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C L A S S A C T I O N R E P O R T E R
Friday, May 6, 2022, Vol. 24, No. 85
Headlines
3M COMPANY: Califf Sues Over Exposure to Toxic Film-Forming Foams
3M COMPANY: Neal Sues Over Exposure to Toxic Film-Forming Foams
3M COMPANY: Ross Sues Over Exposure to Toxic Film-Forming Foams
3M COMPANY: Schaack Sues Over Exposure to Toxic Film-Forming Foams
3M COMPANY: Sexton Sues Over Exposure to Highly Toxic Chemicals
3M COMPANY: Sullivan Sues Over Exposure to Toxic Foams
AETNA LIFE: N.D. California Certifies Class in Kazda ERISA Suit
BOSWORTH COMPANY: Dickson Seeks to Certify Collective Action
BOTTLING GROUP: Skates Files Suit in Cal. Super. Ct.
BRODIE CONTRACTORS: Bermudez Sues Over Unpaid Promised Wages
CHELMSFORD GROUP: Smith Bid to Certify Class Tossed w/o Prejudice
EXXON MOBIL: Hearing on Class Certification Bid Reset to June 7
FLYING S. WINGS: Pender Seeks Conditional Cert of Collective Action
FULL TRUCK ALLIANCE: Faces Shareholder Suit in New York Over IPO
GOLDEN VALLEY: Santos Files Suit in Cal. Super. Ct.
HOLSTEN JEWELERS: Picon Files ADA Suit in S.D. New York
HYUNDAI MOTOR: Pluskowski Files Suit in C.D. California
JOHN HANCOCK LIFE: Sued Over Extreme Invasion of Privacy
KADENCE HEALTHCARE: Rodriguez Files Suit in Cal. Super. Ct.
KEYPOINT GOVERNMENT: Appeals Decertification Bid Denial in Brayman
LANDMARK REALTY: Cheatem Files Bid for Class Certification
LIBERTY ENERGY: Faces Marshall Securities Suit in Colorado
LIBERTY ENERGY: Settlement in Principle Entered in Joseph Suit
LIFEVANTAGE CORP: Smith Loses Class Status Bid w/o Prejudice
LORILIL JEWELERS: Picon Files ADA Suit in S.D. New York
M&T BANK: Court Sets Class Cert Briefing Schedule in Jaroslawicz
M.A.C. COSMETICS: Maciel Files Suit in Cal. Super. Ct.
NEW JERSEY: District Court Narrows Claims in Salvato v. Harris
NEXA MORTGAGE: Januszewski Suit Removed to S.D. Florida
NORTH CAROLINA: Award of Attys.' Fees in Grabarczyk Suit Affirmed
OREGON: Appeals Class Certification Ruling in Maney Suit
PINDUODUO INC: Pending Shareholder Suits Dismissed
PINNACLE AGRICULTURE: Judgment on Pleadings in Coronel Suit Upheld
PLATINUM RESTAURANTS: Green's $850K Class Deal Wins Prelim. Nod
POINT PARK: Time to Complete Discovery Extended in Figueroa
PREMIER NUTRITION: Bid to Decertify Class in Montera Suit Denied
RHODE ISLAND: Partly Compelled to Show Docs in Liberty v. RIDOC
RITE AID: Byron Drug Price-Rigging Suit Stayed Pending Mediation
RITE AID: Josten Securties Suit Stayed Pending Mediation
ROYAL CANIN: Wullschleger Appeals Antitrust Suit Dismissal
SANMEDICA INT'L: Pizana Wins Leave to File Third Amended Complaint
SCORES HOLDING: De Oliveira Class Suit Discontinued
SEI INVESTMENTS: Securities Class Actions in Louisiana Tossed
TFORCE LOGISTICS: Lim Bid to File Documents Under Seal Nixed
TOYOTA MOTOR: Khalil, et al., Must File Class Cert Bid by May 26
TRAVELEX INSURANCE: Scheduling Order Entered in Haas Class Suit
TUSCALOOSA COUNTY, AL: Court Dismisses Beasley's Amended Class Suit
UKG INC: Bente Suit Transferred to N.D. California
UNITED STATES: Appeals Prelim. Injunction Ruling in Officer's Suit
UNITED STATES: Seeks to Dismiss All Claims Asserted in Libman FAC
VOLUME SERVICES: Settlement in Jeffries Suit Gets Initial Nod
VOLVO CAR USA: Buchanan Sues Over Defective Piston Rings
VVF INTERVEST: Ruling on Robertson Bid to Certify Class Deferred
WALMART INC: Ct. Amends Class Cert. Briefing Schedule in Powell
WELCH FOODS: Clevenger Suit Seeks to Certify Two Classes
WEST VIRGINIA UNIVERSITY: Writ of Prohibition in Thomack Denied
WESTCHESTER JEWELRY: Picon Files ADA Suit in S.D. New York
WFM PRIVATE: Revised Case Scheduling Order Entered in Kellman Suit
WORCESTER POLYTECHNIC: Brigati Seeks Final OK of Class Settlement
XEROX CORP: Bid to Dismiss Carrigan Class Action Nixed
YALLA GROUP: Shareholder Suit in New York Voluntarily Dismissed
YAMHILL COUNTY, OR: Edwards Appeals Civil Rights Suit Dismissal
ZOOMINFO TECHNOLOGIES: Appeals Denial of Bid to Dismiss Martinez
Asbestos Litigation
ASBESTOS UPDATE: Travelers Cos. Has 1.30BB Reserves at March 31
*********
3M COMPANY: Califf Sues Over Exposure to Toxic Film-Forming Foams
-----------------------------------------------------------------
Edward Califf, 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-01266-RMG (D.S.C., April 15,
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
tonsil 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
3M COMPANY: Neal Sues Over Exposure to Toxic Film-Forming Foams
---------------------------------------------------------------
Anthony Neal, 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-01268-RMG (D.S.C., April 15,
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
3M COMPANY: Ross Sues Over Exposure to Toxic Film-Forming Foams
---------------------------------------------------------------
Michael Ross, 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-01264-RMG (D.S.C., April 15,
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
bladder 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
3M COMPANY: Schaack Sues Over Exposure to Toxic Film-Forming Foams
------------------------------------------------------------------
Paul Schaack, 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.), and ABC CORPORATIONS (1-50), Case No.
2:22-cv-01226-RMG (D.S.C., April 14, 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:
Stephen T. Sullivan, Jr., Esq.
John E. Keefe, Jr., Esq.
WILENTZ, GOLDMAN & SPITZER P.A.
125 Half Mile Road, Suite 100
Red Bank, NJ 07701
Phone: 732-855-6060
Facsimile: 732-726-4860
3M COMPANY: Sexton Sues Over Exposure to Highly Toxic Chemicals
---------------------------------------------------------------
Dewayne Sexton, and other similarly situated v. 3M COMPANY fka
MINNESOTA MINING & MANUFACTURING CO.; BUCKEYE FIRE EQUIPMENT CO.;
CHEMGUARD, INC.; CORTEVA, INC.; DUPONT DE NEMOURS, INC.; DYNAX
CORPORATION; E.I. DUPONT DE NEMOURS & CO.; KIDDE-FENWALL, INC.;
KIDDE FIRE FIGHTING, INC.; KIDDE PLC, INC.; NATIONAL FOAM, INC.;
THE CHEMOURS CO.; THE CHEMOURS COMPANY FC, LLC; TYCO FIRE PRODUCTS,
LP; UTC FIRE & SECURITY AMERICA'S, INC; and DOES 1 to 100,
INCLUSIVE;, Case No. 2:22-cv-01262-RMG (D.S.C., April 14, 2022), is
brought involving highly toxic chemicals which have earned the
designation "the forever chemicals" because they do not breakdown
and their insidious nature allows them to travel through soil and
into groundwater while maintaining their deadly nature for
decades.
This action deals with Aqueous Film Forming Foams ("AFFF") that
were designed, manufactured and sold as firefighting compounds.
AFFF compounding includes Perfluoro octane Sulfonate (commonly
known as "PFOS"), PerfluorooctanoicAcid (commonly known as "PFOA"),
and/or other Per-and Polyfluoroalkyl substances (together, with
PFOS and PFOA, commonly known as "PFAS") which are manmade
organofluorine compounds (in this case commonly referred to as
fluorinated surfactants/fluorocarbon surfactants). The compounds
are designed to lower the surface tension of water so as to create
a firefighting foam to quell/smother (cutting off oxygen), for
example, jet fuel fires.
AFFF is created by mixing fluorine-free hydrocarbon foaming
substances (chemical agents designed for a particular purpose) with
fluorinated surfactants and mixing that with water which creates an
aqueous film, i.e.: Aqueous Film Forming Foams ("AFFF"). The
manufacturing processes involved in this action are asserted to
have used fluorocarbon surfactants which are believed to include
PFOS and PFOA (and/or other per fluorinated compounds known as
"PFC"' are also believed to be in the mix. PFC's are posited to
break down in PFOS and PFOA).
The Plaintiff joined the USMC in 1980 and was subsequently assigned
to El Toro, CA (1980-1983). The Plaintiff lived/worked on Base at
El Toro using and drinking the water. El Toro has a PFAS
environmental contamination level of 3,826 ppt. (EPA max of 70ppt |
California. Response max 10-40ppt). In 2016, Sexton was diagnosed
with thyroid disease and commenced on-going medical treatment
inclusive of chemotherapy and radiation. As known by Defendants,
thyroid disease is a disease linked to PFAS contamination. Sexton
did not discover that PFAS was a cause of the harm until
approximately Spring 2020, when he saw internet information, says
the complaint.
The Plaintiff was a member of the U.S. Marine Corps, who during his
service was stationed at MCAS El Toro, a military installation
identified as being contaminated through use of the toxic chemicals
which are the subject of this action.
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:
Jeremy C. Shafer, Esq.
BANNER LEGAL
445 Marine View Avenue, Suite 100
Del Mar, CA 92014
Phone: (760) 479-5404
Email: jshafer@bannerlegal.com
- and -
S. James Boumil, Esq.
BOUMIL LAW OFFICES
120 Fairmount Street
Lowell, MA, 01852
Phone: (978) 458-0507
Email: sjboumil@boumil-law.com
- and -
Konstantine Kyros, Esq.
KYROS LAW
17 Miles Rd.
Hingham, MA 02043
Phone: (800) 934-2921
Email: kon@kyroslaw.com
3M COMPANY: Sullivan Sues Over Exposure to Toxic Foams
------------------------------------------------------
John Sullivan and Sandra Sullivan, his wife, 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.), and ABC
CORPORATIONS (1-50), Case No. 2:22-cv-01222-RMG (D.S.C., April 14,
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 Michael Nolan 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:
Stephen T. Sullivan, Jr., Esq.
John E. Keefe, Jr., Esq.
WILENTZ, GOLDMAN & SPITZER P.A.
125 Half Mile Road, Suite 100
Red Bank, NJ 07701
Phone: 732-855-6060
Facsimile: 732-726-4860
AETNA LIFE: N.D. California Certifies Class in Kazda ERISA Suit
---------------------------------------------------------------
In the case, MICHALA KAZDA, Plaintiff v. AETNA LIFE INSURANCE
COMPANY, Defendant, Case No. 19-cv-02512-WHO (N.D. Cal.), Judge
William H. Orrick of the U.S. District Court for the Northern
District of California granted the Plaintiff's motion for class
certification.
I. Background
Plaintiff Kazda seeks certification of a class of people covered by
Employee Retirement Income Security Act ("ERISA") health plans
administered by Defendant Aetna whose claims for liposuction
treatment of their lipedema were denied as cosmetic.
Ms. Kazda suffers from advanced lipedema, a rare condition that
involves an abnormal buildup of fat tissue, typically in the lower
body. A surgery called "tumescent liposuction" or "suction
lipectomy" is the "only effective treatment for the pain and
immobility caused by lipedema." Aetna health plans include a
general exclusion for "cosmetic services and plastic surgery,"
described as "any treatment, surgery (cosmetic or plastic), service
or supply to alter, improve or enhance the shape or appearance of
the body." It also uses what are known as Clinical Policy Bulletins
("CPBs"), which are "extra-contractual written directives on
coverage positions Aetna takes with respect to commonly encountered
treatments.
Ms. Kazda was covered under an Aetna health insurance plan through
her husband's employer, the benefits of which were self-insured by
the employer. After Kazda was diagnosed with Stage 3 lipedema, she
requested in writing that Aetna provide coverage for tumescent
liposuction and related procedures. Aetna denied the request in a
letter dated April 25, 2018. Kazda appealed Aetna's decision
through her surgeon. Aetna denied the appeal in a letter dated June
5, 2018. Kazda appealed again via a phone call on Oct. 24, 2018. In
a letter dated five days later, Aetna denied the additional
appeal.
Ms. Kazda filed the class action lawsuit against Aetna on May 9,
2019, alleging that it improperly denied claims for surgical
treatment of lipedema as cosmetic. She brought two claims under
ERISA, denial of plan benefits and breach of fiduciary duty, and
sought in part a clarification of rights and injunctive relief.
After Judge Orrick granted Aetna's motion to dismiss without
prejudice, Kazda filed an amended complaint bringing the same
claims.
After Kazda brought suit, Aetna revised CPB 0211. The new CPB 0211,
published on Aug. 28, 2020, specifically mentions lipedema. The
revised CPB 0211 also specifies that "Aetna considers suction
lipectomy cosmetic for indications other than lipedema." According
to Kazda, Aetna has not notified putative class members of the
change or reprocessed their previously denied claims.
Ms. Kazda filed the motion for class certification on Dec. 7,
2021.
II. Discussion
A. Motion for Class Certification
The party seeking certification must first satisfy the four
requirements of Rule 23(a): numerosity, commonality, typicality,
and adequacy. Specifically, Rule 23(a) requires a showing that: (1)
the class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact common to the
class; (3) the claims or defenses of the representative parties are
typical of those of the class; and (4) the representative parties
will fairly and adequately protect the interests of the class.
The party seeking certification must then establish one of three
grounds set forth in Rule 23(b). Kazda seeks certification under
Rule 23(b)(1) and 23(b)(2). A class action may proceed under Rule
23(b)(1) if "prosecuting separate actions by or against individual
class members would create a risk of: (A) inconsistent or varying
adjudications with respect to individual class members that would
establish incompatible standards of conduct for the party opposing
the class; or (B) adjudications with respect to individual class
members that, as a practical matter, would be dispositive of the
interests of the other members not party to individual
adjudications or would substantially impair or impede their ability
to protect their interests.
Ms. Kazda seeks certification of the following class: "All persons
covered under ERISA health plans, self-funded or fully insured,
that are administered by Aetna and whose claims for liposuction
treatment of their lipedema were denied as cosmetic."
Judge Orrick concludes that Kazda has standing to seek declaratory
and injunctive relief requiring Aetna to reprocess the class
members' previously denied claims and notify them of its policy
change. Her claims are typical. She is an adequate representative.
She has also sufficiently alleged questions common to the
class—namely, whether Aetna had a policy or practice of denying
these claims as cosmetic—that will drive the resolution of the
matter. And although the class is small, given the circumstances of
the case, certification is appropriate. Certification is also
appropriate under Rule 23(b)(1)(A), as separate suits would risk
establishing incompatible standards of conduct for Aetna, and Rule
23(b)(2), as the relief sought is appropriate for the class as a
whole.
Having met the requirements set forth in Rule 23, Judge Orrick
granted Kazda's motion for class certification.
B. Motion to Seal
The parties filed four motions to seal in connection with the
motion for class certification. The parties seek to seal numerous
exhibits (and portions of documents referencing those exhibits)
that fall into three primary categories: Kazda's medical records,
third party medical records, and internal Aetna documents that it
contends contain confidential and competitive business
information.
First, Judge Orrick granted the requests to seal Exhibits 59, 60,
and 61 (filed with the motion for class certification); Exhibits 1
and 7 of the Austin declaration (filed with the opposition); and
Exhibit 89 (filed with the reply). These exhibits contain Kazda's
personal health information, which courts in this district
recognize as meeting the compelling reasons standard. However, he
denied Aetna's request to seal Exhibits 2 and 4-9 of the Austin
declaration, as are the requests to seal portions of the opposition
that reference these exhibits.
Judge Orrick will consider a more tailored motion to seal, which
Aetna may file within 114 days of the issuance of the Order. Until
that deadline has passed and I have reviewed any motion that is
filed, the Court will not unseal these exhibits. Should Aetna file
another motion, it should attach a version of the opposition
highlighting the portions for which sealing is sought as required
by Local Rule 79-5(e)(2).
Second, the request to seal Exhibits 17, 19, 21, 23, 30, 64, 66,
68, 70-73, 75, 78, and 83-85 (attached to the class certification
motion) and Exhibits S and T (attached to the opposition) are
granted. All but one of these exhibits are internal Aetna files
with notes about third-party claims. (Exhibit 75 is an appeal of
Aetna's denial of coverage that includes a detailed case history of
the claimant). These documents not only contain personal health
information but that of third parties, disclosure of which would
cause a serious invasion of privacy.
For the same reasons, the request to seal portions of documents
that reference these particular exhibits is denied. That includes:
Lines 5:11-14, 6:2-6:4, 6:18-19, and 6:27-28 of the class
certification motion, and Lines 189:17-25 of the McDonough
deposition.
Finally, the request to seal Exhibit E to the Aetna's supplemental
declaration is denied. While some portions of the deposition
testimony reference the personal health information of third
parties, Judge Orrick finds that the deposition also covers other
topics. The request is therefore not narrowly tailored to seek
sealing only of sealable material. Again, he would consider a more
narrow request, which Aetna must file within 14 days of the
issuance of this Order.
Third, the request to seal Exhibits 52, 54, 55, 58, and 82
(attached to the motion for class certification) and Exhibits G and
L (attached to the opposition. Aetna has satisfactorily shown that
these exhibits contain non-public information about Aetna's
business practices that, if disclosed, could prejudice or harm
Aetna by providing its competitors with information about Aetna's
specific claim-handling policies. The requests to seal the portions
of documents that reference these materials are also granted. This
includes: Lines 7:16-20 and 8:1-3 of the class certification
motion, Page 151 of the McDonough deposition, and Lines 5:11-14 of
the McDonough declaration.
III. Conclusion
For the reasons stated, Judge Orrick concludes that Kazda has
satisfied the requirements for class certification under Rule 23.
The following class is certified: All persons covered under ERISA
health plans, self-funded or fully insured, that are administered
by Aetna and whose claims for liposuction treatment of their
lipedema were denied as cosmetic.
Ms. Kazda is appointed class representative and her counsel the
class counsel.
A Case Management Conference is set for May 31, 2022, at 2:00 p.m.
A Joint Case Management Statement is due by May 24, 2022.
A full-text copy of the Court's April 26, 2022 Order is available
at https://tinyurl.com/4u7924vb from Leagle.com.
BOSWORTH COMPANY: Dickson Seeks to Certify Collective Action
------------------------------------------------------------
In the class action lawsuit captioned as STEVEN DICKSON, and all
others similarly situated under 29 USC section 216(b), v. THE
BOSWORTH COMPANY, LTD., Case No. 7:22-cv-00010-DC-RCG (W.D. Tex.),
the Plaintiff asks the Court to enter an order certifying
collective action on behalf of himself and all similarly situated
employees, and to authorize notice as follows:
"All current and former non-exempt technicians, plumbers,
electricians, and helpers (whether referred to as journeyman,
apprentice, or otherwise) employed by The Bosworth Company,
Ltd. within three years"
The Defendant The Bosworth Company, Ltd. employed Plaintiff and
similarly situated employees as non-exempt employees to perform
manual or technical labor to provide Defendant's products and
services to customers at their homes or places of business.
Non-billable work includes all work activities that will not be
billed to a client, such as reporting to the Defendant's place of
business before going to service Defendant's customers, calling on
potential customers, returning to Defendant's place of business
between jobs during the day or at the end of the day, preparing
tools and equipment, obtaining supplies for jobs, cleaning company
owned vehicles, receiving job assignments, completing company
paperwork, speaking with supervisors, or organizing into teams to
respond to service calls. Defendant did not track or pay for
non-billable work unless it was specifically approved by
management.
Daily, the Plaintiff and similarly situated employees performed
non-billable work without compensation, resulting in unpaid
overtime compensation for all non-billable hours worked over forty
hours in the workweek. Defendant's practice applied to all
technicians, plumbers, electricians, and their respective helpers.
Bosworth provides the Permian Basin with quality HVAC, air quality,
plumbing & electrical services.
A copy of the Plaintiff's motion to certify class dated April 19,
2022 is available from PacerMonitor.com at https://bit.ly/3KwVK5m
at no extra charge.[CC]
The Plaintiff is represented by:
Fernando M. Bustos, Esq.
Matthew N. Zimmerman, Esq.
Brandon C. Callahan, Esq.
BUSTOS LAW FIRM, P.C.
P.O. Box 1980
Lubbock, TX 79408-1980
Telephone: (806) 780-3976
Facsimile: (806) 780-3800
E-mail: fbustos@bustoslawfirm.com
mzimmerman@butsoslawfirm.com
bcallahan@bustoslawfirm.com
BOTTLING GROUP: Skates Files Suit in Cal. Super. Ct.
----------------------------------------------------
A class action lawsuit has been filed against Bottling Group, LLC,
et al. The case is styled as Joseph Skates, on behalf of all other
similarly situated v. Bottling Group, LLC, CB Manufacturing
Company, Inc., Does 1-20, Inclusive, Case No.
34-2022-00318959-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., April
27, 2022).
The case type of suit is stated as "Other Employment – Civil
Unlimited."
Bottling Group LLC, doing business as Pepsi Beverages Company, --
https://www.pepsico.com/ -- manufactures, distributes, and sells
non-alcoholic beverages.[BN]
The Plaintiff is represented by:
Kent L. Bradbury, Esq.
LAW OFFICE OF KENT BRADBURY
2999 Douglas Blvd., Ste. 180
Roseville, CA 95661-4219
Phone: 916-587-9105
Email: kb@castleemploymentlaw.com
BRODIE CONTRACTORS: Bermudez Sues Over Unpaid Promised Wages
------------------------------------------------------------
Jorge Reyes Bermudez, on behalf of himself and all other similarly
situated persons v. BRODIE CONTRACTORS INC. and JOSÉ ISABEL
CARBAJAL CHAVEZ, Case No. 5:22-cv-00147-FL (E.D.N.C., April 19,
2022), is brought under the Fair Labor Standards Act seeking
compensation for unpaid promised wages.
The Defendants jointly suffered or permitted the Plaintiff to work
for substandard wages at less than the overtime rate required by
the FLSA for all of the many workweeks longer than 40 hours when
the weekly wages that the Plaintiff received from the Defendants
for that overtime work were not at the overtime rate required by
the FLSA, says the complaint.
The Plaintiff was employed by the Defendants performing the
bricklaying and cinderblock construction work.
Brodie Contractors Inc. is a general contracting company that
specializes in large commercial masonry construction projects for
public, governmental, and private customers.[BN]
The Plaintiff is represented by:
Robert J. Willis, Esq.
LAW OFFICE OF ROBERT J. WILLIS, P.A.
P.O. Box 1828
Pittsboro, NC 27312
Phone: (919)821-9031
Fax: (919)821-1763
488 Thompson Street
Pittsboro, NC 27312
Email: rwillis@rjwillis-law.com
- and -
Chris W. Haaf, Esq.
CHRIS HAAF LAW PLLC
2806 Reynolda Road #123
Winston-Salem, NC 27106
Phone: (336) 354-7643
Phone: Fax: (336) 770-2781
Email: chris@haaflegal.com
CHELMSFORD GROUP: Smith Bid to Certify Class Tossed w/o Prejudice
-----------------------------------------------------------------
In the class action lawsuit captioned as SCOTT SMITH, on behalf of
himself and other similarly situated individuals, v. CHELMSFORD
GROUP, LLC, a Delaware limited liability company, and NEWBURY
MANAGEMENT COMPANY, a Michigan corporation, Case No. 1:21-cv-10654
(D. Mass.), the Hon. Judge Denise J. Casper entered an order
denying motion to certify class without prejudice to renew after
the resolution.
The Plaintiff has sued the Defendants because they did not change
his rent or anyone else's rent at their manufactured housing
community after the Master Lease expired on December 31, 2020. He
claims that by not changing anyone's rent, the Defendants triggered
a statute, G.L. c. 140, section 32L(2), that creates a presumption
of unfairness when a "change in rent" does not apply uniformly to
all residents of a similar class.[CC]
EXXON MOBIL: Hearing on Class Certification Bid Reset to June 7
---------------------------------------------------------------
In the class action lawsuit captioned as Ramirez v. Exxon Mobil
Corporation, et al., Case No. 3:16-cv-03111 (N.D. Tex.), the Hon.
Judge Ed Kinkeade entered an order resetting a hearing regarding
Lead Plaintiff's motion for class certification to Tuesday, June 7,
2022, at 9:00 A.M. in Courtroom 1627, United States District Court
for the Northern District of Texas, Dallas Division, located at
1100 Commerce Street, Dallas, Texas.
The Parties shall be prepared to present argument and evidence on
class certification at the hearing, the Court says.
The suit alleges violation of the Securities Exchange Act.
Exxon Mobil is an American multinational oil and gas corporation
headquartered in Irving, Texas.[CC]
FLYING S. WINGS: Pender Seeks Conditional Cert of Collective Action
-------------------------------------------------------------------
In the class action lawsuit captioned as Kayla Pender, individually
and on behalf of all others similarly situated, v. Flying S. Wings,
Inc. d/b/a Buffalo Wild Wings, Case No. 2:21-cv-04292-ALM-KAJ (S.D.
Ohio), the Plaintiff asks the Court to enter an order pursuant to
Section 216(b) of the Fair Labor Standards Act (FLSA), as follows:
1. Conditionally certifying the FLSA Collective and Ohio
Collective defined as:
-- FLSA Collective
"All individuals who worked as servers or bartenders at
any one or more of Defendants' Buffalo Wild Wings
restaurant franchises in Ohio or West Virginia at any
time since November 11, 2018 and were paid a direct
cash wage of less than minimum wage;" and
-- Ohio Collective
"All individuals who worked as servers or bartenders at
any one or more of Defendants' restaurants located in
Ohio at any time at any since November 11, 2018 and
were paid a direct cash wage of less than the Ohio
minimum wage for the year they worked."
2. Authorizing the Plaintiff's counsel to disseminate Court-
approved notice to the proposed collectives and
allowing putative collective members the option to consent
and opt-in to this action.
3. Requiring Defendants to provide an Excel file (.xls)
containing the names, addresses, e-mail addresses, dates
of employment, position(s) held, location(s) employed of
all putative collective members who meet any one or more
of the above collective definitions.
Buffalo Wild is an American casual dining restaurant and sports bar
franchise in the United States, Canada, India, Mexico, Oman,
Panama, Philippines, Saudi Arabia, United Arab Emirates, and
Vietnam which specializes in Buffalo wings and sauces.
A copy of the Plaintiff's motion to certify class Defendant's
motion dated April 19, 2022 is available from PacerMonitor.com at
https://bit.ly/3vDWxwY at no extra charge.[CC]
The Plaintiff is represented by:
Drew N. Herrmann, Esq.
Pamela G. Herrmann, Esq.
HERRMANN LAW, PLLC
801 Cherry St., Suite 2365
Fort Worth, TX 76102
Telephone: (817) 479-9229
Facsimile: (817) 840-5102
E-mail: drew@herrmannlaw.com
pamela@herrmannlaw.com
- and -
Robert E. DeRose, Esq.
BARKAN MEIZLISH DEROSE COX, LLP
4200 Regent Street, Suite 210
Columbus, OH 43219
Telephone: (614) 221-4221
Facsimile: (614) 744-2300
E-mail: bderose@barkanmeizlish.com
FULL TRUCK ALLIANCE: Faces Shareholder Suit in New York Over IPO
----------------------------------------------------------------
Full Truck Alliance Co. Ltd. disclosed in its Form 20-F Report for
the fiscal year ended December 31, 2021, filed with the Securities
and Exchange Commission on April 25, 2022, that the company and
certain of its current and former directors and officers and others
were named as defendants in a July 2021 putative shareholder class
action lawsuit filed in the Supreme Court of the State of New
York.
Since then, two additional actions have been filed in the Eastern
District of New York and the Supreme Court of the State of New
York. In October 2021, the two actions in the Supreme Court of the
State of New York were consolidated. The actions are brought on
behalf of a putative class of persons who purchased or acquired our
securities pursuant or traceable to our initial public offering in
the United States. All the complaints allege violations of the
Securities Act based on allegedly false and misleading statements
or omissions in our registration statement issued in connection
with the US IPO. In November 2021, a consolidated amended complaint
was filed in the Supreme Court of the State of New York, which the
company moved to dismiss in January, 2022. Plaintiffs filed their
opposition to said motion to dismiss in March 2022.
Full Truck Alliance operates a digital freight platform.
GOLDEN VALLEY: Santos Files Suit in Cal. Super. Ct.
---------------------------------------------------
A class action lawsuit has been filed against Golden Valley
Security, Inc. The case is styled as Michael Santos, on behalf of
himself and all other similarly situated and the general public v.
Golden Valley Security, Inc., Case No. 34-2022-00318946-CU-OE-GDS
(Cal. Super. Ct., Kern Cty., April 27, 2022).
The case type is stated as "Other Employment - Civil Unlimited."
Golden Valley Security -- http://goldenvalleysecurity.com/-- is
one of the most respected security firms in Sacramento and Northern
California.[BN]
The Plaintiff is represented by:
Roman Otkupman, Esq.
OTKUPMAN LAW FIRM, ALC
28632 Roadside Dr, Ste 203
Agoura Hills, CA 91301-6015
Phone: (818) 293-5623
Fax: (888) 850-1310
Email: roman@OLFLA.com
HOLSTEN JEWELERS: Picon Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Holsten Jewelers Inc.
The case is styled as Yelitza Picon, on behalf of herself and all
other persons similarly situated v. Holsten Jewelers Inc., Case No.
1:22-cv-03437 (S.D.N.Y., April 27, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Holsten Jewelers -- https://holstenjewelers.com/ -- is a jewelry
store in Scarsdale, New York.[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
HYUNDAI MOTOR: Pluskowski Files Suit in C.D. California
-------------------------------------------------------
A class action lawsuit has been filed against Hyundai Motor
America, et al. The case is styled as Adam Pluskowski, Ricky
Barber, Lucille Jacob, Carla Ward, Pepper Miller, Cindy Brady, on
behalf of themselves and all others similarly situated v. Hyundai
Motor America, Hyundai Motor Company, Kia America, Inc., Kia
Corporation, Case No. 8:22-cv-00824-SB-JDE (C.D. Cal., April 15,
2022).
The nature of suit is stated as Motor Vehicle Product Liability.
Hyundai Motor America -- https://www.hyundaiusa.com/us/en -- is a
wholly owned subsidiary of Hyundai Motor Company.[BN]
The Plaintiffs are represented by:
David K. Stein, Esq.
Rosanne Leigh Mah, Esq.
Rosemary M Rivas, Esq.
GIBBS LAW GROUP LLP
505 14th Street Suite 1110
Oakland, CA 94612
Phone: (510) 350-9700
Fax: (510) 350-9701
Email: ds@classlawgroup.com
rlm@classlawgroup.com
rmr@classlawgroup.com
JOHN HANCOCK LIFE: Sued Over Extreme Invasion of Privacy
--------------------------------------------------------
Jane Doe 1 and Jane Doe 2, on behalf of themselves and others
similarly situated v. John Hancock Life Insurance Company (U.S.A.),
First Fitness Management, LLC, and Commonwealth Flats Development
Corp. d/b/a Second Wave Health & Fitness, Case No. 22-083LD (Mass.
Commonwealth Super. Ct., Suffolk Cty., April 15, 2022), is brought
arising out of an extreme and outrageous invasion of privacy
perpetrated by John Hancock Life Insurance Company, which allowed a
hidden camera to monitor female employees changing clothes in the
locker room of John Hancock's employee gym, and also arising from
John Hancock's subsequent and concerted efforts to silence
victims.
On June 6, 2019, the employees of John Hancock learned that one of
John Hancock's surveillance cameras had been positioned in a
ceiling light of the women's locker room of John Hancock's employee
gym in Boston. This surveillance camera was connected via coaxial
cable to a monitor (also owned by John Hancock) located in a
badged-access-only utility room in a different part of the
building. Only John Hancock's employees and agents had access to
this surveillance equipment, and only John Hancock's employees and
agents had access to the utility room where the monitor was
located.
This equipment allowed a John Hancock employee or agent to view the
Plaintiffs in a state of undress over a period of weeks, months, or
years, without the knowledge or consent of the Plaintiffs. It is
unknown whether images or recordings of the Plaintiffs in a state
of undress were made, saved, sold, or posted on the internet. For
years the Plaintiffs and John Hancock's other female employees
regularly used the gym as a benefit of being an employee of John
Hancock. The scale of the privacy violations against these women is
massive and difficult to quantify.
Once victims learned of the privacy violation, John Hancock
embarked on a scheme to dissuade victims from going public or
seeking out help. John Hancock did this to conceal its own
culpability, to protect its own reputation, and to deny victims of
closure and access to justice, says the complaint.
The Plaintiffs are prior or current female employees of John
Hancock who regularly used the John Hancock gym at issue in this
case to undress, shower, and change clothing.
John Hancock Life Insurance Company (U.S.A) is a Michigan
corporation, having a principal address in Boston,
Massachusetts.[BN]
The Plaintiffs are represented by:
Ryas J. Rona, Esq.
Michael J. Duran, Esq.
MILLIGAN RONA DURAN & KING LLC
50 Congress Street, Suite 600
Boston, MA 02109
Phone: (617) 395-9570
Fax: (855) 395-5525
Email: ijr@mrdklaw.com
mjd@mrdklaw.com
KADENCE HEALTHCARE: Rodriguez Files Suit in Cal. Super. Ct.
-----------------------------------------------------------
A class action lawsuit has been filed against RT Painting, Inc., et
al. The case is styled as Mario Rodriguez, and on behalf of other
members of the general public similarly situated and on behalf of
other aggrieved employees v. RT Painting, Inc., Does 1-10, Case No.
34-2022-00318410-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., April
15, 2022).
The case type is stated as "Other Employment - Civil Unlimited."
RT Painting Inc. -- https://www.rtpainting.com/ -- provides high
quality commercial painting services for new construction, tenant
improvements, and all property management/owners needs.[BN]
The Plaintiff is represented by:
Olivia Scharrer, Esq.
AEQUITAS LEGAL GROUP
1156 E Green St., Ste. 200
Pasadena, CA 91106
Phone: 213-674-6080
Fax: 213-674-6081
Email: oscharrer@aequitaslegalgroup.com
KEYPOINT GOVERNMENT: Appeals Decertification Bid Denial in Brayman
------------------------------------------------------------------
Keypoint Government Solutions, Inc. filed an appeal from a court
ruling entered in the lawsuit entitled RACHEL BRAYMAN, individually
and on behalf of all other similarly situated individuals, v.
KEYPOINT GOVERNMENT SOLUTIONS, INC., a Delaware corporation, Case
No. 1:18-cv-00550-WJM-NRN, in the United States District Court for
the District of Colorado-Denver.
As reported in the Class Action Reporter, the Plaintiff brings the
action against KeyPoint for alleged violations of the Fair Labor
Standards Act ("FLSA") and violations of California law. The
Plaintiff's FLSA and California law claims concern KeyPoint's
alleged failure to properly compensate a certain class of employees
known as "Investigators" for overtime hours worked, as well as
other employment and wage violations.
KeyPoint moved to compel arbitration of California state law claims
and strike related Rule 23 class action allegations.
On Feb. 4, 2021, KeyPoint's request that the Court compel the
California Plaintiffs to arbitrate their state law claims, strike
Plaintiffs' Rule 23 Class allegations as to the arbitration
agreement signatories, and stay the remaining proceedings pending
arbitration was denied.
KeyPoint also filed a motion for decertification. In its Motion for
Decertification, KeyPoint demonstrated that employees understood
nationwide that KeyPoint required them to record all time worked.
It argued that the Plaintiffs have not produced any evidence of an
unwritten KeyPoint policy preventing or even discouraging them from
reporting their hours accurately. KeyPoint also demonstrated that
Plaintiffs' disparate explanations for why they individually chose
to allegedly work off the clock preclude class treatment.
Similarly, the California class overtime claims should not be
certified under Rule 23, KeyPoint asserted.
On March 31, 2022, Judge William J. Martinez granted in part and
denied in part KeyPoint's Motion to Clarify the Court's Order
Denying its Motion to Compel Arbitration; denied KeyPoint's Amended
Motion for Decertification; granted Plaintiffs' Amended Motion for
Final Certification of the FLSA Collective; and granted Plaintiffs'
Amended Motion for Rule 23 Class Certification.
The Defendant is now seeking a review of Judge Martinez's order.
The appellate case is captioned as Brayman, et al. v. Keypoint
Government Solutions, Inc., Case No. 22-1118, in the United States
Court of Appeals for the Tenth Circuit, filed on April 15,
2022.[BN]
Defendant-Appellant KEYPOINT GOVERNMENT SOLUTIONS, INC., a Delaware
Corporation, is represented by:
Thomas W. Carroll, Esq.
Michelle L. Gomez, Esq.
Jennifer Harpole, Esq.
Margaret Parnell Hogan, Esq.
Danielle Van Katwyk, Esq.
LITTLER MENDELSON
1900 Sixteenth Street, Suite 800
Denver, CO 80202
Telephone: (303) 629-6200
- and -
Jacqueline Elise Kalk, Esq.
LITTLER MENDELSON
80 South Eighth Street
IDS Center, Suite 1300
Minneapolis, MN 55402
Telephone: (612) 630-1000
- and -
Steven Kaplan, Esq.
Brandon Mita, Esq.
LITTLER MENDELSON
1150 17th Street, NW, Suite 900
Washington, DC 20036
Telephone: (202) 842-3400
- and -
Matthew J. Ruza, Esq.
LITTLER MENDELSON
321 North Clark Street, Suite 1000
Chicago, IL 60654
Telephone: (312) 372-5520
Plaintiffs-Appellees RACHEL BRAYMAN, individually and on behalf of
all other similarly situated individuals; ADRIANA PONCE,
individually and on behalf of all other similarly situated
individuals; and DANA MCCARTHY, individually and on behalf of all
other similarly situated individuals, are represented by:
Caroline Elizabeth Bressman, Esq.
Helen Clara Coleman, Esq.
NICHOLS KASTER, PLLP-MINNEAPOLIS
80 South 8th Street IDS Center Suite 4600
Minneapolis, MN 55402-2242
Telephone: (612) 256-3264
- and -
Daniel Brome, Esq.
NICHOLS KASTER
235 Montgomery Street, Suite 810
San Francisco, CA 94104
Telephone: (415) 277-7235
- and -
Kelly Anne Burgy, Esq.
Benjamin L. Davis, III, Esq.
George Edward Swegman, Esq.
THE LAW OFFICES OF PETER T. NICHOLL
36 South Charles Street Suite 1700
Baltimore, MD 21201
Telephone: (410) 244-7005
LANDMARK REALTY: Cheatem Files Bid for Class Certification
----------------------------------------------------------
In the class action lawsuit captioned as RHONDA K. CHEATEM,
individually and on behalf of all others similarly situated, v.
LANDMARK REALTY OF MISSOURI, LLC, Case No. 4:20-cv-00958-BP (W.D.
Mo.), the Plaintiff asks the Court to enter an order:
1. granting the Plaintiff's motion for class certification;
2. appointing her as Class Representative and her counsel as
Class Counsel; and
3. granting the Plaintiff and the Class any other and further
relief this Court deems just and proper.
Ms. Cheatem hereby moves for certification under Counts I and,
alternatively,Count III of her amended complaint, as a class action
pursuant to Federal Rules of Civil Procedure 23 and 23(b)(3).
A copy of the Plaintiff's motion to certify class dated April 19,
2022 is available from PacerMonitor.com at https://bit.ly/3ypWbMD
at no extra charge.[CC]
The Plaintiff is represented by:
Matthew S. Robertson, Esq.
A.J. Stecklein, Esq.
Michael Rapp, Esq.
STECKLEIN & RAPP CHARTERED
748 Ann Avenue, Suite 101
Kansas City, KS 66101
Telephone: (913) 371-0727
Facsimile: (913) 371-0727
E-mail: aj@kcconsumerlawyer.com
2mr@kcconsumerlawyer.com
msr@kcconsumerlawyer.com
- and -
Gina Chiala, Esq.
Amy Sweeny Davis, Esq.
HEARTLAND CENTER
FOR JOBS AND FREEDOM, INC.
4047 Central Street
Kansas City, MO 64111
Telephone: (816) 278-1092
Facsimile: (816) 278-5785
E-mail: ginachiala@jobsandfreedom.org
amysweenydavis@jobsandfreedom.org
LIBERTY ENERGY: Faces Marshall Securities Suit in Colorado
----------------------------------------------------------
Liberty Energy Inc. disclosed in its Form 10 Report for the fiscal
year ended March 31, 2022, filed with the Securities and Exchange
Commission on April 21, 2022, that it is facing a securities class
action filed in March 11, 2020 by Marshall Cobb, on behalf of
himself and all other persons similarly situated, in the state
District Court of Denver County, Colorado against the company and
certain officers and board members of the company along with other
defendants in connection with its initial public offering (IPO).
Said lawsuit alleges that the company and certain officers and
board members of the company violated Section 11 of the Securities
Act of 1933 by virtue of inaccurate or misleading statements
allegedly contained in the registration statement filed in
connection with the IPO and requests unspecified damages and costs.
Plaintiffs also allege control person liability claims under
Section 15 of the Securities Act of 1933 against certain officers
and board members of the Company and other defendants.
Liberty Energy Inc., formerly known as Liberty Oilfield Services
Inc., is a multi-basin provider of hydraulic fracturing services
and goods, with a focus on deploying the latest technologies in the
technically demanding oil and gas reservoirs in which it operates,
principally in North Dakota, Colorado, Louisiana, Oklahoma, New
Mexico, Wyoming, Texas and the provinces of Alberta and British
Columbia, Canada.
LIBERTY ENERGY: Settlement in Principle Entered in Joseph Suit
--------------------------------------------------------------
Liberty Energy Inc. disclosed in its Form 10 Report for the fiscal
year ended March 31, 2022, filed with the Securities and Exchange
Commission on April 21, 2022, that in the first quarter of 2022,
the company entered into a settlement in principle with the
plaintiffs in class action lawsuit filed by a certain Marc Joseph
Lawsuit to fully resolve all the plaintiffs' claims on a class-wide
basis.
On April 3, 2020, Marc Joseph, on behalf of himself and all other
persons similarly situated, filed a putative class action lawsuit
in the United States District Court in Denver, Colorado against the
company and certain officers and board members of the company along
with other defendants in connection with its initial public
offering IPO and requests unspecified damages and costs. Said
lawsuit alleges that the defendants violated Sections 11 and
12(a)(2) of the Securities Act of 1933 by virtue of inaccurate or
misleading statements allegedly contained in the registration
statement and prospectus filed in connection with the IPO. It also
alleges control person liability claims under Section 15 of the
Securities Act of 1933 against certain officers and board members
of the Company and other defendants.
Liberty Energy Inc., formerly known as Liberty Oilfield Services
Inc., is a multi-basin provider of hydraulic fracturing services
and goods, with a focus on deploying the latest technologies in the
technically demanding oil and gas reservoirs in which it operates,
principally in North Dakota, Colorado, Louisiana, Oklahoma, New
Mexico, Wyoming, Texas and the provinces of Alberta and British
Columbia, Canada.
LIFEVANTAGE CORP: Smith Loses Class Status Bid w/o Prejudice
------------------------------------------------------------
In the class action lawsuit captioned as BRIAN SMITH and MICHAEL
ILARDO, individually and on behalf of a class of similarly situated
individuals, v. LIFEVANTAGE CORPORATION, a Delaware Corporation,
and DARREN JENSEN, an individual, Case No. 2:18-cv-00621-DBB-JCB
(D. Utah), the Hon. Judge David Barlow entered an order denying
without prejudice bid for class certification of:
"individuals who lost money participating in Defendant
LifeVantage Corporation's distributorship program."
LifeVantage is a multinational corporation based in Utah that
develops and sells wellness supplements and personal care products.
Since 2009, its business model has been based on multi-level
marketing (MLM), meaning that its products are sold primarily
through a hierarchical "network of independent distributors." Under
LifeVantage's model, recruiting and educating new distributors is
left primarily to already existing distributors. When a distributor
recruits a new distributor, the recruited distributor becomes part
of the recruiter's "downline" and the recruiter is in the recruited
distributor's "upline." As this process repeats with each new
generation of distributors, multiple levels of distributors are
created, hence the name "multi-level marketing," the lawsuit says.
LifeVantage presents its distributorship program as a "business
opportunity" through which individuals can earn commissions and
other financial rewards by buying and selling products and
recruiting new distributors. To become a distributor, individuals
must be sponsored by another distributor, submit an application,
agree to LifeVantage's Distributor Agreement, and purchase an
"Enrollment Pack." New distributors are required to purchase at
least a $50 "Start Kit," though they are strongly encouraged to
purchase much more expensive enrollment packs that include extra
marketing materials and samples of LifeVantage products, the
lawsuit adds.
LifeVantage is a pioneer in Nutrigenomics - a new science dedicated
to cracking the human aging code.
A copy of the Plaintiffs' motion to certify class dated April 19,
2022 is available from PacerMonitor.com at https://bit.ly/3LCBh0g
at no extra charge.[CC]
LORILIL JEWELERS: Picon Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Lorilil Jewelers,
Inc. The case is styled as Yelitza Picon, on behalf of herself and
all other persons similarly situated v. Lorilil Jewelers, Inc.,
Case No. 1:22-cv-03438 (S.D.N.Y., April 27, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Lorilil Jewelers -- https://www.lorililjewelers.com/ -- is a
full-service jewelry and watch store specializing in both classic
and modern jewelry and watches for everyone's discerning
tastes.[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
M&T BANK: Court Sets Class Cert Briefing Schedule in Jaroslawicz
----------------------------------------------------------------
In the class action lawsuit captioned as Jaroslawicz v. M&T Bank
Corporation, et al., Case No. 1:15-cv-00897 (D. Del.), the Hon.
Judge Evan J. Wallach entered an order setting briefing schedule as
follows:
-- The Defendants' Response to June 8, 2022
Plaintiffs' Motion for Class
Certification is expanded to
30 pages, and is due:
-- The Plaintiffs' Reply is due: July 8, 2022
-- The Defendants' Rebuttal June 8, 2022
Expert Reports in connection
with Class Certification
are due:
-- The Plaintiffs' Reply Expert July 8, 2022
Reports in connection with
Class Certification are due:
The suit alleges violation of the Securities Exchange Act.
M&T Bank Corporation is an American bank holding company
headquartered in Buffalo, New York. It operates 780 branches in New
York, New Jersey, Pennsylvania, Maryland, Delaware, Virginia, West
Virginia, Washington, D.C., and Connecticut.[CC]
M.A.C. COSMETICS: Maciel Files Suit in Cal. Super. Ct.
------------------------------------------------------
A class action lawsuit has been filed against M.A.C. Cosmetics
Inc., et al. The case is styled as Ignacio Maciel, Ruth Torres, on
behalf of herself and all other persons similarly situated v.
M.A.C. Cosmetics Inc., Does 1-50, Inclusive, Case No. CGC22599387
(Cal. Super. Ct., San Francisco Cty., April 27, 2022).
The case type of suit is stated as "Other Non-Exempt Complaints."
MAC Cosmetics, stylized as M.A.C. -- https://www.maccosmetics.com/
-- is an American cosmetics manufacturer founded in Toronto in 1984
by Frank Toskan and Frank Angelo.[BN]
The Plaintiff is represented by:
Reuben David Nathan, Esq.
NATHAN & ASSOCIATES, APC
2901 W Coast Hwy. Ste. 200
Newport Beach, CA 92663-4045
Phone: 949-270-2798
Email: rnathan@nathanlawpractice.com
- and -
Matthew Righetti, Esq.
RIGHETTI GLUGOSKI
220 Halleck St., Ste. 220
San Francisco, CA 94129-1728
Phone: 415-264-9990
Fax: 415-923-9292
Email: matt@righettilaw.com
NEW JERSEY: District Court Narrows Claims in Salvato v. Harris
--------------------------------------------------------------
In the case, LISA SALVATO, on behalf of herself and other persons
similarly situated, Plaintiff v. STEVEN HARRIS, in his official
capacity as the Administrator of the State of New Jersey,
Defendant, Civil Action No. 21-12706 (FLW) (D.N.J.), Judge Freda L.
Wolfson of the U.S. District Court for the District of New Jersey
granted in part and denied in part Harris' motion to dismiss.
I. Background
Plaintiff Salvato brought the putative class action against
Defendant Harris, in his official capacity as the New Jersey
Unclaimed Property Administrator, challenging the Defendant's
actions in connection with the escheatment and sale of stock owned
by the Plaintiff under the New Jersey Uniform Disposition of
Unclaimed Property Act, N.J.S.A. Section 46:30B-1, et seq. (the
"Act" or "UPA").
The Plaintiff alleges that on Dec. 28, 2001, she and her mother,
Viola Salvato, purchased 200 shares of Boston Life Sciences, Inc.
("BLSI") stock. Later, BLSI exchanged its shares, five old shares
for one new share, reducing the Plaintiff's shares to 40, and also
changed its name to Alseres Pharmaceuticals, Inc. According to the
Plaintiff, her mother died on or about July 10, 2002, at which time
Salvato processed the paperwork necessary to transfer the Alseres
stock solely into her name.
In 2010, however, despite this purported transfer of the stock,
Alseres submitted an unclaimed property report to the State, which
included the forty shares of stock held by the Plaintiff and Viola
Salvato as joint tenants. According tothe Plaintiff, she did not
have knowledge of this report Rather, nine years later, in
September 2019, the Plaintiff alleges that she received a call from
the Defendant's office asking to speak with her deceased mother
regarding the Alseres stock, which it valued at $3 per share.
According to the Plaintiff, she discovered, for the first time,
that the Defendant had seized the stockholdings in or about 2010,
before purportedly selling the stock on Feb. 8, 2013, "on a day
when the value fluctuated between $300 to $500 per share so New
Jersey Unclaimed Property received a high of $20,000 or a low of
$12,000."
On June 17, 2021, the Plaintiff filed a class action complaint for
declaratory and injunctive relief2 against Kevin D. Walsh, the
State Comptroller, asserting two causes of action: (1) violation of
Plaintiff's Fourteenth Amendment due process rights under 42 U.S.C.
Section 1983 and (2) violation of the Takings Clause of the Fifth
Amendment under 42 U.S.C. Section 1983.
Although certain portions of the Complaint could be construed as
challenging the constitutionality of the Act itself, the balance of
the allegations suggest that the Plaintiff is solely challenging
Defendant's actions, in his official capacity as the Unclaimed
Property Administrator, as ultra vires. In that regard, the
Complaint alleges that "the Administrator, under the color of law
as provided by the Act, has violated (and continues to violate)"
the Plaintiff's right to due process and the Plaintiff's property
rights under the Fifth Amendment. More particularly, the Plaintiff
alleges that the Defendant seized her property without providing
adequate notice and without providing just compensation
Presently before the Court is a motion to dismiss filed by the
Defendant, arguing that the Eleventh Amendment of the U.S.
Constitution bars the Plaintiff's claims for damages and injunctive
relief, the Plaintiff lacks standing, the Burford abstention
doctrine requires that this Court defer to the state administrative
process, and the Plaintiff fails to state a claim pursuant to Fed.
R. Civ. P. 12(b)(6).
II. Discussion
On this motion, the Defendant raises four arguments for dismissal:
(1) the Eleventh Amendment of the U.S. Constitution bars relief and
the State of New Jersey, including its officers, is not subject to
claims under 42 U.S.C. Section 1983; (2) the Plaintiff has no
concrete injury, and therefore, she lacks standing; (3) the Burford
abstention doctrine applies because the New Jersey statute provides
both a clear administrative and state court path to review
Salvato's unclaimed property claim; and (4) the Plaintiff fails to
state a claim pursuant to Fed. R. Civ. P. 12(b)(6).
Judge Wolfson addresses the Defendant's procedural arguments first,
before determining whether the Plaintiff states a claim for
relief.
A. Eleventh Amendment Immunity, Standing, and the Burford
Abstention Doctrine
Judge Wolfson finds that the Defendant cites only one case from the
unique universe of unclaimed property law to support its Eleventh
Amendment position. And, although Defendant is correct that the
court in Arnett v. Strayhorn, 515 F.Supp.2d 690, 695 (W.D. Tex.
2006), ultimately found that the defendant was entitled to the
protection of the Eleventh Amendment, Defendant overlooks its
reasoning.
In Strayhorn, the plaintiff, in his capacity as administrator for
an estate, requested the return of $51,550, plus the interest
thereon. The property had been held in trust by the State of Texas,
resulting from previously unclaimed 50,000 shares of stock.
Although the State of Texas returned the $51,550, the plaintiff
never received the interest that had accrued. The district court
acknowledged the Ninth Circuit's decision in Taylor, but it
distinguished Texas's unclaimed property law from its counterpart
in California. The Arnett court explained that while California's
Unclaimed Property Law signals, by using "traditional trust
language," that the Controller holds property he or she takes as
unclaimed in "trust" for the rightful owner, "the Texas statute
directs the Comptroller to deposit unclaimed property in the
State's general revenue fund, not in a separate trust fund for
owners." In fact, the Texas statute makes clear that the escheated
property is held in trust for the benefit of the State, not for the
benefit of the owner.
As described, that is simply not the case with New Jersey's UPA.
Accordingly, Judge Wolfson finds that the Eleventh Amendment does
not bar the Plaintiff's claims for return of her own property under
the UPA, because such claims are not for "damages" against the
State. And because the Plaintiff is challenging the Defendant's
actions in connection with the UPA, not the UPA itself, the Burford
abstention doctrine is inapplicable.
B. Failure to State a Claim
Finding the Defendant's procedural and jurisdictional arguments
unpersuasive, Judge Wolfson turns to the Defendant's argument that
dismissal is nonetheless appropriate under Fed. R. Civ. P. 12(b)(6)
because the Plaintiff fails to state a due process or takings
claim.
First, Judge Wolfson opines that the Plaintiff's due process
challenge is not a pure question of law, but rather depends on a
determination of facts not yet developed. Because this factual
issue, however, is a seminal issue in the case, and it can be
resolved in relatively short order, the parties are directed to
conduct expedited discovery within thirty days as it relates to the
value of the Plaintiff's property at the time of escheatment, the
date of sale of the property, and the total sale price. If the
facts demonstrate a minimal value of the property, i.e., less than
$100 as set forth in the statute, the Defendant may move for
summary judgment on this issue. Hence, the Defendant's motion to
dismiss the Plaintiff's Fourteenth Amendment due process claim is
denied.
Second, Judge Wolfson finds that the Complaint includes no
allegations regarding the UPA claim process. Indeed, the Plaintiff
does not allege what steps she took, if any, following her
realization that her shares of Alseres stock had purportedly been
escheated and sold. Instead, the Complaint merely alleges that the
Plaintiff was "subsequently unsuccessful in seeking return of her
property pursuant to the postdeprivation procedures." She does not,
however, allege that she ever filed a claim for the return of her
property, let alone that her petition was actually received by the
Defendant, considered, denied, and that she exhausted her appellate
rights in the Appellate Division of the Superior Court of New
Jersey.
Accordingly, since the Plaintiff does not allege that she has
exhausted state just compensation procedures, she cannot show a
denial of just compensation, and therefore, her taking claim is not
ripe for federal adjudication. Failure to meet the exhaustion prong
precludes the finality prong of the Takings Clause.
III. Conclusion
For the reasons she set forth, Judge Wolfson granted in part and
denied in part the Defendant's motion to dismiss. The Plaintiff's
claim for violation of the Takings Clause of the Fifth Amendment
under 42 U.S.C. Section 1983 is dismissed without prejudice because
the Complaint fails to allege exhaustion of the UPA's claim
procedure. The Plaintiff is given leave to amend her Complaint
within 30 days of the Order accompanying the Opinion, so long as
she can allege that she has exhausted all state just compensation
procedures under the UPA. The Defendant's motion to dismiss the
Plaintiff's claim for violation of her Fourteenth Amendment due
process rights under 42 U.S.C. Section 1983 is denied; however, the
parties are directed to conduct expedited discovery within 30 days
as it relates to the value of the Plaintiff's property at the time
of escheatment, the date of sale of the property, and the total
sale price.
A full-text copy of the Court's April 26, 2022 Opinion is available
at https://tinyurl.com/4b66xn6u from Leagle.com.
NEXA MORTGAGE: Januszewski Suit Removed to S.D. Florida
-------------------------------------------------------
The case styled as Gail Januszewski, individually, and on behalf of
all others similarly situated v. Nexa Mortgage, LLC, Case No.
502022CA002833XXXXMB was removed from the 15th Judicial Circuit, to
the U.S. District Court for the Southern District of Florida on
April 27, 2022.
The District Court Clerk assigned Case No. 9:22-cv-80656 to the
proceeding.
The nature of suit is stated as Consumer Credit.
Nexa Mortgage -- https://nexamortgage.com/ -- is a full-service
mortgage company headquartered in Chandler, Arizona.[BN]
The Plaintiff is represented by:
Jibrael Jarallah Said Hindi, Esq.
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: jibrael@jibraellaw.com
tom@jibraellaw.com
The Defendant is represented by:
Aron Uri Raskas, Esq.
GUNSTER, YOAKLEY , STEWART, P.A.
600 Brickell Avenue, Suite 3500
Miami, FL 33131
Phone: (305) 376-6000
Fax: (305) 376-6010
Email: araskas@rwllaw.com
- and -
Traci Hope Rollins, Esq.
GUNSTER
500 Phillips Point East
777 S Flagler Drive
West Palm Beach, FL 33401-6198
Phone: (561) 650-0510
Email: trollins@gunster.com
NORTH CAROLINA: Award of Attys.' Fees in Grabarczyk Suit Affirmed
-----------------------------------------------------------------
In the case, KENNETH GRABARCZYK, Plaintiff-Appellee v. JOSHUA
STEIN, Attorney General of the State of North Carolina in his
official capacity; BOB SCHURMEIER, Director of the North Carolina
State Bureau of Investigation in his official capacity; and SEAN
BOONE, District Attorney of Alamance County, North Carolina in his
official capacity, Defendants-Appellants, Case No. 21-1209 (4th
Cir.), the U.S. Court of Appeals for the Fourth Circuit affirmed
the district court's attorney's fees award to the Plaintiff.
I. Introduction
At issue in the appeal is an award of attorney's fees to Plaintiff
Grabarczyk. Grabarczyk prevailed before the district court on his
Section 1983 claim that North Carolina's sex-offender registration
system deprived him of procedural due process. That judgment,
however, was vacated and his case dismissed as moot after the
legislature, because of the district court's ruling, amended its
statute to provide procedural protections to offenders like
Grabarczyk.
When Grabarczyk sought attorney's fees pursuant to 42 U.S.C.
Section 1988, the Defendant state officials objected, arguing that
Grabarczyk could not be a "prevailing party" under Section 1988
because the judgment in his favor had been vacated. The district
court took a different view: Because the legislative change mooting
his case came both after and in response to an award of judicial
relief, the court held, Grabarczyk remained a prevailing party
entitled to attorney's fees.
II. Background
Mr. Grabarczyk is a resident of North Carolina who was required to
register on the North Carolina sex-offender registry because he was
convicted in Wisconsin of a qualifying sex crime. In February 2019,
he filed a putative class action under 42 U.S.C. Section 1983 in
the Eastern District of North Carolina, challenging the
constitutionality of the State's registration scheme.
State law mandated registration for individuals convicted of an
out-of-state offense "substantially similar" to a North Carolina
offense requiring registration, see N.C. Gen. Stat. Section
14-208.6(4)(b) (2005), with what counts as "substantially similar"
determined by local officials on an ad hoc basis. Because the
system provided neither an opportunity to be heard prior to such
decisions nor any form of post-decision review, Grabarczyk argued,
it violated the procedural due process rights of class members, all
of whom were forced to register solely on the basis of these
unilateral determinations. He named as defendants, in their
official capacities, the Attorney General of North Carolina, the
Director of the State Bureau of Investigation, and the District
Attorney for his county.
After certifying the class, the district court awarded summary
judgment to Grabarczyk and ordered all the declaratory and
injunctive relief he sought. Specifically, the court declared that
North Carolina had violated class members' Fourteenth Amendment due
process rights, ordered that class members be removed from the
state registry, and enjoined the Defendants from prosecuting class
members for offenses applicable only to registered sex offenders.
The Defendants filed a notice of appeal on June 9, 2020.
A few weeks later, while the appeal was pending, the North Carolina
General Assembly responded to the district court's decision with an
amendment providing for judicial review of "substantially similar"
determinations. By express reference to this lawsuit, the
legislation also established a special procedure for review of the
Grabarczyk class members' prior substantial similarity
determinations.
After the new law became effective, the Defendants moved the Fourth
Circuit to vacate the district court's summary judgment order and
remand the case to the district court. The Fourth Circuit granted
the motion, vacating the district court's order and remanding for
further proceedings as deemed necessary by that court.
On remand, the district court first addressed Grabarczyk's
continued challenge to North Carolina's registration scheme, which
in Grabarczyk's view still failed to provide adequate process. That
"residual claim," the district court concluded, was properly raised
not through an amended complaint but in a new action. Accordingly,
the district court dismissed the original case as moot, specifying
that its dismissal was without prejudice to a new lawsuit by
Grabarczyk.
At that point, with the status of his case fully resolved,
Grabarczyk filed the motion giving rise to this appeal: A request
for attorney's fees under 42 U.S.C. Section 1988, which permits fee
awards to a "prevailing party" in a Section 1983 action. The state
Defendants disagreed, arguing that a vacated judgment, no longer
enforceable, cannot make a plaintiff a "prevailing party" under
Section 1988.
The district court agreed with Grabarczyk and granted his motion
for attorney's fees. As the court explained, "the prevailing party
is the party to whom some relief has been awarded by the court." In
the case, the court found, it was clear that the legislature
"amended the law in question only after the court determined that
it was unconstitutional" and because of that holding. The court
then went on to calculate a fee award. Based on the "lodestar"
method, the court awarded a total of $60,381.15 in attorney's fees
and costs, all for work performed before the entry of summary
judgment.
The Defendants asked the court to reduce the award by 80% on the
theory that Grabarczyk had been mostly unsuccessful because his
case was dismissed as moot and he believed the amended law remained
constitutionally insufficient. The district court rejected that
request, explaining that Grabarczyk was "fully successful" in the
district court and that the legislature's decision to amend the
challenged statute after the court's judgment did not negate his
success.
The Defendants timely appealed the district court's award of
attorney's fees.
III. Discussion
A.
The Fourth Circuit first considers whether Grabarczyk is a
"prevailing party" under 42 U.S.C. Section 1988. That statute
provides that in an action to enforce Section 1983 or other
specified civil rights laws, "the court, in its discretion, may
allow the prevailing party, other than the United States, a
reasonable attorney's fee as part of the costs." The Fourth Circuit
interprets the term "prevailing party" consistently across all
federal fee-shifting statutes. And in all those contexts, a
plaintiff who has obtained a favorable judgment on the merits is
the classic example of a prevailing party.
Mr. Grabarczyk won a final judgment on the merits in the district
court. He also obtained substantial judicial relief on his claim,
including entry of a final injunction requiring that class members
be removed from the registry and prohibiting their prosecution for
offenses relating only to registered sex offenders.
The Fourth Circuit opines that Grabarczyk remains a prevailing
party entitled to attorney's fees in connection with his successful
district court litigation because the legislature amended the
challenged law -- and thereby mooted his case — only after he won
a final judgment on the merits and because of that judgment. As the
district court explained, id., that holding is consistent with the
Seventh Circuit's decision in Palmetto Properties, which likewise
affirmed a fee award where the defendant county repealed the
challenged ordinance and thus mooted the case "only after" the
district court determined it was unconstitutional "and presumably
because of" that determination.
The Fourth Circuit's holding also is consistent with cases in
several other circuits, which likewise approve fee awards when a
district court judgment is vacated because a legislative change
moots the case on appeal. It has no need in the case to opine on
that broader rationale, which would not require the kind of
"causation" found and relied on by the district court. Instead, the
Fourth Circuit holds only that when a plaintiff wins judicial
relief on the merits in the district court, and that ruling causes
a state legislature to remedy the violation of federal law
identified by the district court, the plaintiff who proved that
violation is a prevailing party under Section 1988.
B.
The Fourth Circuit dispenses more briefly with the Defendants'
alternative argument: That even if Grabarczyk is entitled to fees,
his fee award of $60,381.15 was excessive. The Defendants do not
dispute the district court's calculation of hours worked or an
appropriate hourly rate. Instead, to the extent they argue this
point -- which is all but abandoned in their reply brief -- they
contend only that the award is excessive because Grabarczyk failed
to obtain meaningful relief, mostly on the ground that he continues
to find constitutional fault with the State's sex-offender
registration system.
As the Defendants concede, however, a plaintiff's degree of success
is determined by comparing the "scope of the injunctive relief
sought to the relief actually granted." And by that metric, as the
district court concluded, Grabarczyk was "fully successful,"
receiving all the injunctive relief he requested. Nor, as the
district court explained, is it relevant at this point in the
analysis that the judgment was vacated on appeal; so long as
Grabarczyk is a prevailing party, "that the state legislature
elected to amend the challenged statute" takes nothing away from
his success. The Fourth Circuit finds no abuse of discretion in the
district court's calculation of the fee award.
IV. Conclusion
For the reasons given, the judgment of the district court is
affirmed.
A full-text copy of the Court's April 26, 2022 Opinion is available
at https://tinyurl.com/2u6dfbv2 from Leagle.com.
ARGUED: Joseph Finarelli, NORTH CAROLINA DEPARTMENT OF JUSTICE, in
Raleigh, North Carolina, for the Appellants.
Paul Moore Dubbeling, P.M. DUBBELING, PLLC, in Chapel Hill, North
Carolina, for the Appellee.
ON BRIEF: Joshua H. Stein, Attorney General, Tamika L. Henderson,
Special Deputy Attorney General, Bryan G. Nichols, Assistant
Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, in Raleigh,
North Carolina, for the Appellants.
OREGON: Appeals Class Certification Ruling in Maney Suit
--------------------------------------------------------
STATE OF OREGON, et al., filed an appeal from a court ruling
entered in the lawsuit entitled PAUL MANEY; GARY CLIFT; GEORGE
NULPH; THERON HALL; DAVID HART; SHERYL LYNN SUBLET, and FELISHIA
RAMIREZ, a personal representative for the ESTATE OF JUAN TRISTAN,
individually, on behalf of a class of others similarly situated,
Plaintiffs v. STATE OF OREGON; KATE BROWN; COLETTE PETERS; HEIDI
STEWARD; MIKE GOWER; MARK NOOTH; ROB PERSSON; KEN JESKE; PATRICK
ALLEN; and GARRY RUSSELL, Defendants, Case No. 6:20-cv-00570-SB, in
the U.S. District Court for the District of Oregon, Eugene.
As reported in the Class Action Reporter, the lawsuit is a class
action against the Defendants for violation of the Constitutions of
the U.S. and Oregon.
According to the complaint, the Defendants failed to implement
critical measures to prevent outbreaks of the Novel Coronavirus or
COVID-19 at the Oregon Department of Corrections facilities and
also failed to create a health care system that can provide the
Plaintiffs and all others similarly-situated prisoners access to
prevention, testing and treatment for COVID-19.
On April 1, 2022, the Court found that Plaintiffs satisfy the
requirements of FED. R. CIV. P. 23(a) and FED. R. CIV. P. 23(b)(3),
and therefore granted Plaintiffs' motion to certify the proposed
classes.
The Defendants are challenging the class certification ruling.
The appellate case is captioned as Paul Maney, et al. v. State of
Oregon, et al., Case No. 22-80033, in the United States Court of
Appeals for the Ninth Circuit, filed on April 15, 2022.[BN]
Defendants-Petitioners STATE OF OREGON, KATE BROWN, COLETTE PETERS,
HEIDI STEWARD, MIKE GOWER, MARK NOOTH, ROB PERSSON, KEN JESKE, JOE
BUGHER, GARRY RUSSELL, PATRICK ALLEN, are represented by:
Robert A. Koch, Esq.
OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
Telephone: (503) 378-4402
- and -
Nicole Abercrombie, Esq.
Jonathan Wells Monson, Esq.
CABLE HUSTON, LLP
1455 SW Broadway, Suite 1500
Portland, OR 97201
Telephone: (503) 224-3092
Plaintiffs-Respondents PAUL JULIAN MANEY, GARY CLIFT, GEORGE W.
NULPH, THERON D. HALL, DAVID HART, SHERYL LYNN SUBLET, and FELISHIA
RAMIREZ, personal representative for the Estate of Juan Tristan,
individually, on behalf of a class of other similarly situated, are
represented by:
Juan Chavez, Esq.
JUAN CHAVEZ
P.O. Box 5248
Portland, OR 97208
Telephone: (503) 563-3357
- and -
Nadia H. Dahab, Esq.
SUGERMAN DAHAB
707 SW Washington Street, Suite 600
Portland, OR 97205
Telephone: (503) 228-6474
- and -
Alexander Meggitt, Esq.
P.O. Box 5248
Portland, OR 97208
Telephone: (503) 944-2270
- and -
David F. Sugerman, Esq.
DAVID F. SUGERMAN ATTORNEY, PC
520 SW Sixth Ave.
Portland, OR 97204
Telephone: (503) 228-6474
PINDUODUO INC: Pending Shareholder Suits Dismissed
--------------------------------------------------
Pinduoduo Inc. disclosed in its Form 20-F Report for the fiscal
year ended December 31, 2021, filed with the Securities and
Exchange Commission on April 25, 2022, that in February 2021, the
Superior Court of the State of California dismissed all claims
against the company for lack of personal jurisdiction in several
class actions, and the time period for plaintiffs to appeal the
dismissal has expired. In August 2021, the United States Court of
Appeals for the Second Circuit affirmed the district court's
dismissal of the federal action pending in New York.
Between August and December 2018, several putative shareholder
class action lawsuits were filed against the company and certain of
its officers and directors in the U.S. District Court for the
Southern District of New York and the Superior Court of the State
of California. The plaintiffs in these cases alleged, in sum and
substance, that certain disclosure and statements made by the
company in connection with the initial public offering contained
material misstatements and omissions in violation of the federal
securities laws.
In March 2020, the court granted its motion to dismiss the claims
in the consolidated action in the New York court. In August 2021,
the United States Court of Appeals for the Second Circuit affirmed
the district court's dismissal of the federal action, and the
matter is now closed. The consolidated action in the Superior Court
of the State of California was stayed in June 2019 at the company's
request while the New York action was pending. In October 2020, the
stay was lifted. In February 2021, the Superior Court of the State
of California dismissed all claims.
Pinduoduo is mobile platform provides buyers with a comprehensive
selection of value-for-money merchandise and fun and interactive
shopping experiences by pioneering an innovative "team purchase"
model on our platform.
PINNACLE AGRICULTURE: Judgment on Pleadings in Coronel Suit Upheld
------------------------------------------------------------------
In the case, JUVENAL CORONEL, Plaintiff and Appellant v. PINNACLE
AGRICULTURE DISTRIBUTION, INC., Defendant and Respondent, Case No.
G060945 (Cal. App.), the Court of Appeals of California for the
Fourth District, Division Three, affirmed the trial court's order
granting the Defendant's motion for judgment on the pleadings.
I. Introduction
Plaintiff Coronel filed the lawsuit against his former employer,
Defendant Pinnacle. He alleged representative claims under the
Private Attorneys General Act (PAGA; Lab. Code, Section 2698 et
seq.) and class claims based on various wage and hour violations. A
few months after he filed his lawsuit, the Defendant settled a
similar class action and PAGA lawsuit filed by nonparty Damian
Reyes (the Reyes action). This settlement was approved and judgment
was entered in the Reyes action. The Defendant then filed a motion
for judgment on the pleadings in the present action, arguing the
Plaintiff's claims were barred by the settlement in the Reyes
action.
The trial court agreed, granted the motion, and entered judgment in
favor of the Defendant. The Plaintiff now appeals.
II. Background
The case is a class action and PAGA lawsuit. Plaintiff initially
filed suit against the Defendant in November 2018, then filed the
operative first amended complaint (FAC) in May 2019. The FAC
alleged claims for (1) failure to provide proper meal breaks
(Sections 226.7, 512), (2) failure to provide proper rest breaks
(Section 226.7), (3) failure to pay minimum wage (Sections 1194,
1197, 1197.1), (4) failure to pay accrued vacation time upon
separation (Section 227.3), (5) failure to provide proper wage
statements (Section 226, subd. (a)), (6) violations of Business and
Professions Code section 17200 (UCL), and (7) PAGA penalties for
all aggrieved employees based on the aforementioned alleged Labor
Code violations.
The alleged class included "all current and former non-exempt
employees who worked for the Defendant in the State of California
at any time from November 8, 2014, through the present."
At issue in this appeal are the third, fourth, and seventh causes
of action. The third cause of action was based on the Defendant's
alleged failure "to pay for time spent by employees undergoing
mandatory drug testing." The Plaintiff sought recovery of these
unpaid wages under sections 1194 and 1197. He also alleged that
defendant had failed to pay these unpaid wages to employees at
separation, as required under sections 201 and 202, and sought
penalties under section 203.
The fourth cause of action was based on allegations that the
"Defendant did not pay all vested vacation wages to employees upon
termination. Specifically, employees forfeited accrued vacation
time and paid time off." As with the third cause of action, the
Plaintiff also sought penalties under section 203 based on
defendant's alleged failure to pay these unpaid wages upon employee
separation.
As to the PAGA claim, two portions are relevant. First, there was a
derivative portion seeking PAGA penalties based on the Labor Code
violations alleged in the third and fourth causes of action.
Second, the Plaintiff also sought PAGA penalties based on
defendant's alleged failure to keep accurate time records in
violation of section 1174 subdivision (d), and Industrial Welfare
Commission's (IWC) wage order 14-2001, section 7.
Once the judgment in the Reyes action became final, the Defendant
renewed its motion for judgment on the pleadings as to the
remaining claims. Following oral argument, the court took the
matter under submission then issued a written order granting the
motion. The order does not explain the basis of the ruling, but
given the court's statements at oral argument, it appears to be
based on claim preclusion. Since the renewed motion completely
disposed of the Plaintiff's claims, the trial court entered
judgment against him in May 2020.
The Plaintiff now appeals, arguing the court incorrectly granted
the renewed motion as to the third and fourth causes of action and
a portion of his PAGA claim. He maintains these claims were based
on unique allegations that were not and could not be released by
the Reyes settlement. These specific allegations include
defendant's failure to (1) compensate employees for time spent
undergoing mandatory drug testing (third cause of action and
derivative portion of PAGA claim); (2) pay employees for accrued
but unused vacation time (fourth cause of action and derivative
portion of PAGA claim); and (3) maintain accurate time records for
meal breaks (standalone portion of PAGA claim).
III. Discussion
Before it begins its analysis, the Court of Appeals notes that the
Plaintiff filed a request for judicial notice of the written notice
he gave the California Labor and Workforce Development Agency
(LWDA) of his PAGA claims. This PAGA notice is immaterial to its
analysis, so the Court of Appeals denies the Plaintiff's request
for judicial notice.
A. The Third and Fourth Causes of Action and Derivative PAGA
Claims
The Court of Appeals opines that the third and fourth causes of
action and their derivative PAGA claims involve the same primary
rights as the claims asserted in the Reyes action and are barred by
claim preclusion. Though Reyes' PAGA claim did not seek penalties
for the specific Labor Code sections at issue in the present case
(Sections 227.3, 1194, 1197, 1197.1), this is immaterial. Claim
preclusion requires that the Court of Appeals looks at the injury
underlying the claims, not the remedy sought. At their core, the
relevant claims in both actions sought penalties on behalf of the
LWDA for defendant's failure to pay wages owed. They involve the
same injury but seek PAGA penalties under different Labor Code
sections. This is insufficient to avoid preclusion. Thus, the
Plaintiff's PAGA claims based on unpaid vacation and uncompensated
drug testing are precluded.
B. The Remaining PAGA Claim
Next, the Court of Appeals addresses the portion of the Plaintiff's
PAGA claim based on the Defendant's alleged failure to keep
accurate records of meal breaks. This claim is based on the
Plaintiff's assertion that the Defendant "failed to maintain
records of when employees clocked in and out for meal periods" in
violation of section 1174, subdivision (d) and IWC's wage order
14-2001, section 7 (Cal. Code Regs., tit. 8, Section 11140, subd.
(7)(A)(3)).
The Court of Appeals opines that the harm associated with the
Defendant's failure to accurately record meal periods was that
employees were given noncompliant meal periods and deprived of
premium pay under section 226.7. The Plaintiff's PAGA claim sought
to vindicate that harm on behalf of the public. But the Reyes
action already brought a PAGA claim based on this injury. It
expressly sought PAGA penalties based on the Defendant's failure to
provide proper meal breaks and premium pay.
Further, the Reyes action also sought PAGA penalties for the
Defendant's failure to provide accurate wage statements under
section 226. Among other things, the Defendant's wage statements
allegedly failed to reflect premium pay for noncompliant meal
breaks. Section 226 imposes a similar record-based duty on
employers. It "obliges employers to provide their employees with
records of their earnings and deductions, and imposes penalties
upon employers who knowingly and intentionally fail to supply the
records." Like the duty to maintain accurate records at issue in
the present case, the duty to provide accurate wage statements is
also "intended to ensure workers are correctly and adequately
compensated for their work."
Thus, to the extent there is a unique harm attached to the
violation of these record-based duties that is separate from the
harm caused by inadequate compensation, it was already addressed by
Reyes' wage-statement PAGA claim.
C. Remaining Arguments
The Court of Appeals is not persuaded by any of the Plaintiff's
remaining arguments. First, the Plaintiff contends that even if the
elements of claim preclusion were met, the trial court should have
exercised its discretion not to apply it. But the Plaintiff has not
shown the application of claim preclusion is unjust. Among other
things, he has failed to show the amount of PAGA penalties
allocated to the aggrieved employees in the Reyes settlement is
unfair.
Next, the Plaintiff contends the third (drug testing) and fourth
(unpaid vacation) causes of action were unreleasable under sections
206 and 206.5. The Court of Appeals holds that the Plaintiff has
not cited any case law showing sections 206 and 206.5 have any
effect on claim preclusion analysis. Nor does he present any
argument that they should, let alone explain how these sections can
be harmonized with primary rights analysis. As such, he has failed
to meet his burden to affirmatively demonstrate error.
Finally, the Plaintiff makes an argument based on Reyes' PAGA
notice to the LWDA, which is a prerequisite to commencing a PAGA
action. While the Court of Appeals recognizes the Reyes settlement
involved PAGA claims and class claims, the Plaintiff has not cited
any authority for the proposition that the preclusive effect of a
PAGA judgment is narrower than that of a class action judgment.
IV. Disposition
While he concedes some of his claims overlap with the Reyes action,
the Plaintiff maintains his lawsuit asserted several unique causes
of action that the trial court incorrectly found were barred by
claim preclusion. The Court of Appeals disagrees. The claims
asserted in the action all involve the same primary rights as those
in the Reyes action, and, consequently, they are barred by claim
preclusion.
As such, it affirmed the judgment. The Defendant is entitled to its
costs on appeal.
A full-text copy of the Court's April 26, 2022 Opinion is available
at https://tinyurl.com/2p8unfv3 from Leagle.com.
Diversity Law Group, Larry W. Lee, Max W. Gavron --
mgavron@diversitylaw.com; Fenton & Keller, Christopher E. Panetta,
Sharilyn R. Payne and Elizabeth R. Leitzinger, for the Plaintiff
and Appellant.
Perkins Coie, Sopen Shah -- SShah@perkinscoie.com -- Jon G.
Daryanani -- JDaryanani@perkinscoie.com -- and Jill L. Ripke --
JRipke@perkinscoie.com -- for the Defendant and Respondent.
PLATINUM RESTAURANTS: Green's $850K Class Deal Wins Prelim. Nod
---------------------------------------------------------------
In the case, LAUREN GREEN, ET AL., Plaintiffs, v. PLATINUM
RESTAURANTS MID-AMERICA LLC D/B/A EDDIE MERLOT'S PRIME AGED BEEF
AND SEAFOOD, Defendant, Civil Action No. 3:14-cv-439 (W.D. Ky.),
Judge Rebecca Grady Jennings of the U.S. District Court for the
Western District of Kentucky, Louisville Division, granted the
Parties' Joint Motion for Preliminary Approval of Settlement
Agreement.
I. Background
The Plaintiffs sued the Defendant seeking relief for alleged
violations of Fair Labor Standards Act, 29 U.S.C. Section 216(b)
("FLSA"). The Plaintiffs brought the hybrid collective action and
putative class action against the Defendant. The Defendant owns
Eddie Merlot's Prime Aged Beef and Seafood Restaurant in Louisville
Kentucky. The Named Plaintiffs are former or current Eddie Merlot's
servers, bartenders, or other tipped non-management employees who
claim violations of the FLSA.
The Court then granted the Plaintiffs' motion for class
certification under Federal Rule of Civil Procedure 23. It defined
the Rule 23 class as "all Servers, Cocktail Servers, and Bartenders
employed by the defendant in its Louisville restaurant since it
opened on Jan. 6, 2011." The Court also appointed the Plaintiffs'
Counsel (the law firms of Wiggins, Childs, Pantazis, Fisher, &
Goldfarb, LLC and Adams Landenwich & Walton, PLLC) as the Class
Counsel under Rule 23(g).
The Parties now move for preliminary approval of their settlement
agreement. They have reached a comprehensive settlement and seek
preliminary approval of the Agreement, which applies to the Rule 23
class members and the individuals who opted-into the litigation
pursuant to the FLSA.
The Agreement will cover 217 individuals who are either part of the
Rule 23 class action or FLSA collective action. The Agreement
includes a total settlement of $850,000, which will cover all the
individual payments to the Plaintiffs and the Class Counsel's
attorneys' fees and costs.
Of the Total Settlement Amount, the Class Counsel will receive an
award of $31,067.25, reflective of the fees and costs awarded to
Class Counsel in the Court's Order dated Aug. 22, 2019. The Class
Counsel also requests an award as compensation for their efforts,
not to exceed $318,932.75 from the Total Settlement Amount.
To provide notice of the settlement, the Parties have prepared a
Notice of Proposed Class and Collective Action Settlement and
Fairness Hearing. The Notice explains the nature of the action and
the Agreement and will be mailed, along with the Opt-Out Statement,
to all members of the Rule 23 class.
II. Disposition
Judge Jennings granted the Motion. The settlement set forth in the
Agreement between the Parties is preliminarily approved as fair,
reasonable, adequate, within the range of possible approval, and in
the best interests of the Rule 23 class, subject to a hearing for
final approval. The Court further preliminarily finds that the
settlement provided for in the Agreement represents a fair,
reasonable, and adequate settlement to the Rule 23 class as a
whole. The proposed Agreement is sufficient to justify the issuance
of notice of the settlement to the Rule 23 class.
The Notice and the Opt-Out Statement are approved. Judge Jennings
ordered that the Defendant provide the Class Counsel with a list,
in electronic form, of the Rule 23 settlement class members,
including each individual's last known address, within three
business days after the entry date of the Order. She ordered that
the Class Counsel mail the Notice Materials via first-class mail to
the Rule 23 settlement class members within fourteen days after
Defendants produce such list with addresses.
Any member of the Rule 23 settlement class who wishes to opt out of
the class must do so by properly completing the Opt-Out Statement
and mailing it to the Class Counsel. The Opt-Out Statement must be
received by the Class Counsel within 30 calendar days after the
date on which Class Counsel mails the Notice to class members. The
Class Counsel will provide the Counsel for the Defendant returned
opt-out statements, and will file them with the Court, as set forth
in the Agreement.
The Court will conduct a Fairness Hearing regarding the proposed
settlement on Aug. 4, 2022, at 10:00 a.m. (EDT). The Class Counsel
will file objections with the Court and provide them to the Counsel
for the Defendant as set forth in the Agreement.
All proceedings in the action, other than such proceedings as may
be necessary to carry out the terms and conditions of the
Agreement, are stayed and suspended until further order of the
Court.
The submissions of the Parties in support of the settlement,
including the Plaintiff's Counsels' application for Attorneys' Fees
and Expenses and incentive awards, will be filed with the Court no
later than 35 days before the Fairness Hearing and may be
supplemented up to seven days before the Fairness Hearing.
The following motions are administratively remanded pending the
Court's approval of the settlement in the matter and will only be
reinstated if the settlement is not approved:
a. the Defendant's Motion for Leave to Exceed Page
Limitations,
b. the Defendant's Motion for Summary Judgment,
c. the Defendant's Motion in the Alternative to Decertify
Class and Collective Action Claims,
d. the Plaintiffs' Motion to Exceed Page Limits,
e. the Plaintiffs' Motion to Substitute,
f. the Plaintiffs' Motion to Supplement Evidentiary
Submission, and
g. the Defendant's Motion for Leave to Exceed Page
Limitations.
A full-text copy of the Court's April 26, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/2p8tp6d7 from
Leagle.com.
POINT PARK: Time to Complete Discovery Extended in Figueroa
-----------------------------------------------------------
In the class action lawsuit captioned as FIGUEROA, et al v. POINT
PARK UNIVERSITY, Case No. 2:20-cv-01484 (W.D. Pa.), the Hon. Judge
Lisa Pupo Lenihan entered an order extending the time to complete
discovery as follows:
-- All discovery related to class Aug. 1, 2022
certification shall be completed
not later than:
-- A status/settlement conference Aug. 12, 2022
will be held on:
The nature of suit states Diversity -- Other Contract.
Point Park University is a private university in Pittsburgh,
Pennsylvania. Formerly known as Point Park College, the school name
was revised in 2004 to reflect the number of graduate programs
being offered.[CC]
PREMIER NUTRITION: Bid to Decertify Class in Montera Suit Denied
----------------------------------------------------------------
In the case, MARY BETH MONTERA, Plaintiff v. PREMIER NUTRITION
CORPORATION, Defendant, Case No. 16-cv-06980-RS (N.D. Cal.), Judge
Richard Seeborg of the U.S. District Court for the Northern
District of California:
(1) granted the Defendant's motion to exclude certain opinions
of Dr. Farshid Guilak;
(2) granted in part and denied in part the Defendant's motion
to exclude opinions of Dr. Derek Rucker;
(3) denied the Defendant's other motions to exclude testimony;
(4) granted the Plaintiff's motions to exclude the expert
testimony of Dr. Kevin Stone and Lance Palumbo;
(5) granted in part and denied in part the Plaintiff's motions
to exclude the testimony of Dr. Stuart Silverman and
Dr. Daniel Grande;
(6) denied his motions to exclude testimony of Dr. Joel
Steckel, Dr. William Choi, and Hal Pore; and
(7) denied the Defendants' motion to decertify the class.
I. Background
In the false advertising class action averring violations of New
York's General Business Law ("GBL") Sections 349 and 350, Lead
Plaintiff Montera and Defendant Premier each bring motions to
exclude the testimony of various expert witnesses.
The case is one of numerous certified class actions pending before
the Court alleging false advertising and other claims in Defendant
Premier's promotion of Joint Juice, a line of joint health dietary
supplements. Each class action concerns a set of plaintiffs in a
different state; the action concerns consumers in New York.
In November 2021, the Court set the case for trial on May 23, 2022,
the first of these related cases to proceed to trial. The Defendant
brings four motions to exclude expert testimony; the Plaintiff
brings seven motions. The Defendant also brings a motion to
decertify the class, relying on the expert reports it proffers and
noting perceived absences in the evidence proffered by the
Plaintiff.
II. Discussion
A. Premier's Motions to Exclude Expert Witness Testimony
1. Farshid Guilak, Ph.D.
The Plaintiff offers the opinions of Farshad Guilak, Ph.D., an
osteoarthritis researcher. Premier moves to exclude Dr. Guilak's
opinions concerning studies he performed on pig cartilage, in which
he refined off-the-shelf pills from other glucosamine and
chondroitin supplements into a liquid form, and injected the
ingredients into the pig cartilage to study the supplements'
effects. Premier argues that these opinions should be excluded
because (1) his methods were developed solely for litigation and
have never been peer-reviewed or published; (2) he did not apply
his methodology reliably to the case, because he used pills from
other glucosamine supplement brands which did not contain the same
formulation of ingredients as Joint Juice; and (3) his opinions are
irrelevant because he did not test the formulation of ingredients
present in Joint Juice.
Judge Seeborg finds that the Plaintiff fails to identify any
specific study in which Dr. Guilak's method or a similar procedure
has been used to dissolve off-the-shelf pills. The proponent of the
testimony bears the burden of establishing its admissibility. It is
certainly possible that Dr. Guilak's process for dissolving
off-the-shelf pills for use on cartilage explants is reliable and
accepted in the scientific community. The Plaintiff, however, fails
to meet her burden of providing evidence to demonstrate such
reliability and acceptance. The Defendant's motion to exclude the
opinions of Dr. Guilak concerning his studies of other glucosamine
and chondroitin supplements on pig cartilage is therefore granted.
2. J. Michael Dennis, Ph.D.
Premier argues that Dr. Michael Dennis' survey deviates from
accepted principles of survey design because it "relies on improper
closed-ended and leading questions, lacks a control, and
manipulates the sample to an incorrect universe of respondents."
The Plaintiff argues that any concerns regarding the survey go to
weight, not admissibility. The Defendant points to numerous cases
in which courts have excluded surveys conducted by Dr. Dennis due
to unreliable methodology, and the Plaintiffs in response point to
a considerable number of courts which have admitted his surveys
using similar methodologies to the one proffered in the case.
Judge Seeborg holds that (i) the survey's reliance on closed-ended
questions does not merit exclusion; (ii) Dr. Dennis' survey and
opinions should not be excluded because of the failure to include a
control group; and (iii) Dr. Dennis's choice to exclude respondents
below the age of 35 does not render his survey unreliable based on
a manipulated sample. In short, the motion to exclude Dr. Dennis'
survey is denied. Any concerns about the methodology of the survey
go to weight, not admissibility, and Premier may explore these
issues on cross-examination.
3. Derek Rucker, Ph.D.
Derek Rucker, Ph.D., is a professor of marketing who Plaintiff has
retained to opine about the marketing and advertising of Joint
Juice, and how the "message" from Joint Juice advertising
influences consumers. Rucker's testimony both synthesizes the
Defendant's internal documents about marketing strategies, and
opines how consumers interpreted the Defendant's marketing. Premier
argues that Dr. Rucker's analysis is not based on any methodology
or recognized scientific principle. Premier also argues that Dr.
Rucker's opinion is cumulative of Dr. Dennis', and that Dr. Rucker
merely parrots back the conclusions of the Dennis survey.
Judge Seeborg finds that Dr. Rucker's testimony concerning how
consumers interpreted the intended message is not admissible. Dr.
Rucker provides little support for his opinion on how consumers
actually interpreted the messages beyond the results of the Dennis
Survey, results the Plaintiff may introduce via Dr. Dennis himself.
Other courts have distinguished between a marketing expert's
testimony on a company's marketing strategies and testimony on how
those messages were actually received. The Defendant's motion is
therefore granted as to his opinion about how the intended
marketing message was interpreted by consumers, and denied as to
all other opinions.
3. Colin Weir
Weir is an economist the Plaintiffs retained to provide
calculations on statutory damages. Premier argues that Weir's
calculation of statutory damages relies on incorrect assumptions
concerning the relevant New York statutes, GBL Sections 349(h) and
350-e. Section 349(h) provides that "any person who has been
injured by reason of any violation of the section may bring an
actio to recover his actual damages or fifty dollars, whichever is
greater." Section 350-e(3) similarly states "any person who has
been injured by reason of any violation of section 350 may bring an
action to recover his or her actual damages or five hundred
dollars, whichever is greater." Premier argues that New York
consumer protection statutes dictate that statutory damages are
awarded on a per person basis, rather than a per transaction or
unit basis, and that Weir's testimony presumes the availability of
per unit statutory damages. The Plaintiff argues New York law
allows statutory damages on a per unit basis.
Judge Seeborg holds that a reading of sections 349 and 350 that
recognizes a plaintiff experiences a violation each time the
product is purchased is consistent with the text and intent of the
statute. Thus, GBL Sections 349(h) and 350-e allow statutory
damages on a per unit basis. The motion to exclude the portion of
Weir's testimony concerning per unit damages calculations is
therefore denied.
B. Plaintiff's Motions to Exclude Expert Witness Testimony
1. Stuart L. Silverman, M.D.
Dr. Stuart Silverman is a rheumatologist Premier offers to provide
testimony on health benefits of Joint Juice. The Plaintiff seeks to
exclude his testimony, raising a variety of objections to his
report. First, the Plaintiff critiques the studies Dr. Silverman
cites in support of his opinions, such as his purported failure to
account for contrary evidence, along with his reliance on
biomarker, animal, and small sample size studies. Second, the
Plaintiff argues his personal observations are irrelevant,
unreliable, and prejudicial, since Dr. Silverman does not have
recorded data of his patients' experiences with glucosamine
supplements. Third, the Plaintiff argues Dr. Silverman's opinions
on bioavailability and microbiota lack a connection to the science
in the case. Fourth, the Plaintiff argues that Dr. Silverman is not
qualified to opine about governmental regulations and the approval
for use of glucosamine by a regulator abroad. Fifth, the Plaintiff
argues Dr. Silverman cannot opine about the safety of standard
treatments for glucosamine and the need for alternative
treatments.
Judge Seeborg holds that the motion to exclude Dr. Silverman's
testimony is granted as to his opinions on microbiome and
bioavailability studies, the effectiveness of glucosamine from his
clinical observations, and the importance of developing alternative
osteoarthritis treatments. The motion is denied as to the other
challenges to his testimony.
2. Daniel A. Grande, Ph.D.
Dr. Grande is a specialist in cartilage repair and regeneration,
offered by Premier to opine on scientific studies about the effects
of glucosamine. The Plaintiff seeks to exclude his opinions for
reasons similar to the reasons for which she sought to exclude Dr.
Silverman: That he relies too heavily on biomarker studies, he
ignores clinical trial studies in favor of discussing the
microbiome and prebiotics, and he relies on studies such as animal
and in vitro studies that are unreliable.
Judge Seeborg finds that just as with Dr. Silverman, the
Plaintiff's concerns about the studies he relies on largely go to
weight, not admissibility. The Plaintiff may cross-examine Dr.
Grande about the perceived weaknesses of biomarker, animal, and in
vitro studies, and his failure to address other studies she finds
more reliable, but Dr. Grande's opinions on those studies are not
excluded. As for Dr. Grande's opinions on the microbiome and
bioavailability, Dr. Grande cannot offer opinions on either
subjects. The studies Dr. Grande relies upon offer no more than
speculation, and thus his opinions on the subject are not reliable.
Further, the studies Dr. Grande relies on were pilot studies
designed to evaluate whether more in-depth study is warranted.
These studies thus provide the kind of speculation that is
inadmissible under Daubert.
3. William S. Choi, Ph.D.
Dr. Choi is a rebuttal expert offered by Premier to opine on
damages. The Plaintiff argues his testimony must be excluded
because (1) he is not a proper rebuttal witness, as his testimony
does not respond to other experts; (2) his opinions on damages are
irrelevant, because they concern the actual price class members
paid for Joint Juice rather than the higher statutory damages
amounts allowed; and (3) if his rebuttal is proper and his opinions
are relevant, his opinion is nonetheless based on a flawed
methodology.
Judge Seeborg holds that Dr. Choi was not disclosed until after the
deadline to disclose initial expert reports, and thus his opinion
may only be considered if the report is properly considered a
rebuttal report, or if any failure to disclose his opinion in a
timely manner was harmless. Since Dr. Choi's report is related to
rebutting and refuting an opinion set forth by the Plaintiff's
expert on a topic for which Plaintiff has the burden of proof, Dr.
Choi's report is properly considered a rebuttal report. Finally, as
for the Plaintiff's concerns with Dr. Choi's methodology, those
concerns are properly addressed on cross-examination, rather than
being grounds for exclusion. The motion to exclude testimony of Dr.
Choi is therefore denied.
4. Hal Poret
Hal Poret created a survey which addressed why consumers purchase
Joint Juice as compared to other glucosamine products. The
Plaintiff challenges Poret's survey under both Rule 702 and Rule
401, arguing that the survey is irrelevant based on unreliable
methods. Concerning relevancy, the Plaintiff argues that Poret's
survey is irrelevant because it addresses why people who choose to
purchase a glucosamine supplement choose Joint Juice over other
supplements, and thus does not address the question at issue in
this litigation.
Judge Seeborg denied the motion to exclude the testimony of Poret.
Recognizing that "the relevancy bar is low," he finds that Poret's
survey appears to have limited probative value in the case, but is
nonetheless relevant. The Plaintiff has presented numerous
arguments about the shortcomings of the survey in terms of
questions not asked and assumptions made, but these issues may be
addressed on cross-examination. Similarly, any concerns about the
methodology are grounds for cross-examination, not exclusion.
5. Joel Steckel, Ph.D.
The Plaintiff moves to exclude three opinions advanced by rebuttal
expert Dr. Joel Steckel, who responded to the Dennis Survey: (1)
his view that had Dr. Dennis used open-ended questions, survey
respondents would have responded differently; (2) his opinion about
Dr. Dennis's failure to use a control group to account for survey
respondents' preexisting knowledge about the glucosamine market;
and (3) that materiality questions in the Dennis Survey suffer from
order effects, the phenomenon that the order in which questions are
asked may influence answers. The Plaintiff argues these opinions
"amount to nothing more than untested hypotheses and theories" as
they are couched with the terms "might," "possible," and
"potentially." He argues these opinions do not meet the criteria of
Rule 702 and Daubert.
Although Dr. Steckel did not conduct his own testing or survey,
Judge Seeborg holds that he supports each of the challenged
opinions with citations. Notably, his role in the case is limited
-- as he is a rebuttal witness --and the Plaintiff does not
challenge his qualifications. His testimony is relevant to
evaluating the reliability of the Dennis Survey, and thus is
relevant to a factual matter in this case. Any concerns about Dr.
Steckel's failure to produce his own survey or data may be
addressed on cross-examination. Thus, the Plaintiff's motion to
exclude three of Dr. Steckel's opinions is denied.
6. J. Kevin Robert Stone, M.D.
The Plaintiff seeks to exclude the expert testimony of Dr. Kevin R.
Stone, an orthopedic surgeon who created the Joint Juice product
and founded Premier Nutrition. The Defendant seeks to offer Dr.
Stone, who was affiliated with the company until 2013, as a
non-retained expert witness. Plaintiff argues that (1) the
Defendant did not provide an adequate summary of his proposed
testimony; (2) the types of opinions for which the Defendant seeks
to offer Dr. Stone require that he provide a full written report;
and (3) that expert testimony offered by Dr. Stone should be
excluded because it is unreliable and cumulative.
Judge Seeborg finds that (i) Dr. Stone's summary of the opinions he
plans to provide is insufficient; (ii) the Defendant's failure to
provide a proper summary is not "'substantially justified' or
'harmless,'" so as to prevent exclusion; and (iii) even if
exclusion was not proper for the reasons described, to the extent
the Defendant seeks to have Dr. Stone opine on studies that he only
reviewed in preparation for litigation, Dr. Stone would have needed
to provide a written report. Dr. Stone testified in his deposition
that he had only reviewed some studies after Premier's attorneys
had provided them to him. To the extent the Defendant sought to
have Dr. Stone testify about matters that he learned of in
anticipation of litigation rather than through percipient
knowledge, he was required to provide a written report, and any
such opinions concerning those studies is excluded from trial.
7. Lance Palumbo
Palumbo is a former Brand Director of Joint Juice. Premier offers
Palumbo as a non-retained expert witness, and the Plaintiff seeks
to exclude him for reasons similar to the exclusion of Dr. Stone.
As with Dr. Stone, the provided summary lists a variety of topics
but "fails to include any facts on which Palumbo will rely, nor
does it state the opinions to which Palumbo expected to testify."
Further, exclusion is warranted because the fact the Plaintiff
deposed Palumbo in 2014 does not mean the failure to give notice of
the specific opinions and facts at issue is substantially justified
or harmless.
Additionally, even if his proposed expert testimony was not
excluded, Palumbo would not be qualified to opine on scientific
matters. The Defendant proposes that he will "testify regarding
studies on the efficacy of glucosamine and/or chondroitin" and "the
benefits of Joint Juice." It is unclear how Palumbo has any of the
requisite scientific experience to opine about scientific studies
in front of the jury. Thus, even if Palumbo were allowed to provide
expert testimony, any expert testimony concerning scientific
matters and studies would be excluded pursuant to Federal Rule of
Evidence 702.
C. Motion to Decertify the Class
Following the close of discovery, Premier argues that the Plaintiff
does not have common evidence of causation necessary for both the
causation element of her substantive claims and Article III
standing, and thus individualized issues will defeat predominance.
Further, the Defendant also argues that Plaintiff has no evidence
to support a "full refund" measure of damages under New York law,
and thus individual issues will predominate as to damages.
Judge Seeborg holds that (i) common evidence will redominate over
individual issues as to proof of causation under GBL Sections 349
and 350 because the Plaintiff has alleged a causal nexus within the
meaning of GBL sections 349 and 350(i) and contrary to the
Defendant's argument, the Plaintiff has presented common evidence
that Premier's marketing statements caused class members to
purchase Joint Juice; (ii) the individualized inquiries into the
standing issue will not predominate over common questions because
the Plaintiff has provided common evidence of causation necessary
to prove violations of GBL Sections 349 and 350; and (iii) the
availability of statutory damages on a per unit basis separately
establishes that predominance is satisfied as to damages, because
it appears statutory damages will likely exceed any actual
damages.
III. Conclusion
For all the foregoing reasons, Defendant's motion to exclude
certain opinions of Dr. Farshid Guilak is granted, and the
Defendant's motion to exclude some of the opinions of Dr. Derek
Rucker is granted in part and denied in part. The Defendant's other
motions to exclude testimony are denied.
The Plaintiff's motions to exclude the expert testimony of Dr.
Kevin Stone and Lance Palumbo are granted. The motions to exclude
the testimony of Dr. Stuart Silverman and Dr. Daniel Grande are
granted in part and denied in part. The motions to exclude
testimony of Dr. Joel Steckel, Dr. William Choi, and Hal Poret are
denied.
The motion to decertify the class is, therefore, denied.
A full-text copy of the Court's April 26, 2022 Order is available
at https://tinyurl.com/y6md43a4 from Leagle.com.
RHODE ISLAND: Partly Compelled to Show Docs in Liberty v. RIDOC
---------------------------------------------------------------
In the case, CHARLENE LIBERTY, et al., Plaintiffs v. RHODE ISLAND
DEPARTMENT OF CORRECTIONS, et al., Defendants, C.A. No. 19-573JJM
(D.R.I.), Magistrate Judge Patricia A. Sullivan of the U.S.
District Court for the District of Rhode Island granted in part and
denied in part the Plaintiffs' motion to compel the Defendants'
production of documents.
I. Background
The putative class action addresses the constitutional and federal
statutory limitations on the use of placement in restrictive
housing/solitary confinement by the Rhode Island Department of
Corrections ("RIDOC") to sanction and manage the conduct of
prisoners/detainees who have been identified as suffering from
serious and persistent mental illness ("SPMI").
The Plaintiffs' Complaint targets the existing policies, procedures
and practices of RIDOC in seeking declaratory relief. It is
forward-looking in seeking injunctive relief. It does not request
money damages. The pleading alleges that the claims are
maintainable as a class action pursuant to Fed. R. Civ. P. 23(a)
and 23(b)(1-2), although the Plaintiffs have not yet filed a motion
for class certification.
A concept that is pivotal to the case (and to the Court's
determination of Plaintiffs' motion to compel) is "Serious and
Persistent Mental Illness" or "SPMI." "SPMI," as used in the case,
is defined in the Complaint: "For purposes of the Complaint, the
term 'SPMI' refers to the definition used by RIDOC." The pleading
acknowledges that SPMI as defined by RIDOC is more limited than
what the Plaintiffs allege to be "the commonly used definition of
'serious mental illness' (SMI) that is generally utilized in the
community, correctional institutions, mental health standards and
court cases." As framed by the pleadings, RIDOC's definition of
SPMI looks at an individual's diagnoses (e.g., schizophrenia, other
psychotic disorders, bipolar disorder, major depressive disorder
and borderline personality disorder) and the extent and duration of
functional limitations due to the diagnosed impairment, without
regard to whether the limitation is attenuated by treatment.
Named as Plaintiffs are six individuals who claim that each of them
was known to be suffering from SPMI while in the custody of RIDOC,
yet each was placed in solitary confinement in violation of the
Eighth and Fourteenth Amendments of the Constitution, as well as in
contravention of the Americans with Disabilities Act ("ADA") and
Section 504 of the Rehabilitation Act. These six are suing both
individually and on behalf of a putative class of "RIDOC prisoners
and detainees identified as SPMI by RIDOC who now, or will in the
future be, subject to solitary confinement." As to four of the six,
RIDOC admits that the individual was identified by RIDOC as SPMI.
As to two of the six, RIDOC denies that it identified the
individual as SPMI.
Also joined as a Plaintiff is a not-for-profit Rhode Island
corporation known as Disability Rights Rhode Island ("DRRI"); it
brings the action on behalf of constituents with SPMI for the
purpose of both eliminating the use, and ameliorating harmful
conditions, of solitary confinement for people with SPMI. To
establish standing, DRRI alleges that it is designated by federal
law (42 U.S.C. Section 10801, et seq.) to pursue legal remedies "to
ensure that the rights of individuals with mental illness are
protected" without the participation of its individual
constituents. 42 U.S.C. Section 10801(b)(1). DRRI is focused on the
"ongoing needs and conditions of confinement of prisoners and
detainees with SPMI," alleged to include the individual Plaintiffs
and a group of "constituents" identified in the Complaint by
initials as "individual prisoners or detainees who have SPMI." DRRI
alleges that it "brings the matter on behalf of individuals with
SPMI."
The Defendants are RIDOC and senior prison officials, who are sued
in their official capacities.
As pled, the Complaint is laser focused on RIDOC's alleged practice
of using solitary confinement to punish and manage the behavior of
individuals identified by RIDOC with SPMI, which behavior is
alleged to be symptomatic of the mental illness. The Complaint
relies on 42 U.S.C. Section 1983 to allege that RIDOC's approach to
solitary confinement (including isolation, lack of exercise, fresh
air and sunlight, sensory deprivation and lack of meaningful
activity) for individuals with SPMI violates the Eighth and
Fourteenth Amendments of the United States Constitution, amounting
to cruel and unusual punishment, because it is well known that such
treatment undermines these individuals' health and exacerbates the
illness that is the root cause of the conduct.
The Complaint also invokes the ADA to claim that
prisoners/detainees with SPMI are disabled; instead of appropriate
treatment, persons with SPMI are excluded from services and
programming that are made available to those who are not disabled
due to the use of solitary confinement to respond to their
disability-related behaviors. The Complaint relies on Section 504
of the Rehabilitation Act to claim that RIDOC deprives incarcerated
individuals with SPMI of an integrated setting appropriate to their
needs by placing them instead in solitary confinement, which is
used as a management technique to address disability-related
conduct.
In reliance on the Constitution, ADA and Section 504, the
Plaintiffs ask the Court to declare that solitary confinement is
per se prohibited for an individual with SPMI; to alter conditions
of confinement for individuals with SPMI to eliminate isolation,
sensory deprivation, and lack of contact; to expand RIDOC's
residential treatment unit ("RTU") to accommodate all individuals
with SPMI who otherwise would be placed in solitary confinement;
and to appoint independent experts and retain jurisdiction until
future compliance is reasonably assured.
Before discovery began (and requiring significant involvement of
the Court because the initial protective order proposals were
unworkable), a Protective Order was entered permitting the
designation of documents as confidential and confidential/attorneys
and experts only. Since discovery began, the Plaintiffs have
propounded 145 document requests in three separate sets. The
Defendants have been responding to the Plaintiffs' extensive
document requests by producing (as of mid-January 2022) more than
40,000 pages of material.
II. Discussion
Now pending before the Court on referral to me for determination is
the Plaintiffs' motion to compel. The motion to compel targets the
Defendants' production of documents pursuant to the following
Document Requests:
a. Document Request 2 seeks health care records for the named
Plaintiffs.
b. Document Request 12 seeks minutes of meetings attended by
any health care staff at which the mental health of RIDOC
prisoners/detainees in restrictive housing and RIDOC procedures
regarding the use of restrictive housing for prisoners/detainees
with mental health issues was discussed, among other topics.
c. Document Requests 57, 70 and 74 seek documents sufficient
to show the number of all prisoners/detainees in restrictive
housing, as well as the number and the duration of confinement for
those in restrictive housing with SPMI.
d. Document Requests 58-59 seek documents related to the use
of force on the named Plaintiffs and the use of force in any
restrictive housing unit or the RTU.
e. Document Request 102 seeks documents sufficient to show the
total number of prisoners/detainees receiving mental health
treatment.
In response to each, the Defendants have produced a substantial set
of responsive documents.
The motion challenges the Defendants' redactions of what they
contend is irrelevant, marginally relevant and/or not requested
information in certain produced documents -- restrictive housing
reports, prescription lists, minutes of meetings attended by health
care staff at which restrictive housing was discussed, and
documentation of the use of force. Invoking Fed. R. Civ. P.
26(b)(1), the Defendants argue that the challenged redactions
conceal personal identifying information, highly confidential
medical/mental health information and other sensitive information
regarding persons who are outside the scope of what is relevant and
proportional to the needs of the case; the Defendants contend that
the redactions are appropriately based on substantial privacy and
institutional safety and security concerns. The Defendants also
point out that the discovery the Plaintiffs seek would vastly
expand the scope (and therefore the expense and complexity) of the
case far beyond the claims asserted in the Class Action Complaint
for Declaratory and Injunctive Relief and the defenses raised in
their Amended Answer.
Having carefully reviewed the parties' unusually extensive filings
and having held a lengthy hearing on the motion, Judge Sullivan
finds that the Plaintiff's Complaint raises an important issue (the
allegedly inappropriate use by prison officials of solitary
confinement to sanction and manage the non-volitional conduct that
is caused by identified SPMI), albeit one that has been at stake in
other cases that were already pending when this case was filed. She
further finds that the case has not launched a roving audit of
every aspect of the Rhode Island prison system generally or of how
the Rhode Island prison system addresses mental illness in all its
manifestations, as the Plaintiffs' experts have mistakenly
described it.
Based on her findings and for the reasons, Judge Sullivan holds
that to the extent that the Plaintiffs seek the unredaction of
information that is within the scope of their Complaint, their
motion to compel is granted. To the extent that the information
sought strays beyond what is both squarely relevant to the claims
in the Complaint and the defenses in the Answer and proportional to
the needs of the case, considering the limited issue at stake in
the action, the very significant privacy and institutional security
concerns in play, as well as the other factors listed in Fed. R.
Civ. P. 26(b)(1), the motion is denied.
III. Conclusion
Based on the foregoing, Judge Sullivan granted in part and denied
in part the Plaintiffs' motion to compel. The motion is granted to
the extent that redactions covering requested information
pertaining to prisoners/detainees with SPMI should be removed.
Otherwise, the motion is denied. The parties are directed to meet
and confer regarding the timing of the Defendants' production as
required by the Order.
A full-text copy of the Court's April 26, 2022 Memorandum & Order
is available at https://tinyurl.com/35zw2nmn from Leagle.com.
RITE AID: Byron Drug Price-Rigging Suit Stayed Pending Mediation
----------------------------------------------------------------
Rite Aid Corporation disclosed in its Form 10-K Report for the
fiscal year ended February 26, 2022, filed with the Securities and
Exchange Commission on April 25, 2022, that the putative consumer
class action lawsuit captioned "Byron Stafford v. Rite Aid Corp"
filed in the United States District Court for the Southern District
of California has been stayed.
The lawsuit contains allegations that the company was obligated to
charge the plaintiffs' insurance companies its usual and customary
prices for their prescription drugs and the company failed to do so
because the prices it reported were not equal to or adjusted to
account for the prices that Rite Aid offered to uninsured and
under-insured customers through its Rx Savings Program. Although a
stay pending the company's unsuccessful attempt to compel
arbitration has been lifted, the case is now stayed pending
mediation of these matters and another lawsuit raising usual and
customary pricing allegations filed in the United States District
Court for the Eastern District of Pennsylvania.
Rite Aid Corporation is into health care services and retail
products.
RITE AID: Josten Securties Suit Stayed Pending Mediation
--------------------------------------------------------
Rite Aid Corporation disclosed in its Form 10-K Report for the
fiscal year ended February 26, 2022, filed with the Securities and
Exchange Commission on April 25, 2022, that it a putative consumer
class action lawsuit captioned "Robert Josten v. Rite Aid Corp"
filed in the United States District Court for the Southern District
of California has been stayed.
The lawsuit contains allegations that the company was obligated to
charge the plaintiffs' insurance companies its usual and customary
prices for their prescription drugs and the company failed to do so
because the prices it reported were not equal to or adjusted to
account for the prices that Rite Aid offered to uninsured and
underinsured customers through its Rx Savings Program. Although a
stay pending the company's unsuccessful attempt to compel
arbitration has been lifted, the case is now stayed pending
mediation of these matters and another lawsuit raising usual and
customary pricing allegations filed in the United States District
Court for the Eastern District of Pennsylvania.
Rite Aid Corporation is into health care services and retail
products.
ROYAL CANIN: Wullschleger Appeals Antitrust Suit Dismissal
----------------------------------------------------------
Plaintiffs Anastasia Wullschleger, et al., are challenging a court
ruling dismissing their lawsuit styled Anastasia Wullschleger, et
al. v. Royal Canin U.S.A., Inc., et al., Case No. 4:19-cv-00235, in
the United States District Court for the Western District of
Missouri.
Defendants Royal Canin and Nestle manufacture prescription pet
foods that require the purchaser to consult with a veterinarian and
obtain a prescription before purchase. According to the Defendants,
prescription pet foods are therapeutic formulas for specific health
issues, and they may not be tolerated by all pets. However, the
Defendants have not submitted these pet foods for evaluation by the
FDA, and a prescription is not required by law.
On Feb. 8, 2019, the Plaintiffs filed the putative class action in
Jackson County, Missouri. The Plaintiffs alleged that the
Defendants' conduct amounted to a joint and coordinated violation
of the Food Drug and Cosmetic Act ("FDCA") and the FDA's regulatory
guidance in the Compliance Policy Guide ("CPG"). The complaint
asserts only state law claims, including violations of the Missouri
Merchandising Practices Act ("MMPA"), Missouri antitrust laws, and
Missouri unjust enrichment law. The Plaintiffs' prayer for relief
includes claims for money damages, and declaratory and injunctive
relief requiring that defendants comply with relevant state and
federal laws.
The Defendants removed the case to federal court, asserting federal
jurisdiction under 28 U.S.C. Section 1332(d) based on the diversity
provisions of the Class Action Fairness Act of 2005 and federal
question jurisdiction under 28 U.S.C. Section 1331.
On July 6, 2021, the Defendants filed a motion to dismiss
Plaintiff's first amended complaint which the Court granted on
March 22, 2022, through an order entered by District Judge Gary A.
Fenner.
The Plaintiffs are now taking an appeal from this ruling.
The appellate case is captioned as Anastasia Wullschleger, on
behalf of themselves and all others similarly situated; Geraldine
Brewer, Plaintiffs-Appellants v. Royal Canin U.S.A., Inc.; Nestle
Purina Petcare Company, Defendants-Appellees, Case No. 22-1796, in
the United States Court of Appeals for the Eighth Circuit, filed on
April 18, 2022.[BN]
SANMEDICA INT'L: Pizana Wins Leave to File Third Amended Complaint
------------------------------------------------------------------
In the case, RAUL PIZANA, Plaintiff v. SANMEDICA INTERNATIONAL LLC,
Defendant, Case No. 1:18-cv-00644-DAD-SKO (E.D. Cal.), Judge Dale
A. Drozd of the U.S. District Court for the Eastern District of
California granted Pizana's motion to modify the scheduling order
and for leave to file a third amended complaint filed on Dec. 23,
2020.
I. Background
The Plaintiff filed the putative class action on May 9, 2018,
challenging the advertising and efficacy of SeroVital-hgh, a
purported human growth hormone supplement produced by Defendant
SanMedica. On June 30, 2018, the Plaintiff filed a first amended
complaint as a matter of course, and the Defendant responded by
filing a motion to dismiss. The court denied the Defendant's motion
to dismiss, except with regard to one of the Plaintiff's claims
that was dismissed with leave to amend.
On Nov. 13, 2019, the Plaintiff filed the operative second amended
complaint ("SAC"), alleging three causes of action under state law
for violations of: (1) the California Consumer Legal Remedies Act
("CLRA") (Cal. Civ. Code Section 1750, et seq.); (2) the California
False Advertising Law ("FAL") (Cal. Bus. Prof. Code. Section 17500,
et seq.); and (3) the California Unfair Competition Law ("UCL")
(Cal. Bus. Prof. Code Section 17200, et seq.). On Dec. 13, 2019,
the Defendant answered the SAC.
On March 5, 2020, a scheduling conference was held, and the
assigned magistrate judge thereafter issued a scheduling order for
class certification deadlines, including that "any motions or
stipulations requesting leave to amend the pleadings be filed by no
later than June 15, 2020." The scheduling order also provided that
class certification discovery was to be completed by no later than
Dec. 18, 2020, and that any motion for class certification was to
be filed by Jan. 21, 2021. That scheduling order did not set any
other discovery or motion filing deadlines.
Discovery commenced with the Plaintiff serving discovery requests
on defendant on April 13, 2020, to which the Defendant responded by
producing "a few thousand pages of documents" on July 13, 2020 and
turning over "nearly one million pages in records" on Aug. 13,
2020. Depositions of the eight witnesses designated by the
Defendant under Rule 30(b)(6) were taken on Sept. 8, 9, 10, and 14,
2020; Nov. 12, 17, 18, and 19, 2020; and Dec. 8, 2020. The Court
observes that the discovery phase of the litigation has apparently
been somewhat contentious with both sides filing several
discovery-related motions.
In light of the information the Plaintiff learned during discovery,
on Dec. 23, 2020, the Plaintiff filed the pending motion to modify
the scheduling order and for leave to file a third amended
complaint. The Defendant filed an opposition to the pending motion
on Jan. 15, 2021, and the Plaintiff filed his reply thereto on Jan.
29, 2021.
II. Analysis
A. Whether Good Cause Exists to Modify the Scheduling Order
Courts adhere to a three-step inquiry in determining whether good
cause under Rule 16 has been satisfied: To demonstrate diligence
under Rule 16's good cause standard, the movant may be required to
show the following: (1) that she was diligent in assisting the
Court in creating a workable Rule 16 order; (2) that her
noncompliance with a Rule 16 deadline occurred or will occur,
notwithstanding her diligent efforts to comply, because of the
development of matters which could not have been reasonably
foreseen or anticipated at the time of the Rule 16 scheduling
conference; and (3) that she was diligent in seeking amendment of
the Rule 16 order, once it became apparent that she could not
comply with the order.
Judge Drozd Courts finds that he Plaintiff has established good
cause to amend the scheduling order and to extend the deadline for
filing motions requesting leave to amend the pleadings. He finds
that (i) the Plaintiff's counsel in this case timely filed several
joint scheduling reports and appeared at the scheduling conference
on March 5, 2020; (ii) the Plaintiff could not have reasonably
foreseen the need for the proposed further amendment of the
complaint prior to the June 15, 2020 deadline to amend the
pleadings because the Plaintiff did not learn of the information
underlying those proposed amendments until depositions taken in
September and November 2020; and (iii) due to the number of
depositions and manner in which the factual information supporting
the proposed amendments unfolded over several depositions taken in
September and November 2020, the Plaintiff acted with sufficient
diligence in seeking amendment by filing its pending motion on Dec.
23, 2020.
B. Whether Leave to Amend Should Be Granted
Because the Plaintiff has established good cause to modify the
scheduling order to extend the deadline to request leave to amend
the pleadings, Judge Drozd now turns to application of the Rule
15(a) standard in determining whether leave to amend should be
granted. He says, courts may decline to grant leave to amend only
if there is strong evidence of 'undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment, or
futility of amendment, etc.
Judge Drozd concludes that the Defendant has failed to carry its
burden to show that the granting of leave to amend would be futile.
He holds that (i) he cannot finds that the Plaintiff acted with
undue delay in pursuing discovery that led to uncovering the new
facts upon which the proposed amendments are based or in filing the
pending motion; (ii) the Defendant does not point to any "evidence
in the record which would indicate a wrongful motive" by the
Plaintiff in seeking the proposed amendment; (iii) there has been
no history of repeated failures to cure pleading deficiencies in
the case; and (iv) even though additional class certification
discovery will likely be necessary due to the proposed amendments
and the deadline for such discovery will need to be extended, the
Plaintiff's representation that he discovered this new information
as a result of the September and November 2020 depositions is
credible and there does not appear to have been a more efficient
way for him to have raised the proposed amendment.
Moreover, Judge Drozd finds that (i) the proposed amendment is not
futile due to any alleged lack of personal jurisdiction; (ii) the
Defendant's "standing" objection merely raises an issue to be
considered, if at all, in connection with a motion for class
certification; it does not demonstrate the futility of allowing the
proposed amendments; (iii) granting the Plaintiff leave to amend to
include the proposed allegations of alter ego liability would not
be futile; and (iv) allowing amendment to include the Plaintiff's
proposed RICO claim would not be futile.
For these reasons, Judge Drozd will grant the Plaintiff's pending
motion for leave to file a third amended complaint.
III. Conclusion
For the reasons he explained, Judge Drozd granted the Plaintiff's
motion to modify the scheduling order and for leave to file a third
amended complaint. The Plaintiff is directed to file a third
amended complaint consistent with this order within 21 days of the
Order. In the event that the response to the third amended
complaint is an answer by all the Defendants, the matter is
referred back to the assigned magistrate judge for issuance of a
new scheduling order. Of course, if the response is a motion to
dismiss the re-scheduling of the case will await the court's
resolution of any such motion(s).
A full-text copy of the Court's April 26, 2022 Order is available
at https://tinyurl.com/5n7s2fvy from Leagle.com.
SCORES HOLDING: De Oliveira Class Suit Discontinued
---------------------------------------------------
Scores Holding Company, Inc. disclosed in its Form 10-Q Report for
the fiscal year ended March 31, 2022, filed with the Securities and
Exchange Commission on April 25, 2022, that in March 26, 2021, a
Stipulation of Discontinuance was so-ordered by the Federal Court,
discontinuing all claims against the company in a class action
labor suit filed by plaintiff Luisa Santos de Oliveira in October
8, 2018, who formerly performed as an adult entertainer at "Scores"
New York.
Case captioned "Luisa Santos de Oliveira v. Scores Holding Company,
Inc., Club Azure LLC, Robert Gans, Mark S. Yackow and Howard
Rosenbluth," Docket No. 1:18-cv-06769-GBD, in the United States
District Court of the Southern District of New York alleges that
the company violated the minimum wage and overtime provisions of
the Fair Labor Standards Act, violated the New York Minimum Wage
Act and the overtime provisions of the New York State Labor Law,
violated the Spread of Hours Wage Order of the New York
Commissioner of Labor, violated the Notice and Recordkeeping
requirements of the NYLL, violated the wage statement provisions of
the NYLL, recovery of equipment costs in violation of the FLSA and
NYLL and unlawful deductions from tips in violation of the NYLL.
Santos de Oliveira brought this action as a class action and sought
certification of this action as a collective action on behalf of
herself and all other similarly situated employees and former
employees of Defendants. There was a conference on March 2, 2021
and a Scheduling Order was entered.
On March 26, 2021, a Stipulation of Discontinuance was so-ordered
by the Federal Court, discontinuing all claims against the
company.
Scores Holding Company, Inc. is a Utah corporation, formed in
September 1981 and located in New York, It is a licensing company
that utilizes the "SCORES" name and trademark for licensing options
in its services, amusement and recreation services.
SEI INVESTMENTS: Securities Class Actions in Louisiana Tossed
-------------------------------------------------------------
SEI Investments Company disclosed in its Form 10-Q Report for the
fiscal year ended December 31, 2021, filed with the Securities and
Exchange Commission on April 25, 2022, that two federal class
actions bringing claims for violations of the Louisiana
Racketeering Act and possibly conspiracy, and an action asserting
claims of negligence, breach of contract, breach of fiduciary duty,
violations of the uniform fiduciaries law, negligent
misrepresentation, detrimental reliance, violations of the
Louisiana Racketeering Act and conspiracy have been dismissed.
All claims in said litigations have been dismissed by the United
States District Court. These dismissals have been upheld on appeal
by the United States Court of Appeals for the Fifth Circuit. The
only potential recourse left for plaintiffs is to seek a writ of
certiorari from the United States Supreme Court for leave to appeal
to the Fifth Circuit decision.
SEI Investments Company provides comprehensive platforms, services
and infrastructure–encompassing technology, operational, and
investment management services–to help wealth managers, financial
advisors, investment managers, family offices, institutional and
private investors create and manage wealth.
TFORCE LOGISTICS: Lim Bid to File Documents Under Seal Nixed
------------------------------------------------------------
In the class action lawsuit captioned as SANTIAGO LIM individually
and on behalf of all others similarly situated, v. TFORCE
LOGISTICS, LLC, and TFORCE FINAL MILE WEST, LLC, Case No.
2:19-cv-04390-JAK-AGR (C.D. Cal.), the Hon. Judge John A. Kronstadt
entered an order denying the Plaintiff's Application for Leave to
File Under Seal Documents Designated as Confidential by the
Defendants That Are Submitted in Support
of Plaintiff's motion for class certification, insufficient good
cause has been shown for the requested relief.
TForce Logistics is North America's Final mile leader in same-day
and next-day delivery solutions.
A copy of the Court's order dated April 18, 2022 is available from
PacerMonitor.com at https://bit.ly/37Vqz6z at no extra charge.[CC]
TOYOTA MOTOR: Khalil, et al., Must File Class Cert Bid by May 26
----------------------------------------------------------------
In the class action lawsuit captioned as AHMED KHALIL, MICHELLE
NIDEVER, JOHN MURPHY, KEVIN NEUER, NICHOLAS WILLIAMS and DONNA SUE
SCOTT, on behalf of themselves and all others similarly situated,
v. TOYOTA MOTOR CORP, TOYOTA OTOR NORTH AMERICA, INC. and TOYOTA
MOTOR SALES, U.S.A., INC., Case No. 4:18-cv-00138-ALM (E.D. Tex.),
the Hon. Judge Amos L. Mazzant entered an order granting extension
of scheduling order deadlines as follows:
-- Disclosure of expert testimony May 26, 2022
pursuant to FED.R.CIV.P. 26(a)(2)
and Local Rule CV-26(b) on
issues for which the party has the
burden of proof.
-- Date by which Plaintiffs Must File May 26, 2022
Motion for Class Certification:
-- Disclosure of expert testimony July 7, 2022
pursuant to FED.R.CIV.P. 26(a)(2)
and Local Rule CV-26(b) on issues
for which the party does not bear
the burden of proof:
-- Close of Discovery: July 7, 2022
-- Close of Expert Discovery: August 4, 2022
-- Date by which Defendants Must July 7, 2022
File Response in Opposition
to Motion for Class Certification:
-- Reply in Further Support of Motion August 4, 2022
for Class Certification:
-- Objections to any other party's August 25, 2022
expert witnesses:
-- Hearing on Motion for Class September 2, 2022
Certification:
-- Motions to dismiss, motions August 25, 2022
for summary judgment, or
other dispositive motions:
-- Notice of intent to offer December 29, 2022
certified records:
Toyota Motor is a Japanese multinational automotive manufacturer
headquartered in Toyota City, Aichi, Japan.
A copy of the Court's order dated April 18, 2022 is available from
PacerMonitor.com at https://bit.ly/3vWKFVN at no extra charge.[CC]
TRAVELEX INSURANCE: Scheduling Order Entered in Haas Class Suit
---------------------------------------------------------------
In the class action lawsuit captioned as DONNA HAAS, on behalf of
herself and all others similarly situated, v. TRAVELEX INSURANCE
SERVICES INC., BERKSHIRE HATHAWAY SPECIALTY INSURANCE COMPANY, and
DOES 1-100, inclusive, Case No. 2:20-cv-06171-ODW-PLA (C.D. Cal.)
the Hon. Judge entered an scheduling order as follows:
Description of Event Current New
Deadline Deadline
-- Deadline for Hearing Class June 13, 2022 July 11, 2022
Certification Motion:
-- Deadline to File Reply to May 23, 2022 June 20, 2022
Class Certification Motion:
-- Deadline to File Opposition May 2, 2022 May 16, 2022
to Class Certification
Motion:
-- Deadline to File Class April 4, 2022 Completed
Certification Motion
Travelex is a leading provider of travel insurance in the United
States.
A copy of the Court's order dated April 18, 2022 is available from
PacerMonitor.com at https://bit.ly/3s1sKMM at no extra charge.[CC]
TUSCALOOSA COUNTY, AL: Court Dismisses Beasley's Amended Class Suit
-------------------------------------------------------------------
In the case, MICHELLE BEASLEY, LINDSEY WARREN, REBECCA KENNEDY, and
CHERYL MICHAELS, individually and on behalf of all those similarly
situated teachers employed by the TUSCALOOSA COUNTY SCHOOL SYSTEM,
Plaintiffs v. TUSCALOOSA COUNTY SCHOOL SYSTEM, et al., Defendants,
Case No. 7:21-cv-00890-ACA (N.D. Ala.), Judge Annemarie Carney Axon
of the U.S. District Court for the Northern District of Alabama,
Western Division, granted the Defendants' joint motion to dismiss
the amended complaint.
I. Background
Because of the COVID-19 pandemic, Defendant School System offered
students the option to take classes virtually during the 2020-2021
school year. Having both in-person and virtual students required
teachers in the School System to work longer hours and change
lesson and testing plans, but the School System did not raise
teacher salaries.
As a result, Plaintiffs Michelle Beasley, Lindsey Warren, Rebecca
Kennedy, and Cheryl Michaels, teachers in the School System, filed
the putative class action against the School System, Superintendent
of the Tuscaloosa County School System Dr. Keri Johnson, the
Tuscaloosa County Board of Education, and the members of the Board
-- Charles Orr, Portia Jones, Joe Calvin, Bill Squires, Randy
Smalley, Jamie Lake, and Don Presley.
All four Plaintiffs assert that:
(1) Dr. Johnson and the Board Members denied them procedural
due process by increasing their workload without providing
additional compensation, which constituted a partial termination
and a reduction in their rates of compensation (Count One);
(2) the School System and the Board breached contracts with
Plaintiffs by lengthening the workday without increasing
compensation and by failing to compensate teachers for teaching
quarantined students remotely (Count Two); and
(3) in the alternative to the breach of contract claim, the
School System and the Board are liable for quantum meruit (Count
Three).
In addition, Ms. Beasley and Ms. Kennedy assert that:
(4) the School System and the Board discriminated against
them based on their sex, in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. Section 2000e (Count Four).
The School System, the Board, and the Board Members have jointly
moved to dismiss the amended complaint. Dr. Johnson has separately
moved to dismiss the amended complaint. And the Plaintiffs have
moved to amend the complaint, seeking to add Ms. Warren as a
Plaintiff asserting Count Four.
II. Discussion
The Plaintiffs assert that Dr. Johnson and the Board Members denied
them procedural due process; that the School System and the Board
breached their employment contracts; that the School System and the
Board are liable for quantum meruit; and that the School System and
the Board violated Title VII by discriminating against them based
on their sex. The Defendants seek to dismiss all claims under
Federal Rule of Civil Procedure 12(b)(6).
Under Rule 12(b)(6), the court must dismiss the case if the
plaintiff fails to plead "a claim to relief that is plausible on
its face." "A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged."
A plausible claim for relief requires "enough facts to raise a
reasonable expectation that discovery will reveal evidence" to
support the claim. A complaint need not contain detailed factual
allegations, but it must contain "more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action
will not do."
A. Count One (Procedural Due Process)
In this claim, the Plaintiffs allege that Dr. Johnson unilaterally
required teachers in the School System to teach online classes to
virtual and quarantined students without providing additional
compensation. According to the Plaintiffs, this unauthorized
reduction in their rate of compensation is a partial termination of
employment under Alabama law. They assert that Dr. Johnson's
enactment of this change without authorization from the Board and
the Board's failure to vote on Dr. Johnson's plan amounts to a
violation of procedural due process by Dr. Johnson and the Board
Members.
The Board Members move to dismiss this claim for failure to state a
claim and based on their entitlement to qualified immunity. Dr.
Johnson moves to dismiss this claim based on her entitlement to
qualified immunity, an assertion that includes her argument that
Plaintiffs fail to state a procedural due process claim.
Because Judge Axon finds that the Plaintiffs do not state a
procedural due process claim, she does not address the qualified
immunity question. She concludes that Parratt v. Taylor, 451 U.S.
527 (1981) shows that the Plaintiffs could have requested hearings
after the superintendent made her unilateral changes to their jobs,
even absent a formal recommendation by the superintendent. The
Board could then have either granted hearings or denied hearings
and, if the Board denied hearings, the Plaintiffs could have
appealed under Section 16-24C-12.
In other words, state remedies that could have cured the alleged
procedural deprivations were available to the Plaintiffs. As a
result, they fail to state a claim for violation of their
procedural due process rights. Judge Axon therefore grants the
Defendants' motion to dismiss Count One for failure to state a
claim and dismisses Count One with prejudice.
B. Count Four (Title VII)
The only other federal claim made in the case is Count Four, in
which two of the Plaintiffs -- Ms. Beasley and Ms. Kennedy --
assert that the School System and the Board discriminated against
them based on their sex, in violation of Title VII, by requiring
them to teach additional periods of instruction to virtual students
without providing additional compensation. Ms. Beasley and Ms.
Kennedy allege that this caused a disparate impact on female
teachers, who bear more household responsibilities and perform as
caregivers for family members, because they had to spend their
afternoons, evenings, and weekends working instead of performing
their duties as family and household caregivers.
The School System and the Board move to dismiss this claim on the
grounds that Ms. Beasley and Ms. Kennedy have not stated a
disparate impact discrimination claim because (1) a one-time action
cannot be an "employment practice"; (2) the Plaintiffs have not
alleged how they were affected in ways that male teachers were not;
and (3) even ifthe Plaintiffs adequately alleged a disparate
impact, the School System and the Board made the change to the
Plaintiffs' jobs to serve a legitimate, non-discriminatory business
objective.
Judge Axon agrees that the Plaintiffs have not alleged facts that
"raise a reasonable expectation that discovery will reveal
evidence" that the COVID-19 protocols used during the 2020-2021
school year had a disparate impact on female teachers. As a result,
she does not address the arguments about whether a one-time change
can be an "employment practice" or whether a defendant's allegation
of a business necessity can defeat a plaintiff's claim at the
dismissal stage.
Judge Axon opines that Ms. Beasley and Ms. Kennedy's claim rests
not on a disparate impact to their employment -- the hiring,
firing, or compensation, terms, conditions, or privileges of
employment -- but on a disparate impact to their personal lives.
Although they allege that most teachers in the School System are
female, they also allege that all teachers in the School System --
including the male teachers -- were subject to the new job
requirements and experienced the same impact to their hours and
rates of pay.
Judge Axon therefore agrees with the School System and the Board
that Ms. Beasley and Ms. Kennedy have not stated a claim of sex
discrimination because they have not alleged how this new
employment practice affected their employment in ways that it did
not affect male teachers. She grants the motion to dismiss Count
Four and dismisses the Title VII claim with prejudice.
C. Counts Two and Three (Breach of Contract and Quantum Meruit)
The remaining claims in this case assert breach of contract and
quantum meruit. The court has jurisdiction over those claims based
only on supplemental jurisdiction. When a court "has dismissed all
claims over which it has original jurisdiction," it may decline to
exercise supplemental jurisdiction over the state law claims.
Because Judge Axon has dismissed the only federal claims in the
action, she declines to exercise supplemental jurisdiction and
dismisses Counts Two and Three without prejudice for lack of
subject matter jurisdiction.
D. Motion to Amend
The Plaintiffs have also moved to amend the amended complaint to
add Ms. Warren as a plaintiff asserting Count Four. Given the
court's ruling on the Defendants' motions to dismiss, Judge Axon
denies the motion to amend as moot.
III. Disposition
Judge Axon granted the motions to dismiss filed by the School
System, the Board, the Members, and Dr. Johnson and dismissed the
federal claims asserted in Counts One and Four with prejudice.
Given the dismissal of the federal claims, Judge Axon declined to
exercise supplemental jurisdiction over the state law claims. She
denied as moot the motion to amend the complaint to add Ms. Warren
as a Plaintiff.
The Court will enter a separate final order consistent with the
Opinion.
A full-text copy of the Court's April 26, 2022 Memorandum Opinion
is available at https://tinyurl.com/ywr3w9d8 from Leagle.com.
UKG INC: Bente Suit Transferred to N.D. California
--------------------------------------------------
The case styled as Adam Bente, individually and on behalf of all
others similarly situated and the general public v. UKG, Inc., Case
No. 3:22-cv-00289 was transferred from the U.S. District Court for
the Southern District of California, to the U.S. District Court for
the Northern District of California on April 27, 2022.
The District Court Clerk assigned Case No. 3:22-cv-02554-JCS to the
proceeding.
The nature of suit is stated as Other Contract.
UKG -- https://www.ukg.com/ -- delivers HCM, payroll, HR service
delivery, and workforce management solutions.[BN]
The Plaintiff is represented by:
Alexis M. Wood, Esq.
Elisa Pineda, Esq.
Kas L. Gallucci, Esq.
Ronald Marron, Esq.
LAW OFFICES OF RONALD A MARRON APLC
651 Arroyo Drive
San Diego, CA 92103
Phone: (619) 696-9006
Fax: (619) 564-6665
Email: alexis@consumersadvocates.com
elisa@consumersadvocates.com
kas@consumersadvocates.com
ron@consumersadvocates.com
The Defendant is represented by:
Elisabeth Ann Hutchinson, Esq.
SHOOK HARDY AND BACON LLP
1660 17th Street, Suite 450
Denver, CO 80202
Phone: (303) 285-5300
Email: ehutchinson@shb.com
- and -
Tammy Beth Webb, Esq.
SHOOK, HARDY & BACON L.L.P.
555 Mission Street, Suite 2300
San Francisco, CA 94105
Phone: (415) 544-1900
Fax: (415) 391-0281
Email: tbwebb@shb.com
UNITED STATES: Appeals Prelim. Injunction Ruling in Officer's Suit
------------------------------------------------------------------
Defendants Lloyd Austin, III, et al., filed an appeal from a court
ruling entered in the lawsuit entitled AIR FORCE OFFICER, Plaintiff
v. LLOYD J. AUSTIN, III, individually and in his official capacity
as Secretary of Defense; FRANK KENDALL, III, individually and his
official capacity as Secretary of the Air Force; and ROBERT I.
MILLER, individually and his official capacity as Surgeon General
of the Air Force, Defendants, Case No. 5:22-cv-00009-TES, in the
United States District Court for the Middle District of Georgia.
The lawsuit is brought to challenge Defendants' military and
federal civilian employee COVID-19 vaccine mandates because they
violate their sincerely held religious beliefs. The Defendants
allegedly conceded the sincerity of Plaintiffs' religious
objections to being vaccinated.
Relying on the protections of the First Amendment, the Religious
Freedom Restoration Act, and the Administrative Procedure Act,
Plaintiff, a United States Air Force officer, sought a preliminary
injunction to protect her from military's mandatory COVID-19
vaccination requirement.
On February 15, 2022, District Judge Tilman E. Self, III entered an
order granting Plaintiff's motion for preliminary injunction.
The Defendants now seek a review of this order.
The appellate case is captioned as Air Force Officer v. Lloyd
Austin, III, et al., Case No. 22-11200, in the United States Court
of Appeals for the Eleventh Circuit, filed on April 12, 2022.[BN]
Defendants-Appellants LLOYD J. AUSTIN, III, individually and in his
official capacity as Secretary of Defense; FRANK KENDALL, III,
individually and in his official capacity as Secretary of the Air
Force; and ROBERT MILLER, Individually and in his official capacity
as Surgeon General of the Air Force, are represented by:
Kevin D. Abernethy, Esq.
Peter Decklin Leary, Esq.
Lance Simon, Esq.
U.S. ATTORNEY'S OFFICE
PO Box 1702
Macon, GA 31202
Telephone: (478) 621-2690
- and -
Zachary A. Avallone, Esq.
Cassie Snyder, Esq.
U.S. DEPARTMENT OF JUSTICE
1100 L St NW
Washington, DC 20005
Telephone: (202) 307-0162
- and -
Roger Grantham, Jr., Esq.
U.S. ATTORNEY'S OFFICE
PO Box 2568
Columbus, GA 31902-2568
Telephone: (706) 649-7700
Plaintiff-Appellee AIR FORCE OFFICER, on behalf of herself and all
others similarly situated, is represented by:
Stephen M. Crampton, Esq.
THOMAS MORE SOCIETY
309 W Washington St Ste 1250
Chicago, IL 60606
Telephone: (662) 255-9439
- and -
Michael Ross Hirsh, Esq.
HIRSH & HEUSER, PC
2295 Towne Lake Pkwy Ste 116-181
Woodstock, GA 30189
Telephone: (678) 653-9907
- and -
Adam Hochschild, Esq.
LAW OFFICE OF ADAM HOCHSCHILD
PO Box 401
Plainfiled, VT 05667
Telephone: (314) 503-0326
- and -
Mary Catherine Hodes, Esq.
LAW OFFICE OF MARY CATHERINE HODES
14124 Cross Trails Dr
Saint Louis, MO 63017
Telephone: (314) 825-5725
- and -
Paul Michael Jonna, Esq.
LAW OFFICE OF PAUL MICHAEL JONNA
PO Box 9120
Rancho Santa Fe, CA 92067
Telephone: (858) 759-9930
- and -
Michael McHale, Esq.
LAW OFFICE OF MICHAEL MCHALE
10506 Burt Cir Ste 110
Omaha, NE 68114
Telephone: (402) 314-0600
UNITED STATES: Seeks to Dismiss All Claims Asserted in Libman FAC
-----------------------------------------------------------------
In the class action lawsuit captioned as MICHAEL J. LIBMAN, et al.,
v. UNITED STATES OF AMERICA, et al., Case No. 2:21-cv-09455-FMO-MAA
(C.D. Cal.), the Defendant asks the Court to enter an order
dismissing all claims asserted against the United States in the
First Amended Complaint (FAC) pursuant to Fed. R. Civ. P. 12(b)(1)
& 12(b)(6) and striking certain allegations and requests for relief
as they pertain to the United States pursuant to Fed. R. Civ. P.
12(f).
A copy of the Defendant's motion dated April 18, 2022 is available
from PacerMonitor.com at https://bit.ly/3vuPXJp at no extra
charge.[CC]
The Defendant is represented by:
Tracy L. Wilkison, Esq.
David M. Harris, Esq.
Joanne S. Osinoff, Esq.
Matthew J. Smock, Esq.
ASSISTANT UNITED STATES ATTORNEY
Federal Building, Suite 7516
300 North Los Angeles Street
Los Angeles, CA 90012
Telephone: (213) 894-0397
Facsimile: (213) 894-7819
E-mail: Matthew.Smock@usdoj.gov
VOLUME SERVICES: Settlement in Jeffries Suit Gets Initial Nod
-------------------------------------------------------------
In the class action lawsuit captioned as DORIS JEFFRIES, on behalf
of herself and all other similarly situated, v. VOLUME SERVICES
AMERICA, INC. (d/b/a Centerplate and Centerplate/NBSE) and DOES 1
THROUGH 10, Case No. 1:17-cv-01788-CKK (D.C.C.), the Court entered
an order:
1. Certifying the Settlement Class for settlement purposes;
2. Appointing Plaintiff Doris Jeffries as the Class
Representative for the Settlement;
3. Appointing attorneys Chant Yedalian of Chant & Company A
Professional Law Class Corporation and Brian K. Herrington
of Chhabra Gibbs & Herrington PLLC as Class Counsel for
the Settlement Class;
4. Appointing Atticus Administration, LLC as the Settlement
Administrator to administer the Settlement;
5. Approving the proposed notice to the Settlement Class,
including the Full Notice, Library of Congress notice,
proposed website notice for third-party sites, and Claim
Form;
6. Directing notice to be made to the Settlement Class as
described in the Agreement;
7. Preliminarily approving the Settlement subject to final
review by the Court;
8. Establishing deadlines for Settlement Class members to
submit a request for exclusion from the Settlement and to
submit objections to the Settlement; and
9. Setting a final approval and fairness hearing on or about
180 days after the date that the Court grants preliminary
approval of the Settlement.
Volume Services provides commercial services.
A copy of the Plaintiff's motion to certify class dated April 18,
2022 is available from PacerMonitor.com at https://bit.ly/38CUyQP
at no extra charge.[CC]
The Plaintiff is represented by:
Brian K. Herrington, Esq.
CHHABRA GIBBS & HERRINGTON PLLC
120 North Congress Street, Suite 200
Jackson, MS 39021
Telephone: 601.326.0820
E-mail: bherrington@nationalclasslawyers.com
- and -
Chant Yedalian, Esq.
CHANT & COMPANY
A Professional Law Corporation
709 Alexander Ln
Rockwall, TX 75087
Telephone: (877) 574-7100
E-mail: chant@chant.mobi.com
- and -
Charles J. LaDuca, Esq.
CUNEO GILBERT & LADUCA
4725 Wisconsin Avenue NW, Suite 200
Washington, DC 20016
Telephone: (202) 789-3960
E-mail: charles@cuneolaw.com
VOLVO CAR USA: Buchanan Sues Over Defective Piston Rings
--------------------------------------------------------
Rollie Buchanan, Davin Card, Kim and Fred Martin Ferguson, Kevin
Flynn, Philippe Geyskens, Robert Hoffman, Eric and Mariela Kotoun,
Arthur Krichevsky, Elsie Saks, Steven Salhanick, Mark Silber,
Robert and Toni Tubbe, and Donna Urben, individually and on behalf
of all others similarly situated v. Volvo Car USA, LLC, Volvo Cars
of North America, LLC, and Volvo Personvagnar AB, et al., Case No.
2:22-cv-02227-KM-JSA (D.N.J., April 15, 2022), is brought as a
consumer class action concerning a failure to disclose material
facts and a safety concern to consumers with regards to defective
piston rings.
Volvo wrongfully and intentionally concealed a defect in the
design, manufacture, and/or workmanship of the piston rings and/or
pistons/piston heads in the Subject Engines. Here, the piston rings
cannot properly clear engine oil off the side of the cylinder wall
during the downstroke and instead push that oil up where it can
coat the top of the piston head, enter the combustion chamber, and
ignite (“Piston Defect” or “Defect”).
The Piston Defect causes the engine to consume an excessive amount
of oil because the pistons are pushing oil from the cylinder up
into the combustion chamber. It also causes the pistons and the
engine itself to fail because the pistons and other engine
components that require oil to minimize friction are not adequately
lubricated. The Piston Defect also results in the shrapnel of the
fragments of the piston rings, as they degrade, and/or minute
fragments of the piston head, to circulate throughout the engine,
damaging other engine components. For example, cylinder scoring,
which results in even more oil loss, is a frequent result of the
Piston Defect.
As a result of the Piston Defect, the Plaintiffs and Class Members
incur out of pocket costs to repair or replace the damaged engine
parts or their entire engine. A replacement of the piston rings
and/or pistons costs thousands of dollars, and the cost for
replacing a Subject Engine is well over $10,000. The Piston Defect
in the Subject Engines also presents a safety risk for Plaintiffs
and Class Members, because when a piston or pistons suddenly and
unexpectedly fail, the Class Vehicles immediately lose engine
power. A sudden loss of power poses a clear-cut safety risk - it
can prevent the driver from accelerating, maintaining speed,
engaging the brakes and even adequately controlling the steering
wheel, all of which drastically increase the risk of collisions,
and puts other drivers, passengers and pedestrians in danger.
Volvo undertook affirmative measures to conceal the Piston Defect
through, among other things, Technical Journals ("TJs") that VCNA
issued to its authorized repair facilities (but not to the class
members themselves). Volvo was sufficiently aware of the Piston
Defect from: pre-production testing; design failure mode analysis;
aggregate purchases of replacement piston rings, pistons, and
engines; class member calls to its customer service hotline; and
customer complaints made directly to its agent dealers. However,
this knowledge and information was exclusively in the possession of
Volvo and its network of dealers who are Defendants' agents for
repairs and, therefore, unavailable to consumers.
Volvo’s failure to disclose, at the time of purchase, the
pistons' marked tendency to fail is material because no reasonable
consumer expects to spend hundreds, if not thousands, of dollars to
repair or replace essential engine components expected to last much
longer than 75,000 miles of use. Had Volvo disclosed the Piston
Defect, Plaintiffs and Class Members would not have purchased the
Class Vehicles or would have paid less for them, says the
complaint.
The Plaintiffs purchased or leased any 2013-2016 Volvo vehicle
equipped with 2.0L 4-cylinder or 2.5L 5-cylinder engines.
Volvo AB designed and manufactured the Class Vehicles, the
Defendant VCUSA imported, manufactured, distributed and marketed
the Class Vehicles, and Defendant VCNA imported, distributed,
warranted, marketed, and sold the Class Vehicles through its
extensive network of authorized dealerships in the United
States.[BN]
The Plaintiff is represented by:
Russell D. Paul, Esq.
Abigail J. Gertner, Esq.
Natalie Lesser, Esq.
Amey J. Park, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Phone: (215) 875-3000
Fax: (215) 875-4604
Email: rpaul@bm.net
agertner@bm.net
nlesser@bm.net
apark@bm.net
- and -
Tarek H. Zohdy, Esq.
Cody R. Padgett, Esq.
Laura E. Goolsby, Esq.
CAPSTONE LAW APC
1875 Century Park East, Suite 1000
Los Angeles, California 90067
Phone: (310) 556-4811
Fax: (310) 943-0396
Email: Tarek.Zohdy@capstonelawyers.com
Cody.Padgett@capstonelawyers.com
Laura.Goolsby@capstonelawyers.com
VVF INTERVEST: Ruling on Robertson Bid to Certify Class Deferred
----------------------------------------------------------------
In the class action lawsuit captioned as Robertson, et al., v. VVF
Intervest, LLC, et al., Case No. 2:21-cv-02507 (D. Kan.), the Hon.
Judge Kenneth G Gale entered an order deferring ruling on motion to
certify class.
The parties have advised that they are attempting to resolve the
issues raised in this motion. Per their request, a ruling by the
District Court is deferred until the parties provide the Court with
a status update at or before the time of the Scheduling Conference
on May 24, 2022.
The suit alleges violation of the Fair Labor Standards Act.
VVF Intervest is the largest U.S. contract manufacturer of bar soap
and a leading contract manufacturer of antiperspirant.[CC]
WALMART INC: Ct. Amends Class Cert. Briefing Schedule in Powell
---------------------------------------------------------------
In the class action lawsuit captioned as DEARL POWELL, CHRISTINA
GAST, and ELIJHA GONZALEZ, as individuals and on behalf of all
others similarly situated, v. WALMART, INC; WAL-MART ASSOCIATES,
INC.; WAL-MART STORES, INC.; and DOES 1 through 50, inclusive, Case
No. 3:20-cv-02412-JLS-MSB (S.D. Cal.), the Hon. Judge Jannis L.
Sammartino entered an order he Court amending the briefing schedule
on the motion for or class certification as follows:
-- The Defendants Shall file a May 19, 2022
response to the motion on or
before:
-- The Plaintiffs may file a reply May 26, 2022
in support of the Motion, on or
before:
-- The hearing on this matter remains June 23, 2022
set for:
Walmart is an American multinational retail corporation that
operates a chain of hypermarkets, discount department stores, and
grocery stores from the United States, headquartered in
Bentonville, Arkansas.
A copy of the Court's order dated April 18, 2022 is available from
PacerMonitor.com at https://bit.ly/3y88Zqy at no extra charge.[CC]
WELCH FOODS: Clevenger Suit Seeks to Certify Two Classes
--------------------------------------------------------
In the class action lawsuit captioned as DARREN CLEVENGER and DAVID
BLOOM on behalf of themselves and all others similarly situated, v.
WELCH FOODS INC., A COOPERATIVE, THE PROMOTION IN MOTION COMPANIES,
INC., a Delaware Corporation, and DOES 1 through 25, inclusive,
Case No. 8:20-cv-01859-CJC-JDE (C.D. Cal.), the Plaintiffs ask the
Court to enter an order pursuant to Federal Rules of Civil
Procedure 23(a) and 23(b)(3), certifying two classes of consumers
-- a "Retail Class" and a "Costco Class".
This is a classic consumer-oriented cased perfectly tailored for
certification as a class action. The courts have certified similar
slack-fill cases for class adjudication. For small individual
grocery-store purchases, like the claims here, the only way to
correct wrongful conduct and obtain any recovery for consumers is
via a class action. If a class is not certified, the wrongful
conduct will continue and go unvindicated; worse still, it will
encourage Defendants to continue and increase the amount of
nonfunctional slack-fill in their products.
Indeed, since the inception of this litigation, the Defendants
actually increased the slack-fill in some of their products,
keeping the packing the same size while reducing the content of
Fruit Snacks. The current state of inflation, especially with
rising food costs straining families' budgets, underscores the
propriety and importance of the federal and state slack-fill laws,
which aid consumers in evaluating and spending their food budget
fairly and efficiently. By reducing the quantity of Fruit Snacks in
a given size box, the Defendants' are picking the pockets of
consumers.
This case arises from the Defendants' practice of "slack-filling"
boxes of their Welch's (TM) Reduced Sugar Fruit Snacks, Fruit ‘n
Yogurt™ Snacks, and certain boxes of Welch's (TM) Fruit Snacks.
The practice of using oversized containers with substantial,
nonfunctional, empty space inside them is called "slack-fill" and
is illegal under California and Federal law. The legislative and
administrative basis and policies behind the law are based on
findings that this practice leads consumers to believe they are
receiving a greater quantity of the food than is in the package
(even if the quantity or weight is accurately displayed on the
label) and that laws needed to be bolstered to prevent and remedy
this wrongful practice.
A copy of the Plaintiffs' motion to certify class dated April 19,
2022 is available from PacerMonitor.com at https://bit.ly/3vY7LeL
at no extra charge.[CC]
The Plaintiff is represented by:
Robert J. Stein, III, Esq.
Anthony E. DiVincenzo, Esq.
DI VINCENZO SCHOENFIELD STEIN
3 Park Plaza, Suite 1650
Irvine, CA 92614
Telephone: (714) 881-7002
Facsimile: (949) 221-0027
E-mail: rob@dss.law
aedivincenzo@dsschicagolaw.com
- and -
Anthony Lanza, Esq.
Farshad Ghodoosi, Esq.
LANZA & SMITH, PLC
3 Park Plaza, Suite 1650
Irvine, CA 92614
Telephone: (949) 221-0490
Facsimile: (949) 221-0027
E-mail: tony@lanzasmith.com
Farshad@Lanzasmith.com
WEST VIRGINIA UNIVERSITY: Writ of Prohibition in Thomack Denied
---------------------------------------------------------------
In the case, STATE OF WEST VIRGINIA EX REL. WEST VIRGINIA
UNIVERSITY HOSPITALS, INC.; AND WEST VIRGINIA UNITED HEALTH SYSTEM,
INC., d/b/a WVU HEALTHCARE, Petitioners v. THE HONORABLE PHILLIP D.
GAUJOT, JUDGE OF THE CIRCUIT COURT OF MONONGALIA COUNTY;
CHRISTOPHER THOMACK; AND JOSEPH MICHAEL JENKINS, Respondents, Case
No. 21-0737 (West. Va.), the Supreme Court of Appeals of West
Virginia denied WVU Hospitals' third petition for writ of
prohibition.
I. Introduction
For the third time, the Petitioners, West Virginia University
Hospitals, Inc., and West Virginia United Health System, Inc.,
d/b/a WVU Healthcare (collectively "WVU Hospitals"), seek to invoke
the original jurisdiction of the Court to obtain an extraordinary
writ of prohibition in relation to class action litigation filed by
Respondents, Christopher Thomack and Joseph Michael Jenkins
(collectively "Class Representatives"), that has been pending since
2013. This time, WVU Hospitals argue that they are entitled to
prohibitory relief because the circuit court failed to follow the
express mandate of the Court as set forth in State ex rel. West
Virginia University Hospitals, Inc. v. Gaujot, 242 W.Va. 54, 829
S.E.2d 54 (2019).
Specifically, WVU Hospitals claim that the circuit court violated
the Court's mandate by failing to conduct a sufficiently thorough
analysis of the commonality, ascertainability, and predominance
factors required for class certification under Rule 23 of the West
Virginia Rules of Civil Procedure. Additionally, WVU Hospitals
contend that the circuit court failed to give careful consideration
to ethical issues pertaining to the inclusion of lawyers within the
class definition, also in violation of this Court's mandate.
II. Background
Class Representatives Mr. Thomack and Mr. Jenkins were each injured
in unrelated accidents in 2012 and received treatment at Ruby
Memorial Hospital in Morgantown, West Virginia. Ruby is under the
umbrella of Petitioners, WVU Hospitals. Then, in anticipation of
litigation to recover damages for their accident-related injuries,
Messrs. Thomack and Jenkins each sought, through their separate
counsel, a copy of medical records documenting their respective
stays at Ruby. Mr. Thomack alleges that he was required to pay
$514.40 for a computer disc containing copies of his
already-existing computerized medical records. Mr. Jenkins
similarly avers that he was required to pay $656.80 for a computer
disc containing copies of his already-existing computerized medical
records. It is further alleged that WVU Hospitals arrived at these
amounts by charging forty cents per page for copies of already
existing medical records, regardless of whether they were produced
in paper or electronic form, along with a ten-dollar search fee.
Based on the theory that the fees charged by WVU Hospitals violated
West Virginia Code Section 16-29-2(a) (eff. 1999), Mr. Thomack
first asserted his claims against WVU Hospitals over nine years
ago, in January 2013. Mr. Jenkins followed shortly thereafter,
filing his claims in June 2013. The cases were consolidated, and
Messrs. Thomack and Jenkins filed their "Consolidated Amended
Complaint" asserting a putative class action on Jan. 9, 2014.
After the circuit court entered an order granting class
certification, WVU Hospitals filed their first petition seeking a
writ of prohibition in the Court on June 25, 2014. The petition was
refused in an unpublished order (State ex rel. WVU Hospitals v.
Gaujot, No. 14-0611 (W. Va. filed August 26, 2014) ("Gaujot I")).
More than two-and-a-half years after the writ of prohibition was
refused in Gaujot I, this Court handed down its decision in State
ex rel. Healthport Technologies, LLC v. Stucky, 239 W.Va. 239, 800
S.E.2d 506 (2017), which found that a patient lacked standing to
pursue a claim against a medical provider for allegedly excessive
charges when those charges were paid solely by the patient's
lawyer. Relying on Healthport, WVU Hospitals filed a motion in the
circuit court to decertify the class.
The motion was denied, and on July 5, 2018, the circuit court
entered an order amending the class definition as follows to
comport with the Healthport decision: Any person, who, from Jan.
18, 2008, until June 5, 2014, (1) requested in writing copies of
patient medical records from Defendant, West Virginia University
Hospitals, Inc., including the individual patient and any person
who was an authorized agent or authorized representative of the
patient through legal representation; and (2) paid the fees charged
by the Defendant to obtain such requested medical records.
WVU Hospitals then filed their second petition for writ of
prohibition on October 1, 2018, and asked this Court "to prohibit
[the circuit court judge] from conducting any further proceedings
until he has vacated his order denying their motion to decertify
the class." State ex rel. W. Va. Univ. Hosps., Inc. v. Gaujot, 242
W.Va. 54, 57, 829 S.E.2d 54, 57 (2019) ("Gaujot II"). WVU Hospitals
argued in Gaujot II that the class was improperly certified because
the features of commonality and ascertainability required by Rule
23 of the West Virginia Rules of Civil Procedure were absent, and
the class included people who lacked standing. Addressing only
commonality, the Gaujot II Court granted the writ of prohibition as
moulded, and vacated the circuit court's order denying WVU
Hospitals' motion to decertify the class.
Following this Court's remand, additional discovery was conducted.
WVU Hospitals then filed a renewed motion to decertify the class,
which the circuit court denied. However, in response to comments
made in Gaujot II regarding the inclusion of certain lawyers in the
certified class, the court redefined the class as follows: Any
person, who, from Jan. 18, 2008, until June 5, 2014, (1) requested
in writing copies of patient medical records from Defendant, West
Virginia University Hospitals, Inc., including the patient or any
person who was an authorized agent or authorized representative of
the patient; and (2) paid the fees charged by the Defendant to
obtain such requested medical records; and (3) provided however,
that attorneys who paid for a client's medical records in
connection with investigation of claims and/or litigation on behalf
of that client, but were never repaid for those costs, are
specifically excluded from class membership.
Thereafter, WVU Hospitals filed a motion under Rule 60(b) of the
West Virginia Rules of Civil Procedure asking the circuit court to
reconsider its ruling. The circuit court also denied the Rule 60(b)
motion, and WVU Hospitals filed their third petition for writ of
prohibition, alleging that the circuit court failed to follow the
express mandate of the Supreme Court of Appeals' set forth in
Gaujot II. The Supreme Court of Appeals issued a rule to show
cause.
II. Discussion
In this original jurisdiction proceeding, WVU Hospitals contend
that a writ of prohibition is warranted because the trial court
defied this Court's mandate issued in Gaujot II by failing to
conduct a sufficiently thorough analysis of the requirements for
class certification and failing to comply with the law of the
case.
In support of their petition seeking a writ of prohibition, WVU
Hospitals raise four specific areas in which they contend the
circuit court did not follow the mandate from Gaujot II. First,
they claim that the circuit court inadequately analyzed the
commonality requirement for class certification. Next, WVU
Hospitals argue that the circuit court failed to conduct a thorough
analysis of the ascertainability requirement for class
certification. Additionally, they assert that the circuit court
failed to comply with the requirements set out in State ex rel.
Surnaik Holdings of WV, LLC v. Bedell, 244 W.Va. 248, 852 S.E.2d
748 (2020), in analyzing the predominance factor for class
certification. Finally, WVU Hospitals maintain that the circuit
court failed to give careful consideration to the inclusion of
attorneys as class members as required by the mandate in Gaujot
II.
After considering the briefs and oral arguments of the parties, the
brief of amicus curiae, the appendix record for this matter, and
relevant legal precedent, the Supreme Court of Appeals finds no
inadequacy in the circuit court's findings of commonality and
ascertainability. It further concludes that the circuit court was
under no obligation to revisit its predominance analysis or the
class definition under its prior mandate. Accordingly, it denies
the requested writ of prohibition.
III. Conclusion
The Supreme Court of Appeals concludes that a writ of prohibition
is an extraordinary remedy invoking its original jurisdiction, and
it does not grant such relief lightly. In their third petition
seeking this extraordinary writ, WVU Hospitals once again challenge
the circuit court's class certification in an action that
originated more than nine years ago. The case has been so prolonged
by these filings, WVU Hospitals now endeavor to benefit from the
delays they themselves created by attempting to apply a newly
announced standard for predominance that was adopted more than six
years after the circuit court decided that issue. This is not a
proper use of the Supreme Court of Appeals' original jurisdiction.
As it explains in the body of its Opinion, it finds no inadequacy
in the circuit court's findings of commonality and
ascertainability. It further concludes that the circuit court was
under no obligation to revisit its predominance analysis or the
class definition under the Supreme Court of Appeals' prior mandate.
Accordingly, it denied the requested writ of prohibition.
A full-text copy of the Court's April 26, 2022 Opinion is available
at https://tinyurl.com/44fvn5c9 from Leagle.com.
Marc E. Williams -- marc.williams@nelsonmullins.com -- Robert L.
Massie, Jennifer W. Winkler, Nelson Mullins Riley & Scarborough,
LLP, Huntington, West Virginia, Christine S. Vaglienti, West
Virginia University Hospitals, Inc., in Morgantown, West Virginia,
Attorneys for the Petitioners.
Christopher J. Regan, Bordas & Bordas, PLLC, Wheeling, West
Virginia; David J. Romano, Jennifer L. Finch, Romano Law Offices,
Clarksburg, West Virginia, David E. Goddard , Edmund L. Wagoner,
Goddard & Wagoner, in Clarksburg, West Virginia, Attorneys for the
Respondents.
Anthony J. Majestro, Powell & Majestro PLLC, in Charleston, West
Virginia, Attorney for Amicus Curiae, West Virginia Association for
Justice.
WESTCHESTER JEWELRY: Picon Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Westchester Jewelry,
Inc. The case is styled as Yelitza Picon, on behalf of herself and
all other persons similarly situated v. Westchester Jewelry, Inc.,
Case No. 1:22-cv-03439 (S.D.N.Y., April 27, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Westchester Jewelry -- https://www.westchesterjewelry.com/ -- is a
retail jewelry store and jewelry repair.[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
WFM PRIVATE: Revised Case Scheduling Order Entered in Kellman Suit
------------------------------------------------------------------
In the class action lawsuit captioned as SHOSHA KELLMAN, on behalf
of herself and all others similarly situated, v. WFM PRIVATE LABEL,
L.P., WHOLE FOODS MARKET CALIFORNIA, INC., WHOLE FOODS MARKET
SERVICES, INC., and WHOLE FOODS MARKET DISTRIBUTION, INC., Case No.
e 3:17-cv-06584-LB (N.D. Cal.), the Hon. Judge Laurel Beeler
entered an revised case scheduling order as follows:
Case Event Date
-- Motions for class certification: September 15, 2022
-- Oppositions to motions for October 14, 2022
class certification:
-- Replies to motions for class November 11, 2022
certification:
-- Hearing date for motions for December 1, 2022
class certification and/or
further case-management
conference:
-- Further case-management Jan. 19, 2023
conference:
-- Last hearing date for April 20, 2023
dispositive motions and/or
further case-management
conference:
-- Final Pretrial Conference: July 13, 2023
-- Jury Selection: July 24, 2023
A copy of the Court's order dated April 18, 2022 is available from
PacerMonitor.com at https://bit.ly/3KrpWid at no extra charge.[CC]
WORCESTER POLYTECHNIC: Brigati Seeks Final OK of Class Settlement
-----------------------------------------------------------------
In the class action lawsuit captioned as STEVEN C. BRIGATI, on
behalf of himself and all others similarly situated, v. WORCESTER
POLYTECHNIC INSTITUTE, a Massachusetts nonprofit corporation, and
HFM, Inc., a Florida for profit corporation, Case No.
2:21-cv-14098-AMC (S.D. Fla.), the plaintiff alleges that the
Defendants violated the Plan for the Offering of Memberships in the
Legacy Golf and Tennis Club, Inc. dated September 1, 1996 by
failing to transfer the management, ownership and control of the
Legacy Golf and Tennis Club, Inc. to the owners of equity
memberships in the Club in accord with the "Turnover" provisions in
the Plan.
After years of intense, arms-length negotiations before and after
this lawsuit was filed, substantial motions practice and robust
discovery, the Plaintiff and Defendants reached an agreement to
resolve all the claims brought in this litigation.
After Defendants had filed multiple motions to dismiss, discovery
was underway, and Plaintiffs had filed a motion to certify their
proposed class, Plaintiffs discovered previously unknown
information pertinent to their quest for ownership. Because the new
information was essential and had not been pled, the Plaintiffs in
Brigati I decided to voluntarily dismiss their action and commence
a new case in which all claims could be made and all pertinent
facts could be asserted.
The Plaintiff promptly filed the present action in February 2021,
asserting claims for declaratory, injunctive and supplemental
relief, and equitable accounting. The Plaintiff filed a motion for
class certification shortly thereafter, on March 11, 2021.
On April 12, 2021, the Defendants filed a Motion to Dismiss
Plaintiff's Complaint.
The proposed Settlement Agreement contemplates that, in exchange
for the Settlement Amount, which Plaintiff will advance to
Defendants on behalf of the Settlement Class, the Defendants will
transfer to the Class Members' joint ownership, management, and
control of the Legacy Club and all of its assets.
Mr. Brigati will place the $2 million purchase price for the Legacy
Club in Ms. James' attorney trust account before the Final Approval
Hearing. Over time, the Settlement Amount will be repaid from the
Legacy Club's revenues.
Thus, the purchase of the Legacy Club will be financed, and the
proposed class members will not incur out-of-pocket expense for the
acquisition, just as the Plan envisions.
In short, if the Court approves the Settlement, the Settlement
Class will own and control the Legacy Club as the Plan contemplates
they eventually would.
The Plaintiff filed a motion seeking preliminary approval of the
Settlement on January 11, 2022, and, on January 18, 2022, the Court
granted preliminary approval.
In its Order, the Court preliminarily certified the Settlement
Class defined as:
"Every entity and individual who, according to Defendants' records,
owns an Active Equity Membership in the Legacy Golf and Tennis
Club, Inc. which is as an equity voting membership in the Legacy
Club from which the owner has not resigned and which the owner has
not redeemed or transferred pursuant to Article X, section 13 of
the By-Laws of the Legacy Club."
The Court further preliminarily deemed the Settlement Agreement to
be "in all respects fundamentally fair, reasonable, adequate, and
in the best interest of the Class Members."
The Court, therefore, approved "the form, content, and procedures
of notice to the putative Settlement Class Members as set forth in
the Settlement Agreement," found that "the plan for emailing the
notice directly to Class Members is the best notice practicable
under the circumstances and satisfies the requirements of due
process and Rule 23" and "approved, adopted and authorized for
dissemination."
A copy of the Plaintiff's motion to certify class dated April 18,
2022 is available from PacerMonitor.com at https://bit.ly/3OMZqDy
at no extra charge.[CC]
The Plaintiff is represented by:
Elaine Johnson James, Esq.
ELAINE JOHNSON JAMES, P.A.
P.O. Box 31512
Palm Beach Gardens, FL 33420
Telephone: (561) 245-1144
Facsimile: 561.244.9580
E-mail: ejames@elainejohnsonjames.com
ejjames50@icloud.com
The Defendant is represented by:
Noel R. Boeke, Esq.
HOLLAND & KNIGHT LLP
100 North Tampa Street, Suite 4100
Tampa, FL 33602
E-mail: noel.boeke@hklaw.com
- and -
Jennifer L. Chunias, Esq.
Christopher Herbert, Esq.
Courtney L. Hayden, Esq.
Timothy Bazzle
Goodwin Procter LLP
100 Northern Avenue
Boston, MA 02210
E-mail: jchunias@goodwinlaw.com
cherbert@goodwinlaw.com
chayden@goodwinlaw.com
tbazzle@goodwinlaw.com
XEROX CORP: Bid to Dismiss Carrigan Class Action Nixed
------------------------------------------------------
In the class action lawsuit captioned as CHRIS CARRIGAN, MICHAEL
VENTI, SYLVAIN YELLE, individually and as representatives of a
class of similarly situated persons, v. XEROX CORP., XEROX
CORPORATION PLAN ADMINISTRATOR COMMITTEE, JOHN DOES 1-30, Case No.
3:21-cv-01085-SVN (D. Conn.), the Hon. Judge Sarala V. Nagala
entered an order denying the Defendants' motion to dismiss.
The Plaintiffs state a claim that Defendants breached their
fiduciary duties of prudence and loyalty and that the Defendants
Xerox and John Does 1–30 failed to monitor the Committee's
administration of the Plan, the Court says.
By May 2, 2022, the Defendants shall file their answer to the
complaint. By May 9, 2022, the parties shall file a joint status
report indicating:
1. whether the parties have completed Phase One of discovery,
as defined by the parties' Rule 26(f) Report, and as
advised by the Court in its Order;
2. whether the parties request a scheduling conference to
discuss the remaining discovery needs of the case;
3. how long the parties request to complete Phase Two of
discovery;
4. the parties' requested deadlines for Plaintiffs' motion
for class certification and any dispositive motions; and
5. the parties' interest in referral to a U.S. Magistrate
Judge for a settlement conference.
Xerox is an American corporation that sells print and digital
document products and services in more than 160 countries.
A copy of the Court's order dated April 18, 2022 is available from
PacerMonitor.com at https://bit.ly/3LwdUWl at no extra charge.[CC]
YALLA GROUP: Shareholder Suit in New York Voluntarily Dismissed
---------------------------------------------------------------
Yalla Group Limited disclosed in its Form 20-F Report for the
fiscal year ended December 31, 2021, filed with the Securities and
Exchange Commission on April 25, 2022, that in January 12, 2022,
lead plaintiffs in a putative shareholder class action lawsuit
filed in the United States District Court for the Southern District
of New York voluntarily dismissed the action in its entirely with
prejudice pursuant without costs or other award to either party.
On August 13, 2021, the company and certain of its directors and
officers were named as defendants in said case. This action was
brought on behalf of persons who purchased or acquired its
securities pursuant or traceable to its September 29, 2020 initial
public offering. The complaint alleged violations of Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5
based on allegedly false and misleading statements or omissions in
its registration statement issued in connection with its initial
public offering. Lead plaintiffs were appointed on November 8,
2021. On January 12, 2022, lead plaintiffs voluntarily dismissed
the action in its entirely with prejudice pursuant to Federal Rule
of Civil Procedure 41(a)(1).
Yalla is a voice-centric social networking and entertainment
platform in Middle East and North Africa based in Dubai.
YAMHILL COUNTY, OR: Edwards Appeals Civil Rights Suit Dismissal
---------------------------------------------------------------
Janice Edwards, et al., filed an appeal from a court ruling
dismissing her lawsuit entitled JANICE EDWARDS, on behalf of minor
J.E., and CYNTHIA ECHAURI, on behalf of minor A.E., individually,
and on behalf of a class of others similarly situated, Plaintiffs
v. YAMHILL COUNTY, personally, TIM SVENSON, personally, SCOTT
PAASCH, personally, and JESSICA BEACH, personally, Defendants, Case
No. 3:19-cv-00240-AC, in the U.S. District Court for the District
of Oregon, Portland.
Plaintiffs Janice Edwards and Cynthia Echauri bring this putative
civil rights class action on behalf of juveniles formerly detained
at the Yamhill County Juvenile Detention Center pursuant to 42
U.S.C. Section 1983. The Plaintiffs contend that Defendants Yamhill
County, Tim Svenson ("Svenson"), Scott Paasch ("Paasch"), and
Jessica Beach violated class members' First, Fourth, and Eighth
Amendment rights by depriving them of basic needs, and by
maintaining policies, customs and practices that violated their
constitutional rights while in custody.
The Defendants moved to dismiss Plaintiffs' Amended Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6).
Alternatively, Defendants moved under Rule 12(e) for an order
requiring Plaintiffs to make certain allegations more definite and
certain.
On March 17, 2022, District Judge Karin J. Immergut entered an
Order and Judgment adopting in full Magistrate Judge John V.
Acosta's Findings & Recommendation grating Defendants' motion
dismiss for failure to state a claim. Judge Immergut dismissed the
case with prejudice.
The appellate case is captioned as Janice Edwards, et al. v.
Yamhill County, et al., Case No. 22-35304, in the United States
Court of Appeals for the Ninth Circuit, filed on April 15, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellants Cynthia Echauri and Janice Edwards Mediation
Questionnaire was due on April 22, 2022;
-- Appellants Cynthia Echauri and Janice Edwards opening brief
is due on June 15, 2022;
-- Appellees Jessica Beach, Scott Paasch, Tim Svenson and
Yamhill County answering brief is due on July 15, 2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiffs-Appellants JANICE EDWARDS, on behalf of Minor J.E.; and
CYNTHIA ECHAURI, on behalf of minor A.E., individually, and on
behalf of a class of others similarly situated, are represented
by:
Leonard Randolph Berman, Esq.
LAW OFFICE OF LEONARD R. BERMAN
4711 SW Huber Street, Suite E-3
Portland, OR 97219
Telephone: (503) 473-8787
Defendants-Appellees YAMHILL COUNTY; TIM SVENSON, Personally; SCOTT
PAASCH, Personally; and JESSICA BEACH, Personally, are represented
by:
David Charles Lewis, Esq.
KRAEMER, LOPEZ & LEWIS
PO Box 1469
Lake Oswego, OR 97035
Telephone: (503) 763-3861
ZOOMINFO TECHNOLOGIES: Appeals Denial of Bid to Dismiss Martinez
----------------------------------------------------------------
ZoomInfo Technologies, Inc. appeals from a court ruling denying its
motion to dismiss the lawsuit entitled KIM CARTER MARTINEZ, on
behalf of herself and all others similarly situated, Plaintiff v.
ZOOMINFO TECHNOLOGIES INC., a Delaware corporation, Defendant, Case
No. 3:21-cv-05725-MJP, pending in the U.S. District Court for the
Western District of Washington, Tacoma.
On September 30, 2021, Plaintiff Kim Martinez brought this
complaint alleging that Defendant ZoomInfo Technologies Inc.'s use
of her name, photo, and likeness in its advertisements to sell
subscriptions to its database of 125 million business professionals
and their employment information constitutes a nonconsensual
commercial misappropriation of her persona in violation of
California statutory and common law. The Plaintiff brings
individual and class claims on behalf of similarly-situated
Californians whose likenesses ZoomInfo uses to advertise its
subscription services.
In her complaint, Martinez alleges that ZoomInfo uses her "name,
personal information, and persona in advertisements promoting
website subscriptions" to ZoomInfo's database which contains
personal, employment, and historical information about many
individuals. The Plaintiff alleges that she is not a customer of
ZoomInfo and has not consented to the use of her likeness or
employment and personal history. She alleges that when a user
searches for an individual either on a search engine or ZoomInfo,
ZoomInfo displays "teaser profiles" showing some information about
the individual and offering "full access" in exchange for a
fee-based subscription.
Martinez further alleges both a mental and economic injury. She
claims she was "seriously distressed to discover that ZoomInfo is
using her name and personal information to advertise subscriptions
to zoominfo.com." She also alleges that ZoomInfo's misappropriation
of her persona injured her privacy interest in and intellectual
property rights to her persona. Martinez also alleges that ZoomInfo
has committed the tort of misappropriation of a likeness and
violated California's Right of Publicity Law, Cal. Civ. Code
Section 3344.
On December 8, 2021, the Defendant filed a motion to dismiss and
strike, which the Court denied on April 11, 2022 through an order
entered by Judge Marsha J. Pechman.
The Defendant now seeks a review of this order.
The appellate case is captioned as Kim Martinez v. ZoomInfo
Technologies, Inc., Case No. 22-35305, in the United States Court
of Appeals for the Ninth Circuit, filed on April 15, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant ZoomInfo Technologies, Inc. Mediation Questionnaire
was due on April 22, 2022;
-- Appellant ZoomInfo Technologies, Inc. opening brief is due on
June 13, 2022;
-- Appellee Kim Carter Martinez answering brief is due on July
13, 2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Defendant-Appellant ZOOMINFO TECHNOLOGIES, INC., a Delaware
corporation, is represented by:
John Wall Baumann, Esq.
Shon Morgan, Esq.
QUINN EMANUEL URQUHART & SULLIVAN, LLP
865 S Figueroa Street, 10th Floor
Los Angeles, CA 90017
Telephone: (213) 443-3169
- and -
Cristina Henriquez, Esq.
QUINN EMANUEL URQUHART & SULLIVAN, LLP
555 Twin Dolphin Drive, 5th Floor
Redwood Shores, CA 94065
Telephone: (650) 801-5000
Plaintiff-Appellee KIM CARTER MARTINEZ, on behalf of herself and
all others similarly situated, is represented by:
Marie Noel Appel, Esq.
Michael Ram, Esq.
MORGAN & MORGAN
711 Van Ness Avenue, Suite 500
San Francisco, CA 94102
Telephone: (415) 358-7155
- and -
Ben R. Osborn, Esq.
LAW OFFICE OF BENJAMIN R. OSBORN
102 Bergen Street, Suite 4
Brooklyn, NY 11201
Telephone: (347) 645-0464
- and -
Samuel J. Strauss, Esq.
TURKE & STRAUSS, LLP
613 Williamson Street, Suite 201
Madison, WI 53703
Telephone: (608) 237-1775
Asbestos Litigation
ASBESTOS UPDATE: Travelers Cos. Has 1.30BB Reserves at March 31
---------------------------------------------------------------
The Travelers Companies, Inc., has recorded net asbestos reserves
of $1.30 billion and $1.29 billion at March 31, 2022 and March 31,
2021, respectively, according to the Company's Form 10-Q filing
with the U.S. Securities and Exchange Commission.
The Company's quarterly asbestos reserve reviews include an
analysis of exposure and claim payment patterns by policyholder, as
well as recent settlements, policyholder bankruptcies, judicial
rulings and legislative actions. The Company also analyzes
developing payment patterns among policyholders and the assumed
reinsurance component of reserves, as well as projected reinsurance
billings and recoveries. In addition, the Company reviews its
historical gross and net loss and expense paid experience,
year-by-year, to assess any emerging trends, fluctuations, or
characteristics suggested by the aggregate paid activity.
Conventional actuarial methods are not utilized to establish
asbestos reserves, and the Company's evaluations have not resulted
in a reliable method to determine a meaningful average asbestos
defense or indemnity payment. Over the past decade, the property
and casualty insurance industry, including the Company, has
experienced net unfavorable prior year reserve development with
regard to asbestos reserves, but the Company believes that over
that period there has been a reduction in the volatility associated
with the Company's overall asbestos exposure as the overall
asbestos environment has evolved from one dominated by exposure to
significant litigation risks, particularly coverage disputes
relating to policyholders in bankruptcy who were asserting that
their claims were not subject to the aggregate limits contained in
their policies, to an environment primarily driven by a frequency
of litigation related to individuals with mesothelioma. The
Company's overall view of the current underlying asbestos
environment is essentially unchanged from recent periods, and there
remains a high degree of uncertainty with respect to future
exposure to asbestos claims.
A full-text copy of the Form 10-Q is available at
https://bit.ly/3LUwU0Z
*********
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