/raid1/www/Hosts/bankrupt/CAR_Public/220525.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, May 25, 2022, Vol. 24, No. 98
Headlines
1-800-FLOWERS.COM INC: Orsino FTSA Suit Removed to S.D. Florida
1ST CLASS REAL ESTATE: Reeves Files TCPA Suit in W.D. Tennessee
2U INC: Harper Suit Stayed Until June 2
3M COMPANY: AFFF Products Can Cause Cancer, Lawrence Suit Alleges
3M COMPANY: Exposed Firefighters to PFAS, Francescone Suit Claims
3M COMPANY: Hicks Sues Over Exposure to Toxic Film-Forming Foams
3M COMPANY: Smith Product Liability Suit Removed to E.D. Kentucky
3M COMPANY: Sparks Sues Over Complications From AFFF Products
3M COMPANY: Stuart Sues Over Injury Sustained From AFFF Products
3M COMPANY: Vanduch Sues Over Exposure to Highly Toxic Chemicals
A2 MILK: Third Class Suit Filed in New Zealand Over Inaccurate Info
ACTIVE INTEREST: Taylor Files Suit in W.D. Michigan
ACV AUCTIONS: Faces Antitrust Suit in NY Court
ADESSO INC: Calcano Files ADA Suit in S.D. New York
ALLEGIANCE RETAIL: Hanyzkiewicz ADA Suit Transferred to S.D.N.Y.
ALLEN COUNTY, IN: Addresses Jail Issues After Inmate Suit Ruling
ALTER ECO AMERICAS: Chalas Files ADA Suit in S.D. New York
AMAZON.COM INC: Faces Discrimination Class Action in Washington
AMAZON.COM SERVICES: Seeks to Stay Class Certification Briefing
AMERICAN SECURITY: Underpays Security Guards, Arenas Suit Alleges
APPLE INC: Ninth Cir. Affirms Dismissal of Taleshpour Class Suit
APPLUS TECHNOLOGIES: Kelley Wage-and-Hour Suit Goes to C.D. Cal.
ARCARE: White Files Suit in E.D. Arkansas
ARLO TECHNOLOGIES: Shareholder Suit in California Dismissed
ASHFORD INC: Securities Class Suit Ongoing in California
ASHFORD MARTIN: Underpays Nursing Assistants, Van Camp Alleges
AUGUSTA SWIM: Feliz Files ADA Suit in S.D. New York
AXSOME THERAPEUTICS: Bragar Eagel Reminds of July 12 Deadline
BANK OF AMERICA: E.D. New York Dismisses Gibbs RICO/GBL Suit
BANK OF AMERICA: Mahoney Sues Over Blind-Inaccessible Website
BARNABAS HEALTH: Settlements ERISA Class Action for $1.75 Million
BLACKSTONE CONSULTING: Lockett Labor Code Suit Goes to C.D. Cal.
BLENDERS EYEWEAR: Smaling Sues Over Unsolicited Text Message Ads
BLIZZARD ENTERTAINMENT: Y.H. Suit Removed to C.D. California
BLUE DIAMOND: Deaver Files Suit in Cal. Super. Ct.
BOTE LLC: Feliz Files ADA Suit in S.D. New York
BRP US: Bella Vista Files Suit in S.D. Florida
BUREAU VERITAS: Creagh Sues Over Elevator Inspectors' Unpaid OT
CALIFORNIA: Perkins Coie Attorneys Discuss California Privacy Law
CALVIN KLEIN: Mason Says Website Inaccessible to Blind Users
CAN B CORP: Chalas Files ADA Suit in S.D. New York
CANADA: Immigration Detainees Sue Over Unfair Detention Practices
CANISIUS COLLEGE: Miller Files ADA Suit in W.D. New York
CAPITAL ONE: Aug. 22 Settlement Claims Filing Deadline Set
CARGILL MEAT: Marin Labor Code Suit Removed to E.D. California
CARGILL MEAT: Removes Employment Class Action to E.D. Calif.
CARNAGIO ENTERPRISES: Policy Exclusions Inapplicable in BIPA Suit
CEDAR REALTY: Faces Sydney Securities Suit Over Merger Issue
CELGENE CORP: July 11 Class Action Opt-Out Deadline Set
CELLCO PARTNERSHIP: Ruling in Consumer Contract Suit Discussed
CETERIS PORTFOLIO: Nojovits Files FDCPA Suit in E.D. New York
CHARTER COMMUNICATIONS: Wins Partial Summary Judgment in Sansone
CHESTER WATER: Faces Sullivan Suit Over RICO and ADA Violations
CIGNA HEALTH: Hockenstein Sues Over Denial of COVID-19 Cost Claims
CNM MARKETING: Feliz Files ADA Suit in S.D. New York
COLGATE UNIVERSITY: Miller Files ADA Suit in W.D. New York
COLLECTO INC: Davis Must File Class Cert Bid by Sept. 6
CORECIVIC OF TENNESSEE: Turner FLSA Suit Removed to D. Nevada
CURO INTERMEDIATE: Pierre Sues Over Unlawful Collection of Debt
CVS PHARMACY: Court Narrows Claims in Fuog's 2nd Amended Class Suit
D&D PIZZA: Court Denies Bid to Seal Settlement Docs in Mason Suit
DEMOULIN BROTHERS: Chalas Files ADA Suit in S.D. New York
DIALAMERICA MARKETING: Edwards Files Suit in S.D. California
DOCUSIGN INC: Pottetti Sues Over 42% Drop of Common Stock Price
DRIVETIME AUTOMOTIVE: Wheeldon Files TCPA Suit in D. Arizona
DYE & DURHAM: Faces Class Action Over Competition Law Breaches
EASTPOINT RECOVERY: Wins Bid for Summary Judgment in Ergas Suit
EL ALACRAN SUPERMARKET: Fails to Pay Proper Wages, Contreras Says
EXTREMELY CLEAN: Fails to Properly Pay Wages, Roland Suit Claims
FAB NUTRITION: Chalas Files ADA Suit in S.D. New York
FIRST HIGH-SCHOOL: Frank R. Cruz Law Reminds of July 11 Deadline
FLOWERS FOODS: Class Action Settlement in Noll Gets Final Nod
FORD MOTOR: Bid to Strike Claims in Cashatt Suit Granted in Part
FREEDOM FINANCIAL: Foley & Lardner Discusses Ruling in TCPA Suit
GENWORTH FINANCIAL: Court Tosses Counts V to VII in Burkhart Suit
GEORGE LITTLE: Paluch Files Suit in W.D. Pennsylvania
GERBER PRODUCTS: Interim Co-Lead Counsel in Baby Food Suit Named
GHOST LLC: Helems Sues Over Dietary Supplements' Deceptive Label
GINNY'S INC: Loadholt Files ADA Suit in S.D. New York
GODIVA CHOCOLATIER: Faegre Drinker Discusses Settlement Objections
GREATBANC TRUST: Settles Stock Plan Class Action for $16.5MM
GROUP US: Munoz Sues Over Unpaid Wages for Restaurant Bussers
HAIER US APPLIANCE: Jones Suit Transferred to S.D. New York
HARMON STORES: Fails to Timely Pay Wages, Georgiou Suit Claims
HELLOFRESH SE: Faces Class Action Over Alleged ADA Violations
HOMEAGLOW INC: Gomes Wage-and-Hour Suit Goes to E.D. California
ILLINOIS: Monitor Graham Gets Free PACER Access in Monroe v. IDOC
INDIANA: 7th Circuit Dismisses Child Welfare System Class Action
IRONNET INC: Bernstein Liebhard Reminds of June 21 Deadline
ISABELLA GERIATRIC: Fails to Take COVID-19 Measures, Lieder Says
JBS USA: Andrade Negligence Suit Removed to S.D. Iowa
JHPDE FINANCE I: Rosenberg Files FDCPA Suit in D. New Jersey
JUNIPER HOSPITALITY: McKinney Files ADA Suit in C.D. California
K HEALTH INC: Chalas Files ADA Suit in S.D. New York
KANSAS HEART: Wins Leave to Amend RICO Complaint v. Executives
KAP7 INTERNATIONAL: Feliz Files ADA Suit in S.D. New York
L'OREAL USA: Cauchi Sues Over Presence of PFAS on Mascara Products
LAKEVIEW LOAN: Faces Data Breach Class Actions
LOVE YOU FOODS: Chalas Files ADA Suit in S.D. New York
LUGG INC: Berry Files Suit in Cal. Super. Ct.
MAXIMUS INC: Court Grants Thomas' Bid for Equitable Tolling
MAXIMUS INC: Court Strikes Supplemental Evidence in Thomas Suit
MAXIMUS INC: Thomas' Bid for Class Certification Granted in Part
MDL 2724: Bid to Dismiss State Law Claims in Antitrust Suit Denied
MDL 2807: $5.73M Class Deal in Security Breach Suit Wins Prelim. OK
MDL 2879: Class Cert Partly Granted in Data Security Breach Suit
MDL 2994: Claims in Customer Data Security Breach Suit Narrowed
MEDCHOICE RISK: Pretrial & Discovery Deadlines in Amin Suit Stayed
META PLATFORMS: BIPA Class Action Settlement Payouts Begin
META PLATFORMS: Faces Citizenship Bias Class Action in California
META PLATFORMS: Rajaram Sues Over Citizenship-Based Discrimination
MICHAELS ORGANIZATION: Faces Suit Over Military Housing Conditions
MINOR LEAGUE: Settles Minor League Players' Wage Class Action
MOHAWK INDUSTRIES: Filing of Class Status Bid Due April 11, 2023
MOORE ST: Unlawfully Evicts Apartment Tenants, Ramsey Suit Claims
MORECOMMERCE INC: Chalas Files ADA Suit in S.D. New York
MORGAN STANLEY: Watters Labor Code Suit Goes to N.D. California
MRS BPO: Maldonado FDCPA Suit Removed to N.D. Illinois
MULLEN AUTOMOTIVE: Glancy Prongay Reminds of July 5 Deadline
NATIONAL FOOTBALL: Casey's Suit Alleges Monopoly of NFL Products
NEIGHBORLY VENTURES: Naylor Suit Removed to D. Oregon
NEW YORK: Filing of Class Certification Bid Extended to June 28
NORTHERN MANAGEMENT: Fails to Pay Proper Wages, Dufrane Alleges
NYC HEALTH: Faces Kociubinski Suit Over Nurses' Unpaid Overtime
NYLIFE SECURITIES: Cause Needed to Extend Discovery in Bradford
OCEAN AVENUE: Moreno Files Suit in Cal. Super. Ct.
OLIVER TWIST INC: Delva Files Suit in Mass. Super. Ct.
ONE SOURCE: Harris FCRA Suit Removed to W.D. Missouri
ONE WISH: Feliz Files ADA Suit in S.D. New York
OREGON: Faces Class Action Over Lack of Public Defenders
OSCAR HEALTH: Faces Suit Over Misleading Registration Statements
OSCAR HEALTH: Lieff Cabraser Reminds of July 11 Deadline
OSCAR HEALTH: Robbins LLP Reminds of July 11 Deadline
OTONOMO INC: Mollaei Suit Removed to N.D. California
PAPARAZZI LLC: Hollins Suit Transferred to S.D. New York
PAYSAFE LTD: Court Names Kessler Lead Counsel in Securities Suit
PEARISON INC: Chalas Files ADA Suit in S.D. New York
PERRIGO COMPANY: Faces Antitrust Suits Over Topical Meds
PERRIGO COMPANY: Faces Price-Rigging Suit in Ontario Court
PERRIGO COMPANY: Faces Price-Rigging Suits in Pennsylvania
PERRIGO COMPANY: Faces Wilson Class Suit in New Jersey
PERSONALIZATIONMALL.COM: Settles BIPA Class Action for $4.5MM
PIRATE PIZZA: Fails to Reimburse Automobile Costs, Southerland Says
POLARIS INC: Fails to Properly Pay Wages, Isbell Suit Claims
PROGRESSIVE SELECT: Reduces ACV of Total Loss Vehicles, Sibert Says
QUALCOMM INC: British Consumer Group Can Proceed With Class Action
RDS HOME: Cepeda Sues Over Home Care Workers' Unpaid Overtime
RECREONICS INC: Feliz Files ADA Suit in S.D. New York
RESTORATION ROBOTICS: Court Affirms Securities Class Suit Dismissal
RESTORATION ROBOTICS: Must Face Securities Class Action Lawsuit
RON WILLIAMS FITNESS: Chalas Files ADA Suit in S.D. New York
RUNNING SUPPLY: Chalas Files ADA Suit in S.D. New York
SAFEMOON LLC: Misleads Investors to Buy Tokens, Rackauckas Claims
SESAME INC: Chalas Files ADA Suit in S.D. New York
SHAKE SHACK: Tyson Files Suit in New York Over Unpaid Wages
SHANGHAI CITY: Bid to Certify Class in Huang Labor Suit Denied
SOCIETAL CDMO: To Settle Securities Row in E.D. Pa.
SOUTH AFRICA: Military Veterans to Proceed With Class Action
SOUTHWEST AIRLINES: Erlich Law Firm Files FMLA Class Action Suit
SPINNAKER RESORTS: Bryant TCPA Suit Transferred to E.D. Virginia
STATE BAR: Informational Privacy Rights Suit Removed to C.D. Cal.
SUNRISE PHARMACY: Faces Jimenez Wage-and-Hour Suit in E.D.N.Y.
TAILORED FOAM: Wynter Files FLSA Suit in N.D. Illinois
TEN BRIDGES: Taie Must File Class Certification Bid by Nov. 18
TIREHUB LLC: Court Denies Without Prejudice Jones' Bid to Compel
TOTO USA: Redick Files ADA Suit in C.D. California
TRANS UNION LLC: Christian Suit Alleges Violations of FCRA
TRANSWORLD SYSTEMS: Order Continuing Deadlines Entered in Hoffman
UNION PACIFIC: Fitness-for-Duty Program Violates ADA, Vasquez Says
UNITED ELECTRICAL: Court Conditionally Certifies Class in Heeg Suit
UNITED STATES: Air Force Officer's Class Cert. Bid Nixed as Moot
UNITED STATES: Air Force Officers Seek to Certify Class
UPSTART HOLDINGS: Bernstein Liebhard Reminds of July 12 Deadline
UPSTART HOLDINGS: Bronstein Gewirtz Reminds of July 12 Deadline
UPSTART HOLDINGS: Hagens Berman Reminds of July 12 Deadline
UPSTART HOLDINGS: Robbins LLP Reminds of July 12 Deadline
VALE SA: SEC Files ESG Enforcement Action After Securities Suit
VAN'S INT'L: Bids to Dismiss & to Stay Brown Class Suit Denied
VTECH HEALTHCARE: Faces Wheeler FLSA Suit in E.D. Virginia
WALMART INC: Parties in Powell Seek to Amend Briefing Dates
WAYNE COUNTY, MI: Review of Summary Judgment in Woodall Suit Nixed
WELLS FARGO: Forsburg RICO Suit Moved From W.D. Va. to N.D. Cal.
WENDY'S CO: Faces Class Action Over Misleading Burger Ads
WENDY'S INTERNATIONAL: Chimienti Sues Over Mislabeled Burgers
WHEELER REAL ESTATE: Faces Steamboat Capital Suit in Maryland
WISE MEDICAL: Class of Health Employees Certified in Fortin Suit
WOODEY SHOP: Luis Files ADA Suit in S.D. New York
YIELDSTREET INC: Motion to Dismiss Securities Class Action Denied
ZENDESK INC: Court Dismisses Anderson Suit Without Prejudice
[*] More Than 200 Crypto Class Action Lawsuits Filed in May 2022
*********
1-800-FLOWERS.COM INC: Orsino FTSA Suit Removed to S.D. Florida
---------------------------------------------------------------
The case styled VANESSA ORSINO, individually and on behalf of all
others similarly situated v. 1-800-FLOWERS.COM, INC., was removed
from the Circuit Court of the Seventeenth Judicial Circuit in and
for Broward County, Florida, to the U.S. District Court for the
Southern District of Florida on May 16, 2022.
The Clerk of Court for the Southern District of Florida assigned
Case No. 0:22-cv-60928 to the proceeding.
The case arises from the Defendant's alleged violation of the
Florida Telephone Solicitation Act and the Telephone Consumer
Protection Act by engaging in sales calls without prior express
written consent.
1-800-Flowers.com, Inc. is a floral and foods gift retailer and
distribution company headquartered in New York. [BN]
The Defendant is represented by:
J. Douglas Baldridge, Esq.
Theodore B. Randles, Esq.
VENABLE LLP
600 Massachusetts Ave., N.W.
Washington, DC 20001
Telephone: (202) 344-4000
Facsimile: (202) 344-8300
E-mail: jbaldridge@venable.com
tbrandles@venable.com
1ST CLASS REAL ESTATE: Reeves Files TCPA Suit in W.D. Tennessee
---------------------------------------------------------------
A class action lawsuit has been filed against 1st Class Real Estate
LLC. The case is styled as Ruth Reeves, individually, and on behalf
of all others similarly situated v. 1st Class Real Estate LLC, Case
No. 1:22-cv-01097-STA-jay (W.D. Tenn., May 16, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for the Restrictions of Use of Telephone
Equipment.
1st Class Real Estate -- https://www.1stclassrealestate.com/ -- is
a full-service real estate company.[BN]
The Plaintiff is represented by:
Bradley G. Kirk, Esq.
BRADLEY G. KIRK
1910 Madison Avenue, Ste. #112
Memphis, TN 38104
Phone: (901) 206-6163
Email: bgkirklaw@gmail.com
2U INC: Harper Suit Stayed Until June 2
---------------------------------------
In the securities class action lawsuit captioned as Harper v. 2U,
Inc., et al., Case No. 8:19-cv-03455-TDC (D. Md.), the Hon. Judge
Theodore D. Chuang entered an order that:
1. The motion to extend the stay is granted. The case is
stayed until June 2, 2022.
2. The Plaintiffs' Motion for Class Certification is denied
without prejudice. In the event this case continues to
proceed. Plaintiffs may renew their Motion.
2U, Inc is an American educational technology company that
contracts with non-profit colleges and universities to build,
deliver and support online degree and non-degree programs.
A copy of the Court's order dated May 3, 2022 is available from
PacerMonitor.com at https://bit.ly/39zrRoa at no extra charge.[CC]
3M COMPANY: AFFF Products Can Cause Cancer, Lawrence Suit Alleges
-----------------------------------------------------------------
KAY LAWRENCE, individually and on behalf of all others similarly
situated, Plaintiff v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); ACG CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Defendants, Case No. 2:22-cv-01549-RMG
(D.S.C., May 13, 2022) is a class action against the Defendants for
negligence, battery, inadequate warning, design defect, strict
liability, fraudulent concealment, breach of express and implied
warranties, and wantonness.
The case arises from severe personal injuries sustained by the
Plaintiff as a result of his exposure to the Defendants' aqueous
film forming foam (AFFF) products containing synthetic, toxic per-
and polyfluoroalkyl substances collectively known as PFAS. The
Defendants failed to use reasonable and appropriate care in the
design, manufacture, labeling, warning, instruction, training,
selling, marketing, and distribution of their PFAS-containing AFFF
products and also failed to warn public entities and civilian
firefighters, including the Plaintiff, who they knew would
foreseeably come into contact with their AFFF products that use of
and/or exposure to the products would pose a danger to human
health. Due to inadequate warning, the Plaintiff was exposed to
toxic chemicals and was diagnosed with liver cancer, the suit
alleges.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and –
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
3M COMPANY: Exposed Firefighters to PFAS, Francescone Suit Claims
-----------------------------------------------------------------
PATRICK FRANCESCONE and TISHA FRANCESCONE, his wife, individually
and on behalf of all others similarly situated, Plaintiffs v. 3M
COMPANY (f/k/a Minnesota Mining and Manufacturing Company); ACG
CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.;
ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL
CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS,
INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.;
CORTEVA, INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC.
(f/k/a DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS
AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL
COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE
PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED
TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION,
INC. (f/k/a GE Interlogix, Inc.); and ABC CORPORATIONS (1-50),
Defendants, Case No. 2:22-cv-01542-RMG (D.S.C., May 13, 2022) is a
class action against the Defendants for negligence, battery,
inadequate warning, design defect, strict liability, fraudulent
concealment, breach of express and implied warranties, wantonness,
and per quod claim.
The case arises from severe personal injuries sustained by
Plaintiff Patrick Francescone as a result of his exposure to the
Defendants' aqueous film forming foam (AFFF) products containing
synthetic, toxic per- and polyfluoroalkyl substances collectively
known as PFAS. The Defendants failed to use reasonable and
appropriate care in the design, manufacture, labeling, warning,
instruction, training, selling, marketing, and distribution of
their PFAS-containing AFFF products and also failed to warn public
entities and civilian firefighters, including Mr. Francescone, who
they knew would foreseeably come into contact with their AFFF
products that use of and/or exposure to the products would pose a
danger to human health. Due to inadequate warning, Mr. Francescone
was exposed to toxic chemicals and was diagnosed with prostate
cancer and/or other medical conditions, says the suit.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiffs are represented by:
Stephen T. Sullivan, Jr., Esq.
John E. Keefe, Jr., Esq.
WILENTZ, GOLDMAN & SPITZER P.A.
125 Half Mile Road, Suite 100
Red Bank, NJ 07701
Telephone: (732) 855-6060
Facsimile: (732) 726-4860
3M COMPANY: Hicks Sues Over Exposure to Toxic Film-Forming Foams
----------------------------------------------------------------
Harold Hicks, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS
INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE
FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN
PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY
FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Case No. 2:22-cv-01445-RMG (D.S.C., May 4,
2022), is brought for damages for personal injury resulting from
exposure to aqueous film-forming foams ("AFFF") containing the
toxic chemicals collectively known as per and polyfluoroalkyl
substances ("PFAS"). PFAS includes, but is not limited to,
perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid
("PFOS") and related chemicals including those that degrade to PFOA
and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires. The Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter and was diagnosed with
bladder cancer as a result of exposure to the Defendants' AFFF
products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Phone: 631-600-0000
Facsimile: 631-543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Phone: 205-328-9200
Facsimile: 205-328-9456
3M COMPANY: Smith Product Liability Suit Removed to E.D. Kentucky
-----------------------------------------------------------------
The case styled WILLIAM SMITH, individually and on behalf of all
others similarly situated v. MINE SAFETY APPLIANCES COMPANY; 3M
COMPANY f/k/a MINNESOTA MINING AND MANUFACTURING COMPANY; AMERICAN
OPTICAL CORPORATION; CABOT CSC CORPORATION; CABOT CORPORATION;
AEARO TECHNOLOGIES, LLC; AEARO LLC; KENTUCKY MINE SUPPLY COMPANY;
and MINE SERVICE COMPANY, INC., Case No. 22-CI-290, was removed
from the Pike County, Kentucky, Circuit Court, to the U.S. District
Court for the Eastern District of Kentucky on May 16, 2022.
The Clerk of Court for the Eastern District of Kentucky assigned
Case No. 7:22-cv-00046-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 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 Corporation is a specialty chemicals company based in
Massachusetts.
Cabot Corporation is a specialty chemicals company based in
Massachusetts.
Aearo Technologies, LLC is an energy-control technology company
based in Indianapolis, Indiana.
Aearo 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.
THOMPSON MILLER & SIMPSON PLC
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
3M COMPANY: Sparks Sues Over Complications From AFFF Products
-------------------------------------------------------------
ALBERT SPARKS, individually and on behalf of all others similarly
situated, Plaintiff v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); ACG CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Defendants, Case No. 2:22-cv-01543-RMG
(D.S.C., May 13, 2022) is a class action against the Defendants for
negligence, battery, inadequate warning, design defect, strict
liability, fraudulent concealment, breach of express and implied
warranties, and wantonness.
The case arises from severe personal injuries sustained by the
Plaintiff as a result of his exposure to the Defendants' aqueous
film forming foam (AFFF) products containing synthetic, toxic per-
and polyfluoroalkyl substances collectively known as PFAS. The
Defendants failed to use reasonable and appropriate care in the
design, manufacture, labeling, warning, instruction, training,
selling, marketing, and distribution of their PFAS-containing AFFF
products and also failed to warn public entities and civilian
firefighters, including the Plaintiff, who they knew would
foreseeably come into contact with their AFFF products that use of
and/or exposure to the products would pose a danger to human
health. Due to inadequate warning, the Plaintiff was allegedly
exposed to toxic chemicals and was diagnosed with leukemia.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and –
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
3M COMPANY: Stuart Sues Over Injury Sustained From AFFF Products
----------------------------------------------------------------
WENDY STUART, as administrator of the estate of Robert Stuart,
deceased, individually and on behalf of all others similarly
situated, Plaintiff v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); ACG CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Defendants, Case No. 2:22-cv-01548-RMG
(D.S.C., May 13, 2022) is a class action against the Defendants for
negligence, battery, inadequate warning, design defect, strict
liability, fraudulent concealment, breach of express and implied
warranties, and wantonness.
According to the complaint, the Defendants have failed to use
reasonable and appropriate care in the design, manufacture,
labeling, warning, instruction, training, selling, marketing, and
distribution of aqueous film forming foam (AFFF) products
containing synthetic, toxic per- and polyfluoroalkyl substances
collectively known as PFAS. The Defendants' AFFF products are
dangerous to human health because PFAS are highly toxic and
carcinogenic chemicals and can accumulate in the blood and body of
exposed individuals. The Defendants have also failed to warn public
entities and civilian firefighters, including the Decedent, who
they knew would foreseeably come into contact with their AFFF
products. The Decedent used the Defendants' PFAS-containing AFFF
products in their intended manner, without significant change in
the products' condition due to inadequate warning about the
products' danger. The Decedent relied on the Defendants'
instructions as to the proper handling of the products, says the
suit.
As a result of the Defendants' omissions and misconduct, the
Decedent was diagnosed with non-Hodgkin's lymphoma cancer. The
Decedent's diagnosis caused and/or contributed to his death.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and –
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
3M COMPANY: Vanduch Sues Over Exposure to Highly Toxic Chemicals
----------------------------------------------------------------
Justin Vanduch, and other similarly situated v. 3M COMPANY fka
MINNESOTA MINING & MANUFACTURING CO.; BUCKEYE FIRE EQUIPMENT CO.;
CHEMGUARD, INC.; CORTEVA, INC.; DUPONT DE NEMOURS, INC.; DYNAX
CORPORATION; E.I. DUPONT DE NEMOURS & CO.; KIDDE-FENWALL, INC.;
KIDDE FIRE FIGHTING, INC.; KIDDE PLC, INC.; NATIONAL FOAM, INC.;
THE CHEMOURS CO.; THE CHEMOURS COMPANY FC, LLC; TYCO FIRE PRODUCTS,
LP; UTC FIRE & SECURITY AMERICA'S, INC; and DOES 1 to 100,
INCLUSIVE;, Case No. 2:22-cv-01448-RMG (D.S.C., May 5, 2022), is
brought involving highly toxic chemicals which have earned the
designation "the forever chemicals" because they do not breakdown
and their insidious nature allows them to travel through soil and
into groundwater while maintaining their deadly nature for
decades.
This action deals with Aqueous Film Forming Foams ("AFFF") that
were designed, manufactured and sold as firefighting compounds.
AFFF compounding includes Perfluoro octane Sulfonate (commonly
known as "PFOS"), PerfluorooctanoicAcid (commonly known as "PFOA"),
and/or other Per-and Polyfluoroalkyl substances (together, with
PFOS and PFOA, commonly known as "PFAS") which are manmade
organofluorine compounds (in this case commonly referred to as
fluorinated surfactants/fluorocarbon surfactants). The compounds
are designed to lower the surface tension of water so as to create
a firefighting foam to quell/smother (cutting off oxygen), for
example, jet fuel fires.
AFFF is created by mixing fluorine-free hydrocarbon foaming
substances (chemical agents designed for a particular purpose) with
fluorinated surfactants and mixing that with water which creates an
aqueous film, i.e.: Aqueous Film Forming Foams ("AFFF"). The
manufacturing processes involved in this action are asserted to
have used fluorocarbon surfactants which are believed to include
PFOS and PFOA (and/or other per fluorinated compounds known as
"PFC"' are also believed to be in the mix. PFC's are posited to
break down in PFOS and PFOA).
The Plaintiff joined the Army in 1995 and was subsequently assigned
(DoD TDY) to Fort McCoy, WI (2000-2001). At all times relevant,
Plaintiff lived/worked on Post at Fort McCoy using and drinking the
water. Fort McCoy has a PFAS environmental contamination level of
120,000 ppt (EPA max of 70ppt). In 2019, the Plaintiff was
diagnosed with kidney cancer and thyroid disease and commenced
ongoing medical treatments for both inclusive of surgical
interventions via a partial nephrectomy and a full thyroidectomy.
As known by Defendants, both kidney cancer and thyroid disease are
linked to PFAS contamination. The Plaintiff did not discover that
PFAS was a cause of the harm until late Spring 2020, when he saw
internet information, says the complaint.
The Plaintiff was a member of the U.S. Army Reserves, who during
his service was stationed at Fort McCoy, a military installation
identified as being contaminated through use of the toxic chemicals
which are the subject of this action.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promoters, and sellers of
PFAS containing AFFF products or underlying PFAS containing
chemicals used in AFFF production.[BN]
The Plaintiff is represented by:
Jeremy C. Shafer, Esq.
BANNER LEGAL
445 Marine View Avenue, Suite 100
Del Mar, CA 92014
Phone: (760) 479-5404
Email: jshafer@bannerlegal.com
- and -
S. James Boumil, Esq.
BOUMIL LAW OFFICES
120 Fairmount Street
Lowell, MA, 01852
Phone: (978) 458-0507
Email: sjboumil@boumil-law.com
- and -
Konstantine Kyros, Esq.
KYROS LAW
17 Miles Rd.
Hingham, MA 02043
Phone: (800) 934-2921
Email: kon@kyroslaw.com
A2 MILK: Third Class Suit Filed in New Zealand Over Inaccurate Info
-------------------------------------------------------------------
Jamie Gray, writing for NZ Herald, reports that a statement of
claim has been filed in the Auckland High Court against a2 Milk
alleging breaches of the Financial Markets Conduct Act and the Fair
Trading Act, following on from two other similar claims launched in
Australia.
The opt-in class action seeks compensation for eligible a2 Milk
shareholders who allegedly suffered losses as a result of the
significant decline in the value of a2 Milk shares between August
19, 2020 and May 9, 2021.
The solicitors are Thorn Law and the legal action is being funded
by Australian-based CHC Investment Fund III, a subsidiary of Court
House Capital.
The claim is separate from a similar class action being launched in
Australia.
"In summary, the legal action alleges that as a result of a2 Milk
issuing misleading guidance and failing to amend or withdraw that
guidance in a timely manner, shareholders were not given accurate
information about the company's ability to meet its revenue and
margin forecasts," Philip Skelton QC said.
A financial institution has already joined the action "on behalf of
a significant number of clients", representing a substantial
shareholding in a2 Milk, Skelton said.
"The action claims that because of the inaccurate information given
to the market, investors were unable to make informed decisions as
to whether to buy, sell or retain a2 Milk shares; many investors
lost substantial sums as a result of acting on that misleading
information.
"This legal case highlights the pivotal role a company has in
managing shareholder expectations around the company's ability to
realistically achieve its financial projections.
"Unless material information is disclosed and forecasts amended to
reflect updated assessments, it is reasonable for shareholders,
especially those who have invested in a publicly listed company
like a2 Milk, to assume that existing forecasts remain valid,"
Skelton said.
Early this month, Australian law firms Slater and Gordon and Shine
Lawyers said they had joined forces in their class action against
dual-listed a2 Milk.
The Australian firms had previously taken separate actions against
the former high flyer over its earnings disclosures made in 2020
and 2021.
The Australian claim will be considered at a court hearing on
May 25.
In a statement to the NZX on May 18, a2 Milk said: "The company
considers that it has at all times complied with its disclosure
obligations, denies any liability and will vigorously defend the
proceedings."
Shares in a2 Milk, which peaked at $21.51 in July 2020, traded on
the NZX on May 18 at $4.57, down one cent.
In its claim -- lodged last year -- Slater and Gordon accused a2 of
breaching continuous disclosure rules in posting four downgrades on
September 28 and December 18 last year, and February 25 and May 10
of this year.
On May 10 last year, a2 Milk flagged a review of its key China
business and a blowout of more than $100 million in provisions for
old stock.
The cut to its outlook resulted in a2 Milk expecting full-year
sales of $1.2 billion to $1.25b and a group ebitda margin of 11-12
per cent.
This compared to August 19, 2020, guidance for strong sales growth
and an ebitda margin of 30-31 per cent.
Slater and Gordon said a2 Milk "was or ought to have been" aware"
that the full-year 2021 guidance did not adequately consider
factors likely to impact the company's financial performance.
This included a2 Milk's attempts to boost sales by pushing
English-label infant formula tins through the cross-border
e-commerce channel, with discounting consequences that would in
turn negatively impact sales in the unofficial daigou trade channel
to China.
It was also alleged that a2 Milk's sales in the cross border
e-commerce channel would in turn be impeded by the disruption to
the daigou/reseller channel and the loss of associated marketing
activity to stimulate consumer demand.
Downgrades by a2 during the August 2020 to May 2021 claim period
caught the market by surprise and revealed that a2 had been facing
systemic and structural issues with its distribution networks at an
early stage of the financial year, Slater and Gordon said. [GN]
ACTIVE INTEREST: Taylor Files Suit in W.D. Michigan
---------------------------------------------------
A class action lawsuit has been filed against Active Interest
Media, Inc. The case is styled as Jason Taylor, individually and on
behalf of all others similarly situated v. Active Interest Media,
Inc., Case No. 1:22-cv-00447-PLM-SJB (W.D. Mich., May 17, 2022).
The nature of suit is stated as Other Fraud.
Active Interest Media (AIM) -- https://www.aimmedia.com/ --
produces leading consumer and trade events, websites, magazines,
and films/TV shows.[BN]
The Plaintiff is represented by:
E. Powell Miller, Esq.
MILLER LAW FIRM PC
950 W University Dr., Ste. 300
Rochester, MI 48307
Phone: (248) 267-1200
Email: epm@millerlawpc.com
ACV AUCTIONS: Faces Antitrust Suit in NY Court
----------------------------------------------
ACV Auctions 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 March 19, 2021, a putative
class action was filed against ACV Auctions, Inc., et al. in the
U.S. District Court for the Western District of New York, alleging
violations of the federal antitrust laws and New York State law
related to an alleged conspiracy to set bids on its marketplace
from transactions that originated from one seller.
The complaint seeks statutory damages under such laws and other
relief. In January 2022, the Court heard arguments on the motion to
dismiss that the defendants had previously filed and dismissed the
federal claims with leave for the plaintiff to amend their
complaint.
ACV Auctions Inc. provides a digital wholesale auction marketplace
to facilitate business-to-business used vehicle sales between a
selling dealership and a buying dealership.
ADESSO INC: Calcano Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Adesso, Inc. The case
is styled as Marcos Calcano, on behalf of himself and all other
persons similarly situated v. Adesso, Inc., Case No. 1:22-cv-04012
(S.D.N.Y., May 17, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Adesso, Inc. -- https://www.adesso.com/ -- is a designer and
manufacturer of consumer electronics. The Company offers keyboards,
headsets, printer, wireless charger, touch pads, and
microphones.[BN]
The Plaintiff is represented by:
Dana Lauren Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (917) 796-7437
Fax: (212) 982-6284
Email: danalgottlieb@aol.com
ALLEGIANCE RETAIL: Hanyzkiewicz ADA Suit Transferred to S.D.N.Y.
----------------------------------------------------------------
The case styled as Marta Hanyzkiewicz, on behalf of herself and all
others similarly situated v. Allegiance Retail Services, LLC, Case
No. 1:22-cv-00909 was transferred from the U.S. District Court for
the District of Eastern District of New York, to the U.S. District
Court for the Southern District of New York on May 17, 2022.
The District Court Clerk assigned Case No. 1:22-cv-04051-UA to the
proceeding.
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Allegiance Retail Services, LLC --
https://www.allegianceretailservices.com/ -- is a retailer owned
co-op that is headquartered in Iselin, New Jersey.[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
The Defendant is represented by:
Colby Berman, Esq.
Peter T. Shapiro, Esq.
LEWIS BRISBOIS BISGAARD & SMITH
77 Water Street, Suite 2100
New York, NY 10005
Phone: (646) 989-9412
Email: colby.berman@lewisbrisbois.com
peter.Shapiro@lewisbrisbois.com
ALLEN COUNTY, IN: Addresses Jail Issues After Inmate Suit Ruling
----------------------------------------------------------------
Julian Teekaram, writing for Fort Wayne's NBC, reports that Allen
County and Sheriff David Gladieux have met a May 16 deadline and
filed a response to a federal court order that calls for major,
immediate changes at the local jail.
The county's plan -- drawn up on a 45-day deadline -- aims to
address issues that include overcrowding, low staffing levels and
policies and practices that Judge Damon Leichty found unacceptable
in a late March ruling on a suit filed by a former inmate. The ACLU
represented the inmate and the suit was given class action status.
In its filing, Allen County notes that a long-term solution will
require new construction "to address the Constitutional
Deficiencies" of the current jail. Proposals under consideration
include a complete relocation of inmates to a new 1,500-bed
facility or, alternately, "new construction for certain
classifications of prisoners while maintaining some or all of the
existing facility for other(s)."
The response notes preliminary steps that have been taken in that
regard. Challenges may include identifying and purchasing up to 70
acres of land for a new jail, environmental considerations and
other concerns.
The County lays out a timeline that could see construction
completed by mid-2026.
Short-term plans include steps to limit what is now an overflow of
inmates through transfers or the outright release of some
individuals being held at the downtown Fort Wayne facility. The
filing proposes:
(T)he Sheriff or his designee shall also ask the judges to release
a sufficient number of detainees to reduce the Jail's population to
731 or less, subject to attempts to transfer to other facilities.
The parties understand that that the decision to release any
detainee is solely within the discretion of the judiciary.
Officials pledge to add outdoor recreation time of at least three
hours a week; to renovate space for indoor recreational activities;
and to "continue to take steps to actively recruit candidates" for
positions that have gone unfilled. The document notes that hiring
has been particularly difficult "in the current environment."
As of late April, 123 people worked at the jail, but 21 positions
remained open.
A "recruitment plan" attached to the response focuses on the use of
job fairs, community events (including the Fort Wayne Air Show and
TinCaps baseball games) and an advertising campaign to beef up
staffing. [GN]
ALTER ECO AMERICAS: Chalas Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Alter Eco Americas
Inc. The case is styled as Ana Chalas, individually, and on behalf
of all others similarly situated v. Alter Eco Americas Inc., Case
No. 1:22-cv-03963 (S.D.N.Y., May 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Alter Eco, Inc. -- https://www.alterecofoods.com/ -- imports and
distributes a range of fair trade food products through mass retail
chains in the United States.[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
AMAZON.COM INC: Faces Discrimination Class Action in Washington
---------------------------------------------------------------
Laurel Kalser, writing for HRDive, reports that Amazon allegedly
discriminated against employees who served in the U.S. armed
services or National Guard by assessing them unpaid time off when
they took military leave and then firing them when their military
leave caused a negative balance in their UTO accounts, a former
Amazon employee claimed in a class-action lawsuit (Mahone v.
Amazon.com, Inc., No. 22-cv-594 (W.D. Wash. 5/4/2022)).
The plaintiff was a member of the Alabama Army National Guard, the
lawsuit stated. She worked for Amazon from mid-July to mid-October
2020. During this time, she regularly worked three 12-hour shifts a
week, from Thursday afternoons to Sunday mornings. She also took
various military leaves to fulfill her obligations with the
National Guard. In mid-October 2020, the plaintiff was required to
report for weekend drills as part of her military service. She
timely notified Amazon and took military leave without pay starting
that Thursday, according to the court filing. But on Sunday, her
last day of the drills, she allegedly received an email from Amazon
telling her she was fired because her UTO balance was 36 hours,
constituting the three shifts she missed because of the drills.
The plaintiff sued Amazon for violating the Uniformed Services
Employment and Reemployment Rights Act. Amazon allegedly violated
the statute by denying employees in the uniformed services the
right to retain their jobs while performing military duties. Amazon
declined to provide a statement. "Given that this matter was
recently filed, we're not in a position to comment on the case at
this time," the company told HR Dive in an email exchange.
Dive Insight:
USERRA establishes certain rights and benefits for employees in
civilian jobs who serve, have served or will serve in the U.S.
armed forces, National Guard or Reserves, according to the U.S.
Department of Labor (DOL) regulations. Generally, the statute
prohibits employers from refusing to hire or denying reemployment,
employment retention, promotion or any employment benefit to an
employee or job applicant on the basis of that person's military
service.
Virtually every employer, regardless of size, must comply with
USERRA.
Employees who claim they've been discriminated against based on
their military status, such as being fired because they took
military leave, must show their military status was a "motivating
factor" for the adverse action, the regulations state. Employers
can defeat the claim by establishing that they would have taken the
same action regardless of the employee's military status.
For example, in 2010, BWXT, a nuclear and technology company,
defeated a fired manager's USERRA claim based on this defense. The
manager was a member of the Naval Reserves. Prior to his
termination, he had complained to BWXT about the way its payroll
system accounted for his unpaid military leave. A few months later,
the company learned he was using his work computer for Naval
Reserve business. It eventually discovered more than 3,000
Navy-related documents he stored on the BWXT server.
After he was fired, he sued the company for violating USERRA. The
6th U.S. Circuit Court of Appeals upheld pretrial judgment for
BWXT. It said the record showed that BWXT could reasonably believe
he violated its computer use policy and also fired an employee not
in military service because she, too, violated the policy.
As for paid versus unpaid leave, USERRA requires that employees
taking military leave receive the same "rights and benefits" as
employees receive for comparable, nonmilitary leave. Last year, the
7th Circuit held that the term "rights and benefits" includes paid
leave, and employers must provide short-term paid leave to military
reservists to the same extent provided for other comparable leaves
of absence, such as jury duty. Since then, the 3rd Circuit has held
the same.
With regard to reemployment, USERRA generally gives employees the
right to return to their former jobs, or a comparable job, with the
same benefits, following their military service if they meet
certain criteria, including that they have not served more than
five cumulative years in military service while working for that
employer.
In 2019, the U.S. Department of Justice sued a North Carolina
county for failing to reemploy a dean of students to an equivalent
position when he returned from active duty. The DOJ claimed the
county eliminated his job while he was away and offered to reemploy
him as a physical education teacher, despite the availability of
other administrative positions. DOJ settled the suit four months
later when the county agreed to reinstate the employee as dean of
students with back pay and pension benefits.
Keep in mind: USERRA requires employees to give advance notice of
their need to take military leave. But employees don't need the
employer's permission to take the leave, and they don't have to
fill out a standardized form for HR, a DOL fact sheet explains.
Employers also can't require an employee to adjust the timing of a
military leave if they find the timing inconvenient. [GN]
AMAZON.COM SERVICES: Seeks to Stay Class Certification Briefing
---------------------------------------------------------------
In the class action lawsuit captioned as DAN HAMILTON, Individually
and on behalf of all others similarly situated, v. AMAZON.COM
SERVICES, LLC, Case No. 1:22-cv-00434-PAB-STV (D. Colo.), the
Defendant asks the Court to enter an order granting grant its
motion and staying briefing on the Class Certification Motion until
21 days after the Court renders its decision on the Defendant's
Motion to Dismiss.
Amazon Services offers many of the Web service platforms that are
Amazon offers.
A copy of the Defendant's motion dated May 3, 2022 is available
from PacerMonitor.com at https://bit.ly/3yQjkrx at no extra
charge.[CC]
The Plaintiff is represented by:
David H. Miller, Esq.
Victoria E. Guzman, Esq.
THE SAWAYA & MILLER LAW FIRM
1600 Ogden Street
Denver, CO 80218
Telephone: (303) 551-7667
E-mail: dhmiller@sawayalaw.com
vguzman@sawayalaw.com
The Defendant is represented by:
Jennifer S. Harpole, Esq.
Sarah K. Watt, Esq.
LITTLER MENDELSON, P.C.
1900 Sixteenth Street, Suite 800
Denver, CO 80202
Telephone: (303) 629-6200
Facsimile: (303) 629-0200
E-mail; jharpole@littler.com
swatt@littler.com
AMERICAN SECURITY: Underpays Security Guards, Arenas Suit Alleges
-----------------------------------------------------------------
LOURDES NINOSKA ARENAS PEREZ, individually and on behalf of all
others similarly situated, Plaintiff v. AMERICAN SECURITY FORCE,
INC.; ALBERT CARL WILLIAMS; and DOES 1 to 25, inclusive,
Defendants, Case No. 22STCV16168 (Cal. Super., Los Angeles Cty.,
May 16, 2022) is a class action against the Defendants for failure
to compensate the Plaintiff and similarly situated security guards
appropriate minimum wages for all hours worked in violation of
California Labor Code's Private Attorneys General Act.
The Plaintiff has been employed by the Defendants as a security
guard since 2014.
American Security Force, Inc. is a provider of security services
based in California. [BN]
The Plaintiff is represented by:
Harout Messrelian, Esq.
MESSRELIAN LAW INC.
500 N. Central Ave., Suite 840
Glendale, CA 91203
Telephone: (818) 484-6531
Facsimile: (818)956-1983
E-mail: hm@messrelianlaw.com
APPLE INC: Ninth Cir. Affirms Dismissal of Taleshpour Class Suit
----------------------------------------------------------------
In the case, MAHAN TALESHPOUR, et al., Plaintiffs-Appellants v.
APPLE, INC., Defendant-Appellee, Case No. 21-16282 (9th Cir.), the
U.S. Court of Appeals for the Ninth Circuit affirms the district
court's dismissal of the Plaintiffs' putative class action.
The Plaintiffs appeal from the district court's dismissal of their
putative class action asserting statutory and common law claims
against Apple under the laws of California and other states based
on an alleged defect that, sometime after the warranty expires,
causes MacBook Pro laptops' built-in displays to malfunction and
eventually stop working altogether.
In Wilson v. Hewlett-Packard Co., 668 F.3d 1136 (9th Cir. 2012),
the Ninth Circuit held that a plaintiff asserting a claim of fraud
by omission relating to a defect that manifests after the
applicable warranty has expired must allege either physical injury
or a "safety concern" posed by the defect. California federal
courts have generally interpreted Daugherty as holding that a
manufacturer's duty to consumers is limited to its warranty
obligations absent either an affirmative misrepresentation or a
safety issue.
The Plaintiffs ask the Ninth Circuit to revisit Wilson, arguing
that its "safety hazard" holding is no longer good law in view of
Hodsdon v. Mars, Inc., 891 F.3d 857 (9th Cir. 2018).
The Ninth Circuit holds that the Plaintiffs' reliance on Hodsdon
fails for two reasons. First, "a three-judge panel may not overrule
a prior decision of the court" unless that prior decision is
effectively overruled by a state or federal court "of last resort."
Thus, Wilson is binding on the Ninth Circuit, regardless of how we
may read Hodsdon. Second, Hodsdon is distinguishable -- it involved
candy bar wrappers, rather than a product defect or a warranty
issue, and the court expressly declined to address circuit
precedent on the duty to disclose because it was unnecessary to do
so. Thus, the Plaintiffs' reliance on Hodsdon is unavailing even
without regard to Wilson. Then Ninth Circuit therefore affirms the
district court's dismissal of the California Consumer Legal
Remedies Act (CLRA)claims.
The Plaintiffs' claim that Apple engaged in "fraudulent" business
acts under the California Unfair Competition law (UCL), Cal. Bus. &
Prof. Code Section 17200, fails for similar reasons. "Historically,
the term 'fraudulent,' as used in the UCL, has required only a
showing that members of the public are likely to be deceived."
Significantly, however, "the Ninth Circuit cannot agree that a
failure to disclose a fact one has no affirmative duty to disclose
is 'likely to deceive' anyone within the meaning of the UCL."
Because it affirms the district court's finding that Apple had no
duty to disclose the alleged defect, the Ninth Circuit must also
affirm its rejection of the "fraudulent" prong UCL claim.
For UCL purposes, "an act or practice is unfair if the consumer
injury is substantial, is not outweighed by any countervailing
benefits to consumers or to competition, and is not an injury the
consumers themselves could reasonably have avoided." However, "the
failure to disclose a defect that might, or might not, shorten the
effective life span of a part that functions precisely as warranted
throughout the term of its express warranty cannot be characterized
as causing a substantial injury to consumers, and accordingly does
not constitute an unfair practice under the UCL." All of the
Plaintiffs' allegations refer to problems experienced well after
their laptops' warranties expired, so the Ninth Circuit affirms the
district court's dismissal of the Plaintiffs' UCL "unfairness"
claim.
By proscribing 'any unlawful' business practice, the UCL borrows
violations of other laws and treats them as unlawful practices that
the UCL makes independently actionable." The Plaintiffs' theory
that Apple's conduct was "unlawful" for UCL purposes is premised
solely on their theory that Apple violated the CLRA, so the Ninth
Circuit affirms the district court's dismissal of their UCL
"unlawful" claim for the reasons it stated.
The Ninth Circuit affirms the district court's dismissal of the
Plaintiffs' California commonlaw fraudulent concealment claim
because the parties have treated it as part and parcel of the
Plaintiffs' CLRA and UCL claims. Moreover, at oral argument, the
Plaintiffs' counsel conceded that the common law claim rises or
falls with the statutory claims because the causes of action are
"intertwined."
Finally, the Ninth Circuit also affirms the district court's
dismissal of the Plaintiffs' claims under the deceptive trade
practice statutes in Washington, Florida, New Jersey, Michigan,
Alaska, Missouri, Massachusetts, and Texas. At oral argument, the
counsel for the Plaintiffs conceded that all these claims depend on
Apple having a duty to disclose, such that if there is no such duty
under California law, these claims similarly fail. As explained,
the Ninth Circuit holds that Apple had no duty to disclose the
alleged defect at issue.
A full-text copy of the Court's May 10, 2022 Memorandum is
available at https://tinyurl.com/yyzzb8x4 from Leagle.com.
APPLUS TECHNOLOGIES: Kelley Wage-and-Hour Suit Goes to C.D. Cal.
----------------------------------------------------------------
The case styled JOHN KELLEY, individually and on behalf of all
others similarly situated v. APPLUS TECHNOLOGIES, INC.; APPLUS
IDIADA KARCO ENGINEERING, LLC; and DOES 1 through 100, inclusive,
Case No. CIVSB2204889, was removed from the Superior Court of the
State of California for the County of San Bernardino to the U.S.
District Court for the Central District of California on May 13,
2022.
The Clerk of Court for the Central District of California assigned
Case No. 5:22-cv-00813 to the proceeding.
The case arises from the Defendants' alleged improper inquiries
during the hiring process under the Consumer Credit Reporting
Agencies Act; wage and hour violations for failure to pay overtime
and minimum wages, failure to provide meal and rest periods,
waiting time penalties, wage statement violations, and failure to
reimburse business expenses; and violation of the Unfair
Competition Law.
Applus Technologies, Inc. is a provider of technological solutions
in the vehicle-emissions-testing and technical-vehicle-inspection
fields, headquartered in Wisconsin.
Applus Idiada Karco Engineering, LLC is an engineering company
based in California. [BN]
The Defendant is represented by:
Amy R. Patton, Esq.
Nicole R. Kardassakis, Esq.
PAYNE & FEARS LLP
4 Park Plaza, Suite 1100
Irvine, CA 92614
Telephone: (949) 851-1100
Facsimile: (949) 851-1212
E-mail: arp@paynefears.com
nrk@paynefears.com
ARCARE: White Files Suit in E.D. Arkansas
-----------------------------------------
A class action lawsuit has been filed against ARcare. The case is
styled as Jessica White, on behalf of herself and all others
similarly situated v. ARcare, Case No. 4:22-cv-00454-KGB (E.D.
Ark., May 16, 2022).
The nature of suit is stated as Other Personal Property for
Personal Injury.
ARcare -- https://www.arcare.net/ -- provides primary care for the
whole family to meet all healthcare needs in Arkansas.[BN]
The Plaintiff is represented by:
Christopher D. Jennings, Esq.
Nathan Irving Reiter, III, Esq.
JOHNSON FIRM
610 President Clinton Avenue, Suite 300
Little Rock, AR 72201
Phone: (501) 372-1300
Email: chris@yourattorney.com
- and -
Francesca Kester, Esq.
Jean S. Martin, Esq.
MORGAN & MORGAN, P.A.
One Tampa City Center
201 North Franklin Street, Suite 700
Tampa, FL 33602
Phone: (813) 559-4908
ARLO TECHNOLOGIES: Shareholder Suit in California Dismissed
-----------------------------------------------------------
Arlo Technologies, Inc. disclosed in its Form 10-Q Report for the
period ended April 3, 2022, filed with the Securities and Exchange
Commission on May 11, 2022, that in March 25, 2021, a California
court entered an order and final judgment approving a settlement
and dismissing with prejudice all claims of a securities class
action complaint.
Beginning on December 11, 2018, purported stockholders of Arlo
Technologies, Inc. filed six putative securities class action
complaints in the Superior Court of California, County of Santa
Clara, and one complaint in the U.S. District Court for the
Northern District of California against the company and certain of
its executives and directors. Some of these actions also name as
defendants the underwriters in the company's initial public
offering.
The actions pending in state court are "Aversa v. Arlo
Technologies, Inc., et al.," Case No. 18CV339231 (December 11,
2018, "Pham v. Arlo Technologies, Inc. et al.," Case No. 19CV340741
(January 9, 2019), "Patel v. Arlo Technologies, Inc.," Case No.
19CV340758 (January 10, 2019), Perros v. NetGear, Inc., Case No.
19CV342071, (February 1, 2019), "Vardanian v. Arlo Technologies,
Inc.," Case No. 19CV342318, (February 8, 2019) and "Hill v. Arlo
Technologies, Inc. et al.," Case No. 19CV343033 (February 22,
2019).
On April 26, 2019, the state court consolidated these actions as
"In re Arlo Technologies, Inc. Shareholder Litigation," Case No.
18CV339231. The action in federal court is "Wong v. Arlo
Technologies, Inc. et al.," Case No. 19-CV-00372.
The plaintiffs in the State Action filed a consolidated complaint
on May 1, 2019. The plaintiffs allege that the Company failed to
adequately disclose quality control problems and adverse sales
trends ahead of its IPO, violating the Securities Act of 1933. The
complaint seeks unspecified monetary damages and other relief on
behalf of investors who purchased company common stock issued
pursuant and/or traceable to the IPO. On June 21, 2019, the court
stayed the State Action pending resolution of the federal action,
given the substantial overlap between the claims.
In the federal action, the court appointed a shareholder named
Matis Nayman as lead plaintiff. On June 7, 2019, plaintiff filed an
amended complaint. Lead Plaintiff alleges violations of the
Securities Act and the Securities Exchange Act of 1934, as amended,
based on alleged materially false and misleading statements about
the company's sales trends and products.
In the amended complaint, lead plaintiff sought to represent a
class of persons who purchased or otherwise acquired the company's
common stock during the period between August 3, 2018 through
December 3, 2018 and/or (ii) pursuant to or traceable to the IPO.
Lead plaintiff seeks class certification, an award of unspecified
damages, an award of costs and expenses, including attorneys’
fees, and other further relief as the court may deem just and
proper.
On August 6, 2019, defendants filed a motion to dismiss. The
federal court granted that motion, and lead plaintiff filed a
second amended complaint. On June 12, 2020, lead plaintiff filed an
unopposed motion for preliminary approval of a class action
settlement for $1.25 million, which was also the amount that the
company had accrued for loss contingency. On September 24, 2020,
the federal court entered an order approving the settlement.
In February 5, 2021, lead plaintiff filed a motion for final
approval of the settlement. In advance of the final approval
hearing, three of the named plaintiffs in the State Action
requested exclusion from the settlement. The court held a final
approval hearing on March 11, 2021, and, on March 25, 2021, entered
an order and final judgment approving the settlement and, among
other things, dismissing with prejudice all claims of lead
plaintiff and the class.
Arlo Technologies, Inc. is an intelligent cloud infrastructure and
mobile app with a variety of smart connected devices that transform
the way people experience the connected lifestyle.
ASHFORD INC: Securities Class Suit Ongoing in California
--------------------------------------------------------
Ashford Inc. disclosed in its Form 10-Q Report for the fiscal year
ended March 31, 2022, filed with the Securities and Exchange
Commission on May 11, 2022, that is it facing a class action
lawsuit filed in December 20, 2016 against one of the company's
subsidiaries in the Superior Court of the State of California in
and for the County of Contra Costa alleging violations of certain
California employment laws.
The court has entered an order granting class certification with
respect to a statewide class of non-exempt employees who were
allegedly deprived of rest breaks as a result of the subsidiary's
previous written policy requiring employees to stay on premises
during rest breaks and a derivative class of non-exempt former
employees who were not paid for allegedly missed breaks upon
separation from employment.
Ashford Inc. provides products and services primarily to clients in
the hospitality industry, including Ashford Hospitality Trust, Inc.
and Braemar Hotels & Resorts Inc.
ASHFORD MARTIN: Underpays Nursing Assistants, Van Camp Alleges
--------------------------------------------------------------
CHIARA VAN CAMP, individually and on behalf of all others similarly
situated, Plaintiff v. ASHFORD MARTIN CORPORATION, Defendant, Case
No. 154254/2022 (N.Y. Sup. Ct., May 17, 2022) is a class action
against the Defendant for its failure to pay overtime wages and
agreed minimum wages in violation of the Fair Labor Standards Act
of 1938 and the Wisconsin's Wage Payment and Collection Laws.
The Plaintiff worked as a certified nursing assistant at the
Defendant's facility in Wisconsin from May 4, 2021 until March 29,
2022.
Ashford Martin Corporation is a provider of senior housing
management for assisted living communities and memory care
facilities, with its principal office address at 1500 North
Casaloma Drive, Suite 300, Appleton, Wisconsin. [BN]
The Plaintiff is represented by:
James A. Walcheske, Esq.
Scott S. Luzi, Esq.
David M. Potteiger, Esq.
WALCHESKE & LUZI, LLC
235 N. Executive Drive, Suite 240
Brookfield, WI 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
E-mail: jwalcheske@walcheskeluzi.com
sluzi@walcheskeluzi.com
dpotteiger@walcheskeluzi.com
AUGUSTA SWIM: Feliz Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Augusta Swim Supply,
Inc. The case is styled as Roberta Feliz, individually, and on
behalf of all others similarly situated v. Augusta Swim Supply,
Inc., Case No. 1:22-cv-03975 (S.D.N.Y., May 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Augusta Swim Supply -- https://www.augustaswimsupply.com/ -- is the
#1 swim supply store in the southeast providing quality name brands
including Speedo, Tyr, Nike, Dolphin 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
AXSOME THERAPEUTICS: Bragar Eagel Reminds of July 12 Deadline
-------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized stockholder
rights law firm, on May 18 disclosed that a class action lawsuit
has been filed against Axsome Therapeutics, Inc. ("Axsome" or the
"Company") (NASDAQ: AXSM) in the United States District Court for
the Southern District of New York on behalf of all persons and
entities who purchased or otherwise acquired Axsome securities
between December 30, 2019 and April 22, 2022, both dates inclusive
(the "Class Period"). Investors have until July 12, 2022 to apply
to the Court to be appointed as lead plaintiff in the lawsuit.
Axsome is a biopharmaceutical company that engages in the
development of novel therapies for central nervous system disorders
in the United States. 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.
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.
The complaint alleges that, throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operations, and prospects. Specifically,
Defendants made false and/or misleading statements and/or failed to
disclose that: (i) Axsome's CMC practices were deficient with
respect to AXS-07 and its manufacturing process; (ii) as a result,
Axsome was unlikely to submit the AXS-07 NDA on its initially
represented timeline; (iii) the foregoing CMC issues remained
unresolved at the time that the FDA reviewed the AXS-07 NDA; (iv)
accordingly, the FDA was unlikely to approve the AXS-07 NDA; (v) as
a result of all the foregoing, Axsome had overstated AXS-07's
regulatory and commercial prospects; and (vi) as a result, the
Company's public statements were materially false and misleading at
all relevant times.
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 a filing with the U.S.
Securities and Exchange Commission that, "[o]n 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 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, "[t]he 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."
If you purchased or otherwise acquired Axsome shares and suffered a
loss, are a long-term stockholder, have information, would like to
learn more about these claims, or have any questions concerning
this announcement or your rights or interests with respect to these
matters, please contact Brandon Walker or Melissa Fortunato by
email at investigations@bespc.com, telephone at (212) 355-4648, or
by filling out this contact form. There is no cost or obligation to
you.
About Bragar Eagel & Squire, P.C.:
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes.
Contacts
Bragar Eagel & Squire, P.C.
Brandon Walker, Esq.
Melissa Fortunato, Esq.
(212) 355-4648
investigations@bespc.com
www.bespc.com [GN]
BANK OF AMERICA: E.D. New York Dismisses Gibbs RICO/GBL Suit
------------------------------------------------------------
Judge Rachel P. Kovner of the U.S. District Court for the Eastern
District of New York dismisses the case, M. EUGENE GIBBS, Plaintiff
v. BANK OF AMERICA, N.A.; NATIONSTAR D/B/A MR COOPER; BARBARA
GIBBS; UNITED STATES: FREDDIE MAC; FEDERAL HOUSING FINANCE AGENCY
(FHFA); JUDGE MICHAEL G. NETTLES; ALAN M. WILSON, SC AG; CHIEF
JUDGE WENDY L. HAGENAU; CYNTHIA R. EADON; McGUIRE WOODS, LLP; SCOTT
AND CORLEY, P.A; WILLIAM 'TOLL" COSBY; PETER STERN, ESQ.; MICHAEL
ROSENFELD ART GALLERY; SMITHSONIAN INSTITUTION; BREON PEACE; NANCY
J. WHALEY; MERRICK B. GARLAND; CONSUMER FINANCIAL PROTECTION
BUREAU; NAACP; CONGRESSIONAL BLACK CAUCUS, U.S. HOUSE OF
REPRESENTATIVES; AL SHARPTON; ROD ROSENSTEIN [USA]; and DOES,
1-100, Defendants, Case No. 22-CV-00011 (RPK) (LB) (E.D.N.Y.).
I. Background
Pro se Plaintiff Gibbs brings civil claims under the Racketeer
Influenced and Corrupt Organizations Act ("RICO") and New York
General Business Law ("GBL") Section 349, alleging various
conspiracies. Mr. Gibbs' wife brings similar claims as
crossclaims.
Mr. Gibbs has filed a complaint and an amended complaint that
purports to incorporate his original complaint in its entirety. Mr.
Gibbs first alleges a conspiracy to undermine the Home Affordable
Modification Program ("HAMP") by Bank of America, Nationstar
Mortgage, and various Doe defendants (collectively, the "HAMP
Defendants"). According to him, these Defendants sought to subvert
the HAMP program by falsely denying that they had received
documents from homeowners and by issuing false notices claiming
that homeowners had failed to submit required documentation.
According to Mr. Gibbs, Bank of America's action was part of a
larger conspiracy between the HAMP Defendants' attorneys, McGuire
Woods, LLP, South Carolina's Attorney General, Alan Wilson, Judge
Michael Nettles, Scott and Corley, P.A, and the HAMP Defendants to
bribe the Consumer Financial Protection Bureau ("CFPB"), the
Federal Housing Finance Agency ("FHFA"), Fannie Mae, and Freddie
Mac to conceal Bank of America's sale of mortgage notes.
Mr. Gibbs alleges that because of the foreclosure action, his wife
was forced to file bankruptcy. He also alleges that the HAMP
Defendants and McGuire Woods "acted in concert" with Chief
Bankruptcy Judge Wendy Hagenau of the Bankruptcy Court of the
Northern District of Georgia and her Courtroom Deputy, Cynthia R.
Eadon, to ensure that Mr. Gibbs and his wife lost the bankruptcy
action.
Next, Mr. Gibbs alleges that Attorney General Wilson conspired with
attorney Peter Stern, Bill Cosby, the Smithsonian, and the Michael
Rosenfeld Art Gallery (collectively, the "Art Defendants") to steal
works of art by black artists. He alleges that the Art Defendants
conspired to steal art from the family of William H. Johnson,
Gibbs's former client. He further asserts that the Smithsonian
received 2,000 pieces of the stolen artwork and concealed the fact
that the artwork was stolen.
Mr. Gibbs also alleges that the Reverend Al Sharpton, the National
Association for the Advancement of Colored People ("NAACP"), and
the Congressional Black Causes of the United States House of
Representatives were bribed to remain silent about this theft, as
well as about a "pedophilia ring."
Finally, Mr. Gibbs claims that the Art Defendants conspired with
Rod Rosenstein, Attorney General Wilson, Judge Nettles, the Justice
Department, US Attorney Breon Peace, and numerous John Doe FBI
agents to have Mr. Gibbs arrested for a crime that never occurred.
This appears to be a reference to Mr. Gibbs' conviction for mailing
threatening communications, in violation of 18 U.S.C. Section 876.
Mr. Gibbs also alleges that those defendants conspired to transport
Mr. Gibbs's medical documents from Connecticut to South Carolina.
He suggests that, due to the actions of defendants, he was
disbarred from the practice of law in South Carolina.
Based on the foregoing allegations, Mr. Gibbs appears to assert
RICO claims against all the Defendants, as well as a GBL claim
against the Michael Rosenfeld Art Gallery. He seeks to have the
case declared a class action, and requests damages, injunctive
relief, and declaratory relief. Mr. Gibbs has also filed separate
motions for a temporary restraining order, a preliminary
injunction, and a declaratory judgment seeking substantially the
same remedies.
Mr. Gibbs also named his wife, Barbara Gibbs, as a Defendant, and
suggests that she is also liable for his RICO claim. Ms. Gibbs has
filed a crossclaim against Bank of America and McGuire Woods LLP,
incorporating by reference the claims Mr. Gibbs raised in his
complaint and amended complaint. Bank of America, McGuire Woods
LLP, Michael G. Nettles, and Alan M. Wilson have filed motions to
dismiss.
II. Discussion
Mr. Gibbs's amended complaint is dismissed, as are Ms. Gibbs's
crossclaims, Judge Kovner rules. First, she holds that their RICO
claims against Bank of America and Nationstar are barred by res
judicata and collateral estoppel. She finds that Mr. and Ms. Gibbs'
RICO claims against Bank of America and Nationstar arise from the
same transactions as their claims against those companies in the
District of Colorado and District of Maryland. And these RICO
claims were raised before, in those prior suits. Accordingly, these
claims are barred.
Judge Kovner finds that the conditions for collateral estoppel are
met with respect to Mr. and Ms. Gibbs' RICO claims relating to the
HAMP program. Because they already had an opportunity to fully and
fairly litigate these issues, and a final judgment was entered
against them, they are collaterally estopped from relitigating
these claims.
Second, Judge Kovner holds that Mr. Gibbs' claims relating to the
theft of artwork, his disbarment, and his arrest are barred by
collateral estoppel. She finds that Mr. Gibbs already litigated his
RICO claims arising out of the alleged stolen artwork, his criminal
prosecution, and his disbarment in the Middle District of Florida.
The court dismissed these claims with prejudice. Mr. Gibbs tried to
relitigate the stolen artwork issue again several years later, in a
suit brought in the Eastern District of Pennsylvania. He remains
collaterally estopped from re-litigating these claims because he
already had a full and fair opportunity to litigate them in the
Middle District of Florida, which found his claims lacking.
Finally, the remainder of Mr. Gibbs' claims are frivolous, and Mr.
Gibbs is advised that he may be subject to sanctions if he
continues filing similar claims. Judge Kovner holds that although
he spends nearly two-hundred pages alleging various RICO
conspiracies, Mr. Gibbs alleges no facts establishing how the
government defendants joined the criminal enterprises; when the
conspiracies began; what roles each of the alleged co-conspirators
played; how precisely the conspiracies operated; or how he was
negatively impacted by these activities. These claims are therefore
frivolous. Mr. Gibbs is informed that the Court will not tolerate
repetitive, frivolous and vexatious litigation and that he may be
subject to a filing injunction in the Court if he continues to file
similar actions.
III. Conclusion
Judge Kovner concludes that because the defects in Mr. Gibbs's
claims (and his wife's crossclaims) are "substantive" and cannot be
cured with "better pleading," leave to amend the complaint is
denied. Mr. Gibbs' motions for a temporary restraining order, a
preliminary injunction, and a declaratory judgment are denied as
moot. The Clerk of Court is directed to enter judgment dismissing
the action.
Although Mr. Gibbs paid the filing fee to bring the action, Judge
Kovner certifies pursuant to 28 U.S.C. Section 1915(a)(3) that any
in forma pauperis appeal from her present Order would not be taken
in good faith.
A full-text copy of the Court's May 10, 2022 Memorandum & Order is
available at https://tinyurl.com/23abhek2 from Leagle.com.
BANK OF AMERICA: Mahoney Sues Over Blind-Inaccessible Website
-------------------------------------------------------------
John Mahoney, on behalf of himself and all others similarly
situated v. BANK OF AMERICA CORPORATION, Case No.
2:22-cv-01735-NIQA (E.D. Pa., May 5, 2022), is brought against the
Defendant to enforce Title III of the Americans with Disabilities
Act.
By failing to make its Website available in a manner compatible
with computer screen reader programs, the Defendant deprives blind
and visually-impaired individuals the benefits of its goods,
services, facilities, privileges, advantages, or accommodation of
its places of public accommodation--all benefits it affords
nondisabled individuals--thereby increasing the sense of isolation
and stigma among these Americans that Title III was meant to
redress. The Plaintiff has attempted to use the Defendant's Website
at least once in the past in order to access the Information and
services presented thereon in order to access and visit the
Physical Locations. Unfortunately, because of the Defendant's
failure to build its Website in a manner that is compatible with
screen reader programs, he is unable to understand, and thus is
denied the benefit of, much of the content and services he wishes
to access or use, says the complaint.
The Plaintiff is a blind, visually-impaired handicapped person and
requires screen-reading software to read website content using his
computer.
The Defendant is a financial institution that own and operates
physical locations offering banking and related financial
services.[BN]
The Plaintiff is represented by:
David S. Glanzberg, Esq.
GLANZBERG TOBIA LAW, P.C.
123 South Broad Street, Suite 1640
Philadelphia, PA 19109
Phone: (215) 981-5400
Fax: (267) 319-1993
Email: david.glanzberg@gtlawpc.com
BARNABAS HEALTH: Settlements ERISA Class Action for $1.75 Million
-----------------------------------------------------------------
Abby Wargo, writing for Law360, reports that two employees of
Barnabas Health Inc., New Jersey's largest health system, asked a
federal judge to sign off on a $1.75 million settlement resolving
an Employee Retirement Income Security Act class action alleging
the system mismanaged the retirement fund. [GN]
BLACKSTONE CONSULTING: Lockett Labor Code Suit Goes to C.D. Cal.
----------------------------------------------------------------
The case styled TIFFANY LOCKETT and TOCASHEMA WILLIAMS,
individually and on behalf of all others similarly situated v.
BLACKSTONE CONSULTING, INC. and DOES 1 through 50, inclusive, Case
No. CVRI2201443, was removed from the Superior Court of California,
County of Riverside, to the U.S. District Court for the Central
District of California on May 17, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 5:22-cv-00827 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to pay minimum wages for all hours worked,
failure to pay overtime, failure to reimburse necessary
business-related expenses and costs, failure to provide off-duty
meal periods, failure to provide rest breaks, failure to provide
complete and accurate wage statements, and unfair business
practices.
Blackstone Consulting, Inc. is a business management consulting
firm based in Los Angeles, California. [BN]
The Defendant is represented by:
Pankit J. Doshi, Esq.
Syed H. Mannan, Esq.
MCDERMOTT WILL & EMERY LLP
415 Mission St., Suite 5600
San Francisco, CA 94105-2616
Telephone: (628) 218-3800
Facsimile: (628) 877-0107
E-mail: pdoshi@mwe.com
smannan@mwe.com
BLENDERS EYEWEAR: Smaling Sues Over Unsolicited Text Message Ads
----------------------------------------------------------------
PATRICK SMALING, individually and on behalf of all others similarly
situated, Plaintiff v. BLENDERS EYEWEAR, LLC, Defendant, Case No.
CACE-22-007088 (Fla. 17th Jud. Cir. Ct., May 16, 2022) brings this
class action complaint against the Defendant asserting claim for
monetary and treble damages pursuant to the Florida Telephone
Solicitation Act.
The Plaintiff claims that the Defendant began sending unsolicited
telemarketing text message calls to his cellular telephone number
on or about January 7, 2021 in an attempt to solicit the sale of
its goods and services and/or to encourage the future purchase or
investment in its property, goods, or services. Also, the Defendant
allegedly used a computer software system that automatically
selected and dialed the Plaintiff's and the Class members'
telephone numbers. More specifically, the Plaintiff asserts that he
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.
As a result of the Defendant's unsolicited telemarketing text
messages, the Plaintiff and other similarly situated individuals
have suffered harm in the form of invasion of privacy, aggravation,
annoyance, inconvenience, and disruptions to their daily life.
Blenders Eyewear, LLC is a retail company specializing in
sunglasses. [BN]
The Plaintiff is represented by:
Jeremy Dover, Esq.
DEMESIN & DOVER, PLLC
1650 SE 17th St., Suite 100
Fort Lauderdale, FL 33316
Tel: (866) 954-6673
Fax: (954) 916-8499
E-mail: Jdover@attorneysoftheinjured.com
Spam-Pleading@attorneysoftheinjured.com
BLIZZARD ENTERTAINMENT: Y.H. Suit Removed to C.D. California
------------------------------------------------------------
The case styled as Y.H., by and through her Guardian Nathan Harris,
individually and on behalf of similarly situated individuals v.
Blizzard Entertainment, Inc., Case No. 30-02022-01257732 was
removed from the Orange County Superior Court, to the U.S. District
Court for the Central District of California on May 17, 2022.
The District Court Clerk assigned Case No. 8:22-cv-00998 to the
proceeding.
The nature of suit is stated as Other Fraud.
Blizzard Entertainment, Inc. -- http://blizzard.com/-- is an
American video game developer and publisher based in Irvine,
California.[BN]
The Plaintiff appears pro se.
The Defendant is represented by:
Ryan Matthew Salzman, Esq.
FAEGRE DRINKER BIDDLE AND REATH LLP
1800 Century Park East Suite 1500
Los Angeles, CA 90067-1517
Phone: (310) 203-4000
Fax: (310) 229-1285
Email: ryan.salzman@faegredrinker.com
BLUE DIAMOND: Deaver Files Suit in Cal. Super. Ct.
--------------------------------------------------
A class action lawsuit has been filed against Blue Diamond Growers,
et al. The case is styled as Jared Deaver, on behalf of all others
similarly situated v. Blue Diamond Growers, Does 1-50, Case No.
34-2022-00319378-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., May
4, 2022).
The case type is stated as "Other Employment - Civil Unlimited."
Blue Diamond Growers -- http://www.bluediamond.com/-- is an
agricultural cooperative and marketing organization that
specializes in California almonds.[BN]
The Plaintiff is represented by:
Larry W. Lee, Esq.
DIVERSITY LAW GROUP
515 S Figueroa St., Ste. 1250
Los Angeles, CA 90071-3316
Phone: 213-488-6555
Fax: 213-488-6554
Email: lwlee@diversitylaw.com
- and -
William L. Marder, Esq.
POLARIS LAW GROUP LLP
501 San Benito St # 200
Hollister, CA 95023
Phone: 831-531-4214
Fax: 831-634-0333
Email: bill@polarislawgroup.com
- and -
Edward W Choi, Esq.
LAW OFFICES OF CHOI & ASSOCIATES
515 S Figueroa St, Ste 1250
Los Angeles, CA 90071-3316
Phone: 213-381-1515
Fax: 213-465-4885
Email: edward.choi@choiandassociates.com
BOTE LLC: Feliz Files ADA Suit in S.D. New York
-----------------------------------------------
A class action lawsuit has been filed against Bote, LLC. The case
is styled as Roberta Feliz, individually, and on behalf of all
others similarly situated v. Bote, LLC, Case No. 1:22-cv-03987
(S.D.N.Y., May 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
BOTE -- https://www.boteboard.com/ -- offers the highest quality,
most innovative, best looking, and easiest to use stand up paddle
boards, kayaks, docks and paddle gear on the planet.[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
BRP US: Bella Vista Files Suit in S.D. Florida
----------------------------------------------
A class action lawsuit has been filed against BRP US Inc., et al.
The case is styled as Bella Vista Lote 56, S.A., Lorenzo Figueroa,
individually and on behalf of all others similarly situated v. BRP
US Inc., Bombardier Recreational Products Inc., BRP Inc., Case No.
1:22-cv-21411-CMA (S.D. Fla., May 5, 2022).
The nature of suit is stated as Contract Product Liability.
Bombardier Recreational Products Inc., operating as BRP --
https://www.brp.com/ -- is a Canadian manufacturer of snowmobiles,
all-terrain vehicles, motorcycles, and personal watercraft.[BN]
The Plaintiffs are represented by:
Eduardo Ayala Maura, Esq.
1390 Brickell Avenue 335
Miami, FL 33131
Phone: (305) 570-2208
Fax: (305) 503-7206
Email: eayala@ayalalawpa.com
BUREAU VERITAS: Creagh Sues Over Elevator Inspectors' Unpaid OT
---------------------------------------------------------------
ROBERT CREAGH, individually and on behalf of all others similarly
situated, Plaintiff v. BUREAU VERITAS CERTIFICATION NORTH AMERICA,
INC., BUREAU VERITAS NATIONAL ELEVATOR INSPECTION SERVICES, INC.,
also known as NATIONAL ELEVATOR INSPECTION SERVICE ACQUISITIONS,
INC., Defendants, Case No. 1:22-cv-04004 (S.D.N.Y., May 16, 2022)
is a class action against the Defendants for failure to pay
overtime wages in violation of the Fair Labor Standards Act and the
New York State Labor Law.
Mr. Creagh began working for Bureau Veritas as an elevator
inspector in November 2008 and worked in that role until December
2020 when he resigned to take another position.
Bureau Veritas Certification North America is a provider of
elevation inspection services, with its principal place of business
in New York, New York.
Bureau Veritas National Elevator Inspection Services, Inc., also
known as National Elevator Inspection Service Acquisitions, Inc.,
is a provider of laboratory testing, inspection and certification
services, with a principal place of business in Sunrise, Florida.
[BN]
The Plaintiff is represented by:
Jason L. Solotaroff, Esq.
GISKAN, SOLOTAROFF & ANDERSON LLP
90 Broad Street
New York, NY 10004
Telephone: (646) 964-9604
E-mail: jsolotaroff@gslawny.com
CALIFORNIA: Perkins Coie Attorneys Discuss California Privacy Law
-----------------------------------------------------------------
Sunita Bali, Esq., David Biderman, Esq., Susan Fahringer, Esq.,
Aaron Goldstein, Esq., Steven Hwang, Esq., and Kevin Patariu, Esq.,
of Perkins Coie, in an article for JDSupra, report that California
has the most comprehensive privacy law in the United States. The
California Consumer Privacy Act (CCPA) went into effect on January
1, 2020, and regulates any "business" that does business in
California. The CCPA provides consumers in California with greater
control over data that companies collect about them. Moreover,
section 1798.150(a)(1) of the CCPA provides a private right of
action to "[a]ny consumer whose nonencrypted and nonredacted
personal information . . . is subject to an unauthorized access and
exfiltration, theft, or disclosure" as a result of a business
failing to satisfy "the duty to implement and maintain reasonable
security procedures and practices." Damages available for a private
right of action under section 1798.150(a) (1) include a statutory
amount between $100 and $750 "per consumer per incident or actual
damages, whichever is greater," as well as injunctive or
declaratory relief and "any other relief the court deems proper
A copy of the full publication is available at:
https://www.jdsupra.com/legalnews/california-consumer-privacy-act-8620519/
[GN]
CALVIN KLEIN: Mason Says Website Inaccessible to Blind Users
------------------------------------------------------------
PORTIA MASON, individually and on behalf of all others similarly
situated, Plaintiff v. CALVIN KLEIN, INC., a New York corporation;
and DOES 1 to 10, inclusive, Defendants, Case No. 2:22-cv-03321
(C.D. Cal., May 16, 2021) is a class action complaint brought
against the Defendant for its alleged violations of the Americans
with Disabilities Act of 1990 and the Unruh Civil Rights Act.
The Plaintiff, who is a visually impaired and legally blind
individual who requires screen-reading software to read website
content using her computer, alleges that the Defendant denied her
and other similarly situated visually impaired persons equal and
full access to its stores and numerous goods, services, and
benefits offered to the public through its website. The Plaintiff
asserts that during her numerous visits to the Defendant's website,
she has encountered multiple access barriers which have deterred
her from accessing the Defendant's website and from visiting its
stores' physical location. Allegedly, the linked images of the
Defendant's website lacked sufficient alternative text to describe
and inform the Plaintiff and other similarly situated blind persons
about the respective good advertised for sale.
According to the complaint, the Defendant also engaged in acts of
intentional discrimination because it failed to comply with WCAG
2.1, which would provide the Plaintiff and other similarly situated
blind persons with equal access to the website.
The Plaintiff seeks a preliminary and permanent injunction
enjoining the Defendant from violating the Unruh Civil Rights Act
and ADA, and requiring the Defendant to take the steps necessary to
make its website readily accessible to and usable by
visually-impaired individuals. The Plaintiff also seeks statutory
minimum damages, attorneys' fees and expenses, pre-judgment
interest, litigation costs, and other relief as the Court deems
just and proper.
Calvin Klein operates the website https://www.calvinklein.us/en
which provides consumers access to a global lifestyle bran that
exemplifies bold, progressive ideals and a seductive aesthetic.
[BN]
The Plaintiff is represented by:
Thiago M. Coelho, Esq.
Binyamin I. Manoucheri, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Blvd., 12th Floor
Los Angeles, CA 90010
Tel: (213) 381-9988
Fax: (213) 381-9989
E-mail: thiago@wilshirelawfirm.com
binyamin@wilshirelawfirm.com
CAN B CORP: Chalas Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Can B Corp. The case
is styled as Ana Chalas, individually, and on behalf of all others
similarly situated v. Can B Corp., Case No. 1:22-cv-03970
(S.D.N.Y., May 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Can-B-Corp -- https://www.canbcorp.com/ -- creates, develops and
produces next generation health and wellness products and
services.[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
CANADA: Immigration Detainees Sue Over Unfair Detention Practices
-----------------------------------------------------------------
A proposed class action against the Federal Government was launched
on May 16 on behalf of Immigration Detainees held in Provincial
Prisons.
Immigration Detainees are non-citizens who are detained solely for
an administrative reason. The majority pose no risk to public
safety and are held because the federal government believes they
are a flight risk and will not appear for an immigration hearing or
for removal from Canada.
Under domestic and international legal rules, immigration detention
is an administrative measure that cannot be punitive in nature and
immigration detainees should be separated from those held for
criminal reasons. Despite this, many Immigration Detainees are
imprisoned in punitive Provincial Prisons where they are co-mingled
with those serving criminal sentences. In fact, the majority of
time spent in immigration detention—approximately two-thirds—is
spent in a Provincial Prison, rather than a specially built
immigration holding centre.
Every year, thousands of Immigration Detainees are incarcerated in
Provincial Prisons, including refugees, migrants, and even
permanent residents who have lived here for many years. While in
prison, Immigration Detainees are subjected to the same restrictive
and violent environment as criminal inmates despite not being
detained for any criminal purpose: they are handcuffed, shackled,
strip-searched, confined to small prison cells, subjected to
lockdowns, solitary confinement and rigid routines, and kept under
constant surveillance, with very limited access to their families,
legal counsel, and the outside world. Unlike convicted criminal
inmates who serve a fixed sentence in prison, Immigration Detainees
face a potentially indefinite period of incarceration. This
uncertain nature of when their detention will end, some stretching
for months or even years, can cause or worsen mental health
issues.
These punitive immigration detention practices have long been
criticized by the international community. Organizations such as
Amnesty International and Human Rights Watch have accused Canada of
breaching international human rights standards.
The plaintiffs in the proposed class action lawsuit are two
Immigration Detainees who were detained on the grounds that they
were flight risks but were sent to maximum security Ontario prisons
rather than the Immigration Holding Centre in Toronto.
The plaintiffs allege, on behalf of all Immigration Detainees
imprisoned in Provincial Prisons since May 16, 2016, that detention
of Immigration Detainees in Provincial Prisons is a violation of
their Charter rights, a breach of the federal government's tort and
fiduciary duties to them, and contrary to domestic and
international legal requirements which mandate that immigration
detention must be administrative and non-punitive in nature. The
class action also alleges that Immigration Detainees with mental
health conditions are discriminated against in the practice of
detention in Provincial Prisons, in violation of their Charter
right to equality.
Proposed class counsel are Waddell Phillips PC, Subodh Bharati
Barrister & Solicitor, and Foreman & Company PC. Individuals who
believe that they may be affected by this class action are
encouraged to contact one of these law firms by calling
1-800-991-0286 or 1-855-814-4575 or emailing
reception@waddellphillips.ca, info@foremancompany.com or
classaction@ssblaw.ca
For media enquiries, please contact Cory Wanless at
cory@waddellphillips.ca or Subodh Bharati at subodh@ssblaw.ca
The statement of claim can be found here:
https://waddellphillips.ca/class-actions/immigration-class-action/
[GN]
CANISIUS COLLEGE: Miller Files ADA Suit in W.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Canisius College. The
case is styled as Kimberly Miller, on behalf of herself and all
other persons similarly situated v. Canisius College, Case No.
1:22-cv-00367 (W.D.N.Y., May 17, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Canisius College -- https://www.canisius.edu/ -- is a private
Jesuit college in Buffalo, New York.[BN]
The Plaintiff is represented by:
Jeffrey M. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: jeffrey@gottlieb.legal
CAPITAL ONE: Aug. 22 Settlement Claims Filing Deadline Set
----------------------------------------------------------
Erin Jones and Mauricio Chamberlin, writing for Verify, report that
on July 19, 2019, Capital One announced that it had been the victim
of a criminal cyberattack. According to the Department of Justice,
Paige Thompson, a former software engineer at a Seattle technology
company, gained unauthorized access to the personal information of
nearly 100 million Capital One credit card customers and applicants
in the United States.
Following the cyberattack, Thompson posted about the data breach on
the information sharing site GitHub, according to a criminal
complaint. The DOJ says a GitHub user who saw the post alerted
Capital One on July 17, 2019.
Numerous lawsuits were brought against Capital One on behalf of the
customers whose personal information was accessed as a result of
the cyberattack. On Feb. 7, 2022, a U.S. federal court
preliminarily approved a class action settlement related to the
data breach. VERIFY viewer Tamara recently received an email about
the settlement and asked our team to confirm whether it is real or
not.
THE QUESTION
Is the Capital One data breach settlement real?
THE SOURCES
Capital One
Capital One data breach class action settlement website
THE ANSWER
This is true.
Yes, the Capital One data breach settlement is real.
WHAT WE FOUND
Tamara forwarded VERIFY the email she received from a website
pointing to capitalonesettlement.com. The settlement website is
legitimate, according to Capital One.
On a webpage that provides information about the July 2019
cyberattack, Capital One instructs customers affected by the breach
to visit capitalonesettlement.com for additional details about the
settlement.
According to the settlement administrator, Capital One is required
to establish a settlement fund of $190 million. The settlement fund
will be used to:
-- Make cash payments for out-of-pocket losses and lost time;
-- Purchase identity defense services;
-- Purchase restoration services for all settlement class
members, regardless of whether they make a claim;
-- Pay the costs of notifying settlement class members and
administering the settlement;
-- Pay service awards to settlement class representatives and
any other settlement class member who was deposed in the action, as
approved by the court;
-- Pay attorneys' fees, costs, and expenses, as approved by the
court.
If you spent money to deal with fraud or identity theft or to
protect yourself from future harm as a result of the data breach,
then you can submit a claim for reimbursement of up to $25,000 for
the loss of out-of-pocket expenses. This includes costs incurred
while preventing identity theft or fraud, professional fees, up to
15 hours of lost time at a rate of at least $25 per hour, and other
miscellaneous expenses, according to the settlement administrator.
To claim reimbursement for out-of-pocket losses, the settlement
administrator says you must provide "reasonable documentation,"
which includes credit card statements, bank statements, invoices,
telephone records, and receipts. While personal certifications,
declarations, or affidavits do not constitute as reasonable
documentation, they may also be included to provide clarification,
context, or support. The settlement administrator will decide if
your claim is valid, and says only valid claims will be paid.
If you received a notice about the settlement, you are likely a
member of the settlement class -- meaning you are among the
approximately 98 million U.S. residents identified by Capital One
whose information was accessed in the data breach, according to the
settlement administrator. The notice contains a unique ID and a
PIN, which are both required to file a claim form. Tamara received
a unique ID and PIN in the email she received.
To confirm you are a settlement class member, and eligible for
benefits, you can call 1-855-604-1811 or contact the settlement
administrator at info@CapitalOneSettlement.com.
Claims must be filed online or by mail no later than August 22. A
final settlement approval hearing will be held on August 19. For
more information about the settlement, visit
capitalonesettlement.com.
After the data breach, Capital One said it immediately fixed the
issue and began working with federal law enforcement. Thompson, the
person who took the data, was captured by the FBI and is facing
federal charges for wire fraud and computer data theft related to
the data breach. The government has stated they believe the data
has been recovered and that there is no evidence the data was used
for fraud or shared by Thompson, according to Capital One. In 2020,
the U.S. Treasury Department fined Capital One $80 million for
careless network security practices related to the data breach.
"While I am grateful that the perpetrator has been caught, I am
deeply sorry for what has happened," Richard D. Fairbank, Capital
One's CEO, said. "I sincerely apologize for the understandable
worry this incident must be causing those affected and I am
committed to making it right." [GN]
CARGILL MEAT: Marin Labor Code Suit Removed to E.D. California
--------------------------------------------------------------
The case styled RICHARD MARIN and SAMANTHA LOPEZ, individually and
on behalf of all others similarly situated v. CARGILL MEAT
SOLUTIONS CORPORATION and DOES 1-50, inclusive, Case No.
22CECG00573, was removed from the Superior Court of the State of
California for the County of Fresno to the U.S. District Court for
the Eastern District of California on May 13, 2022.
The Clerk of Court for the Eastern District of California assigned
Case No. 1:22-at-00345 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California Business & Professions
Code including failure to pay wages, including overtime; failure to
provide meal periods; failure to provide rest periods; failure to
pay timely wages; failure to provide accurate itemized wage
statements; failure to provide day of rest; failure to indemnify
necessary business expenses; failure to accurately record and pay
sick leave; unlawful deductions; and unfair business practices.
Cargill Meat Solutions Corporation is an operator of a meat
processing plant in California. [BN]
The Defendant is represented by:
Jason E. Barsanti, Esq.
COZEN O'CONNOR
501 W. Broadway, Suite 1610
San Diego, CA 92101
Telephone: (619) 234-1700
Facsimile: (619) 234-7831
E-mail: jbarsanti@cozen.com
- and –
Ethan W. Chernin, Esq.
COZEN O'CONNOR
401 Wilshire Blvd., Suite 850
Santa Monica, CA 90401
Telephone: (310) 393-4000
Facsimile: (310) 394-4700
E-mail: echernin@cozen.com
- and –
Brett Greving, Esq.
COZEN O'CONNOR
101 Montgomery Street, Suite 1400
San Francisco, CA 94104
Telephone: (415) 644-0914
Facsimile: (415) 644-0978
E-mail: bgreving@cozen.com
CARGILL MEAT: Removes Employment Class Action to E.D. Calif.
------------------------------------------------------------
Wilson Fay, writing for Law Street, reports that on May 13, Cargill
Meat Solutions Corporation removed the class action case of Marin
et al v. Cargill Meat Solutions Corp. from the Superior Court of
California to the Eastern District of California. The original
complaint alleges class action violations of California's wage and
employment laws.
According to the complaint, Cargill is a Delaware corporation that
operates a beef processing plant that employs more than 100
non-exempt employees. Additionally, the complaint states that the
named plaintiffs, Richard Marin and Samantha Lopez, were former
non-exempt employees of Cargill's beef processing plant.
The complaint alleges that the named plaintiffs and other class
members would frequently work in excess of eight hours per day and
40 hours per week, but were not paid the required overtime rate for
their time worked in excess of 40 hours. Further, the plaintiffs
allege that Cargill failed to properly calculate the class members
regular rate of pay by failing to include all forms of compensation
for the overtime calculation process. The plaintiffs argue that for
certain pay periods, their pay stubs reflected an hourly rate lower
than their actual rates and that the overtime pay was slightly
lower than the required 1.5 times base pay.
Additionally, the plaintiffs purport that Cargill failed to pay
sick pay at the regular rate and failed to pay the plaintiffs for
additional work before and after their shifts. Further, the
plaintiffs allege that Cargill regularly required plaintiffs to
forgo their lawfully required meal breaks, and Cargill would then
modify the plaintiffs time to include lawfully required meal
periods even when the plaintiffs did not receive their meal break.
The complaint alleges that Cargill knew or should have known of the
required pay rates, the proper calculation process and required
breaks under the law. The plaintiffs argue that they have not
received the proper compensation and required breaks under the law
and the defendants willfully failed to comply with California labor
and employment laws.
Accordingly, the plaintiffs bring the present class action lawsuit
seeking class certification, recovery of unpaid wages, compensatory
damages, pre- and post-judgment interest, attorney's fees and costs
for the defendant's alleged violation of California's labor and
employment law for failure to pay wages, failure to provide meal
breaks and rest periods, failure to provide accurate wage
statements, failure to accurately record and pay sick leave and
unlawful deduction of wages.
The plaintiffs are represented by James Hawkins APLC, and the
defendant is represented by Cozen O'Connor. [GN]
CARNAGIO ENTERPRISES: Policy Exclusions Inapplicable in BIPA Suit
-----------------------------------------------------------------
Don R. Sampen, writing for Chicago Daily Law Bulletin, reports that
the U.S. District Court for the Northern District of Illinois
recently held that liability policy exclusions for employment
practices and certain statutory violations are not effective to
exclude coverage for a claim that the insured violated the Illinois
Biometric Information Privacy Act in the insured's handling of
fingerprints taken from employees for timekeeping purposes. The
case is American Family Mutual Insurance Co. v. Carnagio
Enterprises, Inc., No. 20 C 3665, 2022 U.S. Dist. Lexis 58358
(March 30). [GN]
CEDAR REALTY: Faces Sydney Securities Suit Over Merger Issue
------------------------------------------------------------
Wheeler Real Estate Investment Trust, 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 April 8, 2022, several purported holders of preferred stock of
Cedar Realty Trust, Inc. filed a putative class action against
Cedar, Cedar's Board of Directors, and the company arising out of
the pending acquisition of Cedar by the company captioned "David
Sydney, et. al. v. Cedar Realty Trust, Inc., Wheeler Real Estate
Investment Trust, Inc. et al.," Circuit Court for Montgomery
County, Maryland.
The complaint includes allegations of breach of contract against
Cedar and Cedar's Board of Directors with respect to the articles
supplementary governing the terms of Cedar's preferred stock and
breach of fiduciary duty against Cedar's Board of Directors. The
complaint further alleges that the company tortuously interfered
with Cedar's contract with the owners of Cedar's preferred stock
and aided and abetted the alleged breach of fiduciary duty by
Cedar's Board of Directors.
The complaint seeks, among other relief, an injunction enjoining
the proposed acquisition, an injunction enjoining the distribution
by Cedar to Cedar's common stockholders of funds to be received by
Cedar from selling a portion of its assets prior to the
acquisition, and Wheeler Real Estate Investment Trust, Inc. and
subsidiaries.
In May 6, 2022, the plaintiffs filed an amended complaint and added
a claim against Cedar alleging breach of contract with respect to
conversion rights for the preferred shareholders and a related
claim against the Company for tortious interference with contract
with respect to conversion rights. In May 6, 2022, the plaintiffs
also filed motions seeking to enjoin the merger, asking the Court
to allow expedited discovery, and to set a date for a preliminary
injunction hearing.
Wheeler Real Estate Investment Trust, Inc. is a Maryland
corporation that serves as the general partner of Wheeler REIT,
L.P. As of March 31, 2022, the trust, through the Operating
Partnership, owned and operated fifty-seven centers and four
undeveloped properties in Virginia, North Carolina, South Carolina,
Georgia, Florida, Alabama, Oklahoma, Tennessee, Kentucky, New
Jersey, Pennsylvania and West Virginia.
CELGENE CORP: July 11 Class Action Opt-Out Deadline Set
-------------------------------------------------------
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
IN RE CELGENE CORPORATION
SECURITIES LITIGATION
Case No. 2:18-cv-04772 (JMV) (JBC)
SUMMARY NOTICE OF PENDENCY OF CLASS ACTION
THIS NOTICE AFFECTS all persons and entities who purchased the
common stock of Celgene Corporation ("Celgene") between April 27,
2017 and April 27, 2018, and were damaged thereby (the "Class").
Excluded from the Class are: (i) Celgene; (ii) any directors and
officers of Celgene during the Class Period and members of their
immediate families; (iii) the subsidiaries, parents and affiliates
of Celgene; (iv) any firm, trust, corporation or other entity in
which Celgene has or had a controlling interest; and (v) the legal
representatives, heirs, successors and assigns of any such excluded
party.
YOU ARE HEREBY NOTIFIED, pursuant to Federal Rule of Civil
Procedure ("Rule") 23 and by Order of the United States District
Court for the District of New Jersey, that the above-captioned
action ("Action") against Celgene, Scott A. Smith, Terrie Curran,
and Philippe Martin (collectively, "Defendants"), has been
certified as a class action on behalf of the Class. The Court has
appointed AMF Pensionsfoersaekring AB ("Class Representative") to
represent the Class. The Action has not been adjudicated or
settled. This notice is not an admission by Defendants or an
expression of any opinion by the Court as to the merits of the
Action, or a finding by the Court that the claims asserted by Class
Representative in the Action are valid. This notice is intended
only to inform members of the Class that the Action is currently in
progress.
IF YOU ARE A MEMBER OF THE CLASS, YOUR RIGHTS WILL BE AFFECTED BY
THE LAWSUIT. This notice provides only a summary of the information
contained in the detailed, long-form Notice of Pendency of Class
Action ("Notice"). You may obtain a copy of the Notice from the
website for the Action, www.CelgeneSecuritiesLitigation.com, or by
contacting the Administrator:
Celgene Corporation Securities Litigation
c/o JND Legal Administration
P.O. Box 91422
Seattle, WA 98111
(855) 648-0893
info@CelgeneSecuritiesLitigation.com
If you are a Class member you should receive a Postcard Notice
regarding the Action by mail. If you are a Class member and you do
not receive a Postcard Notice by mail, please send your name and
address to the Administrator so that you will receive any future
notices disseminated in connection with the Action.
Inquiries, other than requests for the Notice, may be made to
Court-appointed Class Counsel:
KESSLER TOPAZ MELTZER
& CHECK, LLP
Andrew L. Zivitz, Esq.
Matthew L. Mustokoff, Esq.
280 King of Prussia Road
Radnor, PA 19087
Telephone: (610) 667-7706
info@ktmc.com
www.ktmc.com
If you are a Class member, you have the right to decide whether to
remain a member of the Class. If you choose to remain a member of
the Class, you do not need to do anything at this time other than
retain your documentation reflecting your transactions and holdings
in Celgene common stock. You will automatically be included in the
Class, and you will be bound by the proceedings in the Action,
including all past, present, and future orders and judgments of the
Court, whether favorable or unfavorable. If you are a Class member
and do not wish to remain a member of the Class, you must take
steps to exclude yourself from the Class.
If you timely and validly request to be excluded from the Class,
you will not be bound by any orders or judgments in the Action, and
you will not be eligible to receive a share of any money which
might be recovered in the future for the benefit of the Class. To
exclude yourself from the Class, you must submit a written request
for exclusion postmarked no later than July 11, 2022, in accordance
with the instructions set forth in the Notice. Pursuant to Rule
23(e)(4), the Court has discretion as to whether a second
opportunity to request exclusion from the Class will be allowed if
there is a settlement in the Action.
Further information may be obtained by contacting the Administrator
at info@CelgeneSecuritiesLitigation.com, or (855) 648-0893, or by
visiting the website www.CelgeneSecuritiesLitigation.com.
Please do not call or write the Court with questions.
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY [GN]
CELLCO PARTNERSHIP: Ruling in Consumer Contract Suit Discussed
--------------------------------------------------------------
Wystan Ackerman, Esq., of Robinson+Cole, in an article for JDSupra,
reports that a recent Sixth Circuit decision caught my eye because
it addressed an important issue on which I have not seen any other
appellate decisions (and none were cited in the opinion). The
plaintiff argued that the Class Action Fairness Act (CAFA) should
be interpreted as overriding the Federal Arbitration Act (FAA),
effectively precluding the enforcement of class action waiver
provisions in consumer contracts. The Sixth Circuit rejected the
argument, finding no clear congressional intent to displace the
FAA.
In Adell v. Cellco Partnership, No. 21-3570, 2022 WL 1487765 (6th
Cir. May 11, 2022), the plaintiff brought a putative class action
involving a Verizon Wireless mobile phone contract, claiming that a
monthly administrative charge of about $1 was not permitted by the
contract. The defendant filed a motion to compel arbitration, which
the district court granted. The arbitrator ruled for the defendant,
the district court confirmed the award, and the plaintiff
appealed.
The plaintiff argued that "CAFA guaranteed her right to federal
adjudication of her claim," asserting support for this position in
the statutorily-expressed purpose of CAFA and its legislative
history. She also argued that Epic Systems Corp. v. Lewis, 138 S.
Ct. 1612 (2018), which held that the National Labor Relations Act
did not displace the FAA in the employment context, supported her
position.
The Sixth Circuit rejected the argument, noting that courts
construing two statutes should give effect to both when possible.
Construing one statute as displacing another is generally
appropriate only if there is "clear and manifest congressional
intention" to do so. The Sixth Circuit explained that "CAFA
undoubtedly discusses class actions, but it neither mentions
arbitration nor offers the ‘clear and manifest congressional
intention' signaling FAA displacement." While CAFA's "findings and
purposes" "express the importance of class action lawsuits . . .
[t]hese are not clear statements displacing the FAA." The court
also found no support for the plaintiff's position in CAFA's
legislative history. [GN]
CETERIS PORTFOLIO: Nojovits Files FDCPA Suit in E.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Ceteris Portfolio
Services, LLC. The case is styled as Zev Nojovits, individually and
on behalf of all others similarly situated v. Ceteris Portfolio
Services, LLC, Case No. 1:22-cv-02833-PKC-CLP (E.D.N.Y., May 16,
2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices 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:
Robert Thomas Yusko, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: ryusko@steinsakslegal.com
CHARTER COMMUNICATIONS: Wins Partial Summary Judgment in Sansone
----------------------------------------------------------------
In the case, JENNIFER M. SANSONE, and BALDEMAR ORDUNO, Jr.,
Individually and on Behalf of Other Members of the Public Similarly
Situated, Plaintiffs v. CHARTER COMMUNICATIONS, INC.; TWC
ADMINISTRATION LLC; CHARTER COMMUNICATIONS, LLC; and DOES 1-25,
inclusive, Defendants, Case No. 17-cv-1880-WQH-JLB (S.D. Cal.),
Judge William Q. Hayes of the U.S. District Court for the Southern
District of California granted the Motion for Partial Summary
Judgment filed by Defendants Charter Communications, Inc., TWC
Administration LLC, and Charter Communications, LLC.
I. Background
On Dec. 6, 2017, Plaintiffs Jennifer M. Sansone and Baldemar
Orduno, Jr., filed the First Amended Class Action Complaint against
Defendants Charter Communications, Inc. ("CCI"), TWC Administration
LLC ("TWCA"), and Charter Communications, LLC ("CCL"). The
Plaintiffs allege that their employment with TWCA was terminated
when Time Warner Cable, Inc. ("TWCI") merged with Legacy Charter
Communications, Inc. ("L-CCI") and the Plaintiffs subsequently
began working for CCL.
The Plaintiffs bring the following six causes of action against the
Defendants: (1) violation of California Labor Code Section 227.3
for failure to pay vested vacation wages at the time of
termination; (2) violation of California Labor Code Section 227.3
for reduction in the valuation of the vested vacation wages; (3)
willful failure to timely pay wages at termination in violation of
California Labor Code Sections 201 and 203; (4) breach of contract
regarding base compensation; (5) breach of contract regarding
commissions; and (6) unfair competition.
On May 31, 2019, the Defendants filed a Motion for Summary
Judgment. They contended that the "Plaintiffs' claims under the
California Labor Code fail as a matter of law because the
Plaintiffs cannot prove that a termination or discharge of the
Plaintiffs occurred in the case." The Plaintiffs contended that "a
termination occurred as a result of the transaction that closed May
18, 2016 and caused the permanent end of the Plaintiffs' employment
with TWCA and the beginning of their employment with a distinct
company, CCL," in December 2016.
On Sept. 18, 2019, the Court issued an Order granting summary
judgment to the Defendants on all claims. The Court stated that "to
prevail on claims brought pursuant to Section 227.3" for failure to
pay vacation wages and devaluation of vacation wages, "a plaintiff
must prove that employment was terminated." Without demonstrating a
termination, the Plaintiff was also not entitled to penalties for
willful failure to pay vacation wages under Section 203 (i.e.
"waiting time penalties"). The Court concluded that summary
judgment was appropriate on the California Labor Code claims
because the "Plaintiffs have not presented evidence to show that a
termination occurred in the case." On the same day, the Clerk of
the Court entered Judgment in favor of the Defendants and against
the Plaintiffs.
On Oct. 1, 2019, the Plaintiffs filed a Notice of Appeal as to the
Court's Order granting summary judgment and as to the Clerk's
Judgment. On Jan. 5, 2021, the Court of Appeals issued a Mandate
reversing the Court's grant of summary judgment to Defendants on
Plaintiffs' California Labor Code claims.
The Court of Appeals further held that "because it reverses the
district court's grant of summary judgment on the Plaintiffs'
Section 227.3 claims, it also reverse summary judgment on the
derivative claim for waiting time penalties."
On Jan. 3, 2022, the Defendants filed a Partial Motion for Summary
Judgment on the claim for waiting time penalties under Section 203
on the basis that the Defendants' failure to pay vacation wages
when the Plaintiffs were terminated was not willful. On Jan. 24,
2022, the Plaintiffs filed a Response in opposition to the motion.
On Jan. 31, 2022, the Defendants filed a Reply.
II. Discussion
The Defendants seek partial summary judgment solely on the
Plaintiffs' claim for waiting time penalties under California Labor
Code Section 203. They contend that a good faith dispute as to
whether the vacation wages at issue were due precludes a finding
that Defendants willfully failed to pay the vacation wages. They
contend that the existence of a good faith dispute is demonstrated
by legal uncertainty as to whether the Plaintiffs were terminated,
as evidenced by: (1) language in the Court of Appeals decision
suggesting that the issue was one of first impression; (2) the
decision of the Court of Appeals to not issue a published opinion;
(3) the absence of any case law directly on point and the existence
of authority in support of the Defendants' position that no
termination had occurred; and (4) the purpose of California Labor
Code Section 227.3.
The Plaintiffs contend that there was no good faith dispute
regarding termination because "every source of authority --
statutory text, judicial opinions, administrative guidance, and
secondary sources -- confirmed a termination triggering vacation
payout obligations occurred." They contend that the procedural
circumstances of the appeal suggest that the Court of Appeals did
not consider the issue of termination legally uncertain. The
Plaintiffs contend that the Defendants acted in bad faith.
Judge Hayes finds that the facts presented by the parties
demonstrate that (1) the Plaintiffs were not given termination
paperwork or required to fill out new hire paperwork in their
transition to CCL; (2) the Plaintiffs' work location and job duties
remained the same immediately after the start of their employment
at CCL; (3) the Defendants represented to the Plaintiffs that their
vacation hours accrued while working at TWCA were to be transferred
to CCL; (4) CCL considered the Plaintiffs' service time with TWCA
for the purpose of calculating vacation accrual; and (5) several
the Plaintiffs used vacation hours at CCL that they had accrued
while previously working at TWCA.
These actions are all consistent with the position that no
termination had occurred. There is no evidence linking CCL's
January 2017 implementation of a vacation policy that resulted in a
reduction of the pay rate for accrued vacation hours for some
employees (but not others) to TWCA's failure to pay out vacation
wages. Under these circumstances, Judge Hayes holds that the
Plaintiffs' assertion that the implementation of the new vacation
policy demonstrates that CCL considered itself a new employer or
intended to knowingly circumvent the Defendants' obligations to the
Plaintiffs amounts to speculation insufficient to defeat summary
judgment.
Judge Hayes concludes that the Defendants have carried their burden
at summary judgment to establish that there was a good faith
dispute as to whether a termination occurred. They are entitled to
partial summary judgment on the California Labor Code Section 203
waiting time penalties claim because their failure to pay the
Plaintiffs' accrued vacation wages at the time of the termination
was not willful.
III. Conclusion
For the foregoing reasons, Judge Hayes granted the Defendants'
Motion for Partial Summary Judgment.
A full-text copy of the Court's May 10, 2022 Order is available at
https://tinyurl.com/2s3rmvkv from Leagle.com.
CHESTER WATER: Faces Sullivan Suit Over RICO and ADA Violations
---------------------------------------------------------------
GREGORY B. SULLIVAN, individually and on behalf of all others
similarly situated, Plaintiff v. CHESTER WATER AUTHORITY, JUDGE
DOMINIC F. PILEGGI, EEOC-PHILADELPHIA OFFICE, et al., Defendants,
Case No. 2:22-cv-00147-JDL (D. Me., May 17, 2022) is a class action
against the Defendants for violations of the Racketeer Influenced
and Corrupt Organizations Act and the American with Disabilities
Act.
The case arises from Chester Water Authority's (CWA) alleged
abusive and fraudulent medical and insurance practices against
African Americans or disabled employees. The Plaintiff and
similarly situated African American residents in Maine also assert
discrimination in housing between March 1, 2010 and present.
Chester Water Authority is a water utility company in Chester,
Pennsylvania.
The Plaintiff, individually and on behalf of all others similarly
situated, appears pro se.[BN]
CIGNA HEALTH: Hockenstein Sues Over Denial of COVID-19 Cost Claims
------------------------------------------------------------------
JEREMY HOCKENSTEIN, individually and on behalf of all others
similarly situated, Plaintiff v. CIGNA HEALTH AND LIFE INSURANCE
COMPANY, Defendant, Case No. 1:22-cv-04046 (S.D.N.Y., May 17, 2022)
is a class action against the Defendant for violation of the
Employee Retirement Income Security Act of 1974 (ERISA).
According to the complaint, the Defendant breached its fiduciary
duties under ERISA by failing to reimburse, in full and without
cost sharing or other medical cost management, the costs of
diagnostic COVID-19 testing. Moreover, the Plaintiff asserts that
Cigna failed to conduct full and fair review of its denial of
diagnostic COVID-19 reimbursement claims and also failed to provide
adequate notice of the reasons for its denials of diagnostic
COVID-19 testing claims.
Cigna Health and Life Insurance Company is an insurance company,
with a principal place of business located at 900 Cottage Grove
Road, Bloomfield, Connecticut. [BN]
The Plaintiff is represented by:
Gabriel Posner, Esq.
POSNER LAW PLLC
50 Main Street, Suite 1000
White Plains, NY 10606
Telephone: (914) 517-3532
E-mail: gabe@posner.law
CNM MARKETING: Feliz Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against CNM Marketing Inc.
The case is styled as Roberta Feliz, individually, and on behalf of
all others similarly situated v. CNM Marketing Inc., Case No.
1:22-cv-03984 (S.D.N.Y., May 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
CNM Marketing, Inc. is located in Irvine, California and is part of
the Printing and Related Support Activities 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
COLGATE UNIVERSITY: Miller Files ADA Suit in W.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Colgate University.
The case is styled as Kimberly Miller, on behalf of herself and all
other persons similarly situated v. Colgate University, Case No.
1:22-cv-00371 (W.D.N.Y., May 17, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Colgate University -- https://www.colgate.edu/ -- is a private
liberal arts college in Hamilton, New York.[BN]
The Plaintiff is represented by:
Jeffrey M. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: jeffrey@gottlieb.legal
COLLECTO INC: Davis Must File Class Cert Bid by Sept. 6
-------------------------------------------------------
In the class action lawsuit captioned as BRENDA DAVIS and CLARENCE
DAVIS, individually, and on behalf of all other similarly situated
individuals, v. COLLECTO, INC. d/b/a EOS CCA, Case No.
3:21-cv-00044 (S.D.W.Va.), the Hon. Judge Robert C. Chambers
entered an order:
1. granting joint motion to extend time for the Plaintiffs to
file their motion for class certification;
2. directing the Plaintiffs to file their motion for class
certification by September 16, 2022;
3. extending the Plaintiffs' expert disclosure deadline to
July 1, 2022; with Defendants rebuttal disclosure due by
August 1, 2022;
4. setting the close of discovery for August 17, 2022; and
5. setting dispositive motion deadlines as well as pretrial
deadlines after ruling on Plaintiff's anticipated motion
for class certification.
Collecto operates as a debt management and recovery resource
company.
A copy of the Court's order dated May 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3wu6HRA at no extra charge.[CC]
CORECIVIC OF TENNESSEE: Turner FLSA Suit Removed to D. Nevada
-------------------------------------------------------------
The case styled ANTHONY TURNER, individually and on behalf of all
others similarly situated v. CORECIVIC OF TENNESSEE, LLC and DOES
1-50, Case No. A-22-851570-C, was removed from the Eighth Judicial
District Court, Clark County, Nevada, to the U.S. District Court
for the District of Nevada on May 16, 2022.
The Clerk of Court for the District of Nevada assigned Case No.
2:22-cv-00775-GMN-NJK to the proceeding.
The case arises from the Defendant's alleged violations of the Fair
Labor Standards Act of 1938, the Nevada Constitution Minimum Wage
Amendment, and the Nevada State wage and hour statutory law by
failing to pay the Plaintiff and similarly situated correctional
and/or detention officers proper wages for all hours worked and
failing to schedule, authorize, and/or permit them to take their
legally mandated rest breaks.
CoreCivic of Tennessee, LLC is a provider of facilities support
management and consulting services, headquartered in Tennessee.
[BN]
The Defendant is represented by:
Roger L. Grandgenett II, Esq.
Emil S. Kim, Esq.
LITTLER MENDELSON, P.C.
3960 Howard Hughes Parkway, Suite 300
Las Vegas, NV 89169-5937
Telephone: (702) 862-8800
Facsimile: (702) 862-8811
E-mail: rgandgenett@littler.com
ekim@littler.com
- and –
Robert W. Pritchard, Esq.
Christian A. Angotti, Esq.
LITTLER MENDELSON, P.C.
625 Liberty Avenue, 26th Floor
Pittsburg, PA 1522
Telephone: (412) 201-7600
Facsimile: (412) 456-2377
E-mail: rpritchard@littler.com
cangotti@littler.com
CURO INTERMEDIATE: Pierre Sues Over Unlawful Collection of Debt
---------------------------------------------------------------
Alissa-Marie Pierre, individually and on behalf of all those
similarly situated v. CURO INTERMEDIATE HOLDINGS CORP. D/B/A SPEEDY
CASH, Case No. 149052692 (Fla. 11th Judicial Cir. Ct., Miami-Dade
Cty., May 5, 2022), is brought against the Defendant for their
violations the Florida Consumer Collection Practices Act.
The Defendant began attempting to collect a debt (the "Consumer
Debt") from Plaintiff. The Consumer Debt is an obligation allegedly
had by Plaintiff to pay money arising from a transaction between
the creditor of the Consumer Debt, Defendant, and Plaintiff. The
Defendant sent electronic communications to Plaintiff in connection
with the collection of the Consumer Debt. The Communication was
sent to Plaintiff between the hours of 9:00 PM and 8:00 AM in the
time zone of Plaintiff. Defendant did not have the consent of
Plaintiff to communication with Plaintiff between the hours of 9:00
PM and 8:00 AM. As such, by and through the Communication,
Defendant violated the FCCPA, says the complaint.
The Plaintiff is a natural person, and a citizen of the State of
Florida.
The Defendant is a/an Delaware Corporation, with its principal
place of business located in Wichita, Kansas.[BN]
The Plaintiff is represented by:
Jennifer G. Simil, Esq.
Jibrael S. Hindi, Esq.
THE LAW OFFICES OF JIBRAEL S. HINDI
110 SE 6th Street, Suite 1744
Fort Lauderdale, FL 33301
Phone: 954-907-1136
Fax: 855-529-9540
Email: jen@jibraellaw.com
jibrael@jibraellaw.com
CVS PHARMACY: Court Narrows Claims in Fuog's 2nd Amended Class Suit
-------------------------------------------------------------------
In the case, EDITH FUOG, Plaintiff v. CVS PHARMACY, INC., et al.
Defendants, C.A. No. 20-337 WES (D.R.I.), Judge William E. Smith of
the U.S. District Court for the District of Rhode Island granted in
part and denied in part the Defendants' Motion to Dismiss
Plaintiff's Second Amended Class Action Complaint.
I. Background
Ms. Fuog suffers from a long list of serious medical conditions,
many of which stem from her 2011 breast cancer diagnosis and
subsequent MRSA infection. MRSA stands for Methicillin-resistant
Staphylococcus aureus. No one disputes that Ms. Fuog is disabled,
nor that her life involves a constant struggle with chronic pain,
for which her doctors have prescribed her opioids. Rather, in the
case, the parties spar over the cause and legality of an additional
struggle faced by Ms. Fuog: Filling her opioid prescriptions at CVS
pharmacies.
The case arises against the backdrop of the opioid epidemic and the
torrent of litigation it spawned. Ms. Fuog alleges that when
non-party CVS Health Corporation, Defendants CVS Pharmacy, Inc. and
Caremark PHC, L.L.C. ("CVS Caremark" collectively, "CVS") was sued
more than 2,000 times for allegedly dispensing too many opioids too
freely, it overcorrected by implementing policies that unfairly and
illegally prevent its pharmacists from filling opioid prescriptions
for a class of disabled chronic pain sufferers who need them. She
claims that these policies are based on a fundamental
misinterpretation of the CDC Guideline for Prescribing Opioids for
Chronic Pain, issued in 2016.
To support her allegation that CVS has this policy she points to
two relevant sets of facts: (1) findings of major medical
organizations, including the CDC itself, that some national
pharmacy chains were misapplying the 2016 Guideline; and (2) Ms.
Fuog's experiences in attempting to get her prescriptions filled by
CVS pharmacists.
More specifically, Ms. Fuog alleges in the putative class action
that two business segments of CVS, have misinterpreted guidance
from the Center for Disease Control ("CDC") by instituting formal
and informal polices which discourage or prohibit its pharmacists
from filling opioid prescriptions above a certain dose and duration
threshold. She contends this constitutes unlawful discrimination
against the disabled in violation of Title III of the Americans
with Disabilities Act ("ADA"), 42 U.S.C. Section 12182(a) (Count
I); Section 504 of the Rehabilitation Act, 29 U.S.C. Section 794(a)
(Count II); and the anti-discrimination provisions of the
Affordable Care Act ("ACA"), 42 U.S.C. Section 18116(a).
Before the Court is the Defendants' Motion to Dismiss Plaintiff's
Second Amended Class Action Complaint.
II. Discussion
A. Plausibility Challenges
First, CVS challenges whether Ms. Fuog has plausibly pleaded that
it has the policy she claims it does, namely a hard-and-fast dose
and duration limit set at 90 MME/day and seven days.
On review of the whole Complaint, Judge Smith concludes this key
allegation clears the plausibility bar; it is well-supported by
other specific factual pleadings and the reasonable inferences that
flow from them. The Plaintiff's specific allegation to that effect
crosses the line from merely possible to distinctly plausible.
Next, CVS contends the Complaint does not allege sufficient facts
to state a claim against CVS Caremark. Upon further consideration
of these arguments, Judge Parker agrees. He says, the only two
facts pleaded about CVS Caremark specifically are that it provides
prescription benefit management services, and that Ms. Fuog's
insurance stopped paying for her medication. These facts are too
sparse and the role of CVS Caremark in perpetrating the harm
alleged is too ambiguous to keep CVS Caremark in the case, even at
this early juncture. Therefore, the Defendants' Motion is granted
as to CVS Caremark.
B. Discrimination
As explained in the Court's prior Order, the Plaintiff's claims
under the ADA, Rehabilitation Act, and ACA may be analyzed
together. Under all three statutes, Ms. Fuog must make out a prima
facie case that: "(1) she has a disability as defined by the
statutes, (2) she was 'otherwise qualified' for the program, (3)
the statutes apply to the entity engaging in the discrimination,
and (4) that the entity discriminated against her as an individual
with a disability (for example, failing to provide a reasonable
accommodation)."
Ultimately, the case hinges on the fourth factor. The fight over
whether this policy is discriminatory takes place on three fronts:
A disparate treatment theory, premised most compellingly on
proxy-discrimination; a disparate impact theory, under the
meaningful access standard; and a claim for failure to make a
reasonable accommodation. CVS argues that even if it has the policy
Ms. Fuog describes, it would not be discriminatory under any of
these theories.
Judge Smith holds that (i) the Plaintiff's pleading is adequate to
find it plausible that a sufficient fit exists to draw the
discriminatory inference; (ii) Ms. Fuog has pleaded sufficient
facts for the Court to conclude that it is plausible that those
with prescriptions over the threshold are generally denied
meaningful access to this benefit, and also disproportionately or
predominately disabled; and (iii) Ms. Fuog has therefore pleaded
that she was denied a reasonable accommodation.
III. Conclusion
For these reasons Judge Smith granted in part and denied in part
the Defendants' Motion to Dismiss.
A full-text copy of the Court's May 10, 2022 Memorandum & Order is
available at https://tinyurl.com/2yft26xr from Leagle.com.
D&D PIZZA: Court Denies Bid to Seal Settlement Docs in Mason Suit
-----------------------------------------------------------------
In the case, KATHY MASON, individually and on Behalf of similarly
situated persons, Plaintiff v. D&D PIZZA and DAVID M. BUMPUS,
Defendants, Case No. 1:21cv107 SNLJ (E.D. Mo.), Judge Stephen N.
Limbaugh, Jr., of the U.S. District Court for the Eastern District
of Missouri, Southeastern Division, denied the Defendants'
unopposed motion to file the parties' Settlement and Release
Agreement and the Plaintiffs' Supplemental Settlement Agreement and
Releases under seal.
The Plaintiff filed the class action law suit asserting unjust
enrichment and violations of the Missouri Minimum Wage Act and Fair
Labor Standards Act. The matter is before the Court on the
Defendants' unopposed motion to file the parties' Settlement and
Release Agreement (including Class Notice and Class Form) and the
Plaintiffs' Supplemental Settlement Agreement and Releases
(collectively, the "Settlement Documents") under seal
In support, the Defendants state that the Settlement and Release
Agreement contains a confidentiality clause. If the Court does not
allow for sealing of the Settlement Agreements, the Defendants say,
it would deprive the parties of their rights to enforce the
contractual legal obligations. They point out that the Plaintiffs'
allegations and the Defendants' primary defenses are being made
public, and the information they seek to keep confidential
primarily consists of the amount and distribution of the settlement
proceeds.
The Defendants cite Flynt v. Lombardi, 885 F.3d 508, 511 (8th Cir.
2018) to support that the court has the discretion to seal
documents if the public's right of access to court documents is
outweighed by the litigants' interests. But in Flynt, the court
found the personal and professional safety of an execution team in
carrying out a death penalty case outweighed the public right to
access certain information.
In the present case, the Defendants argue that the public's
interest is only slight where the Plaintiff's allegations and the
Defendants' defense are all publicly available, and that
"confidentiality is a critical factor in support of the public
policy encouraging litigants to settle claims without resort to
burdensome litigation." The Defendants conclude that their
interests in effectuating a mutually-beneficial, private resolution
of the claims in the case outweighs the public's general right to
freely access court documents.
The Court has, in the past, allowed for the sealing of settlement
documents in labor class actions such as this one. However, more
recently, it addressed an FLSA settlement in Loveless v. Ecotech,
LLC, No. 4:19cv2698 SNLJ, 2020 WL 1032239 (E.D. Mo. March 3, 2020).
The parties moved for in camera review of the settlement under
seal, and the Court sua sponte ordered the parties to show cause
why the settlement should be filed under seal. The parties
ultimately moved to withdraw their motion for in camera review.
Moreover, the Court has recently amended its Local Rules with
respect to the sealing of documents, recognizing and emphasizing
the public's right of access to most court documents. The parties
have largely followed the procedures outlined in the Rule. It
notes, however, that the parties' redaction of the Settlement
Documents appears improper. Local Rule 13.05(A)(4)(c) requires that
the movant file into the public record a copy of the subject
documents with only the specific information sought to be sealed
redacted from the document. The Defendants filed the Settlement
Documents with every single page of the document redacted. Their
motion states that their intention is to keep the settlement amount
and distribution of settlement proceeds confidential, so it is
unclear why they redacted the entire document.
In addition, the parties have not adequately explained why the
settlement amount and distribution should be kept confidential.
They state that it should be kept confidential because the
Settlement Agreement requires it. Judge Limbaugh finds it
unpersuasive that the parties' contractual decisions outweigh the
public's interest in open records -- particularly in the present
case, where the facts pertain to a dispute about labor/wage
practices.
Furthermore, it is entirely unclear how the amount and distribution
of settlement proceeds can practically be kept secret in the
context of a class action, which must be communicated to hundreds
of class members. The class members then must decide whether to opt
in to the Settlement, and to do so they surely must be informed as
to the amount and distribution of the proceeds. The parties do not
explain how these class members, who have not yet opted in to the
Agreement, can be bound to any confidentiality provision.
In light of the foregoing, Judge Limbaugh concludes that the
parties have not adequately justified their request to file the
Settlement Documents under seal. Accordingly, he denies the
Defendants' motion to file the Settlement Documents under seal.
A full-text copy of the Court's May 10, 2022 Memorandum & Order is
available at https://tinyurl.com/ubdn6rzn from Leagle.com.
DEMOULIN BROTHERS: Chalas Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Demoulin Brothers &
Company. The case is styled as Ana Chalas, individually, and on
behalf of all others similarly situated v. Demoulin Brothers &
Company, Case No. 1:22-cv-03972 (S.D.N.Y., May 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
DeMoulin -- https://demoulin.com/ -- manufactures a wide collection
of music & marching band uniforms and band accessories like shoes,
gloves, flags, etc.[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
DIALAMERICA MARKETING: Edwards Files Suit in S.D. California
------------------------------------------------------------
A class action lawsuit has been filed against DialAmerica
Marketing, Inc. The case is styled as Shelia Edwards, individually,
and on behalf of all others similarly situated v. DialAmerica
Marketing, Inc., Case No. 3:22-cv-00689-LL-BGS (S.D. Cal., May 16,
2022).
The nature of suit is stated as Other P.I.
DialAmerica -- https://www.dialamerica.com/corporate/ -- offers
domestic call center services for a variety of industries that
align with business needs for customer acquisition and
retention.[BN]
The Plaintiff is represented by:
Cody Alexander Bolce, Esq.
Laura Grace Van Note, Esq.
Scott Edward Cole, Esq.
SCOTT COLE & ASSOCIATES
555 12th Street, Suite 1725
Oakland, CA 94607
Phone: (510) 709-5839
Email: cab@colevannote.com
lvn@colevannote.com
sec@colevannote.com
DOCUSIGN INC: Pottetti Sues Over 42% Drop of Common Stock Price
---------------------------------------------------------------
MICHAEL POTTETTI, derivatively on behalf of Nominal Defendant
DOCUSIGN, INC., Plaintiff v. DANIEL D. SPRINGER, MAGGIE
WILDEROTTER, BLAKE J. IRVING, TERESA BRIGGS, ENRIQUE T. SALEM, INHI
CHO SUH, JAMES BEER, PETER SOLVIK, and CAIN HAYES, Defendants and
DOCUSIGN, INC., Nominal Defendant, Case No. 1:22-cv-00652-UNA (D.
Del., May 17, 2022) is a shareholder derivative action against the
Defendants for breach of fiduciary duty, aiding and abetting breach
of fiduciary duty, unjust enrichment, waste of corporate assets,
and violation of Section 10(b) of the Securities Exchange Act of
1934.
The case arises from the Defendants' alleged breach of their
fiduciary duties to DocuSign's shareholders by making false and/or
misleading statements, and failing to disclose material adverse
facts, about the company's business and operations. Specifically,
the Defendants misrepresented and/or failed to disclose: (i) much
of DocuSign's accelerated growth in 2020 and early 2021 was
attributable to COVID-19 pandemic restrictions rather than a
sustainable shift in demand for the company's services; (ii) demand
for DocuSign's services was, in fact, waning as COVID-19 pandemic
restrictions were being lifted; and (iii) as a result, the
Defendants' statements about the company's business, operations,
and prospects lacked a reasonable basis.
When the truth emerged, the price of DocuSign common stock
plummeted $98.73 per share, or more than 42 percent, from a close
of $233.82 per share on December 2, 2021, to close at $135.09 per
share on December 3, 2021, damaging investors, the suit added.
DocuSign, Inc. is a provider of eSignature services, with its
principal executive offices located in San Francisco, California.
[BN]
The Plaintiff is represented by:
Seth D. Rigrodsky, Esq.
Gina M. Serra, Esq.
Herbert W. Mondros, Esq.
RIGRODSKY LAW, P.A.
300 Delaware Avenue, Suite 210
Wilmington, DE 19801
Telephone: (302) 295-5310
Facsimile: (302) 654-7530
E-mail: sdr@rl-legal.com
gms@rl-legal.com
hwm@rl-legal.com
DRIVETIME AUTOMOTIVE: Wheeldon Files TCPA Suit in D. Arizona
------------------------------------------------------------
A class action lawsuit has been filed against DriveTime Automotive
Group Incorporated. The case is styled as Michelle Wheeldon,
individually and on behalf of all others similarly situated v.
DriveTime Automotive Group Incorporated, Case No. 2:22-cv-00852-GMS
(D. Ariz., May 17, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
DriveTime Automotive Group Inc. -- https://www.drivetime.com/ -- is
a leading independent retailer of used automobiles in the United
States.[BN]
The Plaintiff is represented by:
Ignacio J Hiraldo, Esq.
IJH LAW
1200 Brickell Ave., Ste. 1950
Miami, FL 33131
Phone: (786) 496-4469
Email: ijhiraldo@ijhlaw.com
- and -
Manuel Santiago Hiraldo
HIRALDO PA
401 E Las Olas Blvd., Ste. 1400
Ft Lauderdale, FL 33301
Phone: (954) 400-4713
Email: mhiraldo@hiraldolaw.com
DYE & DURHAM: Faces Class Action Over Competition Law Breaches
--------------------------------------------------------------
Cartel & Bui LLP and The Law Office of Calvin Goldman, Q.C. have
commenced a proposed class action against Dye & Durham Limited and
other defendants that the lawsuit alleges conspired together to
charge an artificially inflated fee for use of conveyancing
software used in real estate transactions.
Dye & Durham Limited is a provider of cloud-based software
solutions, including conveyancing software used to facilitate real
estate transactions in Canada, namely the Unity and Conveyancer
software platforms. The proposed class action alleges, among other
things, that the defendants conspired to obtain a dominant market
share of the conveyancing software market in Canada then
subsequently increased the fees for using its software platform to
anti-competitive levels, in contravention of the Competition Act.
The proposed class action is brought on behalf of all persons who
purchased, sold, mortgaged or refinanced real estate in Canada
since December 10, 2020, and paid for the use of the Unity or
Conveyancer software platform by way of paying the disbursement
incurred through their respective legal counsel on the
transaction.
If you believe you may be a class member and for further
information on the proposed class action, please go to
https://cartelbui.com/class-actions/dye-durham/, where you can
register to receive updates on the case. [GN]
EASTPOINT RECOVERY: Wins Bid for Summary Judgment in Ergas Suit
---------------------------------------------------------------
In the case, MATATIAOU ERGAS, individually and on behalf of all
others similarly situated, Plaintiff v. EASTPOINT RECOVERY GROUP,
INC. and UNITED HOLDINGS GROUP, LLC, Defendants, Case No.
20-CV-333S (W.D.N.Y.), Judge William M. Skretny of the U.S.
District Court for the Western District of New York granted
Eastpoint's Motion for Summary Judgment and denied the Plaintiff's
Motion for Summary Judgment.
I. Background
The lawsuit is a Fair Debt Collection Practices Act ("FDCPA" or
"the Act") class action. The Plaintiff alleges that Defendant
Eastpoint sent him a dunning letter in August 2019 claiming that he
owed almost $9,700 (mostly for charitable donations paid by credit
card) to an entity he did not recognize as his creditor, Defendant
United Holdings Group, LLC (or "UHG"). Because of this
misidentification, the Plaintiff claims the dunning letter violated
several provisions of the FDCPA and purportedly committed these
same violations against similarly situated New Yorkers.
The Defendant stated that, on Feb. 21, 2018, the Plaintiff paid
$4,500 to Soimach from his Visa account. The Plaintiff argues that
the nature of these transactions is not relevant to the subsequent
collection effort and the alleged violations of the FDCPA. The
Plaintiff made a second, charitable donation to Soimach on Feb. 22,
2018, for the same amount. The Defendant listed other transactions
the Plaintiff made on the Visa account in February 2018. The
Plaintiff began to fall behind on payment of his PenFed Visa
account and PenFed purportedly transferred or otherwise placed it
with Eastpoint for collection.
The Plaintiff commenced the class action against the Defendants for
the FDCPA violations.
On March 20, 2020, the Plaintiff sued Eastpoint and JTM Capital
Management, LLC. After JTM Capital Management moved to dismiss, the
Plaintiff filed and served an Amended Complaint. There, he sued
Eastpoint and UHG, terminating JTM Capital Management as a
Defendant.
The Defendants alleged "an obligation of the Plaintiff to pay money
arising out of a transaction in which the money, property,
insurance, or services which are the subject of the transaction are
primarily for personal, family, or household purposes." The
Plaintiff alleged that it was a "debt" as defined by FDCPA. This
debt was assigned or transferred and was in default when assigned.
The Defendants contacted the Plaintiff on the debt on Aug. 4, 2019.
This letter from Eastpoint stated that the original creditor was
Pentagon Federal Credit Union ("PenFed") and United Holdings Group
as "current creditor." The letter alleged $9,691.08 was due.
The Plaintiff alleges that 15 U.S.C. Section 1692g protects his
interests "to receive a clear, accurate and unambiguous validation
notice, which allows a consumer to confirm that he or she owes the
debt sought to be collected by the debt collector." Section 1692e
protects Plaintiff's interests "to be free from deceptive and/or
misleading communications from the Defendants."
The Amended Complaint alleges four counts and a class allegation.
The First Count alleges the Defendants violated 15 U.S.C. Section
1692g(a)(1) because the amount of the debt was not owed to the
Defendants. The Second Count alleges violations of Sections 1692e,
1692e(2)(A), 1692e(10) because the Defendants claimed a debt from
the Plaintiff it did not possess. The Plaintiff denies owing
$9,691.08. The Third Count claims violation of Section 1692g(a)(2)
because UHG did not own the debt and was not the correct name of
the creditor. The Fourth Count also alleges violation of Sections
1692e, 1692e(2)(A), 1692e(10) because the letter erroneously
claimed UHG owned the debt.
In the original and Amended Complaints, the Plaintiff also sued for
a purported class of all others similarly situated New Yorkers. He
alleges that the Defendants (within one year of the pleading) sent
similar collection letters for debts not actually owed to them to
this class of all such New York consumers.
In 2018, the Plaintiff opened a Visa credit card account with
PenFed. He claims he used this card only for personal expenses,
such as purchasing eyeglasses for himself and his children, paying
synagogue dues, and making charitable donations to Soimach Rely and
Support. The Defendant argues that considering charitable donations
to be debts under the FDCPA is a legal conclusion rather than a
statement of fact.
Before the Court are the parties' respective Motions for Summary
Judgment.
II. Discussion
In general, the Plaintiff argues that the Defendant violated the
FDCPA by claiming that UHG owned Plaintiff's debt when it did not.
The Defendant counters, first, that the Plaintiff lacks standing to
assert FDCPA claims. Second, the Defendant challenges whether most
of the Plaintiff's debt, donations to Soimach, are "debts"
protected from adverse collection activities under the Act. Third,
it claims it complied with FDCPA and the Plaintiff has not alleged
any injury from its single dunning letter.
Judge Skretny concludes that the Plaintiff has not alleged an
injury-in-fact, despite claiming emotional distress from receiving
a dunning letter that supposedly misidentified his creditor. Absent
an injury-in-fact (and not the injury in law of the statutory
violation), he lacks standing to sue. Even if the Plaintiff had
standing, he also failed to move for class certification for others
similarly situated, thus his class allegations are deemed
abandoned.
III. Conclusion
Therefore, the Defendant Eastpoint's Motion for Summary Judgment is
granted, and the Plaintiff's Motion for Summary Judgment. The Clerk
of Court is directed to close the case.
A full-text copy of the Court's May 10, 2022 Decision & Order is
available at https://tinyurl.com/48ry6cwz from Leagle.com.
EL ALACRAN SUPERMARKET: Fails to Pay Proper Wages, Contreras Says
-----------------------------------------------------------------
ADRIANA V. CONTRERAS, individually and on behalf of all others
similarly situated, Plaintiff v. EL ALACRAN SUPERMARKET INC., d/b/a
LA BENDICION SUPERMERCADO; and ISRAEL GONZALEZ, Defendants, Case
No. 6:22-cv-00910-WWB-EJK (M.D., Fla., May 17, 2022) seeks to
recover from the Defendants overtime compensation, liquidated
damages, costs, and reasonable attorney's fees under the Fair Labor
Standards Act.
Plaintiff Contreras was employed by the Defendants as assistant
manager.
EL ALACRAN SUPERMARKET INC., d/b/a LA BENDICION SUPERMERCAD
operates a chain of stores offering meats, produce, baked goods,
groceries, and fresh tortillas. [BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd. Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
Email: zep@thepalmalawgroup.com
EXTREMELY CLEAN: Fails to Properly Pay Wages, Roland Suit Claims
----------------------------------------------------------------
JENNIFER ROLAND, individually and on behalf of all others similarly
situated, Plaintiff v. EXTREMELY CLEAN FLOOR SERVICES, INC. and
SOUTHERN MAINTENANCE SERVICES INC., Defendants, Case No.
1:22-cv-01938-JPB (N.D. Ga., May 16, 2022) is a class action
against the Defendants for violation of the Fair Labor Standards
Act by failing to pay the Plaintiff and similarly situated
employees proper wages, including overtime.
The Plaintiff was employed by the Defendants as a commercial and
industrial cleaner from August 2018 until March 21, 2022.
Extremely Clean Floor Services, Inc. is a provider of cleaning
services, with its principal office located in Cumming, Georgia.
Southern Maintenance Services Inc. is a maintenance services
provider, with its principal office located in Cumming, Georgia.
[BN]
The Plaintiff is represented by:
Christopher B. Hall, Esq.
Gordon Van Remmen, Esq.
HALL & LAMPROS, LLP
400 Galleria Parkway, Suite 1150
Atlanta, GA 30339
Telephone: (404) 876-8100
Facsimile: (404) 876-3477
E-mail: chall@hallandlampros.com
gordon@hallandlampros.com
FAB NUTRITION: Chalas Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Fab Nutrition LLC.
The case is styled as Ana Chalas, individually, and on behalf of
all others similarly situated v. Fab Nutrition LLC, Case No.
1:22-cv-03969-PGG-RWL (S.D.N.Y., May 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
FAB CBD -- https://fabcbd.com/ -- is based out of Boston and offers
100% natural cannabis infused CBD drinks and edibles.[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
FIRST HIGH-SCHOOL: Frank R. Cruz Law Reminds of July 11 Deadline
----------------------------------------------------------------
The Law Offices of Frank R. Cruz on May 16 disclosed that a class
action lawsuit has been filed on behalf of persons and entities
that purchased or otherwise acquired First High-School Education
Group Co., Ltd. ("FHS" or the "Company") (NYSE: FHS) American
Depository Shares ("ADSs") between pursuant and/or traceable to the
Company's March 2021 initial public offering (the "IPO"). FHS
investors have until July 11, 2022, to file a lead plaintiff
motion.
In March 2021, FHS conducted its IPO, selling 7.5 million ADSs at
$10 per ADS.
On May 12, 2021, media reported that the impending crackdown by the
Chinese government on the online education industry would be more
drastic than previously reported. Anticipated regulations included
banning on-campus tutoring classes and weekend tutoring, as well as
industry-wide fee limitations.
Then, on July 23, 2021, China unveiled a sweeping overhaul of its
education sector, banning for-profit teaching and tutoring
companies.
On July 26, 2021, FHS issued a press release stating that it would
"follow the spirit of the Opinion and comply with all relevant
rules and regulations in providing high school education
services."
Then, on September 28, 2021, FHS announced its financial results
for the first half of 2021, revealing a 7.7% decrease in
year-over-year revenue.
Then, on April 5, 2022, FHS issued a press release announcing that
the Company had received a letter from the NYSE stating that the
Company was in non-compliance with the NYSE's listing requirements
because its total market capitalization and stockholders' equity
had fallen below compliance standards.
Then, on May 3, 2022, FHS disclosed that it would not be able to
timely file its annual report on Form NT 20-F.
By May 10, 2022, FHS ADSs closed below $1 per ADS, over 90% below
the IPO price, thereby injuring investors.
The complaint filed in this class action alleges that Defendants
made materially false and/or misleading statements, as well as
failed to disclose material adverse facts about the Company's
business, operations, and prospects. Specifically, Defendants
failed to disclose to investors: (1) that the new rules,
regulations, and policies to be implemented by the Chinese
government following the Two Sessions parliamentary meetings were
far more severe than represented to investors and posed a material
adverse threat to First High-School Education and its business; (2)
that contemplated Chinese regulations and rules regarding private
education were leading to a slowdown of government approval to open
new educational facilities which would have a negative effect on
First High-School Education's enrollment and growth; and (3) as a
result, Defendants' positive statements about the Company's
business, operations, and prospects were materially misleading
and/or lacked a reasonable basis at all relevant times.
If you purchased FHS securities during the Class Period, you may
move the Court no later than July 11, 2022, to ask the Court to
appoint you as lead plaintiff. To be a member of the Class you need
not take any action at this time; you may retain counsel of your
choice or take no action and remain an absent member of the Class.
If you purchased FHS securities, have information or would like to
learn more about these claims, or have any questions concerning
this announcement or your rights or interests with respect to these
matters, please contact Frank R. Cruz, of The Law Offices of Frank
R. Cruz, 1999 Avenue of the Stars, Suite 1100, Los Angeles,
California 90067 at 310-914-5007, by email to
info@frankcruzlaw.com, or visit our website at
www.frankcruzlaw.com. If you inquire by email please include your
mailing address, telephone number, and number of shares purchased.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
Contacts
The Law Offices of Frank R. Cruz, Los Angeles
Frank R. Cruz, 310-914-5007
fcruz@frankcruzlaw.com
www.frankcruzlaw.com [GN]
FLOWERS FOODS: Class Action Settlement in Noll Gets Final Nod
--------------------------------------------------------------
In the class action lawsuit captioned as TIMOTHY NOLL, individually
and, on behalf of similarly situated individuals, v. FLOWERS FOODS
INC, LEPAGE BAKERIES PARK STREET, LLC., and CK SALES CO., LLC, Case
No. 1:15-cv-00493-LEW (D. Maine), the Hon. Judge Lance E. Walker
entered an order granting joint motion for final approval of
proposed class action settlement and motion for attorney's fees,
expenses and service award.
As part of the Settlement Agreement, the Defendant agreed to pay
Plaintiffs' counsel $7,500,000 in attorney's fees and costs, which
the Plaintiffs' counsel now asks that I approve. The request is the
result of negotiations between Plaintiffs' counsel and Defendant,
which negotiations appear to have taken place concurrently with,
and as a part of, the overall settlement negotiation. The request
represents approximately 32 percent of the overall cash value of
the Settlement Agreement, though, if one were to include the
prospective value of future employment benefits in the calculus,
this share would be lower. The proposed award represents
approximately 2.2 times the calculated lodestar of $3,260,626.85
based on the value of services rendered to the class, which class
counsel argue is reasonable given the risk inherent in taking a
case such as this one, Judge Walker says.
Flowers Foods is a producer and marketer of packed bakery food. The
company operates 47 bakeries producing bread, buns, rolls, snack
cakes, pastries, and tortillas.
A copy of the Court's order dated May 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3yMZsWd at no extra charge.[CC]
FORD MOTOR: Bid to Strike Claims in Cashatt Suit Granted in Part
----------------------------------------------------------------
In the case, RANDALL CASHATT, et al., Plaintiffs v. FORD MOTOR
COMPANY, Defendant, Case No. 19-CV-05886-LK (W.D. Wash.), Judge
Lauren King of the U.S. District Court for the Western District of
Washington, Seattle:
(i) grants in part and denies in part Defendant Ford's Motion
to Strike Certain Allegations of Plaintiffs' Third
Amended Complaint; and
(ii) strikes the Plaintiffs' Cross Motion to Amend Complaint.
I. Background
The Plaintiffs in the case are Washington State Patrol Troopers who
were issued Ford Police Interceptor SUVs (model years 2011-2018) in
the course of their employment. They allege that after receiving
their vehicles, they "detected exhaust fumes within the passenger
compartment while driving," an issue that the Ford dealership was
apparently "unable to eradicate." They were nonetheless "advised
that the vehicles were safe to drive."
The Plaintiffs thereafter continued to notice exhaust fumes in the
passenger compartment and, as a result, "suffered headaches,
nausea, foggy thinking, and flu like symptoms." At least one
Plaintiff "suffered permanent neurological damage." Ford eventually
recalled all Interceptors manufactured between 2011 and 2018 due
to, at least according to the Plaintiffs, "a defective exhaust
and/or Heating, Ventilation, and Air Conditioning system that
allowed exhaust odor and gases, including carbon monoxide to enter
the passenger compartment of the vehicles while in use."
In August 2019, the Plaintiffs initiated a class action against
Ford in Clark County Superior Court for fraudulent concealment;
negligent misrepresentation; breach of express warranty; breach of
implied warranty of merchantability; violation of the Magnuson-Moss
Warranty Act, 15 U.S.C. Section 2301 et seq.; unjust enrichment;
violation of the Washington Consumer Protection Act (the "WCPA"),
Wash. Rev. Code Section 19.86 et seq.; and negligence.
Ford timely removed the case to federal district court on diversity
grounds and pursuant to the Class Action Fairness Act. It then
moved to dismiss the Plaintiffs' complaint under Federal Rule of
Civil Procedure 12(b)(6). Ford ultimately agreed, however, to allow
the Plaintiffs to file an amended complaint.
In their first amended complaint, the Plaintiffs reduced their case
to just two causes of action: Fraudulent concealment and violation
of the WCPA. Although they labeled the second cause of action as
one arising under the WCPA, their claim is one for violation of the
Washington Product Liability Act ("WPLA"), Wash. Rev. Code Section
7.72 et seq.
Ford soon moved to strike the class allegations in the Plaintiffs'
amended complaint. And it again moved to dismiss the Plaintiffs'
complaint under Rule 12(b)(6), arguing -- among other things --
that "the WPLA 'is the exclusive remedy for product liability
claims.'" The Court agreed with Ford on both motions. The Court
nonetheless permitted the Plaintiffs "one chance to sharpen their
class definition and allegations" in an amended complaint.
The Plaintiffs thereafter filed a second amended complaint. Again,
Ford moved to strike their class allegations and again the Court
granted the motion. Although the Court struck the Plaintiffs' class
allegations, their individual WPLA claims remained intact. The
Court accordingly gave the Plaintiffs until May 15, 2021 to file a
third amended complaint.
May 15th came and went. Ford's counsel reached out to the
Plaintiffs' counsel four days after the amended complaint deadline
inquiring as to whether they planned to file anything. Ford's
counsel further indicated that he planned to move to dismiss
Trooper Jeffrey Heath's claims against Ford because there were "no
allegations about Mr. Heath in the body of the Second Amended
Complaint." When the Plaintiffs' counsel failed to respond, Ford's
counsel sent another email indicating that the motion to dismiss
Trooper Heath's claims was "prepared." Ford's counsel asked whether
the Plaintiffs would "simply stipulate" to dismissal of those
claims to "avoid filing the motion."
The Plaintiffs' counsel finally responded by asking Ford's counsel
to "hold off" because she planned to work on the case that weekend.
Ford's counsel agreed to wait until June 2nd. He also offered to
consider stipulating to a third amended complaint if the
Plaintiffs' counsel provided a draft for review as soon as
possible. The Plaintiffs' counsel never responded.
On June 3, 2021, Ford moved to dismiss Trooper Heath's claims. The
Plaintiffs responded on June 18, 2021 by filing a motion for
extension of time to file the third amended complaint -- over a
month after the deadline for filing a third amended complaint had
passed. The Court denied the motion, and the Plaintiffs then filed
a cross-motion to amend their complaint. The Court granted the
Plaintiffs leave to file a third amended complaint in light of
Ford's acquiescence. In doing so, however, the Court was careful to
document the Plaintiffs' "carelessness" and made clear that it
expected "strict adherence to the Local Rules, the Federal Rules of
Civil Procedure, and all deadlines."
The Plaintiffs filed a third amended complaint. The complaint,
however, remains riddled with references to "class members" and
"class vehicles" -- allegations that the Court struck a year ago.
It likewise erroneously references the WCPA while citing the WPLA.
Ford highlighted all of this and more in yet another motion to
strike. This time Ford argues that the Plaintiffs' complaint
violates Federal Rule of Civil Procedure 8(a)(2)'s "short and plain
statement" requirement, and asks the Court to strike all redundant,
immaterial, and impertinent allegations.
The Plaintiffs responded to Ford's latest motion in another
improperly labeled "reply" brief. According to them, the "purpose"
of the third amended complaint "was to address the specific
personal injury suffered by Jeffrey Heath," and there "was no
motion or request to modify the third amended complaint as to any
class action language." The Plaintiffs agree that their complaint
needs to be "cleaned up." The precise extent of this "clean up,"
however, remains in dispute. The Plaintiffs have accordingly
cross-moved to file a fourth amended complaint adopting some -- but
not all -- of Ford's suggestions.
Ford urges the Court to deny the Plaintiffs' cross-motion and
strike all references to (1) the NHTSA investigation of Ford
Explorers, (2) Ford's Technical Service Bulletins ("TSBs"), and (3)
the Sanchez-Knutson class action settlement in Florida. It contends
that these portions of its motion to strike are the only issues
remaining for the Court's resolution. Last, Ford asks the Court to
require the Plaintiffs to file a fourth amended complaint "that
complies with Rule 8 and the Court's Order." And if the
Plaintiffs' fourth amended complaint "violates the Court's orders
and applicable rules," Ford suggests that the Court orders the
Plaintiffs to show cause why their action should not be dismissed
with prejudice.
II. Discussion
A. The Challenged Allegations
Ford contends that the Plaintiffs' allegations about the NHTSA
investigation, Ford's TSBs, and the Sanchez-Knutson settlement are
unnecessary to plead a violation of the WPLA, and are therefore the
kind of immaterial, impertinent, and redundant allegations that the
Court should strike. In support of this argument, Ford points to
Rule 8's pleading requirements and cites a fleet of Ninth Circuit
cases affirming dismissal of complaints that failed to adhere to
this standard. The Plaintiffs' complaint is, in Ford's view, "more
than sufficient" to put it on notice of their WPLA claim without
the challenged allegations.
Judge King holds that the allegations, if true, could show that
Ford knew or reasonably should have known about the defect, yet
failed to issue sufficient warnings. At minimum, they contextualize
the Plaintiffs' claim and the alleged exhaust defect specific to
Police Interceptors within Ford's broader investigation into
similar exhaust defects across multiple Explorer models
manufactured between 2011 and 2018.
Also critical here is Ford's failure to explain why these
allegations are immaterial or impertinent beyond its unadorned
contention that they are unnecessary to place it on notice of the
Plaintiffs' claim. Nor does Ford articulate how striking these
allegations would avoid needless expense or streamline the case.
This precludes the Court from striking the allegations.
True, the Plaintiffs' complaint is not a model of excellence, and
some of the details contained therein may ultimately prove to be
irrelevant. But the purpose of Rule 12(f) is not to micromanage
pleadings, and "manifestations of bad judgment in drafting
pleadings" likewise "fall short of the threshold that Rule 12(f)
contemplates."
B. Plaintiffs' Cross-Motion to Amend Complaint
The Plaintiffs improperly buried their cross-motion to amend their
complaint in their response brief and assigned it the same noting
date as Ford's motion to strike. It should have been filed
separately and noted for consideration no earlier than April 15th.
Judge King will not tolerate the Plaintiffs' continued disregard
for applicable rules. He accordingly strikes the cross-motion and
declines to consider the Plaintiffs' improper request for relief.
III. Conclusion
Judge King grants in part and denies in part Ford's Motion to
Strike and strikes the Plaintiffs' improper Cross-Motion to Amend
Complaint.
The Plaintiffs will file a fourth amended complaint within 14 days
of the Order. The amended complaint will both comply with the
Court's Order and incorporate the parties' agreed-upon changes,
meaning that it must omit all class allegations and wholesale
reproductions of consumer complaints to the NHTSA.
Repeatedly correcting the same deficiencies across four generations
of the Plaintiffs' complaint incurs unnecessary attorneys' fees and
wastes valuable Court time. Future deficiencies, including but not
limited to violations of this Court's Orders or applicable rules,
will result in sanctions. The counsel for the Plaintiffs will
provide a copy of the Order to her clients.
A full-text copy of the Court's May 10, 2022 Order is available at
https://tinyurl.com/3mwuu5cm from Leagle.com.
FREEDOM FINANCIAL: Foley & Lardner Discusses Ruling in TCPA Suit
----------------------------------------------------------------
Jaikaran Singh, Esq., and Kendall E. Waters, Esq., of Foley &
Lardner LLP, disclosed that a recent decision from the Ninth
Circuit illustrates that to be enforceable, website agreement terms
must be "reasonably conspicuous" and users must "manifest
unambiguous assent" to those terms. In Berman v. Freedom Financial
Network, LLC, No. 20-16900, 2022 U.S. App. LEXIS 9083 (9th Cir.
Apr. 5, 2022), plaintiffs filed a putative class action on behalf
of consumers who allegedly received unwanted calls or text messages
from defendants in violation of the Telephone Consumer Protection
Act (TCPA), 47 U.S.C. Section 227 et seq. Defendants moved to
compel arbitration, arguing that by using their websites the named
plaintiffs agreed to hyperlinked terms and conditions, including a
mandatory arbitration provision. The district court denied
defendants' motion, concluding that the webpages' content and
design did not conspicuously indicate the arbitration terms to
users.
A panel for the Ninth Circuit affirmed, holding there was no
reasonably conspicuous notice of the arbitration terms and users
did not manifest unambiguous assent to the websites' browsewrap
agreement.
In assessing whether there was reasonably conspicuous notice, the
majority opinion focused on the websites' particulars and noted the
"text disclosing the existence of the terms and conditions on these
websites [was] the antithesis of conspicuous." Because the terms
were in "a tiny gray font considerably smaller than the font used
in the surrounding website elements, and indeed in a font so small
that it [was] barely legible to the naked eye," the chosen design
actually drew "the user's attention away from the barely readable
critical text." The court also took issue with the websites'
display of hyperlinked terms in the same size and color as the
remaining terms and conditions. The court reasoned, "Consumers
cannot be required to hover their mouse over otherwise
plain-looking text or aimlessly click on words on a page in an
effort to ‘ferret out hyperlinks.'"
The court also found that the lack of reasonably conspicuous notice
was fatal to the manifestation of unambiguous assent to the terms.
To be binding, a website's notice of applicable terms must be so
conspicuous as to enable users to unambiguously consent to the
terms, particularly where users may not otherwise take express
affirmative action to accept the terms. While the websites stated,
"I understand and agree to the Terms & Conditions," the court noted
that this language was in "fine print," and the provision "did not
indicate to the user what action would constitute assent to those
terms and conditions." These deficiencies prevented formation of
what may have otherwise been an enforceable agreement, perhaps even
rising to the level of a preferable click-wrap agreement, because
"the textual notice was not conspicuous and did not explicitly
inform [plaintiffs] that by clicking on the ‘continue' button
they would be bound by the terms and conditions."
This decision may caution businesses with online sales to review
their website and undertake additional precautions, as necessary,
to ensure enforceability of their terms and conditions, including
arbitration provisions. To have a binding agreement based on
website use, a user must unequivocally agree to terms and
conditions. Enforceability will turn on notice to the user, as
notice is the linchpin for creating consumer assent. Reasonably
conspicuous notice must be so obvious that there can be no doubt of
the user's knowledge of the terms, such that it acts as a surrogate
for assent.
The Berman opinion is instructive and clarifies the standard for
enforceability of browsewrap agreements. While browsewrap
agreements remain enforceable, businesses with online sales can
strengthen their position by prominently displaying terms and
soliciting user's consent. If you have questions about the
enforceability of your website's agreements, you should consult
with your legal counsel. Our attorneys regularly counsel and advise
clients on these issues. [GN]
GENWORTH FINANCIAL: Court Tosses Counts V to VII in Burkhart Suit
-----------------------------------------------------------------
In the case, RICHARD F. BURKHART, WILLIAM E. KELLY, RICHARD S.
LAVERY, THOMAS R. PRATT, and GERALD GREEN, individually and on
behalf of all other persons similarly situated, Plaintiffs v.
GENWORTH FINANCIAL, INC., GENWORTH HOLDINGS, INC., GENWORTH NORTH
AMERICA CORPORATION, GENWORTH FINANCIAL INTERNATIONAL HOLDINGS, LLC
and GENWORTH LIFE INSURANCE COMPANY, Defendants, C.A. No.
2018-0691-JRS (Del. Ch.), the Court of Chancery of Delaware granted
the Defendants' motion to dismiss Counts V to VII.
I. Background
Defendant Genworth Life Insurance Co. ("GLIC"), among other
insurance products, writes a line of long-term care ("LTC")
insurance policies that provide coverage for the notoriously costly
burden of funding LTC expenses. Plaintiffs, a putative class of
GLIC LTC policyholders and GLIC insurance agents who sold LTC
policies for deferred commissions, allege that GLIC's corporate
parent, Genworth Financial, Inc. ("Genworth"), and certain of its
subsidiaries, fraudulently removed assets and capital support from
GLIC when it became clear that the LTC insurance line was
unprofitable. It is alleged that these fraudulent transfers have
jeopardized GLIC's ability to pay LTC claims to its policyholders
and LTC commissions to its insurance agents. Invoking Delaware's
Uniform Fraudulent Transfer Act ("DUFTA"), the Plaintiffs ask the
Court to unwind these transactions and restore GLIC to its previous
state of solvency.
Defendant Genworth Financial, Inc. ("Genworth"), sits atop the
Genworth corporate tree and wholly owns Genworth Holdings, Inc.
("Holdings"), which, in turn, owns Genworth Financial International
Holdings, LLC ("GFIH") and Genworth North America Corporation
("Genworth NA"). Genworth NA wholly owns Genworth Life Insurance
Co. ("GLIC")". GLIC is the LTC insurer that wrote the LTC policies
at issue in this case.9 GFIH owned interests in international
subsidiaries that conduct mortgage insurance business in Canada and
Australia that are implicated in the amended claims. Counts V to
VII of the Complaint are the claims at issue in this motion, and
they are asserted only against Genworth, Holdings and GFIH.
The Plaintiffs are holders of LTC insurance policies issued by GLIC
or insurance agents entitled to commissions earned from selling
GLIC policies. They assert claims on behalf of a putative class of
GLIC LTC policyholders and insurance agents.
The Plaintiffs' claims as initially pled survived a pleadings stage
dismissal bid. In that motion, the Defendants maintained that
Plaintiffs lacked standing to challenge the allegedly fraudulent
transfers since none of the putative class members had actually
been denied LTC coverage or commissions on sales of LTC policies.
The Court rejected that argument and held that Plaintiffs had
standing under DUFTA as "contingent creditors," but dismissed some
of Plaintiffs' claims as time-barred under the applicable statute
of limitations.
Having failed to attain dismissal, the Defendants allegedly
orchestrated a series of transactions to divert assets from the
transferees of the initial allegedly fraudulent transfers. By the
Plaintiffs' lights, these transactions were intended to limit or
eliminate the class's ability to secure remedies for the initial
fraudulent transfers. Specifically, they allege that a Genworth
subsidiary, Genworth Financial International Holdings, LLC
("GFIH"), an alleged transferee of the initial fraudulent transfer,
sold its interests in valuable international subsidiaries, which
comprised a substantial portion of its holdings. Those proceeds
moved up the corporate chain and were ultimately distributed to
affiliates as dividends. The Plaintiffs amended their complaint to
add three new claims challenging the distribution of these proceeds
as intentional and constructive fraudulent transfers.
Counts V to VII of the Complaint assert fraudulent transfer claims
against GFIH, Holdings and Genworth, and seek injunction orders
that unwind the transfers of the Canada and Australian mortgage
insurance assets and "restore to GFIH all of the value allegedly
fraudulently transferred to Genworth and Holdings by means of the
Canada/Australia MI Transfers." By definition, "claims" under DUFTA
are only available to "creditors," so the Plaintiffs assert they
are "contingent creditors" of GFIH based on their DUFTA claims
asserted in Counts III and IV where they challenge the Reinsurance
Termination.
II. Analysis
The Defendants have moved to dismiss the new claims on two grounds.
First, they argue the Plaintiffs have not asserted viable claims
under DUFTA because the Plaintiffs and GFIH do not have the
predicate creditor/debtor relationship necessary for DUFTA to
apply. To the extent the Plaintiffs are creditors (or contingent
creditors) of any Defendant entity, say the Defendants, they are
contingent creditors of GLIC based only on the underlying LTC
policies (as policyholders entitled to coverage or insurance agents
entitled to commissions). In this regard, the Defendants argue that
the Plaintiffs cannot use their DUFTA claims against GFIH (as
transferee of alleged fraudulent transfers) to establish the
debtor/creditor relationship because DUFTA, as a matter of law,
does not bestow creditor status to the DUFTA plaintiff. According
to them, DUFTA codifies remedies; it does not codify substantive
claims that, when proven and rendered to judgment, create judgment
creditor standing.
Second, even assuming the Plaintiffs could have creditor standing
under DUFTA for purposes of the new claims, because the Plaintiffs
seek only the remedies of unwinding certain transactions and
restoring others, as opposed to a payment of what is (or
potentially could be) owed them, their new DUFTA claims fail
because they are not, in fact, "claims" under the statute, defined
in part as a "right to payment." Without a "claim" that fits the
statutory definition, say the Defendants, the Plaintiffs are not
"creditors" under DUFTA and cannot, therefore, invoke that statute
for redress with respect to their newly asserted claims.
The parties have found no Delaware authority that directly
addresses the Defendants' first argument, and the Court's search
has fared no better. Courts in other jurisdictions, interpreting
similar statutes, have held that a plaintiff must have a right to
payment independent of a right created by the state's uniform
fraudulent transfer statute to qualify as "creditors" under the
statute. But the Plaintiffs have persuasively argued that a blanket
holding to that effect would not capture the statute's nuance and
would be in tension with official commentary to the uniform act
explaining the statute's purpose and reach.
The Defendants' second argument, however, has more purchase. In
connection with their amended claims, the Plaintiffs indisputably
do not seek monetary damages or even an equitable "right to
payment." Thus, the amended "claims" do not fit within the DUFTA's
definition of a "claim" and, as such, the Plaintiffs do not satisfy
the statutory definition of "creditor" as required to have standing
to pursue their amended claims under the statute. Hence, the
partial motion to dismiss must be granted.
III. Conclusion
The Court of Chancery concludes that Counts V to VII do not state
viable DUFTA claims. A "right to payment" is a necessary predicate
to a viable DUFTA claim and the Plaintiffs have failed to state a
claim in Counts V to VII as a matter of law. For the foregoing
reasons, the motion to dismiss Counts V to VII is granted.
A full-text copy of the Court's May 10, 2022 Opinion is available
at https://tinyurl.com/ytwkhhkf from Leagle.com.
Peter B. Andrews, Esquire -- pandrews@andrewsspringer.com -- Craig
J. Springer Esquire -- cspringer@andrewsspringer.com -- and David
M. Sborz Esquire -- dsborz@andrewsspringer.com -- of Andrews &
Springer LLC, Wilmington, Delaware and Edward F. Haber, Esquire,
Thomas V. Urmy, Jr., Esquire, Patrick J. Vallely Esquire, and
Michelle H. Blauner Esquire, of Shapiro Haber & Urmy LLP, in
Boston, Massachusetts, Attorneys for the Plaintiffs.
Daniel A. Dreisbach, Esquire -- dreisbach@rlf.com -- Srinivas M.
Raju, Esquire -- raju@rlf.com -- Susan M. Hannigan, Esquire --
hannigan@rlf.com -- Sarah A. Clark Esquire -- sclark@rlf.com -- and
Angela Lam Esquire -- lam@rlf.com -- of Richards, Layton & Finger,
P.A., in Wilmington, Delaware, and Reid L. Ashinoff Esquire, and
Gary Meyerhoff Esquire, of Dentons US LLP, in New York City,
Attorneys for the Defendants.
GEORGE LITTLE: Paluch Files Suit in W.D. Pennsylvania
-----------------------------------------------------
A class action lawsuit has been filed against George Little, et al.
The case is styled as James A. Paluch, Jr., Willie M. Harris, and
those similarly-situated v. George Little, Secretary, PA Dept. of
Corrections; Eric T. Armel, Facility Manager; Joseph Trempus,
Deputy Superintendent, Facility Mgmt.; SGT. Tyner, also known as:
LT. Tyner; SGT. Sheetz; SGT. Ohrman; Co1 Cavaliere, J. Burns
Helman, Rankin, Halkias, Coffman, Polito, B. Twardzik, Delsandro,
J. Thomas, Prison Guards; Case No. 2:22-cv-00720-CRE (W.D. Pa., May
16, 2022).
The nature of suit is stated as Prisoner Civil Rights (Prison
Condition).
George Little currently is serving as Acting Secretary at the
Pennsylvania Department of Corrections (DOC).[BN]
The Plaintiffs appear pro se.
GERBER PRODUCTS: Interim Co-Lead Counsel in Baby Food Suit Named
----------------------------------------------------------------
In the case, IN RE: GERBER PRODUCTS COMPANY HEAVY METALS BABY FOOD
LITIGATION. This Document Relates to ALL Cases, Master File No.
1:21-cv-269 (MSN/JFA) (E.D. Va.), Judge Michael S. Nachmanoff of
the U.S. District Court for the Eastern District of Virginia,
Alexandria Division, Steven J. Toll of Cohen Milstein Sellers &
Toll, PLLC, Rosemary M. Rivas of Gibbs Law Group LLP, and Janine L.
Pollack as Calcaterra Pollack LLP as Interim Co-Lead Counsel.
I. Background
These proceedings began on March 3, 2021 when Kathleen Keeter filed
suit against Defendant Gerber, alleging Gerber knowingly sold baby
food products containing dangerously high levels of heavy metals
yet marketed the products as healthy. Twenty-seven cases alleging
substantially similar claims were filed in or transferred to this
district.
The Court directed the Plaintiffs' counsel to file motions for the
appointment of interim lead counsel by Nov. 5, 2021. Oppositions
were due on Nov. 12, 2021 and any reply papers were due on Nov. 19,
2021. Three applications have been submitted.
Melissa S. Weiner (Pearson, Simon & Warshaw, LLP) and Hassan
Zavareei (Tycko & Zavareei LLP) have applied to serve as Interim
Co-Lead Counsel on behalf of the putative class, with an Executive
Committee composed of Michael R. Reese (Reese LLP), Rachel Soffin
(Milberg Coleman Bryson Phillips Grossman, PLLC); Annick M.
Persinger (Tycko & Zavareei LLP), and Gayle Blatt (Casey Gerry
Schenk Francavilla Blatt & Penfield LLP) as Interim Executive
Committee members; and Kristi C. Kelly (Kelly Guzzo PLC) as Liaison
Counsel. The Court refers to this counsel collectively as the "WZ
Slate."
Erin Green Comite (Scott+Scott Attorneys at Law LLP) and Steven L.
Bloch (Silver Golub & Teitell LLP) have applied to serve as Interim
Co-Lead Class Counsel with a Plaintiffs' Steering Committee
composed of Timothy J. Peter (Faruqi & Faruqi LLP), Melissa R.
Clark (Fegan Scott LLC), and Aaron Zigler (Zigler Law Group); and
Mark J. Krudys (The Krudys Law Firm, PLC) as Liaison Counsel. The
Court refers to this counsel collectively as the "Comite + Bloch
Slate."
Lastly, Steven J. Toll (Cohen Milstein Sellers & Toll PLLC),
Jeffrey W. Golan (Barrack, Rodos & Bacine), Rosemary M. Rivas
(Gibbs Law Group LLP), and Janine L. Pollack (Calcaterra Pollack
LLP) have applied to serve as Interim Co-Lead Counsel with an
Executive Committee composed of Rebecca A. Peterson (Lockridge
Grindal Nauen P.L.L.P.), Lori G. Feldman (George Gesten McDonald
PLLC), and Michael P. Canty (Labaton Sucharow LLP). The Court
refers to this counsel collectively as the "Keeter Movants Slate."
Defendant Gerber takes no position on the motions to appoint
Interim Class Counsel.
II. Discussion
After carefully reviewing the competing motions, Judge Nachmanoff
is confident that the attorneys and law firms involved are all
highly qualified, experienced, professional, and well-regarded in
their fields. Selection of any of these options would result in
counsel who would zealously advocate for the putative class.
Ultimately, however, he must choose interim class counsel best able
"to fairly and adequately represent the interests of the class."
A. Plaintiffs' Leadership Structure
As an initial matter, Judge Nachmanoff is not persuaded that it is
necessary or appropriate at this time to appoint an Executive
Committee or Plaintiffs' Steering Committee in addition to Interim
Class Counsel. The action does not call for an executive committee.
It is comprised of lawsuits with substantially identical common law
and state consumer law claims for unjust enrichment and deceptive
advertising that "are not so complex as to warrant a multi-firm
counsel structure." Nor do the Plaintiffs contend that group
members' interests or positions are dissimilar or otherwise
conflicting. At this stage of the litigation, Judge Nachmanoff
finds that appointing an executive committee is neither necessary
nor beneficial to the interests of the putative class in the case.
B. Appointment of Interim Co-Lead Counsel
Judge Nahcmanoff appoints Steven J. Toll of Cohen Milstein Sellers
& Toll, PLLC, Rosemary M. Rivas of Gibbs Law Group LLP, and Janine
L. Pollack as Calcaterra Pollack LLP as Interim Co-Lead Counsel.
The first factor the Court must consider under Fed. R. Civ. P.
23(g)(1) is the "work counsel has done in identifying or
investigating potential claims in the action." The Court also
considers involvement in the early stages of the litigation. The
second Rule 23(g)(1)(A) factor directs the Court to consider each
applicant's experience in class actions, complex litigation, and
the types of substantive claims asserted. The third Rule
23(g)(1)(A) factor addresses counsels' knowledge of the applicable
law. Fed. R. Civ. P. 23(g)(1)(A)(iii). The last Rule 23(g)(1)(A)
factor looks to the resources counsel will commit to the case. Fed.
R. Civ. P. 23(g)(1)(A)(iv).
Judge Nachmanoff opines that the first Rule 23(g)(1)(A) factor
weighs in favor of the Keeter Movants Slate, the second and third
factors are neutral, and the fourth factor weighs in favor of the
Keeter Movants Slate. He is persuaded that the interests of the
putative class members will be best served by appointing the Keeter
Movants Slate.
C. The Keeter Movants Slate
The Court's primary goal in determining the appropriate leadership
structure for class counsel is "to ensure that the litigation will
be managed efficiently and effectively without jeopardizing
fairness to the parties." A four-person co-lead structure as
proposed by the Keeter Movants Slate has the potential for
inefficiencies and cumbersome decision making. The action is a
"straightforward, single-defendant consumer action" requiring a
fairly simple structure. Accordingly, Judge Nachmanoff finds a
three-person co-lead structure is appropriate.
Steven J. Toll, Rosemary M. Rivas, and Janine L. Pollack together
will best represent the interests of the putative class. Ms. Rivas
and Ms. Pollack have significant experience and knowledge
litigating class action cases involving food mislabeling and
consumer fraud. Ms. Pollack, specifically, will bring to this case
her experience litigating similar claims in In re Plum Baby Food
Litigation. No. 21-cv-913-YGR (N.D. Cal.). Appointing Mr. Toll, Ms.
Rivas, and Ms. Pollack also advances the important goal of ensuring
that counsel provide a broad spectrum of experience in their
representation of the putative class. Further, Mr. Toll is a member
of the Virginia Bar, has extensive familiarity with the Court's
practices, and has offices close to the Court.
Although all the attorneys proposed in the Keeter Movants Slate are
no doubt skilled, Judge Nachmanoff finds a three-person structure
is appropriate. However, he expects that the members of the
selected leadership structure will work with all the attorneys
involved in this consolidated action to benefit from their
experience and wisdom.
III. Conclusion
For the reasons he stated, Judge Nachmanoff appoints Steven J.
Toll, Rosemary M. Rivas, and Janine L. Pollack as Interim, Co-Lead
Class Counsel, and otherwise denies the motions for appointment of
Interim Class Counsel.
An appropriate order will be issued.
A full-text copy of the Court's May 10, 2022 Memorandum Opinion is
available at https://tinyurl.com/2n5xzxh8 from Leagle.com.
GHOST LLC: Helems Sues Over Dietary Supplements' Deceptive Label
----------------------------------------------------------------
JESSE HELEMS, individually and on behalf of all others similarly
situated, Plaintiff v. GHOST LLC DBA GHOST LIFESTYLE, Defendant,
Case No. 3:22-cv-00674-L-AGS (S.D. Cal., May 13, 2022) is a class
action against the Defendant for unjust enrichment and violations
of California Business & Professions Code and the Consumer Legal
Remedies Act.
According to the complaint, the Defendant is engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
Ghost Greens Superfood supplement, a dietary supplement. The
Defendant labels and advertises the product as if they were
exclusively naturally flavored. In reality, the Defendant's product
contains d-l malic acid, a synthetic petrochemical. The Defendant
uses the artificial petrochemically derived d-l malic acid in its
product to create this sweet and tart flavor but pretends
otherwise, conflating natural and artificial flavorings,
misbranding the product and deceiving consumers. Had the Plaintiff
and Class members known the truth, they would not have purchased
the product or would have only been willing to pay a substantially
reduced price, says the suit.
Ghost LLC, doing business as Ghost Lifestyle is a manufacturer of
dietary supplements, with its principal place of business in
Chicago, Illinois. [BN]
The Plaintiff is represented by:
Charles C. Weller, Esq.
CHARLES C. WELLER, APC
11412 Corley Court
San Diego, CA 92126
Telephone: (858) 414-7465
Facsimile: (858) 300-5137
E-mail: legal@cweller.com
GINNY'S INC: Loadholt Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Ginny's, Inc. The
case is styled as Christopher Loadholt, on behalf of himself and
all others similarly situated v. Ginny's, Inc., Case No.
1:22-cv-03980 (S.D.N.Y., May 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Ginny's -- https://www.ginnys.com/ -- makes cookware, appliances,
dinnerware, furniture, bed and bath, home décor and gifts that are
affordable.[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
GODIVA CHOCOLATIER: Faegre Drinker Discusses Settlement Objections
------------------------------------------------------------------
Jeffrey S. Jacobson, Esq., -- jeffrey.jacobson@faegredrinker.com --
and Anthony F. Jankoski, Esq. -- anthony.jankoski@faegredrinker.com
-- of Faegre Drinker, disclosed that the last thing the parties to
a class action settlement want to see is an objection from state
Attorneys General (AGs). AG objections to class action settlements
are relatively rare and courts tend to give AG objections more
weight than objections from private parties. Not all AG objections
are successful, however, and in the recent consumer fraud case of
Hesse v. Godiva Chocolatier, Inc., No. 1:19-cv-972-LAP (S.D.N.Y.),
a six-state objection filed by the AGs of Florida, Idaho, Maryland,
New Jersey, Ohio, and Utah failed to persuade Judge Loretta Preska
to reject the proposed settlement.
Hesse concerned Godiva's use of the word "Belgium" in labeling and
promoting its products. According to the complaint, this practice
led consumers to believe, incorrectly, that Godiva's chocolates are
made exclusively in Belgium and to pay higher prices for these
products than they otherwise would have. The parties' proposed
settlement of those claims is fairly standard stuff. Anyone who
purchased Godiva chocolate products between 2015 and last year
could file claims to recover $1.25 per purchase. Class members with
proof of purchase could recover up to $25 (for 20 purchases); those
without proof were capped at $15 (for 12 purchases). Plaintiffs
claimed actual damages to be $0.46 per purchase, so they
characterized this relief as more than full recovery. [GN]
GREATBANC TRUST: Settles Stock Plan Class Action for $16.5MM
------------------------------------------------------------
Jacklyn Wille, writing for Bloomberg Law, reports that a class
action challenging GreatBanc Trust Co.'s handling of a Midwestern
real estate conglomerate's employee stock plan settled for $16.5
million, plan participants said in an Illinois federal court
filing.
The settlement, announced on May 16, resolves a 171-person class
action accusing GreatBanc, McBride & Son Capital Inc., and related
entities and individuals of orchestrating a series of transactions
that harmed McBride employees who had retirement savings in the
company's stock plan. The parties reached a deal after multiple
mediation sessions in 2021 and 2022, according to the participants'
filing in the US District Court for the Northern District of
Illinois. [GN]
GROUP US: Munoz Sues Over Unpaid Wages for Restaurant Bussers
-------------------------------------------------------------
OSVALDO MUNOZ, individually and on behalf of all others similarly
situated, Plaintiff v. THE GROUP US MANAGEMENT LLC d/b/a THE GROUP
NYC, LA GRANDE BOUCHERIE LLC d/b/a LA GRAND BOUCHERIE, d/b/a
KAISEKI ROOM, OLIO RESTAURANTS LLC d/b/a OLIO E PIU, and EMIL
STEFKOV, Defendants, Case No. 1:22-cv-04038 (S.D.N.Y., May 17,
2022) is a class action against the Defendants for violations of
the Fair Labor Standards Act and the New York Labor Law including
unpaid wages due to invalid tip credit; unpaid wages, including
overtime, due to time-shaving; and illegally retained gratuities.
The Plaintiff was hired by the Defendants to work as a busser at La
Grande Boucherie restaurant located at 145 West 53rd Street, New
York, New York from February 2021 until December 2021.
The Group US Management LLC, doing business as The Group NYC, is a
restaurant owner and operator, with a principal place of business
located at 108 7th Avenue South, New York, New York.
La Grande Boucherie LLC, doing business as La Grand Boucherie and
Kaiseki Room, is a restaurant owner and operator located at 145
West 53rd Street, New York, New York.
Olio Restaurants LLC, doing business as Olio E Piu, is a restaurant
owner and operator located at 3 Greenwich Avenue, New York, New
York. [BN]
The Plaintiff is represented by:
CK Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, 8th Floor
New York, NY 10011
Telephone: (212) 465-1188
Facsimile: (212) 465-1181
HAIER US APPLIANCE: Jones Suit Transferred to S.D. New York
-----------------------------------------------------------
The case styled as Cheryl Jones, individually and on behalf of all
others similarly situated v. Haier US Appliance Solutions, Inc.
doing business as: GE Appliances, Case No. 6:22-cv-00409 was
transferred from the U.S. District Court for the District of Middle
District of Florida, to the U.S. District Court for the Southern
District of New York on May 17, 2022.
The District Court Clerk assigned Case No. 1:22-cv-04036-ALC to the
proceeding.
The nature of suit is stated as Contract Product Liability.
Haier Appliances -- https://www.haierappliances.com/ -- creates
reliable, affordable air conditioners, refrigerators, televisions,
washers and home appliances designed for small space living.[BN]
The Plaintiff is represented by:
Harper T. Segui, Esq.
WHITFIELD BRYSON
217 Lucas Street, Suite G
Mount Pleasant, SC 29464
Phone: (919) 600-5000
Fax: (919) 600-5035
Email: gmason@masonllp.com
- and -
Jonathan Betten Cohen, Esq.
Rachel Soffin, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
800 S. Gay Street, Suite 1100
Knoxville, TN 37929
Phone: (865) 247-0080
Fax: (865) 522-0049
Email: jcohen@milberg.com
The Defendant is represented by:
William J. Judge, Jr., Esq.
Carolina Yvonne Blanco, Esq.
HILL WARD HENDERSON, PA
101 E Kennedy Blvd-Ste 3700
PO Box 2231
Tampa, FL 33602-5195
Phone: (813) 221-3900
Fax: (813) 221-2900
- and -
Marissa S. Ronk, Esq.
WHEELER TRIGG O'DONNELL, LLP
370 17th Street, Suite 4500
Denver, CO 80202
Phone: (303) 244-1800
HARMON STORES: Fails to Timely Pay Wages, Georgiou Suit Claims
--------------------------------------------------------------
KATERINA GEORGIOU, individually and on behalf of all others
similarly situated, Plaintiff v. HARMON STORES, INC., Defendant,
Case No. 2:22-cv-02861 (E.D.N.Y., May 16, 2022) brings this class
action complaint against the Defendant for its alleged willful
violation of the New York Labor Law.
The Plaintiff has worked for the Defendant as a cashier and store
associate from approximately October 2015 to September 2020 at a
Harmon Face Values store location in Mineola, New York.
The Plaintiff alleges the Defendant of failing to pay her and other
similarly situated manual workers on a timely basis. Instead of
paying them on a weekly basis, the Defendant paid them every other
week.
As a result of the Defendant's alleged unlawful pay practice, the
Plaintiff was injured in that she was temporarily deprived of money
owed to her, and she could not invest, earn interest on, or
otherwise use these monies that were rightfully hers. Thus, on
behalf of herself and all other similarly situated manual workers,
the Plaintiff seeks to recover untimely paid wages as liquidated
damages, reasonable attorneys' fees and costs, and pre- and
post-judgment interest.
Harmon Stores, Inc. operates a chain of stores under the Harmon
Face Values brand offering assorted health and beauty products.
[BN]
The Plaintiff is represented by:
Steven John Moser, Esq.
MOSER LAW FIRM, P.C.
5 East Main Street
Huntington, NY 11743
Tel: (631) 824-0200
E-mail: steven.moser@moserlawfirm.com
HELLOFRESH SE: Faces Class Action Over Alleged ADA Violations
-------------------------------------------------------------
Top Class Actions reports that HelloFresh failed to design its
website so that it would be fully accessible to blind and visually
impaired individuals, a new class action lawsuit alleges.
Plaintiff Lamar Brown claims HelloFresh denies equal access to the
goods and services it provides by not making its website compatible
with screen-reading software used by the blind and visually
impaired to browse the internet.
Brown claims HelloFresh's website has "thousands of access
barriers" that make it "difficult if not impossible" for blind and
visually impaired individuals to use it.
"The access barriers make it impossible for blind and visually
impaired users to even complete a transaction on the website," the
HelloFresh class action states.
HelloFresh Class Action Alleges Website Has ‘Exclusively Visual
Interface'
In the class action lawsuit, Brown claims that, instead of using
available technology that would allow blind and visually impaired
individuals to access the website, HelloFresh instead created an
"exclusively visual interface."
Because of this, Brown argues that while sighted customers can
browse and make transactions on the website, blind people must
"rely on sighted companions to assist them in accessing and
purchasing on HelloFresh.com."
Brown claims HelloFresh is in violation of the Americans with
Disabilities Act, New York State Human Rights Law, New York State
Civil Rights Law and New York City Human Rights Law.
Brown wants to represent a nationwide class and New York subclass
of blind and visually impaired individuals who have been denied
access to goods and services offered on hellofresh.com.
He is demanding a jury trial and requesting declaratory relief
along with compensatory damages for himself and all class members.
In October, a federal judge gave final approval for a $14 million
class action settlement made by HelloFresh to resolve claims it
hounded consumers with marketing calls.
The plaintiff is represented by Mars Khaimov of Mars Khaimov Law,
PLLC.
The HelloFresh Website Class Action Lawsuit is Brown v. Grocery
Delivery E-Services USA, Inc., Case No. 1:22-cv-03905, in the U.S.
District Court for the Southern District of New York. [GN]
HOMEAGLOW INC: Gomes Wage-and-Hour Suit Goes to E.D. California
---------------------------------------------------------------
The case styled JEANETTE GOMES, individually and on behalf of all
others similarly situated v. HOMEAGLOW INC. and DOES 1 through 30,
inclusive, Case No. STK-CV-UOE-2022-2619, was removed from the
Superior Court of California for the County of San Joaquin to the
U.S. District Court for the Eastern District of California on May
17, 2022.
The Clerk of Court for the Eastern District of California assigned
Case No. 2:22-at-00494 to the proceeding.
The case arises from the Defendant's alleged violations of the
California's Unfair Competition Law and the California Labor Code
including unfair competition, failure to pay minimum wages, failure
to pay overtime wages, failure to provide meal periods, failure to
provide rest periods, failure to provide accurate itemized wage and
hour statements, failure to reimburse employees for required
expenses, and waiting time penalties.
Homeaglow Inc. is a house cleaning service provider, with its
principal place of business in Austin, Texas. [BN]
The Defendant is represented by:
Andrew M. Spurchise, Esq.
LITTLER MENDELSON, P.C.
900 Third Avenue
New York, NY 10022-3298
Telephone: (212) 583-9600
Facsimile: (212) 832-2719
E-mail: aspurchise@littler.com
- and –
Anthony G. Ly, Esq.
LITTLER MENDELSON, P.C.
2049 Century Park East, 5th Floor
Los Angeles, CA 90067-3107
Telephone: (310) 553-0308
Facsimile: (310) 553-5583
E-mail: aly@littler.com
ILLINOIS: Monitor Graham Gets Free PACER Access in Monroe v. IDOC
-----------------------------------------------------------------
In the case, JANIAH MONROE, et al., Plaintiffs v. STEVE MEEKS, et
al., Defendant(s), Case Number: 18-cv-00156-NJR (S.D. Ill.), Judge
Nancy J. Rosenstengel of the U.S. District Court for the Southern
District of Illinois entered an Order exempting Julie Graham, MFT,
from the payment of fees for access via PACER to the electronic
case files maintained in the Court, to the extent such use is
incurred in the course of the action only.
On May 10, 2022, the Court appointed Ms. Graham as a Special
Master/Monitor to assess and advise the Court and the parties on
the Defendants' compliance with certain requirements set forth in
the Court's Preliminary Injunctions. Review of documents filed in
the case is necessary for Ms. Graham to carry out her
court-appointed duties.
Judge Rosenstengel finds that an exemption from the fees imposed by
the Electronic Public Access fee schedule adopted by the Judicial
Conference of the United States Courts is warranted for Ms. Graham.
As an appointed Special Master/Monitor in this class action
prisoner civil rights case, she falls within the class of users
listed in the fee schedule as being eligible for a fee exemption.
Judge Rosenstengel is satisfied that an exemption is necessary in
order to avoid unreasonable burdens and to promote public access to
information.
Accordingly, Ms. Graham is exempted from the payment of fees for
access via PACER to the electronic case files maintained in the
Court, to the extent such use is incurred in the course of the
action only. She will not be exempt from the payment of fees
incurred in connection with other uses of the PACER system in the
Court.
Additionally, the following limitations apply:
1. the fee exemption applies only to and is valid only for the
purpose stated above;
2. the fee exemption applies only to the electronic case files
of the Court that are available through the PACER system;
3. by accepting the exemption, Ms. Graham agrees not to sell
for profit any data obtained as a result of receiving the
exemption;
4. Ms. Graham is prohibited from transferring any data
obtained as a result of receiving the exemption, except that she
may transfer data to the counsel for the parties and to the Court
as necessary to carry out her monitoring duties;
5. the exemption is valid only until the action is
terminated.
The exemption may be revoked at the discretion of the Court at any
time.
Ms. Graham must register for a separate pro bono account with PACER
at https://pacer.uscourts.gov. After registering, the PACER Service
Center will issue further written instructions to activate the
account. If needed, Ms. Graham may contact the PACER Service
Representative at 800-676-6856 for assistance.
The Clerk of Court is directed to email a copy of the Order to the
PACER Service Center.
A full-text copy of the Court's May 10, 2022 Order is available at
https://tinyurl.com/2p8jsbw9 from Leagle.com.
INDIANA: 7th Circuit Dismisses Child Welfare System Class Action
----------------------------------------------------------------
Holly V. Hays, writing for Indianapolis Star, reports that the
Seventh Circuit Court of Appeals has dismissed a class-action
lawsuit demanding sweeping changes to Indiana's child welfare
system.
The lawsuit was filed in 2019 on behalf of 10 minor children
involved in Child In Need of Services (CHINS) cases, all of whom
were in out-of-home or residential placements at the time of
filing.
The suit alleged the state, via the Department of Child Services,
violated the children's due process rights, their first, ninth and
fourteenth amendment rights, the Adoption Assistance and Child
Welfare Act of 1980 and the American with Disabilities Act and
Rehabilitation Act. (Many of these claims were previously denied by
a lower-court judge.)
More broadly, the plaintiffs alleged Indiana's child welfare system
"inflicts further trauma upon an already vulnerable population."
Last fall, after a district court denied the state's motion to
dismiss, Indiana officials asked the Court of Appeals for review,
in part citing a 1971 ruling that says federal courts do not have
jurisdiction over a state-administered system.
The case was argued before a panel of three judges -- Frank
Easterbrook, David Hamilton and Diane Wood -- in late March. In an
opinion issued on May 16, Easterbrook agreed with the state's
argument.
Easterbrook wrote the plaintiffs' attorneys "contended that a
federal court could insist that some provisions in state law, which
counsel thinks underenforced, be fully enforced. This sounds like a
problem that CHINS judges can fix, if the state laws and
regulations are pointed out to them.
"But whether or not a CHINS judge would step in, a federal court
cannot. It is improper for a federal court to issue an injunction
requiring a state official to comply with state law."
DCS spokeswoman Noelle Russell said in a written statement that DCS
was pleased by the decision: "These important issues involving
Hoosier children are best decided by our own state courts, and DCS
has full confidence in Indiana judges to act in the best interest
of Indiana children to meet the individualized needs of each case.
DCS remains committed to the protection of Indiana's most
vulnerable and will continue to provide the right care to the right
child at the right time."
Lawsuit alleged violations of ADA rights
In the 2019 complaint, the plaintiffs also argued children with
disabilities are underserved by the agency because of violations to
their rights protected by the ADA, particularly when they are sent
to a residential setting rather than an in-home placement.
According to data provided by DCS, the agency had over 1,000
children placed in residential settings in 2017. There are
currently only 480 children in such placements as of April.
Many of the allegations in the original filing point to a June 2019
assessment of Indiana's foster care system that found the state had
high levels of removals and court involvement, which in turn caused
high caseloads and turnover rates.
The plaintiffs sought sweeping changes to DCS practices and
policies, including:
-- Requiring DCS to maintain caseload standards and that its
verification process be public information.
-- Requiring the agency to conduct an annual case review to
ensure children are receiving timely permanence and the degree of
maltreatment and to make these reviews public information.
-- Preventing the separation of siblings when they enter the
child welfare system "unless it is contrary to the best interest of
any of the children to be placed together with his or her
siblings."
-- Preventing a child's placement in a congregate facility due
to a lack of available foster homes.
-- Taking all steps possible to ensure a child is placed in a
safe, adequate foster home and, if necessary, to find an
"appropriate adoptive placement."
In its decision, the appeals court ruled the plaintiffs lacked
jurisdiction to bring such a suit -- of the 10 original plaintiffs,
the majority had been adopted or had turned 18, effectively
resolving their cases. In the remaining two instances, legal
proceedings were already underway by the time of filing, meaning
the arguments concerning pre-litigation investigations did not
apply.
The plaintiffs were represented by attorneys at Indiana Disability
Rights and A Better Childhood, a nonprofit providing services to
children who have experienced abuse and trauma in the child welfare
system.
Both Indiana Disability Rights Executive Director Melissa Keyes and
A Better Childhood Executive Director Marcia Lowry said their
organizations are considering their legal options as they plan next
steps.
"We are disappointed in the decision by the federal appeals court,
which leaves children in foster care in Indiana without access to
the federal court to enforce their constitutional and federal
rights, a right that is available in many other parts of the
country," Lowry said in a written statement. "Unfortunately, the
court's decision did not adequately address our arguments. Given
the status of the child welfare system in Indiana, this right is
particularly critical."
According to data provided by DCS, Indiana had over 10,000 children
in out-of-home placements in April 2022. [GN]
IRONNET INC: Bernstein Liebhard Reminds of June 21 Deadline
-----------------------------------------------------------
Did you lose money on investments in IronNet? If so, please visit
IronNet, Inc. Shareholder Class Action Lawsuit or contact Peter
Allocco at (212) 951-2030 or pallocco@bernlieb.com to discuss your
rights.
Bernstein Liebhard, a nationally acclaimed investor rights law
firm, reminds investors of the deadline to file a lead plaintiff
motion in a securities class action lawsuit that has been filed on
behalf of investors who purchased or acquired the securities of
IronNet, Inc. ("IronNet" or the "Company") (NYSE: IRNT) between
September 15, 2021 and December 15, 2021, inclusive (the "Class
Period"). The lawsuit was filed in the United States District Court
for the Eastern District of Virginia and alleges violations of the
Securities Exchange Act of 1934.
IronNet designs and develops solutions for cyber-attacks. The
Company offers IronDefense, a network traffic analysis platform
that delivers scalable behavioral analysis and integrated
packet-level cyber hunt to detect advanced threats, and IronDome, a
collective defense solution that delivers machine-speed visibility
of potential threat campaigns targeting participant industry peers.
The Company also provides a suite of technologies that provide
real-time threat assessment and updates, behavioral modeling, big
data analytics, and proactive responses, as well as consulting and
training programs to protect against current and emerging threats.
IronNet's security solutions include collective defense, network
traffic analysis, and cyber assessment tools. The Company serves
energy and utilities, financial services, healthcare and life
sciences, defense, and public sector industries.
On August 27, 2021, IronNet became a publicly traded company via a
merger (the "Merger") with LGL Systems Acquisition Corp. ("LGL"), a
blank check company otherwise known as a special purpose
acquisition vehicle. In anticipation of the Merger vote, on August
10, 2021, IronNet updated its financial forecasts "[d]ue to shifts
in the anticipated closing of several new customer contracts." The
Company forecasted fiscal year 2022 ("FY 2022") (ended January 31,
2022) revenues of $43-$45 million and annual recurring revenue
("ARR") of $75 million.
On September 14, 2021, after market close, defendants issued a
press release entitled "IronNet Announces Fiscal Second Quarter
2022 Financial Results," which announced disappointing revenue of
$6.1 million for Q2 2022 (ended July 31, 2021) compared to $7.9
million for Q2 2021, which missed expectations by $1.3 million.
However, IronNet also announced Q2 2022 ARR of $24.1 million
compared to $19.5 million in Q2 2021 and reaffirmed its FY 2022
revenue guidance of $43-45 million and ARR guidance of $75 million.
The Company's stock price immediately skyrocketed 38%, or $8.81 per
share, from a close of $23.32 per share on September 14, 2021 to a
close of $32.13 per share on September 15, 2021. By September 16,
2021, IronNet's stock price had doubled, reaching an intra-day high
of $47.50 per share.
On December 15, 2021, after market close, Defendants issued a press
release entitled "IronNet Reports Third Quarter Fiscal 2022
Financial Results," in which they slashed IronNet's FY 2022
guidance, which they announced shortly before the Merger vote and
reaffirmed just three months earlier. On this news, the price of
IronNet's stock declined more than 31% to close at $4.66 per share
on December 16, 2021.
Plaintiff alleges that Defendants' statements were materially false
and misleading when made because IronNet: (i) materially overstated
its business and financial prospects; (ii) was unable to predict
the timing of significant customer opportunities which constituted
a substantial portion of its publicly-issued FY 2022 financial
guidance; and (iii) had not established effective disclosure
controls and procedures to reasonably ensure its public disclosures
were timely, accurate, complete, and not otherwise misleading.
If you wish to serve as lead plaintiff, you must move the Court no
later than June 21, 2022. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. Your ability to share in any recovery doesn't require
that you serve as lead plaintiff. If you choose to take no action,
you may remain an absent class member.
If you purchased IRNT securities, and/or would like to discuss your
legal rights and options please visit IronNet, Inc. Shareholder
Class Action Lawsuit or contact Peter Allocco at (212) 951-2030 or
pallocco@bernlieb.com.
Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion
for its clients. In addition to representing individual investors,
the Firm has been retained by some of the largest public and
private pension funds in the country to monitor their assets and
pursue litigation on their behalf. As a result of its success
litigating hundreds of lawsuits and class actions, the Firm has
been named to The National Law Journal's "Plaintiffs' Hot List"
thirteen times and listed in The Legal 500 for ten consecutive
years.
Contact Information:
Peter Allocco
Bernstein Liebhard LLP
https://www.bernlieb.com
(212) 951-2030
pallocco@bernlieb.com [GN]
ISABELLA GERIATRIC: Fails to Take COVID-19 Measures, Lieder Says
----------------------------------------------------------------
TIMOTHY LIEDER, as proposed administrator of the estate of JOANNE
LIEDER, deceased, individually and on behalf of all others
similarly situated, Plaintiff v. ISABELLA GERIATRIC CENTER, INC.,
Defendant, Case No. 154254/2022 (N.Y. Sup. Ct., May 17, 2022) is a
class action against the Defendant for violation of Sections 2801-d
and 2803 of New York's Public Health Law, wrongful death, and gross
negligence.
The case arises from the Defendant's failure to provide, among
other things, adequate infection control, supervision, treatment,
dignity, hygiene, and medical attention to its elderly residents
during the COVID-19 pandemic. As a result of the Defendant's
alleged failures, some of the residents at its facility were
infected and died from COVID-19 infection, including the Decedent.
Isabella Geriatric Center, Inc. is an elderly care facility, with
its principal place of business at 515 Audubon Avenue, New York.
[BN]
The Plaintiff is represented by:
Michael E. Duffy, Esq.
DUFFY & DUFFY, PLLC
1370 RXR Plaza
Uniondale, NY 11556
Telephone: (516) 394-4200
Facsimile: (516) 394-4229
JBS USA: Andrade Negligence Suit Removed to S.D. Iowa
-----------------------------------------------------
The case styled MARIA ANDRADE, as administrator of the estate of
JOSE ANDRADE-GARCIA and HERMINIA ANDRADE, individually and on
behalf of all others similarly situated v. JBS USA, JBS LIVE PORK,
LLC, SWIFT PORK COMPANY, TIM SCHELLPEPER, CHRIS GADDIS, BOB KREBS,
NICHOLAS WHITE, TODD CARL, BRADLEY COMSTOCK, NICHOLAS AGUIRRE,
TYLER DEVICK, NIKKI RICHARDSON, CAMERON BRUETT, and JANE/JOHN DOES
1-20, Case No. 02641 LACI011441, was removed from the Iowa District
Court for Marshall County, Colorado, to the U.S. District Court for
the Southern District of Iowa on May 13, 2022.
The Clerk of Court for the Southern District of Iowa assigned Case
No. 4:22-cv-00164-RGE-SHL to the proceeding.
The case arises from the Defendants' alleged gross negligence and
fraudulent misrepresentation by failing to: (1) properly screen
employees at a meat processing plant for COVID-19, (2) isolate sick
employees, (3) socially distance employees, (4) install physical
barriers to separate workers, (5) develop and implement appropriate
cleaning and disinfection practices, (6) provide employees with
appropriate personal protective equipment, and (7) require
employees to wear face coverings.
JBS USA is a global food company, headquartered in Colorado.
JBS Live Pork, LLC is a producer of meat products based in
Colorado.
Swift Pork Company is a producer of meat products based in
Colorado. [BN]
The Defendants are represented by:
Adam D. Zenor, Esq.
ZENOR KUEHNER, PLC
111 East Grand Avenue, Suite 400
Des Moines, IA 50309
Telephone: (515) 650-9005
Facsimile: (515) 206-2654
E-mail: adam@zenorkuehner.com
- and –
Clayton E. Bailey, Esq.
BAILEY BRAUER PLLC
Campbell Centre I
8350 N. Central Expressway, Suite 650
Dallas, TX 75206
E-mail: cbailey@baileybrauer.com
JHPDE FINANCE I: Rosenberg Files FDCPA Suit in D. New Jersey
------------------------------------------------------------
A class action lawsuit has been filed against JHPDE Finance I, LLC.
The case is styled as Yakov Rosenberg, individually and on behalf
of all others similarly situated v. JHPDE Finance I, LLC, Case No.
2:22-cv-02841 (D.N.J., May 16, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
JHPDE Finance I, llc is a buyer of defaulted debts, such as old
credit card debts originally owed to Citibank and other
creditors.[BN]
The Plaintiff is represented by:
Robert Thomas Yusko, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: ryusko@steinsakslegal.com
JUNIPER HOSPITALITY: McKinney Files ADA Suit in C.D. California
---------------------------------------------------------------
A class action lawsuit has been filed against Juniper Hospitality,
LLC, et al. The case is styled as Aisha McKinney, individually and
on behalf of all others similarly situated v. Juniper Hospitality,
LLC, Does 1-10, inclusive, Case No. 2:22-cv-03032-MEMF-AGR (C.D.
Cal., May 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Juniper Hospitality, LLC is located in La Jolla, California and is
part of the Traveler Accommodation Industry.[BN]
The Plaintiff is represented by:
Azar Mouzari, Esq.
Nilofar Nouri, Esq.
BEVERLY HILLS TRIAL ATTORNEYS PC
468 North Camden Drive Suite 238
Beverly Hills, CA 90210
Phone: (310) 858-5567
Fax: (424) 286-0963
Email: azar@bhtrialattorneys.com
nilofar@bhtrialattorneys.com
K HEALTH INC: Chalas Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against K Health, Inc. The
case is styled as Ana Chalas, individually, and on behalf of all
others similarly situated v. K Health, Inc., Case No. 1:22-cv-03961
(S.D.N.Y., May 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
K Health -- https://khealth.com/ -- is a data-driven digital
primary care app that uses AI to deliver personalized primary
care.[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
KANSAS HEART: Wins Leave to Amend RICO Complaint v. Executives
--------------------------------------------------------------
In the case, KANSAS HEART HOSPITAL, LLC, Plaintiff, v. STEPHEN S.
SMITH, et al., Defendants, Case No. 21-cv-1115-KHV-TJJ (D. Kan.),
Magistrate Judge Teresa J. James of the U.S. District Court for the
District of Kansas granted the Plaintiff's Second Motion for Leave
to Amend.
I. Background
In this action, the Hospital alleges Defendants Stephen Smith and
Joyce Heismeyer violated their fiduciary duties and the Racketeer
Influenced and Corrupt Organization Act, 18 U.S.C. Section 1961 et
seq., ("RICO") by using their positions as corporate officers to
divert money from the Hospital to themselves and to Hospital
President, Gregory F. Duick, M.D. The Hospital alleges the
Defendants were involved in several unauthorized transactions
between February 2015 and August 2020. These claims involve
allegations of fraud, which the Hospital acknowledges it must state
with particularity.
The Court set a deadline of Oct. 8, 2021 for the parties to move to
amend their pleadings or join additional parties. The Plaintiff
timely sought and was granted leave to file the First Amended
Complaint, which deleted certain allegations, distinguished between
transfers to plans and payments made by plans, and modified its
damage claims.
The Plaintiff now seeks to file a Second Amended Complaint,
asserting it has learned during recent discovery and investigation
that allegations in the current pleading are incomplete and
unclear. It seeks to remedy the issue in the following manner:
(1) the Plaintiff proposes to change two paragraphs of
factual allegations concerning discussion during a July 20, 2020
Hospital Management Committee meeting regarding CARES Act funds.
Based on draft meeting minutes, the Plaintiff had alleged a failure
to disclose by Defendants and Dr. Duick. Having learned new
information while preparing witnesses for deposition, it now seeks
to amend these paragraphs to allege an affirmative disclosure by
Dr. Duick.
(2) the Plaintiff asserts it learned while preparing responses
to discovery requests that Defendants may have used a private or
commercial interstate carrier to allegedly transfer funds.
Plaintiff seeks to include such carriers to the means of
transmission it alleges Defendants used to commit mail fraud.
(3) the Plaintiff seeks to delete certain allegations and
correspondingly reduce its damage claims.
(4) Finally, the Plaintiff seeks to amend certain allegations
regarding Defendant Smith's deferred compensation plan based on new
information the Hospital has obtained concerning payments he
received.
The Plaintiff does not seek to add parties, advance new legal
theories, or state additional claims.
II. Analysis
The Plaintiff acknowledges it must first satisfy the good cause
requirement of Rule 16 before attempting to demonstrate its
entitlement to amendment under Rule 15.
A. Rule 16
In addressing the Rule 16 standard, the Plaintiff contends the
information it learned while preparing witnesses for deposition and
gathering documents responsive to discovery requests constitutes
good cause to amend. In their opposition, the Defendants cite two
cases from this District to support their argument that clarifying
or correcting allegations is not a sufficient reason to grant a
motion to amend.
Judge James holds that neither case is helpful to the Defendants'
position. She finds that the Plaintiff has demonstrated good cause
to justify its untimely motion. The Plaintiff learned of the basis
for its proposed amendment during discovery and in preparing its
witnesses for deposition. The Defendants point to no earlier source
of the information, and the Court has no reason to question the
Plaintiff's assertion.
Judge James also finds relevant the content of the proposed
amendment, which is narrowly focused and does not seek to advance
new legal theories, add claims, or join new defendants. The
Plaintiff even seeks to decrease its claimed damages, which
presumably inures to Defendants' benefit.
Having found the Plaintiff satisfied Rule 16, Judge James turns to
the remaining analysis.
B. Rule 15
With respect to Rule 15, the Plaintiff asserts in conclusory
fashion that its proposed amendment is not futile, unduly delayed,
prejudicial, or made in bad faith. The only factor the motion
specifically addresses is delay, arguing the Plaintiff moved
promptly to clarify its factual allegations when it obtained new
information during discovery. The Defendants contend they would be
prejudiced by the amendment, as significant written discovery has
proceeded since the Plaintiff filed its First Amended Complaint,
depositions are beginning, and additional discovery on the matters
is inevitable.
Judge James finds that the Defendants do not indicate which
discovery requests or initial disclosures they are referring to,
and their sweeping claim of prejudice provides no specific
discovery issues for the Court to assess. He concludes that,
consistent with Rule 15, justice requires granting the Plaintiff's
motion.
III. Conclusion
Judge James granted the Plaintiff's Second Motion for Leave to
Amend. In accordance with D. Kan. Rule 15.1(b), the Plaintiff will
electronically file and serve its Second Amended Complaint within
five business days of the date of the Order.
A full-text copy of the Court's May 10, 2022 Memorandum & Order is
available at https://tinyurl.com/bd7uat4h from Leagle.com.
KAP7 INTERNATIONAL: Feliz Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Kap7 International,
Inc. The case is styled as Roberta Feliz, individually, and on
behalf of all others similarly situated v. Kap7 International,
Inc., Case No. 1:22-cv-03986 (S.D.N.Y., May 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
KAP7 International -- https://www.kap7.com/ -- is the premier water
polo store providing swimsuits, equipment & more high-quality
aquatic gear for men, women & children.[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
L'OREAL USA: Cauchi Sues Over Presence of PFAS on Mascara Products
------------------------------------------------------------------
SONIA CAUCHI and STEPHANIE BRANTON, individually and on behalf of
all others similarly situated, Plaintiffs v. L'OREAL USA, INC.,
Defendant, Case No. 1:22-cv-03926 (S.D.N.Y., May 13, 2022) is a
class action against the Defendant for violation of New York
General Business Law, breach of express warranty, fraudulent
concealment, and unjust enrichment.
According to the complaint, the Defendant is engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
its waterproof mascara line of products. The Defendant does
specifically list both the active and inactive ingredients of these
products but fail to disclose that the products contain per and
polyfluoroalkyl substances (PFAS). Despite the widespread knowledge
of the dangers of PFAS, the Defendant still did not include on the
products' packaging or ingredients lists the presence or risk of
containing PFAS in the products. The Plaintiffs and Class members
lost the entire benefit of their bargain when what they received
was a waterproof mascara product contaminated with known harmful
toxins, says the suit.
L'Oreal USA, Inc. is a cosmetics company, with its principal place
of business in New York, New York. [BN]
The Plaintiffs are represented by:
Jason P. Sultzer, Esq.
Joseph Lipari, Esq.
Daniel Markowitz, Esq.
THE SULTZER LAW GROUP P.C.
270 Madison Avenue, Suite 1800
New York, NY 10016
Telephone: (845) 483-7100
Facsimile: (888) 749-7747
E-mail: sultzerj@thesultzerlawgroup.com
liparij@thesultzerlawgroup.com
markowitzd@thesultzerlawgroup.com
- and –
David C. Magagna Jr., Esq.
Charles E. Schaffer, Esq.
LEVIN SEDRAN & BERMAN
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Telephone: (215) 592-1500
E-mail: dmagagna@lfsblaw.com
cschaffer@lfsblaw.com
LAKEVIEW LOAN: Faces Data Breach Class Actions
----------------------------------------------
Class action lawsuits are being filed now related to the Lakeview
Loan Servicing Data Breach. If your mortgage is or was serviced by
Lakeview, or if you received notice of the data breach, you may be
able to participate in these lawsuits.
The law firm Price Armstrong and its experienced class action
attorneys are pursuing lawsuits on behalf of customers in states
across the country, including New York, Illinois, North Carolina,
Alabama, and Pennsylvania. [GN]
LOVE YOU FOODS: Chalas Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Love You Foods LLC.
The case is styled as Ana Chalas, individually, and on behalf of
all others similarly situated v. Love You Foods LLC, Case No.
1:22-cv-03964 (S.D.N.Y., May 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Love You Foods LLC (FBOMB) -- https://www.dropanfbomb.com/ --
provides food supplements. The Company offers fuels, oils, salt,
dressings, carbs, and other related nutrition products.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
LUGG INC: Berry Files Suit in Cal. Super. Ct.
---------------------------------------------
A class action lawsuit has been filed against Lugg, Inc., et al.
The case is styled as Ronald Berry, individually and on behalf of
all, others similarly situated v. Lugg, Inc., Does 1 through 10,
inclusive, Case No. CGC22599635 (Cal. Super. Ct., San Francisco
Cty., May 16, 2022).
The case type is stated as "Other Non-Exempt Complaints (Class
Action Complaint)."
Lugg, Inc. -- https://lugg.com/ -- is a provider of logistics
delivery services intended to offer on-demand moving service.[BN]
The Plaintiff is 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
MAXIMUS INC: Court Grants Thomas' Bid for Equitable Tolling
-----------------------------------------------------------
In the case, SHAREY THOMAS, et al., individually and on behalf of
all others similarly situated, Plaintiffs v. MAXIMUS, INC.,
Defendant, Civil No. 3:21cv498 (DJN) (E.D. Va.), Judge David J.
Novak of the U.S. District Court for the Eastern District of
Virginia, Richmond Division, grants the Plaintiffs' Opposed Motion
for Equitable Tolling.
I. Background
Plaintiffs Sharey Thomas, Jennifer Gilvin, Laura Vick, Shannon
Garner, Nyeshia Young and Olga Ramirez bring the action
individually and on behalf of all other similarly situated
individuals against Defendant Maximus, alleging violations of
Sections 206, 207 and 216(b) of the Fair Labor Standards Act of
1938, as amended 29 U.S.C. Section 216(b) ("the FLSA"); the Kansas
Wage Payment Act ("KWPA"), Kan. Stat. Ann. Section 44-313, et seq.;
the Kentucky Wage and Hour Act ("KWHA" or "Kentucky Act"), Ky. Rev.
Stat. Ann. Sections 337.010, et seq.; the Louisiana Revised
Statutes ("LWPA" or "Louisiana Wage Payment Act"), La. Rev. Stat.
Section 23:631, et seq., Louisiana Civil Code, La. Civ. Code Arts.
2315, 2298 (collectively, "Louisiana Law"); Mississippi common law;
Missouri common law, Mo. Rev. Stat. Sections 290.500, et seq.;
Texas common law; and Virginia common law. Plaintiffs assert their
FLSA claims as a collective action under Section 16(b) of the FLSA,
29 U.S.C. Section 216(b), and assert their state law claims as
class actions under Federal Rule of Civil Procedure 23.
On July 30, 2021, the Plaintiffs filed their original Complaint.
They filed their Amended Complaint on Nov. 2, 2021. In Count One,
the Plaintiffs bring a collective action against the Defendant
under the FLSA. In Counts Two through Nine, the Plaintiffs bring
class actions under the laws of Florida, Kansas, Kentucky,
Louisiana, Mississippi, Missouri, Texas and Virginia. Based on
these claims, the Plaintiffs, on their own behalf and on behalf of
the Putative Class Members, seek class certification under the FLSA
and pursuant to the relevant state laws, unpaid wages, costs and
expenses, attorneys' fees, pre- and post-judgment interest, a
service award for Plaintiffs and accounting of Defendant's books
and records.
On Nov. 3, 2021, the Plaintiffs moved for conditional certification
and notice to putative class members pursuant to the FLSA, 29
U.S.C. Section 216(b). The Defendant opposed the Motion, arguing
that the Court should not utilize the two-stage certification
process that most federal courts apply in FLSA collective actions
pursuant to Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987).
According to the Defendant, the Court should apply the one-step
process that the Fifth Circuit recently outlined in Swales v. KLLM
Transport Services, 985 F.3d 430 (5th Cir. 2021). Under that
standard, district courts must pay closer attention to whether
putative collective members are truly similarly situated at the
outset of the case and authorize preliminary discovery, if needed.
The Defendant also made a brief request to certify the question of
what legal standard to apply to FLSA collective certification for
an interlocutory appeal to the Fourth Circuit.
On Feb. 25, 2022, the Court conducted a conference call with the
parties. During the call, the Court informed the parties that it
intended to conditionally certify the collective under the two-step
certification standard. It also stated that, after conditional
certification, the Defendant could move to certify an interlocutory
appeal to the Fourth Circuit to clarify the correct standard for
FLSA collective certification. The Court further elaborated that it
was "highly inclined" to certify an interlocutory appeal on this
issue. Additionally, the Plaintiffs raised the possibility of
tolling the statute of limitations for the putative class members
during the stay pending resolution of the interlocutory appeal. The
Court informed the Plaintiffs that they could also file a motion on
this issue after it ruled on conditional certification.
A few days after the conference call, the Court granted the
Plaintiffs' Motion for Conditional Certification. The Order stayed
all aspects of the February 28 Order and accompanying Memorandum
Opinion, except for the production of the putative collective
members' contact information, pending resolution of the
certification issue. It also permitted the Defendant and the
Plaintiffs to move to certify an interlocutory appeal and to move
to toll the statute of limitations, respectively, within 14 days.
Accordingly, the Defendant moved to certify an interlocutory appeal
to determine the proper certification standard. Likewise, the
Plaintiffs moved to equitably toll the statute of limitations for
the putative collective members from Feb. 28, 2022, the date that
the Court conditionally certified the class, through the potential
interlocutory appeal, at which point the Court would lift its
stay.
On March 28, 2022, the Defendant responded to the Motion. The
Plaintiffs did not reply, and their time to do so has expired. On
May 9, 2022, the Court heard argument on this Motion, among others.
During the hearing and in a separate order, the Court granted the
Defendant's motion to certify the February 28 Order for
interlocutory appeal. The Motion is now ripe for review.
II. Discussion
The Plaintiffs argue that extraordinary circumstances exist in this
case to warrant equitable tolling. Specifically, they have
diligently sought to preserve the FLSA claims of the putative
collective members, but the Court's stay of the case prevents them
from sending notice to these individuals, which therefore limits
their ability to opt in. For that reason, they request that the
Court tolls the statute of limitations for the period beginning
when the Court issued the February 28 Order granting conditional
certification and staying the case through the return of the case
from the Fourth Circuit. The Defendant responds that equitable
tolling conflicts with the FLSA's statutory limits, and that the
Plaintiffs have failed to demonstrate any extraordinary
circumstances that merit equitable tolling.
Judge Novak agrees with the Plaintiffs and will grant the Motion
for equitable tolling. He opines that the combination of the
Court's Feb. 28, 2022 stay and certification for interlocutory
appeal prevents putative opt-in plaintiffs from receiving notice of
the lawsuit, and their claims may consequently become time barred.
For that reason, the putative opt-in plaintiffs face extraordinary
circumstances beyond their control that justify equitable tolling.
Other federal courts have granted equitable tolling under similar
circumstances.
III. Conclusion
For the reasons he set forth, Judge Novak grants the Plaintiffs'
Opposed Motion for Equitable Tolling and equitably tolls the FLSA
statute of limitations from Feb. 28, 2022, the date that the Court
stayed the action, until the date that the Court lifts the stay.
An appropriate Order will be issued.
The Clerk is directed to file a copy of the Memorandum Opinion
electronically and notify all counsel of record.
A full-text copy of the Court's May 10, 2022 Memorandum Opinion is
available at https://tinyurl.com/2p924ahn from Leagle.com.
MAXIMUS INC: Court Strikes Supplemental Evidence in Thomas Suit
---------------------------------------------------------------
In the case, SHAREY THOMAS, et al., individually and on behalf of
all others similarly situated, Plaintiffs v. MAXIMUS, INC.,
Defendant, Civil No. 3:21cv498 (DJN) (E.D. Va.), Judge David J.
Novak of the U.S. District Court for the Eastern District of
Virginia, Richmond Division, issued a Memorandum Opinion:
1. granting the Defendant's Opposed Motion to Amend Order to
Provide for Certification of an Interlocutory Appeal;
2. denying the Defendant's Opposed Motion for Partial
Reconsideration; and
3. granting the Plaintiff's Motion to Strike Supplemental
Evidence.
I. Introduction
Plaintiffs Sharey Thomas, Jennifer Gilvin, Laura Vick, Shannon
Garner, Nyeshia Young and Olga Ramirez bring the action
individually and on behalf of all other similarly situated
individuals against Defendant Maximus, alleging violations of
Sections 206, 207 and 216(b) of the Fair Labor Standards Act of
1938, as amended 29 U.S.C. Sectio 216(b) ("the FLSA"); the Kansas
Wage Payment Act ("KWPA"), Kan. Stat. Ann. Section 44-313, et seq.;
the Kentucky Wage and Hour Act ("KWHA" or "Kentucky Act"), Ky. Rev.
Stat. Ann. Sections 337.010, et seq.; the Louisiana Revised
Statutes ("LWPA" or "Louisiana Wage Payment Act"), La. Rev. Stat.
Section 23:631, et seq., Louisiana Civil Code, La. Civ. Code Arts.
2315, 2298 (collectively, "Louisiana Law"); Mississippi common law;
Missouri common law, Mo. Rev. Stat. Section 290.500, et seq.; Texas
common law; and Virginia common law. Plaintiffs assert their FLSA
claims as a collective action under Section 16(b) of the FLSA, 29
U.S.C. Section 216(b), and assert their state law claims as class
actions under Federal Rule of Civil Procedure 23.
The matter now comes before the Court on the following motions by
both parties: The Defendant's Motion to Certify an Interlocutory
Appeal, the Defendant's Motion for Partial Reconsideration, and the
Plaintiff's Motion to Strike.
II. Background
The Defendant, a Virginia multinational corporation, operates call
centers throughout the United States and primarily serves federal,
state and local governments as a "Citizen Engagement Center." The
Plaintiffs and the Putative Collective Members work as hourly
call-center employees who assist the customers of the Defendant's
clients. They bring both the collective action to recover overtime
wages, liquidated damages and other penalties pursuant to the FLSA
and class actions pursuant to various state laws to recover unpaid
straight time, overtime wages and other penalties.
In total, the Plaintiffs claim that they regularly complete one to
two hours of unpaid, off-the-clock work beyond their normal 40-hour
workweek. Employers subject to the FLSA must compensate employees
at rates at least one-and-one-half times their regular rates of
compensation for all hours worked in excess of forty hours per
week.
On July 30, 2021, the Plaintiffs filed their original Complaint.
They filed their Amended Complaint on Nov. 2, 2021. In Count One,
the Plaintiffs bring a collective action against Defendant under
the FLSA. In Counts Two through Nine, the Plaintiffs bring class
actions under the laws of Florida, Kansas, Kentucky, Louisiana,
Mississippi, Missouri, Texas and Virginia. Based on these claims,
the Plaintiffs, on their own behalf and on behalf of the Putative
Collective Members, seek class certification under the FLSA and
pursuant to the relevant state laws, unpaid wages, costs and
expenses, attorneys' fees, pre- and post-judgment interest, a
service award for the Plaintiffs and accounting of Defendant's
books and records.
On Nov. 3, 2021, the Plaintiffs moved for conditional certification
and notice to putative collective members pursuant to the FLSA, 29
U.S.C. Section 216(b). The Defendant opposed the Motion, arguing
that the Court should not utilize the two-stage certification
process that most federal courts apply in FLSA collective actions,
pursuant to Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987).
(Opp'n to Mot. for Conditional Certification at 10-11). According
to Defendant, the Court should apply the one-step process that the
Fifth Circuit recently outlined in Swales v. KLLM Transport
Services, 985 F.3d 430 (5th Cir. 2021). Under that standard,
district courts must more strictly scrutinize whether putative
collective members are truly similarly situated at the outset of
the case and authorize preliminary discovery, if needed. The
Defendant also made a brief request to certify the question of what
legal standard to apply to FLSA collective certification for an
interlocutory appeal to the Fourth Circuit.
On Feb. 25, 2022, the Court conducted a conference call with the
parties. A few days after the conference call, the Court granted
the Plaintiffs' Motion for Conditional Certification and permitted
the Defendant to move for certification of an interlocutory appeal
within fourteen days. It also stayed all aspects of the February 28
Order and accompanying Memorandum Opinion pending resolution of the
certification issue, except the production of the personal contact
information of the putative collective members.
Since then, the parties have filed four motions. The Memorandum
Opinion addresses three of them, and a separate Memorandum Opinion
addresses the fourth, which concerns tolling the FLSA statute of
limitations. On March 14, 2022, the Defendant moved to amend the
Court's February 28 Order to provide for certification of an
interlocutory appeal on the following question: What legal standard
should courts apply when deciding whether to certify a collective
action under the Fair Labor Standards Act? On March 28, 2022, the
Plaintiffs responded to this Motion, and on April 4, 2022, the
Defendant replied.
Additionally, on March 14, 2022, the Defendant moved for partial
reconsideration of the Court's oral order denying it leave to
supplement the record for the interlocutory appeal. The Plaintiffs
responded on March 28, 2022, and the Defendant replied on April 4,
2022.
Finally, on March 28, 2022, the Plaintiff moved to strike the
evidence that the Defendant sought to add to the record for the
interlocutory appeal. The Defendant responded on April 8, 2022, and
the Plaintiffs replied on April 14, 2022.
On April 13, 2022, the parties jointly requested a hearing on the
Motion for Partial Reconsideration and the Motion to Strike. On May
9, 2022, the Court heard argument on these two Motions. All three
Motions addressed are now ripe for review.
III. Discussion
A. Motion to Certify an Interlocutory
28 U.S.C. Section 1292(b) provides that a district judge may
certify for interlocutory appeal any "order not otherwise
appealable under this section" when the judge is "of the opinion
that such order [1] involves a controlling question of law [2] as
to which there is a substantial ground for difference of opinion
and [3] that an immediate appeal from the order may materially
advance the ultimate termination of the litigation." The relevant
court of appeals may then, "in its discretion, permit an appeal to
be taken from such order."
Judge Novak analyzes explains that Section 1292(b) requires the
Defendant to satisfy all three elements. He opines that because the
case presents a controlling question of law, it satisfies Section
1292(b)'s first requirement for certifying an interlocutory appeal.
He also opines that a substantial ground for difference of opinion
exists that warrants interlocutory certification. Lastly, he opines
that reversal of the Court's decision conditionally certifying the
class and abrogation of the two-step certification process outcome
would require the Court to more closely scrutinize the similarities
between the putative collective members -- or lack thereof -- much
earlier in the case, thereby increasing the likelihood that it
would decline to issue notice.
Because the case satisfies all three statutory factors, Judge Novak
will certify its February 28 Order for interlocutory appeal on the
question of the proper standard to apply for collective
certification under the FLSA.
B. Motion for Partial Reconsideration
Next, the Defendant asks the Court to reconsider its oral order
denying it leave to supplement the record with evidence obtained
during discovery under Rule 54(b), with an eye to allowing the
Fourth Circuit to see its evidence of the "potentially dispositive
dissimilarities among the Plaintiffs." It argues that, in Swales,
the Fifth Circuit relied on a factual record developed with "eleven
depositions, over 19,000 documents produced, and even expert
evidence." According to the Defendant, supplementation would
provide the Fourth Circuit with a similarly developed record so
that it can determine the proper legal standard for FLSA
certification and ensure that the Court has an adequate record on
remand.
The Plaintiffs respond that no judgment exists for the Court to
reconsider, because the Defendant did not properly move to
supplement the record under the Local Rules. They urge the Court to
treat the Defendant's Motion as an attempted end-run around the
supplementation requirements of Federal Rule of Appellate Procedure
10 and the Court's previous instruction not to supplement. They
also argue that even if the Court had issued a judgment that it
could reconsider, the Defendant has not satisfied Rule 54(b), and
that supplementing the record on appeal would be procedurally
improper and substantively unfair.
Judge Novak holds that the purpose of Rule 10(e) is not to allow a
district court to add to the record on appeal matters that did not
occur there in the course of the proceedings leading to the
judgment under review. In the case, the 5,656 pages of discovery
materials that the Defendant seeks to add to the record were not
before the Court when it reviewed the Plaintiffs' Motion for
Conditional Certification and issued the February 28 Order
conditionally certifying the collective. Thus, Judge Novak declines
to reconsider the Court's oral order barring the Defendant from
supplementing the record.
C. Motion to Strike.
Finally, and relatedly, the Plaintiffs move to strike the
Defendant's supplemental discovery material attached to its
Memorandum in Support of its Motion for Partial Reconsideration.
They argue that, even if the Court denies the Defendant's Motion
for Partial Reconsideration, the materials would still comprise
part of the record should the Fourth Circuit grant an interlocutory
appeal. The Plaintiffs fear that these materials may unfairly skew
the Fourth Circuit's review of the case, should the court grant an
interlocutory appeal.
The Defendant responds that striking the material would be
judicially inefficient, because the Defendant concedes that, if the
Court denies its Motion for Partial Reconsideration, the evidence
would not become part of the record on an interlocutory appeal of
the conditional certification issue. Moreover, it adds, striking
the materials would prove inefficient.
Judge Novak agrees with the Plaintiffs and will grant the Motion to
Strike to preserve the integrity of the record. As he discussed,
Rule 10(a) of the Federal Rules of Appellate Procedure provides
that "the original papers and exhibits filed in the district court
will constitute the record on appeal in all cases." He will deny
the Motion for Partial Reconsideration, as discussed. But, if he
does not also strike the proposed additional evidence, then that
evidence would become part of the appellate record, pursuant to
Rule 10(a).
The Court never had the opportunity to review the discovery
materials that the Defendant submitted when addressing the
conditional certification motion. As such, they should not become
part of the record on appeal. Should the Defendant seek to rely on
these materials in a motion for decertification or on remand, it
may refile them then. For these reasons, Judge Novak will grant the
Motion to Strike.
IV. Conclusion
For the reasons he set forth, Judge Novak grants the Defendant's
Motion to Certify an Interlocutory Appeal and certifies for
interlocutory appeal the following question: What legal standard
should courts apply when deciding whether to certify a collective
action under the Fair Labor Standards Act, 29 U.S.C. Section
216(b)?
Judge Novak amends the Court's February 28 Order to certify an
appeal on this question to the Fourth Circuit.
Judge Novak denies the Defendant's Motion for Partial
Reconsideration and grants the Plaintiff's Motion to Strike.
An appropriate Order will be issued.
The Clerk is directed to file a copy of the Memorandum Opinion
electronically and notify all counsel of record.
A full-text copy of the Court's May 10, 2022 Memorandum Opinion is
available at https://tinyurl.com/3zaedvy9 from Leagle.com.
MAXIMUS INC: Thomas' Bid for Class Certification Granted in Part
----------------------------------------------------------------
In the case, SHAREY THOMAS, et al., individually and on behalf of
all others similarly situated, Plaintiffs v. MAXIMUS, INC.,
Defendant, Civil No. 3:21cv498 (DJN) (E.D. Va.), Judge David J.
Novak of the U.S. District Court for the Eastern District of
Virginia, Richmond Division, grants in part and denies in part the
Plaintiffs' Opposed Motion for Conditional Certification and Notice
to Putative Class Members.
I. Introduction
Plaintiffs Sharey Thomas, Jennifer Gilvin, Laura Vick, Shannon
Garner, Nyeshia Young and Olga Ramirez bring the action
individually and on behalf of all other similarly situated
individuals against Defendant Maximus, alleging violations of
Sections 206, 207 and 216(b) of the Fair Labor Standards Act of
1938, as amended 29 U.S.C. Section 216(b) ("the FLSA"); the Kansas
Wage Payment Act ("KWPA"), Kan. Stat. Ann. Section 44-313, et seq.;
the Kentucky Wage and Hour Act ("KWHA" or "Kentucky Act"), Ky. Rev.
Stat. Ann. Sections 337.010, et seq.; the Louisiana Revised
Statutes ("LWPA" or "Louisiana Wage Payment Act"), La. Rev. Stat.
Section 23:631, et seq., Louisiana Civil Code, La. Civ. Code Arts.
2315, 2298 (collectively, "Louisiana Law"); Mississippi common law;
Missouri common law, Mo. Rev. Stat. Sections 290.500, et seq.;
Texas common law; and Virginia common law. The Plaintiffs assert
their FLSA claims as a collective action under Section 16(b) of the
FLSA, 29 U.S.C. Section 216(b), and assert their state law claims
as class actions under Federal Rule of Civil Procedure 23.
II. Background
The Defendant, a Virginia multinational corporation, operates call
centers throughout the United States and primarily serves federal,
state and local governments as a "Citizen Engagement Center." The
Plaintiffs and the Putative Class Members work as hourly
call-center employees who assist the customers of the Defendant's
clients. They bring both the collective action to recover overtime
wages, liquidated damages and other penalties pursuant to the FLSA
and class actions pursuant to various state laws to recover unpaid
straight time, overtime wages and other penalties.
In total, the Plaintiffs claim that they regularly complete one to
two hours of unpaid, off-the-clock work beyond their normal 40-hour
workweek. Employers subject to FLSA must compensate employees at
rates at least one-and-one-half times their regular rates of
compensation for all hours worked in excess of 40 hours per week.
On July 30, 2021, the Plaintiffs filed their original Complaint.
They filed their Amended Complaint on Nov. 2, 2021. In Count One,
the Plaintiffs bring a collective action against Defendant under
the FLSA. In Counts Two through Nine, the Plaintiffs bring class
actions under the laws of Florida, Kansas, Kentucky, Louisiana,
Mississippi, Missouri, Texas and Virginia.
Based on these claims, the Plaintiffs, on their own behalf and on
behalf of the Putative Class Members, seek class certification
under the FLSA and pursuant to the relevant state laws, unpaid
wages, costs and expenses, attorneys' fees, pre- and post-judgment
interest, a service award for the Plaintiffs and accounting of the
Defendants' books and records.
On Nov. 3, 2021, the Plaintiffs moved for conditional certification
and notice to putative class members pursuant to the FLSA, 29
U.S.C. Section 216(b). On Nov. 24, 2021, the Defendant filed its
Memorandum in Opposition. On Dec. 3, 2021, the Plaintiffs replied
to the Defendants' Response. On Feb. 25, 2022, the Court conducted
a conference call with the parties to discuss the instant Motion
and next steps.
III. Analysis
A. The FLSA Collective Action Certification Process
The Defendant argues that the Court should not utilize the
two-stage certification process outlined, and, instead, should
analyze the case under the Fifth Circuit's newly established
framework in Swales v. KLLM Transp. Servs., LLC, 985 F.3d 430 (5th
Cir. 2021). The Plaintiff counters that district courts within the
Fourth Circuit have consistently followed the two-step Lusardi
framework for 20 years, and no other circuits have followed Swales.
In Swales, the Fifth Circuit rejected the two-stage collective
certification process. Instead, the court held that district courts
"should identify, at the outset of the case, what facts and legal
considerations will be material to determining whether a group of
'employees' is 'similarly situated.' And then it should authorize
preliminary discovery accordingly."
Judge Novak declines the Defendant's invitation to apply this
standard and will follow the approach of a litany of other courts
within the Fourth Circuit, which have done the same when presented
with this issue. Like these courts, he sees no compelling reason to
deviate from 20 years of established precedent. Moreover, the facts
and procedural posture in the case diverge from that in Swales in a
manner that only underscores the importance of conditional
certification and early judicial involvement in the notice
process.
Applying the Swales framework would ultimately undermine the
Court's oversight role in the case. With this background in mind,
Judge Novak now turns to the issue of whether the potential
plaintiffs constitute similarly situated employees, as the FLSA
requires.
B. "Similarly Situated" Potential Plaintiffs
In their Motion for Conditional Certification, the Plaintiffs argue
that, based on 12 declarations from the Defendant's employees
across ten different states, they and the Putative Class Members
worked as non-exempt employees of the Defendant; that the Defendant
uniformly subjected them to its company-wide policy requiring
off-the-clock, unpaid work; that they performed similar duties;
that Defendant paid them an hourly rate; and that the Defendant did
not provide them with all of their overtime compensation and
compensation at their regular rate(s) of pay. They also highlight
that at the time that they filed their Motion, 97 other current
former call-center employees had filed pre-notice opt-in consent
forms, demonstrating that others had been negatively affected by
the Defendant's allegedly illegal policies. They assert that they
have met or exceeded the amount of evidence that courts usually
require for satisfaction of the similarly-situated standard.
The Defendant responds that evaluations of the Plaintiffs' and the
Putative Class Members' claims would require individualized
determinations of liability, rendering resolution on a class-wide
basis inappropriate. Likewise, it contends that its defenses to
each of the Plaintiffs' and the Putative Class Members' claims
would require individualized evaluations, as well, based on the
amount of unpaid, off-the-clock work that each individual
completed.
Judge Novak opines that the Plaintiffs have made a threshold
showing that the potential plaintiffs constitute similarly situated
employees. As the Plaintiffs correctly posit, the conditional
certification step merely requires only a modest factual showing of
similarity between the Plaintiffs and the Putative Class Members,
and the Court need not address merits issues at this first step. At
this point, the Court need not prematurely delve into whether the
Plaintiffs' claims require individualized treatment that would
render a collective action unmanageable. Concerns about the
predominance of individualized nature of the Plaintiffs' and the
Putative Class Members' claims require merits-based analyses that
courts wait to tackle during the decertification stage, after
notice to potential plaintiffs is finalized and the parties have
completed discovery.
For these reasons, Judge Novak conditionally certifies the class
and will order notice to the potential class members.
C. Plaintiff's Requested Relief
First, the Plaintiffs ask the Court to order the Defendant to
provide counsel for Plaintiffs with the names, current or last
known addresses, email addresses, phone numbers, cell phone numbers
and dates of employment for current and former hourly call-center
employees who match the description of the conditionally certified
class within seven days of the entry of the Court's order
conditionally certifying the class. Additionally, they seek to
disseminate the Notice and Consent form to the Putative Class
Members via mail, email and text message. They also request that
the Putative Class Members be given the option to execute their
consent forms online through an electronic signature service.
Additionally, they request that the Notice and Consent forms be
posted in plain view at the Defendant's call centers across the
country. Finally, they ask that the Court authorize a 90-day opt-in
period, as well as a reminder notice to be sent via email and text
message halfway through the period.
In response, the Defendant takes issue with several aspects of the
Plaintiffs' proposed Notice and Consent requests, including (i)
that the term "hourly call-center employees" is overbroad (ii) that
the Notice must state that the Defendant "(1) denies the
Plaintiffs' allegations; (2) contends that the lawsuit is without
merit; and (3) contends that it has properly paid the Plaintiffs
and all other current and former customer service representatives
all wages and overtime owed under the FLSA"; and (iii) the
Defendant assert that Section Three of the proposed Notice should
be revised "to state that an individual is eligible to join the
lawsuit if: (1) he or she was employed by the Defendant as an
hourly Customer Service Representative at any point within the past
three years, and (2) was not paid for all hours worked."
As to the disclosure of the potential plaintiffs' contact
information, Judge Novak (i) permits the counsel for the Plaintiffs
to text, but not call, the potential plaintiffs, making disclosure
of the potential plaintiffs' home phone numbers unnecessary; (ii)
denies the Plaintiffs' request for an order directing disclosure of
the last four digits of potential plaintiffs' Social Security
Numbers; and (iii) allows a 14-day period from the entry thereof
for the Defendant to submit the requested contact information to
the Plaintiffs.
As to communication methods and schedule, Judge Novak (i) grants
the Plaintiffs' request for an order requiring the disclosure of
the names, current or last known physical addresses, dates of
employment and email addresses for current and former Hourly
Call-Center Employees fitting the description of the conditionally
certified class; (ii) authorizes Notice of the instant suit by
mail, email and text message, as courts throughout the Fourth
Circuit commonly do; (iii) permits a 90-day opt-in period, in line
with courts in this circuit and nationwide; and (iv) does not
authorize the Plaintiffs to post the Notice at the Defendant's call
centers across the country.
As to the contents of the Notice and Consent form, Judge Novak (i)
grants the Defendant's objection to the use of the term "hourly
call-center employees" in the proposed Notice; (ii) grants the
Defendant's request to modify the Notice and Consent form to
include Defendant's position on the instant action, because the
Plaintiff agrees to this request; (iii) denies the Defendant's
objection to the statement in Section 3 of the Proposed Notice;
(iv) grants the Defendant's request to modify the last sentence in
Section 5, which pertains to the statute of limitations; and (v)
denies the Defendant's objections to Paragraph 5 of the proposed
Consent Form.
In conclusion, Judge Novak permits in part and rejects in part the
Plaintiffs' proposed Notice and Consent form, Notice schedule and
methods of communication.
IV. Conclusion
For the foregoing reasons, Judge Novak grants in part and denies in
part the Plaintiffs' Motion.
Further, pursuant to the Court's May 10, 2022 Order amending its
Feb. 28, 2022 Order, he amends the Court's Feb. 28, 2022 Memorandum
Opinion accompanying the Feb. 28 Order to certify an interlocutory
appeal of its Feb. 28 Order on the following question: What legal
standard should courts apply when deciding whether to certify a
collective action under the Fair Labor Standards Act, 29 U.S.C.
Section 216(b)?
Finally, Judge Novak stays all aspects of the case pending
resolution of the interlocutory appeal, except the production of
the personal contact information of the potential plaintiffs.
An appropriate Order will be issued.
The Clerk is ordered to file a copy of the Memorandum Opinion
electronically and notify all the counsel of record.
A full-text copy of the Court's May 10, 2022 Amended Memorandum
Opinion is available at https://tinyurl.com/bdemx35a from
Leagle.com.
MDL 2724: Bid to Dismiss State Law Claims in Antitrust Suit Denied
------------------------------------------------------------------
In the case, IN RE: GENERIC PHARMACEUTICALS PRICING ANTITRUST
LITIGATION, THIS DOCUMENT RELATES TO In re Clobetasol Cases
(End-Payer) In re Clomipramine Cases (End-Payer) In re Pravastatin
Cases (End-Payer), Case Nos. MDL 2724, 16-MD-2724, 16-CB-27242,
16-CM-27242, 16-PV-27242 (E.D. Pa.), Judge Cynthia M. Rufe of the
U.S. District Court for the Eastern District of Pennsylvania denied
the Defendants' joint motion to dismiss.
The Defendants in this multidistrict antitrust litigation have
moved to dismiss certain state law claims and to strike certain
allegations raised by the End-Payer Plaintiffs ("EPPs") with
respect to the following generic drugs: (1) clobetasol; (2)
clomipramine; and (3) pravastatin.
I. Background
The EPPs allege that the Defendants, the manufacturers of generic
pharmaceuticals, engaged in an unlawful scheme or set of schemes to
fix, maintain, and stabilize prices and rig bids, and that
Defendants engaged in market and consumer allocations of certain
generic pharmaceutical products, including clobetasol,
clomipramine, and pravastatin. In relevant part, they assert
several claims for monetary damages under state antitrust and
consumer protection laws as well as claims for unjust enrichment.
In doing so, they seek to avoid the limitation on the availability
of monetary damages for federal antitrust claims.
In their consolidated amended complaints, the EPPs also allege that
the Defendants participated in a broader unlawful conspiracy. In
each of the clobetasol, clomipramine, and pravastatin complaints,
they assert claims related to the single pharmaceutical at issue,
but they contend that the "Defendants' unlawful anticompetitive
conduct with respect to these pharmaceuticals is part of a larger
conspiracy or series of conspiracies involving numerous generic
pharmaceuticals and pharmaceutical manufacturers."
The EPPs include employee welfare benefits funds, labor unions,
private insurers, and municipalities, as well as individual
plaintiffs; they allege either that they indirectly purchased
generic pharmaceuticals manufactured by the Defendants or that they
provided reimbursements for some or all of the purchase price for
clobetasol, clomipramine, and/or pravastatin. In their complaints,
the EPPs assert antitrust, consumer-protection, and
unjust-enrichment claims under the laws of several states and
territories.
The EPPs reside in or are headquartered in several, but not all, of
the jurisdictions listed. They allege that they indirectly
purchased or made reimbursements for clobetasol, clomipramine, and
pravastatin in the jurisdictions under whose law they assert
claims. They assert these claims individually and on behalf of
classes, seeking damages for "all persons and entities in every
state except Ohio and Indiana as well as the District of Cohunbia.
Puerto Rico, and the U.S. Virgin Islands who indirectly purchased,
paid and/or provided reimbursement for some or all of the purchase
price" for clobetasol, clomipramine, and pravastatin.
The Defendants are alleged to have manufactured and sold generic
pharmaceuticals throughout the United States. According to the
EPPs' complaints, the Defendants are incorporated or maintain their
principal places of business in the following states: Colorado,
Delaware, Florida, Illinois, Maryland, Michigan, Louisiana, New
Jersey, New York, Pennsylvania, and West Virginia.
As is relevant to the claims at issue, EPPs allege that the
"Defendants' anticompetitive conduct occurred in part in trade and
commerce within the states and territories" under whose laws EPPs
assert claims and "also had substantial intrastate effects" by
foreclosing the offering of "less expensive clobetasol,
clomipramine, and pravastatin to the EPPs inside each of these
states and territories." This conduct, in turn, purportedly
"disrupted commerce for the EPPs within each of these states and
territories and forced them to pay supracompetitive prices."
Moreover, they allege that the Defendants "have been enriched by
revenue resulting from unlawful overcharges for clobetasol,
clomipramine, and pravastatin while the EPPs have been impoverished
by the overcharges they paid" for these generic pharmaceuticals as
a result of Defendants' conduct.
In August 2017, the EPPs filed consolidated class action complaints
asserting antitrust claims with respect to several generic
pharmaceuticals, including clobetasol, clomipramine, and
pravastatin Several months later, the defendant pharmaceutical
companies, including the Defendants, jointly moved to dismiss,
among other things, the EPPs' state antitrust, consumer protection,
and unjust enrichment claims asserted in EPPs' complaints for the
Group 1 pharmaceuticals (which includes clobetasol and pravastatin
but not clomipramine). In February 2019, the Court granted the
joint motion in part and denied it in part as it pertained to the
EPPs' state law claims.
Following this decision, the EPPs amended their complaints for the
clobetasol, clomipramine, and pravastatin. In these amended
complaints, they continue to assert claims arising under state
antitrust, consumer-protection, and unjust-enrichment laws against
Defendants as detailed in the sections above. As previously
discussed, the EPPs also allege that the Defendants participated in
a greater conspiracy concerning generic pharmaceuticals. In
November 2020, the Defendants jointly moved to dismiss certain of
the EPPs' state law claims asserted in these three complaints and
to strike these complaints' allegations concerning Defendants'
participation in a greater conspiracy.
II. Discussion
The Defendants move to dismiss the EPPs' consumer-protection claims
under the Alaska Unfair Trade Practices and Consumer Protection Act
("AUTPCPA"), the New Jersey Consumer Fraud Act ("NJCFA"), the
Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), and
the Massachusetts Consumer Protection Law. They also move to
dismiss unjust-enrichment claims under the laws of several states
and territories. Acknowledging that the Court already addressed
many of these claims in its February 2019 Opinion, the Defendants
largely urge the Court to reconsider its decision to allow these
claims to proceed in light of intervening authority.
The Defendants also move to strike EPPs' allegations about the
Defendants' participation in a "larger conspiracy or series of
conspiracies" from the clobetasol, clomipramine, and pravastatin
complaints. They contend that asserting these allegations in these
single-product complaints create confusion as to the scope of these
cases, and they ask the Court to prevent any potential confusion by
striking these allegations.
A. Motion to Dismiss Certain State Law Claims
The current motion to dismiss several of EPPs' state law claims
implicates the law-of-the-case doctrine, which "directs courts to
refrain from re-deciding issues that were resolved earlier in the
litigation" as a matter of prudence. The parties dispute the extent
to which this doctrine governs the Court's resolution of this
motion.
Due to its earlier rulings, the EPPs contend that the Court may not
revisit its rulings from its February 2019 Opinion absent
"extraordinary circumstances" that justify such reconsideration.
The Defendants argue that, under the doctrine, the Court's earlier
Minnesota, Missouri, Montana, Nebraska, Nevada, New Jersey, New
Mexico, New York, North Dakota, Oklahoma, Pennsylvania, Puerto
Rico, Rhode Island, South Carolina, South Dakota, Texas, Utah,
Vermont, Virginia, Washington, West Virginia, Wisconsin, and
Wyoming, rulings do not bind its disposition of this motion,
leaving it free to consider the EPPs' state law claims anew.
Judge Rufe opines that (i) given the lack of controlling authority,
she sees no basis to alter the Court's earlier decision and will
permit the EPPs' AUTCPCA claim to move forward; (ii) the New Jersey
law does not clearly foreclose the EPPs' standing so the EPPs have
standing to assert their NJCFA claims; (iii) it is "more
appropriate" to resolve the timeliness of FDUTPA claims "at a later
stage of the proceedings following more particularized discovery;
(iv) the Massachusetts law does not require that a plaintiff send a
demand letter if the defendant either has no place of business or
has no assets within Massachusetts; and (v) the Defendants have
presented no state-specific arguments for the unjust enrichment
claims they seek to dismiss.
B. Motion to Strike Allegations Concerning a Greater Conspiracy
In addition to seeking to dismiss several of EPPs' state law
claims, the Defendants also move to strike allegations about their
participation in a "larger conspiracy or series of conspiracies" in
the clobetasol, clomipramine, and pravastatin complaints. Federal
Rule of Civil Procedure 12(f) permits a district court to strike
portions of pleadings that are "redundant, immaterial, impertinent,
or scandalous." They contend that the EPPs' allegations satisfy
this standard because EPPs' allusion to a greater conspiracy is
"redundant and confusing."
In particular, the Defendants argue that EPPs' complaints do not
make it clear whether, the EPPs intend to pursue, in each of these
pharmaceutical-specific actions, claims related to this overarching
conspiracy. The Defendants argue that if the Court considers these
claims anywhere, it should do so outside of this multidistrict
litigation's single-product cases.
Given that the EPPs may find it difficult to separate the alleged
broader price-fixing scheme from its implementation for individual
generic pharmaceuticals, and this scheme may provide necessary
context for understanding the claims at issue in these
single-pharmaceutical actions, Judge Rufe holds that, at this early
stage, the Defendants have failed to establish that these
allegations are improper. The Court may employ other tools to
address any potential confusion if and when it arises later in the
proceedings. Accordingly, Judge Rufe denies the Defendants' motion
to strike.
III. Conclusion
Consistent with the analysis she set forth, Judge Rufe denied the
Defendants' joint motion to dismiss certain state law claims and to
strike certain allegations in the clobetasol, clomipramine, and
pravastatin complaints.
An appropriate Order follows.
A full-text copy of the Court's May 10, 2022 Memorandum Opinion is
available at https://tinyurl.com/mt8mrstn from Leagle.com.
MDL 2807: $5.73M Class Deal in Security Breach Suit Wins Prelim. OK
-------------------------------------------------------------------
In the case, IN RE: SONIC CORP. CUSTOMER DATA SECURITY BREACH
LITIGATION (FINANCIAL INSTITUTIONS), Case No. 1:17-md-2807, MDL No.
2807 (N.D. Ohio), Judge James S. Gwin of the U.S. District Court
for the Northern District of Ohio grants preliminary approval of
the parties' proposed $5.73 million settlement agreement and
approves the proposed notice plan.
In 2017, hackers broke into Sonic customers' payment card data. The
hackers stole customer payment card information from more than
seven-hundred Sonic franchised Drive-Ins.
In this class action, Plaintiff Financial Institutions sue Sonic
Defendants and say the Sonic Defendants' negligence caused the data
breach.
Now, after three years of litigation, the parties have negotiated a
settlement agreement. The Plaintiffs now ask the Court to: (1)
grant preliminary approval of the settlement agreement; (2) direct
notice to class members, and (3) set a final approval hearing.
II. Background
In the current case, Plaintiff Financial Institutions sue Sonic
Defendants for negligence related to insecure systems that led to
the data breach. The Plaintiffs allege that Sonic's negligence
required financial institutions to spend resources to respond to
the breach.
The litigation has spanned more than three years. In that time, the
parties have engaged in extensive discovery: exchanging "hundreds
of thousands of documents"; retaining six experts who served
reports; and deposing corporate representatives, class members,
third-party representatives, and experts.
Over the course of the three years, the Court has ruled on numerous
motions. It partially granted and partially denied Sonic
Defendants' motion to dismiss. It granted the Plaintiffs' motion
for class certification. It denied Sonic Defendants' summary
judgment motion.
Before reaching a settlement agreement, the parties also began
pretrial motions practice. The Court granted Sonic's motion to
exclude the Plaintiffs' expert witness on damages and denied
Sonic's motion to exclude a liability expert witness. Three
pretrial motions remain pending: Sonic's motion to decertify the
class, Sonic's motion for a suggestion of remand, and the
Plaintiffs' motion to bifurcate the trial.
In November 2020, the Court certified a class action. It defined
the certified class as: "All banks, credit unions, and financial
institutions in the United States that received notice and took
action to reissue credit cards or debit cards or reimbursed a
compromised account from any card brand in the Sonic Data Breach."
The Court appointed Financial Institution Plaintiffs as the class
representatives for the certified class. It also appointed the
following attorneys as Class Counsel in November 2020: Brian
Gudmundson, Zimmerman Reed LLP; and Charles Van Horn, Berman Fink
Van Horn P.C.
Now, the parties seek preliminary approval of their proposed
settlement agreement. To reach the proposed settlement, the parties
negotiated for months. The parties negotiated in at least three
full-day mediation sessions with Magistrate Judge Jonathan D.
Greenberg in January and February 2022.
Under the settlement agreement, Sonic would pay under a per-card
formula up to $5.73 million to resolve class member claims. This
total would include up to $3 million to pay the class members'
claims ($1 per reissued card and $1.50 per card experiencing fraud
within four weeks of the breach). Sonic would pay up to $500,000
for settlement administration, up to $30,000 for class
representative service awards, and up to $2.2 million for
attorneys' fees and expenses.
Judge Gwin grants preliminary approval to the proposed settlement
agreement. He finds that the agreement was the product of
arms-length negotiation, not collusion. The parties' extensive
negotiations included mediation with Magistrate Judge Greenberg.
Judge Gwin preliminarily approves the monetary relief to the Class
Members provided in the settlement agreement. At this stage, the
settlement agreement seems arguably fair, reasonable, and
adequate.
Judge Gwin also approves the notice program described in the
settlement agreement, as well as the notices attached as Exhibit C
(Long Form Notice) and Exhibit D (Website Notice). The parties and
their counsel will distribute notices by: (i) mailing the Long Form
Notice and Claim Form to the updated addresses of the class
members; and (ii) posting the Long Form Notice and Claim Form to
the settlement website. The parties and their counsel are directed
to distribute the notices following the terms of the settlement
agreement.
Judge Gwin further approves the claim form attached to the
settlement agreement as Exhibit B. He approves and appoints KCC LLC
as the settlement administrator and directs them to perform the
duties set forth in the settlement agreement.
The Court will conduct a final approval hearing. At the hearing, it
will consider any objections to the settlement agreement and decide
whether to grant final approval. The final approval hearing will
take place on Oct. 6, 2022 at 12:00 PM.
Any class member, who intends to object to the fairness,
reasonableness, or adequacy of the Settlement, the proposed
attorneys' fees and costs, and/or the proposed service awards, must
file with the Court a written statement of the objections, as well
as the specific reasons for each objection. Objectors should also
deliver those statements to David M. Poell of Sheppard Mullin
Richter & Hampton LLP as counsel for the Sonic Defendants, and to
Brian C. Gudmundson of Zimmerman Reed LLP as Class Counsel.
Any objector must file any objections with the Court's Clerk of
Courts and delivered to the counsel for Defendants and the Class
Counsel no later than 120 days after entry of the present Order.
Objectors must deliver their objections to the Court, Class
Counsel, and the Sonic Defendants' counsel at the following
addresses: Court Clerk of the Court U.S. District Court for the
Northern District of Ohio Carl B. Stokes United States Court House
801 West Superior Avenue Cleveland, OH 44113 Class Counsel Brian C.
Gudmundson Zimmerman Reed LLP 1100 IDS Center 80 South 8th Street
Minneapolis, MN 55402 The Sonic Defendants' Counsel David M. Poell
Sheppard Mullin Richter & Hampton LLP 70 West Madison Street, 48th
Floor Chicago, Illinois 60602
Any class member who seeks exclusion from the settlement must
satisfy the Long Form Notice pertinent terms and conditions. Any
exclusion requests must be postmarked no later than 120 days after
entry of the Order.
No later than 14 days after the deadline for submission of claim
forms, the settlement administrator will supply a declaration to
class counsel and the Sonic Defendants' counsel describing the
measures taken to give class members notice through the notice
program. The declaration must also include the information about
claims and requests for exclusion as described in the settlement
agreement.
Judge Gwin directs the parties to carry out their obligations under
the settlement agreement.
A full-text copy of the Court's May 10, 2022 Opinion & Order is
available at https://tinyurl.com/ypv2uk8w from Leagle.com.
MDL 2879: Class Cert Partly Granted in Data Security Breach Suit
----------------------------------------------------------------
In the class action lawsuit Re: Marriott International, Inc.,
Customer Data Security Breach Litigation, Case No.
8:19-md-02879-PWG (d. Md,), the Hon. Judge Paul W. Grimm entered an
order granting in part and denying in part the Plaintiffs' motion
for class certification, as follows:
1. The Court certifies the following Rule 23(b)(3) damages
class with respect to Plaintiffs' Maryland breach of
contract and MCPA claims:
"All natural persons residing in Maryland whose Personal
Information, given to Starwood in connection with the
making of a reservation at a Starwood property in the
United States, was compromised in a data breach announced
by Marriott on or about November 30, 2018, and who: (1)
had a Starwood Preferred Guest ("SPG") membership, (2)
bore the economic burden for the hotel stay, and (3) made
the reservation from July 28, 2014 to November 30, 2018."
Peter Maldini will serve as the Class Representative.
2. The Court certifies the following Rule 23(b)(3) damages
class with respect Plaintiffs' New York breach of contract
and GBL section 349 claims:
"All natural persons residing in New York whose Personal
Information, given to Starwood in connection with the
making of a reservation at a Starwood property in the
United States, was compromised in a data breach announced
by Marriott on or .about November 30, 2018, and who: (1)
had a Starwood Preferred Guest ("SPG") membership, (2)
bore the economic burden for the hotel stay, and (3) made
the reservation from July 28, 2014 to November 30, 2018."
Roger Cullen, Eric Fishon, and Paula O'Brien will serve as
the Class Representatives.
3. The Court certifies the following Rule 23(b)(3) damages
class for Plaintiffs' California UCL claim:
"All natural persons residing in California whose Personal
Information, given to Starwood in connection with the
making of a reservation at a Starwood property in the
United States, was compromised in a data breach announced
by Marriott on or about November 30, 2018, and who: (1)
had a Starwood Preferred Guest ("SPG") membership, (2)
bore the economic burden for the hotel stay, and (3) made
the reservation from July 28, 2014 to November 30, 2018."
Robert Guzikowski, Denitrice Marks, and Maria Maisto will
serve as the Class Representatives.
4. The Court certifies the following Rule 23(e)(4) class as
to the common law duty and breach issues relevant to
Plaintiffs' Florida negligence claims:
"All natural persons residing in Florida who had a
Starwood Preferred Guest ("SPG") membership and whose
Personal Information, given to Starwood in connection with
the making of a reservation at a Starwood property, was
compromised in a data breach announced by Marriott on or
about November 30, 2018.
Irma Lawrence, Michaela Bittner, and Kathleen Frakes
Hevener will serve as the Class Representatives.
5. The Court certifies the following Rule 23(c)(4) class as
to the common law duty and breach issues relevant to
Plaintiffs' Maryland negligence claims:
"All natural persons residing in Maryland who had a
Starwood Preferred Guest ("SPG") membership and whose
Personal Information, given to Starwood in connection with
the making of a reservation at a Starwood property, was
compromised in a data breach announced by Marriott on or
about November 30, 2018.
Peter Maldini will serve as the Class Representative."
6. The Court certifies the following Rule 23(c)(4) class as
to the common law duty, statutory duty, and breach issues
relevant to Plaintiffs' Connecticut negligence and
negligence per se claims:
"All natural persons residing in Connecticut who had a
Starwood Preferred Guest ("SPG") membership and whose
Personal Information, given to Starwood in connection with
the making of a reservation at a Starwood property, was
compromised in .a data breach announced by Marriott on or
about November 30, 2018."
Anne Marie Amarena will serve as the Class Representative.
7. The Court certifies the following Rule 23(c)(4) class as
to the statutory law duty, and breach issues relevant to
Plaintiffs' Georgia negligence per se claims:
"All natural persons residing in Georgia who had a
Starwood Preferred Guest ("SPG") membership and whose
Personal Information, given to Starwood in connection with
the making of a reservation at a Starwood property, was
compromised in a data breach announced by Marriott on or
about November 30, 2018.
Brent Long and David Viggiano will serve as the Class
Representatives."
8. The Court denies the motion to certify the Michigan ITPA
damages class.
9. The Court denies without prejudice damages (and liability)
classes that rely on the loss of market value theory.
10. The Court denies without prejudice the motion to certify a
class for injunctive or declaratory relief.
Judge Grimm appoints the following individuals as Co-Lead
Class Counsel:
Andrew Friedman of Cohen Milstein Sellers & Toll PLLC,
Amy Keller of DiCello Levitt Gutzler LLC, and
James Pizzirusso of Hausfeld LLP.
Further, the individuals currently serving in the roles of Consumer
Plaintiffs' Liaison Counsel and Consumer Plaintiffs' Steering
Committee shall continue to do so. The duties for Co-Lead Class
Counsel, Liaison Counsel, and members of the Steering Committee
remain the same as outlined in the case management order. As in
that order, all the foregoing appointments are personal to the
individual attorney appointed. Although the Court expects that the
individual attorneys will draw upon their firms, including their
firms' resources, to assist them with their duties, each individual
attorney is personally responsible for his or her duties. The Court
may add or replace individual attorneys, if and as circumstances
warrant, the Judge adds.
Marriott is an American multinational company that operates,
franchises, and licenses lodging including hotel, residential, and
timeshare properties. It is headquartered in Bethesda, Maryland.
A copy of the Court's order dated May 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3wu5Lg2 at no extra charge.[CC]
MDL 2994: Claims in Customer Data Security Breach Suit Narrowed
---------------------------------------------------------------
In the case, In re: MEDNAX SERVICES, INC., CUSTOMER DATA SECURITY
BREACH LITIGATION. This Document Relates to All Actions, Case No.
21-MD-02994-RAR (S.D. Fla.), Judge Rodolfo A. Ruiz, II, of the U.S.
District Court for the Southern District of Florida granted in part
and denied in part the Defendants' Motion to Dismiss Plaintiffs'
Consolidated Amended Complaint.
I. Background
The multidistrict litigation ("MDL") action arises from two data
breaches that occurred in June and July 2020, when a phishing
attack on the Defendants' email service disclosed the protected
health information ("PHI") and personally identifiable information
("PII") of the Plaintiffs and similarly situated persons--allegedly
including their names, addresses, email addresses, dates of birth,
medical records, patient account numbers, health insurance
information, Social Security numbers, and/or limited treatment or
clinical information, such as diagnosis, provider names, dates of
service, and other medical information.
Defendant Mednax is a physician-led healthcare organization
offering various clinical, support, and consulting services.
Defendant Pediatrix, a subsidiary of Defendant Mednax, provides
maternal, newborn, and pediatric subspecialty services. Defendant
American Anesthesiology is a healthcare services provider and a
former subsidiary of Defendant Mednax now owned by North American
Partners in Anesthesia. Following the Data Breaches, the Defendants
allegedly waited nearly six months before notifying their patients
that their PHI and PII may have been compromised.
The Plaintiffs allege that the Defendants "betrayed the Plaintiffs'
trust by failing properly to safeguard and protect their PHI and
PII and by publicly disclosing their PHI and PII without
authorization in violation of numerous laws and statutes." They
maintain that these actions have caused them numerous and imminent
injuries.
On behalf of themselves and putative Class Members, they seek
actual damages, statutory damages, punitive damages, and
restitution, with attorney's fees, costs, and expenses, under the
statutes of twelve states as well as breach of fiduciary duty of
confidentiality of medical records, breach of implied contract,
negligence, and negligent training and supervision under common
law. They also seek various forms of declaratory and injunctive
relief.
In June 2021, six cases were transferred to the MDL from the
Southern District of Florida, Southern District of California,
Western District of Missouri, District of South Carolina, and
District of Arizona. The Defendants now move to dismiss the
Plaintiffs' Amended Complaint for lack of Article III standing and,
alternatively, for failure to state a claim upon which relief can
be granted.
II. Analysis
The Defendants raise several arguments in favor of dismissal,
including a lack of subject matter jurisdiction under Rule 12(b)(1)
and failure to state a claim under Rule 12(b)(6).
A. Plaintiffs Sufficiently Allege Article III Standing
Of the three Article III standing prerequisites -- injury in fact,
traceability, and redressability -- the Defendants challenge two:
Injury in fact and traceability. The Defendants challenge the
Plaintiffs' standing as both facially and factually deficient.
Judge Ruiz holds that (i) the Plaintiffs' alleged injuries
constitute injuries in fact sufficient to satisfy claims for
injunctive relief and damages; (ii) he has little difficulty in
concluding that the Defendants' failure to secure the Plaintiffs'
data is sufficiently traceable to Plaintiffs' alleged injuries; and
(iii) it is clear that whether and to what extent the Plaintiffs'
injuries were caused by the Data Breaches must be left to the
summary judgment stage after both parties are afforded the
opportunity to conduct discovery. For these reasons, all the named
Plaintiffs have established Article III standing, and the
Defendants' Motion to Dismiss for lack of subject matter
jurisdiction is denied.
B. Analysis of Plaintiffs' Claims
First, Judge Ruiz that (i) the Plaintiffs allege no facts to
support a finding of either negligent supervision or negligent
training, so Count XXII is dismissed with prejudice and the point
is moot; (ii) Plaintiffs' claims under Count XVIII (breach of
implied contract) do not provide the Defendants with fair notice;
and (iii) the Plaintiffs improperly engage in group pleading by not
specifically indicating how each Defendant allegedly entered and
subsequently breached a contract with each Plaintiff.
Second, Judge Ruiz holds that the Plaintiffs plead both breach of
the covenant of good faith and fair dealing and breach of an
implied contract as separate causes of action. They do not identify
any express term of their contract that the Defendants allegedly
breached. See id. And the Plaintiffs allege no special relationship
between themselves and the Defendants. Accordingly, the Defendants'
Motion as to Count I is granted. Because Count XVIII for breach of
an implied contract is dismissed with prejudice, Count I is also
dismissed with prejudice.
Third, Judge Ruiz holds that Plaintiff Cohen fails to state a claim
under the Maryland Personal Information Protection Act (Count II).
In the MPIPA, the legislature expressed no intention to create a
direct private right of action for violation of its terms but
rather stated that a violation constitutes "an unfair or deceptive
trade practice" that "is subject to the enforcement and penalty
provisions" of the Maryland Consumer Protection Act ("MCPA"). The
Plaintiffs cite no case law holding otherwise. See Resp. at 30.
Accordingly, Defendants' Motion as to Count II is granted. Count II
is dismissed without prejudice to Plaintiff Cohen to allege an
unfair or deceptive trade practice under the MPIPA as part of her
claim under the MCPA.
Fourth, Judge Ruiz finds that most Plaintiffs fail to state claims
under State Consumer Protection Statutes (Counts IIIto IV, VI to
XVI). He finds that (i) the Plaintiffs' alleged injuries constitute
injuries in fact sufficient to satisfy claims for damages; (ii) the
Plaintiffs' claims under FDUTPA (Count VIII) and the NYGBL (Count
XI) fail because those statutes do not apply extraterritorially;
(iii) the Plaintiffs ultimately fail to sufficiently allege damages
attributable to the diminished value of the healthcare services
they received from the Defendants (Count VIII); (iv) the
Plaintiffs' Amended Complaint meets the particularity requirements
of Rule 9(b) and sufficiently alleges reliance on the Defendants'
material omissions (Counts III to IV, VI to X, XII, and XIV to
XVI); and (v) the Plaintiffs fail to allege that the Defendants
omitted information they knew or should have known about flaws in
their data security protocols (Counts VI, IX, XIV, and XV).
Moreover, Judge Ruiz holds that (i) Plaintiff A.W. does not
plausibly allege how any acts regarding the security of her
information occurred in relation to the sale of merchandise under
the Missouri Merchandising Practices Act ("MMPA") (Count IX); (ii)
the Plaintiffs' allegations are sufficient to state a claim under
the MCPA (Count III) and that Defendant Mednax violated the North
Carolina Unfair and Deceptive Trade Practices Act ("NCUDTPA")
(Count X); (iii) Rumely's claims under California's Unfair
Competition Law ("UCL") (Count VI) and Consumer Legal Remedies Act
("CLRA") (Count VII) must be dismissed because Plaintiff Rumely
fails to allege either that there is no adequate legal remedy for
his alleged injuries or that he complied with the pre-suit notice
required by the CLRA; (iv) Count XII is preempted by the OCPA's
safe harbor provision; (v) the class claims of Plaintiffs Lee and
Clark must be dismissed because the South Carolina Unfair Trade
Practices Act (Count XIII) expressly prohibits the pursuit of class
action claims; and (v) Plaintiff Jay plausibly alleges injury to
property under the Washington Consumer Protection Act ("WCPA")
(Count XVI), which provides for recovery for injury to "business or
property."
For the foregoing reasons, the Defendants' Motion is granted as to
Counts VI, VII, VIII, IX, XII, XIII, XIV, and XV; and denied as to
Counts III, IV, X, XI, and XVI. Counts VIII, IX, XIV, and XV are
dismissed without prejudice and with leave to amend. Counts VI,
VII, XII and XIII are dismissed with prejudice.
Fifth, Judge Ruiz finds that (i) the Plaintiffs' statement are are
sufficient allegations of unreasonable cybersecurity practices
under the California Customer Records Act ("CRA") (Count V); (ii)
he cannot infer from the Plaintiffs' allegations the mutual assent
and meeting of the minds required to form an implied contract for
data security services based on the parties' conduct (Count XVIII);
(iii) the Plaintiffs state a claim for negligence, with a caveat
(Count XIX); (iv) because the Plaintiffs cannot present a set of
facts necessary to allege that the Defendants intentionally
disclosed their PHI and PII, Count XX is dismissed with prejudice;
(v) because the Plaintiffs' pleading amounts to no more than the
type of arm's-length transaction that gives rise to no fiduciary
duty, the Defendants' Motion is granted as to Count XXI and Count
XXI is dismissed with prejudice; and (vi) Count XXII fails under
the Eleventh Circuit's shotgun pleading standards and falls short
in terms of substance.
C. Additional Argument by Defendant American Anesthesiology
Defendant American Anesthesiology raises the following three
arguments in addition to those raised collectively by all the
Defendants: (i) the Amended Complaint improperly lumps together
American Anesthesiology and the other Defendants; (ii) eleven
Plaintiffs lack standing to sue American Anesthesiology because
they do not allege any connection to American Anesthesiology; and
(iii) the Plaintiffs cannot assert state-law claims when their own
claims do not arise under the laws of those states.
As to the first argument, Judge Ruiz rules that without the aid of
discovery, it would be premature for the Court to require the
Plaintiffs to demonstrate the specific actions taken -- or not
taken -- by each Defendant that resulted in the Plaintiffs'
injuries. As to the second argument, he is unsure what "connection"
American Anesthesiology expects the Plaintiffs to plead. The third
argument is moot in light of the Court's findings as to choice of
law.
Accordingly, the Defendants' Motion as to Counts I and XVIII is
granted as to Plaintiffs A.W., B.W., Rumely, Bean, Jay, Soto, Baum,
Larsen, Fulks, Cohen, and Clark, and as against Defendant American
Anesthesiology, for the additional reason that these Plaintiffs
fail to allege privity of contract.
III. Conclusion
Judge Ruiz concludes that the Plaintiffs have standing to bring the
action, but many of their counts fail to state a claim upon which
relief can be granted and therefore warrant dismissal. Accordingly,
for the foregoing reasons he granted in part the Defendants'
Motion.
The following Counts are dismissed without prejudice and with leave
to amend: Count II (violation of the Maryland Personal Information
Protection Act); Count VIII (violation of the Florida Deceptive and
Unfair Trade Practices Act); Count IX (violation of the Missouri
Merchandising Practices Act); Count XIV (violation of the Texas
Deceptive Trade Practices-Consumer Protection Act); Count XV
(violation of the Virginia Consumer Protection Act); and Count XIX
(negligence).
The following Counts are dismissed with prejudice: Count I (breach
of the covenant of good faith and fair dealing); Count VI
(violation of the California Unfair Competition Law); Count VII
(violation of the California Consumer Legal Remedies Act); Count
XII (violation of the Oklahoma Consumer Protection Act); Count XIII
(violation of the South Carolina Unfair Trade Practices Act); Count
XVIII (breach of implied contract); Count XX (invasion of privacy
by public disclosure of private facts); Count XXI (breach of the
fiduciary duty of confidentiality); and Count XXII (negligent
training and supervision).
The Plaintiffs will file a Second Amended Complaint in conformance
with the Order by June 10, 2022.
The stay of discovery imposed by the Court in Pretrial Order No. 1,
and extended by the Order Granting Defendants' Motion to Stay
Discovery, is further extended for a period of 45 days from the
date of the Order to allow the parties sufficient time to prepare a
Second Amended Complaint and an answer or response.
A Status Conference was set via Zoom on May 18, 2022, at 11:00 a.m.
Details will be provided by separate order.
A full-text copy of the Court's May 10, 2022 Order is available at
https://tinyurl.com/2p8s5r4t from Leagle.com.
MEDCHOICE RISK: Pretrial & Discovery Deadlines in Amin Suit Stayed
------------------------------------------------------------------
Magistrate Judge Benjamin W. Cheesbro of the U.S. District Court
for the Southern District of Georgia, Waycross Division, stays all
pretrial and discovery deadlines in the case, MEDCHOICE RISK
RETENTION GROUP, INC., Plaintiff v. MAHENDRA AMIN, M.D., Defendant,
Civil Action No. 5:21-cv-54 (S.D. Ga.).
The matter is before the Court on the parties' Joint Status Report
and the telephonic Status Conference held on May 3, 2022. The case
concerns the Plaintiff's duty to defend or indemnify the Defendant
in a currently pending class action out of the Middle District of
Georgia. Discovery in the class action has been stayed due to
ongoing government investigations and potential criminal
proceedings arising from those investigations.
The parties indicate they have completed all discovery necessary in
the case. However, the parties believe settlement efforts would be
fruitless at this point because defense costs and potential
indemnity costs are currently unknown and may not arise at all. For
this reason, they request a stay. At the status conference, the
parties clarified the stay would not need to last throughout the
entirety of both the government investigations and the class
action. Instead, they ask for pretrial deadlines in the action to
be stayed until it can be determined if the class action will
proceed at all.
Given the representations of the parties, Judge Cheesbro grants the
Motion and stays all pretrial and discovery deadlines in the case.
He further directs the parties to submit periodic, joint updates
every 90 days while the stay is pending. In those updates, the
parties should provide the Court with an update to the pending,
underlying matters and include if one or both parties are seeking
an extension of a stay. The first joint update is due on or before
Aug. 1, 2022.
A full-text copy of the Court's May 10, 2022 Order is available at
https://tinyurl.com/5n7b6p7n from Leagle.com.
META PLATFORMS: BIPA Class Action Settlement Payouts Begin
----------------------------------------------------------
WLS reports that Facebook users in Illinois who applied to collect
a settlement stemming from a class action lawsuit could see their
payment any day now.
According to the settlement administrator, paper checks and
electronic payments began going out on May 9.
The lawsuit was filed over Facebook's collection and storing of
biometric data of Illinois users without proper consent. As part of
the $650 million settlement, claimants will receive payments of
between $200-$400.
Those covered by the settlement include Facebook users located in
Illinois for whom Facebook created and stored a face template after
June 7, 2011.
Claimants must have been a resident of Illinois for at least 183
days (six months) to be eligible.
It could take up to two weeks for all the payments to go out, so
claimants are being urged to wait until mid-June before making an
inquiry. [GN]
META PLATFORMS: Faces Citizenship Bias Class Action in California
-----------------------------------------------------------------
Amanda Ottaway, writing for Law360, reports that Facebook's new
parent company was slammed with a putative class action lawsuit in
California federal court Tuesday by a job applicant who is a U.S.
citizen and accuses of Meta Platforms Inc. of not hiring him in
favor of certain visa holders it could pay less. [GN]
META PLATFORMS: Rajaram Sues Over Citizenship-Based Discrimination
------------------------------------------------------------------
PURUSHOTHAMAN RAJARAM, individually and on behalf of all others
similarly situated, Plaintiff v. META PLATFORMS, INC., Defendant,
Case No. 3:22-cv-02920 (N.D. Cal., May 17, 2022) is a class action
against the Defendant for disparate treatment on the basis of
citizenship in violation of 42 U.S. Code Sec. 1981.
According to the complaint, the Defendant has engaged in a pattern
and practice of discriminating against individuals who are not visa
holders by: (a) knowingly and intentionally favoring individuals
with visas in job placement and (b) knowingly and intentionally
disfavoring individuals who are not visa holders, including the
Plaintiff in job placement. As a direct and proximate result of the
Defendant's intentional discrimination, the Plaintiff and Class
members have been denied employment and positions with Facebook.
Meta Platforms, Inc., also known as Facebook, is an American social
networking and technology company, headquartered in Menlo Park,
California. [BN]
The Plaintiff is represented by:
Daniel Low, Esq.
KOTCHEN & LOW LLP
1918 New Hampshire Avenue NW
Washington, DC 20009
Telephone: (202) 471-1995
Facsimile: (202) 280-1128
E-mail: dlow@kotchen.com
MICHAELS ORGANIZATION: Faces Suit Over Military Housing Conditions
------------------------------------------------------------------
Jacob Wallace, writing for Bisnow, reports that Fort Belvoir
families file class-action suit over 'horrific' conditions in
private military housing.
When Raven Roman moved to Fort Belvoir, Virginia, with her husband,
Jorge, an officer who has served in the U.S. Army for more than 18
years, she expected the house they rented from The Michaels
Organization to be safe and updated.
Instead, when she moved her three young children into the house at
5200 Stable Court, which Michaels manages as a private military
housing contractor on the 8,700-acre Army base, carpenter ants had
moved in first, entering the home from multiple points. Slugs
started to appear under the kitchen sink, and the carpet she was
told was freshly installed sported thumbtacks, rusty nails and
ramen noodles, she said. [GN]
MINOR LEAGUE: Settles Minor League Players' Wage Class Action
-------------------------------------------------------------
Matt Borelli, writing for Dodger Blue, reports that on Feb. 7,
2014, three Minor League Baseball players filed a class action
lawsuit against MLB, claiming violations of state and federal
minimum wage laws.
A trial had been scheduled to begin on June 1 in U.S. District
Court in San Francisco, Calif. Lawyers representing MLB argued that
Minor League players do not deserve to be paid during Spring
Training.
Many believed a trial would have been damaging to the league, but
one is no longer necessary as MLB and the Minor League players
reached a preliminary settlement in the class action lawsuit, per
Even Drellich of The Athletic:
"We are pleased to report that the parties have reached a
settlement in principle in this over 8-year-old case, subject to
court approval," counsel for the players said in a statement. "We
look forward to filing preliminary approval papers with the court
and cannot comment further until then."
A spokesperson for MLB declined comment.
Terms of the settlement were not immediately disclosed in filings
submitted in the case, but one report suggested the sides were
discussing a possible payment in the $200 million range in recent
weeks.
The plaintiffs have requested until July 11 to file the approval
papers.
Minor League Baseball players take step toward forming union
Minor League players typically aren't paid during Spring Training,
but many around the sport are looking to change that. More than
1,000 Minor League players signed a petition asking MLB to
compensate them for their work in Spring Training.
MLB has argued in the past that Minor League players are seasonable
employees, making them exempt from minimum wage laws. However, a
federal ruling in March stated that Minor Leaguers are year-round
employees and should be paid accordingly.
Several Minor Leaguers who spoke on the condition of anonymity said
the petition is a step toward unionizing. [GN]
MOHAWK INDUSTRIES: Filing of Class Status Bid Due April 11, 2023
----------------------------------------------------------------
In the class action lawsuit captioned as Nico Cruz v. MOHAWK
INDUSTRIES, INC., ET AL., Case No. (), the Court entered a class
action scheduling conference order as follows:
-- Initial Disclosures: June 16, 2022
-- Amendment to Pleadings: August 22, 2022
-- Nonexpert Discovery Cutoff: March 3, 2023
-- Mid-Discovery Conference: December 12, 2022
-- Motion for Class April 11, 2023
Certification:
-- Opposition to Class June 9, 2023
Certification:
-- Reply Re: Class June 19, 2023
Certification:
-- Hearing Re: Class July 14, 2023
Certification:
Mohawk Industries is an American flooring manufacturer based in
Calhoun, Georgia, United States. Mohawk produces floor covering
products for residential and commercial applications in North
America and residential applications in Europe.
A copy of the Court's order dated May 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3sJzkYK at no extra charge.[CC]
MOORE ST: Unlawfully Evicts Apartment Tenants, Ramsey Suit Claims
-----------------------------------------------------------------
AARON RAMSEY, individually and on behalf of all others similarly
situated, Plaintiff v. MOORE ST. INVESTMENTS, INC.; HOTEL
INVESTMENT GROUP, INC.; ISTAY USA LLC; BHAVESH PATEL; DARSHAN
PATEL; DENA MOTTOLA; RICHARD MATTHEWS; and DOES 1-25, inclusive,
Defendants, Case No. 37-2022-00018713-CU-BC-CTL (Cal. Super., Los
Angeles Cty., May 17, 2022) is a class action against the
Defendants for breach of contract, breach of the covenant of quiet
enjoyment, and violation of California's Unfair Competition Law.
The case arises from the Defendants' alleged unlawful eviction of
the Plaintiff and other tenants from their apartment complex
located at 2254 Moore St., San Diego, California. The Plaintiff and
Class members assert that the Defendants' Sixty-Day Notice of
Termination of Tenancy and eviction of all tenants residing at the
Defendants' apartment complexes violate landlord/tenant laws in San
Diego Municipal Code.
Moore St. Investments, Inc. is an investment firm located in San
Diego County, California.
Hotel Investment Group, Inc. is a real estate company based in San
Diego County, California.
iStay USA LLC is a limited liability company based in San Diego
County, California. [BN]
The Plaintiff is represented by:
Stephen B. Morris, Esq.
LAW OFFICES OF STEPHEN B. MORRIS
2305 Historic Decatur Rd.
San Diego, CA 92106
Telephone: (619) 985-4462
E-mail: morris@sandiegolegal.com
- and –
Peggy J. Reali, Esq.
REALI LAW, A.P.C.
1804 Garnet Ave., Suite 475
San Diego, CA 92109
Telephone: (858) 255-8099
Facsimile: (619) 923-3400
E-mail: preali@realilaw.com
MORECOMMERCE INC: Chalas Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Morecommerce, Inc.
The case is styled as Ana Chalas, individually, and on behalf of
all others similarly situated v. Morecommerce, Inc., Case No.
1:22-cv-03962 (S.D.N.Y., May 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
MoreCommerce Inc. -- https://www.morecommerce.com/ -- is a network
of solutions that empower trade for small and medium-sized
businesses (SMBs) and brands.[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
MORGAN STANLEY: Watters Labor Code Suit Goes to N.D. California
---------------------------------------------------------------
The case styled DAWN WATTERS, individually and on behalf of all
others similarly situated v. MORGAN STANLEY SMITH BARNEY LLC and
DOES 1 through 50, inclusive, Case No. SCV-270269, was removed from
the Superior Court of the State of California for the County of
Sonoma to the U.S. District Court for the Northern District of
California on May 16, 2022.
The Clerk of Court for the Northern District of California assigned
Case No. 3:22-cv-02912 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California Business & Professions
Code including unfair competition, failure to pay minimum wages,
failure to pay overtime wages, failure to provide required meal
periods, failure to provide required rest breaks, failure to
provide accurate itemized wage statements, failure to reimburse
employees for necessary business expenses, and failure to pay wages
when due.
Morgan Stanley Smith Barney LLC is a financial services company
headquartered in New York, New York. [BN]
The Defendant is represented by:
Andrew R. Livingston, Esq.
Rachel Capler, Esq.
ORRICK, HERRINGTON & SUTCLIFFE LLP
The Orrick Building
405 Howard Street
San Francisco, CA 94105-2669
Telephone: (415) 773-5700
Facsimile: (415) 773-5759
E-mail: alivingston@orrick.com
rcapler@orrick.com
MRS BPO: Maldonado FDCPA Suit Removed to N.D. Illinois
------------------------------------------------------
The case styled as Robert Maldonado, on behalf of himself and all
others similarly situated v. MRS BPO, L.L.C. d/b/a MRS Associates
of New Jersey, Case No. 2022CH01651 was removed from the Circuit
Court of Cook County, Illinois, to the U.S. District Court for the
Northern District of Illinois on May 17, 2022.
The District Court Clerk assigned Case No. 1:22-cv-02601 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.
MULLEN AUTOMOTIVE: Glancy Prongay Reminds of July 5 Deadline
------------------------------------------------------------
Glancy Prongay & Murray LLP ("GPM") reminds investors of the
upcoming July 5, 2022 deadline to file a lead plaintiff motion in
the class action filed on behalf of investors who purchased or
otherwise acquired Mullen Automotive, Inc. f/k/a Net Element, Inc.
("Mullen" or the "Company") (NASDAQ: MULN) securities between June
15, 2020 and April 6, 2022, inclusive (the "Class Period").
If you suffered a loss on your Mullen investments or would like to
inquire about potentially pursuing claims to recover your loss
under the federal securities laws, you can submit your contact
information at www.glancylaw.com/cases/mullen-automotive-inc/. You
can also contact Charles H. Linehan, of GPM at 310-201-9150,
Toll-Free at 888-773-9224, or via email at
shareholders@glancylaw.com to learn more about your rights.
On April 6, 2022, Hindenburg Research published a report alleging,
among other things, that Mullen misrepresented results of certain
battery testing. Furthermore, the report claimed that a 2020 joint
venture to manufacture Mullen's battery technology "didn't exist at
all" and was "an apparent fabrication."
On this news, Mullen's stock fell $0.34, or 12.5%, over two
consecutive trading sessions to close at $2.38 per share on April
7, 2022, thereby injuring investors.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to investors
that: (1) Mullen overstated its ability and timeline regarding
production; (2) Mullen overstated its deals with business partners,
including Qiantu Motors; (3) Mullen overstated its battery
technology and capabilities; (4) Mullen overstated 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, Defendants' positive statements about the Company's
business, operations, and prospects were materially misleading
and/or lacked a reasonable basis at all relevant times.
If you purchased or otherwise acquired Mullen securities during the
Class Period, you may move the Court no later than July 5, 2022 to
request appointment as lead plaintiff in this putative class action
lawsuit. To be a member of the class action you need not take any
action at this time; you may retain counsel of your choice or take
no action and remain an absent member of the class action. If you
wish to learn more about this class action, or if you have any
questions concerning this announcement or your rights or interests
with respect to the pending class action lawsuit, please contact
Charles Linehan, Esquire, of GPM, 1925 Century Park East, Suite
2100, Los Angeles, California 90067 at 310-201-9150, Toll-Free at
888-773-9224, by email to shareholders@glancylaw.com, or visit our
website at www.glancylaw.com. If you inquire by email please
include your mailing address, telephone number and number of shares
purchased.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
Contacts
Glancy Prongay & Murray LLP, Los Angeles
Charles Linehan, 310-201-9150 or 888-773-9224
shareholders@glancylaw.com
www.glancylaw.com [GN]
NATIONAL FOOTBALL: Casey's Suit Alleges Monopoly of NFL Products
----------------------------------------------------------------
CASEY'S DISTRIBUTING, INC. and SPORTZ ZONE, INC., individually and
on behalf of all others similarly situated, Plaintiffs v. NATIONAL
FOOTBALL LEAGUE, INC.; NATIONAL FOOTBALL LEAGUE PROPERTIES, LLC.;
NFL ENTERPRISES LLC; ARIZONA CARDINALS FOOTBALL CLUB LLC; ATLANTA
FALCONS FOOTBALL CLUB, LLC; BALTIMORE RAVENS LIMITED PARTNERSHIP;
BUCCANEERS TEAM LLC; BUFFALO BILLS LLC; CAROLINA PANTHERS, LLC; THE
CHICAGO BEARS FOOTBALL CLUB, INC.; CHARGERS FOOTBALL COMPANY, LLC;
CINCINNATI BENGALS, INC.; CLEVELAND BROWNS FOOTBALL COMPANY, LLC;
DALLAS COWBOYS FOOTBALL CLUB, LTD.; DETROIT LIONS, INC.; FOOTBALL
NORTHWEST LLC; GREEN BAY PACKERS, INC.; HOUSTON NFL HOLDINGS, L.P.;
INDIANAPOLIS COLTS, INC.; JACKSONVILLE JAGUARS LLC; KANSAS CITY
CHIEFS FOOTBALL CLUB, INC.; LAS VEGAS RAIDERS FOOTBALL LLC; MIAMI
DOLPHINS LTD.; MINNESOTA VIKINGS FOOTBALL LLC; NEW ENGLAND PATRIOTS
LLC; NEW ORLEANS LOUISIANA SAINTS, LLC; NEW YORK FOOTBALL GIANTS,
INC.; NEW YORK JETS FOOTBALL CLUB, INC.; PDB SPORTS, LTD. d/b/a
DENVER BRONCOS FOOTBALL CLUB; THE PHILADELPHIA EAGLES FOOTBALL CLUB
INC.; PITTSBURGH STEELERS SPORTS INC.; THE RAMS FOOTBALL COMPANY
LLC; SAN FRANCISCO FORTY NINERS II, LLC; TENNESSEE FOOTBALL, INC.;
WASHINGTON FOOTBALL, INC.; and FANATICS, INC., Defendants, Case No.
1:22-cv-03934 (S.D.N.Y., May 13, 2022) is a class action against
the Defendants for violations of Sections 1, 2, and 3 of the
Sherman Act including conspiracy in restraint trade,
monopolization, attempted monopolization, and conspiracy to
monopolize.
According to the complaint, the National Football League teams and
Fanatics, Inc. entered into various agreements to dominate the
licensed sporting goods market. Fanatics acquired its dominance by
excluding smaller competitors like the Plaintiffs through the NFL's
recently implemented restrictions that prohibit competing retailer
entities such as the Plaintiffs from selling on Amazon's
third-party online marketplace (TPOM). The NFL aids and abets
Fanatics because it has invested well over $400 million in Fanatics
to become a large equity shareholder. As Fanatics' value grows, so
does the value of the NFL's equity share in Fanatics. As a result
of the Defendants' alleged anticompetitive conduct, the Plaintiffs
and other online retailers of NFL licensed products have been
denied the opportunity to sell on Amazon's TPOM.
Casey's Distributing, Inc. is a retailer of licensed hardgoods,
headquartered in Nebraska.
Sportz Zone, Inc. is a retailer of licensed products, headquartered
in Florida.
National Football League, Inc. is an association of professional
football teams in the United States.
National Football League Properties, LLC is a company that
represents the NFL for the licensing of their trademarks and logos,
headquartered in New York, New York.
NFL Enterprises LLC is a company that owns NFLShop.com,
headquartered in New York, New York.
Arizona Cardinals Football Club LLC is a professional football team
based in Arizona.
Atlanta Falcons Football Club, LLC is a professional football team
based in Georgia.
Baltimore Ravens Limited Partnership is a professional football
team based in Maryland.
Buccaneers Team LLC is a professional football team based in
Florida.
Buffalo Bills LLC is a professional football team based in New
York.
Carolina Panthers, LLC is a professional football team based in
North Carolina.
The Chicago Bears Football Club, Inc. is a professional football
team based in Illinois.
Chargers Football Company, LLC is a professional football team
based in California.
Cincinnati Bengals, Inc. is a professional football team based in
Ohio.
Cleveland Browns Football Company, LLC is a professional football
team based in Ohio.
Dallas Cowboys Football Club, Ltd. is a professional football team
based in Texas.
Detroit Lions, Inc. is a professional football team based in
Michigan.
Football Northwest LLC is a professional football team based in
Washington.
Green Bay Packers, Inc. is a professional football team based in
Wisconsin.
Houston NFL Holdings, L.P. is a professional football team based in
Texas.
Indianapolis Colts, Inc. is a professional football team based in
Indiana.
Jacksonville Jaguars LLC is a professional football team based in
Florida.
Kansas City Chiefs Football Club, Inc. is a professional football
team based in Missouri.
Las Vegas Raiders Football LLC is a professional football team
based in Nevada.
Miami Dolphins Ltd. is a professional football team based in
Florida.
Minnesota Vikings Football LLC is a professional football team
based in Minnesota.
New England Patriots LLC is a professional football team based in
Massachusetts.
New Orleans Louisiana Saints, LLC is a professional football team
based in Louisiana.
New York Football Giants Inc. is a professional football team based
in New Jersey.
New York Jets Football Club, Inc. is a professional football team
based in New Jersey.
PDB Sports, Ltd., doing business as Denver Broncos Football Club,
is a professional football team based in Colorado.
The Philadelphia Eagles Football Club Inc. is a professional
football team based in Pennsylvania.
Pittsburgh Steelers Sports Inc. is a professional football team
based in Pennsylvania.
The Rams Football Company LLC is a professional football team based
in California.
San Francisco Forty Niners II, LLC is a professional football team
based in California.
Tennessee Football, Inc. is a professional football team based in
Tennessee.
Washington Football, Inc. is a professional football team based in
Virginia.
Fanatics, Inc. is a manufacturer, supplier, distributor, and
retailer of licensed sportswear, sports equipment, and merchandise,
headquartered in Jacksonville, Florida. [BN]
The Plaintiffs are represented by:
Justin S. Nematzadeh, Esq.
NEMATZADEH PLLC
101 Avenue of the Americas, 9th Floor
New York, NY 10013
Telephone: (646) 799-6729
E-mail: jsn@nematlawyers.com
- and –
Solomon B. Cera, Esq.
Thomas C. Bright, Esq.
Kenneth A. Frost, Esq.
CERA LLP
595 Market Street, Suite 1350
San Francisco, CA 94105
Telephone: (415) 777-2230
E-mail: scera@cerallp.com
tbright@cerallp.com
kfrost@cerallp.com
- and –
Bryan L. Clobes, Esq.
CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP
205 N. Monroe St.
Media, PA 19063
Telephone: (215) 864-2800
E-mail: bclobes@caffertyclobes.com
- and –
Nyran Rose Rasche, Esq.
CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP
135 South LaSalle Street, Suite 3210
Chicago, IL 60603
Telephone: (312) 782-4880
E-mail: nrasche@caffertyclobes.com
NEIGHBORLY VENTURES: Naylor Suit Removed to D. Oregon
-----------------------------------------------------
The case styled as Austin Naylor, individually and on behalf of all
others similarly situated v. Neighborly Ventures, Inc., MWIC
Boulevard, LLC, Case No. 22CV00003 was removed from the Oregon
Circuit Court - Benton County, to the U.S. District Court for the
District of Oregon on May 16, 2022.
The District Court Clerk assigned Case No. 6:22-cv-00719-MK to the
proceeding.
The nature of suit is stated as Other P.I. for Personal Injury.
Neighborly Ventures -- https://www.theneighborlyway.com/ -- is a
real estate firm that provides real estate development,
construction, asset, and property management services.[BN]
The Plaintiff is represented by:
Troy A. Pickard, Esq.
PORTLAND DEFENDER, LLC
1001 SW 5th Ave. #1100
Portland, OR 97204
Phone: (503) 592-0606
Email: troy@portlanddefender.com
The Defendants are represented by:
Christopher E. Hawk, Esq.
GORDON & REES, LLP
1300 SW 5th Avenue, Suite 2000
Portland, OR 97201
Phone: (503) 227-8269
Email: chawk@grsm.com
NEW YORK: Filing of Class Certification Bid Extended to June 28
---------------------------------------------------------------
In the class action lawsuit captioned as Cardew, et al., v. New
York State Department of Corrections and Community Supervision, et
al., Case No. 6:21-cv-06557 (W.D.N.Y.), the Hon. Judge Mark W.
Pedersen entered an order on motion for extension of time to file
deadline to file motion for class certification is now June 28,
2022.
The suit alleges violation of the American with Disabilities Act.
The New York State Department of Corrections and Community
Supervision is the department of the New York State government that
maintains the state prisons and parole system.[CC]
NORTHERN MANAGEMENT: Fails to Pay Proper Wages, Dufrane Alleges
---------------------------------------------------------------
MATTHEW DUFRANE, individually and on behalf of all others similarly
situated, Plaintiff v. NORTHERN MANAGEMENT LLC, Defendant, Case No.
22-cv-582 (E.D. WI., May 17, 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 Dufrane was employed by the Defendant as maintenance
crew.
NORTHERN MANAGEMENT LLC provides property management services.
[BN]
The Plaintiff is represented by:
Scott S. Luzi, Esq.
James A. Walcheske, Esq.
David M. Potteiger, Esq.
WALCHESKE & LUZI, LLC
235 N. Executive Drive, Suite 240
Brookfield, Wisconsin 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
Email: sluzi@walcheskeluzi.com
jwalcheske@walcheskeluzi.com
dpotteiger@walcheskeluzi.com
NYC HEALTH: Faces Kociubinski Suit Over Nurses' Unpaid Overtime
---------------------------------------------------------------
The case, RENATA KOCIUBINSKI, on behalf of herself and others
similarly situated in the proposed FLSA Collective Action,
Plaintiff v. NYC HEALTH AND HOSPITAL CORP. (d/b/a Coney Island
Hospital), Defendant, Case No. 1:22-cv-02865 (E.D.N.Y., May 16,
2022) arises from the Defendant's alleged violations of the Fair
Labor Standards Act (FLSA) and New York Labor Law (NYLL).
The Plaintiff was employed by the Defendant as a nurse from on or
around August 9, 1993 through and including the present date.
According to the complaint, the Plaintiff and other similarly
situated nurses were not properly compensated by the Defendant. The
Plaintiff claims that beginning on or around September 2021, the
Defendant did not fully compensate her for her on-call shifts or
overtime card shifts. The Plaintiff and other similarly situated
nurses never received an overtime premium of one and-half times
their agreed-upon regular rate of pay for four overtime hours
worked. In addition, the Defendant failed to provide them with any
notice regarding their wages, and with statement of wages as
required by the NYLL.
On behalf of herself and all other similarly situated nurses, the
Plaintiff brings this complaint seeking injunctive and declaratory
relief and to recover unpaid minimum wages, overtime wages,
liquidated and statutory damages, pre- and post-judgment interest,
and attorneys' fees and costs pursuant to the FLSA, NYLL, and the
NYLL's Wage Theft Prevention Act (WTPA).
NYC Health and Hospital Corp. (d/b/a Coney Island Hospital) owns,
operates and/or controls a hospital and medical services and care
facility known as “Coney Island Hospital” located at 2601 Ocean
Pkwy Brooklyn, NY 11235. [BN]
The Plaintiff is represented by:
Joshua Levin-Epstein, Esq.
Jason Mizrahi, Esq.
LEVIN-EPSTEIN & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4700
New York, NY 10165
Tel: (212) 792-0046
E-mail: Joshua@levinepstein.com
NYLIFE SECURITIES: Cause Needed to Extend Discovery in Bradford
---------------------------------------------------------------
In the case, RADLEY BRADFORD, individually, and on behalf of all
others similarly situated, Plaintiff v. NYLIFE SECURITIES LLC, a
New York company, Defendant, Case No. 22 Civ. 1931 (AT) (S.D.N.Y.),
Judge Analisa Torres of the U.S. District Court for the Southern
District of New York ordered the parties to submit a letter
providing good cause for an extension of the fact discovery
period.
Judge Torres has reviewed the parties proposed case management plan
and scheduling order. In the proposed order, the parties request
295 days for fact discovery because "the case is a putative class
action." Based on this explanation, Judge Torres does not find that
the case presents unique complexities or other exceptional
circumstances that would warrant such a profound departure from the
Court's standard practice of allowing 120 days for fact discovery.
Accordingly, the parties will submit a letter providing good cause
for an extension of the fact discovery period. If they fail to do
so, the Court will issue an order allowing 120 days for fact
discovery.
A full-text copy of the Court's May 10, 2022 Order is available at
https://tinyurl.com/2ye668ts from Leagle.com.
OCEAN AVENUE: Moreno Files Suit in Cal. Super. Ct.
--------------------------------------------------
A class action lawsuit has been filed against Ocean Avenue
Veterinary Hospital, Inc. The case is styled as Abigail Moreno,
individually and on behalf of all, others similarly situated v.
Ocean Avenue Veterinary Hospital, Inc., Case No. CGC21597124 (Cal.
Super. Ct., San Francisco Cty., May 16, 2022).
The case type is stated as "Other Non-Exempt Complaints."
Brinker International, Inc. -- https://brinker.com/ -- owns,
operates, and franchises the Chili's Grill & Bar and Maggiano's
Little Italy restaurant concepts.[BN]
The Plaintiff is represented by:
Robert Ottinger, Esq.
OTTINGER EMPLOYMENT LAWYERS
535 Mission St 14th Floor,
San Francisco, CA 94105
Phone: 415-508-7786
Email: robert@ottingerlaw.com
OLIVER TWIST INC: Delva Files Suit in Mass. Super. Ct.
------------------------------------------------------
A class action lawsuit has been filed against Oliver Twist, Inc.,
et al. The case is styled as Theodate Delva, on behalf of Himself
and all others similarly situated v. Oliver Twist, Inc. Doing
Business as Cask 'N Flagon, Bruce N. Van Fleet, IV, Dana W. Van
Fleet, Case No. 2281CV02220 (Mass. Super. Ct., Middlesex Cty., May
17, 2022).
The nature of suit is stated as "Contract/Business Cases."
Oliver Twist, Inc. doing Business as Cask 'N Flagon --
https://casknflagon.com/ -- is a raucous, TV-packed sports bar with
a long beer list, pub fare & views of Fenway from the patio.[BN]
The Plaintiff is represented by:
Joshua William Gardner, Esq.
GARDNER AND ROSENBERG, P.C.
One State St Fourth Floor
Boston, MA 02109
ONE SOURCE: Harris FCRA Suit Removed to W.D. Missouri
-----------------------------------------------------
The case styled RANDY HARRIS, individually and on behalf of all
others similarly situated v. ONE SOURCE TECHNOLOGY, LLC a/k/a
ASURINT, Case No. 22CN-CC00018, was removed from the Circuit Court
of Clinton County, Missouri, to the U.S. District Court for the
Western District of Missouri on May 13, 2022.
The Clerk of Court for the Western District of Missouri assigned
Case No. 5:22-cv-06054-DGK to the proceeding.
The case arises from the Defendant's alleged violation of the Fair
Credit Reporting Act.
One Source Technology, LLC, also known as Asurint, is a provider of
web-based employment background screening solutions based in Ohio.
[BN]
The Defendant is represented by:
Rosalee McNamara, Esq.
LATHROP GPM LLP
2345 Grand Blvd., Ste. 2200
Kansas City, MO 64108
Telephone: (816) 460-5604
Facsimile: (816) 292-2001
E-mail: Rosalee.mcnamara@lathropgpm.com
ONE WISH: Feliz Files ADA Suit in S.D. New York
-----------------------------------------------
A class action lawsuit has been filed against One Wish, L.L.C. The
case is styled as Roberta Feliz, individually, and on behalf of all
others similarly situated v. One Wish, L.L.C., Case No.
1:22-cv-03982 (S.D.N.Y., May 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
One Wish, L.L.C. -- was founded in 2003. The company's line of
business includes the wholesale distribution of electrical
apparatus and equipment wiring supplies.[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
OREGON: Faces Class Action Over Lack of Public Defenders
--------------------------------------------------------
Noelle Crombie, writing for The Oregonian/OregonLive, reports that
four people facing criminal charges have filed a class-action
lawsuit against the state over its failure to appoint a defense
lawyer for them.
The suit raises the stakes for a criminal justice system described
by independent evaluators and court officials alike as in the midst
of a constitutional crisis.
Kpana Benjamin, 25, of Portland, Nicolas Torrez, 49, of Salem,
Maxwell Floyd, 28, of Tigard and Bradford Franks, 35, of Portland
are listed as plaintiffs on the lawsuit filed on May 16 in
Multnomah County Circuit Court.
The lawsuit alleges that each of the four have waited weeks to get
a lawyer.
The lawsuit also argues that the state's inability to promptly
appoint defense attorneys disproportionately affects Black
defendants. Benjamin is Black, Torrez is Hispanic and Franks and
Floyd are white.
The lawsuit names Gov. Kate Brown and Stephen Singer, executive
director of Oregon's Office of Public Defense Services, which
manages the state's public defense system.
Singer declined to comment, saying his office had not yet been
served with the complaint. The governor's office declined to
comment.
The lawsuit is the latest challenge facing Oregon's public defense
system. Managers of the system say they don't have enough public
defenders to assign to cases and that recruitment is difficult
because public defense lawyers are often underpaid and overworked.
An outside consultant's report issued in March found the public
defense system has trouble executing basic functions like paying
lawyers and investigators equitably and on time and lacks a system
to hold lawyers accountable for their work.
A separate report by the American Bar Association found Oregon's
public defense system is severely understaffed and needs an
additional 1,300 lawyers to meet the demands of the criminal
justice system.
According to the lawsuit, about 500 indigent defendants across the
state are without counsel, despite having been arraigned in
criminal court. About 30 of them are in custody.
Torrez faces strangulation and fourth-degree assault allegations
related to domestic violence in Marion County. Floyd is accused of
multiple sex crimes and luring a minor in Washington County. Franks
faces domestic violence-related allegations of strangulation and
assault in Multnomah County.
Benjamin will be replaced in the suit after the case against her
was dropped on May 16, said a lawyer for the plaintiffs.
The Multnomah County District Attorney's Office, citing the lack of
a defense lawyer, declined to pursue the case, though prosecutors
can refile the same charges against her at a later date.
Floyd, the only plaintiff who is in custody, was booked into the
Washington County Jail on April 25. The lawsuit alleges Floyd is
being held on a bail amount he cannot afford and that he is unable
to argue for a lower bail without an attorney.
Franks made two court appearance without a lawyer and has another
one scheduled for June 2.
In Torrez's case, a Marion County court clerk gave him a piece of
paper with the number for public defense services. He called, left
a message and did not hear back. He followed up multiple times over
the subsequent two weeks and did not get a response, according to
the lawsuit. At another court appearance, he was again told to call
the public defense agency. He did. No one responded, the suit
says.
The lawsuit points out that Black defendants who are indigent are
more likely to be jailed while awaiting trial and are more likely
to be prosecuted, convicted, sentenced and incarcerated than white
defendants.
"As such, the consequences of the State's failure to provide
indigent defendants with an attorney within a reasonable time are
magnified for Black" people, the lawsuit says.
Of the 83 defendants waiting for a lawyer in the state as of April
29, 19, or 23%, were Black, even though Black people make up less
than 3% of the state's population, the lawsuit says.
In Multnomah County, about 20% of defendants who were waiting for
lawyers as of May 11 were Black.
The lawsuit also cites data showing Black defendants are
represented by public defenders at a higher rate than white
defendants. [GN]
OSCAR HEALTH: Faces Suit Over Misleading Registration Statements
----------------------------------------------------------------
Susan Kelly, writing for Healthcare Dive, reports that an Oscar
Health shareholder has filed a lawsuit, seeking class action
certification, that claims the insurer omitted information it was
required to disclose about the potential impact of the COVID-19
pandemic on its operations ahead of the company's March 2021
initial public offering.
In the complaint, filed on May 12 in the U.S. District Court for
the Southern District Court of New York, shareholder Lorin
Carpenter accuses Oscar of violating the Securities Act by filing a
"false and misleading" registration statement. Oscar omitted from
the statement that its COVID-19 testing and treatment costs were
increasing and that significant membership growth during the
special enrollment period for marketplace plans would negatively
affect its business, the suit alleges.
As a result, Carpenter and other class members suffered significant
losses and damages, the complaint says. Oscar Health did not
respond to a request for comment on the lawsuit.
Dive Insight:
The insurance marketplaces created under the Affordable Care Act
are a key business driver for Oscar, which saw its overall
membership nearly double at the end of the first quarter of this
year, to 1.1 million people, compared to a year ago.
But the insurtech startup, along with its peers Clover Health and
Bright Health Group, has seen medical loss ratios jump during the
pandemic due to elevated COVID-19 costs and new members acquired
during the special enrollment period.
In its IPO, Oscar Health sold more than 36 million shares at $39
per share, receiving about $1.3 billion from the offering. Five
months later, the company reported its medical loss ratio was 82.4%
for the second quarter of 2021, up from 60.7% in the year-ago
period, according to the lawsuit. Its second-quarter loss widened
by $32.1 million from the prior year, to $73.1 million.
The shareholder lawsuit also contends that Oscar failed to disclose
in its registration statement that it would be negatively affected
by a risk adjustment data validation audit.
In November, Oscar Health said its third-quarter MLR rose to 99.7%,
and it reported a net loss of $212.7 million, an increase of $133.6
million from the previous year. The company said higher COVID-19
costs, special enrollment member growth and an unfavorable risk
adjustment data validation audit for 2019 and 2020 drove the MLR
increase.
The company's shares tumbled nearly 25% to $12.47 after the
November disclosures and subsequently traded as low as $5.76, an
85% decline from the IPO price, according to the lawsuit. The stock
closed at $5.83 on May 13 on the New York Stock Exchange.
Also named in the suit are company executives including Oscar
Health co-founders CEO Mario Schlosser and Vice Chairman Joshua
Kushner, and several investment banks.
Oscar Health earlier this month said it will exit the Arkansas and
Colorado markets next year while remaining in 20 states as it
refocuses its strategy to achieve profitability. The 10-year-old
company aims to turn a profit in 2023. [GN]
OSCAR HEALTH: Lieff Cabraser Reminds of July 11 Deadline
--------------------------------------------------------
The law firm of Lieff Cabraser Heimann & Bernstein, LLP on May 17
disclosed that class action litigation has been filed on behalf of
investors who purchased or otherwise acquired Class A common stock
of Oscar Health, Inc. ("Oscar" or the "Company") (NYSE: OSCR)
pursuant and/or traceable to Oscar's registration statement and
prospectus (collectively, the "Registration Statement") issued in
connection with its March 2021 initial public offering (the
"IPO").
If you purchased or otherwise acquired Oscar Class A common stock
in the IPO, you may move the Court for appointment as lead
plaintiff by no later than July 11, 2022. A lead plaintiff is a
representative party who acts on behalf of other class members in
directing the litigation. Your share of any recovery in the actions
will not be affected by your decision of whether to seek
appointment as lead plaintiff. You may retain Lieff Cabraser, or
other attorneys, as your counsel in the action.
Oscar investors who wish to learn more about the litigation and how
to seek appointment as lead plaintiff should click here, text or
email investorinfo@lchb.com, or call Sharon M. Lee of Lieff
Cabraser at 1-800-541-7358.
Background on the Oscar Securities Class Litigation
Oscar, headquartered in Manhattan, New York, is a health insurance
company that claims to be "built around a full stack technology
platform" which allows the company to "continue to innovate like a
technology company and not a traditional insurer." In March 2021,
Oscar Health completed its IPO, selling 36 million shares of Class
A common stock at $39 per share, for proceeds of approximately $1.3
billion.
The action alleges that the IPO Registration Statement was
materially false and misleading and omitted to state: (1) that
Oscar was experiencing growing COVID-19 testing and treatment
costs; (2) that Oscar was experiencing growing net COVID costs; (3)
that Oscar would be negatively impacted by an unfavorable prior
year Risk Adjustment Data Validation ("RADV") result relating to
2019 and 2020; and (4) that Oscar was on track to be negatively
impacted by significant Special Enrollment Period ("SEP")
membership growth.
On August 12, 2021, Oscar revealed that its Medical Loss Ratio
("MLR") for the second quarter of 2021 increased to 82.4%, compared
to 60.7% in the second quarter of 2020, and was "primarily driven
by meaningfully lower utilization in 2Q20 as a result of COVID-19,
as well as higher COVID-19 testing and treatment costs and a return
to more normalized utilization in 2Q21." Oscar also disclosed that
its net loss for the quarter was $73.1 million, an increase of
$32.1 million year-over-year.
On November 10, 2021, Oscar reported that its third quarter 2021
MLR increased to 99.7%, claiming that the increase was largely
attributable to "higher net COVID costs as compared to the net
benefit in 3Q20, an unfavorable prior year [RADV] result, and the
impact of significant SEP membership growth." Oscar also disclosed
that its net loss for the quarter was $212.7 million, an increase
of $133.6 million year-over-year. On the same day, Oscar's CEO
revealed during an earnings conference call with analysts and
investors that the Company "recognized approximately $20 million of
risk adjustment expense this quarter related to our risk adjustment
data validation audit or RADV results. The RADV exercise is
atypical this year due to COVID. It spans two years, 2019 and 2020.
The majority of the RADV headwinds relate to the 2019 audit
results, which were recently completed." On this news, the price of
Oscar's stock price fell $4.05 per share, or $24.5%, from its
closing price of $16.52 on November 10, 2021, to close at $12.47 on
November 11, 2021.
About Lieff Cabraser
Lieff Cabraser Heimann & Bernstein, LLP, with offices in San
Francisco, New York, Nashville, and Munich, is an
internationally-recognized law firm committed to advancing the
rights of investors and promoting corporate responsibility. The
National Law Journal has recognized Lieff Cabraser as one of the
nation's top plaintiffs' law firms for fourteen years. Law360 has
selected Lieff Cabraser as one of the Top 50 law firms nationwide
for litigation, highlighting our firm's "laser focus" and noting
that our firm routinely finds itself "facing off against some of
the largest and strongest defense law firms in the world."
Benchmark Litigation has named Lieff Cabraser one of the "Top 10
Plaintiffs' Firms in America."
For more information about Lieff Cabraser and the firm's
representation of investors, please visit
https://www.lieffcabraser.com/.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
CONTACT:
Sharon M. Lee
Lieff Cabraser Heimann & Bernstein, LLP
Telephone: 1-800-541-7358 [GN]
OSCAR HEALTH: Robbins LLP Reminds of July 11 Deadline
-----------------------------------------------------
The Class: Shareholder rights law firm Robbins LLP informs
investors that a shareholder filed a class action on behalf of all
persons and entities that purchased or otherwise acquired Oscar
Health, Inc. (NYSE: OSCR) securities pursuant to the Company's
March 2021 initial public offering ("IPO"). The complaint alleges
violations of the Securities Act of 1933. Oscar Health is a health
insurance company that claims to be the first company "built around
a full stack technology platform."
What is this Case About: Oscar Health, Inc. (OSCR) Misled Investors
in its Registration Statement Supporting its IPO
According to the complaint, in its IPO, the Company sold its Class
A common stock at $39.00 per share, and received approximately $1.3
billion in net proceeds. The Registration Statement filed in
connection with the IPO was materially false and misleading.
Specifically, it omitted to state that Oscar was experiencing
growing COVID-19 testing and treatment costs as well as growing net
COVID-19 costs. Further, Oscar would be negatively impacted by an
unfavorable prior year Risk Adjustment Data Validation (RADV)
result relating to 2019 and 2020, and was on track to be negatively
impacted by significant Special Enrollment Period (SEP) membership
growth.
On November 10, 2021, Oscar disclosed that its third quarter 2021
Medical Loss Ratio increased 920 basis points year-over-year, to
99.7%. The Company claimed that the MLR increase was "primarily
driven by higher net COVID costs as compared to the net benefit in
3Q20, an unfavorable prior year Risk Adjustment Data Validation
(RADV) result, and the impact of significant SEP membership
growth." The Company also disclosed that its net loss for the
quarter was $212.7 million, an increase of $133.6 million
year-over-year. During a conference call held the same day, Scott
Blackley, the Company's Chief Financial Officer, stated: "We
recognized approximately $20 million of risk adjustment expense
this quarter related to our risk adjustment data validation audit
or RADV results. The RADV exercise is atypical this year due to
COVID. It spans two years, 2019 and 2020. The majority of the RADV
headwinds relate to the 2019 audit results, which were recently
completed."
On this news, Oscar's share price fell $4.05 per share, or 24.5%,
to close at 12.47 per share on November 11, 2021. By the
commencement of this action, Oscar stock has traded as low as $5.76
per share, a more than 85% decline from the $39.00 per share IPO
price.
Next Steps: If you acquired shares of Oscar Health, Inc. (OSCR)
pursuant to the Company's March 2021 IPO, you have until July 11,
2022, to ask the court to appoint you lead plaintiff for the class.
A lead plaintiff is a representative party acting on behalf of
other class members in directing the litigation. You do not have to
participate in the case to be eligible for a recovery.
All representation is on a contingency fee basis. Shareholders pay
no fees or expenses.
Contact us to learn more:
Aaron Dumas
(800) 350-6003
adumas@robbinsllp.com
Shareholder Information Form
About Robbins LLP: A recognized leader in shareholder rights
litigation, the attorneys and staff of Robbins LLP have been
dedicated to helping shareholders recover losses, improve corporate
governance structures, and hold company executives accountable for
their wrongdoing since 2002. To be notified if a class action
against Oscar Health, Inc. settles or to receive free alerts when
corporate executives engage in wrongdoing, sign up for Stock Watch
today.
Attorney Advertising. Past results do not guarantee a similar
outcome.
Contacts
Aaron Dumas
Robbins LLP
5040 Shoreham Place
San Diego, CA 92122
adumas@robbinsllp.com
(800) 350-6003
www.robbinsllp.com [GN]
OTONOMO INC: Mollaei Suit Removed to N.D. California
----------------------------------------------------
The case styled SAMAN MOLLAEI, individually and on behalf of all
others similarly situated v. OTONOMO INC., Case No. CGC22599118,
was removed from the Superior Court of the State of California for
the County of San Francisco to the U.S. District Court for the
Northern District of California on May 13, 2022.
The Clerk of Court for the Northern District of California assigned
Case No. 4:22-cv-02854 to the proceeding.
The case arises from the Plaintiff's personal property claims
against the Defendant.
Otonomo Inc. is a provider of a vehicle data platform and
marketplace based in California. [BN]
The Defendant is represented by:
Melanie Marilyn Blunschi, Esq.
LATHAM & WATKINS LLP
505 Montgomery Street, Suite 2000
San Francisco, CA 94111-6538
Telephone: (415) 395-8129
E-mail: melanie.blunschi@lw.com
PAPARAZZI LLC: Hollins Suit Transferred to S.D. New York
--------------------------------------------------------
The case styled as Tamie Hollins, individually and on behalf of all
others similarly situated v. Paparazzi, LLC, Case No. 5:22-cv-00393
was transferred from the U.S. District Court for the District of
Northern District of New York, to the U.S. District Court for the
Southern District of New York on May 17, 2022.
The District Court Clerk assigned Case No. 7:22-cv-04015-VB to the
proceeding.
The nature of suit is stated as Other Fraud.
Paparazzi Accessories, LLC or Paparazzi --
https://paparazziaccessories.com/ -- is a multi-level direct
selling company based in Utah that specializes in fashion
accessories such as jewelry.[BN]
The Plaintiff is represented by:
Gary E Mason, Esq.
MASON LLP
5101 Wisconsin Avenue NW, Suite 305
Washington, DC 20016
Phone: (202) 429-2290
Fax: (202) 429-2294
Email: gmason@masonllp.com
- and -
Jonathan Shub, Esq.
SHUB LAW FIRM LLC
134 Kings Highway, Second Floor
Haddonfield, NJ 08033
Phone: (856) 772-7200
Email: ecf@shublawyers.com
PAYSAFE LTD: Court Names Kessler Lead Counsel in Securities Suit
----------------------------------------------------------------
Magistrate Judge Katharine H. Parker of the U.S. District Court for
the Southern District of New York appoints Robert J. Viani and Eric
C. Price as the Lead Plaintiff and Kessler Topaz Meltzer & Check,
LLP, as the Lead Counsel in the case, IN RE PAYSAFE LIMITED f/k/a
FOLEY TRASIMENE ACQQUISITION CORP. II SECURITIES LITIGATION, Master
File No. 1:21-CV-10611-ER-KHP (S.D.N.Y.).
I. Introduction
On Feb. 8, 2022, seven motions were filed by movants seeking to (1)
consolidate the related actions; (2) appoint Lead Plaintiff, and
(3) approve Lead Counsel. Of the seven movants seeking to be made
Lead Plaintiff only two remain to be considered -- Robert J. Viani
and Eric C. Price Group ("Viani/Price Group") and Campbell Capital
Management ("CCM"). Specifically, class members Viani and Price
moved the Court to appoint them as the Lead Plaintiff and approve
Kessler Topaz Meltzer & Check, LLP as the Lead Counsel for the
class. Alternatively, CCM moves the Court to appoint it as the Lead
Plaintiff and approve Glancy Prongay & Murray LLP as the Lead
Counsel. The Viani/Price Group also submitted further support for
their Motion. Additionally, all movants request that the related
cases (Wiley, 21-CV-10611; and O'Brien, 22-CV-567) be
consolidated.
On May 5, 2022, the Court granted the request for consolidation
with the amended caption as represented.
II. Background
The captioned actions were commenced as purported securities class
actions on behalf of a class of persons and entities that purchased
or otherwise acquired Paysafe and/or FTAC securities between Dec.
7, 2020, and Nov. 10, 2021, against Paysafe Limited ("Paysafe" or
the "Company") f/k/a Foley Trasimene Acquisition Corp. II ("FTAC"),
certain of Paysafe's executive officers and directors, and certain
of FTAC's former executive officers and directors (collectively,
"Defendants") under the Securities Exchange Act of 1934, 15 U.S.C.
Sections 78j(b) and 78t(a).
Paysafe is incorporated under the laws of Bermuda, with its
principal executive offices located in Bermuda. Its common shares
trade on the New York Stock Exchange ("NYSE") under the symbol
"PSFE." Paysafe provides end-to-end payment solutions through three
primary business segments: Integrated Processing, which processes
payments for merchants; Digital Wallet, which enables consumers to
make digital payments for purposes such as e-commerce, online
gambling, and gaming; and eCash Solutions, which allows consumers
to use cash for digital payments for purchasing prepaid digital
vouchers.
FTAC was a special purpose acquisition company ("SPAC") formed for
the purpose of effecting a merger, capital stock exchange, asset
acquisition, stock purchase, reorganization, or similar business
combination. On Dec. 7, 2020, FTAC announced that it and Paysafe
Group Holdings Limited entered into a definitive agreement and plan
of merger. On closing of the transaction, the newly combined
company was to operate as Paysafe with its shares trading under the
symbol "PSFE." The merger was completed on March 30, 2021.
On Dec. 7, 2020, FTAC issued a press release titled "Foley
Trasimene Acquisition Corp. II and Paysafe, A Leading Global
Payments Provider Focused on Digital Commerce and iGaming, Announce
Merger." The press release highlighted several aspects of Paysafe's
business and touted its growth opportunities in a large addressable
market.
On May 11, 2021, Paysafe issued a press release announcing its
first quarter 2021 financial results. The press release announced,
among other things, an increase in revenue of 5% and an increase in
total payment volume of 8%. On Aug. 16, 2021, Paysafe issued a
press release announcing its second quarter 2021 financial results.
The press release announced, among other things, an increase in
revenue of 13% and an increase in total payment volume of 41%. The
Company again reaffirmed its 2021 full year outlook.
The Actions allege that the Defendants made materially false and/or
misleading statements and failed to disclose material adverse facts
about the Company's business, operations, and prospects.
Specifically, the Actions allege that the Defendants failed to
disclose to investors that: (1) Paysafe was being negatively
impacted by gambling regulations in key European markets; (2)
Paysafe was encountering performance challenges in its Digital
Wallet segment; (3) new eCommerce customer agreements were being
pushed back; and (4) that, as a result of the foregoing, the
Defendants' positive statements about the Company's business,
operations, and prospects were materially misleading and/or lacked
a reasonable basis.
The full truth allegedly emerged on Nov. 11, 2021, when, before the
market opened, Paysafe issued a press release titled "Paysafe
Reports Third Quarter 2021 Results." The press release disclosed
that Paysafe was revising its 2021 guidance due to "gambling
regulations and softness in key European markets and performance
challenges impacting the Digital Wallet segment" and "the modified
scope and timing of new eCommerce customer agreement relative to
the Company's original expectations for these agreements." The
press release disclosed that the Company would be revising its
financial guidance downward for 2021. On this news, the Company's
share price fell more than 40%, on unusually heavy trading volume.
The Wiley Complaint alleges the Nov. 11, 2021 was the corrective
disclosure. The O'Brien complaint pleads two corrective
disclosures: The first on Aug. 16, 2021; and the second on November
11, 2021. Specifically, the O'Brien complaint alleges that
"investors began to learn the truth about Paysafe's prospects on
Aug. 16, 2021, when the Company announced its financial results for
the second quarter of 2021 and attributed its weak guidance to
challenges in the Company's Digital Wallet segment, including 'some
softness in the online gambling space' in European markets" and
that, "on this news, the price of Paysafe common stock declined
$1.58 per share, or more than 15%, from a close of $10.20 per share
on Aug. 13, 2021, to close at $8.62 per share on Aug. 16, 2021." It
asserts the full truth came out on Nov. 11, 2021.
CCM, represented by the Los Angeles-based firm Glancy Prongay &
Murray LLP ("GPM"), is an investment advisory firm located in
Miami, Florida. Clay Campbell is the President and Chief Investment
Officer of CCM. Campbell is a retired Certified Public Accountant.
He has attested that he understands the obligations of lead
plaintiff and will dutifully represent the class. Campbell himself,
as well as approximately 100 of CCM's various clients, invested in
Paysafe and lost money. The aggregate loss amounts to approximately
$2.9 million.
CCM's clients all signed assignment agreements assigning to CCM all
interest they may have arising from violations of the federal
securities laws in connection with their purchase or acquisition of
Paysafe securities and appointing CCM as attorney-in-fact for
purposes of exercising all powers relating to the causes of action
asserted in the matter. CCM, as assignee, agreed to remit any
proceeds received as a result of the assignment to the assignors
(its clients). The individual losses of CCM's clients range from a
few thousand dollars to a maximum of approximately $215,000.
GPM represents investors, consumers and employees and has
prosecuted class action cases and complex litigation in federal and
state courts throughout the country. It has offices in New York and
California. It represents that it has served as lead and co-lead
counsel in securities class actions and has been recognized by the
Institutional Shareholder Services unit of RiskMetrics Group as a
top plaintiffs' law firm in its annual Securities Class Action
Services report since 2003. It has served as co-lead counsel in
cases in this District as well.
Mr. Viani is a resident of New York and owns forty restaurant
franchise locations. He has an associate's degree from Dutchess
Community College and states he has invested in the stock market
since 2005. Price is a resident of California who owns and manages
rental properties and the investments of a family trust. He
received a bachelor's degree in finance from Pacific Union College
and an MBA from Pepperdine University and has been investing in the
stock market for 24 years. Both individuals invested in Paysafe and
lost money. Viani personally suffered a loss of approximately $2.54
million and Price personally suffered a loss of approximately $1.27
million. They both are represented by Kessler Topaz Meltzer &
Check, LLP ("KT"). They attest that prior to seeking appointment as
Lead Plaintiff they participated in a joint conference call to
formalize their commitment to jointly prosecuting this litigation
and their duties if selected as lead plaintiff. They agree to make
decisions jointly, taking into consideration legal advice from KT.
They state they are confident in their ability to reach joint
decisions regarding litigation matters.
KT is a litigation firm with offices in Pennsylvania and California
that specializes in the prosecution of securities class actions. It
has served as lead or co-lead counsel in various securities class
actions, including in this District.
III. Discussion
A. Largest Financial Interest
Judge Parker finds that Viani and Price have the largest financial
interest because they suffered combined losses of approximately
$3,819,459 on a LIFO basis in connection with their Class Period
transactions in Paysafe and FTAC securities. Viani personally
suffered a loss of approximately $2.54 million and Price personally
suffered a loss of approximately $1.27 million. In contrast, CCM
has a loss of approximately $2,902,048 via assignments from 101
individuals and entities.
Moreover, Judge Parker finds that Viani and Price did not have a
relationship before the litigation. But, they submitted an
affidavit describing their decision to participate in the case and
how they will cooperate on decisions concerning the case that
affect the putative class. Both individuals are business people
familiar with investing and sophisticated investors. It is unclear
to the Court exactly how Viani and Price each found their way to
the KT firm, though the Court assumes they both saw notice of the
litigation published by the KT firm and reached out to KT as a
result.
CCM had a pre-existing relationship with all of its clients and
they with each other via CCM. Because of the assignment of claims
to CCM, there is no chance of disagreement between and among the
various client -- CCM as an entity is the proposed Plaintiff with
the injury. As an investment advisory firm, CCM is sophisticated,
as is its principal Clay Campbell. CCM has a smaller financial
stake in the outcome of the litigation than Viani and Price and the
assignments require CCM to relinquish proceeds from the litigation
to its clients.
B. Requirements of Rule 23
The final requirement for selecting a lead plaintiff requires that
the lead plaintiff must also "otherwise satisfy the requirements of
Rule 23 of the Federal Rules of Civil Procedure" in order to
trigger the presumption of adequacy. Rule 23(a) provides that a
part or group of parties may serve as a class representative if:
(1) the class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact common to the
class; (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and (4) the
representative parties will fairly and adequately protect the
interests of the class. At the lead plaintiff selection stage of
litigation, "the moving plaintiff must only make a preliminary
showing that the adequacy and typicality requirements have been
met."
Judge Parker finds that Viani and Price satisfy all three
requirements of 15 U.S.C. Section 78u-4(a)(3)(B)(iii)(I): They made
a motion in response to a notice; they have the largest financial
interest; and made a preliminary showing that they otherwise
satisfy the requirements of Rule 23. Accordingly, Viani and Price
are entitled to a rebuttable presumption that they should be
appointed lead plaintiff in this action. CCM has not come forward
with evidence to suggest that Viani and Price could not work
together in an effective manner or to otherwise rebut the
presumption that they should be appointed lead Plaintiffs. On
balance, Judge Parker finds that Viani and Price should be
appointed lead Plaintiff.
C. Lead Counsel Selection
Plaintiffs Viani and Price have selected and retained KT to serve
as Lead Counsel for the class. As noted, KT specializes in
prosecuting complex class action litigation and is one of the
leading law firms in its field. The firm is actively engaged in
complex litigation and has successfully prosecuted numerous
securities fraud class actions on behalf of injured investors and
has obtained record recoveries in those cases. KT is also currently
serving as lead or co-lead counsel in several high-profile
securities class actions across the country and in this District.
Thus, it is well qualified to represent the class. Thus, Judge
Parker appoints KT as lead counsel.
IV. Conclusion
For the reasons she set forth, Judge Parker grants the motion of
Viani and Price to be appointed the Lead Plaintiffs and to have
their choice of counsel approved as the Lead Counsel. All other
motions at ECF Nos. 16, 21, 23, 30, 36, and 37 are denied. The
pending motions in related case O'Brien, 22-cv-567 at ECF Nos. 6
and 9 are also denied.
The Plaintiffs' Amended Complaint in the consolidated action will
be due 45 days from the date of the Opinion and Order. The
Defendants' Motions to Dismiss will be due 60 days after the filing
of the Amended Complaint. The Plaintiffs will have 60 days to file
an opposition to the motion. The Defendants will have 30 days to
file a reply in support of the Motions to Dismiss.
Discovery is stayed pending resolution of the Motions to Dismiss.
A full-text copy of the Court's May 10, 2022 Opinion & Order is
available at https://tinyurl.com/2dund2mw from Leagle.com.
PEARISON INC: Chalas Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Pearison, Inc. The
case is styled as Ana Chalas, individually, and on behalf of all
others similarly situated v. Pearison, Inc., Case No. 1:22-cv-03971
(S.D.N.Y., May 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Pearison Inc. -- https://www.pearison.com/ -- is a Manufacturing
and Retail company located in Cynthiana, Indiana.[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
PERRIGO COMPANY: Faces Antitrust Suits Over Topical Meds
--------------------------------------------------------
Perrigo Company PLC disclosed in its Form 10-Q Report for the
period ended April 2, 2022, filed with the Securities and Exchange
Commission on May 11, 2022, that three putative classes of direct
purchasers, end payers and indirect resellers, have filed two sets
of class action complaints alleging that Perrigo and other
manufacturers entered into an "overarching conspiracy" that
involved allocating customers, rigging bids and raising,
maintaining, and fixing prices for various products. Each class
brings claims for violations of Sections 1 and 3 of the Sherman
Antitrust Act as well as several state antitrust and consumer
protection statutes.
Filed in June 2018, and later amended in December 2018 (with
respect to direct purchasers) and April 2019 (with respect to end
payers and indirect resellers), the first set of class actions
include allegations against Perrigo and approximately 27 other
manufacturers involving 135 drugs with allegations dating back to
March 2011. The allegations against Perrigo concern only two
formulations (cream and ointment) of one of the products at issue,
Nystatin. The court denied motions to dismiss the first set of
class actions and they are proceeding in discovery.
In December 2019, both the end payer and indirect reseller class
plaintiffs filed a second set of "overarching conspiracy" class
actions against Perrigo, dozens of other manufacturers of generic
prescription pharmaceuticals, and certain individuals dating back
to July 2009 (end payers) or January 2010 (indirect resellers). The
direct purchaser plaintiffs filed their second round overarching
conspiracy complaint in February 2020 with claims dating back to
July 2009. On March 11, 2020, the indirect reseller plaintiffs
filed a motion to amend their second round December 2019 complaint,
and that motion was granted. On September 4, 2020, and December 15,
2020, the end payor plaintiffs amended their second round
complaint.
In October 21, 2020, the direct purchaser plaintiffs amended their
second round complaint. On December 15, 2020, the indirect reseller
plaintiffs filed another complaint adding allegations for
additional drugs that mirror the other class plaintiffs’ claims.
Perrigo Company PLC is a pharmaceutical based in Dublin, Ireland.
PERRIGO COMPANY: Faces Price-Rigging Suit in Ontario Court
----------------------------------------------------------
Perrigo Company PLC disclosed in its Form 10-Q Report for the
period ended April 2, 2022, filed with the Securities and Exchange
Commission on May 11, 2022, that it is facing a class action in
Ontario, Canada filed in June 2020 alleging an overarching
conspiracy to allocate customers and/or fix, raise or stabilize
prices of dozens of products, most of which Perrigo neither makes
nor sells, but the product conspiracies allegedly involving Perrigo
focus on "Clobetasol," "Desonide," "Econazole" and Nystatin.
In December 2020, Plaintiffs amended their complaint to add
additional claims.
Perrigo Company PLC is a pharmaceutical based in Dublin, Ireland.
PERRIGO COMPANY: Faces Price-Rigging Suits in Pennsylvania
----------------------------------------------------------
Perrigo Company PLC disclosed in its Form 10-Q Report for the
period ended April 2, 2022, filed with the Securities and Exchange
Commission on May 11, 2022, that Perrigo is a defendant in several
cases in the generic pricing multidistrict litigation MDL No. 2724
(United States District Court for Eastern District of
Pennsylvania).
This multidistrict litigation, which has many cases that do not
include Perrigo, includes class action and opt-out cases for
federal and state antitrust claims, as well as complaints filed by
certain states alleging violations of state antitrust laws.
On July 14, 2020, the court issued an order to expedite class
actions alleging "single drug" conspiracies involving Clomipramine,
Pravastatin and Clobetasol where Perrigo is a defendant in the
Clobetasol cases but not the others.
Perrigo Company PLC is a pharmaceutical based in Dublin, Ireland.
PERRIGO COMPANY: Faces Wilson Class Suit in New Jersey
------------------------------------------------------
Perrigo Company PLC disclosed in its Form 10-Q Report for the
period ended April 2, 2022, filed with the Securities and Exchange
Commission on May 11, 2022, that it is facing a securities case
filed in July 19, 2016 by a shareholder against the company and its
former CEO, Joseph Papa, in the District of New Jersey captioned
"Wilson v. Papa, et al."
The plaintiff purported to represent a class of persons who sold
put options on the company's shares between April 21, 2015 and May
11, 2016 alleging violations of Securities Exchange Act sections
10(b) and Rule 10b5) and 14(e) against both defendants and 20(a).
In December 8, 2016, the court consolidated said case. In February
2017, the court selected the lead plaintiffs for the consolidated
case and the lead counsel to the putative class. In March 2017, the
court entered a scheduling order.
On June 21, 2017, the court-appointed lead plaintiffs filed an
amended complaint that superseded the original complaints in the
Wilson case. In the amended complaint, the lead plaintiffs seek to
represent three classes of shareholders namely shareholders who
purchased shares during the period from April 21, 2015 through May
3, 2017 on the U.S. exchanges, shareholders who purchased shares
during the same period on the Tel Aviv exchange and shareholders
who owned shares on November 12, 2015 and held such stock through
at least 8:00 a.m. on November 13, 2015 regardless of whether the
shareholders tendered their shares.
The amended complaint names Perrigo and 11 of its current or former
directors and officers. The amended complaint alleges violations of
Securities Exchange Act sections 10(b) (and Rule 10b‑5) and 14(e)
against all defendants and 20(a) control person liability against
the 11 individuals. In general, the allegations concern the actions
taken by the company and the former executives to defend against
the unsolicited takeover bid by Mylan in the period from April 21,
2015 through November 13, 2015 and the allegedly inadequate
disclosure throughout the entire class period related to purported
integration problems related to the acquisition of Omega Pharma
Invest N.V., alleges incorrect reporting of organic growth at the
company and at Omega, alleges price fixing activities with respect
to six generic prescription pharmaceuticals, and alleges improper
accounting for the "Tysabri" royalty stream.
During 2017, the defendants filed motions to dismiss, which the
plaintiffs opposed. On July 27, 2018, the court issued an opinion
and order granting the defendants' motions to dismiss in part and
denying the motions to dismiss in part. The court dismissed without
prejudice defendants Laurie Brlas, Jacqualyn Fouse, Ellen Hoffing,
Gary Cohen, Michael Jandernoa, Gerald Kunkle, Herman Morris, Donal
O'Connor and Marc Coucke. The court also dismissed without
prejudice claims arising from the Tysabri accounting issue
described above and claims alleging incorrect disclosure of organic
growth described above. The defendants who were not dismissed are
Perrigo Company plc, Joe Papa, and Judy Brown. The claims that were
not dismissed relate to the integration issues regarding the Omega
acquisition, the defense against the Mylan tender offer, and the
alleged price fixing activities with respect to six generic
prescription pharmaceuticals. The defendants who remain in the case
(the company, Mr. Papa and Ms. Brown) have filed answers denying
liability, and the discovery stage of litigation began in late
2018. Discovery in the class action ended on January 31, 2021.
In early April 2021, the defendants filed various post-discovery
motions, including summary judgment motions and the briefing of
which was completed in early July 2021. The motions are now before
the court. The court held oral argument on April 7, 2022.
Perrigo Company PLC is a pharmaceutical based in Dublin, Ireland.
PERSONALIZATIONMALL.COM: Settles BIPA Class Action for $4.5MM
-------------------------------------------------------------
Top Class Actions reports that Personalizationmall.com agreed to
pay $4.5 million to resolve claims that violated the Illinois
Biometric Information Privacy Act (BIPA) with unlawful fingerprint
scanners.
The settlement benefits current and former Personalizationmall.com
(PMall) employees who used a fingerprint-scanning timekeeping
device while working for the company in 2017, 2018 and 2019.
PMall offers personalized gifts for a number of occasions including
graduation, anniversaries, birthdays, house warmings, Father's Day,
Mother's Day, weddings, retirement and more, according to the
company's website. Shoppers are able to customize gifts for their
intended recipient to provide a "thoughtful, fun, and memorable"
gift for special occasions.
According to a 2020 class action lawsuit, PMall used fingerprint
scanning devices to clock employees in and out of work. Despite
operating in Illinois, the company allegedly failed to follow the
state's regulations regarding biometric privacy.
In Illinois, BIPA regulates the ways companies can collect, store,
and share biometric information such as fingerprints, facial scans,
eye scans and more. The law requires companies to properly disclose
the collection of biometrics, inform how this information will be
used, and maintain a public schedule of retention and destruction
so consumers know how long their information will be stored. These
regulations help protect consumers from the risk of fraud and
identity theft.
Former PMall employees claim the company failed to comply with any
of these regulations. As a result, they sought damages under BIPA.
The law allows consumers to collect damages of $1,000 for each
negligent violation and $5,000 for each reckless violation.
PMall hasn't admitted any wrongdoing but agreed to resolve these
allegations with a $4.5 million settlement deal.
Under the terms of the settlement, class members can receive a cash
payment.
Payment amounts will vary depending on the number of class members
who participate in the settlement. For example, if 10% of the
20,393 settlement participants submit valid claims, each class
member would receive a payment of $1,428. Similarly, 50%
participation would result in payments of $285 to each class
member. Actual payments may be higher or lower than these examples.
The deadline for exclusion and objection is June 13, 2022.
The final approval hearing for the PMall settlement is scheduled
for July 20, 2022.
In order to receive a payment from the settlement, class members
must submit a valid claim form by June 13, 2022.
Who's Eligible
The settlement benefits current and former Personalizationmall.com
(PMall) employees who used a fingerprint scanning timekeeping
device while working for the company in 2017, 2018 and 2019.
Potential Award
TBD
Proof of Purchase
No proof of purchase applicable
Claim Form
NOTE: If you do not qualify for this settlement do NOT file a
claim.
Remember: you are submitting your claim under penalty of perjury.
You are also harming other eligible Class Members by submitting a
fraudulent claim. If you're unsure if you qualify, please read the
FAQ section of the Settlement Administrator's website to ensure you
meet all standards (Top Class Actions is not a Settlement
Administrator). If you don't qualify for this settlement, check out
our database of other open class action settlements you may be
eligible for.
Claim Form Deadline
06/13/2022
Case Name
Williams et al. v. Personalizationmall.com, LLC., Case No.
1:20-cv-00025, in the U.S. District Court for the Northern District
of Illinois Eastern Division
Final Hearing
07/20/2022
Settlement Website
PMallFingerveinScanSettlement
Claims Administrator
Analytics Consulting LLC
Williams et al. v. Personalizationmall.com, LLC.
P.O. Box 2006
Chanhassen, MN 55317-2006
www.pmallfingerveinscansettlement.com
855-702-3468
Class Counsel
Thomas M Ryan
LAW OFFICE OF THOMAS M RYAN PC
James X Bormes
Catherine P Sons
LAW OFFICE OF JAMES X BORMES PC
Alejandro Caffarelli
Katherine Stryker
CAFFARELLI & ASSOCIATES LTD
Defense Counsel
Justin Kay and Sophie
GOTLIEB OF FAEGRE DRINKER BIDDLE & REATH LLP [GN]
PIRATE PIZZA: Fails to Reimburse Automobile Costs, Southerland Says
-------------------------------------------------------------------
JEREMY SOUTHERLAND, individually and on behalf of all others
similarly situated, Plaintiff v. PIRATE PIZZA, INC. and ALLEN LYLE,
Defendants, Case No. 1:22-cv-04038 (E.D.N.C., May 17, 2022) is a
class action against the Defendants for its failure to reimburse
the Plaintiff and similarly situated delivery drivers automobile
expenses in violation of the Fair Labor Standards Act.
The Plaintiff was employed by the Defendants as a delivery driver
at a Domino's Pizza store located in Greenville, North Carolina
from approximately March 2021 to February 2022.
Pirate Pizza, Inc. is an operator of Domino's Pizza franchise
stores, including in Greenville, North Carolina. [BN]
The Plaintiff is represented by:
Jacob J. Modla, Esq.
THE LAW OFFICES OF JASON E. TAYLOR P.C.
115 Elk Avenue
Rock Hill, SC 29730
Telephone: (803) 328-0898
E-mail: jmodla@jasonetaylor.com
POLARIS INC: Fails to Properly Pay Wages, Isbell Suit Claims
------------------------------------------------------------
LEAH ISBELL, individually and on behalf of all others similarly
situated, Plaintiff v. POLARIS, INC., Defendant, Case No.
0:22-cv-01322-NEB-BRT (D. Minn., May 17, 2022) is a class action
against the Defendant for violation of the Fair Labor Standards Act
and state common law by failing to pay the Plaintiff and similarly
situated employees proper wages, including overtime.
The Plaintiff has worked at the Defendant's Huntsville, Alabama
facility as an hourly assembler since September 2021.
Polaris, Inc. is a producer and supplier of side-by-side vehicles,
with its principal executive office address at 2100 Highway 55,
Medina, Minnesota. [BN]
The Plaintiff is represented by:
Timothy J. Becker, Esq.
Jacob R. Rusch, Esq.
JOHNSON BECKER, PLLC
444 Cedar Street, Suite 1800
St. Paul, MN 55101
Telephone: (612) 436-1800
Facsimile: (612) 436-1801
E-mail: tbecker@Johnsonbecker.com
jrusch@johnsonbecker.com
- and –
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
- and –
Seth R. Lesser, Esq.
Christopher M. Timmel, Esq.
KLAFTER LESSER LLP
Two International Drive, Suite 350
Rye Brook, NY 10573
Telephone: (914) 934-9200
E-mail: seth@klafterlesser.com
christopher.timmel@klafterlesser.com
PROGRESSIVE SELECT: Reduces ACV of Total Loss Vehicles, Sibert Says
-------------------------------------------------------------------
KIARA SIBERT, individually and on behalf of all others similarly
situated, Plaintiff v. PROGRESSIVE SELECT INSURANCE COMPANY,
Defendant, Case No. 1:22-cv-01179-JMC (D. Md., May 17, 2022) is a
class action against the Defendant for breach of contract, breach
of covenant of good faith and fair dealing, and unjust enrichment.
The case arises from the Defendant's alleged failure to fulfill its
obligation by making improper and unreasonable adjustments to
reduce the value of comparable vehicles, which in turn reduces the
valuation of the total loss vehicles and the claim payment to the
insureds/claimants, including the Plaintiff. Specifically, the
Defendant, through Mitchell International, Inc., systemically
applies a so-called "Projected Sold Adjustment" that results in a
significant downward adjustment to the base values of the
comparable vehicles used to calculate the actual cash value (ACV)
of the Plaintiff's and Class members' total loss vehicles. This
reduction is contrary to appraisal standards and methodologies and
is not based in fact, as it is contrary to the used car industry's
market pricing and inventory management practices, says the suit.
Progressive Select Insurance Company is an insurance company, with
its principal place of business in Ohio. [BN]
The Plaintiff is represented by:
Cary Joshi, Esq.
BAILEY & GLASSER LLP
1055 Thomas Jefferson Street NW, Suite 540
Washington, DC 20007
Telephone: (202) 463-2101
Facsimile: (202) 463-2103
E-mail: cjoshi@baileyglasser.com
- and –
James L. Kauffman, Esq.
BAILEY & GLASSER LLP
1055 Thomas Jefferson Street NW, Suite 540
Washington, DC 20007
Telephone: (202) 463-2101
Facsimile: (202) 463-2103
E-mail: jkauffman@baileyglasser.com
- and –
Andrew J. Shamis, Esq.
SHAMIS & GENTILE, P.A.
14 NE 1st Avenue, Suite 705
Miami, FL 33132
Telephone: (305) 479-2299
E-mail: ashamis@shamisgentile.com
- and –
Scott Edelsberg, Esq.
Christopher Gold, Esq.
EDELSBERG LAW, P.A.
20900 NE 30th Ave., Suite 417
Aventura, FL 33180
Telephone: (786) 289-9471
(305) 975-3320
Facsimile: (786) 623-0915
E-mail: scott@edelsberglaw.com
chris@edelsberglaw.com
QUALCOMM INC: British Consumer Group Can Proceed With Class Action
------------------------------------------------------------------
Matthew Perlman, writing for Law360, reports that a British
consumer group won permission on May 17 to represent millions of
phone buyers seeking £480 million ($599 million) from Qualcomm
over its chip licensing practices, as a tribunal accepted the
group's calculation of harm for the purpose of certifying a claim.
[GN]
RDS HOME: Cepeda Sues Over Home Care Workers' Unpaid Overtime
-------------------------------------------------------------
EVELYN CEPEDA, individually and on behalf of all others similarly
situated, Plaintiff v. RDS HOME CARE INC., Defendant, Case No.
2:22-cv-01887 (E.D. Pa., May 13, 2022) is a class action against
the Defendant for its failure to pay overtime wages in violation of
the Fair Labor Standards Act and the Pennsylvania Minimum Wage
Act.
The Plaintiff was employed by the Defendant as a home care worker.
RDS Home Care Inc. is a company that provides home care services to
elderly clients in and around Philadelphia, Pennsylvania. [BN]
The Plaintiff is represented by:
Peter Winebrake, Esq.
WINEBRAKE & SANTILLO, LLC
715 Twining Road, Suite 211
Dresher, PA 19025
Telephone: (215) 884-2491
E-mail: pwinebrake@winebrakelaw.com
RECREONICS INC: Feliz Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Recreonics, Inc. The
case is styled as Roberta Feliz, individually, and on behalf of all
others similarly situated v. Recreonics, Inc., Case No.
1:22-cv-03979 (S.D.N.Y., May 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Recreonics -- https://www.recreonics.com/ -- has been supplying
swimming pool owners and aquatic professionals across the United
States and around the world with high quality swimming pool
equipment and friendly, fast and expert customer service for more
than 50 years.[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
RESTORATION ROBOTICS: Court Affirms Securities Class Suit Dismissal
-------------------------------------------------------------------
Shearman & Sterling LLP, in an article for JDSupra, reports that on
April 28, 2022, the First Appellate District Court of Appeals for
the State of California affirmed the dismissal of putative
securities class action against a hair transplant technology
company (the "Company") alleging violations of the Securities Act
of 1933 (the "1933 Act"). Wong v. Restoration Robotics, Inc.,
A161489 (Cal. Ct. App. Apr. 28, 2022). Plaintiff initiated the
action in California state court, alleging that the offering
documents for the Company's 2017 initial public offering ("IPO")
contained materially false and misleading statements in violation
of the 1933 Act. The trial court dismissed the complaint on the
basis of a federal forum provision ("FFP") in the Company's
certificate of incorporation. The Court affirmed, holding that the
FFP was enforceable and that the trial court would only have
jurisdiction if the Company consented to a different forum, which
it had not.
The Company manufactures a robotic system used in a type of hair
transplant procedure. The Company filed its Form S-1 Registration
Statement with the SEC on September 1, 2017, and it was declared
effective on October 11, 2017. The Company amended the Registration
Statement on September 18, 2017, adding an "Exclusive Forum"
provision which provided that unless the Company consents in
writing, federal district court shall be the exclusive forum for
any cause of action arising under the 1933 Act, and that any
shareholder shall be deemed to have notice.
Plaintiff shareholder filed a putative class action complaint
against the Company in May 2018 in California state court, alleging
that "the registration statement was inaccurate and misleading,
contained untrue statements of material fact, and failed to
disclose material facts, in violation of sections 11, 12(a)(2), and
15 of the 1933 Act." Plaintiff pointed to a 50% drop in the sales
price of the Company's stock since its IPO and alleged that the
registration statement "mischaracterized the company's liquidity
and capital needs, and failed to disclose that substantial
engineering and programming work was required before the
implantation technology would be commercially viable." The trial
court initially denied the Company's motion to dismiss based on the
FFP, relying on a Delaware Chancery Court decision holding that
FFPs were facially invalid under Delaware law, but granted the
Company's renewed motion to dismiss after the Delaware Supreme
Court overturned the Chancery Court's decision and held that FFPs
are not contrary to Delaware or federal law or policy. Plaintiff
appealed, contending that (i) the FFP violated the concurrent state
and federal jurisdiction provision of the 1933 Act, (ii) the
Delaware statutory scheme permitting the FFP violated the Commerce
Clause and Supremacy Clause of the United States Constitution, and
(iii) the FFP was invalid and unenforceable because it was unfair
and unreasonable.
As an initial matter, the Court rejected plaintiff's argument that
the FFP was barred by the 1933 Act, holding that the plain and
unambiguous language of Section 77v(a) -- which grants concurrent
jurisdiction between federal and state courts -- simply "prevent[s]
a defendant from removing a civil case that has been filed in state
court to the United States district court," and that the FFP only
"requires [plaintiff] to file his action in federal court in the
first place, rather than in state court." With respect to Section
77n -- which prohibits waiver of compliance with provisions of the
1933 Act -- the Court relied on the Supreme Court decision
Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S.
477 (1989), for the proposition that "section 77n does not apply to
the concurrent jurisdiction provision of the 1933 Act, and does not
bar forum selection arrangements."
Turning to plaintiff's constitutional argument that Delaware law
permitting FFPs violates the Commerce Clause, the Court held that
there was no state action—a necessary factor in triggering the
Commerce Clause—because the Company "[did] not perform a
traditional, exclusive public function; nor [was] it compelled by
Delaware law to include an FFP in its certificate of incorporation;
nor [was] Delaware acting jointly with" the Company. In any event,
the Court held that plaintiff's Commerce Clause argument failed on
the merits because Delaware has an interest in "promoting stable
relationships among parties in the corporations it charters," which
is advanced by providing "certainty and predictability, uniformity,
and prompt judicial resolution to corporate disputes," such as
through FFPs. Concerning the Supremacy Clause, the Court held that
while Delaware law "authorizes, but does not require," Delaware
corporations to adopt forum selection clauses requiring 1933 Act
claims to be brought in federal court, it does not allow Delaware
corporations to adopt forum selection clauses that exclude Delaware
state court as a forum for "internal corporate claims." The Court
explained that plaintiff's argument relied on the false premise
that although Delaware law allows an FFP, it protects state court
jurisdiction for claims similar to his 1933 Act claim. The Court
noted that plaintiff failed to identify any state law claim that is
similar in "size and type," in part because "no state law
securities class actions with claims similar to 1933 Act claims can
be brought in any court, state or federal."
Lastly, the Court rejected plaintiff's argument that the FFP was
unconscionable, noting that plaintiff did not cite to any cases in
which a court has held that a provision in a corporation's
certificate of incorporation is procedurally unconscionable.
Accordingly, the Court "decline[d] to hold that there is anything
substantively unconscionable in the waiver of the waivable
procedural right to a state forum, particularly where, as here, the
provision does not restrict a plaintiff's procedural right under
the statute to file suit in a local federal court."
Wong v. Restoration Robotics, Inc. [GN]
RESTORATION ROBOTICS: Must Face Securities Class Action Lawsuit
---------------------------------------------------------------
Shearman & Sterling LLP, in an article for Lexology, disclosed that
on April 28, 2022, the First Appellate District Court of Appeals
for the State of California affirmed the dismissal of putative
securities class action against a hair transplant technology
company (the "Company") alleging violations of the Securities Act
of 1933 (the "1933 Act"). Wong v. Restoration Robotics, Inc.,
A161489 (Cal. Ct. App. Apr. 28, 2022). Plaintiff initiated the
action in California state court, alleging that the offering
documents for the Company's 2017 initial public offering ("IPO")
contained materially false and misleading statements in violation
of the 1933 Act. The trial court dismissed the complaint on the
basis of a federal forum provision ("FFP") in the Company's
certificate of incorporation. The Court affirmed, holding that the
FFP was enforceable and that the trial court would only have
jurisdiction if the Company consented to a different forum, which
it had not.
The Company manufactures a robotic system used in a type of hair
transplant procedure. The Company filed its Form S-1 Registration
Statement with the SEC on September 1, 2017, and it was declared
effective on October 11, 2017. The Company amended the Registration
Statement on September 18, 2017, adding an "Exclusive Forum"
provision which provided that unless the Company consents in
writing, federal district court shall be the exclusive forum for
any cause of action arising under the 1933 Act, and that any
shareholder shall be deemed to have notice.
Plaintiff shareholder filed a putative class action complaint
against the Company in May 2018 in California state court, alleging
that "the registration statement was inaccurate and misleading,
contained untrue statements of material fact, and failed to
disclose material facts, in violation of sections 11, 12(a)(2), and
15 of the 1933 Act." Plaintiff pointed to a 50% drop in the sales
price of the Company's stock since its IPO and alleged that the
registration statement "mischaracterized the company's liquidity
and capital needs, and failed to disclose that substantial
engineering and programming work was required before the
implantation technology would be commercially viable." The trial
court initially denied the Company's motion to dismiss based on the
FFP, relying on a Delaware Chancery Court decision holding that
FFPs were facially invalid under Delaware law, but granted the
Company's renewed motion to dismiss after the Delaware Supreme
Court overturned the Chancery Court's decision and held that FFPs
are not contrary to Delaware or federal law or policy. Plaintiff
appealed, contending that (i) the FFP violated the concurrent state
and federal jurisdiction provision of the 1933 Act, (ii) the
Delaware statutory scheme permitting the FFP violated the Commerce
Clause and Supremacy Clause of the United States Constitution, and
(iii) the FFP was invalid and unenforceable because it was unfair
and unreasonable.
As an initial matter, the Court rejected plaintiff's argument that
the FFP was barred by the 1933 Act, holding that the plain and
unambiguous language of Section 77v(a) -- which grants concurrent
jurisdiction between federal and state courts -- simply "prevent[s]
a defendant from removing a civil case that has been filed in state
court to the United States district court," and that the FFP only
"requires [plaintiff] to file his action in federal court in the
first place, rather than in state court." With respect to Section
77n -- which prohibits waiver of compliance with provisions of the
1933 Act -- the Court relied on the Supreme Court decision
Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S.
477 (1989), for the proposition that "section 77n does not apply to
the concurrent jurisdiction provision of the 1933 Act, and does not
bar forum selection arrangements."
Turning to plaintiff's constitutional argument that Delaware law
permitting FFPs violates the Commerce Clause, the Court held that
there was no state action -- a necessary factor in triggering the
Commerce Clause -- because the Company "[did] not perform a
traditional, exclusive public function; nor [was] it compelled by
Delaware law to include an FFP in its certificate of incorporation;
nor [was] Delaware acting jointly with" the Company. In any event,
the Court held that plaintiff's Commerce Clause argument failed on
the merits because Delaware has an interest in "promoting stable
relationships among parties in the corporations it charters," which
is advanced by providing "certainty and predictability, uniformity,
and prompt judicial resolution to corporate disputes," such as
through FFPs. Concerning the Supremacy Clause, the Court held that
while Delaware law "authorizes, but does not require," Delaware
corporations to adopt forum selection clauses requiring 1933 Act
claims to be brought in federal court, it does not allow Delaware
corporations to adopt forum selection clauses that exclude Delaware
state court as a forum for "internal corporate claims." The Court
explained that plaintiff's argument relied on the false premise
that although Delaware law allows an FFP, it protects state court
jurisdiction for claims similar to his 1933 Act claim. The Court
noted that plaintiff failed to identify any state law claim that is
similar in "size and type," in part because "no state law
securities class actions with claims similar to 1933 Act claims can
be brought in any court, state or federal."
Lastly, the Court rejected plaintiff's argument that the FFP was
unconscionable, noting that plaintiff did not cite to any cases in
which a court has held that a provision in a corporation's
certificate of incorporation is procedurally unconscionable.
Accordingly, the Court "decline[d] to hold that there is anything
substantively unconscionable in the waiver of the waivable
procedural right to a state forum, particularly where, as here, the
provision does not restrict a plaintiff's procedural right under
the statute to file suit in a local federal court." [GN]
RON WILLIAMS FITNESS: Chalas Files ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Ron Williams Fitness
LLC. The case is styled as Ana Chalas, individually, and on behalf
of all others similarly situated v. Ron Williams Fitness LLC, Case
No. 1:22-cv-03973 (S.D.N.Y., May 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Ron Williams -- https://ironchestmaster.com/ -- is the creator of
the revolutionary workout machine The Iron Chest Master, designed
to keep joints protected while maximizing growth of chest,
shoulders, triceps, upper back and abs.[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
RUNNING SUPPLY: Chalas Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Running Supply, Inc.
The case is styled as Ana Chalas, individually, and on behalf of
all others similarly situated v. Running Supply, Inc., Case No.
1:22-cv-03966 (S.D.N.Y., May 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Running Supply, Inc. -- http://www.runnings.com/-- was founded in
1988. The company's line of business includes the retail sale of
specialized lines of merchandise.[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
SAFEMOON LLC: Misleads Investors to Buy Tokens, Rackauckas Claims
-----------------------------------------------------------------
CHRISTOPHER RACKAUCKAS, individually and on behalf of all others
similarly situated, Plaintiff v. SAFEMOON LLC, SAFEMOON US, LLC,
SAFEMOON CONNECT, LLC, TANO LLC, SAFEMOON LTD, SAFEMOON PROTOCOL
LTD, SAFEMOON MEDIA GROUP LTD, DAVID PORTNOY, BRADEN JOHN KARONY,
JACK HAINES-DAVIES, RYAN ARRIAGA, SHAUN WITRIOL, HENRY "HANK"
WYATT, THOMAS SMITH, KYLE NAGY, JAKE PAUL, NICK CARTER, DeANDRE
CORTEZ WAY, BEN PHILLIPS, MILES PARKS McCOLLUM, and DANIEL M. KEEM,
Defendants, Case No. 2:22-cv-00332-DBP (D. Utah, May 17, 2022) is a
class action against the Defendants for violations of Sections 5,
12(a)(1), and 15 of the Securities Act of 1933 and Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934.
According to the complaint, the Defendants allegedly failed to
register SAFEMOON Tokens as a security under federal law and
disseminated and approved materially misleading statements with the
Securities and Exchange Commission (SEC) in order to trade the
tokens at artificially inflated prices in the March 2021 offering.
As a direct result of the Defendants' misconduct, the Plaintiff and
other Class members who lack the technical and financial
sophistication necessary to have evaluated the risks associated
with their investments in the SAFEMOON Token have suffered
significant damages.
SafeMoon LLC is a privately held company with its headquarters
located at 364 N. 500 E., Provo, Utah.
SafeMoon US, LLC is a privately held company with its headquarters
located at 1022 W. 2200 N. Pleasant Grove, Utah.
SafeMoon Connect, LLC is a privately held company with its
headquarters located at 1022 W. 2200 N. Pleasant Grove, Utah.
Tano LLC is a privately held company with its headquarters located
at 1022 W 2200 N. Pleasant Grove, Utah.
SafeMoon LTD is a privately held company, with its headquarters
located at 20-22, Wenlock Road, London, England.
SafeMoon Protocol LTD is a privately held company, with its
headquarters located at 20-22, Wenlock Road, London, England.
SafeMoon Media Group LTD is a privately held company, with its
headquarters located at The Terrace 5th Floor, 76 Wardour Street,
London, England. [BN]
The Plaintiff is represented by:
Brent O. Hatch, Esq.
Tyler V. Snow, Esq.
HATCH LAW GROUP
22 East 100 South, Suite 400
Salt Lake City, UT 84111
Telephone: (801) 869-1919
E-mail: hatch@hatchpc.com
snow@hatchpc.com
- and –
John T. Jasnoch, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
600 W. Broadway, Suite 3300
San Diego, CA 92101
Telephone: (619) 233-4565
E-mail: jjasnoch@scott-scott.com
- and –
Sean T. Masson, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
230 Park Avenue, 17th Floor
New York, NY 10069
Telephone: (212) 233-4111
E-mail: smasson@scott-scott.com com
- and –
Kyle W. Roche, Esq.
Velvel (Devin) Freedman, Esq.
Edward Normand, Esq.
Stephen Lagos, Esq.
ROCHE FREEDMAN LLP
99 Park Ave., 19th Floor
New York, NY 10017
Telephone: (646) 350-0527
E-mail: kyle@rochefreedman.com
vel@rochefreedman.com
tnormand@rochefreedman.com
slagos@rochefreedman.com
SESAME INC: Chalas Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Sesame, Inc. The case
is styled as Ana Chalas, individually, and on behalf of all others
similarly situated v. Sesame, Inc., Case No. 1:22-cv-03960
(S.D.N.Y., May 16, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Sesame -- http://sesamecare.com/-- is a healthcare superstore,
with over 10000 medical practices offering affordable prices for
care in-person or 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
SHAKE SHACK: Tyson Files Suit in New York Over Unpaid Wages
-----------------------------------------------------------
JUSTIN TYSON, on behalf of himself and all others similarly
situated, Plaintiff v. SHAKE SHACK ENTERPRISES, LLC, Defendant,
Case No. 514220/2022 (N.Y. Sup. Ct., May 16, 2022) is a class
action complaint brought against the Defendant for its alleged
failure to comply with the New York City Fair Workweek Law.
The Plaintiff was employed by the Defendant as an hourly paid
worker at the Shake Shack located at 170 Flatbush, Brooklyn, NY
11217, from approximately March 2018 through March 2020.
The Plaintiff asserts claims that the Defendant:
- has failed to provide him and other similarly situated
employees with a written good faith estimate no later than when
they receive their first work schedule;
- has failed to provide them with written notice of their
schedules at least 14 days before the first day of each schedule;
- has failed to provide them with premium pay for changes it
makes to their work schedules any time after the 14-day statutory
schedule provision date;
- has failed to obtain written consent from them and to
provide premium pay for clopenings; and
- has failed to offer newly available shifts to existing
employees.
The Plaintiff seeks an award of unpaid wages and damages, including
liquidated damages, unpaid schedule change premiums, compensatory
damages, penalties, reasonable attorneys’ fees and litigation
costs, pre- and post-judgment interest, and other relief as the
Court deems necessary, just, and proper.
Shake Shack Enterprises, LLC is a fast food establishment. [BN]
The Plaintiff is represented by:
Sally J. Abrahamson, Esq.
WERMAN SALAS P.C.
335 18th Pl NE
Washington, D.C. 20002
Tel: (202) 830-2016
Fax: (312) 419-1025
E-mail: sabrahamson@flsalaw.com
SHANGHAI CITY: Bid to Certify Class in Huang Labor Suit Denied
--------------------------------------------------------------
In the case, HUER HUANG, et al., Plaintiffs v. SHANGHAI CITY CORP.,
et al., Defendants, Case No. 19-cv-7702 (LJL) (S.D.N.Y.), Judge
Lewis J. Liman of the U.S. District Court for the Southern District
of New York denied the Named Plaintiffs' motion for class
certification.
I. Introduction
Named Plaintiffs Lianqin Lu, Gloria Perez Mendez, Clara Flores,
Reyes Perez Guerrero, Aragon Cardoso Cruz, Raymundo Maximino, and
Hai Hua Zhai move, pursuant to Federal Rule of Civil Procedure
23(b)(3), to certify a class comprised of "all delivery persons,
chefs, cooks, food preparers, and cleaning staff who were employed
or are currently employed by the Defendants during the six years
immediately preceding the initiation of the action, or Aug. 16,
2013, up to the date of the decision of the motion," to pursue
claims under the New York Labor Law. The Named Plaintiffs also move
for their appointment as the Class Representatives and of Troy Law,
PLLC and its attorneys John Troy, Aaron B. Schweitzer, and Tiffany
Troy as the Class Counsel. The Named Plaintiffs also ask for an
order permitting them to circulate a notice of class action by
direct mail and by publication to the class members.
II. Background
The first complaint in the action was filed on Aug. 16, 2019
against four Corporate Defendants allegedly doing business as
"Joe's Shanghai" and multiple Individual Defendants, alleging
violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C.
Sections 201 et seq., and the New York Labor Law ("NYLL"), Sections
190 et seq. The Corporate Defendants originally named in that
complaint operated restaurants in Midtown, Manhattan; Chinatown,
Manhattan; and Flushing, Queens. I
The First Amended Complaint was filed on Oct. 8, 2019, and on March
6, 2020, the Defendants moved for judgment on the pleadings with
respect to the First Amended Complaint's claims against the
Defendants associated with the Chinatown restaurant and to dismiss
the claims of certain Plaintiffs for failure to state a claim and
lack of subject matter jurisdiction and to dismiss the class action
claims. On May 11, 2020, the Court issued an Opinion and Order
granting the motion for judgment on the pleadings of the Chinatown
Defendants and denying the motions to dismiss the NYLL claims for
lack of subject matter jurisdiction and to strike the class
claims.
The Second Amended Complaint or the Complaint was filed on May 21,
2020. The Complaint brought claims against four Corporate
Defendants -- Shanghai City Corp, Shanghai Duplicate Corp, East
Brother Corp, and Shanghai Original Inc. -- which owned and
operated a Joe's Shanghai restaurant in New York City, as well as
associated individuals (collectively, "Defendants"). Shanghai City
Corp. owned and operated a Joe's Shanghai restaurant, located on
West 56th Street in Manhattan, New York ("Midtown Restaurant").
East Brother Corp. and Shanghai Original owned and operated the
Joe's Shanghai restaurant in Flushing, Queens, New York ("Flushing
Restaurant"). Shanghai Duplicate Corp. owned and operated a Joe's
Shanghai restaurant in Chinatown, but the Defendants were granted a
motion for judgment on the pleadings for the claims related to that
restaurant and associated individuals. Although the restaurants
share a common origin and name, they are separately owned and
operated.
The Plaintiffs are former employees of one of two restaurants in
New York City: the Midtown Restaurant and the Flushing Restaurant.
The Plaintiffs in the action have changed over time. Originally,
eight Plaintiffs brought the action: Huer Huang, Lianquin Lu,
Gloria Perez Mendez, Clara Flores, Reyes Perez Guerrero, Hui Zhen
Huang, Juan Li, and Hai Hua Zhai, ostensibly on behalf of
themselves and other employees similarly situated. Each of those
Plaintiffs worked at the Midtown Restaurant. The First Amended
Complaint added Aragon Cardoso Cruz and Raymundo Maximino as
Plaintiffs. Those two Plaintiffs worked at the Flushing Restaurant.
Counsel is the Troy Law Firm.
The Second Amended Complaint contained the same 10 Plaintiffs named
in the First Amended Complaint. In October 2020, the Court
dismissed Plaintiffs Huer Huang and Hui Zhen Huang from the action
for their repeated failure to attend their scheduled depositions,
after the Court had previously imposed sanctions on them and the
Troy Law Firm for an earlier failure to appear for depositions. It
also awarded costs as sanctions for Plaintiff Juan Li's failure to
appear for depositions and then dismissed her claims with prejudice
after she failed to comply with Court's orders requiring her to
appear for depositions. There are thus seven remaining named
plaintiffs in the action: Aragon Cardoso Cruz, Raymundo Maximino,
Hai Hua Zhai, Lianqin Lu, Gloria Perez Mendez, Clara Flores, and
Reyes Perez Guerrero.
As currently pleaded, the Complaint alleges failure to pay minimum
wage and failure to pay overtime at time and a half of the regular
rate in violation of the FLSA, on behalf of the employees of the
Midtown Restaurant and a proposed FLSA collective. It also alleges
violations of certain provisions of the NYLL "on behalf of
Plaintiff and Rule 23 Class": (1) failure to pay minimum wage for
the hours worked and failure to pay in full "for some or all of the
hours worked"; (2) failure to pay overtime; (3) failure to pay
spread-of-hours pay; (4) failure to provide meal breaks, in
violation of NYLL Section 162; (5) failure to keep weekly payroll
records, in violation of New York Codes, Rules and Regulations
("NYCRR") Section 146-2.1,; (6) failure to provide time-of-hire
wage notices, in violation of NYLL Section 195-1(a); and (7)
failure to provide wage statements and paystub information, in
violation of NYLL Section 195-1(d). The Complaint also contains a
claim for breach of an implied contract for reimbursement of all
costs and expenses of delivery vehicles brought on behalf of
plaintiff Zhai and "the Class."
On Oct. 1, 2020, the Court granted in part and denied in part the
Plaintiffs' motion to have the case conditionally certified as a
collective action under FLSA Section 216(b), denying the request to
certify a FLSA collective as to the employees of the Midtown
Restaurant but granting the motion as to the employees of the
Flushing Restaurant. Huer Huang, 2020 WL 5849099. On Oct. 19, 2020,
the Court issued an Opinion and Order that clarified that the
conditionally certified class "includes 'the named Plaintiffs and
all nonexempt current and former employees of the Defendants who
performed work as non-exempt, non-managerial kitchen workers from
Aug. 16, 2016 to present' at the Flushing Restaurant."
Thereafter, consents to join the class were filed on behalf of two
employees of the Flushing Restaurant: Alberto Saldivia -- who the
Defendants argue was not a kitchen worker -- and Bingbo Xu. Thus,
as currently composed, the case contains the seven Named Plaintiffs
and these two opt-in Plaintiffs (together, "Plaintiffs"). Five of
the Named Plaintiffs were employees of the Midtown Restaurant. Four
of them (Lu, Mendez, Flores, and Guerrero) were kitchen workers.
The fifth, Zhai, was a delivery man. Two of the Named Plaintiffs --
Maximino and Cruz -- were employees of the Flushing Restaurant, as
were the two opt-ins, Saldivia and Xu.
In October 2016, the Troy Law Firm brought a putative class action
lawsuit in the U.S. District Court for the Eastern District of New
York against principally these same defendants asserting similar
claims for violations of the FLSA and the NYLL on behalf of a
virtually identical class -- Jin et al. v. Shanhai Original, Inc.,
et al., 16-cv-5633 (E.D.N.Y.). The Troy Law Firm moved multiple
times to certify a collective action at the three locations of
Joe's Shanghai (Chinatown, Flushing, and Midtown); the Magistrate
Judge initially granted conditional certification as to the
Flushing and Midtown locations but repeatedly denied the
conditional certification of the Chinatown location and denied the
plaintiffs' request to amend their complaint to include employees
of the Chinatown location as named plaintiffs.
Three employees of the Chinatown location, who had filed notices of
consent to join the Jin action, thereafter filed a class action in
state court alleging labor law violations. A few months later, they
voluntarily dismissed the state-court action with prejudice and
filed a virtually identical action, again in the Eastern District
of New York, bringing the same NYLL and New York General Business
Law counts against the same defendants but adding two causes of
action under the FLSA and one under 26 U.S.C. Section 7434. The
Chinatown employees dismissed their action in the Eastern District
of New York a few days after filing it and then filed a virtually
identical complaint in the Southern District of New York against
the same defendants. The Southern District action was thereafter
dismissed pursuant to the "two-dismissal rule," which "exists
primarily to prevent delays and harassment caused by plaintiffs
securing numerous dismissals without prejudice."
Of particular relevance in the present case, back in the Eastern
District, in December 2017, after the close of discovery in the Jin
case, the Troy Law Firm moved to certify a class of employees of
the Midtown Restaurant and the Flushing Restaurant. Judge Ross
granted that motion in part and denied it in part; she denied the
motion to certify a class comprised of employees of the Flushing
Restaurant and the Midtown Restaurant. At the same time, Judge Ross
certified a class of employees of the Flushing Restaurant,
including that the proposed Rule 23 class, which "included all
current and former non-managerial employees from Oct. 7, 2010 until
the present" met all of the requirements of Rules 23(a) and
23(b)(3). She also appointed the Troy Law Firm as the class
counsel
Over a year later, based on the conduct of the Troy Law Firm in the
interim, Judge Ross decertified the class, finding that the Troy
Law Firm was not adequate to serve as class counsel and could not
provide adequate representation, citing Jin v. Shanghai Original,
Inc., 2019 WL 11816612 (E.D.N.Y. July 10, 2019) ("Jin II"). She
directed that the Plaintiffs' counsel provide a notice to members
of the class advising them of their rights to pursue their
individual claims and that the statute of limitations was no longer
tolled.
The first complaint in the present action was filed one month
later, originally naming as Plaintiffs only employees of the
Midtown Restaurant.
III. Discussion
The Plaintiffs move to certify a class under Federal Rules of Civil
Procedure 23(a) and 23(b)(3) comprised of "all delivery persons,
chefs, cooks, food preparers, and cleaning staff who were employed
or are currently employed by Defendants during the six years
immediately preceding the initiation of the action, or Aug. 16,
2013, up to the date of the decision of the motion" to pursue
claims under the New York Labor Law.
The Defendants oppose the motion on timeliness grounds as well as
on the grounds that the Plaintiffs have not satisfied the
requirements of Rules 23(a) and 23(b)(3). They also briefly argue
that the Tory Law Firm "should not be permitted to pursue a class
action on behalf of Plaintiffs Cruz and Raymundo Maximino" given
Judge Rosss earlier conclusion that the firm did not provide
adequate representation as required by Rule 23(g)(4).
Plaintiffs seeking certification of a Rule 23(b)(3) damages class
action must first establish numerosity, commonality, typicality,
and adequacy of representation, and then predominance of common
questions of law or fact and the superiority of a class action over
other procedures. Two more requirements must be satisfied before a
class is certified under Rule 23(b)(3). First, common issues must
predominate over individual issues. Second, a court must find that
"a class action is superior to other available methods for fairly
and efficiently adjudicating the controversy." Finally, "a court
that certifies a class must appoint class counsel" at the same time
it certifies the class, and the court is thus required to consider
the adequacy of class counsel in its class certification decision.
Judge Liman first outlines the requirements for class certification
under Rules 23(a) and 23(b)(3). He then addresses the Defendants'
arguments with respect to timeliness and Rule 23.
A. Timeliness Challenge
The Defendants first argue that the motion for class certification
should be denied because it was not timely made.
Judge Liman opines that the Defendants have a reasonable argument
that they would be entitled to additional discovery if a class were
to be certified and that the certification of a class would delay
the case. By waiting until well after the close of discovery to ask
to make this motion, the Plaintiffs have prevented Defendants from
taking such additional discovery and thus may have prejudiced the
Defendants; the Plaintiffs have also interfered with the Court's
schedule, and the Court observes that the conduct of counsel smacks
of gamesmanship.
But the Court has discretion whether to deny the motion as
untimely, and in the case, the better exercise of that discretion
is not to deprive absent putative class members of the opportunity
to obtain relief on grounds of timeliness alone. If that were the
only issue, the Court would be prepared to reopen discovery to
permit the Defendants to depose the Named Plaintiffs on, among
other things, their qualifications to serve as class
representatives. The slight delay that would be necessary to permit
Defendants to brief any additional legal issues would not be so
great as to prejudice the Defendants or to significantly interfere
with the Court's calendar.
B. Merits Challenge
The Defendants also oppose the motion for class certification on
the merits. They argue that the Plaintiffs have not sustained their
burden on any of the requirements necessary to certify a
class—numerosity, commonality, adequacy, typicality,
predominance, or superiority. They also argue that the class
definition is overly broad.
1. Certification of a Class Comprised of Flushing Restaurant and
Midtown Restaurant Employees
The Plaintiffs frame their motion as one for certification of a
class of all delivery persons, chefs, cooks, food preparers, and
cleaning staff who were employed or are currently employed by
Defendants, regardless whether they were employed at the Flushing
Restaurant or at the Midtown Restaurant.
Judge Liman denies that motion substantially for the reasons stated
by Judge Ross in Jin I, as well as by the Court in its decision on
the motion for conditional certification of a FLSA collective
action. As explained, in Jin I, Judge Ross concluded: "While the
Midtown and Flushing plaintiffs may all have wage and hour claims
-- at least under the NYLL, if not the FLSA -- they do not have the
same wage and hour claims. She concluded, the named plaintiffs
cannot meet the typicality requirement. The named plaintiffs'
claims do not 'arise from the same practice or course of conduct,'
as the claims of the Midtown employees. The Midtown employees'
claims instead arise from a separate employment policy maintained
by a separately owned and managed restaurant."
The Plaintiffs do not dispute any of those holdings or offer any
new evidence that would cause the Court to come to a different
conclusion.
It follows that Flushing Restaurant employees cannot be members of
the same class as Midtown Restaurant employees, and the claim of a
Flushing Restaurant employee that he was a victim of unlawful
employment practices by the management of that restaurant is not
"common" to that of a Midtown Restaurant employee that she was a
victim of the policies of that restaurant. The point is highlighted
by the Plaintiffs' submissions in support of class certification.
The Midtown Restaurant employees assert fundamentally different
claims than the Flushing Restaurant employees. Although both sets
of claims might arise under the same New York law, the
"determination of the truth or falsity of the claim of a Midtown
Restaurant employee would not] resolve an issue that is central to
the validity of the claims of a Flushing Restaurant employee in one
stroke." It would be legally irrelevant to that claim.
2. Certification of a Class of Midtown Restaurant Employees
The Court has discretion to form a subclass when the proposed class
fails the requirements of Rule 23.
Judge Liman opines that the exercise of that discretion would not
help the Plaintiffs. He finds that the Plaintiffs' submission fails
to satisfy the numerosity requirement with respect to the Midtown
Restaurant employees. They have submitted no evidence that there
was a common policy or practice between the delivery people on the
one hand and the kitchen employees on the other hand. Because of
such dissimilarities, in order for either set to proceed
collectively under Rule 23, they would have to proceed as separate
subclasses: Midtown Restaurant kitchen workers and Midtown
Restaurant deliverymen.
Judge Liman would reach the same conclusion that a class cannot be
certified even if it there were common and predominant questions
such that the class could include both kitchen workers and delivery
people. In that instance, the class would include slightly more
class members, but it would still not establish numerosity. A class
of twenty or fewer -- 10 of whom are either already class members
or have filed declarations and could easily join -- does not
establish numerosity. Finally, the Plaintiffs have not shown that
there is an adequate class representative who could serve the
interests of the absent class members. "
3. Certification of a Class of Flushing Restaurant Employees
Judge Liman concludes that the Plaintiffs have met the numerosity
requirement with respect to a Flushing Restaurant subclass.
However, the Plaintiffs have not established that the class would
be adequately represented either by counsel or by a class
representative. The only evidence that the Plaintiffs submitted in
support of the adequacy of class counsel was the affirmation of the
principal of Troy Law, PLLC, John Troy, stating that he has been
litigating wage and hour cases since 2009. But that evidence is
undermined by the experience the affirmation omits. Courts in this
District have recognized that the Troy Law Firm "has consistently
demonstrated its inadequacy as class counsel in several previous
cases, in which it has been sanctioned or reprimanded for its
inability to represent class plaintiffs zealously and competently
in other FLSA and NYLL cases."
Finally, and as an independent basis of his decision, Judge Liman
holds that there also is no adequate class representative to
monitor counsel and to protect the interests of the proposed class.
There also are substantial questions with respect to commonality,
typicality, and predominance. Judge Liman cannot determine by a
preponderance of the evidence that there was a common policy in
violation of the New York Labor Laws that affected each of the
kitchen workers.
In the end, however, the Court need not base its decision on
commonality, typicality and predominance. The Plaintiffs have
failed to satisfy the adequacy prong with respect to the Flushing
Restaurant employees and have failed to demonstrate numerosity or
adequacy with respect to the Midtown Restaurant employees.
IV. Conclusion
The motion for class certification is denied.
The Clerk of Court is respectfully directed to close Dkt. No. 173.
A full-text copy of the Court's May 10, 2022 Opinion & Order is
available at https://tinyurl.com/ympxdjbz from Leagle.com
SOCIETAL CDMO: To Settle Securities Row in E.D. Pa.
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Societal CDMO, Inc. disclosed in its Form 10-Q Report for the
fiscal year ended March 31, 2022, filed with the Securities and
Exchange Commission on May 11, 2022, that in March 24, 2022,
plaintiff in a securities class action lawsuit filed in the U.S.
District Court for the Eastern District of Pennsylvania (Case No.
2:18-cv-02279-MMB) informed the court that the parties had reached
an agreement-in-principle to settle and requested that the court
stay all deadlines. The parties are currently negotiating the terms
of a Stipulation and Agreement of Settlement.
Said suit was filed in May 31, 2018 against the company and certain
of its officers and directors alleging violations of Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934, as amended, and
Rule 10b-5, based on statements made by the company concerning the
new drug application (NDA) for "IV Meloxicam." The complaint seeks
unspecified damages, interest, attorneys' fees and other costs.
In December 10, 2018, the lead plaintiff filed an amended complaint
that asserted the same claims and sought the same relief but
included new allegations and named additional officers as
defendants. In February 8, 2019, the company filed a motion to
dismiss the amended complaint in its entirety, which the lead
plaintiff opposed on April 9, 2019. In May 9, 2019, the company
filed its response and briefing was completed on the motion to
dismiss. In response to questions from the court, the parties
submitted supplemental briefs regarding the motion to dismiss the
amended complaint during the fall of 2019. In February 18, 2020,
the motion to dismiss was granted by the court without prejudice.
In April 25, 2020, the plaintiff filed a second amended complaint.
The company filed a motion to dismiss the second amended complaint
on June 18, 2020. The plaintiff filed an opposition to the
company's motion to dismiss on August 17, 2020. In September 16,
2020, the company filed a reply in support of its motion to
dismiss.
In March 1, 2021, the court denied the company's second motion to
dismiss. In June 21, 2021, the defendants filed an answer and
affirmative defenses to the second amended complaint. Since then,
the parties have been engaged in discovery, which must conclude by
April 29, 2022. On September 30, 2021, the plaintiff filed a motion
for class certification and appointment of class representative.
The company filed an opposition to the plaintiff's motion in
November 30, 2021.
On January 6, 2022, the plaintiff filed a reply in support of the
motion for class certification. On March 24, 2022, the plaintiff
informed the court that the parties had reached an
agreement-in-principle to settle said litigation and requested that
the court stay all deadlines. The parties are currently negotiating
the terms of a Stipulation and Agreement of Settlement.
Societal CDMO, Inc. is a bi-coastal contract development and
manufacturing organization with capabilities spanning
pre-investigational new drug development to commercial
manufacturing and packaging for a wide range of therapeutic dosage
forms with a primary focus in the area of small molecules. It
provides therapeutic development, end-to-end regulatory support,
clinical and commercial manufacturing, aseptic fill/finish,
lyophilization, packaging and logistics services to the global
pharmaceutical market.
SOUTH AFRICA: Military Veterans to Proceed With Class Action
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Sizwe sama Yende, writing for City Press, reports that struggle
veterans have instructed their lawyers to proceed with a class
action to compel government to compensate them for the sacrifices
they made to liberate the country from the clutches of apartheid 28
years ago.
According to their lawyer former ANC treasurer Mathews Phosa, the 2
500 veterans he represents are demanding that government compensate
them with reparations, pensions, special pensions, housing,
educational and other benefits for putting their lives on the line
in the fight for democracy.
"It cannot be that people who physically fought for the democracy
we enjoy today are destitute without housing, employment, and mere
basics when it is known that true freedom is economic," Phosa
said.
The group includes members of the Umkhonto weSizwe Military
Veterans' Association, the Azanian People's Liberation Army
Military Veterans Association and the Azanian National Liberation
Army Military Veterans Association.
Phosa's clients are demanding:
-- Reparations amounting to R4.2 million per veteran;
-- Compelling government to pay them pensions of R15 000 a
month;
-- Government should honour and comply with agreements made in
the consensus document two years ago; and
A review of the SA National Defence Force integration prejudices,
the SA Police Service integration prejudices, and presidential
declaration on the plight of veterans.
On November 10 2020 the military veterans made their voice heard
when they marched to the Union Buildings in Pretoria to submit a
memorandum of demands to President Cyril Ramaphosa.
Ramaphosa subsequently established the presidential task team
chaired by Deputy President David Mabuza. As an outcome of the task
team's engagement with the veterans, a consensus document was
signed in December 2020 stating the military veterans' demands.
However, a meeting scheduled with Ramaphosa on October 14 2021 in
Centurion to discuss agreements was abandoned after tensions flared
up. The veterans allegedly held Defence and Military Veterans
Minister Thandi Modise, her deputy Thabang Makwetla and Minister in
the Presidency Mondli Gungubele hostage for about three hours.
At least 53 veterans were arrested and charged with one count of
conspiracy to kidnap and 26 counts of kidnapping.
On May 17, the National Prosecutions Authority declined to
prosecute the matter. Phosa said his clients were overjoyed with
the decision and were now looking forward to the compensation
promised to them in the late 1990s.
"They have always maintained that the charges proffered against the
veterans were trumped up, more so in the light of earlier threats
by the state that it would charge our clients with treason and
terrorism," he said. [GN]
SOUTHWEST AIRLINES: Erlich Law Firm Files FMLA Class Action Suit
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Erlich Law Firm has filed a proposed class-action lawsuit against
Southwest Airlines for alleged violations related to employees
exercising their rights under the federal Family and Medical Leave
Act (FMLA). Affected Southwest employees in California and across
the United States may be eligible to recover compensation.
Southwest Airlines (NYSE: LUV), a primary U.S. and international
carrier, is accused of instituting a policy that effectively
penalizes its flight attendants for taking family and medical
leave. The company uses a points-based disciplinary system that
adds points to an employee's record for certain attendance
violations and removes points for good attendance. Some Southwest
employees who used FMLA leave were allegedly no longer able to have
attendance points deducted from their records, according to a
complaint filed in the U.S. District Court for the Northern
District of California.
Southwest employees fired for reaching the maximum allowed
attendance points after using FMLA leave after March 1, 2019 may be
entitled to compensation. Employees who did not have attendance
points removed from their record after taking FMLA leave during
this period may also qualify for relief.
"Firing or otherwise retaliating against an employee who takes
protected medical leave for an approved reason is unlawful,"
commented employment attorney Jason Erlich of Erlich Law Firm, an
employment law firm in Oakland, California. "If there is evidence
that Southwest Airlines engaged in FMLA violations, the company
should be held accountable. Taking legal action allows affected
employees to pursue damages and end their employer's illegal
practices."
The lawsuit's lead plaintiff Roreste Refuerzo started working as a
flight attendant for Southwest Airlines in August 2006. He was
terminated in February 2020 based on Southwest's disciplinary
points system in violation of the FMLA and California labor laws.
Refuerzo represents a proposed nationwide class and California
subclass of Southwest employees who used FMLA leave and were
wrongfully terminated or otherwise harmed by the employer's
policy.
On May 12, 2022, the court rejected Southwest's efforts to dismiss
the case. The court ruled in favor of the lead plaintiff Roreste
Refuerzo finding that his claims could support an inference that
his FMLA leave "was a negative factor in the decision to terminate
him; it quite literally gave him a worse score" and that "employees
would be less likely to exercise their FMLA leave rights because
doing so would increase their chances of termination." The court
also rejected Southwest's efforts to prevent the case moving
forward as a class action. The court has not yet ruled on the
merits of the case nor decided to certify a class.
In the meantime, Erlich Law Firm is interested in hearing about the
experiences of current and former Southwest Airlines employees who
used FMLA leave at any time since March 2019.
Southwest Airlines employees who would like to discuss their legal
rights with an employment lawyer are invited to contact Erlich Law
Firm. The consultation is free. There is no obligation to speak to
a lawyer.
If you have any questions, please call (510) 390-9140 or send an
email to Erlich Law Firm by completing the form, found HERE.
Erlich Law Firm provides skilled legal representation to workers
facing family and medical leave violations and other employment
issues. The law firm is dedicated to protecting the rights of
employees in both California state and federal courts.
If you are associated with the press and would like to contact
Jason Erlich for further questions about this case, send an email
to: https://erlich.lawyer/contact/email-jason/
Contact:
Erlich Law Firm
180 Grand Ave.
Suite 1380
Oakland, CA 94612
Phone: (510) 390-9140
Andrus Anderson LLP
155 Montgomery Street
Suite 900
San Francisco, CA 94104
Phone: (415) 986-1400
Jason Erlich
Erlich Law Firm
+1 (510) 390-9140 [GN]
SPINNAKER RESORTS: Bryant TCPA Suit Transferred to E.D. Virginia
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The case styled as John Bryant, on behalf of himself and others
similarly situated v. Spinnaker Resorts, Inc., King's Creek
Plantation, L.L.C., Case No. Case No. 6:21-cv-01837 was transferred
from the U.S. District Court for the District of Middle District of
Florida, to the U.S. District Court for the Eastern District of
Virginia on May 17, 2022.
The District Court Clerk assigned Case No. 4:22-cv-00061-AWA-LRL to
the proceeding.
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Spinnaker Resorts -- https://www.spinnakerresorts.com/ -- offers
the opportunity to book fantastic getaways or find exceptional
seasonal rental opportunities at their resorts.[BN]
The Plaintiff is represented by:
Rachel Elizabeth Kaufman, Esq.
Avi Robert Kaufman, Esq.
KAUFMAN P.A.
400 NW 26th Street
Miami, FL 33127
Phone: (305) 773-6641
Email: rachel@kaufmanpa.com
kaufman@kaufmanpa.com
The Defendant is represented by:
Donald A. Blackwell, Esq.
Frank D. Hosley, Esq.
BOWMAN AND BROOKE LLP
1064 Greenwood Boulevard, Suite 212
Lake Mary, FL 32746
Phone: (407) 804-6220
Fax: (407) 575-7610
Email: don.blackwell@bowmanandbrooke.com
frank.hosley@bowmanandbrooke.com
- and -
Robert A. Assuncao, Esq.
Steven Francis Gooby, Esq.
ANSA ASSUNCAO LLP
100 Matawan Road, Suite 410
Matawan, NJ 07747
Phone: (732) 993-9850
Fax: (732) 993-9851
Email: robert.assuncao@ansalaw.com
steven.gooby@ansalaw.com
STATE BAR: Informational Privacy Rights Suit Removed to C.D. Cal.
-----------------------------------------------------------------
The case styled JOHN ROE 1, JANE ROE 1, JANE ROE 2, JANE ROE 3,
JOHN ROE 2, individually and on behalf of all others similarly
situated v. THE STATE BAR OF CALIFORNIA; TYLER TECHNOLOGIES, INC.;
KEVAN SCHWITZER; RICK RANKIN; and DOES 4 through 10, inclusive,
Case No. 30-2022-01250695-CU-ATCXC, was removed from the Superior
Court of the State of California for the County of Orange to the
U.S. District Court for the Central District of California on May
13, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 8:22-cv-00983 to the proceeding.
The case arises from the Defendants' alleged invasion of privacy
and violations of the California Information Practices Act of 1977,
the Sherman Antitrust Act, and rights to informational privacy and
equal protection.
The State Bar of California is California's official attorney
licensing agency based in San Francisco, California.
Tyler Technologies, Inc. is a software company based in Plano,
Texas. [BN]
The Defendant is represented by:
Beth W. Petronio, Esq.
K&L GATES LLP
1717 Main Street, Suite 2800
Dallas, TX 75201
Telephone: (214) 939-5815
Facsimile: (214) 939-5849
E-mail: beth.petronio@klgates.com
- and –
Jason N. Haycock, Esq.
K&L GATES LLP
Four Embarcadero Center, Suite 1200
San Francisco, CA 94111
Telephone: (415) 882-8200
Facsimile: (415) 882-8220
E-mail: jason.haycock@klgates.com
SUNRISE PHARMACY: Faces Jimenez Wage-and-Hour Suit in E.D.N.Y.
--------------------------------------------------------------
PAOLA JIMENEZ, individually and on behalf of all others similarly
situated, Plaintiff v. SUNRISE PHARMACY I, INC. (DBA Queens Health
Pharmacy), ONESTALIO ZUNIGA, and RUBEN ZUNIGA, Defendants, Case No.
1:22-cv-02849 (E.D.N.Y., May 16, 2022) is a class action against
the Defendants for violations of the Fair Labor Standards Act and
the New York Labor Law including failure to pay overtime wages,
failure to pay spread-of-hours wages, and failure to maintain
records.
The Plaintiff was employed by the Defendants as store clerk in
Queens Health Pharmacy located in Queens, New York.
Sunrise Pharmacy I, Inc., doing business as Queens Health Pharmacy,
is a pharmacy owner and operator, with its headquarters at 7611
Broadway, Queens New York. [BN]
The Plaintiff is represented by:
Lina Stillman, Esq.
Toneille Raglan, Esq.
42 Broadway, 12t Floor
New York, NY 10004
Telephone: (212) 203-2417
TAILORED FOAM: Wynter Files FLSA Suit in N.D. Illinois
------------------------------------------------------
A class action lawsuit has been filed against Tailored Foam, Inc.
The case is styled as Robert Wynter, on behalf of himself, and all
other plaintiffs similarly situated, known and unknown v. Tailored
Foam, Inc., Case No. 1:22-cv-02570 (N.D. Ill., May 16, 2022).
The lawsuit is brought over alleged violation of the Fair Labor
Standards Act.
Tailored Foam, Inc. -- https://tailoredfoam.com/ -- is the largest
authorized Core-Fill 500 Thermal and Acoustical Masonry Foam
Insulation installer in the United States.[BN]
The Plaintiff is represented by:
Samuel David Engelson, Esq.
John William Billhorn, Esq.
BILLHORN LAW FIRM
53 W. Jackson Blvd., Suite 840
Chicago, IL 60604
Phone: (312) 853-1450
Email: sengelson@billhornlaw.com
jbillhorn@billhornlaw.com
TEN BRIDGES: Taie Must File Class Certification Bid by Nov. 18
--------------------------------------------------------------
In the class action lawsuit captioned as Taie, et al., v. Ten
Bridges LLC, et al., Case No. 2:21-cv-00526 (W.D. Wash.), the Hon.
Judge John C. Coughenour entered an order that the deadline for
Plaintiff to file a motion for class certification is Nov. 18,
2022.
The nature of suit states Contract -- Other Contract.
Ten Bridges is a real estate investment and development firm
specializing in acquiring and improving real estate assets in the
Portland Urban Core.[CC]
TIREHUB LLC: Court Denies Without Prejudice Jones' Bid to Compel
----------------------------------------------------------------
In the case, DONSHEA JONES, Plaintiff v. TIREHUB, LLC, Defendant,
Case No. 2:21-cv-0564 TLN DB (E.D. Cal.), Magistrate Judge Deborah
Barnes of the U.S. District Court for the Eastern District of
California denied the Plaintiff's April 14, 2022 motion to compel
without prejudice to renewal.
On April 14, 2022, the Plaintiff filed a motion to compel and
noticed the motion for hearing before Judge Barnes on May 13, 2022,
pursuant to Local Rule 302(c)(1). On April 29, 2022, the parties
filed a Joint Statement re Discovery Disagreement pursuant to Local
Rule 251. Review of the Joint Statement finds that the Plaintiff's
briefing is woefully inadequate and entirely insufficient to
resolve the parties' dispute.
Admittedly, Judge Barnes routinely elects not to enforce Local Rule
251(c)(3) when the parties' briefing nonetheless sufficiently and
clearly articulates the discovery items at issue as well as their
respective arguments. Indeed, it is often preferable that the
parties not reproduce in full each discovery item at issue.
In the present case, however, "PLAINTIFF'S POSITION," which
contains the Plaintiff's substantive argument, consists of less
than three pages with just three general assertions: (1) the
Defendant bears the burden of proving the validity of their
objections; (2) the Defendant must produce the identities and
contact information for the putative litigants; and (3) sanctions
are warranted. These three pages are supposed to support compelling
production of two interrogatories and eight requests for production
in this state wide class action seeking unpaid wages.
In contrast, the Defendant's well-reasoned and thorough argument
consists of roughly ten pages. Those pages address specific
discovery items at issue, provide ample citations to authority in
support of the Defendant's position, and asserts specific actions
the Defendant proposed in an attempt to resolve this dispute. While
Judge Barnes values brevity in these matters the Plaintiff's
portion of the Joint Statement is far too vague and conclusory, and
fails to address many of the Defendant's arguments with any
particularity.
One such argument is the Defendant's assertion that the Plaintiff
"failed to meet and confer regarding several responses prior" to
filing this motion. Judge Barnes finds that the Plaintiff failed to
specifically address this argument, instead stating simply that the
parties "held their Rule 26(f) conference on May 11, 2021," and
then -- almost a year later -- on April 27, 2022, "again met and
conferred telephonically regarding outstanding discovery," which
"was productive."
Judge Barnes' Standard Information re discovery disputes set forth
on the Court's web page explains that parties must meet and confer
prior to filing a discovery motion and "must again confer in person
or via telephone or video conferencing" prior to the filing of the
joint statement. Accordingly, she denied the Plaintiff's April 14,
2022 motion to compel without prejudice to renewal. The May 13,
2022 hearing is vacated.
A full-text copy of the Court's May 10, 2022 Order is available at
https://tinyurl.com/558vv6fn from Leagle.com.
TOTO USA: Redick Files ADA Suit in C.D. California
--------------------------------------------------
A class action lawsuit has been filed against Toto U.S.A., Inc., et
al. The case is styled as Crystal Redick, individually and on
behalf of all others similarly situated v. Toto U.S.A., Inc., Does
1 to 10, inclusive, Case No. 2:22-cv-02999-RGK-PLA (C.D. Cal., May
4, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
TOTO U.S.A., Inc. -- https://www.totousa.com/ -- manufactures
plumbing fixtures and bathroom accessories.[BN]
The Plaintiff is represented by:
Thiago Merlini Coelho, Esq.
Binyamin I. Manoucheri, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Boulevard 12th Floor
Los Angeles, CA 90010
Phone: (213) 381-9988
Fax: (213) 381-9989
Email: thiago@wilshirelawfirm.com
binyamin@wilshirelawfirm.com
TRANS UNION LLC: Christian Suit Alleges Violations of FCRA
----------------------------------------------------------
RICKY CHRISTIAN; ALEJANDRO GARCIA VENEGAS; LESLIE RICHARDSON;
ALEXIS LYNN LICCIARDELLO; JOSE ALBERTO ALEMAN LOPEZ; and JOSE
SANTIAGO GUTAMA CRIOLLO, individually and on behalf of all others
similarly situated, Plaintiffs v. TRANS UNION, LLC, Defendant, Case
No. 220501634 (Pa. Com. Pl., Philadelphia Cty., May 17, 2022)
alleges violations of the Fair Credit Reporting Act.
TRANS UNION, LLC operates as global information and insights
company. The Company offers various credit monitoring products,
risk management solutions, marketing services, and other related
solutions. [BN]
The Plaintiff is represented by:
Shanon J. Carson, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-4656
Facsimile. (215) 875-4604
Email: scarson@bm.net
TRANSWORLD SYSTEMS: Order Continuing Deadlines Entered in Hoffman
-----------------------------------------------------------------
In the class action lawsuit captioned as Hoffman, et al., v.
Transworld Systems Incorporated, et al., Case No. 2:18-cv-01132-TSZ
(W.D. Wash.), the Hon. Judge Thomas S. Zilly entered an order
that:
1. The current deadlines for the parties to file dispositive
motions for summary judgment and motions related to expert
witnesses as set forth in the Court's Order Setting Trial
and Related Dates are hereby stayed until further order of
the Court.
2. Within five days of the Court's decision on Plaintiffs'
motions seeking discovery from TSI that are pending before
the Court (together, the "Discovery Motions"), the parties
shall meet and confer and attempt to agree on new filing
and noting deadlines for dispositive motions for summary
judgment and motions related to expert witnesses and, if
necessary, a comprehensive new schedule that accounts for
the continued deadlines to file these motions, as well as
the continued noting dates for TSI's Motion for Summary
Judgment and Plaintiffs' Motion for Class Certification,
which were stayed until further order by the Court's March
14, 2022 Order. If the parties cannot agree, the parties
shall submit their proposals for a revised schedule to the
Court within eight days of the Court's decision on the
Discovery Motions.
3. The parties are granted leave to take the depositions of
expert witnesses designated under Fed. R. Civ. P. 26(a)
(2), within 30 days of the Court's decision on the pending
Discovery Motions.
4. The parties are granted leave to take the deposition of
the Fed. R. Civ. P. 30(b)(6) designated representative of
subpoenaed non-party Boston Portfolio Advisers, Inc.
("BPA"), within 30 days of the Court's decision on the
pending Discovery Motions.
5. The parties are granted leave to take the deposition of
the Fed. R. Civ. P. 30(b)(6) designated representative of
non-party Pennsylvania Higher Education Assistance Agency,
concerning the documents produced by BPA and BPA's
testimony, if any, within 30 days of the Court's decision
on the pending Discovery Motions.
6. This order does not affect the filing or noting date of
the pending dispositive motion filed by defendants Matthew
Cheung or Patenaude and Felix, APC.
7. No other deadlines that have previously passed shall be
resurrected at this time.
TSI is a market-leading provider of accounts receivable management
and student loan servicing solutions.
A copy of the Court's order dated May 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3sLfn3t at no extra charge.[CC]
UNION PACIFIC: Fitness-for-Duty Program Violates ADA, Vasquez Says
------------------------------------------------------------------
ROLANDO VASQUEZ, individually and on behalf of all others similarly
situated, Plaintiff v. UNION PACIFIC RAILROAD CO., Defendant, Case
No. 5:22-cv-00478 (W.D. Tex., May 13, 2022) is a class action
against the Defendant for violations of the Americans with
Disabilities Act.
According to the complaint, the Defendant's Fitness-for-Duty
policies and practices discriminated against employees with
disabilities, including the Plaintiff. The Defendant's
Fitness-for-Duty evaluations are not individualized assessments of
the employee's ability to safely perform the essential functions of
the employee's job. Despite being qualified and safely performing
his job without incident, the Plaintiff was removed from service
for a Fitness-for-Duty evaluation under the new program and
excluded from work at Union Pacific on the basis of his
disability.
Union Pacific Railroad Co. is a railroad carrier engaged in
interstate commerce with operations in Texas, headquartered in
Omaha, Nebraska. [BN]
The Plaintiff is represented by:
Paul J. Lukas, Esq.
James H. Kaster, Esq.
Caitlin L. Opperman, Esq.
NICHOLS KASTER, PLLP
80 South Eighth Street
4700 IDS Center
Minneapolis, MN 55402-2242
Telephone: (612) 256-3200
Facsimile: (612) 338-4878
E-mail: lukas@nka.com
kaster@nka.com
copperman@nka.com
UNITED ELECTRICAL: Court Conditionally Certifies Class in Heeg Suit
-------------------------------------------------------------------
In the case, TRAVIS HEEG, et al., Plaintiffs v. UNITED ELECTRICAL
CONTRACTORS, INC., Defendant, Case No. 1:21-cv-796 (W.D. Mich.),
Judge Hala Y. Jarbou of the U.S. District Court for the Western
District of Michigan, Southern Division, grants the Plaintiffs'
motion to conditionally certify a collective action under the Fair
Labor Standards Act.
I. Introduction
The lawsuit is an action seeking damages under the FLSA, 29 U.S.C.
Section 201, et seq., and Michigan's Workforce Opportunity Wage Act
(WOWA), Mich. Comp. Laws Section 408.411, et seq. Plaintiffs Travis
Heeg, Dalton Parish, Andrew Crampton, Evan Kopke, Timothy Nolen,
Richard Johnson, and Marius Richardson are or were employed by
Defendant United Electrical Contractors, Inc. ("UEC") as electrical
workers. They contend that UEC did not properly compensate them for
time worked. Before the Court is the Plaintiffs' motion to
conditionally certify a collective action under the FLSA.
II. Background
UEC, which has offices in Lansing and Livonia, Michigan, is an
electrical contractor that works on construction sites throughout
the State of Michigan. It employed Plaintiffs and other electrical
workers, paying them on an hourly basis. There are three types of
electrical workers employed by UEC: Apprentice Electricians,
Journeymen Electricians, and Foremen. Each type has its own job
responsibilities and rate of pay.
Plaintiff Heeg worked for UEC as an Apprentice Electrician from
November 2016 through November 2020. Plaintiff Richardson worked
for UEC as an Apprentice Electrician from January 2020 through
October 2020. Plaintiff Kopke worked for UEC as an Apprentice
Electrician from May 2017 to February 2021. Plaintiff Crampton
worked for UEC as a Journeyman Electrician and Foreman from
September 2016 to February 2021. Plaintiff Parish worked for UEC as
an Apprentice Electrician from March 2020 to March 2021. Plaintiff
Nolen worked for UEC as a Journeyman Electrician and Foreman from
January 2018 to January 2021. Plaintiff Johnson worked for UEC as a
Journeyman Electrician and Foreman from April 2013 to October
2020.
The Plaintiffs assert four violations of the FLSA and/or WOWA: (1)
unpaid shop time; (2) undercompensated overtime pay due to a "per
diem" policy; (3) unpaid training; and (4) unpaid print review.
In their affidavits, the Plaintiffs contend that UEC required them
to report to UEC's "shop" in Lansing several times per week in
order to load materials and tools into UEC's company vehicle and
then travel to the job site. UEC did not pay them for this time;
UEC considered the time of their arrival at the jobsite as the
start of their compensable workday. Similarly, at the end of the
workday, UEC would require them to travel back to the shop and
unload materials and tools. UEC would not pay them for the time
traveling back to the shop or for the time unloading the vehicle.
The Plaintiffs also contend, and UEC acknowledges, that UEC had a
policy of paying its electrical workers an extra $2 per hour as a
"per diem" when working at a job site more than sixty miles from
the shop. This per diem did not reimburse the Plaintiffs for food
and other expenses; it was simply an addition to their hourly pay.
However, UEC did not include this extra pay in the Plaintiffs'
hourly rate when calculating overtime pay.
The Plaintiffs contend that UEC required them to complete online
training modules as a condition for their employment and did not
compensate them for the time spent undergoing this training. To the
extent they worked as Apprentice Electricians, the Plaintiffs
contend that they did not have a written apprenticeship agreement
with UEC, and UEC did not employ them under an apprenticeship
program that met the Department of Labor's requirements.
Finally, the Plaintiffs contend that UEC required electrical
workers working as Foremen to review job prints and prepare for the
week's activities over the weekend, without compensation.
The Plaintiffs now ask the Court to conditionally certify this
action as a collective action under the FLSA that includes a class
of similarly situated individuals, known and unknown, who were
employed by UEC as electricians, including Apprentices, Journeymen,
and Foremen, and who were deprived of overtime for hours worked in
excess of forty hours a week over the course of the last three
years.
III. Parties' Arguments
According to the Plaintiffs' evidence at this stage, UEC has
required each of them to perform uncompensated work loading tools
and materials at the shop before traveling to the jobsite. UEC also
failed to properly compensate them for overtime hours worked
because it did not include the "per diem" when calculating their
regular rate of pay. Also, it has required them to perform
mandatory training and off-the-clock work without compensating
them. And to the extent UEC relies on an apprenticeship program to
exclude training from compensated work, the Plaintiffs assert that
this program does not meet the Department of Labor's requirements
and the Plaintiffs who worked as Apprentice Electricians did not
sign agreements to participate in such a program. Although the
proofs will likely differ as to each individual, the Plaintiffs'
work environments appear to be substantially similar, and they
share common theories of violations that likely apply to other
electrical workers.
First, UEC asserts that its employees are generally responsible for
recording, completing, and reviewing their timesheets.
Consequently, time that is not reported will not be compensated. As
to shop time, UEC asserts that its policies prohibit employees from
retrieving materials and tools from the shop and transporting them
to the job site. Regarding the per diem, UEC asserts that it
conducted an audit for the three-year period at issue in this case
and reimbursed its employees for the amounts it should have paid
them had it used the per diem to calculate the regular rate. With
respect to the trainings, UEC provides evidence of signed
agreements with the four named Plaintiffs who worked as Apprentice
Electricians. Finally, to the extent Foremen or other electrical
workers are given prints to review over the weekend, UEC contends
that this time is compensable as long as it is recorded on the
employee's timesheet.
IV. Disposition
Judge Jarbou is satisfied that the Plaintiffs have established
their burden of showing that conditional certification is
warranted. Accordingly, she grants their motion insofar as it seeks
that certification.
The Plaintiffs' motion also asks the Court to require UEC to
provide a complete list of individuals employed by UEC as
electrical workers in the last three years. Judge Jarbou defers
that request to the discovery process.
Finally, the Plaintiffs ask the Court to approve the notice
attached to their motion, which will be sent to the potential class
members. UEC provides no reason to reject the notice. Judge Jarbou
approves it.
An order will be entered consistent with Judge Jarbou's Opinion.
A full-text copy of the Court's May 10, 2022 Opinion is available
at https://tinyurl.com/fsatp9wy from Leagle.com.
UNITED STATES: Air Force Officer's Class Cert. Bid Nixed as Moot
----------------------------------------------------------------
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 (M.D. Ga.), the Hon. Judge
Tilman E. Self, III, entered an order terminating as moot motion to
certify class and appoint counsel, and motion for preliminary
injunction.
The nature of suit states Civil Rights -- Other Civil Rights.
The United States Air Force is the air service branch of the United
States Armed Forces, and is one of the eight U.S. uniformed
services.[CC]
UNITED STATES: Air Force Officers Seek to Certify Class
-------------------------------------------------------
In the class action lawsuit captioned as AIR FORCE OFFICER, AIR
FORCE NCO, AIR FORCE SPECIAL AGENT, and AIR FORCE ENGINEER, on
behalf of and all others similarly situated, v. LLOYD J. AUSTIN,
III, in his official capacity as Secretary of Defense; FRANK
KENDALL, III, in his official capacity as Secretary of the Air
Force; and ROBERT I. MILLER, in his official capacity as Surgeon
General of the Air Force, Case No. 5:22-cv-00009-TES (M.D. Ga.),
the Plaintiff asks the Court to enter an order:
the Plaintiffs Air Force Officer, Air Force NCO, Air Force Special
Agent, and Air Force Engineer ask the Court to enter an order:
1. certifying a class, under Rule 23(b)(2), consisting of:
"all members of the United States Air Force who (a) are
subject to a mandate of the Department of Defense or Air
Force to receive a COVID-19 vaccine, (b) submitted a
request for religious accommodation regarding such mandate
based on a sincerely held religious belief, and (c) have
received or will receive a final denial of such request
from the Department of Defense or Air Force;
2. appointing the Plaintiffs' counsel as Class counsel, under
Rule 23(g); and
3. granting an entry of a Class-wide preliminary injunction,
under Rule 65, enjoining Defendants from enforcing certain
COVID-19 vaccine mandates -- specifically, the Department
of Defense's August 24, 2021 Order and Department of Air
Force's September 3, 2021 Order -- against Air Force NCO,
Air Force Special Agent, Air Force Engineer, or any member
of the Class, and enjoining Defendants from taking any
adverse action against Air Force NCO, Air Force Special
Agent, Air Force Engineer, or any member of the Class on
the basis of this lawsuit or of any Plaintiff's or Class
member's request for religious accommodation related to
the Mandates.
The United States Air Force 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 Plaintiffs' motion dated May 3, 2022 is available
from PacerMonitor.com at https://bit.ly/3LpoiOB at no extra
charge.[CC]
The Plaintiffs are represented by:
Stephen Crampton, Esq.
Adam S. Hochschild, Esq.
Mary Catherine Hodes, Esq.
Michael McHale, Esq.
THOMAS MORE SOCIETY
PO Box 4506
Tupelo, MS 38803
Telephone: (662) 255-9439
E-mail: scrampton@thomasmoresociety.org
adam@hochschildlaw.com
mchodes@thomasmoresociety.org
mmchale@thomasmoresociety.org
- and -
Paul M. Jonna, Esq.
LiMandri & Jonna LLP
P.O. Box 9120
Rancho Santa Fe, CA 92067
Telephone: (858) 759-994
E-mail: pjonna@limandri.com
- and -
Michael R. Hirsh, Esq.
HIRSH LAW OFFICE, LLC
2295 Towne Lake Parkway, Suite 116-181
Woodstock, GA 30189
Telephone: (678) 653-9907
E-mail: michael@hirsh.law
UPSTART HOLDINGS: Bernstein Liebhard Reminds of July 12 Deadline
----------------------------------------------------------------
Did you lose money on investments in Upstart Holdings? If so,
please visit Upstart Holdings, Inc. Shareholder Class Action
Lawsuit or contact Peter Allocco at (212) 951-2030 or
pallocco@bernlieb.com to discuss your rights.
Bernstein Liebhard LLP on May 16 disclosed that a securities class
action lawsuit has been filed on behalf of investors who purchased
or acquired the securities of Upstart Holdings, Inc. ("Upstart" or
the "Company") (NASDAQ: UPST) between November 9, 2021 and May 9,
2022, inclusive (the "Class Period"). The lawsuit was filed in the
United States District Court for the Northern District of
California and alleges violations of the Securities Exchange Act of
1934.
Upstart is a cloud-based artificial intelligence ("AI") lending
platform. The Company claims that "AI lending enables a superior
loan product with improved economics that can be shared between
consumers and lenders" And that Upstart "leverage[s] the power of
AI to more accurately quantify the true risk of a loan." The
Company recognizes revenue primarily from fees paid by banks.
Plaintiff alleges that Defendants made materially false and
misleading statements throughout the Class Period. Specifically,
Plaintiff alleges that: (1) Upstart's AI model could not adequately
account for macroeconomic factors such as interest rates that
impact the market-clearing price for loans; (2) as a result,
Upstart was experiencing negative impact on its conversion rate;
and (3) as a result, the Company was reasonably likely to use its
balance sheet to fund loans.
On May 9, 2022, after the market closed, Upstart announced its
first quarter 2022 financial results in a press release. Therein,
the Company reduced its fiscal 2022 guidance, expecting revenue of
approximately $1.25 billion and contribution margin of 48%. During
the related conference call, Upstart's Chief Financial Officer
cited "rising interest rates and rising consumer delinquencies [as]
putting downward pressure on conversion."
On this news, the Company's stock price fell $43.52, or over 56%,
to close at $33.61 per share on May 10, 2022.
If you wish to serve as lead plaintiff, you must move the Court no
later than July 12, 2022. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. Your ability to share in any recovery doesn't require
that you serve as lead plaintiff. If you choose to take no action,
you may remain an absent class member.
If you purchased UPST securities, and/or would like to discuss your
legal rights and options please visit Upstart Holdings, Inc.
Shareholder Class Action Lawsuit or contact Peter Allocco at (212)
951-2030 or pallocco@bernlieb.com.
Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion
for its clients. In addition to representing individual investors,
the Firm has been retained by some of the largest public and
private pension funds in the country to monitor their assets and
pursue litigation on their behalf. As a result of its success
litigating hundreds of lawsuits and class actions, the Firm has
been named to The National Law Journal's "Plaintiffs' Hot List"
thirteen times and listed in The Legal 500 for ten consecutive
years.
Contact Information:
Peter Allocco
Bernstein Liebhard LLP
https://www.bernlieb.com
(212) 951-2030
pallocco@bernlieb.com [GN]
UPSTART HOLDINGS: Bronstein Gewirtz Reminds of July 12 Deadline
---------------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC notifies investors that a class
action lawsuit has been filed against Upstart Holdings, Inc.
("Upstart" or the "Company") (NASDAQ: UPST) and certain of its
officers, on behalf of shareholders who purchased or otherwise
acquired Upstart securities between November 9, 2021 and May 9,
2022, inclusive (the "Class Period"). Such investors are encouraged
to join this case by visiting the firm's site:
www.bgandg.com/upst.
This class action seeks to recover damages against Defendants for
alleged violations of the federal securities laws under the
Securities Exchange Act of 1934.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to
investors: (1) that Upstart's AI model could not adequately account
for macroeconomic factors such as interest rates that impact the
market-clearing price for loans; (2) that, as a result, Upstart was
experiencing negative impact on its conversion rate; (3) that, as a
result, the Company was reasonably likely to use its balance sheet
to fund loans; and (4) that, as a result of the foregoing,
Defendants' positive statements about the Company's business,
operations, and prospects were materially false and/or misleading
and/or lacked a reasonable basis.
A class action lawsuit has already been filed. If you wish to
review a copy of the Complaint you can visit the firm's site:
www.bgandg.com/upst or you may contact Peretz Bronstein, Esq. or
his Investor Relations Analyst, Yael Nathanson of Bronstein,
Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss in
Upstart you have until July 12, 2022, to request that the Court
appoint you as lead plaintiff. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff.
Bronstein, Gewirtz & Grossman, LLC is a corporate litigation
boutique. Our primary expertise is the aggressive pursuit of
litigation claims on behalf of our clients. In addition to
representing institutions and other investor plaintiffs in class
action security litigation, the firm's expertise includes general
corporate and commercial litigation, as well as securities
arbitration. Attorney advertising. Prior results do not guarantee
similar outcomes.
Contact:
Bronstein, Gewirtz & Grossman, LLC
Peretz Bronstein or Yael Nathanson
212-697-6484 | info@bgandg.com [GN]
UPSTART HOLDINGS: Hagens Berman Reminds of July 12 Deadline
-----------------------------------------------------------
Hagens Berman urges Upstart Holdings, Inc. (NASDAQ: UPST) investors
with significant losses to submit your losses now. A securities
fraud class action has been filed and investors with significant
losses may have the opportunity to lead the case.
Class Period: Nov. 9, 2021 - May 9, 2022
Lead Plaintiff Deadline: July 12, 2022
Visit: https://www.hbsslaw.com/investor-fraud/UPST
Contact An Attorney Now: UPST@hbsslaw.com
844-916-0895
Upstart Holdings, Inc. (UPST) Securities Fraud Class Action:
The litigation focuses on Upstart's claims that its proprietary AI
algorithm "enables a superior loan product with improved economics
that can be shared between consumers and lenders" and that Upstart
"leverage[s] the power of AI to more accurately quantify the true
risk of a loan."
The complaint alleges Defendants failed to disclose to investors
that: (1) Upstart's AI model could not adequately account for
macroeconomic factors such as interest rates that impact the
market-clearing price for loans; (2) as a result, Upstart was
experiencing negative impacts on its conversion rate; and, (3) as a
result, Upstart was reasonably likely to use its balance sheet to
fund loans.
Investors began to learn the truth on May 9, 2022, when Upstart
announced poor Q1 2022 financial results, slashed revenue outlook,
and disclosed a whopping $604 million of loans residing on its
balance sheet - an amount that is more than twice that held as of
Dec. 31, 2021. During the earnings call that day, management
disclosed it was using company capital as a "funding buffer for
core personal loans in periods of interest rate fluctuation where
the market clearing price is in flux."
This news drove the price of Upstart shares crashing 56% lower on
May 10, 2022, wiping out over $3 billion of value, and resulted in
a slew of analyst downgrades and target price reductions.
"We're focused on investors' losses and whether Upstart
misrepresented the effectiveness of its algorithm and the degree to
which it was insulated from credit risk," said Reed Kathrein, the
Hagens Berman partner leading the investigation.
If you invested in Upstart Holdings and have significant losses, or
have knowledge that may assist the firm's investigation, click here
to discuss your legal rights with Hagens Berman.
Whistleblowers: Persons with non-public information regarding
Upstart Holdings should consider their options to help in the
investigation or take advantage of the SEC Whistleblower program.
Under the new program, whistleblowers who provide original
information may receive rewards totaling up to 30 percent of any
successful recovery made by the SEC. For more information, call
Reed Kathrein at 844-916-0895 or email UPST@hbsslaw.com.
About Hagens Berman
Hagens Berman is a national law firm with eight offices in eight
cities around the country and over eighty attorneys. The firm
represents investors, whistleblowers, workers and consumers in
complex litigation. More about the firm and its successes is
located at hbsslaw.com. For the latest news visit our newsroom or
follow us on Twitter at @classactionlaw.
Contact:
Reed Kathrein, 844-916-0895 [GN]
UPSTART HOLDINGS: Robbins LLP Reminds of July 12 Deadline
---------------------------------------------------------
The Class: Shareholder rights law firm Robbins LLP informs
investors that a shareholder filed a class action on behalf of all
persons and entities that purchased or otherwise acquired Upstart
Holdings, Inc. (NASDAQ: UPST) securities between November 9, 2021
and May 9, 2022, for violations of the Securities Exchange Act of
1934. Upstart is a cloud-based artificial intelligence (AI) lending
platform.
What is this Case About: Upstart Holdings, Inc. (UPST) Misled
Investors Regarding its Business Prospects
According to the complaint, during the class period, defendants
failed to disclose to investors that Upstart's AI model could not
adequately account for macroeconomic factors such as interest rates
that impact the market-clearing price for loans. In addition, the
Company was experiencing negative impact on its conversion rate and
reasonably likely to use its balance sheet to fund loans.
On May 9, 2022, Upstart announced its first quarter 2022 financial
results, reducing its fiscal 2022 guidance, expecting revenue of
approximately $1.25 billion and contribution margin of 48%. During
the related conference call, Upstart's Chief Financial Officer
indicated that the "balance of loans, notes, and residuals at the
end of the quarter was … up to $604 million from $261 million in
Q4," citing "rising interest rates and rising consumer
delinquencies [as] putting downward pressure on conversion." On
this news, the Company's stock price fell $43.52, or 56%, to close
at $33.61 per share on May 10, 2022.
Next Steps: If you acquired shares of Upstart Holdings, Inc. (UPST)
between November 9, 2021 and May 9, 2022, you have until July 12,
2022, to ask the court to appoint you lead plaintiff for the class.
A lead plaintiff is a representative party acting on behalf of
other class members in directing the litigation. You do not have to
participate in the case to be eligible for a recovery.
All representation is on a contingency fee basis. Shareholders pay
no fees or expenses.
About Robbins LLP: A recognized leader in shareholder rights
litigation, the attorneys and staff of Robbins LLP have been
dedicated to helping shareholders recover losses, improve corporate
governance structures, and hold company executives accountable for
their wrongdoing since 2002. To be notified if a class action
against Upstart Holdings, Inc. settles or to receive free alerts
when corporate executives engage in wrongdoing, sign up for Stock
Watch today.
Attorney Advertising. Past results do not guarantee a similar
outcome.
Contacts:
Aaron Dumas
Robbins LLP
5040 Shoreham Place
San Diego, CA 92122
adumas@robbinsllp.com
(800) 350-6003
www.robbinsllp.com [GN]
VALE SA: SEC Files ESG Enforcement Action After Securities Suit
---------------------------------------------------------------
Kevin B. Muhlendorf, Esq., kmuhlendorf@wiley.law -- Holly Wilson,
Esq., -- hwilson@wiley.law and Martha E. Marrapese, Esq. --
mmarrapese@wiley.law -- of Wiley, disclosed that as is expected to
see in 2022, the U.S. Securities and Exchange Commission (SEC) is
continuing an aggressive push in policing Environmental, Social,
and Governance (ESG) related matters. In just the first few months
of this year, the SEC has already brought a case it hails as its
first major ESG enforcement action, Securities & Exchange
Commission v. Vale S.A., 1:22-cv-02405 (E.D.N.Y.). In addition, the
Commission proposed a new climate disclosure rule. All signs point
to the SEC moving full steam ahead on ESG cases.
SEC Brings First ESG Enforcement Action: SEC v. Vale S.A.
Exactly one year from the formation of the ESG Task Force, on April
28th, the SEC brought its first ESG-related enforcement action. In
its 285-paragraph complaint, the SEC charged Vale S.A. (Vale), a
Brazilian iron ore producer, in the U.S. District Court for the
Eastern District of New York with securities fraud.[1] The SEC
alleges that Vale made false and misleading statements related to
the safety and stability of dams holding toxic waste by-products of
its mining operations. But the SEC's complaint deserves more
context: It comes nearly two years after private plaintiffs filed a
similar securities fraud class action against Vale and its senior
executives.[2]
Both actions arise out the 2019 collapse of Vale's Brumadinho dam.
On January 25, 2019, the Brumadinho dam at Vale's iron ore mine in
Córrego do Feijão, Brazil failed and allegedly killed 270
individuals and caused significant environmental damage. The
complaints further allege that following the collapse, the value of
the Vale's stock declined significantly. The SEC Complaint
specifically alleges that Vale's market capitalization declined by
over $4 billion, its American Depositary Shares lost more than 25%
of their value, and that Vale's corporate credit rating was
downgraded to junk status.
Each complaint relies heavily on Vale's reaction to an earlier dam
failure. In 2015, Vale's Mariana dam collapsed, allegedly killing
19 individuals and polluting the surrounding environment. As a
result, Vale was required to evaluate its other dams, including the
Brumadinho dam, disclose any safety issues, and conduct a number of
audits. Most importantly, in the aftermath of the Mariana dam
collapse, Vale allegedly vowed publicly to prevent another disaster
and committed itself to sustainability and safety. These and later
pronouncements about safety and sustainability made in Vale's
Annual Reports, Sustainability Reports, and Form 6-Ks permeate both
complaints.
Because the class action complaint preceded the SEC's case, the SEC
has had the benefit of observing and learning from two-years of
private litigation. Perhaps most illuminating for the SEC was
Vale's unsuccessful motion to dismiss.[3] In its Memorandum and
Order[4] denying the motion, the court held that while Vale's
statements about safety and sustainability were "generic" and
unactionable to the extent they were purely aspirational, by
"repeatedly" emphasizing its commitment to these priorities, Vale
"put the topic at issue" such that, as a matter of law, the
statements could be material to investors.[5] In reaching this
conclusion, the court explained that "certain statements, 'viewed
in isolation, may be mere puffery,'" but "when the statements are
'made repeatedly in an effort to reassure the investing public'
about matters particularly important to the company and investors,
those statements may become material to investors."[6] The court
also held that omissions from Vale's Sustainability Reports and
Form 6-Ks were misleading. Specifically, it concluded: "Vale's
omission of alleged facts suggesting that there were known issues
with dams and that [Stability Condition Statements] were unduly
influenced and certified for dams with insufficient factors of
safety obviously paint an incomplete and misleading picture about
the stability of Vale dams."[7] Vale's motion for reconsideration
was denied.
With the benefit of the court's decision, the SEC now claims that
Vale's "concealment of the true condition of the Brumadinho and
other tailings dams caused Vale's sustainability reports, periodic
filings, and other [ESG] disclosures to be materially false and
misleading."[8] Notably, the SEC alleges that several statements
made about the number and quality of audits in Vale's 2016 and 2017
Sustainability Reports were "false and misleading," because "[b]y
emphasizing 'external audits' and 'responsible auditors,' Vale
falsely conveyed the message that the audit process had integrity
and was independent."[9] The SEC also takes issue with numerous
similar statements in Vale's SEC filings related to its compliance
with environmental regulations.
Upon the filing of the SEC's lawsuit, Vale issued a statement that
it "denies the SEC's allegations, including the allegation that its
disclosures violated U.S. law, and will vigorously defend this
case."[10]
SEC Proposes Rule on Climate Risk Disclosures
Additionally, as the SEC promised last year, on March 21, 2022, the
SEC issued a proposed rule[11] for enhancing and standardizing
climate-related disclosures provided by public companies.
Simultaneous with the SEC's proposal, Chairman Gary Gensler stated,
"[t]oday, investors representing literally tens of trillions of
dollars support climate-related disclosures because they recognize
that climate risks can pose significant financial risks to
companies, and investors need reliable information about climate
risks to make informed investment decisions."[12]
Under the proposed rule, a registrant would be required to provide
the following disclosures:
Climate-related risks that are reasonably likely to have a material
impact on a public company's business, results of operations, or
financial condition;
Greenhouse gas emissions associated with a public company; and
Climate-related financial metrics to be included in audited
financial statements.
The deadline for comments on the proposed rule was recently
extended from May 20, 2022 to June 17, 2022 after vociferous
objection to the shortened comment period for such consequential
regulation.[13]
Notable political voices have already come out in opposition.
Senator Joe Manchin (R-WV) sharply criticized the SEC's rule in an
April 4th public letter to Chairman Gensler.[14] He expressed
"deep[] concern[] that the proposed rule has the potential to run
counter to the SEC's long-standing commitment to its mission by
adding undue burdens on companies, while simultaneously sending a
signal of opposition to the all-of-the-above energy policy that is
critical to our country right now."[15] Senator Manchin also called
into question the necessity and utility of the rule, pointing out
that many companies already publish sustainability reports, and
accused the SEC of crafting a rule that "aims to solve a problem
that does not exist."[16] Unsurprisingly, Senator Manchin also
highlighted that he believed "the most concerning piece" of the
rule to be that it appears to "target[] . . . our nation's fossil
fuel companies."[17] Likewise, West Virginia Attorney General
Patrick Morrisey has threatened to sue, claiming that the rule is
unconstitutional.[18]
SEC Commissioner Hester M. Peirce—the lone vote against the
proposed rule—has also voiced her concern.[19] In a statement
entitled "We are Not the Securities and Environment Commission - At
Least Not Yet," Peirce offered her critique. She said: "We are here
laying the cornerstone of a new disclosure framework that will
eventually rival our existing securities disclosure framework in
magnitude and cost and probably outpace it in complexity. The
building project upon which we are embarking will consume our
attention and enrich many, as any massive building project does.
The placard at the door of this hulking green structure will
trumpet our revised mission: 'protection of stakeholders,
facilitating the growth of the climate-industrial complex, and
fostering unfair, disorderly, and inefficient markets.' This new
edifice will cast a long shadow on investors, the economy, and this
agency."[20]
Examinations Names ESG as 2022 Priority
Like last year, the Division of Examinations included ESG in its
2022 Examinations Priorities.[21] It specified that there is a high
risk of greenwashing that could result in investors being misled.
Accordingly, the Division of Examinations "will continue to focus
on ESG-related advisory services and investment products."[22]
Typically, these reviews will center on whether registered
investment advisers and funds are:
"Accurately disclosing their ESG investing approaches and have
adopted and implemented policies, procedures, and practices
designed to prevent violations of the federal securities laws in
connection with their ESG-related disclosures, including review of
their portfolio management processes and practices";
"Voting client securities in accordance with proxy voting policies
and procedures and whether the votes align with their ESG-related
disclosures and mandates"; or
"Overstating or misrepresenting the ESG factors considered or
incorporated into portfolio selection (e.g., greenwashing), such as
in their performance advertising and marketing."[23]
Notable Leadership Changes
Recently, the SEC's head of the ESG Task Force, Kelly Gibson,
departed for private practice. In her place, the SEC has appointed
Sanjay Wadhwa, Deputy Director of the Division of Enforcement. In
addition to serving as Deputy Director of Enforcement, Wadhwa has
had various prior roles, including various leadership positions in
the SEC's Market Abuse Unit as well as the New York Regional
Office. It is fair to say that having placed first Ms. Gibson, and
now Mr. Wadhwa, in charge of the ESG Task Force, the current
Commission intends to demonstrate that ESG is a very serious
priority.
Predictions and Takeaways
Corporations need to be extremely vigilant in monitoring the
accuracy of any and all public statements related to ESG and should
take a liberal view of what in fact constitutes ESG. The Vale case
demonstrates that the SEC is willing to look beyond filings to
underlying reports and statements to bring a case. Further,
material omissions are just as problematic as affirmative
representations. Not only should companies make sure what they are
saying regarding ESG is accurate, but they should make sure what
they are not saying is not misleading. Public statements should be
realistic, accurate, and fulsome. Additionally, corporations
subject to ongoing or past private securities litigation with any
sort of connection to ESG should evaluate whether the litigation
will now attract the SEC's attention or affect the SEC's litigation
strategy.
It is without question that the SEC's campaign on ESG will
continue. As more enforcement cases are filed, companies will be
able to better define the contours -- or lack thereof -- of the
Commission's ESG expectations. In the interim, companies need to
assess their ESG posture and public statements holistically to make
sure aspirational goals do not become the basis for fraud
allegations if they are not met.
[1] Complaint, Securities & Exchange Commission v. Vale S.A.,
1:22-cv-02405 (E.D.N.Y. filed Apr. 28, 2022), ECF No. 1,
https://www.sec.gov/litigation/complaints/2022/comp-pr2022-72.pdf.
[2] Amended Complaint, In re Vale S.A. Securities Litigation,
1:19-cv-00526 (E.D.N.Y. filed Oct. 25, 2019), ECF No. 47.
[3] Mot. to Dismiss, In re Vale S.A. Securities Litigation,
1:19-cv-00526 (E.D.N.Y. filed Feb. 21, 2020), ECF No. 63.
[4] Mem. & Order, In re Vale S.A. Securities Litigation,
1:19-cv-00526 (E.D.N.Y. filed May 20, 2022), ECF No. 74.
[5] Id. at 22.
[6] Id. at 21-22.
[7] Id. at 26.
[8] Complaint, Securities & Exchange Commission v. Vale S.A ,
1:22-cv-02405 (E.D.N.Y. filed Apr. 28, 2022), ECF No. 1, ¶ 16.
[9] Id. at 231-32, 237-239.
[10] Vale, Vale informs about the United States Securities and
Exchange Commission ("SEC") (Apr. 28, 2022),
http://saladeimprensa.vale.com/en/Paginas/Articles.aspx?r=Vale_informs_about_the_United_States_Securities_and_Exchange_Commission_%E2%80%9CSEC%E2%80%9D_&s=Finance&rID=1570&sID=5.
[11] The Enhancement and Standardization of Climate-Related
Disclosures for Investors, Proposed Rule, 87 Fed. Reg. 21334 (April
11, 2022),
https://www.govinfo.gov/content/pkg/FR-2022-04-11/pdf/2022-06342.pdf.
[12] Press Release, SEC, SEC Proposes Rules to Enhance and
Standardize Climate-Related Disclosures for Investors (Mar. 21,
2022), https://www.sec.gov/news/press-release/2022-46.
[13] Press Release, SEC, SEC Extends Comment Period for Proposed
Rules on Climate-Related Disclosures, Reopens Comment Periods for
Proposed Rules Regarding Private Fund Advisers and Regulation ATS
(May 9, 2022), https://www.sec.gov/news/press-release/2022-82.
[14] Letter from Joe Manchin III, United States Senator, to Gary
Gensler, Chairman, SEC, (Apr. 4, 2022),
https://www.manchin.senate.gov/imo/media/doc/SEC%20ClimateDisclosure%20Letter.pdf?cb.
[15] Id. at 1.
[16] Id.
[17] Id.
[18] Letter from Patrick Morrisey, West Virginia Attorney General,
to The Honorable Allison Herren Lee, Acting Chair, SEC (Mar. 25,
2021),
https://ago.wv.gov/Documents/Letter%20to%20Acting%20Chair%20Lee.pdf.
[19] Statement, Commissioner Hester M. Peirce, SEC, We are Not the
Securities and Environment Commission - At Least Not Yet (Mar. 21,
2022),
https://www.sec.gov/news/statement/peirce-climate-disclosure-20220321.
[20] Id.
[21] 2022 Examination Priorities, Division of Examinations, SEC
(Mar. 30, 2022),
https://www.sec.gov/files/2022-exam-priorities.pdf.
[22] Id. at 13.
[23] Id. [GN]
VAN'S INT'L: Bids to Dismiss & to Stay Brown Class Suit Denied
--------------------------------------------------------------
In the case, MOLLY BROWN, Plaintiff v. VAN'S INTERNATIONAL FOODS,
INC., Defendant, Case No. 22-cv-00001-WHO (N.D. Cal.), Judge
William H. Orrick of the U.S. District Court for the Northern
District of California grants Defendant Sara Lee's motion to
dismiss and denies its motion to stay pending the appeal of a
similar case.
I. Background
In this putative class action, Plaintiff contends that the
packaging for certain types of frozen waffles and pancakes produced
by Defendant Van's International Foods, Inc. ("Sara Lee")
misleadingly claims to provide specific amounts of protein per
serving in violation of state and federal law. Sara Lee moved to
dismiss and to stay pending the appeal of a similar case.
Sara Lee manufactures, advertises, and sells a range of products,
including the frozen waffles and pancakes at issue in the case (the
"Products"). According to the allegations in the complaint, Sara
Lee advertises that the Products contain certain amounts of protein
by including the amount of protein on the front of the packaging,
rather than just in the Nutrition Facts label. The packaging for
Sara Lee's Power Grains Protein Original Waffles, for instance,
features a "10g PLANT-BASED protein" statement on the front cover.
The packaging does not include a digestibility-adjusted protein
figure (expressed as a percent daily value) on the Nutrition Facts
panel.
Ms. Brown, a citizen of California, began purchasing the Products
in 2019 and continued to purchase them until February 2021. She
alleges that she saw the front-label protein claims regarding the
specific number of grams of protein per serving and relied upon
them in deciding to purchase the Products.
Ms. Brown asserts that the Products' front-label statements
regarding the protein content (e.g. "10g PLANT-BASED protein") are
misleading because the Products contain low quality proteins, which
reduce the amount of digestible or usable protein that the Products
deliver to the human body. Certain types of protein (such as those
from animal sources) contain all of the essential amino acids and
are able to be fully digested and used by the human body. The
primary protein sources for the Products, on the other hand, are
wheat and oats, which do not contain all of the essential amino
acids and are thus not able to be fully digested by the human body.
Protein from wheat and oats typically have a PDCAAS in the range of
.4 and .5, meaning that only 40-50% of the plant protein consumed
will be digested and used by the human body.
Ms. Brown challenges two aspects of the Products' front-label
protein statements. First, she argues that the front-label is
inherently misleading because it prominently advertises a specific
amount of protein per serving without adjusting for protein
digestibility. Second, she argues that the front label is unlawful
because the Products fail to include the "percent daily value"
figure that FDA regulations require in the Nutrition Facts panel on
the back of the package.
Based on these facts, Brown filed suit against Sara Lee on behalf
of herself and other similarly situated consumers in the United
States and brought the following five causes of action: (i)
unlawful, unfair, and fraudulent trade practices in violation of
Business & Professions Code Section 17200 (UCL); (ii) violation of
the Consumers Legal Remedies Act (the CLRA), California Civil Code
Section 1750 et seq.; (iii) false advertising under Business &
Professions Code Section 17500 (FAL); (iv) common law fraud,
deceit, and/or misrepresentation; and (v) unjust enrichment.
II. Discussion
A. Motion to Dismiss
Sara Lee moves to dismiss the Complaint on three primary grounds.
First, it asserts that Brown's claims are expressly preempted by
the FDCA and impliedly preempted under Buckman Co. v. Plaintiffs'
Legal Committee, 531 U.S. 341 (2000). Second, it argues that Brown
lacks standing to sue. Finally, it contends that the Complaint
fails to state a claim under Fed. R. Civ. P. 12(b)(6) and fails to
plead claims grounded in fraud with sufficient particularity under
Fed. R. Civ. P. 9(b).
Judge Orrick states that Brown articulates two separate theories
regarding the allegedly misleading protein claim. First, she
contends that a protein claim unadjusted for digestibility is
inherently misleading, but this legal theory is preempted by the
Food, Drug, and Cosmetic Act (FDCA). Her claims based on this first
theory are dismissed with prejudice. Brown next argues that such a
protein claim is unlawful where the digestibility-adjusted total is
omitted from the Nutrition Facts panel. To the extent that Brown is
arguing that the front-label protein claim is misleading because of
the missing digestibility-adjusted figure in the Nutrition Facts
panel, Judge Orrick holds that Brown lacks standing because she
fails to show that she relied upon the omitted information. That
claim is dismissed with leave to amend.
During the hearing, the counsel for Brown advanced a third theory
that the front-label protein claim is unlawful because it violates
21 C.F.R. Section 101.13(n). While at a first glance this argument
appears plausible, Judge Orrick does not discuss it in his Order.
He reserves consideration of it until the parties have had an
opportunity to address it in subsequent briefing. Brown should
include allegations related to this theory in her amended complaint
if appropriate.
B. Motion to Stay
Sara Lee seeks to stay all proceedings in the present case pending
the Ninth Circuit's resolution of Chong v. Kind LLC, No.
21-cv-04528-RS, 2022 WL 464149, at *3 (N.D. Cal. Feb. 15, 2022) (,
a similar case that challenged the food labeling practices of Kind
LLC, where the district court dismissed all claims. Sara Lee argues
that Brown will not be prejudiced, both parties will suffer
hardship and inequity if required to proceed before Chong is
decided, and Chong and the instant case "turn on substantially
similar issues." Brown opposes the stay, pointing out that the
Chong appeal was filed "barely over one month ago" and that "the
median time from notice of appeal to decision in the Ninth Circuit
is just shy of three years.
Judge Orrick holds that the case does not present the "rare
circumstances" where a stay based on an appeal in a separate case
is warranted. Brown is correct that a party seeking injunctive
relief in response to ongoing harm is more likely to be harmed by a
stay. Because Brown identified prejudice that would result from a
stay, Sara Lee was required to "make out a clear case of hardship
or inequity in being required to go forward." Sara Lee has not met
this burden because "being required to defend a suit, without more,
does not constitute a clear case of hardship or inequity." And
while the Ninth Circuit's decision in Chong may ultimately change
hi express and implied preemption analyses in the case, Judge
Orrick finds that the possible gain in judicial efficiency is
outweighed by the prejudice to Brown.
In consideration of the case law and the competing interests at
issue, Judge Orrick finds that his discretion is best exercised to
deny Sara Lee's request for a stay at this time.
III. Conclusion
For the foregoing reasons, Sara Lee's motion to dismiss is granted
because Judge Orrick agrees that Brown's first theory is expressly
preempted by the FDCA and she has not demonstrated the requisite
reliance for her second theory. He denied the motion to stay.
Ms. Brown's claims are preempted to the extent that she argues that
the front-label protein claim is inherently misleading because it
is not adjusted for digestibility. Any claims based upon this
theory are dismissed without leave to amend.
Ms. Brown's claims are not preempted to the extent that she argues
the front-label protein claim is misleading because of the omitted
digestibility-adjusted protein figure in the Nutrition Facts panel.
Her claims for violation of the UCL, violation of the CLRA, false
advertising, common law fraud, and unjust enrichment that are
premised on this second theory are dismissed with leave to amend.
Ms. Brown is also granted leave to plead a theory of unlawfulness
based on Sara Lee's alleged violation of 21 C.F.R. Section
101.13(n). Brown will amend her complaint within 30 days of the
filing of the Order.
A full-text copy of the Court's May 10, 2022 Order is available at
https://tinyurl.com/2p8cy99r from Leagle.com.
VTECH HEALTHCARE: Faces Wheeler FLSA Suit in E.D. Virginia
----------------------------------------------------------
SHAVADA WHEELER, individually and on behalf of all others similarly
situated, Plaintiff v. VTECH HEALTHCARE, INC., Defendant, Case No.
1:22-cv-00561 (E.D. Va., May 17, 2022) is a class action against
the Defendant for violation of the Fair Labor Standards Act.
vTech Healthcare, Inc. is a healthcare staffing solution company
based in Virginia. [BN]
The Plaintiff is represented by:
Zev H. Antell, Esq.
BUTLER CURWOOD, PLC
104 Virginia Street, Suite 302
Richmond, VA 23219
Telephone: (804) 648-4848
E-mail: zev@butlercurwood.com
WALMART INC: Parties in Powell Seek to Amend Briefing Dates
-----------------------------------------------------------
In the class action lawsuit captioned as DEARL POWELL, CHRISTINA
GAST and ELIJHA GONZALEZ, as individuals and on behalf of all
others similarly situated, v. WALMART INC., a Delaware corporation;
WAL-MART ASSOCIATES, INC., a Delaware corporation; WAL-MART STORES,
INC., a Delaware corporation; and DOES 1 through 50, inclusive,
Case No. 3:20-cv-02412-JLS-MSB (S.D. Cal.), the Parties asks the
Court to enter an order amending the briefing and hearing dates as
follows:
1. Plaintiffs' Motion for Class Certification:
-- Deadline for Defendants to file opposition from May 19,
2022, to July 21, 2022;
-- Deadline for Plaintiffs to file reply from May 26,
2022, to July 28, 2022; and
-- The hearing on Plaintiffs' Motion for Class
Certification from 1:30 p.m. on June 23, 2022, to 1:30
p.m. on August 11, 2022;
2. Defendants' Motion for Judgment on the Pleadings:
-- Deadline for Plaintiffs to file opposition from May 5,
2022, to July 21, 2022;
-- Deadline for Defendants to file reply from May 12,
2022, to July 28, 2022; and
-- The hearing on Defendants' Motion for Judgment on the
Pleadings continued from 1:30 p.m. on May 19, 2022, to
1:30 p.m. on August 11, 2022.
Walmart is an American multinational retail corporation that
operates a chain of hypermarkets, discount department stores, and
grocery stores from the United States, headquartered in
Bentonville, Arkansas.
A copy of the Parties' motion dated May 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3sMwYrT at no extra charge.[CC]
The Plaintiffs are represented by:
Larry W. Lee, Esq.
Mai Tulyathan, Esq.
DIVERSITY LAW GROUP, P.C.
515 S. Figueroa St., Suite 1250
Los Angeles, CA 90071
Telephone: (213) 488-6555
Facsimile: (213) 488-6554
E-mail: lwlee@diversitylaw.com
ktulyathan@diversitylaw.com
- and -
B. James Fitzpatrick, Esq.
Laura Franklin, Esq.
FITZPATRICK & SWANSTON
555 S. Main Street
Salinas, CA 93901
Telephone: (831) 755-1311
Facsimile: (831) 755-1319
E-mail: bjfitzpatrick@fandslegal.com
lfranklin@fandslegal.com
- and -
Dennis S. Hyun, Esq.
HYUN LEGAL, APC
515 S. Figueroa St., Suite 1250
Los Angeles, CA 90071
Telephone: (213) 488-6555
Facsimile: (213) 488-6554
E-mail: dhyun@hyunlegal.com
The Defendants are represented by:
Paloma P. Peracchio, Esq.
Mitchell A. Wrosch, Esq.
OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.
400 South Hope Street, Suite 1200
Los Angeles, CA 90071
Telephone: (213) 239-9800
Facsimile: (213) 239-9045
E-mail: paloma.peracchio@ogletree.com
WAYNE COUNTY, MI: Review of Summary Judgment in Woodall Suit Nixed
------------------------------------------------------------------
In the case, KATRINA WOODALL, KATANA JOHNSTON, KELLY DAVIS, and
LATOYA HEARST, Plaintiffs v. WAYNE COUNTY and OFFICER TERI GRAHAM,
Defendants, Case No. 17-13707 (E.D. Mich.), Judge Laurie J.
Michelson of the U.S. District Court for the Eastern District of
Michigan, Southern Division, denied the Defendants' motion to
reconsider the Court's denial of their motion for summary judgment
against all four of Plaintiffs' Monell claims against Wayne
County.
I. Background
Four women -- Katrina Woodall, Katana Johnston, Kelly Davis, and
Latoya Hearst -- were incarcerated at the Wayne County Jail at
various points in 2013 and 2014. They say they were strip-searched
by Jail officers in humiliating ways.
Specifically, they say that Officer Teri Graham, who works the
Jail's registry, strip-searched them in groups of five or more,
made derogatory comments about their bodies, allowed men to see
them being strip-searched, and maintained an unsanitary
environment. And because many women -- at least 99 -- claim they
were subject to similar strip searches, the Plaintiffs accuse Wayne
County, the municipality in charge of the Jail, of ignoring a
pattern of constitutional violations and failing to train its
officers or otherwise address the issue, allowing the violations to
continue.
The Court recently considered the Defendants' motions for summary
judgment against each Plaintiff, and denied them in part.
Specifically, it found that the following claims may proceed: (1)
Hearst's claim against Graham for searches that occurred in January
2014 and (2) all four Plaintiffs' Monell claims against Wayne
County for injuries sustained in 2013 based on
custom-of-acquiescence or failure-to-train theories.
The Defendants (specifically the County) ask the Court to
reconsider its decision on the Monell claims. In the alternative,
the County asks the Court to re-open discovery so it can conduct
additional depositions.
II. Discussion
A. Request for Reconsideration
As an initial matter, it is unclear whether the County's motion
fits into any of these buckets for a proper motion for
reconsideration. The County cites no intervening change in law or
new facts that it could not have discovered before the Court issued
its decision. Instead, the County's motion argues that the
declarations from women who were formerly detained at Wayne County
Jail -- which were attached to the Plaintiffs' prior motion for
class certification and referenced in Plaintiffs' summary judgment
response -- cannot create an issue of fact for each Plaintiff's
Monell claim. In doing so, the County either repeats arguments made
in its summary judgment motions or raises new arguments that were
not presented in its first motions.
But a motion for reconsideration is not a vehicle for presenting
the Court with arguments that should have been made in an original
motion. Nor should it be used to express mere disagreement with the
Court's decision absent a mistake in fact or law based on what was
already presented to the Court. Accordingly, any argument already
addressed in the Court's opinion on summary judgment will not be
discussed again.
Nevertheless, Judge Michelson addresses the County's new legal
arguments on their merits. However, he does not consider evidence
attached to the motion for reconsideration as these facts could
have been presented to the Court in the County's initial motions
but were not.
1. Use of Generic Proof
The County argues that the "law of the case" is that municipal
liability may not be established by "mass" or "generic" proof. In
support of this argument, the County cites the Sixth Circuit's
decision denying class certification in the present case -- Woodall
v. Wayne Cnty., No. 20-1705, 2021 WL 5298537, at *7-8 (6th Cir.
Nov. 15, 2021). There, the Sixth Circuit states that "it is not
enough to show generically that the County had a policy of acting
with deliberate indifference toward the four types of
unconstitutional strip searches (which were allegedly conducted in
violation of its formal policies). Rather, a class member must also
show that the class member was herself subjected to a
constitutional deprivation in the way that she was searched."
Judge Michelson opines that the County is wrong about the "law of
the case." The Sixth Circuit's opinion was about whether the
Plaintiffs' claims could be litigated as class claims under Federal
Rule of Civil Procedure 23. The Sixth Circuit has not expressed any
opinion on the merits of the individual plaintiffs' claims.
To the extent the County attempts to use the Sixth Circuit's
class-action ruling to challenge the Plaintiffs' ability to show
causation, Judge Michelson will not consider this argument because
it was not raised at summary judgment. She also notes that the
Sixth Circuit's statement that the "causation question would have
to be decided on an individual basis," does not mean that the
Plaintiffs cannot use the same declarations to establish a pattern
of constitutional violations and that indifference to this pattern
is what resulted in each of their individual constitutional
injuries.
Contrary to the County's assertion, nowhere did the Sixth Circuit
state that the "inmate statements, taken together, are not
competent proof of a municipal liability claim." The Sixth Circuit
merely stated that causation would have to be proven for each
individual class member, meaning that individual issues would
predominate over class issues making the claims inappropriate for
class adjudication. Thus, the Plaintiffs will be required to prove
at trial that each of their individual strip searches was caused by
the County's indifference. But this requirement has no bearing on
whether the Court's opinion on summary judgment was correct,
especially when causation was not raised in the initial motions.
2. Declarations Under 28 U.S.C Section 1746
The County also argues that the declarations are not "legitimate"
under 28 U.S.C. Section 1746(2). The statute states that for a
declaration to be used as evidence, it must state "in substantially
the following form" that "I declare (or certify, verify, or state)
under penalty of perjury that the foregoing is true and correct.
Executed on (date). (Signature)."
As with other grounds for reconsideration, the County did not
present this argument in its motions for summary judgment or in its
replies to the motions, though the Plaintiffs cited to many of the
declarations in their response. Further, the Court has already
accepted many of these declarations as evidence at
summary-judgment. So the Court's decision is not altered by this
argument either.
3. Pattern of Clearly-Established Constitutional Violations
The County's most significant legal argument for reconsideration
relies on a line of Sixth Circuit cases which require the "violated
right be clearly established" when a plaintiff premises its Monell
claim on deliberate indifference "because a municipality cannot
deliberately shirk a constitutional duty unless that duty is
clear."
Judge Michelson holds that the County's assertion that Plaintiffs
cannot establish deliberate indifference to a clear and persistent
pattern of constitutional violations to a jury because they cannot
show that the alleged violations were clearly established does not
merit reconsideration of its motions for summary judgment. The
Plaintiffs have produced evidence that, at least on a few
occasions, the County's asserted penological interest in conducting
group strip searches (i.e., volume) may not have applied. A jury
could credit this evidence and find that the group strip searches
were conducted without justification, which is a clearly
established constitutional violation, and by not acting to remedy
them, the County was deliberately indifferent.
Further, in addition to the Plaintiffs' (except Hearst) own claims,
many declarations allege that women were strip searched in view of
men. The County has not asserted a penological interest in
conducting searches in this way, and instead asserts that strip
searches were not conducted in front of men. It is up to the jury
to decide who to believe. And if it believes the Plaintiffs and
their witnesses, it could also conclude the County was deliberately
indifferent to violations of clearly-established law by allowing
strip searches to be conducted in front of men without
justification.
B. Request to Re-Open Fact Discovery
In the alternative to reconsideration, the Defendants ask the Court
to order the Plaintiffs to identify "the specific witnesses who
would be called to support their individual municipal liability
claims." They also request time to depose these individuals ahead
of trial.
Judge Michelson agrees with the Plaintiffs that the declarations
(and the witnesses who made them) were part of the summary-judgment
record and considered them in the Court's analysis. The Court had
no more information or means to analyze these declarations than the
Defendants.
So the Court will resolve the issue in the following way: When a
trial date is set for the case, it will order the final pretrial
order witness list to be due 90 days before trial. During this
time, the Defendants will have the opportunity to depose any of the
witnesses that they have not already deposed.
Further, the Plaintiffs will identify the witnesses they know they
will call as soon as they determine they will be called, even if
that occurs before they submit a final pretrial order. It is likely
that the Plaintiffs already know several of the declarants they
intend to call at trial and they should be disclosed immediately.
At the very latest, the Plaintiffs will identify the witnesses they
will call at trial in the proposed final pretrial order.
III. Order
Judge Michelson denied the Defendants' motion for reconsideration
for the foregoing reasons and the reasons provided in the opinion
on summary judgment. As for deposing witnesses that made
declarations, she ordered the Plaintiffs to identify the witnesses
they know they will call at trial as soon as they determine they
will be called. The Plaintiffs are also required to provide a final
list of witnesses to be called during trial in the proposed final
pretrial order. This proposed order will be due 90 days before the
start of trial. In those 90 days, the Defendants will have the
opportunity to depose any trial witnesses they have not deposed
already.
A full-text copy of the Court's May 10, 2022 Opinion & Order is
available at https://tinyurl.com/5588pkur from Leagle.com.
WELLS FARGO: Forsburg RICO Suit Moved From W.D. Va. to N.D. Cal.
----------------------------------------------------------------
The case styled GERALD FORSBURG, individually and on behalf of all
others similarly situated v. WELLS FARGO & CO. and WELLS FARGO
BANK, N.A., Case No. 5:20-cv-00046-MFU, was transferred from the
U.S. District Court for the Western District of Virginia to the
U.S. District Court for the Northern District of California on May
16, 2022.
The Clerk of Court for the Northern District of California assigned
Case No. 3:22-cv-02890-SK to the proceeding.
The case arises from the Defendants' alleged fraud, breach of
contract, gross negligence, and violations of the Racketeer
Influenced and Corrupt Organizations Act and the Truth in Lending
Act and Real Estate Settlement Procedures Act by placing their
customers' mortgage loans into unwanted and harmful forbearance
status.
Wells Fargo & Co. is a financial services company headquartered in
San Francisco, California.
Wells Fargo Bank, N.A. is a subsidiary of Wells Fargo & Co.,
headquartered in South Dakota. [BN]
The Plaintiff is represented by:
Malissa L. Giles, Esq.
Tracy Giles, Esq.
GILES & LAMBERT, PC
P.O. Box 2780
Roanoke, VA 24001
Telephone: (540) 981-9000
E-mail: mgiles@gileslambert.com
- and –
Theodore O. Bartholow III, Esq.
Karen L. Kellett, Esq.
O. Max Gardner III, Esq.
KELLETT &BARTHOLOW PLLC
11300 N. Central Expressway, Suite 301
Dallas, TX 75243
Telephone: (214) 696-9000
Facsimile: (214) 696-9001
E-mail: thad@kblawtx.com
kkellett@kblawtx.com
maxgardner@maxgardner.com
- and –
Abelardo Limon, Jr., Esq.
LIMON LAW OFFICE P.C.
890 W. Price Road
Brownsville, TX 78520
Telephone: (956) 544-7770
Facsimile: (956) 544-4949
E-mail: alimon@limonlaw.com
WENDY'S CO: Faces Class Action Over Misleading Burger Ads
---------------------------------------------------------
Cortney Moore, writing for FOXBusiness, reports that Wendy's and
McDonald's are being taken to court over the size of their beef
patties.
The two fast food giants have been named in a 35-page class-action
complaint, which comes 50 days after similar allegations were made
against Burger King.
Attorneys Anthony J. Russo and James C. Kelly sent a copy of the
filing to FOX Business shortly after it was submitted to the United
States District Court For The Eastern District Of New York, on
Tuesday, May 17.
Russo and Kelly are representing Justin Chimienti, a resident of
New York, and "similarly situated individuals" who feel burger ads
from Wendy's and McDonald's are misleading. The complaint demands a
jury trial.
Much like the complaint Russo and Kelly filed against Burger King
on March 28, the complaint against Wendy's and McDonald's cites
various food reviews on YouTube and lifestyle publications that
note inconsistencies in menu item sizes and advertisements as well
as a list of protests made public on social media.
Unlike the Burger King complaint, this filing cites a 2014 video
interview with personal finance news website Money Talks News,
where a food stylist revealed she prefers to undercook burger
patties so it has a fuller appearance. In the video, the stylist
works with "a simple burger purchased from a grocery store,"
according to the narrator, who is also the founder of the news
site.
The stylist has worked with Wendy's and McDonald's, according to
her online portfolio.
FOX Business reached out to the stylist, Wendy's and McDonald's for
comment.
Russo and Kelly's class-action complaint alleges that "meat shrinks
25% when cooked," but Wendy's and McDonald's burger patties appear
"approximately 15-20% larger" in ads compared to what's served to
customers in real life.
The complaint claims Wendy's "materially overstates" the patty size
and topping amount in its Bourbon Bacon Cheeseburger.
It also names 18 other burgers that have "overstated"
representations depicted in advertisements, including the Big Bacon
Cheddar Cheeseburger, the Big Bacon Cheddar Cheeseburger Double,
the Big Bacon Cheddar Cheeseburger Triple, the Bourbon Bacon
Cheeseburger Double, the Bourbon Bacon Cheeseburger Triple, Dave's
Single, Dave's Double, Dave's Triple, the Baconator, the Son of
Baconator, the Big Bacon Classic, the Big Bacon Classic Double, the
Big Bacon Classic Triple, the Bacon Double Stack, the Jr. Bacon
Cheeseburger, the Jr. Cheeseburger Deluxe, the Jr. Cheeseburger and
the Double Stack.
As for McDonald's the complaint claims the fast food chain
"materially overstates the size of the beef patties for nearly
every menu item in its current advertisements."
The McDonald's menu items the complaint names as "overstated"
include the Big Mac, the Quarter Pounder, the McDouble, the
Cheeseburger, the Double Cheeseburger and the Hamburger.
In particular, the complaint said McDonald's Cheeseburger
advertisements show "the beef extending all the way to the edge of
the bun," but customer photos show the real-life patty "comes
nowhere near the edge of the bun."
Kelly told FOX Business that he thinks it's important to protect
consumers from materially false advertisements, so they won't feel
cheated or disappointed.
"There is no good reason why Wendy's and McDonald's should be
allowed to use trickery in their advertising," Kelly wrote in an
email. "We hope that through these class actions, these iconic
companies will recognize the unfairness of their advertising and
make positive changes."
Russo and Kelly's class-action complaint argued that overstated
burger ads are "unfair and financially damaging" to consumers and
fast food competitors.
"Defendants advertise larger portions of food to steer consumers to
their restaurants for their meals and away from competitors that
more fairly advertise the size of their burgers and menu items,
unfairly diverting millions of dollars in sales that would have
gone to competitors," the complaint said.
It goes on to allege that Wendy's and McDonald's customers are
receiving food that's "much lower in value than what is being
promised" and the marketing tactic of overstating burgers in
advertisements is "especially concerning now that inflation, food,
and meat prices are very high and many consumers, especially lower
income consumers, are struggling financially."
Plaintiffs are seeking monetary damages, injunctive relief that
corrects overstated ads and any other relief the court deems
"necessary and appropriate." [GN]
WENDY'S INTERNATIONAL: Chimienti Sues Over Mislabeled Burgers
-------------------------------------------------------------
JUSTIN CHIMIENTI, individually and on behalf of all others
similarly situated, Plaintiff v. WENDY'S INTERNATIONAL, LLC; and
MCDONALD'S CORPORATION, Defendants, Case No. 2:22-cv-02880-HG
(E.D.N.Y., May 17, 2022) is an action against the Defendants for
unfair and deceptive trade practices concerning the sale of certain
falsely advertised menu items.
The Plaintiff alleges in the complaint that the Defendants
advertises its burgers as large burgers compared to competitors and
containing thick and juicy beef patties stuffed with toppings to
make it appear that the burgers are substantially larger in size
than the actual burger served to customers.
The Defendants' promise to consumers of a large portion of food
with their purchase are also causing consumers to come to, or order
from, Defendants' restaurants and make purchases that they would
not have otherwise made. The Defendants are also unfairly competing
with burger restaurants that more fairly advertise the size of
their burgers and menu items.
The Defendants advertise larger portions of food to steer consumers
to their restaurants for their meals and away from competitors that
more fairly advertise the size of their burgers and menu items,
unfairly diverting millions of dollars in sales that would have
gone to competitors, says the suit.
WENDY'S INTERNATIONAL, LLC operates as a restaurant. The Company
offers hamburgers, chicken, wraps, salads, french fries,
non-alcoholic beverages, and desserts. [BN]
The Plaintiff is represented by:
James C. Kelly, Esq.
THE LAW OFFICE OF JAMES C. KELLY
244 5th Avenue, Suite K-278
New York, NY 10001
Telephone: (212) 920-5042
Email: jkelly@jckellylaw.com
- and -
Anthony J. Russo, Jr., P.A., Esq.
d/b/a THE RUSSO FIRM
301 West Atlantic Avenue, Suite 0-2
Delray Beach, FL 33444
Telephone: (844) 847-8300
Email: anthony@therussofirm.com
- and -
Mark Anthony Panzavecchia, Esq.
PANZAVECCHIA & ASSOCIATES, PLLC
1000 Franklin Ave., Suite 204
Garden City, NY 11530
Telephone: (516) 965-2854
Email: mark@panzavecchialaw.com
WHEELER REAL ESTATE: Faces Steamboat Capital Suit in Maryland
-------------------------------------------------------------
Wheeler Real Estate Investment Trust, 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 October 25, 2021, Steamboat Capital Partners Master Fund LP, a
stockholder of the company, and Steamboat Capital Partners II, LP,
a Delaware limited partnership and stockholder of the Company,
filed a putative class action on behalf of holders of the company's
Series B Preferred Stock and Series D Preferred Stock. The case is
captioned "Steamboat Capital Partners Master Fund, LP and Steamboat
Capital Partners II, LP v. Wheeler Real Estate Investment Trust,
Inc.," Circuit Court for Baltimore County, Maryland.
The complaint alleges that the company's rights offering of
convertible debt to the company's common stockholders, and the
notes issued pursuant to the rights offering, breached the
provisions of the company's governing documents and violated the
rights of the holders of the Series B Preferred and Series D
Preferred with respect to accumulated and unpaid dividends.
Plaintiffs seek relief as follows: require the company to pay all
dividends accrued, as of the date of the rights offering, on the
Series B Preferred and Series D Preferred, and prohibit the company
from paying interest on the notes held by the company's common
stockholders (upon exercise of the rights) until all accrued
dividends on the Series B Preferred and Series D Preferred are
paid.
Plaintiffs also seek a declaration that the rights offering by the
company to its common stockholders, which resulted in the issuance
of notes, when accrued Series B Preferred dividends and Series D
Preferred dividends had not been fully paid, breached the
provisions of the company's governing documents. In addition, the
complaint contends that the company's amendment of its charter to
remove the cumulative nature of dividends from the Series B
Preferred cannot be applied retroactively. A trial date is set for
May 2023. The parties have each filed potentially dispositive
motions.
Wheeler Real Estate Investment Trust, Inc. is a Maryland
corporation that serves as the general partner of Wheeler REIT,
L.P. As of March 31, 2022, the trust, through the Operating
Partnership, owned and operated fifty-seven centers and four
undeveloped properties in Virginia, North Carolina, South Carolina,
Georgia, Florida, Alabama, Oklahoma, Tennessee, Kentucky, New
Jersey, Pennsylvania and West Virginia.
WISE MEDICAL: Class of Health Employees Certified in Fortin Suit
----------------------------------------------------------------
In the case, AMANDA FORTIN, on behalf of herself and others
similarly situated Plaintiff v. WISE MEDICAL STAFFING, INC.,
Defendant, Case No. 2:21-cv-1467 (S.D. Ohio), Judge Edmund A.
Sargus, Jr., of the U.S. District Court for the Southern District
of Ohio, Eastern Division, granted the Plaintiff's Motion for
Conditional Class Certification and Court-Supervised Notice to
Potential Opt-In Plaintiffs.
I. Background
Plaintiff Fortin brings the class action against Defendant Wise for
alleged violations of the Fair Labor Standards Act ("FLSA") and
Ohio law. Defendant is a healthcare staffing corporation that
operates in Ohio, Alabama, Arkansas, Georgia, Kentucky,
Mississippi, South Carolina, Tennessee, and West Virginia. The
Plaintiff worked for the Defendant and was paid on an hourly
basis.
According to the Amended Complaint, the Defendant did not pay the
Plaintiff and other employees for all overtime wages because
Defendant automatically applied a 30-minute or 60-minute meal break
deduction even when Plaintiff and other employees were unable to
take a full, uninterrupted meal break. The Plaintiff alleges that
she and other employees often worked through the meal break but
Defendant did not allow them to report the time and receive
compensation. The Defendant's practice, the Plaintiff alleges, has
occurred for at least the past three years.
The Plaintiff filed the action on April 1, 2021 seeking relief
under the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C.
Sections 201, et seq., the Ohio Minimum Fair Wage Standards Act,
O.R.C. Sections 4111.03 and 4111.08 ("the Ohio Wage Act"), and the
Ohio Prompt Pay Act ("OPPA"), O.R.C. Section 4113.15. On Oct. 29,
2021, the Plaintiff filed the instant motion for conditional class
certification. The Defendant filed a response in opposition and the
Plaintiffs filed a reply. The Plaintiff's motion is ripe for
review.
II. Discussion
A. Class Certification
The Plaintiff requests that the Court conditionally certifies the
following class: "All current and former hourly, non-exempt
healthcare employees of Defendant who worked or were scheduled to
work at least forty (40) hours in any workweek and had a meal
deduction taken from their compensable hours worked, beginning
three (3) years prior to the filing date of this Motion and
continuing through the date of the final disposition of this
case."
The Defendant does not oppose the certification of some collective
class, but argues that the Plaintiff's class definition is
overbroad and should be limited to: (1) current or former
non-exempt "staffed" employees of Wise; (2) who worked at one or
more of the same locations as Fortin or any of the putative opt-in
plaintiffs from whom she provides declarations; (3) in excess of 40
hours in one or more workweeks; and (4) had a meal deduction taken
from their compensable hours worked in that same workweek despite
indicating on their daily timesheet that they had worked through
the meal break. Defendant also requests that the Court limit the
notice period to 45 days instead of 90 days.
First, Judge Sargus grants conditional class certification to a
company-wide class and allows notice and discovery to go forward.
The Court may re-visit the issue on class definition upon request
in a motion for decertification.
Next, because the Plaintiff need only show that "her position is
similar, not identical, to the positions held by the putative class
members," and the Plaintiff provides evidence that healthcare
employees in general are subject to this policy, Judge Sargus
declines to limit the definition to only "staffed employees" at
this stage.
In addition, the Defendant requests that the Court limits the class
definition to employees who actually worked 40 hours in a workweek
instead of employees scheduled to work at least 40 hours a week
because only the employees who worked over 40 hours a week are
entitled to overtime. The Plaintiff responds that she is willing to
limit the definition to employees whose "payroll records reflect
that they worked 40 or more hours in any workweek," and remove the
"or scheduled to work" language. The parties therefore
substantively agree and Judge Sargus approves the changed
definition.
Finally, whether the Defendant had lawful polices and applied the
policies lawfully to their employees is an issue of fact. During
the notice stage, the Court generally does not, and will not here,
consider the merits of the claims, resolve factual disputes, or
evaluate credibility.
Thus, the revised class definition is as follows: "All current and
former hourly, non-exempt healthcare employees of Defendant whose
payroll reflects that they worked at least forty (40) hours in any
workweek and had a meal deduction taken from their compensable
hours worked, beginning three (3) years prior to the filing date of
this Motion and continuing through the date of the final
disposition of this case."
B. Notice Period
The Defendant asserts that the notice period should be 45 days
instead of 90 days because recent cases in this Court have approved
periods of 45 days. The Plaintiff replies that a 90-day period is
necessary because there are potential plaintiffs from nine
different states in many different locations and there are mail
delays due to the pandemic. Judge Sargus finds that a 90-day Opt-In
period is warranted because the class spans multiple states and
employment locations.
C. Requirement to Confer as to Contents of the Notice
Finally, the Defendant requests that the Court requires the parties
to collaborate on the form and content of the notice because the
Plaintiff mischaracterizes the meal break deduction policy, and
Defendant objects to the notice period and class definition. The
Plaintiff replies that the Defendant did not lodge a specific
complaint against the notice form and the Court should deny this
request.
It is preferable that the parties agree on the contents of the
notice. Accordingly, Judge Sargus orders the parties to confer on
the notice's characterization of the meal break deduction policy.
The other objections have been decided by the Opinion. The parties
will submit a joint proposed notice form within 14 days of the
Opinion and Order. If the parties are unable to reach an agreement,
each party should submit its proposed notice and plan.
III. Conclusion
For the reasons he stated, Judge Sargus granted the Plaintiff's
Motion for Conditional Class Certification, subject to the
conditions of the Opinion and Order. The parties are ordered to
confer as to the proper form of notice and submit a proposed notice
form within 14 days of the Opinion and Order.
A full-text copy of the Court's May 10, 2022 Opinion & Order is
available at https://tinyurl.com/3h663pdr from Leagle.com.
WOODEY SHOP: Luis Files ADA Suit in S.D. New York
-------------------------------------------------
A class action lawsuit has been filed against Woodey Shop, LLC. The
case is styled as Kevin Yan Luis, individually and on behalf of all
others similarly situated v. Woodey Shop, LLC, Case No.
1:22-cv-04049 (S.D.N.Y., May 17, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Woodey Shop -- https://woodey.com/ -- offers wooden sunglasses made
of quality materials for real wood sunglasses, are hand-crafted and
the finishes are flcf less.[BN]
The Plaintiff is represented by:
Noor Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
YIELDSTREET INC: Motion to Dismiss Securities Class Action Denied
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Shearman & Sterling LLP, in an article for Mondaq, reports that on
May 4, 2022, Judge Victor Marrero of the United States District
Court for the Southern District of New York denied a motion to
dismiss a putative class action alleging, among other things,
violations of Sections 10(b) and 20(a) of the Securities Exchange
Act (the "Exchange Act") and Rule 10b-5 thereunder against an
investment company (the "Company"), its related entities, and its
president and co-founder. Michael Tecku et al. v. YieldStreet Inc.
et al., No. 1:20-cv-07327 (S.D.N.Y May 4, 2022). Plaintiffs alleged
that the Company "misrepresented material facts about the stability
and attractiveness of their investment products in its offering
documents" by making misleading statements or omissions in private
placement memoranda ("PPMs") and series notes supplements ("SNSs").
The Court held that, accepting plaintiffs' allegations as true,
plaintiffs sufficiently alleged securities fraud violations for
certain alleged misstatements and omissions.
According to the amended complaint, the Company is an investment
firm that prescreens investment products and offers them for sale
on its online platform. The Company's portfolio consists mostly of
borrower payment dependent notes ("BDPNs"), which comprise debt
obligations tied to the performance of specific underlying loans
made by a special purpose vehicle ("SPV") formed by the Company in
connection with the debt offering. The SPV raises funds through the
Company's investors and then lends the funds to an undisclosed
borrower. Plaintiffs alleged that the Company's management is
solely responsible for making decisions as to which products to
offer for sale on the Company's investment platform, and the
Company does not offer investors access to underlying data or
risk-assessment analysis. According to plaintiffs, investors
instead rely on the Company's diligence and transparency in
presenting any material information in its offering documents.
Plaintiffs—individual investors in the Company's
products—alleged that the Company made false statements in its
April 2018 and January 2019 PPMs, including by representing to
investors that "none of the investments offered on [the Company's]
online platform had ever lost any principal." Plaintiffs also
alleged that from December 2018 through September 2019, they were
induced to make volatile investments in marine vessel
deconstruction transactions, which plaintiffs claimed were
"particularly volatile" and requir[e]d a "high degree of industry
knowledge to successfully navigate." Plaintiffs alleged that they
would not have made these investments absent false or misleading
statements in the vessel transaction offering documents about the
Company's three-step diligence process, which they did not know had
been subverted in October 2018 when a member of the credit
committee "went rogue" and "abandoned the industry standard model
for loans . . . in favor of much higher-risk short-term loans"
without consulting the multi-party credit committee or the
Company's asset class expert.
The Court first considered the "no principal loss statement," which
plaintiffs alleged was misleading because the president of the
Company had previously acknowledged in a June 2017 email to
investors that the Company's offering for a rideshare fund had gone
into default and that the fund had "outstanding principal." The
Court held that "outstanding principal on a defaulted loan
plausibly constitutes 'principal loss,'" and that plaintiffs had
therefore sufficiently alleged the Company made material
misstatements in its April 2018 and January 2019 PPMs.
The Court further held that plaintiffs sufficiently alleged
material omissions regarding the Company's statements concerning
its due diligence process, finding that "plaintiffs allegations
create a strong inference of a duty to disclose" the intervening
due diligence events from October 2018, which "rendered the
diligence process in the SNS misleading or false." The Court
disagreed, however, with plaintiffs' argument that because the
offering documents disclosed the Company's inexperience in certain
areas, the Company had a duty to disclose all areas in which it
lacked experience, noting that the offering documents did not
provide that the Company was only inexperienced in the listed
areas, and warned against the "undesirable outcome" of encouraging
companies to forgo disclosing any inexperience "to protect against
needing to disclose all."
The Court next held that plaintiffs sufficiently alleged a
reasonable inference of scienter as to the "no principal loss
statement" and the omissions concerning the Company's diligence
process. According to the Court, plaintiffs sufficiently alleged
that defendants knew the "no principal loss statement" was false
when made in 2018 and 2019 based on an email from its president in
2017 about one of the funds being in default. As to the alleged
diligence omissions, the Court held that plaintiffs sufficiently
alleged that defendants knew their statements regarding the
Company's diligence process were rendered misleading after the
October 2018 events materially changed that process, and further
found that by subverting the due diligence process, defendants
realized increased management fees without regard to loan
performance.
The Court rejected defendants' argument that "cautionary
disclosures" in the offering documents prevented plaintiffs from
alleging reasonable reliance and held that stating past investments
are not indicative of future performance does not convey to
investors that past investments may be misrepresented within the
documents. Moreover, the Company's warning that it may use other
investment strategies did not prevent investors from relying on
statements in the December 2018 through September 2019 offering
documents which occurred after the due diligence process was
already subverted in October 2018. The Court agreed that plaintiffs
sufficiently alleged that they reasonably relied on the information
in the offering documents, because investors had no "lens into the
industry" and would not have purchased the Company's investment
products had they been aware of the omitted information.
Turning to plaintiffs' Section 20(a) allegations, the Court held
that plaintiffs satisfied the first element of a control person
claim by sufficiently alleging a predicate violation of Section
10(b), and further held that plaintiffs sufficiently alleged the
remaining elements of a control person claim based on allegations
that the individual defendant was the president and co-founder of
the Company and its subsidiaries and exerted control over those
entities. [GN]
ZENDESK INC: Court Dismisses Anderson Suit Without Prejudice
------------------------------------------------------------
In the case, ANTHONY ANDERSON, Derivatively on Behalf of Nominal
Defendant ZENDESK, INC., Plaintiff v. MIKKEL SVANE, ELENA GOMEZ,
NORMAN GENNARO, MICHELLE WILSON, CARL BASS, HILARIE KOPLOW-MCADAMS,
MICHAEL FRANDSEN, THOMAS SZKUTAK, MICHAEL CURTIS, and CARYN
MAROONEY, Defendants, and ZENDESK, INC., Nominal Defendant, Case
No. 3:20-cv-03671-CRB (N.D. Cal.), Judge Charles R. Breyer of the
U.S. District Court for the Northern District of California, San
Francisco Division, dismissed the Action without prejudice as to
the Plaintiff, Zendesk, and/or any other Zendesk shareholder.
On June 2, 2020, Plaintiff Anderson commenced the Action, asserting
claims derivatively on behalf of Nominal Defendant Zendesk against
Individual Defendants Mikkel Svane, Elena Gomez, Norman Gennaro,
Michelle Wilson, Carl Bass, Hilarie Koplow-McAdams, Michael
Frandsen, Thomas Szkutak, Michael Curtis, and Caryn Marooney.
On July 27, 2020, the Action was designated as related to the
consolidated securities class action captioned Reidinger v.
Zendesk, Inc., et al., Case No. 3:19-cv-06968 (the "Securities
Action").
On March 2, 2021, the Securities Action was dismissed with leave to
amend, and on March 23, 2021, the Court entered a judgment in the
Securities Action after the Lead Plaintiff Local 353, I.B.E.W.
Pension Fund (the "Securities Lead Plaintiff") notified the Court
of its decision not to file an amended complaint.
On April 20, 2021, the Securities Lead Plaintiff filed a notice of
appeal of the order granting the Defendants' motion to dismiss the
Securities Action.
On May 6, 2021, the Court granted the Parties' stipulation to stay
the case pending the outcome of the Appeal and directing the
Parties to file a schedule for further proceedings within thirty
days of a final decision in the Appeal.
On March 2, 2022, the U.S. Court of Appeals for the Ninth Circuit
issued a decision affirming the dismissal of the Securities
Action.
After due consideration of the dispositive decisions in the
Securities Action, the Plaintiff wishes to voluntarily dismiss the
Action pursuant to Rules 23.1(c) and 41(a) of the Federal Rules of
Civil Procedure, without prejudice as to the Plaintiff, the Nominal
Defendant, and/or any other Zendesk shareholder
The Parties agree that the dismissal is not, and will not be deemed
to be, an adjudication of the Action on the merits, and that each
Party will bear its own fees and costs incurred in connection with
the Action.
They agree and respectfully submit that notice to shareholders of
the dismissal is unnecessary because: (i) the dismissal is without
prejudice to the ability of any Zendesk shareholder, or Zendesk
itself, to pursue the claims; (ii) there has been no settlement or
compromise of the Action; (iii) there has been no collusion among
the Parties; and (iv) neither the Plaintiff nor his counsel has
received or will receive directly or indirectly any consideration
from the Defendants for the dismissal.
Therefore, the Parties stipulate and agree, subject to the Court's
approval, as follows:
1. The Action will be dismissed without prejudice as to the
Plaintiff, Zendesk, and/or any other Zendesk shareholder.
2. The Parties will bear their own fees and costs in
connection with the Action.
Pursuant to the Parties' stipulation, Judge Breyer so ordered.
A full-text copy of the Court's May 10, 2022 Order is available at
https://tinyurl.com/mr2rmny5 from Leagle.com.
Robert V. Prongay -- RPRONGAY@GLANCYLAW.COM -- Pavithra Rajesh --
PRAJESH@GLANCYLAW.COM -- GLANCY PRONGAY & MURRAY LLP, in Los
Angeles, California, Benjamin I. Sachs-Michaels --
BSACHSMICHAELS@GLANCYLAW.COM -- GLANCY PRONGAY & MURRAY LLP, in New
York City, Attorneys for the Plaintiff.
[*] More Than 200 Crypto Class Action Lawsuits Filed in May 2022
----------------------------------------------------------------
Sam Skolnik, writing for Bloomberg Law, reports that cryptocurrency
litigation is soaring, prompted by a surge of investors in the
space, and US proposals promise more rules to fight over in coming
months and years.
Crypto has generated more than 200 class action lawsuits and other
private litigation as of this month, up more than 50% since the
start of 2020, according to Morrison Cohen, which tracks the
activity. Half of all crypto litigation are class actions or
private suits, according to the firm's data.
"There's been a steady stream of cases from regulators, but what's
really exploded is private litigation," said Jason Gottlieb, chair
of Morrison Cohen's white collar and regulatory enforcement
practice group in New York.
The rise in litigation is encouraging Big Law operations to bolster
their crypto practices. Firms including Jenner & Block, Goodwin
Procter, and Morrison & Foerster in the last few months have added
new crypto partners to their rosters, including former fraud
prosecutors, securities litigators and investment funds lawyers.
The litigation growth comes at a tumultuous time for crypto. A
backer of the collapsed TerraUSD stablecoin lost $3 billion in
cryptocurrency reserves in a failed effort to restore its peg to
the dollar, Bloomberg News reported on May 16. Bitcoin on May 12
hit its lowest level since 2020 and was down 50% from its November
high, according to Bloomberg.
Perkins Coie has so much activity on the crypto front that it holds
weekly team calls, typically including 50 to 70 firm attorneys,
said Joe Cutler, firmwide co-chair of the firm's fintech industry
group. "We have content coming out of our ears," he said.
At Latham & Watkins, more than 700 lawyers worked on crypto or
blockchain issues in 2021 alone, said Yvette Valdez, co-chair of
the firm's global digital assets and Web3 practice.
"The market is exploding, not just at the partner level but at the
associate level too," Valdez said.
The result is a buyer's market for lawyers, as firms see colleagues
leave for general counsel positions at crypto companies, said
Joshua Ashley Klayman, U.S. head of fintech and head of blockchain
and digital assets for Linklaters in New York.
The world's largest cryptocurrency exchange by trading volume,
Binance Holdings Ltd., is looking to hire more than 30 lawyers,
Bloomberg Law reported on May 16. Another cryptocurrency exchange,
Bittrex Global GmbH, hired a Shearman & Sterling senior associate
late last year to be its general counsel.
"There's seemingly a fire hose of work that could, and does, come
in," Klayman said.
Crypto Rules
New US government crypto polices in progress promise even more work
for firms.
US lawmakers, including Pennsylvania's Pat Toomey, top Republican
on the Senate Banking Committee, are proposing legislation. Toomey
last month released a draft proposal to set new rules for
stablecoins, Bloomberg News reported.
Commodity Futures Trading Commission Chairman Ross Behnam said that
federal regulators are considering steps they can take if Congress
fails to act. US Securities and Exchange Commission Chair Gary
Gensler has said he believes most digital assets are subject to his
rules and that he's beefing up enforcement.
Upcoming rules are "going to generate a ton of litigation," said
Mark Califano, a partner with Dentons and an independent director
of the crypto exchange Bitstamp USA Inc.
The Lawsuits
The crypto lawsuits keeping firms busy touch on commercial matters,
employment, and business failures that sometimes involve
bankruptcies.
Celebrities, and even a famed French fashion house, became enmeshed
in private legal actions.
Plaintiffs in early January filed a putative class action against
Kim Kardashian, former boxing champ Floyd Mayweather Jr., and
others in Heugerich v. Gentile. The suit alleges the defendants
made false and misleading statements in social media posts to
investors of the cryptocurrency token EthereumMax.
One week later, Hermes International, the Paris-based maker of
scarves, women's bags and other lifestyle accessories, sued Mason
Rothschild in federal court in Manhattan. The suit alleges
trademark infringement of the company's Birkin bag trademarks.
The defendant allegedly created and sold METABIRKINS NFTs, short
for "non-fungible tokens," or non-replicable, digital collectible
items, in the augmented or virtual-reality "metaverse."
Some of the suits involve initial coin offerings and questions over
whether the bits are really unregistered securities offerings,
Gottlieb said. The SEC is examining creators of NFTs and the
exchanges where they trade to determine if some of the assets run
afoul of agency rules, Bloomberg News reported in March.
Crypto Practices
At most firms, crypto efforts are structured as interdisciplinary
groups that involve partners—and increasingly, associates—from
existing firm practices.
The lawyers working on crypto have specialties such as tax,
banking, mergers and acquisitions, capital markets, data privacy,
and patents and intellectual property.
Their efforts run the gamut from business formations and
dissolutions, to regulatory work and litigation, Klayman said.
Specific matters include everything from writing letters to the SEC
to keeping clients aware of regulations and disputes, she said.
Firms try to make clients aware of how to get on the right side of
regulations before the company is targeted, said Judie Rinearson,
co-chair of the global fintech group at K&L Gates.
"It takes a special lawyer-client relationship to navigate
regulations and laws that are a little gray or unclear," Rinearson
said. "You want to be the good guy in this."
‘High-End Counsel'
Despite the recent downturn in crypto value, firms said they're
optimistic about the future of their practices, with new venture
capital and private equity investments padding crypto companies.
"Money is still pouring into crypto," Cutler said. Despite last
week's drops, "I've yet to get a panic call," he said.
He termed crypto value declines as corrections that need to be put
in perspective. "When people focus on days, weeks, or months, and
not years, it's easy for them to conclude it's wildly volatile,"
Cutler said. "But it's not true."
Andrew Ceresney, co-chair of Debevoise & Plimpton's litigation
department, said his firm sees no shortage of paying crypto
clients.
"In the beginning, there weren't many crypto companies that had the
means to be able to afford us," Ceresney said. "Now, more and more
crypto companies are able to afford high-end legal counsel." [GN]
*********
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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Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2022. All rights reserved. ISSN 1525-2272.
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