/raid1/www/Hosts/bankrupt/CAR_Public/220809.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, August 9, 2022, Vol. 24, No. 152
Headlines
3M COMPANY: Adams Suit Alleges Complications From AFFF Products
3M COMPANY: AFFF Products Can Cause Cancer, Osuna Suit Alleges
3M COMPANY: AFFF Products Harmful to Human Health, Barton Claims
3M COMPANY: Exposed Firefighters to PFAS From AFFF Products
3M COMPANY: Faces Williams Suit Over AFFF Products' PFAS Content
3M COMPANY: Haroulakis Sues Over PFAS Exposure From AFFF Products
ACTS RETIREMENT: Fails to Protect Employees' Info, Corra Claims
ALLEGHENY COUNTY, PA: Allowed Leave to File Class Cert. Reply Brief
ALLSTATE INSURANCE: Cromie et al. Sue Over Unsolicited Phone Calls
ALLY FINANCIAL: Faces Kumar Suit Over Violation of Lessees' Rights
ALPINE FUNDING: Bueno Sues Over Unwanted Telephonic Sales Calls
AMCO INSURANCE: Appeals Interlocutory Cert. Bid Denial to 9th Cir.
AMERICAN BOTTLING: Bello Wage-and-Hour Suit Goes to E.D. Cal.
AMERICAN CHEVROLET: Fails to Pay Consultants' Minimum & OT Wages
AMERICAN FAMILY: Preliminary Pretrial Conference Order Entered
ARGENT TRUST: Can Compel Arbitration in Robertson Suit, Court Says
BEIERSDORF INC: Bangoura Seeks to Certify Class Action Settlement
BEIS LLC: Faces Dorton Suit Over Unsolicited Telemarketing Calls
BISCUITVILLE INC: Misclassifies Assistant Managers, Deryas Claims
BLUE CROSS: Amended Case Scheduling Order Entered in Pritchard
BMW FINANCIAL: Final OK of Rawlings' $950K Settlement Recommended
BOOKING.COM: Unlawfully Records Cellular Communications, Suit Says
BREAKING BREAD: Fails to Pay Minimum & OT Wages, Bryant Alleges
BRIDGES OF HOPE: Mynatt Suit Seeks Minimum, OT Pay for Workers
BUILD-A-BEAR WORKSHOP: Bid to Remand Ruby Suit to Cir. Court Denied
BURLINGTON COAT: Fails to Properly Pay Overtime Wages, Rosa Claims
BUTTERBALL LLC: Figueroa's NCWHA Claims Dismissed With Prejudice
C.R. ENGLAND: Hagest Suit Alleges Unpaid Wages for Drivers
CAMI FEEK: Filing of Class Status Bid Due May 5, 2023
CAPITAL ONE: Court Denies Lavender's Bid for Certification
CASPER SLEEP: Hwang Files ADA Suit in S.D. New York
CEBRIDGE TELECOM: Baker Sues Over Hidden Programming Surcharges
CHARLES SCHWAB: Scheduling Order Entered in Wright Class Suit
CHICK-FIL-A INC: S.D. New York Dismisses Pittman's 1st Amended Suit
CHIEFTAIN COATING: FLSA Collective Gets Conditional Status
CHIPPEWA RESOURCES: Fails to Pay Overtime Wages, Toulou Claims
CHUCK'S LAWN: Black Files Suit Over Landscapers' Unpaid OT Wages
CJ PRODUCTS INC: Dicks Files ADA Suit in S.D. New York
CLEAN HARBORS: Fails to Pay Minimum Wages & OT, Alba Alleges
COCUSOCIAL INC: Slade Files ADA Suit in S.D. New York
COUNTERTOP FACTORY: Conditional Status of Employee Class Sought
COUNTRY CLUB PREP: Dicks Files ADA Suit in S.D. New York
COX INDUSTRIES: Crout Labor Code Suit Goes to D. South Carolina
COZYMEAL INC: Slade Files ADA Suit in S.D. New York
CRICKET WIRELESS: Wins Bid to Decertify Class in Freitas Suit
DENTSPLY SIRONA: Faces Pension Fund Suit Over Price Stock Drop
DOLGEN CALIFORNIA: Ransdell Labor Suit Removed to E.D. California
DUKE ENERGY: Shird Sues Over Customer Service Reps' Unpaid OT
DUKE UNIVERSITY: Young Files ADA Suit in S.D. New York
ELITE COSMETIX: Zinnamon Files ADA Suit in S.D. New York
ELIZABETH LARAMAY: Court Resets Deadlines in Matzell Class Suit
ENOCHIAN BIOSCIENCES: Faces Chow Class Suit Over Stock Price Drop
EPOCH TIMES: Discloses Customers' Personal Info, Czarnionka Says
ERICO INTERNATIONAL: Initial OK of Settlement in McKnight Sought
EXEL INC: Young et al. Sue Over Failure to Properly Pay OT Wages
FAIRHOPE, AL: JME Building Suit Removed to S.D. Alabama
FENG SHUI IMPORT: Dicks Files ADA Suit in S.D. New York
FLAGSTAR BANK: Fails to Protect Consumers' Info, Silva Suit Says
FLAME & WAX: Luis Files ADA Suit in S.D. New York
FMA ALLIANCE: Ragsdale Files FDCPA Suit in D. Utah
FOLKMANIS INC: Dicks Files ADA Suit in S.D. New York
FOOD EXPERIENCES: Slade Files ADA Suit in S.D. New York
GARRISON PROPERTY: Lemke Files Suit in C.D. Illinois
GEICO CHOICE: Court Grants Bids to Dismiss Jones Class Suit in Full
GENERAL MOTORS: Bids to Strike Experts' Opinions in Won Suit Denied
GENERAL MOTORS: Counts, et al., Seek Class Certification
GODADDY.COM LLC: 11th Cir. Vacates Class Cert. Order in Drazen Suit
GREATBANC TRUST: Amended Scheduling Order Entered in Szalanski
HCA HEALTHCARE: Faces Suit Over Monopolization of Healthcare Market
HEMINGTON LANDSCAPE: Chavez Files Suit in Cal. Super. Ct.
HIGH POWER: Case Summary & Eight Unsecured Creditors
HIGHLAND-KINGDALE ASSOCIATES: Cheli Seeks Equal Access to Property
HIGHLANDS COMMUNITY: Iranrouh Files Suit in Cal. Super. Ct.
HOPPER (USA) INC: Acosta Files Suit in N.D. Illinois
IMPAX LABORATORIES: Stipulated Final Judgment in Fleming Suit OK'd
INFINITY INSURANCE: Unfairly Profited From COVID-19, Torrez Says
J.B. HUNT: Townsend Labor Code Suit Removed to C.D. California
JAMAICA POULTRY: Faces Cujcuy Wage-and-Hour Suit in E.D.N.Y.
JORDAN'S FURNITURE: Luis Files ADA Suit in S.D. New York
JUICY'S VAPOR: Faces Schmitendorf Suit Over Telemarketing Messages
JUUL LABS: E-Cigarette Ads Target Youth, Fairfax County Suit Says
JUUL LABS: School Board Sues Over Deceptive Youth E-Cigarette Ads
KAHKOW USA LLC: Martinez Files ADA Suit in E.D. New York
KATE BROWN: Court Lifts Stay of Figueroa Class Action
KBR INC: Julio Sues Over Failure to Pay Kitchen Workers' Overtime
KERYX BIOPHARMACEUTICAL: 3rd Cir. Affirms Andruela Suit Dismissal
KITCHEN DESIGNS: Hwang Files ADA Suit in S.D. New York
KONINKLIJKE PHILIPS: Whitescarver Suit Transferred to W.D. Pa.
LA-Z-BOY INC: Evers Suit Remanded to San Diego County Super. Court
LABOR RESOURCE: Farias Files Suit in Cal. Super. Ct.
LABORATORY CORPORATION: Baldwin Files Suit in Fla. Cir. Ct.
LASERSHIP INC: Nunes Suit Seeks Overtime Pay for Delivery Drivers
LAUNDRY DEPOT: Filing of Class Cert. Bid Extended to Sept. 30
LAZY ONE INC: Zinnamon Files ADA Suit in S.D. New York
LEILO INC: Martinez Files ADA Suit in E.D. New York
LENG HAONG: Ortiz Suit Removed to E.D. California
LINDA FASHION: Iskhakova Files ADA Suit in E.D. New York
LOT LESS OF FULTON: Iskhakova Files ADA Suit in E.D. New York
MASONITE CORPORATION: Fails to Properly Pay Workers, Blakley Says
MATTHEW WALKER: Counts Seeks FLSA Conditional Certification
MEDICAL SOLUTION: Dittman's Class and FLSA Collective Decertified
MMM CONSUMER BRANDS: Eppes Files TCPA Suit in S.D. New York
MOLTON BROWN USA: Luis Files ADA Suit in S.D. New York
MONROE BIOMEDICAL: Underpays Clinical Research Staff, Feliz Says
MONTEREY FINANCIAL: Pagkalinawan Files TCPA Suit in D. Hawaii
NAVY FEDERAL: Hart Suit Transferred to E.D. Virginia
NESTLE WATERS: S.D. New York Dismisses Oldrey Consumer Class Suit
NEWREZ: Fisher Suit Removed to D. Massachusetts
NIELSEN HOLDINGS: $18M in Attys.' Fees Awarded in Securities Suit
NIELSEN HOLDINGS: Court Issues Final Judgment in Securities Suit
NOBLE ENERGY INC: Boulter Files Suit in D. Colorado
OAKLANDISH LLC: Dicks Files ADA Suit in S.D. New York
PARSEC INC: Illinois App. Affirms Dismissal of Soltysik BIPA Suit
PLYMOUTH ROCK: Gomes Sues Over Denied Collision Coverage Claims
PRACTICEMAX INCORPORATED: Medina Files Suit in D. Arizona
PROCTER & GAMBLE: Aerosol Products Unsafe to Use, Kendall Claims
PROFESSIONAL FINANCE: Skrabo Files Suit in D. Colorado
PROLOGIS INC: Bushansky Enjoins Stockholder Vote in Securities Suit
QUANTUMSCAPE: Fish, et al., Seek to Certify Rule 23 Class
RECKITT BENCKISER: Court Certifies Classes in Prescott Suit
RED TOMATOES: Vargas Sues Over Unpaid Wages for Grocery Store Staff
REDD HOFFMAN & BRAMLETT: Walsh Files FDCPA Suit in S.D. Texas
REFINERY 29 INC: Brown Files ADA Suit in S.D. New York
RESEARCH STRATEGIES: Seeks Leave to File Supplemental Response
ROCKET MORTGAGE: Romero Files TCPA Suit in C.D. California
RYDER SYSTEM: Ct. Amends Class Cert Reply Deadline to Feb. 17, 2023
SAN DIEGO: Knox Sues Over Wage-and-Hour Violations in California
SEAWORLD PARKS: Discriminates Against Black Guests, Burns Alleges
SHIELDS HEALTH: Fails to Protect Patients' Info, Colby Claims
SOCLEAN INC: Sanitizing Machines Emit Ozone, Smith Suit Claims
SUSAN WASHBURN: Court Lifts Stay of Reyes Class Action
SUSHI FUSSION: Sun Appeals Partial Ruling on Attorney's Fee Bid
TARGET CORP: Torres Suit Transferred From E.D. to C.D. California
THRIVE MARKET: Shaw EFTA Suit Removed to C.D. California
TWITTER INC: Gray Loses Bid to Stay Suit Over Resolution of Morgan
UNITI GROUP: Safadi's Bid for Class Certification Tossed as Moot
UPSTART HOLDINGS: Crain Sues Over 56% Decline of Stock Price
VENATOR MATERIALS: $19MM Class Settlement to be Heard on Sept. 9
VENTURA COUNTY, CA: Stipulation on Class Certification Dates OK'd
VEP ASSOCIATES: Faces Sarr Class Suit Over Time Shaving Violations
VITAL LINK: Conditional Status of Employee Collectives Sought
VOYAGER 888: Discovery Deadlines Stayed in King Class Action
WAY.COM INC: Darder Files Suit Over Unsolicited Prerecorded Calls
WILCO LIFE: Schrader Wage-and-Hour Suit Goes to S.D. California
ZACHARY HOLDINGS: Blackmon Suit Returned to Texas District Court
ZACHARY HOLDINGS: Final OK of $1.9MM Blackmon Settlement Endorsed
*********
3M COMPANY: Adams Suit Alleges Complications From AFFF Products
---------------------------------------------------------------
CHARLES ADAMS, JR., 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-02414-RMG
(D.S.C., July 26, 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, the suit
alleges.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and –
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
3M COMPANY: AFFF Products Can Cause Cancer, Osuna Suit Alleges
--------------------------------------------------------------
JOHN OSUNA, 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-02415-RMG
(D.S.C., July 26, 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
3M COMPANY: AFFF Products Harmful to Human Health, Barton Claims
----------------------------------------------------------------
JAMES BARTON, 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-02437-RMG
(D.S.C., July 29, 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, the suit
alleges.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and –
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
3M COMPANY: Exposed Firefighters to PFAS From AFFF Products
-----------------------------------------------------------
ROBERT BERNARDIN, 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-02410-RMG
(D.S.C., July 26, 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, the suit
alleges.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and –
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
3M COMPANY: Faces Williams Suit Over AFFF Products' PFAS Content
----------------------------------------------------------------
KEN WILLIAMS, 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-02409-RMG
(D.S.C., July 26, 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
3M COMPANY: Haroulakis Sues Over PFAS Exposure From AFFF Products
-----------------------------------------------------------------
JOHN HAROULAKIS, 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-02408-RMG
(D.S.C., July 26, 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, the suit
alleges.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and –
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
ACTS RETIREMENT: Fails to Protect Employees' Info, Corra Claims
---------------------------------------------------------------
CARA-AIMEE LONG CORRA, individually and on behalf of all others
similarly situated, Plaintiff v. ACTS RETIREMENT SERVICES, INC.,
Defendant, Case No. 2:22-cv-02917-GEKP (E.D. Pa., July 26, 2022) is
a class action against the Defendant for negligence, negligence per
se, and breach of confidence.
According to the complaint, the Defendant failed to adequately
protect employees' personally identifiable information (PII)
following a data breach occurred on or around April 29, 2022.
Moreover, the Defendant failed to timely notify the Plaintiff and
similarly situated employees of the data breach. The Defendant's
failure to timely detect and report the data breach made its
current and former employees vulnerable to identity theft without
any warnings to monitor their financial accounts or credit reports
to prevent unauthorized use of their PII.
ACTS Retirement Services, Inc. is a provider of residential,
assisted living, and skilled care services to senior citizens,
headquartered in Fort Washington, Pennsylvania. [BN]
The Plaintiff is represented by:
Patrick Howard, Esq.
SALTZ MONGELUZZI & BENDESKY, PC
1650 Market Street, 52nd Floor
One Liberty Place
Philadelphia, PA 19103
Telephone: (215) 575-3895
Facsimile: (215) 754-4443
E-mail: phoward@smbb.com
- and –
Samuel J. Strauss, Esq.
Raina C. Borrelli, Esq.
Brittany Resch, 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
brittanyr@turkestrauss.com
ALLEGHENY COUNTY, PA: Allowed Leave to File Class Cert. Reply Brief
-------------------------------------------------------------------
In the class action lawsuit captioned as JASON PORTER, KEISHA
COHEN, JAMES BYRD, ALBERT CASTAPHANY and SHAQUILLE HOWARD, v.
ORLANDO HARPER, ALLEGHENY COUNTY, LAURA WILLIAMS and MICHAEL
BARFIELD, Case No. 2:20-cv-01389 (W.D. Pa.), the Hon. Judge Lisa
Pupo Lenihan entered an order granting motion for leave to file
reply brief in support of their motion for class certification.
The nature of suit states Prisoner Civil Rights.
Allegheny County is located in the southwest of the U.S. state of
Pennsylvania.[CC]
ALLSTATE INSURANCE: Cromie et al. Sue Over Unsolicited Phone Calls
------------------------------------------------------------------
STEVEN CROMIE, TANISHA TUTSON, and RUTHY HARRIS, individually and
on behalf of all similarly situated individuals, Plaintiffs v.
ALLSTATE INSURANCE COMPANY, an Illinois insurance company,
Defendant, Case No. 1:22-cv-03950 (N.D. Ill., July 29, 2022) bring
this class action complaint against the Defendant seeking an
injunctive relief as a result of the Defendant's alleged violations
of the Telephone Consumer Protection Act (TCPA).
The Plaintiffs assert that in an attempt to promote the Defendant's
products and services, the Defendant allegedly conducted a
wide-scale telemarketing campaign by repeatedly making unsolicited
prerecorded phone calls to consumers' telephones, including them.
The Plaintiffs received unsolicited telemarketing calls from the
Defendant, specifically an "avatar" and/or "soundboard" technology,
wherein it involves human listening into a call and attempting to
press computer buttons to generate a pre-recorded response that
would be consistent with what a human operator may say.
Unfortunately, the Defendant failed to obtain the Plaintiffs and
other similarly situated persons' prior express written consent to
be repeatedly contacted using a prerecorded voice, say the
Plaintiffs.
As a result of the Defendant's unsolicited prerecorded calls, the
Plaintiffs and other similarly situated individuals have suffered
an actual harm and cognizable legal injury, that includes the
aggravation and nuisance and invasion of privacy. Thus, on behalf
of the Class, the Plaintiffs seek an injunction requiring the
Defendant to cease all unsolicited prerecorded telephone calling
activities in the absence of prior express written consent. The
Plaintiffs also seek an award of statutory damages to be paid into
a common fund for the benefit of the Class, together with costs and
reasonable attorney's fees to be paid from any such common fund.
Allstate Insurance Company is an insurance company. [BN]
The Plaintiffs are represented by:
Steven L. Woodrow, Esq.
Patrick H. Peluso, Esq.
WOODROW & PELUSO, LLC
3900 E. Mexico Ave., Suite 300
Denver, CO 80210
Tel: (720) 213-0675
Fax: (303) 927-0809
E-mail: swoodrow@woodrowpeluso.com
ppeluso@woodrowpeluso.com
ALLY FINANCIAL: Faces Kumar Suit Over Violation of Lessees' Rights
------------------------------------------------------------------
DHARAN KUMAR, individually and on behalf of all others similarly
situated, Plaintiff v. ALLY FINANCIAL INC., MASERATI AND ALFA ROMEO
OF PUENTE HILLS and DOES 1-20, inclusive, Defendants, Case No.
2:22-cv-05184 (C.D. Cal., July 26, 2022) is a class action against
the Defendants for fraud and deceit and violations of California
Business and Professions Code, California Moscone Vehicle Leasing
Act and the American with Disabilities Act.
According to the complaint, the Defendants violated MVLA that
protects the rights of the lessees to buy their vehicles at any
time and in any condition. Under the Defendants' scheme, Ally
contacts the lessee's insurance company if the auto accident
results in a total loss, and requests the value of the appraisal.
If the insurance amount exceeds the outstanding loan, Ally sends
the lessees notices advising the lessees that they no longer have
the right to buy their cars because their MVLA was terminated by
Ally. From that point, Ally takes over the settlement process with
the insurance companies. The Plaintiff seeks, on behalf of himself,
the Class, and the general public, an injunction prohibiting Ally
from refusing to allow lessees to buy out their vehicles after
total loss; and also prohibiting Ally to accept funds from
insurance companies in excess of an amount of the remaining loan on
the vehicles, says the suit.
Ally Financial Inc. is a financial services firm, headquartered in
Detroit, Michigan.
Maserati and Alfa Romeo of Puente Hills is an independent car
dealer conducting sales and leases of vehicles in California. [BN]
The Plaintiff is represented by:
Leon Ozeran, Esq.
THE LAW OFFICES OF LEON OZERAN
8200 Wilshire Blvd., Suite 400
Beverly Hills, CA 90211
Telephone: (310) 461-3730
E-mail: ozeranlaw@gmail.com
ALPINE FUNDING: Bueno Sues Over Unwanted Telephonic Sales Calls
---------------------------------------------------------------
RAY BUENO, individually and on behalf of all others similarly
situated, v. ALPINE FUNDING PARTNERS, LLC, Case No.
1:22-cv-22336-BB (S.D. Fla., July 26, 2022) contends that the
Defendant promotes and markets its merchandise, in part, by placing
unsolicited phone calls to wireless phone users, in violation of
the Telephone Consumer Protection Act (TCPA) and under the Florida
Telephone Solicitation Act.
The Defendant is an alternative finance company that provides
commercial financing for small businesses. According to the
Defendant's website, Defendant "works with hundreds of small
businesses all over the United States across multiple industries."
To promote its goods and services, the Defendant engages in
aggressive telephonic sales calls to consumers without having
secured prior express written consent as required under the FTSA,
and with no regards for consumers' rights under the TCPA, the suit
says.
The Defendant's telephonic sales calls have caused Plaintiff and
the Class members harm, including violations of their statutory
rights, statutory damages, annoyance, nuisance, and invasion of
their privacy, added the suit.
Through this action, the Plaintiff seeks an injunction and
statutory damages on behalf of himself and the Class members, as
defined below, and any other available legal or equitable remedies
resulting from the unlawful actions of Defendant.[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
E-mail: ashamis@shamisgentile.com
gberg@shamisgentile.com
- and -
Scott Edelsberg, Esq.
EDELSBERG LAW P.A.
20900 NE 30th Ave., Suite 417
Aventura, FL 33180
Telephone: (305) 975-3320
E-mail: scott@edelsberglaw.com
AMCO INSURANCE: Appeals Interlocutory Cert. Bid Denial to 9th Cir.
------------------------------------------------------------------
AMCO INSURANCE CO., et al., are taking an appeal from a court
ruling denying their motion for certification of interlocutory
appeal and their motion for a stay of proceedings as moot in the
lawsuit entitled Francisco Rocha, et al., individually and on
behalf of all others similarly situated, Plaintiffs, v. AMCO
Insurance Co., et al., Defendants, Case No. 5:21-cv-01669-GW-SP, in
the U.S. District Court for the Central District of California.
The Plaintiffs brought this class action suit on behalf of
themselves and all other current and former policyholders qualified
under California Law to purchase a Good Driver Discount (GDD)
policy who, from January 1, 2009 through the last date Titan and
Victoria sold personal auto policies in California, paid premiums
for Defendants' automobile policies containing a GDD. According to
the complaint, the Defendants unlawfully overcharged the Plaintiffs
and Class members for, and wrongfully retained, automobile
insurance premiums in violation of the Defendants' fiduciary
duties, policy contractual obligations and marketing
representations, in violation of California Business Professions
Code and other applicable California Law.
On January 24, 2022, the Defendants filed a motion to dismiss the
case.
On February 25, 2022, Plaintiffs Ester Rocha and Francisco Rocha
filed a motion for referral of matter to the California Department
of Insurance (CDI), and for a stay of proceedings.
On May 13, 2022, the Court entered final rulings on Defendants'
motion to dismiss, as well as on Plaintiffs' motions for (i)
referral of matter to the CD for primary jurisdiction ruling and
(2) stay of proceedings. Specifically, Judge George H. Wu
tentatively granted the Motion for Referral to the CDI and stay the
case, pending a determination by the CDI as to whether Defendants
were entitled to the Super Group Exemption during the Class Period.
However, the Court declined to address the Defendants' Motion to
Dismiss and denied the Motion without prejudice, allowing
Defendants to reassert the Motion after the stay has been lifted.
The Court set a status conference for December 12, 2022 at 8:30
a.m., and ordered the parties to file a joint status report by
December 7.
On May 23, 2022, the Defendants filed a motion to certify
interlocutory appeal under 28 U.S.C. Section 1292(b) and for a stay
of proceedings.
The court made a tentative ruling to deny the Defendants' motion to
certify interlocutory appeal and their motion for a stay of
proceedings as moot on June 21, 2022. The court adopted the
tentative ruling as its final ruling on June 23, 2022.
The appellate case is captioned as In re: AMCO Insurance Co., et
al. v. USDC-CARIV, et al., Case No. 22-70146, in the United States
Court of Appeals for the Ninth Circuit, filed on July 15, 2022.
[BN]
Plaintiffs-Petitioners AMCO INSURANCE CO., et al., are represented
by:
Michael Hiram Carpenter, Esq.
CARPENTER LIPPS & LELAND LLP
280 North High Street
Columbus, OH 43215
Telephone: (614) 365-4100
- and -
Ronald David Kent, Esq.
DENTONS US, LLP
601 S. Figueroa Street, Suite 2500
Los Angeles, CA 90017
Telephone: (213) 892-5030
- and -
Sonia Martin, Esq.
DENTONS US, LLP
1999 Harrison Street, Suite 1300
Oakland, CA 94612
Telephone: (415) 882-2476
Defendants-Respondents UNITED STATES DISTRICT COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA, RIVERSIDE, et al., are represented by:
Brian S. Kabateck, Esq.
KABATECK LLP
633 W. 5th Street, Suite 3200
Los Angeles, CA 90017
Telephone: (213) 217-5000
E-mail: bsk@kbklawyers.com
AMERICAN BOTTLING: Bello Wage-and-Hour Suit Goes to E.D. Cal.
-------------------------------------------------------------
The case styled FRANCISCO BELLO, on behalf of himself and all
others similarly situated v. THE AMERICAN BOTTLING COMPANY, KEURIG
DR PEPPER INC., TAYLOR MARCUS, and DOES 1 through 100, inclusive,
Case No. STK-CV-UOE-2022-5279, was removed from the Superior Court
of the State of California for the County of San Joaquin to the
U.S. District Court for the Eastern District of California on July
27, 2022.
The Clerk of Court for the Eastern District of California assigned
Case No. 2:22-at-00781 to the proceeding.
The case arises from the Defendants' alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to pay overtime wages, failure to provide
rest periods, failure to provide meal periods, failure to timely
pay wages upon separation of employment, failure to provide
accurate wage statements, failure to timely pay wages during
employment, and unfair competition.
The American Bottling Company is a beverage company based in Plano,
Texas.
Keurig Dr Pepper Inc. is a multinational soft drink company based
in Plano, Texas. [BN]
The Defendants are represented by:
Daniel C. Whang, Esq.
Laura E. Heyne, Esq.
SEYFARTH SHAW LLP
2029 Century Park East, Suite 3500
Los Angeles, CA 90067-3021
Telephone: (310) 277-7200
Facsimile: (310) 201-5219
E-mail: dwhang@seyfarth.com
lheyne@seyfarth.com
AMERICAN CHEVROLET: Fails to Pay Consultants' Minimum & OT Wages
----------------------------------------------------------------
MICHAEL O'ROURKE, Individually and on Behalf of All Others
Similarly Situated v. AMERICAN CHEVROLET, INC., Case No.
1:22-cv-03848 (N.D. Ill., July 26, 2022) is a collective action
against the Defendant for violations of the Fair Labor Standards
Act, the minimum wage and overtime provisions of the Illinois
Minimum Wage Law, and the payment provisions of the Illinois Wage
Payment and Collection Act.
The Plaintiff seeks declaratory judgment, monetary damages,
liquidated damages, costs, and a reasonable attorneys' fee, as a
result of Defendant's policy and practice of failing to pay
Plaintiff and others similarly situated sufficient wages under the
FLSA, the IMWL and the IWPCA within the applicable statutory
limitations period.
During his employment, the Plaintiff worked for Defendant as a
Sales and Leasing Consultant (SLC). The Plaintiff contends that the
Defendant regularly failed to pay him, and other SLCs one and a
half times the applicable minimum wage for all hours worked in a
week. In some weeks, he did not earn any commission and in these
weeks he was paid only the salary of $200, says the suit.
American Chevrolet, Inc. retails automobile vehicles.[BN]
The Plaintiff is represented by:
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Pkwy, Suite 510
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
E-mail: josh@sanfordlawfirm.com
AMERICAN FAMILY: Preliminary Pretrial Conference Order Entered
--------------------------------------------------------------
In the class action lawsuit captioned as JOAN LOCH, Individually
and on behalf of all others similarly situated, v. AMERICAN FAMILY
MUTUAL INSURANCE COMPANY, S.I., Case No. 3:22-cv-00213-jdp (W.D.
Wisc.), the Court entered a preliminary pretrial conference order
as follows:
1. Response to motion for conditional August 10, 2022
certification:
Reply: August 17, 2022
2. Amendments to the pleadings: September 30, 2022
3. Motions & Briefs To Certify/ February 17, 2023
Decertify Classes:
Responses: March 20, 2023
Replies: April 2, 2023
4. Disclosure of experts: To be determined by
the parties
5. Deadline for filing October 6, 2023
dispositive motions:
6. Settlement Letters: March 15, 2024
7. Discovery Cutoff: March 15, 2024
8. Rule 26(a)(3) Disclosures March 29, 2024
and all motions in limine:
Objections: April 12, 2024
9. First Final Pretrial Conference: May 1, 2024
Second Final Pretrial Conference: May 8, 2024
10. Trial: May 13, 2024
AmFam is an American private mutual company that focuses on
property, casualty, and auto insurance, and also offers commercial
insurance, life, health, and homeowners coverage as well as
investment and retirement-planning products.
A copy of the Court's order dated July 29, 2022 is available from
PacerMonitor.com at https://bit.ly/3QfsHX6 at no extra charge.[CC]
ARGENT TRUST: Can Compel Arbitration in Robertson Suit, Court Says
------------------------------------------------------------------
In the case, Shana Robertson, Plaintiff v. Argent Trust Company, et
al., Defendants, Case No. CV-21-01711-PHX-DWL (D. Ariz.), Judge
Dominic W. Lanza of the U.S. District Court for the District of
Arizona grants Argent's motion to compel arbitration.
In this putative class action, Robertson alleges that Argent
breached fiduciary duties when administering an employee stock
ownership plan ("ESOP"), in violation of the Employee Retirement
Income Security Act of 1974. She is a former employee of Isagenix
Worldwide, Inc. She is a participant in that company's ESOP, which
held "shares of Isagenix allocated to her account in the Plan."
Argent serves as the Plan's Trustee.
On June 14, 2018, Argent purchased 30,000 shares of Isagenix
preferred stock from Defendants Jim and Kathy Coover and Jim and
Tammy Pierce. The Plaintiff alleges "the ESOP transaction allowed
the Coovers and Pierces to cash out a portion of their Isagenix
stock at a high price at a time when Isagenix's business was
deteriorating, and it placed excessive debt on the Company. Argent
failed to fulfill its ERISA duties, as Trustee and fiduciary, to
the Plan and its participants, including the Plaintiff."
In this action, the Plaintiff sues to "enforce her rights under
ERISA and the Plan, to recover the losses incurred by the Plan
and/or the improper profits realized by the Defendants resulting
from their breaches of fiduciary duty and prohibited transactions,
and equitable relief, including rescission of the ESOP Transaction
and removal of fiduciaries who have failed to protect the Plan. She
requests that these prohibited transactions be declared void, the
Defendants be required to restore any losses to the Plan arising
from its ERISA violations, they be ordered to disgorge any profits
and any monies recovered for the Plan be allocated to the accounts
of the Class members. As alleged, the Plan has been injured and its
participants have been deprived of hard-earned retirement benefits
resulting from the Defendants' violations of ERISA."
In response, Argent argues that "pursuant to a valid agreement to
arbitrate and to waive proceeding on a representative, class,
collective, or group basis, Plaintiff's claims must be addressed on
an individual basis in arbitration." In support of this request, it
cites Section 17.9(a)(ii) of the Plan.
On Oct. 14, 2021, Argent amended the Plan's arbitration provision.
The amendment states in relevant part: "Nothing in this provision
will be construed to preclude a Claimant from seeking injunctive
relief, including, for example, seeking an injunction to remove or
replace a Plan fiduciary even if such injunctive relief has an
incidental impact on other Employees, Participants, or
Beneficiaries."
On Dec. 13, 2021, it filed a motion to compel arbitration based on
an arbitration clause in the Plan and to require the Plaintiff to
arbitrate her claims on an individual basis. On Jan. 28, 2022, the
Plaintiff filed a response in opposition. She seems to concede that
the Plan qualifies as a "contract evidencing a transaction
involving commerce" -- and, thus, the FAA governs the
enforceability of the Plan's arbitration provision. She also seems
to concede that the Plan's arbitration provision "encompasses the
dispute at issue." Nevertheless, she asserts that the provision is
unenforceable (and thus is not a "valid agreement to arbitrate")
because (1) it is unconscionable under Arizona law and (2) it
improperly restricts the assertion of certain statutory rights
under ERISA.
Judge Lanza finds that the FAA does not, itself, call for state law
to govern the enforceability of arbitration agreements. But courts
do not look to state law when interpreting ERISA plans. Thus, when
interpreting an ERISA plan, "the Court has generally applied
federal common law. The general rule is that state common-law rules
related to employee benefit plans are preempted." This uniformity
prevents a "patchwork scheme of regulation," and prevents litigants
from "obtaining remedies under state law that Congress rejected in
ERISA." Because the arbitration provision is found within an ERISA
plan, its interpretation is governed by federal common law.
Evaluating the Plaintiff's contract defense of substantive
unconscionability under federal common law, Judge Lanza holds that
when neither side meaningfully addresses a key issue, the outcome
is dictated by the burden of proof. The Ninth Circuit has explained
that, "as arbitration is favored, those parties challenging the
enforceability of an arbitration agreement bear the burden of
proving that the provision is unenforceable." The Plaintiff has not
met that burden here. For this reason alone, her unconscionability
challenge to the Plan's arbitration provision fails.
Alternatively, even if she had attempted to develop a claim of
unconscionability under federal common law, Judge Lanza finds that
that claim would fail on the merits. The Ninth Circuit has
repeatedly stated that "ERISA mandates no minimum substantive
content for employee welfare benefit plans, and therefore a court
has no authority to draft the substantive content of such plans."
It is difficult to reconcile this principle with the notion that a
provision within an ERISA plan could be invalidated under a theory
of substantive unconscionability.
The Plaintiff argues that "the arbitration procedure is void
because its non-severable relief provision waives statutory
remedies." Specifically, she asserts that Section 502(a)(2) of
ERISA "authorizes a plan participant to restore any losses to the
plan resulting from each breach, and to restore to such plan any
profits of a fiduciary which have been made through use of assets
of the plan by the fiduciary." Argent replies that "nowhere does
ERISA provide that one participant has a right to sue for 'any
losses' to a plan or 'any profits' of a breaching fiduciary."
Judge Lanza finds that the Amendment, which authorizes participants
to "seek injunctive relief, including seeking an injunction to
remove or replace a Plan fiduciary even if such injunctive relief
has an incidental impact on other Employees, Participants, or
Beneficiaries," is valid and applies to the Plaintiff. It is not
clear that the fiduciary's duty to produce "any" losses or profits
comprehensively defines the Plaintiff's right to sue for
"appropriate" relief. At a minimum, none of her cited cases support
that proposition.
In light of the Supreme Court's instruction to make every effort to
harmonize federal statutes and read them together (in the present
case, the FAA's pro-arbitration policy and ERISA's right to
appropriate relief), Judge Lanza concludes that the Plan's
arbitration provision does not prevent the Plaintiff from
effectively vindicating statutory rights under ERISA. There is no
indication that ERISA bars plan participants from choosing to waive
collective action when an individualized remedy is still
available.
For these reasons, Argent's motion to compel arbitration is granted
and the Plaintiff must proceed on an individual basis.
Argent also requests attorneys' fees and costs pursuant to Section
17.9(e) of the Plan if the Court finds that the Plaintiff made an
"unsuccessful challenge to the validity, enforceability, or scope
of the Arbitration Procedure." The Plaintiff responds that even if
Argent prevails on its request to compel arbitration, such an
outcome would be a "purely procedural victory" that would not
entitle Argent to fees under 29 U.S.C. Section 1132(g). She also
argues that the Plan's fee -- shifting provision in Section 17.9(e)
diminishes her statutory fee-shifting rights under ERISA.
Judge Lanza concludes that the Plan's contractual fee-shifting
arrangement is preempted by Section 1132(g)(1) of ERISA. Permitting
judicial discretion and requiring success on the merits ensures, in
part, that grants of attorneys' fees do not dissuade litigants from
bringing colorable claims. Allowing Argent to rely on its
fee-shifting arrangement, which is (1) mandatory, (2) unilateral,
and (3) does not allow consideration of whether a party prevailed
substantively, would contravene these goals. And because Argent is
clear that it is not requesting fees under ERISA, but only under
Section 17.9(e), Argent's fee request is denied.
The Plaintiff asks the Court to "dismiss rather than stay the case
because arbitration will encompass the entire dispute." Argent asks
the Court for a stay during arbitration.
The FAA provides that when a court determines that a pending action
is "referable to arbitration under an agreement in writing for such
arbitration," the court "shall on application of one of the parties
stay the trial of the action until such arbitration has been had in
accordance with the terms of the agreement, providing the applicant
for the stay is not in default in proceeding with such
arbitration." Judge Lanza finds that both requirements are
satisfied -- he has determined that the underlying matter is
referrable to arbitration and one of the parties (Argent) has
applied for a stay. Thus, the stay request "shall" be granted.
Although the Ninth Circuit has suggested that district courts have
discretion to order dismissal even when one side has requested a
stay, Johnmohammadi v. Bloomingdale's, Inc., 755 F.3d 1072, 1074
(9th Cir. 2014), Judge Lanza declines in his discretion to do.
The action is stayed pending resolution of the arbitration
proceeding. The parties are ordered to file a joint notice every
six months concerning the status of the arbitration proceeding
(with the first report due six months from the issuance of the
Order) and to file a joint notice within 10 days of when the
arbitration proceeding concludes.
A full-text copy of the Court's July 27, 2022 Order is available at
https://tinyurl.com/mry39vzm from Leagle.com.
BEIERSDORF INC: Bangoura Seeks to Certify Class Action Settlement
-----------------------------------------------------------------
In the class action lawsuit captioned as Almany Ismael Bangoura,
individually and on behalf of all others similarly situated, v.
Beiersdorf, Inc., et al., Case No. 1:22-cv-00291-BMC (E.D.N.Y.),
the Plaintiff asks the Court to enter an order:
1. preliminarily approving the proposed class action
settlement;
2. preliminarily certifying the class for settlement
purposes; and
3. granting approval of the proposed notice plan.
Beiersdorf is a German multinational company that manufactures and
retails personal-care products and pressure-sensitive adhesives.
A copy of the Plaintiff's motion dated Aug. 1, 2022 is available
from PacerMonitor.com at https://bit.ly/3QnN8RP at no extra
charge.[CC]
The Plaintiff is represented by:
Jason P. Sultzer, Esq.
Joseph Lipari, Esq.
Daniel Markowitz, Esq.
THE SULTZER LAW GROUP P.C.
85 Civic Center Plaza, Suite 200
Poughkeepsie, NY 12601
Telephone: (845) 483-7100
Facsimile: (888) 749-7747
E-Mail: sultzerj@thesultzerlawgroup.com
liparij@thesultzerlawgroup.com
markowitzd@thesultzerlawgroup.com
- and -
Charles E. Schaffer, Esq.
David C. Magagna Jr., Esq.
LEVIN SEDRAN & BERMAN
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Telephone: (215) 592-1500
E-Mail: dmagagna@lfsblaw.com
cschaffer@lfsblaw.com
BEIS LLC: Faces Dorton Suit Over Unsolicited Telemarketing Calls
----------------------------------------------------------------
HOPE DORTON, individually and on behalf of all others similarly
situated, Plaintiff v. BEIS, LLC, Defendant, Case No. 154330486
(Fla. 13th Jud. Cir. Ct., July 29, 2022) is a class action brought
against the Defendant for its alleged violations of the Florida
Telephone Solicitation Act.
According to the complaint, the Defendant made telephonic sales
call to the Plaintiff's telephone number on or after July 1, 2021
without obtaining first the Plaintiff's prior express written
consent. In an attempt to promote its business, the Defendant
allegedly caused similar telephonic sales calls to be sent to
telephone numbers belonging to thousands of consumers in Florida
without their prior express written consent. In addition, the
Defendant's telephonic sales call involved an automated system for
the selection or dialing of telephone numbers or the playing of a
recorded message when a connection is complete, says the suit.
As a result of the Defendant's alleged unlawful conduct, the
Plaintiff and other similarly situated individuals were aggrieved
and were adversely affected and infringed upon their legal rights.
Also, each are entitled to recover damages, costs, and attorney's
fees from the Defendant, as well as an injunction against future
calls, the suit added.
BEIS, LLC is a consumer goods retailer. [BN]
The Plaintiff is represented by:
Benjamin W. Raslavich, Esq.
KUHN RASLAVICH, P.A.
2110 West Platt Street
Tampa, FL 33606
Tel: (813) 422-7782
Fax: (813) 422-7783
E-mail: ben@theKRfirm.com
BISCUITVILLE INC: Misclassifies Assistant Managers, Deryas Claims
-----------------------------------------------------------------
IHAB DERYAS, individually and on behalf of himself and all others
similarly situated, Plaintiffs v. BISCUITVILLE, INC., BV FUND I,
LLC, BV FUND II, LLC & BV FUND III, LLC, Defendants, Case No.
1:22-cv-00600 (M.D.N.C., July 29, 2022) is a collective action
complaint brought against the Defendants seeking all available
relief under the Fair Labor Standards Act of 1938.
The Plaintiff was employed by the Defendants from approximately
September 2018 to March 2022 as an "Assistant Manager" at the
Biscuitville located at 3201 Hillsborough Rd, Durham, NC 27705.
According to the complaint, the Plaintiff and other similarly
situated Assistant Managers were misclassified by the Defendants as
exempt from overtime compensation. The Defendants suffered and
permitted them to work more than 40 hours per week. However, the
Defendants denied them their lawfully earned overtime compensation
at the rate of one and on-half times their regular rates of pay for
all hours worked in excess of 40 per workweek. In addition, the
Defendants failed to accurately record, report and/or preserve
records of hours worked by the Plaintiff and other similarly
situated Assistant Managers, thereby failing to sufficiently
determine their exact wages, hours, and other conditions and
practice of employment, says the suit.
The Corporate Defendants are "holding companies" for the assets of
individual Biscuitville restaurants, and are owned, managed, and
controlled by the same person. [BN]
The Plaintiff is represented by:
Edward H. Maginnis, Esq.
Karl S. Gwaltney, Esq.
Garrett L. Davis, Esq.
MAGINNIS HOWARD
7706 Six Forks Rd., Ste. 101
Raleigh, NC 27615
Tel: (919) 524-0540
Fax: (919) 882-8763
E-mail: emaginnis@maginnishoward.com
kgwaltney@maginnishoward.com
gdavis@maginnishoward.com
BLUE CROSS: Amended Case Scheduling Order Entered in Pritchard
--------------------------------------------------------------
In the class action lawsuit captioned as C.P., by and through his
parents, Patricia Pritchard and Nolle Pritchard; and PATRICIA
PRITCHARD, v. BLUE CROSS BLUE SHIELD OF ILLINOIS, Case No.
3:20-cv-06145-RJB (W.D. Wash.), the Hon. Judge Robert J. Bryan
entered an amended case scheduling order modifying the Case
Schedule as follows:
-- The Plaintiffs will file their opening Motion for Class
Certification on or before August 25, 2022, and noted for
September 16, 2022.
-- The Defendant's opposition briefing, if any, shall be filed
on or before September 12, 2022.
-- The Plaintiffs' reply briefing, if any, will be filed on or
before September 16, 2022.
A copy of the Court's order dated July 29, 2022 is available from
PacerMonitor.com at https://bit.ly/3d30yo2 at no extra charge.[CC]
The Plaintiffs are represented by:
Eleanor Hamburger, Esq.
Richard E. Spoonemore, Esq.
SIRIANNI YOUTZ
SPOONEMORE HAMBURGER PLLC
- and -
Omar Gonzalez-Pagan, Esq.
Jennifer C. Pizer, Esq.
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
The Defendant is represented by:
Gwendolyn C. Payton, Esq.
John R. Neeleman, Esq.
Stephanie N. Bedard, Esq.
KILPATRICK TOWNSEND & STOCKTON LLP
BMW FINANCIAL: Final OK of Rawlings' $950K Settlement Recommended
-----------------------------------------------------------------
In the case, CHRISTOPHER RAWLINGS, on behalf of himself and others
similarly situated, Plaintiff v. BMW FINANCIAL SERVICES NA, LLC,
Defendant, Case No. 2:20-cv-02289 (S.D. Ohio), Magistrate Judge
Kimberly A. Jolson of the U.S. District Court for the Southern
District of Ohio, Eastern Division, recommends final approval of
the parties' Class Action Settlement and the entry of final
judgment.
The matter before the Court is the Joint Motion for Certification
of the Settlement Class and Final Approval of Class Action
Settlement. The matter came before the Court for a fairness hearing
on July 27, 2022.
On May 5, 2020, Representative Plaintiff Rawlings, on behalf of
himself and those similarly situated, filed his Collective and
Class Action Complaint. In the Action, the Representative Plaintiff
brought claims against the Defendant on behalf of himself and
others similarly situated under the Fair Labor Standards Act, 29
U.S.C. Sections 201-19; the Ohio Minimum Fair Wage Standards Act,
O.R.C. Sections 4111.01, 4111.03, and 4111.10; and the Ohio Prompt
Pay Act, O.R.C. Sections 4113.15. In addition to the Plaintiff, a
total of approximately 130 current/former employees opted in to the
lawsuit.
The Plaintiff's Complaint alleged that he and other similarly
situated employees who worked at the Defendant's Hilliard, Ohio
facility ("Associates") were not paid for all hours worked starting
with logging in to Defendant's computer systems, time tracking
system, and numerous virtual software applications/programs through
"Citrix." The Representative Plaintiff alleged that the Defendant
did not compensate them for certain principal work activities,
including the time they spent starting up, booting up, and logging
in to Defendant's various computer systems. He further alleged that
Defendant's failure to pay for the "bootup" time resulted in an
entitlement to additional unpaid overtime. The Defendant denied and
continues to deny these claims.
The parties reached a settlement upon stated terms and conditions,
which are set forth in the Class Action Settlement Agreement and
Release, that resolves all claims that were or could have been
asserted in the lawsuit. Based on its extensive investigation, the
Plaintiff's counsel is of the opinion that the terms set forth in
the Settlement Agreement are fair, reasonable, adequate, and in the
best interests of the class in light of the risk of significant
delay, costs, and uncertainty associated with litigation, including
Defendant's defense(s). The Court agrees.
The Settlement Agreement provides that the Defendant will create a
total settlement fund of $950,000 to resolve the lawsuit.
The parties agree that a settlement class should be certified as a
Federal Rule of Civil Procedure 23 class, defined as follows: All
non-exempt associates at BMW Financial Services' office in
Hilliard, Ohio during the period of May 5, 2018 to May 21, 2021,
who were required to boot up their computers, log into Citrix and
have the toolbar open prior to the scheduled start of their shifts
and who worked 40 or more hours in one or more workweeks.
The Settlement Fund will provide the Class Members with their pro
rata share of damages resulting from the Plaintiff's claims based
on the number of workweeks wherein they worked 40 or more hours
during the applicable lookback period in comparison to the total
number of workweeks wherein all Class Members worked 40 or more
hours during the applicable lookback periods. For the Class Members
who do not have damages, they will receive a minimum payment as
follows: Opt-In Plaintiff Class Members will receive a minimum
payment of $10.00 and the Rule 23 Class Members will receive a
minimum payment of $5. The Settlement Fund reflects the value of
approximately 10 minutes of additional work performed each day
during the applicable lookback period and, after deductions, is a
value of over 6 minutes of additional work performed each day.
In addition, the Class Members as well as future employees will
receive further relief because the Defendant has revised certain
policies and practices related to timekeeping that will ensure
compliance with the FLSA and Ohio's wage and hour laws. The
Settlement Fund also provides for the following distributions:
attorneys' fees, costs and expenses, and a service award in the
amount of $10,000 to the Representative Plaintiff.
In exchange for the individual settlement payments, the
Representative Plaintiff, the Opt-In Plaintiffs, and the Class
Members will release their wage and hour claims asserted in the
lawsuit and be mailed their proportionate share of the Settlement
Fund by the settlement administrator.
On March 15, 2022, the Court entered an Order granting provisional
certification of the Rule 23 class, granting preliminary approval
of the Settlement, and authorizing notice to the provisionally
certified class members. Since the Court entered the Preliminary
Order, the notice process was properly effectuated. On April 12,
2022, Analytics sent the approved "Notice of Class Action
Settlement" to the Class Members, consisting of a total of 1,283
Class Members. In addition, 129 notices were returned as
undeliverable, and, after utilizing skip-tracing, 98 were re-mailed
notices to updated addresses. Accordingly, 1,262 out of the 1,283
Class Members, or 98.36%, received the Notice.
The deadline to request exclusion or otherwise object to the
Settlement was June 11, 2022. Only five Class Members requested to
be excluded. Two of the five Class Members had no computed damages
and would have otherwise received a minimum payment; the total
payment to all five excluded provisionally certified Class Members
would have totaled $425.25. No Class Members objected to the
Settlement. Thus, 99.61% of the Class Members will be included in
the Settlement.
Judge Jolson finds that the Settlement meets the standard for final
settlement approval as to each factor. Therefore, she recommends
that parties' Joint Motion for Final Approval be granted as
follows:
1. The Settlement Agreement is fair, reasonable, and
adequate.
2. The terms and provisions of the Settlement are the product
of thorough, arms-length negotiations among experienced and
competent counsel. Approval of the Settlement will result in
substantial savings of time, money, and effort to the Court and the
parties and will further the interests of justice.
3. All Class Members are bound by the Judgment and by the
terms of the Settlement.
4. Nothing in the Settlement Agreement, the Judgment, or the
fact of the settlement constitutes any admission by any of the
parties of any liability, wrongdoing, or violation of law, damages
or lack thereof, or of the validity or invalidity of any claim or
defense asserted in the Action.
5. The Class Counsel have made application for an award of
$316,666.67 in attorneys' fees, $15,122.79 in expenses incurred in
the prosecution of the Action on behalf of themselves and the Class
Members, and $14,789 to be paid to the Settlement Administrator for
administering the Settlement. The Court finds the amounts requested
for fees and expenses to be fair, reasonable, and adequate under
the circumstances. The Court hereby awards $331,789.46 as
attorneys' fees and expenses to Class Counsel. Analytics will also
be paid $14,789 for its services in administering this Settlement.
Further, the Plaintiff is entitled to a fair, reasonable, and
justified service award of $10,000 pursuant to the Settlement
Agreement and to be paid from the Settlement Fund.
6. The Action is dismissed with prejudice;
7. Without affecting the finality of the Judgment, the Court
reserves jurisdiction over the implementation, administration, and
enforcement of this Judgment and the Settlement Agreement and all
matters ancillary thereto.
If any party objects to this Report and Recommendation, that party
may, within 14 days of the date of the Report, file and serve on
all parties written objections to those specific proposed finding
or recommendations to which objection is made, together with
supporting authority for the objection(s). The parties are
specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the
district judge review the Report and Recommendation de novo, and
also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation.
A full-text copy of the Court's July 27, 2022 Report &
Recommendation is available at https://tinyurl.com/yc3zzw25 from
Leagle.com.
BOOKING.COM: Unlawfully Records Cellular Communications, Suit Says
------------------------------------------------------------------
AARON SIANI, Individually and On Behalf of All Others Similarly
Situated v. BOOKING.COM (USA), INC., Case No. 2:22-cv-05154 (C.D.
Cal. July 26, 2022) is a class action for damages and injunctive
relief against the defendant for its unauthorized and illegal
recordings of conversations with Plaintiff without any notification
or warning the Plaintiff or Class Members, causing the Plaintiff
and Class Members damages in violation of the California Invasion
of Privacy Act.
The Defendant is an online travel agency for lodging reservations
and other travel products. On or about November 29, 2021, the
Plaintiff visited Booking.com's website to book a hotel room at the
MGM Grand in Las Vegas, Nevada.
Shortly before the scheduled booking, Plaintiff fell ill and was
therefore no longer able to travel. As a result, the Plaintiff
called Defendant's customer service line a couple of in an attempt
to cancel his hotel reservation. On or about January 26, 2022,
Plaintiff called Defendant's phone number (917) 421-7241 from his
cellular telephone number ending in "3299" for further assistance
with cancelling his reservation.
The Plaintiff was not informed at the outset of the call that the
call was or would be recorded. It was not until Plaintiff inquired
later during the call (i.e., approximately three quarters of the
way into the call) as to whether the call was recorded that
Plaintiff was informed that the call was in fact being recorded,
says the suit.
This came as a shock to the Plaintiff, and he was upset that
Defendant had not informed him that the call would be audio
recorded, the suit added.[BN]
The Plaintiff is represented by:
Abbas Kazerounian, Esq.
Pamela Prescott, Esq.
Jason A. Ibey, Esq.
KAZEROUNI LAW GROUP, APC
245 Fischer Avenue, Unit D1
Costa Mesa, CA 92626
Telephone: (800) 400-6808
Facsimile: (800) 520-5523
E-mail: ak@kazlg.com
Pamela@kazlg.com
jason@kazlg.com
BREAKING BREAD: Fails to Pay Minimum & OT Wages, Bryant Alleges
---------------------------------------------------------------
Sarah Bryant, On behalf of herself and others similarly situated v.
Breaking Bread Pizza Company Delaware; Breaking Bread Pizza
Company-Bellefontaine, LLC; and William York, Case No.
2:22-cv-02936-EAS-CMV (S.D. Ohio, July 26, 2022) seeks appropriate
monetary, declaratory, and equitable relief based on the
Defendants' willful failure to compensate Plaintiff and
similarly-situated individuals with minimum and overtime wages as
required by the Fair Labor Standards Act and the Ohio Minimum Fair
Wage Standards Act.
The Plaintiff brings this action on behalf of herself and similarly
situated current and former delivery drivers who worked for the
Defendants at any point in the past three years and who elect to
opt in pursuant to FLSA. He also further brings this action on
behalf of herself and similarly situated current and former
delivery drivers who worked for Defendants at any point in the past
three years within the State of Ohio and who elect to opt in
pursuant to O.R.C. 4111.14(K), and do not elect out pursuant to
O.R.C. section 2307.60 and Fed. R. Civ P. 23.
The Plaintiff worked for Defendants' Donato's Pizza franchise
located at 122 S Sandusky St., Delaware, OH 43015 from May 1, 2021
through the present.[BN]
The Plaintiff is represented by:
James L. Simon, Esq.
LAW OFFICES OF SIMON & SIMON
5000 Rockside Road
Liberty Plaza - Suite 520
Independence, OH
Telephone: (216) 525-8890
E-mail: james@simonsayspay.com
- and -
Michael L. Fradin, Esq.
THE LAW OFFICES OF MICHAEL L. FRADIN
8 N. Court St. Suite 403
Athens, Ohio 45701
Telephone: (847) 986-5889
Facsimile: (847) 673-1228
E-mail: mike@fradinlaw.com
BRIDGES OF HOPE: Mynatt Suit Seeks Minimum, OT Pay for Workers
--------------------------------------------------------------
R. NEAL MYNATT, INDIVIDUALLY AND ON BEHALF OF ALL OTHER SIMILARLY
SITUATED CURRENT AND FORMER EMPLOYEES v. BRIDGES OF HOPE
RESIDENTIAL RECOVERY CENTER, AN UNINCORPORATED ENTITY, BRIDGES OF
HOPE CHARITABLE TRUST, A GEORGIA NON-PROFIT CHARITABLE TRUST, AND
WINFRED MURPHY, AN INDIVIDUAL, Case No. 7:22-cv-00072-HL (M.D. Ga.,
July 26, 2022) seeks to recover unpaid minimum wages and unpaid
overtime compensation for the Plaintiff and others similarly
situated under the Fair Labor Standards Act.
The Plaintiff and members of the collective have been employed by
Bridges at various times and some are currently still employed by
Bridges and have continued to work for Bridges during such time.
Based on the information preliminarily available, and subject to
discovery in this cause, the Bridges did not compensate the
Plaintiff and those similarly situated employees of Bridges all
minimum wages and for all overtime hours worked in excess of 40 per
week during all times relevant to this Complaint, the lawsuit
says.
R. Neal Mynatt was employed by Defendants within the past three
years. The Plaintiff brings this action on behalf of the following
similarly situated persons:
"All current and former individuals classified as Office
Assistants, House Keeping Crew, Kitchen Crew, Maintenance Crew,
Ground Crew, Garden Crew, and Outside Work Crew at any of
Bridges' facilities at any time during the applicable
limitation's period covered by this Complaint (i.e. two years
for FLSA violations and, three years for willful FLSA
violations) up to and including the date of final judgment in
this matter, and who is the Named Plaintiff and those who elect
to opt-in to this action pursuant to the FLSA, 29 U.S.C. section
216(b)."
Bridges owns and operates group home facilities in several cities
across Georgia including Alamo, Chauncey, Homerville, Morven, and
Louisville.[BN]
The Plaintiff is represented by:
John W. Roper, Esq.
THE ROPER LAW FIRM
233 12th Street, Suite 602
Columbus, GA 31901
Telephone: (706) 596-5353
Facsimile: (706) 780-1014
E-mail: johnroper@roperlaw.com
- and -
J. Russ Bryant, Esq.
Robert E. Turner, IV, Esq.
Robert E. Morelli, III, Esq.
JACKSON SHIELDS YEISER HOLT
OWEN & BRYANT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 759-1745
E-mail: rbryant@jsyc.com
rturner@jsyc.com
rmorelli@jsyc.com
BUILD-A-BEAR WORKSHOP: Bid to Remand Ruby Suit to Cir. Court Denied
-------------------------------------------------------------------
In the lawsuit styled BENJAMIN RUBY, individually, and on behalf of
all others similarly situated, Plaintiff v. BUILD-A-BEAR WORKSHOP,
INC., Defendant, Case No. 4:21-CV-01152 JAR (E.D. Mo.), Judge John
A. Ross of the U.S. District Court for the Eastern District of
Missouri, Eastern Division, denies the Plaintiff's motion to remand
to circuit court.
The Plaintiff filed this putative class action against the
Defendant in the Circuit Court of St. Louis County, Missouri
(Benjamin Ruby v. Build-A-Bear Workshop, Inc., Case No.
21SL-CC03859 (21st Jud. Cir.)). He alleged the Defendant violated
the Telephone Consumer Protection Act by, inter alia, sending him
and others unwanted text messages.
The Defendant removed the case to this Court on Sept. 24, 2021,
based on federal question subject matter jurisdiction. The
Plaintiff did not oppose removal, and the parties proceeded with
discovery. He filed an amended class action complaint on April 20,
2022. The Defendant filed an answer to his amended complaint in
which it raised an affirmative defense challenging his standing.
In support of remand, the Plaintiff argues that the Defendant's
affirmative defense, together with its discovery responses denying
that he has suffered an injury-in-fact, an essential component of
Article III standing, creates doubt as to whether it has met its
burden of establishing the Court's subject matter jurisdiction, and
that any doubts about federal jurisdiction must be resolved in
favor of remand. Notably, he does not contend that he lacks
standing or that he did not suffer any injury. Indeed, he has
alleged in his amended complaint and discovery responses that he
suffered injuries as a result of receiving at least six unwanted
text messages from the Defendant, including aggravation and
annoyance, intrusions, and interference with his use and enjoyment
of his cell phone, Judge Ross notes.
In his initial disclosures, the Plaintiff states that he intends to
testify at deposition and trial regarding the extent of the
emotional distress he has sustained, and that he will make
available materials bearing on the nature and extent of injuries
suffered. Judge Ross states that the Plaintiff has not yet been
deposed. Thus, his alleged injuries remain subject to further
discovery.
In opposition to Plaintiff's motion, the Defendant argues that
raising the lack of standing as an affirmative defense does not
trigger remand, nor is it dispositive on the issue of standing
where, as here, the Plaintiff has repeatedly asserted that he has
suffered injuries, discovery is ongoing, and the Defendant has not
moved to dismiss the Plaintiff's claim for lack of standing.
Alternatively, the Defendant argues that numerous courts, including
district courts in the Eighth Circuit, have ruled that receipt of
one or more unwanted text messages satisfies the injury-in-fact
requirement for purposes of Article III standing. The Plaintiff
replies that the Defendant cannot ask the Court to find it has
jurisdiction over this dispute while at the same time affirmatively
asserting that he lacks standing.
Under the "well-pleaded complaint rule," federal jurisdiction
exists only when a federal question is presented on the face of the
plaintiff's properly pleaded complaint, Judge Ross opines, citing
Noel v. Laclede Gas Co., 612 F.Supp.2d 1051, 1057 (E.D. Mo. 2009).
In removing this case to federal court, the Defendant asserted
correctly that jurisdiction was proper pursuant to 28 U.S.C.
Section 1331 because the Plaintiff's action arises under federal
law, namely, the TCPA.
Judge Ross explains that the fact that the Defendant has raised
lack of standing as an affirmative defense does not deprive the
Court of jurisdiction under 28 U.S.C. Section 1331. The Defendant's
affirmative defense challenges the Plaintiff's standing to bring a
claim under the TCPA and his ability to identify a compensable
injury, not his Article III standing or the Court's jurisdiction.
For these reasons, the Plaintiff's motion to remand will be
denied.
A full-text copy of the Court's Memorandum and Order dated July 21,
2022, is available at https://tinyurl.com/3tdpzz4c from
Leagle.com.
BURLINGTON COAT: Fails to Properly Pay Overtime Wages, Rosa Claims
------------------------------------------------------------------
ARELIS ROSA, and other similarly situated individuals, Plaintiff v.
BURLINGTON COAT FACTORY WAREHOUSE CORPORATION, Defendant, Case No.
6:22-cv-01354 (M.D. Fla., July 31, 2022) brings this complaint as a
collective action against the Defendant to recover damages as a
result of its alleged violations of the Fair Labor Standards Act.
The Plaintiff was employed by the Defendant as a non-exempted,
full-time, hourly paid sales floor supervisor from approximately
August 23, 2021 to April 27, 2022.
The Plaintiff alleges that the Defendant failed to adequately
compensate him and other similarly situated employees for all hours
worked. Throughout his employment with the Defendant, the Plaintiff
worked a minimum of 40 or more hours, but he was paid for just 40
hours or less. The Plaintiff asserts that the Defendant improperly
deducted 2.5 hours of lunchtime every week, which constitute 2.5
unpaid overtime hours per week. As a result, the Defendant
willfully failed to pay him overtime wages at the rate of one and
one-half times his regular rate of pay for all hours worked in
excess of 40 per workweek, the Plaintiff asserts.
Burlington Coat Factory Warehouse Corporation is a retail business
operating as a department store. [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
BUTTERBALL LLC: Figueroa's NCWHA Claims Dismissed With Prejudice
----------------------------------------------------------------
In the case, OSVALDO FIGUEROA, Plaintiff v. BUTTERBALL, LLC,
Defendant, Case No. 5:20-CV-585-D (E.D.N.C.), Judge James C.
Denver, III, of the U.S. District Court for the Eastern District of
North Carolina, Western Division, grants in part and denies in part
Butterball's motion to dismiss.
Judge Denver dismisses with prejudice the Plaintiff's claims under
the North Carolina Wage and Hour Act.
On Sept. 15, 2021, the Court granted Butterball's motion to dismiss
Osvaldo Figueroa's first amended complaint and granted Figueroa
leave to file a second amended complaint. On Oct. 4, 2021, Figueroa
filed a second amended complaint against Butterball alleging claims
under the Fair Labor Standards Act and the North Carolina Wage and
Hour Act.
Butterball, a turkey producer, is a limited liability corporation
with its principal place of business in Garner, North Carolina.
Figueroa is a resident of Clinton, North Carolina, who worked as a
poultry loader/catcher at Butterball's processing plant in Warsaw,
North Carolina, from approximately May 8, 2017, to May 2019. His
work catching and loading turkeys was "unskilled, repetitive, and
rote." He had no authority over the hiring and firing of other
employees, and he did not manage other employees.
Mr. Figueroa typically worked the night shift six days per week,
from 6:30 p.m. until 9:30 a.m. the next day. Approximately once per
month, the loaders/catchers' machines would break, causing him to
work until 2:00 p.m. or 3:00 p.m. Butterball provided "a one-hour,
uninterrupted lunch break," but the "lunch break depended on the
general pace of the production line." Figueroa alleges he worked
approximately 90 hours per week.
During this litigation, Figueroa has given contradictory accounts
of the compensation Butterball promised him at the beginning of his
employment. In his original complaint, Figueroa alleged that
Butterball "instructed him he would be paid on a piece-rate basis
at a rate of $12 per truck load of turkeys" and would receive an
overtime premium for all hours worked over 40 in a workweek. He
alleged he "loaded approximately 14-16 trucks" in a typical shift
and "18-20 trucks per shift" during the holiday season. In his
first amended complaint, Figueroa gave a similar account -- i.e.,
that Butterball "instructed him he would be paid on a piece-rate
basis at a rate of $12 per truck load of turkeys," and that his
manager, Rocco, and a human resources representative told Figueroa
he would receive an overtime premium for all hours worked over 40
in a workweek. He again alleged he loaded approximately 14 to 16
trucks in a typical shift, and loaded approximately 18 to 20 trucks
per shift during the holiday season.
In his second amended complaint, Figueroa tells a completely
different story. He now alleges that Rocco and the HR
representative told him "he would be paid an hourly rate and a
premium rate of time and one-half his regular hourly rate for all
hours over 40 per week." The HR representative translated Rocco's
explanation of the terms of Figueroa's employment into Spanish for
Figueroa. Figueroa alleges it was his "understanding he would be
compensated on an hourly basis, especially since there was no
proper explanation of the piece-rate compensation system in
conjunction with the promise to be compensated overtime for hours
worked over 40 per week." He does not allege, however, what Rocco
and the HR representative told him his hourly rate would be.
Although Figueroa has previously estimated the number of trucks he
loaded per shift, he now says "no record exists documenting the
number of loads" he completed. According to Figueroa, Butterball
required Figueroa to track his daily hours worked, and Butterball
reported what Figueroa characterizes as an hourly rate on his pay
stub.
Figueroa's pay stubs state that a portion of Figueroa's wages were
"LoadTrip" earnings. He alleges he did not understand what
"LoadTrip" calculations were used to determine his pay, and he
thought he was being paid hourly plus an overtime premium. He
alleges that Butterball routinely paid him less than his regular
hourly rate plus any applicable overtime premium for hours worked
above 40 in a workweek.
Figueroa alleges that Butterball failed to pay proper overtime
wages under the FLSA. He brings his FLSA claim as a collective
action on behalf of himself and similarly situated employees. He
also alleges NCWHA violations. Figueroa brings his NCWHA claims as
a class action on behalf of himself and all similarly situated
employees. He seeks collective action certification, class
certification, and monetary damages.
On Nov. 1, 2021, Butterball moved to dismiss the second amended
complaint under Federal Rule of Civil Procedure 12(b)(6) and filed
a memorandum in support. On Nov. 23, 2021, Figueroa responded in
opposition and Butterball replied on Dec. 10, 2021.
Initially, Butterball argues the Court should treat as judicial
admissions the statements in Figueroa's first amended complaint
that Figueroa contradicts in his second amended complaint.
Alternatively, it argues the Court should strike the inconsistent
pleadings from the second amended complaint. Figueroa disagrees.
Judge Denver considers the second amended complaint under the Rule
12(b)(6) standard, and declines to treat the representations in
Figueroa's first amended complaint as conclusive judicial
admissions or to strike the inconsistent allegations, in his second
amended complaint. Nonetheless, he says, Figueroa's factual
representations in the first amended complaint were serious
statements made to the Court, and Butterball may rely on them as
evidence in future proceedings in this case consistent with the
Federal Rules of Evidence. Likewise, Butterball may use the
contradictory statements as admissions when examining Figueroa.
Thus, Judge Denver addresses Figueroa's second amended complaint on
the merits under the Rule 12(b)(6) standard.
Butterball argues that even taking as true the allegations in
Figueroa's second amended complaint, Figueroa fails to state a
claim. To survive a motion to dismiss, the Plaintiffs must
plausibly allege sufficient details concerning the "length and
frequency of their unpaid work" to allow the court to reasonably
infer that they worked more than 40 hours in a given workweek. They
may meet this initial standard by estimating the length of their
average workweek during the applicable period and the average rate
at which they were paid, the amount of overtime wages they believe
they're owed, or any other facts that will permit the Court to find
plausibility."
Judge Denver holds that Figueroa plausibly alleges that Butterball
regularly owed him overtime pay because Figueroa worked more than
40 hours per week and even assuming Butterball used a piece-rate
system to calculate Figueroa's pay, Figueroa has identified a week
during which Butterball underpaid him. As for whether Butterball
knew or should have known Figueroa worked overtime, Figueroa
plausibly alleges Butterball required him to clock in and out, and
that Butterball "maintains records that document all hours worked
by Plaintiffs each pay period."
Judge Denver declines to resolve whether Butterball promised to pay
Figueroa hourly or piece-rate and what the significance of either
promise would be. At this stage, Figueroa needed to plausibly
allege that he worked overtime hours without compensation and that
Butterball knew or should have known that he worked overtime but
failed to compensate him for his overtime hours. Viewing the second
amended complaint, the pay stubs, and all reasonable inferences
drawn therefrom in the light most favorable to Figueroa, Figueroa's
FLSA claim narrowly ekes across the plausibility line. Whether it
will survive Butterball's inevitable motion for summary judgment is
an issue for another day.
Next, Butterball argues that Figueroa has not plausibly alleged an
NCWHA claim. For the reasons stated in the court's Sept. 15, 2021
order, the NCWHA's exemption from the overtime provision of the
NCWHA for persons covered by the FLSA bars Figueroa from recovering
overtime wages under the NCWHA. However, Figueroa may state an
NCWHA pay day claim if he alleges a separate and distinct claim
from his FLSA overtime claim.
Figueroa does not allege what the HR representative and Rocco told
him his hourly wages would be at the beginning of his employment.
Moreover, he provides no explanation of how or why his hourly rate
would fluctuate between $18.08 and $18.54 per hour. Figueroa's
allegations concerning his hourly wages for his NCWHA claim are
contradictory and fail to state a claim. As for Figueroa's
allegations that Butterball violated the NCWHA's notice
requirements pursuant to N.C. Gen. Stat. Section 95-25-13, they
fail to state a claim for the reasons stated in the court's Sept.
15, 2021 order. Assuming that is true, Butterball provided Figueroa
with access to policies and practices regarding promised wages
through a statutorily authorized means. Thus, the claim fails, and
the court dismisses with prejudice Figueroa's NCWHA claims.
Lastly, Butterball argues that the Court should strike Figueroa's
collective action allegations or require him to provide a more
definite statement. Figueroa has not yet filed a motion for
conditional certification under 29 U.S.C. Section 216(b).
Judge Denver declines to address the collective action allegations
at this stage and will address them if Figueroa files a motion to
certify a collective action and the issue is fully briefed. Nothing
in his order determines whether the Court will allow this case to
proceed as a collective action.
In sum, Judge Denver dismisses with prejudice the Plaintiff's NCWHA
claims. The Plaintiff may proceed with his FLSA claim. The parties
will confer and file a discovery plan pursuant to Federal Rule of
Civil Procedure 26.
A full-text copy of the Court's July 27, 2022 Order is available at
https://tinyurl.com/mr872d6d from Leagle.com.
C.R. ENGLAND: Hagest Suit Alleges Unpaid Wages for Drivers
----------------------------------------------------------
MARC HAGEST and WAYNE SUBER, individually and on behalf of all
others similarly situated, Plaintiffs v. C.R. ENGLAND INC. and DOES
1-50, inclusive, Defendants, Case No. 37-2022-00029465-CU-OE-CTL
(Cal. Super., Los Angeles Cty., July 26, 2022) is a class action
against the Defendants for violations of California Labor Code
including failure to pay minimum wages, failure to provide meal
periods or pay in lieu thereof, failure to provide rest breaks or
pay in lieu thereof, failure to pay all wages earned and owed upon
separation from employment, failure to provide accurate itemized
wage statements, failure to provide a rest day in seven, and
failure to reimburse necessary business expenses.
Plaintiffs Hagest and Suber were employed by the Defendants as
drivers until the end of their employment in September 2021 and
June 2021, respectively.
C.R. England Inc. is a logistics company doing business in
California. [BN]
The Plaintiffs are represented by:
James R. Hawkins, Esq.
Gregory Mauro, Esq.
Michael Calvo, Esq.
9880 Research Drive, Suite 800
Irvine, CA 92618
Telephone: (949) 387-7200
Facsimile: (949) 387-6676
E-mail: James@jameshawkinsaplc.com
Greg@jameshawkinsaplc.com
Michael@jameshawkinsaplc.com
CAMI FEEK: Filing of Class Status Bid Due May 5, 2023
-----------------------------------------------------
In the class action lawsuit captioned as DAMARIO RASHEED STERLING,
et al., v. CAMI L FEEK, Case No. 3:22-cv-05250-DGE (W.D. Wash.),
the Hon. Judge entered an order regarding class certification
deadlines as follows:
-- Deadline for joining additional January 31, 2023
parties and to amend pleadings:
-- Plaintiffs' disclosure of experts February 14, 2023
related to class certification:
-- Defendant's disclosure of experts March 14, 2023
related to class certification:
-- Plaintiffs' disclosure of rebuttal March 28, 2023
experts related to class
certification:
-- Deadline to complete expert April 11, 2023
deposition:
-- Plaintiffs' motion for class May 5, 2023
certification due:
-- Defendant's response to June 12, 2023
Plaintiffs' motion for class
certification due:
-- Plaintiffs' response due: June 23, 2023
A copy of the Court's order dated July 29, 2022 is available from
PacerMonitor.com at https://bit.ly/3Q1VdvT at no extra charge.[CC]
CAPITAL ONE: Court Denies Lavender's Bid for Certification
----------------------------------------------------------
In the class action lawsuit captioned as SUZANNE LAVENDER v.
CAPITAL ONE BANK USA, N.A., EXPERIAN INFORMATION SOLUTIONS, INC.,
Case No. 2:21-cv-04739-WB (E.D. Pa.), the Hon. Judge Wendy
Beetlestone entered an order denying the Plaintiff's motion for
certification Under Fed. R. Civ. P. 54.
Capital One operates as a bank. Experian operates as an information
services company.
A copy of the Court's order dated July 29, 2022 is available from
PacerMonitor.com at https://bit.ly/3zr1ZnC at no extra charge.[CC]
CASPER SLEEP: Hwang Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Casper Sleep Inc. The
case is styled as Jenny Hwang, on behalf of herself and all others
similarly situated v. Casper Sleep Inc., Case No. 1:22-cv-04437
(S.D.N.Y., July 28, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Casper Sleep -- https://casper.com/ -- is an e-commerce company
that sells sleep products online and in retail locations.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
CEBRIDGE TELECOM: Baker Sues Over Hidden Programming Surcharges
---------------------------------------------------------------
ANNETTE BAKER, JEFF LAMOREE, and KATHRYN MAJOR, individually and on
behalf of all others similarly situated, Plaintiffs v. CEBRIDGE
TELECOM CA, LLC (D/B/A SUDDENLINK AND OPTIMUM); and ALTICE USA,
INC., Defendants, Case No. 1:22-cv-04346 (N.D. Cal., July 27, 2022)
is a class action against the Defendants for violations of the
Consumers Legal Remedies Act, California's False Advertising Law,
and California's Unfair Competition Law.
The case arises from a deceptive pricing scheme perpetrated by
Altice against its California television service customers. On its
Suddenlink website, Altice explicitly advertised and represented to
consumers that the advertised prices for its television service
plans included all of the monthly service charges, and that the
monthly rate would be fixed during the specified promotional period
or term contract. Altice did not disclose or adequately disclose
the existence or the amount of the Broadcast Station Programming
Surcharge or Sports Programming Surcharge prior to or at the time
customers signed up for service. Altice utilized its hidden
additional service charges, the Broadcast Station Programming
Surcharge and the Sports Programming Surcharge to: (1) charge more
per month for the television service itself without having to
advertise the higher prices; and (2) as a way to covertly increase
customers' rates, even during their promised fixed-rate promotional
period or term contract, says the suit.
Altice USA, Inc., is a provider of internet, television, and
telephone services, with its principal place of business in New
York.
Cebridge Telecom CA, LLC is a telecommunications company, with its
principal place of business in New York. [BN]
The Plaintiffs are represented by:
Daniel M. Hattis, Esq.
Paul Karl Lukacs, Esq.
HATTIS & LUKACS
11711 SE 8th Street, Suite 120
Bellevue, WA 98005
Telephone: (425) 233-8650
Facsimile: (425) 412-7171
E-mail: dan@hattislaw.com
pkl@hattislaw.com
- and –
Stephen P. DeNittis, Esq.
DENITTIS OSEFCHEN PRINCE, P.C.
5 Greentree Centre, Suite 410
525 Route 73 N.
Marlton, NJ 08057
Telephone: (856) 797-9951
Facsimile: (856) 797-9978
E-mail: sdenittis@denittislaw.com
CHARLES SCHWAB: Scheduling Order Entered in Wright Class Suit
-------------------------------------------------------------
In the class action lawsuit captioned as ROBERT WRIGHT v. CHARLES
SCHWAB & CO., INC., Case No. 20-cv-05281-LB (N.D. Cal.), the Hon.
Judge Laurel Beeler entered a scheduling order as follows:
Case Date
-- Filing date for motion October 3, 2022
for summary judgment:
-- Filing date for opposition Nov. 7, 2022
to motion for summary judgment:
-- Filing date for reply: Nov. 28, 2022
-- Hearing date for summary- Dec. 15, 2022
judgment motion/further case-
management-conference
-- Filing date for class- Feb. 13, 2023
certification motion:
-- Filing date for opposition March 13, 2023
to class-certification
motion/further case-management-
conference:
The Charles Schwab Corporation is an American multinational
financial services company. It offers banking, commercial banking,
investing and related services including consulting, and wealth
management advisory services to both retail and institutional
clients.
A copy of the Court's order dated July 29, 2022 is available from
PacerMonitor.com at https://bit.ly/3SshaFV at no extra charge.[CC]
CHICK-FIL-A INC: S.D. New York Dismisses Pittman's 1st Amended Suit
-------------------------------------------------------------------
In the case, ANEISHA PITTMAN and SUSAN UKPERE, Plaintiffs, v.
CHICK-FIL-A, INC., Defendant, Case No. 21 Civ. 8041 (VM)
(S.D.N.Y.), Judge Victor Marrero of the U.S. District Court for the
Southern District of New York:
(i) grants Chick-fil-A's motion to dismiss the First Amended
Complaint under Federal Rules of Civil Procedure 12(b)(2)
and 12(b)(6); and
(ii) denies the Plaintiffs' request for leave to file a
proposed Second Amended Complaint.
Plaintiffs Pittman and Ukpere bring the putative class action, on
behalf of themselves and all others similarly situated, against
Chick-fil-A ("CFA"), alleging violations of the New York General
Business Law, violations of the New Jersey Consumer Fraud Act,
breach of contract, and unjust enrichment.
CFA is a Georgia corporation that operates a chain of restaurants
throughout the United States. Pittman and Ukpere are citizens of
New York and New Jersey, respectively. The Plaintiffs allege that
they ordered food delivery through CFA's website, and that CFA
allegedly promised to provide a flat, low-price delivery fee for
online orders. Notably, CFA's checkout screen displayed separate
line items for the following amounts that customers were charged:
(1) the subtotal, which reflected the cost of the food items
selected, (2) sales tax, (3) delivery fee, (4) tip, and (5) total,
which adds the other line items.
The Plaintiffs allege that the Food Markup was not disclosed on
CFA's app or website and is actually a hidden delivery fee that is
deceptive in light of its purported representation of a flat,
low-cost delivery fee. The crux of the FAC's theory is that the
Delivery Fee is not actually $2.99 or $3.99 because the functional
cost of having food delivered is the Delivery Fee plus the Food
Markup.
On Aug. 29, 2020, from within New Jersey, Ukpere placed an online
delivery order, through CFA's website, from a CFA restaurant
located in New Jersey. Prior to Ukpere placing the order, the CFA
website stated the Delivery Fee was $2.99. Ukpere alleges that her
order contained the Food Markup, and that the food would have cost
25 to 30% less if she picked it up from a CFA location. She further
alleges that she would not have placed her order if she knew CFA
applied the Food Markup. Ukpere placed similar orders on Nov. 4,
2020, and Feb. 17, 2021, from a CFA restaurant in New Jersey. For
these later orders, Ukpere similarly alleges that the CFA website
stated the Delivery Fee was $2.99, that CFA applied the Food Markup
to her orders, and that she would not have placed her order if she
knew CFA applied the Food Markup.
Separately, on Nov. 13, 2020, from within New York, Pittman placed
a delivery order, through CFA's website, from a CFA restaurant
located in New York. According to Pittman, prior to placing the
order, the CFA website stated the Delivery Fee was $3.99. Like
Ukpere, Pittman alleges that the cost of the food she ordered
contained the Food Markup, that the food would have cost 25 to 30%
less if she picked it up from a CFA location, and that she would
not have placed her order if she knew CFA applied the Food Markup.
Consistent with the Court's Individual Practices, on Dec. 6, 2021,
CFA filed a letter regarding an anticipated motion to dismiss the
initial complaint. Soon after, the Plaintiffs filed the FAC.
Subsequently, on Dec. 27, 2021, CFA filed another letter regarding
an anticipated motion to dismiss the FAC. On Jan. 3, 2022, the
Plaintiffs filed a response opposing dismissal.
On Jan. 14, 2022, CFA advised the Court that the parties' letter
exchange failed to resolve their dispute and requested a conference
regarding a proposed motion to dismiss. Upon the Court's order, CFA
filed a supplemental letter addressing any grounds for dismissing
Pittman's NYGBL claim, which were not raised in the parties'
initial letter exchange. The Plaintiffs again opposed dismissal,
and subsequently requested leave to file the SAC. CFA asserts that
an amendment would be futile because the proposed SAC fails to cure
the deficiencies in the FAC.
The Court denied the request for a conference and directed CFA to
file a motion to dismiss based on the arguments raised in the
parties' letter exchange. On June 22, 2022, CFA filed the Motion,
the Plaintiffs filed their opposition on June 29, 2022, and CFA
filed its reply on July 6, 2022.
CFA argues that Ukpere's claims should be dismissed for lack of
personal jurisdiction under Rule 12(b)(2), and alternatively that
the Plaintiffs' claims should be dismissed for failure to state a
claim under Rule 12(b)(6). It further argues that the Plaintiffs'
nationwide class allegations should be struck because "the FAC
fails to allege facts sufficient to identify the state laws that
govern, which is necessary for the Court to undertake its rigorous
predominance analysis." Lastly, the Plaintiffs request leave to
file a proposed SAC to bolster their claims.
Judge Marrero first addresses whether personal jurisdiction exists
over Ukpere's claims because "a court facing challenges as to both
its jurisdiction over a party and the sufficiency of any claims
raised must first address the jurisdictional question." He holds
that the Court lacks general jurisdiction over Ukpere's claims. The
only allegations in the FAC regarding CFA's contacts with New York
are related to Pittman's purchases. But allegations about Pittman's
purchases, by themselves, do not establish that CFA's contacts with
New York are so systematic and continuous "as to render it
essentially at home" in New York.
Judge Marrero also holds that Ukpere fails to establish specific
jurisdiction because her claims have no contacts with New York. Her
argument that she "may have" received CFA's marketing or placed an
order in New York is purely speculative. Moreover, she is in the
best possession to obtain and present facts about whether she
ordered from a CFA restaurant in New York.
For these reasons, Ukpere's claims are dismissed for lack of
personal jurisdiction.
CFA next moves to dismiss Pittman's claims for a violation of
Section 349 of the NYGBL, breach of contract, and unjust
enrichment.
Judge Marrero dismisses Pittman's NYGBL claim for failure to allege
a cognizable injury. He finds that in essence, her theory is that
she "may not have acceded to the Food Markup had CFA provided a
different disclosure about the charge." But this statement amounts
to an allegation of deception as both act and injury, which is
insufficient to plead a claim under Section 349.
The FAC fails to set forth the specific or essential terms of a
contract between Pittman and CFA. Pittman's allegations amount to a
"simple characterization of the nature of the promise," which is
insufficient to allege a breach of contract. Without more, the FAC
does not present, in a nonconclusory fashion, the specific terms of
any purported agreement between Pittman and CFA. Similarly, Pittman
does not identify the specific provisions of the purported contract
that prevented CFA from applying the Food Markup, and that CFA in
turn violated by applying the Food Markup.
As for Pittman's final claim, the unjust enrichment, Judge Marrero
dismisses it as duplicative. Pittman's unjust enrichment claim is
premised on the same factual allegations as her other claims, and
she has not alleged any damages separate from those other claims.
Since all of the Plaintiffs' claims are dismissed, Judge Marrero
does not address CFA's arguments regarding the sufficiency of their
nationwide class action allegations. He turns to the Plaintiffs'
request, pursuant to Rule 15(a), for leave to file to the proposed
SAC.
The Plaintiffs' request identifies four main topics that the
proposed SAC addresses: (1) details about CFA's allegedly deceptive
marketing and contractual representations; (2) facts about CFA
previously offering a flat $4.99 delivery fee, and lowering the
delivery fee early in the COVID-19 pandemic; (3) allegations that
CFA allegedly designed its app and website to make it difficult for
users to identify the Food Markup; and (4) allegations that CFA
adopted the Food Markup because it was aware that consumers
preferred lower delivery fees. CFA argues that amendment would be
futile because the proposed SAC does not remedy the deficiencies
identified and would therefore also warrant dismissal.
Preliminarily, Judge Marrero holds that the Plaintiffs' proposed
amendments do not buttress any basis for personal jurisdiction over
Ukpere's claims, and therefore Ukpere's claims still warrant
dismissal. As for Pittman's claims, he agrees that amendment is
futile because the proposed SAC fails to cure the FAC's
deficiencies. As for Pittman's contract claim, the proposed SAC
reiterates the FAC's characterization of "promises" and
"representations" about the Delivery Fee, which does not present,
in a nonconclusory fashion, the specific terms of any purported
agreement with CFA. Relatedly, the proposed SAC fails to identify
the specific terms of any purported contract that CFA violated.
Lastly, Pittman's unjust enrichment claim is again premised on the
same facts and damages as her other claims, which means this claim
continues to be duplicative.
The Clerk of Court is directed to terminate all motions and close
the case.
A full-text copy of the Court's July 27, 2022 Decision & Order is
available at https://tinyurl.com/yc5p4tfx from Leagle.com.
CHIEFTAIN COATING: FLSA Collective Gets Conditional Status
----------------------------------------------------------
In the class action lawsuit captioned as COLLETTE YOUNG et al., v.
CHIEFTAIN COATING, LLC, et al., Case No. 2:20-cv-10520-DPH-APP
(E.D. Mich.), the Hon. Judge Denise Page Hood entered an order
granting motion for conditional certification and notice pursuant
to the Fair Labor Standards Act (FLSA) as follows:
1. conditionally certifying the proposed FLSA Collective;
2. appointing the Plaintiffs' counsel, Jesse Young, as
counsel for the proposed Collective;
3. approving the Plaintiffs' proposed form of notice, subject
to modification of the opt-in notices as noted above, and
authorizing notice via mail and email;
4. requiring the Defendants to identify and produce the
names, phone numbers, last known addresses, email
addresses of all proposed Collective members in a
computer-readable format within 14 days; and
5. allowing members of the proposed Collective 45 days from
the date the notice is mailed to join this action.
A copy of the Court's order dated July 29, 2022 is available from
PacerMonitor.com at https://bit.ly/3BIPYgf at no extra charge.[CC]
CHIPPEWA RESOURCES: Fails to Pay Overtime Wages, Toulou Claims
--------------------------------------------------------------
CHASE TOULOU, individually and on behalf of others similarly
situated, Plaintiff v. CHIPPEWA RESOURCES INCORPORATED, Defendant,
Case No. 1:22-cv-00131-CRH (D. North Dakota, July 29, 2022) brings
this complaint as a collective and class action complaint against
the Defendant to recover unpaid overtime wages and other damages
under the Fair Labor Standards Act and the North Dakota Minimum
Wage and Work Conditions (North Dakota Wage Laws).
The Plaintiff has worked for the Defendant as a Pipeline Inspector
from approximately 2016 through 2021.
The Plaintiff asserts that he and other similarly situated workers
regularly worked more than 40 hours per week. However, the
Defendant did not pay them overtime compensation at the rate of one
and one-half times their regular rate of pay for all hours worked
in excess of 40 per workweek. Instead, they were only paid a flat
amount for each day worked without any overtime compensation, the
Plaintiff alleges.
Chippewa Resources Incorporated is an independent oil and natural
gas production company. [BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Taylor Montgomery, Esq.
JOSEPHSON DUNLAP, LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Tel: (713) 352-1100
Fax: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
tmontgomery@mybackwages.com
CHUCK'S LAWN: Black Files Suit Over Landscapers' Unpaid OT Wages
----------------------------------------------------------------
The case, SETH C. BLACK, and other similarly situated individuals,
Plaintiff v. CHUCK'S LAWN SERVICE & LANDSCAPING, INC., HOWARD
GARRISON, and MICHELLE GARRISON, individually, Defendants, Case No.
6:22-cv-01355 (M.D. Fla., July 31, 2022) arises from the
Defendants' alleged failure to pay overtime wages in violations of
the Fair Labor Standards Act.
The Plaintiff was employed by the Defendants as a non-exempted,
full-time landscaper from approximately May 1, 2021 to May 20,
2022.
The Plaintiff claims that he consistently and regularly worked 50
hours or ore. However, the Defendant did not pay his overtime
compensation at the rate of one and one-half times his regular rate
of pay for all hours worked in excess of 40 per workweek. Although
he as paid for all his hours worked, but at his regular rate only,
says the Plaintiff.
The Plaintiff brings this complaint as a collective action on
behalf of himself and all other similarly situated landscaper
seeking to recover all unpaid overtime compensation, liquidated
damages, reasonable attorney's fees and litigation costs, and other
relief as the Court deems equitable and just.
Chuck's Law Service & Landscaping, Inc. is a full-service
contractor providing lawn care and landscaping services and related
services. Howard Garrison and Michelle Garrison are co-owners 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
CJ PRODUCTS INC: Dicks Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against CJ Products, Inc. The
case is styled as Victoria Dicks, on behalf of herself and all
others similarly situated v. CJ Products, Inc., Case No.
1:22-cv-06342 (S.D.N.Y., July 26, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
CJ Products, Inc. doing business as Pillow Pets --
https://www.pillowpets.com/ -- is a toy manufacturer in Oceanside,
California.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
CLEAN HARBORS: Fails to Pay Minimum Wages & OT, Alba Alleges
------------------------------------------------------------
ARMANDO ALBA, individually and on behalf of other persons similarly
situated v. CLEAN HARBORS ENVIRONMENTAL SERVICES, INC. and DOES 1
through 50, Case No. 2:22-cv-05163 (C.D. Cal., July 26, 2022) is a
class action and PAGA law enforemcement represenative action
pursuant to Fed. R. Civ. P. Rule 23, seeking unpaid wages,
overtime, damages, liquidated damages, waiting time penalties,
remibursement for expenses, restitution, penalites and attonreys'
fees and costs under the California Labor Code.
Clean Harbors hired Plaintiff in January of 2017 as a non-exempt
employee to perform work for an energy company as an InSite
Technician. During his employment, Clean Harbors would only
compensate him and those similarly situated for their scheduled
hours worked despite the fact that they were frequently required to
travel long distances to their varying worksites. When he and those
similarly situated worked, they would not get paid overtime for
work performed over eight hours in a day, and they would not always
receive proper double time payments when they worked over 12 hours
a day, says the suit.
The Plaintiff brings this action on behalf of himself and on behalf
of all other similarly situated persons as a class action pursuant
to Fed. R. Civ. P. Rule 23. The members of the Class are defined as
follows:
Unpaid Overtime Wage Class: All current and former non-exempt
employees of Clean Harbors who worked over eight hours a day
and
were not paid overtime within the last three years prior to
June
11, 2019 until the date of entry of judgment by the Court.
Rest Break Class: All current and former non-exempt employees
of
Clean Harbors who, at any time within the last three years prior
to June 11, 2019 until the date of entry of judgment by the
Court, were not authorized or permitted to take a third rest
when working over 10 hours in a day.
Meal Period Class: All current and former non-exempt employees
of Clean Harbors who, at any time within the last three years
prior to June 11, 2019 until the date of entry of judgment by
the Court, were not provided a second meal period after working
more than 10 hours in a day.
Late Pay Class: All former non-exempt employees of Clean
Harbors
who, at any time within the last three years prior to June 11,
2019 until the date of entry of judgment by the Court, were not
paid all their wage earned after separation of employment from
Clean Harbors.
Expense Reimbursement Class: All current and former non-exempt
employees of Clean Harbors who, at any time within the last
three years prior to June 11, 2019 until the date of entry of
judgment by the Court, were not reimbursed for all their work
related expense.
Minimum Wage Class: All current and former non-exempt employees
of Clean Harbors who were not paid minimum wage within the last
three years prior to June 11, 2019 until the date of entry of
judgment by the Court.
Clean Harbors is an American provider of environmental and
industrial services, including hazardous waste disposal for
companies, including Fortune 500 companies, small waste generators
and federal, state, provincial and local governments.[BN]
The Plaintiff is represented by:
Evan Selik, Esq.
Christine Zaouk, Esq.
McCATHERN LLP
523 West Sixth Street, Suite 830
Los Angeles, CA 90014
Telephone: (213) 225-6150
Facsimile: (213) 225-6151
E-mail: eselik@mccathernlaw.com
czaouk@mccathernlaw.com
COCUSOCIAL INC: Slade Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been against filed Cocusocial, Inc. The
case is styled as Linda Slade, individually and as the
representative of a class of similarly situated persons v.
Cocusocial, Inc., Case No. 1:22-cv-06408 (S.D.N.Y., July 28,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Cocusocial, Inc. -- https://cocusocial.com/ -- empower chefs and
restaurants to host a variety of cooking classes, baking classes,
wine tasting workshops and mixology classes.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
COUNTERTOP FACTORY: Conditional Status of Employee Class Sought
---------------------------------------------------------------
In the class action lawsuit captioned as Josephine Havey,
Individually and on Behalf of All Others Similarly Situated, v. The
Countertop Factory Southwest, LLC, Case No. 4:22-cv-00242-SHR (D.
Ariz.), the Plaintiff asks the Court to enter an order:
A. Conditionally certifying the collective proposed by
the Plaintiff:
"All hourly employees who were paid any commissions
since May 23, 2019, who made sales during the weeks
in which they worked more than 40 hours;"
B. Approving the use of U.S. Mail and email to distribute
Plaintiff's proposed Notice and Consent to Join;
C. Approving the form and content for use in providing notice
to the potential collective members via the methods;
D. directing the Defendant to produce the names and last
known mailing addresses and email addresses of each
potential opt-in Plaintiff in an electronically importable
and malleable format, such as Excel, within seven days
after this Court's Order is entered;
E. Allowing for an opt-in period of 90 days, to begin seven
days after the day that Defendant produces the names and
contact information for the putative collective members,
in which putative collective members may submit a Consent
to Join this lawsuit as an opt-in plaintiff;
F. Granting the Plaintiff leave to send a follow-up reminder
Postcard via U.S. Mail or email, beginning 30 days after
the opt-in period begins, to potential plaintiffs who have
not responded to the Notice; and
G. Awarding costs and a reasonable attorneys' fee and grant
all other relief to which Plaintiff may be entitled.
The Plaintiff worked as an hourly-paid Senior Project Manager for
the Defendant. The Plaintiff brought this suit individually and on
behalf of all other current and former hourly-paid employees who
were paid any commissions while working for the Defendant and who
are similarly situated to Plaintiff, to recover unpaid overtime
wages, liquidated damages, prejudgment interest, and reasonable
attorney's fees pursuant to Section 216(b) of the Fair Labor
Standards Act ("FLSA").
A copy of the Plaintiff's motion to certify class dated July 29,
2022 is available from PacerMonitor.com at https://bit.ly/3JtvjPf
at no extra charge.[CC]
The Plaintiff is represented by:
Courtney Lowery, Esq.
Sanford Law Firm, PLLC
Kirkpatrick Plaza
10800 Financial Centre Pkwy, Suite 510
Little Rock, AR 72211
Telephone: (501) 221-0088
E-mail: courtney@sanfordlawfirm.com
The Defendant is represented by:
Kyle S. Hirsch, Esq.
Amanda E. Colvin, Esq.
BRYAN CAVE LEIGHTON PAISNER LLP
Two North Central Avenue, Suite 2100
Phoenix, AZ 85004-4406
211 North Broadway, Suite 3600
St. Louis, MO 63102
COUNTRY CLUB PREP: Dicks Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed Country Club Prep, LLC. The
case is styled as Valerie Dicks, on behalf of herself and all
others similarly situated v. Country Club Prep, LLC, Case No.
1:22-cv-06444 (S.D.N.Y., July 29, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Country Club Prep -- https://www.countryclubprep.com/ -- offers
preppy clothing and accessories for men and women from favorite
brands.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
COX INDUSTRIES: Crout Labor Code Suit Goes to D. South Carolina
---------------------------------------------------------------
The case styled FREDERICK M. CROUT, JOSEPH A. MALIZIA, JOSEPH C.
TABER, BRUCE BENNETT, and LAKESIDE REALTY, INC., individually and
on behalf of all others similarly situated v. COX INDUSTRIES, INC.
N/K/A KOPPERS UTILITY AND INDUSTRIAL PRODUCTS, INC., and ARCH
CHEMICALS, INC., Case No. 2021-CP-332-04127, was removed from the
Court of Common Pleas, Eleventh Judicial Circuit, County of
Lexington, South Carolina, to the U.S. District Court for the
District of South Carolina on July 27, 2022.
The Clerk of Court for the District of South Carolina assigned Case
No. 3:22-cv-02417-JFA to the proceeding.
The case arises from the Defendants' alleged negligence/gross
negligence, breach of express warranty, breach of implied
warranties of merchantability and fitness for particular purpose,
strict liability/products liability, and breach of contract.
Lakeside Realty, Inc. is a real estate company doing business in
South Carolina.
Cox Industries, Inc., now known as Koppers Utility and Industrial
Products, Inc., is a manufacturer of specialty pressure-treated
wood products, headquartered in Orangeburg, South Carolina.
Arch Chemicals, Inc. is a global specialty chemical company based
in Norwalk, Connecticut. [BN]
The Defendant is represented by:
G. Mark Phillips, Esq.
Deirdre S. McCool, Esq.
NELSON MULLINS RILEY & SCARBOROUGH LLP
151 Meeting Street, Sixth Floor
P.O. Box 1806
Charleston, SC 29401-2239
Telephone: (843) 853-5200
E-mail: mark.phillips@nelsonmullins.com
deirdre.mccool@nelsonmullins.com
COZYMEAL INC: Slade Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Cozymeal, Inc. The
case is styled as Linda Slade, individually and as the
representative of a class of similarly situated persons v.
Cozymeal, Inc., Case No. 1:22-cv-06407-ER (S.D.N.Y., July 28,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Cozymeal -- https://www.cozymeal.com/ -- is the #1 marketplace for
culinary experiences from cooking classes to team building events
with top-rated local chefs.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
CRICKET WIRELESS: Wins Bid to Decertify Class in Freitas Suit
-------------------------------------------------------------
In the class action lawsuit captioned as URSULA FREITAS v. CRICKET
WIRELESS, LLC, Case No. 3:19-cv-07270-WHA (N.D. Cal.), the Hon.
Judge William Alsup entered an order:
1. granting the defendant's motion to decertify the class;
and
2. denying as moot the Plaintiff's motion to amend the class
definition.
The Plaintiff Ursula Freitas claims that defendant, Cricket
Wireless, LLC, advertised 4G wireless service and sold 4G-capable
phones in markets where defendant did not actually provide 4G
coverage. Thus, plaintiff alleges harm on behalf of a class of
similarly situated Cricket customers who paid for 4G phones and
coverage but received only 3G coverage, which was slower and
cheaper than 4G coverage.
A previous order in this action certified the following FRCP
23(b)(3) class:
"All persons in the United States with a customer address in
a geographic market with no Cricket 4G/LTE network coverage
who between November 1, 2012, and September 30, 2014,
purchased from Cricket a 4G/LTE monthly plan for service on
LegacyCricket's network, or later activated a 4G/LTE plan
with the device for service on LegacyCricket's network."
Both parties have appealed that order. Briefing on the appeal will
be complete by October 21, 2022. The class definition is currently
as follows:
"All persons in the United States with a customer address in
a geographic market with no Cricket 4G/LTE network coverage
who purchased from Cricket a 4G/LTE monthly plan for service
on LegacyCricket's network, or later activated a 4G/LTE plan
with the device for service on LegacyCricket's network:
(1) between November 1, 2012, and May 17, 2014, having a
customer address in the state of Alabama, Alaska,
Arizona, Arkansas, California, Colorado, Connecticut,
Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky,
Massachusetts, Michigan, Minnesota, Mississippi,
Missouri, Montana, Nebraska, Nevada, New Hampshire, New
Jersey, New Mexico, North Carolina, North Dakota, Ohio,
Oklahoma, Oregon, Pennsylvania, South Carolina, Texas,
Utah, Vermont, Virginia, or Wyoming; or
(2) between May 18, 2014, and September 30, 2014; excluding
the 15,529 persons within either of groups (1) and (2)
above who, during or after May 2017, accepted the Terms
and Conditions via electronic signature at one of
defendant's stores; and excluding the 438 persons within
either of groups (1) and (2) above who accepted the Terms
and Conditions on defendant's website.
As a result, the sole plaintiff and class representative, Ursula
Freitas, now falls outside the class definition. Specifically, the
plaintiff had a customer address in Washington and made a purchase
on October 22, 2013.
The Defendant moves to decertify on two grounds:
(1) plaintiff's damages model does not comport with either of
her two theories of class-wide liability; and
(2) plaintiff is inadequate to represent the class because
she falls outside the class definition. Plaintiff moves
to amend the class definition.
Cricket Wireless is an American wireless service provider, owned by
AT&T. It provides wireless services to ten million subscribers in
the United States. Cricket Wireless was founded in March 1999 by
Leap Wireless International.
A copy of the Court's order dated July 29, 2022 is available from
PacerMonitor.com at https://bit.ly/3BHIB8F at no extra charge.[CC]
DENTSPLY SIRONA: Faces Pension Fund Suit Over Price Stock Drop
--------------------------------------------------------------
SAN ANTONIO FIRE AND POLICE PENSION FUND, Individually and on
Behalf of All Others Similarly Situated v. DENTSPLY SIRONA INC.,
DONALD M. CASEY, JR., and JORGE GOMEZ, Case No. 1:22-cv-06339
(S.D.N.Y., July 26, 2022) is a securities class action on behalf of
all persons and entities that purchased or acquired Dentsply stock
between June 9, 2021 and May 9, 2022, inclusive.
According to the complaint, in response to the disruption to the
dental industry caused by COVID-19, Dentsply bifurcated its
existing executive compensation plans into two six-month periods
with the goal of more forcefully incentivizing Dentsply executives
to respond to the pandemic's pressures. The 2021 First Half Annual
Incentive Plan and the 2021 Second Half Annual Incentive Plan each
provided for incentive payments to Casey, Gomez, and other
executives when certain performance criteria were met during the
first and second halves of 2021, respectively. Moreover, the total
funding levels for each plan depended on Dentsply's financial
performance for the applicable half of 2021. Importantly, 89% of
Casey's, and 74% of Gomez's, annual compensation was awarded based
on these performance-based compensation plans, says the suit.
In the first half of 2021, Defendants Casey and Gomez were each
awarded the maximum compensation under the 2021 First Half Annual
Incentive Plan after Dentsply met the plan's applicable financial
performance targets. When announcing to investors Dentsply's
earnings in the first half of 2021, Gomez stated on June 9, 2021
that the Company's financial results and the accompanying
compensation for executives stemmed from a "faster recovery" to the
start of 2021. Gomez, however, cautioned investors that "second
half ramp is going to be a little bit less than what we thought
initially when we modeled 2021."
After achieving full compensation under the 2021 First Half Annual
Incentive Plan, and in the face of a looming slow second half of
2021, the Defendants orchestrated a scheme to inflate Company
revenue and earnings by manipulating Dentsply's revenue recognition
practices and certain distributor rebate and incentive programs.
The Class Period begins on June 9, 2021, when Gomez stated at the
Goldman Sachs Global Healthcare Conference that Dentsply's recent
financial success was due, in part, to its improved "go-to-market
strategy" which included "more sophisticated and strategic
incentive plans." Gomez touted that Dentsply was "bringing together
all of its capabilities into one cohesive offering with the right
commercial approach from an incentives perspective." Gomez
expressly attributed these improvements to then-CEO Casey.
Throughout the Class Period the Company also asserted in each
quarterly and annual report filed with the SEC that Dentsply
complied with Generally Accepted Accounting Principles ("GAAP") and
that the Company's internal controls "were effective." Dentsply
also continued to attribute the sources of its recent financial
success to legitimate business factors such as price increases, and
stated that the Company's inventory levels remained stable. And
when distributor inventory levels increased, the Company falsely
stated that the increase was simply due to lower-than expected
sales, the suit asserts.
Allegedly, these statements were materially false and misleading.
In truth, Defendants Casey and Gomez had orchestrated a scheme to
improperly recognize revenue in violation of GAAP and for Casey and
Gomez to achieve their 2021 incentive-based compensation. As a
result of the foregoing, the Defendants' positive statements about
the Company's business, operations, and prospects were materially
false and misleading and/or lacked a reasonable basis.
On April 11, 2022, Dentsply announced that Defendant Gomez had
"resigned" as CFO and would be assuming a CFO role at another
company (later identified to be Moderna Inc.). Dentsply assured
investors that Gomez's departure was "not the result of any dispute
or disagreement with the Company, the Company's management or the
Board of Directors of the Company on any matter relating to the
Company's operations, policies or practices."
One week later, on April 19, 2022, Dentsply announced the sudden
termination of the Defendant Casey as CEO and Director. Attempting
to mitigate the damage, Dentsply falsely assured analysts that the
termination was due to performance-related issues. The disclosure
of Casey's termination caused Dentsply's stock price to decline by
$6.52 per share, or over 13%, from $48.72 per share on April 18,
2022 to $42.20 per share on April 19, 2022.
Finally, on May 10, 2022, Dentsply announced that the Audit
Committee of its Board of Directors had commenced an internal
investigation regarding "certain financial reporting matters
submitted by current and former employees of the Company."
Specifically, Dentsply announced that the Audit Committee was
investigating "the Company's use of incentives to sell products to
distributors in the third and fourth quarter of 2021" and "whether
those incentives were appropriately accounted for" in the Company's
financial statements filed with the SEC. The Audit Committee also
stated that it was investigating allegations that "certain former
and current members of senior management directed the Company's use
of these incentives and other actions to achieve executive
compensation targets in 2021." Dentsply explained that it had
advised the SEC that an internal investigation is underway and that
the Audit Committee would provide additional information to the SEC
as the investigation proceeded. As a result, Dentsply was unable to
file its quarterly report for the quarter ended March 31, 2022.
On this news, the price of Dentsply stock fell $2.87 per share, or
over 7%, from $39.25 per share on May 9, 2022 to $36.38 per share
on May 10, 2022, on unusually heavy tradingvolume.
The very next day, on May 11, Moderna Inc. announced that it
terminated Defendant Gomez as CFO "effective immediately," after
having joined just two days prior.
As a result of the Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of Dentsply common stock,
Plaintiff and other Class members have suffered significant losses
and damages, the suit further says.
The claims Plaintiff asserts herein are alleged against Dentsply;
the Company's former Chief Executive Officer and Director Donald M.
Casey Jr.; the Company's former Chief Financial Officer and
Executive Vice President Jorge Gomez, and arise under Sections
10(b) and 20(a) of the Securities Exchange Act of 1934.
Dentsply is a manufacturer of professional dental products. It
produces a range of goods including artificial teeth, anesthetics,
and plaque and gum disease prevention treatments. The Company sells
roughly two-thirds of its products through third-party distributors
such as Patterson Companies, Inc., Henry Schein, Inc., and Benco
Dental Supply Co.[BN]
The Plaintiff is represented by:
Javier Bleichmar, Esq.
Nancy A. Kulesa, Esq.
Ross Shikowitz, Esq.
BLEICHMAR FONTI & AULD LLP
7 Times Square, 27th Floor
New York, NY 10036
Telephone: (212) 789-1340
Facsimile: (212) 205-3960
E-mail: jbleichmar@bfalaw.com
nkulesa@bfalaw.com
rshikowitz@bfalaw.com
DOLGEN CALIFORNIA: Ransdell Labor Suit Removed to E.D. California
-----------------------------------------------------------------
The case styled JESSICA RANSDELL, individually and on behalf of all
others similarly situated v. DOLGEN CALIFORNIA, LLC and DOES 1
through 10, inclusive, Case No. CV-22-002582, was removed from the
Superior Court of the State of California in and for the County of
Stanislaus to the U.S. District Court for the Eastern District of
California on July 27, 2022.
The Clerk of Court for the Eastern District of California assigned
Case No. 1:22-cv-00933-JLT-HBK to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code including failure to provide meal periods,
failure to provide rest periods, failure to pay all wages, knowing
and intentional failure to comply with itemized employee wage
statement provisions, failure to timely pay wages due at
termination, failure to timely pay employees, and failure to
reimburse for business expenses.
Dolgen California, LLC is a restaurant company doing business in
California. [BN]
The Defendant is represented by:
Sabrina A. Beldner, Esq.
Natalie M. Lagunas, Esq.
MCGUIREWOODS LLP
1800 Century Park East, 7th Floor
Los Angeles, CA 90067-1501
Telephone: (310) 315-8200
Facsimile: (310) 315-8210
E-mail: sbeldner@mcguirewoods.com
nlagunas@mcguirewoods.com
DUKE ENERGY: Shird Sues Over Customer Service Reps' Unpaid OT
-------------------------------------------------------------
The case, PANDORIA SHIRD, on behalf of herself and all similarly
situated persons, Plaintiff v. DUKE ENERGY CORPORATION, Defendant,
Case No. 1:22-cv-00999-UNA (D. Delaware, July 29, 2022) is a
collective and class action complaint brought by the Plaintiff
against the Defendant for its alleged unlawful employment policies
and practices that violated the Fair Labor Standards Act.
The Plaintiff, who was employed by the Defendant as a Customer
Service Representative (CSR), claims that the Defendant failed to
provide her and other similarly situated CSRs with a way to
accurately record all of the time they actually worked. Also, the
Defendant permitted them to work before they clock in to the
Defendant's timekeeping system without compensation. As a result,
despite working more than 40 hours per week, they were not paid for
all hours worked over 40 per week at the applicable overtime rate
in accordance with the FLSA, says the Plaintiff.
On behalf of herself and all others similarly situated CSRs, the
Plaintiff seeks to recover all unpaid wages, overtime wages,
liquidated damages, statutory and other penalties in the maximum
amount allowed by law. The Plaintiff also seeks an injunction
enjoining the Defendant from violating the foregoing laws and
regulations in the future, as well as pre- and post-judgment
interest, attorneys' and expert fees and litigation costs, and
other relief as the Court deems just and proper.
Duke Energy is an American electric power and natural gas holding
company. [BN]
The Plaintiff is represented by:
Matthew F Boyer, Esq.
Aaron M. Shapiro, Esq.
Lauren P. Deluca, Esq.
CONNOLLY GALLAGHER LLP
1201 Market Street, 20th Floor
Wilmington, DE 19801
Tel: (302) 884-6585
E-mail: mboyer@connollygallagher.com
ashapiro@connollygallagher.com
ldeluca@connollygallagher.com
- and –
Gregg I. Shavitz, Esq.
SHAVITZ LAW GROUP, P.A.
951 Yamato Road, Suite 285
Boca Raton, FL 33431
Tel: (561) 447-8888
Fax: (561) 447-8831
E-mail: gshavitz@shavitzlaw.com
- and –
Michael Palitz, Esq.
SHAVITZ LAW GROUP, P.A.
447 Madison Avenue, 6th Floor
New York, NY 10022
Tel: (561) 447-8888
Fax: (561) 447-8831
E-mail: mpalitz@shavitzlaw.com
DUKE UNIVERSITY: Young Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Duke University. The
case is styled as Lawrence Young, on behalf of himself and all
other persons similarly situated v. Duke University, Case No.
1:22-cv-06362 (S.D.N.Y., July 26, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Duke University -- https://duke.edu/ -- is a private research
university in Durham, North Carolina.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
ELITE COSMETIX: Zinnamon Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Elite Cosmetix USA,
Inc. The case is styled as Warren Zinnamon, on behalf of himself
and all others similarly situated v. Elite Cosmetix USA, Inc., Case
No. 1:22-cv-06485 (S.D.N.Y., July 31, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Elite Cosmetix USA, Inc. doing business as Crystal Nails --
https://www.crystalnails.com/ -- specializes in acrylics, waxings,
gel manicures and pedicures, eyelash extensions, and more.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
ELIZABETH LARAMAY: Court Resets Deadlines in Matzell Class Suit
---------------------------------------------------------------
In the class action lawsuit captioned as Michael Matzell v.
Elizabeth Laramay, Jane Boyea, Jeffrey McKoy, Anthony J. Annucci,
Bruce Yelich, Kay Heading Smith, Stanley Barton and John/Jane Does
1-10,, Case No. 9:20-cv-01605 (N.D.N.Y.), the Hon. Judge Christian
F. Hummel entered an order resetting deadlines as follows:
-- Discovery due by: Nov. 4, 2022
-- Class Certification Motion Dec. 15, 2022
due by:
The nature of suit states Prisoner Civil Rights.[CC]
ENOCHIAN BIOSCIENCES: Faces Chow Class Suit Over Stock Price Drop
-----------------------------------------------------------------
ALBERT CHOW, Individually and On Behalf of All Others Similarly
Situated v. ENOCHIAN BIOSCIENCES INC., MARK DYBUL, LUISA PUCHE,
RENÈ LAWS SINDLEV, CAROL L. BROSGART, GREGG ALTON, JAMES
SAPIRSTEIN, CARL SANDLER, HENRIK GRONFELDT-SØRENSEN, JAYNE
MCNICOL, and EVELYN D'AN, Case No. 2:22-cv-05147 (C.D. Cal,. July
26, 2022) is a federal securities class action on behalf of a class
consisting of all persons and entities other than Defendants that
purchased or otherwise acquired Enochian securities between
September 24, 2020 and May 31, 2022, both dates inclusive, seeking
to recover damages caused by the Defendants' violations of the
federal securities laws and to pursue remedies under the Securities
Exchange Act of 1934.
According to the complaint, Enochian and its top management have
credited Serhat Gumrukcu, Enochian's co-founder and largest
shareholder, as a "genius" and the "inventor" of the technology and
science behind the Company's product pipeline. Enochian has
multiple consulting and licensing agreements with G-Tech Bio, LLC,
a California limited liability company, and G Health Research
Foundation, a not-for-profit entity organized under the laws of
California doing business as Seraph Research Institute, both of
which are controlled by Gumrukcu.
Throughout the Class Period, the Defendants allegedly made
materially false and misleading statements regarding the Company's
business, operations, and compliance policies. Specifically, the
Defendants made false and/or misleading statements and/or failed to
disclose that Gumrukcu was not a licensed doctor and had no
verifiable degrees beyond high school, says the suit.
On May 25, 2022, the U.S. Department of Justice announced that
Gumrukcu had been arrested and charged in a murder-for-hire
conspiracy. On this news, Enochian's stock price fell $2.17 per
share, or 36.97%, to close at $3.70 per share on May 25, 2022.
Then, on June 1, 2022, Hindenburg Research published a report on
Enochian entitled "Miracle Cures and Murder For Hire: How A
Spoon-Bending Turkish Magician Built A $600 Million Nasdaq-Listed
Scam Based On A Lifetime Of Lies" (the "Hindenburg Report").
The Hindenburg Report noted that the individual in whose murder
Gumrukcu was implicated, Gregory Davis, "was murdered just 19 days
before Gumrukcu was scheduled to appear in court to defend himself
against felony fraud allegations related to a 2016 deal with Davis"
and that "federal prosecutors argued that the prospective merger
deal that eventually resulted in Enochian going public served as a
key motive for the murder." The Hindenburg Report also stated that
"unbeknownst to investors (but known to Enochian's senior
leadership) Gumrukcu's latest arrest for a murder conspiracy is
simply the most recent in a string of alleged crimes by Gumrukcu,"
who "was arrested based on accusations of falsely posing as a
doctor" in his native Turkey in 2012 and "in February 2017,
Gumrukcu was arrested by authorities after the State of California
accused him of a slew of white-collar crimes, including fraud,
identity theft, and check kiting -- a total of 14 felonies." The
Hindenburg Report further stated that "we have been unable to find
any jurisdiction in which Gumrukcu is licensed as a medical doctor"
and that "Gumrukcu looks to have purchased a fake Russian medical
degree on the black market."
On this news, Enochian's stock price fell $1.495 per share, or
28.42%, to close at $3.765 per share on June 1, 2022.
As a result of Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the Company's
securities, the Plaintiff and other Class members have suffered
significant losses and damages, the suit added.
The Plaintiff acquired Enochian securities at artificially inflated
prices during the Class Period and was damaged upon the revelation
of the alleged corrective disclosures.
Enochian is a pre-clinical stage biotechnology company that
purportedly researches and develops pharmaceutical and biological
products for the human treatment of human immunodeficiency virus
("HIV"), hepatitis B virus ("HBV"), influenza and coronavirus
infections, and cancer. The Individual Defendants are officers of
the company.[BN]
The Plaintiff is represented by:
Jennifer Pafiti, Esq.
POMERANTZ LLP
1100 Glendon Avenue, 15th Floor
Los Angeles, CA 90024
Telephone: (310) 405-7190
E-mail: jpafiti@pomlaw.com
- and -
Lesley F. Portnoy, Esq.
PORTNOY LAW FIRM
1800 Century Park East, Suite 600
Los Angeles, CA 90067
Telephone: (310) 692-8883
E-mail: lesley@portnoylaw.com
EPOCH TIMES: Discloses Customers' Personal Info, Czarnionka Says
----------------------------------------------------------------
LAWRENCE CZARNIONKA, individually and on behalf of all others
similarly situated, Plaintiff v. THE EPOCH TIMES ASSOCIATION, INC.,
Defendant, Case No. 1:22-cv-06348 (S.D.N.Y., July 26, 2022) is a
class action against the Defendant for violations of the federal
Video Privacy Protection Act.
According to the complaint, the Defendant is engaged in an unlawful
practice of disclosing the personally identifiable information
(PII) and online video materials of the Plaintiff and similarly
situated subscribers obtain or request from its websites and
applications to a third party, Meta Platforms, Inc., formerly known
as Facebook, Inc. The Defendant discloses this information to
Facebook using the Facebook Pixel or Pixel, a snippet of
programming code Epoch Times chose to install on its websites that
sends information to Facebook. By disclosing the Plaintiff's and
Class members' PII, the Defendant violated their statutorily
protected right to privacy in their video-watching habits, says the
suit.
The Epoch Times Association, Inc. is an international newspaper and
media company headquartered in New York, New York. [BN]
The Plaintiff is represented by:
Joseph Henry (Hank) Bates, III, Esq.
Lee Lowther, Esq.
Courtney E. Ross, Esq.
CARNEY BATES & PULLIAM, PLLC
519 W. 7th Street
Little Rock, AR 72201
Telephone: (501)312-8500
E-mail: hbates@cbplaw.com
llowther@cbplaw.com
cross@cbplaw.com
ERICO INTERNATIONAL: Initial OK of Settlement in McKnight Sought
----------------------------------------------------------------
In the class action lawsuit captioned as PARRIS MCKNIGHT, et al.,
On behalf of themselves and all others similarly situated, v. ERICO
INTERNATIONAL CORPORATION, Case No. 1:21-cv-01826-JPC (N.D. Ohio),
the Parties as the Court to enter an order:
1. preliminarily approving the proposed settlement of two
groups of Settlement Class Members' claims pursuant to
Fed. R. Civ. P. 23(e)'
2. approving a proposed notice to potential Settlement
Class Members;
3. appointing proposed Class Counsel SCOTT & WINTERS LAW FIRM
as interim Class Counsel; and
4. scheduling a Fairness Hearing.
The Settlement will apply to the Plaintiffs and to all other
members of two proposed Settlement Classes.
-- Rule 23 Subclass 1, consisting of Rule 23 Class Members
who do not exclude themselves from the Settlement
includes:
"All former and current non-exempt production employees of
Defendant Erico International Corporation who worked at
Defendant's ECN and/or ESN manufacturing facilities in
Solon, Ohio at any time between February 5, 2018 to April
18, 2020, excluding such employees who released Ohio wage
and hour law claims as named or opt-in plaintiffs in
settlement of the action Patricia Hardimon v. Erico
International Corp., Case No. 1:20-cv000246-PAB.
-- The Rule 23 Subclass 2, consisting of Rule 23 Class
Members who do not exclude themselves from the Settlement
includes:
"All former and current non-exempt production employees of
Defendant Erico International Corporation who worked at
Defendant's ECN and/or ESN manufacturing facilities in
Solon, Ohio at any time between April 19, 2020 to April 1,
2022, excluding such employees who released Ohio wage and
hour law claims as named or opt-in plaintiffs in
settlement of the action Patricia Hardimon v. Erico
International Corp., Case No. 1:20-cv000246-PAB.
In addition, this Settlement covers Plaintiffs' and FLSA Collective
Action Members' overtime claims, individuals who previously
provided consent forms to become party opt-in Plaintiffs in this
case, consisting of two FLSA settlement
Classes defined as:
-- FLSA Collective Action Subclass 1
"All persons who have given timely consent in writing to
become a party Plaintiff in the Action, whose opt-in
consent form was filed in this matter on or prior to April
1, 2022 (including but not limited to all Named
Plaintiffs) and who worked as a non-exempt employee at
Defendant's ECN and/or ESN manufacturing facilities in
Solon, Ohio at any time between June 29, 2017 and April
18, 2020;" and
-- FLSA Collective Action Subclass 2
"All persons who have given timely consent in writing to
become a party Plaintiff in the Action, whose opt-in
consent form was filed in this matter on or prior to April
1, 2022 and who worked as a non-exempt employee at
Defendant's ECN and/or ESN manufacturing facilities in
Solon, Ohio at any time between
April 19, 2020 and April 1, 2022.
Rule 23 Subclass 1 Members include FLSA Collective Action
Subclass 1 Members, and, likewise, Rule 23 Subclass 2
Members include FLSA Collective Action Subclass 2 Members.
The Plaintiffs include Parris McKnight, Dawn Adams, Matthew Bailey,
Ryan Evans, Corey Green, Deresse Jackson, Latonya Jordan, Joshua
Livingston, Michael Metz, Robert Metz, Frederick Midgley, Randi
Robinson, Tia Robinson, and Tyronn Taylor.
A copy of the Parties' motion dated July 29, 2022 is available from
PacerMonitor.com at https://bit.ly/3bx125q at no extra charge.[CC]
The Plaintiffs are represented by:
Joseph F. Scott, Esq.
Ryan A. Winters, Esq.
Kevin M. McDermott II, Esq.
SCOTT & WINTERS LAW FIRM , LLC
The Caxton Building
812 Huron Rd. E., Suite 490
Cleveland, OH 44115
Telephone: (216) 912-2221
Facsimile: (216) 350-6313
E-mail: jscott@ohiowagelawyers.com
rwinters@ohiowagelawyers.com
kmcdermott@ohiowagelawyers.com
The Defendant is represented by:
Carrie A. McAtee (MO 54949)
SHOOK, HARDY & BACON LLP
2555 Grand Blvd.
Kansas City, MO 64108
Telephone: (816) 559-2512
E-mail: cmcatee@shb.com
- and -
Gust Callas, Esq.
BLACK, MCCUSKEY, SOUERS & ARBAUGH
220 Market Avenue South, Suite 1000
Canton, OH 44702
Telephone: (330) 456-8341
Facsimile: (330) 456-5756
E-mail: gcallas@bmsa.com
EXEL INC: Young et al. Sue Over Failure to Properly Pay OT Wages
----------------------------------------------------------------
MICHAEL YOUNG and DONNA MIRANDA, Plaintiffs v. EXEL, INC. d/b/a DHL
SUPPLY CHAIN, Defendant, Case No. 3:22-cv-01344 (N.D. Ohio, July
29, 2022) brings this complaint as a collective action on behalf of
themselves and all others similarly situated against the Defendant
for its alleged violations of the Fair Labor Standards Act.
The Plaintiffs were employed by the Defendant as non-exempt
employee at its facility in Findlay, Ohio within the 2 years
preceding the filing of this complaint.
The Plaintiffs claim that during their employment with the
Defendant, they and other similarly situated employees regularly
worked more than 40 hours per week. However, the Defendant failed
to accurately pay their overtime compensation at the applicable
overtime rate because their shift differential compensation was
willfully excluded by the Defendant in their regular rate when
calculating their overtime compensation, say the Plaintiffs.
The Plaintiffs seek actual damages for unpaid wages and overtime
compensation, liquidated damages in an amount equal to the unpaid
wages and overtime compensation, pre- and post-judgment interest,
attorneys' fees, costs, and disbursements, and other relief as the
Court deems just and proper.
EXEL, Inc. d/b/a DHL Supply Chain is contract logistics provider.
[BN]
The Plaintiffs are represented by:
Jason R. Bristol, Esq.
COHEN ROSENTHAL & KRAMER LLP
3208 Clinton Avenue
Cleveland, OH 44113
Tel: (216) 815-9500
E-mail: jbristol@crklaw.com
- and –
J.R. Howell, Esq.
LAW OFFICE OF J.R. HOWELL
1223 Wilshire Boulevard
P.O. Box 543
Santa Monica, CA 90403
Tel: (202) 650-8867
E-mail: jrhowell@jrhlegalstrategies.com
FAIRHOPE, AL: JME Building Suit Removed to S.D. Alabama
-------------------------------------------------------
The case styled as JME Building And Development, LLC, on behalf of
itself and all others similarly situated v. The City of Fairhope,
Alabama, The City Council of The City of Fairhope, Alabama, Jimmy
Conyers, Kevin Boone, Corey Martin, Jack Burrell, Jay Robinson, Jay
Robinson, in their representative capacities as Members of the City
Council of The City of Fairhope, Alabama, Sherry Sullivan, in her
capacity as Mayor of The City of Fairhope, Alabama, Case No.
3:22-cv-00351 was removed to the U.S. District Court for the
Southern District of Alabama on July 26, 2022.
The District Court Clerk assigned Case No. 1:22-cv-00293 to the
proceeding.
The nature of suit is stated as Other Civil Rights.
Fairhope -- https://www.fairhopeal.gov/ -- is a city in Baldwin
County, Alabama, United States, located on the eastern shoreline of
Mobile Bay.[BN]
The Plaintiffs are represented by:
John Parker Yates, Esq.
YATES ANDERSON
2320 Highland Ave. S., Suite 290B
Birmingham, AL 35205
Phone: (205) 705-3144
Email: parker@yatesanderson.com
The Defendants are represented by:
Christopher Scott Williams, Esq.
Emily Van Haneghan, Esq.
HAND ARENDALL HARRISON SALE LLC
P. O. Box 1499
Fairhope, AL 36532
Phone: (251) 990-0079
Email: cwilliams@handfirm.com
evanhaneghan@handfirm.com
FENG SHUI IMPORT: Dicks Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Feng Shui Import,
LLC. The case is styled as Valerie Dicks, on behalf of herself and
all others similarly situated v. Feng Shui Import, LLC, Case No.
1:22-cv-06448 (S.D.N.Y., July 29, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Feng Shui Import -- https://www.fengshui-import.com/ -- is one of
the direct importers and distributors of feng shui items in San
Diego, California since 1998.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
FLAGSTAR BANK: Fails to Protect Consumers' Info, Silva Suit Says
----------------------------------------------------------------
NATHAN SILVA, individually and on behalf of all others similarly
situated v. FLAGSTAR BANK, FSB, Case No. 2:22-cv-11729-SJM-KGA
(E.D. Mich., July 26, 2022) is a class action brought by the
Plaintiff on behalf of similarly situated individuals who entrusted
Flagstar with sensitive personal information which was subsequently
exposed in a data breach that was discovered by Flagstar on June 2,
2022.
Between December 3, 2021, and December 4, 2021, hackers accessed
Flagstar's networks and servers and exfiltrated highly-sensitive
personal information of more than 1.5 million U.S. customers (the
Data Breach).
The Data Breach was a result of Flagstar's failure to properly
secure and safeguard Plaintiff's and the Class members' sensitive
personal information stored within its network and servers,
including, without limitation, full names, Social Security numbers,
and phone numbers (PII), says the suit.
On June 2, 2022, approximately six months after the Data Breach
took place, Flagstar discovered that an unauthorized third party
had gained access to Flagstar's network.
Flagstar began notifying affected individuals that their PII was
compromised over two weeks later on, June 17, 2022. At this time,
it is unclear if Flagstar has provided notice to all impacted
individuals. The Plaintiff received a Notice of Data Breach letter
from Flagstar dated June 15, 2022.
As of the time Flagstar filed its Data Breach Notification with the
State of Maine in June, 1,547,169 United States residents were
affected by the Data Breach.
The Defendant maintained the PII in a reckless and negligent
manner. In particular, the PII was maintained on Defendant's
network system in a condition vulnerable to cyberattacks. The
Defendant exposed Plaintiff and the Class members to harm by
intentionally, willfully, recklessly, or negligently failing to
take adequate and reasonable measures to ensure its data systems
were protected against unauthorized intrusions; failing to disclose
that it did not have adequately robust network systems and security
practices in place to safeguard participants' PII; failing to take
standard and reasonably available steps to prevent the Data Breach
from occurring; failing to quickly detect the Data Breach; and
failing to promptly notify Plaintiff and the Class members of the
Data Breach, the suit added.
The Plaintiff and the Class members are now subject to the present
and continuing risk of identity theft and fraud. According to
Experian, one of the largest credit reporting companies in the
world, "the research shows that personal information is valuable to
identity, and if they can get access to it, they will use it" to,
among other things, open a new credit card or loan; change a
billing address so the victim no longer receives bills; open new
utilities in the victim's name; obtain a mobile phone; open a bank
account and write bad checks; use a debit card number to withdraw
funds; obtain a new driver's license or ID; or use the victim's
information in the event of arrest or court action, the suit
further asserts.
The Plaintiff brings this class action lawsuit on behalf of those
similarly situated to address Defendant's inadequate safeguarding
of Class members' PII that Defendant collected and maintained, and
for failing to provide timely and adequate notice to Plaintiff and
the other Class members that their information had been subject to
the unauthorized access of an unknown third party.[BN]
The Plaintiff is represented by:
Amy E. Keller, Esq.
DICELLO LEVITT GUTZLER LLC
Ten North Dearborn Street, Sixth Floor
Chicago, IL 60602
Telephone: (312) 214-7900
E-mail: akeller@dicellolevitt.com
- and -
Michael R. Reese, Esq.
George V. Granade, Esq.
REESE LLP
100 West 93rd Street, 16th Floor
New York, NY 10025
Telephone: (212) 643-0500
E-mail: mreese@reesellp.com
ggranade@reesellp.com
FLAME & WAX: Luis Files ADA Suit in S.D. New York
-------------------------------------------------
A class action lawsuit has been filed against Flame & Wax, Inc. The
case is styled as Kevin Yan Luis, individually and on behalf of all
others similarly situated v. Flame & Wax, Inc., Case No.
1:22-cv-06468 (S.D.N.Y., July 29, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Flame & Wax, Inc. doing business as Voluspa --
https://www.voluspa.com/ -- offers candles, diffusers, and gifts
that are true handcrafted California luxury.[BN]
The Plaintiff is represented by:
Noor Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
FMA ALLIANCE: Ragsdale Files FDCPA Suit in D. Utah
--------------------------------------------------
A class action lawsuit has been filed against FMA Alliance. The
case is styled as Angela Ragsdale, individually and on behalf of
all others similarly situated v. FMA Alliance, Case No.
2:22-cv-00488-DBP (D. Utah, July 28, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
FMA Alliance, Ltd. (FMA) -- https://www.fmaalliance.com/ -- is a
privately-owned receivables management company originally formed in
1983 and headquartered in Houston, Texas.[BN]
The Plaintiff is represented by:
Brett D. Cragun, Esq.
CRAGUN & CRAGUN
PO Box 160234
Clearfield, UT 84016
Phone: (801) 450-3267
Email: brett@brettcragun.com
FOLKMANIS INC: Dicks Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Folkmanis, Inc. The
case is styled as Valerie Dicks, on behalf of herself and all
others similarly situated v. Folkmanis, Inc., Case No.
1:22-cv-06344 (S.D.N.Y., July 26, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Folkmanis -- https://www.folkmanis.com/ -- provides puppets
services for a healthy childhood, encouraging play and developing
skills.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
FOOD EXPERIENCES: Slade Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Food Experiences of
New York, LLC. The case is styled as Linda Slade, individually and
as the representative of a class of similarly situated persons v.
Food Experiences of New York, LLC, Case No. 1:22-cv-06410
(S.D.N.Y., July 28, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Foods of New York Tours -- https://www.foodsofny.com/ -- is NYC's
original and #1 rated food tours.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
GARRISON PROPERTY: Lemke Files Suit in C.D. Illinois
----------------------------------------------------
A class action lawsuit has been filed against Garrison Property and
Casualty Insurance Company. The case is styled as Melanie Lemke,
individually and on behalf of all others similarly situated v.
Garrison Property and Casualty Insurance Company, Case No.
1:22-cv-01248-MMM-JEH (C.D. Ill., July 26, 2022).
The nature of suit is stated as Insurance Contract.
Garrison Property & Casualty Insurance Co. operates as an insurance
company. The Company provides property and casualty insurance
services.[BN]
The Plaintiff is represented by:
Andrew Shamis, Esq.
SHAMIS & GENTILE, PA
14 NE 1st Ave, Ste. 705
Miami, FL 33132
Phone: (305) 479-2299
Fax: (786) 623-0915
Email: ashamis@shamisgentile.com
GEICO CHOICE: Court Grants Bids to Dismiss Jones Class Suit in Full
-------------------------------------------------------------------
In the case, ISIAH A. JONES, III, Plaintiff v. GEICO CHOICE
INSURANCE COMPANY, Defendant. MICHAEL PURCELL, JR., Plaintiff v.
GEICO CASUALTY COMPANY, Defendant, Civil Action No. 22-558 (E.D.
Pa.), Judge Gene E.K. Pratter of the U.S. District Court for the
Eastern District of Pennsylvania grants GEICO's motions to dismiss
in full.
Two Plaintiffs, proposing to represent classes of similarly
situated Pennsylvania single-vehicle insurance policyholders with
GEICO, have sued two GEICO subsidiaries alleging that GEICO charged
them for a stacking benefit in their automobile insurance policies
that they did not, and could not, receive. In other words, the
Plaintiffs allege that they paid for illusory automobile insurance
coverage.
Plaintiffs Isiah Jones, III, and Michael Purcell, Jr., each propose
to represent a class of similarly situated Pennsylvania residents
against two different subsidiaries of GEICO: GEICO Choice Insurance
Co. and GEICO Casualty Co., respectively. The Plaintiffs claim that
GEICO offered stacked underinsured and uninsured motorist coverage
when, based on the information provided to it in their application,
GEICO knew or should have known that they were applying for a
single-vehicle policy and would not have been eligible to receive
stacked benefits under any circumstance.
Uninsured motorist coverage ("UM") applies when an insured "suffers
injury or damage caused by a third-party tortfeasor who is
uninsured." On the other hand, underinsured motorist coverage
("UIM") applies "when a third-party tortfeasor injures or damages
an insured and the tortfeasor lacks sufficient insurance coverage
to compensate the insured in full."
Stacking is the combining of the coverage limits. This can happen
in two different ways. First, a single insured can stack coverage
limits on multiple vehicles under a single umbrella insurance
policy (e.g., one person has more than one vehicle insured by
GEICO), which is called "intrapolicy stacking." Second, a
single-vehicle insured can receive stacked benefits if he is an
insured under more than one separate insurance policies that
provide stacked UM/UIM benefits (e.g., an insured has a policy and
a member of the insured's household has a separate policy covering
a different vehicle), which is called "interpolicy stacking."
The Plaintiffs claim that GEICO sold them a single-vehicle policy
with stacked uninsured and underinsured motorist benefits but that
none of the members of the proposed class (1) had another vehicle,
(2) had another insurance policy for purposes of UM or UIM
coverage, or (3) had any other vehicle or insurance policy in their
household such that they could have recovered stacked UM or UIM
benefits. In other words, they claim that they were sold stacking
coverage from which they could never receive stacked benefits,
meaning GEICO sold them illusory coverage, and because the coverage
was only "illusory," they allege they suffered an injury in the
form of an increased monthly premium payment, i.e., they paid for
something they did not call upon. GEICO's offer of this coverage,
the plaintiffs allege, violated the Pennsylvania Motor Vehicle
Financial Responsibility Law (MVFRL).
The Plaintiffs have brought claims for declaratory relief, return
of premiums, unjust enrichment, violation of the Pennsylvania
Unfair Trade Practices and Consumer Protection Law (UTPCPL), fraud,
and injunctive relief. Other Plaintiffs have filed an identical
suit in this district against different insurance companies.
GEICO moves to dismiss both complaints in full, arguing that the
coverage was not illusory and that the Plaintiffs' legal argument
is a misunderstanding of the relevant case law. The Court heard
oral argument on this matter, leaving it ripe for its resolution.
The Court has jurisdiction of these cases under the Class Action
Fairness Act, which only requires minimal diversity, an alleged
class of at least 100 members, and an amount in controversy over $5
million. The GEICO insurance policies at issue have a choice of law
provision stating that Pennsylvania law will apply. The Court,
exercising diversity jurisdiction, applies the choice of law rules
of the forum state, Pennsylvania, and Pennsylvania courts honor
choice of law provisions, meaning Pennsylvania law will apply.
Thus, it must predict what the Pennsylvania Supreme Court would do
if presented with the Plaintiffs' claims.
The Plaintiffs claim that GEICO's coverage was illusory and pose
six counts: Declaratory Relief (Count I), Return of Premiums (Count
II), Unjust Enrichment (Count III), Violation of the Pennsylvania
Consumer Protection Law (Count IV), Common Law Fraud (Count V), and
Injunctive Relief (Count VI).
Initially, GEICO disputes the Plaintiffs' understanding of the law,
arguing that their argument fails on its face both because
Generette did not do what they argue and because there are other
scenarios in which theys would have received stacked benefits in
the event of an accident.
The Plaintiffs' legal argument, indeed, suffers from numerous
flaws, Judge Pratter holds. She say, the Plaintiffs' theory that
GEICO provided illusory coverage is not accurate and, besides, they
have not met their burden to prove otherwise. Beyond the fact that
their coverage was not illusory, the Plaintiffs' theory of the case
fails for additional reasons: Their theory would invert the current
statutory scheme, their theory of GEICO's role in their purchase of
an insurance contract is, quite simply, not how the insurance
market operates, and their approach would, quite obviously, create
other problems.
Plus, the simplest and most obvious solution is already available.
Had the Plaintiffs chosen to waive stacking coverage, they would
not be in this predicament. And if their grievance is that the
stacking waiver, which insurers are required to provide under
Pennsylvania law, does not adequately appraise potential customers
of the fact that as a single-vehicle insured they may want to think
differently about stacking coverage than a multiple-vehicle
insured, that, too, is an issue to take up with the Commonwealth's
insurance commissioner, the governor, or the Pennsylvania
legislature.
Having determined that GEICO did not provide illusory coverage to
the Plaintiffs, Count I for Declaratory Relief must be dismissed,
Judge Pratter rules. The Plaintiffs seek a declaratory judgment
that the "policies of insurance issued by GEICO provide no stacking
coverage benefit for uninsured and underinsured motorist coverages
under the MVFRL." This involves the same allegation that GEICO
provided illusory coverage.
Judge Pratter has already determined that GEICO did not provide
illusory coverage. Thus, there is nothing for the Court to declare.
Plus, declaratory judgment is not "meant simply to proclaim that
one party is liable to another," which is the only thing the
Plaintiffs seek. That the Plaintiffs' claim is addressed (and
rejected) under other legal theories, therefore, is yet another
reason to dismiss it. Therefore, she grants GEICO's motions to
dismiss Count I of the Plaintiffs' complaints in full.
Moving to Count II for return of premiums, the Plaintiffs assert
the identical allegations that GEICO provided illusory coverage.
But, regardless, return of premiums is a remedy, not a cause of
action. Therefore, this count must be dismissed because it is not a
claim upon which relief can be granted. Likewise, under Count VI,
the Plaintiffs seek injunctive relief. Similar to other claims, the
Plaintiffs want the Court to prevent GEICO from offering and
charging for stacking benefits moving forward. But, as with their
count for return of premiums, the count for injunctive relief must
also be dismissed because injunctive relief is a remedy, not an
independent cause of action. Therefore, GEICO's motions to dismiss
as to Counts II and VI of the Plaintiffs' complaints are granted in
full.
In Count III, the Plaintiffs assert a claim for unjust enrichment.
This is based on the same assertion that GEICO has been charging
the Plaintiffs a premium for stacking that provided no stacking
benefit. The Defendants move to dismiss this count of the
Plaintiffs' complaints because the parties have a written contract,
meaning unjust enrichment cannot apply.
Judge Pratter holds that this argument by is unavailing, however,
because the Plaintiffs asserted a separate count for return of
premiums, which is a form of restitution damages, a standard remedy
for breach of contract. Thus, even by the terms of their own
complaints, they were not limited to the remedy of unjust
enrichment. Therefore, GEICO's motions to dismiss Count III of the
Plaintiffs' complaints are granted in full.
The Plaintiffs also claim that GEICO violated UTPCPL, claiming that
GEICO issued single-vehicle policies and charged premiums for a
stacking benefit that the consumers could not, and did not,
receive. Specifically, they claim that GEICO's conduct constitutes
unfair and deceptive practices as defined in 73 Pa. Stat. Section
201-2(4)(v)(vii) and (xxi) and thus violates the UTPCPL.
Judge Pratter grants GEICO's motions to dismiss Count IV of the
Plaintiffs' complaints in full. She finds that the Plaintiffs'
argument that the standard language of the policy and certain
endorsements (after the Plaintiffs had already purchased it) is
deceptive because the policy offers a benefit that the plaintiffs
claim they did not and could not receive, runs into two separate
problems. First, the coverage was not illusory. Second, the
Plaintiffs do not dispute that they were offered the chance to
waive this coverage with a statutorily prescribed waiver form.
Finally, the Plaintiffs allege a count of common law fraud against
GEICO. This claim is based on the same claim that GEICO offered
stacking benefits and charged the Plaintiffs for that benefit but
provided no benefit to this class of plaintiffs after the
Pennsylvania Supreme Court's decision in Generette. Thus, they
allege that GEICO deliberately refused to warn them that they would
receive no stacking benefit and yet charged them for that benefit
anyway. GEICO again moves to dismiss this count, arguing both that
the fraud claim is time-barred, and that it fails to state a
claim.
Judge Pratter holds that this argument fails for a number of
reasons. First, this theory of false representation is based on a
mischaracterization of Generette. Second, the Plaintiffs have not
suggested any set of facts under which GEICO made these
representations knowing them to be false. Third, they have not
suggested how it would be fraudulent for GEICO to offer stacking
and waiver of stacking as is required by Pennsylvania stale law.
Therefore, GEICO's motions to dismiss Count V of the Plaintiffs'
complaints are granted in full.
Judge Pratter concludes that the common law system depends on
parties pushing the limits of the law and developing new legal
theories. Not all new legal theories, however, provide bases for
new claims. The Plaintiffs have failed to assert a claim that GEICO
provided illusory coverage and have also failed to state any viable
cause of action upon which the Court could grant relief. Therefore,
GEICO's motions to dismiss are granted in full. An appropriate
order follows.
A full-text copy of the Court's July 27, 2022 Memorandum is
available at https://tinyurl.com/mw9ze4p5 from Leagle.com.
GENERAL MOTORS: Bids to Strike Experts' Opinions in Won Suit Denied
-------------------------------------------------------------------
In the case, WESLEY WON, DENNIS SPEERLY, JOSEPH SIERCHIO, DARRIN
DEGRAND, DANIEL DRAIN, WAVERS SMITH, RICHARD FREEMAN, CHRISTOPHER
GILES, LOUIS RAY, RICHARD SULLIVAN, DANIEL BAPTIST, DENNIS SPEERLY,
JOHN IASIELLO, BENJY TOMPKINS, JAMES NORVELL, MICHAEL BANKS, GUY
CLARK, MARIA BARALLARDOS, CARY SHERROW, JASON KEVIN SINCLAIR,
KIMBERLY COULSON, TROY COULSON, ANDRE McQUADE, DONALD DYKSHORN,
TAIT THOMAS, JAMES PAUL BROWNE, WILLIAM FREDO, DONALD SICURA, JON
ELLARD, RHIANNA MEYERS, RANDALL JACOBS, MICHAEL PONDER, PHILIP
WEEKS, KARINA FREDO, JIMMY FLOWERS, STEVEN BRACK, KEVIN WESLEY,
BRIAN LLOYD, GREGORY BUTSCHA, JERRY CARROLL, KIMBERLY CARROLL,
DOMINIC EATHERTON, THOMAS EDMONDSON, RICHARD FILIAGGI, ROBERT
HIGGINS, and DAVID THOMPSON, Plaintiffs v. GENERAL MOTORS, LLC,
Defendant, Case No. 19-11044 (E.D. Mich.), Judge David M. Lawson of
the U.S. District Court for the Eastern District of Michigan,
Southern Division, denies:
(i) the Defendant's motions to exclude or strike the reports
and opinions of Samantha Iyengar, Richard Eichmann, Alice
Wachs, and William McVea; and
(ii) the Plaintiffs' motions to exclude or strike the reports
and opinions of David Hartfelder.
The Plaintiffs allege that the automatic transmissions in their
cars occasionally will "slip, buck, kick, jerk and harshly engage."
They say that when the transmission causes the vehicle to perform
erratically, such as with sudden or delayed acceleration, the
vehicles may be unsafe to drive. All of the car and truck models
implicated by this suit were made by Defendant GM between model
years 2015 and 2019. The Plaintiffs filed several suits, which were
consolidated in the Court on behalf of putative classes including
the owners of thousands of vehicles that, they claim, have
defective transmissions, which GM has refused to fix or replace
under its express warranty.
In a 2,920-paragraph consolidated amended class action complaint
(CACAC), which spans more than 900 pages, including attached
exhibits, the Plaintiffs pleaded causes of action under the laws of
31 states sounding in breaches of express and implied warranties;
common law fraudulent omissions and statutory consumer fraud;
violations of various state laws governing consumer sales,
deceptive marketing, and unfair trade practices; and unjust
enrichment.
The putative classes that have been proposed for certification
consist of domestic buyers and lessors of GM cars and trucks
equipped with its Hydra-Matic 8L90 and 8L45 transmissions. The
class vehicles include the 2015 through 2019 model year Chevrolet
Silverado; 2017-2019 Chevrolet Colorado; 2015-2019 Chevrolet
Corvette; 2016-2019 Chevrolet Camaro; 2015-2019 Cadillac Escalade
and Escalade ESV; 2016-2019 Cadillac ATS, ATS-V, CTS, CT6, and
CTS-V; 2015-2019 GMC Sierra, Yukon, Yukon XL, and Yukon Denali XL;
and 2017-2019 GMC Canyon.
The consolidated amended complaint aggregates claims brought by
individuals in five separately filed civil actions (file numbers
19-11044, 19-11802, 19-11808, 19-11875, and 19-12371), which were
assigned or reassigned to the Court and consolidated for all
pretrial proceedings. The parties stipulated to dismiss many of the
originally named individual plaintiffs, and the Plaintiffs, with
leave granted, also have filed two addendums to the amended
complaint naming replacement plaintiffs from most states. The Court
also granted in part motions to dismiss certain claims and the
Plaintiffs. Although the case as it stands includes claims under
the laws of 31 states, the Plaintiffs have moved for certification
of classes embracing only 26 of those jurisdictions (omitting
California, Connecticut, Indiana, Ohio, and Oregon).
The discovery period relating to class certification issues closed,
and the parties timely filed their motions challenging expert
witnesses relating to class certification. The Plaintiffs filed
their class certification motion, which is scheduled for a hearing
later next month.
Samantha Iyengar
Ms. Iyengar is an Associate Director at NERA Economic Consulting.
She was engaged by the Plaintiffs "to conduct research to determine
whether knowledge of allegedly defective 8-speed automatic
transmissions produced by GM would have impacted consumers'
likelihood of purchasing the Class Vehicles," with the
understanding that the data from her study would be used by the
Plaintiffs' economic expert to "offer an opinion on how the results
of my research may reflect on the but-for price customers would
have paid for the Class Vehicles had GM disclosed the existence and
extent of the alleged drive quality or shudder issues." Her
research consisted of a consumer survey, which she designed.
Ms. Iyengar's report discloses that when preparing her survey, she
reviewed the class complaint and other documents and deposition
testimony that were produced through discovery. Her report also
included an overview of general principles of survey design for
conjoint choice analysis. She reported that "a total of 4,956
respondents completed her surveys and passed all quality checks,"
and "each of these respondents completed 12 choice tasks, yielding
a total of 59,472 choices, each with 4 vehicles, yielding a total
of 237,888 vehicle options across all segments."
Based on data from her surveys, Iyengar concluded that "consumers
view 8-speed transmission service rate as a negative attribute in
connection with the vehicle segments including Class Vehicles," and
that "in every vehicle segment surveyed, consumers are less likely
to purchase a vehicle with the alleged defect (i.e., shudder or
drive quality issues as described with 8-speed automatic
transmission vehicles with a service rate greater than 0%) as
compared to a vehicle without the alleged defect (i.e., 8-speed
automatic transmission with a 0 percent service rate), holding all
else constant."
The Defendant's main argument is a kind of reverse relevancy
attack. GM says that Iyengar's economic survey results should be
excluded because the Plaintiffs' fellow expert, Richard Eichmann,
who was to use the survey results as part of his expert review,
implicitly conceded in his rebuttal report that Iyengar's survey
results were flawed and unreliable, because Eichmann responded to
criticisms about a "coding error" in his own work -- which had been
identified by the Defendant's expert, Lorin Hitt -- by "adjusting"
the data produced by Iyengar to rectify the errors in his own
analysis. GM then asserts that because Iyengar's data was
"adjusted" by the Plaintiffs' economic analyst, any testimony about
her original work is irrelevant to their calculations of damages,
because her flawed results were not actually used for those
calculations.
Judge Lawson opines that GM has not shown that Iyengar's opinions
are inadmissible. First, Iyengar did not rely on Eichmann's work or
any information furnished by him on the way to formulating her
opinions. If Eichmann altered her conclusions, that does not have
an upstream effect on Iyengar's methods or the validity of her work
standing alone. Iyengar's methodology also is well recognized in
the field. Surveys like this have been approved as a means to
estimate overpayment by car buyers in class action cases involving
allegedly defective automobile control designs. Moreover, the
testimony is offered now at the class certification stage of the
case. GM's challenges -- to the soundness of certain underlying
factual assumptions or to the weight of her analysis -- are
questions properly for the fact finder to consider.
Richard Eichmann
Mr. Eichmann is a Managing Director for NERA Economic Consulting.
His career spans 25 years of work as an economist, during which he
has "performed numerous quantitative forecasts, econometric models,
valuations, and statistical and damages model analyses." He was
engaged by the Plaintiffs' counsel to estimate the damages
sustained by the Plaintiffs resulting from the alleged defect in
GM's 8L transmissions used in class vehicles.
Mr. Eichmann's report lists voluminous sources of information that
he reviewed including academic literature pertinent to techniques
for estimating such damages, pleadings and documents disclosed by
the defendant during discovery, documents relating to NHTSA's
investigation of defect reports for the class vehicles, service
bulletins and reports of GM internal studies about the defect, and
deposition testimony by the Defendant's engineers and other
witnesses. Eichmann postulated three methods (market simulation,
review of GM's own extensive warranty service records, and hedonic
regression analysis) for estimating the different types of damages
alleged by the Plaintiffs.
GM argues that Eichmann's testimony about methodology that could be
used to calculate common damages on a class-wide basis must be
disregarded because he used the manufacturer suggested retail price
("MSRP") as a benchmark of market value, which, GM says, is not an
accurate measure of a vehicle's value; his estimate of "cost of
repair" for class vehicles is unrealistic; his estimate of
"diminution in value" ignores other factors that affect a vehicle's
resale value such as age, mileage, and condition; and his damage
estimates are invalid because he only calculated damages for
individuals on an "average" basis across the entire population of
class members.
Judge Lawson holds that there is no basis to exclude Eichmann's
opinions at this stage of the case. As he noted, the use of
conjoint surveys as a foundation for modeling class-wide damages in
product defect cases has been held by the Court and by many others
to be a valid and reliable method. Similarly, other federal courts
have rejected in other cases all of the same criticisms leveled by
the Defendant, and Eichmann's testimony based on his espoused
market simulation and hedonic regression methods regularly has been
accepted as admissible evidence demonstrating class-wide damages in
product defect cases. Moreover, as the Plaintiffs correctly point
out, "there is not an implicit requirement in Federal Rule of
Evidence 702 for the proffered expert to make complicated
mathematical calculations."
Alice Wachs
Ms. Wachs is the President of Integral Concepts, Inc. in Detroit,
Michigan, and formerly was a Managing Scientist for Exponent, in
Menlo Park, California. She holds a bachelor's degree in
mathematics, master's degrees in statistics and industrial
engineering, and a Ph.D. in operations research and applied
mathematics, all from the University of Michigan. The Plaintiffs
engaged her to "review and analyze GM warranty data as it pertains
to warranty repairs for 'shudder' and 'harsh shift/drive quality'
on Class Vehicles associated with the defect alleged," "to review
GM documents related to transmission issues," and "to identify,
review, and analyze information needed to perform a warranty
forecast."
Ms. Wachs' report identifies voluminous materials that she
considered including warranty and service data produced by the
Defendant, internal correspondence from GM relating to a yearslong
investigation of 8L transmission warranty problems, the lawsuit
papers and testimony, and information produced by individual
Plaintiffs concerning their owned vehicles.
Ms. Wachs determined, based on the high and consistently rising
service rates, that GM knew at least by January 2017, both that the
8L-equipped vehicles had extremely high service rates, and that the
options identified by GM for addressing the problem had failed to
cure the issues. She concluded that the Class Vehicles suffer from
transmission problems that appear to manifest commonly as shudder
and/or poor drive quality. Like the Class Representatives, many of
the Class Vehicle owners required repeated servicing for both
problems. This resulted in cumulative claims rates that were higher
than the number of vehicles that went to get serviced (meaning
there was more than one claim per vehicle), and in certain models
eventually exceeded 100%. Since this information comes from GM's
own warranty data, GM knew the magnitude of these cumulative claims
rates for shudder and/or drive quality issues for any given
month/year in any given month/year. GM also kept track of
cumulative claims rates, and could have assessed the extent of the
warranty impact at any point.
GM levels a variety of criticisms at the report and Dr. Wachs's
opinions, many of which are directed to the assumptions she
accepted and the data she considered. For example, it disputes her
use of the phrase "common issue," confounding its common meaning
with the technical connotation found in Federal Rule of Civil
Procedure 23. It also faults the report as overlooking significant
variances in warranty repair rates between different class models
and across different geographic regions. And it believes that the
opinions are not helpful at the class certification phase of the
case because it questions the validity of using the data from
"aggregated" warranty claims to compute the incidence of a presumed
common defect in an individual vehicle.
These criticisms do not undermine the admissibility of the
opinions, Judge Lawson finds. He says, it is well settled, and has
been so for decades, that under the permissive framework
established by Daubert and Rule 702, "'rejection of expert
testimony is the exception, rather than the rule.'" Nothing in GM's
presentation establishes such exceptional circumstances that the
wholesale exclusion of Wachs' opinion testimony is warranted under
Rule 702. GM does not generally challenge the validity of the
various statistical methods espoused by Wachs or their
acceptability among statisticians in her field. The opinions
expressed in the report also are substantiated by an ample factual
basis, most of which comprises data that was produced by GM itself.
GM has not identified sufficient reasons for excluding Wachs'
opinions.
William McVea
Mr. McVea is the Principal Engineer and President of KBE, Inc., in
Syracuse, New York, a position which he has held since 1997. He
holds a bachelor's degree in Mechanical Engineering from the
Rochester Institute of Technology and a Ph.D. in Agricultural
Engineering from Purdue University. His career spans more than 40
years as a practicing engineer in industry and academia.
Mr. McVea was engaged by the Plaintiffs "to determine if the design
and/or architecture of the Defendant's 8L transmissions had a
common defect causing NVH (Noise Vibration Harshness) or handling
issues including in lower gears, surging, lurching, jerking,
lunging, rough coast downs, and at higher gears, shuddering or
shaking at steady state speeds."
GM's attack on McVea's opinions comes on two fronts. First, it
contends that the opinions must be stricken in their entirety
because of "discovery misconduct" consisting of "ex parte" vehicle
inspections McVea conducted without its representatives present,
his failure to record or otherwise document certain inspections,
his use of an inspection protocol with which GM disagrees, and his
implementation of certain software tools made by GM and others.
The record does not back up these arguments and they must be
rejected, Judge Lawson opines. GM's entire presentation of its
allegations of supposed "discovery misconduct" is disingenuous and
inapposite to any issues presently before the Court. Moreover,
further correspondence from GM's counsel plainly indicates that the
defense team was aware of and expressly contemplated the likelihood
that the Plaintiffs would have their vehicles inspected at their
own initiative, and they represented merely that it was "likely"
that if the Plaintiffs did so, then GM also would request an
opportunity to make its own inspections. GM has cited no legal
authority for the proposition that a retained expert is barred from
inspecting his client's own property at the client's initiative
outside the presence of opposing parties or their counsel. Hence,
McVea's opinions are admissible under prevailing Rule 702
jurisprudence.
David Hartfelder
Mr. Hartfelder is GM's Systems Safety Director. The Defendant
proposes to have him testify about how GM evaluated the defects in
the "subject transmissions regarding personal injury, property
damage, or safety risks." The Plaintiffs' main complaint is that
Hartfelder never furnished a full report required by Rule
26(a)(2)(B). Instead, the defense counsel summarized Hartfelder's
proposed testimony and the factual basis as permitted by Rule
26(a)(2)(C).
Judge Lawson holds that the Plaintiffs have not identified any
decisions supporting their novel argument that an employee of the
defendant designated as a Rule 30(b)(6) witness transforms into a
"retained expert" merely because he (or his staff) undertakes an
investigation of facts related to litigation while preparing for
his deposition. The context clearly shows that Hartfelder was not
retained or specially employed for the purpose of the litigation,
and the topics on which he proposes to testify are within the ambit
of his experiential expertise as the Systems Safety Director for
the Defendant.
Mr. Hartfelder's proposal to offer the challenged opinion did not
trigger any heightened disclosure requirement under Rule
26(a)(2)(B). He is a non-retained expert for whom only summary
disclosures under Rule 26(a)(2)(C) were required. It is undisputed
that a summary disclosure was produced timely. The proposed
testimony is comfortably within Hartfelder's area of expertise, and
the Plaintiffs do not plausibly argue otherwise. The motion to
exclude his testimony is denied.
Robert Lange
According to his CV, Lange has more than 50 years of experience as
an automotive engineer. He holds undergraduate and master's degrees
in mechanical engineering from the University of Michigan. From
1994 to 2008, he was the Executive-in-Charge, Engineering Director,
and Executive Director of the Vehicle Structure and Safety
Integration division of GM.
GM proposes to elicit testimony from him that the majority (between
60 and 95%) of class vehicles in different segments never have been
presented for warranty service for "harsh shift" issues, between 40
and 80% of class models sold never have been submitted for warranty
service for "shudder" issues, and among different models and
geographic regions, the occurrence of warranty complaints about
both issues is highly variable, such that the data suggest that the
complaints are caused by other issues, not by a common inherent
design defect.
The Plaintiffs argue that (1) Lange is unqualified to opine about
any topics in statistical analysis because his education is in
engineering, he is "not a statistician," and he "holds no degrees
in statistics or mathematics," (2) he did not "do the work" of
warranty records statistical analysis, which was assigned to GM's
fellow expert on whom he relies (Dr. Robert Brown), he did not have
the expertise to check that the work was done correctly, and he
cannot vouch for the reliability of the methods employed, (3) Dr.
Brown was not disclosed as an expert witness for the Defendant, so
he cannot independently testify about the reliability of his work,
and (4) in any event, Lange's testimony about statistical analysis
is duplicative of testimony that will be offered by another defense
expert, Dr. Rose Ray (whose testimony has not been challenged), and
it therefore should be excluded as cumulative under Evidence Rule
403.
Judge Lawson holds that Lange is qualified by his experience and
training to opine on the use of warranty service data analysis as
it pertains to the identification and classification of vehicle
defects. The Plaintiffs have not shown that any information
underlying his report is beyond the realm of the types of
information usually relied upon by engineers in his field. His
testimony is not cumulative of that to be offered by other
witnesses. Their motion to limit his testimony is denied.
In sum, the proponents of their respective expert witnesses have
established the foundational requirements for admission of their
opinion testimony under Evidence Rule 702 and the cases that
construe that rule.
A full-text copy of the Court's July 27, 2022 Opinion & Order is
available at https://tinyurl.com/2p8ty4sy from Leagle.com.
GENERAL MOTORS: Counts, et al., Seek Class Certification
--------------------------------------------------------
In the class action lawsuit captioned as JASON COUNTS, et al.,
individually and on behalf of themselves and all others similarly
situated, v. GENERAL MOTORS LLC and ROBERT BOSCH LLC, Case No.
1:16-cv-12541-TLL-PTM (E.D. Mich.), the Plaintiffs move for
certification of the following Classes under Rule 23(b)(3) for
claims involving their 2014-2015 Chevrolet diesel Cruze vehicles
("diesel Cruzes"):
-- Multi-State Consumer Protection Class
For violations of state consumer protection laws, all
persons or entities who purchased or leased one or more
diesel Cruzes from a GM-authorized dealer or distributor in
Arizona, 1 California, Connecticut, Florida, Illinois,
Maryland, Massachusetts, Minnesota, Missouri, Nevada, New
Jersey, New York, Ohio, Pennsylvania, Texas, Washington,
and West Virginia.
The Plaintiffs further move for appointment of the
following Plaintiffs as Class Representatives for the
Multi-State Consumer Protection Class: Derek Long (West
Virginia Plaintiff); Bassam Hirmiz (Arizona Plaintiff);
Jason Silveus (Florida Plaintiff); John Miskelly (Maryland
Plaintiff); Thomas Hayduk (New York Plaintiff); and Joshua
Rodriguez (Texas Plaintiff).
-- Multi-State Fraudulent Concealment Class
For common law claims of fraudulent concealment, all
persons or entities who purchased or leased one or more
diesel Cruzes from a GM-authorized dealer or distributor in
Alabama, California, Connecticut, Delaware, Georgia,
Kentucky, Maryland, Minnesota, New Jersey, New York, Ohio,
Pennsylvania, and Tennessee.
The Plaintiffs also move for appointment of the following
Plaintiffs as Class Representatives for the Fraudulent
Concealment Class: John Miskelly (Maryland Plaintiff);
Thomas Hayduk (New York Plaintiff).
Alternatively, the Plaintiffs propose certification of the
following state-specific classes:
-- Alabama Class (fraudulent concealment claim only):
"All persons who purchased or leased a diesel Cruze from a
GM-authorized dealer or distributor in Alabama."
-- Arizona Class (consumer protection claim only, against GM
only):
"All persons who purchased or leased a diesel Cruze from a
GM-authorized dealer or distributor in Arizona.
-- California Class (consumer protection and fraudulent
concealment claims):
"All persons who purchased or leased a diesel Cruze from a
GM-authorized dealer or distributor in California.
-- Connecticut Class (consumer protection and fraudulent
concealment claims):
"All persons who purchased or leased a diesel Cruze from a
GM-authorized dealer or distributor in Connecticut.
-- Delaware Class (fraudulent concealment claim only):
"All persons who purchased or leased a diesel Cruze from a
GM-authorized dealer or distributor in Delaware."
-- Florida Class (consumer protection claim only):
"All persons who purchased or leased a diesel Cruze from a
GM-authorized dealer or distributor in Florida."
-- Georgia Class (fraudulent concealment claim only):
"All persons who purchased or leased a diesel Cruze from a
GM-authorized dealer or distributor in Georgia."
-- Illinois Class (consumer protection claim only):
"All persons who purchased or leased a diesel Cruze from a
GM-authorized dealer or distributor in Illinois."
-- Kentucky Class (fraudulent concealment claim only):
"All persons who purchased or leased a diesel Cruze from a
GM-authorized dealer or distributor in Kentucky."
-- Maryland Class (consumer protection and fraudulent
concealment claims):
"All persons who purchased or leased a diesel Cruze from a
GM-authorized dealer or distributor in Maryland."
-- Massachusetts Class (consumer protection claim only):
"All persons who purchased or leased a diesel Cruze from a
GM-authorized dealer or distributor in Massachusetts."
-- Minnesota Class (consumer protection and fraudulent
concealment claims):
"All persons who purchased or leased a diesel Cruze from a
GM-authorized dealer or distributor in Minnesota."
-- Missouri Class (consumer protection claim only):
"All persons who purchased or leased a diesel Cruze from a
GM-authorized dealer or distributor in Missouri."
-- New Jersey Class (consumer protection and fraudulent
concealment claims):
"All persons who purchased or leased a diesel Cruze from a
GM-authorized dealer or distributor in New Jersey."
-- New York Class (consumer protection and fraudulent
concealment claims):
"All persons who purchased or leased a diesel Cruze from a
GM-authorized dealer or distributor in New York.
-- Ohio Class (consumer protection and fraudulent concealment
claims):
"All persons who purchased or leased a diesel Cruze from a
GM-authorized dealer or distributor in Ohio."
-- Pennsylvania Class (consumer protection and fraudulent
concealment claims):
"All persons who purchased or leased a diesel Cruze from a
GM-authorized dealer or distributor in Pennsylvania."
-- Tennessee Class (fraudulent concealment claim only):
"All persons who purchased or leased a diesel Cruze from a
GM-authorized dealer or distributor in Tennessee."
-- Texas Class (consumer protection claim only):
"All persons who purchased or leased a diesel Cruze from a
GM-authorized dealer or distributor in Texas.
-- Washington Class (consumer protection claim only):
"All persons who purchased or leased a diesel Cruze from a
GM-authorized dealer or distributor in Washington."
-- West Virginia Class (consumer protection claim only):
"All persons who purchased or leased a diesel Cruze from a
GM-authorized dealer or distributor in West Virginia."
As a final alternative to multi-state or individual state classes,
the Plaintiffs seek to certify "a class action with respect to
particular issues" under Rule 23(c)(4) given that common questions
predominate for a plethora of issues under the law of each of the
states in one or both of the multi-state Classes, and class
treatment of those issues is the superior method of resolution.
The Plaintiffs also move for appointment of Hagens Berman Sobol
Shapiro LLP; Sommers Schwartz; Seeger Weiss LLP; Carella, Byrne,
Cecchi, Olstein, Brody & Agnello, P.C., and Hilliard Munoz Gonzales
LLP as Class Counsel for the Classes, under Rule 23(g).
A copy of the Plaintiffs' motion dated Aug. 1, 2022 is available
from PacerMonitor.com at https://bit.ly/3JzLevi at no extra
charge.[CC]
The Plaintiff is represented by:
Steve W. Berman, Esq.
Jessica Thompson, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1301 Second Avenue, Suite 2000
Seattle, WA 98101
Telephone: (206) 623-7292
Facsimile: (206) 623-0594
E-mail: steve@hbsslaw.com
jessicat@hbsslaw.com
- and -
Jason J. Thompson, Esq.
Lance C. Young, Esq.
SOMMERS SCHWARTZ
One Towne Square, Suite 1700
Southfield, MI 48076
Telephone: (248) 355-0300
E-mail: jthompson@sommerspc.com
lyoung@sommerspc.com
- and -
Christopher A. Seeger, Esq.
Jennifer R. Scullion, Esq.
Scott A. George, Esq.
Shauna Itri, Esq.
SEEGER WEISS LLP
555 Challenger Road, 6th Floor
Ridgefield Park, NJ 07660
Telephone: (973) 639-9100
Facsimile: (973) 639-9393
E-mail: cseeger@seegerweiss.com
jscullion@seegerweiss.com
sgeorge@seegerweiss.com
sitri@seegerweiss.com
- and -
James E. Cecchi, Esq.
CARELLA, BYRNE, CECCHI,
OLSTEIN, BRODY & AGNELLO, P.C.
5 Becker Farm Road
Roseland, NJ 07068
Telephone: (973) 994-1700
Facsimile: (973) 994-1744
E-mail: JCecchi@carellabyrne.com
- and -
Robert C. Hilliard, Esq.
HILLIARD MUNOZ GONZALES LLP
719 S Shoreline Blvd., # 500
Corpus Christi, TX 78401
Telephone: (361) 882-1612
E-mail: bobh@hmglawfirm.com
GODADDY.COM LLC: 11th Cir. Vacates Class Cert. Order in Drazen Suit
-------------------------------------------------------------------
The U.S. Court of Appeals for the Eleventh Circuit vacates the
District Court's approval of class certification and settlement in
the case, SUSAN DRAZEN, on behalf of herself and other persons
similarly situated, Plaintiff-Appellee, Godaddy.com, LLC, a
Delaware Limited Liability Company, Defendant-Appellee v. MR. JUAN
ENRIQUE PINTO, Movant-Appellant, Case No. 21-10199 (11th Cir.).
In August 2019, Drazen filed a complaint against GoDaddy in the
Southern District of Alabama alleging that it had violated the
Telephone Consumer Protection Act of 1991 when it allegedly called
and texted Drazen solely to market its services and products
through a prohibited automatic telephone dialing system. Her case
was consolidated with another case that had been litigated by Jason
Bennett in the District of Arizona, Case No. 2:16-cv-03908 (D.
Ariz. 2016), and a third related action filed by John Herrick was
"incorporated into and resolved" by the resolution of this case,
Case No. 2:16-cv-00254 (D. Ariz. 2016).
Ms. Drazen and the plaintiffs in the two other related cases,
Bennett and Herrick, purported to bring a class action on behalf of
similarly situated individuals. After negotiating with GoDaddy, the
three plaintiffs submitted a proposed class settlement agreement to
the District Court.
The class was defined as follows: All persons within the United
States who received a call or text message to his or her cellular
telephone from Defendant from Nov. 4, 2014 through Dec. 31, 2016.
The proposed settlement was structured so that GoDaddy would make
available $35 million in settlement funds for claims that were
approved and for settlement costs. There were two compensation
options for the class members, both subject to pro rata reduction
in the event that too many class members opted into the class. The
class members could either receive $35 in cash or a $150 voucher to
be used exclusively at GoDaddy. Based on the proposed settlement,
the class counsel agreed to ask for no more than 30% in attorneys'
fees in addition to reimbursement of reasonable litigation costs
and expenses. The class counsel also agreed to ask the District
Court to award each named plaintiff $5,000, which GoDaddy did not
oppose.
In response to this motion, the District Court ordered briefing on
the application of Salcedo v. Hanna, 936 F.3d 1162, 1168 (11th Cir.
2019), to the class as proposed in the settlement agreement. The
Eleventh Circuit held in Salcedo that receipt of a single unwanted
text message was not a sufficiently concrete injury to give rise to
Article III standing, and the proposed class definition included
individuals who received only one text message from GoDaddy.
In their briefing, the parties put forth a new class definition:
All persons within the United States to whom, from Nov. 4, 2014
through Dec. 31, 2016, Defendant placed a voice or text message
call to their cellular telephone pursuant to an outbound campaign
facilitated by the web-based software application used by 3Seventy,
Inc., or the software programs and platforms that comprise the
Cisco Unified Communications Manager.
The District Court allowed text-message only recipients to remain
in the class, even though they lacked Article III standing under
the Eleventh Circuit's standards. After conducting a Rule 23(a)
analysis for numerosity, commonality, typicality, and adequacy, and
a Rule 23(b)(3) analysis for predominance, it approved
certification of the class for purposes of settlement in accordance
with the proposed settlement agreement, on the condition that
Herrick be removed as a named plaintiff.
In response, the parties submitted an amended proposed settlement
agreement removing Herrick as a class representative. On June 9,
2020, the District Court then certified the class for settlement
with that change and preliminarily approved the settlement
agreement, requiring any motions for attorneys' fees to be filed by
July 24, 2020, any objections within the class to attorneys' fees
be filed by July 31, 2020, and any objectors to object to the
settlement itself by Aug. 31, 2020.
Next, on July 24, 2020, the class counsel moved for attorneys' fees
equal to 30% of the total settlement fund of $35 million, which
came out to $10.5 million, and $105,410.51 in costs. On Aug. 11,
2020, the District Court approved the class counsel receiving 25%
of the common fund, $8.75 million, in attorneys' fees since "the
issues were not complex" and the "average benchmark" was 25%. It
also granted the $105,410.51 in costs and expenses. Finally, it
granted $5,000 to Drazen, Bennett, and Herrick for their services
as settlement class members.
Then, on Aug. 31, 2020, Juan Pinto objected to the settlement. He
explained that while the class notice had identified an objection
deadline of Aug. 31, 2020, the District Court had awarded
attorneys' fees on Aug. 11, 2020, 20 days ahead of the objection
deadline.
In response to Pinto's argument that it had prematurely awarded
attorneys' fees, the District Court amended its attorneys' fees
order to make all its previous awards "subject to a final
evaluation and review of any objections and at the final approval
hearing." It did not alter the substance of the awards at this
time.
After receiving further briefing from both the parties and Pinto,
the District Court issued its final order, incorporating its
earlier findings that the class met the standards of Rule 23(a) and
Rule 23(b)(3). It addressed Pinto's objection, deciding that the
settlement was not a coupon settlement under CAFA. However, it did
decide to reduce attorneys' fees to 20% of the common fund, or $7
million, because "the results obtained for the Plaintiffs did not
justify an award at the high end of the bench-mark." And, finally,
the District Court awarded the $105,410.51 in costs that the class
counsel had requested through the Plaintiffs. And, with that, the
class action settlement received final approval with attorneys'
fees and costs. Pinto timely appealed.
After that complicated procedural history, the Eleventh Circuit
starts with the basic question of whether it has subject-matter
jurisdiction in the case. It has a lodestar principle that guides
its analysis, and that principle is drawn from TransUnion LLC v.
Ramirez, 141 S.Ct. 2190 (2021). There are two key takeaways from
TransUnion: 1) To satisfy the concrete injury requirement for
standing, a plaintiff alleging a statutory violation must
demonstrate that history and the judgment of Congress support a
conclusion that there is Article III standing; 2) "Every class
member must have Article III standing in order to recover
individual damages." The first point is mainly a refining and
reiteration of Spokeo. The second requires a bit more discussion.
TransUnion says that the Eleventh Circuit can't award damages to
plaintiffs who do not have Article III standing. And Article III
standing goes to the heart of its jurisdiction to hear cases in the
first place. It cannot, therefore, check its Article III
requirements at the door of the class action. Any class definition
that includes members who would never have standing under its
precedent is a class definition that cannot stand. With that
background, the Eleventh Circuit turns to the standing analysis of
the actual Plaintiffs in the case.
The universe of the Plaintiffs under District Court's class
definition includes any individual who received a text message or
phone call on their cellphone from GoDaddy in the specified period.
The more difficult question is whether individuals who have
received a single cellphone call also have standing.
Because the Eleventh Circuit has not received briefing on whether a
single cellphone call is sufficient to meet the concrete injury
requirement for Article III standing and because TransUnion has
clarified that courts must look to history to find a common-law
analogue for statutory harms, it thinks the best course is to
vacate the class certification and settlement and remand in order
to give the parties an opportunity to redefine the class with the
benefit of TransUnion and its common-law analogue analysis.
A full-text copy of the Court's July 27, 2022 Order is available at
https://tinyurl.com/2p8ys47y from Leagle.com.
GREATBANC TRUST: Amended Scheduling Order Entered in Szalanski
--------------------------------------------------------------
In the class action lawsuit captioned as BRENDA SZALANSKI, on
behalf of herself, individually, and on behalf of all others
similarly situated, v. GREATBANC TRUST CO., Case No. (), the Hon.
Magistrate Judge Stephen L. Crocker entered an amended scheduling
order as follows:
-- Answer deadline: August 10, 2022
-- Motion & brief to certify class: January 20, 2023
Response: February 28, 2023
Reply: March 28, 2023
-- Deadline for filing dispositive September 15, 2023
motions:
-- Discovery Cutoff: February 2, 2024
-- Settlement Letters: February 2, 2024
-- Submissions for the final February 16, 2024
pretrial conference:
-- Responses: March 1, 2024
-- First Final Pretrial Conference: March 12, 2024
-- Second Final Pretrial Conference: March 19, 2023
-- Bench Trial: March 25, 2024
GreatBanc is an independent trustee specializing in employee stock
ownership plan (ESOP).
A copy of the Court's order dated July 29, 2022 is available from
PacerMonitor.com at https://bit.ly/3vF2tFI at no extra charge.[CC]
HCA HEALTHCARE: Faces Suit Over Monopolization of Healthcare Market
-------------------------------------------------------------------
BUNCOMBE COUNTY, NORTH CAROLINA and CITY OF ASHEVILLE, NORTH
CAROLINA, on behalf of themselves and all others similarly
situated, Plaintiffs v. HCA HEALTHCARE, INC., HCA MANAGEMENT
SERVICES, LP, HCA, INC., MH MASTER HOLDINGS, LLLP, MH HOSPITAL
MANAGER, LLC, MH MISSION HOSPITAL, LLLP, ANC HEALTHCARE, INC. f/k/a
MISSION HEALTH SYSTEM, INC., and MISSION HOSPITAL, INC.,
Defendants, Case No. 1:22-cv-00147 (W.D.N.C., July 27, 2022) is a
class action against the Defendants for violations of Sections 1
and 2 of the Sherman Antitrust Act.
According to the complaint, the Defendants have enhanced monopoly
power and restricted competition in the health care markets. The
anticompetitive scheme includes: (1) "all-or-nothing" tying
arrangements requiring health insurance plans to contract with all
of Mission's inpatient general acute care (GAC) and outpatient
services; (2) exclusionary requirements in the form of
anti-steering and anti-tiering provisions, which prevent insurance
companies from steering insureds to less expensive and/or higher
quality options as a means to promote competition and reduce
prices; (3) "gag" clauses that prevent insurers from communicating
with employers and patients about the prices they pay for health
care and thus determine how best to reduce costs; and (4) other
anticompetitive conduct relating to the negotiation of pricing for
GAC services. As a result of the scheme, the Defendants have
monopoly power in all these markets, measured either by its
dominant market shares and/or by its supracompetitive prices, says
the suit.
HCA Healthcare, Inc. is a healthcare services firm, with a
principal place of business in Nashville, Tennessee.
HCA Management Services, LP is a healthcare services firm, with a
principal place of business in Nashville, Tennessee.
HCA, Inc. is a healthcare services firm, with a principal place of
business in Nashville, Tennessee.
MH Master Holdings, LLLP is a subsidiary of HCA Healthcare, Inc.
MH Hospital Manager, LLC is a healthcare services provider, with a
principal place of business in North Carolina.
MH Mission Hospital, LLLP is a healthcare services provider, with a
principal place of business in North Carolina.
ANC Healthcare, Inc., formerly known as Mission Health System,
Inc., is a healthcare services provider based in Florida.
Mission Hospital, Inc. is a healthcare services provider based in
Florida. [BN]
The Plaintiffs are represented by:
Robert N. Hunter, Jr., Esq.
Fred Berry, Esq.
John F. Bloss, Esq.
HIGGINS BENJAMIN, PLLC
301 North Elm Street, Suite 800
Greensboro, NC 27401
Telephone: (336) 273-1600
Facsimile: (336) 274-4650
E-mail: rnhunter@greensborolaw.com
fberry@greesnborolaw.com
jbloss@greensborolaw.com
- and –
Eric L. Cramer, Esq.
Jacob M. Polakoff, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-3000
E-mail: ecramer@bm.net
jpolakoff@bm.net
- and –
Robert E. Litan, Esq.
Daniel J. Walker, Esq.
BERGER MONTAGUE PC
2001 Pennsylvania Avenue, NW, Suite 300
Washington, DC 20006
Telephone: (202) 559-9745
E-mail: rlitan@bm.net
dwalker@bm.net
- and –
Brendan P. Glackin, Esq.
Dean M. Harvey, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, Suite 2900
San Francisco, CA 94111
Telephone: (415) 956-1000
E-mail: bglackin@lchb.com
dharvey@lchb.com
- and –
Daniel E. Seltz, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013
Telephone: (212) 355-9500
E-mail: dseltz@lchb.com
HEMINGTON LANDSCAPE: Chavez Files Suit in Cal. Super. Ct.
---------------------------------------------------------
A class action lawsuit has been filed against Hemington Landscape
Services, Inc., et al. The case is styled as Jose Cruz Chavez, and
on behalf of all others similarly situated v. Hemington Landscape
Services, Inc., Does 1–10, Case No. 34-2022-00324239-CU-OE-GDS
(Cal. Super. Ct., Sacramento Cty., July 26, 2022).
The case type is stated as "Other Employment - Unlimited Civil."
Hemington -- https://www.hemington.com/ -- is a full-service
commercial landscape and concrete construction contractor serving
the Sacramento Valley and Northern California.[BN]
The Plaintiff is represented by:
Justin F. Marquez, Esq.
WILSHIRE LAW FIRM, PLC
3055 Wilshire Blvd., Ste. 510
Los Angeles, CA 90010-1145
Phone: 213-381-9988
Fax: 213-381-9989
Email: justin@wilshirelawfirm.com
HIGH POWER: Case Summary & Eight Unsecured Creditors
----------------------------------------------------
Debtor: High Power Concrete, LLC
4063 Lahaman Lane
Dayton, OH 45424
Business Description: The Debtor is primarily engaged in concrete
work, including portland cement and asphalt.
Chapter 11 Petition Date: August 8, 2022
Court: United States Bankruptcy Court
Southern District of Ohio
Case No.: 22-31102
Judge: Hon. Beth A. Buchanan
Debtor's Counsel: Patricia J. Friesinger, Esq.
COOLIDGE WALL CO., L.P.A.
33 West First Street, Suite 200
Dayton, OH 45402
Tel: 937-223-8177
Fax: 937-223-6705
Email: friesinger@coollaw.com
Total Assets: $40,235
Total Liabilities: $1,080,643
The petition was signed by Marcelo S. De Oliveira as sole member.
A full-text copy of the petition containing, among other items, a
list of the Debtor's eight unsecured creditors is available for
free at PacerMonitor.com at:
https://www.pacermonitor.com/view/WB2N64Q/High_Power_Concrete_LLC__ohsbke-22-31102__0001.0.pdf?mcid=tGE4TAMA
HIGHLAND-KINGDALE ASSOCIATES: Cheli Seeks Equal Access to Property
------------------------------------------------------------------
CHARLENE CHELI, on behalf of herself and all others similarly
situated, Plaintiff v. HIGHLAND-KINGDALE ASSOCIATES, LLC; FORMAN
MILLS, INC.; and FAMILY DOLLAR OPERATIONS, INC., Defendants, Case
No. 1:22-cv-04756 (D.N.J., July 26, 2022) is a class action against
the Defendants for violation of Title III of the Americans with
Disabilities Act and the New Jersey Law against discrimination.
According to the complaint, the Defendants' places of public
accommodation have architectural barriers to people with
disabilities. These access barriers include: (1) parking and
exterior accessible route, (2) access to goods and services, and
(3) restrooms. The Plaintiff and similarly situated customers have
personally encountered repeated exposure to architectural barriers
at the Defendants' property and those harmful conditions have
endangered their safety and caused them great distress, says the
suit.
Highland-Kingdale Associates, LLC is an owner and operator of a
shopping center/plaza located at 20 W. Park Avenue, Vineland, New
Jersey.
Forman Mills, Inc. is an owner and operator of a retail store in
New Jersey.
Family Dollar Operations, Inc. is an owner and operator of a retail
store in New Jersey. [BN]
The Plaintiff is represented by:
Jon G. Shadinger Jr., Esq.
SHADINGER LAW, LLC
717 E. Elmer St., Suite 7
Vineland, NJ 08360
Telephone: (609) 319-5399
Facsimile: (314) 898-0458
E-mail: js@shadingerlaw.com
HIGHLANDS COMMUNITY: Iranrouh Files Suit in Cal. Super. Ct.
-----------------------------------------------------------
A class action lawsuit has been filed against Highlands Community
Charter and Technical Schools, et al. The case is styled as Marjan
Iranrouh, and on behalf of all similarly situated individuals v.
Highlands Community Charter and Technical Schools, Does 1–100,
Case No. 34-2022-00324342-CU-OE-GDS (Cal. Super. Ct., Sacramento
Cty., July 27, 2022).
The case type is stated as "Other Employment - Unlimited Civil."
Highlands Community Charter and Technical Schools --
https://www.hccts.org/ -- is a charter school in Sacramento,
California offering high school diploma program, English language
classes and career technical education.[BN]
The Plaintiff is represented by:
Elliott J. Siegel, Esq.
KING & SIEGEL, LLP
724 S. Spring Street, Suite 201
Los Angeles, CA 90014
Phone: 213-465-4802
Fax: 213-465-4803
Email: elliot@kingsiegel.com
- and -
Xavier Villegas, Esq.
LAW OFFICE OF XAVIER VILLEGAS
2390 Las Posas Road, C168
Camarillo, CA 93010
Phone: 805-250-7488
Fax: 805-250-7499
Email: Xavier@XavierVillegasLaw.com
HOPPER (USA) INC: Acosta Files Suit in N.D. Illinois
----------------------------------------------------
A class action lawsuit has been filed against Hopper (USA), Inc.
The case is styled as Shalimar Acosta, individually and on behalf
of all others similarly situated v. Hopper (USA), Inc., Case No.
1:22-cv-03974 (N.D. Ill., July 31, 2022).
The nature of suit is stated as Other Fraud.
Hopper Inc. -- https://www.hopper.com/ -- designs and develops
software solutions. The Company offers application that uses
predictive analysis to make travel recommendations.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Road, Ste. 412
Great Neck, NY 11021
Phone: (516) 268-7080
Fax: (516) 234-7800
Email: spencer@spencersheehan.com
IMPAX LABORATORIES: Stipulated Final Judgment in Fleming Suit OK'd
------------------------------------------------------------------
Judge Haywood S. Gilliam, Jr., of the U.S. District Court for the
Northern District of California, Oakland Division, signed the
parties' Stipulated Final Judgment in the lawsuit titled GREG
FLEMING, Individually and on Behalf of All Others Similarly
Situated, Plaintiff v. IMPAX LABORATORIES INC., et al., Defendants,
Case No. 4:16-cv-06557-HSG (N.D. Cal.).
The matter came before the Court for hearing pursuant to the Order
of the Court, dated Nov. 22, 2021, on the application of the
Settling Parties for approval of the Settlement set forth in the
Second Amended Stipulation of Settlement, dated Oct. 27, 2021 (the
"SASS").
Having considered all papers filed and proceedings held and
otherwise being fully informed in the premises and good cause
appearing therefore, on July 15, 2022, the Court issued its Order
Granting Final Approval of Class Action Settlement, Approval of
Plan of Allocation, Award of Attorneys' Fees and Expenses, and
Awards to Plaintiffs Pursuant to 15 U.S.C. Section 78u-4(a)(4).
Accordingly, the Court authorizes and directs implementation and
performance of all the terms and provisions of the SASS, as well as
the terms and provisions thereof. The Action and all claims
contained therein are dismissed with prejudice as to the
Plaintiffs, and the other Class Members and as against each and all
of the Released Defendant Parties. The Settling Parties are to bear
their own costs except as otherwise provided in the SASS.
The Stipulation provides that no Person will have any claim against
the Plaintiffs, the Lead Counsel, or the Claims Administrator, or
any other Person designated by the Lead Counsel based on
determinations or distributions made substantially in accordance
with the SASS and the Settlement contained therein, the Plan of
Allocation, or further order(s) of the Court.
Upon the Effective Date, the Plaintiffs, and each of the Class
Members will be deemed to have, and by operation of this Judgment
will have, fully, finally and forever waived, released, discharged,
and dismissed each and every one of the Released Claims against
each and every one of the Released Defendant Parties with
prejudice.
Upon the Effective Date, the Defendants and each and every Released
Defendant Party will be deemed to have, and by operation of this
Judgment will have, fully, finally and forever waived, released,
discharged, and dismissed the Released Plaintiff Parties from all
Released Defendants' Claims (including, without limitation, Unknown
Claims). Claims to enforce the terms of the SASS are not released.
Without affecting the finality of this Judgment in any way, the
Court retains continuing jurisdiction over: (a) implementation of
the Settlement and any award or distribution of the Settlement
Fund, including interest earned thereon; (b) disposition of the
Settlement Fund; and (c) all parties for the purpose of construing,
enforcing and administering the Settlement.
The Court finds that during the course of the Action, the Settling
Parties and their respective counsel at all times complied with the
requirements of Federal Rule of Civil Procedure 11.
Without further order of the Court, the Settling Parties may agree
to reasonable extensions of time to carry out any of the provisions
of the SASS.
The Court's orders entered during this Action relating to the
confidentiality of information will survive this Settlement.
A full-text copy of the Court's Stipulated Final Judgment dated
July 21, 2022, is available at https://tinyurl.com/nhjejszs from
Leagle.com.
INFINITY INSURANCE: Unfairly Profited From COVID-19, Torrez Says
----------------------------------------------------------------
SANDY TORREZ, individually and on behalf of all others similarly
situated v. INFINITY INSURANCE COMPANY and KEMPER CORPORATION, Case
No. 2:22-cv-05171 (C.D. Cal., July 26, 2022) seeks to end the
Defendants' practice of unfairly profiting from the global COVID-19
pandemic.
Beginning in March 2020, states across the country, including
California, began to enforce strict social distancing measures to
slow the spread of COVID-19. This included closing schools and
businesses and instituting strict "stay-at-home" orders that
prevented most individuals from leaving their homes for extended
periods of time.
While many companies, industries, and individuals have suffered
financially as a result of the COVID-19 pandemic, auto insurers
like Infinity have scored a windfall. Not surprisingly, as a result
of state-wide social distancing and stay-at-home measures, there
has been a dramatic reduction in driving, and an attendant
reduction in driving-related accidents. This decrease in driving
and accidents has significantly reduced the number of claims that
auto insurers like Defendants have paid, resulting in a drastic and
unfair increase in Defendants' profits at the expense of their
customers, says the suit.
One published report calculates, very conservatively, that at least
a 30% average refund of paid premiums would be required to make up
for the excess amounts paid by consumers for just the period
between mid-March and the end of April of 2020.
Despite full knowledge of these facts, the Defendants continued to
charge and collect excessive premiums throughout 2020 and 2021 and
have failed to issue adequate refunds. The Defendants' refund
program was inadequate to compensate its customers for overpayments
resulting from COVID-19. The program gave only a 15% refund to auto
insurance policyholders in April and May of 2020 and only an
additional 5% for June 2020, the suit asserts.
As a result, the Defendants scored a windfall of more than $100
million in surplus earned premiums compared to 2019, even after
accounting for the premium relief they provided to policyholders,
the suit added.
To remedy Defendants' alleged unlawful conduct, Plaintiff brings
this class action alleging violations of California state law. The
Plaintiff seeks disgorgement of the ill-gotten gains obtained by
the Defendants to the detriment of their customers, all available
damages, punitive damages, declaratory and injunctive relief, and
all other available relief.
Sandy Torrez is an adult resident of Inglewood, California. The
Plaintiff has held a personal auto insurance policy purchased from
Infinity during the time period relevant to this lawsuit.
Kemper sells personal automobile and other types of insurance in 20
states around the country, including California.
Infinity Insurance sells personal automobile insurance in states
around the country, including California. Infinity issued auto
insurance policies to Plaintiff and the members of the putative
class during the time period at issue.[BN]
The Plaintiff is represented by:
G. Thomas Martin, III, Esq.
Nicholas J. Bontrager, Esq.
MARTIN & BONTRAGER, APC
4605 Lankershim Blvd., Suite 535
Toluca Lake, CA 91602
Telephone: (323) 940-1700
Facsimile: (323) 328-8095
E-mail: tom@mblawapc.com
nick@mblawapc.com
- and -
Asaf Agazanof, Esq.
ASAF LAW APC
2330 Westwood Blvd., Second Floor
Los Angeles, CA 90064
Telephone: (424) 254-8870
Facsimile: (888) 254-0651
E-mail: Asaf@Lawasaf.com
J.B. HUNT: Townsend Labor Code Suit Removed to C.D. California
--------------------------------------------------------------
The case styled DAVID TOWNSEND, individually and on behalf of all
others similarly situated v. J.B. HUNT TRANSPORT SERVICES, INC.;
J.B. HUNT TRANSPORT, INC.; and DOES 2 to 10, inclusive, Case No.
20STCV28722, was removed from the Superior Court of the State of
California in and for the County of Los Angeles to the U.S.
District Court for the Central District of California on July 27,
2022.
The Clerk of Court for the Central District of California assigned
Case No. 2:22-cv-05185 to the proceeding.
The case arises from the Defendants' alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to pay minimum wages, failure to provide
meals periods, failure to provide rest periods, failure to pay for
rest periods separately, failure to pay all wages due and owed upon
separation, failure to provide accurate itemized wage statements,
failure to reimburse necessary business expenses, and unfair
business practices.
J.B. Hunt Transport Services, Inc. is an American transportation
and logistics company, with its principal place of business located
in Arkansas.
J.B. Hunt Transport, Inc. is an American transportation and
logistics company, with its principal place of business located in
Arkansas. [BN]
The Defendants are represented by:
Christopher C. McNatt, Jr., Esq.
Rebecca R. Brown, Esq.
SCOPELITIS, GARVIN, LIGHT, HANSON & FEARY, LLP
2 North Lake Avenue, Suite 560
Pasadena, CA 91101
Telephone: (626) 795-4700
Facsimile: (626) 795-4790
E-mail: cmcnatt@scopelitis.com
rbrown@scopelitis.com
JAMAICA POULTRY: Faces Cujcuy Wage-and-Hour Suit in E.D.N.Y.
------------------------------------------------------------
ANTONY CUJCUY, individually and on behalf of all others similarly
situated, Plaintiff v. JAMAICA POULTRY CORP d/b/a JAMAICA POULTRY,
JAMAICA MEAT PACKING CORP., ALI A. HUSSEIN, MOHAMED A. HUSSEIN
a/k/a Mohamed Ahmed, OMAR HUSSEIN a/k/a/ Omar Thabet, MOHAMED
ALTAWIL, AZIZ HAMOOD, JOHN DOE CORPORATIONS 1-10, and RICHARD ROES
1-10, Defendants, Case No. 1:22-cv-04433 (E.D.N.Y., July 27, 2022)
is a class action against the Defendants for violations of the Fair
Labor Standards Act and the New York Labor Law including failure to
pay overtime wages, failure to provide wage notices, and failure to
provide accurate wage statements.
The Plaintiff was employed by the Defendants as a non-exempt worker
from the latter part of 2019 until the middle of 2020.
Jamaica Poultry Corp, doing business as Jamaica Poultry, is a
poultry business based in New York.
Jamaica Meat Packing Corp. is a meat packing business based in New
York. [BN]
The Plaintiff is represented by:
David Harrison, Esq.
Julie Salwen, Esq.
HARRISON, HARRISON & ASSOCIATES, LTD.
110 State Highway 35, Suite 10
Red Bank, NJ 07701
Telephone: (718) 799-9111
E-mail: dharrison@nynjemploymentlaw.com
JORDAN'S FURNITURE: Luis Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Jordan's Furniture,
Inc. The case is styled as Kevin Yan Luis, individually and on
behalf of all others similarly situated v. Jordan's Furniture,
Inc., Case No. 1:22-cv-06473 (S.D.N.Y., July 29, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Jordan's Furniture -- https://www.jordans.com/ -- is an American
furniture retailer in New England.[BN]
The Plaintiff is represented by:
Noor Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
JUICY'S VAPOR: Faces Schmitendorf Suit Over Telemarketing Messages
------------------------------------------------------------------
BRADY SCHMITENDORF, individually and on behalf of all others
similarly situated v. JUICY'S VAPOR LOUNGE INC., an Oklahoma
corporation, Case No. 2:22-cv-02293 (D. Kan., July 26, 2022) seeks
to stop the the Defendant from violating the Telephone Consumer
Protection Act by sending unsolicited telemarketing text messages
to consumers who registered their phone numbers on the Do Not Call
registry, and to otherwise obtain injunctive and monetary relief
for all persons injured by the Defendant's actions.
According to the complaint, the Defendant sends telemarketing text
messages to consumers, including Plaintiff, across the U.S.
soliciting the consumers to purchase their products.
Defendant Juicy's Vapor Lounge sells tobacco products including
e-cigarettes, vapers, vaper liquids and other related products to
consumers in Kansas and other states across the U.S.[BN]
The Plaintiff is represented by:
M. Cory Nelson, Esq.
MCN LAW LLC
12433 Antioch Rd. No. 25442
Overland Park, KS 66225
Telephone: (913) 358-5800
E-mail: mcorynelson@mcnlawllc.com
- and -
Stefan Coleman, Esq.
COLEMAN PLLC
66 West Flagler Street, Suite 900
Miami, FL 33130
Telephone: (877) 333-9427
E-mail: law@stefancoleman.com
- and -
Avi R. Kaufman, Esq.
KAUFMAN P.A.
237 S Dixie Highway, Floor 4
Coral Gables, FL 33133
Telephone: (305) 469-5881
E-mail: kaufman@kaufmanpa.com
JUUL LABS: E-Cigarette Ads Target Youth, Fairfax County Suit Says
-----------------------------------------------------------------
FAIRFAX COUNTY PUBLIC SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-04311 (N.D. Cal., July 26, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of Virginia 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.
Fairfax County Public Schools is a school division in the U.S.,
with its administrative offices located in Falls Church, Virginia.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
Thomas P. Cartmell, Esq.
Jonathan P. Kieffer, Esq.
Tyler W. Hudson, Esq.
WAGSTAFF & CARTMELL LLP
4740 Grand Ave., Ste. 300
Kansas City, MO 64112
Telephone: (816) 701-1100
Facsimile: (816) 531-2372
E-mail: tcartmell@wcllp.com
jpkieffer@wcllp.com
thudson@wcllp.com
- and –
Kirk J. Goza, Esq.
Brad Honnold, Esq.
GOZA & HONNOLD LLC
9500 Nall Ave., Ste. 400
Overland Park, KS 66207
Telephone: (913) 451-3433
E-mail: kgoza@gohonlaw.com
bhonnold@gohonlaw.com
- and –
Andy D. Birchfield, Jr., Esq.
Joseph G. VanZandt, Esq.
BEASLEY ALLEN CROW METHVIN PORTIS & MILES, LLC
234 Commerce Street
Montgomery, AL 36103
Telephone: (334) 269-2343
E-mail: Andy.Birchfield@BeasleyAllen.com
Joseph.VanZandt@BeasleyAllen.com
- and –
Rahul Ravipudi, Esq.
PANISH SHEA & BOYLE LLP
11111 Santa Monica Boulevard, Suite 700
Los Angeles, CA 90025
Telephone: (310) 477-1700
Facsimile: (310) 477-1699
E-mail: ravipudi@psblaw.com
- and –
John P. Fiske, Esq.
BARON & BUDD, P.C.
11440 West Bernardo Court Suite 265
San Diego, CA 92127
Telephone: (858) 251-7424
Facsimile: (214) 520-1181
E-mail: jfiske@baronbudd.com
- and –
Khaldoun Baghdadi, Esq.
WALKUP MELODIA KELLY & SCHOENBERGER, P.C.
650 California Street, 26th Floor
San Francisco, CA 94108
Telephone: (415) 617-1269
E-mail: kbaghdadi@walkuplawoffice.com
JUUL LABS: School Board Sues Over Deceptive Youth E-Cigarette Ads
-----------------------------------------------------------------
SCHOOL BOARD OF THE CITY OF VIRGINIA BEACH, on behalf of itself and
all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A
PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER;
HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT
SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS
USA, INC., Defendants, Case No. 3:22-cv-04306 (N.D. Cal., July 26,
2022) is a class action against the Defendants for negligence,
gross negligence, and violations of Virginia 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.
School Board of the City of Virginia Beach is a school division in
the U.S., with its administrative offices located in Virginia
Beach, Virginia.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
Thomas P. Cartmell, Esq.
Jonathan P. Kieffer, Esq.
Tyler W. Hudson, Esq.
WAGSTAFF & CARTMELL LLP
4740 Grand Ave., Ste. 300
Kansas City, MO 64112
Telephone: (816) 701-1100
Facsimile: (816) 531-2372
E-mail: tcartmell@wcllp.com
jpkieffer@wcllp.com
thudson@wcllp.com
- and –
Kirk J. Goza, Esq.
Brad Honnold, Esq.
GOZA & HONNOLD LLC
9500 Nall Ave., Ste. 400
Overland Park, KS 66207
Telephone: (913) 451-3433
E-mail: kgoza@gohonlaw.com
bhonnold@gohonlaw.com
- and –
Andy D. Birchfield, Jr., Esq.
Joseph G. VanZandt, Esq.
BEASLEY ALLEN CROW METHVIN PORTIS & MILES, LLC
234 Commerce Street
Montgomery, AL 36103
Telephone: (334) 269-2343
E-mail: Andy.Birchfield@BeasleyAllen.com
Joseph.VanZandt@BeasleyAllen.com
- and –
Rahul Ravipudi, Esq.
PANISH SHEA & BOYLE LLP
11111 Santa Monica Boulevard, Suite 700
Los Angeles, CA 90025
Telephone: (310) 477-1700
Facsimile: (310) 477-1699
E-mail: ravipudi@psblaw.com
- and –
John P. Fiske, Esq.
BARON & BUDD, P.C.
11440 West Bernardo Court Suite 265
San Diego, CA 92127
Telephone: (858) 251-7424
Facsimile: (214) 520-1181
E-mail: jfiske@baronbudd.com
- and –
Khaldoun Baghdadi, Esq.
WALKUP MELODIA KELLY & SCHOENBERGER, P.C.
650 California Street, 26th Floor
San Francisco, CA 94108
Telephone: (415) 617-1269
E-mail: kbaghdadi@walkuplawoffice.com
KAHKOW USA LLC: Martinez Files ADA Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Kahkow USA, LLC. The
case is styled as Pedro Martinez, individually and as the
representative of a class of similarly situated persons v. Kahkow
USA, LLC, Case No. 1:22-cv-04438-AMD-TAM (E.D.N.Y., July 28,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Kahkow USA -- https://kahkow.com/ -- is a one-stop-shop for
chocolate makers and chocolate lovers, offering unique cacao bean
profiles and cacao products such as mass, nibs, butter, and
powder.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
KATE BROWN: Court Lifts Stay of Figueroa Class Action
-----------------------------------------------------
In the class action lawsuit captioned as DAVID BRUCE FIGUEROA, v.
KATE BROWN, Case No. 6:21-cv-00079 (D. Or.), the Hon. Judge Stacie
F. Beckerman entered an order lifting the stay of this action.
Any motions to dismiss or amend the operative complaint in this
case (or, alternatively, an answer) shall be filed by October 5,
2022 (i.e., thirty days after the deadline to opt out of the Maney
class action).
The Court has now certified two classes of plaintiffs in the Maney
class action:
-- the Damages Class, which includes all adults incarcerated
in ODOC facilities who were incarcerated on or after
February 1, 2020, and while incarcerated, tested positive
or were otherwise diagnosed with COVID-19 (and if they
became incarcerated after February 1, 2020, tested positive
or were otherwise diagnosed with COVID-19 at least 14 days
after they entered ODOC custody); and
-- the Wrongful Death Class.
The nature of suit states Prisoner Civil Rights.[CC]
KBR INC: Julio Sues Over Failure to Pay Kitchen Workers' Overtime
-----------------------------------------------------------------
CARLOS JULIO, on behalf of himself and all other persons similarly
situated employees, Plaintiff v. KBR, INC., BOLTON HOLDINGS, LLC
d/b/a INDUSTRIAL TENT SYSTEMS LLC, BOLTON HOLDINGS, LLC d/b/a
LODGING SOLUTIONS LLC, INDUSTRIAL TENT SYSTEMS, LLC, LODGING
SOLUTIONS, LLC, and STAR PAYMENT SYSTEMS, INC., Defendants, Case
No. 3:22-cv-00530-HEH (E.D. Va., July 29, 2022) brings this
collective and class action complaint against the Defendants for
their alleged unlawful employment policy and practice that
willfully, intentionally, and repeatedly violated the Fair Labor
Standards Act and the Virginia Overtime Wage Act.
The Plaintiff has worked for the Defendants as a kitchen worker at
Fort Pickett at Fort Pickett in Blackstone, Virginia from
approximately August 24, 2021 to November 18, 2021.
The Plaintiff claims that despite regularly working more than 40
hours per week, the Defendants willfully failed to pay him and
other similarly situated employees any overtime compensation at the
rate of one and one-half times their regular rate of pay for all
hours worked in excess of 40 per workweek.
The Plaintiff seeks to recover all unpaid overtime for himself and
all other similarly situated kitchen workers as a result of the
Defendants' unlawful policies and practices. The Plaintiff also
seeks liquidated damages, interest, attorneys' fees and costs, and
other relief as the Court may deem appropriate.
The Corporate Defendants provide various business services. [BN]
The Plaintiff is represented by:
Craig Juraj Curwood, Esq.
Zev H. Antell, Esq.
BUTLER CURWOOD, PLC
140 Virginia Street, Suite 302
Richmond, VA 23219
Tel: (804) 648-4848
E-mail: craig@butlercurwood.com
zev@butlercurwood.com
- and –
Lloyd R. Ambinder, Esq.
Leonor Coyle, Esq.
Michele A. Moreno, Esq.
VIRGINIA & AMBINDER, LLP
40 Broad Street, 7th Floor
New York, NY 10004
Tel: (212) 943-9080
E-mail: lambinder@vandallp.com
lcoyle@vvandallp.com
mmoreno@vandallp.com
KERYX BIOPHARMACEUTICAL: 3rd Cir. Affirms Andruela Suit Dismissal
-----------------------------------------------------------------
In the lawsuit styled IN RE: KERYX BIOPHARMACEUTICAL. John Andruela
and Abraham Kiswani, Appellants, Case No. 21-1870 (3d Cir.), the
United States Court of Appeals for the Third Circuit affirms the
District Court's order dismissing the Appellants' complaint.
Keryx shareholders, Appellant Kisawani and Andreula, on behalf of
themselves and all other public Keryx shareholders, commenced the
putative class action suit against Appellees Keryx and members of
its Board of Directors. They allege that Keryx's Schedule 14A
Definitive Proxy Statement proposing a merger with Akebia
Therapeutics, Inc., included false and misleading statements.
However, the Appellants' claims fail either because their claims
are not plausibly alleged, or the Appellees did not make false or
misleading statements. Because they fail to allege actionable
omissions, misrepresentations, or falsehoods, the Court of Appeals
affirms the District Court's order dismissing the Appellants'
complaint.
Merger Transaction
In December 2017, Akebia, a development-stage biopharmaceutical
company, contacted Keryx, a commercial-stage biopharmaceutical
company, to discuss a potential merger transaction. During
negotiations, Keryx prepared two relevant sets of financial
projections--the first of which was based on Keryx's assumptions
about Akebia's business and the second of which was partially based
on information that Akebia provided to Keryx (the "Adjusted
Projections"). Keryx presented these projections during a special
committee meeting on May 30, 2018.
Between June 12 and 14, 2018, Akebia determined that the completion
of its clinical trial and, by extension, the commercial launch of
its lead product, vadadustat, would be delayed. Given these
developments, Akebia updated its financial projections. Akebia's
CEO then advised Keryx's Interim CEO of this development on June
15, 2018.
On June 27, 2018, MTS Securities LLC, an affiliate of Keryx's
financial advisor for the merger, opined that the merger was
financially fair. MTS based its fairness opinion on, amongst other
information, Keryx's Adjusted Projections--which were prepared
before May 30, 2018, and were not revised to incorporate the
vadadustat delay. The following day, Keryx announced its approval
of the merger transaction. Ultimately, the companies jointly filed
the Proxy on Oct. 30, 2018, and a majority of Keryx's shareholders
approved the transaction on Dec. 12, 2018.
Proxy Statement
The Appellants challenge three statements in the Proxy. The first
statement they challenge is included in the section of the Proxy
describing MTS's fairness opinion (the "Material Developments
Statement"). The Appellants argue that this statement was
misleading because Keryx management was aware of material relevant
developments or matters related to Akebia that were likely to
affect the Merger and that were omitted or remained undisclosed to
MTS.
Similarly, the Appellants challenge a second statement in the MTS
fairness opinion section (the "Best Estimates Statement"). The
Appellants contend that this statement was misleading because Keryx
management did not believe that its projections regarding the
future results of operations and financial performance of Akebia,
reflected its best currently available estimates and judgments.
Lastly, the Appellants challenge two Keryx statements that
characterized the merger as fair (collectively, the "Fairness
Statements").
Procedural History
The Appellants commenced this action on Oct. 16, 2018. Following
their filing of a Consolidated Amended Class Action Complaint on
June 3, 2019, the District Court granted the Appellees' motion to
dismiss on April 15, 2020. The Appellants then sought leave to
amend the complaint, which the District Court granted. In their
Second Amended Complaint, they alleged the Material Developments,
Best Estimates, and Fairness Statements violated Sections 14(a) and
20(a) of the Securities Exchange Act of 1934 and U.S. Securities
and Exchange Commission Rule 14a-9, 17 C.F.R. Section 240.14a-9.
The Appellees again moved to dismiss the Appellants' complaint,
and, on April 1, 2021, the District Court dismissed the Appellants'
action with prejudice, concluding that none of the statements were
actionable. Concerning the Appellants' claim based on the Material
Developments Statement, the District Court first concluded that it
was not plausibly alleged. Although it agreed with the Appellants
that the Material Developments Statement implied that Keryx had
made assurances to MTS as of June 27, 2018, (the date of the
fairness opinion), the District Court determined that the
Appellants had not made sufficient factual allegations that any
material relevant developments were not disclosed.
The District Court then rejected the argument that the Material
Developments Statement was misleading based on the Appellees'
failure to disclose what Keryx believed as of June 27, 2018; it
reasoned that the Proxy explicitly disclosed that the Projections
were prepared before May 30, 2018. In addition, the District Court
determined that the Material Developments Statement was not
material because "a disclosure by Keryx in the Proxy that its
management had not told MTS before June 27, 2018 that its May 2018
projections were stale and not its best estimate as of June 27,
2018, would not have significantly altered the 'total mix' of
information made available" to shareholders. The District Court
reasoned that the Proxy disclosed, among other factors, the
vadadustat delay, MTS's reliance upon Akebia's updated projections,
and MTS's discussions with Akebia about the revised projections.
Circuit Judge Joseph A. Greenaway, Jr., writing for the Panel,
notes that the District Court concluded, among other things, that
the Appellants had not plausibly alleged that Keryx did not believe
the merger was fair. Specifically, it determined that paragraph 10
of the Second Amended Complaint contained conclusory allegations.
Subsequently, Appellants timely appealed the April 1, 2021 order.
Material Developments Statement
The Appellants essentially allege that the Material Developments
Statement was false and misleading because the Appellees had not
disclosed the vadadustat developments to MTS but indicated in the
Proxy that they had shared all material developments with it.
As an initial matter, Judge Greenaway finds the Appellants' claim
based on the Material Developments Statement is not plausibly
alleged. As the District Court concluded, the Appellants'
allegation that "Keryx management was aware of material relevant
developments or matters related to Akebia that may affect the
Merger and that were omitted or remained undisclosed to MTS" is
conclusory.
Even assuming this claim was plausibly alleged, Judge Greenaway
says, it otherwise fails because the Material Developments
Statement is neither false nor misleading. The Proxy explicitly
disclosed that Keryx's Adjusted Projections were prepared before
May 30, 2018. Thus, the Material Developments Statement solely
represents what MTS assumed at the time that Keryx gave MTS the
projections. The Appellants do not dispute that MTS made these
assumptions, so their claims regarding the Material Developments
Statement fail for an additional reason.
Best Estimates Statement
In short, the Appellants allege that the Best Estimates Statement
was false and misleading because Appellees represented that the
Adjusted Projections were their best available estimates despite
knowing they were stale.
The Appellants, however, fail to plead falsity, Judge Greenaway
holds. As stated previously, the Proxy made clear that Keryx
disclaimed that its financial projections showed anything other
than Keryx's views at the time they were prepared. The Best
Estimates Statement, then, represents only that, when Keryx
provided these projections to MTS, MTS assumed that they reflected
the best currently available estimates and judgments of Keryx
management.
Because the Appellants do not allege that MTS did not make this
assumption, their claims concerning the Best Estimates Statement
also fail, Judge Greenaway adds.
Fairness Statements
The Appellants allege the Fairness Statements were false because
the Appellees knew the merger was not fair. In support of this
position, the Appellants rely on various allegations concerning
Keryx's share price, Keryx's instructions that MTS use the Adjusted
Projections, MTS's analyses, and Keryx employees' incentives for
closing the transaction.
However, Judge Greenaway finds that the Appellants' claim fails
because it is not plausibly alleged. As the Appellees argue,
Appellants' claim relies on facts that were specifically disclosed
in the Proxy. The Proxy also contains several other positive
considerations that the Appellees weighed in making its Fairness
Statements. Without more, the Court of Appeals cannot conclude that
the Appellants sufficiently pleaded facts that support the
inference that the Appellees genuinely disbelieved the Fairness
Statements.
For these reasons, Judge Greenaway holds that the Appellants have
failed to allege a violation of Section 14(a). Accordingly, the
Appellants' control-liability claims against the individual
Appellees also fail.
A full-text copy of the Court's Opinion dated July 21, 2022, is
available at https://tinyurl.com/ycy532nc from Leagle.com.
KITCHEN DESIGNS: Hwang Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Kitchen Designs by
Ken Kelly, Inc. The case is styled as Jenny Hwang, on behalf of
herself and all others similarly situated v. Kitchen Designs by Ken
Kelly, Inc., Case No. 1:22-cv-04442 (S.D.N.Y., July 28, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Kitchen Designs by Ken Kelly -- https://www.kitchendesigns.com/ --
is the largest Long Island, New York luxury kitchens and baths
design firm offering premium custom cabinetry and expert home
interior design.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
KONINKLIJKE PHILIPS: Whitescarver Suit Transferred to W.D. Pa.
--------------------------------------------------------------
The case styled as James E. Whitescarver, on behalf of himself and
all others similarly situated v. Koninklijke Philips N.V., Philips
North America LLC, Philips R.S. North America, LLC., Philips
Holding USA Incorporated, Philips Rs North America Holding
Corporation, Wm. T. Burnett & Company, Wm. T. Burnett Holding LLC,
Wm. T. Burnett & Company Incorporated, WM. T. Burnett Fiber LLC,
WM. T. Burnett IP LLC, Case No. 2:22-cv-01069, was transferred from
the U.S. District Court for the District of Arizona, to the U.S.
District Court for the Western District of Pennsylvania on July 27,
2022.
The District Court Clerk assigned Case No. 2:22-cv-01089-JFC to the
proceeding.
The nature of suit is stated as Contract Product Liability.
Koninklijke Philips N.V. -- https://www.philips.com/global -- is a
Dutch multinational conglomerate corporation that was founded in
Eindhoven in 1891.[BN]
The Plaintiff is represented by:
Gregory E Good, Esq.
GOOD LAW PC
3430 E Sunrise Dr., Ste. 270
Tucson, AZ 85718
Phone: (520) 628-8221
Fax: (520) 547-0394
Email: good@goodlaw.net
- and -
Andrea Barient, Esq.
24110 EDEN ST
Plaquemine, LA 70765
Phone: (225) 975-0150
Email: abarient@pbclawfirm.com
- and -
John M. Deakle, Esq.
Richard J. Lajaunie, Esq.
Ronald V. Johnson, Esq.
Russell L. Johnson, Esq.
DEAKLE-JOHNSON LAW FIRM, PLLC
P.O. Box 2072
Hattiesburg, MS 39403
Phone: (601) 544-0631
Fax: (601) 544-0699
- and -
Patrick W Pendley, Esq.
24110 Eden ST
Po Drawer 71
Plaquemine, LA 70764
Phone: (225) 687-6396
Fax: (225) 687-6398
Email: pwpendley@pbclawfirm.com
LA-Z-BOY INC: Evers Suit Remanded to San Diego County Super. Court
------------------------------------------------------------------
Judge Linda Lopez of the U.S. District Court for the Southern
District of California remands the case, DUSTIN EVERS, as an
individual and on behalf of all others similarly situated,
Plaintiff v. LA-Z-BOY INCORPORATED, a Michigan corporation; LZB
RETAIL, INC., a Michigan corporation; and DOES 1 through 50,
inclusive, Defendants, Case No. 21cv2100-LL-BLM (S.D. Cal.), back
to the Superior Court of the State of California for the County of
San Diego.
On Nov. 12, 2021, the Plaintiff filed a putative class action in
the San Diego County Superior Court against Defendants La-Z-Boy and
LZB. In the Complaint, he sought to certify one putative class and
seven different subclasses of the Defendants' current and former
employees. He alleged nine separate causes of action against them
for: (1) failure to pay all minimum wages; (2) failure to pay all
overtime wages; (3) meal period violations; (4) rest period
violation; (5) untimely payment of wages; (6) wage statement
violations; (7) waiting time penalties; (8) failure to reimburse
business expenses; and (9) violations of California's Unfair
Competition Law.
On Dec. 17, 2021, the Defendants removed the action to federal
court. Their Notice of Removal ("NOR") stated that they were
removing the case pursuant to 28 U.S.C. Section 1441, the Class
Action Fairness Act of 2005, 28 U.S.C. Section 1332(d)(2), and 28
U.S.C. Section 1446. They assert that the case satisfied CAFA's
jurisdictional requirements because the: "(1) proposed class
contains more than 100 members; (2) they are not a state, state
official, or other governmental entity; (3) the total amount in
controversy for all class members exceeds $5 million; and (4) there
is diversity of citizenship between at least one class member and
at least one of the Defendants."
On Jan. 18, 2022, the Plaintiff filed the instant Motion to Remand.
On Feb. 8, 2022, the Defendants filed their Opposition to the
Plaintiff's Motion. On Feb. 15, 2022, the Plaintiff filed his Reply
in support of his Motion.
On Feb. 22, 2022, the Defendants filed an ex parte application for
an Order (1) Construing Defendants' Opposition to Motion to Remand
as an Amendment to Notice of Removal or Granting Leave to File an
Amended Notice; and (2) Striking and/or Disregarding Plaintiff's
Arguments Raised for the First Time on Reply; and/or (3) Granting
Defendants Leave to File a Sur-Reply. On Feb. 24, 2022, the
Plaintiff filed an opposition to the Defendants' ex parte
application.
Further, on March 18, 2022, the Defendants filed a Notice of New
Precedential Authority in support of their Opposition to the
Motion. The Plaintiff filed an opposition on the same day.
At issue in the Motion is whether the Court has removal
jurisdiction pursuant to CAFA. The parties do not dispute that
minimal diversity exists. The Plaintiff challenges the Defendants'
showing of CAFA's $5 million amount in controversy requirement. In
the Defendants' NOR, they allege that the total amount in
controversy is $5,122,868.84. In their Opposition, they say that
even with much lower assumed violation rates, the CAFA amount in
controversy is still $5,021,668.78. The Defendants subsequently
filed an ex parte application for an order construing their
Opposition as a timely amendment to their NOR because they claim
the removal period was never triggered.
The Plaintiff argues, however, that the Defendants' Opposition
amending their amounts in controversy was untimely. He also
disputes each category of calculations underlying these alleged
amounts in controversy.
Judge Lopez evaluates each category in turn, but first confronts
the Defendants' ex parte application regarding the timeliness of
their amendment of their NOR.
The Defendants' total amount in controversy in their Opposition,
$5,021,669.78, is different than the figure they initially offered
as the amount in controversy in their NOR of $5,122,868.84. The
Plaintiff does not oppose the lower figure, but opposes the "new
damage models" used in coming to this figure. In opposition to the
Defendants' amendments, he contends their NOR "deliberately omitted
substantive allegations, assumptions, calculations, and estimates,
that were then added in the Opposition." Ultimately, he argues
their NOR is effectively a "sur-reply" and an untimely attempt to
amend it.
Judge Lopez finds that (i) the amount in controversy for unpaid
overtime wages is $91,884.37; (ii) the Defendants' calculation of
the amount in controversy for liquidated damages of $222,592.99 is
reasonable; (iii) the Defendants have sufficiently placed $311,880
in controversy for their claim regarding facial meal break
violations; (iv) the amount in controversy for latent meal break
violations is $142,814; (v) the amount in controversy for untimely
wage payment violations is $576,208.40; (vi) she adopts the
Defendants' estimate, resulting in an amount-in-controversy for
wage statement violations of $201,650 for the 171 employees'
initial wage statements and 1,931 subsequent wage statements at
issue; (vii) the amount in controversy for waiting time penalties
is $513,894.24; (viii) the amount in controversy for business
expense reimbursements is $44,562.40; and (ix) the attorneys' fees
is $745,017.67.
Adding together the amounts-in-controversy calculated produces a
total amount in controversy of $3,725,088.34. The Defendants have
not shown by the preponderance of the evidence that the amount in
controversy is $5 million, and accordingly, Judge Lopez does not
possess subject matter jurisdiction under CAFA over this matter.
As an additional matter, the parties dispute whether it is proper
for the Court to consider traditional diversity jurisdiction as a
basis for removal of the case. In their Opposition, the Defendants
argue that removal jurisdiction also exists under traditional
diversity jurisdiction because the amount in controversy for the
Plaintiff's individual claims is greater than $75,000 based on the
inclusion of attorneys' fees. They argue that in response to a
remand motion, Defendants may proffer evidence establishing
traditional diversity jurisdiction not contained in their NOR. The
Plaintiff contends that the Court cannot consider traditional
diversity jurisdiction because it is a new basis and the Defendants
did not remove on traditional diversity grounds.
Judge Lopez the Defendants' estimates for each claim except the
values for latent meal break violations, second rest break
violations, waiting time penalties, business expense
reimbursements, and attorneys' fees. Thus, in adding together the
amounts in controversy incorporating the Court's adopted estimates,
to the amounts in controversy for these claims, the total amount in
controversy is $21,494.92, which is lower than the $75,000
traditional diversity jurisdictional minimum.
For these reasons, Judge Lopez concludes that the Court does not
possess subject matter jurisdiction based in CAFA or traditional
diversity jurisdiction in the case. Accordingly, she (i) grants
Plaintiff Evers' Motion to Remand; (ii) grants in part the
Defendants' Ex Parte Motion for an Order Construing Defendants'
Opposition to Motion to Remand as an Amendment to Notice of Removal
or Granting Leave to File an Amended Notice; (iii) denies in part
the Defendants' Ex Parte Motion for an Order Striking and/or
Disregarding Plaintiff's Arguments Raised for the First Time on
Reply; and (iv) denies in part as moot the Defendants' Ex Parte
Motion for an Order Granting Defendants Leave to File a Sur-Reply.
A full-text copy of the Court's July 27, 2022 Order is available at
https://tinyurl.com/4x8aprm4 from Leagle.com.
LABOR RESOURCE: Farias Files Suit in Cal. Super. Ct.
----------------------------------------------------
A class action lawsuit has been filed against Labor Resource Group,
Inc., et al. The case is styled as Jaime Farias, and on behalf of
all others similarly situated v. Labor Resource Group, Inc., CEMCO,
Inc., Does 1–10, Case No. 34-2022-00324254-CU-OE-GDS (Cal. Super.
Ct., Sacramento Cty., July 26, 2022).
The case type is stated as "Other Employment - Unlimited Civil."
Labor Resource Group, Inc. -- https://www.lrg-labor.com/ -- is a
human resource consulting in Folsom, California.[BN]
The Plaintiff is represented by:
Justin F. Marquez, Esq.
WILSHIRE LAW FIRM, PLC
3055 Wilshire Blvd., Ste. 510
Los Angeles, CA 90010-1145
Phone: 213-381-9988
Fax: 213-381-9989
Email: justin@wilshirelawfirm.com
LABORATORY CORPORATION: Baldwin Files Suit in Fla. Cir. Ct.
-----------------------------------------------------------
A class action lawsuit has been filed against Laboratory
Corporation of America, et al. The case is styled as Robert
Baldwin, individually and on behalf of all others similarly
situated v. Laboratory Corporation of America, Case No.
2022-11189-CIDL (Fla. Cir. Ct., Volusia Cty., July 26, 2022).
The case type is stated as "Other Civil - Circuit."
Laboratory Corporation of America Holdings, more commonly known as
Labcorp -- https://www.labcorp.com/ -- operates one of the largest
clinical laboratory networks in the world.[BN]
The Plaintiff is represented by:
Brian P. Parker, Esq.
THE LAW OFFICES OF BRIAN P. PARKER, P.C.
4301 Orchard Lake Rd 180-208
West Bloomfield, MI 48323-1604
Office: 248-342-9583
Cell: 248-342-9583
Fax: 248-659-1733
Email: brianparker@collectionstopper.com
LASERSHIP INC: Nunes Suit Seeks Overtime Pay for Delivery Drivers
-----------------------------------------------------------------
ELBIO NUNES, THEODORE SPIES, and MARQUE HART, individually and on
behalf of those similarly situated v. LASERSHIP, INC., Case No.
1:22-cv-02953-SDG (N.D. Ga., July 26, 2022) is a case brought under
the Fair Labor Standards Act seeking damages for the Defendant's
failure to pay its employees overtime for all hours worked over 40
in a week.
The Plaintiffs and members of the putative Collective are current
and former employees of LaserShip, a "last mile" courier company
that bills itself on its website as providing "Last Mile Delivery
That Creates Competitive Advantage." The source of that competitive
advantage, however, is LaserShip's exploitation of its employees,
evasion of payroll taxes, and widespread violations of the wage and
hour laws, says the suit.
LaserShip contracts with online retailers like Amazon.com to
deliver goods to consumers at commercial and residential addresses,
and it fundamentally relies on the work of delivery drivers like
Plaintiffs and members of the putative Collective to carry out the
crux of its business model. Though LaserShip refers to its drivers
as "independent contractors" and pays them accordingly, they are,
in fact, employees subject to an extremely high degree of control
and supervision by LaserShip.
LaserShip obtains these drivers by hiring them directly and by
contracting with subcontractor companies who, alongside LaserShip,
jointly employ the drivers. These subcontractors function as
interchangeable strawmen to insulate LaserShip from liability for
its wage and hour violations. Many of them are delivery drivers
themselves, the suit added.
The Plaintiffs file this lawsuit individually and as an FLSA
collective action on behalf of all similarly situated current and
former employees of Defendant in the State of Georgia.
The Plaintiffs and putative members of the Collective Action seek
all damages available under the FLSA, including back wages,
liquidated damages, legal fees, costs, and post-judgment interest
to the extent that liquidated damages are not awarded.
Over the past several years, LaserShip has owned and operated
warehouses in the in the cities of Kennesaw, Marietta, and Smyrna.
As of this filing, LaserShip operates out of a warehouse located at
6300 Highlands Parkway SE in Smyrna, Georgia, having relocated from
a warehouse in Marietta, Georgia.[BN]
The Plaintiffs are represented by:
Jason Rozger, Esq.
MENKEN S IMPSON & R OZGER LLP
80 Pine St., 33 Fl.
Telephone: (212) 509-1616
Facsimile: (212) 509-8088
E-mail: jrozger@nyemployeelaw.com
- and -
Matthew W. Herrington, Esq.
Charles R. Bridgers, Esq.
DE LONG, CALDWELL, BRIDGERS ,
FITZPATRICK & BENJAMIN, LLC
101 Marietta Street, Suite 2650
Atlanta, GA 30303
Telephone: (404) 979-3150
Facsimile: (404) 979-3170
E-mail: charlesbridgers@dcbflegal.com
matthew.herrington@dcbflegal.com
LAUNDRY DEPOT: Filing of Class Cert. Bid Extended to Sept. 30
-------------------------------------------------------------
In the class action lawsuit captioned as Leong v. Laundry Depot,
LLC, et al., Case No. 2:19-cv-03545 (E.D.N.Y.), the Hon. Judge
Peggy Kuo entered an order on motion for extension of time to
complete discovery as follows:
-- The deadline to file a motion for September 30, 2022
Rule 23 class certification is
extended to:
-- The deadline to file a response November 3, 2022
to the motion is extended to:
-- The deadline to file any reply December 5, 2022
is extended to:
The suit alleges violation of the Fair Labor Standards Act.
Laundry Depot is doing business in personal and household goods
repair and maintenance industry.[CC]
LAZY ONE INC: Zinnamon Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Lazy One, Inc. The
case is styled as Warren Zinnamon, on behalf of himself and all
others similarly situated v. Lazy One, Inc., Case No. 1:22-cv-06463
(S.D.N.Y., July 29, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Lazyone -- https://www.lazyone.com/ -- is a company that creates
entertaining, fashionable sleepwear and bedtime accessories for the
whole family..[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
LEILO INC: Martinez Files ADA Suit in E.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Leilo, Inc. The case
is styled as Pedro Martinez, individually and as the representative
of a class of similarly situated persons v. Leilo, Inc., Case No.
1:22-cv-04439 (E.D.N.Y., July 28, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Leilo -- https://leilo.com/ -- is America's trusted Kava brand that
tastes great and is proven to relax.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
LENG HAONG: Ortiz Suit Removed to E.D. California
-------------------------------------------------
The case styled as Alice Ortiz, individually, and on behalf of all
others similarly situated v. Leng C. Haong, D.D.S., Inc., DOES 1
through 100, inclusive, Case No. CV-22-002756 was removed from the
Stanislaus Superior Court, to the U.S. District Court for the
Eastern District of California on July 28, 2022.
The District Court Clerk assigned Case No. 1:22-at-00576 to the
proceeding.
The nature of suit is stated as Other P.I. for Tort/Non-Motor
Vehicle.
Leng C. Haong is a health care provider primarily located in
Clovis, California.[BN]
The Plaintiff appears pro se.
The Defendants are represented by:
Douglas Allen Smith, Esq.
John Nadolenco, Esq.
MAYER BROWN LLP
350 South Grand Ave., Suite 2500
Los Angeles, CA 90071
Phone: (213) 229-9500
Fax: (213) 625-0248
Email: dougsmith@mayerbrown.com
jnadolenco@mayerbrown.com
LINDA FASHION: Iskhakova Files ADA Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Linda Fashion
Accessories Corp. The case is styled as Marina Iskhakova, on behalf
of herself and all others similarly situated v. Linda Fashion
Accessories Corp., Case No. 1:22-cv-04474 (E.D.N.Y., July 29,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Linda Fashion Accessories -- https://www.lindafashionny.com/ -- is
one of the fastest-growing importer, exporter, manufacturer, and
wholesaler of fashion jewelry, like necklaces, bracelets, earrings,
rings, as well as a leader in fashion hair accessories like
headbands, hair wraps, scrunchies, hair clips, and many more.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
LOT LESS OF FULTON: Iskhakova Files ADA Suit in E.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Lot Less of Fulton
Street, Inc. The case is styled as Marina Iskhakova, on behalf of
herself and all others similarly situated v. Lot Less of Fulton
Street, Inc. doing business as: Lot-Less Closeouts, Case No.
1:22-cv-04476 (E.D.N.Y., July 29, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Lot Less of Fulton Street, Inc. doing business as Lot-Less
Closeouts -- https://lot-less.com/ -- is a retailer offering an
assortment of closeout merchandise, including clothing, cosmetics &
home goods.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
MASONITE CORPORATION: Fails to Properly Pay Workers, Blakley Says
-----------------------------------------------------------------
KENESHIA BLAKLEY, individually and on behalf of all others
similarly situated, Plaintiff v. MASONITE CORPORATION, Defendant,
Case No. 2:22-cv-00105-HSO-RHWR (S.D. Miss., July 27, 2022) is a
class action against the Defendant for unpaid overtime wages in
violation of the Fair Labor Standards Act.
Ms. Blakley has worked for the Defendant as a non-exempt employee
since April 2021.
Masonite Corporation is a manufacturing company based in
Mississippi. [BN]
The Plaintiff is represented by:
Martin R. Jelliffe, Esq.
MORGAN & MORGAN, PLLC
4450 Old Canton Rd., Ste. 200
Jackson, MS 39211
Telephone: (601) 503-1676
Facsimile: (601) 503-1625
E-mail: mjelliffe@forthepeople.com
- and –
Kimberly De Arcangelis, Esq.
MORGAN & MORGAN, P.A.
20 N. Orange Ave., 15th Floor
Orlando, FL 32801
Telephone: (407) 420-1414
Facsimile: (407) 245-3383
E-mail: kimd@forthepeople.com
- and –
Matthew S. Parmet, Esq.
PARMET PC
3 Riverway, Ste. 1910
Houston, TX 77056
Telephone: (713) 999-5228
E-mail: matt@parmet.law
MATTHEW WALKER: Counts Seeks FLSA Conditional Certification
-----------------------------------------------------------
In the class action lawsuit captioned as LIBBELL COUNTS, on behalf
of herself and others similarly situated, v. MATTHEW WALKER
COMPREHENSIVE HEALTH CENTER, INC., Case No. 3:22-cv-00023 (M.D.
Tenn.), the Plaintiff asks the Court to enter an order:
1. conditionally certify the action under the Fair Labor
Standards Act ("FLSA");
2. authorizing this case to proceed as a FLSA collective
action for overtime violations on behalf of Plaintiff and
other similarly situated hourly-paid medical assistants;
3. directing the Defendant to immediately provide the
Plaintiff's counsel a computer-readable file containing
the names (last names first), last known physical
addresses, last known email addresses, social security
numbers, dates of employment, and last known telephone
numbers of all putative class members;
4. providing that the Court-approved notice be posted at all
of Defendant's locations where putative class members
work, as well as be mailed and emailed to the putative
class;
5. tolling the statute of limitations for the putative class
as of the date this is fully briefed; and
6. requiring that the Opt-in Plaintiffs' Consent to Join
Forms be deemed "filed" on the date they are postmarked.
A copy of the Plaintiff's motion dated Aug. 1, 2022 is available
from PacerMonitor.com at https://bit.ly/3Q6EWFT at no extra
charge.[CC]
The Plaintiff is represented by:
J. Russ Bryant, Esq.
Robert E. Morelli, III, Esq.
Robert E. Turner, IV, Esq.
JACKSON SHIELDS YEISER HOLT
OWEN & BRYANT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 754.8524
E-mail: rbryant@jsyc.com
rmorelli@jsyc.com
rturner@jsyc.com
The Defendant is represented by:
C. Eric Stevens, Esq.
Kaya Grace Porter, Esq.
LITTLER MENDELSON, P.C.
333 Commerce Street, Suite 1450
Nashville, TN 37201
Telephone: (615) 383-3033
Facsimile: (615) 383-3323
E-mail: estevens@littler.com
kporter@littler.com
MEDICAL SOLUTION: Dittman's Class and FLSA Collective Decertified
-----------------------------------------------------------------
Senior District Judge Morrison C. England, Jr., of the U.S.
District Court for the Eastern District of California grants in
part the Defendant's Motion to Decertify the Rule 23 Class and FLSA
Collective and Strike Plaintiff's PAGA Claim in the lawsuit styled
BRYON DITTMAN, Plaintiff v. MEDICAL SOLUTION, L.L.C., Defendant,
Case No. 2:17-cv-01851-MCE-CKD (E.D. Cal.).
In October 2018, the Court issued an order certifying a
California-wide class of individuals pursuant to Rule 23 of the
Federal Rules of Civil Procedure and conditionally certifying a
nationwide collective action pursuant to the Fair Labor Standards
Act ("FLSA"). The Rule 23 class was defined as follows:
All non-exempt hourly healthcare professionals employed by
Medical Solutions who, at any time from September 7, 2013
through the date of certification, worked in California
pursuant to a Travel Assignment Agreement during which they
received housing and/or meal and incidental benefits,
received overtime pay, and had the value of their housing
and/or meals and incidental benefits excluded from their
regular rate for purposes of calculating overtime pay.
The FLSA collective action similarly consisted of:
All non-exempt hourly healthcare professionals employed by
Medical Solutions in the United States who, at any time
within the three years preceding certification, worked
pursuant to a Travel Assignment Agreement during which they
received housing and/or meal and incidental benefits, worked
in excess of 40 hours in one or more workweeks, and had the
value of their housing and/or meals and incidental benefits
excluded from their regular rate for purposes of calculating
overtime pay.
Since then, new facts have come to light that impact the veracity
of these definitions. Accordingly, the parties have filed
additional motions regarding certification: (1) the Defendant filed
a Motion to Decertify the Rule 23 Class and FLSA Collective Action
and Strike Plaintiff's PAGA Claim; and (2) the Plaintiff filed a
Motion to Amend Certification Order.
According to the Defendant, certification is improper because: (i)
Plaintiff Dittman cannot represent class members, who have signed
arbitration agreements that contain a class action waiver, (ii)
Plaintiff Dittman cannot represent individuals, who were uninjured
because they were paid as much as or more than they would be owed
if the value of the challenged per diems were included in the
regular rate for purposes of calculating overtime, and (iii) the
function test announced by the Ninth Circuit in Clarke v. AMN
Services, LLC, 987 F.3d 848 (9th Cir. 2021) necessitates
individualized inquiries that predominate as to whether each
individual class member's per diem payments must be considered
wages for purposes of calculating overtime or reimbursements of
expenses incurred.
For his part, the Plaintiff seeks modification of the certification
order to: (1) appoint Autumn Cobbs as an additional representative
of the certified Rule 23 class; and (2) modify the certified Rule
23 class and FLSA collective action to exclude any individuals, who
were paid an overtime rate that was equal to or greater than one
and one-half times what their regular rate would have been had the
value of their per diem benefits been included.
The Court concludes that, as the record stands, certification is
not currently proper. It is not clear to the Court that Ms. Cobbs
is an appropriate class representative of employees that entered
arbitration agreements containing class waivers. There is a factual
dispute as to whether her arbitration agreement extends to the
instant litigation. It also remains unclear how many putative class
members actually may have suffered damages under Defendant's
overtime policy.
Finally, the Court is not convinced that any individual, who
entered an arbitration agreement with a class waiver, would be able
to represent anyone in this action because the Defendant would no
doubt move to compel arbitration as to any claims raised by such an
individual.
While that would be enough for the Court to conclude that
certification is improper, Judge England says it is also unclear
from the record whether the statutory certification prerequisites
have been met given the presence of class members who were not
injured by the Defendant's challenged practices. For example, the
Court cannot determine whether individual questions regarding
damages would predominate over common questions or how many
putative class members actually may have suffered the requisite
damages.
At base, the parties appear to agree that some members of the
putative class are bound by arbitration agreements that include
class waivers and that a number of the class members suffered no
damages such that their claims are adverse to those set forth by
the named Plaintiff. As constituted then, the class should not be
certified. Nor has the Court been convinced that the amendments
proffered by the Plaintiff will sufficiently rectify the class
deficiencies.
Accordingly, the Defendant's Motion to Decertify the Rule 23 Class
and FLSA Collective and Strike Plaintiff's PAGA Claim is granted in
part. Both the Rule 23 Class and FLSA Collective Action are
decertified without prejudice to the Plaintiff filing a renewed
certification motion addressing in detail the prerequisites set
forth in Rule 23 and under the FLSA.
The Court declines to strike the Plaintiff's PAGA claim at this
juncture. The Plaintiff's Motion to Amend Certification Order is
denied without prejudice as moot.
A full-text copy of the Court's Order dated July 21, 2022, is
available at https://tinyurl.com/yckmwxxz from Leagle.com.
MMM CONSUMER BRANDS: Eppes Files TCPA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against MMM Consumer Brands,
Inc. The case is styled as Danielle Eppes, individually and on
behalf of all others similarly situated v. MMM Consumer Brands,
Inc. doing business as: Marley Spoon, Case No. 1:22-cv-06341
(S.D.N.Y., July 26, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
MMM Consumer Brands, Inc. doing business as Martha & Marley Spoon
-- https://marleyspoon.com/ -- delivers delicious, 30-minute
recipes with farm-fresh ingredients to the door.[BN]
The Plaintiff is represented by:
Andrew Shamis, Esq.
SHAMIS & GENTILE, PA
14 NE 1st Ave, Ste. 705
Miami, FL 33132
Phone: (305) 479-2299
Fax: (786) 623-0915
Email: ashamis@shamisgentile.com
MOLTON BROWN USA: Luis Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Molton Brown USA LLC.
The case is styled as Kevin Yan Luis, individually and on behalf of
all others similarly situated v. Molton Brown USA LLC, Case No.
1:22-cv-06471 (S.D.N.Y., July 29, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Molton Brown -- https://www.moltonbrown.eu/store/index -- offers an
exquisite world of fragrances of luxury bath, beauty and home
gifts.[BN]
The Plaintiff is represented by:
Noor Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
MONROE BIOMEDICAL: Underpays Clinical Research Staff, Feliz Says
----------------------------------------------------------------
JADDEY FELIZ-CABRERA, individually and on behalf of all others
similarly situated, Plaintiff v. MONROE BIOMEDICAL RESEARCH, LLC,
Defendant, Case No. 3:22-cv-00337 (W.D.N.C., July 27, 2022) is a
class action against the Defendant for its failure to compensate
the Plaintiff and similarly situated workers overtime pay for all
hours worked in excess of 40 hours in a workweek in violation of
the Fair Labor Standards Act.
The Plaintiff was employed by the Defendant as a clinical research
coordinator on or about July 15, 2021.
Monroe Biomedical Research, LLC is an operator of an outpatient
clinical research center based in Monroe, North Carolina. [BN]
The Plaintiff is represented by:
Philip J. Gibbons, Jr., Esq.
Corey M. Stanton, Esq.
GIBBONS LAW GROUP, PLLC
14045 Ballantyne Corporate Place, Ste. 325
Charlotte, NC 28277
Telephone: (704) 612-0038
E-mail: phil@gibbonslg.com
corey@gibbonslg.com
MONTEREY FINANCIAL: Pagkalinawan Files TCPA Suit in D. Hawaii
-------------------------------------------------------------
A class action lawsuit has been filed against Monterey Financial
Services, LLC. The case is styled as Leticia Pagkalinawan, on
behalf of herself and those similarly situated v. Monterey
Financial Services, LLC doing business as: Monterey Collection
Services, Case No. 1:22-cv-00343-JMS-WRP (D. Haw., July 28, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Monterey Financial Services -- https://www.montereyfinancial.com/
-- is a full service receivables management and finance company
that tailors to the specific needs of your business.[BN]
The Plaintiff is represented by:
Justin A. Brackett, Esq.
515 Ward Avenue
Honolulu, HI 96814
Phone: (808) 377-6778
Email: debtdisputetn@gmail.com
NAVY FEDERAL: Hart Suit Transferred to E.D. Virginia
----------------------------------------------------
The case styled as Maria Hart, Tracee Le Flore, individually and on
behalf of all others similarly situated v. Navy Federal Credit
Union, Case No. 2:21-cv-00044 was transferred from the U.S.
District Court for the District of South Carolina, to the U.S.
District Court for the Eastern District of Virginia on July 26,
2022.
The District Court Clerk assigned Case No. 1:22-cv-00844-LO-IDD to
the proceeding.
The nature of suit is stated as Banks and Banking.
Navy Federal Credit Union -- https://www.navyfederal.org/ -- is a
global credit union headquartered in Vienna, Virginia.[BN]
The Plaintiff is represented by:
David M. Wilkerson, Esq.
VAN WINKLE LAW FIRM
P.O. Box 7376
Asheville, NC 28802
Phone: (828) 258-2991
Fax: (828) 257-2767
- and -
Jae K Kim, Esq.
CARLSON LYNCH LLP
117 East Colorado Blvd., Suite 600
Pasadena, CA 92101
Phone: (619) 762-1910
Email: ekim@carlsonlynch.com
- and -
Jonathan M. Streisfeld, Esq.
KOPELOWLTZ OSTROW FERGUSON WELSELBERQ GILBERT
1 W. Las Olas Blvd., Suite 500
Fort Lauderdale, FL 33301
Phone: (954) 525-4100
Fax: (954) 525-4300
The Defendant is represented by:
David Eidson Dukes, Esq.
NELSON MULLINS RILEY AND SCARBOROUGH
1310 Main St., Suite 17
Columbia, SC 29201
Phone: (803) 255-9451
Fax: (803) 256-7500
Email: david.dukes@nelsonmullins.com
- and -
Merritt G. Abney, Esq.
Michael Tucker Cole, Esq.
Olesya Vaskevich Bracey, Esq.
NELSON MULLINS RILEY AND SCARBOROUGH (CH)
151 Meeting Street, Sixth Floor
Charleston, SC 29401
Phone: (843) 534-4110
Fax: (843) 722-8700
Email: mike.cole@nelsonmullins.com
olesya.bracey@nelsonmullins.com
- and -
Meryl Conant Governski, Esq.
Michael J. Gottlieb, Esq.
WILLKIE FARR & GALLAGHER LLP (DC-NA)
1875 K Street NW
Washington, DC 20006
Phone: (202) 303-7442
Fax: (202) 303-2442
Email: mgottlieb@willkie.com
- and -
Nicholas Reddick, Esq.
Simona Agnolucci, Esq.
WILLKIE FARR & GALLAGHER LLP (CA-NA)
One Front Street
Francisco, CA 94111
Phone: (415) 858-7400
Fax: (415) 858-7599
Email: nreddick@willkie.com
NESTLE WATERS: S.D. New York Dismisses Oldrey Consumer Class Suit
-----------------------------------------------------------------
In the case, BRANDY OLDREY, individually and on behalf of all
others similarly situated, Plaintiff v. NESTLE WATERS NORTH
AMERICA, INC., Defendant, Case No. 21 CV 03885 (NSR) (S.D.N.Y.),
Judge Nelson S. Roman of the U.S. District Court for the Southern
District of New York grants the Defendant's motion to dismiss the
Complaint.
Plaintiff Oldrey brings the putative class action against Nestle,
alleging violation of New York's General Business Law Sections 349
and 350, breach of express warranty, breach of the implied warranty
of merchantability, violation of the Magnuson Moss Warranty Act, 15
U.S.C. Sections 2301, et seq., negligent misrepresentation, fraud,
and unjust enrichment.
The Defendant is a multinational bottler of water products, and it
manufactures, markets, and sells a raspberry and lime-flavored
sparkling water under its Poland Springs brand. It markets the
Product as a way to "ditch the sugary sodas." The Product has a
label that states, "With a Twist of Raspberry Lime" and "Taste the
Real" with pictures of raspberries and limes.
The Plaintiff alleges that the Defendant's labeling misleads
consumers as to the relative amount and quantity of raspberry and
lime ingredients. Consumers expect the presence of a non-de minimis
amount of raspberry and lime ingredients based on the labeling, and
consumers prefer foods which get their taste from food ingredients
instead of added flavor as this is perceived as more natural, less
processed and not exposed to additives or solvents. The Product
lacks "an authentic raspberry and lime taste" because it lacks
sufficient amounts of the flavor compounds of these fruits.
The front label also includes a "disclaimer" which states
"NATURALLY FLAVORED SPRING WATER WITH OTHER NATURAL FLAVORS AND
CO2." The Plaintiff alleges that even if consumers examined this
disclaimer after seeing the other representations, they would not
know this meant the Product does not contain a "Twist of Raspberry
Lime."
The Plaintiff purchased the Product on at least one occasion. She
bought the Product because she expected it would provide the
non-negligible amounts of the named fruit ingredients. As a result
of the representations, the Defendant sold more of the Product and
at higher prices, and the Plaintiff bought the product and paid
more than she would have absent the representations.
The Plaintiff initiated the action on May 2, 2021. On Jan. 11,
2022, the Defendant filed a motion to dismiss, and the Plaintiff
filed a brief in opposition. The Defendant also filed a notice of
supplemental authority on April 7, 2022.
The Plaintiff asserts claims against the Defendant for (1)
violations of Sections 349 and 350 of the New York General Business
Law, (2) negligent misrepresentation, (3) breach of express
warranty, (4) breach of implied warranty of merchantability, (5)
violation of the Magnuson Moss Warranty Act, 15 U.S.C. Sections
2301, et seq., (6) fraud, and (7) unjust enrichment.
The Plaintiff first claims that the phrase "With a Twist of
Raspberry Lime" viewed together with the pictures of raspberries
and limes on the Product's front label is misleading because it
implies that the Product contains a non-de minimis amount of
raspberry and lime ingredients, when in fact, it contains only a
trace amount of the same. The Defendant avers that "the law is
clear that even where a product contains no fruit ingredients at
all, use of names and depictions of fruit to indicate flavor is not
misleading to a reasonable consumer."
Judge Roman opines that as the court in Boswell v. Bimbo Bakeries
USA, Inc., held, cases involving food and drink packaging that is
alleged to be false or misleading with respect to the product's
actual ingredients "yield a standard that distinguishes between two
categories of packaging: First, packaging with a prominent label
that is unambiguous and misleading; and second, packaging with a
prominent label that is ambiguous, but the ambiguity is resolved by
reference to the list of ingredients or a Nutrition Facts panel."
The "With a Twist" phrase is ambiguous, as reasonable consumers
could differ on what this phrase means. Therefore, the Product's
labeling should be viewed as a whole.
The Plaintiff next alleges that the Product's side panel which
states, "Taste the Real" and "Real Raspberry Lime flavor" "furthers
the expectation that the Product will contain raspberry and lime
ingredients in non-negligible amounts." The Defendant avers that a
reasonable consumer reading the label as a whole would not believe
"Taste the Real" referred to real fruit ingredients.
Judge Roman agrees. He concludes that the Plaintiff has failed to
sufficiently allege that the Product's label is misleading for
purposes of her claims under GBL Sections 349 and 350. Because he
concludes that the Plaintiff has not plausibly alleged that the
Product's label is misleading to a reasonable consumer, he
dismisses the Plaintiff's claims under GBL Sections 349 and 350 of
the GBL. It is therefore not necessary to reach the Defendant's
argument that these claims are preempted by federal law.
The Defendant argues that the Plaintiff does not plausibly allege
the existence of a special relationship. The Plaintiff responds
that the Defendant "held itself out as having special knowledge and
experience in this area."
Judge Roman holds that Plaintiff's negligent misrepresentation
claim fails. He finds that the Complaint's allegations only
describe a relationship between the Plaintiff and the Defendant
which is that of an ordinary buyer and seller -- which does not
give rise to the kind of special relationship necessary to maintain
a claim for negligent misrepresentation.
Next, the Defendant avers that the Plaintiff has failed to give
timely pre-suit notice of the alleged breach as required by New
York law. Judge Roman agrees and concludes that the Plaintiff's
express warranty claim fails for lack of timely notice. The
Plaintiff alleges only that she "provided or will provide notice to
defendant, its agents, representatives, retailers and their
employees." "That allegation is insufficient to show that the buyer
provided timely notice of the alleged breach -- the statement is
wholly equivocal." Accordingly, he dismisses the Plaintiff's claim
for breach of express warranty.
On the same basis on which he dismisses the Plaintiff's claim for
breach of express warranty, Judge Roman similarly dismisses her
claim for breach of the implied warranty of merchantability. "The
U.C.C.'s notice requirement also applies to claims for breach of
implied warranty."
To state a claim under the MMWA, the Plaintiffs must adequately
plead a cause of action for breach of written or implied warranty
under state law. Hence, as her state law claims for express and
implied warranty fail, the Plaintiff's MMWA claim similarly fails
for the same reasons.
As for the Plaintiffs' claim of fraud under New York law, Judge
Roman concludes that the Plaintiff has failed to allege a material
misrepresentation of fact or omission because a reasonable consumer
would not conclude that the Product's label communicates that the
Product's flavor derives predominantly from raspberries and limes.
Furthermore, the Plaintiff fails to plead facts that show Defendant
acted with fraudulent intent. The Complaint merely contains
conclusory statements that the Defendant's intent "is evinced by
its knowledge of the relevant regulations, as its misleading claims
are carefully worded to avoid the obvious prohibited statements but
still misleading." This is insufficient. Therefore, the Plaintiff's
fraud claim fails.
The Plaintiff has also failed to allege that any gains to the
Defendant would be unjust because she has not plausibly alleged
that a reasonable consumer would be misled or deceived by the
Product's label. Thus, her unjust enrichment claim fails.
Finally, the Plaintiff seeks injunctive relief for the Defendant
"to remove, correct and/or refrain from the challenged practices
and representations, and restitution and disgorgement for members
of the class pursuant to the applicable laws." Because the
underlying claims on which her requested injunctive relief depends
fail, Judge Roman denies the Plaintiff's request for injunctive
relief.
The Clerk of Court is respectfully directed to terminate the motion
at ECF No. 16 and the action, to enter judgment accordingly, and to
close the case.
A full-text copy of the Court's July 27, 2022 Opinion & Order is
available at https://tinyurl.com/3388fh5e from Leagle.com.
NEWREZ: Fisher Suit Removed to D. Massachusetts
-----------------------------------------------
The case styled as Christine Fisher, on behalf of herself and all
others so similarly situated v. Newrez c/o Newrez/PHH Mortgage
Services, Wells Fargo Bank, N.A. Trust, as Trustee for Option One
Mortgage Loan Trust 2006-3, Case No. 2283CV00406 was removed from
the Plymouth Superior Court, to the U.S. District Court for the
District of Massachusetts on July 29, 2022.
The District Court Clerk assigned Case No. 1:22-cv-11222 to the
proceeding.
The nature of suit is stated as Foreclosure Real Property.
Newrez -- https://www.newrez.com/ -- is a leading nationwide
mortgage lender and servicer.[BN]
The Plaintiff appears pro se.
The Defendants are represented by:
Kevin W. Manganaro, Esq.
HINSHAW & CULBERTSON LLP
53 State Street, 27th Floor
Boston, MA 02109
Phone: (516) 241-5521
Email: kmanganaro@hinshawlaw.com
NIELSEN HOLDINGS: $18M in Attys.' Fees Awarded in Securities Suit
-----------------------------------------------------------------
In the lawsuit captioned IN RE NIELSEN HOLDINGS PLC SECURITIES
LITIGATION, Case No. 1:18-cv-07143-JMF (S.D.N.Y.), the U.S.
District Court for the Southern District of New York awarded the
Lead Counsel $18,037,433 in attorneys' fees.
The matter came on for hearing on July 20, 2022, on the Lead
Counsel's motion for an award of attorneys' fees and payment of
expenses, including awards to the Plaintiffs pursuant to the
Private Securities Litigation Reform Act of 1995.
Notice of Lead Counsel's motion for an award of attorneys' fees and
payment of expenses was given to all Settlement Class Members, who
could be identified with reasonable effort, and they were given the
opportunity to object by June 29, 2022.
There have been two objections to the Lead Counsel's request for
attorneys' fees. One was submitted by Mr. Larry Killion. He does
not object to the expense requests. Additionally, the Court
received a letter from Ms. Monica Bohlman, objecting to the
proposed fee award. The Court has considered the arguments raised
by Mr. Killion, as well as his proposed fee schedule, and the
arguments raised by Ms. Bohlman, but for the reasons stated on the
record during the fairness hearing, and under the circumstances of
this case, their objections are overruled.
Hence, District Judge Jesse M. Furman awards the Lead Counsel, on
behalf of the Plaintiffs' Counsel, attorneys' fees in the amount of
$18,037,433, plus interest at the same rate earned by the
Settlement Fund (i.e., 25% of the Settlement Fund, minus litigation
expenses of $850,266.93) and $850,266.93 in payment of litigation
expenses, plus accrued interest, which sums the Court finds to be
fair and reasonable. Lead Counsel will allocate the attorneys' fees
awarded amongst the Plaintiffs' Counsel.
In making this award of attorneys' fees and expenses to be paid
from the Settlement Fund, the Court has considered and found that
the Settlement has created a substantial fund of $73 million in
cash that has been paid into escrow pursuant to the terms of the
Stipulation, and that numerous Settlement Class Members who submit
valid Claim Forms will benefit from the Settlement that occurred
because of the efforts of counsel. It also found, among other
things, that the Plaintiffs' Counsel conducted the litigation and
achieved the Settlement with skill, perseverance, and diligent
advocacy.
The Lead Plaintiff, the Public Employees' Retirement System of
Mississippi, is awarded $17,750 from the Settlement Fund as
reimbursement for its reasonable costs and expenses directly
related to its representation of the Settlement Class, pursuant to
Section 21D(a)(4) of the PSLRA, 15 U.S.C. Section78u-4(a)(4).
Named Plaintiff Monroe County Employees' Retirement System is
awarded $5,625 from the Settlement Fund as reimbursement for its
reasonable costs and expenses directly related to its
representation of the Settlement Class, pursuant to Section
21D(a)(4) of the PSLRA, 15 U.S.C. Section78u-4(a)(4).
Any appeal or any challenge affecting the Court's approval of any
attorneys' fees and expense application, including that of Lead
Counsel, will in no way disturb or affect the finality of the
Judgment, Judge Furman states.
The Court retains exclusive jurisdiction over the Parties and the
Settlement Class Members for all matters relating to this Action,
including the administration, interpretation, effectuation, or
enforcement of the Stipulation and this Order.
In the event that the Settlement is terminated or the Effective
Date of the Settlement otherwise fails to occur, Judge Furman holds
that his Order will be rendered null and void to the extent
provided by the Stipulation.
A full-text copy of the Court's Order dated July 21, 2022, is
available at https://tinyurl.com/3pk772ab from Leagle.com.
NIELSEN HOLDINGS: Court Issues Final Judgment in Securities Suit
----------------------------------------------------------------
Judge Jesse M. Furman of the U.S. District Court for the Southern
District of New York issued a Final Judgment in the lawsuit
captioned IN RE NIELSEN HOLDINGS PLC SECURITIES LITIGATION, Case
No. 1:18-cv-07143-JMF (S.D.N.Y.).
As of March 15, 2022, Lead Plaintiff Public Employees' Retirement
System of Mississippi ("MissPERS") and additionally named Plaintiff
Monroe County Employees' Retirement System, on behalf of themselves
and all other members of the proposed Settlement Class, on the one
hand, and Defendants Nielsen Holdings plc, Dwight Mitchell Barns,
Kelly Abcarian, and Jamere Jackson, on the other, entered into a
Stipulation and Agreement of Settlement in the litigation.
Pursuant to the Proposed Order Granting Preliminary Approval of
Class Action Settlement, entered April 4, 2022, the Court scheduled
a hearing for July 20, 2022, at 4:00 p.m. to, among other things:
(i) determine whether the proposed Settlement of the Action on the
terms and conditions provided for in the Stipulation is fair,
reasonable, and adequate, and should be approved by the Court; (ii)
determine whether a judgment as provided for in the Stipulation
should be entered; and (iii) rule on the Lead Counsel's Fee and
Expense Application;
The Court ordered that the Notice of Pendency and Proposed
Settlement of Class Action and Motion for Attorneys' Fees and
Expenses and a Proof of Claim and Release form be mailed by
first-class mail, postage prepaid, 10 business days after the date
of entry of the Preliminary Approval Order to all potential
Settlement Class Members who could be identified through reasonable
effort, and that the Summary Notice of Pendency and Proposed
Settlement and of Class Action and Motion for Attorneys' Fees and
Expenses be published in The Wall Street Journal and transmitted
over PR Newswire within 14 calendar days of the Notice Date.
Judge Furman notes that the provisions of the Preliminary Approval
Order as to notice were complied with.
On June 15, 2022, the Plaintiffs moved for final approval of the
Settlement, as set forth in the Preliminary Approval Order. The
Settlement Hearing was duly held before the Court on July 20, 2022,
at which time all interested Persons were afforded the opportunity
to be heard.
Accordingly, the Court ordered, adjudged and decreed that this
Judgment incorporates and makes a part hereof: (i) the Stipulation
filed with the Court on March 15, 2022; and (ii) the Notice, which
was filed with the Court on June 15, 2022. Capitalized terms not
defined in this Judgment will have the meaning set forth in the
Stipulation.
The Court affirms its determinations in the Preliminary Approval
Order and finally certifies, for purposes of the Settlement only,
pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil
Procedure, the Settlement Class of:
all persons and entities that purchased or otherwise
acquired Nielsen publicly traded common stock during the
period from February 11, 2016 through July 25, 2018,
inclusive, and were damaged thereby.
Excluded from the Settlement Class are: (i) Defendants;
(ii) members of the immediate family of any Individual
Defendant; (iii) any person who was an officer or director
of Nielsen during the Class Period; (iv) any firm, trust,
corporation, or other entity in which any Defendant has or
had a controlling interest; (v) affiliates of Nielsen,
including its employee retirement and benefit plan(s) and
their participants or beneficiaries, to the extent they made
purchases through such plan(s); and (vi) the legal
representatives, affiliates, heirs, successors-in-interest,
or assigns of any such excluded person. Also excluded from
the Settlement Class are those Persons who or which have
timely and validly sought exclusion from the Settlement
Class and are listed on the annexed Exhibit A as having
submitted an exclusion request allowed by the Court.
Pursuant to Rule 23 and for purposes of the Settlement only, the
Court re-affirms its determinations in the Preliminary Approval
Order and finally certifies Retirement System of Mississippi and
Monroe County Employees' Retirement System as Class Representatives
for the Settlement Class; and finally appoints the law firm of
Labaton Sucharow LLP as Class Counsel for the Settlement Class.
Pursuant to Rule 23(e)(2), the Court approves the Settlement. There
have been no objections to the Settlement.
The Second Amended Complaint for Violations of the Federal
Securities Laws (the "Second Amended Complaint"), filed on Sept.
27, 2019, is dismissed in its entirety, with prejudice, and without
costs to any Party, except as otherwise provided in the
Stipulation.
The administration of the Settlement, and the decision of all
disputed questions of law and fact with respect to the validity of
any claim or right of any Person to participate in the distribution
of the Net Settlement Fund, will remain under the authority of the
Court.
A separate order will be entered regarding Lead Counsel's
application for attorneys' fees and payment of expenses as allowed
by the Court. A separate order will be entered regarding the
proposed Plan of Allocation for the Net Settlement Fund. Such
orders will in no way disturb or affect this Judgment and will be
considered separate from this Judgment. Such orders will in no way
affect or delay the finality of this Judgment and will not affect
or delay the Effective Date of the Settlement.
A full-text copy of the Court's Final Judgment dated July 21, 2022,
is available at https://tinyurl.com/ymxtpc7t from Leagle.com.
NOBLE ENERGY INC: Boulter Files Suit in D. Colorado
---------------------------------------------------
A class action lawsuit has been filed against Noble Energy, Inc.,
et al. The case is styled as Mike Boulter, Boulter, LLC, Barclay
Farms, LLC, on behalf of themselves and classes of similarly
situated persons v. Noble Energy, Inc., Kerr-McGee Oil & Gas
Onshore, LP, Case No. 1:22-cv-01843-DDD (D. Colo., July 26, 2022).
The nature of suit is stated Contract: Recovery/Enforcement for
Breach of Contract.
Noble Energy, Inc. -- http://www.chevron.com/-- was a company
engaged in hydrocarbon exploration headquartered in Houston, Texas
and was acquired by Chevron Corporation in October 2020.[BN]
The Plaintiffs are represented by:
Stacy Ann Burrows, Esq.
BARTON & BURROWS, LLC
5201 Johnson Drive, Suite 110
Mission, KS 66205
Phone: (913) 563-6253
Fax: (913) 563-6259
Email: stacy@bartonburrows.com
OAKLANDISH LLC: Dicks Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Oaklandish, LLC. The
case is styled as Valerie Dicks, on behalf of herself and all
others similarly situated v. Oaklandish, LLC, Case No.
1:22-cv-06447 (S.D.N.Y., July 29, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Oaklandish -- https://www.oaklandish.com/ -- is a fashion line and
retail store located in Oakland, California.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
PARSEC INC: Illinois App. Affirms Dismissal of Soltysik BIPA Suit
-----------------------------------------------------------------
In the lawsuit styled ROBERT SOLTYSIK and VESMO HANKS, Individually
and on Behalf of All Others Similarly Situated,
Plaintiffs-Appellants v. PARSEC, INC., Defendant-Appellee, Case No.
2-20-0563 (Ill. App.), the Appellate Court of Illinois, Second
District, affirms the judgment of the circuit court of Du Page
County dismissing the underlying case.
Plaintiffs Soltysik and Hanks appeal from the dismissal for lack of
subject-matter jurisdiction of their putative class action suit
against Parsec, which brought claims based on the Biometric
Information Privacy Act (740 ILCS 14/1 et seq. (West 2018)). They
assert that (1) the trial court erred in concluding that it lacked
subject-matter jurisdiction, (2) the Defendant waived its right to
compel arbitration per arbitration clauses in the collective
bargaining agreements, and (3) the Defendant "waived" its defense
that section 301 of the Labor Management Relations Act of 1947 (29
U.S.C. Section 185 (2018)) preempted the Plaintiffs' claims. On
appeal, the Plaintiffs do not contest that, waiver aside,
preemption was potentially a complete defense.
On Feb. 4, 2019, Soltysik filed a complaint in the circuit court of
Du Page County, alleging that the Defendant, his former employer,
had violated his rights, and the rights of a putative class of
others similarly situated, under the Privacy Act. The core of
Soltysik's claim was that the Defendant violated the Privacy Act's
protections by requiring its employees to use fingerprint scanners
to clock in and out. The court allowed Soltysik to amend his
complaint to add Hanks. The amended complaint sought damages and an
injunction.
On July 3, 2019, the Defendant filed a motion to dismiss, asserting
that the Plaintiffs' claims (1) were precluded by the Workers'
Compensation Act (820 ILCS 305/1 et seq. (West 2018)) as based on
work-related injuries, (2) were time-barred, and (3) did not
adequately plead damages. The court denied the motion on Oct. 17,
2019.
On Jan. 22, 2020, the Defendant filed, under section 2-619.1 of the
Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2018)), a "Motion
to Dismiss Plaintiffs' Amended Class Action Complaint for Lack of
Subject Matter Jurisdiction or, in the Alternative, Because
Plaintiffs' Claims Are Preempted." It advanced two bases for
dismissal. First, it argued that the trial court "lacked subject
matter jurisdiction to adjudicate the Plaintiffs' claims because
they required interpretation of the relevant CBA and, thus, are
preempted under section 301 of the LMRA." Second, it argued that,
even if the court had subject-matter jurisdiction, it should
dismiss the claims as preempted. The Plaintiffs responded that the
Defendant improperly framed the issue as one of subject-matter
jurisdiction.
The court granted the Defendant's motion to dismiss. Relying on
Miller v. Southwest Airlines Co., 926 F.3d 898 (7th Cir. 2019) and
the unpublished federal district court decisions cited by the
Defendant, it concluded that, because the Plaintiffs' claims
required interpretation of the CBAs, the court lacked
subject-matter jurisdiction.
The Plaintiffs moved for "partial" reconsideration of the
dismissal. In response, the Defendant argued that the issues of
preemption and subject-matter jurisdiction were inseparable. Thus,
by conceding that their claims were preempted, the Plaintiffs
necessarily conceded that the trial court lacked subject-matter
jurisdiction. The court denied the Plaintiffs' motion, ruling that,
under federal case law, "a court lacks subject matter jurisdiction
where a CBA has to be interpreted." The Plaintiffs filed a timely
notice of appeal.
Regarding subject-matter jurisdiction, the Appellate Court opines
that the applicable Supreme Court precedent does not indicate that
a state court loses subject-matter jurisdiction of section 301
claims when arbitration is not exhausted. Indeed, the Supreme
Court's decisions strongly indicate otherwise. State courts are
courts of general jurisdiction, presumed to have concurrent
jurisdiction with the federal courts over issues of federal law.
Thus, the absence of clear precedent suggesting that exhaustion of
arbitration is a prerequisite to state-court jurisdiction is
sufficient to conclude that the trial court here had subject-matter
jurisdiction.
As to preemption and waiver of arbitration, the Appellate Court
also opines that Illinois' law on contract waiver is preempted by
section 301 as it applies to CBAs. Under section 301, the
preemption is such that "substantive principles of federal labor
law must be paramount in the area covered by the statute" so that
"issues raised in suits of a kind covered by Section 301 are to be
decided according to the precepts of federal labor policy."
Further, under section 301, "Congress intended doctrines of federal
labor law uniformly to prevail over inconsistent local rules." To
apply state-law contract-waiver rules to CBAs would negate that
necessary uniformity. The need for uniformity applies with
particular force, given that the encouragement of arbitration is
one of the central "policies of our national labor laws." The
Plaintiffs would have to show that the Defendant waived its right
to arbitration under federal law. They attempt no such showing.
Thus, although the trial erred in dismissing the complaint for want
of subject-matter jurisdiction, the dismissal must be affirmed
because the Defendant properly raised the defense that the Privacy
Act claims were preempted by section 301.
In sum, the Appellate Court concludes that, although the Plaintiffs
are correct that the trial court had subject-matter jurisdiction,
they are incorrect that the Defendant waived either its right to
compel arbitration under the CBAs or its defense of preemption
under section 301. It upholds the dismissal based on the
Plaintiffs' concession of preemption. It therefore affirms.
A full-text copy of the Court's July 27, 2022 Opinion is available
at https://tinyurl.com/jpajs9nc from Leagle.com.
David J. Fish -- dfish@fishlawfirm.com -- and Mara Baltabols, of
Fish Law Firm, P.C., of Naperville, for the Appellants.
Jody Kahn Mason -- Jody.Mason@jacksonlewis.com -- Jason A. Selvey
-- Jason.Selvey@jacksonlewis.com -- and Jonathan B. Cifonelli, of
Jackson Lewis P.C., of Chicago, for the Appellee.
PLYMOUTH ROCK: Gomes Sues Over Denied Collision Coverage Claims
---------------------------------------------------------------
ANA E. GOMES, on behalf of herself and all others similarly
situated, Plaintiff v. PLYMOUTH ROCK ASSURANCE CORPORATION,
Defendant, Case No. 22-1699 (Mass. Commw. Ct., July 27, 2022) is a
class action against the Defendant for breach of contract and
violation of Massachusetts General Law.
According to the complaint, the Defendant breached the terms of its
insurance policy with regard to Limited Collision Coverage (LCC) by
refusing to pay the Plaintiff's claim following a vehicle accident.
The Defendant denied liability on the Plaintiff's LCC claim based
on its position that the Plaintiff was more than 50 percent at
fault. Despite the decision of the board of appeals on motor
vehicle policies and bonds to vacate the at-fault premium surcharge
filed by the Defendant, it still refused to pay the pending LCC
claim. As a result of the Defendant's misconduct, the Plaintiff was
denied reimbursement for repair costs exceeding her deductible,
says the suit.
Plymouth Rock Assurance Corporation is an insurance firm doing
business in Massachusetts. [BN]
The Plaintiff is represented by:
Steven W. Kasten, Esq.
LOONEY COHEN & AISENBERG LLP
33 Broad Street, 5th Floor
Boston, MA 02109
Telephone: (617) 371-1050
E-mail: skasten@lca-llp.com
- and –
James E. Neyman, Esq.
JAMES E. NEYMAN & ASSOCIATES, PC
76 Canal Street, 3rd Fl.
Boston, MA 02114
Telephone: (617) 723-2627
E-mail: james@neymanandassociates.com
PRACTICEMAX INCORPORATED: Medina Files Suit in D. Arizona
---------------------------------------------------------
A class action lawsuit has been filed against PracticeMax
Incorporated. The case is styled as Flor Medina, Doreen Barbieri,
on behalf of themselves and others similarly situated v.
PracticeMax Incorporated, Case No. 2:22-cv-01261-DLR (D. Ariz.,
July 27, 2022).
The nature of suit is stated as Other Fraud.
PracticeMax -- https://practicemax.com/ -- has over 45 years of
experience providing business management and information technology
solutions to a diverse mix of health care providers.[BN]
The Plaintiffs are represented by:
Colleen M Auer, Esq.
Elaine Ryan, Esq.
AUER RYAN PLLC
20987 N John Wayne Pkwy., Ste. B104-374
Maricopa, AZ 85139
Phone: (520) 705-7332
Fax: (602) 560-0256
Email: cauer@auer-ryan.com
eryan@auer-ryan.com
PROCTER & GAMBLE: Aerosol Products Unsafe to Use, Kendall Claims
----------------------------------------------------------------
DONNEL COREY KENDALL; MARALE KURKEYERIAN; A.F. and N.F., minors
through their guardian ad litem MARALE KURKEYERIAN; JOSE FIGUEROA;
HAIDEH DANESHNIA; ASSAL MIRZA MOHAMMADI; and NASRIN KHODADADIAN,
individually and on behalf of all others similarly situated,
Plaintiffs v. THE PROCTER & GAMBLE COMPANY, Defendant, Case No.
2:22-cv-05160 (C.D. Cal., July 26, 2022) is a class action against
the Defendant for strict products liability, breach of express
warranty, breach of implied warranty, fraudulent concealment,
negligent misrepresentation, unjust enrichment, and violations of
California's Business & Professions Code and California Consumer
Legal Remedies Act.
According to the complaint, the Defendant is engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
aerosol antiperspirant sprays and aerosol dry shampoo sprays. The
Defendant failed to disclose the presence of benzene, a known human
carcinogen, on its products. The Plaintiffs would not have
purchased these aerosol products, at times paying premium prices,
nor would have used and applied them to their bodies had they known
that these products were unsafe and contained significant amounts
of benzene, says the suit.
The Procter & Gamble Company is a manufacturer of personal care
products, headquartered in Cincinnati, Ohio. [BN]
The Plaintiffs are represented by:
Azar Mouzari, Esq.
Nilofar Nouri, Esq.
BEVERLY HILLS TRIAL ATTORNEYS, P.C.
468 N. Camden Drive, Suite 238
Beverly Hills, CA 90210
Telephone: (310) 858-5567
Facsimile: (424) 286-0963
E-mail: azar@bhtrialattorneys.com
nilofar@bhtrialattorneys.com
PROFESSIONAL FINANCE: Skrabo Files Suit in D. Colorado
------------------------------------------------------
A class action lawsuit has been filed against Professional Finance
Company, Inc. The case is styled as Marko Skrabo, individually and
on behalf of all others similarly situated v. Professional Finance
Company, Inc., Case No. 1:22-cv-01855-KLM (D. Colo., July 27,
2022).
The nature of suit is stated as Other P.I. for Personal Injury.
Professional Finance Company (PFC) -- https://www.pfcusa.com/ -- is
one of the nation's leading accounts receivable management
agencies.[BN]
The Plaintiff is represented by:
Raina C. Borrelli, Esq.
TURKE & STRAUSS LLP
613 Williamson Street, Suite 201
Madison, WI 53703
Phone: (608) 237-1775
Fax: (608) 509-4423
Email: raina@turkestrauss.com
- and -
Gary Michael Klinger, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
227 West Monroe Street, Suite 2100
Chicago, IL 60606
Phone: (847) 208-4585
Email: gklinger@milberg.com
PROLOGIS INC: Bushansky Enjoins Stockholder Vote in Securities Suit
-------------------------------------------------------------------
STEPHEN BUSHANSKY v. PROLOGIS, INC., HAMID R. MOGHADAM, IRVING F.
LYONS, III, CRISTINA G. BITA, GEORGE L. FOTIADES, LYDIA H. KENNARD,
AVID MODJTABAI, DAVID P. O'CONNOR, OLIVIER PIANI, JEFFREY L.
SKELTON, CARL B. WEBB, and WILLIAM D. ZOLLARS, Case No.
3:22-cv-04320 (N.D. Cal., July 26, 2022) is a class action action
brought by the Plaintiff against Prologis and the members of
Prologis' Board of Directors for their violations of the Securities
Exchange Act of 1934, and seeks to enjoin the vote on a proposed
transaction, pursuant to which Prologis will acquire Duke Realty
Corporation through Prologis' subsidiaries Compton Merger Sub LLC
and Compton Merger Sub OP LLC.
On June 13, 2022, Prologis and Duke issued a joint press release
announcing entry into an Agreement and Plan of Merger, dated June
11, 2022, to sell Duke to Prologis. Under the terms of the Merger
Agreement, each Duke stockholder will receive 0.475 of a newly
issued share of Prologis common stock for each share of Duke common
stock owned. The Proposed Transaction is valued at approximately
$26 billion.
On July 18, 2022, Prologis filed a Form S-4 Registration Statement
with the SEC. The Registration Statement recommends that Prologis
stockholders vote in favor of the Proposed Transaction, but omits
or misrepresents material information concerning, among other
things:
-- the Company's financial projections;
-- the data and inputs underlying the financial valuation
analysesthat support the fairness opinion provided by the
Company's financial advisor Goldman Sachs & Co. LLC; and
-- the potential conflicts of interest of the Company's other
financial advisor, Citigroup Global Markets'.
The Defendants authorized the issuance of the false and misleading
Registration Statement in violation of Sections 14(a) and 26 20(a)
of the Exchange Act, says the suit.
In short, unless remedied, Prologis' public stockholders will be
irreparably harmed by the Registration Statement's material
misrepresentations and omissions, which prevent them from making a
sufficiently informed voting decision the Proposed Transaction, the
violation of which renders money damages inadequate. Plaintiff
seeks to enjoin the stockholder vote on the Proposed Transaction
unless and until such Exchange Act violations are cured, the suit
added.
The Plaintiff is, and has been at all times relevant hereto, a
continuous stockholder of Prologis.
Prologis was formed in 1997 and is a global leader in logistics
real estate with a focus on high growth markets. Prologis owns,
manages, and develops well-located, high-quality logistics
facilities in 19 countries across four continents. Prologis' teams
actively manage its portfolio to provide comprehensive real estate
services, including leasing, property management, development,
acquisitions, and dispositions. The Individual Defendants are
directors and officers of the company.
Duke is a self-administered and self-managed REIT, which owns and
operates approximately 164.9 million rentable square feet of
industrial assets in 19 major U.S. logistics markets.
Prologis OP Merger Sub is a Delaware limited liability company and
a wholly owned subsidiary of the OP.[BN]
The Plaintiff is represented by:
Joel E. Elkins, Esq.
Michael Rogovin, Esq.
WEISS LAW
611 Wilshire Blvd., Suite 808
Los Angeles, CA 90017
Telephone: (310) 208-2800
Facsimile: (310) 209-2348
E-mail: jelkins@weisslawllp.com
QUANTUMSCAPE: Fish, et al., Seek to Certify Rule 23 Class
---------------------------------------------------------
In the class action lawsuit captioned as In re QuantumScape
Securities Class Action Litigation, Case No. 3:21-cv-00058-WHO
(N.D. Cal.), the Lead Plaintiff Frank Fish and named Plaintiffs
Mary Cranny and Kathy Stark move the Court to:
1. certify the Class and appoint them as Class
Representatives pursuant to Fed. R. Civ. P. 23(a) and
23(b)(3);
"All persons or entities that purchased or otherwise
acquired QuantumScape securities between November 27, 2020
and April 14, 2021, inclusive, and were damaged thereby;"
Excluded from the Class are QuantumScape and its
subsidiaries and affiliates, the Individual Defendants,
and any of the Defendants' or QuantumScape's respective
officers and directors at all relevant times, and any of
their immediate families, legal representatives, heirs,
successors, or assigns, and any entity in which any
Defendants has or had a controlling interest;" and
2. appoint Court-appointed lead counsel Levi & Korsinsky, LLP
as Class Counsel pursuant to Fed. R. Civ. P. 23(g).
The Court held that Lead Plaintiff sufficiently alleged securities
fraud claims under Section 10(b) 2 and 20(a) of the Securities
Exchange Act of 1934, based on the Defendants' actionably false and
misleading statements. Like most securities-fraud actions, this one
is ideally suited for class treatment because it arises from common
misrepresentations that harmed hundreds or thousands of investors
in QuantumScape's securities in a like manner.
This case arises from the Defendants' false and misleading Class
Period statements concerning the efficacy, safety, cost, commercial
prospects, and capabilities of QuantumScape's solid-state battery
prototype.
The Defendants claim QuantumScape's batteries, when developed,
would be denser and more compact than traditional lithium-ion
batteries, while also being safer from complications such as fires.
However, since the 1800s, no one has been able to create a
functional solid-state battery at scale due to the formation of
dendrites and rapid impedance growth from a chemical side-reaction
between the liquid electrolyte and the lithium metal. Dendrites, a
needle-like metallic growth of deposits of lithium metal, quickly
grow out of control and short the battery causing it to fail. In
addition to solving these technical issues, a solid-state battery
would have to match, or exceed, the current performance of the
widely-accepted lithium-ion batteries to achieve commercial
success.
This Action was filed on January 5, 2021. On April 20, 2021, the
Court appointed Frank Fish as Lead Plaintiff and Levi & Korsinsky
as lead counsel. Lead Plaintiff filed his first amended complaint
on June 21, 2021.
On August 20, 2021, the Defendants moved to dismiss, which Lead
Plaintiff opposed on October 19, 2021.
On January 14, 2022, the Court denied Defendant's motion to
dismiss, except as to a single alleged misstatement. Thereafter,
the parties commenced discovery. Lead Plaintiff, through lead
counsel, zealously pursued his claims by serving and responding to
requests for production and interrogatories, meeting and conferring
with Defendants regarding same, serving subpoenas for documents on
30 third parties, retaining Dr. Cain, and preparing this motion for
class certification.
Further, Lead Plaintiff filed a stipulation to amend the complaint
to add Stark and Cranny as named plaintiffs on July 11, 2022. On
July 14, 2022, pursuant to the Court's order entering the
stipulation, the Plaintiffs filed the SAC.
Lead Plaintiff is the founder and senior property manager of a real
estate firm that has been in business for 40 years. Mr. Fish is a
sophisticated investor with over 35 years of investing experience.
Mr. Fish makes all of his investment decisions, including
purchasing 43,000 shares of QuantumScape stock during the Class
Period.
QuantumScape is a pre-revenue company founded in 2010 purportedly
developing the "next generation” of solid-state lithium metal
batteries for use in electric vehicles. The Individual Defendants
served as QuantumScape's Chief Executive Officer (Singh), Chief
Financial Officer (Hettrich), and Chief Technology Officer (Holme).
A copy of the Plaintiffs' motion dated July 29, 2022 is available
from PacerMonitor.com at https://bit.ly/3byPv5E at no extra
charge.[CC]
The Plaintiffs are represented by:
Adam M. Apton, Esq.
Adam C. McCall, Esq.
Nicholas Ian Porritt, Esq.
Shannon L. Hopkins, Esq.
Gregory M. Potrepka, Esq.
Michael J. Keating, Esq.
LEVI & KORSINSKY, LLP
75 Broadway, Suite 202
San Francisco, CA 94111
Telephone: (415) 373-1671
E-mail: aapton@zlk.com
amccall@zlk.com
nporritt@zlk.com
shopkins@zlk.com
gpotrepka@zlk.com
mkeating@zlk.com
RECKITT BENCKISER: Court Certifies Classes in Prescott Suit
-----------------------------------------------------------
In the class action lawsuit captioned as STEVEN ROBERT PRESCOTT, et
al., v. RECKITT BENCKISER LLC, Case No. 5:20-cv-02101-BLF (N.D.
Cal.), the Hon. Judge Beth Labson Freeman entered an order:
1. granting the Plaintiffs' motion for class certification;
2. certifying the following Classes, pursuant to Federal Rule
of Civil Procedure 23:
(a) California Class
"All residents of California who purchased Woolite
laundry detergent with a label bearing the phrases
"Color Renew" and/or "revives colors" from February 1,
2017 to the present."
(b) New York Class
"All residents of New York who purchased Woolite
laundry detergent with a label bearing the phrases
"Color Renew" and/or "revives colors" from February 22,
2018 to the present."
(c) Massachusetts Class
"All residents of Massachusetts who purchased Woolite
laundry detergent with a label bearing the phrases
"Color Renew" and/or "revives colors" from February 22,
2017 to the present.
Excluded from the Classes are the Defendant, any entity
in which Defendant has a controlling interest, and the
Defendant's officers, directors, legal representatives,
successors, subsidiaries, and assigns. Also excluded
are any judge, justice, or judicial officer presiding
over this matter and the members of their immediate
families and judicial staff; and
3. appointing Steven Prescott, Donovan Marshall, and
Treahanna Clemmons as class representatives for the
California Class; Maria Christine Anello as class
representative for the New York Class; Darlene Kittredge
and Susan Graciale as class representatives for the
Massachusetts Class; and Eric Kafka of Cohen Milstein
Sellers & Toll as class counsel for the Classes;
The Court said, "The Plaintiffs assert that class members'
interests in bringing separate actions is minimal, as any recovery
under such an action would be dwarfed by the cost of litigation.
The Plaintiffs state that there are no other relevant cases
pending. The Defendant consented to Plaintiffs' addition of state
law 14 claims from other jurisdiction -- New York and Massachusetts
-- to this suit. Finally, the issues presented by this action are
manageable given the defined class and the existence of common
proof regarding central issues. Reckitt does not offer any argument
regarding these factors and the Court finds Plaintiffs' arguments
to be persuasive. The Court finds that the superiority requirement
of Rule 23(b)(3) is satisfied."
The Plaintiffs bring this putative class action against Reckitt on
behalf of consumers who purchased Woolite laundry detergent labeled
with the phrases "COLOR RENEW" and/or "revives colors". The
Plaintiffs assert that the color renew/revive representation was
false or misleading, because Woolite laundry detergent does not
renew or revive color in clothing. They assert consumer claims on
behalf of the residents of three states, California, New York, and
Massachusetts.
In 2017, Reckitt launched a new marketing campaign for its Woolite
brand laundry detergents. Reckitt changed the
formula of its Woolite Gentle Cycle detergent and Woolite Darks
detergent, and it began marketing those products by representing
that the reformulated detergent would "renew" and "revive" color in
clothing.
On 100% of those detergent bottles, the back label displayed the
phrase "revives colors" as part of a prominent graphic showing that
the reformulated detergent "smooths rough fibers" and "removes
pilling and fuzz" with the end result that it "revives colors."
A copy of the Court's order dated July 29, 2022 is available from
PacerMonitor.com at https://bit.ly/3d9hzgb at no extra charge.[CC]
RED TOMATOES: Vargas Sues Over Unpaid Wages for Grocery Store Staff
-------------------------------------------------------------------
JOSE R. VARGAS, individually and on behalf of all others similarly
situated, Plaintiff v. RED TOMATOES FARMERS MARKET, BAIT DARAS LLC,
AKRAM A. BAROUD, and DOES 1 through 20, inclusive, Defendants, Case
No. 22STCV24089 (Cal. Super., Los Angeles Cty., July 26, 2022) is a
class action against the Defendants for violations of California
Labor Code and California's Business and Professions Code including
failure to pay minimum wages, failure to compensate for all hours
worked, failure to pay overtime wages, failure to pay meal periods,
failure to pay rest breaks, failure to furnish accurate itemized
wage statements, failure to pay wages upon discharge, failure to
indemnify and illegal wage deductions, and unfair competition.
The Plaintiff was employed by the Defendants as a meatcutter for
approximately one year through April 13, 2022.
Bait Daras LLC, doing business as Red Tomatoes Farmers Market, is a
grocery store business located at 9950 W. Foothill Blvd., Rancho
Cucamonga, California. [BN]
The Plaintiff is represented by:
Sarkis Sirmabekian, Esq.
SIRMABEKIAN LAW FIRM, PC
3435 Wilshire Blvd., Suite 1710
Los Angeles, CA 90010
Telephone: (818) 473-5003
Facsimile: (818) 476-5619
E-mail: contact@slawla.com
REDD HOFFMAN & BRAMLETT: Walsh Files FDCPA Suit in S.D. Texas
-------------------------------------------------------------
A class action lawsuit has been filed against The Offices of Redd,
Hoffman & Bramlett, LLC. The case is styled as Angelique Walsh,
individually and on behalf of all others similarly situated v. The
Offices of Redd, Hoffman & Bramlett, LLC, Case No. 3:22-cv-00268
(S.D. Tex., July 26, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
The Offices of Redd, Hoffman & Bramlett, LLC --
https://reddhoffbram.com/ -- help consumers resolve past-due debt
obligations.[BN]
The Plaintiff is represented by:
Yaakov Saks, Esq.
STEIN SAKS, PLLC
One University Plaza, Suite 620
Hackensack, NJ 07601-2726
Phone: (201) 282-6500
Email: ysaks@steinsakslegal.com
REFINERY 29 INC: Brown Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Refinery 29 Inc., et
al. The case is styled as Lamar Brown, on behalf of himself and all
others similarly situated v. Refinery 29 Inc., Vice Media LLC, Case
No. 1:22-cv-06378 (S.D.N.Y., July 27, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Refinery29 (R29) -- https://www.refinery29.com/en-us -- is an
American multinational feminist digital media and entertainment
website focused on young women.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
RESEARCH STRATEGIES: Seeks Leave to File Supplemental Response
--------------------------------------------------------------
In the class action lawsuit captioned as MARGARETTE DUVERGER,
individually and on behalf of all others similarly situated, v.
RESEARCH STRATEGIES, INC., an Alabama corporation, Case No.
0:21-cv-62465-RAR (S.D. Fla.), the Defendant asks the Court to
enter an order granting them leave to file its Supplemental
Response in Opposition to Plaintiff's Motion for Class
Certification, and for such other and further relief as this Court
deems just and proper.
Research Strategies is a full-service Consumer, Public Opinion &
Business-to-Business Market Research Company.
A copy of the Defendant's motion dated July 29, 2022 is available
from PacerMonitor.com at https://bit.ly/3oXOLKy at no extra
charge.[CC]
The Plaintiff is represented by:
Stefan Coleman, Esq.
201 S. Biscayne Blvd., 28 th Floor
Miami, FL 33131
Telephone: (877) 333-9427
E-mail: law@stefancoleman.com
- and -
Avi Kaufman, Esq.
400 N.W. 26 th Street
Miami, FL 33127
Telephone: (305) 469-5881
E-mail: kaufman@kaufmanpa.com
The Defendant is represented by:
Richard L. Allen, Esq.
Justin M. Henning, Esq.
KRINZMAN HUSS LUBETSKY
FELDMAN & HOTTE
Alfred I. duPont Building
169 E. Flagler Street, Suite 500
Miami, FL 33131
Telephone: (305) 854-9700
Facsimile: (305) 854-0508
E-mail: rla@khllaw.com
jmh@khllaw.com
mlopez@khllaw.com
eservicemia@khllaw.com
ROCKET MORTGAGE: Romero Files TCPA Suit in C.D. California
----------------------------------------------------------
A class action lawsuit has been filed against Rocket Mortgage, LLC,
et al. The case is styled as Marlon Romero, individually and on
behalf of all others similarly situated v. Rocket Mortgage, LLC,
Does 1-10, inclusive, Case No. 5:22-cv-01323 (C.D. Cal., July 28,
2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Rocket Mortgage, LLC -- https://www.rocketmortgage.com/ -- is a
mortgage loan provider.[BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
LAW OFFICES OF TODD M. FRIEDMAN PC
21031 Ventura Boulevard, Suite 340
Woodland Hills, CA 91364
Phone: (323) 306-4234
Fax: (866) 633-0228
Email: tfriedman@toddflaw.com
RYDER SYSTEM: Ct. Amends Class Cert Reply Deadline to Feb. 17, 2023
-------------------------------------------------------------------
In the class action lawsuit captioned as Key West Police & Fire
Pension Fund v. Ryder System, Inc. et al., Case No. 1:20-cv-22109
(S.D. Fla.), the Hon. Judge Aileen M. Cannon entered an order
granting the Plaintiffs' unopposed motion to set class
certification reply deadline.
-- The Court's June 27, 2022 Scheduling Order is
amended to set a deadline of February 17, 2023 as
Plaintiffs' class certification reply deadline.
The suit alleges violation of the Securities Exchange Act.
Ryder is an American transportation and logistics company. It is
especially known for its fleet of commercial rental trucks. Ryder
specializes in fleet management, supply chain management, and
transportation management.[CC]
SAN DIEGO: Knox Sues Over Wage-and-Hour Violations in California
----------------------------------------------------------------
ERICA CHRISTIAN KNOX, individually and on behalf of all others
similarly situated, Plaintiff v. SAN DIEGO CENTER FOR CHILDREN and
DOES 1 to 50, inclusive, Defendants, Case No.
37-2022-00029638-CU-OE-CTL (Cal. Super., San Diego Cty., July 27,
2022) is a class action against the Defendant for violations of the
California Labor Code's Private Attorneys General Act of 2004
including failure to pay for all hours worked at the proper rate,
failure to provide sick pay and appropriate leave, failure to
provide meal periods, failure to maintain accurate time records,
failure to provide rest periods, failure to reimburse business
expenses, and failure to pay for wages at the termination of
employment.
The Plaintiff was employed by the Defendant as a non-exempt
employee.
San Diego Center for Children is a business center, with its place
of business located at 3002 Armstrong Street, San Diego,
California. [BN]
The Plaintiff is represented by:
Darren M. Cohen, Esq.
KINGSLEY & KINGSLEY, APC
16133 Ventura Blvd., Suite 1200
Encino, CA 91436
Telephone: (818) 990-8300
Facsimile: (818) 990-2903
E-mail: dcohen@kingsleykingsley.com
SEAWORLD PARKS: Discriminates Against Black Guests, Burns Alleges
-----------------------------------------------------------------
QUINTON BURNS, individually and as Next Friend of K.B. (a minor),
and on behalf of all others similarly situated, Plaintiffs v.
SEAWORLD PARKS & ENTERTAINMENT, INC. d/b/a SESAME PLACE
PHILADELPHIA; and SEAWORLD PARKS & ENTERTAINMENT LLC d/b/a SESAME
PLACE PHILADELPHIA; and JOHN DOES 1,2,3, and 4, Defendants, Case
No. 2:22-cv-02941-WB (E.D. Pa., July 27, 2022) is a class action
against the Defendants for the Civil Rights Act of 1866 and the
Pennsylvania common law.
According to the complaint, the Defendants breached their contracts
with the Plaintiffs and similarly situated customers by refusing to
engage with them and ignoring them and all other Black guests in
attendance during the "Meet and Greets" show at SeaWorld's
amusement park, Sesame Place Philadelphia. SeaWorld's performers
readily engaged with numerous similarly situated white customers
and their children who participated in the costume character
performer "Meet and Greets." The Plaintiffs allege that SeaWorld's
actions, by their agents and/or employees, were intentional race
discrimination.
SeaWorld Parks & Entertainment, Inc., doing business as Sesame
Place Philadelphia, is an American theme park and entertainment
company headquartered in Orlando, Florida.
SeaWorld Parks & Entertainment LLC, doing business as Sesame Place
Philadelphia, is an American theme park and entertainment company
headquartered in Orlando, Florida. [BN]
The Plaintiff is represented by:
William H. Murphy, Jr., Esq.
Andrew K. O'Connell, Esq.
Malcolm P. Ruff, Esq.
Ronald E. Richardson, Esq.
MURPHY, FALCON & MURPHY
1 South Street, Suite 3000
Baltimore, MD 21202
Telephone: (410) 539-6500
Facsimile: (410) 539-6599
E-mail: billy.murphy@murphyfalcon.com
andrew.oconnell@murphyfalcon.com
malcolm.ruff@murphyfalcon.com
ronald.richardson@murphyfalcon.com
- and –
Mart Harris, Esq.
THE TRIAL LAW FIRM, LLC
Fort Pitt Commons
445 Fort Pitt Boulevard, Suite 220
Pittsburgh, PA 15219
Telephone: (412) 588-0030
E-mail: mh@tlawf.com
- and –
Jason Duncan, Esq.
DUNCAN LEGAL GROUP
2001 N. Front Street
Harrisburg, PA 17102
Telephone: (717) 232-1886
Facsimile: (717) 232-4189
E-mail: jaybdunc@gmail.com
SHIELDS HEALTH: Fails to Protect Patients' Info, Colby Claims
-------------------------------------------------------------
JULIE COLBY, individually and on behalf of all others similarly
situated, Plaintiff v. SHIELDS HEALTH CARE GROUP INC., Defendant,
Case No. 1:22-cv-11209-PBS (D. Mass., July 27, 2022) is a class
action against the Defendant for negligence, invasion of privacy,
breach of contract, breach of implied contract, unjust enrichment,
breach of fiduciary duty, breach of confidence, and violations of
Maine Unfair Trade Practices Act, Maine Uniform Deceptive Trade
Practices Act, and Maine Confidentiality of Health Care Information
Law.
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 and (2)
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.
Shields Health Care Group Inc. is a provider of healthcare
services, with its principal place of business in Quincy,
Massachusetts. [BN]
The Plaintiff is represented by:
Patrick T. Egan, Esq.
Nathaniel L. Orenstein, Esq.
BERMAN TABACCO
One Liberty Square
Boston, MA 02109
Telephone: (617) 542-8300
E-mail: pegan@bermantabacco.com
norenstein@bermantabacco.com
- and –
Melissa R. Emert, Esq.
Gary S. Graifman, Esq.
KANTROWITZ, GOLDHAMER & GRAIFMAN, P.C.
135 Chestnut Ridge Road, Suite 200
Montvale, NJ 07645
Telephone: (201) 391-7000
Facsimile: (201) 307-1086
E-mail: memert@kgglaw.com
ggraifman@kgglaw.com
- and –
Lynda Grant, Esq.
THEGRANTLAWFIRM, PLLC
521 Fifth Avenue, 17th Floor
New York, NY 10175
Telephone: (212) 292-4441
Facsimile: (212) 292-4442
E-mail: lgrant@grantfirm.com
SOCLEAN INC: Sanitizing Machines Emit Ozone, Smith Suit Claims
--------------------------------------------------------------
MARGUERITE SMITH, on behalf of herself and all others similarly
situated v. SOCLEAN, INC., Case No. 2:22-cv-01076-JFC (W.D.N.C.,
July 26, 2022) alleges that 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.
Since approximately 2012, SoClean manufactured and marketed devices
used to clean continuous positive airway pressure (CPAP) machines.
The SoClean devices work by generating ozone to sterilize and
deodorize CPAP machines. Ozone is an unstable toxic gas with a
pungent characteristic odor that can kill bacteria and viruses. To
be effective as a germicide, ozone must be present in a
concentration far greater than can be safely tolerated by humans or
animals.
According to the complaint, 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
given 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.
SoClean represents that its devices use the same sanitizing process
found in "hospital sanitizing," however, hospitals cannot and do
not use ozone sanitizers in spaces occupied by patients. SoClean
also claims that separately sold filters convert "activated oxygen"
into "regular oxygen," which is false because SoClean's filters
have no measurable effect on the device's ozone output. Finally,
SoClean falsely claims that its devices are "sealed" such that
"activated oxygen" (i.e., ozone) does not escape the devices, the
suit says.
SoClean's violation of federal regulations as well as its
misrepresentations, concealment, half-truths, and omissions have
allowed it to command 90% of the relevant market. Due to the nature
of SoClean's business, its customers all are ill or infirm because
they have breathing problems for which they are receiving medical
treatment in the form of CPAP therapy. If CPAP users knew that the
SoClean devices generate unsafe levels of toxic gas, which is then
pumped into their CPAP machines and into their bedrooms, they would
find this risk material to their purchasing decisions. SoClean's
representations are designed to mislead consumers into believing
that the machine uses a benign form of oxygen to clean CPAP
machines rather than a harsh gas that is generally only suitable
for commercial sanitization under highly controlled conditions.
These misrepresentations, concealment, half-truths, and omissions
are made more egregious because the SoClean devices are designed
and marketed for use on the consumer's bedside table and because
CPAP users suffer from many symptoms that ozone exposure
exacerbates – making the falsehoods especially reprehensible and
dangerous, added the suit.
Plaintiff Marguerite Smith resides in the city of Holly, in Gaston
County, North Carolina. In or around October of 2018, Plaintiff
purchased a SoClean 2 device to clean her ResMed CPAP machine.
Plaintiff Smith considered the ability to sanitize her device, her
safety, and the price when she made her purchasing decision. She
would not have purchased the SoClean if she knew what she knows now
about the SoClean.
SoClean manufactures cleaning devices.[BN]
The Plaintiff is represented by:
Joel R. Rhine, Esq.
RHINE LAW FIRM, P.C.
1612 Military Cutoff Road, Suite 300
Wilmington, NC 28403
Telephone: (910) 772-9960
E-mail: jrr@rhinelawfirm.com
- and -
Ruth Anne French-Hodson, Esq.
Sarah T. Bradshaw, Esq.
SHARP LAW FIRM
4820 W. 75th St.
Prairie Village, KS 66208
Telephone: (913) 901-0505
E-mail: rafrenchhodson@midwest-law.com
sbradshaw@midwest-law.com
- and -
Gary E. Mason, Esq.
Danielle L. Perry, Esq.
MASON LLP
5101 Wisconsin Ave., Suite 305
Washington, DC 20016
Telephone: (202) 429-2290
E-mail: gmason@masonllp.com
dperry@masonllp.com
- and -
Ronald Verdell Johnson, IV, Esq.
Russell L. Johnson, Esq.
DEAKLE-JOHNSON LAW FIRM, PLLC
P.O. Box 2072
Hattiesburg, MS 39403
Telephone: (601) 544-0631
E-mail: rljohnson@djlawms.com
rvjohsnon@djlawms.com
SUSAN WASHBURN: Court Lifts Stay of Reyes Class Action
------------------------------------------------------
In the class action lawsuit captioned as Juan Manuel Reyes v. Susan
Washburn, Andrea Neistadt, L. Legore, C. Bolles, Capt. J. Walker
and Capt. T. Stewart, Case No. 2:21-cv-01175 (D. Or.), the Hon.
Judge Stacie F. Beckerman entered an order lifting the stay of this
action.
Any motions to dismiss or amend the operative complaint in this
case (or, alternatively, an answer) shall be filed by October 5,
2022 (i.e., thirty days after the deadline to opt out of the Maney
class action).
The Court has now certified two classes of plaintiffs in the Maney
class action:
-- the Damages Class, which includes all adults incarcerated
in ODOC facilities who were incarcerated on or after
February 1, 2020, and while incarcerated, tested positive
or were otherwise diagnosed with COVID-19 (and if they
became incarcerated after February 1, 2020, tested positive
or were otherwise diagnosed with COVID-19 at least 14 days
after they entered ODOC custody); and
-- the Wrongful Death Class.
The nature of suit states Prisoner Civil Rights.[CC]
SUSHI FUSSION: Sun Appeals Partial Ruling on Attorney's Fee Bid
---------------------------------------------------------------
ZHENKAI SUN, et al., are taking an appeal from a court ruling
granting in part their motion for attorney's fees and costs in
their lawsuit entitled Zhenkai Sun, et al., on behalf of themselves
and all others similarly situated, Plaintiffs, v. Sushi Fussion
Express, Inc., et al., Defendants, Case No. 16-cv-4840, in the U.S.
District Court for the Eastern District of New York.
The Plaintiffs brought this class action suit against the
Defendants for unpaid wages in violation of the Fair Labor
Standards Act and the New York Labor Law.
On December 31, 2021, the Plaintiffs filed a motion for attorney's
fees and costs which the court granted in part on June 17, 2022,
through an Order entered by District Judge Rachel P. Kovner. The
court ruled to award Plaintiff Yangyang Gao $37,315.85 in
attorney's fees and $2,054.10 in costs in conjunction with the
judgment entered on April 28, 2022, which provides that Plaintiff
Yangyang Gao will recover from defendants SUSHI FUSSION LLC., Sushi
Fussion of 47th St Inc, Leva Katanov the amount of $361,744.64,
which includes prejudgment interest at the rate of 9.00%, plus post
judgment interest at the rate of 1.96% per annum, along with
costs.
The appellate case is captioned as Sun, et al. v. Sushi Fussion
Express, Inc., et al., Case No. 22-1538, in the United States Court
of Appeals for the Second Circuit, filed on July 18, 2022. [BN]
Plaintiffs-Appellants Zhenkai Sun, et al., on behalf of themselves
and all others similarly situated, are represented by:
John Troy, Esq.
TROY LAW PLLC
41-25 Kissena Boulevard
Flushing, NY 11355
Telephone: (718) 762-2332
E-mail: roylaw@troypllc.com
Defendants-Appellees Sushi Fussion Express, Inc., et al., are
represented by:
Michael M. Yugadaev, Esq.
17 Hilltop Place
Monsey, NY 10952
Telephone: (718) 801-6013
- and -
Michael Samuel, Esq.
SAMUEL & STEIN
38 West 32nd Street
New York, NY 10001
Telephone: (212) 563-9884
TARGET CORP: Torres Suit Transferred From E.D. to C.D. California
-----------------------------------------------------------------
The U.S. District Court for the Eastern District of California
transferred the lawsuit titled ALICIA TORRES, an individual, on
behalf of herself and on behalf of all persons similarly situated,
Plaintiff v. TARGET CORPORATION, a Corporation; and DOES 1 through
50, inclusive, Defendants, Case No. 2:22-cv-01017-TLN-KJN (E.D.
Cal.), to the U.S. District Court for the Central District of
California.
Target removed the case to the Eastern District of California on
June 10, 2022. On July 8, 2022, the Plaintiff filed a motion to
remand the case to the Superior Court of the State of California
for the County of Sacramento.
On July 8, 2022, Target filed a motion for judgment on the
pleadings or, in the alternative, to transfer venue to the Central
District of California pursuant to 28 U.S.C. Section 1404(a).
Pursuant to Local Rule 230(c), the Parties' respective oppositions
were due July 22, 2022. The Parties' respective motions are set for
hearing on Aug. 25, 2022.
The Plaintiff agrees to withdraw her motion to remand. Target
agrees to withdraw its motion for judgment on the pleadings.
The Parties agree that neither Party needs to file an opposition to
the other's respective motion by July 22, 2022, and the Parties
will only need to file an opposition if the Court declines to
approve this Stipulation, in which case each Party must file an
opposition to the other's motion, if any, within seven days of the
date the Court declines to approve this Stipulation.
The Parties further agree that (a) Target's motion to transfer
venue pursuant to 28 U.S.C. Section 1404(a) should be granted for
the convenience of parties and witnesses, in the interest of
justice, and (b) the Court should transfer venue of this action to
the Central District of California where an earlier-filed class
action lawsuit against Target is pending (Medina v. Target
Corporation, C.D. Cal. Case No. 5:22-cv-00805-JGB (SHKx)).
Therefore, the Parties jointly request and stipulate, subject to
the Court's approval, that:
1. The Plaintiff's motion to remand the action to state court
be withdrawn;
2. Target's motion for judgment on the pleadings be withdrawn;
3. Target's motion to transfer venue to the United States
District Court for the Central District of California
pursuant to 28 U.S.C. Section 1404(a) be granted;
4. The Aug. 25, 2022, hearing on the Parties' respective
motions be vacated; and
5. The case be transferred to the United States District Court
for the Central District of California.
The Court approves the Stipulation. Accordingly:
6. The Plaintiff's motion to remand the action to state court
is withdrawn;
7. Target's motion for judgment on the pleadings is withdrawn;
8. Target's motion to transfer venue to the United States
District Court for the Central District of California
pursuant to 28 U.S.C. Section 1404(a) is granted; and
9. The Aug. 25, 2022, hearing on the Parties' respective
motions is vacated.
Based on this, the case will be transferred to the United States
District Court for the Central District of California.
A full-text copy of the Court's Stipulation and Order dated July
21, 2022, is available at https://tinyurl.com/mrr4a34d from
Leagle.com.
Julie A. Dunne -- julie.dunne@dlapiper.com -- MATTHEW RILEY --
matthew.riley@dlapiper.com -- ALBERTO CORONA --
alberto.corona@dlapiper.com -- DLA PIPER LLP (US), in San Diego,
California, Attorneys for Defendant TARGET CORPORATION.
Norman B. Blumenthal -- norm@bamlawca.com -- Kyle R. Nordrehaug --
kyle@bamlawca.com -- Aparajit Bhowmik -- aj@bamlawca.com -- Piya
Mukherjee -- Piya@bamlawca.com -- Victoria Rivapalacio --
victoria@bamlawca.com -- Charlotte James -- charlotte@bamlawca.com
-- BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP, in La Jolla,
California, Attorneys for Plaintiff ALICIA TORRES.
THRIVE MARKET: Shaw EFTA Suit Removed to C.D. California
--------------------------------------------------------
The case styled DEBRA SHAW and DIANE VARELA, on behalf of
themselves and all others similarly situated v. THRIVE MARKET
TECHNOLOGIES, INC., and DOES 1-10, Case No. 22STCV20582, was
removed from the Superior Court of the State of California for the
County of Los Angeles to the U.S. District Court for the Central
District of California on July 26, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 2:22-cv-05153 to the proceeding.
The case arises from the Defendant's alleged violations of the
Electronic Funds Transfer Act by failing to obtain authorization
from the Plaintiffs and similarly situated consumers before
withdrawing funds from their bank accounts.
Thrive Market Technologies, Inc. is a membership-based online
company that offers natural and organic food products, doing
business in California. [BN]
The Defendant is represented by:
Kathy J. Huang, Esq.
Rachel E.K. Lowe, Esq.
Jonathan J. Kim, Esq.
ALSTON & BIRD LLP
333 South Hope Street, Suite 1600
Los Angeles, CA 90071
Telephone: (213) 576-1000
Facsimile: (213) 576-1100
E-mail: kathy.huang@alston.com
rachel.lowe@alston.com
jonathan.kim@alston.com
TWITTER INC: Gray Loses Bid to Stay Suit Over Resolution of Morgan
------------------------------------------------------------------
Judge Lauren King of the U.S. District Court for the Western
District of Washington, Seattle, denies the Plaintiff's motion to
stay the lawsuit entitled DARLIN GRAY, individually and on behalf
of all others similarly situated, Plaintiff v. TWITTER, INC.,
Defendant, Case No. 2:20-cv-01389-LK (W.D. Wash.).
The matter comes before the Court on the motion of Plaintiff Darlin
Gray for a stay of her action pending the resolution of a similar
action filed in Spokane County Superior Court, Morgan v. Twitter,
No. 22-2-01372-32 (Spokane Cnty. Sup. Ct.). Specifically, Gray
seeks a stay "until such time as it is clear that her claims will
be resolved in Morgan, such as through her recognition as a member
of a class in Morgan, or due to a final resolution adverse to her
legal theory by the Washington Supreme Court."
Ms. Gray filed this lawsuit on September 21, 2020, bringing class
action claims against Twitter, Inc., for violating Section
9.26A.140 of the Revised Code of Washington ("Section 140"). On
Dec. 7, 2020, Twitter filed a motion to dismiss, arguing that the
complaint failed to state a claim under Section 140. The Honorable
Brian A. Tsuchida issued a report and recommendation ("R&R") that
recommended dismissal of Gray's claims with prejudice. In April
2021, Gray filed objections to the R&R, and separately filed a
motion to certify five questions to the Washington Supreme Court
regarding issues ostensibly raised by Judge Tsuchida's R&R. Judge
Tsuchida's R&R and Gray's motion to certify questions to the
Washington Supreme Court remain pending before the Court.
On May 3, 2022, the Morgan Action was filed in Spokane County
Superior Court. Lead counsel for the Plaintiff and putative class
in Morgan also serves as counsel for Gray and the putative class in
this suit (Morgan v. Twitter, No. C22-0122-MKD, Dkt. No. 1 at 23
(E.D. Wash. May 19, 2022)).
On May 19, 2022, Twitter removed the Morgan Action to the U.S.
District Court for the Eastern District of Washington. On the same
day, Twitter moved to stay the Morgan Action. On May 26, 2022, the
plaintiff in Morgan filed a motion to remand to state court. Gray
agrees that remand is warranted in Morgan.
The Court begins and ends its analysis of Gray's motion with the
first-to-file rule. The first-to-file rule is a doctrine of federal
comity that allows a district court to decline jurisdiction over a
second-filed action when a similar action is already pending in
another district. The rule applies to federal cases removed from
state court. The aim is to avoid duplicative litigation and promote
judicial efficiency.
In deciding whether to transfer under the first-to-file rule, Judge
King notes that a court analyzes three factors: chronology of the
lawsuits, similarity of the parties, and similarity of the issues,
citing Kohn L. Grp., Inc. v. Auto Parts Mfg. Mississippi, Inc., 787
F.3d 1237, 1240 (9th Cir. 2015). With respect to the latter two
factors, the parties and issues need not be identical, but they
must be substantially similar. In the context of a class action,
courts compare the putative classes rather than the named
plaintiffs to see whether both classes seek to represent at least
some of the same individuals.
Judge King says this action was filed well before the Morgan
Action. The parties are substantially similar because the proposed
class definitions in Morgan and this action are virtually the same.
Given that the proposed Morgan class is identical to the one in
this action save for the qualification that the class member's
telephone number must be "associated with a Twitter account" and
the slightly earlier end date for class membership, it is clear
that the proposed class in this action is similar to the one in
Morgan and would likely encompass all the members of that proposed
class.
Finally, Judge King finds that the issues at stake in the two cases
are substantially similar; as Gray acknowledges, judgment in Morgan
would resolve her claims in this case because the Morgan Action
raises "class claims under the same legal theory" as in this case.
Ignoring the first-to-file rule, Gray seeks a stay of this action
because the issues being litigated here may now be adjudicated in
state court, and because there is no reason for the Western
District of Washington to expend precious judicial resources on
adjudication of a state law claim that will likely be resolved by a
state court. But neither judicial economy nor the prospect of state
court adjudication warrant a stay of this action, Judge King points
out.
Both the parties and the Court have already invested substantial
resources in litigating Gray's claims in this forum. Twitter's
motion to dismiss and Gray's motion to certify questions to the
Washington Supreme Court have both been fully briefed by the
parties, and Judge Tsuchida has already issued an R&R on the motion
to dismiss with objections from Gray and a response to those
objections from Twitter. All of this effort had already been
expended before the Morgan Action was filed on May 3, 2022. Gray
fails to explain why litigating a new case involving virtually the
same claims would conserve judicial resources rather than waste
them, Judge King opines.
Nor is the Court persuaded that the possibility that Morgan may be
remanded to state court warrants a stay. Judge King points out that
Gray cites no law in support of her contention that it would be
preferable for a state court instead of a federal court to
adjudicate her claims. After all, Gray herself filed this action in
federal court.
In any case, Morgan remains pending in federal court, and the Court
declines to prejudge the merits of the Morgan motion to remand by
finding remand to be inevitable.
A full-text copy of the Court's Order dated July 21, 2022, is
available at https://tinyurl.com/3zd2xa3b from Leagle.com.
UNITI GROUP: Safadi's Bid for Class Certification Tossed as Moot
----------------------------------------------------------------
In the class action lawsuit captioned as Safadi v. Uniti Group Inc
et al., Case No. 4:19-cv-00756-BSM (E.D. Ark.), the Court entered
an order denying as moot the Plaintiffs' motion for class
certification.
The case is conslidated in re UNITI GROUP, INC. SECURITIES
LITIGATION.
Uniti Group operates as a real estate investment trust.
A copy of the Court's order dated July 29, 2022 is available from
PacerMonitor.com at https://bit.ly/3QnTBwj at no extra charge.[CC]
UPSTART HOLDINGS: Crain Sues Over 56% Decline of Stock Price
------------------------------------------------------------
KEVIN CRAIN, individually and on behalf of all others similarly
situated, Plaintiff v. UPSTART HOLDINGS, INC., DAVID J. GIROUARD,
and SANJAY DATTA, Defendants, Case No. 2:22-cv-02935-ALM-EPD (S.D.
Ohio, July 26, 2022) is a class action against the Defendants for
violations of Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934.
According to the complaint, the Defendants made materially false
and/or misleading statements concerning Upstart's business,
operations, and prospects with the U.S. Securities and Exchange
Commission in order to trade Upstart securities at artificially
inflated prices between March 18, 2021 and May 9, 2022.
Specifically, the Defendants mislead investors and/or failed to
disclose that: (i) Upstart's artificial intelligence (AI)
underwriting model could not and did not adequately account for
macroeconomic factors such as interest rate increases and the end
of the U.S. government stimulus; (ii) as a result, Upstart was
experiencing negative impacts on its conversion rate; (iii) as a
result, the company was reasonably likely to use its balance sheet
to fund loans, rendering its balance sheet highly exposed to credit
risk; and (iv) as a result of the foregoing, the Defendants'
positive statements about the company's business, operations, and
prospects were materially false and/or misleading and/or lacked a
reasonable basis, says the suit.
When the truth emerged, the price of Upstart shares declined 56
percent, from a closing price of $77.13 per share on May 9, 2022,
to a closing price of $33.61 per share on May 10, 2022.
Upstart Holdings, Inc. is a financial technology firm, with its
principal executive offices located in San Mateo, California. [BN]
The Plaintiff is represented by:
Joseph F. Murray, Esq.
Brian K. Murphy, Esq.
Geoffrey J. Moul, Esq.
MURRAY MURPHY MOUL + BASIL LLP
1114 Dublin Road
Columbus, OH 43215
Telephone: (614) 488-0400
Facsimile: (614) 488-0401
E-mail: murray@mmmb.com
murphy@mmmb.com
moul@mmmb.com
VENATOR MATERIALS: $19MM Class Settlement to be Heard on Sept. 9
----------------------------------------------------------------
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IN RE: VENATOR MATERIALS PLC
SECURITIES LITIGATION
Civil Action No. 4:19-cv-03464
SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION AND PROPOSED
SETTLEMENT; (II) SETTLEMENT HEARING; AND (III) MOTION FOR
ATTORNEYS' FEES AND LITIGATION EXPENSES
This notice is for all persons and entities who purchased or
otherwise acquired the publicly traded common stock of Venator
Materials PLC ("Venator") from August 2, 2017 through October 29,
2018, inclusive (the "Settlement Class"). Certain persons and
entities are excluded from the Settlement Class by definition, as
set forth in the full printed Notice of (I) Pendency of Class
Action and Proposed Settlement; (II) Settlement Hearing; and (III)
Motion for Attorneys' Fees and Litigation Expenses (the "Notice").
PLEASE READ THIS NOTICE CAREFULLY; YOUR RIGHTS MAY BE AFFECTED BY A
CLASS ACTION LAWSUIT PENDING IN THIS COURT.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the United States District Court
for the Southern District of Texas (the "Court"), that the
above-captioned litigation (the "Action") is pending in the Court.
YOU ARE ALSO NOTIFIED that Lead Plaintiffs Fresno County Employees'
Retirement Association ("Fresno"), City of Miami General Employees'
& Sanitation Employees' Retirement Trust ("Miami"), and City of
Pontiac General Employees' Retirement System ("Pontiac"; together
with Fresno and Miami, "Plaintiffs") have reached a proposed
settlement of the Action for $19,000,000 in cash (the "Settlement")
on behalf of the Settlement Class, that, if approved, will resolve
all claims in the Action.
A hearing will be held on September 9, 2022, at 10:00 a.m. Central
Time, before the Honorable George C. Hanks, Jr., either in person
at the United States District Court for the Southern District of
Texas, Courtroom 600, Bob Casey United States Courthouse, 515 Rusk
Avenue, Houston, Texas 77002, or by telephone or videoconference
(in the discretion of the Court) for the following purposes: (a)
to determine whether the proposed Settlement on the terms and
conditions provided for in the Stipulation and Agreement of
Settlement dated March 11, 2022 (the "Stipulation") is fair,
reasonable, and adequate to the Settlement Class and should be
finally approved by the Court; (b) to determine whether a judgment
substantially in the form attached as Exhibit B to the Stipulation
should be entered dismissing the Action with prejudice against
Defendants; (c) to determine whether the Settlement Class should be
certified for purposes of the Settlement; (d) to determine whether
the proposed Plan of Allocation for the proceeds of the Settlement
is fair and reasonable and should be approved; (e) to determine
whether the motion by Lead Counsel for attorneys' fees and
reimbursement of expenses should be approved; and (f) to consider
any other matters that may properly be brought before the Court in
connection with the Settlement.
If you are a member of the Settlement Class, your rights will be
affected by the pending Action and the Settlement, and you may be
entitled to share in the Settlement Fund. If you have not yet
received the Notice and Claim Form, you may obtain copies of these
documents by contacting the Claims Administrator at Venator
Securities Litigation, c/o JND Legal Administration, P.O. Box
91370, Seattle, WA 98111, 1-855-606-2267. Copies of the Notice and
Claim Form can also be downloaded from the website maintained by
the Claims Administrator, www.VenatorSecuritiesLitigation.com.
If you are a member of the Settlement Class, in order to be
eligible to receive a payment under the proposed Settlement, you
must submit a Claim Form postmarked (if mailed), or online, no
later than October 17, 2022, in accordance with the instructions
set forth in the Claim Form. If you are a Settlement Class Member
and do not submit a proper Claim Form, you will not be eligible to
share in the distribution of the net proceeds of the Settlement but
you will nevertheless be bound by any releases, judgments, or
orders entered by the Court in connection with the Settlement.
If you are a member of the Settlement Class and wish to exclude
yourself from the Settlement Class, you must submit a request for
exclusion such that it is received no later than August 19, 2022,
in accordance with the instructions set forth in the Notice. If
you properly exclude yourself from the Settlement Class, you will
not be bound by any releases, judgments, or orders entered by the
Court in the Action and you will not be eligible to share in the
net proceeds of the Settlement.
Any objections to the proposed Settlement, the proposed Plan of
Allocation, or Lead Counsel's motion for attorneys' fees and
reimbursement of litigation expenses, must be filed with the Court
and delivered to Lead Counsel and Venator's counsel such that they
are received no later than August 19, 2022, in accordance with the
instructions set forth in the Notice.
PLEASE DO NOT CONTACT THE COURT, THE CLERK'S OFFICE, VENATOR, THE
OTHER DEFENDANTS, OR THEIR COUNSEL REGARDING THIS NOTICE. All
questions about this notice, the proposed Settlement, or your
eligibility to participate in the Settlement should be directed to
Lead Counsel or the Claims Administrator. Visit
www.VenatorSecuritiesLitigation.com or call toll-free at
1-855-606-2267.
Inquiries, other than requests for the Notice and Claim Form,
should be made to Lead Counsel:
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
Michael D. Blatchley, Esq.
1251 Avenue of the Americas
New York, NY 10020
1-800-380-8496
settlements@blbglaw.com
Requests for the Notice and Claim Form should be made to:
Venator Securities Litigation
c/o JND Legal Administration
P.O. Box 91370
Seattle, WA 98111
1-855-606-2267
www.VenatorSecuritiesLitigation.com
BY ORDER OF THE COURT
United States District Court
for the Southern District of Texas
VENTURA COUNTY, CA: Stipulation on Class Certification Dates OK'd
-----------------------------------------------------------------
In the class action lawsuit captioned as DAVID WHITE, individually,
and on behalf of all others similarly situated, v. VENTURA COUNTY
CREDIT UNION and DOES 1 through 5, inclusive, Case No.
2:21-cv-05960-DSF-GJS (C.D. Cal.), the Hon. Judge Dale S. Fischer
entered an order granting joint stipulation to continue schedule
for class certification motion and deadline as follows:
-- The Plaintiff's motion for class September 29, 2022
certification due on or before:
-- The Defendant's opposition to October 28, 2022
Plaintiff's motion for class
certification due on or before:
-- The Plaintiff's reply relating November 17, 2022
to the motion for class
certification due on or before:
-- The hearing on Plaintiff's December 5, 2022
motion for class certification
to take place on:
-- The deadline to complete March 6, 2023
discovery is extended to:
A copy of the Court's order dated July 29, 2022 is available from
PacerMonitor.com at https://bit.ly/3PZlWZL at no extra charge.[CC]
VEP ASSOCIATES: Faces Sarr Class Suit Over Time Shaving Violations
------------------------------------------------------------------
ADAM SARR, on behalf of herself, FLSA Collective Plaintiffs, and
the Class, v. VEP ASSOCIATES LLC d/b/a AMERICAN FIRE AND SECURITY,
and ROMAN PYATETSKY, Case No. 1:22-cv-04386 (E.D.N.Y., July 26,
2022) alleges, pursuant to the Fair Labor Standards Act and New
York Labor Law, that the Plaintiff and others similarly situated
are entitled to recover from Defendants unpaid overtime due to time
shaving, liquidated damages, and attorneys' fees and costs.
The Plaintiff alleges that Defendants breached their contract with
Plaintiff and Class Members by failing to pay employer payroll
taxes for Plaintiff and Class Members, as required by the Federal
Insurance Contribution Act. The Plaintiff also alleges that, in
retaining these sums for themselves, Defendants unjustly enriched
themselves at the expense of Plaintiff and Class Members.
The Defendants operate a security company that provide service to
various residentials and commercial properties in New York City.
The Defendants operate hundreds of job sites throughout NYC. All
employees are paid by Defendants regardless of which job site they
work. All job sites have a centralized HR department and have the
same employment policies through the same employment handbook.
Defendants would assign Plaintiff, FLSA Collective Plaintiffs, and
Class Members to various sites throughout NYC.[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) 465-1188
Facsimile: (212) 465-1181
VITAL LINK: Conditional Status of Employee Collectives Sought
-------------------------------------------------------------
In the class action lawsuit captioned as JILL WISE, Individually
and on Behalf of All Others Similarly Situated, v. VITAL LINK,
INC., Case No. 3:21-cv-00193-DPM (E.D. Ark.), the Parties ask the
Court to enter an order:
A. Conditionally certifying the collectives proposed by
Plaintiff:
"All hourly Clinical Employees of Vital Link, Inc. who
received a top out bonus or extra incentive bonus any time
after 15 September 2018;"
B. Approving he use of U.S. Mail and email to distribute the
Plaintiff's proposed Notice and Consent to Join;
C. Approving the form and content for use in providing notice
to the potential collective members;
D. Directing the Defendant to produce the names and last
known telephone numbers, and mailing addresses of each
potential opt-in Plaintiff in an electronically importable
and malleable format, such as Excel, within 14 days after
this Court's Order is entered; and
E. Allowing for an opt-in period of 60 days, to begin 14 days
after the day that Defendant produces the names and
contact information for the putative collective members,
in which putative collective members may submit a Consent
to Join this lawsuit as an opt-in plaintiff; and
F. Granting the Plaintiff leave to send a follow-up reminder
Postcard via U.S. Mail, beginning 30 days after the opt-
in period begins, to potential plaintiffs who have not
responded to the Notice Unopposed Motion for Conditional
Certification and Notice to Collective Members.
The Plaintiff filed her original complaint-collective action on
September 15, 2021. In her Complaint, the Plaintiff alleged wage
violations under the Fair Labor Standards Act ("FLSA") and sought
to represent herself individually and on behalf of similarly
situated hourly employees of Defendant.
Vital Link provides engine test facilities. The Company designs,
manufactures, and installs aircraft hush houses, ground support
equipment.
A copy of the Parties' motion dated July 29, 2022 is available from
PacerMonitor.com at https://bit.ly/3zB5PL2 at no extra charge.[CC]
The Plaintiff is represented by:
Daniel Ford, Esq.
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
One Financial Center
650 South Shackleford, Suite 411
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
E-mail: daniel@sanfordlawfirm.com
josh@sanfordlawfirm.com
VOYAGER 888: Discovery Deadlines Stayed in King Class Action
-------------------------------------------------------------
In the class action lawsuit captioned as KING, et al., v. VOYAGER
888, LLC, et al., Case No. 1:21-cv-00991 (D.D.C.), the Hon. Judge
Robin M. Meriweather entered an order that all discovery and
discovery deadlines are stayed pending resolution of the
Plaintiffs' motion to certify class.
The Court further entered an order that within 14 days after the
Court issues a memorandum opinion resolving the motion to certify
class, the parties shall jointly submit a status report that
includes a proposed schedule and deadlines for
(i) the close of fact discovery;
(ii) dispositive motions; and
(iii) briefing any motion to decertify the collective class.
The suit alleges violation of the Fair Labor Standards Act.[CC]
WAY.COM INC: Darder Files Suit Over Unsolicited Prerecorded Calls
-----------------------------------------------------------------
MIRNA DARDER, individually and on behalf of all similarly situated
individuals, Plaintiff v. WAY.COM INC., a Delaware corporation and
AVENGE DIGITAL, LLC, a Washington limited liability company,
Defendants, Case No. 1:22-cv-03949 (N.D. Ill., July 29, 2022) is a
class action complaint brought against the Defendant for its
alleged violations of the Telephone Consumer Protection Act.
According to the complaint, the Plaintiff received numerous
telemarketing telephone call from the number 918-418-4944. The call
was allegedly placed by Defendant Avenge Digital in an attempt to
solicit the sale of Way.com's products and services. In addition,
Defendant Avenge Digital's call featured an artificial or
pre-recorded voice, specifically an "avatar" or "soundboard"
technology, which involves humans listening into a call and
attempting to press computer buttons to generate a pre-recorded
response that would be consistent with what a human operator may
say. Moreover, the Defendants did not obtain the Plaintiff's prior
express written consent to place such telemarketing calls using a
prerecorded voice, the suit asserts.
Because of the Defendants' alleged unauthorized prerecorded
telemarketing calls, the Plaintiff and other similarly situated
individuals have suffered actual harm in the form of annoyance,
nuisance, and invasion of privacy. Thus, on behalf of himself and
the class of similarly situated individuals, the Plaintiff seeks to
redress their injuries, such as an injunction requiring the
Defendants to cease all unsolicited prerecorded telephone calling
activities in the absence of prior express written consent, and an
award of statutory damages to the class members to be paid into a
common fud for the benefit of the Class, together with costs and
reasonable attorney's fees to be paid from any such common fund.
Way.com Inc. is an internet-based company that offers
automobile-related services, such as auto insurance and parking
reservations. Avenge Digital, LLC is an internet marketing company
that provides lead generation services to Way.com. [BN]
The Plaintiff is represented by:
Steven L. Woodrow, Esq.
Patrick H. Peluso, Esq.
WOODROW & PELUSO, LLC
3900 E. Mexico Ave., Suite 300
Denver, CO 80210
Tel: (720) 213-0675
Fax: (303) 927-0809
E-mail: swoodrow@woodrowpeluso.com
ppeluso@woodrowpeluso.com
WILCO LIFE: Schrader Wage-and-Hour Suit Goes to S.D. California
---------------------------------------------------------------
The case styled DAVID SCHRADER, individually and on behalf of all
others similarly situated v. WILCO LIFE INSURANCE COMPANY, fka
CONSECO LIFE INSURANCE COMPANY, fka MASSACHUSETTS LIFE INSURANCE
COMPANY, and DOES 1-20, inclusive, Case No.
37-2022-00023553-CU-NP-CTL, was removed from the Superior Court of
the State of California in and for the County of San Diego to the
U.S. District Court for the Southern District of California on July
27, 2022.
The Clerk of Court for the Southern District of California assigned
Case No. 3:22-cv-01104-LL-MDD to the proceeding.
The case arises from the Defendant's alleged breach of contract,
breach of the implied covenant of good faith and fair dealing, and
unfair, unlawful, or fraudulent business practices by failing to
receive proper notice that the policy purchased by the Plaintiff's
mother had lapsed for non-payment on July 28, 2014.
Wilco Life Insurance Company, formerly known as Conseco Life
Insurance Company, formerly known as Massachusetts Life Insurance
Company, is an insurance firm, with its principal place of business
in Connecticut. [BN]
The Defendant is represented by:
Ophir Johna, Esq.
MAYNARD COOPER & GALE, LLP
10100 Santa Monica Boulevard, Suite 550
Los Angeles, CA 90067
Telephone: (310) 596-4500
E-mail: ojohna@maynardcooper.com
- and –
Edward M. Holt, Esq.
MAYNARD, COOPER & GALE, P.C.
1901 Sixth Avenue North, Suite 1700
Birmingham, AL 35203
Telephone: (205) 254-1000
Facsimile: (205) 254-1999
E-mail: tholt@maynardcooper.com
ZACHARY HOLDINGS: Blackmon Suit Returned to Texas District Court
----------------------------------------------------------------
Magistrate Judge Elizabeth S. "Betsy" Chestney of the U.S. District
Court for the Western District of Texas, San Antonio Division,
returns to the District Court the lawsuit captioned JAMES R.
BLACKMON, JUSTIN M. ROZELLE, ERIC A. MYERS, JARED MUNSON,
Plaintiffs v. ZACHARY HOLDINGS, INC., CHIEF EXECUTIVE OFFICER OF
ZACHARY HOLDINGS, INC., THE COMPENSATION AND BENEFITS COMMITTEE OF
ZACHARY HOLDINGS, INC., JOHN DOES 1-10, WHOSE NAMES ARE CURRENTLY
UNKNOWN, Defendants, Case No. SA-20-CV-00988-JKP (W.D. Tex.).
The Magistrate Judge states that she issued a Report and
Recommendation recommending that the Court grants the Plaintiffs'
motion for final approval of the parties' class action settlement
and enters the parties' proposed final judgment. Accordingly, all
matters referred to the Magistrate Judge have been considered and
acted upon.
Therefore, the Magistrate Judge ruled that the lawsuit is returned
to the District Court for all purposes.
A full-text copy of the Court's Order dated July 21, 2022, is
available at https://tinyurl.com/mrxx5w28 from Leagle.com.
ZACHARY HOLDINGS: Final OK of $1.9MM Blackmon Settlement Endorsed
-----------------------------------------------------------------
U.S. Magistrate Judge Elizabeth S. "BETSY" Chestney of the U.S.
District Court for the Western District of Texas, San Antonio
Division, issued a Report and Recommendation in the lawsuit
entitled JAMES R. BLACKMON, JUSTIN M. ROZELLE, ERIC A. MYERS, JARED
MUNSON, Plaintiffs v. ZACHARY HOLDINGS, INC., CHIEF EXECUTIVE
OFFICER OF ZACHARY HOLDINGS, INC., THE COMPENSATION AND BENEFITS
COMMITTEE OF ZACHARY HOLDINGS, INC., JOHN DOES 1-10, WHOSE NAMES
ARE CURRENTLY UNKNOWN, Defendants, Case No. SA-20-CV-00988-JKP
(W.D. Tex.).
Judge Chestney tells District Judge Jason K. Pulliam that the
Report and Recommendation concerns the Plaintiffs' Unopposed Motion
for Final Approval of Class Action Settlement. The District Court
referred the case to Judge Chestney for the management of all
non-dispositive pretrial proceedings and has specifically referred
the Plaintiffs' motion for a hearing and disposition. Judge
Chestney, therefore, has authority to issue the recommendation
pursuant to 28 U.S.C. Section 636(b)(1)(B).
The case arises under the Employee Retirement Income Security Act,
29 U.S.C. Section 1001, et seq. Plaintiffs James R. Blackmon,
Justin M. Rozelle, Eric A. Myers and Jared Munson filed this action
on behalf of themselves, the ZHI 401(k) Retirement Savings Plan,
and all other former and present participants in the Plan. The
Plaintiffs allege that the Defendants, who are the alleged Plan
fiduciaries, breached their fiduciary duties to the Plan by: (1)
selecting and retaining imprudent investments in the Plan; (2)
causing the Plan to pay unreasonable investment management fees;
and (3) causing the Plan to pay unreasonable recordkeeping and
administrative fees. The Plaintiffs' Second Amended Complaint, the
live pleading, seeks a declaratory judgment that the acts of the
Defendants violate ERISA, a permanent injunction against the
Defendants, and compensatory damages.
After the District Court denied the Defendants' motion to dismiss,
the case was referred to Judge Chestney. The parties commenced
discovery, including the exchange of discovery requests and
production of more than 13,000 pages of documents related to Plan
administration, relationships between and among fiduciaries, and
the Defendants' investment and service provider monitoring
processes. Prior to the filing of any motion to certify the class
action or additional dispositive motions practice, the parties
reached a settlement.
The Plaintiffs filed a motion for preliminary approval of the
settlement on behalf of Plan participants and the Plan, and Judge
Chestney granted the motion on Feb. 18, 2022, after holding a
hearing. The Order preliminarily approving of the settlement
conditionally certified the following Settlement Class for
settlement purposes:
All persons who participated in the Plan at any time during
the Class Period, including any Beneficiary of a deceased
person who participated in the Plan at any time during the
Class Period, and any Alternate Payee of a Person subject to
a QDRO who participated in the Plan at any time during the
Class Period. Excluded from the Settlement Class are
Defendants and their Beneficiaries.
The Order also preliminarily approved the parties' proposed
settlement as fair and reasonable; established a qualified
settlement fund; scheduled a fairness hearing for final review of
the settlement; approved the appointment of Strategic Claims
Services ("SCS") as settlement administrator; provided a deadline
of May 30, 2022, for any motion for attorneys' fees and briefs in
support of final approval of settlement; and set a deadline of June
14, 2022, for objections to the settlement by class members.
SCS thereafter disseminated the settlement notice via electronic
and first-class mail to 33,690 class members and former plan
participants in March 2022, established a website and other contact
information for the settlement, and followed other notice
procedures mandated by the Class Action Fairness Act of 2005, Rule
23, and the Court's Order. Of the 33,690 class members, 19,031 were
identified as non-active Plan participants and were mailed the
Court-approved Settlement Notice along with a Former Participant
Claim Form. The remaining 14,659 active Plan participants received
the Court-approved Settlement Notice.
The Plaintiffs now request final approval of the settlement, as
well as approval of the requested attorneys' fees, expenses, and
service awards, and the entry of final judgment.
The Court held a fairness hearing on the motion on July 14, 2022,
at which the parties appeared through counsel and reviewed the key
components of the parties' agreement. The Settlement Agreement
provides that the Defendants will make payment in an aggregate
amount of $1,875,000 into a Qualified Settlement Fund, and will
take certain actions in connection with monitoring the Plan's
investments and fees, in exchange for the Settlement Class's
release of its claims described in the Agreement.
The Settlement Fund will be used to pay the following amounts
associated with the Settlement: (1) compensation to members of the
Settlement Class in accordance with the proposed Plan of
Allocation; (2) any Case Contribution Award approved by the Court;
(3) all Attorneys' Fees and Expenses approved by the Court; (4)
Independent Fiduciary Fees and Costs; (5) Administration Costs; and
(6) Taxes and Tax-Related Costs.
The amount to be paid to each Class Member will be determined by
the Plan of Allocation, which provides for pro rata allocation of
settlement proceeds based on the average size of each Class
Member's account during the Class Period. The 14,659 Class Members
who are active participants in the Plan will automatically receive
the benefit of the Settlement, and SCS has received 3,418 Former
Participant Claim Forms for participation by former Plan
participants. After payments have been issued to Class members, any
amount remaining in the Settlement Fund from uncashed checks after
180 days will be distributed back to the Settlement Fund to be
utilized as set forth in the Plan of Allocation. There will be no
reversion to the Defendants.
The Plaintiffs also request the approval of attorneys' fees for
Class Counsel in the amount of 33 1/3% of the Settlement Fund
($625,000), reimbursement of expenses actually incurred in the
prosecution of this case in the amount of $43,372.06, and Case
Contribution Awards for each Class Representative (each of the four
Plaintiffs) in the amount of $12,500. SCS has not received any
objections to the fairness, reasonableness, or adequacy of the
Settlement, any terms therein, or to the proposed Administrative
Expenses, Attorneys' Fees, or the Plaintiffs' Case Contribution
Awards.
To further ensure that the Settlement Agreement is fair,
reasonable, and adequate, as well as compliance with ERISA's
prohibited transaction provisions, the Parties retained the
independent fiduciary, Fiduciary Counselors, to approve and
authorize the Settlement on behalf of the Plan and Class Members.
The independent fiduciary filed a report with the Court authorizing
the proposed settlement on behalf of the Plan and asserting no
objections to the terms of the parties' agreement.
The Court has already preliminarily approved the Settlement Class
and appointed the Plaintiffs' counsel, Miller Shah LLP and Capozzi
Adler, P.C., as Class Counsel. Judge Chestney notes that none of
the circumstances warranting certification at the preliminary
approval level have changed.
For the reasons stated in the previous order granting preliminary
approval of the settlement, Judge Chestney again finds that the
Settlement Class satisfies the requirements of Rule 23(a) and (b)
and that Class Counsel satisfies the requirements of Rule 23(g).
The Court has also already preliminarily approved the settlement
and satisfied the notice requirements of CAFA and Rule 23. Judge
Chestney has held a live fairness hearing, at which all parties
appeared through counsel. She oncludes that the requirements of
Rule 23(e)(2) have been satisfied. The Plaintiffs' interests are
aligned with the Settlement Class because each member suffered
injuries as a result of Defendants' conduct with respect to the
Plan, and Class Counsel has substantial experience litigating
complex class actions with similar factual and legal issues.
Additionally, the settlement is the result of good faith,
arm's-length negotiations by Class Counsel after engaging in
significant discovery.
There is no indication of any fraud or collusion in Class Counsel's
negotiation of the settlement, which was reached after only two
mediation sessions and, as previously noted, through good-faith,
arm's-length negotiations by counsel, Judge Chestney notes.
Finally, the Class Counsel's opinion that the settlement is fair,
reasonable, and adequate; the approval of each Class
Representative; and the lack of any objections from members of the
Settlement Class all further support final approval.
Judge Chestney opines that the proposed award of 33 1/3% of the
total settlement is reasonable and consistent with awards made by
other district courts in this Circuit under the percentage method.
The requested expenses in the amount of $43,372.06 are also
reasonable.
The Class Representatives also deserve to be compensated for their
time and effort, and the $12,500 award requested for each Plaintiff
is reasonable, Judge Chestney finds. In summary, the District Court
should approve the requested fees, expenses, and case contribution
awards as reasonable.
Having considered the Plaintiffs' motion, the proposed settlement
agreement, the parties' related filings, and the presentation of
counsel at the live hearing, Judge Chestney recommends that the
Plaintiffs' Unopposed Motion for Final Approval of Class Action
Settlement be granted and the Plaintiffs' Proposed Final Approval
Order and Judgment be entered by the District Court.
The United States District Clerk will serve a copy of the Report
and Recommendation on all parties by either (1) electronic
transmittal to all parties represented by attorneys registered as a
"filing user" with the clerk of court, or (2) by mailing a copy to
those not registered by certified mail, return receipt requested.
Written objections to this Report and Recommendation must be filed
within fourteen (14) days after being served with a copy of same,
unless this time period is modified by the district court.
The party will file the objections with the Clerk of Court and
serve the objections on all other parties. A party's failure to
file written objections to the proposed findings, conclusions and
recommendations contained in this report will bar the party from a
de novo determination by the district court.
Additionally, failure to file timely written objections to the
proposed findings, conclusions and recommendations contained in
this Report and Recommendation will bar the aggrieved party, except
upon grounds of plain error, from attacking on appeal the
un-objected-to proposed factual findings and legal conclusions
accepted by the district court.
A full-text copy of the Court's Report and Recommendation dated
July 21, 2022, is available at https://tinyurl.com/zucdeusn from
Leagle.com.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2022. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
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re-mailing and photocopying) is strictly prohibited without prior
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Information contained herein is obtained from sources believed to
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The CAR subscription rate is $775 for six months delivered via
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are $25 each. For subscription information, contact
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