Gable incurred expenses to replace his prematurely
worn tires. See id. at 1171. Following remand, the District Court
granted
Gable's motion to certify a class broadly consisting of "[a]ll
current and former owners and lessees of model year 2004, 2005, and
2006 Land Rover LR3s purchased or leased in the state of Michigan,"
limiting the class to those who had incurred expenses like Gable.
In Nguyen the plaintiff's allegedly defective clutch malfunctioned
and he "spent more than 6 $700 replacing it."
The Plaintiff sought to certify a broad class consisting of "all
individuals in California who purchased or leased, from an
authorized Nissan dealer, a new Nissan vehicle equipped with a
FS6R31A manual transmission."
Nowhere did the Ninth Circuit suggest that the named plaintiff
having paid for repairs barred him from representing class members
who had not. To the contrary, the Ninth Circuit reversed the
District Court's denial of class certification, concluding that
"Plaintiff's theory of liability -- that Nissan's manufacture and
of a defective clutch system injured class members at the time of
sale -- is consistent with his proposed recovery based on the
benefit of the bargain."
The American Honda Motor Company, Inc. is the North American Honda
subsidiary of the Honda Motor Company, Ltd.
A copy of the Plaintiffs' motion dated March 4, 2022 is available
from PacerMonitor.com at https://bit.ly/3Ir5TQ6 at no extra
charge.[CC]
The Plaintiffs are represented by:
Lionel Z. Glancy, Esq.
Marc L. Godino, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, California 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
E-mail: lglancy@glancylaw.com
mgodino@glancylaw.com
- and -
Mark S. Greenstone, Esq.
GREENSTONE LAW APC
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9156
Facsimile: (310) 201-9160
E-mail: mgreenstone@greenstonelaw.com
AMGEN INC: Faces Antitrust Suit Over Generic Drug
--------------------------------------------------
Amgen 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 16, 2022, that it is facing an anti-trust
litigation in the District of Delaware made up of a four class
action suits over the drug Sensipar.
From February to April 2019, four plaintiffs filed putative class
action lawsuits against Amgen and various entities affiliated with
Teva Pharmaceuticals USA, Inc. (Teva) alleging anticompetitive
conduct in connection with settlements between Amgen and
manufacturers of generic "cinacalcet" product. Two of those actions
were brought in the Delaware District Court, captioned "UFCW Local
1500 Welfare Fund v. Amgen Inc., et al." (February 21, 2019),
"Local 1500 and Cesar Castillo, Inc. v. Amgen Inc., et al."
(February 26, 2019). The third action was brought in the New Jersey
District Court, captioned "Teamsters Local 237 Welfare Fund, et al.
v. Amgen Inc., et al." (March 14, 2019) and the fourth action was
brought in the U.S. District Court for the Eastern District of
Pennsylvania captioned "KPH Healthcare Services, Inc. a/k/a Kinney
Drugs, Inc. v. Amgen Inc., et al" (April 10, 2019). Each of the
lawsuits is brought on behalf of a putative class of direct or
indirect purchasers of Sensipar and alleges that the plaintiffs
have overpaid for Sensipar as a result of Amgen's conduct that
allegedly improperly delayed market entry by manufacturers of
generic "cinacalcet" products.
The lawsuits focus predominantly on the settlement among Amgen,
Watson Laboratories, Inc. and Teva of the parties' patent
infringement litigation. Each of the lawsuits seeks, among other
things, treble damages, equitable relief and attorneys' fees and
costs. On April 10, 2019, the plaintiff in the KPH lawsuit filed a
motion seeking to have the four lawsuits consolidated and
designated as a multidistrict litigation (MDL) in the Eastern
Pennsylvania District Court, and the plaintiff in the Local 1500
lawsuit filed a motion seeking to have the four lawsuits, along
with Cipla Ltd. v. Amgen Inc., consolidated and designated as an
MDL in the Delaware District Court.
On July 31, 2019, the MDL panel entered an order consolidating in
the Delaware District Court the four class action lawsuits. On
September 13, 2019, the plaintiffs filed amended complaints, and on
October 15, 2019, Amgen filed its motion to dismiss both the direct
purchaser plaintiffs' consolidated class action complaint and the
indirect purchaser end payor plaintiffs' complaint. On December 6,
2019, the plaintiffs responded to Amgen's motion to dismiss and, on
January 10, 2020, Amgen filed its response. On February 6, 2020,
the motions in the class action lawsuits were transferred to the
U.S. Magistrate Judge for the District of Delaware for a
recommendation. The MDL panel certified its conditional transfer
order on February 6, 2020 transferring the additional class action
lawsuit brought in the U.S. District Court for the Southern
District of Florida, captioned "MSP Recovery Claims v. Amgen Inc.,
et al.," to the Delaware District Court.
On July 22, 2020, the Magistrate Judge issued a recommendation to
the Delaware District Court that the claims against Amgen be
dismissed but leave be given to plaintiffs to amend their
complaints. On August 5, 2020, the plaintiffs filed objections to
the Magistrate Judge's report and recommendation. On August 19,
2020, Amgen filed a response to the plaintiffs' objections. On
November 30, 2020, the District Court adopted the Magistrate
Judge's recommendation in part and denied it in part, denying
Amgen's motion to dismiss on the grounds that plaintiffs adequately
alleged reverse payment claims but granted Amgen's motion to
dismiss with respect to the other Federal antitrust claims. On
December 23, 2020, Teva, Watson and Actavis filed a motion for
interlocutory appeal and for a stay pending appeal and Amgen filed
its joinder (the 1292 Motion). On January 5, 2021, a joint status
report was filed advising the Delaware District Court that the
defendants are still considering whether to withdraw the 1292
Motion and plaintiffs' offer to stay discovery, pending further
rulings on motions to dismiss the amended complaints.
On January 19, 2021, a joint status report was filed pursuant to
the Delaware District Court's January 6, 2021 order along with a
stipulation to defer the 1292 Motion until after rulings on the
amended complaints.
On February 16, 2021, the plaintiffs in the antitrust class action
lawsuit brought on behalf of putative classes of direct or indirect
purchasers of Sensipar filed their amended complaints.
On March 4, 2021, a stipulation and order regarding the filing of a
second amended complaint were filed to add another plaintiff:
Teamsters Western Region & Local 177 Health Care Fund. On March 17,
2021, a defendant, MSP Recovery Claims, Series LLC, filed its
notice of voluntary dismissal. On March 30, 2021, the remaining
defendants, including Amgen, filed their motions to dismiss the
second amended complaint.
On April 27, 2021, plaintiffs filed their oppositions to
defendants' (including Amgen's) motion to dismiss, and defendants'
reply was filed on May 25, 2021. A hearing on defendants' motion to
dismiss was held in the Delaware District Court on July 13, 2021.
Amgen Inc. is a biotechnology company into human therapeutics.
ANDERSON AVE: Farrell Sues Over Unpaid Minimum, Overtime Wages
--------------------------------------------------------------
BRANDON FARRELL, on behalf of himself and all others similarly
situated, Plaintiff v. ANDERSON AVE LLC a/k/a/ SEDONA TAPHOUSE,
MENDI ZUTA, and EDWARD YOUNG, Defendants, Case No. 2:22-cv-01374
(D.N.J., March 14, 2022) seeks to recover minimum and overtime
wages for Plaintiff and his similarly situated co-workers pursuant
to the Fair Labor Standards Act, the New Jersey Wage and Hour Law,
and the New Jersey Wage Payment Law.
The Plaintiff worked for the Defendants as a tipped food-service
worker from April 2021 until December 2021.
Anderson Ave LLC a/k/a/ Sedona Taphouse owns and operates a
restaurant in Cliffside Park, New Jersey.[BN]
The Plaintiff is represented by:
David Harrison, Esq.
HARRISON, HARRISON & ASSOC., LTD.
110 State Highway 35, 2nd Floor
Red Bank, NJ 07701
Telephone: (888) 239-4410
E-mail: dharrison@nynjemploymentlaw.com
- and -
Glen Savits, Esq.
GREEN SAVITS, LLC
25B Vreeland Road
Florham Park, NJ 07932
Telephone: (973) 695-7777
E-mail: gsavits@greensavits.com
ANTHEM INC: Faces Consolidated ERISA Suit
------------------------------------------
Anthem Inc. disclosed in its Form 10-K Report for the quarterly
period ended December 31, 2021, filed with the Securities and
Exchange Commission on February 16, 2022, that it is facing a
single multi-district lawsuit captioned "In Re Express
Scripts/Anthem ERISA Litigation," in the U.S. District Court for
the Southern District of New York.
A class action lawsuit was initially filed in June 2016 against
Anthem, Inc. and Express Scripts citing violations of the Employee
Retirement Income Security Act of 1974 (ERISA), which has been
consolidated. The consolidated complaint was filed by plaintiffs
against Express Scripts and the company on behalf of all persons
who are participants in or beneficiaries of any ERISA or non-ERISA
healthcare plan from December 1, 2009 to December 31, 2019 in which
Anthem provided prescription drug benefits through the ESI pharmacy
benefit management (PBM) agreement and paid a percentage based
co-insurance payment in the course of using that prescription drug
benefit.
The plaintiffs allege that Anthem breached duties, either under
ERISA or with respect to the implied covenant of good faith and
fair dealing implied in the health plans, (i) by failing to
adequately monitor Express Scripts' pricing under the ESI PBM
Agreement, (ii) by placing pecuniary interest above the best
interests of the insureds by allegedly agreeing to higher pricing
in the ESI PBM Agreement in exchange for the purchase price for
Anthem's "NextRx" PBM business, and (iii) with respect to the
non-ERISA members, by negotiating and entering into the ESI PBM
Agreement that was allegedly detrimental to the interests of such
non-ERISA members.
Plaintiffs seek to recover all losses suffered by the proposed
class, equitable relief, disgorgement of alleged ill-gotten gains,
injunctive relief, attorney’s fees and costs and interest.
In April 2017, Anthem filed a motion to dismiss the claims brought
against the company, and it was granted, without prejudice, in
January 2018. Plaintiffs pursued an appeal with the United States
Court of Appeals for the Second Circuit. In December 2020, the
Second Circuit affirmed the trial court's order dismissing the
ERISA complaint. Plaintiffs filed a Petition for Rehearing and
Rehearing En Banc, which was denied. Plaintiffs filed a writ of
certiorari with the United States Supreme Court, which we opposed.
In December 2021, the United States Supreme Court requested that
the Solicitor General submit a brief "expressing the views of the
United States" as to whether the Court should grant plaintiffs'
writ.
Anthem is a health benefits company.
ARCHER DANIELS: AOT, Maize Seek to Clarify March 7, 2022 Order
--------------------------------------------------------------
In the class action lawsuit captioned as AOT HOLDING AG and MAIZE
CAPITAL GROUP, LLC, individually and on behalf of all others
similarly situated, v. ARCHER DANIELS MIDLAND COMPANY, Case No.
2:19-cv-02240-CSB-EIL (C.D. Ill.) the Plaintiffs ask the Court to
clarify its March 7, 2022 text order.
In that order, the Court stated that Plaintiffs' motion for class
certification was "denied as moot, with leave to renew after the
Court rules on Motions," which are the parties' respective motions
to exclude expert testimony.
The Court's February 28, 2022 text order, entered a week earlier,
instructed Plaintiffs to file by March 15, 2022 a response to ADM's
surreply in opposition to class certification. Another February 28
order also granted several of the parties' motions for leave to
file documents under seal, including briefs and exhibits related to
Plaintiffs' motion for class certification, and "direct[ed] the
parties to refile those documents which the parties agree to redact
or unseal in their entirety."
To aid in properly interpreting and complying with the Court's
orders, Plaintiffs respectfully request that the Court clarify
whether:
(1) The Court's March 7 order was intended simply to hold
Plaintiffs' motion for class certification in abeyance,
without affecting its February 28 orders instructing
Plaintiffs to file a further response in support of class
certification by March 15, and the parties to refile
redacted and unsealed versions of documents related to
class certification; or
(2) The Court's March 7 order was intended to supersede its
February 28 orders, and thus to suspend entirely the
completion of briefing related to class certification,
including refiling redacted and unsealed versions of
documents related to class certification.
The Plaintiffs would appreciate the Court's clarification so that
they do not inadvertently violate the Court's February 28 or March
7 orders either by filing a brief on March 15 that they should not
file, or by failing to file a brief that they should file.
AOT Holding is located in Steinhausen, ZUG, Switzerland and is part
of the Other Investment Pools and Funds Industry.
ADM is an American multinational food processing and commodities
trading corporation founded in 1902 and headquartered in Chicago.
A copy of the Plaintiffs' motion dated March 7, 2022 is available
from PacerMonitor.com at https://bit.ly/34Z6Ml6 at no extra
charge.[CC]
The Plaintiffs are represented by:
Michael E. Klenov,Esq.
Stephen M. Tillery,Esq.
Michael E. Klenov,Esq.
Carol L. O'Keefe,Esq.
KOREIN TILLERY LLC
505 North 7th Street, Suite 3600
St. Louis, MO 63101
Telephone: 314-241-4844
Facsimile: 314-241-3525
E-mail: stillery@koreintillery.com
mklenov@koreintillery.com
cokeefe@koreintillery.com
- and -
George A. Zelcs, Esq.
John A. Libra, Esq.
Chad E. Bell, Esq.
Ryan Z. Cortazar, Esq.
KOREIN TILLERY LLC
205 North Michigan Ave., Suite 1950
Chicago, IL 60601
Telephone: (312) 641-9750
Facsimile: (312) 641-9751
E-mail: gzelcs@koreintillery.com
jlibra@koreintillery.com
cbell@koreintillery.com
rcortazar@koreintillery.com
ARCHER DANIELS: Class Certification Deadlines Entered in MRE Suit
-----------------------------------------------------------------
In the class action lawsuit captioned as Midwest Renewable Energy
LLC v. Archer Daniels Midland Company, Case No. 2:20-cv-02212 (C.D.
Ill.), the Hon. Judge Colin Stirling Bruce entered an order setting
class certification deadlines as follows:
-- The Plaintiff shall make April 15, 2022
Plaintiff's class certification
experts available for deposition
by:
-- The shall file Defendant's April 29, 2022
Opposition to Class Certification
and any Daubert motion(s) by:
-- The Defendant shall make June 8, 2022
Defendant's class certification
experts available for deposition
by:
-- The Plaintiff shall file its Reply July 26, 2022
in Support of its Motion for
Class Certification, its Response
to Defendant's Daubert motion(s),
and any Daubert motion(s) of
Plaintiff's own by:
-- The Defendant shall file Defendant's Aug. 9, 2022
Reply in Support of its Daubert
motion(s) by:
-- The Defendant shall file Defendant's Aug. 25, 2022
Responses to Plaintiff's Daubert
motion(s) by:
-- The Plaintiff shall file Plaintiff's Sept. 8, 2022
Reply in Support of its Daubert
motions by:
-- Fact discovery for all parties shall Oct. 4, 2022
close on:
The nature of suit states Other Statutes -- Antitrust.
The Archer-Daniels-Midland Company, commonly known as ADM, is an
American multinational food processing and commodities trading
corporation founded in 1902 and headquartered in Chicago,
Illinois.[CC]
ARCONIC INC: Faces Consolidated Securities Class Suit
-----------------------------------------------------
Howmet Aerospace Inc. (the new name for Arconic Inc.) and Arconic
Corporation 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 currently facing two
purported class actions filed in 2017 against Arconic Inc., Klaus
Kleinfeld and other former Arconic Inc. executives and directors,
and certain banks. The actions, which later were consolidated,
(Howard v. Arconic Inc. et al.) allege violations of the federal
securities laws. A motion remains pending for certification of an
interlocutory appeal.
On June 23, 2021, the court ruled that certain claims related to a
particular registration statement, other SEC filings, product
brochures and websites can proceed and dismissed all other claims
with prejudice. A status conference was held before the court on
January 11, 2022 during which the court heard arguments from both
parties on the pending motion for certification of an interlocutory
appeal. The motion remains pending.
Howmet Aerospace Inc. is a provider of advanced engineered
solutions for the aerospace and transportation industries based in
Pennsylvania. On April 1, 2020, Arconic Inc. completed the
separation of its business into two independent, publicly-traded
companies namely Howmet Aerospace Inc.
BELDEN INC: Edke Class Action Stayed
------------------------------------
Belden 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 in January 2021, plaintiff
Anand Edke filed a putative class action lawsuit against the
company in the Circuit Court of Cook County, Illinois, Case No.
2021 CH 47 after it announced a data incident involving
unauthorized access and copying of some current and former employee
data, as well as limited company information regarding some
business partners in November 24, 2020.
The Edke case was transferred to the U.S. District Court for the
Eastern District of Missouri and subsequently stayed pursuant to
the joint request of the parties.
Belden Inc. provides a complete suite of end-to-end specialty
networking solutions.
BELDEN INC: Faces Mackey Suit Over Data Breach
-----------------------------------------------
Belden 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 in February 2021, a certain
Kia Mackey filed a putative class action lawsuit against the
company in the U.S District Court for the Eastern District of
Missouri, Case No. 4:21-CV-00149 demanding injunctive relief,
unspecified damages, and unspecified legal fees.
On November 24, 2020, the Company announced a data incident
involving unauthorized access and copying of some current and
former employee data, as well as limited company information
regarding some business partners.
Belden Inc. provides a complete suite of end-to-end specialty
networking solutions.
BHJ USA: Lopez Wage-and-Hour Suit Removed to E.D. California
------------------------------------------------------------
The case styled RALPH LOPEZ, individually and on behalf of all
others similarly situated v. BHJ USA, LLC and DOES 1 through 100,
inclusive, Case No. 21C-0402, was removed from the Superior Court
of the State of California for the County of Kings to the U.S.
District Court for the Eastern District of California on March 18,
2022.
The Clerk of Court for the Eastern District of California assigned
Case No. 1:22-at-00173 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to pay minimum wages, failure to pay all
overtime wages, failure to provide meal periods, failure to provide
rest periods, waiting time penalties, failure to provide accurate
wage statements, unfair competition, and failure to reimburse for
necessary expenses.
BHJ USA, LLC is an international supplier of fresh/frozen fish and
meat raw materials, headquartered in Ankeny, Iowa. [BN]
The Defendant is represented by:
Kirstin E. Muller, Esq.
HIRSCHFELD KRAEMER LLP
233 Wilshire Boulevard, Suite 600
Santa Monica, CA 90401
Telephone: (310) 255-0705
Facsimile: (310) 255-0986
E-mail: kmuller@hkemploymentlaw.com
- and –
Anna Pham, Esq.
HIRSCHFELD KRAEMER LLP
456 Montgomery Street, Suite 2200
San Francisco, CA 90401
Telephone: (415) 835-9000
Facsimile: (415) 834-0443
E-mail: apham@hkemploymentlaw.com
BLACKBERRY LTD: Court Rules on Motions in Limine in Pearlstein Suit
-------------------------------------------------------------------
In the case, MARVIN PEARLSTEIN, Individually and on behalf of All
Others Similarly Situated, Plaintiff v. BLACKBERRY LIMITED (f/k/a/
RESEARCH IN MOTION LIMITED), THORSTEN HEINS, BRIAN BIDULKA, and
STEVE ZIPPERSTEIN, Defendants, Case No. 13 Civ. 7060 (CM)(KHP)
(S.D.N.Y.), Judge Cikkeeb McMahon of the U.S. District Court for
the Southern District of New York issued a decision ruling on the
parties' motions in limine.
I. Plaintiffs' Motions
Motion No. 1: The Plaintiffs move to exclude any evidence or
argument relating to a defense of advice of counsel.
Judge McMahon holds that any such defense has been waived and no
testimony or argument concerning same will be permitted. This does
not mean that the Defendants cannot introduce evidence that lawyers
attended meetings or reviewed disclosure documents. However, the
jury will be instructed that there is no evidence in the case that
the Defendants actually relied on the advice of any attorneys who
attended meetings or reviewed documents. The jurors will also be
told that it that they cannot infer that any attorney signed off on
or approved of the decisions and disclosures that were eventually
taken or made from the fact of attendance or review. The Defendants
are free to argue that the attendance of lawyers is evidence that
they acted in good faith -- that they would not have lawyers around
if they were not acting in good faith -- but more than that they
simply cannot say, or even suggest.
Motion No. 2: The Plaintiffs move to exclude testimony from class
representatives Mary Dinzik and Todd Cox, evidence or argument
"regarding the class representatives," including their failure to
testify or absence from the trial.
The motion is denied. Judge McMahon states that the named
Plaintiffs are parties to the lawsuit and the Defendants have every
right to call them to the stand. It is true that the issue of
class-wide damages will not be resolved at this trial and if the
jury concludes that there was a fraud on the market, the named
Plaintiffs are no less entitled to the benefit of the presumption
raised by that theory than are absent class members. However, fraud
on the market merely raises a presumption of reliance, and the
Defendants are entitled to elicit evidence that the named
Plaintiffs did not in fact rely on market conditions in connection
with their trading activity. If, however, this evidence can be
elicited from Mr. Cox, because he made the trading decisions for
both named Plaintiffs, the defense counsel will not be allowed to
ask the jury to draw any negative inference from the fact that Ms.
Dinzik did not testify, since a civil plaintiff, unlike a criminal
defendant, has no obligation to be present during her trial.
Motion No. 3: The Plaintiffs move to exclude argument concerning
aggregate damages, the Defendants' ability to pay, and/or the
effect of a judgment for the Plaintiffs.
Judge McMahon granted the motion with this exception: Assuming the
number of outstanding shares is in evidence, the Defendants may
point out to the jury the total amount of damages sought by the
Plaintiffs in the lawsuit. That is all they may do. They may not
offer any evidence of the Defendants' ability to pay or of the
effect that a judgment of that magnitude would have on BlackBerry
the corporation or any of the individual defendants.
Motion No. 4: The Plaintiffs move to limit the cross-examination of
their experts by precluding the Defendants from questioning them
about rulings made by other judges in other cases concerning the
scope of their expertise.
If the motion is intended to preclude the Defendants from
introducing the rulings of other judges on other Daubert motions,
it is granted. Judge McMahon finds that there is no way, short of a
mini-trial on collateral matters, to know whether any other court's
decision to preclude a particular expert from testifying in some
other matter rested on the judge's conclusion that the expert was
unqualified in the same way that the Court found the experts to be
qualified, or that the opinions the expert was not allowed to give
were the same types of opinions that the experts are giving in the
case. Nothing in this ruling precludes vigorous cross-examination
about the expert's opinions in the case.
Motion No. 5: The Plaintiffs move to exclude evidence or argument
concerning post-class period changes in generally accepted
accounting principles -- specifically, changes announced eight
months after the close of the class period, to go into effect four
years later.
The motion is granted, as any such evidence has little probative
value and tremendous unfair prejudicial impact. Judge McMahon
rejects the Defendants' argument that the change means there was no
"bright line" rule in effect at the time of the alleged
misstatements in the case.
Motion No. 6: The Plaintiffs move to exclude character testimony
concerning the three individual defendants and other Blackberry
witnesses.
The motion is granted in part and denied in part. With limited
exceptions, the usual rule is that character testimony is
inadmissible in civil cases as proof that a person acted in
conformity therewith on a particular occasion. That rule will be
followed. However, if the veracity of the individual defendants is
attacked, they are free to offer character evidence that they enjoy
a good reputation in the community for truthfulness. Judge McMahon
emphasizes that it is a reputation in the community that is
relevant. Appropriate limiting instructions will of course be
given.
Motion No. 7: The Plaintiffs move to exclude evidence or argument
concerning the SEC's inquiry into Blackberry's Revenue Recognition
Practices and its Failure to Pursue Charges against Blackberry. The
motion is granted. Judge McMahon holds that the SEC's declination
to add Blackberry's revenue recognition practices -- already the
subject of class litigation -- to its busy docket does not
constitute a finding that Blackberry's practices were correct or an
endorsement of those practices.
Motion No. 8: The Plaintiffs move to exclude the testimony of
Barbara Stymiest. By notice dated March 8, 2022, they indicate that
this motion was filed in error and should be withdrawn. It is
deemed withdrawn.
Motion No. 9: The Plaintiffs move to exclude evidence or argument
regarding a prior lawsuit brought against Research in Motion in
this district (the Playbook Action). The motion is granted as
unopposed; as Judge McMahon suspected, the Defendants harbored no
such intent.
Motion No. 10: The Plaintiffs move to exclude evidence or argument
concerning the dismissal of any claims, theories of liability or
the dismissal of former named plaintiffs Cho and Ulug. Again, the
motion is (not surprisingly) unopposed. It is granted.
II. Defendants' Motions
Motion No. 1: The Defendants move to preclude the admission of
analyst and media reports for the truth of their contents, as these
third-party statements are hearsay. The motion is not opposed; the
parties simply disagree over when and how often the Court should
instruct the jury that these reports are simply offered to show
that particular information was (1) out in the marketplace, and (2)
available and known or should have been known to the Defendants --
rather than being offered for their truth. When and how often to
charge the jury on this point is the province of the Court.
Motion No. 2: The Defendants move to preclude the Plaintiffs from
arguing about Blackberry's corporate status in a manner that might
arouse prejudice. To the unlikely extent that such a motion is
necessary, Judge McMahon granted it. He will obviously not allow
the Plaintiffs to suggest that Blackberry is bad because it is a
corporation, or that this is an instance when the jury should
defend the interests of "the little guy" against the big bad
corporation. He will similarly not allow anyone to argue that class
action lawyers and plaintiffs are bad because of what they do,
either.
Motion No. 3: The Defendants move to preclude the Plaintiffs from
introducing deposition testimony from witnesses who are within the
subpoena power of the court.
This is, or certainly should be, an unnecessary application; the
rules of evidence and of civil procedure will be enforced. Judge
McMahon's experience is that live testimony works better with the
trier of fact. And for the record: It has nothing to do with
impeachment or refreshment of recollection. Any witness' deposition
may be used to impeach (following the classic formulation, with no
variation in the form of questioning allowed) or to refresh
recollection (not by reading the testimony aloud, but by physically
showing it to the witness and asking if it refreshes the witness'
recollection).
Motion No. 4: The Defendants move to preclude testimony and
argument about unrelated settlements by accounting firms and/or
PCAOB examinations.
Judge McMahon reserved decision reserved. If the PCAOB examination
revealed that E&Y was deficient in its auditing practices for a
reason that is relevant to the lawsuit, then obviously it would be
admitted. There may be other reasons why the PCAOB examination is
admissible, even though it does not identify the clients about
whose work E&Y was being criticized.
Motion No. 5: The Defendants move to preclude testimony concerning
Defendant Heins' post-class period employment history at a company
called PowerMat, Inc. The motion is unopposed, and Judge McMahon
granted it for substantially the reasons set forth in the brief in
support of the motion. If for some reason this becomes an issue for
impeachment, he will address it during trial.
Motion No. 6: The Defendants move to preclude the testimony of
certain witnesses (Gelblum and Huff) who were not disclosed prior
to the discovery cutoff in January 2020. In responding to the
motion, the Plaintiffs coyly make the following statement: "Lead
Plaintiffs respectfully alert the court that they do not oppose the
Defendants' motion in limine requesting an order excluding the
testimony of witnesses Plaintiffs failed to timely disclose in
light of the Court's March 9, 2021 Order instructing the parties
'that no witness whose identity was not formally disclosed prior to
Jan. 31, 2020 will be allowed to testify.'" Nonetheless, both
challenged witnesses are identified on the Plaintiffs' most recent
witness list as testifying live.
However, Judge McMahon finds that the Plaintiffs offer no rebuttal
to the facts that were proffered by the Defendant in support of
this motion. He thus concludes that Mr. Huff was not disclosed as a
witness prior to the cutoff date, and he may not testify. Judge
McMahon further finds that, while Mr. Gelblum's name appeared on
the Plaintiff's original list of 228 potential witnesses, it was
removed from that list when the Plaintiffs were instructed by
Magistrate Judge Parker to provide the Defendants with a "more
meaningful" witness list. And I find that Defendants relied on that
removal by not deposing Mr. Gelblum. He may not testify, either.
Motion No. 7: The Defendants move to preclude testimony from
non-party Rule 30(b)(6) witnesses that is not based on personal
knowledge. The specific target of this motion is Dana Moorehead of
AT&T. The motion is not opposed, and the deposition testimony of
Ms. Moorehead is no longer being offered. The motion is, therefore,
moot.
Motion No. 8: The Defendants move to preclude testimony about
attorney-client privileged communications.
The motion is granted. Judge McMahon holds that the Plaintiff
cannot successfully seek to preclude the use of an advice of
counsel defense and simultaneously question witnesses (including
specifically the General Counsel of Blackberry) about privileged
conversations.
Motion No. 9: The Defendants move to preclude testimony about their
clients' net worth. The motion is granted, except insofar as it may
be deemed to cover evidence and arguments predicated on the
individual defendants' compensation from and stock ownership in
Blackberry, which is highly relevant to scienter. However,
information about their overall net worth is excluded.
Motion No. 10: The Defendants move to preclude testimony or
argument about executives who left Blackberry prior to the class
period.
Judge McMahon denied the motion to the extent that it seeks to
preclude the introduction of evidence about the success or failure
of prior BlackBerry products and the fact (assuming it to be a
fact) that several executives were fired for that reason. Such
evidence is relevant and probative in that it provides a backdrop
against which the events in suit played out.
Motion No. 11: The Defendants move to preclude testimony or
argument about employees who left Blackberry after the close of the
class period. The motion is denied for substantially the reasons
set forth in the brief filed in opposition to the motion.
Motion No. 12: The Defendants seek to preclude evidence and
argument regarding criminal proceedings against James Dunham Jr.
Judge McMahon denied the motion is denied. He says, the only
"prejudice" that might be suffered in the case from the
introduction of such evidence is the perfectly allowable
"prejudice" that the jury might conclude that Detwiler's efforts to
"walk back the cat" on matters relating to his plea allocution
(which was given under oath in circumstances attesting to its
truthfulness) were a recent fabrication.
Motion No. 13: The Defendants move to preclude references by the
Plaintiffs to any "duty" or "obligation" to disclose "trends"
regarding sell-through information and return rates, on the ground
that the court dismissed with prejudice the Plaintiffs' claim that
Blackberry failed to comply with SEC Item 303 of Reg. S-K, 17
C.F.R. Section 229.303.
Judge McMahon agrees with the Plaintiffs that the fact that sales
are trending in a particular direction may well constitute material
information that a reasonable investor would expect to be
disclosed, such that the failure to disclose might violate Section
10(b)-5 rather than Item 303. Nothing in this ruling precludes the
mention of "trends" or "trending" at the trial.
Motion No. 14: The Defendants move to preclude one of the
Plaintiffs' experts, Dr. Feinstein, from opining that alleged
misstatements were material to the price of Blackberry's stock.
The motion is denied. Judge McMahon holds that no witness may offer
an opinion about the ultimate issue of materiality to a reasonable
investor; that word should not escape Dr. Feinstein's lips during
his testimony. But Dr. Feinstein is perfectly free to testify to
the matters comprehended in his report concerning the economic
impact that withheld information would have had on the valuation of
BlackBerry stock. He can most certainly testify about the proximity
between the release of negative information and a consequent
significant decline in the price of Blackberry's stock. Plaintiffs
are then free to argue materiality; no jury needs an expert to
assess that argument for them.
Motion No. 15: The Defendants move to exclude the introduction of
specific media articles: PX 001, 003, 004, 005, 007, 012, 549, 574,
577 and 579. The Plaintiffs inform the Court that they "are
withdrawing the identified exhibits from their exhibit list."
Therefore, the motion is moot.
Motion No. 16: The Defendants move to exclude evidence or argument
about something they call the Draft Applied Value Power Point, and
that the Plaintiffs call the Applied Value Presentation. The motion
is denied, for substantially the reasons articulated in the brief
filed in opposition to the motion.
Motion No. 17: The Defendants move to preclude the Plaintiffs'
expert Thomas Lys from testifying about matters that were not
comprehended in his expert report -- specifically Blackberry's
"valuation of its own inventory, raw materials and supply
commitments." The motion is unopposed. It is, therefore, granted.
Motion No. 18: The Defendants move to preclude the Plaintiffs'
expert Professor Tulin Erdem from offering factual summaries,
timelines, chronologies or recitation of hearsay designed to mimic
closing argument.
This issue was disposed of in the court's Daubert decision, as the
Plaintiffs correctly point out in their responsive brief. Judge
McMahon struck the motion as unnecessary. Professor Erdem will not
be allowed to summarize the Plaintiffs' case; she will be allowed
to testify about the marketing history of Blackberry products and
its competitors' products to the extent needed to explain her
opinions.
Motion No. 19: The Defendants move to preclude the Plaintiffs from
arguing that the knowledge of Blackberry senior executives other
than the Defendants concerning the truth or falsity of the
statements at issue in the case can be attributed to Blackberry for
purposes of establishing scienter as to the corporation.
The motion is denied for substantially the reasons set forth in the
brief filed in opposition to the motion. Judge McMahon finds that
while only a "speaker" can be held liable under Section 10(b) and
Rule 106-5, the Supreme Court made no ruling about corporate
scienter in that case; and the Second Circuit has ruled squarely to
the contrary of the Defendants' argument in Jackson v. Abernathy,
960 F.3d 94 (2d Cir. 2020). On this point, Judge McMahon is
entirely persuaded by the reasoning of my late colleague, Judge
Pauley, in Pa. Public School Employees Ret. Systems v. Bank of
America Corp., 874 F.Supp.2d 341 (S.D.N.Y. 2012). He will follow
Judge Pauley's logic in trying the case.
Motion No. 20: The Defendants move to preclude the Plaintiffs from
introducing evidence about statements that the court has ruled are
not actionable.
Judge McMahon denied the motion. He says, the fact that the
Plaintiffs cannot recover for a particular false statement due to
the running of the statute of repose does not mean that the making
of the statement has no evidentiary value. The statements that were
not timely pleaded will not appear on the verdict sheet; the jury
will not formally assess their truthfulness, or the circumstances
in which they were made, for purposes of assessing liability
against the Defendants. That is the only thing precluded by the
grant of summary judgment.
Motion No. 21: The Defendants move to preclude evidence or argument
seeking to impose liability on Defendants Zipperstein and Bidulka
for statements that they are not alleged to have made. Judge
McMahon says, it is not a proper motion in limine. He denied it.
Motion No. 22: The Defendants move to preclude the introduction of
deposition testimony from witnesses who are read lengthy portions
of documents and who then claim to have no personal knowledge of
said documents.
The motion is denied. Judge McMahon will be forced to rule on
hundreds of Rule 602 objections, designation by designation.
However, if the Plaintiffs' characterization of the testimony of
Lisa Portnoy is correct, then the Court will waste a lot of time on
those objections, because Ms. Portnoy will be permitted to testify
to anything and everything of which she was and was not made aware
by BlackBerry. The person best situated to testify about what Ms.
Portnoy of E&Y knew or did not know is Ms. Portnoy; and Rule 602
objections to such testimony would be frivolous, and treated as
such. Whether E&Y was told everything it needed to know in order
to issue the much vaunted "clean opinions" on BlackBerry's
financials is very much at issue in the case.
Motion No. 23: The Defendants move to preclude the introduction of
documents about which the individual defendants have no knowledge.
Judge McMahon says it is an improper motion in limine, for the
reasons set forth in my memorandum to the parties dated March 9.
However, he is fairly certain that most if not all of the emails to
which objection is made on this ground will be admissible as
against BlackBerry; and if the Defendants do not recall seeing
internal corporate documents that one might expect would be called
to their attention given their position in the company, that
ordinarily goes to the weight of the evidence, not to its
admissibility. The jury can make its own assessment of the truth of
that testimony. That will be the general guiding principle at our
final pre-trial conference.
Motion No. 24: The Defendants move to exclude evidence or argument
concerning the opinions of Geraldo Barron and Paul Holtz -- two
BlackBerry employees -- on the propriety of accounting judgments
made by others at BlackBerry.
The motion is denied, for substantially the reasons set forth in
the brief filed in opposition to the motion. To the extent
BlackBerry's arguments as set forth in its brief pass the laugh
test, Judge McMahon holds they go to the weight of the evidence
being offered -- not to its admissibility. If BlackBerry wishes to
put someone on the stand to testify to the fact that its employees
were incompetent, and that they were nonetheless asked to perform
work that was beyond their ken, it is free to do so. Judge McMahon
would not be surprised, however, if the jury were to find that
testimony less than compelling.
Motion No. 25: The Defendants move to exclude evidence or argument
regarding "Gerard Barron's draft memorandum."
The motion, too, is denied. The memo, which discusses Blackberry's
application of GAAP accounting to BB10 sales in the Q1 of FY 2014,
was prepared by a BlackBerry accounting employee at the request of
his supervisor; it is a BlackBerry business record, prepared after
a review of data that was part of BlackBerry's business records;
and it is plainly relevant to the issues to be decided in the
case.
Motion No. 26: The Defendants move to preclude all references to
something called a draft channel policy that was never adopted (PX
452 and numerous unidentified exhibits that mention the document).
The motion is denied, for substantially the reasons set forth in
the Plaintiffs' brief in opposition to the motion.
Motion No. 27: The Defendants seek to exclude evidence and argument
regarding December 2013 emails from John Chem. Judge McMahon denied
the motion for substantially the reasons set forth in the
Plaintiffs' brief in opposition to the motion.
Motion No. 28: The Defendants seek to exclude testimony and
argument about internal discussions at Blackberry about whether to
consent to AT&T's request to push out shipments of Z10 devices from
the first to the third quarter of FY 2014. Judge McMahon denied the
motion for substantially the reasons set forth in the Plaintiffs'
brief in opposition to the motion.
Motion No. 29: Finally, the Defendants seek to preclude evidence or
argument about post-class period events. The motion is denied, for
substantially the reasons Judge McMahon set forth in the
Plaintiffs' brief filed in opposition to the motion.
III. Conclusion
This constitutes the written decision and order of the Court.
The Clerk of Court is directed to remove the following from the
Court's list of open motions: Docket Numbers 605, 607, 610, 612,
616, 619, 621, 624, 627, 630, 633, 636, 639, 642, 645, 648; 650,
653, 656, 658, 661, 663, 667, 671, 672, 675, 677, 681, 684, 686,
689, 692, 695, 698, 701, 704, 707, 710, and 715.
A full-text copy of the Court's March 11, 2022 Decision is
available at https://tinyurl.com/2p8ez222 from Leagle.com.
BRIGHTHOUSE LIFE: CMP & Scheduling Order Entered in Martin Suit
---------------------------------------------------------------
In the class action lawsuit captioned as LAWRENCE E. MARTIN, on
behalf of himself and all other similarly situated, v. BRIGHTHOUSE
LIFE INSURANCE COMPANY and BRIGHTHOUSE LIFE INSURANCE COMPANY OF
NEW YORK, Case No. 1:21-cv-02923-RA (S.D.N.Y.), the Hon. Judge
Ronnie Abrams entered a case management plan and scheduling order
as follows:
-- Initial requests for production April 7, 2022
of documents shall be served by:
-- Initial interrogatories shall be May 6, 2022
served by:
-- Depositions shall be completed by: Dec. 23, 2022
-- Requests to Admit shall be served Oct. 24, 2022
no later than:
-- The parties will serve affirmative Dec. 7, 2022
expert reports on:
-- The parties will serve rebuttal Feb. 1, 2023
reports on:
-- All discovery shall be completed Feb. 22, 2023
no later than:
-- The Plaintiff's Motion for Class March 27, 2023
Certification will be filed on
or before:
A copy of the Court's order dated March 7, 2022 is available from
PacerMonitor.com at https://bit.ly/3JAFZL1 at no extra charge.[CC]
BRISTOL-MYERS SQUIBB: Dismissal of Arkansas PERS Suit Affirmed
--------------------------------------------------------------
In the case, ARKANSAS PUBLIC EMPLOYEES RETIREMENT SYSTEM, LOUISIANA
SHERIFFS' PENSION & RELIEF FUND, ERSTE-SPARINVEST
KAPITALANLAGEGESELLSCHAFT MBH, Plaintiffs-Appellants, JENNIFER
TUNG, Individually and on behalf of all others similarly situated,
METZLER ASSET MANAGEMENT GMBH, Plaintiffs v. BRISTOL-MYERS SQUIBB
COMPANY, MICHAEL GIORDANO, FOUAD NAMOUNI, FRANCIS M. CUSS, GIOVANNI
CAFORIO, LAMBERTO ANDREOTTI, CHARLES A. BANCROFT,
Defendants-Appellees, Case No. 20-3716-cv (2d Cir.), the U.S. Court
of Appeals for the Second Circuit affirmed the district court's
dismissal of the Second Amended Complaint.
I. Background
Arkansas Public Employees Retirement System, Louisiana Sheriffs'
Pension & Relief Fund, and Erste-Sparinvest
Kapitalanlagegesellschaft mbH (the "Investors"), along with other
plaintiffs that did not appeal, bring the putative class action
against Bristol-Myers and individual officers of the company
(collectively, "Bristol-Myers"). The Investors claim that
Bristol-Myers violated the securities laws with material
misrepresentations and omissions in describing a clinical trial it
conducted on its drug Opdivo. The Investors claim that
Bristol-Myers's stock dropped precipitously when the trial failed
to achieve its goal, allegedly due to factors concealed by the
representations.
The securities class action arises from a failed clinical trial
conducted to ascertain whether a cancer drug in development would
be more effective than chemotherapy in treating a specific type of
lung cancer. In 2009, Bristol-Myers acquired a pharmaceutical
company developing a drug called "nivolumab," subsequently marketed
as Opdivo. Opdivo is a type of immuno-oncology treatment referred
to as a PD-1 checkpoint inhibitor, which treats various types of
cancer by allowing the patient's immune system to fight the cancer
directly. Understanding the allegations of misstatement in the case
requires a rudimentary understanding of the science.
Typically, the protein PD-L1 acts in healthy cells to bind with a
second protein (PD-1) present on immune system T-cells to prevent
them from attacking the healthy cells. This interaction is usually
salutary, but when PD-L1 is present in cancer cells, the
interaction can prevent the immune system from responding to the
cancer cells as well.
The new drug, called a PD-1 checkpoint inhibitor, is designed to
prevent the PD-L1/PD-1 interaction in cancer cells, so that they
can be rendered vulnerable to the body's immune system. Not all
cancer cells have the PD-L1 protein. The higher the percentage of
cancer cells with PD-L1, the "stronger" the patient's PD-L1
"expression," and the more effective the drug in treating that
patient. One parameter in the clinical trial of a PD-1 checkpoint
inhibitor is the strength of expression in the population targeted
by the trial, and that involves a trade-off. A trial limited to a
population with higher expression has increased odds of success; a
trial that also includes patients with lower expression expands the
pool of patients to whom the drug can be prescribed if it succeeds,
but such success may be less likely.
Defendant Bristol-Myers acquired and developed a PD-1 checkpoint
inhibitor now known as Opdivo, and disclosed that it was conducting
a clinical trial. The disclosure did not specify the threshold of
PD-L1 expression primarily targeted by the study. The disclosure
stated generally that the study would target patients "strongly
expressing" PD-L1.
About three years later, when Bristol-Myers publicly announced that
the trial failed, it also disclosed for the first time that it
primarily studied a patient population with PD-L1 expression of at
least 5%. The claim in the suit is that 5% is not a "strong"
expression, and that the class was thereby misled to overestimate
the prospect of the trial's success. Over the ensuing months, the
company and various commentators attributed the failure of the
trial to the selection of a 5% PD-L1 expression threshold, as
opposed to a higher level that would have narrowed the Opdivo trial
to fewer patients but may have improved its chance of success.
Just a few months before the announcement of the results of the
Opdivo trial, one of Bristol-Myers's principal competitors, Merck &
Co., announced the success of a clinical trial on its comparable
drug. Merck had described the parameters of its clinical trial
using similar language regarding "strong" PD-L1 expression, but
eventually disclosed (prior to the study's conclusion) that in its
trial, strong expression meant above 50%.
Following Bristol-Myers's announcement that the trial failed, its
stock price fell. On Feb. 21, 2018, several investors that owned
Bristol-Myers shares in the relevant period filed the suit on
behalf of a putative class in the U.S. District Court for the
Southern District of New York (Vyskocil, J.). The Second Amended
Complaint (the operative complaint, and hereinafter the
"Complaint") alleges that the drop in stock price was attributable
to the study's failure, and that Bristol-Myers had obscured the
risk of such failure by declining to disclose the precise PD-L1
expression threshold and by misrepresenting that the study focused
on patients "strongly" expressing PD-L1.
In sum, the Complaint alleges that the misrepresentations and
omissions were made with the requisite scienter and caused the
price of Bristol-Myers stock to drop, that the Investors relied on
the misrepresentations in purchasing or holding Bristol-Myers
shares, and that they suffered losses as a result.
On Sept. 30, 2020, Judge Vyskocil (to whom the case had been
transferred) dismissed the Complaint with prejudice for failure to
state a claim, holding that the Investors failed to allege (i)
material misrepresentations or omissions or (ii) facts giving rise
to a strong inference of scienter.
II. Discussion
The Second Circuit reviews de novo a district court's dismissal of
a complaint for failure to state a claim. The Investors bring
claims under Section 10(b) of the Securities Exchange Act of 1934,
15 U.S.C. Section 78j(b) (the "Exchange Act"), and its implementing
regulation, Rule 10b-5, 17 C.F.R. Section 240.10b-5; Section 20(a)
of the Exchange Act; and Section 20A of the Exchange Act. To state
a claim under Section 10(b) and Rule 10b-5, a plaintiff must plead:
(1) a misstatement or omission of material fact; (2) scienter; (3)
a connection with the purchase or sale of securities; (4) reliance;
(5) economic loss; and (6) loss causation.
The Second Circuit finds that the Investors failed to adequately
allege a material misstatement or omission or facts giving rise to
a strong inference of scienter. As the Complaint and documents on
which it relies illustrate, rates of PD-L1 expression remained a
topic of research throughout the putative class period; there was
no generally understood meaning of "strong" expression that
contradicted Bristol-Myers's use of the term to mean 5%; and some
observers correctly predicted Bristol-Myers's use of a 5% threshold
before it was publicly disclosed. The Complaint also alleges no
facts indicating that Bristol-Myers had an obligation to disclose
the precise threshold—and Bristol-Myers cautioned the public that
it would not do so.
Further, the Complaint fails to allege facts giving rise to a
strong inference of scienter. The Plaintiffs primarily argue that
Bristol-Myers's knowledge of the industry understanding of PD-L1
expression rendered its misstatements intentional or reckless, but
the Complaint fails to allege such an industry understanding.
The Plaintiffs make two additional arguments. One is that scienter
is evidenced by share sales by certain individual defendants, but
those sales were made at a rate similar to prior periods, or
pursuant to stock trading plans or for other procedural purposes,
and the net effect of their transactions was to increase their
total holdings. The other is that scienter is shown by
Bristol-Myers's alleged reaction to the failure, including candid
assessments of why it occurred and the departure of two high-level
employees; but these unremarkable responses to a disappointing
result do not signify anything nefarious.
III. Conclusion
For the foregoing reasons, the Second Circuit affirmed the district
court's grant of Bristol-Myers's motion to dismiss.
A full-text copy of the Court's March 11, 2022 Order is available
at https://tinyurl.com/4e5dxvss from Leagle.com.
SALVATORE J. GRAZIANO -- salvatore@blbglaw.com -- Bernstein
Litowitz Berger & Grossmann LLP, in New York City (Lauren A.
Ormsbee -- laurenm@blbglaw.com -- Jesse L. Jensen; Javier
Bleichmar, Bleichmar Fonti & Auld LLP, in New York City; William H.
Narwold, Motley Rice LLC, Hartford, Connecticut; Robert D.
Klausner, Klausner, Kaufman, Jensen & Levinson, PA, in Plantation,
Florida, on the brief), for the Plaintiffs-Appellants.
YOSEF J. RIEMER -- yosef.riemer@kirkland.com -- Kirkland & Ellis
LLP, in New York City (Matthew Solum, Daniel R. Cellucci on the
brief), for the Defendants-Appellees.
BROADWAY SAN FRANCISCO: Faces Devireddy Suit Over Unsolicited Calls
-------------------------------------------------------------------
MONESH DEVIREDDY, individually and on behalf of all others
similarly situated, Plaintiff v. BROADWAY SAN FRANCISCO, LLC,
Defendant, Case No. CACE-22-004168 (Fla. Cir., Broward Cty., Mar.
21, 2022) seeks to stop the Defendants' practice of making
unsolicited calls.
BROADWAY SAN FRANCISCO, LLC is a commercial theatrical production
company in San Francisco. It was founded in 1977 by Broadway
producers Carole Shorenstein Hays and Robert Nederlander as
Shorenstein Hays Nederlander Theatres as a promoter of short
engagements of national touring productions of plays and musicals.
[BN]
The Plaintiff is represented by:
Jeremy Dover, Esq.
DEMESMIN & DOVER, PLLC
1650 SE 17th Street, Suite 100
Fort Lauderdale, FL 33316
Telephone: (866) 954-6673
Facsimile: (954) 916-8499
E-mail: Spam-Pleadings@attorneysoftheinjured.com
Jdover@attorneysoftheinjured.com
BRODOFICATION LLC: CMP, Scheduling Order Entered in Tavarez Suit
----------------------------------------------------------------
In the class action lawsuit captioned as VICTORIANO TAVAREZ,
Individually, and On Behalf of All Others Similarly Situated, v.
BRODOFICATION LLC, Case No. 1:21-cv-09796-LJL (S.D.N.Y.), the Court
entered a case management plan and scheduling order as follows:
-- Any motion to amend or to join April 5, 2022
additional parties shall be
filed no later than:
-- All fact discovery is to be July 6, 2022
completed no later than:
-- Depositions shall be completed by: June 29, 2022
-- Requests to Admit shall be served May 20, 2022
no later than:
-- All discovery shall be completed Aug. 29, 2022
no later than:
A copy of the Court's order dated March 7, 2022 is available from
PacerMonitor.com at https://bit.ly/3D8Gmu0 at no extra charge.[CC]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
MIZRAHI LAW
Telephone: (917) 299-6612
E-mail JOSEPH@JMIZRAHILAW.COM
The Defendant is represented by:
Alexander Wilde Leonard, Esq
GOLENBOCK EISEMAN ASSOR BELL & PESKOE
711 3rd Ave.
New York, NY 10017-4014
Telephone: (212) 907-7378
CALIFORNIA: Appeals Preliminary Injunction Ruling in E.E. Suit
--------------------------------------------------------------
State of California, et al., filed an appeal from a court ruling
entered in the lawsuit entitled E. E. by and through her guardian
ad litem A.J., L. N. by and through his guardian ad litem K.N., on
behalf of themselves and a class of those similarly situated,
Disability Rights Education & Defense Fund v. State of California,
California State Board of Education, California Department of
Education, Case No. 3:21-cv-07585-AGT, in the U.S. District Court
for Northern California, San Francisco.
On September 28, 2021, the Plaintiffs filed this class action
lawsuit against the State of California, the California State Board
of Education, and the California Department of Education.
Plaintiffs are students with disabilities and an organization that
advocates for disabled students and their families, and they bring
suit on behalf of "All California students who, now or in the
future, have an Individual Education Plan and whose parent,
guardian or education rights holder has determined that in-person
instruction would put the student at risk." The complaint
challenges a state law - Assembly Bill 130 - that was passed in
July 2021 and that provides that Independent Study is the primary
avenue for distance learning during the 2021-2022 school year. The
Plaintiffs claim that AB 130 has limited distance learning to a
single format that is inaccessible to students with disabilities,
and that many students with disabilities require distance learning
during the 2021-2022 school year because their parents have
determined that their health would be put at risk by in-person
instruction. Plaintiffs claim that as a result of AB 130, they are
being denied the accommodation of virtual access to school,
resulting in numerous students who have missed significant portions
of the 2021-2022 school year because they cannot safely attend
school in person.
The Plaintiffs allege that during the 2020-2021 school year,
students with Individual Education Plans had "distance learning
plans" that reflected how the services in their IEPs would be
provided during the COVID-19 pandemic. At the beginning of the
COVID-19 pandemic in 2020, California enacted new statutes to
ensure that school districts offered students access to distance
learning.
On November 22, 2021, the Defendants filed a motion for preliminary
injunction which the Court granted on February 28, 2022.
The Defendants seek a review of this ruling.
The appellate case is captioned as E. E., et al. v. State of
California, et al., Case No. 22-15374, in the United States Court
of Appeals for the Ninth Circuit, filed on March 11, 2022.[BN]
Defendants-Appellants STATE OF CALIFORNIA, CALIFORNIA STATE BOARD
OF EDUCATION, and CALIFORNIA DEPARTMENT OF EDUCATION are
represented by:
Jennifer Ann Bunshoft, Esq.
AGCA - OFFICE OF THE CALIFORNIA ATTORNEY GENERAL
455 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 703-5085
E-mail: jennifer.bunshoft@doj.ca.gov
- and -
Elizabeth Lake, Esq.
CALIFORNIA DEPARTMENT OF JUSTICE
600 W Broadway, Suite 1800
San Diego, CA 92101
Telephone: (619) 738-9305
- and -
Kevin Lee Quade, Esq.
AGCA-OFFICE OF THE CALIFORNIA ATTORNEY GENERAL
1300 I Street, Suite 125
Sacramento, CA 95814
Telephone: (916) 210-7693
E-mail: kevin.quade@doj.ca.gov
Plaintiffs-Appellees E. E., by and through her guardian ad litem
A.J; L. N., by and through his guardian ad litem K.N., on behalf of
themselves and a class of those similarly situated; DISABILITY
RIGHTS EDUCATION & DEFENSE FUND; H. H., by and through her guardian
ad litem M.H.; K. H., by and through her guardian ad litem C.H.;
and THE ARC OF CALIFORNIA, are represented by:
Melinda R. Bird, Esq.
DISABILITY RIGHTS CALIFORNIA
350 S Bixel Street, Suite 290
Los Angeles, CA 90017
Telephone: (213) 213-8000
E-mail: melinda.bird@disabilityrightsca.org
- and -
Robert John Borrelle, Jr., Esq.
DISABILITY RIGHTS EDUCATION AND DEFENSE FUND
3075 Adeline Street, Suite 210
Berkeley, CA 94703
Telephone: (510) 644-2555
E-mail: robert.borrelle@disabilityrightsca.org
- and -
Lauren Lystrup, Esq.
DISABILITY RIGHTS CALIFORNIA
1330 Broadway, Suite 500
Oakland, CA 94612
Telephone: (510) 267-1224
E-mail: lauren.lystrup@disabilityrightsca.org
CANO HEALTH: Gonzalez Sues Over 6.17% Drop of Common Stock Price
----------------------------------------------------------------
ALBERTO GONZALEZ, on behalf of himself and all others similarly
situated, Plaintiff v. CANO HEALTH, INC. f/k/a JAWS ACQUISITION
CORP., MARLOW HERNANDEZ, BRIAN D. KOPPY, JOSEPH L. DOWLING, and
MICHAEL RACICH, Defendants, Case No. 1:22-cv-20827 (S.D. Fla.,
March 18, 2022) is a class action against the Defendants for
violations of Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934.
According to the complaint, the Defendants made materially false
and misleading statements regarding Cano Health's business,
operations, and compliance policies in order to trade Cano
securities at artificially inflated prices between May 18, 2020 and
February 25, 2022. Specifically, the Defendants made false and/or
misleading statements and/or failed to disclose that: (i) Cano
overstated its due diligence efforts and expertise with respect to
acquiring target businesses; (ii) accordingly, Cano performed
inadequate due diligence into whether the company, post-business
combination, could properly account for the timing of revenue
recognition as prescribed by Accounting Standards Update No.
2014-09, Revenue from Contracts with Customers (Topic 606),
particularly with respect to Medicare risk adjustments; (iii) as a
result, the company misstated its capitated revenue, direct patient
expense, accounts receivable, net of unpaid service provider costs,
and accounts payable and accrued expenses; (iv) accordingly, the
company was at an increased risk of failing to timely file one or
more of its periodic financial reports; and (v) as a result, the
company's public statements were materially false and misleading at
all relevant times.
When the truth emerged, Cano's Class A common stock price fell
$0.32 per share, or 6.17 percent, to close at $4.87 per share on
February 28, 2022, damaging investors, says the suit.
Cano Health, Inc., formerly known as Jaws Acquisition Corp Cano
Health, Inc., is a health care services provider, headquartered in
Miami, Florida. [BN]
The Plaintiff is represented by:
Jayne A. Goldstein, Esq.
MILLER SHAH LLP
1625 N. Commerce Pkwy., Suite 320
Fort Lauderdale, FL 33326
Telephone: (954) 903-3170
Facsimile: (866) 300-7367
E-mail: jagoldstein@millershah.com
- and –
Jennifer Pafiti, Esq.
POMERANTZ LLP
1100 Glendon Avenue, 15th Floor
Los Angeles, CA 90024
Telephone: (310) 405-7190
Facsimile: (212) 661-8665
E-mail: jpafiti@pomlaw.com
CARMAX AUTO: Reid Appeals Vehicle Emission Case Dismissal
---------------------------------------------------------
Plaintiff Alexandra Reid filed an appeal from a court ruling
entered in the lawsuit styled ALEXANDRA REID, individually, and on
behalf of other members of the general public similarly situated,
Plaintiff v. CARMAX AUTO SUPERSTORES, INC.; CARMAX AUTO SUPERSTORES
WEST COAST, INC.; DOES 1-100, inclusive, Defendants, Case No.
2:21-cv-04815, in the United States District Court for the Central
District of California.
The lawsuit was filed by the Plaintiff on June 14, 2021, seeking
damages, injunctive relief, and any other available legal or
equitable remedies, for violations of the California Unfair
Competition Law, common law fraud, and unjust enrichment, as a
result of alleged illegal actions of Carmax, in fraudulently and
unlawfully selling vehicles that do not meet California Emissions
standards, including fraudulently completing the title certificate,
to unlicensed dealers for retail sale.
On October 29, 2021, the Defendants filed a motion to dismiss
Plaintiff's amended class action complaint which the Court granted
on February 11, 2022, through an Order signed by Judge Mark C.
Scarsi.
The Plaintiff seeks a review of this order.
The appellate case is captioned as Alexandra Reid v. CarMax Auto
Superstores, Inc., et al., Case No. 22-55261, in the United States
Court of Appeals for the Ninth Circuit, filed on March 14, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant Alexandra Reid Mediation Questionnaire was due on
March 21, 2022;
-- Appellant Alexandra Reid opening brief is due on May 9,
2022;
-- Appellees Carmax Auto Superstores West Coast, Inc. and Carmax
Auto Superstores, Inc. answering brief is due on June 8, 2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiffs-Appellants ALEXANDRA REID, individually, and on behalf
of other members of the general public similarly situated, is
represented by:
Adrian Bacon, Esq.
Todd M. Friedman, Esq.
LAW OFFICES OF TODD FRIEDMAN, PC
21031 Ventura Boulevard, Suite 340
Woodland Hills, CA 91364
Telephone: (877) 206-4741
E-mail: tfriedman@toddflaw.com
Defendants-Appellees CARMAX AUTO SUPERSTORES, INC. and CARMAX AUTO
SUPERSTORES WEST COAST, INC. are represented by:
Jack Frank Altura, Esq.
TROUTMAN PEPPER HAMILTON SANDERS LLP
350 S. Grand Avenue, Suite 3400
Los Angeles, CA 90071
Telephone: (213) 928-9823
E-mail: jack.altura@troutman.com
- and -
Chad R. Fuller, Esq.
TROUTMAN PEPPER HAMILTON SANDERS, LLP
11682 El Camino Real, Suite 400
San Diego, CA 92130
Telephone: (858) 509-6000
E-mail: chad.fuller@troutman.com
- and -
Alan Durrum Wingfield, Esq.
TROUTMAN PEPPER HAMILTON SANDERS, LLP
1001 Haxall Point
Richmond, VA 23219
Telephone: (804) 697-1350
E-mail: alan.wingfield@troutman.com
CDM FEDERAL: Faces Hibben Suit Over Failure to Pay Proper Wages
---------------------------------------------------------------
GALEN GLEN HIBBEN, individually and on behalf of all others
similarly situated, Plaintiff V. CDM FEDERAL PROGRAMS CORPORATION,
Defendant, Case No. 1:22-cv-10395 (D. Mass., March 14, 2022) seeks
to recover regular and overtime wages under the Fair Labor
Standards Act and the Massachusetts Wage Act.
The Plaintiff worked for the Defendant as a grants manager
instructor. He asserts that the Defendant did not pay him
one-and-one-half times his regular rate of pay for each overtime
hour he worked during the Claims Period.
CDM Federal Programs Corporation is part of an organization that
secured contracts with the Federal Emergency Management Agency. The
company provides various disaster and emergency relief
construction, cleanup and related services throughout the country
and offshore U.S. territories.[BN]
The Plaintiff is represented by:
Philip J. Gordon, Esq.
Kristen M. Hurley, Esq.
GORDON LAW GROUP, LLP
585 Boylston St.
Boston, MA 02116
Telephone: (617) 536-1800
Facsimile: (617) 536-1802
E-mail: pgordon@gordonllp.com
khurley@gordonllp.com
- and -
Ricardo J. Prieto, Esq.
Melinda Arbuckle, Esq.
SHELLIST LAZARZ SLOBIN LLP
11 Greenway Plaza, Suite 1515
Houston, TX 77046
Telephone: (713) 621-2277
Facsimile: (713) 621-0993
E-mail: rprieto@eeoc.net
marbuckle@eeoc.net
CELSIUS HOLDINGS: Faces McCallion Suit Over Stock Price Drop
------------------------------------------------------------
CHRISTIAN F. MCCALLION, individually and on behalf of all others
similarly situated v. CELSIUS HOLDINGS, INC., JOHN FIELDLY, and
EDWIN NEGRON, Case No. 9:22-cv-80418-DMM (S.D. Fla., March 16,
2022) is a class action on behalf of persons and entities that
purchased or otherwise acquired Celsius securities between August
12, 2021 and March 1, 2022, inclusive pursuing claims against the
Defendants under the Securities Exchange Act of 1934.
Celsius develops, markets, and sells functional drinks and liquid
supplements. Its core offerings include pre- and post-workout
functional energy drinks and protein bars.
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.
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, the Defendants failed to
disclose to investors that the Company had improperly recorded
expenses for non-cash share-based compensation for second and third
quarters of 2021.
As a result of Defendants' alleged wrongful acts and omissions, and
the precipitous decline in the market value of the Company's
securities, the Plaintiff and other Class members have suffered
significant losses and damages.
Plaintiff McCallion purchased Celsius 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.
Celsius develops, markets, and sells functional drinks and liquid
supplements. Its core offerings include pre- and post-workout
functional energy drinks and protein bars. The Individual
Defendants are officers of the company.[BN]
The Plaintiff is represented by:
Leo W. Desmond, Esq.
DESMOND LAW FIRM, P.C.
5070 Highway A1A, Suite D
Vero Beach, FL 32963
Telephone: (772) 231-9600
E-mail: lwd@desmondlawfirm.com
- and -
Robert V. Prongay, Esq.
Charles H. Linehan, Esq.
Pavithra Rajesh, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
CENTRAL MANAGEMENT: Transmits Unwanted Robocalls, Coleman Alleges
-----------------------------------------------------------------
KAYLEIGH COLEMAN, individually and on behalf of all others
similarly situated, Plaintiff v. CENTRAL MANAGEMENT SOLUTIONS, LLC,
Defendant, Case No. 22-001302-CI (Fla. Cir. Ct., 6th Jud. Cir.,
Pinellas Cty., March 18, 2022) is a class action against the
Defendant for its violation of the Fair Debt Collection Practices
Act, the Florida Consumer Collections Practices Act, and the
Telephone Consumer Protection Act.
The case arises from the Defendant's alleged practice of utilizing
an artificial or prerecorded voice to transmit voicemail on the
cellular telephone numbers of consumers, including the Plaintiff,
as part of its debt collection efforts. The Plaintiff and Class
members did not provide the Defendant prior express consent to
place calls to their cellular telephones. The Defendant's unwanted
phone calls caused harm to the Plaintiff and Class members
including anxiety, nuisance, and emotional stress.
Central Management Solutions, LLC is a debt collection firm, with
its principal place of business in Conyers, Georgia. [BN]
The Plaintiff is represented by:
Jason Tenenbaum, Esq.
TENENBAUM LAW GROUP, PLLC
1600 Ponce De Leon Blvd., 10th Floor
Coral Gables, FL 33134
Telephone: (305) 402-9529
Facsimile: (786) 292-1948
CHARLOTTE MECKLENBURG, NC: Beyan Suit Dismissed Without Prejudice
-----------------------------------------------------------------
The U.S. District Court for the Western District of North Carolina,
Charlotte Division, dismissed without prejudice the lawsuit
entitled JAMES L. BEYAN, JR., Plaintiff v. CHARLOTTE MECKLENBURG
POLICE DEPARTMENT, Defendant, Case No. 3:22-cv-12-RJC-DSC
(W.D.N.C.).
The pro se Plaintiff purported to file this case as a class action
lawsuit pursuant to the Court's federal question and diversity
jurisdiction.
On Jan. 31, 2022, the Court granted the Plaintiff's Application to
proceed in forma pauperis and dismissed the Complaint on initial
review as frivolous and for failure to state a claim upon which
relief can be granted. The Court granted the Plaintiff 14 days
within which to amend his Complaint to correct the deficiencies
identified by the Court. The Plaintiff was cautioned that the
failure to timely comply with the Order would result in this case's
dismissal without further notice.
District Judge Robert J. Conrad, Jr., opines that the Plaintiff
failed to timely comply with the Court's January 31 Order and the
time to do so has expired. Therefore, this action will be dismissed
without prejudice.
It is, therefore, ordered that the action is dismissed without
prejudice for the Plaintiff's failure to comply with the Court's
Jan. 31, 2022 Order. The Clerk of the Court is directed to close
the case.
A full-text copy of the Court's Order dated March 7, 2022, is
available at https://tinyurl.com/49t88wvp from Leagle.com.
CIBC BANK: Web Site Not Accessible to Blind, Williams Suit Says
---------------------------------------------------------------
MILTON WILLIAMS, individually and on behalf of all other similarly
situated, Plaintiffs v. CIBC BANK USA, INC., Defendant, Case No.
1:22-cv-02338 (S.D.N.Y., Mar. 22, 2022) alleges violation of the
Americans with Disabilities Act.
The Plaintiff alleges in the complaint that the Defendant's Web
site, https://us.cibc.com/en/home.html, is not fully or equally
accessible to blind and visually-impaired consumers, including the
Plaintiff, in violation of the ADA.
The Plaintiff seeks a permanent injunction to cause a change in the
Defendant's corporate policies, practices, and procedures so that
the Defendant's Web site will become and remain accessible to blind
and visually-impaired consumers.
CIBC Bank USA provides banking services. The Bank offers personal
banking, wealth management, loans, mortgages, cards, savings
accounts, leasing, retirement plans, investment management,
financial advisory, online banking, and insurance services. CIBC
Bank operates in United States. BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
Jeffrey M. Gottlieb, Esq.
Dana L. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 East 18th Street, Suite PHR
New York, NY 10003
Telephone: (212) 228-9795
Facsimile: (212) 982-6284
Email: Michael@Gottlieb.legal
Jeffrey@Gottlieb.legal
Dana@Gottlieb.legal
CITIBANK NA: Perez Employment Suit Removed to E.D. California
-------------------------------------------------------------
The case styled VERONICA PEREZ, individually and on behalf of all
others similarly situated v. CITIBANK, N.A. and DOES 1 to 50, Case
No. 22CV-00362, was removed from the Superior Court of the State of
California for the County of Merced to the U.S. District Court for
the Eastern District of California on March 18, 2022.
The Clerk of Court for the Eastern District of California assigned
Case No. 1:22-at-00176 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to pay all minimum wages, failure to pay
split shift premiums, failure to pay all overtime wages, failure to
provide rest periods and pay missed rest period premiums, failure
to provide meal periods and pay missed meal period premiums,
failure to maintain accurate employment records, failure to pay
wages timely during employment, failure to pay all wages earned and
unpaid at separation, failure to indemnify all necessary business
expenditures, failure to furnish accurate itemized wage statements,
and unfair business practices.
Citibank, N.A. is a financial services company based in New York,
New York. [BN]
The Defendant is represented by:
Daryl S. Landy, Esq.
Joseph A. Govea, Esq.
MORGAN, LEWIS & BOCKIUS LLP
600 Anton Boulevard, Suite 1800
Costa Mesa, CA 92626-7153
Telephone: (714) 830-0600
Facsimile: (714) 830-0700
E-mail: daryl.landy@morganlewis.com
joseph.govea@morganlewis.com
COCA-COLA CONSOLIDATED: Jones Wins Prelim. OK of $3.5MM Class Deal
------------------------------------------------------------------
In the lawsuit captioned as CHEYENNE JONES, et al., Plaintiffs v.
COCA-COLA CONSOLIDATED, INC., et al., Defendants, Case No.
3:20-CV-00654-FDW-DSC (W.D.N.C.), Judge Frank D. Whitney of the
U.S. District Court for the Western District of North Carolina,
Charlotte Division:
-- grants the Plaintiff's Motion for Preliminary Approval of
Class Action Settlement; and
-- denies as moot the Plaintiff's Motion to Certify Class.
The Agreement is preliminarily approved as fair, reasonable, and
adequate. Judge Whitney finds that the amount of the Settlement --
$3.5 million -- is fair, reasonable, and adequate, taking into
account the costs, risks, and delay of litigation, trial, and
appeal. The proposed Plan of Allocation is also fair, reasonable,
and adequate.
The Class Action involves claims for alleged violations of the
Employee Retirement Income Security Act of 1974, as amended, 29
U.S.C. Section 1001, et seq. ("ERISA"), with respect to the
Coca-Cola Consolidated, Inc. 401(k) Plan (the "Plan"). The terms of
the Settlement are set out in that certain Settlement Agreement and
Release, fully executed as of Feb. 22, 2022, by counsel on behalf
of the Class Representatives, all Class Members, and the
Defendants, respectively.
Pursuant to Plaintiffs' Motion for Preliminary Approval of Class
Action Settlement, Preliminary Certification of a Class for
Settlement Purposes, Approving Form and Manner of Settlement
Notice, Preliminarily Approving Plan of Allocation, and Scheduling
a Date for a Fairness Hearing, filed on Feb. 22, 2022, the Court
preliminarily considered the Settlement to determine, among other
things, whether the Settlement is sufficient to warrant the
issuance of notice to members of the proposed Settlement Class.
In accordance with the Settlement Agreement, and pursuant to Rules
23(a) and (b)(1) of the Federal Rules of Civil Procedure, the Court
conditionally certifies this class ("Settlement Class"):
All participants and beneficiaries of the Plan, at any time
during the Class Period, including any beneficiary of a
deceased person who was a participant in the Plan at any
time during the Class Period, and any Alternate Payees, in
the case of a person subject to a QDRO who was a participant
in the Plan at any time during the Class Period. The Class
shall exclude all Defendants.
Pursuant to the Agreement, and for settlement purposes only, the
Court preliminarily finds that, among other things, as required by
Rule 23(a)(1) of the Federal Rules of Civil Procedure, the
Settlement Class is ascertainable from records kept with respect to
the Plan and from other objective criteria, and the Settlement
Class is so numerous that joinder of all members is impracticable.
The Court preliminarily appoints Cheyenne Jones and Sara J. Gast as
Class Representatives for the Settlement Class and Miller Shah LLP
and Capozzi Adler, P.C., as Class Counsel for the Settlement
Class.
A hearing is scheduled for Aug. 2, 2022, at 9:00 a.m., to make a
final determination concerning, among other things: any objections
from Class Members to the Settlement or any aspects of it; whether
the Settlement merits final approval as fair, reasonable, and
adequate; whether the Class Action should be dismissed with
prejudice pursuant to the terms of the Settlement; whether Class
Counsel adequately represented the Settlement Class for purposes of
entering into and implementing the Settlement; whether the
proposed Plan of Allocation should be granted final approval; and
whether Class Counsel's application(s) for Attorneys' Fees and
Expenses and Case Contribution Awards to the Class Representatives
are fair and reasonable, and should be approved.
The Court approves the form of Settlement Notice attached as
Exhibit B to the Settlement Agreement and Former Participant Claim
Form attached as Exhibit E to the Settlement Agreement.
The Court approves the appointment of Strategic Claims Services as
the Settlement Administrator for the Settlement. The Court directs
that the Settlement Administrator will by no later than April 7,
2022, cause the Settlement Notice and Former Participant Claim
Form, with such non-substantive modifications thereto as may be
agreed upon by the Parties, to be provided by first-class mail,
postage prepaid, to the last known address of each member of the
Settlement Class who can be identified through reasonable effort.
The Court finds that the contents of the Settlement Notice and the
process described herein and in the Settlement are the best notice
practicable under the circumstances, and satisfy the requirements
of Rule 23(c) and Due Process.
Any petition by Class Counsel for attorneys' fees, litigation costs
and Case Contribution Awards to the Class Representatives, and all
briefs in support thereof, will be filed no later than June 17,
2022.
Briefs in Support of Final Approval of the Settlement -- Briefs and
other documents in support of final approval of the Settlement will
be filed no later than June 17, 2022.
Any member of the Settlement Class or authorized recipient of any
CAFA Notice may file an objection to the fairness, reasonableness,
or adequacy of the Settlement, to any term of the Settlement
Agreement, to the Plan of Allocation, to the proposed award of
attorneys' fees and litigation costs, to the payment of costs of
administering the Settlement out of the Qualified Settlement Fund,
or to the request for a Case Contribution Award for the Class
Representatives.
The objector or his, her, their or its counsel (if any) must file
or postmark the objection(s) and supporting materials with the
Court and provide a copy of the objection(s) and supporting
materials to Class Counsel and Defense Counsel at the addresses in
the Settlement Notice no later than July 1, 2022. If an objector
hires an attorney to represent him, her, them or it for the
purposes of making an objection pursuant to this Paragraph, the
attorney must also file a notice of appearance with the Court no
later than July 18, 2022.
Any member of the Settlement Class or other person who does not
timely file a written objection complying with the terms of this
Paragraph will be deemed to have waived, and will be foreclosed
from raising, any objection to the Settlement, and any untimely
objection will be barred. Any responses to objections will be filed
with the Court no later than July 26, 2022. Absent prior Court
approval, there will be no reply briefs.
Any additional briefs the Settling Parties may wish to file in
support of the Settlement will be filed no later than July 26,
2022.
Pending final determination of whether the Settlement Agreement
should be approved, the Class Representatives, every Class Member,
and the Plan are prohibited and enjoined from directly, through
representatives, or in any other capacity, commencing any action or
proceeding in any court or tribunal asserting any of the Released
Claims against the Defendant Released Parties.
The Defendants will cause notice to be disseminated consistent with
the Class Action Fairness Act of 2005 ("CAFA"), which, upon
mailing, will discharge the Defendants' obligations pursuant to
CAFA.
The Court reserves the right to continue the Fairness Hearing
without further written notice to the Class Members and also may
schedule the hearing to be done by telephone or video conference.
Order
Judge Whitney ruled that the Plaintiff's Motion for Preliminary
Approval of Class Action Settlement is granted. Accordingly, the
Plaintiff's Motion to Certify Class is denied as moot.
The Parties will take notice that the Fairness Hearing in this
matter will take place on Tuesday, Aug. 2, 2022, at 9:00 a.m., in
Courtroom #5B of the Charles R. Jonas Federal Building, 401 W.
Trade Street, in Charlotte, North Carolina.
A full-text copy of the Court's Order dated March 7, 2022, is
available at https://tinyurl.com/ytzfz4hh from Leagle.com.
COGNIZANT TECHNOLOGY: Faces Shareholder Suit in NJ Court
--------------------------------------------------------
Cognizant Technology Solutions Corporation disclosed in its Form
10-K Report for the quarterly period ended December 31, 2021, filed
with the Securities and Exchange Commission on February 16, 2022,
that it is facing a putative shareholder derivative complaint filed
in the US District Court of New Jersey in March 11, 2019 naming the
company and certain of its current and former directors and
officers at that time as defendants.
On May 14, 2019, said court approved a stipulation that (i)
consolidated this action with the putative shareholder derivative
suits that were previously filed and (ii) stayed all of these suits
pending an order on the motion to dismiss the second amended
complaint in the consolidated putative securities class action. On
August 3, 2020, lead plaintiffs filed an amended complaint. The
court extended the stay through February 14, 2022 where the company
moved to dismiss the amended complaint.
Cognizant is a professional services companies, engineering modern
business for the digital era with services including digital
services and solutions, consulting, application development,
systems integration, application testing, application maintenance,
infrastructure services and business process services.
COGNIZANT TECHNOLOGY: Settlement in Three Class Suits Gets Final OK
-------------------------------------------------------------------
Cognizant Technology Solutions Corporation disclosed in its Form
10-K Report for the quarterly period ended December 31, 2021, filed
with the Securities and Exchange Commission on February 16, 2022,
that on December 21, 2021, the US District Court of New Jersey
granted final approval of a settlement agreement with regards to
three putative securities class action complaints and entered a
judgment dismissing the consolidated putative securities class
action with prejudice.
On October 5, 2016, October 27, 2016 and November 18, 2016, three
putative securities class action complaints were filed in said
court naming Cognizant and certain of its current and former
officers at that time as defendants. These complaints were
consolidated into a single action and on April 7, 2017, the lead
plaintiffs filed a consolidated amended complaint on behalf of a
putative class of persons and entities who purchased our common
stock during the period between February 27, 2015 and September 29,
2016, naming Cognizant and certain of its current and former
officers at that time as defendants and alleging violations of the
Exchange Act, based on allegedly false or misleading statements
related to potential violations of the Foreign Corrupt Practices
Act, our business, prospects and operations, and the effectiveness
of our internal controls over financial reporting and our
disclosure controls and procedures. The lead plaintiffs sought an
award of compensatory damages, among other relief, and their
reasonable costs and expenses, including attorneys' fees.
Defendants filed motions to dismiss the consolidated amended
complaint on June 6, 2017. On August 8, 2018, the court issued an
order which granted the motions to dismiss in part, including
dismissal of all claims against then-current officers of the
Company, and denied them in part. On September 7, 2018, the company
filed a motion to certify the August 8, 2018 order for immediate
appeal to the United States Court of Appeals for the Third Circuit
pursuant to 28 U.S.C. § 1292(b). On October 18, 2018, the court
issued an order granting our motion, and staying the action pending
the outcome of our appeal petition to the Third Circuit. On October
29, 2018, the company filed a petition for permission to appeal
with the Third Circuit. On March 6, 2019, the Third Circuit denied
its petition without prejudice. In an order dated March 19, 2019,
the USDC-NJ directed the lead plaintiffs to provide the defendants
with a proposed amended complaint. On April 26, 2019, lead
plaintiffs filed their second amended complaint. Cognizant filed a
motion to dismiss the second amended complaint on June 10, 2019. On
June 7, 2020, the court issued an order denying the company's
motion to Cognizant to dismiss the second amended complaint. On
July 10, 2020, the company filed its answer to the second amended
complaint. On July 23, 2020, the DOJ filed a motion on consent for
leave to intervene and to stay all discovery through the conclusion
of the criminal proceedings in United States v. Gordon J. Coburn
and Steven Schwartz, Crim. No. 19-120 (KM), except for documents
produced by us to the DOJ in connection with those criminal
proceedings. On July 24, 2020, the court granted the DOJ's motion
and on that same day, it1 filed a motion in the USDC-NJ to certify
the June 7, 2020 order for immediate appeal to the Third Circuit
pursuant to 28 U.S.C. § 1292(b). On March 17, 2021, the USDC-NJ
issued an order denying the motion.
On September 7, 2021, the parties filed a settlement agreement that
resolved the consolidated putative securities class action
providing for a payment of $95 million to the putative class
(inclusive of attorneys' fees and litigation expenses).
On December 21, 2021, the court granted final approval of the
settlement and entered a judgment dismissing the consolidated
putative securities class action with prejudice. The deadline to
appeal the judgement was in January 20, 2022, and no appeals were
filed before that date.
Cognizant is a professional services companies, engineering modern
business for the digital era with services including digital
services and solutions, consulting, application development,
systems integration, application testing, application maintenance,
infrastructure services and business process services.
COLGATE DELI: Vera Sues Over Unpaid Minimum and Overtime Wages
--------------------------------------------------------------
Marcos Vera, Plaintiff v. Colgate Deli & Grocery Corp. d/b/a
Colgate Deli & Grocery Corp., and Mohamed "Doe," Defendants, Case
No. 1:22-cv-02058-ER (S.D.N.Y., March 12, 2022) is a class action
brought by the Plaintiff, on behalf of all other persons similarly
situated, seeking to recover from the Defendants compensation for
wages paid at less than the statutory minimum wage, unpaid wages
for overtime work, unpaid spread of hours compensation, and
liquidated damages pursuant to the Fair Labor Standards Act and the
New York Labor Law.
Plaintiff Vera has been employed at Colgate Deli & Grocery since
approximately November 1, 2017 until present. At various times
during the period of his employment by the Defendants, Mr. Vera has
been employed as a cleaner, stocker, food preparer, ordering
supplies, and cashier.
Colgate Deli & Grocery is a deli and grocery shop located in Bronx,
New York.[BN]
The Plaintiff is represented by:
Michael Samuel, Esq.
THE SAMUEL LAW FIRM
1441 Broadway Suite 6085
New York, NY 10018
Telephone: (212) 563-9884
E-mail: michael@thesamuellawfirm.com
COMMERCIAL CONDOMINIUM: Matthews Suit Seeks OT Pay Under FLSA, VOWA
-------------------------------------------------------------------
ASHLEY MATTHEWS and VERONICA MEDRANO, individually and on behalf of
all others similarly situated v. COMMERCIAL CONDOMINIUM MANAGEMENT
COMPANY, Case No. 1:22-cv-00297 (E.D. Va., March 18, 2022) is a
claim for unpaid overtime compensation in violation of the Fair
Labor Standards Act of 1938 and the Virginia Overtime Wage Act
arising out work that the Plaintiffs, and others similarly
situated, performed as employees of Defendant.
The Plaintiffs assert individual claims for unpaid regular wages
and unauthorized withholdings from wages in violation of the
Virginia Wage Payment Act. The Plaintiffs allege Defendant violated
and continues to violate the FLSA and VOWA through its practice of
not paying overtime compensation to Plaintiffs and other similarly
situated employees when they work more than 40 hours in a week.
The FLSA Collective is made up of all persons who have been
employed by Defendant as an Assistant Property Manager,
Receptionist, Accounts Payable/Receivable Assistant, Office
Manager, or in a comparable position, within three years prior to
this action's filing to the trial of this action.
Plaintiff Matthews is a resident of Virginia who was employed by
Defendant in a position called "Assistant Property Manager."
Plaintiff Matthews worked for Defendant from November 18, 2019
through January 27, 2022.
Plaintiff Medrano is a resident of Virginia who was employed by
Defendant in a position called "Receptionist" and later as an
"Accounts Payable/Receivable Assistant," also interchangeably
referred to as an "Office Manager" from October 13, 2016 through
January 28, 2022.
CCMC is a commercial real estate property management company. CCMC
manages over 100 commercial, office, and condominium associations
in the metropolitan Washington D.C. area.[BN]
The Plaintiffs are represented by:
Timothy Coffield, Esq.
COFFIELD PLC
106-F Melbourne Park Circle
Charlottesville, VA 22901
Telephone: (434) 218-3133
Facsimile: (434) 321-1636
E-mail: tc@coffieldlaw.com
CONNECTICUT GENERAL: Filing for Class Cert Bid Extended to May 6
----------------------------------------------------------------
In the class action lawsuit captioned as Issokson v. Connecticut
General Corporation, et al., Case No. 3:18-cv-30070 (D. Mass.), the
Hon. Judge Mark G. Mastroianni entered an order on motion for
extension of time as follows:
-- Motion for class certification May 6, 2022
(if any) shall be filed by:
Oppositions shall be filed by: May 27, 2022
-- Hearing on the motion for class Oct. 14, 2022;
certification will be scheduled
if the court deems it helpful to
disposition of the motion; fact
discovery other than requests for
admission shall be completed by:
-- The Plaintiff shall designate and Nov. 11, 2022
disclose expert witnesses by:
-- The Defendants shall designate and Dec. 9, 2022
disclose expert witnesses by:
-- Expert depositions shall be Jan. 6, 2023
completed by:
-- Dispositive motions (if any) Feb. 3, 2023
shall be filed by:
Oppositions shall be filed by: March 6, 2023
Hearing dispositive motions will April 21, 2023
be held on:
The nature of suit states Insurance Diversity-Breach of Contract.
Connecticut General Corporation, doing business as, Cigna, provides
insurance services.[CC]
CORECIVIC INC: Class Certification Filing Extended to June 17
-------------------------------------------------------------
In the class action lawsuit captioned as WILHEN HILL BARRIENTOS, et
al., v. CORECIVIC, INC., Case No. 4:18-cv-00070-CDL (M.D. Ga.), the
Hon. Judge Clay D. Land entered an order granting the Parties'
joint motion to extend class certification and dispositive motions
deadline from April 4, 2022 to June 17, 2022
CoreCivic, formerly the Corrections Corporation of America, is a
company that owns and manages private prisons and detention centers
and operates others on a concession basis.
A copy of the Court's order dated March 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3qcjW5U at no extra charge.[CC]
COWEN INC: Web Site Not Accessible to Blind, William Suit Says
--------------------------------------------------------------
MILTON WILLIAMS, individually and on behalf of all other persons
similarly situated, Plaintiff v. COWEN (DE), Defendant, Case No.
1:22-cv-02301-MKV (S.D.N.Y., Mar. 21, 2022) alleges violation of
the Americans with Disabilities Act.
The Plaintiff alleges in the complaint that the Defendant's Web
site, https://www.cowen.com/, is not fully or equally accessible to
blind and visually-impaired consumers, including the Plaintiff, in
violation of the ADA.
The Plaintiff seeks a permanent injunction to cause a change in the
Defendant's corporate policies, practices, and procedures so that
the Defendant's Web site will become and remain accessible to blind
and visually-impaired consumers.
COWEN (DE) operates the Cowen online financial advisor service as
well as the Cowen website and advertises, markets, and operates in
the State of New York and throughout the U.S. [BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
Jeffrey M. Gottlieb, Esq.
Dana L. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 East 18th Street, Suite PHR
New York, NY 10003
Telephone: (212) 228-9795
Facsimile: (212) 982-6284
Email: Michael@Gottlieb.legal
Jeffrey@Gottlieb.legal
Dana@Gottlieb.legal
CREDIT MANAGEMENT: Preliminary Scheduling Order Entered in Hale
---------------------------------------------------------------
In the class action lawsuit captioned as SHANE HALE v. CREDIT
MANAGEMENT, L.P., Case No. 4:21-cv-00877-SDJ (E.D. Tex.), the Hon.
Judge entered a preliminary scheduling order as follows:
-- Deadline for Plaintiffs to file March 25, 2022
amended pleadings:
-- Deadline for Defendants to file April 8, 2022
amended pleadings:
-- Deadline for Defendants to disclose April 22, 2022
expert testimony regarding class
certification issues:
-- Deadline for class certification June 10, 2022
discovery:
Credit Management is operating as a debt collection company.
A copy of the Court's order dated March 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3KZpAQu at no extra charge.[CC]
DECARBONIZATION PLUS: Caused Stockholders to OK Merger, Malork Says
-------------------------------------------------------------------
JOHN E. MALORK, on behalf of himself and all others similarly
situated, Plaintiff v. ERIK ANDERSON, JENNIFER AAKER, JANE KEARNS,
PIERRE LAPEYRE, JR., DAVID LEUSCHEN, ROBERT TICHIO, JIM McDERMOTT,
JEFFREY TEPPER, MICHAEL WARREN, RIVERSTONE INVESTMENT GROUP LLC,
WRG DCRB INVESTORS, LLC and DECARBONIZATION PLUS ACQUISITION
SPONSOR, LLC, Defendants, Case No. 2022-0260 (Del. Ch., March 18,
2022) is a class action against the Defendants for breaches of
fiduciary duties.
According to the complaint, the Defendants issued materially false
and misleading statements in support of the merger between
Decarbonization Plus Acquisition Corporation and Hyzon, which were
designed to discourage stockholders from exercising their
redemption rights. Instead, the Defendants encouraged stockholders
to approve the merger, claiming that strong consumer demand for
hydrogen fuel vehicles warranted entry into the merger and the
acquisition of Hyzon. In reality: (a) many of Hyzon's customers
were illusory; (b) Hiringa, supposedly one of Hyzon's largest
customers, was only a distributor, not a customer; (c) Hyzon's
financial projections were grossly inflated and lacked a reasonable
factual basis; and (d) Hyzon was unable to meet a material portion
of the vehicle deliverables it had promised in 2021. As a result of
the Defendants' materially false and misleading statements, the
Plaintiff and Class members were deprived of their right to a fully
informed decision whether to redeem their shares and induced
stockholders to vote to approve the merger to their detriment and
the substantial benefit of Defendants.
Riverstone Investment Group LLC is an asset management firm located
in New York, New York.
WRG DCRB Investors, LLC is an investment firm based in Delaware.
Decarbonization Plus Acquisition Sponsor, LLC is a Delaware limited
liability company and affiliate of Riverstone Investment Group LLC.
[BN]
The Plaintiff is represented by:
Peter B. Andrews, Esq.
Craig J. Springer, Esq.
David M. Sborz, Esq.
Andrew J. Peach, Esq.
Jackson E. Warren, Esq.
ANDREWS & SPRINGER LLC
4001 Kennett Pike, Suite 250
Wilmington, DE 19807
Telephone: (302) 504-4957
- and –
Samuel H. Rudman, Esq.
Mary K. Blasy, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
58 South Service Road, Suite 200
Melville, NY 11747
Telephone: (631) 367-7100
- and –
Travis E. Downs III, Esq.
Benny C. Goodman III, Esq.
Erik W. Luedeke, Esq.
Brian E. Cochran, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: (619) 231-1058
- and –
Brian J. Robbins, Esq.
Gregory E. Del Gaizo, Esq.
ROBBINS LLP
5040 Shoreham Place
San Diego, CA 92122
Telephone: (619) 525-3990
DEERE & CO: Monopolizes Repair Service Market, Casselbury Says
--------------------------------------------------------------
SAMANTHA CASSELBURY, individually and on behalf of all others
similarly situated, Plaintiff v. DEERE & CO. (d/b/a JOHN DEERE),
Defendant, Case No. 4:22-cv-04049-SLD-JEH (C.D. Ill., March 14,
2022) is brought against the Defendant for alleged violation of the
Sherman Act by monopolizing the repair service market for John
Deere brand agricultural equipment with onboard central computers
known as engine control units.
According to the complaint, Deere's monopolization of the Deere
Repair Services Market allows Deere and the Dealerships to charge
and collect supra-competitive prices for its services every time a
piece of equipment requires the Software to diagnose or complete a
repair. Consequently, Plaintiff and Class members have collectively
paid millions of dollars more for the repair services than they
would have paid in a competitive market. Allegedly, Deere's scheme
to prevent independent repairs creates additional revenue for Deere
over the entire useful life of every piece of equipment it sells.
The Plaintiff seeks declaratory and injunctive relief, treble and
exemplary damages, costs, and attorneys' fees. As for equitable
relief, Plaintiff seeks an order requiring Deere to make the
necessary Software available, at reasonable cost, to individuals
and repair shops, says the suit.
During the Class Period, Ms. Casselbury purchased Deere Repair
Services in Virginia from a John Deere dealership to diagnose and
repair Tractor malfunctions and suffered antitrust injury as a
result of Defendant's alleged conduct.
Deere & Co. is a publicly-traded company headquartered in Moline,
Rock Island County, Illinois which manufactures and distributes a
range of agricultural, construction, forestry, and commercial and
consumer equipment.[BN]
The Plaintiff is represented by:
Mindee J. Reuben, Esq.
Steven J. Greenfogel, Esq.
LITE DEPALMA GREENBERG & AFANADOR, LLC
1835 Market Street, Suite 2626
Philadelphia, PA 19096
Telephone: (267) 314-7980
E-mail: mreuben@litedepalma.com
sgreenfogel@litedepalma.com
- and -
Joseph J. DePalma, Esq.
Jeremy N. Nash, Esq.
LITE DEPALMA GREENBERG & AFANADOR, LLC
570 Broad Street, Suite 1201
Newark, NJ 07102
Telephone: (973) 623-3000
E-mail: jdepalma@litedepalma.com
jnash@litedepalma.com
- and -
Larry S. McDevitt, Esq.
David M. Wilkerson, Esq.
THE VAN WINKLE LAW FIRM
11 N. Market Street
Asheville, NC 28801
Telephone: (828) 258-2991
E-mail: lmcdevitt@vwlawfirm.com
dwilkerson@vwlawfirm.com
DEMOCRACY FORWARD: Bid for Leave to File Amicus Curiae Brief OK'd
-----------------------------------------------------------------
In the class action lawsuit captioned as William A. Jacobson v.
Mary T. Bassett, Case No. 3:22-cv-00033 (N.D.N.Y.), the Hon. Judge
Mae A D'Agostino entered an order granting motion for leave to file
an Amicus Curiae Brief regarding motion for preliminary injunction
and motion to certify class.
The Court saidd, "The Amicus Curiae Brief filed by The Democracy
Forward Foundation, is accepted for filing. The Clerk is directed
to file the Amicus Brief attached to document no. 45 as a separate
docket entry."
The suit alleges violation of the Civil Rights Act.
Democracy Forward Foundation is a 501(c)(3) non-profit and
non-partisan legal services and public policy research organization
in Washington, D.C.[CC]
DESERT FINANCIAL: 2 Questions Certified to Supreme Court in Cornell
-------------------------------------------------------------------
In the case, Eva Cornell, Plaintiff v. Desert Financial Credit
Union, et al., Defendants, Case No. CV-21-00835-PHX-DWL (D. Ariz.),
Judge Dominic W. Lanza of the U.S. District Court for the District
of Arizona certified two questions of law to the Arizona Supreme
Court:
(1) Does an effective modification of a consumer contract
occur when the offeror sends notice of the proposed
modification to the offeree, through a communication
channel to which the offeree previously consented, even if
the offeree fails to respond?
(2) If not, what additional showings (such as actual receipt
of the notice of proposed modification, subjective
understanding of the proposed modification, or affirmative
consent to the proposed modification) are necessary to
achieve an effective contract modification in this
circumstance?
I. Introduction
In this putative class action, Plaintiff Cornell alleges that
Desert Financial violated certain federal regulations that require
clear disclosure of a bank's overdraft practices. Desert Financial
has, in turn, moved to compel arbitration based on an arbitration
clause that it added to its standard terms several years after the
Plaintiff opened her account. soliciting supplemental briefing on
whether adding this clause resulted in a valid contract
modification under Arizona law, the Court concluded that "that the
most prudent course of action is to conduct further fact-finding
and then seek certification from the Arizona Supreme Court on the
unsettled legal issue that lies at the heart of the parties'
dispute."
To that end, the Court held an evidentiary hearing on March 8,
2022. The evidence presented during the hearing establishes that
the Plaintiff received, downloaded, and viewed a statement from
Desert Financial in April 2021 that contained a notice of the
change. This notice also identified the website Plaintiff could
visit to obtain more information about the change. However, the
Plaintiff did not visit the website and remained subjectively
unaware that an arbitration provision had been added.
II. Background
In October 2018, the Plaintiff applied to Desert Financial to open
a "Membership Savings" account and a "Desert Connect Checking"
account. In each application, she "agreed to the terms and
conditions of any account that I/we have applied for, and agreed
that the credit union may change those terms and conditions from
time to time." During the application process, the Plaintiff also
consented to the electronic delivery of all future communications
from Desert Financial, including all disclosures, notices, and
account statements.
When the Plaintiff opened her accounts, Desert Financial's
Statements of Terms, Conditions, and Disclosures ("Terms") did not
include an arbitration clause. She was unaware of the presence or
absence of an arbitration clause when she opened the accounts. The
Plaintiff also testified during her deposition that she would have
opened the accounts even if she had known that disputes would be
subject to arbitration.
In February 2021, Desert Financial updated its Terms to add an
arbitration clause. It did not send the new version of its Terms to
the Plaintiff (or to its other 375,000 customers). Instead, it
inserted the orange-and-blue banner on the first page of its next
cycle of monthly account statements. The banner appeared in the
Plaintiff's account statement for the period of Feb. 21, 2021
through March 20, 2021 ("the March 2021 statement"). Because the
Plaintiff had chosen to receive electronic delivery of
communications from Desert Financial, she did not receive a hard
copy of the March 2021 statement in the mail. Instead, she received
an email from Desert Financial on March 23, 2021 notifying her that
her most recent monthly statement was available.
During the early stages of the case, the Plaintiff submitted a
declaration avowing that she had never "seen" the March 2021
statement. During the evidentiary hearing, Desert Financial proved
otherwise. It is undisputed that the Plaintiff never opted out of
the arbitration provision pursuant to the opt-out process described
in the Terms.
On May 5, 2021, the Plaintiff filed the complaint. On June 24,
2021, Desert Financial moved to compel arbitration. On July 26,
2021, the Plaintiff filed a response. On Aug. 24, 2021, Desert
Financial filed a reply. On Oct. 8, 2021, the Court ordered
supplemental briefing. On Oct. 22, 2021, the parties filed their
supplemental briefs. Desert Financial included, in its supplemental
brief, a request for certification to the Arizona Supreme Court.
That same day, Desert Financial filed a motion for an evidentiary
hearing.
On Nov. 16, 2021, the Court heard oral argument. On Nov. 17, 2021,
the Court issued an order granting Desert Financial's request for
an evidentiary hearing and suggesting that certification to the
Arizona Supreme Court would be appropriate following the
evidentiary hearing. On March 8, 2022, the evidentiary hearing took
place.
III. Analysis
A. Arizona's Standard For Modification Of Consumer Contracts
In her supplemental brief, the Plaintiff argues that "Arizona law
permits modification of an already-existing contract only when
there is something more than just inquiry or constructive notice.
In fact, a unilateral attempt to modify a contract requires an
affirmative act of assent by both parties to the contract." The
primary case on which the Plaintiff relies is Demasse v. ITT Corp.,
984 P.2d 1138 (Ariz. 1999), which, according to her, holds that
"Arizona contract law of generalized application requires
affirmative assent" before a contract can be modified.
The Plaintiff also argues that three District of Arizona cases --
Vantage Mobility Int'l LLC v. Kersey Mobility LLC, 2021 WL 1610229
(D. Ariz. 2021), Rose v. Humana Ins. Co., 2018 WL 888982 (D. Ariz.
2018), and Edwards v. Vemma Nutrition, 2018 WL 637382 (D. Ariz.
2018) -- have "analyzed contract modification and determined that
proof of affirmative assent to a contract modification is
necessary." Finally, she Plaintiff argues that Sears Roebuck & Co.
v. Avery, 593 S.E.2d 424 (N.C. App. 2004), a North Carolina case
that applied Arizona law, provides further support for her
position.
Desert Financial, in contrast, argues that "no published, Arizona
decision addresses how to modify standardized consumer contracts."
Thus, it argues that Arizona courts would "follow the Restatement
of the Law" and identifies the tentative draft of Section 3 of the
Restatement of Law, Consumer Contracts as "addressing the precise
question posed" in the case and establishing that "a standard
contract term in a consumer contract" is modified if "the consumer
receives reasonable notice of the proposed modification term."
Desert Financial also points to cases from outside the
consumer-contract setting to argue that, under Arizona law,
"subjective knowledge is not required to accept an offer or modify
a contract." Finally, it argues that the Plaintiff's reliance on
Demasse is misplaced because Demasse "did not involve standardized
consumer contracts," but rather implied employment contracts, and
"employment contracts are entirely different than standardized
consumer contracts." Desert Financial concludes that "the
Restatement and virtually every court to address this issue have
thus only required `reasonable notice' to update standardized
consumer contracts, not subjective knowledge and a contrary rule
requiring subjective knowledge to update standard terms would be
untenable."
Judge Lanza has thoroughly reviewed the cases cited by the parties
and concludes that none authoritatively establishes a framework for
analyzing assent to the modification of a consumer contract under
Arizona law. The parties' supplemental briefs also contain
citations to an array of decisions by federal district courts and
other courts applying Arizona law. As an initial matter, because
those decisions simply represent attempts to discern the law the
Arizona Supreme Court would deem applicable in this circumstance,
they are not dispositive.
Additionally, many of the parties' cited cases are inapposite.
Finally, and most important, although the parties have been able to
identify certain authorities that tend to support their respective
positions, the overall takeaway is that other courts have reached
conflicting and difficult-to-reconcile conclusions about the
current state of Arizona's law of contract modification. In Judge
Lanza's view, this lack of unanimity is further evidence that the
legal issue presented in the case is unsettled and would benefit
from clarification.
B. Certification
Under Arizona Supreme Court Rule 27(a)(3), "the certification order
will set forth: (A) The questions of law to be answered; (B) A
statement of all facts relevant to the questions certified; (C) A
list of the counsel (or pro se parties) appearing in the matter,
together with their addresses and telephone numbers; (D) The
proportions in which the parties will share the required filing
fees, if such proportions are not to be equal; (E) Any other
matters that the certifying court deems relevant to a determination
of the questions certified."
In the case, Judge Lanza holds that the information required by
subdivisions (B) and (E) is set forth in earlier portions of the
Order. As for subdivision (A), he certifies two questions of law to
the Arizona Supreme Court:
(1) Does an effective modification of a consumer contract
occur when the offeror sends notice of the proposed modification to
the offeree, through a communication channel to which the offeree
previously consented, even if the offeree fails to respond?
(2) If not, what additional showings (such as actual receipt
of the notice of proposed modification, subjective understanding of
the proposed modification, or affirmative consent to the proposed
modification) are necessary to achieve an effective contract
modification in this circumstance?
As for subdivision (C), the information is as follows:
a. Counsel for Plaintiff: Cindy C. Albracht-Crogan and Kaysey
L. Fung, Cohen Dowd Quigley, 2425 East Camelback Road, Suite 1100,
Phoenix, AZ 85016, (602) 252-8400; Richard D. McCune and David C.
Wright, McCune Wright Arevalo, LLP, 3281 East Guasti Road, Suite
100, Ontario, CA 91761, (909) 557-1250; Emily J. Kirk, McCune
Wright Arevalo, LLP, 231 North Main Street, Suite 20, Edwardsville,
IL 62025, (618) 307-6116.
b. Counsel for Defendant: Brian A. Cabianca and David S.
Norris, Squire Patton Boggs (US) LLP, 1 East Washington Street,
Suite 2700, Phoenix, AZ 85004, (602) 528-4000.
As for subdivision (D), the parties will share the required filing
fees in equal proportions.
IV. Conclusion
Accordingly, Judge Lanza certified the aforementioned two questions
to the Arizona Supreme Court.
The Clerk is directed to file a certified copy of the Order with
the Arizona Supreme Court under Arizona Supreme Court Rule 27.
The action is stayed pending a response from the Arizona Supreme
Court.
A full-text copy of the Court's March 11, 2022 Order is available
at https://tinyurl.com/2p83n965 from Leagle.com.
DETROIT, MI: Court Denies Versen's Bid for Preliminary Injunction
-----------------------------------------------------------------
In the lawsuit titled ERIC VERSEN, et al., Plaintiffs v. DETROIT,
CITY OF, et al., Defendants, Case No. 21-cv-11545 (E.D. Mich.),
Judge Mark A. Goldsmith of the U.S. District Court for the Eastern
District of Michigan, Southern Division, issued an Opinion & Order
denying the Plaintiff's motion for a preliminary injunction.
Plaintiff Eric Versen brings the putative class action against
Defendants the City of Detroit and two of its employees, Police
Officer Jeremy Woods and Jana Greeno. The matter is before the
Court on Versen's motion for a preliminary injunction. The
Defendants filed a response, and the Court held a hearing on the
motion. Following the hearing, the Court gave the parties an
opportunity to file supplemental memoranda on the issue of whether
Versen has standing to seek injunctive relief. Versen filed a
supplemental memorandum.
I. Background
According to Versen, he has a practice of placing furniture and
household items in areas where indigent people can take them free
of charge. He describes this as a "charitable practice" that he
intends to continue in the future.
The City, however, does not view such practices so favorably.
Pursuant to the City's municipal code, it is a blight violation to
dump, store or deposit or cause to be dumped, stored or deposited,
on any publicly-owned property, or private property or water,
within the City any solid waste (Section 42-2-92). Section 42-1-42
empowers the police to impound vehicles "operated in the
commission" of a blight violation. To obtain release of an
impounded vehicle, the owner of the vehicle may either (i) pay all
fines, costs, and fees for the violation, or (ii) provide a copy of
a certified bond and contest the blight violation charge at a
hearing.
On May 21, 2021, Versen used his work van to place a couch in an
empty lot in the City. This incident was captured on video and
reviewed by Woods, who determined that Versen had committed a
blight violation. Three days after the incident, Woods, without a
warrant, had the van towed from the street outside Versen's home
and impounded. The next day, Greeno issued Versen a blight
violation notice. The notice informed Versen that he could either
pay a $800 fine and a $30 fee to regain possession of his van, or
he could wait to contest the charge in court on Aug. 18, 2021.
Because Versen uses the van "for his livelihood," he felt that he
could not wait nearly two months for a hearing while deprived of
his work van. As a result, Versen felt that he had no choice but to
pay the fine and fee to regain possession of his vehicle. He did
so, and also incurred towing and storage costs of several hundred
dollars. This lawsuit followed. Versen seeks declaratory relief and
monetary damages.
II. Analysis
Mr. Versen contends that the City's impounding of his vehicle was a
warrantless (and otherwise unjustified) seizure of his vehicle, in
violation of the Fourth Amendment of the U.S. Constitution. He also
argues that the Defendants violated his Fourteenth Amendment due
process rights by failing to provide him with a pre-seizure hearing
or, alternatively, a prompt postdeprivation hearing.
Accordingly, Versen asks the Court to issue a preliminary
injunction (i) enjoining the City and its agents from impounding
vehicles pursuant to Section 42-1-1, and either (ii) enjoining the
City and its agents from requiring prepayment of fines or bonds to
regain possession of an impounded vehicle, or (iii) ordering the
City to provide the owners of impounded vehicles with a hearing on
demand within four days of the impounding to challenge the legality
of the impound.
Judge Goldsmith finds that Versen lacks standing to pursue
injunctive relief. Even if Versen possessed standing, the
preliminary injunction factors favor denying his motion.
A. Standing
Judge Goldsmith holds that this case is like Price v. City of
Seattle, No. CV03-1365P, 2005 WL 8172772 (W.D. Wash. Jan. 26,
2005). Versen does not challenge the validity of the blight
ordinance's prohibition against dumping. Rather, he challenges the
manner in which the City's police officers impound an individual's
vehicle when the individual is caught using the vehicle in the
commission of a blight violation, as well as the manner in which
the City provides a hearing to challenge the charge and impound.
As a result, the only way that an individual would suffer under the
City's allegedly unlawful impound and hearing procedures is if that
individual first engages in the illegal conduct of dumping and is
caught doing so. Although Versen contends that he plans to keep
dumping furniture and other items in the future, O'Shea directs the
Court to presume that Versen will not commit further blight
violations. This presumption, coupled with the attenuated chance
that Versen will again be subjected to the City's allegedly
unconstitutional practices (as he would first need to commit a
violation, get caught doing so, and have his van impounded), compel
the Court's conclusion that Versen's alleged injury absent
injunctive relief is too speculative and, therefore, he lacks
standing to bring the instant motion for a preliminary injunction.
Mr. Versen attempts to liken this case to Alsaada v. City of
Columbus, 536 F.Supp.3d 216 (S.D. Ohio 2021), in which the district
court granted protesters' motion for a preliminary injunction
against a city and its police officers to prevent the police
officers from using excessive force against nonviolent protestors,
including preventing officers from using excessive force to enforce
traffic laws (i.e., dispel orders). However, this case is not like
Alsaada, Judge Goldsmith holds.
The Alsaada court found that the plaintiffs' risk of future harm
was non-speculative because the plaintiffs declared an intention to
continue engaging in constitutionally protected activity (i.e.,
peaceful protests of racial injustice) and produced evidence of the
defendants' ongoing, sustained pattern of using excessive force
against nonviolent protestors.
Mr. Versen does not argue that placing couches or other items in
empty lots is a course of conduct that is affected with a
constitutional interest. Further, the Alsaada plaintiffs did not
declare an intention to commit future traffic violations. Thus, the
Alsaada plaintiffs' risk of future injury was not contingent on the
plaintiffs violating the law. By contrast, Versen has declared an
intention to continue dumping items in the City and, therefore, his
risk of future injury is contingent on his committing blight
violations.
To face a future injury, Judge Goldsmith opines, Versen would need
to use his van to commit another blight violation, be caught doing
so, and have his van impounded by the police as a result. He,
therefore, lacks standing to bring the instant motion for a
preliminary injunction.
B. Preliminary Injunction
Even if Versen possessed standing, he would not be entitled to a
preliminary injunction, Judge Goldsmith holds. This burden is
considerable, as the preliminary injunction is an extraordinary
remedy involving the exercise of a very far-reaching power, which
is to be applied only in the limited circumstances which clearly
demand it, Judge Goldsmith opines, citing Leary v. Daeschner, 228
F.3d 729, 739 (6th Cir. 2000).
The circumstances that clearly demand a preliminary injunction are
the limited instances where a plaintiff shows that he or she faces
an immediate, non-speculative injury if the preliminary injunction
is not granted, Judge Goldsmith holds. For these reasons discussed
under the standing heading, Versen is unable to make this showing.
Accordingly, this is not the rare case where a preliminary
injunction is appropriate, Judge Goldsmith finds.
III. Conclusion
For these reasons, the Court denies Versen's motion for a
preliminary injunction
A full-text copy of the Court's Opinion & Order dated March 7,
2022, is available at https://tinyurl.com/44mh2e62 from
Leagle.com.
DISTRICT COUNCIL 37: Faces Gainer Suit Over Unpaid Minimum Wages
----------------------------------------------------------------
SAVIAN GAINER, ORLANDO RIVERA, JUSTINE ESPINOZA, JULIAN DEJESUS,
RAMON MARRERA, SHAWN GREY, CLAUDIA QUICK, NANCY DE DELVA, NICOLE
LAING, ANDY CAZE, ANTHONY GRAVES, NICOLE COLEMAN, and TANYA MILLER,
Individually, and on behalf of all others similarly situated,
Plaintiffs v. District Council 37 of the American Federation of
State, County & Municipal Employees, Defendant, Case No.
152133/2022 (N.Y. Sup., New York Cty., March 11, 2022) arises from
the Defendant's failure to pay proper minimum wages and failure to
post a notice summarizing minimum wage provisions in violation of
New York Labor Law and the New York Minimum Wage Act.
The Plaintiffs are all members of a labor union, the Federation of
Field Representatives/Municipal Employees Legal Services Staff
Association. Plaintiffs Gainer and Rivera were members of
FFR/MELSSA and were employed by DC37 as political legislative aides
until they were terminated on March 24, 2020. Plaintiffs Espinoza,
DeJesus, Marrera, Grey, de Delva, Laing, Caze, Graves, Coleman, and
Miller, are members of FFS/MELSSA and are currently employed by
DC37 as organizers. Plaintiff Claudia Quick is a member of
FFR/MELSSA and is currently employed by DC37 as a council
representative.
District Council 37 is a division of the American Federation of
State, County & Municipal Employees, a labor union.[BN]
The Plaintiffs are represented by:
Anne Donnelly Bush, Esq.
43 West 43rd Street, Ste. 117
New York, NY 10036-7424
Telephone: (914) 239-3601
Facsimile: (914) 219-3145
DO & CO NEW YORK: Alvarado Sues Over Improper Wage Practices
------------------------------------------------------------
TITO ALVARADO, on behalf of himself and all others similarly
situated, Plaintiff v. DO & CO NEW YORK CATERING, INC., Defendant,
Case No. 507264/2022 (N.Y. Sup., Kings Cty., March 11, 2022) arises
from the Defendant's engagement in illegal and improper wage
practices in violation of the New York Labor Law.
According to the complaint, these alleged practices include: (a)
requiring Plaintiff and similarly situated warehouse workers to
perform work without compensation during meal breaks; (b) failing
to pay warehouse workers overtime of time and one-half their
regular rate of pay for all hours worked over 40 in a week; and (c)
failing to provide accurate wage statements.
Plaintiff Alvarado was employed by the Defendant from October 2016
until August 2019.
DO & Co New York Catering Inc. operates as a restaurant. The
Company offers luxury food, salads, fruits, sandwiches, desserts,
and ice creams including event, airline catering, and lounges. DO &
Co New York Catering serves clients worldwide.[BN]
The Plaintiff is represented by:
Louis Ginsberg, Esq.
THE LAW FIRM OF LOUIS GINSBERG, P.C.
1613 Northern Boulevard
Roslyn, NY 11576
Telephone: (516) 625-0105
DONG BANG CORP: Lee Sues Over Food Service Staff's Unpaid Wages
---------------------------------------------------------------
YU JUNG LEE, individually, and on behalf of others similarly
situated, Plaintiff v. DONG BANG CORPORATION, MI JA KIM, JOO HEE
KIM and SANG KYU KIM, Defendants, Case No. 2:22-cv-01336 (D.N.J.,
March 11, 2022) is brought pursuant to the Fair Labor Standards Act
and the New Jersey Wage and Hour Law seeking to recover minimum
wages, overtime compensation, misappropriated tips, and other wages
for Plaintiff and her similarly situated co-workers who work or
have worked at Defendants' restaurant.
Ms. Lee was employed by the Defendants as a server at Dong Bang
Grill from 2007 until February 10, 2022.
Dong Bang Corp. owns and manages Dong Bang Grill Restaurant, a fine
dining restaurant, located in Fort Lee, New Jersey.[BN]
The Plaintiff is represented by:
Ryan J. 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
DREYER'S GRAND: Yu's 1st Amended Suit Dismissed With Leave to Amend
-------------------------------------------------------------------
In the case, LAUREN YU, individually and on behalf of all others
similarly situated, Plaintiff v. DREYER'S GRAND ICE CREAM, INC.,
Defendant, Case No. 20 Civ. 8512 (ER) (S.D.N.Y.), Judge Edgardo
Ramos of the U.S. District Court for the Southern District of New
York granted Dreyer's motion to dismiss, with leave to amend.
The Defendant sought dismissal of the First Amended Complaint
("FAC") pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim.
I. Background
Lauren Yu brings the putative class action against Dreyer's,
alleging that the representations on the label of certain Dreyer's
ice cream bars sold under its Haagen-Dazs brand are misleading,
because the bars' chocolate coating contains vegetable oil.
Ms. Yu seeks injunctive relief and monetary damages for: (1)
violations of Sections 349 and 350 of the New York General Business
Law ("GBL"), which prohibit deceptive business practices and false
advertising; (2) breach of express warranty; (3) breach of the
implied warranty of merchantability; (4) violation of the Magnuson
Moss Warranty Act, 15 U.S.C. Sections 2301, et seq. ("MMWA"); (5)
fraud; and (6) unjust enrichment. She brings the action on behalf
of a putative class of similarly situated individuals.
Dreyer's is a Delaware corporation with a principal place of
business in Oakland, California. It is a leading seller of premium
frozen dairy desserts under the Haagen-Dazs brand. Dreyer's sells
its Haagen-Dazs Coffee Ice Cream Dipped in Rich Milk Chocolate,
Almonds, and Toffee bars (the "Product") in tens of thousands of
stores nationwide, including warehouse club stores, supermarkets,
convenience stores, gas stations, and drug stores.
In May, June, and July of 2020, among other times, Yu, a resident
of Manhattan, purchased the Product on numerous occasions. Yu
alleges that the Product's front label is misleading because the
representation that the ice cream is "dipped in 'rich milk
chocolate,'" is false, since the addition of vegetable oil to the
chocolate coating "fundamentally changes the nature of the bar's
coating."
With respect to the Product's front label, Yu claims that since it
"represents the Product contains 'rich milk chocolate' without
qualification, consumers expect that it only has chocolate
ingredients, when this is not accurate." With respect to the
ingredient list, which indicates that the Product contains coconut
oil and vegetable oil, Yu argues that "[c]onsumers of a high-end
premium ice cream bar that claims to be dipped in 'milk chocolate'
will not be so distrustful such as to scrutinize the fine print of
the ingredient list and uncover the deception," because the label
is unambiguous.
The Product is sold at a "premium price," approximately $5.99 for a
package of three three-ounce bars. Yu contends that as a result of
the "false and misleading representations," Dreyer's sells the
Product at a higher price than other similar products represented
in a non-misleading way, and higher than it would be sold "absent
the misleading representations and omissions." She further alleges
that she, as well as the proposed class members consisting of all
purchasers of the Product who reside in New York, Virginia,
Delaware, and Maine during the applicable statutes of limitations,
would not have bought the Product or would have paid less for it if
they had known the truth. She alleges that she intends to purchase
the Product again when she can do so with the assurance that the
representations on its labeling are consistent with its
ingredients.
Ms. Yu brought the action against Froneri US, Inc., on Oct. 13,
2020. On March 5, 2021, the Defendant moved to dismiss the
complaint and noted that Yu had sued the wrong entity. Yu filed the
FAC against Dreyer's, the correct Defendant, on April 26, 2021. On
May 26, 2021, Dreyer's moved to dismiss the FAC pursuant to Rule
12(b)(6).
II. Discussion
A. New York General Business Law Claims
To state a claim under either Section 349 or Section 350, "a
plaintiff must allege that a defendant has engaged in (1)
consumer-oriented conduct that is (2) materially misleading and
that (3) plaintiff suffered injury as a result of the allegedly
deceptive act or practice."
i. Alleged Violations of Federal Regulations
As Dreyer's points out, the Food, Drug, and Cosmetic Act (the
"FDCA"), pursuant to which the United States Food and Drug
Administration (the "FDA") issues regulations, does not create a
private right of action. While Yu argues that she is not pursuing a
private action for violations of the FDCA and is instead bringing
separate claims under the New York GBL, the parties dispute whether
her GBL claims are an attempt to privately enforce FDA regulations
instead of premised on consumer protection grounds.
Drawing all inferences in Yu's favor, Judge Ramos opines that she
arguably alleges certain "free-standing claims of deceptiveness,"
separate and apart from the Product's alleged failure to comply
with the FDCA and applicable regulations. For example, Yu's
complaint includes the definitions of chocolate from
Merriam-Webster and "the Free Dicttionary," 15-year-old news
articles and comments attributed to consumers and chocolate
industry professionals relating to a 2007 industry proposal to
re-define chocolate as containing vegetable oils, quotations from
"historians of chocolate" and "Jean Hammond of Kilwin's Ice Cream
Shops," and references to "surveys" of "typical American
consumers." These allegations are arguably independent of the
alleged violations of the federal regulations. Therefore, Judge
Ramos proceeds to analyze the claims without relying on the
purported violations of the FDCA.
ii. The Product's Label
Yu argues that the phrase "rich milk chocolate" on the Product's
label is deceptive because it implies that the Product's coating
contains only cacao ingredients rather than vegetable or coconut
oil, when, in fact, the coating contains both chocolate and oils.
Judge Ramos holds that Yu fails to plausibly allege that a
reasonable consumer would conclude that the representations
regarding chocolate on the Product's label imply that the Product's
coating did not contain any coconut or vegetable oil. First, the
Product makes no representations about the ingredients constituting
the chocolate flavor, nor does it use language such as "made with"
or "contains." Second, a reasonable consumer would not be misled
into believing that the Product's coating did not contain any
vegetable oils.
iii. The Ingredient List
Judge Ramos finds that Yu's argument that the "surrounding context"
of the Product label precludes reliance on the ingredient list to
correct any allegedly misleading representations on the label
fails. He says, the Product's label accurately indicates that the
Product's coating contains chocolate. Furthermore, Yu does not
dispute that the ingredient list accurately identifies the
ingredients and discloses the presence of coconut and vegetable
oil. Therefore, as Dreyer's argues and unlike the cases relied upon
by Yu in which the product's packaging contained misleading
representations, the "ingredient list contains more detailed
information about the [P]roduct that confirms other representations
on the packaging."
iv. The Consumer Survey
To demonstrate consumer expectations, Yu claims that "surveys have
shown that typical American consumers do not expect foods or
ingredients in foods that are represented as 'chocolate' to contain
vegetable oils," and that the "percentage of customers who did not
expect vegetable oils increased significantly when the product in
question was made by Haagen-Dazs, a premium brand."
Judge Ramos has the same questions as Dreyer's: "Who conducted this
survey? What were respondents told? Did respondents see the full
package, including ingredient list?" The mysterious survey lends no
support to Yu's claims, and her opposition does not mention it.
Moreover, Yu "does not represent that the consumers in the survey
would expect the Product to contain no vegetable oil, or to contain
no other ingredients apart from chocolate made from cacao bean
ingredients."
v. Consumer Preferences
Ms. Yu further alleges that consumers generally prefer chocolate
made from cacao beans, as opposed to chocolate made with vegetable
oils, because of greater satiety, taste, "mouthfeel," and health
and nutritional benefits.
Judge Ramos opines that Yu's claims pursuant to Sections 349 and
350 of the GBL will be dismissed. He holds that (i) it is simply
not plausible that a reasonable consumer would purchase and eat
chocolate covered ice cream bars for health or nutritive benefits
or satiety value; (ii) Yu has not plausibly alleged that vegetable
oils have been used in the Product to 'replace' cacao butter; (iii)
Yu has not adequately alleged that the Product's coating has a
different taste or "mouthfeel," as the relevant allegations appear
to be based on comments from individuals in the chocolate
confectionary industry regarding chocolate candy, not chocolate
coatings; and (iv) he agrees with Dreyer's that Haagen-Dazs'
reputation has no bearing on whether Yu has stated a claim for
deception under the GBL.
B. Breach of Express Warranty
To assert a breach of express warranty claim under New York law, a
plaintiff must allege an "affirmation of fact or promise by the
seller, the natural tendency of which was to induce the buyer to
purchase and that the warranty was relied upon." Specifically, a
breach of express warranty claim must allege (1) a material
statement amounting to a warranty; (2) the buyer's reliance on this
warranty as a basis for the contract with the immediate seller; (3)
breach of this warranty; and (4) injury to the buyer caused by the
breach. Furthermore, an express warranty claim requires that "a
buyer must provide the seller with timely notice of the alleged
breach of warranty."
Judge Ramos opines that Yu's breach of express warranty claim fails
because, for the same reasons her GBL claims fail, she has not
alleged that a reasonable consumer would be misled to believe that
the Product does not contain coconut or vegetable oil. Yu has also
not pleaded notice as required to establish a breach of express
warranty claim. Her allegations, unsupported by any specific facts,
are insufficient to show that Yu provided Dreyer's timely notice of
the alleged breach. Therefore, Dreyer's motion to dismiss Yu's
claim for breach of express warranty is granted.
C. Breach of Implied Warranty of Merchantability
Under the New York Uniform Commercial Code, "a warranty that the
goods will be merchantable is implied in a contract for their sale
if the seller is a merchant with respect to goods of that kind."
"The implied warranty of merchantability is a guarantee by the
seller that its goods are fit for the intended purpose for which
they are used and that they will pass in the trade without
objection."
Judge Ramos finds that the FAC does not come close to alleging that
the Product is "unfit to be consumed." Yu's argument that she has
alleged that vegetable oils, unlike chocolate, are "linked to
numerous health problems," is conclusory and irrelevant, since
whether a food is healthful or nutritious is not the standard. Yu's
breach of the implied warranty of merchantability fails for the
independent reason that she has not alleged timely notice.
Accordingly, her claim for breach of implied warranty is
dismissed.
D. Magnuson Moss Warranty Act
The MMWA grants relief to a consumer who is damaged by the
warrantor's failure to comply with any obligation under a written
warranty. Pursuant to the MMWA, a "written warranty" is defined, in
part, as "any written affirmation of fact or written promise made
in connection with the sale of a consumer product by a supplier to
a buyer which relates to the nature of the material or workmanship
and affirms or promises that such material or workmanship is defect
free or will meet a specified level of performance over a specified
period of time."
As Dreyer's contends, the representations on the Product's label
"do not suggest that it is defect free or that it will meet a
specified level of performance over a specified period of time;
instead, they simply describe the product." Dismissal is also
warranted for the independent reason that Yu fails to oppose
Dreyer's motion to dismiss her MMWA claim.
E. Fraud
To state a claim of common law fraud under New York law, a
plaintiff must allege that the defendant made "(1) a material
misrepresentation or omission of fact; (2) which the defendant knew
to be false; (3) which the defendant made with the intent to
defraud; (4) upon which the plaintiff reasonably relied; and (5)
which caused injury to the plaintiff."
While a fraud claim may plead scienter generally, the plaintiff
"must still allege facts that give rise to a strong inference of
fraudulent intent." This inference may be established by (1)
"alleging facts to show that defendants had both motive and
opportunity to commit fraud," or (2) "alleging facts that
constitute strong circumstantial evidence of conscious misbehavior
or recklessness."
Ms. Yu's allegations fail to meet the heightened pleading standard
under Rule 9(b), Judge Ramos opines. He says, Yu's sole allegation
in support of her fraud claim is that Dreyer's "fraudulent intent
is evinced by its failure to accurately disclose these issues when
it knew not doing so would mislead consumers." This conclusory
allegation, devoid of particularized facts giving rise to an
inference of scienter, is insufficient, because "the simple
knowledge that a statement is false is not sufficient to establish
fraudulent intent, nor is a defendants' 'generalized motive to
satisfy consumers' desires o] increase sales and profits.'"
Moreover, while the existence of accurate information regarding the
product's ingredients on the package does not stymie a deceptive
labelling claim as a matter of law, it is certainly a substantial
barrier to a plaintiff seeking to plead a claim of fraud." In the
case, there is no dispute that the Product's ingredient list
accurately discloses the presence of coconut and vegetable oil in
the Product's coating. Yu's fraud claim is dismissed.
F. Unjust Enrichment
To establish a claim for unjust enrichment under New York law, the
plaintiff must allege that (1) the defendant was enriched; (2) at
the plaintiff's expense; and (3) it would be inequitable to permit
the defendant to retain what the plaintiff is seeking to recover.
As Dreyer's argues, Yu's unjust enrichment claim is duplicative of
her other claims. The entirety of her unjust enrichment claim
reads: The "Defendant obtained benefits and monies because the
Product was not as represented and expected, to the detriment and
impoverishment of the Plaintiff and the class members, who seek
restitution and disgorgement of inequitably obtained profits."
Judge Ramos holds that Dreyer's is correct that the unjust
enrichment claim is wholly premised on and duplicative of Yu's GBL
claims. Hence, Yu's unjust enrichment claim is dismissed.
G. Standing to Pursue Injunctive Relief
Ms. Yu claims that had she known the truth about the Product, she
would not have purchased it or would have paid less for it. She
further alleges that she "will purchase the Product again when she
can do so with the assurance that the Product's representations are
consistent with its representations." This conditional claim is
insufficient to establish standing to pursue injunctive relief for
either Yu herself or on behalf of the class. Judge Ramos dismisses
Yu's request for injunctive relief.
H. Leave to Amend
Ms. Yu has already amended the complaint once, after having the
benefit of reviewing the Defendant's first memorandum of law in
support of its motion to dismiss, brought on the same grounds and
making the same or similar arguments as the instant motion. While
Yu does not propose any specific amendments to cure her pleading
deficiencies, she does request leave to file a second amended
complaint should Dreyer's motion to dismiss be granted. In
accordance with the liberal spirit of Rule 15, Judge Ramos grants
leave to amend.
III. Conclusion
For the reasons he discussed, Judge Ramos granted Dreyer's motion
to dismiss. Yu may file any amended complaint by April 6, 2022. If
she does not, the case will be closed.
The Clerk of Court is respectfully directed to terminate the
motion, Doc. 23.
A full-text copy of the Court's March 15, 2022 Opinion & Order is
available at https://tinyurl.com/4jf4wv7v from Leagle.com.
DRYMAX TECHNOLOGIES: Ortega Seeks Blind's Access to Online Store
----------------------------------------------------------------
JUAN ORTEGA, individually and on behalf of all others similarly
situated, Plaintiff v. DRYMAX TECHNOLOGIES, INC., Defendant, Case
No. 1:22-cv-02235 (S.D.N.Y., March 18, 2022) is a class action
against the Defendant for violations of the Americans with
Disabilities Act and the New York City Human Rights Law.
According to the complaint, the Defendant has failed to design,
construct, maintain, and operate its website to be fully accessible
to and independently usable by the Plaintiff and other blind or
visually-impaired persons. The Defendant's website,
Drymaxsports.com, contains access barriers which hinder the
Plaintiff and Class members to enjoy the benefits of its online
goods, content, and services offered to the general public through
the website. These access barriers include, but not limited to: (a)
the screen reader fails to describe the promotional images and
other images; (b) the screen reader fails to read the social media
icon links; (c) the screen reader skips over certain text on the
page; (d) the screen reader fails to read the item description
link; and (e) the screen reader fails to read the "cart" link when
a new item is added.
The Plaintiff and Class members seek permanent injunction to cause
a change in the Defendant's corporate policies, practices, and
procedures so that the Defendant's website will become and remain
accessible to blind and visually-impaired individuals.
Drymax Technologies, Inc. is an online retail company that conducts
business in New York. [BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
Jarrett S. Charo, Esq.
William J. Downes, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, 24th Floor
New York, NY 10281
Telephone: (212) 595-6200
Facsimile: (212) 595-9700
E-mail: ekroub@mizrahikroub.com
jcharo@mizrahikroub.com
wdownes@mizrahikroub.com
EDGE WEALTH: Web Site Not Accessible to Blind, Williams Alleges
---------------------------------------------------------------
MILTON WILLIAMS, individually and on behalf of all other similarly
situated, Plaintiff v. EDGE WEALTH MANAGEMENT LLC, Defendant, Case
No. 1:22-cv-02304-MKV (S.D.N.Y., Mar. 21, 2022) alleges violation
of the Americans with Disabilities Act.
The Plaintiff alleges in the complaint that the Defendant's Web
site, https://www.edgewealth.com/, is not fully or equally
accessible to blind and visually-impaired consumers, including the
Plaintiff, in violation of the ADA.
The Plaintiff seeks a permanent injunction to cause a change in the
Defendant's corporate policies, practices, and procedures so that
the Defendant's Web site will become and remain accessible to blind
and visually-impaired consumers.
EDGE WEALTH MANAGEMENT LLC operates as a wealth management firm.
The Company provides investment advisory, insurance, risk and
portfolio management, and financial planning services to
individuals, trusts, and charitable organizations. Edge Wealth
Management serves clients in the United States. [BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
Jeffrey M. Gottlieb, Esq.
Dana L. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 East 18th Street, Suite PHR
New York, NY 10003
Telephone: (212) 228-9795
Facsimile: (212) 982-6284
Email: Michael@Gottlieb.legal
Jeffrey@Gottlieb.legal
Dana@Gottlieb.legal
EQUIFAX CREDIT: Court Adopts M&R and Dismisses Clayton Breach Suit
------------------------------------------------------------------
The U.S. District Court for the Western District of North Carolina,
Charlotte Division, adopts the Magistrate Judge's Memorandum and
Recommendation, and grants the Defendant's motion to dismiss the
lawsuit titled WELLESLEY K. CLAYTON, Plaintiff v. EQUIFAX CREDIT
INFORMATION SERVICES, LLC, Defendant, Case No.
3:19-cv-00529-RJC-DCK (W.D.N.C.).
Background
On Aug. 26, 2019, the Plaintiff filed a pro se Complaint in the
Superior Court of Mecklenburg County, North Carolina, which was
removed to this Court. The Plaintiff filed an Amended Complaint on
March 1, 2021. The Amended Complaint alleges the Defendant was
negligent in allowing the Plaintiff's data to be breached, which
breach resulted in numerous lawsuits and class actions.
According to the Amended Complaint, the Plaintiff received
documents from attorneys offering monies for his exposure but the
Plaintiff did not believe the offers were sufficient, based on, in
part, findings made by the district court in the multidistrict
litigation proceeding captioned In re: Equifax Inc. Customer Data
Security Breach Litigation, Case No. 1:17-md-2800 (N.D. Ga.) (the
"Equifax MDL"). Thereafter, the Defendant moved to dismiss the
amended complaint because the Plaintiff failed to opt out of the
class action settlement in the Equifax MDL.
Discussion
The Magistrate Judge recommended granting the Defendant's motion to
dismiss. The Plaintiff's objection states that "certain
considerations were ignored" in the M&R, but provides no specific
objections to the M&R other than citing other cases against Equifax
that are not relevant for purposes of the Defendant's motion to
dismiss.
District Judge Robert J. Conrad, Jr., holds that since the
Plaintiff failed to direct the Court to a specific error in the
M&R, de novo review is not required. Nevertheless, given the
Plaintiff's pro se status, and liberally construing his pleadings,
the Court conducted a full review of the M&R and other documents of
record.
In the Equifax MDL, Equifax and the settlement class entered into a
global settlement agreement. The settlement class is defined as:
The approximately 147 million U.S. consumers identified by
Equifax whose personal information was compromised as a
result of the cyberattack and data breach announced by
Equifax Inc. on Sept. 7, 2017.
In re Equifax Inc. Customer Data Security Breach Lit., No.
1:17-md-2800-TWT, 2020 WL 256132, at *2 (N.D. Ga. Mar. 17, 2020).
The settlement agreement released the claims related to the data
breach that could have been asserted in the Equifax MDL. The order
approving the Equifax MDL settlement agreement was appealed and
almost entirely affirmed by the Eleventh Circuit, see In re Equifax
Inc., 999 F.3d 1247 (11th Cir. June 3, 2021). The United States
Supreme Court denied certiorari.
The Plaintiff did not opt out of the settlement class. Neither the
Plaintiff's response to the Defendant's motion to dismiss nor his
objection claim that he opted out of the settlement class. Rather,
in response to the Defendant's motion to dismiss, the Plaintiff
challenged whether he received proper notice of his rights in the
Equifax MDL.
The Magistrate Judge concluded those issues should be raised with
the court for the Equifax MDL, not this Court. The Court agrees.
Plaintiff's case will be dismissed for failing to opt out of the
settlement class in the Equifax MDL. Any concerns Plaintiff has
with the Equifax MDL settlement agreement, including whether he
received proper notice, should be raised with the Equifax MDL
court.
Conclusion
Accordingly, Judge Conrad ruled that the Magistrate Judge's
Memorandum and Recommendation is adopted. The Defendant's motion to
dismiss is granted.
This case is dismissed without prejudice. The Clerk of Court is
directed to close this case.
A full-text copy of the Court's Order dated March 7, 2022, is
available at https://tinyurl.com/4ped7f3u from Leagle.com.
FAMILY DOLLAR: Brown Files Suit Over Sanitation Issue
-----------------------------------------------------
KIMBERLY BROWN, individually and on behalf of all others similarly
situated, Plaintiffs v. FAMILY DOLLAR, INC. and DOLLAR TREE, INC.,
Defendants, Case No. 2:22-cv-00040-BSM (E.D. Ark., March 10, 2022)
arises from the Defendants' negligent, reckless, and/or intentional
practice of selling products that may be contaminated by virtue of
a rodent infestation and other unsanitary conditions in stores
throughout Arkansas, Louisiana, Mississippi, Alabama, Tennessee,
and Missouri.
The Defendants sell groceries and household goods at discounted
prices in stores throughout the United States including
over-the-counter medications, medical devices, dietary supplements,
cosmetics, human food, and pet food.
According to the complaint, the Defendants omitted information
regarding the rodent infestation from all advertising, promotion,
or other contacts with Plaintiffs and members of the Classes prior
to their purchase of the products and continued to ship the
products to its stores from the warehouse. By knowingly failing to
disclose the rodent infestation and associated risk of
contamination to consumers and by failing to correct the problem,
Plaintiffs and the Classes purchased products of a lesser standard,
grade and quality represented that do not meet ordinary and
reasonable consumer expectations regarding the quality or value of
the products and are unfit for their intended purpose. Moreover,
the contamination associated with the rodent infestation poses a
health risk to consumers that used or handled the products, says
the suit.
Plaintiff Brown purchased human food, dog food, cosmetics, dental
products, over the counter medication, feminine products, and eye
drops from Family Dollars located in Arkansas.[BN]
The Plaintiff is represented by:
James D. Robertson, Esq.
Jerry D. Garner, Esq.
BARBER LAW FIRM PLLC
425 West Capitol Avenue, Suite 3400
Little Rock, AR 72201
Telephone: (501) 707-6125
E-mail: jrobertson@barberlawfirm.com
jgarner@barberlawfirm.com
- and -
Gregory W. Aleshire, Esq.
ALESHIRE ROBB, P.C.
284 7 Ingram Mill Road - A102
Springfield, MO 65804
Telephone: (417) 869-3737
FANNIE MAE: Court Junks Securities Suits in D.C
-----------------------------------------------
Federal National Mortgage Association (doing business as Fannie
Mae) 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 it is a defendant in two
cases pending in the U.S. District Court for the District of
Columbia, including a consolidated class action. In both cases,
Fannie Mae stockholders filed amended complaints on November 1,
2017. On September 28, 2018, the court dismissed all of the
plaintiffs' claims in these cases, except for their claims for
breach of an implied covenant of good faith and fair dealing. Both
cases, and a third case that was voluntarily dismissed on November
18, 2021.
Fannie Mae is a source of financing for mortgages in the United
States, with $4.2 trillion in assets as of December 31, 2021.
Organized as a government-sponsored entity, Fannie Mae is a
shareholder-owned corporation with its charter is an act of
Congress, which establishes that its purposes to provide liquidity
and stability to the residential mortgage market and to promote
access to mortgage credit.
FANNIE MAE: Dismissal of Shareholder Suit Under Appeal
------------------------------------------------------
Federal National Mortgage Association (doing business as Fannie
Mae) 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 a shareholder suit filed in
June 1, 2017 by preferred and common stockholders of Fannie Mae in
the U.S. District Court for the Western District of Michigan is
currently on appeal. Plaintiffs filed a complaint for declaratory
and injunctive relief and filed a motion for summary judgment on
October 6, 2017.
On September 8, 2020, the court denied plaintiffs' motion for
summary judgment and granted defendants' motion to dismiss. The
plaintiffs filed a notice of appeal with the U.S. Court of Appeals
for the Sixth Circuit on October 27, 2020.
Fannie Mae is a source of financing for mortgages in the United
States, with $4.2 trillion in assets as of December 31, 2021.
Organized as a government-sponsored entity, Fannie Mae is a
shareholder-owned corporation with its charter is an act of
Congress, which establishes that its purposes to provide liquidity
and stability to the residential mortgage market and to promote
access to mortgage credit.
FANNIE MAE: Shareholder Suit Remanded to District Court
-------------------------------------------------------
Federal National Mortgage Association (doing business as Fannie
Mae) 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 preferred and common
stockholders of Fannie Mae filed a complaint for declaratory and
injunctive relief in the U.S. District Court for the District of
Minnesota. The court dismissed the case on July 6, 2018. On October
6, 2021, the U.S. Court of Appeals for the Eighth Circuit affirmed
in part and reversed in part the district court's ruling and
remanded the case to the district court to determine whether the
stockholders suffered compensable harm and are entitled to
retrospective relief.
Fannie Mae is a source of financing for mortgages in the United
States, with $4.2 trillion in assets as of December 31, 2021.
Organized as a government-sponsored entity, Fannie Mae is a
shareholder-owned corporation with its charter is an act of
Congress, which establishes that its purposes to provide liquidity
and stability to the residential mortgage market and to promote
access to mortgage credit.
FB HOSPITALITY: Harrington Seeks Bartenders' Unpaid Minimum Wages
-----------------------------------------------------------------
Brendan Harrington, individually and on behalf of all others
similarly situated, Plaintiff v. FB Hospitality, LLC; Brooklyn
Winery LLC; DC Winery, LLC; and Chicago Winery, LLC, collectively
d/b/a First Batch Hospitality; Brian Leventhal; and John Stires,
individually, Defendants, Case No. 1:22-cv-00689 (D.D.C., March 14,
2022) arises from the Defendants' unlawful policy and practice of
paying all their employee servers and bartenders, including
Plaintiff, sub-minimum hourly wages under the tip credit in
violation of the Fair Labor Standards Act and the District of
Columbia Minimum Wage Revision Act.
Brendan Harrington is an individual and resident of Washington, DC.
He was employed by the Defendants as a bartender within the
three-year period preceding the filing of this lawsuit.
FB Hospitality, LLC operates restaurants and wineries with
locations in New York, the District of Columbia, and Illinois.[BN]
The Plaintiff is represented by:
Michelle Cassorla, Esq.
Harold L. Lichten, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston St., Suite 2000
Boston, MA 02116
Telephone: (617) 994-5800
E-mail: mcassorla@llrlaw.com
hlichten@llrlaw.com
- and -
Drew N. Herrmann, Esq.
Pamela G. Herrmann, Esq.
Allison H. Peregory, Esq.
HERRMANN LAW, PLLC
801 Cherry St., Suite 2365
Fort Worth, TX 76102
Telephone: (817) 479-9229
Facsimile: (817) 840-5102
E-mail: drew@herrmannlaw.com
pamela@herrmannlaw.com
aperegory@herrmannlaw.com
FIRSTENERGY CORP: Consolidated RICO Case Stayed
-----------------------------------------------
Firstenergy Corp. disclosed in its Form 10-K Report for the
quarterly period ended December 31, 2021, filed with the Securities
and Exchange Commission on February 16, 2022, that a consolidated
multi-district litigation composed of "Smith v. FirstEnergy Corp.
et al.," "Buldas v. FirstEnergy Corp. et al." and "Hudock and Cameo
Countertops, Inc. v. FirstEnergy Corp. et al," filed in July 27,
2020, July 31, 2020, and August 5, 2020, respectively in the U.S.
District Court for the Southern District of Ohio was stayed after
the court granted the motion on December 29, 2021.
Purported customers of FE filed putative class action lawsuits
against FE and FESC, as well as certain current and former FE
officers, alleging civil Racketeer Influenced and Corrupt
Organizations Act (RICO) violations and related state law claims.
The court denied FE's motions to dismiss and stay discovery on
February 10 and 11, 2021, respectively, and the defendants
submitted answers to the complaint on March 10, 2021. The
plaintiffs moved to certify the case as a class action on June 28,
2021, and moved for leave to amend the complaint to add FES as a
defendant on September 27, 2021. The court granted the motion to
amend on November 10, 2021. On November 9, 2021, the court issued
an order granting Plaintiffs' motion for class certification, but
vacated that order on November 19, 2021, to allow defendants to
take the named plaintiffs' depositions and to file an opposition to
the motion, which they filed on December 14, 2021. On November 19,
2021, FE and FESC moved for judgment on the pleadings. One of the
individual defendants moved to dismiss the amended complaint on
November 24, 2021.
On December 28, 2021, the parties jointly moved the court to stay
consideration of the pending motions for class certification, to
dismiss, and for judgment on the pleadings for 45 days. The court
granted the motion on December 29, 2021, and the cases are
currently stayed.
FE and its subsidiaries are principally involved in the
transmission, distribution, and generation of electricity.
FIRSTENERGY CORP: Settlement Talks Over Emmons RICO Suit Underway
-----------------------------------------------------------------
Firstenergy Corp. disclosed in its Form 10-K Report for the
quarterly period ended December 31, 2021, filed with the Securities
and Exchange Commission on February 11, 2022, that it is engaged
with the parties in settlement discussions with regards to the case
captioned "Emmons v. FirstEnergy Corp. et al." (Common Pleas Court,
Cuyahoga County, OH, August 4, 2020).
A purported customer of FirstEnergy filed a putative class action
lawsuit against FE and its subsidiaries alleging several causes of
action, including negligence and/or gross negligence, breach of
contract, unjust enrichment, and unfair or deceptive consumer acts
or practices.
On October 1, 2020, plaintiffs filed a First Amended Complaint,
adding as a plaintiff a purported customer of FirstEnergy and
alleging a civil violation of the Ohio Corrupt Activity Act and
civil conspiracy against FE.
On May 4, 2021, the court granted the defendants' motion to dismiss
plaintiffs' breach of contract claims and denied the remainder of
the motions to dismiss. The defendants submitted answers to the
complaint on June 1, 2021. Discovery is proceeding.
On December 30, 2021, the plaintiff filed a Second Amended
Complaint removing one of the named plaintiffs and updating the
class definition.
Said lawsuit was consolidated in S.D. Ohio alleging, among other
things, civil violations of the Racketeer Influenced and Corrupt
Organizations Act (RICO).
FOREVER YOUNG: Faces Mota Suit Over Alleged Telephonic Sales Calls
------------------------------------------------------------------
BARBARA MOTA, individually and on behalf of all others similarly
situated v. FOREVER YOUNG MEDSPA LLC, Case No. CACE-22-004077 (Fla.
Cir., Broward Cty.,, March 17, 2022) contends that the Defendant
promotes and markets its merchandise, in part, by placing
unsolicited telephone messages to wireless phone users, in
violation of the Florida Telephone Solicitation Act.
The Defendant is a medical spa that provides surgical and
non-surgical aesthetic treatments, procedures, and products.
To promote its goods and services, the Defendant allegedly engages
in telephonic sales calls to consumers without having secured prior
express written consent as required by the FTSA. The Defendant's
telephonic sales calls have caused Plaintiff and the Class members
harm, including violations of their statutory rights, statutory
damages, annoyance, nuisance, and invasion of their privacy.
Through this action, the Plaintiff seeks an injunction and
statutory damages on behalf of herself and the Class members, as
defined below, and any other available legal or equitable remedies
resulting from the unlawful actions of the Defendant, says the
suit.[BN]
The Plaintiff is represented by:
Andrew J. Shamis, Esq.
Garrett 0. Berg, Esq.
SHAMIS & GENTILE P.A.
14 NE 1st Ave., Suite 705
Miami, FL 33132
Telephone: 305-479-2299
E-mail: ashamis@shamisgentile.com
gberg@shamisgentile.com
- and -
Scott Edelsberg, Esq.
Christopher Gold, Esq.
EDELSBERG LAW, P.A.
20900 NE 30th Ave., Suite 417
Aventura, FL 33180
Telephone: (786) 289-9471
Facsimile: (786) 623-0915
E-mail: scott@edelsberglaw.com
chris@edelsberglaw.com
FREEPORT-MCMORAN: Faces Putative Class Suit in NJ Court
-------------------------------------------------------
Freeport-McMoRan 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 it is facing a
putative class action in the Superior Court of New Jersey.
On January 30, 2017, case docketed "Juan Duarte, Betsy Duarte and
N.D., Infant, by Parents and Natural Guardians Juan Duarte and
Betsy Duarte, Leroy Nobles and Betty Nobles, on behalf of
themselves and all others similarly situated v. United States
Metals Refining Company (USMR), Freeport-McMoRan Copper & Gold Inc.
and Amax Realty Development, Inc.," Docket No. 734-17, against
USMR, Freeport-McMoRan and Amax Realty Development, Inc. The
defendants removed this litigation to the U.S. District Court for
the District of New Jersey, where it remains pending, and FMC was
added as a defendant. The suit alleges that USMR, an indirect
wholly owned subsidiary of Freeport-McMoRan, generated and disposed
of smelter waste at the site and allegedly released contaminants
on-site and off-site through discharges to surface water and air
emissions over a period of decades and seeks unspecified
compensatory and punitive damages for economic losses, including
diminished property values, additional soil investigation and
remediation and other damages. In January 2020, the parties
completed briefing on the plaintiffs' motion for class
certification. The judge indicated in late 2021 that the plaintiffs
may submit rebuttal expert reports, which will likely result in
additional discovery and refiling of a new briefing on class
certification.
Freeport-McMoRan is an international mining company with
headquarters in Phoenix, Arizona.
GEMINI TRUST: Fails to Secure Consumers' IRAs, Griffin Suit Claims
------------------------------------------------------------------
MARSHALL GRIFFIN, individually and on behalf of all others
similarly situated, Plaintiff v. GEMINI TRUST COMPANY, LLC, and IRA
FINANCIAL TRUST COMPANY, Defendants, Case No. 3:22-cv-01747-AGT
(C.D. Cal., March 17, 2022) is a class action against the Defendant
for negligence, negligence per se, and breach of implied contract.
The case arises from the Defendant's failure to adequately secure
and safeguard the individual retirement accounts (IRAs) of the
Plaintiff and similarly situated consumers following a cyber-attack
at IRA Financial in or around February 2022. In addition, the
Defendants and their employees failed to properly monitor the
computer network and systems that maintained the IRAs. Had the
Defendants properly monitored their property, they would have
discovered the intrusion sooner. The data breach reportedly
resulted in at least $36 million in crypto currency stolen from
Class members' IRAs, including Plaintiff who lost 2 Bitcoins worth
approximately $85,000.
Gemini Trust Company, LLC is a cryptocurrency exchange with its
principal place of business at 600 Third Avenue, 2nd Floor, New
York, New York.
IRA Financial Trust Company is a financial services company, with
its principal place of business at 5024 S. Bur Oak Place, Suite
200, Sioux Falls, South Dakota. [BN]
The Plaintiff is represented by:
Alex R. Straus, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
280 S. Beverly Drive
Beverly Hills, CA 90212
Telephone: (917) 471-1894
Facsimile: (865) 522-0049
E-mail: astraus@milberg.com
- and –
Gary M. Klinger, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
227 W. Monroe Street, Suite 2100
Chicago, IL 60630
Telephone: (847) 208-4585
E-mail: gklinger@milberg.com
GENERAL MOTORS: Hammerschmidt Appeals Airbag Defect Suit Dismissal
------------------------------------------------------------------
Plaintiffs Joseph Hammerschmidt, et al., filed an appeal from a
court ruling entered in the lawsuit styled JOSEPH HAMMERSCHMIDT,
individually and on behalf of all others similarly situated,
Plaintiff v. GENERAL MOTORS, LLC, Defendant, Case No.
0:20-cv-01773-DWF-BRT, in the U.S. District Court for the District
of Minnesota.
As reported in the Class Action Reporter, this lawsuit was filed on
August 14, 2020 against the Defendant for breach of implied
warranty of merchantability, fraudulent omission, and violations of
the Minnesota Prevention of Consumer Fraud Act, the False Statement
in Advertising Act, and the Unfair and Deceptive Trade Practices
Act.
According to the complaint, the Defendant manufactured, marketed
and sold or leased the 2010 through 2011 Chevrolet Camaro vehicles
in the United States with design or manufacturing defects in their
airbag systems. The defect can cause the right front passenger
frontal airbag to fail to deploy when it otherwise should which
presents a grave safety hazard to consumers, including the
Plaintiff, in an event of a crash. Despite numerous reports about
the airbag defect, the Defendant failed to notify consumers about
it, failed to offer to fix the problem, or to reimburse consumers
who have incurred damages as a result of it.
Had Plaintiff and Class Members known about the defect, they would
not have purchased the Class Vehicles or would have paid less for
them. As a result of their reliance on the Defendant's omissions
and/or misrepresentations, owners and/or lessees of the Class
Vehicles have suffered ascertainable loss of money, property,
and/or loss in the value of their Class Vehicles.
On June 25, 2021, the Defendant filed a motion to dismiss for
failure to state a claim which the Court granted on February 3,
2022, through a Memorandum Opinion and Order signed by Judge
Donovan W. Frank. The Order stated that Plaintiffs' claims in the
consolidated class action complaint are dismissed with prejudice.
GM's motion to strike nationwide class allegations in the
consolidated class action complaint was denied as moot.
The Plaintiffs now seek a review of the order.
The appellate case is captioned as Joseph Hammerschmidt, et al. v.
General Motors LLC, Case No. 22-1511, in the United States Court of
Appeals for the Eighth Circuit, filed on March 11, 2022.
The briefing schedule in the Appellate Case states that:
-- Transcript is due on or before April 20, 2022;
-- Appendix is due on May 2, 2022;
-- BRIEF APPELLANT, Joseph Hammerschmidt and Edward Jackson is
due on May 2, 2022; and
-- Appellee brief is due 30 days from the date the court issues
the Notice of Docket Activity filing the brief of appellant.[BN]
Plaintiffs-Appellants Joseph Hammerschmidt and Edward Jackson,
individually and on behalf of all others similarly situated, are
represented by:
Garrett D. Blanchfield, Jr.
Brant D. Penney, Esq.
REINHARDT & WENDORF
W1050 First National Bank Building
332 Minnesota Street
Saint Paul, MN 55101-0000
Telephone: (651)- 287-2100
E-mail: g.blanchfield@rwblawfirm.com
b.penney@rwblawfirm.com
- and -
Marc L. Godino, Esq.
Danielle L. Manning, Esq.
GLANCY & PRONGAY
1925 Century Park, E., Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
E-mail: mgodino@glancylaw.com
dmanning@glancylaw.com
- and -
Mark S. Greenstone, Esq.
GREENSTONE LAW FIRM
1925 Century Park, E., Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
E-mail: mgreenstone@greenstonelaw.com
- and -
Charles L. Williams, Esq.
WILLIAMS & SKILLING
7104 Mechanicsville Turnpike, Suite 204
Mechanicsville, VA 23111
Telephone: (804) 447-0307
Defendant-Appellee General Motors LLC is represented by:
Marjan A. Batchelor, Esq.
MAYER & BROWN
71 S. Wacker Drive
Chicago, IL 60606-0000
Telephone: (312) 701-7863
- and -
Daniel E. Jones, Esq.
Archis Ashok Parasharami, Esq.
MAYER & BROWN
1999 K Street, N.W.
Washington, DC 20006-1101
Telephone: (202) 263-3000
E-mail: djones@mayerbrown.com
aparasharami@mayerbrown.com
- and -
John Nadolenco, Esq.
MAYER & BROWN
350 S. Grand Avenue, 25th Floor
Los Angeles, CA 90071-1503
Telephone: (213) 229-5173
E-mail: jnadolenco@mayerbrown.com
GENERAL MOTORS: S.D. Ohio Denies Bid to Dismiss Riley Class Suit
----------------------------------------------------------------
In the case, MARK RILEY, on behalf of himself and all others
similarly situated, Plaintiff v. GENERAL MOTORS, LLC, Defendant,
Case No. 2:21-cv-00924 (S.D. Ohio), Judge Algenon L. Marbley of the
U.S. District Court for the Southern District of Ohio, Eastern
Division, issued an Opinion and Order:
1. denying GM's Motion to Dismiss; and
2. granting GM's Motion to Strike Plaintiff's request for
Punitive Damage.
I. Background
On June 15, 2017, Mark Riley purchased a new 2017 GMC Acadia from
an authorized General Motors dealership in Columbus, Ohio. That
dealer assured Riley that his Acadia was defect free and under GM's
New Vehicle Limited Warranty. Soon after his purchase, however,
Riley began experiencing problems with his new vehicle.
Up to six times per week, Riley had trouble parking his Acadia.
When Riley shifted his Acadia into the "Park" gear, his vehicle
often flashed an error signal in the instrument panel. This signal
indicated that the vehicle was not in "Park" when, in fact, Riley
had moved the shifter to the "Park" position. Importantly, when the
vehicle was unable to detect that it was in "Park," it could
neither be shut off nor locked. To solve this problem, Riley
developed some practical solutions: he wiggled the shifter; shifted
through gears; or turned the engine on and off. After performing
one or more of these techniques, Riley's Acadia would eventually
recognize the vehicle as "Parked."
In addition to addressing the problem on his own, Riley also
alerted the GM dealer from which he purchased the vehicle. In
response, the dealer's service advisor represented to Riley that
although there was no recall then, GM was aware of the issue. On
two subsequent occasions, Riley repeated his initial complaint to
the same GM dealer. Finally, on Nov. 1, 2018, Riley, through
counsel, complained directly to GM about the shifter issue.
Approximately 14 months later in January 2020, Riley tried his luck
with a different authorized GM dealer. By then, GM had issued a
Technical Service Bulletin that purportedly addressed the shifter
problem: TSB, No. 19-NA-206. This second dealership worked on
Riley's Acadia pursuant to TSB, No. 19-NA-206. Despite this effort,
Riley's Acadia continued to experience the shifter problem as late
as Jan. 27, 2021.
The Plaintiff filed his putative class action Complaint on March 4,
2021, alleging breaches of contract and warranty arising from the
sale or lease of certain GM vehicles. On May 7, 2021, the Defendant
filed its Motion to Dismiss. It seeks dismissal on a number of
bases.
First, the Defendant moves to dismiss or stay the case sub judice
pending the outcome of a related action against GM -- Napoli-Bosse
v. Gen. Motors LLC, 453 F.Supp.3d 536 (D. Conn. 2020) -- under the
first-to-file rule. That case seeks a nationwide class action and
various state sub-classes covering a subset of the vehicles at
issue in the present case. Next, the Defendant also moves to
dismiss for failure to state a claim under Rule 12(b)(6). Further,
asserting a lack of subject matter jurisdiction under Rule
12(b)(1), the Defendant seeks to limit the scope of the putative
class to those who purchased or leased the exact same vehicle model
and manufacturing year as purchased by the Plaintiff. Additionally,
in the event any of the Plaintiff's claims survive its Motion to
Dismiss, the Defendant moves to strike the Plaintiff's request for
punitive damages.
The Plaintiff timely filed his Response in Opposition, and the
Defendant timely filed its Reply. Finally, the Plaintiff filed a
Notice of Supplemental Authority. Thus, the Defendant's motion is
now ripe for review.
II. Law & Analysis
The Defendant moves to dismiss or stay the action based on the
first-to-file rule. Alternatively, it moves to dismiss the
Plaintiff's Complaint for a failure to state a claim upon which
relief can be granted. In the event the Plaintiff's claims survive
its Motion to Dismiss, the Defendant moves to strike the
Plaintiff's request for punitive damages. Finally, the Defendant
moves to dismiss the Plaintiff's claims based on vehicles distinct
from the one he purchased based on subject matter jurisdiction.
A. Motion to Dismiss or Stay under First-to-File Rule
Courts examine three factors in determining whether to apply the
first-to-file rule: "(1) the chronology of events, (2) the
similarity of the parties involved, and (3) the similarity of the
issues or claims at stake." If these factors are met, then "the
court must also determine whether any equitable considerations,
such as evidence of 'inequitable conduct, bad faith, anticipatory
suits, or forum shopping,' merit not applying the first-to-file
rule in a particular case."
Regarding the chronology of events, the Court looks to the
respective filing dates of the complaints in question. The
Defendant notes that it is undisputed that Napoli-Bosse was filed
before Riley. Consistent with the Defendants' assertion, the
Plaintiff offers no response. Accordingly, Judge Marbley holds that
this factor weighs in favor of applying the first-to-file rule.
Next, considering the similarities of the parties involved in the
cases, Judge Marbley finds that (i) the Defendant in the present
case is exactly the same as the Defendant in Napoli-Bosse: General
Motors LLC; (ii) the Plaintiffs in each case are neither wholly
identical nor distinct, instead they overlap; and (iii) the
putative classes in the present cae and in Napoli-Bosse differ on
two grounds, one more important than the other: (1) geographic
scope; and (2) the definition of the Class Vehicle.
Finally, Judge Marbley rejects the Defendant's assertion that the
issues or claims at stake are sufficiently similar. He finds that
the claims substantively distinct.
Hence, determining that they weigh against application of the
first-to-file rule, the Motion to Dismiss on this basis is denied.
B. Motion to Dismiss under 12(b)(6)
1. Breach of Express Warranty
The Plaintiff alleges that the New Vehicle Limited Warranty that
accompanied his Acadia is an express warranty under Ohio law and
that Defendant breached that warranty. The Defendant argues that
the Plaintiff fails to state a claim for breach of warranty for
several reasons. First, according to the Defendant, the Limited
Warranty is not an express warranty. Second, the Plaintiff does not
allege a defect that would be covered by the warranty. Third, the
Plaintiff has not adequately alleged a breach. Finally, the
Plaintiff does not adequately allege "pre-suit notice," a required
element under Ohio law. The Plaintiff rejoins each of the
Defendant's points.
Judge Marbley holds that (i) under Ohio Revised Code section
1302.26, courts have repeatedly recognized "repair-and-replace"
warranties as express warranties; (ii) the Plaintiff has
sufficiently pleaded that the Defendant did not repair or replace
within a reasonable time as required by the express warranty; (iii)
the Plaintiff has adequately pleaded a pre-suit notice; and (iv)
the Defendant does not assert that the Plaintiff failed to allege
he "suffered injury as a result of the defect" as required under
Ohio law. For these reasons, the Defendant's Motion to Dismiss this
claim is denied.
2. Breach of Contract
The Defendant argues that the Plaintiff has failed to state a
breach of contract claim for two primary reasons: (1) the parties
are not in privity; and (2) the claim is duplicative of its express
warranty claim. As a threshold matter, the Plaintiff is not clear
about what contract it entered into with the Defendant. He states
"in connection with the sale or lease of the Class Vehicles, the
Plaintiff and the class members entered into written contracts with
the Defendant."
Because the Plaintiff alleges that he purchased his vehicle from an
authorized dealer and not GM directly, he would need to allege that
the dealer was an agent of GM. Absent this allegation, the
Plaintiff's breach of contract claim quickly falls apart. Yet, if
the Plaintiff's breach of contract claim is exclusively about the
limited warranty, according to the Defendant, it suffers from a
different problem: It is duplicative of its express warranty claim.
As discussed under the final factor under Baatz v. Columbia Gas
Transmission, LLC, 814 F.3d 785, 789 (6th Cir. 2016) -- similarity
of issues, the Plaintiff's claims are not duplicative. The
Plaintiff's argument demonstrating that pleading in the alternative
is his right under Rule 8(a) is enough to overcome the Defendant's
contention.
Finally, the contract at issue is the limited warranty. This
conclusion renders Defendant's privity argument irrelevant.
Accordingly, the Defendant's Motion to Dismiss the Plaintiff's
breach of contract claim based on either privity or surplusage is
denied.
3. Breach of the Implied Warranty of Merchantability
The Plaintiff, in a footnote, purports to withdraw his claim for
breach of the implied warranty of merchantability. Accordingly,
Judge Marbley construes the Plaintiff's withdraw as amending its
Complaint as a matter of course which he is entitled to do once
under Rule 15(a). Moreover, this is specifically contemplated by
the 2009 amendments of Rule 15(a). Thus, the Plaintiff's claim for
breach of the implied warranty of merchantability is dismissed
without prejudice.
4. Breach of Warranty under the Magnuson Moss Act
First, "the Magnuson-Moss Warranty Act ("MMWA") is a vehicle to
assert state law breach of warranty claims in federal court.
Because "the MMWA does not create a unique federal warranty, 'to
the extent the state-law express and implied warranty claims
survive dismissal, so does the MMWA claim.'" Therefore, because the
Plaintiff has sufficiently pled his breach of express warranty
claim, he also satisfies the pleading requirement of MMWA. As such,
the Defendant's Motion to Dismiss the MMWA claim is denied.
C. Motion to Strike Plaintiff's Request for Punitive Damages
The Defendants also move to strike under Federal Rule of Civil
Procedure 12(f). Relying on Atsco Holdings Corp. v. Air Tool
Service Co., CASE NO. 1:15CV1586, 2016 WL 3078902, at *2 (N.D. Ohio
June 1, 2016) and Harwood v. Avaya Corp., No. C2-05-828, 2007 WL
1598065, at *1 (S.D. Ohio May 31, 2007), the Defendant argues that
the Court can and should strike requests for punitive damages
absent a tort or fraud-based claim. Moreover, according to them,
without assertions of "demonstrated malice or aggravated or
egregious fraud," the Plaintiff cannot recover punitive damages.
The Plaintiff contends that punitive damages are available in
limited circumstances in a claim for breach of warranty, citing
Complete. Moreover, he argues that it cannot be determined at this
stage of the litigation whether he asserts no basis for the
recovery of punitive damages.
Judge Marbley holds that the Plaintiff asserts no additional facts
that suggest GM's alleged breach of contract and warranties amount
to an independent tort. Moreover, to the extent Plaintiff unearths
evidence of such conduct in discovery, he may always seek to amend
his Complaint. Accordingly, the Defendant's Motion to Strike is
granted.
D. Motion to Dismiss under 12(b)(1)
The Defendant contends that some of the Plaintiff's claims must be
dismissed for lack of subject matter jurisdiction. It maintains
that because the Plaintiff has not asserted facts that suggest that
he has been injured by any of the Class Vehicles other than his
own, his claims cannot satisfy the standing requirement.
The Plaintiff responds by offering a different standard and
asserting that it is inappropriate to consider the Defendant's
motion on this basis at this stage. According to him, all that is
required of the named-Plaintiff to satisfy standing is to plead
substantial similarity between the product he purchased and the
others he did not. He relies primarily on Hawes v. Macy's Inc., 346
F.Supp.3d 1086, 1091 (S.D. Ohio 2018) for this proposition.
Judge Marbley opines that the facts are quite similar to Hawes.
Named-Plaintiff Riley purchased a product from GM that he alleges
suffers from a discrete issue: Shifter malfunction. Moreover, he
purports to represent unnamed class members who also purchased (or
leased) similar products (vehicles) from authorized dealerships (a
similar retailer) made by the same manufacturer (GM). Furthermore,
as relied on in Hawes, courts have noted that it is not clear
whether the issue raised by the Defendants "is a question of
standing or adequacy of representation." Rather than complicate
this unanswered issue, Judge Marbley "will defer ruling on the
issue until the class certification stage." Accordingly, the
Defendants Motion to Dismiss based on 12(b)(1) is denied.
III. Conclusion
For the reasons he set forth, Judge Marbley denied the Defendant's
Motion to Dismiss. He granted the Defendant's Motion to Strike the
Plaintiff's request for Punitive Damages. Finally, per the
Plaintiff's Response in Opposition, the Breach of Implied Warranty
of Merchantability Claim is dismissed without prejudice.
A full-text copy of the Court's March 15, 2022 Opinion & Order is
available at https://tinyurl.com/5e7vbc7w from Leagle.com.
GOOGLE LLC: Curley Sues Over Race Discrimination in the Workplace
-----------------------------------------------------------------
APRIL CURLEY, individually and on behalf of all others similarly
situated, Plaintiff v. GOOGLE, LLC, Defendant, Case No.
5:22-cv-01735 (N.D. Cal., March 18, 2022) is a class action against
the Defendant for race discrimination, retaliation, and sex and
sexual orientation discrimination in violation of the New York
State Human Rights Law and the New York City Human Rights Law.
The case arises from the Defendant's alleged hostile work
environment and company-wide discriminatory practices against its
African American and Black employees. Google hires few Black
employees and steers them into lower-level roles, pays them less,
and denies them advancement and leadership roles because of their
race. Black Google employees face a hostile work environment and
suffer retaliation if they dare to challenge or oppose the
company's discriminatory practices. As a result, the Plaintiff and
similarly situated Black employees at Google earn and advance less
than non-Black employees and suffer higher rates of attrition.
Google, LLC is a technology company, with a principal place of
business in Mountain View, California. [BN]
The Plaintiff is represented by:
Ben Crump, Esq.
BEN CRUMP LAW, PLLC
633 Pennsylvania Avenue Northwest, Floor 2
Washington DC 20004
Telephone: (800) 713-1222
- and –
Suzanne E. Bish, Esq.
George Robot, Esq.
Daniel Lewin, Esq.
STOWELL & FRIEDMAN LTD.
303 W. Madison St., Suite 2600
Chicago, IL 60606
Telephone: (312) 431-0888
E-mail: sbish@sfltd.com
- and –
Sam Sani, Esq.
SANI LAW, APC
15720 Ventura Blvd., Suite 405
Encino, CA 91436
Telephone: (310) 935-0405
Facsimile: (310) 935-0409
E-mail: ssani@sanilawfirm.com
GREYSTAR MANAGEMENT: Principe Sues Over Accountants' Unpaid Wages
-----------------------------------------------------------------
Michelle Principe, individually and on behalf of all others
similarly situated v. Greystar Management Services, L.P., Case No.
2:22-cv-00429-MTL (D. Ariz., March 18, 2022) seeks to recover
unpaid overtime wages and other damages owed by Greystar.
Ms. Principe worked for Greystar as a property accountant. Principe
and other property accountants for Greystar regularly worked in
excess of 40 hours in a week.
Greystar allegedly did not pay Principe and the other property
accountants overtime when they worked in excess of 40 hours in a
week. Instead, Greystar improperly classified Principe and the
other property accountants as exempt employees and paid them a
salary with no overtime compensation, the lawsuit says.
Greystar develops, leases, and manages residential rental
properties throughout the United States, and all over the world.
[BN]
The Plaintiff is represented by:
Matthew S. Parmet, Esq.
PARMET PC
Riverway, Ste. 1910
Houston, TX 77056
Telephone: (713) 999 5228
E-mail: matt@parmet.law
HEALTHCOMPARE INSURANCE: Scheduling Order Entered in DeLong Suit
----------------------------------------------------------------
In the class action lawsuit captioned as Michael DeLong v.
Healthcompare Insurance Services, Inc., Case No.
8:21-cv-01653-JLS-JDE (C.D. Cal.), the Court entered a scheduling
order as follows:
-- Last Day to File a Motion to Add July 1, 2022
Parties or Amend Pleadings:
-- Last Day to File a Motion for Sept. 5, 2022
Class Certification:
-- Last Day to File an Opposition Oct. 7, 2022
to Motion for Class Certification:
-- Last Day to File a Reply to Motion Oct. 21, 2022
for Class Certification:
-- Fact Discovery Cutoff: Jan. 20, 2023
-- Last Day to File Motions Feb. 3, 2023
(Excluding Daubert Motions and
all other Motions in Limine):
-- Last Day to Serve Initial Expert Feb. 3, 2023
Reports:
-- Last Day to Serve Rebuttal Expert March 3, 2023
Reports:
-- Expert Discovery Cutoff: March 24, 2023
-- Last Day to Conduct Settlement March 31, 2023
Proceedings:
-- Last Day to File Motions in Limine Sept. 15, 2023
and Daubert Motions:
-- Final Pretrial Conference Oct. 13, 2023
(10:30 a.m.):
-- Preliminary Trial Estimate: 3-4 days
HealthCompare Insurance offers health insurance plans online for
individuals and families in the United States.
A copy of the Court's order dated March 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3N9Gxdd at no extra charge.[CC]
HEARTLAND RESOLUTION: Faces Coleman Suit Over Collection Letter
---------------------------------------------------------------
KAYLEIGH COLEMAN, on behalf of herself and all others similarly
situated v. HEARTLAND RESOLUTION GROUP, LLC, and PENDRICK CAPITAL
PARTNERS, LLC, Case No. 145922511 (Fla. Cir., Pinellas Cty., March
17, 2022) alleges for damages under the Fair Debt Collection
Practices Act and the Florida Consumer Collections Practices Act
against the defendants.
Heartland engages in the business of debt collection with a
principal place of business in Fishers, Indiana.
Heartland regularly collects or attempts to collect debts asserted
to be owed to 21. Heartland is regularly engaged, for profit, in
the collection of debts allegedly owed others. A letter, dated
February 10, 2022, was received and read by Plaintiff. A
third-party vendor prepared the letter, prewritten a template,
printed, and mailed the letter to the Plaintiff at Heartland's
direction, the lawsuit says.
The Plaintiff did not provide her prior consent to the sharing of
her information with the third-party letter vendor Heartland chose
to convey information to regarding the alleged debt as part of its
collection efforts.
The Letter states, in the relevant part, "Call or write to us by
March 22, 2022, to dispute all or part of the debt. If you do not,
we will assume that our information is correct." The Letter
provided Plaintiff a deadline of March 22, 2022 to dispute the
alleged debt, request validation, and/or request the name and
address of the original creditor.[BN]
The Plaintiff is represented by:
Jason Tenenbaum, Esq.
TENENBAUM LAW GROUP, PLLC
1600 Ponce De Leon Blvd., 10th Floor
Coral Gables, FL 33134
Telephone: (305) 402-9529
Facsimile: (786) 292-1948
HL WELDING: $858K Class Settlement in Yanez Suit Wins Final Nod
---------------------------------------------------------------
In the case, LUIS LOPEZ YANEZ; KAYASONE MUONGKHOT; and JULIO RUBIO,
on behalf of themselves and all others similarly situated,
Plaintiffs v. HL WELDING, INC., Defendant, Case No. 20cv1789-MDD
(S.D. Cal.), Magistrate Judge Mitchell D. Dembin grants the
Plaintiffs' Motion for Final Approval of Class Action, FLSA
Collective Action, and Private Attorneys' General Act Settlement,
including their request for attorneys' fees, costs and expenses,
and Class Representative Service Awards.
I. Background
On Sept. 11, 2021, Plaintiff Yanez initiated the action. On June 2,
2021, the Plaintiffs filed a First Amended Complaint ("FAC"), which
is the operative complaint in the case. The FAC added claims on
behalf of an expanded statewide class, a nationwide collective
action, and penalties under PAGA.
The Plaintiffs allege: (1) failure to pay overtime wages under
California Labor Code Sections 510, 1194; (2) failure to furnish
accurate wage statements under California Labor Code Sections 226,
226.3; (3) waiting time penalties under California Labor Code
Sections 201-2032; (4) unfair competition under California Business
and Professions Code Section 17200, et seq.; (5) civil penalties
under PAGA, California Labor Code Section 2698, et seq.; and (6)
failure to pay overtime wages under Fair Labor Standards Act, 29
U.S.C. Section 207 ("FLSA").
The gravamen of the Plaintiffs' complaint in this action and the
Muongkhot Action is that the Defendant "has used a pay scheme to
deprive Tradespeople of wages by paying a 'per diem' in addition to
hourly wages, but not including the per diem rate in its
calculation of overtime pay." As such, the Defendant has allegedly
not paid overtime using the proper regular rate of pay as required
by the FLSA and California law. Additionally, the Plaintiffs allege
derivative claims that Defendant failed to provide accurate wage
statements, "and that certain Tradespeople are due waiting time and
PAGA penalties."
The parties attended a mediation on March 24, 2021, with mediator
Scott Markus. The mediation involved discussion of settlement of
both this Action and the Muongkhot Action. The parties entered into
a signed Memorandum of Understanding ("MOU") to settle all of the
class and PAGA claims in both cases. Prior to mediation, Defendant
HL Welding shared with the Plaintiffs' counsel detailed data
regarding the class claims. HL Welding provided supplemental data
to the Plaintiffs' counsel on June 2, 2021 that confirmed the
relevant workweeks and pay periods that are the focus of the
disputes, and which also confirmed when class members worked
overtime hours that would be subject to additional compensation if
the Plaintiffs prevailed on the merits. The parties spent the next
two months negotiating the terms of the full settlement agreement
presented in the instant motion, including the Settlement Notice to
the class.
The Plaintiffs seek preliminary approval of an $858,000
non-reversionary settlement with HL Welding to settle the
California and federal overtime pay, and related claims on behalf
of a class of Tradespeople ("Settlement Class Members").
In return for a release of all claims in the action, the Muongkhot
Action, and any related claims arising from the same facts averred
in the operative complaint, the Defendant agreed to create a
non-reversionary $858,000 Gross Settlement Amount ("GSA"). The
Defendant will separately pay the "employer's s are" of employment
taxes (FICA, FUTA, SDI) on any payments classified as W-2 income or
wages, over and above the GSA.
The Settlement Class consists of: All current and former employees
of HL Welding who were employed as Welders, Ship Fitters,
Pipefitters, Sheet Metal workers, Electricians, Machinists, Riggers
and Tackers at any time from Oct. 1, 2015 and June 30, 2021 and who
have not signed arbitration agreement with class/collective action
waiver with HL Welding and who fall within one of the following two
subclasses:
1. California Subclass: All current and former employees of HL
Welding who were employed as Welders, Ship Fitters, Pipefitters,
Sheet Metal workers, Electricians, Machinists, Riggers and Tackers
by Defendant in California at any time between Oct. 1, 2015 and
June 30, 2021 (the "California Subclass Period") and who have not
signed arbitration agreement with class/collective action waiver
with HL Welding.
2. FLSA Subclass: All current and former employees of HL
Welding who were employed as Welders, Ship Fitters, Pipefitters,
Sheet Metal workers, Electricians, Machinists, Riggers and Tackers
by Defendant in states other than California at any time between
Sept. 15, 2017 and June 30, 2021 (the "FLSA Subclass Period") and
who have not signed arbitration agreement with class/collective
action waiver with HL Welding.
There are 80 individuals in the Settlement Class.
The Settlement Agreement provides for a non-reversionary $858,000
gross settlement fund. Attorneys' fees and costs, class
representative service awards, PAGA penalties to the California
LWDA and PAGA Recipients, and the Settlement Administrator's fees
and costs will be deducted from the gross settlement fund before
funds are distributed to Class Members. The remaining Net
Settlement Fund of approximately $436,000 will be distributed to
Class Members pro rata based on the number of weeks worked during
the settlement class period. The disbursements will be made
automatically to Class Members; they do not need to submit claims.
Class Members can expect to receive approximately $226.97 per
workweek. The average award will be $5,450 and the largest award
will be over $19,500.
The Settlement Agreement also provides for $100,000 of the
settlement funds to be allocated to PAGA claims, with $75,000
payable to the LWDA and $25,000 to 477 "PAGA Recipients" in
consideration of a narrow release that releases only relate to PAGA
claims and preserves these employees' rights to bring claims in
arbitration for alleged non-payment of overtime and other Labor
Code violations.
On Dec. 9, 2021, the Settlement Administrator mailed notice of the
settlement to 557 Settlement Class Members and PAGA Recipient
individuals who were on the class/PAGA list provided by HL Welding.
79 of the notice packets sent by first-class mail were returned as
undeliverable. The Settlement Administrator was able to locate new
addresses for 74 of those, and re-mail the notice. The Settlement
Administrator set up a toll-free number for telephone support, as
set forth in the Notice Packet. The deadline for Class Members to
exclude themselves from the Settlement Class, and to file
objections to the Settlement Agreement, was Jan. 24, 2022. No Class
Member has opted out or objected.
The Class Members submitted one timely challenge and one untimely
challenge to the Settlement Administrator's estimates based on
Defendant's records. The Settlement Administrator worked with the
Defendant and the Plaintiffs' counsel to resolve these disputes,
and both disputes were rejected.
The Court held a hearing on March 15, 2022. No objectors appeared
and the parties did not raise any new issues.
II. Discussion
The Plaintiffs' motion seeks final approval of a class action
settlement, an FLSA collective action settlement, a PAGA
settlement, attorneys' fees and costs, and class representative
service awards.
A. Class Action Settlement
1. Class Certification
In the Preliminary Approval Order, the Court found the proposed
Settlement Class proper and conditionally certified it for
settlement purposes. There have been no changes with respect to
factors the Court considered in preliminarily certifying the
Settlement Class. Accordingly, Judge Dembin incorporates by
reference the reasons set forth in its Preliminary Approval Order
and reaffirms that the requirements of Federal Rule of Civil
Procedure 23(a) and (b) have been satisfied.
2. Adequacy of Notice
Having reviewed the Brunner Declaration, which provides that notice
was disseminated to potential Settlement Class Members in the
manner ordered by the Court in its Preliminary Approval Order,
Judge Dembin finds that the Settlement Class received adequate
notice of the Settlement. The Settlement Administrator further
declares the settlement administration costs are $11,000. Judge
Dembin approves the Settlement Administration costs in the amount
of $11,000.
3. Fairness of the Settlement
Judge Dembin must next determine whether the proposed settlement is
"fair, reasonable, and adequate" pursuant to Federal Rule of Civil
Procedure 23(e)(2)(C). Factors relevant to this determination
include: The strength of the plaintiffs' case; the risk, expense,
complexity, and likely duration of further litigation; the risk of
maintaining class action status throughout the trial; the amount
offered in settlement; the extent of discovery completed and the
stage of the proceedings; the experience and views of counsel; the
presence of a governmental participant; and the reaction of the
class members to the proposed settlement. Because the factors
outlined favor approving the settlement, Judge Dembin grants the
motion to finally approve the class action settlement and finds
that the settlement is "fair, reasonable, and adequate" under Rule
23(e).
B. FLSA Settlement
Judge Dembin approves of the FLSA settlement. First, he finds that
the Plaintiffs point to several disputed factual and legal
questions regarding class certification, arbitration, liability on
the overtime claims, and issues relating to damages. Each of these
appears to be genuinely disputed. Second, the settlement is
reasonable and provides meaningful relief given the risks inherent
in continued litigation over the issues disputed in this action.
Moreover, the scope of the Plaintiffs' release of claims is
appropriately limited to claims that were asserted in the Complaint
or reasonably could have arisen out of the same facts alleged in
the Complaint.
C. PAGA Claims
Although the Settlement Agreement's $100,000 allocation to PAGA
penalties amounts to roughly 22% of the maximum PAGA penalties,
there have been no objections and Judge Dembin confirms the Court's
preliminary approval that the settlement for the Rule 23 class and
FLSA collective action is robust enough to fulfill PAGA's
purposes.
D. Class Representative Service Awards
Plaintiffs Yanez, Rubio, and Muongkhot ask for class representative
service awards of $5,000 each. The Plaintiffs have provided
declarations detailing the activities engaged in to benefit the
class, and the risks undertaken in placing their names on the
complaint and in actively participating in assisting in the
prosecution of the case.
Having considered the relevant factors, the Plaintiffs' counsel's
arguments, and the supporting declarations, Judge Dembin approves
the class representative service awards as reasonable.
E. Attorneys' Fees
The Plaintiffs' counsel seeks $286,000 in attorneys' fees. This
amounts to one-third of the gross settlement amount. In its
Preliminary Approval Order, the Court found "no reason to award
fees that exceed the Ninth Circuit's 25% benchmark" and instructed
counsel to "show what special circumstances exist warranting a
higher percentage in their motion for attorneys' fees and costs."
Judge Dembin assesses the reasonableness of the requested fees and
conducts a lodestar cross-check. Because the Class Counsel seeks
one-third of the settlement fund, and because that amount is
reasonable, and after conducting a lodestar cross-check, he finds
the requested attorneys' fees are reasonable. Accordingly, he
approves the requested amount of attorneys' fees in the amount of
$286,000.
F. Litigation Expenses
The Class Counsel seeks reimbursement of their costs in the amount
of $10,000. The Class Counsel's expenses include costs for filing,
courier charges, mediation, in house copies, postage, legal
research, pacer fees, PAGA filing fees, expert fees, CourtCall, and
Vendor Copy Costs. Accordingly, Judge Dembin approves the Class
Counsel's litigation expenses of $10,000.
III. Conclusion
Judge Dembin grants the Plaintiffs' Motion for Final Approval of
Class Action, FLSA Collective Action, and Private Attorneys'
General Act Settlement, including the Plaintiffs' request for
attorneys' fees, costs and expenses, and Class Representative
Service Awards. He finds the proposed settlement of the class
action appropriate for final approval pursuant to Federal Rule of
Civil Procedure 23(e), and the law governing FLSA and PAGA actions.
He ordered the parties to implement the Settlement Agreement
according to its terms and conditions and the Court's final order.
Specifically, Judge Dembin settlement administration costs of
$11,000, attorneys' fees of $286,000 to the Class Counsel,
litigation costs of $10,000 to the Class Counsel, and $5,000 each
to named Plaintiffs Luis Lopez Yanez, Kayasone Muongkhot, and Julio
Rubio for class representative service awards.
Accordingly, the action is dismissed with prejudice. The Clerk of
Court is instructed to enter final judgment in accordance with the
Order.
A full-text copy of the Court's March 15, 2022 Order is available
at https://tinyurl.com/2p9x8pmk from Leagle.com.
HONEYWELL SAFETY: McKnight Seeks Collective Action Notice
---------------------------------------------------------
In the class action lawsuit captioned as BARBARA MCKNIGHT and
SHEILA ANDERSON, Individually and On Behalf of All Other Persons
Similarly Situated, v. HONEYWELL SAFETY PRODUCTS USA, INC. AND
HONEYWELL INTERNATIONAL, INC., DAVID M. COTE, CARL JOHNSON, and
MARK R. JAMES, in their Official and Individual :Capacities, Case
No. 1:16-cv-00132-MSM-PAS (D.R.I.), the Plaintiffs ask the Court to
enter an order granting their motion to issue a corrective notice
and consent to join the collective action and to continue the
tolling period.
Honeywell Safety designs and manufactures protection equipment.
A copy of the Plaintiffs' motion dated March 3, 2022 is available
from PacerMonitor.com at https://bit.ly/36pDjRC at no extra
charge.[CC]
The Plaintiffs are represented by:
Louise A. Herman, Esq.
HERMAN LAW GROUP
1445 Wampanoag Trail, Suite 104
E. Providence, RI 02915
Telephone: (401) 277-4110
Facsimile: (401) 433-0139
E-mail: lherman@lhermanlaw.com
- and -
Amato A. DeLuca, Esq.
DeLUCA AND WEIZENBAUM, LTD.
199 North Main Street
Providence, R.I. 02905
Telephone: (401) 354-7233
Facsimile: (401) 453-1501 (fax)
E-mail: bud@delucaandweizenbaum.com
HOPEN LIFE: Order Setting Scheduling Conference Entered in Winkler
------------------------------------------------------------------
In the class action lawsuit captioned as GEOFF WINKLER v. HOPEN
LIFE SCIENCE VENTURES, et al., Case No. 2:21-cv-06049-FMO-AFM (C.D.
Cal.), the Hon. Judge Fernando M. Olguin entered an order setting
scheduling conference as follows:
-- Counsel for the parties shall attend April 21, 2022
a scheduling conference on:
-- Counsel for all appearing parties and March 31, 2022
all unrepresented appearing parties,
if any, shall meet, in person,
telephonically or via video conference,
and discuss the matters set forth in
Fed. R. Civ. P. 26(f) ("Rule 26(f)")
no later than:
-- Counsel for all appearing parties, and April 7, 2022
all unrepresented appearing parties,
if any, shall file a Joint Rule 26(f)
Report No later than:
Hopen Life Science Ventures is a venture capital firm.
A copy of the Court's order dated March 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3CVk2DM at no extra charge.[CC]
IDEANOMICS INC: S.D. New York Grants Bids to Toss Securities Suit
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In the case, IN RE IDEANOMICS, INC. SECURITIES LITIGATION, Case No.
20 Civ. 4944 (GBD) (S.D.N.Y.), Judge George B. Daniels of the U.S.
District Court for the Southern District of New York granted the
Defendants' motions to dismiss.
By two separate motions, the Defendants move to dismiss for failure
to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure ("FRCP") and the Private Securities Litigation
Reform Act of 1995 ("PSLRA"), 15 U.S.C. Section 78u-4(b).
I. Background
Lead Plaintiff Rene Aghajanian brings the action against Defendants
Ideanomics, Alfred Poor, Conor McCarthy, Anthony Sklar, and Bruno
Wu pursuant to Section 10(b) of the Securities Exchange Act of
1934, and Rule 10b-5(b) promulgated thereunder, and Section 20(a).
The Plaintiff brings the federal securities class action on behalf
of all investors (the "Class") who purchased or otherwise acquired
Ideanomics' common stock between March 16, 2020 and June 25, 2020,
inclusive (the "Class Period").
Ideanomics is a global company focused on facilitating the adoption
of commercial electronic vehicles ("EV") through its Mobile Energy
Global ("MEG") division. Defendant Poor is Ideanomics' CEO and
Interim Chairman of the Board of Directors. Defendant Wu, a Chinese
media mogul and purported billionaire, is Ideanomics' Chairman of
the Board of Directors. Defendant McCarthy is Ideanomics' CFO.
Defendant Sklar is currently Senior Vice President of
Communications and has served as Head of Investor Relations and
Corporate Secretary.
Ideanomics announced the MEG division on Aug. 26, 2019. The company
stated that the "MEG business operates as an end-to-end solutions
provider for the procurement, financing, charging and energy
management needs for fleet operators of commercial Electronic
Vehicles." The MEG Center would be in the City of Qingdao, China.
However, by the end of 2019, Ideanomics reported a net loss of $97
million and the company began issuing debt convertible to
securities.
On Dec. 19, 2019, Ideanomics obtained $5 million in exchange for
debt convertible to Ideanomics' common stock at $1.50 per share
from offshore investment fund YA II PN, Ltd. ("YA II"), operated by
Yorkville Advisors Global, LP. Further, on Jan. 10, 2020, the
Listing Qualifications Staff of the NASDAQ Stock Exchange alerted
Ideanomics that its common stock had traded below $1 for the past
thirty consecutive trading days, that Ideanomics' common stock was
at risk of being delisted, and that it had until July 8, 2020 to
raise its per-share price to at least $1 for ten consecutive
trading days.
In April 2020, Ideanomics entered into an equity agreement with YA
II where it sold newly issued shares to YA II at 90% of the stock's
market price. Per the agreement, YA II did not need to purchase
IDEX shares if the Ideanomics lost its NASDAQ listing. The
Plaintiff alleges that, during the Class Period, the Defendants
made numerous misstatements about the MEG center that artificially
increased the stock price and eventually caused financial loss the
Class.
The alleged misstatements occurred during earnings calls, YouTube
interviews with Defendants Poor, Wu, McCarthy, and Sklar
(collectively, "Individual Defendants"), and press releases
spanning the Class Period. The Plaintiff alleges that these
statements are material misrepresentations.
By two separate motions, the Defendants move to dismiss for failure
to state a claim pursuant to Rule 12(b)(6) of the FRCP and the
PSLRA, 15 U.S.C. Section 78u-4(b).
II. Discussion
The Plaintiff alleges that the Defendants' statements about the
size of the MEG Center and its level of operation were false or
misleading. Out of several alleged misstatements, the Plaintiff's
counsel focused this Court on the following statements during oral
argument: (1) the MEG Center "has been renovated as a permanent EV
expo center"; (2) Ideanomics had "officially launched the largest
auto trading market in Qingdao"; (3) the MEG Center "hosts a full
suite of car dealer services" "with a capacity of 18,000 vehicles
onsite"; (4) the MEG Center "is a one million square foot EV expo
center" which had a "soft launch on May 1, 2020"; (5) the MEG
Center had "high levels of activity at this early stage" and "solid
customer foot traffic." The Plaintiff also alleges that Defendant
Wu's statement that "we're actually opening up a hundred thousand
sorry a -a million square feet" was misleading.
Judge Daniels holds that (i) the J Capital report and Hindenberg
tweets meet the PSLRA standard -- albeit slightly; (ii) the
Defendants' statements made on May 26, May 28, June 9, And June 11
were not false; (iii) the Plaintiff has failed to allege scienter
for all the Defendants because the Plaintiff's allegations for the
other Individual Defendants are wholly insufficient; (iii) the
Plaintiff has failed to adequately allege loss causation because
the Plaintiff provides no explanation for the upward fluctuation
just four days after the J Capital and Hindenberg publications; and
(iv) absent a primary violation of the securities laws, the
Plaintiff's claim for control person liability against the
Individual Defendants also fails.
III. Conclusion
For these reasons, Judge Daniels granted the Defendants' motions to
dismiss. The Clerk of Court is directed to close the motions
accordingly.
A full-text copy of the Court's March 15, 2022 Memorandum Decision
& Order is available at https://tinyurl.com/4kvswzya from
Leagle.com.
INSPECTIONALERT.COM INC: Monzon Suit Seeks Damages Under FLSA, NYLL
-------------------------------------------------------------------
FERMIN JULIO CIFUENTES MONZON, individually and on behalf of all
others similarly situated v. INSPECTIONALERT.COM INC. d/b/a
INSPECTION ALERT MANAGEMENT and ISRAEL RODITI as an individual,
Case No. 2:22-cv-01476 (E.D.N.Y., March 17, 2022) seeks to recover
damages for the Defendants' alleged violations of the Fair Labor
Standard Acts and the New York Labor Law state and federal wage and
hour laws arising out of Plaintiff's employment with the Defendants
at INSPECTIONALERT.COM INC., located at 141 Main Street, East
Rockaway, New York.
As a result of the alleged violations of Federal and New York
State, the Plaintiff seeks compensatory damages and liquidated
damages in an amount exceeding $100,000.00. The Plaintiff also
seeks interest, attorneys' fees, costs, and all other legal and
equitable remedies this Court deems appropriate.
The Plaintiff was employed as a construction worker and remodeler
while also performing related miscellaneous duties for the
Defendants, from in or around June 2014 until in or around February
2022.
The Plaintiff brings this action on behalf of herself, and other
employees similarly situated as authorized under the FLSA, 29
U.S.C. section 216(b). The employees similarly situated are
hereafter, the "Collective Class."
Collective Class: "All persons who are or have been employed by the
Defendants as construction workers, remodelers or any other
similarly titled personnel with substantially similar job
requirements and pay provisions, who were performing the same sort
of functions for Defendants, other than the executive and
management positions, who have been subject to Defendants' common
practices, policies, programs, procedures, protocols and plans
including willfully failing and refusing to pay required overtime
wages."[BN]
The Plaintiff is represented by:
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Telephone: (718) 263-9591
Facsimile: (718) 263-9598
INSPERITY INC: Building Trades' Complaint Dismissed With Prejudice
------------------------------------------------------------------
In the case, BUILDING TRADES PENSION FUND OF WESTERN PENNSYLVANIA,
Individually and on Behalf of All Others Similarly Situated,
Plaintiff v. INSPERITY, INC., PAUL J. SARVARDI, and DOUGLAS S.
SHARP, Defendants, Case No. 20 Civ. 5635 (NRB) (S.D.N.Y.), Judge
Naomi Reice Buchwald of the U.S. District Court for the Southern
District of New York granted the Defendants' motion to dismiss with
prejudice.
The Defendants moved to dismiss the Corrected Amended Complaint
("CAC") for failure to state a claim pursuant to Federal Rule of
Civil Procedure 12(b)(6).
I. Background
Lead Plaintiff Oakland County Employees' Retirement System and
Oakland County Voluntary Employees' Beneficiary Association Trust
brings the class action lawsuit on behalf of all persons or
entities who purchased common stock of Insperity between Feb. 11,
2019 and Feb. 11, 2020. The Plaintiff alleges violations of
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934
(the "Exchange Act") and Rule 10b-5 promulgated thereunder against
Insperity, its CEO, President, and Chairman, Paul J. Sarvadi, and
its CFO, Treasurer, and Senior Vice President of Finance, Douglas
S. Sharp.
The Plaintiff challenges statements that Insperity, Sarvadi, and
Sharp made on earnings calls and in press releases during that
period. Broadly, these statements fall into five categories: (1)
statements regarding whether Insperity employed sufficient BPAs to
meet its growth targets, (2) statements regarding Insperity's
insight into health care claims data; (3) statements regarding
Insperity's sales and growth; (4) statements regarding whether
there was a mismatch between Insperity's costs and pricing; and (5)
statements regarding Insperity's purchase of stop-loss protection.
Building Trades Pension Fund of Western Pennsylvania commenced the
action on July 21, 2020. On Sept. 21, 2020, Wayne County Employees'
Retirement System and Oklahoma Law Enforcement Retirement System
filed a motion to be appointed lead plaintiffs. That same day,
Oakland County Employees' Retirement System filed its own motion to
be appointed lead plaintiff. On Oct. 5, 2020, Wayne County
Employees' Retirement System and Oklahoma Law Enforcement
Retirement System submitted a motion of non-opposition to Oakland
County Employees' Retirement System's request to be appointed lead
plaintiff, noting that they did not possess the largest financial
interest in the relief sought by the class.
On Oct. 23, 2020, the Court granted Oakland County Employees'
Retirement System's motion and appointed it lead plaintiff. Oakland
County Employees' Retirement System filed the CAC on Dec. 24, 2020.
On April 26, 2021, the Defendants filed the instant motion to
dismiss and memorandum of law in support thereof. On June 10, 2021,
Oakland County Employees' Retirement System filed its opposition
brief. The Defendants filed their reply on July 12, 2021.
II. Discussion
A. Plaintiff Fails to Allege False or Misleading Statements
Judge Buchwald addresses each of the categories of statements that
the Plaintiff relies on to claim securities fraud. After
considering each category, she finds that the Plaintiff's complaint
fails because it has failed to allege any false or misleading
statements.
First, the Plaintiff's complaint fails to allege a false or
misleading statement regarding Insperity's BPAs because it cannot
manufacture a securities fraud claim out of statements which are
uncontradicted, are protected forward-looking statements under the
PSLRA, or constitute opinions. Further, the Plaintiff cannot assert
that the Defendants had a duty to disclose facts where no such duty
exists and the facts in question were disclosed.
Second, Judge Buchwald finds that Sarvadi's statement on the Feb.
11, 2019 call that Insperity was in "excellent shape" at the
beginning of 2019 is puffery, and therefore not actionable.
Likewise, Insperity's statement in its Feb. 11, 2019 press release
that it was "well-positioned to continue our strong financial
performance," is also puffery. As a result, these statements cannot
be the basis for a securities fraud claim.
Third, the Plaintiff has failed to identify a misleading statement
concerning Insperity's sales and growth. There is no inconsistency
in Insperity having strong sales in the first half of the year,
such that it was ahead of the prior year, and then having a weaker
second half of the year. Insperity was abundantly transparent in
disclosing the impact of the "large enterprise account" referenced
in the Nov. 4, 2019 call. Also, the Defendants' misguided optimism
is not a sufficient basis for a securities claim and the statement
is forward-looking.
Fourth, Judge Buchwald holds that the Plaintiff fails to account
for the fact that the Defendants did react to higher costs
throughout the year. While the Defendants may have been mistaken
about whether large claims would continue, it is not a securities
fraud for the Defendants to have reasonably concluded that higher
health care costs were anomalous. Furthermore, the Plaintiff has
not pled that the statement that Insperity was "a little ahead" on
renewals was false when made. There is no inconsistency with
Insperity being ahead on renewals in November 2019, but ultimately
being behind on renewals by February 2020, particularly when the
bulk of the renewals typically occur in January or February. Again,
the Plaintiff has failed to plead a false statement of fact or
omission.
Finally, the Plaintiff has failed to plead that the Defendants made
false or misleading statements with regard to stop-loss protection.
It does not show that the Defendants intentionally fostered a
mistaken belief concerning a material fact that was incorporated
into the report. Further, the Plaintiff does not allege that the
Defendants "adopted or placed their imprimatur on the report."
Thus, the statement is not attributable to the Defendants, and the
Plaintiff has failed to allege a misstatement of a material fact.
B. Scienter
The Plaintiff's complaint does not survive the motion to dismiss
for the separate and independent reason that it has failed to plead
scienter. "The requisite scienter can be established by alleging
facts to show either (1) that defendants had the motive and
opportunity to commit fraud, or (2) strong circumstantial evidence
of conscious misbehavior or recklessness." The Plaintiff has failed
to allege scienter under either theory.
First, Judge Buchwald finds that the Plaintiff does not even
endeavor to allege that the sales were unusual or suspicious or
begin to address the factors. Thus, it has failed to establish an
inference of scienter under the motive and opportunity prong.
Moreover, the fact that Insperity repurchased over $200 million of
stock during 2019, including almost $50 million of stock in the
fourth quarter of 2019, undercuts any inference of scienter. It
would make no economic sense for Insperity to inflate its stock
price, so that, in turn, it could buy its own stock back at a
higher, inflated price in the fourth quarter of 2019. The Plaintiff
has therefore not shown motive or opportunity.
With respect to recklessness, Judge Buchwald holds that (i) the
Plaintiff has not shown that the Defendants benefited from the
alleged fraud; (ii) the Plaintiff does not make any specific
allegation that any defendant engaged in deliberately illegal
behavior; (iii) the Plaintiff does not point to any contradictory
predictions, reports, or piece of information that the Defendants
actually possessed that demonstrated their statements were false;
(iv) the Plaintiff does not allege that the Defendants failed to
check information that they had a duty to monitor. Therefore, the
Plaintiff has failed to show an inference of scienter sufficient to
survive a motion to dismiss.
C. Section 20(a) Claim
In order to state a claim of control person liability under Section
20(a), "a plaintiff must show (1) a primary violation by the
controlled person, (2) control of the primary violator by the
defendant, and (3) that the defendant was, in some meaningful
sense, a culpable participant in the controlled person's fraud."
As demonstrated in her Opinion, Judge Buchwald holds that the
Plaintiff has failed to plead an underlying primary violation.
Therefore, the Section 20(a) claim fails.
III. Conclusion
For the reasons she set forth, Judge Buchwald granted the
Defendants' motion to dismiss and dismissed the complaint with
prejudice. The Clerk of the Court is respectfully requested to
close the case on the Court's docket.
A full-text copy of the Court's March 15, 2022 Memorandum & Order
is available at https://tinyurl.com/4hbs8b9c from Leagle.com.
KADENCE INTERNATIONAL: Fails to Pay Overtime Pay, Brown Alleges
---------------------------------------------------------------
CODY BROWN, individually and on behalf of all others similarly
situated, Plaintiff v. KADENCE INTERNATIONAL, INC., Defendant, Case
No. 2:22-cv-01097 (E.D., Pa., Mar. 22, 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.
Plaintiff Brown was employed by the Defendant as marketing helper
and support assistant.
KADENCE INTERNATIONAL, INC. is an international market research
agency. The company's line of business includes providing various
business services. [BN]
The Plaintiff is represented by:
Michael Murphy, Esq.
Michael Groh, Esq.
MURPHY LAW GROUP, LLC
Eight Penn Center, Suite 2000
1628 John F. Kennedy Blvd.
Philadelphia, PA 19103
Telephone: (267) 273-1054
Facsimile: (215) 525-021
Email: murphy@phillyemploymentlawyer.com
mgroh@phillyemploymentlawyer.com
KELLER WILLIAMS: Class Cert Bid Opposition Extended to April 4
--------------------------------------------------------------
In the class action lawsuit captioned as BRIAN HAYHURST,
individually on behalf of all others similarly situated, v. KELLER
WILLIAMS REALTY, INC., Case No. 1:19-CV-657 (M.D.N.C.), the Hon.
Judge Joi Elizabeth Peake entered an order that the Motion for
extension of time is granted and the time for defendant Keller
Williams Realty, Inc. to file and serve its Response in Opposition
to Plaintiff's Motion to for Class Certification is extended up to
and including April 4, 2022.
Keller Williams Realty is an American technology and international
real estate franchise with headquarters in Austin, Texas.
A copy of the Court's order dated March 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3is3aep at no extra charge.[CC]
KELLER WILLIAMS: Seeks More Time to File Class Cert Bid Response
----------------------------------------------------------------
In the class action lawsuit captioned as BRIAN HAYHURST,
individually on behalf of all others similarly situated, v. KELLER
WILLIAMS REALTY, INC., Case No. 1:19-cv-00657-NCT-JEP (M.D.N.C.),
the Defendant asks the Court to enter an order extending the time
to file and serve a Response in Opposition to Plaintiff's Motion
for Class Certification in this action 14 days through and
including April 4, 2022.
The time for filing and serving a Response in Opposition to
Plaintiff's Motion for Class Certification has not expired, and the
current deadline is March 21, 2022.
The movant needs additional time conduct Plaintiff's deposition,
which is set for March 23, 2022, before filing and serving its
Response in Opposition to Plaintiff's Motion for Class
Certification.
A copy of the Defendant's motion dated March 3, 2022 is available
from PacerMonitor.com at https://bit.ly/3if129Z at no extra
charge.
Keller Williams Realty an American technology and international
real estate franchise with headquarters in Austin, Texas. It
claimed to be the largest real estate franchise in number of agents
and sales volume for 2018 and 2019.[CC]
The Plaintiff is represented by:
Ted L. Johnson, Esq.
TED LEWIS JOHNSON ATTORNEY AT LAW
P.O. Box 5722
Greensboro NC 27435
E-mail: tedlewisjohnson@tedlewisjohnson.com
- and -
Stefan Coleman, Esq.
LAW OFFICES OF STEFAN COLEMAN, P.A.
201 S. Biscayne Blvd., 28th Floor
Miami FL 33131
- and -
Avi R. Kaufman, Esq.
KAUFMAN P.A.
400 NW 26 th Street
Miami FL 33127
The Defendant is represented by:
Todd P. Stelter, Esq.
John P. Ryan, Esq.
HINSHAW & CULBERTSON
151 North Franklin Street, Suite 2500
Chicago, IL 60606
E-mail: tstelter@hinshawlaw.com
jryan@hinshawlaw.com
- and -
Caren D. Enloe, Esq.
SMITH DEBNAM NARRON DRAKE
SAINTSING & MYERS LLP
NC State Bar No. 17394
P.O. Box 176010
Raleigh, NC 27619-6010
Telephone: (919) 250-2000
Facsimile: (919) 250-2124
LORDSTOWN MOTORS: Delaware Court Refuses to Stay Stockholders Suit
------------------------------------------------------------------
The Court of Chancery of Delaware denied the Defendants' motion to
stay the putative class action lawsuit titled In re Lordstown
Motors Corp. Stockholders Litigation, Case No. 2021-1066-LWW (Del.
Ch.).
Vice Chancellor Lori W. Will informs the counsel that the
Defendants have moved to stay the putative class action pending the
resolution of a federal securities class action. She declines to
grant a stay. The McWane doctrine applies with less force in the
context of representative litigation and is particularly inapt
here, she explains, citing McWane Cast Iron Pipe Corp. v. McDowell
Wellman Engineering Corp. 263 A.2d 281 (Del. 1970). She adds that
although the federal action is first-filed and concerns and the
same business combination, the parties, claims, and remedy sought
are different.
Perhaps more importantly, the case raises emerging issues of
Delaware law, Vice Chancellor Will notes. Established doctrines of
fiduciary duty law are, of course, far from novel. But this Court
has had occasion to apply these principles in the context of
special purpose acquisition companies and stockholder redemption
rights just once--in a decision rendered two months ago. This
Court's essential role of providing guidance in developing areas of
law would be impaired if the Court were to denude its jurisdiction
because a federal securities action resting on similar facts was
filed first, she points out.
I. Relevant Background
On Oct. 23, 2020, Lordstown Motors Corp. ("Legacy LMC") completed a
business combination with special purpose acquisition company
DiamondPeak Holding Corp. (collectovely, "Lordstown"). Disclosures
issued in connection with the transaction indicated that Lordstown
would have a first-mover advantage in the burgeoning electric truck
market and that Lordstown had a large and growing backlog of truck
orders. On March 12, 2021, an analyst report was published that
purported to identify problems faced by Lordstown. A drop in
Lordstown's stock price followed.
Litigation followed, to say the least, Vice Chancellor Will notes.
Starting in March 2021, multiple federal securities class actions
were filed in the United States District Court for the Northern
District of Ohio. The cases were consolidated in June 2021 (the
"Securities Action"). The Defendants named in the Securities Action
complaint are Lordstown, the Lordstown subsidiary that is the
continuation of Legacy LMC, certain of Lordstown and Legacy LMC's
current and former officers, and Lordstown director David Hamamoto.
The complaint asserts various violations of the Securities Act of
1933 and Securities Exchange Act of 1934. The claims are brought on
behalf of a putative class of persons and entities who "a purchased
or otherwise acquired Lordstown's Class A Common Stock publicly
traded warrants or any publicly traded option to purchase or sell
Lordstown's Class A Common Stock, from Aug. 3, 2020, through July
2, 2021 and/or (b) held Lordstown's Class A Common Stock as of
Sept. 21, 2020."
Related derivative actions were also filed in the United States
District Court for the District of Delaware, the Northern District
of Ohio, and in this Court.
The present action (the "Action") was brought after two Lordstown
(previously DiamondPeak) stockholders obtained documents pursuant
to 8 Del. C. Section 220. Their class action complaints were filed
in this Court on Dec. 8 and Dec. 13, 2021, and have been
consolidated. The Plaintiffs' claims are brought on behalf of a
putative class of "all record and beneficial holders of DiamondPeak
common stock who continuously held such stock between the
transaction's Record Date of Sept. 21, 2020 and the closing of the
de-SPAC Acquisition on Oct. 23, 2020."
The Plaintiffs' Verified Class Action Complaint (the "Complaint)
advances one claim against Hamamoto and four other former members
of the DiamondPeak Board and another claim against the "Controller
Defendants"--defined as Diamond Peak Sponsor LLC and two of the
former directors.
On Jan. 10 and 18, 2022, the Defendants filed one-page motions to
dismiss pursuant to Court of Chancery Rules 12(b)(6) and 23.1. On
Jan. 19, 2022, the Defendants filed a Motion to Stay this Action
pending the resolution of the Securities Action. The Court heard
argument on the Motion to Stay on Feb. 28, 2022.
II. Legal Analysis
The Defendants seek to stay the Action pending the resolution of
the Securities Action, relying on McWane Cast Iron Pipe Corp. v.
McDowell Wellman Engineering Corp. and its progeny. Under the
McWane doctrine, the court's discretion to grant a stay should be
freely exercised where "there is a prior action pending elsewhere,
in a court capable of doing prompt and complete justice, involving
the same parties and the same issues, Vice Chancellor Will opines.
These concepts are impelled by considerations of comity and the
necessities of an orderly and efficient administration of justice.
The Defendants contend that allowing the Action to proceed in
parallel with the Securities Action would tax the resources of the
court and the parties. They further assert that the Plaintiffs here
seek to represent a subset of the stockholder class represented in
the Securities Action and that the breach of fiduciary duty claims
in this Action are premised upon the same statements alleged to be
misleading in the Securities Action.
In response, the Plaintiffs note that the claims in this Action
involve novel issues of Delaware law that are not implicated in the
Securities Action. They further argue that, regardless, none of the
McWane factors support staying the Action.
Vice Chancellor Will explains that a McWane analysis is an
imperfect method to guide her assessment of the Defendants' motion.
In the representative litigation setting, the Court's "paramount
interest" is to ensure that "stockholders receive 'fair and
consistent enforcement of their rights under the law governing the
corporation,'" citing Brandin v. Deason, 941 A.2d 1020, 1024 (Del.
Ch. 2007) (quoting In re Topps Co. S'holders Litig., 924 A.2d 951,
953 (Del. Ch. 2007)).
Here, the fundamental question is whether the Court's interest in
resolving corporate governance issues under Delaware law prevails
over considerations of comity and practicality. This Action
concerns allegations that the Defendants breached their fiduciary
duties of loyalty and impaired the exercise of stockholders'
redemption rights in the context of a de-SPAC transaction. Vice
Chancellor Will explains that those claims raise "novel issues"
akin to those that this court was presented with in a matter of
first impression earlier this year. The Court of Chancery has "long
been chary" about deferring to a first-filed action pending
elsewhere "when a case involves important questions of our law in
an emerging area" (In re Topps, 924 A.2d at 960).
Vice Chancellor Will finds that none of the remaining factors
appropriately considered under McWane outweigh that vital interest.
She opines that the parties in this Action and the Securities
Action differ significantly. Although these actions have facts in
common, the issues presented are distinct. And the claims brought
here are not a simple repackaging of securities claims with a
Delaware law label.
To start, Vice Chancellor Will explains, the Securities Action
names only one of the Action's Defendants. The Defendants point to
the overlap in Defendants here and in the related derivative
actions (though they do not seek a stay in deference to those
cases) to support their position that this Action should not move
forward. But--insofar as the derivative actions are even relevant
to whether a stay in deference to the Securities Action is
appropriate--those cases seek to recover on behalf of Lordstown
while this action is brought on behalf of a putative class of
former DiamondPeak stockholders. Vice Chancellor Will points out
that it is not apparent to her why the Court would stand down from
hearing class action claims in deference to derivative actions that
might themselves defer to prior-filed securities claims.
The putative class in the Securities Action is also not equivalent
to the class the Plaintiffs seek to represent in this Action, Vice
Chancellor Will finds. Members of the stockholder class in this
Action also fall within the Securities Action class (which is not
unusual in parallel actions). But, as the Plaintiffs point out, any
recovery for the earlier investors included in the Securities
Action class--who are the focus of this Action--could be affected
by the breadth of that class period.
The issues in the actions coincide insofar as the disclosures in
DiamondPeak's proxy statement require examination, Vice Chancellor
Will notes. They are otherwise fundamentally different. The crux of
the Securities Action rests on whether Lordstown's stock price was
"artificially inflated" by false and misleading disclosures. The
Plaintiffs' Complaint, by contrast, alleges that the Defendants
harmed the putative class members by impairing the informed
exercise of their redemption rights to the Defendants' benefit.
These are quintessential Delaware concerns--not, as the Defendants
argue, a rebranding of securities claims about material
misstatements as fiduciary duty claims.
That reality renders the cases relied upon by the Defendants
inapposite, Vice Chancellor Will holds. She explains that in
Derdiger v. Tallman 773 A.2d 1005, 1010 (Del. Ch. 2000) a lead
plaintiff in a consolidated federal securities action was appointed
to "pursue all available causes of action against all possible
defendants under all available legal theories."
Vice Chancellor Will also finds, among other things, that the
distinction between the federal claims pleaded in the Securities
Action and the Plaintiffs' Delaware law fiduciary duty claims is
not an "artificial" one. Without considering the viability of the
Plaintiffs' claims, even a superficial review of the Complaint
makes plain that the Plaintiffs are pursuing more than a narrow
disclosure claim. The claims advanced invoke both the duty of
loyalty and disclosure duties implicating director loyalty. They
are not redundant or duplicative of the first-filed securities
claims.
The gap between the claims here and those in the Securities Action
widens when the potential remedies are considered, Vice Chancellor
Will holds. The Securities Action seeks to recover damages for
losses allegedly caused by the decline in Lordstown's stock price
from a class period high of $31.57. The Plaintiffs' attempted
recovery in this Action, by contrast, could turn on the $10
redemption price (plus interest) relative to the value the class
received in the de-SPAC transaction.
III. Conclusion
Delaware has a substantial interest in addressing the issues
presented by the case, Vice Chancellor Will notes. And there is
limited overlap--in terms of the parties, issues, and potential
remedies--between this Action and the Securities Action. Hence, the
Defendants' Motion to Stay is denied.
A full-text copy of the Court's Decision dated March 7, 2022, is
available at https://tinyurl.com/2nst5t2z from Leagle.com.
Raymond J. DiCamillo -- dicamillo@rlf.com -- Kevin M. Gallagher --
gallagher@rlf.com -- Alexander M. Krischik -- krischik@rlf.com --
Alena V. Smith -- asmith@rlf.com -- Richards, Layton & Finger P.A.,
920 North King Street, in Wilmington, Delaware 19801.
Gregory V. Varallo -- Greg.Varallo@blbglaw.com -- Daniel E. Meyer
-- Daniel.Meyer@blbglaw.com -- Bernstein Litowitz Berger &
Grossmann LLP, 500 Delaware Avenue, Suite 901, in Wilmington,
Delaware 19801.
MAD FISH SC: Fails to Pay Proper Wages, Craven Suit Alleges
-----------------------------------------------------------
DONALD NICHOLAS CRAVEN, individually and on behalf of all others
similarly situated, Plaintiff v. MAD FISH SC, LLC, Defendant, Case
No. 2:22-cv-00935-RMG (D.S.C., Mar. 21, 2022) seeks to recover from
the Defendants unpaid wages and overtime compensation, interest,
liquidated damages, attorneys' fees, and costs under the Fair Labor
Standards Act.
The Plaintiff was employed by the Defendant as delivery driver.
MAD FISH SC, LLC owns and operates Mad Fish Sushi and Hibachi Grill
in Summerville. [BN]
The Plaintiff is represented by:
Jacob J Modla, Esq.
THE LAW OFFICES OF JASON E. TAYLOR, P.C.
115 Elk Avenue
Rock Hill, SC 29730
Telephone: (803) 328-0898
E-mail: jmodla@jasonetaylor.com
- and -
Sean Short, Esq.
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Pkwy, Suite 510
Little Rock, AK 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
Email: sean@sanfordlawfirm.com
josh@sanfordlawfirm.com
MAGNA INTERNATIONAL: Davis, Dakota Seek Class Certification
-----------------------------------------------------------
In the class action lawsuit captioned as MELVIN DAVIS and DAKOTA
KING, individually and on behalf of all others similarly situated,
v. MAGNA INTERNATIONAL OF AMERICA, INC., et al., Case No.
2:20-cv-11060-NGE-RSW (E.D. Mich.), the Plaintiffs ask the Court to
enter an order:
1. certifying this action as a class action on behalf of:
"All persons, except Defendants and their immediate family
members, who were participants in or beneficiaries of the
Plan, at any time between April 30, 2014 through the date
of judgment (the Class Period);"
2. appointing them as representatives of the proposed class;
and
3. appointing the their counsel as counsel for the Class
The Plaintiffs allege claims under The Employee Retirement Income
Security Act of 1974 ( ERISA) section 502(a)(2) for breaches of
fiduciary duty.
Magna is the Plan sponsor and a named fiduciary of the Plan.
A copy of the Plaintiffs' motion to certify class dated March 3,
2022 is available from PacerMonitor.com at https://bit.ly/34Ny5yK
at no extra charge.[CC]
The Plaintiffs are represented by:
Mark K. Gyandoh, Esq.
Gabrielle Kelerchian, Esq.
Donald R. Reavey, Esq.
CAPOZZI ADLER, P.C.
312 Old Lancaster Road
Merion Station, PA 19066
Telephone: (610) 890-0200
Facsimile: (717) 233-4103
E-mail: markg@capozziadler.com
gabriellek@capozziadler.com
donr@capozziadler.com
MAISON DE'VILLE NURSING: Class Cert Bid Filing Extended to March 28
-------------------------------------------------------------------
In the class action lawsuit captioned as JANICE VERDIN, CATHERINE
NAQUIN, MARY HELMER, OLIVIA HELMER, LAUREN HELMER, INDIVIDUALLY AND
ON BEHALF OF OTHERS SIMILARLY SITUATED, v. BOB DEAN, JR., MAISON
DE'VILLE NURSING HOME OF HARVEY, L.L.C., ST. ELIZABETH'S CARING,
L.L.C., RACELAND MANOR NURSING HOME, INC., MAISON DE'VILLE NURSING
HOME, INC., RIVER PALMS NURSING & REHAB, L.L.C., UPTOWN HEALTHCARE
CENTER, L.L.C., BOB DEAN ENTERPRISES, INC., and LOUISIANA
HEALTHCARE CONSULTANTS, L.L.C., Case No. 2:21-cv-01976-JCZ-DMD
(E.D. La.), the Hon. Judge Jay C. Zainey entered an order granting
the unopposed Motion to extend deadline for the Plaintiffs seeking
preliminary certification as a collective action.
The Plaintiffs are given an additional 30 days, or until March 28,
2022, to file their motion for class certification.
A copy of the Court's order dated March 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3Jl0ifq at no extra charge.[CC]
MAMMOTH TECH: Leininger Alleges WARN Act Violation Over Mass Layoff
-------------------------------------------------------------------
THERESA LEININGER, on behalf of herself and all others similarly
situated, Plaintiff v. MAMMOTH TECH, INC., Defendant, Case No.
3:22-cv-00394-JZ (N.D. Ohio, March 11, 2022) is a civil action
brought by the Plaintiff for collection of unpaid wages and
benefits for 60 calendar days pursuant to the Worker Adjustment and
Retraining Notification Act.
The Plaintiff was an employee of the Defendant until she was
allegedly terminated as part of, or as a result of a mass layoff
and/or plant closing ordered by the Defendant. As such, Defendant
is liable under the WARN Act for the failure to provide Plaintiff
and the other similarly situated former employees at least 60 days'
advance written notice of termination, as required by the WARN Act,
says the suit.
Mammoth Tech, Inc. is an outsourcing solutions provider.[BN]
The Plaintiff is represented by:
Jeffrey C. Miller, Esq.
BRENNAN, MANNA & DIAMOND, LLC
200 Public Square, Suite 3270
Cleveland, OH 44114
Telephone: (216) 658-2323
Facsimile: (216) 658-2156
E-mail: jcmiller@bmdllc.com
- and -
Stuart J. Miller, Esq.
LANKENAU & MILLER, LLP
100 Church Street, 8th Fl
New York, NY 10007
Telephone: (212) 581-5005
Facsimile: (212) 581-2122
- and -
Mary E. Olsen, Esq.
M. Vance McCrary, Esq.
THE GARDNER FIRM, PC
210 S. Washington Ave.
Mobile, AL 36602
Telephone: (251) 433-8100
Facsimile: (251) 433-8181
MARZ & ASSOCIATES: Underpays General Laborers, Krueger Suit Says
----------------------------------------------------------------
NATHAN KRUEGER, on behalf of himself and all others similarly
situated, Plaintiff v. MARZ & ASSOCIATES, LLC and ZACHARY ZIRBEL,
Defendants, Case No. 22-cv-313 (E.D. Wis., March 11, 2022) is a
collective action brought pursuant to the Fair Labor Standards
with individual claims and causes of action under Wisconsin's Wage
Payment and Collection Laws by the Plaintiff for unpaid overtime
compensation, unpaid straight time (regular) and/or agreed upon
wages, liquidated damages, costs, attorneys' fees, declaratory, and
injunctive relief.
The Plaintiff was hired by the Defendants as an hourly-paid,
non-exempt employee in the position of general laborer in September
2021 until February 2022.
Marz & Associates is a construction company with principal place of
business in Shawano, Wisconsin.[BN]
The Plaintiff is represented by:
James A. Walcheske, Esq.
Scott S. Luzi, Esq.
David M. Potteiger, Esq.
WALCHESKE & LUZI, LLC
235 N. Executive Drive, Suite 240
Brookfield, WI 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
E-mail: jwalcheske@walcheskeluzi.com
sluzi@walcheskeluzi.com
dpotteiger@walcheskeluzi.com
META PLATFORMS: N.D. California Grants in Part Klein's Bids to Seal
-------------------------------------------------------------------
In the case, MAXIMILIAN KLEIN, et al., Plaintiffs v. META
PLATFORMS, INC., Defendant, Case No. 20-cv-08570-JD (VKD) (N.D.
Cal.), Magistrate Judge Virginia K. DeMarchi of the U.S. District
Court for the Northern District of California, San Jose Division,
granted in part and denied in part the Plaintiffs' motions to
seal.
The Plaintiffs move to seal portions of their brief and Exhibits
B-E, L and J to the Declaration of Brian Dunne submitted in
connection with a pending discovery dispute over an Aug. 20, 2021
clawback notice regarding several email communications produced in
discovery by Defendant Meta. The Plaintiffs request sealing on the
ground that Meta has designated most of the subject information
(other than Exhibit J) as "Confidential" or "Highly Confidential"
under the parties' stipulated protective order. They request
sealing for Exhibit J only in "an abundance of caution," and they
take no position on whether that information appropriately should
be sealed.
Meta responds to the Plaintiffs' motion to seal by requesting
sealing for only a subset of information identified in the
Plaintiffs' briefs and exhibits. Specifically, Meta requests
sealing only as to the names, initials, email addresses and
telephone numbers of its current and former employees identified in
those documents.
Meta also separately moves to seal the same information contained
in its opposition brief, the declaration of Michael Kirkland, and
Exhibit 1 to the declaration of Molly Jennings submitted in
connection with the pending discovery dispute. It agrees that the
current and former employees' roles and job titles at the company
at the time of the communications may be relevant, and Meta does
not ask that such information be sealed. Additionally, Meta does
not request that any portion of Exhibit J to Mr. Dunne's
declaration be sealed. Nor does Meta contend that any other
contents of the subject documents be sealed.
Judge DeMarchi holds that the "good cause" standard applies to the
present motions to seal, which pertain to a discovery dispute over
Meta's assertions of the attorney-client privilege over the subject
email communications. Meta does not deny that the individuals in
question have "information and involvement in this particular
matter." Nor does Meta contend that its current and former
employees' names reveal confidential information. Rather, it argues
that these individuals' names and contact information should be
sealed "given the current media attention to Meta" and the
possibility that these individuals "may receive unsolicited emails
and phone calls from the press or members of the general public,
which could rise to the level of threats or harassment." Meta
further states that any such harassment, if it were to occur,
"could result in decreased morale, decreased productivity, and
increased expenses."
Judge DeMarchi therefore finds that the public's interest in access
to that information is outweighed by the risk of possible
harassment to the individuals in question. Accordingly, Meta's
motion to seal its current and former employees' names, initials,
and contact information is granted to protect these employees'
privacy interests. The Plaintiffs' motion to seal is granted only
to the same extent that Meta's motion to seal has been granted; the
Plaintiffs' motion to seal is otherwise denied.
Within seven days from the date of the Order, the parties will file
revised redacted versions of their respective briefs and exhibits
in compliance with the rulings. The Order does not preclude a
subsequent order that the subject information properly should be
part of the public record as the case progresses.
A full-text copy of the Court's March 11, 2022 Order is available
at https://tinyurl.com/mryn7srp from Leagle.com.
META PLATFORMS: Seeks Summary Judgment in DZ Reserve Class Suit
---------------------------------------------------------------
In the class action lawsuit captioned as DZ RESERVE and CAIN
MAXWELL (d/b/a MAX MARTIALIS), individually and on behalf of all
others similarly situated, v. META PLATFORMS, INC., Case No.
3:18-cv-04978-JD (N.D. Cal. ), the Defendant asks the Court to
enter an order for summary judgment on Plaintiffs' remaining claims
in the Third Amended Complaint (TAC) pursuant to Rule 56 of the
Federal Rules of Civil Procedure.
The Court previously dismissed the Plaintiffs' breach of contract,
implied covenant of good faith and fair dealing, and quasi-contract
claims, and limited Plaintiffs' fraud claims to events post-dating
August 15, 2015.
Dkts. 9 130, 255. Court also granted in part Meta's motion for
judgment on the pleadings, holding that Plaintiffs cannot proceed
on their claim for restitution under California's Unfair
Competition Law ("UCL") and denying leave to amend.
Meta Platforms is an American multinational technology conglomerate
based in Menlo Park, California. The company is the parent
organization of Facebook, Instagram, and WhatsApp, among other
subsidiaries.
A copy of the Defendant's motion dated March 4, 2022 is available
from PacerMonitor.com at https://bit.ly/3ufbwvp at no extra
charge.[CC]
The Defendant is represented by:
Elizabeth L. Deeley, Esq.
Melanie M. Blunschi, Esq.
Nicole C. Valco, Esq.
LATHAM & WATKINS LLP
505 Montgomery Street, Suite 2000
San Francisco, CA 94111-6538
Telephone: (415) 391-0600
E-mail: elizabeth.deeley@lw.com
melanie.blunschi@lw.com
nicole.valco@lw.com
- and -
Andrew B. Clubok, Esq.
Susan E. Engel, Esq.
555 Eleventh Street, N.W., Suite 1000
Washington, D.C. 20004-1304
Telephone: (202) 637-2200
E-mail: andrew.clubok@lw.com
susan.engel@lw.com
METROPOLITAN LIFE: McAlister, et al., Seek to Certify Class
-----------------------------------------------------------
In the class action lawsuit captioned as Catherine McAlister,
Pauline Walker, Lee Kernan, Emily Ross, Scott Batey, Mary Trivett
and Joan Brownell, on behalf of themselves and all others similarly
situated, v. Metropolitan Life Insurance Company, MetLife Group,
Inc. and the Metropolitan Life Insurance Company Employee Benefits
Committee, Case No. 1:18-cv-11229-RA-OTW (S.D.N.Y.), the Plaintiffs
ask the Court to enter an order:
1. Certifying a class, pursuant to Fed. R. Civ. P. 23(b)(1)
(A), Rule 23(b)(1), (b)(2) or (b)(3), consisting of:
"All participants (and their beneficiaries) that began
receiving pension benefits (1) on or after January 1,
2013, (2) in the form of a joint and survivor annuity with
a survivorship percentage between 50% and 100%, (3) whose
benefit was calculated entirely using the Traditional
Part's formula, and (4) not calculated under Section 4.02-
A or 5.02-A of the Plan as of June 30, 2008;
2. Appointing them Lee S. Kernan, Joan S. Brownell, and Emily
Ross to serve as class representatives;
3. Appointing Izard, Kindall & Raabe, LLP and Bailey &
Glasser LLP as co-lead counsel for the Class; and
4. For such other and further relief as may be just and
proper.
MetLife is the holding corporation for the Metropolitan Life
Insurance Company, better known as MetLife, and its affiliates.
MetLife is among the largest global providers of insurance,
annuities, and employee benefit programs, with 90 million customers
in over 60 countries.
A copy of the Plaintiffs' motion to certify class dated March 3,
2022 is available from PacerMonitor.com at https://bit.ly/3KUVqOz
at no extra charge.[CC]
The Plaintiffs are represented by:
Robert A. Izard, Esq.
Douglas P. Needham, Esq.
Seth R. Klein, Esq.
Oren Faircloth, Esq.
IZARD, KINDALL & RAABE LLP
29 South Main Street, Suite 305
West Hartford, CT 06107
Telephone: (860) 493-6292
Facsimile: (860) 493-6290
E-mail: rizard@ikrlaw.com
dneedham@ikrlaw.com
sklein@ikrlaw.com
ofaircloth@ikrlaw.com
- and -
Gregory Y. Porter, Esq.
Mark G. Boyko, Esq.
BAILEY & GLASSER LLP
1054 31st Street, NW, Suite 230
Washington, DC 20007
Telephone: (202) 463-2101
Facsimile: (202) 463-2103
E-mail: gporter@baileyglasser.com
mboyko@baileyglasser.com
MG DELI GROCERY: Fails to Pay Proper Overtime Pay, Castillo Says
----------------------------------------------------------------
RADHAMES CASTILLO, individually and on behalf of all others
similarly situated, Plaintiff v. MG DELI GROCERY, CORP. (d/b/a R &
C DELI GROCERY); R & C DELI GROCERY, INC. (d/b/a R & C DELI
GROCERY); and JOSE R. CORNIEL, Defendants, Case No. 1:22-cv-02281
(S.D.N.Y., Mar. 21, 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.
Plaintiff Castillo was employed by the Defendants as general
assistant and delivery worker.
R & C Deli Grocery, Inc. (d/b/a R & C Deli Grocery) owns and
operates a deli, located at Bronx, New York, under the name "R & C
Deli Grocery." [BN]
The Plaintiff is represented by:
Catalina Sojo, Esq.
CSM LEGAL, P.C
60 East 42nd Street, Suite 4510
New York, N.Y. 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
MICHIGAN STATE: Norris Appeals Order in Suit Over Mandatory Vaccine
-------------------------------------------------------------------
Plaintiffs Jeanna Norris, et al., filed an appeal from a court
ruling entered in the lawsuit entitled Jeanna Norris, on behalf of
herself and all others similarly situated v. Samuel L. Stanley,
Jr., in his official capacity as President of Michigan State
University; Dianne Byrum in her official capacity as Chair of the
Board of Trustees; Dan Kelly, in his official capacity as Vice
Chair of the Board of Trustees; Renee Jefferson, Pat O'Keefe,
Brianna T. Scott, Kelly Tebay, Rema Vassar, in their official
capacities as Members of the Board of the Trustees of Michigan
State University; Unknown Part(y)(ies), named as John and Jane Does
1-10; Case No. 1:21-cv-00756-PLM-SJB, in the U.S. District Court
for the Western District of Michigan at Grand Rapids.
According to the complaint, Michigan State University announced
"COVID directives" for the Fall 2021 semester by email and on its
website on July 30, and then provided an expanded version via its
website on August 5, 2021. The directives include a "Mandatory
COVID-19 Vaccine."
The Directive states that, all faculty, staff, and students must
either be fully vaccinated or have received one of a two-dose
series by August 31, 2021, unless they obtain a religious or
medical exemption, both of which are limited in nature and
application. The Directive specifically excludes natural immunity
as a basis for a medical exemption. Even employees who work
remotely are subject to the Directive.
The Plaintiff filed this suit on August 27, 2021, on behalf of a
class of similarly situated individuals, employees of MSU who have
naturally acquired immunity to COVID-19 and for whom the Directive
represents a violation of their constitutional rights to bodily
autonomy and to decline medical treatment.
Allegedly, the Directive violates both the constitutional and
federal statutory rights of Plaintiff and those who are similarly
situated because it undermines their bodily integrity and autonomy
and conditions their employment on their willingness to take a
medically unnecessary vaccine. Forcing Plaintiff and others to take
this vaccine will provide no discernible, let alone compelling,
benefit either to Plaintiff or to the MSU community. Although
obtaining the vaccine could raise Plaintiff's antibody levels even
higher, her levels are already high enough to be equivalent to most
vaccinated people, so any augmented benefit is negligible. The
unconstitutional conditions doctrine exists precisely to prevent
government actors from clothing unconstitutional objectives and
policies in the garb of supposed voluntarism when those actors
fully intend and expect that the pressure they are exerting will
lead to the targets of such disguised regulation succumbing to the
government's will. The Plaintiff invokes this Court's Article III
and inherent powers to insulate her from this pressure and to
vindicate her constitutional and statutory rights, says the suit.
On November 19, 2021, the Defendants filed a motion to dismiss
Plaintiffs' amended complaint.
The Plaintiffs now seek a review of the Court's Order dated January
21, 2022 and Judgment dated February 22, 2022, granting in part
Defendants' motion to dismiss.
The appellate case is captioned as Jeanna Norris, et al. v. Samuel
Stanley, Jr., et al., Case No. 22-1200, in the United States Court
of Appeals for the Sixth Circuit, filed on March 14, 2022.[BN]
Plaintiffs-Appellants JEANNA NORRIS, on behalf of herself and all
other similarly situated; KRAIG EHM; and D'ANN ROHRER, are
represented by:
Jenin Younes, Esq.
NEW CIVIL LIBERTIES ALLIANCE
1225 19th Street, N.W., Suite 450
Washington, DC 20036
Telephone: (202) 918-6905
Defendants-Appellees SAMUEL L. STANLEY, JR., in his official
capacity as President of Michigan State University; DIANNE BYRUM,
in her official capacity as Chair of the Board of Trustees; DAN
KELLY, in his official capacity as Vice Chair of the Board of
Trustees; RENEE JEFFERSON, in their official capacities as Members
of the Board of the Trustees of Michigan State University; PAT
O'KEEFE, in their official capacities as Members of the Board of
the Trustees of Michigan State University; BRIANNA T. SCOTT, in
their official capacities as Members of the Board of the Trustees
of Michigan State University; KELLY TEBAY, in their official
capacities as Members of the Board of the Trustees of Michigan
State University; REMA VASSAR, in their official capacities as
Members of the Board of the Trustees of Michigan State University;
and UNKNOWN PART(Y)(IES), named as John and Jane Does 1-10, are
represented by:
Uriel Abt, Esq.
OFFICE OF GENERAL COUNSEL
426 Auditorium Road, Room 407
East Lansing, MI 48824
Telephone: (517) 353-4934
E-mail: abturiel@msu.edu
- and -
Stephanie L. Gutwein, Esq.
Anne Ricchiuto, Esq.
FAEGRE DRINKER BIDDLE & REATH
300 N. Meridian Street, Suite 2500
Indianapolis, IN 46204
Telephone: (317) 237-0300
E-mail: stephanie.gutwein@faegredrinker.com
anne.ricchiuto@faegredrinker.com
MILLIMAN INC: Healy FCRA Suit Seeks to Certify Three Classes
------------------------------------------------------------
In the class action lawsuit captioned as JAMES HEALY, on behalf of
himself and all others similarly situated, v. MILLIMAN, INC., d/b/a
INTELLISCRIPT, Case No. e 2:20-cv-01473-JCC (W.D. Wash.), the
Plaintiff asks the Court to enter an order:
1. certifying the proposed classes;
2. appointing Mr. Healy to serve as class representative;
3. appointing Francis Mailman Soumilas, PC and Terrell
Marshall Law Group PLLC to serve as class counsel; and
4. directing that notice be sent to the classes as soon as
practicable.
This is a consumer class action based upon Milliman, Inc.'s
systemic and comprehensive non-compliance with the Fair Credit
Reporting Act ("FCRA") pertaining to its sale of "Intelliscript"
reports to life insurers nationwide.
James Healy's life insurance application was denied because
Milliman sold his prospective insurer, Americo, a report that
contained serious medical history and prescription data about
another consumer.
Contrary to Milliman's report, Mr. Healy had a clean bill of
health. The error was easily preventable as the records Milliman
sold demonstrated a person with a different social security number,
last name, and zip code. Any quick review of the data 10 would have
revealed the gross error. Through discovery, Plaintiff learned that
this was no accident or outlier situation. As Milliman's Director
of Strategic Operations Angela Bolduc honestly testified, in Mr.
Healy's case, Milliman's matching logic worked "as planned."
Mr. Healy respectfully requests that the Court certify three
classes of consumers, including:
(1) an inaccuracy class consisting of individuals for whom
Milliman sold a report 20 containing data belonging to a
different person;
(2) a file disclosure class consisting of all individuals who
requested a copy of their Milliman reports; and
(3) a reinvestigation class consisting of every person who
"disputed" the accuracy of their Milliman reports. As
described in the following, all of the elements of
Federal Rule Civil Procedure 23(a) and (b) are satisfied.
Milliman sells reports containing health care information to life
insurers. Milliman is an "independent risk management, benefits and
technology firm.
A copy of the Plaintiff's motion to certify class dated March 4,
2022 is available from PacerMonitor.com at https://bit.ly/3ueXrOP
at no extra charge.[CC]
The Plaintiff is represented by:
Jennifer Rust Murray, Esq.
Beth E. Terrell, Esq.
Adrienne D. McEntee, Esq.
TERRELL MARSHALL LAW GROUP PLLC
936 North 34th Street, Suite 300
Seattle, Washington 98103-8869
Telephone: (206) 816-6603
Facsimile: (206) 319-5450
E-mail: bterrell@terrellmarshall.com
jmurray@terrellmarshall.com
amcentee@terrellmarshall.com
- and -
James A. Francis, Esq.
John Soumilas, Esq.
Lauren KW Brennan, Esq.
FRANCIS MAILMAN SOUMILAS, P.C.
1600 Market Street, Suite 2510
Philadelphia, PA 19103
Telephone: (215) 735-8600
Facsimile: (215) 940-8000
E-mail: jfrancis@consumerlawfirm.com
jsoumilas@consumerlawfirm.com
lbrennan@consumerlawfirm.com
MOLINA HEALTHCARE: Breaches Fiduciary Duties, Mills ERISA Suit Says
-------------------------------------------------------------------
MICHELLE MILLS, COY SARELL, CHAD WESTOVER, BRENT ALESHIRE, BARBARA
KERSHNER, PAULA SCHAUB, and JENNIFER SILVA, individually and as
representatives of a class participants and beneficiaries on behalf
of the Molina Salary Savings Plan v. MOLINA HEALTHCARE, INC., and
JOHN DOES 1–10, Case No. 2:22-cv-01813 (C.D. Cal., March 18,
2022) is a class action brought by the Plaintiffs, individually and
as representatives of a class of participants and beneficiaries of
the Molina Salary Savings Plan, on behalf of the Plan against the
Defendants for breach of fiduciary duties under the Employee
Retirement Income Security Act of 1974.
As Plan fiduciaries, the Defendants are obligated to act for the
exclusive benefit of Plan participants and beneficiaries and to
ensure that Plan expenses are reasonable and Plan investments are
prudent. These duties are the "highest known to the law" and must
be discharged with "an eye single to the interests of the
participants and beneficiaries."
Instead of acting in the exclusive best interest of participants,
the Defendants allegedly caused the Plan to invest in flexPATH's
untested target date funds, 10 replaced established and
well-performing target date funds used by participants to meet
their retirement needs. Defendants also failed to use the Plan's
bargaining power to obtain reasonable investment management fees,
which caused unreasonable expenses to be charged to the Plan.
To remedy these breaches of duty, Plaintiffs, individually and as
representatives of a class of participants and beneficiaries of the
Plan, bring this action on behalf of the Plan under 29 U.S.C.
section 1132(a)(2) and (a)(3) to enforce the Defendants' personal
liability under 29 U.S.C. section 1109(a) to make good to the Plan
all losses resulting from each breach of fiduciary duty and to
restore to the Plan profits made through Defendants' use of Plan
assets. In addition, the Plaintiffs seek equitable or remedial
relief for the Plan as the Court may deem appropriate, the lawsuit
says.
Each participant in a defined contribution plan has an individual
account and directs plan contributions into one or more investment
alternatives in a lineup chosen by the plan's fiduciaries.
The plan's fiduciaries have control over these expenses. The
fiduciaries are responsible for hiring administrative service
providers and negotiating and approving their compensation. The
fiduciaries also have exclusive control over the menu of investment
alternatives to which participants may direct the assets in their
accounts, the lawsuit adds.
Molina Healthcare is a managed care company headquartered in Long
Beach, California, United States. The company provides health
insurance to individuals through government programs such as
Medicaid and Medicare.[BN]
The Plaintiffs are represented by:
Jerome J. Schlichter, Esq.
SCHLICHTER BOGARD & DENTON LLP
100 South Fourth Street, Suite 1200
St. Louis, MO 63102
Telephone: (314) 621-6115
Facsimile: (314) 621-5934
E-mail: jschlichter@uselaws.com
- and -
William H. Edmonson, Esq.
LAW OFFICE OF WILL EDMONSON
9157 Sunset Boulevard, Suite 213
West Hollywood, CA 90069
Telephone: (424) 248-9581
E-mail: will@whelawfirm.com
NAGLE & ASSOCIATES: NMFIC Summary Judgment Bid Partly Granted
-------------------------------------------------------------
In the class action lawsuit captioned as NATIONWIDE MUTUAL FIRE
INSURANCE COMPANY v. NAGLE & ASSOCIATES, P.A. and CARL B. NAGLE,
Case No. 3:20-cv-00578-FDW-DSC (W.D.N.C.), the Hon. Judge Frank
Whitney entered an order that the Plaintiff's motion for summary
judgment is granted in part and dismissed in part:
-- The Plaintiff's motion is granted to the extent it seeks a
declaration regarding the duty to defend under the
Policies. The Plaintiff's Motion is otherwise Dismissed, in
that Plaintiff's claim for a declaration regarding its duty
to indemnify is hereby dismissed without prejudice.
-- The Defendants' Motion for Summary Judgment, is denied. The
Parties' Joint Motion to Continue Docket Call/Trial, is,
therefore, denied as moot. The Court hereby declares that
the Plaintiff does not owe a duty to defend Defendants in
connection with the Hatch suit.
A copy of the Court's order dated March 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3ieLW4h at no extra charge.[CC]
NEW YORK, NY: Class Certification Sought in N.G. Suit
-----------------------------------------------------
In the class action lawsuit captioned as N.G., by F.E, Z.M. by
C.M., and all others similarly situated, v. New York City
Department of Education, David C. Banks, in his representative and
official capacity as Chancellor of the New York City Department of
Education, the New York State Education Department, and Betty Rosa,
in her representative and official capacity as Commissioner of
Education of the State of New York, Case No. 1:14-cv-06529-RML
(E.D.N.Y.), the Plaintiffs ask the Court to enter an order:
(a) certifying the Class as the parties have defined and
requested;
(b) approving the proposed form and substance of notice to the
Class and directing the manner of dissemination;
(c) preliminarily approving the parties' proposed settlement
agreement;
(d) appointing and approving the law firm of Mayerson &
Associates as counsel to the Class;
(e) approving the named plaintiffs as Class representatives;
(f) approving a proposed scheduling order setting forth, inter
alia, date of the Fairness Hearing and the process to
lodge and address any objections; and
(g) granting plaintiffs such other, different and further
relief as the Court may deem proper.
A copy of the Plaintiffs' motion to certify class
dated March 4, 2022 is available from PacerMonitor.com at
https://bit.ly/3IppXCc at no extra charge.[CC]
The Plaintiffs are represented by:
Gary S. Mayerson, Esq.
MAYERSON & ASSOCIATES
330 West 38th Street, Ste. 600
New York, NY 10018
Telephone: (212) 265-7200
NEW YORK: Donohue Appeals Mask Mandate Class Suit Dismissal
-----------------------------------------------------------
Plaintiffs Patrick Donohue, et al., filed an appeal from a court
ruling entered in the lawsuit entitled PATRICK DONOHUE, et al.,
Plaintiffs v. KATHLEEN HOCHUL, et al., Defendants, Case No.
21-CV-8463 (JPO), in the U.S. District Court for the Southern
District of New York (New York City).
The Plaintiffs filed the class action complaint on Oct. 14, 2021.
The 187-page complaint generally asserts three sets of claims. The
first set asserts that the mask mandate violates the rights of
disabled students under various federal statutes. The Plaintiffs
contend that the mandate violates the Individuals with Disabilities
Education Act ("IDEA") and Section 504 of the Rehabilitation Act
because it contravenes the terms of the Plaintiffs' individual
education plans. The Plaintiffs further contend that the Defendants
violated Section 1415(j) of the Individuals with Disabilities
Education Act when they enforced the mask mandate during the
Plaintiffs' administrative proceedings. They contend that the
mandate violates Title II of the Americans with Disabilities Act
("ADA") on the ground that a mask is an impermissible "restraint."
And they contend that the mandate exceeds the terms of any
authorization from the Food and Drug Administration.
A second set of claims asserts that the mask mandate violates
various federal constitutional rights. Among other things, the
Plaintiffs contend that the mask mandate violates the First
Amendment's Establishment Clause, the Fourth Amendment's
prohibition on unreasonable searches and seizures, the Eighth
Amendment's prohibition against cruel and unusual punishment, the
Fourteenth Amendment's Due Process Clause, and the Fourteenth
Amendment's Equal Protection Clause. The Plaintiff further asserts
rights to family integrity, privacy, personal autonomy, and bodily
integrity. In parallel, the Plaintiffs assert claims under 42
U.S.C. Section 1983.
A third set of claims asserts causes of action under state law,
including allegations that the mask mandate exceeds statutory
authority under state law. The Plaintiffs also contend that the
mandate violates New York's State Education Law Section 313, which
prohibits discrimination in school admissions, and Title XI of the
New York State Constitution, which obligates New York to maintain
public schools.
The Defendants moved to dismiss the complaint in part under Federal
Rule of Civil Procedure 12(b)(1) for lack of subject-matter
jurisdiction and, alternatively, in its entirety under Rule
12(b)(6) for failure to state a claim.
The Plaintiffs moved for a preliminary injunction to enjoin the
Defendants from further implementing a mask mandate for students
enrolled in elementary and secondary schools in New York.
As reported in the Class Action Reporter on March 7, 2022, Judge J.
Paul Oetken of the Southern District of New York dismissed the
complaint and denied the Plaintiffs' motion for a preliminary
injunction.
The Plaintiffs seek a review of this ruling.
The appellate case is captioned as Donohue v. Hochul, Case No.
22-517, in the United States Court of Appeals for the Second
Circuit, filed on March 11, 2022.[BN]
Plaintiffs-Appellants Marie Farrell, Individually, and all Others
Similarly Situated and on Behalf of E.F., a Student of New York
City, and all Others Similarly Situated; Patrick Donohue,
Individually, and all Others Similarly Situated, and on Behalf of
S.J.D., a Student with Disabilities, and all Others Similarly
Situated; and Angela Nolan, Individually, and all Others Similarly
Situated and on Behalf of S.N., a Student with Disabilities in New
York State, and all Others Similarly Situated, are represented by:
Rory Jude Bellantoni, Esq.
BRAIN INJURY RIGHTS GROUP, LTD.
300 East 95th Street
New York, NY 10128
Telephone: (646) 850-5035
E-mail: rory@pabilaw.org
Defendants-Appellees Kathleen Hochul, in her official capacity as
Governor of New York, Bill De Blasio, in his official capacity as
the Mayor of New York City; Howard Zucker, in his official capacity
as the New York State Commissioner of Health; Betty Rosa, in her
official capacity as the New York State Commissioner of Education;
Lester Young,, Jr., New York State Board of Regents; Meisha Porter,
in her official capacity as the Chancellor of New York City
Department of Education; Dave Chokshi, in his official capacity as
Commissioner of New York City Department of Health; New York
Department of Health; New York Department of Education; New York
Board of Regents; New York City Department of Education; and New
York City Department of Health, are represented by:
Matthew William Grieco, Esq.
NEW YORK STATE OFFICE OF THE ATTORNEY GENERAL
28 Liberty Street
New York, NY 10005
- and -
Georgia Mary Pestana, Esq.
NEW YORK CITY LAW DEPARTMENT
100 Church Street
New York, NY 10007
Telephone: (212) 356-2400
NISSAN NORTH: Manufacturers May File Sur-Reply in Hagenbaugh Suit
-----------------------------------------------------------------
In the lawsuit entitled DAVID HAGENBAUGH, et al., individually and
on behalf of all others similarly situated, Plaintiffs v. NISSAN
NORTH AMERICA d/b/a NISSAN USA, et al., Defendants, Case No.
3:20-1838 (M.D. Pa.), Judge Malachy E. Mannion of the U.S. District
Court for the Middle District of Pennsylvania grants the Defendant
Manufacturers' motion for leave of court to file a sur-reply brief
relating to the Plaintiffs' motion to remand.
Factual Background
Plaintiffs David Hagenbaugh, Heather Hagenbaugh, Michael Homanko,
Sherri Homanko, Frederick Lubrecht, and Marianne Lubrecht,
originally filed their class action complaint in Luzerne County
Court of Common Pleas on Sept. 1, 2020. On Oct. 7, 2020, Defendant
Nissan North America, Inc., removed the case to federal court
pursuant to 28 U.S.C. Sections 1332, 1441, 1446 and 1453. On Nov.
20, 2020, the Plaintiffs filed an amended complaint with attached
exhibits.
The Plaintiffs are three pairs of individuals--two married couples
and one father and daughter--residing in Luzerne County,
Pennsylvania. The Defendants include three auto manufacturers
incorporated and headquartered in other states, ("Defendant
Manufacturers"), Hyundai Motor America, Kia Motors America, and
Nissan North America, Inc. Three limited liability company auto
dealerships authorized by the manufacturers and incorporated in
Pennsylvania, ("Defendant Dealerships"), are also listed as
Defendants, as are three individual dealership owners residing in
other states ("Defendant Owners").
According to the amended complaint, the Defendant Dealerships, with
approval of the Defendant Manufacturers and Owners, advertised a
"Set for Life Program," which represented that vehicle purchasers
would receive certain benefits, including engine warranties, oil
and filter changes, car washes, loaner vehicles, and state
inspections, for free for the duration of their ownership of a
vehicle purchased through the Defendants. Amid financial
difficulties, the Defendant Dealerships sold numerous vehicles
without repaying the financing for those vehicles to certain
manufacturer-affiliated financing entities, while still advertising
the Set for Life Program benefits to purchasers.
The Defendant Dealerships went out of business in November 2018,
about two years after opening. Since the dealership closures, the
Defendant Manufacturers have refused customers' demands to provide
them with the Set for Life Program benefits.
Each pair of the Plaintiffs purchased a vehicle from one of the
Defendant Dealerships and each either signed an agreement with the
dealership upon purchase specifying the benefits of the Set for
Life Program or was provided a brochure upon purchase specifying
the benefits. After the dealerships closed, the Plaintiffs demanded
that the Defendant Manufacturers, respectively, continue to provide
the Set for Life Program benefits on behalf of the closed
dealerships they had authorized, and the Defendant Manufacturers
refused.
Procedural History
The Plaintiffs, on behalf of those similarly situated, (the
"Proposed Plaintiff Class"), brought the putative class action
against the Defendants in the Luzerne County Court. Included among
the Plaintiffs' putative class are all individuals located within
and/or residents of the Commonwealth of Pennsylvania, who purchased
or leased automobiles at the Defendant Dealerships between Nov. 1,
2016, and Nov. 30, 2018.
In their original complaint, the Plaintiffs alleged violations of
the Pennsylvania Unfair Trade Practices and Consumer Protection Law
("UTPCPL") and the Chapter 30 of the Pennsylvania Code ("Automotive
Industry Trade Practices") (Count I), breach of contract (Count
II), unjust enrichment (Count III), and fraud (Count IV). As
relief, the Plaintiffs sought treble damages for Count I, actual
and compensatory damages for Count II, restitution in the amount of
actual and compensatory damages for Count III, punitive damages for
Count IV, interest, attorney's fees, expenses, and costs of suit.
The Defendants removed the case on Oct. 7, 2020, averring that the
Court has diversity jurisdiction pursuant to both 28 U.S.C. Section
1332(a) and Section 1332(d), or the Class Action Fairness Act of
2005 ("CAFA"). On Nov. 3, 2020, the Plaintiffs filed a motion to
remand this case back to state court, and submitted a brief in
support of their motion on Nov. 17, 2020.
On Dec. 8, 2020, the Defendant Manufacturers filed their brief in
opposition to the motion to remand. The Plaintiffs filed a reply
brief on Dec. 22, 2020. The Defendant Manufacturers thereafter
filed a motion for leave of court to file a sur-reply brief in
response to the Plaintiffs' reply brief, and the Court considered
the Defendant's proposed sur-reply brief in the present Opinion.
Discussion
As a preliminary matter, the Plaintiff contends that questions
remain concerning the citizenship of the three Defendant
Dealerships. In contrast, the Defendants claim that no Defendants
are citizens of Pennsylvania and that all Plaintiffs are citizens
of Pennsylvania.
Judge Mannion notes that any uncertainty regarding the citizenship
of the Department Dealerships, however, impacts both a
determination regarding whether there is diversity jurisdiction or
jurisdiction under the CAFA.
a. Diversity of Citizenship
If the Court were to examine the Plaintiffs' amended complaint in
light of a facial attack, the assertions made as to the Defendant
Dealerships' citizenship would be insufficient to clearly determine
the LLCs' citizenship as the pleadings merely indicate that the
Defendant Dealerships were organized and existing under the laws of
Pennsylvania, Judge Mannion opines.
As the Plaintiffs make a factual attack as to the Defendants'
claims for jurisdiction in their notice of removal, however, the
Court is required to allow the Defendants to produce evidence,
after discovery on the issue is conducted, as to the citizenship of
the Defendant Dealerships' members. Therefore, the Court cannot
make a determination as to whether there is in fact original
jurisdiction until such discovery takes place and the citizenship
of the parties is settled.
b. Jurisdiction Under the Class Action Fairness Act
Separate and apart from their claims of diversity jurisdiction, the
Defendant Manufacturers alternatively assert that the Court
maintains federal jurisdiction pursuant to the federal Class Action
Fairness Act, which allows subject matter jurisdiction for certain
cases where there is only minimal diversity of citizenship.
Under the CAFA, the Plaintiffs' lawyers claim that the Proposed
Plaintiff class consists of "1370 putative class members" with
"more than 2/3 of the members of the putative class . . . citizens
of the Commonwealth of Pennsylvania." Furthermore, though the
Plaintiffs contend that the amount in controversy for determining
diversity jurisdiction is below the $75,000 threshold, they do not
challenge that the aggregated amount in controversy exceeds five
million. Instead, the Plaintiffs, through their motion to remand,
argue that the local controversy exception under Section
1332(d)(4)(A) applies to their CAFA claims.
The local controversy exception impedes federal jurisdiction under
the CAFA where the class action includes at least one local
defendant "from whom significant relief is sought by members of the
plaintiff class" or "whose alleged conduct forms a significant
basis for the claims asserted by the proposed plaintiff class," 28
U.S.C. Section 1332(d)(4)(A)(i)(II). It is established, however,
that the local controversy exception does not require that the
local defendant's conduct be the most significant conduct or that
it predominates over claims against other defendants, Judge Mannion
notes.
Even as the parties disagree as to the recovery the Plaintiffs
seek, both parties accept that the Plaintiffs' claims start with
the contention that they would not have bought their vehicles but
for the dealerships' alleged fraud. The alleged fraud also occurred
in Pennsylvania and the sales made in Pennsylvania were made by and
through the Defendant Dealerships. The Court, thus, views the
Defendant Dealerships' involvement as a significant basis for the
claims asserted by the proposed plaintiff class.
As set forth here, however, there are clear issues of fact
regarding the proper citizenship for jurisdictional purposes as to
the Defendant Dealerships, which would undermine the Court's
ability to determine whether this matter is sufficiently local,
Judge Mannion opines. Though the Plaintiffs "bear the burden" of
establishing that the local controversy exception applies, it would
be inequitable to simply state that the exception does or does not
apply when one of the main factors in making such a determination
clearly lacks factual support and remains in question.
The Court, therefore, finds that the parties must first complete
the same discovery regarding the citizenship of the Department
Dealerships as set forth above before it will determine whether the
local controversy exception applies.
Conclusion
The Defendant Manufacturers' motion for leave of court to file a
sur-reply brief is granted, and the Court has considered the
proposed brief. The Court is otherwise unable to determine whether
it maintains original jurisdiction over this matter pursuant 28
U.S.C. Section 1332(a) or jurisdiction under the CAFA, and so the
parties will be directed to conduct discovery regarding the
citizenship of the Defendant Dealerships so the Court can decide if
diversity jurisdiction exists in this case. An appropriate Order
will follow.
A full-text copy of the Court's Memorandum dated March 7, 2022, is
available at https://tinyurl.com/4th4vsea from Leagle.com.
NOUHAUS INC: CMP, Scheduling Order Entered in Tavarez-Vargas Suit
-----------------------------------------------------------------
In the class action lawsuit captioned as CARMEN TAVAREZ-VARGAS,
INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, V.
NOUHAUS, INC., Case No. 21-CV-9959-JPC (S.D.N.Y.), the Court
entered an civil case management plan and scheduling order as
follows:
-- All fact discovery shall be June 30, 2022
completed no later than:
-- Initial requests for production April 1, 2022
of documents shall be served by:
-- Interrogatories shall be served by: April 1, 2022
-- All expert discovery, including Aug. 15, 2022
expert depositions, shall be
completed no later than:
-- Plaintiff's expert disclosures June 30, 2022
pursuant to Rule 26(a)(2) of the
Federal Rules of Civil Procedure
shall be made on or before:
A copy of the Court's order dated March 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3CP5BBi at no extra charge.[CC]
OREGON: Canales-Robles Loses Class Certification Bid
-----------------------------------------------------
In the class action lawsuit captioned as HECTOR FERNANDO
CANALES-ROBLES and SAAMIR LOPEZ-CERVANTES, on behalf of themselves
and all others similarly situated, v. COLETTE S. PETERS, former
Director, Oregon Youth Authority (OYA) and current Director, Oregon
Department of Corrections (ODOC); F ARIBORZ P AKSERESHT, former
Director OYA; ROBERT JESTER, former Director, OYA; BOBBY MINK,
former Director, OYA; MICHAEL RIGGAN, former Superintendent,
MacLaren; DAN BERGER, Superintendent, MacLaren; SID THOMPSON,
former Superintendent, MacLaren, Case No. 6:16-cv-01395-AC (D.
Or.), the Hon. Judge John V. Acosta entered an order denying the
Plaintiffs' motion for class certification.
The Court said, "The Plaintiffs do not allege under which prong of
Rule 23(b) they propose to maintain this class action. Moreover,
because Plaintiffs have not satisfied the prerequisites of Rule 23(
a), the court declines to continue its analysis under this rule.
Because Plaintiffs have not satisfied the procedural requirements
of Rule 23, their motion for class certification denied."
The Plaintiffs allege that the Defendants violated their rights
under the Fourteenth Amendment Due Process Clause by denying them
access to the courts. They seek nominal, compensatory, and punitive
damages on behalf of an "ODOC subclass" and assert the following
class action allegation:
The Plaintiffs bring this case on behalf of themselves and
all other persons who were a) placed in the physical custody
of the OYA following convictions in adult court, b) had non-
frivolous claims to bring but were subjected to the policies
and practices described, and c) were transferred to the
physical custody of the ODOC after October 31, 2016.
The Plaintiffs Canales-Robles and Lopez-Cervantes are Oregon
residents formerly in the physical custody of the Oregon Youth
Authority ("OYA") and presently in the custody of the Oregon
Department of Corrections ("ODOC").
A copy of the Court's order dated March 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3Ih9RuA at no extra charge.[CC]
OREGON: Court Extends Discovery & PTO Deadlines in Terrill
----------------------------------------------------------
In the class action lawsuit captioned as Terrill v. State of
Oregon, et al., Case No. 6:21-cv-00588 (D. Or.), the Hon. Judge Ann
L. Aiken entered an order on motion for extension of Discovery &
PTO Deadlines as follows:
-- Motion for Class Certification May 27, 2022
is due by:
-- Discovery is to be completed 120 days after the Court's
ruling on the motion for class certification.
-- The parties shall file amended pleadings and join all
claims 120 days after the Court's ruling on the motion for
class certification.
-- Expert Witness Disclosures and Reports are due 30 days
after the close of fact discovery.
-- Expert Rebuttal Reports are due 30 days after Expert
Disclosures.
-- Expert Discovery to be completed 30 days after Rebuttal
Reports are due.
-- Dispositive Motions are due 30 days after close of Expert
Discovery.
-- Pretrial Order is due 30 days following the Court's ruling
on any dispositive motions.
The suit alleges violation of the Americans with Disabilities
Act.[CC]
P&C PAGELS: Fails to Pay Proper Wages, Condado Suit Alleges
-----------------------------------------------------------
STEPHANIE CONDADO, individually and on behalf of all others
similarly situated, Plaintiff v. P&C PAGELS, INC. d/b/a P&C BAGELS;
PAUL ABATANGELO; and LINDA ABANTANGELO, Defendants, Case No.
1:22-cv-02334 (E.D.N.Y., Mar. 22, 2022) seeks to recover from the
Defendants unpaid wages and overtime compensation, interest,
liquidated damages, attorneys' fees, and costs under the Fair Labor
Standards Act.
Plaintiff Condado was employed by the Defendant as cashier.
P&C PAGELS, INC. d/b/a P&C BAGELS is a bagel shop and deli. [BN]
The Plaintiff is represented by:
Michael Taubenfeld, Esq.
FISHER TAUBENFELD LLP
225 Broadway, Suite 1700
New York, N.Y. 10007
Telephone: (212) 571-0700
Facsimile: (212) 505-2001
PEACHCAP TAX: Leonard Appeals Securities Suit Dismissal
-------------------------------------------------------
Plaintiff CLYDE E. LEONARD, JR. filed an appeal from a court ruling
entered in the lawsuit styled Clyde E. Leonard Jr., individually
and on behalf of all others similarly situated, Plaintiff v.
PeachCap Tax & Advisory, LLC, David Harrison Miller, and Eric
Steven Burnette, Defendants, Case No. 1:21-cv-02164-MHC, in the
U.S. District Court for the Northern District of Georgia.
The case arises from the Defendants' alleged breach of fiduciary
duty, negligence, breach of contract and violations of Georgia's
Uniform Securities Act by using an affiliated broker-dealer,
PeachCap Securities, to buy and sell securities, resulting in the
Defendants receiving unauthorized and unlawful commission
payments.
The lawsuit was removed from the Superior Court of Fulton County,
State of Georgia, to the U.S. District Court for the Northern
District of Georgia on May 24, 2021. The case was assigned Case No.
1:21-cv-02164-MHC.
The Defendants filed a motion to dismiss the complaint which the
Court granted on February 3, 2022, through an Order signed by Judge
Mark H. Cohen.
The Plaintiff seeks a review of this order.
The appellate case is captioned as Clyde Leonard, Jr. v. PeachCap
Tax & Advisory, LLC, et al., Case No. 22-10775, in the United
States Court of Appeals for the Eleventh Circuit, filed on March 4,
2022.
The briefing schedule in the Appellate Case states that:
-- The appellant's brief is due on or before April 13, 2022;
-- The appendix is due no later than 7 days from the filing of
the appellant's brief;
-- Appellant's Certificate of Interested Persons is due on or
before March 28, 2022 as to Appellant Clyde E. Leonard Jr.; and
-- Appellee's Certificate of Interested Persons is due on or
before April 11, 2022 as to Appellee Eric Steven Burnette.[BN]
Plaintiff-Appellant CLYDE E. LEONARD, JR., individually and on
behalf of all others similarly situated, is represented by:
Joshua P. Gunnemann, Esq.
COUNCILL GUNNEMANN & CHALLY, LLC
1201 Peachtree St NE Bldg 400 Ste 2100
Atlanta, GA 30361
Telephone: (404) 407-5256
E-mail: jgunnemann@cgc-law.com
- and -
Bryan M. Knight, Esq.
Jonathan Micah Palmer, Esq.
KNIGHT PALMER, LLC
1360 Peachtree St NE Ste 1201
Atlanta, GA 30309
Telephone: (404) 228-4822
E-mail: bknight@knightpalmerlaw.com
jpalmer@knightpalmerlaw.com
Defendants-Appellees PEACHCAP TAX & ADVISORY, LLC, DAVID HARRISON
MILLER, and ERIC STEVEN BURNETTE are represented by:
William E. Eye, Esq.
GREENBERG TRAURIG, LLP
3333 Piedmont Rd NE Ste 2500
Atlanta, GA 30305
Telephone: (678) 553-2132
E-mail: eyew@gtlaw.com
- and -
Steven Jason Rosenwasser, Esq.
BONDURANT MIXSON & ELMORE, LLP
1201 W Peachtree St NW Ste 3900
Atlanta, GA 30309
Telephone: (404) 881-4167
E-mail: rosenwassers@gtlaw.com
PINNACLE ATHLETIC: Court Approves Settlement in Boyd FLSA Suit
--------------------------------------------------------------
Chief District Judge Elizabeth A. Wolford of the U.S. District
Court for the Western District of New York approved the parties'
settlement agreement in the lawsuit styled MICHAEL BOYD, on behalf
of himself and all others similarly-situated, Plaintiff v. PINNACLE
ATHLETIC CAMPUS, LLC; DANIEL BREE, in his professional and
individual capacities; SHARON CARDARELLI, in her professional and
individual capacities, and JOHN DOE and JANE DOE #1-10, Defendants,
Case No. 6:19-CV-06795 EAW (W.D.N.Y.).
Introduction
Plaintiff Michael Boyd commenced the action on Oct. 28, 2019,
against Defendants Pinnacle Athletic Campus, LLC, Individual
Defendants Daniel Bree, Sharon Cardarelli, and John and Jane Does
#1-10, as a collective action pursuant to the Fair Labor Standards
Act, 29 U.S.C. Sections 201, et seq. ("FLSA") and putative class
action under the New York Labor Law. In sum and substance, the
Plaintiff alleges that he was employed by Pinnacle and he and other
similarly situated employees were not properly compensated for
hours worked overtime. Christopher Culver, Antonio Hepburn, and
Brittany Biddle filed consents to opt-in to the litigation.
The parties engaged in mediation beginning on Jan. 9, 2021. A
settlement was reached between the Defendants and the Plaintiff and
Biddle, but not as to Culver and Hepburn. On May 26, 2021, the
Plaintiff filed a motion to amend the complaint to continue the
action on behalf of Culver and Hepburn. The Defendants opposed the
motion.
On July 6, 2021, the Plaintiff and Biddle filed a motion for
settlement approval, attaching the proposed settlement agreement as
an exhibit to their motion. Pursuant to Cheeks v. Freeport Pancake
House, Inc., 796 F.3d 199 (2d Cir. 2015), either the district court
or the United States Department of Labor must approve the
settlement of an employee's FLSA claims against their employer,
where the settlement would dispose of those claims with prejudice.
The parties request that the Court approves the proposed settlement
agreement.
Also currently pending before the Court is Magistrate Judge Marian
W. Payson's Report and Recommendation dated Feb. 11, 2022 (the
"R&R"), regarding the motion to amend. No objections were filed to
the R&R.
Discussion
I. Legal Principles
Judge Wolford notes that parties cannot privately settle FLSA
claims with prejudice absent the approval of the district court or
the Department of Labor, citing Lazaro-Garcia v. Sengupta Food
Servs., No. 15-CV-4259 (RA), 2015 WL 9162701, at *1 (S.D.N.Y. Dec.
15, 2015).
A. Factors Weighing in Favor of Approval
The Court finds that the amount of recovery under the settlement
agreement is fair when compared to the Plaintiff's expected range
of recovery. Under the settlement agreement, the Plaintiff and
Biddle will each receive $25,000, which includes $8,211.67
representing payment for all unpaid wages; $8,211.67 for alleged
liquidated damages, penalties, and interest; and $8,576.66 as
payment for attorneys' fees and costs in connection with their
claims. This amount represents 84.9% of the Plaintiff's maximum
FLSA recovery, and 80.6% of Biddle's maximum FLSA recovery, which
the Court finds fair and reasonable.
Further, Judge Wolford explains, entering into the settlement
agreement will allow both sides to avoid the litigation risks and
additional costs associated with proceeding with motion practice or
a trial. Furthermore, competent counsel on both sides facilitated
the settlement agreement, and there are no indicia of fraud or
collusion.
Therefore, the Court concludes that the factors favoring the
approval of a settlement agreement are present in the instant
matter.
B. None of the Factors Weighing Against Approval are Present
None of the factors weighing against settlement approval are
present here, Judge Wolford holds. There is no evidence before the
Court that other employees yet to be identified are similarly
situated to the Plaintiff's circumstances. The Court is also
unaware of any "history of FLSA noncompliance" by the Defendants,
and the complaint does not appear to raise novel factual or legal
issues that would further the development of law in this area.
C. Additional Considerations in Favor of Approval
Judge Wolford finds that the settlement agreement contains narrowly
tailored release provisions, and does not contain any
confidentiality or waiver provisions. The release provision
requires the Plaintiff and Biddle to release claims "only insofar
as they relate to wage-related claims contained in the Action."
Further, the Plaintiff and Biddle no longer work for the
Defendants.
Accordingly, the Court finds that the waiver and release provisions
are fair and reasonable.
II. The Requested Attorneys' Fees Award Are Reasonable
Pursuant to the contingency fee agreement between the Plaintiff and
counsel, the counsel seeks one-third of the total net settlement
amount after deduction of litigation expenses of $730, for a total
of $16,423.33.
Notwithstanding the stipulated contingency fee between the parties,
the Plaintiff's attorneys have submitted to the Court detailed time
records showing that they expended over 63.8 hours of attorney time
in this matter, amounting to a total of $12,250 in fees. The Court
concludes that this amounts to a reasonable fee.
The Court has also considered the factors in Goldberger v.
Integrated Res., Inc., 209 F.3d 43, 50 (2d Cir. 2000) in concluding
that the agreed upon fee award is reasonable. Based on the records
submitted by the Plaintiff's counsel, it does not appear that there
was any unnecessary duplication of work on the Plaintiff's case.
The case presented relatively complex issues. Both the Plaintiff
and the Defendants determined that a fair settlement was a more
favorable result than continuing with protracted litigation, and
this favorable result was achieved at an early stage of the case,
which is a positive reflection of counsel's experience and the
quality of the representation.
All these factors weigh in favor of finding that the attorneys'
fees are reasonable, Judge Wolford holds.
III. Adoption of the Report and Recommendation
Pursuant to 28 U.S.C. Section 636(b)(1), the parties had 14 days to
file objections to the Report and Recommendation. No objections
were filed. The Court is not required to review de novo those
portions of a report and recommendation to which objections were
not filed.
Notwithstanding the lack of objections, the Court has conducted a
careful review of the Report and Recommendation, as well as the
prior proceedings in the case, and finds no reason to reject or
modify the Report and Recommendation. The Report and Recommendation
recommends permitting the Plaintiff to amend the complaint to
include Hepburn as a named plaintiff and to assert the factual
allegations relating to him.
The Report and Recommendation reasons that Hepburn's claims relate
to the same policy and practice that the original complaint asserts
on behalf of the Plaintiff, and the Court agrees. It recommends
denying leave to include Culver as a plaintiff, finding that
Culver's claims are not encompassed within the original complaint.
Again, the Court agrees.
Finally, the Report and Recommendation recommends that any other
proposed amendments, including removal of the class allegations and
identification of Boyd as a plaintiff from the original complaint,
be denied without prejudice pending the Court's approval of the
settlement. As set forth, the settlement has now been approved, and
those amendments may now be pursued by stipulation or further
motion practice before Magistrate Judge Payson.
For these reasons, the Report and Recommendation is adopted in
full.
Conclusion
For these reasons, the motion for settlement approval is granted,
and the settlement agreement is approved. The Report and
Recommendation granting in part and denying in part the Plaintiff's
motion to amend is adopted in its entirety.
A full-text copy of the Court's Decision and Order dated March 7,
2022, is available at https://tinyurl.com/33trzsrc from
Leagle.com.
POLARIS INC: Dismissal of Guzman Suit Under Appeal
--------------------------------------------------
Polaris 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 it is facing a class action
filed in the United States District Court for the Central District
of California on August 8, 2019 alleging violations of various
California consumer protection laws focused on rollover protection
systems' certifications for various Polaris off-road vehicles sold
in California. The case is captioned "Paul Guzman and Jeremy
Albright v. Polaris Inc., Polaris Industries Inc., and Polaris
Sales Inc."
On May 12, 2021, the district court granted summary judgment and
dismissed the plaintiffs' claims. Plaintiffs have appealed the
decision to the Ninth Circuit.
Polaris Inc. designs, engineers and manufactures power-sports
vehicles which include, Off-Road Vehicles (ORV), including
All-Terrain Vehicles (ATV) and side-by-side vehicles for
recreational and utility use, Snowmobiles, Motorcycles, Global
Adjacent Markets vehicles, including Commercial, Government and
Defense vehicles, and Boats.
POLARIS INC: Faces Hellman Class Suit in California
---------------------------------------------------
Polaris 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 it is facing a putative class
action is pending in the United States District Court for the
Eastern District of California and alleges violations of various
California consumer protection laws focused on rollover protection
systems' certifications for various Polaris off-road vehicles sold
in California, Oregon, Nevada and Texas. The case is captioned
"Michael Hellman, Francisco Berlanga, Tim Artoff, Cy Mitchell and
Jonathan Lollar, individually and on behalf of all others similarly
situated v. Polaris Industries Inc. (DE), Polaris Sales Inc. and
Polaris Industries Inc. (MN)," (May 25, 2021, E.D. Cal.)
The company has moved to dismiss the non-California plaintiffs.
Discovery is proceeding.
Polaris Inc. designs, engineers and manufactures power-sports
vehicles which include, Off-Road Vehicles (ORV), including
All-Terrain Vehicles (ATV) and side-by-side vehicles for
recreational and utility use, Snowmobiles, Motorcycles, Global
Adjacent Markets vehicles, including Commercial, Government and
Defense vehicles, and Boats.
PRATT & WHITNEY: DiCello Named Co-Lead Counsel in Granata Suit
--------------------------------------------------------------
In the case, David Granata, Plaintiff v. Pratt & Whitney, et al.,
Defendants, Case No. 3:21-CV-01657 (SVN) (D. Conn.), Judge Sarala
V. Nagala of the U.S. District Court for the District of
Connecticut appointed DiCello Levitt Gutzler and Quinn Emanuel
Urquhart & Sullivan LLP, along with local Connecticut counsel from
Hurwitz Sagarin Slossberg & Knuff, LLC and Garrison, Levin-Epstein,
Fitzgerald & Pirotti P.C., as the interim co-lead counsel.
I. Background
On Dec. 14, 2021, the Plaintiff filed the action for violations of
15 U.S.C. Section 1 (the "Sherman Act"). In his complaint, the
Plaintiff alleges the Defendants, which are aerospace engineering
firms, entered a "no-poach agreement" and, through that agreement,
"knowingly, intentionally, and cooperatively engaged in a contract,
combination, or conspiracy in unreasonable restraint of trade." He
further contends that the unlawful behavior was only recently
uncovered when "the U.S. Department of Justice ("DOJ") unsealed a
criminal complaint" against a former employee of Defendant Pratt &
Whitney. Since the action was filed, about 30 additional complaints
have been filed in the district, all of which have been
consolidated into the present action.
Currently pending before the Court are seven proposals from
different law firms, or groups of law firms, to act as interim
class counsel pending class certification.
II. Discussion
Initially, Judge Nagala has no doubt that each of the distinguished
counsel who submitted proposals to be named interim class counsel
are more than capable of adequately representing the class in the
present action. Thus, her decision is based simply on the proposal
she believes would best serve the interests of the class. After
reviewing each of the proposals and examining how the relevant
factors under the Federal Rules relate to each, she believes that
the DiCello/Quinn Proposal will best suit the interests of the
class.
A. The Work Counsel Has Done in Identifying or Investigating
Potential Claims
Judge Nagala recognizes that Quin and DiCello are not the only
firms to conduct substantial investigation into the claims at
issue. However, their efforts, which culminated in the first-filed
complaint in the consolidated action counsels in favor of their
appointment as the interim class counsel.
B. Counsel's Experience Handling Class Actions, Other Complex
Litigation, and the Types of Claims Asserted and Counsel's
Knowledge of the Applicable Law
Judge Nagala acknowledges that the attorneys involved in all of the
proposals demonstrate deep understanding and experience with
antitrust matters generally and often no-poach matters
specifically. The DiCello/Quinn Proposal is no exception. Attorneys
from both DiCello and Quinn have litigated numerous class actions
related to both the aerospace industry and no-poach agreements. It
is clear that the experience litigating in, and knowledge of, the
applicable areas of the law that each of the four firms in this
proposal brings is substantial.
C. The Resources Counsel Will Commit to Representing the Class
Initially, Judge Nagala finds that Quinn has an in-house litigation
support group, which will allow for all discovery to be handled
cost effectively and without engaging the services of an outside
vendor. Quinn also has many offices situated all over the country.
Finally, all firms involved in this proposal have already
demonstrated a willingness to devote the necessary time and
resources to prosecuting the action.
D. Other Matters Pertinent to Counsel's Ability to Represent the
Class
In the present action there are a few factors Judge Nagala believes
counsel in favor of the DiCello/Quinn Proposal. While she
appreciates the other applicants' willingness to work together with
firms outside of their formal proposal for the successful
prosecution of the present matter, she is also concerned that if
too many firms were to get involved, inefficiencies could result.
The DiCello/Quinn Proposal expressly forgoes any such agreement
with other firms, and maintains that only two firms, with support
from the two Connecticut firms, will be involved in the prosecution
of the matter.
The DiCello/Quinn Proposal also commits, to the extent there is a
recovery, to requesting only fees in line with the graduated,
cumulative scale for fees laid out in In re Payment Card
Interchange Fee & Merch. Disc. Antitrust Litig., 991 F.Supp.2d 437,
445 (E.D.N.Y. 2014). Finally, Judge Nagala appreciates that many of
the firms advancing proposals have represented a commitment to
diversity amongst their assigned attorneys, including DiCello and
Quinn. DiCello and Quinn are committed to recruiting, cultivating,
and utilizing talent from a diverse pool of lawyers who will work
on the matter.
III. Conclusion
For the reasons she discussed, Judge Nagala appointed DiCello
Levitt Gutzler and Quinn Emanuel Urquhart & Sullivan LLP, along
with local Connecticut counsel from Hurwitz Sagarin Slossberg &
Knuff, LLC and Garrison, Levin-Epstein, Fitzgerald & Pirotti P.C.
as the interim co-lead counsel for the putative class and granted
the Motion to Appoint Counsel found at ECF No. 151.
The Motions to Appoint Counsel found at ECF Nos. 143, 150, 152,
154, 155, and 156 are denied.
The Interim Co-Lead Counsel may not delegate its responsibilities
or assign legal work to other law firms without the prior approval
of the Court.
Pursuant to the Court's consolidation order, ECF No. 44, a
consolidated amended complaint will be filed no later than April
11, 2022, and the parties' Rule 26(f) report will be filed no later
than April 29, 2022.
A full-text copy of the Court's March 11, 2022 Decision & Order is
available at https://tinyurl.com/2p8msde4 from Leagle.com.
PROGRESSIVE DIRECT: W.D. Washington Stays Proceedings in Assaf Suit
-------------------------------------------------------------------
The U.S. District Court for the Western District of Washington,
Tacoma, grants the Plaintiffs' motion to stay proceedings in the
lawsuit captioned MOHAMMAD M. ASSAF, Plaintiff v. PROGRESSIVE
DIRECT INSURANCE COMPANY, Defendant, Case No. C19-6209 BHS (W.D.
Wash.).
I. Factual & Procedural Background
In November 2019, Assaf filed a putative class action against
Defendant Progressive Direct Insurance Company in Pierce County
Superior Court for the State of Washington. Assaf claims that
Progressive improperly failed to pay its insureds for diminished
value under their Underinsured Motorist Property Damages coverage
in Washington. He specifically alleged that "jurisdiction under the
Class Action Fairness Act of 2005 ("CAFA") does not exist, as the
amount in controversy is far less than $5 million," because the
class "will have approximately 2,411 class members, who will have
on average damages of $1,158 per claim" resulting in no more than
$2,791,938 in recoverable damages.
In December 2019, Progressive removed the matter to this Court,
arguing that the amount in controversy exceeds $5 million.
Progressive's calculation was based on findings in the related
matter Kleinsasser v. Progressive Direct Insurance Co., No.
C17-5499 BHS, 2018 WL 3471185 (W.D. Wash. July 19, 2018),
reconsideration denied, No. C17-5499 BHS, 2018 WL 7982425 (W.D.
Wash. Aug. 13, 2018). In Kleinsasser, the Court denied the
plaintiff's motion to remand because "the average claim value was
$4,198.25," which established that the amount in controversy
exceeded the jurisdictional minimum of $5 million.
Mr. Assaf then moved to remand based on the arguments the Court
rejected in Kleinsasser. The Court held an evidentiary hearing, and
concluded that Progressive had shown that "it is possible that the
amount in controversy exceeds $5 million. because the average claim
value could be $4,198.25" and denied Assaf's motion to remand.
An appeal of Kleinsasser is currently pending before the Ninth
Circuit, see No. C17-5499, Dkt. 197, with oral argument scheduled
on March 11, 2022. The plaintiff in Kleinsasser challenges the
Court's determination that it had jurisdiction under CAFA. Assaf
now moves to stay the case, arguing that the outcome of the appeal
in Kleinsasser will likely affect the proceedings and retention of
jurisdiction in this matter. Progressive opposes the motion and
asserts that the Ninth Circuit's ruling on the issues presented in
Kleinsasser will not affect the matter.
II. Discussion
District Judge Benjamin H. Settle notes that the power to stay
proceedings is "incidental to the power inherent in every court to
control the disposition of the causes on its docket with economy of
time and effort for itself, for counsel, and for litigants," citing
Landis v. N. Am. Co., 299 U.S. 248, 254 (1936).
Mr. Assaf seeks a stay pending the Ninth Circuit's decision in
Kleinsasser, arguing that a resolution of the appeal will likely
have a direct impact on the issues presently before the Court in
the matter."
Mr. Assaf argues that, if the Ninth Circuit rejects any part of the
Court's determination in Kleinsasser, remand of this case will be
required. Indeed, the Court (and Progressive) relied on findings
made in Kleinsasser in determining whether there was CAFA
jurisdiction. Although Progressive argues that the outcome of the
Kleinsasser appeal will not affect this matter, the Court agrees
that the issues on appeal are sufficiently related to the Court's
retention of jurisdiction. There is a pending, independent
proceeding which bears upon the case, see Leyva, 593 F.2d at 863,
and judicial economy favors a stay, Judge Settle holds.
While a delay in proceedings certainly imposes some hardship on
both parties, the hardship or inequity that could result from the
Court ruling on Assaf's pending motion for class certification if
it in fact does not have jurisdiction over the case would be far
greater, Judge Settle explains. Further, the stay would only be for
a few months pending the resolution of Kleinsasser at the Ninth
Circuit and would not be indefinite as Progressive argues.
In consideration of judicial economy and the hardship or inequities
resulting from a stay, the Court concludes that Assaf has shown
good cause for a brief stay.
III. Order
Therefore, it is ordered that Plaintiff Assaf's motion to stay
proceedings is granted. The parties will file a joint status report
within 30 days of the Ninth Circuit's opinion in Kleinsasser
suggesting a briefing schedule for Assaf's pending motion to
certify class.
A full-text copy of the Court's Order dated March 7, 2022, is
available at https://tinyurl.com/yc7fr5jx from Leagle.com.
QG PRINTING: Sims' Bid to Certify Class Granted in Part
-------------------------------------------------------
In the class action lawsuit captioned as James Sims as an
individual and on behalf of all others similarly situated, v. QG
PRINTING II, LLC, a Connecticut limited liability company; 74 QG
PRINTING II LLC, business organization, form unknown, and DOES 1
through 50, inclusive, Case No.5:20-cv-01632-DMG-KK (C.D. Cal.),
the Hon. Judge Dolly M. Gee entered an order granting in part and
denying in part Sims' motion to certify class.
1. The Court certifies the following Class as to the
reporting time and hours worked claims, but not the
reimbursement claim:
"All current and former non-exempt press production
employees of Defendant QG Printing II LLC who worked at
the Defendant's Riverside and/or Merced facility in the
State of California at any time between April 6, 2016
through the present;"
2. The Court appoints James Sims as the representative of the
Class;
3. The Court appoints Larry W. Lee and Mai Tulyathan of
Diversity Law Group, P.C., and William L. Marder of
Polaris Law Group LLP as Class Counsel; and
4. Within one week of this Order, the parties shall meet and
confer and file a joint status report with a proposed
timeline for the distribution of the class notice.
On June 1, 2020, the Plaintiff Sims filed a complaint in Riverside
County Superior Court, asserting claims as an individual and on
behalf of all other similarly situated current and former employees
of Defendants QG Printing II, LLC and 74 6 QG Printing II, LLC.
Sims asserts claims for (1) failure to pay wages, (2) failure to
reimburse expenses, (3) failure to provide accurate wage
statements, (4) violation of California's Unfair Competition Law,
California Business & Professions Code section 17200 et seq., and
(5) violation of California's Private Attorneys General Act (PAGA),
California Labor Code.
QG Printing II, LLC removed to this Court on August 14, 2020,
invoking jurisdiction under the Class Action Fairness Act ("CAFA").
On January 14, 2021, the Court granted in part QG's motion to
dismiss or stay Sims' Complaint and, pursuant to the first-to-file
rule, stayed Sims' causes of action for failure to provide accurate
itemized wage statements in violation of Labor Code section 226(a)
and PAGA to the extent that he sought statutory damages and civil
penalties for the same violation.
Sims filed the instant Motion on December 17, 2021. Sims seeks to
certify a class to adjudicate two claims: (1) QG's alleged failure
to pay all earned wages based on QG's policy or practice of
requiring employees to "call-in," either by calling a toll-free hot
line or using an app or website, on their off hours before their
scheduled shift to confirm whether they will in fact be working
that particular scheduled shift, and (2) QG's alleged failure to
reimburse business expenses that employees incurred in connection
with the call-in policy and/or practice.
QG Printing Corporation provides printing services.
A copy of the Court's order dated March 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3wiHF8c at no extra charge.[CC]
QUEST INTERNATIONAL: Hong Appeals FLSA Suit Dismissal
-----------------------------------------------------
Plaintiffs Sung Eik Hong, et al., are appealing the dismissal of
the lawsuit entitled SUNG EIK HONG, YONG M. KOO, JOON G. KIM, KEVIN
K. LEE, YOON S. KIM, DONG IL LIM, and HUN MIN PARK, individually
and on behalf of all other employees similarly situated, Plaintiffs
v. Quest International Limousine, Inc., Mangil Park, and James
Park, Defendants, Case No. 1:19-cv-04336, in the U.S. District
Court for the Southern District of New York (New York City).
As previously reported in the Class Action Reporter, this class
action was brought pursuant to the Fair Labor Standards Act
("FLSA"), New York Labor Law ("NYLL") and New York Codes, Rules,
and Regulations ("NYCRR") to recover unpaid minimum wages and
overtime compensation, unlawfully retained gratuities, spread of
hours premium, and damages arising out of failure to provide pay
stubs and wage notifications owed to Plaintiffs for work performed
for Defendants.
The complaint relates that Plaintiffs worked for Defendants in
excess of 40 hours per week, without appropriate minimum wage or
overtime compensation for the hours that they worked each week.
Yet, the Defendants maintained a policy and practice of requiring
Plaintiffs to work in excess of 40 hours per week without paying
them minimum wage and overtime compensation required by federal and
state laws. Defendants also failed to maintain accurate
recordkeeping of their hours worked, and failed to pay Plaintiffs
appropriately for any hours worked, either at the straight rate of
pay, or for any additional overtime premium, says the complaint.
On February 3, 2022, Magistrate Judge Sarah Netburn entered an
Order stating that Plaintiffs have not proven their Fair Labor
Standards Act, New York Labor Law, or state common law claims by a
preponderance of evidence.
On February 4, 2022, judgment was entered in favor of Defendants,
and the case was closed.
The Plaintiffs now seeks a review of the Court's judgment.
The appellate case is captioned as Hong v. Quest International
Limousine, Inc., Case No. 22-520, in the United States Court of
Appeals for the Second Circuit, filed on March 11, 2022.[BN]
Plaintiffs-Appellants Sung Eik Hong, Kevin K. Lee, Yoon S. Kim,
Dong Il Lim, Hun Min Park, and Jhan Gyong Bak, individually and on
behalf of others similarly situated, appear pro se.
Defendant-Appellee Quest International Limousine, Inc., Mangil
Park, and James Park are represented by:
Errol Courtney Deans, Jr., Esq.
SONG LAW FIRM, LLC
400 Kelby Street, Suite 1900
Fort Lee, NJ 07024
Telephone: (201) 461-0031
E-mail: edeans@songlawfirm.com
RAUSCH STURM: Wins Bid to Compel Arbitration in Schmitt Suit
------------------------------------------------------------
In the lawsuit entitled VICTOR E. SCHMITT, on behalf of themselves
and all others similarly situated; and CHERYL SCHMITT, on behalf of
themselves and all others similarly situated, Plaintiffs v. RAUSCH,
STURM, ISRAEL, ENERSON & HORNIK, LLP, GREGORY W. ENERSON, JULIE A.
RAUSCH, PAUL THIELHELM, and DISCOVER BANK, Defendants, Case No.
8:21CV11 (D. Neb.), Senior District Judge Joseph F. Bataillon of
the U.S. District Court for the District of Nebraska grants the
Defendants' motion to compel arbitration.
The matter is before the Court on the Plaintiffs' Objection to
Magistrate Judge's Order. The Magistrate Judge's Order granted the
Defendants' motion to compel arbitration. The order found there was
a valid arbitration agreement between the parties.
Background
The Plaintiffs, Victor E. Schmitt and Cheryl Schmitt, on behalf of
themselves and all others similarly situated, filed a class action
lawsuit against Defendants, Rausch, Sturm, Israel, Enerson &
Hornik, LLP, Julie A. Rausch, William C. Sturm, Scott M. Israel,
Gregory W. Enerson, Robert Hornik, Paul Thielhelm, (collectively
"RS Defendants") and Discover Bank, on Jan. 1, 2021, and later
amended their complaint on April 16, 2021.
RS Defendants previously brought suit against the Plaintiffs on
behalf of Discover in order to recover credit card debt owed to
Discover, under Case Numbers CI 20-3870, and CI 20-3861 in Sarpy
County, Nebraska District Court. The Plaintiffs allege that
Discover ceased collection efforts from the Plaintiffs in 2019,
however, the Defendants deny that allegation. The Plaintiffs allege
that Discover waived collection of accruing interest and charged
off the accounts allegedly owed by the Plaintiffs. When the
Plaintiffs received complaints from RS Defendants and Discover,
they were confused and hired an attorney to assist with the suit.
The Plaintiffs allege in Count I that the Defendants violated
FDCPA, when they continued to communicate directly with consumers
who were known to be represented by an attorney. The Plaintiffs
argue that because of the standard forms used in violation of the
Fair Debt Collection Practices Act ("FDCPA"), they incurred actual
damages by having to hire an attorney, as well as emotional
distress. The Plaintiffs allege in Count II, that the Defendants
violated the Nebraska Consumer Protection Act ("NCPA"), Neb. Rev.
Stat. Section 59-1601, by filing county court debt collection
complaints, sending letters, and seeking and adding unauthorized
interest after the alleged accounts were charged off.
The Defendants filed a Motion to Compel Arbitration on Aug. 2,
2021. The Defendants argue that the Plaintiffs agreed to Discover's
terms and conditions associated with their Discover accounts. One
of the provisions in the terms and conditions was that either party
can elect to arbitrate any dispute that arises out of or relates to
the accounts. The Defendants argue that this suit relates to the
Plaintiffs' accounts with Discover, and the Defendants elect to
compel arbitration.
Mrs. Schmitt obtained her credit card from Discover on Oct. 20,
1994, and agreed to the terms and conditions. A specific term in
the agreement authorized Discover to "change any term or part of
this Agreement by sending her written notice at least 30 days
before the change is to become effective," and gave Mrs. Schmitt 30
days to object to the provision if she did not agree. In April
2003, Discover modified their terms and conditions to include an
arbitration clause.
Before the arbitration agreement became effective, Discover mailed
Mrs. Schmitt a letter titled "Notice of Right to Reject
Arbitration." Mrs. Schmitt never objected to the arbitration
clause.
Mr. Schmitt applied for a Discover credit card and received the
card on Jan. 10, 2005, along with Discover's 2004 terms and
conditions agreement. The terms and conditions advised Mr. Schmitt
to carefully read the agreement before using his account. The terms
and conditions stated that an arbitration clause was included on
page 12 and that Mr. Schmitt may reject the clause by providing
notice within 30 days. The Defendants argue that Mr. Schmitt
accepted the terms and conditions when he used his new account and
did not cancel it within 30 days of receiving it.
Magistrate Judge's Findings
The Plaintiffs argue the arbitration clause is unconscionable
because it was buried in the fine print of a piece of junk mail
that they do not recall seeing. The Plaintiffs argue that the
charges on their account incurred before the arbitration clause
took effect, therefore, the clause should not apply to those
charges. They argue that arbitration is substantively
unconscionable because it is one sided, costly, and forecloses the
ability to pursue a class action.
Magistrate Judge Cheryl Renae Zwart viewed the evidence and the
totality of the circumstances and found that the contract is not
unconscionable. The Magistrate Judge found that Mrs. Schmitt was
given notice of the new arbitration clause, given notice of her
right to reject the clause, and failed to reject the clause. The
Magistrate Judge acknowledges that there are no specific credit
card charges to show when the Plaintiffs' activity occurred, and
whether that was after the arbitration clause was made effective.
However, letters sent to the Plaintiffs, dated June 7, 2019, also
prove that the accounts were still active 30 days after the
arbitration clause took effect. The Magistrate Judge found that the
arbitration clause was not buried in the fine print like the
Plaintiff alleges. The arbitration clause was in the same size font
as the entire terms and condition agreement. Discover's 2003 and
2004 agreements included a notice of right to reject arbitration on
the first page.
The Magistrate Judge found that the arbitration clause was not one
sided because either party could elect to resolve a conflict by
arbitration. The Magistrate Judge also found that the Plaintiffs
provided no evidence that the costs or arbitration are prohibitive,
and instead only provided generalized statements.
Discussion
In their objection, the Plaintiffs first argue that the Magistrate
Judge erred in finding that the arbitration clause was not buried
or hidden within the fine print of the agreement. The Plaintiffs
argue that the letters from Discover to the Plaintiffs dated June
7, 2019, do not prove that they used their Discover account after
the arbitration clause took effect. The Plaintiffs also argue that
the Magistrate Judge erred in finding that a valid agreement to
arbitrate exists between the parties.
Pursuant to NECivR 72.3 and 28 U.S.C. Section 636(b)(1)(C), the
Court has conducted a de novo review of the record and adopts the
Magistrate Judge's findings. The arbitration clause was, in fact,
not buried within the text of the agreement. Although there was not
an arbitration clause when Mrs. Schmitt originally obtained a
Discover Credit Card, Discover retained the right to amend the
terms and conditions with 30 days' notice. In April 2003, Discover
modified their terms and conditions to include this arbitration
clause and mailed Mrs. Schmitt a letter titled "Notice of Right to
Reject Arbitration," which Mrs. Schmitt never objected. Mrs.
Schmitt never denied that she received the notice, only that it was
buried in the fine print of a piece of junk mail that she does not
recall seeing.
Therefore, the Court determines that the Magistrate Judge was
correct in finding that the arbitration clause was not buried
within the terms and conditions agreement and Mrs. Schmitt had
adequate notice of the new clause.
The Court further finds that the letters from Discover to the
Plaintiffs dated June 7, 2019, prove that the Plaintiffs used their
Discover accounts after the arbitration clause took effect,
therefore, accepting the terms and conditions, including the
arbitration clause. The Court finds that Mrs. Schmitt did in fact
receive a notice to object to the arbitration clause, did not
object to the clause, and therefore, accepted the clause.
The Court also finds that Mr. Schmitt did receive the terms and
conditions agreement when he received his credit card, used his
credit card, and, therefore, agreed to Discover's arbitration
clause. The Court has reviewed all the Plaintiffs' other objections
and finds them to be without merit, particularly given the number
of cases that have permitted arbitration. The Court has carefully
reviewed the Magistrate Judge's Order and adopts it in its
entirety.
Therefore, Judge Bataillon ordered that:
1. the Order Compelling Arbitration by Magistrate Judge Zwart
is adopted in its entirety;
2. the Plaintiffs' Objection to Magistrate Judge Zwart's Order
is overruled;
3. pursuant to the Magistrate Judge's Order, RS Defendants'
request to join arbitration is granted and the Plaintiffs'
claims against the RS Defendants will be submitted to
arbitration;
4. that Plaintiffs' dispute will be promptly submitted to
binding arbitration in accordance with the arbitration
clauses quoted and discussed in this opinion; and
5. the action is stayed pending arbitration. Every 90 days
from the date of this order, counsel will file a joint
status report with the Court regarding the progress of the
arbitration proceedings.
A full-text copy of the Court's Memorandum & Order dated March 7,
2022, is available at https://tinyurl.com/2p8kz9xp from
Leagle.com.
REAL HOSPITALITY: Final Approval of Class Settlement Deal Sought
----------------------------------------------------------------
In the class action lawsuit captioned as KIEFER BRAZIER, LUISAIRY
GONZALEZ PENA, and LATASHA AUGUSTUS, individually and on behalf of
all others similarly situated, v. REAL HOSPITALITY GROUP, LLC, and
REAL PAYROLL GROUP, LLC, Case No. 1:20-cv-08239-VM (S.D.N.Y.), the
Plaintiffs ask the Court to enter an order:
1. granting final approval of the Class Action Settlement
Agreement;
2. certifying the proposed Settlement Class pursuant to
Federal Rule of Civil Procedure 23;
3. approving Class Counsel's attorneys' fees and costs;
4. approving service payments to Named Plaintiffs;
5. approving the Class Administrator's fees; and
6. dismissing this Action with prejudice.
Real Hospitality is a hotel management company that works closely
with hotel managers.
A copy of the Plaintiffs' motion dated March 4, 2022 is available
from PacerMonitor.com at https://bit.ly/3ICQdtf at no extra
charge.[CC]
The Plaintiffs are represented by:
William Brown, Esq.
BROWN KWON & LAM LLP
521 Fifth Avenue, 17 th Floor
New York, NY 10175
Telephone: (212) 295-5825
Facsimile: (718) 795-1642
E-mail: wbrown@bkllawyers.com
RESIDEO TECHNOLOGIES: To Settle Securities Suit in D. Minn.
-----------------------------------------------------------
Resideo Technologies, 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, its
former CEO Michael Nefkens, its former CFO Joseph Ragan and its
former CIO Niccolo de Masi are named defendants of a class action
securities suit in the U.S. District Court for the District of
Minnesota styled "In re Resideo Technologies, Inc. Securities
Litigation," Case No. 19-cv-02863. On July 30, 2021, the company
executed a term sheet with plaintiffs' representatives setting
forth an agreement in principle to settle the claims alleged in the
complaint, as amended.
The complaint, as amended, asserts claims under Section 10(b) and
Section 20(a) of the Securities Exchange Act of 1934, broadly
alleging, among other things, that the defendants (or some of them)
made false and misleading statements regarding, among other things,
Resideo's business, performance, the efficiency of its supply
chain, operational and administrative issues resulting from the
spin-off from Honeywell, certain business initiatives, and
financial guidance in 2019.
The company executed a term sheet with plaintiffs' representatives
setting forth an agreement in principle to settle the claims
alleged in the complaint, as amended. The total amount to be paid
in settlement of the claims as set forth in the agreement in
principle is $55 million. Insurance recoveries of approximately $39
million are expected related to the settlement. The claim
settlement payment and related insurance recoveries have been paid
to an escrow account pending final court approval of the Securities
Litigation.
On August 18, 2021, the company and plaintiffs' representative
executed a definitive Stipulation and Agreement of Settlement
reflecting the terms of the agreement in principle and other
customary terms and conditions, including court approval of the
settlement. No objections to the settlement were filed with the
court. On January 27, 2022, the court held a final hearing to
consider whether the settlement is fair, reasonable, and in the
best interests of the settlement class and took a motion for
approval of the settlement under advisement.
Resideo is a global manufacturer and developer of technology-driven
products and solutions that provide critical comfort, residential
thermal and security solutions to over 150 million homes globally.
RESOURCE BIOLOGICS: Progressive Health Sues Over Unsolicited Ads
----------------------------------------------------------------
PROGRESSIVE HEALTH AND REHAB CORP., an Ohio corporation,
individually and as the representative of a class of
similarly-situated persons v. RESOURCE BIOLOGICS, LLC, a Delaware
limited liability company, Case No. 1:22-cv-00142-MWM (S.D. Ohio,
March 18, 2022) challenges the Defendant's practice of sending
“unsolicited advertisements" by facsimile in violation of the
Federal Telephone Consumer Protection Act of 1991, as amended by
the Junk Fax Prevention Act of 2005.
On November 18, 2021 and December 9, 2021, the Defendant sent
Plaintiff two fax advertisements. The Defendant has sent these
Faxes and other facsimile transmissions of unsolicited
advertisements to Plaintiff and the Class in violation of the TCPA,
says the suit.
On behalf of itself and all others similarly situated, the
Plaintiff brings this case as a class action asserting claims
against Defendant under the TCPA. The Plaintiff seeks to certify a
class comprising all that were sent these Faxes and other
unsolicited fax advertisements that were sent without prior express
invitation or permission and/or without compliant opt-out language
(to the extent the affirmative defense of established business
relationship (EBR) is alleged). The Plaintiff seeks statutory
damages for each violation of the TCPA and injunctive relief.
BRLLC is a start-up Vaccine and Biopharma company headquartered in
Germantown, Maryland.[BN]
The Plaintiff is represented by:
Matthew E. Stubbs, Esq.
MONTGOMERY JONSON LLP
600 Vine Street, Suite 2650
Cincinnati, OH 45202
Telephone: (513) 241-4722
Facsimile: (513) 786-9227
E-mail: mstubbs@mojolaw.com
- and -
Ryan M. Kelly, Esq.
ANDERSON + WANCA
3701 Algonquin Road, Suite 500
Rolling Meadows, IL 60008
Telephone: (847) 368-1500
Facsimile: (847) 368-1501
E-mail: rkelly@andersonwanca.com
RIVIAN AUTOMOTIVE: Faces Horvath Suit Over Drop in Share Price
--------------------------------------------------------------
ALBERT NICHOLAS HORVATH, individually and on behalf of all others
similarly situated Plaintiff v. RIVIAN AUTOMOTIVE, INC.; ROBERT J.
SCARINGE; CLAIRE MCDONOUGH; JEFFREY R. BAKER; JITEN BEHL; KAREN
BOONE; SANFORD SCHWARTZ; ROSE MARCARIO; PETER KRAWIEC; JAY FLATLEY;
PAMELA THOMAS-GRAHAM; MORGAN STANLEY & CO. LLC; GOLDMAN SACHS & CO.
LLC; J.P. MORGAN SECURITIES LLC; BARCLAYS CAPITAL INC.; DEUTSCHE
BANK SECURITIES INC.; ALLEN & COMPANY LLC; BofA SECURITIES, INC.;
MIZUHO SECURITIES USA LLC; WELLS FARGO SECURITIES, LLC; NOMURA
SECURITIES INTERNATIONAL, INC.; PIPER SANDLER & CO.; RBC CAPITAL
MARKETS, LLC; ROBERT W. BAIRD & CO. INCORPORATED; WEDBUSH
SECURITIES INC.; ACADEMY SECURITIES, INC.; BLAYLOCK VAN, LLC;
CABRERA CAPITAL MARKETS LLC; C.L. KING & ASSOCIATES, INC.; LOOP
CAPITAL MARKETS LLC; SAMUEL A. RAMIREZ & COMPANY, INC.; SIEBERT
WILLIAMS SHANK & CO., LLC; and TIGRESS FINANCIAL PARTNERS, LLC,
Defendants, Case No. 8:22-cv-00444 (C.D., Cal., Mar. 22, 2022) is a
federal securities class action on behalf of a class (the "Class")
of all persons and entities who purchased Rivian common stock
between November 10, 2021, and March 10, 2022, inclusive (the
"Class Period"), and all persons and entities who purchased Rivian
common stock pursuant and traceable to the Registration Statement
issued in connection with Rivian's November 2021 initial public
offering (the "IPO"), alleging violations of the Securities
Exchange Act of 1934.
According to the complaint, in the Registration Statement and
throughout the Class Period, the Defendants made materially false
and misleading statements, as well as failed to disclose material
adverse facts, about the Company's business and operations.
Specifically, the Defendants made false and misleading statements
and failed to disclose that: (1) Rivian would not meet its 2021
production and delivery targets; (2) Rivian's vehicles were
underpriced and the Company would need to substantially increase
prices; and (3) as a result, Defendants' representations about the
Company's business, operations, and prospects lacked a reasonable
basis.
The truth about Rivian's production capabilities and business
prospects began to emerge on December 16, 2021, when Rivian
disclosed that it would fall "a few hundred vehicles short of [its]
2021 production target of 1,200 [vehicles]." In addition to
admitting that production was lagging behind, Defendant Robert J.
Scaringe—the Company's Founder, Chief Executive Officer, and
Chairman - acknowledged that Rivian's vehicles were "very
aggressively priced" and that, against "the backdrop of inflation,"
the Company was "look[ing] at [their] pricing," says the suit.
Then, on March 10, 2022, Rivian announced disappointing financial
results for the fourth quarter of fiscal year 2021, including
revenue and adjusted losses per share that fell far below analysts'
estimates. Additionally, while analysts had expected Rivian to
produce 40,000 vehicles in 2022, the Defendants disclosed that the
Company expected to produce only 25,000 vehicles in 2022.
Rivian's stock price fell $3.11 per share, or approximately 7.5%,
from a close of $41.16 per share on March 10, 2022, to close at
$38.05 per share on March 11, 2022.
As a result of the Defendants' alleged wrongful acts and omissions,
and the decline in the market value of the Company's common stock
when the truth was revealed, the Plaintiff and other members of the
Class have suffered significant damages.
RIVIAN AUTOMOTIVE, INC. is an automotive technology company. The
Company designs and manufactures vans, trucks, and sports utility
vehicles, as well as offers repair and maintenance services.[BN]
The Plaintiff is represented by:
Stephen G. Larson, Esq.
Paul A. Rigali, Esq.
LARSON LLP
555 South Flower Street, Suite 4400
Los Angeles, CA 90071
Telephone: (213) 436-4888
Facsimile: (213) 623-2000
Email: slarson@larsonllp.com
prigali@larsonllp.com
-and -
Steven E. Bledsoe, Esq.
LARSON LLP
600 Anton Boulevard, Suite 1270
Costa Mesa, CA 92626
Telephone: (949) 516-7250
Facsimile: (949) 516-7251
Email: sbledsoe@larsonllp.com
ROSS HUNTER: Gets Continuance of Litigation Deadlines
-----------------------------------------------------
In the class action lawsuit captioned as MICHAEL ROGERS, RONALD
ACKERSON, and DAMIEN RIVERA et al., v. ROSS HUNTER, Secretary of
DCYF, in his official capacity, et al., Case No.
3:21-cv-05248-RAJ-MLP (W.D. Wash.), the Hon. Judge Michelle L.
Peterson entered an order that:
1. The motion of the parties seeking continuance of
litigation deadlines and request for status conference and
order is granted pursuant to W.D. Loc. R. 16(b)(6)
2. The Defendants will re-file their Motion for Summary
Judgment by March 3, 2022, to be noted for March 25, 2022.
However, the parties understand that the Court may not be
able to provide a ruling on Defendants' motion for summary
judgment prior to mediation.
3. The Plaintiffs' deadline to file their Motion for Class
Certification and Report of Class Certification Experts is
continued from March 4, 2022 to June 3, 2022.
4. The deadline for Defendants to file their opposition to
Plaintiffs' Motion for Class Certification is re-set from
the due date of April 22, 2022 to July 22, 2022.
5. The Plaintiffs' deadline to file their Reply re: Motion
for Class Certification is re-set from May 27, 2022 to
August 26, 2022.
6. The deadline for reports of expert witnesses and all other
motions for discovery is re-set from May 23, 2022 to
August 22, 2022, to be noted for consideration no later
than the third Friday thereafter.
7. The deadline for rebuttal expert disclosures under Fed. R.
Civ. P 26(a)(2) is re-set from June 24, 2022 to September
23, 2022.
8. The deadline for completion of discovery is extended from
June 24, 2022 to September 23, 2022.
9. The deadline for all dispositive motions and motions to
exclude expert testimony for failure to satisfy Daubert is
re-set from July 25, 2022 to October 24, 2022.
A copy of the Court's order dated March 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3walAbT at no extra charge.[CC]
The Plaintiffs are represented by:
Sarah R. Nagy, Esq.
Alison S. Bilow, Esq.
Nicholas B. Straley, Esq.
Jonathan Nomamiukor, Esq.
Bonnie A. Linville, Esq.
COLUMBIA LEGAL SERVICES
101 Yesler Way, Suite 300
Seattle, WA 98104
Telephone: (206) 464-0838
The Defendants are represented by:
Daniel J. Judge, Esq.
SENIOR COUNSEL
Anne Miller, Esq.
Cindy J. Gaddis, Esq.
Marko L. Pavela, Esq.
ASSISTANT ATTORNEYS GENERAL
SAFECO INSURANCE: 2nd Amended Case Management Sched Order Entered
-----------------------------------------------------------------
In the class action lawsuit captioned as WENDALL C. GARTH,
individually and on behalf of all others similarly situated v.
SAFECO INSURANCE COMPANY OF ILLINOIS, Case No. 1:21-cv-00602-JPC
(N.D. Ohio), the Hon. Judge J. Philip Calabrese entered a second
amended case management scheduling order:
-- Disclosure of Plaintiff's Class June 3, 2022
Certification expert and Deadline
to Move for Class Certification:
-- Disclosure of Defendant's Class July 13, 2022
Certification expert and
Deadline for Opposition to Class
Certification:
-- Deadline for reply in support of Sept. 6, 2022
class certification and exchange
of expert rebuttable reports:
-- Fact discovery cut-off: Oct. 12, 2022
On March 2, 2022, the parties jointly moved to extend the
case-management schedule by 30 days, explaining that they are still
participating in a private mediation.
Safeco operates as an insurance company.
A copy of the Court's order dated March 3, 2022 is available from
PacerMonitor.com at https://bit.ly/37HvQhL at no extra charge.[CC]
SAMSUNG ELECTRONICS: Holland Suit Asserts "Benchmark Cheating"
---------------------------------------------------------------
TRACEY HOLLAND, VIRGINIA ERB MARQUIS, and DON ROWLETT, individually
and on behalf of all others similarly situated, Plaintiffs v.
SAMSUNG ELECTRONICS AMERICA, INC., and SAMSUNG ELECTRONICS CO.,
LTD., Defendants, Case No. 2:22-cv-01348 (D.N.J., March 11, 2022)
is a class action suit against Defendants for the design,
manufacturing, marketing, and sale of smartphone models, including,
but not limited to, models and versions of the S10, S20, S21, and
S22, and versions designated as "FE," "Ultra," "Plus," or the like,
which engage in "benchmark cheating" in violation of the New Jersey
Consumer Fraud Act, the Texas' Deceptive Trade Practices-Consumer
Protection Act, and the Virginia Consumer Protection Act.
The Plaintiffs assert that the Samsung devices at issue contain a
mobile application called Game Optimizing Service that artificially
and selectively limits - or "throttles" - access to the devices'
processing power and other resources, purportedly with the
intention of preventing overheating to, and extending battery life
of, the devices. Specifically, Samsung has programmed these devices
to run at faster than normal speeds (or higher speeds than apps
operating in the real world) when they detect certain
"benchmarking" apps; i.e., performance-measuring tools used by
reviewers and consumers, including Plaintiffs, to test and compare
the speed and performance of smartphones and tablets.
Allegedly, Samsung's throttling manipulation was intended to
address a defect in the design of its devices: the fact that the
devices' batteries lacked the capacity and power delivery to keep
up with the demands placed upon them by Samsung's hardware and
software.
Samsung Electronics America, Inc. manufactures electronic products.
The Company offers televisions, digital cameras, cell phones,
storage devices, home appliances, security systems, smartwatches,
and computer products. Samsung Electronics America serves customers
worldwide.[BN]
The Plaintiffs are represented by:
Christopher A. Seeger, Esq.
David R. Buchanan, Esq.
Christopher L. Ayers, Esq.
SEEGER WEISS LLP
55 Challenger Road, 6th Floor
Ridgefield Park, NJ 07660
Telephone: (973) 639-9100
Facsimile: (973) 679-8656
E-mail: cseeger@seegerweiss.com
dbuchanan@seegerweiss.com
cayers@seegerweiss.com
- and -
Shauna B. Itri, Esq.
SEEGER WEISS LLP
1515 Market Street, Suite 1380
Philadelphia, PA 19102
Telephone: (215) 564-2300
Facsimile: (215) 851-8029
E-mail: sitri@seegerweiss.com
SCHRAIER INVESTMENTS: Fails to Pay Proper Wages, Weaver Suit Says
-----------------------------------------------------------------
KRISTINA N. WEAVER, and other similarly situated individuals,
Plaintiff v. SCHRAIER INVESTMENTS 116 LLC d/b/a TROPICAL SMOOTHIE
CAFE, and AMBER SCHRAIER, individually, Defendants, Case No.
2:22-cv-14089 (S.D. Fla., March 11, 2022) is an action brought by
the Plaintiff to recover money damages for unpaid minimum and
overtime wages pursuant to the Fair Labor Standards Act.
Plaintiff was employed by the Defendants from approximately August
15, 20019, through January 21, 2022, or 127 weeks. She worked as a
shift leader, and she had multiple responsibilities such as
restaurant attendant, cash register, unloading trucks, making
smoothies, cooking, cleaning, and performing general restaurant
work.
Schraier Investments 116 LLC, d/b/a Tropical Smoothie Cafe, is a
Florida-based franchised cafe/restaurant offering smoothies, cafes,
salads, and other fast food preparations.[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
SEABOARD CORPORATION: Antitrust Suit Pending in D. Minn.
---------------------------------------------------------
Seaboard Corporation 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 it is facing a class
action complaint in the U.S. District Court for the District of
Minnesota against several pork processors, including Seaboard Foods
LLC and Agri Stats, Inc., a data sharing service. The complaint
also named Seaboard Corporation as a defendant.
On June 28, 2018, twelve indirect purchasers of pork products makes
claims on behalf of putative classes of direct and indirect
purchasers were later filed in said District Court, and three
additional actions by standalone plaintiffs (including the
Commonwealth of Puerto Rico) were filed in or transferred to the
District Court. The consolidated actions are styled "In re Pork
Antitrust Litigation." The operative complaints allege, among other
things, that beginning in January 2009, the defendants conspired
and combined to fix, raise, maintain, and stabilize the price of
pork products in violation of U.S. antitrust laws by coordinating
their output and limiting production, allegedly facilitated by the
exchange of non-public information about prices, capacity, sales
volume and demand through Agri Stats, Inc. The complaints on behalf
of the putative classes of indirect purchasers also assert claims
under various state laws, including state antitrust laws, unfair
competition laws, consumer protection statutes, and common law
unjust enrichment. The relief sought in the respective complaints
includes treble damages, injunctive relief, prejudgment and
post-judgment interest, costs and attorneys' fees. On October 16,
2020, the District Court denied defendants' motions to dismiss the
amended complaints, but the District Court later dismissed all
claims against Seaboard Corporation without prejudice.
In 2021 and 2022, additional standalone plaintiffs filed similar
actions in other federal courts throughout the country, several of
which name Seaboard Corporation as a defendant. These actions have
been or are expected to be conditionally transferred to Minnesota
for pretrial proceedings pursuant to an order by the Judicial Panel
on Multidistrict Litigation.
Seaboard is primarily engaged in hog production and pork processing
in the United States.
SELECT PORTFOLIO: Collins Files FDCPA Suit in S.D. Florida
----------------------------------------------------------
A class action lawsuit has been filed against Select Portfolio
Servicing, Inc. The case is styled as Ronald J. Collins,
individually and on behalf of those similarly situated v. Select
Portfolio Servicing, Inc., Case No. 9:22-cv-80420-XXXX (S.D. Fla.,
March 16, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Select Portfolio Servicing, Inc. -- https://www.spservicing.com/ --
is a loan servicing company founded in 1989 as Fairbanks Capital
Corp. with operations in Salt Lake City, Utah and Jacksonville,
Florida.[BN]
The Plaintiff is represented by:
Jessica Lynn Kerr, Esq.
JESSICA L.KERR, P.A. DBA THE ADVOCACY GROUP
200 S.E. 6th Street, Suite 504
Fort Lauderdale, FL 33301
Phone: (954) 282-1858
Fax: (844) 786-3694
Email: service@advocacypa.com
SERVICE CORP: Faces Taylor Class Suit in Florida Court
------------------------------------------------------
Service Corporation International 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 it is
facing a class action suit captioned "Nancy Taylor, on behalf of
herself and others similarly situated v. Service Corporation
International and others," Case No. 20-cv-60709, in the United
States District Court Southern District of Florida Fort Lauderdale
Division.
This case was filed in April 2020 as a Florida class action
alleging that the allocation of prices among certain of its
cremation service contracts and cremation merchandise contracts,
and the related preneed trust funding, and the failure to disclose
commissions paid and sales practices associated with the sale of
third-party travel protection plans, violate the Florida Deceptive
and Unfair Trade Practices Act and constitute unjust enrichment.
Plaintiff seeks refunds, general, actual, compensatory and
exemplary damages, civil penalties, interest, and attorney fees.
Service Corporation is a provider of death-care products and
services, with a network of funeral service locations and
cemeteries unequaled in geographic scale and reach. At December 31,
2021, we operated 1,471 funeral service locations and 488
cemeteries, which are geographically diversified across 44 states,
eight Canadian provinces, the District of Columbia, and Puerto
Rico.
SIMON PROPERTY: Court Resets Pre-trial Deadlines in Cafe Suit
-------------------------------------------------------------
In the class action lawsuit captioned as CAFE, GELATO & PANINI LLC,
and DJAMES FOODS, INC., on behalf of themselves and all others
similarly situated, v. SIMON PROPERTY GROUP, INC., et al., Case No.
0:20-cv-60981-AMC (S.D. Fla.), the Hon. Judge Aileen M. Cannon
entered an order granting in part and denying in part defendants'
motion and resetting pre-trial deadlines as follows:
1. The Defendants' Motion to Modify Fourth Amended Scheduling
Order is granted in part and denied in part.
2. The Fourth Amended Scheduling Order's pre-trial deadlines
are modified in the following way:
a. The parties shall complete April 15, 2022
fact discovery on or before:
b. The parties shall exchange April 18, 2022
expert witness summaries or
reports on or before:
c. The parties shall exchange May 9, 2022
rebuttal expert witness
summaries or reports on or
before:
d. The parties shall complete May 23, 2022
expert discovery on or before:
e. The Plaintiffs shall file May 31, 2022
their Motion for Class
Certification on or before:
3. All other deadlines and instructions in the Court's Fourth
Amended Scheduling Order remain in effect.
Simon Property Group, Inc. is an American real estate investment
trust that invests in shopping malls, outlet centers, and
community/lifestyle centers.
A copy of the Court's order dated March 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3L1hjvk at no extra charge.[CC]
SIMPSON STRONG-TIE: Salhotra Loses Class Certification Bid
----------------------------------------------------------
In the class action lawsuit captioned as RAVI SALHOTRA, et al., v.
Simpson Strong-Tie Company, Inc. et al., Case No. 3:19-cv-07901-TSH
(N.D. Cal.), the Court entered an order denying motion for class
certification; granting defendants' request for judicial notice;
denying defendants' objections to plaintiffs' non-expert
declarations; granting defendants' motion to exclude expert
testimony; denying as moot plaintiffs' motion to strike defendants'
objections, defendants' motion to strike reply evidence, and
defendants' objections to new reply evidence; and granting in part
and denying in part motions to seal.
The Court finds superiority is not satisfied. The existence of
other actions related to the Plaintiffs' homes and foundations
signify a class interest in individually controlling the
prosecution of separate actions and indicate litigation concerning
Simpsons' products has already begun. These factors weigh against
class actions and a finding of superiority. Moreover, the
Plaintiffs failed to 8 provide adequate justification for
concentrating this litigation in this particular forum. The
Plaintiffs have failed to establish any particular reason why it
would be especially efficient for this Court to hear such a massive
class action lawsuit. The Court concludes the complexities of class
action treatment weigh against class certification.
The Plaintiffs brought this putative class action alleging that the
Defendants' construction connectors and fasteners prematurely
corrode, causing danger to Plaintiffs' properties and requiring
costly repairs.
This case concerns HD Strap-tie Holdowns and MAS Mudsil Anchors
created, marketed, and sold by the defendants. The Products are
embedded in homes' concrete foundations, nailed to structural
members, and covered with house wrap or exterior cladding.
The Products are made of steel and coated with a standard "Low" G90
galvanization, a thin layer of zinc, designed to protect the
Products from corrosion. Between 1992 and 2018, Simpson sold more
than 426 million Products. Simpson advertises its Products to
construction professionals in Simpson's Wood Construction Connector
Catalogs (the "Catalogs"). Simpson's Catalogs provide corrosion
information, recommendations, specifications, and warranties that
broadly apply to all of Simpson's connectors.
The Plaintiffs are California and Arizona homeowners with homes
containing Simpson's Products in the concrete foundations. The
Plaintiffs assert Simpson's Products are inherently defective and
prone to premature corrosion, thereby beaching Simpson's express
warranty.
On August 20, 2021, the Plaintiffs moved to certify the following
three classes:
National Class: All individuals in the United States who own
residential structures constructed with Simpson HD Strap-Tie
Holdowns and/or Simpson MAS Mudsill Anchors embedded in the
foundations and all prior owners of residential structures
who paid to repair and/or replace Simpson HD Strap-Tie
Holdowns and/or Simpson MAS Mudsill Anchors.
California Class: All individuals in California who own
residential structures constructed with Simpson HD Strap-Tie
Holdowns and/or Simpson MAS Mudsill Anchors embedded in the
foundations and all prior owners of residential structures
who paid to repair and/or replace Simpson HD Strap-Tie
Holdowns and/or Simpson MAS Mudsill Anchors.
Arizona Class: All individuals in Arizona who own residential
structures constructed with Simpson HD Strap-Tie Holdowns
and/or Simpson MAS Mudsill Anchors embedded in the
foundations and all prior owners of residential structures
who paid to repair and/or replace Simpson HD Strap-Tie
Holdowns and/or Simpson MAS Mudsill Anchors.
A copy of the Court's order dated March 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3tgW8iU at no extra charge.[CC]
SOCK GEEK: Ortega Files ADA Suit in S.D. New York
-------------------------------------------------
A class action lawsuit has been filed against Sock Geek LLC. The
case is styled as Juan Ortega, individually, and on behalf of all
others similarly situated v. Sock Geek LLC, Case No. 1:22-cv-02156
(S.D.N.Y., March 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Sock Geek -- https://www.sockgeek.com/ -- is located in Olathe,
Kansas and primarily operates in the Socks business industry.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
SOCLEAN INC: Litman Sues Over Failure to Disclose Levels of Ozone
-----------------------------------------------------------------
Richard Litman, individually and on behalf of all others similarly
situated v. SOCLEAN, INC., Case No. 1:22-cv-00250-PTG-IDD (E.D.
Va., March 4, 2022), is brought against the Defendant to recover
damages for economic relief as a result of false and misleading
representations with their The SoClean device and failure to
disclose that the SoClean device generates ozone or the levels of
ozone generated.
The Defendant manufactures and sells medical devices that clean
continuous positive airway pressure ("CPAP") machines. The SoClean
device is marketed as being compatible with many types of these
machines. The SoClean device uses ozone gas in an attempt to clean
and protect CPAP equipment. When ozone encounters organic material,
such as a CPAP device, its third oxygen atom can detach from the
ozone molecule and reattach to molecules of the other substance,
thereby altering the chemical composition of the other substance
and damaging that substance. The SoClean device is marketed as
being able to sanitize CPAP machines by generating ozone and
circulating it throughout the user's CPAP equipment.
During a cleaning cycle, the SoClean device consistently generates
prohibited amounts of ozone by volume of air circulating through
the device and the CPAP machine. Ozone levels remain within the
CPAP mask, hose and tank after cleaning by the SoClean device,
causing damage to the component parts of the CPAP machine owned by
the Plaintiff and other consumers. Packaging for the SoClean device
does not disclose that the SoClean device generates ozone or the
levels of ozone generated. Marketing materials for the SoClean
device do not disclose they generate ozone or the levels of ozone
generated.
The Defendant represents to consumers that it uses "activated
oxygen" to sanitize CPAP machines. In reality, the SoClean device
uses ozone to sanitize CPAP machines. The Defendant represents that
its devices use no "chemicals" or "harsh chemicals" to clean CPAP
machines. The Defendant markets its devices as "safe" for use to
clean and protect CPAP machines. The Defendant represents that its
devices use the same sanitizing process found in hospitals. The
Defendant represents that the filter cartridges in the SoClean
device convert "activated oxygen" back into "normal oxygen." The
Defendant represents the SoClean device is a "closed system" and
that no "activated oxygen" escapes the SoClean device. Ozone
generated by the SoClean device alters the composition of the very
CPAP machines that it is supposed to clean, causing damage to CPAP
machines (including but not limited to foam components) and
rendering the SoClean device essentially worthless.
The representations by the Defendant about the use and levels of
ozone, the lack of chemicals or harsh chemicals in the SoClean
device and the properties of the SoClean device are false and
misleading and have deceived Plaintiff and other consumers who have
relied on such representations when purchasing and using the
SoClean device. The Defendant continued to deny the effects of
ozone associated with the SoCleaner device while at the same time
reaping profits obtained through its non-disclosure and
concealment, says the complaint.
The Plaintiff is a consumer who purchased a SoClean device in a
consumer transaction.
SoClean tested, marketed, distributed, promoted and sold the
SoClean device.[BN]
The Plaintiff is represented by:
Theodore H. Huge, Esq.
THEODORE HUGE LAW FIRM, LLC
180 Spring Street
Charleston, SC 29403
Phone: (843) 805-8031
Fax: (843) 636-3375
Email: ted@thehugelawfirm.com
- and -
Michael C. Rader, Esq.
Edward "Kip" Robertson, Esq.
Edward Chip Robertson, Esq.
James P. Frickleton, Esq.
BARTIMUS FRICKLETON ROBERTSON RADER, P.C.
4000 W. 114th St., Suite 310
Leawood, KS 66211-2298
Phone: (913) 266-2300
Fax: (913) 266-2366
Email: mrader@bflawfirm.com
krobertson@bflawfirm.com
crobertson@bflawfirm.com
jimf@bflawfirm.com
SOLDIER'S KABANA: Rowe Class Suit Seeks OT Pay Under FLSA & NYLL
----------------------------------------------------------------
DALE ROWE, on behalf of himself, individually, and on behalf of all
others similarly-situated v. SOLDIER'S KABANA INC., and SOLDIER'S
RESTAURANT BUFFET INC., and LORRETTA WILLIAMS, individually, and
MARK WILLIAMS, individually, Case No. 1:22-cv-01492 (E.D.N.Y.,
March 17, 2022) is a civil action for damages and other redress
based upon alleged willful violations that Defendants committed of
Plaintiff's rights guaranteed to him by: (i) the overtime
provisions of the Fair Labor Standards Act; (ii) the overtime
provisions of the New York Labor Law; (iii) the NYLL's requirement
that employers furnish employees with a wage notice containing
specific categories of accurate information upon hire; (iv) the
NYLL's requirement that employers furnish employees with a wage
statement containing specific categories of accurate information on
each payday, NYLL Section 195(3); and (v) the NYLL's requirement
that employers not make unlawful deductions from employees' earned
wages.
The Plaintiff worked for Defendants -- two New York corporations
that operate as a single enterprise to run a Brooklyn-based
restaurant and the enterprise's two owners and day-to-day overseers
- - as a cook, whom Defendants called a "night supervisor," which
was a supervisory position in name only, from April 24, 2015, to
August 24, 2020.
According to the complaint, the Defendants failed to pay Plaintiff
the overtime wages lawfully due to him under the FLSA and the NYLL.
Specifically, the Defendants routinely required Plaintiff to work,
and Plaintiff did work, in excess of 40 hours in a workweek, but
paid the Plaintiff a flat weekly salary that operated by law to
cover only Plaintiff's first forty hours of work in a week. The
Defendants thus failed to pay Plaintiff at any rate of pay, let
alone at the statutorily-required overtime rate of one and one half
times his regular rate, for any hours that the Plaintiff worked in
a week over 40. The Defendants further violated the NYLL by failing
to provide Plaintiff with any wage notice upon his hire, let alone
an accurate one, or with any wage statement on each payday, let
alone an accurate statement, says the suit.
The Defendants additionally deducted money from Plaintiff's earned
wages that they claimed were taxes but then failed to pay that
money to the government and retained it for their own use, thereby
violating the NYLL's prohibition on employers making unlawful
deductions from their employees' wages, and also constituting the
common law tort of conversion.
Defendants Kabana and Buffet were and are New York corporations
with their principal place of business both located at 1444 Fulton
Street, Brooklyn, New York 11216. Both entities are also registered
with the New York State Department of State Corporation and
Business Entity Database to receive service of process at that same
address.
Thus, Plaintiff and all FLSA Plaintiffs are allegedly victims of
Defendants' pervasive practice of willfully refusing to pay their
employees overtime compensation for all hours worked per workweek
above forty, in violation of the FLSA.[BN]
The Plaintiffs are represented by:
Danielle Petretta, Esq.
Alexander T. Coleman, Esq.
Michael J. Borrelli, Esq.
BORRELLI & ASSOCIATES, P.L.L.C.
910 Franklin Avenue, Suite 200
Garden City, NY 11530
Telephone: (516) 248-5550
Facsimile: (516) 248-6027
SONY ELECTRONICS: Can Compel Arbitration in Guerriero Class Suit
----------------------------------------------------------------
In the case, JOHN GUERRIERO, individually and on behalf of all
others similarly situated, Plaintiff v. SONY ELECTRONICS INC.,
Defendant, Case No. 21 CV 2618 (VB) (S.D.N.Y.), Judge Vincent L.
Briccetti of the U.S. District Court for the Southern District of
New York granted the Defendant's motion to compel arbitration
pursuant to the Federal Arbitration Act and strike the class
allegations from the complaint.
I. Background
Plaintiff John Guerriero brings the putative class action claiming
that a type of digital camera manufactured by Defendant Sony has a
defective shutter. The Plaintiff resides in Yonkers, New York. He
alleges the Defendant manufactures electronics, including the a7iii
mirrorless digital camera. The Plaintiff alleges he purchased the
Camera online in 2019. According to him, the Camera's shutter does
not perform as promised and instead "fails relatively frequently."
The Defendant contends every Camera "is packaged in a box alongside
a hard copy of a one-year limited warranty." According to the
defendant, the Limited Warranty includes the mandatory arbitration
clause and class action waiver. It contends the Limited Warranty is
also available on its website. According to the Defendant, it has
no record the Plaintiff opted out of the arbitration provision.
The Plaintiff commenced the putative class action on March 26,
2021, on behalf of all New Yorkers who purchased the Camera.
Thereafter, the Defendant moved to compel arbitration in accordance
with the Limited Warranty and strike the class allegations from the
complaint.
II. Discussion
A. Motion to Compel Arbitration
The Defendant contends the Plaintiff agreed to arbitrate this
dispute.
Judge Briccetti agrees. The Defendant has demonstrated the
Plaintiff agreed to arbitration. It has demonstrated the
arbitration provision was presented clearly and conspicuously to
the Plaintiff. It has also shown the Plaintiff assented to the term
"through conduct that a reasonable person would understand to
constitute assent. Accordingly, the motion to compel arbitration
must be granted.
B. Motion to Strike Class Allegations
The Defendant further contends arbitration must proceed on an
individual basis and the class action allegations must be struck
from the complaint.
Again, Judge Briccetti agrees. He says, by assenting to the
arbitration provision of the Limited Warranty, the Plaintiff also
waived his right to participate in a class action. Thus, the
complaint's class allegations must be struck and the Plaintiff must
arbitrate the dispute on an individual basis. Accordingly, the
motion to strike must be granted.
III. Conclusion
The motion to compel arbitration and strike the class allegations
in the complaint is granted.
The parties are ordered to arbitrate their dispute on an individual
basis.
The action is stayed pending arbitration.
The Clerk is instructed to terminate the motion.
The Clerk is further instructed to administratively close the case,
without prejudice to either party moving by letter motion to reopen
the case within 30 days of the conclusion of the arbitration
proceedings.
A full-text copy of the Court's March 11, 2022 Opinion & Order is
available at https://tinyurl.com/mr3hy6c8 from Leagle.com.
SOUTHWESTERN ENERGY: Underpays Site Safety Advisors, Polis Says
---------------------------------------------------------------
JONATHAN M. POLIS, individually and for others similarly situated
v. SOUTHWESTERN ENERGY COMPANY, Case No. 5:22-cv-00048-JPB (N.D.
W.Va., March 11, 2022) is a class action brought by the Plaintiff
to recover unpaid overtime wages and other damages under the Fair
Labor Standards Act against the Defendant.
Polis performed work for Southwestern as a site safety advisor from
approximately January 2019 until August 2019. He and other
similarly situated site safety advisors regularly worked for
Southwestern over 40 hours each week but never received overtime
compensation, says the suit.
Southwestern Energy Company is a natural gas and natural gas
liquids producer in the United States.[BN]
The Plaintiff is represented by:
Anthony J. Majestro, Esq.
James S. Nelson, Esq.
POWELL & MAJESTRO PLLC
405 Capitol Street, Suite P-1200
Charleston, WV 25301
Telephone: (304) 346-2889
Facsimile: (304) 346-2895
- and -
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Richard M. Schreiber, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77005
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
rschreiber@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
11 Greenway Plaza, Suite 3025
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
SPELLMANS MARINE: Tucker Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Spellmans Marine Inc.
The case is styled as Henry Tucker, on behalf of himself and all
other persons similarly situated v. Spellmans Marine Inc., Case No.
1:22-cv-02187 (S.D.N.Y., March 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Spellmans Marine -- https://www.spellmansmarine.com/ -- is a boat
dealer in Hampton Bays, New York and has been creating the ultimate
boating experience for all of Long Island since 1958.[BN]
The Plaintiff is represented by:
Bradly G. Marks, Esq.
THE MARKS LAW FIRM, PC
155 East 55th St., Ste. 6a
New York, NY 10022
Phone: (646) 770-3775
Fax: (646) 867-2639
Email: brad@markslawpc.com
SPIRIT AEROSYSTEMS: Dismissal of Consolidated Suit Under Appeal
---------------------------------------------------------------
Spirit AeroSystems Holdings, 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
February 10, 2020, February 24, 2020, and March 24, 2020, three
separate private securities class action lawsuits were filed
against the Company in the U.S. District Court for the Northern
District of Oklahoma, its Chief Executive Officer, Tom Gentile III,
former Chief Financial Officer, Jose Garcia, and former Controller
(principal accounting officer), John Gilson. On April 20, 2020, the
Class Actions were consolidated by the court and on July 20, 2020,
the plaintiffs filed a Consolidated Class Action Complaint which
added Shawn Campbell, the company's former Vice President for the
737NG and B737 Max program, as a defendant. Allegations in the
Consolidated Class Action include (i) violations of Section 10(b)
of the Securities Exchange Act of 1934, as amended and Rule 10b-5
promulgated thereunder against the company and Gentile, Garcia and
Gilson, (ii) violations of Section 20(a) of the Exchange Act
against the individual defendants, and (iii) violations of Section
10(b) of the Exchange Act and Rule 10b-5(a) and (c) promulgated
thereunder against all defendants.
The facts underlying the consolidated class action relate to the
accounting process compliance independent review discussed in the
company's January 30, 2020 press release and described under
Management's Discussion and Analysis of Financial Condition and
Results of Operations - Accounting Review in Part II, Item 7 of the
Annual Report on Form 10-K for the year ended December 31, 2019,
and its resulting conclusions. The company voluntarily reported to
the SEC the determination that, with respect to the third quarter
of 2019, the company did not comply with its established accounting
processes related to potential third quarter contingent liabilities
received after the quarter-end. On March 24, 2020, the Staff of the
SEC Enforcement Division informed the company that it had
determined to close its inquiry without recommending any
enforcement action against the Company. In addition, the facts
underlying the Consolidated Class Action relate to the company's
disclosures regarding the B737 MAX grounding and Spirit's
production rate (and related matters) after the grounding. On
September 18, 2020, the company and individual defendants filed a
motion to dismiss the consolidated class action. That motion was
granted by the court on January 7, 2022, which denied leave to
amend and dismissed the consolidated class action with prejudice.
On February 4, 2022, the plaintiffs in the consolidated class
action filed a Notice of Appeal to the Tenth Circuit Court of
Appeals.
Spirit AeroSystems Holdings is one of the largest independent
non-original equipment manufacturer commercial aerostructures
designers and manufacturers in the world.
SPIRIT AEROSYSTEMS: Faces Securities Suit in Kansas Court
---------------------------------------------------------
Spirit AeroSystems Holdings, 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
October 5, 2020, a shareholder derivative lawsuit was filed against
the company (as nominal defendant), all members of the company's
Board of Directors, and Garcia and Gilson in the Eighteenth
Judicial District, District Court of Sedgwick County, Kansas.
Allegations in the Derivative Action 2 include (i) breach of
fiduciary duty, (ii) waste of corporate assets, and (iii) unjust
enrichment.
The facts underlying the derivative action relate to the accounting
process compliance independent review discussed in the company's
January 30, 2020 press release and described under Management's
Discussion and Analysis of Financial Condition and Results of
Operations - Accounting Review in Part II, Item 7 of the Annual
Report on Form 10-K for the year ended December 31, 2019, and its
resulting conclusions. The company voluntarily reported to the SEC
the determination that, with respect to the third quarter of 2019,
the company did not comply with its established accounting
processes related to potential third quarter contingent liabilities
received after the quarter-end. On March 24, 2020, the Staff of the
SEC Enforcement Division informed the company that it had
determined to close its inquiry without recommending any
enforcement action against the Company. In addition, the facts
underlying the derivative action relate to the company's
disclosures regarding the B737 MAX grounding and Spirit's
production rate (and related matters) after the grounding.
The derivative actions remain stayed at this point in time. The
company and the individual defendants have and continue to deny the
allegations in the derivative actions.
Spirit AeroSystems Holdings is one of the largest independent
non-original equipment manufacturer commercial aerostructures
designers and manufacturers in the world.
SPIRIT AEROSYSTEMS: Securities Suit in Oklahoma Remains Stayed
--------------------------------------------------------------
Spirit AeroSystems Holdings, 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
June 11, 2020, a shareholder derivative lawsuit was filed against
the company (as nominal defendant), all members of the company's
Board of Directors, and Garcia and Gilson in the U.S. District
Court for the Northern District of Oklahoma. Allegations in the
Derivative Action 1 include (i) breach of fiduciary duty, (ii)
abuse of control, and (iii) gross mismanagement.
The facts underlying the derivative action relate to the accounting
process compliance independent review discussed in the company's
January 30, 2020 press release and described under Management's
Discussion and Analysis of Financial Condition and Results of
Operations - Accounting Review in Part II, Item 7 of the Annual
Report on Form 10-K for the year ended December 31, 2019, and its
resulting conclusions. The company voluntarily reported to the SEC
the determination that, with respect to the third quarter of 2019,
the company did not comply with its established accounting
processes related to potential third quarter contingent liabilities
received after the quarter-end. On March 24, 2020, the Staff of the
SEC Enforcement Division informed the company that it had
determined to close its inquiry without recommending any
enforcement action against the Company. In addition, the facts
underlying the derivative action relate to the company's
disclosures regarding the B737 MAX grounding and Spirit's
production rate (and related matters) after the grounding.
The derivative actions remain stayed at this point in time. The
company and the individual defendants have and continue to deny the
allegations in the derivative actions.
Spirit AeroSystems Holdings is one of the largest independent
non-original equipment manufacturer commercial aerostructures
designers and manufacturers in the world.
STRAIGHT PATH: Del. Ch. Continues Bid to Certify Class as to TAF
----------------------------------------------------------------
In the case, IN RE STRAIGHT PATH COMMUNICATIONS INC. CONSOLIDATED
STOCKHOLDER LITIGATION, C.A. No. 2017-0486-SG (Del. Ch.), Judge Sam
Glasscock, III, of the Court of Chancery of Delaware continued the
Plaintiffs' Motion for Class Certification with respect to The
Arbitrage Fund, with leave to supplement the record.
I. Introduction
The privilege of a member of a stockholder class to represent that
class in a legal action is not a right. Among the attributes
required to enjoy that privilege is a willingness to act as a
fiduciary for the benefit of the class as a whole, and not for
individual interests not shared with the class at large. That
general rule has many permutations, but few more significant than
that non-public information obtained as class representative must
be used for the benefit of the class in the litigation, and not for
purposes of trading on that information in securities for private
gain.
The Plaintiffs sought to certify two stockholders of Straight Path
as lead representatives of the former stockholders of Straight
Path. One of the stockholders has withdrawn from this application.
II. Background
Before the Court is a pending motion for class certification
stemming from the sale of Straight Path to Verizon Communications,
Inc., in 2018. Plaintiffs JDS1, LLC and The Arbitrage Fund ("TAF"),
former stockholders of Straight Path, sought to certify a purported
class for receipt of damages flowing from diverted merger
consideration in connection with the Straight Path-Verizon sale in
2018 (the "Merger"). The Defendants opposed both the class and the
appointments of JDS1, and TAF as the representative plaintiffs.
JDS1 has withdrawn its application to so serve.
The proposed class is defined as "all record and beneficial holders
of Straight Path Class B Common Stock, as of Feb. 28, 2018 (the
date of the consummation of the Merger), who received Merger
consideration, together with their respective successors and
assigns," subject to certain exceptions (the "Proposed Class").
Plaintiff JDS1 is an investment vehicle that held Straight Path
Class B Common Stock at all pertinent times. It brought its
original complaint against the Defendants, as well as against three
directors of Straight Path (the "Special Committee Directors") on
July 5, 2017.10 Seeking dismissal from the case, the Special
Committee Directors made a "70-pages plus" proffer of confidential
materials (the "Confidential Proffer") to JDS1 via counsel on July
21, 2017. Specifically, the counsel who received the Confidential
Proffer were from the law firms Bernstein Litowitz Berger &
Grossmann LLP ("BLBG") and Labaton Sucharow LLP. The Special
Committee Directors were dismissed from the action without
prejudice later that month.
In the course of discovery, JDS1 indicated that it had a short
position on IDT stock "at times," including dates in 2017, 2018,
and early 2019.
Plaintiff TAF is a mutual fund managed by an investment advisor.
This same investment advisor manages certain other affiliates. TAF
first purchased shares in Straight Path on May 8, 2017. It filed
its original complaint via its counsel in a separate action on July
11, 2017.19 TAF's complaint did not name the Special Committee
Directors as defendants.
The counsel for JDS1 and TAF filed a Stipulation and Proposed Order
for Consolidation on July 14, 2017, which designated JDS1 and TAF
as "Co-Lead Plaintiffs," and designated BLBG, Labaton, and
Entwistle & Cappucci LLP as the "Co-Lead Counsel." The order was
granted on July 24, 2017.
Following the receipt of the Confidential Proffer by certain, but
not all, of the Co-Lead Counsel on July 21, 2017, TAF Affiliates
purchased several short positions in IDT stock, and they sold IDT
stock short at least once more in late 2017. TAF itself never
traded in IDT, but both TAF and its affiliates did make several
purchases in Straight Path.
Ardell Howard moved to intervene in the case on Oct. 14, 2020 as an
additional plaintiff. Per her declaration of Oct. 13, 2020, she
owned shares of Straight Path "at the time of the announcement of
the Merger and continued to hold such shares through the closing of
the Merger." She further indicated in that declaration that she
would adopt the operative amended complaint, filed Aug. 29, 2017
(the "Complaint"), and that "if called upon, she would also be
prepared to serve as a lead plaintiff and/or class representative."
Ardell has also represented that she has read and agrees to be
bound by the confidentiality order entered in the case on April 18,
2019 (the "Confidentiality Order"). Judge Glasscock granted
Ardell's motion to intervene on July 20, 2021, and she entered the
case as an individual plaintiff.
The litigation began on July 5, 2017. The Plaintiffs served the
amended Complaint, containing four counts. One of the counts was
mooted following the closing of the Merger, and three direct claims
for breach of fiduciary duty or aiding and abetting breach of
fiduciary duty against various defendants survive.
The IDT Defendants and Davidi Jonas each filed a motion for summary
judgment on July 6, 2021. Straight Path II denied both motions in
full.
Briefing on the Class Certification Motion began in January 2020
and ended in October 2021. Judge Glasscock held oral argument with
respect to the Class Certification Motion on Nov. 9, 2021, and he
deemed the matter fully submitted at the time the claims survived
summary judgment in Straight Path II. JDS1 withdrew its request to
serve as class representative on March 10, 2022.
III. Analysis
The Plaintiffs seek to certify the Proposed Class and to establish
TAF as the lead plaintiff litigating this action for the Proposed
Class. The IDT Defendants raised the question of whether either
JDS1 or TAF is a suitable representative plaintiff on the basis of
certain trades made in IDT and Straight Path stock after the
initiation of the suit. They also attacked each potential
representative plaintiff on the basis of purported discovery
misconduct and various other individual allegations. JDS1 has
withdrawn its motion to serve as class representative.
1. The Improper Trading Allegations
Judge Glasscock need no longer address the allegations made against
JDS1, which no longer seeks to be lead counsel. He does note that
JDS1 was the original plaintiff prior to the consolidation of the
suit and brought its complaint on July 5, 2017 while represented by
its counsel Labaton and BLBG. That original complaint named as
defendants the Special Committee Directors of Straight Path.
Judge Glasscock opines that although there is a factual difference
between trading in Straight Path and trading in IDT, the main
inquiry must still be whether TAF and its affiliates traded on
non-public information, as so doing would be incompatible with the
circumspection expected of voluntary fiduciaries, and thus would
make TAF an inappropriate lead plaintiff. He finds that the number
and timing of trades in Straight Path alleged to have been
undertaken by TAF and TAF Affiliates since the initiation of the
litigation are, frankly, troubling in light of TAF's position as a
volunteer fiduciary. Using non-public information obtained as a
fiduciary for personal gain is not consistent "with the behavior
expected of a self-designated fiduciary." Again, service as a class
representative is not a right that inheres in ownership of stock;
it is an equitable privilege extended by a court of equity to the
extent compatible with the best interests of the class and of
justice.
Accordingly, Judge Glasscock holds that denial of a class
representative status is no punishment, and requires only a finding
by the court that such service is not in the interests of the class
and of justice. However, the record is not sufficient to support
such a finding. Again, if TAF seeks to move forward as the
representative plaintiff in the action, Judge Glasscock will
require an evidentiary hearing with submission of facts by the
parties so that he may resolve the improper trading issue on a full
record.
2. Ardell Howard as a Potential Lead Plaintiff
Another path to class certification may exist. As noted at the
outset, there is an intervenor-plaintiff in the case who has
represented that, "if called upon," she would be prepared to serve
as a lead plaintiff or class representative.
Judge Glasscock additionally notes that the IDT Defendants have
previously indicated they would want to conduct some discovery
regarding Ardell as a class representative if she were to be named
the lead plaintiff moving forward. He urges the Plaintiffs and
Co-Lead Counsel to confer and determine their preferred route
forward with respect to the Class Certification Motion.
III. Conclusion
Judge Glasscock's Memorandum Opinion does not address the Rule
23(a) factors of typicality, adequacy, commonality, and numerosity,
or the Rule 23(b) framework, because at present no motion is
pending naming an adequate lead plaintiff in light of whom he can
assess certification of the Proposed Class. As such, it would be
premature to consider these issues now. If necessary, he will take
these concerns into consideration once the parties have informed
him how they will proceed.
For these reasons, the Class Certification Motion is continued with
respect to TAF, with leave to supplement the record. The parties
should confer and inform Judge Glasscock as to their preference for
moving forward with respect to the Class Certification Motion.
A full-text copy of the Court's March 11, 2022 Memorandum Opinion
is available at https://tinyurl.com/23yhf7x5 from Leagle.com.
Ned Weinberger -- nweinberger@labaton.com -- and Mark Richardson,
of LABATON SUCHAROW LLP, in Wilmington, Delaware; OF COUNSEL:
Jeroen van Kwawegen, Edward G. Timlin, and Alla Zayenchik, of
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP, in New York City;
Vincent R. Cappucci and Joshua K. Porter --
jporter@entwistle-law.com -- of ENTWISTLE & CAPPUCCI LLP, in New
York City, Attorneys for Plaintiffs JDS1, LLC and The Arbitrage
Fund.
Ned Weinberger and Mark Richardson, of LABATON SUCHAROW LLP,
Wilmington, Delaware; OF COUNSEL: Jeroen van Kwawegen, Edward G.
Timlin, and Alla Zayenchik, of BERNSTEIN LITOWITZ BERGER &
GROSSMANN LLP, in New York City, Attorneys for Intervenor-Plaintiff
Ardell Howard.
Rudolf Koch -- koch@rlf.com -- Kevin M. Gallagher, Daniel E.
Kaprow, John M. O'Toole, and Melissa A. Lagoumis of RICHARDS,
LAYTON & FINGER P.A., in Wilmington, Delaware; Thomas Ueble, of
McCOLLOM D'EMILIO SMITH UEBLER LLC, in Wilmington, Delaware; OF
COUNSEL: Jason Cyrulnik and Paul Fattaruso, of CYRULNIK FATTARUSO
LLP, in New York City, Attorneys for Defendants IDT Corporation,
Howard Jonas, and The Patrick Henry Trust.
Kevin R. Shannon, Berton W. Ashman, Jr., Jacqueline A. Rogers, and
David A. Seal, of POTTER ANDERSON & CORROON LLP, in Wilmington,
Delaware, Attorneys for Davidi Jonas.
TARGET CORP: Dominique-Tate Sues Over Benzene in Sanitizer Gel
--------------------------------------------------------------
LA NITA M. DOMINIQUE-TATE, on behalf of herself and all others
similarly situated, Plaintiff v. TARGET CORPORATION, Defendant,
Case No. 2:22-cv-00473-JAM-DB (E.D. Cal., March 14, 2022) is
brought against the Defendant for breach of express warranty,
breach of implied warranty, unjust enrichment, fraud, violation of
the Magnuson-Moss Warranty Act, the Drinking Water and Toxic
Enforcement Act, California's Consumer Legal Remedies Act, False
Advertising Law, and the Unfair Competition Law.
The case arises from Defendant's alcohol-based Born Basic Anti-bac
Hand Sanitizer gel which independent testing has recently revealed
suffers from benzene contamination. Benzene, a harmful carcinogen,
does not appear on the product label, on the ingredients list, in
Defendant's advertisements, or otherwise. Despite Defendant's
knowledge of the product's potential carcinogenicity, Defendant
sold and continues to sell the product at its retail locations and
on its website without providing consumers, including Plaintiff,
with any additional information about its potential health risks,
says the suit.
Target Corporation is an American big box department store chain
headquartered in Minneapolis, Minnesota.[BN]
The Plaintiff is represented by:
Gillian L. Wade, Esq.
Sara D. Avila, Esq.
Marc A. Castaneda, Esq.
MILSTEIN JACKSON FAIRCHILD & WADE, LLP
10990 Wilshire Blvd., 8th Floor
Los Angeles, CA 90024
Telephone: (310) 396-9600
E-mail: gwade@mjfwlaw.com
savila@mjfwlaw.com
mcastaneda@mjfwlaw.com
- and -
Ruben Honik, Esq.
David Stanoch, Esq.
HONIK LLC
1515 Market Street, Suite 1100
Philadelphia, PA 19102
Telephone: (267) 435-1300
E-mail: ruben@honiklaw.com
david@honiklaw.com
TESLA INC: Platt Sues Over Illegal Biometric Data Collection
------------------------------------------------------------
PETER PLATT, individually and on behalf of all similarly situated
individuals, Plaintiff v. TESLA, INC., a Delaware corporation,
Defendant, Case No. 2022LA000236 (Ill. Cir., 18th Jud., Dupage
Cty., March 11, 2022) is a class action complaint brought by the
Plaintiff against the Defendant for its violations of the Illinois
Biometric Information Privacy Act.
According to the complaint, the Defendant captured, collected,
stored, used, and otherwise obtained Plaintiff's and the Class
members' biometrics through its biometrically enabled in-cabin
cameras without obtaining their informed written consent and
without complying with BIPA. Specifically, in an effort to
facilitate its Autopilot features and help market its self-driving
capability to boost sales, the Defendant collects individuals'
biometrics in the form of their facial geometry so that it can
verify and make sure that individuals are paying attention to the
road while using its Autopilot advanced driver assistance system
and its premium Full Self Driving system, says the suit.
Tesla Inc. is an electric vehicle manufacturer and technology
company based in the United States.[BN]
The Plaintiff is represented by:
Eugene Y. Turin, Esq.
Timothy P. Kingsbury, Esq.
Andrew T. Heldut, Esq.
MCGUIRE LAW, P.C.
55 W. Wacker Drive, 9th Fl.
Chicago, IL 60601
Telephone: (312) 893-7002
E-mail: eturin@mcgpc.com
tkingsbury@mcgpc.com
aheldut@mcgpc.com
TEVA PHARMACEUTICALS: Fund Sues Over Copaxone Market Monopoly
-------------------------------------------------------------
LABOR-MANAGEMENT HEALTHCARE FUND, on behalf of itself and all
others similarly situated, Plaintiff v. TEVA PHARMACEUTICALS
INDUSTRIES LTD., TEVA PHARMACEUTICALS USA, INC., TEVA NEUROSCIENCE,
INC., and TEVA SALES & MARKETING, INC., Defendants, Case No.
2:22-cv-01345 (D.N.J., March 11, 2022) is a class action arising
out of Teva's alleged anticompetitive scheme to unlawfully thwart
generic competition in the United States and its territories for
its prescription drug Copaxone in violation of Section 16 of the
Clayton Act.
According to the complaint, Teva continued its scheme both before
and after Mylan Pharmaceuticals and Sandoz introduced a generic
version of Copaxone 40 mg by employing multiple tactics to prevent
the uptake of generic versions of Copaxone 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.
Absent the Defendants' 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, says the suit.
Plaintiff Labor-Management Healthcare Fund is a self-insured health
plan based in New York.
Teva Pharmaceuticals Industries Ltd. is an Israeli corporation
which owns 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
55 Challenger Road, 6th Floor
Ridgefield Park, NJ 07660
Telephone: (973) 639-9100
Facsimile: (973) 679-8656
E-mail: CSeeger@seegerweiss.com
- and -
Kenneth A. Wexler, Esq.
Justin N. Boley, Esq.
Tyler Story, Esq.
WEXLER BOLEY ELGERSMA LLP
55 W. Monroe Street, Suite 3300
Chicago, IL 60603
Telephone: (312) 346-2222
E-mail: kaw@wbe-llp.com
jnb@wbe-llp.com
tjs@wbe-llp.com
- and -
Arthur N. Bailey, Esq.
RUPP BAASE PFALZGRA CUNNINGHAM LLC
111 West 2nd Street, Suite 1100
Jamestown, NY 14701
Telephone: (716) 664-2967
E-mail: bailey@ruppbaase.com
TITLEMAX OF NEW MEXICO: Loses Judgment on Pleadings Bid in Romero
-----------------------------------------------------------------
In the case, JESSE ROMERO, Plaintiff v. TITLEMAX OF NEW MEXICO,
INC., Defendant, Case No. CV 17-00775 KG/SCY (D.N.M.), Judge
Kenneth J. Gonzales of the U.S. District Court for the District of
New Mexico issued a Memorandum Opinion and Order:
1. denying TitleMax's First Motion for Partial Summary
Judgment as to First, Second Third, and Fourth Causes of
Action in the Second Amended Complaint based on Claim
Preclusion (Res Judicata) and Issue Preclusion (Collateral
Estoppel);
2. denying TitleMax's Third Motion for Partial Summary
Judgment based on Judicial Estoppel as to the First,
Second, Third and Fourth Causes of Action in the Second
Amended Complaint;
3. granting TitleMax's Second Motion for Partial Summary
Judgment as to the Fifth Cause of Action in Plaintiff's
Second Amended Complaint for Conversion; and
4. denying TitleMax's First Rule 12(c) Motion for Judgment on
the Pleadings as to Plaintiff's Claim for Punitive Damages.
I. Introduction
Plaintiff Jesse Romero entered into three successive loan
agreements with Defendant TitleMax. Each loan was secured by the
Plaintiff's car. The Plaintiff's First Amended Complaint (FAC)
alleged that all three loans were unconscionable under statutory
and common law. After the Tenth Circuit resolved a dispute between
the parties about whether the Plaintiff could validly opt out of
arbitration on the third loan, the Plaintiff's claims on the first
two loans were arbitrated. The resulting Arbitration Award found in
favor of the Defendant.
Now before the Court is the Plaintiff's Second Amended Complaint
(SAC), which focuses only on the third loan. The SAC repeats the
same statutory and common-law unconscionability claims and adds a
conversion claim.
The Defendant has filed four motions asking for either summary
judgment or judgment on the pleadings on all five counts. In its
Preclusion and Judicial Estoppel Motions, the Defendant argues that
the Tenth Circuit decision and the Arbitration Award prevent
further litigation. Its Conversion Motion contends that there are
no genuine issues of material fact because it lawfully accepted and
retained insurance proceeds distributed after the totaling of the
Plaintiff's car. The Defendant's fourth motion asks the Court for
judgment on the pleadings on the Plaintiff's punitive damages
claim. All four Motions are fully briefed.
II. Background
The Plaintiff obtained three loans from the Defendant. All three
loans were secured with the Plaintiff's vehicle, a Jaguar, and all
had the same material terms, headings, clauses, and title. The
loans differed only in their amounts, identifying loan numbers,
interest rates, and dates signed. Each loan agreement had a "Waiver
of Jury Trial and Arbitration Provision."
In June 2018, the Plaintiff defaulted on Loan 3. On April 8, 2019,
the Jaguar, which was insured, was totaled in an accident. The
Defendant was a lienholder on the vehicle. The insurance company
paid the insurance proceeds totaling $2073.54 to the Defendant as
lienholder. The proceeds did not cover all sums owed on Loan 3 and
a balance of $403.23 remained, which the Defendant wrote off,
completely releasing the Plaintiff of any future monetary loan
obligations.
The SAC includes four unconscionability claims. These claims are
substantively the same as the claims in the FAC. Count I and Count
II allege violations of NMUPA which prohibits "unfair or deceptive
trade practices and unconscionable trade practices in the conduct
of any trade or commerce." Count I alleges that Debtor engaged in
an unconscionable trade practice in "the extension of credit or the
collection of debts" in violation of Sections 57-12-2(E)(1). The
Plaintiff asserts that Defendant violated Section 57-12-2(E)(1) by
convincing Plaintiff to take Loan 3 even though it was to his
financial detriment.
Count II alleges that the Defendant's extended credit in a manner
that "results in a gross disparity between the value received by a
person and the price paid" in violation of Section 57-12-2(E)(2).
The Plaintiff argues that the Defendant's loans were oversecured,
charging an interest rate ten times more than traditional lending
institutions. The Defendant's next two counts allege that it
engaged in unconscionable practices prohibited by the common law.
Count III focuses on procedural unconscionability, which "examines
the particular factual circumstances surrounding the formation of
the contract, including the relative bargaining strength,
sophistication of the parties, and the extent to which either party
felt free to accept or decline terms demanded by the other." The
Plaintiff argues that the Defendant's loans were procedurally
unconscionable because (1) "Defendant conducts its business by way
of contracts of adhesion," (2) "conducts no underwriting of any
kind," and (3) "engages in business practices intentionally
designed to trap its customers."
Count IV alleges substantive unconscionability which scrutinizes
"the legality and fairness of the contract terms themselves." The
Plaintiff alleges Loan 3 was substantively unconscionable because
it was (1) "oversecuritized," (2) "there was no justification,
legal or otherwise for the high interest rates the Defendant
charges," and (3) the "Defendant's amortization of its loans in
conjunction with the number of rollovers in which the Defendant
knows or should know a typical borrower will engage guarantee that
the Defendant's borrowers receive very little value."
Count V alleges that the Defendant is liable for conversion,
because after the Plaintiff's car was totaled, the Defendant
received the insurance proceeds.
The Plaintiff asks for rescission of the third loan agreement,
restitution to him of amounts paid on Loan 3, restitution to him
for the insurance proceeds Defendant received for his vehicle,
treble damages, punitive damages, permanent injunctive relief,
costs and attorney's fees and prejudgment and post-judgment
interest.
III. Analysis
A. Preclusion Motion
The Defendant's Preclusion Motion asks for summary judgment on all
of the Plaintiff's unconscionability claims. The Defendant argues
that the doctrines of either claim preclusion or issue preclusion,
also known as res judicata or collateral estoppel, prevent further
litigation, because the Arbitration Award necessarily decided all
factual and legal issues relating to Loan 3. The Plaintiff counters
that the Arbitration Award does not make findings as to Loan 3 and
"does not bind or even guide the Court in its independent analysis
of that third loan."
B. Judicial Estoppel Motion
The Defendant's Judicial Estoppel Motion argues that either the
judicial estoppel doctrine or the law of the case doctrine prevents
the Plaintiff from asserting that Loan 3 is a rollover or
refinancing loan and asks that all relating SAC allegations be
stricken on that basis. It argues that the Plaintiff took one
position in an interlocutory appeal before the Tenth Circuit that
is now inconsistent with the position he has taken before the
Court.
At issue in the appeal before the Tenth Circuit was whether the
Plaintiff could exercise his right to opt out of arbitration as
provided in a clause in each of his three loans or whether the
loans were interdependent, such that a failure to opt out of the
first loan barred him from opting out of successive loans. The
Defendant contended that because the purpose of each successive
loan was to "refinance the previous loan," the loans were
interdependent and the Plaintiff's failure to opt out of Loan 1 or
Loan 2 barred him from opting out of Loan 3.
In contrast, the Plaintiff argued that each loan was a separate new
loan. The Defendant interprets the Plaintiff's argument as an
assertion "that Loan 3 WAS NOT a refinance of Loan 2 which is
inconsistent with his legal position that Loan 3 IS now a refinance
of Loan 2."
C. The Conversion Motion
After the Plaintiff's insured car was totaled in an accident, the
insurance company paid the policy proceeds to the Defendant, based
on its security interest in the vehicle. The Plaintiff argues that
in accepting the proceeds, the Defendant committed the tort of
conversion. Conversion is "'the unlawful exercise of dominion and
control over property belonging to another in defiance of the
owner's rights, or acts constituting an unauthorized and injurious
use of another's property, or a wrongful detention after demand has
been made.'"
The Defendant seeks summary judgment on this claim. As a matter of
law, it states, its perfected interest in the car coupled with the
outstanding balance on Plaintiff's loan gave Defendant a right to
the insurance proceeds.
D. Punitive Damages Motion
The Plaintiff's two statutory claims under NMUPA seek treble
damages whereas the Plaintiff's two common-law conscionability
claim ask for punitive damages. The Defendant argues that the SAC
relies on the same conduct for all claims. In Hale v. Basin Motor
Co., 795 P.2d 1006 (N.M. 1990), the New Mexico Supreme Court held
that it was improper for a plaintiff to recover both statutory
treble damages and punitive damage for the same conduct. As a
result, the Defendant's Punitive Damage Motion argues that the
Plaintiff has not plausibly stated a claim for common-law punitive
damages.
The Plaintiff disagrees with Defendant's interpretation of Hale and
argues that Hale recognized that a party could not pursue duplicate
damages, "a party may pursue overlapping claims through trial and
must only elect an award after it has been made."
Plaintiff correctly reads Hale.
IV. Conclusion
After considering the parties' briefing, the record of the case,
including the Arbitrator Award, and the applicable law, Judge
Gonzales finds that the Plaintiff reserved his right to pursue his
Loan 3 claims in district court. Because the Plaintiff chose a
different forum for Loan 3, the Plaintiff did not agree to, nor did
the Arbitrator have the jurisdiction to consider matters relating
to Loan 3. Judge Gonzales further finds that the Plaintiff did not
have a full and fair opportunity to litigate Loan 3, so the
application of either claim preclusion or issue preclusion to his
Loan 3 unconscionability claims would be fundamentally unfair.
Judge Gonzales holds that the Defendant has not shown that the
doctrines of judicial estoppel or law of the case are relevant to
the Court's determination about whether Loan 3 was a refinancing or
rollover loan. The Tenth Circuit did not make any findings in
Defendant's appeal that conclusively decided that issue.
Furthermore, the Plaintiff did not advocate inconsistent positions
regarding the purpose of the loan. As the doctrines are
inapplicable, Judge Gonzales will deny the Defendant's Judicial
Estoppel Motion.
To prove conversion, a plaintiff must establish that a defendant
wrongfully or illegally holds or retains property of another. There
is no dispute that the Defendant had a perfected security interest
in the Plaintiff's car which gave him a right to insurance proceeds
after the vehicle was totaled. And the record indicates that the
Plaintiff never demanded that Defendant turn over the proceeds to
him. Rather, the evidence showed that Defendant acquiesced to the
remittance of those proceeds to the Plaintiff. There are no
material facts in dispute, and Judge Gonzales will grant the
Defendant's Conversion Motion.
The Defendant's Punitive Damages Motion asks the Court to find that
the Plaintiff has not made a plausible punitive damages claim
because should the Plaintiff be successful on both his statutory
and common-law claims, he is proh ibited from receiving duplicative
awards. But, Judge Gonzales finds that the Defendant's Motion does
not acknowledge that while the Plaintiff cannot accept two awards
based on the same conduct, the Plaintiff may pursue both remedies.
Only at the conclusion of the trial with a successful verdict on
both claims, must the Plaintiff make a choice as to remedies. For
this reason, Judge Gonzales will deny the Defendant's Punitive
Damages Motion.
For these reasons, (i) TitleMax's First Motion for Partial Summary
Judgment as to First, Second Third, and Fourth Causes of Action in
the Second Amended Complaint based on Claim Preclusion (Res
Judicata) and Issue Preclusion (Collateral Estoppel) is denied;
(ii) TitleMax's Third Motion for Partial Summary Judgment based on
Judicial Estoppel as to the First, Second, Third and Fourth Causes
of Action in the Second Amended Complaint is denied; (iii)
TitleMax's Second Motion for Partial Summary Judgment as to the
Fifth Cause of Action in Plaintiff's Second Amended Complaint for
Conversion is granted; and (iv) TitleMax's First Rule 12(c) Motion
for Judgment on the Pleadings as to Plaintiff's Claim for Punitive
Damages is denied.
A full-text copy of the Court's March 15, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/23yfd56m from
Leagle.com.
TOOTSIE ROLL: Stipulation to Modify Schedule in Maisel OK'd
-----------------------------------------------------------
In the class action lawsuit captioned as ELIZABETH MAISEL, v.
TOOTSIE ROLL INDUSTRIES, LLC, Case No. 3:20-cv-05204-SK (N.D.
Cal.), the Hon. Judge Sallie Kim entered an order granting
stipulation to modify schedule as follows
Current Date New Date
-- Plaintiff's class Cert. April 8, 2022 July 7, 2022
motion:
-- Defendant's class Cert. May 9, 2022 Aug. 8, 2022
opposition:
-- Plaintiff's Class Cert. June 9, 2022 Sept. 7, 2022
Reply:
-- Class Cert. Hearing: June 20, 2022 Sept. 19, 2022
Tootsie Roll is an American manufacturer of confectionery.
A copy of the Court's order dated March 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3IlS8SB at no extra charge.[CC]
TUBESCIENCE USA: Faces Worel Suit Over Retaliatory Termination
--------------------------------------------------------------
MINDY WOREL, individually and on behalf of all others similarly
situated, Plaintiff v. TUBESCIENCE USA, INC. and DOES 1 through 50,
inclusive, Defendant, Case No. 22STCV09630 (Cal. Super., Los
Angeles Cty., March 18, 2022) is a class action against the
Defendant for violations of the California Civil Code, the
California Public Policy, the California Labor Code, and the
California's Business and Professions Code including fraudulent
inducement, breach of contract, unlawful retaliation, wrongful
termination, failure to timely pay wages, failure to provide
accurate wage statements, waiting time penalties, and unfair
business practices.
The Plaintiff was hired by the Defendant as a lead recruiter on or
around September 8, 2020 until her termination on or around January
22, 2021 following her complaints regarding the company's
underpayment of her wages and violations of applicable labor laws.
TubeScience USA, Inc. is a film production company, with its
principal place of business located at 655 S. Santa Fe Ave., Los
Angeles, California. [BN]
The Plaintiff is represented by:
C. Genevieve Jenkins, Esq.
Zainah Alfi, Esq.
EXCELSIS LAW, P.C.
1901 Avenue of the Stars, 2nd Floor
Los Angeles, CA 90067
Telephone: (213) 340-0300
Facsimile: (213) 340-0200
E-mail: cgjenkins@excelsislaw.com
TYSON FOODS: Tenth Circuit Affirms Dismissal of Thornton's Claims
-----------------------------------------------------------------
In the case, ROBIN G. THORNTON; MICHAEL LUCERO, on behalf of
themselves and other similarly situated, Plaintiffs-Appellants v.
TYSON FOODS, INC.; CARGILL MEAT SOLUTIONS, CORP.; JBS USA FOOD
COMPANY; NATIONAL BEEF PACKING COMPANY, LLC, Defendants-Appellees,
RANCHERS-CATTLEMEN ACTION LEGAL FUND, UNITED STOCKGROWERS OF
AMERICA; PUBLIC JUSTICE, Amici Curiae, Case No. 20-2124 (10th
Cir.), the U.S. Court of Appeals for the Tenth Circuit affirmed the
district court's order dismissing plaintiffs' complaints.
I. Introduction
Plaintiffs-Appellants Robin Thornton and Michael Lucero allege that
the Defendants-Appellees use deceptive and misleading labels on
their beef products. In particular, the Plaintiffs contend that the
"Product of the U.S.A." label on the Defendants' beef products is
misleading and deceptive in violation of New Mexico law because the
beef products do not originate from cattle born and raised in the
United States.
But the federal agency tasked with ensuring that meat labels are
not misleading or deceptive preapproved the labels at issue. And
critically, the governing federal statutory scheme -- the Federal
Meat Inspection Act (FMIA), 21 U.S.C. Sections 601-695 -- includes
an express preemption provision that prohibits states from imposing
any "labeling requirements in addition to, or different than" the
federal requirements. In seeking to establish that the Defendants'
federally approved labels are nevertheless misleading and deceptive
under state law, the Plaintiffs aim to impose labeling requirements
that are different than or in addition to the federal
requirements.
Accordingly, the Tenth Circuit concludes that the Plaintiffs'
deceptive-labeling claims are expressly preempted by federal law.
It further agrees with the district court that the Plaintiffs fail
to state a claim for false advertising.
II. Background
Thornton is a consumer who purchased the Defendants' beef from
various retail stores. She filed a class-action complaint in state
court against the Defendants, alleging that their labels deceived
her and other similarly situated consumers into paying higher
prices for beef based on the mistaken belief that it originated
from cattle born and raised in this country. Lucero is a "producer
of beef cattle with a multi-generational history of ranching in New
Mexico." He filed a separate class-action complaint, alleging that
he and other similarly situated ranchers are paid less for their
domestic cattle as a result of the Defendants' conduct.
According to both complaints, since 2015, the Defendants have
imported live cattle from other countries, slaughtered and
processed the cattle here, and labeled the resulting beef products
as "Products of the USA." The Defendants place the same "Product of
the USA" label on already-slaughtered beef that they import into
this country.
The Plaintiffs allege that these labeling practices are misleading,
fraudulent, and deceptive under New Mexico law. Accordingly, they
bring state-law claims for unjust enrichment and violation of the
New Mexico Unfair Practices Act (UPA), Sections 57-12-1 to
57-12-26. Thornton additionally asserts a
breach-of-express-warranty claim, and Lucero sought to amend his
complaint to replace his UPA claim with a claim under the New
Mexico Antitrust Act, Section 57-1-1 to 57-1-19.
After removing both cases to federal court, the Defendants moved to
dismiss. The district court granted the motions and denied Lucero's
motion to amend as futile, concluding that federal preemption
barred all the Plaintiffs' claims, including the claim that Lucero
sought to add. It alternatively concluded that, for various
reasons, the Plaintiffs failed to state a claim under any of their
theories of liability, including failing to state a
false-advertising claim. It also declined to abstain from
exercising jurisdiction under the primary-jurisdiction doctrine.
The Plaintiffs appeal each ruling. The Tenth Circuit reviews de
novo.
III. Analysis
A. Labeling Claims
The Plaintiffs argue that the district court erred in dismissing
their state-law labeling claims as preempted by federal law. First,
they urge the Tenth Circuit to apply a presumption against
preemption. Second, they argue that because Section 678 allows
states to exercise concurrent jurisdiction to prevent misbranding
and because they have alleged misbranding, their claims are not
preempted. Third, the Plaintiffs next suggest that because the
label "Product of the U.S.A." is optional, rather than mandatory,
their claims are not preempted. Finally, the Plaintiffs next
attempt to analogize Section 678 to the preemption provision in the
Federal Cigarette Labeling and Advertising Act (FCLAA).
In sum, the Tenth Circuit holds that each of the Plaintiffs'
state-law labeling claims -- unjust enrichment, breach of warranty,
violation of the UPA, and violation of state antitrust law --
attempt to establish a labeling requirement different than that
imposed and approved by the USDA and the FSIS under federal law.
These claims are therefore preempted under Section 678,11 and the
Tenth Circuit affirms the district court's decision on that ground,
without reaching its alternative holdings or the Plaintiffs'
various challenges to those alternative holdings.
B. False-Advertising Claims
The district court dismissed the Plaintiffs' false-advertising
claims for several reasons, including that the complaint alleged
"third parties and not the Defendants themselves produced the false
advertisements." On appeal, the Plaintiffs do not dispute the
district court's assessment that defendants did not produce the
allegedly false advertisements; instead, they argue that the
district court erred by failing to join those third parties as
indispensable parties.
But this is not an issue of indispensable parties, the Tenth
Circuit holds. It is an issue of the Plaintiffs' inadequate
pleading. As the Defendants point out, the complaints barely
reference advertising (each use the word "advertising" only twice,
in complaints that are over 20 pages long and include over 65
numbered paragraphs) and include only conclusory assertions
regarding the Defendants' participation in such advertising. The
complaints also each include a single paragraph composed of pasted
images of labels and advertising, images that appear to show that
the advertising was created by third-party retailers, not
defendants. And again, the Plaintiffs do not challenge the district
court's conclusion that they failed to allege defendants engaged in
false advertising; nor do they rebut, in their reply brief, the
Defendants' similar assertion on appeal.
Thus, the Tenth Circuit concludes that the Plaintiffs' complaints
do not state a false-advertising claim against the Defendants, and
it affirms the district court's dismissal of the false-advertising
claims on that basis.
IV. Conclusion
Because the Plaintiffs' state-law claims are preempted by federal
law and because they fail to state a claim against the Defendants
for false advertising, the Tenth Circuit affirmed the district
court's orders dismissing their complaints and denying leave to
amend as futile. As a final matter, it granted the motion to file
an amicus brief.
A full-text copy of the Court's March 11, 2022 Order is available
at https://tinyurl.com/3tx2mvm8 from Leagle.com.
A. Blair Dunn -- abdunn@ablairdunn.com of Western Agriculture,
Resource And Business Advocates, LLP (Marshall J. Ray of Law Office
of Marshall J. Ray, with him on the briefs), in Albuquerque, New
Mexico, for the Plaintiffs-Appellants.
Aaron D. Van Oort -- aaron.vanoort@faegredrinker.com -- (Tyler A.
Young -- tyler.young@faegredrinker.com -- Michael M. Sawers --
michael.sawers@faegredrinker.com -- and Martin J. Demoret, with him
on the brief), of Faegre Drinker Biddle & Reath LLP, in
Minneapolis, Minnesota, and in Des Moines, Iowa, for the
Defendants-Appellees.
Leah M. Nicholls, David S. Muraskin, Public Justice, P.C., in
Washington, D.C., for Amici Curiae.
U.S. BANCORP: $250K FLSA Settlement in Jackson Suit Wins Approval
-----------------------------------------------------------------
In the case, JENNIFER JACKSON, Individually and on behalf of all
others similarly situated, Plaintiffs v. U.S. BANK NATIONAL
ASSOCIATION, Defendants, Case No. 20-2310-EFM (D. Kan.), Judge Eric
F. Melgren of the U.S. District Court for the District of Kansas
granted the Plaintiff's Unopposed Motion for Approval of FLSA
Settlement Agreement.
I. Background
Plaintiff Jackson brings the collective action against the
Defendants U.S. Bancorp and U.S. National Bank Association under
the Fair Labor Standards Act, 29 U.S.C. Section 201, et seq.
("FLSA"). The Plaintiff commenced the collective/class action on
June 24, 2020.
The Court granted the Parties' Joint Stipulation Regarding
Conditional Collective Action Certification on Nov. 10, 2020, and
ordered that notice be sent to "all hourly call-center employees
who worked for U.S. Bancorp and/or U.S. Bank National Association
in positions that make and/or take queued outbound and/or inbound
customer calls, anywhere in the United States, at any time from
Dec. 11, 2017 through the final disposition of this matter." The
Order expressly granted conditional certification "only for
purposes of facilitating a potential prompt and efficient
resolution of the matter," and rendered no judgment on whether the
call-center employees were similarly situated.
Since then, 1,140 persons have filed consent forms to opt in to the
collective action. Combined with the seven individuals who opted in
to companion litigation, there are 1,147 members of the Settlement
Collective.
The Parties have engaged in extensive litigation, including
contesting the appropriate scope of discovery. The discovery,
formal and informal, has been extensive. Plaintiff Jackson also
served a full set of written discovery on the Defendants. The
Defendants have served approximately 248 sets of formal written
discovery in return. Each opt-in Plaintiff has been required to
complete a written survey for the Defendants, and the Defendants
have deposed Plaintiff Jackson and nine opt-in Plaintiffs.
The Parties engaged in extensive arms-length negotiations before
entering into a Nov. 30, 2021 Memorandum of Understanding ("MOU")
regarding the resolution of the matter that addressed the principal
terms of the agreement between them. On Jan. 25, 2022, the Parties
executed their formal Settlement Agreement.
During the negotiations, the parties exchanged substantial data
showing the days and weeks worked and compensation received by
Plaintiff Jackson and the Settlement Collective members, including
extensive documentation relating to the Defendants' practices,
members' job duties, and the Defendants' efforts to comply with the
FLSA and related state wage and hour laws. Based on this data, the
parties created damages calculations and exchanged numerous offer
and demand communications over a two-month period.
The Agreement provides for the following settlement: Gross
Settlement Amount - $250,000; Collective Counsel's Attorneys' Fees
and Costs - $100,000; and Plaintiff Jackson's Service Award -
$2,500.
Under the settlement, each member will receive a pro rata
allocation of the Net Settlement Amount based on the number of
workweeks worked by that member during the applicable time period.
The Net Settlement Amount is divided into individual payments to
each Settlement Collective Member, including: (1) a $25 base award,
and (2) a pro rata share of the Net Settlement Amount less the base
award, derived from the number of weeks worked within the period of
Dec. 11, 2017 to the date of the order approving the settlement.
The parties estimate that members will receive an average award of
around $120.
Plaintiff Jackson also executed an Individual Release Agreement in
her role as Named Plaintiff, and in further consideration for her
Service Award. The Settlement Agreement expressly refrains from any
resolution of the propriety of collective treatment of the action
under the FLSA.
The Parties further agree that the Settlement Agreement does not
constitute a determination or admission that any group of similarly
situated employees exists to maintain a collective action under the
FLSA, and in the event that the Settlement Agreement or a
subsequent settlement in the Lawsuit by the Parties is not approved
by the Court, the Parties agree that they will return to the status
quo ante and that the Defendant may argue that collective treatment
is not proper under the FLSA.
II. Analysis
After reviewing the parties' joint submission, Judge Melgren
concludes that the Settlement Agreement should be approved. He
finds that (i) the settlement resolves a bona fide dispute; (ii)
the results of the settlement are fair and reasonable; (iii) the
settlement resulted after extensive negotiations over a two-month
period; (iv) the Settlement Agreement provides for reasonable
attorneys' fees ($100,000 is 40% of the Gross Settlement Amount);
and (v) the Settlement Agreement includes a $2,500 Incentive Award
to Named Plaintiff Jackson which is within the range of similar
incentive awards.
III. Disposition
For these reasons, Judge Melgren granted the Plaintiffs' Unopposed
Motion for Approval of FLSA Settlement Agreement. The Settlement
Agreement is approved, including but not limited to (a) the
allocation formula by which the Individual Settlement Payments to
Plaintiffs will be determined; (b) the time-line as set forth in
the Settlement Agreement; (c) the retention of Rust Consulting,
Inc., as the settlement administrator, (d) the Collective Counsel's
Attorney's Fees and Costs; and (e) the Service Award to Named
Plaintiff Jackson.
The Individual Release Agreement between Named Plaintiff Jackson
and Defendants (Exhibit A(2) to the Settlement Agreement) is
approved.
Judge Melgren dismissed with prejudice the Plaintiffs listed in
Exhibit A(1) to the Settlement Agreement and the action.
Without affecting the finality of the Order in any way, the Court
retains continuing and exclusive jurisdiction over the action for
the purpose of administration and enforcement of the Settlement
Agreement.
A full-text copy of the Court's March 11, 2022 Memorandum & Order
is available at https://tinyurl.com/ythk2z83 from Leagle.com.
UMPQUA BANK: Must File Bid for Summary Judgment by May 5
--------------------------------------------------------
In the class action lawsuit captioned as SHELA CAMENISCH, et al.,
v. UMPQUA BANK, Case No. 3:20-cv-05905-RS (N.D.Cal.), the Hon.
Judge Richard Seeborg entered an order that the defendant may file
its motion for summary judgment until May 5, 2022, and set it for
hearing on June 9, 2022.
The Court said, "The Defendant has filed an administrative motion
asking for a briefing schedule to be set that will allow its
planned motion for summary judgment to be heard on June 9, 2022,
the same date set for plaintiff's motion for class certification.
In the event plaintiffs would like to have more than the two weeks
provided by the rules to prepare their opposition to any such
motion, the parties may stipulate to any extended briefing
schedule, as long as there is at least two weeks between the filing
of the reply and the hearing date."
Umpqua Bank, is a financial holding company based in downtown
Portland, Oregon, United States.
A copy of the Court's order dated March 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3terNBI at no extra charge.[CC]
UNIFUND CCR: Court OK's Compliance With Final Order in Rule Suit
----------------------------------------------------------------
In the lawsuit titled BETH RULE AND JENNIFER RIEDY, Plaintiffs v.
UNIFUND CCR, LLC, Defendant, Case No. 2:20-cv-00990-MPK (W.D. Pa.),
Magistrate Judge Maureen P. Kelly of the U.S. District Court for
the Western District of Pennsylvania grants the parties' Joint
Motion to Approve Compliance with Final Order and Judgment and
Class Action Settlement Agreement.
The Court approves Unifund's compliance with the Final Order and
Judgment and Class Action Settlement Agreement. Unifund's proposal
for resolving the issue with the Excluded Persons is approved. The
Plaintiffs and Unifund will notify each of the Excluded Persons of
the relief described in Paragraph 11 of the Motion in a letter in
substantially the same form as Exhibit B to the Motion.
The Plaintiffs and Unifund will file a Stipulation of Dismissal
dismissing the case with prejudice once the letters have been sent
to the Excluded Persons.
A full-text copy of the Court's Order dated March 7, 2022, is
available at https://tinyurl.com/a7aa7tde from Leagle.com.
UNITED AIRLINES: Voluntary Separation Program Deceptive, Says Suit
------------------------------------------------------------------
DONNA LOUCKS, ROXANN MERLINI, and JO GAWLER, individually and on
behalf of all others similarly situated, Plaintiff v. UNITED
AIRLINES, INC., UNITED AIRLINES 36-MONTH SUPPLEMENTAL BENEFIT PLAN,
and UNITED AIRLINES VOLUNTARY SEPARATION LEAVE PROGRAM, Defendants,
Case No. 2:22-cv-01604 (C.D. Cal., March 10, 2022) arises from the
Defendants' wrongful denial of the benefit of the United Airlines
Frontline Voluntary Separation Leave program to Plaintiffs and
other similarly situated former employees, in violation of the
Employee Retirement Income Security Act of 1974.
According to the complaint, as part of its effort to reduce its
workforce, United promised its employees that if they retired and
within three years after it offered a voluntary separation program,
those employees would receive benefits under that program if those
benefits were superior to what the employees had received at
retirement. As a further inducement to employees to participate in
"early out" programs or otherwise simply retire if they were
eligible to do so, on August 17, 2017, a company-wide letter was
issued by Oscar Munoz, then United's CEO. The letter promised that
if United offered "an early out within 36 months after you retire,
you would be eligible for the financial benefits of the program
even after retiring."
Plaintiffs Loucks, Merlini, and Gawler, as well as the Class of
similarly situated individuals, retired from United within the 36
months preceding January 21, 2021, but were denied the benefits of
the VSL program.
United asserted the VSL program was not an "early out" program and
that, therefore, the Letter was inapplicable. However, in both form
and substance, except for the greater benefits offered, the VSL
program was identical to the VSP1 and VSP2 voluntary separation
programs offered by United between August 17, 2017, and January 21,
2021, both of which were considered early out programs, added the
suit.
United Airlines, Inc. provides commercial airline services.[BN]
The Plaintiffs are represented by:
Jeffrey Lewis, Esq.
KELLER ROHRBACK L.L.P.
180 Grand Avenue, Suite 1380
Oakland, CA 94612
Telephone: (510) 463-3900
Facsimile: (510) 463-3901
E-mail: jlewis@kellerrohrback.com
- and -
Mark D. DeBofsky, Esq.
DEBOFSKY SHERMAN CASCIARI REYNOLDS, P.C.
150 N. Wacker Dr., Suite 1925
Chicago, IL 60606
Telephone: (312) 561-4040
Facsimile: (312) 929-0309
E-mail: mdebofsky@debofsky.com
- and -
David S. Preminger, Esq.
KELLER ROHRBACK L.L.P.
1140 Avenue of the Americas, Ninth Floor
New York, NY 10036
Telephone: (646) 380-6690
Facsimile: (646) 380-6692
E-mail: dpreminger@kellerrohrback.com
UNITED STATES: Beasley Balks at U.S. Navy's MRR Process
-------------------------------------------------------
LAKIA BEASLEY, RICHARD HENDERSON, on behalf of themselves and all
others similarly situated, Plaintiffs v. CARLOS DEL TORO, SECRETARY
OF THE NAVY, UNITED STATES OF AMERICA, in his official capacity,
and UNITED STATES DEPARTMENT OF THE NAVY, Defendants, Case No.
1:22-cv-00667 (D.D.C., March 10, 2022) is brought by the Plaintiffs
to change the U.S. Navy's unlawful policy and practice of
separating Plaintiffs and Class members from the military via the
Medical Retention Review (MRR) process without assessing their
eligibility for, and referring them to, the duty-related path of
the Disability Evaluation System (DES) to obtain disability
benefits.
According to the complaint, the Navy and the Marine Corps are
refusing to refer eligible Reservists who are not presently on
active duty orders into the duty-related path, including Plaintiffs
LaKia Beasley and Richard Henderson and the members of the Class
they represent. Instead, even when those Reservists satisfy the
eligibility criteria in Department of Defense Instruction 1332.18
for referral, the Navy and the Marine Corps will not refer them
into the duty-related path unless they already have a "Line of Duty
Benefits Letter."
The Plaintiffs and the putative Class seek declaratory and
injunctive relief to set aside the Navy's separation of all Class
members through the MRR process without considering their
eligibility for duty-related processing, to declare unlawful the
Navy's failure to refer eligible Service members into the DES'
duty-related path as required by law and binding DoD regulations,
and to order the Navy to properly process current and future Class
members through the DES.
Plaintiff Beasley is a veteran of the United States Navy who served
in the Active Component from May 2006 until November 2016 and in
the Reserves from November 2016 to May 2021. Plaintiff Henderson
enlisted in the Navy Reserve in 2005 and eventually reached the
rank of Builder Petty Officer First Class.[BN]
The Plaintiffs are represented by:
Andrew Soukup, Esq.
Ranganath Sudarshan, Esq.
Jeffrey Huberman, Esq.
Nora Eccles, Esq.
COVINGTON & BURLING LLP
850 10th Street NW
Washington, DC 20001-4956
Telephone: (202) 662-6000
E-mail: asoukup@cov.com
rsudarshan@cov.com
jhuberman@cov.com
neccles@cov.com
- and -
Esther Leibfarth, Esq.
Rochelle Bobroff, Esq.
David Sonenshine, Esq.
Renee Burbank, Esq.
NATIONAL VETERANS LEGAL SERVICES PROGRAM
1600 K Street, NW, Suite 500
Washington, DC 20006-2833
Telephone: (202) 265-8305
E-mail: esther@nvlsp.org
rochelle@nvlsp.org
david@nvlsp.org
renee.burbank@nvlsp.org
UNITED STATES: D.C. Court Certifies Class in Springs v. U.S. Navy
-----------------------------------------------------------------
In the case, KENNETH SPRINGS, et al., Plaintiff v. CARLOS DEL TORO,
et al., Defendant, Civil Action No. 20-3244 (RDM) (D.D.C.), Judge
Randolph D. Moss of the U.S. District Court for the District of
Columbia granted the Plaintiffs' motion for class certification and
for appointment of class counsel.
I. Background
The case concerns the disability ratings assigned to former members
of the U.S. Navy and Marine Corps who suffered from medical
conditions that rendered them unfit for continued military service.
These ratings impact, among other things, service members'
eligibility for benefits following their separation from the
military. The Plaintiffs, two former members of the U.S. Navy and
Marine Corps, allege that they were "assigned a combined disability
rating for these medical conditions that was lower than the
combined disability rating required by the relevant statutes and
regulations."
The Plaintiffs challenge the regulatory regime that implemented
these statutory mandates for the Department of Navy, SECNAVINST
1850.4E, which includes both the Navy and the Marine Corps. In June
27, 2019, however, the Secretary of the Navy, on behalf of the Navy
and the Marine Corps, issued new regulations for making disability
determinations; and -- although the new regime retains much of the
structure of the prior one -- the relief the Plaintiffs seek
applies only to the former scheme.
Under that scheme, the Secretary of the Navy assigned to the
Physical Evaluation Board ("PEB") "the responsibility to act on his
behalf to make determinations of fitness for continued naval
service, entitlement to benefits, disability ratings, and the
disposition of service members referred to it" from both the Navy
and the Marine Corps. AR 3234. The process itself was known as the
Disability Evaluation System ("DES"), and service members required
a referral into the DES from a medical provider after the "provider
recognized that a wound, illness, or injury would not improve to
the point of returning a service member to full duty."
The parties agree about one fact central to the litigation -- that,
at least until June 27, 2019, "the Navy did not separately rate
Category II conditions." Instead, according to the Defendants, "a
Category II rating was used as a placeholder that would allow the
PEB to later determine whether the Category II condition properly
should be reclassified as a Category I condition or a Category III
condition." As a result, during the relevant time period the "PEB
never issued a findings letter that contained a disability rating
attached to a Category II condition." The Secretary of the Navy
"ended the use of Categories" as part of this disability rating
system on June 27, 2019, with the issuance of new regulations.
The Plaintiffs filed the suit on Nov. 10, 2020, alleging that the
statutory and regulatory scheme "required" the PEB "to assign a
'disability rating, from 0% to 100%, to each Category I unfitting
condition and Category II contributing condition." The Defendants'
alleged failure to comply with this obligation, the Plaintiffs
maintain, meant that service members "were denied their legal right
to a disability rating for each of their Category II conditions,
which may have resulted in these service members receiving a lower
combined disability rating and fewer benefits than they were
entitled to under the applicable statutes and regulations."
Plaintiffs Kenneth Springs, a Navy veteran, and Nathaniel Reese, a
Marine Corps veteran, seek to represent a class of "similarly
situated veterans of the Navy and Marine Corps." Both named
Plaintiffs were allegedly disadvantaged in the DES by the PEB's
refusal to assign disability ratings to Category II conditions.
Both, according to the complaint, received 20% combined disability
ratings even though each had medical conditions that qualified as
Category II conditions. Pursuant to Navy policy, neither received a
rating for those Category II conditions, leaving them with a
disability rating of less than 30% and rendering them ineligible
for the fully panoply of retirement benefits.
The Plaintiffs allege both that the PEB's refusal to assign
disability ratings to Category II conditions violated the governing
statutory provision (Count One), and that the PEB's practice was
arbitrary and capricious in violation of the Administrative
Procedures Act, 5 U.S.C. Section 552, et seq., in light of relevant
regulations (Count Two).
As relief, the Plaintiffs seek both a declaration that the
Defendants' practice was unlawful and an injunction "requiring,"
among other things, the "Defendants to correct the military records
of the Plaintiffs and the members of the proposed class." They
further allege that they should be permitted to bring a class
action "on behalf of themselves and a class of similarly situated
individuals," to include "of all veterans of the United States Navy
and Marine Corps whom the Defendants retired or separated for
disability six years prior to the filing of this action, whose PEB
findings included at least one Category II condition."
The Defendants answered the complaint on Feb. 9, 2021, and on June
15, 2021, the Plaintiffs moved for class certification of the
following class pursuant to Federal Rule of Civil Procedure
23(b)(2):
(1) veterans of the United States Navy or Marine Corps who
were separated up to six years prior to the filing of this
complaint on Nov. 10, 2020 by the Secretary after being found unfit
for continued military service by the Physical Evaluation Board;
(2) who were found by the Physical Evaluation Board to have
at least one Category II unfitting condition whose rating the Navy
failed to include when calculating DoD combined disability ratings;
and accordingly,
(3) who were denied military benefits on account of the
Navy's failure to include the VA's assigned disability rating for
the veterans' Category II conditions when calculating the veterans'
DoD combined disability ratings.
In response, the Defendants "agreed with the Plaintiffs that the
Court can certify a class under Rule 23(b), but disagreed with the
Plaintiffs' proposed class definition." They proposed the following
definition, instead:
(1) veterans of the United States Navy or Marine Corps who
were separated by the Department of the Navy between Nov. 10, 2014
and June 27, 2019 after being found unfit for continued military
service by the Department of the Navy's Physical Evaluation Board;
and
(2) who were found by the Physical Evaluation Board to have
at least one Category II condition under SECNAVINST 1850.4E.
The Defendants' proposed alterations, they explained, addressed
three issues with Plaintiffs' class definition.
First, because the Plaintiffs had defined the proposed class to
include any service members who were separated from service during
the "six years prior to the filing of the complaint on Nov. 10,
2020," the proposed class "would include service members within the
statute of limitations but after the Navy discontinued the
category-based rating system at issue on June 27, 2019." Second,
the Defendants noted that the class definition referenced "Category
II unfitting conditions," when in practice all unfitting conditions
were assigned to Category I, meaning that the "Plaintiffs' proposed
class (service members with 'Category II unfitting conditions')
would have zero members." Third, the Defendants described the third
part of the Plaintiffs' class definition as "unnecessary,
inaccurate," and "potentially confusing," in part because the "Navy
sometimes reclassified Category II conditions as Category I
conditions."
The Defendants' proposed edits to the class definition addressed
these concerns by ending the class period on June 27, 2019,
eliminating the "unfitting" descriptor of Category II conditions,
and deleting the third part of the class definition.
Following the Defendants' response, the parties met and conferred
regarding their proposed alterations to the class definition. The
Plaintiffs have now agreed to the Defendants' revised class
definition and indicate that the parties further "agree that the
proposed class meets the requirements for class certification under
Fed. R. Civ. P. 23(a) and (b)(2) and that the action may be
appropriately litigated as a Rule 23(b)(2) class action."
II. Analysis
The Plaintiffs request both that the Court certifies a class and
that it appoints the Plaintiffs' counsel as the class counsel.
A. Class Certification
Although the parties "agree that the proposed class meets the
requirements for class certification under Fed. R. Civ. P. 23(a)
and (b)(2)," the Court nevertheless must satisfy itself, on behalf
of absent class members and after a "rigorous analysis," that those
requirements are satisfied.
Judge Moss concludes that the Plaintiffs have made the necessary
showings. He turns first to the four requirements imposed by Rule
23(a) -- numerosity, commonality, typicality, and adequacy—and
concludes that each is comfortably satisfied. As for numerosity, he
finds that the Plaintiffs are entitled to rely on estimates for
purposes of satisfying the numerosity requirement, and their
estimates well exceed any floor on the number of potential class
members needed to satisfy that requirement. As for commonality and
typicality, he holds that because the Defendants' practice exposed
all putative class members and the Plaintiffs to the same alleged
deprivation of their statutory and regulatory rights, the proposed
class satisfies Rule 23(a)'s requirements of commonality and
typicality. As for adequacy, the Plaintiffs will adequately
represent the interests of the proposed class, meaning Plaintiffs
have satisfied each of the 23(a) requirements.
Judge Moss also concludes that the Plaintiffs have satisfied Rule
23(b)(2)'s requirement. Rule 23(b)(2) imposes "two requirements:
(1) that defendant's actions or refusal to act are 'generally
applicable to the class' and (2) that plaintiffs seek final
injunctive relief or corresponding declaratory relief on behalf of
the class."
Judge Moss opines that neither of these requirements poses an
obstacle to class certification. Each of these individuals, whether
in the Navy or the Marine Corps, was subject to the same process
(the DES) pursuant to the same regulatory scheme
(SECNAVINST1850.4E). His determination of whether the PEB's
treatment of Category II conditions violated the relevant statutory
and regulatory provisions will, accordingly, affect the Plaintiffs
and all proposed class members in exactly the same way. As the
Defendants concede, the PEB addressed such conditions in the same
manner for every service member, and thus every class member was
similarly affected by that policy. Because the Defendants' conduct
is therefore "generally applicable to the class" and because any
relief issued by the Court will apply to the entire class, Judge
Moss concludes the Plaintiffs have satisfied Rule 23(b)(2)'s
requirements.
Consistent with the parties' agreement, that class will be defined
as follows:
(1) veterans of the United States Navy or Marine Corps who
were separated by the Department of the Navy between November 10,
2014 and June 27, 2019 after being found unfit for continued
military service by the Department of the Navy's Physical
Evaluation Board; and
(2) who were found by the Physical Evaluation Board to have at
least one Category II condition.
B. Appointment of Class Counsel
The Plaintiffs request that the Court appoints Dechert LLP and
National Veterans Legal Services Program ("NVLSP") as class
counsel.
The Defendants raise no objection to the appointment of Dechert LLP
and NVLSP as class counsel, and after considering the relevant
materials, Judge Moss finds that all four factors weigh in favor of
their appointment. Those materials demonstrate that attorneys from
Dechert LLP and NVLSP have "devoted substantial amounts of time and
resources to investigate the claims asserted" in the complaint, and
that, as a group, they "have extensive experience in all areas of
litigation, including pro bono litigation, class action litigation,
and complex commercial litigation."
As for "knowledge of the applicable law," the counsel from the
NVLSP is a senior staff attorney whose practice includes "assisting
active-duty service members and veterans in obtaining medical
military retirements through NVSLP's Lawyers Service Warriors
program." And, as for the necessary resources required to pursue
this litigation, the counsel from Dechert LLP represents that the
firm "has more than sufficient resources to litigate this matter to
completion," In light of this undisputed record and the counsel's
able representation of the Plaintiffs thus far, Judge Moss will
appoint Dechert LLP and NVLSP to represent the class.
III. Conclusion
For the foregoing reasons, Judge Moss granted the Plaintiffs'
motion for class certification and for appointment of class
counsel.
The class will include the following individuals:
(1) veterans of the United States Navy or Marine Corps who
were separated by the Department of the Navy between Nov. 10, 2014
and June 27, 2019 after being found unfit for continued military
service by the Department of the Navy's Physical Evaluation Board;
and
(2) who were found by the Physical Evaluation Board to have at
least one Category II condition.
Dechert LLP and NVSLP are appointed as the class counsel. By April
15, 2022, the parties will file a joint status report proposing a
schedule for further proceedings and indicating the parties'
positions with respect to whether the Court should "direct
appropriate notice to the class."
A full-text copy of the Court's March 11, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/yuphtwk5 from
Leagle.com.
UNIVERSITY OF ILLINOIS: Brown Files Class Certification Bid
-----------------------------------------------------------
In the class action lawsuit captioned as DERICK BROWN, ATIBA
FLEMONS, and JEFFREY TAYLOR On behalf of themselves and all others
similarly situated, v. THE BOARD OF TRUSTEES OF THE UNIVERSITY OF
ILLINOIS, Case No. 2:19-cv-02020-JBM-EIL (C.D. Ill.), the
Plaintiffs ask the Court to enter an order certifying a class of
proposed individuals:
"All individuals identifying as Black and/or African American
who are currently employed at UIUC, or who have been employed
by UIUC at any point since January 1, 2014, and who have not
held a supervisory position within System Human Resources,
Illinois Human Resources, campus unit offices for human
resources, or the Office of Access and Equity at any point
since January 1, 2014."
The Plaintiffs Derick Brown, Atiba Flemons, and Jeffrey Taylor,
three Black employees who currently work at Defendant's
Urbana-Champaign campus, move, on behalf of themselves and those
similarly situated, for class certification under Fed. R. Civ. P.
Rule 23(a) and 23(b)(2), and alternatively 23(c)(4) ("Rule 23"),
for the issue of liability under Title VII of the Civil Rights Act
of 1964, and the Illinois Civil Rights Act of 2003.
On February 19, 2019, Plaintiffs filed their Amended Complaint, in
this putative class action lawsuit.
The Plaintiffs seek declaratory and injunctive relief on their own
behalf and on behalf of all others similarly situated. The
Plaintiffs allege that Defendant has a pattern and practice of
discriminating against its Black employees, as more fully described
in the accompanying Memorandum of Law, perpetuating a hostile work
environment, and thus violating Title VII and ICRA.
The University of Illinois Urbana-Champaign is a public land-grant
research university in Illinois in the twin cities of Champaign and
Urbana. It is the flagship institution of the University of
Illinois system and was founded in 1867.
A copy of the Plaintiffs' motion to certify class dated March 4,
2022 is available from PacerMonitor.com at https://bit.ly/3CZJ9Wm
at no extra charge.[CC]
The Plaintiffs are represented by:
Shilpa Narayan, Esq.
Rebecca Houlding, Esq.
Joshua Friedman, Esq.
Jesse Centrella, Esq.
FRIEDMAN & HOULDING LLP
1050 Seven Oaks Lane
Mamaroneck, NY 10543
Telephone: (888) 369-1119
Facsimile: (866) 731-5553
E-mail: shilpa@friedmanhouldingllp.com
V. MARCHESE & CO: Gomez-Velazquez Files Class Certification Bid
---------------------------------------------------------------
In the class action lawsuit captioned as Alfredo Gomez-Velazquez On
behalf of Himself and all others similarly situated, v. V. Marchese
& Co. Cut Fresh, LLC, Case No. 20CV1802 (E.D. Wisc.), the Plaintiff
asks the Court to enter an order certifying him as the
representative, and the Previant Law Firm S.C. as class counsel,
for the following opt-out class:
"All hourly employees employed by Defendant Cut Fresh, LLC who
during the time period between November 6, 2018 and the present
either (a) worked as a production or maintenance employee for Cut
Fresh; or (b) punched in after a meal break less than 30 minutes
after punching out for the break."
A copy of the Plaintiff's motion to certify class dated March 4,
2022 is available from PacerMonitor.com at https://bit.ly/3iDkNZb
at no extra charge.[CC]
The Plaintiff is represented by:
Yingtao Ho, Esq.
THE PREVIANT LAW FIRM, S.C.
W. Wisconsin Avenue, Suite 100MW
Milwaukee, WI 53203
Telephone: (414) 271-4500
Facsimile: (414) 271-6308
E-mail: yh@previant.com
VALLON PHARMA: Rendon Sues Over Blind Inaccessible Website
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Vallon Pharmaceuticals, 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
was filed against the company alleging that its website is not
compatible with software used by vision-impaired individuals.
In November 2021, the company was named as a defendant in a
putative class action lawsuit filed in the California Superior
Court, County of Los Angeles, styled "Rendon v. Vallon, Inc., et
al. " The complaint brought one claim for violation of California's
Unruh Civil Rights Act (Unruh Act), alleging that the company's
website is not compatible with software used by vision-impaired
individuals. The company settled the lawsuit for an immaterial
amount.
Vallon Pharmaceuticals, Inc. is a clinical-stage biopharmaceutical
company based in Pennsylvania.
VERTAFORE INC: 5th Cir. Affirms Dismissal of Allen Class Suit
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In the case, Derek Allen; Leandre Bishop; John Burns,
Plaintiffs-Appellants v. Vertafore, Incorporated,
Defendant-Appellee, Case No. 21-20404 (5th Cir.), the U.S. Court of
Appeals for the Fifth Circuit affirmed the district court's order
granting Vertafore's motion to dismiss.
I. Background
The Plaintiffs, Texas driver's license holders, brought the action
against Vertafore for a violation of the Driver's Privacy
Protection Act, 18 U.S.C. Section 2721, et seq., after Vertafore
announced that unauthorized users had gained access to personal
information protected by the statute that Vertafore had stored on
unsecured external servers.
On Nov. 10, 2020, Vertafore, an insurance software company,
announced that three data files that it had "stored in an unsecured
external storage service" had been accessed without authorization
sometime between March and August 2020. Those files contained the
driver information of approximately 27.7 million people holding
Texas driver's licenses issued before February 2019. As of November
2020, Vertafore's investigation had not turned up any evidence that
the information accessed without authorization had been misused.
On Dec. 4, 2020, the Plaintiffs filed a putative class action
complaint against Vertafore for a violation of the Driver's Privacy
Protection Act. They alleged that "Vertafore knowingly disclosed
the Driver's License Information of the Plaintiffs and
approximately 27.7 million other Class members by storing that
information on unsecured external servers." On Jan. 29, 2021,
Vertafore filed a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(1), arguing that the Plaintiffs lacked standing,
and under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim upon which relief can be granted.
The magistrate judge held a hearing on the motion on April 27, 2021
and subsequently recommended that the district court find that the
Plaintiffs had standing but that they failed to state a claim. The
magistrate judge noted that "absent from the Plaintiffs' complaint
is any factual allegation describing how Vertafore's purported
mismanagement of information amounts to a knowing disclosure of
personal information for an improper purpose." Therefore, he
concluded that the "Plaintiffs' allegation that Vertafore knowingly
disclosed their personal information for an improper purpose is
nothing more than a conclusory allegation or legal conclusion
masquerading as a factual conclusion."
The Plaintiffs objected to the magistrate judge's Memorandum and
Recommendation and asked for an opportunity to amend their
complaint if the district judge was not inclined to deny
Vertafore's motion. On July 23, 2021, the district court adopted
the magistrate judge's Memorandum and Recommendation in its
entirety and granted Vertafore's motion to dismiss. The Plaintiffs
timely filed the appeal.
II. Discussion
The Driver's Privacy Protection Act (DPPA) "regulates the
disclosure of personal information contained in the records of
state motor vehicle departments." The DPPA makes it "unlawful for
any person knowingly to obtain or disclose personal information,
from a motor vehicle record, for any use not permitted under
section 2721(b) of this title." "A person who knowingly obtains,
discloses or uses personal information, from a motor vehicle
record, for a purpose not permitted under the DPPA will be liable
to the individual to whom the information pertains, who may bring a
civil action in a United States district court."
"The court may award actual damages, but not less than liquidated
damages in the amount of $2,500." To state a claim for a violation
of the DPPA, the complaint must adequately allege that "(1) the
defendant knowingly obtained, disclosed or used personal
information; (2) from a motor vehicle record; and (3) for a purpose
not permitted."
The Plaintiffs' complaint alleges that Vertafore knowingly
disclosed their personal information "by storing that information
on unsecured external servers." The complaint further states that
"the unsecure servers disclosed" the Plaintiffs' personal
information "in response to the commands of unauthorized
individuals and consistent with the manner in which they were
programmed and configured by Vertafore."
In their motion to dismiss and before the Court, Vertafore has
argued that the Plaintiffs failed to allege both that the company
acted with an impermissible purpose and that the company made a
knowing disclosure.
Because it concludes that the Plaintiffs have not alleged a
"disclosure" within the meaning of the DPPA, the Fifth Circuit need
not reach whether the Plaintiffs sufficiently alleged that
Vertafore acted knowingly and with an impermissible purpose.
It turns, then, to whether any of the allegations in the
Plaintiffs' complaint amount to a disclosure, as that word is used
in the DPPA. When interpreting statutes, the Fifth Circuit begins
with the text's plain meaning, "ascertained by reference to 'the
particular statutory language at issue, as well as the language and
design of the statute as a whole.'"
The Plaintiffs argue in their briefs to the Court that Vertafore's
disclosure was the act of "placing the information onto a server
that was readily accessible to the public," but this assertion is
nowhere in the Plaintiffs' complaint, nor is it supported by the
facts alleged in the Plaintiffs' complaint.
Instead, the only facts alleged in the Plaintiffs' complaint are
that Vertafore stored personal information on "unsecured external
servers" and that unauthorized users accessed that information.
Without more, these facts do not plausibly state a "disclosure"
consistent with the plain meaning of that word. Nothing about the
words "unsecured" or "external" implies exposure to public view,
and the mere fact that unauthorized users managed to access the
information does not imply that Vertafore granted or facilitated
that access. After all, the Fifth Circuit would hardly say that
personal information was "disclosed" if it was kept in hard copy
and the papers were stolen out of an unlocked, but private, storage
facility.
Though at this stage of the proceedings, the Fifth Circuit draws
all reasonable inferences in the Plaintiffs' favor, the inference
Plaintiffs ask it to draw -- from "stored on unsecured external
servers" to "disclosed" -- is not reasonable. Because the
Plaintiffs have not alleged a disclosure within the meaning of the
DPPA, their complaint fails to tate a plausible claim for relief.
III. Disposition
For the foregoing reasons, the judgment of the district court is
affirmed.
A full-text copy of the Court's March 11, 2022 Order is available
at https://tinyurl.com/4hn2uufw from Leagle.com.
VIACOMCBS INC: Agreement Reached in Consolidated Class Action
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ViacomCBS 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 parties in a
consolidated class action lawsuit in the United States District
Court for the Northern District of Illinois have reached an
agreement to settle their dispute with the court's approval.
The lawsuit was filed by parties that claim to have purchased
broadcast television spot advertising beginning on or about January
1, 2014 on television stations owned by one or more of the
defendant television station owners and alleges the sharing of
allegedly competitively sensitive information among such television
stations in alleged violation of the Sherman Antitrust Act. The
action, which names the company among fourteen total defendants,
seeks monetary damages, attorneys' fees, costs and interest as well
as injunctions against the allegedly unlawful conduct. On October
8, 2019, the company and other defendants filed a motion to dismiss
the matter, which was denied by the court on November 6, 2020.
The company has reached an agreement in principle with the
plaintiffs to settle the lawsuit.
ViacomCBS Inc. is a global media and entertainment company that
creates premium content and experiences for audiences worldwide,
offering broadcast and cable television programming, innovative
streaming services and digital video products, provide powerful
capabilities in production, distribution and advertising solutions
with one of the industry's most extensive libraries of television
and film titles with a portfolio of iconic consumer brands includes
Paramount+, Pluto TV, CBS, Showtime Networks, Paramount Pictures,
Nickelodeon, MTV, Comedy Central and BET.
VIACOMCBS INC: Agrees to Settle New York Class Action
-----------------------------------------------------
ViacomCBS 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 parties in a
consolidated class action lawsuit in the United States District
Court for the Southern District of New York have reached an
agreement to settle their dispute with the court's approval.
On August 27, 2018 and on October 1, 2018, Gene Samit and John
Lantz, respectively, filed for claims seeking to recover damages
caused by purported violations of the federal securities laws,
including by allegedly making materially false and misleading
statements or failing to disclose material information, and seeks
costs and expenses as well as remedies under Sections 10(b) and
20(a) of the Securities Exchange Act of 1934.
On November 6, 2018, the Court entered an order consolidating the
two actions. On November 30, 2018, the Court appointed Construction
Laborers Pension Trust for Southern California as the lead
plaintiff of the consolidated action. On February 11, 2019, the
lead plaintiff filed a consolidated amended putative class action
complaint against CBS, certain current and former senior executives
and members of the CBS Board of Directors. The consolidated action
is stated to be on behalf of purchasers of CBS Class A Common Stock
and Class B Common Stock between September 26, 2016 and December 4,
2018. On April 12, 2019, the defendants filed motions to dismiss
this action, which the Court granted in part and denied in part on
January 15, 2020. With the exception of one statement made by Mr.
Moonves at an industry event in November 2017, in which he
allegedly was acting as the agent of CBS, all claims as to all
other allegedly false and misleading statements were dismissed.
The company reached an agreement in principle with the plaintiffs
to settle the lawsuit. The settlement, which will include no
admission of liability or wrongdoing by the company, will be
subject to court approval. All amounts payable by the company under
the settlement will be paid by its insurers.
ViacomCBS Inc. is a global media and entertainment company that
creates premium content and experiences for audiences worldwide,
offering broadcast and cable television programming, innovative
streaming services and digital video products, provide powerful
capabilities in production, distribution and advertising solutions
with one of the industry's most extensive libraries of television
and film titles with a portfolio of iconic consumer brands includes
Paramount+, Pluto TV, CBS, Showtime Networks, Paramount Pictures,
Nickelodeon, MTV, Comedy Central and BET.
VIACOMCBS INC: Court Narrows Claims in Securities Suit
------------------------------------------------------
ViacomCBS 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 January 27, 2021,
the Court of Chancery of the State of Delaware dismissed one
disclosure claim, while allowing all other claims against the
defendants to proceed. Discovery on the surviving claims is
proceeding.
Beginning on February 20, 2020, three purported CBS stockholders
filed separate derivative and/or putative class action lawsuits in
the Court of Chancery of the State of Delaware. On March 31, 2020,
said court consolidated the three lawsuits and appointed Bucks
County Employees' Retirement Fund and International Union of
Operating Engineers of Eastern Pennsylvania and Delaware as co-lead
plaintiffs for the consolidated action. On April 14, 2020, the lead
plaintiffs filed a Verified Consolidated Class Action and
Derivative Complaint against Shari E. Redstone, NAI, Sumner M.
Redstone National Amusements Trust, members of the CBS Board of
Directors (comprised of Candace K. Beinecke, Barbara M. Byrne, Gary
L. Countryman, Brian Goldner, Linda M. Griego, Robert N. Klieger,
Martha L. Minow, Susan Schuman, Frederick O. Terrell and Strauss
Zelnick), former CBS President and Acting Chief Executive Officer
Joseph Ianniello and the company as nominal defendant. The
complaint alleged breaches of fiduciary duties to CBS stockholders
in connection with the negotiation and approval of the Agreement
and Plan of Merger dated as of August 13, 2019, as amended on
October 16, 2019. The complaint also alleges waste and unjust
enrichment in connection with Mr. Ianniello's compensation. The
complaint seeks unspecified damages, costs and expenses, as well as
other relief.
On June 5, 2020, the defendants filed motions to dismiss and on
January 27, 2021, the court dismissed one disclosure claim, while
allowing all other claims against the defendants to proceed.
Discovery on the surviving claims is proceeding.
ViacomCBS Inc. is a global media and entertainment company that
creates premium content and experiences for audiences worldwide,
offering broadcast and cable television programming, innovative
streaming services and digital video products, provide powerful
capabilities in production, distribution and advertising solutions
with one of the industry's most extensive libraries of television
and film titles with a portfolio of iconic consumer brands includes
Paramount+, Pluto TV, CBS, Showtime Networks, Paramount Pictures,
Nickelodeon, MTV, Comedy Central and BET.
VIACOMCBS INC: Faces Shareholder Suits in Del. Ch.
--------------------------------------------------
ViacomCBS 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 it is facing four
separate putative class action lawsuits in the Court of Chancery of
the State of Delaware filed by purported Viacom stockholders.
On January 23, 2020, the Court consolidated the four lawsuits. On
February 6, 2020, the Court appointed California Public Employees.
Retirement System as lead plaintiff for the consolidated action,
together with Park Employees' and Retirement Board Employees'
Annuity and Benefit Fund of Chicago and Louis M. Wilen, filed a
First Amended Verified Class Action Complaint against NAI, NAI
Entertainment Holdings LLC, Shari E. Redstone, the members of the
special transaction committee of the Viacom Board of Directors
(comprised of Thomas J. May, Judith A. McHale, Ronald L. Nelson and
Nicole Seligman) and its President and Chief Executive Officer and
director, Robert M. Bakish. The complaint alleges breaches of
fiduciary duties to Viacom stockholders in connection with the
negotiation and approval of the merger of CBS and Viacom. The
complaint seeks unspecified damages, costs and expenses, as well as
other relief.
On May 22, 2020, the defendants filed motions to dismiss. On
December 29, 2020, the Court dismissed the claims against Mr.
Bakish, while allowing the claims against the remaining defendants
to proceed. Discovery on the surviving claims is proceeding.
ViacomCBS Inc. is a global media and entertainment company that
creates premium content and experiences for audiences worldwide,
offering broadcast and cable television programming, innovative
streaming services and digital video products, provide powerful
capabilities in production, distribution and advertising solutions
with one of the industry's most extensive libraries of television
and film titles with a portfolio of iconic consumer brands includes
Paramount+, Pluto TV, CBS, Showtime Networks, Paramount Pictures,
Nickelodeon, MTV, Comedy Central and BET.
VIACOMCBS INC: Seeks Dismissal of New York Securities Suit
----------------------------------------------------------
ViacomCBS 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 December 22,
2021, the plaintiffs in a putative securities class action lawsuit
in New York Supreme Court, County of New York filed a stipulation
seeking the voluntary dismissal without prejudice of a director of
the company from the lawsuit, which the Court subsequently ordered.
The defendants filed motions to dismiss the lawsuit, which are
pending.
On August 13, 2021, Camelot Event Driven Fund filed a putative
securities class action lawsuit in said court and on November 5,
2021, an amended complaint. The complaint is purportedly on behalf
of investors who purchased shares of the company's Class B Common
Stock and 5.75% Series A Mandatory Convertible Preferred Stock
pursuant to public securities offerings completed in March 2021.
The complaint asserts violations of federal securities law and
alleges that the offering documents contained material
misstatements and omissions, including through an alleged failure
to adequately disclose certain total return swap transactions
involving Archegos Capital Management referenced to our securities
and related alleged risks to the company's stock price. On December
22, 2021, the plaintiffs filed a stipulation seeking the voluntary
dismissal without prejudice of the outside director defendants from
the lawsuit, which the Court subsequently ordered. On the same
date, the defendants filed motions to dismiss the lawsuit, which
are pending.
ViacomCBS Inc. is a global media and entertainment company that
creates premium content and experiences for audiences worldwide,
offering broadcast and cable television programming, innovative
streaming services and digital video products, provide powerful
capabilities in production, distribution and advertising solutions
with one of the industry's most extensive libraries of television
and film titles with a portfolio of iconic consumer brands includes
Paramount+, Pluto TV, CBS, Showtime Networks, Paramount Pictures,
Nickelodeon, MTV, Comedy Central and BET.
VIEW INC: Sonthalia Petitions for Writ of Mandamus in Mehedi Suit
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Plaintiff SWETA SONTHALIA filed a petition for writ of mandamus
from a court ruling entered in the lawsuit entitled ASIF MEHEDI,
Plaintiff v. VIEW, INC., et al., Defendants, Case No.
21-cv-06374-BLF, in the United States District Court for the
Northern District of California.
Plaintiff Asif Mehedi brought his lawsuit against View and its CEO
Rao Mulpuri and CFO Vidul Prakash. Mr. Mehedi brought claims on
behalf of a putative class of investors who bought View securities
between Nov. 30, 2020 and Aug. 16, 2021 and allegedly suffered
losses based on View's making materially false or misleading
statements and failing to disclose material adverse facts about the
company's business, including warranty costs and internal controls.
View's alleged fraud led to a fall in its stock price following an
announcement after the market closed on August 16, 2021 that it was
beginning an independent investigation concerning the adequacy of
the company's previously disclosed warranty accrual.
Ms. Sonthalia sought appointment as Lead Plaintiff in this
securities fraud class action, carefully making every required
showing -- including that she had the largest financial interest in
the litigation's outcome. Despite Sonthalia meeting the statutory
presumption of most adequate plaintiff, the District Court
appointed another movant by using a loss calculation that rendered
movants' actual purchase prices irrelevant.
According to Ms. Sonthalia, the District Court partially followed
the Private Securities Litigation Reform Act of 1995 and Supreme
Court precedent. When assessing financial interest to appoint a
lead plaintiff, it excluded Stadium Capital, LLC's sales from
before the only alleged corrective disclosure, because of causation
issues. Specifically, because those sales occurred before the
market learned the truth, the sale-price arguably still included a
fraud premium and therefore Stadium's gains or losses are likely
not proximately caused by the fraud. However, the District Court
clearly erred by adopting a unique and largely unprecedented
methodology for calculating "financial interest" which replaced
movants' actual purchase prices with an artificial "purchase
price."
Specifically, the District Court ignored the price Stadium and
Sonthalia purchased View stock for and replaced it with the market
price just before the Corrective Disclosure. In doing so, the
District Court's Orders on February 8, 2022 and February 23, 2022
rejected the only guidance the PSLRA provides for calculating
damages.
The Plaintiff now petitions this Court, pursuant to the All Writs
Act, 28 U.S.C. Section 1651, for a writ of mandamus: (1) vacating
the Orders; (2) directing the District Court to appoint Sonthalia
as Lead Plaintiff; and (3) clarifying the contradictory caselaw
among this circuit's district courts regarding the relevancy of
purchase price when calculating financial interest pursuant to the
Private Securities Litigation Reform Act of 1995.
The question presented is: Did the District Court, in direct
contravention of the PSLRA and Supreme Court precedent, clearly err
in holding that Sonthalia did not have the "largest financial
interest" based on a loss calculation that renders actual purchase
price irrelevant?
The appellate case is captioned as IN RE SWETA SONTHALIA,
Petitioner v. UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA, Respondent, Case No. 22-70044, in the
United States Court of Appeals for the Ninth Circuit, filed on
March 14, 2022.[BN]
Plaintiff-Petitioner SWETA SONTHALIA is represented by:
Ivy T. Ngo, Esq.
Constantine P. Economides, Esq.
Velvel (Devin) Freedman, Esq.
ROCHE FREEDMAN LLP
1 SE 3rd Avenue, Suite 1240
Miami, FL 33131
Telephone: (305) 971-5943
E-mail: ingo@rochefreedman.com
ceconomides@rochefreedman.com
vel@rochefreedman.com
- and -
David J. Schwartz, Esq.
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
W.G./WELCH MECHANICAL: Faces Aluira Suit Over Workers' Unpaid Wages
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JOSE L. ALUIRA, RICARDO CALDERON, MANUEL CARLLO, WILLIAM CHAVEZ,
LESLY CRUZ, GILBERTO DIAZ, MANUEL DEJESUS ESCALANTE GONZALEZ,
ABRIEL HERNANDEZ, JOSE HERNANDEZ, DENIS LARIOS, OSMAN LOPES, DANNY
ALEXANDER MARADIAGA HERNANDEZ, ADOLFO MALDONADO, CARLOS MARTINEZ,
EVER MAYORGA, EDWIN MAYORGA, ELIAZAR MEDRANO, ESWIN ORANTES,
ARNALDO RAMOS, SILVIA RIOS, MELQUIN VALDEZ, HUGO A. VARGAS MONTOYA,
on behalf of themselves and others similarly-situated, Plaintiffs
v. W.G./WELCH MECHANICAL CONTRACTORS, L.L.C. Defendants, Case No.
1:22-cv-00274 (E.D. Va., March 14, 2022) is a class action brought
by the Plaintiffs arising from the Defendant's failure to pay
minimum and overtime wages in violation of the Fair Labor Standards
Act and the District of Columbia's Minimum Wage Revision Act.
The Plaintiffs, who are Spanish-speaking workers with little or no
fluency in either spoken or written English, are former or current
non-exempt employees of Defendant who earned, but did not receive,
compensation for time worked, together with time and one-half pay
for time spent over 40 hours per week from Defendant. They were
employed between February 17, 2022, and March 7, 2022 to perform
plumbing and other construction labor on a construction project
known as the "City Ridge Project" located in Washington, DC.
W.G./Welch Mechanical Contractors, L.L.C. is a mechanical
contractor with principal place of business in Frederick,
Maryland.[BN]
The Plaintiffs are represented by:
Thomas F. Hennessy, Esq.
THE HENNESSY LAW FIRM, PLLC
4015 Chain Bridge Road, Suite G
Fairfax, VA 22030
Telephone: (703) 865-8836
Facsimile: (703) 865-7633
E-mail: thennessy@virginiawage.net
WAL-MART ASSOCIATES: Parties in Nelson Seek to Stay Class Briefing
------------------------------------------------------------------
In the class action lawsuit captioned as CHRISTOPHER NELSON, on
behalf of himself and all others similarly situated, v. WAL-MART
ASSOCIATES, INC., and DOES 1 through 50, inclusive, Case No.
3:21-cv-00066-MMD-CLB (D. Nev.), the Parties ask the Court to enter
an order granting a stay on the briefing of Plaintiff's Motion for
Conditional and Collective Class Action Certification for a period
of 120 days.
The current deadline for filing Defendant's Opposition to
Plaintiff's Rule 216(b) Motion is March 4, 2022 with a Reply
deadline on April 8, 2022. Accordingly, the parties are seeking a
120-day stay up to and including Tuesday, July 5, 2022. After the
expiration of this proposed stay, the parties agree to submit an
updated briefing schedule regarding these deadlines for the Court's
review and consideration no later than Thursday, August 4, 2022.
Walmart is an American multinational retail corporation that
operates a chain of hypermarkets, discount department stores, and
grocery stores from the United States, headquartered in
Bentonville, Arkansas.
A copy of the Parties' motion dated March 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3L1h9nI at no extra charge.[CC]
The Plaintiff is represented by:
Mark R. Thierman, Esq.
Joshua D. Buck, Esq.
Leah L. Jones, Esq.
Joshua R. Hendrickson, Esq.
THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
The Defendants are represented by:
Anthony L. Martin, Esq.
Dana B. Salmonson, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
10801 W. Charleston Blvd., Suite 500
Las Vegas, NV 89135
Telephone: (702) 369-6800
Facsimile: (702) 369-6888
E-mail: anthony.martin@ogletreedeakins.com
dana.salmonson@ogletreedeakins.com
WALMART INC: Court Denies Bid to Dismiss Fortney Wage & Hour Suit
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In the case, DAVID FORTNEY, et al., Plaintiffs v. WALMART, INC.,
Defendant, Case No. 2:19-cv-4209 (S.D. Ohio), Judge Sarah D.
Morrison of the U.S. District Court for the Southern District of
Ohio, Eastern Division, denied the Defendant's Motion to Dismiss
Claims of Out-of-State Opt-Ins and denied as moot the Plaintiffs'
Motion to Transfer Venue.
I. Background
The lawsuit was filed as a collective action under the Fair Labor
Standards Act ("FLSA") and as a Rule 23 class action under Ohio's
wage and hour laws. Named Plaintiffs David Fortney and Eli Triplett
are both former hourly-paid, non-exempt employees of Walmart.
Walmart, an Arkansas-based and Delaware-incorporated company, owns
and operates more than 3,000 retail store locations in the United
States, many of which offer automotive maintenance and mechanic
services. For at least a portion of their employment, Plaintiffs
worked as automotive technicians at the Walmart store in Cambridge,
Ohio.
The Plaintiffs allege that "Walmart has a policy of requiring work
(responding to work related text messages, Facebook messages, phone
calls, and other communications) while its employees are on unpaid
meal breaks." According to them, an employee on their meal break is
required to respond to work-related inquiries, but is not paid any
wages for the work done during a meal break -- including overtime
wages, to the extent the meal-time work causes the employee to work
more than 40 hours.
The Plaintiffs filed their Complaint on Sept. 21, 2019. Six weeks
later (before Walmart responded to the Complaint), Messrs. Fortney
and Triplett were joined by four additional opt-in plaintiffs.
Although the four opt-ins did not identify the Walmart location
where they worked, two provided mailing addresses in Georgia and
another, Chad Palmer, provided a Michigan address. On Nov. 18,
2019, Walmart filed its Answer and Affirmative Defenses. Therein,
Walmart admitted that the Court has jurisdiction over the action
and that it is the proper venue.
Between Nov. 18, 2019, and Jan. 20, 2020, seven more opt-in
plaintiffs with non-Ohio mailing addresses consented to join the
action. On Feb. 12, 2020, the parties filed their First Rule 26(f)
Report, indicating that there were no contested issues related to
venue or jurisdiction. The parties filed a Revised Rule 26(f)
Report later that month, making the same representation.
Accordingly, the Court put on a Scheduling Order stating: "There
are no contested issues related to venue or jurisdiction at this
time."
On March 13, 2020, the Plaintiffs moved to conditionally certify
the case as a collective action under Section 216(b) of the FLSA.
In accordance with the Court's Scheduling Order, Walmart engaged in
limited discovery before responding to the Plaintiffs' motion. That
included taking the depositions of Messrs. Fortney and Triplett,
who worked for Walmart in Ohio, and Mr. Palmer, who worked for
Walmart in Michigan.
In October 2020 -- 11 months after filing its Answer and
Affirmative Defenses, seven months after the Plaintiffs moved for
conditional certification, and four months after an eighth
out-of-state opt-in joined the cas -- Walmart sought leave to file
an amended answer. In its First Amended Answer and Affirmative
Defenses, filed Dec. 8, 2020, Walmart again admitted that "the
Court has jurisdiction and venue over the action." But, for the
first time, it also asserted, as its Twenty-Sixth Affirmative
Defense.
On Jan. 22, 2021, the Court conditionally certified the Plaintiffs'
proposed FLSA collective class, defined as follows: All individuals
employed at Walmart Tire & Auto locations in positions, job titles,
job codes, job classifications of Automotive Technician and all
other similar nomenclature (including, but not limited to, Tire &
Lube Specialists and other positions in Walmart Tire & Auto
Locations) performing substantially identical functions and/or
duties, currently or formerly employed by Defendant Walmart, Inc.
and/or its predecessors or successors in interest in the United
States between 3 years prior to the filing of this suit and the
date of final judgment in this matter. This includes all Walmart
Tire & Auto employees who are subject to Defendant Walmart's meal
break policy."
On Feb. 26, 2021, the parties jointly moved for approval of a
notice to the class and a notice plan. Therein, Walmart represented
that it had "prepared a list of individuals who potentially fit the
definition of the conditionally certified collective class together
with their last known addresses." Court granted the joint motion
the following week.
Three months later, the parties filed a Joint Motion to Modify
Collective Class Definition and to Approve Revised Notice. The
Court granted the motion and ordered that notices and consent forms
be sent to the following revised FLSA collective class: "All
individuals employed at Walmart Tire & Auto locations in positions,
job titles, job codes, job classifications of Automotive Technician
and all other similar nomenclature including but not limited to,
Tire & Auto Specialist and other positions in Walmart Tire & Auto
locations) performing substantially identical functions and/or
duties, currently or formerly employed by Defendant Walmart, Inc.
and/or its predecessors or successors in interest in the United
States between 3 years prior to the filing of this suit and the
date of final judgment in this matter who were employed full time
in such positions. This includes all full-time Walmart Tire & Auto
employees who are subject to Defendant Walmart's meal break
policy."
Roughly 2,800 potential class members have since filed notice of
their consent to join in the action. According to Walmart, 2,696 of
them are "out-of-state opt-ins."
While notices were being distributed and consent forms were being
filed, the parties also filed two joint status reports. Their
first, filed Aug. 13, 2021, addressed various discovery issues and
proposed case management deadlines. Walmart indicated its intent to
move for decertification of the collective class, but there was no
suggestion of a motion to dismiss based on personal jurisdiction.
It was not until the second joint status report was filed on Nov.
15, 2021, that Walmart stated its intent to make such a motion. The
Motion was filed on Dec. 15, 2021.
II. Discussion
Walmart moves for dismissal of the out-of-state opt-ins' claims for
lack of personal jurisdiction. The Sixth Circuit's recent decision
in Canaday v. Anthem Cos., Inc. made clear that this Court lacks
specific personal jurisdiction over a non-Ohio defendant facing
claims of non-Ohio FLSA collective action members. The parties do
not dispute that Walmart is a non-Ohio defendant, nor do they
dispute that the out-of-state opt-ins are non-Ohio FLSA collective
action members. Rather, the dispute is whether Walmart timely moved
to dismiss their claims.
Judge Morrison opines that the procedural history of the case makes
clear: Walmart has waived its right to assert a personal
jurisdiction defense.
Walmart waited more that a year after the Court allowed its Amended
Answer -- and more than two years after first being put on notice
of the prospect of out-of-state opt-ins -- to file a motion to
dismiss based on lack of personal jurisdiction. In the year between
those two filings, the parties and the Court committed substantial
resources to the litigation of the case. Walmart entered a general
appearance and, jointly with the Plaintiffs, asked the Court to
approve a notice and notice plan. Walmart again joined the
Plaintiffs in seeking to modify the collective class definition and
distribute a revised notice. In connection with that effort,
Walmart provided the Plaintiffs a list of 51,000 individuals
potentially falling within the modified collective class, coming
from all over the country. With Walmart's knowledge, the Plaintiffs
then devoted a substantial amount of time and expense in sending
notices and consent forms to those 51,000 people. These actions
gave the Plaintiffs and the Court the reasonable impression that
Walmart would defend the case on the merits. Accordingly, Walmart
has waived its personal jurisdiction defense.
Walmart's arguments in response are unsuccessful. First, Walmart
argues that the Court's Order granting it leave to file the Amended
Answer forecloses the question. In that Order, the Court recognized
that the personal jurisdiction defense was raised as to
"individuals who were not yet plaintiffs in the case," because the
Court had not yet ruled on whether the out-of-state opt-ins could
proceed on their claims. But the Court ruled on Jan. 22, 2021, that
the out-of-state opt-ins could proceed as part of the collective
action. Even still, Walmart waited eleven months before filings its
Motion to Dismiss. All the while, it actively participated in the
litigation of the out-of-state opt ins' claims by filing joint
motions addressing the collective class definition and providing
Plaintiffs with a list of 51,000 potential collective class members
-- knowing that the Court and the Plaintiffs, respectively, would
expend resources to further the case in response.
Walmart next argues that it acted promptly after the Canaday
decision was handed down. The date of Canaday's publication is of
no consequence. The law on which the Canaday decision is based,
Bristol Myers Squibb, 137 S.Ct. 1773 (2017), was decided two years
before this action commenced. Further, even before Canaday was
decided, the Court and others came to the same conclusion. The
Sixth Circuit's Canaday decision certainly settles any doubt as to
the Court's specific personal jurisdiction over non-resident
defendants in FLSA collective actions. However, the challenge was
fully available to Walmart even before the Sixth Circuit spoke.
III. Conclusion
For the reasons she set forth, Judge Morrison denied Walmart's
Motion to Dismiss. Accordingly, the Plaintiffs' Motion to Transfer
Venue is denied as moot.
A full-text copy of the Court's March 11, 2022 Opinion & Order is
available at https://tinyurl.com/2ycvnrvj from Leagle.com.
Y.S. HAPPY: Kim Sues Over Unpaid Minimum and Overtime Wages
-----------------------------------------------------------
David Kim, Seunghoon Han, Jinsung Lee, Sungsoo Lee, and James Choi
on behalf of themselves and all others similarly situated,
Plaintiffs v. Y.S. Happy Corp, Young Chung Chun, Phil Sook Cho, and
Yang Hwan Cho, Defendants, Case No. 1:22-cv-01368 (E.D.N.Y., March
11, 2022) is a class action seeking to recover unpaid minimum wage,
overtime wages, and other damages pursuant to the Fair Labor
Standards Act and New York Labor Law.
The Plaintiffs were employed as servers by the Defendants. They
seek injunctive and declaratory relief against Defendants' unlawful
actions and unpaid overtime wages. They also seek liquidated
damages, compensatory damages, interest, and attorneys' fees and
costs pursuant to the FLSA and the NYLL.
Y.S. Happy Corp. owns and operates Happy Karaoke at 160-30 Northern
Blvd. in Flushing, New York.[BN]
The Plaintiffs are represented by:
Ryan J. 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
ZARBEE'S INC: Faces Cottrill False Ad Suit Over Gripe Water Product
-------------------------------------------------------------------
ARIEL COTTRILL, individually and on behalf of all others similarly
situated, Plaintiff v. ZARBEE'S, INC., Defendant, Case No.
4:22-cv-01599-SK (N.D. Cal., March 14, 2022) seeks to remedy the
deceptive and misleading business practices of Defendant with
respect to the marketing and sales of Zarbee's Gripe Water in
violation of the California's Consumers Legal Remedies Act, False
Advertising Law, and Unfair Competition Law.
According to the complaint, the Defendant manufactured, sold, and
distributed the product using a marketing and advertising campaign
that is centered around claims that it "helps ease occasional gas &
stomach discomfort," associated with colic and hiccups. The
Defendant communicates the same substantive message throughout its
advertising and marketing of the product, including at point of
sale and on the front of the product packaging. Each consumer who
has purchased the product has been exposed to Defendant's
misleading advertising, says the suit.
As a direct and proximate result of Defendant's alleged false and
misleading advertising claims and marketing practices, Defendant
has caused Plaintiff and the members of the Class to purchase a
product which does not, and cannot, perform as represented, says
the suit. The Plaintiff and other similarly situated consumers have
been harmed in the amount they paid for the product, it adds.
Zarbee's, Inc. produces pharmaceutical products. The Company offers
vitamins, supplements, immune support, throat relief, and other
related products.[BN]
The Plaintiff is represented by:
L. Timothy Fisher, Esq.
BURSOR & FISHER, P.A.
1990 N. California Blvd., Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Facsimile: (925) 407-2700
E-mail: ltfisher@bursor.com
- and -
Sarah N. Westcot, Esq.
Stephen A. Beck, Esq.
BURSOR & FISHER, P.A.
Brickell Ave., Suite 1420
Miami, FL 33131
Telephone: (305) 330-5512
Facsimile: (305) 676-9006
E-mail: swestcot@bursor.com
sbeck@bursor.com
ZENDESK INC: Anderson Securities Suit Stayed
--------------------------------------------
Zendesk, 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 June 2, 2020, a purported
stockholder of the company filed a derivative complaint in the
United States District Court for the Northern District of
California, entitled "Anderson v. Svane, et al.," Case No.
3:20-cv-03671, against certain of the its executive officers and
directors. Mikkel Svane is Zendesk's CEO.
The derivative complaint alleges breaches of fiduciary duty against
all defendants, and includes claims for insider trading and
violations of Section 10(b) of the Securities Exchange Act of 1934
against the officer defendants, purportedly on behalf of the
Company itself. They claim that the defendants misrepresented
and/or omitted material information in certain of the company's
prior public filings. On May 6, 2021, the court approved a joint
stipulation to extend the stay of action.
Zendesk builds software that helps organizations build better
customer relationships through conversational experiences and
designs customer experience solutions.
ZENDESK INC: Dismissal of Securities Suit Under Appeal
------------------------------------------------------
Zendesk, 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 purported stockholders of the
company filed two putative class action complaints in the United
States District Court for the Northern District of California on
October 24, 2019 and November 7, 2019, entitled "Charles Reidinger
v. Zendesk, Inc., et al.," 3:19-cv-06968-CRB and "Ho v. Zendesk,
Inc., et al.," No. 3:19-cv-07361-WHA, respectively, against the
company and certain of its executive officers.
The complaints alleged violations of Section 10(b) and Section
20(a) of the Securities Exchange Act of 1934, as amended,
purportedly on behalf of all persons who purchased Zendesk, Inc.
common stock between February 6, 2019 and October 1, 2019,
inclusive. The claims are based upon allegations that the
defendants misrepresented and/or omitted material information in
certain of the prior public filings. The court appointed a lead
plaintiff and consolidated the various lawsuits into a single
action (Case No. 3:19-cv-06968-CRB), and the lead plaintiff filed
its amended complaint on April 14, 2020 asserting the same alleged
violations of securities laws as the initial complaints. On June
29, 2020, Zendesk and the executive officer defendants moved to
dismiss the amended complaint. On November 9, 2020, the court
granted Zendesk's motion to dismiss and granted plaintiff leave to
amend its complaint. On January 8, 2021, plaintiff filed its second
amended complaint and on January 22, 2021, Zendesk and the
executive officer defendants moved to dismiss the second amended
complaint. On March 23, 2021, judgment was entered in favor of
Zendesk and the executive officer defendants. On April 20, 2021,
plaintiff filed a notice of appeal with the U.S. Court of Appeals
for the Ninth Circuit. On July 29, 2021, plaintiff filed its
opening brief in the appeal, and on October 13, 2021, the company
and the executive officer defendants filed their answering brief.
Oral arguments occurred on February 7, 2022.
Zendesk builds software that helps organizations build better
customer relationships through conversational experiences and
designs customer experience solutions.
ZIMMER BIOMET: Class Settlement in Karl Suit Gets Final Approval
-----------------------------------------------------------------
In the class action lawsuit captioned as JAMES KARL v. Zimmer
Biomet Holdings, Inc., et al., Case No. 3:18-cv-04176-WHA (N.D.
Cal.), the Hon. Judge William Alsup entered an order granting final
approval of the class settlement:
-- The Plaintiff's request to finally certify, for settlement
purposes, the proposed settlement class under Rule 23(a), (b)
(3), and (e) is granted.
-- The Plaintiff's further request that this order find the
class notice as implemented satisfied Rule 23 and due process
is granted.
-- The Plaintiff's further request to finally appoint plaintiff
James Karl as the settlement class representative is granted.
-- The Plaintiff's further request to appoint as lead counsel
Jason Lohr of Lohr Ripamonti & Segarich LLP, and as class
counsel Roberto Ripamonti of Lohr Ripamonti & Segarich LLP
and Denis Kenny and John Lough of Scherer Smith & Kenny LLP,
each as counsel for the settlement class under Rule 23(g) is
granted.
-- The Plaintiff's further request to finally approve payment to
CPT Group as the settlement administrator is granted
-- This order awards attorney's fees in the amount of
$1,814,826.67 to be distributed in installments
-- This order further awards class counsel costs in the amount
of $25,645.
Zimmer Biomet is a publicly traded medical device company. It was
founded in 1927 to produce aluminum splints. The firm is
headquartered in Warsaw, Indiana, where it is part of the medical
devices business cluster.
A copy of the Court's order dated March 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3Ij13Es at no extra charge.[CC]
*********
S U B S C R I P T I O N I N F O R M A T I O N
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