/raid1/www/Hosts/bankrupt/CAR_Public/220422.mbx
C L A S S A C T I O N R E P O R T E R
Friday, April 22, 2022, Vol. 24, No. 75
Headlines
3M COMPANY: Mercier Sues Over Exposure to Toxic Film-Forming Foams
A.B.C. TANK: Posyer Sues Over Unpaid Minimum, Overtime Wages
ABBVIE INC: Bragar Eagel & Squire Reminds of June 6 Deadline
ABBVIE INC: Kessler Topaz Meltzer Reminds of June 6 Deadline
ABBVIE INC: Rosen Law Firm Reminds of June 6 Deadline
AGRI STATS: Labbatt's Bid to Quash Category 4 of Subpoena Granted
AMERICAN AIRLINES: Wins Bid to Amend Scanlan's Class Definition
AMERICAN FAMILY MUTUAL: Johnson Files Suit in W.D. Wisconsin
APEX FOOT HEALTH: Loadholt Files ADA Suit in S.D. New York
APPLE INC: N.D. California Grants Bid to Dismiss Price Class Suit
ARIZONA BEVERAGES: Court Narrows Claims in Ashour Consumer Suit
ART+1 INC: Sanchez Suit Parties Must File Settlement Payout Table
BP EXPLORATION: Bid for Summary Judgment in Perkins Suit Granted
BP EXPLORATION: Wins in Part Summary Judgment in Torres-Lugo Suit
CALVERT'S EXPRESS: Court Issues Protective Order in Heitzman Suit
CELSIUS HOLDINGS: Rosen Law Firm Reminds of May 16 Deadline
CIOX HEALTH: Gordon & Centracchio Suit Removed to N.D. Illinois
DIRECT ENERGY: Court Enters Final Judgment in Stanley Class Suit
DIRECT GENERAL: Stephens Suit Removed to N.D. Georgia
DISTRICT OF COLUMBIA: Partly Wins Bid to Waive Penalties in Salazar
ECLIPSE SENIOR: Court Stays Taylor Class Suit Pending Arbitration
EMBARK TECHNOLOGY: Kaskela Law Announces Shareholder Class Action
EMBARK TECHNOLOGY: Rosen Law Firm Reminds of May 31 Deadline
EMONEYUSA HOLDINGS: Haas Files FCRA Suit in W.D. Wisconsin
EVERBRIDGE INC: Rosen Law Firm Reminds of June 3 Deadline
EVERGREEN PACKAGING: Faces Wallace Suit Over Unpaid OT Wages
FAT BRANDS: Bragar Eagel & Squire Reminds of May 17 Deadline
FCA US: Michigan Court Denies Milisits' Bid for Protective Order
FEI LABS: Shomroni Sues Over Sale of Unregistered Securities
FEROLIE CORP: Failed to Provide Timely Wages, Robles Says
FREEDOM FINANCIAL: Denial of Arbitration Bid in Berman Suit Upheld
FREEMAN EXPOSITIONS: Landucci's $500K Class Deal Gets Prelim. Nod
FULTON SAVINGS: Improperly Charges Overdraft Fees, Preaster Says
GOLDEN STATE LUMBER: Ruelas Files Suit in Cal. Super. Ct.
GONSALVES & SANTUCCI: Rodriguez Suit Dismissed With Prejudice
GRAB HOLDINGS: Kessler Topaz Reminds of May 16 Deadline
GRAND GATEWAY: Faces Racial Discrimination Class Action
GUIDA-SEIBERT DAIRY: Gould Files Suit in D. New Jersey
HENRI COLLECTIVE: Hyppolite Sues Over Unpaid Wages
HOMOLOGY MEDICINES: Rosen Law Firm Reminds of May 24 Deadline
HONEYWELL INT'L: Court Grants Bid for Entry of Judgment in UAW Suit
HONG KONG KITCHEN: Rossete Files FLSA Suit in S.D. New York
JAMES KOUTOULAS: Ford Sues Over False and Misleading Statements
JAS LINKS HEALTHCARE: Yopp Sues Over Unpaid Overtime Wages
JIM KOONS: Perez Sues Over Failure to Protect Customers' Info
LAKEVIEW LOAN: Stone Sues Over Failure to Protect Customers' Info
LIFELONG MEDICAL: Cowan Suit Moved to Alameda County Superior Court
LOS ANGELES COUNTY, CA: Time to Answer Amended Thai Suit Extended
MARKSMEN LANDSCAPING: Henry Suit Removed to N.J. Dist. Ct.
ME NORTHERN BAY: Farris Files Suit in Cal. Super. Ct.
MERCEDES-BENZ USA: Judge Tosses Transmission Class Action
MONONGALIA HEALTH: Fails to Protect Patients' Info, Silbaugh Says
MUTUAL OF OMAHA INSURANCE: Jones Files TCPA Suit in D. Maryland
MVP EVENT PRODUCTIONS: Bates Files Suit in Cal. Super. Ct.
MYLAN INC: Court Narrows Claims in EpiPen Direct Purchaser Suit
NATIONAL MATH AND SCIENCE: Oche Files Suit in N.D. Texas
NATIONSTAR MORTGAGE: Kushner Suit Removed to N.D. Ohio
NEW JERSEY: Court Dismisses Clark's Petition for Release From Jail
NVA FINANCIAL SERVICES: Loope Files TCPA Suit in N.D. New York
OCWEN LOAN: Judgment Awarding Damages in Bishop Suit Reversed
PAPA HOTEL: Mendez Files FLSA Suit in S.D. New York
PEPSICO INC: Poulson Sues Over Unpaid Wages After Kronos Hack
PEPSICO INC: Tschudy Seeks Unpaid Wages After Kronos Data Breach
PLAYSTUDIOS INC: Rosen Law Firm Reminds of June 6 Deadline
PRIORITY PAYMENT: PJEI Sues Over Fraudulent Inducement
RIVIAN AUTOMOTIVE: Rosen Law Firm Reminds of May 6 Deadline
RUBIN & ROTHMAN: Wins Bid for Judgment on Pleadings in Faherty Suit
SARMA COLLECTIONS: Hartley FDCPA Suit Transferred to N.D. Florida
SBE/KATSUYA USA: Wins Bid for Judgment on Pleadings in Downing Suit
SOPHIE BUHAI: Picon Files ADA Suit in S.D. New York
STOESSER INDUSTRIES: Roundtree Files Suit in Cal. Super. Ct.
STRICKLAND WATERPROOFING: Workers Class Certified in Farias Suit
SUPERCARE HEALTH: Fails to Protect Patients' Info, Angulo Says
TACOS DAVIE: Soto Files Suit Over Unpaid Minimum, Overtime Wages
TAZEWELL COUNTY, IL: Court Dismisses Complaint in Atkinson v. Lower
TOYOTA BOSHOKU: Transou Sues Over Production Staff's Unpaid OT
UBER TECHNOLOGIES: Malik Sues Over Wage and Hour Violations
UNITED BUILDING: Salgado Files Suit in Cal. Super. Ct.
UNITED PARCEL: Van Tassel Sues Over Unlawful Labor Practices
VOLT MANAGEMENT: Bid to Remand Ramirez Suit to Kern County Denied
VOLTA INC: Bragar Eagel & Squire Reminds of May 31 Deadline
VOLTA INC: Rosen Law Firm Reminds of May 31 Deadline
VOLTA INC: Vincent Wong Law Reminds of May 31 Deadline
WAL-MART STORES: Court Denies Griego's Bid for Class Certification
WASTE MANAGEMENT: Bids to Dismiss Claims in Fresh Air Suit Granted
WEWORK COMPANIES: Illinois Court Dismisses Osborne BIPA Suit
WILSON & SON: Picon Files ADA Suit in S.D. New York
[^] CLASS ACTION Money & Ethics Conference on May 2 - Be A Speaker
Asbestos Litigation
ASBESTOS UPDATE: EPA Proposes to Ban Importation of Asbestos
*********
3M COMPANY: Mercier Sues Over Exposure to Toxic Film-Forming Foams
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Terry Mercier, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS
INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE
FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN
PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY
FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Case No. 2:22-cv-01061-RMG (D.S.C., April 1,
2022), is brought for damages for personal injury resulting from
exposure to aqueous film-forming foams ("AFFF") containing the
toxic chemicals collectively known as per and polyfluoroalkyl
substances ("PFAS"). PFAS includes, but is not limited to,
perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid
("PFOS") and related chemicals including those that degrade to PFOA
and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires. The Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter and was diagnosed with
prostate cancer as a result of exposure to the Defendants' AFFF
products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Phone: 631-600-0000
Facsimile: 631-543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Phone: 205-328-9200
Facsimile: 205-328-9456
A.B.C. TANK: Posyer Sues Over Unpaid Minimum, Overtime Wages
------------------------------------------------------------
Jordan Posyer, on behalf of himself and others similarly situated
in the proposed FLSA Collective Action, Plaintiff v. A.B.C. Tank
Repair & Lining, Inc., A. Iengo Tank Cleaning Co., Inc., and Robert
Iengo (a/k/a Roberto Iengo), Defendants, Case No. 1:22-cv-02069
(E.D.N.Y., April 11, 2022) seeks injunctive and declaratory relief
and to recover unpaid overtime wages, spread-of-hours, liquidated
and statutory damages, pre- and post-judgment interest, and
attorneys' fees and costs pursuant to the Fair Labor Standards Act,
the New York Labor Law, and the NYLL's Wage Theft Prevention Act.
Plaintiff Posyer was employed as a non-managerial employee at "ABC
Tank Cleaning & Repairs" from April 2021 through and including the
present date.
The Defendant owns and operates an oil tank cleaning and repair
company, known as "ABC Tank Cleaning & Repairs."[BN]
The Plaintiff is represented by:
Jason Mizrahi, Esq.
Joshua Levin-Epstein, Esq.
LEVIN-EPSTEIN & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4700
New York, NY 10165
Telephone: (212) 792-0048
E-mail: Jason@levinepstein.com
ABBVIE INC: Bragar Eagel & Squire Reminds of June 6 Deadline
------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized shareholder
rights law firm, reminds investors that class actions have been
commenced on behalf of stockholders of ABBVie, Inc. (NYSE: ABBV)
and Twitter, Inc. (NYSE: TWTR). Stockholders have until the
deadlines below to petition the court to serve as lead plaintiff.
Additional information about each case can be found at the link
provided.
ABBVie, Inc. (NYSE: ABBV)
Class Period: April 30, 2021 - August 31, 2021
Lead Plaintiff Deadline: June 6, 2022
AbbVie is one of the world's largest pharmaceutical companies. The
company's revenues will come under significant pressure in the
coming years when its best-selling drug, Humira, will lose patent
protection in 2023. Accordingly, AbbVie's future revenue and
earnings depend in large part on its ability to develop new sources
of revenue to offset Humira's lost sales. Rinvoq -- an
anti-inflammatory drug manufactured by AbbVie and used to treat
rheumatoid arthritis (RA) and other diseases by inhibiting Janus
kinase (JAK) enzymes -- was touted as one such drug. Rinvoq was
initially approved in the United States to treat only moderate to
severe RA. However, AbbVie was actively pursuing additional
treatment indications and, in 2020, asked the U.S. Food and Drug
Administration (FDA) to approve Rinvoq for the treatment of several
other diseases.
As is relevant here, Rinvoq is similar to other JAK inhibitor
drugs, including Xeljanz, manufactured by Pfizer Inc. When the FDA
approved Xeljanz in 2012 for the treatment of RA, it required an
additional safety trial to evaluate Xeljanz's risk of triggering
certain serious side effects. Beginning in February 2019, the FDA
repeatedly warned the public that the safety trial indicated that
Xeljanz's use could lead to serious heart-related issue, cancer,
and other adverse events. Notwithstanding the similarities between
Rinvoq and Xeljanz, during the Class Period, Defendants assured
investors that Rinvoq was far safer than Xeljanz and not subject to
the same regulatory risks.
However, investors began to learn the truth about Rinvoq's
significant risks on June 25, 2021, when AbbVie revealed that the
FDA was delaying its review of expanded treatment applications for
Rinvoq due to the safety concerns associated with Xeljanz. On this
news, the price of AbbVie common stock declined $1.76 per share, or
approximately 1.5%, from a close of $114.74 per share on June 24,
2021, to close at $112.98 per share on June 25, 2021.
Then, on September 1, 2021, the FDA announced that final results
from the Xeljanz safety trial established an increased risk of
serious adverse events, even with low doses of Xeljanz. As a
result, the FDA determined that it would require new and updated
warnings for Xeljanz and Rinvoq because Rinvoq "share[s] similar
mechanisms of action with Xeljanz" and "may have similar risks as
seen in the Xeljanz safety trial." The FDA also indicated that it
would further limit approved indications for Rinvoq as a result of
these safety concerns. On this news, the price of AbbVie common
stock declined $8.51 per share, or more than 7%, from a close of
$120.78 per share on August 31, 2021, to close at $112.27 per share
on September 1, 2021.
After the Class Period, on December 3, 2021, AbbVie announced that
the FDA had updated Rinvoq's label to require additional safety
warnings and limit marketing of Rinvoq to only its use after
treatment with other drugs has failed. On January 11, 2022,
Defendants admitted that these changes to Rinvoq's label would
negatively impact sales, forcing the Company to reduce its
long-term guidance for Rinvoq's sales in 2025.
The complaint alleges that, throughout the Class Period, the
Defendants made materially false and/or misleading statements,
about the company's business and operations. Specifically,
Defendants misrepresented and/or failed to disclose that: (1)
safety concerns about Xeljanz extended to Rinvoq and other JAK
inhibitors; (2) as a result, it was likely that the FDA would
require additional safety warnings for Rinvoq and would delay the
approval of additional treatment indications for Rinvoq; and (3)
therefore, Defendants' statements about the company's business,
operations, and prospects lacked a reasonable basis, As a result of
the Defendants' wrongful acts and omissions, and the significant
decline in the market value of AbbVie's securities, AbbVie
investors have suffered significant damages.
For more information on the AbbVie class action go to:
https://bespc.com/cases/ABBV
Twitter, Inc. (NYSE: TWTR)
Class Period: March 24, 2022 - April 1, 2022
Lead Plaintiff Deadline: June 13, 2022
Elon Musk, the founder of Tesla and Space-X, and according to
Forbes, the richest person in the world, started to acquire shares
of Twitter beginning in January 2022. By March 14, 2022, Musk had
acquired more than a 5% ownership stake in Twitter, requiring him
to file a Schedule 13 with the United States Securities and
Exchange Commission ("SEC") within 10 days, or March 24, 2022.
Musk did not file a Schedule 13 with the SEC within the required
time and instead continued to amass Twitter shares, eventually
acquiring a 9.1% stake in the Company before finally filing a
Schedule 13 on April 4, 2022. By the time Musk filed the required
Schedule 13, revealing his ownership stake in Twitter, the
Company's share rose from a closing price of $39.31 per share on
April 1, 2022, to close at $49.97 per share on April 4, 2022 – an
increase of approximately 27%.
Investors who sold shares of Twitter Stock between March 24, 2022,
and before the actual April 4, 2022 disclosure, missed the
resulting share price increase as the market reacted to Musk's
purchases. By failing to timely disclose his ownership stake, Musk
was able to acquire shares of Twitter less expensively during the
Class Period.
For more information on the Twitter class action go to:
https://bespc.com/cases/TWTR
About Bragar Eagel & Squire, P.C.:
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com . Attorney advertising. Prior
results do not guarantee similar outcomes.
Contact Information:
Bragar Eagel & Squire, P.C.
Brandon Walker, Esq.
Alexandra B. Raymond, Esq.
(212) 355-4648
investigations@bespc.com
www.bespc.com [GN]
ABBVIE INC: Kessler Topaz Meltzer Reminds of June 6 Deadline
------------------------------------------------------------
The law firm of Kessler Topaz Meltzer & Check, LLP (www.ktmc.com)
informs investors that the firm has filed a securities class action
lawsuit against AbbVie, Inc. (AbbVie) ABBV on behalf of all persons
and entities who purchased or otherwise acquired AbbVie securities
between April 30, 2021, and August 31, 2021, inclusive (the "Class
Period").
https://www.ktmc.com/new-cases/abbvie-inc?utm_source=PR&utm_medium=link&utm_campaign=abbvie&mktm=r
LEAD PLAINTIFF DEADLINE: JUNE 6, 2022
CLASS PERIOD: APRIL 30, 2021 through AUGUST 31, 2021
CONTACT AN ATTORNEY TO DISCUSS YOUR RIGHTS:
James Maro, Esq. (484) 270-1453 or Email at info@ktmc.com
Kessler Topaz is one of the world's foremost advocates in
protecting the public against corporate fraud and other wrongdoing.
Our securities fraud litigators are regularly recognized as leaders
in the field individually and our firm is both feared and respected
among the defense bar and the insurance bar. We are proud to have
recovered billions of dollars for our clients and the classes of
shareholders we represent.
ABBVIE'S ALLEGED MISCONDUCT
AbbVie is one of the world's largest pharmaceutical companies. The
company's revenues will come under significant pressure in the
coming years when its best-selling drug, Humira, will lose patent
protection in 2023. Accordingly, AbbVie's future revenue and
earnings depend in large part on its ability to develop new sources
of revenue to offset Humira's lost sales. Rinvoq-an
anti-inflammatory drug manufactured by AbbVie and used to treat
rheumatoid arthritis (RA) and other diseases by inhibiting Janus
kinase (JAK) enzymes-was touted as one such drug. Rinvoq was
initially approved in the United States to treat only moderate to
severe RA. However, AbbVie was actively pursuing additional
treatment indications and, in 2020, asked the U.S. Food and Drug
Administration (FDA) to approve Rinvoq for the treatment of several
other diseases.
As is relevant here, Rinvoq is similar to other JAK inhibitor
drugs, including Xeljanz, manufactured by Pfizer Inc. When the FDA
approved Xeljanz in 2012 for the treatment of RA, it required an
additional safety trial to evaluate Xeljanz's risk of triggering
certain serious side effects. Beginning in February 2019, the FDA
repeatedly warned the public that the safety trial indicated that
Xeljanz's use could lead to serious heart-related issue, cancer,
and other adverse events. Notwithstanding the similarities between
Rinvoq and Xeljanz, during the Class Period, Defendants assured
investors that Rinvoq was far safer than Xeljanz and not subject to
the same regulatory risks.
However, investors began to learn the truth about Rinvoq's
significant risks on June 25, 2021, when AbbVie revealed that the
FDA was delaying its review of expanded treatment applications for
Rinvoq due to the safety concerns associated with Xeljanz. On this
news, the price of AbbVie common stock declined $1.76 per share, or
approximately 1.5%, from a close of $114.74 per share on June 24,
2021, to close at $112.98 per share on June 25, 2021.
Then, on September 1, 2021, the FDA announced that final results
from the Xeljanz safety trial established an increased risk of
serious adverse events, even with low doses of Xeljanz. As a
result, the FDA determined that it would require new and updated
warnings for Xeljanz and Rinvoq because Rinvoq "share[s] similar
mechanisms of action with Xeljanz" and "may have similar risks as
seen in the Xeljanz safety trial." The FDA also indicated that it
would further limit approved indications for Rinvoq as a result of
these safety concerns. On this news, the price of AbbVie common
stock declined $8.51 per share, or more than 7%, from a close of
$120.78 per share on August 31, 2021, to close at $112.27 per share
on September 1, 2021.
After the Class Period, on December 3, 2021, AbbVie announced that
the FDA had updated Rinvoq's label to require additional safety
warnings and limit marketing of Rinvoq to only its use after
treatment with other drugs has failed. On January 11, 2022,
Defendants admitted that these changes to Rinvoq's label would
negatively impact sales, forcing the Company to reduce its
long-term guidance for Rinvoq's sales in 2025.
The complaint alleges that, throughout the Class Period, the
Defendants made materially false and/or misleading statements,
about the company's business and operations. Specifically,
Defendants misrepresented and/or failed to disclose that: (1)
safety concerns about Xeljanz extended to Rinvoq and other JAK
inhibitors; (2) as a result, it was likely that the FDA would
require additional safety warnings for Rinvoq and would delay the
approval of additional treatment indications for Rinvoq; and (3)
therefore, Defendants' statements about the company's business,
operations, and prospects lacked a reasonable basis, As a result of
the Defendants' wrongful acts and omissions, and the significant
decline in the market value of AbbVie's securities, AbbVie
investors have suffered significant damages.
WHAT CAN I DO?
AbbVie investors may, no later than June 6, 2022, seek to be
appointed as a lead plaintiff representative of the class through
Kessler Topaz Meltzer & Check, LLPor other counsel, or may choose
to do nothing and remain an absent class member. Kessler Topaz
Meltzer & Check, LLP encourages AbbVie investors who have suffered
significant losses to contact the firm directly to acquire more
information.
WHO CAN BE A LEAD PLAINTIFF?
A lead plaintiff is a representative party who acts on behalf of
all class members in directing the litigation. The lead plaintiff
is usually the investor or small group of investors who have the
largest financial interest and who are also adequate and typical of
the proposed class of investors. The lead plaintiff selects counsel
to represent the lead plaintiff and the class and these attorneys,
if approved by the court, are lead or class counsel. Your ability
to share in any recovery is not affected by the decision of whether
or not to serve as a lead plaintiff.
ABOUT KESSLER TOPAZ MELTZER & CHECK, LLP
Kessler Topaz Meltzer & Check, LLP prosecutes class actions in
state and federal courts throughout the country and around the
world. The firm has developed a global reputation for excellence
and has recovered billions of dollars for victims of fraud and
other corporate misconduct. All of our work is driven by a common
goal: to protect investors, consumers, employees and others from
fraud, abuse, misconduct and negligence by businesses and
fiduciaries. For more information about Kessler Topaz Meltzer &
Check, LLP please visit www.ktmc.com.
CONTACT:
Kessler Topaz Meltzer & Check, LLP
James Maro, Jr., Esq.
280 King of Prussia Road
Radnor, PA 19087
(484) 270-1453
info@ktmc.com [GN]
ABBVIE INC: Rosen Law Firm Reminds of June 6 Deadline
-----------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, reminds
purchasers of the securities of AbbVie Inc. (NYSE: ABBV) between
April 30, 2021 and August 31, 2021, inclusive (the 'Class Period'),
of the important June 6, 2022 lead plaintiff deadline.
SO WHAT: If you purchased AbbVie securities during the Class Period
you may be entitled to compensation without payment of any out of
pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the AbbVie class action, go to or call
Phillip Kim, Esq. toll-free at 866-767-3653 or email or for
information on the class action. A class action lawsuit has already
been filed. If you wish to serve as lead plaintiff, you must move
the Court no later than June 6, 2022. A lead plaintiff is a
representative party acting on behalf of other class members in
directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Many of these firms do not actually
handle securities class actions, but are merely middlemen that
refer clients or partner with law firms that actually litigate the
cases. Be wise in selecting counsel. The Rosen Law Firm represents
investors throughout the globe, concentrating its practice in
securities class actions and shareholder derivative litigation.
Rosen Law Firm has achieved the largest ever securities class
action settlement against a Chinese Company. Rosen Law Firm was
Ranked No. 1 by ISS Securities Class Action Services for number of
securities class action settlements in 2017. The firm has been
ranked in the top 4 each year since 2013 and has recovered hundreds
of millions of dollars for investors. In 2019 alone the firm
secured over $438 million for investors. In 2020, founding partner
Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar.
Many of the firm's attorneys have been recognized by Lawdragon and
Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) safety concerns about Xeljanz
and Xeljanz XR extended to Rinvoq and other Janus kinase (JAK)
inhibitors; (2) as a result, it was likely that the FDA would
require additional safety warnings for Rinvoq and would delay the
approval of additional treatment indications for Rinvoq; and (3)
therefore, defendants' statements about AbbVie's business,
operations, and prospects lacked a reasonable basis. When the true
details entered the market, the lawsuit claims that investors
suffered damages.
To join the AbbVie class action, go to or call Phillip Kim, Esq.
toll-free at 866-767-3653 or email or for information on the class
action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Follow us for updates on LinkedIn, on Twitter or on Facebook .
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827 [GN]
AGRI STATS: Labbatt's Bid to Quash Category 4 of Subpoena Granted
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In the case, IN RE: SUBPOENAS ISSUED TO LABATT FOOD SERVICE, LLC
AND BLAIR LABATT, Case No. SA-21-MC-01242-XR (W.D. Tex.), Judge
Xavier Rodriguez of the U.S. District Court for the Western
District of Texas, San Antonio Division, issued an order:
1. granting in part and denying in part Labatt's Amended
Motion to Quash Subpoena to Produce Documents; and
2. denying the Plaintiffs' Motion to Compel Labatt to Comply
with Subpoena.
The Court considered, (1) Labatt Food Service, LLC's ("Labatt")
Amended Motion to Quash Subpoena to Produce Documents, the
Commercial and Institutional Indirect Purchaser Plaintiffs'
("Plaintiffs" or "CIIPPs") response, and Labatt's reply; (2)
Plaintiffs' Motion to Transfer, Labatt's response, and Plaintiffs'
reply; and (3) Plaintiffs' Motion to Compel Labatt to Comply with
Subpoena, and Labatt's response.
I. Background
The underlying litigation from which the challenged subpoena arose
is a complex antitrust class action involving the production and
sale of turkey products, In Re Turkey Antitrust Litigation, No.
1:19-CV-08318 (the "Underlying Suit"), which has been pending in
the Northern District of Illinois since 2019. The Plaintiffs are
commercial and institutional indirect purchasers of turkey, such as
restaurants and caterers. Their complaint alleges that the nation's
leading turkey suppliers, aided by a corporate intelligence firm
acting as an intermediary, conspired to fix, raise, maintain, and
stabilize the price of turkey from at least 2010 to the present.
At class certification, CIIPPs will be required to demonstrate that
their damages are calculable on a class-wide basis. That includes
demonstrating an overcharge on the price of turkey sold by the
defendants to direct purchasers, such as Labatt, and then measuring
pass-through of that overcharge to CIIPPs. Precedent provides that
CIIPPs can make this showing, in part, by using data from
participants in the distribution channel in regressions that
measure the level of pass-through (the term of art used to describe
the passing through of some or all of the overcharge from the
direct purchaser level down to the indirect purchaser or consumer
level). In an effort to gather evidence to support their
allegations of the conspiracy's nationwide effect on turkey prices,
CIIPPs have issued subpoenas to approximately eighty food
distributors across the country requesting structured transactional
data. In addition to CIIPPs, other groups of plaintiffs, as well as
Defendants, are also issuing subpoenas to third parties to obtain
similar transactional data.
On Nov. 16, 2021, Labatt, a food distributor based in San Antonio,
was served with a relevant third-party subpoena seeking six
categories of documents and data reflecting its analysis of
competition in the turkey market and detailed transactional data
for all of its turkey purchases and sales dating back to Jan. 1,
2005. Labatt filed a motion to quash CIIPPSs' subpoena on Dec. 15,
2021, followed by an amended motion on Dec. 27, 2021
During the meet and confer process, the Plaintiffs agreed to
significantly narrow the scope of the subpoena to two categories of
documents and data -- transactional data for purchases and sales of
turkey since 2005. Labatt agreed to produce the relevant purchase
information, but only some of the relevant sales data, including
the "customer specific allowances" or "deviations" offered by the
manufacturers and a stipulation that "it passes on all manufacturer
price increases" and thus does not "absorb" any such price
increases from turkey producers.
On March 11, 2022, the Plaintiffs filed a motion to transfer
Labatt's motion to quash to the Northern District of Illinois, the
issuing court, pursuant to Rule 45 of the Federal Rules of Civil
Procedure. On March 21, the Plaintiffs filed a motion to compel
Labatt to comply with the subpoena, arguing that Labatt's
transactional data, documenting both purchase and sales
transactions for turkey, is critical to measure pass-through to the
CIIPP class and thus the proof of CIIPPs' claims. The Court held a
hearing on all pending motions on March 30, 2022.
II. Discussion
A. Motion to Transfer
In support of their motion to transfer, the Plaintiffs submit that
the issuing court is in the best position to rule on the pending
discovery motions because the Underlying Suit is a complex,
nationwide antitrust class action involving multiple classes of
plaintiffs and has been pending in the Northern District of
Illinois for over two years. They further assert that any ruling by
this Court on the pending motions has the potential to disrupt the
Northern District's management of the Underlying Suit in light of
the dozens of third-party subpoenas that have been issued to turkey
distributers across the country and the likelihood that the parties
will be confronted by motions to quash in many districts
implicating the same arguments in Labatt's motion.
While the Court recognizes that "uniformity of discovery ruling is
critical to achieving fairness to the parties and non-parties,"
Judge Rodriguez holds that the Plaintiffs have not identified a
single ruling by the issuing court that would support a finding
that the Court's ruling would actually interfere with the
management of the Underlying Suit. Given that the Court's prime
concern is "avoiding burdens on local nonparties subject to
subpoenas," Judge Rodriguez will not assume that the issuing court
superior position to rule on the subpoena-related motions based on
the Plaintiffs' mere speculation that inconsistent rulings are
possible.
In sum, Judge Rodriguez is not persuaded that the case presents the
kind of exceptional circumstances that would justify transferring
the subpoena-related motions to the issuing court. Accordingly, the
Plaintiffs' Motion to Transfer is denied.
B. Motion to Quash and Motion to Compel
Based on the parties' previous agreements, the only
subpoena-related dispute that remains to be resolved concerns
Category 4 of the subpoena, which seeks documents and transactional
data for all of Labatt's turkey sales dating back to Jan. 1, 2005.
Judge Rodriguez concludes that the requested sales data is neither
relevant to the Plaintiffs' claims in the Underlying Suit nor
proportional to the needs of the case. He says, while the
Plaintiffs insist that Labatt's transactional data, documenting
both purchase and sales transactions for turkey, is critical to
measure pass-through to the CIIPP class, the Plaintiffs' counsel
was unable to describe at the hearing how their damages model would
account for deviations in the Labatt's turkey pricing that were
unrelated to changes in the producer's price. It appears to the
Court that the purchasing data Labatt has agreed to provide, along
with the manufacturer's pricing deviations and Labatt's stipulation
that "it passes on all manufacturer price increases" are sufficient
for the purposes of estimating damages.
To the extent the sales data is relevant to the Plaintiffs' claims,
Judge Rodriguez is not convinced that the request from Labatt, a
non-party to the action, is proportional to the needs of the case,
considering the number of subpoenas seeking similar information
from other distributers and the burden of producing over fifteen
years of sales data, including potentially sensitive or
confidential information concerning Labatt's pricing scheme.
Accordingly, Labatt's motion to quash is granted as to the Category
of the subpoena, except with respect to the limited categories of
sales data that Labatt has already agreed to produce. Insofar as
the Plaintiffs' motion to compel represents the mirror image of
Labatt's motion to quash, it is denied.
III. Conclusion
For the foregoing reasons and the reasons stated in open Court,
Judge Rodriguez denied the Commercial and Institutional Indirect
Purchase Plaintiffs' Motion to Transfer. He granted Labatt's
Amended Motion to Quash with respect to Category 4 of the Subpoena,
the transactional data concerning its sales of turkey and turkey
products, and that the Plaintiffs' Motion to Compel is denied.
Should the Plaintiffs identify a future order on a discovery
dispute by the issuing court that conflicts with the Court's
rulings on the instant motions, the Court will entertain a renewed
motion to compel and motion to transfer the motion to the Northern
District of Illinois.
The cause of action is closed.
A full-text copy of the Court's April 1, 2022 Order is available at
https://tinyurl.com/326fsf3a from Leagle.com.
AMERICAN AIRLINES: Wins Bid to Amend Scanlan's Class Definition
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In the case, JAMES P. SCANLAN on his own behalf and all others
similarly situated, et al. v. AMERICAN AIRLINES GROUP, INC., et
al., Civil Action No. 18-4040 (E.D. Pa.), Judge Harvey Bartle, III,
of the U.S. District Court for the Eastern District of Pennsylvania
grants the motion of the Defendants to amend the class definition.
I. Background
Plaintiff Scanlan, a commercial airline pilot and a retired Major
General in the United States Air Force Reserve, brought a class
action against Defendants American Airlines Group, Inc. ("AAG") and
American Airlines, Inc. ("American") pursuant to the Uniformed
Services Employment and Reemployment Rights Act ("USERRA"), 38
U.S.C. Sections 4301 et seq., and for breach of contract. Carla
Riner, a commercial airline pilot and a Brigadier General in the
Delaware Air National Guard, later joined Scanlan as a class
representative. The Plaintiffs assert that they and the class of
American pilots they represent have not received the compensation
or benefits due to them under the statute and by contract and thus
seek declaratory, injunctive, and monetary relief.
The case arises from the fact that American, AAG's wholly owned
subsidiary, does not compensate its pilots for leave taken to
fulfill their military commitments no matter how long or short that
leave is. American does, however, pay employees who take leave for
jury duty or bereavement. Those employees who take leave for jury
duty either receive their full regular pay or the difference
between their regular compensation and their pay as jurors. The
collective bargaining agreement ("CBA") between American and the
Allied Pilots Association is silent as to bereavement leave, but
American's policy is to provide up to three days of paid
bereavement leave in the event of a death of an immediate family
member.
Meanwhile, American's parent company, AAG, adopted and implemented
the American Airlines Group, Inc. Global Profit Sharing Pla
effective Jan. 1, 2016 to share a portion of its profits with
employees of American and AAG's other subsidiary airlines who are
participants in the Plan. AAG calculates each participant's
individual award by dividing five percent of AAG's pre-tax earnings
by the aggregate amount of all participants' earnings and
multiplying this resulting value by an individual participant's
"eligible earnings." Earnings from paid leave are credited to the
Plan participants for purposes of this allocation.
AAG does not credit short-term military leave1 toward a
participant's eligible earnings under the Plan when employees are
not paid for such leave. However, it does credit the leave and
impute income under the Plan for employees when they take leave for
jury duty or bereavement. As a result, the Plaintiffs and other
similarly situated employees who have taken military leave received
lower profit-sharing awards than they would have received if credit
had been given for such leave. This situation will continue if and
when profits are distributed among Plan participants in the
future.
The Plaintiffs allege in Count I of the second amended complaint
that AAG's policy of not crediting short-term military leave to
participants' eligible earnings for purposes of its Global Profit
Sharing Plan but doing so for jury duty and bereavement leave
violates USERRA, specifically Section 4316(b)(1). They also allege
a violation of this provision in Count III based on American's
failure to pay its employees for short-term military leave while
paying its employees for leave taken for jury duty or bereavement.
Plaintiffs also bring a claim against AAG in Count II for breach of
contract under state law based on the language of the AAG Global
Profit Sharing Plan. The Plaintiffs allege that AAG is violating
the terms of the Plan by not including credit or imputed income for
American pilots' short-term military service.
On Oct. 8, 2021, the Court granted class certification for current
and former American pilots with a subclass for each count of the
second amended complaint. First, it certified a subclass with
regard to Count I that consists of current and former American
Airlines, Inc. pilots who: participated at some point in the AAG
Global Profit Sharing Plan since its inception on Jan. 1, 2016;
were employed in the United States or were a citizen or national or
permanent resident of the United States and employed in a foreign
country while participants in the Plan; took short-term military
leave in a year during which they were entitled to receive an award
under the Plan; and were not credited or imputed earnings for this
short-term military leave.
Second, the Court certified a subclass for Count II of the second
amended complaint for those American pilots included in the
subclass of Count I who, from Jan. 1, 2016 through the date of
judgment in the action, are or were eligible to participate in the
American Airlines, Inc. 401(k) Plan for pilots and subject to
taxation in the United States.
Third, a subclass was certified with regard to Count III of all
current and former American Airlines, Inc. pilots who took
short-term military leave while employed at American at any time
from Jan. 1, 2013 through the date of judgment in the action and
were not paid for that leave equal to what they would have received
had they taken leave for jury duty or bereavement.
Before the Court is the motion of the Defendants to alter or amend
the class definition to exclude from the certified class those
pilots who have retired from the military or American. In response
to the motion of the Defendants to amend the class certification,
the Plaintiffs counter, in part, that a subclass of retired pilots
who no longer work for American or who are no longer in the
military should instead be certified under Rule 23(b)(3). The
Defendants do not object.
II. Discussion
The Court in its prior memorandum granting class certification
conducted an extensive analysis of Rule 23(a) requirements and
found that a class of both current and former American pilots is
proper under Rule 23(a) as well. There is nothing before the Court
to suggest that amending the previous class definition to include a
subclass of solely retired pilots under Rule 23(b)(3) would not
also meet the elements of Rule 23(a). The analysis for a subclass
of retired pilots is unchanged from that for a class of current and
former pilots except the question of numerosity. To that point, the
Defendants' corporate representative, Todd Jewett, certifies that
American's records show that there are approximately 57 pilots who
took military leave of 16 days or fewer during the proposed class
times and are no longer employed at American. There may also be
additional class members, like Scanlan, who have retired from the
military but continue to work at American. These numbers are
sufficient to establish numerosity under Rule 23(a)(1).
The remainder of the Rule 23(a) analysis is unchanged since the
Court's Oct. 8, 2021 memorandum.
Judge Bartle now turns to whether a subclass of retired pilots
meets the requirements of Rule 23(b)(3). This provision is often
referred to as the "money damages class" and allows for
certification when "the court finds that the questions of law or
fact common to class members predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods of fairly and efficiently
adjudicating the controversy."
Judge Bartle finds that in the action, the injunctive and
declaratory relief that the Plaintiffs seek is prospective in
nature and therefore will not benefit those class members, like
Scanlan, who have retired from either American or the military and
will therefore no longer take short-term military leave with
American. However, should the Plaintiffs succeed in the action,
those retired pilots could still be entitled to monetary relief for
the short-term military leave taken during the class period prior
to their retirement. Judge Bartle turns to the requirements under
Rule 23(b)(3).
For Scanlan and other retired pilots, he says, the common question
of law is whether American and AAG violated USERRA by failing to
compensate and credit these pilots for taking short-term military
leave but compensating and crediting time taken for jury duty or
bereavement leave. This question predominates over any individual
questions pertaining to the class. While the exact amount each
retired pilot would be entitled to receive is individualized, it
can readily be determined by a formula computing the amount of
short-term military leave each retired pilot took during the class
period. There are no other individualized issues before the Court
that will predominate over this common question.
Moreover, a subclass of retired pilots in this action would be
superior to individual claims for monetary damages. The Plaintiffs
seek to have short-term military leave compensated and credited the
same as other forms of short-term leave. There is nothing to
indicate that individual prosecution of these claims would be more
beneficial to retired pilots. In addition, litigation on this issue
is already ongoing. A class of American pilots, including former
pilots, has already been certified, discovery has commenced, and
subpoenas for military records from the Department of Defense have
already been issued.
Judge Bartle holds that it is, therefore, beneficial to retired
pilots to continue to be included in this class. He says, it is
also more economical and efficient to both active and retired
pilots, as well as the Court, to certify this subclass as part of
the present litigation. Finally, there are no significant practical
difficulties in including the retired pilots in a subclass
certified under (b)(3). The current pilots can proceed in the
action under (b)(2) and the retired pilots under (b)(3). A subclass
of retired pilots therefore meets the predominance and superiority
requirements of Rule 23(b)(3).
III. Order
Judge Bartle thus amends the Court's prior certification of a class
of current and former American pilots to carve out a subclass under
Rule 23(b)(3) on each count. These subclasses will consist of
American pilots who have retired from either the military or
American and therefore only seek monetary relief as they will not
benefit from prospective injunctive or declaratory relief. For
those current American pilots still active in both the military and
at American their certification pursuant to Rule 23(b)(2) remains
unchanged.
Judge Bartle grants the motion of the Defendants to amend the class
definition. The class of American pilots will be subdivided as
follows.
First, he certifies a subclass under Rule 23(b)(2) with regard to
Count I for AAG's alleged violation of Section 4316 as relates to
the AAG Global Profit Sharing Plan. This subclass will consist of
current American Airlines, Inc. pilots who presently serve in the
military and who: participate at some point in the AAG Global
Profit Sharing Plan since its inception on Jan. 1, 2016 through the
date of judgment in the action; are employed in the United States
or are a citizen or national or permanent resident of the United
States and employed in a foreign country while participants in the
Plan; took or take short-term military leave in a year during which
they were entitled to receive an award under the Plan; and were not
credited or imputed earnings for this short-term military leave.
Second, he certifies a subclass under Rule 23(b)(3) with regard to
Count I that will consist of former pilots of American Airlines,
Inc. or pilots of American who are former members of the military
who: participated at some point in the AAG Global Profit Sharing
Plan since its inception on Jan. 1, 2016 through the date of
judgment in this action; were employed in the United States or were
a citizen or national or permanent resident of the United States
and employed in a foreign country while participants in the Plan;
took short-term military leave in a year during which they were
entitled to receive an award under the Plan; and were not credited
or imputed earnings for this short-term military leave.
Third, he certifies a subclass under Rule 23(b)(2) with regard to
Count II for AAG's alleged breach of contract of those current
American Airlines, Inc. pilots who presently serve in the military
and who: participate at some point from Jan. 1, 2016 through the
date of judgment in this action in the AAG Global Profit Sharing
Plan as well as the American Airlines, Inc. 401(k) Plan for Pilots
and are subject to taxation in the United States; are employed in
the United States or are a citizen or national or permanent
resident of the United States and employed in a foreign country
while participants in the AAG Global Profit Sharing Plan; took or
take short-term military leave in a year during which they were
entitled to receive an award under the AAG Global Profit Sharing
Plan; and were not credited or imputed earnings for this short-term
military leave.
Fourth, Judge Bartle certifies a subclass under Rule 23(b)(3) with
regard to Count II of those former American Airlines, Inc. pilots
or American pilots formerly in the military who: participated at
some point from Jan. 1, 2016 through the date of judgment in the
action in the AAG Global Profit Sharing Plan as well as the
American Airlines, Inc. 401(k) Plan for Pilots and are subject to
taxation in the United States; were employed in the United States
or were a citizen or national or permanent resident of the United
States and employed in a foreign country while participants in the
AAG Global Profit Sharing Plan; took short-term military leave in a
year during which they were entitled to receive an award under the
AAG Global Profit Sharing Plan; and were not credited or imputed
earnings for this short-term military leave.
Fifth, he certifies a subclass under Rule 23(b)(2) with regard to
Count III against American for its alleged violation of Section
4316 consisting of all current American Airlines, Inc. pilots who
presently serve in the military and took or take short-term
military leave while employed at American at any time from Jan. 1,
2013 through the date of judgment in this action and were not paid
for that leave equal to what they would have received had they
taken leave for jury duty or bereavement.
Sixth, he certifies a subclass under Rule 23(b)(3) with regard to
Count III of all former American Airlines, Inc. pilots or American
pilots formerly in the military who took short-term military leave
while employed at American at any time from Jan. 1, 2013 through
the date of judgment in this action and were not paid for that
leave equal to what they would have received had they taken leave
for jury duty or bereavement.
A full-text copy of the Court's April 6, 2022 Memorandum is
available at https://tinyurl.com/yrtmvjfy from Leagle.com.
AMERICAN FAMILY MUTUAL: Johnson Files Suit in W.D. Wisconsin
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A class action lawsuit has been filed against American Family
Mutual Insurance Company. The case is styled as Holly Johnson,
individually and on behalf of all others similarly situated v.
American Family Mutual Insurance Company, Case No. 3:22-cv-00214
(W.D. Wis., April 13, 2022).
The nature of suit is stated as Insurance for Insurance Contract.
American Family Insurance -- https://www.amfam.com/ -- also
abbreviated as AmFam, is an American private mutual company that
focuses on property, casualty, and auto insurance, and also offers
commercial insurance, life, health, and homeowners coverage as well
as investment and retirement-planning products.[BN]
The Plaintiff is represented by:
Andrew John Shamis, Esq.
SHAMIS & GENTILE P.A.
14 N.E. 1st Ave., Ste. 1205
Miami, FL 33132
Phone: (305) 479-2299
Fax: (786) 623-0915
Email: ashamis@sflinjuryattorneys.com
APEX FOOT HEALTH: Loadholt Files ADA Suit in S.D. New York
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A class action lawsuit has been filed against Apex Foot Health
Industries, LLC. The case is styled as Christopher Loadholt, on
behalf of himself and all others similarly situated v. Apex Foot
Health Industries, LLC, Case No. 1:22-cv-03058 (S.D.N.Y., April 13,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Apex Foot -- https://www.apexfoot.com/ -- offers a complete line of
orthopedic comfort shoes.[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Phone: (845) 367-7146
Fax: (732) 298-6256
Email: yzelman@marcuszelman.com
APPLE INC: N.D. California Grants Bid to Dismiss Price Class Suit
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In the case, MATTHEW PRICE, Plaintiff v. APPLE, INC., Defendant,
Case No. 21-cv-02846-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr.
of the U.S. District Court for the Northern District of California
grants Apple's motion to dismiss all eight counts in the
Plaintiff's class action complaint.
I. Background
Plaintiff Price brings the putative class action lawsuit
challenging Defendant Apple's alleged policy of terminating the
Apple ID accounts of its users who seek credit or debit card
payment returns for app purchases that do not work. The Plaintiff
asserts eight counts of fraud, tort, and unfair competition
violations based on Apple's policy.
Apple is a California corporation that designs and sells
smartphones, personal computers, and tablets. These devices run
apps and other services for customers to use. To purchase and
access the apps, Apple requires its customers to have an Apple ID
account and agree to Apple's terms and conditions. The Apple Terms
contain a termination of services section.
The Plaintiff has had an Apple ID since 2015. Using his Apple ID,
he has purchased over $24,000 in apps and services to use on his
Apple devices. After some of the apps did not work, the Plaintiff
complained to Apple. In response, Apple advised him to contact the
app developer. When the Plaintiff contacted the app developer, the
app developer told him that it could not return his money or
otherwise help him because the Plaintiff's purchases were made with
Apple. When the Plaintiff went back to Apple with his complaints,
Apple advised the Plaintiff to institute "chargebacks" --
requesting payment returns from the bank of the credit or debit
card associated with his Apple ID -- for those purchases. Following
Apple's advice, the Plaintiff sought chargebacks for Apple ID
purchases of apps that did not work.
In October 2020, after the Plaintiff processed his chargebacks,
Apple terminated the Plaintiff's Apple ID based on its
determination that he had breached the Apple Terms. As a result,
the Plaintiff was no longer able to use his Apple ID or the $24,000
of app services he had purchased using the Apple ID.
The Plaintiff first filed the putative class action lawsuit against
Apple in April 2021. Five months later, he submitted an amended
complaint, bringing the following claims: (1) impermissible
liquidated damages clause in violation of California Civil Code
Section 1671; (2) unconscionable contract provision in violation of
the CLRA; (3) unconscionable liquidated damages clause in violation
of the UCL; (4) unfair business practice under the UCL; (5)
fraudulent business practice under the UCL; (6) conversion; (7)
trespass to chattels; and (8) unjust enrichment. Apple now moves to
dismiss.
II. Discussion
A. Liquidated Damages (Claim 1)
The Plaintiff's first claim asserts that the Apple Terms'
termination clause is an unlawful liquidated damages clause under
California Civil Code Section 1671. He contends that the provision
"provides a formula by which the amount is certain or readily
ascertainable" -- namely the amount an Apple user spent using his
Apple ID before termination.
Judge Gilliam holds that the formula the Plaintiff asserts based on
the challenged termination provision leads to an amount that is
neither certain nor "readily discernible at the time of breach." He
says, when Apple terminates a user's Apple ID under the termination
provision, the Plaintiff's claimed formula leads to damages equal
to the value of the apps and services the user purchased and can no
longer access -- in the Plaintiff's case, over $24,000. The exact
amount thus necessarily varies from user to user: It depends on
when the Apple ID account was terminated, what the user purchased
through his Apple ID account, and what balance he had in his Apple
ID account.
The Plaintiff's "liquidated damages" theory fails because the
termination provision does not contain a fixed or readily
ascertainable sum as defined in Section 1671, meaning that it is
not a liquidated damages provision at all. Accordingly, Judge
Gilliam grants Apple's motion to dismiss as to the Plaintiff's
first claim.
B. Unconscionability (Claims 2 and 3)
Apple moves to dismiss the Plaintiff's second and third claims on
the grounds that the complaint fails to adequately plead
unconscionability. As the Plaintiff points out, "take it or leave
it" adhesion contracts like the Apple Terms can implicate
procedural unconscionability.
Without determining the degree of procedural unconscionability,
Judge Gilliam concludes that the Plaintiff's claim fails in any
event because he has not alleged facts showing the Apple Terms were
substantively unconscionable. The Plaintiff's explanation for why
the Terms are substantively unconscionable -- the contract permits
Apple to deny its customers access to Apple ID content without any
relationship to Apple's incurred damages -- does not suggest the
Terms are overly harsh or so one-sided as to shock the conscience.
Because the Plaintiff's substantive unconscionability argument
fails, Judge Gilliam dismisses the Plaintiff's second and third
claims. He urges the Plaintiff to consider carefully whether he can
truthfully plead facts sufficient to plausibly meet the "shock the
conscience" standard before simply repeating this unconscionability
argument in any amended complaint.
C. UCL Violations (Claims 4 and 5)
A business act or practice may violate the UCL if it is either
'unlawful,' 'unfair,' or 'fraudulent.' Each of these three
adjectives captures 'a separate and distinct theory of liability.'
The Plaintiff brings his fourth and fifth claims as UCL violations
under the "unfair" and "fraudulent" prongs, respectively.
Judge Gilliam finds that the Plaintiff's allegations simply parrot
the legal standard for "unfair business practice." They do not
compare the harm to consumers against the utility of Apple's
conduct. And they do not support the inference that Apple's
termination of its customers' Apple IDs when it identifies a
failure to comply with the Apple Terms is an "immoral, unethical,
oppressive, unscrupulous, and substantially injurious" practice.
Accordingly, Judge Gilliam grants Apple's motion to dismiss as to
the Plaintiff's UCL "unfairness" claim.
Judge Gilliam also finds that the complaint merely recycles the
same allegation that Apple used adhesion contracts and terminated
its users' Apple ID accounts under the Apple Terms. The Plaintiff
tries to rescue his claim by pointing to allegations elsewhere in
the complaint that he and the putative class members would not have
entered into a contract with Apple or created an Apple ID "if they
had known about the Defendant's 'wrongful, illegal, and
unconscionable conduct." But those allegations are not a substitute
for adequately pleading the basic required elements. Accordingly,
Judge Gilliam grants Apple's motion to dismiss as to the
Plaintiff's UCL fraud claim.
D. Conversion (Claim 6) and Trespass to Chattels (Claim 7)
The Plaintiff's sixth claim for conversion asserts that Apple's
termination of his Apple ID account constituted an unlawful and
intentional interference with his ownership interest in apps and
services purchased and accessible only through his Apple ID. His
seventh claim for trespass to chattels asserts that Apple's
termination of his Apple ID account prevents his use of purchased
apps and services and significantly impairs the function of his
Apple devices.
Apple moves to dismiss the Plaintiff's conversion and trespass to
chattels claims on the grounds that he (1) consented to Apple's
conduct; and (2) does not plausibly allege interference with his
Apple devices.
Judge Gilliam finds that the Plaintiff knew that he would lose
access to his purchased apps and services if Apple determined (or
even suspected) that he failed to comply with the Apple Terms. This
forecloses his conversion claim. Likewise, the Plaintiff's consent
dooms his trespass claim. Again, because the Plaintiff was "on
notice of Apple's ability to interfere with his purchased apps and
services," Judge Gilliam finds that Apple did not act without his
authorization. Accordingly, he grants Apple's motion to dismiss the
Plaintiff's conversion and trespass to chattel claims.
E. Unjust Enrichment (Claim 8)
The Plaintiff's eighth claim for unjust enrichment asserts that
Apple unjustly enriched itself by retaining its users' payments
after terminating their Apple ID accounts under the Apple Terms.
However, the Plaintiff's claim is precluded because an actual,
express agreement -- the Apple Terms -- relates to the conduct at
issue. The Plaintiff does not contest this point. Accordingly,
Judge Gilliam grants Apple's motion to dismiss as to the
Plaintiff's unjust enrichment claim.
F. Equitable Relief
Because the Plaintiff seeks compensation under the UCL and CLRA for
the exact same conduct that forms the basis of his equitable relief
claims, he has an adequate remedy at law. Thus, the Plaintiff's UCL
and CLRA equitable relief claims must be dismissed because the
complaint does not allege that legal remedies are inadequate.
Accordingly, Judge Gilliam grants Apple's motion to dismiss as to
the Plaintiff's UCL and CLRA equitable relief claims.
G. Leave to Amend
Judge Gilliam holds that no new or additional allegations could
possibly cure the deficiencies in the Plaintiff's claims for
liquidated damages, unjust enrichment, and equitable relief without
contradicting prior allegations. He thus finds that any amendment
would be futile and dismisses those claims without leave to amend.
As for the Plaintiff's remaining claims (alleging violations of the
UCL and CLRA, and conversion and trespass to chattel), Judge
Gilliam has significant doubts as to whether the Plaintiff can
amend his complaint, consistent with his Rule 11 obligations, to
allege facts sufficient to allege valid claims. However, because he
cannot conclude that amendment necessarily would be futile, he
dismisses those claims with leave to amend.
III. Conclusion
For the foregoing reasons, Judge Gilliam grants the Defendant's
motion as follows:
1. Apple's motion is granted as to the Plaintiff's Section
1671's liquidated damages claim without leave to amend;
2. Apple's motion is granted as to the Plaintiff's UCL and
CLRA unconscionable provision claims with leave to amend;
3. Apple's motion is granted as to the Plaintiff's UCL unfair
business practice claim with leave to amend;
4. Apple's motion is granted as to the Plaintiff's UCL
fraudulent business practice claim with leave to amend;
5. Apple's motion is granted as to the Plaintiff's conversion
and trespass to chattels claims with leave to amend;
6. Apple's motion is granted as to the Plaintiff's unjust
enrichment claim without leave to amend; and
7. Apple's motion is granted as to the Plaintiff's UCL and
CLRA equitable relief claims without leave to amend.
If the Plaintiff can cure the pleading deficiencies described
above, he must file any amended complaint within 21 days of the
date of the Order.
A full-text copy of the Court's April 6, 2022 Order is available at
https://tinyurl.com/2p9xd4e6 from Leagle.com.
ARIZONA BEVERAGES: Court Narrows Claims in Ashour Consumer Suit
---------------------------------------------------------------
In the lawsuit titled ARMED ASHOUR, JOY BROWN, and CRYSTAL TOWNES,
individually and on behalf of all others similarly situated,
Plaintiff v. ARIZONA BEVERAGES USA LLC, HORNELL BREWING CO., INC.,
BEVERAGE MARKETING USA, INC., ARIZONA BEVERAGES HOLDINGS LLC, and
ARIZONA BEVERAGES HOLDINGS 2 LLC, Defendants, Case No. 19 Civ. 7081
(AT) (S.D.N.Y.), the U.S. District Court for the Southern District
of New York granted in part and denied in part the Defendants'
motion to dismiss the Plaintiffs' second amended complaint.
Plaintiffs Ahmed Ashour, Joy Brown, and Crystal Townes bring the
putative class action against Defendants Arizona Beverages USA LLC,
Hornell Brewing Co., Inc., Beverage Marketing USA, Inc., Arizona
Beverages Holdings LLC, and Arizona Beverages Holdings 2 LLC,
alleging that the Defendants use unfair and deceptive practices in
advertising and marketing their beverages by failing to disclose
that they contain preservatives. The Plaintiffs assert, inter alia,
claims under California and New York law for false advertising,
breach of express warranty, and unjust enrichment in connection
with the Defendants' sale of their beverages.
The Defendants move to dismiss the second amended complaint for
failure to state a claim under Federal Rules of Civil Procedure
12(b)(1), 12(b)(6), and 9(b).
District Judge Analisa Torres ruled that the Defendants' motion is
granted as to:
(1) the Plaintiffs' breach of express warranty claim under New
York law, because the Plaintiffs did not plead privity, a
requirement for that cause of action, Koenig v. Boulder
Brands, 995 F.Supp.2d 274, 290 (S.D.N.Y. 2014); and
(2) the Federal Rule of Civil Procedure 23(b)(2) injunctive
relief claim, which was inadvertently included in the
second amended complaint.
Those claims are, therefore, dismissed. The motion to dismiss is
otherwise denied because the Plaintiffs have plausibly pleaded the
remaining causes of action, Judge Torres holds, citing Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). In due course, the Court will
issue a memorandum opinion addressing the Defendants' motion.
The Clerk of Court is directed to terminate the motion at ECF No.
132.
A full-text copy of the Court's Order dated March 31, 2022, is
available at https://tinyurl.com/4629czne from Leagle.com.
ART+1 INC: Sanchez Suit Parties Must File Settlement Payout Table
-----------------------------------------------------------------
In the case, SALVADOR SANCHEZ, et al., Plaintiffs v. ART+1, INC.,
et al., Defendants, Case No. 20-CV-05623 (SN) (S.D.N.Y.),
Magistrate Judge Sarah Netburn of the U.S. District Court for the
Southern District of New York directed the parties to file a table
listing the settlement payout for each Class Member.
On March 11, 2022, the parties submitted their Motion for
Preliminary Approval of Class Action Settlement. A call was
scheduled for April 7, 2022, at 11:00 a.m. At that time the parties
should dial into the Court's dedicated teleconferencing line at
(877) 402-9757 and enter Access Code 7938632, followed by the pound
(#) key. If the date is unavailable for any party, they must
contact Courtroom Deputy Rachel Slusher immediately at (212)
805-0286.
In their motion, the parties represent that a table listing the
settlement payout for each Class Member is attached as Exhibit B,
but in fact Exhibit B is the Notice of Proposed Class and
Collective Action Settlement and Final Settlement Hearing. The
parties are directed to file the table.
A full-text copy of the Court's April 5, 2022 Order is available at
https://tinyurl.com/y2dkwcfu from Leagle.com.
BP EXPLORATION: Bid for Summary Judgment in Perkins Suit Granted
----------------------------------------------------------------
The U.S. District Court for the Eastern District of Louisiana
grants the motion for summary judgment in the lawsuit titled ISAAC
PERKINS v. BP EXPLORATION & PRODUCTION, INC., ET AL., SECTION:
H(1), Case No. 17-4476 (E.D. La.).
The motion was filed by Defendants BP Exploration & Production,
Inc., BP America Production Company, and BP p.l.c. (collectively,
"BP"). The remaining Defendants (Transocean Holdings, LLC;
Transocean Deepwater, Inc.; Transocean Offshore Deepwater Drilling,
Inc.; and Halliburton Energy Services, Inc.) moved to join in BP's
Motion for Summary Judgment, and the Court granted the request.
Thus, BP's Motion for Summary Judgment is effectively urged by all
Defendants.
Background
The case is one among the "B3 bundle" of cases arising out of the
Deepwater Horizon oil spill. See In Re: Oil Spill by the Oil Rig
"Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, No.
10-md-02179, R. Doc. 26924 at 1 (E.D. La. Feb. 23, 2021).
The bundle comprises claims for personal injury and wrongful death
due to exposure to oil and/or other chemicals used during the oil
spill response (e.g., dispersant). These cases were originally part
of a multidistrict litigation ("MDL") pending in the Eastern
District of Louisiana before Judge Barbier. During this MDL, Judge
Barbier approved the Deepwater Horizon Medical Benefits Class
Action Settlement Agreement, but the B3 plaintiffs either opted out
of this agreement or were excluded from its class definition.
Subsequently, Judge Barbier severed the B3 cases from the MDL to be
reallocated among the judges of this Court. This case was
reassigned to Section H.
Plaintiff Isaac Perkins alleges continuous exposure to harmful
substances and chemicals around his residence in Picayune,
Mississippi, beginning in April of 2010, as a result of the oil
spill and subsequent cleanup efforts. The Plaintiff claims to
suffer from "headaches, dizziness, watery eyes, muscle spasms,
arthritis, and high blood pressure" because of the exposure. The
Plaintiff asserts claims under the general maritime law of
negligence, negligence per se, and gross negligence with respect to
the spill and its cleanup.
Now before the Court is BP's Motion for Summary Judgment. BP argues
that the Plaintiff has failed to produce sufficient evidence to
prove that exposure to oil or dispersants caused his alleged
injuries. To date, the Plaintiff has filed no opposition to BP's
motion.
Law and Analysis
BP moves for summary judgment on the grounds that the Plaintiff
cannot prove that exposure to oil or dispersants was the legal
cause of his alleged injuries. BP argues that the Plaintiff cannot
do so because he has produced no expert testimony to support his
claims, and in a toxic tort case such as this, expert testimony as
to causation is required.
Having filed no opposition, the Plaintiff provides no response to
this argument. However, a motion for summary judgment cannot be
granted simply because there is no opposition, District Judge Jane
Triche Milazzo notes. The movant has the burden of establishing the
absence of a genuine issue of material fact and, unless he has done
so, the court may not grant the motion, regardless of whether any
response was filed.
The Plaintiff has the burden of proving causation, Judge Milazzo
holds. "B3 plaintiffs must prove that the legal cause of the
claimed injury or illness is exposure to oil or other chemicals
used during the response," Judge Milazzo explains, citing In Re:
Oil Spill, No. 10-md-02179, R. Doc. 26924 at 4.
The Plaintiff's deadline for expert disclosures and reports was
Jan. 4, 2022. The Plaintiff neither met this deadline nor moved for
its extension. Additionally, to date, the Plaintiff has failed to
oppose BP's motion or put forth any evidence of causation.
Therefore, the Plaintiff cannot prove a necessary element of his
claims against the Defendants, and his claims must be dismissed,
Judge Milazzo concludes.
Conclusion
For these reasons, BP's Motion for Summary Judgment, joined by all
Defendants, is granted, and this case is dismissed with prejudice.
A full-text copy of the Court's Order and Reasons dated March 31,
2022, is available at https://tinyurl.com/yefx5c2k from
Leagle.com.
BP EXPLORATION: Wins in Part Summary Judgment in Torres-Lugo Suit
-----------------------------------------------------------------
In the case, CARLOS TORRES-LUGO v. BP EXPLORATION & PRODUCTION
INC., ET AL., SECTION: "A" (5), Civil Action No. 20-210 (E.D. La.),
Judge Jay A. Zainey of the U.S. District Court for the Eastern
District of Louisiana issued an Order and Reasons granting in part
and denying in part:
1. the Motion for Summary Judgment filed by Defendants BP
Exploration & Production, Inc. and BP America Production
Co. (collectively "BP"); and
2. their Omnibus Motion in Limine.
The Plaintiff, Torres-Lugo, worked as a front-line oil cleanup
worker in the aftermath of the Deepwater Horizon oil spill in the
Gulf of Mexico. Torres-Lugo is a member of the class governed by
the Medical Benefits Class Action Settlement Agreement ("the MSA")
filed in the Deepwater Horizon Oil Spill Litigation, MDL 2179.
Torres-Lugo claims to have been diagnosed with pneumonia,
bronchitis, sinus infection, and wheezing as a result of the
cleanup work that he performed. In accordance with the procedure
outlined in the MSA, the Claims Administrator authorized
Torres-Lugo to file suit for these specific conditions.
On Nov. 23, 2021, the Court granted BP's motion for partial summary
judgment as to any claim premised on asthma because this condition
was not submitted to the claims administrator. It explained that
Torres-Lugo could not expand the scope of the claims for which he
was authorized to file suit via his expert's report. Thus,
following that ruling, the Plaintiff has four conditions at issue
in the case: Pneumonia, bronchitis, sinus infection and wheezing.
Trial has been continued in the case, which is a nonjury matter. A
status conference with the Court was set for April 13, 2022, at
which time a new date for the bench trial will be selected.
The Court also notes that Magistrate Judge North has before him a
motion to compel BP's 30(b)(6) deposition.
In the motion for summary judgment, BP argues that none of the
Plaintiff's four conditions (pneumonia, bronchitis, sinus infection
and wheezing) qualify as a Later Manifested Physical Condition
("LMPC") as required by the MSA. BP identifies three aspects of an
LMPC: 1) a physical condition, 2) resulting from spill-related
exposure, 3) that was first diagnosed after April 16, 2012.
BP argues that the Plaintiff cannot create an issue of fact that
his pneumonia resulted from the Deepwater Horizon incident because
his own expert opined that he could not establish a connection
between the Plaintiff's pneumonia and his exposures. This
contention is well-supported by the record evidence and the
Plaintiff did not address it in his opposition. BP's motion for
summary judgment is therefore granted as to pneumonia.
Regarding the Plaintiff's claims for bronchitis and sinus
infection, BP argues that those conditions fail as LMPCs because
the Plaintiff was diagnosed with those conditions before April 16,
2012. In his opposition, the Plaintiff points out that he was
diagnosed with acute versions of these illnesses prior to April 16,
2012, but his diagnosis for chronic versions of these illnesses,
which is what the case is about, occurred after this date.
Regarding the Plaintiff's claim predicated on wheezing, BP argues
that since wheezing is not a disease (as acknowledged by Dr. Cook)
it cannot be a "physical condition," a term not defined in the
MSA.
Judge Zainey holds that the Plaintiff's arguments in his opposition
pertaining to bronchitis, sinus infection, and wheezing persuade
him that summary judgment should be denied and these claims,
including whether the conditions qualify as LMPCs, should be
determined at trial. BP's motion for summary judgment is therefore
denied as to the conditions of bronchitis, sinus infection and
wheezing.
As to BP's omnibus motion in limine, Judge Zainey reminds both
parties that the case is not being tried to a jury. But while he is
not concerned with undue prejudice being a factor in admitting some
of the items listed in the omnibus motion, he is concerned with
wasting time by having the Plaintiff (or any party) present
evidence that may not have a sufficient connection to the issues
being tried. Judge Zainey will not hesitate to shut down a
witness's testimony if he determines that it is proving to be
irrelevant to any issue being tried.
But given that the case will be the first BELO case to be tried in
this section, he is hesitant to exclude in limine any of the
evidence listed in the omnibus motion. And since this is not a jury
case, there is very little benefit to doing so. Judge zainey does
note, however, that the Plaintiff concedes that Item no. 8,
references to the Claims Administrator's Approval of the LMPCs and
Notice of Intent to Sue, is inadmissible so the motion in limine
will be granted as to this item.
Accordingly, Judge Zainey granted in part and denied in part both
BP's Motion for Summary Judgment and Omnibus Motion in Limine.
A full-text copy of the Court's April 1, 2022 Order & Reasons is
available at https://tinyurl.com/ycy4mc46 from Leagle.com.
CALVERT'S EXPRESS: Court Issues Protective Order in Heitzman Suit
-----------------------------------------------------------------
In the case, JEREMY HEITZMAN, Plaintiff v. CALVERT'S EXPRESS AUTO
SERVICE & TIRE, LLC, Defendant, Case No. 22-2001-JAR-ADM (D. Kan.),
Magistrate Judge Angel D. Mitchell of the U.S. District Court for
the District of Kansas granted the parties' Joint Motion for
Protective Order.
The parties agree that it may be necessary during discovery to
disclose certain confidential information relating to the subject
matter of the action. They agree that certain categories of such
information should be treated as confidential, protected from
disclosure outside this litigation, and used only for purposes of
prosecuting or defending this action and any appeals. The parties
jointly move for the entry of a protective order to limit the
disclosure, dissemination, and use of certain identified categories
of confidential information.
For good cause shown under Fed. R. Civ. P. 26(c), Judge Mitchell
granted the parties' Joint Motion for Protective Order and entered
the protective order.
All documents and materials produced in discovery, including
initial disclosures, discovery responses, deposition testimony and
exhibits, and information derived directly therefrom, are subject
to the Order concerning Confidential Information. As there is a
presumption in favor of open and public judicial proceedings in the
federal courts, the Order will be strictly construed in favor of
public disclosure and open proceedings wherever possible.
As used in the Order, "Confidential Information" is defined as
information that the producing party designates in good faith has
been previously maintained in a confidential manner and should be
protected from disclosure and use outside the litigation because
its disclosure and use are restricted by statute or could
potentially cause harm to the interests of the disclosing party or
nonparties.
For purposes of the Order, the parties will limit their designation
of "Confidential Information" to the following categories of
information or documents: (a) all employment records,
pay/compensation/work records, and other personal financial
information of the Plaintiff and members of the putative
collective/class action; and (b) any non-public proprietary or
confidential business records of Defendant regarding company
financial information or policies and practices, the disclosure of
which could result in competitive or economic harm to the
Defendant. Information or documents that are available to the
public may not be designated as Confidential Information.
The parties must take reasonable efforts to prevent unauthorized or
inadvertent disclosure of documents designated as containing
Confidential Information. The counsel for the parties must maintain
a record of those persons, including employees of counsel, who have
reviewed or been given access to the documents, along with the
originals of the forms signed by those persons acknowledging their
obligations under the Order.
Nothing in the Order will be construed to affect the use of any
document, material, or information at any trial or hearing. A party
that intends to present or anticipates that another party may
present Confidential Information at a hearing or trial must bring
that issue to the attention of the Court and the other parties
without disclosing the Confidential Information. The Court may
thereafter make such orders as are necessary to govern the use of
such documents or information at the hearing or trial.
Even after the final disposition of the case, a party or any other
person with standing concerning the subject matter may file a
motion to seek leave to reopen the case for the limited purpose of
enforcing or modifying the provisions of the Order.
The Order will take effect when entered and is binding upon all
counsel of record and their law firms, the parties, and persons
made subject to the Order by its terms.
The parties agree to extend the provisions of the Protective Order
to Confidential Information produced in the case by third parties,
if timely requested by the third party.
Whether inadvertent or otherwise, the disclosure or production of
any information or document that is subject to an objection based
on attorney-client privilege or work-product protection, will not
be deemed to waive a party's claim to its privileged or protected
nature or estop that party or the privilege holder from designating
the information or document as attorney-client privileged or
subject to the work-product doctrine at a later date.
A full-text copy of the Court's April 1, 2022 Protective Order is
available at https://tinyurl.com/mwp9c5sv from Leagle.com.
CELSIUS HOLDINGS: Rosen Law Firm Reminds of May 16 Deadline
-----------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, reminds
purchasers of the securities of Celsius Holdings, Inc. (NASDAQ:
CELH) between August 12, 2021 and March 1, 2022, inclusive (the
"Class Period"), of the important May 16, 2022 lead plaintiff
deadline.
SO WHAT: If you purchased Celsius securities during the Class
Period you may be entitled to compensation without payment of any
out of pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the Celsius class action, go to
https://rosenlegal.com/submit-form/?case_id=4162 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than May 16, 2022. A
lead plaintiff is a representative party acting on behalf of other
class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources, or
any meaningful peer recognition. Many of these firms do not
actually handle securities class actions, but are merely middlemen
that refer clients or partner with law firms that actually litigate
the cases. Be wise in selecting counsel. The Rosen Law Firm
represents investors throughout the globe, concentrating its
practice in securities class actions and shareholder derivative
litigation. Rosen Law Firm has achieved the largest ever securities
class action settlement against a Chinese Company. Rosen Law Firm
was Ranked No. 1 by ISS Securities Class Action Services for number
of securities class action settlements in 2017. The firm has been
ranked in the top 4 each year since 2013 and has recovered hundreds
of millions of dollars for investors. In 2019 alone the firm
secured over $438 million for investors. In 2020, founding partner
Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar.
Many of the firm's attorneys have been recognized by Lawdragon and
Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) Celsius had improperly recorded
expenses for non-cash share-based compensation for second and third
quarters of 2021; (2) as a result, Celsius's financial statements
for those periods would be restated, including to report a net loss
for the third quarter of 2021; (3) there was a material weakness in
Celsius's internal controls over financial reporting; and (4) as a
result of the foregoing, defendants' positive statements about
Celsius's business, operations, and prospects were materially
misleading and/or lacked a reasonable basis. When the true details
entered the market, the lawsuit claims that investors suffered
damages.
To join the Celsius class action, go to
https://rosenlegal.com/submit-form/?case_id=4162 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contacts:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
CIOX HEALTH: Gordon & Centracchio Suit Removed to N.D. Illinois
---------------------------------------------------------------
The case captioned Gordon & Centracchio LLC, on behalf of itself
and all others similarly situated v. CIOX HEALTH, was removed from
the Circuit Court of the Circuit Court of Cook County, Illinois, to
the United States District Court for the Northern District of
Illinois on April 4, 2022, and assigned Case No. 1:22-cv-01718.
The Plaintiff filed its Complaint alleging that CIOX overcharged
individuals and entities for providing copies of patient medical
records. The Plaintiff purports to assert five causes of action
for: declaratory judgment; violation of the Illinois Consumer Fraud
and Deceptive Practices Act; breach of contract and the covenant of
good faith and fair dealing; conversion/misappropriation; and
unjust enrichment.[BN]
The Plaintiff is represented by:
Kyle Shamberg, Esq.
Katrina Carroll, Esq.
Nicholas R. Lange, Esq.
LYNCH CARPENTER, LLP
111 W. Washington, Suite 1240
Chicago, IL 60602
Email: kyle@lcllp.com
katrina@lcllp.com
nickl@lcllp.com
The Defendant is represented by:
Lauren J. Caisman, Esq.
BRYAN CAVE LEIGHTON PAISNER LLP
161 North Clark Street, Suite 4300
Chicago, IL 60601-3315
Phone: 312-602-5079
Fax: 312-602-5050
Email: lauren.caisman@bclplaw.com
- and -
Jay P. Lefkowitz, Esq.
Gilad Bendheim, Esq.
KIRKLAND & ELLIS LLP
601 Lexington Avenue
New York, New York 10022
DIRECT ENERGY: Court Enters Final Judgment in Stanley Class Suit
----------------------------------------------------------------
In the case, LINDA STANLEY, Plaintiff v. DIRECT ENERGY SERVICES,
LLC, Defendant, Civil Action Case No: 7:19-cv-03759-KMK (S.D.N.Y.),
Judge Kenneth M. Karas of the U.S. District Court for the Southern
District of New York granted the Plaintiff's Uncontested Motion for
Final Approval of Class Action Settlement and Uncontested Motion
for Attorneys' Fees, Expenses, and Service Award.
The case is before the Court on the Plaintiff's Uncontested Motions
for Final Approval and for Attorneys' Fees, Expenses, and Service
Award. Due and adequate notice have been given to the Settlement
Class.
Judge Karas has considered the Settlement Agreement and reviewed
the record in the litigation. For purposes of the Final Judgment
and Dismissal, he adopted all defined terms as set forth in the
Settlement Agreement filed in the case.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and
for purposes of and solely in connection with the Settlement, Judge
Karas certified the action as a class action on behalf of the
following Settlement Class: "All Persons who were legacy NYSEG
Solutions, LLC (NYSEG Solutions) and Energetix, Inc. (Energetix)
residential electricity customers whose accounts were acquired by
Direct Energy Services, LLC (Direct Energy), who transitioned from
a fixed rate to a variable rate, and who paid Direct Energy at
least one variable-rate charge for residential electricity supply
service on or after April 1, 2013. The applicable statute of
limitations period begins on April 1, 2013 and continues through
the date of the Preliminary Approval Order, Nov. 16, 2021."
Judge Karas approved the Settlement (as set forth in the Settlement
Agreement), the Releases, and all other terms in the Settlement
Agreement, as fair, just, reasonable and adequate as to the
Releasing Parties. The Parties are directed to perform in
accordance with the terms set forth in the Settlement Agreement.
However, without seeking further Court approval, the Parties may
jointly agree to make changes to the Settlement Agreement.
By the Judgment, the Releasing Parties will be deemed to have (and
by operation of the Judgment will have) fully, finally, and forever
released, relinquished and discharged all Released Claims against
the Released Persons.
The action is dismissed with prejudice. The Parties are to bear
their own attorney's fees and costs, except as otherwise expressly
provided in the Settlement Agreement and in the Judgment.
Upon consideration of the Plaintiff's Uncontested Motion for
Attorneys' Fees, Expenses, and Service Award, Judge Karas granted
the motion. Consistent with Section 8.2 of the Settlement
Agreement, the Defendants will pay the Class Counsel $2.25 million
in attorneys' fees and costs, consistent with the terms of the
Settlement Agreement. Per the Settlement Agreement, the award will
be paid separate and apart from the amounts received by members of
the Settling Class.
Upon consideration of the Class Counsel's request for a Plaintiff
Service Award to Ms. Stanley, the request is granted. Consistent
with the terms of Section 8.7 of the Settlement Agreement, the
Defendant will pay Ms. Stanley a Service Award in the amount of
$5,000. Per the Settlement Agreement, the Service Award will be
paid separate and apart from the amounts received by members of the
Settling Class.
Within 120 days from the Effective Date, the Settlement
Administrator will destroy all personally identifying information
about any Class Member in its possession, custody, or control,
including (but not limited to) any list that the Settlement
Administrator received from Defendant in connection with the
Settlement Administrator's efforts to provide Notice to Class
Members.
The document is a final, appealable order, and will constitute a
judgment for purposes of Rules 54 and 58 of the Federal Rules of
Civil Procedure. By incorporating the Settlement Agreement's terms
therein, Judge Karas determined that the Final Judgment complied in
all respect with Federal Rule of Civil Procedure 65(d)(1).
The Clerk of Court is directed to close the case.
A full-text copy of the Court's April 5, 2022 Final Judgment &
Dismissal is available at https://tinyurl.com/2p9aaeps from
Leagle.com.
DIRECT GENERAL: Stephens Suit Removed to N.D. Georgia
-----------------------------------------------------
The case styled as Kelvin Stephens, on behalf of himself and on
behalf of all others similarly situated as defined herein v. Direct
General Insurance Company, Direct General Insurance Agency, Inc.,
Case No. 22A015859, was removed from the Superior Court of Gwinnett
County, to the U.S. District Court for the Northern District of
Georgia on April 1, 2022.
The District Court Clerk assigned Case No. 1:22-cv-01302-TWT to the
proceeding.
The nature of suit is stated as Insurance Contract.
Direct General Insurance Company -- https://www.directauto.com/ --
operates as an insurance firm. The Company offers property and
casualty insurance services.[BN]
The Plaintiff is represented by:
A. Danielle McBride, Esq.
LOBER & DOBSON, LLC
830 Mulberry Street, Suite 201
Macon, GA 31201
Phone: (478) 745-7700
Fax: (478) 745-4888
Email: admcbride@lddlawyers.com
- and -
Michael Jordan Lober, Esq.
LOBER & DOBSON, LLC
1197 Canton Street
Roswell, GA 30075
Phone: (770) 741-0700
Email: mjlober@lddlawyers.com
- and -
Robert Brent Irby, Esq.
MCCALLUM, HOAGLUND, COOK & IRBY, LLP
905 Montgomery Highway, Suite 201
Vestavia Hills, AL 35216
Phone: (205) 824-7767
Fax: (205) 824-7768
Email: brent@irbylaw.net
- and -
Todd L. Lord, Esq.
LAW OFFICE OF TODD L. LORD
P.O. Box 901
4 Courthouse Square
Cleveland, GA 30528
Phone: (706) 219-2239
Email: attytllord@windstream.net
- and -
William Gregory Dobson, Esq.
WILLIAM GREGORY DOBSON PC
1040 Fort Stephenson Road
Lookout Mountain, GA 30750
Phone: (478) 745-7700
Fax: (478) 745-4888
Email: wgd@lddlawyers.com
The Defendants are represented by:
Jeffrey Allen Zachman, Esq.
DENTONS US, LLP - ATL
303 Peachtree St., N.E., Suite 5300
Atlanta, GA 30308
Phone: (404) 527-4671
Email: jeffrey.zachman@dentons.com
DISTRICT OF COLUMBIA: Partly Wins Bid to Waive Penalties in Salazar
-------------------------------------------------------------------
In the lawsuit titled OSCAR SALAZAR, by his parents and next
friends, on behalf of himself and all others similarly situated,
Plaintiffs v. THE DISTRICT OF COLUMBIA, et al., Defendants, Case
No. 93-cv-452 (TSC) (D.D.C.), the U.S. District Court for the
District of Columbia grants in part and denies in part the District
of Columbia's Motion to Modify the Settlement Order to Waive
Financial Penalties on Managed Care Organizations for Fiscal Year
2020
Background
The Plaintiffs filed the class action lawsuit in 1993 against the
District of Columbia, "principally alleging that the District's
administration of its Medicaid program violated the Medicaid
statute, its implementing regulations, District of Columbia law,
and the United States Constitution." After a jury trial, final
judgment and an appeal, the parties reached an agreement in 1999,
after which the court approved a Settlement Order ("Order"), over
which the court retained jurisdiction "to make any necessary orders
enforcing or construing" the agreement.
The only remaining requirement under the Order is the District's
obligation to "provide or arrange for the provision of early and
periodic screening, diagnostic and treatment services (EPSDT) when
they are requested by or on behalf of children" under twenty-one
years old. A key component of the EPSDT benefit is the well-child
visit a periodic health screening that includes a physical exam,
immunizations, health and developmental health history review, and
laboratory tests, when appropriate.
The EPSDT benefit also includes vision services, dental services,
hearing services, and such other necessary health care, diagnostic
services, treatment, and other measures to correct or ameliorate
defects and physical and mental illness and conditions discovered
by screening services, whether or not such services are covered
under the State plan.
The District provides these services through Managed Care
Organizations (MCOs) which must: 1) "provide each EPSDT screen,
laboratory test and immunization within sixty (60) days of its due
date, based on the child's age"; and 2) "meet an 80% participant
ratio" each fiscal year for all children enrolled in the MCO. This
"ratio is calculated by dividing the number of Medicaid-eligible
children who received at least one initial or periodic screening
service in a given year by the number of Medicaid-eligible children
who should have received at least one initial or periodic screening
service in that year."
If a MCO participant ratio falls below 80%, it must develop and
implement a corrective action plan. Should the ratio fall below
75%, the MCO must pay the District at least "$45 for each enrollee
that is required to be added to the numerator in the MCO's EPSDT
participant ratio to meet the 80% requirement." The Order requires
the District to enforce this penalty provision.
In fiscal year (FY) 2019, the year before the onset of the COVID
pandemic, the District's participant ratio was 63%, four points
above the national average of 59%. Its participant ratio had been
above the national average since FY 2015.
On March 11, 2020, at the onset of the COVID pandemic, the
District's Mayor issued a "Declaration of Public Emergency and a
Declaration of Public Health Emergency," and later a stay-at-home
order. Although the District and the MCOs worked together to offer
new programs and strategies to address the COVID crisis and help
ensure that enrollees had the greatest possible access to EPSDT
Services, unsurprisingly, health care visits declined. For example,
MCO CareFirst reported 2,041 fewer EPSDT appointments from March to
September 2020, compared to the same time period the previous year.
The impact was most dramatic in April 2020, when CareFirst reported
83 EPSDT appointments, compared with 666 in April 2019. In May
2019, it reported 794 appointments, compared to 167 in May 2020.
The District's overall participant ratio for FY 2020 was 50%. It
asks this Court to modify the Order to waive the financial
penalties as suitably tailored to address the changed
circumstances, arguing that the COVID pandemic presented unforeseen
and changed circumstances that justify relief from the penalty
provision of the Order.
Analysis
The District contends that the proposed modification will not
prejudice the Plaintiffs because the penalties are paid directly to
the District, not the Plaintiffs, and the waiver request applies
only to the penalties for FY 2020.
The Plaintiffs agree that the COVID pandemic constituted a
significant change in circumstances but disagree that relief from
the penalty provision is warranted. They first argue that the
District has not shown that waiving the penalties is in the public
interest. The Plaintiffs argue that the District has failed to show
the MCOs will be harmed absent the waiver because the MCOs are paid
an upfront stipulated amount for each enrollee and those payments
appear to have already been made.
Citing American Council of the Blind v. Mnuchin, 878 F.3d 360, 368
(D.C. Cir. 2017), the Plaintiffs also argue that, while a court may
consider costs to a third party when evaluating the public interest
under Rule 60(b)(5), "there must be adequate evidentiary support
for the cited costs."
But American Council does not stand for the proposition the
Plaintiffs claim it does, District Judge Tanya S. Chutkan notes.
One of the issues in that case was whether the costs of the
proposed modification outweighed the cost to the party opposing the
modification. By contrast, the issue here is whether it would be
equitable to modify the Order by waiving a penalty. Thus, the
Plaintiffs' singular focus on costs is a red herring. Moreover, a
district court may grant relief from a judgment due to changed
circumstances where applying the judgment "prospectively is no
longer equitable" or where "any other reason justifies relief."
The Plaintiffs also contend that the penalties will not harm the
MCOs because they are purportedly receiving overpayments as a
result of the COVID pandemic--the Plaintiffs claim the MCOs'
profits have increased because they receive their stipulated per
enrollee payments but have fewer EPSDT appointments. The Plaintiffs
provide no evidentiary support for this argument, nor do they
explain what legal authority supports denying relief on this basis,
Judge Chutkan opines.
The Plaintiffs next argue that any new programs and strategies the
MCOs implemented during the COVID pandemic were no different than
pre-pandemic activities or were implemented in a limited and much
delayed fashion. Consequently, they argue, the MCOs' efforts were
not nearly as extensive or timely as the District claims they
were.
Whether or not the Court credits this interpretation of the
evidence, Judge Chutkan points out that the Plaintiffs have not
explained how or why the timing or extent of the MCOs' programs
affects whether it would be equitable to assess penalties for
significantly reduced participant ratios during a global pandemic.
Next, the Plaintiffs appear to argue that the requested relief
assumes that the MCOs maintained the requisite 80% participant
ratios prior to the pandemic, and the pandemic caused the
subsequent decline. The Plaintiffs point out that only one of the
current MCOs--the one with the smallest number of enrollees and
which shares its losses with the District--met the required
participant ratio in the two years prior to FY 2020. The Plaintiffs
further argue that any relief under Rule 60(b)(5) should be
tailored to the circumstances, and thus only a partial waiver based
on a 75% participant ratio cap, rather than an 80% cap, is
warranted.
The District counters that the Plaintiffs provide no explanation
for why their proposed 75% cap constitutes an appropriately
tailored modification. The Court agrees that the Plaintiffs have
not explained why a cap of 75% instead of 80% is sufficiently
tailored to the changed circumstances. However, the Court is
persuaded by the Plaintiffs' argument that the penalties should be
reduced, rather than waived, particularly where even prior to the
pandemic the participant ratios were consistently below what the
Order requires.
In addition, using MCO performance prior to the pandemic would
provide an appropriate and equitable benchmark from which to
calculate penalties, Judge Chutkan states. Thus, for each MCO, its
penalty will be determined by calculating the difference between
the required 80% benchmark and the average participant ratio for
the FY17 through FY19 reporting period. Therefore, if the MCO had a
participant ratio of 40% for FY20, but an average 55% participant
ratio from FY17 through FY19, then its FY20 penalty shall be
calculated based on the difference between the 55% percent ratio
and 80% benchmark. This result equitably protects the interests of
the MCOs, while suitably tailoring the proposed modification to the
changed circumstances.
Conclusion
For the reasons set forth, the Court will enter a separate order
granting the District's motion in part and denying the motion in
part.
A full-text copy of the Court's Memorandum Opinion dated March 31,
2022, is available at https://tinyurl.com/2p93u35d from
Leagle.com.
ECLIPSE SENIOR: Court Stays Taylor Class Suit Pending Arbitration
-----------------------------------------------------------------
In the case, JENNIFER JANET TAYLOR, individually and on behalf of
all others similarly situated, Plaintiff v. ECLIPSE SENIOR LIVING,
INC.; ECLIPSE PORTFOLIO OPERATIONS LLC; and EC OPCO CA PARTNER V
LLC, Defendants, Case No. 20cv190-LAB (WVG) (S.D. Cal.), Judge
Larry Alan Burns of the U.S. District Court for the Southern
District of California granted the Defendant's motion to compel
arbitration and stayed the case pending arbitration.
I. Introduction
In response to a putative class action filed by Plaintiff Taylor
and the subsequent amendment to her complaint, Defendants Eclipse
Senior Living and Eclipse Portfolio (collectively, "Eclipse"), as
well as Defendant EC Opco, filed a renewed motion to compel Taylor
to arbitrate her claims on an individual basis per the binding
arbitration agreement to which she allegedly is subject. Taylor
opposes the motion, arguing against the validity and enforcement of
the agreement's arbitration provision.
II. Background
In February 2019, the Defendants hired Taylor as a nurse at their
senior living facility located in La Mesa, California. Upon hiring,
Taylor was provided with an employee handbook, which included in
part a meal period policy, overtime protocol, and a six-paragraph
Associate Acknowledgement and Agreement. The Agreement between
Taylor and "the Company" (defined as "Elmcroft Senior Living"),
which contains an arbitration provision, was signed by Taylor on
Feb. 11, 2019.
Ms. Taylor was employed at Eclipse until approximately September
2019 when she resigned. Taylor then brought the putative class
action against the Defendants, alleging that she had been denied
compensation for time worked, including working through meal breaks
and performing "off-the-clock" work. She asserts ten causes of
action under the Fair Labor Standards Act, California Labor Code,
and California Business and Professions Code.
III. Discussion
The Defendants argue that Taylor is subject to a binding
arbitration provision contained in the Agreement she signed when
she was first hired as a nurse at Grossmont Gardens. They claim
that the Agreement is valid and enforceable under the FAA and
California law, and as such, Taylor must submit any claims arising
out of her employment for resolution by mandatory binding
arbitration on an individual basis.
In response, Taylor first argues that she received the Agreement
(contained in the Employee Handbook) and the accompanying
Attestation Page separately, and that because the latter page
allegedly did not reference any arbitration agreement, she did not
consent to -- and should not be bound by -- the relevant
arbitration provisions currently at issue. Taylor first argues that
she received the Agreement and the accompanying Attestation Page
separately, and that because the latter page allegedly did not
reference any arbitration agreement, she did not consent to -- and
should not be bound by -- the relevant arbitration provisions
currently at issue. Taylor next argues that, even where the
Defendants could show the existence of a valid arbitration
agreement, the Agreement was only between Taylor and "Elmcroft
Senior Living," not the Defendants, and Defendants are therefore
precluded from enforcing the Agreement against her. Finally, Taylor
claims that the arbitration provision is unconscionable and
unenforceable.
Judge Burns holds that (i) Taylor's failure to read or understand
the terms to which she agreed is "legally irrelevant" and does not
invalidate her written assent to the contract; (ii) Taylor cannot
plausibly claim that she was not given sufficient notice of the
arbitration terms; (iii) Taylor cannot now escape the contract by
suing non-signatories to the Agreement when the claims against the
non-signatory Defendants are "intimately founded in and intertwined
with" Taylor's Agreement with "Elmcroft Senior Living"; (iv) Taylor
was not presented with a contract of adhesion and thus there can be
no procedural unconscionability where Taylor was provided with the
opportunity to opt out of the arbitration provision and she
deliberately chose not to do so; and (v) beyond a conclusory
statement otherwise, Taylor fails to explain why thie provision was
illusory or why the implied covenant of good faith and fair dealing
does not apply.
Because Taylor consented to the arbitration provisions and it's
neither procedurally nor substantively unconscionable, the
Agreement is valid and enforceable.
IV. Conclusion
For these reasons, Judge Burns granted the Defendant's motion to
compel arbitration and stay the case pending arbitration.
A full-text copy of the Court's April 1, 2022 Amended Order is
available at https://tinyurl.com/2wskebch from Leagle.com.
EMBARK TECHNOLOGY: Kaskela Law Announces Shareholder Class Action
-----------------------------------------------------------------
Kaskela Law LLC on April 16 disclosed that a shareholder class
action lawsuit has been filed against Embark Technology, Inc.
(NASDAQ: EMBK) f/k/a Northern Genesis Acquisition Corp. II (NYSE:
NGAB) ("Embark" or the "Company") on behalf of investors who
purchased shares of the Company's securities between January 12,
2021 and January 5, 2022, inclusive (the "Class Period").
Embark investors with financial losses in excess of $50,000 are
encouraged to contact Kaskela Law LLC (Adrienne Bell, Esq.) at
(484) 229-0750, or by email at abell@kaskelalaw.com, or online at
https://kaskelalaw.com/cases/embark-technology-inc/ for additional
information about this investigation and their legal rights and
options.
On January 6, 2022, research firm The Bear Cave released a critical
report entitled "Problems at Embark Technology (EMBK)." That report
stated that "Embark appears to lack true economic substance," and
that the "company holds no patents, has only a dozen or so test
trucks, and may be more bark than bite." Following the release of
this report, shares of Embark's common stock fell $1.37 per share,
or nearly 17% in value, to close at $6.81 per share on January 6,
2022.
Kaskela Law LLC represents investors in securities fraud, corporate
governance, and merger & acquisition litigation. For additional
information about the firm please visit www.kaskelalaw.com.
CONTACT:
D. Seamus Kaskela, Esq.
Adrienne Bell, Esq.
KASKELA LAW LLC
18 Campus Blvd., Suite 100
Newtown Square, PA 19073
(888) 715-1740
(484) 229-0750
www.kaskelalaw.com [GN]
EMBARK TECHNOLOGY: Rosen Law Firm Reminds of May 31 Deadline
------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, reminds
purchasers of the securities of Embark Technology, Inc. f/k/a
Northern Genesis Acquisition Corp. II (NASDAQ: EMBK, EMBKW, NGAB,
NGAB.U, NGAB.WS) between January 12, 2021 and January 5, 2022,
inclusive (the "Class Period"), of the important May 31, 2022 lead
plaintiff deadline.
SO WHAT: If you purchased Embark securities during the Class Period
you may be entitled to compensation without payment of any out of
pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the Embark class action, go to
https://rosenlegal.com/submit-form/?case_id=4934 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than May 31, 2022. A
lead plaintiff is a representative party acting on behalf of other
class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Many of these firms do not actually
handle securities class actions, but are merely middlemen that
refer clients or partner with law firms that actually litigate the
cases. Be wise in selecting counsel. The Rosen Law Firm represents
investors throughout the globe, concentrating its practice in
securities class actions and shareholder derivative litigation.
Rosen Law Firm has achieved the largest ever securities class
action settlement against a Chinese Company. Rosen Law Firm was
Ranked No. 1 by ISS Securities Class Action Services for number of
securities class action settlements in 2017. The firm has been
ranked in the top 4 each year since 2013 and has recovered hundreds
of millions of dollars for investors. In 2019 alone the firm
secured over $438 million for investors. In 2020, founding partner
Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar.
Many of the firm's attorneys have been recognized by Lawdragon and
Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) Embark had performed inadequate
due diligence into Embark Trucks Inc. ("Legacy Embark"); (2) Legacy
Embark and the Company, following the November 2021 merger of
Legacy Embark and Northern Genesis Acquisition Corp. II (the
"Business Combination"), held no patents and an insignificant
number of test trucks; (3) accordingly, Embark had overstated its
operational and technological capabilities; (4) as a result of all
the foregoing, Embark had overstated the business and financial
prospects of the Company post-Business Combination; and (5) as a
result, defendants' public statements were materially false and
misleading at all relevant times. When the true details entered the
market, the lawsuit claims that investors suffered damages.
To join the Embark class action, go to
https://rosenlegal.com/submit-form/?case_id=4934 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome. [GN]
EMONEYUSA HOLDINGS: Haas Files FCRA Suit in W.D. Wisconsin
----------------------------------------------------------
A class action lawsuit has been filed against eMoneyUSA Holdings
LLC. The case is styled as Sarah Haas, on behalf of herself and
all others similarly situated v. eMoneyUSA Holdings LLC, Case No.
3:22-cv-00212 (W.D. Wis., April 13, 2022).
The lawsuit is brought over alleged violation of the Fair Credit
Reporting Act.
eMoneyUSA -- https://emoneyusa.com/ -- is a licensed installment
lender that has been in business since 2013.[BN]
The Plaintiff is represented by:
Eric Leighton Crandall, Esq.
CRANDALL LAW FIRM, SC
421 West Second Street, PO Box 27
New Richmond, WI 54017
Phone: (715) 246-3793
Email: wisconsinconsumerlaw@frontier.com
- and -
Thomas John Lyons, Jr., Esq.
CONSUMER JUSTICE CENTER, P.A.
367 Commerce Court
Vadnais Heights, MN 55127
Phone: (651) 770-9707
Email: tommy@consumerjusticecenter.com
EVERBRIDGE INC: Rosen Law Firm Reminds of June 3 Deadline
---------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, reminds
purchasers of the securities of Everbridge, Inc. (NASDAQ: EVBG)
between November 4, 2019 and February 24, 2022, inclusive (the
"Class Period") of the important June 3, 2022 lead plaintiff
deadline.
SO WHAT: If you purchased Everbridge securities during the Class
Period you may be entitled to compensation without payment of any
out of pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the Everbridge class action, go to
https://rosenlegal.com/submit-form/?case_id=3095 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than June 3, 2022. A
lead plaintiff is a representative party acting on behalf of other
class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Many of these firms do not actually
handle securities class actions, but are merely middlemen that
refer clients or partner with law firms that actually litigate the
cases. Be wise in selecting counsel. The Rosen Law Firm represents
investors throughout the globe, concentrating its practice in
securities class actions and shareholder derivative litigation.
Rosen Law Firm has achieved the largest ever securities class
action settlement against a Chinese Company. Rosen Law Firm was
Ranked No. 1 by ISS Securities Class Action Services for number of
securities class action settlements in 2017. The firm has been
ranked in the top 4 each year since 2013 and has recovered hundreds
of millions of dollars for investors. In 2019 alone the firm
secured over $438 million for investors. In 2020, founding partner
Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar.
Many of the firm's attorneys have been recognized by Lawdragon and
Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) Everbridge was experiencing
integration problems with respect to its acquiring nine separate
companies; (2) Everbridge was using the revenues from these
acquisitions to mask increasingly stagnant organic growth; and (3)
Everbridge was failing to disclose that the COVID-19 pandemic was
having a material impact on the size of the deals that Everbridge
was able to obtain, with a negative effect on the Company's revenue
growth. When the true details entered the market, the lawsuit
claims that investors suffered damages.
To join the Everbridge class action, go to
https://rosenlegal.com/submit-form/?case_id=3095 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contacts
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
EVERGREEN PACKAGING: Faces Wallace Suit Over Unpaid OT Wages
------------------------------------------------------------
TAIWAN WALLACE, ROGER DAVIS, MICHAEL STURDIVANT, GLEN FLOYD, EMILY
COLSON, BRODERICK BURNETT and BRIDGETTE TATE, individually and on
behalf of all others similarly situated, Plaintiff v. EVERGREEN
PACKAGING, LLC, Defendant, Case No. 4:22-cv-00337-KGB (E.D. Ark.,
April 12, 2022) is a collective action brought by Plaintiffs, each
individually and on behalf of all others similarly situated,
against Defendant for violations of the overtime provisions of the
Fair Labor Standards Act and the Arkansas Minimum Wage Act.
The Plaintiffs were employed by the Defendant as production workers
within the three years preceding the filing of this lawsuit.
Evergreen Packaging, LLC owns and operates a paper mill in
Jefferson County, Arkansas.[BN]
The Plaintiff is represented by:
Daniel Ford, Esq.
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Pkwy, Suite 510
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
E-mail: daniel@sanfordlawfirm.com
josh@sanfordlawfirm.com
FAT BRANDS: Bragar Eagel & Squire Reminds of May 17 Deadline
------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized shareholder
rights law firm, reminds investors that class actions have been
commenced on behalf of stockholders of FAT Brands, Inc. (NASDAQ:
FAT), Cano Health, Inc. (NYSE: CANO), Vertiv Holding Co. (NYSE:
VRT), and Homology Medicines, Inc. (NASDAQ: FIXX). Stockholders
have until the deadlines below to petition the court to serve as
lead plaintiff. Additional information about each case can be found
at the link provided.
FAT Brands, Inc. (NASDAQ: FAT)
Class Period: December 4, 2017 - February 18, 2022
Lead Plaintiff Deadline: May 17, 2022
The class action focuses on whether the Company issued false and/or
misleading statements and/or failed to disclose information
pertinent to investors. FAT Brands is the subject of a report
published by the Los Angeles Times on February 19, 2022. According
to the Times, "Federal authorities have been investigating Andrew
Wiederhorn, Chief Executive of the company that owns the Fatburger
and Johnny Rockets restaurant chains, and examining one of his
family member's actions as part of an inquiry into allegations of
securities and wire fraud, money laundering and attempted tax
evasion, court records show."
On this news, FAT Brands' stock fell $2.42, or 22.9%, to close at
$8.14 per share on February 22, 2022, thereby injuring investors.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to
investors: (1) the Company and the Wiederhorns engaged in
transactions "for no legitimate corporate purpose"; (2) the Company
ignored warning signs relating to transactions with the
Wiederhorns; (3) as a result, the Company was likely to face
increased scrutiny, investigations, and other potential issues; (4)
certain executives, who are touted as critical to the Company's
success, were at great risk of scrutiny-potentially, at least in
part, due to the Company's actions; (5) the Company's touted chief
executive officer (CEO) and chief operating officer (COO) were
under investigation regarding transactions with the Company; and
(6) as a result, defendants' public statements were materially
false and/or misleading at all relevant times. When the true
details entered the market, the lawsuit claims that investors
suffered damages.
For more information on the FAT class action go to:
https://bespc.com/cases/FAT
Cano Health, Inc. (NYSE: CANO)
Class Period: May 18, 2020 - February 25, 2022
Lead Plaintiff Deadline: May 17, 2022
On February 28, 2022, Cano Health, Inc., a primary care provider
for seniors and underserved communities, announced that it will
delay the release of Q4 and full year 2021 financials, previously
scheduled for April 17 due to the results of a recent internal
audit. The audit found certain non-cash adjustments related to
revenue recognition that may impact when and how the company
accrues revenue related to Medicare Risk Adjustments.
On this news, Cano's Class A common stock price fell $0.32 per
share, or 6.17%, to close at $4.87 per share on February 28, 2022.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to
investors: (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 ASC 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.
For more information on the Cano class action go to:
https://bespc.com/cases/CANO
Vertiv Holding Co. (NYSE: VRT)
Class Period: April 28, 2021 - February 23, 2022
Lead Plaintiff Deadline: May 23, 2022
On February 23, 2022, at 6:00 a.m. Eastern, Vertiv reported
disappointing financial results, including $0.06 earnings per share
for fourth quarter 2021, missing analyst estimates of $0.28 per
share. Vertiv's Chief Executive Officer attributed the poor results
to management "consistently underestimat[ing] inflation and supply
chain constraints for both timing and degree, which dictated a
tepid 2021 pricing response."
On this news, the Company's stock price fell $7.19, or 37%, to
close at $12.38 per share on February 23, 2022, on unusually heavy
trading volume.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to
investors: (1) that the Company could not adequately respond to
supply chain issues and inflation by increasing its prices; (2)
that, as a result of the increasing costs, Vertiv's earnings would
be adversely impacted; and (3) that, as a result of the foregoing,
Defendants' positive statements about the Company's business,
operations, and prospects were materially misleading and/or lacked
a reasonable basis.
For more information on the Vertiv class action go to:
https://bespc.com/cases/VRT
Homology Medicines, Inc. (NASDAQ: FIXX)
Class Period: June 10, 2019 - February 18, 2022
Lead Plaintiff Deadline: May 24, 2022
Homology, a genetic medicines company, focuses on transforming the
lives of patients suffering from rare genetic diseases. The
Company's lead product candidate is HMI-102, which is in Phase I/II
pheNIX clinical trial, a gene therapy for the treatment of
phenylketonuria (PKU) in adults (the "HMI-102 Trial"). On June 10,
2019, Homology issued a press release announcing that it had
commenced enrollment of the HMI-102 Trial.
The complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operations, and compliance policies.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that: (i) the Company had overstated
HMI-102's efficacy and risk mitigation; (ii) accordingly, it was
unlikely that the Company would be able to commercialize HMI-102 in
its present form; and (iii) as a result, the Company's public
statements were materially false and misleading at all relevant
times.
On July 21, 2020, Mariner Research ("Mariner") published a report
questioning statements by Homology and its officers about the
efficacy of HMI-102, the Company's lead product candidate for
treatment of phenylketonuria. Mariner focused on Homology's HMI-102
dose escalation pheNIX trial, concluding that the Company concealed
data showing HMI-102's lack of efficacy and indicating that the
program was unlikely to proceed to commercialization. Among other
evidence, Mariner cited an email from Homology's Chief
Communications Officer appearing to indicate the Company's
awareness that a HMI-102 high dose patient had adverted to the
adverse efficacy issue in a social media post during April 2020.
On this news, Homology's stock price fell $1.71 per share, or
10.38%, over the following three trading days, closing at $14.77
per share on July 24, 2020.
Then, on February 18, 2022, Homology issued a press release
disclosing that "the U.S. Food and Drug Administration has notified
the company that its pheNIX gene therapy trial of HMI-102 in adults
with phenylketonuria has been placed on clinical hold due to the
need to modify risk mitigation measures in the study in response to
observations of elevated liver function tests" and that "[t]he
Company expects to receive an official clinical hold letter within
30 days."
On this news, Homology's stock price fell $1.26 per share, or
32.64%, to close at $2.60 per share on February 22, 2022.
For more information on the Homology class action go to:
https://bespc.com/cases/FIXX
About Bragar Eagel & Squire, P.C.:
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes.
Contact Information:
Bragar Eagel & Squire, P.C.
Brandon Walker, Esq.
Alexandra B. Raymond, Esq.
(212) 355-4648
investigations@bespc.com
www.bespc.com [GN]
FCA US: Michigan Court Denies Milisits' Bid for Protective Order
----------------------------------------------------------------
In the case, JOSEPH MILISITS, et al., Plaintiffs v. FCA US LLC,
Defendant, Case No. 20-cv-11578 (E.D. Mich.), Judge Matthew F.
Leitman of the U.S. District Court for the Eastern District of
Michigan, Southern Division, denied the Plaintiffs' motion for a
protective order.
I. Background
In the putative class action, the Plaintiffs bring a variety of
statutory and common-law claims against the Defendant arising out
of an alleged safety defect in the transmissions of their FCA
vehicles. The parties are now engaged in discovery, and a dispute
has arisen over how, and where, the Plaintiffs' depositions should
be taken.
The Plaintiffs want the depositions to be conducted virtually due
to ongoing COVID-19 pandemic, or, in the alternative, to take place
in person at a location near where each Plaintiff lives; FCA wants
the depositions to take place in person in the Eastern District of
Michigan, where Plaintiffs filed the action.
On March 7, 2022, the Plaintiffs filed a motion for a protective
order in which they ask the Court to resolve this dispute.
II. Discussion
Judge Leitman has carefully reviewed the Plaintiffs' motion and
concludes that they have not established that there is "good cause"
to conduct the depositions virtually. He respects the Plaintiffs'
concerns about COVID-19, but given the current decrease in case
counts, the availability of vaccinees, booster shots, and
anti-virals, and the lack of evidence presented by the Plaintiffs
regarding the specific medical risks that each particular Plaintiff
may face from an in-person deposition, Judge Leitman is not
persuaded that the Plaintiffs would face an unreasonable risk by
traveling to and appearing for an in-person deposition under the
strict conditions outlined.
Judge Leitman also declines to require FCA to take the depositions
of the Plaintiffs outside of the Eastern District of Michigan
unless Plaintiffs agree to pay the reasonable travel costs for
FCA's counsel to take the deposition(s) elsewhere. The Plaintiffs
chose to file the action in the District, and they have not
persuaded the Court to set aside the "general rule" that "the
proper location of a plaintiff's depositio is in the forum where
the litigation is pending." Thus, the Plaintiffs will either (1)
appear for their depositions in the Eastern District of Michigan or
(2) pay for the reasonable travel costs of FCA's counsel if they
decline to appear for a deposition in the District.
III. Order
Accordingly, for the reasons he explained, Judge Leitman denied the
Plaintiffs' motion for a protective order. However, in light of the
COVID-19 pandemic, he set the following conditions for the
depositions (which the parties must follow unless they come to a
mutual agreement otherwise prior to the deposition of any
Plaintiff):
a. Any deposition of a Plaintiff will not take place for at
least 28 days. That delay will allow any Plaintiff being deposed to
receive a second COVID-19 booster shot (as recently authorized by
the Food and Drug Administration and as reflected in updated
recommendations from the Centers for Disease Control), if he or she
wishes to do so, in sufficient time to have that second booster
take effect;
b. Other than the Plaintiff being deposed, all persons
attending the depositions of the Plaintiffs will be vaccinated
against COVID-19 and have received at least one COVID-19 booster
shot;
c. Attendance at the deposition of any Plaintiff will be
limited to the following individuals: (1) the Plaintiff being
deposed, (2) Two attorneys for the Plaintiff, (3) One paralegal or
legal support person for the Plaintiff's attorneys, (4) Two
attorneys for FCA, (5) One paralegal or legal support person for
FCA's attorneys, (6) a court reporter, and (7) a videographer.
d. The deposition will take place in a conference room that is
large enough to allow the Plaintiff being deposed to maintain a
six-foot social distance from all other individuals in the room
during the deposition.
e. All persons attending the deposition except for the
Plaintiff being deposed will be masked at all times during the
deposition;
f. All persons attending the deposition will review the
questions below before entering the deposition. If the answer to
any of those questions is yes for any participant, then that person
will not attend the deposition:
1. Have you tested positive for COVID-19 within the last
10 days?
2. Within the last 5 days, have you had in-person contact
with anyone who tested positive for COVID-19 in the 10 days before
your contact?
3. Are you currently experiencing, or have you
experienced, the following symptoms that are not attributed to a
known medical condition, in the last 10 days: cough; shortness of
breath or difficulty breathing; muscle or body aches; new loss of
taste or smell; nausea or vomiting?
g. All persons attending the deposition will submit to a
temperature screening upon entering the deposition site. That
screening will be conducted by counsel for the Plaintiff being
deposed and/or a representative designated by counsel for the
Plaintiff.
A full-text copy of the Court's April 1, 2022 Order is available at
https://tinyurl.com/4ndektwr from Leagle.com.
FEI LABS: Shomroni Sues Over Sale of Unregistered Securities
------------------------------------------------------------
Jonathan Shomroni, individually and on behalf of others similarly
situated v. FEI LABS INC., a Delaware Corporation, JOSEPH SANTORO,
an Individual, BRIANNA MONTGOMERY, an Individual, SEBASTIAN
DELGADO, an Individual, and DOES 1-10, Case No. CGC-22-598995 (Cal.
Super. Ct., San Francisco Cty., April 1, 2022), is brought against
the Defendants under the Securities Act of 1933, to redress the
Defendants' offer and sale of digital assets in an unregistered
securities offering that occurred between March 31 and April 3,
2021.
This action seeks to redress Defendants' unregistered offer and
sale of "FEI" and "TRIBE" digital tokenized assets (colloquially
referred to as "crypto") through an initial "Offering" of these
asset described as their "Genesis" Event. With limited exceptions
not applicable here, the Securities Act requires any security that
is offered or sold to be registered with the Securities and
Exchange Commission ("SEC"). These laws are designed to protect the
public by requiring various disclosures so that investors can
better understand the investment product that is being offered or
sold.
The action seeks the remedy of rescission to allow Plaintiff and
the to recover their funds paid in the unregistered offering, and
compensatory damages in favor of Plaintiff and the Class against
all Defendants, jointly and severally, for all damages sustained as
a result of Defendants' unregistered offering, in an amount to be
proven at trial, including pre-judgment and post-judgment interest,
says the complaint.
The Plaintiff transferred 7 ETH, then valued at $2,009.19 per ETH,
for a total value of $14,064.33 to Defendants' Offering for which
he received FEI tokens, all of which he "pre-swapped" during the
Offering for 5,503.18 TRIBE tokens.
Fei Labs is the entity that undertook the development of and
employed the personnel who developed the Fei Protocol—the
blockchain-based software application through which the Offering
was conducted.[BN]
The Plaintiff is represented by:
William R. Restis, Esq.
THE RESTIS LAW FIRM, P.C.
402 West Broadway, Suite 1520
San Diego, California 92101
Phone: +1.619.270.8383
Email: william@restislaw.com
- and -
Angus F. Ni, Esq.
AFN LAW PLLC
506 2nd Ave, Suite 1400
Seattle, WA 98104
Phone: 646.453.7294
Email: angus@afnlegal.com
- and -
Hung G. Ta, Esq.
HGT LAW
Alex Hu (Cal. Bar No. 279585)
250 Park Avenue, 7th Floor
New York, NY 10177
Phone: (646) 453-7288
Email: hta@hgtlaw.com
FEROLIE CORP: Failed to Provide Timely Wages, Robles Says
---------------------------------------------------------
SANDRA ROBLES, on behalf of herself and all other persons similarly
situated, Plaintiff v. FEROLIE CORPORATION, Defendant, Case No.
2:22-cv-02107 (E.D.N.Y., April 12, 2022) arises from the
Defendant's failure to provide timely wages to Plaintiff and all
other similar manual workers in violation of the New York Labor
Law.
The Plaintiff was employed by the Defendant as an hourly-paid
in-store sales agent from August 2018 to April 2022.
Ferolie Corp. provides retail and merchandising services to grocery
stores throughout the State of New York. It has 900 total employees
across all of its locations and generates $69.59 million in
sales.[BN]
The Plaintiff is represented by:
Peter A. Romero, Esq.
LAW OFFICE OF PETER A. ROMERO PLLC
490 Wheeler Road, Suite 250
Hauppauge, NY 11788
Telephone: (631) 257-5588
E-mail: promero@romerolawny.com
FREEDOM FINANCIAL: Denial of Arbitration Bid in Berman Suit Upheld
------------------------------------------------------------------
In the case, DANIEL BERMAN; STEPHANIE HERNANDEZ; ERICA RUSSELL,
Plaintiffs-Appellees v. FREEDOM FINANCIAL NETWORK, LLC; FREEDOM
DEBT RELIEF, LLC; FLUENT, INC.; LEAD SCIENCE, LLC,
Defendants-Appellants, Case No. 20-16900 (9th Cir.), the U.S. Court
of Appeals for the Ninth Circuit affirmed the district court's
denial of the Defendants' motion to compel arbitration and their
motion for reconsideration.
I. Introduction
The Ninth Circuit revisits an issue first addressed by it in Nguyen
v. Barnes & Noble, Inc., 763 F.3d 1171 (9th Cir. 2014): Under what
circumstances can the use of a website bind a consumer to a set of
hyperlinked "terms and conditions" that the consumer never saw or
read?
In the present case, the Plaintiffs used the Defendants' websites
but did not see a notice in fine print stating, "I understand and
agree to the Terms & Conditions which includes mandatory
arbitration." When a dispute arose and the Plaintiffs filed the
lawsuit, the Defendants moved to compel arbitration, arguing that
the Plaintiffs' use of the websites signified their agreement to
the mandatory arbitration provision found in the hyperlinked terms
and conditions. The district court rejected this argument.
II. Background
Defendant Fluent, Inc. is a digital marketing company that
generates leads for its clients by collecting information about
consumers who visit Fluent's websites. Its websites offer rewards
like gift cards and free product samples as an enticement to get
consumers to provide their contact information and answer survey
questions. Fluent then uses the information it collects in targeted
marketing campaigns conducted on behalf of its clients.
The Plaintiffs involved in the appeal, Hernandez and Russell, each
visited a website operated by Fluent. The two websites differed in
certain respects, but both contained a set of hyperlinked terms and
conditions that included a mandatory arbitration provision, the
enforceability of which is the principal issue raised on appeal.
According to Fluent's records, Hernandez visited the Fluent website
www.getsamplesonlinenow.com from a desktop computer. Because
Hernandez had visited a Fluent website before and had previously
entered some of her contact information, the webpage she saw
stated, in large orange letters across the top of the page,
"Welcome back, stephanie!" In the middle of the screen, the webpage
proclaimed, "Getting Free Stuff Has Never Been Easier!" and
included brightly colored graphics. In between those two lines of
text appeared a box that stated at the top, "Confirm your ZIP Code
Below," followed immediately by a pre-populated text box displaying
the zip code 93930. Below that, the page displayed a large green
button inviting Hernandez to confirm the accuracy of the zip code
so that she could proceed to the next page in the website flow. The
text inside the button stated, in easy-to-read white letters, "This
is correct, Continue! >>." Clicking on this button led to the
next page, which asked Hernandez to provide personal information in
order to obtain free product samples and promotional deals.
Between the comparatively large box displaying the zip code and the
large green "continue" button were two lines of text in a tiny gray
font, which stated: "I understand and agree to the Terms &
Conditions which includes mandatory arbitration and Privacy
Policy." The underlined phrases "Terms & Conditions" and "Privacy
Policy" were hyperlinks, but they appeared in the same gray font as
the rest of the sentence, rather than in blue, the color typically
used to signify the presence of a hyperlink. If Hernandez had seen
the "Terms & Conditions" hyperlink and clicked on it, she would
have been taken to a separate webpage displaying a lengthy set of
legal provisions, one of which stated that any disputes related to
telemarketing calls or text messages received from Fluent or its
marketing partners would have to be resolved through arbitration.
According to Fluent's records, Russell visited a different Fluent
website, www.retailproductzone.com, using a mobile phone. The key
webpage she viewed while registering to receive a free gift card
stated at the top, "Shipping Information Required," and below that,
"Complete your shipping information to continue towards your
reward." See Appendix B. What followed were several fields
requiring Russell to input her name, address, telephone number, and
date of birth. Below a line instructing the user to "Select
Gender," two buttons appeared side by side marked "Male" and
"Female." Below that was a large green button with text that
stated, in easy-to-read white letters, "Continue >>." Russell
had to click on the "continue" button to proceed to the next page
in the website flow.
As with the webpage Hernandez viewed, sandwiched between the
buttons allowing Russell to select her gender and the large green
"continue" button were the same two lines of text in tiny gray font
stating, "I understand and agree to the Terms & Conditions which
includes mandatory arbitration and Privacy Policy." The hyperlinks
were underlined but again appeared in the same gray font as the
rest of the sentence. The "Terms & Conditions" contained a
mandatory arbitration provision similar to the one described
above.
Fluent and Defendant Lead Science, LLC used the contact information
provided by consumers like Hernandez and Russell to conduct a
telemarketing campaign on behalf of Defendants Freedom Financial
Network, LLC and Freedom Debt Relief, LLC (collectively, Freedom).
As part of the campaign, Fluent and Lead Science allegedly placed
unsolicited telephone calls and text messages to hundreds of
thousands of consumers, including Hernandez and Russell, marketing
Freedom's debt-relief services.
The Plaintiffs filed the putative class action on behalf of
consumers who received unwanted calls or text messages from the
Defendants during the telemarketing campaign conducted on Freedom's
behalf. They allege that the calls and text messages were made or
sent without their consent and therefore violated the Telephone
Consumer Protection Act (TCPA).
The Defendants moved to compel arbitration, arguing that, by
clicking on the "continue" buttons, Hernandez and Russell had
agreed to the hyperlinked terms and conditions, including the
mandatory arbitration provision. The district court denied the
Defendants' motion. The court concluded that the content and design
of the webpages did not conspicuously indicate to users that, by
clicking on the "continue" button, they were agreeing to Fluent's
terms and conditions.
Shortly after the district court denied the Defendants' motion to
compel arbitration, the Defendants filed a motion for
reconsideration. They asserted that testimony given by the
Plaintiffs in depositions taken two months earlier was material to
the motion to compel. The district court denied the reconsideration
motion, concluding that the Defendants had failed to act with
reasonable diligence in producing the new evidence and,
alternatively, that the Plaintiffs' deposition testimony was not
materially different from the facts the district court had
previously considered.
III. Discussion
On appeal, the Defendants challenge the denial of both motions. The
Ninth Circuit reviews de novo the denial of a motion to compel
arbitration, while underlying factual findings are reviewed for
clear error. It reviews the denial of a motion for reconsideration
for abuse of discretion.
The Ninth Circuit concludes that the design and content of the
webpages Hernandez and Russell visited did not adequately call to
their attention either the existence of the terms and conditions or
the fact that, by clicking on the "continue" button, they were
agreeing to be bound by those terms. Hence, the district court
properly denied the Defendants' motion to compel arbitration
because an enforceable agreement to arbitrate was never formed.
The Ninth Circuit further concludes that had the Defendants acted
with reasonable diligence, the Plaintiffs' deposition testimony
could have been presented to the court in connection with the
motion to compel arbitration. The Defendants could have deposed the
Plaintiffs before filing the motion for reconsideration or before
the close of briefing on the motion. During that period, the
district court granted each extension of the briefing and discovery
schedules the parties requested. Moreover, the Defendants could
have submitted the Plaintiffs' deposition testimony at any point
during the two-month period between the taking of the depositions
and issuance of the court's order denying the motion to compel.
Instead, they waited until after the court had issued its ruling to
present the deposition testimony in support of their new theory
that the Plaintiffs had actual knowledge of the hyperlinked terms
and conditions.
Therefore, the district court did not abuse its discretion in
concluding that the Defendants' "tactical decision not to submit
the deposition testimony until after their motion was denied"
failed to provide any basis for seeking reconsideration of the
court's earlier ruling.
IV. Disposition
For these reasons, the Ninth Circuit affirmed the district court's
denial of the Defendants' motion to compel arbitration and their
motion for reconsideration.
A full-text copy of the Court's April 5, 2022 Opinion is available
at https://tinyurl.com/mrxf68bk from Leagle.com.
Jay T. Ramsey -- jramsey@sheppardmullin.com -- (argued), Sheppard
Mullin Richter & Hampton LLP, in Los Angeles, California; Matthew
G. Halgren -- mhalgren@sheppardmullin.com -- Sheppard Mullin
Richter & Hampton LLP, in San Diego, California, for the
Defendants-Appellants.
Matthew W.H. Wessler -- matt@guptawessler.com -- (argued), Gupta
Wessler, Washington, D.C.; Anthony I. Paronich --
anthony@broderick-law.com -- Paronich Law P.C., in Hingham,
Massachusetts; Beth E. Terrell -- bterrell@terrellmarshall.com --
Terrell Marshall Law Group PLLC, in Seattle, Washington, for the
Plaintiffs-Appellees.
FREEMAN EXPOSITIONS: Landucci's $500K Class Deal Gets Prelim. Nod
-----------------------------------------------------------------
In the case, TERESA LANDUCCI, on behalf of herself and others
similarly situated, Plaintiff v. FREEMAN EXPOSITIONS, LLC and DOES
1 to 100, inclusive, Defendants, Case No. 3:19-cv-07573-JCS (N.D.
Cal.), Chief Magistrate Judge Joseph C. Spero of the U.S. District
Court for the Northern District of California grants preliminary
approval of the Parties' Settlement Agreement.
On Nov. 18, 2019, the Plaintiff initiated the putative class action
by filing a lawsuit in the Court. The Plaintiff brought claims
against the Defendant.
On Nov. 2, 2020, the Plaintiff filed the operative Second Amended
Complaint ("SAC") bringing claims for: (1) unlawfully withheld
wages resulting from the check cashing fees in violation of
California Labor Code Section 212; (2) resulting Waiting Time
Penalties; and (3) unfair business practices in violation of the
Unfair Competition Law, Bus. and Profs. Code Sections 17200, et
seq. ("UCL"). She also asserts a claim for PAGA Penalties on behalf
of the LWDA for violations of Labor Code Section 212. The remaining
causes of action were asserted on an individual basis by the
Plaintiff and have been resolved.
On Sept. 1, 2020, the Defendant denied the Plaintiff's allegations
and asserted numerous affirmative defenses.
Following an extensive investigation and arms'-length and good
faith negotiations during a day-long mediation with mediator
Deborah Saxe, Esq. on June 22, 2021 and subsequent negotiations
during the months thereafter, the Parties ultimately agreed to a
tentative settlement agreement in principle to resolve the Class
and PAGA claims. Following further confirmatory discovery with
third party Bank of America ("BofA"). The Parties subsequently
signed a long form Settlement Agreement (as amended) which has been
filed with the Court.
The Plaintiff moves for the Court to: preliminarily approve the
Class Action and PAGA Settlement for $500,000; preliminarily and
conditionally certify the class for purposes of settlement;
preliminarily appoint Plaintiff Teresa Landucci as the class
representative for purposes of settlement; preliminarily appoint
Hoyer & Hicks as the class counsel for purposes of settlement;
approve as to form and content the Proposed Notice Packet; direct
that the Notice Packet be mailed to the Settlement Class Members;
and schedule a fairness hearing on the question of whether the
proposed settlement should be finally approved as fair, reasonable,
and adequate as to the members of the Settlement Class.
The Plaintiffs preliminary approval motion came on regularly for
hearing before the Court on Feb. 4, 2022. The Court ordered the
Parties to make certain modifications to the Settlement papers.
Judge Spero has received and fully considered the Plaintiff's
notices, motion and memorandum of points and authorities, the
Settlement (as amended), and the proposed Settlement Documents.
Judge Spero finds that certification of the following class for
purposes of settlement is appropriate: All individuals who were
employed by Freeman in California as non-exempt/hourly employees
and who received paper paychecks from Freeman and against whom Bank
of America assessed a non-customer check cashing fee when cashing
at least one such paper paycheck at any time between Nov. 18, 2015
and the date of Preliminary Approval of this Settlement Agreement
by the Court.
Judge Spero appoints (i) Plaintiff Teresa Landucci as the class
representative for the purposes of settlement and (ii) Hoyer &
Hicks as the class counsel for the purposes of settlement.
In connection with its preliminary approval of the Settlement,
Judge Spero appoints Simpluris, Inc. of Santa Ana, CA, to act as
the Settlement Administrator who will administer the Settlement
according to the terms of the Stipulation, as approved by the
Court.
Judge Spero approves the proposed Notice Packet and orders the
Settlement Administrator to distribute the Notice Packet in the
manner and pursuant to the procedures described in the Settlement.
If more than 10% of the Settlement Class submits timely and valid
requests for exclusion pursuant to the terms and procedures of the
Settlement, this entire Settlement will become voidable and
unenforceable as to the Plaintiff and the Defendant, at the
Defendant's sole discretion. The Defendant may exercise such option
by giving notice, in writing, to the Class Counsel and to the Court
not more than 17 days following the Response Deadline.
The Parties have proposed and Judge Spero appoints as cy pres
beneficiary of any uncashed funds, The Impact Fund.
Judge Spero also grants the Plaintiff's motion to set a fairness
hearing for final approval of the Settlement and orders the
following schedule of dates for further proceedings:
a. Mailing of Notice Packet to the class will be completed by
May 11, 2022;
b. Posting of the Plaintiff's Motion for Attorney's Fees and
Costs on the Settlement Administrator's website and filing that
motion in the Court's ECF Docket, 35 days prior to the Response
Deadline; and
c. The deadline for the class members to file and submit
written objections and requests for exclusion will be July 11, 2022
(60 Days After Mailing Date).
The Final Approval/Fairness Hearing will be held on Aug. 26, 2022,
at 9:30 a.m. Class Members may attend the hearing via Zoom.
Instructions are provided by the Court at:
https://www.cand.uscourts.gov/judges/spero-joseph-c-jcs/. Members
of the class may appear and present objections at the Final
Approval/Fairness Hearing in person or by counsel.
The Plaintiff will file a Motion for Final Approval no later than
14 days prior to the hearing.
A full-text copy of the Court's April 6, 2022 Order is available at
https://tinyurl.com/2787xwzh from Leagle.com.
HOYER & HICKS Richard A. Hoyer -- rhoyer@hoyerlaw.com -- Ryan L.
Hicks -- rhicks@hoyerlaw.com -- in San Francisco, California,
Attorneys for Plaintiff TERESA LANDUCCI.
FULTON SAVINGS: Improperly Charges Overdraft Fees, Preaster Says
----------------------------------------------------------------
JEROME PREASTER, individually and on behalf of all others similarly
situated, Plaintiff v. FULTON SAVINGS BANK, Defendant, Case No.
5:22-cv-00342-BKS-TWD (N.D.N.Y., April 11, 2022) arises from the
Defendant's unlawful business practice of assessing $32 fees to
Plaintiff where another fee overdraws the account.
According to the complaint, FSB's fee-on-fee practice breaches
promises made in FSB's adhesion contract, comprised of the Account
and Service Agreement and the Overdraft Policy and the Fee
Schedule.
The Plaintiff and other Defendant customers have been allegedly
injured by Defendant's improper fee maximization practices. The
Plaintiff, individually and on behalf of the class of individuals,
brings claims for Defendant's breach of contract and violations of
New York General Business Law.
Fulton Savings Bank is engaged in the business of providing retail
banking services to consumers.[BN]
The Plaintiff is represented by:
James J. Bilsborrow, Esq.
WEITZ & LUXENBERG, P.C.
700 Broadway
New York, NY 10003
Telephone: (21) 558-5500
E-mail: jbilsborrow@weitzlux.com
- and -
Lynn A. Toops, Esq.
COHEN & MALAD, LLP
One Indiana Square, Suite 1400
Indianapolis, IN 4204
Telephone: (317) 636-6481
E-mail: ltoops@cohenandmalad.com
- and -
J. Gerard Stranch, IV, Esq.
BRANSTETTER, STRANCH & JENNINGS, PLLC
223 Rosa L. Parks Ave. Ste. 200
Nashville, TN 37203
Telephone: (615) 254-8801
E-mail: gerards@bsjfirm.com
- and -
Christopher D. Jennings, Esq.
JOHNSON FIRM
610 President Clinton Avenue, Suite 300
Little Rock, AR 72201
Telephone: (501) 372-1300
E-mail: chris@yourattorney.com
GOLDEN STATE LUMBER: Ruelas Files Suit in Cal. Super. Ct.
---------------------------------------------------------
A class action lawsuit has been filed against Golden State Lumber,
Inc. The case is styled as Ricardo Perez Ruelas, individually and
on behalf of those similarly situated v. Golden State Lumber, Inc.,
Case No. SCV-270593 (Cal. Super. Ct., Sonoma Cty., April 13,
2022).
The case type is stated as "Unlimited Other Employment."
Golden State Lumber Inc. -- https://www.goldenstatelumber.com/ --
supplies building materials.[BN]
The Plaintiff is represented by:
Raymond Paul Boucher, Esq.
Shehnaz Bhujwala, Esq.
BOUCHER LLP
21600 Oxnard St., Ste. 600
Woodland Hills, CA 91367
Phone: 818-340-5400
Fax: 818-340-5401
Email: ray@boucher.la
bhujwala@boucher.la
GONSALVES & SANTUCCI: Rodriguez Suit Dismissed With Prejudice
-------------------------------------------------------------
In the case, ELMER N. RODRIGUEZ, Plaintiff v. GONSALVES & SANTUCCI,
INC., Defendant, Case No. 21-cv-07874-LB (N.D. Cal.), Magistrate
Judge Laurel Beeler of the U.S. District Court for the Northern
District of California, San Francisco Division, dismissed the First
Amended Complaint with prejudice.
I. Introduction
In the putative class action, the Plaintiff, a construction worker,
sued his former employer in state court, claiming that employees
routinely worked overtime hours, generally because they were not
compensated for tasks that they had to complete before clocking in
at the beginning of the day and after clocking off at the end of
the day. This meant that the Plaintiffs were not paid minimum wage
and did not receive accurate wage statements.
The Court previously dismissed an earlier complaint on the ground
that Section 201 of the Labor Management Relations Act preempted
the claims because they either (1) involve rights conferred
directly by the parties' collective-bargaining agreement (CBA) or
(2) substantially depend on analysis and interpretation of the CBA.
The LMRA also preempts the claims in the amended complaint.
II. Background
In the initial complaint, the Plaintiff alleged that the class
members worked overtime hours because the Defendant made them work
off the clock "by, among other things, failing to accurately track
and/or pay for all minutes actually worked; engaging, suffering, or
permitting employees to work off the clock, including, without
limitation, by requiring employees: to make phone calls or drive
off the clock; detrimental rounding of employee time entries, and
editing and/or manipulation of time entries to show less minutes
than actually worked." They also claimed an inability to take their
meal and rest breaks.
As a result, the Defendant did not pay employees the full wages due
them on termination (including overtime and minimum wages and
vacation pay). This meant that their wage statements were
inaccurate. The employer did not reimburse costs that employees
incurred in (1) buying mandatory work uniforms, safety equipment,
and tools, (2) laundering mandatory uniforms, and (3) using
personal cell phones for work. The Defendant also had a policy of
not paying employees with compensation at their final rate of pay
for unused vested vacation pay.
The complaint had the following claims: (1) failure to pay overtime
pay (claim one); (2) failure to pay minimum wages (claim two); (3)
failure to provide meal and rest breaks (claims three and four);
(4) failure to pay all wages on termination (claim five); (5)
failure to provide accurate wage statements (claim six); (6)
failure to reimburse employees for necessary expenditures in
violation of Cal. Labor Code Section 2802 (claim seven); (7)
failure to pay vested vacation pay in violation of Cal. Labor Code
Section 227.3 (claim eight); and (8) a violation of California's
Unfair Competition Law (UCL), Cal. Labor Code Section 17200,
predicated on the underlying Labor Code violations (claim nine).
The complaint did not mention the CBA or whether the Plaintiff
invoked the dispute-resolution process.
In the amended complaint, the Plaintiff alleged that class members
worked overtime hours because the defendant made them work off the
clock "by, among other things, failing to accurately track and/or
pay for all minutes actually worked; engaging, suffering, or
permitting the class members to work off the clock. As a result,
the Defendant did not pay the class members the full wages due them
on termination. This meant that their wage statements were
inaccurate.
The FAC has the following claims: (1) failure to pay minimum wages
in violation of Cal. Labor Code Section 1197; (2) failure to
provide accurate wage statements in violation of Cal. Labor Code
Section 226(a); (3) failure to pay all wages on termination in
violation of Cal. Labor Code Section 201-02; and (4) unfair
competition in violation of the UCL. The complaint did not mention
the CBA or whether the Plaintiff invoked the dispute-resolution
process.
The Plaintiff worked for the Defendant on construction projects
from February 2020 to December 2020 and was a member of a CBA
governing ironworkers' employment. The 2017 CBA covered July 1,
2017, to June 30, 2020, and the 2020 CBA covered July 1, 2020, to
Dec. 31, 2024.
The Court held a hearing on the motion to dismiss on March 31,
2022. All parties consented to magistrate-judge jurisdiction under
28 U.S.C. Section 636.
III. Analysis
The main claim is the unpaid minimum-wage claim. In sum, the
allegations are that the off-the-clock work meant that sometimes
employees were not paid for all time worked. That in turn meant
that the Defendant did not pay class members the full wages due
them on termination and that their wage statements were inaccurate.
If the predicate minimum-wage claim is preempted, the other claims
fail too. All claims are preempted, Judge Beeler holds.
She explains, the CBA is detailed and spells out all aspects of the
parties' work relationship, including the terms that the defendant
identified. The unpaid minimum-wage claim turns on these terms.
Determining the meaning of industry terms is a form of
interpretation." As the Court held previously, because the claim
for unpaid minimum wages substantially depends on an analysis of
the CBA, the LMRA preempts the claim.
The Plaintiff cites several cases to support his position that
interpretation of the CBA nonetheless is not required for the
off-the-clock claim. Judge Beeler holds that they do not change the
outcome.
First, he cites Parker v. Cherne Contracting Corp. for the
contention that "preemption is not appropriate when, as in the
present case, a plaintiff asserts various wage and hours claims
based on a failure to compensate at all for certain hours allegedly
worked." Judge Beeler holds that the Defendant distinguishes Parker
persuasively: It involved only the application of the minimum-wage
rate in the CBA. By contrast, the instant case involves the
interpretation of other terms.
Second, the Plaintiff cites Andrade v. Rehrig Pac. Co., No.
20-cv-1448 FMO (RAOx), 2020 WL 1934954, at * 3 (C.D. Cal. April 22,
2020), for the contention that the LMRA does not preempt the claim,
even where a CBA defines the wages or hours of work. The court
there held that "irrespective of how 'the wages' or 'hours of work'
are determined under a CBA, plaintiff is entitled to be paid a
minimum wage and overtime for all hours he was under the `control'
of defendant." But Judge Beeler finds that that case involved
overtime pay and the interplay of whether the CBA met the threshold
requirements of the California Labor Code. By contrast, in the
present case, after the Court dismissed the overtime claim in the
earlier complaint, the Plaintiff abandoned it.
Third, the Plaintiff cites McGhee v. Tesoro Refining & Mktg. Co.
LLC for the premise that there is no LMRA preemption in the present
case because the terms in the CBA are not complicated. The employer
in McGee allegedly did not pay employees for periods when they were
on call. The court held that the defendants failed to show anything
more than a "hypothetical connection between the claims and the
terms of the CBA" and "failed to demonstrate that any CBA provision
was actively disputed." By contrast, the Defendants have identified
terms in the CBA that require interpretation.
The derivative claims rely on the dismissed claim and claims that
have not been submitted under the grievance procedure in the CBA.
Judge Beeler will dismiss them too.
IV. Order
Judge Beeler dismissed the FAC with prejudice because the LMRA
preempts all claims. The Order resolves ECF No. 34.
A full-text copy of the Court's April 5, 2022 Order is available at
https://tinyurl.com/bdcwba7s from Leagle.com.
GRAB HOLDINGS: Kessler Topaz Reminds of May 16 Deadline
-------------------------------------------------------
The law firm of Kessler Topaz Meltzer & Check, LLP (www.ktmc.com)
informs investors that a securities class action lawsuit has been
filed in the United States District Court for the Southern District
of New York against Grab Holdings Limited ("Grab") (NASDAQ: GRAB;
GRABW). The action charges Grab with violations of the federal
securities laws, including omissions and fraudulent
misrepresentations relating to the company's business, operations,
and prospects. As a result of Grab's materially misleading
statements to the public, Grab's investors have suffered
significant losses.
https://www.ktmc.com/grab-class-action-lawsuit?utm_source=PR&utm_medium=link&utm_campaign=grab
LEAD PLAINTIFF DEADLINE: MAY 16, 2022
CLASS PERIOD: NOVEMBER 12, 2021 THROUGH MARCH 3, 2022
CONTACT AN ATTORNEY TO DISCUSS YOUR RIGHTS:
James Maro, Esq. at (484) 270-1453 or via email at info@ktmc.com
Kessler Topaz is one of the world's foremost advocates in
protecting the public against corporate fraud and other wrongdoing.
Our securities fraud litigators are regularly recognized as leaders
in the field individually and our firm is both feared and respected
among the defense bar and the insurance bar. We are proud to have
recovered billions of dollars for our clients and the classes of
shareholders we represent.
GRAB'S ALLEGED MISCONDUCT
Grab develops delivery management, mobility, financial services,
and enterprise software solutions. In particular, Grab operates a
"super app" that functions as Southeast Asia's largest ride-hailing
and delivery service, similar to Uber.
On March 3, 2022, Grab disclosed that its fourth quarter revenues
had declined 44% from the previous quarter and reported a $1.1
billion loss for the quarter. During a conference call held in
connection with the results, Anthony Tan, Grab's Chief Executive
Officer, attributed the poor financial results to "invest[ing]
heavily" in driver incentives. During the conference call, Peter
Oey, Grab's Chief Financial Officer, stated that it would take one
or two quarters "to get that equilibrium between drivers and
riders, between supply and demand." He also stated that "for the
first quarter, we expect to see deliveries GMV of $2.4 billion to
$2.5 billion, mobility GMV of $760 million to $800 million, and
financial services TPV of $3.1 billion to $3.2 billion."
Following this news, Grab's stock price fell $2.04, or 37.3%, to
close at $3.28 per share on March 3, 2022.
WHAT CAN I DO?
Grab investors may, no later than May 16, 2022 seek to be appointed
as a lead plaintiff representative of the class through Kessler
Topaz Meltzer & Check, LLP or other counsel, or may choose to do
nothing and remain an absent class member. Kessler Topaz Meltzer &
Check, LLP encourages Grab investors who have suffered significant
losses to contact the firm directly to acquire more information.
WHO CAN BE A LEAD PLAINTIFF?
A lead plaintiff is a representative party who acts on behalf of
all class members in directing the litigation. The lead plaintiff
is usually the investor or small group of investors who have the
largest financial interest and who are also adequate and typical of
the proposed class of investors. The lead plaintiff selects counsel
to represent the lead plaintiff and the class and these attorneys,
if approved by the court, are lead or class counsel. Your ability
to share in any recovery is not affected by the decision of whether
or not to serve as a lead plaintiff.
ABOUT KESSLER TOPAZ MELTZER & CHECK, LLP
Kessler Topaz Meltzer & Check, LLP prosecutes class actions in
state and federal courts throughout the country and around the
world. The firm has developed a global reputation for excellence
and has recovered billions of dollars for victims of fraud and
other corporate misconduct. All of our work is driven by a common
goal: to protect investors, consumers, employees and others from
fraud, abuse, misconduct and negligence by businesses and
fiduciaries. The complaint in this action was not filed by Kessler
Topaz Meltzer & Check, LLP. For more information about Kessler
Topaz Meltzer & Check, LLP please visit www.ktmc.com.
CONTACT:
Kessler Topaz Meltzer & Check, LLP
James Maro, Jr., Esq.
280 King of Prussia Road
Radnor, PA 19087
(484) 270-1453
info@ktmc.com [GN]
GRAND GATEWAY: Faces Racial Discrimination Class Action
-------------------------------------------------------
KELO reports that a class action lawsuit has been filed against a
South Dakota hotel linked to racist social media posts.
Early on April 9, a shooting happened near the Grand Gateway Hotel.
A person was found shot and seriously injured in one of the hotel
rooms. After that, one of the owners made several comments on
Facebook threatening to ban all Native Americans from the hotel and
Cheers Sports.
On April 13, a crowd of people marched through the city to show
support for indigenous communities and people of color.
"We had a really good turnout here today. It was peaceful. It was
powerful. We shared a lot of songs and we came here to show unity
for our people. A lot of people are here with us in spirit. Today
turned out really really good," Nick Tilsen, CEO of NDN Collective,
said.
The lawsuit, filed after the crowd gathered, gives examples of the
hotel turning away Native American customers, including a woman
named Sunny Red Bear. The lawsuit claims she was discriminated
against in violation of federal law.
A Rapid City group is behind the lawsuit.
City, tribal and community leaders released a joint statement
condemning and denouncing the social media posts, saying they are
wrong and hurtful to Native Americans and only serve to divide
people.
Nexstar's KELO has reached out to the hotel for comment but hasn't
yet received a response. [GN]
GUIDA-SEIBERT DAIRY: Gould Files Suit in D. New Jersey
------------------------------------------------------
A class action lawsuit has been filed against The Guida-Seibert
Dairy Company, et al. The case is styled as Tiffanee Gould,
individually, and on behalf of her minor son, A.J.; Dominique
Wilson, individually, and on behalf of her minor daughter, A.J.;
Deborah Pollitt, individually, and on behalf of her minor daughter,
D.P.; on behalf of themselves and those similarly situated v. The
Guida-Seibert Dairy Company, John Does 1-10, ABC Business Entities
1-10, Case No. 1:22-cv-01861-NLH-AMD (D.N.J., April 1, 2022).
The nature of suit is stated as Personal Inj. Prod. Liability.
The Guida-Seibert Dairy Company or Guida's -- https://guidas.com/
-- is a company that delivers fresh dairy and dairy related
products.[BN]
The Plaintiffs are represented by:
Joseph D. Lento, Esq.
Samuel Jackson, Esq.
LENTO LAW GROUP, P.C.
3000 Atrium Way, Suite 200
Mt. Laurel, NJ 08054
Phone: (856) 652-2000
Fax: (856) 375-1010
Email: JdLento@optimumlawgroup.com
sdjackson@lentolawgroup.com
HENRI COLLECTIVE: Hyppolite Sues Over Unpaid Wages
--------------------------------------------------
Theo Hyppolite, individually and on behalf of the State of
California as well as Aggrieved Employees v. HENRI COLLECTIVE,
INC., REBECCA HEARN, an individual, and DOE 1 through and including
DOE 10, Case No. 22STOV11045 (Cal. Super. Ct., Los Angeles Cty.,
April 1, 2022), is brought under the California Labor Code Private
Attorneys General Act ("PAGA") seeking unpaid wages, continuing
wages, damages, civil penalties, statutory penalties and attorneys'
fees and costs.
The Defendants have failed to properly compensate the Plaintiff
and/or other persons who performed services on the Production or
other such projects produced in California ("Aggrieved Employees")
for work performed. The Plaintiff and the Aggrieved Employees
worked overtime on the filming of the Production, toiling in excess
of eight hours in a single day. However, neither the Plaintiff nor
other Aggrieved Employees have been compensated as required by law.
Although the Plaintiff should have been timely paid in full for
their accrued minimum wages and overtime, they were not so paid the
wages owing to them. Further, they have not received any wage
statement for their work, documentation providing information such
as hours worked, rate of pay, and the legal name and address of the
employer, as well as detailing required tax withholding. The
Plaintiff have not received proper wage statements for all work,
says the complaint.
The Plaintiff was employed by the Defendants as a crew member on
April 29, 2021.
Henri Collective, Inc. is a California limited liability
company.[BN]
The Plaintiff is represented by:
Alan Harris, Esq.
David Garrett, Esq.
Lin Zhan, Esq.
HARRIS & RUBLE
655 North Central Avenue 17th Floor
Glendale, CA 91203
Phone: 323.962.3777
Fax: 323.962.3004
Email: harrisa@harrisandruble.com
dgarrett@harrisandruble.com
lZhan@harrisandruble.com
HOMOLOGY MEDICINES: Rosen Law Firm Reminds of May 24 Deadline
-------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, reminds
purchasers of the securities of Homology Medicines, Inc. (NASDAQ:
FIXX) between June 10, 2019 and February 18, 2022, inclusive (the
"Class Period"), of the important May 24, 2022 lead plaintiff
deadline.
SO WHAT: If you purchased Homology securities during the Class
Period you may be entitled to compensation without payment of any
out of pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the Homology class action, go to
https://rosenlegal.com/submit-form/?case_id=4851 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than May 24, 2022. A
lead plaintiff is a representative party acting on behalf of other
class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Many of these firms do not actually
handle securities class actions, but are merely middlemen that
refer clients or partner with law firms that actually litigate the
cases. Be wise in selecting counsel. The Rosen Law Firm represents
investors throughout the globe, concentrating its practice in
securities class actions and shareholder derivative litigation.
Rosen Law Firm has achieved the largest ever securities class
action settlement against a Chinese Company. Rosen Law Firm was
Ranked No. 1 by ISS Securities Class Action Services for number of
securities class action settlements in 2017. The firm has been
ranked in the top 4 each year since 2013 and has recovered hundreds
of millions of dollars for investors. In 2019 alone the firm
secured over $438 million for investors. In 2020, founding partner
Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar.
Many of the firm's attorneys have been recognized by Lawdragon and
Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) Homology had overstated the
efficacy and risk mitigation regarding HMI-102, which is in Phase
I/II pheNIX clinical trial and a gene therapy for the treatment of
phenylketonuria (PKU) in adults; (2) accordingly, it was unlikely
that Homology would be able to commercialize HMI-102 in its present
form; and (3) as a result, defendants' public statements were
materially false and misleading at all relevant times. When the
true details entered the market, the lawsuit claims that investors
suffered damages.
To join the Homology class action, go to
https://rosenlegal.com/submit-form/?case_id=4851 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275
Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060
Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com
pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN]
HONEYWELL INT'L: Court Grants Bid for Entry of Judgment in UAW Suit
-------------------------------------------------------------------
In the case, INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE, AND
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW), and THOMAS BODE,
BRUCE EATON, WILLIAM BURNS, PETER ANTONELLIS, and others
similarly-situated, Plaintiffs v. HONEYWELL INTERNATIONAL INC.,
Defendant, Case No. 11-CV-14036 (E.D. Mich.), Judge Denise Page
Hood of the U.S. District Court for the Eastern District of
Michigan, Southern Division, granted Honeywell's Motion for Entry
of Judgment.
I. Introduction
The Plaintiffs filed the present action on Sept. 15, 2011. On June
10, 2020, Honeywell filed a Motion for Entry of Judgment. The
Motion has been fully briefed, and pursuant to Eastern District of
Michigan Local Rule 7.1(f)(2), the Motion is determined without
oral argument.
II. Background
On March 29, 2018, the Court entered an Order holding, in part,
that Defendant Honeywell was required to pay "full-premium"
benefits during the term of the parties' 2011 CBA, and so was
required to "make whole" retirees who had received lesser amounts.
On July 25, 2018, the Court entered an Order denying the
Plaintiffs' motion for summary judgment and granting Honeywell's
cross-motion for summary judgment. It entered a Judgment concurrent
with that Order that stated: "It is ordered and adjudged that
pursuant to the Court's Order entered on July 25, 2018, the cause
of action is dismissed with prejudice."
In an Opinion dated April 3, 2020, the Sixth Circuit reversed that
conclusion, holding that: "For these reasons, we affirm the
district court's decision that (1) the pre-2003 CBAs did not vest
lifetime, full-premium benefits, and (2) the 2003, 2007, and 2011
CBAs did not vest lifetime, floor-level benefits. We also affirm
its dismissal of the UAW's claim that Honeywell received windfall
financial advantages. And we reverse its decision that the 2011 CBA
did not end Honeywell's obligation to make full-premium
contributions during the terms of that CBA. Finally, we remand this
case to the district court for any further proceedings that might
be needed to effectuate our opinion."
The Sixth Circuit also issued a "Judgment" concurrent with that
Opinion. The "Judgment" provided that the: "district court's
decision that (1) the pre-2003 CBAs did not vest lifetime,
full-premium benefits, and (2) the 2003, 2007, and 2011 CBAs did
not vest lifetime, floor-level benefits, and its dismissal of the
UAW's claim that Honeywell received windfall financial advantages
are affirmed. It is further ordered that its decision that the 2011
CBA did not end Honeywell's obligation to make full premium
contributions during the terms of that CBA is reversed."
On May 19, 2020, the Sixth Circuit entered its mandate.
III. Discussion
Honeywell moves the Court to enter a new judgment that reflects the
Sixth Circuit's recent opinion, relying on Federal Rule of Civil
Procedure 58. Rule 58 provides that "every judgment and amended
document must be set out in a separate document," and "a party may
request that judgment be set out in a separate document as required
by Rule 58(a)." Honeywell relied on Meier v. Green, 2007 WL
3379695, at *1 (E.D. Mich. Nov. 14, 2007), a case in which the
court held that, "In the absence of any reason why a separate
judgment should not issue, the court will grant Defendant's
motion."
The Plaintiffs' response does not challenge the appropriateness of
a new judgment, except to state that the Court's July 25, 2018
Judgment already grants Honeywell the relief it seeks now:
Dismissal of the Plaintiff's cause of action, with prejudice. The
Plaintiffs assert that the Motion is simply an attempt to create a
new Judgment from which Honeywell can file a motion for attorney
fees as a prevailing party. They argue, however, that the July 25,
2018 Judgment already established Honeywell as the prevailing party
because it was on that date that the Court dismissed their cause of
action, with prejudice.
Judge Hood concludes that a new judgment is needed. Prior to the
Court's entry of Judgment on July 25, 2018, the Court twice
concluded that the 2011 CBA did not end Honeywell's obligation to
make full-premium contributions during the terms of that CBA.
Specifically, the July 25, 2018 Order reiterated the Court's
holding in the March 29, 2018 Order that Honeywell was required to
make certain payments to retirees under the terms of the 2011 CBA.
And, based on that holding, Honeywell was liable for millions of
dollars in premiums.
In the Sixth Circuit's April 3, 2020 Opinion, the Sixth Circuit
reversed that ruling, so it is no longer operative. For that
reason, even though the Court dismissed the Plaintiffs' cause of
action with prejudice on July 25, 2018, Judge Hood finds that a new
judgment reflecting the entirety of the Sixth Circuit's ruling is
necessary. The Court's 2018 Judgment is no longer accurate because
it incorporates a ruling holding Honeywell liable for certain
payments and that ruling has since been reversed.
IV. Conclusion
Accordingly, Judge Hood granted the Defendant's Motion for Entry of
Judgment.
A new, amended judgment will be entered separately.
A full-text copy of the Court's April 5, 2022 Order is available at
https://tinyurl.com/3krkn5ks from Leagle.com.
HONG KONG KITCHEN: Rossete Files FLSA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Hong Kong Kitchen
(USA) Inc., et al. The case is styled as Arturo Velazquez Rossete,
on behalf of all others similarly situated v. Hong Kong Kitchen
(USA) Inc. d/b/a Hong Kong Sushi; Feng Chen, as an individual; Li
Yong, as an individual; Case No. 1:22-cv-03049-LGS (S.D.N.Y., April
13, 2022).
The lawsuit is brought over alleged violation of the Fair Labor
Standards Act.
Hong Kong Kitchen -- https://hongkongkitchenaz.com/ -- is a
restaurant serving Chinese Food.[BN]
The Plaintiff is represented by:
James Patrick Peter O'Donnell, Esq.
Roman Mikhail Avshalumov, Esq.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Phone: (718) 263-9591
Email: jamespodonnell86@gmail.com
avshalumovr@yahoo.com
JAMES KOUTOULAS: Ford Sues Over False and Misleading Statements
---------------------------------------------------------------
Eric De Ford, individually and on behalf of all others similarly
situated v. JAMES KOUTOULAS, JEFFREY CARTER, ERIK NORDEN, ALEX
MASCIOLI, ISLAND LIQUIDITY, LLC, BRANDON BROWN, BRANDONBILT
MOTORSPORTS, LLC, NATIONAL ASSOCIATION FOR STOCK CAR AUTO RACING,
LLC, CANDACE OWENS, DAVID J. HARRIS, JR., AUSTEN FLETCHER a/k/a
FLECCAS, BRENDON LESLIE, CORPORATE DEFENDANT DOE, and JOHN DOES
1-10, Case No. 6:22-cv-00652-PGB-DCI (M.D. Fla., April 1, 2022), is
brought on behalf of all investors who purchased virtual currency
in the form of Let's Go Brandon meme tokens ("LGB Tokens") arising
from a scheme among various individuals in the cryptocurrency
sector to misleadingly promote and sell Initial Coin Offerings
("ICO") and digital assets associated with the Company (the LGB
Tokens) to unsuspecting investors.
The Company's executives and insiders had noticed that the "Let's
Go Brandon" political phrase was going viral nationally and
opportunistically sought to monetize the attention for their own
personal benefit. In particular, the Company's insiders,
collaborating with several celebrity promotors, (a) made false or
misleading statements to investors about the LGB Tokens through
social media advertisements and other promotional activities, and
(b) disguised their control over the Company and a significant
percent of the LGB Tokens that were available for public trading
during the Relevant Period (the "Float"). In furtherance of this
scheme, Defendants pushed the LGB Tokens as a means of promoting
the American dream, while simultaneously touting the prospects for
the LGB Tokens and the ability for investors to make significant
returns from the LGB Tokens like other so-called "meme coin"
digital assets. When that well ran dry, Defendants pointed to the
favorable "tokenomics" that would financially benefit LGB Token
holders. In truth, Defendants cynically marketed the LGB Tokens to
investors so that they could sell off their portion of the Float
for a profit.
The Defendants' strategy was a success. The misleading promotions
and celebrity endorsements were able to artificially increase the
interest in and price of the LGB Tokens during the Relevant Period,
causing investors to purchase these losing investments at inflated
prices. In addition, the Executive Defendants disguised their
control of the Company to avoid scrutiny and facilitate this
scheme. The Executive Defendants then conspired with the Promoter
Defendants to sell their pre-sale LGB Tokens to investors for a
profit.
The Plaintiff and other investors invested in a common enterprise
with the expectation and understanding that the increased value of
the Company and the LGB Tokens would produce a substantial return
on their investment based on the Defendants' efforts. Thus, while
the Company and the Executive Defendants' endorsement of LGB Tokens
as a regulation-free investment to avoid governmental scrutiny, LGB
Tokens were actually unregistered securities promoted and offered
by Defendants. Plaintiff brings this class action on behalf of
himself and an objectively identifiable class consisting of all
investors that purchased the Company's LGB Tokens between November
4, 2021, and March 15, 2022, says the complaint.
The Plaintiff De Ford purchased LGB Tokens via the U.S.- based
cryptocurrency exchanges Coinbase and Uniswap, and suffered
investment losses as a result of Defendants' conduct.
Koutoulas is the co-founder/creator of the Company, served as a
consultant, developer, and spokesman for the Company, is an LGB
Tokens holder, and exercised control over the Company and directed
and/or authorized, directly or indirectly, the sale and/or
solicitations of LGB Tokens to the public.[BN]
The Plaintiff is represented by:
Aaron M. Zigler, Esq.
Robin Horton Silverman, Esq.
ZIGLER LAW GROUP, LLC
308 S. Jefferson Street | Suite 333
Chicago, IL 60661
Phone: 312-673-8427
Email: aaron@ziglerlawgroup.com
robin.horton@ziglerlawgroup.com
- and -
John T. Jasnoch, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
600 W. Broadway, Suite 3300
San Diego, CA 92101
Phone: 619-233-4565
Email: jjasnoch@scott-scott.com
- and -
Sean T. Masson, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
Phone: 212-223-6444
Email: smasson@scott-scott.com
JAS LINKS HEALTHCARE: Yopp Sues Over Unpaid Overtime Wages
----------------------------------------------------------
Marilyn Yopp, individually, and on behalf of all others similarly
situated v. JAS LINKS HEALTHCARE SERVICES, INC. and CHIOMA MBONU,
Case No. 1:22-cv-01293-WMR (N.D. Ga., April 1, 2022), is brought
arising from the Defendants' willful violations of the Fair Labor
Standards Act.
The Defendants maintained a common policy of failing to pay
hourly-paid employees at time-and-a-half of their regular rate for
hours worked in excess of 40 in a workweek, in violation of the
FLSA's overtime provisions. To the extent Defendants paid
hourly-paid employees for hours worked in excess of 40 in a
workweek, such pay was at the same rate of pay they received for
non-overtime hour, says the complaint.
The Plaintiff was employed by the Defendants in the position of
home health aide ("HHA") from August 2019 through the present.
JAS is a home health agency that provides in-home medical services
throughout the state.[BN]
The Plaintiff is represented by:
Roger Orlando, Esq.
THE ORLANDO FIRM, P.C.
315 West Ponce De Leon Ave, Suite
400, Decatur, GA 30030
Phone: (973) 898-0404
Email: roger@orlandofirm.com
- and -
Edmund C. Celiesius, Esq.
Nicholas Conlon, Esq.
BROWN, LLC
111 Town Square Pl, Suite 400
Phone: (877) 561-0000
Fax: (855) 582-5297
Email: ed.celiesius@jtblawgroup.com
nicholasconlon@jtblawgroup.com
JIM KOONS: Perez Sues Over Failure to Protect Customers' Info
-------------------------------------------------------------
IRIS PEREZ, on behalf of herself and of all others similarly
situated, Plaintiff v. JIM KOONS MANAGEMENT COMPANY, d/b/a JIM
KOONS AUTOMOTIVE COMPANIES, Defendant, Case No. 1:22-cv-00875-JMC
(D. Md., April 11, 2022) is a class action arising out of a recent
data breach involving the unauthorized disclosure of Plaintiff's
and Class Members' sensitive, confidential information by Defendant
in violation of the Maryland Consumer Protection Act.
On January 14, 2022, Koons announced that on June 5, 2021, it had
discovered that private information stored on its computer systems
had been accessed and encrypted by an unauthorized third-party.
The lawsuit is brought against Koons for its alleged failure to
properly secure and safeguard its sensitive information that
customers of Defendant entrusted to it, including, without
limitation, name, address, Social Security number, driver's license
number, and financial account information which Koons collected at
the time Plaintiff and Class Members made purchases or requested
information about vehicle financing or purchasing from Koons, and
for failing to provide timely, accurate and adequate notice to
Plaintiff and other Class Members that their PII had been
compromised and precisely what types of information were improperly
accessed and/or removed.
As a result of the data breach, the personally identifiable
information of Plaintiff and Class Members has been exposed to
criminals for misuse, asserts the complaint.
Jim Koons Management Company operates as a private automotive
company.[BN]
The Plaintiff is represented by:
Tara L. Tighe, Esq.
MORGAN AND MORGAN
1901 Pennsylvania Avenue, N.W Suite 300
Washington, DC 20006
Telephone: (571) 357-7600
Facsimile: (571) 357-7624
E-mail: ttighe@forthepeople.com
- and -
Jean S. Martin, Esq.
Francesca Kester, Esq.
MORGAN & MORGAN COMPLEX LITIGATION GROUP
201 N. Franklin Street, 7th Floor
Tampa, FL 33602
Telephone: (813) 223-5505
Facsimile: (813) 223-5402
E-mail: jeanmartin@forthepeople.com
fkester@forthepeople.com
LAKEVIEW LOAN: Stone Sues Over Failure to Protect Customers' Info
-----------------------------------------------------------------
STEPHENIE STONE, Individually and on Behalf of All Others Similarly
Situated, Plaintiff v. LAKEVIEW LOAN SERVICING, LLC, Defendant,
Case No. 1:22-cv-21094 (S.D. Fla., April 11, 2022) is a class
action brought by the Plaintiff to seek recovery on behalf of
herself and over 2.5 million similarly situated people, over the
Defendant's failure to properly secure and safeguard its customers'
sensitive personally identifiable information.
According to the complaint, the Defendant discovered that an
unauthorized actor gained access to its file servers in December
2021. Defendant later determined that an unauthorized party gained
access to Defendant's server from October 27, 2021 to December 7,
2021, and that the data on this server included Plaintiff's and
Class Members' personally identifiable information.
Because of Defendant's failure to properly protect the PII in its
possession, Plaintiff and Class Members are now at a significant
present and future risk of identity theft, financial fraud, and/or
other identity-theft or fraud, imminently and for years to come,
says the suit.
Lakeview Loan Servicing, LLC is a mortgage servicer in the United
States.[BN]
The Plaintiff is represented by:
Stuart A. Davidson, Esq.
Dorothy P. Antullis, Esq.
Eric S. Dwoskin, Esq.
Maxwell H. Sawyer, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
120 East Palmetto Park Road, Suite 500
Boca Raton, FL 33432
Telephone: (561) 750-3000
Facsimile: (561) 750-3364
E-mail: sdavidson@rgrdlaw.com
dantullis@rgrdlaw.com
edwoskin@rgrdlaw.com
msawyer@rgrdlaw.com
- and -
Anne T. Regan, Esq.
Nathan D. Prosser, Esq.
Lindsey L. Larson, Esq.
HELLMUTH & JOHNSON PLLC
8050 West 78th Street
Edina, MN 55439
Telephone: (952) 941-4005
Facsimile: (952) 941-2337
E-mail: aregan@hjlawfirm.com
nprosser@hjlawfirm.com
llabellelarson@hjlawfirm.com
LIFELONG MEDICAL: Cowan Suit Moved to Alameda County Superior Court
-------------------------------------------------------------------
Judge Vince Chhabria of the U.S. District Court for the Northern
District of California remanded the case, HERMAN COWAN, et al.,
Plaintiffs v. LIFELONG MEDICAL CARE, Defendant, Case No.
21-cv-10062-VC (N.D. Cal.), to the Superior Court of the State of
California for the County of Alameda.
LifeLong, a Berkeley-based healthcare provider, experienced a data
breach that exposed confidential patient information. Cowan and
Mary Scott brought state law claims against Lifelong in California
state court, alleging that the healthcare provider failed to take
the proper precautions to prevent data breaches. Cowan and Scott
seek to represent a class of California residents whose
confidential information was exposed during the breach.
Lifelong filed a cross-complaint against Netgain Technology, a
Minnesota-based data vendor with which Lifelong signed a contract
for computer services. The cross-complaint alleges that Netgain is
ultimately responsible for any damages arising out of the breach.
Lifelong then filed a notice of removal, explaining that because
Netgain is a Delaware corporation based in Minnesota, the action
meets the minimal diversity requirement under the Class Action
Fairness Act.
Judge Chhabria explains that CAFA provides the federal courts with
original jurisdiction over class actions involving at least 100
class members, where the amount in controversy exceeds $5 million,
and in which "any member of a class of plaintiffs is a citizen of a
State different from any defendant." The general removal statute
provides that "any civil action brought in a State court of which
the district courts of the United States have original
jurisdiction, may be removed by the defendant or the defendants."
The question before the Court is whether minimal diversity may be
based solely on the presence of a diverse third-party defendant,
brought into the suit via a cross-complaint.
The Supreme Court's decision in Home Depot U.S.A., Inc. v. Jackson
all but answers the question. 139 S.Ct. 1743 (2019). There, the
Court held that a third-party defendant brought into the case by
way of counterclaim filed by the original defendant could not
remove an action under CAFA, explaining that this third-party
defendant did not count as a "defendant" under either the general
removal statute or CAFA's removal provision.
The Court emphasized that it "has long held that a district court,
when determining whether it has original jurisdiction over a civil
action, should evaluate whether that action could have been brought
originally in federal court." Against that backdrop, Home Depot
concluded that "section 1441(a) thus does not permit removal based
on counterclaims at all, as a counterclaim is irrelevant to whether
the district court had 'original jurisdiction' over the civil
action."
Judge Chhabria says, although Home Depot addressed removal by
third-party defendants, the logic applies even more strongly to
removal by original defendants. Cowan and Scott could not have
brought the case originally in federal court, and Lifelong's
decision to file a cross-claim against a diverse third party cannot
create jurisdiction.
Lifelong argues that the Cowan and Scott deliberately engineered
their complaint to avoid CAFA jurisdiction by neglecting to sue
Netgain in the original complaint. It points to language in the
federal diversity statute providing that a court may consider
"whether the class action has been pleaded in a manner that seeks
to avoid Federal jurisdiction."
But, according to Judge Chhabria, this language stems from the
so-called "discretionary home state exception." The exception
provides district courts discretion to remand cases that otherwise
meet CAFA's criteria in the "interests of justice." It is not, as
Lifelong seems to assume, a tool permitting district courts to
exercise jurisdiction where there would otherwise be none. Lifelong
does not in any event adequately allege that Cowan and Scott
engineered their complaint to avoid federal jurisdiction. The
complaint focuses on misconduct by Lifelong. And although it
references Netgain at several points, Cowan and Scott were not
required to sue Netgain simply because they could.
Plaintiffs Cowan and Scott move for attorney's fees. Section 1447
provides that "an order remanding the case may require payment of
just costs and any actual expenses, including attorney's fees,
incurred as a result of the removal." But "absent unusual
circumstances, courts may award attorney's fees under Section
1447(c) only where the removing party lacked an objectively
reasonable basis for seeking removal."
Judge Chhabria holds that Lifelong's arguments may be strained, but
they do count as "objectively unreasonable." Hence, the motion for
fees is denied.
The Clerk of the Court will remand the matter to the Alameda County
Superior Court.
A full-text copy of the Court's April 6, 2022 Order is available at
https://tinyurl.com/yc9cj8ch from Leagle.com.
LOS ANGELES COUNTY, CA: Time to Answer Amended Thai Suit Extended
-----------------------------------------------------------------
In the case, ANH VAN THAI, DON DOAN, TOMMY NGUYEN, and ROES 1-100,
on behalf of themselves and all others similarly situated,
Plaintiffs, v. COUNTY OF LOS ANGELES; WILLIAM VILLASENOR; DULCE
SANCHEZ; and STATE AND/OR LOCAL AGENTS LADA DOES 1-10, Defendants,
Case No. 15-cv-583-WQH-NLS (S.D. Cal.), Judge William Q. Hayes of
the U.S. District Court for the Southern District of California
issued an order:
(1) denying Plaintiffs Anh Van Thai, Don Doan, and Tommy
Nguyen's Motion for Relief from Magistrate Judge Order;
(2) denying the Plaintiffs' Motion for Reconsideration of the
Order denying the Plaintiffs' Motion for Class
Certification;
(3) granting the Plaintiffs' Motion for Extension of Time to
File Motion for Class Certification;
(3) the Plaintiffs' Motion for Reconsideration of the Order
denying the Plaintiffs' Motions for Partial Summary
Judgment;
(4) granting Defendant County of Los Angeles' Motion for
Extension of Time to File Answer; and
(5) denying the Plaintiffs' Motion to Strike Defendants'
Answer, Motion for Default Judgment, and Motion for
Reconsideration of the Order denying the Plaintiffs'
Motion to Amend the Complaint.
I. Background
On Feb. 19, 2021, Plaintiffs Anh Van Thai, Don Doan, Tommy Nguyen,
and Roes 1 through 100 filed the operative Fourth Amended Class
Action Complaint against Defendants William Villasenor, Dulce
Sanchez, County of Los Angeles ("County"), and "State and/or Local
Agents LADA Does 1-10." They bring federal constitutional and state
law claims arising from the allegedly unlawful search, seizure, and
harassment of Vietnamese refugees and immigrants who applied for
Social Security benefits.
On June 23, 2021, the Plaintiffs filed a Motion for Class
Certification.
On June 29, 2021, the Plaintiffs filed a Motion for Partial Summary
Judgment "on the issue of the Defendants' liability for violations
of the Plaintiffs' Fourth Amendment rights" under 42 U.S.C. Section
1983.
On July 3, 2021, the Plaintiffs filed a Motion for Extension of
Time to File Motion for Class Certification.
On July 9, 2021, the Plaintiffs filed a Motion for Partial Summary
Judgment "on the issue of the Defendants' liability for violations
of the Plaintiffs' Fifth Amendment rights" under 42 U.S.C. Section
1983.
On Aug. 18, 2021, the parties filed a Joint Motion for
Determination of Discovery Dispute with the Magistrate Judge. The
Defendants requested that the Magistrate Judge compel all the
Plaintiffs to be produced for deposition and compel Plaintiffs Doan
and Nguyen to respond to outstanding discovery requests. The
Plaintiffs requested that the Magistrate Judge reopen class
discovery. Both parties requested sanctions. On Sept. 8, 2021, the
Magistrate Judge issued an Order granting the Defendants' requests
and denying the Plaintiffs' requests.
On Sept. 8, 2021, the Plaintiffs filed a Motion to Amend the
Complaint to remove Tommy Nguyen as a named Plaintiff.
On Sept. 21, 2021, the Plaintiffs filed a Motion for Relief from
Magistrate Judge Order, requesting that the Court "reverses the
Magistrate Order imposing sanctions upon the Plaintiffs' attorney."
On Oct. 4, 2021, the Defendants filed an Opposition to the Motion
for Relief from Magistrate Judge Order. On Oct. 8, 2021, the
Plaintiffs filed a Reply.
On Oct. 14, 2021, the Court issued: (1) an Order denying the
Plaintiffs' Motion for Class Certification and Motion for Extension
of Time to File Motion for Class Certification; and (2) an Order
denying the Plaintiffs' Motion to Amend the Complaint ("Amendment
Order"). On Oct. 29, 2021, the Court issued an Order denying the
Plaintiffs' Motions for Partial Summary Judgment ("Summary Judgment
Order").
On Nov. 13, 2021, the Plaintiffs filed a Motion for Reconsideration
of the Class Certification Order. On Nov. 25, 2021, the Plaintiffs
filed a Motion for Reconsideration of the Summary Judgment Order.
On Nov. 29, 2021, the Defendants filed an Opposition to the Motion
for Reconsideration of the Class Certification Order.
On Dec. 6, 2021, Defendant County filed an Answer to the Fourth
Amended Class Action Complaint and a Motion for Extension of Time
to File Answer. On the same day, the Plaintiffs filed a Reply in
support of the Motion for Reconsideration of the Class
Certification Order.
On Dec. 13, 2021, the Defendants filed an Opposition to the Motion
for Reconsideration of the Summary Judgment Order.
On Dec. 14, 2021, the Plaintiffs filed an Opposition to the Motion
for Extension of Time to File Answer. .
On Dec. 19, 2021, the Plaintiffs filed a Motion to Strike
Defendants' Answer, Motion for Default Judgment, and Motion for
Reconsideration of the Amendment Order.
On Dec. 20, 2021, the Plaintiffs filed a Reply in support of the
Motion for Reconsideration of the Summary Judgment Order.
On Jan. 4, 2022, the Defendants filed an Opposition to the Motion
to Strike Defendants' Answer, Motion for Default Judgment, and
Motion for Reconsideration of the Amendment Order. On Jan. 11,
2022, the Plaintiffs filed a Reply.
II. Discussion
A. Motion for Relief from Magistrate Judge Order
The Plaintiffs move the Court to "correct the order issued by the
Magistrate Judge" and "remove sanctions against their attorney"
pursuant to Rule 72(a) of the Federal Rules of Civil Procedure.
They contend that "sanctions are unjustified pursuant to Rule 37 of
the Federal Rules of Civil Procedure," because the Defendants'
motion to compel was "premature and unnecessary," and the
Plaintiffs "were justified in seeking the Court's clarification of
the scope of discovery prior to undergoing depositions due to their
severe and ongoing illnesses."
The Defendants contend that the Plaintiffs "fail to identify how
the Magistrate's Order for sanctions was clearly erroneous or
contrary to law" under Rule 72(a).
Judge Hayes granted the Defendants' request for sanctions. He holds
that the Magistrate Judge reasonably applied Rule 37 to the facts
as presented by the parties. The Plaintiffs have failed to
demonstrate that any part of the Magistrate Judge's Order was
clearly erroneous or that the Magistrate Judge applied an incorrect
legal standard, misapplied the applicable standard, or failed to
consider an element of the applicable standard. The Plaintiffs'
Motion for Relief from Magistrate Judge Order is denied.
B. Motion for Reconsideration of Class Certification Order, Summary
Judgment Order, & Amendment Order
a. Class Certification Order
The Plaintiffs move the Court to reconsider the Class Certification
Order based on "newly discovered evidence" under Rules 59(e) and
60(b)(2). They contend that the deposition transcript of Defendant
Villasenor, which was obtained after the Court issued the Class
Certification Order on Oct. 14, 2021, demonstrates that the
proposed class "meets the numerosity, typicality and commonality
requirements of Rule 26." They further reassert arguments
previously raised that their attorney is capable of representing
the proposed class and that the Court should extend the time for
the Plaintiffs to file the Motion for Class Certification.
The Defendants contend that the Motion for Reconsideration is
untimely. They contend that the deposition transcript does not
constitute newly discovered evidence because it could have been
discovered with reasonable diligence before the Class Certification
Order was issued. They contend that the deposition does not "offer
new or different facts or circumstances that would support a
finding of an ascertainable or sufficiently numerous class" and
"does nothing to remedy the Court's denial on the basis that the
motion was untimely."
Judge Hayes holds that the Plaintiffs have failed to show that the
deposition transcript of Defendant Villasenor constitutes newly
discovered evidence within the meaning of Rule 60(b) or that the
Plaintiffs exercised due diligence to discover the evidence. The
Plaintiffs did not conduct discovery before the close of class
discovery on Dec. 31, 2020.
Even if the Court were to credit the Plaintiffs' assertion that
they "could not possibly have deposed the Defendants at any time
prior to July 2021," this does not explain why the Plaintiffs
waited until after the Court's Oct. 14, 2021 Class Certification
Order to take Defendant Villasenor's deposition. The Plaintiffs
have failed to show that they could not have deposed Defendant
Villasenor before the Court issued its Class Certification Order by
exercising due diligence. Further, Villasenor's deposition
transcript would not have changed the disposition of the Motion for
Class Certification.
For these reasons, Judge Hayes finds that the Plaintiffs have
failed to show that the "extraordinary remedy" of reconsideration
is warranted in the case. Their Motion for Reconsideration of the
Class Certification Order denied.
b. Summary Judgment Order
The Plaintiffs move the Court to reconsider the Summary Judgment
Order based on "newly discovered evidence" under Rules 59(e) and
60(b)(2). They contend that the deposition transcripts of
Defendants Villasenor and Sanchez, which were obtained after the
Court issued the Summary Judgment Order on Oct. 29, 2021,
"demonstrate that the Defendants acted under color of state law and
thus violated their Fourth and Fourteenth Amendment rights under
Section 1983."
The Defendants contend that the "Plaintiffs have honed in on a
single basis offered by the Court in support of its denial of their
two Motions for Partial Summary Judgment while ignoring all other
reasons supporting the denial." The Defendants further contend that
the "Plaintiffs fail to offer any reasonable explanation as to why
they could not have just waited to file their motions for summary
judgment until conducting some discovery and gathering evidence
they now argue is necessary to support their arguments."
Judge Hayes rules that the Plaintiffs have failed to show that the
deposition transcripts of Defendants Villasenor and Sanchez
constitute newly discovered evidence within the meaning of Rules
59(e) and 60(b) or that the Plaintiffs exercised due diligence to
discover the evidence. As discussed, there is no indication that
the Plaintiffs could not have discovered the depositions of
Defendants Villasenor and Sanchez before the Court's ruling on the
Plaintiffs' Motions for Partial Summary Judgment. Fact discovery
remains open, and there was no set deadline to file dispositive
motions at the time the Court issued its Summary Judgment Order on
Oct. 29, 2021. Further, the deposition transcripts would not have
changed the disposition of the Motions for Partial Summary
Judgment.
For these reasons, Judge Hayes concludes that the Plaintiffs have
failed to show that the "extraordinary remedy" of reconsideration
is warranted in the case. Their Motion for Reconsideration of the
Summary Judgment Order is denied.
c. Amendment Order
The Plaintiffs move the Court to reconsider the Amendment Order
based on "newly discovered evidence" under Rule 60(b)(2). They
contend that the "County's late filing of their answer informed
them that they had the absolute right under FRCP Rule 15(a)(1) to
amend their complaint once before the filing of County's answer."
The Defendants contend that the Motion for Reconsideration is
untimely. They contend that the inadvertent failure to file an
Answer to the Fourth Amendment Complaint is "not 'evidence'" and
could have been discovered "with a simple review of the docket."
Judge Hayes holds that the failure of Defendant County to file a
timely Answer to the Fourth Amended Complaint is not newly
discovered evidence under Rule 60(b). Further, the Plaintiffs were
not entitled to amend the Fourth Amended Class Action Complaint as
of right. In addition, the Plaintiffs filed the Motion to Amend
the Complaint on Sept. 8, 2021, more than 21 days after service of
the County's Rule 12(b) motion on May 10, 2021. Therefore, the
Plaintiffs' Motion for Reconsideration of the Amendment Order is
denied.
C. Motion for Extension of Time to File Answer
Defendant County moves the Court to extend the time for the County
"to file its answer to the Plaintiffs' Fourth Amended Complaint on
Dec. 6, 2021, pursuant to Rule 6(b)(1)(B) and Local Rule 12.1,
which was not timely filed following the Court's Aug. 12, 2021
Order." The County contends that in its counsel's "haste to timely
respond to all outstanding motions and address the pending
discovery dispute, the counsel for County mistakenly believed an
answer to the Fourth Amended Complaint had been timely filed on
County's behalf, but it was not." It contends that the Plaintiffs
would not be prejudiced by an extension of time, because "County
has been participating in litigation as though its answer had
already been filed," the Plaintiffs were already aware of several
of the County's defenses, and discovery remains open.
The Plaintiffs move the Court to strike the County's untimely
Answer and enter default judgment against the County. They contend
that the County's reason for filing an untimely Answer is a
"falsehood" because the County is represented by a large law firm.
They contend that they would be prejudiced by the County's untimely
Answer because the "Plaintiffs would have no time to obtain
discovery relating to the 50 affirmative defenses" alleged in the
Answer.
Judge Hayes finds no indication that the County has failed to act
in good faith. The delay caused by the failure to answer is
minimal, particularly in light of the County's vigorous litigation
of this case since August 2021. The danger of prejudice to the
Plaintiffs is low, given that discovery remained open until March
25, 2022, and the Plaintiffs were unaware that the County failed to
file an answer until the County requested an extension. Further,
there is a strong policy that "cases should be decided upon their
merits whenever reasonably possible."
Judge Hayes concludes that the County's neglect is excusable, and
good cause exists to extend the time for Defendant County to file
its Answer to the Fourth Amended Class Action Complaint. The
Defendant County's Motion for Extension of Time to File Answer is
granted. The Plaintiffs' Motion to Strike Defendants' Answer and
Motion for Default Judgment is denied.
III. Conclusion
In light of the foregoing, Judge Hayes denied the Plaintiffs'
Motion for Relief from Magistrate Judge Order; Motion for
Reconsideration of Class Certification Order; Motion for
Reconsideration of Summary Judgment Order; and Motion to Strike
Defendants' Answer, Motion for Default Judgment, and Motion for
Reconsideration of Amendment Order.
Judge Hayes granted the Plaintiffs' Ex Parte Motions for Leave to
Exceed Page Limit and Defendant County's Motion for Extension of
Time to File Answer.
A full-text copy of the Court's April 5, 2022 Order is available at
https://tinyurl.com/2swu24um from Leagle.com.
MARKSMEN LANDSCAPING: Henry Suit Removed to N.J. Dist. Ct.
----------------------------------------------------------
The case styled ARCHIE HENRY, MAURICE GERALDS, KEVIN MERRITT, TARON
WILSON, individually and on behalf of all others similarly
situated, Plaintiffs v. ANTHONY MARKS, FRANK MARKS, SCOTT MARKS,
MARKSMEN LANDSCAPING, LLC, ABC COMPANIES, 1-10, and JOHN DOES 1-10,
Defendants, Case No. CAM-L-659-22, was removed from the Superior
Court of the State of New Jersey for the County of Camden to the
United States District Court for the District of New Jersey on
April 11, 2022.
The Clerk of Court for the District of New Jersey assigned Case No.
1:22-cv-02101 to the proceeding.
The complaint alleges multiple causes of action, including
allegations under the Coronavirus Aid, Relief, and Economic
Security Act, codified as the Coronavirus Economic Stabilization
Act.
Marksmen Landscaping, LLC is a New Jersey-based company which
provides landscape design, planning and installation, lawn care,
and outdoor lighting services.[BN]
The Defendants are represented by:
John P. Quirke, Esq.
JOHN P. QUIRKE AND ASSOCIATES, LLC
376 Harlingen Rd.
Belle Mead, NJ 08502
Telephone: (908) 829-4060
Facsimile: (908) 847-0287
ME NORTHERN BAY: Farris Files Suit in Cal. Super. Ct.
-----------------------------------------------------
A class action lawsuit has been filed against ME Northern Bay LLC.
The case is styled as Nevisha Gabriella Farris, individually and on
behalf of those similarly situated v. ME Northern Bay LLC, Case No.
SCV-270512 (Cal. Super. Ct., Sonoma Cty., April 1, 2022).
The case type is stated as "Unlimited Other Employment."
ME Northern Bay LLC doing business as Massage Envy --
https://www.massageenvy.com/ -- is an American massage and skin
care national franchisor, based in Scottsdale, Arizona.[BN]
The Plaintiff is represented by:
Jessica Lynn Campbell, Esq.
Samuel Alan Wong, Esq.
Kashif Haque, Esq.
AEGIS LAW FIRM PC
9811 Irvine Center Dr., Ste. 100
Irvine, CA 92618-4375
Phone: 949-379-6250
Fax: 949-379-6251
Email: swong@aegislawfirm.com
khaque@aegislawfirm.com
MERCEDES-BENZ USA: Judge Tosses Transmission Class Action
---------------------------------------------------------
David A. Wood, writing for CarComplaints.com, reports that a
Mercedes-Benz transmission class action lawsuit has been dismissed
after a federal judge ruled the plaintiff couldn't adequately plead
there weren't adequate remedies at law.
California plaintiff Terry Hamm sued over his now 16-year-old
Mercedes-Benz CLK350 which had three previous owners.
He purchased his 2006 Mercedes CLK350 in December 2012 from a
Toyota dealership, but he claims the 722.9 7G-Tronic transmission
was defective from the time it was manufactured, as are all 722.9
7G-Tronic transmissions in Mercedes vehicles sold in California.
The plaintiff alleges the Mercedes transmission typically begins
having problems outside the 4-year/50,000-mile warranty, with the
primary problem of the vehicle entering limp mode while driving.
The class action lawsuit says a driver cannot accelerate or shift
gears once the Mercedes transmission enters limp mode.
Hamm alleges his vehicle suffered the same problem which caused him
to pay $1,051.18 to replace the transmission's conductor plate and
to reprogram the valve body.
Hamm tried to get Mercedes to pay the cost for transmission repairs
but he was told the vehicle was long past its warranty period. The
plaintiff argues Mercedes should have paid for the transmission
repairs even though the warranty expired before he purchased the
vehicle.
The plaintiff says the 722.9 7G-Tronic transmission fails when the
conductor plate and valve body fails and sends the Mercedes
transmission into limp mode while driving at any speed. The
plaintiff also alleges a Mercedes owner is looking at a huge
transmission repair or replacement expense, or parking the
undrivable vehicle.
According to the Mercedes transmission class action, the automaker
knew about transmission issues but concealed the defects from
consumers which forced owners to overpay for their vehicles.
Mercedes Transmission Class Action Lawsuit Dismissed
Before the judge dismissed the last remaining arguments from the
plaintiff, Mercedes had already succeeded in convincing the court
to dismiss certain claims.
In its motion to dismiss the transmission class action lawsuit,
Mercedes referenced its warranty data related to 722.9 7G-Tronic
transmissions, allegedly showing the vast majority of owners didn't
report any transmission problems while the vehicles were under
their warranties.
According to Mercedes, the 0.13% warranty claim rate shows the
transmissions were certainly not defective from the time they were
built.
Mercedes also reminded the judge how the plaintiff wanted to
represent other California owner of vehicles equipped with the
722.9 transmission, yet his history with the vehicle wasn't common
to other Mercedes owners.
Mr. Hamm had purchased the 7-year-old used vehicle not from a
Mercedes dealer but from a Toyota dealership. This allegedly means
the plaintiff didn't have any direct dealings with Mercedes-Benz at
all. And even the plaintiff admitted he had "only glanced at
unaffiliated third-party websites" before buying the vehicle.
By the end, the judge ruled "claims for equitable relief fail as a
matter of law because he does not and cannot plead facts showing he
lacks an adequate remedy at law. Plaintiff's SAC [second amended
complaint] does not allege facts showing he lacks an adequate
remedy at law."
The Mercedes transmission class action lawsuit was filed in the
U.S. District Court for the Northern District of California, San
Jose Division: Terry Hamm, et al., v. Mercedes-Benz USA, LLC.
The plaintiffs are represented by the Katriel Law Firm, Braun Law
Group, P.C., and Kantrowitz, Goldhamer & Graifman, P.C. [GN]
MONONGALIA HEALTH: Fails to Protect Patients' Info, Silbaugh Says
-----------------------------------------------------------------
RACHEL SILBAUGH, ROBIN STRIPLING AND MICHAEL STRIPLING individually
and on behalf of all others similarly situated Plaintiff v.
MONONGALIA HEALTH SYSTEM, INC., MONONGALIA COUNTY GENERAL HOSPITAL
COMPANY, STONEWALL JACKSON MEMORIAL HOSPITAL COMPANY, AND PRESTON
MEMORIAL CORPORATION, Defendants, Case No. 1:22-cv-00033-TSK (N.D.
W.Va., April 12, 2022) arises from the Defendants' failure to
properly secure and safeguard protected health information as
defined by the Health Insurance Portability and Accountability Act,
medical information, and other personally identifiable information,
for failing to comply with industry standards to protect
information systems that contain that information, and for failing
to provide timely, accurate, and adequate notice to Plaintiffs and
other Class Members that their information had been compromised.
On February 28, 2022, Mon Health announced a security incident that
occurred in December 2021, involving patient medical and personally
identifiable information. The security incident was wide-reaching
and compromised the information of at least 492,861 individuals,
according to the submission Mon Health made to the U.S. Secretary
of Health and Human Services at the Office for Civil Rights.
As a result of Mon Health's failure to implement and follow basic
security procedures, Plaintiffs' and Class Members' medical
information and other personally identifiable information is now in
the hands of criminals, says the complaint. The Plaintiffs and
Class Members now and will forever face a substantial increased
risk of identity theft. Consequently, Plaintiffs and Class Members
have had to spend, and will continue to spend, significant time and
money in the future to protect themselves due to Mon Health's
failures, adds the complaint.
The Plaintiff was a patient of Mon Health. Plaintiff's information
was disclosed without authorization to an unknown third party as a
result of the data breach.
Monongalia Health System, Inc. is the "parent" company of Mon
Health Medical Center (formerly Monongalia County General Hospital
Company), Mon Health Preston Memorial Hospital and Mon Health
Stonewall Jackson Memorial Hospital. Mon Health provides
personalized medical care and service to North Central West
Virginia, southwestern Pennsylvania, and the surrounding
region.[BN]
The Plaintiff is represented by:
Mark E. Troy, Esq.
MORGAN & MORGAN
222 Capitol Street, Suite 200A
Charleston, WV 25301
Telephone: (304) 345-1122
Facsimile: (304) 414-5692
E-mail: mtroy@forthepeople.com
- and -
Gary M. Klinger, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
227 West Monroe Street, Suite 2100
Chicago, IL 60606
Telephone: (866) 252-0878
E-mail: gklinger@milberg.com
- and -
David Lietz, Esq.
MILBERG COLEMAN BRYSON PHILLIPS
GROSSMAN, PLLC
5335 Wisconsin Avenue NW Suite 440
Washington, DC 20015-2052
Telephone: (866) 252-0878
E-mail: dlietz@milberg.com
- and -
Jean S. Martin, Esq.
Francesca Kester, Esq.
MORGAN & MORGAN COMPLEX LITIGATION GROUP
201 N. Franklin Street, 7th Floor
Tampa, FL 33602
Telephone: (813) 223-5505
Facsimile: (813) 223-5402
E-mail: jeanmartin@forthepeople.com
MUTUAL OF OMAHA INSURANCE: Jones Files TCPA Suit in D. Maryland
---------------------------------------------------------------
A class action lawsuit has been filed against Mutual of Omaha
Insurance Company. The case is styled as Keyonna Jones,
individually and on behalf of a class of all persons and entities
similarly situated v. Mutual of Omaha Insurance Company, Case No.
1:22-cv-00905-ELH (D. Md., April 13, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Mutual of Omaha -- https://www.mutualofomaha.com/ -- is a trusted
provider of Medicare Supplement Insurance, Life Insurance, Finance
and Mortgages.[BN]
The Plaintiff is represented by:
John Thomas McGowan , Jr, Esq.
KINNER & MCGOWAN PLLC
413 East Capitol St. SE, First Floor
Washington, DC 20002
Phone: (202) 846-7148
Email: jmcgowan@kinnermcgowan.com
MVP EVENT PRODUCTIONS: Bates Files Suit in Cal. Super. Ct.
----------------------------------------------------------
A class action lawsuit has been filed against MVP Event
Productions, LLC, et al. The case is styled as Kali Bates, on
behalf of all others similarly situated v. MVP Event Productions,
LLC, Legends Hospitality, LLC, Does 1-20, Case No.
34-2022-00317653-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., April
1, 2022).
The case type is stated as "Other Employment - Civil Unlimited".
MVP Event -- https://mvpeventstaffing.com/ -- provides food and
beverage staffing for stadiums, arenas, concerts, music festivals
and convention centers.[BN]
The Plaintiff is represented by:
Timothy B. Del Castillo, Esq.
CASTLE LAW: CA EMPLOYMENT COUNSEL, PC
2999 Douglas Blvd., Ste. 180
Roseville, CA 95661-4219
Phone: 916-245-0122
Email: tdc@castleemploymentlaw.com
MYLAN INC: Court Narrows Claims in EpiPen Direct Purchaser Suit
---------------------------------------------------------------
In the case, In re: EpiPen Direct Purchaser Litigation. THIS
DOCUMENT RELATES TO: ALL ACTIONS, File No. 20-cv-0827 (ECT/JFD) (D.
Minn.), Judge Eric C. Tostrud of the U.S. District Court for the
District of Minnesota granted in part and denied in part the PBM
Defendants' Motion to Dismiss.
I. Background
The matter is the second Motion to Dismiss the putative class
action alleging a conspiracy to fix the prices of EpiPen, an
epinephrine auto-injector ("EAI") with a ninety-plus percent market
share.
The Plaintiffs are two drug wholesalers, Rochester Drug
Co-Operative, Inc., and Dakota Drug, Inc., that purchase Epi-Pens
directly from the manufacturers of the devices, Defendants Mylan
Inc. and Mylan Specialty L.P. (collectively, "Mylan"). The
Plaintiffs allege that Mylan paid bribes and kickbacks to a group
of pharmacy benefit managers -- referred to collectively as CVS
Caremark, Express Scripts, and OptumRx (or "PBM Defendants") -- to
ensure that Mylan could raise the price of the EpiPen while keeping
a monopoly share of the market.
The case involves drug formularies, which are lists of drugs that
health insurance companies agree to cover for their insureds. PBMs
act as the middlemen in the prescription-drug process, not
purchasing or selling those drugs but rather performing functions
such as (1) negotiating with manufacturers to obtain rebates that
offset the list prices of drugs; and (2) "designing, developing and
managing formularies and formulary compliance programs." Drug
manufacturers are understandably eager to tap into health insurers'
formularies, given the number of consumers those plans cover. And
because formularies set the specific drugs that plan participants
can receive, they can and often do favor some drugs over others.
The Plaintiffs argue that Mylan's eagerness for preferential
placement on formularies led Mylan to pay substantial kickbacks, or
bribes, to the Defendant PBMs in exchange for EpiPen's preferential
placement on the formularies these PBMs administered. According to
the Plaintiffs, rather than lowering costs for their clients as
PBMs claim to do, these concerted activities ultimately doubled or
nearly tripled the list price of EpiPens. While such price
increases might have been expected to lead drug wholesalers such as
the Plaintiffs to purchase EpiPen's competitors' products, the
Plaintiffs claim that the PBMs bolstered Mylan's market share by
not including competitive products on their formularies or giving
those products less preferential formulary placement in exchange
for the kickbacks.
The PBMs benefitted from EpiPen's rising prices because the alleged
kickbacks they received were generally calculated as a percentage
of the EpiPen's wholesale price. The Plaintiffs also allege that
whereas PBMs had historically passed savings like these on to their
clients, the PBM Defendants began to keep more of the increased
fees for themselves. Mylan, in turn, used its list-price increases
to recoup the costs of its increasing payments to the PBMs, and its
operating profit increased by almost 150% between 2012 and 2016.
The Plaintiffs, who paid the list price for EpiPens, were left to
bear the burden of these steep price increases.
After the Defendants' initial motions to dismiss were granted in
part and denied in part, the Plaintiffs amended their complaint.
The First Amended and Consolidated Class Action Complaint purports
to raise four claims against the original Defendants as well as two
newly named Defendants on behalf of a putative class. Counts One
and Two assert that all the Defendants violated the Racketeer
Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C.
Section 1962(c). Count Three alleges that Mylan violated the
Sherman Antitrust Act, 15 U.S.C. Section 2. Count Four contends
that all Defendants violated the Sherman Act's Section 1.
The Defendants once again move to dismiss many of the Plaintiffs'
claims. They reassert some arguments raised previously, namely that
the Plaintiffs' antitrust claims are time-barred and that the
claims against the PBMs' corporate parent entities should be
dismissed, and they again challenge some of the predicate acts that
form the basis of the Plaintiffs' RICO claims. The Defendants also
seek dismissal of the Plaintiffs' newly raised claim under Section
1 of the Sherman Act, contending that the Plaintiffs have not
plausibly alleged the elements of an antitrust conspiracy. The
Defendants do not again move to dismiss the Section 2 claim (other
than arguing that it may be untimely), and their arguments
regarding predicate acts do not mandate dismissal of the RICO
claims in their entirety.
II. Discussion
Judge Tostrud opines that at the outset, there is no dispute that
the previous determination regarding the timeliness of the
Plaintiffs' Sherman Act Section 2 claim applies with equal force to
the newly raised Sherman Act Section 1 claim. The prior order found
that the Sherman Act's four-year limitations period begins to run
when the alleged wrongful act occurs, not when the Plaintiff
becomes aware of the injury. The Plaintiffs allege that the
Defendants' scheme began in 2012, and thus the initial antitrust
injury, at least, falls outside the statute of limitations.
The previous decision also made clear that the Plaintiffs had not
sufficiently pleaded equitable tolling for the Plaintiffs' original
Sherman Act claim, and that holding applies equally to the newly
asserted antitrust claim. Because the Plaintiffs could save some
aspects of their Sherman Act claims with evidence of continuing
violations, a final decision on the timeliness of the antitrust
claims will be postponed until such discovery can be taken. Thus,
as before, until summary judgment, "the statute of limitations does
not provide a basis to dismiss the Plaintiffs' antitrust claims in
their entirety." This aspect of the motion will be denied without
prejudice.
The remainder of the motion to dismiss, however, will be granted,
Judge Tostrud rules. He says, the Plaintiffs have not alleged a
plausible basis for holding either the previously dismissed or
newly named corporate parents of the PBMs liable. Nor have the
Plaintiffs plausibly asserted their Sherman Act Section 1 claim.
Finally, the Plaintiffs' invocation of the Anti-Kickback Statute
and West Virginia's bribery statute as violations of the Travel Act
and therefore actionable RICO predicates fails because these
statutes define bribery more broadly than does the Travel Act.
III. Conclusion
Based on the foregoing and all of the files, records, and
proceedings therein, Judge Tostrud granted in part and denied in
part the PBM Defendants' Motion to Dismiss as follows:
1. The motion is granted as to Defendants CVS Health
Corporation, Express Scripts Holding Company, United Health Group,
Inc., United Healthcare Services, Inc., United Healthcare, Inc.,
Optum Inc., and OptumRx Holdings, LLC. The claims against those
Defendants are dismissed with prejudice.
2. The motion is granted as to the Plaintiffs' claim under 15
U.S.C. Section 1 and that claim is dismissed with prejudice.
3. The motion is granted as to the Plaintiffs' reliance on the
Anti-Kickback Statute and W. Va. Code Section 47-11A-3 to
constitute violations of the Travel Act for the RICO claims.
4. The motion is denied without prejudice as to the timeliness
of the Plaintiffs' Sherman Act claims.
A full-text copy of the Court's April 5, 2022 Opinion & Order is
available at https://tinyurl.com/2p83vzen from Leagle.com.
Noah Silverman -- nsilverman@garwingerstein.com -- Bruce E.
Gerstein -- bgerstein@garwingerstein.com -- Jonathan M. Gerstein,
and Joseph Opper, Garwin Gerstein & Fisher LLP, New York, NY; David
F. Sorenson -- dsorensen@bm.net -- Caitlin G. Coslett , Andrew C.
Curley, and John Parron, Berger Montague PC, Philadelphia, PA; E.
Michelle Drake -- rpaul@bm.net -- Berger & Montague PC,
Minneapolis, MN; David S. Golub -- dgolub@sgtlaw.com -- and Steven
Bloch -- sbloch@sgtlaw.com -- Silver Golub & Teitell LLP, Stamford,
CT; Susan C. Segura -- ssegura@ssrllp.com -- David C. Raphael, Jr.
-- draphael@ssrllp.com -- and Erin R. Leger, Smith Segura &
Raphael, LLP, Alexandria, LA; Russell Chorush and Eric Enger, Heim
Payne & Chorush LLP, Houston, TX; Christopher M. First, Houston,
TX; Joseph T. Lukens -- jlukens@faruqilaw.com -- and Peter Kohn --
pkohn@faruqilaw.com -- Faruqi & Faruqi, LLP, Philadelphia, PA;
Stuart Des Roches -- stuart@odrlaw.com -- Andrew Kelly , Amanda
Leah Hass, Chris Letter , Dan Chiorean , and Thomas Maas, Odom &
Des Roches, LLC, New Orleans, LA, for Plaintiffs Rochester Drug
Co-Operative, Inc., and Dakota Drug, Inc.
Adam K. Levin -- adam.levin@hoganlovells.com -- Anthony Ufkin,
Carolyn A. DeLone, Christine A. Sifferman, Elizabeth Jose, Justin
Bernick, Kathryn Marshall Ali, Charles A. Loughlin, and David M.
Foster, Hogan Lovells US LLP, Washington, DC; Peter H. Walsh, Hogan
Lovells US LLP, Minneapolis, MN; and Katherine Booth Wellington,
Hogan Lovells US LLP, Boston, MA, for Defendants Mylan Inc. and
Mylan Specialty L.P.
Adithi S. Grama -- agrama@wc.com -- Craig D. Singer, Daniel M.
Dockery, Enu A. Mainigi, Williams & Connolly LLP, Washington, DC,
and John W. Ursu and Isaac B. Hall, Faegre Drinker Biddle & Reath
LLP, Minneapolis, MN, for Defendants Caremark PCS Health LLC,
Caremark LLC, Caremark Rx LLC, and CVS Caremark Part D Services,
LLC.
Donald G. Heeman -- dheeman@spencerfane.com -- Jessica J. Nelson,
and Randi J. Winter, Spencer Fane LLP, Minneapolis, MN; Jonathan
Gordon Cooper, Michael John Lyle, Eric Christopher Lyttle, and
Samel Johnson, Quinn Emanuel Urquhart & Sullivan LLP, Washington,
DC, for Defendants Express Scripts Inc. and Medco Health Solutions
Inc.
Kadee Jo Anderson -- kadee.anderson@stinson.com -- and Andrew
Glasnovich, Stinson LLP, Minneapolis, MN; Elizabeth Broadway Brown,
David Andrew Hatchett, Bradley Harder, and Jordan Elise Edwards,
Alston & Bird LLP, Atlanta, GA; Brian David Boone and Brandon C.E.
Springer, Alston & Bird LLP, Charlotte, NC, for Defendants OptumRX
Inc. and United Healthcare, Inc.
NATIONAL MATH AND SCIENCE: Oche Files Suit in N.D. Texas
--------------------------------------------------------
A class action lawsuit has been filed against National Math and
Science Initiative. The case is styled as Tracy Oche, individually
and on behalf of all others similarly situated v. National Math and
Science Initiative, Case No. 3:22-cv-00834-X (N.D. Tex., April 13,
2022).
The nature of suit is stated as Other Contract for Breach of
Contract.
The National Math and Science Initiative -- https://www.nms.org/ --
is a non-profit organization based in Dallas, Texas, that launched
in 2007.[BN]
The Plaintiff is represented by:
Joe Kendall, Esq.
KENDALL LAW GROUP PLLC
3811 Turtle Creek Blvd., Suite 1450
Dallas, TX 75219
Phone: (214) 744-3000
Fax: (214) 744-3015
Email: jkendall@kendalllawgroup.com
NATIONSTAR MORTGAGE: Kushner Suit Removed to N.D. Ohio
------------------------------------------------------
The case styled as Paul Kushner, individually and on behalf of all
others similarly situated v. Nationstar Mortgage LLC d/b/a Mr.
Cooper, Case No. CV-22-960358 was removed from the Cuyahoga County
of Common Pleas, to the U.S. District Court for the Northern
District of Ohio on April 13, 2022.
The District Court Clerk assigned Case No. 1:22-cv-00598 to the
proceeding.
The nature of suit is Other Contract for Account Receivable.
Nationstar Mortgage LLC doing business as Mr. Cooper --
https://www.mrcoopergroup.com/ -- is one of the largest home loan
servicers in the country focused on delivering a variety of
servicing and lending products, services and technologies.[BN]
The Plaintiff appears pro se.
The Defendant is represented by:
K. Issac deVyver, Esq.
MCGUIRE WOODS - PITTSBURGH
260 Forbes Avenue, Ste. 1800
Pittsburgh, PA 15222
Phone: (412) 667-7988
Fax: (412) 667-7976
Email: kdevyver@mcguirewoods.com
NEW JERSEY: Court Dismisses Clark's Petition for Release From Jail
------------------------------------------------------------------
In the case, JOHN CLARK, Petitioner v. EUGENE CALDWELL, Respondent,
Civ. No. 21-16721 (NLH) (D.N.J.), Judge Noel L. Hillman of the U.S.
District Court for the District of New Jersey dismissed Clark's
habeas corpus petition seeking release from allegedly
unconstitutional conditions of confinement at the Cumberland County
Jail.
Petitioner Clark, among others, filed a civil rights complaint
under 42 U.S.C. Section 1983 seeking injunctive relief,
individually and on behalf of the class of similarly situated
present and future detainees in the Cumberland County Jail, based
on the conditions in the Jail during the COVID-19 pandemic. As part
of those proceedings, the Court conducted a series of evidentiary
hearings in April and May 2021 in which it heard testimony from
several pretrial detainees at the Jail, including the Petitioner.
The Petitioner filed a separate civil rights action for damages on
June 21, 2021.
The Petitioner submitted a letter to the Court in his damages
action alleging the Jail was "a very unhealthy, unsafe" environment
due to COVID-19 and retaliation from jail officials. He asked the
Court to accept the letter as a habeas corpus petition and to
"prepare a writ for his release from this jail as he is a
non-violent, pretrial detainee with 27 months in jail."
As that relief could not be granted in an action under Section
1983, the Court ordered the Clerk to open this action as a habeas
corpus proceeding under 28 U.S.C. Section 2241. On Sept. 30, 2021,
the Court ordered Respondent to answer the petition or file a
motion to dismiss on jurisdiction grounds within 30 days and mailed
the petition to the Warden of the Cumberland County Jail and the
Cumberland County Prosecutor's Office.
The Respondent did not file a response within the time set by the
Court. On Dec. 9, 2021, the Court issued an order directing the
Respondent to show cause by Dec. 30, 2021 why the petition should
not be granted and why sanctions should not be imposed. The order
was again mailed to the Warden of the Cumberland County Jail and
the Cumberland County Prosecutor's Office. Again, the Court did not
receive any response.
On Jan. 7, 2022, the Court entered an order of civil contempt
imposing a $1,000 per day fine based on the Respondent's repeated
failures to comply with Court orders. The Respondent filed a
purported "answer" to the petition 17 days later on Jan. 24, 2022.
Shortly thereafter, the Petitioner filed a motion for the
appointment of pro bono counsel under the Criminal Justice Act, 18
U.S.C. Section 3006A.
On March 9, 2022, the Court granted the Petitioner's request for
counsel. It further noted that the Respondent's filing did not
comply with the Rules Governing Section 2254 Proceedings (made
applicable by Rule 1(b)) and struck the filing. The Court ordered
the Respondent to submit a new response within 30 days.
The counsel for the Petitioner entered an appearance on March 15,
2022. In a letter dated March 31, 2022, the counsel wrote: "Shortly
after receiving my appointment, I began reviewing the case file and
researching the law. I attempted to visit Mr. Clark but was advised
that the Cumberland County Jail was not open for in person
visitation. On or around March 19, 2022, I received a letter
addressed to Your Honor from Mr. Clark. In addition to his renewed
complaints about his living conditions, it advised that Mr. Clark
had recently pled guilty to his pending state charges. I contacted
the Cumberland County Jail and was informed that Mr. Clark was no
longer incarcerated. It is my understanding that Mr. Clark is now
at home waiting to be sentenced. In light of this development, I
believe Mr. Clark's habeas petition to be moot and I respectfully
asks to be relieved as counsel."
The Respondent does not object to counsel's request.
Judge Hillman states that district courts have jurisdiction under
Section 2241 to issue a writ of habeas corpus before a criminal
judgment is entered against an individual in state court. This
includes claims that pretrial conditions of confinement violate the
Constitution.
The Petitioner filed the habeas corpus petition seeking release
from allegedly unconstitutional conditions of confinement at the
Cumberland County Jail. In granting the Petitioner's request for
the appointment of counsel, the Court found that "the petition
raises nonfrivolous claims that the conditions at the Cumberland
County Jail violate Petitioner's constitutional rights.
Judge Hillman has conducted several hearings and heard testimony
from several detainees at the jail, including the Petitioner, on
the underlying conditions in a related matter." A guilty plea to
the charges serving as the basis for his detention moots his
Section 2241 habeas petition, however. Although it appears that
judgment has yet to be entered, the Petitioner is no longer
detained in the Jail or subject to the alleged conditions. If a
case no longer presents a live case or controversy, the case is
moot, and the federal court lacks jurisdiction to hear it.
The Petitioner's guilty plea and release from the Jail moots his
Section 2241 habeas petition challenging his pretrial detention.
Judge Hillman dismissed the petition accordingly. To the extent a
certificate of appealability is required, he declined to issue one
because reasonable jurists would agree that the petition is moot.
An appropriate Order will be entered.
A full-text copy of the Court's April 6, 2022 Order is available at
https://tinyurl.com/2p8rjmeb from Leagle.com.
Stanley O. King, Esq., King Law Office LLC, in Woodbury, New
Jersey, Attorneys for the Petitioner.
Joseph J. DePalma, Esq. -- depalma@litedepalma.com -- Susana Cruz
Hodge, Esq. -- scruzhodge@litedepalma.com -- Victor A. Afanador,
Esq. -- vafanador@litedepalma.com -- Christopher Ali Khatami, Esq.,
Lite DePalma Greenberg & Afanador, LLC, in Newark, New Jersey,
Attorneys for the Respondent.
NVA FINANCIAL SERVICES: Loope Files TCPA Suit in N.D. New York
--------------------------------------------------------------
A class action lawsuit has been filed against NVA Financial
Services, LLC. The case is styled as Robert Loope, individually and
on behalf of all others similarly situated v. NVA Financial
Services, LLC, Case No. 5:22-cv-00349-GTS-ML (N.D.N.Y., April 13,
2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
NVA Financial Services LLC is located in Manassas, Virginia and is
part of the Activities Related to Credit Intermediation
Industry.[BN]
The Plaintiff is represented by:
James R. Peluso, Jr., Esq.
DREYER BOYAJIAN LLP
75 Columbia Street
Albany, NY 12210
Phone: (518) 463-7784
Fax: (518) 463-4039
Email: jpeluso@dblawny.com
OCWEN LOAN: Judgment Awarding Damages in Bishop Suit Reversed
-------------------------------------------------------------
In the case, OCWEN LOAN SERVICING, LLC, Appellant v. CHARLES E.
BISHOP, Appellee, Case No. 4D21-69 (Fla. Dist. App.), the District
Court of Appeal of Florida for the Fourth District issued an
Opinion reversing the trial court's final judgment entered in favor
of the Appellee.
I. Introduction
Appellant Ocwen is the servicer of a promissory note and mortgage
executed by Appellee, Bishop, as the borrower of funds secured by
his residential property. The servicer appeals from a judgment
awarding damages to the borrower on his breach of contract and
fraud claims arising from disputed escrow account charges imposed
after the borrower failed to provide proof to the servicer that he
had procured and was timely paying for insurance on the mortgaged
property as the mortgage required.
II. Discussion
A. Misinterpretation of the Mortgage's Escrow Waiver Provision
The mortgage contains an addendum "conditionally" waiving the
collection of escrow funds, "subject to" any "failure of the
borrower to pay the escrow items," or failure by the borrower to
provide evidence that he paid the required "insurance premiums, and
any other escrow items." The addendum provides that non-compliance
with the waiver's conditions could result in the waiver becoming
"null and void and of no further effect" at the "lender's option."
The addendum allows for the servicer's forced placement of
insurance on the mortgaged property as a remedy for the borrower's
failure to provide proof of the required insurance.
The escrow waiver provided the borrower with the benefit of not
having to pay escrow expenses, including property insurance, as
part of his monthly mortgage payment, conditioned on his direct
procurement and timely payment of those expenses by means other
than an escrow account with the servicer.
Both parties brought summary judgment motions asserting the absence
of any facts in dispute and urging the trial court to interpret the
escrow waiver provision as a matter of law. The borrower argued
that any revocation of the escrow waiver had to be by mutual
written agreement and that the notice revoking the waiver was
insufficient. The trial court entered partial summary judgment in
favor of the borrower's interpretation of the mortgage.
The Court of Appeal opines that the borrower's argument is
inconsistent with the plain and unambiguous text of the escrow
waiver provision in the mortgage. While the provision does provide
that "waiver may only be in writing," it is clear from the
immediately preceding sentence that the "writing" requirement
corresponds solely to the waiver of escrow funds. The requirement
does not apply to the servicer's ability to revoke the waiver based
on the borrower's non-compliance with the waiver's conditions.
Nothing in the mortgage required the revocation to occur by mutual
written agreement as the borrower contends. The relevant provision
provides only that notice be provided to the borrower of the
servicer's intent to exercise its unilateral option of revoking the
escrow waiver when the borrower's non-compliance supports
revocation.
The servicer's notices in the case well exceeded the substantial
compliance standard. The notices adequately informed the borrower
of the consequences of failing to provide acceptable proof of
insurance coverage on the property, including the available
permissive remedy of revocation of the escrow waiver.
Accordingly, the Court of Appeal reverses the final judgment
because the trial court's misinterpretation of the mortgage's
escrow waiver provision resulted not only in the erroneous entry of
partial summary judgment in borrower's favor, but also in a bench
trial that was not conducted in accordance with a proper
interpretation of the mortgage.
B. Renewed Motion to Add the Class Action Settlement Defense
The trial court also erred when it denied the servicer leave to
amend its answer to add a potentially dispositive affirmative
defense asserting that the borrower's claims had been released by a
prior class action settlement barring claims regarding the forced
placement of property insurance on the mortgaged property, the
Court of Appeal opines. It finds that the servicer sought to amend
its affirmative defenses only once to add the potentially
dispositive class action settlement defense. The servicer timely
renewed the request after a continuance of the trial was granted
which provided the borrower with more than six months to prepare
his case. The borrower was well-aware of the defense by the time
the servicer filed its renewed motion because the servicer had
asserted the defense in its prior summary judgment motion.
Granting the servicer's renewed motion seeking leave to amend its
answer to add the potentially dispositive class action settlement
defense would have resulted in no prejudice or surprise to the
borrower. Hence, the trial court's denial of the renewed motion
therefore amounted to an abuse of discretion.
III. Conclusion
The final judgment entered in favor of the borrower is reversed.
The cause is remanded to the trial court with directions that the
partial summary judgment entered in favor of the borrower be
vacated. On remand, the trial court will enter partial summary
judgment in favor of the servicer on the interpretation of the
mortgage's escrow waiver provision consistent with this opinion.
The trial court will also grant the servicer leave to amend its
answer to add the potentially dispositive class action settlement
defense.
The Court of Appeal concludes by observing that certain of the
borrower's claimed damages -- i.e., those representing his loss of
investment profits purportedly caused by the servicer's actions --
appear to have been erroneously awarded as they were too
speculative and not demonstrated to have been a foreseeable
consequence of the servicer's claimed breach of the terms of the
residential mortgage. As it explained in Forest's Mens Shop v.
Schmidt, 536 So.2d 334 (Fla. 4th DCA 1988), "lost future profits
based upon a breach of contract or other wrong" must be "a direct
result of the defendant's actions" and be capable of being
"established with reasonable certainty."
The Court of Appeal's reversal, however, of the trial court's final
judgment for the reasons set forth in its Opinion renders it
unnecessary for it to reach either the lost investment profits
issue or the separate issue of the failure to prove fraud conceded
by the borrower in his brief.
Reversed and remanded with instructions.
A full-text copy of the Court's April 6, 2022 Opinion is available
at https://tinyurl.com/y8xhc7en from Leagle.com.
Nicholas S. Agnello -- nagnello@burr.com -- of Burr & Forman LLP,
in Fort Lauderdale, Florida, for the Appellant.
Kenneth D. Cooper -- kcooper543@aol.com -- in Fort Lauderdale,
Florida, for the Appellee.
PAPA HOTEL: Mendez Files FLSA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Papa Hotel Corp., et
al. The case is styled as Areli Lucero Mendez, on behalf of all
others similarly situated v. Papa Hotel Corp. d/b/a Jet Set Hotel;
Whitestone Hospitality LLC d/b/a 7 Days Hotel; Harry Kumar, as an
individual; Pramod Chadha, as an individual; Vinod Kumar, as an
individual; Case No. 1:22-cv-03055-VEC (S.D.N.Y., April 13, 2022).
The lawsuit is brought over alleged violation of the Fair Labor
Standards Act.
Papa Hotel Corp is doing business as Jet Set Hotel --
https://jetsethotelbronx.com/ -- is The Bronx's premier hotel with
30 spacious and comfortable rooms available for overnight and
hourly stay.[BN]
The Plaintiff is represented by:
James Patrick Peter O'Donnell, Esq.
Roman Mikhail Avshalumov, Esq.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Phone: (718) 263-9591
Email: jamespodonnell86@gmail.com
avshalumovr@yahoo.com
PEPSICO INC: Poulson Sues Over Unpaid Wages After Kronos Hack
-------------------------------------------------------------
ALLISON POULSON, individually and on behalf of all others similarly
situated v. PEPSICO, INC. d/b/a PFS and FRITO-LAY, INC., Case No.
1:22-cv-00725-RLY-DML (S.D. Ind., April 11, 2022) arises from the
Defendants' failure to pay wages, including proper overtime, for
all hours worked in violation of the Indiana Minimum Wage Law and
the Indiana Wage Payment Statute.
According to the complaint, PepsiCo and Frito-Lay's timekeeping and
payroll systems were affected by the hack of Kronos in 2021, like
many other companies across the United States. That hack led to
problems in timekeeping and payroll throughout PepsiCo and
Frito-Lay's organization. As a result, PepsiCo and Frito-Lay's
workers who were not exempt from the overtime requirements under
Indiana law, were not paid for all hours worked or were not paid
their proper overtime premium after the onset of the Kronos hack,
says the suit.
The Plaintiff has worked for PepsiCo and Frito-Lay since February
2021.
PepsiCo, Inc. is an American multinational food, snack, and
beverage corporation.[BN]
The Plaintiff is represented by:
Matthew S. Parmet, Esq.
PARMET PC
3 Riverway, Ste. 1910
Houston, TX 77056
Telepphone: (713) 999-5228
E-mail: matt@parmet.law
PEPSICO INC: Tschudy Seeks Unpaid Wages After Kronos Data Breach
----------------------------------------------------------------
JACOB TSCHUDY, individually and on behalf of all others similarly
situated v. PEPSICO, INC., Case No. 3:22-cv-00210 (W.D. Wis., April
12, 2022) arises from the Defendant's failure to pay Plaintiff for
all hours worked or proper overtime premium after the onset of the
Kronos hack in violation of the Wisconsin's Wage Payment and
Overtime Law.
In December 2021, payroll, time, and attendance management platform
Ultimate Kronos Group discovered a ransomware attack.
Mr. Tschudy brings this lawsuit to recover unpaid overtime wages
and other damages owed by PepsiCo to him and the
non-overtime-exempt workers like him, who were the ultimate victims
of not just the Kronos hack, but also PepsiCo's decision to make
its front line workers bear the economic burden for the hack. This
action seeks to recover the unpaid wages and other damages owed by
PepsiCo to all these workers, along with the penalties, interest,
and other remedies provided by Wisconsin law.
The Plaintiff has worked for PepsiCo since February 2007.
PepsiCo Inc. operates worldwide beverage, snack, and food
businesses.[BN]
The Plaintiff is represented by:
Matthew S. Parmet, Esq.
PARMET PC
3 Riverway, Ste. 1910
Houston, TX 77056
Telephone: (713) 999-5228
E-mail: matt@parmet.law
PLAYSTUDIOS INC: Rosen Law Firm Reminds of June 6 Deadline
----------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, on April 17
announced the filing of a class action lawsuit on behalf of
investors of PLAYSTUDIOS, Inc. f/k/a Acies Acquisition Corp.
(NASDAQ: MYPS, MYPSW, ACAC) who: (1) purchased, or otherwise
acquired the securities of PLAYSTUDIOS between June 22, 2021 and
March 1, 2022, both dates inclusive, including, but not limited to,
those who purchased or acquired PLAYSTUDIOS securities pursuant to
the PIPE offering; (2) held common stock of Acies as of May 25,
2021, and were eligible to vote at Acies' June 16, 2021 special
meeting; and/or (3) purchased or otherwise acquired PLAYSTUDIOS
common stock pursuant to or traceable to the Acies' Registration
Statement and Proxy Statement issued in connection with the June
2021 Merger (the "Class Period"). A class action lawsuit has
already been filed. If you wish to serve as lead plaintiff, you
must move the Court no later than June 6, 2022.
SO WHAT: If you purchased PLAYSTUDIOS securities during the Class
Period you may be entitled to compensation without payment of any
out of pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the PLAYSTUDIOS class action, go to
https://rosenlegal.com/submit-form/?case_id=5097 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than June 6, 2022. A
lead plaintiff is a representative party acting on behalf of other
class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Be wise in selecting counsel. The
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) PLAYSTUDIOS was having
significant problems with its flagship game, Kingdom Boss; (2)
PLAYSTUDIOS would not be releasing Kingdom Boss as expected; (3)
PLAYSTUDIOS had not revised its financial projections to account
for the problems it had encountered with Kingdom Boss; and (4) as a
result, defendants' statements about PLAYSTUDIOS' business,
operations, and prospects lacked a reasonable basis. When the true
details entered the market, the lawsuit claims that investors
suffered damages.
To join the PLAYSTUDIOS class action, go to
https://rosenlegal.com/submit-form/?case_id=5097 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
PRIORITY PAYMENT: PJEI Sues Over Fraudulent Inducement
------------------------------------------------------
Paul Judith Enterprises, Inc., individually and on behalf of all
others similarly situated v. PRIORITY PAYMENT SYSTEMS, LLC and
PRIORITY TECHNOLOGY HOLDINGS, INC., Case No. 1:22-cv-01305-WMR
(N.D. Ga., April 1, 2022), is brought against the Defendants for
fraudulent inducement, breach of contract, and unjust enrichment.
For years Defendants Priority Payment Systems, LLC and Priority
Technology Holdings, Inc. have induced merchants to enroll in card
payment processing services via fraudulent misrepresentations and
omissions concerning the fees for their services. Indeed, Priority
has employed a pervasive scheme whereby both its form contract
documents and numerous agents and resellers make fee promises that
Priority never had any intention of keeping. For example, Priority
sales agents and form documents inform prospective merchants that
they will be charged the fees set forth on a one-page fee schedule.
Priority and its agents are aware, however, that additional and
increased fees will be charged.
These false promises are intended by Priority to induce – and do
induce – merchants to execute standardized "Merchant Processing
Application and Agreements" ("MPAA") that seemingly support
Priority's well-rehearsed sales pitches. The MPAA purports to bind
the merchant to a long-term contract with more than 40 pages of
boilerplate fine-print terms that are set forth in the separate
"Program Guide," says the complaint.
The Plaintiff is a Pennsylvania corporation that does business as
"Passport Health PA," headquartered in Monroeville, Pennsylvania
and specializes in providing immunizations, medications, supplies,
and travel health counseling to prospective travelers.
Priority Technology Holdings, Inc. is a Delaware corporation
headquartered in Alpharetta, Georgia.[BN]
The Plaintiff is represented by:
E. Adam Webb, Esq.
Matthew C. Klase, Esq.
G. Franklin Lemond, Jr., Esq.
WEBB, KLASE & LEMOND, LLC
1900 The Exchange, S.E., Suite 480
Atlanta, GA 30339
Phone: (770) 444-0773
Email: Adam@WebbLLC.com
Matt@WebbLLC.com
Franklin@WebbLLC.com
RIVIAN AUTOMOTIVE: Rosen Law Firm Reminds of May 6 Deadline
-----------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, reminds
purchasers of the securities of Rivian Automotive, Inc. (NASDAQ:
RIVN) pursuant to or traceable to Rivian's Initial Public Offering
("IPO") on November 10, 2021 of the important May 6, 2022 lead
plaintiff deadline.
SO WHAT: If you purchased Rivian securities during the Class Period
you may be entitled to compensation without payment of any out of
pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the Rivian class action, go to
https://rosenlegal.com/submit-form/?case_id=3880 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than May 6, 2022. A
lead plaintiff is a representative party acting on behalf of other
class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Many of these firms do not actually
handle securities class actions, but are merely middlemen that
refer clients or partner with law firms that actually litigate the
cases. Be wise in selecting counsel. The Rosen Law Firm represents
investors throughout the globe, concentrating its practice in
securities class actions and shareholder derivative litigation.
Rosen Law Firm has achieved the largest ever securities class
action settlement against a Chinese Company. Rosen Law Firm was
Ranked No. 1 by ISS Securities Class Action Services for number of
securities class action settlements in 2017. The firm has been
ranked in the top 4 each year since 2013 and has recovered hundreds
of millions of dollars for investors. In 2019 alone the firm
secured over $438 million for investors. In 2020, founding partner
Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar.
Many of the firm's attorneys have been recognized by Lawdragon and
Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, the IPO offering
documents were materially inaccurate, misleading, and/or incomplete
because they failed to disclose, among other things, that the R1T
electric pickup truck and the R1S electric sport utility vehicle
(SUV) were underpriced to such a degree that Rivian would have to
raise prices shortly after the IPO and that these price increases
would tarnish Rivian's reputation as a trustworthy and transparent
company and would put a significant number of the existing backlog
of 55,400 preorders along with future preorders in jeopardy of
cancellation.
To join the Rivian class action, go to
https://rosenlegal.com/submit-form/?case_id=3880 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
RUBIN & ROTHMAN: Wins Bid for Judgment on Pleadings in Faherty Suit
-------------------------------------------------------------------
In the case, KATHLEEN S. FAHERTY, Plaintiff, v. RUBIN & ROTHMAN,
LLC and JOHN DOES 1-25, Defendants, Civil No. 3:21-cv-650(AWT)(D.
Conn.), Judge Alvin W. Thompson of the U.S. District Court for the
District of Connecticut grants the Defendants' Motion for Judgment
on the Pleadings.
I. Background
The Plaintiff, Faherty, brings the action on behalf of herself and
all others similarly situated against the Defendants. The complaint
has one count: A claim for abusive debt collection in violation of
the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. Section
1692 et seq. The Defendants move for judgment on the pleadings on
two grounds: 1) lack of standing; and 2) failure to state a claim
against the defendants for violations of the FDCPA.
At some point prior to April 20, 2021, the Plaintiff incurred one
or more financial obligations to Bank of America by purchasing
goods and services, which were primarily for personal, family, and
household purposes. The debt amounted to approximately $27,213.56.
On Nov. 9, 2020, D & A Services, LLC, a debt collection agency,
sent an initial collection letter to the Plaintiff. On Nov. 22,
2020, the Plaintiff sent a letter to D & A Services, LLC, asking
for documentation relating to the agency's authority to collect on
the debt. On Jan. 7, 2021, having received no response from D & A
Services, the Plaintiff sent a second letter to the agency. The
letter stated, "this is a second notice that your claim is disputed
and validation is requested." On April 2, 2021, the Plaintiff sent
a third letter to D & A Services, asking for documentation to
validate the debt. The Plaintiff never received the requested
verification from D & A Services.
At some point prior to April 12, 2021, Bank of America solicited
assistance from Rubin & Rothman to collect on the Plaintiff's debt.
On April 12, 2021, Rubin & Rothman sent a collection letter to the
Plaintiff. On April 20, 2021, Rubin & Rothman sent a letter to the
plaintiff, enclosing verification of the Plaintiff's debt.
The Plaintiff contends that by sending the April 12, 2021 debt
collection letter to her, the Defendants violated Section 1692g(b)
of the FDCPA. She argues that the April 12, 2021 letter violated
this provision because she had already disputed the debt and
requested verification of it in the letters sent to D & A
Services.
The Plaintiff also claims that sending the April 12, 2021 letter
violated Section 1692(e) of the FCDPA. She contends that no
attorney meaningfully reviewed her file prior to sending the April
12, 2021 letter because had an attorney done so, they would have
known that the plaintiff already disputed the debt.
II. Discussion
The Defendants contend that "the Plaintiff has not suffered any
concrete harm as a result of her FDCPA allegations." They argue
that "the Plaintiff has not alleged that she had the intent or the
ability to pay any or all of her Bank of America debt. Nor does the
Plaintiff's claim of 'lack of meaningful attorney review' connote
Article III standing."
The Plaintiff asserts that "Article III standing can be found if
the debt collector provided a Section 1692g notice in its initial
communication to the consumer but it was so defective that it
actually misled the consumer." She claims that the Defendants'
April 12, 2021 debt collection letter confused and misled her "as
to the level, if any, of attorney involvement in meaningfully
reviewing the [Bank of America] obligation file notes attributable
to her" and as to the validity of the debt. She argues that had she
not been misled, "she would have considered paying other
obligations (she did not dispute and/or request verification)
before paying the Bank of America obligation (since she was still
waiting for verification and assumed that Bank of America had
ceased collection in the interim.)"
Judge Thompson agrees with the Defendants that the Plaintiff has
failed to allege a concrete harm for purposes of Article III
standing. In Devoe v. Rubin & Rothman, LLC, the plaintiff made
similar FDCPA allegations, claiming that the debt collection letter
sent by the defendants was misleading with respect to the level of
attorney involvement in reviewing the plaintiff's file prior to
sending the letter.
In that case, the court issued an order asking the plaintiff to
specify "any concrete, particularized injury in fact from the
statutory violations alleged" in the complaint, or, in the
alternative, to "provide any authority or basis for plaintiff to
assert standing in this action." In response, the plaintiff argued
that she had been the victim of a deceptive practice and that
common law fraud was a sufficiently "close historical or common-law
analogue for her asserted injury" to satisfy Article III. The court
found that the plaintiff lacked standing because the "plaintiff
alleged only informational violations in this instance, the
misrepresentation of the debt collector as a law firm, and in all
of the filings therein, has not identified any other tangible
harm."
As in Devoe, Judge Thomson holds that the Plaintiff also alleges
only informational harm, i.e. the Defendants confused and deceived
her. Although she is correct that, to establish a concrete injury
for purposes of Article III standing, "an 'identifiable trifle,'
suffices," the Plaintiff provides no authority for the proposition
that informational harm, such as confusion or deception, is a
legally cognizable injury under Article III.
The Plaintiff relies on cases that fall into three categories. The
first two categories do not support her position, and the case in
the third category is not persuasive authority.
One, the Plaintiff relies on a number of cases where a plaintiff
did not seek to establish Article III standing based solely on
informational harm. Two, she relies on cases that precede
TransUnion, which narrowed the categories of intangible harms
sufficient to confer Article III standing. Three, she relies on a
post-TransUnion case involving FDCPA claims, where the court held
that false, misleading, and deceptive debt collection
communications that confuse the recipient suffice to establish
injury for purposes of Article III. Finally, Kola v. Forster &
Garbus LLP, No. 19-CV-10496, 2021 WL 4135153, (S.D.N.Y. Sept. 10,
2021), is instructive. As in Kola, the Plaintiff "has failed to
establish that she relied on the letter in making any decision
about paying the debt."
III. Conclusion
For the reasons he set forth, Judge Thompson grants the Defendants'
Motion for Judgment on the Pleadings. The Clerk will enter judgment
accordingly and close the case.
A full-text copy of the Court's April 6, 2022 Ruling is available
at https://tinyurl.com/yuf49ups from Leagle.com.
SARMA COLLECTIONS: Hartley FDCPA Suit Transferred to N.D. Florida
-----------------------------------------------------------------
The case styled as Dale Hartley, individually and on behalf of all
others similarly situated v. Sarma Collections Inc., Case No.
0:22-cv-60336 was transferred from the U.S. District Court for the
Southern District of Florida, to the U.S. District Court for the
Northern District of Florida on April 13, 2022.
The District Court Clerk assigned Case No. 4:22-cv-00152-MW-MAF to
the proceeding.
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Sarma Collections, Inc. -- https://sarma.com/ -- is a nationally
licensed debt collection agency located in San Antonio, Texas.[BN]
The Plaintiff is represented by:
Thomas John Patti, III, Esq.
THE LAW OFFICES OF JIBRAEL S. HINDI
110 SE 6th St., 17th Floor
Fort Lauderdale, FL 33301
Phone: (954) 907-1136
Email: tom@jibraellaw.com
The Defendant is represented by:
Lauren Marshall Burnette, Esq.
Maureen B. Walsh, Esq.
John Michael Marees, II, Esq.
MESSER STRICKLER BURNETTE LTD - JACKSONVILLE FL
12276 San Jose Boulevard, Suite 718
Jacksonville, FL 32223
Phone: (904) 527-1172
Fax: (904) 683-7353
Email: lburnette@messerstrickler.com
mwalsh@messerstrickler.com
jmarees@messerstrickler.com
SBE/KATSUYA USA: Wins Bid for Judgment on Pleadings in Downing Suit
-------------------------------------------------------------------
In the case, MEGHAN DOWNING, Plaintiff v. SBE/KATSUYA USA, LLC,
Defendant, Case No. 2:21-cv-06058-ODW (KKx) (C.D. Cal.), Judge Otis
D. Wright of the U.S. District Court for the Central District of
California granted Katsuya's motion for judgment on the pleadings
and dismissed the Plaintiff's complaint with leave to amend.
I. Introduction
On July 27, 2021, Plaintiff Downing brought the putative class
action lawsuit against Defendant SBE/Katsuya, alleging that its
website violated her rights under the Americans with Disabilities
Act ("ADA") and California's Unruh Civil Rights Act ("UCRA").
Katsuya now moves for judgment on the pleadings pursuant to Federal
Rule of Civil Procedure 12(c).
II. Background
Downing is a visually impaired and legally blind person who
requires screen-reading software to read website content using her
computer. Katsuya owns and operates several "Katsuya" restaurants
in California. It owns and operates a website for its restaurants,
https://www.katsuyarestaurant.com/. Specifically, the Website
allows users to view menu items, order menu items, sign up for
email updates, and access information regarding reservations,
online orders, pickup and delivery options, catering services, and
offers.
Downing alleges that on several occasions, she visited Katsuya's
Website and "encountered multiple access barriers which denied the
Plaintiff full and equal access to the facilities, goods, and
services offered to the public." Because Downing is visually
impaired and legally blind, she employed the assistance of
screen-reading software to attempt to access the Website. Downing
alleges that the Website lacked Alternative Text ("alt-text"),
which "is invisible code embedded beneath a graphic or image on a
website that is read to a user by a screen-reader." She also
alleges the Website contained "empty" links that contained no text
and "redundant" links that led to the same URL. Downing alleges
these deficiencies impaired her ability to access and use the
Website, constituting an access barrier in violation of the ADA.
Based on these allegations, Downing asserts two causes of action on
behalf of herself and the purported class: One for violation of the
ADA, and the second for violation of the UCRA.
On Aug. 6, 2021, after providing Downing an opportunity to show
cause why the Court should exercise supplemental jurisdiction over
the UCRA, the Court declined to exercise such jurisdiction. Thus,
only Downing's ADA claim remains pending in the action.
Katsuya now seeks judgment on the pleadings pursuant to Rule 12(c),
arguing that Katsuya is entitled to judgment on the ADA claim
because Downing fails to state a claim and, alternatively, because
the Court lacks subject matter jurisdiction as Downing fails to
plead an injury.
III. Discussion
Judge Wright finds that Downing fails to state a claim because she
did not sufficiently allege a nexus between Katsuya's Website and
its physical locations, and because she did not sufficiently allege
that she was actually denied a public accommodation.
First, he finds that Downing merely alleges that the Website
provides options and information regarding online orders -- but
fails to specifically allege that the Website provides users with
access to the goods and services at particular Katsuya locations.
Without such specific allegations, Katsuya's Website appears to be
no different than any standard website that merely allows users to
place online orders or access information. Thus, Downing fails to
state an ADA claim because she fails to allege a sufficient nexus
between Katsuya's Website and its physical locations.
Moreover, Katsuya correctly asserts that Downing "does not allege
how the content she purportedly could not view impaired access to
the dining services." Downing broadly alleges that she "attempted
to do business" with Katsuya on the Website, and "encountered
multiple access barriers which denied her full and equal access to
the facilities, goods, and services offered to the public." Neither
Katsuya nor the Court can deduce from these sweeping allegations
the specific goods or services -- and the specific physical
locations -- that Downing sought but could not access. Thus,
Downing fails to allege with sufficient particularity that she "was
denied public accommodations."
Taking all the allegations in the Complaint as true, Judge Wright
holds that Downing fails to state a claim under the ADA and Katsuya
is therefore entitled to judgment as a matter of law. Accordingly,
he will grant Katsuya's Motion for judgment on the pleadings and
dismiss Downing's Complaint. Because he cannot conclude that any
amendment would be futile, Judge Wright will grant Downing leave to
amend.
IV. Conclusion
Judge Wright finds that Downing fails to state a claim under the
ADA. He therefore granted Katsuya's Motion for judgment on the
pleadings and dismissed Downing's Complaint with leave to amend as
described. If Downing chooses to file an Amended Complaint, she
must file it within 21 days of the date of the Order, in which case
the Defendant will answer or otherwise respond no later than 14
days from the date the Amended Complaint is filed. If Downing fails
to timely file an amended complaint, the dismissal will
automatically convert to a dismissal with prejudice and judgment
will be entered for Katsuya.
A full-text copy of the Court's April 5, 2022 Order is available at
https://tinyurl.com/bdtyfena from Leagle.com.
SOPHIE BUHAI: Picon Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Sophie Buhai LLC. The
case is styled as Yelitza Picon, on behalf of herself and all other
persons similarly situated v. Sophie Buhai LLC, Case No.
1:22-cv-03081 (S.D.N.Y., April 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Sophie Buhai -- https://www.sophiebuhai.com/ -- is a modernist
jewelry company based in LA that focuses on timeless, handcrafted,
and locally-produced jewelry.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: michael@gottlieb.legal
STOESSER INDUSTRIES: Roundtree Files Suit in Cal. Super. Ct.
------------------------------------------------------------
A class action lawsuit has been filed against Stoesser Industries,
et al. The case is styled as Huey Roundtree, individually and on
behalf of those similarly situated v. Stoesser Industries,
Scientific Molding Corporation, Ltd., Case No. SCV-270587 (Cal.
Super. Ct., Sonoma Cty., April 13, 2022).
The case type is stated as "Unlimited Other Employment."
Stoesser Industries is a plastic fabrication company in Mountain
View, California.[BN]
The Plaintiff is represented by:
Jessica Lynn Campbell, Esq.
Samuel Alan Wong, Esq.
AEGIS LAW FIRM PC
9811 Irvine Center Dr., Ste. 100
Irvine, CA 92618-4375
Phone: 949-379-6250
Fax: 949-379-6251
Email: swong@aegislawfirm.com
STRICKLAND WATERPROOFING: Workers Class Certified in Farias Suit
----------------------------------------------------------------
In the case, HECTOR FARIAS, et al., Plaintiffs v. STRICKLA ND
WATERPROOFING COMPANY, INC., Defendant, Case No. 3:20-cv-00076
(W.D. Va.), Judge Norman K. Moon of the U.S. District Court for the
Western District of Virginia, Charlottesville Division, granted the
Plaintiffs' motion for conditional certification, including the
proposed out-of-state class members.
A collective action is certified as to the following individuals:
"All workers who, at any time after June 23, 2018, performed work
for Strickland who Strickland classified or compensated as
independent contractors, including all workers who Strickland
treated as not being entitled to overtime pay for overtime work."
I. Introduction
The Plaintiffs in the case have brought the putative collective
action under the Fair Labor Standards Act and its Virginia
state-law analog, suing for Strickland Waterproofing's alleged
failure to pay them required overtime and unlawful withholding of
portions of their hourly wages. They argue that Strickland avoided
paying required overtime by improperly characterizing them as
independent contractors.
The Plaintiffs move for conditional certification of a collective
action class. The only issue at this time is whether the Court
should limit the class to Strickland's employees in Virginia (as
Strickland argues), or whether the class can extend to similarly
classified persons who worked for Strickland as independent
contractors in other states.
II. Background
Plaintiffs Hector Farias, David de Jesus and Osmely
Perozo-Ferreira, have brought a putative collective and class
action complaint against Defendant Strickland Waterproofing
Company, alleging violations of the Fair Labor Standards Act
("FLSA"), 29 U.S.C. Section 201, et seq., and the Virginia Overtime
Wage Act ("VOWA"), Va. Code Section 40.1-29.2. The Plaintiffs also
brought a count alleging Strickland violated a Virginia statute
prohibiting misclassification of workers. Va. Code Section
40.1-28.7:7. They have alleged that Strickland violated the FLSA by
"failing to pay their employees the legally required overtime rate
for hours worked over 40" per week, that Strickland violated the
VOWA by "unlawfully deducting money from their paychecks and
requiring them to sign independent contractor agreements," and that
Strickland violated Virginia law by "misclassifying their employees
as independent contractor."
The named Plaintiffs are residents of North Carolina that are/were
employed by Strickland as construction workers at construction
sites in and around Virginia, including Charlottesville. Strickland
is a waterproofing company based in Charlotte, North Carolina that
does work on construction sites "in the Southeastern United
States," and does "substantial work" in Virginia, including various
projects in the Charlottesville area.
The Plaintiffs allege that Strickland required them and others
similarly situated to sign documents agreeing to be treated as
independent contractors. However, the Plaintiffs argue that they
(and others similarly situated) are in fact Strickland's employees,
as it 1) sets their schedules, determining the days and hours they
are needed on each worksite; 2) provides them with equipment and
tools; 3) supervises them directly; 4) provides them their daily
work assignments and supervises their day-to-day work; 5) requires
them to "punch in" using a "uAttend" application that Strickland
uses to record hours worked by Plaintiffs, among other factors.
The Plaintiffs also allege that while they were Strickland's
employees, they were treated improperly as independent contractors.
They "often worked in excess of 40 hours per week," however they
"were not compensated at the time and a half overtime rate for
their hours over forty in any one workweek." Moreover, Strickland
deducted 5% from their weekly pay and those of others similarly
situated, which was not for wage or withholding of taxes, and
therefore the Plaintiffs argue that deduction was also unlawful.
Strickland previously filed a motion to dismiss, arguing that the
FLSA statute of limitations barred the Plaintiffs' federal claims
arising before Dec. 22, 2018, or at a minimum, before Dec. 22,
2017. The Court agreed in part, holding that the FLSA barred claims
based on events before Dec. 22, 2017, but denied it with respect to
claims arising after that date. The parties agreed the Virginia law
claims could only concern events after July 1, 2020, the date the
statute went into effect.
The Plaintiffs thereafter moved for conditional certification of a
collective action and facilitation of a notice to the potential
class-members. They define the proposed "Collective Action Class"
as follows: "All workers who, at any time after June 23, 2018,
performed work for Strickland who Strickland classified or
compensated as independent contractors, including all workers who
Strickland treated as not being entitled to overtime pay for
overtime work."
The motion also requested that the Court order Strickland to
produce to the Plaintiffs' counsel, within 20 days, the full name
and last known address, telephone number, and e-mail address of
every person who is a member of the Collective Action Class; and
approve the Plaintiffs' proposed Notice Form and consent to Join
Suit Form.
Strickland filed an opposition to the motion. It argued that the
Plaintiffs' Collective Action Class "would be too broad to achieve
the requisite 'similarly situated' component necessary to allow for
conditional certification under the FLSA and VOWA." Therefore, it
asked that conditional certification "be limited to only
individuals who conducted work in Virginia after June 23, 2018." In
Strickland's view, "only those individuals who performed work in
Virginia could possibly be subject to common policies and practices
which violate the FLSA and the VOWA."
Strickland raised several arguments in support of its position.
First, Strickland argued that the Plaintiffs "failed to demonstrate
workers outside of Virginia are 'similarly situated.'" Second, it
contended that the fact that the Plaintiffs raised both FLSA and
VOWA claims "required the exclusion of workers outside of
Virginia."
III. Discussion
Judge Moon opines that in the "fairly lenient" standard for
conditional certification of a collective action that requires
"only minimal evidence," the Plaintiffs have put forward a
sufficient showing that those included in the proposed Collective
Action Class -- including out-of-state persons working for
Strickland -- "raise a similar issue as to coverage, exemption, or
nonpayment of minimum wages or overtime arising from at least a
manageably similar factual setting with respect to their job
requirements and pay provisions."
The Plaintiffs' showing is based on, among other things, a sworn
declaration from named Plaintiff Hector Farias and two sworn
declarations from named Plaintiff David De Jesus. They have
therefore put forward sufficient evidence at this stage that they,
and others in the proposed Collective Action Class, are similarly
situated with respect to the type of work that they performed for
Strickland; as well as how Strickland allegedly failed to pay
required overtime due to Strickland's employee misclassification.
There is also sufficient evidence at this stage that Strickland's
independent contractors in other states including North Carolina,
are similarly situated to those employees in Virginia. And
authority supports that out-of-state class members of a collective
action may be included even without any named Plaintiffs from other
states.
Finally, Judge Moon can see no reason (and Strickland has presented
none) why certain non-Virginia plaintiffs should be excluded
entirely from the collective action, because they would not be
eligible for certain damages that Virginia Plaintiffs would, even
though they too, like the Virginia Plaintiffs, would be eligible
for FLSA damages.
The Plaintiffs have also requested that the Court proceeds with an
identification and notice plan for potential members of the
Collective Action Class. Strickland did not object to the proposed
identification plan and proposed notice.
Judge Moon finds such plan and notice appropriate, with the
following modifications to the proposed notice:
1. On the top of page 1, after the line on the first page of
the proposed notice which states that "The Court has authorized
this notice but has not decided whether Defendants have violated
federal or Virginia law. The notice will also state that "This
notice does not imply in any way the Court's endorsement of
Plaintiffs' claims."
2. In Section II, entitled Who Can Join, the notice will add
the underlined language: "This case may be joined by any person who
worked for Strickland at any time on or after June 23, 2018, and
was classified or treated by Strickland as an independent
contractor."
3. On page 1 and 2, the bracketed portions of the notice will
reflect that the consent form be received back by 60 days from date
of postal mailing.
IV. Order
For these reasons, Judge Moon granted the Plaintiffs' motion for
conditional certification of a collective action.
A collective action is certified as to the following individuals:
"All workers who, at any time after June 23, 2018, performed work
for Strickland who Strickland classified or compensated as
independent contractors, including all workers who Strickland
treated as not being entitled to overtime pay for overtime work."
Strickland is directed to provide the Plaintiffs, within 20 days of
the decision, the full name, last known address, telephone
number(s), and email addresses of each and every individual that is
a member of the collective action, in a reasonably usable
electronic format if practicable to transmit the information in
such format.
Judge Moon approved the Plaintiffs' Proposed Notice and Consent to
Participate in a collection action forms and proposed methods of
transmitting notice, with the additions and modifications set
forth.
The Clerk of Court is directed to send the Memorandum Opinion &
Order to all counsel of record.
A full-text copy of the Court's April 5, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/2hmzsnu8 from
Leagle.com.
SUPERCARE HEALTH: Fails to Protect Patients' Info, Angulo Says
--------------------------------------------------------------
VICKEY ANGULO, individually and on behalf of herself and all others
similarly situated, Plaintiffs v. SUPERCARE HEALTH, INC.,
Defendant, Case No. 2:22-cv-02483 (C.D. Cal., April 12, 2022)
arises from the Defendant's failure to implement adequate and
reasonable cyber-security procedures and protocols necessary to
protect Plaintiff's and the Class Members' personally identifiable
information and protected health information following an
unauthorized third party intrusion in a cybersecurity incident.
The complaint alleges that the Defendant disregarded the rights of
Plaintiff's and Class Members by, inter alia, intentionally,
willfully, recklessly or negligently failing to take adequate and
reasonable measures to ensure its data systems were protected
against unauthorized intrusions; failing to disclose that it did
not have adequately robust computer systems and security practices
to safeguard patient private information; failing to take standard
and reasonably available steps to prevent the data breach and
failing to provide Plaintiff and Class Members accurate notice of
the data breach.
The Plaintiff seeks to remedy these harms on behalf of herself and
all similarly situated individuals whose private information was
accessed during the data breach.
SuperCare Health, Inc. is a respiratory health company that is
headquartered in Downey, California.[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: (615) 921-6501
E-mail: astraus@milberg.com
TACOS DAVIE: Soto Files Suit Over Unpaid Minimum, Overtime Wages
----------------------------------------------------------------
NUBIA RINCON SOTO, and those similarly situated, Plaintiff v. TACOS
DAVIE, CO., JUAN F. CEDENO, individually, and JILL T. TOROSSI
PALUMBI, individually, Defendants, Case No. CACE-22-005241 (Fla.
Cir., 17th Judicial, Broward Cty., April 11, 2022) is an action
brought by the Plaintiff and all others similarly situated against
Defendants for unpaid overtime wages and minimum wages pursuant to
the Fair Labor Standards Act and the Florida Minimum Wage Act.
The Plaintiff began working for Defendants from September 10, 2021,
until March 4, 2022. During her employment with Defendants and
despite Defendants' knowledge of her work hours, Plaintiff would
work beyond 40 hours per week but would not receive full/proper
overtime wages, asserts the complaint.
Tacos Davie, Co. is a for-profit corporation operating out of
Broward County, Florida.[BN]
The Plaintiff is represented by:
J. Freddy Perera, Esq.
Brody M. Shulman, Esq.
Alexander T. Harne, Esq.
PERERA ALEMAN 12555
Orange Drive, Second Floor
Davie, FL 33330
Telephone: (786) 485-5232
E-mail: freddy@pba-law.com
brody@pba-law.com
harne@pba-law.com
TAZEWELL COUNTY, IL: Court Dismisses Complaint in Atkinson v. Lower
-------------------------------------------------------------------
In the lawsuit captioned JAMES LOGAN ATKINSON, Plaintiff v. JEFF
LOWER, et al., Defendants, Case No. 22-cv-1024-Mr. (C.D. Ill.), the
U.S. District Court for the Central District of Illinois dismissed
the Plaintiff's complaint in its entirety with leave to file an
amended complaint.
The Plaintiff, proceeding pro se and detained at the Tazewell
County Jail, filed a complaint against Sheriff Jeff Lower, the
Tazewell County Sheriff's Department, and the Jail. The case is
before the Court for a merit review pursuant to 28 U.S.C. Section
1915A.
In reviewing the complaint, the Court accepts the factual
allegations as true, liberally construing them in the Plaintiff's
favor. However, conclusory statements and labels are insufficient.
Enough facts must be provided to state a claim for relief that is
plausible on its face.
Allegations
The Plaintiff claims that the Defendants were negligent by failing
to prevent the spread of COVID-19 among detainees at the Jail.
First, he alleges that he was forced to remain in his cell on Jan.
1, 2022, after his cellmate complained of feeling ill. The
Plaintiff and his cellmate were tested for COVID-19 on Jan. 2,
2022, and the Plaintiff's cellmate tested positive. The Plaintiff,
who is at high risk due to asthma, tested negative.
The Plaintiff also alleges that "some of us were sick with
COVID-19," but staff members failed to check vitals and
temperatures and detainees were charged two dollars for Tylenol.
The Plaintiff does not indicate if he was ill or if he purchased
Tylenol.
Next, the Plaintiff alleges that staff members violated health and
safety laws because they served meals to inmates, who were positive
for COVID-19 and did not change their gloves before serving
inmates, who were negative.
Finally, the Plaintiff claims that three inmates, who were positive
for COVID-19 were moved to the B-Pod, where the Plaintiff is
housed, and that they were allowed to mingle with other inmates for
about thirty minutes.
The Plaintiff asks the Court to order staff to undergo more
COVID-19 training; award compensation for pain and suffering; and
to convert the case to a class action suit.
Analysis
To establish a constitutional claim, the Plaintiff, as a pretrial
detainee, must successfully plead that the conditions under which
he was held were objectively unreasonable, in violation of the
Fourteenth Amendment. Although he used a preprinted complaint form
and designated his claim as having been filed under Section 1983,
the Plaintiff brings a claim for negligence against the Defendants.
Allegations of negligence, however, do not reach the level of a
constitutional violation, District Judge Michael M. Mihm holds.
While the Plaintiff names Sheriff Jeff Lower and the Tazewell
County Sheriff's Department, he does not state if the suit is
brought against the Sheriff in his official capacity, individual
capacity, or both nor does he claim that the Sheriff was present or
participated in the alleged conduct, Judge Mihm notes. Judge Mihm
explains that Section 1983 does not allow actions against
individuals just for their supervisory role of others. Individual
liability under Section 1983 can only be based upon a finding that
the defendant caused the deprivation alleged.
The Plaintiff states that the staff at the Jail should receive
additional COVID-19 training, but this alone does not establish
that the Sheriff failed to train staff, and therefore, no
actionable claim has been stated, Judge Mihm opines. Sheriff Jeff
Lower and the Tazewell County Sheriff's Department are, hence,
dismissed, without prejudice.
The Plaintiff also names the Jail, which is not a "person" amenable
to suit under Section 1983, Judge Mihm notes. The Tazewell County
Jail is, therefore, dismissed, with prejudice.
Judge Mihm ordered that the Plaintiff's complaint is dismissed in
its entirety. The Plaintiff will have 30 days in which to file an
amended complaint. It is to be captioned "Amended Complaint" and is
to include all of the Plaintiff's claims, without reference to a
prior pleading. If the Plaintiff repleads, he is to identify those
individual persons whom he holds liable for violating his
constitutional rights. The failure to file an amended complaint
will result in the dismissal of this case, without prejudice, for
failure to state a claim.
The Clerk is directed to enter the standard order granting the
Plaintiff's in forma pauperis petition and assessing an initial
partial filing fee, if not already done.
The Plaintiff files a motion for recruitment of pro bono counsel,
but he does not indicate that he attempted to secure counsel on his
own. The request is denied at this time. If the Plaintiff renews
his motion, he is to provide copies of the letters sent to, and
received from, prospective counsel.
A full-text copy of the Court's Merit Review Order dated March 31,
2022, is available at https://tinyurl.com/yckt24de from
Leagle.com.
TOYOTA BOSHOKU: Transou Sues Over Production Staff's Unpaid OT
--------------------------------------------------------------
VALERIE D. TRANSOU, Individually, and on behalf of herself and
other similarly situated current and former employees, Plaintiff v.
TOYOTA BOSHOKU TENNESSEE, LLC, Defendant, Case No.
1:22-cv-01062-STA-JAY (W.D. Tenn., April 11, 2022) is brought
against the Defendant as a collective action under the Fair Labor
Standards Act to recover unpaid overtime compensation and other
damages owed to Plaintiff and those similarly situated.
The Plaintiff was employed by Defendant as an hourly-paid
production worker during all times relevant to this collective
action.
The Defendant is headquartered in Jackson, Tennessee and
manufactures vehicle parts at its manufacturing facility in
Jackson, Tennessee.[BN]
The Plaintiff is represented by:
Gordon E. Jackson, Esq.
J. Russ Bryant, Esq.
Robert E. Turner, IV, Esq.
Robert E. Morelli, III, Esq.
JACKSON SHIELDS YEISER HOLT OWEN & BRYANT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 754-8524
E-mail: gjackson@jsyc.com
rbryant@jsyc.com
rturner@jsyc.com
rmorelli@jsyc.com
UBER TECHNOLOGIES: Malik Sues Over Wage and Hour Violations
-----------------------------------------------------------
Soha Malik, an individual, and on behalf of all aggrieved employees
and the State of California v. UBER TECHNOLOGIES, INC., a Delaware
Corporation; RUSSELL TOBIN AND ASSOCIATES LLC, a Delaware Limited
Liability Company; and DOES 1-3, inclusive, Case No. CGC-22-599004
(Cal. Super. Ct., San Francisco Cty., April 1, 2022), is brought
seeking to recover damages arising from the Defendants' several
wage and hour violations, unjustified and arbitrary breach of her
fixed term employment contract, and unlawful retaliation for
raising concerns that Uber was violating the Electronic
Communications Privacy Act.
Sometime during her employment, Plaintiff asked Ms. Owyand and
Uber's IT department to reimburse her for the expenses that she had
incurred to reasonably perform her job duties, but both refused to
reimburse her for any of her expenses. Plaintiff also asked her
contact at RTA, Malia, to receive reimbursement for her work
related expenses in January 2021, but RTA did not reimburse
Plaintiff. At no point did Defendants reimburse Plaintiff for any
of the expenses she incurred to reasonably perform her job duties.
Plaintiff also did not accrue any paid sick leave from August 2020
through November 2020 and from December 2020 through January 2021.
Plaintiff also was not permitted to carry over any paid sick leave
that she accrued in 2020 to the new calendar year. As a result,
Plaintiff's wage statements are inaccurate because they fail to
accurately reflect Plaintiff's accrued paid sick time and paid time
off ("PTO"), says the complaint.
The Plaintiff is a permanent resident of the State of California
residing and working in San Francisco, California.
Uber Technologies, Inc. is a Delaware corporation with its
headquarters and primary place of business located in the City and
County of San Francisco.[BN]
The Plaintiff is represented by:
Dorothy C. Yamamoto, Esq.
Gregory R. Michael, Esq.
MICHAEL YAMAMOTO LLP
1400 Shattuck Ave., #412
Berkeley, CA 94709
Phone: 510.296.5600
Fax: 510.296.5600
Email: dyamamoto@myllp.law
gmichael@myllp.law
UNITED BUILDING: Salgado Files Suit in Cal. Super. Ct.
------------------------------------------------------
A class action lawsuit has been filed against United Building
Maintenance Inc., et al. The case is styled as Veronica Salgado, on
behalf of all persons similarly situated v. United Building
Maintenance Inc, Does 1-50, Case No. 34-2022-00318231-CU-OE-GDS
(Cal. Super. Ct., Sacramento Cty., April 13, 2022).
The case type is stated as "Other Employment – Civil Unlimited."
United Building Maintenance, Inc. -- https://ubm-associates.com/ --
operates as a provider of facility maintenance services.[BN]
The Plaintiff is represented by:
Norman B. Blumenthal, Esq.
BLUMENTHAL, NORDREHAUG & BHOWMIK
2255 Calle Clara
La Jolla, CA 92037-3107
Phone: 858-551-1223
Fax: 858-551-1232
Email: norm@bamlawca.com
UNITED PARCEL: Van Tassel Sues Over Unlawful Labor Practices
------------------------------------------------------------
VICTORIA VAN TASSEL, on behalf of herself and all others similarly
situated, Plaintiff, v. UNITED PARCEL SERVICE, INC., an Ohio
Corporation; and DOES 1 Through 10, inclusive, Defendants, Case No.
37-2022-00013716-CU-0E-CTL (Cal. Super., San Diego Cty., April 12,
2022) arises from the Defendants' alleged violations of the
California laws, including the Labor Code, IWC Wage Orders, Code of
Civil Procedure, and Business and Professions Code.
The Plaintiff alleges that the Defendants' failed to pay minimum,
regular, and overtime wages; breached contract for failure to pay
promised bonus wages; failed to provide meal periods; failed to
authorize and permit paid rest periods; failed to provide accurate
itemized wage statements; failed to timely pay wages due at
separation, and violated the Unfair Competition Law.
The Plaintiff worked for the Defendants as a seasonally-employed
UPS personal vehicle driver from approximately October 2021 through
December 24, 2021 based out of UPS' San Diego terminal.
United Parcel Service is an American multinational shipping and
receiving and supply chain management company founded in 1907.[BN]
The Plaintiff is represented by:
Isam C. Khoury, Esq.
Michael D. Singer, Esq.
J. Jason Hill, Esq.
Rosemary C. Khoury, Esq.
COHELAN KHOURY & SINGER
605 C Street, Suite 200
San Diego, CA 92101
Telephone: (619) 595-3001
Facsimile: (619) 595-3000
E-mail: ikhoury@ckslaw.com
msinger@ckslaw.com
jhill@ckslaw.com
rkhoury@ckslaw.com
- and -
Brad Nakase, Esq.
NAKASE LAW FIRM, INC.
2221 Camino Del Rio South, Suite 300
San Diego, CA 92108
Telephone: (619) 550-1321
E-mail: brad@NakaseLawFirm.com
VOLT MANAGEMENT: Bid to Remand Ramirez Suit to Kern County Denied
-----------------------------------------------------------------
In the case, BEATRIZ RAMIREZ, on behalf of herself and others
similarly situated, Plaintiff v. VOLT MANAGEMENT CORP., et al.,
Defendants, Case No. 1:22-cv-00132-DAD-BAK (E.D. Cal.), Judge Dale
A. Drozd of the U.S. District Court for the Eastern District of
California denied the Plaintiff's motion to remand the action to
the Superior Court of the State of California for the County of
Kern.
I. Background
Plaintiff Ramirez initiated the putative wage-and-hour class action
against Defendant Volt and Defendant IKEA Distribution Services
Inc. in the Kern County Superior Court on Nov. 16, 2021. On Feb. 1,
2022, Defendant IKEA timely removed the action to the federal court
pursuant to the Class Action Fairness Act ("CAFA"), 28 U.S.C.
Section 1332(d).
On March 3, 2022, the Plaintiff filed the pending motion to remand
the action to the Kern County Superior Court, contending that the
Defendant has failed to prove by a preponderance of the evidence
that the amount in controversy exceeds $5 million as required by
CAFA.
On March 17, 2022, Defendant IKEA filed its opposition to the
Plaintiff's motion to remand and concurrently filed two
declarations "as evidence establishing that the amount in
controversy for this matter well exceeds $5 million and that the
amount in controversy alleged in the Defendant's Notice of Removal
is based on reliable, good-faith estimates that the Court must
accept as true."
The first such declaration is from Levon Massmanian, a Director at
Resolution Economics LLC and consultant who Defendant IKEA retained
"to review and analyze a variety of data in connection with
providing an estimate of the amount in controversy in the matter,"
including "preliminary active and terminated co-worker list,
timekeeping data, and payroll data." The second declaration is from
Christopher Blevins, the HRMS Manager for IKEA US Retail LLC (which
administers payroll functions for Defendant IKEA), and the
custodian of electronic human resources and payroll records who
prepared the Excel spreadsheets that were provided to consultant
Mr. Massmanian for analysis.
On March 25, 2022, the Plaintiff filed her reply to defendant
IKEA's opposition to the pending motion to remand. She did not
concurrently file any supporting declarations.
II. Analysis
Under CAFA, federal courts have jurisdiction "over certain class
actions, defined in 28 U.S.C. Section 1332(d)(1), if the class has
more than 100 members, the parties are minimally diverse, and the
amount in controversy exceeds $5 million." Congress designed the
terms of CAFA specifically to permit a defendant to remove certain
class or mass actions into federal court. No antiremoval
presumption attends cases invoking CAFA.
The Plaintiff's motion to remand is based on several flawed
arguments and misstatements of applicable law and falls far short
of persuading Judge Drozd that Defendant IKEA failed to meet its
burden in removing the action based on CAFA jurisdiction. Judge
Drozd concludes that Defendant IKEA has satisfied its burden, in
response to the Plaintiff's challenge, to show by a preponderance
of the evidence that the amount in controversy in the case exceeds
the $5 million threshold. Accordingly, he will deny the Plaintiff's
motion to remand the action to Kern County Superior Court.
III. Disposition
For the reasons he explained, Judge Drozd denied the Plaintiff's
motion to remand.
A full-text copy of the Court's April 1, 2022 Order is available at
https://tinyurl.com/2jrjn2sr from Leagle.com.
VOLTA INC: Bragar Eagel & Squire Reminds of May 31 Deadline
-----------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized shareholder
rights law firm, reminds investors that class actions have been
commenced on behalf of stockholders of Volta, Inc. (NYSE: VLTA),
Embark Technology, Inc. (NASDAQ: EMBK), Lucid Group, Inc. (NASDAQ:
LCID), and Stronghold Digital Mining, Inc. (NASDAQ: SDIG).
Stockholders have until the deadlines below to petition the court
to serve as lead plaintiff. Additional information about each case
can be found at the link provided.
Volta, Inc. (NYSE: VLTA)
Class Period: August 2, 2021 - March 28, 2022
Lead Plaintiff Deadline: May 31, 2022
On August 26, 2021, Volta Industries, Inc. ("Legacy Volta"), a
private entity, and Tortoise Acquisition Corp. II, a special
purpose acquisition company, completed a business combination
pursuant to which the combined entity was named Volta Inc. (the
"Business Combination").
On March 2, 2022, after the market closed, Volta revealed that the
financial impact of the restatement of its third quarter 2021
financial results was greater than previously disclosed, expecting
to report a net loss of $69.7 million for the quarter. On this
news, the Company's share price fell $0.11, or 2.6%, to close at
$4.01 per share on March 3, 2022, on unusually heavy trading
volume.
Then, on March 21, 2022, Volta announced that it would reschedule
its fourth quarter and full year 2021 financial results. On this
news, the Company's share price fell $0.38, or 8.4% to close at
$4.12 per share on March 21, 2022, on unusually heavy trading
volume.
Then, on March 28, 2022, Volta announced that its founders, Scott
Mercer and Christopher Wendel, had resigned from their positions as
CEO and President, respectively, and from the Board of Directors of
the Company. On this news, the Company's share price fell $0.76, or
18%, to close at $3.37 per share on March 28, 2022, on unusually
heavy trading volume.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to
investors: (1) that Volta had improperly accounted for restricted
stock units issued in connection with the Business Combination; (2)
that, as a result, the Company had understated its net loss for
third quarter 2021; (3) that there were material weaknesses in the
Company's internal control over financial reporting that resulted
in a material error; (4) that, as a result of the foregoing, the
Company would restate its financial statements; (5) that, as a
result of the foregoing, Legacy Volta's founders would imminently
exit the Company; (6) that, as a result, the Company's financial
results would be adversely impacted; and (7) that, as a result of
the foregoing, Defendants' positive statements about the Company's
business, operations, and prospects were materially misleading
and/or lacked a reasonable basis.
For more information on the Volta class action go to:
https://bespc.com/cases/VLTA
Embark Technology, Inc. (NASDAQ: EMBK)
Class Period: January 12, 2021 - January 5, 2022
Lead Plaintiff Deadline: May 31, 2022
Embark develops self-driving software solutions for the trucking
industry in the U.S. The Company was originally a special purpose
acquisition company, also called a blank-check company, which is a
development stage company that has no specific business plan or
purpose or has indicated its business plan is to engage in a merger
or acquisition with an unidentified company or companies, other
entity, or person.
On November 10, 2021, the Company consummated a merger transaction
with Embark Trucks Inc., a Delaware corporation ("Legacy Embark"),
whereby, among other things, the Company changed its name from
"Northern Genesis Acquisition Corp. II" to "Embark Technology,
Inc." (the "Business Combination").
The complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operations, and compliance policies.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that: (i) the Company had performed
inadequate due diligence into Legacy Embark; (ii) Legacy Embark and
the Company following the Business Combination held no patents and
an insignificant amount of test trucks; (iii) accordingly, the
Company had overstated its operational and technological
capabilities; (iv) as a result of all the foregoing, the Company
had overstated the business and financial prospects of the Company
post-Business Combination; and (v) as a result, the Company's
public statements were materially false and misleading at all
relevant times.
On January 6, 2022, The Bear Cave published a short report entitled
"Problems at Embark Technology (EMBK)" (the "Bear Cave Report").
The Bear Cave Report alleged, among other issues, "that Embark
appears to lack true economic substance" and that its "current
evaluation appears to be based on puffery rather than actual
substance", noting that "[t]he company holds no patents, has only a
dozen or so test trucks, and may be more bark than bite."
On this news, Embark's stock price fell $1.37 per share, or 16.75%,
to close at $6.81 per share on January 6, 2022.
For more information on the Embark class action go to:
https://bespc.com/cases/EMBK
Lucid Group, Inc. (NASDAQ: LCID)
Class Period: November 15, 2021 - February 28, 2022
Lead Plaintiff Deadline: May 31, 2022
On February 28, 2022, Lucid disclosed that it had only delivered
approximately 125 EVs in 2021 – 452 less than expected – and
would only produce between 12,000 and 14,000 EVs in 2022, despite
previous claims that it would produce 20,000. The Company also
announced that it would delay the launch of its Lucid Gravity SUV
from 2023 to 2024, citing "the extraordinary supply chain and
logistics challenges" as the cause.
On this news, Lucid's common stock fell $3.99, or 13.8%, to close
at $24.99 per share on March 1, 2022, thereby injuring investors.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants overstated Lucid's production
capabilities while concealing that "extraordinary supply chain and
logistics challenges" were hampering the Company's operations from
the start of the Class Period.
For more information on the Lucid class action go to:
https://bespc.com/cases/LCID
Stronghold Digital Mining, Inc. (NASDAQ: SDIG)
Class Period: October 22, 2021 IPO
Lead Plaintiff Deadline: June 13, 2022
In October 2021, the Company completed its IPO, selling 7,690,400
shares of Class A common stock at $19.00 per share.
On March 29, 2022, after the market closed, Stronghold announced
its fourth quarter and full year 2021 financial results. The
Company reported a net loss of $0.52 for the quarter, below analyst
estimates of $0.04 earnings per share, and Stronghold's Chief
Executive Officer cited "significant headwinds in our operations
which have materially impacted recent financial performance."
On this news, the Company's stock price fell as much as $3.28, or
32%, to close at $6.97 per share on March 30, 2022. As of April 14,
2022, Stronghold stock has traded as low as $4.78 per share, a more
than 75% decline from the $19 per share IPO price.
The complaint filed in this class action alleges that the
Registration Statement was materially false and misleading and
omitted to state: (1) that contracted suppliers, including MinerVa,
were reasonably likely to miss anticipated delivery quantities and
deadlines; (2) that, due to strong demand and pre-sold supply of
mining equipment in the industry, Stronghold would experience
difficulties obtaining miners outside of confirmed purchase orders;
(3) that, as a result of the foregoing, there was a significant
risk that Stronghold could not expand its mining capacity as
expected; (4) that, as a result, Stronghold would likely experience
significant losses; and (5) as a result, Defendants' statements
about its business, operations, and prospects were materially false
and misleading and/or lacked reasonable basis at all relevant
times.
For more information on the Stronghold class action go to:
https://bespc.com/cases/SDIG
About Bragar Eagel & Squire, P.C.:
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes.
Contact Information:
Bragar Eagel & Squire, P.C.
Brandon Walker, Esq.
Alexandra B. Raymond, Esq.
(212) 355-4648
investigations@bespc.com
www.bespc.com [GN]
VOLTA INC: Rosen Law Firm Reminds of May 31 Deadline
----------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, on April 17
announced the filing of a class action lawsuit on behalf of
purchasers of the securities of Volta Inc. f/k/a Tortoise
Acquisition Corp. II (NYSE: VLTA, VLTA-WT, SNPR) between August 2,
2021 and March 28, 2022, inclusive (the "Class Period"). A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than May 31, 2022.
SO WHAT: If you purchased Volta securities during the Class Period
you may be entitled to compensation without payment of any out of
pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the Volta class action, go to
https://rosenlegal.com/submit-form/?case_id=4819 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than May 31, 2022. A
lead plaintiff is a representative party acting on behalf of other
class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Be wise in selecting counsel. The
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) Volta had improperly accounted
for restricted stock units issued in connection with the Business
Combination; (2) Volta had understated its net loss for third
quarter 2021; (3) there were material weaknesses in Volta's
internal control over financial reporting that resulted in a
material error; (4) as a result of the foregoing, Volta would
restate its financial statements; (5) Legacy Volta's founders would
imminently exit the Company; (6) Volta's financial results would be
adversely impacted; and (7) as a result of the foregoing,
defendants' positive statements about Volta's business, operations,
and prospects were materially misleading and/or lacked a reasonable
basis. When the true details entered the market, the lawsuit claims
that investors suffered damages.
To join the Volta class action, go to
https://rosenlegal.com/submit-form/?case_id=4819 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
VOLTA INC: Vincent Wong Law Reminds of May 31 Deadline
------------------------------------------------------
Attention Volta Inc. ("Volta") (NYSE: VLTA) shareholders:
The Law Offices of Vincent Wong announce that a class action
lawsuit has commenced on behalf of investors who purchased between
August 2, 2021 and March 28, 2022.
If you suffered a loss on your investment in Volta, contact us
about potential recovery by using the link below. There is no cost
or obligation to you.
https://www.wongesq.com/pslra-1/volta-inc-loss-submission-form?prid=26027&wire=4
ABOUT THE ACTION: The class action against Volta includes
allegations that the Company made materially false and/or
misleading statements and/or failed to disclose that: (1) Volta had
improperly accounted for restricted stock units issued in
connection with the business combination of Volta Industries, Inc.
("Legacy Volta") and Tortoise Acquisition Corp. II; (2) as a
result, the Company had understated its net loss for third quarter
2021; (3) there were material weaknesses in the Company's internal
control over financial reporting that resulted in a material error;
(4) as a result of the foregoing, the Company would restate its
financial statements; (5) as a result of the foregoing, Legacy
Volta's founders would imminently exit the Company; (6) as a
result, the Company's financial results would be adversely
impacted; and (7) as a result of the foregoing, defendants'
positive statements about the Company's business, operations, and
prospects were materially misleading and/or lacked a reasonable
basis.
DEADLINE: May 31, 2022
Aggrieved Volta investors only have until May 31, 2022 to request
that the Court appoint you as lead plaintiff. You are not required
to act as a lead plaintiff in order to share in any recovery.
Vincent Wong, Esq. is an experienced attorney who has represented
investors in securities litigations involving financial fraud and
violations of shareholder rights. Attorney advertising. Prior
results do not guarantee similar outcomes.
CONTACT:
Vincent Wong, Esq.
39 East Broadway
Suite 304
New York, NY 10002
Tel. 212.425.1140
E-Mail: vw@wongesq.com [GN]
WAL-MART STORES: Court Denies Griego's Bid for Class Certification
------------------------------------------------------------------
In the lawsuit entitled BRANDAN GRIEGO, Plaintiff v. WAL-MART
STORES, INC. et al., Defendants, Case No. 20cv401-L-MDD (S.D.
Cal.), Judge M. James Lorenz of the U.S. District Court for the
Southern District of California issued an order denying the
Plaintiff's motion for class certification, and denying as moot his
ex parte motion to reconsider.
The action was transferred to this Court at the Plaintiff's
request. The Plaintiff requested the transfer because a nearly
identical case was already pending in this Court, Garcia v.
Wal-Mart Associates, Inc., et al., 18cv500-L-MDD. Both actions
assert the same legal claim for waiting time penalties pursuant to
California Labor Code Sections 201-203 on behalf of a class and
subclass against the Wal-Mart Defendants. The Court agreed to
accept the transfer based on Civil Local Rule 40.1 because the same
legal claims are asserted based on the same payroll and timekeeping
policies and procedures employed by the Defendants.
On Aug. 26, 2019, the Court granted class certification in Garcia,
certifying a class and subclass defined as follows:
a. Any and all individuals who worked for Defendants in the
State of California whose employment ended at any time from
February 1, 2015, through the present, and who received a
Statement of Final Pay and then received any additional
wages (regular, overtime and/or vacation) on Defendants'
on-cycle payroll immediately subsequent to the issuance of
the Statement of Final Pay to the individual (the Class);
and
b. Any and all individuals who worked for Defendants in the
State of California whose employment ended at any time from
February 1, 2015, through the present, and who received a
Statement of Final Pay and then received any additional
wages (regular, overtime and/or vacation) more than 3 days
after the issuance of the Statement of Final Pay on
Defendants' on-cycle payroll immediately subsequent to the
issuance of the Statement of Final Pay to the individual
(the Subclass).
The Plaintiff here seeks class certification for the same claim,
failure to pay separating employees all final wages within the time
provided by California Labor Code Sections 201(a) and 202(a), based
on the same theory of the case. With the exception of the class
period, the Plaintiff's proposed class and subclass definitions are
the same as those confirmed in Garcia:
a. Any and all individuals who worked for Defendants in the
State of California whose employment ended at any time from
August 27, 2019, through the date of judgment, and who
received a Statement of Final Pay and then received any
additional wages (regular, overtime and/or vacation) on
Defendants on-cycle payroll immediately subsequent to the
issuance of the Statement of Final Pay to the individual;
and
b. Any and all individuals who worked for Defendants in the
State of California whose employment ended at any time from
August 27, 2019, through the date of judgment, and who
received a Statement of Final Pay and then received any
additional wages (regular, overtime and/or vacation) more
than 3 days after the issuance of the Statement of Final
Pay on Defendants on-cycle payroll immediately subsequent
to the issuance of the Statement of Final Pay to the
individual (the Subclass).
Judge Lorenz notes that the only difference between the Plaintiff's
proposed class and the class certified in Garcia is the class
period. The class period proposed by the Plaintiff is entirely
subsumed in the class period certified in Garcia.
The Plaintiff seeks certification pursuant to Rule 23(b)(3) of the
Federal Rules of Civil Procedure. To prevail, he must show, among
other things, that "a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy."
One of the matters pertinent to this finding is "the extent and
nature of any litigation concerning the controversy already begun
by or against class members."
Judge Lorenz finds that the Plaintiff did not address this factor
in his motion.
The Garcia class includes the Plaintiff's proposed class. The
Plaintiff has not met his burden to show that certifying a class
action in his case is superior to other available methods of
adjudicating the putative class members' claims, Judge Lorenz
opines. His motion for class certification is, therefore, denied.
Also pending before the Court is the Plaintiff's ex parte motion to
reconsider the Order granting the Defendants' ex parte motion to
strike new arguments raised in the Plaintiff's reply in support of
his motion for class certification.
Judge Lorenz holds that because denial of the Plaintiff's class
certification does not implicate new arguments the Defendants claim
the Plaintiff raised in the reply, the Plaintiff's ex parte motion
is denied as moot.
A full-text copy of the Court's Order dated March 31, 2022, is
available at https://tinyurl.com/25vx2sec from Leagle.com.
WASTE MANAGEMENT: Bids to Dismiss Claims in Fresh Air Suit Granted
------------------------------------------------------------------
In the case, FRESH AIR FOR THE EASTSIDE, INC., et al., Plaintiffs
v. WASTE MANAGEMENT OF NEW YORK LLC, and THE CITY OF NEW YORK,
Defendants, Case No. 18-CV-06588-FPG-MJP (W.D.N.Y.), Judge Frank P.
Geraci, Jr., of the U.S. District Court for the Western District of
New York granted the Defendants' motion to dismiss the claims of
John Ramsperger and motions to dismiss the claims of the
Plaintiffs.
I. Background
Fresh Air, Whitney Hill Farm LLC, and over 220 individual
plaintiffs filed the action against the Defendants, alleging
violations of the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901 et seq., the Clean Air Act, 42 U.S.C. Section 7401 et
seq., and New York State law.
On May 13, 2020, Knauf Shaw LLP, the counsel for the Plaintiffs,
informed the Court that Plaintiff John Ramsperger had passed away
and requested an extension of time to substitute the proper party.
The Court granted that motion, requiring any substitution to occur
by Aug. 17, 2020. No motion to substitute was filed.
On Aug. 27, 2020, Knauf Shaw LLP filed a motion with the Court to
withdraw as counsel for 10 of the individual plaintiffs. The Court
granted that motion on Sept. 1, 2020. Knauf Shaw LLP was ordered to
serve the newly pro se plaintiffs with a copy of the minute entry
granting the motion and requiring those plaintiffs to write to the
Court to update their addresses by Sept. 22, 2020. Most of the
Plaintiffs failed to do so.
Presently before the Court are eight motions. On Dec. 8, 2021, the
Defendants filed a motion to dismiss the claims of John Ramsperger
for failure to file a motion to substitute pursuant to Federal Rule
of Civil Procedure 25(a)(1). On Dec. 27, 2021, the Defendants filed
motions to dismiss claims asserted by Chad Anderson, Julie
Anderson, John Turano, Sherrie Turano, Nicole Thibault, Peter
Schuch, and John Fish (collectively, "Plaintiffs") pursuant to
Federal Rules of Civil Procedure 12(c), 16(f)(1)(C), and 41(b), and
Local Rule 5.2(d).
II. Discussion
A. Dismissal of John Ramsperger's Claims
Federal Rule of Civil Procedure 25(a)(1) states that if a motion to
substitute "is not made within 90 days after service of a statement
noting the death of a party, the action by or against the decedent
must be dismissed." As set forth, notice of John Ramsperger's death
was filed on the Court's electronic docket on May 13, 2020. This
started the clock. Well more than 180 days -- encompassing the 90
days permitted by Rule 25(a)(1) and the granted extension -- have
passed and no motion to substitute has been filed. Therefore, Judge
Geraci will grant the Defendants' motion to dismiss the claims of
John Ramsperger.
B. Dismissal of Plaintiffs' Claims
The Defendants move to dismiss the claims brought by the Plaintiffs
for several reasons. First, they note that these Plaintiffs have
not participated in the litigation since Knauf Shaw LLP withdrew as
their counsel over a year and a half ago. Second, they have not
complied with the Court's order directing them to update their
addresses. Third, they argue that these Plaintiffs' claims are
barred under the doctrine of res judicata based on the class action
settlement that was entered in D'Amico v. Waste Management of New
York, LLC, No. 6:18-cv-6080 (W.D.N.Y.). Finally, the Defendants add
that the Plaintiffs' claims are barred under the release and
covenant not to sue contained within the D'Amico settlement
agreement.
Judge Geraci holds that no justification for the Plaintiffs'
noncompliance is discernable. This is supported by the fact that
the Plaintiffs were served with the Court's instruction. It is
further supported by the fact that one of the other plaintiffs
previously represented by Knauf Shaw LLP wrote to the Court to
update his address. Again, the Plaintiffs have been afforded
approximately a year and a half to comply with the Court's
instruction or inform the Court of any issues but have chosen
otherwise. While the Court's order did not contain a warning of the
consequences of noncompliance, the Court has been effectively
prevented from warning them now that the action is subject to
dismissal because of their own failure to keep the Court apprised
of their addresses."
Pursuant to Local Rule 5.2(d) and Federal Rule of Civil Procedure
16(f), Judge Geraci granted the Defendants' motions to dismiss the
claims of the Plaintiffs but does so without prejudice based on the
lack of explicit warning of such a possible consequence in the
minute entry sent to them.
III. Conclusion
For the foregoing reasons, Judge Geraci granted the Defendants'
motion to dismiss the claims of Plaintiff John Ramsperger; and the
Defendants' motions to dismiss the claims of Plaintiffs Chad
Anderson, Julie Anderson, John Turano, Sherrie Turano, Nicole
Thibault, Peter Schuch, and John Fish. The Clerk of the Court is
respectfully directed to terminate these Plaintiffs as parties to
the action.
A full-text copy of the Court's April 6, 2022 Decision & Order is
available at https://tinyurl.com/2s4zxt99 from Leagle.com.
WEWORK COMPANIES: Illinois Court Dismisses Osborne BIPA Suit
------------------------------------------------------------
District Judge Edmond E. Chang of the U.S. District Court for the
Northern District of Illinois, Eastern Division, grants the
Defendants' motion to dismiss the lawsuit styled ELLIOTT OSBORNE,
individually and on behalf of all others similarly situated,
Plaintiff v. WEWORK COMPANIES, INC., et al., Defendants, Case No.
1:19-CV-08374 (N.D. Ill.).
In 2019, Elliot Osborne filed a proposed class-action complaint in
Cook County Circuit Court against WeWork Companies (and its various
affiliates) under the Illinois Biometric Information Privacy Act.
WeWork removed the case to federal court under the Class Action
Fairness Act, 28 U.S.C. Section 1332(d). After directing briefing
from the parties on the issue of subject matter jurisdiction, this
Court held that Osborne had Article III standing for all of his
BIPA claims.
WeWork now moves to dismiss the Complaint again, arguing primarily
that a class-action BIPA settlement in state court has released
Osborne's claims against WeWork.
I. Background
The Court construes WeWork's motion as an early summary judgment
motion (and Osborne has submitted evidence in response to it). The
Court, thus, views the evidence in the light most favorable to the
non-moving party.
WeWork is a company that rents out shared office space to tenants
ranging from freelancers to global corporations. Elliot Osborne
worked in a WeWork office space in Chicago in 2017. According to
Osborne, WeWork required him to have a photograph of his face taken
to use as a method for monitoring him in WeWork's office space. He
alleges that WeWork's use of his biometric data violated the
Illinois Biometric Information Privacy Act.
First, the Plaintiff alleges that WeWork failed to publish and
adhere to a policy for retaining and (eventually) deleting
biometric data, as required by Section 15(a) of the Act. Next,
Osborne alleges that WeWork failed to inform him of how they would
be using his biometric data, and failed to obtain his written
consent to gather his biometric data, in violation of Section 15(b)
of the Act. Finally, he alleges that WeWork disclosed his biometric
data to third-parties without his consent, in violation of Section
15(d) of the Act.
Throughout the time that Osborne worked in a WeWork office space,
WeWork used a biometric-information software called NetVerify for
facial-recognition and identity-verification services. WeWork
purchased this biometric-identification service from the technology
company Jumio. In April 2019, Jumio was sued in state court in a
class-action case alleging multiple BIPA violations based on its
facial-recognition software (Prelipceanu v. Jumio Corp, 18 CH
15883).
The parties in Jumio reached a settlement agreement and the Jumio
court certified the Settlement Class to include:
All individuals in Illinois whose Biometrics or photos were
collected, captured, purchased, received through trade,
otherwise obtained or in the possession of Jumio and/or any
of its parents, subsidiaries, or agents, or their
technology, at any time between December 21, 2013 and
December 23, 2019.
The Jumio case settlement class list included the Plaintiff here,
Elliott Osborne. A postcard was mailed to Osborne on Jan. 27, 2020,
telling him that he was a member of the Jumio settlement class
because his biometrics had been collected. . . . The notice said
that a proposed settlement had been reached in a class-action
lawsuit against Jumio for its facial-recognition technology,
NetVerify, and that a $7,000,000 Settlement Fund had been
established.
The postcard provided more information about the proposed
settlement, including an informational website, who can file a
claim, and how Osborne's rights (as a member of the settlement
class) could have been affected by the settlement. The notice
instructed Osborne that if he did not wish to be legally bound by
the settlement, he had to exclude himself. The notice also stated
that Osborne could object to the proposed settlement if he wished
to. The Settlement Administrator, KCC Class Action Services, did
not receive a request for exclusion from Osborne, nor did it
receive a claim form.
Significantly, the Jumio settlement agreement defines "Released
Parties" to include not only Jumio but also, among others, its
customers.
WeWork argues that because Osborne did not exclude himself from the
Jumio settlement he is a member of the settlement class, and thus,
the settlement released his claims against WeWork.
II. Legal Standard
In moving to dismiss, WeWork argues that Osborne's claims have been
mooted by the Jumio settlement, and that the Court now lacks
subject matter jurisdiction. WeWork's motion refers to Federal Rule
of Civil Procedure 12(b)(1), which is the vehicle by which to bring
a dismissal motion for lack of subject matter jurisdiction.
But WeWork's argument is not really an issue of subject matter
jurisdiction, Judge Chang notes. Instead, WeWork is actually
arguing that Osborne's claims were released in the Jumio
settlement. The defense of release is not a subject matter
jurisdiction problem. So the Court construes WeWork's motion as an
early motion for summary judgment, and indeed Osborne responded by
submitting evidence against the motion (but did not seek
discovery).
III. Analysis
Mr. Osborne argues that the Jumio settlement did not release his
BIPA claims against WeWork. On the premise that WeWork has filed a
summary judgment motion on the purported release, the overarching
question is whether there is a genuine dispute of material fact on
the release's application to the claims in Osborne's federal
complaint, Judge Chang explains. Settlement agreements are like any
other contracts, and thus a release within a settlement agreement
is governed by ordinary contract principles under state law.
Judge Chang states that Osborne was identified and listed as a
member of the Jumio class. Class members were given the opportunity
to exclude themselves from the settlement class, in which case they
would not be bound by the Final Order and Agreement. But Osborne
did not opt-out and exclude himself from the class settlement.
Osborne does not contest that he failed to opt-out of the
settlement class (nor does he even acknowledge the opt-out
option).
Judge Chang finds that the Plaintiff presents no argument or
explanation as to why he did not exclude himself from the class
settlement, and there are no allegations about the effectiveness of
the opt-out request. So Osborne's whole argument, then, is that
"Settled Claims against the Released Parties" as defined in the
Settlement agreement does not include Jumio's customers and the
customers' violations.
Mr. Osborne offers a distinction between the private-entity Jumio
customer (WeWork) and the biometric vendor itself (Jumio). He
argues that Jumio's BIPA violations and WeWork's BIPA violations
are different, and that the settlement only released WeWork from
liability for Jumio's BIPA violations, not WeWork's own separate
violations. WeWork responds that this argument was rejected by the
state court in Jumio, and that the clear and unambiguous definition
of Released Parties in the Jumio settlement agreement covers
WeWork.
The dispute is, thus, a matter of contract interpretation, Judge
Chang notes. When a release is unambiguous, the Court must construe
it as written. Judge Chang finds that WeWork is right: the text
that defines the settled claims and the Released Parties
unambiguously includes all of Osborne's BIPA claims against
WeWork.
Judge Chang opines that the pertinent definitions cover WeWork and
any BIPA claims against it: it is a Customer of the NetVerify
service, and Osborne is trying to assert a claim based on Jumio's
collection and handling of biometric information.
Judge Chang adds, among other things, that it might very well be
true, as Osborne argues, that a violation of BIPA by a
biometric-information vendor stands separate and apart from the
BIPA violation of its client. The Court need not decide that issue
because the text of the settlement agreement broadly and clearly
covers both. Whether or not Osborne's claims could be construed as
WeWork's own distinct BIPA violations, all of the claims have been
released. That is not at all surprising in this type of
class-action settlement, given the potential indemnity and claims
that Jumio might face from its customers if the Released-Parties
definition had not included customers.
The state court settlement agreement, through its specific and
unambiguous definitions, releases claims against Jumio customers,
such as WeWork, and the state court found that the claims were
released for adequate consideration, Judge Chang points out. There
is no genuine dispute of material fact--the Jumio settlement
release applies to the claims in Osborne's complaint and so
Osborne's claims in this case against WeWork have been released.
IV. Conclusion
Summary judgment is granted in favor of the Defendants based on the
release. The case is dismissed with prejudice as to Osborne's
individual claims and without prejudice as to the proposed class
claims. The status hearing of April 8, 2022, is vacated. Final
judgment will be entered.
A full-text copy of the Court's Memorandum Opinion and Order dated
March 31, 2022, is available at https://tinyurl.com/mr2cnn7p from
Leagle.com.
WILSON & SON: Picon Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Wilson & Son Ltd. The
case is styled as Yelitza Picon, on behalf of herself and all other
persons similarly situated v. Wilson & Son Ltd., Case No.
1:22-cv-03082 (S.D.N.Y., April 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Wilson Sons -- https://ri.wilsonsons.com.br/en/ -- is the largest
integrated port and maritime logistics operator in the Brazilian
market and offers supply chain solutions.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: michael@gottlieb.legal
[^] CLASS ACTION Money & Ethics Conference on May 2 - Be A Speaker
------------------------------------------------------------------
Beard Group, Inc. is hosting the 6th Annual Class Action Money &
Ethics Conference on Monday, May 2nd.
The conference will be held in person at The Harmonie Club in
Manhattan. Major sponsors include Baird Mandalas Brockstedt LLC,
and Schochor, Federico and Staton, P.A.
Showcase your firm's expertise on a panel in front of class action
attorneys, general counsel, litigation financiers, consultants,
claims administrators, reporters and academics.
For the most complete agenda and to register: visit:
www.classactionconference.com
Interested in being a sponsor, contact:
Bernard Toliver, CMP
Tel: (240) 629-3300 ext. 149
E-mail: bernard@beardgroup.com
For more conference information, or to register, visit us at
https://www.classactionconference.com/
Asbestos Litigation
ASBESTOS UPDATE: EPA Proposes to Ban Importation of Asbestos
------------------------------------------------------------
Robert Preidt, from HealthDay News, reports that a proposed rule to
ban ongoing uses of the only known form of asbestos imported into
the United States has been introduced by the U.S. Environmental
Protection Agency (EPA).
The ban would apply to chrysotile asbestos, which is known to cause
cancer and is found in products like asbestos diaphragms, sheet
gaskets, brake blocks, aftermarket automotive brakes/linings, other
vehicle friction products, and other gaskets imported into the
United States
The proposed rule would rectify a 1991 court decision that largely
overturned the EPA's 1989 ban on asbestos and significantly
weakened the agency's authority to reduce risks to human health
from asbestos or other existing chemicals, the EPA said.
"Today, we're taking an important step forward to protect public
health and finally put an end to the use of dangerous asbestos in
the United States," EPA administrator Michael Regan said in an
agency news release. "This historic proposed ban would protect the
American people from exposure to chrysotile asbestos, a known
carcinogen."
Asbestos is banned in more than 50 countries and its use in the
United States has been declining for years. Most consumer products
that historically contained chrysotile asbestos have been
discontinued in the United States, and raw chrysotile asbestos
currently imported into the United States is used exclusively by
the chlor-alkali chemical industry.
Chlor-alkali chemicals are used in a number of sectors of the U.S.
economy and in drinking water treatment, which uses chlorine
manufactured through the chlor-alkali process.
There are alternatives to asbestos-containing diaphragms for
chlor-alkali plants. The use of alternatives, specifically membrane
cells, accounts for almost half of the country's chlor-alkali
production, according to the EPA.
The agency is also evaluating other types and uses of asbestos,
including its use in talc and talc-containing products.
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