/raid1/www/Hosts/bankrupt/CAR_Public/220721.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, July 21, 2022, Vol. 24, No. 139
Headlines
3M COMPANY: AFFF Products Can Cause Cancer, Hendrickson Suit Says
3M COMPANY: Whitmore Suit Alleges Complications From AFFF Products
ALFA VITAMINS: Underpays Laboratory Workers, Franco Suit Claims
AMERICAN FAMILY: Kowarsky Suit Moved From N.D. Cal. to W.D. Wis.
AON PLC: Dube Sues Over Unauthorized Access to Customers' Info
ARIZONA: State Supreme Court Reverses Dismissal of Roberts Suit
BEIERSDORF INC: Akes Sues Over Lotion's Misleading "FACE" Label
BLACKSTONE GROUP: Bid to Dismiss Amended Bridges Complaint Granted
BLUE CROSS: Insurance Coverage Suit Moved From E.D. to N.D. Texas
BLUETRITON BRANDS: Faces Cox Suit Over Unpaid Overtime Wages
CENTERRA GROUP: Massone's 2nd Amended Suit Dismissed With Prejudice
COMSTAR LLC: Fails to Protect Patients' Personal Info, Davis Says
CONOPCO INC: Bernstein Appeals Ice Cream Mislabeling Suit Dismissal
DISTRICT OF COLUMBIA: Court Grants Bid to Dismiss Tanner-Brown Suit
DRIFTWOOD HOSPITALITY: Luque Suit Alleges Unpaid Overtime Wages
ELEGANT SERVICE: Fails to Pay Overtime Pay, Clay Suit Alleges
ELEPHANT INSURANCE: Holmes Sues Over Compromised Consumers' Info
ESSENTIA HEALTH: Court Denies Appeal From May 9 Order in Kraft Suit
FIRST COMMONWEALTH: Court Affirms Dismissal of D'Happart Suit
GARRISON PROTECTIVE: Griffin Sues Over Untimely Payment of Wages
GRAZIANO'S GOURMET: Scalia Files Suit Over Unpaid Overtime Wages
HERCULES TREE: Fails to Pay Overtime Wages, Ray et al. Claim
HOME HEALTH: Mallett FCRA Suit Removed to E.D. California
IGLOO PRODUCTS: E.D. New York Grants Bid to Toss Chung Class Suit
JUUL LABS: Faces Clarkston Suit Over Deceptive E-Cigarette Ads
JUUL LABS: Galesburg-Augusta Sues Over Deceptive E-Cigarette Ads
JUUL LABS: Kalama School Sues Over Youth E-Cigarette Marketing
JUUL LABS: Triggers Youth E-Cigarette Crisis, Hilldale Suit Says
LANDS' END: Wins Bid for Partial Summary Judgment in Gilbert Suit
LENDINGTREE LLC: Exposes Personal Info After Data Breach, Suit Says
LEVEL 3 COMMUNICATIONS: Faces Johnson FLSA Suit in M.D. Florida
MAGELLAN HRSC: Rios Wage-and-Hour Suit Goes to E.D. California
MISSFRESH LIMITED: Faces Chen Suit Over 22% Decline of ADS Price
MOLECULAR PARTNERS: Freudiger Sues Over 59.06% Drop of ADS Price
N.C.J. RESTAURANT: Roche Sues Over Failure to Pay Overtime Wages
OCCIDENTAL PETROLEUM: Appeals Class Cert. Ruling in Deselms Suit
OSI INDUSTRIES: Mendoza Labor Suit Removed to C.D. California
SALLIE MAE: E.D. New York Grants in Part Homaidan's Bid for TRO
SOCLEAN INC: Benzon Sues Over Mislabeled CPAP Sanitizing Machines
SOUTHERN MILLING: Crawford Sues Over Unpaid OT for Production Staff
VERIFIED NUTRITION: Has Made Unsolicited Calls, Amargos Alleges
WATCH GUARD: Fails to Properly Pay Security Guards, Joseph Claims
WHOLE FOODS: Loses Bid to Dismiss Warren's First Amended Complaint
*********
3M COMPANY: AFFF Products Can Cause Cancer, Hendrickson Suit Says
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STEVEN HENDRICKSON, individually and on behalf of all others
similarly situated, Plaintiff v. 3M COMPANY (f/k/a Minnesota Mining
and Manufacturing Company); ACG CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Defendants, Case No. 2:22-cv-02236-RMG
(D.S.C., July 12, 2022) is a class action against the Defendants
for negligence, battery, inadequate warning, design defect, strict
liability, fraudulent concealment, breach of express and implied
warranties, and wantonness.
The case arises from severe personal injuries sustained by the
Plaintiff as a result of his exposure to the Defendants' aqueous
film forming foam (AFFF) products containing synthetic, toxic per-
and polyfluoroalkyl substances collectively known as PFAS. The
Defendants failed to use reasonable and appropriate care in the
design, manufacture, labeling, warning, instruction, training,
selling, marketing, and distribution of their PFAS-containing AFFF
products and also failed to warn public entities and civilian
firefighters, including the Plaintiff, who they knew would
foreseeably come into contact with their AFFF products that use of
and/or exposure to the products would pose a danger to human
health. Due to inadequate warning, the Plaintiff was exposed to
toxic chemicals and was diagnosed with bladder cancer, says the
suit.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and –
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
3M COMPANY: Whitmore Suit Alleges Complications From AFFF Products
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RICHARD WHITMORE, individually and on behalf of all others
similarly situated, Plaintiff v. 3M COMPANY (f/k/a Minnesota Mining
and Manufacturing Company); ACG CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Defendants, Case No. 2:22-cv-02235-RMG
(D.S.C., July 12, 2022) is a class action against the Defendants
for negligence, battery, inadequate warning, design defect, strict
liability, fraudulent concealment, breach of express and implied
warranties, and wantonness.
The case arises from severe personal injuries sustained by the
Plaintiff as a result of his exposure to the Defendants' aqueous
film forming foam (AFFF) products containing synthetic, toxic per-
and polyfluoroalkyl substances collectively known as PFAS. The
Defendants failed to use reasonable and appropriate care in the
design, manufacture, labeling, warning, instruction, training,
selling, marketing, and distribution of their PFAS-containing AFFF
products and also failed to warn public entities and civilian
firefighters, including the Plaintiff, who they knew would
foreseeably come into contact with their AFFF products that use of
and/or exposure to the products would pose a danger to human
health. Due to inadequate warning, the Plaintiff was exposed to
toxic chemicals and was diagnosed with prostate cancer, says the
suit.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and –
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
ALFA VITAMINS: Underpays Laboratory Workers, Franco Suit Claims
---------------------------------------------------------------
GUSTAVO A. FRANCO, on behalf of herself and all others similarly
situated, Plaintiff v. ALFA VITAMINS LABORATORIES INC., ISAURA
VALDES, and ALEJANDRO VALDES, individually, Defendants, Case No.
1:22-cv-22137 (S.D. Fla., July 12, 2022) is a class action against
the Defendants for failure to compensate the Plaintiff and
similarly situated laboratory workers overtime pay for all hours
worked in excess of 40 hours in a workweek in violation of the Fair
Labor Standards Act.
Mr. Franco worked for the Defendants as a lead laboratory worker in
Miami, Florida from November 01, 2018 until May 27, 2022.
Alfa Vitamins Laboratories Inc. is a manufacturer of nutrition
supplements, vitamins, beverages, and skin care products, with its
principal place of business in Miami, Florida. [BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
AMERICAN FAMILY: Kowarsky Suit Moved From N.D. Cal. to W.D. Wis.
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The case styled NATHAN KOWARSKY, individually and on behalf of all
others similarly situated v. AMERICAN FAMILY LIFE INSURANCE
COMPANY, Case No. 3:22-cv-00939, was transferred from the U.S.
District Court for the Northern District of California to the U.S.
District Court for the Western District of Wisconsin on July 11,
2022.
The Clerk of Court for the Western District of Wisconsin assigned
Case No. 3:22-cv-00377-wmc to the proceeding.
The case arises from the Defendant's alleged negligence, invasion
of privacy, breach of confidence, breach of implied contract,
breach of the implied covenant of good faith and fair dealing,
unfair business practices, and unjust enrichment by failing to take
and implement adequate and reasonable measures to protect its
customers' personal identifiable information from unauthorized
access.
American Family Life Insurance Company is an insurance firm based
in Madison, Wisconsin. [BN]
The Plaintiff is represented by:
Scott Edward Cole, Esq.
Laura Grace Van Note, Esq.
Cody Alexander Bolce, Esq.
COLE & VAN NOTE
555 12th Street, Suite 1725
Oakland, CA 94607
Telephone: (510) 891-9800
Facsimile: (510) 891-7030
Email: sec@colevannote.com
lvn@colevannote.com
cab@colevannote.com
AON PLC: Dube Sues Over Unauthorized Access to Customers' Info
--------------------------------------------------------------
DEANNA DUBE, on behalf of herself and all others similarly
situated, Plaintiff v. AON PLC, Defendant, Case No. 1:22-cv-03587
(N.D. Ill., July 12, 2022) is a class action against the Defendant
for negligence, breach of implied contract, unjust enrichment, and
invasion of privacy.
The case arises from the Defendant's alleged negligence and
omissions which led to the unauthorized access of customers' highly
sensitive personally identifiable information (PII) on its system.
Specifically, the Defendant failed to: (1) maintain adequate cyber
security systems, (2) delete unneeded data with sensitive personal
information, and (3) train its employees on reasonable security
measures, leaving the information an unguarded target for theft and
misuse. Moreover, the Defendant failed to timely notify consumers
regarding the data breach. As a result of the Defendant's failure
to prevent the data breach, the Plaintiff and the proposed Class
have suffered and will continue to suffer damages, including
monetary losses, lost time, anxiety, and emotional distress, says
the suit.
Aon PLC is a financial services firm, with its principal place of
business located at 200 E. Randolph St., Chicago, Illinois. [BN]
The Plaintiff is represented by:
Joseph M. Lyon, Esq.
THE LYON FIRM
2754 Erie Avenue
Cincinnati, OH 45208
Telephone: (513) 381-2333
Facsimile: (513) 721-1178
E-mail: jlyon@thelyonfirm.com
- and –
Terence R. Coates, Esq.
MARKOVITS, STOCK & DEMARCO, LLC
119 E. Court Street, Suite 530
Cincinnati, OH 45202
Telephone: (513) 651-3700
Facsimile: (513) 665-0219
E-mail: tcoates@msdlegal.com
ARIZONA: State Supreme Court Reverses Dismissal of Roberts Suit
---------------------------------------------------------------
In the case, CLINTON ROBERTS, ET AL., Plaintiffs/Appellants v.
STATE OF ARIZONA, Defendant/Appellee, Case No. CV-21-0077-PR
(Ariz.), the Supreme Court of Arizona issued an Opinion:
a. vacating the court of appeals' opinion that the Officers'
claims were not preempted by the FLSA, that the
Portal-to-Portal Act, 29 U.S.C. Sections 251-262 was
incorporated in Arizona through A.R.S. Section 23-392 and
by agency regulations, and that the pre-shift screenings
were compensable activities under the Portal Act;
b. reversing the trial court's dismissal of the action.
I. Background
The case presents the question of whether the State of Arizona has
incorporated the Portal Act, into A.R.S. Section 23-392 to govern
Arizona corrections officers' claims for overtime compensation for
time spent in mandatory pre-shift security screenings.
The Plaintiffs are corrections officers ("the Officers") who
brought a class action against the State for compensation that was
allegedly denied by the Arizona Department of Corrections,
Rehabilitation & Reentry for time spent in mandatory and "extensive
security screening prior to undertaking their assigned duties." The
complaint alleges the following facts: The Officers must wait in
line at checkpoints for screenings before gaining access to prison
facilities. During the screenings, the Officers must empty all
personal possessions for a search and pass through a scanner and
turnstile. The Officers must then wait for transportation to their
assigned work unit, where the same screening process is repeated.
After completing this second pre-shift screening, the Officers work
a full eight-hour shift without breaks. The Officers allege these
screenings add approximately thirty minutes of unpaid, mandatory
time to their shifts.
In the superior court, the Officers alleged that Section 23-392
requires the state to pay overtime compensation for the mandatory
pre-shift security screenings and sought treble damages under
A.R.S. Section 23-355. The State moved to dismiss the complaint
pursuant to Arizona Rule of Civil Procedure 12(b)(6), arguing the
Fair Labor Standards Act ("FLSA"), 29 U.S.C. Sections 201-219,
preempts the Officers' state law claim. Alternatively, the State
argued that Arizona law incorporates the Portal-to-Portal Act, 29
U.S.C. Sections 251-262, an amendment to the FLSA, which renders
the Officers' time spent in security screenings not compensable.
The Officers denied that the FLSA preempts state law. They also
argued that the Portal Act has not been incorporated into Arizona
law either by statute or regulation, that the claims are
compensable under state law because of Arizona's broad
interpretation of "work," and that they are entitled to overtime
compensation even if the Portal Act applies.
The trial court granted the State's motion to dismiss. The court
concluded that federal law did not preempt the Officers' claims,
but that Arizona had adopted the Portal Act by implication,
rendering the pre-shift security screening not compensable.
The court of appeals reversed and held that the Officers' claims
were not preempted by the FLSA, Roberts v. State, 250 Ariz. 590,
595 ¶ 17 (App. 2021), that the Portal Act was incorporated in
Arizona through Section 23-392 and by agency regulations, and that
the pre-shift screenings were compensable activities under the
Portal Act.
The Supreme Court granted review on whether, under federal law as
incorporated in Arizona, corrections officers must be compensated
for time spent in pre-shift security screenings. Because this issue
assumed that Arizona law incorporated federal law, following oral
argument, it invited further supplemental briefing on the following
issues: (1) Whether, and to what extent, has the Portal Act been
incorporated into Section 23-392(A); (2) What does the language in
Section 23-392(A)(1) ("if by the person's job classification
overtime compensation is mandated by federal law") refer to; and
(3) Whether the Arizona Administrative Code regulations are
binding, and, if so, whether the legislature properly delegated to
the Director of the Arizona Department of Administration ("AZDOA")
the authority to incorporate federal law and the Code of Federal
Regulations beyond what Section 23-392(A) does. These are important
questions of statewide concern.
The Supreme Court has jurisdiction under article 6, section 5(3) of
the Arizona Constitution. In the context of a Rule 12(b)(6)
dismissal, the case presents pure questions of law, which it
reviews de novo.
Although the State has abandoned its argument below that the FLSA
preempts state law regarding the definition of work and eligibility
for overtime, it maintains (as the court of appeals held) that
Section 23-392(A) and state agency regulations incorporate the
Portal Act, as well as the federal regulations adopted to
effectuate the Portal Act. As the case presents complex issues of
the interaction between state and federal law and the scope of
administrative agency authority, the Supreme Court begins with an
overview of the pertinent state and federal law.
II. Discussion
A.
In 1984, the Arizona Court of Appeals decided Prendergast v. City
of Tempe, 143 Ariz. 14, 20-21 (App. 1984), holding that meal
periods for certain officers constituted compensable work. The
court observed that Section 23-392(A) did not define "work." In
1985, the Supreme Court ruled that the minimum wage and overtime
provisions of the FLSA, including the Portal Act, are applicable to
state and local government employers. However, the FLSA expressly
allows states to enact their own laws providing greater protections
to workers than the FLSA requires. Arizona adopted Section 23-392
to govern overtime compensation for certain law enforcement
officers in 1975 with no reference to federal law.
In 2012, the legislature enacted A.R.S. Section 41-743, which
authorizes AZDOA's Director, among other things, to "adopt rules
and procedures relating to personnel and personnel administration,"
encompassing ten specified areas, Section 41-743(B)(3)(a)-(j). That
same year, AZDOA adopted Arizona Administrative Code
R2-5A-404(A)(1), which incorporated by reference FLSA regulations
29 C.F.R. Sections 553 and 778. Part 553 covers various topics,
such as the treatment of volunteers, the accrual and use of
compensatory time off, and recordkeeping requirements. Part 778
covers the calculation of pay rates and FLSA overtime rates. AZDOA
did not adopt federal regulations specifically implementing the
Portal Act.
The court of appeals in the state, having decided that state law
incorporates the Portal Act, applied Aguilar v. Mgmt. & Training
Corp., 948 F.3d 1270, 1289 (10th Cir. 2020) to the facts of the
case and concluded that pre-shift security screenings are
compensable. The Supreme Court concludes that Arizona law does not
incorporate the Portal Act and that whether the pre-shift security
screenings at issue here are compensable should be decided as a
matter of state law. It therefore need not resolve the correct
outcome under federal law.
B.
The parties agree that the meaning of the statutory language -- "if
by the person's job classification overtime compensation is
mandated by federal law" -- is largely dispositive of the issues
presented. The State argues that those thirteen words implicitly
incorporate into Arizona law (or, alternatively, authorize AZDOA to
incorporate into Arizona law through regulation) not only the
entirety of the FLSA, including the Portal Act, but also federal
implementing regulations, federal agency interpretative bulletins,
and federal court jurisprudence construing federal law and
regulations. That is a great deal of freight to load upon such a
tiny statutory vessel.
The Supreme Court is referred to no subsequent authority taking a
more expansive view of Section 23-392(A) until AZDOA adopted its
regulations at issue here in 2012, 26 years after the statute was
modified by adding a reference to federal law. Nor does the overall
statutory context suggest a different result. The limited reference
to "if by the person's job classification overtime compensation is
mandated by federal law" in Section 23-392(A) is the only such
reference to a FLSA provision in the statute's entirety. Repeated
references to federal law might support the State's incorporation
argument, but a single reference for a specific, limited purpose
strongly suggests the opposite. The legislature knows how to
provide authority to broadly incorporate federal law into state law
when it wishes, and it did not do so in the present case.
As it concludes that the statute at issue does not incorporate the
entirety of the FLSA, or more specifically the Portal Act, the
Supreme Court must determine whether the pertinent AZDOA rules, as
they relate to overtime compensation for law enforcement officers,
are consistent with its state constitution's separation of powers.
It concludes they are not. At the outset, then, it sets forth its
applicable decisional framework.
The Supreme Court concludes that the legislature did not
incorporate the Portal Act into Section 23-392 nor expressly
delegate authority to AZDOA to do so; and it probably could not
have delegated its power given that such a major public policy
decision is inherently legislative in nature, and the legislative
power is inalienable. The legislature must first make the policy
choice, then it may delegate to AZDOA the power to implement it.
AZDOA possesses only such powers as the legislature delegates to
it, and the legislature has not expressly granted it authority to
incorporate the Portal Act for purposes of determining the
definition of work to trigger overtime compensation requirements
for law enforcement officers; therefore, AZDOA's regulations are
not binding as to whether the Officers' mandatory pre-shift
screenings are work for which overtime compensation is required.
The Supreme Court does not in the case decide, as the question is
not yet before it, whether the Prendergast definition of work
remains operative, whether subsequent developments may have altered
it, or whether any Arizona statutory provisions provide guidance on
the meaning of work. The trial court should consider these issues
on remand. All the Supreme Court decides is that the definition of
work is a matter of state law, that Section 23-392 does not
incorporate the Portal Act for law enforcement officers, and that
AZDOA is not authorized to do so.
C.
The Officers request attorney fees under A.R.S. Section
12-341.01(A). In the Supreme Court's discretion, reasonable
attorney fees incurred in the Court are granted upon compliance
with Arizona Rule of Civil Appellate Procedure 21.
III. Conclusion
The Supreme Court holds that for purposes of defining "work" to
determine overtime eligibility for law enforcement officers under
Section 23-392, the state has not incorporated the Portal-to-Portal
Act into Section 23-392, and state agency regulations purporting to
do so are not legally binding. Therefore, contrary to the decisions
of the courts below, whether the corrections officers are entitled
to overtime should be decided as a matter of state law.
The Supreme Court vacates the court of appeals' opinion and
reverses the trial court's dismissal of the action. It remands the
case to the trial court for further proceedings.
A full-text copy of the Court's July 8, 2022 Opinion is available
at https://tinyurl.com/2p89hr95 from Leagle.com.
Michael Napier (argued) -- mn@michaelnapier.com -- Cassidy L. Bacon
-- clbacon@napierlawfirm.com -- Juliana Tallone, Napier, Baillie,
Wilson Bacon & Tallone P.C., Phoenix, Attorneys for Clinton Roberts
and Donna Christopher-Hall.
Mark Brnovich, Arizona Attorney General, Joseph A. Kanefield, Chief
Deputy and Chief of Staff, Wilson C. Freeman (argued), Senior
Litigation Counsel, Drew C. Ensign, Section Chief, Civil Appeals,
Kirstin Story, and Daniel P. Schaack, Assistant Attorneys General,
Phoenix, Attorneys for State of Arizona.
Aditya Dynar -- adynar@pacificlegal.org -- Pacific Legal
Foundation, in Arlington, Virginia, Attorney for Amicus Curiae
Pacific Legal Foundation.
BEIERSDORF INC: Akes Sues Over Lotion's Misleading "FACE" Label
---------------------------------------------------------------
TONYA AKES, on behalf of herself and all others similarly situated,
Plaintiff v. BEIERSDORF, INC., Defendant, Case No.
3:22-cv-00869-AVC (D. Conn., July 11, 2022) is a class action
against the Defendant for quasi-contract/unjust enrichment and
violations of State Consumer Protection Acts, California's Unfair
Competition Law, and California's False Advertising Law.
The case arises from the Defendant's alleged false, deceptive, and
misleading advertising, labeling, and marketing of the Coppertone
Sport Mineral FACE lotion. The product is prominently labelled
"FACE," which led reasonable consumers to believe that the lotion
is specifically designed for the face. In reality, the Coppertone
Sport Mineral FACE lotion is exactly the same as the regular
Coppertone Sport Mineral lotion. The Defendant is putting the same
sunscreen into two different bottles with different labels. As a
result, consumers are being deceived and overcharged. The Plaintiff
would not have purchased the product if she had known that the
product was, in fact, identical to regular Coppertone Sport Mineral
lotion, which costs half as much, says the suit.
Beiersdorf, Inc. is a skin care company, with its principal place
of business in Wilton, Connecticut. [BN]
The Plaintiff is represented by:
Craig A. Raabe, Esq.
Seth R. Klein, Esq.
IZARD, KINDALL & RAABE LLP
29 South Main Street, Suite 305
West Hartford, CT 06107
Telephone: (860) 493-6292
Facsimile: (860) 493-6290
E-mail: craabe@ikrlaw.com
- and –
Simon Franzini, Esq.
Jonas B. Jacobson, Esq.
DOVEL & LUNER, LLP
201 Santa Monica Blvd., Suite 600
Santa Monica, CA 90401
Telephone: (310) 656-7066
Facsimile: (310) 656-7069
E-mail: simon@dovel.com
jonas@dovel.com
BLACKSTONE GROUP: Bid to Dismiss Amended Bridges Complaint Granted
------------------------------------------------------------------
In the case, CAROLYN BRIDGES, and RAYMOND CUNNINGHAM, individually
and on behalf of all others similarly situated, Plaintiffs v.
BLACKSTONE GROUP, INC., Defendant, Case No. 21-cv-1091-DWD (S.D.
Ill.), Judge David W. Dugan of the U.S. District Court for the
Southern District of Illinois grants the Defendant's motion to
dismiss the Plaintiffs' Amended Complaint.
I. Introduction
Plaintiffs Bridges and Cunningham bring the putative class action
against Defendant Blackstone alleging violations of the Illinois
Genetic Information Privacy Act, 410 Ill. Comp. Stat. Ann. 513/1,
et seq. ("GIPA") in connection with Blackstone's acquisition of
non-party Ancestry.com DNA LLC. The Plaintiffs filed an Amended
Complaint seeking injunctive relief, statutory damages, and
attorneys' fees. Now before the Court is the Defendant's motion to
dismiss pursuant to Fed. R. Civ. P. 12(b)(6). The Plaintiffs filed
a memorandum in opposition, to which Blackstone replied.
II. Background
The Plaintiffs are residents of Illinois. They purchased at-home
DNA test kits from non-party, Ancestry.com LLC and provided their
genetic material to Ancestry for sequencing. In December 2020,
Defendant Blackstone acquired Ancestr. In connection with the
acquisition, Blackstone allegedly compelled the disclosure of
Ancestry's "trove of DNA data", which included the Plaintiffs'
genetic testing data.
The Plaintiffs "never consented, agreed or gave permission-written
or otherwise-to Ancestry to transfer their genetic testing and
information derived from genetic testing to a third-party" or for
Blackstone to take possession of their data. They would not have
provided their genetic information to Ancestry if they had known
that Blackstone would compel its disclosure and take possession of
their information without their consent.
III. Discussion
The Plaintiffs assert that Blackstone compelled the disclosure of
their genetic testing data from non-party Ancestry without their
written consent or knowledge and in violation of GIPA. GIPA was
designed to prevent employers and insurers from using genetic
testing data as a means of discrimination for employment or
underwriting purposes. As such, GIPA declared that "genetic testing
and information derived from genetic testing" is "confidential and
privileged" and placed restrictions on the ability to release that
information. GIPA also provides a private right of action for "any
person aggrieved by a violation of this Act against an offending
party."
Blackstone denies that it compelled the disclosure of the
Plaintiffs' genetic testing information from Ancestry, and further
denies that it ever obtained or received information protected by
GIPA. It also maintains that GIPA does not provide a right of
action against it, a purported recipient of genetic information,
but instead argues that GIPA imposes liability on the wrongful
discloser of that information. To that end, Blackstone insists that
that even if it did somehow compel Ancestry to disclose
information, the mere act of compelling under these circumstances
is not a violation of GIPA.
The Plaintiff disagrees with this reading and argues that that
limiting recourse generally to only the person disclosing the
information would render the words "or be compelled to disclose"
meaningless.
The parties disagree on the interpretation of the following
language: No person may disclose or be compelled to disclose the
identity of any person upon whom a genetic test is performed or the
results of a genetic test in a manner that permits identification
of the subject of this test.
A plain reading of this sentence suggests that the two phrases are
complimentary but distinct. The first clause, "no person may
disclose," prohibits a person possessing genetic testing data from
improperly disclosing that data to another. The second clause, "no
person may ... be compelled to disclose," protects a person
possessing genetic testing data from being compelled to disclose
that data to another. While similar, the addition of the second
clause ensures that individuals who undergo genetic testing are
protected in two distinct ways: (1) by prohibiting third parties
who possess their genetic data from improperly disclosing it, and
(2) by shielding them from persons who seek to compel their genetic
data for improper purposes. Accordingly, Section 30, in addition to
the broad definition of "person", operates to ensure that any
person in possession of genetic data (including both individuals
undergoing genetic testing like Plaintiffs, and persons who
obtained genetic data from those individuals, like Ancestry) are
protected against others who mishandle genetic data by either
improperly disclosing it or improperly compelling it.
The problem in the case, however, is that as alleged, Blackstone
does not fit neatly into either category. The Plaintiffs present a
quasi-subrogation claim whereby they seek redress for Blackstone's
compelling of Ancestry's alleged improper disclosure of data.
Notably, they are not bringing a claim against Ancestry for its
alleged part in improperly disclosing their data to Blackstone.
However, their personal data is the subject of the wrongful
disclosure. As such, the Plaintiffs seemingly qualify as "aggrieved
persons" under GIPA's enforcement provision which permits "any
person aggrieved by a violation of this Act to have a right of
action against an offending party."
While the Act does not define "person aggrieved", the Plaintiffs
urge the Court to adopt a similar broad reading of "aggrieved
person" as used by the Illinois Supreme Court in interpreting a
similar Illinois privacy statute, the Illinois Biometric Privacy
Act ("BIPA"), citing Rosenbach v. Six Flags Ent. Corp., 2019 IL
123186, at ¶ 40 (holding that "an individual need not allege some
actual injury or adverse effect, beyond violation of his or her
rights under BIPA in order to qualify as an `aggrieved' person"
under the Act).
Judge Dugan finds it appropriate to apply the definition of
"aggrieved person" used by the Rosenbach court to GIPA. Applying a
similarly broad reading of "aggrieved person" suggests that the
Plaintiffs, as the persons whose genetic data is the subject of the
alleged wrongdoing, may seek redress against any "offending party"
who compels the disclosure of their personal data, whether that
"offending party" compels the data directly from Plaintiffs or from
a non-party in possession of their data. As such, under these
facts, Blackstone's position as the "compeller" of a non-party in
possession of Plaintiffs' genetic data, does not summarily exclude
it from liability under GIPA.
Notwithstanding the foregoing, the factual allegations in the
Complaint fall short of alleging a violation of GIPA, and the
Plaintiffs have failed to state a viable claim of relief against
Blackstone for at least two reasons. First, the Plaintiffs have
failed to allege that Blackstone's compelled Ancestry. Second, they
have failed to allege that Blackstone otherwise received data that
is protected by GIPA. Therefore, even construing the allegations
and statements broadly, the Complaint does not allege or infer that
Blackstone compelled Ancestry to take any action.
Moreover, even if Blackstone's actions were somehow compulsory, the
Complaint also fails to allege that the purported information
Blackstone received from Ancestry is information protected by GIPA.
GIPA protects the disclosure or compelled disclosure of the
"identity of any person upon whom a genetic test is performed or
the result of a genetic test in a manner that permits
identification of the subject of this test." The Plaintiffs allege
that Blackstone obtained their genetic information, and that
information was paired with their "first and last name, email
address home address, and other information." However, again, the
actual documents they rely on contradict these conclusory
statements. Thus, the Complaint fails to reasonably infer that the
information Blackstone received from Ancestry, if any, identified
the Plaintiffs as individuals who had genetic tests performed or
contained the results of the Plaintiffs' genetic data such that
they were identified as the subject of that data.
IV. Conclusion
For these reasons, Judge Dugan concludes that the Plaintiffs'
Amended Complaint fails to state a claim upon which relief may be
granted. Because the complaint fails to state a claim, he declines
at this time to reach the Defendant's argument concerning whether
GIPA applies extraterritorially. He grants the Defendant's Motion
to Dismiss. Judge Dugan dismisses the Plaintiffs' Amended Complaint
without prejudice for a failure to state a claim. The Plaintiffs
are granted leave to file an amended complaint by Aug. 1, 2022.
A full-text copy of the Court's July 8, 2022 Memorandum & Order is
available at https://tinyurl.com/yfdddxsf from Leagle.com.
BLUE CROSS: Insurance Coverage Suit Moved From E.D. to N.D. Texas
-----------------------------------------------------------------
The case styled M.C.W., individually and on behalf of all others
similarly situated v. BLUE CROSS AND BLUE SHIELD OF TEXAS, INC., a
division of Health Care Service Corporation, Case No.
4:22-cv-00362, was transferred from the U.S. District Court for the
Eastern District of Texas to the U.S. District Court for the
Northern District of Texas on July 12, 2022.
The Clerk of Court for the Northern District of Texas assigned Case
No. 3:22-cv-01506-M to the proceeding.
The case arises from the Defendant's alleged denial of insurance
coverage for services rendered to the Plaintiff's son by relying on
criteria unmentioned in the certificate of coverage and
inconsistent with the terms of the plan.
Blue Cross and Blue Shield of Texas, Inc. is an insurance company,
with its headquarters located at 1001 East Lookout Drive,
Richardson, Texas. [BN]
The Plaintiff is represented by:
Meagan Martin Powers, Esq.
MARTIN POWERS & COUNSEL, PLLC
600 E. John Carpenter Fwy., Suite 234
Irving, TX 75062
Telephone: (214) 612-6471
Facsimile: (214)247-1155
E-mail: meagan@martinpowers.com
- and –
Jordan Lewis, Esq.
JORDAN LEWIS, P.A.
4473 N.E. 11th Avenue
Fort Lauderdale, FL 33334
Telephone: (954) 616-8995
Facsimile: (954) 206-0374
E-mail: jordan@jml-lawfirm.com
- and –
David W. Asp, Esq.
Jennifer L. M. Jacobs, Esq.
Derek C. Waller, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Ave. South, Suite 2200
Minneapolis, MN 55401
Telephone: (612) 339-6900
Facsimile: (612) 339-0981
E-mail: dwasp@locklaw.com
jlmjacobs@locklaw.com
dcwaller@locklaw.com
BLUETRITON BRANDS: Faces Cox Suit Over Unpaid Overtime Wages
------------------------------------------------------------
DETIKO B. COX and other similarly situated individuals, Plaintiff
v. BLUETRITON BRANDS, INC. a/k/a ReadyFresh, Defendant, Case No.
0:22-cv-61301-XXXX (S.D. Fla., July 12, 2022) brings this complaint
as a collective action to recover money damages for the Defendant's
alleged failure to pay overtime wages pursuant to the Fair Labor
Standards Act.
The Plaintiff was employed by the Defendant as a non-exempted,
full-time water delivery driver from approximately December 7, 2020
to April 26, 2022.
The Plaintiff claims that the Defendant paid him by direct deposit.
Regardless of the number of hours he worked, the Defendant paid him
the same amount. The Plaintiff asserts that the Defendant failed to
pay him overtime compensation at the rate of one and one-half times
his regular rate of pay for all hours he worked in excess of 40 per
workweek.
Aside from the unpaid overtime compensation, the Plaintiff also
seeks liquidated damages, reasonable attorney fees, costs, and
expenses, and other relief as the interests of justice may
require.
Bluetriton, Inc. a/k/a ReadyFresh is a distributor of bottled
water, soft beverages, coffee, tea, water dispensers, and related
supplies. [BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Tel: (305) 446-1500
Fax: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
CENTERRA GROUP: Massone's 2nd Amended Suit Dismissed With Prejudice
-------------------------------------------------------------------
In the case, THOMAS J. MASSONE, as President and on behalf of the
United States Security Officers, Plaintiff v. DONALD D. WASHINGTON
and CENTERRA GROUP, LLC, Defendants, Case No. 20-cv-7906 (LJL)
(S.D.N.Y.), Judge Lewis J. Liman of the U.S. District Court for the
Southern District of New York grants the Defendants' motions to
dismiss the second amended complaint with prejudice.
I. Introduction
Plaintiff Massone brings the action as President and on behalf of
the United States Court Security Officers, challenging the
responses of Defendants Donald D. Washington and Centerra to the
COVID-19 pandemic. The Court previously dismissed the first amended
complaint. The Defendants Washington and Centerra each move to
dismiss the second amended complaint pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6).
II. Background
The Plaintiff is the President of the United States Court Security
Officers Union, which represents approximately 2,200 Court Security
Officers ("CSOs") who act as Special Deputy U.S. Marshals. The
Union "is charged with representing the interests of all CSOs as to
the terms and conditions of employment and regarding the health and
welfare of its members," and "vigorously supports safety in the
workplace and is actively involved in ensuring that its members are
provided with a work environment that is protected from unnecessary
dangers and hazards." Washington is the director of the U.S.
Marshals Service, and Centerra is a private contract security
provider for the U.S. Marshals Service and the employer of the
CSOs. Although the CSOs are contracted through Centerra, the
Marshals Service implements the "policies, practices and procedures
employed at the federal court facilities."
The Plaintiff's complaint revolves around the Defendants' response
to the COVID-19 pandemic. The Plaintiff alleges that the Defendants
have failed to properly clean and sterilize the working and common
areas in Federal Courthouses, failed to provide adequate personal
protective equipment ("PPE") to the CSOs, failed to adequately
train CSOs regarding PPE, and engaged in acts of intimidation
intended to chill advocacy for safety measures, and that these
actions "have created a substantial and specific danger to the
public health and safety in that they have created a breeding
ground for and spread of COVID-19." The Plaintiff alleges that as a
result of these policies, individual CSOs "have been, and continue
to be, exposed to COVID-19 and have in fact contracted coronavirus
and died as a result while many others have been quarantined as a
result of said failure."
The Plaintiff alleges in depth that one CSO, Anthony Charles
McGrew, died from a COVID-19-related death in Georgia in 2020. He
alleges that Mr. McGrew's beneficiaries are entitled to various
benefits under the Public Safety Officer Benefits Act. He also
alleges that the Defendants "maintain a pattern, policy, and/or
practice, officially or unofficially, written or unwritten,
designed to restrict, limit or deny the free association and
protective speech of Plaintiffs amongst UNION members." He alleges
that, to this end, the Defendants retaliated against various CSOs
by making "veiled threats of subjecting CSOs to possible
disciplinary action that could necessarily lead to suspension from
employment and possible termination from employment, with the goal
of creating a chilling effect upon the Union to associate and/or
effectuate their First Amendment right to protected speech."
The Plaintiff's earlier complaints only alleged that Union members
have been or will be harmed by the Defendants' actions. Its second
amended complaint alleges that not only Union members, but the
Union itself will be injured by the Defendants' alleged conduct.
Specifically, the Plaintiff alleges the Union "will be irreparably
harmed in the core mission of the Union and its fundamental purpose
to be able to zealously represent all Union members in all matters
regarding workplace health and safety issues, thereby eviscerating
the trust of Union members in the Union if the Defendants are
allowed to openly and notoriously disregard the Union and the Union
members safety."
The Plaintiff filed his first complaint in the instant matter on
Sept. 25, 2020. He filed an amended complaint on Nov. 4, 2020. The
Court issued an Opinion and Order granting the Defendants' motions
to dismiss the first amended complaint Aug. 30, 2021. The Plaintiff
filed a second amended complaint on Oct. 8, 2021. Defendant
Centerra filed a motion to dismiss on Oct. 29, 2021. Defendant
Washington filed a motion to dismiss on the same day. The Plaintiff
filed responses to both motions to dismiss on Dec. 13, 2021. The
Defendants each filed replies in further support of their
respective motions to dismiss on Dec. 13, 2021.
III. Discussion
The Defendants move to dismiss both for lack of standing and for
failure to state a claim. Because Judge Liman finds -- as in the
Court's prior Opinion and Order -- that the Plaintiff does not have
standing to sue, he does not reach the merits of the case, as there
is no justiciable case or controversy present.
Massone represents that he is bringing this lawsuit "as President
of the United States Court Security Officers Union," "on behalf of
the Union" and the CSOs it represents. He does not bring the suit
individually or allege that he personally has a claim against the
Defendants. Because he brings the suit in his capacity as President
of the Union, he must demonstrate that the Union either has
organizational standing to sue in its own right or has
representative standing -- also referred to as associational
standing -- to sue on behalf of its members.
A. Organizational Standing
The Plaintiff argues that the Union itself is injured and therefore
has organizational standing. Its argument, however, is
tautological: The Union is injured because the Union represents its
members on workplace health and safety matters, thus if the
Defendants disregard its members health and safety, its zealous
representation of its members health and safety is compromised, and
its reputation suffers.
As the Court explained in its initial Opinion and Order,
organizational standing is not conferred by the mere possibility
that the Defendants engaged in wrongs that individually and equally
affect Union members. Judge Liman opines that the Plaintiff has not
alleged any new facts supporting an inference that the Union itself
suffered an injury. In its second amended complaint, the Plaintiff
adds only one allegation relevant to organizational standing -- an
assertion that the Union and its members will be "irreparably
harmed" in the Union's "core mission" by Defendants' alleged
misconduct. With the exception of the Plaintiff's allegation that
the Union itself will be "irreparably harmed" without injunctive
relief, the injuries referenced in its amended complaint match
those referenced in its initial complaint -- all are injuries
suffered by CSOs who were allegedly exposed to or contracted
COVID-19, or who were allegedly retaliated against by the
Defendants.
As the Court previously concluded, these injuries are not to the
Union itself and do not support a finding that the Union has
organizational standing. This analysis is not impacted by the
Plaintiff's new allegation that the Union itself suffered an
injury, given the conclusory nature of this allegation; simply
stating the conclusion that the Union has been or will be injured
does not mean the Union was or will be injured in fact, and the
second amended complaint remains devoid of factual allegations as
to injury to the Union itself.
B. Representative Standing
As explained in the Court's initial Opinion and Order, even if an
organization does not have standing in its own right and has not
alleged that it suffered any injury, it can still assert
representative standing on behalf of its members by showing that
"(a) its members would otherwise have standing to sue in their own
right; (b) the interests it seeks to protect are germane to the
organization's purpose; and (c) neither the claim asserted nor the
relief requested requires the participation of individual members
in the lawsuit," citing Bano v. Union Carbide Corp., 361 F.3d 696,
713 (2d Cir. 2004) (quoting Hunt v. Wash. State Apple Advert.
Comm'n, 432 U.S. 333, 343 (1977)).
The Court previously held that the Union was not entitled to
representative standing because it exclusively sought monetary
relief for its members and because it made no argument as to why it
satisfied the third prong of the Hunt test.
The Plaintiff's second amended complaint again seeks money damages
for alleged injuries suffered by CSOs represented by the Union. The
Defendants again argue that the Plaintiff does not have
representative standing, which courts within the Second Circuit
have "consistently declined to find when a plaintiff brings a claim
on behalf of its members for money damages.
Judge Liman opines that the second amended complaint fails to
establish representative standing for precisely the same reasons.
The Plaintiff's allegations of Union members suffering bodily harm
-- including but not limited to contracting COVID-19 as a result of
the Defendants' alleged actions -- "necessarily" require that "each
of those individuals would have to be involved in the proof of his
or her claims." The nature of the Plaintiff's claims and alleged
injuries thus fail the third prong of the Hunt test; consequently,
the Plaintiff cannot establish representative standing. Without
standing, the Court cannot reach the merits of the case.
IV. Conclusion
Judge Liman grants the Defendants' motions to dismiss with
prejudice.
The Clerk of Court is respectfully directed to close Dkt. Nos. 48,
51, and to close the case.
A full-text copy of the Court's July 8, 2022 Opinion & Order is
available at https://tinyurl.com/52w83ekw from Leagle.com.
COMSTAR LLC: Fails to Protect Patients' Personal Info, Davis Says
-----------------------------------------------------------------
GREG DAVIS, on behalf of himself and all others similarly situated,
Plaintiff v. COMSTAR, LLC, Defendant, Case No. 1:22-cv-11119-PBS
(D. Mass., July 12, 2022) is a class action against the Defendant
for negligence, invasion of privacy, and unjust enrichment.
The case arises from the Defendant's alleged negligence and
omissions which led to the unauthorized access of patients' highly
sensitive personally identifiable information (PII) and personal
health information (PHI) on its system. Specifically, the Defendant
failed to: (1) maintain adequate cyber security systems, (2) delete
unneeded data with sensitive personal information, and (3) train
its employees on reasonable security measures, leaving the
information an unguarded target for theft and misuse. Moreover, the
Defendant failed to timely notify consumers regarding the data
breach. As a result of the Defendant's failure to prevent the data
breach, the Plaintiff and the proposed Class have suffered and will
continue to suffer damages, including monetary losses, lost time,
anxiety, and emotional distress, says the suit.
Comstar, LLC is an ambulance billing and collections service
company based in Massachusetts. [BN]
The Plaintiff is represented by:
Michael S. Appel, Esq.
SUGARMAN, ROGERS, BARSHAK & COHEN, P.C.
101 Merrimac Street, 9th Floor
Boston, MA 02114
Telephone: (617) 227-3030
E-mail: appel@sugarmanrogers.com
- and –
Samuel J. Strauss, Esq.
Raina C. Borrelli, Esq.
TURKE & STRAUSS LLP
613 Williamson St., Suite 201
Madison, WI 53703
Telephone: (608) 237-1775
Facsimile: (608) 509-4423
E-mail: sam@turkestrauss.com
raina@turkestrauss.com
CONOPCO INC: Bernstein Appeals Ice Cream Mislabeling Suit Dismissal
-------------------------------------------------------------------
Plaintiff HEATHER BERNSTEIN filed an appeal from a court ruling
dismissing her lawsuit entitled HEATHER BERNSTEIN, individually and
on behalf of all others similarly situated, Plaintiff v. CONOPCO,
INC., Defendant, Civil No. 3:21-cv-10160-KAR, in the United States
District Court for the District of Massachusetts in Springfield.
Plaintiff Bernstein, individually and on behalf of all others
similarly situated, brought the action on January 29, 2021 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).
On July 9, 2021, the Defendant filed a motion to dismiss the case
for failure to state a claim.
As reported in the Class Action Reporter on June 27, 2022,
Magistrate Judge Katherine A. Robertson of the U.S. District Court
for the District of Massachusetts granted the Defendant's motion to
dismiss the Plaintiff's first amended class action complaint. Judge
Robertson states that the Plaintiff's 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. Instead,
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, ruled the court.
"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," Judge Robertson added.
The Plaintiff files this appeal to seek a review of this order.
The appellate case is captioned as Bernstein v. Conopco, Inc., Case
No. 22-1519, in the United States Court of Appeals for the First
Circuit, filed on July 1, 2022.[BN]
Plaintiff-Appellant HEATHER BERNSTEIN, individually and on behalf
of all others similarly situated, is represented by:
John T. Longo, Esq.
996 Smith St
Providence, RI 02908
Telephone: (401) 378-4441
Defendant-Appellee CONOPCO, INC. is represented by:
August T. Horvath, Esq.
FOLEY HOAG LLP
1301 Avenue of the Americas, 25th Flr.
New York, NY 10019
Telephone: (212) 812-0344
- and -
John Andrew Shope, Esq.
FOLEY HOAG LLP
155 Seaport Blvd
Boston, MA 02210-2600
Telephone: (617) 832-1233
DISTRICT OF COLUMBIA: Court Grants Bid to Dismiss Tanner-Brown Suit
-------------------------------------------------------------------
In the case, LEATRICE TANNER-BROWN, et al., Plaintiffs v. DEBRA
HAALAND, Secretary of the Interior, et al., Defendants, Civil
Action No. 21-565 (RC) (D.D.C.), Judge Rudolph Contreras of the
U.S. District Court for the District of Columbia grants the
Defendants' Motion to Dismiss.
I. Introduction
Plaintiffs Leatrice Tanner-Brown and the Harvest Institute Freedman
Federation, LLC ("HIFF") filed the putative class action against
Defendants Debra Haaland, the Secretary of the United States
Department of the Interior, and Bryan Todd Newland, the Assistant
Secretary for Indian Affairs at the Interior Department, in their
official capacities, seeking an accounting relating to alleged
breaches of fiduciary duties concerning land allotted to the minor
children of former slaves of Native American tribes.
In 2014, the same Plaintiffs sought the same relief against the
same Defendants before the Court -- Tanner-Brown v. Jewell, No.
14-cv-1065, (D.D.C. June 25, 2014). The Court dismissed the
Plaintiffs' claims on the ground that both Ms. Tanner-Brown and
HIFF lacked Article III standing, and the D.C. Circuit affirmed.
The Plaintiffs now return to the Court with a very similar action
yet seeking a different outcome.
II. Background
The Plaintiff filed the action under Rule 23 of the Federal Rules
of Civil Procedure "on behalf of all persons were Freedmen minor
allottees of the Five Civilized Tribes on May 27, 1908."
During the Civil War, the so-called "Five Civilized Tribes" (i.e.,
the Seminole, Cherokee, Choctaw, Creek, and Chickasaw Tribes) kept
slaves and allied with the Confederacy. Beginning in 1866,
following the defeat of the Confederacy, the United States entered
into a series of treaties and agreements with the Five Civilized
Tribes that, among other things, emancipated the Tribes' slaves and
provided rights for the emancipated slaves (known as the
"Freedmen") within the Tribes. The treaties had a general common
purpose between them, but their provisions varied.
In 1898, the United States enacted The Curtis Act, 30 Stat. 495,
which allotted the land of the Five Civilized Tribes. On May 27,
1908, the United States enacted the law that that is central to
this case. See Act of May 27, 1908, 35 Stat. 312 (the "1908 Act").
Section 1 of the 1908 Act removed all restrictions on land allotted
to certain members of the Tribes, including allottees enrolled "as
freedmen." The heart of the Plaintiffs' claim in the action lies
with Section 6 of the 1908 Act.
The Plaintiffs' claim is premised on their argument that Section 6
imposed a specific fiduciary duty on the Secretary of the Interior
to account for any royalties derived from leases on land allotted
to minor Freedmen. The Plaintiffs generally allege that there was
"a pervasive system of corruption and racism in Indian Country
during the period following the discovery of oil and Oklahoma
statehood." They claim that land was allotted to Freedmen in an
attempt to overcome "protections designed to prevent illiterate and
uneducated allottees from being swindled by unscrupulous persons."
They claim that the Interior Department, through district agents
presumably acting pursuant to the 1908 Act, recovered money on
behalf of minor allottees.
Plaintiff Leatrice Tanner-Brown, who seeks to represent the
putative class of Freedmen descendants, is allegedly the personal
representative of the estate of her grandfather, George Curls, the
son of former Cherokee slaves and was enrolled as a Cherokee
Freedman pursuant to the Dawes Act when he was five years old. Ms.
Tanner-Brown alleges that as a minor, Mr. Curls received allotment
deeds of forty acres and twenty acres located in Nowata County,
Oklahoma from the Cherokee Tribe. See id. She alleges that Mr.
Curls's allotted land was located "in the midst of oil rich
Cherokee Country," and "north of the lucrative Alluwe Oil Field in
the vicinity of the Cherokee Shallow Sands Oil Fields where oil was
located a mere thirty-six feet below the surface in 1904." She
alleges that the Interior Department, however, has no record of any
funds derived from Mr. Curls's allotments.
The only other named Plaintiff, HIFF, which also seeks to represent
the putative class, describes itself as a company formed for the
"vindication of the rights and interests of Freedmen." HIFF states
that Ms. Tanner-Brown is a member of HIFF. Id. HIFF does not
specifically identify any other members, but it alleges that it is
"comprised of members including representatives of other now
deceased Freedmen with a direct personal stake in receipt of
damages for breach of fiduciary duties owed to them by the
Defendants."
As with the 2014 action, the Plaintiffs claim that the Defendants
breached the fiduciary duties purportedly imposed by Section 6 of
the 1908 Act, and seek: (a) certification of the action as a class
action under Rule 23(b) of the Federal Rules of Civil Procedure;
(b) a declaration that the Defendants owed fiduciary duties to
minor Freedmen under the 1908 Act; (c) an order directing the
Defendants to provide the Plaintiffs an accounting; (d) an award of
reasonable costs and attorneys' fees; and (e) any other relief as
may be just and proper.
III. Analysis
The Plaintiffs' theory of the case is very similar to that of the
2014 action. Once again, the Defendants move to dismiss the
Complaint in its entirety on a number of grounds, arguing, among
other things, that: The Plaintiffs lack constitutional standing;
the Plaintiffs' claim is barred by the statute of limitations; the
Plaintiffs fail to state a claim under the Administrative Procedure
Act; and the Plaintiffs fail to state a claim upon which relief may
be granted. The Defendants also argue that the Plaintiffs cannot
certify a class because they did not move for class certification
"within 90 days after filing of a complaint in a case sought to be
maintained as a class action."
Due to the Court's finding that Plaintiffs lack constitutional
standing, Judge Contreras does not reach the remainder of the
Defendants' arguments. As with the 2014 action, he addresses
constitutional standing as a threshold issue, first reviewing the
applicable legal standard and then assessing the standing of each
of the two named Plaintiffs, Ms. Tanner-Brown and HIFF,
separately.
A. Leatrice Tanner-Brown
The Court previously ruled that Ms. Tanner-Brown, who sued in her
personal capacity as a descendent of Mr. Curls, lacked a coherent
theory of standing. The Court required the Plaintiffs to show that
Ms. Tanner-Brown "suffered a concrete, particularized injury
through more than simply genealogy." It also ruled that even if Ms.
Tanner somehow had standing through Mr. Curls' injury, the
"Plaintiffs have generally failed to even allege facts
demonstrating that Mr. Curls suffered a concrete, particularized
injury that is directly traceable to the Defendants."
Ms. Tanner-Brown once again seeks to establish standing, and the
Defendants oppose with a facial challenge. This time, however,
Juduge Contreras finds that Ms. Tanner-Brown has "supplied the
necessary link" to Mr. Curls, by alleging that Ms. Tanner-Brown is
the personal representative of Mr. Curls's estate. Accordingly,
"the Court's standing inquiry will focus exclusively on the alleged
injury to Mr. Curls."
As before, the Plaintiffs have "failed to even allege facts
demonstrating that Mr. Curls suffered a concrete, particularized
injury that is directly traceable to the Defendants." The
Plaintiffs also cannot rely on the Defendants to satisfy the
elements of standing for them, because the "Plaintiffs bear the
burden of demonstrating their standing." Given that the Plaintiffs
have failed to show that Mr. Curls suffered a concrete and
particularized injury, Ms. Tanner-Brown lacks standing to sue on
his behalf.
B. Harvest Institute Freedman Federation, LLC
Judge Liman also finds that HIFF, the only other named Plaintiff in
the action, lacks constitutional standing. HIFF claims to represent
its members and the purported class at large. An association only
has standing to bring suit on behalf of its members when [1] its
members would otherwise have standing to sue in their own right,
[2] the interests it seeks to protect are germane to the
organization's purpose, and [3] neither the claim asserted nor the
relief requested requires the participation of individual members
in the lawsuit."
The Defendants argue that HIFF has failed to meet its burden in
establishing the first and third of these criteria, and Judge
Contreras agrees. The Plaintiffs have entirely failed to meet their
burden on the first criterion, which is alone sufficient for a
finding that HIFF lacks standing. They also fail to establish the
third criterion because the accounting it seeks necessarily
requires "consideration of the individual circumstances of any
aggrieved member of the organization." Judge Liman therefore finds
that HIFF also lacks constitutional standing, and, accordingly,
dismissal pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure is appropriate.
IV. Conclusion
For the foregoing reasons, Judge Liman grants the Defendants'
Motion to Dismiss. An order consistent with the Memorandum Opinion
is separately and contemporaneously issued.
A full-text copy of the Court's July 8, 2022 Memorandum Opinion is
available at https://tinyurl.com/5788xek9 from Leagle.com.
DRIFTWOOD HOSPITALITY: Luque Suit Alleges Unpaid Overtime Wages
---------------------------------------------------------------
MANUEL V. LUQUE and CRISTINA RODRIGUEZ, on behalf of themselves and
all others similarly situated, Plaintiffs v. DRIFTWOOD HOSPITALITY
MANAGEMENT II, LLC, a/k/a TOWNEPLACE SUITES BY MARRIOTT MIAMI
KENDALL WEST, Defendant, Case No. 1:22-cv-22138 (S.D. Fla., July
12, 2022) is a class action against the Defendant for its failure
to compensate the Plaintiff and similarly situated employees
overtime pay for all hours worked in excess of 40 hours in a
workweek in violation of the Fair Labor Standards Act.
Mr. Luque was employed by the Defendant as a houseman and janitor
from approximately January 21, 2022 until May 03, 2022.
Ms. Rodriguez was employed by the Defendant as a housekeeper from
approximately January 13, 2022 until May 03, 2022.
Driftwood Hospitality Management II, LLC, also known as Towneplace
Suites by Marriott Miami Kendall West, is a hospitality services
company, with its place of business in Dade County, Florida. [BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
ELEGANT SERVICE: Fails to Pay Overtime Pay, Clay Suit Alleges
-------------------------------------------------------------
KENNETH CLAY, individually and on behalf of all others similarly
situated, Plaintiff, v. ELEGANT SERVICE, INC.; and SAYEED IMRAN,
individually, Defendants, Case No. 1:22-cv-02708-TWT (N.D. Ga.,
July 11, 2022) is an action against the Defendant's failure to pay
the Plaintiff and the class overtime compensation for hours worked
in excess of 40 hours per week.
Plaintiff Clay was employed by the Defendants as nurse.
ELEGANT SERVICE, INC. is a company that provides hospitality
staffing services to individuals or facilities requiring
hospitality services. [BN]
The Plaintiff is represented by:
Andrew R. Frisch, Esq.
MORGAN & MORGAN, P.A.
8151 Peters Road, Suite 4000
Plantation, FL 33324
Telephone: (954) WORKERS
Facsimile: (954) 327-3515
Email: AFrisch@forthepeople.com
ELEPHANT INSURANCE: Holmes Sues Over Compromised Consumers' Info
----------------------------------------------------------------
CHRISTOPHER HOLMES, on behalf of herself and all others similarly
situated, Plaintiff v. ELEPHANT INSURANCE COMPANY, ELEPHANT
INSURANCE SERVICES, LLC and PLATINUM GENERAL AGENCY, INC. DBA
APPARENT INSURANCE, Defendants, Case No. 3:22-cv-00487 (E.D. Va.,
July 12, 2022) is a class action against the Defendant for
violation of the Drivers' Privacy Protection Act, negligence, and
negligence per se.
The case arises from the Defendants' alleged negligence and
omissions which led to the unauthorized access of consumers' highly
sensitive personally identifiable information (PII) on its systems.
Specifically, the Defendants failed to: (1) maintain adequate
cybersecurity systems, (2) comply with cybersecurity guidelines,
and (3) train its employees on reasonable security measures,
leaving the information an unguarded target for theft and misuse.
As a result of the Defendants' failure to prevent the data breach,
the Plaintiff and the proposed Class have suffered and will
continue to suffer damages, including increased risk of fraud and
identity theft, monetary losses, anxiety, and emotional distress,
says the suit.
Elephant Insurance Company is an insurance firm, with its principal
place of business located in Henrico, Virginia.
Elephant Insurance Services, LLC is a provider of insurance
services, with its principal place of business located in Henrico,
Virginia.
Platinum General Agency, Inc., doing business as Apparent
Insurance, is a wholly-owned subsidiary of Elephant Insurance
Company, headquartered in Henrico, Virginia. [BN]
The Plaintiff is represented by:
Lee A. Floyd, Esq.
Justin M. Sheldon, Esq.
BREIT BINIAZAN, PC
2100 East Cary Street, Suite 310
Richmond, VA 23223
Telephone: (804) 351-9040
Facsimile: (804) 351-9170
E-mail: Lee@bbtrial.com
Justin@bbtrial.com
- and –
Jeffrey A. Breit, Esq.
Kevin Biniazan, Esq.
BREIT BINIAZAN, P.C.
Towne Pavilion Center II
600 22nd Street, Suite 402
Virginia Beach, VA 23451
Telephone: (757) 622-6000
Facsimile: (757) 670-3939
E-mail: Jeffrey@bbtrial.com
Kevin@bbtrial.com
- and –
Gary M. Klinger, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
227 W. Monroe Street, Suite 2100
Chicago, IL 60606
Telephone: (866) 252-0878
E-mail: gklinger@milberg.com
- and –
David K. Lietz, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
5335 Wisconsin Avenue NW, Suite 440
Washington, DC 20015-2052
Telephone: (866) 252-0878
Facsimile: (202) 686-2877
E-mail: dlietz@milberg.com
- and –
M. Anderson Berry, Esq.
CLAYEO C. ARNOLD,
A PROFESSIONAL LAW CORP.
865 Howe Avenue
Sacramento, CA 95825
Telephone: (916) 239-4778
Facsimile: (916) 924-1829
E-mail: aberry@justice4you.com
ESSENTIA HEALTH: Court Denies Appeal From May 9 Order in Kraft Suit
-------------------------------------------------------------------
In the case, Jessica Kraft, et al., Plaintiffs v. Essentia Health,
et al., Defendants, Case No. 3:20-cv-121 (D.N.D.), Judge Peter D.
Welte of the U.S. District Court for the District of North Dakota
denied Essentia's appeal from Magistrate Judge Alice R. Senechal's
May 9, 2022 order regarding a discovery dispute.
I. Introduction
Before the Court is an objection and notice of appeal from court's
order filed by Defendants Essentia Health and Innovis Health, LLC,
d/b/a Essentia Health West, (collectively, "Essentia") on May 23,
2022. Essentia appeals United States Magistrate Judge Alice R.
Senechal's May 9, 2022, order regarding a discovery dispute. On May
31, 2022, Plaintiffs Kraft, et al. ("Plaintiffs"), filed a response
in opposition.
II. Background
The Court is quite familiar with the allegations and claims in the
case. Indeed, this is the second appeal from a discovery dispute
the Court has addressed. In short, the Plaintiffs brought the
putative class action alleging that Essentia sold and administered
injectable pharmaceuticals -- time and temperature sensitive
pharmaceutical products -- that had been stored outside the proper
temperature range. The Plaintiffs assert multiple claims and seek
to recover for economic loss.
The case is still in discovery. The Plaintiffs served various
discovery requests on Essentia, including requests for production
of documents. As part of its response to these discovery requests,
Essentia asserted various privileges to several documents,
including "the peer review/quality assurance privilege." Under
Federal Rule of Civil Procedure 26(b)(5)(A)(ii), a party
withholding documents on the basis of privilege must describe the
withheld documents with enough detail to "enable other parties to
assess the claim" but need not reveal "information itself
privileged or protected."
As Judge Senechal fittingly explained, "striking this balance has
proved difficult." By way of review, Judge Senechal issued a
discovery order on Aug. 2, 2021, addressing the sufficiency of
Essentia's privilege and supplemental privilege log. Pursuant to
the August 2 Order, Essentia was directed to produce a more
specific privilege log: (1) the date on which it was created, (2)
identity of the person who created it and the position held by that
person at the time the document was created, (3) identity of
persons who received the document and their positions, (4) a
description of the subject matter of the document, (5) inclusive
document identification numbers, and (6) specific reference to the
portion of the North Dakota or Minnesota privilege the document is
asserted to meet.
Essentia appealed the August 2 Order to the Court, and it was
affirmed. Essentia then filled an interlocutory appeal and sought a
writ of mandamus in the United States Court of Appeals for the
Eighth Circuit, both of which were dismissed and denied
respectively.
With the first appeal resolved, discovery continued. During a
status conference, the Plaintiffs argued, among other things, that
the privilege log provided by Essentia contained insufficient
detail as to the subject matter descriptions. Recognizing the
August 2 Order did not include a specific directive regarding the
level of detail required as to the subject matter descriptions,
Judge Senechal issued an order on Oct. 14, 2021, directing Essentia
to "provide additional detail, specific to each document over which
it claims the privilege." Essentia complied.
Still unsatisfied with Essentia's supplemental privilege log, the
Plaintiffs filed a motion to compel production of documents
withheld as privileged on Jan. 24, 2022 and requested sanctions. In
that motion, the Plaintiffs argued that Essentia failed to
establish that any of the withheld documents are privileged.
After briefing on the Motion to Compel was concluded but before the
Court issued an order, the North Dakota Supreme Court issued a
decision in St. Alexius Medical Center v. McKibbage, 2022 ND 65,
971 N.W.2d 878. In that case, St. Alexius Medical Center challenged
a state district court's order that compelled disclosure of
allegedly privileged information, under North Dakota's peer review
privilege, on a privilege log. Considering McKibbage, Judge
Senechal ordered supplemental briefing.
In its supplemental brief, Essentia argued that the Court's August
2 Order and October 14 Order "requiring the disclosure of
additional details in Essentia's privilege logs for documents for
which Essentia asserted application of the peer review privilege
are inconsistent with the North Dakota Supreme Court's decision in
McKibbage." The Plaintiffs argued that McKibbage is inapplicable
because this case is governed by Minnesota's peer review privilege
law, not North Dakota's peer review privilege.
With the supplemental briefing concluded, Judge Senechal issued the
May 9 Order, which resolved the motion to compel, as well as issues
raised by the parties as to the impact of McKibbage. In the May 9
Order, Judge Senechal conducted a thorough choice of law analysis
and ultimately found that Minnesota's (rather than North Dakota's)
peer review privilege applied. Thus, she determined that that
McKibbage did not apply and was distinguishable. Additionally, as
to the motion to compel, Judge Senechal found "it necessary to
conduct in-camera review to determine whether documents Essentia
has withheld are privileged under Minnesota's peer review privilege
or under any other asserted privilege."
She invited the parties to each select up to 50 of the documents
listed on Essentia's privilege log for the Court's review, with the
Plaintiffs selecting their documents by May 23, 2022, and Essentia
selecting its documents by June 13, 2022. Judge Senechal also
denied the Plaintiffs' motion to compel, to the extent that the
Plaintiffs' requested the Court order Essentia to disclose all
documents over which it had claimed privilege, and denied the
Plaintiffs' request for an award of fees and costs incurred in
connection with that dispute. Essentia appealed.
III. Discussion
As part of its argument that the May 9 Order is "erroneous and
contrary to law," Essentia raises several issues on appeal.
Essentia first argues that the May 9 Order "improperly determined
that North Dakota law does not apply to Essentia's assertion of the
peer review privilege." Essentia next asserts that, contrary to the
North Dakota Supreme Court's recent decision in McKibbage, "the May
9 Order declined to vacate prior orders requiring Essentia to
provide a detailed privilege log in violation of applicable peer
review statutes." Finally and alternatively, Essentia seeks
certification of the choice-of-law issue to the North Dakota
Supreme Court.
A. Choice of Law
Essentia's first argument presents a choice of law issue -- namely
whether North Dakota's peer review privilege (as opposed to or in
addition to Minnesota's peer review privilege) applies. It
maintains its position that "no outcome-determinative conflict
exists between North Dakota and Minnesota law on the application of
peer review privilege on these facts," and accordingly a
choice-of-law analysis is unnecessary.
Judge Welte disagrees. As explained by Judge Senechal, North
Dakota's and Minnesota's peer review privilege statues have
differing definitions of "peer review organization" sufficient to
generate a conflict. As such, he finds that Essentia has not met
its burden to show that Judge Senechal's conclusion is erroneous or
contrary to law.
Having established a sufficient conflict, the next step of the
analysis requires the Court to determine which state's law applies.
Judge Welte has independently and carefully reviewed and considered
the authority cited by the parties and Judge Senechal. In the
absence of any controlling authority, he is not persuaded that
Judge Senechal's prediction that the North Dakota Supreme Court
would apply an interest-based choice of law approach, as
articulated in Nodak Mut. Ins. Co. v. Wamsley, 2004 ND 174, 687
N.W.2d 226, when analyzing privilege laws is erroneous or contrary
to law.
Essentia next argues that even "assuming in arguendo that North
Dakota would adopt an interest-based test for privileges, the May
9th Order is in error in concluding that the test does not demand
application of North Dakota law."
Again, Judge Welte disagrees. He finds that Judge Senechal's
conclusion that Minnesota's peer review privilege applies not
erroneous or contrary to law. Additionally, because Minnesota's
(rather than North Dakota's) privilege law applies, Judge
Senechal's decision to not vacate the August 2 Order and October 14
Order, both of which address the privilege logs in the case, is
also not erroneous or contrary to law.
As a final note, Judge Welte questions whether this appeal is
premature. He finds that to date, no actual disclosure of any
withheld documents has been ordered, and the substantive peer
review privilege has yet to be applied to any documents. And it is
entirely possible no documents that have been withheld will be
ordered to be produced. Generally, the Court would prefer to
address any ordered disclosure of allegedly privileged documents
(and the applicable peer review privilege statute) in one order and
only after allegedly privileged documents have actually been
compelled to be produced.
Judge Welte has considered all other arguments raised by Essentia
and addressed them to the extent it deems necessary. For the
reasons articulated, he finds that the May 9 Order is not erroneous
or contrary to law. Accordingly, he declines to set aside the May 9
Order.
B. Certification to the North Dakota Supreme Court
Beyond the appeal, Essentia alternatively argues that the question
of which choice-of-law methodology North Dakota would apply when
analyzing conflict of law issues regarding privilege is a novel
issue and that the Court should certify the question to the North
Dakota Supreme Court.
Judge Welte finds that the certification question largely turns on
whether the present issue -- which choice-of-law methodology North
Dakota would apply when analyzing conflict of law issues regarding
privilege -- may be determinative of the proceeding. Importantly,
an answer either for or against Essentia would not be determinative
of this proceeding. Even assuming arguendo that North Dakota courts
would apply the methodology as argued by Essentia and, under this
methodology, North Dakota's peer review privilege applied, the next
steps of discovery still continue. And again, as noted, the May 9
Order simply invites the parties to select and submit a certain
number of documents to the Court for in-camera review to determine
whether Minnesota's peer review privilege even applies.
Accordingly, whether Essentia is successful on its appeal or not,
discovery continues, the underlying case continues, and the
certification would not materially advance the ultimate termination
of the litigation. Accordingly, Judge Welte declines to exercise
discretion to certify a question to the North Dakota Supreme Court
under the facts and circumstances presented in the case. Essentia's
motion for certification is, thus, denied.
IV. Conclusion
Judge Welte has carefully reviewed the May 9 Order, the briefs, the
applicable law, and the entire record. He finds that the May 9
Order is not erroneous or contrary to law. Accordingly, he denies
Essentia's appeal.
A full-text copy of the Court's July 8, 2022 Order is available at
https://tinyurl.com/mr3bh8xm from Leagle.com.
FIRST COMMONWEALTH: Court Affirms Dismissal of D'Happart Suit
-------------------------------------------------------------
In the case, SCOTT A. D'HAPPART AND CHRISTINA M. D'HAPPART
Appellants, v. FIRST COMMONWEALTH BANK, Case No. 580 WDA 2021 (Pa.
Super.), the Superior Court of Pennsylvania affirms the trial
court's May 4, 2021 order sustaining the Appellee's preliminary
objections and dismissing Appellants' complaint with prejudice.
I. Background
The Appellants are natural persons and a married couple. Appellee
First Commonwealth Bank ("FCB") is a local banking association that
is licensed to do business in the Commonwealth of Pennsylvania. It
is headquartered in Pennsylvania.
The Appellants filed a class action complaint on behalf of
themselves and other persons similarly situated on Oct. 13, 2020,
against FCB in the Allegheny County Court of Common Pleas Civil
Division. In their complaint, the Appellants allege five separate
counts: Count I: statutory damages under 13 Pa.C.S. Section
9625(c)(2) on behalf of the pre-sale notice subclass for violation
of 13 Pa.C.S. Sections 9610, 9614, and 12 Pa.C.S. Section 6256(c);
Count II: statutory damages under 13 Pa.C.S. Section 9625(c)(2) on
behalf of the improper expenses subclass for violation of 13
Pa.C.S. Sections 9610, 9614, and 12 Pa.C.S. Section 6256(c); Count
III: statutory damages under 13 Pa.C.S. Section 9625(e)(5) on
behalf of the disposition notice subclass for violation of 13
Pa.C.S. Sections 9610 and 9616, and 12 Pa.C.S. Section 6261(d);
Count IV: statutory damages for breach of contract on behalf of the
pre-sale notice subclass pursuant to 13 Pa.C.S. Sections 9610 and
9625; Count V: statutory damages for conversion on behalf of the
pre-sale notice subclass pursuant to 13 Pa.C.S. Sections 9610 and
9625.
By order of court dated Nov. 19, 2020, the case was assigned to the
Commerce and Complex Litigation Center, to be overseen by the
Court.
In response to the complaint, FCB filed preliminary objections on
Dec. 16, 2020, as well as a brief in support of preliminary
objections. The Appellants filed an answer to FCB's preliminary
objections on Feb. 5, 2021. On March 11, 2021, the Court heard the
parties' arguments on FCB's preliminary objections. On May 4, 2021,
the Court issued an order sustaining FCB's preliminary objections
and dismissing the Appellants' complaint with prejudice.
On May 5, 2021, the Appellants filed a notice of appeal, appealing
the Court's May 4, 2021 order sustaining FCB's preliminary
objections to the Superior Court of Pennsylvania. On May 6, 2021,
the Court ordered the Appellants to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The
Appellants filed their concise statement of errors complained of on
appeal on May 26, 2021.
On appeal, the Appellants raise the following questions for the
Superior Court's review:
1. Whether the trial court erred by considering FCB's
unverified factual allegations for which there is no support in the
record.
2. Whether the trial court erred by ruling that FCB used a
form notice that entitled it to a statutory safe harbor defense.
3. Whether the trial court erred by ruling that FCB had not
been required to issue a post-sale, deficiency notice to the
Appellants.
4. Whether the trial court erred by ruling that the Appellants
could have no remedy through the Uniform Commercial Code UCC, 13
Pa.C.S. Section 1101 et seq., for FCB's violations of the Motor
Vehicle Sales Finance Act (MVSFA), 12 Pa.C.S. Section 6201 et seq.
5. Whether the trial court erred by ruling that the Appellants
had failed to state claims for statutory damages under the UCC
based upon FCB's breach of contract and its unlawful conversion of
certain of the Appellants' rights in property.
6. Whether the trial court erred by ruling that the gist of
the action doctrine precluded the Appellants' claim for statutory
damages under the UCC based upon FCB's unlawful conversion of
certain of the Appellants' rights in property.
7. Whether the trial court erred by dismissing the complaint
with prejudice, without first permitting the Appellants an
opportunity to amend the complaint.
II. Discussion
A. Issue 1
In the Appellants' first issue, they argue that the trial court
erred in "relying upon FCB's unverified allegations of facts
outside of the record." The Appellants claim that, "in so doing,
the court below ran afoul of the well-rooted principle that, for
preliminary objections in the nature of a demurrer, courts must
constrain the scope of review to the pleadings."
The Superior Court conclude that the trial court could take
judicial notice of Appellants' bankruptcy petition and the
discharge order, as the facts contained therein were admitted by
Appellants and therefore not in dispute. However, to the extent
that the trial court considered other facts -- aside from those
contained in the bankruptcy petition and discharge order -- that
were not alleged in the Appellants' complaint, the Superior Court
deems the trial court's reliance on those facts to be improper and
proceeds in its review of the Appellants' remaining issues
accordingly.
B. Issue 2
In the Appellants' second issue, they claim that FCB's "pre-sale
notice did not meet the requirements of the UCC, and FCB is not
entitled to a 'safe harbor' defense because it did not use the
UCC's 'safe harbor' form." No relief is due on this basis.
The Superior Court concludes that FCB's pre-sale notice complied
with Section 9614(1). It finds that FCB's pre-sale notice contains
the information required by Section 9613(1), as mandated by Section
9614(1)(i). FCB's pre-sale notice also complies with Section
9613(1)(iv)'s requirement to "state that the debtor is entitled to
an accounting of the unpaid indebtedness and state the charge, if
any, for an accounting." The FCB's pre-sale notice likewise
satisfies the remaining requirements of Section 9614(1). It
includes "a description of any liability for a deficiency of the
person to which the notification is sent."
The Superior Court also concludes that FCB's pre-sale notice meets
the remaining requirements of Section 6254(c). It contains an
itemized statement of the total amount required to redeem the
vehicle by payment of the contract in full ($13,832.63), notice to
the Appellants of FCB's intent to resell the motor vehicle at the
expiration of 15 days from the date of mailing the notice, and the
place where the vehicle is stored. It also includes the name and
address of the person to whom the Appellants will make payment, a
statement that any personal property left in the repossessed
vehicle will be held for 30 days from the date of the mailing of
the notice, and the name and address of the person that the
Appellants may contact to receive a full statement of account.
Thus, even if FCB was obligated to comply with Section 6254 of the
MVSFA, the Superior Court would determine that FCB met its
requirements.
C. Issue 3
In the Appellants' third issue, they argue that the trial court
"erred by determining that FCB had not been required to issue any
post-sale notice to the Appellants since it did not make any
attempt to collect a deficiency." They claim that this
determination was incorrect as "(i) the law plainly and
unambiguously required FCB to issue a post-sale notice to the
Appellants; (ii) the Appellants are entitled to the remedies under
the UCC for FCB's violations of the MVSFA; and (iii) FCB's
unverified allegation that it did not attempt to collect a
deficiency is unsupported by the record."
The Superior Court holds that (i) it discerns no violation of it by
the Appellants finding that because FCB could not collect any
deficiency due to the bankruptcy court's discharge order, it was
not obligated to send an explanation under Section 9616(b)(1); (ii)
it disagrees with the Appellants' argument that, if the statutes
are construed in pari materia, FCB had to send a deficiency notice
under the MVSFA's Section 6261, where FCB did not try to collect
the deficiency; and (iii) the Appellants "made no allegation that
FCB ever attempted to collect the deficiency from them.
D. Issue 4
In the Appellants' fourth issue, they advance that "the UCC
provides the remedy for FCB's violations of the MVSFA." They,
again, say that "courts must read the UCC and MVSFA in pari
materia, and the UCC provides the remedy for sFCB's violations of
the MVSFA."
No relief is due on this issue, the Superior Court holds. It
says,even upon its attempt to read the UCC and the MVSFA in pari
materia as Appellants urge it to do, it has uncovered no violations
of the MVSFA that would warrant relief under the UCC. Thus, it
deems this claim meritless.
E. Issue 5
In the Appellants' fifth issue, they claim that they "have fully
pleaded claims under the UCC for FCB's breach of contract, and its
conversion of the Appellants' property." They contend that "those
claims are grounded in the requirement of Section 9610 of the UCC
that 'every aspect of a disposition of collateral, including the
method, manner, time, place and other terms, must be commercially
reasonable.'" As such, they argue that, "as with UCC remedies for
violations of the MVSFA, common law claims trigger violations of
the commercial reasonableness requirement under the UCC."
First, the Superior Court holds that pursuant to the RISC, the
amount the Appellants must pay to redeem would include the expenses
of taking the vehicle, holding it, and preparing it for sale.
Moreover, the Appellants point it to nothing in the RISC that says
those expenses must be paid directly to FCB, and its own review
uncovers no such requirement. Therefore, FCB did not breach the
RISC by stating in the pre-sale notice that "in addition to paying
us the Total Amount Due, you must also pay storage fees of $25 per
day and other costs charged by Altoona Auto Auction. These charges
must be paid to Altoona Auto Auction at the time when you redeem
your vehicle." As such, it concludes that the RISC and the pre-sale
notice likewise do not support that FCB breached the RISC in this
manner. Thus, all of Appellants' breach-of-contract claims fail.
Regarding the Appellants' conversion claim, the Superior Court
holds that they do not convince it that the trial court erred. It
has already determined that FCB's pre-sale notice was sufficient
under the UCC, the MVSFA, and the RISC. Thus, it rejects the
Appellants' legal conclusion that FCB lacked lawful justification
to dispose of the vehicle. No relief is due on this basis.
F. Issue 6
In the Appellants' sixth issue, they argue that "the gist of action
doctrine does not preclude any of their causes of action." The
trial court determined that, "because the Appellants' conversion
claim is based on FCB's alleged default of the RISC, Pennsylvania's
gist of the action doctrine precludes recovery." The Appellants
claim that the trial court erred on this basis, as FCB's "duty to
abstain from unlawful interference with their property interests
does not stem from any contract," and they assert that "the gist of
the action doctrine can have no application when all of the
Appellants' claims are for statutory damages under the UCC."
Because it has already concluded that the Appellants failed to
establish FCB's conversion of their vehicle, the Superior Court
need not address whether that claim is barred by the gist of the
action doctrine. Accordingly, it does not delve into the
Appellants' sixth issue further.
G. Issue 7
In the Appellants' seventh and final issue, they argue that "the
trial court erred by dismissing their complaint without permitting
them an opportunity to amend." They say that, "even if dismissal of
this case had been justifiable under the law, the Appellants should
nevertheless had been permitted to amend their pleading to cure any
alleged defect." The Appellants have waived this issue by not
seeking leave to amend their complaint with the trial court.
The Superior Court agrees with FCB's analysis. As the Appellants
did not ask the trial court to allow them to amend their complaint,
they have waived this claim.
IV. Conclusion
In sum, the Superior Court concludes that none of the Appellants'
seven issues warrant relief. Accordingly, it affirms the trial
court's order sustaining FCB's preliminary objections and
dismissing the Appellants' complaint with prejudice.
A full-text copy of the Court's July 8, 2022 Decision is available
at https://tinyurl.com/3ztrk2yj from Leagle.com.
GARRISON PROTECTIVE: Griffin Sues Over Untimely Payment of Wages
----------------------------------------------------------------
LAMAR GRIFFIN, on behalf of himself and all others similarly
situated, Plaintiff v. GARRISON PROTECTIVE SERVICES, INC.,
Defendant, Case No. 1:22-cv-04073-KAM-CLP (E.D.N.Y., July 12, 2022)
is a collective and class action complaint brought by the Plaintiff
against the Defendant to seek redress for its alleged unlawful pay
practice and policy that violated the Fair Labor Standards Act and
New York Labor Law.
The Plaintiff has worked for the Defendant as a full-time security
guard from February 2017 until March 2020.
According to the complaint, the Defendant failed to promptly and
completely pay the Plaintiff' and other similarly situated Security
Guards' minimum and overtime wages throughout their employment with
the Defendant. Instead of paying them on a weekly basis, the
Defendant pay them on a bi-weekly basis. The Defendant also failed
to provide them with accurate wage statements that include the
correct hourly pay rates, hours worked, overtime pay rates,
overtime hours, and other information, says the suit.
Garrison Protective Services, Inc. provides security services.
[BN]
The Plaintiff is represented by:
David C. Wims, Esq.
LAW OFFICE OF DAVID WIMS
1430 Pitkin Ave., 2nd Floor
Brooklyn, NY 11233
Tel: (646) 393-9550
GRAZIANO'S GOURMET: Scalia Files Suit Over Unpaid Overtime Wages
----------------------------------------------------------------
CHRISTIAN SCALIA, and other similarly situated individuals,
Plaintiff v. GRAZIANO'S GOURMET AT AVENTURA, LLC, a/k/a GRAZIANO'S
MARKET AVENTURA, ROBERT GRAZIANO, and LEO GRAZIANO, individually,
Defendants, Case No. 1:22-cv-22126-BB (S.D. Fla., July 12, 2022)
brings this complaint to recover damages for unpaid overtime wages
pursuant to the Fair Labor Standards Act.
The Plaintiff was employed by the Defendant as a non-exempted
full-time restaurant employee approximately from August 1994 to May
2, 2022 performing duties as a cook, line cook, baker, butcher,
cashier, waiter, busser, and dishwasher.
The Plaintiff claims that he received the same salary of $1,346.16
weekly regardless of the number of hours he worked in a week.
Although he consistently worked more than 40 hours per week, the
Defendants did not pay him his lawfully earned overtime
compensation at the rate of one and one-half times his regular rate
of pay for all hours he worked in excess of 40 per workweek. In
addition, the Defendants paid him on a bi-weekly basis with
paystubs that did not show the number of hours worked, says the
Plaintiff.
Graziano's Gourmet at Aventura, LLC operates a restaurant a/k/a
Graziano's Market Aventura. Robert Graziano and Leo Graziano are
the owners and operators of the Corporate Defendant. [BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Tel: (305) 446-1500
Fax: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
HERCULES TREE: Fails to Pay Overtime Wages, Ray et al. Claim
------------------------------------------------------------
The case, IVAN RAY, JUSTIN WORKMAN, DMICHAEL KING, GAVIN CHEW, and
DARWIN FILEY, Plaintiffs v. HERCULES TREE SERVICES LLC, and CODY
BUTZER, Defendants, Case No. 5:22-cv-01221 (N.D. Ohio, July 12,
2022) challenges the Defendants' alleged unlawful policies and
practices that willfully violated the Fair Labor Standards Act.
The Plaintiffs were employed by the Defendants: Plaintiff Ray as a
Ground Person for approximately 18 months in 2019 and 2020,
Plaintiff Workman as a Foreman for approximately 9 months in 2020
and 2021, Plaintiff King as a Ground Person for approximately 6
months in 2020 and 2021, Plaintiff Chew as a Ground Person for
approximately 2 years in 2019 to 2021, and Plaintiff Filey as a
Ground Person for approximately 2 years in 2018 to 2020.
The Plaintiffs claim that they routinely worked in excess of 40
hours per workweek. However, the Defendants did not pay them their
lawfully earned overtime compensation at the rate of one and
one-half times their regular rates of pay for all hours worked in
excess of 40 per workweek, the Plaintiffs assert.
The Plaintiffs seek to recover actual damages for unpaid wages and
liquidated damages, pre- and post-judgment interest, attorneys'
fees, costs, and disbursements, and other relief as the Court deems
just and proper.
Hercules Tree Services LLC provides various services involving tree
trimming and removal. Cody Darwin Filey is the founder, owner,
president, and operator of the Corporate Defendant. [BN]
The Plaintiffs are represented by:
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: hans@ohlaborlaw.com
- and –
Jeffrey J. Moyle, Esq.
NILGES DRAHER LLC
1360 E. 9th St., Suite 808
Cleveland, OH 44113
Tel: (216) 230-2955
Fax: (330) 754-1430
E-mail: jmoyle@ohlaborlaw.com
HOME HEALTH: Mallett FCRA Suit Removed to E.D. California
---------------------------------------------------------
The case styled GLORIA MALLETT, individually and on behalf of all
others similarly situated v. HOME HEALTH CARE MANAGEMENT, INC.,
doing business as HOME AND HEALTH CARE MANAGEMENT, and DOES 1 to
100, inclusive, Case No. 34-2022-00320317, was removed from the
Superior Court of the State of California for the County of
Sacramento to the U.S. District Court for the Eastern District of
California on July 11, 2022.
The Clerk of Court for the Eastern District of California assigned
Case No. 2:22-cv-01217-KJM-KJN to the proceeding.
The case arises from the Defendant's alleged violations of the Fair
Credit Reporting Act, California Investigative Consumer Reporting
Agencies Act, and California's Unfair Competition Law by requiring
job applicants to undergo background checks and by not providing
them with the required disclosures to perform consumer reports as
standalone documents.
Home Health Care Management, Inc., doing business as Home and
Health Care Management, is a healthcare services provider based in
Chico, California. [BN]
The Defendant is represented by:
Treaver K. Hodson, Esq.
Alexandra M. Asterlin, Esq.
PALMER KAZANJIAN WOHL HODSON LLP
2277 Fair Oaks Boulevard, Suite 455
Sacramento, CA 95825
Telephone: (916) 442-3552
Facsimile: (916) 640-1521
IGLOO PRODUCTS: E.D. New York Grants Bid to Toss Chung Class Suit
-----------------------------------------------------------------
In the case, DAVID CHUNG and STEVEN HARGROVE, individually and on
behalf of all others similarly situated, Plaintiffs v. IGLOO
PRODUCTS CORP., Defendant, Case No. 20-CV-4926 (MKB) (E.D.N.Y.),
Judge Margo K. Brodie of the U.S. District Court for the Eastern
District of New York grants the Defendant's motion to dismiss the
complaint and dismisses the Plaintiffs' claims without prejudice.
I. Introduction
Plaintiffs David Chung and Steven Hargrove commenced the putative
class action on Oct. 13, 2020, against Defendant Igloo, alleging
that the portable ice coolers manufactured by the Defendant do not
retain ice as marketed, advertised, and promoted. The Plaintiffs
allege that the Defendant violated the New York General Business
Law (the "GBL"), N.Y. Gen. Bus. Law Sections 349 and 350; the New
Jersey Consumer Fraud Act (the "CFA"), N.J. Stat. Ann. Sections
56:8-1 et seq.; and assert claims for breach of express warranty,
negligent misrepresentation, fraud, and unjust enrichment under
common law. The Plaintiffs seek injunctive relief, damages, and
attorneys' fees and costs.
The Defendant moves to dismiss the Complaint for failure to state a
claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure and for lack standing pursuant to Rule 12(b)(1) and the
Plaintiffs oppose the motion.
II. Background
The Defendant manufactures, markets, and sells portable ice coolers
throughout the United States with various "ice retention" claims.
It defines ice retention as "the amount of time that it takes ice
to reach 39 degrees and begin to melt." The Defendant sells a line
of coolers that claim, "3 Day," "5 Day," "7 Day," or "120 Hour" ice
retention and include clarifying language that states the coolers
retain ice "Under Controlled Conditions in 90 degrees constant."
The prices of the ice coolers range from $20 to $250.
The Plaintiffs focus on the Defendant's manufacture of an Igloo
Latitude 90-quart cooler (the "Product") that it claims retains ice
for 120 hours. The Product's label specifies that it retains ice
in: "*5 DAYS IN 32°C (90°f) HEAT. CONTINUOUS HEAT UNDER
CONTROLLED CONDITIONS." The Product also carries an express Limited
Warranty guaranteeing that it will "be free from defects in
material or workmanship." The Limited Warranty claims to be the
"exclusive warranty" offer to "repair the product free of charge or
provide the consumer with a replacement product if the product
proves defective."
Mr. Chung, a citizen of the State of New York, purchased the
Product for personal use after seeing its 120-hour ice retention
claim. Chung paid $49 for the Product and used it for fishing,
travel, and picnics mostly in temperatures ranging between seventy
to ninety degrees Fahrenheit. He initially placed 30 to 40 pounds
of ice in the cooler and claims that the ice was retained for a
maximum of two days while draining the water every few hours. Chung
had to replenish the ice in order to keep fresh food from spoiling
on fishing trips or during long-term travel.
Mr. Hargrove, a citizen of New Jersey, purchased the Product for
personal use after seeing its 120-hour ice retention claim.
Hargrove paid $60 for the Product and used it for fishing, picnics,
and barbeques mostly in temperatures ranging between 80 to 90
degrees Fahrenheit. On long fishing trips, he packs three to four
bags of ice in the cooler and on the way home adds another two to
three bags of ice in the cooler. However, the cooler is mostly
water with some pieces of ice floating in it by the time he returns
home. When he uses the cooler for a barbeque or picnic, he notices
that most of the ice melts into water by late afternoon.
The Plaintiffs expected the Product to last for 120 hours based on
the representations made by the Defendant but claim that the
Product does not retain ice for the amount of time advertised. They
assert that the Defendant, despite knowing that their ice coolers
did not retain ice for the specified period, continued to represent
the Product's quality and fitness and continued to warrant that the
units were "free from defects in materials and workmanship." The
Plaintiffs contend that other customers have complained to the
Defendant that the coolers do not perform as promised. Several
reviews stated that Defendant's ice coolers failed to function as
advertised. They also refer to several "experiments" conducted by
consumers who purchased the Product, in which the Product failed to
retain ice for the promised period.
On Oct. 13, 2020, the Plaintiffs commenced the class action
alleging deceptive and unfair business practices in violation of
several consumer protection laws, including the New York GBL and
the New Jersey CFA, and also asserting claims for breach of express
warranty, negligent misrepresentation, fraud, and unjust enrichment
under common law. They seek to bring this suit on behalf of all
persons in the United States who purchased one or more of the
Defendant's ice coolers that claimed "3 Day, 5 Day, 7 Day, or 120
Hour" ice retention. In addition to damages, the Plaintiffs seek
injunctive relief and attorneys' fees and costs.
The Defendant moves to dismiss the Complaint for lack standing
pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure
and for failure to state a claim pursuant to Rule 12(b)(6), and the
Plaintiffs oppose the motion.
III. Discussion
A. Plaintiffs lack standing to seek injunctive relief
The Defendant argues that the Plaintiffs lack Article III standing
to pursue injunctive or declaratory relief because they cannot
demonstrate a risk of future harm. The Plaintiffs contend that they
have standing to pursue injunctive relief because they are unable
to rely on the Defendant's labeling in the future, which will cause
them to avoid purchasing the Product, even though they would like
to.
Judge Brodie finds that the Plaintiffs fail to demonstrate any
imminent future injury and thus lack standing to seek injunctive
relief. She finds that by their own admission, the Plaintiffs would
purchase the Product again only if Defendant changes its labeling.
Thus, there is no risk that they would purchase the Product with
the current label because it is purportedly deceptive and,
therefore, the Plaintiffs cannot show an imminent risk of future
deception and injury. Any potential "future injury is merely
conjectural or hypothetical" because even if the Plaintiffs
purchased the Product again, they would do so "with exactly the
level of information" that they possessed from the outset of this
suit, and accordingly would not be deceived or harmed.
B. Plaintiffs properly allege class standing
The Defendant argues that the Plaintiffs cannot represent "all
persons who purchased one or more of Defendant's ice coolers that
claimed, '3 Day, 5 Day, 7 Day, or 120 Hour' ice retention" because
the Plaintiffs only purchased the 90-Quart Latitude model and
cannot assert claims relating to products that they did not
purchase. The Plaintiffs argue that it is premature to evaluate
their class standing and that the Defendant conflates Article III
standing with class certification requirements and class standing
should be deferred until class certification. In addition, they
assert that all ice coolers have substantially similar
misrepresentations on their labels, were all tested at the same
laboratory setting, and all fail to perform as represented.
Judge Brodie denies the Defendant's motion to dismiss the
Plaintiffs' claims for lack of class standing arising from
unpurchased products. She finds that because the named Plaintiffs
have standing to assert a claim directly against the Defendant, the
Plaintiffs have satisfied the Article III standing requirement for
class actions. Moreover, the Plaintiffs have no further burden to
demonstrate Article III standing. They have sufficiently stated a
cognizable injury by the Defendant -- that they were misled into
purchasing a product that failed to perform as advertised -- and
have therefore established Article III standing.
C. Consumer protection claims
The Defendant argues that the Plaintiffs "lack standing" to bring
consumer protection claims under the New York GBL because they have
not alleged where they purchased the Product. As to the merits of
the consumer protection claims, the Defendant argues that the
Plaintiffs have not sufficiently pled these claims because a
reasonable consumer would not likely be deceived or misled by the
Product's marketing and advertising.
The Plaintiffs contend that the "up to" language is deceptive
because reasonable consumers would interpret it to mean the product
would "likely" perform at the maximum level "in normal usage" and,
under normal conditions, the Product cannot retain ice for 120
hours. They also contend that the Defendant's clarifying language
is inconspicuous and therefore ineffective to cure this
misrepresentation.
Judge Brodie dismisses the Plaintiffs' New York GBL claims. She
finds that the Plaintiffs fail to adequately allege that the
Product's ice retention claim could deceive a reasonable customer;
and the Plaintiffs fail to meet the territorial requirement of GBL
sections 349 and 350 because they fail to allege that the allegedly
deceptive transactions involving the Plaintiffs occurred in New
York.
However, Judge Brodie grants the Defendant's motion and dismisses
the Plaintiffs' New Jersey CFA claim. She says, the Plaintiffs do
not sufficiently plead ascertainable loss under either the
"loss-in-value" theory or the "benefit-of-the-bargain" theory. The
Complaint lacks price information about comparable ice coolers and
does not explain how the $60 Hargrove paid for the Product at
Costco is a price premium. Absent this information, the Plaintiffs'
allegation that Hargrove would not have paid a premium price for
the Product and would have purchased other, less expensive coolers
is an unsupported conclusory statement and is insufficient to plead
ascertainable loss based on price differences.
D. Breach of express warranty
The Defendant argues that the Plaintiffs' express warranty claim
fails because the Product "does not remotely guarantee '120 Hour
Ice Retention' in normal usage," and the label has "clarifying
language" that contradicts that interpretation. In addition, it
argues that the Limited Warranty -- guaranteeing that the Product
will "be free from defects in material or workmanship" -- that
accompanied the Plaintiffs' purchases was the only express warranty
in force, and, under this Limited Warranty, the Plaintiffs failed
to provide Defendant with notice of any defects in the product as
required by the warranty. The Plaintiffs contend that they have
properly pled claims for breach of express warranty under both New
York and New Jersey law.
Judge Brodie dismisses the Plaintiffs' New York express warranty
claim for lack of notice. She finds that the Plaintiffs have failed
to allege that they provided the requisite notice to support their
New York breach of warranty claim; and the existence of prior
complaints by other consumers cannot satisfy the notice requirement
for the suit" because it does not create a vehicle for negotiation
between the allegedly harmed consumer and manufacturer.
Judge Brodie also dismisses the Plaintiffs' express warranty claim.
She finds that the Plaintiffs' allegation that the Product does not
properly retain ice is properly characterized as a design defect
because it is an alleged flaw inherent in the Product's intended
operation and construction and not a deviation from other units.
Thus, the Plaintiffs fail to sufficiently allege that the Limited
Warranty covers the alleged defects of the Product.
E. Common law claims
The Defendant argues that the Plaintiffs' common law claims for
negligent misrepresentation, fraud, and unjust enrichment are
insufficiently pled because the Plaintiffs have failed to allege at
least one element of each claim.
First, Judge Brodie dismisses the Plaintiffs' negligent
misrepresentation claims. She finds that the Plaintiffs' New York
negligent misrepresentation claim fails because they have not
alleged a special relationship between themselves and the
Defendant; they are a "faceless or unresolved class or persons" to
whom the Defendant owed no special duty of care; and the
Plaintiffs' negligence claim under New Jersey law fails for the
same reason that their CFA claim fails. Without allegations as to
ascertainable losses, the Plaintiffs have failed to plead a claim
for negligent misrepresentation under New Jersey law.
Next, Judge Brodie dismisses the Plaintiffs' fraud claims. She
holds that the Plaintiffs' allegations of fraudulent intent are
conclusory. They also fail to assert factual allegations
demonstrating that the Defendant possessed a strong motive to
commit fraud or circumstantial evidence of conscious misbehavior or
recklessness.
Lastly, Judge Brodie dismisses the Plaintiffs' New York and New
Jersey unjust enrichment claims. As to the Plaintiffs' New York
unjust enrichment claim, they allege violations of the GBL and CFA,
as well as several common-law torts. The Plaintiffs' unjust
enrichment claim is based on the same allegations as those set
forth in support of these other claims, and they have not shown how
their unjust enrichment claim differs from their other claims.
Judge Brodie therefore dismisses their unjust enrichment claim as
duplicative.
As to the Plaintiffs' New Jersey unjust enrichment claim, Judge
Brodie finds that although the Plaintiffs allege that the Defendant
was unjustly enriched through the purchase of the Product, there
was no relationship conferring any direct benefit on Defendant
through Hargrove's purchase, as the purchase was made through a
retailer, Costco. Without an allegation of a direct relationship or
a mistake, the Plaintiffs have insufficiently pled a claim for
unjust enrichment.
F. Leave to amend
Judge Brodie grants the Plaintiffs leave to amend the Complaint.
Any amended complaint must be filed within 30 days of the date of
the Memorandum and Order. An amended complaint will completely
replace the Complaint and must stand on its own without reference
to the Complaint and must contain all of the claims the Plaintiffs
seek to pursue. The amended complaint must be captioned "Amended
Complaint" and bear the same docket number as the Memorandum and
Order.
IV. Conclusion
For the reasons stated, Judge Brodie grants the Defendant's motion
and (1) dismisses without prejudice the Plaintiffs' claims for
injunctive relief for lack of subject matter jurisdiction pursuant
to Rule 12(b)(1) and (2) dismisses the Plaintiffs' GBL, CFA, breach
of express warranty, and common law claims for failure to state a
claim pursuant to Rule 12(b)(6). She grants the Plaintiffs leave to
file an amended complaint within 30 days from the entry of the
Memorandum and Order and stays all proceedings for 30 days or until
the Plaintiffs file an amended complaint, whichever is earlier. If
the Plaintiffs fail to file an amended complaint within the time
allowed or to show good cause as to why they cannot, the Court will
direct the Clerk of Court to enter judgment dismissing the action
for the reasons stated.
A full-text copy of the Court's July 8, 2022 Memorandum & Order is
available at https://tinyurl.com/2mw33an5 from Leagle.com.
JUUL LABS: Faces Clarkston Suit Over Deceptive E-Cigarette Ads
--------------------------------------------------------------
CLARKSTON COMMUNITY SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC., et al.,
Defendants, Case No. 3:22-cv-04044 (N.D. Cal., July 11, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Clarkston Community Schools case has been consolidated in MDL
No. 2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Clarkston Community Schools is a unified school district with its
offices located at 6389 Clarkston Road in Clarkston, Michigan.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Galesburg-Augusta Sues Over Deceptive E-Cigarette Ads
----------------------------------------------------------------
GALESBURG-AUGUSTA COMMUNITY SCHOOLS, on behalf of itself and all
others similarly situated, Plaintiff v. JUUL LABS, INC., et al.,
Defendants, Case No. 3:22-cv-04063 (N.D. Cal., July 12, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Galesburg-Augusta Community Schools case has been consolidated
in MDL No. 2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES,
AND PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Galesburg-Augusta Community Schools is a unified school district
with its offices located at 1076 North 37th Street in Galesburg,
Michigan.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Kalama School Sues Over Youth E-Cigarette Marketing
--------------------------------------------------------------
KALAMA SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC., et al.,
Defendants, Case No. 3:22-cv-04050 (N.D. Cal., July 11, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Kalama School District case has been consolidated in MDL No.
2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Kalama School District is a unified school district with its
offices located at 549 China Garden Road in Kalama, Washington.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Triggers Youth E-Cigarette Crisis, Hilldale Suit Says
----------------------------------------------------------------
HILLDALE PUBLIC SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC., et al.,
Defendants, Case No. 3:22-cv-04047 (N.D. Cal., July 11, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Hilldale Public Schools case has been consolidated in MDL No.
2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Hilldale Public Schools is a unified school district with its
offices located at 313 East Peak Boulevard in Muskogee, Oklahoma.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
LANDS' END: Wins Bid for Partial Summary Judgment in Gilbert Suit
-----------------------------------------------------------------
In the case, GWYNETH GILBERT, MICHAEL MARTE, MONICA DESCRESCENTIS,
RACHEL ABUKHDEIR, and STEPHANIE ANDREWS, et al., Plaintiffs v.
LANDS' END, INC., Defendant, Case Nos. 19-cv-823-jdp,
19-cv-1066-jdp (W.D. Wis.), Judge James D. Peterson of the U.S.
District Court for the Western District of Wisconsin issued an
Opinion and Order:
1. granting Defendant Lands' End's motion in limine to exclude
the opinions of Michael Freeman;
2. granting Defendant Lands' End's motion in limine to exclude
the opinions of Fred Apple;
3. granting Defendant Lands' End's motion in limine to exclude
the opinions of Pamela Scheinman;
4. denying as moo Defendant Lands' End's motion in limine to
exclude the testimony of the Plaintiffs' Rule 26(a)(2)(C)
experts; and
5. granting Defendant Lands' End's motion for partial summary
judgment.
I. Introduction
The Plaintiffs in these consolidated cases are 603 current and
former Delta Air Lines employees who allege that their uniforms,
which were manufactured by Defendant Lands' End, transferred dye
onto clothing and other property and caused health problems,
including skin rashes, hair loss, difficulty breathing, and
headaches. The Plaintiffs sue Lands' End for negligence, strict
design defect, manufacturing defect, failure to warn, breach of
implied warranty, and violation of the Magnuson-Moss Warranty Act.1
The case is proceeding on two tracks: track 1 is for issues that
affect all the Plaintiffs or large groups of Plaintiffs; track 2 is
for issues specific to individual plaintiffs.
Lands' End has filed several track 1 motions, seeking rulings that
would apply to all the Plaintiffs' personal injury claims. First,
Lands' End moves to exclude the testimony and opinions of the
Plaintiffs' causation experts on the grounds that the experts'
opinions are based on unreliable methods and unsound data. Second,
Lands' End moves to exclude the Plaintiffs' Rule 26(a)(2)(C)
experts (treating physicians for 174 Plaintiffs) on the ground that
the treating physicians did not form causation opinions during the
course of treatment. It moves for summary judgment on the
Plaintiffs' personal injury claims, arguing that without their
experts, the Plaintiffs cannot prove that the Lands' End uniforms
were defective or caused the Plaintiffs' health problems. Lands'
End also argues that the claims of three Plaintiffs are precluded
by decisions of the New York Workers' Compensation Board.
II. Background
Lands' End manufactured nearly 100 different garments as part of a
new line of Delta uniforms, including dresses, skirts, shirts,
blouses, sweaters, jackets, and pants. The garments were treated
with a variety of chemical additives and finishes to make them
stretchy, wrinkle- and stain-resistant, anti-static, and
deodorizing. The uniforms were worn by approximately 64,000 Delta
employees. Since the general distribution of the new uniforms in
2018, Lands' End has received approximately 2,470 complaints from
Delta employees about the uniforms. Lands' End divided the
complaints into the following categories: skin irritation (1,192);
allergies (419); and crocking (358). Lands' End also received a
smaller number of complaints that did not fall into these
categories, including complaints about hair loss and headaches.
The Plaintiffs allege that chemicals and heavy metals used in the
finishes of the Lands' End uniforms leached onto their skin and
aerosolized, causing then to experience numerous health problems,
including: contact dermatitis, rashes, blisters, boils, hives,
bruising, eczema, scarring, hair loss, follicle inflammation,
respiratory distress, vocal cord disfunction, breathing
difficulties, shortness of breath, coughing, tightness of chest,
blurred vision, dry eyes, nosebleeds, ringing ears, sinus problems,
headaches, fatigue, muscle weakness, anxiety, swollen lymph nodes,
anaphylactic symptoms, and auto-immune conditions.
Both Lands' End and the Plaintiffs' counsel commissioned testing
from third-party testing agencies to assess the degree of crocking
and the amount of chemicals and heavy metals contained in
individual garments from the uniform line. The testing results have
varied, showing that the garments were treated with different types
of finishes, depending on the garment and the manufacturing
facility. Testing by Intertox and Bureau Veritas found no levels of
chemicals or metals exceeding industry standards. Most testing
results from various agencies showed formaldehyde levels below
industry standards, but testing from TextTest showed four garments
with total formaldehyde levels above the recommended extractable
limits of 75 ppm. Testing from Vartest labs showed that some
garments crocked dye, and that the chemical fluorine leeched out
with purple dye. ALS testing showed the presence of chromium,
nickel, antimony, and mercury in some garments, but none at levels
that exceeded industry standards. And testing by Enthalpy
Analytical showed the presence of chromium, nickel, and mercury in
some garments, though not at levels above industry standards.
III. Analysis
The Plaintiffs bring negligence and strict product liability claims
to recover damages for personal injuries they say were caused by
the Lands' End uniforms. Lands' End contends that the Plaintiffs
cannot succeed on their personal injury claims because they cannot
prove that the uniforms were defective or that any defect could
have caused, or actually caused, the Plaintiffs' health problems.
In particular, Lands' End argues that the Plaintiffs lack the
expert testimony that they need to prove both the existence of a
defect and causation. Judge Peterson discusses the law that applies
to the Plaintiffs' claims, and then considers the parties'
arguments relating to summary judgment and the Plaintiffs'
experts.
A. Choice of Law
The Plaintiffs' negligence and strict product liability claims are
governed by state law. But they are citizens of 40 different
states, and their alleged injuries occurred throughout the country,
so there is a question about what state laws should apply to their
claims. The Plaintiffs say that the Court should apply Wisconsin
law to their tort claims because Wisconsin is the forum state and
Lands' End is headquartered there, but they do not evaluate whether
Wisconsin's contacts with the parties and injuries are more or less
significant than any other forum's contacts. Lands' End disagrees
that Wisconsin law should apply, but it says that it is unnecessary
to resolve choice of law at this stage because there are no
material differences among the laws of the various potential
jurisdictions that would affect the outcome of their pending
motions.
Judge Peterson concludes that it is unnecessary to resolve choice
of law at this stage. There are only two elements of product
liability law at issue in Lands' End's motion for partial summary
judgment: (1) the existence of a defect; and (2) whether the defect
caused plaintiffs' injuries. Although products liability law varies
from state to state, those two elements generally are consistent
across all jurisdictions. And the parties agree that the Plaintiffs
must show both a defect and causation to succeed on their claims.
So in evaluating Lands' End's motion for partial summary judgment,
Judge Peterson assumes that, regardless which state law applies,
=the Plaintiffs can prevail on their negligence and strict product
liability claims only by showing both: (1) that the Land's End
uniforms were defective; and (2) that the defect caused the
Plaintiffs' personal injuries.
B. Existence of a defect
Lands' End argues that the Plaintiffs have no evidence to prove
that the Lands' End uniforms worn by the Plaintiffs were defective.
In Wisconsin and many other jurisdictions, the law recognizes three
categories of product defects: manufacturing defects, design
defects, and defects based on a failure to adequately warn. The
Plaintiffs argue in their response brief that their personal
injuries were caused by chemicals and heavy metals in the uniforms,
which they breathed or absorbed into their bodies because the
garments were not properly scoured or after-washed during the
manufacturing process. Lands' End argues that the Plaintiffs need
expert testimony to prove that those characteristics in a garment
constituted a defect, and the Plaintiffs concede the point by
failing to argue otherwise.
Judge Peterson holds that the existence of a defect is a required
element of the Plaintiffs' product liability claims, and the
Plaintiffs were required to come forward with admissible evidence
to support every element on which they bear the burden of proof.
The Plaintiffs rely, essentially, on a simplistic post-hoc theory,
that because some flight attendants reported reactions after
wearing the new uniforms, the uniforms must be defective. But Rule
702 and the Daubert standard requires a more robust showing. The
Plaintiffs' experts did not address whether the Lands' End uniforms
contained a defect that caused their health problems, and the
Plaintiffs have presented no other evidence from which a reasonable
jury could conclude that a deviation in the manufacturing of the
uniforms rendered them unreasonably dangerous, that the uniform
design rendered them unreasonably dangerous, or that Lands' End
failed to provide sufficient warning regarding the dangers of the
uniforms. Therefore, the Plaintiffs do not have the necessary
evidence to support their personal injury product liability
claims.
C. Causation
Even if the Plaintiffs had presented evidence that the Lands' End
uniforms were defective, Judge Peterson finds that the Plaintiffs
have failed to present admissible evidence sufficient to prove
causation. In assessing whether the expert opinions are admissible,
the court serves as a gatekeeper to ensure that the proffered
expert testimony meets the requirements of Federal Rule of Evidence
702. It must ensure that the expert is qualified, that the expert's
opinions are based on reliable methods and reasoning, and that the
expert's opinions will assist the jury in deciding a relevant
issue.
Courts can examine the reliability of an expert's principles and
methods by looking at factors such as whether the scientific theory
or technique can be (and has been) tested; whether the theory or
technique has been subjected to peer review and publication;
whether a particular technique has a known potential rate of error;
and whether the theory or technique is generally accepted in the
relevant scientific community.
Judge Peterson holds that when these standards are applied to the
expert opinions of Freeman, Apple, and Scheinman, it is clear that
the causation opinions must be excluded.
Dr. Michael Freeman is an epidemiologist, forensic consultant, and
professional expert witness who has provided expert opinion in at
least 350 trials and 900 depositions. Most of those cases involved
traffic accidents and medical negligence claims, but Freeman also
has provided expert opinion in environmental exposure cases.
Freeman offers both general and specific causation opinions in his
report. He opines that the Lands' End uniforms were capable of
causing, and were the most likely cause of, plaintiffs' various
health problems.
Dr. Fred Apple, Ph.D, is forensic toxicologist, chemist, and
medical examiner who specializes in therapeutic drug monitoring and
forensic postmortem toxicology. Apple has no experience or
background in textile or garment testing, but Lands' End does not
challenge Apple's expertise or qualifications, so the court will
assume that he is qualified to offer the opinions that he provides.
The gist of his opinions, which are set forth in Apple's seven-page
report, are the following: (1) garment testing performed by others
shows that the uniforms were not color-fast and contained chemicals
and heavy metals; (2) according to scientific literature, some of
the chemicals and heavy-metals found in the uniforms can cause
various health problems; (3) plaintiffs suffered from various
health problems; and (4) the chemicals or heavy metals in the
uniforms caused the Plaintiffs' health problems.
Dr. Pamela Scheinman, M.D., is a board-certified dermatologist who
has taught and practiced in the field of dermatology for more than
30 years, including at Harvard Medical School, University of
Rochester School of Medicine and Dentistry, George Washington
University Medical Center, and Tufts University School of Medicine.
She has particular expertise and interest in patch testing and
allergic contact dermatitis. Scheinman opines in her report that
the allergens and toxins in the Lands' End uniforms "proximately
caused" plaintiffs' dermatological symptoms, respiratory symptoms,
ocular symptoms, alopecia, and sensitization. Scheinman's opinion
is based on her review of partial medical records for 15
Plaintiffs, positive patch testing of the uniforms from three
Plaintiffs, a portion of the garment testing results for
third-party testing agencies, and a chart compiled by the
Plaintiffs' counsel summarizing the medical injuries alleged by the
Plaintiffs. The Plaintiffs offer Scheinman's opinions to prove
general causation for all the Plaintiffs and specific causation for
the 15 Plaintiffs whose medical records Scheinman reviewed.
However, all of Scheinman's causation opinions are inadmissible.
Judge Peterson concludes that the Plaintiffs lack the required
expert evidence to establish that the new Delta uniforms were
defective. And because he is excluding the opinions of Dr. Freeman,
Dr. Apple, and Dr. Scheinman, the Plaintiffs have no admissible
evidence to prove their theory of general causation -- that the
chemicals or heavy metals in the Lands' End uniforms transferred to
the Plaintiffs at doses capable of causing the particular health
problems that they suffered. Lands' End contends that plaintiffs
cannot succeed on their personal injury claims without
demonstrating general causation, a point the Plaintiffs don't
dispute.
Judge Peterson concludes the Plaintiffs have failed to meet their
burden of proof on two essential elements of their personal injury
claims, and Lands' End is entitled to summary judgment on those
claims. He need not consider the parties' arguments regarding the
Plaintiffs' treating physician disclosures or issue preclusion for
those Plaintiffs whose claims were denied by a workers'
compensation board.
The parties will submit a joint proposed scheduling order by the
deadline set forth below addressing how the case should proceed on
the Plaintiffs' remaining claims for property damage and breach of
warranty.
IV. Conclusion
For these reasons, Judge Peterson grants the motions to exclude the
expert opinions of Fred Apple, Ph.D., Pamela Scheinman, M.D., and
Michael Freeman, Ph.D., because their opinions are not based on
reliably applied and scientifically valid methods. In light of this
ruling, he grants the Defendants' motion for summary judgment on
the Plaintiffs' personal injury claims because they have failed to
submit evidence sufficient to show that the Lands' End uniforms
were defective or that a defect in the uniforms caused their health
problems. Because the Plaintiffs' personal injury claims will be
dismissed, Judge Peterson need not address the parties' disputes
regarding issue preclusion, and denies as moot Lands' End motion to
exclude the testimony of the Plaintiffs' Rule 26(a)(2)(C) treating
physicians.
With the personal injury claims resolved, Judge Peterson asks the
parties to confer and report to the Court with a schedule for
resolving the remaining claims for property damage and breach of
warranty.
A full-text copy of the Court's July 8, 2022 Opinion & Order is
available at https://tinyurl.com/ynsyan4s from Leagle.com.
LENDINGTREE LLC: Exposes Personal Info After Data Breach, Suit Says
-------------------------------------------------------------------
CHRISTOPHER LAMIE, individually and on behalf of all others
similarly situated, Plaintiff v. LENDINGTREE, LLC, Defendant, Case
No. 3:22-cv-00307-FDW-DCK (W.D.N.C., July 11, 2022) alleges that
the Defendant lost control over individuals' highly sensitive
personal information in a data breach by cybercriminals ("Data
Breach").
According to the complaint, on February 2022, hackers exploited a
"code vulnerability" in LendingTree's system which allowed them to
bypass LendingTree's security and access information it stores on
consumers.
The Plaintiff is part of over 200,000 other consumers whose
information LendingTree compromised by employing inadequate data
security protocols. Indeed, this is at least the third data breach
LendingTree has suffered, with LendingTree failing to discover this
most recent breach until June 2022, or four months after the hack,
says the suit.
What's more, hackers have posted the information on the dark web,
bragging about the information they stole on every-day consumers.
When LendingTree finally disclosed the Data Breach in June 2022, it
did not tell consumers that their information was on the dark web
or disclose all the information that LendingTree lost in the
breach, the suit added.
LENDINGTREE, LLC provides online tools to aid consumers in their
financial decisions. The Company offers services including auto
insurance, credit cards, mortgage, refinance, home equity, credit
scores, mortgage rates, and various calculations tools. [BN]
The Plaintiff is represented by:
Joel R. Rhine, Esq.
Martin A. Ramey, Esq.
RHINE LAW FIRM, PC
1612 Military Cutoff Road, Suite 300
Wilmington, NC 28403
Telephone: (910) 772-9960
Facsimile: (910) 772-9062
Email: jrr@rhinelawfirm.com
- and -
Samuel J. Strauss, Esq.
Raina C. Borrelli, Esq.
TURKE & STRAUSS LLP
613 Williamson Street, Suite 201
Madison, WI 53703
Telephone: (608) 237-1775
Facsimile: (608) 509-4423
Email: raina@turkestrauss.com
sam@turkestrauss.com
LEVEL 3 COMMUNICATIONS: Faces Johnson FLSA Suit in M.D. Florida
---------------------------------------------------------------
THOMAS JOHNSON, on behalf of himself and all others similarly
situated, Plaintiff v. LEVEL 3 COMMUNICATIONS, LLC, Defendant, Case
No. 2:22-cv-00420 (M.D. Fla., July 12, 2022) is a class action
against the Defendant for its failure to compensate the Plaintiff
and similarly situated field technicians overtime pay for all hours
worked in excess of 40 hours in a workweek in violation of the Fair
Labor Standards Act.
Mr. Johnson has worked as a field technician in Florida from
approximately August 2007 until the present.
Level 3 Communications, LLC is a multinational telecommunications
corporation, with its principal place of business in Colorado.
[BN]
The Plaintiff is represented by:
Brandon J. Hill, Esq.
Luis A. Cabassa, Esq.
Amanda E. Heystek, Esq.
WENZEL FENTON CABASSA, P.A.
1110 N. Florida Avenue, Suite 300
Tampa, FL 33602
Telephone: (813) 224-0431
Facsimile: (813) 229-8712
E-mail: bhill@wfclaw.com
lcabassa@wfclaw.com
aheystek@wfclaw.com
gnichols@wfclaw.com
MAGELLAN HRSC: Rios Wage-and-Hour Suit Goes to E.D. California
--------------------------------------------------------------
The case styled SOFIA RIOS, individually and on behalf of all
others similarly situated v. MAGELLAN HRSC, INC. and DOES 1-50,
inclusive, Case No. 34-2022-00320568, was removed from the Superior
Court of the State of California for the County of Sacramento to
the U.S. District Court for the Eastern District of California on
July 11, 2022.
The Clerk of Court for the Eastern District of California assigned
Case No. 2:22-cv-01219-KJM-AC to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to pay all overtime wages, failure to pay
all sick time, meal period violations, failure to reimburse
necessary business expenses, wage statement violations, waiting
time penalties, and unfair competition.
Magellan HRSC, Inc. is a managed care health services company, with
its principal place of business in Columbia, Maryland. [BN]
The Defendant is represented by:
Barbara A. Blackburn, Esq.
Nathaniel H. Jenkins, Esq.
LITTLER MENDELSON, P.C.
500 Capitol Mall, Suite 2000
Sacramento, CA 95814
Telephone: (916) 830-7200
Facsimile: (916) 561-0828
E-mail: bblackburn@littler.com
njenkins@littler.com
MISSFRESH LIMITED: Faces Chen Suit Over 22% Decline of ADS Price
----------------------------------------------------------------
JUAN CHEN, on behalf of himself and all others similarly situated,
Plaintiff v. MISSFRESH LIMITED, ZHENG XU, JJUN WANG, YUAN SUN,
ZHAOHUI LI, COLLEEN A. DE VRIES, J.P. MORGAN SECURITIES LLC,
CITIGROUP GLOBAL MARKETS INC., CHINA INTERNATIONAL CAPITAL
CORPORATION HONG KONG SECURITIES LIMITED, CHINA RENAISSANCE
SECURITIES (HONG KONG) LIMITED, HAITONG INTERNATIONAL SECURITIES
COMPANY LIMITED, CMB INTERNATIONAL CAPITAL LIMITED, AMTD GLOBAL
MARKETS LIMITED, ICBC INTERNATIONAL SECURITIES LIMITED, NEEDHAM &
COMPANY, LLC, CHINA MERCHANTS SECURITIES (HK) CO., LIMITED, ABCI
SECURITIES COMPANY LIMITED, GF SECURITIES (HONG KONG) BROKERAGE
LIMITED, FUTU INC., TIGER BROKERS (NZ) LIMITED, and COGENCY GLOBAL,
INC., Defendants, Case No. 1:22-cv-04065 (E.D.N.Y., July 12, 2022)
is a class action against the Defendants for violations of Sections
11, 12(a)(2) and 15 of the Securities Act of 1933.
According to the complaint, the Defendants made materially false
and/or misleading statements with the U.S. Securities and Exchange
Commission in connection with Missfresh's June 2021 initial public
offering (IPO). Specifically, the Registration Statement failed to
disclose that: (1) Missfresh provided false financial figures in
its Registration Statement; (2) Missfresh would need to amend its
financial figures; (3) Missfresh, among other things, had lesser
net revenues for the quarter ended March 31, 2021; and (4) as a
result, the Defendants' public statements were materially false and
misleading at all relevant times and negligently prepared, says the
suit.
When the truth emerged, Missfresh American Depositary Shares (ADSs)
fell 13 percent to close at $0.448 per ADS on May 2, 2021, the next
trading day, damaging investors. Missfresh ADSs fell 9 percent over
the next two trading days to close at $0.167 per ADS on May 26,
2021, further damaging investors, the suit added.
Missfresh Limited is a company that offers fresh produce and
fast-moving consumer goods, headquartered in Beijing, China.
J.P. Morgan Securities LLC is an investment banking firm based in
New York, New York.
Citigroup Global Markets Inc. is an investment banking firm based
in New York, New York.
China International Capital Corporation Hong Kong Securities
Limited is an investment banking firm based in Hong Kong.
China Renaissance Securities (Hong Kong) Limited is an investment
banking firm based in Hong Kong.
Haitong International Securities Company Limited is an investment
banking firm based in Hong Kong.
CMB International Capital Limited is an investment banking firm
based in Hong Kong.
AMTD Global Markets Limited is an investment banking firm based in
Hong Kong.
ICBC International Securities Limited is an investment banking firm
based in Hong Kong.
Needham & Company, LLC is an investment banking firm based in New
York, New York.
China Merchants Securities (HK) Co., Limited is an investment
banking firm based in Hong Kong.
ABCI Securities Company Limited is an investment banking firm based
in Hong Kong.
GF Securities (Hong Kong) Brokerage Limited is an investment
banking firm based in Hong Kong.
Futu Inc. is an investment banking firm based in Palo Alto,
California.
Tiger Brokers (NZ) Limited is an investment banking firm based in
Auckland, New Zealand.
Cogency Global Inc. is a provider of statutory representation and
corporate services based in New York, New York. [BN]
The Plaintiff is represented by:
Phillip Kim, Esq.
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Ave., 40th Floor
New York, NY 10016
Telephone: (212) 686-1060
Facsimile: (212) 202-3827
E-mail: pkim@rosenlegal.com
lrosen@rosenlegal.com
MOLECULAR PARTNERS: Freudiger Sues Over 59.06% Drop of ADS Price
----------------------------------------------------------------
MARIANNE S. FREUDIGER, on behalf of herself and all others
similarly situated, Plaintiff v. MOLECULAR PARTNERS AG, PATRICK
AMSTUTZ, ANDREAS EMMENEGGER, WILLIAM M. BURNS, AGNETE FREDRIKSEN,
STEVEN H. HOLTZMAN, SANDIP KAPADIA, VITO J. PALOMBELLA, MICHAEL
VASCONCELLES, and DOMINK HOCHLI, Defendants, Case No. 1:22-cv-05925
(S.D.N.Y., July 12, 2022) is a class action against the Defendants
for violations of the Securities Act of 1933 and the Securities
Exchange Act of 1934.
According to the complaint, the Defendants made materially false
and/or misleading statements with the U.S. Securities and Exchange
Commission in connection with Molecular Partners' June 2021 initial
public offering (IPO) and trade of the company's securities between
June 16, 2021 and April 26, 2022. Specifically, the Defendants
failed to disclose that: (i) ensovibep, the company's product
candidate to treat COVID-19, was less effective than the Defendants
had led investors to believe; (ii) accordingly, the U.S. Food and
Drug Administration (FDA) was reasonably likely to require an
additional Phase 3 study of ensovibep before granting the drug
Emergency Use Authorization (EUA); (iii) waning global rates of
COVID-19 significantly reduced the company's chances of securing
EUA for ensovibep; (iv) as a product candidate, MP0310 was less
attractive to Amgen than the Defendants had led investors to
believe; (v) accordingly, there was a significant likelihood that
Amgen would return global rights of MP0310 to Molecular Partners;
(vi) as a result of all the foregoing, the clinical and commercial
prospects of ensovibep and MP0310 were overstated; and (vii) as a
result, the IPO documents and the Defendants' public statements
throughout the Class Period were materially false and/or misleading
and failed to state information required to be stated therein, says
the suit.
When the truth emerged, Molecular Partners' American Depositary
Share (ADS) price fell $5.19 per ADS, or 37.37 percent, to close at
$8.70 per ADS on April 27, 2022, a total decline of $7.87 per ADS,
or 47.5 percent, over two consecutive trading days, and 59.06
percent below the $21.25 per ADS IPO price, damaging investors, the
suit added.
Molecular Partners AG is a clinical-stage biopharmaceutical
company, with its principal executive offices located in
Zurich-Schlieren, Switzerland. [BN]
The Plaintiff is represented by:
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
James M. LoPiano, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
E-mail: jalieberman@pomlaw.com
ahood@pomlaw.com
jlopiano@pomlaw.com
N.C.J. RESTAURANT: Roche Sues Over Failure to Pay Overtime Wages
----------------------------------------------------------------
The case, ALBERTO ROCHE, and other similarly situated individuals,
Plaintiff v. N.C.J. RESTAURANT GROUP LLC, d/b/a EATAPAS, CHRISTIAN
JACQUES, and JADER OLIVEIRA, individually, Defendants, Case No.
0:22-cv-61305-XXXX (S.D. Fla., July 12, 2022) arises from the
Defendants' alleged willful violations of the Fair Labor Standards
Act.
The Plaintiff was employed by the Defendants as a non-exempted
full-time restaurant employee performing duties as a cook and line
cook approximately from September 30, 2020 to May 7, 2022.
According to the complaint, the Plaintiff was paid the same salary
of $2,160.00 weekly regardless of the number of hours he worked in
a week. Despite consistently working more than 40 hours per week,
the Defendants did not pay him overtime compensation at the
applicable rate in accordance with the law, says the suit.
The Plaintiff brings this complaint on behalf of himself and all
other similarly situated restaurant employees to recover actual
damages for unpaid overtime compensation, as well as liquidated
damages, reasonable attorneys' fees and litigation costs, and other
relief as the Court deems equitable and just and/or available
pursuant to the FLSA.
N.C.J. Restaurant Group LLC operates a Spanish restaurant d/b/a
Eatapas. Christian Jacques and Jader Oliveira are the co-owners,
partners, and managers of the Corporate Defendant. [BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Tel: (305) 446-1500
Fax: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
OCCIDENTAL PETROLEUM: Appeals Class Cert. Ruling in Deselms Suit
----------------------------------------------------------------
OCCIDENTAL PETROLEUM CORPORATION, et al., filed an appeal from a
court ruling granting in part and denying in part a motion for
class certification in the lawsuit entitled ANITA C. DESELMS, et
al., v. OCCIDENTAL PETROLEUM CORPORATION, et al., Case No.
2:19-cv-00243-NDF, in the United States District Court for the
District of Wyoming at Cheyenne.
On November 25, 2019, the Plaintiffs, mineral owners in Laramie
County, Wyoming, filed this complaint alleging that Defendants'
leasing practices prevented them from leasing their minerals and
forced them to accept lower royalty rates and lease bonuses than
they would have otherwise received.
On August 27, 2021, the Plaintiffs filed a second amended complaint
against the Defendants. Through this second amended complaint, the
Plaintiffs brought an antitrust case which seeks to establish a
class to compensate all similarly situated persons for injury
caused by the Defendants' allegedly anticompetitive conduct.
On April 7, 2022, the Plaintiffs also filed a second motion to
certify class and a renewed motion for class certification.
As reported in the Class Action Reporter on May 18, 2022, the Hon.
Judge Nanay D. Freudenthal granted in part and denied in part the
Plaintiff's motion.
Specifically, Judge Freudenthal's April 26, 2022 ruling:
1. granted in part and denied in part the Plaintiffs'
Renewed Motion to Certify Class:
-- With the Court's revisions to Plaintiffs' theory of
antitrust liability and to the definition of"Class
Period," Plaintiffs' Motion is granted under Fed. R.
Civ. P Rule 23(c)(4) with respect to the Federal and
State liability issues (antitrust violation and
antitrust impact) against Occidental Petroleum
Corporation, Anadarko Petroleum Corporation, Anadarko
E&P Onshore LLC, Anadarko Land Corp., Anadarko Oil &
Gas 5 LLC;
2. appointed the Plaintiffs Anita C. Deselms, John C.
Ekiund, Jr., Justin W. and Brandi J. Miller, Ron Rabou,
and Russell I. Williams, Jr. as class representatives;
3. appointed Robert P. Schuster of Robert P. Schuster PC as
lead class counsel; and
4. denied without prejudice the Plaintiffs' renewed motion
to certify class.
The appellate case is captioned as Black, et al. v. Occidental
Petroleum, et al., Case No. 22-8040, in the United States Court of
Appeals for the Tenth Circuit, filed on July 1, 2022.[BN]
Defendants-Appellants OCCIDENTAL PETROLEUM CORPORATION, et al., are
represented by:
Katherine B. Forrest, Esq.
Benjamin Gruenstein, Esq.
Samantha Hall, Esq.
Benjamin M. Wylly, Esq.
CRAVATH, SWAINE & MOORE
825 Eighth Avenue
New York, NY 10019-7475
Telephone: (212) 474-1000
Plaintiffs-Appellees ANITA C. DESELMS, as Trustee of the Anita C.
Deselms living trust and for all similary situated persons, et al.,
are represented by:
Cody Lynn Balzer, Esq.
BALZER LAW FIRM
1302 Cleveland Avenue
Loveland, CO 80537
Telephone: (970) 203-1515
- and -
Bradley L. Booke, Esq.
BRADLEY L. BOOKE LAW OFFICE
P.O. Box 13160
Jackson, WY 83014
Telephone: (702) 241-1631
- and -
Justin A. Daraie, Esq.
LONG REIMER WINEGAR BEPPLER LLP
P.O. Box 3070
Jackson, WY 83001
Telephone: (307) 732-1908
- and -
J. N. Murdock, Esq.
MURDOCK LAW FIRM
123 West First Street, Suite 570
Casper, WY 82601
Telephone: (307) 235-0480
- and -
Adelaide Myers, Esq.
Robert P. Schuster, Esq.
ROBERT P. SCHUSTER PC
250 Veronica Lane, Suite 204
P.O. Box 13160
Jackson, WY 83002
Telephone: (307) 732-7800
OSI INDUSTRIES: Mendoza Labor Suit Removed to C.D. California
-------------------------------------------------------------
The case styled MICHAEL THOMAS MENDOZA and ROSA VALADEZ GARCIA,
individually and on behalf of all others similarly situated v. OSI
INDUSTRIES, LLC and DOES 1 through 10, inclusive, Case No.
CVRI2201736, was removed from the Superior Court of the State of
California for the County of Riverside to the U.S. District Court
for the Central District of California on July 11, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 5:22-cv-01202 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to pay minimum and straight time wages,
failure to pay overtime wages, failure to provide meal periods,
failure to authorize and permit rest periods, failure to timely pay
final wages at termination, failure to provide accurate itemized
wage statements, and unfair business practices.
OSI Industries, LLC is a company that manufactures and supplies
food for food service and retail markets, headquartered in
Illinois. [BN]
The Defendant is represented by:
Arthur K. Cunningham, Esq.
Kevin M. Erwin, Esq.
Semarnpreet Kaur, Esq.
JACKSON LEWIS P.C.
200 Spectrum Center Dr., Suite 500
Irvine, CA 92618
Telephone: (949) 885-1360
Facsimile: (949) 885-1380
E-mail: Arthur.Cunningham@jacksonlewis.com
Kevin.Erwin@jacksonlewis.com
Semarnpreet.Kaur@jacksonlewis.com
SALLIE MAE: E.D. New York Grants in Part Homaidan's Bid for TRO
---------------------------------------------------------------
In the cases, In re: Hilal Khalil Homaidan, Chapter 7, aka Helal K
Homaidan, Debtor. In re: Reeham Youssef, Chapter 7, aka Reeham
Navarro Youssef, aka Reeham N. Youssef, Debtor. Hilal Khalil
Homaidan on behalf of himself and all others similarly situated,
and Reeham Youssef, Plaintiffs v. Sallie Mae, Inc., Navient
Solutions, LLC, Navient Credit Finance Corporation, Defendants,
Case Nos. 08-48275-ess, 13-46495-ess, Adv. Pro. No. 17-1085-ess
(E.D.N.Y.), Judge Elizabeth S. Stong of the U.S. Bankruptcy Court
for the Eastern District of New York grants in part the Plaintiffs'
motion for a temporary restraining order.
I. Introduction
Before the Court is the motion for a temporary restraining order of
Plaintiffs Hilal Khalil Homaidan and Reeham Youssef. The Plaintiffs
seek, on behalf of themselves and all other similarly situated
within a putative class, a temporary restraining order immediately
to enjoin Defendants Navient Solutions, LLC and Navient Credit
Finance Corp. (together, "Navient") from continuing their
collection efforts on certain loans held by the Plaintiffs and the
members of the putative class (the "TRO Motion"). The Plaintiffs
seek this relief on grounds that these private student loans are
within the scope of their Chapter 7 bankruptcy discharges, and that
Navient has disregarded that fact as it has continued its
collection efforts for many years, including for the five years
that this action has been pending.
In this adversary proceeding, the Plaintiffs allege, as to
themselves and the putative class, that they attended or intended
to attend Title IV institutions and received private loans owned or
serviced by the Defendants that exceeded the cost of attendance at
such institutions as defined by Internal Revenue Code Section
221(d), that they obtained bankruptcy discharges after Jan. 1,
2005, that they have not reaffirmed their loans, and that they have
been, and may continue to be, subjected to the Defendants' actions
to collect on these loans.
Specifically, the Plaintiffs argue that their private student loans
were discharged in their Chapter 7 bankruptcy cases because these
loans do not meet the requirements to be nondischargeable under
Bankruptcy Code Section 523(a)(8)(B) -- that is, their loans are
not "qualified education loans" pursuant to Internal Revenue Code
Section 221(d)(1). Namely, the Plaintiffs assert their loans do not
meet Internal Revenue Code Section 221(d)'s requirement that a loan
must not exceed the cost of attendance at a Title IV institution to
be a "qualified education loan." As such, they assert, the
Defendants' continuing collection efforts on their outstanding
private student loans that were discharged violate the statutory
bankruptcy discharge contained in Bankruptcy Code Section
524(a)(2). And at this stage in these proceedings, the Plaintiffs
argue, the requirements for interim injunctive relief in favor of
the putative nationwide class have been met, and these collection
efforts should be stopped.
Navient opposes the TRO Motion, on several grounds. As a threshold
matter, they argue that the only pathway to a remedy for a
violation of the bankruptcy discharge is a proceeding or motion for
contempt. Navient states that this Court lacks the jurisdiction to
address violations of discharge orders entered by other bankruptcy
courts. Navient also argues that certain putative class members
lack Article III standing to seek relief against Navient, as they
have suffered no harm.
In addition, Navient contends that a temporary restraining order is
not warranted here, as the Plaintiffs cannot establish a likelihood
of success on the merits because, among other reasons, each
plaintiff certified on their loan documents that their loans were
within the cost of attendance at a Title IV institution. Further,
Navient argues that irreparable harm is not present here, as the
Plaintiffs substantially delayed in seeking this relief. And
finally, Navient argues that the public interest weighs against
granting the TRO Motion, as injunctive relief may harm certain
members of the putative class.
For these reasons, among others, Navient argues that the Plaintiffs
cannot meet their burden, and that the TRO Motion should be
denied.
II. Background
On Dec. 4, 2008, Hilal Khalil Homaidan, aka Helal K. Homaidan,
filed a petition for relief under Chapter 7 of the Bankruptcy Code,
Case No. 08-48275. On Dec. 19, 2008, Mr. Homaidan filed his
schedules and statements, and on March 9, 2009, he filed certain
amended schedules. In re Homaidan, Case No. 08-48275, ECF Nos. 11,
19. In his Schedule F, "Creditors Holding Unsecured Nonpriority
Claims," he listed "Tuition Answer" loans owed to Sallie Mae in the
amounts of $7,983.19 and $8,190.11. On Jan. 15, 2009, the Chapter
7 Trustee filed a "no-asset" report stating that "yhe estate has no
non-exempt property to distribute." On April 9, 2009, the Court
entered an order discharging Mr. Homaidan, and on March 5, 2010,
his bankruptcy case was closed.
On April 14, 2017, Mr. Homaidan moved to reopen his bankruptcy case
to obtain a determination of the dischargeability of certain of his
student loans, and on May 26, 2017, the Court entered an order
reopening the case.
On Oct. 29, 2013, Reeham Youssef, aka Reeham Navarro Youssef, aka
Reeham N Youssef, filed a petition for relief under Chapter 7 of
the Bankruptcy Code, Case No. 13-46495. On Oct. 29, 2013, Ms.
Youssef filed her schedules and statements. In her Schedule F,
"Creditors Holding Unsecured Nonpriority Claims," she listed
"Student Loans" owed to Sallie Mae in the amounts of $9,055,
$13,413, $6,415, $35,580, $23,596, $4,095, $16,275 and $29,493. On
Dec. 13, 2013, the Chapter 7 Trustee filed a "no-asset" report
stating that "there is no property available for distribution from
the estate over and above that exempted by law." On Feb. 6, 2014,
the Court entered an order discharging Ms. Youssef, and on that
same day, her bankruptcy case was closed. I
On Oct. 1, 2019, Ms. Youssef moved to reopen her bankruptcy case to
obtain a determination of the dischargeability of certain of her
student loans, and on Dec. 4, 2019, the Court entered an order
reopening the case.
The Plaintiffs state that Mr. Homaidan enrolled in Emerson College
in the Fall of 2006. On Sep. 12, 2006, Mr. Homaidan entered into a
"Tuition Answer" loan with Navient in the amount of $6,177 and a
second loan for $6,390 on Oct. 6, 2006. The Plaintiffs state that
both loans were made directly to Mr. Homaidan and did not involve
Emerson College's financial aid office. The Plaintiffs also assert
that these loans were not made for qualified educational expenses,
and that the Defendants made no effort to obtain certification from
Emerson College that either loan was within the school's cost of
attendance, or even that Mr. Homaidan was a full-time or part-time
student attending a qualified academic institution. And the
Plaintiffs argue that the Defendants did not determine that either
of the loans made to Mr. Homaidan was a "qualified education loan,"
as that term is defined in Bankruptcy Code Section 523(a)(8)(B),
before disbursing these funds.
The Plaintiffs also state that on Dec. 4, 2008, Mr. Homaidan sought
relief under Title 11 by filing a Chapter 7 bankruptcy case in the
Court, and that Mr. Homaidan scheduled his private Tuition Answer
Loans on Schedule F of his bankruptcy petition. On April 9, 2009,
the Court entered a discharge of all of Mr. Homaidan's properly
scheduled dischargeable pre-petition debt, and the Defendants were
notified by the Court of the discharge.
And the Plaintiffs state that, despite the discharge of Mr.
Homaidan's private Tuition Answer Loans that exceed the cost of
attendance, the Defendants advised Mr. Homaidan that these loans
were not discharged, and thereafter, engaged the services of
various collection firms to attempt to collect on this discharged
debt in violation of Mr. Homaidan's bankruptcy discharge and the
Bankruptcy Code.
As to Ms. Youssef, the Plaintiffs state that from 2005 to 2008, she
was a student at Queens College of the City University of New York.
They state that the cost of attendance for an in-state student
living off campus at Queens College was $16,816 for the 2005-06
academic year; $17,293 for the 2006-07 academic year; and $17,725
for the 2007-08 academic year. The Plaintiffs also state that,
during the 2006-07 academic year, Ms. Youssef received a
school-certified loan of $6,000 and four private Tuition Answer
Loans from Sallie Mae totaling $31,850. They state that in the
following 2007-08 academic year, Ms. Youssef received two private
Tuition Answer Loans totaling $24,150. And they state that most or
all of the private Tuition Answer Loans that Ms. Youssef received
exceeded the cost of attendance and, therefore, here again, these
loans did not meet the criteria to be nondischargeable qualified
education loans as that term is defined in Bankruptcy Code Section
523(a)(8)(B).
The Plaintiffs also state that on Oct. 29, 2013, Ms. Youssef sought
relief under Title 11 by filing a Chapter 7 bankruptcy case in the
Court. They assert that Ms. Youssef scheduled her private Tuition
Answer Loans on Schedule F of her bankruptcy petition. On Feb. 6,
2014, the Court entered a discharge of all of Ms. Youssef's
properly scheduled dischargeable pre-petition debt, and the
Defendants were notified by the Court of the discharge.
And again, the Plaintiffs state that instead of treating Ms.
Youssef's private Tuition Answer Loans as discharged, the
Defendants advised Ms. Youssef that these loans were not
discharged, demanded repayment from Ms. Youssef on those loans, and
resumed collection on the loans even though they had been
discharged. Like Mr. Homaidan, Ms. Youssef seeks a declaration that
her private Tuition Answer Loans "in excess of" the cost of
attendance were discharged in her bankruptcy case, an injunction
prohibiting the continued collection of the loans, and damages,
including restitution of all funds obtained by the Defendants from
their unlawful collection efforts on these discharged debts, and
attorney's fees and costs.
On June 23, 2017, Mr. Homaidan commenced this adversary proceeding
as a putative class action, on behalf of himself and others
similarly situated, by filing a complaint against SLM Corp., Sallie
Mae, Inc., Navient Solutions, LLC, and Navient Credit Finance Corp.
As to himself, Mr. Homaidan seeks a determination that certain
debts that he incurred as a student are not nondischargeable
student loan debts under Bankruptcy Code Section 523(a)(8)(B), and
an award of damages, including attorneys' fees and costs, for the
Defendants' willful violations of the bankruptcy discharge order
entered in his case. And as to the class, he seeks the same the
relief.
The Plaintiffs, on behalf of themselves and all others similarly
situated (the "Putative Class Members"), seek a declaratory
judgment, injunctive relief, and damages arising from Sallie Mae
and Navient's alleged "pattern and practice" of violating the
discharge injunction provided by Bankruptcy Code Section 542(a)(2).
The Plaintiffs allege that the "Defendants represented to student
debtors that the Bankruptcy Code prohibited discharge of any loan
made to any person for any educational purpose."
The Plaintiffs request that the Court declares that the Plaintiffs
and the Class Members' debts were discharged upon the entry of the
applicable statutory bankruptcy discharge injunctions, because they
are not student loans excluded from discharge under Bankruptcy Code
Section 523(a)(8). They seek permanent injunctive relief
prohibiting the Defendants from continuing to seek collection on
the Plaintiffs and Class Members' discharged debts. The Plaintiffs
also request that since the Defendants were notified of the
Plaintiffs and Class Members' discharge orders pursuant to
Bankruptcy Rule 4004(g), and still sought to collect on these debts
by use of "dunning letters, phone calls, negative reports made to
credit bureaus, failure to update credit reports, and commencing or
continuing legal action to recover these debts in violation of
Bankruptcy Code Section 524," the Court should cite the Defendants
for civil contempt for their willful violations of the Discharge
Order, and order them to pay damages in an amount to be determined
at trial pursuant to Bankruptcy Code Sections 524 and 105, and also
to pay his attorneys' fees and costs.
As stated in the Amended Complaint, the Plaintiffs seek to maintain
the action on behalf of themselves and as representatives of
Putative Class Members who: obtained private Tuition Answer Loans
in amounts that exceeded the Cost of Attendance; were never issued
or designated to be issued 1098-E tax forms to deduct the interest
payments from their federal tax returns; have never reaffirmed any
pre-petition Tuition Answer loan; and have nonetheless been
subjected to the Defendants' attempts to induce payment on
discharged debts and have or have not repaid these loans since
bankruptcy.
The Plaintiffs argue that it is undisputed that they and every
member of the putative class obtained discharges in bankruptcy,
protecting them from the collection of all properly-scheduled
dischargeable debts. They also state that Defendants are violating
those individual discharge orders by continuing to collect on these
discharged debts. And in all events, they argue that Navient's
unwarranted collection activities give rise to irreparable harm,
because the act of repeatedly attempting to collect a discharged
debt in and of itself creates irreparable injury. The Plaintiffs
conclude that in light of the Defendants' "flagrant disregard" of
the Putative Class Members' statutory bankruptcy discharge
injunctions, and their continued collection efforts of these
discharged debts, the Putative Class Members will suffer
irreparable harm if a temporary restraining order is not entered.
Navient opposes any form of temporary injunctive relief. At the
outset, Navient responds that the Plaintiffs seek (i) an
unauthorized temporary restraining order of indefinite duration, of
nationwide scope, and for an as-yet uncertified class; (ii) an
unauthorized burden-shifting temporary restraining order; (iii) an
unauthorized temporary restraining order in favor of uninjured
parties with no Article III standing; (iv) an unauthorized
temporary restraining order with no proof of any emergency or
exigency; (v) an unauthorized temporary restraining order with no
showing of a likelihood of success on the merits; and (vi) an
unauthorized temporary restraining order that would fail for
vagueness.
In their Reply, the Plaintiffs, among other things, point out that
the proposed class is clearly defined in their Class Certification
Motion. They state that the class is defined as follows:
Individuals who attended or intended to attend Title IV
institutions and received private loans owned or served by
Defendants, which exceeded the costs of attendance at such
institutions as defined in 26 U.S.C. Section 221(d); who obtained
bankruptcy discharges after Jan. 1, 2005; who were subsequently
subjected to the Defendants' acts to collect on the loans; and who
have not reaffirmed their loans. The Plaintiffs assert that this
class definition is clear, definite, and based upon objective
criteria, including the designation that the scope of the class is
limited to individuals with "private" loans, excluding loans that
involve governmental or non-profit entities.
On May 25, 2022, the Court held a hearing and oral argument on the
Plaintiffs' TRO Motion at which the Plaintiffs and Navient, each by
counsel, appeared and were heard. The Plaintiffs and Navient set
forth their arguments at length, and responded to extensive
questions from the Court.
III. Discussion
The instant motion places several questions before the Court. At
the outset, Navient opposes all of the relief sought by the
Plaintiffs and the Putative Class members on grounds, in substance,
that the temporary restraining order that is sought is
"unauthorized." If that is so, then it should not be necessary to
proceed further, and the Court begins with that question.
Next, the Court considers whether the Plaintiffs have shown that
they have satisfied each of the elements necessary to be entitled
to a temporary restraining order. A party seeking this relief must
demonstrate a likelihood of success on the merits or "sufficiently
serious questions going to the merits to make them a fair ground
for litigation and a balance of the hardships tipping decidedly in
the plaintiff's favor," a likelihood of "irreparable injury in the
absence of an injunction," that "the balance of hardships tips in
the plaintiff's favor," and that the "public interest would not be
disserved" by the issuance of an injunction. The Court addresses
each of these elements in turn.
But that is not the end of the Court's inquiry. The Plaintiffs seek
this relief on behalf of a nationwide class of Putative Class
Members. Navient asserts that any relief that this Court may enter
must be limited to Putative Class Members who received a bankruptcy
discharge in this District, because only the court that enters an
injunction -- including the statutory bankruptcy discharge
injunction -- is empowered to enforce it. Viewed another way,
Navient argues that relief for an asserted violation of a debtor's
discharge may be sought only in the court or District where that
discharge was entered. So, the Court next considers whether a
temporary restraining order may be entered on behalf of the entire
putative class.
And finally, the Plaintiffs seek this relief not only on behalf of
Putative Class Members who, like Mr. Homaidan and Ms. Youssef,
entered into private Tuition Answer Loans that exceed the cost of
attendance -- as set forth in the Amended Complaint -- but also on
behalf of a larger group, encompassing student borrowers who
entered into other private loans that exceed the cost of attendance
-- as set forth in the Class Certification Motion. Navient argues
that the shifting and expanding scope of the Plaintiffs' request
for relief goes too far, and should not be allowed. And lastly, the
Court takes up this question.
Judge Stong has addressed several questions. As described in her
Memorandum Decision, she disagrees that the Plaintiffs seek, on
behalf of themselves and the Putative Class Members, an
"unauthorized" temporary restraining order. This is because, among
other reasons, the Plaintiffs limit their request for relief to
those individuals with Article III standing, and do not seek
temporary injunctive relief on behalf of borrowers whose private
Tuition Answer Loans do not exceed the cost of attendance, or who
no longer have any outstanding any balance to be paid. The
Plaintiffs also do not seek temporary injunctive relief of
indefinite duration, or an order that would fail for vagueness.
Next, Judge Stong is satisfied that each of the criteria for the
entry of temporary injunctive relief has been met. That is, the
Plaintiffs have shown a likelihood of success on the merits of
their statutory bankruptcy discharge violation claims against
Navient, a likelihood of irreparable injury in the absence of
relief, that the balance of hardships tips in their favor, and that
the public interest would not be disserved by the entry of a
temporary restraining order.
And finally, Judge Stong is persuaded that the Plaintiffs have
shown that they are entitled to relief on behalf of a nationwide
class of Putative Class Members, not just those class members who
received a bankruptcy discharge in this District. At the same time,
she is not persuaded that -- at this stage in these proceedings --
it is appropriate to extend that relief beyond the Plaintiffs and
Putative Class Members as described in the Amended Complaint. That
is, she concludes that temporary injunctive relief is warranted to
direct Navient to cease its collection efforts on Tuition Answer
Loans that exceed the cost of attendance from Ms. Youssef and those
Putative Class Members whose loans have an outstanding balance, as
the class is described in the Amended Complaint. Judge Stong
declines the invitation to expand this relief -- at this time -- to
the larger group of those Putative Class Members encompassing
student borrowers who entered into other private loans that exceed
the cost of attendance, as the class is described in the Class
Certification Motion.
IV. Conclusion
For the reasons she stated, and based on the entire record, Judge
Stong grants in part the Plaintiffs' Motion for a Temporary
Restraining Order. Navient is restrained and enjoined from taking
any acts to collect on Tuition Answer Loans held by the Plaintiffs
and the Putative Class Members, as the class is described in the
Amended Complaint, that exceed the cost of attendance as defined by
Internal Revenue Code Section 221(d), and that have an outstanding
balance subject to collection. In order to permit Navient
reasonable and sufficient time to implement compliance measures,
Navient will have sixty days to comply with this direction.
An order in accordance with the Memorandum Decision is entered
simultaneously therewith.
A full-text copy of the Court's July 8, 2022 Memorandum Decision is
available at https://tinyurl.com/mtr8xndn from Leagle.com.
George F. Carpinello, Esq. -- gcarpinello@bsfllp.com -- Adam Shaw,
Esq. -- ashaw@bsfllp.com -- Robert C Tietjen, Esq. --
rtietjen@bsfllp.com -- Boies Schiller Flexner LLP, in Albany, New
York, Attorneys for the Plaintiffs.
Thomas M. Farrell, Esq. -- tfarrell@mcguirewoods.com -- McGuire
Woods LLP, in Houston, Texas, Attorneys for the Defendants.
Jason W. Burge, Esq. -- jburge@fishmanhaygood.com -- Kathryn J.
Johnson, Esq., Fishman Haygood LLP, in New Orleans, Louisiana,
Attorneys for the Plaintiffs.
Lynn E. Swanson, Esq. -- lswanson@jonesswanson.com -- Peter N.
Freiberg, Esq., Jones, Swanson, Huddell & Garrison, LLC, in New
Orleans, Louisiana, Attorneys for the Plaintiffs.
Shawn R. Fox, Esq. -- sfox@mcguirewoods.com -- Joseph A. Florczak,
Esq., Dion W. Hayes, Esq., K. Elizabeth Sieg, Esq., McGuireWoods
LLP, in New York City, Attorneys for the Defendants.
SOCLEAN INC: Benzon Sues Over Mislabeled CPAP Sanitizing Machines
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CHRISTINE BENSON, individually and on behalf of all others
similarly situated, Plaintiff v. SOCLEAN, INC., Defendant, Case No.
1:22-cv-03580 (N.D., Ill., July 11, 2022) is an action alleging
that the Defendant concealed and omitted material information on
the presence and risk of ozone exposure from the SoClean 2 CPAP
Sanitizing Machine, the SoClean 2 Go CPAP Sanitizing machine, and
their predecessor devices (collectively "the SoClean devices").
According to the complaint, SoClean manufactured and marketed
devices used to clean continuous positive airway pressure ("CPAP")
machines. SoClean concealed and omitted material information on the
presence and risk of ozone exposure from the SoClean 2 CPAP
Sanitizing Machine, the SoClean 2 Go CPAP Sanitizing machine, and
their predecessor devices.
The SoClean devices work by generating ozone to sterilize and
deodorize CPAP machines. Ozone (O3) is an unstable toxic gas with a
pungent characteristic odor that can kill bacteria and viruses.
SoClean's marketing materials fail to disclose that its devices
emit ozone, which is a longstanding requirement of federal law.
Instead, SoClean falsely represents that its devices use "activated
oxygen" to clean CPAP machines. SoClean markets the devices as
"safe" and "healthy," which is false give that they generate toxic
ozone gas at levels that substantially exceed federal regulations.
SoClean falsely represents that its devices use "no water or
chemicals" or "no harsh chemicals" to clean CPAP machines, despite
using ozone gas – a harsh chemical that causes respiratory
problems in humans, the suit alleges.
SOCLEAN, INC. manufactures cleaning devices. The Company produces
automated CPAP cleaners and sanitizers which improves health
outcomes and quality of life for those suffering from obstructive
sleep apnea and other sleeping disorders.[BN]
The Plaintiff is represented by:
Gary M. Klinger, Esq.
MILBERG COLEMAN BRYSON
PHILLIPS GROSSMAN, PLLC
227 Monroe Street, Suite 2100
Chicago, IL 60606
Telephone: (866) 252-0878
Email: gklinger@milberg.com
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Ruth Anne French-Hodson, Esq.
Sarah T. Bradshaw, Esq.
SHARP LAW FIRM
4820 W. 75th St.
Prairie Village, KS 66208
Telephone: (913) 901-0505
Email: rafrenchhodson@midwest-law.com
sbradshaw@midwest-law.com
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Gary E. Mason, Esq.
Danielle L. Perry, Esq.
MASON LLP
5101 Wisconsin Ave., Suite 305
Washington, DC 20016
Telephone: (202) 429-2290
Email: gmason@masonllp.com
dperry@masonllp.com
SOUTHERN MILLING: Crawford Sues Over Unpaid OT for Production Staff
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MELISSA D. CRAWFORD, on behalf of herself and all others similarly
situated, Plaintiff v. SOUTHERN MILLING & LUMBER, INC., Defendant,
Case No. 8:22-cv-01573 (M.D. Fla., July 12, 2022) is a class action
against the Defendant for its failure to compensate the Plaintiff
and similarly situated production workers overtime pay for all
hours worked in excess of 40 hours in a workweek in violation of
the Fair Labor Standards Act.
Ms. Crawford worked for the Defendant as a production worker at
1508 George Jenkins Blvd., Lakeland, Florida from approximately May
30, 2018 until May 13, 2022.
Southern Milling & Lumber, Inc. is a milling and lumber company,
with its place of business in Polk County, Florida. [BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
VERIFIED NUTRITION: Has Made Unsolicited Calls, Amargos Alleges
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ROGER AMARGOS, individually and on behalf of all others similarly
situated, Plaintiff v. VERIFIED NUTRITION, LLC d/b/a PROSTAGENIX,
Defendant, Case No. 1:22-cv-22111-XXXX (S.D. Fla., June 11, 2022)
seeks to stop the Defendants' practice of making unsolicited
calls.
VERIFIED NUTRITION, LLC d/b/a PROSTAGENIX is a men's health company
that offers a variety of supplements and products. [BN]
The Plaintiff is represented by:
Andrew J. Shamis, Esq.
Garrett O. Berg, Esq.
SHAMIS & GENTILE P.A.
14 NE 1st Ave., Suite 705
Miami, FL 33132
Telephone: (305) 479-2299
Email: ashamis@shamisgentile.com
gberg@shamisgentile.com
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Scott Edelsberg, Esq.
Christopher Gold, Esq.
EDELSBERG LAW, P.A.
20900 NE 30th Ave., Suite 417
Aventura, FL 33180
Telephone: (786) 289-9471
Facsimile: (786) 623-0915
Email: scott@edelsberglaw.com
chris@edelsberglaw.com
WATCH GUARD: Fails to Properly Pay Security Guards, Joseph Claims
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ROBERTO JOSEPH, on behalf of himself and all others similarly
situated, Plaintiff v. WATCH GUARD 24/7 LLC d/b/a WATCH GUARD 24/7,
JOHN RAFFERTY, and MICHELE RAFFERTY, Defendants, Case No.
1:22-cv-05935 (S.D.N.Y., July 12, 2022) is a class action against
the Defendants for failure to pay appropriate minimum wages and
overtime compensation in violation of the Fair Labor Standards Act
and the New York Labor Law.
Mr. Joseph worked for the Defendants as a security guard in New
York, New York from summer of 2019 until his termination on April
12, 2022.
Watch Guard 24/7 LLC, doing business as Watch Guard 24/7, is a
security and private investigation company, with its headquarters
located in Long Island City, New York. [BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, 8th Floor
New York, NY 10011
Telephone: (212) 465-1180
Facsimile: (212) 465-1181
WHOLE FOODS: Loses Bid to Dismiss Warren's First Amended Complaint
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In the case, KAARON WARREN, et al., Plaintiffs v. WHOLE FOODS
MARKET CALIFORNIA, INC., Defendant, Case No. 21-cv-04577-EMC (N.D.
Cal.), Judge Edward M. Chen of the U.S. District Court for the
Northern District of California denies the Defendant's motion to
dismiss the First Amended Complaint on both jurisdictional and
failure-to-state-a-claim grounds.
I. Introduction
On Oct. 12, 2021, Plaintiffs Kaaron Warren and Christina Reed filed
a putative class action amended complaint against Defendant Whole
Foods Market California, Inc. ("WFM CA"), asserting state law false
advertising claims on behalf of California residents (the proposed
"California Class") and Nevada residents (the proposed "Nevada
Class") that purchased the Defendant's 365 Everyday Value coffee
creamer (the "Product"). In the First Amended Complaint ("FAC"),
the Plaintiffs allege that the Defendant misleadingly and
deceptively states, in violation of Food and Drug Administration
("FDA") regulations, "Vanilla" and "Naturally Flavored" on the
front label of the Product since the Product contains artificial
vanilla flavoring substances (ethyl vanillin and artificial
vanillin converted from Guaiacol, which is "obtained from synthetic
benzene and propylene"). On Nov. 12, 2021, the Defendant moved to
dismiss the FAC on both jurisdictional and failure-to-state-a-claim
grounds.
II. Background
In the operative complaint, the Plaintiffs specifically allege that
the Defendant "manufactures, distributes, markets, labels, and
sells a dairy coffee creamer under its 365 Everyday Value brand,
purporting to be 'Naturally Flavored' by 'Vanilla'" on the front
label and noting that the Product contains "Natural Flavor" in the
ingredient list on the back label. The Plaintiffs contend that the
Defendant's labeling of the Product misleads consumers into
believing that "the predominant or exclusive source of the
Product's vanilla taste will be the natural flavor of vanilla, and
the product will not contain artificial flavoring." Further, the
Plaintiffs allege, based on scientific testing they conducted, that
the Product contains a type of artificial flavoring substance named
ethyl vanillin that is not derived from the vanilla plant and made
through a non-natural process.
Additionally, the Plaintiffs allege that the testing suggests the
Defendant uses chemically synthesized vanillin "that is mostly not
from the vanilla plant." They specifically note that the testing
detected "guaiacol at atypically elevated levels (0.234 PPM)" and
emphasize that "guaiacol is an artificial source that is made
through non-natural processes." As such, the Plaintiffs claim that
by omitting "Artificially Flavored" from the Product's front label
as required under FDA regulations and by displaying instead
"Naturally Flavored," the Defendant gives consumers a false
expectation that most or all the Product's flavoring comes from the
natural flavor of vanilla and not any artificial or synthetic
flavoring. The Plaintiffs state that they "understood 'Naturally
Flavored' to mean the Product was flavored exclusively or
predominantly from the natural flavor of vanilla, images of which
were presented on the label" and "did not expect artificial
flavoring because the Product was labeled 'Naturally Flavored.'"
The Plaintiffs specifically allege that because the "Defendant knew
or should have known that its representations and omissions were
likely to deceive consumers" and the Plaintiffs "would only have
been willing to pay less, or unwilling to purchase the Product at
all, absent the misleading representations," Defendant's labeling
practice is both unlawful and fraudulent. They thus bring claims
under (1) the unlawful prong of California's Unfair Competition Law
("UCL"), Cal. Bus. & Prof. Code Section 17200 et seq. (California
Class); (2) the unfair and fraudulent prongs of the UCL (California
Class); (3) California's False Advertising Law ("FAL"), Cal. Bus. &
Prof. Code Sections 17500 et seq. (California Class); (4)
California's Consumer Legal Remedies Act ("CLRA"), Cal. Civ. Code
Section 1750 et seq. (California Class); (5) the Nevada Deceptive
Trade Practices Act ("NDTPA"), Nev. Rev. Stat. Section 598 et seq.
(Nevada Class); and (6) state law unjust enrichment claims
(California and Nevada Classes). The Plaintiffs additionally seek
declaratory and injunctive relief, punitive damages, and attorneys'
fees and other costs.
The Defendant moved to dismiss the FAC for failing to (1) establish
the Nevada Class's Article III standing to sue a California
corporation, (2) establish the Court's subject matter jurisdiction
over the California Class's claims, (3) state a claim under
12(b)(6), and (4) allege inadequacy of legal remedies that warrants
equitable claims. In response, the Plaintiffs requested limited
jurisdictional discovery and leave to amend the FAC to name the
proper defendant(s) and to cure other deficiencies in their
pleadings.
The Court heard oral argument on the motion to dismiss on Feb. 3,
2021. Pursuant to Federal Rules of Civil Procedure Rule 12(d), the
Court converted the motion to dismiss to a motion for partial
summary adjudication and gave the parties "reasonable opportunity
to present all the material that is pertinent to the motion."
Further, the Court gave the parties 90 days from the date of the
hearing to conduct such discovery and submit a joint status report
before the continued hearing on this matter.
On April 15, 2022, the parties submitted a joint stipulation
regarding substitution of parties. Pursuant to Federal Rule of
Civil Procedure Rule 15, the parties specifically agreed and
stipulated to the substitution of WFM Private Label LP for
Defendant WFM California in the FAC.
On May 3, 2022, the parties submitted a joint status report. The
parties stated that if the stipulated substitution is granted, they
have agreed that Plaintiff Reed would dismiss her claims, as well
as the claims of the Nevada class, without prejudice. The parties
also stated that if the stipulation is granted and Plaintiff Reed
and the other members of the proposed Nevada class are dismissed,
that the portion of the Defendant's motion to dismiss regarding
personal jurisdiction is withdrawn as moot, with only the
non-jurisdictional arguments remaining for decision by the Court.
The Court granted the joint stipulation on May 4, 2022 and heard
further argument on the remaining non-jurisdictional claims on May
10, 2022. As such, the Court finds at the outset that the
Defendant's argument for dismissal based on lack of personal
jurisdiction MOOT since this issue is no longer disputed by the
parties given the substitution of a California defendant for a
Texas based defendant. Further, given the aforementioned agreement
amongst the parties, the Court dismisses Plaintiff Reed's claims,
as well as the claims of the Nevada class, without prejudice.
Plaintiff Warren and the California class remain and only the
non-jurisdictional arguments remain for the Court to decide. Judge
Chen addresses the remaining non-jurisdictional bases for
dismissal.
III. Discussion
A. Failure to State a Claim under Rule 12(b)(6)
The Defendant argues that the Plaintiffs fail to establish that:
(1) the Product's label violates the Federal Food, Drug, and
Cosmetic Act ("FDCA"), upon which the UCL's unlawful prong and the
NDTPA are predicated, and (2) the Product's label is a deceptive or
fraudulent misrepresentation that makes the Defendant liable under
the UCL's unfair and fraudulent prongs, under the FAL as "a false
or misleading advertising claim," and under the CLRA.
Judge Chen holds that because the Plaintiffs allege that ethyl
vanillin is artificial and sufficiently show the presence of ethyl
vanillin in the Product at a non-infinitesimal amount, they have
pled a plausible claim under the UCL's unlawful prong. This is
without prejudice to the Plaintiffs additionally making a stronger
showing at a later juncture after discovery that the levels of
vanillin in fact demonstrates artificial flavoring.
He further holds that the Plaintiffs plausibly claim that the
Defendant's "Vanilla Naturally Flavored" representation on the
Product label is deceptive to a reasonable consumer since the
Product contains artificial flavoring ethyl vanillin. They
specifically allege in the FAC that they: (1) purchased the Product
in reliance on the Defendant's "Naturally Flavored" representation
(2) with the expectation that the Product did not contain any
artificial or synthetic flavoring, and (3) would only have been
willing to pay less, or unwilling to purchase it at all, absent the
misleading representations. Judge Chen concludes that the
Plaintiffs have a plausible claim of fraudulent or deceptive
misrepresentation.
B. Availability of Equitable Claims
The Defendant argues that "absent any plausible allegation that the
CLRA's damages remedy is inadequate to compensate Plaintiff Warren
for her alleged harm, Sonner v. Premier Nutrition Corp., 971 F.3d
834 (9th Cir. 2020) bars her from seeking restitution—or any
other equitable remedy." The Plaintiffs contend that "damages under
the CLRA are a legal remedy" and "a different remedy than
restitution under the False Advertising and Unfair Competition
Laws."
Judge Chen finds that the Plaintiff Warren is not barred by Sonner
at this juncture from pursuing alternative remedies at this early
stage of the suit and her "entitlement to seek the equitable remedy
of restitution may be revisited at a later stage." As such, he
denies the Defendant's motion to dismiss Plaintiff Warren's
restitution claims under the UCL and FAL for failing to plead
inadequate legal damages.
IV. Conclusion
For the foregoing reasons, Judge Chen finds the basis for dismissal
due to lack of personal jurisdiction moot and dismisses Plaintiff
Reed's claims, as well as the claims of the Nevada class, without
prejudice. Additionally, he denies the Defendant's motion to
dismiss for failing to allege claims under the UCL's unlawful,
unfair and fraudulent prongs, the FAL, and CLRA. Further, he denies
its motion to dismiss the injunctive relief and restitution claims
under the UCL and FAL.
The Order disposes of Docket No. 27.
A full-text copy of the Court's July 8, 2022 Order is available at
https://tinyurl.com/2tzvh5yz from Leagle.com.
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