/raid1/www/Hosts/bankrupt/CAR_Public/220627.mbx
C L A S S A C T I O N R E P O R T E R
Monday, June 27, 2022, Vol. 24, No. 121
Headlines
11578243 CANADA: McMonigle Seeks to Certify Class
3M COMPANY: Feeney Sues Over Exposure to Toxic Film-Forming Foams
3M COMPANY: Foster Sues Over Exposure to Toxic Foams & Chemicals
3M COMPANY: Webber Sues Over Exposure to Highly Toxic Chemicals
78-90 LAKEVIEW: Fails to Adequately Reimburse Costs, McLarney Says
ALBERTSONS COMPANIES: Sued Over Mislabeled Pain Reliever Drugs
ALLBIRDS INC: New York Judge Dismisses Environmental Class Action
ALLEGHENY COUNTY, PA: Faces Suit Over Inadequate Mental Health Care
ALLIANZ LIFE: Small Sues Over Refusal to Comply to Provisions
ALPHABET INC: Rhode Island Seeks to Certify Class
ALTA CALIFORNIA: Broughton Files Suit in Cal. Super. Ct.
AMARIN CORP: Third Cir. Affirms Dismissal of Securities Class Suit
AMAZON.COM INC: Class Action Mulled Over Cancellation Process
AMERICAN ELECTRONIC: Fails to Pay Engineers' OT Wages, Jackson Says
ANADARKO PETROLEUM: Gros Seeks OT Pay for Client Reps Under FLSA
ANADARKO PETROLEUM: Heaton Seeks OT Pay for Field Superintendents
APIECE APART: Web Site Not Accessible to Blind, Hanyzkiewicz Says
APPLE INC: Faces GBP768-MM iPhone Throttling Class Action in UK
APPLE INC: Must Face Class Action Over "iTunes Gift Card Scam"
APPLE INC: Wins Bid to Dismiss Crittenden's 1st Amended Complaint
APYX MEDICAL: Klein Law Firm Reminds of August 5 Deadline
APYX MEDICAL: Wolf Haldenstein Reminds of August 5 Deadline
ARQIT QUANTUM: Kuznicki Law Reminds of July 5 Deadline
BEARBOTTOM CLOTHING: Hernandez Files ADA Suit in S.D. New York
BELL BROTHER'S HEATING: Mogess Files Suit in Cal. Super. Ct.
BINANCE.US: Dinsmore & Shohl Attorney Discusses Class Action
BINANCE.US: Securities Class Action May Face Hurdles
BLUE CROSS: Among Defendants in Medical Cannabis Class Action
BP EXPLORATION: 11th Cir. Upholds Summary Judgment in Causey Suit
BP EXPLORATION: Court Dismisses Coleman's Complaint With Prejudice
BP EXPLORATION: Summary Judgment Bid in Walker Suit Partly OK'd
BREVILLE PTY: Class Action Mulled Over Defective Countertop Ovens
BRIGHT HORIZONS: Torres Files Suit in S.D. New York
BUBBIES FINE FOODS: Hernandez Files ADA Suit in S.D. New York
BZX DAO: Sheppard Mullin Attorneys Discuss Liability Class Action
C&C VERDE: Faces Consumer Fraud Suit Over Unfair Business Practices
C.R. ENGLAND: Bohler Files Suit in D. Utah
CANADA: Faces Suit Over Military Members' Leaked Personal Info
CAREDX INC: Gross Law Firm Reminds of July 22 Deadline
CAREDX INC: Levi & Korsinsky Reminds of July 22 Deadline
CARIBBEAN SPA LLC: Fails to Pay Proper Wages, Ayala Suit Alleges
CEDAR RECYCLING: Certification of Rest & Meal Breaks Claim Affirmed
CELSIUS NETWORK: Faces Suit Over Unfair Business Practices
CHIPOTLE SERVICES: Intervention Denial Appeal in Turley Suit Tossed
CHURCH & DWIGHT: Sued Over Arm & Hammer Laundry Detergent Claims
COASTAL CONCORD: Peralta Files Suit in Cal. Super. Ct.
COMPLETE SOLIDS: Underpays Technicians, Copeland Suit Claims
CONOPCO INC: Court Dismisses Bernstein's First Amended Complaint
CORNELL UNIVERSITY: Class Cert. Bid Must be Filed by Sept. 30
COVETRUS INC: Juan Monteverde Discloes Securities Class Action
CREDIT CONTROL: Coleman FDCPA Suit Removed to M.D. Florida
CURALEAF INC: Williamson Sues Over Failure to Label CBS Drops
CUYAHOGA COUNTY, OH: Denial of Class Cert. in Tarrify Suit Affirmed
DEERE & CO: Farms Sues Over Agri Equipment Repairs Monopoly
DEL TACO: Harris Files Suit in Cal. Super. Ct.
DELAWARE: District Court Dismisses Jarvis v. Warden May of JTVCC
DENTONS DAVIS: Fails to Timely Provide COBRA Notice, Schriner Says
DENTSPLY SIRONA: Gross Law Firm Reminds of August 1 Deadline
DIGITAL TURBINE: Bernstein Liebhard Reminds of August 5 Deadline
DIGITAL TURBINE: Gross Law Firm Reminds of August 5 Deadline
DIGITAL TURBINE: Klein Law Firm Reminds of August 5 Deadline
DOTDASH MEREDITH: People.com Registered Users File Class Action
DSC ELITE FINANCIAL: Sloatman Files TCPA Suit in C.D. California
DUKE REALTY: Juan Monteverde Investigates Prologis Acquisition
EASTPOINT RECOVERY: Ergas Wins Bid for Review of Summary Judgment
EDGEWELL PERSONAL: Leboeuf Files Suit in N.D. New York
ENERGY TRANSFER: Glancy Prongay Reminds of August 2 Deadline
ENERGY TRANSFER: Klein Law Firm Reminds of August 2 Deadline
EVELO INC: Quezada Files ADA Suit in S.D. New York
EXPERIAN INFORMATION: Garcia Sues Over Inaccurate Information
EXPRESS LLC: Maddy Files ADA Suit in S.D. New York
FAMILY DOLLAR: Brown Suit Transferred to W.D. Tennessee
FARADAY FUTURE: Breaches of Fiduciary Duties, Yun Class Suit Says
GEORGIA: Seeks to Continue Hearing on Summary Judgment
GOHEALTH LLC: Clough Sues Over Unsolicited Telemarketing Calls
GOOGLE LLC: Brown, et al., Seek to Certify Two Classes
GOOGLE LLC: Judge Allows Privacy Class Action to Proceed
GOOGLE LLC: Must Face Class Action Over Users' Personal Information
GOOGLE LLC: Must Face Consumer Privacy Class Action
GOOGLE LLC: Sept. 24 BIPA Settlement Claims Filing Deadline Set
GRAPEVINE DISTRIBUTORS: Must Submit Bid for Initial OK of Deal
HORIZON ACTUARIAL: Faces Class Action Over 2021 Data Breach
HYUNDAI MOTOR: Faces Class Action Suit Over Defective Seat Belts
HYUNDAI MOTOR: Faces Class Suit in Quebec Over Vehicles' Fire Risk
HYUNDAI MOTOR: Pretensioner Recall Causes Class Action Lawsuit
INMAR INC: Must File Class Cert Response by June 28
INNOVATIVE HEALTH: Wins Bid for Summary Judgment in Bhambhani Suit
IONQ INC: Gross Law Firm Reminds of August 1 Deadline
IONQ INC: Johnson Fistel Reminds of August 1 Deadline
IT WORKS: Brooks' Bid for Provisional Class Certification Junked
J.M. SMUCKER: Faces Two Class Actions Following Voluntary Recall
KROGER CO: Post-Certification Scheduling Conference Sought
LEGION ATHLETICS: Nutritional Drinks Deceptively Labeled, Suit Says
MERCEDES-BENZ USA: Amended Class Certification Discovery Filed
MERCEDES-BENZ USA: Loses Bid to Dismiss Hazdovac's 2nd Amended Suit
MERRILL GARDENS: Ramirez Has Leave to File First Amended Complaint
META PLATFORMS: Settles Class Action Lawsuit Over BIPA Violations
MILWAUKEE ELECTRIC: Confer Sues Over Mislabeled Abrasive Wheels
MOM ENTERPRISES: Case Management Order Entered in Murphy Suit
MULLEN AUTOMOTIVE: Faces Class Action Over Misleading Statements
NATIONAL SECURITY GROUP: Faces Cohen Shareholder Suit
NATIONAL SECURITY GROUP: Faces Dyke Securities Class Suit
NAVIENT SOLUTIONS: Summary Judgment in Panzarella TCPA Suit Upheld
NESTLE USA: Infant Formula Not Nutritionally Appropriate, Suit Says
NISSAN CANADA: Court Approves CVT Class Action Settlement
NUTRABIO LABS: Dietary Supplements Misbranded, Helems Suit Alleges
OARS + ALPS: Faces Class Action Over "Natural" Claims
OKTA INC: Gross Law Firm Reminds of July 19 Deadline
ORACLE CORP: Women Stumble in Pay Bias Suit While Google Cuts Deal
OSCAR HEALTH: Kuznicki Law Reminds of July 11 Deadline
OUTSET MEDICAL: Johnson Fistel Investigates Securities Claims
OVERHEAD DOOR: Villers Sues Over Production Employees' Unpaid OT
PACESETTER PERSONNEL: Seeks to Decertify Class in Villarino
PACIFIC STEEL: Oct. 30 Deadline to File Class Cert. Bid Sought
PAGA MANAGEMENT: Hamel Sues Over Failure to Reimburse Expenses
PEOPLECONNECT INC: Loses Bid for Judgment on Pleadings in Callahan
PSP JOINT: Fails to Pay Wages Under Labor Code, Webber Suit Says
QUALCOMM INC: Faces Class Suit in Calif. Over Alleged Market Abuse
RCN TELECOM: Settles Class Action Over Late Fees for $6.65MM
RESEARCH STRATEGIES: Duverger Files Bid Class Certification
REV GROUP: Parties Seek Initial OK of Settlement
ROCKY MOUNTAIN: Parties Seek Conditional Status of Class Action
RUST-OLEUM CORP: Filing of Class Status Bid Due Sept. 27
SAINT JOHN, NB: Judge Tosses Class Action Over Leaky Pipes
SAN DIEGO FAMILY: Settles 2020 Data Breach Class Action for $1MM
SAVE OLD GROWTH: Faces Suit in British Columbia Over Blockades
SHARI'S MANAGEMENT: Gomez Sues Over Failure to Pay Minimum Wages
SHIELDS HEALTH: Faces Class Action Over Alleged Data Breach
SPERO THERAPEUTICS: Levi & Korsinsky Reminds of July 25 Deadline
STRYKER CORP: Fails to Pay OT Wages for Sales Reps Under FLSA
SUN CONSTRUCTION: Partial Judgment in Markiewicz Suit Affirmed
TECHTRONIC INDUSTRIES: Sartorius Sues Over Defective Wheel Products
TELADOC HEALTH: Gross Law Firm Reminds of August 5 Deadline
TELADOC HEALTH: Wolf Haldenstein Reminds of August 5 Deadline
TERMINIX INT'L: Bid to Arbitrate & Dismiss Greene Suit Partly OK'd
TEXAS: Court Refuses to Certify Falconer v. Collier as Class Action
TRINET HR: Huang, et al., Seeks Denial of Bid to Junk Suit
TRINITY PROPERTY: Court Denies Bid to Dismiss Calonia BIPA Suit
TRUIST BANK: Third Circuit Affirms Dismissal of Gericke Class Suit
TRUSTPILOT INC: 2nd Circuit Affirms Class Action Dismissal
TUPPERWARE BRANDS: Bernstein Liebhard Reminds of Aug. 15 Deadline
TUPPERWARE BRANDS: Bragar Eagel Reminds of August 15 Deadline
TUPPERWARE BRANDS: Pomerantz LLP Reminds of August 15 Deadline
TUPPERWARE BRANDS: Robbins Geller Reminds of August 15 Deadline
UNILEVER PLC: Faces Class in New York Over Drop in Share Price
UNILEVER PLC: Robbins Geller Reminds of August 15 Deadline
UNILEVER UNITED: August 16 Deadline to Oppose Class Cert Bid Sought
UNITED STATES: Detained Foreign Nationals Can't File Class Suits
UNITED STATES: New Jersey Court Tosses Noriega's Amended Complaint
UPSTART INC: Klein Law Firm Reminds of July 12 Deadline
US WELL: Fifth Circuit Flips Summary Judgment Order in Easom Suit
VAXART INC: Court Junks Jaquith Class Suit
VERRICA PHARMA: Gross Law Firm Reminds of August 5 Deadline
VERRICA PHARMA: Robbins LLP Reminds of August 5 Deadline
VERRICA PHARMA: Rosen Law Reminds of August 5 Deadline
VERRICA PHARMACEUTICALS: Bragar Eagel Reminds of Aug. 5 Deadline
VIKING RIVER: Supreme Court Rules on FAA Claims Issue
VIRGINIA DOC: Thorpe, et al., File Bid for Class Status
VIRGINIA: Must Defend Supermax Solitary Confinement Suit
VMWARE INC: Approval of Settlement in Putative Action Sought
WASTE MANAGEMENT: Bronstein Gewirtz Reminds of August 8 Deadline
WASTE MANAGEMENT: Rosen Law Firm Reminds of August 8 Deadline
WILLAMETTE VALLEY: Kelley Must File Class Cert Bid by Sept. 30
WVU HOSPITALS UNIVERSITY: 3rd Petition Writ in Class Action Denied
ZUMIEZ INC: Settlement in Herrera Suit Wins Initial Nod
[*] BC Residents, Municipalities Urged to Support Suit v. Oil Cos.
*********
11578243 CANADA: McMonigle Seeks to Certify Class
-------------------------------------------------
In the class action lawsuit captioned as JANICE MCMONIGLE; AMBERLY
OGDEN; MOLLY SLIWINSKI; and LAUREN WELLS, v. 11578243 CANADA, INC.
d/b/a BLACKOXYGEN ORGANICS; BLACKOXYGEN ORGANICS USA, INC.; MARC
SAINT-ONGE; and CARLO GARIBALDI, Case No. 1:21-cv-04790-LMM (N.D.
Ga.), the Plaintiffs ask the Court to enter an order:
1. certifying a class; and
2. appointing them as the class representatives and their
attorneys as counsel for the settlement class.
This case involves the marketing and sale of BlackOxygen brand
nutritional supplements. As articulated in Plaintiffs' Complaint,
the uncontested facts establish that the subject supplements were
specifically marketed for use by adults, children, and pregnant or
nursing women. Although most organic products contain trace amounts
of heavy metals, the products at issue contain unsafe levels of
toxic heavy metals that render them unsafe and unfit for their
intended use.
The Plaintiffs and each proposed class member are purchasers of the
products. As sold to consumers, the subject products contain
dangerously high levels of toxic heavy metals. BlackOxygen knows
that its customers trust the quality of its products, and that its
customers expect BlackOxygen products to have safe levels of heavy
metals, if they are present at all. BlackOxygen affirmatively holds
the subject products out as possessing high quality organic
ingredients free of harmful toxins, contaminants, or chemicals. No
reasonable consumer seeing BlackOxygen's marketing would expect the
subject products to contain unsafe levels of toxic heavy metals.
Furthermore, reasonable consumers, like Plaintiffs, would consider
the mere inclusion of unsafe levels of toxic heavy metals a
material fact when considering whether to purchase the subject
products. As a matter of state and federal law, the presence of
unsafe levels of toxic heavy metals makes the subject products
adulterated, unlawful, and worthless. And even if not, a
determination of whether the subject product is worthless is a
matter appropriately determined on a class wide basis. The
Plaintiffs and the class members were thus harmed by purchasing
and/or consuming the subject products, and Plaintiffs and the class
members are entitled to recover damages from Defendants.
A copy of the Plaintiffs' motion to certify class dated June 21,
2022 is available from PacerMonitor.com at https://bit.ly/3QGb4Rt
at no extra charge.[CC]
The Plaintiffs are represented by:
Matthew Q. Wetherington, Esq.
Robert N. Friedman, Esq.
Eli J. Cohen, Esq.
WETHERINGTON LAW FIRM, P.C.
1800 Peachtree St., NW, Suite 370
Atlanta, GA 30309
Telephone: (404) 888-4444
E-mail: matt@wfirm.com
robert@wfirm.com
eli@wfirm.com
3M COMPANY: Feeney Sues Over Exposure to Toxic Film-Forming Foams
-----------------------------------------------------------------
Michael Feeney, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS
INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE
FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN
PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY
FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Case No. 2:22-cv-01690-RMG (D.S.C., May 27,
2022), is brought for damages for personal injury resulting from
exposure to aqueous film-forming foams ("AFFF") containing the
toxic chemicals collectively known as per and polyfluoroalkyl
substances ("PFAS"). PFAS includes, but is not limited to,
perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid
("PFOS") and related chemicals including those that degrade to PFOA
and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires. The Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter and was diagnosed with
testicular cancer as a result of exposure to the Defendants' AFFF
products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Phone: 631-600-0000
Facsimile: 631-543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Phone: 205-328-9200
Facsimile: 205-328-9456
3M COMPANY: Foster Sues Over Exposure to Toxic Foams & Chemicals
----------------------------------------------------------------
Richard Foster, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS
INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE
FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN
PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY
FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Case No. 2:22-cv-01693-RMG (D.S.C., May 27,
2022), is brought for damages for personal injury resulting from
exposure to aqueous film-forming foams ("AFFF") containing the
toxic chemicals collectively known as per and polyfluoroalkyl
substances ("PFAS"). PFAS includes, but is not limited to,
perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid
("PFOS") and related chemicals including those that degrade to PFOA
and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires. The Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter and was diagnosed with
prostate cancer as a result of exposure to the Defendants' AFFF
products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Phone: 631-600-0000
Facsimile: 631-543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Phone: 205-328-9200
Facsimile: 205-328-9456
3M COMPANY: Webber Sues Over Exposure to Highly Toxic Chemicals
---------------------------------------------------------------
Elijah Webber, and other similarly situated v. 3M COMPANY fka
MINNESOTA MINING & MANUFACTURING CO.; BUCKEYE FIRE EQUIPMENT CO.;
CHEMGUARD, INC.; CORTEVA, INC.; DUPONT DE NEMOURS, INC.; DYNAX
CORPORATION; E.I. DUPONT DE NEMOURS & CO.; KIDDE-FENWALL, INC.;
KIDDE FIRE FIGHTING, INC.; KIDDE PLC, INC.; NATIONAL FOAM, INC.;
THE CHEMOURS CO.; THE CHEMOURS COMPANY FC, LLC; TYCO FIRE PRODUCTS,
LP; UTC FIRE & SECURITY AMERICA'S, INC; and DOES 1 to 100,
INCLUSIVE;, Case No. 2:22-cv-01682-RMG (D.S.C., May 27, 2022), is
brought involving highly toxic chemicals which have earned the
designation "the forever chemicals" because they do not breakdown
and their insidious nature allows them to travel through soil and
into groundwater while maintaining their deadly nature for
decades.
This action deals with Aqueous Film Forming Foams ("AFFF") that
were designed, manufactured and sold as firefighting compounds.
AFFF compounding includes Perfluoro octane Sulfonate (commonly
known as "PFOS"), PerfluorooctanoicAcid (commonly known as "PFOA"),
and/or other Per-and Polyfluoroalkyl substances (together, with
PFOS and PFOA, commonly known as "PFAS") which are manmade
organofluorine compounds (in this case commonly referred to as
fluorinated surfactants/fluorocarbon surfactants). The compounds
are designed to lower the surface tension of water so as to create
a firefighting foam to quell/smother (cutting off oxygen), for
example, jet fuel fires.
AFFF is created by mixing fluorine-free hydrocarbon foaming
substances (chemical agents designed for a particular purpose) with
fluorinated surfactants and mixing that with water which creates an
aqueous film, i.e.: Aqueous Film Forming Foams ("AFFF"). The
manufacturing processes involved in this action are asserted to
have used fluorocarbon surfactants which are believed to include
PFOS and PFOA (and/or other per fluorinated compounds known as
"PFC"' are also believed to be in the mix. PFC's are posited to
break down in PFOS and PFOA).
The Plaintiff joined the US Army and was subsequently assigned to
Fort Devens, MA (2014-2021). The Plaintiff lived/worked on Base at
Fort Devens while on Guard duty using and drinking the water. Fort
Devens has a PFAS environmental contamination level of 2,749ppt
(EPA max of 70ppt). In 2020, Webber was diagnosed with testicular
cancer and commenced on-going medical treatment inclusive of
surgical intervention via a left partial orchiectomy. As known by
the Defendants, testicular cancer is a disease linked to PFAS
contamination. Webber did not discover that PFAS was a cause of the
harm until Summer 2020, when he saw internet information, says the
complaint.
The Plaintiff was a member of the U.S. Army, who during his service
was stationed at Fort Devens, a military installation identified as
being contaminated through use of the toxic chemicals which are the
subject of this action and suffers from testicular cancer,
inclusive of undergoing surgical intervention (orchiectomy).
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of
PFAS-containing AFFF products or underlying PFAS-containing
chemicals used in AFFF production.[BN]
The Plaintiff is represented by:
Jeremy C. Shafer, Esq.
BANNER LEGAL
445 Marine View Avenue, Suite 100
Del Mar, CA 92014
Phone: (760) 479-5404
Email: jshafer@bannerlegal.com
- and -
S. James Boumil, Esq.
BOUMIL LAW OFFICES
120 Fairmount Street
Lowell, MA, 01852
Phone: (978) 458-0507
Email: sjboumil@boumil-law.com
- and -
Konstantine Kyros, Esq.
KYROS LAW
17 Miles Rd.
Hingham, MA 02043
Phone: (800) 934-2921
Email: kon@kyroslaw.com
78-90 LAKEVIEW: Fails to Adequately Reimburse Costs, McLarney Says
------------------------------------------------------------------
KURTIS MCLARNEY, individually and on behalf of similarly situated
persons, Plaintiff v. 78-90 LAKEVIEW AVENUE, LLC and GEOFFREY D.
SCHEMBECHLER, Defendants, Case No. 1:22-cv-10919 (D. Mass., June
13, 2022) alleges the Defendants of violations of the Fair Labor
Standards Act.
The Plaintiff was employed by the Defendants from approximately
January 2015 to April 2020 as a delivery driver at the Defendants'
Domino's store located in Westford, Massachusetts.
According to the complaint, the Defendants required the Plaintiff
and other similarly situated delivery drivers to maintain and pay
for safe, legally-operable, and insured automobiles while
delivering pizza and other food items. Consequently, they have
incurred automobile expenses while working for the primary benefits
of the Defendants. However, the Defendants have employed a flawed
reimbursement policy which reimburses delivery drivers below the
IRS business mileage reimbursement rate and/or much less than a
reasonable approximation of its drivers' automobile expenses. As a
result of the Defendants' flawed reimbursement policy, the
Plaintiff's 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 for
himself and other similarly situated delivery drivers to recover
compensatory damages against the Defendants, as well as liquidated
damages, litigation costs and attorney's fees, pre- and
post-judgment interest, and other relief as the Court deems fair
and equitable.
78-90 Lakeview Avenue, LLC operate numerous Domino's Pizza
franchise stores. Geoffrey D. Schembechler is the owner and
director of the Corporate Defendant. [BN]
The Plaintiff is represented by:
Anthony A. Orlandi, Esq.
BRANSTETTER, STRANCH & JENNINGS, PLLC
223 Rosa Parks Ave., Suite 200
Nashville, TN 37203
Tel: (615) 254-8801
Fax: (615) 255-5419
E-mail: aorlandi@bsjfirm.com
ALBERTSONS COMPANIES: Sued Over Mislabeled Pain Reliever Drugs
--------------------------------------------------------------
CHRISTINE BISCHOFF, individually and on behalf of all others
similarly situated, Plaintiff v. ALBERTSONS COMPANIES, INC.; ACME
MARKETS, INC.; SAFEWAY, INC.; BETTER LIVING BRANDS, LLC; and LNK
INTERNATIONAL, INC., Defendants, Case No. 7:22-cv-04961 (S.D.N.Y.,
June 13, 2022) is class action lawsuit against the Defendants for
cheating customers by uniformly advertising, marketing, and selling
generic versions of certain over-the-counter drugs, including
analgesic or pain-relieving medicines using acetaminophen under the
brand name "Signature Care" (the "Class Rapid Release Gelcaps" or
the "Products"), prominently bearing the misrepresentation "Rapid
Release" (the "Rapid Release Claims" or "Misrepresentation").
The Plaintiff alleges in the complaint that contrary to the
Defendants' claims, the purported "Rapid Release" Products actually
dissolve slower than Signature Care-branded non-rapid release
acetaminophen products made and sold in tablet and caplet form.
Since the release of the Class Rapid Release Gelcaps, Defendants
have misled, and continue to mislead, consumers about the nature,
quality, and effectiveness of the Products through their
advertising and labeling. Specifically, Defendants market the Class
Rapid Release Gelcaps as "comparable to Tylenol Extra Strength
Rapid Release Gels," even though they actually dissolve slower than
Defendants' acetaminophen in traditional tablet and caplet form,
says the suit.
The Plaintiff and members of the putative Class and Subclass would
not have purchased the Class Rapid Release Gelcaps had the
Defendants disclosed accurate information about the products and
not misled them into believing that the Class Rapid Release Gelcaps
would provide faster relief than other, cheaper acetaminophen
products, such as the traditional Signature Care non-rapid release
acetaminophen sold in caplet and tablet form, the suit added.
ALBERTSONS COMPANIES, INC. retails food and drugs products. The
Company distributes fruits, vegetables, canned items, medicines,
and other related goods. [BN]
The Plaintiff is represented by:
Neal J. Deckant, Esq.
Julia K. Venditti, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd, Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Facsimile: (925) 407-2700
Email: ndeckant@bursor.com
jvenditti@bursor.com
ALLBIRDS INC: New York Judge Dismisses Environmental Class Action
-----------------------------------------------------------------
Baldassare Vinti, Esq., Jennifer Yang, Esq., and Amy B. Gordon,
Esq., of Proskauer Rose LLP, in an article for The National Law
Review, report that Judge Cathy Seibel of the Southern District of
New York recently dismissed a putative class action lawsuit
challenging various environmental impact and animal welfare claims
made by Allbirds in ads for its wool shoes. In doing so, the court
determined that plaintiff's allegations, which largely consisted of
criticisms of the wool industry in general, did not plausibly
allege that Allbirds's descriptions of its own practices were false
or misleading. Dwyer v. Allbirds, Inc., 7:21-cv-05238-CS (S.D.N.Y.
Apr. 18, 2022).
Plaintiff's complaint focused on two categories of claims: 1)
claims about animal welfare, including claims that Allbirds's sheep
"Live The Good Life" and are treated "humanely," and depictions of
Allbirds's sheep as "happy," and living in "pastoral settings"; and
2) claims about Allbirds's environmental impact, including
"Sustainability Meets Style," "Low Carbon Footprint,"
"Environmentally Friendly," "Made with Sustainable Wool,"
"Reversing Climate Change," and "Our Sustainable Practices."
Animal Welfare Claims
Plaintiff alleged Allbirds's animal welfare claims are misleading
because "[e]conomic realities dictate -- and require -- that all
sheep bred for wool are also slaughtered and sold for their meat,"
and investigations of more than 100 large-scale wool operations
have revealed inhumane conditions. According to plaintiff,
Allbirds's sheep cannot "live the good life" when it's impossible
to provide individual care to sheep raised in large numbers.
The court rejected plaintiff's claims because plaintiff alleged
nothing related to the wool used by Allbirds in particular. For
example, the court noted that plaintiff failed to plausibly allege
that Allbirds works with any of the 100 farms in the cited
investigation. And unlike in Lee v. Canada Goose -- a case we
previously blogged about involving similar allegations -- plaintiff
failed to plausibly narrow Allbirds's sourcing to regions or
companies highly likely to use inhumane methods.
Plaintiff also criticized Allbirds's certified wool supplier, but
the court found that plaintiff's allegations went to the supplier's
methodology for certifying farms and did not amount to allegations
that inhumane practices occur at those farms.
Further, in a decision reminiscent of Ehlers v. Ben & Jerry's, the
court found that the depictions of "happy" sheep in "pastoral
settings" were "obviously intended to be humorous" and would not be
understood as making a factual claim on which a reasonable consumer
would rely. The court called these depictions and the statement
that "Our Sheep Live The Good Life" "classic puffery."
Environmental Impact Claims
Plaintiff alleged Allbirds's environmental impact claims are
misleading because they are based on tools that only measure the
carbon footprint of each product, without assessing wool
production's other environmental impacts. According to plaintiff,
if Allbirds had calculated the carbon footprint from sheep farming
overall, as opposed to the carbon footprint generated only by its
products, its environmental impact figures would be significantly
higher.
The court found that merely criticizing this methodology was not
enough to state a claim. Importantly, the court noted that
Allbirds's advertising makes clear what is included in its carbon
footprint calculation. Although plaintiff believed Allbirds should
have used a different method to measure its carbon footprint –
one that includes the entire lifecycle of wool production – the
court found this does not plausibly allege that Allbirds's
environmental impact claims are materially misleading.
As discussed in our post on Lee v. Canada Goose, animal welfare and
sustainability-related class actions are on the rise. This decision
serves as a reminder that advertisers should be careful not to
overstate the breadth of their carbon footprint analyses. When
making carbon footprint claims, advertisers should be sure to
disclose any limitations or assumptions that go into their claims
(as Allbirds did here). Additionally, the court's decision here may
curtail the impact of Lee on future class actions of this kind. In
fact, Judge Seibel explicitly questioned the reasoning of Lee,
noting that she is "not sure [she] would have reached the same
conclusion." Following Dwyer, Lee may effectively be cabined to
cases where a plaintiff is able to plausibly narrow an advertiser's
sourcing to companies that use inhumane or unsustainable practices.
In other words, generalized allegations about industry practices
may not be sufficient. Watch this space for further developments.
[GN]
ALLEGHENY COUNTY, PA: Faces Suit Over Inadequate Mental Health Care
-------------------------------------------------------------------
Jordana Rosenfeld at pghcitypaper.com reports that lawyers from two
advocacy groups and a national law firm have filed a motion in
federal court seeking class-action relief for all incarcerated
people at the Allegheny County Jail who require mental health
care.
The motion alleges severe and systemic violations of the U.S.
Constitution and the Americans with Disabilities Act for what
plaintiffs describe as the jail's "failure to provide adequate
mental health care and its discriminatory and brutal treatment of
people with psychiatric disabilities."
The motion includes "compelling evidence" found over a 20-month
period of discovery that Allegheny County has violated the rights
of incarcerated people with psychiatric disabilities by failing to
provide them with proper treatment and subjecting them to prolonged
solitary confinement and routine excessive force, according to a
June 9 release from the Pennsylvania Institutional Law Project.
"ACJ is failing to provide any meaningful mental health care to
those in its custody, and in many cases is actually punishing
individuals for seeking help," says Alexandra Morgan-Kurtz of the
PILP. "We have seen evidence that people incarcerated at ACJ have
suffered as the staff at best turned a blind eye and at other times
assaulted individuals for manifestations of their mental illness.
Their conditions have worsened and ACJ's already high suicide
completion and attempt rates have continued to increase. It's
absolutely intolerable and inhumane."
A spokesperson for the jail declined to comment on the pending
litigation as a matter of policy.
Class action lawsuits seek relief for a large number of plaintiffs
facing similar circumstances, especially if it would be financially
impractical to pursue each claim as a separate case. To initiate a
class action suit, a judge must first certify that the group of
individuals in question form a valid class.
In the recent motion, the plaintiffs define their class as "all
individuals currently or in the future incarcerated at Allegheny
County Jail and who have, or will in the future have, a serious
mental health diagnosis, disorder or disability as recognized in
the DSM-V, including but not limited to depression, anxiety,
post-traumatic stress disorder, schizophrenia, bipolar disorder, or
borderline personality disorder." [GN]
ALLIANZ LIFE: Small Sues Over Refusal to Comply to Provisions
-------------------------------------------------------------
Lawanda D. Small, individually, and on behalf of the class v.
ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA, a Minnesota
Corporation; and DOES 1-10, inclusive, Case No. 22STCV17838 (Cal.
Super. Ct., May 31, 2022), is brought against the Defendant who
refuses to comply with mandatory provisions of the California
Insurance Code as well as California common law regulating the
lapse and termination of life insurance policies.
Since January 1, 2013, Allianz and other related entities have
systematically and purposely failed to provide certain classes of
policy owners, insureds, assignees and others, proper notices of
pending lapse or termination. Allianz has refused to provide
required grace periods. It has also failed to notify thousands of
policy owners of their right to designate someone to receive
critical notices and information regarding life insurance, despite
being required to do so on an annual basis.
As a result, Allianz has failed to properly administer policies,
evaluate the status of payments due under policies, and pay claims
to beneficiaries for policies improperly lapsed or terminated.
Indeed, thousands of policy owners and beneficiaries have lost, and
continue to lose, the benefit, value and security of their life
insurance; have been, and continue to be, forced into unnecessary
reinstatements; and in many instances have lost all reasonable
access to any insurance at all. Ultimately, the Defendant has
robbed thousands of their customers and beneficiaries of the
investment in such policies, including policy benefits as well as
the security intended to be provided from such insurance.
The injury to Allianz's customers and beneficiaries continues
today, with policyholders currently paying unnecessary or inflated
premiums, or unknowingly suffering under improper forced
"reinstatements" which diminish the value or conditions of the
policies. And there are numerous policyholders whom Allianz told
have no insurance, but whose policies are, unbeknownst to them,
still in force and in some situations with benefits being owed and
unpaid.
The Plaintiff and the deceased, Mr. Small, are victims of Allianz's
failures. Plaintiff, on behalf of herself and others similarly
situated brings this action for injunctive relief intended to
ensure Allianz's future compliance with these important consumer
safeguards, to ensure payment of important policy benefits as they
become due, and to prevent the ongoing violation of these important
statutes, says the complaint.
The Plaintiff has been a co-owner and beneficiary of the life
insurance policy insuring herself and her former husband Carl
Small.
Allianz is one of the largest sellers of life insurance in
California by market share.[BN]
The Plaintiff is represented by:
Craig M. Nicholas, Esq.
Alex Tomasevic, Esq.
NICHOLAS & TOMASEVIC, LLP
225 Broadway, 19th Floor
San Diego, CA 92101
Phone: (619) 325-0492
Fax: (619) 325-0496
Email: cnicholas@nicholaslaw.org
atomasevic@nicholaslaw.org
Jack B. Winters, Jr., Esq.
Georg M. Capielo, Esq.
Sarah Ball, Esq.
WINTERS & ASSOCIATES
8489 La Mesa Boulevard
La Mesa, CA 91942
Phone: (619) 234-9000
Fax: (619) 750-0413
Email: jackbwinters@earthlink.net
gcapielo@einsurelaw.com
sball@einsurelaw.com
ALPHABET INC: Rhode Island Seeks to Certify Class
-------------------------------------------------
In the class action lawsuit re ALPHABET, INC. SECURITIES
LITIGATION, Case No. 4:18-cv-06245-JSW (N.D. Cal.), Lead Plaintiff
State of Rhode Island moves to certify a class under Federal Rule
of Civil Procedure 23(a) and (b)(3), appoint Rhode Island as Class
Representative, and appoint Robbins Geller Rudman & Dowd LLP as
Class Counsel pursuant to Federal Rule of Civil Procedure 23(g):
"All persons and entities who purchased or otherwise acquired
Class A and/or Class C stock of Alphabet Inc. during the
period from April 23, 2018 through October 7, 2018,
inclusive."
Excluded from the Class are defendants and their families,
the officers, directors, and affiliates of defendants, at all
relevant times, members of their immediate families and their
legal representatives, heirs, successors or assigns, and any
entity in which defendants have or had a controlling
interest.
Lead Plaintiff is a public pension fund that provides retirement,
disability, and survivor benefits to the State of Rhode Island’s
employees, public school teachers, judges, state police,
participating municipal police and fire employees, and general
employees of participating municipalities.
Rhode Island manages investments of over $10 billion. Id. Rhode
Island acquired 36,896 shares of Alphabet Class A and Class C stock
during the Class Period at artificially inflated prices and
suffered substantial losses after defendants’ scheme was
revealed. Rhode Island has, and will continue to, actively oversee
and participate in the prosecution of this action.
Alphabet Inc. is an American multinational technology conglomerate
holding company headquartered in Mountain View, California.
A copy of the Lead Plaintiff's motion to certify class dated June
21, 2022 is available from PacerMonitor.com at
https://bit.ly/39MfghW at no extra charge.[CC]
The Plaintiff is represented by:
Jason A. Forge, Esq.
Michael Albert, Esq.
J. Marco Janoski Gray, Esq.
Ting H. Liu, Esq.
Natalie F. Lakosil, 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: jforge@rgrdlaw.com
malbert@rgrdlaw.com
mjanoski@rgrdlaw.com
tliu@rgrdlaw.com
nlakosil@rgrdlaw.com
ALTA CALIFORNIA: Broughton Files Suit in Cal. Super. Ct.
--------------------------------------------------------
A class action lawsuit has been filed against Alta California
Regional Center Inc., et al. The case is styled as Annika
Broughton, on behalf of all persons similarly situated v. Alta
California Regional Center Inc., Does 1-50, Case No.
34-2022-00320843-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., May
31, 2022).
The case type is stated as "Other Employment – Civil Unlimited."
Alta California Regional Center -- https://www.altaregional.org/ --
is a private, nonprofit agency designed to support individuals with
developmental disabilities.[BN]
The Plaintiff is represented by:
Nicholas J. De Blouw, Esq.
BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW
2255 Calle Clara
La Jolla, CA 92037-3107
Phone: 858-952-0354
Fax: 858-551-1232
Email: DeBlouw@bamlawca.com
AMARIN CORP: Third Cir. Affirms Dismissal of Securities Class Suit
------------------------------------------------------------------
In the case, IN RE: AMARIN CORPORATION PLC SECURITIES LITIGATION.
Dan Kotecki and Catherine Little-Hunt, as Trustee of the Gaetano
Cecchini Living Trust, Appellants, Case No. 21-2071 (3d Cir.), the
U.S. Court of Appeals for the Third Circuit affirms the District
Court's dismissal of the action.
I. Background
The putative securities fraud class action alleges that
pharmaceutical company Amarin and its executives misled investors
when it disclosed the topline results of a Phase III trial for its
lead drug product.
Amarin has conducted three Phase 3 trials for Vascepa. The Food and
Drug Administration ("FDA") approved Vascepa for limited use
following the first trial. In the second trial, called ANCHOR,
Amarin was denied FDA approval of Vascepa for use in an expanded
patient population.
The Plaintiffs' allegations focus on the final Phase 3 trial,
called REDUCE-IT, and more specifically, the results from the
trial's placebo arm. This trial evaluated whether Vascepa, when
combined with statin therapy, could reduce major adverse cardiac
events ("MACE"). FDA approval of Vascepa for this indication would
greatly expand the eligible patient population. Amarin used the
same mineral oil placebo in both the ANCHOR and REDUCE-IT trials.
The FDA, notably, had previously raised "concerns that the placebo
data in the ANCHOR trial indicated that the mineral oil placebo may
not have been inert (i.e., chemically inactive), and thus may have
biased the treatment effect of Vascepa."
On Sept. 24, 2018, Amarin announced topline results for the
REDUCE-IT trial, and the company's share price increased. The
topline results announced that the REDUCE-IT trial demonstrated "an
approximately 25% relative risk reduction" in MACE as compared to
the placebo group. The company further noted that the full results
would not be released until a conference later that year. When the
full results were made available, some health experts and medical
professionals raised concerns that the mineral oil placebo used in
the REDUCE-IT trial was not inert. If the placebo was chemically
active, it could have affected the trial's results and thereby
exaggerated Vascepa's efficacy. Amarin's share price dropped
approximately 27% after the full REDUCE-IT trial data was
released.
Lead Plaintiffs Gaetano Cecchini, as Trustee of the Gaetano
Cecchini Living Trust, and Dan Kotecki brought the action,
asserting violations of sections 10(b) and 20(a) of the Exchange
Act on behalf of a putative class action of Amarin stockholders.
The complaint asserts that the Sept. 24, 2018 press release
announcing the topline results of the REDUCE-IT trial and
statements made in a conference call that same day were materially
misleading. The complaint's primary theory of liability is that at
the time Amarin disclosed the trial's topline results, it failed to
tell investors that the mineral oil placebo was not inert. This
caused the topline results to overstate the relative risk reduction
in MACE for patients receiving Vascepa as compared to the placebo
group.
The Defendants moved to dismiss under Federal Rule of Civil
Procedure 12(b)(6). The District Court granted this motion,
concluding that the complaint failed to allege adequately both a
materially false or misleading statement and scienter. The
Plaintiffs have timely appealed.
II. Discussion
The Plaintiffs focus on three categories of material
misrepresentations or omissions: (1) statements of opinion that
Amarin made when disclosing the REDUCE-IT trial's topline results;
(2) a duty to disclose further information regarding the mineral
oil placebo due to the topline results putting this information "in
play"; and (3) statements in Amarin's quarterly and annual SEC
filings that disclosed certain risks as theoretical, which in fact
had already materialized.
First, the Plaintiffs argue that the topline results for the
REDUCE-IT trial were false or misleading because Amarin failed to
disclose that the mineral oil placebo may have impeded statin
absorption in the placebo group. By failing to disclose this
information, they contend that the topline results exaggerated the
benefits and effectiveness of Vascepa relative to the placebo
group.
The Third Circuit concludes that the complaint fails to allege
adequately a false or misleading statement of opinion because the
topline results announced by Amarin did not lack a reasonable
basis. While the disclosures at issue discuss the REDUCE-IT trial
data with reference to the placebo group, they make no
characterizations regarding the impact of the mineral oil placebo.
Relying on the opinions of certain medical professionals that are
discussed in news articles, the complaint only alleges a difference
of opinion regarding the impact of the mineral oil placebo. These
differing interpretations as to whether the placebo was
biologically active, and thereby affected the trial's results, are
not sufficient to establish that the defendants' interpretations of
the data in the topline results "lacked a reasonable basis."
The Third Circuit further agrees with the District Court that the
Plaintiffs' theory of omission liability is unpersuasive given
Amarin's contemporaneous disclosures regarding the mineral oil
placebo. It concludes that the complaint fails to allege adequately
a false or misleading statement of opinion in Amarin's disclosure
of the topline results.
The next theory advanced by the Plaintiffs is that Amarin put
information regarding the mineral oil placebo "in play," and
therefore it had a duty to disclose further information when
announcing the REDUCE-IT trial topline results.
The Third Circuit opines that there is no affirmative duty to
disclose all material information, but such a duty may arise when a
company chooses "to speak about a material subject to investors."
While the disclosures at issue describe the REDUCE-IT trial results
with reference to the placebo group, they did not make any
affirmative characterizations regarding the effectiveness of the
mineral oil placebo. The Third Circuit therefore concludes that
Amarin's disclosure of the topline results did not put into play
either the full trial data or additional information regarding the
mineral oil placebo.
The Plaintiffs lastly contend that Amarin's disclosures in its
quarterly and annual SEC filings were misleading because the
company "continued to reiterate theoretical risks, without
disclosing that they had already shown signs of manifesting." They
point to Amarin's Q3 2018 Form 10-Q as an example of the company
warning about a hypothetical, future risk related to the mineral
oil placebo that had already been realized due to the results from
the REDUCE-IT trial.
This argument fails for two reasons, the Third Circuit holds. The
complaint, first, does not identify the statements in Amarin's SEC
filings alleged to be materially false or misleading and therefore
is subject to dismissal under the PSLRA. The risk disclosed in
these filings, in addition, had not actually materialized at the
time that the statements were made. The complaint only alleges a
difference in opinion as to whether the mineral oil placebo might
be biologically inert. And this is exactly what Amarin disclosed in
its quarterly and annual SEC filings.
The Third Circuit agrees with the District Court that the
Plaintiffs have failed to allege adequately a false or misleading
statement. Because it will affirm on these grounds, it declines to
reach the issue of scienter. The Third Circuit further finds it
unnecessary to consider whether the District Court abused its
discretion by taking judicial notice of certain documents because
all of the documents at issue were only relevant to the court's
scienter analysis.
Having concluded that the Plaintiffs failed to state a claim under
Section 10(b), the Third Circuit will also affirm the District
Court's dismissal of their claims under Section 20(a).
III. Disposition
Based on the foregoing, the Third Circuit affirms the District
Court's order.
A full-text copy of the Court's June 14, 2022 Opinion is available
at https://tinyurl.com/57xzbr2m from Leagle.com.
AMAZON.COM INC: Class Action Mulled Over Cancellation Process
-------------------------------------------------------------
Top Class Actions reports that do you subscribe to Amazon Prime,
adult entertainment networks like YouPorn or Bang, or streaming
services like Hulu or ESPN? Do you subscribe to another service
that was difficult to cancel?
Signing up for subscription services of all kinds tends to be
incredibly easy. Indeed, most of us are likely juggling at least a
few subscriptions to various services at once. Subscription
services offer convenience and consistency to customers -- but when
we want to cancel a subscription on Amazon Prime, Hulu, Netflix, or
another service, the cancellation process can be anything but
convenient, and may be downright deceptive.
Subscriptions to services like Amazon Prime, adult entertainment
sites, and TV subscriptions like Hulu or ESPN may employ deceptive
cancellation policies to try and retain as many customers as
possible -- even customers who no longer want their services.
A growing number of consumers are voicing their frustration with
how difficult it is to cancel a subscription on Amazon Prime as
well as other services.
Do You Qualify?
If you are a subscriber to Amazon Prime, adult entertainment sites,
like Pornhub Premium, Bang Bros, or TV services like Hulu or ESPN,
you may be able to join this class action lawsuit investigation and
pursue compensation. If you feel another company is deceptive, you
may also qualify.
Fill out the form on this page for more information.
What are deceptive cancellation policies?
Deceptive cancellation policies can look different from service to
service, but there is one constant: they all try to make it as
difficult as possible for customers to cancel their subscriptions.
Some subscriptions or memberships may even make it so that you have
to call a customer service line to cancel, additionally difficult
if the line is restricted to certain hours.
How to cancel a subscription on Amazon Prime
The process required to cancel a subscription on Amazon Prime is
complicated for some consumers.
The consumer must go through a series of prompts on several
different pages, including prompts with how many days are left in
their billing cycle and how much they would save if they switched
to an annual payment plan. When they get to the cancellation page,
they are faced not with one clear cancellation button, but several
with different messages: "Keep My Membership," "Continue to
Cancel," and "Remind Me Later."
Further down the page, there are options for when to cancel -- now,
at the end of the billing cycle, or simply "pausing" the
subscription.
Amazon maintains that its cancellation policy is "simple and
transparent," per a company spokesperson.
According to a report from the Norwegian Consumer Council (NCC),
research from the U.S., U.K., and E.U. showed that Amazon's
subscription model is a "roach motel" -- "getting in is almost
effortless, but escape is an ordeal."
A number of organizations, including Public Citizen, Center for
Digital Democracy, and Center for Economic Justice, sent a letter
to the Federal Trade Commission urging the organization toward
action in an effort to better protect consumers from deceptive
subscription cancellation policies.
FTC issues enforcement policy statement
In October 2021, the Federal Trade Commission issued an enforcement
policy statement with a warning to companies offering subscription
services from using deceptive measures and "illegal dark patterns"
to trap customers into continuing their services.
The statement warns companies that they will face legal action if
their sign-up process is unclear about their cancellation policy or
if their cancellation process is difficult.
Issues canceling YouPorn, Brazzers, adult entertainment sites
Adult entertainment streaming services that may be difficult to
cancel include:
Pornhub premium
Naughty America
Bang
Reality Kings
Bang Bros
Hustler
Mofos
Kinky Family
PureTaboo
Cocky Boys
Helix Studios
YouPorn
Adult Empire
Porn World
Others
Consumers who have had trouble canceling these or other adult
entertainment streaming subscriptions due to misleading or
deceptive cancellation processes may be able to take legal action.
Join a deceptive cancellation for subscriptions class action
lawsuit investigation
Consumers are becoming increasingly frustrated with companies'
subscription cancellation policies, claiming that they are
deceptive, and aimed at retaining customers who no longer wish to
receive these services.
If you are a subscriber to Amazon Prime, adult entertainment sites,
or TV services like Hulu or ESPN, you may be able to join a
deceptive cancellation for subscriptions class action lawsuit
investigation and pursue compensation. [GN]
AMERICAN ELECTRONIC: Fails to Pay Engineers' OT Wages, Jackson Says
-------------------------------------------------------------------
JESSE JACKSON, Individually and For Others Similarly Situated v.
AMERICAN ELECTRONIC WARFARE ASSOCIATES, INC. (AMEWAS), Case No.
1:22-cv-01456-SAG (D. Md., June 14, 2022) alleges that AMEWAS
failed to pay Jackson and other workers like him, overtime as
required by the Fair Labor Standards Act; by Maryland Wage and Hour
Law; or all wages owed for work performed before the termination of
his employment, as required by Maryland Wage Payment and Collection
Law.
According to the complaint, AMEWAS paid Jackson and other workers
like him the same hourly rate for all hours worked, including those
in excess of 40 in a workweek (or "straight time for overtime").
Jackson brings this action on behalf of himself and other similarly
situated workers who were paid by AMEWAS’s "straight time for
overtime" system.
The class of similarly situated employees sought to be certified as
a collective action under the FLSA is defined as:
"All current and former employees of AMEWAS during the past 3
years who were paid straight time for overtime (the "Putative
Class Members")."
Pursuant to Rule 23, the class of employees Jackson seeks to
represent under MWHL is defined as:
"All current and former employees of AMEWAS during the past 3
years who were paid straight time for overtime in violation of
MWHL (the "MWHL Class")."
Pursuant to Rule 23, the class of employees Jackson seeks to
represent under MWPCL is defined as:
"All former employees of AMEWAS during the past 3 years who were
paid straight time for overtime in violation of MWPCL (the
"MWPCL Class").
Jackson worked for AMEWAS as an Engineer III.
AMEWAS is an aerospace and electronics defense company. AMEWAS
provides staffing solutions to projects ranging from engineering,
power industry, oil and gas, and infrastructure and buildings.[BN]
The Plaintiff is represented by:
Nicholas A. Migliaccio, Esq.
Jason S. Rathod, Esq
MIGLIACCIO & RATHOD LLP
412 H St. NE, Suite 302,
Washington D.C. 20002
Telephone: (202) 470-3520
Facsimile: (202) 800-2730
E-mail: nmigliaccio@classlawdc.com
jrathod@classlawdc.com
- and -
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Alyssa J. White, Esq.
JOSEPHSON DUNLAP, LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
awhite@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH , PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
ANADARKO PETROLEUM: Gros Seeks OT Pay for Client Reps Under FLSA
----------------------------------------------------------------
BILLY GROS, Individually and For Others Similarly Situated v.
ANADARKO PETROLEUM CORPORATION, Case No. 4:22-cv-01943 (S.D. Tex.,
June 14, 2022) seeks to recover unpaid overtime wages and other
damages from Anadarko Anadarko under the Fair Labor Standards Act.
Gros worked for Anadarko as a Client Representative (also known as
a Commissioning Lead) from May 2018 until March 2020. Gros and the
other similarly situated workers who worked for Anadarko in the
last three years regularly worked more than 40 hours a week.
In 2019, Anadarko changed its pay practice and these Client
Representatives did not receive overtime for the hours they worked
in excess of 40 hours in a single workweek.
Instead of receiving overtime as required by the FLSA while working
for Anadarko, Gros and other similarly situated Client
Representatives were allegedly paid a flat amount for each day
worked (a day- rate) without overtime compensation, says the suit.
Neither Gros, nor any other similarly situated Client
Representative who worked for Anadarko and received a day-rate,
received a guaranteed salary.
According to the complaint, while Gros was staffed to Anadarko by
the Bergalia Companies, his relationship with Anadarko was an
employer/employee relationship. Although these Client
Representatives regularly worked more than 40 hours each week
for Anadarko, they were paid a flat amount for each day worked and
with no overtime compensation for the hours they worked in excess
of 40 each week in violation of the FLSA.
Anadarko was a company engaged in hydrocarbon exploration. It was
organized in Delaware and headquartered in two skyscrapers in The
Woodlands, Texas: the Allison Tower and the Hackett Tower, both
named after former CEOs of the company.[BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Richard M. Schreiber, Esq
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77005
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
rschreiber@mybackwages.com
- and -
Richard J. (Rex) Burch
BRUCKNER BURCH PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
ANADARKO PETROLEUM: Heaton Seeks OT Pay for Field Superintendents
-----------------------------------------------------------------
MARTY HEATON, Individually and For Others Similarly Situated v.
ANADARKO PETROLEUM CORPORATION, Case No. 4:22-cv-01948 (S.D. Tex.,
June 14, 2022) seeks to recover unpaid overtime wages and other
damages from Anadarko under the Fair Labor Standards Act.
Heaton worked for Anadarko as a Field Superintendent from 2001
until October 2020. Heaton and the other similarly situated workers
who worked for Anadarko in the last three years regularly worked
more than 40 hours a week.
According to the complaint, field Superintendents did not receive
overtime for the hours they worked in excess of 40 hours in a
single workweek. Instead of receiving overtime as required by the
FLSA while working for Anadarko, Heaton and other similarly
situated Field Superintendents were classified as independent
contractors and paid a flat amount for each day worked (a day-rate)
without overtime compensation. Neither Heaton, nor any other
similarly situated Field Superintendent who worked for Anadarko and
received a day-rate, received a guaranteed salary, the suit added.
Anadarko was a company engaged in hydrocarbon exploration. It was
organized in Delaware and headquartered in two skyscrapers in The
Woodlands, Texas: the Allison Tower and the Hackett Tower, both
named after former CEOs of the company.[BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Richard M. Schreiber, Esq
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77005
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
rschreiber@mybackwages.com
- and -
Richard J. (Rex) Burch
BRUCKNER BURCH PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
APIECE APART: Web Site Not Accessible to Blind, Hanyzkiewicz Says
-----------------------------------------------------------------
MARTA HANYZKIEWICZ, individually and on behalf of all others
similarly situated, Plaintiffs v. APIECE APART, LLC, Defendant,
Case No. 1:22-cv-03479 (E.D.N.Y., June 10, 2022) alleges violation
of the Americans with Disabilities Act.
The Plaintiff alleges in the complaint that the Defendant's Web
site, www.apieceapart.com, is not fully or equally accessible to
blind and visually-impaired consumers, including the Plaintiff, in
violation of the ADA.
The Plaintiff seeks a permanent injunction to cause a change in the
Defendant's corporate policies, practices, and procedures so that
the Defendant's Web site will become and remain accessible to blind
and visually-impaired consumers.
APIECE APART, LLC sells women's clothing online.
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Suite 620
Hackensack, NJ 07601
Telephone: (201) 282-6500
Facsimile: (201) 282-6501
Email: mrozenberg@steinsakslegal.com
APPLE INC: Faces GBP768-MM iPhone Throttling Class Action in UK
---------------------------------------------------------------
Natasha Lomas, writing for TechCrunch+, reports that a class action
style lawsuit is being launched against Apple in the UK seeking
damages worth a total of £768 million (circa $935M).
The representative action is being filed by consumer rights
campaigner, Justin Gutmann, citing competition law -- with the suit
accusing the mobile maker of abusing its market dominance to engage
in exploitative and unfair commercial practices when, per the
claim, it misled iPhone users by applying a power management
software update, first released in January 2017 in iOS 10.2.1, that
throttled the performance of affected devices.
The suit is being filed in the Competition Appeal Tribunal in
London on behalf of up to 25 million UK iPhone users who used any
of 10 different models of iPhone, from the iPhone 6 through to the
iPhone X (and including the iPhone SE).
The litigation, which is being bankrolled by a litigation funder
called Balance Legal Capital, is opt out, not opt in -- meaning
affected UK consumers do not need to actively sign up to be part of
the representative suit (although they would need to provide their
details at a later date if the suit prevails and wish to receive
their portion of any damages -- albeit, damages could be as low as
~£30 per affected device).
A website has been launched with details about the suit at
https://theiphoneclaim.com/.
Apple has already faced litigation over iPhone performance
‘throttling' claims in a number of other European markets.
Back in 2020, it also settled a class action suit on home turf
which had similarly accused it of intentionally slowing down the
performance of older iPhones to encourage customers to buy newer
models or fresh batteries -- shelling out up to $500M to make the
litigation go away, albeit doing so without accepting wrongdoing.
In the same year, France's competition watchdog fined Apple around
$27 million for throttling older devices without informing users.
In that instance Apple paid the fine and agreed to display a
statement on its website about the sanction for a month.
While, in 2018, Italy's consumer watchdog stung Apple (and Samsung)
with smaller financial penalties for forcing updates it found could
slow or break devices.
The latest UK action over the throttling issue follows what Gutmann
describes as expert analysis carried out by technical experts
instructed by his lawyers, Charles Lyndon Ltd, which he said
demonstrates that Apple's tool was introduced with the aim of
reducing the demands on the battery, which had the effect of
slowing the processor's speed at peak performance by up to 58% in
the case of the iPhone 6s and 7.
The complainant further claims Apple mislead consumers because
information about the tool was not included in the iOS 10.2.1
update's download description -- meaning users were not made aware
ahead of time of the detrimental effect it would have on their
device.
Instead, users who failed to update to the latest iOS version were
told they risked exposure to bugs and security flaws by missing out
on key security updates. And the suit also claims some users will
have been prompted up to 70 times to install the update in
notifications, while those who did accept the update were unable to
uninstall it, meaning they were stuck with any negative impact on
their device performance.
Apple did later add mention of the tool to the release notes on its
website but, again, the complaint will argue it misled customers by
failing to make it clear the tool would slow device performance --
only stating the update "improves power management during peak
workloads to avoid unexpected shutdowns on iPhone."
It also went on to apologize over its handling of the episode --
and ran a battery replacement scheme through 2018 for all affected
iPhone models -- but Gutmann also accuses the company of failing to
sufficiently publicize that program.
Commenting in a statement, he said: "Instead of doing the
honourable and legal thing by their customers and offering a free
replacement, repair service or compensation, Apple instead misled
people by concealing a tool in software updates that slowed their
devices by up to 58%."
"I'm launching this case so that millions of iPhone users across
the UK will receive redress for the harm suffered by Apple's
actions. If this case is successful, I hope dominant companies will
re-evaluate their business models and refrain from this kind of
conduct," he added.
Asked why the suit is being filed now, a spokesperson for the
claimant said that along with his solicitors he's been working on
the claim for "some time". "It takes time to build a claim like
this, including investigating the technical aspects of it, and we
are now in the position that we are ready to file," they added.
"You are correct that a number of similar class actions have been
filed. Although none of the European actions have yet been
successful, Apple has been fined by the French and Italian
regulators in relation to this conduct and has settled a number of
class actions in the U.S. Mr Gutmann understands that consumer law
class actions have been certified in Canada and Spain; and that
class actions have been filed (but not yet certified) in Belgium,
Italy and Portugal."
Earlier this year a separate class action style litigation was
launched in the U.K. against Facebook's parent, Meta -- which is
also seeking to use competition law as a route to extract damages
from a tech giant.
Privacy law-focused representative actions suffered a set back in
the U.K. last year when the Supreme Court sided with Google --
ending a long running litigation over a workaround it had applied
to Apple's Safari between 2011 and 2012 which overrode iPhone
users' privacy settings.
In the Safari workaround case the class action style litigation
failed as the court deemed it necessary to demonstrate damage/loss
on an individual basis, rather than agreeing uniform compensation
could be applied -- so it will be interesting to see whether
litigation lawyers have more success using competition claims to
extract representative damages over harmful Big Tech practices,
either in court or through out of court settlements. [GN]
APPLE INC: Must Face Class Action Over "iTunes Gift Card Scam"
--------------------------------------------------------------
Patently Apple posted a legal report in July 2020 titled "An
11-Count Class Action has been filed against Apple for Recklessly
Enabling an ongoing "iTunes Gift Card Scam." The report noted that
the group claimed that Apple knowingly or recklessly enabled an
iTunes gift card scam. All those listed as bringing the Class
Action forward were victims of the iTunes gift card scam. The
Plaintiffs state that Apple falsely tells victims that 100% of
their money lost in the scam is irretrievable and this isn't true.
Further, the lawsuit claims that Apple has retained hundreds of
millions of dollars in commissions in this scam that should be paid
back to those who were victims in this highly sophisticated iTunes
Gift Card Scam." See our 2020 report for the full court document.
According to a report filed on June 14, Apple will have to face
claims that the company profited off of criminal enterprise schemes
featuring stolen gift cards after a federal judge declined to
dismiss claims the company benefitted monetarily from sophisticated
schemes that employ fake apps to swindle consumers.
U.S. District Judge Edward Davila dismissed some of the claims from
a class of plaintiffs that said Apple aided in the fraudulent
schemes, but he did say plaintiffs plausibly alleged the company
did receive some of the proceeds from the fraud and failed to
appropriately reimburse the victims.
"Apple stands to benefit from proliferation of the scam, that Apple
is fully capable of determining which accounts redeemed the stolen
gift card funds and preventing payout of those funds and that Apple
nevertheless informed Martin, Marinbach, Qiu, and Hagene that there
was nothing it could do for them despite those plaintiffs' prompt
notification of the theft," Davila wrote in the 28-page decision.
The ruling is a big win for plaintiffs who can now proceed to the
discovery phase, despite having the bulk of their fraud claims
against the large Silicon Valley company thrown out. It is not a
finding of guilt on behalf of Apple.
Gift card scams are an increasing problem, an issue that is not in
dispute in the present case. The Federal Trade Commission estimates
criminals stole $30 million through gift card scams in 2020 alone.
The previous year, it was an estimated $24 million.
In the case of Apple, the scam typically centers on iTunes gift
cards, or gift cards for the Apple App store. These account for
about a quarter of all reported gift card thefts in the United
States.
Davila said Apple's arguments that it could solely rely on its
stated refund policy, which the customers tacitly agreed to on
purchase, is insufficient.
"The court finds that Martin, Marinbach, Qiu, and Hagene have
alleged facts from which it may be inferred that by refusing to
refund the scammed funds, Apple prevented them from taking
possession of their property and, indeed, benefitted from
perpetuation of the scam," Davila wrote. For more, read the full
report by Courthouse News Service. [GN]
APPLE INC: Wins Bid to Dismiss Crittenden's 1st Amended Complaint
-----------------------------------------------------------------
In the case, ANDRUW CRITTENDEN, et al., Plaintiffs v. APPLE, INC.,
Defendant, Case No. 5:21-cv-04322-EJD (N.D. Cal.), Judge Edward J.
Davila of the U.S. District Court for the Northern District of
California, San Jose Division, grants the Defendant's motion to
dismiss the Plaintiffs' First Amended Class Action Complaint.
I. Introduction
Plaintiffs Andruw Crittenden, Dana Cooper, Deborah Valcourt,
Jennifer Herbert, Gloria King, Cortney Schneider, Antonio Holland,
Jessie Santiago, Brianna Pasquale, Patricia Simon, Monica Charles,
Steve Wayne Watson, Michael Moore, Brandi Leon, and Maria Oneal
bring claims for injunctive and monetary relief for harm arising
out of various iPhone software updates.
Defendant Apple moves to dismiss the Plaintiffs' amended complaint.
On Nov. 8, 2021, the Plaintiffs filed an opposition, to which
Defendant filed a reply.
II. Background
The Plaintiffs are iPhone users from California, Florida, New
Jersey, Wisconsin, Pennsylvania, Georgia, Ohio, and Illinois. They
collectively own the following devices: iPhone 10-S Max, iPhone 11,
iPhone 12, iPhone 11 Pro Max, iPhone 12 Mini, iPhone 12 Pro Max,
and iPhone XR.
The Defendant is a California-based technology company that sells
and markets iPhones, amongst other devices. It releases free iOS
software updates to iPhone users to fix bugs, introduce new
features, and address security vulnerabilities. The Defendant does
not require users to install the new updates. Rather, users must
voluntarily download an iOS update by clicking an "Install Now"
button or agreeing in advance to "automatically update" their
device with new updates.
The Defendant released three iOS updates -- iOS 14.5, 14.5.1, and
14.6 -- that fixed bugs and added security updates and new features
to the iPhone's software, including "recalibration of iPhone
battery utility" in iOS 14.5. The Plaintiffs allege that shortly
after installing the iOS 14.5.1 update they (and many other
consumers) experienced reduced performance and inhibited battery
life on their iPhones. Numerous iPhone users complained that,
following the update, their iPhone was "noticeably slower," there
was "visible lag," and benchmark testing demonstrated that the
phone's performance had slowed.
Media reported this reduced performance and noted that the iOS
14.5.1 update was "leading to lower than usual benchmark scores and
slower performance." Benchmark testing showed that the iOS 14.5.1
update had reduced the performance of the latest model iPhones (at
that time the iPhone 11 and 12 models) "by as much as 60%."
About three weeks later, the Defendant released another software
update, the iOS 14.6 update. In the release notes for the iOS 14.6
update, it stated that the update was issued in part to "fix"
issues in which iPhones "may experience reduced performance during
startup." The Plaintiffs allege that this fix did not work and that
many consumers still reported reduced performance on their iPhones
following the iOS 14.6 update. Consumers also reported that,
following the iOS 14.6 update, their devices' battery life had
worsened.
The Plaintiffs allege that the Defendant "designs every aspect of
the iOS system, including the updates to that system." They
maintain that the Defendant tests the impact these updates have on
iPhones before their release to the public, including the potential
impact these updates will have on the iPhones' software, such as
processing speed, performance with every-day tasks, and battery
life. They therefore argue that the Defendant "knew that these iOS
updates were likely to reduce performance and inhibit battery life
for the various iPhone models at issue."
The Plaintiffs bring four claims related to their allegations that
the iOS updates slowed their iPhones' performance and diminished
their battery life so that they would be more likely to purchase a
new device. They allege a trespass to chattels claim and violations
of the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. Sectuin
1030, et seq., California Computer Data Access and Fraud Act
("CDAFA"), Cal. Penal Code Section 502, et seq., and California's
Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code Section
17200 et seq. Notably, these are the same legal causes of action
this Court allowed to proceed to discovery in the related
multidistrict litigation action ("Apple MDL") -- In re Apple Inc.
Device Performance Litig., 386 F.Supp.3d 1155, 1184-85 (N.D. Cal.
2019) ("Device Performance II"). Indeed, the Plaintiffs recognize
that the Defendant "recently settled a large class action with
similar allegations but about a different subset of devices and
about an older iPhone update."
III. Discussion
The Defendant first argues that the Plaintiffs' claims should be
dismissed because almost the entire FAC is pled "upon information
and belief" about other people's experiences with the iOS
downloads. It contends that this does not comply with Federal Rule
of Civil Procedure 8, let alone Rule 9's heightened pleading
standard.
In response, the Plaintiffs argue that allegations based upon
"information and belief" are permissible. Because Judge Davila
dismisses on this ground, he does not reach the Defendant's
alternative grounds for dismissal.
Under Federal Rule of Civil Procedure 8, the Plaintiffs must
plausibly plead facts showing that the Defendant intentionally
developed iOS updates to slow their iPhones. This standard requires
more than "a sheer possibility that a defendant has acted
unlawfully." Further, the Plaintiffs must plead "facts tending to
exclude the possibility that the alternative explanations are
true." Because the Plaintiffs' claims sound in fraud, they must
also plead those facts "with particularity" to satisfy Federal Rule
of Civil Procedure 9.
Judge Davila agrees that the Plaintiffs have not pled facts that
support their theory that Defendant intentionally developed iOS
updates 14.5, 14.5.1, and 14.6 to slow iPhone performance and
battery life. Problematically, he says, the Plaintiffs have not
alleged when they downloaded the updates or how the updates
impacted their devices, let alone how they experienced "reduced
processing speeds and/or reduced battery performance." Rather, they
only allege that their iPhone devices were "damaged as a result of
the conduct by Apple in the form of reduced processing speeds
and/or reduced battery performance."
Indeed, the Plaintiffs do not detail their own experiences, but
rather use an enforcement action in Spain to "strengthen the
inference that the performance problems are caused by the software
updates." Their other allegations focus on anonymous online
postings about other people's perceived performance issues after
downloading the relevant iOS updates. These allegations do not
support a plausible claim that Plaintiffs experienced issues with
the updates. This is especially true given the full context of the
Internet sources cited in the FAC.
The Plaintiffs thus cannot rely on negative online reviews alone to
establish deficiency, as there are other reviews that establish
non-deficiency. Accordingly, because the Plaintiffs' allegations do
not "exclude the possibility that alternative explanations are
true," they lack plausibility.
The Plaintiffs argues that the Defendant demands too much at the
pleading stage. Judge Davila disagrees. While the Plaintiffs may
use pleadings based upon "information and belief," he says, those
allegations must still be sufficiently particular to meet the
pleading burden. The Plaintiffs' pleadings fail because they do not
allege facts upon which their beliefs are founded.
Moreover, as the Ninth Circuit has explained, pleading upon
information and belief is appropriate where "the facts are
peculiarly within the possession and control of the defendant or
where the belief is based on factual information that makes the
inference of culpability plausible," citing Soo Park v. Thompson,
851 F.3d 910, 928 (9th Cir. 2017). Neither circumstance is present.
The facts at issue are in the Plaintiffs' control -- they are the
owners of the allegedly defective iPhones. Likewise, "parroting
internet musings about things the Defendant may or may not being
doing, and which the Plaintiffs may or may not have experienced
themselves," is insufficient to establish a plausible inference of
culpability.
Accordingly, the Plaintiffs' FAC must be dismissed pursuant to
Federal Rules of Civil Procedure 8 and 9.
IV. Conclusion
For the foregoing reasons, Judge Davila grants the Defendant's
motion to dismiss. Although he has determined that the Plaintiffs
have failed to plead sufficient facts to establish plausibility, he
concludes that it is possible the Plaintiffs can cure their
allegations by alleging, among other things, more particular facts
as to how the updates impacted them personally. Accordingly, he
grants the Defendant's motion to dismiss with leave to amend.
Should the Plaintiffs choose to file an amended complaint, they
must do so by July 6, 2022. Failure to do so, or failure to cure
the deficiencies addressed in the Order, will result in dismissal
of the Plaintiffs' claims. The Plaintiffs may not add new claims or
parties without leave of the Court or stipulation by the parties
pursuant to Federal Rule of Civil Procedure 15.
A full-text copy of the Court's June 14, 2022 Order is available at
https://tinyurl.com/56v6hctm from Leagle.com.
APYX MEDICAL: Klein Law Firm Reminds of August 5 Deadline
---------------------------------------------------------
The Klein Law Firm on June 14 disclosed that a class action
complaint has been filed on behalf of shareholders of Apyx Medical
Corporation (NASDAQ: APYX) alleging that the Company violated
federal securities laws.
Class Period: May 12, 2021 to March 11, 2022
Lead Plaintiff Deadline: August 5, 2022
No obligation or cost to you.
Learn more about your recoverable losses in APYX:
https://www.kleinstocklaw.com/pslra-1/apyx-medical-corporation-loss-submission-form-2?id=28449&from=4
Apyx Medical Corporation NEWS - APYX NEWS
CLASS ACTION CASE DETAILS: The filed complaint alleges that Apyx
Medical Corporation made materially false and/or misleading
statements and/or failed to disclose that: (1) a significant number
of Apyx's Advanced Energy products were used for off-label
indications; (2) such off-label uses led to an increase in the
number of medical device reports filed by Apyx reporting serious
adverse events; (3) as a result, the Company was reasonably likely
to incur regulatory scrutiny; (4) as a result of the foregoing, the
Company's financial results would be adversely impacted; and (5) as
a result of the foregoing, defendants' positive statements about
the Company's business, operations, and prospects were materially
misleading and/or lacked a reasonable basis.
WHAT THIS MEANS TO YOU AS A SHAREHOLDER: If you have suffered a
loss in Apyx you have until August 5, 2022 to petition the court
for lead plaintiff status. Your ability to share in any recovery
doesn't require that you serve as a lead plaintiff.
NO COST TO YOU: If you purchased Apyx securities during the
relevant period, you may be entitled to compensation without
payment of any out-of-pocket fees.
HOW TO PROTECT YOUR FINANCIAL INTERESTS: For additional information
about the APYX lawsuit, please contact J. Klein, Esq. by telephone
at 212-616-4899 or click this link:
https://www.kleinstocklaw.com/pslra-1/apyx-medical-corporation-loss-submission-form-2?id=28449&from=4.
ABOUT KLEIN LAW FIRM
J. Klein, Esq. represents investors and participates in securities
litigations involving financial fraud throughout the nation. The
Klein Law Firm is a boutique litigation firm with experience in a
wide range of areas including securities law, corporate finance and
commercial litigation. Since 2011, our experienced attorneys have
achieved superior results for our clients with a personalized
focus. Attorney advertising. Prior results do not guarantee similar
outcomes.
CONTACT:
J. Klein, Esq.
Empire State Building
350 Fifth Avenue
59th Floor
New York, NY 10118
jk@kleinstocklaw.com
Telephone: (212) 616-4899
www.kleinstocklaw.com [GN]
APYX MEDICAL: Wolf Haldenstein Reminds of August 5 Deadline
-----------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP on June 15 disclosed that
a federal securities class action lawsuit has been filed in the
United States District Court for the Middle District of Florida on
behalf of persons and entities that purchased or otherwise acquired
Apyx Medical Corporation ("Apyx" or the "Company") (NASDAQ: APYX)
securities between May 12, 2021 and March 11, 2022, inclusive (the
"Class Period").
All investors who purchased the shares of Apyx Medical Corporation
and incurred losses are advised to contact the firm immediately at
classmember@whafh.com or (800) 575-0735 or (212) 545-4774. You may
obtain additional information concerning the action or join the
case on our website, www.whafh.com.
If you have incurred losses in Apyx Medical Corporation, you may,
no later than August 5, 2022, request that the Court appoint you
lead plaintiff of the proposed class. Please contact Wolf
Haldenstein to learn more about your rights as an investor in Apyx
Medical Corporation.
The filed complaint alleges that throughout the Class Period,
Defendants made materially false and/or misleading statements, as
well as failed to disclose material adverse facts about the
Company's business, operations, and prospects. Specifically,
Defendants failed to disclose to investors:
-- that a significant number of Apyx's Advanced Energy products
were used for off-label indications;
-- that such off-label uses led to an increase in the number of
medical device reports filed by Apyx reporting serious adverse
events;
-- that, as a result, the Company was reasonably likely to incur
regulatory scrutiny;
-- that, as a result of the foregoing, the Company's financial
results would be adversely impacted; and
-- that, as a result of the foregoing, Defendants' positive
statements about the Company's business, operations, and prospects
were materially misleading and/or lacked a reasonable basis.
On March 14, 2022, Apyx disclosed that the U.S. Food and Drug
Administration ("FDA") would be posting a Medical Device Safety
Communication ("MDSC") related to the Company's Advanced Energy
Products. The Company further disclosed that "[b]ased on our
initial interactions with the FDA, we believe the Agency's MDSC
will pertain to the use of our Advanced Energy products outside of
their FDA-cleared indication for general use in cutting,
coagulation, and ablation of soft tissue during open and
laparoscopic surgical procedures."
On this news, the Company's stock fell $4.02, or 40.6%, to close at
$5.88 per share on March 14, 2022, on unusually heavy trading
volume.
Wolf Haldenstein has extensive experience in the prosecution of
securities class actions and derivative litigation in state and
federal trial and appellate courts across the country. The firm has
attorneys in various practice areas; and offices in New York,
Chicago and San Diego. The reputation and expertise of this firm in
shareholder and other class litigation has been repeatedly
recognized by the courts, which have appointed it to major
positions in complex securities multi-district and consolidated
litigation.
If you wish to discuss this action or have any questions regarding
your rights and interests in this case, please immediately contact
Wolf Haldenstein by telephone at (800) 575-0735 or via e-mail at
classmember@whafh.com
Contact:
Wolf Haldenstein Adler Freeman & Herz LLP
Patrick Donovan, Esq.
Gregory Stone, Director of Case and Financial Analysis
Email: gstone@whafh.com, donovan@whafh.com or
classmember@whafh.com
Tel: (800) 575-0735 or (212) 545-4774
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules. [GN]
ARQIT QUANTUM: Kuznicki Law Reminds of July 5 Deadline
------------------------------------------------------
The securities litigation law firm of Kuznicki Law PLLC issues this
alert to shareholders of Arqit Quantum Inc. f/k/a Centricus
Acquisition Corp. (NasdaqCM: ARQQ), (NasdaqCM: ARQQW), (NasdaqCM:
CENH), (NasdaqCM: CENHU), (NasdaqCM: CENHW) if they purchased the
Company's securities between September 7, 2021 and April 18, 2022,
inclusive (the "Class Period") and/or held Centricus securities as
of August 31, 2021 and were eligible to vote at the special meeting
on the merger between Arqit and Centricus. Shareholders have until
July 5, 2022 to file lead plaintiff applications in the securities
class action lawsuit.
Shareholders are encouraged to contact us at
https://kclasslaw.com/cases/securities/nasdaqcm-arqq/https://kclasslaw.com/cases/securities/nyse-hmlp/,
by calling toll-free at 1-833-835-1495 or by email
(dk@kclasslaw.com).
Kuznicki Law PLLC is committed to ensuring that companies adhere to
responsible business practices and engage in good corporate
citizenship. The firm seeks recovery on behalf of investors who
incurred losses when false and/or misleading statements or the
omission of material information by a Company lead to artificial
inflation of the Company's stock. Attorney advertising. Prior
results do not guarantee similar outcomes.
CONTACT:
Kuznicki Law PLLC
Daniel Kuznicki, Esq.
445 Central Avenue, Suite 344
Cedarhurst, NY 11516
Email: dk@kclasslaw.com
Phone: (347) 696-1134
Cell: (347) 690-0692
Fax: (347) 348-0967
https://kclasslaw.com [GN]
BEARBOTTOM CLOTHING: Hernandez Files ADA Suit in S.D. New York
--------------------------------------------------------------
A class action lawsuit has been filed against Bearbottom Clothing,
LLC. The case is styled as Mairoby Hernandez, individually and on
behalf of all others similarly situated v. Bearbottom Clothing,
LLC, Case No. 1:22-cv-05034 (S.D.N.Y., June 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Bearbottom Clothing -- https://bearbottomclothing.com/ -- is a
rapidly growing, e-commerce men’s fashion brand on a mission to
become the go-to for the most versatile, comfortable, and wearable
everyday clothing.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
BELL BROTHER'S HEATING: Mogess Files Suit in Cal. Super. Ct.
------------------------------------------------------------
A class action lawsuit has been filed against Bell Brother's
Heating and Air Inc., et al. The case is styled as Marquis Daniel
Mogess, on behalf of all others similarly situated v. Bell
Brother's Heating and Air Inc., Does 1–10, Case No.
34-2022-00320775-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., May
31, 2022).
The case type is stated as "Other Employment - Civil Unlimited."
Bell Brother's Heating and Air Inc. -- https://bellbroshvac.com/ --
provides expert HVAC Installation, Repair and Maintenance in Yolo,
Sacramento, Placer, San Joaquin and El Dorado Counties.[BN]
The Plaintiff is represented by:
Justin F. Marquez, Esq.
WILSHIRE LAW FIRM, PLC
3055 Wilshire Blvd., Ste. 510
Los Angeles, CA 90010-1145
Phone: 213-381-9988
Fax: 213-381-9989
Email: justin@wilshirelawfirm.com
BINANCE.US: Dinsmore & Shohl Attorney Discusses Class Action
------------------------------------------------------------
David A. Lopez-Kurtz, Esq., of Dinsmore & Shohl, in an article for
Mondaq, reports that in a class action lawsuit filed on June 13 in
the United States District Court for the Northern District of
California, Binance.US (Binance), a major cryptocurrency exchange,
has been accused of misleading investors surrounding the Terra
blockchain ecosystem.
This is the first major court filing in the United States relating
to Terra, whose UST and LUNC tokens crashed in May, wiping out
around $40 billion in investor funds.
The lawsuit alleges that Binance marketed Terra's UST as a
stablecoin (a digital asset pegged to a certain value, such as the
U.S. dollar), and that this misleading characterization and
marketing ultimately left thousands of retail investors caught
completely off guard as they had been underprepared and
under-informed of the risks associated with their investments.
The lawsuit further alleges that Binance is an unregistered
broker-deal or exchange, in violation of securities law, given its
listing of UST, which the lawsuit characterizes as an unregistered
security.
In a statement provided to CoinDesk, Kyle Roche, a founding partner
of Roche Freedman (the law firm that filed the lawsuit) said,
"[Binance] recklessly listed and promoted UST as a 'safe'
stablecoin to those seeking to avoid the volatility of other
cryptocurrencies. They, as well as other exchanges that listed UST,
should be held accountable."
Binance disputes the allegations made in the lawsuit, saying to
CoinDesk, "[Binance] is registered by FinCEN and adheres to all
applicable regulations. These assertions are without merit and we
will defend ourselves vigorously."
If the lawsuit successfully holds a centralized exchange culpable
for a token's advertising -- rather than the organization that
launched it -- it will hold wide implications for the shape of the
digital asset market moving forward, including increased scrutiny
of the due diligence conducted by centralized exchanges prior to
accepting tokens and other digital assets for listing on their
platforms. [GN]
BINANCE.US: Securities Class Action May Face Hurdles
----------------------------------------------------
Alison Frankel, writing for Reuters, reports that a new,
high-profile class action against the cryptocurrency trading
platform Binance U.S. probably will not meet exactly the same fate
as a now-dismissed 2020 class action asserting similar allegations
of federal securities law violations against Binance U.S.'s
parent.
But that doesn't mean investors in the new Binance U.S. class
action, which claims the company violated U.S. securities laws when
it facilitated trades in the collapsed stablecoin Terra USD, will
have an easy time making their case.
Last March, U.S. District Judge Andrew Carter of Manhattan disposed
of the earlier Binance case in a tight, 10-page ruling -- quite a
feat considering that the amended complaint was a whopping 339
pages, claiming Binance improperly facilitated trading in nine
cryptocurrencies. The judge concluded that all of the allegedly
improper trades cited in the complaint were too old. U.S.
securities laws require investors to act quickly to assert claims.
The Binance plaintiffs waited too long, Carter said, so their
claims were time-barred.
Even more broadly -- and of more importance for future Binance
plaintiffs -- the judge held that Binance trades were not even
covered by federal securities laws. Under a 2010 U.S. Supreme Court
decision, Morrison v. National Australia Bank Ltd, U.S. securities
laws generally do not apply beyond U.S. borders. Investors, in the
main, can only sue when they traded securities on U.S. exchanges
or, in rarer instances, when they engaged in crucial trading
activities inside the U.S.
Advertisement · Scroll to continue
The Binance trades at issue in the New York case, Carter held, met
neither test. Binance is decentralized, with a headquarters in
Malta and a CEO who lives in Taiwan. It relies on computer servers
in the U.S., but the New York judge said the company's
technological infrastructure did not make Binance a U.S. exchange.
And investors could not show their Binance trades were otherwise
U.S. transactions, Carter said, merely by asserting that they
placed orders from the U.S. to purchase securities on a non-U.S.
exchange.
After Carter's ruling, any investor who tried to sue Binance would
likely face the same crippling problem: U.S. securities laws simply
don't apply to trading on a foreign exchange when the only link to
the U.S. is a buy order placed within U.S. borders.
If anyone understands that hard reality, it's the lawyers at Roche
Freedman, which was co-counsel in the class action Carter
dismissed. (Investors, I should mention, are appealing the
dismissal decision.)
So it's particularly notable that Roche Freedman is also co-counsel
in the new Binance class action. Why did the firm decide to file a
new case alleging improper trading on Binance's platform only two
months after the dismissal of a suit asserting very similar
claims?
Because the new case is not actually against the
Malta-headquartered Binance parent company. It's against Binance
U.S., a 2019-established subsidiary that is incorporated in
Delaware and based in California.
The new complaint alleges that Binance U.S. is, in fact, operating
as a U.S. exchange or broker-dealer, receiving buy and sell orders
from account holders and acting as the counterparty in every
transaction. Despite meeting the criteria for an exchange under
federal securities laws, the complaint said, Binance U.S. has
flouted its refusal to register as such with the U.S. Securities
and Exchange Commission.
That assertion is central to the new case: Five of investors' seven
claims for federal securities law violations are based on Binance's
allegedly improper failure to register as an exchange. (The other
two federal securities claims allege that Terra is an unregistered
security and that Binance U.S. is liable for selling it.)
Transactions on a U.S. exchange, said plaintiffs lawyer Kyle Roche
of Roche Freedman, are, without question, covered by U.S.
securities laws. "This is a U.S. entity," Roche told me. "I don't
think extraterritoriality will be an issue."
Rest assured, however, that Binance U.S. has plenty of other
defenses. You can expect a huge fight, for instance, about whether
the company is, as investors allege, operating as a de facto U.S.
exchange subject to regulation by the SEC. Spokespeople for Binance
and Binance U.S. did not respond to my email query, but told my
Reuters colleague Luc Cohen on June 13 that Binance U.S. is
registered with the U.S. Treasury Department's Financial Crimes
Enforcement Network and complies with all FinCEN regulations.
Binance also said that the assertions in the new class action are
meritless and that it will defend itself vigorously.
It's worth pointing out that if investors are right about Binance
U.S.'s exposure for failing to register as an exchange or a
broker-dealer, the company's liability for Terra USD trades is only
the beginning of its problems. I asked Roche by email if investors
who have lost money in Binance U.S. trades involving different
cryptocurrencies could assert the same claims as Terra USD
investors. Roche said yes, but didn't respond to my follow-up email
asking if he's working on additional lawsuits.
Even if investors can establish that Binance U.S. was required to
register with the SEC as an exchange or a broker-dealer, I
anticipate that the company will argue that federal securities laws
don't give investors a right to recover damages based on those
violations. Binance took that position in the class action before
Carter, the Manhattan judge, arguing in its dismissal motion that
no court has permitted private plaintiffs to assert such claims.
The judge did not rule on that argument because he dismissed the
case on other grounds.
Finally, Binance U.S. will probably contend that investors are
contractually required to arbitrate their claims. The class action
complaint anticipated that argument, which Binance also asserted in
the New York case, and pre-emptively alleged that the arbitration
clause cannot be enforced because the provision allows Binance U.S.
to sue customers in court while denying investors the same right.
So even without the silver bullet "domestic transaction" argument
that doomed the class action against Binance, Binance U.S. can
offer all kinds of rationales for tossing the new suit. It had
better hope that one of them does the trick -- or else get ready
for a litigation avalanche. [GN]
BLUE CROSS: Among Defendants in Medical Cannabis Class Action
-------------------------------------------------------------
KOAT reports that New Mexico Top Organics-Ultra Health along with
six medical patients have filed a class-action lawsuit against
seven insurers in New Mexico.
The lawsuit was filed for a failure to cover medical cannabis
costs.
The lawsuit seeks, "a determination that medical cannabis is a
health care service for treatment of behavioral health conditions."
Through being a behavioral health service, it argues that the cost
must be fully covered by insurance.
Senate Bill 317 was signed by Gov. Michelle Lujan Grisham in April,
2021. This bill stated that insurers should cover all of behavioral
health services, which includes behavioral health conditions.
The seven insurers listed in the lawsuit are Blue Cross and Blue
Shield of New Mexico, Cigna Health and Life Insurance Co.,
Presbyterian Health Plan, Presbyterian Insurance Co., True Health
New Mexico and Western Sky Community Care.
One of the six medical patients listed in the lawsuit is Sen. Jacob
R. Candelaria from Bernalillo County. The other five plaintiffs
listed are also medicinal patients. [GN]
BP EXPLORATION: 11th Cir. Upholds Summary Judgment in Causey Suit
-----------------------------------------------------------------
In the case, CHRISTOPHER F. CAUSEY, Plaintiff-Appellant v. BP
EXPLORATION & PRODUCTION INC., BP AMERICA PRODUCTION COMPANY,
Defendants-Appellees, Case No. 21-11548 (11th Cir.), the U.S. Court
of Appeals for the Eleventh Circuit affirms the order of Judge M.
Casey Rodgers of the U.S. District Court for the Northern District
of Florida granting the Defendants' Motion for Summary Judgment
Based on Election of Remedies under the Medical Benefits Class
Action Settlement Agreement.
I. Background
The case arises out of the April 20, 2010 blowout, explosions,
fires, and subsequent oil spill involving the Deepwater Horizon
mobile offshore drilling unit at the Macondo well site on the outer
continental shelf in the Gulf of Mexico off the coast of Louisiana.
It is one of several hundred individual cases brought against
Defendants BP Exploration & Production, Inc. and BP America
Production Co. (collectively, "BP") by clean-up workers and coastal
residents of North Florida who claim to suffer various chronic
medical conditions as a result of exposure to crude oil and other
chemical dispersants applied following the spill.
The cases were originally consolidated in the Eastern District of
Louisiana as part of the Deepwater Horizon multidistrict litigation
(MDL No. 2179). For personal injury plaintiffs, the MDL resolved in
the certification of a Medical Benefits Class and approval of a
comprehensive Medical Benefits Class Action Settlement Agreement
("Settlement Agreement" or "MSA"). The Settlement Agreement
provided a claims process for eligible class members who were
diagnosed with a specified physical condition on or before April
16, 2012, and also a separate Back End Litigation Option ("BELO")
for those with a physical condition diagnosed after that cutoff
date, categorized as a Later-Manifested Physical Condition
("LMPC").
The Settlement Agreement provides that a BELO plaintiff seeking
compensation for a particular LMPC must elect a remedy and may
pursue either (1) compensation for that LMPC through workers'
compensation law or (2) compensation from BP for that LMPC pursuant
to the BELO process. In other words, the BELO process entitles
Medical Benefits Class members who are diagnosed with a LMPC, and
who do not pursue workers' compensation benefits for that
condition, to bring an individual lawsuit for damages against BP.
Plaintiff Causey is a Medical Benefits Class member. He was
employed as a beach clean-up worker in Escambia County, Florida, in
the aftermath of the spill and was exposed to chemicals and
dispersants while working. Causey filed suit in the Eastern
District of Louisiana on Nov. 2, 2018, where he made the necessary
disclosures regarding his claim as a beach clean-up worker and was
permitted to proceed in a BELO suit for the LMPCs of chronic
conjunctivitis and chronic dry eye syndrome. In relevant part, the
necessary disclosures required Causey to state whether he had ever
filed a workers' compensation claim related to his conditions or
symptoms at any time after April 20, 2010, or in the last 10 years,
to which he consistently answered "No." The case was then
transferred to the District Court on July 17, 2019.
In the Complaint, consistent with the Proof of Claim and verified
Plaintiff Profile Form, Causey alleged that he performed beach
clean-up work for Plant Performance Services ("P2S"), working 12
hour days, 7 days a week for four weeks, in June and July 2010. His
primary duties involved direct contact with harmful chemicals,
digging and picking up tar balls on shore and placing them in
garbage bags or buckets. Causey alleged that his conditions of
chronic conjunctivitis and chronic dry eye syndrome first appeared
on July 8, 2010, and manifested within 24 hours of exposure, and
that he was diagnosed on Sept. 8, 2012. In his deposition, Causey
testified that he had not filed a workers' compensation claim in
the last 10 years.
The record reflects, however, that Causey signed a Release and
Waiver of Workers Compensation Claim on Oct. 14, 2013, in which his
employer, P2S, agreed to pay him $4,343.06 as full compensation for
all injuries or illnesses incurred on July 4, 2010, and also for
any other injuries or illnesses he incurred while employed by P2S,
even if the effects were not immediately apparent. The release
further states that it "constitutes an election of remedies and
constitutes a complete release of all actions against the Released
Parties arising out of any Workers' Compensation accident in any
way related to personal injury while Claimant was employed by P2S
including, but not limited to personal injury claims asserted or
that could be asserted in" the Deepwater Horizon MDL. The release
did not list any specific injuries or illnesses but released all
claims for personal injury, asserted and unasserted, against P2S.
In opposition to summary judgment, Causey provided some evidence
that P2S was not his only employer during his beach clean-up work.
He presented the deposition testimony of Dr. David Dutton, who was
BP's lead industrial hygienist and toxicologist for the Unified
Area Command, which coordinated the spill response. Based on his
review of the records, Dr. Dutton observed that Causey was a beach
worker who received safety training from P2S but was actually
employed by a different company, TL Wallace, during his beach
clean-up work, from July 21, 2010, through Nov. 9, 2010. Consistent
with this testimony, Causey agreed, during his deposition, that he
had worked for a couple of different companies, including TL
Wallace, which he said "rang a bell." He added, "Yes. I worked with
them for the remaining." When asked whether his "four or five days"
of training were all with P2S, Causey answered "yes." There is no
evidence that he filed a workers' compensation claim against TL
Wallace.
II. Discussion
The terms of a settlement agreement are given their "plain and
ordinary meaning" and enforced as a contract, according to their
terms. Under the unambiguous terms of the court-approved Settlement
Agreement, a Medical Benefits Class member must elect a remedy by
pursuing either a workers' compensation claim or pursuing a claim
through the BELO process—not both. And, a class member who has
filed a workers' compensation claim "for a particular LMPC may not
seek compensation for that LMPC through" the BELO process.
BP contends it is entitled to summary judgment based on the
Settlement Agreement's election of remedies provision because
Causey previously elected to pursue a worker's compensation claim
that included injuries or medical conditions related to his eyes
from exposure due to his beach clean-up work. BP argues that Causey
thereby released his right to bring this BELO suit.
Mr. Causey does not dispute that he signed the Oct. 14, 2013,
Release and Waiver of Workers Compensation Claim but contends there
is a dispute of fact ove whether the particular LMPCs involved in
this suit (chronic conjunctivitis and chronic dry eye syndrome)
were the subject of his workers' compensation claim. Causey points
to the differing descriptions of his symptoms in the workers'
compensation claim materials and notes that they do not reference
the "particular" LMPCs at issue -- "chronic conjunctivitis" and
"chronic dry eye syndrome." While an attorney memo noted that Dr.
Harbour diagnosed Causey with dry eye syndrome, Causey maintains
that is the only reference to a similar condition. Causey notes
that chronic conjunctivitis is not referenced at all in those
materials and that the release itself referred to neither
condition.
Mr. Causey further argues that there is a dispute of fact as to
whether the LMPCs, which he contends resulted from beach clean-up
work, were within the scope of his prior workers' compensation
claim, which was limited to injuries or illness incurred during his
employment with P2S. He argues that, in light of Dr. Dutton's
testimony, there is evidence that he only did safety training while
employed by P2S and did not perform any clean-up work for P2S.
The District Court will enforce the plain terms of the Settlement
Agreement, which are unambiguous and act to bar Causey's BELO suit
unless the particular LMPC asserted were not within the scope of
the workers' compensation benefits he pursued. It finds that on the
undisputed record, Causey's BELO suit is barred. There is no
dispute that the LMPCs at issue were diagnosed over a year before
the release was executed, and the record is devoid of any
indication that Causey sought to exclude those particular
conditions from his workers' compensation claim. They are within
the broad scope of the release.
Furthermore, the Court finds no genuine material dispute of fact
arising from Dr. Dutton's testimony. His statement that Causey
began working for TL Wallace on July 21, 2010, does not contradict
the dates of employment Causey documented with P2S (from June
through July 2010). Also, by Causey's own statements, the exposure
causing his conditions occurred between June 7, 2010, and July 16,
2010, and the conditions first appeared around July 8, 2010, within
24-hours of exposure. And P2S is the only employer named in the
Complaint, as well as in every other document Causey signed on
record in this litigation.
Time and again during these proceedings Causey indicated that he
had not filed any workers' compensation claim, but as he now
admits, this was not the case. Such an attempt to game the system
cannot be tolerated and runs completely contrary to the express
terms of the Settlement Agreement. The Court is not required to
draw unreasonable inferences, such as, that Causey's express denial
of any workers' compensation claim was inadvertent on four
occasions or that he was mistaken about the name of his employer in
every claim document and got all of the dates wrong. It is
undisputed that Causey was well aware of the LMPCs at issue at the
time he pursued and accepted workers' compensation benefits for his
beach clean-up work.
On the undisputed record, District Court finds that Causey's active
pursuit of a workers' compensation claim including ocular
conditions and his acceptance of a benefits award constituted a
voluntary election of the workers' compensation remedy for LMPCs of
chronic conjunctivitis and chronic dry eye syndrome, allegedly
caused by his exposure to oil and chemical dispersants as a beach
clean-up worker in July 2010 and diagnosed over a year before his
workers' compensation award. Consequently, pursuant to the
Settlement Agreement, Causey is now precluded from pursuing a BELO
claim for those same physical conditions.
Accordingly, the District Court granted BP Defendants' Motion for
Summary Judgment Based on Election of Remedies under the MSA is
granted. It directed the Clerk to enter judgment accordingly, tax
costs against the Plaintiff, and close the file.
III. Conclusion
With the benefit of oral argument and having reviewed the record
and the briefs, the Eleventh Circuit affirms for the reasons given
by the District Court in its well-reasoned decision.
A full-text copy of the Court's June 14, 2022 Order is available at
https://tinyurl.com/ycka39jt from Leagle.com.
BP EXPLORATION: Court Dismisses Coleman's Complaint With Prejudice
------------------------------------------------------------------
In the case, CHARLES COLEMAN v. B.P. EXPLORATION & PRODUCTION,
INC., ET AL., SECTION "R" (4), Civil Action No. 17-4157 (E.D. La.),
Judge Sarah S. Vance of the U.S. District Court for the Eastern
District of Louisiana grants the BP parties' motion for summary
judgment and dismisses the Plaintiff's complaint.
I. Background
Before the Court is Defendants BP Exploration & Production, Inc.,
BP American Production Company, and BP p.l.c.'s (collectively the
"BP parties") motion for summary judgment. Plaintiff Coleman does
not oppose the motion.
The case arises from Coleman's alleged exposure to toxic chemicals
following the Deepwater Horizon oil spill in the Gulf of Mexico.
The Plaintiff alleges that he assisted in the cleanup of the
Deepwater Horizon spill. Coleman asserts that, as part of this
work, he was exposed to harmful chemicals, including crude oil,
oil-dispersing chemicals, and decontaminants. He asserts that this
exposure has resulted in "headaches, nausea and stomach problems."
Coleman's case was originally part of the multidistrict litigation
("MDL") pending before Judge Carl J. Barbier. Coleman's case was
severed from the MDL as one of the "B3" cases for plaintiffs who
either opted out of, or were excluded from, the Deepwater Horizon
Medical Benefits Class Action Settlement Agreement. Coleman is a
plaintiff who opted out of the settlement.
After the Plaintiff's case was severed, it was reallocated to the
Court. On July 28, 2021, the Court issued a scheduling order that
established, among other deadlines, that the Plaintiff's expert
disclosures had to be "obtained and delivered" to defense counsel
by no later than April 1, 2022.
The Defendants now move for summary judgment, arguing that, because
the Plaintiff has not identified any expert testimony, he is unable
to carry his burden on causation. The Plaintiff has not filed an
opposition to the Defendants' motion.
II. Discussion
The Plaintiff asserts claims for general maritime negligence,
negligence per se, and gross negligence against the Defendants, as
a result of the oil spill and its cleanup. The Defendants contend
that the Plaintiff cannot prove that exposure to oil or dispersants
was the legal cause of his alleged injuries, and thus that he
cannot prove a necessary element of his claims against them. "Under
the general maritime law, a party's negligence is actionable only
if it is a 'legal' cause' of the plaintiff's injuries." "Legal
cause" is more than but-for causation; instead, the negligence
"must be a 'substantial factor' in the injury."
In the case, Judge Vance finds no indication that the Plaintiff has
retained an expert to provide testimony at trial to establish
causation. Nor is there an indication that he will present expert
testimony from his treating physician. The Plaintiff did not make
any expert disclosures by the Court-ordered deadline, nor did he
move for an extension. Without expert testimony on general and
specific causation, Judge Vance says, the Plaintiff is unable to
carry his burden on causation. Because he cannot prove a necessary
element of his claims against the Defendants, the Plaintiff's
claims must be dismissed.
III. Conclusion
For the foregoing reasons, Judge Vance grants the Defendants'
motion for summary judgment. She dismisses the Plaintiff's
complaint with prejudice.
A full-text copy of the Court's June 14, 2022 Order & Reasons is
available at https://tinyurl.com/bdcnfceu from Leagle.com.
BP EXPLORATION: Summary Judgment Bid in Walker Suit Partly OK'd
---------------------------------------------------------------
In the case, ALLEN WALKER, ET AL. v. BP EXPLORATION & PRODUCTION,
INC., ET AL., SECTION I, Civil Action No. 17-3012 (E.D. La.), Judge
Lance M. Africk of the U.S. District Court for the Eastern District
of Louisiana grants in part and denies in part the Defendants'
motion for partial summary judgment.
I. Introduction
Before the Court is a motion for partial summary judgment filed by
Defendants BP America Production Company; BP Exploration &
Production, Inc.; BP p.l.c.; Halliburton Energy Service, Inc.;
Transocean, Ltd.; Transocean Deepwater, Inc.; Transocean Holdings,
LLC; Transocean Offshore Deepwater Drilling, Inc.; and Triton Asset
Leasing GmbH. Plaintiffs Allen Walker ("Walker") and Roxanne Walker
oppose the motion. The Defendants filed a reply in support of the
motion.
II. Background
The instant action is a "B3" case arising out of the 2010 Deepwater
Horizon oil spill in the Gulf of Mexico. B3 cases involve "claims
for personal injury and wrongful death due to exposure to oil
and/or other chemicals used during the oil spill response (e.g.,
dispersant)." During the course of the MDL proceedings, Judge
Barbier approved the Deepwater Horizon Medical Benefits Class
Action Settlement Agreement, which included a Back-End Litigation
Option ("BELO") permitting certain class members to sue BP for
later-manifested physical conditions.The B3 plaintiffs, by
contrast, either opted out of the class action settlement agreement
or were excluded from its class definition. In any event, "B3
plaintiffs must prove that the legal cause of the claimed injury or
illness is exposure to oil or other chemicals used during the
response."
Allen Walker is a scuba diver who engaged in underwater photography
and videography during and after the Deepwater Horizon Oil Spill.
He alleges that his first exposure occurred on May 20, 2010, and
that he continued diving during the oil spill due to
representations made by BP that the Gulf waters were safe.
In the proposed pretrial order, the Plaintiffs allege that Walker's
medical issues include "gastrointestinal problems including nausea,
blood in urine and stool; neurological damage including Trigeminal
neuralgia, elevated levels of toxic chemicals in the blood,
decaying nails, vision loss and conjunctivitis, respiratory
problems including wheezing with shortness of breath, bronchitis,
pneumonia, burning of lungs, skin diseases including Melanoma,
rashes, bruising, dermatitis, eczema and psoriasis, fibromas,
Plantar Fibromatosis, and bursitis."
The Plaintiffs allege that Walker's "symptoms include chronic
respiratory challenges of shortness of breath and throat
irritation; neurologic compromise with headaches, dizziness, mental
fog, sleepless nights, depression and anxiety; chronic
gastrointestinal symptoms of nausea, vomiting and diarrhea with
blood in the stool; skin compromise with rashes, bruising and
mobile small lumps under the skin; and systemic complaints of
extreme fatigue and flu-like symptoms." The Plaintiffs' expert, Dr.
Gerald Cook, has submitted separate reports as to general and
specific causation pertaining to Walker's claimed injuries.
In their motion for partial summary judgment, the Defendants submit
that the Plaintiffs are required to offer admissible expert
testimony as to specific causation for all of Walker's injuries.
They contend that the Plaintiffs have only submitted sufficient
specific causation expert testimony as to Walker's chronic
dermatitis, and they therefore argue that the Court should enter
summary judgment dismissing Walker's claims as to all other
injuries.
The Plaintiffs do not contest the Defendants' argument that they
have only presented sufficient specific causation expert testimony
as to chronic dermatitis, but respond that expert testimony is not
required to establish specific causation with respect to Walker's
injuries, because they are temporary and acute forms of pain and
suffering, which are within the layperson's common knowledge.
III. Law & Analysis
B3 plaintiffs have the burden of proving that "the legal cause of
the claimed injury or illness is exposure to oil or other chemicals
used during the response." Under maritime law, "legal cause is
something more than `but for' causation, and the negligence must be
a 'substantial factor' in the injury." Courts use a two-step
process in examining the admissibility of causation evidence in
toxic tort cases. First, the district court must determine whether
there is general causation. Second, if it concludes that there is
admissible general-causation evidence, the district court must
determine whether there is admissible specificcausation evidence.
General causation is whether a substance is capable of causing a
particular injury or condition in the general population, while
specific causation is whether a substance caused a particular
individual's injury.
In their motion for partial summary judgment, the Defendants
contend that the Plaintiffs must introduce admissible expert
evidence to support medical causation, which consists of three
elements: a diagnosis, general causation, and specific causation.
They submit that Walker has only submitted expert testimony
addressing all three elements with respect to his claim for chronic
dermatitis, whereas the remainder of his health problems "lack one
or more of the three elements. They also note that they intend to
challenge the reliability of the Plaintiffs' general causation
expert report. Thus, consideration of general causation must be
deferred to trial.
The Plaintiffs respond that "specific causation expert testimony is
not necessary here because Walker's other complained-of injuries
are acute, temporary forms of pain and suffering for which the
issue of the causal relation to exposure to oil and/or dispersants
is 'within the layperson's common knowledge.'"
Judge Africk finds that the factual record before the Court
provides little detail as to when Walker developed each of his
claimed health issues and the duration of said issues. Without such
information, he cannot definitively opine on whether each of
Walker's alleged health issues requires expert testimony to
establish specific causation. Accordingly, resolution as to some of
Walker's alleged health issues must be reserved for trial.
To the extent that Walker intends to allege that any of his
exposure-related health problems persisted for an extended period
of time, such problems cannot be deemed to be "acute" or
"temporary." Indeed, notwithstanding the Plaintiffs' attempt to
portray all of Walker's health issues as temporary and acute in
their opposition memorandum, their complaint and expert report
explicitly designate some of Walker's health problems.
Additionally, the Plaintiff complains of conditions such as
melanoma, trigeminal neuralgia, and plantar fibromatosis, which are
presumably neither temporary, nor within the common understanding
of a layperson.
To the extent that Walker intends to allege that he suffered some
of his claimed health issues concurrently with, or immediately
after, exposure, Judge Africk holds that it may be the case that
"expert testimony regarding general causation combined with
specific evidence regarding the nature of the decedent's exposure
may be sufficient." However, to the extent that Walker alleges
chronic medical conditions—except depression and anxiety, the
Plaintiffs must present expert testimony supporting specific
causation. This holding extends not only to injuries impliedly or
explicitly designated as chronic conditions (e.g., melanoma,
plantar fibromatosis, chronic dermatitis, and chronic respiratory
issues), but also to symptoms such as coughing or nausea, insofar
as Walker alleges that such symptoms persisted for extended periods
of time. Because the Plaintiffs have presented sufficient specific
causation expert testimony as to chronic dermatitis, they may
proceed with their claim as to chronic dermatitis at trial.
With respect to depression and anxiety, which the Plaintiffs allege
that Walker suffers from, Judge Africk says it is unclear whether
the Plaintiffs intend to allege that these problems result directly
from exposure in the sense that Walker experiences depression and
anxiety due to the hardship of his alleged ordeal with exposure and
various physical injuries and conditions.
If alleging the former, Walker would need expert testimony
establishing specific causation (in addition to general causation).
However, if alleging the latter, such allegations would sound more
in the register of damages for "mental pain and suffering," or
possibly "loss of enjoyment of life" -- both of which the
Plaintiffs plead in instructive, in the absence of Fifth Circuit
precedent indicating that maritime law necessitates a different
mode of analysis. The parties did not address this issue with any
specificity. Judge Africk denies summary judgment as to mental
health conditions, including depression and anxiety.
IV. Conclusion
Accordingly, Judge Africk grants in part and denies in part the
motion as set forth. Whether the Plaintiffs can request damages for
certain alleged medical conditions will depend on the testimony
presented at trial.
A full-text copy of the Court's June 15, 2022 Order & Reasons is
available at https://tinyurl.com/2p98nhbb from Leagle.com.
BREVILLE PTY: Class Action Mulled Over Defective Countertop Ovens
-----------------------------------------------------------------
Top Class Actions reports that kitchen appliance brand Breville
sells countertop ovens with major problems. Not only were Breville
ovens designed with fans that may fail after just weeks of use, but
they may also explode and send hot glass shards flying 15 feet or
more.
Further, the countertop oven maker may be aware that its product
could stop working and place customers in danger, but the company
allegedly refuses to acknowledge the problems.
Breville's smart oven pro models and Smart Oven Airfryer, along
with other products, may be affected by defects that cause their
fans and electrical systems to stop working, as well as explosions.
If you own a Breville product and have had trouble with the fan or
electrical system, or your oven has cracked or exploded, you may
have a legal claim.
Do You Qualify?
If you've bought a Breville oven that has exploded or had a fan or
electrical malfunction, you may be eligible to join a class action
lawsuit investigation that aims to hold the maker accountable.
Shards from Breville oven melted countertop
Breville ovens retail for about $400 and are advertised as
replacements for consumers' current ovens.
The Breville oven defect, according to one consumer, causes the
glass to explode, which sends shards flying.
She claims that while she was using her Breville oven to heat
frozen French fries she heard a noise that sounded like a bomb
exploding. The oven had exploded, and hot shards of glass had flown
across the kitchen. She says that the shards were so hot they
melted the sealant on the consumer's countertops.
Breville's 'underpowered' fan fails
In addition to these explosion claims, Breville has also been
accused of selling ovens with fans that routinely stop working,
which renders the oven inoperable and useless.
A consumer claims Breville sold its Smart Oven Pro countertop
convection oven without disclosing that the convection fan has a
propensity to fail. The consumer says the fans often stop working
months after purchase.
The fan is described as making a loud grinding sound or hum that
gets worse until it seizes up. The fan, the consumer claims, is
undersized and underpowered for its use and becomes clogged with
atomized food particles during the cooking process.
Further, the fan is impossible to clean without disassembling the
oven, and repairs can cost as much as half the cost of a new oven,
according to the consumer who claims Breville refused to take
action in the form of a recall or refund of the full purchase
price.
Breville reviews signaled dangers
Indeed, there have been a number of customer reviews claiming their
Breville ovens, air fryers, and other products exploded without
warning.
"The front glass unit shattered and popped to outside with three
uses of roasting … This could have potentially hurt my family if
anybody had been near the thing," one reviewer said.
Many of the reviewers left photos showing shattered glass.
"Toasting a piece of toast and the glass in the oven door
exploded," said one reviewer, Nina K. "Very dangerous!!! And a mess
to clean up."
"After five months of use, the glass oven door shattered!" a user
named Dustyjob wrote. "Unfortunately, it's beyond return time for
Amazon and Breville doesn't do refunds unless purchased from them.
So I am getting a replacement that I am worried about using and
having this piece of garbage blowing up in my face."
Some of the reviews have been posted since 2019, giving Breville
time to address the problem; however, it appears that the issue,
caused by nickel sulfide in the glass, remains.
Join a Breville Oven Lawsuit Investigation
If you've purchased a Breville oven and experienced an explosion,
fan or electrical problems, you may be able to join a lawsuit that
aims to hold the company accountable. [GN]
BRIGHT HORIZONS: Torres Files Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Bright Horizons
Children's Centers LLC. The case is styled as Rosemary Torres, on
behalf of herself and others similarly situated v. Bright Horizons
Children's Centers LLC, Case No. 1:22-cv-04350-GHW-JLC (S.D.N.Y.,
May 26, 2022).
The nature of suit is stated as Other Labor.
Bright Horizons -- https://www.brighthorizons.com/ -- is a United
States–based child-care provider and is the largest provider of
employer-sponsored child care.[BN]
The Plaintiff is represented by:
Mohammed Ahmed Gangat, Esq.
LAW OFFICE OF MOHAMMED GANGAT
675 Third Avenue, Ste. 1810
New York, NY 10017
Phone: (718) 669-0714
Email: mgangat@gangatllc.com
BUBBIES FINE FOODS: Hernandez Files ADA Suit in S.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Bubbies Fine Foods,
LLC. The case is styled as Mairoby Hernandez, individually and on
behalf of all others similarly situated v. Bubbies Fine Foods, LLC,
Case No. 1:22-cv-05029 (S.D.N.Y., June 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Bubbies Fine Foods -- https://bubbies.com/ -- produces naturally
fermented pickles and sauerkraut, along with relish, horseradish,
and spicy pickled foods.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
BZX DAO: Sheppard Mullin Attorneys Discuss Liability Class Action
-----------------------------------------------------------------
Christopher Bosch, Esq., James Gatto, Esq., Yasamin Parsafar, Esq.
and Dhara Shah, Esq., of Sheppard Mullin Richter & Hampton LLP, in
an article for JDSupra, report that a class action lawsuit filed by
users of a decentralized finance ("DeFi") protocol managed by a
decentralized autonomous organization, or "DAO," may shed light on
the potential legal liabilities of a DAO and its participants. The
complaint in Sarcuni v. bZx DAO, No. 22-cv-0618 (S.D. Cal. May 2,
2022), highlights several issues related to DAO liability of which
DAO participants should be aware. There is a common misperception
that an unincorporated DAO is not subject to liability because
there is no entity for regulators to pursue. The fact is that such
DAOs may be deemed general partnerships and the participants may
each bear some liability for activities of the DAO. In some cases,
a DAO includes a wrapper entity, in part, to shield participants
from such liability. This issue highlights a tension between the
aspirations of Web3 entities to be decentralized and
community-governed on the one hand, and the challenges of
accomplishing those aspirations given the current state of
corporate law on the other hand.
Users of the bZx DeFi protocol filed a class action lawsuit against
bZx DAO, its alleged successor Ooki DAO, co-founders of the bZx
protocol, investors, and protocol and platform operators after a
security breach allegedly resulted in greater than a $40 million
loss of funds for token holders. Plaintiffs allege that the
creators of the bZx protocol told users they need not "ever worry
about . . . getting hacked or [anyone] stealing their funds."
However, the protocol "had not yet implemented security measures
that its operators knew were reasonably necessary to protect the
protocol." As a result, a successful "phishing" attack on a bZx
developer allowed hackers to gain access to key passphrases that
then permitted them to drain Plaintiffs' accounts. Plaintiffs
allege that the bZx DAO operates as a general partnership and, as
such, its participants are jointly and severally liable to the
users of the protocol for their loss of funds resulting from the
hack.
While a compensation proposal was put to a vote and adopted by
participants of the DAO, Plaintiffs claim the proposal, which
entails the issuance of replacement tokens in a manner that does
not benefit Plaintiffs and a repayment plan that would take
"thousands" of years, is inadequate.
The DAOEntity Legal Status and Allocation of Liabilities
DAOs are intended to be community-driven organizations without
centralized leadership, governed instead by token holders based on
rules stored within smart contracts on the blockchain. Token
holders can propose and vote on governance proposals in accordance
with these rules in a fair, democratic, and transparent manner. In
some cases, a DAO may have a governing council with certain
oversight control. Because they typically are intended to operate
without a leadership team and are typically unincorporated, a key
legal question has been how and where liability accrues in the
operation of a DAO.
The answer to these questions turns, in part, upon the legal status
of DAOs. Sarcuni v. bZx DAO addresses this thorny issue, with
Plaintiffs asserting that the relevant DAOs operate as general
partnerships among founders, investors, and token holders, and that
as such, defendants, as co-partners with Plaintiffs, are "jointly
and severally responsible for making good to the Plaintiffs."
Generally speaking, the association of two or more persons to carry
on as co-owners of an unincorporated business for profit forms a
legal partnership, whether or not the persons intend to form a
partnership. In a general partnership, partners are often deemed
jointly and severally liable for the partnership's obligations, and
partners owe one another certain duties established by agreement,
statute, or case law. By contrast, when an entity is a corporation
or limited liability company, for example, the shareholders or
participants typically are shielded from personal liability (with
limited exceptions). Plaintiffs in Sarcuni v. bZx DAO assert that
because the bZx DAO is a general partnership and defendants
negligently breached duties owed to Plaintiffs by failing to
supervise DAO developers and secure their funds as promised, they
can be held jointly and severally liable as co-partners to
Plaintiffs for their loss.
In its 2017 report titled Report of Investigation Pursuant to
Section 21(a) of the Securities Exchange Act of 1934: The DAO (the
"DAO Report"), the SEC considered whether a DAO operated as a
general partnership. The SEC concluded that the DAO under
consideration there bore "little resemblance to . . . a genuine
general partnership" where the pseudonymity and dispersion of DAO
token holders made it difficult for them to join together to effect
change or exercise meaningful control, and thousands of individuals
and/or entities traded DAO tokens in the secondary market.
The proper legal classification of DAOs will likely be the subject
of future litigation and legislation. On June 7, 2022, Senators
Gillibrand and Lummis introduced The Responsible Financial
Innovation Act, a highly anticipated crypto bill. Section 204 of
the bill specifies that, for purposes of the Internal Revenue Code,
the default classification of a DAO is a business entity which is
not a disregarded entity. It further defines a DAO as an
organization that utilizes smart contracts to facilitate collective
action, is governed primarily on a distributed basis, and is
"properly incorporated or organized under the laws of a State or
foreign jurisdiction as a [DAO], cooperative, foundation or any
similar entity."
Those founding or joining a DAO should consult with attorneys who
are familiar with DAOs and who follow the related legal
developments in order to fully consider the legal implications of
their involvement with the entity, including potential exposure to
personal liability.
Misinformation Related Liabilities
Although not asserted in Sarcuni v. bZx DAO, the alleged facts in
the case highlight an important issue for crypto projects –
statements made to consumers, for example in advertising and
marketing, may give rise to claims related to false or deceptive
advertising or misinformation. Such claims may include false
advertising under the Lanham Act, violations of Section 5 of the
Federal Trade Commission Act prohibiting "unfair or deceptive acts
or practices in or affecting commerce," and analogous state laws.
In the bZx case, Plaintiffs allege bZxrepresented that the Fulcrum
DeFi platform, built on the bZx protocol, was "non-custodial" and
therefore users would maintain control of their own private keys
and assets, when in reality a single password provided access to
"all of the client funds on two of the three blockchains on which
Fulcrum operated." bZx made other statements regarding its "World
Class Security" and claimed that users should "[n]ever worry about
. . . getting hacked or stealing your funds." Yet, this was
precisely what happened.
Participants of a DAO should seek legal review of statements they
are making in their marketing and white papers regarding any
related protocol, platform, application or other offering to
minimize the risk of being subject to claims arising from alleged
misinformation.
Conclusion
Sarcuni v. bZx DAO highlights the important question of how DAOs
are to be legally classified and how liabilities accrued by the
DAO, including by the alleged negligence of its developers, are to
be allocated as a result. The fact pattern also highlights
potential exposure to claims for false advertising and unfair or
deceptive practices arising from statements later alleged to have
been untrue. While their precise legal classification is a
fact-intensive inquiry that remains up for debate, DAOs and their
participants should be aware that uncertainty does not serve as a
shield from liability for breaches of duties, contracts, or state
and federal law. Other important considerations for DAOs that are
not a legal entity include: their ability to validly enter into a
contract, whether they have standing to sue if they suffer legal
harm, who do you serve if you want to sue a DAO, the rights and
obligations of DAO participants, whether a DAO owns trademarks or
other intellectual property, and many more. In determining whether
to develop or participate in a DAO, individuals and entities should
apprise themselves of these developing legal issues regarding these
entities and seek experienced counsel.
*Dhara Shah is a law clerk in the Intellectual Practice Group in
the firm's Chicago office. [GN]
C&C VERDE: Faces Consumer Fraud Suit Over Unfair Business Practices
-------------------------------------------------------------------
Anthony Victor Reyes, writing for KVOA, reports that a consumer
fraud lawsuit has been filed against two Tucson auto repair shops
following an undercover investigation, according to a press release
shared by Arizona Attorney General Mark Brnovich on June 15.
According to state officials, agents with the attorney general's
office brought vehicles for repair to the Tucson Midas locations at
6740 E. Tanque Verde Rd. and 333 W. Valencia Rd. in June and
October 2020.
At the Tanque Verde Road location, the state claims the assistant
manager told the undercover agent that the vehicle needed a
serpentine belt to be replaced and its air conditioning system
needed an evacuation and recharge of refrigerant. However, state
said the employees did not replace the belt or "evaluate the level
of refrigerant or perform the evacuation and recharge."
The agent at the Valencia Road location was allegedly told that a
fuel line was cracked, and the spark plugs were "all burnt up."
Despite the assessment allegedly being incorrect, the manager
reportedly charged the agent replacement of the spark plugs, a
three-part fuel system service kit and a throttle body service that
includes a fuel additive. The state alleges that the vehicle's fuel
had no presence of the fuel additive when tested and an undercover
recording confirmed that the full throttle body service was not
performed. The agent also reported that the manager said "the
vehicle drove great on a test drive when no test drive was
completed."
According to the press release, both of the Midas locations
involved are owned by Christopher Conforti and Nicholas Conforti.
"Not only did these two shops recommend and charge consumers for
unnecessary repairs, but they also didn't even perform the work,"
said Arizona Attorney General Mark Brnovich. "Our undercover auto
sting program is sending a strong message that this type of
despicable fraud will not be tolerated in our communities."
Officials say the lawsuit could result in the two locations
providing consumer restitution up to $10,000 in "civil penalties
for each violation of the Arizona Consumer Fraud Act, injunctive
relief, and attorney's fees and costs."
The case was filed against C&C Verde LLC d/b/a Midas and C&C
Valencia LLC, d/b/a Midas. [GN]
C.R. ENGLAND: Bohler Files Suit in D. Utah
------------------------------------------
A class action lawsuit has been filed against C.R. England. The
case is styled as Elliot Bohler, individually, and on behalf of all
others similarly situated v. C.R. England, Case No.
2:22-cv-00396-BSJ (D. Utah, June 15, 2022).
The nature of suit is stated as Other P.I. for Breach of Contract.
C.R. England -- https://www.crengland.com/ -- is one of the largest
temperature-controlled carriers in the nation dedicated to
providing a comprehensive range of transportation solutions to meet
the requirements of a rapidly evolving customer base.[BN]
The Plaintiff is represented by:
James E. Magleby, Esq.
Jennifer F. Parrish, Esq.
MAGLEBY CATAXINOS & GREENWOOD
141 W Pierpont Ave.
Salt Lake City, UT 84101
Phone: (801) 359-9000
Fax: (801) 359-9011
Email: magleby@mcgiplaw.com
parrish@mcgiplaw.com
CANADA: Faces Suit Over Military Members' Leaked Personal Info
--------------------------------------------------------------
Lee Berthiaume, writing for The Canadian Press, reports that the
company overseeing the federal government's $900-million settlement
deal with military members who experienced sexual misconduct in
uniform is admitting to more privacy breaches, despite repeated
promises to have fixed the problem.
Epiq Class Action Services Canada confirmed the additional errors
after a third veteran came forward to The Canadian Press to report
having received an email containing the personal details of a
different claimant earlier this month.
The veteran, who asked not to be identified because she still works
for the federal government, said the information was contained in
an attachment as she was fighting Epiq after the company sent her
settlement cheque to the wrong address.
The Federal Court appointed Epiq to administer the settlement
process after the government reached an agreement in November 2019
with plaintiffs in three overlapping class-action lawsuits dealing
with sexual misconduct in the military.
"I feel betrayed and worried that my personal information has been
sent to other members," the veteran said. "I submitted over 180
pages of documents and I'm sick with worry that someone has my
information. It's victimizing all over."
Epiq has previously said the inadvertently released information
does not include testimonials and other such documents, but only
claimants' names, contact details and randomly generated claim
numbers.
It has nonetheless apologized for the errors since the first was
reported in March, and repeatedly promised that it was taking the
appropriate disciplinary and procedural steps to ensure more
claimants are not affected.
The leaks also prompted a panel of claimants, lawyers and
government officials tasked with overseeing the settlement to order
an independent audit of Epiq's claims process to prevent further
problems.
The company has since retained an external auditor to review and
recommend changes to its procedures, Epiq vice-president Angela
Hoidas said in an email, adding: "We sincerely regret these
additional disclosures.
"While inadvertent human errors have affected a small fraction of
the claims we have successfully administered in this class, we
believe that any inadvertent error is unacceptable, and have
already taken substantial steps to improve our policies and
procedures."
Lawyer Jonathan Ptak, who represents some of the veterans and
active service members involved in the three lawsuits settled by
the government, said the audit has started.
Yet neither Epiq's promises to address the problem nor the decision
to order an audit stopped the latest breach, which according to a
statement on Epiq's website brings the total number of claimants
whose private information has been compromised to 109.
While Epiq has not revealed the total number of actual incidents in
which a breach has occurred, Defence Department spokeswoman Jessica
Lamirande said the company has reported 20 individual breaches
since Feb. 8.
That includes 15 previously unreported incidents discovered by the
company during an internal review in late February.
"National Defence takes the issue of privacy very seriously,"
Lamirande said in an email. "We have requested that Epiq
investigate and take steps to ensure that this matter is contained,
resolved, and does not happen again."
Nearly 20,000 people have applied for compensation as part of the
class-action settlement.
Retired master corporal Amy Green and fellow veteran France Menard
said they have not heard anything more from the company, government
or law firms involved in the settlement since receiving private
information about other claimants from Epiq earlier this year.
"It's disappointing, that's for sure," Menard said. "They're trying
to put everything under the rug."
The veteran who most recently received another claimant's
information said she and others had already been having problems
with Epiq even before the privacy breaches, including incorrect
information and settlement payments sent to the wrong addresses.
The information sent to Menard and Green consists of the names of
individual claimants as well as their claim numbers, which can be
used to submit documents through a secure link on the class-action
website.
Hoidas has said such documents would then be reviewed by Epiq, and
that individual files cannot be accessed, but Menard and Green say
they are unsatisfied with Epiq's response, particularly given the
sensitive nature of the claims and settlement deal.
While the office of the privacy commissioner said in March that it
was looking into the issue after receiving a privacy breach report
from Epiq, spokesman Vito Pilieci said there was no update to the
watchdog's probe. [GN]
CAREDX INC: Gross Law Firm Reminds of July 22 Deadline
------------------------------------------------------
The Gross Law Firm issues the following notice to shareholders of
CareDx, Inc.
Shareholders who purchased shares of CDNA during the class period
listed are encouraged to contact the firm regarding possible lead
plaintiff appointment. Appointment as lead plaintiff is not
required to partake in any recovery.
CONTACT US HERE:
https://securitiesclasslaw.com/securities/caredx-inc-loss-submission-form/?id=28545&from=4
CLASS PERIOD: This lawsuit is on behalf of all persons or entities
who purchased CareDx common stock between February 24, 2021, and
May 5, 2022.
ALLEGATIONS: The complaint alleges that during the class period,
Defendants issued materially false and/or misleading statements
and/or failed to disclose that: (1) defendants had engaged in a
variety of improper and illegal schemes to inflate testing services
revenue and demand, including pushing a surveillance protocol
through inaccurate marketing materials, offering extravagant
inducements or kickbacks to physicians and other providers, and
improperly bundling expensive testing services with other blood
tests as part of the Company's RemoTraC service for remote,
home-based, blood-drawing; (2) these practices, and others,
subjected CareDx to an undisclosed risk of regulatory scrutiny; (3)
these practices rendered the Company's testing services revenue
reported throughout the class period artificially inflated; and (4)
as a result, defendants' positive statements about the Company's
business, operations, and prospects were materially false and
misleading and/or lacked a reasonable basis at all relevant times.
DEADLINE: July 22, 2022 Shareholders should not delay in
registering for this class action. Register your information here:
https://securitiesclasslaw.com/securities/caredx-inc-loss-submission-form/?id=28545&from=4
NEXT STEPS FOR SHAREHOLDERS: Once you register as a shareholder who
purchased shares of CDNA during the timeframe listed above, you
will be enrolled in a portfolio monitoring software to provide you
with status updates throughout the lifecycle of the case. The
deadline to seek to be a lead plaintiff is July 22, 2022. There is
no cost or obligation to you to participate in this case.
WHY GROSS LAW FIRM? The Gross Law Firm is nationally recognized
class action law firm, and our mission is to protect the rights of
all investors who have suffered as a result of deceit, fraud, and
illegal business practices. The Gross Law Firm is committed to
ensuring that companies adhere to responsible business practices
and engage in good corporate citizenship. The firm seeks recovery
on behalf of investors who incurred losses when false and/or
misleading statements or the omission of material information by a
company lead to artificial inflation of the company's stock.
Attorney advertising. Prior results do not guarantee similar
outcomes.
CONTACT:
The Gross Law Firm
15 West 38th Street, 12th floor
New York, NY, 10018
Email: dg@securitiesclasslaw.com
Phone: (646) 453-8903 [GN]
CAREDX INC: Levi & Korsinsky Reminds of July 22 Deadline
--------------------------------------------------------
Levi & Korsinsky, LLP notifies investors in CareDx, Inc. ("CareDx"
or the "Company") of a class action securities lawsuit.
The lawsuit on behalf of CareDx investors has been commenced in the
the United States District Court for the Northern District of
California. This lawsuit is on behalf of all persons or entities
who purchased CareDx common stock between February 24, 2021, and
May 5, 2022. Follow the link below to get more information and be
contacted by a member of our team:
https://www.zlk.com/pslra-1/caredx-inc-information-request-form?prid=28651&wire=5
or contact Joseph E. Levi, Esq. either via email at
jlevi@levikorsinsky.com or by telephone at (212) 363-7500. There is
no cost or obligation to you.
Cannot view this video? Visit:
https://www.youtube.com/watch?v=82VTi481nX8
CareDx, Inc. NEWS - CDNA NEWS
CASE DETAILS: The filed complaint alleges that defendants made
false statements and/or concealed that: (1) defendants had engaged
in a variety of improper and illegal schemes to inflate testing
services revenue and demand, including pushing a surveillance
protocol through inaccurate marketing materials, offering
extravagant inducements or kickbacks to physicians and other
providers, and improperly bundling expensive testing services with
other blood tests as part of the Company's RemoTraC service for
remote, home-based, blood-drawing; (2) these practices, and others,
subjected CareDx to an undisclosed risk of regulatory scrutiny; (3)
these practices rendered the Company's testing services revenue
reported throughout the class period artificially inflated; and (4)
as a result, defendants' positive statements about the Company's
business, operations, and prospects were materially false and
misleading and/or lacked a reasonable basis at all relevant times.
WHAT THIS MEANS TO SHAREHOLDERS: If you suffered a loss in CareDx
during the relevant timeframe, you have until July 22, 2022 to
request that the Court appoint you as lead plaintiff. Your ability
to share in any recovery doesn't require that you serve as a lead
plaintiff.
NO COST TO YOU: If you are a class member, you may be entitled to
compensation without payment of any out-of-pocket costs or fees.
Discuss your rights with our legal team without cost or
obligation.
PROTECT YOUR FINANCIAL INTERESTS: Complete this brief submission
form
https://www.zlk.com/pslra-1/caredx-inc-information-request-form?prid=28651&wire=5
or call 212-363-7500 to discuss the case.
WHY LEVI & KORSINSKY: Over the past 20 years, the team at Levi &
Korsinsky has secured hundreds of millions of dollars for aggrieved
shareholders and built a track record of winning high-stakes cases.
Our firm has extensive expertise representing investors in complex
securities litigation and a team of over 70 employees to serve our
clients. For seven years in a row, Levi & Korsinsky has ranked in
ISS Securities Class Action Services' Top 50 Report as one of the
top securities litigation firms in the United States.
CONTACT:
Levi & Korsinsky, LLP
Joseph E. Levi, Esq.
Ed Korsinsky, Esq.
55 Broadway, 10th Floor
New York, NY 10006
jlevi@levikorsinsky.com
Tel: (212) 363-7500
Fax: (212) 363-7171
www.zlk.com [GN]
CARIBBEAN SPA LLC: Fails to Pay Proper Wages, Ayala Suit Alleges
----------------------------------------------------------------
ANGIE AYALA and YENNY CAROLINA VILLAMIL PENA, individually and on
behalf of all others similarly situated, Plaintiffs v. CARIBBEAN
SPA LLC (d/b/a CARIBBEAN SPA); and ELSA JARAMILLO, Defendants, Case
No. 1:22-cv-03461 (E.D.N.Y., June 13, 2022) is an action against
the Defendants for failure to pay minimum wages, overtime
compensation, and provide accurate wage statements.
The Plaintiffs were employed by the Defendants as masseuses.
CARIBBEAN SPA LLC (d/b/a CARIBBEAN SPA) owns and operate a spa,
located at Brooklyn, NY 11223 under the name "Caribbean Spa". [BN]
The Plaintiffs are represented by:
Catalina Sojo, Esq.
CSM LEGAL, P.C
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
CEDAR RECYCLING: Certification of Rest & Meal Breaks Claim Affirmed
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In the case, TRAVIS WORLEY and ANDREW HAMRY, on their own behalf
and on the behalf of all others similarly situated,
Respondents/Cross-Petitioners v. CEDAR RECYCLING INC., a Washington
Corporation, VALLEY RECYCLING INC., a Washington Corporation, BURT
GILLELAND, and/or his marital community, and ANGELA LEE, and/or her
marital community, Petitioners/Cross-Respondents, Case No.
54900-0-II (Wash. App.), the Court of Appeals of Washington,
Division Two, issued an Opinion:
a. affirming the class certification of the rest and meal
breaks claim;
b. reversing the denial of class certification for the
overtime, off-the-clock, and willful withholding of wages
claims based on inadequate factual findings; and
c. remanding to the trial court to resolve the inadequate
factual findings on typicality for the overtime,
off-the-clock, and willful withholding of wages claims.
I. Introduction
Class Representatives Travis Worley and Andrew Hamry sought class
certification for a class of employees against Cedar Recycling,
Valley Recycling, Burt Gilleland, and Angela Lee (collectively
Cedar/Valley) for failure to pay overtime wages, failure to pay
wages for off-the-clock work, failure to provide rest and meal
breaks, and willful withholding of wages. The trial court certified
the class only for the rest and meal breaks claim, finding the
other claims failed to meet the typicality requirement for class
certification.
Cedar/Valley appeals the trial court's decision, arguing that the
commonality, typicality, adequacy, predominance, and superiority
requirements for class certification were not met for the rest and
meal breaks claim. It also argues that the class definition must be
amended because the class period is open-ended.
Class Representatives cross-appeal the trial court's decision,
arguing that the trial court failed to provide adequate factual
findings on the typicality requirement in denying the overtime,
off-the-clock, and willful withholding of wages claims. Class
Representatives further argue that the trial court erred because
the typicality requirement was met for the overtime, off-the-clock,
and willful withholding of wages claims. They also argue that the
trial court erred in reaching the merits of the case and in
accepting Cedar/Valley's declarations from current and former
employees.
II. Background
Mr. Worley worked for Cedar Recycling from November 2016 to April
2017. Cedar Recycling dismissed Worley for insubordination and
improper conduct on April 14, 2017.
On May 16, 2017, Worley filed a claim with the Washington State
Department of Labor and Industries (L&I) after his termination
because Cedar Recycling had yet to deliver his final paycheck.
Cedar Recycling attempted to send Worley a check with his final
wages, but Worley did not receive it. At the beginning of July
2017, Cedar Recycling sent another check to Worley. On July 13,
Worley withdrew his wage complaint with L&I.
On July 19, 2017, Worley filed a complaint for damages against
Cedar Recycling and Jerald Eck1 for "failure to timely pay wages"
and for "willful withholding of wages." He claimed that Cedar
Recycling had refused to deliver his final paycheck and that the
failure to pay was willful.
On Aug. 20, 2018, Worley filed a first amended complaint for
damages against only Cedar Recycling. He added claims for "failure
to provide paid rest breaks," "failure to pay overtime wages," and
"failure to keep accurate payroll and work records." He asserted
that he frequently worked more than 40 hours per week. When Worley
worked more than 40 hours per week, Cedar Recycling would require
him to fill out a false timecard that stated he only worked 40
hours. Cedar Recycling would then pay any overtime worked in cash
at Worley' s regular rate. Worley further asserted that Cedar
Recycling failed to provide Worley with a 10-minute rest break for
every four hours worked and did not pay Worley when he missed those
rest breaks.
On Feb. 6, 2019, Worley filed a second amended complaint for
damages against Cedar Recycling, Valley Recycling, Burt Gilleland,
and Angela Lee. His second amended complaint sought damages on
behalf of all others similarly situated. He added claims that
Cedar/Valley had "engaged in systemic policies, practices, and
procedures of willfully failing to pay all wages" to employees for
rest breaks that were not taken, overtime hours worked, and time
worked off the clock.
On May 2, Worley filed a third amended complaint for damages
against Cedar/Valley. He did not add any claims to this complaint.
On October 3, Worley filed a fourth amended complaint for damages
against Cedar/Valley. Andrew Hamry joined the action as a class
representative. Hamry worked for Valley Recycling from August 2014
to April 2015 and from March 2016 to June 2016. Hamry claimed that
Valley Recycling required him to show up 15 minutes early to work
and he often worked beyond 5 p.m. However, this was not reflected
on his timesheets, and he was usually not paid for any overtime
hours worked. When Hamry was paid for overtime hours, he was told
to fill out a separate time sheet that reflected only 40 hours of
work in a week and was then paid in cash at his regular hourly
rate. Hamry also claimed that Valley Recycling did not "furnish or
encourage" him to take a 10-minute rest break for every four hours
worked or 30-minute meal breaks for every five hours worked. Hamry
claimed that, like Worley, he did not receive wages for work he
performed for his final paycheck before he terminated his
employment with Valley Recycling.
Messrs. Worley and Hamry filed a motion for class certification,
asking the court to designate them as class representatives and
claiming that Cedar/Valley "willfully failed to pay overtime,
provide and pay for breaks, and to pay employees for all hours
worked." They provided the following definition for the proposed
class: All current and former non-managerial employees who worked
for Cedar Recycling Inc. and Valley Recycling Inc. for any period
of time from Aug. 20, 2015, through final resolution of this
matter, who were based or resided in the State of Washington during
such employment.
The trial court granted the motion for class certification as to
the rest and meal break claim only. It found that the common issue
was "whether Cedar/Valley had a policy of adequately encouraging
Class members to take meal and rest breaks or providing proper wage
payments if breaks were not taken." The trial court stated it would
grant certification for the rest and meal break claim because there
was "no policy that was put into standard practice" for requiring
employees to take their rest and meal breaks. Further, while some
employees stated they were encouraged to take breaks, it was not
enforced in practice.
Both parties sought discretionary review of the trial court's order
granting class certification for the rest and meal breaks claim,
which the Court of Appeals granted.
III. Analysis
A. Cedar/Valley's Appeal
Cedar/Valley argues that the trial court abused its discretion by
certifying the class for the rest and meal breaks claim. It claims
that (i) CR 23(a)'s commonality requirement was not met for the
rest and meal breaks claim; (ii) CR 23(a)'s typicality requirement
was not met for the rest and meal breaks claim; (iii) Worley and
Hamry are not adequate representatives of the proposed class
because their credibility is undermined; (i) CR 23(b)(3)'s
predominance requirement was not met for the rest and meal breaks
claim; and (v) the Class Representatives failed to meet CR
23(b)(3)'s superiority requirement.
The Court of Appeals disagrees. It finds that (i) because the Class
Representatives provided sufficient evidence to show commonality,
the trial court did not abuse its discretion in finding that
commonality was met with regard to the rest and meal breaks claim;
(ii) the Class Representatives could establish liability by using
representative evidence to prove a pattern or practice of
violations by Cedar/Valley with respect to the class; (iii) the
trial court did not abuse its discretion in finding Worley and
Hamry to be adequate representatives for the class; (iv) common
questions of law and facts relating to the rest and meal breaks
shared by the class members are dominant and stem from a common
nucleus of operative facts; and (v) the trial court did not abuse
its discretion in finding that the highly discretionary superiority
requirement was met.
Cedar/Valley argues that the class definition must be amended
because it is open-ended. The Class Representatives argue that
Cedar/Valley waived this claim because they are raising it for the
first time on appeal.
The Court of Appeals agrees with the Class Representatives. The
issue does not affect a constitutional right because class
certification falls under the civil court rules and the issues are
not constitutional in nature. Therefore, because Cedar/Valley
failed to raise the issue below and fails to show a manifest error
affecting a constitutional right, the Court of Appeals declines to
review Cedar/Valley's claim raised for the first time on appeal.
B. Class Representatives' Cross-Appeal
The Class Representatives argue that the trial court failed to
explain how typicality is lacking for the overtime, off-the-clock,
and willful withholding of wages claim. They also argue that the
trial court abused its discretion by addressing the merits of the
class claims at the certification stage.
The Court of Appeals agrees. It holds that the trial court failed
to articulate the evidence it reviewed or provide adequate findings
to support its denial of class certification for the overtime,
off-the-clock, and willful violation claims. Accordingly, it
reverses the denial of class certification for the overtime,
off-the-clock, and willful withholding of wages claims and remands
to the trial court for further proceedings consistent with its
opinion.
As for the Class Representatives' claim that the trial court
"accepted" Cedar/Valley's declarations, the Class Representatives
do not explain how the trial court "accepted" Cedar/Valley's
declarations. The trial court mentions the declarations in its
analysis of the commonality requirement, stating, "Cedar/Valley
presented evidence from 62 class members," but the trial court did
not state that it "accepted" the declarations. Further, the trial
court did not discuss the 62 declarations in analyzing any of the
other CR 23 requirements. The Class Representatives' challenge that
the trial court erred by accepting Cedar/Valley's declarations
fails.
IV. Conclusion
The Court of Appeals holds that the trial court did not abuse its
discretion in granting class certification for the rest and meal
breaks claim and the class definition does not need to be amended.
However, it court failed to provide adequate factual findings for
the typicality requirement in denying Class Representatives'
overtime, off-the-clock, and willful withholding of wages claims.
Thus, the Court of Appeals affirms the class certification of the
rest and meal breaks claim, reverses the denial of class
certification for the overtime, off-the-clock, and willful
withholding of wages claims based on inadequate factual findings,
and remands to the trial court to resolve the inadequate factual
findings on typicality for the overtime, off-the-clock, and willful
withholding of wages claims.
A majority of the panel, having determined that the Opinion will
not be printed in the Washington Appellate Reports, but will be
filed for public record in accordance with RCW 2.06.040, it is so
ordered.
A full-text copy of the Court's June 14, 2022 Opinion is available
at https://tinyurl.com/2p8dhuzu from Leagle.com.
Curtis J. Chambers -- cchambers@insleebest.com -- Inslee, Best,
Doezie & Ryder, P.S., 10900 Ne 4th St Ste 1500, Bellevue, WA,
98004-8345, Richard August Bersin -- rbersin@insleebest.com --
Inslee Best Doezie & Ryder, PS, 10900 Ne 4th St Ste 1500, Bellevue,
WA, 98004-8345, Mark S Leen, Inslee Best Doezie & Ryder PS, 10900
Ne 4th St Ste 1500, Bellevue, WA, 98004-8345, Aleksander Richard
Schilbach, Lane Powell PC, Po Box 91302, Seattle, WA, 98111-9402,
Counsel for the Petitioner(s).
Gregory Alan Wolk -- websiteinquiry@rekhiwolk.com -- Rekhi & Wolk,
P.S., 529 Warren Ave N, Seattle, WA, 98109-4527 Daniel Cairns --
contact@vashonlawfirm.com -- Vashon Law Firm PLLC, 13401 Vashon Hwy
Sw, Vashon, WA, 98070-3305, Hardeep S Rekhi, Rekhi & Wolk, P.S.,
529 Warren Ave N Ste 201, Seattle, WA, 98109-4527, Jaime M.
Heimerl, Jackson Lewis P.C., 520 Pike St Ste 2300, Seattle, WA,
98101-4099 Counsel for the Respondent/Cross-Appellant.
CELSIUS NETWORK: Faces Suit Over Unfair Business Practices
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Brian Quarmby, writing for Coin Telegraph, reports that just two
weeks after appearing in an ask me anything (AMA) with Celsius
founder Alex Mashinsky, crypto Youtuber Ben Armstrong has announced
he intends to file a class-action lawsuit against the lending
platform and its chief executive.
Armstrong made legal threats via Twitter on June 15 and has since
provided more detail in multiple threads. His issue is centered on
being unable to pay down loans with existing funds on the platform,
and instead, having to deposit new funds to pay the loans off:
"[Our account rep] told us we had enough money in our account to
pay off a loan. But we can't use money in our account. We HAVE TO
SEND CELSIUS MORE MONEY TO PAY IT OFF."
"Imagine an insolvent company that you can't withdraw your money
from ASKING YOU TO SEND THEM MORE MONEY," he added.
Armstrong stated that he is currently working through the process
of getting all "disclosures, documents, loan details, etc" put
together while speaking to attorneys to explore the best ways to go
about the class action. Co-plaintiffs have yet to be added as
Armstrong hasn't "officially began moving."
BitBoy Crypto is the second most subscribed crypto YouTube account
with roughly 1.45 million subscribers and primarily provides
commentary on market news/events. The channel is only behind Coin
Bureau and its 2.07 million subscribers. BitBoy Crypto has plenty
of detractors, too, some of whom allege that he has been paid to
promote dubious crypto assets in the past.
Armstrong's sentiments toward Celsius have swung wildly from just
two weeks ago when he was featured on the ask me anything (AMA)
session with Mashinsky on Celsius' YouTube channel.
"And today I'm the victim. Kicking myself for wondering how I let
this get so bad and so far," he said.
Celsius is battling either insolvency or it's experiencing severe
liquidity troubles as a result of the crypto market plunge. The
firm paused withdrawals on June 13, and also reportedly shifted
around $320 million worth of assets to pay down loans and avoid
liquidation on decentralized finance (DeFi) platforms such as
Aave.
One issue to a potential lawsuit, however, is if Celsius files for
bankruptcy because it will trigger a provision called "automatic
stay," which would prevent creditors from pursuing collection
activity against the firm.
Celsius has reportedly onboarded restructuring lawyers from Akin
Gump Strauss Hauer & Feld to find potential solutions for its
financial troubles. However, Armstrong claims that these types of
lawyers "specialize in MOSTLY preparing companies for bankruptcy."
"Even if Celsius does file bankruptcy, we have discovered some
potential workarounds to still do a class action lawsuit (not
effected by bankruptcy). Unfortunately I have to keep that one
close to the vest for now," he said.
In terms of recouping funds from Celsius, there does at least
appear to be a potential option for users with less than $25,000 on
the platform to obtain their assets in the immediate future. Joshua
Browder, founder of robot lawyer DoNotPay, tweeted a step-by-step
strategy on June 15 on how users might be able to get funds back:
"As of right now, these exchanges have not yet filed for bankruptcy
protection. Therefore, they are subject to small claims court
judgements. Small claims court cases typically take 1-2 months. As
long as this drags on longer than that, this strategy will work."
2. To file a small claims lawsuit, the first step is to send a
demand letter.
The demand letter should say 1) how much you are owed 2) why you
think you are owed the money.
For Celsius specifically, you should mail it (return receipt
requested) to:
— Joshua Browder (@jbrowder1) June 15, 2022 [GN]
CHIPOTLE SERVICES: Intervention Denial Appeal in Turley Suit Tossed
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The Court of Appeals of California for the First District, Division
Four, dismisses Josh Barber's appeal from an order denying his
request to intervene in the case, TANIKA TURLEY, Plaintiff and
Respondent v. CHIPOTLE SERVICES, LLC, Defendant and Respondent;
JOSH BARBER, Intervener and Appellant, Case No. A162513 (Cal.
App.).
I. Introduction
Mr. Barber appeals an order denying his request to intervene in the
action in which Turley settled, on behalf of a class of nonexempt
employees, various causes of action for violations of the Labor
Code, as well as a related cause of action under the Private
Attorneys General Act of 2004 (PAGA) (Lab. Code, Section 2698 et
seq.), against Chipotle. Barber had filed a similar putative class
action against Chipotle on behalf of nonexempt managerial
employees. Turley and Chipotle argue, among other things, that the
appeal is moot in light of the finality of the judgment entered in
this action and the distribution and acceptance of all settlement
funds by the state and class members.
II. Background
In March 2015, Turley, a former nonexempt employee of Chipotle,
filed a class action complaint against Chipotle in San Francisco
County Superior Court on behalf of a putative class of all
nonexempt California employees. As amended in July 2015, the
complaint in the action alleged seven causes of action: (1) failure
to make timely payment of wages (Sections 201-203); (2) failure to
provide compliant wage statements (Section 226, subd. (a)); (3)
failure to provide proper response to document request (Section
226, subds. (b), (c) & (f)); (4) failure to provide proper rest
breaks (Section 226.7); (5) failure to provide proper meal breaks
(Section 226.7); (6) disgorgement of profits and injunction under
the unfair competition law (Bus. & Prof. Code, Section 17200 et
seq.); and (7) a PAGA claim for civil penalties.
In July 2016, Barber, a former nonexempt managerial employee of
Chipotle, filed a class action complaint against Chipotle in Orange
County on behalf of a putative class of non-exempt managerial
employees in California. As amended, Barber's complaint alleged
nine causes of action: (1) failure to pay all regular and overtime
wages (Sections 510, 1194, 1198); (2) failure to pay minimum wages
(Sections 1194, 1194.2, 1197, 1197.1); (3) failure to provide meal
periods (Sections 226.7, 512); (4) failure to provide rest periods
(Section 226.7); (5) failure to provide accurate wage statements
(Sections 226, 1174-1175); (6) failure to pay all wages due upon
ending of employment (Sections 201-203); (7) failure to reimburse
work expenses (Section 2802); (8) violation of the unfair
competition law (Bus. & Prof. Code, Section 17200 et seq.); and (9)
civil penalties under PAGA.
In November 2018, the court in the Turley action certified a class
with respect to a single cause of action. The class was defined to
include all individuals who were hired by Chipotle before Aug. 1,
2014, and thereafter issued wage statements for services performed
at any time from Oct. 2, 2014, to March 29, 2015.
After mediation in October 2019, an agreement to settle the action
was submitted to the court for approval. The agreement defined the
settlement class to include "all current and former non-exempt
employees of Chipotle that worked in California at any time between
Oct. 1, 2014 and the earlier of March 1, 2020 or preliminary
approval."
The class was broken into two separate sub-classes: the "Wage
Statement Class" composed of approximately 7,000 "current and
former nonexempt employees of Chipotle, who were hired before Aug.
1, 2014 and who worked in California at any time during the Class
Period"; and (2) an additional "Omnibus Class" consisting of
approximately 70,000 more class members who were not part of the
Wage Statement Class. Both proposed classes included nonexempt,
managerial employees.
As part of the settlement agreement, Chipotle and Turley stipulated
to the filing of a second amended complaint which, among other
things, added causes of action for failure to pay proper overtime
(Sections 510, 1194, 1198), failure to provide proper minimum wage
(Sections 1194, 1194.2, 1197, 1197.1), and failure to reimburse
necessary expenses (Section 2802).
Under the proposed settlement agreement, in exchange for a release
of all claims by members of both the Wage Statement Class and the
Omnibus Class, Chipotle agreed to pay approximately $3 million in
cash and food vouchers, with $1.75 million going to the Wage
Statement Class, up to $800,000 in food vouchers or cash to the
Omnibus Class members (who would each receive either a $12 Chipotle
meal voucher or $6 in cash), and the balance for attorney fees and
expenses, claims administration, service awards not to exceed
$10,000 each for Turley and another class representative, and a
$10,000 PAGA payment to the State of California.
In February 2020, Barber filed an application to intervene in the
action. The court denied the motion, noting that Barber, as a
member of the Wage Statement Class, could adequately protect his
interests by opting out or objecting to the settlement.
In March and July 2020, the court twice denied motions for
preliminary approval of the settlement. In its March order, the
court questioned, among other things, whether one subclass was
being "unfairly benefitted" at the expense of the other subclass.
It also questioned whether the named plaintiff was an adequate
representative for the omnibus class because her $10,000
enhancement payment far exceeded that of the 70,000 employees who
would receive either $6 cash payment or a $12 meal voucher. In its
July order, the court reiterated its concerns regarding the
treatment of the omnibus class.
In September 2020, Turley filed a third motion for preliminary
approval of a revised settlement agreement. The revised agreement
eliminated from the scope of the complaint and the settlement the
claims of the Omnibus Class. The agreement released only the claims
of the roughly 7,000 members of the Wage Statement Class. The
revised settlement agreement also excluded from the Wage Statement
Class anyone "who had a pending arbitration or lawsuit against
defendant as of August 1, 2020." As a result, Barber was excluded
from the revised settlement class because of his pending lawsuit.
Under the revised settlement agreement, the $1.75 million gross
settlement amount would be used to pay attorney fees in an amount
not to exceed 33.33 percent ($583,333), recoverable costs not to
exceed $25,000, settlement administration fees not to exceed
$50,000, a PAGA payment to the state for $50,000, a service award
to Turley not to exceed $2,500, and a "net settlement amount" of
just over $1 million for payment of claims to the class members.
In October 2020, the court conditionally certified the settlement
class and granted preliminary approval of the revised settlement
agreement.
In January 2021, Barber filed a second application for intervention
accompanied by proposed objections to the revised settlement
agreement. On February 16, the trial court denied Barber's motion,
finding that Barber did not have an interest in the litigation that
supports intervention. Barber timely filed a notice of appeal from
the order denying his application to intervene.
Thereafter, the court approved the settlement and entered judgment.
Barber filed a motion to vacate the judgment, challenging the
adequacy of Turley to represent the class and the fairness of the
settlement. After the motion was denied, Barber timely filed a
notice of appeal from the denial of his motion to vacate.
Mr. Barber's appeals were consolidated for briefing and decision.
In his opening brief, Barber has advised that he is no longer
pursuing his appeal of the denial of his motion to vacate. His
request for dismissal of that appeal was granted and the appeal
dismissed.
III. Discussion
The judgment entered in the case is now final. No party to the
settlement has appealed the judgment or challenged the order
approving the settlement and the settlement proceeds have been
distributed. There are no further proceedings or approvals for
which the court has reserved jurisdiction. By relinquishing his
challenge to the denial of his motion to vacate, Barber has
foregone any challenge to the judgment or to the order approving
the settlement.
Contrary to Barber's suggestion, the Court of Appeals holds that
his appeal from the order denying his motion to intervene did not
affect the finality of the judgment. Because the judgment is now
final, the Court of Appeals has no authority to set it aside or to
order the beneficiaries of the settlement to return whatever
proceeds they may have received. It has long been the rule that
"where the judgment in a cause, rendered in the trial court, has
become final, an appeal from an order denying intervention in such
cause will be dismissed, as a reversal of such order would be of no
avail."
To the extent some cases have concluded that denial of a motion for
intervention is not rendered moot by a subsequently entered
judgment, those cases are distinguishable. In both In re Veterans'
Industries, Inc. (1970) 8 Cal.App.3d 902 and Linder v. Vogue
Investments, Inc. (1966) 239 Cal.App.2d 338, although the time for
appeal of the judgment had passed, the courts nonetheless retained
the ability to provide the intervenor some effective relief.
In In re Veterans' Industries, Inc., the judgment required that
certain assets be placed in a blocked account and it reserved
jurisdiction for the trial court to make further orders to
implement and supplement the judgment pending outcome of appeal. In
Linder, the time within which a party could move to set aside a
default judgment had not lapsed, so that appellant, if permitted to
intervene, could make such a motion. In the present case, however,
at this point there is no effective relief that can be provided
even if it was error to deny intervention.
IV. Disposition
Accordingly, the Court of Appeals dismisses the appeal.
A full-text copy of the Court's June 14, 2022 Opinion is available
at https://tinyurl.com/2p8sadjc from Leagle.com.
CHURCH & DWIGHT: Sued Over Arm & Hammer Laundry Detergent Claims
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Top Class Actions reports that Church & Dwight Co. Inc.
misrepresents Arm & Hammer laundry detergent as being able to do
"2X more loads" than other versions of the detergent, according to
a false advertising class action lawsuit.
Plaintiff Yuzi Hong takes issue with the "2X more loads" claim on
144.5 oz containers of Arm & Hammer laundry detergent, which
suggests that the product can do more than twice as many loads of
laundry as the 67.5 oz version of the laundry detergent.
Arm & Hammer class action says consumers actually expect 3x the
original number of loads
Hong cites a formula that has been confirmed by a journalist who
reportedly studies how the public understands algebraic formulas.
While "twice as much" or "double the amount" would suggest twice as
much as the original amount, "2X more loads" suggests X plus 2X for
a total of 3X the original amount.
Therefore, Hong says consumers who see the "2X more loads" label on
the Arm & Hammer laundry detergent would expect it to do about
three times as many loads as the 67.5 oz product.
The 144.5 oz laundry detergent product reportedly states that it
can do 107 loads of laundry and the 67.5 oz product can do 50
loads. Hong says the "2X More Loads" label is false advertising
because 107 is not two times more than 50.
"To provide consumers with enough detergent to do "2X more" loads
than what the 67.5 oz version could do, the Product would need to
contain 202.5 oz, which is 58 oz. more than 144.5 oz," the Arm &
Hammer class action lawsuit asserts.
Hong says she would have paid less for the laundry detergent or
would not have purchased it at all, had she known the product was
misrepresented. She filed the Arm & Hammer class action lawsuit on
behalf of herself and a proposed class of consumers in New York and
several other states who purchased the allegedly mislabeled laundry
detergent.
Church & Dwight has previously faced an Arm & Hammer class action
lawsuit alleging its liquid laundry detergent containers were
underfilled and contained 14% empty space.
Hong is represented by Spencer Sheehan of Sheehan & Associates and
James Chung of the Law Office of James Chung.
The Arm & Hammer Class Action Lawsuit is Yuzi Hong v. Church &
Dwight Co. Inc., Case No. 1:22-cv-03459-ENV-RML, in the U.S.
District Court for the Eastern District of New York. [GN]
COASTAL CONCORD: Peralta Files Suit in Cal. Super. Ct.
------------------------------------------------------
A class action lawsuit has been filed against Coastal Concord
Logistics LLC, et al. The case is styled as Kristina Peralta, on
behalf of other members of the general public similarly situated v.
Coastal Concord Logistics LLC, Does 1-100, Case No.
34-2022-00320865-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., May
31, 2022).
The case type is stated as "Other Employment - Civil Unlimited."
Coastal Concord Logistics LLC is a licensed and bonded freight
shipping and trucking company running freight hauling business from
Elk Grove, California.[BN]
The Plaintiff is represented by:
Douglas Han, Esq.
JUSTICE LAW CORPORATION
751 N Fair Oaks Ave, Ste. 101
Pasadena, CA 91103-3069
Phone: (818) 230-7502
Fax: (818) 230-7259
Email: dhan@justicelawcorp.com
COMPLETE SOLIDS: Underpays Technicians, Copeland Suit Claims
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The case, REX COPELAND, on behalf of himself and on behalf of all
others similarly situated, Plaintiff v. COMPLETE SOLIDS CONTROL,
LLC, Defendant, Case No. 7:22-cv-00138 (W.D. Tex., June 13, 2022)
arises from the Defendant's alleged violations of the Fair Labor
Standards Act and the New Mexico Minimum Wage Act.
The Plaintiff has worked for the Defendant as a technician from
approximately November 2021 to May 2022.
The Plaintiff claims that although he and other similarly situated
technicians routinely worked more than 40 hours in a week for the
Defendant, the Defendant did not pay them proper overtime
compensation at the rate of one and one-half times their regular
rates of pay for all hours they worked in excess of 40 per
workweek. Instead, the Defendant paid them on an hourly rate basis
without overtime, says the suit.
Moreover, the Defendant paid the Plaintiff and other similarly
situated technicians for food, housing, and vehicle reimbursements
calculated on a daily basis. However, the Defendant did not include
the amount of these reimbursement payments when it calculated the
amount of overtime due to them, thereby underpaying the amount of
overtime it should have paid to them. In addition, the Defendant
has breached its contract with the Plaintiff when he was terminated
and did not pay him on the agreed rate of pay, added the suit.
On behalf of himself and all other similarly situated technicians,
the Plaintiff brings this complaint as a class and collective
action to recover all unpaid back wages and an equal amount of
liquidated damages. The Plaintiff also seeks unpaid benefits and
compensation, costs of this action, attorneys' fees, pre- and
post-judgment interest, and other relief as may be necessary and
appropriate.
Complete Solids Control, LLC provides solid removal services. [BN]
The Plaintiff is represented by:
Beatriz-Sosa Morris, Esq.
SOSA-MORRIS NEUMAN, PLLC
5612 Chaucer Drive
Houston, TX 77005
Tel: (281) 885-8844
Fax: (281) 885-8813
E-mail: BSosaMorris@smnlawfirm.com
CONOPCO INC: Court Dismisses Bernstein's First Amended Complaint
----------------------------------------------------------------
In the case, HEATHER BERNSTEIN, individually and on behalf of all
others similarly situated, Plaintiff v. CONOPCO, INC., Defendant,
Civil No. 3:21-cv-10160-KAR (D. Mass.), Magistrate Judge Katherine
A. Robertson of the U.S. District Court for the District of
Massachusetts grants the Defendant's motion to dismiss the
Plaintiff's first amended class action complaint.
I. Introduction
Plaintiff Bernstein, individually and on behalf of all others
similarly situated, brings the action against Defendant Conopco,
alleging that the labeling of the Defendant's Breyers Delights
Vanilla Bean Ice Cream was materially misleading. The Plaintiff
asserts three causes of action on behalf of the putative class:
unfair and deceptive acts and practices in violation of Mass. Gen.
Laws ch. 93A, Section 2 and 9 (Count I); untrue and misleading
advertising in violation of Mass. Gen. Laws ch. 266, Section 91
(Count II); and unjust enrichment (Count III).
Presently before the court is the Defendant's motion to dismiss the
Plaintiff's first amended class action complaint pursuant to Fed.
R. Civ. P. 12(b)(6) for failure to state a claim. The parties have
consented to the Court's jurisdiction.
II. Background
The Plaintiff is a citizen of Massachusetts who purchased Breyers
Delights Vanilla Bean Ice Cream in Massachusetts. The Product is
labeled with representations that include the words "Vanilla Bean"
and images of a flowering vanilla plant and a flowering vanilla
bean plant's bean pod. The label does not use any qualifying words,
such as "flavor" or "flavored" after the words "Vanilla Bean."
The Plaintiff contends, on behalf of herself and the putative
class, that the Product's labeling is misleading because it leads a
reasonable consumer to expect that the Product would contain at
least some vanilla beans, not as an exclusive ingredient but as one
of its characterizing ingredients contributing to its
characterizing vanilla flavor, when, in fact, the Product does not
contain any vanilla beans as an ingredient. Instead, the Product
contains "natural flavor" as the ingredient that imparts the
characterizing vanilla flavor; this "natural flavor" is identified
in small print on the Product's ingredient list located on the
label on the backside of the Product.
The Plaintiff alleges that the "deception flows from the fact that
the Product does not disclose, on the Product's front label, that
the Product is a flavored product that does not contain vanilla as
an ingredient in the form of vanilla beans." She concedes that some
oil, protein, essence, or other extraction of the vanilla bean may
have been used to create the Product's natural flavor but maintains
that those isolated compounds may not taste like vanilla and would
have to be combined with other extractions from other plants or
animals to create a flavoring substance that tastes like vanilla.
According to the Plaintiff, the labeling is misleading in violation
of federal labeling laws, which Massachusetts has expressly
adopted. She maintains that she would have paid less for the
Product or would not have purchased the Product if she had known at
the time of purchase that it did not contain vanilla beans or
enough vanilla beans to independently characterize the Product.
III. Discussion
The Plaintiff claims that the Defendant committed unfair or
deceptive acts and practices in violation of Mass. Gen. Laws ch.
93A, Sections 2 and 9. "To plausibly state a Chapter 93A claim
premised on a deceptive act, the plaintiff must allege (1) a
deceptive act or practice on the part of the seller; (2) an injury
or loss suffered by the consumer; and (3) a causal connection
between the seller's deceptive act or practice and the consumer's
injury." "An act or practice is deceptive if it 'has the capacity
to mislead consumers, acting reasonably under the circumstances, to
act differently from the way they otherwise would have acted (i.e.,
to entice a reasonable consumer to purchase the product).'"
Naturally, the Plaintiff's First Amended Class Action Complaint
alleges that the Product label is deceptive, but "such a claim is a
'legal conclusion that is not deemed true even on a motion to
dismiss." Thus, Judge Robertson must examine the complaint to
determine whether the Plaintiff has plausibly alleged that the
Product label is deceptive.
She finds that the Plaintiff's 93A claim is subject to dismissal.
The claim of deception is premised on the notion that the product
does not contain vanilla bean but that is not plausibly alleged in
the complaint. Indeed, the Plaintiff expressly concedes that "some
oil, protein, essence, or other extract of the vanilla bean may
have been used to create the Product's natural flavor." It is
immaterial whether the vanilla bean is "in solid or liquid extract
form." The extract of a vanilla bean is a form of vanilla bean. "A
claim that a product is misleading because it does not contain
vanilla bean, must plausibly state that it does not contain vanilla
bean, and without such a plausible claim the Plaintiff's allegation
of deception must fail."
Thus, the Plaintiff has not alleged an outright falsehood, but
rather premises her claim of deception on the "amount and purpose
of the ingredient," specifically positing that the oil, protein,
essence, or other extraction of the vanilla bean "may not taste
like vanilla" and would have to be combined with extractions from
other plants and animals to create the vanilla flavor of the
product. This theory of liability is unconvincing. First, it is
based only on conjecture that the vanilla bean extract may not
taste like vanilla and may have to be supplemented. Second, there
is no claim on the product's packaging that vanilla bean is the
predominant source of the vanilla flavor. The fact that the Product
in the case is labeled "Vanilla Bean," as opposed to simply
"Vanilla," does not alter this conclusion, Judge Richardson holds.
The Defendant raises the additional ground for dismissal that the
Plaintiff's Chapter 93A claim is preempted, either expressly or
impliedly. The parties agree that the Plaintiff's claim must thread
a "narrow gap" to avoid express or implied preemption. "The
plaintiff must be suing for conduct that violates the FDCA (or else
his claim will be expressly preempted), but the plaintiff must not
be suing because the conduct violates the FDCA (such a claim would
be impliedly preempted)." In other words, the Plaintiff's
allegations must state a claim both for a violation of state law
and for a violation of the FDCA. Because she has determined that
the Plaintiff has not stated a claim for a violation of Chapter
93A, Judge Robertson need not reach the question of whether the
Product label violates the FDCA, as the Plaintiff contends.
The Plaintiff's Mass. Gen. Laws ch. 266, Section 91 and unjust
enrichment claims fare no better than her Chapter 93A claim.
Pursuant to Mass. Gen. Laws ch. 266, Section 91, it is unlawful for
any person to publish within the Commonwealth an advertisement
which "contains any assertion, representation, or statement of fact
which is untrue, deceptive or misleading, and which such person
knew, or might on reasonable investigation have ascertained to be
untrue, deceptive or misleading." Because the Plaintiff fails to
plausibly allege that the label of the Product is untrue,
deceptive, or misleading, the Plaintiff's Chapter 266 claim fails
for the same reasons as her Chapter 93A claim. "The viability of a
Chapter 93A claim is irrelevant as the 'mere availability' of a
legal remedy bars a claim to unjust enrichment."
IV. Conclusion
For the stated reasons, Judge Robertson grants the Defendant's
motion to dismiss.
A full-text copy of the Court's June 15, 2022 Memorandum & Order is
available at https://tinyurl.com/ynjtbs7f from Leagle.com.
CORNELL UNIVERSITY: Class Cert. Bid Must be Filed by Sept. 30
-------------------------------------------------------------
In the class action lawsuit captioned as Haynie v. Cornell
University, Case No. 3:20-cv-00467 (N.D.N.Y.), the Hon. Judge
Miroslav Lovric entered an order resetting the deadlines and
schedules as follows:
(1) The Plaintiffs Expert Disclosures July 29, 2022
are due:
(2) The Defendant Expert Disclosure Sept. 16, 2022
is due:
(3) Class Certification Motion Sept. 30, 2022
to be filed by:
(4) Rebuttal Expert Disclosures Oct. 21, 2022
are due:
(5) All Discovery (including merit, Nov. 4, 2022
class, all depositions, etc.)
shall be completed by:
(6) Dispositive Motions shall be Dec. 16, 2022
filed by:
These deadlines are final, says Magistrate Judge Lovric.
The nature of suit states diversity-breach of contract.
Cornell University is a private research university that provides
an exceptional education for undergraduates and graduate and
professional students.[CC]
COVETRUS INC: Juan Monteverde Discloes Securities Class Action
--------------------------------------------------------------
Juan Monteverde, founder and managing partner of the class action
firm Monteverde & Associates PC (the "M&A Class Action Firm"), a
national securities firm rated Top 50 in the 2018-2021 ISS
Securities Class Action Services Report and headquartered at the
Empire State Building in New York City, is investigating Covetrus,
Inc. (CVET), relating to its proposed acquisition by funds
affiliated with TPG Capital and Clayton, Dubilier & Rice. Under the
terms of the agreement, CVET shareholders will receive $21.00 in
cash per share they own. Click here for more information:
http://monteverdelaw.com/case/covetrus-inc.It is free and there is
no cost or obligation to you.
About Monteverde & Associates
We are a national class action securities litigation law firm that
has recovered millions of dollars and is committed to protecting
shareholders from corporate wrongdoing. We were listed in the Top
50 in the 2018-2021 ISS Securities Class Action Services Report.
Our lawyers have significant experience litigating Mergers &
Acquisitions and Securities Class Actions. Mr. Monteverde is
recognized by Super Lawyers as a Rising Star in Securities
Litigation in 2013, 2017-2019, an award given to less than 2.5% of
attorneys in a particular field. He has also been selected by
Martindale-Hubbell as a 2017-2021 Top Rated Lawyer. Our firm's
recent successes include changing the law in a significant victory
that lowered the standard of liability under Section 14(e) of the
Exchange Act in the Ninth Circuit. Thereafter, our firm
successfully preserved this victory by obtaining dismissal of a
writ of certiorari as improvidently granted at the United States
Supreme Court. Emulex Corp. v. Varjabedian, 139 S. Ct. 1407 (2019).
Also, in 2019 we recovered or secured six cash common funds for
shareholders in mergers & acquisitions class action cases.
If you own common stock in CVET and wish to obtain additional
information and protect your investments free of charge, please
visit our website or contact Juan E. Monteverde, Esq. either via
e-mail at jmonteverde@monteverdelaw.com or by telephone at (212)
971-1341. [GN]
CREDIT CONTROL: Coleman FDCPA Suit Removed to M.D. Florida
----------------------------------------------------------
The case styled as Kayleigh Coleman, on behalf of herself and all
others similarly situated v. Credit Control, LLC, UHG I LLC, United
Holding Group, LLC, Case No. 22-001860-CI was removed from the
Pinellas County, Missouri, to the U.S. District Court for the
Middle District of Florida on May 31, 2022.
The District Court Clerk assigned Case No. 8:22-cv-01251-WFJ-TGW to
the proceeding.
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Credit Control, LLC -- https://www.credit-control.com/ -- is a
nationally licensed provider of customized, performance-driven
receivables management services that was founded in 1989.[BN]
The Plaintiff is represented by:
Jason Tenenbaum, Esq.
TENENBAUM LAW GROUP, PLLC
1600 Ponce de Leon Blvd, 10th Floor, Suite 10th Floor
Coral Gables, FL 11530
Phone: (305) 402-9529
Fax: (516) 414-2869
Email: jason@jtnylaw.com
The Defendants are represented by:
Chelsey R. Pankratz, Esq.
MALONE FROST MARTIN PLLC
301 W. Bay Street, Suite 14147
Jacksonville, FL 32202
Phone: (214) 346-2630
Fax: (214) 346-2631
Email: cpankratz@mamlaw.com
CURALEAF INC: Williamson Sues Over Failure to Label CBS Drops
-------------------------------------------------------------
Ronald Williamson, individually, and on behalf of others similarly
situated v. CURALEAF, INC., Case No. 3:22-cv-00782-IM (D. Ore., May
30, 2022), is brought against the Defendant for their failure to
label, market, and advertise the Select CBD Drops as having any, or
any substantial amount of, tetrahydrocannabinol (THC).
On August 1, 2021, at the Sweet Relief dispensary in Tillamook,
Oregon, the Plaintiff purchased and later consumed Select CBD Drops
that were manufactured, labeled, distributed, marketed, advertised,
and sold by the Defendant in the regular course of its business.
The Defendant labeled, marketed, and advertised the Select CBD
Drops purchased by plaintiff and the putative class members as
containing cannabidiol (CBD), which does not produce intoxicating
effects. The Select CBD Drops purchased by the Plaintiff and the
putative class members were not labeled, marketed, and advertised
as having any, or any substantial amount of, tetrahydrocannabinol
(THC).
In reality, the Select CBD Drops purchased by the Plaintiff and the
putative class members contained substantial amounts of
tetrahydrocannabinol (THC), a psychoactive compound in cannabis
that produces intoxicating effects. In Oregon, products including
drops containing THC are not permitted to be sold to consumers
without a warning label disclosing the presence and amount of THC.
THC is not fit for unintentional human consumption, as it can
impair a person's ability to drive a motor vehicle and cause
unwanted anxiety, panic, and acute psychosis. The Defendant's
Select CBD drops purchased by the Plaintiff and the putative class
members was for personal, family, or household purposes, says the
complaint.
The Plaintiff is a 77-year-old citizen of the state of Oregon.
The Defendant is a citizen of the state of Delaware.[BN]
The Plaintiff is represented by:
Michael Fuller, Esq.
OLSENDAINES
US Bancorp Tower
111 SW 5th Ave., Suite 3150
Portland, Oregon 97204
Phone: 503-222-2000
Email: michael@underdoglawyer.com
- and -
Kelly D. Jones, Esq.
LAW OFFICE OF KELLY D. JONES
Phone: 503-847-4329
Email: kellydonovanjones@gmail.com
CUYAHOGA COUNTY, OH: Denial of Class Cert. in Tarrify Suit Affirmed
-------------------------------------------------------------------
In the case, TARRIFY PROPERTIES, LLC, individually and on behalf of
all others similarly situated, Plaintiff-Appellant v. CUYAHOGA
COUNTY, OHIO, Defendant-Appellee, Case No. 21-3801 (6th Cir.), the
U.S. Court of Appeals for the Sixth Circuit affirms the district
court's order denying the certification motion and deeming the
county tax appraisals inadmissible.
I. Introduction
At stake is whether the district court correctly refused to certify
a class of owners of foreclosed properties in Cuyahoga County,
Ohio, all of whom challenge Ohio's tax-foreclosure statute as a
taking under the federal and state constitutions. While the
claimants share a common legal theory--that the targeted Ohio law
does not permit them to capture equity in their properties after
the county transfers them to a land bank--they do not have a
cognizable common theory for measuring the value in each property
at the time of transfer.
II. Background
Tarrify Properties owned land once used as a Kentucky Fried Chicken
restaurant on 11600 Miles Avenue in Cleveland, Ohio. From 2015 to
2018, the property was vacant, and Tarrify did not pay its property
taxes. In 2018, the Cuyahoga County Auditor valued Tarrify's
property at $164,700. Premised on this valuation, the county
determined that Tarrify owed over $35,000 in taxes, fees, and
assessments. The county invoked the alternative tax-foreclosure
approach and launched a proceeding at the Board of Revision to
transfer title to the property to a land bank in August 2018.
In May 2019, the Board foreclosed the property. It ordered the
transfer of the property to the Cuyahoga County Land Reutilization
Corporation. After the 28-day redemption period ended, the county
transferred the property. Through each of these steps, Tarrify did
not appear at the Board's hearing, pay the outstanding taxes,
request a transfer to the court of common pleas, or contest the
foreclosure of its property.
In October 2019, Tarrify sued Cuyahoga County in federal court
under 42 U.S.C. Section 1983, claiming that the land transfer
violated the U.S. Constitution's Fifth and Fourteenth Amendment
prohibition on takings without just compensation and the Ohio
Constitution's takings clause. Tarrify moved to certify a class of
Cuyahoga County landowners who have purportedly suffered similar
injuries. At the same time, the parties filed dueling motions in
limine over whether county tax appraisals could be admitted as
evidence with respect to the fair market value of the properties.
The district court denied the certification motion and deemed the
county tax appraisals inadmissible. A panel of Sixth Circuit
permitted an interlocutory appeal of the district court's denial of
class certification.
III. Discussion
The Sixth Circuit holds that the district court did not abuse its
discretion in denying Tarrify's motion to certify the class. In its
motion to certify the class, Tarrify sought relief on behalf of
owners of tax-foreclosed properties in which "the total value of
that property exceeded the amount of the impositions on that
property at the time the transfer occurred."
The Sixth Circuit opines that the district court reasonably
rejected the class-certification motion given the individualized
nature of each inquiry into the fair market value of each property
at the time of transfer. Tarrify offers several potential ways to
sidestep this conclusion, none of which suffices.
First, the district court did not abuse its discretion in finding
that "myriad mini-trials" loomed over the nature of this proposed
class. In view of this conclusion, the Sixth Circuit need not
resolve whether the district court should have permitted the tax
valuations to be considered in resolving the class-certification
motion. Admissible or not, they do not show that the class should
have been certified.
Second, at issue is whether the prior tribunal actually "resolved
the issue" at play. It did not. The Board never made any findings
on the fair market value of the property in its tax foreclosure
order. Nor was it necessary to do so, as the Board may order
transfer of the property "regardless of whether the value of the
taxes, assessments, penalties, interest, and other charges due on
the parcel, and the costs of the action, exceed the fair market
value of the parcel." Not only was fair market value never
challenged before the Board, it was never at issue. Application of
the transfer statute does not require an inquiry into fair market
value.
Third, the Sixth Circuit holds that repetition of the key theme of
its appeal -- that tax valuations "either" "reflect the 'true
value' of the properties or they do not" -- does not make it so.
General valuations for tax purposes in six-year intervals do not
establish fair market value on the day of a transfer for every
property in the class—or even a meaningful number of them.
Finally, Tarrify also identifies three alternative measures that
might make classwide relief more palatable: (1) appointing a
special master to determine fair market value disputes, (2)
creating subclasses based on the extent that the tax appraisal
value exceeds tax impositions, and (3) conducting a new "mass
appraisal" for all properties at issue. But none of these proposals
cures the problem that this case will boil down to mini-trials over
each property's value upon transfer. The party seeking
certification bears the burden of showing compliance with Civil
Rule 23. Tarrify has not shown that the district court abused its
discretion in rejecting these or any other arguments.
IV. Conclusion
Based on the foregoing, the Sixth Circuit affirms.
A full-text copy of the Court's June 14, 2022 Opinion is available
at https://tinyurl.com/45fjd62u from Leagle.com.
ARGUED: Matthew C. De Re -- matt@attorneyzim.com -- ZIMMERMAN LAW
OFFICES, P.C., in Chicago, Illinois, for the Appellant.
Stephen W. Funk -- sfunk@ralaw.com -- ROETZEL & ANDRESS, LPA, in
Akron, Ohio, for the Appellee.
ON BRIEF: Marc E. Dann -- mdann@dannlaw.com -- DANN LAW, in
Lakewood, Ohio, Thomas A. Zimmerman Jr. -- tom@attorneyzim.com --
ZIMMERMAN LAW OFFICES, P.C., in Chicago, Illinois, for the
Appellant.
Stephen W. Funk, ROETZEL & ANDRESS, LPA, Akron, Ohio, for
Appellee.
Matthew P. Yourkvitch -- mpy@goydlaw.com -- YOURKVITCH & DIBO, LLC,
in Cleveland, Ohio, for Amici Curiae.
DEERE & CO: Farms Sues Over Agri Equipment Repairs Monopoly
-----------------------------------------------------------
COLVIN FARMS, individually and on behalf of all others similarly
situated, Plaintiff v. DEERE & CO. (d/b/a JOHN DEERE), Defendant,
Case No. 1:22-cv-00126-MW-GRJ (N.D. Fla., June 13, 2022) alleges
violation of the Sherman Act.
The Plaintiff alleges in the complaint the Defendant's
monopolization of the repair service market for John Deere
("Deere") brand agricultural equipment with onboard central
computers known as engine control units, or "ECUs."
In newer generations of its agricultural equipment, the Defendant
has deliberately monopolized the market for repair and maintenance
services of its agricultural equipment with ECUs ("Deere Repair
Services") by making crucial software and repair tools inaccessible
to farmers and independent repair shops. Furthermore, the
Defendant's network of highly-consolidated independent dealerships
(the "Dealerships") is not permitted through their agreements with
the Defendant to provide farmers or repair shops with access to the
same software and repair tools the Dealerships have, says the
suit.
As a result of shutting out farmers and independent repair shops
from accessing the necessary resources for repairs, the Defendant
and the Dealerships have cornered the Deere Repair Services Market
in the United States for Deere-branded agricultural equipment
controlled by ECUs and have derived supracompetitive profits from
the sale of repair and maintenance services, added the suit.
DEERE & COMPANY manufactures and distributes a range of
agricultural, construction, forestry, and commercial and consumer
equipment. The Company supplies replacement parts for its own
products and for those of other manufacturers. Deere also provides
product and parts financing services. [BN]
The Plaintiff is represented by:
Paul S. Rothstein, Esq.
626 N.E. First Street
Gainesville, FL 32601
Telephone: (352) 376-7650
Facsimile: (352) 374-7133
Email: psr@rothsteinforjustice.com
DEL TACO: Harris Files Suit in Cal. Super. Ct.
----------------------------------------------
A class action lawsuit has been filed against Del Taco LLC, et al.
The case is styled as Jennifer Harris, on behalf of herself and all
others similarly situated, and on behalf of the general public v.
Del Taco LLC, Does 1-10, Case No. 34-2022-00320766-CU-OE-GDS (Cal.
Super. Ct., Sacramento Cty., May 31, 2022).
The case type is stated as "Other Employment - Civil Unlimited."
Del Taco -- https://deltaco.com/ -- specializes in offering tacos,
burritos, quesadillas and nachos.[BN]
The Plaintiff is represented by:
Roman Otkupman, Esq.
OTKUPMAN LAW FIRM, ALC
28632 Roadside Dr, Ste 203
Agoura Hills, CA 91301-6015
Phone: (818) 293-5623
Fax: (888) 850-1310
Email: roman@OLFLA.com
DELAWARE: District Court Dismisses Jarvis v. Warden May of JTVCC
----------------------------------------------------------------
Judge Maryellen Noreika of the U.S. District Court for the District
of Delaware dismisses the case, MICHAEL JARVIS, Plaintiff v. WARDEN
ROBERT MAY, et al., Defendants, C.A. No. 22-094 (VAC) (D. Del.).
I. Background
Plaintiff Jarvis, an inmate at James T. Vaughn Correctional Center
("JTVCC") in Smyrna, Delaware, commenced the action on Jan. 24,
2022, pursuant to 42 U.S.C. Section 1983. The Plaintiff appears pro
se and has been granted leave to proceed in forma pauperis. He also
filed a motion to join class action suit.
The Plaintiff alleges that he complained to Defendants May,
Commissioner Claire DeMatteis, and Captain Bruce Burton that they
were disregarding CDC guidelines relating to COVID-19. The
Plaintiff has underlying health problems. He was admitted to the
hospital on April 28, 2020 and treated for COVID-19. He was
released on May 1, 2020.
The Plaintiff alleges that the Delaware Department of Correction
pressured the hospital for an early release. Upon his return to
JTVCC, the Plaintiff was housed in the infirmary and placed on
oxygen. He alleges that he never fully recovered and suffers from
brain fog, memory loss, and fatigue and that Centurion (the company
responsible for healthcare at JTVCC) and its administrator refused
to take his conditions seriously.
The Plaintiff submitted a grievance on Aug. 15, 2020, asking he be
seen by an outside ophthalmologist. The grievance was denied due to
pandemic restrictions, a decision that was upheld on appeal. The
Plaintiff alleges that Centurion and its administrator refused to
treat him due to COVID restrictions.
The Plaintiff seeks proper treatment and punitive damages
II. Discussion
To state a claim based on the failure to provide medical treatment,
a prisoner must allege facts indicating that prison officials were
deliberately indifferent to his serious medical needs. "A medical
need is serious if it is one that has been diagnosed by a physician
as requiring treatment or one that is so obvious that a lay person
would easily recognize the necessity for a doctor's attention."
Deliberate indifference has been found "where the prison official
(1) knows of a prisoner's need for medical treatment but
intentionally refuses to provide it; (2) delays necessary medical
treatment based on a non-medical reason; or (3) prevents a prisoner
from receiving needed or recommended medical treatment."
Allegations of medical malpractice and mere disagreement regarding
proper medical treatment are insufficient to establish a
constitutional violation.
The Plaintiff alleges in a conclusory manner that the Defendants
were deliberately indifferent in adhering to CDC COVID guidelines.
He also alleges, however, that once he contracted COVID, he was
provided medical care. Although he also alleges that he did not
receive treatment for toxoplasmosis, the exhibits reflect this was
due to the COVID restrictions.
Judge Noreika says, the Plaintiff received medical treatment once
he contracted COVID and was advised that due to COVID restrictions
inmates could not see an outside ophthalmologist. Notably, prison
officials shouldered no constitutional duty to "eliminate entirely
the Plaintiff's risk of contracting COVID-19." And, once he
contracted COVID, the Plaintiff was provided medical care.
Moreover, while the Plaintiff may wish to see an outside
ophthalmologist, disagreement with medical care does not rise to
the level of a constitutional claim.
Hence, the Plaintiff's claims are legally frivolous and will be
dismissed. Judge Noreika finds amendment futile.
III. Conclusion
For the foregoing reasons, Judge Noreika (1) denies as moot the
Plaintiff's motion to join class action, and (2) dismisses the
Complaint pursuant to 28 U.S.C. Section 1915(e)(2)(B)(i) and
Section 1915A(b)(1). Amendment is futile. An appropriate Order will
be entered.
A full-text copy of the Court's June 14, 2022 Memorandum Opinion is
available at https://tinyurl.com/2u8bck8a from Leagle.com.
Michael Jarvis, James T. Vaughn Correctional Center, Smyrna,
Delaware, Pro Se Plaintiff.
DENTONS DAVIS: Fails to Timely Provide COBRA Notice, Schriner Says
------------------------------------------------------------------
TIFFANY M. SCHRINER, individually and on behalf of all others
similarly situated v. DENTONS DAVIS BROWN PC, Case No.
4:22-cv-00192-SMR-HCA (S.D. Iowa, June 14, 2022) is a class action
complaint against Dentons Davis for violations of the Employee
Retirement Income Security Act of 1974 ("ERISA"), as amended by the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"),
by failing to timely provide her and similarly situated persons
with a COBRA notice.
The complaint alleges that the failure to provide a timely COBRA
notice misled Plaintiff and similarly situated persons and caused
Plaintiff and those similarly situated economic injuries in the
form of lost health insurance and unpaid medical bills, as well as
informational injuries.
The Defendant is the plan sponsor and/or plan administrator of the
Davis, Brown, Koehn, Shors and Roberts, P.C. Group Medical Plan and
any successor plan (the "Plan").
The Defendant has repeatedly violated ERISA by failing to timely
provide participants and beneficiaries in the Plan with adequate
notice, as prescribed by COBRA, of their right to continue their
health coverage upon the occurrence of a "qualifying event" as
defined by the statute, says the suit.
The Plaintiff voluntarily resigned from her employment with
Defendant and her last day of work was May 6, 2022. During the
course of her employment, she received employer-sponsored health
insurance benefits through Blue Cross Blue Shield. Although more
than 30 days has passed since her separation of employment,
Defendant has never provided Plaintiff a COBRA notice. Moreover,
Plaintiff was never provided information explaining how to enroll
in COBRA, despite the expiration of her employer-sponsored health
insurance coverage, the suit added.
Ms. Schriner, a resident of Earlham, Iowa, was employed by the
Defendant as a paralegal in Defendant’s offices in Des Moines,
Iowa, from May 14, 2018 until her resignation on May 6, 2022.
Dentons Davis is a professional corporation that is engaged in the
practice of law.[BN]
The Plaintiff is represented by:
J. Barton Goplerud, Esq.
Brian O. Marty, Esq.
SHINDLER, ANDERSON, GOPLERUD & WEESE, P.C.
5015 Grand Ridge Drive, Suite 100
West Des Moines, IA 50265
Telephone: (515) 223-4567
Facsimile: (515) 223-8887
E-mail: goplerud@sagwlaw.com
marty@sagwlaw.com
- and -
Eric Lechtzin, Esq.
EDELSON LECHTZIN LLP
411 S. State Street, Suite N-300
Newtown, PA 18940
Telephone: (215) 867-2399
Facsimile: (267) 685-0676
E-mail: elechtzin@edelson-law.com
DENTSPLY SIRONA: Gross Law Firm Reminds of August 1 Deadline
------------------------------------------------------------
The Gross Law Firm issues the following notice to shareholders of
Dentsply Sirona Inc.
Shareholders who purchased shares of XRAY during the class period
listed are encouraged to contact the firm regarding possible lead
plaintiff appointment. Appointment as lead plaintiff is not
required to partake in any recovery.
CONTACT US HERE:
https://securitiesclasslaw.com/securities/dentsply-sirona-inc-loss-submission-form/?id=28548&from=4
CLASS PERIOD: This lawsuit is on behalf of all persons or entities
that purchased Dentsply's common stock between June 9, 2021, and
May 9, 2022.
ALLEGATIONS: According to the filed complaint, defendants
orchestrated a scheme to inflate Dentsply's revenue and earnings by
manipulating the Company's accounting for a distributor rebate
program so that senior executives would be eligible for significant
cash and stock-based incentive compensation. In order to facilitate
this scheme, Dentsply and its executives made numerous false and
misleading statements to investors during the class period. As a
result of defendants' misrepresentations, Dentsply's common stock
traded at artificially inflated prices during the class period.
DEADLINE: August 1, 2022 Shareholders should not delay in
registering for this class action. Register your information here:
https://securitiesclasslaw.com/securities/dentsply-sirona-inc-loss-submission-form/?id=28548&from=4
NEXT STEPS FOR SHAREHOLDERS: Once you register as a shareholder who
purchased shares of XRAY during the timeframe listed above, you
will be enrolled in a portfolio monitoring software to provide you
with status updates throughout the lifecycle of the case. The
deadline to seek to be a lead plaintiff is August 1, 2022. There is
no cost or obligation to you to participate in this case.
WHY GROSS LAW FIRM? The Gross Law Firm is nationally recognized
class action law firm, and our mission is to protect the rights of
all investors who have suffered as a result of deceit, fraud, and
illegal business practices. The Gross Law Firm is committed to
ensuring that companies adhere to responsible business practices
and engage in good corporate citizenship. The firm seeks recovery
on behalf of investors who incurred losses when false and/or
misleading statements or the omission of material information by a
company lead to artificial inflation of the company's stock.
Attorney advertising. Prior results do not guarantee similar
outcomes.
CONTACT:
The Gross Law Firm
15 West 38th Street, 12th floor
New York, NY, 10018
Email: dg@securitiesclasslaw.com
Phone: (646) 453-8903 [GN]
DIGITAL TURBINE: Bernstein Liebhard Reminds of August 5 Deadline
----------------------------------------------------------------
Bernstein Liebhard LLP, a nationally acclaimed investor rights law
firm, reminds investors of the deadline to file a lead plaintiff
motion in a securities class action lawsuit that has been filed on
behalf of investors who purchased or acquired the securities of
Digital Turbine, Inc. ("Digital Turbine" or the "Company") (NASDAQ:
APPS) between August 9, 2021 and May 17, 2022, inclusive (the
"Class Period"). The lawsuit was filed in the United States
District Court for the Western District of Texas and alleges
violations of the Securities Exchange Act of 1934.
Digital Turbine is a software company that delivers products to
assist third parties in monetizing through the utilization of
mobile advertising. The Company completed the acquisitions of
AdColony Holdings AS ("AdColony") and Fyber N.V. ("Fyber") on April
29 and May 25, 2021, respectively.
Plaintiff alleges that Defendants made materially false and
misleading statements throughout the Class Period. Specifically,
Defendants failed to disclose to investors that: (1) the Company's
recent acquisitions, AdColony and Fyber, act as agents in certain
of their respective product lines; (2) as a result, revenues for
those product lines must be reported net of license fees and
revenue share, rather than on a gross basis; (3) the Company's
internal control over financial reporting as to revenue recognition
was deficient; and (4) as a result of the foregoing, the Company's
net revenues were overstated throughout fiscal 2022.
On May 17, 2022, Digital Turbine issued a press release revealing
that it will "restate its financial statements for the interim
periods ended June 30, 2021, September 30, 2021, and December 31,
2021, following a review of the presentation of revenue net of
license fees and revenue share for the Company's recently acquired
businesses."
On this news, the Company's shares fell $1.93 to close at $25.28
per share on May 18, 2022.
If you wish to serve as lead plaintiff, you must move the Court no
later than August 5, 2022. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. Your ability to share in any recovery doesn't require
that you serve as lead plaintiff. If you choose to take no action,
you may remain an absent class member.
If you purchased APPS securities, and/or would like to discuss your
legal rights and options please visit Digital Turbine, Inc.
Shareholder Class Action Lawsuit or contact Peter Allocco at (212)
951-2030 or pallocco@bernlieb.com.
Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion
for its clients. In addition to representing individual investors,
the Firm has been retained by some of the largest public and
private pension funds in the country to monitor their assets and
pursue litigation on their behalf. As a result of its success
litigating hundreds of lawsuits and class actions, the Firm has
been named to The National Law Journal's "Plaintiffs' Hot List"
thirteen times and listed in The Legal 500 for ten consecutive
years.
Contact Information:
Peter Allocco
Bernstein Liebhard LLP
https://www.bernlieb.com
(212) 951-2030
pallocco@bernlieb.com [GN]
DIGITAL TURBINE: Gross Law Firm Reminds of August 5 Deadline
------------------------------------------------------------
The Gross Law Firm issues the following notice to shareholders of
Digital Turbine, Inc.
Shareholders who purchased shares of APPS during the class period
listed are encouraged to contact the firm regarding possible lead
plaintiff appointment. Appointment as lead plaintiff is not
required to partake in any recovery.
CONTACT US HERE:
https://securitiesclasslaw.com/securities/digital-turbine-inc-loss-submission-form/?id=28550&from=4
CLASS PERIOD: August 9, 2021 to May 17, 2022
ALLEGATIONS: The complaint alleges that during the class period,
Defendants issued materially false and/or misleading statements
and/or failed to disclose that: (1) the Company's recent
acquisitions, AdColony and Fyber, act as agents in certain of their
respective product lines; (2) as a result, revenues for those
product lines must be reported net of license fees and revenue
share, rather than on a gross basis; (3) the Company's internal
control over financial reporting as to revenue recognition was
deficient; and (4) as a result of the foregoing, the Company's net
revenues was overstated throughout fiscal 2022; and (5) as a result
of the foregoing, defendants' positive statements about the
Company's business, operations, and prospects were materially
misleading and/or lacked a reasonable basis.
DEADLINE: August 5, 2022 Shareholders should not delay in
registering for this class action. Register your information here:
https://securitiesclasslaw.com/securities/digital-turbine-inc-loss-submission-form/?id=28550&from=4
NEXT STEPS FOR SHAREHOLDERS: Once you register as a shareholder who
purchased shares of APPS during the timeframe listed above, you
will be enrolled in a portfolio monitoring software to provide you
with status updates throughout the lifecycle of the case. The
deadline to seek to be a lead plaintiff is August 5, 2022. There is
no cost or obligation to you to participate in this case.
WHY GROSS LAW FIRM? The Gross Law Firm is nationally recognized
class action law firm, and our mission is to protect the rights of
all investors who have suffered as a result of deceit, fraud, and
illegal business practices. The Gross Law Firm is committed to
ensuring that companies adhere to responsible business practices
and engage in good corporate citizenship. The firm seeks recovery
on behalf of investors who incurred losses when false and/or
misleading statements or the omission of material information by a
company lead to artificial inflation of the company's stock.
Attorney advertising. Prior results do not guarantee similar
outcomes.
CONTACT:
The Gross Law Firm
15 West 38th Street, 12th floor
New York, NY, 10018
Email: dg@securitiesclasslaw.com
Phone: (646) 453-8903 [GN]
DIGITAL TURBINE: Klein Law Firm Reminds of August 5 Deadline
------------------------------------------------------------
The Klein Law Firm on June 14 disclosed that a class action
complaint has been filed on behalf of shareholders of Digital
Turbine, Inc. (NASDAQ: APPS) alleging that the Company violated
federal securities laws.
Class Period: August 9, 2021 to May 17, 2022
Lead Plaintiff Deadline: August 5, 2022
No obligation or cost to you.
Learn more about your recoverable losses in APPS:
https://www.kleinstocklaw.com/pslra-1/digital-turbine-inc-loss-submission-form?id=28447&from=4
Digital Turbine, Inc. NEWS - APPS NEWS
CLASS ACTION CASE DETAILS: The filed complaint alleges that Digital
Turbine, Inc. made materially false and/or misleading statements
and/or failed to disclose that: (1) the Company's recent
acquisitions, AdColony and Fyber, act as agents in certain of their
respective product lines; (2) as a result, revenues for those
product lines must be reported net of license fees and revenue
share, rather than on a gross basis; (3) the Company's internal
control over financial reporting as to revenue recognition was
deficient; and (4) as a result of the foregoing, the Company's net
revenues was overstated throughout fiscal 2022; and (5) as a result
of the foregoing, defendants' positive statements about the
Company's business, operations, and prospects were materially
misleading and/or lacked a reasonable basis.
WHAT THIS MEANS TO YOU AS A SHAREHOLDER: If you have suffered a
loss in Digital Turbine you have until August 5, 2022 to petition
the court for lead plaintiff status. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff.
NO COST TO YOU: If you purchased Digital Turbine securities during
the relevant period, you may be entitled to compensation without
payment of any out-of-pocket fees.
HOW TO PROTECT YOUR FINANCIAL INTERESTS: For additional information
about the APPS lawsuit, please contact J. Klein, Esq. by telephone
at 212-616-4899 or click this link:
https://www.kleinstocklaw.com/pslra-1/digital-turbine-inc-loss-submission-form?id=28447&from=4.
ABOUT KLEIN LAW FIRM
J. Klein, Esq. represents investors and participates in securities
litigations involving financial fraud throughout the nation. The
Klein Law Firm is a boutique litigation firm with experience in a
wide range of areas including securities law, corporate finance and
commercial litigation. Since 2011, our experienced attorneys have
achieved superior results for our clients with a personalized
focus. Attorney advertising. Prior results do not guarantee similar
outcomes.
CONTACT:
J. Klein, Esq.
Empire State Building
350 Fifth Avenue
59th Floor
New York, NY 10118
jk@kleinstocklaw.com
Telephone: (212) 616-4899
www.kleinstocklaw.com [GN]
DOTDASH MEREDITH: People.com Registered Users File Class Action
---------------------------------------------------------------
Jessy Edwards, writing for Top Class Actions, reports that
registered users of People.com who have a Facebook account are
suing the publisher's parent company, saying their video-viewing
records were shared with Facebook without their consent.
Plaintiff William J. Martin filed the class action complaint
against Dotdash Meredith June 7 in a New York federal court,
alleging violations of the Video Privacy Protection Act (VPPA), the
California Civil Code, and the consumer protection statutes of
several states.
"Dotdash Meredith's invasive disclosures violate the VPPA, which
explicitly prohibits the disclosure of video-viewing records to a
third party without the express written consent of the consumer of
the video," the lawsuit states.
Martin alleges that, nearly one million times a day, Dotdash
Meredith serves video content on its People.com website to its
website visitors.
However, unbeknownst to the viewers of these videos, Dotdash
Meredith allegedly has a hidden agenda: tracking and recording each
viewer's video-consumption habits, and sharing that information
with Facebook, and potentially other third parties.
"Every time a Registered User views video content on People.com,
Dotdash Meredith causes the identity of the viewer and the titles
of the videos viewed to be shared with Facebook," Martin alleges.
Millions of privacy violations likely, lawsuit states
Martin says People.com records 29 million video views every month,
and therefore it is likely it commits hundreds of millions of
privacy violations annually by sharing video-viewing records
without the express written consent of the viewer.
He says the company carries out the alleged violations through a
code called the Facebook Pixel which tracks and records viewers'
behavior on the websites, including behavior related to video
consumption.
"This code collects video-watching history and discloses it to
Facebook, and ties that information directly to the real-world
identity of the viewer by disclosing the viewer's unique Facebook
ID in conjunction with the title of each video the viewer watches,
contained in the website url," he alleges.
Martin is seeking certification of the class action, damages of
$2,500 per violation of the VPPA and $500 per violation of the
California Civil Code, an injunction, fees, costs and a jury
trial.
Earlier this month, Gannett Company was hit with a similar class
action lawsuit alleging it violates data privacy law by knowingly
disclosing the data of its USA Today digital subscribers to third
parties, including Meta Platforms.
The plaintiff is represented by Brett D. Katz of Ellis George
Cipollone O'brien Annaguey LLP.
The People Facebook Class Action Lawsuit is William J. Martin v.
Meredith Corporation et al., Case No. 1:22-cv-04776 in the U.S.
District Court Southern District of New York [GN]
DSC ELITE FINANCIAL: Sloatman Files TCPA Suit in C.D. California
----------------------------------------------------------------
A class action lawsuit has been filed against DSC Elite Financial
Services, Inc., et al. The case is styled as Lala Sloatman,
individually and on behalf of all others similarly situated v. DSC
Elite Financial Services, Inc., Does 1 through 10, inclsuive, Case
No. 2:22-cv-04095 (C.D. Cal., June 15, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Elite Financial Services is committed to helping people live debt
free nationwide.[BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
LAW OFFICES OF TODD M. FRIEDMAN PC
21031 Ventura Boulevard, Suite 340
Woodland Hills, CA 91364
Phone: (323) 306-4234
Fax: (866) 633-0228
Email: tfriedman@toddflaw.com
DUKE REALTY: Juan Monteverde Investigates Prologis Acquisition
--------------------------------------------------------------
Juan Monteverde, founder and managing partner of the class action
firm Monteverde & Associates PC (the "M&A Class Action Firm"), a
national securities firm rated Top 50 in the 2018-2021 ISS
Securities Class Action Services Report and headquartered at the
Empire State Building in New York City, is investigating Duke
Realty Corp. (DRE), relating to its proposed acquisition by
Prologis, Inc. Under the terms of the agreement, DRE shareholders
will receive 0.475 shares of Prologis common stock per share they
own. Click here for more information:
https://www.monteverdelaw.com/case/duke-realty-corp. It is free and
there is no cost or obligation to you.
About Monteverde & Associates PC
Monteverde & Associates PC is a national class action securities
litigation law firm that has recovered millions of dollars and is
committed to protecting shareholders from corporate wrongdoing. It
is listed in the Top 50 in the 2018-2021 ISS Securities Class
Action Services Report. Its lawyers have significant experience
litigating Mergers & Acquisitions and Securities Class Actions. Mr.
Monteverde is recognized by Super Lawyers as a Rising Star in
Securities Litigation in 2013, 2017-2019, an award given to less
than 2.5% of attorneys in a particular field. He has also been
selected by Martindale-Hubbell as a 2017-2021 Top Rated Lawyer. Our
firm's recent successes include changing the law in a significant
victory that lowered the standard of liability under Section 14(e)
of the Exchange Act in the Ninth Circuit. Thereafter, our firm
successfully preserved this victory by obtaining dismissal of a
writ of certiorari as improvidently granted at the United States
Supreme Court. Emulex Corp. v. Varjabedian, 139 S. Ct. 1407 (2019).
Also, in 2019 we recovered or secured six cash common funds for
shareholders in mergers & acquisitions class action cases.
If you own common stock in DRE and wish to obtain additional
information and protect your investments free of charge, please
visit our website or contact Juan E. Monteverde, Esq. either via
e-mail at jmonteverde@monteverdelaw.com or by telephone at (212)
971-1341.
Contact:
Juan E. Monteverde, Esq.
MONTEVERDE & ASSOCIATES PC
The Empire State Building
350 Fifth Ave. Suite 4405
New York, NY 10118
United States of America
jmonteverde@monteverdelaw.com
Tel: (212) 971-1341 [GN]
EASTPOINT RECOVERY: Ergas Wins Bid for Review of Summary Judgment
-----------------------------------------------------------------
In the case, MATATIAOU ERGAS, Individually and on behalf of all
Others Similarly Situated, Plaintiff v. EASTPOINT RECOVERY GROUP,
INC., Defendant, Case No. 20-CV-333S (W.D.N.Y.), Judge William M.
Skretny of the U.S. District Court for the Western District of New
York grants the Plaintiff's Motion for Reconsideration.
I. Introduction
The lawsuit is a Fair Debt Collection Practice Act ("FDCPA") class
action where the Plaintiff alleged that the Defendant sent him an
inappropriate dunning letter. The Plaintiff claimed that he did not
recognize the alleged creditor or the Defendant as collection
agency. Because of the alleged misidentification of the creditor,
the Plaintiff alleged that the dunning letter violated provisions
of the FDCPA. He also claimed to represent a class of similarly
situated New York consumers.
Before the Court is the Plaintiff's Motion for Reconsideration of
the grant of the Defendant's Motion for Summary Judgment seeking
dismissal of the case because the Plaintiff lacked standing to
sue.
The Defendant moved for summary judgment dismissing the action for
the Plaintiff's lack of standing. The Plaintiff cross-moved for
summary judgment on the merits of his claims. The Court granted the
Defendant's Motion, denied the Plaintiff's Motion, and dismissed
the case. There, the Court held that "absent standing, the
Plaintiff cannot move for judgment in his favor (including arguing
the merits of his claims under the FDCPA)," dismissing his summary
judgment Motion.
The Plaintiff now moves for reconsideration pursuant to Federal
Rule of Civil Procedure 59(e). Responses to this Motion were due by
June 2, 2022, and reply on June 9, 2022.
II. Background
On Aug. 4, 2019, the Defendant and United Holdings Group ("UHG")
wrote to the Plaintiff about his debt with Pentagon Federal Credit
Union (or "PenFed"), naming UHG as the "current creditor." The
Plaintiff claims this letter misidentified his creditor and thus
violated provisions of the FDCPA. The Amended Complaint also
alleged a class action.
Defendant Eastpoint answered the Amended Complaint and the Court
Clerk entered default judgment against UHG. The Defendant and the
Plaintiff later cross moved for summary judgment. The Court found
that the Plaintiff failed to allege an injury-in-fact for standing.
The Defendant's Motion was granted but the Plaintiff's Motion was
denied.
The Plaintiff now moves for reconsideration, arguing that once his
lack of standing was found, the Court lacked subject matter
jurisdiction to decide the "merits" of both sides' Motions and the
Court erred in ruling on the Motions in the absence of
jurisdiction.
The Defendant counters that the grant of summary judgment was
proper despite finding the lack of standing.
III. Discussion
A motion for reconsideration is appropriate where the court has
overlooked controlling decisions or factual matters that were put
before it on the underlying motion. In other words, a party seeking
reconsideration may not advance new facts, issues or arguments not
previously presented to the Court. Amendment of a Judgment will be
denied if it would serve no useful purpose.
Judge Skretny finds that the Plaintiff is correct that if he lacked
Article III standing "a court has no subject matter jurisdiction to
hear his claim." "Because the standing issue goes to the Court's
subject matter jurisdiction, it can be raised sua sponte." Without
satisfying Article III standing, "a federal court has no subject
matter jurisdiction to hear the merits of a plaintiff's -- or, in
the instant case, the class Plaintiffs' -- claim: Without
jurisdiction a court cannot proceed at all in any cause.
Jurisdiction is power to declare the law, and when it ceases to
exist, the only function remaining to the court is that of
announcing the fact and dismissing the case.'"
The Defendant moved for summary judgment dismissing the action for
the Plaintiff's lack of standing. The Court granted the Defendant's
Motion and dismissed the case. Whatever so-called merits were
decided were the Plaintiff's standing, denying the Plaintiff's
Motion for Summary Judgment due to the lack of standing, and
abandonment of class certification. This Decision did not make
merits finding on the Fair Debt Collection Practices Act claims or
defenses, including whether a donation was a "debt" under 15 U.S.C.
Section 1692a(5), concluding that the matter of first impression
would not be decided in that Decision.
Once the Court found that the Plaintiff lacked standing, the Court
also lost subject matter jurisdiction. Thus, the Court could have
dismissed the case on its own, as the Plaintiff urges in moving for
reconsideration. The Plaintiff seeks reconsideration of the
decision on his Motion and the Defendant's Motion rather than
dismissal of the case for lack of standing and Article III subject
matter jurisdiction. The effect of the Plaintiff's desired Decision
remains the same: The case would be dismissed for the Plaintiff's
lack of standing and with that dismissal any pending Motions (and
the class allegations) are dismissed with the case. The only
difference is ruling on the Plaintiff's Motion which the Court
lacks jurisdiction to do absent the Plaintiff having standing to
sue.
Judge Skretny holds that granting the Plaintiff's Motion for
Reconsideration only changes the disposition of his Motion. He will
grant the Plaintiff's Motion for Reconsideration. The Decision and
Order of May 10, 2022 is modified and the case is dismissed for
lack of standing and subject matter jurisdiction. The parties'
Motions are terminated rather than ruled upon. The case remains
dismissed.
IV. Conclusion & Order
Judge Skretny concludes that the Plaintiff is correct that once the
lack of standing is found, the Court lacks jurisdiction over the
case. The Plaintiff's own Motion for Summary Judgment should not
have been decided once the lack of standing was established.
Therefore, the Plaintiff's Motion for Reconsideration is granted.
The case remains closed.
A full-text copy of the Court's June 14, 2022 Decision & Order is
available at https://tinyurl.com/yfxmhzpu from Leagle.com.
EDGEWELL PERSONAL: Leboeuf Files Suit in N.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Edgewell Personal
Care Company. The case is styled as Nancy Leboeuf, individually and
on behalf of all others similarly situated v. Edgewell Personal
Care Company, Edgewell Personal Care Brands, LLC, Edgewell Personal
Care, LLC, Case No. 1:22-cv-00642-MAD-DJS (N.D.N.Y., June 15,
2022).
The nature of suit is stated as Other Fraud.
The Edgewell Personal Care Company -- https://edgewell.com/ -- is
an American multinational consumer products company headquartered
in Shelton, Connecticut.[BN]
The Plaintiff is represented by:
Daniel A. Schlanger, Esq.
SCHLANGER LAW GROUP LLP
80 Broad Street, Suite 1301
New York, NY 10004
Phone: (212) 500-6114
Fax: (646) 612-7996
Email: dschlanger@consumerprotection.net
- and -
Jonas Palmer Mann, Esq.
WILSHIRE LAW FIRM, PLC
3055 Wilshire Blvd., 12th Floor
Los Angeles, CA 90010
Phone: (213) 381-9988
Email: jmann@wilshirelawfirm.com
ENERGY TRANSFER: Glancy Prongay Reminds of August 2 Deadline
------------------------------------------------------------
Glancy Prongay & Murray LLP ("GPM") reminds investors of the
upcoming August 2, 2022 deadline to file a lead plaintiff motion in
the class action filed on behalf of investors who purchased or
otherwise acquired Energy Transfer LP ("Energy Transfer" or the
"Company") (NYSE: ET) common stock between April 13, 2017 and
December 20, 2021, inclusive (the "Class Period").
If you suffered a loss on your Energy Transfer investments or would
like to inquire about potentially pursuing claims to recover your
loss under the federal securities laws, you can submit your contact
information at www.glancylaw.com/cases/energy-transfer-lp-1/. You
can also contact Charles H. Linehan, of GPM at 310-201-9150,
Toll-Free at 888-773-9224, or via email at
shareholders@glancylaw.com to learn more about your rights.
On August 8, 2019, Energy Transfer disclosed that in mid-2017, the
Federal Energy Regulatory Commission ("FERC") Enforcement Staff
initiated a non-public formal investigation "regarding allegations
that diesel fuel may have been included in the drilling mud at the
Tuscarawas River HDD [i.e., Horizontal Directional Drilling
Activities]."
On this news, Energy Transfer's stock fell $0.65, or 4.6%, over two
trading days to close at $13.38 per share on August 12, 2019,
thereby injuring investors.
Then, on December 16, 2021, FERC publicly issued to Energy Transfer
the Order To Show Cause and Notice of Proposed Penalty, directing
the Company to show cause why it should not be assessed a civil
penalty in the amount of $40 million. The order alleged that the
HDD crews intentionally included diesel fuel and other toxic
substances and unapproved additives in the drilling mud during its
HDDs under the Tuscarawas River.
On this news, Energy Transfer's stock fell $0.24, or 2.8%, over two
trading days to close at $8.25 per share on December 20, 2021,
thereby injuring investors further.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to investors
that: (1) Energy Transfer had inadequate internal controls and
procedures to prevent contractors from engaging in illegal conduct
with regards to drilling activities, and/or failed to properly
mitigate known issues related to such controls and procedures; (2)
Energy Transfer through its subsidiary Rover Pipeline, LLC hired
third-party contractor to conduct HDD for the Rover Pipeline
Project, whose conduct of adding illegal additives in the drilling
mud caused severe pollution near the Tuscarawas River when a large
inadvertent release took place on April 13, 2017; (3) Energy
Transfer continually downplayed its potential civil liabilities
when the FERC was actively investigating the Company's wrongdoing
related to the April 13 Release and consistently provided it with
updated information about FERC's findings on this matter; (4) these
issues were foreseeably likely to subject Energy Transfer to
increased governmental scrutiny and enforcement, as well as
increased reputational and financial harm, and would also
materially impact Energy Transfer's financial results; and (5) as a
result, Defendants' positive statements about the Company's
business, operations, and prospects were materially misleading
and/or lacked a reasonable basis at all relevant times.
If you purchased or otherwise acquired Energy Transfer common stock
during the Class Period, you may move the Court no later than
August 2, 2022 to request appointment as lead plaintiff in this
putative class action lawsuit. To be a member of the class action
you need not take any action at this time; you may retain counsel
of your choice or take no action and remain an absent member of the
class action. If you wish to learn more about this class action, or
if you have any questions concerning this announcement or your
rights or interests with respect to the pending class action
lawsuit, please contact Charles Linehan, Esquire, of GPM, 1925
Century Park East, Suite 2100, Los Angeles, California 90067 at
310-201-9150, Toll-Free at 888-773-9224, by email to
shareholders@glancylaw.com, or visit our website at
www.glancylaw.com. If you inquire by email please include your
mailing address, telephone number and number of shares purchased.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
Contacts:
Glancy Prongay & Murray LLP, Los Angeles
Charles Linehan, 310-201-9150 or 888-773-9224
shareholders@glancylaw.com
www.glancylaw.com [GN]
ENERGY TRANSFER: Klein Law Firm Reminds of August 2 Deadline
------------------------------------------------------------
The Klein Law Firm on June 14 disclosed that a class action
complaint has been filed on behalf of shareholders of Energy
Transfer LP (NYSE: ET) alleging that the Company violated federal
securities laws.
This lawsuit is on behalf of persons who purchased or otherwise
acquired common shares of Energy Transfer stock between April 13,
2017 and December 20, 2021, both dates inclusive.
Lead Plaintiff Deadline: August 2, 2022.
Learn more about your recoverable losses in ET:
https://www.kleinstocklaw.com/pslra-1/energy-transfer-lp-loss-submission-form-2?id=28446&from=4
Energy Transfer LP NEWS - ET NEWS
CLASS ACTION CASE DETAILS: The filed complaint alleges that Energy
Transfer LP made materially false and/or misleading statements
and/or failed to disclose that: (a) Energy Transfer had inadequate
internal controls and procedures to prevent contractors from
engaging in illegal conduct with regards to drilling activities,
and/or failed to properly mitigate known issues related to such
controls and procedures; (b) Energy Transfer, through its
subsidiary Rover Pipeline, LLC, hired a third-party contractor to
conduct Horizontal Directional Drilling Activities for the Rover
Pipeline Project, whose conduct of adding illegal additives in the
drilling mud caused severe pollution near the Tuscarawas River when
a large inadvertent release took place on April 13, 2017; (c)
Energy Transfer continually downplayed its potential civil
liabilities when the Federal Energy Regulatory Commission ("FERC")
was actively investigating the Energy Transfer's wrongdoing related
to the April 13 release and consistently provided it with updated
information about FERC's findings on this matter.
WHAT THIS MEANS TO YOU AS A SHAREHOLDER: If you have suffered a
loss in Energy Transfer you have until August 2, 2022 to petition
the court for lead plaintiff status. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff.
NO COST TO YOU: If you purchased Energy Transfer securities during
the relevant period, you may be entitled to compensation without
payment of any out-of-pocket fees.
HOW TO PROTECT YOUR FINANCIAL INTERESTS: For additional information
about the ET lawsuit, please contact J. Klein, Esq. by telephone at
212-616-4899 or click this link:
https://www.kleinstocklaw.com/pslra-1/energy-transfer-lp-loss-submission-form-2?id=28446&from=4.
ABOUT KLEIN LAW FIRM
J. Klein, Esq. represents investors and participates in securities
litigations involving financial fraud throughout the nation. The
Klein Law Firm is a boutique litigation firm with experience in a
wide range of areas including securities law, corporate finance and
commercial litigation. Since 2011, our experienced attorneys have
achieved superior results for our clients with a personalized
focus. Attorney advertising. Prior results do not guarantee similar
outcomes.
CONTACT:
J. Klein, Esq.
Empire State Building
350 Fifth Avenue
59th Floor
New York, NY 10118
jk@kleinstocklaw.com
Telephone: (212) 616-4899
www.kleinstocklaw.com [GN]
EVELO INC: Quezada Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Evelo Inc. The case
is styled as Jose Quezada, individually and on behalf of all others
similarly situated v. Evelo Inc., Case No. 1:22-cv-05028 (S.D.N.Y.,
June 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
EVELO -- https://evelo.com/ -- makes elegant yet powerful electric
bikes for recreation, commuting & exercise.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street, 24th Floor
New York, NY 11201
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
EXPERIAN INFORMATION: Garcia Sues Over Inaccurate Information
-------------------------------------------------------------
Nilda Garcia, individually and on behalf of all others similarly
situated v. Experian Information Solutions, LLC, TransUnion, LLC,
OneMain Financial Group, LLC a/k/a OneMain Holdings, Inc.; Case No.
2:22-cv-00912-TLN-AC (E.D. Cal., May 26, 2022), is brought against
the Defendants for their violation of the Fair Credit Reporting Act
by failing to follow reasonable procedures to assure maximum
possible accuracy of the information on Plaintiff's credit report.
On December 23, 2021, both Plaintiff and her husband were
hospitalized with Covid-19. The Plaintiff's husband went to the
ICU. Plaintiff was pregnant at the time and went to the high-risk
labor and deliver unit. Although not fully recovered and still
requiring oxygen, Plaintiff was released from the hospital on
January 4, 2022. Unfortunately, Plaintiff’s husband did not
recover. He passed away on January 19, 2022. His wife and unborn
child were all alone without his financial and emotional support.
Shortly thereafter, Plaintiff received a call from her OB-GYN. The
Plaintiff's doctor had received notice that Plaintiff was deceased.
This was the first time the Plaintiff realized she was being
reported as deceased. It appears that the Plaintiff was
accidentally marked deceased by the Social Security
Administration.
When the Plaintiff called the Social Security Administration (SSA)
to register for survivor benefits, the representative accidentally
put the Plaintiff's husband's deceased record on the Plaintiff's
file. The Plaintiff was mistakenly marked deceased. Within a week
of being incorrectly marked deceased, on February 1, 2022, the
Plaintiff was able to get it rectified. She was required to go
in-person to the SSA office with her ID and sign documents
confirming that she was not deceased and was very much alive. The
SSA mailed her confirmation of its mistake. The SSA provides the
Department of Commerce's National Technical Information Service
(NTIS) a public file of death information. NTIS distributes the
public file of death information, also known as the public Death
Master File (DMF), to other agencies and private organizations,
including credit reporting agencies. Plaintiff was on the DMF for a
week or less.
Subsequent to her removal therefrom, each Defendant failed to cross
check the DMF maintained by the SSA to verify whether the Plaintiff
was a part of the catalog of social security numbers that belong to
deceased individuals. Had each Bureau maintained reasonable
procedures they could have also realized that she is not deceased.
The Bureaus have been reporting this inaccurate information through
the issuance of false and inaccurate credit information and
consumer reports that it has disseminated to various persons and
credit grantors. In contrast with each Bureau, non-party Equifax
Information Services, LLC, was not incorrectly reporting Plaintiff
as deceased. The Plaintiff's Equifax credit report does not suffer
from the same infirmities as Experian and TransUnion. This further
demonstrates each the Defendant's culpability.
The Plaintiff notified Experian that she disputed the accuracy of
the information it was reporting on February 25, 2022, March 5,
2022, and April 21, 2022. The Plaintiff included the SSA letter
confirming its mistake in marking Plaintiff as deceased, with her
February Dispute. In each Dispute, Plaintiff explained that she was
not deceased. She explained why she had been marked deceased but
that the issue was already corrected. Despite the Dispute(s), the
Plaintiff was still being reported incorrectly as deceased by
Experian. Notwithstanding the Plaintiff's efforts, the Defendants
continue to publish and disseminate such inaccurate information to
other third parties, persons, entities and credit grantors. The
Defendants knew the information was inaccurate. These actions by
Defendants caused extensive damage to Plaintiff, says the
complaint.
The Plaintiff is a "consumer" and a resident of the State of
California, County of Sacramento.
Experian Information Solutions, LLC, is a consumer reporting
agency.[BN]
The Plaintiff is represented by:
Jonathan A. Stieglitz, ESQ.
THE LAW OFFICES OF JONATHAN A. STIEGLITZ
11845 W. Olympic Blvd., Suite 800
Los Angeles, CA 90064
Phone: (323) 979-2063
Facsimile: (323) 488-6748
Email: jonathan.a.stieglitz@gmail.com
EXPRESS LLC: Maddy Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Express, LLC. The
case is styled as Veronica Maddy, on behalf of herself and all
others similarly situated v. Express, LLC, Case No. 1:22-cv-04999
(S.D.N.Y., June 15, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Express LLC -- https://www.express.com/ -- owns and operates a
chain of apparel stores. The Company retails dresses, tops,
sweaters, blazers, jackets and coats, jeans, skirts, pants,
leggings, shorts, shoes, hosiery, jewelry, and accessories.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
FAMILY DOLLAR: Brown Suit Transferred to W.D. Tennessee
-------------------------------------------------------
The case styled as Kimberly Brown, individually and on behalf of
all others similarly situated v. Family Dollar Inc., Dollar Tree
Inc., Case No. 2:22-cv-00040 was transferred from the U.S. District
Court for the Eastern District of Arkansas, to the U.S. District
Court for the Western District of Tennessee on June 15, 2022.
The District Court Clerk assigned Case No. 2:22-cv-02374-SHL-tmp to
the proceeding.
The nature of suit is stated as Other Fraud for Declaratory
Judgement.
Family Dollar -- https://www.familydollar.com/ -- is an American
variety store chain.[BN]
The Plaintiff is represented by:
Gregory W. Aleshire, Esq.
ALESHIRE ROBB PC
2847 Ingram Mill Road, Suite A-102
Springfield, MO 65804
Phone: (417) 869-3737
Fax: (417) 836-5678
Email: galeshire@aleshirerobb.com
- and -
James D. Robertson, Esq.
Jerry D. Garner, Esq.
BARBER LAW FIRM PLLC
425 West Capitol Avenue, Suite 3400
Little Rock, AR 72201
Phone: (501) 372-6175
Fax: (501) 375-2802
Email: jrobertson@barberlawfirm.com
jgarner@barberlawfirm.com
The Defendants are represented by:
Katherine Church Campbell, Esq.
FRIDAY, ELDREDGE & CLARK, LLP
3550 South Pinnacle Hills Parkway, Suite 301
Rogers, AR 72758
Phone: (479) 695-6040
Email: kcampbell@fridayfirm.com
FARADAY FUTURE: Breaches of Fiduciary Duties, Yun Class Suit Says
-----------------------------------------------------------------
JASON BIN YUN v. FARADAY FUTURE INTELLIGENT ELECTRIC INC. F/K/A
PROPERTY SOLUTIONS ACQUISITION CORP., PROPERTY SOLUTIONS
ACQUISITION SPONSOR, LLC, JORDAN VOGEL, AARON FELDMAN, EDUARDO
ABUSH, DAVID AMSTERDAM, AVI SAVAR, CARSTEN BREITFELD, ZVI GLASMAN,
AND YUETING JIA, Case No. 2022-0510 (Del Ch., June 14, 2022) is
brought on behalf of the Plaintiff and all others similarly
situated asserting breach of fiduciary duty claims arising from the
Company's merger with FF Intelligent Mobility Global Holdings Ltd.
against: (a) Jordan Vogel, Aaron Feldman, Eduardo Abush, David
Amsterdam and Avi Savar, in their capacities as members of the
Company's board of directors; and (b) Jordan Vogel, Aaron Feldman
and Property Solutions Acquisition Sponsor, LLC in their capacities
as PSAC's controlling stockholders; and CarstenBreitfeld, Zvi
Glasman, and Yueting Jia, for aiding and abetting breaches of
fiduciary duties.
PSAC is a special purpose acquisition company, or "SPAC", organized
by Jordan Vogel and Aaron Feldman. PSAC was formed as a Delaware
corporation on February 11, 2020. In its initial registration
statement filed with the SEC, PSAC described itself as "a blank
check company formed for the purpose of entering into a merger,
share exchange, asset acquisition, stock purchase,
recapitalization, reorganization or other similar business
combination with one or more businesses or entities, which we refer
to as a 'target business.'" PSAC utilized a transactional structure
common among SPACs. Sponsor, which was formed by, and is owned and
controlled by the Founders, was compensated for its anticipated
efforts in the form of "Founder Shares" constituting 20% of PSAC's
equity purchased for a nominal price ($25,000). PSAC's other
directors were hand-picked by the Founders and given valuable
economic interests in Sponsor.
The rest of PSAC's securities ("units" consisting of 1 share of
common stock and 1 warrant), were sold to investors in an initial
public offering ("IPO") for $10 per unit and the investor capital
raised in the IPO was placed into a trust account. PSAC then had 21
months to consummate a qualifying business combination -- a
so-called "de-SPAC Acquisition." Once such a transaction was
identified, public stockholders were entitled to choose either to
(a) redeem their PSAC stock for their pro rata share of the funds
held in the trust account (approximately $10); or (2) to become an
investor in the post-combination entity, says the suit.
PSAC completed its IPO on July 24, 2020. Simultaneously, it
consummated a private placement of 535,000 units, or "private
units," at $10.00 per unit, approximately 435,000 of which units
were bought by Sponsor. As a result of the transactions conducted
in connection with the IPO, PSAC raised gross proceeds of
$229,775,680.
On January 28, 2021, PSAC and Legacy FF issued a joint press
release (filed with the SEC on Form 8-K) announcing that they had
entered into an agreement to effect a business combination pursuant
to which a subsidiary of PSAC -- PSAC Merger Sub, Ltd. -- would
merge with and into Legacy FF, with Legacy FF surviving as a wholly
owned subsidiary of PSAC (the "Merger"). After the Merger, PSAC
would be renamed Faraday Future Intelligent Electric Inc.
("Faraday").
The January 28, 2021 joint press release claimed that Legacy FF's
flagship model, the FF 91, had received over 14,000 reservations.
On April 5, 2021, PSAC filed a registration statement on Form S-4
with the SEC, including a proxy statement/consent solicitation
statement/prospectus (the "Registration Statement") , in which the
PSAC Individual Defendants solicited PSAC stockholder approval of
the Merger. Amendments to the Registration Statement were filed
with the SEC on Form S-4/A on June 1, 2022, June 21, 2022 and June
23, 2022. Each iteration of the Registration Statement explicitly
referred to the January 28, 2022 8-K and Press Release.
Shareholders of both companies approved the Merger, which closed on
July 21, 2021. The combined Company changed its name to Faraday
Future Intelligent Electric Inc. ("Faraday"). The Registration
Statement and other public statements issued in connection with the
Merger misrepresented and/or omitted material information
concerning Legacy FF. Because PSAC's public stockholders were not
fully informed of all material information about Legacy FF, they
exchanged their right to $10 per share -- held in a trust for their
benefit -- for an interest in Faraday, added the suit.
On October 7, 2021, J Capital Research ("J Capital") issued a
report alleging, inter alia, that Faraday was unlikely to ever sell
a car, that Faraday or Legacy FF had "reneged on promises to build
factories," was being sued by unpaid suppliers, and had failed to
disclose that certain assets in China had been frozen by courts.
Furthermore, the Report alleged that Faraday had misled investors
5by claiming it had received 14,000 deposits for vehicles,
revealing that 78% of the reservations were made by a single
undisclosed entity that was a likely affiliate of the Company. The
Report also alleged that former engineering executives did not
believe Faraday's vehicles were anywhere close to production,
despite Faraday's statements to the contrary.
On November 15, 2021, Faraday announced that it could not timely
file its quarterly report on Form 10-Q for the fiscal period ended
September 30, 2021. Faraday also announced that its Board of
Directors had formed a special committee of independent directors
to "review allegations of inaccurate disclosures."
On June 9, 2022, Faraday disclosed that (in addition to the ongoing
formal SEC investigation) it received a preliminary request for
information from the U.S. Department of Justice "in connection with
the matters that were the subject of the Special Committee
investigation."
Each of the PSAC Individual Defendants and the Sponsor breached
their fiduciary duties to Plaintiff and other public PSAC
stockholders by misrepresenting and failing to disclose material
information regarding Legacy FF while seeking stockholder approval
of the Merger and asking them to make a decision whether to redeem
their PSAC stock for a pro rata share of the trust account, or to
invest in post-Merger Faraday, the suit further asserts.
Plaintiff Yun, an adult resident of Upper Saddle River, New Jersey,
was a PSAC shareholder entitled to vote on the Merger who has
continuously held common stock at all times since the Merger.[BN]
The Plaintiff is represented by:
Bradford deLeeuw, Esq.
DE LEEUW LAW LLC
1301 Walnut Green Road
Wilmington, Delaware 19807
Telephone: (302) 274-2180
E-mail: brad@deleeuwlaw.com
- and -
Eric Lechtzin, Esq.
Marc H. Edelson, Esq.
EDELSON LECHTZIN LLP
411 South State Steet, Suite N-300
Newtown, PA 18940
Telephone: (215) 867-2399
Facsimile: (267) 685-0676
E-mail: elechtzin@edelson-law.com
medelson@edelson-law.com
- and -
Michael K. Yarnoff, Esq.
KEHOE LAW FIRM, P.C.
Two Penn Center Plaza
1500 JFK Boulevard, Suite 1020
Philadelphia, PA 19102
Telephone: (215) 792-6676
E-mail: myarnoff@kehoelawfirm.com
GEORGIA: Seeks to Continue Hearing on Summary Judgment
------------------------------------------------------
In the class action lawsuit captioned as BRANDON COBB, et al., v.
GEORGIA DEPARTMENT OF COMMUNITY SUPERVISION, et al., etc., Case No.
1:19-cv-03285-WMR (N.D. Ga.), the Defendant asks the Court to enter
an order continuing the hearing now set for 9:30 am, June 30, 2022,
on Defendants' pending Motion for Summary Judgment and Plaintiffs'
renewed Motion for Class Certification. Defendants ask the Court to
delay the hearing by no less than 30 days.
On April 20, 2022, the Court issued a notice of hearing by Zoom
Video Communications for June 30, 2022 on the pending substantive
motions. The Plaintiffs filed on June 16, 2022 a Motion for Leave
to Supplement Plaintiffs' Statement of Additional Material Facts.
Their original statement of additional material facts was filed
April 4, 2022.
Without a response from Defendants, the Court has now granted
Plaintiffs' motion to supplement. The Plaintiffs' new materials
consist of approximately 325 pages.
The Georgia Department of Community Supervision is an executive
branch agency of the U.S. state of Georgia. DCS is headquartered in
the James H "Sloppy" Floyd Veterans Memorial Building with
additional field offices throughout the state.
A copy of the Defendant's motion dated June 21, 2022 is available
from PacerMonitor.com at https://bit.ly/39MdtcJ at no extra
charge.[CC]
The Plaintiffs are represented by:
Sean J. Young, Esq.
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION OF GEORGIA, INC.
P.O. Box 77208
Atlanta, GA 30357
E-mail: SYoung@acluga.org
- and -
Claudia Center, Esq.
Susan Mizner, Esq.
Zoe Brennan-Krohn, Esq.
Brian L. Dimmick, Esq.
West Resendes, Esq.
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
DISABILITY RIGHTS PROGRAM
39 Drumm Street
San Francisco, CA 94111
E-mail: Zbrennan-krohn@aclu.org
SMizner@aclu.org
bdimmick@aclu.org
wresendes@aclu.org
- and -
Brittany Shrader, Esq.
NATIONAL ASSOCIATION OF THE
DEAF LAW AND ADVOCACY CENTER
8630 Fenton Street, Suite 820
Silver Spring, MD 20910
E-mail: brittany.shrader@nad.org
- and -
Ian Hoffman, Esq.
Stephanna F. Szotkowski, Esq.
Kathryn Geoffroy, Esq.
Tyler J. Fink, Esq.
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Ave, NW
Washington, DC 20001
E-mail: Ian.Hoffman@arnoldporter.com
Stephanna.Szotkowski@arnoldporter.com
Kathryn.Geoffroy@arnoldporter.com
Tyler.Fink@arnoldporter.com
- and -
Talila A. Lewis, Esq.
PO Box 1160
Washington, DC 20013
E-mail: talila.a.lewis@gmail.com
The Defendant is represented by:
Christopher M. Carr, Esq.
Beth Burton, Esq.
Tina M. Piper, Esq.
GEORGIA DEPARTMENT OF LAW
40 Capitol Square, S.W.
Atlanta, GA 30334-1300
Telephone: (404) 656-3355
Facsimile: (404) 463-8864
E-mail: tpiper@law.ga.gov
- and -
George M. Weaver, Esq.
HOLLBERG & WEAVER, LLP
6185 Mountain Brook Way
Sandy Springs, GA 30328
Telephone: (404) 760-1116
Facsimile: (404) 760-1136
E-mail: gweaver@hw-law.com
GOHEALTH LLC: Clough Sues Over Unsolicited Telemarketing Calls
--------------------------------------------------------------
ROBERT CLOUGH, II, individually and on behalf of a class of all
persons and entities similarly situated, Plaintiff v. GOHEALTH, LLC
and JOHN DOE CORPORATION, Defendants, Case No. 1:22-cv-03081 (N.D.
Ill., June 13, 2022) is a class action complaint brought against
the Defendants for its alleged abusive telephone marketing
practices in violations of the Telephone Consumer Protection Act.
In an attempt to promote its Medicare insurance products, the
Defendants sent multiple telemarketing calls to the Plaintiff's
cellular telephone number (603)-731-XXXX, which has been on the
National Do Not Call Registry since February 2008. The Defendants'
calls consistently started with a pause and a click, followed by a
live agent coming on the line, using a similar script offering help
with Medicare benefits. Allegedly, the Defendants has been using a
predicative dialer that is indicative of en masse calling.
According to the complaint, the Plaintiff and other similarly
situated individuals were harmed by the Defendants' unsolicited
telemarketing calls because it invaded their privacy. Thus, they
seek injunctive relief prohibiting the Defendants from making
telemarketing calls to numbers on the National Do Not Call
Registry, except for emergency purposes, in the future.
GoHealth, LLC markets and sells health insurance products and
services. [BN]
The Plaintiff is represented by:
Anthony I. Paronich, Esq.
PARONICH LAW, P.C.
350 Lincoln St., Suite 2400
Hingham, MA 02043
Tel: (508) 221-1510
E-mail: anthony@paronichlaw.com
- and –
Edward A. Broderick, Esq.
BRODERICK LAW, P.C.
176 Federal St., Fifth Floor
Boston, MA 02110
Tel: (617) 738-7080
E-mail: ted@broderick-law.com
GOOGLE LLC: Brown, et al., Seek to Certify Two Classes
------------------------------------------------------
In the class action lawsuit captioned as CHASOM BROWN, WILLIAM
BYATT, JEREMY DAVIS, CHRISTOPHER CASTILLO, and MONIQUE TRUJILLO
individually and on behalf of all other similarly situated, v.
GOOGLE LLC, Case No. 4:20-cv-03664-YGR (N.D. Cal.), the Plaintiffs
ask the Court to enter an order certifying two classes:
-- Class 1
"All Chrome browser users with a Google account who
accessed a non-Google website containing Google tracking or
advertising code using such browser and who were (a) in
"Incognito mode" on that browser and (b) were not logged
into their Google account on that browser, but whose
communications, including identifying information and
online browsing history, Google nevertheless intercepted,
received, or collected from June 1, 2016 through the
present."
-- Class 2
"All Safari, Edge, and Internet Explorer users with a
Google account who accessed a non-Google website containing
Google tracking or advertising code using such browser and
who were (a) in a "private browsing mode" on that browser
and (b) were not logged into their Google account on that
browser, but whose communications, including identifying
information and online browsing history, Google
nevertheless intercepted, received, or collected from June
1, 2016 through the present.
The Plaintiffs seek to certify nationwide classes for Counts I,
III, IV, V, VI, and VII of their Complaint and California-resident
only classes for Count II (CIPA).
The Plaintiffs further move for their appointment as class
representatives and to appoint David Boies and Mark C. Mao of Boies
Schiller Flexner LLP, Bill Carmody of Susman Godfrey LLP, and John
A. Yanchunis of Morgan & Morgan as co-lead class counsel.
Google LLC is an American multinational technology company that
focuses on artificial intelligence, search engine technology,
online advertising, cloud computing, computer software, quantum
computing, e-commerce, and consumer electronics.
A copy of the Plaintiffs' motion dated June 21, 2022 is available
from PacerMonitor.com at https://bit.ly/3n8rW5M at no extra
charge.[CC]
The Plaintiffs are represented by:
Mark C. Mao, Esq.
Beko Reblitz-Richardson, Esq.
Erika Nyborg-Burch, Esq.
BOIES SCHILLER FLEXNER LLP
44 Montgomery Street, 41 st Floor
San Francisco, CA 94104
Telephone: (415) 293 6858
Facsimile: (415) 999 9695
E-mail: mmao@bsfllp.com
brichardson@bsfllp.com
enyborg-burch@bsfllp.com
- and -
David Boies, Esq.
James W. Lee, Esq.
Rossana Baeza, Esq.
Alison Anderson, Esq.
BOIES SCHILLER FLEXNER LLP
333 Main Street
Armonk, NY 10504
Telephone: (914) 749-8200
E-mail: dboies@bsfllp.com
jlee@bsfllp.com
rbaeza@bsfllp.com
aanderson@bsfllp.com
- and -
Amanda Bonn, Esq.
Bill Christopher Carmody, Esq.
Shawn J. Rabin, Esq.
Steven Shepard, Esq.
Alexander P. Frawley, Esq.
SUSMAN GODFREY L.L.P.
1900 Avenue of the Stars, Suite 1400
Los Angeles, CA 90067
Telephone: (310) 789-3100
E-mail: abonn@susmangodfrey.com
bcarmody@susmangodfrey.com
srabin@susmangodfrey.com
sshepard@susmangodfrey.com
afrawley@susmangodfrey.com
- and -
John A. Yanchunis, Esq.
Ryan J. McGee, Esq.
Michael F. Ram, Esq.
MORGAN & MORGAN, P.A.
201 N Franklin Street, 7th Floor
Tampa, FL 33602
Telephone: (813) 223-5505
Facsimile: (813) 222-4736
E-mail: jyanchunis@forthepeople.com
rmcgee@forthepeople.com
mram@forthepeople.com
GOOGLE LLC: Judge Allows Privacy Class Action to Proceed
--------------------------------------------------------
Ryan Lovelace, writing for The Washington Times, reports that a
federal judge is allowing a class-action privacy lawsuit to proceed
against Google, denying the tech giant's effort to dismiss claims
that it invaded people's privacy.
U.S. District Judge Yvonne Gonzalez Rogers rejected Google's
request to dismiss the lawsuit's allegations of breach of contract,
privacy invasion and publication of private information.
The plaintiffs, who are Google account holders, alleged that Google
collected data from everyone using its services and then
distributed and sold the information for targeted advertising
through a real-time bidding (RTB) system.
Judge Gonzalez Rogers' order from the U.S. District Court for the
Northern District of California said the plaintiffs have the
standing to sue, and she wrote that the litigants successfully
demonstrated the bidding process was not sufficiently disclosed to
Google's users.
"Specifically, plaintiffs allege that Google sells sensitive
personal information such as plaintiff's IP address, geo-location
data, and web-browsing information, search terms, and sensitive
websites that plaintiffs visited relating to race, religion, sexual
orientation, and health," Judge Gonzalez Rogers wrote. "Google
argues that such information is routinely shared and thus cannot
support a reasonable expectation of privacy. Not so." [GN]
GOOGLE LLC: Must Face Class Action Over Users' Personal Information
-------------------------------------------------------------------
Natalie Hanson, writing for Courthouse News Service, reports that
Google largely failed on June 14 to dismiss a class action that
says the company is illegally selling users' personal information
in auctions for ad space.
U.S. District Judge Yvonne Gonzalez Rogers denied all but one of
Google's motions to dismiss claims it faces from a large group of
account holders. The customers accused the company of having
violated state and federal law by promising that it does not sell
account holders' personal information to third parties, while
repeatedly selling the data through real-time bidding auctions to
advertisers.
Google has faced class action lawsuits before over location sharing
without permission, although a judge has sided with the Silicon
Valley giant before when dismissing claims that the business
surreptitiously seized users' data.
The plaintiffs allege Google solicits participants to bid on
sending an ad to people, using data about each person in a bid
request provided to the auction. This includes data that identifies
people through device identifiers, geolocation and IP address and
highly detailed personal profile information about peoples'
interests, race, religion, sexual orientation and health.
Auction participants receive information about users and compete
for space to send advertisements, with the winning bidder paying
Google. Even participants who do not win or place a bid collect the
personal data. Google also allows "surveillance participants" who
have no interest in filling an ad space but participate in auctions
to get access to users' personal information. The plaintiffs argued
all of these practices earn revenue for Google and that the company
does not disclose the auction practice or obtain consent from
account holders.
Gonzalez Rogers granted dismissal of only one count against Google,
a breach of covenant claim that she found the plaintiffs had failed
to substantiate. The judge agreed that plaintiffs did not
adequately allege that the disclosure and sale of their personal
information was prompted by bad faith or that claims go beyond the
breach of contract claims.
But the judge denied all of Google's other reasons to dismiss the
case. She said the group sufficiently alleged injury due to the
company's practices and plausibly argued a breach of contract,
based on Google's sharing and selling of plaintiffs' personal
information as part of real time bidding. She also stated the
plaintiffs provided enough information to show that the company's
disclosure and sale of information to thousands of bidders without
users' prior knowledge or consent is sufficient.
The judge agreed with plaintiffs citing the language found in
Google's privacy policy, which states "we don't share information
that personally identifies you with advertisers" as well as a "How
Our Business Works" page which makes the promise that Google never
sells personal information.
Google also said no actual breach of the privacy policy can be
alleged because plaintiffs do not allege that Google shared any
information. But Gonzalez Rogers wrote "Not so," saying the
plaintiffs "have alleged enough facts to draw a reasonable
inference that their personal information had been shared by Google
by way of the RTB process." She added the information in the case
falls within the definition of personal information defined by
state law and Google's privacy policy.
Gonzalez Rogers also said the class action did successfully claim
that plaintiffs have a reasonable expectation of privacy. When
Google argued that such information is routinely shared, she
rejected their stance on two grounds.
"First, such information is personal information under California
law and parties generally maintain a reasonable expectation in
their personal information," Gonzalez Rogers wrote. She also cited
the Ninth Circuit's decision in Facebook Tracking that plaintiffs
adequately alleged a reasonable expectation of privacy when
Facebook allegedly collected and created "highly personalized
profiles from [plaintiffs'] sensitive browsing histories and
habits."
The judge also said the plaintiffs gave evidence that Google sold
and disclosed confidential information like their internet
communications, which fall within the definition of content
protected from being intercepted or disclosed under the Wiretap
Act.
"With respect to consent, Google repeats its argument that
plaintiffs were provided sufficient notice of the challenged
conduct and were told that they could opt out of personalized ads
but chose not to do so. Again, these arguments fail," the judge
wrote.
Google has 21 days to respond to the order. The company's legal
counsel was not available to comment. The next case management
conference is set for Aug. 22. [GN]
GOOGLE LLC: Must Face Consumer Privacy Class Action
---------------------------------------------------
Andrea Vittorio, writing for Bloomberg Law, reports that Alphabet
Inc.'s Google must face a consumer privacy class action over its
delivery of targeted advertising after the company failed to
convince a federal judge to toss the lawsuit in California.
Consumers adequately alleged that Google didn't make clear to them
that their personal information was shared with bidders for ads,
according to a June 13 order on the company's request to dismiss
the suit in the US District Court for the Northern District of
California.
The consumers are accusing Google of violating California and
federal law. Under the court order, they can move forward with all
but one of their claims, which was deemed duplicative of another
allegation that Google breached its privacy promises to users.
The lawsuit takes aim at what's known as real-time bidding, in
which data collected on Google users is provided to participants in
an auction for ad placement. The winning bidder gets to place an
ad, while other bidders can still see the user data, even if they
don't make a bid, according to the complaint.
The data at issue includes information about a consumer's browsing
history, devices, and interests.
Google has defended its ad practices, saying that such information
is routinely shared online.
"Privacy and transparency are core to how our ads services work," a
Google spokesperson said on June 14 in an email. The spokesperson
added that the company's policies prohibit personalized ads based
on sensitive categories of information, including health data and
race or religion.
Lawyers from Cooley LLP represent Google. The consumers are
represented by lawyers from Pritzker Levine LLP, Simmons Hanly
Conroy LLC, Bleichmar Fonti & Auld LLP, Cotchett, Pitre & McCarthy
LLP, DiCello Levitt Gutzler LLC, and Bottini & Bottini Inc.
The case is In re Google RTB Consumer Privacy Litig., N.D. Cal.,
No. 5:21-cv-2155, dismissal order 6/13/22. [GN]
GOOGLE LLC: Sept. 24 BIPA Settlement Claims Filing Deadline Set
---------------------------------------------------------------
Joshua Powers, writing for Komando.com, reports that there are
thousands of class-action lawsuits every year. While they don't
amount to much for those affected, you could still walk away with a
little payday. Companies rarely notify you that they're being sued.
You have to seek these lawsuits out, and we're here to tell you
how.
Before continuing, it's important to know that online scams are
everywhere. You can recover from most of them, but it's best not to
fall for these traps in the first place.
It's important to understand that these sites are tricky to
navigate (by design). Ads emulate claim forms to try to steal your
personal information. If you're redirected to another site, close
it. Be wary of advertisements versus actual forms.
If any class-action lawsuit asks you to provide payment or payment
information (even if they claim it's to provide you with a payout),
it's a scam. Close it. None of these lawsuits will ask you to do
that. There are six significant cases we need to cover. Here we
go.
1. Google Photos - $100 million to Illinois residents
Google uses satellite imagery and photos to enrich online users'
experiences. Most notably through its search engine.
If you live in Illinois and had your photographs uploaded to Google
Photos, you have until Sept. 24, 2022, to lay your claim in this
$100 million settlement.
From May 1, 2015, to April 25, 2022, users may have appeared in
these photos. Your face could still be out there even if you don't
use Google Photos. It violates the Illinois Biometric Information
Privacy Act.
The process is easier if you have a Settlement Claim ID, but it's
not impossible to file without one.
2. Facebook - $650 million to Illinois residents
Facebook, Meta, whatever you want to call it, had a massive lawsuit
on its hands. It stored biometric data without properly notifying
Illinois residents.
It doesn't come as a surprise from the tech giant since it doesn't
prioritize your privacy in the slightest.
The settlement money was issued to residents of Illinois who used
Facebook or allowed it to capture biometric data between the dates
of June 7, 2011, and Nov. 23, 2020. The company has since dissolved
this technology and practice.
The claim date has passed. In May of 2022, Facebook began sending
settlement checks to 1.4 million Illinois residents in the ballpark
of $200 to $400.
3. StubHub - $133 in credit or $20 per person (if purchased in
California)
If you have proof of purchase from a StubHub transaction,
specifically in California, you may be eligible to receive up to
$133 in credit or $20 in cash.
StubHub was accused of breaking California law related to display
advertising for its ticket sales. StubHub failed to disclose its
profit from certain fees, masking its real intent.
You are eligible if you purchased a ticket through the StubHub
website or mobile website between Sept. 1, 2015, and Sept. 1, 2019.
You can file a claim here.
4. Noom - Up to $167 back per customer
Did you purchase a recurring subscription to Noom? A lot of people
did, especially after its successful video ad campaign.
The thing is, its auto-renewal terms were tough to understand and
left out critical information. After that, refunds were an absolute
mess, and many people did not receive their total refund.
The lawsuit affects those who purchased an auto-renewal plan
between May 12, 2016, and October 2021. You have until June 24,
2022, to file a claim. Noom has already settled on a claim amount.
5. Lash Boost - Up to $500
Lash Boost is owned by Rodan + Fields, and the goal of the product
was to strengthen eyelashes. However, as with any cosmetics, there
are risks involved. Rodan + Fields failed to notify users of the
potential risks, leading to a $38 million settlement.
If you used Lash Boost between Oct. 1, 2016, and March 11, 2022,
you could be eligible. Settlement payments are either $175 in cash
or a credit voucher for up to $250 for Rodan + Fields.
Rodan + Fields released a positive statement about the settlement,
which most brands don't normally do. You can find in-depth
information on the settlement agreement here and check eligibility
to be included in the class-action lawsuit here.
6. Whirlpool - $150 for leaky dishwashers
If you purchased a dishwasher from Whirlpool between 2010 and 2017,
you could have a device with a defective diverter seal. These can
lead to home damage, and of course, the dishwasher isn't all that
effective either.
Find out if you're eligible right here. You have until July 26,
2022 (a fast-approaching deadline) to join the claim. However, if
you had any repair service for your dishwasher, you only have 90
days post-repair to file a claim since this could remove the issue
altogether.
Find receipts for any repairs that were made, and prepare to make
copies so you can use them as proof.
Class-action lawsuit tips
Do I need to fill out my claim more than once?
No. Filling out the same claim multiple times will result in all
subsequent filings being deleted. There is no reason to submit more
than one claim. Once you have confirmation of your submission
(usually an email), you don't have to do anything else.
What happens if I accidentally submit false information to a
class-action lawsuit claim?
Submitting false information for a legal claim, even by accident,
can result in you losing all eligibility to receive any
compensation from the lawsuit in question.
It may also deter you from submitting information for another
class-action lawsuit in the future. The prospect of getting a check
from one of these lawsuits is great, just don't get ahead of
yourself. Double-check all fields before submitting a claim.
Is my claim form information used for any other purposes?
It depends on the service that you submit your claim through. These
services list what does and doesn't happen with your information.
Since many lawsuits are around privacy, these firms and services
are privacy-centric and state that they do not sell or misuse your
information for any purpose. Do your research for each class-action
lawsuit, and be aware of where you're sending your information.
[GN]
GRAPEVINE DISTRIBUTORS: Must Submit Bid for Initial OK of Deal
--------------------------------------------------------------
In the class action lawsuit captioned as BAKARI H. GLYMPH-DOZIER
and SOLOMON HILL, on behalf of themselves and all other similarly
situated persons, v. GRAPEVINE OF NORTH CAROLINA, INC. d/b/a
GRAPEVINE DISTRIBUTORS OF THE CAROLINAS, and SCOTT A. COHEN, Case
No. 1:21-cv-748-CCE-JEP (M.D.N.C.), the Court entered an order
granting the parties more time within which to file initial
settlement documents including a joint motion for conditional class
certification and a joint motion for preliminary approval of the
settlement agreement.
The parties must file initial settlement documents including a
joint motion for conditional class certification and joint motion
for preliminary approval of the settlement agreement no later than
July 13, 2022.
Grapevine of North Carolina, Inc. operates as a distributor of
alcoholic beverages.
A copy of the Court's order dated June 21, 2022 is available from
PacerMonitor.com at https://bit.ly/3tWjuui at no extra charge.[CC]
HORIZON ACTUARIAL: Faces Class Action Over 2021 Data Breach
-----------------------------------------------------------
Samantha Hawkins, writing for Bloomberg Law, reports that Horizon
Actuarial Services faces another suit over a 2021 data breach that
allegedly affected nearly 2.5 million individuals who were signed
up for benefit plans through their employers.
The first proposed class action over the data breach was filed in
April, and voluntarily dismissed without prejudice by the plaintiff
on June 14.
Since April, Horizon has gotten hit with seven additional suits
that allege that the consulting firm failed to safeguard the
plaintiffs' personal information, allowing their names, dates of
birth, Social Security numbers, and personal health information to
be compromised. [GN]
HYUNDAI MOTOR: Faces Class Action Suit Over Defective Seat Belts
----------------------------------------------------------------
Corrado Rizzi, writing for ClassAction.org, reports that more than
200,000 newer Hyundai vehicles are plagued by a defect that can
cause a vital seat belt part to explode, a proposed class action
lawsuit says.
The 46-page complaint out of Florida was filed in the wake of a May
2022 recall of roughly 239,000 Hyundais in the U.S. whose seat belt
pretensioners, which are designed to retract and tighten a seat
belt the moment a crash happens, could explode and scatter metal
fragments throughout the vehicle.
According to the lawsuit, the cause of the seat belt pretensioner
problem remains unknown.
Be sure to scroll down to see which Hyundai vehicle models are
mentioned in the lawsuit and what drivers need to do next.
The filing alleges Hyundai Motor Company has known of the seat belt
pretensioner defect since at least September 2021, when it was
informed by the National Highway Traffic Safety Administration
(NHTSA) of a crash involving a 2021 Elantra. During the incident,
the suit says, the driver-side seat belt pretensioner "deployed
abnormally," propelling metal fragments throughout the cabin and
injuring a passenger's leg.
Per the suit, Hyundai was informed months later of a similar
incident in Puerto Rico, and again of a pretensioner explosion that
reportedly occurred in Singapore earlier this year.
"Defendants knew or should have known of the Seat Belt Defect much
earlier due to pre-production testing, failure mode analysis, and
reports to authorized dealers, repair centers, and complaints to
the NHTSA," the complaint charges. "Despite having knowledge of the
exploding seat belt pretensioners, Hyundai concealed this
information, delayed issuing a recall, and still to this day has
not sent notification letters to owners of the defective vehicles."
"An inherent safety risk"
The lawsuit contends that although Hyundai touts its vehicles as
offering "untouched and elite" safety, among other superlatives,
the cars ultimately "have not lived up to their promise of being
the best in safety." Indeed, the case asserts that the seat belt
pretensioner issue poses an inherent and dangerous safety risk to
drivers and passengers.
"Rather than ‘add[ing] ten years to [their] life," the complaint
says, "Plaintiffs and the Class are at an increased risk for
crashes, severe injury, and death."
According to the suit, the pretensioner is the part of a vehicle's
seat belt system that draws back the belt to keep it firm while the
car is in motion. This component is also responsible for locking
the belt during a collision to keep the occupant in position, the
case adds.
To do this, the pretensioner, once sensors detect an accident, uses
an explosive charge to initiate a concealed piston, which then
drives the spool of the seat belt fabric rapidly around, removing
any slack, the lawsuit relays.
Per the case, it's this pyrotechnic-type seat belt pretensioner
that can deploy "abnormally" during a crash and send metal
fragments throughout the vehicle compartment.
The lawsuit argues that Hyundai's recall was "untimely and
ineffective" at addressing the exploding seat belt pretensioner
issue and remedying the "significant losses" incurred by drivers.
The suit alleges Hyundai concealed what it knew about the defect to
"maintain a market for their vehicles, to protect profits, and to
avoid recalls that would hurt the brand's reputation and have
significant costs."
Had consumers known of the safety issue, the suit says, they never
would have bought the vehicles or would have paid substantially
less for them.
Which Hyundai vehicles are mentioned in the lawsuit?
The Hyundai vehicle models allegedly equipped with defective seat
belt pretensioners include:
- 2019-2022 Hyundai Accent;
- 2021-2023 Hyundai Elantra; and
- 2021-2022 Hyundai Elantra Hybrid.
The complaint states that the above list of vehicles may expand
upon further investigation by the plaintiffs' attorneys.
Want to stay in the loop on class actions that matter to you? Sign
up for ClassAction.org's free weekly newsletter here.
Who does the suit look to cover?
The lawsuit looks to represent all individuals and entities who
bought or leased any of the Hyundai vehicle models listed above in
the United States or its territories.
I drive one of the Hyundais mentioned in the lawsuit. What's next?
The NHTSA recall report states that all affected vehicle owners
will be notified via first-class mail with instructions to bring
their car to an authorized dealer to have their seat belt
pretensioner's micro gas generator and delivery pipe secured with a
cap to prevent abnormal deployment. The fix will be offered for
free, regardless of whether a vehicle is still covered under
warranty.
Moreover, Hyundai will provide vehicle owners with reimbursement
for out-of-pocket expenses incurred from fixing the seat belt
pretensioner. To contact Hyundai customer service, call
1-855-371-9460 and reference recall number 229.
As for the lawsuit, there's generally nothing a consumer needs to
do to "join" or make sure they're "included" in a class action
after it's initially filed. It's only if and when a case settles
that they might need to act, typically by submitting a claim form
online or by mail.
Should this case settle at some point in the future and you're
"covered," you would most likely receive a notice by mail and/or
email. This document will include information on how and by when to
file a claim, your legal rights, any proof you might need to
submit, and more.
Most proposed class actions take time to work their way through the
legal process, usually toward a settlement, dismissal or
arbitration. For now, Hyundai drivers, and anyone else interested
in class action lawsuit and settlement news, should sign up for
ClassAction.org's free weekly newsletter. [GN]
HYUNDAI MOTOR: Faces Class Suit in Quebec Over Vehicles' Fire Risk
------------------------------------------------------------------
Helen Hernandez, writing for Oicanadian, reports that a Quebec
class action request was filed on June 2 against manufacturers
Hyundai and Kia on behalf of Martin Kodybko in connection with a
fire risk caused by a defect in the anti-lock braking system of
several models. It is led by the firm Slater Vecchio.
The claim relates to a short circuit hazard caused by a design flaw
that causes moisture to build up in the anti-lock braking system
control module or the anti-lock braking system itself. The
plaintiffs justify this collective action by the "persistent,
recurring and dangerous nature of this latent defect".
The plaintiff also believes that despite a series of recall
campaigns since 2013, Hyundai and Kia have failed to find an
adequate solution to this problem. Note that a fire can break out
both when the vehicle is running and when it is stationary.
Affected customers are alleged to have overpaid for their vehicles
upon purchase due to unawareness of the issue and the affected
vehicles have lost resale value. Some consumers also had to rent
rental vehicles at their own expense.
It is estimated that approximately 20,000 vehicles were recalled in
connection with this defect in Quebec. It is sought by this request
that Hyundai and Kia pay $1,000 in punitive damages to all affected
class members. The compensatory damages requested will be
determined later. [GN]
HYUNDAI MOTOR: Pretensioner Recall Causes Class Action Lawsuit
--------------------------------------------------------------
David A. Wood at carcomplaints.com reports that a Hyundai seat belt
pretensioner recall has caused a class action lawsuit that alleges
the automaker concealed the defects and waited too long to recall
the vehicles.
The problem is the seat belt pretensioner that helps to secure an
occupant in a crash.
The seat belt pretensioner should quickly tighten the seat belt
against the occupant, but Hyundai says the pretensioners have been
exploding.
The Hyundai pretensioner class action lawsuit includes 2019-2022
Hyundai Accents, 2021-2023 Hyundai Elantras and 2021-2022 Hyundai
Elantra Hybrids.
A Hyundai pretensioner recall was announced in May for about
239,000 model year 2019-2022 Accent, 2021-2023 Elantra and
2021-2022 Elantra Hybrid vehicles in the U.S.
The recall included Hyundai vehicles equipped with front driver and
passenger pyrotechnic-type seat belt pretensioners that could
explode and send metal fragments into occupants.
The May 2022 recall wasn't the first for pretensioner problems, yet
Hyundai's engineers still hadn't found a root cause for the
explosions.
Documents related to the seat belt pretensioner recall said a
Hyundai Elantra crash in September 2021 caused a driver to receive
injuries from metal pretensioner fragments.
In December 2021, a second incident involving a 2020 Hyundai Accent
in Puerto Rico allegedly caused injuries to a passenger when the
seat belt pretensioner exploded, followed by a Singapore Elantra
crash in February 2022.
The Singapore crash allegedly caused injuries to a backseat
occupant when the front left pretensioner exploded.
Even though Hyundai announced a pretensioner recall a month after
learning about the first crash in September 2021, the class action
lawsuit alleges Hyundai concealed the problem from consumers.
"This Recall is untimely and ineffective at remedying the
significant losses, which Plaintiff and the Class have suffered.
Defendants actively concealed or suppressed these material facts,
in whole or in part, to maintain a market for their vehicles, to
protect profits, and to avoid recalls that would hurt the brand's
reputation and have significant costs." - Hyundai pretensioner
lawsuit
Joining Hyundai's engineers, a third-party engineering company
found the pretensioners shouldn't explode if caps are installed at
the micro gas generators and delivery pipes. According to the May
2022 Hyundai pretensioner recall, dealerships will install the seat
belt pretensioner caps.
Florida plaintiff Kris Jarrell, who sued for more than $5 million,
doesn't allege her Hyundai Elantra seat belt pretensioner
exploded.
The Hyundai seat belt pretensioner class action lawsuit was filed
in the U.S. District Court for the Middle District of Florida
(Orlando Division): Kris Jarrell v. Hyundai Motor America
Corporation, et al.
The plaintiff is represented by Schlesinger Law Offices, P.A.[GN]
INMAR INC: Must File Class Cert Response by June 28
----------------------------------------------------
In the class action lawsuit captioned as MR. DEE'S, INC., RETAIL
MARKETING SERVICES, INC., on behalf of themselves and all others
similarly situated, and CONNECTICUT FOOD ASSOCIATION, v. INMAR,
INC., CAROLINA MANUFACTURER'S SERVICES, INC., CAROLINA SERVICES,
and CAROLINA COUPON CLEARING, INC., the Court entered an order
granting the Defendants' motion for Extension of Time to file their
Response to Plaintiffs' Renewed Motion for Class Certification and
Appointment of Class Counsel.
The Defendants move the court for a one-week extension of the
deadline from June 21, 2022 to June 28, 2022. Having considered the
motion, with Plaintiffs' consent, and for good cause shown, it is
hereby ordered that Defendants' motion for extension, is granted
and that Defendants shall have up to and including June 28, 2022
within which to file their response to Plaintiffs' Renewed Motion
for Class Certification and Appointment of Class Counsel.
Inmar develops technology and data analytics services.
A copy of the Court's order dated June 21, 2022 is available from
PacerMonitor.com at https://bit.ly/39JjV46 at no extra charge.[CC]
INNOVATIVE HEALTH: Wins Bid for Summary Judgment in Bhambhani Suit
------------------------------------------------------------------
In the case, RITU BHAMBHANI, M.D., et al., Plaintiffs v. INNOVATIVE
HEALTH SOLUTIONS, INC., et al., Defendants, Civil Action No.
19-00355-LKG (D. Md.), Judge Lydia Kay Griggsby of the U.S.
District Court for the District of Maryland issued a Memorandum
Opinion and Order:
(1) granting the Defendants' motion for summary judgment;
(2) denying the Plaintiffs' motion for leave; and
(3) dismissing the third amended complaint.
I. Introduction
Plaintiffs Dr. Ritu Bhambhani and Dr. Sudhir Rao bring the putative
class action lawsuit on behalf of themselves and other similarly
situated individuals alleging civil violations of the Racketeer
Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C.
Section 1962; fraudulent misrepresentation; intentional
misrepresentation by concealment or non-disclosure; and civil
conspiracy claims against defendants, Innovative Health Solutions,
Inc. ("IHS"); Innovative Healthcare Solutions, LLC ("IHCS");
Acclivity Medical, LLC; DragonSlayer Strategies LLC; Coleman
Certified Medical Billing & Consultant, LLC; Joy Long; and Ryan
Kuhlman.
The Defendants have moved for summary judgment in their favor with
regards to the Plaintiffs' claims, upon the ground that the
Plaintiffs lack standing to bring the action. The Plaintiffs also
seek leave to file a fourth amended complaint.
No hearing is necessary to resolve these motions.
II. Background
Plaintiff Dr. Ritu Bhambhani is a medical doctor practicing in
Abingdon, Maryland, and she is board-certified in Anesthesiology
and Pain Medicine. Plaintiff Dr. Sudhir Rao is a medical doctor
practicing primarily in Mount Airy, Maryland, and he is also
board-certified in Anesthesiology and Pain Medicine.
Defendant IHS is an Indiana corporation that is alleged to have
engaged in the marketing, selling, and distributing of a product
known as the Neuro-Stim System. IHCS is an Ohio limited liability
company that is alleged to have participated in the marketing and
billing scheme described in the third amended complaint.
Acclivity is a former Kentucky limited liability company that is
alleged to have engaged in the marketing, selling and distributing
of Neuro-Stim. Ryan Kuhlman was the sole owner of Acclivity.
DragonSlayer is a former Indiana limited liability company that is
alleged to have participated in the marketing and billing scheme
described in the third amended complaint. Joy Long was the sole
member of DragonSlayer. Lastly, Coleman is an Ohio limited
liability company that is also alleged to have participated in the
alleged marketing and billing scheme.
The Plaintiffs allege that IHS sold, marketed, and distributed
Neuro-Stim devices through exclusive-rights sales-agent
distributors ("Sales Agents"), including Defendants Acclivity and
IHCS. They also allege that IHS and its Sales Agents invested
substantial sums in advertising and marketing the Neuro-Stim
devices in a misleading manner throughout the United States,
including on websites, at trade shows, in brochures, in
newsletters, in videos, on phone calls, in emails, and in on-site
presentations at physician offices and ambulatory surgery centers.
In this regard, the Plaintiffs contend that IHCS explicitly
referred to the Neuro-Stim device as "FDA-approved," claiming that
it was the "first and only FDA approved electro-auricular,
peripheral nerve stimulator currently on the market to treat acute
and chronic pain" in a slideshow used by IHCS to promote the
Neuro-Stim devices to Dr. Bhambhani and other medical providers.
But, they allege that IHCS did not reference acupuncture or
electroacupuncture in this presentation.
The Plaintiffs further allege that, as a means of enticing them and
other medical providers to purchase the Neuro-Stim devices, the
Defendants promoted the billing of the Neuro-Stim by using a
specific set of codes used to report implantable nerve stimulators.
They also allege that IHS and its Sales Agents employed the
services of independent coding consultants, including DragonSlayer,
for this purpose. And so, the Plaintiffs allege that they were
fraudulently induced to purchase Neuro-Stim devices, and that they
are members of a class of healthcare providers who purchased one or
more Neuro-Stim devices, as a result of the Defendants'
misrepresentation.
The Plaintiffs contend that they sustained economic injuries after
Medicare disallowed and sought to recover payments for treatments
involving Neuro-Stim devices. And so, they seek, among other
things, to recover monetary damages from the Defendants.
The Plaintiffs commenced the action on Feb. 6, 2019. They filed an
amended complaint on April 15, 2019. On Feb. 11, 2020, the Court
issued a Memorandum Opinion and Order dismissing with prejudice the
Plaintiffs' negligence and declaratory judgment claims.
The Plaintiffs filed second and third amended complaints on Aug.
28, 2020, and May 21, 2021, respectively. On Aug. 3, 2021, the
Court issued a Memorandum Opinion and Order denying Defendant Ryan
Kuhlman's motion to dismiss the third amended complaint pursuant to
Fed. R. Civ. P. 12(b)(2) and (b)(6).
On Feb. 11, 2022, IHS filed a motion for summary judgment and a
memorandum in support thereof. On Feb. 17, 2022, Defendants
Acclivity and Ryan Kuhlman joined IHS's motion for summary
judgment. On Feb. 25, 2022, the Plaintiffs filed a consolidated
response in opposition to the Defendants' motion for summary
judgment and a cross-motion for leave to file a fourth amended
complaint. The Defendants filed a reply in support of their motion
for summary judgment and a response in opposition to the
Plaintiffs' motion for leave to file a fourth amended complaint on
March 18, 2022.
These motions having been fully briefed, the Court resolves the
pending motions.
III. Analysis
The Defendants have moved for summary judgment in their favor upon
the ground that the named Plaintiffs in the case lack standing to
pursue their civil RICO and state law claims. Specifically, they
argue that the Plaintiffs lack standing to pursue these claims,
because the undisputed material facts show that they did not: (1)
purchase the Neuro-Stim devices at issue in the case; (2) submit
bills to Medicare seeking payment for services related to the use
of these Neuro-Stim devices; (3) receive payment from Medicare; or
(4) have any payments withheld by Medicare. And so, the Defendants
request that the Court grants their motion for summary judgment and
dismiss the case.
The Plaintiffs counter that they have standing to pursue these
claims, because they may be personally liable to the Medicare
program for certain overpayments related to the billing of services
involving the Neuro-Stim devices. And so, they request that the
Court denies the Defendants' motion for summary judgment.
Alternatively, the Plaintiffs seek leave to file a fourth amended
complaint to add the Practice Entities as named Plaintiffs in the
case.
A. Defendants' Standing Argument Is Ripe
As a preliminary matter, Judge Griggsby agrees with the Defendants
that the question of whether the named plaintiffs in the putative
class action have standing is ripe for resolution by the Court.
While the Supreme Court has held that class certification questions
are often resolved before challenges to standing, the case involves
a challenge to the standing of the individually named plaintiffs in
the case. Because the Defendants raise a threshold jurisdictional
question regarding whether the individually named plaintiffs in the
case have standing to pursue their claims, it is appropriate for
the Court to address this question at this stage in the
litigation.
B. Plaintiffs Lack Standing To Pursue Their Claims
The Defendants persuasively argue that the Plaintiffs lack standing
to pursue their RICO and state law claims. To possess standing,
plaintiffs must have, among other things, "suffered an
injury-in-fact that was concrete and particularized and either
actual or imminent." The Plaintiffs allege in the case that the
Defendants advertised and marketed the Neuro-Stim devices in a
misleading manner and that the Plaintiffs were fraudulently induced
to purchase these devices as a result of the Defendants'
misrepresentations. And so, the Plaintiffs contend that they
sustained economic injuries, after Medicare disallowed and sought
to recover certain payments for treatments involving Neuro-Stim
devices, as a result of the Defendants' conduct.
Judge Griggsby holds that because the undisputed material facts
show that the Plaintiffs have not suffered an injury-in-fact, as a
result of the alleged marketing and billing scheme alleged in the
case to establish standing, she grants the Defendants' motion for
summary judgment.
C. Plaintiffs Have Not Shown Good Cause To Further Amend The
Complaint
As a final matter, Judge Griggsby must deny the Plaintiffs' motion
for leave to file a fourth amended complaint in the matter, because
they have not shown that good cause exists to warrant the proposed
amendment. First, the Plaintiffs' proposed amendment comes more
than three years after they commenced the case. Second, the
Plaintiffs filed their motion for leave approximately 16 months
after the deadline for amending the pleadings lapsed under the
Court's Scheduling Order.
IV. Conclusion
Judge Griggsby concludes that the undisputed material facts in the
case show that the Plaintiffs lack standing to pursue their claims,
because they neither purchased, nor submitted billings for, the
Neuro-Stim devices at issue in the case. The Plaintiffs have also
not shown that good cause exists to amend the complaint for a
fourth time to add the Practice Entities as Plaintiffs at this
mature stage of the litigation.
And so, Judge Griggsby (1) grants the Defendants' motion for
summary judgment; (2) denies the Plaintiffs' motion for leave to
further amend the complaint; and (3) dismisses the amended
complaint.
The Clerk will enter judgment accordingly. Each party will bear its
own costs.
A full-text copy of the Court's June 14, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/38m5sd97 from
Leagle.com.
IONQ INC: Gross Law Firm Reminds of August 1 Deadline
-----------------------------------------------------
The Gross Law Firm issues the following notice to shareholders of
IonQ, Inc.
Shareholders who purchased shares of IONQ during the class period
listed are encouraged to contact the firm regarding possible lead
plaintiff appointment. Appointment as lead plaintiff is not
required to partake in any recovery.
CONTACT US HERE:
https://securitiesclasslaw.com/securities/ionq-inc-loss-submission-form/?id=28547&from=4
CLASS PERIOD: March 30, 2021 to May 2, 2022
ALLEGATIONS: The complaint alleges that during the class period,
Defendants issued materially false and/or misleading statements
and/or failed to disclose that: (1) IonQ had not yet developed a
32-qubit quantum computer; (2) the Company's 11-qubit quantum
computer suffered from significant error rates, rendering it
useless; (3) IonQ's quantum the computer is not sufficiently
reliable, so it is not accessible despite being available through
major cloud providers; (4) a significant portion of IonQ's revenue
was derived from improper roundtripping transactions with related
parties; and (5) as a result of the foregoing, defendants' positive
statements about the Company's business, operations, and prospects
were the materially misleading and/or lacked a reasonable basis.
DEADLINE: August 1, 2022 Shareholders should not delay in
registering for this class action. Register your information here:
https://securitiesclasslaw.com/securities/ionq-inc-loss-submission-form/?id=28547&from=4
NEXT STEPS FOR SHAREHOLDERS: Once you register as a shareholder who
purchased shares of IONQ during the timeframe listed above, you
will be enrolled in a portfolio monitoring software to provide you
with status updates throughout the lifecycle of the case. The
deadline to seek to be a lead plaintiff is August 1, 2022. There is
no cost or obligation to you to participate in this case.
WHY GROSS LAW FIRM? The Gross Law Firm is nationally recognized
class action law firm, and our mission is to protect the rights of
all investors who have suffered as a result of deceit, fraud, and
illegal business practices. The Gross Law Firm is committed to
ensuring that companies adhere to responsible business practices
and engage in good corporate citizenship. The firm seeks recovery
on behalf of investors who incurred losses when false and/or
misleading statements or the omission of material information by a
company lead to artificial inflation of the company's stock.
Attorney advertising. Prior results do not guarantee similar
outcomes.
CONTACT:
The Gross Law Firm
15 West 38th Street, 12th floor
New York, NY, 10018
Email: dg@securitiesclasslaw.com
Phone: (646) 453-8903 [GN]
IONQ INC: Johnson Fistel Reminds of August 1 Deadline
-----------------------------------------------------
Shareholder rights law firm Johnson Fistel, LLP on June 14
disclosed that a class action lawsuit has commenced on behalf of
investors of IonQ, Inc. ("IonQ" or "the Company") (: IONQ. The
class action is on behalf of shareholders who purchased between
March 30, 2021 and May 2, 2022, both dates inclusive (the "Class
Period"). Investors are hereby notified that they have until August
1, 2022, to move the Court to serve as lead plaintiff in this
action.
What actions may I take at this time? If you suffered a substantial
loss and are interested in learning more about being a lead
plaintiff, please contact Jim Baker (jimb@johnsonfistel.com) by
email or phone at 619-814-4471. If emailing, please include a phone
number.
To have your losses evaluated, you can click or copy and paste the
link below in a browser:
https://www.johnsonfistel.com/investigations/ionq-news-johnson-fistel-encourages-shareholders-to-contact-the-firm-regarding-investigation
There is no cost or obligation to you.
The IonQ class-action lawsuit alleges that, throughout the Class
Period, the defendants made false and misleading statements and
failed to disclose that: (i) IonQ had not yet developed a 32-qubit
quantum computer; (ii) IonQ's 11-qubit quantum computer suffered
from significant error rates, rendering it useless; (iii) IonQ's
quantum computer is not sufficiently reliable, so it is not
accessible despite being available through major cloud providers;
(iv) a significant portion of IonQ's revenue was derived from
improper round-tripping transactions with related parties; and (v)
as a result, defendants' positive statements about IonQ's business,
operations, and prospects were materially misleading and/or lacked
a reasonable basis.
A lead plaintiff will act on behalf of all other class members in
directing the IonQ class-action lawsuit. The lead plaintiff can
select a law firm of its choice to litigate the class-action
lawsuit. An investor's ability to share any potential future
recovery of the IonQ class action lawsuit is not dependent upon
serving as lead plaintiff. For more information regarding the lead
plaintiff process please refer to
https://www.johnsonfistel.com/lead-plaintiff-deadlines.
About Johnson Fistel, LLP:
Johnson Fistel, LLP is a nationally recognized shareholder rights
law firm with offices in California, New York and Georgia. The firm
represents individual and institutional investors in shareholder
derivative and securities class action lawsuits. Johnson Fistel
seeks to recover losses incurred due to violations of federal
securities laws. For more information about the firm and its
attorneys, please visit http://www.johnsonfistel.com.Attorney
advertising. Past results do not guarantee future outcomes.
Contact:
Johnson Fistel, LLP
Jim Baker, 619-814-4471
Investor Relations
jimb@johnsonfistel.com [GN]
IT WORKS: Brooks' Bid for Provisional Class Certification Junked
----------------------------------------------------------------
In the class action lawsuit captioned as AILEEN BROOKS, on behalf
of herself and all others similarly situated, v. IT WORKS
MARKETING, INC., et al., Case No. 1:21-cv-01341-DAD-BAK (E.D.
Cal.), the Hon. Judge Dale A. Drozd entered an order denying the
plaintiff's motion for a preliminary injunction and provisional
class certification.
This putative class action arises from Brooks’ purchase of a
weight loss product called Thermofight X from defendants It Works
Marketing, Inc. and It Works! Global Inc.
ThePlaintiff proceeds on her first amended class action complaint
(FAC) against defendants It Works! and defendants Mark Pentecost,
the It Works! founder and CEO, and Paul Nassif, a plastic surgeon
and reality TV star who has developed and promoted products for It
Works!.
In her FAC, plaintiff alleges that she purchased Thermofight from
an independent distributor in reliance on defendants'
representations that it was a safe and effective weight control
product.
Despite alleging that she used Thermofight as directed, plaintiff
claims it did not deliver on its advertised benefits or provide any
results at all.
Moreover, plaintiff alleges that when making her initial purchase
she was enrolled in an auto-shipment program without her knowledge,
which required a minimum of three purchases of Thermofight (one per
month).
The Plaintiff alleges that she was charged for two purchases of
Thermofight before realizing that she had been enrolled in the
auto-shipment program. Although plaintiff was able to cancel 13
future shipments over the phone, her request for a refund for the
second shipment was denied.
The Plaintiff alleges that these auto-billing practices constitute
an unlawful "automatic renewal" prohibited under California law.
The Plaintiff does not allege that e suffered any other injuries
from using Thermofight.
It Works! Marketing is a health & wellness company specializing in
body wraps and weight loss products.
A copy of the Court's order dated June 21, 2022 is available from
PacerMonitor.com at https://bit.ly/39NUIFS at no extra charge.[CC]
J.M. SMUCKER: Faces Two Class Actions Following Voluntary Recall
----------------------------------------------------------------
Keller and Heckman LLP, in an article for The National Law Review,
disclosed that on May 20th J.M. Smucker Co. issued a voluntary
recall of its JIF peanut butter products due to potential
Salmonella contamination linked to a manufacturing facility in
Lexington, Kentucky.
Class-action lawyers wasted no time in holding J.M. Smucker
accountable and at least two class-actions have been filed against
the company alleging various causes of action, including negligence
and breach of warranties, for actions resulting in the production
of potentially contaminated product that was sold to plaintiffs and
other similarly situated consumers. The law firm of Akim represents
the Plaintiff in both lawsuits and the complaints are substantially
similar to one another.
The recall is still being investigated by FDA, CDC, and other state
partners. It presents a particularly interesting question of legal
liability since the Salmonella strain associated with illness in
the current outbreak is the same one which was found in an
environmental sample during a 2010 FDA inspection. Keller and
Heckman will continue to monitor this litigation and the results of
the outbreak investigation. [GN]
KROGER CO: Post-Certification Scheduling Conference Sought
----------------------------------------------------------
In the class action lawsuit captioned as TAMMY KIBLER, on behalf of
herself and all others similarly situated, v. THE KROGER COMPANY,
an Ohio corporation; DILLON COMPANIES, LLC d/b/a KING SOOPERS/CITY
MARKET, a Kansas limited liability company, Case No.
1:21-cv-00509-PAB-KLM (D. Colo.), the Parties submit their Joint
Motion for Post-Certification Scheduling Conference:
Certificate of Conferral: Pursuant to D.C.COLO.LCivR 7.1(a), the
Parties have conferred regarding the relief requested in this
Motion and bring the Motion jointly.
The Court's Order dated April 29, 2021 contemplates the unique
scheduling constraints of a conditionally certified collective
action. This Fair Labor Standards Act ("FLSA") action has been
conditionally certified and, as of April 29, 2022, the opt-in
period has closed. To facilitate the continued progress of this
action, the Parties respectfully request the occurrence of a
post-certification scheduling conference.
The Parties will jointly prepare an amended proposed scheduling
order and submit it for the Court's review no later than seven days
before the post-certification scheduling conference.
The Parties also respectfully seek leave of Court to participate in
the post-certification scheduling conference telephonically.
Defendants' counsel are located in Cincinnati, Ohio, and travel to
Denver, Colorado for the scheduling conference would be
unnecessary. No party would be prejudiced by counsel's telephonic
appearance.
A copy of the Parties' motion dated June 21, 2022 is available from
PacerMonitor.com at https://bit.ly/3ynqnYl at no extra charge.[CC]
The Plaintiff is represented by:
Andrew E. Swan, Esq.
Paul F. Lewis, Esq.
LEVENTHAL | LEWIS
KUHN TAYLOR SWAN PC
620 North Tejon Street, Suite 101
Colorado Springs, CO 80903
Telephone: (719) 694-3000
E-mail: plewis@ll.law
aswan@ll.law
The Defendants are represented by:
David K. Montgomery, Esq.
Ryan M. Martin, Esq.
Jamie M. Goetz-Anderson, Esq.
JACKSON LEWIS P.C.
201 East Fifth Street, 26 th Floor
Cincinnati, OH 45202
Telephone: (513) 898-0050
E-mail: David.Montgomery@jacksonlewis.com
Jamie.Goetz-Anderson@jacksonlewis.com
Ryan.Martin@jacksonlewis.com
LEGION ATHLETICS: Nutritional Drinks Deceptively Labeled, Suit Says
-------------------------------------------------------------------
Michael Zurl, on behalf of himself and all others similarly
situated, v. LEGION ATHLETICS, INC., Case No. 1:22-cv-03500
(E.D.N.Y., June 14, 2022) is a class action lawsuit for violations
of the New York General Business Law against Legion and for breach
of implied warranty, breach of express warranty, fraud, unjust
enrichment, and declaratory and injunctive relief.
This action arises from the deceptive trade practices of Defendant
in its manufacture and sale of nutritional powders containing
branched-chain amino acids labeled "Pulse Pre-Workout Drink" and
its advertisements which claim that the Product contains only 10
calories per serving, the suit asserts.
The Pulse Pre-Workout Drink product line includes the following
flavor variations: Fruit Punch, Caffeine Free Fruit Punch, Blue
Raspberry, Caffeine Free Blue Raspberry, Green Apple, Caffeine Free
Green Apple, Tropical Punch, Caffeine Free Tropical Punch, Grape,
Sour Candy, Strawberry Kiwi, Watermelon, Strawberry Margarita,
Apple Cider, Arctic Blast, Blood Orange, Blueberry Lemonade, Bubble
Gum, Cherry Limeade, Frosted Cranberry, Pink Lemonade.
Legion's representations regarding the number of Calories in the
Product on its labels, webpages and other marketing and advertising
media and materials is purposely deceptive to create a competitive
advantage against compliant competitors. However, it is the
consumers that ultimately suffer by this deviant and non-compliant
behavior because Legion knowingly provides non-factual information
and omits relevant information in an attempt to deceive and entice
sales to consumers who are seeking to purchase low-calorie products
conducive to weight loss and control, says the suit.[BN]
The Plaintiff is represented by:
Nicholas A. Migliaccio, Esq.
Jason S. Rathod, Esq.
412 H Street NE, Suite 302
Washington, DC 20002
Telephone: (202) 470-3520
E-mail: nmigliaccio@classlawdc.com
jrathod@classlawdc.com
- and -
D. Aaron Rihn, Esq.
Sara J. Watkins, Esq.
ROBERT PIERCE & ASSOCIATES, P.C.
707 Grant Street, Suite 125
Pittsburgh, PA 15219
Telephone: (412) 281-7229
E-mail: arihn@peircelaw.com
- and -
Robert Mackey, Esq.
LAW OFFICES OF ROBERT MACKEY
P.O. Box 279
Sewickley PA 15143
Telephone: (412) 370-9110
E-mail: bobmackeyesq@aol.com
MERCEDES-BENZ USA: Amended Class Certification Discovery Filed
--------------------------------------------------------------
In the class action lawsuit captioned as HAGOP HADJIAN,
individually, and on behalf of a class similarly situated
individuals, v. MERCEDES-BENZ USA, LLC, Case No. 1:21-cv-00469- SEG
(N.D. Ga.), the Parties submit a revised Proposed Amended Case
Management Schedule Class Certification Discovery and Motions
Practice as follows:
Event Current Proposed
Deadline Deadline
-- Deadline for fact Aug. 15,2022 Nov. 14, 2022
discovery:
-- Deadline for any motion Sept. 14, 2022 Dec. 14,2022
for class
-- Deadline for any Dec, 13,2022 March 14,2022
opposition to a motion
for class certification:
Mercedes-Benz USA, LLC is a Mercedes-Benz Group-owned distributor
for passenger cars in the United States, headquartered in Sandy
Springs, Georgia. that sells cars from the Mercedes-Benz brand.
A copy of the Parties' motion dated June 20, 2022 is available from
PacerMonitor.com at https://bit.ly/3b4mGxc at no extra charge.[CC]
The Plaintiffs are represented by:
Gary Blaylock "Blake" Andrews, Jr.
BLAKE ANDREWS LAW FIRM, LLC
1831 Timothy Drive
Atlanta, GA 30329
Telephone: (770) 828-6225
Facsimile: (866) 828-6882
E-mail: blake@blakeandrewslaw.com
- and -
Russell D. Paul, Esq.
Glen L. Abramson, Esq.
Amey J. Park, Esq.
Abigail J. Gertner, Esq.
Berger Montague PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-3000
Facsimile: (215) 875-4604
E-mail: rpaul@bm.net
gabramson@bm.net
apark@bm.net
agertner@bm.net
- and -
Tarek H. Zohdy, Esq.
Cody R. Padgett, Esq.
Laura E. Goolsby, Esq.
CAPSTONE LAW APC
1875 Century Park East, Suite 1000
Los Angeles, CA 90067
Telephone: (310) 556-4811
Facsimile: (310) 943-0396
E-mail: Tarek.Zohdy@capstonelawyers.com
Cody.Padgett@capstonelawyers.com
Laura.Goolsby@capstonelawyers.com
MERCEDES-BENZ USA: Loses Bid to Dismiss Hazdovac's 2nd Amended Suit
-------------------------------------------------------------------
In the case, CORY HAZDOVAC, Plaintiff v. MERCEDES-BENZ USA, LLC,
Defendant, Case No. 20-cv-00377-RS (N.D. Cal.), Judge Richard
Seeborg grants Mercedes' Bid to Strike the Plaintiff's Second
Amended Complaint and denies its Motion to Dismiss.
I. Introduction
In this putative class action concerning Mercedes misrepresenting
which car parts are covered by a certain warranty, the Plaintiff
moved to file a Second Amended Complaint ("SAC") and appended that
proposed amended Complaint. The Plaintiff was given leave to file
"the" proposed Complaint. Instead of filing that Complaint, the
Plaintiff filed a different amended Complaint, with many changes.
Mercedes also moves to dismiss the Complaint, on a plethora of
different grounds: Rule 9(b), equitable abstention, primary
jurisdiction, various standing issues, knowledge and reliance,
adequate remedies at law, choice of law rules for non-California
buyers, issues with the warranty, and supposed problems with
specific parts of the Complaint.
II. Background
The full background of the case is set out in previous orders. In
brief, the Plaintiff avers that Mercedes systematically
misclassifies certain parts as not being emissions-related or not
being high-priced, which allows them to give lesser warranties on
those parts than California law would require if they were
classified correctly. For example, the Plaintiff argues Mercedes
misuses the prices given to dealers instead of consumers. The
Plaintiff's previous motion to amend sought to clarify that her
suit reached all parts Mercedes misclassified. While Mercedes
argued this was a drastic expansion of the suit, the motion was
granted because the Plaintiff had sought injunctive relief
requiring Mercedes to identify all misclassified parts throughout
the suit.
III. Discussion
A. Motion to Strike
The Plaintiff was not granted leave to file whatever Complaint she
wished. She was granted leave to file a specific proposed
Complaint, and any assumption otherwise was not reasonable. The
motion was so predicated; the order discussed the specifics of the
proposed Complaint; and granted leave to file only "the" proposed
Complaint.
Judge Seeborg finds that the new Complaint is littered with
hundreds of changes compared to the proposed complaint, with
paragraph after paragraph of new material in certain sections.
While the Plaintiff may be correct that these new averments do not
significantly change the heft of the Complaint, he says, they do
modify the substance to at least some degree. In any case, filing
anything but the proposed complaint was inappropriate. Thus, as in
Hyatt v. Miller, striking the overreaching Complaint is an
appropriate remedy.
The sole remaining question on the Motion is whether to force the
Plaintiff to revert to the First Amended Complaint, or to allow her
to file the originally proposed Second Amended Complaint. Judge
Seeborg explains that courts striking material in this situation
generally do not force a further rollback to a previous version of
the Complaint. In the case, the 20 days given for filing the
proposed Complaint might have contributed to the assumption that
further changes were permissible, even though that would not have
been a reasonable interpretation. Still, it is enough reason that
no further sanctions are justified beyond striking the unapproved
Complaint. Hence, Judge Seeborg directs the Plaintiffs to file the
approved SAC within two days of the Order.
B. Motion to Dismiss
1. Rule 9(b)
Mercedes moves to dismiss the Complaint, on a long list of grounds.
First, it argues the Plaintiff's Consumer Legal Remedies Act
("CLRA") and Unfair Competition Law ("UCL") claims must satisfy
Rule 9(b)'s heightened pleading standard requiring specifics for
claims sounding in fraud. Not all claims under these statutes must
satisfy the heightened pleading requirements; only those grounded
in fraud. The Plaintiff does not address this issue in her
opposition. Elsewhere in her brief, however, she makes clear that
her case does not depend on there being an intentional
misrepresentation. Thus, Rule 9(b) is not a bar at this stage.
2. Equitable Abstention
Mercedes next argues adjudication of the Plaintiff's UCL claim and
the equitable portion of her CLRA claim should be subject to
abstention on equitable grounds. Specifically, it argues the
Plaintiff effectively asks for a judicial assumption of the role of
the California Air Resources Board ("CARB"), the group that
approves the list of warranted parts.
Judge Seeborg finds that that is not at all what the Plaintiff asks
for. She seeks only a determination of whether Mercedes is
complying with the law generally or flouting it systematically,
using basic factfinding and statutory interpretation litigation
tools. Courts are well-suited for this task. The Plaintiff does not
knock on the courthouse door again and again with a motley
collection of quibbles about different classifications, each with
unique reasoning. Instead, she levels a few general allegations,
e.g., Mercedes uses the wrong type of price across the board in
classifying parts. Finally, it bears mentioning that Mercedes's
concern for CARB is curious given CARB has submitted a declaration
in support of one of the Plaintiff's positions earlier in the case
without objecting to the case as a whole. Equitable abstention is
inappropriate on this ground.
Mercedes also argues for equitable abstention because
administrative remedies are available and more effective. In
outlining these supposed remedies, it simply describes the existing
regulatory process through which CARB approves lists of parts. This
does not advance Mercedes' case, Judge Seeborg hol. Mercedes does
not point to any mechanism by which the Plaintiff can petition CARB
directly for review of Mercedes' parts, or any similar
administrative remedy. The Plaintiff argues the existing
administrative process has failed, and asks the court for redress.
Equitable abstention is not justified in the case.
3. Primary Jurisdiction
Mercedes also argues the Complaint should be dismissed in deference
to CARB under the prudential primary jurisdiction doctrine. It
walks through the factors that are traditionally considered in this
area: In short, the need to resolve an issue placed by Congress
with the jurisdiction of an administrator with a comprehensive
regulatory scheme requiring expertise or uniformity. Mercedes makes
a superficially convincing case for why that applies.
Yet declining jurisdiction under this doctrine is inappropriate,
for similar reasons as to why equitable abstention is unjustified,
Judge Seeborg holds. Mercedes' argument would justify declining
jurisdiction in nearly every case involving the auto industry, and
a host of others. This doctrine is reserved for a "limited set of
circumstances" that "'requires resolution of an issue of first
impression, or of a particularly complicated issue that Congress
has committed to a regulatory agency.'" The existence of an
administrative agency with a mandate from Congress does not mean
jurisdiction should be declined in the normal case; as is the
situation in the case. Further, "common sense tells that even when
agency expertise would be helpful, a court should not invoke
primary jurisdiction when the agency is aware of but has expressed
no interest in the subject matter of the litigation." CARB has not
objected to the case proceeding. To the contrary, it submitted a
declaration for the Plaintiff.
4. Remedies at Law
Another reason the Plaintiff's Complaint should be dismissed,
Mercedes argues, is because she has an adequate remedy at law. The
Plaintiff responds that the order on the previous motion to dismiss
decided this issue, and there is no reason to revisit it.
Judge Seeborg determines that it is not clear the Plaintiff indeed
has an adequate remedy at law, so Mercedes' motion cannot be
granted on this basis. In addition, there are likely some Mercedes
owners who do not perform a repair because it is not covered by the
warranty, or at least delay it, which would lead to environmental
harm. Thus, assuming the Plaintiff is correct about at least one
part, and the factual inferences must be drawn in her favor for
this motion, there is real environmental harm.
5. Knowledge or Reliance
Mercedes also argues the Plaintiff's UCL and CLRA claims should be
dismissed because she has not sufficiently pled that Mercedes knew
its parts list was incomplete, or that the Plaintiff relied on any
misrepresentation or omission about the high-priced parts warranty.
It notes it obtained CARB's approval for its list.
That does not show Mercedes lacked knowledge that its list was
incomplete, Judge Seeborg holds. Indeed, he finds that the
Plaintiff avers that Mercedes knew it had omitted parts, at least
after a certain date. The Plaintiff adequately pleads at least the
possibility that Mercedes knew its representations were false,
which is all these statutes require. As to reliance, the Plaintiff
may not be able to prove there was reliance. Yet the "single
allegation" he makes is enough to survive a motion to dismiss, as
all facts must be inferred in favor of the nonmoving party. Indeed,
this was ruled on in the prior MTD order.
6. Standing for Unpurchased Vehicles and Repairs
Next on Mercedes' list of reasons why the Complaint should be
dismissed, at least in part, is that the Plaintiff asserts claims
on behalf of all Mercedes owners who bought vehicles with
misclassified parts. This is effectively a motion to reconsider, as
the purpose of the previous motion for leave to amend was to
clarify that the Plaintiff could make claims for all purportedly
misclassified parts. The cases Mercedes cites are inapposite;
indeed they actually support the Plaintiff's position, e.g., she
suffered a "similar or same injury," that is, Mercedes
misclassifying part, and as a named Plaintiff she personally
sustained some direct injury as a result of the challenged
conduct.
7. Non-California Class Members
Mercedes also frames an issue around the non-California class
members. The Plaintiff's SAC asserts claims on behalf of purchasers
in 12 states outside California. Mercedes argues Mazza forecloses
the Plaintiff sweeping these consumers into this suit, because it
held that under California's choice of law rules, "each class
member's consumer protection claim should be governed by the
consumer protection laws of the jurisdiction in which the
transaction took place." Mercedes notes, it is headquartered in
Delaware. It argues that there is no nexus between the
misrepresentations and California.
Judge Seeborg finds multiple clear nexuses between California and
the other states: Each state at issue chose to use California's
Emissions Warranty law; Mercedes chose to incorporate California's
emissions warranty into its warranty in other states; and Mercedes
allegedly made misrepresentations to California's regulator, CARB.
Further, as the Plaintiff points out, there is no credible
allegation that these other states would choose to apply their own
consumer protection law in this situation, given that they have
already chosen to piggyback off California's consumer protection
law. California and the other states each have an interest in
having California's law interpreted correctly: Their interests are
not in tension, and even if they must be balanced, California's
outweighs the other states'.
8. Defect in Materials or Workmanship
Mercedes next argues the Plaintiff does not allege facts showing
that the defects were from materials or workmanship, and the
product warranty was limited to those defects, i.e., not design
defects. The Plaintiff responds that the California Emissions
Warranty covers both design defects and materials and workmanship
defects. Mercedes, in turn, contends that the warranty it provided
to customers does not mention design defects. Yet Mercedes
incorporated the California Emissions Warranty into its own
warranty, and California's includes design defects. Reading the
facts in the light most favorable to the Plaintiff, as required,
Judge Seeborg holds that the Plaintiff has framed her case so that
either type of defect would qualify.
9. Vacuum Pump
Finally, Mercedes argues that the Plaintiff alleges no facts
showing that the vacuum pump should have been covered by the
high-priced warranty. To the contrary, the Plaintiff asserts that
this part's failure causes the check engine light to illuminate,
which seems to be enough for CARB (per its declaration). Mercedes
is understandably confused as to how CARB can assert this position,
which may sweep nearly every part into the high-priced warranty,
and conflicts with CARB's approving a list without it, but that is
a question to answer down the road. Hence, the Plaintiff's
assertions regarding the vacuum pump are sufficient for this stage
of litigation.
IV. Conclusion
For the reasons he set forth, Judge Seeborg grants Mercedes's
motion to strike the filed SAC. He directs the Plaintiff to file
the originally proposed SAC within two days. Mercedes' MTD is
denied.
A full-text copy of the Court's June 15, 2022 Order is available at
https://tinyurl.com/2fc94ntn from Leagle.com.
MERRILL GARDENS: Ramirez Has Leave to File First Amended Complaint
------------------------------------------------------------------
In the case, MARIA BUSTOS RAMIREZ, Plaintiff v. MERRILL GARDENS,
LLC, Defendant, Case No. 1:22-cv-00542-DAD-SAB (E.D. Cal.),
Magistrate Judge Stanley A. Boone of the U.S. District Court for
the Eastern District of California grants the Plaintiff leave to
file a first amended complaint
On April 18, 2022, the Defendant removed the putative class action
from the Superior Court of the State of California for the County
of Los Angeles to the Central District of California. The action
was transferred to the Eastern District of California on May 5,
2022. A scheduling conference is set for Aug. 18, 2022.
On June 13, 2022, the parties filed a stipulated motion requesting
leave for the Plaintiff to file a first amended complaint that adds
an additional cause of action for civil penalties under
California's Private Attorneys General Act of 2004.
Judge Boone finds good cause to grant the stipulated motion.
Accordingly, he grants the stipulated motion for leave to amend.
The Plaintiff is granted leave to file a first amended complaint.
The Plaintiff will file the proposed amended complaint within five
days of entry of the Order. The Defendant will file a responsive
pleading to the first amended complaint within 21 days of filing of
the first amended complaint on the docket.
A full-text copy of the Court's June 14, 2022 Order is available at
https://tinyurl.com/3a5zsx4w from Leagle.com.
META PLATFORMS: Settles Class Action Lawsuit Over BIPA Violations
-----------------------------------------------------------------
local12.com reports that some Facebook users are finding checks for
$397 in their mailboxes.
Following a seven-year class action lawsuit against Meta, 1.4
million people are entitled to compensation.
The suit alleges that the company broke the Illinois Biometric
Information Privacy Act by collecting and storing user's biometric
data without their consent.
Biometric data is information related to physical characteristics,
and includes things like facial images and face or fingerprint
scans.
A judge approved a $650 million settlement in February of 2021.
To receive payment, you must be, or have been, a Facebook user in
the State of Illinois for at least six months.
However, not every user from Illinois is included in the payout.
Those who were affected should have received a notice via Facebook
or email.
You must have filed a claim form by November 23, 2020 to receive a
payout. [GN]
MILWAUKEE ELECTRIC: Confer Sues Over Mislabeled Abrasive Wheels
---------------------------------------------------------------
DUSTIN CONFER, individually and on behalf of all others similarly
situated, Plaintiff v. MILWAUKEE ELECTRIC TOOL CORPORATION,
Defendant, Case No. 2:22-cv-02219-HLT-ADM (D. Kan., June 13, 2022)
is a class action claim arising from the deceptive business
practices of Defendant in the advertising, packaging, and labeling
of a bonded abrasive wheel product ("Defective Product") that was
manufactured, produced, distributed, and sold by the Defendant.
The Plaintiff alleges in the complaint that the Defendant sold the
Defective Product to the Plaintiff and other reasonable consumers
without adequate advertising, packaging, and labeling that
identified that the abrasive wheel product had a shelf life or
expiration date after which the product could not be safely used
due to risk that the product may give way, crack, split, explode,
and fail if used after its shelf life.
Had the Plaintiff known that the Defective Products had an
expiration date or shelf life, he would not have purchased them or
would have paid significantly less for the product, says the suit.
MILWAUKEE ELECTRIC TOOL CORPORATION manufactures portable electric
power tools and accessories. The Company offers hoists, drills,
heat guns, saws and cutters, screwdrivers, vacuums, and other
related accessories. Milwaukee Electric Tool serves electricians,
plumbers, carpenters, builders, welders, cabinet makers, and
maintenance personnel worldwide. [BN]
The Plaintiff is represented by:
Paul D. Anderson, Esq.
HUMPHREY, FARRINGTON, & McCLAIN, P.C.
221 W. Lexington, Suite 400
Independence, MO 64050
Telephone: (816) 836-5050
Facsimile: (816) 836-8966
Email: pda@hfmlegal.com
MOM ENTERPRISES: Case Management Order Entered in Murphy Suit
-------------------------------------------------------------
In the class action lawsuit captioned as AERIN MURPHY v. MOM
ENTERPRISES, LLC, Case No. 5:22-cv-01205-BLF (N.D. Cal.), the Hon.
Judge Beth Labson Freeman entered a case management order as
follows:
Event Date
-- Last Day to Request Leave 60 Days from Date of
to Amend the Pleadings per this Order
F.R.Civ.P 15
-- Last Day File Motion Class March 23, 2023
Certification
-- Last Day to Hear Dispositive Feb. 29, 2024
Motions:
-- Final Pretrial Conference: July 6, 2024
Mom is a manufacturer of All Natural products for pregnant women,
new mothers, and infants.
A copy of the Court's order dated June 21, 2022 is available from
PacerMonitor.com at https://bit.ly/3tVPPBo at no extra charge.[CC]
MULLEN AUTOMOTIVE: Faces Class Action Over Misleading Statements
----------------------------------------------------------------
The Deep Dive reports that a class action suit was filed against
Mullen Automotive, Inc. (Nasdaq: MULN) on June 13 claiming the firm
"made materially false and misleading statements."
The suit heavily banks on the report released on April 6 by short
seller Hindenburg Research which enumerated a myriad of reasons why
it believes the electric vehicle manufacturer is all about grand
promises but had "little to back them up."
"On this news, Mullen's stock price fell $0.27 per share, or 10%,
to close at $2.38 per share on April 7, 2022, on unusually heavy
trading volume, damaging investors," said Portnoy Law Firm, the law
firm filing the suit.
Following the announcement of the suit, Mullen's shares immediately
fell 12% when the market opened, dangerously close to trading below
the US$1.00 limit.
Smoke and mirrors: The solid-state battery promise
The Hindenburg report largely hinges on Mullen's claims regarding
its solid-state battery technology. The piece pointed out in
particular the company's announcement on February 28 of the battery
testing results, yielding "343 Ah at 4.3 volts."
"The test data collected shows an impressive outcome and future for
solid-state batteries. To sum up, we tested our 300 Ah
(ampere-hour) cell which yielded 343 Ah at 4.3 volts, and the
results surpassed all expectations," Mullen CEO David Michery said
in the February press releases. "We can say with almost certainty
that this technology, once implemented on the Mullen FIVE, will
deliver over 600 miles of range on a full charge."
The announcement sent the stocks soaring 145%.
According to the research firm, this was a rehash of the results
produced by the same independent contractor, EV Grid, back in
August 2020.
The firm reached out to EV Grid CEO Tom Gage about the press
release, to which he replied that his firm has "more or less ceased
operations by June or July of 2020."
"No we would never have said that. We never did say it and
certainly wouldn't have said it based on the results of testing
that battery," Gage said to Hindenburg.
But in an interview on Risk on Show podcast, Gage clarified his
statements to the research firm after the report came out, saying
"it was a [legitimate test]."
"Well, I had a little trouble remembering when I was talking to the
reporter and also because it sounded he may have been questioning
wether we tested the battery at all," Gage said. "And if I gave him
that impression that was erroneous, we did test the battery on one
cycle and we give them the results. Any idea saying that we didn't
tested it is wrong."
Gage further reiterated that the test results showed that the
battery "had 343 of capacity," however, it wasn't clear if there
were two tests done that would've warranted the second press
release in February 2022.
Further claims made by Mullen and Michery about the promise of its
solid-state battery technology have been debunked by Hindenburg in
its report, including the announcement of a joint venture with
Ukrainian firm NextMetals Ltd.
In an interview with Hindenburg, a senior NextMetals executive said
the joint venture "didn't exist".
"Not a single piece of paper. And he proudly goes and shows the
tweet—and about that time was when [the NextMetals
representatives] did get up and walk out," the executive said.
Doubts have been raised as well about the feasibility of achieving
commercial level for the battery technology "in the next 18 to 24
months"–as the automaker would claim. In its fiscal year 2021,
the firm reported US$3.0 million in its R&D budget.
For comparison, solid-state technology competitor Quantumscape
spent US$151.5 million in R&D for full-year 2021. It anticipates to
commercialize production in 2024-2025.
Just on May 31, Mullen released the results of another battery
testing done with Battery Innovation Center. Testing at the same
rate of 300 Ah and 3.7 volts, the recent results came in at 343.28
Ah at 4.2 volts, exceeding "previously stated values" with EV
Grid.
"I was very interested in seeing how the original cell that was
tested by EV Grid would hold up to testing done by a major facility
like Battery Innovation Center (BIC)," Michery said in an interview
following the new test results. "I took the same cell from 2 years
ago and now I'm providing additional 5 cells to do a battery of
different tests. These tests are being done because I want them
done."
Michery further stated that once the technology achieves commercial
viability, he plans to "license it out to everybody."
Major Fortune 500: The mystery purchases
Hindenburg also dug into the previously announced major purchases
of Mullen models in the pipeline. In particular, the research dove
into a "major Fortune 500" client for which the automaker will be
developing two van models.
"No, no, we're actually building for them. So, we're, we're
excited. We're going to deliver the pilot vehicles to them in the
second quarter, as we stated, and we're excited about it. This is a
major major Fortune 500 company, I'll put it that way," Michery
said in a Benzinga interview on March 30.
The announcement caused the shares to spike around 35% intraday.
While Michery claims that production will be homegrown–or as he
puts it, "show the world that the dependency on outside entities no
longer exists"–Hindenburg pulled out import records that the
company imported the two van models from China. [GN]
NATIONAL SECURITY GROUP: Faces Cohen Shareholder Suit
------------------------------------------------------
The National Security Group, Inc. disclosed in its Form 8-K Report
for the current report dated June 7, 2022, filed with the
Securities and Exchange Commission on June 7, 2022, that on April
14, 2022, a putative class action complaint was filed against the
company and its directors by a purported stockholder of the company
on behalf of himself and all similarly situated holders of common
stock of the company in the Delaware Court of Chancery styled as
"Edward Cohen v. Walter P. Wilkerson, et al.," C.A. No.
2022-0333-LWW.
The complaints seek to enjoin the stockholders' vote on the
approval of a proposed merger with VR Insurance Holdings, Inc. and
its subsidiary, VR Insurance Merger Sub, Inc. until the company
provides certain disclosures that the complaints allege constitute
material information that was omitted from the its preliminary
proxy statement. The company also received letters from attorneys
for purported stockholders requesting disclosure of additional
information in the preliminary proxy statement.
The complaints and the letters demand disclosure of financial
projections and operating data that management disclosed to Piper
Sandler & Co. (PSC) in support of its fairness opinion to the board
as well as other information relating to the financial analysis
performed by PSC as the company's financial adviser with respect to
the merger. The complaints and letters also allege that the
preliminary proxy statement failed to disclose facts that may have
caused the process for the prospective sale of the company to be
flawed.
The National Security Group, Inc. is an insurance company based in
Alabama.
NATIONAL SECURITY GROUP: Faces Dyke Securities Class Suit
----------------------------------------------------------
The National Security Group, Inc. disclosed in its Form 8-K Report
for the current report dated June 7, 2022, filed with the
Securities and Exchange Commission on June 7, 2022, that in May 10,
2022, a complaint was filed against the Company and its directors
by a purported stockholder in the U.S. District Court for the
Southern District of New York styled as "James Dyke v. The National
Security Group, Inc, et al.," No. 1:22-cv-03796.
The complaints seek to enjoin the stockholders' vote on the
approval of a proposed merger with VR Insurance Holdings, Inc. and
its subsidiary, VR Insurance Merger Sub, Inc. until the company
provides certain disclosures that the complaints allege constitute
material information that was omitted from the its preliminary
proxy statement. The company also received letters from attorneys
for purported stockholders requesting disclosure of additional
information in the preliminary proxy statement.
The complaints and the letters demand disclosure of financial
projections and operating data that management disclosed to Piper
Sandler & Co. (PSC) in support of its fairness opinion to the board
as well as other information relating to the financial analysis
performed by PSC as the company's financial adviser with respect to
the merger. The complaints and letters also allege that the
preliminary proxy statement failed to disclose facts that may have
caused the process for the prospective sale of the company to be
flawed.
The National Security Group, Inc. is an insurance company based in
Alabama.
NAVIENT SOLUTIONS: Summary Judgment in Panzarella TCPA Suit Upheld
------------------------------------------------------------------
In the case, ELIZABETH PANZARELLA; JOSHUA PANZARELLA, Individually
and on behalf of all others similarly situated, Appellants v.
NAVIENT SOLUTIONS, INC., Case No. 20-2371 (3d Cir.), the U.S. Court
of Appeals for the Third Circuit affirms the District Court's grant
of summary judgment for Navient.
I. Introduction
Elizabeth and Joshua Panzarella sued Navient, claiming that, among
other things, Navient violated the Telephone Consumer Protection
Act of 1991, 47 U.S.C. Section 227 (the "TCPA"). The Panzarellas
assert that Navient called their cellphones without their prior
express consent using an automatic telephone dialing system
("ATDS") in violation of section 227(b)(1)(A)(iii) of the TCPA.
The District Court granted summary judgment for Navient. It
concluded that Navient's dialing technology did not qualify as an
ATDS under section 227(a)(1) of the TCPA because it viewed a
particular component of Navient's dialing technology as separate
from its dialing system. As a result, it erred by failing to
consider whether Navient's dialing "equipment" as a whole qualified
as an ATDS. Even though the Third Circuit does not decide whether
Navient's dialing equipment qualified as an ATDS, it finds that
Navient did not use an ATDS in violation of the TCPA when it called
the Panzarellas.
II. Background
Navient serviced the student loans of Matthew Panzarella,
Elizabeth's son and Joshua's brother. Matthew listed both his
mother and brother as references on student loan applications and
promissory notes and, in doing so, provided their cell phone
numbers to Navient. Eventually, he became delinquent on his loans
and failed to respond to Navient's attempts to communicate with
him. In response, Navient contacted the Panzarellas. Call logs show
that, over five months, Navient called the phone number alleged to
belong to Elizabeth four times (three of which were unanswered, and
one of which may have been answered) and the number alleged to
belong to Joshua fifteen times (all unanswered).
During the relevant period, Navient used telephone dialing software
developed by Interactive Intelligence Group, Inc. ("ININ"), the
"Interaction Dialer." This software allows a user to "conduct
campaigns" during which "calls are placed to contacts based upon
information read from a contact list." For each campaign, the user
may opt to use one of several dialing methods, which employ varying
levels of automation. For example, in "Preview" mode, call center
agents initiate calls, while, in modes such as "Predictive" and
"Power," the Interaction Dialer automatically dials telephone
numbers.
The Interaction Dialer cannot conduct campaigns on its own.
Instead, it "is deployed across servers and workstations that
collectively make up the system." Three servers are required: The
Outbound Dialer Server, the Central Campaign Server, and a database
server. During a campaign these three servers work together to make
and process outbound calls.
As is relevant in the case, in its configuration of the Interaction
Dialer (the "ININ System"), Navient used a database server managed
by Microsoft SQL Server. The server performs two key functions for
the ININ System. First, it stores a list of numbers associated with
student loan accounts that have specific attributes (e.g., type of
loan, stage of delinquency). Second, it plays a role in outbound
calling campaigns, relaying the stored telephone numbers to the
ININ System's other servers to enable the System to dial them.
The appeal concerns whether Navient used the ININ System in
violation of the TCPA. The Panzarellas filed a putative class
action complaint against Navient in the U.S. District Court for the
Eastern District of Pennsylvania, alleging that Navient used an
ATDS to call their and others' cellphones without their prior
express consent in violation of section 227(b)(1)(A)(iii) of the
TCPA. They sought injunctive relief and statutory damages under
section 227(b)(3) of the TCPA as well as an award of attorneys'
fees and costs on an equitable basis.
Navient sought summary judgment, arguing, among other things, that
the Panzarellas' "TCPA claims fail[ed]" because Navient did not
call them "us[ing] an ATDS[.]" App. 62-63. It claimed it could not
have done so as its ININ System did not qualify as an ATDS under
section 227(a)(1) of the TCPA. It contended that, because this
system lacked the capacity to generate random or sequential
telephone numbers and then dial those numbers, it could not be an
ATDS.
The District Court granted summary judgment for Navient holding
that Navient did not use an ATDS to place the calls at issue. It
determined that Navient's ININ System lacked the necessary present
capacity to store or produce telephone numbers using a random or
sequential number generator. It reasoned, relying largely on the
characterization of such a database server contained in the
Interaction Dialer's manual, that the SQL Server was distinct from
the ININ dialing system. Consequently, the District Court found
that the Panzarellas had adduced "no evidence to suggest that the
ININ dialing system on its own is an ATDS" and granted Navient's
motion for summary judgment on the Panzarellas' TCPA claims.
The Panzarellas timely appealed their TCPA claims and seek reversal
only of the District Court's grant of summary judgment for Navient
on these claims.
III. Discussion
A.
The Panzarellas asserted that Navient violated section
227(b)(1)(A)(iii) by using an ATDS to call them without their prior
express consent. As noted above, the District Court disagreed,
concluding that Navient's dialing system, the ININ System, was not
an ATDS as defined by section 227(a)(1). The District Court's
conclusion, however, rested on its misinterpretation of the TCPA's
ATDS definition, in particular the meaning of "equipment."
The Third Circuit find sthat the District Court erred in holding
that Navient's dialing system was not an ATDS because it viewed the
SQL Server's capacities as distinct from the ININ System's. Navient
relied on the SQL Server alongside the ININ System's other
components to conduct dialing campaigns. This server not only
stored the telephone numbers that Navient contacted during
campaigns, but it also communicated with the ININ System's other
servers, so the system could call them. Indeed, the Interaction
Dialer's manual confirms that this dialer cannot conduct these
campaigns without a database server, like the SQL Server.
Navient points out that Microsoft rather than ININ developed the
SQL Server, and this server resides on its own dedicated hardware.
But this does not matter. As the TCPA requires it to consider
whether all the devices employed together to conduct dialing
campaigns constitute an ATDS, the Third Circuit concludes that
Navient's "equipment" includes the SQL Server. Because the District
Court determined that Navient's dialing system was not an ATDS only
after it excluded the SQL Server from this system, it cannot affirm
the District Court's grant of summary judgment on these grounds.
B.
Still, Navient insists that we should find that the ININ System,
including the SQL Server, could not qualify as an ATDS under
section 227(a)(1). It claims that, in its recent decision Facebook,
Inc. v. Duguid, 141 S.Ct. 1163 (2021), the Supreme Court held that
a dialing system "must presently and actually use a random and
sequential telephone number generator" to qualify as an ATDS.
Navient contends that the record contains no evidence that the ININ
System actually generated random or sequential telephone numbers,
and, therefore, because it did not use an ATDS, it is still
entitled to summary judgment.
The Third Circuit disagrees. It says, under section 227(a)(1),
whether "equipment" qualifies as an ATDS turns on that equipment's
"capacity" to employ a random or sequential number generator to
store or produce telephone numbers, not its actual use of a such a
generator. The Third Circuit has held that, for a dialing system to
qualify as an ATDS, it need only have the "present capacity to
function as an autodialer by generating random or sequential
telephone numbers and dialing those numbers. There is conflicting
evidence in the record concerning the "present capacity" of the
entire ININ System (inclusive of the SQL Server) to employ random-
or sequential-number generation to store or produce telephone
numbers. For this reason, it cannot hold that ININ System does or
does not qualify as an ATDS.
C.
While the District Court erred in granting summary judgment based
on whether the ININ System qualified as an ATDS, summary judgment
may still have been properly granted if the Third Circuit finds the
record makes clear that, when Navient called the Panzarellas, it
did not "make these calls using any ATDS." That is so because a
violation of section 227(b)(1)(A)(iii) requires proof that the
calls at issue be made "using" an ATDS. This issue turns not on
whether Navient's dialing equipment was an ATDS but on whether
Navient violated the TCPA when it employed this dialing equipment
to call the Panzarellas.
The Third Circuit opines that as the record contains no evidence
that Navient used the ININ System to randomly or sequentially
produce or store the Panzarellas' cellphone numbers and therefore
no evidence that Navient made a telephone call using an ATDS in
violation of the TCPA, Navient is entitled to summary judgment on
the Panzarellas' TCPA claims.
IV. Disposition
Because, even if Navient's ININ System qualified as an ATDS under
the TCPA, the Third Circuit holds that there is no genuine issue of
material fact as to whether Navient called the Panzarellas'
cellphones without their consent "using an ATDS" in violation of
section 227(b)(1)(A)(iii) of the TCPA. It therefore affirms the
District Court's grant of summary judgment on these alternate
grounds.
A full-text copy of the Court's June 14, 2022 Opinion is available
at https://tinyurl.com/2p89fuwy from Leagle.com.
James A. Francis -- jfrancis@consumerlawfirm.com -- David A.
Searles -- dsearles@consumerlawfirm.com -- Francis Mailman
Soumilas, in Philadelphia, Pennsylvania.
David P. Mitchell, [ARGUED] Maney & Gordon, in Tampa, Florida.
Robert P. Cocco -- bob.cocco@phillyconsumerlaw.com -- Robert P.
Cocco, P.C., in Philadelphia, Pennsylvania, Counsel for the
Appellants.
Alan J. Butler -- alan@butlerlegalpllc.com -- Megan Iorio,
Christopher Frascella, in Washington, D.C., Counsel for the
Amicus/Appellants.
Lisa M. Simonetti -- simonettil@gtlaw.com -- [ARGUED] Greenberg
Traurig, in Los Angeles, California.
Lindsay N. Aherne -- ahernel@gtlaw.com -- Greenberg Traurig, in
Denver, Colorado.
Joel M. Eads -- eadsj@gtlaw.com -- Greenberg Traurig, in
Philadelphia, Pennsylvania, Counsel for the Appellee.
NESTLE USA: Infant Formula Not Nutritionally Appropriate, Suit Says
-------------------------------------------------------------------
Melissa Garza individually and on behalf of all others similarly
situated v. Nestle USA, Inc., Case No. 1:22-cv-03098 (N.D. Ill.,
June 14, 2022) alleges that Nestle manufactured, identified,
distributed, marketed, and sold Gerber Good Start Grow infant
formula by expressly and impliedly warranted to Plaintiff and class
members that it possessed functional, nutritional, organoleptic,
sensory and/or qualitative attributes which it did not.
According to the complaint, the Defendant directly marketed the
Product to Plaintiff and consumers through its advertisements and
marketing, through various forms of media, on the packaging, in
print circulars, direct mail, product descriptions distributed to
resellers, and targeted digital advertising. The Defendant
allegedly knew the product attributes that potential customers like
Plaintiff were seeking and developed its marketing and labeling to
directly meet those needs and desires. The Defendant's
representations about the Product were conveyed in writing and
promised it would be defect-free, and Plaintiff understood this
meant that it was nutritionally appropriate for a child between
twelve and twenty-four months, says the suit.
Nestle USA, Inc. manufactures, markets, and sells milk-based powder
with iron (infant formula) to non-infants, designated as Gerber
Good Start Grow (Product).
The American Academy of Pediatrics (AAP) recommends "exclusive
breastfeeding for the first 6 months of life with the addition of
complementary foods and the continuation of breastfeeding until at
least 12 months of age."
The transition beyond the first twelve months is "critical for
establishing healthy dietary preferences and preventing obesity in
children."
The Defendant's Good Start Grow, marketed for children between
twelve and twenty-four months old, recognizes the importance of
this period in early development.
The formula trade group, Infant Nutrition Council of America, which
includes the manufacture of Gerber Good Start Grow, stated that
"transition formulas" can be used to fill nutrition gaps beyond 12
months.
However, a global consensus of pediatric health organizations,
including the AAP Committee on Nutrition and the relevant
Sub-Committee of the World Health Organization (WHO) reached the
opposite conclusion. These groups advise that beyond twelve months,
children's nutritional needs should be met with whole cow's milk,
water, and healthy whole foods as part of a balanced diet, and that
transition formula "is not recommended," added the suit.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Rd Ste 412
Great Neck NY 11021
Telephone: (516) 268-7080
E-mail: spencer@spencersheehan.com
NISSAN CANADA: Court Approves CVT Class Action Settlement
---------------------------------------------------------
Nissan Canada and class counsel on June 15 announced that a class
action settlement in Canada, excluding Quebec, has been approved by
the Court to resolve issues relating to allegations of failures of
Continuously Variable Transmissions (CVT) in the following Nissan
vehicles: 2013-2016 Nissan Altima, 2013-2017 Nissan Juke, 2013-2017
Nissan Sentra, 2012-2014 Nissan Versa and 2014-2017 Nissan Versa
Note.
While Nissan completely denies any and all wrongdoing or liability,
its priority in reaching the settlement is to ensure customer
satisfaction and demonstrate confidence in its vehicles.
The class actions were certified on December 3, 2021 and the
settlement was approved by the Court on March 31, 2022. The parties
agreed to settle the Nissan CVT class actions in Canada, excluding
Quebec, on a without prejudice or admission basis, by way of mutual
concessions.
Details about the class action settlement and available benefits
can be found at www.cvtsettlementcanada.ca, or by contacting the
Settlement Administrator at 1-888-890-6624 or
cvtsettlement@ricepoint.com.
For more information about legal rights under the settlement,
owners/lessees of Altima and Juke vehicles may contact class
counsel by calling 1-800-213-8143 or emailing
nissan@investigationcounsel.com. Owners/lessees of Sentra, Versa
and Versa Note vehicles may contact class counsel by calling
1-877-736-2345 or emailing nissan@merchantlaw.com. [GN]
NUTRABIO LABS: Dietary Supplements Misbranded, Helems Suit Alleges
------------------------------------------------------------------
JESSE HELEMS, on behalf of all those similarly situated v. NUTRABIO
LABS, INC., a New Jersey corporation, Case No.
3:22-cv-00870-BTM-AHG (S.D. Cal. June 14, 2022) alleges that
certain products manufactured, packaged, labeled, advertised,
distributed and sold by the Defendant are misbranded and falsely
advertised in California and nationwide and otherwise violate
California law.
NutraBio formulates, manufactures, and sells a number of lines of
dietary supplements and powders that are meant to support workout,
bodybuilding, and other health and fitness goals.
On January 3, 2022, Helems purchased a 30-serving container of
NutraBio's Extreme Nitric Stack, Blood Orange flavor, from
third-party retailer GNC Nutrition for $49.98. Extreme Nitric Stack
is a dietary supplement meant to promote muscle growth in
bodybuilders and other athletes. It comes in two flavors (blood
orange and kiwi strawberry).
NutraBio also sells other products designed to promote muscle
growth and make workouts more efficient, including IntraBlast
(three relevant flavors: sweet tea, dragon fruit candy, and 25
strawberry lemon bomb); Micellar Casein (one relevant flavor:
strawberry ice cream); and Extreme Mass (one relevant flavor:
strawberry pastry).
To appeal to consumers who seek out natural food products and are
willing to pay more for them, Defendant labels and advertises the
Products as if they were exclusively naturally flavored. For
example, the label of the Extreme Nitric Stack product purchased by
Plaintiff states prominently that it uses "Natural Flavoring," and
includes a depiction of a blood orange. By changing the ratio
between sugars and acids that is naturally found in fruits such as
blood oranges, the d-l malic acid used in the Product reinforces,
stimulates, or enhances the characterizing flavors, regardless of
any other effect it may have or purpose for which it was included,
the suit says.
D-l malic acid is not a "natural flavor" as this term is defined by
federal and state regulations and is not derived from a fruit or
vegetable or any other natural source. The Products therefore
contain artificial flavorings, the suit adds.
The Plaintiff brings this action individually and as representative
of all those similarly pursuant to Federal Rule of Civil Procedure
23 on behalf of all persons with the State of California who
purchased the Products within four years prior to the filing of
this Complaint.[BN]
The Plaintiff is represented by:
Charles C. Weller, Esq.
CHARLES C. WELLER, APC
11412 Corley Court
San Diego, CA 92126
Telephone: (858) 414-7465
Facsimile: (858) 300-5137
E-mail: legal@cweller.com
OARS + ALPS: Faces Class Action Over "Natural" Claims
-----------------------------------------------------
Corrado Rizzi, writing for ClassAction.org, reports that a proposed
class action alleges Oars + Alps cosmetic and beauty products are
not as "natural" as consumers have been led to believe.
The 38-page case says that the Oars + Alps products at issue,
despite their labeling, are in fact not natural because they
contain multiple synthetic ingredients, including phenoxyethanol,
dimethicone, caprylyl glycol, potassium sorbate, sodium benzoate,
propanediol, ethylhexylglycerin, and citric acid.
Per the suit, reasonable consumers bought the Oars + Alps items
under the belief that they were accurately represented, and would
not have done so had they known the products were not natural as
their labels suggested. As the case tells it, the apparent
"deception" on the part of defendants S.C. Johnson & Son and Oars +
Alps, LLC is not limited to only the products' labels, but it is
"omnipresent" throughout the companies' "natural" marketing
efforts.
The Oars + Alps products mentioned in the lawsuit include the
company's Natural Deodorant, Natural Face Moisturizer + Eye Cream,
Natural Wake Up Eye Stick with Caffeine, Natural Charcoal Solid
Face Wash, Natural Wake Up Face Serum, and Natural Body + Face
Wash.
According to the complaint, reasonable consumers understand the
term "natural" to mean that a product lacks any synthetic
ingredients. According to a U.S. Department of Agriculture Draft
Guidance Decision Tree for the classification of materials as
either synthetic or natural, a substance is natural if it is made,
produced or extracted from a natural source and has not undergone a
chemical change so that it is chemically or structurally different
than how it occurs naturally. Likewise, a substance is natural if a
chemical change affecting it was created by naturally occurring
biological processes, such as composting, fermentation or burning,
the suit states.
In the same light, the FDA has warned that any "natural" labeling
on products must be "truthful and not misleading," per the case.
The lawsuit alleges that S.C. Johnson and Oars + Alps are aware
that a reasonable consumer would interpret "natural" to mean that a
product is without synthetic ingredients, something the case argues
is "consistently shown with Defendants' public statements,
behavior, and marketing."
"At every step of the way, Defendants want consumers to believe
that the Products are ‘natural,'" the complaint reads, contending
that the plaintiff believed based on the language on every product
label that the items contained only natural ingredients.
According to the filing, the defendants' representations of the
Oars + Alps products as "natural" are false, deceptive and
misleading since the items contain decidedly synthetic ingredients.
The companies, the lawsuit says, failed to disclose anywhere on the
products that the ingredients highlighted on this page are
synthetic, and reasonable consumers would not know that the
ingredients are synthetic.
The case contends that the "natural" marketing of the Oars + Alps
products at issue in a prominent location on each of their labels
"evidences Defendants' awareness" that "natural" claims are
important to consumers.
The lawsuit looks to represent consumers nationwide who bought Oars
+ Alps products within the United States within the applicable
statute of limitations period. [GN]
OKTA INC: Gross Law Firm Reminds of July 19 Deadline
----------------------------------------------------
The Gross Law Firm issues the following notice to shareholders of
Okta, Inc.
Shareholders who purchased shares of OKTA during the class period
listed are encouraged to contact the firm regarding possible lead
plaintiff appointment. Appointment as lead plaintiff is not
required to partake in any recovery.
CONTACT US HERE:
https://securitiesclasslaw.com/securities/okta-inc-loss-submission-form/?id=28544&from=4
CLASS PERIOD: March 5, 2021 to March 22, 2022
ALLEGATIONS: The complaint alleges that during the class period,
Defendants issued materially false and/or misleading statements
and/or failed to disclose that: (i) Okta had inadequate
cybersecurity controls; (ii) as a result, Okta's systems were
vulnerable to data breaches; (iii) Okta ultimately did experience a
data breach caused by a hacking group, which potentially affected
hundreds of Okta customers; (iv) Okta initially did not disclose
and subsequently downplayed the severity of the data breach; (v)
all the foregoing, once revealed, was likely to have a material
negative impact on Okta's business, financial condition, and
reputation; and (vi) as a result, the Company's public statements
were materially false and misleading at all relevant times.
DEADLINE: July 19, 2022 Shareholders should not delay in
registering for this class action. Register your information here:
https://securitiesclasslaw.com/securities/okta-inc-loss-submission-form/?id=28544&from=4
NEXT STEPS FOR SHAREHOLDERS: Once you register as a shareholder who
purchased shares of OKTA during the timeframe listed above, you
will be enrolled in a portfolio monitoring software to provide you
with status updates throughout the lifecycle of the case. The
deadline to seek to be a lead plaintiff is July 19, 2022. There is
no cost or obligation to you to participate in this case.
WHY GROSS LAW FIRM? The Gross Law Firm is nationally recognized
class action law firm, and our mission is to protect the rights of
all investors who have suffered as a result of deceit, fraud, and
illegal business practices. The Gross Law Firm is committed to
ensuring that companies adhere to responsible business practices
and engage in good corporate citizenship. The firm seeks recovery
on behalf of investors who incurred losses when false and/or
misleading statements or the omission of material information by a
company lead to artificial inflation of the company's stock.
Attorney advertising. Prior results do not guarantee similar
outcomes.
CONTACT:
The Gross Law Firm
15 West 38th Street, 12th floor
New York, NY, 10018
Email: dg@securitiesclasslaw.com
Phone: (646) 453-8903 [GN]
ORACLE CORP: Women Stumble in Pay Bias Suit While Google Cuts Deal
------------------------------------------------------------------
news.bloomberglaw.com reports that Women at Oracle Corp. suing over
alleged pay disparities took a big step backward, while more than
15,000 female workers at Google crossed the finish line.
Under a judge's tentative ruling, the Oracle women are poised to
lose the class-action status they earlier won that gave them
powerful leverage in a five-year court fight with their employer.
Alphabet Inc.'s Google, meanwhile, agreed to pay $118 million to
resolve claims filed under California's Equal Pay Act that the
company pays men more than women for doing the same job.
A California state judge agreed with Oracle on that it would be
unmanageable to proceed to trial with a class of more than 3,000
female employees in 125 different job classifications.
In 2020, the three women leading the suit against Oracle achieved a
milestone by becoming the first to win class-action status in a
discrimination case against a large technology company. Aggregating
claims on behalf of a large group allows plaintiffs to pool
resources and negotiate for a much bigger payout.
Female engineers at both Twitter Inc. and Microsoft Corp. failed to
persuade judges to let their gender-bias cases proceed as class
actions and those rulings were upheld on appeal.
The women suing Google fared better, winning a ruling in 2021 that
allowed the case to advance on behalf of 11,000 women seeking more
than $600 million.
The women said in a court filing that the company paid female
employees approximately $16,794 less per year than a "the similarly
situated man," citing an analysis by an economist at University of
California at Irvine.
The accord announced by lawyers for the plaintiffs covers about
15,500 women at Google in 236 different job titles.
In addition to the settlement fund, an independent expert will
analyze Google's hiring practices and and independent labor
economist will review the company's pay equity studies, Lieff
Cabraser Heimann & Bernstein LLP and Altshuler Berzon LLP said in
the statement. The settlement couldn't be confirmed on the court
docket.
"As a woman who's spent her entire career in the tech industry, I'm
optimistic that the actions Google has agreed to take as part of
this settlement will ensure more equity for women," Holly Pease,
one of the plaintiffs, said in the statement.
The Google deal must be approved by a judge. A hearing on a
preliminary approval is scheduled for June 21, the law firms said.
Alphabet representatives didn't respond after regular business
hours to a request for comment.
In the Oracle case, San Mateo County Superior Court Judge V.
Raymond Swope, who tentatively granted the company's request to
decertify the class, set a hearing on the matter for June 13 in
Redwood City.
Before the 2020 ruling, Oracle argued that the lawsuit wrongly
compares women and men tagged with the same job codes even though
such coding doesn't mean the work requires similar skills, effort
or responsibility, because Oracle's products and services vary so
widely.
Oracle Women Score Major Win in Court Battle Over Equal Pay
Jim Finberg, an attorney representing the women, said he plans to
persuade the judge to change his tentative ruling. If that doesn't
work, "it is fair to say that, at some point, we will appeal the
decision," he said.
An Oracle spokesperson didn't immediately respond to a request for
comment.
The Oracle case is Jewett v. Oracle America Inc., 17-CIV-02669,
California Superior Court, County of San Mateo (Redwood City). The
Google case is Ellis v. Google LLC, CGC-17-561299, California
Superior Court, County of San Francisco.
To contact the reporters on this story:
Malathi Nayak in San Francisco at mnayak21@bloomberg.net;
Robert Burnson in San Francisco at rburnson@bloomberg.net
To contact the editors responsible for this story:
Katia Porzecanski at kporzecansk1@bloomberg.net [GN]
OSCAR HEALTH: Kuznicki Law Reminds of July 11 Deadline
------------------------------------------------------
The securities litigation law firm of Kuznicki Law PLLC issues this
alert to shareholders of Oscar Health, Inc. (NYSE: OSCR), if they
purchased or acquired the Company's Class A common stock pursuant
and/or traceable to the Company's March 2021 initial public
offering (the "IPO"). Shareholders have until July 11, 2022 to file
lead plaintiff applications in the securities class action
lawsuit.
Shareholders are encouraged to contact us at
https://kclasslaw.com/cases/securities/nyse-oscr/https://kclasslaw.com/cases/securities/nyse-hmlp/,
by calling toll-free at 1-833-835-1495 or by email
(dk@kclasslaw.com).
Kuznicki Law PLLC is committed to ensuring that companies adhere to
responsible business practices and engage in good corporate
citizenship. The firm seeks recovery on behalf of investors who
incurred losses when false and/or misleading statements or the
omission of material information by a Company lead to artificial
inflation of the Company's stock. Attorney advertising. Prior
results do not guarantee similar outcomes.
CONTACT:
Kuznicki Law PLLC
Daniel Kuznicki, Esq.
445 Central Avenue, Suite 344
Cedarhurst, NY 11516
Email: dk@kclasslaw.com
Phone: (347) 696-1134
Cell: (347) 690-0692
Fax: (347) 348-0967
https://kclasslaw.com [GN]
OUTSET MEDICAL: Johnson Fistel Investigates Securities Claims
-------------------------------------------------------------
Shareholder rights law firm Johnson Fistel, LLP
(www.JohnsonFistel.com) is investigating whether Outset Medical,
Inc. (NASDAQ: OM ), any of its executive officers, or others
violated securities laws by misrepresenting or failing to timely
disclose material, adverse information to investors. The
investigation focus on investors' losses and whether they may be
recovered under the federal securities laws.
What if I purchased Outset common stock? If you purchased Outset
common stock and suffered significant losses on your investment,
join our investigation now:
Click or paste the following web address into your browser to
submit your losses:
https://www.johnsonfistel.com/investigations/outset-medical-inc
Or for more information, contact Jim Baker at
jimb@johnsonfistel.com or (619) 814-4471
There is no cost or obligation to you.
What is Johnson Fistel investigating? On June 13, 2022, the company
announced that "it has implemented a shipment hold on the
distribution of its Tablo Hemodialysis System for home use pending
the Food and Drug Administration's (FDA) review and clearance of a
510(k) the company submitted for changes made since the device's
original March 2020 clearance."
Following this news, Outset's stock price fell sharply.
What if I have relevant nonpublic information? Individuals with
nonpublic information regarding the company should consider whether
to assist our investigation or take advantage of the SEC
Whistleblower program. Under the SEC program, whistleblowers who
provide original information may, under certain circumstances,
receive rewards totaling up to thirty percent of any successful
recovery made by the SEC. For more information, contact Jim Baker
at (619) 814-4471 or jimb@johnsonfistel.com.
About Johnson Fistel, LLP. Johnson Fistel, LLP is a nationally
recognized shareholder rights law firm with offices in California,
New York and Georgia. The firm represents individual and
institutional investors in securities class action and derivative
lawsuits. For more information about the firm and its attorneys,
please visit http://www.johnsonfistel.com.Attorney advertising.
Past results do not guarantee future outcomes.
Contact:
Johnson Fistel, LLP
Jim Baker, Lead Securities Analyst
Telephone: (619) 814-4471
Email: jimb@johnsonfistel.com [GN]
OVERHEAD DOOR: Villers Sues Over Production Employees' Unpaid OT
-----------------------------------------------------------------
JERRY VILLERS, on behalf of himself and others similarly situated,
Plaintiff v. OVERHEAD DOOR CORPORATION, Defendant, Case No.
5:22-cv-01013 (N.D. Ohio, June 13, 2022) is a class and collective
action complaint brought against the Defendant seeking unpaid
overtime wages and all other available relief under the Fair Labor
Standards Act and the Ohio Minimum Fair Wage Standards Act.
The Plaintiff was employed by the Defendant from approximately 2015
through February 2022 as an hourly, non-exempt production
employee.
According to the complaint, the Defendant did not pay all of the
overtime compensation lawfully earned by the Plaintiff and other
similarly situated production employees. This is because of the
Defendant's improper time clock rounding practice, and failure to
pay for the time they spent retrieving their personal protective
equipment and welding equipment. The Defendant also failed to keep
adequate records of the hours worked by its production employees,
says the suit.
Overhead Door Corporation provides welding services. [BN]
The Plaintiff is represented by:
Shannon M. Draher, Esq.
Hans A. Nilges, Esq.
NILGES DRAHER LLC
7034 Braucher St. N.W., Suite B
North Canton, OH 44720
Tel: (330) 470-4428
Fax: (330) 754-1430
E-mail: sdraher@ohlaborlaw.com
hans@ohlaborlaw.com
PACESETTER PERSONNEL: Seeks to Decertify Class in Villarino
-----------------------------------------------------------
In the class action lawsuit captioned as SHANE VILLARINO, et al.,
v. PACESETTER PERSONNEL SERVICE, INC., et al., Case No.
0:20-cv-60192-AHS (S.D. Fla.), the Defendant asks the Court to
enter an order:
(1) decertifying the Commercial Boulevard Class; or, in the
alternative,
(2) requiring Plaintiffs to produce a trial plan; and
(3) awarding such other and further relief as the Court deems
just and proper.
Pacesetter Personnel Services provide services on three primary
divisions such as general labor, skilled personal & payroll
services.
A copy of the Defendants' motion dated June 21, 2022 is available
from PacerMonitor.com at https://bit.ly/3ncXuY8 at no extra
charge.[CC]
The Plaintiffs are represented by:
Dion J. Cassata, Esq.
CASSATA LAW, PLLC
Boca Crown Centre
7999 North Federal Highway, Suite 202
Boca Raton, FL 33487
Telephone: (954) 364-7803
E-mail: dion@cassatalaw.com
- and -
Andrew R. Frisch, Esq.
MORGAN & MORGAN, P.A.
8151 Peters Road, 4 th Floor
Plantation, FL 33324
Telephone: (954) 967-5377
E-mail: dion@cassatalaw.com
The Defendants are represented by:
Derek E. Leon, Esq.
Ronald J. Tomassi, Jr., Esq.
LEON COSGROVE, LLP
255 Alhambra Circle, 8th Floor
Miami, FL 33134
Telephone: (305) 740-1975
E-mail: dleon@leoncosgrove.com
rtomassi@leoncosgrove.com
- and -
Joel M. Androphy, Esq.
Caroline Gorman, Esq.
BERG & ANDROPHY
3704 Travis Street
Houston, TX 77002
Telephone: (713) 529-5622
E-mail: cgorman@bafirm.com
jandrophy@bafirm.com
PACIFIC STEEL: Oct. 30 Deadline to File Class Cert. Bid Sought
--------------------------------------------------------------
In the class action lawsuit captioned as BRANDON GAY, individually,
and on behalf of the general public similarly situated; ISRAEL
BERBER, individually and on behalf of other aggrieved employees
similarly situated, v. PACIFIC STEEL GROUP, an unknown business
entity; and DOES 1 through 100, inclusive, Case No.
4:20-cv-08442-HSG (N.D. Cal.), the Parties stipulate as follows:
1. The Plaintiff's deadline to move Oct. 30, 2022
for class certification shall be:
2. The Defendant's deadline to file Dec. 29, 2022
an opposition to class
certification shall be:
3. The Plaintiff's Deadline to file Jan. 30, 2022
his reply in support of class
certification shall be:
Pacific Steel provides concrete reinforcing steel bars,
pre-assembled rebar cages, and post tension cables for residential,
commercial and industrial projects.
A copy of the Parties' motion to certify class dated June 21, 2022
is available from PacerMonitor.com at https://bit.ly/3y7WZ75 at no
extra charge.[CC]
The Plaintiffs are represented by:
Edwin Aiwazian, Esq.
Jacob Karczewski, Esq.
LAWYERS for JUSTICE, PC
410 West Arden Avenue, Suite 203
Glendale, CA 91203
Telephone: (818) 265-1020
Facsimile: (818) 265-1021
The Defendant is represented by:
Travis Jang-Busby, Esq.
Clint S. Engleson, Esq.
PROCOPIO, CORY, HARGREAVES & SAVITCH LLP
1117 S California Ave, Suite 200
Palo Alto, CA 94304
Telephone: (650) 645-9000
Facsimile: (619) 235-0398
PAGA MANAGEMENT: Hamel Sues Over Failure to Reimburse Expenses
--------------------------------------------------------------
BRITTANY HAMEL, individually and on behalf of similarly situated
persons, Plaintiff v. PAGA MANAGEMENT GROUP, L.L.C. and STEVEN T.
PALMER, Defendants, Case No. 4:22-cv-00489 (E.D. Tex., June 13,
2022) brings this complaint as a collective action to recover
unpaid minimum wages and overtime pay against the Defendant
pursuant to the Fair Labor Standards Act.
The Plaintiff was employed by the Defendants from approximately
October 2021 to June 2022 as a delivery driver at the Defendants'
Domino's store located in Sherman, TX.
The Plaintiff alleges that the Defendants have applied a flawed
reimbursement policy which reimburses its delivery drivers below
the IRS business mileage reimbursement rate and/or much less than a
reasonable approximation of its drivers' automobile expenses.
Because the Defendants required its delivery drivers to maintain
and pay for safe, legally-operable and insured automobile when
delivering pizza and other food items to the Defendants' customers,
the Plaintiff and other similarly situated delivery drivers have
incurred automobile expenses while working for the primary benefit
of the Defendants. However, their net wages diminished beneath the
federal minimum wage requirements due to the Defendants' flawed
reimbursement policy and methodology, which failed to reflect the
realities of their automobile expenses. Consequently, despite
regularly working more than 40 hours per week, the Plaintiff and
other similarly situated delivery drivers' overtime compensation
were also not properly paid by the Defendants, added the
Plaintiff.
Paga Management Group, L.L.C. operates numerous Domino's Pizza
franchise stores. Steven T. Palmer is the owner and director of the
Corporate Defendant. [BN]
The Plaintiff is represented by:
J. Forester, Esq.
FORESTER HAYNIE PLLC
400 N. St. Paul St., Suite 700
Dallas, TX 75201
Tel: (214) 210-2100
Fax: (469) 399-1070
E-mail: jay@foresterhaynie.com
PEOPLECONNECT INC: Loses Bid for Judgment on Pleadings in Callahan
------------------------------------------------------------------
In the case, MEREDITH CALLAHAN, et al., Plaintiffs v.
PEOPLECONNECT, INC., Defendant, Case No. 20-cv-09203-EMC (N.D.
Cal.), Judge Edward M. Chen of the U.S. District Court for the
Northern District of California denies PeopleConnect's motion for
judgment on the pleadings or, in the alternative, for leave to file
an interlocutory appeal.
I. Introduction
Plaintiffs Meredith Callahan and Lawrence Geoffrey Abraham have
filed a class action against Defendant PeopleConnect. According to
the Plaintiffs, PeopleConnect misappropriated their names,
photographs, and likenesses and used the same in advertising its
products and services, such as "subscription memberships to the
website Classmates.com."
Currently pending before the Court is PeopleConnect's motion for
judgment on the pleadings or, in the alternative, for leave to file
an interlocutory appeal. In essence, PeopleConnect is trying to
resuscitate its argument that the Plaintiffs are collaterally
estopped from arguing that PeopleConnect does not have CDA immunity
(as Judge Beeler held in the similar Ancestry case). In the
alternative, it argues that the issue of immunity under the
Communications Decency Act ("CDA") should be certified for
immediate appeal to the Ninth Circuit.
II. Background
The Plaintiffs initiated the lawsuit in December 2020.
Subsequently, PeopleConnect moved to compel arbitration or for
dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). In
May 2021, the Court denied the motion to compel arbitration. The
following month, PeopleConnect appealed that ruling.
Several months later, in November 2021, the Court denied
PeopleConnect's motion to stay pending appeal. It also addressed
the merits of PeopleConnect's motion to dismiss.
One of the issues raised in the motion to dismiss was whether
PeopleConnect had immunity under the Communications Decency Act
("CDA"). PeopleConnect argued that it did have CDA immunity -- but
first asserted that the merits issue need not be decided because
the Plaintiffs were precluded from contending that PeopleConnect
did not have such immunity. It pointed out that the Plaintiffs had
brought the same basic suit against a different defendant,
Ancestry, and that, in that case, Judge Beeler found that Ancestry
was protected by CDA immunity, citing Callahan v. Ancestry.com
Inc., No. 20-cv-08437-LB, 2021 U.S. Dist. LEXIS 37811 (N.D. Cal.
Mar. 1, 2021) "Ancestry I"); Callahan v. Ancestry, No.
20-cv-08437-LB, 2021 U.S. Dist. LEXIS 112036 (N.D. Cal. June 15,
2021) ("Ancestry II"). In other words, PeopleConnect invoked
defensive collateral estoppel.
The Court rejected PeopleConnect's defensive collateral estoppel
argument for two reasons. First, it had to apply California law on
collateral estoppel and, under California law, there is no final
judgment where a case is on appeal-which was the case in Ancestry
(i.e., Plaintiffs had appealed Judge Beeler's decisions). Second,
the Court held that, even if the technical requirements of
collateral estoppel had been met, "the doctrine is to be applied
only where such application comports with fairness and sound public
policy." The Court concluded that fairness and sound public policy
weighed against application of collateral estoppel because,
although Judge Beeler had found CDA immunity applicable in a
similar case, "other district courts have reached differing
conclusions."
The Court went on to address the merits of the CDA immunity
argument. It took note of the Ninth Circuit's decision in Batzel v.
Smith, 333 F.3d 1018 (9th Cir. 2003), which held that "a service
provider or user is immune from liability under Section 230(c)(1)
when a third person or entity that created or developed the
information in question furnished it to the provider or user under
circumstances in which a reasonable person in the position of the
service provider or user would conclude that the information was
provided for publication on the Internet or other `interactive
computer service.'" The Court then concluded that, "at the very
least, there is a question of fact as to whether a reasonable
person in the position of PeopleConnect (the service provider)
would conclude that the yearbook authors/publishers (the
information content providers) intended the yearbooks to be
published on the internet."
After the Court issued its ruling (in November 2021), the parties
agreed to a stay of proceedings pending PeopleConnect's appeal of
the arbitration decision. PeopleConnect did not ask the Court at
that time for an interlocutory appeal with respect its CDA immunity
ruling -- either with respect to collateral estoppel or with
respect to the merits.
In the meantime, the Plaintiffs' appeal in the Ancestry case was
proceeding. In February 2022, the Ninth Circuit scheduled oral
argument for the Ancestry appeal. But just one week later,
Plaintiffs voluntarily moved to dismiss their appeal. Although
Ancestry opposed the motion, the Ninth Circuit granted it in March
2022 (although the court also awarded Ancestry its costs). Also in
March 2022, the Ninth Circuit issued its decision affirming this
Court's order denying PeopleConnect's motion to compel
arbitration.
On April 11, 2022, the Plaintiffs filed an unopposed motion to lift
the stay on proceedings in the case. The Court lifted the stay on
the same day. The next day, PeopleConnect filed the currently
pending motion. It argues that it is entitled to judgment on the
leadings because of collateral estoppel. PeopleConnect acknowledges
the Court's prior ruling but contends that (1) the Ancestry case is
now final for purposes of collateral estoppel since the appeal has
been resolved and (2) assuming that it is appropriate to consider
equities for defensive collateral estoppel (as opposed to
offensive), the equities now weigh in PeopleConnect's favor because
Plaintiffs chose to voluntarily dismiss the appeal in Ancestry even
though that would have addressed the issue of whether CDA immunity
was appropriate. In the alternative, PeopleConnect asks for an
interlocutory appeal so that it may get the CDA immunity issue
resolved by the Ninth Circuit (as Ancestry had tried to do).
III. Discussion
A. Motion for Judgment on the Pleadings
PeopleConnect argues that the Plaintiffs no longer have plausible
claims because it is now clear that they are collaterally estopped
from disputing that PeopleConnect has CDA immunity. It, in essence,
asks the Court to take judicial notice that the Ancestry case is
now final for purposes of collateral estoppel. PeopleConnect also
asserts that the other elements of collateral estoppel have clearly
been met.
Judge Chen declines to apply defensive collateral estoppel and thus
denies PeopleConnect's motion for judgment on the pleadings. First,
collateral estoppel is an equitable doctrine. That fact alone
suggests fairness/public policy concerns may be considered for
offensive and defensive collateral estoppel alike.
Second, Judge Chen finds persuasive an opinion from Judge Whyte of
this District that favors application of fairness/public policy
considerations in the defensive collateral estoppel context (Hynix
Semiconductor Inc. v. Rambus Inc., No. C-00-20905 RMW, 2009 U.S.
Dist. LEXIS 10944 (N.D. Cal. Feb. 3, 2009)). As Judge Whyte and
others have noted, the unfairness of applying collateral estoppel
in the face of conflicting adjudications is heightened where "'the
issue is one of law and treating it as conclusively determined
would inappropriately foreclose opportunity for obtaining
reconsideration of the legal rule upon which it was based.'"
B. Motion for Interlocutory Appeal
Because he is denying PeopleConnect's motion for judgment on the
pleadings, Judge Chen must address the alternative motion seeking
leave to file an interlocutory appeal pursuant to 28 U.S.C. Sionect
1292(b). The issue for appeal would relate to the merits of the
Court's prior decision rejecting CDA immunity for purposes of
12(b)(6).
According to PeopleConnect, the pure legal question here is whether
there can be CDA immunity "in the absence of evidence that the
original creator of the third-party material intended for that
material to be presented online." Or to state the matter somewhat
differently, the legal question is "whether the yearbooks and
excerpts thereof that PeopleConnect presents in its purported
'advertisements' are necessarily and categorically 'provided by
another content provider' because it is conceded that PeopleConnect
played no role in creating those yearbooks."
Judge Chen denies PeopleConnect's motion for an interlocutory
appeal as well. He notes that, even if there is a pure question of
law in the case, it is -- as defined by PeopleConnect -- fairly
narrow in scope. The narrowness is significant because Section
1292(b) requires that there be a controlling question of law. The
Ninth Circuit has noted that an issue of law is controlling where
resolution of the issue on appeal "could materially affect the
outcome of litigation in the district court." This standard is
somewhat similar to that contained in the third interlocutory
appeal requirement identified -- i.e., that an immediate appeal on
the legal question may materially advance the ultimate termination
of the litigation.
Judge Chen finds that these standards have not been met in the
instant case. As the Plaintiffs point out, even if PeopleConnect
were to prevail on the specific issue it has identified, that still
would not guarantee it CDA immunity because it would still have to
show that it is not an information content provider itself.
Finally, it is worth noting that even the second interlocutory
appeal requirement has not clearly been met in the instant case. To
the extent PeopleConnect suggests that there is some case law
favorable to its position, that position is not well supported. The
cases are largely distinguishable.
IV. Conclusion
For the foregoing reasons, Judge Chen denies PeopleConnect's motion
for judgment on the pleadings, and alternative motion for an
interlocutory appeal. His Order disposes of Docket No. 99.
A full-text copy of the Court's June 14, 2022 Order is available at
https://tinyurl.com/yc722fy2 from Leagle.com.
PSP JOINT: Fails to Pay Wages Under Labor Code, Webber Suit Says
----------------------------------------------------------------
JOHN E. WEBBER, individually and on behalf of all others similarly
situated v. PSP JOINT VENTURE; PACIFIC STATES-SUKUT-P31JV; PACIFIC
STATES ENVIRONMENTAL CONTRACTORS, INC.; SUKUT CONSTRUCTION, INC.;
SUKUT CONSTRUCTION, LLC; and DOES 1-50, inclusive, Case No. (June
14, 2022) alleges that the Defendants failed to pay wages including
overtime as required by the California Labor Code.
The Plaintiff was employed by Defendants in April 2021, as a
Non-Exempt Employee with the title of Equipment Operator and worked
during the liability period for the Defendants until Plaintiff's
separation from Defendants' employ in approximately June 2021.
The Plaintiff's duties included, but were not limited to working on
the excavator, doing fire cleanup.
The Defendants operate as a fire restoration and cleanup business.
The Plaintiff estimates there are in excess of 100 Non-Exempt
Employees who work or have worked for Defendants over the last four
years.[BN]
The Plaintiff is represented by:
James R. Hawkins, Esq.
Gregory Mauro, Esq.
Michael Calvo, Esq.
Lauren Falk, Esq.
Ava Issary, Esq.
JAMES HAWKINS APLC
9880 Research Drive, Suite 200
Irvine, CA 92618
Telephone: (949) 387-7200
Facsimile: (949) 387-6676
E-mail: James@jameshawkinsaple.com
Greg@jameshawkinsaplc.com
Michael@jameshawkinsaple.com
Lauren@jameshawkinsaple.com
Ava@jameshawkinsaple.com
QUALCOMM INC: Faces Class Suit in Calif. Over Alleged Market Abuse
------------------------------------------------------------------
Teralyn Whipple, writing for Broadband Breakfast, reports that a
complaint was filed in Federal Court in California against chip
maker Qualcomm on June 10 for alleged market abuse, marking the
second effort to hold Qualcomm liable for abuse.
"For over a decade," read the complaint, "Qualcomm has exploited
its position as the dominant global provider of modem chips… in
the form of inflated prices for cellular devices throughout the
world."
The complaint claims Qualcomm violated California's antitrust and
consumer protection laws, the Cartwright Act and the Unfair
Competition Law, "both of which provide more liberal standards for
liability than are available under the federal Sherman Act." Thus,
a company may be in violation of the Cartwright Act even if it does
not violate the Sherman Act.
The plaintiffs seek an order that Qualcomm's conduct is unlawful,
"enjoining Qualcomm from continuing to engage in this and any
similarly unlawful conduct, and awarding money damages,
restitution, and all other relief to which Plaintiffs… are
entitled." [GN]
RCN TELECOM: Settles Class Action Over Late Fees for $6.65MM
------------------------------------------------------------
Top Class Actions reports that RCN Telecom agreed to pay $6.65
million to resolve claims it charged unfair late fees that violated
its own terms and conditions.
The settlement benefits current and former RCN Telecom customers
who were charged and paid a late fee between Aug. 12, 2014, and
April 25, 2022. Eligible consumers may have received a settlement
notice via mail or email.
RCN Telecom is an internet and cable company owned by Astound
Broadband. In January 2022, Astound announced its regional
companies would change their names -- RCN Corp. became Astound
Broadband powered by RCN.
According to a class action lawsuit against RCN Telecom, the
company violated its own terms and conditions by charging its
internet customers late fees.
The telecom company uniformly charged its customers late fees of
$15 when RCN policies stated late fees would be no more than $9,
plaintiffs contend. Additionally, the company allegedly charged
late fees without observing the grace period or providing advanced
written notice of deadlines, as promised in RCN's terms and
conditions.
In addition to violating the company's policies, the RCN Telecom
class action lawsuit claims these "unfair" fees violated New Jersey
laws including the New Jersey Consumer Fraud Act, Truth in Consumer
Contract, Warranty and Notice Act and Uniform Declaratory Judgment
Act.
After nine months of negotiations, RCN agreed to pay $6.65 million
to resolve these allegations. The company hasn't admitted any
wrongdoing.
Under the terms of the settlement, class members can receive a
payment based on a number of factors. These factors include whether
class members were subscribers, the number of total claimants in
the settlement and whether class members choose to receive their
settlement payment as a bill credit or a check/electronic payment.
For example, current customers who choose to receive their payment
as a bill credit will receive 100% of their "allocated loss." Class
members who are current customers who choose to receive their
payments as checks or electronic payments will receive only 50% of
their "allocated loss."
Allocated loss is determined by a Class Member's service
experience.
Class members who signed up for RCN Telecom services after
Feb. 17, 2019, have an allocated loss of 80% of the total fees they
paid. Those who signed up for services before Feb. 17, 2019, but
were customers after that date have an allocated loss of 40% of the
fees paid. Former customers who signed up for services before Feb.
17, 2019, and were not customers after that date have an allocated
loss of 20% the fees paid.
RCN Telecom has also agreed to revise its terms and conditions to
update or delete any language about late fees, delinquency notices
and related grace periods. These changes will comply with New
Jersey law and better inform customers of the late fees they may be
charged.
The deadline for exclusion and objection is July 11, 2022.
The final approval hearing for the RCN Telecom settlement is
scheduled for July 29, 2022. Class members may voice their opinions
at this hearing, but are not required to attend.
In order to receive a payment for unfair fees, class members must
submit a valid claim form by Aug. 23, 2022. Through their claim
forms, class members can determine how they want their payment
distributed (bill credit, check or electronic payment).
Who's Eligible
The settlement benefits current and former RCN Telecom customers
who were charged and paid a late fee between Aug. 12, 2014, and
April 25, 2022. Eligible consumers may have received a settlement
notice via mail or email.
Potential Award
Varies
Proof of Purchase
Proof of Purchase Text
Claim Form
NOTE: If you do not qualify for this settlement do NOT file a
claim.
Remember: you are submitting your claim under penalty of perjury.
You are also harming other eligible Class Members by submitting a
fraudulent claim. If you're unsure if you qualify, please read the
FAQ section of the Settlement Administrator's website to ensure you
meet all standards (Top Class Actions is not a Settlement
Administrator). If you don't qualify for this settlement, check out
our database of other open class action settlements you may be
eligible for.
Claim Form Deadline
08/23/2022
Case Name
Reid v. RCN Telecom Services, LLC et. al., Case No. MER-L-315-22,
in the Superior Court of New Jersey for Mercer County
Final Hearing
07/29/2022
Settlement Website
RCNLateFeeSettlement.com
Claims Administrator
Reid v RCN Telecom
c/o Kroll Settlement Administrator
P.O. Box 225391
New York, NY 10150-5391
Class Counsel
Stephen P DeNittis Esq
Joseph A Osefchen Esq
Shane T Prince, Esq
DENITTIS OSEFCHEN PRINCE PC
Daniel M Hattis Esquire
Paul Karl Lukacs Esquire
HATTIS & LUKACS
Defense Counsel
David E Sellinger Esquire
GREENBERG TRAURIG LLP [GN]
RESEARCH STRATEGIES: Duverger Files Bid Class Certification
-----------------------------------------------------------
In the class action lawsuit captioned as MARGARETTE DUVERGER,
individually and on behalf of all others similarly situated, v.
RESEARCH STRATEGIES, INC., an Alabama corporation, Case No.
0:21-cv-62465-RAR (S.D. Fla.), the Plaintiff asks the Court to
enter an order:
1. certifying a Pre-recorded No Consent Class:
"All persons in the United States who from four years
prior to the filing of this action through class
certification (1) Defendant Research Strategies called (2)
on their cellular telephone number (3) using the identical
prerecorded voice message used to call the Plaintiff;"
2. appointing her as class representative and Kaufman P.A.
and Law Offices of Stefan Coleman, P.A. as class counsel;
and
3. establishing a deadline for submitting a proposed notice
plan.
The Plaintiff Duverger moves to certify a class of the thousands of
consumers whose cellular telephone numbers Research Strategies
purchased and then called using a prerecorded voice as part of a
single calling campaign in October 2021 in violation of the
Telephone Consumer Protection Act's robocalls provision, 47 U.S.C.
§ 227(b)(1)(A)(iii).
This case is well-suited for class certification because it
involves a single campaign of calls made using the same prerecorded
voice message to telephone numbers sourced in the same manner. The
central and determinative issues in this case will be (1) whether
Research Strategies' calls were made using a prerecorded voice; (2)
whether Research Strategies' calls were made to cellular telephone
numbers; and (3) whether Research Strategies had prior express
written consent, as defined under the TCPA, to make the calls. And
these issues will be resolved based on common, class wide proof,
including documents, data, and testimony from Research Strategies,
its dialer provider, the companies it purchased leads from, and
Plaintiff's expert, the suit says.
Research Strategies is a full-service consumer, public opinion &
business-to-business market research company.
A copy of the Plaintiff's motion to certify class dated June 21,
2022 is available from PacerMonitor.com at https://bit.ly/3bmIapa
at no extra charge.[CC]
The Plaintiff is represented by:
Avi R. Kaufman, Esq.
Rachel E. Kaufman, Esq.
KAUFMAN P.A.
237 S. Dixie Hwy, 4 th Floor
Coral Gables, FL 33133
Telephone: (305) 469-5881
E-mail: kaufman@kaufmanpa.com
rachel@kaufmanpa.com
- and -
Stefan Coleman, Esq.
LAW OFFICES O F STEFAN COLEMAN, P.A.
201 S. Biscayne Blvd, 28 th Floor
Miami, FL 33131
Telephone: (877) 333-9427
Facsimile: (888) 498-8946
E-mail: law@stefancoleman.com
REV GROUP: Parties Seek Initial OK of Settlement
------------------------------------------------
REV Group, Inc. disclosed in its Form 10-Q Report for the quarterly
period ended April 30, 2022, filed with the Securities and Exchange
Commission on June 7, 2022, that on May 19, 2021, the parties to a
consolidated federal and state putative securities class actions
executed a stipulation for a class settlement with the court and
moved for preliminary approval of the settlement.
A consolidated federal putative securities class action and a
consolidated state putative securities class action that had been
pending against the company and certain of its officers and
directors have each been settled. These actions collectively
purported to assert claims on behalf of putative classes of
purchasers of the company's common stock in or traceable to its
January 2017 IPO, purchasers in its secondary offering of common
stock in October 2017, and purchasers from October 10, 2017 through
June 7, 2018. The state action also named certain of the
underwriters for the company's IPO or secondary offering as
defendants.
The federal and state courts each consolidated multiple separate
actions pending before them, the first of which was filed on June
8, 2018. The actions alleged certain violations of the Securities
Act of 1933 and, for the federal action, the Securities Exchange
Act of 1934. Collectively, the actions sought certification of the
putative classes asserted and compensatory damages and attorneys'
fees and costs. The consolidated state action was stayed in favor
of the consolidated federal action.
On May 19, 2021, the parties to the consolidated federal and state
putative securities class actions executed a stipulation of
settlement for a class settlement with the court and moved for
preliminary approval of the settlement. In August 24, 2021, the
court preliminarily approved the settlement. Notice was then given
to the classes certified for settlement, and the court entered a
final judgment approving the settlement on December 9, 2021.
REV Group companies are designers, manufacturers and distributors
of specialty vehicles and related aftermarket parts and services
based in Wisconsin.
ROCKY MOUNTAIN: Parties Seek Conditional Status of Class Action
---------------------------------------------------------------
In the class action lawsuit captioned as Christopher Mills,
Individually and on Behalf of All Others Similarly Situated, v.
Rocky Mountain Concrete Specialists, LLC, and Greg Johnson, Case
No. 1:22-cv-00396-CMA-STV (D. Colo.), the Parties ask the Court to
enter an order:
1. approving the terms of the Stipulation;
2. Conditionally Certifying the proposed Fair Labor Standards
Act (FLSA) Collective Action;
3. approving the Notice, Consent, Electronic Notice,
Electronic Consent, and Reminder Notice; and
4. setting a deadline of 60 days after the Court's Order for
potential collective members to file their Consent with
the Court.
The Plaintiff filed his Original Complaint -- Collective Action on
February 14, 2022. In his Complaint, the Plaintiff seeks to
represent himself and all persons who as laborers for Defendants
within the last three years of the date of filing.
By stipulating to conditional certification of the FLSA Collective
Action, the Defendants do not admit that they have in any way
violated the FLSA or any other law and do not waive their right to
contest this case on the merits, bring a motion for summary
judgment, or to argue later that the FLSA Class should be
decertified.
The Parties agree that the members of the proposed FLSA collective
action would consist solely of hourly paid basic laborers employed
by Defendant Rocky Mountain Concrete.
A copy of the Parties' motion dated June 20, 2022 is available from
PacerMonitor.com at https://bit.ly/3QB4wn5 at no extra charge.[CC]
The Plaintiff is represented by:
April Rheaume, Esq.
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Pkwy, Suite 510
Little Rock, Arkansas 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
E-mail: april@sanfordlawfirm.com
josh@sanfordlawfirm.com
The Defendants are represented by:
Adrian P. Castro, Esq.
FAIRFIELD AND WOODS P.C.
1801 California St., Suite 2600
Denver, CO 80202
Telephone: (303) 830-2400
Facsimile: (303) 830-1033
E-mail: acastro@fwlaw.com
RUST-OLEUM CORP: Filing of Class Status Bid Due Sept. 27
--------------------------------------------------------
In the class action lawsuit captioned as ANTHONY BUSH, individually
and on behalf of all others similarly situated, v. RUST-OLEUM
CORPORATION, an Illinois corporation, Case No. 3:20-cv-03268-LB
(N.D. Cal.), the Hon. Judge Laurel Beeler entered a second amended
case management scheduling order:
Event Current New
Deadline Deadline
-- Pre-Class Certification June 2, 2022 Aug. 11, 2022
Case Management Conference:
-- Deadline to Seek Leave to July 19, 2022 Sept. 27, 2022
Add New Parties or Amend
Pleadings:
-- Deadline for Plaintiffs July 19, 2022 Sept. 27, 2022
to File Motion for
Class Certification:
-- Deadline for Defendant to Oct. 17, 2022 Jan. 10, 2023
File Opposition to Class
Certification Motion:
Rust-Oleum is a manufacturer of protective paints and coatings for
home and industrial use. It was founded in 1921 by Robert
Fergusson, a sea captain, after he noticed that fish oil spilled on
rusty metal decks stopped corrosion from spreading.
A copy of the Court's order dated June 20, 2022 is available from
PacerMonitor.com at https://bit.ly/3tS1aT8 at no extra charge.[CC]
SAINT JOHN, NB: Judge Tosses Class Action Over Leaky Pipes
----------------------------------------------------------
Aidan Cox, writing for CBC News, reports that a New Brunswick judge
has tossed out a class action lawsuit against the City of Saint
John that flowed from alleged damage to homes and appliances caused
by leaky pipes.
In her decision released on June 14, Court of Queen's Bench Justice
Tracey DeWare found the city did not breach its standard of care
when it switched the water source for about 5,600 west side Saint
John customers back in 2017.
As a result, she said the city does not owe the complainants for
damages they alleged to have suffered as a result.
"While the Court accepts the Class Members submission that the City
owed them a private law duty of care in this case, the City did not
breach the standard of care and therefore, the claims in negligence
cannot proceed," DeWare wrote.
DeWare also ordered the city be entitled to costs of $25,000 plus
taxable disbursements.
Disappointment in decision
Contacted by phone on June 14, Frances Brownell, one of the lead
plaintiffs in the case, was not happy with the decision.
"Obviously I'm disappointed that that was the decision, but there's
nothing more I can do about it," she said. "To me it was a waste of
everybody's energy."
The lawsuit was filed in 2018 and led by Brownell and Cheryl
Steadman, who declined to comment on June 14.
The city switched the west Saint John water source from the Spruce
Lake Reservoir to a collection of drilled wells in the South Bay
area as part of the Safe Clean Drinking Water project.
Shortly after, residents in the area began complaining of leaking
copper pipes and costly water damage.
Other complaints included failed appliances, such as dishwashers,
washing machines and hot-water tanks, as well as skin
irritatation.
A consultant's report, submitted to city council earlier this year,
found the change in the water source to alkaline-based hard water,
from soft and acidic, weakened the scaly material that had built up
over decades in the pipes, which eventually caused leaks.
The sediment was all that was keeping some of the pipes together,
according to CBCL Ltd., an engineering consulting firm.
The $40,000 report concludes what happened in west Saint John would
not have been among the "anticipated outcomes" of the water
changeover.
The class members alleged the city was "negligent and breached
duties of care" by failing to "adequately test, analyze and/or
review the distinct chemistry of the new water source and condition
of the water pipes before, during and after the switchover."
Weighing standard of care
DeWare said she considered evidence from experts Dr. Bryan Karney
and that of Kenneth Maltese, who presented on behalf of the
claimants.
She said based on the evidence, she was satisfied the city engaged
the necessary experts and collected all relevant information in
order to properly manage the change in water source for west Saint
John.
"In all of the circumstances, I am persuaded that the best
information available to the City in September 2017 was that the
only treatment necessary for the water from from the South Bay
Wellfield was chlorination.
"I further accept that, while the City was alive to the issue of
corrosion control when any water transition is taking place, the
advice provided which was gleaned from industry practice and
experience was that no corrosion control measures were necessary."
[GN]
SAN DIEGO FAMILY: Settles 2020 Data Breach Class Action for $1MM
----------------------------------------------------------------
Top Class Actions reports that San Diego Family Care agreed to
resolve claims surrounding its 2020 data breach with a $1 million
settlement fund.
The settlement benefits San Diego Family Care patients -- or their
parents or guardians -- who received a notice of the 2020 data
breach dated May 7, 2021.
San Diego Family Care is a health system that provides primary
care, dental care and mental health care visits to thousands of
patients at eight health centers in San Diego County.
In May 2021, San Diego Family Care disclosed it may have been
targeted in a data breach. The breach compromised names, dates of
birth, Social Security numbers, account numbers, treatment
information, insurance data and other sensitive patient data, the
Times of San Diego reports.
Two class action lawsuits against San Diego Family Care claimed
patients of the health system received notice of the data breach
around the same time in form letters. According to these letters,
San Diego Family Care's technology hosting provider was the victim
of a breach in December 2021. San Diego Family Care allegedly
learned of the breach in January 2021.
Plaintiffs in the cases claim the healthcare company failed in its
duty to protect patients' information during the 2020 data breach.
San Diego Family Care should have taken reasonable measures to
protect consumer data and, upon learning of the breach, should have
informed plaintiffs and other patients in a prompt fashion so they
could take steps to protect themselves, the data breach class
action lawsuits contend.
San Diego Family Care hasn't admitted any wrongdoing but agreed to
resolve these allegations with a $1 million settlement.
Under the terms of the settlement, each class member can collect a
cash payment.
All class members are eligible for a base payment of up to $100.
Class members may also be able to receive up to $1,000 for ordinary
out-of-pocket expenses and up to $5,000 for extraordinary out of
pocket expenses resulting from the breach. In order to qualify for
these payments, class members must provide documentation of
fraudulent claims, fees, phone charges, lost time, credit
monitoring and other expenses.
The settlement also provides free identity theft protection
services that must be redeemed within 90 days of receiving a code
from Experian. Redemption codes will be sent after class members
submit a claim form.
The deadline for exclusion and objection passed on May 31, 2022.
Class members who did not exclude themselves or object by this date
no longer have the option to do so.
The final approval hearing for the San Diego Family Care data
breach settlement is scheduled for July 29, 2022.
In order to receive a payment from the settlement, class members
must submit a valid claim form by July 15, 2022.
Who's Eligible
The settlement benefits San Diego Family Care patients -- or their
parents or guardians -- who received a notice of the 2020 data
breach dated May 7, 2021.
Potential Award
Varies
Proof of Purchase
Provide documentation of fraudulent claims, fees, phone charges,
lost time, credit monitoring and other expenses.
Claim Form
NOTE: If you do not qualify for this settlement do NOT file a
claim.
Remember: you are submitting your claim under penalty of perjury.
You are also harming other eligible Class Members by submitting a
fraudulent claim. If you're unsure if you qualify, please read the
FAQ section of the Settlement Administrator's website to ensure you
meet all standards (Top Class Actions is not a Settlement
Administrator). If you don't qualify for this settlement, check out
our database of other open class action settlements you may be
eligible for.
Claim Form Deadline
07/15/2022
Case Name
Doe, et al. v. San Diego Family Care, Case No.
37-2021-00023006-CU-BT-CTL, in the Superior Court of the State of
California, County of San Diego
Thomas v. San Diego Family Care, Case No.
37-2021-00026758-CU-BT-CTL, in the Superior Court of the State of
California, County of San Diego
Final Hearing
07/29/2022
Settlement Website
SDFCPrivacyClassAction.com
Claims Administrator
ILYM Group, Inc
P.O. Box 2031
Tustin, CA 92781
888-250-6810
Class Counsel
Patrick N Keegan
KEEGAN & BAKER LLP
Rachele R Byrd
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP
Defense Counsel
Jon P Kardassakis
Heidi S Inman
LEWIS BRISBOIS BISGAARD & SMITH LLP [GN]
SAVE OLD GROWTH: Faces Suit in British Columbia Over Blockades
--------------------------------------------------------------
Jane Skrypnek, writing for Terrace Standard, reports that a group
of British Columbians fed-up with regular highway blockades by
people protesting the logging of old-growth forests says they are
now pursuing a class-action lawsuit.
Save Old Growth has been occupying highways in various parts of the
province intermittently since January, in an effort to cause enough
disruptive action that B.C. is pushed to end all old-growth
logging. Since June 13, it has committed to blocking highways in
Victoria and Vancouver daily.
This was the final straw for newly formed group Clear The Road,
which says the blockades are stopping British Columbians from
reaching medical appointments, getting to work on time and reaching
customers for deliveries or contract services.
"The main frustration is that they're holding everyday people
hostage from going about their day," said organizer and
forestry-supporter Tamara Meggitt.
According to her, more than 1,000 people have signed Clear The
Road's petition and dozens have expressed interest in joining a
possible class-action lawsuit, including a few who claim they have
lost thousands in income from the blockades. Meggitt says the group
is in discussions with lawyers and that there is a "high, high
likelihood" that efforts to sue will proceed.
It's of little concern to the protesters themselves, though.
Save Old Growth co-founder Zain Haq says it's just one of numerous
risks he and other protesters are willing to face for what they
view as a life-or-death cause. The survival of old-growth forests
is directly linked to the impacts of climate change and, thus, the
survival of people, Haq says.
He says their methods are intentionally disruptive and that the
history of protests show governments only enact change when tough
conversations are forced upon them.
Haq likens what they're doing to the Freedom Riders of the 1960s, a
group of Black and white civil rights activists who challenged
segregation laws by riding buses while seated next to each other.
Haq says they created change not by becoming popular, but by
causing disruptions for a long enough period of time.
"I don't like at all being on the highway. No one likes upsetting
people on purpose. We feel like this is the only option we have
left at this point," he said
Tensions have been growing between the protesters and commuters for
months, with several videos taken at the blockades showing drivers
trying to drag protesters out of the way.
On Monday (June 13) one protester who was perched on top of a
ladder in North Saanich fell to the pavement when a commuter broke
a wooden support structure below, according to Save Old Growth. Haq
says the person was set to undergo surgery on June 14 for a broken
pelvis.
The group will continue their blockades and other disruptive
techniques -- one member dumped manure outside Premier John
Horgan's office and another glued their hand to a goal post at a
soccer game -- until old-growth logging is banned.
A number of protesters are facing criminal charges in connection to
the blockades, which could carry jail time.
Class action lawsuits must be authorized or certified by a judge in
order to go ahead. [GN]
SHARI'S MANAGEMENT: Gomez Sues Over Failure to Pay Minimum Wages
----------------------------------------------------------------
EVA GOMEZ, individually and on behalf of all other Aggrieved
Employees v. SHARI'S MANAGEMENT CORPORATION, a Delaware
Corporation, FRI-M, LLC, a Delaware Limited Liability Company, and
DOES 1 through 50, inclusive, Case No. 22STCV19340 (Cal. Super.,
Los Angeles Cty., June 14, 2022) is a a Private Attorney General
Action (PAGA) Complaint, pursuant to California Labor Code for
Defendant's failure to provide employment records, failure to pay
overtime and double time, failure to provide rest and meal periods,
and failure to pay minimum wage.
The "aggrieved employees" are Defendants' current and former
hourly-paid, non-exempt employees, who either were or are employed
in the State of California from April 7, 2021 through the date of
judgment in this action.
Founded in 1978, Shari's is a family-style brand in the Pacific
Northwest.[BN]
The Plaintiff is represented by:
Haig B. Kazandjian, Esq.
Cathy Gonzalez, Esq.
Kevin P. Crough, Esq.
HAIG B. KAZANDJIAN LAWYERS, APC
801 North Brand Boulevard, Suite 970
Glendale, CA 91203
Telephone: (818) 696-2306
Facsimile: (818) 696-2307
E-mail: haig@hbklawyers.com
cathy@hbklawyers.com
kevin@hbklawyers.com
SHIELDS HEALTH: Faces Class Action Over Alleged Data Breach
-----------------------------------------------------------
HIPAA Journal reports that a class action lawsuit has been filed
against Shields Health Care Group over its recently announced 2
million-record data breach -- the largest healthcare data breach to
be reported so far this year by a single HIPAA-regulated entity.
Shields Health Care Group is the largest provider of MRI imaging
services in New England and operates more than 40 facilities in the
region. On May 27, 2022, the Massachusetts-based medical imaging
service provider reported the data breach to the HHS' Office for
Civil Rights and confirmed that an unauthorized actor had access to
some of its IT systems from March 7 to March 21, 2022. During that
time, files were exfiltrated from its systems that included patient
information such as names, addresses, birth dates, Social Security
numbers, diagnoses, billing information, insurance numbers and
medical or treatment information.
A data breach of this scale is likely to see several lawsuits
filed, with Keller Postman LLC and co-counsel Sweeney Merrigan Law
LLP, and Finkelstein, Blankinship, Frei-Pearson, & Garber LLC the
first to file. The lawsuit, William Biscan v. Shields Health Care
Group Inc.– was filed in the District Court for the District of
Massachusetts and alleges the defendant negligently handled the
private health information of the plaintiff and other similarly
situated individuals.
The lawsuit alleges the defendant should have been aware of the
risk of a data breach yet failed to implement reasonable and
appropriate safeguards to keep patient data private and
confidential and protect against unauthorized access and
disclosure. As a result, the personal and protected health
information of patients in "a dangerous and vulnerable condition"
and failed to notify affected individuals in a timely manner.
As a result of those failures, the plaintiff claims he and other
class members now face a heightened and imminent risk of fraud and
identity theft and will continue to incur out-of-pocket costs for
purchasing credit monitoring services, credit freezes, credit
reports, and other protective measures to prevent and detect
identity theft and fraud.
In addition to the negligence claim, the lawsuit alleges a breach
of express contract, breach of implied contract, invasion of
privacy by intrusion, breach of fiduciary duty, breach of
confidence, unjust enrichment, and violations Massachusetts General
Laws.
The lawsuit seeks class certification, monetary relief, actual and
punitive damages, litigation fees, adequate credit monitoring and
identity theft protection services, and an injunction requiring the
defendant to improve security to prevent similar breaches in the
future and undergo annual security audits. [GN]
SPERO THERAPEUTICS: Levi & Korsinsky Reminds of July 25 Deadline
----------------------------------------------------------------
Levi & Korsinsky, LLP notifies investors in Spero Therapeutics,
Inc. ("Spero" or the "Company" of a class action securities
lawsuit.
The lawsuit on behalf of Spero investors has been commenced in the
the United States District Court for the Eastern District of New
York. Affected investors purchased or otherwise acquired certain
Spero Therapeutics, Inc. securities between October 28, 2021 and
May 2, 2022. Follow the link below to get more information and be
contacted by a member of our team:
https://www.zlk.com/pslra-1/spero-therapeutics-inc-loss-submission-form?prid=28629&wire=5
or contact Joseph E. Levi, Esq. either via email at
jlevi@levikorsinsky.com or by telephone at (212) 363-7500. There is
no cost or obligation to you.
Spero Therapeutics, Inc. NEWS - SPRO NEWS
CASE DETAILS: The filed complaint alleges that defendants made
false statements and/or concealed that: (i) the data submitted in
support of the New Drug Application ("NDA") for the Company's
product candidate, Tebipenem HBr, were insufficient to obtain
approval from the U.S. Food and Drug Administration ("FDA"); (ii)
accordingly, it was unlikely that the FDA would approve the
Tebipenem HBr NDA in its current form; (iii) the foregoing would
necessitate a significant workforce reduction and restructuring of
Spero's operations; and (iv) as a result, the Company's public
statements were materially false and misleading at all relevant
times.
WHAT THIS MEANS TO SHAREHOLDERS: If you suffered a loss in Spero
during the relevant timeframe, you have until July 25, 2022 to
request that the Court appoint you as lead plaintiff. Your ability
to share in any recovery doesn't require that you serve as a lead
plaintiff.
NO COST TO YOU: If you are a class member, you may be entitled to
compensation without payment of any out-of-pocket costs or fees.
Discuss your rights with our legal team without cost or
obligation.
PROTECT YOUR FINANCIAL INTERESTS: Complete this brief submission
form
https://www.zlk.com/pslra-1/spero-therapeutics-inc-loss-submission-form?prid=28629&wire=5
or call 212-363-7500 to discuss the case.
WHY LEVI & KORSINSKY: Over the past 20 years, the team at Levi &
Korsinsky has secured hundreds of millions of dollars for aggrieved
shareholders and built a track record of winning high-stakes cases.
Our firm has extensive expertise representing investors in complex
securities litigation and a team of over 70 employees to serve our
clients. For seven years in a row, Levi & Korsinsky has ranked in
ISS Securities Class Action Services' Top 50 Report as one of the
top securities litigation firms in the United States.
CONTACT:
Levi & Korsinsky, LLP
Joseph E. Levi, Esq.
Ed Korsinsky, Esq.
55 Broadway, 10th Floor
New York, NY 10006
jlevi@levikorsinsky.com
Tel: (212) 363-7500
Fax: (212) 363-7171
www.zlk.com [GN]
STRYKER CORP: Fails to Pay OT Wages for Sales Reps Under FLSA
-------------------------------------------------------------
JONATHAN JEROZAL, individually and on behalf of all other members
of the general public similarly situated v. STRYKER CORPORATION, a
Michigan corporation, Case No. 2:22-cv-04094 (C.D. Cal., June 14,
2022) alleges that Stryker failed to pay overtime wages under the
Fair Labor Standards Act and the California Labor Code.
The Plaintiff and other similarly situated persons worked as Sales
Associates or Sales Representatives in a variety of Defendant’s
divisions, including but not limited to: Craniomaxillofacial; Ear,
Nose, and Throat; Endoscopy; Foot & Ankle; Injury/Infection
Prevention; Neurovascular; Spine/Trauma; Sports Medicine; Surgical;
and Upper Extremities.
Stryker is an American multinational medical technologies
corporation based in Kalamazoo, Michigan.[BN]
The Plaintiff is represented by:
Lin Chan, Esq.
Rachel Geman,Esq.
LIEFF CABRASER HEIMANN &
BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
E-mail: lchan@lchb.com
rgeman@lchb.com
- and -
Paolo Meireles,Esq.
SHAVITZ LAW GROUP, P.A.
951 Yamato Road, Suite 285
13 Boca Raton, Florida 33431
Telephone: (561) 447-8888
Facsimile: (561) 447-8831
E-mail: pmeireles@shavitzlaw.com
SUN CONSTRUCTION: Partial Judgment in Markiewicz Suit Affirmed
--------------------------------------------------------------
In the case, APRIL MARKIEWICZ, WIFE OF/AND MARK MARKIEWICZ, v. SUN
CONSTRUCTION, L.L.C., PENN MILL LAKES, L.L.C., AND COOPER
ENGINEERING, INC., A PROFESSIONAL ENGINEERING CORPORATION JANET
SHEA, WIFE OF/AND ALPHONSE SHEA v. SUN CONSTRUCTION, L.L.C.;
SUNRISE CONSTRUCTION AND DEVELOPMENT, L.L.C.; PENN MILL LAKES,
L.L.C.; COOPER ENGINEERING, INC., A PROFESSIONAL ENGINEERING
CORPORATION PATRICIA GRANT, WIFE OF/AND RICHARD GRANT; ET AL.,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED v. SUN
CONSTRUCTION, L.L.C., PENN MILL LAKES, L.L.C., SUNRISE CONSTRUCTION
AND DEVELOPMENT, L.L.C., AND COOPER ENGINEERING, INC., A
PROFESSIONAL ENGINEERING CORPORATION, Case No. 2021 CA 1535,
Consolidated with Nos. 2021 CA 1536, 2021 CA 1537 (La. App.), the
Court of Appeal of Louisiana for the First Circuit affirms the
trial court's March 30, 2021 judgment, which:
a. granted in part the motion for partial summary judgment
filed by Developer Defendants Sun, Penn Mill Lakes, and
Lawrence A. Kornman; and
b. dismissed with prejudice the Plaintiffs' claims against the
Developer Defendants for fraud and conspiracy to defraud.
I. Background
The putative class action arises out of three consolidated lawsuits
brought by homeowners in Penn Mill Lakes Subdivision in St. Tammany
Parish, alleging defects in the design and construction of the
drainage system of the Subdivision and seeking to recover damages
from flooding allegedly caused by these defects.
April and Mark Markiewicz filed suit on Dec. 8, 2006, and Janet and
Alphonse Shea filed suit on Feb. 8, 2008, asserting claims under
the New Home Warranty Act, La. R.S. 9:3141, et seq., and alleging
that the defective design, construction, and planning of the
drainage system causes their driveways to flood during inclement
weather, which impedes access to, and egress from, their homes.
Thereafter, on March 20, 2008, Patricia Grant, Richard Grant,
Marguerite Guarino, William Guarino, Sheron Sprawls, Vernon
Sprawls, Dianne White, Johnny White, Jo Ann Youngblood, William
Youngblood, Lynell Rowan, Alvin Rowan, Gayle Ayo, James Ayo,
Deborah Lascari and Daniel Lascari filed a class action petition,
individually and on behalf of all others similarly situated. In
that petition, the Plaintiffs named as Defendants Sun, the general
contractor/builder of the Subdivision; Penn Mill Lakes, one of the
developers of the Subdivision; and Cooper Engineering, Inc., the
engineering firm responsible for the design of the drainage system
in the Subdivision.
The Plaintiffs asserted claims in negligence, strict liability, and
nuisance, and also alleged that the drainage system utilized
throughout the Subdivision was defective in design and as
constructed and installed. They further alleged Sun, Penn Mill
Lakes, and Cooper Engineering committed fraud and a conspiracy to
defraud by failing to advise them that their driveways were
components of the Subdivision drainage system, and by promising to
repair the drainage system, but then refusing to do so, thereby
discouraging plaintiffs from the prompt exercise of their rights.
The three lawsuits were ultimately consolidated by judgments dated
Jan. 6, 2009.
Through amended class action petitions, the Plaintiffs named as
defendants various other individuals and entities allegedly
involved in the design and construction of the drainage system in
the Subdivision, and their insurers. As is relevant to the instant
matter, on Sept. 4, 2013, the Plaintiffs filed a second amended
class action petition, adding Leroy J. Cooper, the former owner of
Cooper Engineering, and the St. Tammany Parish Government ("STPG")
as party defendants.
In that petition, the Plaintiffs asserted additional fraud and
conspiracy claims, specifically alleging Sun, Penn Mill Lakes,
Cooper Engineering, and Cooper knew Cooper's hydrolysis studies and
other design submissions contained false and misleading parameters
and assumptions, and failed to disclose or take into consideration
the location of the Subdivision within the Little Tchefuncte
River/Horse Branch flood basin. They alleged these defendants
conspired together to keep this information from the STPG, and that
they knew the Subdivision would "backflood" considering its
location in a flood basin.
In their third amended class action petition, filed on June 13,
2014, the Plaintiffs named as defendants Lawrence A. Kornman, the
manager of Sun and Penn Mill Lakes; James A. "Red" Thompson, the
St. Tammany Parish Councilman for the geographic area that includes
the Subdivision; and Jean M. Thibodeaux, P.E., the St. Tammany
Parish Director of Engineering and Parish Engineer at the time the
developer defendants were seeking approval of their initial
applications for development of the Subdivision. They alleged in
their third amended class action petition that the Developer
Defendants, along with Thompson and Thibodeaux, engaged in fraud
and a conspiracy because they knew the Subdivision applications and
submissions by the developer defendants contained false and
misleading information and failed to take into consideration the
location of the proposed subdivision within the Little Tchefuncte
River/Horse Branch flood basin.
The Plaintiffs alleged the Developer Defendants, Thompson, and
Thibodeaux were aware flood protection measures were needed in
order to comply with St. Tammany Parish Flood Hazard Area
Ordinance, Parish Ordinance Sec. 7-016.00, et seq. (sometimes
referred to as "the flood ordinances") and St. Tammany Parish
Subdivision Regulations, Ordinance Number 499 (Appendix B, Chapter
40) (sometimes referred to as "Subdivision Ordinance 499"). They
further alleged the developer defendants, Thompson, and Thibodeaux
conspired together to withhold from the STPG information regarding
the potential for flooding of the Subdivision in order to obtain
permits to develop the Subdivision.
On Feb. 12, 2016, the Plaintiffs filed a fourth amended class
action petition, adding Penn Mill Lakes Homeowners Association,
Inc. ("the HOA") and Susan Casey as plaintiffs, and adding John E.
Bonneau and John E. Bonneau & Associates, Inc. as additional
defendants. They alleged John E. Bonneau, a professional land
surveyor associated with and working for John E. Bonneau &
Associates, Inc. (sometimes collectively referred to as "the
Bonneau defendants") provided and have continued to provide
professional surveying services on behalf of the Developer
Defendants, including preparing elevation certificates that were
provided to homeowners during the sales process. They alleged that
no later than 2009, the Bonneau defendants had actual or
constructive knowledge that the initial elevations taken in the
Subdivision were significantly incorrect. They alleged the Bonneau
defendants acted in concert with the developer defendants to
provide homeowners with incorrect elevation certificates, actions
plaintiffs asserted amounted to fraud and an ongoing violation of
the Louisiana Unfair Trade Practices and Consumer Protection Law
("LUTPA"), La. R.S. 51:1401, et seq.
On June 8, 2018, the STPG, Thompson, and Thibodeaux (collectively
"the STPG Defendants"), filed a motion for summary judgment arguing
they were entitled to discretionary immunity, in accordance with
La. R.S. 9:2798.1, and seeking dismissal of the Plaintiffs' claims
against them for approving the Subdivision and issuing permits, as
well as their claims for fraud, conspiracy, and unfair trade
practices. The trial court signed an amended judgment on June 17,
2020, granting the STPG Defendants' motion for summary judgment,
and the Plaintiffs appealed that judgment.
On appeal, the Court of Appeal affirmed the trial court's judgment
insofar as it granted the STPG Defendants' motion for summary
judgment and dismissed the Plaintiffs' claims against the STPG
defendants relative to the approval of the Subdivision and issuance
of permits, as well as the Plaintiffs' claims of conspiracy, fraud,
and unfair trade practices.
Meanwhile, the Bonneau Defendants filed a motion for summary
judgment, arguing the Plaintiffs' non-fraud claims against them,
except those of Casey, were perempted pursuant to La. R.S. 9:5607,
and asserting the Plaintiffs could not establish the essential
elements of their fraud claims. On June 11, 2019, the trial court
signed a judgment granting, in part, the Bonneau Defendants' motion
for summary judgment and dismissing with prejudice the claims of
Plaintiffs, except Casey, against the Bonneau Defendants.
The Plaintiffs appealed that judgment, which is the subject of the
Court of Appeal's prior opinion, Markiewicz v. Sun Construction,
L.L.C., 2019-1590 (La. App. 1st Cir. 9/18/20) 2020 WL 5587265
(unpublished), writ denied, 2020-01196 (La. 1/12/21), 308 So.3d
714. On appeal, it affirmed the trial court's June 11, 2019
judgment, finding the Plaintiffs' non-fraud claims, with the
exception of Casey's, were perempted pursuant to La. R.S. 9:5607.
As to the Plaintiffs' fraud claims, which fell outside the purview
of La. R.S. 9:5607, the Court of Appeal found the Plaintiffs failed
to produce factual support sufficient to establish the existence of
a genuine issue of material fact as to any fraudulent
misrepresentations by the Bonneau Defendants.
On Nov. 30, 2020, the Developer Defendants filed a motion for
partial summary judgment seeking dismissal of the Plaintiffs'
claims against them for fraud, conspiracy to defraud, and unfair
trade practices. Following a hearing on the motion, the trial court
signed a judgment on March 30, 2021, which granted, in part, the
Developer Defendants' motion for partial summary judgment as to the
Plaintiffs' fraud and conspiracy claims, dismissed those claims
with prejudice, and denied the motion, in part, as to the
Plaintiffs' LUPTA claims.
From this judgment, the Plaintiffs appeal, raising three
assignments of error challenging the trial court's finding that
they failed to set forth sufficient evidence to establish the
existence of a genuine issue of material fact as to their fraud and
conspiracy claims against the developer defendants and,
accordingly, its partial grant of the developer defendants' motion
for partial summary judgment.
II. Law & Analysis
The Developer Defendants argued in their motion for partial summary
judgment that the Plaintiffs could not meet their burden at trial
of proving they defrauded the Plaintiffs, or conspired with any
other Defendants to defraud the Plaintiffs, because the Plaintiffs
have testified they have no personal knowledge of a fraud or
conspiracy, and there is no evidence to show the Developer
Defendants made a misrepresentation about the elevation of the
Plaintiffs' lots, or intended to deceive the Plaintiffs with
respect to the purchase of their homes.
In their opposition to the Developer Defendants' motion for partial
summary judgment, the Plaintiffs conceded they have no personal
knowledge of a conspiracy or fraud but argued there is substantial
evidence to show the developer defendants were involved in a
conspiracy and fraud regarding the construction of the Subdivision
and its allegedly defective drainage system. In particular, they
argued the developer defendants conspired with the STPG to stop a
hydrological study, recommended by Thibodeaux, which the Plaintiffs
asserted was required by Sec. 7-023.01(9) of the flood ordinances.
After its de novo review of the matter, the Court of Appeal finds
the Plaintiffs failed to establish a genuine issue of material fact
as to any alleged fraud or conspiracy to defraud by the developer
defendants. In particular, it finds the Plaintiffs failed to
present evidence to establish the existence of a genuine issue of
material fact as to any alleged fraudulent misrepresentation by the
Developer Defendants, or any specific intent on the part of the
Developer Defendants to deceive them.
The Plaintiffs concede that they have no personal knowledge that
the Developer Defendants engaged in fraud or a conspiracy. As
previously noted, the licensed professional surveyor retained by
the Plaintiffs, opined in his affidavit that Bonneau's
miscalculation in his survey elevation data "goes a long way to
explain why the subdivision routinely floods in ordinary
rainfall."
The Court of Appeal holds that the Plaintiffs failed to present
proof that the developer Defendants knew the Bonneau elevation
surveys were inaccurate at the time they purchased their homes, or
that they knowingly provided them with incorrect elevation surveys
for their respective lots.
In sum, the Plaintiffs failed to present any evidence to
demonstrate that the Developer Defendants knew the Plaintiffs'
driveways would flood, or that they suppressed this information
from them in an attempt to deceive them into purchasing homes in
the Subdivision. As discussed, specific intent to deceive is a
necessary element of fraud, and fraud cannot be based on mistake or
negligence, regardless how great.
The Court of Appeal further find the July 26, 2002 letter from
Kornman to individuals comprising the Lake Ramsey Homeowners
Association is insufficient to raise a genuine issue of material
fact as to a conspiracy or fraudulent misrepresentation on the part
of the Developer Defendants. The 1998 FEMA FIRM panel used at the
time of development of the Subdivision showed that only a small
portion of the property was within Flood Zone "A." The Plaintiffs
failed to provide evidence showing Kornman knew any other portion
of the property had been designated Flood Zone "A," or would fall
within the qualifications of FEMA for designation as Flood Zone
"A," at the time he wrote the letter.
Thus, the Court of Appeal finds the July 26, 2002 letter
insufficient to prove that Kornman knowingly made a
misrepresentation as to the size of the area designated as Flood
Zone "A." A defendant cannot fraudulently conceal his mistake if he
has no knowledge of that mistake. Moreover, the Plaintiffs failed
to present evidence of Kornman's specific intent to obtain an
unjust advantage or to cause damage or inconvenience to the
Plaintiffs as relates to the July 26, 2002 letter, particularly
since there is no evidence that the letter was sent to them
The Court of Appeal also finds the Jan. 8, 2009 protest letter by
Cooper to the St. Tammany Parish Floodplain Manager, which relied
on the Bonneau Defendants' elevation surveys, is insufficient to
demonstrate a genuine issue of material fact as to the Plaintiffs'
fraud or conspiracy claims against the Developer Defendants. Even
considering the allegation in Allen's affidavit that some survey
data was intentionally omitted by Cooper from the protest letter,
the Plaintiffs fail to present evidence sufficient to raise a
genuine issue of material fact regarding the Developer Defendants'
intent to deceive the Plaintiffs in connection with the purchase of
their homes based on the protest letter.
The Court of Appeal likewise finds the correspondence between
Thibodeaux and Cooper, and Cooper and Kornman, as relates to
Thibodeaux's recommendation for a hydrological study is
insufficient to demonstrate a genuine issue of material fact
showing the Developer Defendants conspired with the STPG defendants
to commit a tortious act against the Plaintiffs. Even if some sort
of agreement existed between the Developer Defendants and Thompson,
the actionable element of a conspiracy claim is not the conspiracy
itself, but rather the underlying tort the conspirators agree to
perpetrate and actually commit in whole or in part. In order to
recover under a theory of civil conspiracy, a plaintiff must
establish that there was an agreement as to the intended result.
Furthermore, while not wholly dispositive of the Plaintiffs' fraud
and conspiracy claims, the Court of Appeals notes that the trial
court dismissed the Plaintiffs' fraud and conspiracy claims against
the Developer Defendants' alleged co-conspirators, the Bonneau
Defendants and the STPG Defendants, and it affirmed the dismissals
of those claims. Additionally, it also affirmed the trial court's
summary judgment in favor of the STPG Defendants for their
discretionary actions in approving the Subdivision and issuing
building permits.
III. Conclusion
Based on the stated reasons, the Court of Appeal finds that the
district court did not err in granting partial summary judgment in
favor of Sun, Penn Mill Lakes and Kornman; and dismissing with
prejudice the Plaintiffs' fraud and conspiracy claims against them.
Accordingly, it affirms that portion of the trial court's March 30,
2021 judgment. Costs of the appeal are assessed against the
Plaintiffs.
A full-text copy of the Court's June 14, 2022 Opinion is available
at https://tinyurl.com/2p8eeeuk from Leagle.com.
Maurice Le Gardeur, Covington, Louisiana, and Adam S. Lambert, in
New Orleans, Louisiana, Attorneys for the Plaintiffs/Appellants,
Patricia Grant, Individually and as Independent Executrix of the
Succession of Richard Grant, Sheron Sprawls, Vernon Sprawls, Dianne
White, Johnny White, Joann Youngblood, William Youngblood, Lynell
Rowan, Alvin Rowan, Gayle Ayo, James Ayo, Susan Casey, Janet Shea,
Alphonse Shea, and Penn Mill Lakes Homeowners Association, Inc.
J. Scott Loeb -- sloeb@loeb-law.com -- Cynthia M. Bologna --
cbologna@loeb-law.com -- Jonas P. Baker -- jbaker@loeb-law.com --
in Mandeville, Louisiana, Attorneys for the Defendants/Appellees,
Sun Construction, LLC, Lawrence A. Kornman, and Penn Mill Lakes,
LLC.
TECHTRONIC INDUSTRIES: Sartorius Sues Over Defective Wheel Products
-------------------------------------------------------------------
Alexander Sartorius, on behalf of himself and all others similarly
situated v. Techtronic Industries North America, Inc., and Hart
Consumer Products, Inc., Case No. 4:22-cv-00632 (E.D. Mo., June 14,
2022) is a class action claim arising from the deceptive business
practices of the Defendants in the advertising, packaging, and
labeling of a bonded abrasive wheel product (Defective Product)
that was manufactured, produced, distributed, and/or sold by the
Defendants.
During the relevant class period, Defendants sold the Defective
Product at Walmart retail store locations throughout the state of
Missouri and the United States. The Defendants sold the Defective
Product to Plaintiff and other reasonable consumers without
adequate advertising, packaging, and labeling that identified that
the abrasive wheel product had a shelf life or expiration date
after which the product could not be safely used due to risk that
the product may give way, crack, split, explode, and fail if used
after its shelf life, says the suit.
Mr. Sartorius is a resident and citizen of the state of Illinois.
The Plaintiff brings this action on his own behalf and as a
representative of a class of similarly situated persons to recover
damages for violations of the Missouri Merchandising Practices Act,
among other claims, for economic and injunctive relief against
Defendants which manufactured, tested, distributed, promoted and
sold the Defective Product.[BN]
The Plaintiff is represented by:
Kenneth B. McClain, Esq.
Paul D. Anderson, Esq.
HUMPHREY, FARRINGTON, & McCLAIN, P.C.
221 W. Lexington, Suite 400
Independence, MO 64050
Telephone: (816) 836-5050
Facsimile: (816) 836-8966
E-mail: kbm@hfmlegal.com
pda@hfmlegal.com
TELADOC HEALTH: Gross Law Firm Reminds of August 5 Deadline
-----------------------------------------------------------
The Gross Law Firm issues the following notice to shareholders of
Teladoc Health, Inc.
Shareholders who purchased shares of TDOC during the class period
listed are encouraged to contact the firm regarding possible lead
plaintiff appointment. Appointment as lead plaintiff is not
required to partake in any recovery.
CONTACT US HERE:
https://securitiesclasslaw.com/securities/teladoc-health-inc-loss-submission-form/?id=28553&from=4
CLASS PERIOD: October 28, 2021 to April 27, 2022
ALLEGATIONS: The complaint alleges that during the class period,
Defendants issued materially false and/or misleading statements
and/or failed to disclose that: (i) increased competition, among
other factors, was negatively impacting Teladoc's BetterHelp and
chronic care businesses; (ii) accordingly, the growth of those
businesses was less sustainable than Defendants had led investors
to believe; (iii) as a result, Teladoc's revenue and adjusted
EBITDA projections for FY 2022 were unrealistic; (iv) as a result
of all the foregoing, Teladoc would be forced to recognize a
significant non-cash goodwill impairment charge; and (v) as a
result, the Company's public statements were materially false and
misleading at all relevant times.
DEADLINE: August 5, 2022 Shareholders should not delay in
registering for this class action. Register your information here:
https://securitiesclasslaw.com/securities/teladoc-health-inc-loss-submission-form/?id=28553&from=4
NEXT STEPS FOR SHAREHOLDERS: Once you register as a shareholder who
purchased shares of TDOC during the timeframe listed above, you
will be enrolled in a portfolio monitoring software to provide you
with status updates throughout the lifecycle of the case. The
deadline to seek to be a lead plaintiff is August 5, 2022. There is
no cost or obligation to you to participate in this case.
WHY GROSS LAW FIRM? The Gross Law Firm is nationally recognized
class action law firm, and our mission is to protect the rights of
all investors who have suffered as a result of deceit, fraud, and
illegal business practices. The Gross Law Firm is committed to
ensuring that companies adhere to responsible business practices
and engage in good corporate citizenship. The firm seeks recovery
on behalf of investors who incurred losses when false and/or
misleading statements or the omission of material information by a
company lead to artificial inflation of the company's stock.
Attorney advertising. Prior results do not guarantee similar
outcomes.
CONTACT:
The Gross Law Firm
15 West 38th Street, 12th floor
New York, NY, 10018
Email: dg@securitiesclasslaw.com
Phone: (646) 453-8903 [GN]
TELADOC HEALTH: Wolf Haldenstein Reminds of August 5 Deadline
-------------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP on June 15 disclosed that
a federal securities class action lawsuit has been filed against
Teladoc Health, Inc. ("Teladoc" or the "Company") (NYSE: TDOC) in
the United States District Court for the Southern District of New
York on behalf of all those that purchased or otherwise acquired
Teladoc securities between October 28, 2021 and April 27, 2022,
both dates inclusive (the "Class Period").
All investors who purchased the shares of Teladoc Health, Inc. and
incurred losses are advised to contact the firm immediately at
classmember@whafh.com or (800) 575-0735 or (212) 545-4774. You may
obtain additional information concerning the action or join the
case on our website, www.whafh.com.
If you have incurred losses in Teladoc Health, Inc., you may, no
later than August 5, 2022, request that the Court appoint you lead
plaintiff of the proposed class. Please contact Wolf Haldenstein to
learn more about your rights as an investor in Teladoc Health,
Inc.
The filed complaint alleges that, throughout the Class Period,
Defendants made materially false and misleading statements
regarding the Company's business, operations, and prospects.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that:
-- increased competition, among other factors, was negatively
impacting Teladoc's BetterHelp and chronic care businesses;
accordingly, the growth of those businesses was less sustainable
than Defendants had led investors to believe;
-- as a result, Teladoc's revenue and adjusted EBITDA
projections for FY 2022 were unrealistic;
-- as a result of all the foregoing, Teladoc would be forced to
recognize a significant non-cash goodwill impairment charge; and
as a result, the Company's public statements were materially false
and misleading at all relevant times.
On April 27, 2022, Teladoc announced its first quarter ("Q1") 2022
financial results, including revenue of $565.4 million, which
missed consensus estimates by $3.23 million, and "[n]et loss per
share of $41.58, primarily driven by [a] non-cash goodwill
impairment charge of $6.6 billion or $41.11 per share[.]"
Additionally, the Company revised its FY 2022 revenue guidance to
$2.4 - $2.5 billion and adjusted EBITDA guidance to $240 - $265
million "to reflect dynamics we are currently experiencing in the
[D2C] mental health and chronic condition markets." On a conference
call with investors and analysts that day to discuss Teladoc's Q1
2022 results, Defendants largely attributed the Company's poor
performance, revised FY 2022 guidance, and $6.6 billion non-cash
goodwill impairment charge to increased competition in its
BetterHelp and chronic care businesses.
On this news, Teladoc's stock price fell $22.48 per share, or
40.15%, to close at $33.51 per share on April 28, 2022.
Wolf Haldenstein has extensive experience in the prosecution of
securities class actions and derivative litigation in state and
federal trial and appellate courts across the country. The firm has
attorneys in various practice areas; and offices in New York,
Chicago and San Diego. The reputation and expertise of this firm in
shareholder and other class litigation has been repeatedly
recognized by the courts, which have appointed it to major
positions in complex securities multi-district and consolidated
litigation.
If you wish to discuss this action or have any questions regarding
your rights and interests in this case, please immediately contact
Wolf Haldenstein by telephone at (800) 575-0735 or via e-mail at
classmember@whafh.com
Contact:
Wolf Haldenstein Adler Freeman & Herz LLP
Patrick Donovan, Esq.
Gregory Stone, Director of Case and Financial Analysis
Email: gstone@whafh.com, donovan@whafh.com or
classmember@whafh.com
Tel: (800) 575-0735 or (212) 545-4774
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules. [GN]
TERMINIX INT'L: Bid to Arbitrate & Dismiss Greene Suit Partly OK'd
------------------------------------------------------------------
In the case, CHARLES M. GREENE, individually, and on behalf of all
those similarly situated, Plaintiff v. THE TERMINIX INTERNATIONAL
COMPANY LIMITED PARTNERSHIP, Defendant, Case No.
22-cv-20199-BLOOM/McAliley (S.D. Fla.), Judge Beth Bloom of the
U.S. District Court for the Southern District of Florida grants in
part the Defendant's Motion to Compel Arbitration and to Dismiss.
I. Background
Mr. Greene commenced the case by filing a complaint against
Terminix in state court, alleging claims on behalf of himself and a
putative class, for violation of the Florida Deceptive and Unfair
Trade Practices Act ("FDUTPA"), the Florida Consumer Collection
Practices Act ("FCCPA"), breach of contract, and unjust enrichment.
The claims arise from Terminix's allegedly wrongful retention of
refunds due for time remaining on year-long residential pest
control service contracts, when those contracts are canceled.
Mr. Greene alleges that he purchased an annual service plan with
Terminix for the period between June 22, 2020 to June 22, 2021 for
$345 ("Service Contract"). On July 17, 2020, Greene sold his home
and thereafter informed Terminix of his decision to cancel the
Service Contract and demanded a prorated refund.
According to Greene, Terminix refused to process a refund until
Green filed an administrative complaint with the Florida Department
of Agriculture and Consumer Services, Division of Agricultural
Environmental Services. He followed with the filing of his
Complaint in state court. On Jan. 14, 2022, Terminix removed the
case to federal court pursuant to the Class Action Fairness Act of
2005 ("CAFA").
The cause is before the Court upon Terminix's Motion to Compel. In
the Motion, Terminix seeks to compel arbitration of the claims
asserted in the Complaint based upon an arbitration clause
contained in the agreement signed by Greene (the "Termite
Protection Plan" or "Plan"). Greene filed a Response, to which the
Defendant filed a Reply.
II. Discussion
Terminix argues that it has established each factor that courts
consider in determining a party's right to arbitrate: (1) there is
a valid agreement to arbitrate; (2) an arbitrable issue exists; and
(3) Terminix did not waive its arbitration rights. Greene does not
dispute that the second and third factors are satisfied, and the
Court finds that they are. Rather, Greene disputes that there was
an agreement to arbitrate. Judge Bloom therefore focuses her
analysis on whether there exists an agreement to arbitrate.
A. Terms of the Plan
Terminix asserts that Greene executed the Plan, which contains a
warning regarding arbitration above the signature block. As a
result, Terminix argues that Greene's claims are subject to the
arbitration provision and requests the Court compel arbitration.
Mr. Greene does not dispute that he signed a contract containing
the reference to mandatory arbitration but asserts that he did not
receive the "reverse side" of the contract, which contained the
"Terms and Conditions." Greene points to the documents accompanying
his Plan, which are attached to the Curtis Declaration, and do not
include the "Terms and Conditions." In addition, Greene points out
that Terminix states in its Motion that "it is unclear what
universe of documents Greene possessed at the time he signed the
agreement." As such, Greene contends that Terminix fails to show
that an agreement to arbitrate exists in the case.
Upon review, Judge Bloom disagrees.
B. Existence of an Agreement to Arbitrate
Mr. Greene does not dispute that he signed the contract which
references mandatory arbitration, the contract incorporates the
"Terms and Conditions," and the "Terms and Conditions" include a
mandatory arbitration provision. In addition, he suggests that the
evidence establishes that he made an offer to Terminix, which
Terminix accepted, and therefore that Terminix should be precluded
from varying its terms.
While somewhat creative, the argument is not persuasive, Judge
Bloom holds. Greene cites no authority to support his argument that
a customer's request for clarification of the terms of a service
contract may be interpreted to constitute an offer for purposes of
contract formation. The only fact Greene points to is that he did
not receive the "Terms and Conditions" containing the arbitration
provision. However, that fact alone does not render the arbitration
provision unenforceable, especially where he has not disputed
signing the contract and acknowledges the contract that he did sign
contains a clear reference to mandatory arbitration. Even assuming
Greene did not receive the "Terms and Conditions," the language
above the signature block on the contract he signed at the very
least put him on inquiry notice of the arbitration provision.
In addition, Greene presents no facts or circumstances to indicate
that he was prevented from reading the Plan documents. Nor does he
dispute that the Plan documents, including the "Terms and
Conditions," were available to him. Additionally, arbitration
"provisions will be upheld as valid unless defeated by fraud,
duress, unconscionability, or another 'generally applicable
contract defense.'" Greene has presented no evidence regarding any
applicable contract defenses; therefore, Judge Bloom concludes that
a valid agreement to arbitrate exists in the case.
C. Severing Class Waiver Terms
In the Motion, Terminix argues that, in addition to compelling
Greene to arbitrate his claims, the Court should preclude him from
pursuing class claims in the arbitration. Greene responds that
because the class waiver language is not present on the part of the
contract that he received and read, he should not be bound by it.
Indeed, "the availability of class arbitration is a question of
arbitrability, presumptively for a court to decide, because it is a
gateway question that determines what type of proceeding will
determine the parties' rights and obligations."
Judge Bloom explains that the applicable language states that "any
arbitration proceeding under this agreement will not be
consolidated or joined with any arbitration proceeding under any
other agreement, or involving any other property or premises, and
will not proceed as a class action." Greene's argument that the
Court should not enforce this provision because it does not appear
on the portion of the contract that he signed is unavailing.
Consistent with the Court's previous analysis, Greene is bound by
the language of the Plan as a whole, which includes the "Terms and
Conditions" containing the arbitration provision and class action
waiver. Therefore, Greene's claims must proceed in arbitration on
an individual basis.
D. Dismissal or Stay
Finally, Terminix argues that the Court should dismiss the case. In
response, Greene requests that rather than dismiss, the Court
should stay the case. Pursuant to the FAA,
As the Court has previously determined, a stay, rather than
dismissal is appropriate where a stay is requested. Greene requests
a stay rather than dismissal, and there is no argument that Greene
is in default. As such, Judge Bloom finds that a stay pending
arbitration is appropriate.
III. Conclusion
Accordingly, Judge Bloom grants in part the Motion. Greene's claims
will proceed through arbitration. The Clerk of Court is directed to
stay the case pending arbitration and will mark the case as closed
for administrative purposes only, and without prejudice to the
parties to move to reopen once the arbitration has been completed.
A full-text copy of the Court's June 15, 2022 Order is available at
https://tinyurl.com/2p8ct8rk from Leagle.com.
TEXAS: Court Refuses to Certify Falconer v. Collier as Class Action
-------------------------------------------------------------------
In the case, PERRY DEWAYNE FALCONER, #2214264, Plaintiff v. BRYAN
COLLIER, et al., Defendants, Case No. 6:21-cv-502-JDK-KNM (E.D.
Tex.), Judge Jeremy D. Kernodle of the U.S. District Court for the
Eastern District of Texas, Tyler Division, denies the Plaintiff's
request to certify a class action.
Plaintiff Falconer, A Texas Department of Criminal Justice inmate
proceeding pro se, brings the civil rights lawsuit under 42 U.S.C.
Section 1983. The case was referred to Magistrate Judge K. Nicole
Mitchell pursuant to 28 U.S.C. Section 636.
Before the Court is the request included in the Plaintiff's
complaint to certify the lawsuit as a class action. On May 16,
2022, Judge Mitchell issued a Report and Recommendation
recommending that the Court denies that request. The Plaintiff has
objected.
Judge Kernodle finds that the Plaintiff's objections are not
specific objections to the Report. Rather, the Plaintiff merely
provides conclusory reasons -- unrelated to the specific provisions
of Federal Rule of Civil Procedure 23(a) -- why he should be
allowed to form a class action. And the district court need not
consider frivolous, conclusory, or general objections.
Having conducted a de novo review of the record in the case and the
Magistrate Judge's Report, Judge Kernodle has determined that the
Report of the Magistrate Judge is correct, and the Plaintiff's
objections are without merit. Accordingly, he adopts the Report of
the Magistrate Judge as the opinion of the District Court. The
Plaintiff's request to certify a class action is denied.
A full-text copy of the Court's June 14, 2022 Order is available at
https://tinyurl.com/mu3vma9m from Leagle.com.
TRINET HR: Huang, et al., Seeks Denial of Bid to Junk Suit
----------------------------------------------------------
In the class action lawsuit captioned as SHIQIONG HUANG, CHRIS R.
STOKOWSKI, EVERETT UHL, MARK J. HEARON and MARY T. PATTERSON,
individually and on behalf of all others similarly situated, v.
TRINET HR III, INC., TRINET HR IV, INC., THE BOARD OF DIRECTORS OF
TRINET HR III, INC., THE BOARD OF DIRECTORS OF TRINET HR IV, INC.,
THE INVESTMENT COMMITTEE OF TRINET GROUP, INC., and JOHN DOES 1-30,
Case No. 8:20-cv-02293-VMC-TGW (M.D. Fla.), the Plaintiffs ask the
Court to enter an order denying the Defendants' motion to dismiss
in its entirety, or in the alternative, to grant them leave to
amend.
The Plaintiffs submit that good cause exists to permit the filing
of a short reply brief. The Opposition relies on a misunderstanding
of Article III constitutional standing in a suit brought under 29
U.S.C. section 1132(a)(2).
First, Defendants argue that the Named Plaintiffs lack Article III
standing to bring claims on behalf of the TriNet III Plan because
only Mary Patterson participated in the TriNet III Plan during the
Class Period and, as the Defendants argue, "she neither invested in
the funds challenged by plaintiffs in their complaint nor paid
allegedly excessive recordkeeping and
administrative fees."
Second, Defendants argue Plaintiffs cannot challenge the
performance of the Plan funds in which they were not personally
invested.
TriNet HR III, Inc. provides human resource services.
A copy of the Plaintiffs' motion dated June 21, 2022 is available
from PacerMonitor.com at https://bit.ly/3zS8emu at no extra
charge.[CC]
The Plaintiffs are represented by:
Mark K. Gyandoh, Esq.
Gabrielle P. Kelerchian, Esq.
Donald R. Reavey, Esq.
CAPOZZI ADLER, P.C.
312 Old Lancaster Road
Merion Station, PA 19066
Telephone: (610) 890-0200
Facsimile: (717) 233-4103
E-mail: markg@capozziadler.com
gabriellek@capozziadler.com
donr@capozziadler.com
- and -
Joseph M. Sternberg, Esq.
LANDERS & STERNBERG
Telephone: (407) 495-1893
Facsimile: (407) 362-6325
722 W. Smith Street
Orlando, FL 32804
E-mail: joseph@landersandsternberg.com
TRINITY PROPERTY: Court Denies Bid to Dismiss Calonia BIPA Suit
---------------------------------------------------------------
In the case, ISIDRO CALONIA, JR., on behalf of himself and others
similarly situated, Plaintiff v. TRINITY PROPERTY CONSULTANTS, LLC
and PACIFIC PERSONNEL SERVICES, INC., Defendants, Case No. 20 C
6130 (N.D. Ill.), Judge Thomas M. Durkin of the U.S. District
Court, for the Northern District of Illinois, Eastern Division,
denies the Defendants' motion to dismiss the complaint.
I. Background
Mr. Calonia brought the putative class action against Trinity and
Pacific, alleging violations of the Illinois Biometric Information
Privacy Act ("BIPA"), 740 ILCS 14/a, et seq.
Trinity manages residential housing complexes in Illinois. Pacific
provides employee management, benefit, and payroll services for
workers at Trinity's housing complexes. Calonia alleges he worked
for Pacific and Trinity in Illinois until sometime in April 2020.
As part of his employment, Calonia was required to scan his
fingerprint in a biometric timekeeping system. Based on this
timekeeping system, Calonia sued Trinity and Pacific for violations
of BIPA.
Relevant to the case, BIPA requires that a private entity that
possesses biometric identifiers or information must develop and
make available to the public a written policy establishing a
retention schedule and guidelines for permanently destroying the
information when the initial purpose for collecting it has been
satisfied, or within three years of an employee's last interaction
with the entity, whichever is sooner.
In addition, BIPA prohibits a private entity from collecting or
obtaining a person's biometric identifier or information unless it
first informs the person in writing that the information is being
collected or stored, as well as the purpose and length of term of
the collection, storage, and use, and receives a written release
executed by the person or his legally authorized representative.
Mr. Calonia's amended complaint alleges the Defendants did not: (1)
properly inform him in writing of the purpose and length of time
for which his fingerprints were being collected, stored, and used;
(2) provide and comply with a publicly available retention schedule
and guidelines for permanently destroying his fingerprints; or (3)
obtain a written release from him to collect his fingerprints. R.
19 at
The Defendants filed a motion to dismiss the complaint pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). R. 20. They
argue Calonia lacks standing to bring a suit against Trinity, and
that he otherwise fails to state a claim.
II. Analysis
A. Standing
The Defendants argue Calonia lacks standing to bring his claim
against Trinity because he was not employed by Trinity, depriving
the Court of subject matter jurisdiction. They contend Calonia was
employed by Pacific Personnel, not Trinity, and that the two
entities are separate. It argues there is no evidence that Trinity
ever actually possessed, retained, stored, or collected Calonia's
biometric information.
Mr. Calonia's complaint alleges he was jointly employed by both
Defendants through April 2020 (and his position was listed as
working for Trinity), and that they both required him to scan his
fingerprint. He also alleges Trinity oversees Pacific's collection
of biometric data. Calonia alleges that Pacific takes direction
from Trinity regarding the management and use of the biometric
system, and thus Trinity maintains some control in the process of
collecting, possessing, and storing the data.
Judge Durkin opines that Calonia need not present such evidence at
the pleadings stage, and it is sufficient that he has alleged as
much. The extent of Trinity's possession and control over Calonia's
biometric information, if any, is a factual issue to be determined
at the summary judgment stage. Calonia has standing to bring his
suit as he alleged he was jointly employed by both defendants and
that both defendants violated BIPA.
B. Sufficiency of the Pleadings
The Defendants argue they provided Calonia with the company's BIPA
Policy, which: (1) informed Calonia that biometric information
would be collected or stored via Pacific's timekeeping system (the
fingerprint scanning technology); (2) informed Calonia of the
specific purpose and length of time for which the biometric
information was being collected, stored, and used; and (3) provided
a publicly available retention schedule and guidelines for
destroying the biometric information. The Defendants contend
Calonia was required to acknowledge receipt of and consent to the
Policy during his training.
Judge Durkin holds that the Seventh Circuit has held that a
plaintiff's allegations that an employer violated its duty to
publicly disclose and comply with data retention and destruction
policies suffice to plead an injury under BIPA, citing Fox v.
Dakkota Integrated Sys., LLC, 980 F.3d 1146, 1149 (7th Cir. 2020).
Whether the defendants have complied with the BIPA requirement to
publicly disclose and comply with their retention policies is a
factual question that is better suited for summary judgment. At
this stage, Calonia has alleged such information was not publicly
available and that the Defendants failed to delete his information.
The motion to dismiss his claim under Section 15(a) is denied.
Judge Durkin also holds that while the Court does not have reason
to doubt Beck's knowledge of the training procedures and online
course, Calonia's contention that he never saw the forms or
completed that portion of the course is an issue that warrants
discovery and prevents the Court from dismissing at this time.
C. BIPA as Unconstitutional Special Legislation
The Defendants then argue BIPA is unconstitutional "special
legislation" that discriminates in favor of certain classes of
persons or entities, which is prohibited by Article IV, Section 13
of the Illinois Constitution. That section provides that "the
General Assembly will pass no special or local law when a general
law is or can be made applicable. Whether a general law is or can
be made applicable will be a matter for judicial determination."
Section 13 "prohibits the General Assembly from conferring a
special benefit or exclusive privilege on a person or group of
persons to the exclusion of others similarly situated." BIPA, the
Defendants argue, contains "several provisions that remove specific
organizations, entities and employers from its coverage," such as
financial institutions and government contractors, rendering it
arbitrary in its application.
Judge Durkin finds that the Defendants' argument has been rejected
by numerous courts upon finding that the BIPA exemptions are
rationally related to the state's legitimate interest and subject
to privacy requirements by statutes other than BIPA. They offer no
rationale warranting a contrary result, and simply ask the Court to
ignore the decisions finding BIPA constitutional. Given that there
are "conceivable bases for finding a rational relationship," Judge
Durkin declines to find BIPA constitutes unconstitutional special
legislation.
D. Preemption by the Illinois Workers' Compensation Act
Finally, the Defendants argue Calonia's claim is preempted by the
Illinois Workers' Compensation Act exclusive remedy provisions. The
Court stayed proceedings in the case pending the outcome of
McDonald v. Symphony Bronzeville Park, LLC, 2022 WL 318649. R. 30.
The Illinois Supreme Court ruled in McDonald on Feb. 3, 2022,
finding that the Illinois Workers' Compensation Act does not
preempt claims under BIPA. This ruling resolves the parties'
dispute on this issue, and the Defendants make no attempt to
distinguish the case from McDonald. The motion to dismiss based on
preemption is denied.
III. Conclusion
For the foregoing reasons, the Defendants' motion to dismiss is
denied.
A full-text copy of the Court's June 14, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/3xn9wz6s from
Leagle.com.
TRUIST BANK: Third Circuit Affirms Dismissal of Gericke Class Suit
------------------------------------------------------------------
In the case, JOHN GERICKE, Individually and on behalf of all others
similarly situated, Appellant v. TRUIST d/b/a Branch Banking and
Trust Company; JOHN DOES 1-10, Case No. 21-1776 (3d Cir.), the U.S.
Court of Appeals for the Third Circuit affirms the order of the
District Court dismissing the putative class action complaint.
I. Introduction
Plaintiff Gericke filed a complaint asserting violations of New
Jersey consumer protection laws based on Defendant Truist Bank's
issuance of an Internal Revenue Service ("IRS") Form 1099-C for
cancellation of debt. After issuing the Form 1099-C, Truist
notified Gericke that it intended to continue efforts to collect on
a judgment against Gericke's property. Gericke argues this was
deceptive and that Truist was required to cancel or "actually
discharge" his obligation to repay the underlying judgment upon
issuance of the Form 1099-C. The plain language of the relevant IRS
regulations, however, forecloses Gericke's argument. The Third
Circuit will therefore affirm the order of the District Court
dismissing the putative class action complaint.
II. Background
In March 2012, Truist's predecessor obtained a judgment in the
amount of $244,248.49 against Gericke and his wife. After Gericke
failed to satisfy the judgment, Truist issued an IRS Form 1099-C to
Gericke for the 2018 tax year, indicating that $199,427.80 was the
"amount of the debt discharged."
Truist's obligation to file a Form 1099-C stems from the Internal
Revenue Code and the corresponding IRS regulations. Under 26 U.S.C.
Section 6050P(a), "any applicable entity which discharges (in whole
or in part) the indebtedness of any person during any calendar
year" will file an information return.
The regulations implementing Section 6050P set forth when a
creditor must file a Form 1099-C to satisfy the information return
requirement: Any applicable entity that discharges an indebtedness
of any person of at least $600 during a calendar year must file an
information return on Form 1099-C with the Internal Revenue
Service. Solely for purposes of the reporting requirements of
section 6050P and this section, a discharge of indebtedness is
deemed to have occurred if and only if there has occurred an
identifiable event described in paragraph (b)(2) of this section,
whether or not an actual discharge of indebtedness has occurred on
or before the date on which the identifiable event has occurred.
Paragraph (b)(2) of this regulation lists seven "identifiable
events," including the debtor filing for bankruptcy, the expiration
of the statute of limitations for collection of the debt,
settlement of the debt, and a creditor's decision "to discontinue
collection activity and discharge debt."
After Truist filed the Form 1099-C, Gericke's counsel and Truist
exchanged correspondence in which Gericke attempted to settle and
discharge the judgment. Truist noted that Gericke's "Form 1099-C
was filed in accordance with the IRS regulations to report an
unpaid debt as income. The bank's filing of the Form 1099-C in
compliance with IRS regulations does not release the client's
judgment as it has not been settled or paid."
Mr. Gericke initially filed the putative class action in New Jersey
state court, asserting claims under the New Jersey Consumer Fraud
Act (the "CFA") and the New Jersey Truth-in-Consumer Contract,
Warranty and Notice Act (the "TCCWNA"). Truist removed the action
to the U.S. District Court for the District of New Jersey, and the
District Court thereafter granted Truist's motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). Gericke
timely appealed.
III. Discussion
Mr. Gericke alleges that "creditors such as Truist should not send
borrowers such as Gericke a 1099-C Form unless the debt is really
canceled by Truist. If, after issuing a 1099-C Form, creditors fail
to confirm for debtors that the debt is forgiven, they should
rescind the 1099-C Form. Otherwise, the unrescinded 099-C Form
violates applicable federal regulations."
Mr. Gericke asserts that Truist's actions constitute an "unlawful
practice" under the CFA, N.J. Stat. Ann. Section 56.8-1, et seq. He
also contends that the issuance of the Form 1099-C constitutes a
"writing containing a provision that 'violates a clearly
established legal right of a consumer or responsibility of a
seller, lessor, creditor, lender or bailee' as established by State
or Federal law" under the TCCWNA.
The Third Circuit disagrees, as the plain language of 26 C.F.R.
Section 1.6050P-1 forecloses Gericke's argument. Contrary to
Gericke's argument, a creditor is not necessarily required to
cancel or actually discharge the underlying debt upon issuance of a
Form 1099-C. The IRS regulations explicitly create a reporting
requirement and provide that a creditor may have to file a Form
1099-C "whether or not an actual discharge of indebtedness has
occurred on or before the date on which the identifiable event has
occurred." The plain language of the regulation remains
irreconcilable with Gericke's argument that a creditor cannot issue
a Form 1099-C unless it cancels or actually discharges the
underlying debt.
Because it concludes that issuance of a Form 1099-C does not
require cancellation or actual discharge of the underlying debt,
the Third Circuit agrees with the District Court that Gericke's CFA
and TCCWNA claims fail as a matter of law. It therefore finds it
unnecessary to consider Truist's remaining arguments for
dismissal.
IV. Disposition
For the foregoing reasons, the Third Circuit affirms the District
Court's order.
A full-text copy of the Court's June 14, 2022 Opinion is available
at https://tinyurl.com/3hd8cahk from Leagle.com.
TRUSTPILOT INC: 2nd Circuit Affirms Class Action Dismissal
----------------------------------------------------------
International law firm McDermott Will & Emery represented
Trustpilot, Inc., a leading online business review platform, in
obtaining the affirmance of the dismissal of a class action
complaint with prejudice by the United States Court of Appeals for
the Second Circuit.
"We are gratified that the Second Circuit agreed with Judge
Rakoff's decision to dismiss the class action brought against our
client, absolving Trustpilot of all deceptive business practice and
related claims brought against them," Andrew Kratenstein,
McDermott's lead partner in the case and who argued the appeal,
said. "Trustpilot is a highly respected company, and we are
delighted to have succeeded in achieving this complete victory for
our client."
Trustpilot is a digital platform that brings businesses and
consumers together to foster trust and inspire collaboration,
allowing users to post reviews of businesses on its website.
Businesses are able to contract with Trustpilot to collect and
manage information concerning the reviews, providing subscriptions
that allow businesses to access consumer insight data and obtain
consulting services concerning how reviews of the business are
displayed online. Per the terms of the subscription agreement,
Trustpilot automatically renews these subscriptions unless the
subscriber notifies Trustpilot of its desire to cancel at least 30
days before the end of the subscription's term.
Plaintiffs sued on behalf of a putative nationwide class of
Trustpilot subscribers, asserting claims for deceptive business
practices under New York law and other states' unfair business
practices statutes, as well as claims for breach of contract,
breach of the implied covenant of good faith and fair dealing and
unjust enrichment.
On June 29, 2021, Judge Jed Rakoff of the United States District
Court for the Southern District of New York agreed with the
McDermott team's arguments and granted Trustpilot's motion to
dismiss the case with prejudice. The Plaintiffs then appealed. The
Second Circuit agreed with McDermott's argument that the
Plaintiffs' contractual claims failed because the parties' valid
and enforceable subscription agreements clearly disclosed
Trustpilot's auto-renewal policies and did not require Trustpilot
to send renewal-reminders. The Second Circuit also agreed that the
NYGBL §§ 349-50 claim was properly dismissed because Plaintiffs
failed to allege that the conduct was deceptive. Finally, the
Second Circuit held that Plaintiffs' NYGOL Section 5-903 claim
failed because any connection to personal property was merely
incidental to Trustpilot's provision of consulting, analytical or
administrative services and thus the statute did not apply.
The McDermott team was led by Andrew Kratenstein and William
Donovan, Jr. and included Caroline Incledon and Kierstin Fowler.
The full case name is Trustpilot Damages LLC, et al. v. Trustpilot
Inc.
ABOUT MCDERMOTT
McDermott Will & Emery partners with leaders around the world to
fuel missions, knock down barriers and shape markets. Our team
works seamlessly across practices and industries to deliver highly
effective solutions that propel success. More than 1,200 lawyers
strong, we bring our personal passion and legal prowess to bear in
every matter for our clients and the people they serve. [GN]
TUPPERWARE BRANDS: Bernstein Liebhard Reminds of Aug. 15 Deadline
-----------------------------------------------------------------
Did you lose money on investments in Tupperware Brands? If so,
please visit Tupperware Brands Corporation Shareholder Class Action
Lawsuit or contact Peter Allocco at (212) 951-2030 or
pallocco@bernlieb.com to discuss your rights.
Bernstein Liebhard LLP on June 15 disclosed that a securities class
action lawsuit has been filed on behalf of investors who purchased
or acquired the securities of Tupperware Brands Corporation
("Tupperware" or the "Company") (NYSE: TUP) between November 3,
2021 and May 3, 2022, inclusive (the "Class Period"). The lawsuit
was filed in the United States District Court for the Southern
District of New York and alleges violations of the Securities
Exchange Act of 1934.
Tupperware operates as a consumer products company worldwide. The
Company manufactures, markets, and sells design-centric
preparation, storage, and serving solutions for the kitchen and
home, as well as a line of cookware, knives, microwave products,
microfiber textiles, water-filtration related items, and an array
of products for on-the-go consumers under the Tupperware brand
name.
Plaintiff alleges that throughout the Class Period, Defendants made
materially false and misleading statements regarding the Company's
business, operations, and compliance policies. Specifically,
Defendants allegedly made false and/or misleading statements and/or
failed to disclose that: (i) Tupperware was facing significant
challenges in maintaining its earnings and sales performance; (ii)
accordingly, Tupperware's full year 2022 guidance was unrealistic
and/or unsustainable; and (iii) all the foregoing, once revealed,
was likely to have a material negative impact on Tupperware's
financial condition.
On May 4, 2022, Tupperware announced its financial results for the
first quarter of 2022. Among other items, Tupperware reported
adjusted earnings per share from continuing operations and net
sales that fell well short of consensus estimates, withdrew its
full year 2022 guidance, and named a new Chief Financial Officer.
The Company attributed the poor performance to the conflict in
Russia and Ukraine. However, when pressed by analysts on a
conference call, the Company acknowledged that Russia and Ukraine
only accounted for 2% of its revenue.
On this news, the Company's stock price fell $5.76 per share, or
over 32%, to close at $12.15 per share on May 4, 2022.
If you wish to serve as lead plaintiff, you must move the Court no
later than August 15, 2022. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. Your ability to share in any recovery doesn't require
that you serve as lead plaintiff. If you choose to take no action,
you may remain an absent class member.
If you purchased or acquired TUP securities, and/or would like to
discuss your legal rights and options please visit Tupperware
Brands Corporation Shareholder Class Action Lawsuit or contact
Peter Allocco at (212) 951-2030 or pallocco@bernlieb.com.
Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion
for its clients. In addition to representing individual investors,
the Firm has been retained by some of the largest public and
private pension funds in the country to monitor their assets and
pursue litigation on their behalf. As a result of its success
litigating hundreds of lawsuits and class actions, the Firm has
been named to The National Law Journal's "Plaintiffs' Hot List"
thirteen times and listed in The Legal 500 for ten consecutive
years.
Contact Information:
Peter Allocco
Bernstein Liebhard LLP
https://www.bernlieb.com
(212) 951-2030
pallocco@bernlieb.com [GN]
TUPPERWARE BRANDS: Bragar Eagel Reminds of August 15 Deadline
-------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized stockholder
rights law firm, on June 16 disclosed that a class action lawsuit
has been filed against Tupperware Brands Corporation ("Tupperware"
or the "Company") (NYSE: TUP) in the United States District Court
for the Southern District of New York on behalf of all persons and
entities who purchased or otherwise acquired Tupperware securities
between November 3, 2021 and May 3, 2022, both dates inclusive (the
"Class Period"). Investors have until August 15, 2022 to apply to
the Court to be appointed as lead plaintiff in the lawsuit.
On May 4, 2022, Tupperware announced its financial results for the
first quarter of 2022. Among other items, Tupperware reported
adjusted earnings per share from continuing operations and net
sales that fell well short of consensus estimates and withdrew its
full year 2022 guidance and named a new Chief Financial Officer.
The Company attributed the poor performance to the conflict in
Russian and Ukraine. However, when pressed by analysts on a
conference call, the Company acknowledged that Russian and Ukraine
only accounted for 2% of its revenue.
On this news, Tupperware's stock price fell $5.76 per share, or
32.16%, to close at $12.15 per share on May 4, 2022.
The complaint alleges that, throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operations, and compliance policies.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that: (i) Tupperware was facing
significant challenges in maintain its earning and sales
performance; (ii) accordingly, Tupperware's full year 2022 guidance
was unrealistic and/or unsustainable; (iii) all the foregoing, once
revealed, was likely to have a material negative impact on
Tupperware's financial condition; and (iv) as a result, the
Company's public statements were materially false and misleading at
all relevant times.
If you purchased or otherwise acquired Tupperware shares and
suffered a loss, are a long-term stockholder, have information,
would like to learn more about these claims, or have any questions
concerning this announcement or your rights or interests with
respect to these matters, please contact Brandon Walker or Melissa
Fortunato by email at investigations@bespc.com, telephone at (212)
355-4648, or by filling out this contact form. There is no cost or
obligation to you.
About Bragar Eagel & Squire, P.C.:
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes.
Contacts
Contact Information:
Bragar Eagel & Squire, P.C.
Brandon Walker, Esq.
Melissa Fortunato, Esq.
(212) 355-4648
investigations@bespc.com
www.bespc.com [GN]
TUPPERWARE BRANDS: Pomerantz LLP Reminds of August 15 Deadline
--------------------------------------------------------------
Pomerantz LLP on June 14 disclosed that a class action lawsuit has
been filed against Tupperware Brands Corporation ("Tupperware" or
the "Company") (NYSE: TUP) and certain of its officers. The class
action, filed in the United States District Court for the Southern
District of New York, and docketed under 22-cv-04976, is on behalf
of a class consisting of all persons and entities other than
Defendants that purchased or otherwise acquired Tupperware
securities between November 3, 2021 and May 3, 2022, both dates
inclusive (the "Class Period"), seeking to recover damages caused
by Defendants' violations of the federal securities laws and to
pursue remedies under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5
promulgated thereunder, against the Company and certain of its top
officials.
If you are a shareholder who purchased or otherwise acquired
Tupperware securities during the Class Period, you have until
August 15, 2022 to ask the Court to appoint you as Lead Plaintiff
for the class. A copy of the Complaint can be obtained at
www.pomerantzlaw.com. To discuss this action, contact Robert S.
Willoughby at newaction@pomlaw.com or 888.476.6529 (or
888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail
are encouraged to include their mailing address, telephone number,
and the number of shares purchased.
Tupperware operates as a consumer products company worldwide. The
Company manufactures, markets, and sells design-centric
preparation, storage, and serving solutions for the kitchen and
home, as well as a line of cookware, knives, microwave products,
microfiber textiles, water-filtration related items, and an array
of products for on-the-go consumers under the Tupperware brand
name.
The complaint alleges that, throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operations, and compliance policies.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that: (i) Tupperware was facing
significant challenges in maintaining its earnings and sales
performance; (ii) accordingly, Tupperware's full year 2022 guidance
was unrealistic and/or unsustainable; (iii) all the foregoing, once
revealed, was likely to have a material negative impact on
Tupperware's financial condition; and (iv) as a result, the
Company's public statements were materially false and misleading at
all relevant times.
On May 4, 2022, Tupperware announced its financial results for the
first quarter of 2022. Among other items, Tupperware reported
adjusted earnings per share from continuing operations and net
sales that fell well short of consensus estimates and withdrew its
full year 2022 guidance and named a new Chief Financial Officer.
The Company attributed the poor performance to the conflict in
Russia and Ukraine. However, when pressed by analysts on a
conference call, the Company acknowledged that Russia and Ukraine
only accounted for 2% of its revenue.
On this news, Tupperware's stock price fell $5.76 per share, or
32.16%, to close at $12.15 per share on May 4, 2022.
Pomerantz LLP, with offices in New York, Chicago, Los Angeles,
Paris, and Tel Aviv, is acknowledged as one of the premier firms in
the areas of corporate, securities, and antitrust class litigation.
Founded by the late Abraham L. Pomerantz, known as the dean of the
class action bar, Pomerantz pioneered the field of securities class
actions. Today, more than 85 years later, Pomerantz continues in
the tradition he established, fighting for the rights of the
victims of securities fraud, breaches of fiduciary duty, and
corporate misconduct. The Firm has recovered numerous
multimillion-dollar damages awards on behalf of class members. See
www.pomlaw.com
CONTACT:
Robert S. Willoughby
Pomerantz LLP
rswilloughby@pomlaw.com
888-476-6529 ext. 7980 [GN]
TUPPERWARE BRANDS: Robbins Geller Reminds of August 15 Deadline
---------------------------------------------------------------
Robbins Geller Rudman & Dowd LLP on June 14 dsiclosed that
purchasers or acquirers of Tupperware Brands Corporation (NYSE:
TUP) securities between November 3, 2021 and May 3, 2022, inclusive
(the "Class Period") have until August 15, 2022 to seek appointment
as lead plaintiff in Edge v. Tupperware Brands Corporation, No.
22-cv-04976 (S.D.N.Y.). The Tupperware class action lawsuit charges
Tupperware and certain of its top executive officers with
violations of the Securities Exchange Act of 1934.
If you suffered substantial losses and wish to serve as lead
plaintiff, please provide your information here:
https://www.rgrdlaw.com/cases-tupperware-brands-corporation-class-action-lawsuit-tup.html
You can also contact attorney J.C. Sanchez of Robbins Geller by
calling 800/449-4900 or via e-mail at jsanchez@rgrdlaw.com.
CASE ALLEGATIONS: The Tupperware class action lawsuit alleges that,
throughout the Class Period, defendants made false and misleading
statements and failed to disclose that: (i) Tupperware was facing
significant challenges in maintaining its earnings and sales
performance; (ii) accordingly, Tupperware's full year 2022 guidance
was unrealistic and/or unsustainable; (iii) all the foregoing, once
revealed, was likely to have a material negative impact on
Tupperware's financial condition; and (iv) as a result,
Tupperware's public statements were materially false and misleading
at all relevant times.
On May 4, 2022, Tupperware announced its financial results for the
first quarter of 2022. Among other items, Tupperware reported
adjusted earnings per share from continuing operations and net
sales that fell well short of consensus estimates and withdrew its
full year 2022 guidance and named a new Chief Financial Officer.
Tupperware attributed the poor performance to the conflict in
Russia and Ukraine. However, when pressed by analysts on a
conference call, Tupperware acknowledged that Russia and Ukraine
only accounted for 2% of its revenue. On this news, Tupperware's
stock price fell by more than 32%, damaging investors.
THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation
Reform Act of 1995 permits any investor who purchased Tupperware
securities shares during the Class Period to seek appointment as
lead plaintiff. A lead plaintiff is generally the movant with the
greatest financial interest in the relief sought by the putative
class who is also typical and adequate of the putative class. A
lead plaintiff acts on behalf of all other class members in
directing the Tupperware class action lawsuit. The lead plaintiff
can select a law firm of its choice to litigate the Tupperware
class action lawsuit. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff of the Tupperware class action lawsuit.
ABOUT ROBBINS GELLER: Robbins Geller is one of the world's leading
complex class action firms representing plaintiffs in securities
fraud cases. The Firm is ranked #1 on the 2021 ISS Securities Class
Action Services Top 50 Report for recovering nearly $2 billion for
investors last year alone - more than triple the amount recovered
by any other plaintiffs' firm. With 200 lawyers in 9 offices,
Robbins Geller is one of the largest plaintiffs' firms in the world
and the Firm's attorneys have obtained many of the largest
securities class action recoveries in history, including the
largest securities class action recovery ever - $7.2 billion - in
In re Enron Corp. Sec. Litig. Please visit the following page for
more information:
https://www.rgrdlaw.com/services-litigation-securities-fraud.html
Attorney advertising.
Past results do not guarantee future outcomes.
Services may be performed by attorneys in any of our offices.
Contacts:
Robbins Geller Rudman & Dowd LLP
655 W. Broadway, San Diego, CA 92101
J.C. Sanchez, 800-449-4900
jsanchez@rgrdlaw.com [GN]
UNILEVER PLC: Faces Class in New York Over Drop in Share Price
--------------------------------------------------------------
Cleveland Jewish News reports that a U.S. shareholder filed a
class-action suit against Unilever Plc in New York federal court on
June 15, claiming the British-based global consumer goods company
concealed a boycott of Israel by its Ben & Jerry's ice cream brand
that shaved billions off its stock market value.
The suit, filed by The City of St. Clair Shores Police and Fire
Retirement System, a Michigan retirement fund, asserts that
Unilever hid a decision of Ben & Jerry's board of directors to stop
selling its products in areas it considered illegally occupied by
Israel. Although Ben & Jerry's is a wholly owned subsidiary of
Unilever, it maintains an independent board, focused on the
company's social mission.
The complaint says that Unilever omitted the July 2020 Ben &
Jerry's boycott decision from its disclosures because it knew it
could create significant downside for the company. The decision did
not become public until Ben & Jerry's announced it on Twitter and
on its website about a year later, on July 19, 2021.
The ice-cream maker's decision "appears to arise out of the
boycott, divestment, and sanctions ("BDS") movement," the complaint
states. It noted the BDS movement is "controversial," pointing to a
U.S. House of Representatives resolution on
July 24, 2019, condemning BDS by a vote of 398-17.
"Additionally, and of particular significance here, 35 U.S. states
have adopted laws, executive orders, or resolutions aimed at
discouraging boycotts, divestment, and sanctions of Israel
("Anti-BDS Legislation")," the suit continues.
"Unilever thus had ample reason to conceal the B&J Board resolution
and thereafter to mischaracterize it once Unilever's hand-selected
CEO finally 'operationalized' it," it continues.
New York, New Jersey, Florida, Texas, Illinois, Colorado and
Arizona, ultimately divested their pension fund holdings in
Unilever, according to the suit, and the market value of Unilever
"suffered significant losses and damages" as a result.
In addition to Unilever, company CEO Alan Jope, Chief Legal Officer
and Group Secretary Ritva Sotamaa and Chairman and a Director Nils
Andersen, among others, are named as individual defendants.
This suit was filed on behalf of anyone who acquired Unilever
American Depositary Receipts ("ADRs") between September 2, 2020 and
July 21, 2021.
The post Class-action suit launched against Unilever over Ben &
Jerry's Israel boycott appeared first on JNS.org. [GN]
UNILEVER PLC: Robbins Geller Reminds of August 15 Deadline
----------------------------------------------------------
Robbins Geller Rudman & Dowd LLP on June 15 disclosed that it has
filed a class action lawsuit seeking to represent purchasers or
acquirers of Unilever PLC (NYSE: UL) American Depository Receipts
("ADRs") between September 2, 2020 and July 21, 2021, inclusive
(the "Class Period"). The Unilever class action lawsuit - City of
St. Clair Shores Police and Fire Retirement System v. Unilever PLC,
No. 22-cv-05011 (S.D.N.Y.) - charges Unilever as well as certain of
its top executives and directors with violations of the Securities
Exchange Act of 1934.
If you suffered substantial losses and wish to serve as lead
plaintiff, please submit your information here:
https://www.rgrdlaw.com/cases-unilever-plc-class-action-lawsuit-ul.html
You can also contact attorney J.C. Sanchez of Robbins Geller by
calling 800/449-4900 or via e-mail at jsanchez@rgrdlaw.com. Lead
plaintiff motions for the Unilever class action lawsuit must be
filed with the court no later than August 15, 2022.
CASE ALLEGATIONS: Unilever is a British multinational consumer
goods company. Ben & Jerry's ice cream is one of Unilever's marquee
brands, which remains a wholly owned subsidiary of Unilever with an
independent board addressing Ben & Jerry's Social Mission. In July
2020, Ben & Jerry's board passed a resolution to end sales of Ben &
Jerry's products in areas that the board considers to be
Palestinian territories illegally occupied by Israel.
The Unilever class action lawsuit alleges that, throughout the
Class Period, defendants made false and misleading statements and
failed to disclose that in July 2020, Ben & Jerry's board passed a
resolution to end sales of its ice cream in "Occupied Palestinian
Territory" as well as the risks attendant to the board's decision.
Additionally, Unilever's s description of its legal risks was
materially false and misleading because Unilever acknowledged that
complying with all applicable laws and regulations was important
but omitted discussing Ben & Jerry's boycott decision, which risked
adverse governmental actions for violations of laws, executive
orders, or resolutions aimed at discouraging boycotts, divestment,
and sanctions of Israel adopted by 35 U.S. states ("Anti-BDS
Legislation").
On July 19, 2021, Unilever and its hand-picked Ben & Jerry's CEO,
Matthew McCarthy, finally "operationalized" the Ben & Jerry's
board's resolution to boycott Israel. Ben & Jerry's announced on
its website and through its Twitter account that, upon the
expiration of the current licensing agreement by which its products
had been distributed in Israel for decades, Ben & Jerry's would end
sales of its ice cream in "Occupied Palestinian Territory" but Ben
& Jerry's would purportedly continue to sell its products in
Israel. On this news, the price of Unilever ADRs fell.
Then, July 22, 2021, CNBC reported that the states of Texas and
Florida were examining Ben & Jerry's actions in connection with the
states' Anti-BDS Legislation. In addition to condemnation of Ben &
Jerry's boycott by Texas Governor Greg Abbott, CNBC reported that
Texas State Comptroller Glenn Hegar, who controls billions of
dollars in assets for Texas' public pension funds, had already told
his office to take action. Similarly, the state of Florida's CFO
Jimmy Patronis, who controls Florida's public pension funds, told
CNBC that his office was already discussing the issue. In a letter
reportedly sent to Ben & Jerry's CEO, Patronis wrote: "It is my
belief that Ben & Jerry's brazen refusal to do business in Israel
will result in your placement on the Scrutinized Companies that
Boycott Israel List." The letter also stated that Florida would
then "be prohibited from investing in Ben & Jerry's or its parent
company, Unilever." Being added to the list also meant that
Unilever would not be able to enter or renew contracts with the
state or any municipality in Florida. On this news, the price of
Unilever ADRs fell more than 5%, further damaging investors.
Ultimately, the states of New York, New Jersey, Florida, Texas,
Illinois, Colorado, and Arizona announced decisions to divest their
pension fund investments in Unilever due to violations of their
Anti-BDS Legislation.
The plaintiff is represented by Robbins Geller, which has extensive
experience in prosecuting investor class actions including actions
involving financial fraud. You can view a copy of the complaint by
clicking here.
THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation
Reform Act of 1995 permits any investor who purchased or acquired
Unilever ADRs during the Class Period to seek appointment as lead
plaintiff in the Unilever class action lawsuit. A lead plaintiff is
generally the movant with the greatest financial interest in the
relief sought by the putative class who is also typical and
adequate of the putative class.
ABOUT ROBBINS GELLER: Robbins Geller is one of the world's leading
complex class action firms representing plaintiffs in securities
fraud cases. The Firm is ranked #1 on the 2021 ISS Securities Class
Action Services Top 50 Report for recovering nearly $2 billion for
investors last year alone -- more than triple the amount recovered
by any other plaintiffs' firm. With 200 lawyers in 9 offices,
Robbins Geller is one of the largest plaintiffs' firms in the world
and the Firm's attorneys have obtained many of the largest
securities class action recoveries in history, including the
largest securities class action recovery ever -- $7.2 billion -- in
In re Enron Corp. Sec. Litig. Please visit the following page for
more information:
https://www.rgrdlaw.com/services-litigation-securities-fraud.html
Attorney advertising.
Past results do not guarantee future outcomes.
Services may be performed by attorneys in any of our offices.
Contacts:
Robbins Geller Rudman & Dowd LLP
655 W. Broadway, San Diego, CA 92101
J.C. Sanchez, 800-449-4900
jsanchez@rgrdlaw.com [GN]
UNILEVER UNITED: August 16 Deadline to Oppose Class Cert Bid Sought
-------------------------------------------------------------------
In the class action lawsuit captioned as LISA VIZCARRA,
individually and on behalf of all others similarly situated, v.
UNILEVER UNITED STATES, INC., Case No. (), the Parties stipulate
and ask that the Court order the following:
1. Unilever's date to oppose Plaintiff's renewed motion for
class certification shall be August 16, 2022;
2. Plaintiff's date to submit a reply brief on its renewed
motion for class certification shall be September 6,
2022; and
3. The present hearing date of September 27, 2022, for the
Plaintiff's motion for class certification, shall remain
unchanged, or set to such other date as suits the Court.
Unilever manufactures personal care products.
A copy of the Parties' motion dated June 21, 2022 is available from
PacerMonitor.com at https://bit.ly/3xTXscW at no extra charge.[CC]
The Plaintiff is represented by:
Michael R. Reese, Esq.
George V. Granade, Esq.
REESE LLP
100 West 93rd Street, 16th Floor
New York, NY 10025
Telephone: (212) 643-0500
Facsimile: (212) 253-4272
E-mail: mreese@reesellp.com
granade@reesellp.com
- and -
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
505 Northern Boulevard, Suite 311
Great Neck, NY 11021
Telephone: (516) 303-0552
Facsimile: (516) 234-7800
E-mail: spencer@spencersheehan.com
The Defendant is represented by:
Christopher A. Nedeau,Esq.
THE NEDEAU LAW FIRM
750 Battery Street, 7th Floor
San Francisco, CA 94111
Telephone: (415) 516-4010
E-mail: cnedeau@nedeaulaw.net
- and -
August T. Horvath, Esq.
Philip C. Swain, Esq.
FOLEY HOAG LLP
1301 Ave. of the Americas, 25th floor
New York, NY 10019
Telephone: (212) 812-0344
E-mail: AHorvath@FoleyHoag.com
pcs@foleyhoag.com
UNITED STATES: Detained Foreign Nationals Can't File Class Suits
----------------------------------------------------------------
Bethany Blankley, writing for The Center Square, reports that the
U.S. Supreme Court ruled that foreign nationals in the U.S.
illegally and detained on immigration charges can't file class
action lawsuits.
The court ruled 6-3 in Garland v. Aleman Gonzalez with Justice
Samuel Alito writing for the majority. Justice Sonia Sotomayor
wrote a partial dissent with Justices Elena Kagan and Stephen
Breyer joining.
The court reversed a ruling issued by the Ninth Circuit Court of
Appeals that allowed detained foreign nationals to file
class-action lawsuits who also demanded bond hearings for their
release. By doing so, the Supreme Court effectively shut down such
lawsuits from being filed in the future.
At issue are two cases brought by Mexican and El Salvadoran
nationals who sued the federal government for detaining them
according to federal law after they reentered the U.S. illegally.
They alleged they had a right to file a class action lawsuit and
were entitled to a bond hearing.
One case was brought by Mexican nationals Esteban Aleman Gonzalez
and Jose Eduardo Gutierrez Sanchez, who were detained on
immigration charges under the Immigration and Naturalization Act
after they'd reentered the U.S. illegally. They filed a putative
class action in the U.S. District Court for the Northern District
of California alleging they were entitled to bond hearings due to
the length of time they were detained. The District Court certified
a class of similarly situated plaintiffs and enjoined the federal
government from detaining them for more than 180 days without
providing them with a bond hearing. A divided panel of the Ninth
Circuit affirmed the lower court's ruling.
Another plaintiff, Edwin Flores Tejada, a native and citizen of El
Salvador, also reentered the U.S. illegally and was also detained
according to federal law. He sued in the Western District of
Washington, alleging that he was entitled to a bond hearing. The
District Court certified a class, granted partial summary judgment
against the government, and entered class-wide injunctive relief,
which a divided panel of the Ninth Circuit also affirmed.
At issue before the Supreme Court was whether the lower courts had
jurisdiction to hear their requests and provide class-wide
injunctive relief under the INA.
The Supreme Court ruled they did not.
"We hold that the District Courts exceeded their jurisdiction in
awarding such relief," Alito wrote for the majority. He also said,
"Respondents advance two counter-arguments, but both fail."
"The classwide injunctive relief awarded in these cases was
unlawful," the court concluded. "The judgments of the Court of
Appeals are reversed, and the cases are remanded for further
proceedings consistent with this opinion."
Section 1252 of the INA, Alito noted, "generally prohibits lower
courts from entering injunctions that order federal officials to
take or to refrain from taking actions to enforce, implement, or
otherwise carry out the specified statutory provisions."
The Immigration Reform Law Institute, which had filed two briefs
with the Supreme Court urging it to review the case, and later, to
reverse the Ninth Circuit's ruling, argued that foreign nationals
in the U.S. illegally who are detained can leave their detention
any time by returning to their home country. Since the plaintiffs
in the cases didn't voluntarily leave, they voluntarily chose to be
detained, IRLI notes. As a result, they "lack any due process right
to liberty except any that Congress has provided by statute – and
it has provided no such right," it argued.
"The detention of removable aliens, whether they are illegal aliens
or criminal aliens, is fundamentally different from detention as a
sentence for a crime," IRLI's executive director and general
counsel Dale Wilcox said after the ruling.
"The United States is not holding them prisoner against their
will," he added. "Rather, it is allowing them to remain in the
United States while they challenge their deportation in the courts,
and setting the conditions for their remaining here. If they don't
like those conditions, they can always leave detention and return
to their native land. We are pleased that the Court reached the
right result here, and squelched these lawsuits."
Justice Sonia Sotomayor wrote a partial dissent, with Kagan and
Breyer joining. She wrote that the court "reaches this conclusion
in a purportedly textualist opinion that, in truth, elevates
piecemeal dictionary definitions and policy concerns over plain
meaning and context. I respectfully dissent from the Court's
blinkered analysis, which will leave many vulnerable noncitizens
unable to protect their rights."
In a unanimous decision also released on June 13, the Supreme Court
ruled that federal law doesn't entitle foreign nationals in the
country illegally aren't entitled to a bond hearing. [GN]
UNITED STATES: New Jersey Court Tosses Noriega's Amended Complaint
------------------------------------------------------------------
In the case, JEAN NORIEGA, Plaintiff v. UNITED STATES OF AMERICA,
Defendants, Civil Action No. 21-3589 (MCA) (D.N.J.), Judge Madeline
Cox Arleo of the U.S. District Court for the District of New Jersey
dismisses the Plaintiffs' Amended Complaint.
I. Background
The matter has been opened to the Court by the Plaintiffs filing of
an Amended Complaint. The Court previously granted the Plaintiff's
application to proceed in forma pauperis and also granted their
motion to file an Amended Complaint.
The Plaintiff's Amended Complaint is one of numerous, nearly
identical amended complaints, from federal pretrial detainees at
the Essex County Correctional Facility, purportedly seeking to
proceed as a class action -- McClain v. United States, No. 21-4997,
2021 WL 2224270, at *1 (D.N.J. June 2, 2021); Middlebrooks v.
United States, No. 21-9225, 2021 WL 2224308, at *1 (D.N.J. June 2,
2021); Majerska v. United States, 2021 WL 4739602, at *1 (D.N.J.
Oct. 12, 2021); Wilson v. United States, 2022 WL 180326, at *1
(D.N.J. Jan. 20, 2022).
Like the other federal detainees, the Plaintiff has sued the United
States of America, the U.S. Marshals Service, the U.S. District
Court for the District of New Jersey, Chief Judge Freda L. Wolfson,
the U.S. Department of Justice, Governor Phil Murphy, the County of
Essex, Director Alfaro Ortiz, Warden Guy Cirillo, and CFG Medical
Services for purported violations pursuant to (1) Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971); (2) the Federal Tort Claims Act, 28 U.S.C. Sections
1346(b), 2671 et seq.; (3) the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. Section 1962(c), (d); (4) the
Religious Freedom Restoration Act, 42 U.S.C. Section 2000bb et
seq.; (5) the Religious Land Use and Institutionalized Persons Act,
42. U.S.C. Section 2000cc et seq.; (6) 42 U.S.C. Sections 1983,
1985, 1986; and (7) the Administrative Procedures Act, 5 U.S.C.
Section 702. The Plaintiff also purportedly seeks mandamus relief
pursuant to 28 U.S.C. Section 1651 and 28 U.S.C. Section 1361.
The Plaintiff brings a laundry list of purported federal claims,
but the gravamen of the Amended Complaint alleges that the
Government violated his speedy trial rights through Chief Judge
Wolfson's COVID-19 pandemic-related standing orders. In those
orders, Chief Judge Wolfson held that the pandemic warranted the
exclusion of various periods of time from the Speedy Trial Act, 18
U.S.C. Section 3161(h)(7)(A). The Plaintiff, without any facts
specific to him, also complains about various pandemic-related
restrictions at the jail such as limited visitation, religious
services, discovery access, legal research time, and medical care,
as well as slow mail, lockdowns, quarantines, and a lack of access
to attorneys.
II. Discussion
Judge Arleo begins with the Plaintiffs constitutional claims
against the immune defendants. She explains that Sovereign immunity
not only protects the United States from liability, it deprives a
court of subject matter jurisdiction over claims against the United
States. For this, she dismisses with prejudice the constitutional
tort claims against the United States, the U.S. Department of
Justice, the U.S. Marshals Service, and the U.S. District Court for
the District of New Jersey.
The Plaintiff has also sued Chief Judge Wolfson for violations of
his speedy trial rights based on her pandemic-related standing
orders. In particular, the Plaintiff takes issue with Chief Judge
Wolfson's decisions excluding time under the Speedy Trial Act in
light of the pandemic.
Judges, however, are generally "immune from a suit for money
damages." When a judge has acted in his or her judicial capacity,
as opposed to an executive or administrative capacity, he or she is
entitled to absolute judicial immunity from damage claims even when
his or her action was erroneous, done maliciously, or exceeded his
or her authority." Accordingly, because the acts in question are
plainly judicial, Chief Judge Wolfson is entitled to absolute
immunity from the Plaintiff's claims for monetary damages, and the
Amended Complaint is dismissed with prejudice as to Chief Judge
Wolfson for her judicial acts in connection with issuing the
standing orders.
The Plaintiff also asks the Court to "declare" that Chief Judge
Wolfson violated a litany of statutes and constitutional
amendments. Declaratory judgment, however, "is inappropriate solely
to adjudicate past conduct." "Nor is declaratory judgment meant
simply to proclaim that one party is liable to another." To the
extent Plaintiff seeks declaratory relief to address the effect of
the standing orders on him personally, i.e., to prospectively
protect his rights, Judge Arleo holds that he has not pleaded facts
to support such a claim. The Plaintiff's claims for declaratory and
injunctive relief are therefore dismissed without prejudice.
As to the remaining named Defendants -- Governor Murphy, Essex
County, Director Ortiz, Warden Cirillo, and CFG Medical Services --
Judge Arleo opines that the Plaintiff fails to plead adequate facts
showing that these Defendants are personally involved in the
alleged wrongs and also fails to delineate which they committed
each alleged violation.
With respect to the individual Defendants, a defendant in a federal
civil rights matter may not be held liable based solely on his role
as a supervisor. Thus, a plaintiff must generally plead facts
showing either the supervisory defendant's "participation in the
alleged wrong, or actual knowledge and acquiescence in his
subordinate's wrongdoing." For these reasons, Judge Arleo holds
that the civil rights claims against the individual Defendants are
dismissed without prejudice for failure to state a claim for
relief.
In the case of a municipal defendant or outside contractor, such as
Defendants Essex County and CFG Medical Services, a plaintiff must
plead facts showing that the municipality or contractor adopted a
policy, practice, or custom which was ultimately responsible for
the alleged violation. Judge Arleo finds that the Plaintiff's
Amended Complaint fails to allege facts showing that the violations
occurred as a result of any policy of custom of Essex County or CFG
Medical Services, and such claims are dismissed without prejudice
for failure to state a claim for relief.
In addition, the Plaintiff's bald assertion of a "conspiracy" among
the Defendants to deny his constitutional rights does not state a
claim for relief. Moreover, the Amended Complaint's allegations
about the lockdowns, restrictions on visitation, restrictions on
religious rights, limitations on attorney access, and limitations
on medical and dental care are also highly generalized, and
Plaintiff does not provide sufficient facts showing that his own
rights were violated by these alleged restrictions. As such, the
Plaintiff's civil rights claims fail on this basis as well.
In addition to the civil rights claims, the Amended Complaint
alleges claims under the Federal Tort Claims Act (FTCA), 28 U.S.C.
Sections 1346(b), the federal Civil Racketeer Influenced and
Corrupt Organizations Act (RICO) statute, 18 U.S.C. Section 1962,
and the Religious Land Use and Institutionalized Persons Act
(RLUIPA), 42. U.S.C. Section 2000cc et seq. These claims are also
inadequately pleaded, Judge Arleo opines.
Because the Plaintiff has not pleaded the elements of a FTCA claim
or facts in support thereof, this claim is dismissed without
prejudice as to the United States and with prejudice as to the
remaining Defendants, who are not proper Defendants under the FTCA.
Likewise, to the extent the Plaintiff asserts civil RICO claims, he
has failed to allege many of the elements of such a claim. The RICO
claim is therefore dismissed without prejudice as to all
Defendants. The Amended Complaint also fails to state a claim under
RLUIPA. The Plaintiff does not provide any facts about his
sincerely held religious beliefs or explain how those beliefs or
related practices have been burdened. As such, the RLUIPA claims
are dismissed without prejudice for failure to state a claim for
relief.
The Plaintiff also asserts jurisdiction under the Administrative
Procedure Act ("APA"), 5 U.S.C. Section 702, which governs judicial
review of agency decisions. Because the Plaintiff has not pleaded
facts to suggest that his federal rights have been violated by an
agency decision, his APA claims are likewise dismissed without
prejudice.
The Plaintiff also seeks mandamus relief pursuant to 28 U.S.C.
Section 1651 and 28 U.S.C. Section 1361. Judge Arleo holds that the
Plaintiff has not shown he has a clear right to the issuance of the
writ with respect to any of his generalized claims, and the request
for mandamus relief is denied without prejudice.
Finally, the Plaintiff seeks to assert claims under the NJCRA.
Having dismissed the federal claims, Judge Arleo declines to
exercise supplemental jurisdiction over the state law claims. Such
a dismissal is appropriate where, as in the case, the only federal
claims have been dismissed, the case has not progressed
substantially, and no particular prejudice will result. Having
dismissed the federal claims in the Amended Complaint at screening,
Judge Arleo also denies the request for counsel and the request for
class action treatment.
III. Conclusion
In sum, Judge Arleo dismisses the Bivens claims with prejudice as
to the United States, the U.S. District Court for the District of
New Jersey, the U.S. Department of Justice, the U.S. Marshals
Service. She dismisses the Bivens claims for damages with prejudice
as to Judge Wolfson and without prejudice as to the claims for
injunctive/declaratory relief. The FTCA claims are dismissed
without prejudice as to the United States and with prejudice as to
all other Defendants. The federal claims in the Amended Complaint
are otherwise dismissed without prejudice. Judge Arleo declines
supplemental jurisdiction over the state law claims, and denies the
requests for counsel and class action treatment. An appropriate
Order follows.
A full-text copy of the Court's June 15, 2022 Memorandum Opinion is
available at https://tinyurl.com/y29h279p from Leagle.com.
UPSTART INC: Klein Law Firm Reminds of July 12 Deadline
-------------------------------------------------------
The Klein Law Firm on June 14 disclosed that a class action
complaint has been filed on behalf of shareholders of Upstart, Inc.
(NASDAQ: UPST) alleging that the Company violated federal
securities laws.
Class Period: March 18, 2021 to May 9, 2022
Lead Plaintiff Deadline: July 12, 2022
No obligation or cost to you.
Learn more about your recoverable losses in UPST:
https://www.kleinstocklaw.com/pslra-1/upstart-inc-loss-submission-form?id=28438&from=4
Upstart, Inc. NEWS - UPST NEWS
CLASS ACTION CASE DETAILS: The filed complaint alleges that
Upstart, Inc. made materially false and/or misleading statements
and/or failed to disclose that: (1) Upstart's AI model could not
adequately account for macroeconomic factors such as interest rates
that impact the market-clearing price for loans; (2) as a result,
Upstart was experiencing a negative impact on its conversion rate;
(3) as a result, the Company was reasonably likely to use its
balance sheet to fund loans; and (4) as a result of the foregoing,
defendants' positive statements about the Company's business,
operations, and prospects were materially false and/or misleading
and/or lacked a reasonable basis.
WHAT THIS MEANS TO YOU AS A SHAREHOLDER: If you have suffered a
loss in Upstart you have until July 12, 2022 to petition the court
for lead plaintiff status. Your ability to share in any recovery
doesn't require that you serve as a lead plaintiff.
NO COST TO YOU: If you purchased Upstart securities during the
relevant period, you may be entitled to compensation without
payment of any out-of-pocket fees.
HOW TO PROTECT YOUR FINANCIAL INTERESTS: For additional information
about the UPST lawsuit, please contact J. Klein, Esq. by telephone
at 212-616-4899 or click this link:
https://www.kleinstocklaw.com/pslra-1/upstart-inc-loss-submission-form?id=28438&from=4.
ABOUT KLEIN LAW FIRM
J. Klein, Esq. represents investors and participates in securities
litigations involving financial fraud throughout the nation. The
Klein Law Firm is a boutique litigation firm with experience in a
wide range of areas including securities law, corporate finance and
commercial litigation. Since 2011, our experienced attorneys have
achieved superior results for our clients with a personalized
focus. Attorney advertising. Prior results do not guarantee similar
outcomes.
CONTACT:
J. Klein, Esq.
Empire State Building
350 Fifth Avenue
59th Floor
New York, NY 10118
jk@kleinstocklaw.com
Telephone: (212) 616-4899
www.kleinstocklaw.com [GN]
US WELL: Fifth Circuit Flips Summary Judgment Order in Easom Suit
-----------------------------------------------------------------
In the case, Scott Easom, Adrian Howard, John Nau,
Plaintiffs-Appellants v. US Well Services, Incorporated,
Defendant-Appellee, Case No. 21-20202 (5th Cir.), the U.S. Court of
Appeals for the Fifth Circuit, reverses the district court's order
denying the Appellants' motions for summary judgment and
reconsideration.
I. Introduction
Appellants Scott Easom, Adrian Howard, and John Nau filed the
interlocutory appeal seeking reversal of the district court's order
denying their motions for summary judgment and reconsideration. In
its order denying Appellants' motions, the district court certified
two questions for interlocutory appeal: (1) Does COVID-19 qualify
as a natural disaster under the Worker Adjustment and Retraining
Notification Act's ("WARN Act" or "the Act") natural-disaster
exception, 29 U.S.C. Section 2102(b)(2)(B)?; (2) Does the WARN
Act's natural-disaster exception, 29 U.S.C. Section 2102(b)(2)(B),
incorporate but-for or proximate causation?
In response, the Fifth Circuit holds that the COVID-19 pandemic is
not a natural disaster under the WARN Act and that the
natural-disaster exception incorporates proximate causation.
II. Background
The Appellants filed a class action complaint against their former
employer, US Well for allegedly violating the WARN Act by
terminating them without advance notice. The WARN Act requires
covered employers to give affected employees 60 days' notice before
a plant closing or mass layoff. The Act provides three exceptions
to the notice requirement -- including the natural-disaster
exception, under which no notice is required.
By way of background, oil producers hire US Well to perform
hydraulic fracturing services known as fracking. When the price of
oil drops below a commercially viable price, oil producers --
including those that hire US Well -- often discontinue work. In
early March 2020, oil prices plummeted to historic lows due to a
price conflict between Saudi Arabia and Russia. This effect was
compounded by a decline in travel and decreased demand for oil and
gas during the COVID-19 pandemic. As a result, several of US Well's
customers curtailed or completely shut down the fracking work US
Well had been performing at multiple well sites in Texas.
When crew members, including the Appellants, returned from the well
sites to their respective headquarters after shutting down
operations, they were immediately informed that they were laid off.
The Appellants' termination letters, dated March 18, 2020, and
effective immediately, stated: "Your termination of employment is
due to unforeseeable business circumstances resulting from a lack
of available customer work caused by the significant drop in oil
prices and the unexpected adverse impact that the Coronavirus has
caused."
The Appellants filed the suit on Aug. 26, 2020, and amended their
complaint on Oct. 14, 2020. The parties cross-moved for summary
judgment. US Well argued that COVID-19 was a natural disaster under
the WARN Act, and consequently, that it was exempt from the WARN
Act's notice requirement pursuant to the natural-disaster
exception. The Appellants countered that COVID-19 was not a natural
disaster and was not a direct cause of their layoffs.
The district court concluded that COVID-19 was a natural disaster
and that the natural-disaster exception uses but-for causation
standards. It denied both motions for summary judgment, however, on
grounds that the record did not show whether COVID-19 was the
but-for cause of the layoffs.
The Appellants moved for reconsideration or, in the alternative,
certification of three questions for interlocutory appeal. The
district court denied the motion for reconsideration but certified
two questions for interlocutory appeal: (1) Does COVID-19 qualify
as a natural disaster under the WARN Act's natural-disaster
exception?; (2) Does the WARN Act's natural-disaster exception
incorporate but-for or proximate causation?
III. Analysis
The WARN Act prohibits an employer from ordering "a plant closing
or mass layoff until the end of a 60-day period after the employer
serves written notice of such an order" to affected employees.
Employers who violate Section 2102 are required to provide
aggrieved employees "back pay for each day of violation." "To prove
a WARN Act claim, a plaintiff must demonstrate that: (1) the
defendant was 'an employer'; (2) the defendant ordered a 'plant
closing' or 'mass layoff'; (3) the defendant failed to give to the
plaintiff 60 days' notice of the closing or layoff; and (4) the
plaintiff is an 'aggrieved' or 'affected' employee."
Section 2107(a) of the WARN Act requires the Secretary of Labor to
"prescribe such regulations as may be necessary to carry out this
chapter." The Department of Labor has explained the following
regarding the natural-disaster exception to the notice requirement
(the "DOL regulation"):
(1) Floods, earthquakes, droughts, storms, tidal waves or
tsunamis and similar effects of nature are natural disasters under
this provision.
(2) To qualify for this exception, an employer must be able
to demonstrate that its plant closing or mass layoff is a direct
result of a natural disaster.
(3) While a disaster may preclude full or any advance notice,
such notice as is practicable, containing as much of the
information required in 20 C.F.R. Section 639.7 as is available in
the circumstances of the disaster still must be given, whether in
advance or after the fact of an employment loss caused by a natural
disaster.
(4) Where a plant closing or mass layoff occurs as an
indirect result of a natural disaster, the exception does not apply
but the unforeseeable business circumstance exception described in
paragraph (b) of this section may be applicable.
Further, the Department of Labor has clarified that "the employer
bears the burden of proof that conditions for the exceptions have
been met."
A. Whether COVID-19 qualifies as a natural disaster under the WARN
Act's natural-disaster exception
The Appellants argue that COVID-19 does not qualify as a natural
disaster under the WARN Act.
The Fifth Circuit agrees. It holds that COVID-19 does not qualify
as a natural disaster under the WARN Act's natural-disaster
exception. It finds that the appearance of "natural disaster" in a
list with "flood, earthquake, or drought" suggests that Congress
intended to limit "natural disaster" to hydrological, geological,
and meteorological events. Congress knew how to, and could have,
included terms like disease, pandemic, or virus in the statutory
language of the WARN Act. That it chose not to justifies the
inference that those terms were deliberately excluded.
Finally, under the Act, employers are required to provide notice to
employees and to local government agencies to allow "some
transition time to adjust to the prospective loss of employment, to
seek and obtain alternative jobs and, if necessary, to enter skill
training or retraining that will allow these workers to
successfully compete in the job market." The Fifth Circuit
therefore declines to expand the definition of "natural disaster"
beyond what is justified by the Act's statutory language, context,
and purpose.
B. Whether the WARN Act's natural-disaster exception incorporates
but-for or proximate causation
The Appellants contend that the phrase "due to" in the
natural-disaster exception requires proximate cause. In the
alternative, they argue that the phrase, "due to" is ambiguous and
that the Fifth Circuit should thus defer to the DOL regulation
requiring an employer to "demonstrate that its plant closing or
mass layoff is a direct result of a natural disaster."
The Fifth Circuit agrees that deference is appropriate. It holds
that flooding, power outages, layoffs, and shutdowns are among the
reasonably foreseeable consequences of hurricanes and other natural
disasters. Thus, imposing a proximate cause requirement on
employers that must lay off employees due to a natural disaster
would not foreclose the natural-disaster exception for all cases
involving an intermediate cause. Accordingly, based on the DOL
regulation's "direct result" requirement and binding precedent
equating direct cause with proximate cause, we hold that the WARN
Act's natural-disaster exception incorporates proximate causation.
IV. Conclusion
For the reasons it set forth, the Fifth Circuit reverses the order
of the district court and remands for further proceedings
consistent with its Opinion.
A full-text copy of the Court's June 15, 2022 Order is available at
https://tinyurl.com/2p8kxssy from Leagle.com.
VAXART INC: Court Junks Jaquith Class Suit
------------------------------------------
Vaxart, Inc. disclosed in its Form 8-K Report for the current
report dated June 3, 2022, filed with the Securities and Exchange
Commission on June 6, 2022, that in June 3, 2022, the court granted
the defendants' motion to dismiss in its entirety, the remainder of
the claims in the operative purported shareholder derivative and
class action complaint filed in October 20, 2020 entitled "Jaquith
v. Vaxart, Inc."
On November 12, 2020, said action was consolidated under the
caption "In re Vaxart, Inc. Stockholder Litigation," and the
complaint filed in the Jaquith action was deemed the operative
pleading.
The operative complaint named certain current and former directors
of the company as defendants, asserting claims against them for
breach of fiduciary duty and unjust enrichment and seeking, among
other things, an award of unspecified damages, certain equitable
relief, and attorneys' fees and costs.
The complaint also asserted claims for unjust enrichment and breach
of fiduciary duty, or alternatively aiding and abetting breach of
fiduciary duty, against its stockholder, Armistice Capital, LLC.
The complaint challenged certain stock options granted to certain
of the company's officers and directors between March 24, 2020 and
June 15, 2020, certain alleged statements and omissions made in the
company's proxy statement, filed with the U.S. Securities and
Exchange Commission on April 24, 2020 and certain amendments to two
warrants held by Armistice, as disclosed in a "Schedule 13D" filed
by Armistice on June 9, 2020.
The complaint purported to bring all but one of the claims
derivatively on behalf of and for the benefit of the company. It
also purported to bring one claim, for breach of fiduciary duty
based on alleged statements and omissions in the proxy statement,
directly on behalf of a class of the company's stockholders. The
complaint named the company as a "nominal defendant," against which
no damages were sought.
In January 4, 2021, all defendants filed motions to dismiss. In a
decision dated November 30, 2021, and corrected on December 1,
2021, the court dismissed the claims relating to the amendments. In
June 3, 2022, the court granted the defendants' motion to dismiss
in its entirety, dismissing the remainder of the claims in the
operative complaint.
In the decision, the Court dismissed the claims relating to the
2020 stock option grants, namely the claim alleging that the
company's directors failed to disclose material information in the
proxy statement prior to the stockholders' vote on the amendment to
the company's 2019 Equity Incentive Plan on June 8, 2020 and the
claim alleging that the stock option recipients were unjustly
enriched through their receipt of options. In the opinion, the
court ordered the derivative case to be dismissed with prejudice.
Vaxart, Inc. is into biological products based in California.
VERRICA PHARMA: Gross Law Firm Reminds of August 5 Deadline
-----------------------------------------------------------
The Gross Law Firm issues the following notice to shareholders of
Verrica Pharmaceuticals, Inc.
Shareholders who purchased shares of VRCA during the class period
listed are encouraged to contact the firm regarding possible lead
plaintiff appointment. Appointment as lead plaintiff is not
required to partake in any recovery.
CONTACT US HERE:
https://securitiesclasslaw.com/securities/verrica-pharmaceuticals-inc-loss-submission-form/?id=28551&from=4
CLASS PERIOD: May 28, 2021 to May 24, 2022
ALLEGATIONS: The complaint alleges that during the class period,
Defendants issued materially false and/or misleading statements
and/or failed to disclose that: (1) there were manufacturing
deficiencies at the facility where Verrica's contract manufacturer
produced a bulk solution for the Company's lead product candidate,
VP-102; (2) these deficiencies were not remediated when Verrica
resubmitted its New Drug Application for VP-12 for molluscum; (3)
the foregoing presented significant risks to Verrica obtaining
regulatory approval of VP-102 for molluscum; and (4) as a result of
the foregoing, defendants' positive statements about the Company's
business, operations, and prospects were materially misleading
and/or lacked a reasonable basis.
DEADLINE: August 5, 2022 Shareholders should not delay in
registering for this class action. Register your information here:
https://securitiesclasslaw.com/securities/verrica-pharmaceuticals-inc-loss-submission-form/?id=28551&from=4
NEXT STEPS FOR SHAREHOLDERS: Once you register as a shareholder who
purchased shares of VRCA during the timeframe listed above, you
will be enrolled in a portfolio monitoring software to provide you
with status updates throughout the lifecycle of the case. The
deadline to seek to be a lead plaintiff is August 5, 2022. There is
no cost or obligation to you to participate in this case.
WHY GROSS LAW FIRM? The Gross Law Firm is nationally recognized
class action law firm, and our mission is to protect the rights of
all investors who have suffered as a result of deceit, fraud, and
illegal business practices. The Gross Law Firm is committed to
ensuring that companies adhere to responsible business practices
and engage in good corporate citizenship. The firm seeks recovery
on behalf of investors who incurred losses when false and/or
misleading statements or the omission of material information by a
company lead to artificial inflation of the company's stock.
Attorney advertising. Prior results do not guarantee similar
outcomes.
CONTACT:
The Gross Law Firm
15 West 38th Street, 12th floor
New York, NY, 10018
Email: dg@securitiesclasslaw.com
Phone: (646) 453-8903 [GN]
VERRICA PHARMA: Robbins LLP Reminds of August 5 Deadline
--------------------------------------------------------
The Class: Shareholder rights law firm Robbins LLP informs
investors that a shareholder filed a class action on behalf of all
persons and entities that purchased Verrica Pharmaceuticals Inc.
(NASDAQ: VRCA) securities between May 28, 2021 and May 24, 2022,
for violations of the Securities Exchange Act of 1934. Verrica is a
dermatology therapeutics company that develops medications for
viral skin diseases requiring medical intervention.
If you would like more information about our Verrica
Pharmaceuticals Inc.'s misconduct, click here.
What is this Case About: Verrica Pharmaceuticals Inc. (VRCA)
Received a Complete Response Letter from the FDA relating to its
New Drug Application for VP-102
Verrica has spent several years working to bring to market VP-102,
the Company's investigational, proprietary, drug-device combination
for the treatment of molluscum contagiosum. However, several
challenges have prevented this from happening. Verrica received its
first Complete Response Letter (CRL) regarding the New Drug
Application (NDA) in September 2021 due to deficiencies at a
facility of Verrica's contract manufacturer. Verrica resubmitted
the NDA for VP-102 in November 2021, claiming "[t]he resubmission
addresses the successful resolution of inspection deficiencies" at
the manufacturing facility.
On May 24, 2022, Verrica received yet another CRL from the FDA
related to its NDA for VP-102, citing "deficiencies identified
during a general inspection of Sterling Pharmaceuticals Services,
LLC (Sterling) the contract manufacturing organization (CMO) that
manufacture's Verrica's bulk solution drug product." On this news,
the Company's stock price fell 63.85%, to close at $2.01 per share
on May 25, 2022.
According to the complaint, defendants failed to disclose that
there were manufacturing deficiencies at the facility where
Verrica's contract manufacturer produced bulk solution for VP-102
and that these deficiencies were not remediated when Verrica
resubmitted its NDA for VP-102, which presented a significant risk
to Verrica obtaining regulatory approval for VP-102.
Next Steps: If you acquired your shares of Verrica Pharmaceuticals
Inc. (VRCA) securities between May 28, 2021 and May 24, 2022, you
have until August 5, 2022, to ask the court to appoint you lead
plaintiff for the class. A lead plaintiff is a representative party
acting on behalf of other class members in directing the
litigation. You do not have to participate in the case to be
eligible for a recovery.
All representation is on a contingency fee basis. Shareholders pay
no fees or expenses. [GN]
VERRICA PHARMA: Rosen Law Reminds of August 5 Deadline
------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, announces
the filing of a class action lawsuit on behalf of purchasers of the
securities of Verrica Pharmaceuticals Inc. (NASDAQ: VRCA) between
May 28, 2021 and May 24, 2022, both dates inclusive (the "Class
Period"). If you wish to serve as lead plaintiff, you must move the
Court no later than August 5, 2022.
SO WHAT: If you purchased Verrica securities during the Class
Period you may be entitled to compensation without payment of any
out of pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the Verrica class action, go to
https://rosenlegal.com/submit-form/?case_id=6828 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than August 5, 2022. A
lead plaintiff is a representative party acting on behalf of other
class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Be wise in selecting counsel. The
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) there were manufacturing
deficiencies at the facility where Verrica's contract manufacturer
produced bulk solution for VP-102 (a drug device combination of
Verrica's topical solution, cantharidin, administered through a
single-use precision applicator for the treatment of molluscum
contagiosum); (2) these deficiencies were not remediated when
Verrica resubmitted its New Drug Application ("NDA") to the U.S.
Food and Drug Administration ("FDA") for VP-102 for molluscum; (3)
the foregoing presented significant risks to Verrica obtaining
regulatory approval of VP-102 for molluscum; and (4) as a result of
the foregoing, defendants' positive statements about Verrica's
business, operations, and prospects were materially misleading
and/or lacked a reasonable basis. When the true details entered the
market, the lawsuit claims that investors suffered damages.
To join the Verrica class action, go to
https://rosenlegal.com/submit-form/?case_id=6828 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome. [GN]
VERRICA PHARMACEUTICALS: Bragar Eagel Reminds of Aug. 5 Deadline
----------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized shareholder
rights law firm, reminds investors that class actions have been
commenced on behalf of stockholders of Verrica Pharmaceuticals,
Inc. (NASDAQ: VRCA), Apyx Medical Corporation (NASDAQ: APYX), and
Waste Management, Inc. (NYSE: WM). Stockholders have until the
deadlines below to petition the court to serve as lead plaintiff.
Additional information about each case can be found at the link
provided.
Verrica Pharmaceuticals, Inc. (NASDAQ: VRCA)
Class Period: May 28, 2021-May 24, 2022
Lead Plaintiff Deadline: August 5, 2022
In December 2020, Verrica submitted its New Drug Application
("NDA") to the U.S. Food and Drug Administration ("FDA") seeking
regulatory approval of VP-102 for the treatment of molluscum.
On September 20, 2021, after the market closed, Verrica announced
receipt of a Complete Response Letter ("CRL") due to deficiencies
at a facility of Verrica's contract manufacturer in connection with
the Company's NDA.
On this news, the Company's stock price fell $1.00, or 8.3%, to
close at $11.03 per share on September 21, 2021, on unusually heavy
trading volume.
In November 2021, Verrica resubmitted the NDA for VP-102, claiming
"[t]he resubmission addresses the successful resolution of
inspection deficiencies" at the manufacturing facility.
Then, on May 24, 2022, after the market closed, Verrica announced
receipt of another Complete Response Letter regarding the VP-102
NDA citing "deficiencies identified during a general reinspection
of Sterling Pharmaceuticals Services, LLC (Sterling), the contract
manufacturing organization (CMO) that manufactures Verrica's bulk
solution drug product."
On this news, the Company's shares fell $3.55, or 63.8%, to close
at $2.01 per share on May 25, 2022, on unusually heavy trading
volume.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to
investors: (1) that there were manufacturing deficiencies at the
facility where Verrica's contract manufacturer produced bulk
solution for VP-102; (2) that these deficiencies were not
remediated when Verrica resubmitted its NDA for VP-102 for
molluscum; (3) that the foregoing presented significant risks to
Verrica obtaining regulatory approval of VP-102 for molluscum; and
(4) that, as a result of the foregoing, Defendants' positive
statements about the Company's business, operations, and prospects
were materially misleading and/or lacked a reasonable basis.
For more information on the Verrica class action go to:
https://bespc.com/cases/VRCA
Apyx Medical Corporation (NASDAQ: APYX)
Class Period: May 12, 2021-March 11, 2022
Lead Plaintiff Deadline: August 5, 2022
On March 14, 2022, Apyx disclosed that the U.S. Food and Drug
Administration ("FDA") would be posting a Medical Device Safety
Communication ("MDSC") related to the Company's Advanced Energy
Products. The Company further disclosed that "[b]ased on our
initial interactions with the FDA, we believe the Agency's MDSC
will pertain to the use of our Advanced Energy products outside of
their FDA-cleared indication for general use in cutting,
coagulation, and ablation of soft tissue during open and
laparoscopic surgical procedures."
On this news, the Company's stock fell $4.02, or 40.6%, to close at
$5.88 per share on March 14, 2022, on unusually heavy trading
volume.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to
investors: (1) that a significant number of Apyx's Advanced Energy
products were used for off-label indications; (2) that such
off-label uses led to an increase in the number of medical device
reports filed by Apyx reporting serious adverse events; (3) that,
as a result, the Company was reasonably likely to incur regulatory
scrutiny; (4) that, as a result of the foregoing, the Company's
financial results would be adversely impacted; and (5) that, as a
result of the foregoing, Defendants' positive statements about the
Company's business, operations, and prospects were materially
misleading and/or lacked a reasonable basis.
For more information on the Apyx class action go to:
https://bespc.com/cases/APYX
Waste Management, Inc. (NYSE: WM)
Class Period: February 13, 2020-June 23, 2020
Lead Plaintiff Deadline: August 8, 2022
On April 14, 2019, Waste Management entered into an agreement and
plan of merger to acquire Advanced Disposal Services, Inc. for $4.9
billion, or $33.15 per share. The merger was conditioned upon,
among other things: (i) the affirmative vote of the holders of a
majority of the outstanding shares of Advanced Disposal Services at
a special meeting of Advanced Disposal Services shareholders to be
held on June 28, 2019 (which was ultimately obtained); and (ii)
obtaining antitrust clearance from regulators, including the U.S.
Department of Justice (DOJ). Knowing that the transaction posed
significant antitrust concerns, Waste Management agree in the
Merger Agreement to divest up to $200 million in revenue-producing
assets of the combined companies over a prior 12-month period (the
Antitrust Revenue Threshold).
Under the merger agreement, Waste Management maintained full
control over the negotiating strategy for obtaining antitrust
consent from the DOJ and was not obliged to divest assets that
exceeded the Antitrust Revenue Threshold. Rather, Waste Management
had a right to terminate the deal for failure to obtain antitrust
approval.
On May 14, 2019, Waste Management issued $4 billion worth of senior
notes in a public offering to finance Waste Management's
acquisition of Advanced Disposal Services. All series received an
investment grade rating. As described in the final prospectus for
the Notes, four of the five series, totaling $3 billion in
principal, were subject to a special mandatory redemption (SMR)
clause in the merger agreement. The SMR clause required Waste
Management to repurchase the Notes for 101% of par in the event the
Merger was note completed by July 14, 2020, the end date under the
Merger Agreement (the End Date).
In the Notes prospectus, Waste Management represented that the
Merger would close by the first quarter of 2020. And to address the
concerns raised by the DOJ, Waste Management and Advanced Disposal
Services engaged in extensive negotiations with several potential
divesture buyers, including GFL Environmental, Inc., for the
divesture of assets well in excess of the Antitrust Revenue
Threshold.
On June 24, 2020, Waste Management announced that it and Advanced
Disposal Services had revised the terms of the merger and that
Waste Management needed to divest substantially more assets than
previously disclosed to receive DOJ approval for the deal. Under
the revised merger terms, Waste Management had agree to purchase
Advanced Disposal Services for $4.6 billion, or $30.30 per share,
thereby reducing Waste Management's acquisition cost by
approximately $300 million to $4.6 billion. In addition, Waste
Management and Advanced Disposal Services had agreed to sell $835
million worth of assets in an attempt to satisfy antitrust
regulators, which assets were responsible for generating
approximately $345 million in 2019 revenue.
Notably, approximately $300 million of the total revenue related to
assets and businesses were being sold to GFL Environmental, with
whom Waste Management had been in extended negotiations for months
prior to the Class Period. Furthermore, Waste Management revealed
that the deal was now not expected to close until the end of the
third quarter of 2020 six months later than had been represented by
defendants at the start of the Class Period and, crucially, after
the End Date which triggered the SMR redemption feature of the
Notes. As a result of this disclosure, the prices of the Notes fell
significantly.
The Waste Management class action lawsuit alleges that, throughout
the Class Period, defendants made false and/or misleading
statements and/or failed to disclose that: (i) the DOJ had
indicated to Waste Management that it would require Waste
Management to divest significantly more assets than the $200
million Antitrust Revenue Threshold; (ii) as a result, the merger
would not be completed by the End Date; and (iii) the Notes would
be subject to mandatory redemption at 101% of par.
For more information on the Waste Management class action go to:
https://bespc.com/cases/WM
About Bragar Eagel & Squire, P.C.:
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes.
Contact Information:
Bragar Eagel & Squire, P.C.
Brandon Walker, Esq.
Melissa Fortunato, Esq.
(212) 355-4648
investigations@bespc.com
www.bespc.com [GN]
VIKING RIVER: Supreme Court Rules on FAA Claims Issue
-----------------------------------------------------
Daniel Wiessner, writing for Reuters, reports that the U.S. Supreme
Court on June 15 said a unique California law allowing workers to
sue their employers in the state's name does not permit them to
circumvent agreements to bring legal disputes in individual
arbitration rather than court.
The court's 8-1 ruling in a case involving Viking River Cruises Inc
is a major victory for business groups who had backed the company,
and is likely to stem a flood of lawsuits filed in recent years
accusing companies of widespread wage law violations.
Justice Samuel Alito wrote for the court that the Federal
Arbitration Act, which requires the enforcement of agreements many
workers sign to arbitrate legal claims, trumps a rule created by
California courts requiring claims brought under the state's
Private Attorneys General Act to remain in court.
Viking River and its lawyers did not immediately respond to
requests for comment.
Scott Nelson of Public Citizen, who represents plaintiff Angie
Moriana, in an email said the ruling was disappointing but that it
left open important questions about when workers have standing to
sue under PAGA.
"California may be able to protect its ability to ensure that those
claims can be litigated by clarifying its standing law," Nelson
said.
PAGA allows workers to sue businesses for violating various state
employment laws and keep one-quarter of the damages if they
prevail, with the rest going to the state.
The number of PAGA lawsuits filed in California on behalf of groups
of workers has skyrocketed since 2014, when the California Supreme
Court held that because PAGA plaintiffs step into the state's
shoes, their claims cannot be forced into individual arbitration.
More than half of private-sector workers have signed agreements to
bring legal disputes in individual arbitration and refrain from
joining class actions, and the Supreme Court in recent years has
rejected various attempts by plaintiffs to circumvent them.
PAGA had served as a key avenue to keep class action claims in
court in California, which is especially crucial when individual
claims would be too small for workers to pursue.
But the Supreme Court on June 15 said PAGA plaintiffs can only
establish standing to sue by first alleging an individual claim;
Moriana, for example, accused Viking River of failing to pay her
final wages in a timely manner after she quit her job.
And since the FAA requires those individual claims to be arbitrated
when workers have signed arbitration agreements, plaintiffs like
Moriana cannot tack on claims involving larger groups of workers,
Alito wrote.
Jonathan Urick, associate chief counsel for the U.S. Chamber of
Commerce Litigation Center, said in a statement that arbitration is
a faster and cheaper route for workers to resolve legal disputes.
"Trial lawyers can no longer use California PAGA claims to force
workers, consumers and businesses into expensive and time-consuming
lawsuits," Urick said.
The Litigation Center is the legal arm of the country's largest
business lobbying group.
Viking River had appealed a decision by a California appeals court
that said Moriana's lawsuit could not be forced into arbitration.
Justice Clarence Thomas in a brief dissent said he believed the FAA
does not apply to cases brought in state courts.
The case is Viking River Cruises Inc v. Moriana, U.S. Supreme
Court, No. 20-1573.
For Viking River: Paul Clement of Kirkland & Ellis
For Moriana: Scott Nelson of Public Citizen [GN]
VIRGINIA DOC: Thorpe, et al., File Bid for Class Status
-------------------------------------------------------
In the class action lawsuit captioned as WILLIAM THORPE, et al., v.
VIRGINIA DEPARTMENT OF CORRECTIONS, et al., Case No.
2:20-cv-00007-JPJ-PMS (W.D.Va.), the Plaintiffs move the Court
under Rule 23 of the Federal Rules of Civil Procedure to certify
the following classes:
-- Constitutional Violation Injunction Class
"All persons who are currently, or will in the future, be
confined at Red Onion or Wallens Ridge at the "Level S" or
"Level 6" security levels subject to any phase of the Step-
Down Program;"
-- Constitutional Violation Damages Class
"All persons who from August 1, 2012 to the present have
been confined at Red Onion or Wallens Ridge at the "Level
S" or "Level 6" security levels subject to any phase of the
Step-Down Program"
-- Injunction Class
"All persons who are currently, or will in the future, be
confined at Red Onion or Wallens Ridge at the "Level S"
or "Level 6" security levels subject to any phase of the
Step-Down Program and who suffer from mental health
disabilities and are qualified as individuals with
disabilities under either The Americans with
Disabilities Act (ADA) or the RA;"
-- Disabilities Damages Class
"All persons who from August 1, 2012 to the present have
been confined at Red Onion or Wallens Ridge at the "Level
S" or "Level 6" security levels subject to any phase of the
Step-Down Program and who suffer from mental health
disabilities and are qualified as individuals with
disabilities under either the ADA or the RA."
The Virginia Department of Corrections (VADOC) is the government
agency responsible for community corrections and operating prisons
and correctional facilities in the Commonwealth of Virginia.
A copy of the Plaintiffs' motion to certify class dated June 20,
2022 is available from PacerMonitor.com at https://bit.ly/3HM9jOz
at no extra charge.[CC]
The Plaintiffs are represented by:
Tara M. Lee, Esq.
Daniel Levin, Esq.
WHITE & CASE LLP
701 Thirteenth Street, NW
Washington, DC 20005
Telephone: (202) 626-3600
Facsimile: (202) 639-9355
E-mail: tara.lee@whitecase.com
daniel.levin@whitecase.com
- and -
Vishal Agraharkar, Esq.
Eden Heilman, Esq.
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF VIRGINIA
701 E. Franklin St., Suite 1412
Richmond, VA 23219
Telephone: (804) 644-8022
E-mail: vagraharkar@acluva.org
eheilman@acluva.org
VIRGINIA: Must Defend Supermax Solitary Confinement Suit
--------------------------------------------------------
Holly Barker, writing for Bloomberg Law, reports that Virginia's
Department of Corrections must defend a would-be class action by
supermax prisoners living in long-term solitary confinement, after
the US Court of Appeals for the Fourth Circuit said on
June 14 that the state invoked qualified immunity prematurely.
Qualified immunity doesn't shield an official alleged to have
actual knowledge that the conduct or conditions were unlawful, the
appeals court said.
The Eighth Amendment only prohibits intentional misconduct. A
plaintiff must plead, at a minimum, that an official showed
"deliberate indifference" to objectively harmful conditions in
order to state claim, the court said. [GN]
VMWARE INC: Approval of Settlement in Putative Action Sought
------------------------------------------------------------
Dell Technologies Inc. disclosed in its Form 10-Q Report for the
quarterly period ended April 29, 2022, filed with the Securities
and Exchange Commission on June 6, 2022, that the parties in two
putative class action complaints faced by its subsidiary VMware,
Inc. are seeking the approval of the court to settle a class action
after they have reached an agreement.
Two purported stockholders brought putative class action complaints
arising out of VMware, Inc.'s acquisition of Pivotal Software, Inc.
on December 30, 2019. The two actions were consolidated in the
Delaware Chancery Court into "In re: Pivotal Software, Inc.
Stockholders Litigation," Civil Action No. 2020-0440-KSJM. The
complaint names as defendants the Dell, VMware, Inc., Michael S.
Dell, and certain officers of Pivotal.
The plaintiffs generally allege that the defendants breached their
fiduciary duties to the former holders of Pivotal Class A Common
Stock in connection with VMware's acquisition of Pivotal by
allegedly causing Pivotal to enter into a transaction that favored
the interests of Pivotal's controlling stockholders at the expense
of such former stockholders. The parties have reached an agreement
to settle the litigation and are seeking the court's approval of
the settlement.
Dell Technologies Inc. is an end-to-end technology provider based
in Texas. VMWare, a cloud computing and virtualization software
firm that allows businesses to run various operating systems on
their devices, first joined Dell Technologies in 2015 as part of
its $67 billion acquisition of EMC Corporation which acquired
VMware for approximately $625 million in December 15, 2003.
WASTE MANAGEMENT: Bronstein Gewirtz Reminds of August 8 Deadline
----------------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC notifies investors that a class
action lawsuit has been filed against Waste Management, Inc.
("Waste Management" or the "Company") (NYSE: WM) and certain of its
officers, on behalf of all persons and entities that purchased, or
otherwise acquired Waste Management redeemable senior notes (the
"Notes") between February 13, 2020 and June 23, 2020, inclusive
(the "Class Period"). The Notes include the following senior
redeemable notes issued by WM in May 2019: (i) 2.95% Senior Notes
due 2024; (ii) 3.20% Senior Notes due 2026; (iii) 3.45% Senior
Notes due 2029; and (iv) 4.00% Senior Notes due 2039. Such
investors are encouraged to join this case by visiting the firm's
site: www.bgandg.com/wm.
This class action seeks to recover damages against Defendants for
alleged violations of the federal securities laws.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to investors
that: (1) the DOJ had indicated to Waste Management that it would
require Waste Management to divest significantly more assets than
the $200 million Antitrust Revenue Threshold; (2) as a result, the
merger would not be completed by the End Date; and (3) the Notes
would be subject to mandatory redemption at 101% of par.
A class action lawsuit has already been filed. If you wish to
review a copy of the Complaint you can visit the firm's site:
www.bgandg.com/wm or you may contact Peretz Bronstein, Esq. or his
Law Clerk and Client Relations Manager, Yael Nathanson of
Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered
a loss in Waste Management you have until August 8, 2022 to request
that the Court appoint you as lead plaintiff. Your ability to share
in any recovery doesn't require that you serve as a lead
plaintiff.
Bronstein, Gewirtz & Grossman, LLC represents investors in
securities fraud class actions and shareholder derivative suits.
The firm has recovered hundreds of millions of dollars for
investors nationwide. Attorney advertising. Prior results do not
guarantee similar outcomes.
Contacts
Bronstein, Gewirtz & Grossman, LLC
Peretz Bronstein or Yael Nathanson
212-697-6484 | info@bgandg.com [GN]
WASTE MANAGEMENT: Rosen Law Firm Reminds of August 8 Deadline
-------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, on June 14
announced the filing of a class action lawsuit on behalf of
purchasers of Waste Management, Inc. (NYSE: WM) redeemable senior
notes (the "Notes") between February 13, 2020 and June 23, 2020,
inclusive (the "Class Period"). The Notes include the following
senior redeemable notes issued by WM in May 2019: (i) 2.95% Senior
Notes due 2024; (ii) 3.20% Senior Notes due 2026; (iii) 3.45%
Senior Notes due 2029; and (iv) 4.00% Senior Notes due 2039. If you
wish to serve as lead plaintiff, you must move the Court no later
than August 8, 2022.
SO WHAT: If you purchased Waste Management Notes during the Class
Period you may be entitled to compensation without payment of any
out of pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the Waste Management class action, go to
https://rosenlegal.com/submit-form/?case_id=6891 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than August 8, 2022. A
lead plaintiff is a representative party acting on behalf of other
class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Be wise in selecting counsel. The
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: The complaint filed in this class action
alleges that throughout the Class Period, Defendants made
materially false and/or misleading statements, as well as failed to
disclose material adverse facts about the Company's business,
operations, and prospects. Specifically, Defendants failed to
disclose to investors that: (1) the DOJ had indicated to Waste
Management that it would require Waste Management to divest
significantly more assets than the $200 million Antitrust Revenue
Threshold; (2) as a result, the merger would not be completed by
the End Date; and (3) the Notes would be subject to mandatory
redemption at 101% of par.
To join the Waste Management class action, go to
https://rosenlegal.com/submit-form/?case_id=6891 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
WILLAMETTE VALLEY: Kelley Must File Class Cert Bid by Sept. 30
--------------------------------------------------------------
In the class action lawsuit captioned as Kelley v. Willamette
Valley Medical Center LLC, Case No. 3:20-cv-02196 (D. Or.), the
Hon. Judge Stacie F. Beckerman entered an order that the Plaintiff
shall file her motion for class certification by September 30,
2022.
-- The Defendant's response is due by November 4, 2022.
-- The Plaintiff's reply is due by November 28, 2022.
-- The Defendant's response to Plaintiff's Motion for
Conditional Certification of Fair Labor Standards Act
(FLSA) Collective Action is due by June 22, 2022
-- The Plaintiff's reply is due by July 6, 2022.
The nature of suit states other labor litigation.
Willamette Valley Medical Center is a for-profit Level III acute
care hospital in McMinnville, Oregon, United States, adjacent to
the McMinnville Airport on Oregon Route 18.[CC]
WVU HOSPITALS UNIVERSITY: 3rd Petition Writ in Class Action Denied
------------------------------------------------------------------
Erin Cleavenger, writing for The Dominion Post, reports that "This
case has followed a tortured path, " West Virginia Supreme Court
Justice Moats wrote in the Court's latest opinion to deny West
Virginia University Hospitals (WVUH) and West Virginia United
Health Services' (WVUHS) third petition for writ of prohibition
regarding a class action civil suit certified by Monongalia County
Circuit Court Judge Phillip D. Gaujot. The opinion was filed April
26.
That tortured path began 10 years ago in 2012 when Christopher
Thomack and Joseph Michael Jenkins, who were treated at J.W. Ruby
Memorial Hospital for separate accidents, believed they (or their
attorneys) were charged fees that were illegal in order to obtain
copies of their medical records.
Thomack alleges he was charged over $514 for his medical records
and Jenkins stated he paid over $655 for his. The hospital claimed
they arrived at these fees by charging.40 cents per page plus an
additional $10 fee for processing.
However, Thomack and Jenkins both claimed to have received their
records on a computer disc containing copies of already-existing
computerized medical records, even though they were charged per
page.
In 2013, both individually, and as the (would be) representative of
a class of similarly situated persons, Thomack and Jenkins filed
separate lawsuits against WVUH and WVUHS.
The cases were consolidated and the pair filed a "consolidated
amendment complaint " asserting a putative class action in January
2014. Monongalia County Circuit Court Judge Phillip D. Gaujot
granted the class certification.
After the circuit court granted class certification, WVUH filed
their first petition seeking a writ of prohibition in the state
Supreme Court in June 2014. The petition was refused in an
unpublished order.
More than two and a half years later, an opinion handed down by the
state Supreme Court found a patient lacked standing to pursue a
claim against a medical provider for excessive charges that were
paid solely by the patient's lawyer.
Based on that decision, WVUH filed a motion in the circuit court to
decertify the class — their motion was denied.
In July 2018, Gaujot entered an order amending the class definition
to include authorized agents or representatives of the patient
through legal representation.
A second petition for writ of prohibition was then filed by WVUH in
October 2018 asking the state Supreme Court "to prohibit [the
circuit court judge ] from conducting any further proceedings until
he has vacated his order denying their motion to decertify the
class."
WVUH argued that the class was improperly certified because the
features of commonality and ascertainability, required by Rule 23
of the West Virginia Rules of Civil Procedure, were absent, and the
class included people who lacked standing.
Addressing only the commonality aspect, a Supreme Court opinion
filed June 2019, "granted the writ of prohibition as moulded, and
vacated the circuit court's order denying WVUH motion to decertify
the class."
After the 2019 opinion, additional discovery was found by the class
representatives, and the circuit court subsequently found evidence
of commonality. Once again, WVUH filed a renewed motion to
decertify the class -- which the circuit court denied, but
redefined the class once again regarding the inclusion of certain
lawyers.
For the third time, WVUH petitioned the West Virginia Supreme Court
for an extraordinary writ of prohibition in relation to the class
action litigation.
According to the Court opinion filed April 26, 2022, WVUH argued
that the circuit court failed to follow the express mandate of the
Supreme Court.
Specifically, the hospitals claim the circuit court failed to
conduct a thorough analysis of the commonality, ascertainability,
and predominance factors required under Rule 23 of civil
procedure.
Additionally, they contend the circuit court failed to give
consideration to ethical issues pertaining to the inclusion of
lawyers.
Justice Moats wrote in the opinion that a writ of prohibition is an
extraordinary remedy and the Court does not grant such relief
lightly.
The Court found no grounds warranting the writ based on the
inclusion of attorney's in the circuit court's definition of class
members. Moats wrote that further tweaks of the definition should
be "accomplished in circuit court " and not by repeated petitions
encouraging the Supreme Court to "micromanage litigation."
The Justice went on to say the Court found "no inadequacy in the
circuit court's findings of commonality and ascertainability " and
further concluded that the circuit court was "under no obligation
to revisit its predominance analysis or the class definition under
the Court's prior mandate [from 2019 ]."
The Court denied the requested writ of prohibition.
On June 10, Justice Armstead, who delivered the Court's 2019
majority opinion on the issue, filed a separate opinion concurring,
in part, and dissenting, in part, to the majority's opinion.
Armstead agreed with the majority opinion's refusal to grant relief
on the ethical issues raised by including attorney's in the class.
However, the Justice stated they believed the circuit court "has
yet to conduct a sufficiently thorough analysis of commonality or
ascertainability under Rule 23 (a) or of predominance for purposes
of Rule 23 (b) pursuant to the West Virginia Rules of Civil
Procedure.
"I respectfully dissent from those portions of the majority opinion
that find no error on these issues, and I would grant the writ of
prohibition, " Armstead wrote. [GN]
ZUMIEZ INC: Settlement in Herrera Suit Wins Initial Nod
-------------------------------------------------------
Zumiez Inc. disclosed in its Form 10-Q Report for the quarterly
period ended April 30, 2022, filed with the Securities and Exchange
Commission on June 6, 2022, that a preliminary approval of a class
action settlement was granted to the case captioned "Alexia
Herrera, on behalf of herself and all other similarly situated, v.
Zumiez Inc."
Said case was filed against the company in the Eastern District
Count of California, Sacramento Division under case number
2:16-cv-01802-SB in August 2016. Alexandra Bernal filed the initial
complaint and then in October 2016 added Alexia Herrera as a named
plaintiff and Alexandra Bernal left the case.
The putative class action lawsuit alleges, among other things,
various violations of California's wage and hour laws, including
alleged violations of failure to pay reporting time. In May 2017
the company moved for judgment on the pleadings that plaintiff's
cause of action for reporting-time pay should fail as a matter of
law as the plaintiff and the other putative class members did not
"report for work" with respect to certain shifts on which the
plaintiff's claims are based.
In August 2017, the court denied the motion. However, in October
2017 the district court certified the order denying the motion for
judgment on the pleadings for immediate interlocutory review by the
United States Court of Appeals for the Ninth Circuit. The company
then filed a petition for permission to appeal the order denying
the motion for judgment on the pleadings with the United States
Court of Appeals for the Ninth Circuit, which petition was then
granted in January 2018.
The opening appellate brief was filed on June 6, 2018 and the
plaintiff's answering appellate brief was filed August 6, 2018.
Defendants' reply brief to the Plaintiff's answering appellate
brief was filed on September 26, 2018 and oral arguments were
completed on February 4, 2019. On May 20, 2019, the United States
Court of Appeals for the Ninth Circuit granted the company's motion
for leave to file a supplemental brief addressing new authority.
In June 10, 2019, the plaintiff's supplemental answering brief was
filed with the United States Court of Appeals for the Ninth
Circuit. The company then filed its supplemental reply brief to
the plaintiff's supplemental answering brief with the United States
Court of Appeals for the Ninth Circuit on June 24, 2019. On March
19, 2020 the United States Court of Appeals for the Ninth Circuit
published its opinion affirming the District Court's denial of
judgment on the pleadings on plaintiff's reporting time pay and
minimum wage claims, reversing the District Court's denial of
judgment on the pleadings on plaintiff's expense reimbursement
claim and refusing to certify the reporting time pay question to
the California Supreme Court.
On April 2, 2020 the company filed a petition for rehearing en banc
to certify the reporting time pay question to the California
Supreme Court and on April 27, 2020 plaintiff filed a response to
its petition for rehearing en banc. The company in turn filed a
reply in support of the company's petition for rehearing en banc on
May 1, 2020. On May 14, 2020, the United States Court of Appeals
for the Ninth Circuit denied the company's petition for rehearing
en banc.
The case was remanded to the Eastern District of California,
Sacramento for further proceedings. The parties held mediation with
a private mediator on June 23, 2021. The parties reached a
resolution in principle for all class claims, which was submitted
for the court's approval. Preliminary approval of the settlement
was granted per the court's order issued on May 6, 2022.
Zumiez Inc., is a specialty retailer of apparel, footwear,
accessories and hard goods based in Washington.
[*] BC Residents, Municipalities Urged to Support Suit v. Oil Cos.
------------------------------------------------------------------
Courtney Dickson, writing for CBC News, reports that environmental
advocates are calling on British Columbians and local governments
to back a plan to take oil companies to court for their role in
climate change.
West Coast Environmental Law launched a campaign called "Sue Big
Oil" on June 15, asking people to sign a declaration encouraging
municipalities to offer up $1 per resident to go toward a class
action lawsuit against fossil fuel companies.
In B.C., the costs of climate change have been dire. Just last
year, the wildfire that destroyed the Village of Lytton cost
insurance companies an estimated $102 million, and major flooding
in the province a few months later caused hundreds of millions of
dollars in damage.
The cost isn't just financial - more than 600 people lost their
lives because of extreme heat caused by climate change in 2021.
Reporting from The Guardian in 2020 suggests 20 fossil fuel
companies are responsible for one-third of carbon emissions
worldwide.
Lawyer Andrew Gage, who works for West Coast Environmental Law,
says suing big oil companies would not only provide communities
with much needed funds to help deal with the effects of climate
change, but it would also encourage them to change their business
practices.
"Companies that are destroying our communities, destroying our
atmosphere, are profitable because they are not bearing their fair
share of the costs," Gage told The Early Edition host Stephen
Quinn.
"That changes the moment a lawsuit is filed because they have to
start notifying their investors, their shareholders of the risks
associated with that litigation."
Several municipalities, such as West Vancouver and Victoria, have
already sent letters to fossil fuel companies asking them to pay
for climate-related costs. Gage says those letters were largely
ignored.
"The next logical step is to actually say, OK, if you're not going
to take responsibility and act in a responsible manner on your own,
we're going to actually be going to court," he said.
Dutch lawsuit successful
An environmental advocacy group in the Netherlands filed a lawsuit
against oil giant Shell for its role in the climate crisis in 2020
-- and won.
Lawyer Laurie van der Burg, who helped build the case against
Shell, says because it was one of the first cases of its kind, she
wasn't sure how it would work out.
"Back then, I didn't feel very confident that we had a chance of
actually winning the case," she said during the official Sue Big
Oil campaign launch on June 15.
But she said even if they lost, it would have drawn attention to
the role of the fossil fuel company in the climate emergency.
She spent a year on background research before sending a letter to
Shell in 2019, asking them to take action and threatening legal
action.
Her team launched a campaign to gather supporters and ended up with
more than 17,000 people signing on as part of the lawsuit.
"There was broad backing for this case," van der Burg said.
They officially filed a lawsuit in 2020, and in May 2021, van der
Burg and her team won their case. Shell was ordered to reduce its
emissions by 45 per cent compared to 2019 by 2030.
According to West Coast Environmental Law, 20 local governments in
the U.S. are currently suing fossil fuel companies for their
contributions to climate change.
Similar lawsuits against tobacco and asbestos, two industries that
knowingly sold products that harmed people and lied about it, have
been successful.
"There is a solid legal basis for to sue global fossil fuel
companies . . . for their proportionate share of the costs of those
climate impacts," Gage said. [GN]
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2022. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.
Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.
The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact
Peter A. Chapman at 215-945-7000.
*** End of Transmission ***