/raid1/www/Hosts/bankrupt/CAR_Public/220523.mbx
C L A S S A C T I O N R E P O R T E R
Monday, May 23, 2022, Vol. 24, No. 96
Headlines
3M COMPANY: Hamilton Consumer Suit Removed to E.D. Kentucky
ACELLA PHARMACEUTICALS: Faulkner Sues Over Sale of Defective Pills
ACUITY REAL: Lewis Appeals Dismissal of Broker Referral Suit
ADAIR GROUP: Lawal Files ADA Suit in S.D. New York
AEGIS SENIOR: N.D. California Denies Salonga's Bid to Remand Suit
AETNA HEALTH: Saloojas Sues Over COVID Health Emergency Fraud
ALCONE COMPANY: Hanyzkiewicz Files ADA Suit in E.D. New York
ALPHA 1 MARKETING: Dawkins Files ADA Suit in E.D. New York
AMERICOLD LOGISTICS: Remand of Bridgewater to State Court Denied
ANTHEM COMPANIES: Faces Fillipo FLSA Suit Over Unpaid Overtime
ANTONELLI'S CHEESE: Chalas Files ADA Suit in S.D. New York
APPLE INC: California Court Grants Bid to Dismiss Rutter Class Suit
AR RESOURCES: Fulop Files FDCPA Suit in E.D. New York
ARIZONA: Order for Gov.'s Office to Produce Docs to Toomey Affirmed
ARRIVAL SA: Schmutter Files Voluntary Dismissal of Class Action
ASH & ERIE INC: Maddy Files ADA Suit in S.D. New York
ASPEN GROUP: Stewart Suit Removed to D. Arizona
AXSOME THERAPEUTICS: Faces Gru Class Suit Over Stock Price Drop
AYOBA INC: Chalas Files ADA Suit in S.D. New York
BANCO POPULAR: Faces Lipsett Class Suit Over Collection of OD Fees
BANCO POPULAR: Fails to Protect Customers' Info, Marrero Alleges
BOTTLING GROUP: Butler Files Suit in Cal. Super. Ct.
BROMPTON BICYCLE: Hanyzkiewicz Files ADA Suit in E.D. New York
BROOKLYN BILTONG: Chalas Files ADA Suit in S.D. New York
BUKHARI GROUP: Fails to Pay Overtime Pay, Campbell Suit Alleges
CALIFORNIA SKIN: Tovar Sues to Recoup Minimum, Overtime Wages
CALIFORNIA: Has Until July 1 to File Response to Seymour v. Doe
CHARTER COMMUNICATIONS: Baird Seeks to Certify Class Claims
CHICAGO, IL: Appeals Court Flips Dismissal of Pinkston Class Suit
CHICAGO, IL: Appeals Court Reverses Dismissal of Blaha Class Suit
CHURCHILL DOWNS: Court Approves Settlement in Soileau Suit
CITIGROUP INC: Appeals Partial Denial of Bid to Dismiss Bruce Suit
CURRENEX INC: Faces EFC RICO Suit in New York Court
DECKER ELECTRIC: Hicks Files Suit in Cal. Super. Ct.
DELL TECHNOLOGIES: Brown Files ADA Suit in S.D. New York
DIAMOND TECHNICAL: Parties Seek to Certify Settlement Class
DON'T GO NUTS: Davis Files ADA Suit in S.D. New York
DREAMCATCHER BROADCASTING: King Furs Sues Over TV Ad Price Fixing
DURKEE-MOWER INC: Chalas Files ADA Suit in S.D. New York
EASLEY TRANSPORTATION: Williams Seeks Conditional Cert. of Suit
EMERALD INVESTMENT: Zepeda Files Suit in Cal. Super. Ct.
ENCORE CAPITAL: Wins Bid for Summary Judgment in Williams Suit
EXPERIAN INFORMATION: Hill-Green Files Suit in D. Nebraska
FAMILY FOODS INC: Chalas Files ADA Suit in S.D. New York
FEDEX OFFICE & PRINT: Fleissner Files Suit in Cal. Super. Ct.
FFE TRANSPORTATION: Settlement Deal in Thomas Suit Gets Initial Nod
FIRST CLASS: Bid to Decertify Class in Martinez FLSA Suit Denied
FIRST PREMIER: Moss Seeks to Certify Class
FOREVER B LLC: Chalas Files ADA Suit in S.D. New York
FREEDOM BOAT: Faces Echevarria Suit Over Unwanted Text Messages
FUNDING METRICS: Korie Files TCPA Suit in S.D. Florida
GEICO: Biscardi, et al Seek FLSA Conditional Certification
GENEVA SUPER ARMY: Maddy Files ADA Suit in S.D. New York
GEORGIA: Court Denies Bid for Appointed Counsel in Foster v. Doe
GMRG ACQ1: Palomo Suit Seeks Minimum Wages for Deliver Drivers
GNOMISH HAT: Abreu Files ADA Suit in S.D. New York
GOAUTO INSURANCE: 5th Cir. Affirms Remand of Turner Class Suit
GRAND CANYON: Villada Sues Over Sex Discrimination, Unpaid Wages
GROCERY DELIVERY: Website Not Accessible to Blind Users, Brown Says
GROUP HEALTH: Midthun-Hensen's Bid for Discovery Granted in Part
HILLERICH & BRADSBY: Abreu Files ADA Suit in S.D. New York
HIRT'S LLC: Web Site Not Accessible to Blind Users, Brown Claims
HITCHCOCK SHOES INC: Lawal Files ADA Suit in S.D. New York
HOME CONTROLS: Velazquez Files ADA Suit in E.D. New York
HOME DEPOT: Court Denies Bid to Decertify Class in Utne Suit
HOME DEPOT: Wins Judgment on Pleadings as to Utne's UCL Claim
HOPPER (USA) INC: Martinez Files ADA Suit in E.D. New York
HORIZON ACTUARIAL: Ruiz Suit Transferred to N.D. Georgia
HURRICANES HOCKEY: Website Not Accessible to Blind, Davis Alleges
ILLINOIS GASTROENTEROLOGY: McMillon Files Suit in N.D. Illinois
INDIANA: Court Refuses to Give Prelim. Injunction in Boyd v. Miller
JENNMAR CORP: Court Certifies Class & 3 Subclasses in Stacy Suit
JP MORGAN: Dennis Seeks Conditional Status of Settlement Class
JUUL LABS: E-Cigarette Ads Target Youth, Wabash City Suit Claims
JV ENTERPRISES: Brown Files ADA Suit in S.D. New York
KRAFT HEINZ: District of Wisconsin Dismisses Lemke Class Suit
LEGENDARY FOODS: Chalas Files ADA Suit in S.D. New York
LFG CORPORATION: Brown Files ADA Suit in S.D. New York
LIZHI INC: Faces Securities Suit in NY Court
LOLA GRANOLA BAR: Davis Files ADA Suit in S.D. New York
LSPACE AMERICA: Lawal Files ADA Suit in S.D. New York
LYMI INC: Iskhakova Files ADA Suit in E.D. New York
MAGICJACK LP: Iskhakova Files ADA Suit in E.D. New York
MAREDIN REST: Fails to Pay Proper Wages, Anzures Suit Alleges
MARINOSCI LAW GROUP: Burke FDCPA Suit Removed to S.D. Florida
MARTINEZ ONTIME: Violates PAGA Labor Code, Perez Class Suit Alleges
MATCH GROUP: Seeks May 25 Extension to File Class Cert. Reply
MAZIE SLATER: New Jersey Court Tosses Martino Suit With Prejudice
MCKESSON CORP: Appeals Damages Award in True Health TCPA Suit
MEDSCAN LABORATORY: Byrne Files Suit in D. North Dakota
MERCEDES-BENZ USA: Corona Files Suit in C.D. California
MICHIGAN: Rouse's Bid to Revisit Denial of Prelim. Injunction Nixed
MINDBODY INC: VFIC Seeks Declaratory Relief From Insurance Suit
MINDED INC: Chalas Files ADA Suit in S.D. New York
MONTANA UNIVERSITY: Cole, et al., Submit Class Cert Reply Brief
MRS BPO LLC: Goldstein FDCPA Suit Removed to E.D. New York
MRS BPO LLC: Heszkel FDCPA Suit Removed to E.D. New York
MULLEN AUTOMOTIVE: Gru Sues Over 10% Decline of Stock Price
MUNK PACK INC: Chalas Files ADA Suit in S.D. New York
MUSCLEPHARM CORP: Metague Sues Over Nutrition Powders' False Labels
NABORS COMPLETION: Medrano Recovers Arbitration Award, Fees & Costs
NATION COMPANY: Meahl Files Suit in W.D. Michigan
NESTLE HEALTHCARE: Owen Sues Over Mislabeled Milk Products
NESTLE USA: Prescott Appeals White Morsel False Ad Case Dismissal
NESTLE USA: Rodgers Seeks Unpaid Overtime Wages Due to Kronos Hack
NEW SCHOOL: S.D. New York Tosses Amable Class Suit With Prejudice
NFP RETIREMENT: Mismanage Retirement Plans, Mills Suit Alleges
NISSAN NORTH: Faces Martinez Suit Over Defective Motor Vehicles
NUTRADRIED FOOD: Chalas Files ADA Suit in S.D. New York
OLMA IV INC: Chalas Files ADA Suit in S.D. New York
ONPOINT ROADSIDE: Fails to Pay Earned Minimum, OT Wages for Drivers
ORR GROUP: Abreu Files ADA Suit in S.D. New York
OTIS WORLDWIDE: Faces Darnis Suit in Connecticut
OTONOMO INC: Mollaei Suit Removed to C.D. California
PACE UNIVERSITY: Tapinekis Appeals Tuition Refund Suit Dismissal
PAPA MURPHY'S: Brown Granted Attys.' Fees, Expenses & Service Award
PLATINUM RESTAURANTS: Settlement Deal in Green Suit Wins Initial OK
PRESSED JUICERY: Judge Mueller Recuses Self From Brooks ADA Suit
QUALCOMM INC: 9th Cir. Affirms Dismissal of Class Action
QUALCOMM INC: Faces Consumer Suits in UK, Canadian, Israeli Courts
QUALCOMM INC: Faces Shareholder Suit in California Court
RANDALL MECHANICAL: Fixl Class Suit Seeks OT Wages Under FLSA
RANGE RESOURCES-APPALACHIA: Chow Appeals Ruling in Frederick Suit
RELIANT PRO: Underpays Physical Therapy Assistants, Kendall Says
RYDER SYSTEM: Faces Key West Securities Suit in Florida Court
SAAS LLC: Violates Wage & Hour Laws, Lucero Class Suit Alleges
SAMSUNG ELECTRONICS: Faces Jordan Suit Over Defective Refrigerators
SANMEDICA INT'L: Court Modifies Scheduling Order in Pizana Suit
SEZZLE INC: Sliwa Sues Over Deceptive Buy Now, Pay Later Service
SIGNATURE CLEANING: Violates FLSA, NYLL, Ramales Suit Alleges
SOUTH CAROLINA: Kerr Files Certiorari Petition in Edwards Suit
SPEEDUP 3: Lunsford Suit Seeks Unpaid Overtime Wages Under FLSA
STACY GARRITY: Dillow Files Suit in E.D. Pennsylvania
STATE FARM LIFE: Botte Sues Over Mismanagement of Insurance Plans
STATE STREET CORP: Faces ERISA Suit by Retirement Plan Customers
STATE STREET CORP: Faces Gomes ERISA Suit
SUNLANDS TECHNOLOGY: Faces Shareholder Suit in NY Court
TEMPLE PLAZA: Fails to Pay Proper Wages, Brandt Suit Alleges
TENNESSEE: Dismissal of McPeters' Claims v. Thomas' Bosses Upheld
TERREN PEIZER: Faces Aptor Shareholder Suit in California Court
TERREN PEIZER: Faces Vega Shareholder Suit in California Court
TRANSUNION DATA: Szewczyk Sues Over Incorrect Consumer Reports
TREVENA INC: Settles Consolidated Securities Suits
TREVENA INC: Settles Three Securities Suits in Pennsylvania
TRINITY INDUSTRIES: Faces Jackson County Suit over Faulty Guardrail
UNILEVER UNITED: Antiperspirant Deodorant Not Natural, Suit Alleges
UNITED BEHAVIORAL: Time to Complete Discovery Extended to August 22
UNITED STATES: Air Force Officer Granted Leave to File SAC
UNITED STATES: Casa Libre Seeks to Certify Rule 23 Class Action
VALVE CORP: Court Narrows Claims in Wolfire's 2nd Amended Complaint
VITAMIN SHOPPE: Ferrari Appeals Summary Judgment Ruling
WALMART INC: Russell Wage-and-Hour Suit Goes to C.D. California
WELLS FARGO: Court Dismisses Hawaii Employees' Retirement Suit
WELLS FARGO: Fyson Appeals Attorney Fees Ruling in Kang Suit
WEST VIRGINIA-AMERICAN: Jeffries Suit Over Water Service Ongoing
WINCO FOODS: Discovery & PTO Deadlines Extended in Miller Suit
XP POWER: Seeks to Seal Portions of Sur-Reply to CTU Injunction Bid
*********
3M COMPANY: Hamilton Consumer Suit Removed to E.D. Kentucky
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The case styled WILBURN HAMILTON, individually and on behalf of all
others similarly situated v. MINE SAFETY APPLIANCES COMPANY, LLC;
3M COMPANY f/k/a MINNESOTA MINING AND MANUFACTURING COMPANY;
AMERICAN OPTICAL CORPORATION; CABOT CSC LLC f/k/a CABOT SAFETY
CORPORATION; AEARO TECHNOLOGIES, LLC; KENTUCKY MINE SUPPLY COMPANY;
and MINE SERVICE COMPANY, INC., Case No. 22-CI-272, was removed
from the Pike County, Kentucky, Circuit Court, to the U.S. District
Court for the Eastern District of Kentucky on May 12, 2022.
The Clerk of Court for the Eastern District of Kentucky assigned
Case No. 7:22-cv-00044-DLB to the proceeding.
The case arises from the Defendants' alleged fraudulent practice of
manufacturing and selling respirators that failed to comply with
federal regulatory requirements.
Mine Safety Appliances Company, LLC is a manufacturer of safety
products, headquartered in Pennsylvania.
3M Company, formerly known as Minnesota Mining and Manufacturing
Company, is an American multinational conglomerate corporation
based in Minnesota.
American Optical Corporation is an eyewear manufacturer based in
Massachusetts.
Cabot CSC LLC, formerly known as Cabot Safety Corporation, is a
specialty chemicals company based in Massachusetts.
Aearo Technologies, LLC is an energy-control technology company
based in Indianapolis, Indiana.
Kentucky Mine Supply Company is a machinery equipment firm in
Harlan, Kentucky.
Mine Service Company, Inc. is a provider of mining equipment based
in Hazard, Kentucky. [BN]
The Defendant is represented by:
Bryant J. Spann, Esq.
Robert H. Akers, Esq.
THOMAS COMBS & SPANN
300 Summers Street, Suite 1380
Charlestown, WV 25301
Telephone: (304) 414-1800
Facsimile: (304) 414-1801
E-mail: BSpann@tcspllc.com
RAkers@tcspllc.com
- and –
Byron N. Miller, Esq.
Michael J. Bender, Esq.
734 West Main Street, Suite 400
Louisville, KY 40202
Telephone: (502) 585-9900
Facsimile: (502) 585-9993
E-mail: bmiller@tmslawplc.com
mbender@tmslawplc.com
ACELLA PHARMACEUTICALS: Faulkner Sues Over Sale of Defective Pills
------------------------------------------------------------------
SUE FAULKNER, individually and on behalf of all others similarly
situated, Plaintiff v. ACELLA PHARMACEUTICALS, LLC, Defendant, Case
No. 2:22-cv-00092-RWS (N.D. Ga., May 12, 2022) is a class action
against the Defendant for fraud, statutory strict liability,
negligence, breach of implied warranties, and violation of the
Racketeer Influenced and Corrupt Organizations Act.
The case arises from the Defendant's alleged false representations
of its thyroid medication, NP Thyroid pills, and its continued
distribution of the product despite receiving multiple citations
and a formal warning letter from the Food and Drug Administration
(FDA) for selling adulterated and unapproved drugs. As a result of
the Defendant's misconduct, the Plaintiff and similarly situated
consumers suffered damages by buying defective pills.
Acella Pharmaceuticals, LLC is a pharmaceutical company,
headquartered in Alpharetta, Georgia. [BN]
The Plaintiff is represented by:
Aaron K. Block, Esq.
Max Marks, Esq.
Allison Bailey, Esq.
THE BLOCK FIRM LLC
309 East Paces Ferry Road, Suite 400
Telephone: (404) 997-8419
E-mail: aaron@blockfirmllc.com
max.marks@blockfirmllc.com
allison.bailey@blockfirmllc.com
ACUITY REAL: Lewis Appeals Dismissal of Broker Referral Suit
------------------------------------------------------------
Plaintiff Coty Lewis filed an appeal from a court ruling entered in
the lawsuit entitled Coty Lewis, both individually and on behalf of
a class of similarly situated persons v. ACUITY REAL ESTATE
SERVICES, LLC d/b/a effectiveagents.com, a Florida limited
liability company, and KEVIN STUTEVILLE, individually, Case No.
1:21-cv-12319-TLL-PTM, in the United States District Court for the
Eastern District of Michigan at Bay City.
As reported in the Class Action Reporter on Oct. 6, 2021, the
lawsuit is brought with regards to the Defendants'
misrepresentative perversion of traditional broker-broker referral
relationship to consumers and real estate brokers and agents, and
places upward pressure on brokerage fees.
According to the complaint, an online real estate referral network
generally operates through a website directed at consumers
interested in purchasing or selling in a home. Acuity's website,
www.effectiveagents.com, is very typical for the industry. Acuity's
website purports to have a proprietary algorithm that analyzes
millions of real estate transactions and realtor reviews to provide
consumers with the perfect realtor for their specific transaction.
The website further claims to have analyzed over 1.5 million
realtors from which it "hand-picked" a small group of realtors who
then further underwent a "rigorous approval process." These "top
talent" realtors, it is claimed, will offer "unbiased advice" at
"no cost" to the consumer.
The website promises to consumers that it has "better research"
which will result in a pairing with "an exact, perfect fit" and
"your own local expert" resulting in faster sales for more money.
All a consumer need do to get this "free" assistance is fill out an
online form.
On September 1, 2021, a website visitor expressed an interest in
selling the Saginaw County Courthouse. The website indicated that
it has "good news" as there are 389 local realtors who are
interested in helping. Acuity does not--as it purports to
do--conduct some meaningful mathematical analysis of the total 389
realtors it states conduct business in the local market. Instead,
Acuity primarily, or even only, refers consumers to real estate
agents who have agreed to pay Acuity a percentage-based referral
fee, says the complaint.
A recent transaction between Acuity and Lewis illustrates this
business model and the harm it causes to Lewis, real estate agents,
consumers, and the real estate market. The brokerage company of
which Lewis was a member of, Re/Max New Image, entered into a
referral agreement with Acuity in 2019. Through that agreement,
Acuity, whom is a licensed real estate broker in the State of
Florida, and not Michigan, set the terms upon which it would refer
its clients interested in selling or purchasing a home. The
referral agreement was a blanket referral agreement not only
covering all future referrals but all future transactions involving
each referred client. In the most material part, and as a condition
of referral, Acuity required payment of 35% of the sales commission
received by Lewis' brokerage in connection with any transaction
closed for a referred client.
Acuity failed to disclose to Lewis or Lewis' brokerage that it does
not actually have any "clients" insofar as that term is used to
describe a broker-client relationship. The Defendant does not have
a brokerage-client relationship with consumers visiting its website
at all. It does not know them, has little to no communication with
them, and has no responsibility to them. In short, it disclaims all
of the fiduciary responsibilities associated with a broker-client
relationship.
Acuity's deception is therefore two-fold. First, Acuity deceives
consumers into inputting contact information into its webform on
the representation that it is performing some sophisticated math
analysis of all local realtors. Although it repeatedly tells
consumers that its service is free to them, in reality they are
paying Acuity 35% of their agent fee. Second, Acuity deceives real
estate brokers and agents by representing that it has professional
"clients" when it in fact has none. Instead, Acuity it is simply
targeting local consumers on the internet and routing them back to
local agents in exchange for a substantial share of professional
fees, says the complaint.
On December 17, 2021, the Defendants filed a motion to dismiss the
case under the Federal Rule of Civil Procedure 12(b)(6) which the
Court granted on April 6, 2022, through an Opinion and Order signed
by District Judge Thomas L. Ludington.
The Plaintiff seeks a review of the case dismissal order.
The appellate case is captioned as Coty Lewis v. Acuity Real Estate
Services, LLC, et al., Case No. 22-1406, in the United States Court
of Appeals for the Sixth Circuit, filed on May 6, 2022.[BN]
Plaintiff-Appellant COTY LEWIS, individually and on behalf of a
class of similarly situated persons, is represented by:
Matthew Edwin Gronda, Esq.
MATTHEW E. GRONDA, J.D., P.L.C.
P.O. Box 70
St. Charles, MI 48655
Telephone: (989) 249-0350
E-mail: matt@matthewgronda.com
Defendants-Appellees ACUITY REAL ESTATE SERVICES, LLC and KEVIN
STUTEVILLE are represented by:
Janette E. Frank, Esq.
SCHIER, DENEWETH & PARFITT
888 W. Big Beaver Road, Suite 610
Troy, MI 48084-0000
Telephone: (248) 362-5600
E-mail: janfrank@frankandfranklaw.com
ADAIR GROUP: Lawal Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against The Adair Group LLC.
The case is styled as Rafia Lawal, on behalf of herself and all
others similarly situated v. The Adair Group LLC, Case No.
1:22-cv-03902 (S.D.N.Y., May 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Adair Group -- https://www.theadairgroup.com/ -- is a family
owned business and have been selling wholesale t-shirts in Atlanta
and throughout the country for over 50 years.[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Phone: (845) 367-7146
Fax: (732) 298-6256
Email: yzelman@marcuszelman.com
AEGIS SENIOR: N.D. California Denies Salonga's Bid to Remand Suit
-----------------------------------------------------------------
In the case, ANDREA SALONGA, individually and on behalf of all
others similarly situated, Plaintiff v. AEGIS SENIOR COMMUNITIES,
LLC, and Does 1 through 20, inclusive, Defendants, Case No.
22-cv-00525-LB (N.D. Cal.), Magistrate Judge Laurel Beeler of the
U.S. District Court for the Northern District of California, San
Francisco Division, denies the Plaintiff's motion to remand.
I. Introduction
The Plaintiff, Andrea Salonga, filed the wage-and-hour class-action
complaint in California state court. The Defendant, Aegis, removed
the case to federal court under the Class Action Fairness Act
(CAFA). Contending that the Defendant did not establish that the
amount in controversy exceeds the CAFA threshold of $5 million, the
Plaintiff moved to remand the case to state court. In response, the
Defendant -- based on declarations from its Chief Financial Officer
and a consultant with expertise in data analytics -- calculated
potential damages of $13,847,446 to $30,124,183.
II. Background
The Plaintiff filed this employment class action in Alameda County
Superior Court in November 2021. The complaint has seven claims
against the Defendant, an operator of assisted-living facilities,
for violating the following: (1) California Labor Code Sections
1182.12, 1194, 1194.2, 1197 (minimum wage); (2) California Labor
Code Sections 510, 1194, 1198 (overtime); (3) California Labor Code
Sections 226.7, 512 (meal periods); (4) California Labor Code
Section 226.7 (rest breaks); (5) California Labor Code Sections
2800, 2802 (business-expense reimbursement); (6) California Labor
Code Section 226 (accurate wage statements); (7) California Labor
Code Sections 201, 202, 203 (wages due on separation); and (8)
California Business and Professions Code Sections 17200, et seq.
(unfair business practices). The Defendant removed the case to
federal court under CAFA 30 days after it was served.
The Plaintiff moved to remand, arguing that the Defendant failed to
establish that the amount in controversy exceeds $5 million. In
response, the Defendant submitted declaration from Levon Massmanian
(a consultant with a degree in economics and experience performing
data analysis) and Amy Nelson (the Defendant's Chief Financial
Officer) to support its removal.
Ms. Nelson collected payroll data for the Defendant's nonexempt
employees from between May 20, 2017, and March 2022 and provided
that data to defense counsel. Mr. Massmanian reviewed and analyzed
the data and estimated the possible damages for the Plaintiff's
claims.11 Because some claims involve uncertain variables that
affect damages (e.g., the percentage of shifts where an employee
was improperly denied a rest break), Mr. Massmanian arrived at a
range for the amount in controversy: $13,847,446 to $30,124,183.
The Plaintiff has not produced any evidence refuting the
Defendant's estimate but challenges its assumptions and the
adequacy of the Defendant's evidence.
The parties consented to magistrate-judge jurisdiction under 28
U.S.C. Section 636(c). The Court held a hearing on May 5, 2022.
III. Analysis
The parties do not dispute that the class includes 100 or more
putative class members or that minimal diversity exists. The only
issue is whether the Defendant has established that the amount in
controversy meets the jurisdictional threshold for removal under
CAFA.
Judge Beeler finds that the Defendant has established that the
possible waiting-time damages amount to at least $5,266,800, an
amount above the jurisdictional threshold. Nonetheless, she
considers the next highest valued claim, the wage-statement claim,
to further evaluate the amount in controversy.
She finds that by applying the statutory maximum to the actual
number of nonexempt employees and the number of pay periods during
the relevant time, the defendant has established that the possible
damages for the wage-statement claim are $3,958,850. The potential
meal-and-rest-period liability totals $3,902,828 ($682,145 plus
$3,220,683).
Finally, the Defendant's estimate of the waiting-time and
wage-statement penalties is supported by summary-judgment-type
evidence in the form of two declarations and the estimate equals an
amount that is more than the jurisdictional minimum. Furthermore,
even if the waiting-time and wage-statement claims are reduced by
75% to account for the 25% violation rate applied by some courts
(e.g., Ramirez), that would not reduce the amount in controversy to
$5 million or less.
For example, 25% of the waiting-time penalties is $1,316,700 (.25 x
$5,266,800) and 25% of the wage-statement penalties is $989,712.50
(.25 x $3,958,850). Adding the rest-break and meal-break liability
to these amounts yields $6,209,240.50, still well in excess of the
jurisdictional minimum. The Defendant has met its burden and it is
unnecessary to consider the potential damages on the Plaintiff's
other four claims or the potentially recoverable attorney's fees.
IV. Order
The Defendant has demonstrated with summary-judgment-type evidence
that the potential damages for the waiting-time, wage-statement,
and meal-and-rest-period claims exceed $5 million and thus has
satisfied CAFA jurisdiction. Judge Beeler denies the Plaintiff's
motion to remand.
The Order disposes of ECF No. 19.
A full-text copy of the Court's May 6, 2022 Order is available at
https://tinyurl.com/3v78rv8z from Leagle.com.
AETNA HEALTH: Saloojas Sues Over COVID Health Emergency Fraud
-------------------------------------------------------------
SALOOJAS INC v. AETNA HEALTH OF CALIFORNIA, INC., Case No.
5:22-cv-02887 (N.D. Cal.) is brought on behalf of the Plaintiff and
all others similarly situated alleging that Aetna has unjustifiably
engaged in unconscionable and fraudulent conduct during the
COVID-public health emergency period in order to evade and
circumvent its obligations to fully cover all Aetna Plan members'
COVID-19 diagnostic testing ("Covid Testing") services and to
reimburse Plaintiff, an out-of-network ("OON") laboratory, for
bonafide Covid Testing services offered to these same members in
accordance with a Congressionally set methodology established and
supported by the Families First Coronavirus Response Act (the
"FFCRA"), the Coronavirus Aid, Relief, Economic Security Act (the
"CARES Act").
The importance of Covid Testing during a worldwide pandemic cannot
be overlooked as it is the best mitigation mechanism in place to
identify and curtail the spread of the COVID-19 virus. Due to the
urgent need to facilitate the nation's response to the public
health emergency posed by COVID-19, Congress passed the FFCRA and
the CARES Act to, amongst other things, address issues pertaining
to the costs of and access to Covid Testing during the COVID-19
pandemic.
Aetna's alleged conduct (or lack thereof as it pertains to the
Employer Plans) has undermined national efforts made to mitigate
the spread of the COVID-19 virus as it has caused Plaintiff, and
other similarly situated OON providers, to shutter specimen
collection and testing locations and to potentially stop offering
Covid Testing services altogether. Aetna's misprocessing and
denials of Covid Testing claims is nearing an insurmountable
inancial loss for Plaintiff and has caused Plaintiff to hemorrhage
its own funds to cover such inancial losses, the lawsuit says.
Aetna has not only mis-adjudicated almost every single Covid
Testing claim submitted by Plaintiff on behalf of members of Aetna
Plans and Employer Plans administered by Aetna, but has, in fact,
denied the vast majority of Covid Testing claims that the Plaintiff
has submitted, the reasons for which are to be detailed throughout
the course of this Original Complaint, the suit added.[BN]
The Plaintiff is represented by:
Michael Lynn Gabriel, Esq.
LAW OFFICE OF MICHAEL LYNN GABRIEL
5763 Stevenson Blvd
Newark, CA 94560
Telephone: (650) 888-9189
Facsimile: (510) 656-5700
E-mail: aetal@earthlink.net
migabriel@saloojasinc.com
ALCONE COMPANY: Hanyzkiewicz Files ADA Suit in E.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Alcone Company, Inc.
The case is styled as Marta Hanyzkiewicz, on behalf of herself and
all others similarly situated v. Alcone Company, Inc., Case No.
1:22-cv-02810 (E.D.N.Y., May 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Alcone Company, Inc. -- https://alconemakeup.com/ -- retails
personal care products. The Company offers makeup foundations,
brushes, tools, and sun protection products.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
ALPHA 1 MARKETING: Dawkins Files ADA Suit in E.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Alpha 1 Marketing,
Corp. The case is styled as Elbert Dawkins, on behalf of himself
and all others similarly situated v. Alpha 1 Marketing, Corp., Case
No. 1:22-cv-02818 (E.D.N.Y., May 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Alpha 1 Marketing -- https://www.alpha1marketing.com/ -- is a full
service merchandising and marketing company providing retail
services to independent grocery store owners.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
AMERICOLD LOGISTICS: Remand of Bridgewater to State Court Denied
----------------------------------------------------------------
In the case, RICHARD BRIDGEWATER, individually, and on behalf of
all similarly situated individuals, Plaintiff v. AMERICOLD
LOGISTICS, LLC, a Delaware limited liability company, Defendant,
Case No. 21-1348 (C.D. Ill.), Judge Michael M. Mihm of the U.S.
District Court for the Central District of Illinois, Peoria
Division, denied Bridgewater's Motion to Remand to State Court.
I. Background
Plaintiff Bridgewater initially filed the putative class action in
Illinois state court. The Plaintiff claims that due to lax
cybersecurity procedures, hackers were able to obtain access to his
and other employees' personal identifying information. The
Plaintiff brings various claims under Illinois state law due to the
breach.
The Defendant removed the case to federal court under the Class
Action Fairness Act of 2005 ("CAFA"). 28 U.S.C. Section 1332(d).
Shortly after removing the case, the Defendant filed a motion to
dismiss for failure to state a claim. In support of that motion, it
claims that the Plaintiff only asserted damages that are a
"speculative risk of future injury and time and effort spent to
guard against that hypothetical risk, which are insufficient to
support a claim under Illinois law."
In response, the Plaintiff moved to remand the case, claiming that
the Defendant failed to establish that he has Article III standing
under the Constitution. He cites the Defendant's argument regarding
the Plaintiff's lack of cognizable damages under Illinois law as
support for this argument. The Plaintiff does not deny that the
case meets the other requirements of CAFA. He also does not
directly assert that he lacks Article III standing but claims that
the Defendant failed to establish standing. Accordingly, the
Plaintiff argues that the Court must remand the case to state court
because it lacks subject matter jurisdiction.
II. Discussion
The Plaintiff argues that the case must be remanded because the
Defendant claims in its Motion to Dismiss that the Plaintiff did
not allege cognizable damages under the relevant state laws, which
he interprets to mean that Defendant is arguing that he lacks
Article III standing. The Plaintiff does not argue that the
Defendant failed to meet the other requirements for CAFA removal.
Indeed, the Defendant observes that the Plaintiff alleges the
attack impacted as many as 140,000 people which would mean each
class member would only need $35.71 in damages to meet the
five-million-dollar jurisdictional minimum. Accordingly, the
Plaintiff's only argument focuses on Defendant's alleged failure to
plead that he has Article III standing.
The Defendant argues that the Plaintiff sufficiently alleged
Article III standing in his Complaint under Seventh Circuit
precedent. It also argues that it did not have to specifically
plead Article III standing in its Notice of Removal.
Judge Mihm agrees with the Defendant that Article III standing is
often a lower threshold than proving damages as an element of a
claim and that the Plaintiff meets the minimum requirements for
Article III standing.
First, he agrees that the record before the Court establishes that
the Plaintiff sufficiently pleaded an injury-in-fact to support
Article III standing. Second, he is persuaded that the Plaintiff
sufficiently alleges that he suffered a concrete injury to
establish Article III standing. Lastly, he opines that the
Defendant did not succeed in persuading another court to accept its
position that Plaintiff lacked standing, and he is persuaded that
the Defendant had reason to believe that the standards in the
Seventh Circuit and Eleventh Circuit may differ. It would not be
appropriate to apply this doctrine in the case and the Plaintiff
does not suggest that there is another doctrine that would prevent
the Court from considering the Defendant's argument on the issue of
standing.
III. Conclusion
For the reasons he stated, Judge Mihm denied the Defendant's Motion
to Remand. The Plaintiff failed to timely respond to the
Defendant's Motion to Dismiss, and instead, on the date his
response was due, he filed a motion to stay or in the alternative,
extend his deadline to respond. Judge Mihm granted in part and
denied in part the Plaintiff's Motion to Stay Briefing and ordered
the Plaintiff to respond to the Defendant's Motion to Dismiss.
A full-text copy of the Court's May 6, 2022 Order & Opinion is
available at https://tinyurl.com/4wyupf52 from Leagle.com.
ANTHEM COMPANIES: Faces Fillipo FLSA Suit Over Unpaid Overtime
--------------------------------------------------------------
LITA FILLIPO, and TIMOTHY KRAFT, individually and on behalf of all
others similarly situated, Plaintiffs v. THE ANTHEM COMPANIES,
INC., Defendant, Case No. 1:22-cv-00926-JRS-MPB (S.D. Ind., May 12,
2022) is a class action against the Defendant for its failure to
compensate the Plaintiffs and similarly situated salespersons
overtime pay for all hours worked in excess of 40 hours in a
workweek in violation of the Fair Labor Standards Act and
applicable state wage and hour laws.
Plaintiffs Fillipo and Kraft worked for the Defendant from their
home offices as salespersons from August 9, 2021 until November 16,
2021 and from September of 2018 until August of 2021,
respectively.
The Anthem Companies, Inc. is an operator of a healthcare
enterprise, with its principal executive office located at 120
Monument Circle, Indianapolis, Indiana. [BN]
The Plaintiffs are represented by:
C.K. Lee, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, Eighth Floor
New York, NY 10011
Telephone: (212) 465-1188
Facsimile: (212) 465-1181
ANTONELLI'S CHEESE: Chalas Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Antonelli's Cheese,
L.L.C. The case is styled as Ana Chalas, individually, and on
behalf of all others similarly situated v. Antonelli's Cheese,
L.L.C., Case No. 1:22-cv-03919 (S.D.N.Y., May 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Antonelli's Cheese -- https://www.antonellischeese.com/ -- is a
snug market with artisanal cheeses, cured meats, bread & sundries,
plus wine & craft beers.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
APPLE INC: California Court Grants Bid to Dismiss Rutter Class Suit
-------------------------------------------------------------------
In the case, WILLIAM RUTTER, et al., Plaintiffs v. APPLE INC.,
Defendant, Case No. 21-cv-04077-HSG (N.D. Cal.), Judge Haywood S.
Gilliam, Jr. of the U.S. District Court for the Northern District
of California granted Apple's motion to dismiss.
I. Background
The putative class action lawsuit alleges that Defendant Apple
deceives consumers into paying for its "iCloud" subscription
service. iCloud enables users to store their data -- like pictures,
contacts, and files -- on an internet-based platform. While users
can store their first 5GB of data for free, they must pay varying
monthly rates to store additional data.
The Amended Complaint alleges that Apple deceives consumers into
buying products that use iCloud and ultimately misrepresents the
cost of iCloud by leading consumers to believe that they can easily
maintain their data for free. In reality, Plaintiffs allege, iCloud
users quickly exceed the free 5GB of storage and then must pay for
an increasingly costly service.
Based on those allegations, the Plaintiffs allege that Apple
violated California's Automatic Renewal Law and bring claims under
California's consumer protection statutes. They also bring two
claims for breach of contract and one for elder abuse.
Before the Court is Apple's motion to dismiss, which is fully
briefed. Judge Gilliam finds the matter appropriate for disposition
without oral argument.
II. Discussion
Apple moves to dismiss the Amended Complaint in its entirety. It
first contends that the Plaintiffs do not have standing to file
suit because they have failed to allege an appropriate injury. It
then argues that the Amended Complaint fails to state plausible
grounds for relief under Rules 8 and 9 of the Federal Rules of
Civil Procedure. Judge Gilliam finds that the Plaintiffs have
adequately alleged the elements of Article III standing but have
not pled any plausible claims.
A. Request for Judicial Notice
As an initial matter, Apple asks the Court to take judicial notice
of documents it characterizes as follows: (i) Apple's iCloud Terms
and Conditions, last revised Sept. 19, 2019; (ii) Apple's iCloud
"Information" webpage; (iii) the email notification Apple provides
to users who are approaching the capacity of C the 5GB of free
iCloud storage (the "iCloud Capacity Email"); (iv) the email
receipt from Apple confirming payment for iCloud storage above 5GB;
(v) the Apple Support page for iCloud entitled "Manage your iCloud
storage" ("iCloud E Support: Manage Storage"); (vi) the Apple
"Billing and Subscriptions" webpage; and (vii) the Apple Support
webpage for iCloud entitled "Downgrade or cancel your iCloud
storage plan." The Plaintiffs have not opposed Apple's request or
otherwise contested the authenticity of any of those documents.
Judge Gilliam finds that Apple's iCloud Terms and Conditions are
properly subject to incorporation by reference for two reasons.
First, the Amended Complaint expressly and extensively references
and quotes them. And second, the Plaintiffs' two claims for breach
of contract are based on the iCloud Terms and Conditions. Apple's
request is therefore granted as to that document.
Judge Gilliam also agrees that the Amended Complaint references
Apple's emails and webpages extensively and that Apple's
representations in those documents (or lack thereof) form the bases
for the Plaintiffs' ARL, breach of contract, and consumer
protection claims While these documents may be properly
incorporated by reference, however, Apple ultimately seeks to use
them to contest the Amended Complaint's factual allegations. In
Judge Gilliam's view, this is an improper attempt to effectively
convert the motion to dismiss into one for summary judgment. He
therefore does not find Apple's emails and webpages necessary or
helpful at this stage in the litigation and does not rely on them
in resolving the questions of law that Apple's motion raises.
B. Standing
Apple contends that the Plaintiffs lack standing under Article III
of the U.S. Constitution and California's consumer protection
statutes.
Judge Gilliam disagrees and finds that the Plaintiffs have
plausibly alleged standing to pursue each of their claims. He finds
that the Plaintiffs have met their burden of alleging the elements
of standing under Article III and California's consumer protection
statutes. The Amended Complaint pleads an "injury in fact" and an
"economic injury" by alleging that at least some plaintiffs lost
money paying for varying levels of an iCloud subscription. Because
the named Plaintiffs who have suffered a monetary injury have
Article III and statutory standing, Judge Gilliam denies Apple's
motion to dismiss on standing grounds.
C. Automatic Renewal Law
The Plaintiffs' first five claims are based on allegations that
Apple violated California's Automatic Renewal Law ("ARL"). The ARL
exists to protect consumers from unwittingly consenting to services
that continue until the consumer cancels or automatically renew at
the end of a term. No one disputes that iCloud is both an
"automatic renewal" and a "continuous service" offering under the
ARL because it automatically charges customers each month after
they sign up for additional storage and continues to do so until
they cancel.
The Amended Complaint alleges that Apple violated the ARL in five
(overlapping) claims. Apple argues that each one fails to state a
claim under Rule 12(b)(6).
Judge Gilliam agrees with Apple. He holds that all the ARL claims
are inadequately pled. The Plaintiffs may amend their ARL claims to
explain: (1) why iCloud users who chose to upgrade their storage
did not consent to the iCloud Terms and Conditions; (2) why the
cancellation policy and mechanism provided in the iCloud Terms and
Conditions are not stated in clear and conspicuous terms as
required by Section 17602(a)(1) (and why Plaintiffs have standing
to pursue this claim); and (3) why iCloud's cancellation terms are
not capable of being retained by consumers as required by Section
17602(a)(3).
D. Contract Claims
Apple also moves to dismiss the Plaintiffs' breach of contract and
unconscionability claims under Rule 12(b)(6).
Judge Gilliam agrees with Apple that these claims are inadequately
pled. The Plaintiffs' claim for breach of the implied covenant
fails for the same reason. Implied covenants exist to protect
express contractual provisions, and the Amended Complaint has
failed to identify any. If possible, the Plaintiffs may amend their
breach of contract claims to identify where Apple makes the alleged
representations.
The Plaintiffs' unconscionability claim similarly fails and is
dismissed because it barely addresses the substantive element and
does not address the procedural element at all. Although the Court
is skeptical that Apple's iCloud Terms and Conditions impose
substantively or procedurally unconscionable terms based on the
facts alleged, the Plaintiffs are nonetheless given leave to
amend.
E. Consumer Protection Claims
The Complaint also brings claims under California's consumer
protection statutes. Apple contends that these claims sound in
fraud and fail to meet the particularity standards of Rule 9(b).
Judge Gilliam finds that these claims are duplicative and redundant
and will accordingly analyze them together. He finds that all of
the Plaintiffs' consumer protection claims are based on Apple's
alleged misrepresentations. For example, the UCL and FAL claims
allege that Apple "lures customers into paying for iCloud" by
misrepresenting that "5GB of iCloud storage is a huge amount of
storage that never goes away." Similarly, the CLRA claims allege
that Apple "suggests consumers would not need more than the 5GB"
and thus, falsely advertised the iCloud service and intended "not
to sell it as advertised."
The problem with these claims is that the Amended Complaint
entirely fails to allege where or when Apple in any way indicated
that consumers will require more or less than 5GB of data storage.
They are therefore not pled with the particularity required to put
Apple on notice of the allegations against it and are dismissed
with leave to amend.
III. Conclusion
Judge Gilliam granted Apple's motion. The Plaintiff may file an
amended complaint within 21 days of the Order but may not add any
new claims or Defendants.
A full-text copy of the Court's May 6, 2022 Order is available at
https://tinyurl.com/mrycfjwk from Leagle.com.
AR RESOURCES: Fulop Files FDCPA Suit in E.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against AR Resources, Inc.
The case is styled as Chany Fulop, individually and on behalf of
all others similarly situated v. AR Resources, Inc., Case No.
1:22-cv-02872 (E.D.N.Y., May 17, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
AR Resources -- http://arresources.net/-- is a full-service
receivable management and collection company serving creditors
throughout the United States.[BN]
The Plaintiff is represented by:
Christofer Merritt, Esq.
STEIN SAKS LLC
1 University Plaza, Suite 620
Hackensack, NJ 07601
Phone: (540) 907-8248
Email: cmerritt@SteinSaksLegal.com
ARIZONA: Order for Gov.'s Office to Produce Docs to Toomey Affirmed
-------------------------------------------------------------------
In the case, Russell B Toomey, Plaintiff v. State of Arizona, et
al., Defendants, Case No. CV-19-00035-TUC-RM (LAB) (D. Ariz.),
Judge Rosemary Marquez of the U.S. District Court for the District
of Arizona denies the Office of Governor Douglas A. Ducey's Appeal
of Magistrate Judge Leslie A. Bowman's Order granting the
Plaintiff's Motion to Compel Production of Documents from the
Governor's Office, and affirms Magistrate Judge Bowman's Order.
I. Background
Plaintiff Toomey is a transgender male who is employed as an
Associate Professor at the University of Arizona. His health
insurance -- a self-funded plan controlled by the Arizona
Department of Administration ("ADOA") -- categorically excludes
"gender reassignment surgery" from coverage.
The Plaintiff brings the class action lawsuit alleging that the
exclusion of gender reassignment surgery is sex discrimination
under Title VII of the Civil Rights Act and a violation of the
Fourteenth Amendment Equal Protection Clause. One of the disputed
factual questions in the case is "whether the decision to exclude
gender reassignment surgery in the Plan was actually motivated by a
legitimate governmental interest."
On Feb. 17, 2021, Toomey served on the Governor's Office a subpoena
"seeking documents and information regarding surgery to treat
gender dysphoria, including insurance coverage for such surgeries
in health insurance plans administered by the Arizona Department of
Administration, Medicaid, Medicare and any other government health
care program." The Governor's Office produced some documents but
withheld others. The Plaintiff's Motion to Compel seeks production
of 17 of those withheld documents.
On Sept. 21, 2021, the Court issued an Order directing Defendants
State of Arizona, Andy Tobin, and Paul Shannon (the "State
Defendants") to produce "all documents related to the Defendants'
decision-making regarding the exclusion of coverage for gender
reassignment surgery as requested in the Plaintiff's Requests for
Production One, Three, and Nine, including legal advice that may
have informed that decision-making." The State Defendants
petitioned the Ninth Circuit Court of Appeals for a writ of
mandamus regarding that Order; the petition for writ of mandamus is
currently pending before that court. The Court temporarily stayed
its Sept. 21, 2021 Order pending resolution of the petition for
writ of mandamus.
Pending before the Court is the Governor's Office's Appeal of
Magistrate Bowman's Order granting the Plaintiff's Motion to
Compel. The Plaintiff responded to the Appeal.
II. Analysis
In her Order granting the Plaintiff's Motion to Compel, Magistrate
Judge Bowman finds that the withheld documents are relevant to the
issue of the intent underlying the Exclusion and that neither the
executive communications privilege nor the deliberative process
privilege precludes their disclosure. In reaching this conclusion,
the Order highlights the evidence uncovered by the Plaintiff in the
course of discovery that the Arizona Department of Administration
considered removing the Exclusion in 2016 and that the Governor's
Office "played a key role in State Defendants' decision to maintain
the exclusion."
On appeal, the Governor's Office objects to the Order on four
grounds. First, the Governor's Office argues that the Order
"misconstrues the scope of the Subpoena at issue" and that this
misinterpretation underlies the Order's incorrect findings
regarding relevancy and privilege application, essentially arguing
that the contested documents are not relevant because the subpoena
in response to which the documents were produced was overly broad.
Second, the Governor's Office argues that the Order erred in
rejecting the executive communications privilege because (1) public
policy supports the application of the privilege and (2) district
courts have applied the privilege to state executive officers.
Third, the Governor's Office argues that the Order's application of
the Warner factors was erroneous. Fourth, the Governor's Office
argues that the Magistrate Judge should conduct an in camera review
of the documents to discern their relevance before potentially
ordering their disclosure.
Judge Ducey affirms Magistrate Judge Bowman's Order compelling
production of the withheld documents. He holds that the contested
documents are relevant and neither the executive communications
privilege nor the deliberative process privilege precludes their
disclosure.
The Governor's Office's focus on the scope of the subpoena is
misplaced. At issue is not the scope of the subpoena, but the
discoverability of the 17 documents the Governor's Office is
withholding. Regardless of the breadth of the subpoena, the
Plaintiff seeks in his Motion to Compel production only of 17
particular documents, and Judge Ducey is satisfied that those
documents are relevant to the key issue of the intent underlying
the decision to maintain the Exclusion. The Plaintiff has uncovered
evidence that the Governor's Office played a role in Defendants'
decision to maintain the Exclusion. It is reasonable to conclude
that the documents might address the issue of whether the
Defendants, with input from the Governor's Office, intentionally
discriminated against transgender individuals in maintaining the
Exclusion. The documents need not relate solely to the Exclusion to
be relevant because they may reveal a pattern of discriminatory
animus by the Defendants.
The executive communications privilege does not preclude the
discoverability of the documents, Judge Ducey holds. He says, the
Governor's Office has not presented a compelling reason to extend
the privilege to state governors and, in the absence of controlling
Ninth Circuit Court of Appeals authority mandating that it does so,
Judge Ducey declines to so extend it.
Nor does the deliberative process privilege preclude
discoverability. In weighing the four Warner factors, Judge Ducey
finds as to the first factor that the documents are relevant. As to
the second factor, the Plaintiff does not have other readily
available evidence that addresses the issue of the Governor's
Office's role in the State Defendants' decision to maintain the
Exclusion. Although the Plaintiff may have other evidence relating
to the State Defendants' motivation behind the decision to maintain
the Exclusion, that evidence has not yet been disclosed.
Additionally, the documents at issue are the only evidence the
Plaintiff has of the Governor's Office's role in the decision.
Thus, the second factor weighs in favor of disclosure.
As to the third factor, it too favors disclosure because the
Governor's Office was involved in the decision to maintain the
Exclusion. As to the fourth factor, "the extent to which disclosure
would hinder frank and independent discussion regarding
contemplated policies and decisions," Judge Ducey finds that
although disclosure may have such an effect, this possibility is
not sufficient to outweigh Plaintiff's need for the documents, the
need for accurate fact-finding, and the weight of the first three
Warner factors. Furthermore, as Magistrate Judge Bowman concluded,
Arizona has a policy that favors public disclosure of government
records, including those relating to policy making. Accordingly,
the deliberative process privilege does not preclude disclosure.
Lastly, Judge Ducey declines to grant the Governor's Office's
request for an in camera review of the documents prior to their
disclosure.
III. Conclusion
Accordingly, Judge Ducey denies the Governor's Office Appeal of
Magistrate Judge Bowman's Order. He affirms Magistrate Judge
Bowman's Order granting the Plaintiff's Motion to Compel.
Within 14 days of the date of the Order, the Governor's Office will
produce the 17 documents that are the subject of the Motion to
Compel.
A full-text copy of the Court's May 6, 2022 Order is available at
https://tinyurl.com/mrythwue from Leagle.com.
ARRIVAL SA: Schmutter Files Voluntary Dismissal of Class Action
---------------------------------------------------------------
Arrival disclosed in its Form 20-F Report for the fiscal year ended
December 31, 2021, filed with the Securities and Exchange
Commission on April 27, 2022, that a voluntary dismissal was filed
in March 2022 for a class action lawsuit filed against the company
alleging that defendants made false and/or misleading statements or
omissions concerning Arrival's operations.
On December 22, 2021, plaintiffs Bruce Schmutter and Dean Samet,
purported Arrival stockholders, filed a putative class action
complaint against Arrival, Denis Sverdlov, Tim Holbrow, Michael
Ableson, and Avinash Rugoobur in the U.S. District Court for the
Southern District of New York captioned "Schmutter, et al. v.
Arrival S.A., et al.," Case No. 1:21-11016-NRB.
Plaintiffs asserted claims on behalf of all persons and entities
that purchased or otherwise acquired Arrival common stock between
November 18, 2020 and November 19, 2021 under Section 10(b) and
20(a) of the Securities Exchange Act of 1934.
The complaint alleged that defendants made false and/or misleading
statements or omissions concerning Arrival's operations, financial
performance, and future growth prospects and profitability. On
March 7, 2022, plaintiffs filed a notice of voluntary dismissal of
the Schmutter action.
Arrival designs, assembles and distributes commercial electrical
vehicles based in Grand Duchy of Luxembourg.
ASH & ERIE INC: Maddy Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Ash & Erie, Inc. The
case is styled as Veronica Maddy, on behalf of herself and all
others similarly situated v. Ash & Erie, Inc., Case No.
1:22-cv-03936 (S.D.N.Y., May 14, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Ash & Erie -- https://ashanderie.com/ -- is an apparel company that
designs, manufactures, and sells everyday clothes for shorter
guys.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
ASPEN GROUP: Stewart Suit Removed to D. Arizona
-----------------------------------------------
The case styled as Kristen Stewart, individually and on behalf of
all others similarly situated v. Aspen Group Incorporated, Aspen
University Incorporated, Case No. CV2022-004347 was removed from
the Maricopa County Superior Court, to the U.S. District Court for
the District of Arizona on May 11, 2022.
The District Court Clerk assigned Case No. 2:22-cv-00818-CDB to the
proceeding.
The nature of suit is stated as Other Fraud.
Aspen Group, Inc. -- https://www.aspu.com/ -- is an education
technology holding company.[BN]
The Plaintiff is represented by:
Andrew S. Friedman, Esq.
Francis Joseph Balint, Jr., Esq.
BONNETT FAIRBOURN FRIEDMAN & BALINT PC - PHOENIX, AZ
2325 E Camelback Rd., Ste. 300
Phoenix, AZ 85016
Phone: (602) 776-5902
Fax: (602) 274-1199
Email: afriedman@bffb.com
fbalint@bffb.com
- and -
Donald Wayne Bivens, Esq.
SNELL & WILMER LLP - PHOENIX, AZ
1 Arizona Center
400 E Van Buren St., Ste. 1900
Phoenix, AZ 85004-2202
Phone: (602) 382-6549
Fax: (602) 382-6070
Email: don@donbivens.com
- and -
William Fleming King, Esq.
GALLAGHER & KENNEDY PA
2575 E Camelback Rd., Ste. 1100
Phoenix, AZ 85016-9225
Phone: (602) 530-8000
Email: bill.king@gknet.com
The Defendants are represented by:
Charles Michael Callahan, Esq.
Robert R Berk, Esq.
JONES SKELTON & HOCHULI PLC
40 N Central Ave., Ste. 2700
Phoenix, AZ 85004
Phone: (602) 263-7392
Email: ccallahan@jshfirm.com
Rberk@jshfirm.com
AXSOME THERAPEUTICS: Faces Gru Class Suit Over Stock Price Drop
---------------------------------------------------------------
EVY GRU, Individually and on Behalf of All Others Similarly
Situated v. AXSOME THERAPEUTICS, INC., HERRIOT TABUTEAU, NICK
PIZZIE, MARK , CEDRIC O'GORMAN, and KEVIN LALIBERTE, Case No.
1:22-cv-03925 (S.D.N.Y., May 13, 2022) is a federal securities
class action on behalf of a class consisting of all persons and
entities other than the Defendants that purchased or otherwise
acquired Axsome securities between December 30, 2019 and April 22,
2022, both dates inclusive, seeking to recover damages caused by
the Defendants' violations of the federal securities laws and to
pursue remedies under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, against the Company and certain of its top
officials.
Axsome consistently touted AXS-07's regulatory and commercial
prospects in anticipation of the Company's submission a New Drug
Application ("NDA") to the U.S. Food and Drug Administration
("FDA") for AXS-07 for the acute treatment of migraine (the "AXS-07
NDA") based on the drug's positive results in two Phase 3 trials.
However, unbeknownst to investors, the Company's preparation and
eventual submission of the AXS-07 NDA was plagued with chemistry,
manufacturing, and control ("CMC") issues.
Throughout the Class Period, the Defendants allegedly made
materially false and misleading statements regarding the Company's
business, operations, and prospects. Specifically, the Defendants
made false and/or misleading statements and/or failed to disclose
that Axsome's CMC practices were deficient with respect to AXS-07
and its manufacturing process.
On November 5, 2020, Axsome issued a press release reporting the
Company's third quarter 2020 results. That press release disclosed
that the Company "plans to submit the [AXS-07] NDA to the FDA in
the first quarter of 2021, versus previous guidance of the fourth
quarter of 2020, to allow for inclusion of supplemental
manufacturing information to ensure a robust submission package."
On this news, Axsome's stock price fell $5.22 per share, or 6.99%,
to close at $69.51 per share on November 5, 2020.
Then, on April 25, 2022, Axsome disclosed in an SEC filing that,
"on April 22, 2022, Axsome was informed by the [FDA] that [CMC]
issues identified during the FDA's review of the Company's [NDA]
for its AXS-07 product candidate for the acute treatment of
migraine are unresolved." That filing also disclosed that "[b]ased
upon the time remaining in the NDA review cycle, the Company
expects to receive a Complete Response Letter (CRL) with respect to
this NDA on or about the Prescription Drug User Fee Act (PDUFA)
target action date of April 30, 2022."
On this news, Axsome's stock price fell $8.60 per share, or 21.99%,
to close at $30.50 per share on April 25, 2022.
Finally, on May 2, 2022, Axsome announced that it received a CRL
from the FDA regarding the AXS-07 NDA for the acute treatment of
migraine. According to the Company, "the principal reasons given in
the CRL relate to [CMC] considerations" including "the need for
additional CMC data pertaining to the drug product and
manufacturing process."
As a result of Defendants' alleged wrongful acts and omissions, and
the precipitous decline in the market value of the Company's
securities, Plaintiff and other Class members have suffered
significant losses and damages, the lawsuit says.
Axsome is a biopharmaceutical company that engages in the
development of novel therapies for central nervous system ("CNS")
disorders in the U.S. The Company is developing, among other
product candidates, AXS-07, a novel, oral, rapidly absorbed,
multi-mechanistic, and investigational medicine for the acute
treatment of migraine.[BN]
The Plaintiff is represented by:
Jeremy A. Lieberman
J. Alexander Hood II
James M. LoPiano
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
E-mail: jalieberman@pomlaw.com
ahood@pomlaw.com
jlopiano@pomlaw.com
- and -
Brian Schall, Esq.
THE SCHALL LAW FIRM
2049 Century Park East, Suite 2460
Los Angeles, CA 90067
Telephone: (424) 303-1964
E-mail: brian@schallfirm.com
AYOBA INC: Chalas Files ADA Suit in S.D. New York
-------------------------------------------------
A class action lawsuit has been filed against Ayoba, Inc. The case
is styled as Ana Chalas, individually, and on behalf of all others
similarly situated v. Ayoba, Inc., Case No. 1:22-cv-03895
(S.D.N.Y., May 12, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Ayoba -- https://ayobafoods.com/ -- is a food and beverage company
that offers delicious and nutritious alternatives to the typical
meat snack online.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
BANCO POPULAR: Faces Lipsett Class Suit Over Collection of OD Fees
------------------------------------------------------------------
FRANKIE LIPSETT, on behalf of himself and all others similarly
situated v. BANCO POPULAR NORTH AMERICA d/b/a POPULAR COMMUNITY
BANK, Case No. 1:22-cv-03901 (S.D.N.Y., May 13, 2022) seeks
monetary damages, restitution and declaratory relief from Banco
Popular arising from the unfair and unconscionable assessment and
collection of "overdraft fees" ("OD Fees") on accounts that were
never actually overdrawn.
According to the complaint, this practice breaches contractual
promises made in Banco Popular's adhesion contracts. In plain,
clear, and simple language, the checking account contract documents
discussing OD Fees promise that Banco Popular will only charge OD
Fees on transactions where there are insufficient funds to cover
them.
Banco Popular also breaches its duty of good faith and fair dealing
when it charges fee in the above circumstance. Banco Popular's
customers have been injured by Banco Popular's improper practices
to the tune of millions of dollars taken from their accounts in
violation of their agreements with Banco Popular, the suit
asserts.
The Plaintiff is a citizen and resident of Bronx, New York.
Banco Popular is engaged in the business of providing retail
banking services to consumers, including Plaintiff and members of
the putative Classes throughout the United States. Banco Popular
has its headquarters at 85 Broad Street, New York, New York.
Banco Popular issues debit cards to its checking account customers,
including Plaintiff, which allows its customers to have electronic
access to their checking accounts for purchases, payments,
withdrawals and other electronic debit transactions.
Pursuant to its Account Documents, Banco Popular charges fees for
debit card transactions that purportedly result in an overdraft.
However, Banco Popular still assesses crippling OD Fees on many of
these transactions and mispresents its practices in its Account
Documents. Despite putting aside sufficient available funds for
debit card transactions at the time those transactions are
authorized, Banco Popular later assesses OD Fees on those same
transactions when they purportedly settle days later into a
negative balance, added the suit.[BN]
The Plaintiff is represented by:
Michael R. Reese, Esq.
REESE LLP
100 West 93rd Street, 16th Floor
New York, NY 10025
Telephone: (212) 643-0500
Facsimile: (212) 253-4272
E-mail: mreese@reesellp.com
- and -
Jeffrey D. Kaliel, Esq.
Sophia Gold, Esq.
KALIEL GOLD PLLC
1100 15th Street NW, 4th Floor
Washington, D.C. 20005
Telephone: (202) 350-4783
E-mail: jkaliel@kalielpllc.com
sgold@kalielgold.com
BANCO POPULAR: Fails to Protect Customers' Info, Marrero Alleges
----------------------------------------------------------------
ROSA E. RIVERA MARRERO, individually and on behalf of all others
similarly situated, Plaintiff v. BANCO POPULAR DE PUERTO RICO,
Defendant, Case No. 3:22-cv-01217 (D.P.R., May 12, 2022) is a class
action against the Defendant for negligence, breach of implied
contract, invasion of privacy, breach of confidence, and unjust
enrichment.
The case arises from the Defendant's alleged negligent and/or
careless acts which caused the unauthorized access of the
personally identifiable information (PII) of the Plaintiff and
Class members. Specifically, the Defendant failed to: (i)
adequately protect the PII of the Plaintiff and Class members; (ii)
warn the Plaintiff and Class members of its inadequate information
security practices; and (iii) avoid sharing the PII of Plaintiff
and Class members without adequate safeguards. As a result of the
Defendant's misconduct, the Plaintiff and Class members have
suffered and will continue to suffer other forms of injury and/or
harm including, but not limited to, anxiety, emotional distress,
loss of privacy, and other economic and non-economic losses.
Banco Popular de Puerto Rico is a for profit bank, headquartered at
Popular Center Building Suite 913, 209 Munoz Rivera Avenue, San
Juan, Puerto Rico. [BN]
The Plaintiff is represented by:
John A. Yanchunis, Esq.
Ryan D. Maxey, Esq.
MORGAN & MORGAN COMPLEX
LITIGATION GROUP
201 N. Franklin Street, 7th Floor
Tampa, FL 33602
Telephone: (813) 223-5505
E-mail: jyanchunis@ForThePeople.com
rmaxey@ForThePeople.com
- and –
Jorge R. Quintana-Lajara, Esq.
QUINTANA & SUAREZ, L.L.C.
400 Calle Calaf
PMB #165
San Juan, PR 00918-1314
Telephone: (787) 761-1067
Facsimile: (787) 330-0015
E-mail: jorgequintanalajara@gmail.com
BOTTLING GROUP: Butler Files Suit in Cal. Super. Ct.
----------------------------------------------------
A class action lawsuit has been filed against Bottling Group LLC,
et al. The case is styled as Christopher Butler, Saul
Alvarez-Cardenas, each on their own behalf, and on behalf of all
others similarly situated v. Bottling Group LLC, Pepsico INC., a
North Carolina corporation, Rolling Frito-Lay Sales, LP, a Delaware
limited partnership, Does 1-25, Case No. 34-2022-00319164-CU-OE-GDS
(Cal. Super. Ct., Sacramento Cty., April 29, 2022).
The case type 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 Plaintiffs are represented by:
Jacob N Whitehead, Esq.
SW EMPLOYMENT LAW
7700 Irvine Center Dr., Ste. 930
Irvine, CA 92618-3051
Phone: 949-674-4922
Email: jacob@swemploymentlaw.com
BROMPTON BICYCLE: Hanyzkiewicz Files ADA Suit in E.D. New York
--------------------------------------------------------------
A class action lawsuit has been filed against Brompton Bicycle,
Inc. The case is styled as Marta Hanyzkiewicz, on behalf of herself
and all others similarly situated v. Brompton Bicycle, Inc., Case
No. 1:22-cv-02809 (E.D.N.Y., May 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Brompton -- https://us.brompton.com/ -- offers bikes that fold down
small and are welcome on: rush-hour trains, underground or
overground, taxi boats and ferries, car boots and cabs.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
BROOKLYN BILTONG: Chalas Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Brooklyn Biltong LLC.
The case is styled as Ana Chalas, individually, and on behalf of
all others similarly situated v. Brooklyn Biltong LLC, Case No.
1:22-cv-03890 (S.D.N.Y., May 12, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Brooklyn Biltong -- https://www.brooklynbiltong.com/ -- offers beef
jerky snack.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
BUKHARI GROUP: Fails to Pay Overtime Pay, Campbell Suit Alleges
---------------------------------------------------------------
BRIANNA CAMPBELL; and SHAKEIM ROBINSON, individually and on behalf
of all others similarly situated, Plaintiff v. BUKHARI GROUP LLC;
NEES BUKHARI; AR GROUP OF RESTAURANTS, INC.; ALI BUTT; 4399 BRONX
CHICKEN LLC; BAYCHESTER CHICKEN INC.; BAYCHESTER CHICKEN BG INC.;
3555 WHITE PLAINS BG LLC; 3411 JEROME AVE CORP.; CONEY FOOD OF NY
LLC; 9400 LIBERTY CHICKEN LLC; 21903 N CONDUIT CHICKEN LLC;
ATLANTIC 107 CHICKEN LLC; CRISPY FOOD CORP.; and LIBERTY CHICKEN,
INC., Defendants, Case No. 1:22 cv-02813-MKB-PK (E.D.N.Y., May 13,
2022) is an action against the Defendant's failure to pay the
Plaintiff and the class overtime compensation for hours worked in
excess of 40 hours per week.
Plaintiff Campbell was employed by the Defendants as staff.
Plaintiff Robinson was employed as manager.
BUKHARI GROUP LLC owns and operates a Popeyes fast food restaurant.
[BN]
The Plaintiff is represented by:
Garrett Kaske, Esq.
Troy L. Kessler, Esq.
KESSLER MATURA P.C.
534 Broadhollow Road, Suite 275
Melville, NY 11747
Telephone: (631) 499-9100
Email: tkessler@kesslermatura.com
gkaske@kesslermatura.com
- and -
Delmas A. Costin, Jr., Esq.
THE LAW OFFICE OF DELMAS A. COSTIN, JR., PC
930 Grand Concourse, Suite 1F
Bronx, NY 10451
Telephone: (718) 618-0589
Email: dacostin@dacostinlaw.com
CALIFORNIA SKIN: Tovar Sues to Recoup Minimum, Overtime Wages
-------------------------------------------------------------
Kristell Tovar, an individual and on behalf of all others similarly
situated v. CALIFORNIA SKIN INSTITUTE MANAGEMENT, LLC., a Delaware
limited liability company; CALIFORNIA SKIN INSTITUTE HOLDINGS, LLC,
a Delaware limited liability company; GREG S. MORGANROTH, an
individual; and DOES 1 through 100, inclusive, Case No. 22CV397620
(Cal. Super. Ct., Santa Clara Cty., May 3, 2022), is brought to
seek overtime wages, minimum wages, payment of premium wages for
missed meal and rest periods, failure to pay timely wages, waiting
time penalties, wage statement penalties, failure to indemnify
work-related expenses, failing to pay vested vacation time at the
proper rate of pay, other such provisions of California law, and
reasonable attorneys' fees and costs.
The Defendants have failed to pay overtime wages to Plaintiff and
Class Members, or some of them, in violation of California state
wage and hour laws as a result of, without limitation, the
Plaintiff and Class Members working over 8 hours per day, 40 hours
per week, and seven consecutive work days in a work week without
being properly compensated for minutes worked in excess of 8 hours
per day in a work day, 40 hours per week in a work week, and/or
hours worked on the seventh consecutive work day in a work week by,
among other things, failing to accurately track and/or pay for all
minutes actually worked at the proper overtime rate of pay to the
detriment of Plaintiff and Class Members, says the complaint.
The Plaintiff was employed by the Defendant as a non-exempt
employee.
Skin Management is a limited liability company organized and
existing under and by virtue of the laws of the State of Delaware
and doing business in the County of Santa Clara, State of
California.[BN]
The Plaintiff is represented by:
David D. Bibiyan, Esq.
Jeffrey C. Bils, Esq.
Joshua Shirian, Esq.
BIBIYAN LAW GROUP, P.C.
8484 Wilshire Boulevard, Suite 500
Beverly Hills, CA 90211
Phone: (310) 438-5555
Fax: (310) 300-1705
Email: david@tomorrowlaw.com
lljbils@tomorrowlaw.com
11josh@tomorrowlaw.com
CALIFORNIA: Has Until July 1 to File Response to Seymour v. Doe
---------------------------------------------------------------
Magistrate Judge Erica P. Grosjean of the U.S. District Court for
the Eastern District of California allowed the Defendants to have
until July 1, 2022, to file their responsive pleading to the
lawsuit styled AARON D. SEYMOUR, Plaintiff v. DOE 1, et al.,
Defendants, Case No. 1:21-cv-01485-AWI-EPG (PC) (E.D. Cal.).
On April 27, 2022, the Defendants filed a motion for an extension
of time to file their responsive pleading. Defense counsel states
that he has been diligently investigating the Plaintiff's
allegations. "However, because the case involves complex issues of
ground water contamination and complex medical claims, counsel
requires more time to do an adequate analysis and prepare a
response. Also, Plaintiff has indicated an intent to pursue this
claim as a class action, has contacted Plaintiff's counsel in the
class action matter of Plata v. Newsom, Case No. 01-cv-01351-JST,
who, in turn, have contacted CDCR regarding the issue. Although the
two sides have not yet come to an agreement as to whether this
claim falls within the scope of Plata, should be its own class
action, or proceed as is, it would be prudent to extend deadlines
in order that those determinations can be made."
The Defendants ask that they be given until July 1, 2022, to file
their responsive pleading.
The Court finds good cause to grant the Defendants' motion.
Accordingly, it is ordered that the Defendants have until July 1,
2022, to file their responsive pleading.
A full-text copy of the Court's Order dated May 2, 2022, is
available at https://tinyurl.com/bdhv7cxp from Leagle.com.
CHARTER COMMUNICATIONS: Baird Seeks to Certify Class Claims
-----------------------------------------------------------
In the class action lawsuit captioned as LANCE BAIRD, FABIAN
HUERTA, AND KOYAANA REDSTAR, individually and on behalf of a class
of others similarly situated, v. CHARTER COMMUNICATIONS, INC. dba
CHARTER COMMUNICATIONS (CCI), INC., a Delaware Corporation; and
DOES 1-100, Case No. 2:19-cv-10621-FLA-KS (C.D. Cal.), the
Plaintiffs ask the Court to enter an order granting certification
of their class claims.
The Plaintiffs also move to be appointed Class Representatives and
for their counsel to be appointed Class Counsel pursuant
6 to Fed. R. Civ. P. 23 (g).
Through this action, the Plaintiffs are seeking an order enjoining
the Defendant from continuing its false advertising practice, which
is making material misrepresentations about its internet service
pricing to all California consumers.
Further, the Plaintiffs are seeking an order for the Defendant to
restore Plaintiffs and Class Members for their monies wrongfully
taken as part of Defendant’s unlawful advertisement campaign
created to cheat consumers for its own economic gain. As such, the
Plaintiffs move for certification against Defendant under Fed. R.
Civ. P. 23(b)(2) and separately under Fed. R. Civ. P. Rule 23(b)(3)
of two classes arising from the Defendants' uniform 18 practices:
-- Store Pickup Class
"All persons in California who purchased internet service
from the Defendant, and to whom Defendant promised "free"
use of Defendant's internet modems but were charged $9.99
to self-install Defendant's internet service."
-- Own Modem Class
"All persons in California who purchased internet from the
Defendant and were charged $9.99 to self-install the
Defendant’s internet service."
Defendant is charging this $9.99 fee without providing anything of
value, as it is charged whether a consumer uses Defendant's modem
or their own, or whether the self-installation kit was delivered or
picked up by the consumer, the lawsuit says.
Charter Communications provides internet service to consumers
across the United States and the State of California using the
branding name "Spectrum." The Defendant's Spectrum Internet is not
only one of the leading internet service providers statewide, but
also one of the only few internet service providers in Southern
California.
A copy of the Plaintiffs' motion to certify class dated April 29,
2022 is available from PacerMonitor.com at https://bit.ly/3yGpVF6
at no extra charge.[CC]
The Plaintiffs are represented by:
Kaveh S. Elihu, Esq.
Saima Ali Gipson, Esq.
EMPLOYEE JUSTICE LEGAL GROUP, PC
1001 Wilshire Boulevard
Los Angeles, CA 90017
Telephone: (213) 382-2222
Facsimile: (213) 382-2230
E-mail: kelihu@ejlglaw.com
sali@ejlglaw.com
CHICAGO, IL: Appeals Court Flips Dismissal of Pinkston Class Suit
-----------------------------------------------------------------
In the case, ALEC PINKSTON, Individually and on Behalf of Others
Similarly Situated, Plaintiff-Appellant v. THE CITY OF CHICAGO,
Defendant-Appellee, Case No. 1-20-0957 (Ill. App.), the Appellate
Court of Illinois for the First District, Sixth Division, reversed
the circuit court's dismissal of the Plaintiff's complaint and
remanded for further proceedings on his claims.
I. Background
Plaintiff Pinkston filed a class action complaint alleging that the
City of Chicago has an ongoing practice of improperly issuing
central business district metered parking tickets. Mr. Pinkston
alleged that the City routinely issues these tickets, for which
there is a higher penalty than ordinary metered parking tickets,
outside of the boundaries of the central business district
established by the Chicago Municipal Code.
On behalf of himself and a class of similarly situated individuals,
Mr. Pinkston sought a declaration that the tickets were void, an
injunction to halt the practice, and the disgorgement of parking
fees and the interest charged on those fees as a remedy for the
City's unjust enrichment.
On behalf of himself and a proposed class of similarly situated
individuals, Mr. Pinkston asserted three counts against the City,
seeking (1) a declaration that the improperly issued tickets were
facially invalid, void, and unenforceable; (2) an injunction to
prevent the City from continuing to issue central business district
tickets to vehicles parked outside the district; and (3) as a
remedy for unjust enrichment, the repayment of fines, penalties,
and interest the City had unjustly received and retained at the
expense of class members.
The City successfully moved to dismiss the complaint pursuant to
section 2-619 of the Code of Civil Procedure (Civil Code) (735 ILCS
5/2-619 (West 2018)), on the grounds that Mr. Pinkston had failed
to exhaust his administrative remedies with the City's Department
of Administrative Hearings (DOAH) before initiating the action in
the circuit court. Finding that "a factual question remained as to
whether Mr. Pinkston's payment of the parking ticket was truly
voluntary," the court did not base its dismissal on application of
the voluntary payment doctrine.
The appeal followed. On appeal, Mr. Pinkston maintains that several
exceptions to the exhaustion doctrine apply and should have
prevented dismissal of his claims.
II. Analysis
The City urges the Appellate Court to affirm the dismissal of Mr.
Pinkston's complaint on appeal because (1) Mr. Pinkston failed to
exhaust his administrative remedies and (2) Mr. Pinkston's claims
are barred by the voluntary payment doctrine.
A. The Exhaustion Doctrine
The circuit court agreed with the City that Mr. Pinkston's claims
were barred because he failed to exhaust his administrative
remedies. Although strict compliance is generally required, our
supreme court has recognized a number of exceptions to the
exhaustion doctrine, including when (1) "a statute, ordinance, or
rule is attacked as unconstitutional on its face"; (2) "multiple
administrative remedies exist and at least one is exhausted"; (3)
"the agency cannot provide an adequate remedy"; (4) "it is patently
futile to seek relief before the agency"; (5) "no issues of fact
are presented or agency expertise is not involved"; (6)
"irreparable harm will result from further pursuit of
administrative remedies"; or (7) "the agency's jurisdiction is
attacked because it is not authorized by statute."
Mr. Pinkston contends that several of these exceptions apply to his
claims. He argues that (1) the ticket he received was void, both
because the City lacked statutory authority to issue it and because
it was invalid on its face, (2) it would have been futile to
challenge his ticket with DOAH, (3) resolution of his claims
required no factfinding or agency expertise, (4) availing himself
of the administrative process would have resulted in irreparable
injury, and (5) DOAH could not provide Mr. Pinkston with an
injunction, the "ultimate relief" he sought.
The Appellate Court agrees with Mr. Pinkston that the last of these
exceptions applies. However, because of its view that this
exception applies is dependent on Mr. Pinkston's ability to prove
his allegation of a "routine practice" of issuing central business
district tickets for vehicles, like his, that were parked outside
of the central business district, the Appellate Court also wants to
make clear that none of the other exceptions that he cites are
applicable.
The Appellate Court finds that (i) because the issuance of tickets
by the City falls within its police powers and is not the action of
an administrative agency and because Mr. Pinkston's allegations, if
true, would establish that his parking ticket was voidable but not
void, the exception to the exhaustion doctrine for challenges to
void orders issued without agency authority does not apply; (ii)
DOAH routinely adjudicates questions like this and that the
exception to the requirement of administrative exhaustion for
situations where there are no factual questions or need for agency
expertise is inapplicable; (iii) Mr. Pinkston has failed to
convince us that the irreparable-injury exception to the exhaustion
doctrine applies in the case; and (iv) the factual and legal issues
that must be resolved do not "arise from" an agency decision, so
the Administrative Review Law does not provide the remedy Mr.
Pinkston seeks; and
Given the unresolved questions of fact and law, the Appellate Court
cannot affirm the circuit court's dismissal of Mr. Pinkston's
complaint on the basis that his claims were barred by the voluntary
payment doctrine.
III. Conclusion
Although it agrees with the City that the first four of these
exceptions do not apply, the Appellate Court is persuaded that the
last one does. It accepts, for purposes of the motion to dismiss,
Mr. Pinkston's argument that DOAH, which is tasked by the Municipal
Code with establishing liability or nonliability for individual
parking violations, cannot provide him with the core relief he
seeks -- injunctive and monetary relief to prospectively and
retroactively redress the deleterious effects of the City's
purportedly widespread practice of issuing erroneous central
business district tickets.
For these reasons, the Appellate Court reversed the circuit court's
dismissal of Mr. Pinkston's complaint and remanded for further
proceedings on his claims.
A full-text copy of the Court's May 6, 2022 Opinion is available at
https://tinyurl.com/2p925u8m from Leagle.com.
Thomas A. Zimmerman, Jr. -- tom@attorneyzim.com -- and Matthew C.
De Re -- matt@attorneyzim.com -- of Zimmerman Law Offices, P.C., of
Chicago, for the Appellant.
Celia Meza, Corporation Counsel of the City of Chicago, (Myriam
Zreczny Kasper, Chief Assistant Corporation Counsel, and Justin A.
Houppert, Senior Counsel, of counsel), for the Appellee.
CHICAGO, IL: Appeals Court Reverses Dismissal of Blaha Class Suit
-----------------------------------------------------------------
In the case, MIKE BLAHA, GABRIEL CARPIO, and KYLE GARCHAR,
Individually and On Behalf of All Others Similarly Situated,
Plaintiffs-Appellants v. THE CITY OF CHICAGO, Defendant-Appellee,
Case No. 1-21-0546 (Ill. App.), the Appellate Court of Illinois for
the First District, Sixth Division, reversed the circuit court's
dismissal order and remanded for further proceedings as to the
Plaintiffs other than Mr. Carpio.
The Plaintiffs filed a class action complaint alleging that the
City of Chicago violated section 11-208.3(b)(10) of the Illinois
Vehicle Code (Vehicle Code), 625 ILCS 5/11-208.3(b)(10) (West
2020), when it imposed fines in excess of $250 for ordinance
violations that were adjudicated administratively.
The dispute in the case centers on two specific subsections within
section 11-208.3 of the Vehicle Code: Subsections (a) and (b)(10).
The parties disagree over whether these two sub-provisions can be
read harmoniously and to what extent they restrict the powers of
City officials processing local traffic ordinances through the
administrative system.
Section 11-208.3(a) is an authorization provision, laying out the
purpose of administrative adjudication and providing a broad
framework for the types of minor civil offenses that are eligible
for such treatment. Section 11-208.3(b)(10) is one of 11
requirements in subsection (b) for what a local government's
administrative adjudication system must provide.
Each of the Plaintiffs received one or more tickets for violating
section 9-64-125 of the Municipal Code, an ordinance regulating the
display of "wheel tax license emblems." The "wheel tax" is an
annual tax levied on vehicle-owning residents of Chicago that is
used to fund road maintenance. It is colloquially known as the
"city sticker tax" because proof of payment comes in the form of a
"City of Chicago Vehicle Sticker," which displays a date of
expiration and is affixed to the front windshield of the vehicle.
Section 9-64-125 makes it is a finable offense to park "on any
portion of the public way, or on any city-owned property, or in a
public parking garage ***, or in any parking lot open to pedestrian
traffic" without properly displaying the sticker.
On July 17, 2018, Mike Blaha filed a complaint, together with a
motion for class certification, alleging that through its ticketing
practices, the City was routinely flouting the limits placed upon
it by section 11-208.3(b)(10) of the Vehicle Code, which, he
argued, should be read as a strict $250 cap on per-violation fines
and penalties allowed under Chicago's administrative system. This
$250 limit, Mr. Blaha claimed, exists to protect the due process
rights of those who receive tickets as "the Illinois Vehicle Code
specifically provides that if a municipal code violation is minor
enough to justify administrative adjudication, the penalty for the
violation must be minor as well."
The complaint was later amended to add Mr. Carpio, Mr. Garchar, and
an individual named Lekesha Boyd (who is not a party to this
appeal) as Plaintiffs. All the Plaintiffs, the complaint alleged,
had received citations "for a number of parking, standing and/or
compliance violations pursuant to a schedule of civil fines adopted
by City ordinance where the total amount of the fine and penalty
for any one violation exceeded $250.
On behalf of themselves and a putative class of similarly situated
individuals, the Plaintiffs sought (1) a declaration that all
provisions of the Chicago Municipal Code (Municipal Code) that
enabled the collection of such fines are void for exceeding what is
permissible under the Vehicle Code and (2) disgorgement of all
fines, penalties, and other amounts to remedy the City's unjust
enrichment.
The City moved to dismiss the complaint, arguing that the $250
figure highlighted by the Plaintiffs in section 11-208.3(b)(10) of
the Vehicle Code was a drafting error and that the larger statutory
scheme set out in section 11-208.3, and the legislative history of
the provision, demonstrate an intent to permit municipalities to
impose fines and penalties of up to $500 per violation, as
expressly specified in a separate subsection of the statute,
section 11-208.3(a). The circuit court agreed with the City's
statutory interpretation and dismissed the complaint with
prejudice.
On appeal, the Plaintiffs argue that the circuit court erred in
determining that (1) the $250 figure in section 11-208.3(b)(10) was
a drafting error that must be given no effect and (2) Mr. Carpio
lacked standing. In their briefing materials, they also contested
the circuit court's ruling on a motion for substitution of judge
filed by Mr. Garchar, but they unequivocally abandoned this third
claim at oral argument.
II. Analysis
On appeal, the Plaintiffs' primary argument is that the circuit
court erred when it found that the $250 limit on fines and
penalties in section 11-208.3(b)(10) of the Vehicle Code was a
drafting error that was entitled to no effect. The Plaintiffs also
take issue with two other decisions made by the circuit court: (1)
a determination that one of the Plaintiffs, Gabriel Carpio, lacked
standing because he was assessed only a $200 fine, which he
promptly paid, and (2) the denial of a motion for substitution of
judge as a matter of right filed by Plaintiff Kyle Garchar on the
basis that it was untimely.
A. The Validity of the $250 Cap in Section 11-208.3(b)(10)
The circuit court in the case concluded that sections 11-208.3(a)
and 11-208.3(b)(10), on their face, conflicted. This conclusion
allowed the court to look beyond the bare text and consider the
statute's complicated legislative history.
In sum, viewing the totality of the statutory language, the
Appellate Court agrees with the Plaintiffs that subsections (a) and
(b)(10) of section 11-208.3 can be read harmoniously. The $250 cap
in subsection (b)(10) applies to the fines and penalties "enacted
by ordinance," which include the city sticker and fire hydrant
violations at issue in the litigation.
B. Mr. Carpio's Standing
The Plaintiffs contend that Mr. Carpio has standing, even though he
paid his ticket before a late fee kicked in, because the ordinance
under which he was fined $200 is facially unconstitutional and thus
can be challenged by anyone prosecuted under that ordinance.
The Appellate Court holds that by itself, the ordinance requiring a
city sticker, which Mr. Carpio was administratively charged with
violating (section 9-64-125 of the Municipal Code), is not void ab
initio, unconstitutional, or even violative of any state statute.
Rather, it is the penalty provision for late payment (section
9-100-050(e) of the Municipal Code) -- which operated to double the
fine imposed by the city sticker ordinance if the fine was not paid
within 25 days -- that the Plaintiffs claim violated state law when
it was applied to an ordinance violation that carried a fine of
over $125. In Mr. Carpio's case, that doubling provision was never
applied. The circuit court was correct in its determination that he
has no standing to bring the suit.
C. The City's Home Rule Authority
The final issue to address is the City's argument, in the
alternative, that even if the $250 limit in section 11-208.3(b)(10)
applies, Chicago has the power to enact fines in excess of that
limit, pursuant to its home rule authority.
The Appellate Court opines that the presence of specific preemptory
language in section 11-208.6(c) does not mean that every section of
the Vehicle Code needs to have its own stand-alone preemption
language. For one, such an interpretation renders entirely
meaningless section 11-208.2, a provision whose obvious purpose is
to serve as a general bar on home rule authority unless an
exception applies. But beyond that, the additional preemptive
language in section 11-208.6 makes sense when that language is
contextualized.
As the circuit court recognized, the City's claim that its
authority to administratively adjudicate derives not from the
Vehicle Code but from its own home rule authority loses credibility
when the Appellate Court considers the City's past actions, the
language in its own ordinances, and the basic history of section
11-208.3.
III. Conclusion
The Appellate Court agrees with the Plaintiffs' principal argument
that the circuit court erred in concluding that the $250 figure in
subsection (b)(10) was a legislative error. However, it agrees with
the circuit court that Mr. Carpio lacked standing. The Appellate
Court declines to address the issue of the denial of Mr. Garchar's
motion for substitution of judge, as the Plaintiffs expressly
withdrew that issue on appeal at oral argument.
The Appellate Court affirmed the circuit court's determination that
Mr. Carpio lacked standing but reversed the circuit court's
dismissal of the Plaintiffs' complaint. It, thus, remanded the
cause to the circuit court for further proceedings.
A full-text copy of the Court's May 6, 2022 Opinion is available at
https://tinyurl.com/3v7mhpaa from Leagle.com.
Myron M. Cherry -- mcherry@cherry-law.com -- Jacie C. Zolna --
jzolna@cherry-law.com -- and Benjamin R. Swetland of Myron M.
Cherry & Associates, LLC, of Chicago, for the Appellant
Celia Meza, Corporation Counsel of the City of Chicago (Myriam
Zreczny Kasper, Deputy Corporation Counsel, and Stephen G. Collins,
Assistant Corporation Counsel, of counsel), for the Appellee.
CHURCHILL DOWNS: Court Approves Settlement in Soileau Suit
-----------------------------------------------------------
Churchill Downs Incorporated disclosed in its Form 10-Q Report for
the quarterly period ended December 31, 2021, filed with the
Securities and Exchange Commission on April 27, 2022, that in
January 28, 2021, a Louisiana District Court issued a Final Order
and Judgement approving the settlement of class action styled "John
L. Soileau, et. al. versus Churchill Downs Louisiana Horseracing,
LLC, Churchill Downs Louisiana Video Poker Company, LLC" (Suit No.
14-3873).
On April 21, 2014, John L. Soileau and other individuals filed a
Petition for declaratory judgment, permanent injunction, and
damages in the Parish of Orleans Civil District Court, State of
Louisiana. The petition defined the "alleged plaintiff class" as
quarter horse owners, trainers and jockeys that have won purses at
the "Fair Grounds Race Course & Slots" facility in New Orleans,
Louisiana since 2008.
The petition alleged that Churchill Downs Louisiana Horseracing,
LLC and Churchill Downs Louisiana Video Poker Company, LLC have
collected certain monies through video draw poker devices that
constitute monies earned for purse supplements and all of those
supplemental purse monies have been paid to thoroughbred horsemen
during Fair Grounds' live thoroughbred horse meets. Law requires a
portion of those supplemental purse monies to be paid to
quarter-horse horsemen during Fair Grounds' live quarter-horse
meets.
The petition requested that the District Court issue a permanent
and mandatory injunction ordering Fair Grounds Defendants to pay
all future supplements due to the plaintiff class and to pay the
plaintiff class such sums as it finds to reasonably represent the
value of the sums due to the plaintiff class. The Louisiana Fourth
Circuit Court of Appeals reversed the Louisiana Racing Commission's
previous ruling that the plaintiffs did not have standing and
remanded the matter to the Louisiana Racing Commission for further
proceedings on June 13, 2018.
The parties submitted a settlement agreement to the District Court
on February 14, 2020, following the Louisiana Racing Commission's
approval to transfer the matter to the District Court for approval
and administration of the settlement agreement on February 12,
2020. At a hearing on February 18, 2020, the District Court granted
preliminary approval of the settlement agreement and set certain
deadlines relating to actions to be taken by class members. The
settlement agreement requires, among other items, the Fair Grounds
Defendants to (i) pay a certain out-of-pocket amount that is within
the amount for which we established an accrual in the third quarter
of 2019, and (ii) support legislation that allocates a specified
amount of video poker purse funds to quarter horse purses for races
at Fair Grounds with maximum annual payout caps that are not deemed
material.
On June 13, 2020, the legislation addressed in the settlement
agreement was passed by the legislature and signed into law by the
Governor of Louisiana. The settlement includes a release of claims
against the Fair Grounds Defendants in connection with the
proceeding, although individual plaintiffs may opt-out. Objecting
plaintiffs have filed a notice of appeal of the February 2020 Order
appointing class counsel and certifying a class for settlement
purposes. On January 28, 2021, the District Court issued a Final
Order and Judgement approving the settlement. The objectors filed a
notice of appeal of the January 28, 2021 Final Order and Judgment.
That appeal has been consolidated with the earlier-filed appeal of
the February 2020 Order appointing class counsel and certifying a
class for settlement purposes.
On December 22, 2021, the Fourth Circuit Court of Appeal entered an
order affirming the orders of the District Court and approving the
settlement. On January 7, 2022, the Fourth Circuit Court of Appeal
denied the objectors' motion for remand and application for
rehearing. On February 6, 2022, the objectors filed a writ of
certiorari with the Louisiana Supreme Court, which was denied on
April 12, 2022.
Churchill Downs Incorporated is a racing, online wagering and
gaming entertainment company based in Kentucky.
CITIGROUP INC: Appeals Partial Denial of Bid to Dismiss Bruce Suit
------------------------------------------------------------------
Citigroup, Inc. filed an appeal from a court ruling entered in the
lawsuit styled Bruce v. Citigroup Inc., Citbank, N.A., and Citibank
(South Dakota), N.A., Case No. 14-8224, in the U.S. District Court
for the Southern District of New York (White Plains).
On April 30, 2014, the Plaintiff initiated an adversary proceeding.
She amended her complaint on Nov. 18, 2014. The Amended Complaint
seeks to hold the Defendants in contempt of the Bankruptcy Court's
May 7, 2013 discharge order, as well as discharge orders protecting
similarly situated debtors issued by other bankruptcy courts
throughout the country. The Plaintiff requested, on behalf of the
putative class, declaratory and injunctive relief, as well as
compensatory and punitive damages.
The Defendants moved to compel arbitration on the Plaintiff's
original adversary complaint, and the Bankruptcy Court denied the
motion on Nov. 12, 2014. The defendants in two related cases--which
the Plaintiff states are based on the same factual and legal
claims--also moved to compel arbitration; the Bankruptcy Court
denied those motions and all three were appealed to other judges of
the Court.
On April 13, 2021, the Bankruptcy Court so-ordered a joint
stipulation by the parties setting a supplemental briefing schedule
on the Defendants' motion to dismiss the Amended Complaint and
strike or dismiss the class allegations. After supplemental
briefing, the Bankruptcy Court held a lengthy hearing on the
Defendants' motion on July 22, 2021, and then ruled from the bench,
denying the motion to dismiss in part and denying the motion to
strike.
On Aug. 10, 2021, the Bankruptcy Court issued an Order formalizing
this bench ruling.
The Defendants are now seeking a review of the Aug. 10, 2021
order.
The appellate case is captioned as Citigroup, Inc., et al. v.
Bruce, Case No. 22-1000, in the United States Court of Appeals for
the Second Circuit, filed on May 4, 2022.[BN]
Defendants-Petitioners Citigroup Inc. and Citibank, N.A. are
represented by:
Eamon Paul Joyce, Esq.
SIDLEY AUSTIN LLP
787 7th Avenue
New York, NY 10019
Telephone: (212) 839-8555
Plaintiff-Respondent Kimberly Bruce, Debtor and Plaintiff on behalf
of herself and all others similarly situated, AKA Kimberly A.
Bruce, AKA Kimberly Antrell Bruce, is represented by:
George F. Carpinello, Esq.
BOIES SCHILLER FLEXNER LLP
30 South Pearl Street, 11th Floor
Albany, NY 12207
Telephone: (518) 434-0600
E-mail: gcarpinello@bsfllp.com
CURRENEX INC: Faces EFC RICO Suit in New York Court
---------------------------------------------------
State Street Corporation disclosed in its Form 10-Q Report for the
quarterly period ended March 31, 2022, filed with the Securities
and Exchange Commission on April 27, 2022, that its subsidiary
Currenex, Inc. is facing a putative civil class action lawsuit
captioned "Edmar Financial Company, LLC et al v. Currenex, Inc. et
al" in the Southern District of New York alleging antitrust
violations, fraud and a civil Racketeer Influenced and Corrupt
Organization Act (RICO) violation against Currenex, State Street
and others. Said case was filed in August 2021 by two former
Currenex clients filed
State Street Corporation is a financial holding company based in
Massachusetts. It acquired online foreign exchange trading network
Currenex in 2007.
DECKER ELECTRIC: Hicks Files Suit in Cal. Super. Ct.
----------------------------------------------------
A class action lawsuit has been filed against Decker Electric Co.,
et al. The case is styled as Charles Hicks, on behalf of himself
and all others, similarly situated v. Decker Electric Co., a
California corporation, Does 1 to 50, Inclusive, Case No.
CGC22599591 (Cal. Super. Ct., San Francisco Cty., May 11, 2022).
The case type is stated as "Other Non-Exempt Complaints (Other
Employment)."
Decker Electric -- https://www.deckerelectric.com/ -- is the Bay
Area's premier provider of comprehensive commercial, industrial,
and institutional electrical services.[BN]
The Plaintiff is represented by:
Mehrdad Bokhour, Esq.
BOKHOUR LAW GROUP, P.C.
1901 Avenue of the Stars, Suite 450
Los Angeles, CA 90067
Phone: 310-975-1493
Fax: 310-300-1705
- and -
Joshua S. Falakassa, Esq.
FALAKASSA LAW, P.C.
1901 Avenue Of The Stars, Ste. 450
Los Angeles, CA 90067-6006
Phone: 818-456-6168
Email: josh@falakassalaw.com
DELL TECHNOLOGIES: Brown Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Dell Technologies,
Inc. The case is styled as Lamar Brown, on behalf of himself and
all others similarly situated v. Dell Technologies, Inc., Case No.
1:22-cv-03939 (S.D.N.Y., May 14, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Dell Technologies Inc. -- https://www.dell.com/en-us -- is an
American multinational technology company headquartered in Round
Rock, Texas.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
DIAMOND TECHNICAL: Parties Seek to Certify Settlement Class
-----------------------------------------------------------
In the class action lawsuit captioned as ANDREW GUNTER, On behalf
of himself and all others similarly situated, v. DIAMOND TECHNICAL
SERVICES, INC., Case No. 2:20-cv-01428-WSS (W.D. Pa.), the Parties
asks the Court to enter an order:
1. Certifying, pursuant to Fed. Rs. Civ. P. 23(a) and 23(b)
(3), a settlement class consisting of:
"Plaintiff [Andrew Gunter] and all individuals who formerly
or currently work for Diamond Technical Services, Inc.
under the job title technician, or its equivalent, during
any workweek from September 22, 2017 to September 22,
2020;"
2. Approving, pursuant to Fed. R. Civ. P. 23(e)(2) and Girsh
v. Jepson, 521 F.2d 153 (3d Cir. 1975), the settlement of
this action as "fair, reasonable, and adequate;"
3. Approving class members' waiver of their wage and hour
claims as provided in the Settlement Agreement;
4. Approving the payment of a $5,000 service award to Named
Plaintiff Andrew Gunter;
5. Appointing, pursuant to Fed. R. Civ. P. 23(g)(1), Interim
Class Counsel to serve as Permanent Class Counsel; and
6. Approving, pursuant to Fed. R. Civ. P. 23(h) and the Third
Circuit's "Gunter" and "Prudential" factors, see Kapolka v.
Anchor Drilling Fluids USA, LLC, Case No. 2:18-cv-01007-NR,
2019 (W.D.Pa. Oct. 22, 2019) and applying Gunter v.
Ridgewood Energy Corp., 223 F.3d 190, 195 n.1 (3d Cir.
2000) and Krell v. Prudential Ins. Co. of Am., a payment to
Interim Class Counsel of $93,332.40 (representing
$90,502.40 in attorneys' fees and $2,830.00 in costs), as
well as settlement administration costs to settlement class
administrator Settlement Services, Inc. in the amount of
$20,000.00.
Diamond Technical is a technical services and engineering
consulting company.
A copy of the Parties' motion dated April 29, 2022 is available
from PacerMonitor.com at https://bit.ly/3wiFcKI at no extra
charge.[CC]
The Plaintiff is represented by:
Joseph F. Scott, Esq.
Ryan A. Winters, Esq.
Kevin M. McDermott II, Esq.
SCOTT & WINTERS LAW FIRM, LLC
The Caxton Building
812 Huron Rd. E., Suite 490
Cleveland, OH 44115
Telephone: (216) 912-2221
Facsimile: (216) 350-6313
E-mail: jscott@ohiowagelawyers.com
rwinters@ohiowagelawyers.com
kmcdermott@ohiowagelawyers.com
The Defendant is represented by:
Mary-Jo Rebelo, Esq.
Courtney C. Brennan, , Esq.
BURNS WHITE CENTER
48 26 th Street
Pittsburgh, PA 15222
Telephone: (412) 995-3347
E-mail: mjrebelo@burnswhite.com
ccbrennan@burnswhite.com
- and -
Alan T. Silko, Esq.
Jessica L. Silko, Esq.
SILKO & ASSOCIATES, P.C.
80 Emerson Lane, Suite 1305
Bridgeville, PA 15017
Telephone: 412-914-0144
E-mail: ASilko@Silkolaw.com
Jessica.Silko@Silkolaw.com
DON'T GO NUTS: Davis Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Don't Go Nuts, LLC.
The case is styled as Kevin Davis, on behalf of himself and all
others similarly situated v. Don't Go Nuts, LLC, Case No.
1:22-cv-03948 (S.D.N.Y., May 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Don't Go Nuts -- https://dontgonuts.com/ -- offers deliciously
chewy choices in our line of organic, non-GMO, gluten-free,
nut-free, peanut-free granola bars.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
DREAMCATCHER BROADCASTING: King Furs Sues Over TV Ad Price Fixing
-----------------------------------------------------------------
KING FURS, INC., individually and on behalf of all other similarly
situated, Plaintiff v. DREAMCATCHER BROADCASTING, LLC; THE E.W.
SCRIPPS COMPANY; GRIFFIN COMMUNICATIONS, LLC; FOX CORPORATION;
MEREDITH CORPORATION; NEXSTAR MEDIA GROUP, INC.; GRAY MEDIA GROUP;
SINCLAIR BROADCAST GROUP, INC.; TEGNA, INC.; TRIBUNE BROADCASTING
COMPANY, LLC; AND TRIBUNE MEDIA COMPANY, Defendants, Case No.
2:22-cv-02301-SHL-tmp (W.D. Tenn., May 15, 2022) antitrust class
action arises from a price fixing cartel facilitated by an
anticompetitive information exchange between and among the
Defendants in violation of the Sherman Act.
The Plaintiff alleges in the complaint that the Defendants secretly
orchestrated a unitary, overarching scheme to supra-competitively
impact the price levels of broadcast television spot advertisements
by agreeing to fix prices and exchange competitively sensitive
historic, current, and forward-looking sales data, including
inventory or pacing data.
Pacing data is used to compare a broadcast station's revenues
booked for a certain time period to the revenues booked for the
same point in time in the previous year, the exchange of which
allows the Defendants to forecast their would-be competitors'
remaining inventory of broadcast television spot advertising,
typically expressed as a plus or minus percentage, e.g., plus or
minus 20%.
DREAMCATCHER III LLC was founded in 2011. The company's line of
business includes operating public hotels and motels. [BN]
The Plaintiff is represented by:
Edward M. Bearman, Esq.
JG LAW FIRM
780 Ridge Lake Blvd., #202
Memphis, TN 38120
Telephone: (901) 682-3450
Email: ebearman@jglawfirm.com
- and -
Todd M. Schneider, Esq.
Matthew S. Weiler, Esq.
Sunny S. Sarkis, Esq.
SCHNEIDER WALLACE COTTRELL KONECKY LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
Email: tschneider@schneiderwallace.com
mweiler@schneiderwallace.com
ssarkis@schneiderwallace.com
- and -
Christopher T Hellums, Esq.
Emily Irvin Curran, Esq.
PITTMAN DUTTON HELLUMS BRADLEY & MANN, P.C.
2001 Park Place North, #1100
Birmingham, AL 35203
Telephone: (205) 322-8880
Email: emily@pittmandutton.com
chrish@pittmandutton.com
DURKEE-MOWER INC: Chalas Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Durkee-Mower, Inc.
The case is styled as Ana Chalas, individually, and on behalf of
all others similarly situated v. Durkee-Mower, Inc., Case No.
1:22-cv-03887 (S.D.N.Y., May 12, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Durkee-Mower, Inc. -- https://marshmallowfluff.com/ -- is known for
its Marshmallow Fluff brand of whipped marshmallow products used in
desserts.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
EASLEY TRANSPORTATION: Williams Seeks Conditional Cert. of Suit
---------------------------------------------------------------
In the class action lawsuit captioned as JAMES WILLIAMS,
Individually, and on behalf of other similarly situated current and
former employees, v. EASLEY TRANSPORATION, LLC, A Tennessee Limited
Liability Company, Case No. 2:20-cv-02952-TLP-atc (W.D. Tenn.), the
Plaintiff asks the Court to enter an order:
1. conditionally certifying the action under the Fair Labor
Standards Act ("FLSA");
2. authorizing the Plaintiff's claims to proceed as a FLSA
collective action for overtime violations on behalf of
Plaintiff and other similarly situated employees;
3. directing the Defendant to immediately provide Plaintiff's
counsel a computer-readable file containing the names
(last names first), last known physical addresses, last
known email addresses, social security numbers, dates of
employment, and last known telephone numbers of all
putative class members; (3) providing that the Court-
approved notice be posted at Defendant's principle place
of business, enclosed with all of Defendant's currently
employed putative class members' next regularly-scheduled
paycheck/stub, and be mailed and emailed to the putative
class;
4. tolling the statute of limitations for the putative class
as of the date this is fully briefed; and
5. requiring that the Opt-in Plaintiffs' Consent to Join
Forms be deemed "filed" on the date they are postmarked.
Easley provides expedited transportation and distribution
solutions.
A copy of the Plaintiff's motion to certify class dated April 29,
2022 is available from PacerMonitor.com at https://bit.ly/3wijC98
at no extra charge.[CC]
The Plaintiff is represented by:
J. Russ Bryant, Esq.
Robert E. Turner, IV, Esq.
Robert E. Morelli, III, Esq.
JACKSON SHIELDS YEISER HOLT
OWEN & BRYANT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 759-1745
E-mail: rbryant@jsyc.com
rturner@jsyc.com
rmorelli@jsyc.com
EMERALD INVESTMENT: Zepeda Files Suit in Cal. Super. Ct.
--------------------------------------------------------
A class action lawsuit has been filed against Emerald Investment,
Inc., et al. The case is styled as Joanna Zepeda, David Benton
Boots, individually and on behalf of all, others similarly situated
v. Emerald Investment, Inc., Does 1-10, Case No.
34-2022-00319721-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., May
11, 2022).
The case type is stated as "Other Employment - Civil Unlimited."
Emerald Investment -- https://www.emeraldinvestments.in/ -- is a
private family office founded by Alan McIntosh in 2012. Emerald's
proprietary capital base enables a broad approach to
investing.[BN]
The Plaintiffs are represented by:
Kane Moon, Esq.
MOON & YANG, APC
1055 W 7th St., Ste. 1880
Los Angeles, CA 90017-2529
Phone: 213-232-3128
Fax: 213-232-3125
Email: kane.moon@moonyanglaw.com
ENCORE CAPITAL: Wins Bid for Summary Judgment in Williams Suit
--------------------------------------------------------------
In the case, LLOYD WILLIAMS, on behalf of himself and all others
similarly situated, Plaintiff v. ENCORE CAPITAL GROUP, INC., et
al., Defendants, Civil No. 2:19-cv-05252-JMG (E.D. Pa.), Judge John
M. Gallagher of the U.S. District Court for the Eastern District of
Pennsylvania grants the Defendants' motion for summary judgment.
I. Introduction
The Plaintiff obtained a credit card from Comenity Capital Bank.
This credit card charged an interest rate that would ordinarily be
considered usurious and unlawful in Pennsylvania, which is where
the Plaintiff resides. But Comenity is a state-chartered, federally
insured bank within the purview of the Federal Deposit Insurance
Act and could, therefore, charge the Plaintiff interest exceeding
the limits imposed by Pennsylvania law.
Nothing in the preceding paragraph is controversial. Instead, the
dispute centers on what happened after the Defendants obtained the
Plaintiff's credit card account from Comenity and attempted to
collect on the Plaintiff's debt. The Plaintiff insists that the
Defendants lacked authority to collect the debt because the
Defendants are not themselves the types of institutions federal law
authorizes to disregard state usury laws. The Defendants argue that
they may collect the debt because the debt was "valid when made"
and cannot become usurious upon assignment.
II. Background
Comenity is a bank chartered under Utah law and insured by the
Federal Deposit Insurance Corporation ("FDIC"). Comenity issued a
credit card to the Plaintiff, and this credit card charged between
24.99% and 25.99% annual interest. Over time, the Plaintiff fell
behind on his credit card payments. Comenity closed the Plaintiff's
account, charged it off, and sold the account to the Defendants.
After acquiring the Plaintiff's account, the Defendants made
various efforts to collect on the Plaintiff's debt. Unlike
Comenity, the Defendants are not state-chartered, federally insured
banks.
In response to Defendants' efforts to collect on his debt, the
Plaintiff filed the lawsuit in federal court claiming that the
Defendants lack authority to collect a portion of his debt and that
the Defendants' efforts to collect that portion violate
Pennsylvania and federal law. The Plaintiff brought this lawsuit as
a putative class action on behalf of himself and other Pennsylvania
residents from whom the Defendants have attempted to collect debt.
After holding a conference with counsel, the Court instructed the
parties to complete discovery related to class certification and
the merits of the Plaintiff's individual claims. The parties have
now completed that discovery. The Plaintiff has moved for class
certification and partial summary judgment, and the Defendants have
moved for total summary judgment.
The parties' motions for summary judgment are presently before the
Court. Because the Court finds the Defendants' motion dispositive
of all the Plaintiff's claims, the Court will not proceed to
address the Plaintiff's motions for partial summary judgment or
class certification.
III. Analysis
The central issue in the case is whether Pennsylvania's Loan
Interest and Protection Law (the "LIPL") applies to the Defendants'
attempts to collect the Plaintiff's debt. If the LIPL does not
apply, then the Plaintiff agrees that all his claims must fail.
The LIPL is Pennsylvania's usury statute. It establishes that,
subject to certain exceptions, the "maximum lawful rate of interest
for the loan or use of money of fifty thousand dollars or less will
be six per cent per annum." When a debtor is made to pay interest
exceeding this maximum rate, the LIPL authorizes the debtor to sue
and recover treble damages. Being a creature of state law, however,
the LIPL cannot apply when its application is preempted by federal
law.
In the case, Judge Gallagher opines that the LIPL is preempted from
applying to the Defendants' attempts to collect on the Plaintiff's
account by the Federal Deposit Insurance Act (the "FDIA"). Under
the FDIA, a state-chartered, federally insured bank may ignore
state usury laws when issuing loans. The FDIA does not expressly
address whether the assignee of a state-chartered, federally
insured bank's loan may disregard state usury laws when collecting
on the assigned loan. But the FDIC recently issued a final rule
clarifying this issue.
Under the FDIC's rule, it is clear that the FDIA preempts the LIPL
from applying to Defendants' attempts to collect on Plaintiff's
account. In light of section 27 of the FDIA and precedents such as
Greenwood and Community Bank of Northern Virginia interpreting that
provision, it is indisputable that Comenity, as a state-chartered,
federally insured bank, was permitted to collect interest exceeding
the LIPL's limitations on the loan Comenity made to Plaintiff.
Accordingly, the loan was not usurious when it was originated.
And under the FDIC's rule, the loan could not have become usurious
upon its assignment to the Defendants. The Defendants must be
permitted to collect interest on the loan to the same extent
Comenity could have despite the LIPL's limitations.
The Plaintiff does not argue that the FDIC's rule is invalid or
otherwise undeserving of deference -- instead, he argues that the
FDIC's rule carves out an exception for laws like the LIPL.
Specifically, he points to language in the FDIC's final rule
providing that the rule does not "address or affect the broader
licensing or regulatory requirements that apply to banks and
non-banks under applicable State law." The Plaintiff argues this
language means the FDIC did not intend to displace statutes like
the LIPL.
But Judge Gallagher is unpersuaded. First, it is clear that the
LIPL is not a "licensing" requirement. No provision of the LIPL
requires a creditor to obtain a license before collecting on debts.
Nor can the LIPL be fit into the exception for other "regulatory
requirements." If the LIPL could fit the FDIC's rule's exception,
then the exception would swallow the rule.
Judge Gallagher emphasizes that its holding in this case is
relatively narrow. He holds only that the FDIA, as it has been
interpreted by the FDIC, preempts the LIPL's application to an
assignee's efforts to collect on a loan that was legally originated
by a state chartered, federally insured bank. He expresses no
opinion as to whether the LIPL would be preempted under the
National Bank Act, the Home Owners' Loan Act, or the Office of the
Comptroller of the Currency's recent rule interpreting those
statutes.
Further, Judge Gallagher's holding relies specifically upon the
FDIC's recent final rule interpreting the FDIA. Were that
regulation to be rescinded or found invalid upon a proper
challenge, then the Third Circuit's decision in Community Bank of
Northern Virginia would likely dictate a different result. On the
specific facts of the case, however, and under the law as it exists
today, Judge Gallagher must enter summary judgment in favor of the
Defendants.
IV. Conclusion
Judge Gallagher concludes that the FDIA, as interpreted by the FDIC
in a recently promulgated final rule, preempts the LIPL from
applying to the Defendants' efforts to collect on a legally issued
loan they acquired from a state-chartered, federally insured bank.
Accordingly, he holds that the Defendants are entitled to summary
judgment on all counts as a matter of law.
A full-text copy of the Court's May 6, 2022 Memorandum Opinion is
available at https://tinyurl.com/5n78hpvc from Leagle.com.
EXPERIAN INFORMATION: Hill-Green Files Suit in D. Nebraska
----------------------------------------------------------
A class action lawsuit has been filed against Experian Information
Solutions, Inc. The case is styled as Lisa Hill-Green, on behalf of
herself and others similarly situated v. Experian Information
Solutions, Inc., Defendant; Data Axle, Inc. Case No. 8:22-cv-00180
(D. Neb., May 13, 2022).
The nature of suit is stated as Motion to Quash Third Party
Subpoena.
Experian Information Solutions --
https://www.experian.com/corporate/ -- is a global leader in
consumer and business credit reporting and marketing services.[BN]
The Plaintiffs appears pro se.
The Movant is represented by:
Cody B. Nickel, Esq.
Gregory C. Scaglione, Esq.
KOLEY, JESSEN LAW FIRM
1125 South 103rd Street, Suite 800, One Pacific Place
Omaha, NE 68124
Phone: (402) 343-3857
Email: cody.nickel@koleyjessen.com
greg.scaglione@koleyjessen.com
FAMILY FOODS INC: Chalas Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Family Foods, Inc.
The case is styled as Ana Chalas, individually, and on behalf of
all others similarly situated v. Family Foods, Inc., Case No.
1:22-cv-03892-JMF (S.D.N.Y., May 12, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Family Foods, Inc. -- http://www.familyfoodsstores.com/-- is
located in Paramount, California and is part of the Grocery Stores
Industry.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
FEDEX OFFICE & PRINT: Fleissner Files Suit in Cal. Super. Ct.
-------------------------------------------------------------
A class action lawsuit has been filed against FedEx Office & Print
Services, Inc., et al. The case is styled as Kaelyn Fleissner, on
behalf of herself and all those similarly situated v. FedEx Office
& Print Services, Inc., Does 1-50, Case No.
34-2022-00319739-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., May
11, 2022).
The case type is stated as "Other Employment - Civil Unlimited."
FedEx Office Print & Ship Services Inc. --
https://www.fedex.com/en-us/printing.html -- is an American retail
chain that provides an outlet for FedEx Express and FedEx Ground
shipping, as well as copying, printing, marketing, office services
and shipping.[BN]
The Plaintiff is represented by:
Jennifer Lin Liu, Esq.
LIU PETERSON-FISHER LLP
800 Menlo Ave., Ste. 102
Menlo Park, CA 94025-4732
Phone: 650-461-9000
Fax: 650-460-6967
Email: jliu@liupetersonfisher.com
FFE TRANSPORTATION: Settlement Deal in Thomas Suit Gets Initial Nod
-------------------------------------------------------------------
In the class action lawsuit captioned as DENNIS THOMAS, on behalf
of himself and others similarly situated, v. FFE TRANSPORTATION
SERVICES, INC., a Delaware Corporation, and DOES 1 through 10, Case
No. 2:19-cv-00062-JAM-CKD (E.D. Cal.), the Parties ask the Court to
enter an order:
1. Granting preliminary approval of the Class Action
Settlement Agreement and Release of Claims between
Plaintiff and Defendant;
2. Granting provisional certification of the Class for
settlement purposes;
3. Provisionally appointing Plaintiff, Dennis Thomas, as
Class Representative;
4. Provisionally appointing Costa Kerestenzis and Sarah
Kanbar of Beeson, Tayer & Bodine, PC as Class Counsel;
5. Appointing Simpluris to serve as the Settlement
Administrator and approving the Notice Plan that has been
provided;
6. Approving the Notice, attached as Exhibit 1 to the
Settlement Agreement;
7. Directing Simpluris to effectuate the Notice Process,
including mailing Notice to Class Members.
8. Scheduling a Final Approval Hearing, at which time the
Court will also consider whether to grant final approval
of Plaintiff's requests for Attorney Fees and Costs, a
Service Payment to the Plaintiff as Class Representative,
and Settlement Administration Costs; and
9. Imposing an interim stay of the proceedings while the
parties effectuate the terms of the settlement and seek
Final Court of Approval of the settlement.
FFE is the primary operating subsidiary of Frozen Food Express
Services, Inc. The company is a Lancaster, Texas based
temperature-controlled transportation company founded in 1943. It
provides temperature controlled transportation services for
over-the-road transportation.
A copy of the Plaintiff's motion to certify class dated April 29,
2022 is available from PacerMonitor.com at https://bit.ly/3lfSilk
at no extra charge.[CC]
The Plaintiff is represented by:
Costa kerestenzis, Esq.
Sarah S. Kanbar, Esq.
BEESON, TAYER & BODINE, APC
520 Capitol Mall, Suite 300
Sacramento, CA 95814-4714
Telephone: (916) 325-2100
Facsimile: (916) 325-2120
E-mail: CKerestenzis@beesontayer.com
SKanbar@beesontayer.com
The Defendant is represented by:
David S. Binder, Esq.
BINDER AND KALIOUNDJI, LLP
20944 Sherman Way, Suite 215
Canoga Park, CA 91303
Telephone: (818) 479-7679
Facsimile: (818) 479-7690
E-Mail: david@binderkal.com
FIRST CLASS: Bid to Decertify Class in Martinez FLSA Suit Denied
----------------------------------------------------------------
In the case, DANIEL ALVARADO MARTINEZ, et al., Plaintiffs v. FIRST
CLASS INTERIORS OF NAPLES, LLC, et al, Defendants, Case No.
3:18-cv-00583 (M.D. Tenn.), Judge Eli Richardson of the U.S.
District Court for the Middle District of Tennessee, Nashville
Division, issued a Memorandum Opinion:
a. denying Mr. Drywall Services, LLC ("MRD")'s Motion to
Decertify Case as a Collective Action;
b. denying MRD's Motion for Summary Judgment; and
c. granting in part and denying in part the Plaintiffs' Motion
for Summary Judgment.
I. Background
The Plaintiffs in the action under the Fair Labor Standards Act
("FLSA") are individuals who performed drywall installation,
framing, and finishing on the JW Marriott Hotel recently
constructed in downtown Nashville, Tennessee. Defendant MRD
contracted to complete the drywall portion of the Marriott
project.
MRD provides drywall hanging and interior finishing services to
other construction contractors for commercial and residential
projects. Raymond Philibert, and AC Florida Inc., are the owners of
MRD. FCI is a Florida limited liability company that provides labor
to subcontracting companies. MRD and FCI are separate entities and
have never had common ownership or management. Additionally, MRD
does not share any workers, bank accounts, or addresses with FCI,
and vice versa.
Skanska USA Building, Inc., the general contractor for the
construction of the Nashville JW Marriot Hotel, contracted with MRD
-- along with other drywall contractors -- to complete the drywall
portion of the Project. In February 2017, MRD entered into a
subcontract with FCI ("FCI Subcontract") under which FCI would
provide the labor necessary to perform and complete the scope of
the work set forth in the FCI Subcontract, including drywall
framing, installation, and finishing.
Additionally, MRD subcontracted with three other companies to
provide labor, services, and materials for the Project. MRD and the
Plaintiffs disagree about whether FCI provided tools to workers on
the Project. It is undisputed that MRD charged FCI for equipment
and water that MRD provided to FCI and the workers. The Plaintiffs
all worked on the Project.
In this conditionally certified collective action with two opt-in
classes, the Plaintiffs allege that the Defendants' policies and
practices violated the minimum wage and overtime provisions of the
FLSA. Specifically, they allege that the Defendants failed to pay
them and the members of the Overtime Class one and one-half times
their regular hourly rate for all hours worked in excess of 40
hours per week during the relevant period.
The Plaintiffs also allege that the Defendants failed to pay them
and the members of the Overtime Class the federal minimum wage for
all hours worked after clocking in, including hours spent attending
safety meetings and performing other such work. They allege that
the Defendants failed to pay Plaintiffs Castro and Martinez, and
the members of the Last Paycheck Class, for what turned out to be
the Plaintiffs' final two weeks of employment. The Plaintiffs
further claim that after members of the Last Paycheck Class
requested their wages, Defendants FCI and Jose Roberto Reyes
terminated those drywall workers in violation of the FLSA's
antiretaliation provision.
On Sept. 6, 2019, the Court conditionally certified the matter as a
collective action consisting of the following classes:
a. The Overtime Class will consist of all workers who were
employed by the Defendants performing drywall installation,
framing, and/or finishing work on the Marriott Project at any time
between July 2017 and May 2018.
b. The Last Paycheck Class will consist of all workers who
were employed by the Defendants performing drywall installation,
framing, and/or finishing work on the Marriott Project whose
employment was terminated at any time between May 21 and May 29,
2018.
The Court granted a Joint Motion to Dismiss Counts III and IV of
the Complaint on May 4, 2021, leaving the Plaintiffs' claims for
violations of the FLSA (Count I) and FLSA retaliation (Count II) as
the only remaining claims. MRD then filed unopposed motions to
dismiss Opt-In Plaintiff Karen Flores and Plaintiff Daniel Alvarado
Martinez, respectively. The Court granted the motions to dismiss
Plaintiff Flores and Plaintiff Martinez, respectively, on March 25,
2021, leaving four remaining Named Plaintiffs and 110 remaining
Opt-In Plaintiffs.
On April 27, 2020, the Plaintiffs filed a Motion for Summary
Judgment along with a Memorandum in Support and a Statement of
Undisputed Facts. MRD filed a Response to the Motion for Summary
Judgment and a Response to the Statement of Undisputed Facts. The
Plaintiffs replied to both Responses.
On May 21, 2021, MRD filed a Motion for Summary Judgment along with
a Memorandum in Support and a Statement of Undisputed Facts. The
Plaintiffs filed a Response to the Motion for Summary Judgment and
a Response to the Statement of Undisputed Facts. MRD filed a Reply
to the Response to the Motion for Summary Judgment.
Also on May 21, 2021, MRD filed a Motion to Decertify along with a
Memorandum in Support. The Plaintiffs responded. MRD thereafter
replied.
FCI made no filings in response or in relation to any of the
foregoing motions.
II. Analysis
A. MRD's Motion to Decertify
MRD moves to decertify this matter "as to MRD" because: (1) the
evidence and the record demonstrate that MRD was not the statutory
or joint employer of the Plaintiffs; (2) differences in several
aspects of the factual and employment settings of the Plaintiffs
weigh in favor of decertification; (3) the Plaintiffs are subject
to various individualized defenses; (4) fairness and procedural
considerations weigh in favor of decertification; and (5) there is
no evidence of a single decision, policy, or plan that MRD applied
to Plaintiffs in violation of the FLSA.
The Plaintiffs' response rests on the self-defeating nature of
MRD's argument: MRD's primary argument in support of
decertification is that -- across the board -- MRD is not the
Plaintiffs' statutory or joint employer. However, this argument is
self-defeating as to decertification as it is premised on the
assumption that the Plaintiffs are all similarly situated. MRD does
not argue that it is the statutory employer of some Plaintiffs but
not of others. Instead, MRD argues that the Plaintiffs are so
similar to each other in their work on the Project that the Court
may make a determination as to MRD's liability on a collective
basis.
In O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 584-585 (6th
Cir. 2009), the Sixth Circuit commented on the definition of
"similarly situated" for purposes of a collective-action
certification decision and "tacitly approved," three factors that a
district court may employ when using its discretion to determine
whether certification is appropriate: "The Fair Labor Standards Act
does not define similarly situated, and neither has this court.
However, district courts have based their final-certification
decisions on a variety of factors, including the factual and
employment settings of the individual plaintiffs, the different
defenses to which the plaintiffs may be subject on an individual
basis, and the degree of fairness and procedural impact of
certifying the action as a collective action. The lead plaintiffs
bear the burden of showing that the opt-in plaintiffs are similarly
situated to the lead plaintiffs.
Judge Richardson opines that the determination of whether to grant
a motion to decertify lies within the discretion of the Court.
Viewing together the non-comprehensive factors from the Sixth
Circuit's opinion in O'Brien, he finds in his discretion that the
Motion to Decertify should be denied because the Plaintiffs are
similarly situated (and, in particular, because the record supports
their allegation that they suffered from a common, FLSA-violating
policy).
B. MRD's Motion for Summary Judgment
MRD's Motion for Summary Judgment presents a single argument: That
MRD is entitled to judgment as a matter of law because the record
does not raise a genuine issue of material fact as to whether MRD
was the Plaintiffs' employer, which is to say that the record
reveals that no reasonable jury could find that MRD was the
Plaintiffs' employer. The Plaintiffs respond by arguing that "the
undisputed facts show the existence of an employer-employee
relationship between the Plaintiffs and each Defendant."
Judge Richardson explains that the remedial purposes of the FLSA
require the courts to define 'employer' more broadly than the term
would be interpreted in traditional common law applications." The
circuit precedent maintains that 'in deciding whether a party is an
employer, 'economic reality' controls rather than common law
concepts of agency.'" Sixth Circuit cases indicate that the
economic reality test "considers the alleged employer's power to
hire and fire the person, supervision and control of schedules and
conditions of employment, determination of the rate and method of
payment and the maintenance of employment records." Additional
relevant factors include "whether the plaintiff is an integral part
of the operations of the putative employer," "the extent of the
plaintiff's economic dependence on the defendant," and "the
defendant's substantial control of the terms and conditions of the
work of the plaintiff."
Of the seven factors considered, Judge Richardson finds a genuine
dispute of fact with respect to five of them, and finds that the
other two factors -- namely, the Defendant's maintenance of
employment records and whether the Plaintiff is an integral part of
the putative employer's operations -- favor the existence of an
employer-employee relationship. Under these circumstances, the
cumulative effect of these factual disputes is material -- i.e.,
their cumulative resolution would affect the outcome of the suit
under the governing substantive law.
In other words, evidence concerning the economic realities of MRD's
relationship with the Plaintiffs is sufficient for a reasonable
jury to find an employment relationship, and so Judge Richardson
finds that the record raises a genuine issue of material fact as to
whether MRD was the Plaintiffs' employer. Therefore, MRD's Motion
for Summary Judgment will be denied.
C. Plaintiffs' Motion for Summary Judgment
The Plaintiffs seek summary judgment as to 1) the Plaintiffs' class
claims (Count I); 2) Named Plaintiff Castro's individual
retaliation claim (Count II); and 3) the amount of average weekly
damages. While both FCI and MRD are subjects of this Motion, only
MRD has responded.
First, Judge Richardson finds that after reviewing the Plaintiffs'
Motion, accompanying memorandum, Statement of Undisputed Facts, and
other applicable filings, he finds that the facts (which are deemed
undisputed as to FCI for purposes of the Plaintiffs' Motion)
demonstrate that summary judgment should be granted as to FCI on
the Plaintiffs' class claims. The Plaintiffs have carried their
initial burden of showing that (1) they were employed by FCI, (2)
the activities at issue were within the coverage of the FLSA, and
(3) FCI failed to pay overtime compensation to Plaintiffs as
required by law.
FCI has not shown otherwise or contested these findings. Had FCI
responded to the Plaintiffs' motion and presented countervailing
evidence, as MRD did, FCI conceivably could have established a
genuine dispute as to the existence of one or more of these
elements. But FCI did not do so. Therefore, the Plaintiffs' Motion
will be granted as to FCI for the claims brought against it on a
class-wide basis under the FLSA.
Next, Judge Richardson holds that regardless of whether the adverse
employment action at issue is Castro's termination or the denial of
his wages, or both, summary judgment will not be granted on the
retaliation claim. He finds that Castro still has not met his
initial burden to show the absence of a genuine dispute as to a
causal connection between the protected activity and the
withholding of wages. The evidence of record suggests a reasonable
likelihood that the Defendants would have refused to give Castro
his paycheck regardless of whether he demanded the payment owed on
May 29, 2018. That is to say, it is likely FCI simply was not going
to provide the paycheck and that Castro merely confirmed (rather
than caused) that fact when he demanded his paycheck to no avail.
Lastly, Judge Richardson declines to find a lack of a genuine issue
of material fact on the issue of damages because the Defendants'
liability is still not decided. He says, a genuine dispute of
material fact exists as to MRD's liability for the class claims and
as to FCI's liability for the individual retaliation claims. It
would thus be premature for the Court to determine whether there is
no genuine issue of material fact on the question of damages when
liability has yet to be determined (except insofar as FCI's
liability on Count I). It's appropriate to reserve for trial the
issue of damages. Thus, Judge Richardson will deny the Plaintiffs'
motion as it relates to the calculation of damages.
III. Conclusion
For the reasons he discussed, Judge Richardson denied MRD's Motion
to Decertify and Motion for Summary Judgment. He granted in part
and denied in part the Plaintiffs' Motion for Summary Judgment. He
granted summary judgment to the Plaintiffs on Count I as to FCI. He
denied summary judgment to the Plaintiffs on Count I as to MRD, on
Count II as to FCI, and as to all Defendants on the issue of
damages.
An appropriate order will be entered.
A full-text copy of the Court's May 6, 2022 Memorandum Opinion is
available at https://tinyurl.com/4nbcxrr3 from Leagle.com.
FIRST PREMIER: Moss Seeks to Certify Class
------------------------------------------
In the class action lawsuit captioned as DEBORAH MOSS, on Behalf of
Herself and All Others Similarly Situated, v. FIRST PREMIER BANK, a
South Dakota-Chartered Bank, Case No. 2:13-cv-05438-ERK-PK
(E.D.N.Y.), the Plaintiff asks the Court to enter an order:
1. certifying a plaintiff class consisting of:
"All persons [1] whose bank accounts were debited via an
ACH entry from September 30, 2009 to October 30, 2010; [2]
in which First Premier Bank was the "Originating
Depository Financial Institution" ("ODFI"); [3] and the
debit was in repayment of a loan made by an entity doing
business as "500 Fast Cash," "Ameriloan," "One Click
Cash," "United Cash Loans," or "US Fast Cash" (or any
alternative spelling thereof); and [4] such person resided
in Arizona, Arkansas, Connecticut, Maryland,
Massachusetts, Montana, New Jersey, New York, North
Carolina, Ohio, Pennsylvania, Vermont, or the District of
Columbia on the date the loan was funded;"
The Class will pursue claims against Defendant First
Premier Bank for violations of 18 U.S.C. section 1963(d)
of the Racketeer Influenced and Corrupt Organizations Act
("RICO");
2. appointing her as Class Representative on behalf of the
Class;
3. appointing Darren Kaplan and Gregory Keller of Kaplan Gore
LLP; Hassan Zavareei and Kristen Simplicio of Tycko &
Zavareei LLP; and Jonathan Streisfeld and Jason Alperstein
of Kopelowitz Ostrow, P.A. as class counsel;
4. directing that notice to Class Members be coordinated with
the Federal Trade Commission consistent with the Privacy
Act of 1974 as set forth in paragraphs 20-26 of the
Kappler Declaration; and
5. granting such other and further relief as the Court deems
just and proper.
First Premier, headquartered in Sioux Falls, South Dakota, is an
issuer of MasterCard brand credit cards in the United States. The
bank is known for specializing in a wide range of subprime credit
cards that are marketed to individuals with low credit scores.
A copy of the Plaintiff's motion to certify class dated April 29,
2022 is available from PacerMonitor.com at https://bit.ly/3NcSwpm
at no extra charge.[CC]
The Plaintiff is represented by:
Darren T. Kaplan, Esq.
Gregory E. Keller, Esq.
KAPLAN GORE LLP
1979 Marcus Ave., Suite 210
Lake Success, NY 11042
Telephone: (212) 999-7370
Facsimile: (404) 537-3320
E-mail: dkaplan@kaplangore.com
gkeller@kaplangore.com
- and -
Hassan A. Zavareei, Esq.
Kristen Simplicio, Esq.
Lauren Kuhlik, Esq.
TYCKO & ZAVAREEI LLP
2000 L Street, N.W., Suite 808
Washington, D.C. 20036
Telephone: (202) 973-0900
Facsimile: (202) 973-0950
E-mail: hzavareei@tzlegal.com
ksimplicio@tzlegal.com
lkuhlik@tzlegal.com
- and -
Jeffrey M. Ostrow, Esq.
Jonathan M. Streisfeld, Esq.
Jason H. Alperstein, Esq.
KOPELOWITZ OSTROW P.A.
1 West Las Olas Blvd., Suite 500
Fort Lauderdale, FL 33301
Telephone: (954) 525-4100
Facsimile: (954) 525-4300
E-mail: ostrow@kolawyers.com
streisfeld@kolawyers.com
alperstein@kolawyers.com
FOREVER B LLC: Chalas Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Forever B, LLC. The
case is styled as Ana Chalas, individually, and on behalf of all
others similarly situated v. Forever B, LLC, Case No. 1:22-cv-03953
(S.D.N.Y., May 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Forever B, LLC is located in Durham, North Carolina and is part of
the Bakeries and Tortilla Manufacturing Industry.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
FREEDOM BOAT: Faces Echevarria Suit Over Unwanted Text Messages
---------------------------------------------------------------
JONATHAN ECHEVARRIA, individually and on behalf of all others
similarly situated v. FREEDOM BOAT CLUB, LLC, Case No.
0:22-cv-60919 (S.D. Fla., May 13, 2022) contends that the Defendant
promotes and markets its merchandise, in part, by sending
unsolicited text messages to wireless phone users, in violation of
the Telephone Consumer Protection Act.
The Defendant allegedly engages in telemarketing without the
requisite policies and procedures and training required under the
TCPA and its implementing regulations.
The Plaintiff never provided Defendant with express written consent
authorizing the Defendant to transmit telephonic sales calls to
Plaintiff's cellular telephone number utilizing an automated system
for the selection and dialing of telephone numbers. More
specifically, the Plaintiff never signed any type of authorization
permitting or allowing the placement of a telephonic sales call by
text message using an automated system for the selection and
dialing of telephone numbers, the lawsuit adds.
Freedom Boat Club is a members-only boat club in the United States,
Europe and Canada and is considered the largest marine Franchisor
in the US.[BN]
The Plaintiff is represented by:
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Boulevard, Suite 1400
Ft. Lauderdale, FL 33301
E-mail: mhiraldo@hiraldolaw.com
Telephone: (954) 400.4713
- and -
Jibrael S. Hindi, Esq.
THE LAW OFFICES OF JIBRAEL S. HINDI
110 SE 6th Street, Suite 1744
Ft. Lauderdale, FL 33301
FUNDING METRICS: Korie Files TCPA Suit in S.D. Florida
------------------------------------------------------
A class action lawsuit has been filed against Funding Metrics, LLC.
The case is styled as Ifeanyi Korie, individually and on behalf of
all others similarly situated v. Funding Metrics, LLC d/b/a
Lendini, Case No. 1:22-cv-21458-XXXX (S.D. Fla., May 11, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Funding Metrics -- https://www.fundingmetrics.com/ -- is a
financial consultant in Bensalem, Pennsylvania, a powerhouse of
efficiency and analysis.[BN]
The Plaintiffs are represented by:
Joshua Michael Gross, Esq.
LAMCHICK LAW GROUP
6910 North Kendall Drive
Miami, FL 33156
Phone: (305) 670-4455
Email: jgross@jmglawgroup.com
GEICO: Biscardi, et al Seek FLSA Conditional Certification
----------------------------------------------------------
In the class action lawsuit captioned as BRIDGET BISCARDI, CRAIG
NEIDLINGER, STEPHANIE KOONTZ and COLBY CHARRIER, on behalf of
themselves and all others similarly situated, V. GOVERNMENT
EMPLOYEES INSURANCE COMPANY, d/b/a GEICO, a Maryland corporation,
Case No. 8:21-cv-02240-GJH (D. Md.), the Plaintiffs Bridget
Biscardi, Craig Neidlinger, and Stephanie Koontz, individually and
on behalf of all non-exempt Auto Claim and/or Damage Adjusters
employed by GEICO throughout the United States (with the exception
of those employed in California, Florida, Massachusetts, New
Jersey, New York, North Carolina, Ohio, and Pennsylvania) at any
time from August 31, 2018 to the present move the Court for
Conditional Certification.
The Government Employees Insurance Company is a private American
auto insurance company with headquarters in Chevy Chase, Maryland.
It is the second largest auto insurer in the United States, after
State Farm.
A copy of the Plaintiffs' motion dated April 29, 2022 is available
from PacerMonitor.com at https://bit.ly/3FOP4Pt at no extra
charge.[CC]
The Plaintiffs are represented by:
Gregg I. Shavitz, Esq.
Tamra Givens, Esq.
SHAVITZ LAW GROUP, P.A.
951 Yamato Road, Suite 285
Boca Raton, FL 33431
Telephone: (561) 447-8888
Facsimile: (561) 447-8831
E-mail: gshavitz@shavitzlaw.com
tgivens@shavitzlaw.com
- and -
Michael J. Palitz, Esq.
SHAVITZ LAW GROUP, P.A.
477 Madison Avenue, 6 th Floor
New York, NY 10022
Telephone: (800) 616-4000
Facsimile: (561) 447-8831
E-mail: mpalitz@shavitzlaw.com
- and -
Carolyn H. Cottrell, Esq.
David C. Leimbach, Esq.
Brett D. Watson, Esq.
SCHNEIDER WALLACE COTTRELL
KONECKY, LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
Facsimile: (415) 421-7105
E-mail: ccottrell@schneiderwallace.com
dleimbach@schneiderwallace.com
bwatson@schneiderwallace.com
GENEVA SUPER ARMY: Maddy Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Geneva Super Army &
Navy Store, Inc. The case is styled as Veronica Maddy, on behalf of
herself and all others similarly situated v. Geneva Super Army &
Navy Store, Inc. d/b/a Super Casuals, Case No. 1:22-cv-03938
(S.D.N.Y., May 14, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Geneva Super Army & Navy Store, Inc. doing business as Super
Casuals -- https://www.supercasuals.com/ -- provides quality, brand
name work and casual clothing at the lowest price.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
GEORGIA: Court Denies Bid for Appointed Counsel in Foster v. Doe
----------------------------------------------------------------
Magistrate Judge Charles H. Weigle of the U.S. District Court for
the Middle District of Georgia, Macon Division, issued an order in
the lawsuit captioned JOHN MILES FOSTER, Plaintiff v. JOHN OR JANE
DOE, et al., Defendants, Case No. 5:22-CV-000129-TES-CHW (M.D.
Ga.):
(a) granting the Plaintiff's motion to proceed in forma
pauperis, and he will be ordered to pay an initial partial
filing fee; and
(b) denying the Plaintiff's motion for appointed counsel.
Presently pending before the Court is a complaint filed by pro se
Plaintiff John Miles Foster, an inmate currently incarcerated at
the Washington State Prison in Davisboro, Georgia.
Motion to Proceed In Forma Pauperis
The Plaintiff first seeks leave to proceed without prepayment of
the filing fee or security therefor pursuant to 28 U.S.C. Section
1915(a). As it appears that the Plaintiff is unable to pay the cost
of commencing this action, his application to proceed in forma
pauperis is granted, Judge Weigle ruled. The Judge explains that
even if a prisoner is allowed to proceed in forma pauperis,
however, he must still pay the full amount of the $350 filing fee
in installments based on funds in the prisoner's account. A review
of the Plaintiff's account certification shows an average monthly
balance of $224.02, a present spendable balance of $331.35, and
regular deposits to his account. Twenty percent of $224.02 is
$44.80. The Plaintiff is, therefore, ordered to pay an initial
partial filing fee of $44.80.
Following payment of the initial partial filing fee, money will be
deducted from the Plaintiff's account until the filing fee
($350.00) is paid in full as set forth in Section 1915(b), Judge
Weigle holds. It is, accordingly, directed that the Clerk forward a
copy of this Order to the business manager of the facility in which
the Plaintiff is incarcerated so that withdrawals from his account
may commence as payment towards the filing fee. The district
court's filing fee is not refundable, regardless of the outcome of
the case, and must, therefore, be paid in full even if the
Plaintiff's complaint (or any part thereof) is dismissed prior to
service.
I. Directions to the Plaintiff's Custodian
Judge Weigle orders that the warden of the institution wherein the
Plaintiff is incarcerated, or the sheriff of any county wherein he
is held in custody, and any successor custodians, each month cause
to be remitted to the Clerk of this Court twenty percent (20%) of
the preceding month's income credited to the Plaintiff's account at
said institution until the $350 filing fee has been paid in full.
In accordance with provisions of the Prison Litigation Reform Act
("PLRA"), the Plaintiff's custodian is authorized to forward
payments from the prisoner's account to the Clerk of Court each
month until the filing fee is paid in full, provided the amount in
the account exceeds $10. It is further ordered that collection of
monthly payments from the Plaintiff's trust fund account will
continue until the entire $350 has been collected, notwithstanding
the dismissal of the Plaintiff's lawsuit (or any part thereof) or
the granting of judgment against him prior to the collection of the
full filing fee.
II. Plaintiff's Obligations on Release
Judge Weigle notes that an individual's release from prison does
not excuse his prior noncompliance with the provisions of the PLRA.
In the event the Plaintiff is thereafter released from the custody
of the State of Georgia or any county thereof, he will remain
obligated to pay those installments justified by the income to his
prisoner trust account while he was still incarcerated. Collection
from the Plaintiff of any balance due on these payments by any
means permitted by law is authorized in the event the Plaintiff is
released from custody and fails to remit such payments. The
Plaintiff's Complaint is subject to dismissal if he has the ability
to make such payments and fails to do so or if he otherwise fails
to comply with the provisions of the PLRA.
The Plaintiff has 14 days from the date shown on this Order to pay
a partial filing fee of $44.80. If circumstances have changed and
the Plaintiff cannot pay the initial partial filing fee as ordered,
Plaintiff should file a renewed motion for leave to proceed in
forma pauperis, accompanied by an updated prison trust fund account
statement, explaining such change in circumstances within 14 days
of the date of this Order.
While the Plaintiff's custodian is ordered to make subsequent
payments on his behalf, the Plaintiff should note that it is his
responsibility to pay the initial partial filing fee. Thus, he must
make arrangements with the appropriate official to ensure that the
initial partial filing fee is paid in accordance with this order.
Thereafter, the Plaintiff's custodian will remit monthly payments
as set forth here.
Motion for Appointed Counsel
The Plaintiff has also filed a motion seeking appointed counsel. As
this is the Plaintiff's first request for counsel, the Court
advises him that appointment of counsel in a civil case is not a
constitutional right. Appointment of counsel is a privilege that is
justified only by exceptional circumstances. In deciding whether
legal counsel should be provided, the Court considers, among other
factors, the merits of the Plaintiff's claim and the complexity of
the issues presented (Holt v. Ford, 862 F.2d 850, 853 (11th Cir.
1989)).
In accordance with Holt, and upon a review of the record in this
case, the Court notes that the Plaintiff has set forth the
essential merits of his claims, and the applicable legal doctrines
are readily apparent. As such, the Plaintiff's motion for appointed
counsel is denied. Should it later become apparent that legal
assistance is required in order to avoid prejudice to the
Plaintiff's rights, the Court, on its own motion, will consider
assisting him in securing legal counsel at that time. Consequently,
there is no need for the Plaintiff to file additional requests for
counsel.
The Plaintiff states in his motion that this is a class action, as
it affects anyone who worked and paid into the Social Security Fund
enough to qualify for Retirement Benefits once full Retirement Age
is reached. The Court notes, however, that to the extent the
Plaintiff seeks to bring his claims as a class action on behalf of
his fellow inmates, a pro se Plaintiff may not represent the
interests of other prisoners.
Conclusion
To reiterate, the Plaintiff's motion to proceed in forma pauperis
is granted, and he will have 14 days to pay an initial partial
filing fee of $44.80 or submit a renewed motion for leave to
proceed in forma pauperis as described. Failure to fully and timely
comply with this Order will result in the dismissal of the
Plaintiff's Complaint.
In addition, the Plaintiff's motion for counsel is denied. The
Plaintiff is also reminded of his obligation to notify the Court in
writing of any change in his mailing address. There will be no
service of process until further order of the Court.
A full-text copy of the Court's Order dated May 2, 2022, is
available at https://tinyurl.com/kwm3pj8w from Leagle.com.
GMRG ACQ1: Palomo Suit Seeks Minimum Wages for Deliver Drivers
--------------------------------------------------------------
Tiffany Palomo, On behalf of herself and those similarly situated
v. GMRG ACQ1, LLC; Michael Cherney; Victor Heutz; Steve McDermott;
Chad Magner; Doe Corporation 1–10; John Doe 1–10, Case No.
2:22-cv-02181 (D. Kan., May 16, 2022) seeks appropriate monetary,
declaratory, and equitable relief based on the Defendants' willful
failure to compensate the Plaintiff and similarly situated
individuals with minimum wages as required by the Fair Labor
Standards Act, the Nebraska Wage and Hour Act, and the Nebraska
Wage Payment and Collection Act.
According to the complaint, instead of reimbursing their delivery
driver employees for the actual costs of the business use of their
vehicles or at the IRS standard business rate, Defendants have
violated the Fair Labor Standards Act and Nebraska's wage and hour
laws by using a flawed method to determine reimbursement rates that
provides such an unreasonably low rate that the drivers'
unreimbursed expenses cause their wages to fall below the
legally-mandated minimum wage for all hours worked.
The Defendants also improperly deducted the costs for work required
attire, including work shoes, from delivery drivers' paychecks.
This caused delivery drivers' wage rates to drop below minimum
wage. The Defendants repeatedly and willfully violated the Fair
Labor Standards Act and Nebraska law by failing to adequately
reimburse delivery drivers for their delivery-related expenses,
thereby failing to pay delivery drivers the legally mandated
minimum wages for all hours worked.
The Defendants operate approximately 145 Pizza Hut store locations
in nine states including Kansas, and Nebraska. The Defendants
operate approximately 2 Pizza Hut store locations in Nebraska (GMRG
Pizza Hut stores).
As part of their ownership and operation of the GMRG Pizza Hut
stores, the Defendants employ delivery drivers who use their own
automobiles to deliver pizza and other food items to their
customers.[BN]
The Plaintiff is represented by:
Daniel L. Doyle, Esq.
Robert A. Bruce, Esq.
DOYLE & ASSOCIATES LLC
748 Ann Ave.
Kansas City, KS 66101
Telephone: (913) 371-1930
Facsimile: (913) 371-0147
E-mail: d.doyle@ddoylelaw.com
r.bruce@ddoylelaw.com
- and -
Andrew R. Biller, Esq.
Andrew P. Kimble, Esq.
Laura E. Farmwald, Esq.
BILLER & KIMBLE, LLC
www.billerkimble.com
8044 Montgomery Rd., Ste. 515
Cincinnati, OH 45236
Telephone: (513) 715-8712
Facsimile: (614) 340-4620
E-mail: abiller@billerkimble.com
akimble@billerkimble.com
lfarmwald@billerkimble.com
GNOMISH HAT: Abreu Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Gnomish Hat, Inc. The
case is styled as Luigi Abreu, individually, and on behalf of all
others similarly situated v. Gnomish Hat, Inc., Case No.
1:22-cv-03946 (S.D.N.Y., May 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Gnomish Hat -- https://gnomishhat.com/ -- is a full-service
creative and interactive storytelling company that builds highly
engaged communities through the formation of immersive subscription
services, podcasts, premium content platforms, films, TV, books and
more.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
GOAUTO INSURANCE: 5th Cir. Affirms Remand of Turner Class Suit
--------------------------------------------------------------
In the lawsuit styled ROBERT MARK TURNER, Individually and on
behalf of others similarly situated, Plaintiff-Appellee v. GoAUTO
INSURANCE COMPANY, Defendant-Appellant, Case No. 22-30103 (5th
Cir.), the United States Court of Appeals for the Fifth Circuit
affirms the district court's order remanding the underlying case to
Louisiana state court.
I.
On Jan. 28, 2019, Turner filed a petition for damages in the 19th
Judicial District Court in East Baton Rouge Parish. Turner totaled
his car in an accident and alleged that GoAuto, his car insurance
carrier, paid less in policy benefits than his policy and Louisiana
law required. After significant pretrial litigation, Turner amended
his complaint and transformed his suit into a class action. Several
months after that amendment, Turner filed a motion to certify his
class action in Louisiana. Eventually, Turner filed an additional
memorandum that stipulated that there were more than 3,000 class
members and that each member would recover at minimum $5,000.
Twenty-three days later, GoAuto filed a notice of removal to
federal court under the Class Action Fairness Act.
Two days before GoAuto filed its notice of removal, Turner had
received permission from the Louisiana court to amend his complaint
again and, as accepted on appeal, filed the amended complaint. This
amendment, inter alia, changed the definition of the class from
class "residents of Louisiana" to class "citizens of Louisiana."
After removal, the parties filed several competing motions
disputing which complaint controlled and the sufficiency of
GoAuto's notice of removal. Eventually, the district court granted
Turner's motion to remand the case, holding that GoAuto could not
demonstrate the minimal diversity necessary for subject-matter
jurisdiction. GoAuto now appeals.
II.
The Court of Appeals reviews a district court's order to remand a
suit removed pursuant to the Class Action Fairness Act (the Act) de
novo.
GoAuto asserts that it has demonstrated minimal diversity and that
both the magistrate judge and the district court that presided over
this case essentially ignored the facts showing diversity. GoAuto
provides an extensive argument that Turner's amended complaint is
not or should not be the operative complaint. This contention
amounts to an argument that the Louisiana court contravened
Louisiana law in several ways by allowing Turner to amend his
complaint to redefine the class, the Court of Appeals notes. But
GoAuto's argument is defeated by the fact that before it filed its
notice of removal, the Louisiana court accepted Turner's amended
complaint.
The Court of Appeals explains that a basic precept of the federal
system is that federal courts do not exercise authority over the
proceedings of a sovereign state's judiciary as it relates to that
state's laws., citing Calder v. Bull, 3 U.S. (3 Dall.) 386, 387
(1798) (Chase, J.). However, GoAuto asserts that the Supreme Court
effectively blessed removal of a case like this one in Standard
Fire Insurance Co. v. Knowles, 568 U.S. 588, 593-96 (2013), when
the Court directed district courts to look beyond the language of a
state court complaint to determine if an amount in controversy
requirement was met.
But Knowles does not stand for the proposition that GoAuto
advances, namely that federal courts should separately evaluate the
procedural rulings of a state trial court prior to removal, the
Court of Appeals states. The court's holding was that a stipulation
that did not legally bind other class members could not be
determinative of the amount in controversy of a class action; it
said nothing regarding the refusal to abide by the state law
procedural rulings made by a state court. Thus, the Court of
Appeals declines GoAuto's entreaty to disregard the Louisiana state
court's pre-removal procedural rulings applying Louisiana law and
substitute its own Erie guesses at how a Louisiana court ought to
rule on a motion to amend a pleading.
Mr. Turner's operative complaint defined the class as:
all citizens of Louisiana insured by GoAuto for the total
loss of a vehicle and who were paid by GoAuto for their
total loss based upon a valuation that was reduced by a
'condition adjustment' deducted from the stated values of a
comparison vehicle used to calculation the value of the
totaled vehicle.
According to the Court of Appeals, as the language of the complaint
limits the class to "citizens of Louisiana," by definition, no
plaintiff can be a citizen of a different state. It is uncontested
that GoAuto is a citizen of Louisiana, such that every class member
is from the same state as the defendant and there is no minimal
diversity.
GoAuto attempts two additional arguments to defeat remand. First,
it argues that it is plausible that some class members are not
citizens of Louisiana. GoAuto presents evidence of three
individuals who at one point lived in Louisiana, were insured by
GoAuto, had a total-loss claim adjusted by GoAuto, and are now
domiciled in either Colorado, Texas, or Florida.
GoAuto's argument though is wrecked by the text of the complaint,
the Court of Appeals opines, adding that none of these individuals,
assuming they had relocated to Colorado, Texas, or Florida before
the filing of the complaint, qualify as citizens of Louisiana and,
thus, members of the defined class in Turner's complaint.
GoAuto's second argument is that the law of this circuit bars such
a class definition, or in the alternative, that the Act cannot be
read to allow such a class definition. The cases that GoAuto
presents for its first point only establish that when determining a
party's citizenship, a party cannot rest on conclusionary
allegations, the Court of Appeals opines, citing Preston v. Tenet
Healthsystem Mem'l Med. Ctr., Inc., 485 F.3d 793, 797-98 (5th Cir.
2007).
The Court of Appeals points out that GoAuto's arguments do not
stand for the legal proposition that GoAuto asserts. As to its
second point, ultimately, the Court of Appeals finds the conclusion
reached by its sister circuits, that nothing in the text of the Act
bars such a class definition, more persuasive. In fact, GoAuto
points to nothing in the text of the statute that would bar
Turner's class definition.
III.
The Court of Appeals affirms the judgment of the district court.
The case is remanded to the district court with instructions to
remand it to the 19th Judicial District Court in East Baton Rouge
Parish, Louisiana.
Affirmed; remanded with instructions.
A full-text copy of the Court's Opinion dated May 2, 2022, is
available at https://tinyurl.com/7zsz3edj from Leagle.com.
GRAND CANYON: Villada Sues Over Sex Discrimination, Unpaid Wages
----------------------------------------------------------------
MARIA TERESA MARTINEZ VILLADA, individually and on behalf of all
others similarly situated, Plaintiff v. GRAND CANYON DINER, GRAND
CANYON BISTRO, GRAND CANYON RESTAURANT, ROBERT OJEDA, BERNARDO
MARTINEZ, CESAR RENDON, GONZALO CARRETO, and ALFREDO TAPIA,
Defendants, Case No. 2:22-cv-02782 (E.D.N.Y., May 12, 2022) is a
class action against the Defendants for claims of sex-based
discrimination, retaliation and unlawful employment practices in
violation of Title VII of the Civil Rights Act of 1964 and the New
York State Human Rights Law, for infliction of emotional distress
and negligent hiring and supervision, and for unpaid wages and
unpaid overtime compensation in violation of the Fair Labor
Standards Act.
The Plaintiff worked for the Defendants as a cashier at Grand
Canyon Diner from October 2019 until about May 2021.
Grand Canyon Diner is a restaurant owner and operator, with its
principal place of business at 179 7th Ave., Brooklyn, New York.
Grand Canyon Bistro is a restaurant owner and operator, with its
principal place of business at 300 Schermerhorn St., Brooklyn, New
York.
Grand Canyon Restaurant is a restaurant owner and operator, with
its principal place of business at 143 Montague St., Brooklyn, New
York. [BN]
The Plaintiff is represented by:
Nadia M. Pervez, Esq.
Aneeba Rehman, Esq.
PERVEZ & REHMAN, P.C.
68 South Service Road, Suite 100
Melville, NY 11747
GROCERY DELIVERY: Website Not Accessible to Blind Users, Brown Says
-------------------------------------------------------------------
LAMAR BROWN, on behalf of himself and all others similarly situated
v. Grocery Delivery E-Services USA, Inc. d/b/a. Hello Fresh, Case
No. 1:22-cv-03905 (S.D.N.Y., May 13, 2022) alleges that Grocery
Delivery E-Services failed to design, construct, maintain, and
operate their website to be fully accessible to and independently
usable by Plaintiff and other blind or visually-impaired persons.
The Defendant is allegedly denying blind and visually impaired
persons throughout the United States with equal access to the goods
and services Grocery Delivery E-Services Usa provides to their
non-disabled customers through https://www.hellofresh.com. The
Defendants' denial of full and equal access to its website, and
therefore denial of its products and services offered, and in
conjunction with its physical locations, is a violation of
Plaintiff's rights under the Americans with Disabilities Act, says
the suit.
The Plaintiff is a visually-impaired and legally blind person who
requires screen-reading software to read website content using his
computer. The Plaintiff uses the terms "blind" or
"visually-impaired" to refer to all people with visual impairments
who meet the legal definition of blindness in that they have a
visual acuity with correction of less than or equal to 20 x 200.
Some blind people who meet this definition have limited vision;
others have no vision.
Based on a 2010 U.S. Census Bureau report, approximately 8.1
million people in the United States are visually impaired,
including 2.0 million who are blind, and according to the American
Foundation for the Blind’s 2015 report, approximately 400,000
visually impaired persons live in the State of New York.
Hellofresh.com provides to the public a wide array of the goods,
services, price specials and other programs offered by Grocery
Delivery E-Services USA. Yet, Hellofresh.com contains thousands of
access barriers that make it difficult if not impossible for blind
and visually-impaired customers to use the website. In fact, the
access barriers make it impossible for blind and visually-impaired
users to even complete a transaction on the website. Thus, Grocery
Delivery E-Services Usa excludes the blind and visually-impaired
from the full and equal participation in the growing Internet
economy that is increasingly a fundamental part of the common
marketplace and daily living. In the wave of technological advances
in recent years, assistive computer technology is becoming an
increasingly prominent part of everyday life, allowing blind and
visually-impaired persons to fully and independently access a
variety of services.
The Plaintiff seeks a permanent injunction to cause a change in
Grocery Delivery E-Services' policies, practices, and procedures to
that Defendant's website will become and remain accessible to blind
and visually-impaired consumers. This complaint also seeks
compensatory damages to compensate Class members for having been
subjected to unlawful discrimination.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
MARS KHAIMOV LAW, PLLC
108-26 64th Avenue, Second Floor
Forest Hills, NY 11375
Telephone: (929) 324-0717
Facsimile: (929) 333-7774
E-mail: mars@khaimovlaw.com
GROUP HEALTH: Midthun-Hensen's Bid for Discovery Granted in Part
----------------------------------------------------------------
In the case, ANGELA MIDTHUN-HENSEN and TONY HENSEN, as
representatives of their minor Daughter, K.H., and on behalf of all
others similarly situated, Plaintiffs v. GROUP HEALTH COOPERATIVE
OF SOUTH CENTRAL WISCONSIN, INC., Defendant, Case No. 21-cv-608-slc
(W.D. Wis.), Magistrate Judge Stephen L. Crocker of the U.S.
District Court for the Western District of Wisconsin granted in
part and denied in part the Plaintiffs' motion for discovery.
I. Background
In this putative class action for monetary and equitable relief,
Plaintiffs Angela Midthun-Hensen and Tony Hensen, as
representatives of their minor daughter, K.H., allege that from
2017-2019, their health insurance provider, Group Health
Cooperative of South Central Wisconsin, Inc. ("GHC"), unreasonably
and unlawfully denied coverage for speech and occupational therapy
as treatment for K.H.'s Autism Spectrum Disorder ("ASD").
GHC is a non-profit, health maintenance organization that offers
health insurance and oversees the administration of benefits
provided under those health insurance plans. Plaintiff Angela
Midthun-Hensen enrolled herself, her husband (Plaintiff Tony
Hensen) and their daughter (K.H.) in an employer-sponsored health
plan issued and overseen by GHC. K.H. has been diagnosed with
Autism Spectrum Disorder ("ASD"). This case concerns GHC's denial
of coverage, from 2017 to 2019, for two kinds of treatments that
the Midthun-Hensens sought for K.H.'s ASD: (1) speech therapy and
(2) occupational therapy.
From 2017-2019, the Plaintiffs submitted seven requests for either
speech or occupational therapy coverage for K.H.. K.H. turned 10 on
March 9, 2018. GHC denied those requests on the ground that neither
occupational therapy nor speech therapy for children over age 10
were evidence-based treatments for ASD, and therefore, were not
covered by the plan.
The Plaintiffs appealed, supporting their requests with letters
from K.H.'s providers attesting to the medical necessity of the
treatments and with various medical literature that they argued
showed the efficacy of the treatments in treating autism. However,
GHC continued to adhere to its position that the treatments sought
were not evidence-based and were excluded under the plan's
exclusion for experimental and investigational treatment.
In rejecting the Plaintiffs' claims, GHC relied on CM.MED.121
("Policy 121"), which reflects GHC's "guidelines used to determine
eligibility for and coverage of" ASD services for GHC members.
Since October 2020, however, GHC has approved claims, including
those submitted by the Plaintiffs, for speech therapy for children
10 and older and for sensory integration occupational therapy,
including pre-service requests submitted by the Plaintiffs on Aug.
30, 2021. According to GHC, this policy change was the result of a
2020 report ("the EBP Report") issued by the National Clearinghouse
on Autism Evidence and Practice Review Team, which reviewed
available studies into the effectiveness of various treatments for
ASD and identified which treatments were evidence-based practices.
Based on new studies, the National Clearinghouse concluded that
both sensory integration occupational therapy and certain speech
and language treatments were evidence-based practices for the
treatment of autism. GHC says that the 2020 EBP Report's
determinations caused it to amend Policy 121.
The Plaintiffs filed the suit on Sept. 27, 2021, seeking to
represent the following class: All participants, beneficiaries,
subscribers and dependents enrolled in the GHC Large Group HMO
Plans, Large Group POS Plans, and Large Group PPO Plans
administered by GHC that contain an exclusion of coverage for
applied behavioral analysis, speech therapy for children age 10 or
older and/or occupational therapy whose requests for coverage for
these services were denied by GHC based on Policy 121.
The Plaintiffs assert three causes of action: (1) to recover
benefits due under GHC's health plan, pursuant to 29 U.S.C. Section
1001 et. seq., the Employee Retirement Income Security Act of 1974
("ERISA"), as enforced through 29 U.S.C. Section 1132(a)(1)(B); (2)
GHC violated the Mental Health Parity and Addiction Equity Act of
2008 ("Parity Act")1 by failing to provide the sought-after
treatment; and (3) GHC violated Wis. Stat. Section 632.895, which
mandates health insurers to provide certain coverage to treat ASD.
In the parties' Rule 26(f) report, GHC asserted that no discovery
was necessary until the Court resolved some threshold questions,
namely, (1) whether GHC had reasonably determined that its plan did
not provide the therapy requested by the Plaintiffs because the
treatments were not evidence-based and were instead experimental
and investigational, and (2) whether broader coverage was mandated
by either the Federal Parity Act or Wisconsin's healthcare
mandate.
At the preliminary pretrial conference, the Court set an early date
by which GHC would file a front-end motion for summary judgment and
stayed discovery "unless the Court grants a Rule 56(d) motion." GHC
has now filed its contemplated motion, and the Plaintiffs have
filed their Rule 56(d) motion.
II. Opinion
GHC has moved for summary judgment on all claims. GHC argues that
the Plaintiff's first claim, for recovery of benefits, must be
denied because GHC reasonably determined that the Plaintiff's
requests for speech and occupational therapy to treat K.H.'s ASD
were not "evidence based" at the time. As for the Plaintiffs' claim
that GHC's denials violated the Federal Parity Act, GHC argues the
Plaintiffs cannot state a viable cause of action because they have
failed to identify any plan treatment limitations that do not apply
equally to medical and to mental health services. Finally, says
GHC, the Plaintiffs' complaint for declaratory relief must be
denied because GHC now is providing coverage.
In response to GHC's motion for summary judgment, the Plaintiffs
have moved pursuant to Fed. R. Civ. P. 56(d) for an order allowing
them to take discovery from GHC before they respond to GHC's
motion. They ask for discovery on both their improper denial of
benefits claim and their Parity Act claim.
A. Count 1: Improper Denial of Coverage and Benefits
Citing to 29 U.S.C. Section 1132(a)(1)(B), the Plaintiffs claim
that GHC improperly denied them coverage and benefits. The dispute
between the Plaintiffs and GHC is over what evidence the Court may
consider when it reviews the claims administrator's decision under
this standard. GHC argues that the Court is limited to reviewing
the administrative record. The Plaintiffs disagree, arguing that in
order to defend against summary judgment on the
wrongful-denial-of-benefits claim, they need to take discovery from
GHC's decision-makers to "understand the reasoning process behind
the coverage decisions to determine if GHC acted in an arbitrary
and capricious manner.
Jude Crocker opines that the Plaintiffs have failed to make a prima
facie showing of a conflict of interest or other impropriety on
GHC's part that would warrant granting an exception to the general
rule that limits review in the case to the evidence in the
administrative record. Accordingly, their motion for discovery with
respect to the first count of the complaint is denied.
B. Count II: Federal Parity Act Claim
In Count II, the Plaintiffs allege that GHC's coverage denials
violated the Paul Wellstone and Pete Dominici Mental Health Parity
and Addiction Equity Act of 2008, an ERISA amendment codified at 29
U.S.C. Section 1185a. The parties appear to agree that the Parity
Act is enforceable through a cause of action under 29 U.S.C.
Section 1132(a)(3). In arguing for summary dismissal of the
Plaintiffs' Parity Act claim, GHC argues that their complaint does
not allege either a facial or as-applied Federal Parity Act
violation. As GHC points out, the complaint contains only one
paragraph, that resembles the elements of a Parity Act claim.
Judge Crocker opines that because the Plaintiffs' complaint fails
to state a plausible claim for relief under the Parity Act, they
are not entitled to discovery on that claim. However, he will allow
the Plaintiffs an opportunity to amend their complaint solely with
respect to their Parity Act claim. If, after a diligent review of
the case law and the plan documents, the Plaintiffs choose to take
this path, then they must file their amended complaint not later
than May 27, 2022.
If the Plaintiffs do not file an amended complaint, then their
Parity Act claim will be dismissed, and they must respond to the
pending motion for summary judgment on the denial-of-benefits claim
not later than June 6, 2022. If the Plaintiffs do file an amended
complaint, then GHC will have until June 23, 2022 in which to
either (a) file an updated motion for summary judgment, or (b)
withdraw the motion for summary judgment, without prejudice to
refiling it after the parties have had an opportunity to take
discovery on the Parity Act claim. The Court will set additional
deadlines as necessary, depending on which course this proceeding
takes.
III. Conclusion
Judge Crocker concludes that the general rule is that evidence
beyond the administrative record is not permitted when the Court
reviews a claims administrator's denial of benefits under the
"arbitrary and capricious" standard. The Plaintiffs have failed to
show that they qualify for an exception to this rule. As for their
Parity Act claim, the Plaintiffs have failed to allege sufficient
facts in their complaint from which it can be plausibly inferred
that GHC denied their claims based on a treatment limitation that
is separate from or more restrictive than those it applies to
analogous medical treatment. However, Judge Crocker is giving the
Plaintiffs an opportunity to amend their complaint before they
respond to GHC's summary judgment motion if they wish to attempt to
cure the deficiencies in their Parity Act claim.
The Plaintiffs' motion pursuant to Fed. R. Civ. P. 56(d) to defer
consideration of the pending motion for summary judgment and permit
them to take discovery is granted in part and denied in part. The
Plaintiffs have until May 27, 2022, in which to file an amended
complaint with respect to their claim brought pursuant to the
Federal Parity Act.
If the Plaintiffs do not file an amended complaint by May 27, 2022,
then their Parity Act claim will be dismissed, and they must
respond to the pending motion for summary judgment on the
denial-of-benefits claim not later than June 6, 2022. If the
Plaintiffs do file an amended complaint, then GHC has until June
23, 2022 in which to either (a) file an updated motion for summary
judgment, or (b) withdraw the motion for summary judgment, without
prejudice to refiling it after the parties have had an opportunity
to take discovery on the Parity Act claim.
If GHC chooses option (a), then the Court will set 21/10
response/reply deadlines for the summary judgment motion. If GHC
chooses option (b), then the Court will set a telephonic status
conference to revisit the schedule in the case, including the
deadline for Rule 23 motions.
A full-text copy of the Court's May 6, 2022 Opinion & Order is
available at https://tinyurl.com/3jcxt57h from Leagle.com.
HILLERICH & BRADSBY: Abreu Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Hillerich & Bradsby
Co. The case is styled as Luigi Abreu, individually, and on behalf
of all others similarly situated v. Hillerich & Bradsby Co., Case
No. 1:22-cv-03945 (S.D.N.Y., May 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Hillerich & Bradsby Company -- https://www.slugger.com/en-us -- is
an American manufacturing company located in Louisville, Kentucky
that produced baseball bats for Wilson Sporting Goods, which
commercialises them under the "Louisville Slugger" brand.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
HIRT'S LLC: Web Site Not Accessible to Blind Users, Brown Claims
----------------------------------------------------------------
LAMAR BROWN, individually and on behalf of all others similarly
situated, Plaintiffs v. HIRT'S, LLC, Defendant, Case No.
1:22-cv-03940-LJL (S.D.N.Y., May 14, 2022) alleges violation of the
Americans with Disabilities Act.
The Plaintiff alleges in the complaint that the Defendant's Web
site, through https://www.hirts.com, is not fully or equally
accessible to blind and visually-impaired consumers, including the
Plaintiff, in violation of the ADA.
The Plaintiff seeks a permanent injunction to cause a change in the
Defendant's corporate policies, practices, and procedures so that
the Defendant's Web site will become and remain accessible to blind
and visually-impaired consumers.
HIRT'S, LLC offers house plants, perennials, seeds, bulbs and
pottery and are open year round, selling online and to walk-in
customers. [BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
MARS KHAIMOV LAW, PLLC
108-26 64th avenue, Second Floor
Forest Hills, N.Y. 11375
Telephone: (929) 324-0717
Facsimile: (929) 333-7774
Email: mars@khaimovlaw.com
HITCHCOCK SHOES INC: Lawal Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Hitchcock Shoes Inc.
The case is styled as Rafia Lawal, on behalf of herself and all
others similarly situated v. Hitchcock Shoes Inc., Case No.
1:22-cv-03881 (S.D.N.Y., May 12, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Hitchcock Shoes is a long-established retailer specializing in
name-brand, wide-style footwear for men & women.[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Phone: (845) 367-7146
Fax: (732) 298-6256
Email: yzelman@marcuszelman.com
HOME CONTROLS: Velazquez Files ADA Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Home Controls, Inc.
The case is styled as Bryan Velazquez, on behalf of himself and all
others similarly situated v. Home Controls, Inc., Case No.
1:22-cv-03921 (E.D.N.Y., May 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Home Controls -- https://www.homecontrols.com/ -- is a premier
national distributor or comprehensive and unique home automation
systems.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
HOME DEPOT: Court Denies Bid to Decertify Class in Utne Suit
------------------------------------------------------------
In the case, JOHN UTNE, Plaintiff v. HOME DEPOT U.S.A., INC.,
Defendant, Case No. 16-cv-01854-RS (N.D. Cal.), Judge Richard
Seeborg of the U.S. District Court for the Northern District of
California issued an order:
a. granting in part and denying in part the Plaintiff's motion
to exclude the expert report of Robert Crandall pursuant to
Federal Rule of Evidence 702;
b. denying Home Depot's motion to exclude the reports of two
of the Plaintiff's expert witnesses pursuant to Federal
Rules of Civil Procedure 26 and 37; and
c. denying Home Depot's motion to decertify the class.
I. Background
In March 2016, Utne filed suit against Home Depot in the Superior
Court of California seeking recovery of unpaid wages and derivative
penalties on behalf of himself and other Home Depot store employees
in California. The action was subsequently removed to federal
court. The operative Third Amended Complaint ("TAC") advances five
claims under California Law for (1) failure to pay hourly wages,
Cal. Lab. Code Sections 223, 510, 1194, 1197, 1198; (2) failure to
provide accurate written wage statements, id. Section 226; (3)
failure timely to pay all wages at the termination of employment,
id. Section 201-203; (4) violation of California's Unfair
Competition Law, Cal. Bus. & Prof. Code Section 17200 et seq.; and
(5) civil penalties arising from Home Depot's alleged violation of
various provisions of the state labor code, Cal. Lab. Code Section
2698 et seq.
On March 30, 2018, two classes were certified: (1) a Lock-In Class
made up of "all individuals employed by Home Depot in hourly-paid
or non-exempt positions in Home Depot stores in California at any
time since March 8, 2012, and who worked at least one shift ending
after the time that the Home Depot store was scheduled to close to
the public for the evening," and (2) an Hourly Employee Class made
up of "all individuals employed by Home Depot in hourly paid or
non-exempt positions in California at any time since March 8, 2012
Order Granting Motion for Class Certification.
On July 11, 2019, partial summary judgment was granted to Home
Depot as to the Hourly Employees' waiting time penalties claim and
wage statement penalties claims.
Following the close of discovery in the class action alleging
violations of California wage and hour laws, Lead Plaintiff Utne
and Defendant Home Depot brought a series of motions. Judge
Seeborg's Order addresses three of those motions: The Plaintiff's
motion to exclude the expert report of Robert Crandall pursuant to
Federal Rule of Evidence 702, Home Depot's motion to exclude the
reports of two of Plaintiff's expert witnesses pursuant to Federal
Rules of Civil Procedure 26 and 37, and Home Depot's motion to
decertify the class.
II. Discussion
A. Plaintiff's Motion to Exclude Report of Robert Crandall Pursuant
to Rule 702
The Plaintiff moves to exclude the Defendant's expert, Robert
Crandall. The Plaintiff's concerns largely go to weight, not
admissibility, especially when considering that the instant motion
concerns consideration of Crandall's opinions by the Court for the
motion for class decertification, rather than what opinions will be
presented to a jury. As to the Plaintiff's concerns about how
Crandall's methods compare to other time and motion studies,
whether he followed all best practices for observational studies,
his sampling of stores, and his failure to provide margins of error
or to address possible impact of camera installation on his study,
the motion is denied. For the motion to decertify the class, the
Court may discount or assign low weight to Crandall's opinion as it
relates to these aspects of the motion. The Plaintiff may re-raise
these arguments should he file a motion to exclude this testimony
at trial.
Mr. Crandall's opinions on the percentage of employees engaged in
personal activities on their pre-shift walk to the back of the
store or time in the break room pre-shift, however, are excluded.
Crandall concluded that "personal activities of some kind were
observed for 5,569 (67.7%) of shift start subjects before they
clocked in to the start their shift." Crandall's study categorizes
a variety of types of activity -- including talking to colleagues
and using personal cellphones -- as personal activity. For many of
these categorizations, though, Crandall cannot know whether an
employee was engaged in work activity or not based solely on the
video observation conducted. A conversation with a colleague could
have concerned work issues, such as a request to start the shift
off completing a certain task or explaining an issue at the store,
rather than true non-work time. Similarly, time spent on the phone
could have involved talking with or texting a colleague about work
matters.
Similarly, it is impossible to know here whether all actions
observed in the Crandall study that are classified as personal
activities are truly personal. Some observed activities -- such as
playing cards in the break room -- can easily be described as a
personal activity based on video observation alone. Crandall's
conclusions about the percentage of employees who spent time on
personal activities before clocking in are therefore excluded.
Mr. Crandall also provided numerous opinions under the header of
"Discussion of Potential Trial Plan Issues." He includes opinions
such as that "the observation study results indicate that there are
individualized issues that cannot be managed without collecting
detailed individualized facts and data." The opinions the Plaintiff
has highlighted in the "Discussion of Potential Trial Plan Issues"
in the Crandall Declaration are excluded, as are all other opinions
about the appropriateness of class-wide determination of liability
or damages.
Judge Seeborg finds therefore granted the Plaintiff's motion as to
Crandall's opinions on the percentage of employees who spent
pre-shift time on personal activities and Crandall's improper legal
opinions, and denied in all other respects.
B. Defendant's Motion to Exclude Expert Reports Pursuant to Rules
26 and 37
The Defendant moves to exclude selected reports of two of
Plaintiff's experts, Dr. Jon A. Krosnick and James Toney, for
failure to produce required documents supporting their opinions.
Judge Seeborg denied the motion as to both experts.
1. Dr. Jon A. Krosnick
Home Depot's concerns with the disclosure of materials connected to
Dr. Krosnick's report relate to the cognitive pretesting done by
Dr. Krosnick before finalizing his survey questions. Cognitive
pretesting is a process of testing a survey or questionnaire to
identify poorly worded questions or other concerns with the survey.
Dr. Krosnick and his team conducted 59 cognitive pretesting
interviews. Dr. Krosnick has testified that no one on his team took
notes during those interviews, and that he did not save the draft
versions of the survey. Home Depot frames Dr. Krosnick's failure to
take notes or save draft versions as document destruction, and
argues this "destruction" will "prevent meaningful examination on
issues at the core of his opinions." Home Depot seeks to exclude
Dr. Krosnick's first and third expert reports, which rely on the
survey results.
The Plaintiff seeks to analogize Dr. Krosnick's draft survey to a
draft expert report that a party is not under an obligation to
disclose.
Judge Seeborg holds that as the drafts of the surveys are not
"facts or data" considered by Dr. Krosnick in forming his opinion,
exclusion is not appropriate. At trial, Home Depot may
cross-examine Dr. Krosnick about the questions in his survey, any
concerns it has with the questions or survey methodology, and the
failure to keep drafts while refining his survey. The motion to
exclude the First and Third Reports of Dr. Krosnick is therefore
denied.
2. James Toney
Mr. Toney is an expert retained by the Plaintiff to opine on the
number of unpaid hours and the amount of unpaid wages associated
with pre-shift walking time and post-shift waits for the exit doors
to be unlocked, among other topics. He provides calculations
addressing these issues in a Supplemental Report. To produce these
calculations, he relied on spreadsheets based on data produced by
Home Depot, for which Dr. Krosnick then created an algorithm to
analyze.
After some back and forth with opposing counsel, the Plaintiff did
not provide the spreadsheets underlying Toney's calculations until
April 5, 2022, the day after Home Depot filed the instant motion.
Home Depot had access to the underlying data used to create the
spreadsheets — which was its own data — and Plaintiff had
previously disclosed Dr. Krosnick's algorithm which processed the
raw data into the spreadsheets used by Toney.
Any failure to produce the spreadsheets was substantially justified
and harmless, Judge Seeborg holds. He says, the Plaintiff has
demonstrated that there was some confusion over what materials
Defendant was requesting, and then quickly produced the materials
once that confusion was resolved. Further, Home Depot had access to
both the underlying raw data and the computer program used to
process that data to produce the spreadsheets used by Toney.
Therefore, exclusion is not appropriate, and the motion to exclude
the Supplemental Report of James Toney is denied.
C. Motion for Class Decertification
Home Depot challenges the class certification decision as to both
the Hourly Wage Class and the Lock-In Class. As to both classes,
Home Depot argues that new evidence developed since the class
certification decision means that Plaintiff has not satisfied the
commonality requirement of Rule 23(a) or the predominance
requirement of Rule 23(b) as to either class. It also submitted a
supplemental brief arguing that decertification is required under
the Supreme Court's recent decision in TransUnion v. Ramirez, 141
S.Ct. 2190 (2021).
Judge Seeborg denied the motion to decertify the class is therefore
denied as to the Hourly Worker class. He finds that common issues
will predominate as to whether employees were subject to
Defendant's control on their walk to the back of the store, and
similarly common issues will predominate as to whether workers were
required by Home Depot policy to don their aprons prior to clocking
in.
Judge Seeborg further holds that decertification is not warranted
as to the Lock-In Class, and Home Depot's motion is denied. He
finds that the possibility that workers could have submitted time
certification forms does not warrant decertification. Commonality
is established on the element of Home Depot's knowledge as well.
Similarly, predominance is also established as to the questions of
employer knowledge and payment for wait time. Questions regarding
compensation via time adjustment forms may be addressed at the
damages phase, meaning common questions will still predominate as
to whether employees were unpaid for wait time.
Finally, TransUnion does not require decertification due to lack of
standing. Individualized inquiries into standing do not predominate
over common questions. The class members who are not entitled to
damages may be weeded out at the claims phase, preventing any
individuals without standing from "recovering individual damages.
III. Conclusion
In short, the motion to decertify the class is denied as to both
the Hourly Wage Class and the Lock-In Class. The Plaintiff has put
forth sufficient evidence to demonstrate the commonality and
predominance requirements of Rule 23(a) and 23(b). Whether the
Plaintiff's evidence will convince the trier of fact to rule in his
favor is another question, but that is a question for trial.
Judge Seeborg denied the Defendant's motion to decertify the class
is denied. He granted in part and denied in part the Plaintiff's
motion to exclude the Crandall Report. He denied Home Depot's
motion to exclude reports from two of the Plaintiff's expert
witnesses.
A full-text copy of the Court's May 6, 2022 Order is available at
https://tinyurl.com/7rx4hfpd from Leagle.com.
HOME DEPOT: Wins Judgment on Pleadings as to Utne's UCL Claim
-------------------------------------------------------------
In the case, JOHN UTNE, Plaintiff, v. HOME DEPOT U.S.A., INC.,
Defendant, Case No. 16-cv-01854-RS (N.D. Cal.), Judge Richard
Seeborg of the U.S. District Court for the Northern District of
California issued an order:
a. granting Home Depot's motion for judgment on the pleadings
as to the Plaintiffs' Unfair Competition Law ("UCL") claim;
b. granting the Plaintiffs' motion for leave to file an
amended complaint; and
c. denying the Plaintiffs' motion for sanctions for failing to
notify the Plaintiffs and the Court of related actions.
I. Background
The Plaintiffs and Home Depot each filed various pretrial motions
in this labor class action, including motions concerning experts
and a motion for class decertification. Judge Seeborg order
addresses only Home Depot's motion for judgment on the pleadings as
to the UCL claim, the Plaintiffs' motion for leave to amended, and
the Plaintiffs' motion for sanctions.
II. Discussion
A. Judgment on Pleadings
Home Depot moves for judgment on the pleadings as to the
Plaintiffs' UCL claim because they have an adequate remedy at law,
relying on Sonner v. Premier Nutrition Corp., 971 F.3d 834, 844
(9th Cir. 2020). Specifically, Home Depot argues the Plaintiffs
have sued for damages under the Labor Code, and their UCL claim
seeks only the same amount via restitution. The Plaintiffs note
that Home Depot did not make this argument at the many appropriate
junctures which have come and gone, e.g., it moved for summary
judgment on this claim on another basis.
The Plaintiffs' UCL claim is derivative of their claim that Home
Depot did not pay them for all hours worked, in violation of
various sections of California's Labor Code. The Plaintiffs respond
on several grounds. First, they contend Home Depot has waived this
argument. Second, the Plaintiffs argue that they do not have an
adequate remedy at law. Finally, they argue that if Home Depot's
motion is to be granted, the correct remedy is to remand to state
court, where relief can be provided, citing Guthrie v. Transamerica
Life Ins. Co., 2021 WL4314909 *6 (N.D. Cal 2021).
First, Judge Seeborg finds that in any event, even under the cases
the Plaintiff relies on, Home Depot's actions to date have not
precluded them from waiving this argument, although if the case
were even a smidgen more advanced the issue would have to be
addressed. Still, just because this argument is not waived does not
mean it is meritorious.
Second, Judge Seeborg holds that the Plaintiffs have an adequate
remedy at law. He finds that while statutes of limitations are
generally substantive, to hold that equitable principles limit the
Plaintiffs to damages in the case does not render the statutes of
limitations immaterial. Thus, Home Depot's motion for judgment on
the pleadings as to this claim is granted.
Finally, it seems the Plaintiffs' claims would be futile in state
court, at least regarding the period of overlap between the Labor
Code and the UCL, because California too requires the lack of an
adequate remedy at law before granting equitable relief. However, a
California court applying its own law could potentially find there
was no adequate remedy at law for the extra year the UCL provides.
Thus, while the Plaintiffs may not attempt to revive this claim in
the Court, Home Depot's motion is granted without any limitation on
refiling in state court.
B. Leave to Amend
The Plaintiffs seek leave to file a Fourth Amended Complaint
because an order granting partial summary judgment dismissed the
Private Attorneys General Act ("PAGA") claim in its entirety. They
argue the parties have proceeded as if there is an active PAGA
claim, e.g., Home Depot moved for summary judgment on the pre-shift
PAGA claim, and Home Depot submitted an expert report critiquing
the calculation of penalties for the lock-in PAGA claim.
The Plaintiffs seek leave to amend to remove any uncertainty that
they can proceed with their PAGA claim. The parties' statements
about the case also refer to the summary judgment order as
dismissing only the rounding claim, and reference a live PAGA
claim. The Plaintiffs' counsel also declares that he met and
conferred with Home Depot's counsel about this motion, and Home
Depot's counsel said he was unaware of any order dismissing the
PAGA claim. The Fourth Amended Complaint adds allegations about
administrative exhaustion for the other aspects of the PAGA claim
other than rounding.
Home Depot argues the Plaintiffs must show good cause to amend
under Rule 16(b).
Judge Seebrog holds that this rule applies only when a deadline for
leave to amend has been set by scheduling order. The Plaintiffs
correctly note that no such deadline was set in the case. The only
relevant standard is Rule 15. There may have been some undue delay:
The Plaintiffs' counsel is unsure whether this issue was not
addressed because of an oversight or because it was assumed the
order only applied to the rounding portion of the PAGA claim or
not. In any case, once they realized there was a potential issue,
they acted promptly. The most important factor, prejudice, is
absent, as Home Depot has been proceeding as if the PAGA claim was
still part of the case.
As for futility, the question is simply whether the claim makes out
a cognizable violation of law. The Plaintiffs easily clear that low
bar. Also, there is no bad faith: Both parties proceeded on the
assumption that the PAGA claim was active. Finally, although the
Plaintiffs have been granted several opportunities to amend before,
many amendments by themselves are not a reason to deny further
amendments. Each must be considered on the merits, and in the case,
there is ample reason to allow leave to amend.
The Plaintiffs' motion for leave to file the proposed Fourth
Amendment Complaint is granted. The Plaintiffs' request for relief
under Rule 60(b) need not be reached.
C. Sanctions
The Plaintiffs argue Home Depot should be sanctioned because it did
not file notices when Home Depot removed, transferred, or
consolidated five related cases that were filed after this case in
the Southern District of California. Specifically, they argue that
Barragan and White contain locked-in claims, which a class was
certified for in this action. White v. Home Depot, Case No.
22-cv-00276-AJB-AGS (S.D. Cal.); Barragan v. Home Depot, Case No.
3:19-cv-01766-AJB-AGS (S.D. Cal.). Further, the named Plaintiff in
White and most of the other named Plaintiffs in the other cases
were class members in this case who received notice and did not opt
out. Home Depot acknowledged White was related to Barragan in
papers filed in the Southern District, but referred to Barragan as
the first case involving the claims in White, rather than the
case.
Home Depot has offered to stay White, but the Plaintiffs are not
satisfied as they believe Home Depot intends to settle the claims
in White through the mediation in Barragan. Home Depot declares it
has also offered to stipulate to conditions on any settlement in
the other cases to protect any damages in this case. Finally, Home
Depot notes that the court in Barragan rejected a request by the
Plaintiffs to transfer the cases here.
Judge Seeborg finds that as Home Depot shows, the links the
Plaintiffs allege tie these cases together are similar to those
they have argued were not enough for relation in other cases. In
the most closely related case, White, Home Depot's choice of
different counsel in the two cases does not entirely excuse Home
Depot's conduct. Still, the Plaintiffs have made no allegations
that support a specific finding of bad faith or gross negligence on
Home Depot's part. None of the Zambrano factors favor sanctions
either. Thus, sanctions are inappropriate. This conclusion is
bolstered by two other facts: First, the Plaintiffs have avenues to
object to any possible settlement, and second, any "prejudice"
would be mostly or entirely to the Plaintiffs' counsel, not the
clients themselves, as the classes overlap. The Plaintiffs' motion
for sanctions is denied.
III. Order
In light of the foregoing, Judge Seebrog granted Home Depot's
motion for judgment on the pleadings as to the Plaintiffs' UCL
claim. He granted the Plaintiffs' motion for leave to file the
proposed Fourth Amended Complaint. He denied the Plaintiffs' motion
for sanctions.
A full-text copy of the Court's May 6, 2022 Order is available at
https://tinyurl.com/2au92tj9 from Leagle.com.
HOPPER (USA) INC: Martinez Files ADA Suit in E.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Hopper (USA), Inc.
The case is styled as Pedro Martinez, individually and as the
representative of a class of similarly situated persons v. Hopper
(USA), Inc., Case No. 1:22-cv-02779 (E.D.N.Y., May 12, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Hopper -- https://www.hopper.com/ -- is a travel app that uses
predictive analytics to make travel recommendations.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
HORIZON ACTUARIAL: Ruiz Suit Transferred to N.D. Georgia
--------------------------------------------------------
The case styled as Anthony Ruiz, individually and on behalf of
themselves and all others similarly situated v. Horizon Actuarial
Services, LLC, Case No. 3:22-cv-02279 was transferred from the U.S.
District Court for the District of Northern District of California,
to the U.S. District Court for the Northern District of Georgia on
May 13, 2022.
The District Court Clerk assigned Case No. 1:22-cv-01924-ELR to the
proceeding.
The nature of suit is stated as Other P.I. for Personal Injury.
Horizon Actuarial Services, LLC --
https://www.horizonactuarial.com/ -- is a leading consulting firm
that specializes in providing innovative actuarial solutions to
multiemployer benefit plans.[BN]
HURRICANES HOCKEY: Website Not Accessible to Blind, Davis Alleges
-----------------------------------------------------------------
KEVIN DAVIS, Individually, and On Behalf of All Others Similarly
Situated v. HURRICANES HOCKEY LIMITED PARTNERSHIP, Case No.
1:22-cv-03951-RA (S.D.N.Y., May 13, 2022) alleges that the
Defendant failed to design, construct, maintain, and operate its
website to be fully accessible to -- and independently usable by --
the Plaintiff and other blind or visually-impaired people who use
screen-reading software.
The Defendant and its website allegedly violate Title III of the
Americans with Disabilities Act of 1990 and the New York City Human
Rights Law, as the website is not equally accessible to blind and
visually-impaired consumers.
The Plaintiff asserts this action individually and on behalf of all
other visually-impaired and/or legally blind individuals in the
United States who have attempted to access Defendant's website and
have been denied access to the equal enjoyment of goods and/or
services offered on the website during the past three years from
the date of the filing of the complaint.
In April 2022, the Plaintiff browsed and attempted to transact
business on Defendant's website, Carolinaproshop.com. The main
reason Plaintiff visited the website was to, inter alia, purchase
products, goods, and/or services. The website sells/offers men,
women, and kids apparel and merchandise for Carolina Canes, the
lawsuit says.
The accessibility issues the Plaintiff experienced are still found
on Defendant's website as of the date of the filing of this
complaint. The Plaintiff still intends to purchase certain goods
and/or services from Defendant's website in the future, but
currently cannot.
The Plaintiff and the Class bring this action against Defendant
seeking preliminary and permanent injunction, other declaratory
relief, statutory damages, actual and punitive damages,
pre-judgment and post-judgment interest, and reasonable attorneys'
fees and expense.
The Plaintiff is visually-impaired and/or legally blind. Plaintiff
uses the NVDA screen-reader to access websites on the Internet.
During Plaintiff's visits to Defendant's website, the last
occurring in April 2022, the Plaintiff encountered multiple access
barriers that denied Plaintiff full and equal access to the goods
and/or services offered to (and made available for) the general
public. These access barriers were the reason that Plaintiff was
denied the full enjoyment of the goods and/or services offered on
the website.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
Jarrett S. Charo, Esq.
William J. Downes, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, 24 th Floor
New York, NY 10281
Telephone: (212) 595-6200
Facsimile: (212) 595-9700
E-mail: ekroub@mizrahikroub.com
jcharo@mizrahikroub.com
wdownes@mizrahikroub.com
ILLINOIS GASTROENTEROLOGY: McMillon Files Suit in N.D. Illinois
---------------------------------------------------------------
A class action lawsuit has been filed against Illinois
Gastroenterology Group, PLLC. The case is styled as Anita McMillon,
on behalf of herself and all others similarly situated v. Illinois
Gastroenterology Group, PLLC d/b/a Illinois Gastroenterology Group,
Case No. 1:22-cv-02539 (N.D. Ill., May 13, 2022).
The nature of suit is stated as Other P.I. for Personal Injury.
Illinois Gastro -- https://www.illinoisgastro.com/ -- is the
largest GI practice in Illinois.[BN]
The Plaintiff is represented by:
Gary M. Klinger, Esq.
MILBERG, COLEMAN LAW FIRM - ILLINOIS
227 West Monroe Street, Suite 2100
Chicago, IL 60606
Phone: (847) 208-4585
Email: gklinger@milberg.com
INDIANA: Court Refuses to Give Prelim. Injunction in Boyd v. Miller
-------------------------------------------------------------------
The U.S. District Court for the Southern District of Indiana,
Indianapolis Division, denied the Plaintiff's emergency motion for
preliminary injunction and motion to certify a class in the lawsuit
entitled DEREK BOYD, Plaintiff v. BRANDON MILLER, et al.,
Defendants, Case No. 1:22-cv-00634-JRS-MPB (S.D. Ind.).
Derek Boyd filed this prisoner civil rights action on March 30,
2022. Mr. Boyd's amended complaint asserts that he is confined
under inhumane conditions and includes allegations regarding food
service, mold, and the cleanliness of his housing unit. Mr. Boyd
has not yet paid the filing fee or obtained leave to proceed in
forma pauperis, and the Court has not yet screened his complaint as
it must under 28 U.S.C. Section 1915A.
I. Emergency Motion for Preliminary Injunction
Mr. Boyd's emergency motion for preliminary injunction asserts the
following, wide-ranging allegations:
* Staff members have not cleaned up blood from a stabbing that
occurred on April 7, 2022;
* An unspecified holiday meal was served in the day room, and
inmates were forced to eat in a crowded space and in
proximity to blood and sewage; and
* On April 12, staff members turned off the water for several
hours without warning.
Mr. Boyd asks the Court to order the Defendants to:
* preserve video from the day of the stabbing;
* stop serving hot meals in the housing unit in unsealed
containers;
* obtain a mold inspection from the State Board of Health; and
* obtain a wellness check for all inmates, who were in the
unit from April 7 through 12.
District Judge James R. Sweeney, II, notes that a preliminary
injunction is an extraordinary remedy never awarded as of right,
citing Winter v. Natural Resources Defense Council, 555 U.S. 7, 20
(2008). In at least two respects, Mr. Boyd's motion for preliminary
injunction is premature, Judge Sweeney finds.
First, a request for injunctive relief must necessarily be tied to
the specific claims on which the plaintiff is proceeding, Judge
Sweeney holds. Second, to obtain a preliminary injunction, a
plaintiff must establish that it has some likelihood of success on
the merits; that it has no adequate remedy at law; that without
relief it will suffer irreparable harm.
Mr. Boyd has asserted a broad range of claims against a diverse
group of defendants in his amended complaint, Judge Sweeney notes.
Judge Sweeney states points out that it is not certain that every
claim he asserts will proceed once he resolves the filing fee and
the Court screens the amended complaint -- much less that they will
all proceed in the same action. Some of the relief Mr. Boyd
requests in his motion -- such as preserving video or ordering
wellness checks related to an isolated incident -- are not clearly
related to the claims alleged in the amended complaint.
Regardless, Judge Sweeney says, Mr. Boyd has not demonstrated that
he is likely to succeed on the merits of whatever claims proceed or
that he will suffer irreparable harm without a preliminary
injunction. To be sure, Mr. Boyd describes filthy conditions in his
motion, but he provides no evidence (only his unsupported
allegations that the conditions have likely exposed inmates to
hepatitis and staph infections) indicating that he will be
permanently harmed if this lawsuit is permitted to proceed at its
standard pace.
Accordingly, Mr. Boyd's emergency motion for preliminary injunction
is denied.
II. Motion to Certify Class
Mr. Boyd's motion to certify a class and proceed as a class action
under Federal Rule of Civil Procedure 23 is denied, Judge Sweeney
holds.
Judge Sweeney opines that Mr. Boyd has not demonstrated that he
would be able to fairly and adequately protect the interests of all
class members given that he is a pro se prisoner, he has not yet
resolved the filing fee, and the Court has not yet screened the
complaint.
III. Conclusion
Mr. Boyd's emergency motion for preliminary injunction is denied.
His motion to certify a class and proceed with a class action under
Federal Rule of Civil Procedure 23 is denied. He has to resolve the
filing fee as previously ordered.
A full-text copy of the Court's Order dated May 2, 2022, is
available at https://tinyurl.com/3ky9syzp from Leagle.com.
JENNMAR CORP: Court Certifies Class & 3 Subclasses in Stacy Suit
----------------------------------------------------------------
In the case, CHARLIE STACY and CLIFFORD ALLEN, individually and on
behalf of all others similarly situated, Plaintiffs v. JENNMAR
CORPORATION OF VIRGINIA, INC., ET AL., Defendants, Case No.
1:21CV00015 (W.D. Va.), Judge James P. Jones of the U.S. District
Court for the Western District of Virginia, Abingdon Division,
grants the Plaintiffs' Motion for Class Certification.
I. Background
Plaintiffs Charlie Stacy and Clifford Allen filed the class action
on behalf of themselves and all individuals similarly situated,
alleging that the Defendants violated Virginia law by not paying
overtime or minimum wage to its workers and failing to provide
accurate itemized wage statements.
Defendants Jennmar Construction of Virginia, Inc., Jennmar
Corporation of East Virginia, Inc., Jennmar Construction Tools,
LLC, and Does 1 through 20, manufacture and assemble products for
use in agricultural, construction, energy, and mining industries,
specifically roof and structural support components, throughout
western Virginia and the United States. Plaintiffs Charlie Stacy
and Clifford Allen are former production and crane workers for the
Defendants at the Cedar Bluff, Virginia, facility. In general, they
were responsible for monitoring and operating workstations along
the production lines.
On April 12, 2021, the Plaintiffs filed their Complaint on behalf
of themselves and those similarly situated, alleging that hourly,
non-exempt workers at the Defendants' facilities located at Cedar
Bluff, Bristol, and Rich Creek, Virginia, routinely worked more
than 40 hours per week and that the Defendants failed to pay them
all wages and overtime wages in violation of Virginia law.
Specifically, the Plaintiffs allege that they were uncompensated
for pre-shift activities. They contend that in order to meet the
Defendants' expectations, they were required to start performing
essential job duties before their scheduled shift start time,
including "completing paperwork, including 'safety sheets' and
checklists; putting on personal protective equipment 'PPE',
including safety glasses, gloves, and cut-resistant Kevlar sleeves;
checking the machines, preparing tools, setting up the machines,
and ensuring my work area was clean."
However, hourly employees were instructed by the Defendants "to
clock in within 7 minutes of the start time of their shift." At the
Cedar Bluff and Bristol facilities, the Defendants also posted
signs near the time clock that instructed employees "not to clock
in earlier than 7 minutes before the scheduled shift or clock out
later than 7 minutes past the shift end. UNLESS APPROVED BY
MANAGEMENT FOR OVERTIME."
The Plaintiffs contend that employees were subject to the same
working hours and compensation policies, and the same written
employment policies, created by defendants' parent company, Frank
Calandra, Inc. Specifically, as a condition of employment, each
employee must comply with the Employee Handbook, which outlines the
Defendants' job performance expectations, timekeeping procedures,
and compensation practices. The purpose of the Handbook is "to make
sure that all workers understood and followed the same guidelines,
policies and practices related to their jobs." Individual
supervisors do not have any discretion in how the policies are
developed and enforced.
At each facility, hourly employees were typically scheduled for one
of two shifts. The schedule follows five eight-hour workdays for no
more than 40 hours per week, with any overtime or weekend shifts
scheduled based on production needs. All hourly employees are
required to clock-in and clock-out using a biometric time clock
system. The time clock is located at the point of entry for the
plant floor at each facility. Any overtime must be approved by a
supervisor, or the employee will be subject to discipline.
Additionally, all hourly employees "are required to maintain their
work areas before, during, and at the end of each work shift." They
are required to "wear Company approved and provided personal
protective equipment" (PPE) before entering the plant floor and
must complete "Safety Check Lists" before they may operate their
assigned machinery. All employees are provided a locker where they
may store their PPE and other personal items. Employees "regularly
store their PPE in their locker, and that's where they obtain it
when they come into the building, put it on, punch in, and go to
work." In other words, "tpically, an hourly employee would be
equipped with PPE when they are punching in." Employees are
instructed that they must report to their assigned workstation and
be "ready to work" at the start of their scheduled shift time.
Failure to do so results in disciplinary action.
The Defendants use a common practice of rounding time to the
nearest 15-minute increment to calculate wages, with employees'
time rounded up to 15 minutes when clocking-in eight minutes or
more before a shift but rounded down to zero minutes if clocking-in
seven minutes or less before a shift. When workers clocked in seven
minutes or less before their scheduled start time, they were not
compensated for pre-shift work.
On Dec. 3, 2021, the Plaintiffs filed this motion to certify a
class action of all individuals similarly situated pursuant to Rule
23(b)(3) of the Federal Rules of Civil Procedure and requested
court-authorized notice be issued to all putative opt-out
Plaintiffs. They claim that defendants' rounding policy, in
combination with its mandatory safety and housekeeping pre-shift
work, results in employees performing approximately 20 minutes of
unpaid compensable work per shift, in violation of Virginia law.
The Defendants argue that the Plaintiffs' motion should be denied
in its entirety, contending that they failed to satisfy Rule
23(a)'s commonality requirement and Rule 23(b)'s predominance
requirement. Alternatively, if the Court grants certification, the
Defendants maintain that the class should be limited to non-exempt
second shift employees at Jennmar Virginia's Cedar Bluff facility.
The parties have fully briefed the motion, and it is ripe for a
decision.
II. Discussion
The Plaintiffs seek to certify the following class: "All current
and former non-exempt employees employed by Defendants, in the
Commonwealth of Virginia, within three (3) years prior to the
filing of this action to the present."
Additionally, they have proposed the following three subclasses:
a. Subclass One, the "VMWA/VWPA Subclass," would consist of:
"All individuals who work or have worked for Defendants' [sic] as
non-exempt hourly employees performing compensable duties for
Defendants' benefit, in Virginia, at anytime within the three (3)
year period prior to filing this lawsuit who were: (i) paid on an
hourly basis and; (ii) were not paid all wages due and owing for
work duties performed in the Commonwealth of Virginia as a result
of Defendants' class-wide payroll practice of shaving shift minutes
and/or hours worked; (iii) who were subject to Defendants' payroll
policies and practices denying payment of wages for all hours
worked and/or payment of overtime wages at the time-and-one-half
rate for overtime worked over forty (40) hours per week; and/or
(vi) who were not paid all wages due and owing upon separation of
employment."
b. Subclass Two, the "Breach of Contract Subclass," would
consist of: "All individuals who work or have worked for Defendants
as non-exempt hourly employees performing compensable work duties
for Defendants' benefit, in Virginia, at any time within the five
(5) year period prior to the filing of this lawsuit who were: (i)
paid on an hourly basis and; (ii) were not paid all wages
contractually due and owing for work duties performed as a result
of Defendants' class-wide payroll practice of shaving shift minutes
and/or hours worked; (iii) were subject to Defendants' payroll
policies and practices denying payment of wages for all hours
worked each week; and/or (vi) who were not paid all wages due and
owing upon separation of employment."
c. Subclass Three, the "Quantum Meruit Subclass," would
consist of: "All individuals who work or have worked for Defendants
as non-exempt hourly employees performing compensable work duties
for Defendants' benefit, in Virginia, at any time within the five
(5) year period prior to the filing of this lawsuit who were: (i)
paid on an hourly basis and; (ii) were not paid all wages
reasonably due and owing for compensable work duties performed for
the benefit of Defendants as a result of Defendants' class-wide
payroll practice of shaving shift minutes and/or hours worked;
(iii) who were subject to Defendants' payroll policies and
practices denying payment of wages for all hours worked for
Defendants' benefit each week; and/or (vi) who were not paid all
wages due and owing upon separation of employment."
Rule 23 does not set forth a mere pleading standard." A party
seeking class certification must affirmatively demonstrate his
compliance with the Rule -- that is, he must be prepared to prove
that there are in fact sufficiently numerous parties, common
questions of law or fact, etc. At the certification stage, the
court may be required to "probe behind the pleadings" and "take a
close look at the facts relevant to the certification question."
The "likelihood of the plaintiffs' success on the merits, however,
is not relevant to the issue of whether certification is proper."
With respect to the class, the Defendants object only as to whether
the Plaintiffs have satisfied the commonality and predominance
requirements. In ruling on the motion, Judge Jones findst it
appropriate to consider all of Rule 23's requirements. He finds
that (i) the class members are easily identifiable from the
Defendants' employment records; (ii) the Plaintiffs have put forth
sufficient evidence that there is a common uniform policy
applicable to all putative class members that may be unlawful: The
Defendants' time rounding practice; (iii) the named Plaintiffs have
suffered the same injury as all the putative class members; and
(iv) the named Plaintiffs do not appear to have any interest
antagonistic to the rest of the putative class and the Plaintiffs'
counsel has extensive experience litigating complex wage and hour
class and collections actions, and there are no apparent conflicts
of interest for counsel.
Having concluded that Rule 23(a) prerequisites are met, Judge Jones
now turns to whether the Plaintiffs have satisfied the predominance
and superiority requirements of Rule 23(b). He finds that the class
issues will predominate over individual issues -- that is, whether
the Defendants' compensation system cannot account for the time
required to perform mandatory pre-shift work. He further finds that
a class action is superior to other methods of adjudicating the
controversy.
Finally, the Plaintiffs' proposed notice is sufficient. As the
Court previously held in granting the Plaintiffs' motion for
conditional certification of related FLSA claims, mailing of
notices through the U.S. Postal Service is the best and most
appropriate form of notice. The Defendants must therefore produce a
list with the name, job title, last known mailing address, dates of
employment, shift assignment, and location of employment for the
putative Plaintiffs within 15 days of the Opinion and Order.
III. Conclusion
For the reasons he stated, Judge Jones granted the Motion for Class
Certification and Court-Authorized Notice, pursuant to Federal Rule
23(a) and 23(b)(3).
The certified class is defined as follows: "All current and former
non-exempt employees employed by defendants, in the Commonwealth of
Virginia, within three (3) years prior to the filing of this action
to the present."
The certified subclasses are defined as follows:
a. VMWA/VWPA Subclass One: All individuals who work or have
worked for Defendants as non-exempt hourly employees performing
compensable duties for Defendants' benefit, in Virginia, at anytime
within the three (3) year period prior to filing this lawsuit who
were: (i) paid on an hourly basis and; (ii) were not paid all wages
due and owing for work duties performed in the Commonwealth of
Virginia as a result of Defendants' class-wide payroll practice of
shaving shift minutes and/or hours worked; (iii) who were subject
to Defendants' payroll policies and practices denying payment of
wages for all hours worked and/or payment of overtime wages at the
time-and-one-half rate for overtime worked over forty (40) hours
per week; and/or (vi) who were not paid all wages due and owing
upon separation of employment.
b. Breach of Contract Subclass Two: All individuals who work
or have worked for Defendants as non-exempt hourly employees
performing compensable work duties for Defendants' benefit, in
Virginia, at any time within the five (5) year period prior to the
filing of this lawsuit who were: (i) paid on an hourly basis and;
(ii) were not paid all wages contractually due and owing for work
duties performed as a result of Defendants' class-wide payroll
practice of shaving shift minutes and/or hours worked; (iii) were
subject to Defendants' payroll policies and practices denying
payment of wages for all hours worked each week; and/or (vi) who
were not paid all wages due and owing upon separation of
employment.
c. Quantum Meruit Subclass Three: All individuals who work or
have worked for Defendants as non-exempt hourly employees
performing compensable work duties for Defendants' benefit, in
Virginia, at any time within the five (5) year period prior to the
filing of this lawsuit who were: (i) paid on an hourly basis and;
(ii) were not paid all wages reasonably due and owing for
compensable work duties performed for the benefit of Defendants as
a result of Defendants' class-wide payroll practice of shaving
shift minutes and/or hours worked; (iii) who were subject to
Defendants' payroll policies and practices denying payment of wages
for all hours worked for Defendants' benefit each week; and/or (vi)
who were not paid all wages due and owing upon separation of
employment.
Zipin, Amster & Greenberg, LLC, and The Spiggle Law Firm, PLLC, are
appointed as the class counsel.
The Defendants will provide to class counsel an updated mailing
list, in alphabetical order by employee last name, with the job
title, last known mailing address, dates of employment, shift
assignments, and location of employment of all potential members of
the class action.
The list will be provided electronically in a manner requested by
the class counsel within 15 days of the entry of the Opinion and
Order in order to facilitate mailing.
A copy of the notice and the opt-in form will be provided via U.S.
Postal Service to all members of the certified subclasses.
A full-text copy of the Court's May 6, 2022 Opinion & Order is
available at https://tinyurl.com/bddzaz5s from Leagle.com.
Gregg C. Greenberg -- ggreenberg@zagfirm.com -- ZIPIN, AMSTER &
GREENBERG, LLC, in Silver Spring, Maryland, and Francisco Mundaca
-- fmundaca@spigglelaw.com -- and Robert W.T. Tucci --
rtucci@spigglelaw.com -- THE SPIGGLE LAW FIRM, PLLC, in Alexandria,
Virginia, for the Plaintiffs.
K. Maxwell Bernas -- kmbernas@fordharrison.com -- FORDHARRISON LLP,
Washington, D.C., and Benjamin P. Fryer -- bfryer@fordharrison.com
-- FORDHARRISON LLP, in Charlotte, North Carolina, for the
Defendants.
JP MORGAN: Dennis Seeks Conditional Status of Settlement Class
--------------------------------------------------------------
In the class action lawsuit captioned as Dennis, et al., v.
JPMorgan Chase & Co., et al., Case No. (), the Plaintiffs ask the
Court to enter an order:
1. conditionally certifying settlement class for purposes
of Plaintiffs' proposed class action settlement with
Defendants (1) Credit Suisse AG and Credit Suisse Group AG
and (2) BNP Paribas, S.A., Deutsche Bank AG, Royal Bank of
Canada, The Royal Bank of Scotland plc (n/k/a NatWest
Markets plc), and UBS AG;
2. approving their proposed notice plan and forms of notice;
and
3. setting the fairness hearing for November 1, 2022 at 4:00
p.m. and scheduling deadlines for settlement-related
events leading up to the fairness hearing.
The Plaintiffs include RICHARD DENNIS, SONTERRA CAPITAL MASTER
FUND, LTD., FRONTPOINT FINANCIAL SERVICES FUND, L.P., FRONTPOINT
ASIAN EVENT DRIVEN FUND, L.P., FRONTPOINT FINANCIAL HORIZONS FUND,
L.P., AND ORANGE COUNTY EMPLOYEES RETIREMENT SYSTEM, on behalf of
themselves and all others similarly situated.
The Defendants include JPMORGAN CHASE & CO., JPMORGAN CHASE BANK,
N.A., BNP PARIBAS, S.A., THE ROYAL BANK OF SCOTLAND GROUP PLC, THE
ROYAL BANK OF SCOTLAND PLC, RBS N.V., RBS GROUP (AUSTRALIA) PTY
LIMITED, UBS AG, AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD.,
COMMONWEALTH BANK OF AUSTRALIA, NATIONAL AUSTRALIA BANK LIMITED,
WESTPAC BANKING CORPORATION, DEUTSCHE BANK AG, HSBC HOLDINGS PLC,
HSBC BANK AUSTRALIA LIMITED, LLOYDS BANKING GROUP PLC, LLOYDS BANK
PLC, MACQUARIE GROUP LTD., MACQUARIE BANK LTD., ROYAL BANK OF
CANADA, RBC CAPITAL MARKETS LLC, MORGAN STANLEY, MORGAN STANLEY
AUSTRALIA LIMITED, CREDIT SUISSE GROUP AG, CREDIT SUISSE AG, ICAP
PLC, ICAP AUSTRALIA PTY LTD., TULLETT PREBON PLC, TULLETT PREBON
(AUSTRALIA) PTY LTD., AND JOHN DOES NOS. 1-50.
JPMorgan is an American multinational investment bank and financial
services holding company headquartered in New York City and
incorporated in Delaware.
A copy of the Plaintiffs' motion to certify class dated April 29,
2022 is available from PacerMonitor.com at https://bit.ly/3Lfb32P
at no extra charge.[CC]
The Counsel for Plaintiffs and the Proposed Class, are:
Vincent Briganti, Esq.
Geoffrey M. Horn, Esq.
44 South Broadway, Suite 1100
White Plains, NY 10601
Telephone: 914-997-0500
E-mail: vbriganti@lowey.com
ghorn@lowey.com
- and -
Christopher McGrath, Esq.
Christopher Lovell, Esq.
LOVELL STEWART HALEBIAN JACOBSON LLP
E-mail: clovell@lshllp.com
cmcgrath@lshllp.com
The Plaintiffs' Counsel for Orange County Employees Retirement
Systemm, are:
Todd Seaver, Esq.
Carl N. Hammarskjold, Esq.
BERMAN TABACCO
44 Montgomery Street, Suite 650
San Francisco, CA 94104
Telephone: (415) 433-3200
Facsimile: (415) 433-6382
E-mail: tseaver@bermantabacco.com
chammarskjold@bermantabacco.com
- and -
Patrick T. Egan, Esq.
BERMAN TABACCO
One Liberty Square
Boston, MA 02109
Telephone: (617) 542-8300
Facsimile: (617) 542-1194
E-mail: pegan@bermantabacco.com
JUUL LABS: E-Cigarette Ads Target Youth, Wabash City Suit Claims
----------------------------------------------------------------
WABASH CITY SCHOOLS, on behalf of itself and all others similarly
situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES
MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI;
ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP
DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case
No. 3:22-cv-02804 (N.D. Cal., May 12, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of Indiana Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Wabash City Schools is a public school district with its
administrative offices located in Wabash, Indiana.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
Thomas P. Cartmell, Esq.
Jonathan P. Kieffer, Esq.
Tyler W. Hudson, Esq.
WAGSTAFF & CARTMELL LLP
4740 Grand Ave., Ste. 300
Kansas City, MO 64112
Telephone: (816) 701-1100
Facsimile: (816) 531-2372
E-mail: tcartmell@wcllp.com
jpkieffer@wcllp.com
thudson@wcllp.com
- and –
Kirk J. Goza, Esq.
Brad Honnold, Esq.
GOZA & HONNOLD LLC
9500 Nall Ave., Ste. 400
Overland Park, KS 66207
Telephone: (913) 451-3433
E-mail: kgoza@gohonlaw.com
bhonnold@gohonlaw.com
- and –
Andy D. Birchfield, Jr., Esq.
Joseph G. VanZandt, Esq.
BEASLEY ALLEN CROW METHVIN PORTIS & MILES, LLC
234 Commerce Street
Montgomery, AL 36103
Telephone: (334) 269-2343
E-mail: Andy.Birchfield@BeasleyAllen.com
Joseph.VanZandt@BeasleyAllen.com
- and –
Rahul Ravipudi, Esq.
PANISH SHEA & BOYLE LLP
11111 Santa Monica Boulevard, Suite 700
Los Angeles, CA 90025
Telephone: (310) 477-1700
Facsimile: (310) 477-1699
E-mail: ravipudi@psblaw.com
- and –
John P. Fiske, Esq.
BARON & BUDD, P.C.
11440 West Bernardo Court Suite 265
San Diego, CA 92127
Telephone: (858) 251-7424
Facsimile: (214) 520-1181
E-mail: jfiske@baronbudd.com
- and –
Khaldoun Baghdadi, Esq.
WALKUP MELODIA KELLY & SCHOENBERGER, P.C.
650 California Street, 26th Floor
San Francisco, CA 94108
Telephone: (415) 617-1269
E-mail: kbaghdadi@walkuplawoffice.com
JV ENTERPRISES: Brown Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against JV Enterprises of New
York, Inc. The case is styled as Lamar Brown, on behalf of himself
and all others similarly situated v. JV Enterprises of New York,
Inc., Case No. 1:22-cv-03907 (S.D.N.Y., May 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
JV Enterprises of Illinois Inc. -- http://www.pizzahut.com/--
operates as a pizza hut restaurant. The Company offers pan pizza,
hand tossed, crispy, and stuffed crust pizza.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
KRAFT HEINZ: District of Wisconsin Dismisses Lemke Class Suit
-------------------------------------------------------------
In the case, CHRISTOPHER LEMKE, individually and on behalf of all
others similarly situated, Plaintiff v. KRAFT HEINZ FOOD COMPANY,
Defendant, Case No. 21-cv-278-wmc (W.D. Wis.), Judge William M.
Conley of the U.S. District Court for the Western District of
Wisconsin grants the Defendant's motion to dismiss Lemke's amended
complaint for failure to state a claim.
I. Background
In this putative class action, Plaintiff Lemke challenges the
truthfulness of Defendant Kraft's representation that its "Bagel
Bites" product consists of "mini bagels with mozzarella cheese and
tomato sauce." The Plaintiff purports to bring his challenges under
a variety of legal theories, including express warranty, fraud,
unjust enrichment and unfair trade practice violations, although
all depend on the overarching question of consumer confusion
resulting from the Bagel Bites' product label.
Plaintiff Lemke is a resident of Brookfield, Wisconsin, and a
consumer. Defendant Kraft is a Pennsylvania company with its
principal place of business in Pittsburgh. Kraft manufactures the
"Bagel Bites" pizza bagel product for distribution.
Mr. Lemke purchased Kraft's "Bagel Bites" snack "on multiple
occasions" during the summer of 2020, including from a Woodman's
Market in Waukesha, Wisconsin. Among other things, Lemke alleges
that he repeatedly purchased the product due to the packaging's
representation that it "contained mozzarella cheese and tomato
sauce" and would not have done so absent those "misrepresentations
and omissions." Specifically, Lemke alleges Kraft's assertions that
the product contains "mozzarella cheese" and "tomato sauce" are
misleading, since the product contains neither. Finally, Lemke
alleges that once the alleged misrepresentations are rectified, he
"will purchase the Product again when he can do so."
Defendant Kraft has moved to dismiss Lemke's amended complaint for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6).
II. Discussion
A. Mozzarella Cheese Blend
First, the Plaintiff addresses the ingredient referred to on the
front of the product as "mozzarella cheese," and on the back as a
"cheese blend" consisting of "part-skim mozzarella cheese,"
"modified food starch," and "skim milk." According to the
Plaintiff, "reasonable consumers do not expect a cheese blend with
modified food starch where the front label promises 'Mozzarella
Cheese' and 'REAL' cheese."
Judge Conley concludes that the Plaintiffs have failed to plausibly
allege that a reasonable consumer could be misled by the use of
"mozzarella cheese" or "REAL cheese" on the Bagel Bites product
label. He finds that the product labels does not claim to be "100%
mozzarella cheese," nor contain some other phrase conveying that
the product only contains mozzarella cheese. Similarly, the
remainder of the front packaging contains no other statement that
belies the ingredients list on the back of the product.
B. "Part-skim" Mozzarella
The Plaintiff also takes issue with the inclusion of "part-skim
mozzarella" in the list of the "cheese blend" ingredients.
Specifically, he argues that the front packaging label is
misleading because it only claimed to contain "Mozzarella Cheese,"
not "part-skim mozzarella cheese" as disclosed in the ingredients
list.
Judge Conley opines that "part-skim" mozzarella cheese is still
mozzarella cheese under preemptive federal law, and the Plaintiff
has not shown otherwise. In the absence of any relevant legal
authority to support the Plaintiff's claim that the representation
of "part-skim mozzarella" as "mozzarella cheese" is actionably
misleading despite federal law to the contrary, therefore, the
Plaintiff has failed to state a claim on this basis.
C. Tomato Sauce
Finally, the Plaintiff asserts claims based on the product's
characterization of the mixture of "water, tomato paste, invert
cane syrup, modified corn starch, salt, methylcellulose, citric
acid, potassium chloride, ammonium chloride, spice, yeast extract,
natural flavor, and calcium lactate" as "tomato sauce." Putting
aside the conclusory nature of this allegation, the Defendant again
points to the FDA Compliance Policy Guide, which states that "no
standard of identity has been established for tomato sauce," and
instead, merely requires that the sauce and constituent ingredients
be properly displayed in the ingredient list.
Judge Conley opines that not only does this document demonstrate
that "tomato sauce" is a loose category with no specific
formulation requirements, other than contents of "not less than
8.37% of salt-free tomato solids," but the Plaintiff's contention
that consumers are concerned about the chemical makeup of their
tomatoes seems incongruous with his other arguments that consumers
simply expect the purest and most basic form of every ingredient
advertised on the front of a product's package.
III. Conclusion
Judge Conley holds that because Lemke has not plausibly alleged
that a reasonable consumer won't receive the "mozzarella cheese,"
"real cheese" and "tomato sauce" provided on the front of the
package of the Defendant's Bagel Bites, the Plaintiff has failed to
state a claim for relief. As such, Judge Conley agrees with the
recent decisions issued by the Northern and Southern District
Courts of Illinois, as well as the Southern District of New York,
in rejecting other suits brought by the Plaintiff's counsel for
advancing an interpretation of a product's packaging that is
"unreasonable and unactionable."
A full-text copy of the Court's May 6, 2022 Opinion & Order is
available at https://tinyurl.com/2p8atv33 from Leagle.com.
LEGENDARY FOODS: Chalas Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Legendary Foods LLC.
The case is styled as Ana Chalas, individually, and on behalf of
all others similarly situated v. Legendary Foods LLC, Case No.
1:22-cv-03888 (S.D.N.Y., May 12, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Legendary Foods -- https://www.eatlegendary.com/ -- offers a wide
range of keto snacks and keto spreads.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
LFG CORPORATION: Brown Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed LFG Corporation. The case is
styled as Lamar Brown, on behalf of himself and all others
similarly situated v. LFG Corporation d/b/a Rooted, Case No.
1:22-cv-03941 (S.D.N.Y., May 14, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
LFG Corporation doing business as ROOTED --
https://stay-rooted.com/ -- is the designer men's apparel and
sneaker destination in Nashville.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
LIZHI INC: Faces Securities Suit in NY Court
---------------------------------------------
Lizhi 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 27, 2022, that in January 2021, the company,
certain of its current and former directors and officers,
underwriters and certain other parties were named as defendants in
two putative securities class actions filed in the Supreme Court of
the State of New York, County of New York and the U.S. District
Court for the Eastern District of New York, respectively.
The actions are both purportedly brought on behalf of a class of
persons who allegedly suffered damages as a result of their trading
in the ADSs.
Both actions allege that its Registration Statement dated January
16, 2020 contained material misstatements and/or omissions
regarding the impact of COVID-19 on the company in violation of the
U.S. Securities Act of 1933. The company, and the other defendants,
have moved to dismiss both actions. The defendants' motion to
dismiss was granted by the State Court on March 3, 2022. The motion
to dismiss filed in the Federal Court is still pending. These
actions remain in their preliminary stages.
Lizhi Inc. is a comprehensive audio-based social ecosystem catering
to audio entertainment and social networking based in China.
LOLA GRANOLA BAR: Davis Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Lola Granola Bar
Corporation. The case is styled as Kevin Davis, on behalf of
himself and all others similarly situated v. Lola Granola Bar
Corporation, Case No. 1:22-cv-03950 (S.D.N.Y., May 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Lola Granola Bar -- https://lolasnacks.com/ -- produces delicious
all-natural, gluten, wheat, soy and dairy free, chewy granola
bars.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
LSPACE AMERICA: Lawal Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against LSPACE America, LLC.
The case is styled as Rafia Lawal, on behalf of herself and all
others similarly situated v. LSPACE America, LLC, Case No.
1:22-cv-03920 (S.D.N.Y., May 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
LSpace -- https://www.lspace.com/ -- offers bikinis, swimwear, &
resort wear apparel.[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Phone: (845) 367-7146
Fax: (732) 298-6256
Email: yzelman@marcuszelman.com
LYMI INC: Iskhakova Files ADA Suit in E.D. New York
---------------------------------------------------
A class action lawsuit has been filed against LYMI, Inc. The case
is styled as Marina Iskhakova, on behalf of herself and all others
similarly situated v. LYMI, Inc., Case No. 1:22-cv-02814 (E.D.N.Y.,
May 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
LYMI, Inc., doing business as The Reformation --
https://www.thereformation.com/ -- designs and manufactures clothes
for women.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
285 Passaic Street
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
MAGICJACK LP: Iskhakova Files ADA Suit in E.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Magicjack, LP. The
case is styled as Marina Iskhakova, on behalf of herself and all
others similarly situated v. Magicjack, LP, Case No. 1:22-cv-03922
(E.D.N.Y., May 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
MagicJack -- https://www.magicjack.com/ -- is an Internet-based
telephone service provider in the United States and Canada.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
MAREDIN REST: Fails to Pay Proper Wages, Anzures Suit Alleges
-------------------------------------------------------------
SANTIAGO ANZURES; ALFREDO SANCHEZ QUIRINO; and ELEAZAR MENDEZ
BARRANCO, individually and on behalf of all others similarly
situated, Plaintiffs v. MAREDIN REST. CORP. d/b/a T-BONE DINER and
PETER PLEVRITIS, as an individual, Defendants, Case No.
1:22-cv-02798 (E.D.N.Y., May 13, 2022) seeks to recover from the
Defendants unpaid wages and overtime compensation, interest,
liquidated damages, attorneys' fees, and costs under the Fair Labor
Standards Act.
The Plaintiffs were employed by the Defendants as kitchen staffs.
MAREDIN REST. CORP. d/b/a T-BONE DINER and PETER PLEVRITIS owns and
operates a restaurant in New York. [BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, N.Y. 11415
Telephone: (718) 263-9591
MARINOSCI LAW GROUP: Burke FDCPA Suit Removed to S.D. Florida
-------------------------------------------------------------
The case styled as Roy Burke, on behalf of himself and others
similarly situated v. Marinosci Law Group, P.C., P.A., was removed
to the U.S. District Court for the Southern District of Florida on
May 12, 2022.
The District Court Clerk assigned Case No. 9:22-cv-80725-XXXX to
the proceeding.
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Marinosci Law Group, P.C. -- https://www.mlg-defaultlaw.com/ -- is
located in Warwick, Rhode Island and is part of the Legal Services
Industry.[BN]
The Plaintiff appears pro se.
The Defendant is represented by:
Ernest Henry Kohlmyer, III., Esq.
SHEPARD, SMITH, KOHLMYER & HAND, P.A.
2300 Maitland Center Parkway, Suite 100
Maitland, FL 32751
Phone: (407) 622-1772
Fax: (407) 622-1884
Email: skohlmyer@shepardfirm.com
MARTINEZ ONTIME: Violates PAGA Labor Code, Perez Class Suit Alleges
-------------------------------------------------------------------
IVAN PEREZ, on behalf of himself, the State of California, and
others similarly situated and aggrieved v. MARTINEZ ONTIME PARCEL,
INC, a California corporation; and DOES 1-100, inclusive, Case No.
22STCV16280 (Cal. Super., Los Angeles Cty., May 16, 2022) is a
representative action filed by the Plaintiff on behalf of himself,
other similarly Aggrieved Employees and the State of California
against Defendants, pursuant to California's Private Attorney
General Act, Labor Code section 2698 et. seq., to recover civil
penalties (75% payable to the Labor and Workforce Development
Agency and 25% payable to Aggrieved Employees) for the defendants'
violations of the California Labor Code.
The Plaintiff resides in Los Angeles County, in the State of
California. He was 24 employed by Defendants in the State of
California as a non-exempt employee during the relevant period. The
Plaintiff worked for the Defendants as a delivery driver and/or
other similar title.
The Defendants and their managing agents own, operate, or otherwise
manage a logistics company that provides transportation and storage
services. The Defendants provide courier services throughout
Southern California, among other transportation and storage
services.[BN]
The Plaintiff is represented by:
Michael R. Crosner, Esq.
Zachary M. Crosner, Esq.
Blake R. Jones, Esq.
CROSNER LEGAL, PC
9440 Santa Monica Blvd. Suite 301
Beverly Hills, CA 90210
Telephone: (310) 496-5818
Facsimile: (310) 510-6429
E-mail: mike@crosnerlegal.com
zach@crosnerlegal.com
blake@crosnerlegal.com
MATCH GROUP: Seeks May 25 Extension to File Class Cert. Reply
-------------------------------------------------------------
In the class action lawsuit captioned as SAMIR ALI CHERIF BENOUIS,
Individually and On Behalf of All Others Similarly Situated, v.
MATCH GROUP, INC., AMANDA W. GINSBERG AND GARY SWIDLER, Case No.
3:19-cv-02356-S (N.D. Tex.), the Defendants ask the Court to enter
an order extending the deadline for responding to Lead Plaintiff's
motion to certify class to May 25, 2022, with Lead Plaintiff's
reply deadline extended until July 13, 2022.
The Defendants say that Lead Plaintiff is unopposed to the proposed
schedule, which they believe will afford the parties adequate time
to brief the relevant issues for consideration if the mediation
does not result in a settlement.
Match Group is an American internet and technology company
headquartered in Dallas, Texas. It owns and operates the global
portfolio of popular online dating services including Tinder,
Match.com, Meetic, OkCupid, Hinge, PlentyOfFish, Ship, and OurTime,
totalling over 45 global dating companies.
A copy of the Defendants' motion dated April 28, 2022 is available
from PacerMonitor.com at https://bit.ly/3FN1FCp at no extra
charge.[CC]
The Defendants are represented by:
Peter A. Stokes, Esq.
Robert L. Greeson, Esq.
Veronica P. Kendrick, Esq.
Gerard G. Pecht, Esq.
NORTON ROSE FULBRIGHT US LLP
2200 Ross Avenue, Suite 3600
Dallas, TX 75201-7921
Telephone: (214) 855-8000
E-mail: robert.greeson@nortonrosefulbright.com
veronica.kendrick@nortonrosefulbright.com
gerard.pecht@nortonrosefulbright.com
peter.stokes@nortonrosefulbright.com
MAZIE SLATER: New Jersey Court Tosses Martino Suit With Prejudice
-----------------------------------------------------------------
In the case, Anthony Martino, Plaintiff v. David Mazie, Esq., Adam
Slater, Esq. and Mazie Slater Katz & Freeman LLC, Defendants, Case
No. 21-cv-20056 (RBK-MJS) (D.N.J.), Judge Robert J. Kugler of the
U.S. District Court for the District of New Jersey granted the
Defendants' motion to dismiss with prejudice and made moot the
Plaintiffs' cross-motion for partial summary judgment.
I. Background
In April 2015, the Judicial Panel on Multi-District Litigation
["JPML"] consolidated multiple cases filed in various state and
federal courts into the Olmesartan Multi-District Litigation
["MDL"]. These cases concerned whether ingestion of the
hypertensive Olmesartan caused gastro-intestinal injury that
mimicked celiac disease. Daichii Sankyo Ltd., a Japanese
corporation, manufactured Olmesartan, which is the generic of the
patented drug Benicar(R), and used certain U.S. distributors to
market and sell it in the United States. There were approximately
1700 plaintiffs in the MDL at the time of settlement.
As the transferee Court for the Olmesartan MDL, the Court takes
judicial notice of some facts and procedural background from its
own knowledge and experience. After two years of extensive
discovery, which included much document production, expert reports,
bellwether selection, etc., in April 2017 the parties negotiated in
the MDL a settlement having a first settlement aggregate amount of
$350,000,000.00. The Brown Greer ["BG"] law firm was the MDL's
administrator of the Olmesartan settlement program; BG orchestrated
the announcement of the settlement and managed the thousands of
subsequent claimants who signed onto the program.
During the three-week settlement sign-up period, over 10,800
claimants applied to the program. When the dust settled and all
viable claims were accounted for in the Olmesartan settlement
program, the total number of actual registrants, that is, those
eligible to receive a payout for their injuries, eventually reduced
to about 8500. As this number of registrants was about 3 times
larger than expected, the original settlement amount was
increased.
The MDL administrator, BG, was responsible for calculating the
amount of damages owed to the thousands of MDL registrants. BG,
along with the parties, established six general categories of
injury, each of which represented a minimum payout amount. BG and
the parties also developed an accompanying points systems by which
to account for aggravating health events, like hospitalization, or
extreme weight loss, and which thereby allowed an increase in the
calculated payout amount upon documentation of these experiences.
In registering for the Olmesartan settlement program, registrants,
whether advised by their law firms (or, if pro se, by a designated
Pro Bono law firm), agreed to abide by certain requirements, the
most important of which was the relinquishment of the right to
initiate a lawsuit in court for the same injuries. In order to
receive a payout, registrants also had to provide within a required
period sufficient evidence that demonstrated the alleged injury,
else they were dropped from the settlement without opportunity to
rejoin. Importantly, meeting this data requirement within the
designated period sometimes meant a registrant's attorney had to
corral its clients and their medical providers to get proper proof
of Olmesartan ingestion and related injury.
The Olmesartan settlement program gave registrants the right to
appeal their initial payout determination, and typically it was
registrants' attorneys who initiated and executed these appeals.
After BG's initial award determination, there were two levels of
appeals. The first was to seek a review by BG of its own award
determination in light of all the evidence and argument provided by
plaintiffs. The second was to have an appointed Magistrate Judge
review BG's award determination against the registrant's
accompanying submissions.
At first, Daiichi required the Olmesartan settlement program to
register at least 95% of all possible litigants and claimants;
later, it increased the required percentage to 99 percent. In so
doing, Daiichi was seeking assurance of a virtual end to Olmesartan
litigation. As it turned out, this requirement fostered Daiichi's
success in getting the MDL terminated as no individual litigants
remained after the administration of the Olmesartan settlement
program and the damage award payouts.
The Plaintiffs' counsel had their own aims in the settlement. These
depended on the extent of their legal efforts to receive
compensation, which was based on a contingency fee agreement
between the attorney and the registrant. This meant the attorney
received a contracted-for percentage of the individual client's
damage award. It may be that some plaintiffs' counsel exerted
minimal effort to get their clients registered in the Olmesartan
settlement program by using paralegals or junior associates to help
clients fill out the registration forms, obtain the needed medical
records, and answer clients' queries as to how long payout would
take. And, for most plaintiffs' counsel, the contingency fee
agreement the client signed typically gave counsel a minimum of one
third of the client's damage award.
However, there were some plaintiffs' counsel who were responsible
for developing the litigation record: managing the litigation,
arguing discovery motions, obtaining and paying for experts,
conducting discovery, creating a record, taking depositions, etc.
Throughout the litigation and the settlement period, Adam Slater,
Esq., served as plaintiffs' lead counsel and headed the plaintiffs'
executive committee, supported by his law firm of Mazie Slater Katz
and Freeman, defendant herein. Not only were Mr. Slater's tasks
many and varied, but he steered the Plaintiffs' litigation efforts
to ensure the incentivization of Daiichi to settle.
Since products liability cases consolidated in a federal district
court, as in the Olmesartan MDL, are actionable only under state
law, plaintiffs residing in New Jersey were not eligible to be
consolidated into the Olmesartan MDL. That is, a New Jersey
litigant could enter their state law action into the District of
New Jersey MDL action, but only in a New Jersey state court. To be
clear, Plaintiff Martino and the putative class he allegedly
represents, as residents of New Jersey, were not litigants in the
Olmesartan MDL but rather were litigants in an Olmesartan
Multicounty Litigation ["MCL"] in New Jersey, docket number
ATL-L-00-15. Like the national Olmesartan MDL, the Olmesartan MCL
was a consolidated action. But, the MCL comprised only cases of New
Jersey residents who had ingested Olmesartan and had experienced
injury, whereas the MDL comprised cases filed by residents of all
other states. Moreover, like all other Olmesartan claimants, the
MCL litigants were eligible to register into the Olmesartan
settlement program upon its commencement on Aug. 1, 2017.
Before the Court in the Action are Mazie's motion to dismiss
["MTD"] the complaint under Fed.R.Civ.P. 12(b)(6) and Plaintiff
Martino's cross-motion for partial summary judgment under FRCP 56.
The complaint alleges Mazie's violation of New Jersey State Court
Rules, in particular, 1:21-7(i), because of Mazie's receipt of
continency fees gotten from the Olmesartan MDL settlement program,
which Martino alleges were greater than allowed by the Rule.
The MTD seeks dismissal with prejudice of all three claims of the
complaint, each of which depends on violation of the Rule: 1) the
over-compensation of a contingency fee; 2) because of the
over-compensation, the alleged conversion by Mazie of Olmesartan
MDL settlement amounts that should have gone to New Jersey
litigants; and 3) consequently, an alleged unjust enrichment to
Mazie. If there is no violation of the contingency fee Rule, then
Mazie alleges that the complaint cannot state a claim for which
relief can be granted.
II. Discussion
The parties note the resolution of this MTD depends on the proper
interpretation of certain language in New Jersey Court Rule
1:21-7(i). As the parties dispute which paragraph of Rule 1:21-7
applies, the entire Rule is provided in the footnote. The issue is
whether each claim of injury of each New Jersey plaintiff in the
Olmesartan MCL, arising from ingestion of Olmesartan, is
sufficiently similar to fall within the language of Rule 1:21-7.
That is, the issue is whether the claims of each New Jersey
Plaintiff in the MCL arose "out of the same transaction or set of
facts or involve substantially identical liability issues". Since
clearly different New Jersey Plaintiffs bought and ingested
Olmesartan in different transactions and at different times, the
dispute practically devolves to whether all claims in the MCL
"involve substantially identical liability issues".
Plaintiff Martino argues that all liability claims of the former
MCL Plaintiffs do indeed fall within that substantially identical
description and that the Rule therefore applies. If, as Martino
argues, all MCL claims do have "substantially identical liability
issues", then the contingency fees Mazie received and which arise
from the Olmesartan settlement awards of the former MCL Plaintiffs
must be limited to those stated in Rule 1:21-7(i). Martino, and the
putative Plaintiff class he seeks to represent, therefore demand a
recalculation of the Olmesartan settlement contingency fees
according to the Rule and a refund of the excess fees paid to
Mazie.
Mazie argues that all claims of the former MCL Plaintiffs do not
arise from either the same transaction or the same facts nor
involve a substantially identical liability. Further, Mazie argues,
Rule 1:21-7(i) cannot apply to Mazie's contingency fees obtained in
the Olmesartan settlement program because of the disparity in
specific liability issues from registrant to registrant. Mazie
deduces that, if Rule 1:21-7(i) does not apply to its Olmesartan
settlement contingency fees, then Martino's complaint cannot state
a claim upon which relief may be granted since all three counts in
the Martino complaint require violation of Rule 1:21-7(i).
Ultimately, Judge Kugler holds that the plain language of Rule
1:21-7(i) does not apply to cases consolidated either in a
Multicounty litigation or a Multidistrict litigation. And this
inapplicability has nothing to do with the specific, underlying
legal issues, whether business torts or products liability. This
holding arises from the Court's experience as the transferee Court
of the Olmesartan MDL to observe firsthand that the administration
of the Olmesartan settlement program concerned not only the common
liability issue of injury caused by Olmesartan ingestion but also
the very different and the very specific factual details of each
such injury for each consolidated case.
Since each case registered in the Olmesartan settlement program had
a common liability as well as specific facts that supported a
unique damage award, such cases, including Martino's and those of
the putative class of plaintiffs here, cannot ground allegations
that give rise to the applicability of Rule 1:21-7(i).
Although not finding New Jersey (or other state) case law that
applies Rule 1:21-7(i) to MDL or MCL litigations, Judge Kugler has
also deliberated over the equitable nature of the Defendants' award
as raised by Martino's unjust enrichment claim. He has come across
class action cases in New Jersey where Rule 1:21-7(i) has been
suspended, especially in business tort contexts; these include the
seminal case Incollingo v. Canuso, A.2d 778 (App. Div. 1997), and
the sequential case Lubitz v. DaimlerChrysler Corp., 2006 WL
3780789 (Sup. Ct. Bergen County, 21 Dec 2006). While not concerning
product liability issues as in the Olmesartan settlement program,
these cases give a glimmer of understanding as to when the Rule may
be excepted.
Mindful that Incollingo stated expressly no exception to the Rule
exists for products liability cases, Judge Kugler nonetheless finds
illustrative Judge Harris's reasoning in Lubitz. There Judge Harris
recalculated the attorneys' fees in a breach of warranty class
action by applying both Incollingo to keep the contingency fee
outside of the Rule WHILE using Third Circuit Gunter methodology.
To the point, such methodology comprises "the most mature and
well-developed analyses of attorneys' fees" of any other Circuit
Court.
Judge Harris' balancing of the Gunter factors and the Incollingo
exception to the contingency fee calculation exemplifies in a
practical way why the Rule does not apply here. Upon calculating
that the attorney fee award under the Incollingo exception would
have amounted to 20% of the total settlement award, Judge Harris
applied the Gunter factors to reduce that percentage to 15% of the
total settlement amount, which he found more reasonable and
equitable.
The total amount of the Olmesartan settlement was approximately
$380 million. Besides the negotiated contingency fee agreements --
which the Court was not privy to, but estimates were generally at
least 33 -- 1/3 % of each Plaintiff's settlement award -- the
Plaintiffs' attorneys were compensated from a common benefit fund.
This fund awarded the Plaintiffs' attorneys 9.5% in fees of the
total settlement award, which was apportioned among those law firms
that had evidenced common benefit work for the litigation and
settlement. To the point, the 9.5% of the total settlement award
was distributed according to the efforts of dozens of specific law
firms; it was awarded based on evidence and the Court's
deliberation.
In essence, the common benefit fund award was remuneration to the
Olmesartan registrants' attorneys for their efforts to steer the
MDL litigation and to bring the MDL to settlement. The MCL
litigants unwittingly benefited from these common benefit efforts,
which propelled the Olmesartan settlement program.
III. Conclusion
Since Judge Kugler has found the language of the Rule inapplicable
to the MCL and the MDL Plaintiffs and since the common benefit fund
award is well within the reasonable and equitable percentages of
Third Circuit examples, Mazie's motion to dismiss is granted with
prejudice. This decision also resolves the Plaintiff's outstanding
partial motion for summary judgment since the claims do not state a
cause of action for which relief can be granted. Accordingly, Judge
Kugler directs the Clerk to close the matter.
A full-text copy of the Court's May 6, 2022 Opinion/Order is
available at https://tinyurl.com/mtcjxtjb from Leagle.com.
MCKESSON CORP: Appeals Damages Award in True Health TCPA Suit
-------------------------------------------------------------
McKesson Corporation, et al., filed an appeal from a court ruling
awarding damages to plaintiffs in the lawsuit entitled TRUE HEALTH
CHIROPRACTIC INC, et al., Plaintiffs v. McKESSON CORPORATION, et
al., Defendants, Case No. 13-cv-02219-HSG, in the U.S. District
Court for the Northern District of California, Oakland.
Plaintiffs True Health and McLaughlin brought this putative class
action against Defendants McKesson Corp. and McKesson Technologies,
Inc. ("MTI"), alleging that the Defendants sent unsolicited faxes
in violation of the Telephone Consumer Protection Act ("TCPA"), 47
U.S.C. Section 227.
While the Court initially granted the Plaintiffs' motion for class
certification, an intervening FCC decision changed the requirements
for TCPA liability. As a result, the Court entered summary judgment
against those who had received the faxes via an online fax service,
and the stand-alone fax machine class was ultimately decertified.
This left only the Plaintiffs' individual claims for the
Defendants' alleged violations of the TCPA and for treble damages.
The Court approved the parties' request that these remaining claims
be decided by the Court through a streamlined bench trial, with no
live testimony. The parties submitted deposition testimony, witness
declarations, briefs, and an omnibus stipulation.
Of the 13 Faxes received by the Plaintiffs, four purported to be
from an identified person, Kari Holloway. Ms. Holloway's electronic
signature and, immediately below that signature, identified her as
follows: Kari Holloway Vice President-Direct Sales, Medisoft
Physician Practice Solutions McKesson Corporation
kari.holloway@mckesson.com. None of the Faxes made any reference to
MTI or purported to be from a representative of MTI.
As previously reported in the Class Action Reporter, the Court
awarded True Health damages of $500 and McLaughlin Chiropractic
Associates, Inc., damages of $6,000.
The Defendants are taking an appeal from this order.
The appellate case is captioned as True Health Chiropractic, Inc.,
et al. v. McKesson Corporation, et al., Case No. 22-15710, in the
United States Court of Appeals for the Ninth Circuit, filed on May
10, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellants McKesson Corporation and McKesson Technologies,
Inc. Mediation Questionnaire was due on May 17, 2022;
-- Transcript shall be ordered by June 8, 2022;
-- Transcript is due on July 8, 2022;
-- Appellants McKesson Corporation and McKesson Technologies,
Inc. opening brief is due on August 17, 2022;
-- Appellees McLaughlin Chiropractic Associates, Inc. and True
Health Chiropractic, Inc. answering brief is due on September 16,
2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Defendants-Appellants MCKESSON CORPORATION and MCKESSON
TECHNOLOGIES, INC. are represented by:
Tiffany Cheung, Esq.
Bonnie Lau, Esq.
MORRISON & FOERSTER, LLP
425 Market Street
San Francisco, CA 94105-2482
Telephone: (415) 268-7000
- and -
Joseph R. Palmore, Esq.
MORRISON & FOERSTER LLP
2100 L Street NW, Suite 900
Washington, DC 20037
Telephone: (202) 887-1500
Plaintiffs-Appellees TRUE HEALTH CHIROPRACTIC, INC. and MCLAUGHLIN
CHIROPRACTIC ASSOCIATES, INC., individually and as representatives
of a class of similarly situated persons, are represented by:
Ross M. Good, Esq.
Glenn L. Hara, Esq.
ANDERSON & WANCA
3701 Algonquin Road, Suite 500
Rolling Meadows, IL 60008
Telephone: (847) 368-1500
- and -
Willem Jonckheer, Esq.
Dustin Schubert, Esq.
Robert C. Schubert, Esq.
SCHUBERT JONCKHEER & KOLBE LLP
Three Embarcadero Center
San Francisco, CA 94111
Telephone: (415) 788-4220
MEDSCAN LABORATORY: Byrne Files Suit in D. North Dakota
-------------------------------------------------------
A class action lawsuit has been filed against Medscan Laboratory,
Inc. The case is styled as Beatrice Byrne, individually and on
behalf of all others similarly situated v. Medscan Laboratory, Inc.
doing business as: Adapative Health Integrations, Case No.
1:22-cv-00084-DMT-CRH (D.N.D., May 13, 2022).
The nature of suit is stated as Other P.I. for Personal Injury.
MedScan Laboratory -- https://www.medscanlab.com/ -- is a
family-owned, clinical testing laboratory that offers medical
testing services for health care.[BN]
The Plaintiff is represented by:
David Kevin Lietz, Esq.
LIETZ LAW FIRM
1717 K Street NW, Suite 900
Washington, DC 20006
Phone: (202) 349-9869
Email: dlietz@lietzlaw.com
MERCEDES-BENZ USA: Corona Files Suit in C.D. California
-------------------------------------------------------
A class action lawsuit has been filed against Mercedes-Benz USA
LLC, et al. The case is styled as Keisha Corona, individually, and
on behalf of all others similarly situated v. Mercedes-Benz USA
LLC, Does 1 through 10, inclusive, Case No. 2:22-cv-02962-DSF-SK
(C.D. Cal., May 3, 2022).
The nature of suit is stated as Other Contract for Breach of
Contract.
Mercedes-Benz -- https://www.mbusa.com/en/home -- combines luxury
with performance across the full line of models including luxury
sedans, SUVs, coupes, roadsters, convertibles & more.[BN]
The Plaintiff is represented by:
Adam Morris Rose, Esq.
Robert L Starr, Esq.
Theodore Richard Tang, Esq.
LAW OFFICES OF ROBERT STARR APC
23901 Calabasas Road No 2072
Calabasas, CA 91302
Phone: (818) 225-9040
Fax: (818) 225-9042
Email: adam@starrlaw.com
robert@starrlaw.com
theodore@starrlaw.com
- and -
Emanuel M Starr, Esq.
FRONTIER LAW CENTER APC
23901 Calabasas Road Suite 2074
Calabasas, CA 91302
Phone: (818) 914-3433
Fax: (818) 914-3433
Email: eservice@frontierlawcenter.com
MICHIGAN: Rouse's Bid to Revisit Denial of Prelim. Injunction Nixed
-------------------------------------------------------------------
In the case, ARTHUR J. ROUSE, et al., Plaintiffs v. HEIDI E.
WASHINGTON, et al., Defendants, Civil Action No. 20-cv-11409 (E.D.
Mich.), Judge Mark A. Goldsmith of the U.S. District Court for the
Eastern District of Michigan, Southern Division, denies the
Plaintiffs' motion for reconsideration of the Court's denial of the
Plaintiffs' motion for a preliminary injunction.
The lawsuit is a class action for injunctive relief brought by the
Plaintiffs, prisoners incarcerated at the Southern Michigan
Temporary Facility (SMT), against the Defendants, current or former
employees of either SMT or the Michigan Department of Corrections
(MDOC). The Plaintiffs previously filed a motion for a preliminary
injunction, arguing that the Defendants' current COVID-19 protocols
are insufficient and asking the Court to order the Defendants to
implement additional measures. In their reply in support of their
motion for a preliminary injunction, the Plaintiffs argued that a
pre-pandemic case, Darrah v. Drisher, 865 F.3d 361 (6th Cir. 2017),
was the controlling precedent, not Wilson v. Williams, 961 F.3d 829
(6th Cir. 2020).
The Court denied the Plaintiffs' motion for a preliminary
injunction. As the Court explained, under "the controlling
precedent on deliberate indifference by prison officials in
responding to the COVID-19 pandemic" in this circuit, Wilson, the
Plaintiffs had not shown a strong likelihood of success on the
merits. In reaching this conclusion, the Court described why the
Plaintiffs' arguments in reliance on Darrah were "misplaced," and
why the Defendants' alleged failure to take certain additional
preventative measures did not show that Defendants acted
unreasonably.
The Court also determined that the Plaintiffs failed to establish
irreparable harm absent a preliminary injunction by not
substantiating their claim that their requested relief would
prevent an increase in positive infections. Finally, the public
interest -- specifically, "separation of powers and federalism
concerns" and "the potential deleterious impact of a preliminary
injunction on the functioning and safety of Michigan's prison
system" -- favored denying the motion.
The Plaintiffs have now filed a motion for reconsideration of the
Court's opinion denying their motion for a preliminary injunction.
They base their motion on the first ground -- that "the Court made
a mistake, correcting the mistake changes the outcome of the prior
decision, and the mistake was based on the record and law before
the Court at the time of its prior decision."
The Plaintiffs point to a number of "mistakes," such as the Court's
reliance on Wilson, rather than on Darrah, and the Court's
disagreement with their position that the Defendants' current
COVID-19 mitigation efforts are insufficient to meet their Eighth
Amendment obligations. Ultimately, Judge Goldsmith opines that all
of these "mistakes" are just the Plaintiffs' old arguments
repackaged. The Court has already rejected these arguments, and a
motion for reconsideration is not a proper vehicle to rehash such
arguments. Judge Goldsmith will not permit Plaintiffs a second bite
at the apple. Accordingly, he denies the Plaintiffs' motion for
reconsideration.
A full-text copy of the Court's May 6, 2022 Opinion & Order is
available at https://tinyurl.com/56tna93f from Leagle.com.
MINDBODY INC: VFIC Seeks Declaratory Relief From Insurance Suit
---------------------------------------------------------------
VALLEY FORGE INSURANCE COMPANY and THE CONTINENTAL INSURANCE
COMPANY, individually and on behalf of all others similarly
situated, Plaintiffs v. MINDBODY, INC.; CLASSPASS, LLC; CLASSPASS,
INC.; PAYAL KADAKIA; and FRITZ LANMAN, Defendants, Case No.
2:22-cv-03226 (C.D. Cal., May 12, 2022) is a class action against
the Defendants to obtain a judicial determination and declaration
of the Plaintiffs' respective rights and obligations under the
insurance policies they issued to Mindbody, Inc.
In particular, the Plaintiffs seek a determination and declaration
by this court that (i) ClassPass, Inc., Fritz Lanman, and Payal
Kadakia are not entitled to coverage under the policies because
they do not constitute insureds; (ii) the allegations in the
lawsuit styled Tipsy Nail Club LLC, et al. v. ClassPass, Inc., et
al., Case No. 21 Civ. 8662, do not trigger the primary policy's
insuring agreement because they do not potentially seek damages for
personal and advertising injury, and (iii) even if the insuring
agreement is triggered, several exclusions in the primary policy
apply to preclude coverage. Because the policies do not provide
coverage for the lawsuit, Valley Forge Insurance Company (VFIC)
seeks declaratory relief and a money judgment in this action for
reimbursement of defense costs that it has expended in connection
with providing ClassPass, LLC a defense in the lawsuit.
Valley Forge Insurance Company is an insurance firm based in
Chicago, Illinois.
The Continental Insurance Company is an insurance firm based in
Chicago, Illinois.
MindBody, Inc. is a corporation organized and existing under the
laws of the State of Delaware and maintains its principal place of
business in San Luis Obispo, California.
ClassPass, LLC is a limited liability company doing business in
California.
ClassPass, Inc. was a corporation based in New York. The company no
longer exists following a merger with MindBody in which the
surviving entity was ClassPass, LLC. [BN]
The Plaintiffs are represented by:
Robert C. Christensen, Esq.
CNA COVERAGE LITIGATION GROUP
555 Mission Street, Suite 200
San Francisco, CA 94105
Telephone: (415) 932-7018
Facsimile: (866) 534.1036
E-mail: robert.christensen@cna.com
- and –
Daniel C. Streeter, Esq.
2 Park Plaza, Suite 400
Irvine, CA 92614
Telephone: (949) 399-4945
Facsimile: (949) 788-8980
E-mail: Daniel.streeter@cna.com
MINDED INC: Chalas Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Minded Inc. The case
is styled as Ana Chalas, individually, and on behalf of all others
similarly situated v. Minded Inc., Case No. 1:22-cv-03956
(S.D.N.Y., May 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Minded -- https://www.tryminded.com/ -- is a consumer telehealth
company that makes getting mental health medication easy and
affordable.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
MONTANA UNIVERSITY: Cole, et al., Submit Class Cert Reply Brief
---------------------------------------------------------------
In the class action lawsuit captioned as Catherine Cole, Barbara
Koostra, Mary-Ann Sontag Bowman, and Rhondie Voorhees, individually
and on behalf of all others similarly situated, v. Montana
University System, University of Montana-Missoula, and John Doe
Defendants 1-50, Case No. 9:21-cv-00088-BMM (D, Mont.), the
Plaintiffs submit their reply brief in support of their Motion for
Class Certification.
The Plaintiffs propose the following class definition of all
identifiable individuals who:
1. were employed by the Defendants at any point since 2013,
2. because of UM's and MUS's discriminatory culture, the
individual was "on the basis of sex" treated unfavorably,
treated differently from men, harassed, retaliated
against, or discriminated against, and
3. the individual was:
a. forced to resign,
b. the Defendants terminated their position, and/or
c. the Defendants created no, or limited, options for
professional growth.
Contrary to the Defendants' arguments, this definition does not
include every conceivable Title IX violation. It requires that the
Title IX violation resulted from the "discriminatory culture" and
the individual was forced to resign, their position terminated, or
had no/limited options for professional growth. There are many
other Title IX violations outside of this definition.
The Montana University System was created on July 1, 1994, when the
Montana Board of Regents of Higher Education restructured the
state's public colleges and universities, with the goal of
streamlining the state's higher education in the wake of decreased
state funding.
A copy of the Plaintiffs' motion dated April 29, 2022 is available
from PacerMonitor.com at https://bit.ly/3wAYkT8 at no extra
charge.[CC]
The Plaintiffs are represented by:
Hillary P. Carls, Esq.
Sherine D. Blackford, Esq.
BLACKFORD CARLS P.C.
602 W. Lamme Street
Bozeman, MT 59715
Telephone: (406) 577-2145
Facsimile: (406) 219-0256
E-mail: carls@blackfordcarls.com
sherine@blackfordcarls.com
MRS BPO LLC: Goldstein FDCPA Suit Removed to E.D. New York
----------------------------------------------------------
The case styled as Miriam Goldstein, individually and on behalf of
others similarly situated v. MRS BPO, LLC, Case No. EF001871/2022
was removed from the Supreme Court of the State of New York, to the
U.S. District Court for the Eastern District of New York on May 11,
2022.
The District Court Clerk assigned Case No. 1:22-cv-02750 to the
proceeding.
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
MRS BPO LLC -- https://portal.mrsbpo.com/ -- is a medium-sized debt
collection agency based in Cherry Hill, New Jersey, United
States.[BN]
The Plaintiff appears pro se.
The Defendant is represented by:
Michael Thomas Etmund, Esq.
MOSS & BARNETT
150 South Fifth Street, Suite 1200
Minneapolis, MN 55402
Phone: (612) 877-5309
Fax: (612) 877-5050
Email: mike.etmund@lawmoss.com
MRS BPO LLC: Heszkel FDCPA Suit Removed to E.D. New York
--------------------------------------------------------
The case styled as Devorah Heszkel, individually and on behalf of
others similarly situated v. MRS BPO, LLC, Case No. 5-9225/2022 was
removed from the Supreme Court of the State of New York, to the
U.S. District Court for the Eastern District of New York on May 11,
2022.
The District Court Clerk assigned Case No. 1:22-cv-02752 to the
proceeding.
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
MRS BPO LLC -- https://portal.mrsbpo.com/ -- is a medium-sized debt
collection agency based in Cherry Hill, New Jersey, United
States.[BN]
The Plaintiff appears pro se.
The Defendant is represented by:
Michael Thomas Etmund, Esq.
MOSS & BARNETT
150 South Fifth Street, Suite 1200
Minneapolis, MN 55402
Phone: (612) 877-5309
Fax: (612) 877-5050
Email: mike.etmund@lawmoss.com
MULLEN AUTOMOTIVE: Gru Sues Over 10% Decline of Stock Price
-----------------------------------------------------------
DAVID GRU, individually and on behalf of all others similarly
situated, Plaintiff v. MULLEN AUTOMOTIVE, INC. F/K/A NET ELEMENT,
INC., DAVID MICHERY, and OLEG FIRER, Defendants, Case No.
8:22-cv-00976 (C.D. Cal., May 12, 2022) is a class action against
the Defendants for violations of the Securities Exchange Act of
1934.
According to the complaint, the Defendants made materially false
and/or misleading statements with the U.S. Securities and Exchange
Commission (SEC) concerning Mullen's business, operational and
financial results in order to trade Mullen securities at
artificially inflated prices between June 15, 2020 and April 6,
2022. Specifically, the Defendants failed to disclose that: (1)
Mullen overstates its ability and timeline regarding production;
(2) Mullen overstates its deals with business partners, including
Qiantu; (3) Mullen overstates its battery technology and
capabilities; (4) Mullen overstates its ability to sell its branded
products; (5) Net Element did not conduct proper due diligence into
Mullen Technologies; (6) the Dragonfly K50 was not solely delayed
due to the COVID-19 pandemic; and (7) as a result, the Defendants'
public statements were materially false and/or misleading at all
relevant times.
When the truth emerged, Mullen's stock price fell $0.27 per share,
or 10 percent, to close at $2.38 per share on April 7, 2022, on
unusually heavy trading volume, damaging investors, the suit
added.
Mullen Automotive, Inc., formerly known as Net Element, Inc., is an
electronic vehicle manufacturer, with its principal executive
offices at 1405 Pioneer Street, Brea, California. [BN]
The Plaintiff is represented by:
Jennifer Pafiti, Esq.
POMERANTZ LLP
1100 Glendon Avenue, 15th Floor
Los Angeles, CA 90024
Telephone: (310) 405-7190
E-mail: jpafiti@pomlaw.com
MUNK PACK INC: Chalas Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Munk Pack Inc. The
case is styled as Ana Chalas, individually, and on behalf of all
others similarly situated v. Munk Pack Inc., Case No. 1:22-cv-03954
(S.D.N.Y., May 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Minded -- https://www.tryminded.com/ -- is a consumer telehealth
company that makes getting mental health medication easy and
affordable.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
MUSCLEPHARM CORP: Metague Sues Over Nutrition Powders' False Labels
-------------------------------------------------------------------
DANIEL METAGUE, individually and on behalf of all others similarly
situated, Plaintiff v. MUSCLEPHARM CORPORATION C/O VCORP SERVICES,
LLC, Defendant, Case No. 8:22-cv-01153-PX (D. Md., May 12, 2022) is
a class action against the Defendant for violation of the Maryland
Consumer Protection Act, breach of implied warranty, breach of
express warranty, fraud by omission, equitable injunctive and
declaratory relief, and unjust enrichment.
The case arises from the Defendant's alleged false, deceptive, and
misleading advertising, labeling, and marketing of its nutritional
powders containing branched-chain amino acids labeled "Essentials
BCAA." The Defendant's packaging and advertising of the product
fails to disclose its caloric information to allegedly create a
competitive advantage against compliant competitors. Contrary to
the Defendant's representations, the actual calorie estimate for
the product is about 30 calories, depending on formulation and use
guidance, which can include multiple servings per day.
As a result of the Defendant's misrepresentations and omissions,
the Plaintiff and Class members have been damaged by failing to
receive the benefit of their bargains, says the suit.
MusclePharm Corporation is a manufacturer of health supplements,
vitamins, and nutritional protein powders, with its principal
office in Nevada. [BN]
The Plaintiff is represented by:
Nicholas A. Migliaccio, Esq.
Jason S. Rathod, Esq.
412 H Street NE, Suite 302
Washington, DC 20002
Telephone: (202) 470-3520
E-mail: nmigliaccio@classlawdc.com
jrathod@classlawdc.com
- and –
D. Aaron Rihn, Esq.
Sara J. Watkins, Esq.
ROBERT PIERCE & ASSOCIATES, P.C.
707 Grant Street, Suite 125
Pittsburgh, PA 15219
Telephone: (412) 281-7229
E-mail: arihn@peircelaw.com
- and –
Robert Mackey, Esq.
LAW OFFICES OF ROBERT MACKEY
P.O. Box 279
Sewickley PA 15143
Telephone: (412) 370-9110
E-mail: bobmackeyesq@aol.com
NABORS COMPLETION: Medrano Recovers Arbitration Award, Fees & Costs
-------------------------------------------------------------------
In the case, JUAN MEDRANO, Petitioner v. NABORS COMPLETION &
PRODUCTION SERVICES CO., a Delaware corporation, now known as C&J
Well Services, Inc., Respondent, Case No. 2:22-cv-0324 DDP (JPRx)
(C.D. Cal.), Judge Dean D. Pregerson of the U.S. District Court for
the Central District of California entered a judgment that the
Petitioner will recover award and fees against NABORS.
On April 2, 2015, two former employees of Respondent NABORS,
Brandyn Ridgeway and Tim Smith, filed a putative class action
alleging, among other things, claims under Labor Code Section
1194(a) and 1771 for failure to pay the minimum prevailing wage and
overtime, under Labor Code Section 226(e) for failure to provide
accurate itemized wage statements under Labor Code Section 226(a),
and for related interest and penalties, as well as attorneys' fees
and costs, (CACD Case No. 2:15-cv-03436-DDP-VBKx; "Ridgeway class
action").
On June 29, 2015, NABORS brought a motion to compel arbitration of
Ridgeway and Smith's individual claims pursuant to 9 U.SC. Section
2, the Federal Arbitration Act ("FAA") and a written arbitration
agreement that included a class action waiver.
On Oct. 13, 2015, the Court denied NABORS' motion to compel
arbitration, finding the arbitration agreement unenforceable.
NABORS timely appealed the denial of its motion to compel
arbitration.
On Feb. 13, 2018 the Ninth Circuit Court of Appeal issued a
Memorandum which reversed the Court's order denying the motion and
remanded with instructions.
On March 30, 2018, Petitioner Medrano, a putative class member in
the Ridgeway class action, commenced an individual arbitration at
JAMS. Medrano's individual claims were adjudicated by JAMS
Arbitrator Hon. Jeffrey King (Ret.) resulting in a Final
Arbitration Award issued Jan. 11, 2022, in favor of Medrano.
On Jan. 14, 2022, Medrano filed the instant Petition to Confirm
Final Arbitration Award, For Further Attorneys' Fees and Costs, and
to Enter Judgment Against Nabors; Nabors appeared, filed an answer
and filed a crossclaim to vacate the Final Award. On April 18,
2022, the Court granted Medrano's motion and confirmed the JAMS
Final Arbitration Award, issued on Jan. 11, 2022, in Medrano's
Arbitration JAMS Case No. 1220058995 and denied NABORS' request to
vacate the award.
Therefore, Judge Pregerson ordered that Petitioner Medrano will
recover against Respondent NABOR in the following amounts: The
amount of $381,179.54 in damages, including statutory interest thru
Aug. 30, 2021, and continuing interest thereafter at $60.15 per
day, and $366,453.50 in attorneys' fees and $2,146.50 in costs as
awarded by the Arbitrator. Additional post-arbitration attorneys'
fees in the amount of $7,576.16 and costs in the amount of $400
awarded by the Court.
A full-text copy of the Court's May 6, 2022 Judgment is available
at https://tinyurl.com/xyadx5s from Leagle.com.
NATION COMPANY: Meahl Files Suit in W.D. Michigan
-------------------------------------------------
A class action lawsuit has been filed against The Nation Company,
LLC. The case is styled as D. Darren Meahl, individually and on
behalf of all others similarly situated v. The Nation Company, LLC,
Case No. 1:22-cv-00402-JMB-SJB (W.D. Mich., May 3, 2022).
The nature of suit is stated as Other Fraud.
The Nation Company publishes The Nation --
https://www.thenation.com/ -- is a political magazine that gives a
liberal voice to current events and issues.[BN]
The Plaintiff is represented by:
Gregory A. Mitchell, Esq.
Sharon S. Almonrode, Esq.
E. Powell Miller, Esq.
THE MILLER LAW FIRM PC
950 W University Dr., Ste. 300
Rochester, MI 48307
Phone: (248) 841-2200
Email: gam@millerlawpc.com
ssa@millerlawpc.com
epm@millerlawpc.com
NESTLE HEALTHCARE: Owen Sues Over Mislabeled Milk Products
----------------------------------------------------------
STEVEN OWEN, individually and on behalf of all others similarly
situated, Plaintiff v. NESTLE HEALTHCARE NUTRITION, INC.,
Defendant, Case No. 3:22-cv-02855 (D.N.J., May 16, 2022) is a class
action against the Defendant's BOOST-brand Glucose Control
over-the-counter drinks with the name "Glucose Control"
(collectively, the "Product" or "Products").
According to the complaint, the Products are sold as "nutritional
drinks" specifically "designed for people with diabetes" to "help
manage blood sugar." The Product name itself, Glucose Control,
reaffirms its claimed purpose - to control glucose.
The Defendant's alleged representations that the Products control
glucose are false and misleading. Defendant's representations are
reasonably understood by consumers to mean that the Products will
control and manage blood glucose levels. However, Defendant's own
clinical trial concluded that the Products were associated with
merely a lesser rise in glucose levels as compared to one other
unidentified nutritional drink. Shockingly, the Products do not
control glucose at all, but rather only produce a slightly
favorable response to glucose levels as compared to one other
unidentified product.
The Defendant's prominent and systematic mislabeling of the
Products and its false and deceptive advertising form a pattern of
unlawful and unfair business practices that harms the public and,
if unstopped, could continue to lead to substantial harm, the suit
added.
NESTLE HEALTHCARE NUTRITION, INC. provides nutritional solutions
for people with specific dietary needs related to illnesses,
diseases, and, age. The Company offers its products to infant,
health care, and performance nutrition, and weight management.
Nestle HealthCare Nutrition serves customers worldwide. [BN]
The Plaintiff is represented by:
Joel B. Strauss, Esq.
KAPLAN FOX & KILSHEIMER LLP
850 Third Avenue
New York, NY 10022
Telephone: (212) 687-1980
Email: jstrauss@kaplanfox.com
- and -
William J. Pinilis, Esq.
KAPLAN FOX & KILSHEIMER LLP
160 Morris Street
Morristown, NJ 07960
Telephone: (973) 656-0222
Email: wpinilis@kaplanfox.com
- and -
Laurence D. King, Esq.
Matthew B. George, Esq.
Blair E. Reed, Esq.
KAPLAN FOX & KILSHEIMER LLP
1999 Harrison Street, Suite 1560
Oakland, CA 94612
Telephone: (415) 772-4700
Email: lking@kaplanfox.com
mgeorge@kaplanfox.com
breed@kaplanfox.com
- and -
Michael D. Braun, Esq.
KUZYK LAW, LLP
1999 Avenue of the Stars, Ste. 1100
Los Angeles, CA 90067
Telephone: (213) 401-4100
Email: mdb@kuzykclassactions.com
- and -
Ross B. Rothenberg, Esq.
THE ROTHENBERG LAW FIRM LLP
450 7th Avenue, 44th Floor
New York, NY 10123
Telephone: (212) 563-0100
Email: ross@injurylawyer.com
NESTLE USA: Prescott Appeals White Morsel False Ad Case Dismissal
-----------------------------------------------------------------
Plaintiffs Steven Prescott, et al., appeal the dismissal of their
lawsuit captioned STEVEN PRESCOTT and LINDA CHESLOW, individually
and on behalf of all others similarly situated, Plaintiffs v.
NESTLE USA, INC., and DOES 1 through 10, inclusive, Defendants,
Case No. 5:19-cv-07471-BLF, in the U.S. District Court for the
Northern District of California, San Jose.
In the putative class action, Plaintiffs Prescott and Cheslow
allege that Nestle's labeling and advertising of its "Nestle Toll
House Premier White Morsels" misleads consumers to believe that the
Product contains white chocolate when it does not.
The action was removed from the Santa Cruz County Superior Court
under the Class Action Fairness Act, 28 U.S.C.A. Section 1332(d).
The Plaintiffs thereafter filed a first amended complaint ("FAC")
as of right. The Court granted Nestle's motion to dismiss the FAC
with leave to amend ("Prior Dismissal Order"), based on the
Plaintiffs' failure to state a claim under California's Unfair
Competition Law ("UCL"), Cal. Bus. & Prof. Code Section 17200 et
seq., False Advertising Law ("FAL"), Cal. Bus. & Prof. Code Section
17500 et seq., or Consumers Legal Remedies Act ("CLRA"), Cal. Civ.
Code Section 1750 et seq. The Plaintiffs also failed to allege
facts establishing standing to seek injunctive relief, ruled the
Court. However, they timely filed their operative second amended
complaint ("SAC"), reasserting their claims under California's UCL,
FAL, and CLRA.
The Plaintiffs allege that they purchased the Product in the belief
that it contained white chocolate. Elsewhere in the SAC, the
Plaintiffs allege that Nestle labels its Product "'Premier White,'
misleading consumers into thinking that the Product contains
premier ingredients, not fake white chocolate."
The Plaintiffs allege that a "widespread consumer study" shows
among other things that approximately 95% of respondents believed
the Product contains white chocolate. They also reproduce numerous
consumer complaints that were sent to their counsel and/or posted
on Nestle's website. Two common themes in the alleged consumer
complaints are that the consumers thought the Product contains
white chocolate and the Product does not melt like chocolate during
baking.
The Plaintiffs seek to represent a nationwide class or,
alternatively, a California class of persons who purchased the
Product for personal consumption. As in the prior FAC, they assert
violations of California's UCL, FAL, and CLRA based on Nestle's
allegedly deceptive labeling and advertising. The Plaintiffs seek
injunctive relief and restitution.
As reported in the Class Action Reporter on April 26, 2022, Judge
Beth Labson Freeman of the U.S. District Court for the Northern
District of California, San Jose Division, granted Nestle's motion
to dismiss the second amended complaint without leave to amend and
dismissed the complaint with prejudice.
The appellate case is captioned as Steven Prescott, et al. v.
Nestle USA, Inc., Case No. 22-15706, in the United States Court of
Appeals for the Ninth Circuit, filed on May 10, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellants Linda Cheslow and Steven Prescott Mediation
Questionnaire was due on May 17, 2022;
-- Appellants Linda Cheslow and Steven Prescott opening brief is
due on July 5, 2022;
-- Appellee Nestle USA, Inc. answering brief is due on August 4,
2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiffs-Appellants STEVEN PRESCOTT and LINDA CHESLOW,
individually and on behalf of all others similarly situated, are
represented by:
Ryan Clarkson, Esq.
Bahar Sodaify, Esq.
CLARKSON LAW FIRM, PC
22525 Pacific Coast Highway
Malibu, CA 90265
Telephone: (213) 788-4050
E-mail: rclarkson@clarksonlawfirm.com
bsodaify@clarksonlawfirm.com
Defendant-Appellee NESTLE USA, INC. is represented by:
Keri Elizabeth Borders, Esq.
Dale Joseph Giali, Esq.
MAYER BROWN, LLP
350 S Grand Avenue, 25th Floor
Los Angeles, CA 90071
Telephone: (213) 229-5143
E-mail: kborders@mayerbrown.com
dgiali@mayerbrown.com
NESTLE USA: Rodgers Seeks Unpaid Overtime Wages Due to Kronos Hack
-------------------------------------------------------------------
TARYECHIA RODGERS, individually and on behalf of all others
similarly situated, Plaintiff v. NESTLE USA, INC. d/b/a NESTLE USA,
Case No. 1:22-cv-00502 (E.D. Va., May 6, 2022) seeks to recover
unpaid overtime wages and other damages owed by Nestle to Rodgers
and Nestle's other non-overtime-exempt workers, who were the
ultimate victims of not just the Kronos hack, but Nestle's decision
to make its own non-exempt employees workers bear the economic
burden for the hack.
According to the complaint, Nestle's timekeeping and payroll
systems were affected by the hack of Kronos in 2021, like many
other companies across the United States. That hack led to problems
in timekeeping and payroll throughout Nestle's organization.
As a result, Nestle's workers who were not exempt from overtime
under the Fair Labor Standards Act were not paid for all overtime
hours worked and/or were not paid their proper overtime premium on
time, if at all, for all overtime hours worked after the onset of
the Kronos hack, added the suit.
Ms. Rodgers has worked for Nestle since September 2021.
Nestle USA, Inc., d/b/a Nestle USA, is an American food & beverage
company.[BN]
The Plaintiff is represented by:
Tara Tighe, Esq.
MORGAN & MORGAN, P.A.
4250 North Fairfax Drive - Ste. 635
Arlington, VA 22203
Telephone: (571) 357-7598
E-mail: ttighe@forthepeople.com
- and -
C. Ryan Morgan, Esq.
MORGAN & MORGAN, P.A.
20 N. Orange Ave., 15th Floor
Orlando, FL 32801
Telephone: (407) 420-1414
Facsimile: (407) 867-4791
E-mail: rmorgan@forthepeople.com
- and -
Matthew S. Parmet, Esq.
PARMET PC
3 Riverway, Ste. 1910
Houston, TX 77056
Telephone: (713) 999-5228
E-mail: matt@parmet.law
NEW SCHOOL: S.D. New York Tosses Amable Class Suit With Prejudice
-----------------------------------------------------------------
In the case, ELIZABETH AMABLE and KAITLYN AMABLE, individually and
on behalf of all others similarly situated, Plaintiff v. THE NEW
SCHOOL, Defendant, Case No. 20-CV-3811 (KMK) (S.D.N.Y.), Judge
Kenneth M. Karas of the U.S. District Court for the Southern
District of New York granted the Defendant's Motion to Dismiss the
Second Amended Complaint.
I. Background
Plaintiffs Elizabeth Amable and Kaitlyn Amable bring the putative
class action against the Defendant, alleging that the Defendant's
transition to online classes amid the Covid-19 pandemic deprived
students and parents of students of the educational experience for
which they bargained, giving rise to breach of contract and unjust
enrichment claims.
The Defendant "is a private research university" centered in New
York. Elizabeth was "the parent of an undergraduate student at the
Defendant pursuing a Bachelor of Fine Arts in Communication Design"
who, on her daughter's behalf, "paid approximately $11,000 in
tuition and fees to Defendant for the Spring 2020 semester."
Kaitlyn, an undergraduate student attending the Defendant during
the Spring 2020 semester pursuing a Bachelor of Fine Arts in
Communication Design, "paid approximately $4,000 in tuition and
fees to Defendant for the Spring 2020 semester."
In order for Kaitlyn to enroll in the Spring 2020 Semester, the
Plaintiffs were responsible for the following fees for the Spring
2020 semester: $55 EPP Enrollment Fee; $600 University Services
Fee; and $8 Student Senate Fee. The Plaintiffs allege that the
University Services Fee "covers a range of supportive services for
students at The New School." Having paid these fees, Kaitlyn was
able to participate in the Defendant's Spring 2020 Semester, which
began on Jan. 21, 2020 and which proceeded without incident for the
next eight weeks; however, the Covid-19 pandemic brought normal
university operations to an abrupt halt in March, as the Defendant
announced that all classes would only be conducted online for the
remainder of the Spring 2020 semester.
The Plaintiffs allege that they "entered into a contractual
agreement" with the Defendant "for specific services," namely "an
on-campus, in-person education." Specifically, they aver that in
exchange for payment "in the form of tuition and fees," the
Defendant "was to provide in-person educational services,
experiences, opportunities, and other related services." The
Plaintiffs assert that the terms of the contract were "set forth in
publications from the Defendant," including: (1) the Defendant's
Spring Semester 2020 Course Catalog; (2) the Defendant's
"Attendance Statement"; (3) Kaitlyn's Course schedule; and (4) "The
New School's webpage."
The Plaintiffs allege more broadly that "the Communication Design
program [with which Kaitlyn is affiliated] at The New School relies
extensively on in-person instruction, peer collaboration, and
access to The New School's facilities."
Given the promises that the Plaintiffs contend are implicit within
these four fields of publication, the Plaintiffs allege that by
shifting its instruction to an online format, the "Defendant did
not deliver the educational services, facilities, access and/or
opportunities that the Plaintiffs and the putative class contracted
and paid for," because none of the facilities or services was
available to students during the suspension of in-person learning.
The Plaintiffs further allege that they have not been provided a
refund of any tuition monies or fees paid for the Spring 2020
semester, despite the shift to online learning, as the Defendant
has only "provided refunds 'on a pro-rated basis for residential
students leaving campus and those students who are on university
meal plans.'"
Accordingly, the Plaintiffs bring claims for breach of contract and
unjust enrichment. They seek "disgorgement of the pro-rated portion
of tuition and fees proportionate to the amount of time that
remained in the Spring Semester 2020 when classes moved online and
campus services ceased being provided." They also seek an order
certifying a class and subclass under Rule 23 of the Federal Rules
of Civil Procedure, compensatory and punitive damages, prejudgment
interest, an order of restitution "and all other forms of equitable
monetary relief," any injunctive relief deemed proper, and an order
awarding reasonable attorneys' fees to the putative class counsel.
The Plaintiffs filed their initial complaint on May 15, 2020, on
behalf of themselves and all people who paid tuition and fees for
the Spring 2020 semester at the New School. On July 29, 2020, the
Defendant filed a letter seeking leave to file a motion to dismiss
the Plaintiff's Complaint. In response, on Aug. 5, 2020, the
Plaintiffs filed a letter requesting permission to file an amended
complaint, which the Court granted the same day. The Plaintiffs'
First Amended Complaint was thereafter filed on Sept. 2, 2020. The
Defendant subsequently filed a Motion To Dismiss Plaintiff's First
Amended Complaint and supporting papers on Nov. 20, 2020. The
Plaintiffs filed their opposition papers on Dec. 23, 2020. The
Defendant filed its Reply on Jan. 7, 2021. On July 27, 2021, the
Court granted the Defendant's Motion To Dismiss without prejudice.
On Aug. 26, 2021, the Plaintiffs filed their SAC. The Defendant
sought leave to file the instant Motion on Sept. 9, 2021. Following
a pre-motion telephone conference on Oct. 19, 2021, the Court
adopted a briefing schedule for the instant Motion. Pursuant to
this schedule, the Defendant filed the instant Motion and
supporting papers on Nov. 18, 2021. After a modification to the
briefing schedule was made, the Plaintiffs timely filed their
Opposition on Dec. 20, 2021. Finally, the Defendant filed a Reply
on Jan. 19, 2022.
II. Analysis
The Defendant premises its Motion on two chief arguments: (1) that
Elizabeth, as a parent of a university student not in privity of
contract with the university itself, has no standing to sue, and
(2) that the Plaintiffs fail to state a claim for either breach of
contract or unjust enrichment.
A. Elizabeth's Standing
The Defendant argues that Elizabeth, as the parent of a student and
not in contractual privity with the Defendant, lacks standing to
enforce the terms of an agreement insofar as she is a third-party
beneficiary. The Plaintiffs argue otherwise, stating that
Elizabeth's monetary injury -- that she did not get what was
bargained for -- gives rise to standing.
Judge Karas holds that the Plaintiffs cannot establish Elizabeth's
standing to bring the Action. The Plaintiffs' citations to
inapposite jurisprudence -- both within and without the Second
Circuit -- hold little if any persuasive value. Judge Karas will
accordingly join the chorus of courts in New York, the Second
Circuit, and elsewhere in holding that parents asserting state law
claims of breach of contract and unjust enrichment lack standing in
the absence of contractual provisions establishing that they are
intended beneficiaries.
B. Failure to State a Claim for Breach of Contract
The Plaintiffs' SAC is nearly identical to the First Amended
Complaint with respect to the allegations regarding the first three
cornerstones of their theory of the Defendant's promise.
Conversely, the new substantive allegations the Plaintiffs raise
only speak to the fees paid, an allegation of the Defendant's bad
faith, and more detailed information regarding statements from the
Defendant's website which purportedly speak to the Defendant's
promises of in-person education. Finally, the Plaintiffs removed
allegations that spoke to the educational malpractice argument
already decided by the Court from the SAC, as well as claims of
conversion and money had and received.
Regarding the three hallmarks of the Plaintiffs' complaint, Judge
Karas opines that the SAC does not include any additional
allegations sufficient to preclude application of the law of the
case doctrine," which holds that "the mere filing of an amended
complaint does not entitle the Plaintiffs to relitigate [their]
claims absent new factual allegations." Because these duplicative
touchpoints all speak to in-person instruction as compared to
in-person services, facilities, or opportunities, Judge Karas will
not disturb the Court's holding: "the Court dismisses the
Plaintiffs' breach of contract claim to the extent this claim is
based on Defendant's alleged promise to provide exclusively
in-person classes."
Because the Plaintiffs added allegations regarding content the
Defendant placed on its website, all of which speak to in-person
"educational services, facilities, access and/or opportunities,"
Judge Karas considers these allegations anew. He finds that only
one of the Plaintiffs' newly added statements evinces specificity:
The Defendant's statement regarding the Innovation Center. The
remaining new allegations regarding impressive and career-improving
facilities simply "tout" the benefits of these potential services
or facilities when they are available to students, therefore more
closely resembling marketing "'opinion or puffery' that is 'too
vague to be enforced as a contract."
With respect to the lone potentially actionable promise, Judge
Karas opines that the Defendant's decision to restrict access
pursuant to applicable state law and/or based on public health
concerns "represents an exercise of authority expressly reserved to
it, and the exercise of that authority cannot constitute a breach."
He sees no reason as to why this reasoning would not apply with
equal force with regard to in-person learning experiences beyond
classroom instruction. Finally, the Plaintiffs do not quarrel with
the degree ultimately conferred, nor can they reasonably argue that
the disclaimer fails to incorporate the very facilities about which
they claim breach of contract.
3. Failure to State a Claim for Unjust Enrichment
The Defendant argues that the Plaintiffs' claim for unjust
enrichment is duplicative of its breach of contract claim and thus
must be dismissed. It alternatively argues that the Plaintiff has
not sufficiently plead the elements of such an unjust enrichment
claim, even if they were entitled to assert such a claim. The
Plaintiffs rebut Defendant by framing the latter's argument as
questioning the existence of a contract.
Judge Karas holds that the Plaintiffs plainly misconstrue
Defendant's argument: Defendant does not "dispute the nature and
existence" of a contract, implied or otherwise; as the Court noted
in its prior opinion, "though the Parties dispute the scope of the
contractual relationship, and whether it encompassed certain
promises and obligations, they do not contest the existence of the
contractual relationship itself." The Defendant has not abandoned
this argument, but only reaffirmed and elucidated its position as
to what it promised Kaitlyn following her matriculation to the
university and her subsequent payment of tuition. To that end, the
Defendant is correct that the "Plaintiffs' unjust enrichment claim
must be dismissed as duplicative of their breach of contract cause
of action."
III. Conclusion
For the foregoing reasons, Judge Karas granted the Defendant's
Motion and dismissed the Complaint with prejudice.
The Clerk is respectfully directed to terminate the Motion to
Dismiss, and to close the case.
A full-text copy of the Court's May 6, 2022 Opinion & Order is
available at https://tinyurl.com/ycxuy63h from Leagle.com.
Alec M. Leslie, Esq. -- aleslie@bursor.com -- Philip L. Fraietta,
Esq. -- pfraietta@bursor.com -- Bursor & Fisher, P.A., in New York
City, Counsel for the Plaintiffs.
Sarah Westcot, Esq. -- swestcot@bursor.com -- Bursor & Fisher,
P.A., in Miami, Florida, Counsel for the Plaintiffs.
Jonathan M. Kozak, Esq. -- Jonathan.Kozak@jacksonlewis.com -- Isaac
J. Burker, Esq. -- Isaac.Burker@jacksonlewis.com -- Susan Deegan
Friedfel, Esq. -- Susan.Friedfel@jacksonlewis.com -- Jackson Lewis
P.C., in White Plains, New York, Counsel for the Defendant.
NFP RETIREMENT: Mismanage Retirement Plans, Mills Suit Alleges
--------------------------------------------------------------
MICHELLE MILLS; COY SARELL; CHAD WESTOVER; BRENT ALESHIRE; BARBARA
KERSHNER; PAULA SCHAUB; and JENNIFER SILVA, individually and on
behalf of the Molina Salary Savings Plan and all others similarly
situated, Plaintiffs v. NFP RETIREMENT, INC., Defendant, Case No.
8:22-cv-00994 (C.D. Cal., May 16, 2022) alleges violation of the
Employee Retirement Income Security Act.
According to the Plaintiff in the complaint, instead of acting in
the exclusive best interest of participants, the Defendant caused
the Plan to invest in flexPATH's untested target date funds, which
replaced established and well-performing target date funds used by
participants to meet their retirement needs. NFP also caused the
Plan to pay unreasonable investment management expenses to be
charged to the Plan.
NFP RETIREMENT, INC. offers investment advisory services. The
Company provides financial planning, portfolio management, asset
allocation, risk tolerance, and pension consulting services. NFP
Retirement serves customers in the State of California.
The Plaintiff is represented by:
Jerome J. Schlichter, Esq.
SCHLICHTER BOGARD & DENTON LLP
100 South Fourth Street, Suite 1200
St. Louis, MO 63102
Telephone: (314) 621-6115
Facsimile: (314) 621-5934
Email: jschlichter@uselaws.com
NISSAN NORTH: Faces Martinez Suit Over Defective Motor Vehicles
---------------------------------------------------------------
MINERVA MARTINEZ; SANDRA SCOTT; CARL GRAHAM; ANNE PARYS; DAVID
ORTIZ; SEAN CHAMBERS; and TIFFANY JAMES, individually and on behalf
of all others similarly situated, Plaintiff v. NISSAN NORTH AMERICA
INC., Defendant, Case No. 3:22-cv-00354 (M.D., Tenn., May 16, 2022)
is class action against the Defendants for failure to disclose
material facts and a safety concern to consumers.
Nissan manufactured, marketed, distributed, and sold the Class
Vehicles without disclosing that the Class Vehicle's Xtronic
Continuously Variable Transmission ("CVT") is defective.
Allegedly, the CVT Defect causes sudden, unexpected shaking and
violent jerking (commonly referred to as "juddering" or
"shuddering") when drivers attempt to accelerate their vehicles; it
causes the vehicle to lag or delay when the driver tries to
accelerate, causing an unsafe and unpredictable acceleration; it
exhibits a hard deceleration or "clunk" when drivers either slow
down or accelerate at low speeds; it causes complete transmission
failure in the middle of roadways; and it suffers catastrophic
failure, necessitating replacement.
NISSAN NORTH AMERICA INC. operates in the automotive industry. The
Company designs, develops, and manufactures Nissan vehicles and
distributes them through dealers in the United States. [BN]
The Plaintiff is represented by:
Gregory F. Coleman, Esq.
MILBERG COLEMAN BRYSON PHILLIPS
GROSSMAN PLLC
800 South Gay Street Suite 1100
Knoxville, TN 37929
Email: gcoleman@milberg.com
- and -
Tarek Zohdy, Esq.
Cody R. Padgett, Esq.
Laura E. Goolsby, Esq.
CAPSTONE LAW APC
1875 Century Park East, Suite 1000
Los Angeles, CA 90067
Telephone: (310) 556-4811
Facsimile: (310) 943-0396
Email: Tarek.Zohdy@capstonelawyers.com
Cody.Padgett@capstonelawyers.com
Laura.Goolsby@capstonelawyers.com
- and -
Norberto J. Cisneros, Esq.
Barbara McDonald, Esq.
MADDOX & CISNEROS, LLP
3230 S. Buffalo Drive, Suite 108
Las Vegas, Nevada 89117
Telephone: (702) 366-1900
Facsimile: (702) 366-1999
- and -
Melissa S. Weiner, Esq.
PEARSON SIMON & WARSHAW, LLP
800 LaSalle Avenue, Suite 2150
Minneapolis, MN 55402
Telephone: (612) 389-0600
Facsimile: (612) 389-0610
Email: mweiner@pswlaw.com
- and -
James C. Shah, Esq.
Natalie Finkelman Bennett, Esq.
MILLER SHAH LLP
1845 Walnut Street, Suite 806
Philadelphia, PA 19103
Telephone: (866) 540-5505
Facsimile: (866) 300-7367
Email: jcshah@millershah.com
nfinkelman@millershah.com
- and –
Lawrence Deutsch, Esq.
Russell D. Paul, Esq.
Amey J. Park Abigail J. Gertner, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-3000
Facsimile: (215) 875-4604
Email: ldeutsch@bm.net
rpaul@bm.net
apark@bm.net
agertner@bm.net
NUTRADRIED FOOD: Chalas Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Nutradried Food
Company, LLC. The case is styled as Ana Chalas, individually, and
on behalf of all others similarly situated v. Nutradried Food
Company, LLC, Case No. 1:22-cv-03916 (S.D.N.Y., May 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Nutradried Food Company, LLC doing business as Moon Cheese --
https://mooncheese.com/ -- is located in Ferndale, WA, United
States and is part of the Dairy Product Manufacturing
Industry.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
OLMA IV INC: Chalas Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Olma IV Inc. The case
is styled as Ana Chalas, individually, and on behalf of all others
similarly situated v. Olma IV Inc., Case No. 1:22-cv-03891
(S.D.N.Y., May 12, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
OLMA -- https://olmafood.com/ -- is a major producer of fine
caviar, meat, fish and other gourmet foods since 2001.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
ONPOINT ROADSIDE: Fails to Pay Earned Minimum, OT Wages for Drivers
-------------------------------------------------------------------
Alexey Chacon, individually and on behalf of all others similarly
situated v. OnPoint Roadside Express, LLC, an Illinois Corporation,
d/b/a G&B Assistance; and Gregory C. Tate, III, Case No.
1:22-cv-02556 (N.D. Ill., May 13, 2022) is a collective and class
action complaint for unpaid wages, liquidated damages, attorneys'
fees, costs, and interest under the Fair Labor Standards Act, the
Illinois Minimum Wage Law, and the Illinois Wage Payment and
Collection Act arising from Defendants' failure to pay the
Plaintiff and other similarly-situated employees all earned minimum
and overtime wages.
The Plaintiff brings this action on behalf of himself and all
similarly-situated current and former employees of Defendants who
worked as Drivers and were classified by the Defendants as
independent contractors.
The Defendants have allegedly refused to reimburse the Plaintiff
and other similarly situated employees for gas, mileage,
maintenance, and other necessary expenditures incurred in their
work for Defendants.
Defendant Tate was the owner and operator of OnPoint. OnPoint
provides roadside assistance such as tire changes, fuel delivery,
jump starts and lockout services to its customers. Drivers,
including Plaintiff are required to answer calls from Defendants'
dispatch, which routes Drivers to service calls for Defendants'
customers who need roadside assistance.[BN]
The Plaintiff is represented by:
Michael L. Fradin, Esq.
LAW OFFICE OF MICHAEL L. FRADIN
8401 Crawford Ave. Ste. 104
Skokie, IL 60076
Telephone: (847) 986-5889
Facsimile: (847) 673-1228
E-mail: mike@fradinlaw.com
ORR GROUP: Abreu Files ADA Suit in S.D. New York
------------------------------------------------
A class action lawsuit has been filed against The Orr Group, LLC.
The case is styled as Luigi Abreu, individually, and on behalf of
all others similarly situated v. The Orr Group, LLC, Case No.
1:22-cv-03947 (S.D.N.Y., May 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Orr Group -- http://www.theorrgroup.com/-- is an independent
investment banking firm that provides merger & acquisition,
financing and strategic guidance & valuation advisory services to
middle market companies.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
OTIS WORLDWIDE: Faces Darnis Suit in Connecticut
------------------------------------------------
Otis Worldwide Corp. disclosed in its Form 10-Q Report for the
quarterly period ended March 31, 2022, filed with the Securities
and Exchange Commission on April 27, 2022, that it is facing a
putative class action lawsuit captioned "Geraud Darnis et al. v.
Raytheon Technologies Corporation et al.," was filed in the United
States District Court for the District of Connecticut in August 12,
2020 against Otis, Raytheon Technologies Corporation (RTX), Carrier
Global Corporation, which was also separated from UTC in the
Separation, each of their directors, and various incentive and
deferred compensation plans.
On September 13, 2021, plaintiffs filed an amended complaint
against the three company defendants only. The named plaintiffs are
former employees of UTC and its current and former subsidiaries,
including Otis and Carrier. They seek to recover monetary damages,
as well as related declaratory and equitable relief, based on
claimed decreases in the value of long-term incentive awards and
deferred compensation under nonqualified deferred compensation
plans allegedly caused by the formula used to calculate the
adjustments to such awards and deferred compensation from RTX,
Carrier, and Otis following the spin-offs of Carrier and Otis and
the subsequent combination of UTC and Raytheon Company.
Otis Worldwide Corp is an elevator and escalator manufacturing,
installation and service company based in Connecticut.
OTONOMO INC: Mollaei Suit Removed to C.D. California
----------------------------------------------------
The case styled as Saman Mollaei, individually and on behalf of all
others similarly situated v. Otonomo Inc., Case No. CGC22599118 was
removed from the Superior Court of CA, County of San Francisco, to
the U.S. District Court for the Northern District of California on
May 12, 2022.
The District Court Clerk assigned Case No. 3:22-cv-02854 to the
proceeding.
The nature of suit is stated as Other Fraud.
Otonomo -- https://otonomo.io/ -- provides car manufacturers,
drivers, and service providers with a cloud-based solution that
connects millions of cars.[BN]
The Plaintiff appears pro se.
The Defendant is represented by:
Elizabeth L. Deeley, Esq.
Michael H. Rubin, Esq.
Joseph C. Hansen, Esq.
Melanie Marilyn Blunschi, Esq.
LATHAM & WATKINS LLP
505 Montgomery Street, Suite 2000
San Francisco, CA 94111-6538
Phone: (415) 391-0600
Fax: (415) 395-8095
Email: elizabeth.deeley@lw.com
michael.rubin@lw.com
joseph.hansen@lw.com
melanie.blunschi@lw.com
PACE UNIVERSITY: Tapinekis Appeals Tuition Refund Suit Dismissal
----------------------------------------------------------------
Plaintiff Elizabeth Tapinekis appeals the court's dismissal of
claims in the lawsuit entitled Xaviera Marbury, individually and on
behalf of others similarly situated v. PACE UNIVERSITY, Case No.
1:20-cv-03210, in the United States District Court for the Southern
District of New York.
Ms. Tapinekis serves as the substitute for Xaviera Marbury as the
named Plaintiff in the case.
The lawsuit seeks refunds of the tuition and fees the Plaintiff and
other members of the proposed class are owed on a pro-rata basis,
together with other damages.
The Plaintiff has paid substantial tuition for the Spring 2020
semester either out of pocket or by utilizing student loan
financing. This case is as a result of the Defendant's decision to
close campus, constructively evict students, and transition all
classes to an online/remote format as a result of the Novel
Coronavirus Disease ("COVID-19").
While closing campus and transitioning to online classes was the
right thing for the Defendant to do, this decision deprived the
Plaintiff from recognizing the benefits of in-person instruction,
housing, meals, access to campus facilities, student activities,
and other benefits and services in exchange for which they had
already paid fees and tuition, the Plaintiff contends.
The Defendant has either refused to provide reimbursement for the
tuition, housing, meals, fees and other costs that the Defendant is
no longer providing, or has provided inadequate and/or arbitrary
reimbursement that does not fully compensate the Plaintiff and
members of the Class for their loss, says the complaint.
On April 12, 2022, the Court ruled that Tapinekiss' claims are
dismissed without prejudice for lack of subject-matter
jurisdiction.
The Plaintiff seeks a review of the claims dismissal.
The appellate case is captioned as Tapinekis v. Pace University,
Case No. 22-1058, in the United States Court of Appeals for the
Second Circuit, filed on May 11, 2022.[BN]
Plaintiff-Appellant Elizabeth Tapinekis, individually and on behalf
of others similarly situated, is represented by:
Blake G. Abbott, Esq.
ANASTOPOULO LAW FIRM
32 Ann Street, 3rd Floor
Charleston, SC 29403
Telephone: (843) 614-8888
Defendant-Appellee Pace University is represented by:
Jonathan B. Fellows, Esq.
BOND, SCHOENECK & KING, PLLC
1 Lincoln Center
110 West Fayette Street
Syracuse, NY 13202
Telephone: (315) 218-8120
PAPA MURPHY'S: Brown Granted Attys.' Fees, Expenses & Service Award
-------------------------------------------------------------------
Judge Benjamin H. Settle of the U.S. District Court for the Western
District of Washington, Tacoma, grants Lead Plaintiff Evan Brown's
motion for attorneys' fees and expenses and service award in the
lawsuit titled EVAN BROWN, Plaintiff v. PAPA MURPHY'S HOLDINGS
INCORPORATED, et al., Defendants, Case No. C19-5514 BHS (W.D.
Wash.).
I. Factual & Procedural Background
Mr. Brown, a former Papa Murphy's shareholder, initiated the
putative class action in June 2019. He alleged in his Second
Amended Complaint ("SAC") that Defendants Papa Murphy's Holdings,
Inc. and Weldon Spangler violated Sections 14(e) and 20(a) of the
Securities Exchange Act of 1934, 15 U.S.C. Sections 78n(e), 78t(a),
by making materially false and misleading statements contained in a
Recommendation Statement made in connection with a tender offer to
acquire shares of Papa Murphy's.
The Defendants moved to dismiss the SAC, and the Honorable J.
Richard Creatura, United States Magistrate Judge, issued a Report
and Recommendation ("R&R"), recommending that the Court deny the
Defendants' motion to dismiss. The Defendants objected, and on
April 22, 2021, the Court adopted the January R&R in full. The
Defendants argued in both their motion to dismiss and in their
objections to the January R&R that there is no private right of
action for Section 14(e) claims predicated on negligence. Both
Judge Creatura and the Court rejected that argument, declining to
disturb existing Ninth Circuit precedent.
The Defendants then filed a motion to certify the Court's April 22
Order for interlocutory appeal and to stay proceedings during
pendency of appeal. Judge Creatura issued a R&R, recommending that
the Court grant the motion and stay the proceedings pending
appellate review. Brown objected, and the Court adopted the R&R,
staying the case.
The Ninth Circuit granted the Defendants' 28 U.S.C. Section 1292(b)
petition for permission to appeal on Oct. 12, 2021. Brown asserts
that the parties reached a settlement less than an hour before the
Ninth Circuit's order. The Ninth Circuit remanded the case to this
Court, and Brown filed a motion for preliminary approval of
settlement on Dec. 1, 2021.
Pursuant to the Settlement, Papa Murphy's agreed to the Settlement
Amount of $2.4 million for the Settlement Class of former public
shareholders. Papa Murphy's Directors, and certain Supporting
Stockholders affiliated with them are excluded from the Settlement.
Assuming 100% of the 8,160,595 shares in the Settlement Class
submit a valid and timely Proof of Claim and Release, the average
distribution will be $0.29 per share owned.
The Court preliminarily approved the Settlement and preliminarily
certified the Settlement Class on Jan. 11, 2022. Notice was sent to
the Settlement Class Members in accordance with the approved notice
methods, and no objections were filed and only one Settlement Class
Member opted out. Brown accordingly moved for final approval of the
Settlement, and for attorneys' fees, expenses, and service award.
The Court held the final approval hearing on May 2, 2022, approved
the Settlement, certified the Settlement Class, and preliminarily
approved Brown's motion for fees, expenses, and awards. The Court
now issues its ruling on the motion for fees, expenses, and
awards.
II. Discussion
Mr. Brown's counsel seeks a fee award of one-third the Settlement
Amount -- $800,000 -- plus reimbursement of their litigation
expenses in the amount of $9.081.40. Brown additionally seeks an
award of $5,000 for his time and efforts in representing the
Settlement Class.
The requested attorneys' fees represent 33% of the settlement fund.
Brown argues that in securities class actions, awards typically
exceed the benchmark and that one-third the Settlement Amount is
fair and appropriate. He provides extensive authority in support of
his argument that securities class actions typically exceed the 25%
benchmark -- both through case law and his counsel's personal
experience. The Court agrees that 30% should be the benchmark
here.
The requested fee amount deviates slightly above the benchmark.
Brown argues that 33% is appropriate in part because the Settlement
Amount represents approximately 6.75-17.25% of the potential
recoverable damages at trial.
The Court believes that Brown's counsel has attained a very
favorable result for the Settlement Class and is deserving of a
percentage above the benchmark. In crosschecking the requested
percentage with the lodestar, the Court concludes that 31.5% is a
more reasonable and fairer fee amount. The adjusted lodestar
results in a 1.21 positive multiplier in awarding 31.5% of the
Settlement Amount; although the Court concludes that 33% is not an
appropriate award of attorneys' fees in cross-checking against the
lodestar, it believes this positive multiplier is fair and
reasonable given the excellent result attained. In consideration of
all the factors, the Court awards class counsel $756,000 in
attorneys' fees.
After reviewing records, the Court concludes the requested expenses
are reasonable and relevant to the litigation.
Finally, Mr. Brown seeks a service award for serving as class
representative pursuant to 15 U.S.C. Section 78u-4(a)(4). He seeks
$5,000 for the 40 hours dedicated to the action, which is
presumptively reasonable. Further, the Notice mailed to the
Settlement Class indicated that Brown would receive a $5,000 award,
and there have been no objections and only one opt out. The Court,
thus, concludes that the requested $5,000 service award is
reasonable and appropriate in the case.
III. Order
Therefore, the Court ordered that Lead Plaintiff Evan Brown's
motion for attorneys' fees and expenses and service award is
granted. The Court awards class counsel $756,000 in attorneys' fees
and $9,081.40 in expenses. The Court also awards Mr. Brown a $5,000
service award. These amounts shall be distributed subject to the
terms, conditions, and obligations of the Settlement Agreement.
A full-text copy of the Court's Order dated May 2, 2022, is
available at https://tinyurl.com/4hvfstwu from Leagle.com.
PLATINUM RESTAURANTS: Settlement Deal in Green Suit Wins Initial OK
-------------------------------------------------------------------
In the class action lawsuit captioned as LAUREN GREEN, ET AL., v.
PLATINUM RESTAURANTS MID-AMERICA LLC D/B/A EDDIE MERLOT'S
PRIME AGED BEEF AND SEAFOOD, Case No. 3:14-cv-00439-RGJ-RSE (W.D.
Ky.), the Court entered an order granting the Parties' joint motion
for preliminary approval of settlement agreement:
1. Class Members
On September 3, 2019, this Court certified, under Federal
Rule of Civil Procedure 23, the following class:
"all Servers, Cocktail Servers, and Bartenders employed by
the defendant in its Louisville restaurant since it opened
on January 6, 2011."
2. Class Representatives and Class Counsel
On September 3, 2019, this Court appointed Class
Representatives and the law firms of Wiggins, Childs,
Pantazis, Fisher, & Goldfarb, LLC and Adams Landenwich &
Walton, PLLC as Class Counsel.
3. Nullification.
This Order will be void and of no force or effect if the
Agreement is not finally approved by the Court or if the
Agreement, after being finally approved by the Court, is
invalidated on appeal or terminated pursuant to its own
terms.
4. Preliminary Approval
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.
5. Class Notice
The Notice and the Opt-Out Statement (collectively the
"Notice Materials") are approved. The Court orders 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 this Order.
6. Fairness Hearing
The Court shall conduct a Fairness Hearing regarding the
proposed settlement on August 4, 2022 at 10:00 a.m. (EDT)
at the U.S. Courthouse, 601 W. Broadway, Louisville, KY,
40202.
7. Order for Settlement Purposes
The findings and rulings in this Order are made for the
purposes of settlement only and may not be cited or
otherwise used to support the certification of any
contested class or subclass in this action or any other
action.
8. Stay
All proceedings in this 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.
9. Use of Agreement and Ancillary Items
Neither the Agreement (whether or not it is finally
approved), nor any ancillary documents, actions,
statements, or filings in furtherance of settlement
(including matters associated with the mediation) will be
admissible or offered into evidence in this action or any
other action with respect to any issue or dispute,
including but not limited to, for the purpose of
establishing or supporting any claims that were raised or
could have been raised in this action or are similar to
such claims.
10. Attorney's Fees and Awards.
The submissions of the Parties in support of the
settlement, including Plaintiff's Counsels' application
for Attorneys' Fees and Expenses and incentive awards,
shall 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 Plaintiff Lauren Green, et al. sued the Defendant Platinum
Restaurants seeking relief for alleged violations of Fair Labor
Standards Act (FLSA).
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.
Judge Stivers conditionally certified a FLSA opt-in class
consisting of all Servers, Cocktail Servers, and Bartenders that
worked at Eddie Merlot's within three years before the lawsuit was
filed.
A copy of the Court's order dated April 27, 2022 is available from
PacerMonitor.com at https://bit.ly/3Pfx8Sp at no extra charge.[CC]
PRESSED JUICERY: Judge Mueller Recuses Self From Brooks ADA Suit
----------------------------------------------------------------
Chief District Judge Kimberly J. Mueller of the U.S. District Court
for the Eastern District of California recuses herself from the
lawsuit captioned Valerie Brooks, et al., Plaintiffs v. Pressed
Juicery, Inc., et al., Defendants, Case No. 2:19-CV-01687-KJM-CKD
(E.D. Cal.).
Plaintiff Valerie Brooks alleges that Defendant Pressed Juicery,
Inc., violated the Americans with Disabilities Act, 42 U.S.C.
Section 12181 (ADA), and California's Unruh Civil Rights Act,
California Civil Code Section 51 (UCRA), by not maintaining its
website in a manner that allowed access to those with visual
disabilities.
In the fall of 2020, the Court granted the parties' joint motion
for preliminary approval of class action settlement and conditional
certification of settlement classes, as well as the parties'
proposed method for notifying the class.
At the February 2022 Final Fairness Hearing, Objector Timothy Elder
expressed concerns with the substance of the settlement, the method
used for notice, and the claim form requirements. The Court ordered
the parties to submit a revised notice and claim form for approval
no later than March 9, 2022; details of the parties' revised claims
process no later than March 17, 2022; and a motion for final
approval no later than April 29, 2022.
On April 29, 2022, the parties filed a motion for final approval.
Earlier that same day, five objectors represented by Mr. Elder
filed objections to the settlement and requested to appear before
the Court at the May 6, 2022 Final Fairness Hearing.
In the process of preparing for hearing, the Court learned that one
of the objectors is Bryan Bashin, CEO of the organization
LightHouse for the Blind and Visually Impaired. While it has been
some time since she has seen Mr. Bashin, Judge Mueller considers
him a friend and has some familiarity with his work for the
visually impaired; she cannot say with confidence that she could
evaluate his position in this matter completely neutrally and,
therefore, recuses herself from this action under 28 U.S.C. Section
455(a).
Accordingly, Judge Mueller directed the Clerk of the Court to
randomly reassign this case to another district judge for any and
all further proceedings that may be appropriate or required. All
dates set in the action before her are vacated. The Clerk of the
Court will make appropriate adjustment in the assignment of civil
cases to compensate for this reassignment.
A full-text copy of the Court's Order dated May 2, 2022, is
available at https://tinyurl.com/4b77x98u from Leagle.com.
QUALCOMM INC: 9th Cir. Affirms Dismissal of Class Action
--------------------------------------------------------
QUALCOMM Incorporated disclosed in its Form 10-Q Report for the
quarterly period ended March 27, 2022, filed with the Securities
and Exchange Commission on April 27, 2022, that the dismissal of a
class action suit was affirmed by the Ninth Circuit in February
2022.
On June 8, 2018 and June 26, 2018, securities class action
complaints were filed by purported stockholders in the United
States District Court for the Southern District of California
against the company and two of the current officers.
The complaints alleged, among other things, that the company
violated Sections 10(b) and 20(a) of the Securities Exchange Act of
1934, as amended, and Rule 10b-5 thereunder, by failing to disclose
that it had submitted a notice to the Committee on Foreign
Investment in the United States (CFIUS) in January 2018.
The complaints sought unspecified damages, interest, fees and
costs. On March 18, 2019, the plaintiffs filed a consolidated
complaint asserting the same basic theories of liability and
requesting the same basic relief. On May 10, 2019, the company
filed a motion to dismiss the consolidated complaint, and on March
10, 2020, the court granted the motion.
On May 11, 2020, the plaintiffs filed a second amended complaint,
and on October 8, 2020, the court granted the motion to dismiss the
case with prejudice. On November 7, 2020, the plaintiffs filed a
notice of appeal with the United States Court of Appeals for the
Ninth Circuit (Ninth Circuit), and a hearing on the appeal was held
on November 16, 2021. On February 8, 2022, the Ninth Circuit
affirmed the district court's dismissal of the case.
QUALCOMM Incorporated is into radio & TV broadcasting &
communications equipment based in California.
QUALCOMM INC: Faces Consumer Suits in UK, Canadian, Israeli Courts
------------------------------------------------------------------
QUALCOMM Incorporated disclosed in its Form 10-Q Report for the
quarterly period ended March 27, 2022, filed with the Securities
and Exchange Commission on April 27, 2022, that since November
2017, several other consumer class action complaints have been
filed against the company in Canada (in the Ontario Superior Court
of Justice, the Supreme Court of British Columbia and the Quebec
Superior Court), Israel (in the Haifa District Court) and the
United Kingdom (in the Competition Appeal Tribunal), each on behalf
of a putative class of purchasers of cellular phones and other
cellular devices, alleging violations of certain of those
countries' competition and consumer protection laws. The claims in
these complaints are similar to those in the U.S. consumer class
action complaints.
The complaints seek damages.
QUALCOMM Incorporated is into radio & TV broadcasting &
communications equipment based in California.
QUALCOMM INC: Faces Shareholder Suit in California Court
---------------------------------------------------------
QUALCOMM Incorporated disclosed in its Form 10-Q Report for the
quarterly period ended March 27, 2022, filed with the Securities
and Exchange Commission on April 27, 2022, that a class action was
filed against the company alleging violations of Sections 10(b) and
20(a) of the Securities Exchange Act of 1934.
On January 23, 2017 and January 26, 2017, securities class action
complaints were filed by purported stockholders in the United
States District Court for the Southern District of California
against the company and certain of its then current and former
officers and directors.
The complaints alleged, among other things, that the company
violated Sections 10(b) and 20(a) of the Securities Exchange Act of
1934, as amended, and Rule 10b-5 thereunder, by making false and
misleading statements and omissions of material fact in connection
with certain allegations that the company are or were engaged in
anticompetitive conduct.
The complaints sought unspecified damages, interest, fees and
costs. On May 4, 2017, the court consolidated the two actions. On
July 3, 2017, the plaintiffs filed a consolidated amended complaint
asserting the same basic theories of liability and requesting the
same basic relief.
On September 1, 2017, the company filed a motion to dismiss the
consolidated amended complaint, and on March 18, 2019, the court
denied the motion. On January 15, 2020, the company filed a motion
for judgment on the pleadings, which the court denied on February
3, 2022.
QUALCOMM Incorporated is into radio and TV broadcasting &
communications equipment based in California.
RANDALL MECHANICAL: Fixl Class Suit Seeks OT Wages Under FLSA
-------------------------------------------------------------
MARY FIXL, individually and on behalf of all those similarly
situated v. RANDALL MECHANICAL, INC., d.b.a. "RANDALL" and JEFFREY
S. CONDELLO, Case No. 6:22-cv-00901 (M.D. Fla., May 13, 2022) is a
action raising individual claims for unpaid overtime wages pursuant
to the Federal Fair Labor Standards Act and a Representative Action
pursuant to 29 U.S.C. section 216(b) seeking to represent a class
of employees denied unpaid overtime pursuant to the FLSA.
Ms. Fixl contends that while working for Randall, she was
compensated as an hourly employee. Ms. Fixl regularly commenced
work at 8 a.m. and she stayed working until 5 or 6 p.m., and
sometimes later. Her job duties included, but were not limited to
work order and invoice generation, data entry, and accounts
receivable processing. She was also tasked with preparing and
processing time sheets for hundreds of hourly employees within the
electrical and fire divisions at Randall. While preparing and
processing time sheets for all the hourly employees in the
electrical and fire divisions, she was required to implement
Randalll's time and compensation policies as directed by Mr.
Condello and Randall's Vice President, Joseph McGee.
Throughout her employment, there were numerous workweeks where she
worked more than 40 hours but she was not paid time-and-a-half for
each overtime hour worked. Randall denied proper overtime
compensation because it required that Ms. Fixl alter or edit her
timesheet so that it appeared as though she only worked 40 hours in
said workweek, even though she worked in excess of 40 hours, Ms.
Fixl asserts.
Randall operates a construction and contracting services company in
Apopka, Florida. Randall provides a variety of services including
electrical, fire protection, architectural, site work, and
engineering to its commercial clientele.[BN]
The Plaintiff is represented by:
N. Ryan LaBar, Esq.
Scott C. Adams, Esq.
LABAR & ADAMS, P.A.
2300 East Concord Street
Orlando, FL 32803
Telephone: (407) 835-8968
Facsimile: (407) 835-8969
E-mail:rlabar@labaradams.com
sadams@labaradams.com
RANGE RESOURCES-APPALACHIA: Chow Appeals Ruling in Frederick Suit
-----------------------------------------------------------------
Objector LEON C. CHOW filed an appeal from a court ruling entered
in the lawsuit entitled DONALD C. FREDERICK and LOUISE M.
FREDERICK, h/w, MICHAEL A. MAHLE and PAULA M. MAHLE, h/w, DONALD
PORTA, and all other persons similarly situated, Plaintiffs v.
RANGE RESOURCES-APPALACHIA, LLC, Defendant, Case No.
1:08-cv-288-SPB, in the United States District Court for the
Western District of Pennsylvania.
The Plaintiffs are the owners of royalty interests in natural gas
produced and sold by Range Resources. In their initial complaint,
Plaintiffs asserted claims for violation of the Pennsylvania
Guaranteed Minimum Royalty Act (GMRA) (Count I), Breach of Oil and
Gas Leases (Count II), Conversion (Count III), and Unjust
Enrichment (Count IV). The Plaintiffs also requested injunctive
relief and a declaration that the natural gas leases which provide
for their royalty interests be "automatically terminated" as a
result of the asserted violations. The Plaintiffs' primary
contention was that the GMRA precluded Range Resources from
deducting the costs of transporting, processing, and marketing
natural gas after it is captured from the gas well. The Plaintiffs
further contended that by so doing, their royalty payments fell
below the statutory minimum of 1/8 provided for in the GMRA.
As reported in the Class Action Reporter on March 17, 2022, the
District Court for the Western District of Pennsylvania denied the
Defendant's motion to strike the affidavit of Ryan J. Rupert, a
certified public accountant, minerals manager and evaluation
analyst.
The affidavit was submitted by certain objectors (whom the Court
will refer as the "Bigley Objectors") as an exhibit to their
post-hearing brief. The Bigley Objectors offer Mr. Rupert's
affidavit in support of their argument that the proposed
supplemental class settlement is inadequate, unfair, and
unreasonable as compared to Range Resource's potential liability
for underpaid royalties during the time period 2011 to 2018.
Objector LEON C. CHOW now seeks a review of the Court's Memorandum
Opinion dated March 31, 2022, granting the Plaintiffs' and
Defendant's Joint Motion for Approval of Supplemental Agreement and
Stipulation of Settlement; granting-in-part and denying-in-part
Class Counsel's Application for Supplemental Attorney Fees; and
denying "Bigley Objectors" Motion to Remove Class Counsel.
The appellate case is captioned as Donald Frederick, et al. v.
Range Resources Appalachia LLC, Case No. 22-1821, in the United
States Court of Appeals for the Third Circuit, filed on May 4,
2022.[BN]
Not Party-Appellant LEON C. CHOW is represented by:
Robert J. Burnett, Esq.
HOUSTON HARBAUGH
401 Liberty Avenue
22nd Floor, Three Gateway Center
Pittsburgh, PA 15222
Telephone: (412) 281-5060
Plaintiff-Appellee DONALD C. FREDERICK, LOUISE M. FREDERICK, PAULA
M. MAHLE, and DONALD PORTA, and all others similarly situated, are
represented by:
Joseph E. Altomare, Esq.
10451 Venticello Drive, N.W.
Albuquerque, NM 87114
Telephone: (814) 657-0350
Defendant-Appellee RANGE RESOURCES APPALACHIA LLC is represented
by:
Kevin C. Abbott, Esq.
812 Crossbow Court
McMurray, PA 15317
Telephone: (724) 941-2160
- and -
Daniel J. Sponseller, Esq.
K&L GATES
210 Sixth Avenue
Pittsburgh, PA 15222
Telephone: (412) 355-8650
- and -
Justin H. Werner, Esq.
REED SMITH
225 Fifth Avenue, Suite 1200
Pittsburgh, PA 15222
Telephone: (412) 288-3838
RELIANT PRO: Underpays Physical Therapy Assistants, Kendall Says
----------------------------------------------------------------
KRISTEN KENDALL, individually and on behalf of all others similarly
situated, Plaintiff v. RELIANT PRO REHAB LLC, d/b/a RELIANT REHAB,
Defendant, Case No. 1:22-cv-02787 (D.N.J., May 12, 2022) is a class
action against the Defendant for its failure to compensate the
Plaintiff and similarly situated physical therapy assistants
overtime pay for all hours worked in excess of 40 hours in a
workweek in violation of the Fair Labor Standards Act and the New
Jersey Wage and Hour Law.
The Plaintiff worked for the Defendant as a physical therapy
assistant in New Jersey from approximately February 2020 until
December 2021.
Reliant Pro Rehab LLC, doing business as Reliant Rehab, is an
operator of long-term health care and nursing home facilities, with
its principal place of business located at 5800 Granite Parkway,
Suite 1000, Plano, Texas. [BN]
The Plaintiff is represented by:
Michael J. Palitz, Esq.
SHAVITZ LAW GROUP, P.A.
477 Madison Avenue, 6th Floor
New York, NY 10022
Telephone: (800) 616-4000
Facsimile: (561) 447-8831
E-mail: mpalitz@shavitzlaw.com
- and –
Mitchell L. Feldman, Esq.
FELDMAN LEGAL GROUP
6916 West Linebaugh Avenue, Suite 101
Tampa, FL 33625
Telephone: (813) 639-9366
Facsimile: (813) 639-9376
E-mail: Mfeldman@flandgatrialattorneys.com
- and –
Gregg I. Shavitz, Esq.
SHAVITZ LAW GROUP, P.A.
951 Yamato Road, Suite 285
Boca Raton, FL 33431
Telephone: (561) 447-8888
Facsimile: (561) 447-8831
E-mail: gshavitz@shavitzlaw.com
RYDER SYSTEM: Faces Key West Securities Suit in Florida Court
-------------------------------------------------------------
Ryder System, Inc. disclosed in its Form 10-Q Report for the
quarterly period ended March 31, 2022, filed with the Securities
and Exchange Commission on April 27, 2022, that it is facing a
putative class action filed in May 20, 2020, on behalf of
purchasers of the company's securities who purchased or otherwise
acquired their securities between July 23, 2015 and February 13,
2020, inclusive, was commenced against Ryder and certain of its
current and former officers in the U.S. District Court for the
Southern District of Florida, captioned "Key West Policy & Fire
Pension Fund v. Ryder System, Inc., et al."
The complaint alleges, among other things, that the defendants
misrepresented Ryder's depreciation policy and residual value
estimates for its vehicles during the Class Period in violation of
Section 10(b) and 20(a) of the Securities Exchange Act of 1934 and
Rule 10b-5 promulgated thereunder, and seeks to recover, among
other things, unspecified compensatory damages and attorneys' fees
and costs.
On August 3, 2020, the State of Alaska, Alaska Permanent Fund, the
City of Fort Lauderdale General Employees' Retirement System, and
the City of Plantation Police Officers Pension Fund were appointed
lead plaintiffs. On October 5, 2020, the lead plaintiffs filed an
amended complaint. On December 4, 2020, Ryder and the other named
defendants in the case filed a Motion to Dismiss the amended
complaint. On April 7, 2021, the court held a hearing on
defendants' Motion to Dismiss, and reserved decision.
Ryder System, Inc. provides auto rental & leasing services based in
Florida.
SAAS LLC: Violates Wage & Hour Laws, Lucero Class Suit Alleges
--------------------------------------------------------------
BEATRIZ LUCERO, individually and on behalf of all others similarly
situated v. SAAS LLC d/b/a PRESTIGE FINE DRY CLEANERS and ANDRES
DEVIA, as an individual, Case No. 1:22-cv-02801 (E.D.N.Y., May 13,
2022) seeks to recover damages for the Defendants' egregious
violations of state and federal wage and hour laws arising out of
the Plaintiff's employment with the Defendants.
As a result of the alleged violations of Federal and New York State
labor laws, the Plaintiff seeks compensatory damages and liquidated
damages in an amount exceeding $100,000.00. The Plaintiff also
seeks interest, attorneys’ fees, costs, and all other legal and
equitable remedies this Court deems appropriate.
As a manual worker, Defendants were required to Plaintiff every
seven days and failed to do so. Further, the Plaintiff was not
compensated at all for her last two months of employment by the
Defendants. The Defendants willfully failed to post notices of the
minimum wage and overtime wage requirements in a conspicuous place
at the location of their employment as required by both the New
York Labor Law (NYLL) and the Fair Labor Standards Act (FLSA).
The Plaintiff brings this action on behalf of themselves, and other
employees similarly situated as authorized under the Fair Labor
Standards Act (FLSA). The employees similarly situated are
Collective Class:
"All persons who are or have been employed by the Defendants as
customer service employees, folders, cleaners or any
other similarly titled personnel with substantially similar job
requirements and pay provisions, who were performing the same
sort of functions for Defendants, other than the executive and
management positions, who have been subject to Defendants’
common practices, policies, programs, procedures, protocols and
plans including willfully failing and refusing to pay required
overtime wages."[BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Telephone: (718) 263-9591
SAMSUNG ELECTRONICS: Faces Jordan Suit Over Defective Refrigerators
-------------------------------------------------------------------
MATTHEW JORDAN and LISA SAGHY, individually and on behalf of all
those similarly situated v. SAMSUNG ELECTRONICS AMERICA, INC., and
SAMSUNG ELECTRONICS CO., LTD., Case No. 2:22-cv-02828-MCA-AM
(D.N.J., May 13, 2022) alleges that Samsung designs, manufactures,
markets, advertises, sells, warrants, and services refrigerators
that pose unreasonable risks of property damage and serious
personal injury during normal use.
The Refrigerators span several model numbers, but they all share a
common design: double French doors with a bottom freezer. The
Refrigerators are defective because they run above the temperature
at which food can be safely stored. This defect is fatal to the
operation of the Refrigerators, which serve one purpose: keeping
food and other consumable goods at a safe temperature, the suit
says.
Samsung Electronics is a South Korean multinational corporation in
Seoul, South Korea. SEC designs, manufactures, and distributes
Refrigerators for sale in this jurisdiction the Refrigerators. SEC
also regularly monitors its wholly owned subsidiaries’ financial
risk arising from operating activities and regularly dispatches
financial risk managers to its regional headquarters in the United
States.[BN]
The Plaintiffs are represented by:
James E. Cecchi, Esq.
Lindsey H. Taylor, Esq.
Donald A. Ecklund, Esq.
CARELLA, BYRNE, CECCHI,
OLSTEIN, BRODY & AGNELLO, P.C.
5 Becker Farm Road
Roseland, NJ 07068
Telephone: (973)994-1700
- and -
Jonathan D. Selbin, Esq.
Jason L. Lichtman, Esq.
LIEFF CABRASER HEIMANN
& BERNSTEIN, LLP
250 Hudson Street, 8th fl.
New York, NY 10013-1413
Telephone: (212) 355-9500
SANMEDICA INT'L: Court Modifies Scheduling Order in Pizana Suit
---------------------------------------------------------------
In the class action lawsuit captioned as RAUL PIZANA v. SANMEDICA
INTERNATIONAL LLC, Case No. 1:18-cv-00644-DAD-SKO (E.D. Cal.), the
Hon. Judge entered an order granting plaintiff's motion to modify
the scheduling order and for leave to file a third amended
complaint.
The Plaintiff filed this 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 defendant's motion to dismiss, except
with regard to one of plaintiff’s claims that was dismissed with
leave to amend.
On November 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); (2) the California False Advertising Law
(FAL); and (3) the 14 Unfair Competition Law (UCL).
On December 13, 2019, 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.
A copy of the Court's order dated April 27, 2022 is available from
PacerMonitor.com at https://bit.ly/3wsNHRX at no extra charge.[CC]
SEZZLE INC: Sliwa Sues Over Deceptive Buy Now, Pay Later Service
----------------------------------------------------------------
MICHAEL SLIWA, individually, and on behalf of all others similarly
situated, Plaintiff v. SEZZLE INC., Defendant, Case No.
2:22-cv-03055 (C.D. Cal., May 6, 2022) is brought as a class action
on behalf of Plaintiff, the general public, and thousands of
similarly situated Sezzle customers who have been deceived and will
be deceived into using Sezzle's buy now, pay later service by the
company's misrepresentations and omissions in marketing materials,
regarding the true operation and risks of the service in violation
of the California's Unfair Competition Law, the California's False
Advertising Law, and the Minnesota's Consumer Fraud Act.
According to the complaint, the risks of the service include the
real and repeated risk of multiple insufficient funds fees or
overdraft fees imposed by users' banks as a result of automated
Sezzle transfers from consumers' checking accounts.
Allegedly, Sezzle purports to offer a solution to cash-strapped
consumers: Sezzle prominently markets Sezzle as a service that
allows users to pay for purchases at a later date, with "no
interest." And while Sezzle's marketing representations warn that
Sezzle may charge users fees when there are insufficient funds for
a payment, they never warn users of the even more damaging outcome:
repeated bank fees from users' own banks for using the Sezzle
service. These representations and omissions are deceptive, the
suit added.
The Plaintiff seeks actual damages, punitive damages, restitution,
and an injunction on behalf of the general public to prevent Sezzle
from continuing to engage in its illegal practices.
Sezzle is a publicly traded financial technology company
headquartered in Minneapolis, operating in the United States and
Canada. The company provides an alternative payment platform
offering interest-free installment plans at selected online
stores.[BN]
The Plaintiff is represented by:
Scott Edelsberg, Esq.
EDELSBERG LAW, P.A.
1925 Century Park East, Suite 1700
Los Angeles, CA 90067
Telephone: (305) 975-3320
E-mail: scott@edelsberglaw.com
- and -
Jeffrey D. Kaliel, Esq.
KALIELGOLD PLLC
1100 15th Street NW, 4th Floor
Washington, DC 20005
Telephone: (202) 350-4783
E-mail: jkaliel@kalielpllc.com
- and -
Sophia G. Gold, Esq.
KALIELGOLD PLLC
950 Gilman Street, Suite 200
Berkeley, CA 94710
Telephone: (202) 350-4783
E-mail: sgold@kalielgold.com
SIGNATURE CLEANING: Violates FLSA, NYLL, Ramales Suit Alleges
-------------------------------------------------------------
ALEJANDRA RAMALES, LAURA RODRIGUEZ, JACINTA ANDRADE, JEFFERSON
RIVANDENEIRA, IRENE ROSADO, ELSA SIMBANA, PEDRO DE LA CRUZ, SILVIA
ALVAREZ, NESTOR R. NUNEZ, HECTOR V. MORALES, WENDI H. ORTIZ, LEMUEL
MORALES, LETICIA VALDEZ, DANIEL LARA, MARCELO SORIA, MARIA CARMEN
BARRERA FIGUEROA, DARQUEA, YALILA TIGUAROJAS, JUANA PAULINO, ROSA
FERNANDEZ, VICTOR, KARINA GARCIA, JORGE TIGUA and NELSON J.
HERNANDEZ on behalf of themselves and all others similarly situated
v. SIGNATURE CLEANING SERVICES, INC., AMERICAN MAINTENANCE 3
JANITORIAL SERVICES AND SUPPLIES CO. CORP., and ANDREW WEISBACH,
Case No. 1:22-cv-02863 (E.D.N.Y., May 16, 2022) is a class action
suit for the Defendants' alleged systemic and continuous violations
of:
(i) the overtime provisions of the Fair Labor Standards Act
("FLSA"), 29 U.S.C. section 207(a);
(ii) the overtime provisions of the New York Labor Law
("NYLL");
(iii) the NYLL's requirement that employers furnish employees
with prompt payment for all wages owed, NYLL § 663(1);
(iv) the Spread-of-Hours Requirement under New York Law, 12
NYCRR section 142-2.4;
(v) the NYLL's requirement that employers furnish employees
with a wage notice at hire containing specific categories
of accurate information, NYLL section 195(1), as codified
in the New York Wage Theft Prevention Act ("WTPA"); and
(vi) the NYLL's requirement that employers furnish employees
with wage statements containing specific categories of
accurate information on each payday, NYLL section 195(3).
Additionally, the Plaintiffs Alejandra Ramales, Hector V. Morales,
Wendi H. Ortiz, Leticia Valdez, Irene Rosado, Juana Paulino, Rosa
Fernandez, Lemuel Morales, Daniel Lara and Nelson J. Hernandez
bring individual claims for Defendants' discrimination and/or
retaliation, including violations of: (i) the Family and Medical
Leave Act of 1993 ("FMLA"); (ii) the anti-retaliation provision of
the FLSA 29 U.S.C. section 215(a)(3); (iii) the anti-retaliation
provisions of NYLL section 215(1); and (iv) the anti-discrimination
and anti-retaliation provisions of the New York State Human Rights
Law ("NYSHRL") Exec. L. section 296 et. seq., and Title 8 of the
Administrative Code of the City of New York, also known as the New
York City Human Rights Law ("NYCHRL").
The Defendants are a single enterprise comprising of Defendant
Signature, which is an actual commercial cleaning company that
offers businesses a wide array of cleaning services, and the
Defendant American, which is a sham corporation created to hide the
ownership and involvement of the Defendants' principal, Defendant
Weisbach, in Defendant American's business dealings.
The Defendants hired the Plaintiffs as maintenance workers to
service their customers' accounts and because they are a good fit
for Defendants' workforce. That is, Plaintiffs are immigrants from
Latin America, and most do not speak English as their first
language. Their lack of proficiency in the English language made it
ideal for Defendants' unlawful compensation practices to remain
undetected. Indeed, despite recently settling a class action
lawsuit for unpaid wages for $975,000.00, and despite having been
sued at least three times within the last four years for wage
violations, Defendants have continued to violate Plaintiffs' and
other employees' rights to lawful compensation, resulting in this
action.
Signature Cleaning offers a range of routine and specialized
cleaning services for small, medium, and large business.[BN]
The Plaintiffs are represented by:
Jon L. Norinsberg, Esq.
Bennitta L. Joseph, Esq.
Michael R. Minkoff, Esq.
Diego O. Barros, Esq.
JOSEPH & NORINSBERG, LLC
110 East 59th Street, Suite 3200
New York, NY 10022
Telephone: (212) 227-5700
Facsimile: (212) 656-1889
E-mail: jon@norinsberglaw.com
bennitta@employeejustice.com
michael@employeejustice.com
diego@norinsberglaw.com
SOUTH CAROLINA: Kerr Files Certiorari Petition in Edwards Suit
--------------------------------------------------------------
Defendant ROBERT M. KERR, in his official capacity as Director,
South Carolina Department of Health and Human Services, filed with
the Supreme Court of United States a petition for a writ of
certiorari in the matter styled ROBERT M. KERR, in his official
capacity as Director, South Carolina Department of Health and Human
Services, Petitioner v. JULIE EDWARDS, on her behalf and on behalf
of all others similarly situated, et al., Respondents, Case No.
21-1431.
Response is due on June 10, 2022.
Mr. Kerr petitions for a writ of certiorari to review the judgment
of the United States Court of Appeals for the Fourth Circuit in the
case titled PLANNED PARENTHOOD SOUTH ATLANTIC; JULIE EDWARDS, on
her behalf and on behalf of all others similarly situated,
Plaintiffs-Appellees v. ROBERT M. KERR, in his official capacity as
Director, South Carolina Department of Health and Human Services,
Defendant-Appellant, Case No. 21-1043.
The questions presented are: 1. Whether Spending Clause statutes
ever give rise to privately enforceable rights under Section 1983,
and if so, what is the proper framework for deciding when they do?
2. Whether, assuming Spending Clause statutes ever give rise to
privately enforceable rights under Section 1983, the Medicaid Act's
any-qualified-provider provision creates a privately enforceable
right to challenge a state's determination that a provider is not
qualified to provide certain medical services.
The case arises out of South Carolina's termination of Planned
Parenthood South Atlantic’s Medicaid provider agreement, an
action that South Carolina took because Planned Parenthood offers
abortion services. But this case is not about abortion. It is about
Congress' desire that Medicaid recipients have their choice of
qualified Medicaid providers. South Carolina terminated Planned
Parenthood's agreement notwithstanding the fact that all parties
agree that Planned Parenthood is perfectly competent to provide the
non-abortive healthcare the individual plaintiff sought and
requested. To allow the State to disqualify Planned Parenthood
would nullify Congress' manifest intent to provide our less
fortunate citizens the opportunity to select a medical provider of
their choice, an opportunity that the most fortunate routinely
enjoy. At the outset of this litigation, the district court issued
a preliminary injunction preventing South Carolina from terminating
Planned Parenthood's provider agreement. The Court of Appeals
affirmed its decision then. South Carolina returned to the Court of
Appeals seeking a review of the district court's subsequent
permanent injunction. The Court of Appeals again affirmed the
district court's judgment.
This petition asks the Court to resolve the questions raised in
Health and Hospital Corp. of Marion County v. Talevski, Case No.
21-806 alongside a mature circuit "conflict on a federal question
with significant implications: whether Medicaid recipients have a
private right of action to challenge a State's determination of
'qualified' Medicaid providers."[BN]
Defendant-Petitioner ROBERT M. KERR, in his official capacity as
Director, South Carolina Department of Health and Human Services,
is represented by:
John J. Bursch, Esq.
Kristen K. Waggoner, Esq.
Erin M. Hawley, Esq.
Christopher P. Schandevel, Esq.
ALLIANCE DEFENDING FREEDOM
440 First Street NW Suite 600
Washington, DC 20001
Telephone: (616) 450-4235
E-mail: jbursch@ADFlegal.org
- and -
Kelly M. Jolley, Esq.
Ariail B. Kirk, Esq.
JOLLEY LAW GROUP, LLC
810 Bellwood Road
Columbia, SC 29205
Telephone: (803) 809-6500
SPEEDUP 3: Lunsford Suit Seeks Unpaid Overtime Wages Under FLSA
---------------------------------------------------------------
SAMANTHA LUNSFORD, on behalf of herself and others similarly
situated v. SPEEDUP 3 LLC and LAKHBIR SINGH, individually, Case No.
5:22-cv-00122-GFVT (E.D. Ky., May 13, 2022) seeks to recover unpaid
overtime compensation, liquidated damages, declaratory relief and
other relief under the Fair Labor Standards Act.
The Defendants employed Plaintiff from on or about July 25, 2021
until October 8, 2021. The Plaintiff is an individual residing in
Georgetown, Kentucky. The Plaintiff worked for Defendants' at their
Georgetown location located at 208 N. Broadway, Georgetown,
Kentucky.
The Defendants allegedly violate the FLSA and Kentucky by failing
to pay Plaintiff time and one half for all of her hours worked over
40 each week.
Speedup is a gas station and food mart. The Defendant Singh
oversees the day-to-day operations of the business.[BN]
The Plaintiff is represented by:
J. Corey Asay, Esq.
MORGAN & MORGAN, P.A.
333 W. Vine St., Suite 1200
Lexington, KY 40507
Telephone: (859) 286-8368
Facsimile: (859) 286-8384
E-mail: CAsay@forthepeople.com
STACY GARRITY: Dillow Files Suit in E.D. Pennsylvania
-----------------------------------------------------
A class action lawsuit has been filed against Stacy Garrity. The
case is styled as Brian Dillow, individually and on behalf of all
others similarly situated v. Stacy L. Garrity, in her official
capacity as the treasurer of the commonwealth of Pennsylvania, Case
No. 2:22-cv-01852-RBS (E.D. Pa., May 12, 2022).
The nature of suit is stated as Other Civil Rights for the Civil
Rights Act.
Stacy L. Garrity is an American politician, businesswoman, and
soldier. She is currently serving as Pennsylvania Treasurer as a
Republican, a position to which she was elected in 2020.[BN]
The Plaintiff is represented by:
Michael C. Wagner, Esq.
SMITH KATZENSTEIN & JENKINS LLP
1000 N. West Street, Suite 1501
P.O. Box 410
Wilmington, DE 19899
Phone: (302) 652-8400
STATE FARM LIFE: Botte Sues Over Mismanagement of Insurance Plans
-----------------------------------------------------------------
KIM BOTTE, individually and on behalf of all others similarly
situated, Plaintiff v. STATE FARM LIFE INSURANCE COMPANY,
Defendant, Case No. 2:22-cv-02842 (E.D.N.Y., May 16, 2022) to
recover amounts that the Defendant has charged and collected from
the Plaintiff and members of a class of life insurance policy
owners in excess of amounts authorized by the express terms of
their policies.
According to the complaint, the terms of the Plaintiff's life
insurance policy provide for an "Account Value" consisting of money
held in trust by the Defendant for the Plaintiff. Over the course
of several years, the Defendant has deducted excess money from the
Plaintiff's Account Value in breach of her policy's terms.
The Defendant is contractually bound to deduct only those charges
that are explicitly identified and authorized by the terms of its
life insurance policies. Despite the unambiguous language of the
policy, which is a fully integrated agreement, the Defendant
deducts charges from the Account Values of Plaintiff and the
proposed class in excess of amounts specifically permitted by their
policies, says the suit.
STATE FARM LIFE INSURANCE COMPANY operates as an insurance company.
The Company offers life insurance products, as well as insures
cars, boats, motorcycles, homes, and businesses. [BN]
The Plaintiff is represented by:
Joshua D. Arisohn, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Telephone: (646) 837-7150
Facsimile: (212) 989-9163
Email: jarisohn@bursor.com
- and -
Joel D. Smith, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Facsimile: (925) 407-2700
Email: jsmith@bursor.com
STATE STREET CORP: Faces ERISA Suit by Retirement Plan Customers
----------------------------------------------------------------
State Street Corporation disclosed in its Form 10-Q Report for the
quarterly period ended March 31, 2022, filed with the Securities
and Exchange Commission on April 27, 2022, that in March 2017, a
purported class action was commenced against the company alleging
that its invoicing practices violated duties owed to retirement
plan customers under the Employee Retirement Income Security Act
(ERISA).
State Street Corporation is a financial holding company based in
Massachusetts.
STATE STREET CORP: Faces Gomes ERISA Suit
-----------------------------------------
State Street Corporation disclosed in its Form 10-Q Report for the
quarterly period ended March 31, 2022, filed with the Securities
and Exchange Commission on April 27, 2022, that eight participants
in the company's Salary Savings Program filed a purported class
action complaint (Gomes, et al. v. State Street Corp.) in May 2021
on behalf of participants and beneficiaries who participated in the
Program and invested in its proprietary investment fund options
between May 2015 and the present.
The complaint names the Plan Sponsor as well as the committees
overseeing the Plan and their respective members as defendants, and
alleges breach of fiduciary duty and violations of other duties
owed to retirement plan participants under the Employee Retirement
Income and Security Act (ERISA).
State Street Corporation is a financial holding company based in
Massachusetts.
SUNLANDS TECHNOLOGY: Faces Shareholder Suit in NY Court
-------------------------------------------------------
Sunlands Technology Group disclosed in its Form 20-F Report for the
fiscal year ended December 31, 2021, filed with the Securities and
Exchange Commission on April 27, 2022, that in June 2019, the
company, and certain of its current and former directors and
officers and its underwriters in the initial public offering were
named as defendants in a securities class action filed in the U.S.
District Court for the Eastern District of New York.
Amended complaints in this class action were filed in November
2019. The action, purportedly brought on behalf of a class of
persons who allegedly suffered damages as a result of their trading
in the ADSs, alleges that the Company's registration statement on
Form F-1 in connection with the March 2018 initial public offering
contains materially false and misleading statements and omissions
in violation of the U.S. federal securities laws.
The company filed a motion to dismiss the action in March 2020,
which was denied by an order dated March 31, 2021. In July 2021,
the Company filed a motion for judgment on the pleadings, which was
fully briefed. Discovery has been stayed pending resolution of the
motion for judgment on the pleadings.
Sunlands Technology Group is an online post-secondary and
professional education based in China.
TEMPLE PLAZA: Fails to Pay Proper Wages, Brandt Suit Alleges
------------------------------------------------------------
LISA BRANDT, individually and on behalf of all others similarly
situated, Plaintiff v. TEMPLE PLAZA HOTEL, INC.; and FAMOUS DOOR
II, INC., Defendants, Case No. 2:22-cv-11028 (E.D. Mich., May 13,
2022) seeks to recover from the Defendants unpaid wages and
overtime compensation, interest, liquidated damages, attorneys'
fees, and costs under the Fair Labor Standards Act.
Plaintiff Brandt was employed by the Defendants as a dancer.
Temple Hotels Inc invests directly or indirectly, in the ownership
and operation of hotel properties, businesses and assets. [BN]
The Plaintiff is represented by:
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Pkwy, Suite 510
Little Rock, AK 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
Email: josh@sanfordlawfirm.com
TENNESSEE: Dismissal of McPeters' Claims v. Thomas' Bosses Upheld
-----------------------------------------------------------------
In the case, APRIL DIANE McPETERS, individually and on behalf of
all others similarly situated, Plaintiff-Appellant v. TONY PARKER,
Commissioner of the Tennessee Department of Correction, et al.,
Defendants-Appellees, Case No. 21-5401 (6th Cir.), the U.S. Court
of Appeals for the Sixth Circuit affirmed the district court's
dismissal with respect to McPeters' claims for injunctive relief,
class certification, and supervisory liability based on retaliation
and failure to train against Bryant Lamont Thomas' supervisors.
In 2017, while she was on probation with the State of Tennessee,
McPeters was sexually assaulted in her home by a probation officer.
McPeters alleges that after she reported the incident to two
unidentified male Tennessee Department of Correction ("TDOC")
officers, she was subjected to "increasingly strict supervision"
and a "surprise" home visit seven months later, which led to
revocation of her probation and her being sent to jail. She also
alleges that her request to be assigned a female probation officer
was denied, that her assailant "assaulted multiple other
probationers," and that female probationers across Tennessee have
made "multiple complaints" of sexual harassment and assault by male
probation officers.
The assailant, Thomas, was fired for an unrelated incident.
Although there was never a formal TDOC report or investigation into
his misconduct towards McPeters, Thomas later pleaded guilty to
sexual contact with a probationer and was sentenced to two years of
supervised probation.
Ms. McPeters filed suit under 42 U.S.C. Section 1983 against Thomas
and his supervisors, alleging that her constitutional rights had
been violated. Thomas' supervisors were Tony C. Parker, the TDOC
Commissioner; Alisha Shoates James, the Assistant Commissioner for
Community Supervision; David Lane, the Correctional Administrator
for the East Division of Probation; Paul C. Gore, a supervisor
within the Division of Probation and Parole; and Wade A. Adcock,
another supervisor within the Division of Probation and Parole.
McPeters recovered against Thomas, but the district court dismissed
her claims against Thomas' supervisors under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6).
In her complaint, McPeters brings supervisory liability claims
against Thomas' supervisors based on their alleged retaliation,
failure to train, failure to establish policies to prevent sexual
assault, and failure to provide medical care. She also seeks
injunctive relief and class-action certification on behalf of
similarly situated female probationers or parolees under TDOC
supervision.
In dismissing those claims, the district court found, among other
things, that (1) it lacked jurisdiction over McPeters' claim for
injunctive relief and for class-action certification because she
did not sufficiently allege a likelihood that she would suffer
future harm and, therefore, she lacked standing; and (2) McPeters
failed to state an individual-capacity claim against Thomas'
supervisors because the complaint was devoid of specific
allegations of any acts or omissions by any of the supervisors that
would show retaliation or their active participation in -- or
knowledge of or deliberate indifference to -- Thomas' conduct, and
because the supervisors were, alternatively, entitled to qualified
immunity.
Ms. McPeters appeals the district court's dismissal with respect to
her claims for injunctive relief, class certification, and
supervisory liability based on retaliation and failure to train.
She argues that her allegations were sufficient to state claims for
relief on her cause of action.
Having carefully considered the record on appeal, the briefs of the
parties, and the applicable law, the Sixth Circuit finds that the
district court did not err in its conclusions. Because the district
court's opinion carefully and correctly sets out the law governing
the issues raised, and clearly articulates the reasons underlying
its decision, issuance of a full written opinion by the Sixth
Circuit would serve no useful purpose and would be duplicative.
Accordingly, for the reasons stated in the district court's opinion
as to the issues on appeal, the Sixth Circuit affirmed.
A full-text copy of the Court's May 6, 2022 Order is available at
https://tinyurl.com/2p8cmyyf from Leagle.com.
TERREN PEIZER: Faces Aptor Shareholder Suit in California Court
---------------------------------------------------------------
Ontrak, Inc. disclosed in its Form 10-Q Report for the quarterly
period ended March 31, 2022, filed with the Securities and Exchange
Commission on May 11, 2022, that in August 6, 2021, a purported
stockholder derivative complaint was filed in the United States
District Court for the Central District of California against the
Company's Executive Chairman and largest stockholder, Terren S.
Peizer, entitled "Aptor v. Peizer," Case No. 2:21-cv-06371,
alleging breach of fiduciary duty on behalf of the company against
board members Terren S. Peizer, Brandon H. LaVerne, Richard A.
Berman, Michael Sherman, Diane Seloff, Robert Rebak, Gustavo
Giraldo and Katherine Quinn, and contribution against Terren S.
Peizer and Brandon H. LaVerne.
Ontrak, Inc. is an AI-powered and telehealth-enabled, virtualized
healthcare company with a technology-enabled platform that provides
claim based analytics and predictive modeling to provide analytic
insights throughout the delivery of personalized treatment
programs.
TERREN PEIZER: Faces Vega Shareholder Suit in California Court
--------------------------------------------------------------
Ontrak, Inc. disclosed in its Form 10-Q Report for the quarterly
period ended March 31, 2022, filed with the Securities and Exchange
Commission on May 11, 2022, that in December 1, 2021, a shareholder
derivative action was filed in the United States District Court for
the District of Delaware against the company's Executive Chairman
and largest stockholder, Terren S. Peizer, entitled "Vega v.
Peizer," Case No. 1:21-cv-01701, for violation of Section 20(a) of
the Exchange Act, breach of fiduciary duty, unjust enrichment and
waste of corporate assets against Terren S. Peizer, Brandon H.
LaVerne, Curtis Medeiros, Richard A. Berman, Michael Sherman,
Edward Zecchini, Diane Seloff, Robert Rebak, Gustavo Giraldo, and
Katherine Quinn.
Plaintiffs allege that the defendants breached their fiduciary
duties by allowing or causing the company to violate the federal
securities laws as alleged in a consolidated class action. The
plaintiffs seek damages (and contribution from the officers) in an
indeterminate amount.
In December 7, 2021, the court in the Central District of
California consolidated two Central District of California actions,
stayed the action pending a ruling on the Motion to Dismiss in the
consolidated class action and ordered plaintiffs to file a
consolidated amended complaint within fourteen (14) days of a
ruling on the Motion to Dismiss in the Consolidated Class Action.
In February 7, 2022, the Court in the District of Delaware extended
the deadline for defendants to respond to the complaint in the Vega
action to April 8, 2022. In March 21, 2022 the court in the
District of Delaware granted plaintiff's unopposed motion to
transfer the case to the United States District Court for Central
District of California in the interest of judicial efficiency due
to the consolidated class action and derivative action are already
pending in that district, and that same day the case was
transferred into the United States District Court for Central
District of California and given the new Case No.
2:22-cv-01873-CAS-AS.
In April 11, 2022, the court stayed the action pending a ruling on
the Motion to Dismiss in the Consolidated Class Action and ordered
plaintiffs to inform defendants regarding their intention to amend
their initial complaint within thirty (30) days of said ruling.
Ontrak, Inc. is an AI-powered and telehealth-enabled, virtualized
healthcare company with a technology-enabled platform that provides
claim based analytics and predictive modeling to provide analytic
insights throughout the delivery of personalized treatment
programs.
TRANSUNION DATA: Szewczyk Sues Over Incorrect Consumer Reports
--------------------------------------------------------------
JUSTIN SZEWCZYK, individually and on behalf of all others similarly
situated, Plaintiff v. TRANSUNION DATA SOLUTIONS LLC and DOES 1-10
inclusive, Defendant, Case No. 1:22-cv-02526 (N.D. Ill., May 12,
2022) is a class action against the Defendant for violation of the
Fair Credit Reporting Act.
The case arises from the Defendant's alleged failure to use
reasonable procedures to ensure the maximum possible accuracy of
the consumer reports that it furnished for its clients. The
Defendant incorrectly disclosed that the Plaintiff belongs to the
National Sex Offender Registry and the Colorado Sex Offender
Registry due to its failure to verify public records. As a result
of the Defendant's misconduct, the Plaintiff's housing application
was denied, says the suit.
Transunion Data Solutions LLC is a tenant screening company
headquartered in Illinois. [BN]
The Plaintiff is represented by:
Devin Fok, Esq.
Ainat Kiewe, Esq.
DHF LAW, PC
2304 Huntington Drive, Suite 210
San Marino, CA 91801
Telephone: (888) 651-6411
Facsimile: (818) 484-2023
E-mail: devin@devinfoklaw.com
ainat@devinfoklaw.com
- and –
John Kunze, Esq.
FISH POTTER BOLANOS, P.C.
200 East 5th Avenue, Suite 123
Naperville, IL 60563
Telephone: (630) 355-7590
E-mail: docketing@fishlawfirm.com
TREVENA INC: Settles Consolidated Securities Suits
--------------------------------------------------
Trevena, Inc. disclosed in its Form 10-Q Report for the period
ended March 31, 2022, filed with the Securities and Exchange
Commission on May 11, 2022, that in August 2, 2021 the parties
agreed to a court-approved settlement of a consolidated securities
lawsuit.
In December 2018, a shareholder derivative action was filed on
behalf of the company and against certain current and former
officers and directors in the U.S. District Court for the Eastern
District of Pennsylvania, and in February 2019, two additional,
similar shareholder derivative actions were filed in the U.S.
District Court for the District of Delaware. A fourth similar
shareholder derivative action was filed in the Eastern District of
Pennsylvania in September 2019, and a fifth, similar derivative
action was filed in the Eastern District of Pennsylvania in
November 2019. A similar sixth derivative action was filed in the
same court in September 2020.
These cases involved facts similar to the consolidated securities
lawsuits. The parties agreed to a settlement, which was approved by
the court on August 2, 2021.
Trevena, Inc. is a biopharmaceutical company focused on the
development and commercialization of novel medicines for patients
affected by central nervous system disorders. The company operates
in one segment and has its principal office in Chesterbrook,
Pennsylvania.
TREVENA INC: Settles Three Securities Suits in Pennsylvania
------------------------------------------------------------
Trevena, Inc. disclosed in its Form 10-Q Report for the period
ended March 31, 2022, filed with the Securities and Exchange
Commission on May 11, 2022, that in February 11, 2021, the parties
in three purported class actions filed in the U.S. District Court
for the Eastern District of Pennsylvania agreed in principle to a
settlement of $8.5 million, all of which was to be paid by the
company's insurance carriers. Said court approved the settlement in
August 2, 2021.
In October and November 2018, the company and certain current and
former officers and directors were sued in three purported class
actions filed in said court alleging violations of the federal
securities laws. In January 2019, the three lawsuits were
consolidated into one action. On February 11, 2021, the parties
agreed in principle to a settlement of $8.5 million.
Trevena, Inc. is a biopharmaceutical company focused on the
development and commercialization of novel medicines for patients
affected by central nervous system disorders. The company operates
in one segment and has its principal office in Chesterbrook,
Pennsylvania.
TRINITY INDUSTRIES: Faces Jackson County Suit over Faulty Guardrail
-------------------------------------------------------------------
Trinity Industries, Inc. disclosed in its Form 10-Q Report for the
quarterly period ended March 31, 2022, filed with the Securities
and Exchange Commission on April 27, 2022, that the company is
facing a lawsuit filed on November 5, 2015, titled "Jackson County,
Missouri, individually and on behalf of a class of others similarly
situated vs. Trinity Industries, Inc. and Trinity Highway Products,
LLC," Case No. 1516-CV23684 (Circuit Court of Jackson County,
Missouri).
The case is being brought by plaintiff for and on behalf of itself
and all Missouri counties with a population of 10,000 or more
persons, including the City of St. Louis, and the State of
Missouri's transportation authority.
The plaintiff alleges that the company and Trinity Highway
Products, LLC did not disclose design changes to its highway
guardrail end-terminal system (ET Plus) and these allegedly
undisclosed design changes made it allegedly defective, unsafe, and
unreasonably dangerous. The plaintiff alleges product liability
negligence, product liability strict liability, and negligently
supplying dangerous instrumentality for supplier's business
purposes.
The plaintiff seeks compensatory damages, interest, attorneys' fees
and costs, and in the alternative plaintiff seeks a declaratory
judgment that the ET Plus is defective, the Company's conduct was
unlawful, and class-wide costs and expenses associated with
removing and replacing the ET Plus throughout Missouri.
On December 6, 2017, the court granted plaintiff's Motion for Class
Certification, certifying a class of Missouri counties with
populations of 10,000 or more persons, including the City of St.
Louis and the State of Missouri's transportation authority that
have or had ET Plus guardrail end terminals with 4-inch wide guide
channels installed on roadways they own or maintain.
Trinity Industries, Inc. and its consolidated subsidiaries own
businesses that are providers of railcar products and services in
Texas.
UNILEVER UNITED: Antiperspirant Deodorant Not Natural, Suit Alleges
-------------------------------------------------------------------
Yesenia Valiente, individually and on behalf of all others
similarly situated v. Unilever United States, Inc., Case No.
1:22-cv-21507-JAL (S.D. Fla., May 16, 2022) alleges that the
Defendant misrepresented and/or omitted the attributes and
qualities of the antiperspirant deodorant (Product), that it
contained only natural oil ingredients, the highlighted ingredients
were natural, and that it contained a non-de minimis amount of the
highlighted ingredients.
The records the Defendant is required to maintain, and/or the
information inconspicuously disclosed to consumers, provided it
with actual and constructive knowledge of the falsity and
deception, through statements and omissions, says the suit.
Unilever sells the antiperspirant deodorant with added moisturizers
containing natural oil under the Dove Advanced Care brand. The
label statements include "¼ moisturizers with natural oil," "go
fresh," a picture of a fruit or vegetable with seeds, and
identification of the active ingredient, "Aluminum Zirconium
Tetrachlorohydrex GLY."
Sales of cosmetics based on natural ingredients are growing twice
the rate of traditional cosmetics and exceed $50 billion per year.
Consumers understand front label cosmetic claims of natural
ingredients to mean the entire product does not contain synthetic
ingredients and/or all the ingredients of the type identified in
the product are natural.
There are several reasons why consumers prefer cosmetics with
natural, instead of synthetic ingredients. First, over
three-quarters of U.S. adults believe cosmetics with synthetic
ingredients are associated with detrimental impacts on health and
the environment. This is because such ingredients are highly
processed with chemical additives and solvents, which can cause
irritation, allergic reactions, and other harmful effects.
Second, one scholar posited "the preference for natural products
appeals to a moral ideology and offers a moral satisfaction."
The Product's statement of "¼ moisturizers with natural oil" is
understood by consumers to mean the absence of any synthetic and/or
synthetically derived ingredients. The Product's statement of "¼
moisturizers with natural oil" is understood by consumers to mean
all the oil ingredients are not synthetic, not produced through
chemical synthesis or by using chemical compounds, even if these
any synthetic ingredients are purportedly absent from the final
ingredient. A. Small Amount of Oil Ingredients, added the suit.
Despite the front label emphasis on "natural" oil, the two oils,
"Hydrogenated Castor Oil" and "Helianthus Annuus (Sunflower) Seed
Oil," are the sixth and twelfth ingredients in order of
predominance by weight. The amount of "natural" and synthetic oils
in the Product is de minimis, relative to the most predominant
ingredients of "Stearyl Alcohol [and] C12-15 Alkyl Benzoate."
Despite the promise of "natural oil," the most predominant oil in
the Product is "Hydrogenated Castor Oil," a synthetic ingredient.
Hydrogenated castor oil consists of synthetic polyethylene glycol
and castor oil. This is produced through ethoxylation, a chemical
reaction in which ethylene oxide is added to the substrate of
castor oil.
Hydrogenated castor oil is added not for moisturizing but because
it is a surfactant, which lowers the surface tension between two
substances. It is misleading to promote the Product with the claim
of "natural oil" when its most predominant oil, hydrogenated castor
oil, is a synthetic ingredient.
The Defendant is the world's largest consumer packaged goods
company, which owns hundreds of iconic brands, from Ben and Jerry's
Ice Cream to Axe Body Spray to Dove cosmetic and personal care
products.
The Product is available to consumers from third party vendors,
which includes grocery stores, dollar stores, warehouse club
stores, drug stores, convenience stores, big box stores, and/or
online, and from Defendant's website.
The Plaintiff purchased the Product on one or more occasions within
the statutes of limitations for each cause of action alleged
herein, at stores including Costco, 7795 W Flagler St No. 01,
Miami, FL 33144, between January 2022 and May 2022, and/or among
other times.[BN]
The Plaintiff is represented by:
Alexander J. Korolinsky, Esq.
AJK LEGAL
1001 Brickell Bay Dr Ste 2700
Miami FL 33401
Telephone: (877) 448-8404
E-mail: korolinsky@ajklegal.com
- and -
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Rd Ste 412
Great Neck NY 11021
Telephone: (516) 268-7080
E-mail: spencer@spencersheehan.com
UNITED BEHAVIORAL: Time to Complete Discovery Extended to August 22
-------------------------------------------------------------------
In the class action lawsuit captioned as R. B. v. United Behavioral
Health, Case No. 1:21-cv-00553 (N.D.N.Y.), the Hon. Judge Christian
F Hummel entered an order on motion for extension of time to
complete discovery of the Plaintiff's motion for class
certification (along with supporting evidence and expert reports,
which shall satisfy the requirements of Federal Rule 26(a)(2). It
shall be filed on or before August 22, 2022.
The Plaintiffs shall depose Defendants class certification expert
and file any reply in support of his motion for class certification
on or before November 21, 2022, says Judge Hummel.
The suit alleges violation of The Employee Retirement Income
Security Act (ERISA) involving contract -- insurance.[CC]
UNITED STATES: Air Force Officer Granted Leave to File SAC
----------------------------------------------------------
In the class action lawsuit captioned as AIR FORCE OFFICER 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, Case No. 5:22-cv-00009-TES (M.D. Ga.), the Hon.
Judge Tilman E. Self, III entered an order:
1. granting the Plaintiff's leave to file her Second Amended
Class Action Complaint pursuant to Rule 15(a)(2);
2. denying as moot the Defendants' Motion to strike
Plaintiff's First Amended Complaint;
3. denying the Defendants' Motion to Stay District Court
Proceedings Pending Appeal, and lifting the briefing stay
previously imposed; and
4. denying as moot Plaintiff's motion to certify class and
appoint counsel and motion for class-wide preliminary
injunction.
The United States Air Force (USAF) is the air service branch of the
United States Armed Forces, and is one of the eight U.S. uniformed
services.
A copy of the Court's order dated April 27, 2022 is available from
PacerMonitor.com at https://bit.ly/3Pifcq1 at no extra charge.[CC]
UNITED STATES: Casa Libre Seeks to Certify Rule 23 Class Action
---------------------------------------------------------------
In the class action lawsuit captioned as CASA LIBRE/FREEDOM HOUSE;
ET AL., v. ALEJANDRO MAYORKAS, SECRETARY, U.S. DEPARTMENT OF
HOMELAND SECURITY; ET AL., Case No. 2:22-cv-01510-ODW-JPR (C.D.
Cal.), the Plaintiffs ask the Court to enter and order certifying
the case as a class action pursuant to Rule 23(b)(2) and (b)(3) of
the Federal Rules of Civil Procedure on behalf of the following
classes of similarly situated persons:
"(a) All persons who have submitted or will submit Special
Immigrant Juvenile (SIJ) petitions (Form I-360) to the United
States Citizenship and Immigration Services ("USCIS"), and
who are deemed ineligible to apply for or receive employment
authorization until their SIJ petitions have been approved
and they have been granted deferred action status or their
priority dates are current and they may apply for Adjustment
of Status.
(b) All persons who have filed or will file SIJ petitions
(Form I-360) with the USCIS, and whose SIJ petitions are not
adjudicated within 180 days of being filed, except as to
members of the certified class in the case entitled Moreno-
Galvez v. Cuccinelli, Case No. C19-0321RSL (W.D. Wash).
The proposed class representatives for Class (a) are Plaintiffs
Rene Gabriel Flores Merino, Hildner Eduardo Coronado Ajtun, Carlos
Abel Hernandez Arevalo, Axel Yafeth Mayorga Aguilera, Rene Isai
Serrano Montes, and Pamela Alejandra Rivera Cambara.
The proposed class representative for Class (b) is Plaintiff Rene
Isai Serrano Montes.
The Plaintiffs challenge Defendants' refusal to permit abused,
neglected, and abandoned immigrant youth seeking SIJ status to
apply for or be granted Employment Authorization documents ("EADs")
until their SIJ petitions are approved and the Defendants, in the
exercise of their discretion and on a "case by case" basis, decide
whether to grant them "deferred action" status, or until their
priority dates are current at which time Defendants allow them to
apply for Adjustment of Status and EADs.
Until March 7, 2022, the day the Complaint in this case was filed,
the Defendants adhered to a policy that a SIJ petitioner could not
file an application for or be granted EADs until their SIJ
petitions were approved and they were at the front of the visa
quota line such that they could finally file applications for
Adjustment of Status to obtain lawful permanent resident status.
Some SIJ applicants have to wait months, if not years, before their
SIJ petition is even adjudicated, which violates the 180-day
mandate Congress imposed on DHS 10 in the William Wilberforce
Trafficking Victims Protection Reauthorization Act of 2008, Pub. L.
No. 110-457 ("TVPRA").
A copy of the Court's order dated April 28, 2022 is available from
PacerMonitor.com at https://bit.ly/3yCJT3w at no extra charge.[CC]
The Plaintiffs are represented by:
Peter A. Schey, Esq.
Daniel Bral, Esq.
CENTER FOR HUMAN RIGHTS & CONSTITUTIONAL LAW
256 South Occidental Blvd.
Los Angeles, CA 90057
Telephone: (213) 388-8693, ext. 309
Facsimile: (213) 386-9484
E-mail: pschey@centerforhumanrights.org
daniel@centerforhumanrights.org
- and -
Camila Alvarez, Esq.
Ruth N. Calvillo, Esq.
Lilit Melkonyan, Esq.
CENTRAL AMERICAN RESOURCE CENTER (CARECEN-LA)
2845 W 7th Street
Los Angeles, CA 9005
Telephone: (213) 385-7800
E-mail: CAlvarez@carecen-la.org
RCalvillo@carecen-la.org
LMelkonyan@carecen-la.org
- and -
Stephany Arzaga, Esq.
Cynthia Henning, Esq.
Claudia Quintanak, Esq.
LEGAL SERVICES FOR CHILDREN
1254 Market St., 3rd Floor
San Francisco, CA 94102
Telephone: (415) 863-3762
E-mail: stephany@lsc-sf.org
cynthia@lsc-sf.org
claudiaq@lsc-sf.org
- and -
Carl Bergquist, Esq.
Maritza Agundez, Esq.
COALITION FOR HUMANE IMMIGRANT RIGHTS (CHIRLA)
2533 West Third St., Suite 101
Los Angeles, CA 90057
Telephone: (213) 201-3781
E-mail: magundez@chirla.org
- and -
Stephen Rosenbaum, Esq.
Marcos Pacheco, Esq.
LA RAZA CENTRO LEGAL, INC.
474 Valencia Street, No. 295
San Francisco, CA 94103
Telephone: (415) 575-3500
E-mail: srosenbaum@law.berkeley.edu
marcos@lrcl.org
- and -
Alex Holguin, Esq.
DREAM ACT LAWYERS
714 W Olympic Blvd, #450
Los Angeles, CA 90015
Telephone: (213) 765-6084
E-mail: aholguin@dalimmigration.com
- and -
Silvia Aguirre, Esq.
THE AGUIRRE LAW FIRM, APC
3521 Whittier Blvd
Los Angeles, CA 90023-1709
Telephone: (213) 386-4649
E-mail: silvia@getjustice.us
- and -
Cristel Martinez, Esq.
LAW OFFICES OF MARTINEZ, NGUYEN & MAGANA
13200 Crossroads Pkwy. N., Suite 115
Industry, CA 91746
Telephone: (213) 246-2197
E-mail: abogada@cristelmartinez.com
- and -
Jim Tom Haynes, Esq.
HAYNES NOVICK IMMIGRATION
2001 S Street NW, Suite 550
Washington, DC 20009
Telephone: 202-350-3933 direct
E-mail jimtom@dcimmigrationattorney.com
- and -
Genevieve Augustin, Esq.
CENTRAL AMERICAN RESOURCE CENTER (CARECEN-DC)
1460 Columbia Road NW, Suite C-1
Washington, DC 20009
Telephone: (202) 328-9799
E-mail: Genevieve.Augustin@carecendc.org
VALVE CORP: Court Narrows Claims in Wolfire's 2nd Amended Complaint
-------------------------------------------------------------------
In the case, WOLFIRE GAMES, LLC, SEAN COLVIN, SUSANN DAVIS, DANIEL
ESCOBAR, WILLIAM HERBERT, RYAN LALLY, HOPE MARCHIONDA, and EVERETT
STEPHENS, individually and on behalf of all others similarly
situated, Plaintiffs v. VALVE CORPORATION, Defendant, Case No.
C21-0563-JCC (W.D. Wash.), Judge John C. Coughenour of the U.S.
District Court for the Western District of Washington, Seattle,
granted in part and denied in part the Defendant's motion to
dismiss the Plaintiffs' second amended consolidated class action
complaint.
I. Background
The Court previously dismissed Plaintiff Wolfire's Sherman Act and
Washington Consumer Protection Act claims, as alleged in the
Plaintiffs' amended class action complaint ("CAC"). The Court
dismissed the complaint after concluding that the CAC failed to
plausibly allege that game publishers suffer price and
non-price-based injury from Defendant's antitrust conduct. It also
found that the CAC did not support Wolfire's preferred market
theory—that the Steam Store and Steam Platform are separate
products offered in separate markets, which Defendant unlawfully
ties. However, the Court granted the Plaintiffs leave to amend, and
they have done just that. The second amended consolidated class
action complaint ("SAC") does not provide new causes of action or
completely new factual allegations; rather, it provides additional
context to the CAC's allegations.
Wolfire contends that these additional facts bolster the following
arguments: (a) the Steam Store and Steam Platform are distinct
products which operate in distinct product markets (which Defendant
unlawfully ties), (b) the Defendant unlawfully imposes an
anticompetitive platform most-favored-nations ("PMFN") requirement
on game publishers, (c) the Plaintiffs' resulting price-based
injuries are distinguishable from those rejected by the Ninth
Circuit in Somers v. Apple, 729 F.3d 953 (9th Cir. 2013), and (d)
the Plaintiffs plausibly allege non-price-based injuries in the
form of reduced game output and quality.
The Defendant again moves to dismiss, arguing that the Plaintiffs'
claims are no more plausible now than before.
II. Discussion
A. Relevant Market
The Plaintiffs' first through fourth causes of action rest on the
theory that the Steam Platform and Steam Store operate in separate
markets, while their fifth through eighth causes of action rest on
the theory that the Defendant competes in a single, integrated game
platform and transaction market. The Defendant argues that the
Plaintiffs' separate market theory is facially unsustainable.
Judge Coughenour agrees. He finds that the commercial realities
alleged in the SAC undercut the Plaintiffs' separate market theory.
The Plaintiffs allege, for example, that a "commercially viable
competitor" in the platform market would "need to convince gamers
and publishers to abandon all of Steam's social networking, library
management, achievement tracking, and other features." But their
facts go on to show that commercial viability for a platform is
possible only when it generates revenue from a linked game store.
Put another way, the Plaintiffs allege no "economic substitute" for
Steam that does not finance its platform through game store
purchases. Therefore, their separate market theory is facially
implausible.
Because the first through fourth causes of action in the SAC rest
on this facially implausible market theory, they are dismissed. The
Plaintiff's seventh cause of action is also dismissed to the extent
it relies on separate product markets.
B. Tying
The Plaintiffs' seventh cause of action also rests, in part, on an
allegation that the Defendant illegally ties the Steam Platform to
the Steam Store. In addition to pleading the existence of separate
markets, the Plaintiffs bringing tying claims must also plausibly
allege that the Defendant "linked the two distinct markets for
products that were distinguishable in the eyes of buyers."
The Court previously dismissed the Plaintiffs' tying claims because
they failed to plausibly allege that the Steam Store and Steam
Platform were separate in the eyes of the relevant consumer--game
publishers. In the SAC, the Plaintiffs add only that some end-users
prefer to use other platforms for "some of the same services
provided by platforms" like social networking and game updates.
They make no allegation that publishers prefer (or would
hypothetically prefer absent the Defendant's conduct) a
freestanding platform for "local and online spaces where gamers can
play, maintain, communicate with other gamers, and track progress
and achievements." The SAC defines platforms as multi-functional
products, but newly alleges only that certain functions garner
independent demand. These facts add nothing to the analysis.
Given the lack of allegations supporting a demand for fully
functional gaming platforms distinct from game stores, the SAC,
like the CAC, fails to plausibly allege that the Steam Store and
Steam Platform are two separate products. And on this basis, the
SAC fails to state an antitrust violation based on tying.
D. Antitrust Conduct
Putting aside the trying allegations, the CAC also alleged that
Defendant utilizes a PMFN regime to support its anticompetitive
objectives. The Defendant previously argued that this regime, as
applied to non-Steam-enabled games, does not amount to plausible
antitrust conduct, though, because the CAC's supporting allegations
were anecdotal and threadbare. The Court did not address the
argument because it concluded that the CAC's failure to allege
antitrust injury was dispositive. But, Judge Coughenour holds that
the SAC plausibly alleges injury. Therefore, he must consider the
adequacy of the SAC's PMFN allegations.
Most-favored-nations restraints, such as those allegedly utilized
by the Defendant, are unlawful if used to further anticompetitive
goals. And, according to the SAC, the Defendant imposes a PMFN
regime to non-Steam-enabled games to "prevent price competition
from rival storefronts," resulting in higher prices for those games
and less competition in the broader PC game distribution market.
The Defendant allegedly enforces this regime through a combination
of written and unwritten rules. And if the SAC is to be believed,
this experience is not unique to Wolfire.
Judge Coughenour holds that these allegations are sufficient to
plausibly allege unlawful conduct. No more is required to survive
the Defendant's Rule 12(b)(6) motion.
E. Injury
The Court previously indicated that, based on its interpretation of
the holding in Somers, an unlawful antitrust injury predicated on
the payment of a supracompetitive fee cannot be plausibly alleged
if that fee remains the same when a defendant did and did not have
market power. And according to the CAC, with the exception of
certain recent volume discounts, the Defendant always charged the
same fee to game publishers, including when the PC desktop game
"digital distribution" market was in a "fledgling stage," even
though Defendant did not become "dominant" in the market until
2013. On this basis, the Court found that the Defendant's allegedly
supracompetitive fees could not result in price-based antitrust
injury.
But the SAC provides needed context, Judge Coughenour finds.
According to the SAC, the Defendant acquired the World Opponent
Network gaming platform in 2001 and shut it down a few years later,
forcing gamers onto the Steam Platform, making Steam "instantly a
must-have platform." This denotes market power earlier on than
described in the CAC. And while both complaints indicate that, in
those early days, the Defendant was competing against
brick-and-mortar game distributors, the SAC makes it clear that
Defendant did not need market power to charge a fee well above its
cost structure because those brick-and-mortar competitors had a far
higher cost structure.
Therefore, based on the allegations contained in the SAC, Judge
Coughenour now concludes that Somers is not controlling. Absent
that limitation, he says, the Plaintiffs plausibly allege
price-based injury. Accordingly, he need not consider the adequacy
of the SAC's allegations regarding non-price harms.
III. Conclusion
For the foregoing reasons, Judge Coughenour granted in part and
denied in part the Defendant's motion to dismiss the SAC. The first
through fourth causes of action and the portion of the seventh
cause of action predicated on separate markets and illegal tying
are dismissed with prejudice, as further amendment would appear
futile. The remaining claims survive.
A full-text copy of the Court's May 6, 2022 Order is available at
https://tinyurl.com/urkvz7by from Leagle.com.
VITAMIN SHOPPE: Ferrari Appeals Summary Judgment Ruling
-------------------------------------------------------
Plaintiffs RICHARD FERRARI, et al., filed an appeal from a court
ruling entered in the lawsuit entitled RICHARD FERRARI and WILLIAM
BOHR, individually and on behalf of all others similarly situated,
Plaintiffs v. VITAMIN SHOPPE, INC., Defendant, Case No.
1:17-cv-10475, in the United States District Court for the District
of Massachusetts.
Mr. Ferrari has filed the putative class action against Vitamin
Shoppe, alleging state common law and statutory claims related to
Vitamin Shoppe's sale of three glutamine containing dietary
supplements under the "BodyTech" brand name. These claims are based
on Ferrari's contention that glutamine supplementation has been
scientifically proven to be ineffective and that Vitamin Shoppe's
label claims suggesting otherwise are objectively false and
misleading to consumers.
Ferrari, a Massachusetts resident, purchased Vitamin Shoppe's
"BodyTech"-brand "Creatine & Glutamine with Beta-Alanine"
supplement from a Vitamin Shoppe store in Peabody, Massachusetts in
September of 2015 and December of 2016. He purchased this product
after reading and relying on the product label, which stated in
relevant part, "glutamine helps support muscle growth and
recovery."
Ferrari alleges that this purchase was made in reliance on Vitamin
Shoppe's promises of providing 'Anti-Catabolic,' 'Muscle Growth,'
'Muscle Endurance,' and 'Muscle Recovery Benefits.' This is
presumably a reference to the statements made on the labels of two
other Vitamin Shoppe products that also contained glutamine,
BodyTech Glutamine and BodyTech BCAA & Glutamine. Though the
complaint does not allege that Ferrari purchased either of those
products or ever read or relied on their label statements, those
label statements claim that glutamine has been shown to possess
Anti-Catabolic properties to help preserve muscle, and that the
intense exercise can deplete glutamine stores, however,
supplemental glutamine is thought to replenish these stores
allowing for enhanced recover.
As reported in the Class Action Reporter on April 26, 2022, the
Hon. Judge Paul Lyness entered an order granting Defendant's motion
for summary judgment in accordance with the Court's Opinion and
Order dated March 31, 2022.
The Plaintiffs is taking an appeal from Judge Lyness' summary
judgment ruling.
The appellate case is captioned as RICHARD FERRARI, individually
and on behalf of all others similarly situated; WILLIAM BOHR,
Plaintiffs-Appellants v. VITAMIN SHOPPE, INC., Defendant-Appellee,
Case No. 22-1332, in the United States Court of Appeals for the
First Circuit, filed on May 9, 2022.
The briefing schedule in the Appellate Case States that appearance
form, transcript report/order form, and docketing statement are due
today, May 23, 2022.[BN]
Plaintiffs-Appellants RICHARD FERRARI and WILLIAM BOHR,
individually and on behalf of all others similarly situated, are
represented by:
Nick Suciu III, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
6905 Telegraph Rd., Suite 115
Bloomfield Hills, MI 48301
Telephone: (313) 303-3472
E-mail: nsuciu@milberg.com
- and -
Charles E. Schaffer, Esq.
LEVIN SEDRAN & BERMAN
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Telephone: (215) 592-1500
E-mail: cschaffer@lfsblaw.com
- and -
Charles J. LaDuca, Esq.
Brendan Thompson, Esq.
CUNEO GILBERT & LADUCA, LLP
4725 Wisconsin Avenue NW Suite 200
Washington, D.C. 20016
Telephone: (202) 789-3960
E-mail: charles@cuneolaw.com
- and -
Erica C. Mirabella, Esq.
MIRABELLA LAW, LLC
132 Boylston Street, 5th Floor
Boston, MA 02116
Telephone: (617) 580-8270
E-mail: erica@mirabellaLLC.com
WALMART INC: Russell Wage-and-Hour Suit Goes to C.D. California
---------------------------------------------------------------
The case styled DEBORAH RUSSELL, individually and on behalf of all
others similarly situated v. WALMART, INC. and DOES 1 through 50,
Case No. CGC-22-599066, was removed from the Superior Court of
California County of San Francisco to the U.S. District Court for
the Northern District of California on May 12, 2022.
The Clerk of Court for the Northern District of California assigned
Case No. 3:22-cv-02813 to the proceeding.
The case arises from the Defendant's alleged failure to pay minimum
wages due under the California Labor Code and the California's
Business and Professions Code.
Walmart, Inc. is an American multinational retail corporation,
headquartered in Bentonville, Arkansas. [BN]
The Defendant is represented by:
Quyen L. Ta, Esq.
Ramon A. Miyar, Esq.
KING & SPALDING LLP
50 California Street, Suite 3300
San Francisco, CA 94111
Telephone: (415) 318-1200
Facsimile: (415) 318-1300
E-mail: QTa@kslaw.com
RMiyar@kslaw.com
- and –
Arwen Johnson, Esq.
Christine Choi, Esq.
KING & SPALDING LLP
633 West Fifth Street, Suite 1600
Los Angeles, CA 90071
Telephone: (213) 443-4355
Facsimile: (213) 443-4310
E-mail: Arwen.Johnson@kslaw.com
CChoi@kslaw.com
WELLS FARGO: Court Dismisses Hawaii Employees' Retirement Suit
--------------------------------------------------------------
In the case, EMPLOYEES' RETIREMENT SYSTEM OF THE STATE OF HAWAII,
on behalf of itself and similarly-situated individuals, Plaintiff
v. WELLS FARGO & COMPANY, C. ALLEN PARKER, TIMOTHY J. SLOAN, JOHN
R. SHREWSBERRY, PERRY PELOS, MARK MYERS, and KARA McSHANE,
Defendants, Case No. C 20-07674 WHA (N.D. Cal.), Judge William
Alsup of the U.S. District Court for the Northern District of
California granted the Defendants' motion to dismiss.
I. Background
At all material times, Wells Fargo was a financial services and
bank holding company. Among other services, it originated
commercial real estate (CRE) loans to fund the purchase,
remodeling, or refinancing of commercial property, as well as
commercial and industrial (C&I) loans to fund business operating
expenses. In addition to originating commercial loans, Wells Fargo
also bundled and sold the right to collect on those loans, a
process known as sponsoring a securitization. The investment
products it bundled included Commercial Mortgage Backed Securities
(CMBS), which star in the complaint.
Employees' Retirement System of the State of Hawaii invested in one
or more Wells Fargo CMBS and serves as court-appointed lead
plaintiff in the putative class action. The putative class consists
of persons or entities damaged as a result of acquiring stock in
commercial loans sponsored by Wells Fargo between Oct. 13, 2017,
and Oct. 13, 2020. The consolidated amended complaint asserts
claims against Wells Fargo and certain officers/
The claims concern the ways in which Wells Fargo assessed the
financial strength of its commercial borrowers during loan
origination. It further concerns assessment of the borrowers whose
existing loans Wells Fargo sponsored into a CMBS. The complaint
"describes a pervasive problem of lenders and securities issuers
have regularly altered financial data for commercial properties
without justification to make the properties appear more valuable,
and borrowers more creditworthy, than they actually are." The
complaint incorporates articles and studies that concerned the
entire industry but also calls out information and trends specific
to Wells Fargo, which allegedly dominated the commercial lending
industry.
As stated, when it issued a loan, Wells Fargo evaluated borrowers'
ability to pay, as well as the value of any property securing the
loan (collateral), in order to determine the size of any loan.
Prior to sponsoring a loan into a CMBS, Wells Fargo similarly
underwrote the existing loan. As used herein, underwriting was this
art of predicting a business' future ability to pay. "Wells Fargo's
process for originating and underwriting commercial mortgage loans"
were allegedly identical. Both included, among other things,
evaluating credit, rent, operating budgets, predicted future cash
flow, and real property (sometimes using appraisers). Central here,
the "underwriting process" before CMBS sponsorship could include
"adjustments" to a borrower's stated financial figures in order to
accommodate the underwriter's opinion about a borrower's long-term
ability to pay.
Wells Fargo specialized in two major types of securitized
commercial investment products: collateralized loan obligations
(CLOs), which contained commercial loans of many types, and CMBSs,
which contained only CRE mortgages. The complaint also notes that
the inflationary practices applied to all commercial lending,
including loans to alternative asset managers who in turn issued
commercial loans using similar risky inflationary practices. CMBS
data availability makes Wells Fargo's CMBS sponsorship the focus of
the complaint, however.
Between 2016 and 2019, Wells Fargo developed at least twenty-six
CMBSs. The "deals" were valued at between $192 million and $1.04
billion. Wells Fargo originated up to 48.9% of the commercial loans
that it bundled into CMBSs in this period. The remainder Wells
Fargo sponsored from other originators. A CMBS usually contained
less than one hundred bundled commercial loans, far fewer than the
residential mortgage-backed securities made famous in the financial
crisis.
In 2019, the wholesale banking division provided 55% of Wells
Fargo's net income. As of June 2020, C&I loans amounted to
approximately $350 billion of Wells Fargo's $513 billion commercial
lending business. CRE loans comprised approximately $146 billion of
the same.
The Defendants now move to dismiss.
II. Analysis
To state a claim under Section 10(b), a complaint must plead (i) a
material misrepresentation or omission; (ii) scienter; (iii)
connection with the purchase or sale of a security; (iv) reliance;
(v) economic loss; and (vi) a causal connection between the
material misrepresentation and the loss. The Defendants contest
falsity, materiality, scienter, and loss causation.
A. Falsity
The complaint chiefly alleges that Wells Fargo originated, bundled,
and sold loans into CMBSs while exaggerating the safety of those
loans by failing to disclose its true, inflationary underwriting
practices. This, it's alleged, rendered false or misleading
defendant officers' statements about, broadly speaking, (1) credit
risk and credit quality relating to underwriting practices and
loan-to-value ratios, and (2) necessary credit reserves and
impairments.
Allegedly false representations also include references to Wells
Fargo having learned its lesson from the financial crisis.
Concerning (2), reserves and other impairments, a press release in
January 2018 announced quarter-end allowances for credit losses of
$12 billion, or 1.25% of total loans. This disclosure was allegedly
"false and/or misleading because Wells Fargo materially understated
the reserves and impairments needed in its commercial loan
portfolio." At all material times, impairments needed referred to
the financial reserves necessary to compensate for losses such as
nonperforming assets, non-accruals, and charge-offs. The complaint
alleges that defendants made additional allegedly false or
misleading disclosures on this topic at various points throughout
the class period.
Judge Alsup holds that the complaint fails adequately to allege
that Wells Fargo unjustifiably inflated the financial figures of up
to one-third of loans sponsored into CMBS trusts, that it
understated loss reserves, or that the Defendants misstated
practices to investors. None of the sources cited reveal that Wells
Fargo's true underwriting standards contradicted descriptions of
"continued credit discipline," or of "conservative," "rigorous,"
"solid," or "strong" credit quality flowing from its lending
practices. Nor does the complaint adequately plead false or
misleading statements with respect to LTV ratios, a critical input
in the underwriting process. Similarly, allegations of false
disclosures about credit reserves and impairments do not succeed.
Since Judge Alsup order finds lacking the allegations of false or
misleading statements, he does not reach materiality, scienter, or
loss causation.
B. Incorporation by Reference
The Plaintiff objects to the Order considering the Defendants'
cited portions of Wells Fargo's prospectus. The prospectus relates
to Wells Fargo's registration statement for Wells Fargo Commercial
Mortgage Trust 2017-C38. The complaint cites this prospectus more
than 10 times. It does so, at one point, to show that underwriters
should not have been "re-underwriting" historical financial figures
but merely complying with origination standards. The Plaintiff also
introduced a further portion of the prospectus dealing with what
operating expenses must be included during underwriting. The
Plaintiff's and the Defendants' reasons for citing the prospectus
-- to show that Wells Fargo's underwriting was either risky or
conservative -- substantially matched.
Judge Alsup finds that more than 10 references ranks as extensive.
Neither side, moreover, appears to contest the prospectus'
provenance. He finds those portions of the prospectus cited by both
sides incorporated by reference and "considers" them as "documents
whose contents are alleged in a complaint and whose authenticity no
party questions." Judge Alsup therefore does not reach whether the
remaining over-900 pages are incorporated by reference. The
Defendants did not object to articles that appeared in The
Intercept or ProPublica, both of which Judge Alsup deems
incorporated by reference.
III. Conclusion
To the extent stated, Judge Alsup granted the motion to dismiss. By
June 6, 2022, at noon, the Plaintiff may seek leave to amend the
dismissed claims with a motion noticed on the normal 35-day
calendar. The Plaintiff must plead its best case. Any motion should
affirmatively demonstrate how the proposed complaint corrects the
deficiencies identified in the Order, as well as all other
deficiencies raised in the Defendants' motion but not addressed in
the Order. The motion should be accompanied by a redlined copy of
any proposed amendment.
A full-text copy of the Court's May 6, 2022 Order is available at
https://tinyurl.com/4skxy3f2 from Leagle.com.
WELLS FARGO: Fyson Appeals Attorney Fees Ruling in Kang Suit
------------------------------------------------------------
Objector KIRK E. FYSON filed an appeal from a court ruling entered
in the lawsuit entitled JAMES C. KANG, an individual, MICHAEL
MOSES, an individual, on behalf of themselves and all others
similarly situated, Plaintiffs v. WELLS FARGO BANK, N.A.; and DOES
1 through 10, inclusive, Defendant. JACQUELINE F. IBARRA, an
individual, on behalf of herself and all others similarly situated,
Plaintiffs v. WELLS FARGO BANK, N.A.; and DOES 1 through 10,
inclusive, Defendant, Case Nos. 5:17-cv-06220-BLF,
5:21-cv-00071-BLF, in the U.S. District Court for the Northern
District of California, San Jose.
Plaintiff Kang filed his action on Oct. 27, 2017. Kang claims that
Defendant Wells Fargo is liable for numerous violations of
California state wage and hour laws with respect to its
California-based mortgage sales force. Notably, he asserts that
individuals employed in the positions of Home Mortgage Consultant,
Home Mortgage Consultant, Jr., Private Mortgage Banker, and Private
Mortgage Banker, Jr. ("HMCs") are subject to a common compensation
plan under which all hourly wages are "clawed back" from earned
sales commissions. Because all wages come out of sales commissions,
Kang alleges, HMCs are not paid for tasks unrelated to sales which
Wells Fargo requires them to do. Kang also asserts that Wells
Fargo's compensation plan promises a certain amount of vacation,
also referred to as paid time off ("PTO"), but that Wells Fargo
"claws back" vacation pay from earned sales commissions. As a
result, HMCs do not actually receive their promised vacation pay,
Kang alleges.
Based on these allegations, Kang asserts claims on behalf of
himself and other California-based HMCs for: (1) failure to pay
minimum wages; (2) failure to pay overtime wages; (3) failure to
pay vacation time; (4) failure to pay all wages owed every pay
period; (5) failure to pay all wages due at separation; and (6)
violation of California's Unfair Competition Act.
On February 27, 2019, Judge Beth Labson Freeman of the U.S.
District Court for the Northern District of California granted the
parties' Amended Joint Motion Stipulating to Amended of Complaint,
Certification of Plaintiff's Rest Break Claims, and Stay of Action
Pending Decision in Ibarra Matter.
Pursuant to the Joint Motion Stipulating to Class Notice, and for
good cause shown, Judge Freeman consolidated the claims pleaded in
the separate class action, Michael Moses v. Wells Fargo Bank, N.A.,
Case No. 3:18 cv 6679, into the instant action. She entered the
amended consolidated complaint, which will proceed under the Kang
case number following consolidation of the Moses action, which will
be closed.
As reported in the Class Action Reporter, the Northern District of
California issued an order granting the Plaintiffs' motion for
preliminary approval of $95.7 million class action settlement.
On December 22, 2021, Mr. Fyson filed a motion for attorney fees
and service payment which the Court granted-in-part and
denied-in-part on April 15, 2022 through an Order signed by Judge
Freeman.
Mr. Fyson now seeks a review of this order.
The appellate case is captioned as Kirk E. Fyson, et al. v. Wells
Fargo Bank, N.A., Case No. 22-15694, in the United States Court of
Appeals for the Ninth Circuit, filed on May 6, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant Kirk E. Fyson Mediation Questionnaire was due on
May 13, 2022;
-- Transcript shall be ordered by June 6, 2022;
-- Transcript is due on July 5, 2022;
-- Appellant Kirk E. Fyson opening brief is due on August 15,
2022;
-- Appellees Patricia Barreras, Jacqueline F. Ibarra, James C.
Kang, Michael Moses and Wells Fargo Bank, N.A. answering brief is
due on September 15, 2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Objector-Appellant KIRK E. FYSON is represented by:
Nancy E. Gray, Esq.
GRAY & ASSOCIATES, P.C.
11500 West Olympic Boulevard, Suite 400
Los Angeles, CA 90064
Telephone: (310) 452-1211
- and -
Marc Silverman, Esq.
FRANK WEINBERG & BLACK, PA
7805 SW 6th Court
Plantation, FL 33324
Telephone: (954) 474-8000
- and -
Robert D. Soloff, Esq.
7805 SW 6th Court, Suite 400
Plantation, FL 33324
Telephone: (954) 472-0002
- and -
Justin Lee Swidler, Esq.
SWARTZ SWIDLER, LLC
1101 North Kings Highway
Cherry Hill, NJ 08034
Telephone: (856) 685-7420
Plaintiffs-Appellees JAMES C. KANG, MICHAEL MOSES, PATRICIA
BARRERAS, and JACQUELINE F. IBARRA, individually and on behalf of
all others similarly situated, are represented by:
Eileen Goldsmith, Esq.
Michael Rubin, Esq.
ALTSHULER BERZON LLP
177 Post Street, Suite 300
San Francisco, CA 94108
Telephone: (415) 421-7151
- and -
Joshua Haffner, Esq.
HAFFNER LAW PC
445 S. Figueroa Street, Suite 2625
Los Angeles, CA 90071
Telephone: (213) 514-5681
E-mail: jhh@haffnerlawyers.com
- and -
Paul Stevens, Esq.
STEVENS, LC
1855 Industrial Street, Suite 518
Los Angeles, CA 90021
Telephone: (213) 270-1215
E-mail: pstevens@stevenslc.com
Defendant-Appellee WELLS FARGO BANK, N.A. is represented by:
Paul Berkowitz, Esq.
Thomas Roy Kaufman, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON, LLP
333 S Hope Street, 43rd Floor
Los Angeles, CA 90071-1448
Telephone: (310) 228-3700
E-mail: pberkowitz@sheppardmullin.com
tkaufman@sheppardmullin.com
WEST VIRGINIA-AMERICAN: Jeffries Suit Over Water Service Ongoing
----------------------------------------------------------------
American Water Works Company, Inc. disclosed in its Form 10-Q
Report for the quarterly period ended March 31, 2022, filed with
the Securities and Exchange Commission on April 27, 2022, that its
subsidiary West Virginia-American Water Company (WVAWC) is facing
an alleged class action filed by residents and business owners who
lost water service or pressure as a result of the Dunbar main
break.
On June 2, 2017, a complaint captioned "Jeffries, et al. v. West
Virginia-American Water Company" was filed in West Virginia Circuit
Court in Kanawha County alleging breach of contract by WVAWC for
failure to supply water, violation of West Virginia law regarding
the sufficiency of WVAWC's facilities and negligence by WVAWC in
the design, maintenance and operation of the water system. The
Jeffries plaintiffs seek unspecified alleged damages on behalf of
the class for lost profits, annoyance and inconvenience, and loss
of use, as well as punitive damages for willful, reckless and
wanton behavior in not addressing the risk of pipe failure and a
large outage.
In February 2020, the Jeffries plaintiffs filed a motion seeking
class certification on the issues of breach of contract and
negligence, and to determine the applicability of punitive damages
and a multiplier for those damages if imposed. In July 2020, the
Circuit Court entered an order granting the Jeffries plaintiffs'
motion for certification of a class regarding certain liability
issues but denying certification of a class to determine a punitive
damages multiplier. In August 2020, WVAWC filed a Petition for Writ
of Prohibition in the Supreme Court of Appeals of West Virginia
seeking to vacate or remand the Circuit Court's order certifying
the issues class. On January 28, 2021, the Supreme Court of Appeals
remanded the case back to the Circuit Court for further
consideration in light of a decision issued in another case
relating to the class certification issues raised on appeal. On
July 16, 2021, oral argument was heard by the Circuit Court on the
issue of addressing the Supreme Court of Appeals' remand. This
matter remains pending.
American Water Works Company, Inc. is a traded water and wastewater
utility company in New Jersey.
WINCO FOODS: Discovery & PTO Deadlines Extended in Miller Suit
--------------------------------------------------------------
In the class action lawsuit captioned as Miller v. Winco Foods,
LLC, Case No. 3:19-cv-02094 (D. Or.), the Hon. Judge Jeffrey
Armistead entered an order extending the discovery & PTO Deadlines
as follows:
(1) Class certification rebuttal July 25, 2022
witness disclosures are to be
completed by:
(2) Expert Discovery to be Aug. 22, 2022
completed by:
(3) Class certification motion Oct. 11, 2022
to be filed by:
(4) Dispositive motions will be due 30 days after the Court's
ruling on class certification.
The nature of suit states Torts -- Personal Property -- Other
Personal Property Damage.
WinCo Foods is a privately held, majority employee-owned American
supermarket chain based in Boise, Idaho, with retail stores in
Arizona, California, Idaho, Montana, Nevada, Oklahoma, Oregon,
Texas, Utah, and Washington. It was founded in 1967 as a no-frills
warehouse-style store with low prices.[CC]
XP POWER: Seeks to Seal Portions of Sur-Reply to CTU Injunction Bid
-------------------------------------------------------------------
In the class action lawsuit captioned as COMET TECHNOLOGIES USA
INC., a Delaware corporation, COMET AG, a Swiss corporation, and
YXLON International GmbH, a German corporation, v. XP POWER LLC, a
California Limited Liability Company, Case No. 5:20-cv-06408-NC
(N.D. Cal.), the Defendant files an administrative motion to File
Under Seal under controlling authority and the Local Rules.
Specifically, XP moves to seal portions of its Sur-Reply to
Plaintiffs' Motion for Permanent Injunction which contains
sensitive confidential business information designated as "Highly
Confidential – Outside Attorneys' Eyes Only" under the Protective
Order. Disclosure of this information could competitively harm XP,
and XP respectfully requests that the Court grant XP's request to
seal it.
A copy of the Defendant's motion dated April 27, 2022 is available
from PacerMonitor.com at https://bit.ly/3PjLKjo at no extra
charge.[CC]
The Defendant is represented by:
Thomas W. Yeh, Esq.
Joseph B. Farrell, Esq.
Patricia Young, Esq.
Jeffrey G. Homrig, Esq.
Blake R. Davis, Esq.
Matthew W. Walch, Esq.
Russell Mangas, Esq.
Laura Zenzerovich, Esq.
Stephen D. O'Donohue, Esq.
Razi Safi, Esq.
LATHAM & WATKINS
355 South Grand Avenue, Suite 100
Los Angeles, CA 90071
Telephone: (213) 485-1234
Facsimile: (213) 891-8763
E-mail: joe.farrell@lw.com
thomas.yeh@lw.com
patricia.young@lw.com
jeff.homrig@lw.com
blake.davis@lw.com
matthew.walch@lw.com
russell.mangas@lw.com
laura.zenzerovich@lw.com
stephen.odonohue@lw.com
razi.safi@lw.com
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2022. All rights reserved. ISSN 1525-2272.
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