/raid1/www/Hosts/bankrupt/CAR_Public/220613.mbx
C L A S S A C T I O N R E P O R T E R
Monday, June 13, 2022, Vol. 24, No. 111
Headlines
121 INFLIGHT: Rosas FEHA Suit Removed to C.D. California
7-ELEVEN INC: Ali FDUTPA Suit Moved From S.D. Fla. to N.D. Cal.
ADELPHIA THREE: Hall Seeks to Certify Class of Servers/Bartenders
ADVOCATE AURORA: Debt Collector Tried to Collect Charged Off Debts
AETNA LIFE: Motion for Leave to File Reconsideration Bid Denied
AGRANA FRUIT: Wins Bid to Withdraw Discovery Deadline in Miller
ALLIANZ GLOBAL: Portnoy Law Files Securities Fraud Class Action
AMAZON.COM INC: Faces Breach Class Suit Over Free Delivery Service
ANTHEM COMPANIES: Faces Midkiff Suit Over Nurses' Unpaid OT Wages
ANTHONY VINEYARDS: Settlement Conference Continued to Sept. 26
APACHE CORPORATION: Misclassifies Workers, Cathcart Suit Claims
AT&T MOBILITY: W.D. Washington Dismisses Latimer Class Suit
AURINIA PHARMACEUTICALS: Ortmann Suit Moved From E.D.N.Y. to D. Md.
AVIENT CORP: Underpays Production Workers, Miller Claims
B.L. KANODE: Court Junks Watson's Bid for Default Judgment
BED BATH: Class Action Settlement Approved in Vitiello Complaint
BEYOND MEAT: Faces Suit Over Misleading Substitute Meat Products
BLACKBAUD INC: Case Management Order Entered in Data Breach Suit
BOSWORTH COMPANY: Dickson Seeks to Clarify Collective Definition
BRITISH AIRWAYS: Class Settlement in Ide Suit Wins Prelim. Approval
CARLOS DEL TORO: Filing of Class Status Bid Extended
CELGENE CORP: Order Granting Bid to Amend Securities Suit Affirmed
CHAMPLAIN TOWERS: Building Collapse Suit Reaches $1B Settlement
CHARLES SCHWAB: Corrente Balks at Merger's Anticompetitive Acts
CLOVER HEALTH: Limited Amendment to Initial Case Mngt Order OK'd
COMPASS INC: Sheppard Labor Code Suit Goes to N.D. California
COMPREHENSIVE HEALTHCARE: Extension to File Class Cert Bid Sought
COPALA INC: Fails to Pay Proper Wages, Nebieridze Suit Says
CREDIT SUISSE: Portnoy Law Discloses Securities Class Action
DENTSPLY SIRONA: City of Miami Sues Over Alleged Share Price Drop
DISH ONE: Walker Files Suit Over Unpaid CSRs’ Wages & Overtime
DUTCH AMERICAN: Underpays Forklift Drivers, Amato Suit Claims
EAST TENNESSEE: Exposes Patients' Personal Info, Class Suit Says
ESMAH INVESTMENT: Williams Sues Over Failure to Pay Proper Overtime
FAIRLIFE MILK: $21 Million Class Action Settlement Reached
FIRST HIGH-SCHOOL: Faces Suit Over False Registration Statement
FLOWERS FOODS: Bid to Compel Arbitration in Ludlow Suit Denied
FREEDOM FINANCIAL: Scheduling Order Entered in Berman Class Suit
FRITO-LAY NORTH: Parrish Suit Moved From E.D. Texas to S.D.N.Y.
GEICO INDEMNITY: Seeks Reconsideration of Class Cert. Order
GENWORTH LIFE: Extension of Class Cert. Briefing Deadlines Sought
GLOBAL TRAVEL: Must File Reply Brief by June 10 in Sides Suit
GLOBAL TRAVEL: Seeks Extension of Time to File Class Cert Reply
GODFATHER'S PIZZA: Fails to Pay Proper Wages, Fuelberth Alleges
GOOGLE LLC: Settles Class Action Over Illegal Biometric Collection
HAWAI'I: Recommended $288K Attys.' Fees in E.R.K. v. DOE Rejected
HIBU INC: Cruz Wage-and-Hour Suit Removed to E.D. California
ILLINOIS TOOL: BMW's Bid to Set Aside Judge Locke's Order Tossed
IMMUNOMEDICS INC: Odeh Suit Seeks to Certify Class
INMAR INC: Holmes Seeks to Certify Consumer Class Action
IRONBOUND EXPRESS: Court OK's Revised Class Notice in Luxama Suit
JACK IN THE BOX: Employee's Labor Suit Ongoing in CA Court
JACKSON COUNTY, IL: Aye Ordered to File Amended Complaint v. Jail
JOE D'AMATO: Stay on Expert Discovery Lifted in Hoeffner Suit
JUMPP LOGISTICS: Cervenka Seeks to Certify FLSA Collective
JUUL LABS: Deceives Youth to Use E-Cigarettes, Jamestown Suit Says
JUUL LABS: E-Cigarette Ads Target Youth, Canton Local Suit Claims
JUUL LABS: Faces Steilacoom Suit Over Youth E-Cigarette Crisis
JUUL LABS: Hornell City Suit Alleges Deceptive E-Cigarette Ads
JUUL LABS: Lakewood Sues Over Youth E-Cigarette Addiction in N.Y.
JUUL LABS: Promotes E-Cigarette Use to Youth, West Valley Alleges
JUUL LABS: Triggers E-Cigarette Crisis in N.Y., Maple Shade Claims
KONINKLIJKE PHILIPS: Sterken Suit Moved From E.D. La. to W.D. Pa.
LIGHTWAVE LOGIC: Rosen Law Discloses Securities Class Action
MAGELLAN HEALTH: Court Narrows Claims in Griffey's 2nd Amended Suit
MASTERCARD INC: Small Businesses Can Claim Up to $600 in Settlement
MASTRONARDI PRODUCE: Faces Suit Over Worker Safety Laws Violations
MAZDA MOTOR: Sonneveldt, et al., Seek to Certify Classes
MICROSOFT CORP: Faces Suit Over Biometric Privacy Law Violations
NATIONWIDE MUTUAL: Preliminary Pretrial Order Entered in Sweeney
NEW ORLEANS, LA: Court Answers Certified Question in Lafaye Suit
NOMI HEALTH: Fails to Pay Proper Wages, Eltahir Suit Alleges
OSMOSE UTILITIES: Hodges Seeks FLSA Conditional Certification
PARKER-HANNIFIN: Fails to Secure Customers' Info, Doe Suit Says
PATTERN ENERGY: Briefing Deadlines Extended in Securities Suit
PAYCOM SOFTWARE: Sched Order, Discovery Plan Entered in Rombough
PEACEHEALTH: Class Cert. Bid Filing Extended to March 3, 2023
PEPSICO INC: Mitchell Labor Suit Moved From M.D. Fla. to S.D.N.Y.
PNC BANK: Parties Stipulate Briefing Schedule for Class Cert. Bid
PREMIER PIZZA: Adams Sues Over Failure to Pay Minimum & OT Wages
PSI PIZZA: Wolsieffer Sues Over Drivers' Unreimbursed Expenses
QUEST DIAGNOSTICS: ERISA Class Suit Seeks Class Certification
SAGINAW COUNTY, MI: Order Stopping Contacts With Fox Class Affirmed
SAMSUNG ELECTRONICS: Turns to Arbitration Defense in Class Action
SAND LILY: Faces DeJulius Suit Over Retaliation & Discrimination
SHAMROCK TOWING: Scheduling Order Entered in Allen Class Suit
SHOE CARNIVAL: Hasty et al. Sue Over Unsolicited Phone Calls
SMILEDIRECTCLUB INC: Wins Bid to Compel Arbitration in Navarro Suit
SOCIETY INSURANCE: Denial of Bid to Dismiss Colectivo Suit Reversed
TPC SOUTHWIND: Perkins Must File Conditional Cert by Sept. 16
TWITTER INC: Price Sues Over Undisclosed Use of Personal Info
ULTA SALON: Court Grants in Part Bid to Stay Gonzalez Action
UNIVERSAL HEALTH: Class Certification Order in Boley Suit Affirmed
UNIVERSITY OF SOUTH FLORIDA: Denial of Moore Suit Dismissal Upheld
VITAS HEALTHCARE: N.D. California Remands Reyes Suit to State Court
WALGREEN CO: Faces Naro Suit in Calif. Over Unpaid Wages
*********
121 INFLIGHT: Rosas FEHA Suit Removed to C.D. California
--------------------------------------------------------
The case styled DANIEL ROSAS, individually and on behalf of all
others similarly situated v. 121 INFLIGHT CATERING, LLC, DNATA US
INFLIGHT CATERING, LLC, and DOES 1-50, inclusive, Case No.
22STCV14204, was removed from the Superior Court of the State of
California, County of Los Angeles, to the U.S. District Court for
the Central District of California on June 2, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 2:22-cv-03794 to the proceeding.
The case arises from the Defendants' alleged violations of the
California's Fair Employment and Housing Act, the California's
Labor Code, and the California's Business and Professions Code
including disability discrimination, retaliation, failure to
prevent discrimination and retaliation, failure to accommodate,
failure to engage in a timely good faith interactive process,
wrongful termination, failure to pay overtime, failure to pay
minimum wages, failure to pay timely wages, failure to unlawfully
receive wages, failure to provide meal breaks, failure to provide
rest periods, failure to pay timely wages upon termination, and
unlawful business practices.
121 Inflight Catering, LLC is a provider of airline catering
services, headquartered in New York.
DNATA US Inflight Catering, LLC is a provider of airline catering
services, headquartered in New York. [BN]
The Defendants are represented by:
Shannon B. Nakabayashi, Esq.
Jessica M. Peterson, Esq.
JACKSON LEWIS P.C.
50 California Street, 9th Floor
San Francisco, CA 94111-4615
Telephone: (415) 394-9400
Facsimile: (415) 394-9401
E-mail: Shannon.Nakabayashi@jacksonlewis.com
Jessica.Peterson@jacksonlewis.com
7-ELEVEN INC: Ali FDUTPA Suit Moved From S.D. Fla. to N.D. Cal.
---------------------------------------------------------------
The case styled CRISTIAN ALI, on behalf of himself and all others
similarly situated v. 7-ELEVEN, INC., Case No. 1:22-cv-20328, was
transferred from the U.S. District Court for the Southern District
of Florida to the U.S. District Court for the Northern District of
California on June 2, 2022.
The Clerk of Court for the Northern District of California assigned
Case No. 3:22-cv-03240-WHO to the proceeding.
The case arises from the Defendant's alleged violation of the
Florida's Deceptive and Unfair Trade Practices Act, negligent
misrepresentation, breach of implied warranty of merchantability,
breach of implied warranty of fitness for purpose, breach of
Magnuson Moss Warranty Act, and unjust enrichment by marketing and
selling JUUL E-Cigarettes without warning consumers about the
harmful effects of using the product.
7-Eleven, Inc. is an American company that operates an
international chain of convenience stores, headquartered in Dallas,
Texas. [BN]
The Defendant is represented by:
Joel Oster, Esq.
LAW OFFICES OF HOWARD W. RUBINSTEIN
22052 W. 66th St., #192
Shawnee, KS 66226
Telephone: (913) 206-7575
E-mail: joel@joelosterlaw.com
- and –
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Rd., Ste. 409
Great Neck, NY 11021
Telephone: (516) 268-7080
E-mail: spencer@spencersheehan.com
ADELPHIA THREE: Hall Seeks to Certify Class of Servers/Bartenders
-----------------------------------------------------------------
In the class action lawsuit captioned as MICHELLE HALL, on behalf
of herself, individually and on behalf of all similarly situated
individuals, v. ADELPHIA THREE CORP. d/b/a/ PHILY DINER, PETRO
KONTOS, WILLIAM BALIS, Case No. 1:21-cv-01106-CPO-SAK (D.N.J.), the
Plaintiff asks the Court to enter an order granting class
certification of the following class:
"All current and former individuals who worked as servers
and/or bartenders at Defendant Adelphia Three Corp.'s
restaurant facilities operating under the trade name of Phily
Diner, located at 31 S. Black Horse Pike, Runnemede, New
Jersey 08078 any time between January 25, 2015 and the
present."
A copy of the Court's order dated June 2, 2022 is available from
PacerMonitor.com at https://bit.ly/38YznsW at no extra charge.[CC]
The Plaintiff is represented by:
Charles J. Kocher, Esq.
Matthew A. Luber, Esq.
Tyler J. Burrell, Esq.
McOMBER, McOMBER, & LUBER P.C.
39 E. Main Street
Marlton, NJ 08053
Telephone: (856) 985-9800
Facsimile: (732) 530-8545
E-mail: cjk@njlegal.com
mal@njlegal.com
tjb@njlegal.com
ADVOCATE AURORA: Debt Collector Tried to Collect Charged Off Debts
------------------------------------------------------------------
Jonathan Bilyk at cookcountyrecord.com reports that Advocate Aurora
Health, one of the Chicago area's largest health care providers,
and debt collector LJ Ross Associates, have been accused in a new
class action lawsuit of using improper tactics to collect unpaid
medical bills from Advocate patients, even after the medical debt
had been charged off.
On May 23, attorney Michael Drew, of Neighborhood Legal LLC, of
Chicago, filed suit in Cook County Circuit Court, against Advocate
and LJ Ross.
The lawsuit was filed on behalf of named plaintiff Ashley Vela.
However, the complaint seeks to expand the action to include
potentially many other current and former Advocate patients who may
have similar claims to those leveled by Vela.
According to the complaint, at some point, Vela incurred medical
debt, collectable by Downers Grove-based Advocate Aurora.
The healthcare system operates 26 hospitals, and more than 500
total health care facilities in Illinois Wisconsin. Advocate Aurora
employs more than 75,000 workers, including 10,000 doctors.
The complaint does not state where Vela received health care, nor
the amount of unpaid medical bills she may have owed.
However, Vela's account went into default, and Advocate Aurora
charged off the debt, ultimately assigning it to LJ Ross, of
Jackson, Michigan, for collection.
According to the complaint, LJ Ross then attempted to collect the
debt, by contacting Vela directly, even though the debt collector
allegedly knew Vela was represented by a lawyer.
Further, the complaint asserts Advocate Aurora allowed LJ Ross to
attempt to collect the debt, even after Advocate allegedly sent
Vela a letter stating Advocate "has cancelled the entirety of the
debt."
The complaint asserts the actions of Advocate and LJ Ross,
together, violated federal law governing fair debt collection
practices, and violated the Illinois consumer fraud law.
The plaintiffs claim Advocate's and LJ Ross' "normal business
practices are designed to disregard the law through an agreement to
subvert state and federal consumer protection laws, ignore the
legal rights of indebted Illinois residents, and profit from
wrongful collection actions that allow them to collect debts faster
and more profitably," according to the complaint.
The lawsuit asserts many others likely have stories and claims
similar to Vela's. They asked the court to allow them to turn their
case into a class action. The plaintiffs don't estimate how many
others may be added to the action as additional plaintiffs.
In the complaint, the plaintiffs have asked the court to award them
damages, including statutory damages under federal law, and
unspecified compensatory and punitive damages, allowed under the
Illinois consumer fraud statute, plus attorney fees. [GN]
AETNA LIFE: Motion for Leave to File Reconsideration Bid Denied
---------------------------------------------------------------
In the class action lawsuit captioned as MICHALA KAZDA v. AETNA
LIFE INSURANCE COMPANY, Case No. 3:19-cv-02512-WHO (N.D. Cal.), the
Hon. Judge William H. Orrick entered an order denying motion for
leave to file motion for reconsideration.
Aetna's motion for leave to do so is denied. Alternatively, Aetna
requests that the class definition be revised.
All persons covered under ERISA health plans, self-funded or
fully insured, that are administered by Aetna and whose
claims for liposuction treatment of their lipedema were
denied as cosmetic.
Aetna offers health insurance.
A copy of the Court's order dated June 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3GUMLuu at no extra charge.[CC]
AGRANA FRUIT: Wins Bid to Withdraw Discovery Deadline in Miller
---------------------------------------------------------------
In the class action lawsuit captioned as GARY MILLER, et al., v.
AGRANA FRUIT US, INC., Case No. 1:21-cv-01919-BMB (N.D. Ohio), the
Hon. Judge Bridget Meehan Brennan entered an order granting the
defendant's motion to withdraw discovery deadline.
Agrana Fruit moves this Court to withdraw the currently pending
discovery deadline. Pursuant to the December 9, 2021 Case
Management Conference Minute Sheet, the Court set a "class and
non-expert" discovery deadline of June 1, 2022.
Subsequently, the parties briefed the issue of conditional
certification of a collective action under the Fair Labor Standards
Act, and the case was shortly thereafter reassigned to Judge
Bridget Meehan Brennan.
A status conference was held on March 31, 2022, at which the
parties "advised the Court on the status of this case, including
the mutual decision to conduct depositions after the Court rules on
the pending class certification motion."
Accordingly, Defendant requests that the Court withdraw the
discovery deadline of June 1, 2022 and hold a scheduling conference
shortly after the Court issues its decision regarding conditional
certification in order to establish new dates and deadlines for
this case.
Agrana is doing business in dairy, ice cream, bakery and food
service industries.
A copy of the Court's order dated June 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3zl6O3r at no extra charge.[CC]
ALLIANZ GLOBAL: Portnoy Law Files Securities Fraud Class Action
---------------------------------------------------------------
The Portnoy Law Firm advises Allianz Global Investors U.S. LLC
("AllianzGI" or the "Company") (NASDAQ: APBIX) (NASDAQ: APBPX)
(NASDAQ: APBRX) (NASDAQ: APKIX) (NASDAQ: APKPX) (NASDAQ: APKRX)
(NASDAQ: AZIAX) (NASDAQ: AZICX) (NASDAQ: AZIIX) (NASDAQ: AZIPX)
(NASDAQ: AZIRX) (NASDAQ: AZUAX) (NASDAQ: AZUCX) (NASDAQ: AZUIX)
(NASDAQ: AZUPX) that a class action has been filed on behalf of
investors. AllianzGI investors that lost money on their investment
are encouraged to contact Lesley Portnoy, Esq.
Investors are encouraged to contact attorney Lesley F. Portnoy, by
phone 844-767-8529 or email: lesley@portnoylaw.com, to discuss
their legal rights, or click here to join the case via
www.portnoylaw.com. The Portnoy Law Firm can provide a
complimentary case evaluation and discuss investors' options for
pursuing claims to recover their losses.
The Complaint alleges, inter alia, that AllianzGI committed
securities fraud from 2015 through 2020 through a scheme to defraud
prospective and current Mutual Fund investors by making false and
misleading statements that substantially understated the risks
being taken by the Mutual Funds. Instead of managing the Mutual
Funds as represented, the Complaint alleges that AllianzGI
prioritized returns over risk management in ways that were
fundamentally inconsistent with AllianzGI's representations
concerning the Mutual Funds Principal Investment Strategies.
AllianzGI and its managers engaged in this conduct, the Complaint
alleges, to increase the compensation paid to AllianzGI as
investment manager and to its employees as portfolio managers of
the Mutual Funds. The Complaint also alleges that AllianzGI acted
negligently and breached its fiduciary duties to investors.
Please visit our website to review more information and submit your
transaction information.
The Portnoy Law Firm represents investors in pursuing claims
against caused by corporate wrongdoing. The Firm's founding partner
has recovered over $5.5 billion for aggrieved investors. Attorney
advertising. Prior results do not guarantee similar outcomes. [GN]
AMAZON.COM INC: Faces Breach Class Suit Over Free Delivery Service
------------------------------------------------------------------
Todd Bishop at geekwire.com reports that a proposed class action
lawsuit alleges that Amazon breached its contract with Prime
members last year when it stopped offering free two-hour delivery
on Whole Foods purchases of $35 or more.
The case, filed in U.S. District Court in Seattle, names as
plaintiffs two California residents who say the Whole Foods
delivery benefit was a major motivation for signing up as Prime
members.
Amazon, which acquired the grocery chain for $13.7 billion in
August 2017, started rolling out free Whole Foods grocery delivery
for Prime members in February 2018, before implementing a $9.95
surcharge in September 2021.
The surcharge came after demand for grocery delivery soared during
the pandemic. The economics of grocery delivery are notoriously
difficult, and Amazon has made regular changes in its Amazon Fresh
delivery fees and business models over the years in an attempt to
create a viable business.
"Hundreds of thousands, if not millions, of Amazon Prime members
paid for a membership because they wanted to take advantage of
Prime's free Whole Foods delivery service," the suit alleges. "As a
result of Amazon's unfair business practices, consumers paid $119
for a service that was unfairly terminated."
We've contacted Amazon for comment on the lawsuit.
The suit says Whole Foods delivery customers who ended their Prime
memberships after Amazon instituted the surcharge were unable to
receive full or partial refunds under Amazon's Prime cancellation
policy.
Seeking unspecified financial damages, the complaint alleges
violations of the Washington State Consumer Protection Act, breach
of contract, breach of the duty of good faith and fair dealing, and
unjust enrichment.
Amazon raised the annual price of Prime from $99 to $119 in June
2018 and to $139 in March of this year, citing higher costs and
increased benefits of the subscription for Prime members. [GN]
ANTHEM COMPANIES: Faces Midkiff Suit Over Nurses' Unpaid OT Wages
-----------------------------------------------------------------
The case, WINIFRED MIDKIFF, on behalf of herself and all others
similarly situated, Plaintiff v. THE ANTHEM COMPANIES, INC., ANTHEM
HEALTH PLANS OF VIRGINIA, INC. d/b/a ANTHEM BLUE CROSS AND BLUE
SHIELD, and AMERIGROUP CORPORATION, Defendants, Case No.
3:22-cv-00417 (E.D. Va., June 3, 2022) arises from the Defendants'
alleged violations of the Fair Labor Standards Act.
The Plaintiff has worked for the Defendants as a Medical Management
Nurse II from approximately June 2014 to July 2017.
The Plaintiff asserts that the Defendants treated him and other
similarly situated employees as exempt from overtime laws. Although
they were required by the Defendants to work more than 40 hours per
week, the Defendants denied them of overtime compensation at the
rate of one and one-half times their regular rates of pay for all
hours worked in excess of 40 per workweek. The Defendants also
failed to make, keep, or preserve adequate or accurate records of
the hours worked by the Plaintiff and other similarly situated
employees, says the suit.
The Plaintiff brings this complaint as a collective action against
the Defendant to recover unpaid back wages at the applicable
overtime rates for himself and all other similarly situated
employees. The Plaintiff also seeks all damages, liquidated
damages, pre- and post-judgment interest, attorneys' fees and costs
incurred in prosecuting this action, and other relief as the Court
may deem appropriate and just.
The Corporate Defendants provide healthcare programs and related
services. [BN]
The Plaintiff is represented by:
Harris D. Butler, Esq.
Craig J. Curwood, Esq.
Zev H. Antell, Esq.
BUTLER CURWOOD, PLC
140 Virginia Street, Suite 302
Richmond, VA 23219
Tel: (804) 648-4848
Fax: (804) 237-0413
E-mail: harris@butlercurwood.com
craig@butlercurwood.com
zev@butlercurwood.com
- and –
Rachhana T. Srey, Esq.
Caitlin Opperman, Esq.
NICHOLS KASTER, PLLP
4700 IDS Center, 80 South Eight St.
Minneapolis, MN 55402
Tel: (612) 256-3200
Fax: (612) 338-4878
E-mail: srey@nka.com
copperman@nka.com
ANTHONY VINEYARDS: Settlement Conference Continued to Sept. 26
--------------------------------------------------------------
In the class action lawsuit captioned as Martinez-Sanchez et al v.
Anthony Vineyards, Inc. et al., Case No. 1:19-cv-01404-DAD-BAK
(E.D. Cal.), the Court entered an order that the settlement
conference set for June 14, 2022, is continued to September 26,
2022.
On May 31, 2022, the parties filed a stipulated request to continue
the settlement conference currently set for June 14, 2022 before
Magistrate Judge Stanley A. Boone.
The parties seek to continue the settlement conference to a date in
June 2022 in light of the Court's pending findings and
recommendations partially granting Plaintiffs' motion for class
certification and Defendants' motion to strike PAGA allegations.
Anthony Vineyards Inc is a graphic design company.
A copy of the Court's order dated June 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3x3VeqE at no extra charge.[CC]
APACHE CORPORATION: Misclassifies Workers, Cathcart Suit Claims
---------------------------------------------------------------
ROBERT WAYNE CATHCART JR., individually and on behalf of all others
similarly situated, Plaintiff v. APACHE CORPORATION, Defendant,
Case No. 4:22-cv-01827 (S.D. Tex., June 3, 2022) brings this
complaint as a collective action to recover unpaid overtime wages
and other damages as a result of the Defendant's alleged violations
of the Fair Labor Standards Act.
The Plaintiff was employed by the Defendant as a foreman from
approximately June 2018 to May 2020.
The Plaintiff claims that the Defendant misclassified him and other
similarly situated workers as independent contractors. Despite
working more than 40 hours per week, the Defendant did not pay him
and others similarly situated workers their lawfully earned
overtime compensation at the rate of one and one-half times their
regular rates of pay for all hours worked in excess of 40 per
workweek. Instead, the Defendant paid them a flat sum for each day
worked regardless of the number of hours that they have worked,
says the suit.
Apache Corporation is a Houston-based oil and gas company. [BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Taylor Montgomery, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Tel: (713) 352-1100
Fax: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
tmontgomery@mybackwages.com
- and –
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
11 Greenway Plaza, Suite 3025
Houston, TX 77046
Tel: (713) 877-8788
Fax: (713) 877-8065
E-mail: rburch@brucknerburch.com
AT&T MOBILITY: W.D. Washington Dismisses Latimer Class Suit
-----------------------------------------------------------
In the case, DANIELLE LATIMER, Plaintiff v. AT&T MOBILITY LLC, et
al., Defendant, Case No. 2:21-cv-00856-TL (W.D. Wash.), Judge Tana
Lin of the U.S. District Court for the Western District of
Washington, Seattle, grants the Motion of Defendants AT&T Mobility
and DirecTV, LLC, to Dismiss for Lack of Subject Matter
Jurisdiction.
Having reviewed the relevant record and briefing on this motion and
having heard the Parties' oral arguments, the Court grants the
Defendants' motion, dismisses without prejudice the Plaintiffs'
request for injunctive relief under the Washington Consumer
Protection Act ("CPA") in their first cause of action, and remands
the Plaintiffs' second cause of action under Washington's
Commercial Electronic Mail Act ("CEMA") back to Snohomish County
Superior Court (case number 21-2-02029-31).
I. Background
On May 3, 2021, named Plaintiff Danielle Latimer filed the
class-action lawsuit in Snohomish County Superior Court (case
number 21-2-02029-31) on behalf of herself, as a private attorney
general, and on behalf of all other similarly situated Washington
state residents. Ms. Latimer asserts that she received an allegedly
deceptive email communication in July 2018 that included a false
and misleading subject line. Upon information and belief, Ms.
Latimer further alleges that the Defendants transmitted comparable
emails to other similarly situated Washington residents.
The Complaint asserts two causes of action against AT&T Mobility,
DirecTV, LLC, AT&T Inc., and unnamed individual Defendants Does
1-20. In the first cause of action under the CPA, the Plaintiffs
seek statutory damages, other monetary relief, and prospective
injunctive relief available to a "plaintiff who successfully pleads
and proves a CEMA violation as a per se violation of the CPA." The
second cause of action, a stand-alone CEMA claim, allows for only
injunctive relief. Ms. Latimer claims the deceptive emails violated
both the CPA, as well as CEMA, which itself represents a per se CPA
violation.
On June 25, 2021, the Defendants removed the case to the U.S.
District Court for the Western District of Washington in Seattle
based on diversity jurisdiction under the Class Action Fairness Act
("CAFA") and the class-wide statutory damages available under CEMA
through the CPA. They removed the case to federal court pursuant to
28 U.S.C. Section 1441. Removal was proper in the case because Ms.
Latimer could have asserted original jurisdiction in federal court
for the CPA class-action suit under CAFA.
CAFA jurisdiction requires minimum diversity and an aggregate
amount in controversy of at least $5 million, exclusive of interest
and costs. The Parties do not dispute that the case was properly
removed under CAFA. On July 14, 2021, by stipulation of the
Parties, AT&T Inc. was voluntarily dismissed from the action.
The Defendants then filed the instant motion on July 26, 2021. They
argue that Ms. Latimer lacks Article III standing to seek
prospective injunctive relief because she cannot establish imminent
injury. Without conceding liability, the Defendants aver that the
email Ms. Latimer received was part of a limited email marketing
campaign that ended in 2018, and they have not since sent, nor do
they intend to initiate, any similar email marketing campaigns in
the future. The Defendants therefore request dismissal of all
claims for prospective injunctive relief for lack of subject matter
jurisdiction.
In response, the Plaintiff essentially concedes lack of standing to
seek injunctive relief based on the state of federal caselaw on
imminent injury, agrees that the Court must dismiss without
prejudice the request for injunctive relief in the first cause of
action, but asks the Court to remand the stand-alone CEMA claim
back to state court rather than dismissing that cause of action. In
reply, the Defendants argue that such a partial remand would be
inappropriate and request instead that the Court simply dismiss all
claims for injunctive relief without prejudice, which would allow
Plaintiff to re-file any still viable injunctive claims in state
court.
Before the Court ruled on the Defendants' motion, the case was
reassigned to Judge Lin on Dec. 13, 2021. On March 8, 2022, Judge
Lin ordered additional briefing regarding the Court's authority to
partially remand a state law cause of action in a case for which it
retains original jurisdiction over part of the claims under CAFA.
The Parties submitted their additional briefing as requested.
The Plaintiffs point to cases involving similar circumstances,
although not directly analogous, that indicate such a partial
remand would be appropriate under circumstances such as these. The
Defendants argue that as a question of first impression, it comes
down to statutory interpretation, and that partial remand is
precluded because it is not expressly authorized under the federal
removal and remand statutes.
Upon review of the additional briefing, the Court requested oral
argument to address the Court's authority to decline jurisdiction
under the supplemental jurisdiction statue and to clarify the
Parties' respective positions on how they might be prejudiced by
the other Parties' requested disposition of the stand-alone CEMA
claim. Oral arguments were heard on May 16, 2022.
II. Discussion
The Defendants challenge the Court's subject matter jurisdiction
over certain aspects of the Plaintiffs' case.
A. Subject Matter Jurisdiction for Plaintiff's First Cause of
Action: CEMA Violation as a Per Se CPA Violation with Claims for
Monetary and Injunctive Relief
The Court has original jurisdiction to hear the Plaintiffs' first
cause of action under CAFA. The Parties agree that Ms. Latimer has
Article III standing to seek statutory damages and other
non-injunctive relief for a CEMA violation raised as a per se
violation of the CPA under this cause of action. However, the
Defendants move to dismiss the request for injunctive relief for
the Plaintiffs' first cause of action because the Court lacks
subject matter jurisdiction to provide the requested injunctive
relief. The Plaintiffs agree that Ms. Latimer lacks standing in
federal court to seek the requested injunctive relief in the first
cause of action.
Upon review of the Parties' arguments and the relevant case law,
Judge Lin agrees that Article III standing to seek prospective
injunctive relief as to any claims arising under the Plaintiffs'
first cause of action is lacking. Therefore, the Plaintiffs lack
standing to proceed with their claims for injunctive relief.
The Parties agree that the Plaintiffs' lack of standing with regard
to the claim for injunctive relief for the first count should
result in a dismissal of that part of the claim without prejudice.
Therefore, Judge Lin dismisses without prejudice the Plaintiffs'
claims for injunctive relief as to the first cause of action.
B. Subject Matter Jurisdiction for Plaintiffs' Second Cause of
Action: Stand-Alone CEMA Claim for Injunctive Relief
The Defendants argue that the Court does not have subject matter
jurisdiction over the stand-alone CEMA claim (which only allows for
prospective injunctive relief) because the Plaintiffs lack standing
in federal court. As with the first cause of action, the Plaintiffs
do not contest imminence as currently defined under federal case
law. The major point of contention with respect to the second cause
of action is whether the count should be dismissed without
prejudice or remanded to the state court.
Under the facts of the case and pursuant to the suggestion in
Platt, Judge Lin declines to exercise supplemental jurisdiction
over Plaintiffs' stand-alone CEMA claim pursuant to Section
1367(c)(1) and (4). She finds that unresolved state law issues
regarding the stand-alone CEMA claim justify declining supplemental
jurisdiction under 28 U.S.C. Section 1367(c)(1). The case also
presents sufficient reasons for the Court to exercise its
discretion to decline supplemental jurisdiction under 28 U.S.C.
Section 1367(c)(4). On balance, Judge Lin finds that declining
supplemental jurisdiction best serves the interests of economy,
convenience, fairness, and comity.
C. Article III Standing for Second Cause of Action
In addition to the reasons stated in the previous section, Judge
Lin need not, and indeed should not, address whether the Plaintiffs
have standing to assert the claim in federal court since she
chooses, in her discretion, not to exercise supplemental
jurisdiction over the Plaintiffs' pendant stand-alone CEMA claim.
III. Conclusion
For the reasons she stated, Judge Lin grants the Defendants'
motion, dismisses without prejudice all claims for injunctive
relief in the Plaintiffs' first cause of action, and remands the
stand-alone CEMA claim in the Plaintiffs' second cause of action
back to Snohomish County Superior Court (case number
21-2-02029-31).
A full-text copy of the Court's June 1, 2022 Order is available at
https://tinyurl.com/4wkedd47 from Leagle.com.
AURINIA PHARMACEUTICALS: Ortmann Suit Moved From E.D.N.Y. to D. Md.
-------------------------------------------------------------------
The case styled MICHAEL J. ORTMANN, individually and on behalf of
all others similarly situated v. AURINIA PHARMACEUTICALS INC.,
PETER GREENLEAF, and JOSEPH MILLER, Case No. 1:22-cv-02185, was
transferred from the U.S. District Court for the Eastern District
of New York to the U.S. District Court for the District of Maryland
on June 2, 2022.
The Clerk of Court for the District of Maryland assigned Case No.
8:22-cv-01335-GJH to the proceeding.
The case arises from the Defendants' alleged violations of Sections
10(b) and 20(a) of the Securities Exchange Act of 1934 by releasing
materially false and misleading statements with the U.S. Securities
and Exchange Commission (SEC) regarding Aurinia Pharmaceuticals,
Inc.'s business, operations, and compliance policies in order to
trade Aurinia securities at artificially inflated prices between
May 7, 2021 and February 25, 2022.
Aurinia Pharmaceuticals, Inc. is a biopharmaceutical company, with
principal executive offices located in British Columbia, Canada.
[BN]
The Plaintiff is represented by:
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
Thomas H. Przybylowski, Esq.
POMERANTZ LLP
600 Third Avenue
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
E-mail: jalieberman@pomlaw.com
ahood@pomlaw.com
tprzybylowski@pomlaw.com
AVIENT CORP: Underpays Production Workers, Miller Claims
--------------------------------------------------------
ADAM MILLER, on behalf of himself and all others similarly
situated, Plaintiff v. AVIENT CORPORATION, Defendant, Case No.
1:22-cv-00930 (N.D. Ohio, June 2, 2022) is a collective and class
action complaint brought against the Defendant to challenge its pay
policies and practices that violated the Fair Labor Standards Act.
The Plaintiff was employed by the Defendant as a non-exempt
hourly-paid machine operator from approximately January 25, 2018
until approximately January 25, 2021.
According to the complaint, the Defendant failed to compensate the
Plaintiff and other similarly situated production workers for the
they spent on pre-shift duties, and rest breaks. The Defendant also
auto-deducts 30 minutes for unpaid lunch time although they are
engaging in compensable work that takes approximately 15 minutes
during an unpaid 30-minute lunch break. Despite regularly working
more than 40 hours per workweek, the Defendant did not paid them
overtime compensation for all of the hours they worked over 40 each
workweek, says the suit.
Avient Corporation manufactures international plastics. [BN]
The Plaintiff is represented by:
Robi J. Baishnab, Esq.
NILGES DRAHER LLC
1360 E. 9th St., Suite 808
Cleveland, OH 441214
Tel: (216) 230-2955
Fax: (330) 754-1430
E-mail: rbasihnab@ohlaborlaw.com
- and –
Hans A. Nilges, Esq.
Shannon M. Draher, Esq.
7034 Braucher St. NW, Suite B
North Canton, OH 44720
Tel: (330) 470-4428
Fax: (330) 754-1430
E-mail: hans@ohlaborlaw.com
B.L. KANODE: Court Junks Watson's Bid for Default Judgment
----------------------------------------------------------
In the class action lawsuit captioned as KEVIN A. WATSON, v. B.L.
KANODE, et al., Case No. 7:21-cv-00119-TTC-RSB (W.D.W.Va.), the
Hon. Judge Thomas T. Cullen entered an order denying Watson's
motion for default judgment and his request for entry of default.
The Court said, "In sum, Haynes has responded to Watson's claims at
every turn, and she is not in default. Even if Haynes were in
default, the court can enter a default judgment only if the
allegations in the complaint are sufficient to establish liability.
Here, the claim on which Watson seeks default judgment is a "class
action" claim. As the court noted in a prior order denying Watson's
request for class certification, a pro se plaintiff may not
represent other prisoners."
Mr. Watson alleges that Haynes is in default because her timely
Answer to the second amended complaint only addresses Claim Two,
and does not provide an answer to Claim One of Watson's complaint,
which is titled "Class Action Claim." Haynes has filed a response
in opposition to the motion.
A copy of the Court's order dated June 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3Q7lCZs at no extra charge.[CC]
BED BATH: Class Action Settlement Approved in Vitiello Complaint
----------------------------------------------------------------
In the class action lawsuit captioned as VITIELLO et al v. BED BATH
& BEYOND INC., et al., Case No. 2:20-cv-04240-MCA-MAH (D.N.J.), the
Hon. Judge Michael A. Hammer entered an order approving class
action settlement:
-- Final Class Certification
The Court grants certification of the Class solely for
purposes of the Settlement pursuant to Fed. R. Civ. P.
23(b)(3).
The Class is defined to consist of all persons and entities
who purchased or otherwise acquired BBBY Common Stock
during the period from September 4, 2019 through February
11, 2020, inclusive.
Excluded from the Class are:
a. such persons or entities who submitted valid and timely
requests for exclusion from the Class;
b. such persons or entities who, while represented by
counsel, settled an actual or threatened lawsuit or
other proceeding against one or more of the Releasees
arising out of or related to the Released Class Claims;
and
c. BBBY and (i) all officers and directors of BBBY during
the Class Period (including Mark J. Tritton, Mary A.
Winston, and Robyn M. D’Elia), (ii) BBBY’s Affiliates,
subsidiaries, successors, and predecessors, (iii) any
entity in which BBBY or any individual identified in
subpart (i) has or had during the Class Period a
Controlling Interest, and (iv) for the individuals
identified in subparts (i), (ii), and/or (iii), their
Family Members, legal representatives, heirs,
successors, and assigns.
-- Final Certification of Lead Plaintiff and Appointment of
Lead Counsel for Settlement Purposes
Solely for purposes of the proposed Settlement, the Court
hereby confirms its (i) certification of Lead Plaintiff as
representative of the Class and (ii) appointment of
Bernstein Liebhard LLP as Lead Counsel for the Class
pursuant to Fed. R. Civ. P. 23(g).
-- Final Settlement Approval
The Court finds that the proposed Settlement resulted from
serious, informed, non-collusive negotiations conducted at
arm's length by the Settling Parties and their experienced
counsel -- under the auspices of an experienced mediator --
and was entered into in good faith.
-- Attorneys’ Fees and Expenses Award
Lead Counsel is hereby awarded attorneys' fees in the
amount of 33 1/3% (i.e., $2,331,000) of the Settlement
Fund, which is the $7,000,000 Settlement Amount plus any
interest that has accrued on the Settlement Amount on
deposit in the Escrow Account, and expenses in the amount
of $58,508.86.
Those amounts shall be paid out of the Settlement Fund (as
that term is defined in the Settlement Agreement) pursuant
to the terms set out in Section X of the Settlement
Agreement.
-- PSLRA Award
The Court finds that a PSLRA Award of $5,000 to Lead
Plaintiff is reasonable in the circumstances. This amount
shall be paid out of the Settlement Fund pursuant to the
terms set out in Section XI of the Settlement Agreement.
Bed Bath & Beyond Inc. is an American chain of domestic merchandise
retail stores. The chain operates many stores in the United States,
Canada, Mexico, and Puerto Rico.
A copy of the Court's order dated June 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3xuEQ44 at no extra charge.[CC]
BEYOND MEAT: Faces Suit Over Misleading Substitute Meat Products
----------------------------------------------------------------
Abraham Jewett at topclassactions.com reports that Beyond Meat
misleads consumers about the nutritional benefits and amount of
protein in its substitute meat products, a new class action lawsuit
alleges.
A group of buyers claim Beyond Meat engages in unfair and/or
deceptive business practices by "intentionally misrepresenting the
nature and quality of Beyond Meat Products," according to the
lawsuit.
Beyond Meat not only miscalculates the protein content of its
substitute meat products, but also misleads consumers by falsely
advertising they "provide equivalent nutritional benefits to that
found in traditional meat-based products," the Beyond Meat class
action alleges.
"By advertising protein content on the Beyond Meat Products' front
label, Defendant misleads consumers into believing that they stand
to benefit from the Products' stated protein content," the Beyond
Meat class action states.
The buyers argue Beyond Meat also makes "numerous false and
misleading claims and/or omissions" in its promotions and
marketing, on its website and on product nutrition labels.
In determining the protein content in its products through nitrogen
testing, buyers argue Beyond Meat miscalculates and subsequently
overstate the quality of the protein.
Further, buyers claim regulations set by the Federal Food, Drug,
and Cosmetic Act "implicitly acknowledge that the nitrogen method
is not the most accurate way to describe protein content."
Buyers claim Beyond Meat is guilty of unjust enrichment, among
other things, and is in violation of the Magnuson-Moss Warranty
Act, multiple state consumer fraud acts and the Illinois Consumer
Fraud and Deceptive Business Practices Act.
The buyers want to represent a nationwide class, Illinois subclass
and multistate subclass of consumers who have purchased Beyond Meat
products for personal use.
Plaintiffs demand a jury trial and request declaratory and
injunctive relief along with compensatory, statutory, and punitive
damages for themselves and all class members.
Beyond Meat has previously been the target of a class action
lawsuit.
In 2020, People for the Ethical Treatment of Animals (PETA) filed a
separate class action lawsuit against Beyond Meat, alleging the
company violated the Telephone Consumer Protection Act by sending
unsolicited text messages.
Have you purchased a Beyond Meat product? Let us know in the
comments.
The plaintiffs are represented by Gary M. Klinger, Russell Busch,
Nick Suciu III, Daniel K. Bryson and J. Hunter Bryson of Milberg
Coleman Bryson Phillips Grossman PLLC.
The Class Action Lawsuit is Roberts, et al. v. Beyond Meat Inc.,
Case No. 1:22-cv-02861, in the U.S. District Court for the Northern
District of Illinois. [GN]
BLACKBAUD INC: Case Management Order Entered in Data Breach Suit
----------------------------------------------------------------
In the class action lawsuit captioned as Allen et al v. Blackbaud
Inc., Case No. 3:21-cv-02461-JFA (D.S.C.), the Hon. Judge entered a
case management order as follows:
Event Deadline
-- Plaintiffs provide revised 100 May 23, 2022
customer list:
-- Notice begins to revised 100 June 8, 2022
customer list:
-- Blackbaud begins producing backup June 17, 2022
files in revised 100 customer
list:
-- Mediation: August 2022
-- Discovery cutoff Nov. 8, 2022
-- The Plaintiffs' motion for Dec. 16. 2022
class certification:
-- The Plaintiffs' class Dec. 16. 2022
certification expert disclosure:
-- Blackbaud's opposition to March 17, 2023
class certification:
-- Blackbaud's rebuttal class March 17, 2023
certification expert disclosure:
-- Blackbaud's Daubert motions on March 17, 2023
Plaintiffs' class certification
experts:
-- The Plaintiff's response in April 14, 2023
opposition to Blackbaud's Daubert
motions on:
This order relates to all actions RE: BLACKBAUD, INC., CUSTOMER
DATA BREACH LITIGATION.
Blackbaud is a cloud computing provider that serves the social good
community -- nonprofits, foundations, corporations, education
institutions, healthcare organizations, religious organizations,
and individual change agents.
A copy of the Court's order dated June 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3zptPSX at no extra charge.[CC]
BOSWORTH COMPANY: Dickson Seeks to Clarify Collective Definition
----------------------------------------------------------------
In the class action lawsuit captioned as STEVEN DICKSON, and all
others similarly situated under 29 USC section 216(b), v. THE
BOSWORTH COMPANY, LTD., Case No. 7:22-cv-00010-DC-RCG (W.D. Tex.),
the Plaintiff Dickson files a first supplement to his motion to
proceed as a collective action and to authorize notice to similarly
situated employees, under the Fair Labor Standards Act of 1938
(FLSA).
The Plaintiff seeks to supplement and clarify the definition of the
proposed collective to also include everyone who was paid based
upon billable hours worked as follows:
"All current and former non-exempt employees paid based upon
billable hours worked, including but not limited to
technicians, plumbers, electricians, and helpers (whether
referred to as journeyman, apprentice, or otherwise) employed
by The Bosworth Company, Ltd. within three years (the date of
the Court's order authorizing notice).
Bosworth provides the Permian Basin with air conditioning, heating,
air quality, plumbing and electrical services.
A copy of the Plaintiff's motion dated June 3, 2022 is available
from PacerMonitor.com at https://bit.ly/3NyhCQ2 at no extra
charge.[CC]
The Plaintiff is represented by:
Fernando M. Bustos, Esq.
Matthew N. Zimmerman, Esq.
Brandon C. Callahan, Esq.
BUSTOS LAW FIRM, P.C.
P.O. Box 1980
Lubbock, TX 79408-1980
Telephone: (806) 780-3976
Facsimile: (806) 780-3800 FAX
E-mail: fbustos@bustoslawfirm.com
mzimmerman@butsoslawfirm.com
bcallahan@bustoslawfirm.com
BRITISH AIRWAYS: Class Settlement in Ide Suit Wins Prelim. Approval
-------------------------------------------------------------------
In the case, STEPHEN IDE, et al., on behalf of themselves and all
others similarly situated, Plaintiffs v. BRITISH AIRWAYS, PLC (UK),
Defendant, Case No. 20-cv-03542-JMF (S.D.N.Y.), Judge Jesse M.
Furman of the U.S. District Court for the Southern District of New
York grants the Plaintiffs' Motion for Preliminary Approval of
Class Action Settlement Agreement and Release.
On June 19, 2020, Ide filed a First Amended Class Action Complaint
("FAC") against British Airways ("BA"), along with additional named
Plaintiffs Karen Steele-Clarke, Philip Tenn, and Donald Dominique,
Jr., on behalf of themselves and all others similarly situated,
alleging that BA breached its Conditions of Carriage with its
passengers when it failed to provide refunds for flights cancelled
by BA in the wake of COVID-19.
The Plaintiffs and BA entered into a Settlement Agreement on May
20, 2022, which is attached as Exhibit 1 to the Memorandum in
Support of Plaintiffs' Motion for Preliminary Approval, filed on
May 20, 2022, and sets forth the terms and conditions of the
Settlement and the dismissal of the Litigation against BA with
prejudice.
The Plaintiffs have moved the Court for an Order preliminarily
approving the proposed Settlement pursuant to Federal Rule of Civil
Procedure 23 and approving notice to the Settlement Class. BA does
not contest certification of the Settlement Class solely for
purposes of the Settlement but retains its objections to the
Litigation proceeding as a litigation class.
Judge Furman is familiar with and has reviewed the record and has
reviewed the Settlement Agreement and its exhibits, the Plaintiffs'
Memorandum of Law in Support of Motion for Preliminary Approval,
and the supporting Declaration of Polk, the supporting Declaration
of Steve Weisbrot, British Airways' Memorandum of Law in Support of
the Motion for Preliminary Approval and its exhibits thereto, and
found good cause for Order.
Therefore, for purposes of the Order, Judge Furman adopts all
defined terms as set forth in the Settlement Agreement.
Under Federal Rule of Civil Procedure 23(b)(3), the Settlement
Class, as defined as follows, is preliminarily certified for the
purpose of settlement only: All persons or entities in the United
States who purchased a ticket for a BA flight: a. where BA later
canceled that flight between March 1, 2020 and Dec. 31, 2021; and
b. the customer did not cancel the flight or fail to show for the
first leg of the flight prior to the cancellation of a later leg;
and c. the customer did not receive a refund or rebooking from BA;
and the customer received a voucher from BA and (1) with respect to
the March 1 - November 19 Settlement Class Members did not already
use the entire full value of the voucher; and (2) with respect to
the November 20 - December 31 Settlement Class Members did not
already use their voucher in whole or in part.
March 1 - November 19 Settlement Class Members means all Settlement
Class Members who purchased a ticket for a BA flight where BA later
canceled that flight between March 1, 2020 and Nov. 19, 2020.
November 20 - December 31 Settlement Class Members means all
Settlement Class Members who purchased a ticket for a BA flight
where BA later cancelled that flight between Nov. 20, 2020 and Dec.
31, 2021.
The Settlement Class, if certified in connection with Final
Approval, will be for settlement purposes only and without
prejudice to the Parties in the event the Settlement is not finally
approved by the Court or otherwise does not take effect.
Judge Furman has scrutinized the Settlement Agreement carefully. He
preliminarily approves the Settlement, as memorialized in the
Settlement Agreement, as fair, reasonable, and adequate, and in the
best interest of the Plaintiffs and the other Settlement Class
Members, subject to further consideration at the Final Approval
Hearing to be conducted. He stays the Litigation pending final
approval of the Settlement, and enjoins, pending final approval of
the Settlement, any actions brought by the named Plaintiffs
concerning a Released Claim.
Judge Furman approves the Class Notice substantially in the form
attached as Exhibits C and D to the Settlement Agreement and the
Claim Form substantially in the form attached as Exhibit B to the
Settlement Agreement. The date and time of the Final Approval
Hearing will be included in the Class Notice before it is
disseminated.
Angeion Group is appointed as the Settlement Claims Administrator.
BA will provide the Settlement Administrator with the names,
passenger name records, e-mail addresses (if available), and the
mailing addresses (if available) of any Settlement Class Members
for whom BA does not have an e-mail address on file for the purpose
of disseminating the Class Notice. This information will not be
shared with the Class Counsel.
The Settlement Claims Administrator will provide notice of the
Settlement and the Final Approval Hearing to Settlement Class
Members as follows:
a. Angeion Group will disseminate via e-mail the Long Form
Notice to Settlement Class Members for whom BA has an e-mail
address.
b. Angeion Group will disseminate by first-class mail the
Summary Notice to the last known address for those Settlement Class
Members for whom BA does not have an e-mail address, or if the
e-mail is undeliverable; and
c. Within five days following the entry of this Order, the
Settlement Claims Administrator will establish the Settlement
Website pursuant to the terms of the Settlement Agreement. The
Settlement Website will have a Claim Form submission capability,
contain the Preliminary Approval Order, the Class Notice, the
Settlement Agreement, and other information regarding the Court
approval process as agreed to by the Parties.
The Court will hold a Final Approval Hearing on Nov. 1, 2022, at
4:00 p.m. (ET).
The Class Counsel's application for an award of attorneys' fees and
expenses, and the Class Counsel's application for service awards,
will be decided in an order separate from the order that addresses
the fairness, reasonableness, and adequacy of the Settlement. Any
appeal from any orders relating solely to the Class Counsel's
application for an award of attorneys' fees and expenses, or the
Class Counsel's application for service awards, or any reversal or
modification thereof, will not operate to terminate or cancel the
Settlement, or affect or delay the finality of the judgment
approving the Settlement and the Settlement Agreement.
If the Settlement is approved, all Settlement Class Members who do
not exclude themselves will be bound by the proposed Settlement
provided for in the Settlement Agreement, and by any judgment or
determination of the Court affecting Settlement Class Members. All
Settlement Class Members who do not exclude themselves will be
bound by all determinations and judgments in the Litigation
concerning the Settlement, whether favorable or unfavorable to the
Settlement Class.
Papers in support of final approval of the Settlement and the Class
Counsel's application for attorneys' fees, expenses and costs, and
service awards will be filed no later than 21 calendar days prior
to the Opt-Out and Objection Date. Papers in opposition will be
filed and reply papers will be filed no later than seven calendar
days prior to the Final Approval Hearing.
No Settlement Class Member or any other person will be heard or
entitled to contest the approval of the terms and conditions of the
Settlement, or if approved, the judgment to be entered approving
the Settlement, or the Class Counsel's application for an award of
attorneys' fees and expenses, or for service awards, unless that
Settlement Class Member or person filed objections on the
Electronic Case Filing ("ECF") System no later than 21 calendar
days before the Final Approval Hearing.
Any requests for exclusion must be received no later than 21
calendar days before the Final Approval Hearing, which is the
Opt-Out and Objection Date.
The Settlement Claims Administrator will also provide a final
report to the Class Counsel and BA, no later than 14 calendar days
before the Final Approval Hearing, that summarizes the number of
opt-out notifications received to date, and other pertinent
information. The Class Counsel will include the information, as
appropriate, in its reply papers.
The Court retains exclusive jurisdiction over the Litigation to
consider all further matters arising out of or connected with the
Settlement.
A full-text copy of the Court's June 1, 2022 Order is available at
https://tinyurl.com/2vn2myjd from Leagle.com.
CARLOS DEL TORO: Filing of Class Status Bid Extended
----------------------------------------------------
In the class action lawsuit captioned as BEASLEY et al v. DEL TORO,
et al., Case No. 1:22-cv-00667 (D.D.C.), the Hon. Judge Christopher
R. Cooper entered an order granting the motion to extend time to
file motion for class certification.
The nature of suit states Other Statutes -- Other Statutory
Actions.[CC]
CELGENE CORP: Order Granting Bid to Amend Securities Suit Affirmed
------------------------------------------------------------------
In the case, In re CELGENE CORPORATION SECURITIES LITIGATION, Civil
Action No. 18-4772 (D.N.J.), Judge John Michael Vazquez of the U.S.
District Court for the District of New Jersey:
(i) denies the Defendants' partial appeal of Magistrate Judge
James B. Clark's Feb. 24, 2022 Letter Order granting the
Plaintiff's motion for leave to file an amended
complaint; and
(ii) denies as moot the Defendants' motion to stay pending
resolution of the appeal is also pending.
I. Background
The class action concerns allegations of securities fraud. Lead
Plaintiff AMF asserts that Defendant Celgene and several of its key
officers and/or employees engaged in fraud under Section 10(b) of
the Securities Exchange Act of 1934, 15 U.S.C. Section 78a et seq.,
and Rule 10b-5 due to material misstatements and omissions as to
two drugs in Celgene's pipeline, Otezla and Ozanimod. With respect
to Ozanimod, the Plaintiff alleges that certain Defendants
misrepresented when Celgene would file a New Drug Application
("NDA") with the United States Food and Drug Administration ("FDA")
and failed to disclose the discovery of a Metabolite that could
impact FDA approval. This appeal pertains to alleged
misrepresentations and omissions about the Ozanimod NDA and the
Metabolite in Celgene's corporate filings with the SEC, press
releases, and quarterly earnings call presentations. The statements
at issue are not attributed to any Individual Defendant.
On Sept. 26, 2018, the Court consolidated two related cases,
appointed AMF as the Lead Plaintiff, and appointed the class
counsel. AMF filed the Second Amended Complaint ("SAC") on Feb. 27,
2019, alleging (i) violations of Section 10(b) of the Exchange Act
and Rule 10b-5 against all the Defendants; and (ii) violations of
Section 20(a) of the Exchange Act against some of Celgene's key
employees. On Feb. 8, 2019, the Defendants filed a motion to
dismiss the SAC pursuant to Federal Rule of Civil Procedure
12(b)(6) and the Private Securities Litigation Reform Act of 1995
("PSLRA").
The Court dismissed the Plaintiff's Section 20(a) claim and
narrowed the Section 10(b) and Rule 10b-5 claim. As to the Section
10(b) and Rule 10b-5 claim, the Court determined that many
categories of alleged misrepresentations and omissions were not
actionable. But the Court concluded that the Plaintiff plausibly
pled that Defendants Scott A. Smith, Philippe Martin, and Terrie
Curran made certain actionable misstatements about Otezla and
Ozanimod and had the requisite scienter. Accordingly, the Plaintiff
stated a Section 10(b) and Rule 10b-5 claim as to these
Defendants.
The Court also noted that scienter is imputed to Celgene for these
Defendants' actionable misstatements and omissions. As a result,
the Plaintiff stated a Section 10(b) and Rule 10b-5 claim as to
Celgene, through Smith, Martin, and Curran. The Court, therefore,
partially granted the Defendants' motion and dismissed the
Plaintiff's Section 10(b) and Rule 10b-5 claim as to all the
Defendants except Smith, Martin, Curran, and Celgene.
In partially granting the Defendants' motion to dismiss, the Court
granted the Plaintiff leave to file an amended pleading. The Court
stated that if the Plaintiff failed to file an amended complaint
within 30 days, the claims that were dismissed through the MTD
Opinion would be dismissed with prejudice. The Plaintiff did not
file an amended complaint within the 30-day deadline.
The Plaintiff subsequently filed a motion to certify a class, which
the Court granted. It filed a motion for leave to file an amended
complaint. Judge Clark granted the Plaintiff's motion to amend on
Feb. 24, 2022, and the Plaintiff filed the Third Amended
Consolidated Class Action Complaint ("TAC") on March 1, 2022. This
appeal followed. The Defendants also filed a motion to stay their
obligation to answer or otherwise respond to the TAC pending
resolution of their appeal. The Plaintiff opposes both motions.
II. Analysis
At issue on appeal are the Plaintiff's new factual allegations to
establish Smith's liability for Celgene's corporate statements
about Ozanimod, pursuant to Janus Capital Group, Inc. v. First
Derivative Traders, 564 U.S. 135 (2011). The Plaintiff argued that
these allegations also establish liability for Celgene by imputing
scienter to the corporation and pursuant to the doctrine of
corporate scienter. In opposing the motion to amend, the Defendants
countered that this category was futile because it is premised on
allegations that the Court previously dismissed with prejudice.
Judge Vazquez opines that the alleged corporate misstatements were
not previously dismissed with prejudice. Consequently, the
Plaintiff's new theories in the TAC are not futile. Judge Clark,
therefore, did not err in granting the Plaintiff's motion to amend.
Finally, because he is affirming Judge Clark's decision, Judge
Vazquez denies as moot the Defendants' motion to stay is denied is
moot.
III. Conclusion
For the reasons he stated, and for good cause shown, Judge Vazquez
denies the Defendants' appeal and affirms Judge Clark's Feb. 24,
2022 Letter Order. He denies as moot the Defendants' motion to
stay.
A full-text copy of the Court's June 1, 2022 Opinion & Order is
available at https://tinyurl.com/mukps26d from Leagle.com.
CHAMPLAIN TOWERS: Building Collapse Suit Reaches $1B Settlement
---------------------------------------------------------------
topclassactions.com reports that survivors and bereaved family
members secured a settlement of over $1 billion in their class
action lawsuit over the 2021 collapse of Champlain Towers South.
The settlement benefits a large group of individuals affected by
the Champlain Towers South collapse. This includes unit owners,
residents, anyone who was present at the time of the collapse,
those injured in the collapse (physically or emotionally), those
who suffered personal property damage and those who suffered
economic damages from the collapse. The class also includes
representatives of these individuals, including surviving family
members of deceased victims.
On June 24, 2021, a 12-floor condominium in Surfside, Florida,
collapsed in the early hours of the morning, according to the
National Institute of Standards and Technology (NIST). The
condominium, called Champlain Towers South, collapsed suddenly and
resulted in the deaths of 98 people. The NIST is investigating the
cause behind the collapse.
Although the NIST investigation may take years, residents and
bereaved family members took quick legal action against the
condominium's operators.
According to plaintiffs in the consolidated multidistrict
litigation, the Champlain Towers South Condominium Association knew
the building needed serious repairs but failed to spend the money
or evacuate residents. Additionally, the residents contend,
irresponsible construction in a luxury high-rise next door caused
daily tremors that further destabilized Champlain Towers South.
Building developers, condominium managers, insurance companies and
other defendants haven't admitted any wrongdoing in the
consolidated class action lawsuit. However, the companies agreed to
a settlement of $1.02 billion to resolve these allegations, NPR
reported.
Under the terms of the settlement, class members can receive
compensation for wrongful death, personal injury and loss of
personal property. Claims for real property damages were settled in
a separate settlement and are not covered by this deal.
Class members can have two options in the settlement: either file a
simple claim form or go through the full claims process.
Filing the personal injury simple claim form allows class members
to make claims for pre-set damages.
In contrast, the full claim form is much longer and requires class
members to detail the amount they claim for damages and provide
detailed documentation for each claim. Although this process is
more involved, a full claim form may result in higher payments for
Class Members.
Full claim forms are available for personal injury, personal
property and unit contents, and wrongful death.
The deadline for exclusion and objection in the settlement is June
16, 2022.
The final approval hearing for the deal is scheduled for June 23,
2022.
The deadline to submit a valid claim form (either simple or full)
with the settlement is Aug. 1, 2022.
Who's Eligible
The settlement benefits a large group of individuals affected by
the Champlain Towers South collapse. This includes unit owners,
residents, anyone who was present at the time of the collapse,
those injured in the collapse (physically or emotionally), those
who suffered personal property damage and those who suffered
economic damages from the collapse. The class also includes
representatives of these individuals, including surviving family
members of deceased victims.
Potential Award
Varies
Proof of Purchase
The full claim form requires class members to detail the amount
they claim for damages and provide detailed documentation for each
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
08/01/2022
Case Name
In Re: Champlain Towers South Collapse Litigation, Case No:
2021-015089-CA-01, in the Circuit Court of the Eleventh Judicial
Circuit in and for Miami-dade County, Florida
Final Hearing
06/23/2022
Settlement Website
CTSReceivership.com
Claims Administrator
MICHAEL I. GOLDBERG, RECEIVER
Receiver for Champlain Towers South Condominium Association, Inc.
The Main Las Olas
201 East Las Olas Boulevard
Suite 1800
Fort Lauderdale, Florida 33301
954-331-4190
954-463-2224 (Fax)
CTSReceivership@akerman.com
Class Counsel
KOZYAK TROPIN & THROCKMORTON LLP
GROSSMAN ROTH YAFFA COHEN PA
PODHURST ORSECK PA
THE MOSKOWITZ LAW FIRM PLLC
COLSON HICKS EIDSON PA
SEARCY DENNEY SCAROLA BARNHART & SHIPLEY PA
SALTZ MONGELUZZI & BENDESKY
PITA WEBER & DEL PRADO
SILVA & SILVA PA
GARY WILLIAMS PARENTI WATSON & GARY PLLC
GONZALO R DORTA PA
GOLDBERG & ROSEN PA
LIPPSMITH LLP
HEISE SUAREZ MELVILLE PA
MSP RECOVERY LAW FIRM
MERLIN LAW GROUP
THE BRAD SOHN LAW FIRM
Defense Counsel
WEISS SEROTA HELFMAN COLE + BIERMAN PL
JOHNSON ANSELMO MURDOCH BURKE PIPER & HOCHMAN PA
BOWMAN AND BROOKE LLP
PHELPS DUNBAR LLP
KLEIN PARK & LOWE
WEINBERG WHEELER HUDGINS GUNN & DIAL
ZETLIN & DE CHIARA LLP
COLE SCOTT & KISSANE PA
GUNSTER YOAKLEY & STEWART PA
HOGAN LOVELLS US LLP
FALK WAAS HERNANDEZ SOLOMON MENDLESTEIN & DAVIS PA
GREENBERG TRAURIG PA
COFFEY BURLINGTON PL
FERENCIK LABINOFF BRANDT BUSTAMANTE AND GOLDSTEIN PA
HIGHTOWER STRATTON NOVIGROD & KANTOR
MCFARLANE FERGUSON & MCMULLEN
WRIGHT FULFORD MOORHEAD & BROWN
LUKS SANTANIELLO PETRILLO COHEN & PETERFRIEND
BUTLER WEIHMULLER KATZ CRAIG LLP
RITTER CHUSID LLP
WILLIAM E STACEY JR PA
LLOYD GRAY WHITEHEAD & MONROE
WARD DAMON PL
TORRESVICTOR
KUBICKI DRAPER
RESNICK & LOUIS PC
DERREVERE STEVENS BLACK & COZAD [GN]
CHARLES SCHWAB: Corrente Balks at Merger's Anticompetitive Acts
---------------------------------------------------------------
JONATHAN CORRENTE; CHARLES SHAW; and LEO WILLIAMS, individually and
on behalf of all others similarly situated, Plaintiffs v. THE
CHARLES SCHWAB CORPORATION, Defendant, Case No. 4:22-cv-00470 (E.D.
Tex., June 2, 2022) seeks to recover damages, interest, costs of
suit, equitable relief, and reasonable attorneys' fees for damages
resulting from the Defendant's anticompetitive combination and
merger in violation of the Clayton Act.
The Plaintiff in the complaint seeks to remedy the damage inflicted
by the anticompetitive combination of two of the largest retail
brokerages in the United States in October 2020, Charles Schwab and
TD Ameritrade. The brokerages cater to retail investors such as the
Plaintiffs and the Class Members, and while they do not charge
commissions, they profit by selling the Plaintiffs' and the Class's
trades, their order flow, to market makers, who then trade against
them for profit, says the suit.
As a result of the merger's anticompetitive effects, retail
customers, including the Plaintiffs and the Class Members, have
made less money from their trades through rebates or price
improvements; have faced increased transaction costs, including
through being traded against by market makers using retail
customers' own data; have faced even-further-decreased transparency
in where their orders are going, what their order flow information
is being used for, and how much money is being paid to their
brokers for this information's sale; and have even less control and
choice regarding how their trades are handled, and on what cost
basis, the suit added.
THE CHARLES SCHWAB CORPORATION is a financial services company. The
Company provides wealth management, securities brokerage, banking,
asset management, custody, and financial advisory services. [BN]
The Plaintiff is represented by:
Brian J. Dunne, Esq.
BATHAEE DUNNE LLP
633 West Fifth Street, Suite 2600
Los Angeles, CA 90071
Telephone: (213) 462-2772
Email: bdunne@bathaeedunne.com
- and -
Yavar Bathaee, Esq.
Andrew Wolinsky, Esq.
BATHAEE DUNNE LLP
445 Park Avenue, 9th Floor
New York, NY 10022
Telephone: (332) 322-8835
Email: yavar@bathaeedunne.com
awolinsky@bathaeedunne.com
- and -
Edward M. Grauman, Esq.
BATHAEE DUNNE LLP
7000 North MoPac Expressway, Suite 200
Austin, TX 78731
Telephone: (512) 575-8848
Email: egrauman@bathaeedunne.com
CLOVER HEALTH: Limited Amendment to Initial Case Mngt Order OK'd
----------------------------------------------------------------
In the class action lawsuit captioned as TIMOTHY BOND, ET AL., v.
CLOVER HEALTH INVESTMENTS, CORP. f/k/a SOCIAL CAPITAL HEDOSOPHIA
HOLDINGS CORP. III, VIVEK GARIPALLI, ANDREW TOY, JOE WAGNER, and
PALIHAPITIYA, Case No. 3:21-cv-00096 (M.D. Tenn.), the Hon. Judge
Aleta A. Trauger entered an order granting the joint motion for
limited amendment to Initial Case Management Order as follows:
-- The Plaintiffs' deadline to file their motion for class
certification from June 17, 2022 to July 1, 2022,
-- Extend Defendants deadline to file their opposition to
class certification from August 19, 2022 to September 9,
2022, and
-- The Plaintiffs' deadline to file a reply in further support
of their motion for class certification from September 19,
2022 to October 10, 2022.
Clover Health is an American health care company founded in 2014.
The company provides Medicare Advantage insurance plans and
operates as a direct contracting entity with the U.S. government.
A copy of the Court's order dated June 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3xi16g8 at no extra charge.[CC]
COMPASS INC: Sheppard Labor Code Suit Goes to N.D. California
-------------------------------------------------------------
The case styled LISA SHEPPARD and TODD SHEPPARD, individually and
on behalf of all others similarly situated v. COMPASS, INC.;
COMPASS CALIFORNIA, INC., dba Compass; COMPASS CALIFORNIA II, INC.,
dba Compass; COMPASS CALIFORNIA III, INC., dba Compass; and DOES 1
through 10, inclusive, Case No. SCV-268304, was removed from the
Superior Court of the State of California, County of Sonoma, to the
U.S. District Court for the Northern District of California on June
2, 2022.
The Clerk of Court for the Northern District of California assigned
Case No. 3:22-cv-03237 to the proceeding.
The case arises from the Defendants' alleged breach of contract,
fraud, and violations of the California Labor Code and the
California's Business and Professions Code including unreimbursed
business expenses, non-compliant wage statements, and unfair
business practices.
Compass, Inc. is real estate technology company, headquartered in
New York, New York.
Compass California, Inc., doing business as Compass, is a real
estate corporation in Beverly Hills, California.
Compass California II, Inc., doing business as Compass, is a real
estate corporation in Beverly Hills, California.
Compass California III, Inc. doing business as Compass, is a real
estate corporation in Beverly Hills, California. [BN]
The Defendants are represented by:
David Szwarcsztejn, 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: david.szwarcsztejn@ogletree.com
- and –
Graham M. Helm, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
One Embarcadero Center, Suite 900
San Francisco, CA 94111
Telephone: (415) 442-4810
Facsimile: (415) 442-4870
E-mail: graham.helm@ogletree.com
COMPREHENSIVE HEALTHCARE: Extension to File Class Cert Bid Sought
-----------------------------------------------------------------
In the class action lawsuit captioned as ERIK BLAIR, on behalf of
himself and similarly situated employees, v. COMPREHENSIVE
HEALTHCARE MANAGEMENT SERVICES, LLC, Case No. 2:18-cv-00254-WSS
(W.D. Pa.), the Parties asks the Court to enter an order extending
by two weeks the deadline for the Plaintiff to file their amended
motion for class certification so that the parties can explore the
possibility of settlement in this action.
On May 2, 2022, the Court extended expert discovery, set a deadline
for Defendants to provide supplemental written discovery, and set a
deadline of June 6, 2022 for Plaintiffs' amended motion for class
certification.
Since the Court entered that order, the Defendants produced the
supplemental written discovery agreed upon between counsel on April
28, 2022, Plaintiffs deposed Defendants' expert in this action, and
Plaintiffs' expert served a revised expert report that aimed to
address the issues that Defendants raised in their experts'
rebuttal to Plaintiffs' expert report and in Defendants' opposition
to Plaintiffs' first motion for class certification.
The revised report served by Plaintiffs' expert reduced the damages
identified in Plaintiffs' prior expert report, furthering narrowing
the scope of potential disagreement between the parties.
Comprehensive Healthcare Management Services, LLC is a private
company. The company specializes in the Hospital & Health Care
area.
A copy of the Parties' motion to certify class dated June 3, 2022
is available from PacerMonitor.com at https://bit.ly/3Q8JRX9 at no
extra charge.[CC]
The Plaintiff is represented by:
Joseph H. Chivers, Esq.
THE EMPLOYMENT RIGHTS GROUP, LLC
First & Market Building, Suite 650
100 First Avenue
Pittsburgh, PA 15222
Telephone: 412-227-0763
Facsimile: 412-774-1994
E-mail: jchivers@employmentrightsgroup.com
- and -
Catherine A. Cano, Esq.
10050 Regency Cir., Suite 400
Omaha, NE 68114
Telephone: (402) 391-1991
Facsimile: (402) 391-7363
E-mail: catherine.cano@jacksonlewis.com
- and -
Jeffrey W. Chivers, Esq.
Theodore I. Rostow, Esq.
CHIVERS LLP
300 Cadman Plaza West, 12 Floor
Brooklyn, NY 11201
Telephone: (718) 210-9825
E-mail: jwc@chivers.com
tir@chivers.com
The Defendant is represented by:
Marla N. Presley, Esq.
JACKSON LEWIS
1001 Liberty Avenue, Suite 1000
Pittsburgh, PA 15222
Telephone: (412) 232-0404
Facsimile: (412) 232-3441
E-mail: marla.presley@jacksonlewis.com
- and -
Joseph H. Chivers, Esq.
THE EMPLOYMENT RIGHTS GROUP, LLC
First & Market Building, Suite 650
100 First Avenue
Pittsburgh, PA 15222
Telephone: (412) 227-0763
Facsimile: (412) 774-1994
E-mail: jchivers@employmentrightsgroup.com
- and -
Catherine A. Cano, Esq.
E-mail: catherine.cano@jacksonlewis.com
10050 Regency Cir., Suite 400
Omaha, NE 68114
Telephone: (402) 391-1991
Facsimile: (402) 391-7363
COPALA INC: Fails to Pay Proper Wages, Nebieridze Suit Says
-----------------------------------------------------------
SHALVA NEBIERIDZE, individually and on behalf of all others
similarly situated, Plaintiffs v. VALERI KOPALEISHVILLI, DANIEL
MISHIN, COPALA, INC., JUNE HOMES US, INC, JUNE NY, LLC, JUNE NY 1,
LLC, JUNEHOME, LLC, JUNE NYC, LLC, JUNEHOMES, LLC, JUNE REAL
ESTATE, LLC, JUNE SD, LLC JUNEINVEST, LLC, and JUNE HOMES HOLDINGS,
LLC, Jointly and Severally, Defendants, Case No. 1:22-cv-03206
(E.D.N.Y., May 31, 2022) is a class action against the Defendants
for unpaid minimum wages and overtime premium pay, for unpaid
spread-of-hours premiums, and for failure to provide proper wage
notices and wage statements to Plaintiff pursuant to the Fair Labor
Standards Act and the New York Labor Law.
Plaintiff Nebieridze was hired by Defendants Valeri Kopaleishvilli
and Copala, Inc. to perform work for Defendants' enterprise in New
York, Washington D.C., Philadelphia and Boston areas from
approximately February 8, 2021, through approximately September 20,
2021. Plaintiff's duties included general residential construction
work and remodeling, including but not limited to the purchasing
and delivery of construction supplies and furniture from various
construction supply stores (for example beds, desks, mattresses,
and other furniture from Ikea), disposal of trash and rubbish, and
assembly of furniture.
The Defendants' enterprise includes a network of various corporate
entities which collectively own and operate a business known as
"June Homes" which is a managed marketplace for apartment rentals
and which also provides property management services for
landlords.[BN]
The Plaintiff is represented by:
Marcus A. Nussbaum, Esq.
Ilya Fishkin, Esq.
LAW OFFICES OF ILYA FISHKIN, P.C.
169 Commack Road, Ste. H371
Commack, NY 11725
Telephone: (201) 956-7071
Facsimile: (347) 572-0439
E-mail: marcus.nussbaum@gmail.com
CREDIT SUISSE: Portnoy Law Discloses Securities Class Action
------------------------------------------------------------
The Portnoy Law Firm advises Credit Suisse Group AG ("Credit
Suisse") (NYSE: CS) investors that a class action filed on behalf
of investors that lost money on their Credit Suisse stock. Credit
Suisse investors are encouraged to contact the firm to discuss
their legal rights.
Investors are encouraged to contact attorney Lesley F. Portnoy, by
phone 844-767-8529 or email: lesley@portnoylaw.com, to discuss
their legal rights, or click here to join the case via
www.portnoylaw.com. The Portnoy Law Firm can provide a
complimentary case evaluation and discuss investors' options for
pursuing claims to recover their losses.
According to the lawsuit, defendants made false and/or misleading
statements and/or failed to disclose that: (1) Credit Suisse had
deficient disclosure controls and procedures and internal control
over financial reporting; (2) Credit Suisse's practice of lending
money to Russian oligarchs subject to U.S. and international
sanctions created a significant risk of violating rules pertaining
to those sanctions and future sanctions; (3) the foregoing conduct
subjected the Company to an increased risk of heightened regulatory
scrutiny and/or enforcement actions; (4) a synthetic securitization
deal, in which Credit Suisse sold off $80 million worth of risk
related to a $2 billion portfolio of loans backed by assets owned
by certain of the bank's ultra-high net worth clients (the
"Securitization Deal") concerned loans that Credit Suisse made to
Russian oligarchs previously sanctioned by the U.S.; (5) the
purpose of the Securitization Deal was to offload the risks
associated with these loans and mitigate the impact on Credit
Suisse of sanctions likely to be implemented by Western nations in
response to Russia's invasion of Ukraine; (6) Credit Suisse's
request that non-participating investors destroy documents related
to the Securitization Deal was intended to conceal the Company's
noncompliance with U.S. and international sanctions in its lending
practices; (7) the foregoing, once revealed, was likely to subject
the Company to enhanced regulatory scrutiny and significant
reputational harm; and (8) as a result, the Company's public
statements were materially false and misleading at all relevant
times. When the true details entered the market, the lawsuit claims
that investors suffered damages.
Please visit our website to review more information and submit your
transaction information.
The Portnoy Law Firm represents investors in pursuing claims
against caused by corporate wrongdoing. The Firm's founding partner
has recovered over $5.5 billion for aggrieved investors. Attorney
advertising. Prior results do not guarantee similar outcomes. [GN]
DENTSPLY SIRONA: City of Miami Sues Over Alleged Share Price Drop
-----------------------------------------------------------------
CITY OF MIAMI GENERAL EMPLOYEES'& SANITATION EMPLOYEES' RETIREMENT
TRUST, individually and on behalf of all others similarly situated,
Plaintiff v. DONALD M. CASEY, JR.; DENTSPLY SIRONA INC.; and JORGE
GOMEZ, Defendants, Case No. 2:22-cv-02371-SDM-CMV (S.D. Ohio., June
2, 2022) is a securities class action brought on behalf of all
persons or entities that purchased Dentsply's common stock between
June 9, 2021 and May 9, 2022, inclusive (the "Class Period"),
seeking to pursue remedies under the Securities Exchange Act of
1934 (the "Exchange Act").
According to the complaint, the Defendants disclosed that the Audit
and Finance Committee of its Board of Directors is investigating
allegations that "certain former and current members of senior
management directed the Company's use of the incentives and other
actions to achieve executive compensation targets in 2021." As a
result of these disclosures, Dentsply shares declined by $2.87 per
share, or 7%, from $39.25 per share to $36.38 per share, says the
suit.
As a result of the Defendants' scheme, many of the statements
Defendants made to investors were materially false or misleading.
During the Class Period, Dentsply touted its "go-to-market
strategy" and "more sophisticated and strategic incentive plans" as
drivers of the Company's success. Dentsply also assured investors
that it complied with Generally Accepted Accounting Principles
("GAAP") and maintained adequate internal controls over financial
reporting, yet the Company announced revenues and earnings that
were inflated by the improper recognition of revenue. As a result
of these misrepresentations, Dentsply stock traded at artificially
inflated prices throughout the Class Period, the suit added.
DENTSPLY SIRONA INC. manufactures dental solutions. The Company
offers endodontics, implantology, dental lab, restorative,
orthodontics, imaging, instruments, and hygiene systems. [BN]
The Plaintiff is represented by:
John C. Camillus, Esq.
LAW OFFICES OF JOHN C. CAMILLUS LLC
Columbus, OH 43214
Telephone: (614) 992-1000
Facsimile: (614) 559-6731
Email: jcamillus@camilluslaw.com
DISH ONE: Walker Files Suit Over Unpaid CSRs’ Wages & Overtime
----------------------------------------------------------------
CHARNISE WALKER, on behalf of herself and all others similarly
situated, Plaintiff v. DISH ONE UP SATELLITE, INC., Defendant, Case
No. 1:22-cv-00936-CEF (N.D. Ohio, June 3, 2022) alleges the
Defendant of unlawful pay practices and policies that violated the
Fair Labor Standards Act.
The Plaintiff has worked for the Defendant between
November/December 2021 and March 2022 as a customer service
representative or call center representative.
The Plaintiff claims that the Defendant did not pay her and other
similarly situated CSRs for an approximately 10 to 15 minutes of
time spent performing pre-shift duties, which constituted an
integral and indispensable part of their principal activities. As a
result, despite working more than 40 hours per week, the Defendant
failed to properly pay them overtime compensation at the rate of
one and one-half times their regular rates of pay for all hours
worked in excess of 40 per workweek. The Defendant also failed to
make, keep and preserve records of the unpaid work performed by the
Plaintiff and other similarly situated CSRs before clocking in each
day.
The Plaintiff brings this complaint as a collective action to
recover actual damages as a result of the Defendant's violations of
the FLSA. The Plaintiff also seeks liquidated damages equal in
amount to the unpaid wages, as well as pre- and post-judgment
interest, attorneys' fees, costs, and disbursements, and other
relief as the Court deems just and proper.
Dish One Up Satellite, Inc. provides telemarketing services to its
customers. [BN]
The Plaintiff is represented by:
Lori M. Griffin, Esq.
Anthony J. Lazzaro, Esq.
Alanna Klein Fischer, Esq.
Matthew S. Grimsley, Esq.
THE LAZZARO LAW FIRM, LLC
The Heritage Bldg., Suite 250
34555 Chagrin Boulevard
Moreland Hills, OH 44022
Tel: (216) 696-5000
Fax: (216) 696-7005
E-mail: lori@lazzarolawfirm.com
anthony@lazzarolawfirm.com
alanna@lazzarolawfirm.com
matthew@lazzarolawfirm.com
DUTCH AMERICAN: Underpays Forklift Drivers, Amato Suit Claims
-------------------------------------------------------------
RICHARD AMATO, on behalf of himself and all other similarly
situated persons, known and unknown, Plaintiff v. DUTCH AMERICAN
FOODS, INC., Defendant, Case No. 1:22-cv-02913 (N.D. Ill., June 2,
2022) brings this complaint as a class action under the Illinois
Minimum Wage Law and as a collective action arising under the Fair
Labor Standards Act against the Defendant for its alleged failure
to pay its employees for all hours they have worked.
The Plaintiff has worked for the Defendant as a forklift driver
from June 2019 until he was terminated approximately February 2022
after he suffered a severe workplace injury.
The Plaintiff claims that the Defendant did not compensate him and
other similarly situated Forklift Drivers for all time that they
spent performing duties for the benefit of the Defendant, including
the time they spent donning the required Work Uniform at the
beginning of their respective shifts. As a result, despite working
more than 40 hours per week, they were not paid overtime
compensation at the rate of one and one-half times their regular
rate of pay for all hours worked in excess of 40 per workweek.
On behalf of himself and all other similarly situated employees,
the Plaintiff seeks to recover all unpaid back pay owed to them,
pre-judgment interest, treble damages, statutory damages,
reasonable attorneys' fees and costs incurred in filing this
complaint, and other relief as the Court deems appropriate and
just.
Dutch American Foods, Inc. is a dry foods processor that
manufactures dry foods for all segments of the dry food industry.,
specializing in custom dry blending and various secondary packaging
lines. [BN]
The Plaintiff is represented by:
Marc J. Siegel, Esq.
Bradley Manewith, Esq.
James D. Rogers, Esq.
SIEGEL & DOLAN LTD.
150 North Wacker Drive, Suite 3000
Chicago, IL 60606
Tel: (312) 878-3210
Fax: (312) 878-3211
E-mail: msiegel@msiegellaw.com
bmanewith@msiegellaw.com
jrogers@msiegellaw.com
EAST TENNESSEE: Exposes Patients' Personal Info, Class Suit Says
----------------------------------------------------------------
Greg Raucoules at wate.com reports that a class action complaint
has been filed against East Tennessee Children's Hospital after the
personal information of more than 400,000 patients was exposed in a
data breach in March.
According to the complaint filed by a hospital patient and their
parent, the personal information of approximately 422,531 patients
was exposed in a data breach in March. Information disclosed in the
breach included names, contact information, dates of birth, medical
history information and social security numbers.
The complaints seek to be certified as class action lawsuit that
would represent any affected patients who wish to join. The
complaint seeks payment for damages and attorney fees if the case
is successful.
Affected families claim that the hospital was negligent by failing
to properly safeguard their personal information and breached their
fiduciary duty to act primarily for the benefit of its patients and
former patients. It also argues that the hospital breached the
'implied contract' between the hospital and patients that private
information would be kept safe.
The hospital is providing affected families with free credit
monitoring and identity theft protection services following the
breach. The hospital declined to comment on the pending litigation
and released the following statement.
"Along with providing outstanding patient care, the
confidentiality, privacy, and security of information within our
care are among East Tennessee Children's Hospital's highest
priorities. Upon identifying this incident, we promptly took steps
to secure our systems and investigate the full scope of the event.
We are also reviewing and strengthening existing policies,
procedures, and safeguards related to cyber security and have
already taken additional steps to further enhance the security of
our systems. We notified federal law enforcement of this incident,
as well as appropriate state and federal regulators. We also mailed
notices with information about the incident to those individuals
for whom we have address information and, as an added precaution,
we are providing individuals with credit monitoring and identity
theft protection services at no cost. Information on the services
and instructions on how to enroll in these services is included in
the letter mailed to individuals." [GN]
ESMAH INVESTMENT: Williams Sues Over Failure to Pay Proper Overtime
-------------------------------------------------------------------
LEANNE WILLIAMS, individually and on behalf of all others similarly
situated, Plaintiff v. ESMAH INVESTMENT GROUP, LLC, and KHALED
ALNEHMI, Defendant, Case No. 2:22-cv-00100-BSM (E.D. Ark., June 3,
2022) brings this collective action complaint against the Defendant
for its alleged violations of the overtime provisions of the Fair
Labor Standards Act and the minimum and overtime provisions of the
Arkansas Minimum Wage Act.
The Plaintiff has worked for the Defendants as an hourly-paid cook
from February 2019 until April 2022.
The Plaintiff asserts claim that the Defendant classified him and
other similarly situated employees as exempt from the overtime
requirements of the FLSA. Although they regularly worked over 40
hours per week, the Defendants deprived them of their lawfully
earned overtime compensation at the rate of one and one-half times
their regular rate of pay for all hours worked in excess of 40 per
workweek, the Plaintiff added.
The Plaintiff seeks for herself and all other similarly situated
employees all unpaid overtime premiums for all hours worked over 40
in any week, as well as liquidated damages, reasonable attorney's
fee and all costs connected with this action, and other relief as
the Court may deem just and proper.
Esmah Investment Group, LLC operates a gasoline and convenience
store selling food and beverage products and fuel. Khaled Alnehmi
is a principal, director, officer, and/or owner of the Corporate
Defendant. [BN]
The Plaintiff is represented by:
Patrick Wilson, Esq.
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
10800 Financial Centre Parkway, Suite 510
Little Rock, AR 72211
Tel: (501) 221-0088
Fax: (888) 787-2040
E-mail: patrick@sanfordlawfirm.com
josh@sanfordlawfirm.com
FAIRLIFE MILK: $21 Million Class Action Settlement Reached
----------------------------------------------------------
There is a new $21 million dollar class action settlement for
Fairlife, parent company Coca-Cola to resolve claims that they lied
to consumers about mistreating cows.
Do I Qualify?
If you've purchased Fairlife or Fair Oak Farms milk products on or
before April 27, 2022 you qualify. The settlement covers milk, ice
cream, butter, yogurt and other dairy products from both Fairlife
and Fair Oak Farms. Submit your claim now. There are 52 products
part of the settlement.
How Much Can I Claim?
The settlement allows for refunds of up to 25%, though the deal
caps payments for class members at $80 with proof of purchase or
$20 without proof of purchase. Class members who claim purchases
both with and without proof of purchase can collect payments of up
to $100.
Deadline to file is Dec. 27, 2022. Only file truthful claims. [GN]
FIRST HIGH-SCHOOL: Faces Suit Over False Registration Statement
---------------------------------------------------------------
The Portnoy Law Firm advises First High-School Education Group Co.,
Ltd. ("First High-School Education " or the "Company") (NYSE: FHS)
investors that a class action filed on behalf of investors that
purchased First High-School Education Group shares and lost money
are encouraged to contact the firm to discuss their legal rights.
Investors are encouraged to contact attorney Lesley F. Portnoy, by
phone 844-767-8529 or email: lesley@portnoylaw.com, to discuss
their legal rights, or click here to join the case via
www.portnoylaw.com. The Portnoy Law Firm can provide a
complimentary case evaluation and discuss investors' options for
pursuing claims to recover their losses.
According to the lawsuit, the Company's IPO Registration Statement
was materially false and misleading and omitted to state: (1) 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
Group and its business; (2) 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 Group's
enrollment and growth; and (3) as a result, the Registration
Statement's representations regarding First High-School Education
Group's historical financial and operational metrics and purported
market opportunities did not accurately reflect the actual
business, operations, and financial results and trajectory of First
High-School Education Group at the time of the IPO, and were
materially false and misleading and lacked a factual basis. When
the true details entered the market, the lawsuit claims that
investors suffered damages.
Please visit our website to review more information and submit your
transaction information.
The Portnoy Law Firm represents investors in pursuing claims
against caused by corporate wrongdoing. The Firm's founding partner
has recovered over $5.5 billion for aggrieved investors. Attorney
advertising. Prior results do not guarantee similar outcomes. [GN]
FLOWERS FOODS: Bid to Compel Arbitration in Ludlow Suit Denied
--------------------------------------------------------------
In the case, DANIEL LUDLOW, individually and on behalf of others
similarly situated; and WILLIAM LANCASTER, individually and on
behalf of others similarly situated, Plaintiffs v. FLOWERS FOODS,
INC., a Georgia corporation; FLOWERS BAKERIES, LLC, a Georgia
limited liability company; and FLOWERS FINANCE, LLC, a limited
liability company, Defendants, Case No. 18cv1190-JO-JLB (S.D.
Cal.), Judge Jinsook Ohta of the U.S. District Court for the
Southern District of California denies the Defendants' motion to
compel arbitration as to 18 plaintiffs, the Arbitration Plaintiffs,
who opted in this case under the Fair Labor Standards Act.
I. Introduction
The Plaintiffs bring a wage and hour class action asserting a
collective claim under the FLSA and class action claims under
California law. The Defendants have filed a motion to compel
arbitration as to the Arbitration Plaintiffs who opted in to action
under the FLSA. The Court held oral argument on March 30, 2022.
II. Background
The Plaintiffs are a putative class of delivery drivers alleging
they were misclassified as independent contractors instead of
employees. They work for Flowers Foods, which manufactures and
sells packaged bakery products to restaurant and retail customers.
Flowers Foods relies on delivery drivers such as the Plaintiffs --
which they refer to as "distributors" -- to deliver the bakery
products to the customer locations.
The distributor relationship is governed by a Distributor Agreement
("DA") entered between a distributor and a local operating
subsidiary of Flowers Foods. Each of the eighteen Arbitration
Plaintiffs signed a DA with an arbitration clause incorporating a
separate signed arbitration agreement. The Arbitration Agreements
at issue were signed by an Arbitration Plaintiff and two local
operating subsidiaries of Flower Foods -- namely, Flowers Modesto
or Flowers Henderson. The Arbitration Agreement, which identifies
"COMPANY" as the local operating subsidiary, requires claims and
disputes involving the DA to be resolved through binding
arbitration.
On Feb. 21, 2019, the Plaintiffs filed an amended collective and
class action complaint asserting claims arising from their alleged
misclassification as independent contractors: Failure to pay
overtime under the FLSA, injunctive relief and restitution under
California's Unfair Competition Law, fraud, and wage-and-hour
claims under the California Labor Code. See generally FAC. The
Plaintiffs also asserted usury-related claims against Flowers
Finance. Approximately 115 total Plaintiffs ("Opt-In Plaintiffs"),
including the 18 Arbitration Plaintiffs at issue in the motion,
opted in to the proposed FLSA collective class. The Arbitration
Plaintiffs opted to join the action between June 2019 and November
2019. On June 8, 2021, the Defendants filed the instant motion to
compel the Arbitration Plaintiffs to arbitration pursuant to the
Arbitration Agreements.
After the Arbitration Plaintiffs opted to join the action and prior
to the Defendants' filing of the motion to compel arbitration, the
parties actively litigated the action. During this time, the
Defendants served substantial discovery requests and engaged in
various discovery disputes requiring court intervention.
Additionally, on Aug. 13, 2019, the Defendants filed a motion to
stay the action pending the California Supreme Court's decision on
whether the ABC Test articulated in Dynamex Operations West Inc. v.
Superior Court, 4 Cal. 5th 903 (2018), applies retroactively. On
Sept. 20, 2019, while the motion to stay was pending, the
Defendants filed a motion for judgment on the pleadings with regard
to the fraud and usury claims. After the stay was lifted, the
Defendants filed a renewed motion for judgment on the pleadings on
Feb. 24, 2021, which resulted in the dismissal of the fraud and
usury claims. On March 29, 2022, one day before oral argument on
the motion to compel arbitration, the Defendants filed a motion for
decertification of the FLSA collective claim, which cited to
discovery from certain Arbitration Plaintiffs.
III. Discussion
The Arbitration Plaintiffs argue that (1) the Defendants cannot
enforce the Arbitration Agreement because they are not signatories
to the agreement; (2) even if the Defendants could enforce the
Arbitration Agreement, they waived their right to arbitrate; and
(3) even if there were no waiver, the Arbitration Agreement is
unconscionable and therefore invalid.
Judge Ohta first examines whether the Defendants can enforce the
Arbitration Agreement as a non-signatory, and then turns to whether
the Arbitration Agreement has been waived. Because she determines
that there is waiver, she does not reach the unconscionability
argument.
A. Defendants Can Enforce the Arbitration Agreement as Third-Party
Beneficiaries
First, the Arbitration Plaintiffs argue that the Defendants cannot
enforce the Arbitration Agreements because only the local operating
subsidiaries -- Flowers Modesto or Flowers Henderson -- and not the
Defendants, signed the Arbitration Agreement with the Arbitration
Plaintiffs.
Judge Ohta is not persuaded. She holds that the Arbitration
Agreement is made for the benefit of the Defendants because it
covers claims involving them as "affiliated companies." Flowers
Foods is the parent company of Flowers Bakeries, which is the
parent company of Flowers Modesto and Flowers Henderson, the local
operating subsidiaries that signed the Arbitration Agreements with
the Arbitration Plaintiffs. Both Flowers Foods and Flowers Bakeries
are parent companies and associated under common ownership with the
signatory subsidiaries. They are thus affiliates of those
subsidiaries.
The Arbitration Plaintiffs argue that the Defendants cannot be
affiliates because they have denied any control over the operating
subsidiaries. Judge Ohta rejects the Arbitration Plaintiffs'
argument on the grounds that the ordinary definition of
"affiliate," as explained, also includes an association with others
under common ownership that does not require a degree of control.
Accordingly, Judge Ohta finds that the Defendants are a beneficiary
of the Arbitration Agreement as "affiliated companies" and can thus
enforce the arbitration provisions of the Arbitration Agreement.
B. Defendants Waived Their Right to Arbitration
Second, the Arbitration Plaintiffs argue, and Judge Ohta agrees,
that even if the Defendants can enforce the Arbitration Agreement,
the Defendants have waived their right to compel arbitration due to
their litigation conduct thus far. The Defendants contended during
oral argument that they did not act inconsistently with arbitration
because they had repeatedly informed opposing counsel that they
intended to compel the arbitration of any Opt-In Plaintiffs who had
arbitration agreements.
Judge Ohta rejects this argument on the grounds that such
statements reserving their arbitration right while still actively
litigating in federal court -- that is, hedging their bets in both
forums -- are not sufficient to defeat waiver, citing Martin v.
Yasuda, 829 F.3d 1118, 1125 (9th Cir. 2016). The Yasuda court found
that defendant waived its arbitration right, despite pleading
arbitration as an affirmative defense and maintaining that each
plaintiff executed an arbitration agreement in its joint status
reports, because it continued to seek discovery and litigate key
merits issues to benefit from being in a federal forum.
Similarly, the Defendants' statements to opposing counsel that they
intended to seek arbitration do not circumvent waiver because they
continued to engage in litigation conduct, as described, to their
advantage. Judge Ohta finds that this element is satisfied because
the totality of the Defendants' actions is inconsistent with
exercising their right to arbitrate. The Arbitration Agreements
have, therefore, been waived.
IV. Conclusion
For the reasons she discussed, Judge Ohta denies the Defendants'
motion to compel arbitration as to the Arbitration Plaintiffs.
A full-text copy of the Court's June 1, 2022 Order is available at
https://tinyurl.com/2vr5n7cf from Leagle.com.
FREEDOM FINANCIAL: Scheduling Order Entered in Berman Class Suit
----------------------------------------------------------------
In the class action lawsuit captioned as DANIEL BERMAN, ET AL., v.
FREEDOM FINANCIAL NETWORK, LLC, ET AL., Case No. 18-cv-1060-YGR
(N.D. Cal.), the Hon. Judge Yvonne Gonzalez Rogers entered
scheduling order and order vacating case management conference as
follows:
-- The plaintiffs file fourth June 10, 2022
amended complaint:
-- The Defendants answer fourth June 24, 2022
amended complaint:
-- The Plaintiffs file renewed July 1, 2022
motion for class certification:
-- The Defendants file class July 29, 2022
certification opposition:
-- The Paintiffs file class August 12, 2022
certification reply:
-- Class certification hearing: September 6, 2022
Freedom Financial is a leading digital personal finance company.
A copy of the Court's order dated June 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3xoqSkh at no extra charge.[CC]
FRITO-LAY NORTH: Parrish Suit Moved From E.D. Texas to S.D.N.Y.
---------------------------------------------------------------
The case styled THOMAS PARRISH, individually and on behalf of all
others similarly situated v. FRITO-LAY NORTH AMERICA, INC., Case
No. 4:22-cv-00284, was transferred from the U.S. District Court for
the Eastern District of Texas to the U.S. District Court for the
Southern District of New York on June 2, 2022.
The Clerk of Court for the Southern District of New York assigned
Case No. 1:22-cv-04556-UA to the proceeding.
The case arises from the Defendant's alleged violations of the Fair
Labor Standards Act and the New York Labor Law including failure to
pay minimum wages, failure to pay overtime wages, failure to
furnish wage notices, and failure to provide wage statements.
Mr. Parrish has worked for Frito-Lay since November 2021.
Frito-Lay North America, Inc. is a company that manufactures,
markets, and sells corn chips, potato chips, and other snack foods,
headquartered in Plano, Texas. [BN]
The Plaintiff is represented by:
Matthew S. Parmet, Esq.
PARMET PC
3 Riverway, Ste. 1910
Houston, TX 77056
Telephone: (713) 999-5228
E-mail: matt@parmet.law
GEICO INDEMNITY: Seeks Reconsideration of Class Cert. Order
-----------------------------------------------------------
In the class action lawsuit captioned as TAMARA EWING, KOSMOE
MALCOM, KWANZA GARDNER, AQUEELAH COLEMAN, and TODRA WASHINGTON,
individually and on behalf of all others similarly situated, v.
GEICO INDEMNITY COMPANY, GOVERNMENT EMPLOYEES INSURANCE COMPANY,
and GEICO INSURANCE COMPANY, Maryland corporations, Case No.
5:20-cv-00165-MTT (M.D. Ga.), the Defendants ask the Court to enter
an order to reconsider two holdings in its order certifying a class
of insureds allegedly underpaid title ad valorem tax (TAVT) in
conjunction with the settlement of their total loss claims given
their fundamental impact on certification.
First, the Defendants seek reconsideration of the Court's finding
that Plaintiff Ewing was an appropriate class representative. Ms.
Ewing does not share the same interest as class members in
enforcing the use of the Georgia Department of Revenue TAVT
Assessment Manual (DOR Manual) to determine the tax owed in
settlement of her total loss claim.
Second, the Defendants seek reconsideration of the Court's finding
that Plaintiffs presented proof that the Rule 23 requirements were
met where class membership, liability and damages were based on
inadmissible data that does correspond with Plaintiffs’ theory of
liability or the class definition, especially in light of the
additional predominance and superiority problems that result should
Plaintiffs be required to use the DOR Manuals.
GEICO operates as an insurance company.
A copy of the Defendants' motion dated June 2, 2022 is available
from PacerMonitor.com at https://bit.ly/3tiwmL4 at no extra
charge.[CC]
The Plaintiff is represented by:
Christopher B. Hall, Esq.
Andrew Lampros, Esq.
HALL & LAMPROS, LLP
400 Galleria Parkway, Suite 1150
Atlanta, GA 30339
E-mail: chall@hallandlampros.com
alampros@hallandlampros.com
- and -
Bradley W. Pratt, Esq.
PRATT CLAY LLC
4401 Northside Parkway, Suite 520
Atlanta, GA 30327
E-mail: bradley@prattclay.com
- and -
Andrew J. Shamis, Esq.
SHAMIS & GENTILE, P.A.
14 NE 1st Avenue, Suite 1205
Miami, FL 33132
E-mail: ashamis@shamisgentile.com
- and -
W. Thomas Lacy, Esq.
LINDSEY & LACY, PC
200 Westpark Drive, Suite 280
Peachtree City, GA 30269
E-mail: tlacy@llptc.com
- and -
Scott Edelsberg, Esq.
EDELSBERG LAW, PA
20900 NE 30th Avenue, Suite 417
Aventura, FL 33180
E-mail: scott@edelsberglaw.com
- and -
Rachel Dapeer, Esq.
DAPEER LAW, P.A.
300 S. Biscayne Boulevard, #2704
Miami, FL 33131
E-mail: rachel@dapeer.com
- and -
Edmund A. Normand, Esq.
Jacob L. Phillips, Esq.
NORMAND PLLC
Post Office Box 1400036
Orlando, FL 32814-0036
E-mail: ed@ednormandpllc.com
jacob.phillips@normandpllc.com
The Defendants are represented by:
Valerie S. Sanders, Esq.
Alexander Fuchs, Esq.
Kymberly Kochis, Esq.
EVERSHEDS SUTHERLAND (US) LLP
999 Peachtree Street, NE, Suite 2300
Atlanta, GA 30309-3996
Telephone: (404) 853-8000
Facsimile: (404) 853-8806
E-mail: valeriesanders@eversheds-sutherland.com
kymberlykochis@eversheds-sutherland.com
alexfuchs@eversheds-sutherland.com
GENWORTH LIFE: Extension of Class Cert. Briefing Deadlines Sought
-----------------------------------------------------------------
In the class action lawsuit captioned as PATSY H. MCMILLAN,
individually and on behalf of all others similarly situated, v.
GENWORTH LIFE AND ANNUITY INSURANCE COMPANY, Case No.
1:21-cv-00091-MC (D. Or.), the Parties file joint motion to extend
deadlines for class certification briefing as follows:
Current New
Deadline Deadline
-- Plaintiff's Motion for June 27, 2022 Sept. 27, 2022
Class Certification
and any Class
Certification Expert
Report:
-- Defendant's Opposition Aug. 29, 2022 Dec. 5, 2022
to Motion for Class
Certification and any
Class Certification
Expert Report:
-- Plaintiff's Reply in Oct. 28, 2022 Feb. 6, 2023
Support of Motion for
Class Certification and
any Rebuttal Class
Certification Expert
Report:
The Plaintiff's current class certification deadline is June 27,
2022, which does not leave sufficient time for GLAIC to fully
respond to Plaintiff's Second Set of Interrogatories, for the
parties to meet and confer over any additional requests, and for
depositions to take place prior to that deadline. For all these
reasons, the parties request a three-month extension of the current
class certification deadlines.
Genworth is a stock life insurance company.
A copy of the Parties' motion dated June 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3H2C3lF at no extra charge.[CC]
The Plaintiff is represented by:
Nadia H. Dahab, Esq.
David F. Sugerman, Esq.
SUGERMAN DAHAB
707 SW Washington St. Ste. 600
Portland, OR 97205
Telephone: (503) 228-6474
Facsimile: (503) 228-2556
E-mail: david@sugermandahab.com
nadia@sugermandahab.com
- and -
Norman E. Siegel, Esq.
Lindsay Todd Perkins, Esq.
Ethan M. Lange, Esq.
David A. Hickey, Esq.
STUEVE SIEGEL HANSON LLP
460 Nichols Road Ste. 200
Kansas City, MO 64112
Telephone: 816-714-7100
Facsimile: 816-714-7101
E-mail: siegel@stuevesiegel.com
perkins@stuevesiegel.com
lange@stuevesiegel.com
hickey@stuevesiegel.com
- and -
John J. Schirger, Esq.
Matthew W. Lytle, Esq.
Joseph M. Feierabend, Esq.
MILLER SCHIRGER, LLC
4520 Main Street Ste. 1570
Kansas City, MO 64111
Telephone: (816) 561-6500
Facsimile: (816) 561-6501
E-mail: jschirger@millerschirger.com
mlytle@millerschirger.com
jfeierabend@millerschirger.com
The Defendant is represented by:
Kathy J. Huang, Esq.
ALSTON & BIRD LLP
335 S. Hope Street, Suite 1600
Los Angeles, CA 90071
Telephone: (213) 576-1000
Facsimile: (213) 576-2883
Email: kathy.huang@alston.com
- and -
Christopher T. Carson, Esq.
KILMER VOORHEES & LAURICK, PC
2701 NW Vaughn St., Suite 780
Portland, OR 97210
Telephone: (503) 224-0055
E-mail: ccarson@kilmerlaw.com
- and -
Patrick J. Gennardo, Esq.
ALSTON & BIRD LLP
90 Park Avenue, 15th Floor
New York, NY 10016-1387
Telephone: (212) 210-9400
Facsimile: (212) 210-9444
E-mail: patrick.gennardo@alston.com
- and -
Thomas A. Evans, Esq.
ALSTON & BIRD LLP
560 Mission St., Suite 2100
San Francisco, CA 94105
Telephone: (415) 243-1000
Facsimile: (415) 243-1001
E-mail: tom.evans@alston.com
GLOBAL TRAVEL: Must File Reply Brief by June 10 in Sides Suit
-------------------------------------------------------------
In the class action lawsuit captioned as LISA SIDES, et al., v.
GLOBAL TRAVEL ALLIANCE, INC., Case No. 1:20-cv-00053-SPW-TJC (D.
Mont ), the Hon. Judge Timothy J. Cavan entered an order that the
Defendant shall file its reply brief on or before June 10, 2022.
The Defendant has filed an unopposed motion for extension of time
to file a reply in support of its Motion to Strike or Deny Class
Certification.
A copy of the Court's order dated June 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3tmgiYB at no extra charge.[CC]
GLOBAL TRAVEL: Seeks Extension of Time to File Class Cert Reply
---------------------------------------------------------------
In the class action lawsuit captioned as JULIE WROBEL FOR HERSELF
AND HER SON E. W., LISA SIDES FOR HERSELF AND HER DAUGHTER K. S.,
ERIN CLAUNCH AND JACKIE CLAUNCH FOR THEMSELVES AND THEIR DAUGHTER
K. C., TRACY SMITH FOR HERSELF AND HER SON C. S., JENNIFER WERSLAND
FOR HERSELF AND HER SON K. W., JULIE SWENSON FOR HERSELF AND HER
DAUGHTER K. S., INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY
SITUATED, Plaintiffs, v. GLOBAL TRAVEL ALLIANCE, INC., Case No.
1:20-cv-00053-SPW-TJC (D. Mont.), the Defendant asks the Court to
enter an order extending the time to file a reply brief in support
of its Motion to Strike or Deny Class Certification.
Global Travel requests an extension of time until Friday June 10,
2022, to file its reply brief. Counsel for the Plaintiffs have been
contacted regarding this Motion, and Plaintiffs do not oppose the
Motion, the Defendant contends.
A copy of the Defendant's motion dated June 3, 2022 is available
from PacerMonitor.com at https://bit.ly/3916PyZ at no extra
charge.[CC]
The Plaintiffs are represented by:
John Morrison, Esq.
MORRISON SHERWOOD WILSON
DEOLA, PLLP
401 North Last Chance Gulch
P.O. Box 557
Helena, MT 59624
E-mail: john@mswdlaw.com
- and -
John Heenan, Esq.
Joe Cook, Esq.
HEENAN & COOK
1631 Zimmerman Trail
Billings, MT 59102
E-mail: john@lawmontana.com
joe@lawmontana.com
The Defendant is represented by:
Ian McIntosh, Esq.
Mac Morris, Esq.
Kristen Meredith, Esq.
CROWLEY FLECK PLLP
1915 South 19th Avenue
Bozeman, MT 59719-0969
Telephone: (406) 556-1430
E-mail: imcintosh@crowleyfleck.com
wmorris@crowleyfleck.com
kmeredith@crowleyfleck.com
GODFATHER'S PIZZA: Fails to Pay Proper Wages, Fuelberth Alleges
---------------------------------------------------------------
WILLIAM FUELBERTH, individually and on behalf of all others
similarly situated, Plaintiff v. GODFATHER'S PIZZA, INC., Case No.
8:22-cv-195 (D. Neb., June 2, 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 Fuelberth was employed by the Defendant as delivery
driver.
GODFATHER'S PIZZA, INC. owns and operates restaurants. The Company
offers side items, pies, pizza, beverages, and desserts. [BN]
The Plaintiff is represented by:
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Pkwy, Suite 510
Little Rock, AK 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
Email: josh@sanfordlawfirm.com
GOOGLE LLC: Settles Class Action Over Illegal Biometric Collection
------------------------------------------------------------------
nbcchicago.com reports that Illinois residents may be eligible to
file a claim as part of a new settlement in a class action lawsuit
against Google.
The lawsuit, which mirrors one recently settled with Facebook that
resulted in many residents receiving checks last month, claimed the
company violated the Illinois Biometric Information Privacy Act by
"collecting and storing biometric data of individuals who, while
residing in Illinois, appeared in a photograph in the photograph
sharing and storage service known as Google Photos, without proper
notice and consent."
A settlement agreement was reached in the case earlier this year
and now, eligible residents can file their claims. Google did not
immediately respond to NBC 5's request for comment, but did not
admit any wrongdoing as part of the settlement agreement and denied
all claims made in the lawsuit.
So who is eligible to file a claim and how can they do so?
According to the settlement website, residents are eligible "if, at
any time between May 1, 2015 and April 25, 2022, you appeared in a
photograph in Google Photos while you were an Illinois resident."
Eligible residents can submit a claim now through Sept. 24. All
claims must submitted by that date to be eligible for a payment.
Those looking to submit a claim can do so here.
For those wishing to object or exclude themselves from the
settlement, that deadline is Aug. 10.
A final approval hearing is slated for Sept. 28.
Those who are eligible will receive a portion of the $100 million
settlement fund, after court fees, costs and expenses are deducted.
But how much each person will get remains unclear.
"No one knows in advance how much each valid claim payment will be
until the deadline for submitting claims passes and the Court
awards the Fee and Expense Award and Service Payments," the
settlement website states. "Each Class Member who submits a valid
claim will receive an equal proportionate share of the Net
Settlement Fund."
Attorneys in the case estimate, based on their experience and
similar cases, that each claim could be worth between $200 and
$400.
If the final approval is granted and any potential appeal process
is completed, eligible participants could receive their payments
within 90 days. The final approval hearing is set for 10:30 a.m. on
Sept. 28.
Attorneys warn, however, that even if the court approves the
settlement, there may still be appeals in the case.
"It is always uncertain whether and when appeals can be resolved,
and resolving them can take time," the website states.
Most recently, more than one million Illinois Facebook users begin
receiving checks following a $650 million settlement in a
class-action suit alleging it violated residents' rights by
collecting and storing digital scans of their faces without
permission. Microsoft, Amazon and Google are among the companies
that have also been accused of violations.
A class-action lawsuit has also been brought against Snapchat's
parent company, accusing the social network of violating the act.
Illinois' Biometric Privacy Act prohibits private sector companies
and institutions from collecting biometric data from unsuspecting
citizens in the state or online, no matter where the business is
based. Data cannot be sold, transferred or traded. Unlike any other
state, citizens can sue for alleged violations, which has sparked
hundreds of David-and-Goliath legal battles against some of the
world's most powerful companies.
If a company is found to have violated Illinois law, citizens can
collect civil penalties up to $5,000 per violation compounded by
the number of people affected and days involved. No state
regulatory agency is involved in enforcement.
Since BIPA is an Illinois law, it only applies to state residents.
[GN]
HAWAI'I: Recommended $288K Attys.' Fees in E.R.K. v. DOE Rejected
-----------------------------------------------------------------
In the case, E.R.K, through his legal guardian, R.K., et al.,
Plaintiffs v. DEPARTMENT OF EDUCATION, State of Hawaii, Defendant,
Civil No. 10-00436 SOM/KSC (D. Haw.), Judge Susan Oki Mollway of
the U.S. District Court for the District of Hawaii adopts in part
and rejects it in part the Findings and a Recommendation on the
Settlement Administrator's Application for Additional
Administrative Fees.
I. Introduction
The present objections to an Order Granting Settlement
Administrator's Application for Additional Administrative Fees,
which the Court construes as Findings and a Recommendation ("F&R"),
arise out of the settlement of a certified class action. The
underlying claims concerned whether the State of Hawaii Department
of Education ("DOE") wrongfully denied services under the
Individuals with Disabilities Education Act to individuals the DOE
viewed as having "aged out" of being eligible to receive services.
The Court has previously awarded various expenses and fees in this
case.
In an order of April 28, 2022, the Magistrate Judge, acting
pursuant to the consent of the parties under 28 U.S.C. Section
636(c), awarded $430,608.50 in additional attorneys' fees. In an
F&R issued the same day, the Magistrate Judge recommended approval
of additional administrative fees of $316,443.31. Of this amount,
the DOE now objects to $287,919.50 awarded in "Class Counsel's
Fees." In other words, the Magistrate Judge had before him two
requests for attorneys' fees, one for $430,608.50 and one for
$287,919.50. The latter amount was sought as administrative
expenses rather than as attorneys' fees.
The Court adopts the F&R in part and rejects it in part without
holding a hearing. It declines to award attorneys' fees as
administrative expenses, as the Court has a local rule governing
motions for attorneys' fees that must be followed. However, it
adopts the F&R to the extent it awards $28,523.81 in other
administrative fees ($316,443.31 - $287,919.50 = $28,523.81). The
denial of attorneys' fees sought under the guise of administrative
fees is without prejudice to another motion seeking those fees.
II. Analysis
Judge Mollway adopts the F&R to the extent that it awards
administrative fees for expenses other than attorneys' fees, as no
clear error is apparent from the record. However, to the extent the
F&R recommends an award of $287,919.50 for administrative fees that
are actually attorneys' fees, she declines to award such attorneys'
fees at this time.
Judge Mollway understands that an attorney could have been working
on other matters for other clients at the requested hourly rates.
However, the Plaintiffs have long been on notice that any
attorneys' fees incurred for administrative and ministerial tasks
would likely be cut unless the Plaintiffs could demonstrate that
those tasks had to be done by attorneys. As demonstrated by the
language in the Independent Contractors Agreement, many of the
tasks performed by attorneys in the matter could likely have been
done by non-attorneys at a greatly reduced hourly rate. Judge
Mollway is not saying that attorneys cannot recover for work that
was not referred to contractors. She is only noting that the record
does not include any justification for attorneys having done that
work.
Judge Mollway therefore declines to award any attorneys' fees
sought as administrative fees. Instead, the Plaintiffs are given
leave to file another motion seeking the same fees no later than
July 1, 2022. Any such motion should submit specific explanations
justifying the billing rate of an attorney for each specific
administrative or ministerial task (as opposed to general
references). In other words, with respect to each item or category
of items billed, the motion should describe why a layperson could
not have taken such actions. If the requested fees could have been
done by a person who is not an attorney, then the requested fee
should be reduced to an hourly rate corresponding to such work by a
layperson.
III. Conclusion
Judge Mollway adopts the F&R in part and rejects it in part,
declining to award attorneys' fees as administrative expenses. She
adopts the F&R to the extent it awards $28,523.81 in other
administrative fees ($316,443.31 - $287,919.50 = $28,523.81). The
denial of attorneys' fees sought under the guise of administrative
fees is without prejudice to another motion seeking those fees
filed no later than July 1, 2022.
A full-text copy of the Court's June 1, 2022 Order is available at
https://tinyurl.com/4c54ztej from Leagle.com.
HIBU INC: Cruz Wage-and-Hour Suit Removed to E.D. California
------------------------------------------------------------
The case styled LORI CRUZ, individually and on behalf of all others
similarly situated v. HIBU, INC. and DOES 1 to 50, Case No.
34-2022-00313807, was removed from the Superior Court of the State
of California, County of Sacramento, to the U.S. District Court for
the Eastern District of California on June 2, 2022.
The Clerk of Court for the Eastern District of California assigned
Case No. 2:22-at-00559 to the proceeding.
The case arises from the Defendant's alleged violations of the Fair
Labor Standards Act, the California Labor Code and the California's
Unfair Competition Law including failure to pay all overtime wages,
failure to provide rest periods and pay missed rest period
premiums, failure to provide meal periods and pay missed meal
period premiums, failure to maintain accurate employment records,
failure to pay wages timely during employment, failure to furnish
accurate itemized wage statements, and unfair competition.
Hibu, Inc. is a provider of digital marketing solutions, doing
business in California. [BN]
The Defendant is represented by:
Geoffrey C. Westbrook, Esq.
SEYFARTH SHAW LLP
400 Capitol Mall, Suite 2350
Sacramento, CA 95814-4428
Telephone: (916) 448-0159
Facsimile: (916) 558-4839
E-mail: gwestbrook@seyfarth.com
- and –
Miguel A. Ramirez, Esq.
SEYFARTH SHAW LLP
2029 Century Park East, Suite 3500
Los Angeles, CA 90067-3021
Telephone: (310) 277-7200
Facsimile: (310) 201-5219
E-mail: mramirez@seyfarth.com
ILLINOIS TOOL: BMW's Bid to Set Aside Judge Locke's Order Tossed
----------------------------------------------------------------
In the class action lawsuit captioned as JOHN DUFFY III,
individually and on behalf of all others similarly situated, v.
ILLINOIS TOOL WORKS, INC., and SOUTH/WIN LTD., Case No.
2:15-cv-07407-NGG-SIL (E.D.N.Y.), the Hon. Judge Nicholas G.
Garaufis entered an order denying the non-party BMW's motion to set
aside Judge Locke's May 4, 2022 Order denying its motion to quash
because that Order is neither clearly erroneous nor contrary to
law.
The Plaintiff alleges that Defendants altered the Rain-X formula,
causing damage to his and other class members' continuity prong
sensor in their windshield washer system.
The Plaintiff thus moved to certify a class. This court granted
that motion. As a result, a class has been certified and defined
as:
"(a) persons (b) with vehicles (c) that are equipped with
continuity prong windshield washer fluid sensors (d) who purchased
and used Rain-X windshield washer fluid in such vehicles (e) whose
continuity prong windshield washer sensors in such vehicles was
then repaired or replaced any time after December 30, 2012 and
before January 1, 2017 (f) if either the vehicle was registered in
New York (state), the repairs were done in New York (state), or the
Rain-X was purchased in New York (state)."
After class certification, this court referred the case to
Magistrate Judge Steven Locke for further proceedings, and the
parties, with his assistance, have negotiated a settlement.
The Plaintiff now seeks to provide notice to class members, i.e.,
persons with vehicles equipped with continuity prong windshield
washer fluid sensors who used Rain-X and whose continuity prong
windshield washer sensors were then repaired or replaced.
Illinois Tool is an American Fortune 200 company that produces
engineered fasteners and components, equipment and consumable
systems, and specialty products.
A copy of the Court's order dated June 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3ayp7I3 at no extra charge.[CC]
IMMUNOMEDICS INC: Odeh Suit Seeks to Certify Class
--------------------------------------------------
In the class action lawsuit captioned as AHMAD ODEH, Individually
and on Behalf of All Others Similarly Situated, v. IMMUNOMEDICS,
INC., et al., Case No. 2:18-cv-17645-MCA-ESK (D.N.J.), the Lead
Plaintiffs Boris Saljanin and Construction Industry and Laborers
Joint Pension Trust asks the Court to enter an order:
1. certifying a class of:
"all persons who purchased or otherwise acquired the
common stock of Immunomedics, Inc. between February 9,
2018 and January 17, 2019, inclusive;"
2. appointing Lead Plaintiffs as class representatives; and
3. appointing Block & Leviton LLP and Robbins Geller Rudman &
Dowd LLP class counsel.
Immunomedics was a biotechnology company focused on the development
of antibody-drug conjugates for the treatment of cancer. In 2020,
the company was acquired by Gilead Sciences.
A copy of the Plaintiffs' motion dated June 2, 2022 is available
from PacerMonitor.com at https://bit.ly/3zmiljg at no extra
charge.[CC]
The Plaintiffs are represented by:
James E. Cecchi, Esq.
Lindsey H. Taylor, Esq.
CARELLA, BYRNE, CECCHI, OLSTEIN,
BRODY & AGNELLO, P.C.
5 Becker Farm Road
Roseland, NJ 07068
Telephone: (973) 994-1700
Facsimile: (973) 994-1744
E-mail: jcecchi@carellabyrne.com
ltaylor@carellabyrne.com
- and -
Tor Gronborg, Esq.
Debra J. Wyman, Esq.
Trig R. Smith, Esq.
Jennifer N. Caringal, Esq.
Joseph J. Tull, Esq.
Raphaella Friedman, Esq.
ROBBINS GELLER RUDMAN
& DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: (619) 231-1058
Facsimile: (619) 231-7423
E-mail: torg@rgrdlaw.com
debraw@rgrdlaw.com
trigs@rgrdlaw.com
jcaringal@rgrdlaw.com
jtull@rgrdlaw.com
rfriedman@rgrd.com
- and -
Jeffrey C. Block, Esq.
Jacob A. Walker, Esq.
Nathaniel Silver, Esq.
Michael D. Gaines, Esq.
Brendan Jarboe, Esq.
BLOCK & LEVITON LLP
260 Franklin Street, Suite 1860
Boston, MA 02110
Telephone: (617) 398-5600
Facsimile: (617) 507-6020
E-mail: jeff@blockleviton.com
jacob@blockleviton.com
nate@blockleviton.com
michael@blockleviton.com
brendan@blockleviton.com
- and -
Christopher A. Seeger, Esq.
SEEGER WEISS LLP
55 Challenger Road, 6th Floor
Ridgefield Park, NJ 07660
Telephone: (212) 584-0700
Facsimile: (212) 584-0799
E-mail: cseeger@seegerweiss.com
- and -
Susana Cruz Hodge, Esq.
LITE DePALMA GREENBERG LLC
570 Broad Street, Suite 1201
Newark, NJ 07102
Telephone: (973) 623-3000
Facsimile: (973) 623-0858
E-mail: scruzhodge@litedepalma.com
INMAR INC: Holmes Seeks to Certify Consumer Class Action
--------------------------------------------------------
In the class action lawsuit captioned as BRENT D. HOLMES, On Behalf
of Himself and All Others Similarly Situated, v. INMAR, INC., a/k/a
INMAR INTELLIGENCE, INMAR BRAND SOLUTIONS, INC. and W. J. DEUTSCH
SPIRITS, LLC, Case No. 2:21-cv-02093-CSB-EIL (C.D. Ill.), the
Plaintiff asks the Court to enter an order:
1. certifying suit this as a class action;
2. appoint him as the representative of the classes;
3. appointing his attorneys as class counsel.
The Plaintiff brings this action on his own behalf and on behalf of
the following classes of consumers, described or categorized as
follows:
(a) All consumers who are in compliance with the terms of a
mail-in rebate offer but for which the Defendants have
failed or refused to pay the rebate.
(b) All consumers who may have submitted a rebate form with a
typographical error or scrivener's mistake and where the
rebate was rejected by the Defendants without an
opportunity to correct the scrivener's error or mistake.
(c) All consumers who sent in the completed rebate form and
original cash register receipt within the time frame of
the rebate offer, but whose rebate was rejected because
of a claimed issue or problem arising or pointed out by
the Defendants after the initial submission period.
(d) All consumers who were sent postcards or emails by the
Defendants, stating additional requirements beyond those
required by the terms of the rebate offer and who thereby
did not receive the promised rebate.
(e) All consumers in the State of Illinois who have been
wrongfully denied a promised mail-in cash rebate.
(f) If deemed appropriate by the Court, a subclass or
subclasses of consumers outside the State of Illinois but
within the following states or on military bases located
in the United States, whose rebate submissions were
improperly rejected. According to the printed terms of
the written rebate offer on the Yellow Tail wines, the
rebate is valid on all military bases located in the
United States and in the following states in addition to
Illinois: Alaska, Arizona, California, Colorado,
Connecticut, District of Columbia, Delaware, Florida,
Georgia, Iowa, Idaho, Kansas, Kentucky, Massachusetts,
Maryland, Maine, Michigan, Minnesota, Mississippi,
Montana, North Dakota, Nebraska, New Hampshire, New
Jersey, New Mexico, Nevada, New York, Ohio, Oklahoma,
Oregon, Pennsylvania, Rhode Island, South Carolina, South
Dakota, Virginia, Vermont, Washington, Wisconsin
West Virginia, and Wyoming.
Excluded from the classes are Defendants, their
subsidiaries and affiliates, each of their officers,
directors, and members of their immediate family; any
entity in which a Defendant has a controlling interest;
the legal representatives, heirs, successors, or assigns
of any such excluded party; alcoholic beverage licensees;
all class members who may exclude themselves from the
class; governmental entities, and all judges assigned to
hear any aspect of this litigation, their immediate
family members, and chamber staff.
Inmar is a leading platform company.
A copy of the Plaintiff's motion to certify class dated June 2,
2022 is available from PacerMonitor.com at https://bit.ly/38YTGXa
at no extra charge.[CC]
The Plaintiff is represented by:
H. Kent Heller, Esq.
HELLER, HOLMES & ASSOCIATES, P.C.
1101 Broadway Avenue
P. O. Box 889
Mattoon, IL 61938
Telephone: (217) 235-2700
Facsimile: (217) 235-0743
E-mail: kent@hhlawoff.com
IRONBOUND EXPRESS: Court OK's Revised Class Notice in Luxama Suit
-----------------------------------------------------------------
In the case, VAUDRAL LUXAMA, CHANDLER LUXEUS, JAVIER R. GARCIA,
FREDO BONHOMME, SANTOS MALDONADO, and CHANEL FONTIN, each
individually and as class representatives, Plaintiffs v. IRONBOUND
EXPRESS, INC., Defendant, Civil Action No. 11-2224 (D.N.J.), Judge
John Michael Vazquez of the U.S. District Court for the District of
New Jersey grants in part and denies in part the Plaintiffs' motion
to approve their form of class notice.
I. Background
The operative pleading is the Plaintiffs' Third Amended Complaint.
The Defendant is an intermodal container and chassis transport
company based in Newark, New Jersey. It contracts with steamship
lines and other customers to transport shipping containers and
chassis to and from ports, shipping terminals, and customer
locations throughout the Northeast and elsewhere in the United
States.
The Named Plaintiffs are six individuals who perform services as
owner-operator truck drivers and who leased or currently lease
their tractors to transport shipping containers and/or chassis for
the Defendant. The Defendant engages drivers, such as the
Plaintiffs, to provide transportation services pursuant to a
written lease agreement. The Plaintiffs claim that the leases
agreements violate the Truth-in-Leasing regulations, 49 C.F.R.
Section 376.1 et seq., promulgated under the Motor Carrier Act.
The parties have engaged in multiple rounds of class certification
briefing. The Plaintiffs' first motion for class certification was
mooted. On December 27, the Court granted in part and denied in
part the Plaintiffs' second motion for class certification.
The Court certified the following Rule 23(b)(2) class for
declaratory and injunctive relief regarding the alleged
Truth-in-Leasing violations: All independent owner-operators who
entered into a regulated lease with Defendant, directly or
indirectly through Defendant's agents, and whose regulated lease
was in effect at any time between April 20, 2007 through the
pendency of this action.
The Court denied the Plaintiffs' motion without prejudice with
respect to the proposed Rule 23(b)(3) class and with prejudice with
respect to the proposed Rule 23(b)(1) class. The Plaintiffs
subsequently submitted a third motion for class certification
seeking to certify a Rule 23(b)(3) class.
On Jan. 27, 2021, the Court granted in part and denied in part the
Plaintiffs' motion and certified the following Rule 23(b)(3) class:
A Rule 23(b)(3) liability class as to Plaintiffs' breach of
contract claims regarding detention time and parking space rental,
and as to Defendant's alleged violations of the Truth-In-Leasing
regulations consisting of all independent owner-operators who
entered into a regulated lease with Defendant, directly or
indirectly through Defendant's agents, and whose regulated lease
was in effect at any time between April 20, 2007 through the
pendency of this action.
On Oct. 25, 2021, Judge Clark ordered the parties to submit an
agreed-to form of class notice for the Court's approval. The
parties subsequently notified the Court that they were unable to
agree on the form of notice. The Court then ordered the Plaintiffs
to submit a motion to approve their proposed notice. The current
motion followed.
II. Analysis
A. Form of Notice
The Plaintiffs submitted their proposed class notice form, which
modifies the proposed class notice form submitted by the Defendant
on Nov. 15, 2021. They argue that their class notice form should be
approved because it is easier to understand and excludes language
intended to chill potential class members from remaining in the
case.
The Defendant contends that the Plaintiffs' Class Notice is
insufficient as it does not provide the putative class with
meaningful notice of the matter and an opportunity to exclude
themselves from the class. It also submitted a proposed form of
class notice, which incorporates some of the Plaintiffs' proposed
modifications. As a result, the Court uses the Defendant's Class
Notice as the template and addresses only those modifications that
Defendant has not accepted in its proposed form of class notice.
Judge Vazquez approves the Defendant's Class Notice, subject to
modifications. First, he holds that the Defendant's Class Notice
need not include the proposed explanatory parentheticals. Second,
he says does not remove or modify the references to the 90-day
period in the Defendant's Class Notice. Third, he requires the
following information: (1) the third-party administrator ("TPA")'s
qualifications and experience; (2) the TPA's responsibilities, such
as disseminating notice to potential class members (including all
related issues, such as the updating of outdated addresses as well
as plans to re-mail notices that are returned as undeliverable),
hosting a neutral website on which key documents will be available,
and providing a toll-free number call center; and (3) the estimated
costs for the TPA.
Fourth, Judge Vazquez modifies the language "You will be required
to provide information and documents," to the following: "If you
remain a member of the class action (by not choosing to be excluded
from it), you will be asked to provide relevant information as to
your claim." Fifth, he excludes the following language in Section
III.C of the class notice because it "was included by Ironbound to
encourage Drivers to opt-out": "You may be required to appear for
and testify at a deposition, testify at trial, and/or otherwise
actively participate in the lawsuit."
Sixth, Judge Vazquez revises the language in the second bullet
point of Section III.C to the following: "You have the right to
hire your own attorney at your own cost to represent you in this
lawsuit or to file an independent lawsuit. If you do not hire an
attorney of your own, Plaintiffs and Plaintiffs' attorneys will act
as your representatives. Additionally, if the claims in this
lawsuit are settled, you will have an opportunity to object to the
proposed settlement and you may retain your own attorney, at your
own cost, for purposes of objecting."
Finally, he rejects the Plaintiffs' modifications to the Request
for Exclusion form relating to the 90-day period and the TPA.
B. Dissemination of Notice
The Plaintiffs request that the Defendant provides the last known
physical addresses for putative class members, and the Defendant
has agreed to such request. The Plaintiffs also request that the
Court orders the Defendant to provide the email addresses of all
putative class members so that notice may be given electronically.
The Defendant states that it did not maintain the email addresses
of putative class members in the regular course of business and is
attempting to gather the email addresses in its possession.
Judge Vazquez opines that notice by first-class mail to the last
known address has been deemed adequate to meet the Rule 23(c)(2)
standard. However, he finds that the best notice practicable under
the circumstances would include notice by first-class mail and
electronic mail. Therefore, to the extent the Defendant is able to
provide the email addresses of putative class members, notice
should additionally be disseminated by email.
III. Conclusion
For the foregoing reasons, and for good cause shown, Judge Vazquez
grants in part and denies in part the Plaintiffs' motion for
approval of their class notice form. He adopts the Defendant's
Class Notice, subject to the modifications he set forth.
The Plaintiffs will have 30 days to submit the required information
as to the proposed TPA as well as a revised class notice form --
conforming to the specifications set forth in the Opinion and Order
and reflecting the use of the proposed TPA -- for final approval by
the Court.
Once the revised class notice receives final approval from the
Court, notice will be disseminated by first-class mail and, where
possible, electronic mail.
A full-text copy of the Court's June 1, 2022 Opinion & Order is
available at https://tinyurl.com/28nyujp6 from Leagle.com.
JACK IN THE BOX: Employee's Labor Suit Ongoing in CA Court
----------------------------------------------------------
Jack in the Box Inc. disclosed in its Form 10-Q Report for the
quarterly period ended April 17, 2022, filed with the Securities
and Exchange Commission on May 27, 2022, that it is facing a
purported Private Attorneys General Act claim and class action
alleging various causes of action under California's labor, wage
and hour laws filed in March 2014 by a former Del Taco employee.
Plaintiff generally alleges Del Taco did not appropriately provide
meal and rest breaks and failed to pay wages and reimburse business
expenses to its California non-exempt employees. In November 12,
2021, the court granted, in part, the plaintiff's motion for class
certification. The parties participated in a voluntary mediation on
May 24, 2022, but the matter did not settle. The company continues
to dispute liability, the standing of a majority of the class
members and plaintiff's damages calculations.
Jack in the Box Inc. is a restaurant chain based in San Diego,
California.
JACKSON COUNTY, IL: Aye Ordered to File Amended Complaint v. Jail
-----------------------------------------------------------------
In the case, SAMUEL AYE, Plaintiff v. GUPREET PAADA, et al.,
Defendants, Case No. 4:22-cv-562 JMB (E.D. Mo.), Magistrate Judge
John M. Bodenhausen of the U.S. District Court for the Eastern
District of Missouri, Eastern Division, issues a Memorandum and
Order directing the Plaintiff to submit a certified copy of his
inmate account statement, and an amended complaint on a
Court-provided form.
I. Background
The Plaintiff is an inmate currently incarnated at Jackson County
Jail in Murphysboro, Illinois. On May 16, 2022, he submitted an
application to proceed in district court without prepaying fees or
costs. This application includes an affidavit of his assets as
required by 28 U.S.C. Section 1915(a)(1). The Plaintiff has not,
however, submitted a certified copy of his Jackson County Jail
"trust fund account statement (or institutional equivalent)" for
the six-month period immediately preceding the filing of his
complaint, which is required when a prisoner seeks in forma
pauperis status. The Plaintiff must obtain the "certified copy"
from an "appropriate official" at the Jackson County Jail and
submit it to the Court within 30 days from the date of the Order.
The Plaintiff filed a complaint asserting he is bringing a federal
question action pursuant to "42 U.S.C. Section 1983, breach of
contract, gross negligence, medical malpractice, and class action
Rule 23, F.R.C.P." The complaint does not contain a caption listing
the specific defendants he intends to sue. Reading the complaint as
a whole, however, he appears to bring the action against Gupreet
Paada, M.D., Padda Law Firm, and Padda Pain Management Clinic.
In his statement of claim, the Plaintiff alleges the following:
1. 2017 Paralyzed neck down from a bulging disc in top of
spine that required surgery, that was diagnosed by chiroprator, Dr.
Padda sent me to, in 2012, by way of MRI.
2. This happened February 2017.
3. Southside Barbership located on Manchester in St. Louis
Mo.
4. Paralysis (permanent) on right side, top and lower
extremities and permanent nerve damage (serious) throughout body.
5. Dr. Padda was acknowledged, by chiroprator, of the
Plaintiff's injuries suffered, by way of MRI, and knew that the
Plaintiff needed surgery to prevent paralysis, yet Dr. Padda
disregarded all relevant facts pertaining to this particular
incident.
It is unclear from his complaint whether the Plaintiff was
incarcerated at the time he incurred his alleged injuries. For
relief, plaintiff seeks "actual damages, punitive damages,
compensatory damages, and monetary damages" in the amounts of "$5
billion" and "$15 milion."
II. Discussion
Having thoroughly reviewed and liberally construed the Plaintiff's
complaint, Judge Bodenhausen concludes that it is subject to
dismissal. However, in consideration of the Plaintiff's
self-represented status, he allows him to submit an amended
complaint. First, the complaint is defective because it does not
contain a Caption listing the specific Defendants he intends to
sue, and fails to allege how the defendant(s) were personally
responsible for the alleged violations of his constitutional
rights. Second, it appears Gupreet Paada, M.D., Padda Law Firm, and
Padda Pain Management Clinic are not state actors. Lastly, to state
a claim under Section 1983, a plaintiff must allege the violation
of a right secured by the Constitution or laws of the United
States. The Plaintiff's claims of "breach of contract, gross
negligence, and medical malpractice" are not those falling under a
violation secured by the Constitution or federal statutes.
The Plaintiff is advised that the filing of an amended complaint
completely replaces the original complaint, so it must include all
claims he wishes to bring. Any claims from the original complaint
that are not included in the amended complaint will be deemed
abandoned and will not be considered. The Plaintiff must type or
neatly print the amended complaint on a Court-provided complaint
form, and must comply with the Federal Rules of Civil Procedure.
If the Plaintiff fails to file an amended complaint on a
Court-provided form within 30 days in accordance with the
instructions set forth, the Court may dismiss the action without
prejudice and without further notice to him.
III. Conclusion
Accordingly, Judge Bodenhausen orders the Clerk of Court to mail to
the Plaintiff two blank Prisoner Civil Rights Complaint forms. The
Plaintiff may request additional forms as needed.
within 30 days of the date of the Memorandum and Order, the
Plaintiff will submit (i) an amended complaint in accordance with
the instructions set forth therein, and (ii) a certified copy of
his Jackson County Jail "trust fund account statement (or
institutional equivalent)" for the six-month period immediately
preceding the filing of the action.
Upon the filing of the amended complaint, the Court will review it
pursuant to 28 U.S.C. Section 1915.
If the Plaintiff fails to timely comply with the Memorandum and
Order, the Court will dismiss the action without prejudice and
without further notice.
A full-text copy of the Court's June 1, 2022 Memorandum & Order is
available at https://tinyurl.com/2zksappn from Leagle.com.
JOE D'AMATO: Stay on Expert Discovery Lifted in Hoeffner Suit
-------------------------------------------------------------
In the class action lawsuit captioned as RALPH HOEFFNER, ANTHONY
LONGO, ANTHONY TOMASZEWSKI and KENNETH REESE, as participants
and/or former participants of the SAND, GRAVEL, CRUSHED STONE,
ASHES and MATERIAL YARD WORKERS LOCAL UNION NO. 1175 LIUNA PENSION
FUND and WELFARE FUND, on behalf of themselves and all persons
similarly situated, v. JOE D'AMATO, FRANK OMBRES, ALEXANDER
MIUCCIO, FRANK P. DIMENNA and JOHN DOES 1-4, in their capacity as
Trustees of the SAND, GRAVEL, CRUSHED STONE, ASHES and MATERIAL
YARD WORKERS LOCAL UNION NO. 1175 LIUNA PENSION FUND and WELFARE
FUND, Case No. 1:09-cv-03160-PKC-CLP (E.D.N.Y.), the Hon. Judge
Pamela K. Chen entered an order lifting the stay on expert
discovery and directing the parties to adhere to the discovery
schedule set forth in the April 28, 2022 Docket Order.
The Court finds that Plaintiffs have Article III standing to pursue
their pension fund prejudgment-interest-adjustment claim and their
welfare fund claim.
In August 2005, Ralph Hoeffner, Anthony Longo, Anthony Tomaszweski,
and Kenneth Resse were among a group of unionized asphalt plant
workers who voted to change their collective bargaining
representatives from the Sand, Gravel, Crushed
Stone, Ashes and Material Yard Workers Local Union No. 1175 (Local
1175) to the United Plant & Production Workers Local No. 175 (Local
175).
Upon joining Local 175, the Named Plaintiffs also switched to the
pension and welfare plans associated with their new union. Since
2009, the Named Plaintiffs have been engaged in this lawsuit with
Defendants who are the trustees of Local 1175's pension and welfare
funds over whether those funds were obligated to transfer a share
of the assets to the new plans, and if so, how to accurately
calculate the amount that should be transferred.
A copy of the Court's order dated June 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3MpUz8E at no extra charge.[CC]
JUMPP LOGISTICS: Cervenka Seeks to Certify FLSA Collective
----------------------------------------------------------
In the class action lawsuit captioned as KEVIN CERVENKA v. JUMPP
LOGISTICS, LLC, ET AL., Case No. 4:21-cv-00813-SDJ (E.D. Tex.), the
Plaintiff asks the Court to enter an order certifying a collective
under 29 U.S.C. section 216(b) and sending court-authorized notice
to similarly situated workers (potential opt-in plaintiffs) defined
as:
"All individuals who worked for Defendants as delivery
drivers in Texas, were classified as independent contractors,
and compensated via a piece-rate compensation structure
within the three-year period preceding the filing of this
lawsuit."
Mr. Cervenka alleges that the Defendants violated the Fair Labor
Standards Act (FLSA) by failing to pay him and other similarly
situated workers, overtime wages as required by the FLSA for any
hours worked in excess of 40 hours in a single workweek.
The Defendants allegedly classified all their delivery drivers,
including the Plaintiff and putative opt-in plaintiffs, as
independent contractors. The Plaintiff and putative opt-in
plaintiffs were paid a set piece-rate for each delivery, regardless
of the hours worked and the time spent performing deliveries as
instructed and directed by Defendants for their customers.
The Plaintiff and Potential Class Members worked as delivery
drivers for Defendants during the relevant time period.
The Defendants are engaged in the business of providing delivery
and courier services with address verification, tracking and proof
of delivery to their customers in various industries.
A copy of the Plaintiff's motion to certify class dated June 2,
2022 is available from PacerMonitor.com at https://bit.ly/3NWq4bQ
at no extra charge.[CC]
The Plaintiff is represented by:
Drew N. Herrmann, Esq.
Pamela G. Herrmann, Esq.
HERRMANN LAW, PLLC
801 Cherry St., Suite 2365
Fort Worth, TX 76102
Telephone: (817) 479-9229
Facsimile: (817) 840-5102
E-mail: drew@herrmannlaw.com
pamela@herrmannlaw.com
- and -
Jerry Murad, Jr., Esq.
LAW OFFICE OF JERRY MURAD
P.O. Box 470067
Fort Worth, TX 76147
telephone: 817-335-5691
Facsimile: 817-870-1162
E-mail: jerrymurad@mac.com
JUUL LABS: Deceives Youth to Use E-Cigarettes, Jamestown Suit Says
------------------------------------------------------------------
JAMESTOWN CITY SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-03231 (N.D. Cal., June 2, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Jamestown City School District is a unified school district with
its offices located at 1056 Allen Street in Jamestown, New York.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: E-Cigarette Ads Target Youth, Canton Local Suit Claims
-----------------------------------------------------------------
CANTON LOCAL SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-03223 (N.D. Cal., June 2, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Canton Local School District is a unified school district with its
offices located at 600 Faircrest Street Southeast in Canton, Ohio.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Faces Steilacoom Suit Over Youth E-Cigarette Crisis
--------------------------------------------------------------
STEILACOOM HISTORICAL SCHOOL DISTRICT NO. 1, on behalf of itself
and all others similarly situated, Plaintiff v. JUUL LABS, INC.
F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER;
HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT
SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS
USA, INC., Defendants, Case No. 3:22-cv-03215 (N.D. Cal., June 2,
2022) is a class action against the Defendants for negligence,
gross negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Steilacoom Historical School District No. 1 is a unified school
district with its offices located at 511 Chambers Street in
Steilacoom, Washington.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Hornell City Suit Alleges Deceptive E-Cigarette Ads
--------------------------------------------------------------
HORNELL CITY SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-03221 (N.D. Cal., June 2, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Hornell City School District is a unified school district with its
offices located at 120 Raider Road in Hornell, New York.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Lakewood Sues Over Youth E-Cigarette Addiction in N.Y.
-----------------------------------------------------------------
LAKEWOOD SCHOOL DISTRICT #306, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-03219-WHO (N.D. Cal., June 2, 2022) is
a class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Lakewood School District #306 is a unified school district with its
offices located at 17110 16th Drive Northeast in Marysville,
Washington.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Promotes E-Cigarette Use to Youth, West Valley Alleges
-----------------------------------------------------------------
WEST VALLEY (SPOKANE) SCHOOL DISTRICT, on behalf of itself and all
others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX
LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG
HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC;
ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-03216 (N.D. Cal., June 2, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
West Valley (Spokane) School District is a unified school district
with its offices located at 2805 North Argonne Road in Millwood,
Washington.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Triggers E-Cigarette Crisis in N.Y., Maple Shade Claims
------------------------------------------------------------------
MAPLE SHADE TOWNSHIP PUBLIC SCHOOLS, on behalf of itself and all
others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX
LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG
HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC;
ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-03230 (N.D. Cal., June 2, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Maple Shade Township Public Schools is a unified school district
with its offices located at Frederick Avenue in Maple Shade, New
Jersey.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
KONINKLIJKE PHILIPS: Sterken Suit Moved From E.D. La. to W.D. Pa.
-----------------------------------------------------------------
The case styled ANGELA STERKEN, on behalf of herself and all others
similarly situated v. KONINKLIJKE PHILIPS N.V.; PHILIPS NORTH
AMERICA LLC; PHILIPS HOLDING USA, INC.; and PHILIPS RS NORTH
AMERICA LLC, Case No. 2:22-cv-01395, was transferred from the U.S.
District Court for the Eastern District of Louisiana to the U.S.
District Court for the Western District of Pennsylvania on June 2,
2022.
The Clerk of Court for the Western District of Pennsylvania
assigned Case No. 2:22-cv-00805-JFC to the proceeding.
The case arises from the Defendants' alleged strict products
liability, negligent design, negligent failure to warn, negligent
manufacturing, negligence/gross negligence, negligent
misrepresentation, fraud, fraudulent concealment, civil conspiracy,
unjust enrichment, breach of express warranties, breach of the
implied warranty of fitness for a particular purpose, breach of the
implied warranty of merchantability, and violation of the Louisiana
Trade Practices and Consumer Protection Law by manufacturing and
selling Continuous Positive Airway Pressure (CPAP) and BiLevel
Positive Airway Pressure (BiLevel PAP) devices containing
polyester-based polyurethane sound abatement foam (PE-PUR Foam),
says the suit.
Koninklijke Philips N.V. is a health technology company with its
principal executive offices at Philips Center, Amstelplein 2, 1096
BC Amsterdam, The Netherlands.
Philips North America LLC is a health technology company with its
principal place of business located at 222 Jacobs Street, Floor 3,
Cambridge, Massachusetts.
Philips Holding USA, Inc. is a company that manufactures and
distributes medical systems and lighting appliances, headquartered
in Cambridge, Massachusetts.
Philips RS North America LLC is a company that manufactures and
markets medical devices with its principal place of business
located at 6501 Living Place, Pittsburgh, Pennsylvania. [BN]
The Plaintiff is represented by:
Andrew J. Geiger, Esq.
Allan Berger, Esq.
ALLAN BERGER & ASSOCIATES
4173 Canal Street
New Orleans, LA 70119
Telephone: (504) 526-2222
Facsimile: (504) 483-8130
E-mail: ageiger@bergerlawnola.com
LIGHTWAVE LOGIC: Rosen Law Discloses Securities Class Action
------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, announces
an investigation of potential securities claims on behalf of
shareholders of Lightwave Logic, Inc. (NASDAQ: LWLG) resulting from
allegations that Lightwave Logic may have issued materially
misleading business information to the investing public.
SO WHAT: If you purchased Lightwave Logic securities you may be
entitled to compensation without payment of any out of pocket fees
or costs through a contingency fee arrangement. The Rosen Law Firm
is preparing a class action seeking recovery of investor losses.
WHAT TO DO NEXT: To join the prospective class action, go to
https://rosenlegal.com/submit-form/?case_id=6709 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
WHAT IS THIS ABOUT: On June 2, 2022, during trading hours, market
analyst Kerrisdale Capital published a report entitled "Lightwave
Logic, Inc. (LWLG): A High-Frequency Failure" which alleged, among
other things, that "[u]nderneath the façade of accomplishment . .
. . is almost nothing of substance[,]" and that "Lightwave hasn't
ever come close to commercializing anything: in the 15 years since
it's gone public, it has generated a total of about $6 thousand in
revenues, which stands in stark contrast to the steady stream of
promotional announcements celebrating overhyped prototype
completions, product tests, and patents over that time." The report
also alleged that "Lightwave's polymer 'technology' is behind the
curve and the feasibility of a manufacturing process to
commercialize it may never be achieved[.]"
On this news, Lightwave Logic's stock fell $0.99 per share, or 12%,
to close at $6.94 per share on June 2, 2022, on unusually heavy
trading volume.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Be wise in selecting counsel. The
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
Attorney Advertising. Prior results do not guarantee a similar
outcome. [GN]
MAGELLAN HEALTH: Court Narrows Claims in Griffey's 2nd Amended Suit
-------------------------------------------------------------------
In the case, Chris Griffey, et al., Plaintiffs v. Magellan Health
Incorporated, Defendant, Case No. CV-20-01282-PHX-MTL (D. Ariz.),
Judge Michael T. Liburdi of the U.S. District Court for the
District of Arizona grants in part and denies in part the
Defendant's Motion to Dismiss the Second Amended Consolidated Class
Action Complaint.
I. Background
Magellan's computer systems were hacked and a data breach occurred.
The personally identifiable information ("PII") and protected
health information ("PHI") of Magellan employees, Magellan
contractors, and Magellan-administered health care benefit plan
participants was stolen.
The Plaintiffs, in their individual capacities and as putative
class representatives, assert several claims against Magellan
arising from the data breach. They allege that Magellan failed to
implement cybersecurity safeguards outlined by the Department of
Health and Human Services' Office for Civil Rights, the Federal
Bureau of Investigation, the United States Cybersecurity &
Infrastructure Security Agency, the Microsoft Threat Protection
Intelligence Team, the University of Illinois Chicago, and the
Center for Internet Security.
These security safeguards include, but are not limited to:
encrypting PII and PHI, educating and training employees,
"correcting the configuration of software and network devices,"
enabling strong spam filters, scanning incoming and outgoing
emails, patching operating systems, configuring firewalls, "setting
anti-virus and anti-malware programs to conduct regular scans
automatically," managing privileged accounts, "configuring access
controls with least privilege in mind," and "disabling macro
scripts from office files transmitted via email."
Additionally, the Plaintiffs allege that Magellan "failed to
monitor ingress and ingress network traffic; maintain an inventory
of public facing ips; monitor elevated privileges; equip its server
with anti-virus or anti-malware; and employ basic file integrity
monitoring."
The Second Amended Complaint posits that "the occurrence of the
Data Breach indicates that Defendant failed to adequately implement
one or more of the above measures to prevent ransomware attacks."
The Plaintiffs also allege that Magellan "failed to meet the
minimum standards of the cybersecurity frameworks which are
established standards in reasonable cybersecurity readiness."
The Second Amended Complaint also alleges that Magellan has not
provided an adequate credit monitoring service since the data
breach. The Plaintiffs allege that the service that Magellan offers
does not provide alerts for or monitor whether a Plaintiff's
personal information appears on the dark web or service and credit
applications. They also allege that it does not provide alerts or
monitor for a USPS address change verification or fake personal
information connected to a person's identity. Additionally, they
allege that it does not offer "identity theft monitoring and
protection." Finally, Plaintiffs allege that the services offered
by Magellan "failed to provide for the fact that victims of Data
Breaches and other unauthorized disclosures commonly face multiple
years of ongoing identity theft and financial fraud."
The Court previously granted a motion to dismiss with leave to
amend. Magellan has filed a Motion to Dismiss the Second Amended
Consolidated Class Action Complaint arguing that (1) the Plaintiffs
have not alleged a cognizable loss on their negligence and consumer
protection claims and (2) the Plaintiffs' unjust enrichment claims
and their various state law claims do not adequately allege "how
Magellan's data security was inadequate."
II. Discussion
A. Negligence
To establish a defendant's liability for a negligence claim, a
plaintiff must prove: (1) a duty requiring the defendant to conform
to a certain standard of care; (2) breach of that standard; (3) a
causal connection between the breach and the resulting injury; and
(4) actual damages.
As before, Plaintiffs Culberson, Rayam, Leather, Williams, Ranson,
Flanders, and Lewis allege that "Magellan had a duty of care to use
reasonable means to secure and safeguard its computer property --
and Class Members' PII and PHI held within it -- to prevent
disclosure of the information, and to safeguard the information
from theft." They also allege that this "duty included a
responsibility to implement processes by which it could detect a
breach of its security systems in a reasonably expeditious period
and to give prompt notice to those affected in the case of a Data
Breach." Magellan does not contest the Plaintiffs' allegations
regarding duty and breach; it does argue that the Plaintiffs
improperly alleged causation and damages.
Based on the allegations in the Second Amended Complaint, Judge
Liburdi finds that the causal relationship between her injuries and
Magellan's inadequate data security can be reasonably inferred:
Magellan's data security was inadequate, a data breach occurred,
and her injuries began. Magellan's only argument to break this
chain of causation is that its data security was adequate. But at
this early stage, Magellan's argument constitutes an improper
factual assertion. Because the Plaintiffs have properly pleaded
that Magellan's data security was inadequate, the Court concludes
that Culberson's allegations properly plead causation. And so,
every Plaintiff who alleged a negligence claim in the Second
Amended Complaint has pleaded sufficient facts to establish
causation.
Judge Liburdi also finds that Leather, Ranson, Flanders, and Lewis
have adequately alleged a cognizable negligence claim. Leather,
Ranson, Flanders, and Lewis' negligence claims will not be
dismissed. Conversely, Culberson, Rayam, and Williams have not
alleged a cognizable negligence claim; and so, their claims will be
dismissed.
B. Unjust Enrichment
Each plaintiff asserts an unjust enrichment claim against Magellan.
Under Arizona law, "an unjust enrichment claim requires proof of
'(1) an enrichment, (2) an impoverishment, (3) a connection between
the enrichment and impoverishment, (4) the absence of justification
for the enrichment and impoverishment, and (5) the absence of a
remedy provided by law.'" The Court previously dismissed all of the
unjust enrichment claims because the Plaintiffs' First Amended
Consolidated Class Action Complaint failed to sufficiently allege
that Magellan's data security systems were inadequate to withstand
a data breach incident.
The Plaintiffs have augmented their factual allegations to include
additional detail explaining their general theory of liability.
Magellan renews its motion to dismiss the unjust enrichment claims,
arguing that the claims still fail at the pleading stage because
"Plaintiffs concede that they did not pay anything to Magellan.
Accordingly, Magellan could not have been enriched at the
Plaintiffs' expense."
Judge Liburdi generally finds the unjust enrichment theory dubious.
In short, the Motion to Dismiss Plaintiffs' unjust enrichment
claims is granted in part. Those Plaintiffs who are part of the
health plan participants group and whose costs were paid by others
are dismissed: Laura Leather, Joseph Rivera, and Teresa Culberson.
Keith Lewis' claim is dismissed for failing to properly allege
enrichment. For all other Plaintiffs, the Motion is denied.
C. California Consumer Protection Act ("California CPA")
The California CPA allows for the recovery of statutory damages. To
recover such damages, consumers must first provide 30-days' written
notice to the business from which they are trying to collect
statutory damages before initiating litigation.
Judge Liburdi finds that Ranson failed to allege that he provided
notice as required by the California CPA. If a notice filed before
the 30-day deadline could be updated when an amended complaint is
filed and satisfy the 30-day notice requirement, then having the
pre-suit notice requirement would be pointless. Ranson alleges that
he gave notice on Dec. 8, 2020, three days before filing his
California CPA claim. He cannot supplement the time between the
notice and the initiation of the lawsuit by amending his complaint.
Clearly, he failed to satisfy the 30-day notice requirement. The
California CPA claim is dismissed with prejudice.
D. Florida Unfair and Deceptive Trade Practices Act ("Florida
DUTPA")
Mr. Lewis, a Florida resident, alleges that Magellan violated the
Florida DUTPA. Specifically, that Magellan "engaged in deceptive,
unfair, and unlawful trade acts or practices in the conduct of
trade or commerce, in violation of Fla. Stat. Section 501.204(1)"
and "Fla. Stat. Section 501.171(2)" by disseminating the Notice of
Privacy Practices in Florida. He also alleges that these
misrepresentations "substantially injured" him.
A claim for damages under the Florida DUTPA has three elements: (1)
a deceptive act or unfair practice; (2) causation; and (3) actual
damages.'" Magellan argues that Lewis' Florida DUTPA claims fail
because he is not a consumer. (Doc. 41 at 13.) Magellan also argues
that, even if Lewis need not have been a consumer to assert a
Florida DUTPA claim, he "must still allege that a consumer was
injured." Next, Magellan argues that Lewis has failed to allege
that he suffered a "cognizable loss" or that any consumer suffered
a "consumer injury." Finally, it argues that Lewis' allegations
amount to an extraterritorial application of the Florida DUTPA.
Judge Liburdi holds that the Florida DUTPA does not apply
extraterritorially. Magellan's allegedly deceptive or unfair action
was the dissemination of the Notice of Privacy Practices to Lewis
in his home state of Florida. As the Court explained, Lewis has
properly pleaded that the Notice was deceptive and its
dissemination qualifies as an alleged violation of the Florida
DUPTA. Thus, Judge Liburdi finds that Lewis has not pleaded an
extraterritorial application of the Florida DUTPA. And so, Lewis
has properly alleged a Florida DUTPA claim on behalf of himself and
the putative subclass.
E. New York General Business Law Section 349
Ms. Leather, a New York resident, contends that she sufficiently
pleads a violation of Section 349 in the Second Amended Complaint.
She asserts that the representations made by Magellan about the
reliability of its data security systems constitute a Section 349
violation. Magellan's Motion to Dismiss challenges Leather's
alleged injury on the grounds that she has (1) not sufficiently
alleged a cognizable loss, (2) alleged an improper extraterritorial
application of Section 349, (3) not sufficiently alleged how
Magellan's notice was false or misleading, (4) not sufficiently
alleged that Magellan's data security was inadequate, and (5) not
sufficiently alleged that Magellan's complimentary
credit-monitoring services were insufficient. The Court has already
decided that the Plaintiffs have properly alleged that Magellan's
data security was inadequate and that Magellan's complimentary
credit-monitoring services were insufficient; those arguments will
not be revisited.
Judge Liburdi finds that (i) the information provided in the Notice
allegedly deceived her into thinking that Magellan had adequate
data security; (ii) Leather has properly alleged that the notice
that Magellan disseminated was a materially misleading statement;
and (iii) Leather has properly alleged that Magellan's Notice was
an inaccurate representation which induced her to continue to pay
for its health service and has sufficiently alleged a Section 349
claim to survive a motion to dismiss.
F. Remaining Statutory Claims
Plaintiffs Domingo, Rivera, and Ranson allege that Magellan
violated several state consumer protection statutes: Pennsylvania's
Unfair Trade Practices and Consumer Protection Law ("Pennsylvania
CPL"), Wisconsin's Deceptive Trade Practices Act ("Wisconsin
DTPA"), and California's Unfair Competition Law ("California UCL").
Magellan argues that the Plaintiffs' Pennsylvania CPL, Wisconsin
DTPA, and California UCL claims have failed to allege a cognizable
loss. It also argues that Ranson asserts an impermissible
extraterritorial application of the California UCL.
Judge Liburdi holds that (i) because "only those who can meet the
requirements of the Pennsylvania CPL private cause of action may
bring a personal action, and Domingo's allegations simply do not
satisfy the statutory 'ascertainable loss' element," his
Pennsylvania CPL claims are dismissed; (ii) because Rivera's only
conceivable claim for damages involves unknown future injuries and
lost time, and neither are pecuniary because neither involve
monetary loss, Rivera's Wisconsin DTPA claims do not articulate a
cognizable loss and are dismissed; (iii) Ranson has sufficiently
alleged a cognizable loss to sustain his California UCL claims; and
(iv) Ranson has properly pleaded that those statements were
misrepresentations because he has sufficiently alleged that
Magellan's data security systems were inadequate.
G. Rule 9(b)
Magellan argues that the Plaintiffs have not sufficiently alleged
the "'when, where, and how' the alleged misconduct occurred" to
meet Rule 9(b)'s heightened pleading standard. Plaintiffs Ranson,
Leather, and Lewis argue that the Second Amended Complaint properly
specifies that Magellan's statements in the Notice of Privacy
Practices, which was disseminated in their home states, were the
misrepresentations on which their California UCL, New York GBL
Section 349, and Florida DUTPA causes of action are predicated.
Judge Liburdi concludes that Ranson, Leather, and Lewis have
articulated "the who, what, when, where, and how of the misconduct
charged, as well as what is false or misleading about the
purportedly fraudulent statement, and why it is false." They allege
that Magellan ("who") made statements in its Notice of Privacy
Practices ("what") "when" it disseminated the Notice to Ranson,
Leather, and Lewis in California, New York, and Florida ("where").
The Court has already decided that they have properly alleged that
those statements were false or misleading because, contrary to its
representations in the Notice of Privacy Practices, Magellan's data
security systems were inadequate. Thus, Ranson, Leather, and Lewis
have met the Rule 9(b) pleading standard for their California UCL,
New York GBL Section 349, and Florida DUTPA claims.
H. Leave to Amend
The Plaintiffs have not requested leave to amend. Additionally,
they have been afforded multiple opportunities to amend their
claims. In the abstract, granting leave to amend would not be
futile because a set of facts could be alleged that would
constitute a valid, specific, and properly pleaded negligence,
unjust enrichment, California CPA, Pennsylvania CPL, and Wisconsin
DTPA claim. But in practice, given the Plaintiffs' multiple
opportunities to properly plead these claims, it is clear why they
have not requested leave to amend: the facts necessary to properly
plead these claims do not exist. Accordingly, leave to amend will
not be granted because it would be futile.
III. Conclusion
Accordingly, Judge Liburdi grants in part and denies in the Motion
to Dismiss. Plaintiffs Culberson, Rayam, Williams, and their
similarly situated putative class members' negligence claims are
dismissed with prejudice. Plaintiffs Leather, Ranson, Flanders,
Lewis, and their similarly situated putative class members'
negligence claims will remain.
Plaintiffs Leather, Rivera, Lewis, and Culberson's unjust
enrichment claims are dismissed with prejudice. Plaintiffs Ranson,
Domingo, Griffey, Rayam, Williams, and Flanders' unjust enrichment
claims will remain.
Regarding the California Consumer Privacy Act, the Pennsylvania
Unfair Trade Practices and Consumer Protection Law, and the
Wisconsin Deceptive Trade Practices Act causes of action, the
Motion is granted. Causes of Action Four, Six, and Seven are
dismissed, with prejudice.
Finally, with regard to all other causes of action, the Motion to
Dismiss is denied. Those causes of action will remain.
A full-text copy of the Court's June 1, 2022 Order is available at
https://tinyurl.com/swk99juk from Leagle.com.
MASTERCARD INC: Small Businesses Can Claim Up to $600 in Settlement
-------------------------------------------------------------------
businessexaminer.ca reports that small businesses that have been
accepting Mastercard and/or Visa credit cards as payment for the
last two decades could receive a portion of a recent
multimillion-dollar class action settlement with Visa and
Mastercard. The settlement is another small step toward ensuring
fairness for many small businesses that have been dealing with
expensive credit card processing fees, says the Canadian Federation
of Independent Business (CFIB).
"Many business owners find dealing with credit card fees
unnecessarily confusing and it is almost impossible to compare
rates between different processors. Small merchants have been
bearing the cost of premium cards, while the industry restricts
their right to surcharge or refuse those cards," said Corinne
Pohlmann, Senior Vice-President of National Affairs at CFIB. "The
class action settlement is an important win for small businesses
and any financial relief at this challenging time is welcome
news."
Settlement puts money back in small merchants' pockets
The portion of the settlement a business can receive depends on its
size and average annual revenue. Small merchants with an annual
revenue of less than $5 million may claim $30 per year they
incurred merchant discount fees between 2001 and 2021, for a
maximum total of $600. Businesses have until September 30 to
register.
The pandemic has exacerbated the shift from cash payments to online
or e-commerce tools, with 92% of businesses now accepting
debit/credit cards as payment.
The accelerated growth in online payments and their associated
costs have significantly impacted small firms throughout the
pandemic. Due to pandemic-related lockdowns and restrictions, the
use of cash plummeted as sales shifted to credit cards -
particularly tap and more expensive e-commerce transactions.
Merchants will have the power to add surcharges starting in October
2022
Under the settlement, Mastercard and Visa will also modify their
surcharging rules, allowing small businesses to choose to pass on
their merchant credit card fees to customers. This change is
expected to come in effect in October 2022.
"For more than a decade, CFIB has been fighting to ensure small
businesses are treated fairly and transparently by the credit card
industry. While very few merchants are expected to add surcharges
for card acceptance, we believe the power to do so will give them
additional clout in pushing back against future fee hikes," said
Dan Kelly, CFIB president.
In addition to these changes, CFIB is actively lobbying government
to deliver on its 2021 election commitment to lower ongoing credit
card processing fees for small business.
"With pressure on almost every line in a small business budget,
further relief on payments processing fees is urgently needed,"
Kelly concluded.
Find more information about the settlement, eligibility and how to
claim a portion of the settlement, visit
https://cfib.ca/classaction [GN]
MASTRONARDI PRODUCE: Faces Suit Over Worker Safety Laws Violations
------------------------------------------------------------------
David Collins at lawstreetmedia.com reports that migrant workers
Benjamin Lopez, Oscar Carlos Lopez Ramirez, and Ramona Reyes
Saucedo filed a class action complaint in the Western District of
Michigan against Mastronardi Produce-USA Inc. and Maroa Farms, Inc.
for allegedly violating worker safety laws by exposing them to
harmful pesticides, as well as failure to pay overtime wages.
The defendants own and operate the Coldwater greenhouse, where the
plaintiffs previously worked cultivating Mastronardi's crops.
According to the complaint, the defendants controlled the
environment inside of the facility strictly including "the
temperature, humidity, light, and air quality," when the plaintiffs
could enter the facility, what clothes they wore, production
numbers for each employee, which pesticides were used, and
maintaining the protective equipment given to workers according to
the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
In late 2020, the defendants supposedly started fingerprinting
workers and requesting them to spray pesticide more frequently to
stop the breakout of a tomato virus. The complaint said they used
Virkon S, which "can cause serious eye damages, skin irritation and
respiratory irritation" and requires extra protective gear to keep
workers safe. As the spraying of pesticides continued, workers were
allegedly not given face shields, masks and protective garments to
prevent Virkon S from getting onto their skin, and the facility was
not properly aerated.
One plaintiff claimed that they were told "to remove the label from
Virkon S and replace it with a different product because food
safety inspectors were coming and they did not want them to see the
Virkon label." The workers eventually suffered massive headaches,
nosebleeds and other injuries as a result, according to the
complaint.
The putative class is suing on the counts of violations of the
Migrant and Seasonal Agricultural Worker Protection Act, FIFRA
Worker Protection Standards, the Michigan Occupational Safety and
Health Act, Fair Labor Standard Act, Improved Workforce Opportunity
Wage Act; breach of contract; and unjust enrichment.
The plaintiffs are seeking class certification, declaratory relief,
statutory damages, actual damages, punitive damages, liquidated
damages, attorney's fees and costs, and other relief.
The plaintiffs are represented by Michigan Immigrant Rights Center
and Farmworker Justice. [GN]
MAZDA MOTOR: Sonneveldt, et al., Seek to Certify Classes
--------------------------------------------------------
In the class action lawsuit captioned as TERRY SONNEVELDT, ESTHER
WRIGHT SCHNEIDER, BRIAN HUME, AMIE LEVASSEUR, JEAN LEVASSEUR,
CHRISTOPHER LACASSE, BETH PICKERD, DAN PICKERD, TIM HALWAS, ERIN
MATHENY, LEWIS DELVECCHIO, JON SOWARDS, LAWRENCE BOHANA, MONIKA
BOHANA, DAVID DENNIS, and JACQUELINE S. ASLAN, on behalf of
themselves and all others similarly situated, v. MAZDA MOTOR OF
AMERICA, INC. D/B/A MAZDA NORTH AMERICAN OPERATIONS and MAZDA MOTOR
CORPORATION, Case No. 8:19-cv-01298-JLS-KES (C.D. Cal.), the
Plaintiffs ask the Court to enter an order:
1. certifying the following Classes under Federal Rules of
Civil Procedure 12 23(a) and (b)(3):
California Class
"All persons who purchased a Class Vehicle from an
authorized Mazda dealership in the State of California for
personal, family, or household purposes;"
Song-Beverly Class
"All persons who purchased a new Class Vehicle from an
authorized Mazda dealership in the State of California for
personal, family, or household purposes;"
Louisiana Class
"All persons who purchased a Class Vehicle from an
authorized Mazda dealership in the State of Louisiana;"
Massachusetts Class
"All persons who purchased a Class Vehicle from an
authorized Mazda dealership in the State of Massachusetts
for personal, family, or household purposes;"
Michigan Class
"All persons who purchased a Class Vehicle in the State of
Michigan for personal, family, or household purposes;"
Missouri Class
"All persons who purchased a Class Vehicle in the State of
Missouri for personal, family, or household purposes;"
North Carolina Class:
"All persons who purchased a Class Vehicle in the State of
North Carolina;"
Ohio Class
"All persons who purchased a Class Vehicle from an
authorized Mazda dealership in the State of Ohio;"
Texas Class
"All persons who purchased a Class Vehicle from an
authorized Mazda dealership in the State of Texas;"
Virginia Class
"All persons who purchased a Class Vehicle in the State of
Virginia for personal, family, or household purposes;"
2. Appointing the following Plaintiffs to serve as Class
Representatives:
-- Schneider and Bohana representing the California Class;
-- Bohana representing the Song-Beverly Class;
-- Hume representing the Louisiana Class;
-- Dennis representing the Ohio Class;
Levasseur representing the Massachusetts Class;
-- Sonneveldt representing the Michigan Class;
-- Aslan representing the Missouri Class;
-- Lacasse representing the North Carolina Class;
-- Halwas and Matheny representing the Texas Class; and
-- Sowards and Delvecchio representing the 8 Class; and
3. Appointing Kessler Topaz Meltzer & Check, LLP, Robbins
Geller Rudman & Dowd LLP, and The Miller Law Firm and
Kiesel Law as Class Counsel under Federal Rule of Civil
Procedure 23(g).
Mazda North American Operations, which includes Mazda Motor of
America, Inc., is Mazda Motor Corporation's North American arm, and
constitutes the largest component of that company outside Japan.
The company has its headquarters in Irvine, California and is
headed by Masahiro Moro.
A copy of the Plaintiffs' motion dated June 2, 2022 is available
from PacerMonitor.com at https://bit.ly/3axk4YH at no extra
charge.[CC]
The Plaintiffs are represented by:
Melissa L. Troutner, Esq.
Joseph H. Meltzer, Esq.
Melissa L. Troutner, Esq.
Tyler S. Graden, Esq.
Jordan E. Jacobson, Esq.
KESSLER TOPAZ
MELTZER & CHECK, LLP
280 King of Prussia Road
Radnor, PA 19087
Telephone: (610) 667-7706
Facsimile: (610) 667-7056
E-mail: jmeltzer@ktmc.com
mtroutner@ktmc.com
tgraden@ktmc.com
jjacobson@ktmc.com
- and -
Paul R. Kiesel, Esq.
Jeffrey A. Koncius, Esq.
Cherisse H. Cleofe, Esq.
KIESEL LAW LLP
8648 Wilshire Boulevard
Beverly Hills, CA 90211-2910
Telephone: (310) 854-4444
Facsimile: (310) 854-0812
E-mail: kiesel@kiesel.law
koncius@kiesel.law
cleofe@kiesel.law
- and -
Robert M. Rothman, Esq.
Francis P. Karam, Esq.
Philip T. Merenda, Esq.
ROBBINS GELLER
RUDMAN & DOWD LLP
58 South Service Road, Suite 200
Melville, NY 11747
Telephone: (631) 367-7100
Facsimile: (631) 367-1173
E-mail: rrothman@rgrdlaw.com
fkaram@rgrdlaw.com
pmerenda@rgrdlaw.com
- and -
Sharon S. Almonrode, Esq.
11 E. Powell Miller
THE MILLER LAW FIRM, P.C.
Miller Building
950 West University Drive, Suite 300
Rochester, MI 48307
Telephone: (248) 841-2200
Facsimile: (248) 652-2852
E-mail: epm@miller.law
ssa@miller.law
- and -
John C. Goodson, Esq.
Matt Keil, Esq.
KEIL & GOODSON P.A.
406 Walnut Street
Texarkana, AR 71854
Telephone: (870) 772-4113
Facsimile: (870) 773-2967
E-mail: jgoodson@kglawfirm.com
mkeil@kglawfirm.com
- and -
Robert H. Edwards, Esq.
THE EDWARDS FIRM, P.L.L.C.
711 West Third Street
Little Rock, AR 72201
Telephone: (501) 372-1329
E-mail: bob@bobedwardslaw.com
MICROSOFT CORP: Faces Suit Over Biometric Privacy Law Violations
----------------------------------------------------------------
Abraham Jewett at topclassactions.com reports that the Photos
application on Microsoft's Windows 10 and Windows 11 operating
systems obtains the facial biometric data of Illinois residents
without their consent, violating biometric privacy law, a new class
action lawsuit alleges.
Plaintiff Pasinee Bhavilai claims Microsoft fails to follow
guidelines set by the Illinois Biometric Information Privacy Act
(BIPA) while using facial recognition technology to capture the
facial biometrics of Photos users.
"While Defendant's Photos application obtains the facial biometrics
of Illinois residents such as Plaintiff from computers located in
Illinois, Defendant has failed to comply with BIPA's regulations
and does not obtain individuals' consent to gather their facial
biometrics," the Microsoft class action states.
Microsoft uses facial recognition technology to "determine whether
there was a person in the image" and, if so, what the person was
doing in it, according to the Microsoft class action.
Bhavilai claims Microsoft violates BIPA by not informing Photos
users in writing that it collects their biometric information and
failing to receive written consent to do so.
Further, Bhavilai claims Microsoft fails to inform users why it
collects biometric information and publish a retention policy
detailing how it plans to permanently destroy it.
Bhavilai demands a jury trial and requests declaratory and
injunctive relief along with statutory damages for himself and all
class members.
Bhavilai wants to represent an Illinois class of individuals who
have had their biometric identifiers captured, stored, transmitted,
collected, disseminated or otherwise used by Microsoft.
Consumers filed a similar class action lawsuit against Snap Inc.
earlier this month over claims the company violates certain
Snapchat users' biometric privacy rights. [GN]
NATIONWIDE MUTUAL: Preliminary Pretrial Order Entered in Sweeney
----------------------------------------------------------------
In the class action lawsuit captioned as RYAN SWEENEY, et al., v.
NATIONWIDE MUTUAL INSURANCE COMPANY, et al., Case No.
2:20-cv-01569-JLG-CMV (S.D. Ohio), the Hon. Judge Chelsey M.
Vascura entered a preliminary pretrial order as follows:
-- The parties have agreed to make June 30, 2022
initial disclosures by:
-- Amendments to Pleadings and/or November 30, 2022
Joinder of Parties Motions or
stipulations addressing the parties
or pleadings, if any, must be filed
no later than:
-- The Plaintiffs' motion for class January 31, 2023
certification shall be filed by:
-- Primary expert reports, if any, May 15, 2023
must be produced by:
-- Rebuttal expert reports, if any, June 15, 2023
must be produced by:
-- Expert discovery deadline will be: July 16, 2023
-- All discovery shall be completed April 15, 2023
by:
-- Case dispositive motions must be August 16, 2023
filed by:
-- The Plaintiff shall make a May 1, 2023
settlement demand by:
-- The Defendants shall respond by: June 1, 2023
The Plaintiffs are former employees of Nationwide Mutual Insurance
Company and participants of the Nationwide Savings Plan (the
"Plan"), a 401(k) plan sponsored by Nationwide for its employees.
The Plaintiffs bring this class action on behalf of the Plan and
Plan participants pursuant to 29 U.S.C. section 1132(a)(2) and (3)
for breach of fiduciary duty allegedly arising out of Defendants'
use of an affiliated investment product ("The Fund") that produced
worse investment returns than other available products from
unaffiliated companies, and for which Defendants received
unreasonable compensation from the Plan. The Defendants deny
Plaintiff's allegations.
Nationwide is a group of large U.S. insurance and financial
services companies based in Columbus, Ohio.
A copy of the Court's order dated June 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3x9R3tt at no extra charge.[CC]
NEW ORLEANS, LA: Court Answers Certified Question in Lafaye Suit
----------------------------------------------------------------
In the case, Susan Lafaye, Lisa Picone, Inez Victorian,
Plaintiffs-Appellees v. City of New Orleans, Defendant-Appellant,
Case No. 21-30358 (5th Cir.), Judge Jerry E. Smith, writing for the
U.S. Court of Appeals for the Fifth Circuit, answers in the
negative the certified question whether the failure to comply with
a state court judgment may be construed as a taking.
I. Background
Since 2019, the Plaintiffs have been waiting for the City of New
Orleans to return traffic fines that it illegally collected from
them between 2008 and 2010. They will have to keep waiting. The
Plaintiffs allege a taking based on the city's failure to honor a
judgment of the Louisiana state courts.
In 2008, the city implemented a program called the Automated
Traffic Enforcement System ("ATES"), which used mail to collect
fines for traffic violations captured by street cameras. It was
initially administered not by the New Orleans Police Department but
by the city's Department of Public Works ("DPW").
In 2010, a group of plaintiffs brought a class action challenging
the legality of ATES. Later that year, a state court preliminarily
enjoined the program, determining that, under state law, the city
likely had no authority to delegate ATES enforcement authority to
the DPW. In response, the city amended the program to transfer
enforcement to the police department.
That solved the problem of ATES' legality but left the question of
what would become of the fines that had been collected by the DPW
in the meantime. In 2018, the Louisiana trial court resolved that
issue in favor of the plaintiffs, ordering the city to "immediately
refund" the relevant fines and fees. The Court of Appeal affirmed,
McMahon v. City of New Orleans, 2018-0842 280 (La. App. 4 Cir.
9/4/19); 280 So.3d 796, noting that ATES was "void ab initio" and
that the plaintiffs were therefore entitled to reimbursement of the
fines exacted before it was cured in 2010. The Louisiana Supreme
Court denied certiorari.
New Orleans still has not reimbursed the fines. Two days after the
denial of certiorari, the city issued a statement promising to pay
"subject to an appropriation," as it does with all court judgments.
But the amount, totaling $35 million (including $10 million in
interest) at the time of judgment, is substantial, and New Orleans
tends to be less than prompt in the payment of judgments. At oral
argument, counsel for the city stated that the city's unpaid
judgments stretch back "over a decade."
Hoping to avoid that wait, the Plaintiffs brought the instant
action in the Eastern District of Louisiana on Jan. 6, 2020, some
six weeks after the denial of certiorari. They alleged that the
city had violated the Fifth and Fourteenth Amendments by
confiscating their property and keeping it without just
compensation. Under the Plaintiffs' theory, the taking arose not
when their money was initially confiscated, but instead when the
city refused to return that money immediately in response to the
final judgment in McMahon.
New Orleans moved to dismiss for failure to state a claim. It
maintained that civil fines, such as those imposed by ATES, are not
takings, and it also raised several procedural arguments that are
not now before us. The district court, however, disagreed. It
denied the motion to dismiss, concluding that the Plaintiffs had
properly stated a 42 U.S.C. Section 1983 claim against the city.
New Orleans brought an interlocutory appeal under 28 U.S.C. Section
1292(b). It certified one question, which the Fifth Circuit now
addresses: whether the failure to comply with a state court
judgment may be construed as a taking.
II. Analysis
The Fifth Amendment, incorporated against the states by the
Fourteenth, provides that "private property will not be taken for
public use, without just compensation." The precise scope of what
constitutes a taking is often disputed, but courts have articulated
several principles relevant to the Plaintiffs' theory.
First, takings are generally effected through the power of eminent
domain. In the case, New Orleans acquired the Plaintiffs' money not
through eminent domain nor through any other lawful power, but
rather through ultra vires implementation of ATES. That posture
makes the case unlike prototypical takings actions.
The illegal nature of ATES also presents a more serious problem. A
second key feature of takings is that, when properly compensated,
they are entirely lawful. An exaction of money that is completely
unlawful, whether compensated or not, is not a taking. Moreover,
the Plaintiffs' taking theory suffers from a logical contradiction.
They conceive of the city as "taking" their money in 2019, even
when that money had been in the city's possession since 2010 at the
latest. And they insist that the city's conduct from 2008 to 2010
was necessary to effect a taking that did not actually arise until
2019. Such a theory sits uneasily with a linear conception of time
and is not rooted in the text of the Fifth Amendment.
The Plaintiffs' argument to the contrary rests primarily on Vogt v.
Board of Commissioners, 294 F.3d 684 (5th Cir. 2002). That case
concerned land that had been expropriated from private owners to
build a spillway. In 1984, Louisiana passed a statute requiring the
return of the lands; the levee board nonetheless dragged its feet
until 1991, meanwhile collecting royalties from mineral interests
in the land. Louisiana courts then ordered the levee board to hand
over the value of the royalties it had gained between 1984 and
1991. The board failed to do so. The landowners deemed that failure
a taking, while the board contended that the dispute was "merely an
attempt to execute the judgment of the state courts." A panel of
the Fifth Circuit did not reach the takings issue, but it did
reject the board's theory.
The Plaintiffs maintain that Vogt is similar to the case, but the
parallels they point to are superficial. Vogt thus provides little
help to them. The Plaintiffs do not -- and could not -- argue that
the extraction of fines under ATES was a taking. Thus, despite
Vogt, they are left with no plausible allegation that the city has
effected a taking of their property.
III. Disposition
The Fifth Circuit concludes that the failure to honor a judgment
does not constitute a taking -- even when that judgment calls for
the return of personal property acquired by a government
unlawfully. It answers the certified question in the negative and
remands for further proceedings.
A full-text copy of the Court's June 1, 2022 Order is available at
https://tinyurl.com/2p8a4jk8 from Leagle.com.
NOMI HEALTH: Fails to Pay Proper Wages, Eltahir Suit Alleges
------------------------------------------------------------
ALAA ELTAHIR, individually and on behalf of all others similarly
situated, Plaintiff v. NOMI HEALTH, INC.; MEDIX STAFFING INC.; MARK
NEWMAN;JOSHUA WALKER; DANIEL SCHWENDIMAN; and DOES 1 through 100,
Defendants, Case No. 0:22-cv-61046-XXXX (S.D. Fla., June 2, 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 Eltahir was employed by the Defendants as nurse.
NOMI HEALTH, INC. provides staffing and workforce solutions. [BN]
The Plaintiff is represented by:
A. Andrew Obeidy, Esq.
OBEIDY & ASSOCIATES, P.A.
2755 E Oakland Park Blvd #225
Fort Lauderdale, FL 33306
Telephone: (305) 892-5454
OSMOSE UTILITIES: Hodges Seeks FLSA Conditional Certification
-------------------------------------------------------------
In the class action lawsuit captioned as DESMOND HODGES,
individually, and on behalf of all others similarly situated, v.
OSMOSE UTILITIES SERVICES, INC., Case No. 3:21-cv-00041-TCB (N.D.
Ga.), the Plaintiff asks the Court to enter an order granting
conditional certification so litigation may proceed in an orderly
manner.
The Plaintiffs are workers who labor from dawn to dusk to maintain
vital telecommunication pole across this vast country. Overwhelming
testimonial and documentary proof show that these workers are being
systemically shorted pay by the Defendant's illegal nationwide
policy to not pay for indispensable work duties, unless its
performed at a job site.
The Fair Labor Standards Act (the FLSA) and relevant case law
provide that employees must be paid for time spent performing work
integral to their principal activity, and for time traveling
between the places at which they perform such work. Defendant's
unlawful policy, as seen in its own Foreman's Manual and
corroborated by Crew Members and, tellingly, their supervising
Foremen, is to not pay Crew Members for spent (1) travelling
between their residences and motels and/or job sites; (2)
performing work at the motel and then travelling to the job site;
and/or (3) travelling from the job site to the motel and then
performing work at the motel.
At their overnight motels, Crew Members are forced to perform
off-the-clock work that is essential to their job, including
gathering necessary equipment, maintaining company vehicles, and
journeying among distant locations. The Defendant knows that Crew
Members perform uncompensated work away from and even at the job
sites, but failed to remedy its continuous violations of the law,
the lawsuit says.
Osmose is a nationwide leader in contract utility work.
A copy of the Plaintiff's motion dated June 2, 2022 is available
from PacerMonitor.com at https://bit.ly/3MDKB3X at no extra
charge.[CC]
The Plaintiff is represented by:
Jason T. Brown, Esq.
Nicholas Conlon, Esq.
BROWN, LLC
111 Town Square Place, Suite 400
Jersey City, NJ 07310
Telephone: (877) 561-0000
Facsimile: (855) 582-5297
E-mail: jtb@jtblawgroup.com
nicholasconlon@jtblawgroup.com
- and -
Roger Orlando, Esq.
THE ORLANDO FIRM, P.C.
315 West Ponce De Leon Avenue, Suite 400
Decatur, GA 30030
Telephone: (404) 373-1800
Facsimile: (404) 373-6999
E-mail: roger@orlandofirm.com
PARKER-HANNIFIN: Fails to Secure Customers' Info, Doe Suit Says
---------------------------------------------------------------
JOHN DOE, individually and on behalf of all others similarly
situated, Plaintiff v. PARKER-HANNIFIN CORPORATION; and DOES 1
through 10, Defendants, Case No. 4:22-cv-03235-YGR (N.D. Cal., June
2, 2022) is a class action arising from the Defendants' failure to
adequately secure the Personal Information and Medical Information
of the Plaintiff and all others similarly situated who are current
residents and citizens of California.
The Plaintiff alleges in the complaint that the Defendant
negligently created, maintained, preserved, and stored on its
computer systems the Plaintiff's and Class members' personally
individually identifiable Personal Information and Medical
Information. The personal information that may have been accessed
and taken includes the Defendants and its subsidiaries employees'
full names, Social Security numbers, dates of birth, addresses,
driver's license numbers, U.S. passport numbers, bank account and
routing numbers, online usernames and passwords ("Personal
Information").
The Defendants failed to implement and maintain reasonable security
procedures and practices appropriate to the nature of the
information at issue in order to protect the Plaintiff's and
others' personal information, which would include Personal
Information and Medical Information. The Defendants' actions
resulted in this information being improperly accessed and copied
by unauthorized third parties, the suit says.
PARKER-HANNIFIN CORPORATION manufactures motion control products,
including fluid power systems, electromechanical controls, and
related components. The Company also produces fluid purification,
fluid flow, process instrumentation, air conditioning,
refrigeration, and electromagnetic shielding and thermal management
products. [BN]
The Plaintiff is represented by:
Alan M. Mansfield, Esq.
WHATLEY KALLAS, LLP
16870 W. Bernardo Drive Suite 400
San Diego, CA 92127
Telephone: (619) 308-5034
Facsimile: (888) 341-5048
Email: amansfield@whatleykallas.com
- and -
Joe R. Whatley, Jr., Esq.
Edith M. Kallas, Esq.
Patrick J. Sheehan, Esq.
WHATLEY KALLAS, LLP
152 W. 57th Street, 41st Floor
New York, NY 10019
Telephone: (212) 447-7060
Facsimile: (800) 922-4851
Email: jwhatley@whatleykallas.com
ekallas@whatleykallas.com
psheehan@whatleykallas.com
- and -
April M. Strauss, Esq.
APRIL M. STRAUSS, A PC
2500 Hospital Drive, Bldg 3
Mountain View, CA 94040
Telephone: (650) 281-7081
Email: astrauss@sfaclp.com
- and -
William J. Doyle, Esq.
DOYLE APC
550 West B Street 4th Floor
San Diego, CA 92101
Telephone: (619) 736-0000
Facsimile: (619) 736-1111
Email: bill@doyleapc.com
PATTERN ENERGY: Briefing Deadlines Extended in Securities Suit
--------------------------------------------------------------
In the class action lawsuit re Pattern Energy Group Inc. Securities
Class Action, Case No. 1:20-cv-00275 (D. Del.), the Hon. Judge
Jennifer L. Hall entered an order extending class certification
briefing deadlines:
-- Answering Brief due: June 10, 2022
-- Reply Brief due: July 22, 2022
The suit alleges violation of the Securities Exchange Act.
Pattern Energy is an American company that develops, owns and
operates utility scale wind and solar power facilities in the
United States, Canada, and Japan.[CC]
PAYCOM SOFTWARE: Sched Order, Discovery Plan Entered in Rombough
----------------------------------------------------------------
In the class action lawsuit captioned as CAITLIN ROMBOUGH v. PAYCOM
SOFTWARE, INC., Case No. 22-cv-16-CJW (N.D. Iowa), the Hon. Judge
entered scheduling order and discovery plan as follows:
-- Initial disclosures: June 17, 2022
-- Motions to add parties: August 19, 2022
-- Motions to amend pleadings: August 19, 2022
-- Expert witness disclosures:
1. Plaintiff's expert(s): December 9, 2022
2. Defendant's expert(s): January 20, 2023
3. Plaintiff's rebuttal expert(s): February 24, 2023
-- Completion of discovery: March 31, 2023
-- Motion for class certification: April 28, 2023
-- Dispositive motions: June 30, 2023
-- Trial ready date: December 1, 2023
Paycom is an American online payroll and human resource technology
provider based in Oklahoma City, Oklahoma with offices throughout
the United States. It is attributed with being one of the first
fully online payroll providers.
A copy of the Court's order dated June 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3Nqx8xz at no extra charge.[CC]
PEACEHEALTH: Class Cert. Bid Filing Extended to March 3, 2023
-------------------------------------------------------------
In the class action lawsuit captioned as Benelli et al v.
PeaceHealth, Case No. 6:21-cv-00825 (D. Or.), the Hon. Judge Ann L.
Aiken entered an order on motion for extension of discovery & PTO
deadlines as follows:
-- Class Certification Motion to March 3, 2023
be filed by:
-- Response is due by: April 7, 2023
-- Reply is due by: April 28, 2023
-- Discovery is to be completed by: Oct. 13, 2023
-- The Plaintiffs' Expert Dec. 8, 2023
Disclosure deadline is:
-- Defendant's Expert Disclosure Jan. 5, 2024
deadline is:
-- Expert Discovery to be March 1, 2024
completed by:
-- Dispositive Motions are due March 29, 2024
by:
-- Responses to Dispositive April 26, 2024
Motions are due by:
-- Replies to Dispositive May 17, 2024
Motions are due by:
The nature of suit states Other Labor Litigation.
PeaceHealth is a not-for-profit health care system that owns and
operates ten hospitals, and numerous clinics, in the Western United
States.[CC]
PEPSICO INC: Mitchell Labor Suit Moved From M.D. Fla. to S.D.N.Y.
-----------------------------------------------------------------
The case styled KENNETHA MITCHELL, individually and on behalf of
all others similarly situated v. PEPSICO, INC., Case No.
3:22-cv-00421, was transferred from the U.S. District Court for the
Middle District of Florida to the U.S. District Court for the
Southern District of New York on June 2, 2022.
The Clerk of Court for the Southern District of New York assigned
Case No. 1:22-cv-04555-ER to the proceeding.
The case arises from the Defendant's alleged failure to pay wages,
including proper overtime, for all hours worked in violation of the
Florida Constitution.
The Plaintiff has worked for PepsiCo as a non-exempt worker from
July 2018 to March 2022.
PepsiCo, Inc. is a food, snack, and beverage corporation, with its
headquarters and principal place of business in New York. [BN]
The Plaintiff is represented by:
Kimberly De Arcangelis, Esq.
C. Ryan Morgan, Esq.
MORGAN & MORGAN, P.A.
20 N. Orange Ave., 15th Floor
Orlando, FL 32801
Telephone: (407) 420-1414
Facsimile: (407) 245-3383
E-mail: kimd@forthepeople.com
rmorgan@forthepeople.com
PNC BANK: Parties Stipulate Briefing Schedule for Class Cert. Bid
-----------------------------------------------------------------
In the class action lawsuit captioned as JEFFREY J. POLONOWSKI and
BARBARA A. POLONOWSKI, individually and on behalf of all others
similarly situated, v. PNC BANK, NATIONAL ASSOCIATION, a National
Banking Association, Case No. 1:20-cv-00151-PLM-RSK (W.D. Mich.),
the Parties stipulate, agree and propose the following briefing
schedule for Plaintiffs' Motion for Class Certification:
1. The Plaintiffs shall review and sign their deposition
transcripts within 14 days of the completion of their
depositions.
2. PNC Bank shall have through the 21 st day following
Plaintiffs' depositions now scheduled to be completed by
June 20, 2022 to file any opposition to Plaintiffs' Motion
for Class Certification.
3. The Plaintiffs shall have 14 days following the filing of
PNC Banks's opposition to file their reply brief, if any,
in support of their Motion.
On June 1, 2022, the Plaintiffs filed their Motion for Class
Certification. Pursuant to Local Rule 7.2(c), the Defendant's
opposition to Plaintiffs' Motion is currently due on June 29, 2022.
The Plaintiffs' depositions are currently scheduled to occur on
June 20, 2022.
PNC Bank offers a wide range of personal banking services including
checking and savings accounts, credit cards, mortgage loans, and
auto loans.
A copy of the Parties motion dated June 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3x5Vsh8 at no extra charge.[CC]
The Plaintiffs are represented by:
Theodore J. Westbrook, Esq.
WESTBROOK LAW PLLC
Centennial Plaza, Suite 205
2851 Charlevoix Dr. SE
Grand Rapids, MI 49546
Telephone: (616) 288-9548
E-mail: ted@westbrook.law
The Defendant is represented by:
Fredrick S. Levin, Esq.
BUCKLEY LLP
100 Wilshire Boulevard, Suite 1000
Santa Monica, CA 90401
Telephone: (310) 424-3984
E-mail: flevin@buckleyfirm.com
PREMIER PIZZA: Adams Sues Over Failure to Pay Minimum & OT Wages
----------------------------------------------------------------
SCOTT ADAMS, individually and on behalf of all others similarly
situated, Plaintiff v. PREMIER PIZZA, INC., and BILLY JAMES HALL,
Defendant, Case No. 4:22-cv-00702-CLM (N.D. Ala., June 3, 2022) is
a collective action complaint brought against the Defendants for
their alleged willful violations of the Fair Labor Standards Act.
The Plaintiff was employed by the Defendant as an hourly-paid
delivery driver from approximately July 2017 until July 2021.
According to the complaint, the Plaintiff and other similarly
situated delivery drivers work "dual jobs" at the Defendant's
restaurants by delivering food to the Defendants' customers, and by
working inside the store completing non-tipped duties. However, the
Defendants took advantage of the "tip credit" received by the
Plaintiff and other similarly situated delivery drivers from the
Defendants' customers while making deliveries, thereby paying them
less than minimum wage per hour for all hours worked outside of the
restaurant, says the suit.
Moreover, the Defendants required the Plaintiff and other similarly
situated delivery drivers to maintain and pay for operable, safe
and legally compliant automobiles while delivering the Defendants'
pizza and other food items. However, the Defendant did not
reimburse them for the actual automobile expenses they have
incurred while performing duties for the benefits of the
Defendants. As a result, they were paid less than the applicable
minimum wage rate. In addition, despite regularly working more than
40 hours per week, the Plaintiff and other similarly situated
delivery drivers were not paid overtime compensation at the rate of
one and one-half times their regular rates of pay for all hours
worked in excess of 40 per workweek, the suit asserts.
On behalf of himself and all other similarly situated delivery
drivers, the Plaintiff seeks all unpaid minimum wages for all hours
worked and overtime premiums for all hours worked for the
Defendants in excess of 40 each week. The Plaintiff also seeks
liquidated damages, reasonable attorneys' fee, costs and
pre-judgment interest, and other relief as the Court may deem just
and proper.
Premier Pizza, Inc. owns and operates Domino's Pizza franchises in
Alabama. Billy James Hall is a principal, director, officer and/or
owner of the Corporate Defendant. [BN]
The Plaintiff is represented by:
Courtney Lowery, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Pkwy, Suite 510
Little Rock, AR 72211
Tel: (501) 221-0088
Fax: (888) 787-2040
E-mail: courtney@sanfordlawfirm.com
PSI PIZZA: Wolsieffer Sues Over Drivers' Unreimbursed Expenses
--------------------------------------------------------------
THOMAS WOLSIEFFER, individually and on behalf of similarly situated
persons, Plaintiff v. PSI PIZZA, INC., PERSISTENCE PIZZA, INC.,
BEYER PIZZA, INC., and SETH GOLLHARDT, individually, Defendants,
Case No. 3:22-cv-00871-KM (M.D. Penn., June 2, 2022) alleges the
Defendants of violations of the Fair Labor Standards Act.
The Plaintiff was employed by the Defendants from approximately
October 2019 to October 2020 as a delivery driver at the
Defendants' Domino's store located in Pittston, PA.
The Plaintiff asserts claim that the Defendants required him and
other similarly situated delivery drivers to maintain and pay for
safe, legally-operable, and insured automobiles when delivering
pizza and other food items. As a result, they have incurred
automobile expenses while delivering pizza for the benefit of the
Defendants. However, the Defendants employed a reimbursement policy
that equates to below IRS business mileage reimbursement rate
and/or much less than a reasonable approximation of its drivers'
automobile expenses. The Defendants' reimbursement policy does not
reimburse delivery drivers for even their ongoing out-of-pocket
expenses. Due to the Defendants failure to reasonably approximate
the amount of their drivers' automobile expenses, the Plaintiff and
other similarly situated delivery drivers' net wages diminished
beneath the federal minimum wage requirements, says the suit.
The Plaintiff brings this complaint as a collective action
demanding judgment against the Defendants and seeking for
compensatory damages, liquidated damages, litigation costs and
attorney's fees, pre- and post-judgment interest, and other relief
as the Court deems fair and equitable.
The Corporate Defendants operate numerous Domino's Pizza franchise
stores. Seth Gollhardt is the director of the Corporate Defendants.
[BN]
The Plaintiff is represented by:
Patrick Howard, Esq.
SALTZ MONGELUZZI & BENDESKY, P.C.
120 Gibraltar Road, Suite 218
Horsham, PA 19044
Tel: (215) 496-8282
Fax: (215) 754-4443
E-mail: phoward@smbb.com
QUEST DIAGNOSTICS: ERISA Class Suit Seeks Class Certification
-------------------------------------------------------------
In the class action lawsuit RE QUEST DIAGNOSTICS ERISA LITIGATION,
Case No. 2:20-cv-07936-JXN-LDW (D.N.J.), the Plaintiffs ask the
Court to enter an order granting their motion for class
certification.
Quest Diagnostics is an American clinical laboratory.
A copy of the Plaintiffs' motion to certify class dated June 2,
2022 is available from PacerMonitor.com at https://bit.ly/3axrHhx
at no extra charge.[CC]
The Plaintiffs are represented by:
James C. Shah, Esq.
MILLER SHAH LLP
2 Hudson Place, Suite 10
Hoboken, NJ 07030
Telephone: (866) 540-5505
Facsimile: (866) 300-7367
E-mail: jcshah@millershah.com
- and -
Alec J. Berin, Esq.
John C. Roberts, Esq.
Kolin C. Tang, Esq.
MILLER SHAH LLP
1845 Walnut Street, Suite 806
Philadelphia, PA 19103
Telephone: (866) 540-5505
Facsimile: (866) 300-7367
E-mail:ajberin@millershah.com
jcroberts@millershah.com
kctang@millershah.com
- and -
James E. Miller, Esq.
Laurie Rubinow, Esq.
MILLER SHAH LLP
65 Main Street
Chester, CT 06412
Telephone: (866) 540-5505
Facsimile: (866) 300-7367
E-mail: jemiller@millershah.com
lrubinow@millershah.com
SAGINAW COUNTY, MI: Order Stopping Contacts With Fox Class Affirmed
-------------------------------------------------------------------
In the case, THOMAS A. FOX, and all those similarly situated,
Plaintiff-Appellee v. SAGINAW COUNTY, MICHIGAN, et al.,
Defendants-Appellees. ASSET RECOVERY, INC., Interested
Party-Appellant, Case No. 21-1653 (6th Cir.), the Court of Appeals
for the Sixth Circuit affirms in part and vacates in part the
district court's order granting Fox's motion to keep Asset Recovery
Inc. from communicating with the class members, to rescind or
invalidate ARI's contracts with class members, and to disqualify
ARI from representing claimants in Michigan.
I. Introduction
Mr. Fox and others like him failed to pay some of their property
taxes. So the counties they owed foreclosed on their property and
sold it. But the counties did not just keep the money owed; they
kept all of the sale proceeds -- sometimes tens of thousands of
dollars beyond the taxes due. None of it went back to the property
owners. Seeking to receive the rest of their money back, Fox filed
the class action against the counties.
After learning about the property owners' plight, ARI contacted
potential plaintiffs about pursuing relief on their behalf. Fox
believed that ARI was improperly soliciting class members, so he
asked the district court to order ARI to (1) stop contacting class
members and (2) allow class members to back out of their agreements
with ARI. The district court granted Fox's motion. ARI appeals that
order.
II. Background
In 2020 (while Fox's class action was pending), the Michigan
Supreme Court held that the counties' practice violated the
Michigan Constitution's Takings Clause -- Rafaeli, LLC v. Oakland
County, 952 N.W.2d 434 (Mich. 2020). And not long after, the
Michigan legislature began crafting a statutory process for
recovering the proceeds.
With avenues for recovery taking shape, ARI decided it wanted to be
involved. So it looked for people who could bring these claims. ARI
contacted people who might have claims by phone, email, and letter.
The company told them about the services ARI offered, assured them
that it would handle the logistics of the claims, and encouraged
them to appoint ARI as their fiduciary and enter a contingency-fee
arrangement. ARI gotten claimants on board within a few months. It
then hired a law firm to represent the claimants.
Soon after, the district court certified Fox's class. It reasoned
that the class action "offers greater recovery for a larger group
of claimants" than any other option and is thus the best way to
handle the class's claims.
ARI disagreed with the district court's view. It thought it could
achieve the best and most efficient results for its clients through
individualized claims—not the class action. So it instructed the
law firm it hired to opt out ARI-represented claimants -- including
22 more it had engaged since the district court certified the
class. It directed the firm to instead pursue individual relief on
their behalf.
Fox objected to the opt-outs. He asked the district court to keep
ARI from communicating with class members, to rescind or invalidate
ARI's contracts with class members, and to disqualify ARI from
representing claimants in Michigan.
The district court granted Fox's motion in part. It enjoined ARI
from communicating with class members about the claims without
court approval and directed Fox and the counties to submit a
curative notice, which would be sent to all class members. The
court ordered that the curative notice tell class members that they
could rescind any agreement with ARI or the law firm that ARI
retained. So the district court's order gave all 32 of ARI's
clients who were class members a choice: Stay with ARI or pursue
relief as part of the class instead. Under the order, ARI can
communicate with any clients who choose to stay only after the
class action's opt-out period has closed.
ARI appeals that order.
III. Discussion
The parties agree that a court can control abusive communications
of those -- parties and nonparties alike -- who threaten or
interfere with a class action. But they contest whether the
district court went beyond that authority in the case.
The Sixth Circuit divides its analysis into two parts. First, it
examines whether ARI's communications justified intervention. Then
it considers the scope of the district court's order. It concludes
that the district court has the authority to protect the
class-action process. That is what it did in the case. ARI
continued its misleading solicitations when the district court
certified the class. Indeed, it engaged 22 more class members after
certification. And just because a party was aggressive before
certification does not mean it can engage in improper contact after
certification. Thus, the district court did not abuse its
discretion when it acted to protect class members from ARI's
post-certification communications.
But the district court went a step too far by lumping together
those who ARI had engaged pre-certification with those it engaged
post-certification. Indeed, it abused its discretion by not
explaining why pre-certification agreements should be abrogated.
The district court merely noted that "the record demonstrates that
ARI sent abusive communications to class members, likely causing
some to unwittingly abandon their position in the class." To be
sure, that is enough to allow clients who hired ARI after
certification, when they were already (though unwittingly)
represented, to abandon their agreements. But the court never
explained why that rationale covers individuals who were not class
members when they hired ARI.
There is no evidence ARI knew the class action was pending until
after the district court certified the class. And without more, the
Sixth Circuit will not penalize the company for engaging clients
before they were class members. On this front, the district court
abused its discretion.
IV. Conclusion
So the Circuit affirms in part, vacates in part, and remands. On
remand, the district court should consider Fox's alternative
argument, which it did not reach: Whether ARI's agreements and any
resulting opt-outs are invalid because ARI is engaged in the
unauthorized practice of law.
A full-text copy of the Court's June 1, 2022 Opinion is available
at https://tinyurl.com/5fmznrm2 from Leagle.com.
ON BRIEF: Todd Rhys Mendel, Eugene Driker -- edriker@bsdd.com --
Melonie L.M. Stothers, John Sheets, BARRIS, SOTT, DENN & DRIKER,
PLLC, in Detroit, Michigan, for the Appellant.
E. Powell Miller -- epm@millerlawpc.com -- Sharon S. Almonrode --
ssa@millerlawpc.com -- Christopher D. Kaye -- cdk@millerlawpc.com
-- THE MILLER LAW FIRM, P.C., in Rochester, Michigan, Matthew E.
Gronda -- matthewgronda@gmail.com -- in St. Charles, Michigan, for
Appellee Thomas Fox.
Matthew T. Nelson -- mnelson@wnj.com -- WARNER NORCROSS + JUDD LLP,
in Grand Rapids, Michigan, Douglas J. Curlew, CUMMINGS MCCLOREY
DAVIS & ACHO, in Grand Rapids, Michigan, Theodore W. Seitz, Kyle M.
Asher, DYKEMA GOSSETT PLLC, in Lansing, Michigan, Charles A.
Lawler, CLARK HILL, in Lansing, Michigan, for the County
Appellees.
SAMSUNG ELECTRONICS: Turns to Arbitration Defense in Class Action
-----------------------------------------------------------------
John O'Brien at legalnewsline.com reports that Samsung is relying
on a tried-and-true argument that sends lawsuits to arbitration as
it fights a proposed class action regarding the performance of its
phones.
The company filed a motion to invoke an arbitration clause and
dismiss the lawsuit from New Jersey federal court on May 20,
pointing at a November decision by the U.S. Court of Appeals for
the Third Circuit that affirmed the clause.
"(T)he print materials provided to Plaintiffs with their . . . .
phone purchases establish - independently and certainly in
combination - Plaintiffs had reasonably conspicuous notice of
contract terms sufficient to support mutual assent to the
arbitration agreement," the Third Circuit wrote.
Though the phones at issue are different from that case, the
packaging and other materials are the same, Samsung argues. It
provided notice of its arbitration agreement on the outside of the
boxes of the phones, as well as inside and in an electronic
activation process customers are required to complete before using
their phones.
"Plaintiffs accordingly agreed through the purchase and use of
their phones that any dispute relating to those phones would be
resolved through individual arbitration," the company wrote.
Lawyers at Seeger Weiss in New Jersey and Philadelphia sued Samsung
on March 11 on behalf of three clients who hope to represent a
class of consumers. The case centers on Samsung's Game Optimizing
Service app on S10, S20, S21 and S22 models.
The GOS app "throttles" processing power to extend battery life.
"Samsung's deception is quite simple: in an effort to remain
competitive, Samsung promises to deliver both better, faster
performance and better, longer battery life," the lawsuit says.
"However, knowing it cannot deliver as promised, Samsung
intentionally programmed its devices to cheat benchmark apps, and
to create false perceptions regarding the speed, performance and
battery life of the devices."
Benchmark apps are performance-measuring tools used by reviewers
and consumers to test speed and performance.
"Samsung's throttling manipulation was intended to address a defect
in the design of its devices: the fact that the devices' batteries
lacked the capacity and power delivery to keep up with the demands
placed upon them by Samsung's hardware and software," the suit
says. [GN]
SAND LILY: Faces DeJulius Suit Over Retaliation & Discrimination
----------------------------------------------------------------
The case, MARY DeJULIUS, on behalf of herself and others similarly
situated, Plaintiff v. SAND LILY HEALTHCARE, INC., d/b/a Excell
Private Care Services, Defendant, Case No. 5:22-cv-00453-HE (W.D.
Okla., June 2, 2022) arises from the Defendant's alleged violations
of the Fair Labor Standards Act, Oklahoma's Protection of Labor
Act, the Americans with Disabilities Act, and Oklahoma's
Anti-Discrimination Act.
The Plaintiff was employed by the Defendant as a case manager from
around December 2018 until March 30, 2021.
When the Plaintiff was hired by the Defendant, she was qualified
for her position and she performed satisfactorily. However, she
suffered from impairments including hypertension, diabetes and
other heart-related impairments. Although she told her supervisor
about her underlying conditions and her hospitalization period from
around March 23, 2021 until around March 29, 2021, the Defendant
terminated her employment around March 27, 2021. As a result of the
Defendant's unlawful conduct, the Plaintiff has suffered and
continues to suffer wage loss and emotional distress, alleges the
suit.
According to the complaint, termination on the basis of disability
and terminating an employee in retaliation for requesting
accommodations violate the ADA and OADA. In addition, the Defendant
has also violated the FLSA due to its failure to maintain accurate
records of hours worked by its employees, and failure to pay
overtime and minimum wages.
The Plaintiff seeks all available compensatory damages, liquidated
damages, pre- and post-judgment interest, costs, attorneys' fees
and any other legal or equitable relief allowed by law.
Sand Lily Healthcare, Inc. provides healthcare services. [BN]
The Plaintiff is represented by:
Mark E. Hammons, Esq.
Amber L. Hurst, Esq.
HAMMONS, HURST & ASSOCIATES
325 Dean A. McGee Avenue
Oklahoma City, OK 73102
Tel: (405) 235-6100
Fax: (405) 235-6111
E-mail: mark@hammonslaw.com
amber@hammonslaw.com
SHAMROCK TOWING: Scheduling Order Entered in Allen Class Suit
-------------------------------------------------------------
In the class action lawsuit captioned as AMY ALLEN, et al., v.
SHAMROCK TOWING, INC., et al., Case No. 2:22-cv-01948-ALM-KAJ (S.D.
Ohio), the Hon. Judge Kimberly A. Jolson entered a scheduling order
as follows:
-- The parties shall exchange June 10, 2022
initial disclosures by:
-- The motion for class July 29, 2022
certification shall be
filed by:
-- All discovery shall be January 27, 2023
completed by:
-- Any dispositive motions February 27, 2023
shall be filed by:
-- Primary expert reports must October 28, 2022
be produced by:
-- Rebuttal expert reports must December 16, 2022
be produced by:
The Plaintiff will make a settlement demand within 30 days after
receiving all time and pay records for Plaintiffs and any opt-in
Plaintiffs. Defendant will respond within 30 days of Plaintiffs'
settlement demand.
This case has been brought under the Fair Labor Standards Act
("FLSA") as a putative collective action. The Plaintiffs allege
that Defendants paid them and those similarly situated a flat rate
for all hours worked and failed to pay overtime. Defendants deny
that there was any scheme or collective action in which it sought
to avoid paying employees overtime.
The Defendants deny that they failed to pay overtime to their
employees. The Defendants have asserted various affirmative
defenses under the FLSA. Finally, Defendants deny that this claim
should be certified.
Shamrock Towing provides professional towing services.
A copy of the Court's order dated June 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3xoEXhx at no extra charge.[CC]
SHOE CARNIVAL: Hasty et al. Sue Over Unsolicited Phone Calls
------------------------------------------------------------
DEREK HASTY and DANIEL MCELVEEN, individually and on behalf of all
others similarly situated, Plaintiffs v. SHOE CARNIVAL, INC.,
Defendant, Case No.8:22-cv-01263-SDM-AAS (M.D. Fla., June 2, 2022)
is a class action complaint brought against the Defendant for its
alleged violations of the Telephone Consumer Protection Act.
In an attempt to promote its services, the Defendant sent
telephonic sales call to the Plaintiffs' cellular telephone numbers
which are residential telephone lines and they utilize for personal
purposes. Also, Plaintiff Hasty's telephone number was registered
on the National Do-Not-Call Registry for over 30 days prior to the
Defendant's first text message solicitation. In addition, the
Defendant did not provide the Plaintiffs with instructions on how
to opt-out. The Defendant allegedly used a computer software system
that automatically selected and dialed the Plaintiffs' and other
similarly situated individuals' telephone numbers. The Plaintiffs
assert that they never provided the Defendant with express written
consent authorizing the Defendant to transmit telephonic sales
calls to the Plaintiffs' cellular telephone number utilizing an
automated system for the selection and dialing of telephone
numbers, says the suit.
As a result of the Defendant's telephonic sales calls, the
Plaintiffs and the Class members have been harmed in the form of
statutory damages, inconvenience, invasion of privacy, aggravation,
annoyance, and violation of their statutory privacy rights, the
suit added.
Shoe Carnival, Inc. is an American retailer of family footwear.
[BN]
The Plaintiffs are represented by:
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Boulevard Suite 1400
Ft. Lauderdale, FL 33301
Tel: (954) 400-4713
E-mail: mhiraldo@hiraldolaw.com
- and –
Jibrael S. Hindi, Esq.
THE LAW OFFICES OF JIRABEL S. HINDI
110 SE 6th Street Suite 1744
Ft. Lauderdale, FL 33301
- and –
Rachel N. Dapeer, Esq.
DAPEER LAW, P.A.
20900 NE 30th Avenue, Ste. 417
Aventura, FL 333180
Tel: (305) 610-5223
E-mail: rachel@dapeer.com
SMILEDIRECTCLUB INC: Wins Bid to Compel Arbitration in Navarro Suit
-------------------------------------------------------------------
In the case, ARNOLD NAVARRO, Plaintiff v. SMILEDIRECTCLUB, INC., et
al., Defendants, Case No. 22-cv-00095-WHO (N.D. Cal.), Judge
William C. Orrick of the U.S. District Court for the Northern
District of California grants SDC's motion to compel arbitration.
I. Introduction
Mr. Navarro, the Plaintiff in the putative class action, alleges
that SmileDirectClub, Inc., SmileDirectClub, LLC, Jeffrey Sulitzer,
and Jeffrey Sulitzer, D.M.D., P.C. (collectively "SDC"), engage in
the unauthorized practice of dentistry in violation of California
law. SDC has moved to compel arbitration.
Judge Orrick previously identified evidentiary deficiencies in
SDC's motion and ordered SDC to file a declaration under oath to
address these deficiencies. SDC has done so.
Specifically, and in keeping with his order, it has produced sworn
declarations and supporting exhibits that demonstrate the design
and appearance of the clickwrap agreement on April 23, 2020, the
date on which Navarro allegedly assented to the clickwrap agreement
on SDC's website. Navarro denies that he assented to arbitration
but he does not dispute that he enrolled on SDC's website so that
he could receive SDC's services. Nor does he challenge SDC's
evidence that customers are required to consent to SDC's terms and
services -- which include an arbitration clause --- as a
precondition to receiving SDC's services.
II. Background
Mr. Navarro filed a complaint in the Superior Court of the State of
California for the County of Alameda alleging that SDC engages in
the unauthorized practice of dentistry. In his First Amended
Complaint ("FAC"), Navarro claims that, among other things, SDC
failed to comply with consumer protection licensing requirements,
negligently provided dental care, and made misleading and false
representations to consumers about the scope of the dental services
that SDC could lawfully provide. He has pleaded various causes of
action against SDC, including negligence, breach of fiduciary duty,
fraudulent inducement, violation of California's Consumer Legal
Remedies Act, and violation of California's Unfair Competition
Law.
SDC characterizes itself as a "teledentistry platform" that
connects consumers like Navarro with orthodontic treatment. It
claims that its business model facilitates access to orthodontic
treatment and allows consumers to straighten their teeth via clear
aligners without the hassle and cost of in-person appointments.
Consumers who are interested in SDC's dental services may request a
doctor-prescribed impression kit from SDC's website, visit a SDC
retail location (known as a SmileShop), or visit the office of a
dentist or orthodontist that participates in SDC's Partner Network.
All three options require consumers to register and create an SDC
account online before they can access any of SDC's products or
services.
In April of 2020, Navarro visited SDC's website and reportedly
created an online account. According to SDC, as part of the account
creation process and before Navarro could finalize his registration
as an SDC clear aligner candidate, he was required to affirmatively
check a clickwrap checkbox in which he agreed to SDC's Informed
Consent, Terms & SmilePay Conditions ("TOS"). The checkbox is not
pre-checked, and the full TOS are presented as hyperlinks. When the
hyperlinks are clicked, the consumer is taken to another screen
that displays the complete text of each of the policies. Consumers
have the option to read, download, and/or print the policies.
In support of its motion to compel arbitration, SDC initially
provided some evidence regarding the appearance of the clickwrap
agreement but failed to show how the agreement would have appeared
to Navarro on April 23, 2020 -- the date on which Navarro allegedly
accepted SDC's TOS. After Judge Orrick ordered SDC to address this
deficiency, it provided two declarations to establish the design
and appearance of the SDC clickwrap agreement on April 23, 2020.
Specifically, SDC submitted a supplemental declaration from Justin
Skinner, SDC's Chief Information Officer, that described the
appearance of SDC's website during each stage of the registration
process and explained what Navarro would have seen as he completed
the SDC account-registration process. Additionally, SDC submitted a
sworn declaration by Michael Meuti, SDC's counsel, which described
Meuti's retrieval of certain archived pages of SDC's website from
Jan. 26, 2020, and June 18, 2020, via the Wayback Machine. .
Although Navarro vigorously disputes that he assented to
arbitration, he concedes that he "enrolled on a website" so that he
could receive patient services. He contends that the website
enrollment process did not put him on notice of an arbitration
policy, that no version of any rules of the American Arbitration
Association were provided to him, and that no medical service
provider informed him that any dispute would be subject to
arbitration. He does not, however, challenge SDC's allegations that
he was required to affirmatively check a clickwrap checkbox on
SDC's website in which he agreed to SDC's TOS before he could
receive any services from SDC. Nor does he assert that he did not
check the clickwrap checkbox on SDC's website.
On Jan. 6, 2022, SDC removed the case on the bases of diversity and
the Class Action Fairness Act. On Feb. 7, 2022, SDC filed its
motion to compel arbitration. On April 13, 2022, Judge Orrick heard
oral argument regarding the motion. During the oral argument, he
issued a tentative ruling that SDC had not met its burden to show
that Navarro had assented to the arbitration agreement and said
that he would order SDC to provide more evidence on this issue. On
April 15, 2022, he did so. Judge Orrick explained that "should
Navarro wish to respond to SDC's evidence, Navarro may file a
declaration with supporting evidence by May 20, 2022," and that he
would rule on SDC's motion to compel arbitration following the
submission of the supplemental evidence.
On May 6, SDC submitted its supplemental evidence, which consisted
of a supplemental declaration by Skinner, a declaration by Michael
Meuti, and supporting exhibits. On May 20, 2022, Navarro submitted
a 24-page opposition brief to SDC's supplemental evidence, along
with sworn declarations by Navarro and Navarro's counsel. SDC then
filed an administrative motion to strike Navarro's supplemental
brief on the grounds that it exceeded the scope of what Judge
Orrick had allowed and because it included legal arguments not
previously raised by the parties. And Navarro filed an opposition
III. Discussion
SDC's motion to compel Navarro to arbitration initially involved
three disputes: (1) whether Navarro assented to the arbitration
agreement, (ii) whether the arbitration agreement (in whole or in
part) is valid and enforceable, and (iii) whether the arbitration
agreement delegates these "gateway" questions of arbitrability,
meaning that the arbitrator, not the Court, should decide these
issues. Navarro has since withdrawn all of his arguments concerning
the validity and enforceability of the arbitration agreement and
any delegation of arbitrability. As a result, should Judge Orrick
find that Navarro assented to the arbitration agreement, then he
must compel arbitration.
Judge Orrick finds that SDC has provided sufficient evidence
showing that Navarro assented to SDC's TOS when he clicked the "I
agree" box, as required before he could complete his account. By
assenting to the TOS, Navarro also assented to the arbitration
provision.
Judge Orrick further finds that none of the evidentiary objections
call into question what Skinner or Meuti declared with regard to
the appearance of the SDC website on April 23, 2020. Nor do the
objections call into question that Navarro assented to the TOS as
part of his registration for SDC's services, and that the TOS
contains an arbitration clause. Hence, Navarro's evidentiary
objections are overruled.
IV. Conclusion
For the foregoing reasons, SDC's motion to compel arbitration is
granted and its administrative motion to strike Navarro's
supplemental brief is denied as moot as moot. The proceeding is
stayed pending resolution of the arbitration.
The parties will submit a joint case management statement six
months from the date of the Order and every six months thereafter
until this matter is resolved. They will notify the Court within 14
days of the resolution of the arbitration, indicating whether the
case should be dismissed or will proceed; if the latter, the
parties should contact Ms. Davis, Judge Orrick's Courtroom Deputy,
to request a case management conference.
A full-text copy of the Court's June 1, 2022 Order is available at
https://tinyurl.com/45ud3s6b from Leagle.com.
SOCIETY INSURANCE: Denial of Bid to Dismiss Colectivo Suit Reversed
-------------------------------------------------------------------
In the case, Colectivo Coffee Roasters, Inc.; Tandem Restaurant,
LLC d/b/a The Tandem; Wrecking Crew, Inc.; Iron Grate BBQ Company,
Inc.; East Troy Brewery Company; Logan & Potter, Inc.; Buckley's
Kiskeam Inn, LLC; Other Ones MKE, LLC; BCT 5, LLC; Company Brewing,
LLC; Bryhopper's Bar & Grill, LLC; The River's Bar, LLC; Etcetera
by BLH, LLC; REMBS, LLC, KRO Bar, Inc.; Rivermill, Inc.; and Pork's
Place of Kaukauna, LLC, v. Society Insurance, a Mutual Company,
Defendant-Appellant, Case No. 2021AP463 (Wis.), the Supreme Court
of Wisconsin reverses the circuit court's order denying Society'
motion to dismiss the complaint.
I. Introduction
Colectivo Coffee Roasters and other bars and restaurants
experienced substantial losses as a result of the COVID-19 pandemic
and related government restrictions on in-person dining. The case
is about whether those losses are covered by a property-insurance
policy issued by Society Insurance. Specifically, the questions
here are: (1) whether a bar or restaurant's inability to use its
dining space for in-person dining because of the pandemic and
related government restrictions constitutes a direct physical loss
of or damage to its property under Society's policy; and (2)
whether the presence of COVID-19 on a bar or restaurant's property
caused the bar or restaurant to suspend its operations, thereby
entitling it to coverage under the policy's contamination
provision.
II. Background
The case began in the early days of the COVID-19 pandemic. In early
February 2020, Colectivo purchased an insurance policy from
Society. The policy provides that Society "will pay for direct
physical loss of or damage to" Colectivo's buildings, permanently
installed equipment, and other "business personal property." When
such direct physical harm occurs, the policy covers not only that
harm but certain other losses resulting from it.
Two types of losses are relevant, each covered by its own
provision. The first is the "business-income" provision, under
which Society is required to pay for "the actual loss of business
income Colectivo sustains due to the necessary suspension of its
'operations' during the 'period of restoration.'" The second is the
"extra-expenses" provision, which covers expenses incurred "during
the period of restoration," that Colectivo would not have incurred
but for the direct physical harm, and that are "necessary" to
"avoid or minimize the suspension of business and to continue
operations".
The policy also contains provisions that cover lost business income
and extra expenses incurred as a result of contamination on the
property or an order by a civil authority preventing Colectivo from
accessing its property. The policy's "contamination" provision
covers the costs to "clean and sanitize Colectivo's premises,
machinery and equipment" when Colectivo's "operations are suspended
due to 'contamination,'" defined as a "defect, deficiency,
inadequacy or dangerous condition in Colectivo's products,
merchandise, or premises." When the contamination "results in an
action by a public health or other governmental authority that
prohibits access" to the property and causes Colectivo to suspend
its business operations, the policy covers lost business income and
extra expenses Colectivo incurs during that suspension period. The
"civil-authority" provision provides coverage when a "civil
authority prohibits access" to Colectivo's property due to direct
physical harm to a surrounding property, even if Colectivo's
property itself suffered no such harm.
Not long after Colectivo purchased its policy from Society,
Department of Health Services Secretary-Designee Andrea Palm issued
several emergency orders aimed at stopping the spread of COVID-19.
Orders Nos. 5 and 12, issued in March 2020, prohibited in-person
dining at all bars and restaurants, although take-out and delivery
services were allowed to continue. Colectivo lost business income
as a result of its compliance with those restrictions, and some of
the other plaintiffs that served only alcohol closed altogether, as
local laws prohibited them from offering take-out service. It filed
a claim with Society to recover its lost income, which Society
denied on the grounds that Colectivo had not suffered a "direct
physical loss." Rather, in Society's view, Colectivo's use of its
property was restricted, but the property was not lost or damaged.
Colectivo then filed a class-action complaint against Society
seeking declaratory and injunctive relief, as well as damages for
breach of contract. It alleged that it had been "forced to cease
its operations" because of Palm's orders and the potential presence
of COVID-19 on its property. It asserted that the "presence of any
COVID-19 particles renders items of physical property unsafe,"
thereby causing "direct physical harm, direct physical damage, and
direct physical loss to property." Accordingly, Colectivo argued
that Society was required to compensate it for that harm as well as
the business income it lost because of that harm. Likewise, it
alleged that Palm's orders "prohibited the public from accessing
its restaurants, thereby causing the necessary suspension of its
operations," which triggered the business-income, extra-expense,
and civil-authority provisions of the policy.
Society filed a motion to dismiss the complaint, arguing that
Colectivo had failed to allege any direct physical loss of or
damage to its property, so none of the policy's coverage provisions
applied. The circuit court denied that motion, concluding that
Colectivo had sufficiently alleged a physical loss of its dining
area due to both the likely presence of COVID-19 on Colectivo's
property and Palm's orders prohibiting in-person dining. The court
of appeals permitted Society to appeal the circuit court's
non-final order. Society then filed a petition to bypass the court
of appeals, which the Supreme Court granted.
II. Discussion
Colectivo asserts that Society must cover Colectivo's alleged
damages under the policy's business-income, extra-expense,
civil-authority, and contamination provisions. The Supreme Court
analyzes the former three provisions together because they share a
similar prerequisite for coverage: They apply only if there has
been a physical loss of or damage to either Colectivo's property or
a surrounding property. It then addresses the contamination
provision, which applies if a "dangerous condition" on Colectivo's
property caused Colectivo to suspend its operations or a
governmental authority to "prohibit access" to the property.
First, the Supreme Court disagrees with the district court's
reasoning for two reasons. First, the district court's
interpretation ignores the language in Society's policy
distinguishing a loss of use from a direct physical loss and is
inconsistent with our previous cases interpreting "physical loss."
And second, to restore property is to "bring it back to its former
or original state," not to alter its condition, as the district
court's proposed measures would. So although Colectivo could not
use its dining room for in-person dining for a period of time, the
dining room was still there, unharmed -- it was not physically lost
or damaged. Without such a harm, the policy's business-income and
extra-expense provisions do not apply.
Second, the Supreme Court opines that because Colectivo has
identified no physical loss of or damage to its property or a
surrounding property, the losses it alleges are not covered by the
business-income, extra-expense, or civil-authority provisions.
Lastly, turning to Colectivo's claim that it has coverage under the
policy's contamination provision, the Supreme Court opines that the
contamination provision does not apply here for three reasons.
First, as Colectivo concedes in its complaint, it did not suspend
its operations due to the presence of COVID-19; it did so because
of Palm's orders. Indeed, despite the continuing presence of the
virus, in-person dining operations were no longer prohibited after
the court invalidated Palm's orders. Thus, assuming the presence of
COVID-19 particles constitutes "contamination," that contamination
did not cause Colectivo to suspend its operations, as the policy
requires. Second, and as discussed, Palm's orders did not prohibit
access to Colectivo's property; they restricted how the property
could be used. And third, Palm's orders did not prohibit Colectivo
from producing its products; they prevented it only from serving
its products for in-person dining. Accordingly, Colectivo has
failed to sufficiently allege an initial grant of coverage under
the contamination provision.
III. Disposition
The Supreme Court concludes that Colectivo fails to state a claim
for coverage under the Society policy's business-income,
extra-expense, civil-authority, or contamination provisions.
Accordingly, it does not address whether any of the policy's
exclusion provisions apply. It will therefore reverse the circuit
court's order and remand the cause with instructions to grant
Society's motion to dismiss.
The circuit court's order is reversed, and the cause is remanded.
A full-text copy of the Court's June 1, 2022 Opinion is available
at https://tinyurl.com/2p83rw29 from Leagle.com.
For the Defendant-Appellant there were briefs filed in the Court of
Appeals by Janet E. Cain -- janet.cain@vonbriesen.com -- Heidi L.
Vogt, Beth J. Kushner, Christopher E. Avallone and von Briesen &
Roper, S.C., Milwaukee. There was a brief filed in response to
amicus briefs for United Policyholders and the Tavern League of
Wisconsin by Janet E. Cain, Heidi L. Vogt, Beth J. Kushner,
Christopher E. Avallone, Laura A. Foggan and von Briesen & Roper,
S.C., Milwaukee and Crowell & Moring LLP, in Washington, D.C. There
was an oral argument by Laura A. Foggan.
For the Plaintiffs-Respondents there was a brief filed in the court
of appeals by Jay A. Urban -- info@wisconsininjury.com -- Nicole A.
Flemming, Richard W. Schulte, and Urban & Taylor, S.C. Milwaukee
and Wright & Schulte, Vandalia. There was an oral argument by Jay
A. Urban.
An amicus curiae brief was filed in the court of appeals by Jeffrey
D. Colman -- jcolman@jenner.com -- Gabriel K. Gillett, and Jenner &
Block LLP Chicago for The Restaurant Law Center.
An amicus curiae brief was filed by Andrew B. Hebl --
ahebl@boardmanclark.com -- and Boardman & Clark LLP, Madison for
the Wisconsin Insurance Alliance, American Property Casualty
Insurance Association, and the National Association of Mutual
Insurance Companies.
An amicus curiae brief was filed by Patrick Murphy --
patrick.murphy@quarles.com -- John S. Vishneski III and Quarles &
Brady LLP, Milwaukee and Reed Smith LLP, Chicago, for United
Policyholders.
An amicus curiae brief was filed by Patricia L. Jenness, Marshall
Gilinsky, Esq., Nicholas M. Insua, Esq., Rhonda Orin, Esq. and
Michael Best & Friederich LLP, Milwaukee and Anderson Kill, New
York City, for the Tavern League of Wisconsin.
TPC SOUTHWIND: Perkins Must File Conditional Cert by Sept. 16
-------------------------------------------------------------
In the class action lawsuit captioned as FELICIA PERKINS,
Individually and on behalf of herself and all other similarly
situated current and former employees, v. TOURNAMENT PLAYERS CLUB
AT SOUTHWIND, INC., d/b/a TPC Southwind, a Tennessee Corporation,
Case No. 2:21-cv-02797-SHM-cgc (W.D. Tenn.), the Hon. Judge Samuel
H. Mays, Jr. entered a scheduling order as follows:
-- Initial disclosures: June 16, 2022
-- Motions to join parties & August 1, 2022
to amend pleadings:
-- motions to dismiss: August 31, 2022
-- ADR Deadline: January 20, 2023
-- The Plaintiff shall file September 16, 2022
her motion for conditional
certification on or before:
TPC Southwind is a private golf club in Shelby County, Tennessee.
A copy of the Court's order dated June 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3xa9JJQ at no extra charge.[CC]
TWITTER INC: Price Sues Over Undisclosed Use of Personal Info
-------------------------------------------------------------
LAUREN PRICE, individually and on behalf of all others similarly
situated, Plaintiff v. TWITTER, INC., a corporation, Defendant,
Case No. 3:22-cv-03173 (N.D. Cal., May 31, 2022) arises from
Twitter's surreptitious and undisclosed use of Plaintiff's and
Class Members' telephone numbers and email addresses for
advertising and marketing purposes, and, ultimately, its own unjust
enrichment in violation of the California Unfair Competition Law.
According to the complaint, Twitter solicited and collected
Plaintiff's and Class Members' personal information under the guise
that they were to be used for various account security related
functions, including two-factor authentication, account recovery,
and account re-authentication. In reality, Twitter was also using
this personal information of Plaintiff and Class Members to line
its own pockets -- specifically, it utilized the provided telephone
numbers and email addresses in its "Tailored Audiences" and
"Partner Audiences" marketing products, thereby permitting
advertisers to target specific groups of Twitter users by matching
the telephone numbers and email addresses that Twitter collected to
the advertisers' existing (or purchased) lists of telephone numbers
and email addresses, says the suit.
The lawsuit seeks vindication and recompense on behalf of the
individual consumers whose personal information was connivingly
collected and deployed, the suit asserts.
Plaintiff Lauren Price is an adult domiciled in Maryland and has an
active Twitter account and had an active account during the entire
Class Period.
Twitter Inc. is an American communications company based in San
Francisco, California.[BN]
The Plaintiff is represented by:
Michael F. Ram, Esq.
MORGAN & MORGAN COMPLEX LITIGATION GROUP
711 Van Ness Avenue, Suite 500
San Francisco, CA 94102
Telephone: (415) 358-6913
Facsimile: (415) 358-6923
E-mail: mram@ForThePeople.com
- and -
John A. Yanchunis, Esq.
Jean Sutton Martin, Esq.
Patrick A. Barthle, II, Esq.
MORGAN & MORGAN COMPLEX LITIGATION GROUP
201 N. Franklin Street, 7th Floor
Tampa, FL 33602
Telephone: (813) 559-4908
Facsimile: (813) 222-4795
E-mail: jyanchunis@forthepeople.com
jeanmartin@ForThePeople.com
pbarthle@ForThePeople.com
ULTA SALON: Court Grants in Part Bid to Stay Gonzalez Action
------------------------------------------------------------
In the class action lawsuit captioned as ANGEL GONZALEZ, an
individual and on behalf of all other similarly situated, et al.,
v. ULTA Salon, Cosmetics and Fragrance, Inc. et al., Case No.
2:22-cv-00363-AB-RAO (C.D. Cal.), the Hon. Judge Andre Birotte Jr.
entered an order granting in part motion to stay matter in its
entirety.
The Court grants in part Defendant's request to stay the instant
Gonzalez Action pending the outcome of the Kabasele Action's
class certification motion pursuant to the first-to-file rule.
Accordingly, all upcoming dates and deadlines are vacated.
Furthermore, the parties are ordered to file a joint report on the
status of the Kabasele Action's class certification motion
commencing on October 30, 2022 and continuing every 90 days
thereafter, and within 10 days of the motion being resolved. Any
report upon the resolution of the class certification motion must
set forth the parties' positions as to the impact on this matter
and whether the stay should be maintained or lifted.
This case is one of several class-action lawsuits filed against
Ulta asserting violations of California's labor laws. On November
19, 2021, the Plaintiffs filed a class and representative action in
the Los Angeles Superior Court and thereafter Ulta removed the case
to the Central District of California on January 18, 2022 (the
"Gonzalez Action").
Ulta filed this motion to stay pending the outcome of a similar
action filed in the Eastern District of California, Kabasele v.
Ulta Salon, Cosmetics & Fragrance, Inc., Case No.
2:21-CV-01639-WBS-CKD ("Kabasele Action"). Ulta argues the
first-to-file rule warrants a stay or alternatively, that the court
should exercise its inherent power to stay this case pending the
completion of the Kabasele Action.
On September 10, 2021, Plaintiff Dorcas-Cothy Kabasele ("Kabasele")
filed a class action against Ulta in the United States District
Court Eastern District of California. In her operative Third
Amended Complaint, Kabasele asserts five causes of action: (1)
failure to provide meal breaks; (2) failure to provide rest breaks;
(3) failure to pay all wages due at the end of employment; (4)
violation of Business and Professions Code section 17200; and (5)
civil penalties under the Private Attorneys General Act ("PAGA").
Kabasele identified three classes primarily consisting of "all
current and former non-exempt California employees of Ulta" during
the relevant time period of October 12, 2019 to the date of final
judgment.
The crux of the Kabasele Action is that "due to understaffing and
work demands," Ulta had a "policy and practice" of interrupting and
denying employees the opportunity to take meal and rest breaks
without paying the required premium pay.
In accordance with the scheduling order, Kabasele's Motion for
Class Certification is to be filed on or before September 30,
2022.
Ulta is an American chain of beauty stores headquartered in
Bolingbrook, Illinois.
A copy of the Court's order dated June 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3tkwnxM at no extra charge.[CC]
UNIVERSAL HEALTH: Class Certification Order in Boley Suit Affirmed
------------------------------------------------------------------
In the case, MARY K. BOLEY; KANDIE SUTTER; PHYLLIS JOHNSON,
Individually and as representatives of a class of similarly
situated persons, on behalf of the Universal Health Services, Inc.
Retirement Savings Plan v. UNIVERSAL HEALTH SERVICES, INC.;
UNIVERSAL INC.; THE UHS RETIREMENT PLANS INVESTMENT COMMITTEE; DOES
1-10, Whose Names Are Currently Unknown. Universal Health Services,
Inc. and Health Universal Health Services, Inc. Retirement Plans
Investment Committee, Appellants, Case No. 21-2014 (3d Cir.), the
U.S. Court of Appeals for the Third Circuit affirms the judgment of
the District Court certifying a class composed of all participants
in the Retirement Savings Plan.
I. Introduction
In this interlocutory appeal, fiduciaries of a retirement plan
appeal the District Court's certification of a class of
participants who allege the fiduciaries breached their duty under
the Employee Retirement Income Security Act of 1974 ("ERISA"). At
issue in the case is whether the typicality requirement of Federal
Rule of Civil Procedure 23(a) is satisfied when the class
representatives did not invest in each of a defined contribution
retirement plan's available investment options.
II. Background
Universal Health Services, Inc. sponsors the Universal Health
Services, Inc., Retirement Savings Plan, a defined contribution
retirement plan, in which qualified employees can participate and
invest a portion of their paycheck in selected investment options.
The Plan's investment options and administrative arrangements are
chosen and ratified by the UHS Retirement Plans Investment
Committee. The Committee is appointed and overseen by Universal.
Both Universal and the Committee serve as the Plan's fiduciaries
and administrators (collectively, "Universal").
Since 2014, the Plan's available investment options consisted of
thirty-seven funds, including mutual funds and a collective
investment trust. As with most investment funds, the Plan funds
charge participants annual management fees. The Plan also charges
participants an annual recordkeeping and administrative fee. Each
year, every investor in the Plan would pay the annual recordkeeping
and administrative fee, plus the additional fees associated with
whichever investment fund or funds in which he or she chose to
invest.
Among the investment options is the Fidelity Freedom Fund suite,
consisting of thirteen target date funds. Target date funds are
managed funds that shift in investment strategy as a target
retirement year approaches. The Fidelity Freedom Fund suite was
designated as the Plan's Qualified Default Investment Alternative,
meaning Universal would automatically invest Plan participants'
money in one of the thirteen Fidelity Freedom Funds if no other
investment selection was made.
The class representatives are three current and former participants
in the Plan (the "Named Plaintiffs"). Between them, the Named
Plaintiffs invested in seven of the Plan's 37 investment options.
They were also charged the Plan's annual fee for recordkeeping and
administrative services.
The Named Plaintiffs, on behalf of themselves and all other Plan
participants, sued Universal under 29 U.S.C. Section 1132(a)(2)3
and 29 U.S.C. Section 1109. They allege Universal breached its
fiduciary duty by including the Fidelity Freedom Fund suite in the
plan, charging excessive recordkeeping and administrative fees, and
employing a flawed process for selecting and monitoring the Plan's
investment options, resulting in the selection of expensive
investment options instead of readily-available lower-cost
alternatives. The Named Plaintiffs also allege certain Universal
defendants breached their fiduciary duty by failing to monitor the
Committee appointed to manage the Plan.
Universal moved for partial dismissal of the Named Plaintiffs'
claims, contending the Named Plaintiffs lacked constitutional
standing to pursue claims relating to funds in which they did not
personally invest. The District Court denied Universal's motion,
holding the Named Plaintiffs had standing to pursue all their
claims because they alleged concrete injuries resulting from
Universal's Plan-wide misconduct. Accordingly, the Named Plaintiffs
were permitted to bring their claims as alleged, because "claims
relating to allegedly imprudent decision-making processes injure
all plan participants."
The Named Plaintiffs then moved to certify a class under Rule
23(b)(1), comprising all current and former Plan participants. In
opposition, Universal argued that because the Named Plaintiffs did
not invest in thirty of the Plan's funds, they lack standing to
bring claims relating to these funds, making these claims atypical
to those of the Class. Universal also argued the Named Plaintiffs'
claims were atypical because the Named Plaintiffs lacked incentive
to demonstrate reasonable alternatives to the 30 funds in which
they did not invest.
The District Court rejected Universal's argument and certified a
class composed of all participants in the Plan from June 5, 2014,
to the present. It emphasized "the focus of the Participants'
claims is on Universal's conduct as to all Plan participants rather
than about the individual investment choices made by Participants
and putative Class members." Referencing its earlier decision
denying Universal's partial motion to dismiss for lack of standing,
the District Court reiterated its view that the Named Plaintiffs
challenged Universal's Plan-wide conduct.
For this reason, the District Court held the Named Plaintiffs'
claims were typical of claims regarding the funds in which the
Named Plaintiffs did not invest. Universal petitioned for leave to
appeal the class certification decision on an interlocutory basis
under Fed. R. Civ. P. 23(f).
The Third Circuit granted Universal's petition for an interlocutory
appeal.
III. Discussion
A. Jurisdiction
To determine whether the Named Plaintiffs have standing, the Third
Circuit first looks to the Complaint. Count I claims a breach of
fiduciary duty and Count II claims a failure to monitor
fiduciaries. For Count I, the Named Plaintiffs allege three
specific breaches of fiduciary duty: first, Universal's alleged
imprudence in offering the excessively expensive Fidelity Freedom
Fund suite to Plan participants; second, Universal's alleged
failure to monitor and reduce the excessively high recordkeeping
and administrative fees for the Plan; and third, Universal's
alleged lack of a "prudent investment evaluation process," which
resulted in the Plan offering a menu of excessively expensive
investments.
Taking these claims out of order, Universal concedes the Named
Plaintiffs have standing for the second claim challenging the
recordkeeping and administrative costs. The third Circuit agrees.
The challenged conduct -- charging each Plan participant a flat
annual recordkeeping and administrative fee -- affected all Plan
participants in the same way. This allegedly excessive annual fee
would represent a concrete and personal injury to a plaintiff
regardless of the funds in which he or she invested. It is
immaterial to the Third Circuit's standing analysis.
For the alleged imprudent selection of the Fidelity Freedom Fund
suite, the Named Plaintiffs similarly have a concrete injury
flowing from the challenged conduct. They have standing to bring
this claim.
The standing analysis for the final claim under Count I is also
similar. Because each class representative invested in at least one
fund with allegedly excessive fees, the Named Plaintiffs adequately
alleged they suffered injury from Universal's imprudent investment
evaluation process, and, accordingly, have standing to bring this
claim.
For Count II, like the claims in Count I, alleges conduct by
Universal that led to concrete injuries to all of the Named
Plaintiffs. Accordingly, the Named Plaintiffs have standing to
bring this claim as well.
Since the Named Plaintiffs each had a concrete and personalized
stake in each claim alleged in the complaint, the Third Circuit
opines that they may proceed under Article III. As the District
Court properly recognized, Universal's concerns regarding the
representation of absent class members might implicate class
certification or damages but are distinct from the requirements of
Article III.
B. Class Certification
In this appeal, Universal contends class certification was improper
because the class failed to satisfy the Rule 23(a)(3) requirement
that the class representative's claims be "typical of the claims of
the class." In evaluating typicality, the Third Circuit focuses on
whether the class representatives' legal theory and claim, or the
individual circumstances on which those theories and claims are
based, are different from those of the class.
The Named Plaintiffs allege Universal breached its fiduciary duty
under ERISA by failing to properly manage these investment options.
But because the Named Plaintiffs did not invest in all 37 of the
challenged funds, Universal contends the Plaintiffs' claims are not
typical of the class. According to Universal, in the context of a
defined contribution plan under ERISA, named class representatives'
claims are not typical of the class unless the named
representatives invested in each of the challenged funds, because,
otherwise, the representatives would lack an incentive to litigate
on behalf of the class.
Universal points out that to recover under ERISA, a plaintiff must
show both an inadequate fiduciary process and the objective
imprudence of offering each challenged fund. Because the Named
Plaintiffs did not invest in all the Plan's funds, Universal
contends the Named Plaintiffs have no incentive to focus their
litigation efforts on the objective imprudence of offering the
funds in which they did not invest. After all, any recovery
stemming from those funds will not be allocated to the Named
Plaintiffs' accounts. This lack of incentive, Universal insists,
precludes a finding that the Named Plaintiffs' claims are typical
of those of the class.
The Third Circuit does not find Universal's incentive argument
persuasive. The Named Plaintiffs' claims relating to the funds in
which they invested are typical of the claims relating to the funds
in which they did not. The Named Plaintiffs' interests are
sufficiently aligned with those of the class because the common
allegation for each class member -- Universal's alleged imprudence
in managing the Plan's funds -- is "comparably central to the
claims of the named plaintiffs as to the claims of the absentees."
For these reasons, typicality is satisfied even though additional
fund-specific proof of objective imprudence may be required to
support the claims of some class members.
The Third Circuit recognizes that allowing class representatives to
bring claims relating to funds in which they did not invest may
result in some inefficiency at the damages stage. But these
concerns do not bar certification of this (b)(1) class. Rather,
they more closely resemble concerns that might relate to the
predominance and superiority requirements for (b)(3) classes than
they do the typicality requirement of Rule 23(a).
Indeed, the Third Circuit has held that ERISA "breach of fiduciary
duty claims brought under Section 502(a)(2) are paradigmatic
examples of claims appropriate for certification as a Rule 23(b)(1)
class." Consistent with the basic principles underlying Rule
23(b)(1), certification of an ERISA class as a (b)(1) class is not
dependent on the degree of individual proof that will be required
for individual plaintiffs to recover, but rather on the recognition
that deciding one plaintiff's claim might mean other plaintiffs
might be unable to bring their own claims separately. Accordingly,
Universal's concerns about the individualized proof that will be
required for the Plaintiffs to recover are not a reason to prevent
certification of a (b)(1) ERISA class that meets the requirements
of Rule 23(a).
IV. Conclusion
For these reasons, the Third Circuit affirms the judgment of the
District Court.
A full-text copy of the Court's June 1, 2022 Opinion is available
at https://tinyurl.com/8kb298px from Leagle.com.
Deborah S. Davidson -- ddavidson@morganlewis.com -- Morgan Lewis &
Bockius, Chicago, IL, Michael E. Kenneally, [ARGUED] Morgan Lewis &
Bockius, in Washington, D.C., Matthew D. Klayman, Brian T. Ortelere
-- bortelere@morganlewis.com -- Morgan Lewis & Bockius, in
Philadelphia, Pennsylvania, Sean K. McMahan --
sean.mcmahan@morganlewis.com -- Morgan Lewis & Bockius, in Dallas,
Texas, Counsel for the Appellants.
John M. Masslon, II, Washington Legal Foundation, in Washington,
D.C., Counsel for Amicus Appellant.
Alec Berin -- aberin@sfmslaw.com -- James C. Shah --
jshah@sfmslaw.com -- Miller Shah, in Philadelphia, Pennsylvania,
James E. Miller -- jmiller@sfmslaw.com -- [ARGUED] Miller Shah,
Chester, CT, Mark K. Gyandoh -- markg@capozziadler.com -- Gabrielle
P. Kelerchian -- Gabriellek@capozziadler.com -- Capozzi Adler, in
Merion Station, Pennsylvania, Donald R. Reavey --
donr@capozziadler.com -- Capozzi Adler, in Harrisburg,
Pennsylvania, Counsel for the Appellees.
UNIVERSITY OF SOUTH FLORIDA: Denial of Moore Suit Dismissal Upheld
------------------------------------------------------------------
In the case, THE UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES,
Appellant v. VALERIEMARIE MOORE, Appellee, Case No. 2D21-2685 (Fla.
Dist. App.), the District Court of Appeal of Florida for the Second
District affirms the trial court's order denying USF's motion to
dismiss based on the defense of sovereign immunity without
prejudice to USF's right to assert the defense in a motion for
summary judgment.
I. Background
The University of South Florida Board of Trustees (USF) appeals a
trial court order denying its motion to dismiss in which it
asserted the defense of sovereign immunity. Ms. Moore filed the
underlying class action complaint against USF alleging claims for
breach of contract and unjust enrichment based on the collection of
student fees for on-campus services that were not offered due to
COVID-19. The order at issue granted USF's motion to dismiss Ms.
Moore's breach of contract claim for the limited purpose of
allowing Ms. Moore to attach her registration agreement to her
amended complaint, but it otherwise denied USF's motion to dismiss
on the merits of its sovereign immunity defense. The order also
dismissed Ms. Moore's unjust enrichment claim without prejudice to
her ability to add allegations to support her claim.
The issue raised in this appeal is whether the trial court erred in
denying USF's motion to dismiss the breach of contract claim based
on sovereign immunity. We affirm the trial court's refusal to
dismiss the claim at this stage of the proceeding, but our holding
is without prejudice to USF's right to again raise the defense of
sovereign immunity if supported by the facts.
Ms. Moore filed a class action complaint alleging that during all
semesters in 2020 and the Spring 2021 semester, USF collected fees
for on-campus services that were not offered due to COVID-19. She
alleged, "USF has improperly retained funds for services it did not
provide, in violation of its express contracts with students which
allow it to collect fees only for certain statutorily specified
purposes."
In its motion to dismiss, USF argued that the breach of contract
claim is barred by the doctrine of sovereign immunity. It alleged
that the complaint's assertion that Ms. Moore entered into an
express written contract with USF is a legal conclusion, which is
insufficient to establish a cause of action for breach of contract.
USF argued that two account statements attached to the complaint
were not student invoices, and it argued that even if an invoice
were attached, it would at most constitute a claim for breach of an
implied contract.
At the hearing on the motion to dismiss, USF argued that it only
waives sovereign immunity when it enters into an express, written
contract, and if there is a contract in this case, it is an implied
contract. Florida Defense Lawyers Association filed an amicus brief
in support of USF. The National Association of Consumer Advocates
filed an amicus brief in support of Ms. Moore.
II. Analysis
The complaint alleged that there was an express written agreement.
Ms. Moore's registration agreement was not provided to her prior to
filing the complaint, but when she received it, she filed it as an
attachment in support of her opposition to the motion to dismiss.
After the hearing on the motion to dismiss, the trial court granted
USF's motion to dismiss Ms. Moore's breach of contract claim for
the limited purpose of allowing Ms. Moore to attach the
registration agreement to her amended complaint.
The registration agreement states, "By clicking 'Submit Changes'
below, I am entering a legal, binding contract with USF and I
hereby acknowledge that I have read and understand the terms and
conditions of this registration agreement." Based on the clear
language of the registration agreement, Ms. Moore entered into a
legal, binding contract with USF.
USF argued at the hearing on its motion to dismiss that, even
assuming the registration agreement is an express written contract,
it does not set forth a promise by USF to provide any specific
services in exchange for student fees. Therefore, it contends, Ms.
Moore cannot establish that USF breached a provision of the
contract.
The Court of Appeal concludes that the trial court correctly
rejected this argument at this stage of the pleadings. First, it
notes that this argument was not raised in USF's motion to dismiss.
Further, a determination regarding whether the parties' "legal,
binding contract" included a promise to provide on-campus services
in exchange for fees is more appropriate at the summary judgment
stage. Although Ms. Moore has sufficiently pleaded the existence of
a contract, this is not necessarily "a typical contract situation
where there is an express document with delineated terms that a
plaintiff can reference."
Although USF argues in its brief that the "Registration Agreement
and the USF policies make no promises to Moore regarding any
specific services in return for her payment of student fees," USF's
policies are not included in USF's appendix and the transcript does
not reflect that the policies were provided to the trial court.
III. Conclusion
The Court of Appeal affirms the trial court order denying USF's
motion to dismiss based on the defense of sovereign immunity
without prejudice to USF's right to assert the defense in a motion
for summary judgment. The Opinion is subject to revision prior to
official publication.
A full-text copy of the Court's June 1, 2022 Opinion is available
at https://tinyurl.com/2p8ahmbj from Leagle.com.
Richard C. McCrea, Jr. -- mccrear@gtlaw.com -- and Cayla M. Page of
Greenberg Traurig, P.A., Tampa, for the Appellant.
Adam A. Schwartzbaum -- adams@moskowitz-law.com -- Adam Moskowitz,
Howard M. Bushman, and Barbara C. Lewis of The Moskowitz Law Firm,
PLLC, Coral Gables, for the Appellee.
Kansas R. Gooden -- kgooden@boydjen.com -- of Boyd & Jenerette,
P.A., Miami; and Robert J. Sniffen and Jeffrey D. Slanker of
Sniffen & Spellman, P.A., Tallahassee, for Amicus Curiae Florida
Defense Lawyers Association.
Janet R. Varnell -- jvarnell@vandwlaw.com -- of Varnell & Warwick,
P.A., Tampa, for Amicus Curiae The National Association of Consumer
Advocates.
VITAS HEALTHCARE: N.D. California Remands Reyes Suit to State Court
-------------------------------------------------------------------
Judge William H. Orrick of the U.S. District Court for the Northern
District of California remands the case, ERLINDA REYES, Plaintiff
v. VITAS HEALTHCARE CORPORATION OF CALIFORNIA, Defendant, Case No.
22-cv-01724-WHO (N.D. Cal.), to the California Superior Court for
the County of Santa Clara.
I. Background
Plaintiff Erlinda Reyes moves to remand her class action lawsuit
back to state court, arguing that Defendant Vitas' notice of
removal was untimely and that Vitas has not meet its burden in
showing that the amount of controversy exceeds the $5 million
required by the Class Action Fairness Act of 2005 ("CAFA").
Vitas operates hospice programs in more than a dozen states,
including California. Reyes worked for Vitas as a non-exempt home
health aide from June 2009 until she was terminated in March 2021.
On June 16, 2021, Reyes filed a class action complaint against
Vitas in California Superior Court for the County of Santa Clara
alleging seven causes of action, including failure to pay minimum
and overtime wages, rest period violations, wage statement
violations, and waiting time penalties, all in violation of
California labor law. She filed the FAC on Oct. 22, 2021, adding a
claim under the Private Attorneys General Act.
By failing to properly pay non-exempt employees minimum and
overtime wages and for non-compliant breaks, Reyes alleges that
Vitas failed to provide accurate wage statements in violation of
California Labor Code section 226. As a result, Reyes asserts that
she and class members are "each entitled to recover an initial
penalty of $50, and subsequent penalties of $100, up to an amount
not exceeding an aggregate penalty of $4,000 per plaintiff and per
every member" of the class under California Labor Code section
226(e).
On Jan. 13, 2022, Vitas served Reyes with a special set of
interrogatories. Special Interrogatory No. 4 read: "State the total
amount of DAMAGES YOU seek to recover for YOUR claim for wage
statement violations under the fourth cause of action in the
COMPLAINT. (As used in this interrogatory, 'DAMAGES' means the
total amount of money that YOU are seeking.)." The interrogatories
included the following definition: "As used in these
interrogatories, 'PLAINTIFF,' 'YOU,' and 'YOUR' mean and refer to
plaintiff Erlinda Reyes, her representatives, agents, attorneys,
investigators, or any person or entity acting on her behalf."
Ms. Reyes served Vitas her response on Feb. 15, 2022. Her response
to the above interrogatory read in part: "As a result of
defendant's failure to provide accurate itemized wage statements to
plaintiff, plaintiff seeks the statutory maximum amount allowable
under Labor Code Section 226(a)."
Vitas removed the case to federal court on March 17, 2022, arguing
that Reyes' interrogatory response allowed it to reasonably
ascertain for the first time that the amount in controversy
exceeded $5 million, satisfying the minimum required by CAFA. Reyes
moved to remand on April 15, 2022.
II. Discussion
Vitas relies on Reyes' interrogatory response in asserting that the
amount in controversy is satisfied. To explain why its removal was
timely, Vitas stated that the FAC failed to provide "any reasonably
quantifiable information as to the frequency of the Defendant's
alleged section 226 violations (which could range, on a penalty
basis, from $50 up to $4,000)." According to Vitas, the
interrogatory response -- that Reyes sought the "statutory maximum
amount allowable" under section 226 -- provided that clarity. Using
the number of class members and work weeks, Vitas calculated that
1,694 class members worked an average of 29 pay periods, resulting
in a penalty of $2,850 per employee. It arrived at a total
statutory penalty of more than $4.8 million which, coupled with a
calculation of $603,487 in attorneys' fees, surpassed CAFA's $5
million threshold.
Vitas argues that its assumptions are reasonable because the wage
statement claim is derivative of Reyes' other claims, which allege
violations resulting from uniform and unlawful practices. But,
Judge Orrick holds that this overlooks a crucial point: Reyes'
interrogatory response only stated the amount of damages she
sought, not what the class sought. This is clear from the face of
the interrogatory itself. It expressly states: "As used in these
interrogatories, 'PLAINTIFF,' 'YOU,' and 'YOUR' mean and refer to
Plaintiff Erlinda Reyes, her representatives, agents, attorneys,
investigators, or any person or entity acting on her behalf." The
class or class members are not included.
Special Interrogatory No. 4 then directs Reyes to: "State the total
amount of DAMAGES YOU seek to recover for YOUR claim for wage
statement violations under the fourth cause of action in the
COMPLAINT. It explicitly limits the amount of damages to what Reyes
-- and only -- Reyes seeks on the wage statement claim.
Any allegations of typicality do not help Vitas meet its burden.
Because the claims need not be identical, typicality provides no
grounds from which to extrapolate the amount in controversy.
The assumptions underlying Vitas's calculation of the amount in
controversy are unreasonable. It did not attempt to provide any
other supporting evidence. It has not met its burden in showing
that the amount in controversy exceeds the $5 million required by
CAFA. Accordingly, the case will be remanded to state court.
III. Conclusion
Judge Orrick concludes that Vitas has not met its burden in proving
the amount of controversy. Instead, it relied on an unreasonable
assumption based on the amount of damages articulated in an
interrogatory response that was limited to Reyes and did not extend
to the class as a whole.
Hence, the motion to remand the case to the California Superior
Court for the County of Santa Clara is granted, except for the
request for attorneys' fees, which is denied.
A full-text copy of the Court's June 1, 2022 Order is available at
https://tinyurl.com/asnza2pc from Leagle.com.
WALGREEN CO: Faces Naro Suit in Calif. Over Unpaid Wages
--------------------------------------------------------
SERENA NARO, individually and on behalf of all others similarly
situated; TRISH GONZALEZ, individually and on behalf of all others
similarly situated; AND THE CALIFORNIA LABOR AND WORKFORCE
DEVELOPMENT AGENCY ex rel. SERENA NARO AND TRISH GONAZALEZ, a
California governmental entity, Plaintiffs v. WALGREEN CO., an
Illinois corporation; and WALGREEN PHARMACY SERVICES MIDWEST, LLC,
an Illinois corporation; and DOES 1-15, Defendants, Case No.
3:22-cv-03170 (N.D. Cal., May 31, 2022) seeks redress from the
Defendants for unpaid wages, restitution, and statutory penalties
pursuant to the California Labor Code, the IWC Wage Order No. 7 and
the Unfair Competition Law.
According to the complaint, the Plaintiffs have been injured by
Defendants' failure to reimburse for necessary business expenses,
namely expenses incurred in purchasing replacement uniforms
required to be worn each shift; failure to pay minimum,
contractual, and overtime wages owed, specifically wages necessary
to compensate for wages Plaintiffs were forced to spend on
unreimbursed business expenses; failure to provide accurate wage
statements that detailed all wages actually earned, including wages
necessary to restore Plaintiffs to the required minimum,
contractual, and overtime wages for pay periods in which
unreimbursed purchases brought Plaintiffs' wages below those
required wage floors; and failure to pay all wages due at
separation from employment.
Plaintiff Naro was employed by the Defendants as a senior pharmacy
technician in Redding, California from approximately May 2021
through approximately September 2021.
Plaintiff Gonzalez worked as a store clerk from approximately
January 2008 through the present.
Walgreen Co. provides online medical products. The Company sells
prescription refills, health info, contact lenses, and other
products. Walgreen serves customers in the United States.[BN]
The Plaintiffs are represented by:
Randall B. Aiman-Smith, Esq.
Reed W.L. Marcy, Esq.
Hallie Von Rock, Esq.
Brent A. Robinson, Esq.
AIMAN-SMITH & MARCY
7677 Oakport St. Suite 1150
Oakland, CA 94621
Telephone: (510) 817-2711
Facsimile: (510) 562-6830
E-mail: ras@asmlawyers.com
rwlm@asmlawyers.com
hvr@asmlawyers.com
bar@asmlawyers.com
*********
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