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C L A S S A C T I O N R E P O R T E R
Wednesday, August 10, 2022, Vol. 24, No. 153
Headlines
ADIKA INC: Faces Dorton Suit Over Unsolicited Telemarketing Calls
ALWAYS TLC: Lee Seeks to Recover OT Pay for Caregivers Under FLSA
AMERICAN DIRECT: Class Cert Scheduling & Case Mng't Order Entered
AMERICAN DIRECT: Order on Bids for Class Certifications Entered
APPLE INC: Face Portuguese Class Suit Over Anti-Competitive Scheme
AUSTRALIA: Class Settlement Payments Over Unlawful Scheme Discussed
AUTO CLUB: Court Narrows Claims in Moore Litigation
AVALONBAY COMMUNITIES: Filing of Class Status Bid Due Feb. 23, 2023
BEAUFORT, SC: Class Action Suit Over Body Cavity Search Certified
BP EXPLORATION: Cook Causation Testimony Excluded From Turner Suit
BP EXPLORATION: Wins Bid for Summary Judgment in Richardson Suit
BROOKSIDE, AL: Justice Dept. Backing Class Action vs. Town
BURGER KING: Seeks to Dismiss PFAS Class Action Lawsuit
CARBON 38: Dorton Files Suit Over Unsolicited Phone Calls
CELSIUS NETWORK: Goines Sues Over Loss From Celsius Loans
CINDY GILLESPIE: Court Dismisses Class Action w/o Prejudice
COLLECTION PROFESSIONALS: Initial Sched Order Entered in McGrady
DAIRY FARMERS: New Mexico Court Stays Discovery in Othart Suit
DEMET'S CANDY: S.D. New York Grants Bid to Dismiss Spurck Suit
DESH LAW: Bids to Dismiss & for Sanctions in Louis FDCPA Suit Nixed
EASTLAKE FOODS: Majewski Seeks Minimum, OT Wages Under FLSA, OMFWSA
EBATES PERFORMANCE: Fails to Pay Proper OT Wages, Jones Suit Says
ENERGY TRANSFER: Portnoy Reminds of Securities Class Action Lawsuit
ENOCHIAN BIOSCIENCES: Glancy Prongay Files Securities Fraud Suit
EXPERIAN INFORMATION: Shaked Sues for Inaccurate Credit Reporting
EXPRESS SCRIPTS: Loses Bid for Summary Judgment v. Perez
FEDERAL EXPRESS: Class Cert. Deadlines Extended in Weisfeld Suit
FICOSA NORTH: Fails to Pay Customer Techs' OT, Rigsby Suit Contends
FORD MOTOR: Canadian Court Dismisses Suit Over 2014 Ford Edge
GEICO GENERAL: Class Action Settlement Gets Initial Approval
GENERAL MOTORS: Sued as Flex Fuel Vehicles Can't Run on E85
GOBRANDS INC: Dorton Sues Over Unsolicited Telephonic Sales Calls
HANNAFORD BROS: Prinzo Seeks to Certify Class of Managers
HCA HEALTHCARE: Asheville, N.C. Sues Over Anticompetitive Scheme
HEALTH IQ: District Court Sends Dobbs TCPA Suit to Arbitration
HEALTHCARE REVENUE: Filing of Class Cert Bid Extended to August 29
HEWLETT-PACKARD: Class Action Claims Defect in HP AMD Computers
HOME PARTNERS: Faces Sewall Suit Over Illegal Lease Provisions
HONDA DEVELOPMENT: Tripoli Seeks Unpaid Wages Under FLSA, IMWL
HYUNDAI MOTOR: Faces Suit Over Vehicles' Missing Anti-Theft Devices
IC SYSTEM: Amended Scheduling Order Entered in Lahu Class Suit
INTERACTIVE EDUCATION: Class Cert. Bid Hearing Moved to Oct. 24
JOHNCOL INC: Fischer Sues Over Delivery Drivers' Unpaid Wages
JUAN DE LA CRUZ: Alvarado Sues Over Manual Laborers' Unpaid Wages
KIA MOTORS: Faces Suit Over Vehicles' Missing Anti-Theft Devices
KINDRED HEALTHCARE: Parrot Seeks Unpaid OT Wages Under FLSA, IWPS
KIRKLAND'S STORES: Miles Seeks to Stay Action Pending Appeal
KRIGER LAW: Almada Seeks Initial Approval of Class Settlement
LAKE COUNTY JAIL: Hearing on Class Cert Bid Set for Sept. 20
LOCKHEED MARTIN: Court Extends Class Cert. Discovery to Sept. 30
M PIZZA: McCumbee Seeks Minimum Wages for Drivers Under FLSA
MATRIX ABSENCE: Samanatha Seeks to Certify Class of Examiners
MCCARTHY BURGESS: Court Dismisses Rosenberg Amended Complaint
MDL 1917: DPPs Win Class Certification in CRT Antitrust Suit
META PLATFORMS: Ohio Selected as Lead Plaintiff in Class Action
MITSUI OSK: Could Face Class Action in Mauritius Over Oil Spill
NEBRASKA: Court Denies Bid to Certify Class in Hanes v. DCS
NIELSEN HOLDINGS: Settles Securities Class Action Suit for $73-Mil.
NISSAN NORTH: Initial Case Management Order Entered in Losapio
NURSEFINDERS LLC: Underpays Nursing Assistants, Walker Suit Says
PENNSYLVANIA: Cmmw. Court Affirms Arbitration Award in PSCOA v. DOC
PETSMART INC: Former Pet Groomer Files Suit Over Unlawful Scheme
POINT PARK: Court Extends Case Management Deadlines in Figueroa
PRAKASHSINGH PARMAR: Underpays Store Employees, Couch Suit Claims
PROVIDENCE ST. JOSEPH: Spencer Seeks Equal Access to Deaf Patients
PTC INC: Khan, et al., Seek Final Approval of Class Settlement
RAMIREZ J E DRYWALL: Pancheo Sues Over Unpaid Overtime Wages
RAYMOND JAMES: Opinions and Testimony of Douglas Schulz Excluded
REALPAGE INC: Agrees to Pay $9.73-M to Settle FCRA Claims
SAFE HOME SECURITY: Grochowski Files TCPA Suit in S.D. Florida
SAKS & COMPANY: Court Initially Approves Class Action Settlement
SESAME PLACE: Faces $25-Mil. Class Action Suit Over Discrimination
SHAW FLOORS: Luis Files ADA Suit in S.D. New York
SIMMONS BANK: Unilaterally Changes Loan Terms, Wexler Suit Says
SOCLEAN INC: Ciesla Suit Transferred to W.D. Pennsylvania
SOCLEAN INC: Cohen Suit Transferred to W.D. Pennsylvania
SOCLEAN INC: Harrell Suit Transferred to W.D. Pennsylvania
SOCLEAN INC: Humphress Suit Transferred to W.D. Pennsylvania
SOCLEAN INC: Lattimorre Suit Transferred to W.D. Pennsylvania
SOCLEAN INC: Perun Suit Transferred to W.D. Pennsylvania
SONY CORP: Trejo Files Suit Over Defective PlayStation 5 Consoles
SPRINGBONE PEARL: Hwang Files ADA Suit in S.D. New York
ST. CAMILLUS NURSING: Laskowski Files FLSA Suit in N.D. New York
STATE FARM: Settles Alabama Class Action Over Underpaid Claims
STATE MATERIAL: Hwang Files ADA Suit in S.D. New York
SUSAN B ANTHONY: Henderson Files TCPA Suit in D. Arizona
TALKSPACE INC: Faces Securities Fraud Class Action Suit
TD BANK: Hit With Class Action Over Balance Inquiry Fees
TENNESSEE-AMERICAN WATER: Faces Class Action Over Wager Outage
THS GROUP: Beavers Files TCPA Suit in D. South Carolina
ULTA SALON: Second Scheduling Order Entered in Jones Suit
UNITED AUTOMOBILE: Cedeno Files Suit in Fla. Cir. Ct.
UNITED SERVICES: Loses Judgment on Pleadings Bid in Thompson Suit
US BANK: Agrees to $37-Mil. Fine Over Unauthorized Accounts
VI-JON LLC: Macormic Seeks to File Suggestions Under Seal
VI-JON LLC: Macormic, et al., Seek to Certify Classes
VOYAGER 888: Bid for Conditional Cert for Notice Granted in Part
WATA INC: Knight RICO Suit Transferred to D. Colorado
WEBCORP INC: Faces Townson Suit Over Unsolicited Text Messages
WEST VIRGINIA: 4th Cir. Revives Child Welfare Services Class Suit
WHATNOT INC: Toro Files ADA Suit in S.D. New York
ZOOSK INC: Court Denies Bid to Certify Class in Flores-Mendez Suit
[*] U.S. SPAC-Related Class-Action Lawsuits on the Rise in 2022
*********
ADIKA INC: Faces Dorton Suit Over Unsolicited Telemarketing Calls
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HOPE DORTON, individually and on behalf of all others similarly
situated, Plaintiff v. ADIKA, INC., Defendant, Case No. 154409844
(Fla. 13th Jud. Cir. Ct., August 1, 2022) brings this class action
complaint against the Defendant alleging the Defendant of
violations of the Florida Telephone Solicitation Act.
The Plaintiff assert that the Defendant made a "telephonic sales
call" to his telephone number on or after July 1, 2021 in an
attempt to promote its goods and services. The Defendant allegedly
did not obtain the Plaintiff's prior express written consent to
receive such telephonic sales calls, which involved an automated
system for the selection or dialing of telephone numbers or the
playing of a recorded message when a connection is completed. Upon
information and belief, the Defendant has also caused similar
telephonic sales calls to be sent to individuals in Florida without
their prior express written consent, says the Plaintiff.
The Defendant's unsolicited telemarketing calls have allegedly
aggrieved the Plaintiff and other similarly situated individuals.
Thus, on behalf of herself and the Class members, the Plaintiff
seeks an injunction requiring the Defendant to cease all telephonic
sales calls made without express written consent. The Plaintiff
also seeks statutory damages, attorney's fees and court costs, and
other relief as the Court deems necessary.
Adika, Inc. 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
ALWAYS TLC: Lee Seeks to Recover OT Pay for Caregivers Under FLSA
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BRYAN LEE, individually And on behalf of others similarly situated
v. ALWAYS TLC, LLC d/b/a ALL ABOUT U, Case No. 2:22-cv-02351 (E.D.
La., July 27, 2022) seeks to recover unpaid overtime compensation
under the Fair Labor Standards Act.
The Plaintiff was employed by Defendant from October 2019 through
January 2022 as a direct caregiver who provided companionship
services in the homes of Defendant's clients. Plaintiff's hours
varied from week to week but he regularly worked more than 40 hours
a week.
The Plaintiff brings this action on behalf of himself and other
similarly situated current and former direct caregiver employees of
Defendant who provided companionship services.
The Defendant operates a home healthcare services business under
the fictitious name of All About U.[BN]
The Plaintiff is represented by:
Philip Bohrer, Esq.
Scott E. Brady, Esq.
BOHRER BRADY, LLC
8712 Jefferson Highway, Suite B
Baton Rouge, LA 70809
Telephone: (225) 925-5297
Facsimile: (225) 231-7000
E-mail: phil@bohrerbrady.com
scott@bohrerbrady.com
AMERICAN DIRECT: Class Cert Scheduling & Case Mng't Order Entered
-----------------------------------------------------------------
In the class action lawsuit captioned as JORDIN SCHMIDT,
individually and on behalf of all others similarly situated, v.
AMERICAN DIRECT FUNDING LLC, Case No. 8:22-cv-00873-FMO-DFM (C.D.
Cal.), the Hon. Judge Fernando M. Olguin entered a scheduling and
case management order regarding class actions and representative
actions, as follows:
1. Any stipulation or motion to October 26, 2022
amend as to any claims,
defenses and/or parties shall
be lodged/filed no later than:
All "Doe" defendants are to be October 26, 2022
identified and named on or
before:
2. All fact discovery shall be January 26, 2023
completed no later than:
3. All expert discovery shall be April 10, 2023
completed by:
The parties must serve their February 9, 2023
Initial Expert Witness
Disclosures no later than:
Rebuttal Expert Witness March 9, 2023
Disclosures shall be served
no later than:
4. The parties shall complete January 26, 2023
their settlement conference
before a private mediator no
later than:
5. Any motion for class May 10, 2023
certification shall be
filed no later than:
American Direct offers small business loans.
A copy of the Court's order dated Aug. 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3dbymiX at no extra charge.[CC]
AMERICAN DIRECT: Order on Bids for Class Certifications Entered
---------------------------------------------------------------
In the class action lawsuit captioned as JORDIN SCHMIDT v. AMERICAN
DIRECT FUNDING LLC, Case No. 8:22−cv−00873−FMO−DFM (C.D.
Cal.), the Hon. Judge Fernando M. Olguin entered an order regarding
motions for class certifications American Direct Funding LLC, as
follows:
1. Joint Brief
The parties shall work cooperatively to create a single,
fully integrated joint brief covering each party's
position, in which each issue (or sub-issue) raised by a
party is immediately followed by the opposing
party's/parties' response.
2. Citation to Evidence
"All citation to evidence in the joint brief shall be
directly to the exhibit and page number(s) of the
evidentiary appendix, or page and line number(s) of a
deposition.
3. Unnecessary Sections
The parties need not include a "procedural history"
section, since the court will be familiar with the
procedural history.
4. Page Limitation
Each separately-represented party shall be limited to 25
pages, exclusive of tables of contents and authorities.
5. Evidentiary Objections
All necessary evidentiary objections shall be made in the
relevant section(s) of the joint brief.
6. Schedule for Preparation and Filing of Joint Brief
The briefing schedule for the joint brief shall be as
follows:
A. Meet and Confer
In order for a motion for class certification to be
filed in a timely manner, the meet and confer must take
place no later than 35 days before the deadline for
class certification motions set forth in the Court's
Case Management and Scheduling Order.
B. No later than seven days after the meet and confer, the
moving party shall personally deliver or e-mail to the
opposing party an electronic copy of the moving party's
portion of the joint brief, together with the moving
party's portion of the evidentiary appendix.
7. Supplemental Memorandum
After the joint brief is filed, each party may file a
supplemental memorandum of points and authorities no later
than 14 days prior to the hearing date.
American Direct Funding offers small business loans.
A copy of the Court's order dated Aug. 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3zEPPHY at no extra charge.[CC]
APPLE INC: Face Portuguese Class Suit Over Anti-Competitive Scheme
------------------------------------------------------------------
ICLG.com reports that Portuguese collective-competition filings are
the latest in a slew of claims over App Store and Google Play
Store's "anti-competitive and excessive" commissions.
Two new class actions against Apple and Google have been filed in
Portugal over alleged anti-competitive conduct in respect of the
tech giants' sale of apps and in-app purchases via their
proprietary app stores.
Professor Fabrizio Esposito, an assistant professor in private law
at the NOVA School of Law, whose research focuses on competition
and consumer law in European Union digital markets, is seeking
compensation of up to EUR 198 million on behalf of 6.5 million
Portuguese businesses and consumers who have made purchases on
Apple products or devices which run on Google's Android operating
system. [GN]
AUSTRALIA: Class Settlement Payments Over Unlawful Scheme Discussed
-------------------------------------------------------------------
Poppy Johnston of Yahoo! Finance (Australia) reports that thousands
of Centrelink recipients are yet to get the additional compensation
they are owed through Gordon Legal's robodebt class action.
Under the scheme, Centrelink recipients were found to be
automatically issued debt notices based on a flawed
income-averaging metric.
The scheme was labelled "punitive" and "unfair", with some victims
reporting long-term mental health issues as a result.
A $1.2 billion settlement was reached, which saw $400 million in
unlawful debts wiped and $720 million in debts repaid.
There was also another $112 million in compensation planned to
account for interest that people could have earned on the debt
repayments, which has not yet been paid.
The majority of settlement payments range between $50 and $300,
with some eligible members only likely to get small sums less than
$10.
Gordon Legal partner Andrew Grech said most of the refunds had been
paid to eligible group members, but the $112 million additional
compensatory payments were yet to be made.
Services Australia initially said this sum would be distributed by
March 2022, which was then pushed back to June.
The funds still haven't been paid.
A spokesperson from Services Australia said the department was
"working hard" to speed up the process.
"There are a number of steps in the settlement-distribution-scheme
process that need to be completed before we can start making
payments," the spokesperson said.
"We're working hard to provide payments as soon as possible."
Scroll back up to restore default view.
The final deadline for the payments is September 17.
"Given its performance to date, Gordon Legal has no confidence that
will be met," Grech said.
If you are eligible for this payment, you will have received a
letter in November 2021, notifying you of your debt category.
The settlement will be paid into the bank account you already
receive Centrelink payments through, or the bank account you gave
Centrelink for the refund portion. [GN]
AUTO CLUB: Court Narrows Claims in Moore Litigation
---------------------------------------------------
In the case, NANCY MOORE, et al., Plaintiffs, v. AUTO CLUB
SERVICES, et al., Defendants, Case No. 19-10403 (E.D. Mich.), Judge
Denise Page Hood of the U.S. District Court for the Eastern
District of Michigan, Southern Division, grants in part and denies
in part the Defendants' Motion to Dismiss Plaintiffs' First Amended
Class Action Complaint.
Judge Hood grants the Defendants' Motion to Dismiss Count I of
Plaintiffs' Amended Complaint, specifically, the Plaintiff's claim
that the Defendants violated Subsection 3107(1)(a) of the Michigan
Automobile No-Fault Insurance Act. He also grants the Defendants'
Motion to Dismiss the Breach of Contract and Breach of Implied
Covenant of Good Faith and Fair Dealings in Count II.
Judge Hood denies the Defendants' Motion to Dismiss Plaintiffs'
Unjust Enrichment claim at Count III. He grants the Defendants'
Motion to Dismiss Plaintiffs' Intentional or Tortious Interference
with Contractual Relationship at Count V. He further grants the
Defendants' Motion to Dismiss Civil Conspiracy at Count VI.
Judge Hood denies as moot the Defendant's Motion for
Reconsideration.
The Plaintiffs filed a 28 U.S.C. Section 1332(d)(2) Class Action
Complaint on Feb. 8, 2019, alleging the Defendants underpaid the
proper amount of attendant care benefits owed to the members of the
class under Subsection 3107(1)(a) of the Michigan Automobile
No-Fault Insurance Act. On April 18, 2019, the Defendants
collectively filed a Rule 12(b)(6) Motion to Dismiss. The Initial
Motion was fully briefed.
The Court held a July 24, 2019 hearing regarding the Initial Motion
to Dismiss, at which the Plaintiffs conceded the best course of
action would be to file an amended complaint, except that the Court
should address two issues:
1. Whether the One Year Back Rule barred claims for damages
incurred prior to Feb. 8, 2018 and was not subject to tolling; and
2. Whether Count IV should be dismissed because Michigan does
not recognize a claim for bad faith breach of contract.
The parties argued those two issues at the July 24, 2019 hearing,
and the Court took them under advisement. The Court also allowed
the Plaintiffs to file an amended complaint.
On Aug. 19, 2019, the Plaintiffs timely filed a First Amended Class
Action Complaint, which contained the four counts asserted in the
Original Complaint, plus two new counts: (a) Count I - Violations
of the Act; (b) Count II - Breach of Contract and Breach of Implied
Covenant of Good Faith and Fair Dealings; (c) Count III - Unjust
Enrichment; (d) Count IV - Bad Faith Breach of Contract; (e) Count
V - Intentional or Tortious Interference with Contractual
Relationship (by Defendants Auto Club Group and Auto Club Services,
the Defendant Non-insurers); and (f) Count VI - Civil Conspiracy
(against all the Defendants).
On Sept. 16, 2019, the Defendants filed a Motion to Dismiss
Plaintiffs' First Amended Class Action Complaint. The Second Motion
has been fully briefed, and a hearing was held on Nov. 13, 2019. On
May 31, 2020, the Court granted the Initial Motion with respect to
Count IV but denied the One Year Back Rule argument.
The three named Plaintiffs have sued on behalf of themselves and
request that they be made representatives of a class. The
Plaintiffs currently have no-fault personal injury protection
("PIP") claims filed with Defendants and are receiving attendant
care benefits. All the Plaintiffs have been receiving these
benefits at least since 2005. Each of their attendant care benefits
are being used to pay for family provided attendant care. All
allegations in the Amended Complaint are based on the Defendants'
alleged "systematic underpayment of family provided/non-agency
provided attendant care benefits through the use of a series of
reports ("P&M Surveys") the Defendants falsely claimed were valid
surveys of commercial agency payment rates for attendant care
providers."
The Plaintiffs' PIP claims have been adjusted by the Defendants.
The Plaintiffs allege the Defendants relied on the P&M Surveys to
determine class benefits for their family provided attendant care
services and adjusted the Plaintiffs' claims. They allege the
Defendants' use of the P&M Surveys was improper and injured the
Plaintiffs by paying less money than appropriate for their family
provided attendant care benefits.
Litigation and discovery by the Defendants in an (unidentified)
prior case allegedly revealed the P&M Surveys were created under
the direction of a lawyer and Vice President at AAA. The creator of
the P&M Surveys testified in that prior case, allegedly revealing
the P&M Survey "lacked valid statistical authority." Other
testimony (by the director of casualty claims for AAA) allegedly
acknowledged that the rates in the P&M Surveys were not adjusted
after 2011 and that AAA used previous P&M Surveys to determine
class benefits.
The Plaintiffs seek to establish a representative class under FRCP
23(a) for all individuals who received attendant care benefits from
Defendants for the Class Period either at: (1) a "home health aide
rate;" or (2) a "higher than a home health aide rate." They also
bring suit on behalf of the sub-class of individuals who received
benefits from Defendants during the Class Period while those
individuals resided in states that provided for bad faith claims.
The Plaintiffs have pleaded facts sufficient to meet the
requirements of a class action suit as outlined by FRCP 23(a) and
FRCP 23(b).
The "Class Period" covered by the claim is in dispute. The
Plaintiffs allege the Defendants committed fraud by concealing
their use of P&M Surveys. They assert that, because of the alleged
fraudulent action by the Defendants, Michigan's no-fault one-year
back rule should be tolled for two years with respect to the
Plaintiffs' claims.
The Defendants argue that all claims should be dismissed pursuant
to Federal Rule of Civil Procedure 8 because the Plaintiffs'
Amended Complaint fails to provide fair notice of the factual basis
of relief sought by the Plaintiffs. They contend that the
Plaintiffs failed to "identify each Defendants' role in the claims
handling process" or make "allegations otherwise distinguishing
them" from one another. They rely on two decisions where courts
required plaintiffs to distinguish between defendants.
The Plaintiffs respond that their Amended Complaint meets the
requirements of Rule 8 because it distinguishes between the
individual Defendants and their respective roles. They state that
"discovery has not yet begun" and acknowledge that "details as to
who did what and when still need to be explored." They assert that
the "Defendants know exactly what their relationship is with each
class member and each Defendant." The Plaintiffs state that the
Defendants "approved no-fault claims" for the Plaintiffs and the
"Defendants themselves acknowledge the market place has become
accustomed to referring to them as AAA."
Judge Hood holds that the Plaintiffs have met the requirements of
Rule 8, pleaded facts that show the plausibility of the claims, and
properly placed the Defendants on notice of the allegations against
them. She finds that although the Plaintiffs have not pleaded which
of the three identified insurance companies holds their individual
policies, they have pleaded facts in the Amended Complaint that
allow the Court to make a reasonable inference that Defendants are
liable. She also finds that the Plaintiffs have adequately pleaded
entitlement to relief. Their allegations allow for a reasonable
inference that they're entitled to relief based on the injury they
suffered due to improper payment at the Defendant Non-insurers'
direction.
Article III Standing
The Defendants argue that the Amended Complaint should be dismissed
for failure to demonstrate Article III standing. To establish
Article III standing, a Plaintiff must show: "(1) [he/she] has
suffered an 'injury in fact' that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged
action of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision."
The Defendants assert the Plaintiffs have not demonstrated that
their injury is fairly traceable to Defendants because they have
not pleaded: (a) which individual insurer holds each individual
Plaintiff's policy; or (b) the specific Defendants that underpaid
Plaintiffs' attendant care benefits. Defendants rely on rulings in
three cases where the court either allowed the plaintiffs to amend
their complaint or dismissed defendants because the plaintiffs had
not pleaded an injury fairly traceable to each of the defendants'
specific conduct.
The Plaintiffs maintain that the Amended Complaint properly
establishes Article III standing because they identified which
three Defendants were insurers and alleged that the Defendant
Insurers denied reasonable care benefits as a result of using the
P&M Surveys. They state their injuries are traceable to the
Defendant Non-insurers because the Defendant Non-insurers either
own or operate the three Defendant Insurers. The Plaintiffs argue
that ownership and operational control of the Defendant Insurers
alone demonstrates Article III standing for the Defendant
Non-insurers. They also assert that the Amended Complaint
demonstrates standing by using court testimony (from another case
in which Defendants were sued) to identify AAA leaders by name to
show that those leaders directed the creation and implementation of
P&M Surveys to cause injury to the Plaintiffs.
Judge Hood is not persuaded that the Amended Complaint should be
dismissed due to a lack of Article III standing. She says the
Defendants' argument that the Plaintiffs have not met Article III
for failing to identify the specific insurer that holds each
Plaintiff's claim or underpaid attendant care benefits is not
consistent with the binding law in the Sixth Circuit. The
Plaintiffs have pleaded an injury fairly traceable to the
Defendants under the class action exception rule acknowledged by
the Sixth Circuit. Even the case law cited by the Defendants
supports a finding that the Plaintiffs' injuries are fairly
traceable to the Defendants.
Judge Hood finds the Plaintiffs have pleaded facts that establish
contractual obligations among all Defendants. If the Plaintiffs in
the current case had to establish standing with regard to each
defendant, as the Defendants suggest, the exception would be
rendered meaningless. She concludes that the Plaintiffs have met
the requirements of Article III and pleaded facts that establish
standing.
Fraudulent Concealment
With respect to Count I, the Defendants argue the Plaintiffs cannot
avoid the one-year-back rule based on MCL 600.5855 because the
Plaintiffs' fraudulent concealment theory fails as a matter of law.
They contends that the Plaintiffs' claims: (1) were discoverable;
(2) are based on the Defendants fraudulently concealing P&M Surveys
that the Defendants "did not have a duty to disclose;" and (3) are
based on alleged actions by the Defendants prior to injury.
Judge Hood finds that (i) the Plaintiffs sufficiently pleaded that
"there was no means for them to discover this fraud and artifice
because the Defendants made a corporate decision to conceal it;
(ii) the Plaintiffs sufficiently pleaded that "there was no means
for the Plaintiffs to discover this fraud and artifice because the
Defendants made a corporate decision to conceal it; and (iii) the
Plaintiffs have not satisfied MCL 600.5855 because they have not
pleaded an affirmative act following the injury, and the one-year
back rule applies in the case.
FRCP 9(b)
With respect to Count I, the Defendants argue Plaintiffs failed to
plead fraudulent concealment with the particularity required under
FRCP 9(b). The Plaintiffs argue they sufficiently pleaded
fraudulent concealment with the necessary particularity but request
the ability to amend their Amended Complaint if the Court finds the
Amended Complaint lacks particularity.
Judge Hood concludes that the Plaintiffs have not met the
particularity required by Rule 9(b), such that they cannot toll
their claims based on MCL 600.5855. He says, the Plaintiffs have
requested that they be allowed to amend their pleadings, but he
notes that the Plaintiffs already was given that opportunity and
did not do so. Unless the Plaintiffs can allege a specific time and
place that the Defendants fraudulently concealed, any future
amendments would be futile with respect to satisfying the
requirements of Rule 9(b).
Accordingly, if the Plaintiffs desire to amend their claim for
fraudulent concealment, the Court will require the Plaintiffs to
file a motion for leave to file an amended claim for fraudulent
concealment. Any such motion should be limited to setting forth
exactly how any such amended claim would satisfy the requirements
of Rule 9(b). At this time, however, Judge Hood grants the
Defendants' motion with respect to Count I and dismisses Count I.
Implied Covenant of Good Faith
The Defendants argue that the Plaintiffs' breach of good faith and
fair dealings claim fails because it is not recognized by Michigan
law. It is well-established that "Michigan does not recognize a
separate cause of action for breach of the implied covenant of good
faith and fair dealing. The Defendants contend that the no-fault
"act and insurance contract [that] establishes the insured's
rights" does not place unilateral discretion of performance on the
Defendants.
The Plaintiffs assert that the Defendants had unilateral discretion
because both the Plaintiffs and the members of the Plaintiff Class
submitted no-fault claims for family provided attendant care
benefits and "once a claim was submitted, approved and paid, it was
Defendant insurance carriers alone who were responsible to
calculate the hourly rate to pay those claims." They also argue
that they pleaded "the basis to find that Defendants held the
requisite unilateral discretion to determine the hourly rates used
to pay benefits."
Judge Hood grants the Defendants' motion to dismiss the Plaintiffs'
implied covenant of good faith and fair dealing claim. He says, the
Plaintiffs have not pleaded what specifically gives Defendants the
unilateral discretion of performance required by Michigan law. The
Plaintiffs argue paragraphs 46-47 of the Amended Complaint
establishes the unilateral duty of the Defendants, but the only
legal support provided by the Plaintiffs for the reference is
Williams. Although Williams provides that an insurer can
investigate a claim after insurers receive the claim, it does not
establish that the "Defendants held the requisite unilateral
discretion" required by Michigan law for an implied covenant of
good faith and fair dealing claim.
Unjust Enrichment
The Defendants contend the Plaintiffs failed to allege the elements
of an unjust enrichment claim against any of the Defendants and
that "it is improper for the Plaintiffs to plead a claim for unjust
enrichment, even in the alternative, where there is an express
written contract which governs the parties' conduct." The
Plaintiffs agree that the unjust enrichment claim is not viable
with respect to the Defendant Insurers because there are express
written contracts between the Plaintiffs and the Defendant
Insurers.
Based on the facts and allegations in the Amended Complaint, it is
reasonable for Judge Hood to infer that the Defendant Non-insurers
received a financial benefit (amounting to unjust enrichment)
through their ownership of the Defendant Insurers. As there is no
contract between the Plaintiffs and the Defendant Non-insurers, an
unjust enrichment claim is an appropriate alternative pleading for
Plaintiffs. For these reasons, Judge Hood concludes that the
Plaintiffs' unjust enrichment claim is sufficiently pleaded as it
pertains to the Defendant Non-insurers.
Tortious Interference with Contractual Relationship
In Count V, the Plaintiffs allege the Defendant Insurers breached
their contract with the Plaintiffs (as set forth in Count I)
because the Defendant Non-Insurers "unjustly instigated the breach
of contract by the Defendant Non-Insurers with the Plaintiffs
without justification." The elements of tortious interference with
a contract are: (1) the existence of a contract; (2) a breach of
the contract; and (3) an unjustified instigation of the breach by
the defendant.
The Defendants argue that the Plaintiffs' claim fails as a matter
of law because they have alleged that they had a contractual
relationship with one or more of the Defendant Insurers, all of
whom are part of the same corporate family as the Defendant
Non-insurers. The Plaintiffs concede that, if a defendant shows
that it is affiliated with one of the parties to the contractual
agreement, that defendant is ordinarily entitled to dismissal.
According to their allegations, Defendant Auto Club Services is
wholly-owned by Defendant Auto Club Group, and Defendant Auto Club
Services is the Attorney-in-Fact for the Defendant Insurers.
Based on the foregoing allegations, Judge Hood finds the Plaintiff
has alleged that Defendant Auto Club Services is an agent of the
Defendant Insurers and that Defendant Auto Club Group is the parent
of Defendant Auto Club Services. There are no allegations that
specify how or why one or both of the Defendant Non-insurers
"utilized 'wrongful means' or `acted with an improper purpose.'"
Accordingly, Judge Hood should find that Defendants are entitled to
dismissal of the tortious interference of contractual relationship
claim.
Civil Conspiracy
In Count VI, the Plaintiffs allege that all of the Defendants
conspired to: "(1)(a) misrepresent to Plaintiffs and the class that
the Survey described in the preceding paragraphs was an actual
survey knowing it was not a survey and did not accomplish what
Defendants purport, (b) misrepresent that the Survey was a proper
evaluation of No-Fault benefits, (c) misrepresent that the Survey
was outdated, and (d) instruct upper Management to hide from
adjusters at the Auto Club Insurance Group, MemberSelect Insurance
Company, and Freemont Insurance Company the versions of the Survey
that provided for higher hourly rates, (2) entice Plaintiffs and
the class into accepting underpayment of benefits, (3) convert
Plaintiffs funds for their own use and benefit as set forth in this
Amended Complaint, and (4) interfere with the contractual
relationship between Plaintiffs and [Auto Club Insurance Group,
MemberSelect Insurance Company, and Freemont Insurance Company]."
Judge Hood finds that the civil conspiracy claim should be
dismissed for two reasons. First, "a claim for civil conspiracy may
not exist in the air; rather, it is necessary to prove a separate,
actionable, tort." Second, the Defendants, as part of the same
corporate family, cannot be liable of conspiracy where there is no
third-party involved. For the reasons stated, Judge Hood dismisses
the Plaintiffs' civil conspiracy claim (Count VI).
A full-text copy of the Court's July 20, 2022 Order is available at
https://tinyurl.com/2d6uzzmv from Leagle.com.
AVALONBAY COMMUNITIES: Filing of Class Status Bid Due Feb. 23, 2023
-------------------------------------------------------------------
In the class action lawsuit captioned as CHRISTINA WILLIAMS, as an
individual and on behalf of all others similarly situated, v.
AVALONBAY COMMUNITIES, INC., et al., Case No. 2:22-cv-03933-FLA-PLA
(C.D. Cal.), the Hon. Judge Fernando L. Aenlle-Rocha entered an
order regarding schedule of pretrial and trial dates, trial
requirements, and conduct of attorneys and parties, as follows:
-- Trial February 20, 2024
-- Final Pretrial Conference, Feb. 2, 2024
Hearing on Motions in Limine:
-- Last Date to Hear Motion to Nov. 18, 2022
Amend Pleadings or Add Parties:
-- Last Date to Hear Motion to Nov. 18, 2022
Amend Pleadings or Add Parties:
-- Deadline to file and serve Feb. 23, 2023
Motion for Class Certification:
-- Deadline to file and serve April 6, 2023
Opposition to Motion for
Class Certification:
-- Deadline to file and serve May 18, 2023
Reply Brief in support of
Motion for Class
Certification:
-- Last Date to Hear Motion June 9, 2023
for Class Certification:
-- Fact Discovery Cut-Off: Nov. 3, 2023
-- Expert Disclosure (Initial): Oct. 13, 2023
-- Expert Disclosure (Rebuttal): Oct. 27, 2023
-- Expert Discovery Cut-Off: Nov. 17, 2023
AvalonBay is a publicly traded real estate investment trust that
invests in apartments.
A copy of the Court's order dated Aug. 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3SodQvs at no extra charge.[CC]
BEAUFORT, SC: Class Action Suit Over Body Cavity Search Certified
------------------------------------------------------------------
Andrew Davis of WSAV reports that a lawsuit against the Beaufort
County Detention Center in Beaufort, South Carolina, that started
with just two women could soon grow by hundreds, possibly even
thousands.
Cheryl Munday and Margaret Devine each say they were humiliated
after their arrests for DUI, not just because they were picked up
by highway patrol, but because of what happened after, inside the
jail.
In their lawsuit first filed in Beaufort County court, each woman
details what they call "degrading and unnecessary body cavity
searches" by jail officers.
The lawsuit filed against the Beaufort County Detention Center
leaders and unnamed guards from the jail is based on practices
inside the jail from 2015 to 2020.
Munday says as she was being booked in 2018 one of the officers
told her "you look great." Then she was told she was subject to a
strip search, visual body cavity search, and full body pat down.
She says during that search a jail officer "grabbed her crotch with
great force," assaulted her, and fondled her. She was also
"required to bend over and manually spread her buttocks."
Munday remembers the guard, who was female, telling her "this
facility does not condone rape." Munday writes in the suit "the
whole time I was thinking this feels a lot like rape to me."
All this time the suit claims the door to the room she was in
"remained open so that any passerby could peer in" and see her
naked.
Munday claims treatment was far from equal. The suit claims after
her search she watched a male detainee only get patted "from the
knees down." Guards "did not search his groin or buttocks".
No body cavity search.
She adds that the man she saw was handed jail clothes and allowed
to change in another room.
Devine says after her arrest she was taken to a shower stall and
required to remove her clothes. The shower stall was in "so that
passers-by were able to see in."
When she was nude, Devine claims she had to "turn around, face a
wall and bend over from the waist so that her backside and
genitalia were fully exposed." Then she was ordered to cough.
The guards then ordered her to take a shower while they watched.
Then told to "cough louder and harder," and then forced to shower
again "making sure to wet her hair completely" the second time.
The county has changed policy as of 2020 to make sure both sexes
are equally treated. They made this comment about the suit.
"The presence of contraband in the Beaufort County Detention Center
poses not just a risk not only to our inmates but to our detention
officers. This lawsuit we will address accordingly," said Chris
Ophardt, Beaufort County PIO.
Robert Metro, of Bauer and Metro law firm in Bluffton and Hilton
Head, who is representing the women, in this case, says the
county's numbers don't back up its claims.
He quotes the Detention Center's own "Year End Reports for Beaufort
County Detention Center" that in 2010-12 and 2015 that "Defendant
conducted 18,402 "shakedowns" of inmates' cells prior to adoption
of the strip-search practice at issue this case - even using K-9
drug dogs on a regular basis - and found no serious contraband."
The DUI charges against Munday and Devine were eventually dropped.
Metro has now gotten this suit certified as a class action lawsuit
in federal court. That means any woman who felt they were violated
in jail during that period from 2015 to 2020 can join the suit.
Metro tells News 3 that number could be anywhere from 3,000 to
5,000 women who were booked through the system in that time.
Already he adds that several other women have signed on to the
case. They could each be in line for monetary damages if there is a
settlement or a Judge rules in favor of their lawsuit. [GN]
BP EXPLORATION: Cook Causation Testimony Excluded From Turner Suit
------------------------------------------------------------------
In the case, GREGORY SCOTT TURNER v. BP EXPLORATION & PRODUCTION
INC., ET AL., Civil Action No. 17-3225 (E.D. La.), Judge Lance M.
Africk of the U.S. District Court for the Eastern District of
Louisiana grants:
(i) Defendants BP Exploration & Production, Inc.; BP America
Production Co.; BP p.l.c.; Halliburton Energy Services,
Inc.; Transocean Deepwater, Inc; Transocean Holdings,
LLC; Transocean Offshore Deepwater Drilling, Inc.;
Transocean, Ltd.; and Triton Asset Leasing GmbH's motion
in limine to exclude the opinions of the Plaintiff's
medical causation expert, Dr. Jerald Cook; and
(ii) BP's a motion for summary judgment.
The instant action is a "B3" case arising out of the 2010 Deepwater
Horizon oil spill in the Gulf of Mexico. B3 cases involve "claims
for personal injury and wrongful death due to exposure to oil
and/or other chemicals used during the oil spill response (e.g.,
dispersant)" -- In re Oil Spill by Oil Rig "Deepwater Horizon" in
Gulf of Mexico, on Apr. 20, 2010, No. MDL 2179, 2021 WL 6053613, at
*10 (E.D. La. Apr. 1, 2021) (Barbier, J.).
In the course of the MDL proceedings, Judge Barbier approved the
Deepwater Horizon Medical Benefits Class Action Settlement
Agreement, which included a Back-End Litigation Option ("BELO")
permitting certain class members to sue the defendants for
later-manifested physical conditions. The B3 plaintiffs, by
contrast, either opted out of the class action settlement agreement
or were excluded from its class definition. To prevail on their
claims, the "B3 plaintiffs must prove that the legal cause of the
claimed injury or illness is exposure to oil or other chemicals
used during the response."
Turner alleges that from June through November 2010 he was exposed
to both oil and dispersants as a resident of Mississippi and as a
clean-up worker in multiple locations along the coast of Alabama
and Mississippi following the Deepwater Horizon oil spill.
According to him, as a result of this exposure, he suffers from,
among other things, respiratory problems, vision problems, myalgia,
fatigue, dizziness, and headaches. Turner filed the instant civil
action, seeking a jury trial with respect to his claims, which
include negligence under general maritime law; gross negligence
under general maritime law; negligence per se under general
maritime law, state and federal law; claims under Louisiana
nuisance law; negligence, gross negligence and/or failure to warn
under state law; breach of contract; and battery.
To support his claim that exposure to oil and dispersants caused
his health problems, Turner provides a medical causation analysis
completed by Cook. Cook is a retired Navy physician, a fellow of
the American College of Occupational and Environmental Medicine,
and is board certified in occupational medicine, public health, and
general preventative medicine.
Cook's report utilized a "general causation approach to determine
if a reported health complaint can be from the result of exposures
sustained in performing cleanup work" and to assess "the likelihood
that occupational exposures that occurred during work in oil spill
cleanup caused disease, contributed to the development of disease,
affected the severity of disease, or exacerbated pre-existing
disease that workers have associated with potential exposures." It
is organized into five chapters.
The first chapter outlines Cook's qualifications, which are not
challenged. The second chapter provides background on the Deepwater
Horizon oil spill. The third chapter describes Cook's methodology.
The fourth chapter recounts the history of oil spills and related
clean-up efforts and analyzes prior studies on the health effects
associated with exposure to oil.18 These studies include the
National Institute for Occupational Safety and Health's 2011 final
health hazard evaluation ("HHE") report on the Deepwater Horizon
oil spill, the Deepwater Horizon oil spill Coast Guard cohort
study, and the Gulf Long-Term Follow-Up study ("GuLF Study").
Finally, the fifth chapter contains Cook's opinions on general
causation for four categories of medical conditions: (1)
respiratory conditions; (2) dermal conditions; (3) ocular
conditions; and (4) cancers. Ultimately, Cook concludes that a
"general causation analysis indicates that these acute and chronic
respiratory, dermal, ocular conditions can occur in individuals
exposed to crude oil, including weathered crude oil, during oil
spill response and cleanup work."
The Defendants assert that Cook's general causation opinion should
be excluded because it is unreliable. Specifically, they argue,
among other things, that Cook's report failed to identify a harmful
dose of exposure to any particular chemical.
Judge Africk holds that the Cook report in the present case suffers
from the one of the same flaws which the Court identified in an
earlier version of Cook's report excluded in Murphy v. BP Expl. &
Prod. Inc., No. 13-1031, 2022 WL 1460093 (E.D. La. May 9, 2022),
and Novelozo v. BP Expl. & Prod. Inc., No. 13-1033, 2022 WL 1460103
(E.D. La. May 9, 2022), insofar as Cook fails to identify a
particular chemical and corresponding dose to which Turner was
exposed. As the Court noted in Novelozo, "scientific knowledge of
the harmful level of exposure to a chemical, plus knowledge that
the plaintiff was exposed to such quantities, are minimal facts
necessary to sustain the plaintiffs' burden as to general causation
in a toxic tort case."
Several sections of the Court have subsequently concluded that
Cook's testimony must be excluded due to this failure to include
harmful level of exposure in his report. The availability of this
data "casts doubt on the assertion that there is a lack of
monitoring data associated with the spill." Hence, the causation
testimony of Cook is excluded.
Having determined that Cook's report should be excluded, Judge
Africk now turns to the Defendants' motion for summary judgment.
The issue of general causation is a necessary element of the
Plaintiff's claims against the Defendants. Cook is Turner's sole
expert on general causation. With Cook's opinion on general
causation now excluded, Turner lacks expert testimony with respect
to general causation. As a result, Turner has failed to present a
genuine issue of material fact with respect to his claims that his
injuries were caused by exposure to oil and dispersants.
Accordingly, the Defendants are entitled to summary judgment.
Turner's claims are dismissed with prejudice.
A full-text copy of the Court's July 27, 2022 Order & Reasons is
available at https://tinyurl.com/3benpt9a from Leagle.com.
BP EXPLORATION: Wins Bid for Summary Judgment in Richardson Suit
----------------------------------------------------------------
In the case, WILLIE L. RICHARDSON, JR. v. BP EXPLORATION AND
PRODUCTION, INC., ET AL. SECTION "B"(5), Civil Action No. 19-11693
(E.D. La.), Judge Ivan L.R. Lemelle of the U.S. District Court for
the Eastern District of Louisiana grants Defendants BP Exploration
& Production, Inc., BP America Production Co., and BP p.l.c.'s
motion for summary judgment.
The instant action is a "B3" case arising out of the 2010 Deepwater
Horizon oil spill in the Gulf of Mexico. B3 cases involve "claims
for personal injury and wrongful death due to exposure to oil
and/or other chemicals used during the oil spill response (e.g.,
dispersant)" -- In re Oil Spill by Oil Rig "Deepwater Horizon" in
Gulf of Mexico, on April 20, 2010, MDL No. 2179, 2021 WL 6053613,
at *9 (E.D. La. Apr. 1, 2021).
The Plaintiff's case was originally part of the multidistrict
litigation pending before Judge Carl J. Barbier. During the MDL
proceedings, Judge Barbier approved the Deepwater Horizon Medical
Benefits Class Action Settlement Agreement, which included a
Back-End Litigation Option ("BELO") permitting certain class
members to sue BP for later-manifested physical conditions. The B3
plaintiffs, by contrast, either opted out of the class action
settlement agreement or were excluded from its class definition.
Plaintiff Richardson was a member of the class covered by the
Medical Settlement, but opted out of it. He filed suit against the
Defendants on July 15, 2019, alleging negligence, gross negligence,
negligence per se, battery, and a Louisiana Medical Monitoring
claim. Specifically, he alleges he was injured due to exposure to
oil, dispersants, and/or other hazardous chemicals while employed
by Plant Performance Services, LLC as a clean-up worker from June
to July 2010. As a result of his exposure, he alleges that he
suffered the following injuries: "numbness from his knees to feet,
headaches, severe sinus problems, loss of appetite, redness of the
eyes, constant tearing, chronic cough, nosebleeds, constant sore
throat, erectile dysfunction, diarrhea, back, joint, and muscle
pain, seizures, moodiness, nervousness, rashes, and itching of
skin."
To date, the Plaintiff has produced no expert report to prove
causation exists between his exposure and the injuries he alleges.
Originally, his expert report was due on Jan. 28, 2022. The Court
granted his motion to extend expert report deadlines on March 8,
2002, extending the prior deadline to March 15, 2022. The
Defendants then filed the instant motion for summary judgment on
March 16, 2022.
On April 11, 2022, the Plaintiff filed a motion to continue, which
the Court granted in part on April 25, 2022. In its Order, the
Court directed him to submit an expert report by June 24, 2022, and
subsequently, to submit a response to the Defendants' motion for
summary judgment no later than 20 days after receipt of that expert
report. Even if he only received his expert report on June 24,
2022, the last day he could have timely filed a response to the
Defendants' motion for summary judgment was July 14, 2022.
Judge Lemelle states that B3 plaintiffs must prove that the legal
cause of the claimed injury or illness is exposure to oil or other
chemicals used during the response." The district court must
determine: (1) whether there is general causation and (2) if it
concludes there is admissible general causation evidence, whether
there is specific-causation evidence. General causation is whether
a substance can cause a particular injury or condition in the
general population, while specific causation is whether a substance
causes a particular individual's injury.
The Plaintiff has failed to produce expert testimony establishing
general causation, which is required by the Fifth Circuit in toxic
tort cases. He has not provided an expert report or response to the
Defendants' motion for summary judgment. The deadline to produce an
expert report was June 24, 2022 and the deadline to respond to the
instant motion was, at the latest, July 14, 2022. Without expert
testimony on general causation, Judge Lemelle concludes that the
Plaintiff has failed to present a genuine issue of material fact
with respect to his claims that alleged injuries were caused by
exposure to toxins and oil dispersants.
A full-text copy of the Court's July 27, 2022 Order & Reasons is
available at https://tinyurl.com/9kxmdnmu from Leagle.com.
BROOKSIDE, AL: Justice Dept. Backing Class Action vs. Town
----------------------------------------------------------
Scott Shackford, writing for reason.com, reports that the
Department of Justice has submitted a letter expressing interest
and support in a class-action lawsuit against a small Alabama town
that drew national attention for turning to shady police stops and
fines to jack up municipal revenue by more than 600 percent in two
years.
When we last took note of Brookside, Alabama, a town of 1,500
people north of Birmingham, Police Chief Mike Jones had just
stepped down following Birmingham News reports showing he, the
mayor, and the police had embarked on a plan to bankroll Brookside
by stopping and fining as many travelers as they possibly could. By
2020, half of the city's $1.2 million revenue was coming entirely
from fines and forfeitures, and then that money was being used to
pay for the police department's growth.
Brookside was facing a pack of federal lawsuits from citizens who
claimed police were fabricating charges to force people to pay
thousands of dollars in fines and seizing their vehicles. In April,
the Institute for Justice (IJ) filed a class-action complaint
against Brookside, some of its police officers, and the towing
company that the police were using to seize people's cars. IJ is
representing plaintiff Brittany Coleman (and three others), who
says she was pulled over for following her boyfriend's car too
closely and also cited for marijuana possession, a charge that was
dropped later because the police didn't actually find any
marijuana. Nevertheless, they had her car towed, and she had to pay
close to $1,000 to get it back.
The lawsuit, in the U.S. District Court of the Northern District of
Alabama, Southern Division, seeks to have the town's practices
declared an unconstitutional violation of the Due Process Clause of
the 14th Amendment, an injunction forcing the towing company to
return people's vehicles and any fees they've paid, and, obviously,
an end to the whole scheme.
The town's money-grubbing seems to have collapsed amid the media
attention and lawsuits. In late April, the Birmingham News
published a deeply researched piece on the police department's
misconduct. By then the chief had quit, as had half of the town's
police force. The mayor pulled the police off the nearby
interstate, and a state audit had outlined "missing guns, poor
financial practices and shoddy storage of evidence, including an
unmarked trash bag filled with prescription medicines that did not
seem to be associated with any particular case."
On Tuesday, Carla C. Ward, an assistant U.S. attorney for the U.S.
Attorney's Office of the Northern District of Alabama, sent in a
friendly "statement of interest" supporting IJ's lawsuit and
encouraging the court to allow it to proceed in response to
Brookside filing a motion to try to get the lawsuit dismissed. The
letter notes the severe conflict of interest of the town so heavily
depending on fines and forfeitures to fund the very police officers
who are pulling people over:
-- Judges should not profit from their decisions in cases. Nor
should funding for prosecutors or police officers depend
substantially on unnecessarily aggressive law enforcement aimed at
generating income through fines and fees. Criminal justice systems
tainted by these unreasonable incentives stand to punish the poor
for their poverty and put law enforcement at odds with the
communities they are meant to serve.
The letter notes that pay for both the town's prosecutor and the
municipal judge in Brookside dramatically jumped during these years
of increased enforcement.
"The Justice Department's statement recognizes that Brookside's
abusive system of policing for profit violates the Constitution,
and that the town should be held accountable," IJ Attorney Jaba
Tsitsuashvili said in a prepared statement. "No one should live in
fear of being ticketed, fined, or having their car towed for the
sake of raising police revenue." [GN]
BURGER KING: Seeks to Dismiss PFAS Class Action Lawsuit
-------------------------------------------------------
Law Street Media reports that Burger King Corporation filed a
motion to dismiss in the Northern District of California in the
class action case of Hussain v. Burger King Corporation, which Law
Street Media previously covered.
On April 11, Azam Hussain filed the initial complaint against
Burger King alleging unfair competition and fraud for the use of
per- and polyfluoroalkyl substances (PFAS) in its Whopper's
packaging. The complaint stated that PFAS are a group of synthetic
chemicals known to be harmful to both the environment and humans.
The plaintiff argued that the presence of PFAS in the Whopper's
packaging contradicted Burger King's representations that the
burger is safe for consumption and a sustainable product, amounting
to false advertising, unfair competition and fraud. Further, the
complaint alleged that Hussain and other similarly situated
consumers were harmed and deceived by Burger King's false
advertising due to the presence of PFAS in the Whopper's packaging.
Conversely, Burger King's motion to dismiss, it argues that the
plaintiff's claims are filled with conclusory assertion that Burger
King's products are unsafe because the product packaging contains
PFAS. Additionally, Burger King argues that the claims by the
plaintiff are preempted by federal law because the claims are
inconsistent with Food and Drug Administration (FDA) regulations
governing food contact substances such as PFAS.
Specifically, the motion states that since the 1960s, the FDA has
authorized specific PFAS for uses in food packaging, and Burger
King's Whopper packing and other product packaging is compliant
with federal law and FDA regulations. Thus, Burger King argues that
its food products are not adulterated, unsafe or illegal for sale
as alleged in the complaint.
Given the FDA regulation of PFAS and Burger King's compliance with
such regulation, it argues that the plaintiffs have failed to plead
any actionable claim due to federal preemption. Further, Burger
King purports that the plaintiffs lack standing to for its
prospective injunctive relief because its claims directly conflict
with the FDA regulatory approval process establishing that Burger
King's use of PFAS in its packaging does not render the product
unsafe. Burger King states that the plaintiff's plea for regulatory
reform regarding PFAS is better suited for other political branches
and not the courts.
The plaintiffs are represented by Bursor & Fisher, P.A., and Burger
King is represented by Weil, Gotshal & Manges LLP. [GN]
CARBON 38: Dorton Files Suit Over Unsolicited Phone Calls
---------------------------------------------------------
HOPE DORTON, individually and on behalf of all others similarly
situated, Plaintiff v. CARBON 38, INC., Defendant, Case No.
154458120 (Fla. 13th Jud. Cir. Ct., August 1, 2022) is a class
action complaint brought against the Defendant for its alleged
violations of the Florida Telephone Solicitation Act.
According to the complaint, the Defendant made a “telephonic
sales call” to the Plaintiff's telephone number on or after July
1, 2021 in an attempt to promote its goods and services. The
Defendant allegedly did not obtain the Plaintiff's prior express
written consent to receive such telephonic sales calls, which
involved an automated system for the selection or dialing of
telephone numbers or the playing of a recorded message when a
connection is completed. Upon information and belief, the Defendant
has also caused similar telephonic sales calls to be sent to
individuals in Florida without their prior express written consent,
says the suit.
As a result of the Defendant's unlawful practice of making
unsolicited telephonic sales calls, the Plaintiff and Class members
were aggrieved. Each are entitled to recover damages, costs,
attorney's fees from the Defendant, and an injunction against
future calls, the suit added.
Carbon 38, Inc. 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
CELSIUS NETWORK: Goines Sues Over Loss From Celsius Loans
---------------------------------------------------------
TAYLOR GOINES, individually and on behalf of itself and all others
similarly situated, Plaintiff v. CELSIUS NETWORK, LLC, CELSIUS
LENDING, LLC, CELSIUS KEYFI LLC, ALEXANDER MASHINSKY, SHLOMI
"DANIEL" LEON, DAVID BARSE, and ALAN JEFFREY CARR, Defendants, Case
No. 2:22-cv-04560-KM-ESK (D.N.J., July 13, 2022) is a class action
lawsuit brought by the Plaintiff, on behalf of all people in the
United States who purchased Celsius Financial Products by way of a
Celsius Earn Rewards Account, the Company's so-called native "CEL
Tokens," and/or the Celsius Loans (collectively referred to as the
"Celsius Financial Products") from February 9, 2018 to the present,
for Defendants' alleged violations of the Securities Exchange Act
of 1934.
According to the complaint, Celsius has offered and sold Celsius
Earn Rewards Accounts to investors, through which investors lend
crypto assets to Celsius in exchange for Celsius' promise to
provide a variable monthly interest payment. Celsius generated the
interest paid out to Earn Rewards Account investors by deploying
its assets in various ways, including loans of crypto assets made
to institutional and corporate borrowers, lending U.S. dollars and
stablecoins to retail investors, and by investing in other highly
speculative cryptocurrency ventures. Celsius then pools these
cryptocurrencies together to fund its lending operations and
proprietary trading.
Allegedly, since February 9, 2018, Celsius, through its affiliates
Celsius Lending LLC and Celsius KeyFi LLC, has been, at least in
part, funding its lending operations and proprietary trading
through the sale of unregistered securities in the form of Earn
Rewards Accounts and CEL tokens, and through providing loans to
investors that deposited CEL Tokens or other digital assets in
exchange for a fiat cash loan.
In June 2022, the cryptocurrency market in general faced a
downtrend, with the prices of digital assets decreasing across the
board. This broader market downturn exposed the fragility of the
Celsius ecosystem and, more importantly, that Celsius did not have
enough assets on hand to meet its withdrawal obligations. Much like
a literal Ponzi scheme, Celsius could only maintain its yield rate
promises by continually bringing in new investors whose new influx
of money would be used to pay off the yield for old investors, the
suit alleges.
The Plaintiff and class members justifiably relied on the
representations by the Celsius entities that the Celsius Loans were
a "low risk" way to "earn" interest and that, in the event of a
margin call, borrowers would have ample time and opportunity to
address the underlying issue. If the true facts had been known,
Plaintiff and the class would not have purchased a Celsius Loan
from the Company and/or would have not purchased the Celsius Loan
under the same terms, added the suit.
Celsius Network, LLC is a cryptocurrency lending company
headquartered in Hoboken, New Jersey.[BN]
The Plaintiff is represented by:
John Radice, Esq.
RADICE LAW FIRM
475 Wall Street
Princeton, NJ 08540
Telephone: (646) 245-8502
Facsimile: (609) 385-0745
E-mail: jradice@radicelawfirm.com
- and -
Johnathan M. Zimmerman, Esq.
Sean T. Masson, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
Telephone: (212) 223-6444
E-mail: jzimmerman@scott-scott.com
- and -
John T. Jasnoch, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
600 W. Broadway, Suite 3300
San Diego, CA 92101
Telephone: (619) 233-4565
Facsimile: (619) 236-0508
E-mail: jjasnoch@scott-scott.com
CINDY GILLESPIE: Court Dismisses Class Action w/o Prejudice
-----------------------------------------------------------
In the class action lawsuit captioned as PLANNED PARENTHOOD OF
ARKANSAS AND EASTERN OKLAHOMA, INC., et al., v. CINDY GILLESPIE,
Case No. 4:15-cv-00566-KGB (E.D. Ark.), the Hon. Judge Kristine G.
Baker entered an order adopting the joint stipulation of dismissal
as follows.
-- The Court dismisses the action without prejudice.
-- The Court denies as moot defendant's motion for judgment
on the pleadings as to plaintiffs' Medicaid Act claim,
plaintiffs' motion to compel discovery responses, and
plaintiffs' motion for an expanded protective order.
Before the Court is the parties' joint stipulation of voluntary
dismissal. The stipulation accords with the terms of Federal Rule
of Civil Procedure 41(a)(1)(A)(ii). The Court agrees with the
parties that notice of the proposed voluntary dismissal need not be
given to the class under Federal Rule of Civil Procedure 23(e)(1)
because the class was certified under Rule 23(b)(2), notice was not
issued upon class certification, and lack of notice of voluntary
dismissal will not prejudice absent class members who did not
receive acual notice of this action. The Court also agrees that a
hearing is not necessary under Rule 23(e)(2).
A copy of the Court's order dated Aug. 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3dcuBtx at no extra charge.[CC]
COLLECTION PROFESSIONALS: Initial Sched Order Entered in McGrady
----------------------------------------------------------------
In the class action lawsuit captioned as McGrady v. Collection
Professionals, et al., Case No. 1:22-cv-00100-SWS (D. Wyo.), the
Hon. Judge Kelly H. Rankin entered an initial scheduling order as
follows:
1. Deadline to move for judgment on the pleadings:
-- Filing Deadline: August 26, 2022
-- Response Deadline: September 16, 2022
-- Reply Deadline: September 23, 2022
-- Any motions for judgment August 26, 2022
on the pleadings shall be
filed on or before:
-- Any responsive briefs and September 23, 2022
materials shall be filed on
or before September 16, 2022,
with any replies due by:
2. Deadline to move for class certification:
-- Filing Deadline: January 20, 2023
-- Response Deadline: February 20, 2023
-- Hearing: March 21, 2023
-- Any motion for class January 20, 2023
certification shall be filed
on or before:
-- The parties shall file
responsive briefs and February 20, 2023
materials on or before:
Collection Professionals provides clients superior debt collection,
nsf check and debt recovery services in LaSalle, Joliet and Macomb
Illinois.
A copy of the Court's order dated July 28, 2022 is available from
PacerMonitor.com at https://bit.ly/3zWtsis at no extra charge.[CC]
DAIRY FARMERS: New Mexico Court Stays Discovery in Othart Suit
--------------------------------------------------------------
In the case, OTHART DAIRY FARMS, LLC, PAREO FARM, INC., PAREO FARM
II, INC., DESERTLAND DAIRY, LLC, DEL ORO DAIRY, LLC, BRIGHT STAR
DAIRY, LLC, and SUNSET DAIRY, LLC, Plaintiffs v. DAIRY FARMERS OF
AMERICA, INC., SELECT MILK PRODUCERS, INC., and GREATER SOUTHWEST
AGENCY, Defendants, Case No. 22-cv-0251 MIS/SMV (D.N.M.),
Magistrate Judge Stephan M. Vidmar of the U.S. District Court for
the District of New Mexico:
(1) grants the Motion to Stay Discovery by Defendants Dairy
Farmers of America, Inc. ("DFA"), Select Milk Producers,
Inc. ("Select"), and the Greater Southwest Agency ("GSA");
(2) denies the Plaintiffs' opposed Motion for Leave to File a
Surreply; and
(3) denies without prejudice the Plaintiffs' Unopposed Motion
to Appoint Interim Co-Lead Counsel.
The Plaintiffs filed their Complaint on April 4, 2022, alleging
that DFA, Select, and unnamed co-conspirators conspired to fix
prices of raw Grade A milk in the Southwest region in violation of
section 1 of the Sherman Act, 15 U.S.C. Section 1. The seven
Plaintiffs bring their claims on behalf of themselves individually
and on behalf of a plaintiff class consisting of all dairy farmers
who produced and sold milk to the Defendants within DFA's Southwest
Area region any time from at least Jan. 1, 2015, until the present.
The Court has not yet held a scheduling conference or entered a
scheduling order.
The Defendants have moved to dismiss the Plaintiffs' Complaint. In
short, they argue that the Plaintiffs' claim is time-barred, that
there is no factual basis to support equitable tolling, and that,
even if the Complaint is not time-barred, the Plaintiffs have
failed to allege facts necessary to state an antitrust claim
against them. They argue that, consequently, the single-count
Complaint should be dismissed in its entirety. The Defendants also
maintain that the Plaintiffs' claim against GSA must be dismissed
because they failed to allege any facts tying GSA to the alleged
antitrust violation.
In opposition to the Motion to Dismiss, the Plaintiffs argue that
"the continuing nature of the conspiracy renders their claims
timely" and that, alternatively, the statute of limitations was
tolled because the Defendants concealed their conduct. They also
argue that they have adequately stated an antitrust claim by
alleging "parallel conduct" along with "plus factors" that imply a
conspiracy and ask the Court to deny the Motion to Dismiss or grant
them leave to amend the Complaint.
Briefing on the Motion to Dismiss was complete on July 14, 2022.
In the Motion to Stay, the Defendants argue that they "should not
be subjected to the extraordinary expense that discovery
necessarily requires" until the Motion to Dismiss is decided. They
maintain discovery in this antitrust case will be particularly
burdensome because the Plaintiffs' allegations pertain to conduct
beginning "at least as early as Jan. 1, 2015" by them, the
"officers, agents, employees, and/or representatives" of at least
five alleged co-conspirators who are not named as defendants, and
third parties such as their accountants. The Defendants argue that
the Plaintiffs will not be prejudiced by a stay because discovery
is not necessary for them to respond to the Motion to Dismiss, and
that a stay will not harm them because the Defendants have imposed
a "litigation hold" on the relevant electronically stored
information ("ESI") and documents in their possession, control, or
custody, which adequately protects against the loss of evidence
while a stay is in place.
The Plaintiffs do not oppose a stay of "full-blown" discovery.
However, they argue a stay of all discovery is unwarranted because
the Defendants have not shown with specificity that discovery in
this case will be particularly expensive and burdensome, and that,
if the Court imposes a complete stay, they will be prejudiced
because there is a "serious risk" of loss of ESI. Instead of a
complete stay, they ask the Court to require the parties to
complete "threshold discovery tasks," such as (1) a Rule 26(f)
conference and Rule 26(f) report; (2) initial disclosures under
Rule 26(a); (3) disclosure of information about ESI, organizational
charts, and employees; (4) negotiation of an ESI protocol and
protective order; and (5) identification of document custodians.
They maintain that the Threshold Tasks "fall well short of full
document discovery are not unduly burdensome, and will facilitate
full discovery if the motion to dismiss is denied."
In their Motion for Leave to File Surreply, the Plaintiffs argue
that the Defendants stated for the first time in the Reply that
they are not "collecting" records and data, and that they should be
permitted to file a surreply arguing that they will be prejudiced
by that failure if discovery is stayed. The Defendants contend that
a surreply is inappropriate because they did not make any new
arguments in the Reply.
Finally, the Plaintiffs request that the Court appoints interim
counsel to allow counsel to coordinate discovery, depositions, and
motion practice, employ experts, meet deadlines, and otherwise
efficiently prosecute the litigation. They seek appointment of
Lockridge Grindal Nauen, P.L.L.P., and Hagens Berman Sobol Shapiro,
LLP, as the Interim Co-Lead Class Counsel, and Peifer, Hanson,
Mullins & Baker, P.A., as the Interim Liaison Counsel for the
proposed class.
Judge Vidmar denies the Plaintiffs' Motion for Leave to File a
Surreply because the Defendants' Reply did not raise any new
arguments. He finda that discovery, including the Threshold Tasks,
will pose a substantial burden on the Defendants due to the number
of people and entities involved and the length of the period at
issue. On the other hand, the potential prejudice to the Plaintiffs
is minimal because the risk of loss of evidence is mitigated by the
Defendants' litigation hold. Further, the interests of the Court,
the public, and third parties are served by a stay of discovery
because it will prevent needless expenditure of resources, time,
and money if the Motion to Dismiss is not denied.
Balancing these factors, Judge Vidmar finds that a stay of
discovery as outlined pending a decision on the Defendants' Motion
to Dismiss is appropriate and conducive to a "just, speedy, and
inexpensive" resolution of the case. Finally, the Plaintiffs'
Motion to Appoint Interim Co-Lead Counsel is premature because
there are no overlapping or duplicative cases and no attorneys
competing for appointment.
All discovery is stayed until further order of the Court.
A full-text copy of the Court's July 27, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/4feuackx from
Leagle.com.
DEMET'S CANDY: S.D. New York Grants Bid to Dismiss Spurck Suit
--------------------------------------------------------------
In the case, JESSICCA SPURCK, individually and on behalf of all
others similarly situated, Plaintiff v. DEMET'S CANDY COMPANY, LLC,
Defendant, Case No. 21 CV 05506 (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 Spurck brings the putative class action against the
Defendant. The Defendant manufactures, labels, markets and sells
pretzels purporting to be covered in white fudge under the Flipz
Brand. Consumers of the Product expect it to contain ingredients
essential to fudge when they observe the representation "White
Fudge." However, the Product lacks the type and amount of dairy and
milkfat ingredients essential to fudge, namely butter, and instead
it contains vegetable oils.
The fudge in the Product is comprised of sugar, vegetable oil (palm
kernel oil and hydrogenated palm oil), milk, skim milk powder, soy
lecithin (emulsifier), and artificial flavor. However, the fat
content is not balanced between vegetable fats and dairy
ingredients, as the Product contains more vegetable fat ingredients
than dairy ingredients. Reasonable consumers are misled by the
Product's representation as fudge because they expect the Product
to have a non-de-minimis amount of milkfat instead of vegetable oil
fats. The absence of milkfat means the Product "provides less
satiety, has a waxy and oily mouthfeel and leaves an aftertaste."
Further, consumption of vegetable oils is linked to numerous health
problems.
The Plaintiff bought the Product on one or more occasions between
November and December of 2020. She did not expect the Product to
replace the "essential fudge ingredients" with vegetable oils, and
would not have purchased the Product if she knew the
representations were false.
The Plaintiff filed suit on June 23, 2021. She asserts claims
against the Defendant for (1) violations of Section 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
("MMWA"), 15 U.S.C. Sections 2301, et seq., (6) fraud, and (7)
unjust enrichment.
The Defendant filed a motion to dismiss on Feb. 4, 2022. The
Plaintiff filed a memorandum in opposition, and the Defendant filed
a reply memorandum, and two notices of supplemental authority.
Judge Roman first examines the Plaintiff's GBL claim. Section 349
of the GBL involves unlawful deceptive acts and practices, while
section 350 involves unlawful false advertising. The elements of a
cause of action under both Sections 349 and 350 are that: "(1) the
challenged transaction was 'consumer-oriented'; (2) defendant
engaged in deceptive or materially misleading acts or practices;
and (3) plaintiff was injured by reason of defendant's deceptive or
misleading conduct."
The parties' main dispute in the instant motion involves the second
element: Whether the Defendant engaged in deceptive or materially
misleading acts or practices. To be actionable, the alleged
deceptive act must be "likely to mislead a reasonable consumer
acting reasonably under the circumstances.
Judge Roman holds 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. He finds that a reasonable
consumer is not likely to be reasonably misled by the Product's
packaging. A reasonable consumer would not infer that the Product
was made with a specific fudge recipe or ingredient without
additional representations on the packaging. While the Complaint
lists several recipes and sources that list the ingredients for
fudge that include sugar, milk, and butter, none of these sources
claim that this is the only recipe for fudge.
As for the negligent misrepresentation claim, 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 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. Accordingly, the Plaintiff's negligent
misrepresentation claim fails.
The Defendant next 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, Judge Roman 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.
Next, to state a claim under the MMWA, 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.
Turning to the 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 "White Fudge" derives from milkfat. Furthermore, she
fails to plead facts that show the Defendant acted with fraudulent
intent. The Complaint merely contains conclusory statements that
Defendant's intent "is evinced by its knowledge that the Product
was not consistent with its representations." This is insufficient.
Therefore, the Plaintiff's fraud claim fails.
The Plaintiff's unjust enrichment claim also fails. Under New York
law, an unjust enrichment claim requires "(1) that the defendant
benefitted; (2) at the plaintiff's expense; and (3) that equity and
good conscience require restitution." The Plaintiff has 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.
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 directed to terminate the motion at ECF No.
11 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/ywfts2ta from Leagle.com.
DESH LAW: Bids to Dismiss & for Sanctions in Louis FDCPA Suit Nixed
-------------------------------------------------------------------
In the case, CATHELENE LOUIS, on behalf of herself and all others
similarly situated, Plaintiff v. AMIT DESHMUKH d/b/a DESH LAW, LLC;
and JOHN DOES 1-25, Defendants, Civil Action No. 21-19902 (D.N.J.),
Judge Claire C. Cecchi of the U.S. District Court for the District
of New Jersey denies Desh Law's motion to dismiss the Plaintiff's
putative class-action complaint and its request for sanctions.
The matter arises out of the Plaintiff's debt for medical services,
and subsequent debt collection efforts made by Defendant Desh Law
on behalf of Jack Zuber, DDS. The Plaintiff asserts that the
Defendant violated the Fair Debt Collection Practices Act, 15
U.S.C. Sections 1692 et seq., by including an allegedly unlawful
collection fee in the amount it sought to recover from her in a
state court action.
The Plaintiff, a New Jersey resident, alleges that sometime prior
to May 22, 2021, she incurred a financial obligation to Zuber,
which was referred to Desh Law for collection once it entered
default. On May 22, 2021, Desh Law, on behalf of its client, Zuber,
filed a lawsuit against her in the Superior Court of New Jersey,
Law Division, Special Civil Part, under Docket No.
UNN-DC-004626-21. The Plaintiff alleges that on May 24, 2021, she
was served with a summons and complaint in the State Court Action.
The complaint in the State Court Action sought to collect the
alleged outstanding balance on her account, demanding judgment of
"$3,691.01, Plus costs."
In the instant federal action, the Plaintiff claims that Desh Law
improperly included a collection fee in the demand amount balance
of $3,691.01. She alleges the collection fee is neither authorized
by Zuber's Office Payment Policy nor permitted by law, and
therefore the State Court Summons and Complaint contain false,
deceptive, and misleading language, violating provisions of the
FDCPA, 15 U.S.C. Sections 1692e and 1692f.
On Nov. 10, 2021, the Plaintiff brought the putative class-action
against Defendant for violations to sections 1692e(2)(A), (10), and
1692f(1) of the FDCPA. On Dec. 23, 2021, the Defendant filed the
instant motion to dismiss the Plaintiff's complaint pursuant to
Fed. R. Civ. P. 12(b)(6) and sought sanctions pursuant to the New
Jersey Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1, and Fed.
R. Civ. P. 11. The Plaintiff filed an opposition on Jan. 24, 2022,
to which the Defendant replied on March 21, 2022.
First, Judge Cecchi examines the Defendant's motion to dismiss. The
Plaintiff alleges that, by attempting to collect unauthorized
collection fees, the Defendant violated 15 U.S.C. Section 1692e --
specifically, Sections 1692e(2)(A) and e(10) -- which imposes
liability on debt collectors who "use any false, deceptive, or
misleading representation or means in connection with the
collection of any debt," and Section 1692f(1) by attempting to
collect "an amount (including any interest, fee, charge, or expense
incidental to the principal obligation) unless such amount is
expressly authorized by the agreement creating the debt or
permitted by law."
In opposition, the Defendant argues that the Plaintiff's claims
should be dismissed for the following reasons: (1) her claims are
barred by a mutual release that she and Zuber executed in
settlement of the State Court Action; (2) her claims are barred by
New Jersey's entire controversy doctrine; (3) her claims are
asserted against an improper party; (4) she fails to sufficiently
plead damages; and (5) the State Court Summons and Complaint are
not communications subject to the FDCPA.
Judge Cecchi opines that (1) the mutual release need not be
considered on the instant motion because the Plaintiff's claims are
not based on the mutual release and the complaint does not
specifically reference the mutual release or any of its terms; (2)
because the claims in the State Court Action and the claims in the
present action arose from different facts, the entire controversy
doctrine does not bar the Plaintiff's FDCPA claims against the
Defendant; (3) the Plaintiff adequately alleges that Desh Law is a
debt collector subject to the FDCPA; (4) the Plaintiff's
allegations that she "suffered an informational injury" and "a risk
of economic injury" due to the Defendant's actions are sufficient
to sustain her FDCPA claims; and (5) the State Court Summons and
Complaint constitute communications subject to the FDCPA. Hence,
the Defendant's motion to dismiss is denied.
Judge Cecchi now turns the motion for sanctions. The Defendant
additionally seeks attorneys' fees and costs from the Plaintiff and
her attorney pursuant to the New Jersey Frivolous Litigation
Statute, N.J.S.A. 2A:15-59.1, and Rule 11 of the Federal Rules of
Civil Procedure. Under N.J.S.A. 2A:15-59.1 and Rule 11, "the party
seeking sanctions must file an independent motion or application,
separate from any substantive motion that party files." The
Defendant makes its request for attorneys' fees and costs as part
of its motion to dismiss. This is procedurally improper. Therefore,
its application for sanctions is denied.
An appropriate Order accompanies Judge Cecchi's Opinion.
A full-text copy of the Court's July 27, 2022 Opinion is available
at https://tinyurl.com/ywehpcuv from Leagle.com.
EASTLAKE FOODS: Majewski Seeks Minimum, OT Wages Under FLSA, OMFWSA
-------------------------------------------------------------------
Jessica Majewski, On behalf of herself and others similarly
situated v. Eastlake Foods Ohio, LLC.; Eastlake Foods MI, LLC; and
Hassan Charara, Case No. 1:22-cv-01327-CEF (N.D. Ohio, July 27,
2022) seeks appropriate monetary, declaratory, and equitable relief
based on the Defendants' willful failure to compensate the
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 worked as a delivery driver for Defendants' Pizza Hut
stores located at 6550 Royalton Road, North Royalton, Ohio and 2211
Chester Avenue, Suite B, Cleveland, Ohio from December 1, 2018
through March 31, 2020.
The Plaintiff brings the First Count of this Complaint on behalf of
the following individuals:
"All current and former delivery drivers employed at any of the
Defendants' Pizza Hut locations nationwide at any point during
the three years prior to the filing of this Complaint and the
date of final judgment in this matter, who elect to opt-in to
this action."
Defendant Charara allegedly applies or causes to be applied
substantially the same employment policies, practices, and
procedures to all delivery drivers at all of the Defendants' Pizza
Hut locations, including policies, practices, and procedures
relating to payment of minimum wages, overtime wages, and
reimbursement of automobile expenses, says the suit.[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 OFFICE OF MICHAEL L. FRADIN
8401 Crawford Ave. Ste. 104
Skokie, IL 60076
Telephone: (847) 644-3425
Facsimile: (847) 673-1228
E-mail: mike@fradinlaw.com
EBATES PERFORMANCE: Fails to Pay Proper OT Wages, Jones Suit Says
-----------------------------------------------------------------
BRITTANY JONES, on behalf of herself and all others similarly
situated, Plaintiff v. EBATES PERFORMANCE MARKETING, INC.,
Defendant, Case No. 22-cv-802 (E.D. Wis., July 13, 2022) is a
collective and class action brought pursuant to the Fair Labor
Standards Act and Wisconsin's Wage Payment and Collection Laws and
Fed. R. Civ. P. 23, by Plaintiff, on behalf of herself and all
other similarly situated current and former hourly-paid, non-exempt
employees of Defendant for purposes of obtaining relief for unpaid
overtime compensation, unpaid regular and agreed upon wages,
liquidated damages, costs, attorneys' fees, and declaratory and/or
injunctive relief.
The Plaintiff asserts that the Defendant's failure to compensate
its hourly paid, non-exempt employees for compensable work
performed each workweek, including, but not limited to, an overtime
rate of pay, was intentional, willful, and violated federal law as
set forth in the FLSA and state law as set forth in the WWPCL.
The Plaintiff was hired by the Defendant as an hourly-paid,
non-exempt employee in the position of Member Services
Representative from April 2018 until July 2022.
Ebates Performance Marketing, Inc. is a cash-back and shopping
rewards company with a principal place of business in San Mateo,
California.[BN]
The Plaintiff is represented by:
James A. Walcheske, Esq.
Scott S. Luzi, Esq.
David M. Potteiger, Esq.
WALCHESKE & LUZI, LLC
235 N. Executive Drive, Suite 240
Brookfield, WI 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
E-mail: jwalcheske@walcheskeluzi.com
sluzi@walcheskeluzi.com
dpotteiger@walcheskeluzi.com
ENERGY TRANSFER: Portnoy Reminds of Securities Class Action Lawsuit
-------------------------------------------------------------------
The Portnoy Law Firm advises Energy Transfer LP ("Energy Transfer"
or the "Company") (NYSE: ET) investors that a class action has been
filed on behalf of investors. Energy Transfer investors that lost
money on their investment are encouraged to contact Lesley Portnoy,
Esq.
Investors are encouraged to contact attorney Lesley F. Portnoy, by
phone 844-767-8529 or email: lesley@portnoylaw.com, to discuss
their legal rights, or click here to join the case via
www.portnoylaw.com. The Portnoy Law Firm can provide a
complimentary case evaluation and discuss investors' options for
pursuing claims to recover their losses.
On August 8, 2019, Energy Transfer disclosed that in mid-2017, the
Federal Energy Regulatory Commission ("FERC") Enforcement Staff
initiated a non-public formal investigation "regarding allegations
that diesel fuel may have been included in the drilling mud at the
Tuscarawas River HDD [i.e., Horizontal Directional Drilling
Activities]."
On this news, Energy Transfer's stock fell $0.65, or 4.6%, over two
trading days to close at $13.38 per share on August 12, 2019,
thereby injuring investors.
Then, on December 16, 2021, FERC publicly issued to Energy Transfer
the Order To Show Cause and Notice of Proposed Penalty, directing
the Company to show cause why it should not be assessed a civil
penalty in the amount of $40 million. The order alleged that the
HDD crews intentionally included diesel fuel and other toxic
substances and unapproved additives in the drilling mud during its
HDDs under the Tuscarawas River.
On this news, Energy Transfer's stock fell $0.24, or 2.8%, over two
trading days to close at $8.25 per share on December 20, 2021,
thereby injuring investors further.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to investors
that: (1) Energy Transfer had inadequate internal controls and
procedures to prevent contractors from engaging in illegal conduct
with regards to drilling activities, and/or failed to properly
mitigate known issues related to such controls and procedures; (2)
Energy Transfer through its subsidiary Rover Pipeline, LLC hired
third-party contractor to conduct HDD for the Rover Pipeline
Project, whose conduct of adding illegal additives in the drilling
mud caused severe pollution near the Tuscarawas River when a large
inadvertent release took place on April 13, 2017; (3) Energy
Transfer continually downplayed its potential civil liabilities
when the FERC was actively investigating the Company's wrongdoing
related to the April 13 Release and consistently provided it with
updated information about FERC's findings on this matter; (4) these
issues were foreseeably likely to subject Energy Transfer to
increased governmental scrutiny and enforcement, as well as
increased reputational and financial harm, and would also
materially impact Energy Transfer's financial results; and (5) as a
result, Defendants' positive statements about the Company's
business, operations, and prospects were materially misleading
and/or lacked a reasonable basis at all relevant times.
Please visit our website to review more information and submit your
transaction information.
The Portnoy Law Firm represents investors in pursuing claims
against caused by corporate wrongdoing. The Firm's founding partner
has recovered over $5.5 billion for aggrieved investors.
Contact:
Lesley F. Portnoy, Esq.
Admitted CA and NY Bar
lesley@portnoylaw.com
310-692-8883
www.portnoylaw.com [GN]
ENOCHIAN BIOSCIENCES: Glancy Prongay Files Securities Fraud Suit
----------------------------------------------------------------
Glancy Prongay & Murray LLP announces that it has filed a class
action lawsuit in the United States District Court for the Central
District of California, captioned Manici v. Enochian Biosciences,
Inc., et al., Case No. 22-cv-5237, on behalf of persons and
entities that purchased or otherwise acquired Enochian Biosciences,
Inc. ("Enochian" or the "Company") (NASDAQ: ENOB) securities
between January 17, 2018 and June 27, 2022, inclusive (the "Class
Period"), including common stock issued by Enochian in a private
placement offering on or about February 16, 2018. Plaintiff pursues
claims under Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934 (the "Exchange Act").
Investors are notified that they have 60 days from this notice to
move the Court to serve as lead plaintiff in this action.
If you suffered a loss on your Enochian investments or would like
to inquire about potentially pursuing claims to recover your loss
under the federal securities laws, you can submit your contact
information at www.glancylaw.com/cases/enochian-biosciences-inc/.
You can also contact Charles H. Linehan, of GPM at 310-201-9150,
Toll-Free at 888-773-9224, or via email at
shareholders@glancylaw.com or visit our website at
www.glancylaw.com to learn more about your rights.
On May 25, 2022, the U.S. Department of Justice announced that
Serhat Gumrukcu, the co-founder and inventor of Enochian, had been
arrested in a murder-for-hire conspiracy.
On this news, the Company's shares fell $2.17, or 37%, to close at
$3.70 per share on May 25, 2022, on unusually heavy trading
volume.
On June 1, 2022, Hindenburg Research published a research report
alleging, among other things, that the charge related to the murder
of Gregory Davis, just days before Gumrukcu was to defend himself
against felony fraud allegations related to a deal with Davis.
According to the report, "[f]ederal prosecutors argued that the
prospective merger deal that eventually resulted in Enochian going
public served as a key motive for the murder." The report also
alleged that Gumrukcu is not a licensed doctor in any jurisdiction
in the world, that he had pled guilty to felony charges in the
midst of the Company's merger, and that he "had siphoned tens of
millions of dollars in shareholder cash from Enochian to his
privately-owned entities." Moreover, Hindenburg alleged that
Enochian has been aware of the foregoing allegations.
On this news, the Company's shares fell $1.495, or 28.4%, to close
at $3.77 on June 1, 2022, on unusually heavy trading volume.
On June 27, 2022, The Wall Street Journal published an article
about Gumrukcu's participation in the murder-for-hire conspiracy,
claiming that Gumrukcu owed Davis over $900,000 after Gumrukcu
coaxed Davis into entering into a fraudulent oil deal with him. The
article further alleged that FBI agents were suspicious that
Gumrukcu "had fabricated his resume and held neither a medical
degree nor a doctoral degree."
On this news, the Company's shares fell $0.73, or 21.9%, to close
at $2.60 per share on June 27, 2022, on unusually heavy trading
volume.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to
investors: (1) that co-founder and inventor Gumrukcu was engaged in
a variety of frauds; (2) that Gumrukcu was not a licensed doctor
anywhere in the world; (3) that, as a result of the foregoing,
Gumrukcu's purported contributions to the Company lacked a
reasonable basis; (4) that, as a result of the foregoing, the
Company had overstated its commercial prospects; (5) that Gumrukcu
had improperly diverted approximately $20 million from Enochian to
entities he owned; and (6) that, as a result of the foregoing,
Defendants' positive statements about the Company's business,
operations, and prospects were materially misleading and/or lacked
a reasonable basis.
If you purchased or otherwise acquired Enochian securities during
the Class Period, you may move the Court no later than 60 days from
this notice to ask the Court to appoint you as lead plaintiff. To
be a member of the Class you need not take any action at this time;
you may retain counsel of your choice or take no action and remain
an absent member of the Class. If you wish to learn more about this
action, or if you have any questions concerning this announcement
or your rights or interests with respect to these matters, please
contact Charles Linehan, Esquire, of GPM, 1925 Century Park East,
Suite 2100, Los Angeles California 90067 at 310-201-9150, Toll-Free
at 888-773-9224, by email to shareholders@glancylaw.com, or visit
our website at www.glancylaw.com. If you inquire by email please
include your mailing address, telephone number and number of shares
purchased.
Contact:
Glancy Prongay & Murray LLP, Los Angeles
Charles H. Linehan, 310-201-9150 or 888-773-9224
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
www.glancylaw.com
shareholders@glancylaw.com
Glancy Prongay & Murray LLP [GN]
EXPERIAN INFORMATION: Shaked Sues for Inaccurate Credit Reporting
-----------------------------------------------------------------
JOY SHAKED AND YISROEL LIEBERMAN, in their individual capacity and
on behalf of similarly situated consumers, Plaintiffs v. EXPERIAN
INFORMATION SOLUTIONS, INC., TRANS UNION, LLC AND TOYOTA MOTOR
CREDIT CORPORATION, Defendants, Case No. 1:22-cv-04088-HG
(E.D.N.Y., July 12, 2022) is a class action seeking redress for the
illegal practices of the Defendants in maintaining and reporting
consumer credit information in violation of the Fair Credit
Reporting Act.
According to the complaint, the Plaintiff is a consumer who is the
victim of inaccurate reporting by all Defendant bureaus and the
furnisher and has suffered particularized and concrete harm.
On May 18, 2022, the Plaintiffs sent letters to Experian and Trans
Union, stating that they were never late on their Toyota accounts
as their accounts were set up for auto-pay. When the Plaintiffs
extended their leases, they were never informed by telephone or
mail that the auto-pay arrangement would be turned off once the
lease was extended. The Plaintiffs requested that the late payment
showing on their accounts are not accurate as the auto-pay should
have continued, says the suit.
The Defendants had allegedly violated FCRA, since Plaintiffs
disputed the accuracy of the information in Plaintiffs' credit
files and then notified Experian and Trans Union of the said
dispute. Despite the dispute from the Plaintiffs, Defendants have
completely abdicated their obligations under federal and state law,
the suit asserts.
The Defendants are credit reporting agencies (CRA) that engage in
the business of maintaining and reporting consumer credit
information and Toyota is a furnisher of credit information to the
CRAs.[BN]
The Plaintiffs are represented by:
Adam J. Fishbein, Esq.
ADAM J. FISHBEIN, P.C.
735 Central Avenue
Woodmere, NY 11598
Telephone: (516) 668-6945
E-mail: fishbeinadamj@gmail.com
EXPRESS SCRIPTS: Loses Bid for Summary Judgment v. Perez
--------------------------------------------------------
In the class action lawsuit captioned as DIANE PEREZ, individually
and on behalf of all others similarly situated, v. EXPRESS SCRIPTS,
INC., and EXPRESS SCRIPTS HOLDING COMPANY, Case No.
2:19-cv-07752-JXN-ESK (D.N.J.), the Hon. Judge Julien Xavier Neals
entered an order:
1. denying the Defendants' motion for summary judgment;
2. granting the Plaintiff's motion for Conditional Class
Certification; and
3. granting the Plaintiff's motion Equitable Tolling of the
Fair Labor Standards Act (FLSA) Statute of Limitations.
Express Scripts offers pharmacy benefit management services.
A copy of the Court's order dated July 28, 2022 is available from
PacerMonitor.com at https://bit.ly/3ORSOTb at no extra charge.[CC]
FEDERAL EXPRESS: Class Cert. Deadlines Extended in Weisfeld Suit
----------------------------------------------------------------
In the class action lawsuit captioned as BEN WEISFELD, RANDY
ALEXANDER, LINDA TUCKER, KEVIN BROWN, RICHARD GUARDINO and MEMPHIS
CENTER FOR INDEPENDENT LIVING ("MCIL"), individually and on behalf
of all others similarly situated, v. FEDERAL EXPRESS CORPORATION;
and DOES 1- 25, inclusive, Case No. 2:22-cv-02133-JPM-tmp (W.D.
Tenn.), the Hon. Judge Tu M. Pham entered an order granting joint
motion to extend deadlines related to class certification as
follows:
Event Current New Proposed
Deadline Deadline
-- Plaintiffs' Motion For Aug. 12, 2022 Oct. 25, 2022
Class Certification
(and any related Class
Expert Report):
-- Defendant's Depositions Sept. 16, 2022 Nov. 29, 2022
of Plaintiff's Class
Expert Witness(es):
-- Defendant's Response Oct. 7, 2022 Dec. 20, 2022
(and any related Class
Expert Report):
-- Plaintiffs' Depositions Oct. 28, 2022 Jan. 20, 2023
of Defendant's Class
Expert Witness(es):
-- Plaintiffs' Reply Nov. 10, 2022 Jan. 27, 2023
(and any related Class
Expert Rebuttals)
-- Hearing: Dec. 8, 2022 Feb. 27, 2023
FedEx is an American multinational conglomerate holding company
focused on transportation, e-commerce and services based in
Memphis, Tennessee.
A copy of the Court's order dated Aug. 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3Ql2ZRe at no extra charge.[CC]
FICOSA NORTH: Fails to Pay Customer Techs' OT, Rigsby Suit Contends
-------------------------------------------------------------------
KIMBERLY RIGSBY, individually and on behalf of all others similarly
situated v. FICOSA NORTH AMERICA CORPORATION, Case No.
2:22-cv-11742-TGB-KGA (E.D. Mich., July 27, 2022) contends that the
Defendant unlawfully failed to pay individuals in the position of
Customer Technician or in positions with similar duties, overtime
compensation pursuant to the requirements of the Fair Labor
Standards Act.
The Plaintiff brings this action individually to recover unpaid
overtime wages, liquidated damages, pre-judgment interest, and
reasonable attorneys' fees and costs as a result of Defendant's
violations of the Kentucky's Wage and Hours Act.
The Plaintiff was employed by Defendant in the position of Customer
Technician. During the tenure of her employment, Defendant
unlawfully failed to pay Customer Technicians for overtime
compensation for work performed in excess of 40 hours during a
workweek, says the suit.
Accordingly, Customer Technicians regularly worked more than 40
hours per week, but were not properly compensated for their work in
that Customer Technicians were not paid an overtime premium at 1.5
times their regular rate of pay for each hour worked in excess of
40 hours in a workweek, in violation of the FLSA and KWHA, the suit
added.
The Defendant allegedly maintains a systemic policy of willfully
misclassifying Customer Technicians as exempt from overtime pay
pursuant to the FLSA's administrative exemption despite knowing
that their primary job duties do/did not fall within the
administrative exemption of the FLSA's exemptions to the statute's
overtime pay requirements.
Plaintiff Rigsby was employed by Defendant at Defendant's
Shelbyville, Kentucky facility from September 6, 1988, to March 31,
2022.
The Defendant maintains and operates manufacturing facilities
located in Shelbyville, Kentucky, and Cookeville, Tennessee, and
maintains a corporate office located in Madison Heights,
Michigan.[BN]
The Plaintiff is represented by:
Jason T. Brownm, Esq.
Nicholas Conlon, Esq.
Edmund C. Celiesius, Esq.
BROWN, LLC
111 Town Square Place, Suite 400
Telephone: (877) 561-0000
E-mail: jtb@jtblawgroup.com
nicholasconlon@jtblawgroup.com
ed.celiesius@jtblawgroup.com
FORD MOTOR: Canadian Court Dismisses Suit Over 2014 Ford Edge
-------------------------------------------------------------
Danika L. Winkel, an associate at Hicks Morley, wrote that in
Rebuck v. Ford Motor Company, the Ontario Superior Court recently
granted the defendants' motion for summary judgment to dismiss the
plaintiff's class action. The class action involved an allegation
of misleading advertising under the federal Competition Act.
Factual History
In 2014, a consumer filed a lawsuit after noticing that the miles
per gallon (MPG) on his leased 2014 Ford Edge were significantly
lower than the estimated MPG printed on an "EnerGuide" label
affixed to the vehicle.
The action was converted into a class action in early 2016, on
behalf of the approximately 600,000 Canadians who had purchased or
leased a new 2013 or 2014 Ford vehicle, alleging that the defendant
knew that the 5-Cycle Test was a more accurate representation of
real-world driving behaviour but continued to use the 2-Cycle Test
that understated actual fuel consumption by some 15%.
The plaintiff alleged that Ford violated the misleading advertising
provisions in the federal Competition Act and provincial consumer
protection laws and claimed for damages of $1.5 billion as
compensation for the alleged 15% overpayment in fuel charges
incurred over the course of the ownership or lease of their
vehicles.
The action was certified as a class proceeding by Justice Morgan in
2018, and proceeded to a summary judgment motion before Justice
Belobaba.
The Court's Analysis and Decision
Justice Belobaba concluded that the plaintiff had not established
that the defendants breached section 52(1) of the Competition Act,
for two reasons:
-- the defendants' compliance with federal government guidelines
(which prescribed the design and content of the EnerGuide Label and
the required fuel-consumption test method) could not fairly or
reasonably amount to a breach of federal competition law, and
-- the plaintiff had not established an evidentiary basis for its
"general impression" argument that, regardless of the literal
meaning of the Label, its general impression was misleading.
Justice Belobaba also dismissed the plaintiff's "general
impression" argument with respect to whether the defendants had
breached sections 14 and 17 of the Consumer Protection Act and
parallel provisions of provincial consumer protection legislation.
Justice Belobaba gave more credence to the plaintiff's argument
based on alleged "non-disclosure", agreeing that while federal laws
precluded the Defendants from unilaterally changing the EnerGuide
Label, there was nothing to legally prevent the defendants from
affixing a second label to their vehicles. Nonetheless, this
argument also failed as Justice Belobaba concluded that the
defendants were not legally obligated to add a second label because
the plaintiff had not proven that the defendants knew or ought to
have known that the EnerGuide Label was deficient.
As Justice Belobaba had found no contraventions of the Competition
Act or the Consumer Protection Act (or any other parallel
provincial legislation), he did not substantively assess whether
the class members were entitled to damages. But His Honour did make
the following telling comments about the lack of evidence:
In my view, even if the plaintiff had prevailed on liability (the
first two issues), he probably would not have prevailed on the
damages issue. [. . .]
In sum, this is a class action that was burdened with both legal
and evidentiary challenges but failed primarily because of the
latter -- a complete absence of evidence for any of the plaintiff's
key allegations.
Key Takeaways
This decision is significant for employers facing a class
proceeding because it serves as a helpful reminder that, without a
proper evidentiary basis (including adequate witness and expert
evidence), a plaintiff's class proceeding - even if certified - is
not likely to be ultimately successful on the merits. [GN]
GEICO GENERAL: Class Action Settlement Gets Initial Approval
------------------------------------------------------------
In the class action lawsuit captioned as Munoz, et al v. GEICO
General Insurance Company, Case No. 4:19-cv-03768-HSG (N.D. Cal.),
the Hon. Judge Haywood S. Gilliam, Jr. entered an order granting
preliminary approval of class action settlement.
-- Settlement Agreement
The Settlement Class is defined as:
Regulatory Fees Class:
"All individual insureds under an Automobile Insurance
Policy covering a vehicle with private-passenger auto
physical damage coverage with comprehensive or collision
coverage, whose claim was adjusted under Section III of the
GEICO's Automobile Insurance Policy (i.e. comprehensive or
collision coverage) during the Class Period, that was
determined by GEICO to be a covered claim and where GEICO
determined that the vehicle was a total loss and did not
pay to repair the damage to the vehicle and where the
insured did not retain the salvage vehicle."
Sales Tax Class:
"All individual insureds under an Automobile Insurance
Policy covering a leased vehicle with private-passenger
auto physical damage coverage with comprehensive or
collision coverage, who's claim was adjusted under Section
III of the GEICO's Automobile Insurance Policy (i.e.
comprehensive or collision coverage), during the Class
Period, that was determined by GEICO to be a covered claim
and where GEICO determined that the vehicle was a total
loss and did not pay to repair the damage to the vehicle,
where the insured did not retain the total-loss vehicle and
where GEICO did not include ACV Sales Tax in the Total Loss
Claim Payment(s)."
-- Settlement Benefits:
The Defendant has agreed to:
(1) upon submission of a valid claim by a Regulatory Fees
Class member, pay $6.88, representing one-half of an
average monthly payment in regulatory fees, and
(2) upon submission of a valid claim by a Sales Tax Class
member, pay $6.88 in regulatory fees plus the sales tax
at the applicable state and county rate at the time of
loss to all insureds.
-- Class Notice:
KCC, a third-party settlement administrator, will mail
class notices to all reasonably identifiable class members
on two occasions, with pre-filled, detachable, and postage-
prepaid claim forms.
-- Attorneys' Fees and Costs:
Class counsel will file an application for attorneys' fees
and costs not to exceed $3,900,000.
The Plaintiff Ventrice-Pearson filed a claim on behalf of herself
and all others similarly situated on June 27, 2019. The Plaintiff
Subbaiah filed her claim on July 3, 2019, and the Plaintiff Perez
filed her claim on October 23, 2020. The Perez and Subbaiah cases
have since been transferred to this Court and consolidated with the
Ventrice-Pearson case for purposes of settlement.
Geico General Insurance Company operates as an insurance company.
A copy of the Court's order dated July 28, 2022 is available from
PacerMonitor.com at https://bit.ly/3zyfkKT at no extra charge.[CC]
GENERAL MOTORS: Sued as Flex Fuel Vehicles Can't Run on E85
-----------------------------------------------------------
Corrado Rizzi of ClassAction.org reports that General Motors faces
a class action over its alleged failure to disclose that its Flex
Fuel vehicles cannot regularly operate on 85-percent ethanol (E85)
fuel alone without damage.
Defendant(s): General Motors LLC
Law(s): Illinois Consumer Fraud and Deceptive Business Practices
Act
State(s): Illinois
General Motors has been hit with a proposed class action over its
alleged failure to disclose that its Flex Fuel vehicles cannot
regularly operate on 85-percent ethanol (E85) fuel alone without
damage.
More specifically, the 18-page case says that GM does not inform
vehicle owners that they must alternately fill their cars with E85
and gasoline. Although GM shares warnings in a vehicle's owner's
manual with regard to lower mileage for E85 fuel and the
incompatibility of E85 with low temperatures, the automaker is mum
regarding the consistent use of E85, the lawsuit relays.
According to the suit, internal GM documents state that "excessive
use of E85" may cause an internal fuel pump plunger to stick,
which, in turn, can cause a sudden lack of power and require costly
repairs. The filing claims that GM has known of the problems linked
to exclusive E85 usage since at least 2016, as evidenced by several
technical service bulletins.
"This issue is not disclosed to consumers, who find out about the
problem when it occurs," the case says. "If the person is operating
the vehicle on the highway at the time it occurs, it is a
significant safety hazard."
General Motors represents to the public that its Flex Fuel vehicles
can "run on E85 ethanol, gasoline, or any combination of the two,"
the suit stresses. According to the complaint, E85 sold earlier
this year for about $1.50 to $2 less per gallon than gasoline, and
Flex Fuel vehicles are more valuable than comparable vehicles that
run on only gasoline, per the case.
The lawsuit argues that GM's claim that its Flex Fuel vehicles can
"run on E85 ethanol, gasoline or any combination of the two"
negates any requirement that ethanol and gasoline must be used
alternatively.
The case says that the owner's manual for the plaintiff's used 2016
Flex Fuel Chevy Impala includes no warning about alternating
between E85 fuel and gasoline, or filling up with gasoline every
other tank or every third tank, to prevent damage. Moreover, the
owner's manual states that "[t]he use of E85 or FlexFuel is
encouraged when the vehicle is designed to use it," which the
complaint argues is "flatly contrary to the proposition that
frequent use of gasoline is necessary."
According to the filing, the plaintiff, an Illinois resident, began
using E85 fuel regularly when the price of gasoline increased in
2022. In April, the plaintiff's check engine light came on and the
vehicle lost power, the case says.
When the plaintiff brought his vehicle in for repair, he learned
that its fuel pump needed to be replaced, the suit continues. Per
the complaint, the dealer asked the plaintiff if he was using E85,
specifically if he had mixed it with gasoline. When the plaintiff
shared that he had been using E85 exclusively, he was informed that
he should have been alternating with gasoline between fill-ups, the
lawsuit says.
After failing an emissions test this summer, the plaintiff learned
that his vehicle would need a new mass air flow sensor due to the
fuel pump problem related to his exclusive use of E85, the
complaint relays.
The lawsuit looks to cover all persons with an Illinois address who
bought a new or used GM Flex Fuel vehicle within the last three
years. [GN]
GOBRANDS INC: Dorton Sues Over Unsolicited Telephonic Sales Calls
-----------------------------------------------------------------
The case, HOPE DORTON, individually and on behalf of all other
similarly situated, Plaintiff v. GOBRANDS, INC., Defendant, Case
No. 154456632 (Fla. 13th Jud. Cir. Ct., August 1, 2022) arises from
the Defendant's alleged violations of the Florida Telephone
Solicitation Act (FTSA).
In an attempt to promote its goods and services, the Defendant
allegedly engages in telephonic sales calls to telephone numbers
belonging to thousands of consumers in Florida without obtaining
their prior express written consent as required by the FTSA. The
Plaintiff claims that she has received a "telephonic sales call"
from the Defendant to his telephone number on or after July 1,
2021. The Defendant's telephonic sales calls involved an automated
system for the selection or dialing of telephone numbers or the
playing of a recorded message when a connection is completed, says
the suit.
According to the complaint, the Defendant's unsolicited telephonic
sales calls have aggrieved the Plaintiff and other similarly
situated individuals. Thus, on behalf of herself and the Class
members, the Plaintiff seeks an injunction requiring the Defendant
to cease all telephonic sales calls made without express written
consent. The Plaintiff also seeks statutory damages, attorney's
fees and court costs, and other relief as the Court deems
necessary.
GoBrands, Inc. 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
HANNAFORD BROS: Prinzo Seeks to Certify Class of Managers
---------------------------------------------------------
In the class action lawsuit captioned as JUDITH PRINZO, on behalf
of herself and all other employees similarly situated, v. HANNAFORD
BROS. CO., LLC, Case No. 1:21-cv-11901-WGY (D. Mass.), Ms. Prinzo
asks the Court to enter an order:
1. certifying a class of Massachusetts fresh department
managers;
2. appointing her as named representative; and
3. appointing Fair Work, P.C. and Steffans Legal PLLC as class
counsel.
There are at least 116 department managers in the proposed class.
Managers are commonly scheduled to work 45 hours per week, meaning
that they consistently work overtime. But because they are
classified as exempt and paid a salary as opposed to hourly, they
receive no overtime pay, the Plaintiff contends.
This case is brought by Judith Prinzo, a former bakery department
manager in Massachusetts. Ms. Prinzo alleges that Hannaford wrongly
classifies its fresh department managers as exempt from overtime.
Hannaford is an American supermarket chain based in Scarborough,
Maine. Founded in Portland, Maine, in 1883, Hannaford operates
stores in New England and New York.
A copy of the Plaintiff's motion to certify class dated July 29,
2022 is available from PacerMonitor.com at https://bit.ly/3JLe9Nf
at no extra charge.[CC]
The Plaintiff is represented by:
Stephen Churchill, Esq.
FAIR WORK, P.C.
192 South Street, Suite 450
Boston, MA 02111
Telephone: (617) 607-3260
Facsimile: (617) 488-2261
E-mail: steve@fairworklaw.com
- and -
Benjamin Knox Steffans, Esq.
STEFFANS LEGAL PLLC
10 Wendell Ave. Ext. Suite 208
Pittsfield, MA 01201
Telephone: (413) 418-4176
E-mail: bsteffans@steffanslegal.com
HCA HEALTHCARE: Asheville, N.C. Sues Over Anticompetitive Scheme
----------------------------------------------------------------
Mountain Xpress reports that the City of Asheville and Buncombe
County filed a class action antitrust lawsuit Wednesday, July 27 in
Federal District Court against HCA Healthcare, Inc., Mission
Hospital, and related business entities seeking injunctive relief
and damages resulting from anticompetitive practices. The 59-page
complaint details an extensive pattern of behavior by HCA intended
to monopolize healthcare markets in western North Carolina, the
result of which is artificially high prices for healthcare services
and a reduced standard of care that has damaged, and continues to
damage, local governments and private entities who act as
self-insurers for their employees.
"This action was taken with careful consideration," said Asheville
Mayor Esther Manheimer. "The Asheville City Council and the
Buncombe County Board of Commissioners felt it was necessary to
take this step to bring an end to predatory practices that limit
HCA Healthcare's competition and clearly result in overpriced and
limited choices in people's healthcare. We believe this lawsuit
will not only address the damages sustained by local governments
and other self-insured organizations, but will also result in a
fair and improved healthcare system for our entire community."
Brownie Newman, Chair of the Buncombe County Board of Commissioners
stated: "The County Commissioners are concerned that HCA's business
operations monopolize healthcare while artificially inflating
prices, and self-insured organizations like ours have no other
recourse. On behalf of our public employees and our community, we
have a responsibility to challenge these unfair business practices
that harm patients and families at a time they are often most
vulnerable." [GN]
HEALTH IQ: District Court Sends Dobbs TCPA Suit to Arbitration
--------------------------------------------------------------
In the case, RYAN DOBBS, Plaintiff v. HEALTH IQ INSURANCE SERVICES,
INC., Defendant, Civil Action No. 21-5276 (E.D. Pa.), Judge Jeffrey
L. Schmehl of the U.S. District Court for the Eastern District of
Pennsylvania grants Health IQ's motion to compel arbitration and
stays the action in its entirety.
Mr. Dobbs filed a class action Complaint against the Defendant
asserting its telemarketing calls to be a violation of his privacy
rights under the Telephone Consumer Protection Act. Health IQ, is
in the business of selling insurance plans and services.
On May 8, 2019, the Plaintiff clicked an ad that Health IQ had
placed on Facebook and was directed to its website. After landing
on Defendant's website, he completed a multi-page form requesting
information about insurance products. As he completed the web form,
clicking next several times, the Plaintiff provided Health IQ with
his name, address, email address, telephone number, age, gender,
height, and weight. The last page of the form included the
following relevant language immediately below the green "SUBMIT"
button: "By clicking 'SUBMIT', you agree to our Privacy Policy and
Terms of Use."
Setoff from the rest of the text in blue, underlined font, the
words "Terms of Use" were an active hyperlink to the full text of
the Terms of Use. Plaintiff provided his contact information and
clicked "SUBMIT." The phone number that the Plaintiff provided to
the Defendant matches the number that he identifies as his own in
the Complaint.
The Plaintiff alleges that starting in June 2021, he received at
least four unsolicited phone calls and two text messages from the
Defendant. According to him, his cell phone number had been
registered on the National Do Not Call Registry and the calls and
texts that he received from the Defendant violated the TCPA.
Pursuant to the TCPA, registration with the Do Not Call Registry
allows an individual to avoid receiving unwanted telemarketing
calls and to recover penalties should his or her privacy rights be
willfully or knowingly violated.
The Defendant argues that the Plaintiff assented to its Terms of
Use when he provided his contact information and clicked "SUBMIT"
after following its Facebook ad. The Defendant's Terms of Use
contain an arbitration provision that requires users to submit
claims against Defendant to binding arbitration on an individual
basis. Furthermore, the Terms of Use allow users to opt out of the
arbitration provisions by sending written notice to the Defendant
within 30 days. The Plaintiff did not send any opt out to the
Defendant.
Before the Court is Health IQ's motion to compel arbitration.
In analyzing the instant set of facts, Judge Schmehl must first
determine whether the parties entered into a valid arbitration
agreement. If so, he must then determine whether the arbitration
agreement delegated issues such as arbitrability to the
arbitrator.
The Plaintiff argues that the agreement to delegate issues of
arbitrability and to arbitrate is invalid because it is illusory,
because the Terms of Use can be changed at the will of the
Defendant. He further argues that even if the Court concludes that
the agreement is not illusory, the motion to compel arbitration
should be denied because there is a material issue of fact as to
whether the parties entered into an agreement to delegate certain
issues to an arbitrator.
Judge Schmehl does not find the Plaintiff's arguments to be
persuasive. First, the Plaintiff does not state that he never
visited the Defendant's website. Nor does he deny that he submitted
the online form on its website to obtain information about
insurance products. The Plaintiff's conclusory statement that he
did not enter into any agreement with it is insufficient to create
an issue of material fact. His naked assertions that he never
signed the arbitration agreement are insufficient to lead the Court
to conclude otherwise." Accordingly, despite the Plaintiff's
attempts to create a factual issue, Judge Schmehl finds that the
Plaintiff assented to the Defendant's Terms of Use.
Having found that the Plaintiff assented to the Defendant's Terms
of Use, Judge Schmehl must next decide whether the Terms of Use
contain a valid arbitration agreement. As set forth, the Terms of
Use contain a provision that states, inter alia, "all claims
arising out of or relating to this Agreement and your use of the
Service will be finally settled by binding arbitration administered
by the American Arbitration Association ("AAA")." When the
Plaintiff clicked submit and assented to the Defendant's Terms of
Use, he assented to the arbitration provision contained in the
agreement as well. Accordingly, the parties entered into a valid
arbitration agreement.
The Terms of Use require disputes between the Plaintiff and the
Defendant to be submitted to "binding arbitration administered by
the AAA in accordance with the provisions of its Commercial
Arbitration Rules." Accordingly, by incorporating the AAA rules,
the parties in the matter clearly delegated threshold questions
such as the question of arbitrability to the arbitrator. In an
attempt to circumvent this delegation, the Plaintiff argues that
the Terms of Use, including the delegation provision, are illusory
and unenforceable because a provision in the Terms of Use gives the
Defendant the right to modify them.
A review of the Plaintiff's brief shows that he clearly takes issue
with the entire agreement and not with the delegation provision
specifically. He bases his challenge to the delegation clause
(contained in Section 20(A) of the Terms of Use) on the
modification provision which is contained in a separate section of
the Terms (Section 1). The Plaintiff has not made any arguments
specific to the delegation clause. Although his section heading
asserts that the delegation provision is illusory, the substantive
argument that he makes in his brief does not support his heading.
Rather, he recycles the same arguments that apply to the contract
as a whole, which is insufficient to challenge the delegation
clause.
Therefore, the Plaintiff's argument that the delegation provision
and the agreement as a whole is illusory due to the Defendant's
ability to change the terms is not an issue to be addressed by the
Court. Rather, this issue is one for the arbitrator, as
contemplated by the valid delegation provision that was entered
into between the Plaintiff and the Defendant.
A full-text copy of the Court's July 27, 2022 Memorandum Opinion is
available at https://tinyurl.com/mmdw4m4c from Leagle.com.
HEALTHCARE REVENUE: Filing of Class Cert Bid Extended to August 29
------------------------------------------------------------------
In the class action lawsuit captioned as MORALES v. HEALTHCARE
REVENUE RECOVERY GROUP, LLC, et al., Case No. 2:15-cv-08401-EP-JBC
(D.N.J.), the Hon. Judge James B. Clark entered an order extending
the deadline for Plaintiff to file his motion for class
certification from July 30, 2022 to August 29,2022.
Healthcare Revenue provides collection services to health care
sector.
A copy of the Court's order dated Aug. 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3Q5utdX at no extra charge.[CC]
The Plaintiff is represented by:
Yongmoon Kim, Esq.
KIM LAW FIRM LLC
Continental Plaza
411 Hackensack Avenue, Suite 701
Hackensack, NJ 07601
Telephone: (201) 273-7117
HEWLETT-PACKARD: Class Action Claims Defect in HP AMD Computers
---------------------------------------------------------------
Corrado Rizzi, writing for ClassAction.org, reports that a proposed
class action alleges certain HP computers equipped with AMD Ryzen
and AMD Athlon processors with firmware trusted platform modules
(fTPMs) are defective in that they can develop stuttering during
audio and video playback and are particularly susceptible to
cyberattacks.
According to the 87-page complaint out of California, the fTPMs in
the computers, implemented as a response to beefed-up Windows 11
firmware security requirements, cause "invasive stuttering" during
videoconferencing and gameplay.
More seriously, the fTPM defect also leaves the HP devices more
vulnerable to catastrophic firmware attacks, even though a TPM is,
by nature, supposed to defend against such attacks, the suit says.
Want to stay in the loop on class actions that matter to you? Sign
up for ClassAction.org's free weekly newsletter here.
The lawsuit alleges that HP, rather than implement a new piece of
hardware to make sure its devices were compatible with Microsoft's
security checks for Windows 11, allowed AMD to develop a piece of
code that would announce itself to the operating system as a
trusted platform module. Ultimately, HP's cost-minded solution has
made the threat of firmware attacks worse, the suit contends.
The filing charges that the AMD fTPM design defect and the issues
it causes have significantly and perhaps totally impaired the value
of consumers' HP laptops and desktops, which the case argues are
"unfit for their intended use" and "uniquely vulnerable to firmware
attacks."
"Despite this -- and despite growing complaints about the
performance of the AMD-based HP computers in HP forums and across
the Internet -- HP has done nothing to fix or replace its defective
computers," the complaint relays.
This is not what Microsoft asked for, lawsuit says
In June 2021, Microsoft, in response to a stark uptick in firmware
attacks, decided to require as a precondition to running its
Windows 11 operating system a specific piece of hardware designed
to "separate sensitive cryptographic and other security-related
resources from the main CPU and system memory," the filing relays.
This part is known as a trusted platform module (TPM).
The case says that because a TPM is kept separate from a device's
CPU, it could protect vital security resources from being exposed
in a firmware attack, including the kind whereby a hacker can
compromise the computer before the operating system loads. With
this setup, even if a system's CPU, memory and operating system are
attacked, "the secrets stored in the TPM would remain safe," the
complaint explains.
With this requirement from Microsoft came a new, significant and
"potentially burdensome" redesign on HP's part to ensure that its
PCs were compatible with the newest version of Windows, the case
says.
Unfortunately, in response to the task, HP turned to AMD to develop
and implement a "defeat device" to game Windows 11's security
checks and ensure it met Microsoft's TPM requirement, the suit
claims. This "defeat device" -- most commonly a piece of equipment
(typically found in the auto industry) that can sense when a
machine is being tested and ensure it meets relevant testing
benchmarks -- was not a piece of hardware as Microsoft required but
rather "a piece of code that announced itself to the system (and
critically, to Windows 11) as a ‘TPM,'" the lawsuit states.
According to the suit, the fTPM was implemented as part of the
platform security processor (PSP) subsystem, which is included
within the AMD CPU package.
"The PSP had direct access to sensitive and privileged CPU and
memory resources, and as such, so did the fTPM module AMD had
incorporated within it," the suit explains.
With this design, the lawsuit says, the co-processor that ran the
subsystem would be additionally stressed as it would have to share
resources and memory with the fTPM. Unfortunately for consumers,
the suit alleges, the splitting of the subsystem's "scarce
resources" hampered a number of firmware-based systems that ran as
part of the PSP – including the software that enables the
decryption of streaming video and audio.
"Not only did AMD's fTPM design ironically implement a security
module designed to prevent firmware attacks in the firmware itself,
it did so in a way that exposed sensitive system resources to the
fTPM," the case reads.
The fTPM within HP's AMD devices not only failed to accomplish its
sole purpose for being a TPM -- that is, to reduce the "risk and
effect" of firmware attacks -- but has also compromised the PSP
subsystem, the lawsuit claims. This means that a firmware attack
could potentially compromise all of the security-sensitive
resources of the system given HP conveniently grouped them into one
software-based module, per the case.
According to the filing, the fTPM ultimately allowed HP to avoid
the "major hassle" of shipping new hardware with its AMD-based
computers to make them work with Windows 11 – at consumers'
expense.
Then there's the video/audio stuttering
The case links the alleged HP stuttering issue to the company's
decision to implement the fTPM as part of the PSP, which could
potentially delay the function of other systems needed for a user
to, for instance, stream a video from Netflix, play a video game or
join a work video call.
"The result was the catastrophic stuttering of playback on HP
PCs with AMD Ryzen and Athlon processors. Reports flooded online
forums and YouTube channels describing HP and other AMD-based PCs
stuttering when playing back video, when playing audio, or both.
The stuttering also affected video conferencing -- a staple in the
post-pandemic work-from-home environment. And, with respect to
gamers, whom HP directly targets for PC sales, the defective HP PCs
would stutter when playing video games. In YouTube video after
YouTube video, users showed the stuttering effect in various
popular computer games being run (or attempting to run) on HP and
other AMD-based computers. Despite HP's promises that its AMD-based
PCs were suitable for ordinary uses, such as watching video,
listening to music, video conferencing, and playing games, its AMD
PCs stuttered during each of these baseline applications."
Rather than acknowledge the problem, HP has instead continued to
specifically market its AMD desktop and laptop computers as
particularly suited for watching videos, videoconferencing, and
gaming, and as fortified by "enterprise-level" security, the case
states.
Indeed, HP has allegedly done nothing in response to a swell of
consumer complaints about the stuttering problem or exposure to
firmware-based cyberattacks.
Who's covered by the HP lawsuit?
The suit looks to represent all individuals, business associations,
entities or corporations that purchased HP notebooks or desktops
with AMD Ryzen or AMD Athlon processors with fTPM modules from
January 1, 2019 to the present.
My HP computer stutters. How do I get involved in the case?
There's typically nothing you need to do to join a class action
case when it's initially filed. If the lawsuit proceeds and
eventually settles, that's when the people covered by the suit,
called "class members," would need to act, usually by filing a
claim online or by mail.
These types of cases, however, tend to take time to work their way
through the legal process, usually toward a settlement, dismissal
or arbitration.
If you own an HP laptop or desktop with an AMD Ryzen or AMD Athlon
processor, or just want to stay in the loop on class action lawsuit
and settlement news, sign up for ClassAction.org's free weekly
newsletter. [GN]
HOME PARTNERS: Faces Sewall Suit Over Illegal Lease Provisions
--------------------------------------------------------------
Barry Sewall, individually and on behalf of all others similarly
situated, Plaintiff v. Home Partners Holdings LLC, SFR Acquisitions
I LLC, and OPVHHJV LLC, d/b/a Pathlight Property Management,
Defendants, Case No. 27-CV-22-10389 (Minn. 4th Judicial Dist.,
Hennepin Cty., July 12, 2022) arises from the Defendants'
violations of the Minnesota Statutes section 325F.69, subdivision
1, by engaging in fraud, false pretenses, false promises,
misrepresentation, misleading statements, and deceptive practices
with the intent that others rely thereon in connection with the
rental or sale of their residential properties.
The Defendants collectively own, lease, and manage approximately
17,000 homes in 70 markets located in 32 states. Cementing their
alter ego relationship, Pathlight states on its website that both
Pathlight and Home Partners "are proud to offer" lease programs to
prospective tenants.
According to the complaint, the Defendants engage in unlawful lease
provisions that deceive and mislead consumers into believing they
(a) cannot negotiate their monthly rental rates or cannot negotiate
the purchase prices of the home, while forcing them to sign
agreements stating they in fact did, (b) must make all repairs to
their rental homes, and (c) must pay for renters' insurance or use
Defendants' hand-picked "liability coverage" every month to cover
the maintenance of and physical damage to Defendants' rental
homes.
As a direct and proximate result of Defendants' conduct, Defendants
have received substantial benefits to which they have no
entitlement, at Plaintiff's and the Proposed Class Members'
expense, including maintenance costs, rent hikes, insurance
premiums and other expenses.
Plaintiff Sewall rented a Home Partners-owned home in Minnetonka,
Minnesota, beginning on July 29, 2016. He was looking to rent a
home, and rented through Defendants because their representations
led him to believe they would provide a quality home that would not
require substantial upkeep or maintenance, based upon the assurance
of quality and inspection provided by Defendants.
Home Partners Holdings LLC operates as a real estate owners and
developers.[BN]
The Plaintiff is represented by:
Anne T. Regan, Esq.
Lindsey L. Larson, Esq.
HELLMUTH & JOHNSON, PLLC
8050 West 78th Street
Edina, MN 55439
Telephone: (952) 941-4005
E-mail: aregan@hjlawfirm.com
llabellelarson@hjlawfirm.com
- and -
Scott Harris, Esq.
Gary Klinger, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
900 W. Morgan St.
Raleigh, NC 27603
Telephone: (919) 600-5000
E-mail: gklinger@milberg.com
sharris@milberg.com
HONDA DEVELOPMENT: Tripoli Seeks Unpaid Wages Under FLSA, IMWL
--------------------------------------------------------------
TREVOR TRIPOLI, individually and on behalf of all others similarly
situated v. HONDA DEVELOPMENT & MANUFACTURING OF AMERICA, LLC, Case
No. 1:22-cv-01488-TWP-MG (S.D. Ind., July 26, 2022) seeks to
recover the unpaid wages and other damages owed by Honda to all its
workers, as occasioned by the unpaid wages, along with liquidated
damages, penalties, interest, and other remedies provided by the
Fair Labor Standards Act, the Indiana Minimum Wage Law, and the
Indiana Wage Payment Statute.
Like many other companies across the United States, Honda's
Kronos-based timekeeping and payroll systems were affected by a
service outage in beginning in December 2021. That outage led to
problems in timekeeping and payroll throughout Honda's
organization.
As a result, Honda's workers who were not exempt from overtime
under federal and state law were not paid for all overtime hours
worked and/or were not paid their proper overtime premium on time,
if at all, for all overtime hours worked during and after the
Kronos outage. Trevor Tripoli is one such Honda worker, says the
suit.
Honda could have easily implemented a system to accurately record
time and properly pay non-exempt hourly and salaried employees
until issues related to the outage were resolved. Instead, Honda
pushed the cost of the Kronos outage onto the most economically
vulnerable people in its workforce. Honda made the economic burden
of the Kronos outage fall on front-line workers -- average
Americans -- who rely on the full and timely payment of their wages
to make ends meet, the suit added.
Tripoli brings this lawsuit to recover these unpaid overtime wages
and other damages owed by Honda to himself and Honda’s other
non-overtime-exempt workers, who were the ultimate victims of not
just the Kronos outage, but Honda's decision to make its own
non-exempt employees workers bear the economic burden for the
outage.[BN]
The Plaintiff is represented by:
Matthew S. Parmet, Esq.
PARMET PC
3 Riverway, Ste. 1910
Houston, TX 77056
Telephone: (713) 999 5228
E-mail: matt@parmet.law
- and -
J. Corey Asay, Esq.
MORGAN & MORGAN
333 W. Vine Street, Suite 1200
Lexington, KY 40507
Telephone: (859) 286 8368
Facsimile: (859) 286 8384
E-mail: CAsay@forthepeople.com
HYUNDAI MOTOR: Faces Suit Over Vehicles' Missing Anti-Theft Devices
-------------------------------------------------------------------
KMBC 9 News reports that an Independence, Missouri attorney has
filed a federal class action lawsuit against Kia and Hyundai in
Missouri and Kansas.
The suits filed on behalf of residents in both states claim the
automakers intentionally didn't install an anti-theft device in
many of their late model vehicles to save money.
"We frankly were surprised, a modern manufacturer, particularly one
that sells so many cars, would so utterly fail to include the
common safety devices that are found on other models," Ken McClain,
the attorney who filed the suits, said.
Specifically, the suits claim Kia and Hyundai didn't install
immobilizers in their vehicles, Kia in 2011-2021 models and Hyundai
in 2015-2021 models.
Immobilizers read a computer chip in either a key or fob to allow
the engine to start.
"Because of this lack of an immobilizer problem exists on both
Kia's and Hyundai's, they've become the targets of criminals
because they're easy to steal," McClain said.
The suit claims many of those vehicles provide thieves with part of
the equipment they can use to steal them, a USB cord.
"Considering how many people charge their cell phones in their
cars, the necessary instrument needed to steal a Defective Vehicle
is usually readily available to any thief," the suits claim.
"It's essentially modern-day hot wiring," McClain said.
While none of the plaintiffs in the suits, so far, have had their
vehicles stolen, McClain cites a rash of Kia and Hyundai thefts
throughout the country, including in St. Louis.
He says all owners of the vehicle models in question could be
affected.
"This will have an impact on the re-sale of these cars and also the
insurance rates for these cars," McClain said.
Both Kia and Hyundai issued statements admitting there's a theft
problem with their vehicles.
Both statements also say 2022 models are equipped with
immobilizers.
"Kia America is aware of the rise in vehicle thefts of a subset of
trim levels in your area. All 2022 models and trims have an
immobilizer applied either at the beginning of the year or as a
running change. All Kia vehicles for sale in the U.S. meet or
exceed Federal Motor Vehicle Safety Standards," the Kia statement
said.
"Hyundai Motor America is concerned with the rise in local auto
thefts. The safety and well-being of our customers and the
community is and will remain our top priority. These vehicles meet
or exceed Federal Motor Vehicle Safety Standards and engine
immobilizers are standard equipment on all new Hyundai vehicles,"
the Hyundai statement said.
The suits call on Kia and Hyundai to either fix or replace the
models without the immobilizers.
"Car manufacturers are reluctant to do recalls because of the cost
and avoid them generally until they're mandated by governments.
These problems are fixable and should be fixed," McClain said.
In addition to the statements, Kia and Hyundai provided toll-free
phone lines for customers to ask questions or express concerns.
For Kia:
1 (800) 333-4542
For Hyundai:
1 (800) 633-5151 [GN]
IC SYSTEM: Amended Scheduling Order Entered in Lahu Class Suit
--------------------------------------------------------------
In the class action lawsuit captioned as VALBONA LAHU, on behalf of
herself and those similarly situated, v. I.C. SYSTEM, INC.; and
JOHN DOES 1 to 10, Case No. 2:20-cv-06732-CCC-ESK (D.N.J.), the
Hon. Judge Edward Kiel entered an amended scheduling order as
follows:
1. Fact discovery deadline is to November 15, 2022
remain open through to:
2. All affirmative expert reports December 27, 2022
shall be served by:
3. All responsive expert reports January 13, 2023
shall be served by:
4. Depositions of all experts February 17, 2023
shall be completed by:
5. Motion for class certification March 30, 2023
shall be filed by:
IC System is an Accounts Receivable Management provider and one of
the largest collection companies in North America.
A copy of the Court's order dated Aug. 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3vK2BUw at no extra charge.[CC]
INTERACTIVE EDUCATION: Class Cert. Bid Hearing Moved to Oct. 24
---------------------------------------------------------------
In the class action lawsuit captioned as JENNIFER MCMANUS, as
parent and natural guardian of, KYLE MCMANUS, a minor, and QUYNH
ANH HUU NGUYEN, individually and on behalf of all others similarly
situated, v. INTERACTIVE EDUCATION CONCEPTS, INC. d/b/a IMPROV
LEARNING and IMPROV SAFETY, a California corporation; and DOES 1 to
10, inclusive, Case No. 2:21-cv-06559-MWF-ADS (C.D. Cal.), the Hon.
Judge Michael W. Fitzgerald entered an order granting joint
stipulation to extend deadline to hear motion for class
certification:
-- The Order re Jury Trial issued by this Court on December
9, 2021, shall be modified so that the last day to hear
Motion for Class Certification is moved from August 29,
2022, to October 24, 2022.
-- All other dates and deadlines shall remain the same.
Interactive Education was founded in 2013. The company's line of
business includes Schools offering miscellaneous educational
courses.
A copy of the Court's order dated Aug. 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3bxGx8C at no extra charge.[CC]
JOHNCOL INC: Fischer Sues Over Delivery Drivers' Unpaid Wages
-------------------------------------------------------------
Blake Fischer, on behalf of himself and those similarly situated,
Plaintiff v. JohnCol, Inc.; Allen Hertzman; Joseph Hertzman; John
Doe 1–10; Doe Corporation 1–10, Defendants, Case No.
2:22-cv-02779-SDM-EPD (S.D. Ohio, July 13, 2022) arises from the
Defendants' alleged policy and practice of underpaying Plaintiff in
violation of the Fair Labor Standards Act, the Ohio Constitution
and the Ohio Prompt Pay Act.
According to the complaint, the Defendants repeatedly and willfully
violated federal and state laws by failing to adequately reimburse
delivery drivers for their delivery-related expenses, thereby
failing to pay delivery drivers the legally mandated minimum wage
for all hours worked.
The Plaintiff worked for the Defendants as a pizza delivery driver
at the Defendants' Papa John's Pizza stores in Ohio from
approximately November 2021 until March 2022.
JohnCol, Inc. operates several Papa John's Pizza franchises in
Ohio.[BN]
The Plaintiff is represented by:
Andrew R. Biller, Esq.
Andrew P. Kimble, Esq.
Riley E. Kane, Esq.
BILLER & KIMBLE, LLC
8044 Montgomery Road, Suite 515
Cincinnati, OH 45236
Telephone: (513) 202-0710
Facsimile: (614) 340-4620
E-mail: abiller@billerkimble.com
akimble@billerkimble.com
rkane@billerkimble.com
JUAN DE LA CRUZ: Alvarado Sues Over Manual Laborers' Unpaid Wages
-----------------------------------------------------------------
EDUARDO I. ALVARADO, on behalf of himself, individually, and on
behalf of all others similarly-situated, Plaintiff v. JUAN DE LA
CRUZ, individually, d/b/a UNITED LANDSCAPIG PRO, Defendant, Case
No. 7:22-cv-06509 (S.D.N.Y., August 1, 2022) alleges the Defendant
of willful violations of the minimum and overtime provisions of the
Fair Labor Standards Act and the New York Labor Law.
The Plaintiff has worked for the Defendant as an all-purpose manual
laborer from in or around February 2019 to December 6, 2021, except
for January 2020 and January 2021.
The Plaintiff asserts that throughout his employment with the
Defendant, the Defendant failed to pay him and others similarly
situated manual laborers overtime and minimum wages as required
under the FLSA and the NYLL. Specifically, the Defendant routinely
required them to work more than 40 hours per week. Instead of
paying them at the statutorily-required overtime rate for all hours
worked in excess of 40 per week, the Defendant paid them on a
bi-weekly basis and at a flat daily rate regardless of the number
of hours that they worked in a day or in a week. At other times,
the Defendant simply failed to pay them any wages. Moreover, the
Defendant failed to provide them with any wage notice at the time
of their hire or with any wage statement on each payday, the
Plaintiff says.
The Plaintiff brings this complaint as a collective action on
behalf of himself and all other similarly situated manual laborers
against the Defendant, seeking to recover all unpaid wages and any
short fall between wages paid; as well as liquidated damages and
any other statutory penalties as recoverable under the FLSA and the
NYLL; reasonable attorneys' fees, costs and disbursements incurred;
pre- and post-judgment interest; and other relief as the Court
finds necessary and proper.
Juan De La Cruz owns and operates a Wenchester County-based
landscaping and handyman services company, d/b/a United Landscaping
Pro. [BN]
The Plaintiff is represented by:
Danielle Petretta, Esq.
Alexander T.Coleman, Esq.
Michael J. Borrelli, Esq.
BORRELLI & ASSOCIATES, P.L.L.C.
910 Franklin Avenue, Suite 200
Garden City, NY 11530
Tel: (516) 248-5550
Fax: (516) 248-6027
KIA MOTORS: Faces Suit Over Vehicles' Missing Anti-Theft Devices
----------------------------------------------------------------
KMBC 9 News reports that an Independence, Missouri attorney has
filed a federal class action lawsuit against Kia and Hyundai in
Missouri and Kansas.
The suits filed on behalf of residents in both states claim the
automakers intentionally didn't install an anti-theft device in
many of their late model vehicles to save money.
"We frankly were surprised, a modern manufacturer, particularly one
that sells so many cars, would so utterly fail to include the
common safety devices that are found on other models," Ken McClain,
the attorney who filed the suits, said.
Specifically, the suits claim Kia and Hyundai didn't install
immobilizers in their vehicles, Kia in 2011-2021 models and Hyundai
in 2015-2021 models.
Immobilizers read a computer chip in either a key or fob to allow
the engine to start.
"Because of this lack of an immobilizer problem exists on both
Kia's and Hyundai's, they've become the targets of criminals
because they're easy to steal," McClain said.
The suit claims many of those vehicles provide thieves with part of
the equipment they can use to steal them, a USB cord.
"Considering how many people charge their cell phones in their
cars, the necessary instrument needed to steal a Defective Vehicle
is usually readily available to any thief," the suits claim.
"It's essentially modern-day hot wiring," McClain said.
While none of the plaintiffs in the suits, so far, have had their
vehicles stolen, McClain cites a rash of Kia and Hyundai thefts
throughout the country, including in St. Louis.
He says all owners of the vehicle models in question could be
affected.
"This will have an impact on the re-sale of these cars and also the
insurance rates for these cars," McClain said.
Both Kia and Hyundai issued statements admitting there's a theft
problem with their vehicles.
Both statements also say 2022 models are equipped with
immobilizers.
"Kia America is aware of the rise in vehicle thefts of a subset of
trim levels in your area. All 2022 models and trims have an
immobilizer applied either at the beginning of the year or as a
running change. All Kia vehicles for sale in the U.S. meet or
exceed Federal Motor Vehicle Safety Standards," the Kia statement
said.
"Hyundai Motor America is concerned with the rise in local auto
thefts. The safety and well-being of our customers and the
community is and will remain our top priority. These vehicles meet
or exceed Federal Motor Vehicle Safety Standards and engine
immobilizers are standard equipment on all new Hyundai vehicles,"
the Hyundai statement said.
The suits call on Kia and Hyundai to either fix or replace the
models without the immobilizers.
"Car manufacturers are reluctant to do recalls because of the cost
and avoid them generally until they're mandated by governments.
These problems are fixable and should be fixed," McClain said.
In addition to the statements, Kia and Hyundai provided toll-free
phone lines for customers to ask questions or express concerns.
For Kia:
1 (800) 333-4542
For Hyundai:
1 (800) 633-5151 [GN]
KINDRED HEALTHCARE: Parrot Seeks Unpaid OT Wages Under FLSA, IWPS
-----------------------------------------------------------------
JENNIFER PARROTT, Individually and on behalf of all others
similarly situated v. KINDRED HEALTHCARE, LLC, Case No.
3:22-cv-00384-RGJ (W.D. Ky., July 27, 2022) seeks to recover unpaid
overtime compensation, liquidated damages, and attorneys' fees and
costs pursuant to the Fair Labor Standards Act of 1938, and unpaid
straight time wages pursuant to the Indiana Frequency of Wage
Payments Act.
According to the complaint, Kindred's regular practice,including
during weeks when Plaintiff and the Putative Class Members worked
in excess of 40 hours, was (and is) to automatically deduct a
30-minute meal-period from Plaintiff and the Putative Class
Members' daily time even though they regularly performed
compensable work "off the clock" through their respective
meal-period breaks.
Jennifer Parrott was employed by Kindred in Indiana during the
relevant time periods. Ms. Parrott did not receive compensation for
all hours worked or the correct amount of overtime compensation for
all hours worked in excess of 40 hours per workweek.
The FLSA Collective Members are those current and former hourly
employees who were employed by Kindred at any time from July 27,
2019, through the final disposition of this matter, and have been
subjected to the same illegal pay system under which Ms. Parrott
worked and was paid.
Kindred operates dozens of healthcare facilities providing
healthcare services to its patients throughout the United States.
To provide its services, Kindred employed (and continues to employ)
numerous hourly workers -- including Plaintiff and the individuals
that make up the putative or potential class. The Plaintiff and the
Putative Class Members were employed by Kindred as non-exempt
hourly employees who had a 30-minute lunch automatically deducted
from their daily time.[BN]
The Plaintiff is represented by:
Clif Alexander, Esq.
Austin W. Anderson, Esq.
ANDERSON ALEXANDER , PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Telephone: (361) 452-1279
Facsimile: (361) 452-1284
E-mail: clif@a2xlaw.com
austin@a2xlaw.com
- and -
Anne L. Gilday, Esq.
THE LAWRENCE FIRM, PSC
606 Philadelphia Street
Covington, KY 41011
Telephone: (859) 578-9130
Facsimile: 859-578-1032
E-mail: anne.gilday@lawrencefirm.com
KIRKLAND'S STORES: Miles Seeks to Stay Action Pending Appeal
------------------------------------------------------------
In the class action lawsuit captioned as ARIANA MILES,
individually, and on behalf of other members of the general public
similarly situated and on behalf of other aggrieved employees
pursuant to the California Private Attorneys General Act, v.
KIRKLAND'S STORES, INC., Case No. 5:18-cv-01559-JWH-SHK (C.D. Cal),
the Plaintiff asks the Court to stay the action pending resolution
of her appeal of the order denying class certification.
Once the status of her class claims are resolved, the parties
respectfully request that the Court hold a status conference, at
which the Parties may submit a joint proposed case schedule so that
the court may set new dates for the final pre-trial conference and
trial, along with new deadlines related to trial preparation, the
Plaintiff says.
On March 22, 2022, the Court denied the Plaintiff's motion for
class certification and directed t5he Plaintiff and the Defendant
to file a joint status report with a jointly proposed case schedule
by April 1, 2022. On April 15, 2022, this Court vacated the Final
Pretrial Conference previously set for May 27, 2022, and the Jury
Trial previously set for June 13, 2022. On May 26, 2022, the Ninth
Circuit granted the Plaintiff/Petitioner's permission to appeal the
district court's March 22, 2022 order denying class action
certification.
Appellant Ariana Miles' opening brief is due September 6, 2022.
There is outstanding discovery pending in this case, but the
Parties have agreed to extend time to respond to discovery while
the appeal is pending. The Court has set a Case Management
Conference on September 16, 2022 at 11:00 a.m.
On May 2018, Miles filed her Complaint in Riverside County Superior
Court, thereby commencing this putative class action against
Defendant Kirkland's Stores, Inc. and Doe Defendants. In her
Complaint, Miles asserts the following 11 causes of action:
-- (1) Violation of California Labor Code section 510 and
1198 (Unpaid Overtime);
-- (2) Violation of California Labor Code sections 226.7 and
512(a) (Unpaid Meal Period Premiums);
-- (3) Violation of California Labor Code section 226.7
(Unpaid Rest Period Premiums);
-- (4) Violation of California Labor Code sections 1194,
1197, and 1197.1 (Unpaid Minimum Wages);
-- (5) Violation of California Labor Code sections 201 and
202 (Final Wages Not Timely Paid);
-- (6) Violation of California Labor Code section 204 (Wages
Not Timely Paid During Employment);
-- (7) Violation of California Labor Code section 226(a)
(Non-Compliant Wage Statements);
-- (8) Violation of California Labor Code section 1174(d)
(Failure To Keep Requisite Payroll Records);
-- (9) Violation of California Labor Code sections 2800 and
2802 (Unreimbursed Business Expenses);
-- (10) Violation of California Business & Professions Code
sections 17200, et seq.; and
-- (11) Violation of California Labor Code section 2698, et
seq. (California Labor Code Private Attorneys General
Act of 2004).
Kirkland's operates as a home furnishing store.
A copy of the Plaintiff's motion to certify class dated Aug. 1,
2022 is available from PacerMonitor.com at https://bit.ly/3bDBm75
at no extra charge.[CC]
The Plaintiff is represented by:
Carolyn H. Cottrell, Esq.
David C. Leimbach, Esq.
Caroline N. Cohen, Esq.
SCHNEIDER WALLACE COTTRELL
KONECKY LLP
- and -
Edwin Aiwazian, Esq.
Arby Aiwazian, Esq.
Lawyers for Justice, PC
KRIGER LAW: Almada Seeks Initial Approval of Class Settlement
-------------------------------------------------------------
In the class action lawsuit captioned as JEFFREY A. ALMADA, on
behalf of himself and all other similarly situated class members,
v. KRIGER LAW FIRM, A.P.C., Case No. 3:19-cv-02109-TWR-MDD (S.D.
Cal.), the Plaintiff will move the Court for an order granting
preliminary approval of the proposed class action settlement
reached with defendant Kriger Law, pursuant to Fed. R. Civ. P. 23,
concerning alleged violations of Rosenthal Fair Debt Collection
Practices Act (RFDCPA) and the Fair Debt Collection Practices Act
(“FDCPA).
The Plaintiff will move the Court to certify for settlement
purposes a California only Class, pursuant to Fed. R. Civ. P.
23(b)(3) and the proposed Settlement Agreement, defined as
follows:
"All persons with addresses within the State of California
who received a Form Letter from Defendant between November 4,
2018 and November 4, 2019."
Kriger Law Firm is doing business in the common interest
development industry.
A copy of the Plaintiff's motion dated July 29, 2022 is available
from PacerMonitor.com at https://bit.ly/3OYPnKs at no extra
charge.[CC]
The Plaintiff is represented by:
Abbas Kazerounian, Esq.
Pamela E. Prescott, Esq.
KAZEROUNI LAW GROUP, APC
245 Fischer Avenue, Unit D1
Costa Mesa, CA 92626
Telephone: (800) 400-6806
Facsimile: (800) 520-5523
E-mail: ak@kazlg.com
pamela@kazlg.com
LAKE COUNTY JAIL: Hearing on Class Cert Bid Set for Sept. 20
------------------------------------------------------------
In the class action lawsuit captioned as Lake County Inmates v.
Lake County Jail, Case No. 9:22-cv-00127-DWM (D. Mont.), the Hon.
Judge Donald W. Molloy entered an order that a hearing on the
Plaintiffs motion for class certification is set for September
20,2022 at 9:00 a.m. at the Russell Smith Courthouse in Missoula,
Montana.
The Lake County Jail provides for the confinement of those
arrested, held for pretrial detention, and those convicted and
sentenced to jail by the courts.
A copy of the Court's order dated Aug. 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3P3POTL at no extra charge.[CC]
LOCKHEED MARTIN: Court Extends Class Cert. Discovery to Sept. 30
----------------------------------------------------------------
In the class action lawsuit captioned as Grayson v. Lockheed Martin
Corporation, Case No. 6:20-cv-01770 (M.D. Fla.), the Hon. Judge Roy
B. Dalton, Jr. entered an order extending class certification
discovery to September 30, 2022.
The deadline for filing class certification and related Daubert
motions is extended to October 28, 2022, Judge Dalton says.
The nature of suit states Torts --- Personal Injury -- Product
Liability.
Lockheed Martin is an American aerospace, arms, defense,
information security, and technology corporation with worldwide
interests.[CC]
M PIZZA: McCumbee Seeks Minimum Wages for Drivers Under FLSA
------------------------------------------------------------
Troy McCumbee, On behalf of himself and those similarly situated v.
M Pizza, Inc.; Michael Clise; Margaret Clise; Robert Clise; Doe
Corporation 1-10; John Doe 1-10, Case No. 3:22-cv-00128-GMG (N.D.W.
Va., July 27, 2022) seeks appropriate monetary, declaratory, and
equitable relief based on the Defendants' willful failure to
compensate Plaintiff and similarly situated individuals with
minimum wages as required by the Fair Labor Standards Act, the West
Virginia wage and hour laws, and for unjust enrichment.
The Defendants repeatedly and willfully violated the Fair Labor
Standards Act and West Virginia wage and hour laws by failing to
adequately reimburse delivery drivers for their delivery-related
expenses, thereby failing to pay delivery drivers the legally
mandated minimum wages for all hours worked. All delivery drivers
at the Defendants' Domino's stores, including Plaintiff, have been
subject to the same or similar employment policies and practices,
says the suit.
The Plaintiff is an "employee" of all the Defendants as defined by
the FLSA and West Virginia wage and hour laws.
The Defendants operate several Domino's Pizza locations in West
Virginia. The Defendants also operate several Domino's Pizza
locations in Maryland, Pennsylvania, and Virginia.[BN]
The Plaintiff is represented by:
Walt Auvil, Esq.
THE EMPLOYMENT LAW CENTER PLLC
1208 Market Street
Parkersburg, WV 26101
Telephone: (304) 485-3058
Facsimile: (304) 485-6344
E-mail: auvil@theemploymentlawcenter.com
theemploymentlawcenter@gmail.com
- and -
Andrew R. Biller, Esq.
Andrew P. Kimble, Esq.
Laura E. Farmwald, Esq.
BILLER & KIMBLE, LLC
www.billerkimble.com
8044 Montgomery Rd., Ste. 515
Cincinnati, OH 45209
Telephone: (513) 715-8712
Facsimile: (614) 340-4620
E-mail: abiller@billerkimble.com
akimble@billerkimble.com
lfarmwald@billerkimble.com
MATRIX ABSENCE: Samanatha Seeks to Certify Class of Examiners
-------------------------------------------------------------
In the class action lawsuit captioned as Tina Weeks, Michael
McDonald, and Cassandra Magdaleno, individually and on behalf of
others similarly situated, v. Matrix Absence Management, Inc., an
Arizona Company, Case No. 2:20-cv-00884-SPL (D. Ariz.), the
Plaintiff Samantha moves the Court for an Order certifying a class
under Rule 23(a) and 23(b)(3) consisting of the following:
"All individuals employed by Matrix as "Telephone Claims
Examiners" based out of Matrix's Portland, Oregon office
(whether in-person or remotely) from May 6, 2018 to the
Present through final disposition of this Action."
The "Telephone Claims Examiners" include individuals who
worked in the following positions: Claims Examiner-LOA;
Claims Examiner-STD; or Claims Examiner-AMS, including all
levels (I, II, or Senior).
Matrix Absence provides absence management services.
In addition, the Plaintiff moves for an Order appointing his
counsel to serve as Class Counsel
A copy of the Plaintiffs' motion to certify class dated July 29,
2022 is available from PacerMonitor.com at https://bit.ly/3Jtv0E5
at no extra charge.[CC]
The Plaintiff is represented by:
Jack Siegel, Esq.
SIEGEL LAW GROUP PLLC
4925 Greenville, Suite 600
Dallas, TX 75206
Telephone: (214) 790-4454
E-mail: Jack@siegellawgroup.biz
MCCARTHY BURGESS: Court Dismisses Rosenberg Amended Complaint
-------------------------------------------------------------
In the class action lawsuit captioned as NAFTALI ROSENBERG,
individually and on behalf of all others similarly situated, v.
MCCARTHY, BURGESS & WOLFF, INC., Case No. 1:21-cv-02199-MKB-RLM
(E.D.N.Y.), the Court entered an order granting the Defendant's
motion to dismiss the Amended Complaint for lack of standing and
failure to state a claim pursuant to Rules 12(b)(1) and 12(b)(6) of
the Federal Rules of Civil Procedure
The Court also dismisses the Amended Complaint without prejudice
for lack of subject matter jurisdiction.
The Plaintiff is a New York State resident and a "consumer" as
defined by the Fair Debt Collection Practices Act (FDCPA).
The Defendant is a debt collection company and a "debt collector"
as defined by the FDCPA.
Prior to June 19, 2020, Plaintiff incurred a debt obligation to
Verizon Wireless from "a mobile telephone debt" incurred for
"personal, household or family purposes."
The Plaintiff alleges the debt obligation is "consumer-related" and
therefore a "debt" as defined by the FDCPA. Verizon initially
contracted with MRS BPOto collect the debt.
On May 1, 2020, MRS "sent Plaintiff a collection letter" seeking a
balance of $575.56, plus $57.55 in "Verizon Collection Fees," for a
total of $633.11. Verizon later contracted with Defendant to
collect the debt. Although the "express terms of the governing
contract only allow for one application of a collection fee,"
Defendant sent Plaintiff a separate collection letter seeking the
same balance of $575.56, plus the new amount of $103.60 in "fees
and other charges," for a total of $679.16.
The Plaintiff alleges that Defendant "seeks to collect an amount
that misrepresents the debt" because Defendant "was not expressly
authorized by the agreement" between Plaintiff and Verizon or
permitted by law to charge $103.60 in "excessive" fees.
A copy of the Court's order dated Aug. 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3Qnkgt8 at no extra charge.[CC]
MDL 1917: DPPs Win Class Certification in CRT Antitrust Suit
------------------------------------------------------------
In the class action lawsuit captioned as MDL No. 1917 In Re:
Cathode Ray Tube (CRT) Antitrust Litigation, Case No.
4:07-cv-05944-JST (N.D. Cal.), the Hon. Judge Jon S. Tigar entered
an order granting motion for class certification on behalf of:
"All persons and entities who, between March 1, 1995 and
November 25, 2007, directly purchased a CRT Product in the
United states from any Defendant or any subsidiary or
affiliate thereof, or any co-conspirator or any subsidiary or
affiliate thereof."
Excluded from the class are defendants, their parent
companies, subsidiaries or affiliates, any co-conspirators,
all governmental entities, and any judges or justices
assigned to hear any aspect of this action.
The Court said, "Direct Purchaser Plaintiffs (DPPs) have satisfied
all of the requirements of Rule 23(a) and 23(b)(3) of the Federal
Rules of Civil Procedure. Accordingly, their motion for class
certification is granted. The following entities are appointed as
class representatives:
-- Arch Electronics, Inc.; Crago, d/b/a Dash Computers, Inc.;
-- Meijer, Inc., and Meijer Distribution, Inc.;
-- Nathan Muchnick, Inc.;
-- Princeton 16 Display Technologies, Inc.;
-- Radio & TV Equipment, Inc.; Studio Spectrum, Inc.; and
Wettstein and Sons, Inc., d/b/a Wettstein’s. Saveri & Saveri,
Inc., is appointed as class counsel. The parties shall appear for a
case management conference on August 30, 2022, at 19 9:30 a.m. A
joint case management statement is due by August 23, 2022. The
statement shall include a proposed schedule for the remainder of
the DPP actions, including a deadline for the
parties to propose a plan for disseminating notice to the class."
The Plaintiffs allege that Irico and others conspired to fix
prices, allocate market share, and restrict output of products
containing CRTs from March 1995 to November 2007. DPPs -- direct
purchasers of CRTs and finished products from the Defendants, their
co-conspirators, and/or their subsidiaries – have settled with
all Defendants except for Irico on a classwide basis.
A copy of the Court's order dated Aug. 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3BI2Va8 at no extra charge.[CC]
META PLATFORMS: Ohio Selected as Lead Plaintiff in Class Action
---------------------------------------------------------------
Lydia Taylor at Spectrum News reports that a judge has selected
Ohio to lead a class-action lawsuit against social media giant
Facebook, which claims the company, now called Meta, misled users
and investors about how its algorithm promoted dangerous content to
users, resulting in a $3 million loss for an Ohio retirement
system.
What You Need To Know
-- Judge Jon S. Tigar of the U.S. District Court of Northern
California ruled Ohio to lead the lawsuit due to having the largest
financial interest in the case
-- The lawsuit claims Facebook promoted harmful content with its
algorithm, but misled users about it
* A story posted by the Wall Street Journal unveiled Facebook's
strategy behind the algorithm, causing its stock to plummet
-- Since the Ohio Public Employees Retirement System invested
stock into Facebook, it suffered a loss of $3 million according to
Attorney General Dave Yost
-- The lawsuit aims to recover the losses
Judge Jon S. Tigar of the U.S. District Court of Northern
California ruled Ohio to lead the lawsuit due to having the largest
financial interest in the case.
Attorney General Dave Yost—who will represent the state, Ohio
Public Employees Retirement System and Facebook investors—claims
in the lawsuit that through April 21 to Oct. 21 of last year,
Facebook and its executives "violated federal securities laws by
purposely misleading the public about the negative effects its
products have on the health and well-being of children and the
steps the company has taken to protect the public. Those
misrepresentations boosted the price of Facebook stock, harming
investors," according to Yost's office.
The Wall Street Journal released a story on Facebook's strategy in
September 2021, and a month later, a former Facebook employee
released internal documents, accusing the company of choosing
profits over safety.
The details caused Facebook's stock to plummet, draining OPERS of
around $3 million. In the lawsuit, OPERS said it purchased stock in
2021, and claims it suffered damages due to Facebook violating
federal security laws.
Yost hopes to recover the losses, but also hopes to create change
in Facebook's internal framework.
"The magic of free markets doesn't happen if the marketplace is
filled with false information," Yost said in a statement. "Markets,
including the stock market, are the most efficient means of
allocating capital. But the rational, free flow of capital by
millions of individual decisions is distorted by false information,
especially deliberately false information. This lawsuit will serve
to protect investors and the market as a whole."
The lawsuit is against Facebook, founder Mark Zuckerberg, Chief
Financial Officer David Wehner and Vice President of Global Affairs
Nick Clegg.
Yost said "if a recovery is obtained in the class action suit,
other retirement systems and Facebook investors can file claims to
participate in the recovery." [GN]
MITSUI OSK: Could Face Class Action in Mauritius Over Oil Spill
---------------------------------------------------------------
Adam Corbett of Trade Winds reports that a class action is being
lined up by 1,700 victims of a giant oil spill from the bulk
carrier Wakashio off the coast of Mauritius in 2020.
The claimants' cause has been taken up by left wing political
movement Rezistans ek Alternativ (ReA) and representative Ashok
Subron.
The move comes after the owner of the 203,000-dwt Wakashio (built
2007), Japan's Okiyo Navigation -- a subsidiary of Nagashiki
Shipping -- limited its liability under international conventions
to $16.9m.
It is unclear at this stage which party the action will be brought
against, or the total sum claimants are seeking.
Some reports have suggested the target of the claim will be Okiyo
Navigation and its protection and indemnity insurer the Japan P&I
Club.
Local newspaper Le Quotidien suggested it will be the vessel's
charterer, Mitsui OSK Lines, one of the world's largest shipping
companies with much deeper financial resources than the vessel's
owner.
A Mauritius court has already found the master and chief officer
were responsible for the navigational errors, which led to the
grounding of the vessel.
However, claimants are also looking to a preliminary Japanese
safety report into the disaster, which highlighted the mistakes
made by the crew, to back their case.
In the report, the crew said they sailed dangerously close to the
Mauritius coastline to secure a mobile phone connection.
According to the report, the decision to divert was pre-planned and
the crew admitted they had taken similar actions in the past.
The crew were ill-equipped to sail close to the Mauritius coastline
as they did not have detailed paper charts.
The claimants may have to prove a higher degree of negligence on
behalf of the crew if they are to successfully bring a claim in
excess of the limitation of liability.
Overseas aid
Since the accident, MOL has been providing assistance for the local
community to help it recover.
The Japanese government has also provided overseas aid.
The Wakashio grounded on the Mauritius coastline on 25 July 2020.
More than 1,000 tonnes of fuel oil spilt from the bulk carrier
after it grounded. The Mauritius coastline and coral reefs were
damaged, while the local fishing and tourism industries were also
affected.
The forward section of the vessel was scuttled at sea while a
year-long wreck removal operation dismantled the aft section. [GN]
NEBRASKA: Court Denies Bid to Certify Class in Hanes v. DCS
-----------------------------------------------------------
In the case, ELVIS HANES, Plaintiff v. SCOTT FRAKES, et al.,
Defendants, Case No. 8:22CV156 (D. Neb.), Judge Richard G. Kopf of
the U.S. District Court for the District of Nebraska denies the
Plaintiff's motions for preliminary injunction, for hearing, to
appear by telephone, to compel production, and for class
certification.
The Plaintiff requests the Court to order the Nebraska Department
of Correctional Services (NDCS) to remove from his institutional
file, the Outpatient Healthy Lives Program [O-HELP] and any other
program that uses the Dialectic Behavioral Therapy [DBT] skills"
and to require the Nebraska Board of Parole "to hold a parole
review of the plaintiff and preclude them from considering his
non-participation in [O-HELP] or any programming recommendation
that uses the DBT skills, or to show cause why a hearing should not
be granted to the plaintiff at the earliest available
opportunity."
The Plaintiff also requests a court hearing, but "Federal Rule of
Civil Procedure 65 does not require a hearing to be held when the
Court denies a motion for preliminary injunction."
Both sides have presented written evidence as well as briefs, and
there is no showing that further evidence would be introduced at a
hearing or that oral argument would be beneficial. The Plaintiff
has filed a "motion to compel production of documents and
electronic records" in advance of a hearing on his motion for
preliminary injunction, but has not demonstrated any necessity for
bypassing normal discovery procedures, Judge Kopf holds. An order
setting a case progression schedule will be entered soon, after
which time discovery can commence.
When evaluating whether to issue a preliminary injunction, a
district court should consider four factors: (1) the threat of
irreparable harm to the movant; (2) the state of the balance
between this harm and the injury that granting the injunction will
inflict on other parties; (3) the probability that the movant will
succeed on the merits; and (4) the public interest."
In the case, Judge Kopf finds that none of these factors favors the
Plaintiff. He says, the Plaintiff cannot demonstrate a threat of
irreparable harm because he "does not have a protected, federal due
process right to parole." As the Plaintiff has no constitutional
right to parole, being kept in prison pursuant to his criminal
sentence does not allege an irreparable injury. The Plaintiff does
not allege he is being kept in prison beyond the expiration of his
sentence. He suffers no cognizable injury as a result. Without a
finding of irreparable injury, a preliminary injunction should not
be issued." Granting the Plaintiff the preliminary injunctive
relief he seeks would interfere with the orderly operation of
Nebraska's correctional system and, in the Plaintiff's own words,
"would set legal precedent and open the courts for a flood of civil
actions."
There is little likelihood that the Plaintiff will succeed on the
merits of his First Amendment Establishment Clause claim, Judge
Kopf adds. He says, to prevail, the Plaintiff must prove that
O-HELP is coercive and that the object of the coercion is religious
rather than secular. Participation in the program is not mandated
by Nebraska law. The alleged religious aspect of O-HELP is that the
DBT skills used in the program are "psychological and behavioral
translations of meditation practices from Eastern spiritual
training." But according to the declaration of Dr. Jeff Melvin,
Chief Psychologist for Sexual Offense Services at NDCS and
administrator of the program, O-HELP "is a clinical treatment
program designed for lowering sexual recidivism risk" which "does
not promote, endorse or require any participants to affirm or hold
a particular religious view."
The states have "substantial interests in reducing recidivism, and
in promoting reintegration and positive citizenship by parolees."
This public interest would not be served by granting the
Plaintiff's request for a preliminary injunction.
Finally, the Plaintiff's motion for class certification is denied
because Judge Kopf holds that a pro se plaintiff who is not an
attorney cannot maintain a class action. Every court that has
considered the issue has held that a prisoner proceeding pro se is
inadequate to represent the interests of his fellow inmates in a
class action.
A full-text copy of the Court's July 27, 2022 Memorandum & Order is
available at https://tinyurl.com/5uspefw6 from Leagle.com.
NIELSEN HOLDINGS: Settles Securities Class Action Suit for $73-Mil.
-------------------------------------------------------------------
Inside Radio reports that a federal court has approved the terms of
a settlement between Nielsen and the Public Employees' Retirement
System of Mississippi over a years-old class action complaint filed
against the measurement giant. Nielsen agreed to pay $73 million to
resolve the dispute over allegedly false and misleading statements
it made about the outlook of its Buy segment (now "Global Connect,"
which was sold in the first quarter of 2021), its preparedness for
changes in global data privacy laws and its reliance on third-party
data.
The lawsuit addressed actions taken against Nielsen in August and
September of 2018, which were consolidated in April 2019 with the
Public Employees' Retirement System of Mississippi as lead
plaintiff. The complaint claimed the publicly traded company
violated certain provisions of the Securities Exchange Act of
1934.
In addition to Nielsen, the complaints named company officers as
defendants, including former Chief Executive Mitch Barns and former
Chief Financial Officer Jamere Jackson.
In its quarterly 10-Q report filed Wednesday with the Securities
and Exchange Commission, Nielsen says the settlement was approved
by U.S. Court in the Southern District of New York on July 20 and
that it expected the $73 million settlement to be paid by its
insurance carriers. [GN]
NISSAN NORTH: Initial Case Management Order Entered in Losapio
--------------------------------------------------------------
In the class action lawsuit captioned as JAMES LOSAPIO, JR.,
KATHLEEN B. LOSAPIO, and PAUL BIEWALD, individually and on behalf
of similarly situated individuals, v. NISSAN NORTH AMERICA, INC.,
Case No. 3:22-cv-00072 (M.D. Tenn.), the Hon. Judge Eli J.
Richardson entered an initial case management order as follows:
-- The parties shall complete all June 30, 2023
written discovery by:
-- Any motions to amend or to add November 8, 2022
parties shall be filed no later
than:
-- Deadline to file Motion for October 20, 2023
Class Certification:
-- Plaintiffs' expert disclosures October 20, 2023
and reports due for any experts
to be relied upon in support of
Motion for Class Certification:
-- Deadline for Plaintiffs to November 20, 2023
produce class certification
experts for deposition:
-- Deadline to file Opposition to January 15, 2024
Motion for Class Certification:
-- NNA's expert disclosures and January 15, 2024
reports due for any experts to
be relied upon in Opposition to
Motion for Class Certification:
-- Deadline for NNA to produce class February 15, 2024
certification experts for
deposition:
-- Deadline to file Reply in March 15, 2024
support of Motion for Class
Certification
-- Class Certification hearing: TBD
Nissan North America, Inc., doing business as Nissan USA, is the
North American headquarters, and a wholly owned subsidiary of
Nissan Motor Corporation of Japan.
A copy of the Court's order dated Aug. 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3JDlr5l at no extra charge.[CC]
NURSEFINDERS LLC: Underpays Nursing Assistants, Walker Suit Says
----------------------------------------------------------------
LATOYA HONEY WALKER, on behalf of herself and the putative Class
Members; Plaintiff v. NURSEFINDERS, LLC, AMN SERVICES, LLC. and
DOES 1-100, inclusive; Defendants, Case No. 3:22-cv-04084 (N.D.
Cal., July 12, 2022) arises from the Defendants' unlawful labor
policies and practices in violation of the California Labor Code
and the California Business and Professions Code.
The complaint arose from the Defendants' unlawful conduct of: (1)
failing to pay Plaintiff and putative Class Members minimum wage;
(2) failing to pay Plaintiff and putative Class Members overtime
wages; (3) failing to provide or make available to Plaintiff and
putative Class Members the meal periods to which they are entitled
by law, and failing to pay premium compensation payment for
non-compliant meal breaks; (4) failing to authorize and permit rest
periods, and failing to pay premium compensation payment for
non-compliant rest periods; (5) failing to reimburse Plaintiff and
putative Class Members for business expenses; (6) failing to
provide Plaintiff and putative Class Members with accurate itemized
wage statements; (7) failing to timely pay all wages due upon
separation from employment; and (8) and engaging in unfair business
practices.
The Plaintiff seeks damages, penalties, and interest to the full
extent permitted by the California Labor Code and the applicable
Industrial Welfare Commission Wage Orders, as well as other relief
requested herein.
The Plaintiff was employed by Defendants as a certified nursing
assistant from August 6, 2019, to January 16, 2021.
NurseFinders, LLC is a healthcare employment agency which provides
medical staff to facilities throughout the United States.[BN]
The Plaintiff is represented by:
Carolyn H. Cottrell, Esq.
Ori Edelsten, Esq.
Michelle S. Lim, Esq.
SCHNEIDER WALLACE COTTRELL KONECKY LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
Facsimile: (415) 421-7105
E-mail: ccottrell@schneiderwallace.com
oedelstein@schneiderwallace.com
mlim@schneiderwallace.com
PENNSYLVANIA: Cmmw. Court Affirms Arbitration Award in PSCOA v. DOC
-------------------------------------------------------------------
In the case, Department of Corrections, Petitioner, v. Pennsylvania
State Corrections Officers Association, Respondent, Case No.
1173C.D.2021 (Pa. Cmmw.), Judge Ellen Ceisler of the Commonwealth
Court of Pennsylvania issues a Memorandum Opinion affirming the
Sept. 26, 2021 Arbitration Award.
The Award sustained in part a grievance filed on behalf of the
Pennsylvania State Corrections Officers Association and directed
the Commonwealth of Pennsylvania, Department of Corrections to: (1)
add a "rover" in the B Unit at the State Correctional Institution
at Greene on the 6:00 a.m. to 2:00 p.m. and 2:00 p.m. to 10:00 p.m.
shifts; and (2) conduct at least three random searches in the B
Unit each calendar year.
PSCOA and DOC are parties to a collective bargaining agreement
(CBA) covering a bargaining unit consisting of certain employees of
DOC and the Commonwealth of Pennsylvania, Department of Human
Services. Corrections Officer 1 Patrick Raygor, a member of the
bargaining unit, was assaulted by an inmate at SCI-Greene on Jan.
2, 2020, while working the 2:00 p.m. to 10:00 p.m. shift.
The inmate who attacked Officer Raygor had been "convicted of
first-degree murder and sentenced on Jan. 30, 2015 to life
imprisonment." According to testimony presented at the arbitration
hearing, the inmate "engaged in the assault because his pending
court appeal of his sentence was recently rejected and he was high
on K-2 and had been 'disrespected' earlier by Sergeant Comer," who
was also injured in the attack.
Following this incident, PSCOA filed a class action grievance on
behalf of Officer Raygor and other bargaining unit members. The
Grievance Report averred: DOC is violating the CBA by not showing
due regard for staff safety. On Jan. 2, 2020 Officer Raygor was
alone on a housing unit when he was brutally assaulted. SCI-Greene
staffs only one officer on each pod which led to Officer Raygor's
attack carrying on for over two minutes before anyone became
aware.
As a remedy, PSCOA requested, inter alia, that its members "be made
whole," that DOC be required to give due regard for officer safety
in compliance with the CBA, that DOC assign additional "rover"
officers on all housing units at SCI-Greene on the 6:00 a.m. to
2:00 p.m. and 2:00 p.m. to 10:00 p.m. shifts, and "all other
appropriate relief."
After unsuccessful attempts to resolve the matter through the
grievance procedure set forth in the CBA, the parties submitted the
matter to arbitration pursuant to Section 903 of the Pennsylvania
Public Employee Relations Act (PERA), Act of July 23, 1970, P.L.
563, as amended, 43 P.S. Section 1101.903, and Article 35 of the
CBA. Arbitrator Christopher E. Miles held an evidentiary hearing on
May 4, 2021, to determine whether DOC failed to give due regard to
the safety of its employees in violation of Article 33, Section 22
of the CBA. On Sept. 26, 2021, the Arbitrator issued his Award,
sustaining in part PSCOA's grievance. He found that DOC failed to
give due regard to the safety of its employees in the B Unit at
SCI-Greene, in violation of Article 33, Section 22 of the CBA.
On Oct. 26, 2021, DOC filed a Petition for Review of the Award with
the Court. DOC also requested that the Arbitrator stay his award
pending disposition of its Petition for Review, which he denied. On
Dec. 1, 2021, DOC filed an Application for Supersedeas with the
Court, which the latter denied on Jan. 7, 2022, after oral
argument.
On appeal, DOC asserts that the Arbitrator's Award is not
rationally derived from the parties' CBA. Specifically, it contends
that the Arbitrator exceeded his authority under the CBA by
infringing on the right of DOC's management to direct its
operations and workforce and by not confining his Award to the
precise issue submitted for arbitration.
First, DOC asserts that the Award violates the CBA because it
orders DOC to add an additional officer as a "rover" in the B Unit
and to conduct a minimum number of random searches, thereby
infringing upon DOC's organizational structure and the direction of
its operations and workforce. Judge Ceisler opines however that
these CBA provisions, when read together and in their entirety,
demonstrate that DOC's managerial rights are not unfettered.
Article 33, Section 22 limits the managerial rights outlined in
Article 2, Section 1 by requiring DOC to give "due regard" for
officer safety in directing its workforce and by giving the
arbitrator broad authority to remedy a violation if he determines
that DOC failed to give "due regard" for officer safety.
The Arbitrator exercised his authority under Article 33, Section 22
of the CBA to fashion a remedy that he believed would best ensure
the safety of the corrections officers in the B Unit going forward.
In light of the deference, Judge Ceisler must give the Arbitrator's
Award under the essence test, she cannot conclude that the Award
"indisputably and genuinely is without foundation in, or fails to
logically flow from, the parties' CBA."
Judge Ceisler also rejects DOC's assertion that the portion of the
Award directing DOC to conduct a minimum number of searches in the
B Unit violates Article 35, Section 2 of the CBA. The issue before
the Arbitrator was "whether DOC at SCI-Greene, and more
specifically on the B Unit at the facility, failed to give due
regard to the safety of its employees in violation of Article 33,
Section 22 of the CBA." The Arbitrator determined, based on the
credible evidence of record, that an increase in both staffing and
random contraband searches was necessary to remedy the unsafe
conditions for corrections officers in the B Unit, as evidenced by
an inmate's attack on Officer Raygor. At the time of the attack,
the inmate was under the influence of a synthetic drug and used
homemade weapons to repeatedly stab Officer Raygor.
Judge Ceisler holds that the portion of the Award directing DOC to
conduct additional contraband searches in the B Unit was within the
precise issue before the Arbitrator -- namely, whether DOC failed
to give due regard for officer safety in the direction of its
workforce. Furthermore, despite PSCOA's request that the Arbitrator
mandate additional safety measures for all housing units at
SCI-Greene to protect the officers' safety, the Arbitrator
specifically limited his remedy to the B Unit, where Officer Raygor
was brutally assaulted. The Award did not extend to any other
housing unit at SCI-Greene.
Judge Ceisler concludes that the Award was narrowly tailored to
remedy the proven safety violation and, therefore, did not violate
the parties' CBA. Accordingly, because she concludes that the
Arbitrator's Award was rationally derived from, and drew its
essence from, the parties' CBA, she affirms the Award.
A full-text copy of the Court's July 27, 2022 Memorandum Opinion is
available at https://tinyurl.com/2p9646ms from Leagle.com.
PETSMART INC: Former Pet Groomer Files Suit Over Unlawful Scheme
----------------------------------------------------------------
ProtectBorrowers.org reports that on July 28, 2022, BreAnn Scally,
a former PetSmart pet groomer filed a groundbreaking class action
lawsuit against the retail pet supply giant, alleging that the firm
is engaged in a scheme to trap trainee pet groomers in their
low-wage jobs by levying thousands of dollars in abusive and
unenforceable debts against them. These illegal debts arise from
Training Repayment Agreement Provisions (TRAPs)--contracts that put
workers on the hook to repay employers for costs associated with
worker training or education. Although these predatory contract
terms have existed for decades, TRAPs have become more common
across the economy, as companies look for new ways to undermine
worker bargaining power. Ms. Scally is represented by Towards
Justice and Jubilee Legal, with support from the Student Borrower
Protection Center (SBPC).
The lawsuit alleges that PetSmart uses a TRAP to limit groomers
from seeking out better working conditions, locking low-wage
workers for years into high-volume groomer jobs that can be
grueling and dangerous. For groomers who quit within two years of
training, PetSmart may use debt collectors to pursue them for
training debts that can total more than $5,000.
The complaint alleges that, whether PetSmart's TRAPs are analyzed
under employment or consumer law, they are illegal. If the training
PetSmart provides its employees is primarily job training for
PetSmart's own benefit, then employment law prevents that cost from
being passed off on workers. And if the training provides groomers
with transferable skills for personal use, then PetSmart is
operating an unapproved for-profit college illegally in California,
and seeking to collect on an unlawful and unenforceable debt.
Either way, the effect is that workers may be trapped in their jobs
against their will, unable to exercise their fundamental right to
control who they work for.
A copy of the complaint in Scally v. PetSmart, filed today in
Superior Court of the state of California, is available here.
A copy of a sample PetSmart TRAP is available
https://protectborrowers.org/wp-content/uploads/2022/07/PetSmart-TRAP_Redacted.pdf
"PetSmart needs to come up with a better way for employees to want
to become better groomers instead of trapping them with unfair
debt," said BreAnn Scally, a former PetSmart groomer in Salinas,
California and the plaintiff in Scally v. PetSmart. "I had gotten
my credit score up, and now I have to start all over again. It's
brought me back down to square one."
"PetSmart is just another company cynically engineering new forms
of student debt as a tool to trap workers," said SBPC executive
director Mike Pierce. "Rather than compete on wages and benefits in
a tight labor market, PetSmart turned to contractual tricks to lock
its employees into a hamster wheel of financial harm. Today's
action should send a clear warning to anyone interested in turning
on-the-job-training into a debt trap: keep your paws off working
people's livelihoods."
"The ability to move between jobs for better working conditions or
higher pay is one of the best tools workers have to protect
themselves and seek out a better life," said Rachel Dempsey, an
attorney at Towards Justice. "Debt traps like PetSmart's exploit
employer power to punish workers for exercising their basic right
to choose where they work."
"PetSmart runs its Grooming Academy like an old-fashioned company
store, keeping its employees on a short leash by keeping them in
debt," said Sparky Abraham, founder at Jubilee Legal. "PetSmart's
employee debt TRAP is unlawful, and it's past time for them to
clean up their act." [GN]
POINT PARK: Court Extends Case Management Deadlines in Figueroa
---------------------------------------------------------------
In the class action lawsuit captioned as RAFAEL FIGUEROA, KAHLIL
CABBLE, TY' ANTHONY SCOTT and ryan petty, on behalfof themselves
and others similarly situated v. POINT PARK UNIVERSITY, Case No.
2:20-cv-01484-LPL (W.D. Pa.), the Hon. Judge Lisa Pupo Lenihan
entered an order granting the joint motion to extend case
management deadlines:
All non-expired deadlines identified in the November 22, 2021
Order, and amended in the April 19,2022 Order, are extended as
follows:
1. All discovery related to class certification shall be
completed not later than November9, 2022.
2. A status/settlement conference will be held on November
15, 2022.
Point Park University is a private university in Pittsburgh,
Pennsylvania.
A copy of the Court's order dated Aug. 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3BN3K1o at no extra charge.[CC]
PRAKASHSINGH PARMAR: Underpays Store Employees, Couch Suit Claims
-----------------------------------------------------------------
CANDY N. COUCH, individually and on behalf of others similarly
situated, Plaintiff v. PRAKASHSINGH PARMAR d/b/a HOLTON FOOD MART,
KENT MERCANTILE, CHELSEA GENERAL STORE, DILLSBORO IGA and CROSS
PLAINS STORE, Defendant, Case No. 4:22-cv-00099-JMS-DML (S.D. Ind.,
August 1, 2022) brings this complaint as a collective action
against the Defendant for its alleged illegal practice that
violated the Fair Labor Standards Act.
The Plaintiff was employed by the Defendant from approximately
April 2018 until May 11, 2022 as a cashier and store employee at
the Holton Food Mart and Kent Mercantile, often working at both
locations during the same day.
The Plaintiff claims that although she and other similarly situated
employees routinely work well in excess of 40 hours each work week,
the Defendant paid them "straight time" only without overtime rate.
The Defendant willfully failed to pay them overtime compensation at
the rate of one and one-half times their regular rates of pay for
all hours worked in excess of 40 per workweek. In addition, the
Defendant did not reimburse them in any way for their mileage
driving for the Defendant's business, specifically mid-day work
travel from one store to a next store and time driving to pick up
or drop off merchandise between the Defendant's stores. The
Defendant also failed to keep wage records and failed to provide
pay stubs and any written statements of their hours worked, wages
paid, or other terms and conditions of employment. The Plaintiff
also claims that she was wrongfully terminated by the Defendant
after he reported to the Defendant that she suffered from a
work-related injury.
The Plaintiff seeks all available damages for herself and all other
similarly situated employees, including all unpaid wages, all
underpaid wages, any available liquidated, punitive and/or treble
damages, all attorney’s fees, costs and expenses, plus any other
damage to which they may be entitled pursuant to the FLSA.
Prakashsingh Parmar owns and operates a series of connected
groceries, convenience stores and gas stations in Southern Indiana.
[BN]
The Plaintiff is represented by:
Robert P. Kondras, Jr. Esq.
HASSLER KONDRAS MILLER LLP
100 Cherry Street
Terre Haute, IN 47807
Tel: (812) 232-9691
Fax: (812) 234-2881
E-mail: kondras@hkmlawfirm.com
- and –
Brian R. Dummy, Esq.
BUNGER & ROBERTSON
211 South College Ave.
Bloomington, IN 47404
Tel: (812) 332-9295
Fax: (812) 331-8808
E-mail: bdrummy@lawbr.com
PROVIDENCE ST. JOSEPH: Spencer Seeks Equal Access to Deaf Patients
------------------------------------------------------------------
KATHLEEN SPENCER; JASON VIGLIANCO; and MANDY RODRIGUEZ, Washington
residents, on behalf of themselves and all others similarly
situated, v. PROVIDENCE ST. JOSEPH HEALTH, a Washington non-profit
corporation; and WESTERN HEALTHCONNECT, a Washington non-profit
corporation, Case No. 2:22-cv-01033 (W.D. Wash., July 26, 2022)
alleges that Defendants have consistently failed to provide the
Plaintiffs and other Deaf patients with the effective communication
necessary to ensure full and equal access to the benefits of the
Defendants' healthcare services in violation of the Americans with
Disabilities Act.
The Plaintiffs bring this lawsuit to remedy the Defendants'
unlawful discrimination against Deaf patients who seek healthcare
services at Defendants' numerous healthcare facilities in Western
Washington, including facilities directly operated by Defendants'
subsidiaries, Providence Health & Services, Providence Health &
Services -- Washington, Swedish, Swedish Edmonds, PacMed Clinics,
and Providence Health & Services -- Western Washington.
Effective communication in a healthcare facility is of paramount
importance to ensure that doctors, nurses, and other medical
professionals can fully understand the information patients are
trying to express about their health condition; that patients can
fully understand the information and advice that such medical
professionals are trying to provide; and that fully informed
decisions can be made about care for medical conditions. Lack of
prompt and effective communication access can result in a host of
harms, ranging from inadequate healthcare treatment to injury or
death, the suit says.
The Defendants have repeatedly violated these requirements for
effective communication with Deaf patients, by denying Deaf
patients sign language interpreters either in person or through
effective VRI technology and by refusing necessary modifications to
policies and procedures. Without effective communication, Deaf
Providence patients have had to undergo serious medical procedures
and make decisions for care without getting meaningful answers to
questions. They have been subjected to unequal and demeaning
treatment due to their disabilities and have been excluded from
fully participating in their medical care due to the lack of
effective communication, the suit added.
The proposed class consists of and all Deaf persons who have sought
or will seek healthcare services at any Providence facility in
Providence's Puget Sound Region.
Providence St. Joseph Health is a Washington non-profit
organization with headquarters in Renton, Washington. PSJH operates
a healthcare system made up of various member entities, including
Providence Health & Services.
Providence Health & Services is the sole corporate member of
Providence -- Washington, which owns, operates, and/or manages
Providence Regional Medical Center Everett in Everett, Washington;
and is a co-corporate member of Providence Health & Services --
Western Washington.
Western HealthConnect is a Washington non-profit corporation with
headquarters in Renton, Washington. Western HealthConnect is the
sole corporate member of Swedish Health Services, Swedish Edmonds,
and PacMed Clinics; and is a co-corporate member of Providence
Health & Services -- Western Washington.[BN]
The Plaintiffs are represented by:
Meredith J. Weaver, Esq.
DISABILITY RIGHTS ADVOCATES
2001 Center St., Fourth Floor, Berkeley, CA 94704
Telephone: (510) 664-8644
Facsimile: (510) 665-8511
E-mail: MWeaver@dralegal.org
- and -
Moloy K. Good, Esq.
GOOD LAW CLINIC, PLLC
7017 NE Highway 99, Suite 106, Vancouver, WA 98665
Telephone: (360) 694-4530
Facsimile: (360) 694-4659
E-mail: moloy@goodlawclinic.com
PTC INC: Khan, et al., Seek Final Approval of Class Settlement
--------------------------------------------------------------
In the class action lawsuit captioned as KRISTAL M. KHAN, MICHELLE
R. BALLINGER, and GEORGE A. CRAAN, individually and on behalf of
all others similarly situated, v. PTC INC., THE BOARD OF DIRECTORS
OF PTC INC., THE INVESTMENT COMMITTEE OF PTC INC., and JOHN DOES
1-30, Case No. 1:20-cv-11710-WGY (D. Mass), the Plaintiffs ask the
Court to enter an order:
1. Granting final approval to the class action settlement in
this action on the terms of the Class Action Settlement
Agreement, fully executed on December 17, 2021 and
previously filed with the Court on December 17, 2021;
2. Certifying the Class as defined in the Settlement
Agreement;
3. Appointing Named Plaintiffs as Class Representatives and
Plaintiffs' Counsel as Class Counsel under FED. R. CIV.
23(g); and
4. Finding that the manner in which the Settlement Class was
notified of the Settlement was the best practicable under
the circumstances and adequately informed the Settlement
Class members of the terms of the Settlement, how to lodge
an objection and obtain additional information; and
The Plaintiffs are participants in the PTC 401(k) Savings Plan
PTC Inc. is an American computer software and services company
founded in 1985 and headquartered in Boston, Massachusetts.
A copy of the Plaintiffs' motion dated Aug. 1, 2022 is available
from PacerMonitor.com at https://bit.ly/3BHJ4HZ at no extra
charge.[CC]
The Plaintiffs are represented by:
Mark K. Gyandoh, Esq.
Gabrielle Kelerchian, Esq.
Donald R. Reavey, Esq.
CAPOZZI ADLER, P.C.
312 Old Lancaster Road
Merion Station, PA 19066
Telephone: (610) 890-0200
Facsimile: (717) 233-4103
E-mail: markg@capozziadler.com
gabriellek@capozziadler.com
donr@capozziadler.com
RAMIREZ J E DRYWALL: Pancheo Sues Over Unpaid Overtime Wages
------------------------------------------------------------
FERMIN PACHEO, Plaintiff v. RAMIREZ J E DRYWALL Inc. d/b/a Ramirez
E Drywall and Jose Ramirez, individually, Defendants, Case No.
1:22-cv-01746-NRN (D. Colo., July 14, 2022) is brought on behalf of
the Plaintiff and those similarly situated who are currently or
were formerly employed by Defendants and were not paid overtime in
compliance with the Fair Labor Standards Act and the Colorado
Minimum Wages of Workers Act.
The Plaintiff was employed by the Defendants from January 2021
until February 2022. The Plaintiff renovated houses on behalf of
Defendants.
Ramirez J E Drywall Inc. is a Denver, Colorado-based contractor
company.[BN]
The Plaintiff is represented by:
Jacob Aronauer, Esq.
THE LAW OFFICES OF JACOB ARONAUER
1490 Lafayette St., #304
Denver, CO 80218
RAYMOND JAMES: Opinions and Testimony of Douglas Schulz Excluded
----------------------------------------------------------------
In the class action lawsuit captioned as KIMBERLY NGUYEN v. RAYMOND
JAMES & ASSOCIATES, INC., Case No. 8:20-cv-00195-CEH-AAS (M.D.
Fla.), the Hon. Judge Charlene Edwards Honeywell entered an order
that:
1. The Defendant's Daubert Motion to Exclude Opinions and
Testimony of Douglas J. Schulz is granted;
2. The Defendant's Daubert Motion to Exclude Opinions and
Testimony of Arthur Olsen is granted, and
3. The Plaintiff's Daubert Motion to Exclude Reports and
Opinions of Peter J. Klouda is granted-in-part and denied-
in-part. Klouda's opinions regarding the reasonableness of
the account fees will be stricken, and thus, not
considered by the Court. The motion is in all other
respects denied.
Raymond James & Associates, Inc. operates as a wealth management
firm.
A copy of the Court's order dated Aug. 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3zZoO3u at no extra charge.[CC]
REALPAGE INC: Agrees to Pay $9.73-M to Settle FCRA Claims
---------------------------------------------------------
TopClassActions.com reports that RealPage agreed to pay over $9.73
million to resolve claims that it violated the federal Fair Credit
Reporting Act (FCRA) by allowing incorrect sex offender registry
data on tenant screening reports.
The class action lawsuit settlement benefits individuals who were
subject to a RealPage report between June 14, 2017, and March 2,
2021, where the report included a record from a sex offender
registry with the record matching the report subject based on the
birth date range, but where further review shows a differing birth
date.
RealPage offers rental property solutions including property
management, sales, marketing, screening, revenue management and
more. Tenants attempting to rent an apartment or house may have
their background screened during the application process through
RealPage.
However, RealPage may violate federal reporting laws by including
incorrect information on tenant background checks.
A 2019 class action lawsuit claims the company includes information
from sex offender registries on certain background checks despite
these reports not being associated with the report subject.
The plaintiff in the case says he was attempting to rent an
apartment in New Jersey when a rental company ordered a background
report on him from RealPage. RealPage allegedly portrayed the
plaintiff as a registered sex offender in Indiana -- despite this
report belonging to an entirely different person sharing the same
name. This inaccurate report cost the plaintiff the apartment he
wanted to lease, the class action lawsuit contends.
According to the plaintiff, the inaccurate reporting would not have
happened if RealPage did its due diligence and looked into the
record further.
Upon further inspection, the sex offender record included on his
background report allegedly contains a different middle name, date
of birth and physical description. The plaintiff claims he was able
to debunk this report in mere minutes.
The background check class action lawsuit claims RealPage's conduct
violates the FCRA. RealPage maintains its policies are lawful and
argues that full birth dates are not available to the public
through many state's sex offender registries. However, the company
agreed to pay more than $9.73 million to resolve the FCRA class
action lawsuit.
Under the terms of the RealPage lawsuit settlement, class members
can collect a cash payment.
Each class member will receive an equal share of the settlement
fund. Exact payments may vary, but class counsel estimates each
participating class member will receive around $300.
The deadline for exclusion and objection is Aug. 1, 2022.
The final approval hearing for the settlement is scheduled for
Sept. 21, 2022.
In order to receive a payment from the RealPage lawsuit settlement,
Class Members must submit a valid claim form by Aug. 1, 2022.
Who's Eligible: The class action lawsuit settlement benefits
individuals who were subject to a RealPage report between June 14,
2017, and March 2, 2021, where the report included a record from a
sex offender registry with the record matching the report subject
based on the birth date range, but where further review shows a
differing birth date.
Potential Award: Around $300
Proof of Purchase: No proof of purchase applicable
Claim Form: TO FILE A CLAIM, CLICK
https://www.sorsettlement.com/claimform.aspx
Claim Form Deadline: 08/01/2022
Case Name: Joshua Saylor v. RealPage, Inc., Civil Action No.
1:22-cv-00053, in the U.S. District Court for the Eastern District
of Virginia
Final Hearing: 09/21/2022
Settlement Website: SORSettlement.com
Claims Administrator:
Saylor v. RealPage, Inc.
c/o Settlement Administrator
P.O. Box 16
West Point, PA 19486
800-237-2327
SORSettlement@bm.net
Class Counsel:
E Michelle Drake
John G Albanese
BERGER MONTAGUE PC
Defense Counsel:
Ronald I Raether Jr
David Gettings
TROUTMAN PEPPER HAMILTON SANDERS LLP [GN]
SAFE HOME SECURITY: Grochowski Files TCPA Suit in S.D. Florida
--------------------------------------------------------------
A class action lawsuit has been filed against Safe Home Security,
Inc. The case is styled as Alan Grochowski, individually and on
behalf of all others similarly situated v. Safe Home Security,
Inc., Case No. 2:22-cv-14267-JEM (S.D. Fla., July 26, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Safe Home Security, Inc. -- https://www.safehomesecurityinc.com/ --
is one of the nation's largest residential home security providers
who sells, installs, services, and monitors security, fire, and
CCTV systems in residential and commercial locations.[BN]
The Plaintiff is represented by:
Scott A Bursor, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Phone: (212) 989-9113
Fax: (212) 989-9163
Email: scott@bursor.com
- and -
Stephen Andrew Beck, Esq.
BURSOR & FISHER, P.A.
701 Brickell Ave., Suite 1420
Miami, FL 33131
Phone: (305) 330-5512
Fax: (305) 912-2885
Email: sbeck@bursor.com
SAKS & COMPANY: Court Initially Approves Class Action Settlement
----------------------------------------------------------------
SHAQUILLE STEWART ALEXANDER, individually and on behalf of himself
and all others similarly situated, v. SAKS & COMPANY LLC; SAKS
INCORPORATED, In the class action lawsuit captioned as
Stewart-Alexander v. Saks & Company LLC. et al., Case No.
3:21-cv-02384-VC (N.D. Cal.), the Hon. Judge Vince Chabria entered
an order granting joint motion for preliminary approval of class
and collective settlement, conditional certification of settlement
class, and approval proposed notice of class
action settlement:
1. Preliminary Approval of the Proposed Settlement
The "Joint Stipulation of Class, Collective and PAGA
Action Settlement Agreement" signed by the Parties on June
1, 2022, is preliminarily approved pending a Final
Approval Hearing, except that the UC Berkeley Labor Center
will be the only cy pres recipient. The Court's scrutiny
of the proposed settlement is as rigorous at the
preliminary approval stage as at the final approval stage.
2. Class Certification for Settlement Purposes
Pursuant to Federal Rule of Civil Procedure 23(b)(3), the
Court conditionally certifies, for settlement purposes
only, the following "Settlement Class," which consists of
all Class Members who have not excluded themselves from
the Settlement Class by submitting a timely request for
exclusion in accordance with the requirements set forth in
the Class Notice and the Preliminary Approval Order.
"Class Members" are defined as:
"All current or former non-exempt employees who worked for
Saks & Company, LLC (the "Company"), at a Saks Fifth
Avenue retail store in California, during the Class Period
(April 1, 2017 through preliminary court approval) and
excludes all individuals identified by and included in the
settlement classes, unless they opt-out, as approved by
the court(s) in Alfreda Lewis v. Saks South Coast
Leasehold, LLC; Saks & Company, LLC, Case No. 30-2020-
01143164-CU-OE-CXC, currently pending in California
Superior Court, County of Orange and Maxwell Esposito v.
Saks & Company, LLC, currently pending in California
Superior Court, County of Los Angeles -- Santa Monica,
Case No. 20SMCV01252 ("Lewis/ Esposito Settlement").
However, individuals who are members of the Lewis/Esposito
Settlement but who also worked for the Company at a Saks
Fifth Avenue retail store in California during the Class
Period in a role other than Sales Associate (SAL 102 or
104) and Brand Ambassador (SST100), may participate in
both settlements."
3. Prerequisites for Class Action
Solely for the purposes of settlement, the Court 12 finds
that the prerequisites for a class action under Federal
Rule of Civil Procedure 23(a) are satisfied.
4. Fair Labor Standards Act (FLSA) Claim
The Court finds that the FLSA claims may be released upon
the cashing of an individual's settlement check, and that
the settlement of the FLSA claim is a fair and reasonable
resolution of a bona fide dispute.
5. PAGA Payment
The Court approves the allocation of $20,000 of the Total
Settlement Amount to the PAGA Settlement Amount in
connection with the release of the claim for civil
penalties under the California Labor Code Private
Attorneys General Act of 2004. Pursuant to PAGA, 75%, or
$15,000.00, will be paid to the LWDA, and 25%, or
$5,000.00 will be paid to PAGA Cohort Members. PAGA Cohort
Members may not exclude themselves from the PAGA Release.
6. Appointment of the Class Representatives and Class
Counsel
Pursuant to Federal Rule of Civil Procedure 23(a), the
Court conditionally appoints Plaintiff Shaquille Stewart
Alexander as Class Representative for the Settlement
Class.
7. Settlement Administrator
Simpluris, Inc. is appointed to serve as the settlement
administrator for the purpose of administering the
settlement with reasonable administration costs estimated
not to exceed $14,000 pursuant to the terms set forth in
the Agreement.
8. Notice of Proposed Class Action Settlement
The Court approves the form and content of the Notice of
Class Action Settlement filed at Docket Number 76-1 and
authorizes dissemination of the Notice to Members of the
Settlement Class as required by the Settlement.
Saks & Company operates chain of retail department stores.
A copy of the Court's order dated Aug. 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3BJJNsa at no extra charge.[CC]
SESAME PLACE: Faces $25-Mil. Class Action Suit Over Discrimination
------------------------------------------------------------------
Legendary trial and civil rights attorney William "Billy" Murphy
Jr. and Malcom Ruff of Murphy, Falcon & Murphy, Martell Harris of
the Trial Law Firm, and Jason Duncan of Duncan Legal Group
announced today the filing of a class action lawsuit against the
owners and operators of Sesame Place Philadelphia, SeaWorld Parks
and Entertainment, Inc. and SeaWorld Parks and Entertainment LLC,
for discriminatory practices against African American children.
The lawsuit filed in U.S. District Court for the Eastern District
of Pennsylvania alleges that costumed Sesame Street characters,
"Elmo," "Ernie," "Telly Monster," and "Abby Cadabby" wrongfully
refused to engage with African American children during "Meet and
Greet" events, intentionally discriminating against the youngsters,
while, at the same time, shaking hands, hugging and high-fiving
white children.
"The behavior of Sesame Place's costumed park workers is
reprehensible. Class members, some as young as 5 years old, adore
these characters, and to be shunned by them so brazenly will have a
lasting negative affect on their sense of self-worth. Sadly,
discriminatorily behavior like this knows no bounds and can target
even the most innocent," said Murphy.
The lawsuit alleges class representatives, Quinton Burns and his
five-year-old daughter, Kennedi, traveled from Baltimore to Sesame
Place Philadelphia to celebrate Father's Day, June 18, at the fun
park only to be ignored by costumed characters during "Meet and
Greet" events along with other African American guests. These same
costumed park workers readily engaged with white patrons, according
to the lawsuit.
The class action lawsuit comes on the heels of recent viral video
clips depicting nearly identical behavior directed towards other
Black youth at the park. The lawsuit seeks $25,000,000.00 in
damages from the owners and operators of Sesame Place for civil
rights violations, breach of contract and other causes of action on
behalf of the class, which includes "[a]ll African American persons
who entered contracts with SeaWorld for admission into Sesame
Plaine Philadelphia from July 25, 2018, until the present, and who
suffered disparate treatment from SeaWorld and/or its agents and/or
employees, by their refusal to interact with African American
children while openly interacting with similarly situated white
children."
About Murphy, Falcon & Murphy
Murphy, Falcon & Murphy is a Baltimore-based law firm specializing
in complex civil, criminal, and civil rights litigation. Our
powerhouse legal team has a history of unrelenting dedication to
its clients in Baltimore and across the country. Our team of
seasoned trial lawyers has extensive experience in a wide variety
of cases with success rates that dwarf national averages and is
dedicated to providing smart strategies and creative approaches to
complex litigation. Our team is driven and strategy-focused
--characteristics that have helped us secure more than $900 million
in verdicts and settlements, including over $75 Million in police
cases throughout the country. Our attorneys have won some of the
largest verdicts in high-profile, high-stakes cases in some of the
toughest jurisdictions around the country. The firm represented
Freddie Gray, Jr. and William H. Green, achieving historic
settlements of $6.4 million and $20 million, respectively, for
federal and state civil rights violations that led to their deaths.
[GN]
SHAW FLOORS: Luis Files ADA Suit in S.D. New York
-------------------------------------------------
A class action lawsuit has been filed against Shaw Floors, Inc. The
case is styled as Kevin Yan Luis, individually and on behalf of all
others similarly situated v. Shaw Floors, Inc., Case No.
1:22-cv-06472 (S.D.N.Y., July 29, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Shaw Floors, Inc. -- https://shawfloors.com/ -- supplies carpet,
resilient, hardwood, laminate, tile and stone flooring products and
synthetic turf to residential and commercial markets
worldwide.[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
SIMMONS BANK: Unilaterally Changes Loan Terms, Wexler Suit Says
---------------------------------------------------------------
Eve Wexler, individually and on behalf of a class, Plaintiff v.
Simmons Bank, Defendant, Case No. 1:22-cv-02741-AT-CMS (N.D. Ga.,
July 12, 2022) alleges that the Defendant engages in a practice of
unilaterally changing loan terms in violation of the Truth in
Lending Act.
According to the complaint, the loan agreement between the
Plaintiff and Defendant stated the conditions under which an
increase in Prime Rate would cause an increase in the amount of
interest Plaintiff had to pay. The Bank changed the terms of the
agreement by immediately increasing the amount of interest
Plaintiff had to pay when Prime Rate increased. This error the Bank
miscalculated accrued finance charges which caused the Bank to
require a higher monthly payment than was due according to the
terms of the loan, says the suit.
In breach of the agreement, the Bank raised Plaintiff's interest
rate earlier than it was supposed to causing Plaintiff damages, the
suit added.
Simmons Bank is a banking entity.[BN]
The Plaintiff is represented by:
M. Muffy Blue, Esq.
2455 Woodridge Dr.
Decatur, GA 30033
Telephone: (404) 918-7476
SOCLEAN INC: Ciesla Suit Transferred to W.D. Pennsylvania
---------------------------------------------------------
The case styled as Herbert Ciesla, on behalf of himself and all
others similarly situated v. SoClean Inc., Case No. 1:22-cv-02593
was transferred from the U.S. District Court for the Northern
District of Georgia, to the U.S. District Court for the Western
District of Pennsylvania on July 26, 2022.
The District Court Clerk assigned Case No. 2:22-cv-01068-JFC to the
proceeding.
The nature of suit is stated as Personal Injury: Health
Care/Pharmaceutical Personal Injury Product Liability.
SoClean, Inc. -- https://www.soclean.com/ -- manufactures cleaning
devices. The Company produces automated continuous positive airway
pressure (CPAP) cleaners and sanitizers which improves health
outcomes and quality of life for those suffering from obstructive
sleep apnea and other sleeping disorders.[BN]
The Plaintiff is represented by:
Derek Chad Nuce, Esq.
PASLEY, NUCE, MALLORY & DAVIS, LLC
300 West Gordon Street
P.O. Box 1168
Thomaston, GA 30286
Phone: (706) 646-3200
Fax: (706) 646-2147
Email: cnuce@pnlawgroup.com
SOCLEAN INC: Cohen Suit Transferred to W.D. Pennsylvania
--------------------------------------------------------
The case styled as Elyse Cohen, on behalf of herself and all others
similarly situated v. SoClean Inc., Case No. 1:22-cv-11075 was
transferred from the U.S. District Court for the District of
Massachusetts, to the U.S. District Court for the Western District
of Pennsylvania on July 26, 2022.
The District Court Clerk assigned Case No. 2:22-cv-01074-JFC to the
proceeding.
The nature of suit is stated as Personal Injury: Health
Care/Pharmaceutical Personal Injury Product Liability.
SoClean, Inc. -- https://www.soclean.com/ -- manufactures cleaning
devices. The Company produces automated continuous positive airway
pressure (CPAP) cleaners and sanitizers which improves health
outcomes and quality of life for those suffering from obstructive
sleep apnea and other sleeping disorders.[BN]
The Plaintiff is represented by:
Patrick Vallely, Esq.
SHAPIRO HABER & URMY LLP
2 Seaport Lane, 6th Floor
Boston, MA 02210
Phone: (617) 439-3939
Email: pvallely@shulaw.com
SOCLEAN INC: Harrell Suit Transferred to W.D. Pennsylvania
----------------------------------------------------------
The case styled as Sabrina Harrell, on behalf of herself and on
behalf of all others similarly situated v. SoClean Inc., Case No.
5:22-cv-00571 was transferred from the U.S. District Court for the
Western District of Oklahoma, to the U.S. District Court for the
Western District of Pennsylvania on July 26, 2022.
The District Court Clerk assigned Case No. 2:22-cv-01077-JFC to the
proceeding.
The nature of suit is stated as Contract Product Liability.
SoClean, Inc. -- https://www.soclean.com/ -- manufactures cleaning
devices. The Company produces automated continuous positive airway
pressure (CPAP) cleaners and sanitizers which improves health
outcomes and quality of life for those suffering from obstructive
sleep apnea and other sleeping disorders.[BN]
The Plaintiff is represented by:
Michael E Grant, Esq.
GRANT LAW FIRM
512 NW 12th St
Oklahoma City, OK 73103
Phone: (405) 232-6357
Fax: (405) 232-6358
Email: de1471@coxinet.net
- and -
Rex A Sharp, Esq.
Ruth Anne French-Hodson, Esq.
SHARP LAW, LLP
4820 W. 75th Street
Prairie Village, KS 66208
Phone: (913) 901-0505
Fax: (913) 901-0419
Email: rsharp@midwest-law.com
rafrenchhodson@midwest-law.com
SOCLEAN INC: Humphress Suit Transferred to W.D. Pennsylvania
------------------------------------------------------------
The case styled as Teresa Humphress, George Mayes, Jr., on behalf
of themselves and all others similarly situated v. SoClean Inc.,
Case No. 3:22-cv-00351 was transferred from the U.S. District Court
for the Western District of Kentucky, to the U.S. District Court
for the Western District of Pennsylvania on July 26, 2022.
The District Court Clerk assigned Case No. 2:22-cv-01073-JFC to the
proceeding.
The nature of suit is stated as Contract Product Liability.
SoClean, Inc. -- https://www.soclean.com/ -- manufactures cleaning
devices. The Company produces automated continuous positive airway
pressure (CPAP) cleaners and sanitizers which improves health
outcomes and quality of life for those suffering from obstructive
sleep apnea and other sleeping disorders.[BN]
The Plaintiffs are represented by:
Andrew E. Mize, Esq.
BRANSTETTER, STRANCH & JENNINGS, PLLC
515 Park Avenue
Louisville, KY 40208
Phone: (502) 636-4333
Fax: (502) 636-4342
Email: andrewm@bsjfirm.com
- and -
Danielle L. Perry, Esq.
Gary E. Mason, Esq.
MASON LLP
5101 Wisconsin Ave., Suite 305
Washington, DC 20016
Phone: (202) 429-2290
Fax: (202) 429-2294
Email: gmason@masonllp.com
- and -
J. Gerard Stranch, IV, Esq.
BRANSTETTER, STRANCH & JENNINGS, PLLC
223 Rosa L. Parks Avenue, Suite 200
Nashville, TN 37203
Phone: (615) 254-8801
Fax: (615) 250-3937
Email: gerards@bsjfirm.com
- and -
Ronald Verdell Johnson, IV, Esq.
Russell L. Johnson, Esq.
DEAKLE-JOHNSON LAW FIRM, PLLC
P.O. Box 2072
Hattiesburg, MS 39403
Phone: (601) 544-0631
- and -
Ruth Anne French-Hodson, Esq.
Sarah T. Bradshaw, Esq.
SHARP LAW, LLP
4820 W. 75th St.
Prairie Village, KS 66208
Phone: (913) 901-0505
Fax: (913) 901-0419
Email: rafrenchhodson@midwest-law.com
SOCLEAN INC: Lattimorre Suit Transferred to W.D. Pennsylvania
-------------------------------------------------------------
The case styled as Heather Lattimorre, on behalf of herself and all
others similarly situated v. SoClean Inc., Case No. 3:22-cv-00510
was transferred from the U.S. District Court for the Middle
District of Tennessee, 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-01080-JFC to the
proceeding.
The nature of suit is stated as Other Fraud.
SoClean, Inc. -- https://www.soclean.com/ -- manufactures cleaning
devices. The Company produces automated continuous positive airway
pressure (CPAP) cleaners and sanitizers which improves health
outcomes and quality of life for those suffering from obstructive
sleep apnea and other sleeping disorders.[BN]
The Plaintiff is represented by:
Danielle L. Perry, Esq.
Gary E. Mason, Esq.
MASON LLP
5101 Wisconsin Ave., Suite 305
Washington, DC 20016
Phone: (202) 429-2290
Fax: (202) 429-2294
Email: gmason@masonllp.com
- and -
Lisa A. White, Esq.
GREG COLEMAN LAW PC
800 S. Gay Street, Suite 1100
Knoxville, TN 37929
Phone: (865) 247-0080
Fax: (865) 522-0049
Email: lisa@gregcolemanlaw.com
- and -
Ruth Anne French-Hodson, Esq.
Sarah T. Bradshaw, Esq.
SHARP LAW, LLP
4820 W. 75th St.
Prairie Village, KS 66208
Phone: (913) 901-0505
Fax: (913) 901-0419
Email: rafrenchhodson@midwest-law.com
- and -
Jubal Hamil, Esq.
DEAKLE SHOLTIS & HAMIL
160 Congress Street
Mobile, AL 36603
Phone: (251) 432-6020
Email: jhamil@dshfirm.com
SOCLEAN INC: Perun Suit Transferred to W.D. Pennsylvania
--------------------------------------------------------
The case styled as John Perun, on behalf of himself and all others
similarly situated v. SoClean Inc., Case No. 3:22-cv-00842 was
transferred from the U.S. District Court for the District of
Connecticut, to the U.S. District Court for the Western District of
Pennsylvania on July 26, 2022.
The District Court Clerk assigned Case No. 2:22-cv-01068-JFC to the
proceeding.
The nature of suit is stated as Contract Product Liability.
SoClean, Inc. -- https://www.soclean.com/ -- manufactures cleaning
devices. The Company produces automated continuous positive airway
pressure (CPAP) cleaners and sanitizers which improves health
outcomes and quality of life for those suffering from obstructive
sleep apnea and other sleeping disorders.[BN]
The Plaintiff is represented by:
Joseph P. Guglielmo, Esq.
SCOTT+SCOTT, ATTORNEYS AT LAW, LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
Phone: (212) 223-6444
Fax: (212) 223-6334
Email: jguglielmo@scott-scott.com
SONY CORP: Trejo Files Suit Over Defective PlayStation 5 Consoles
-----------------------------------------------------------------
CHRISTINA TREJO, individually and on behalf of a class of similarly
situated individuals, Plaintiff v. SONY CORPORATION OF AMERICA, a
New York corporation, Case No. 1:22-cv-03603 (N.D. Ill., July 12,
2022) is brought by the Plaintiff, on behalf of a Class of
individuals who purchased PlayStation 5 consoles, seeking damages,
restitution, and injunctive relief against Defendant for
manufacturing, advertising and selling the PS5 consoles with
defect.
According to the complaint, Defendant's PS5 contains a defect that
causes the console to suddenly crash and power down while the user
is playing video games that they purchased. While the PS5 can be
used for many entertainment purposes, playing video games on the
console is its primary function. The Console Defect affects users'
ability to play video games and compromises the primary function
and overall usage of the PS5, says the suit.
Allegedly, the Defendant, who is in control of the manufacturing,
marketing, advertising and sale of its PS5, was aware of the
Console Defect through warranty repair requests, online consumer
complaints, and its own online service resources. However, despite
its knowledge of the Console Defect, Defendant failed to, and
continues to fail to, disclose the defect to consumers prior to
them purchasing the PS5, nor has Defendant taken any substantial
action to remedy the problem, the suit added.
Sony Corp. is multinational world leader in the manufacturing and
sales of electronics, including gaming consoles and related
products.[BN]
The Plaintiff is represented by:
Eugene Y. Turin, Esq.
Jordan R. Frysinger, Esq.
MCGUIRE LAW, P.C.
55 W. Wacker Drive, 9th Floor
Chicago, IL 60601
Telephone: (312) 893-7002
E-mail: eturin@mcgpc.com
jfrysinger@mcgpc.com
SPRINGBONE PEARL: Hwang Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Springbone Pearl,
LLC. The case is styled as Jenny Hwang, on behalf of herself and
all others similarly situated v. Springbone Pearl, LLC d/b/a
Springbone Kitchen, Case No. 1:22-cv-04450 (S.D.N.Y., July 28,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Springbone Pearl, LLC doing business as Springbone Kitchen --
https://springbone.com/ -- is a hip counter serve specializing in
bone broth as well as vegetarian, vegan & gluten-free eats.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
ST. CAMILLUS NURSING: Laskowski Files FLSA Suit in N.D. New York
----------------------------------------------------------------
A class action lawsuit has been filed against St. Camillus Nursing
Home Company, Inc., et al. The case is styled as Tammy Laskowski,
individually and on behalf of all other persons similarly situated
who were employed by St. Camillus Health and Rehabilitation
Facility and/or any other entities affiliated with or controlled by
St. Camillus Health and Rehabilitation Facility v. St. Camillus
Nursing Home Company, Inc. doing business as: St. Camillus Health
and Rehabilitation Facility, St. Camillus Residential Health Care
Facility doing business as: St. Camillus Health and Rehabilitation
Facility, Case No. 5:22-cv-00799-DNH-TWD (N.D.N.Y., July 28,
2022).
The lawsuit is brought over alleged violation of the Fair Labor
Standards Act.
St. Camillus Nursing Home Company -- https://www.st-camillus.org/
-- provides a variety of therapies and services to help achieve
optimal health and independence at home.[BN]
The Plaintiff is represented by:
Alanna Rose Sakovits, Esq.
LaDonna Lusher, Esq.
VIRGINIA & AMBINDER LLP
40 Broad Street, Ste. 7th Floor
New York, NY 10004
Phone: (212) 943-9080
Fax: (212) 943-9082
Email: asakovits@vandallp.com
llusher@vandallp.com
- and -
Frank S. Gattuso, Esq.
Ryan G. Files, Esq.
GATTUSO & CIOTOLI, PLLC
7030 East Genesee Street
Fayetteville, NY 13066
Phone: (315) 314-8000
Fax: (315) 446-7521
Email: fgattuso@gclawoffice.com
rfiles@gclawoffice.com
STATE FARM: Settles Alabama Class Action Over Underpaid Claims
--------------------------------------------------------------
William Rabb of Insurance Journal reports that State Farm
Insurance has denied underpaying claims and other wrongdoing, but
has agreed to settle a class-action lawsuit brought by homeowners
in Alabama. Policyholders who want to object to the settlement have
until Aug. 24. A final approval hearing is set for Sept. 23 at the
federal courthouse in Mobile, Alabama.
In Annie Arnold et al vs. State Farm Fire and Casualty, the class
of plaintiffs alleged that between 2011 and 2017, the insurance
giant systematically depreciated the cost of labor and other
non-material costs on repairs to insureds' property. In some cases,
the depreciation reduced the bill so much that the cost fell below
the homeowners' deductible amount.
The depreciation was not allowed under the policies and
non-material costs cannot be depreciated, anyway, the lawsuit
said.
"The stipulation and settlement are preliminarily approved as fair,
adequate, and reasonable, and the motion of plaintiff and
additional class representatives for preliminary approval of the
settlement is hereby granted in all material respects, subject to
further consideration at the final approval hearing," U.S. District
Judge Terry Moorer wrote in his order.
A State Farm public affairs official released a statement about the
settlement: "While we are confident that we upheld our commitment
to our policyholders and believe we ultimately would have prevailed
in court, to avoid further litigation expenses and uncertainty, we
determined that settlement in this case was in the best interests
of our current and past policyholders."
The dollar amount of the settlement agreement was not disclosed,
nor was the estimated number of policyholders in the class. But
plaintiff attorneys' fees will be limited to about $9 million,
suggesting that the total payout may be roughly three or four times
that amount. If 5,000 policyholders are in the class, the payout
could amount to an average of $7,200 each.
Attorneys for the plaintiffs declined to comment and State Farm
attorneys could not be reached Thursday. But the lawsuit and the
insurer's answer to the complaint explain the scenario involved.
Annie Arnold said that her home in Selma, in central Alabama, was
damaged in 2013. State Farm paid her under its actual cash value
provision but depreciated the labor on the repair, leaving the
homeowner under-indemnified and unable to "pick up the pieces
during a period of great need and tremendous stress," her lawyers
said in the suit.
A State Farm adjuster determined that the Arnold house had
sustained a covered loss of $95,720, including labor and material
for restoration. After deducting the $2,000 deductible and $21,486
for depreciation, the payment to the insured was $72,233.
The suit gave this example of the depreciation practice: On gutter
replacement State Farm estimated the cost would be about $106 for
material and labor. But after depreciation, the payout was just
$64, the suit said.
Alabama law allows the insurer to depreciate the value of building
materials but does not allow the depreciation of the cost of labor,
the suit noted. Materials used in the repair or replacement of
damaged property, such as roofing shingles or metal, diminish in
value over time, due to wear and tear, obsolescence and age, the
suit said, quoting from Black's Law Dictionary. "As such these are
assets that can be depreciated. In contrast, labor is not
susceptible to aging or wear. Its value does not diminish over
time."
The practice was widespread across the state, plaintiffs said.
"As a result, . . . by depreciating labor costs from its ACV
calculations throughout Alabama, State Farm has engaged, and
continues to engage, in a systematic and unlawful pattern of
underpayment of insurance claims," the complaint argued.
State Farm disagreed that labor costs are not subject to
depreciation calculations and it denied the allegations.
More information about the settlement can be found on the claims
administrator's website, here.
This is not the first time State Farm has been accused of
artificially reducing claims payments. In March, policyholders in
Illinois filed a class-action lawsuit against State Farm Automobile
Insurance Co., charging that the insurer arbitrarily applied a
"typical negotiation adjustment" to improperly reduce the value of
a car deemed a total loss in an accident.
State Farm instructed its valuation estimators to include the
adjustment, which reduced the payout by 4% to 11%, the suit argues.
A California lawsuit in 2008 required the insurer to stop using the
tactic in that state, the complaint noted.
Other insurance companies have engaged in similar practices,
regulators have said.
In Georgia, the state insurance commissioner last spring directed
auto insurers to stop under-calculating tax amounts for totaled
vehicles. Some carriers were paying the actual value of the vehicle
but basing the sales tax, also owed to the insurer, on a lower
value, calculated from a combination of retail and wholesale
prices. [GN]
STATE MATERIAL: Hwang Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against State Material Mason
Supply Corp. The case is styled as Jenny Hwang, on behalf of
herself and all others similarly situated v. State Material Mason
Supply Corp., Case No. 1:22-cv-04452 (S.D.N.Y., July 28, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
State Material Mason Supply -- https://www.statematerial.com/ --
provides masonry materials and masonry supplies.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
SUSAN B ANTHONY: Henderson Files TCPA Suit in D. Arizona
--------------------------------------------------------
A class action lawsuit has been filed against Susan B. Anthony List
Incorporated, et al. The case is styled as Justin J. Henderson, for
himself and on behalf of all others similarly situated v. Susan B
Anthony List Incorporated, Unknown Parties named as John & Jane
Does 1-10; and Does 1-10, Case No. 2:22-cv-01276-DWL (D. Ariz.,
July 29, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Susan B. Anthony List, Inc. operates as an organization which is
dedicated to assist in the election of political candidates that
are opposed to abortion.[BN]
The Plaintiff is represented by:
Jon Laurence Phelps, Esq.
PHELPS LAW GROUP
4045 E Union Hills Dr., Ste. 104A
Phoenix, AZ 85050
Phone: (602) 788-2089
Fax: (480) 247-5456
Email: jon@phelpsandmoore.com
TALKSPACE INC: Faces Securities Fraud Class Action Suit
-------------------------------------------------------
Rebecca Torrence of Fierce Healthcare reports that after losing its
two founders and pushing out its chief operating officer last
November, Talkspace's woes aren't over. The online therapy app now
faces a securities fraud lawsuit.
The digital health company, which connects patients with licensed
therapists or psychiatrists for video or text conversations, has
been accused of misleading investors before it went public last
year by misrepresenting its financials and growth.
Namely, the class-action suit filed Jan. 7 alleges Talkspace failed
to disclose critical growth headwinds, including increased
advertising and customer acquisition costs and worsening growth and
gross margin trends, and overvalued its accounts receivable from
certain health plan clients.
In an email statement to Fierce Healthcare, the company said they
"do not believe (the allegations) have any merit," and stated they
are prepared to "defend the company vigorously."
Talkspace's market value has plummeted in the last seven months
since going public in a $1.4 billion deal with a blank check firm.
That deal made Talkspace the first publicly traded virtual
behavioral health company, providing it with $250 million in cash
to be used as growth capital.
But the company's stock has seen a steep decline since then,
falling 82% since its first day of trading in late June, with a
current market cap of approximately $248.3 million.
The behavioral health company took several hits in November after
its co-founder and CEO Oren Frank, as well as co-founder and head
of clinical services Roni Frank, stepped down.
A week later, President and COO Mark Hirschhorn was pushed out
after an internal review of his conduct "in connection with a
company offsite event that took place" the prior week. In seven
days, the company's shares dropped more than 36%.
Interim CEO Doug Braunstein said Thursday during the company's
presentation at the all-virtual J.P. Morgan Healthcare Conference
that while Talkspace's B2B business did see growth in the fourth
quarter of 2021, consumer revenue fell compared to both the
previous quarter and the previous year.
According to Braunstein, changes in the company's advertising spend
are largely to blame for that decrease—namely, he said, Talkspace
cut down on advertising "as a purposeful way to begin the process
of optimizing our returns in the B2C business."
"While disappointed obviously in the revenue, we have seen some
modest positive signs of stabilization in both our conversion and
retention rate," he said. Multiple times throughout the
presentation, he stressed that qualifier: "modest."
Braunstein also said the company has significant cash resources,
which they'll use to drive growth in the business.
Talkspace now expects approximately $112 million in full-year 2021
revenue, down from previous projections of $125 million which the
company withdrew after releasing third-quarter earnings.
Braunstein didn't address the lawsuit in Thursday's presentation.
However, he did field questions from investors about an 8-K filing
with the U.S. Securities and Exchange Commission in December, which
reduced the number of covered lives listed in Talkspace's B2B
business.
According to Braunstein, Talkspace had conversations earlier in the
year with "a very large payer" that provided their network access
to the company's behavioral health offerings. Talkspace believed
they had access to a large number of that payer's network and
included them in the total number of covered lives, writing in
their second- and third-quarter earnings that 75 million were
eligible for Talkspace via the B2B business.
"Subsequent conversations, it was clear that we did not have access
to that payer's covered lives," he said. The company revised those
numbers and now claims to have covered 69 million lives through the
end of 2021.
Demand for virtual behavioral health care remains even as offices
reopened after the initial phase of the pandemic. Investors have
taken notice, pooling billions into digital mental health startups
last year.
But significant concerns can arise with those investments, too,
especially if a company appears to be sinking. Patients rely on the
providers on these platforms to maintain their mental health, which
could be devastating if those platforms disappear, wrote Hunter
Walker, partner at HomeBrew, in a blog post last year.
"This is my most significant concern about the wave of mental
wellness startups being funded with venture dollars—what happens
to the clients of the ones which fail?" he wrote. [GN]
TD BANK: Hit With Class Action Over Balance Inquiry Fees
--------------------------------------------------------
Abraham Jewett of TopClassActions.com reports that a new class
action lawsuit alleges that TD Bank charges customers unwarranted
out-of-network fees for balance inquiries they did not request
while using a non-TD Bank ATM machine.
Plaintiff Jerome Polvay claims TD Bank improperly assesses its
customers two out-of-network fees during a transaction where an
account balance inquiry is made at a non-TD Bank ATM.
"Indeed, no customer could have requested multiple balance
inquiries of the exact same account during the same ATM
transaction," states the TD Bank class action.
Polvay wants to represent a nationwide Class of TD Bank customers
who were assessed multiple out-of-network fees for a single account
balance inquiry at a non-TD Bank ATM.
Plaintiff also wants to represent a subclass of TD Bank customers
who were assessed multiple out-of-network fees for a single account
balance inquiry made at a FCTI ATM located in a 7-Eleven store.
Polvay argues that, while TD Bank customers are aware they will be
charged $3 for an account balance inquiry at a non-TD Bank ATM, the
bank is not authorized to assess double fees on a single request
during the same transaction.
TD Bank accused of charging customers second fee for printing
account balance info
TD Bank, however, will charge customers a second out-of-network
account balance inquiry fee in the event they choose to print the
balance information which is displayed on a non-TD Bank ATM screen,
the TD Bank class action alleges.
"Simply stated, the printing of a receipt for the balance inquiry
transaction displayed on the screen is not a balance inquiry under
the contract, but TD Bank unlawfully always assesses a second OON
Fee," states the TD Bank class action.
Polvay claims TD Bank is guilty of breach of contract and breach of
the covenant of good faith and fair dealing. He is demanding a jury
trial and requesting declaratory and injunctive relief along with
actual, punitive, and exemplary damages for himself and all Class
Members.
TD Bank agreed to pay more than $41 million earlier this year to
resolve claims it wrongfully charged non-sufficient funds fees to
customers attempting to retry a failed transaction.
The plaintiff is represented by Katrina Carroll and Todd D.
Carpenter of Lynch Carpenter, LLP.
The TD Bank class action lawsuit is Polvay v. TD Bank, N.A., et
al., Case No. 1:22-cv-04758, in the U.S. District Court for the
District of New Jersey. [GN]
TENNESSEE-AMERICAN WATER: Faces Class Action Over Wager Outage
--------------------------------------------------------------
Chattanoogan.com reports that a lawsuit that was filed against
Tennessee-American Water Company in connection with a major water
interruption in downtown Chattanooga and the North Shore on Sept.
19, 2019, is seeking to become a class action.
Shaun Christopher Bruce, Bonnie L. Schafer and Trinity
Entertainment, LLC. are plaintiffs in the Circuit Court complaint
against TAW.
The suit, filed by Chattanooga attorney Lee Davis, Van Bunch of
Phoenix, Ariz., and three attorneys from the law office of Rod
Jackson of Charleston, West Va., says tens of thousands of homes
and businesses lost water service as the result of a blown water
distribution main.
The suit says the prestressed concrete cylinder pipe led from TAW's
main Citico water treatment plant to directly serve downtown and
other areas.
It says it happened during a procedure to fix an existing leak that
had been recognized as far back as 2014. It was also planned to
create a permanent bypass of the problem line.
The work was attempted without any shutoff of the main delivery
system, it was stated.
The suit says TAW had been notified that it needed more connections
in order to maintain water service during a natural disaster, but
it had not provided the connections.
It says approximately 76,000 customers were affected by the water
pressure drop, including many businesses that were not able to
operate. Hotels and restaurants were especially affected, the suit
says.
The water company had no procedural plan in place to prevent such a
widespread outage, it was stated.
Water was not fully restored until some 70 hours, according to the
complaint.
It is claimed that TAW was guilty of "willful default or neglect"
of its obligations to its customers.
A judge is being asked to allow the class action rather than having
a number of separate cases on the same situation. [GN]
THS GROUP: Beavers Files TCPA Suit in D. South Carolina
-------------------------------------------------------
A class action lawsuit has been filed against THS Group LLC. The
case is styled as Michael Beavers, on behalf of himself and all
others similarly situated v. THS Group LLC doing business as:
ServicePlus Home Warranty, formerly doing business as Total Home
Protection, Case No. 2:22-cv-02429-BHH (D.S.C., July 28, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
THS Group LLC doing business as ServicePlus Home Warranty --
https://www.serviceplus.com/ -- covers appliances and systems that
are no longer under manufacturers' warranties.[BN]
The Plaintiff is represented by:
Dave Maxfield, Esq.
DAVE MAXFIELD, ATTORNEY, LLC
PO Box 11865
Columbia, SC 29211
Phone: (803) 509-6800
Fax: (855) 299-1656
Email: dave@consumerlawsc.com
- and -
Eric Howard Weitz, Esq.
SEIDEL WEITZ GARFINKLE AND DATZ
1528 Walnut Street, Suite 1401
Philadelphia, PA 19102
Phone: (215) 546-1225
Email: ehw@swgdlaw.com
ULTA SALON: Second Scheduling Order Entered in Jones Suit
---------------------------------------------------------
In the class action lawsuit captioned as JAMIE JONES v. ULTA SALON,
COSMETICS & FRAGRANCE, INC., Case No. 2:20-cv-05198-HB (E.D. Pa.),
the Hon. Judge Harvey Bartle III entered a second scheduling order
as follows:
1. Vacating the scheduling order dated March 23, 2022;
2. Class action discovery shall proceed forthwith and continue
in such a manner as will assure that all requests for, and
responses to, discovery will be served, noticed, and
completed by September 15, 2022;
3. The Plaintiff shall file on or before October 17, 2022, her
motion for class certification and supporting brief;
4. The Defendant shall file and serve on or before November
17, 2022, any brief in opposition to Plaintiff's motion
for class certification;
5. The Plaintiff shall file on or before November 28, 2022,
any reply in support of her motion for class certification;
and
6. The court will schedule another status conference with
counsel after it decides the motion.
A copy of the Court's order dated July 28, 2022 is available from
PacerMonitor.com at https://bit.ly/3oQS6e7 at no extra charge.[CC]
UNITED AUTOMOBILE: Cedeno Files Suit in Fla. Cir. Ct.
-----------------------------------------------------
A class action lawsuit has been filed against United Automobile
Insurance Company. The case is styled as Ashley Cedeno, Shelley
Niles, individually and on behalf of all others similarly situated
v. United Automobile Insurance Company, a Florida profit
corporation, Case No. 2022-11226-CIDL (Fla. Cir. Ct., Volusia Cty.,
July 29, 2022).
The case type is stated as "Insurance Claim."
United Automobile Insurance Company -- https://www.uaig.net/ --
provide a high quality and low cost insurance product to the
non-standard automobile insurance market.[BN]
The Plaintiffs are represented by:
Andrew P Irvin, Esq.
IRVIN & IRVIN PLLC
558 W New England Ave., Ste. 210
Winter Park, FL 32789-4240
Office: 407-848-5800
Cell: 407-720-7037
Fax: 407-720-7325
Email: andrew@irvinlegal.com
UNITED SERVICES: Loses Judgment on Pleadings Bid in Thompson Suit
-----------------------------------------------------------------
In the case, BRONSON D. THOMPSON, Plaintiff v. UNITED SERVICES
AUTOMOBILE ASSOCIATION, Defendant, Civil Action No.
4:20-CV-123-SA-JMV (N.D. Miss.), Judge Sharion Aycock of the U.S.
District Court for the Northern District of Mississippi, Greenville
Division, denies the Defendant's Motion for Judgment on the
Pleadings.
On Oct. 6, 2020, Thompson filed an Amended Class Action Complaint
on behalf of himself and all others similarly situated, for breach
of contract. In his Amended Complaint, he seeks damages for breach
of contract on behalf of himself and a purported class. Thompson's
vehicle was involved in an accident on Dec. 19, 2017, and
thereafter he filed a claim with USAA.
Under the policy, if USAA deems the cost to repair the vehicle to
be more than the cost, at the time of the loss, to buy a comparable
vehicle minus the salvage value, then USAA considers the vehicle to
be a "total loss." In such a case, USAA's liability is limited to
the actual cash value of the vehicle ("ACV") which is defined as
"the amount that it would cost, at the time of loss, to buy a
comparable vehicle."
After Thompson's accident, USAA deemed his vehicle a "total loss,"
then paid him the ACV of the vehicle. It determined the adjusted
value of the vehicle to be $26,548.29, sales tax for the vehicle to
be $1,327.41, and title fees for the vehicle to be $10. USAA
subtracted the deductible amount from the total then paid Thompson.
USAA deemed this amount to be the appropriate amount pursuant to
the Policy's definition of ACV. The amount it ultimately paid to
Thompson did not include "$15 in license or registration costs,
i.e. the 'privilege tax' or Road and Bridge Fee component of
license fees;" "$14 in license or registration costs; i.e., the
`service fee' component of license fees;" "the applicable ad
valorem tax component of license fees;" and dealer fees. Thompson
argues that such fees should have been included in the payment. The
Defendant, on the other hand, contends that the fees should not be
included and that it paid the appropriate amount.
After the Court denied the Defendant's request to compel this
matter to an appraisal pursuant to the Policy's appraisal
provision, the Defendant filed the present Motion, seeking judgment
on the pleadings on Nov. 4, 2021.
The Defendant requests that the Court enters judgment in its favor
for multiple reasons. First, it argues that the Plaintiff has
incorrectly confused the limit of liability with the insuring
agreement. Specifically, it asserts that the term ACV is not
included in the insuring agreement itself (and is only included in
the limit of liability section of the Policy); therefore, it
asserts that the Policy does not impose an obligation on it to
provide the ACV to the Plaintiff but, instead, that it is only
required to pay the amount specifically provided in the insuring
agreement itself. Second, the Defendant asserts that the
Plaintiff's argument seeks to change the bargain between the two
parties. Namely, it asserts that the Plaintiff seeks to change
their agreement from one of covering "loss" to a replacement
agreement. Third, it asserts that even if the Policy requires the
payment of ACV, the dealer fees and taxes the Plaintiff seeks are
not included in ACV. Finally, the Defendant asserts various
additional arguments that the Court will consider together.
As to whether the Plaintiff has sufficiently pled that the
Defendant is required to pay ACV as part of the Policy, the
Defendant first argues that the Plaintiff's reliance on the limit
of liability portion of the contract as outlining his coverage is
misplaced and that, as a result, he is not entitled to the coverage
he seeks under the Policy.
While the Policy requires the Defendant to pay for the "loss,"
Judge Aycock notes that the Defendant has already chosen to pay its
limit of liability as opposed to the amount of "loss." Ultimately,
at least for purposes of this stage in the proceedings and the
arguments presently before it, she finds the Policy to be ambiguous
as to whether it requires the Defendant to pay the ACV or the
amount of "loss." Consequently, the Defendant's argument for
dismissal on this point is not well-taken. The Defendant's request
for dismissal on this ground is therefore denied.
The Defendant then argues that the Plaintiff is attempting to
change the agreed upon terms of the Policy by turning the Policy
into a replacement policy as opposed to a policy paying for "loss."
Judge Aycock finds this argument to be without merit, noting that
the Defendant has provided only one case citation to bolster this
argument and that case only to prove that compensable loss is not
the same as replacement. The Plaintiff cites to an insurance
treatise to explain the differences between ACV coverage and
replacement coverage.
The most notable differences between the two types of coverage are
that ACV coverage "makes the insured responsible for bearing the
cash difference necessary to replace old property with new
property" whereas replacement cost coverage "allows recovery for
the actual value of property at the time of loss, without deduction
for deterioration, obsolescence, and similar depreciation of the
property's value." The Plaintiff claims that he is not seeking a
payment that does not account for depreciation and therefore is not
seeking replacement coverage. Therefore, the Defendant's Motion
based on this argument is denied.
The Defendant also argues that even if it owes the Plaintiff the
ACV, it should not be required to pay him the additional taxes and
fees he seeks. Judge Aycock notes that while the Defendant has the
burden to come forward with proof as to why these taxes and fees
are not included in the ACV, it has failed to do so. Notably, it
has provided no other case law or state statutes that are on point
that support its argument that such fees and taxes should not be
paid. Therefore, ambiguity remains.
Seeing as there is such ambiguity in what is included as part of
the cost "to buy a comparable vehicle," the Defendant's failure to
pay those fees could amount to a breach of contract. As such, Judge
Aycock finds that the Plaintiff has sufficiently stated a claim for
which relief could be granted. As a result, the Defendant's Motion
as to this point is denied.
Finally, Judge Aycock addresses the Defendant's remaining arguments
together. Specifically, the Defendant argues that even if it is
required to pay fees and taxes as part of the ACV, Mississippi law
only requires motor vehicle dealers to pay Dealer Fees. Therefore,
if the Plaintiff does not purchase a vehicle from a dealer, then
such a fee might not be mandatory for him to pay. The Defendant
also argues that the Plaintiff might not be required to pay the ad
valorem or highway privilege taxes because certain exceptions could
apply that would preclude his payment. It also argues that those
taxes are costs incurred with using a vehicle and thus are not
applicable. It also asserts that Mississippi law provides a credit
for ad valorem and highway privilege taxes, so it does not owe
those additional expenses to the Plaintiff.
All these arguments are premature as these are questions that
should be decided after discovery has been conducted, Judge Aycock
rules. For example, as the Plaintiff points out, whether an
exemption applies that would preclude him from paying the
previously mentioned taxes is a question of fact that would not be
properly determined at this stage in the proceedings. As a result,
the Defendant's Motion as to this point is denied.
The Plaintiff will be permitted to proceed on his claims.
A full-text copy of the Court's July 27, 2022 Order is available at
https://tinyurl.com/2m24srny from Leagle.com.
US BANK: Agrees to $37-Mil. Fine Over Unauthorized Accounts
-----------------------------------------------------------
Abraham Jewett of TopClassActions.com reports that U.S. Bank has
agreed to pay a $37.5 million fine to resolve the Consumer
Financial Protection Bureau's (CFPB) claims the bank's employees
opened unauthorized customer accounts as a way to bolster sales.
The CFPB, which announced the fine in a consent order, argues U.S.
Bank pressured its employees into applying for credit for customers
who had not consented to having a new account opened on their
behalf.
U.S. Bank employees would also sometimes access a customers' credit
report without having permission to do so while in the process of
opening an unauthorized deposit, credit card or other account,
according to the agency.
The CFPB further alleged U.S. Bank employees would sometimes fail
to prepare certain account-related disclosures needed to open the
ultimately unauthorized accounts.
U.S. Bank fine also includes plan to repay customer fees on
unauthorized accounts
In addition to agreeing to the civil penalty, U.S. Bank will also
be required to come up with a plan to refund customers who incurred
fees on unauthorized accounts made on their behalf, according to
the U.S. Bank fine announcement.
"For over a decade, U.S. Bank knew its employees were taking
advantage of its customers by misappropriating consumer data to
create fictitious accounts," CFPB Director Rohit Chopra said in a
statement. "We all must do more to hold lawbreaking companies
accountable when they abuse and misuse our sensitive personal
data."
U.S. Bank does not admit any wrongdoing in agreeing to the
settlement, according to the consent order.
Earlier this month, U.S. Bank agreed to pay $450,000 to put an end
to claims it violated the Fair Credit Reporting Act by allegedly
obtaining customer credit without purpose or with their permission.
[GN]
VI-JON LLC: Macormic Seeks to File Suggestions Under Seal
---------------------------------------------------------
In the class action lawsuit captioned as MATTHEW MACORMIC, ERIC
HOWARD, and JOYCE FRYER-KAUFFMAN, individually, and on behalf of
others similarly situated, v. VI-JON, LLC, a Delaware Limited
Liability Company, Case No. 20-CV-01267-HEA (E.D. Mo.), the
Plaintiffs ask the Court to enter an order, pursuant to the Eastern
District of Missouri's Case Management Procedure's Manual,
permititng them to file under seal portions of their Suggestions In
Support of Class Certification and certain Exhibits in Support of
Class Certification, which refer to or contain content that has
been designated as "Confidential" and/or "Confidential --
Attorneys' Eyes Only" pursuant to the Protective Order entered in
this case.
Vi-Jon manufactures and retails beauty care & healthcare products.
A copy of the Plaintiffs' motion dated Aug. 1, 2022 is available
from PacerMonitor.com at https://bit.ly/3SsVlWT at no extra
charge.[CC]
The Plaintiffs are represented by:
Naomi B. Spector, Esq.
Scott A. Kamber, Esq.
KAMBERLAW, LLP
1501 San Elijo Hills Road South, Suite 104-212
San Marcos, CA 92078
Telephone: (310) 400-1053
Facsimile: (212) 202-6364
E-mail: nspector@kamberlaw.com
skamber@kamberlaw.com
- and -
David Steelman, Esq.
Stephen F. Gaunt, Esq.
Bryce C. Crowley, Esq.
STEELMAN GAUNT CROWLEY
901 N. Pine Street, Ste. 110
P.O. Box 1257
Rolla, MO 65402
Telephone: (573) 341-8336
Facsimile: (573) 341-8548
E-mail: dsteelman@sgclawfirm.com
sgaunt@ sgclawfirm.com
bryce@sgclawfirm.com
VI-JON LLC: Macormic, et al., Seek to Certify Classes
-----------------------------------------------------
In the class action lawsuit captioned as MATTHEW MACORMIC, ERIC
HOWARD, and JOYCE FRYER-KAUFFMAN, individually, and on behalf of
others similarly situated, v. VI-JON, LLC, a Delaware Limited
Liability Company, Case No. 4:20-CV-01267-HEA (E.D. Mo.), the
Plaintiffs seek certification of and to be appointed to serve as
Class Representative for the following Nationwide MMPA Class and
Nationwide Unjust Enrichment Class based on Defendant's substantial
conduct emanating from the State of Missouri:
-- The Nationwide Class
"All residents of the United States who, from September
15, 2015 through January 21, 2020, purchased the
Defendant's alcohol-based hand sanitizer Products for
personal, family, or household purposes that bear a "kills
99.99% of germs" or "kills more than 99.99% of germs"
representation on the front label."
Alternatively, Missouri Plaintiffs and representatives from each of
the States of Florida, Illinois and New York (collectively "Class
Representatives") seek appointment to certify and serve as Class
Representatives pursuant to the consumer protection laws and unjust
enrichment laws of each of their respective states (the
"Alternative Classes").
The Plaintiffs and Class Representatives seek certification of each
of the following respective single-state Classes or of any one or
more of the following Classes:
-- The Missouri Classes
The Plaintiffs Matthew Macormic, Eric Howard, and Joyce
Fryer-Kaufman seek appointment to serve as Class
Representatives of the Missouri Consumer Class and
Missouri Unjust Enrichment Class, defined as follows:
"All Missouri purchasers who, from September 15, 2015
through January 21, 2020, purchased Defendant's alcohol-
based hand sanitizer Products for personal, family, or
household purposes that bear a "kills 99.99% of germs"
or "kills more than 99.99% of germs" representation on the
front label."
-- The Florida Classes
Class Representative Theresa Kimbrell seeks appointment to
serve as the Class Representative for the Florida Consumer
Class and Florida Unjust Enrichment Class, defined as
follows:
"All Florida purchasers who, from September 15, 2016
through January 21, 2020, purchased Defendant's alcohol-
based hand sanitizer Products for personal, family, or
household purposes that bear a "kills 99.99% of germs" or
"kills more than 99.99% of germs" representation on the
front label.
-- The Illinois Classes
Class Representative Stephanie Foster seeks appointment to
serve as the Class Representative for the Illinois
Consumer Class and Illinois Unjust Enrichment Class,
defined as follows: Illinois Consumer Class.
"All Illinois purchasers who, within the applicable
statute of limitations and through January 21, 2020 1 ,
purchased Defendant's alcohol-based hand sanitizer
Products for personal, family, or household purposes that
bear a "kills 99.99% of germs" or "kills more than
99.99% of germs" representation on the front label.
-- The New York Classes
Class Representative Karen Blachowicz seeks appointment to
serve as the Class Representative for the New York
Consumer Class and New York Unjust Enrichment Class,
defined as follows: New York Consumer Class.
"All New York purchasers who, within the applicable
statute of limitations and through January 21, 2020,
purchased Defendant's alcohol-based hand sanitizer
Products for personal, family, or household purposes that
bear a "kills 99.99% of germs" or "kills more than 99.99%
of germs" representation on the front label."
Excluded from any proposed Class is efendant, any
entity in which Defendant has a controlling interest,
including its officers, agents and employees, the
Court and its staff, and Class Counsel and their staff.
Vi-Jon manufactures and retails beauty care & healthcare products.
A copy of the Plaintiffs' motion dated Aug. 1, 2022 is available
from PacerMonitor.com at https://bit.ly/3zFBxGW at no extra
charge.[CC]
The Plaintiffs are represented by:
Naomi B. Spector, Esq.
KAMBERLAW LLP
1501 San Elijo Hills Road South, Ste. 104-212
San Marcos, CA 92078
Telephone: (310) 400-1053
Facsimile: (212) 202-6364
E-mail: nspector@kamberlaw.com
- and -
David L. Steelman, Esq.
Stephen F. Gaunt, Esq.
Bryce C. Crowley, Esq.
STEELMAN GAUNT CROWLEY
901 N. Pine Street, Suite 110
P.O. Box 1257
Rolla, MO 65402
Telephone: (573) 341-8336
Facsimile: (573) 341-8548
E-mail: dsteelman@steelmanandgaunt.com
sgaunt@steelmanandgaunt.com
bryce@sgclawfirm.com
- and -
Scott A. Kamber, Esq.
KAMBERLAW LLC
201 Milwaukee Street, Suite 200
Denver, CO 80206
Telephone: (303) 222-9008
Facsimile: (212) 202-6364
E-mail: skamber@kamberlaw.com
VOYAGER 888: Bid for Conditional Cert for Notice Granted in Part
----------------------------------------------------------------
In the class action lawsuit captioned as DORA KING, et al., v.
VOYAGER 888, LLC, et al., Case No. 1:21-cv-00991-RMM (D.D.C.), the
Hon. Judge Robin M. Meriweather entered an order granting in part
and denying in part the Plaintiffs' motion for conditional
certification for notice to potential plaintiffs:
-- Within 14 days of the Memorandum Opinion and Order, the
Defendants shall produce to Plaintiffs the names, email
and home addresses, telephone numbers, and Facebook,
Instagram, WhatsApp, and Twitter URLs and usernames of any
exotic dancer who has worked at Assets since October 2019.
-- The Defendants shall post the modified Notice and Consent
Forms in the common areas at Assets for the 60 day opt-in
period once notice is issued to the potential opt-in
plaintiffs.
The Court said, "The Plaintiffs have demonstrated that other
current and former dancers at are likely similarly situated to
Plaintiffs insofar as they were subjected to a policy of being
classified as independent contractors that may have deprived them
of wages. However, the rejects Plaintiffs' request to define that
class to date back to April 2018. Defendants assert that Assets
opened in October 2019, and Plaintiffs did not dispute that factual
assertion in their reply memorandum. See Opp'n at 7, 19. None of
the Plaintiffs claim in their declarations to have worked at Assets
before October 2019. Accordingly, the Court will conditionally
certify a class of exotic dancers who have worked or are currently
working at Assets during the period of October 2019 to the present.
If discovery indicates that Assets opened before October 2019,
Plaintiffs may ask the Court to expand the scope of this
conditionally certified collective class."
The Plaintiffs Dora King, Sydney Jacobs, Momo Johnson, Unique
Butler, and Jada Morales, proceeding "individually and on behalf of
other similarly situated current and former exotic dancers," filed
a putative class and collective action complaint against the
Defendants Voyager 888, LLC and Saxton-Gabrielle Miller for various
wage claims under the Fair Labor Standards Act ("FLSA") and the
D.C. Minimum Wage Revision Act ("DCMWA").
The Plaintiffs contend that Defendants misclassified them as
independent contractors and failed to pay them a minimum wage for
their work as exotic dancers at Assets.
The Plaintiffs worked as exotic dancers at the Assets Club, a
gentlemen's club in the District of Columbia, between October 2019
and March 2020. They allege that the club's owners, Mr. Schaeffer
and Ms. Miller, had complete control over the employment of all
exotic dancers at the Club and were employers for the purposes of
relevant wage laws.
The Plaintiffs allege that they routinely worked twenty-five to
forty hours per week, and typically four to six shifts per week.
The Defendants did not pay the Plaintiffs or other exotic dancers
during their tenures at Assets.
To redress that alleged violation, Plaintiffs filed a Class and
Collective Action Complaint against Defendants seeking "unpaid
wages, back-pay, restitution, liquidated damages, reasonable
attorney's fees and costs, and all related penalties and damages
under" the FLSA, DCWPA, DCMWA, and the ASSLA.
The Plaintiffs seek conditional certification of a collective
action class consisting of:
"all current and former exotic dancers who work or worked for
Defendants as exotic dancers at Defendants' Assets
Gentlemen's Club during the statutory recovery period, April
2018 through the present."
A copy of the Court's order dated Aug. 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3JGIoEP at no extra charge.[CC]
WATA INC: Knight RICO Suit Transferred to D. Colorado
-----------------------------------------------------
The case styled as Jacob Knight, Jack Cribbs, Jason Dohse,
individually and on behalf of all others similarly situated v.
Wata, Inc., Collectors Universe, Inc., Case No. 8:22-cv-00967 was
transferred from the U.S. District Court for the Central District
of California, to the U.S. District Court for the District of
Colorado on July 28, 2022.
The District Court Clerk assigned Case No. 1:22-cv-01873-DDD to the
proceeding.
The lawsuit is brought over alleged violation of the Racketeer
Influenced and Corrupt Organizations Act for Racketeer/Corrupt
Organization.
Wata, Inc. -- https://watanow.com/ -- is an AI cloud space
management platform provides high-accuracy integrated control
monitoring and smart space solutions.[BN]
WEBCORP INC: Faces Townson Suit Over Unsolicited Text Messages
--------------------------------------------------------------
JASMINE TOWNSON, individually and on behalf of all others similarly
situated, Plaintiff v. WEBCORP, INC., Defendant, Case No.
6:22-cv-01201 (M.D. Fla., July 12, 2022) is a putative class action
brought by the Plaintiff pursuant to the Telephone Consumer
Protection Act and the Florida Telephone Solicitation Act arising
from the Defendant's engagement in unsolicited text messaging to
promote its goods and services.
According to the complaint, the Defendant engages in telemarketing
without the requisite policies and procedures and training required
under the TCPA and its implementing regulations. These 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, says the suit.
Through this action, the Plaintiff seeks an injunction and
statutory damages on behalf of himself and the Class members, and
any other available legal or equitable remedies resulting from the
unlawful actions of Defendant.
The Plaintiff is, and at all times relevant hereto was, an
individual and a "called party" as defined by Fla. Stat. in that he
was the regular user of the cellular telephone number that received
Defendant's telephonic sales calls.
Webcorp Inc. is, and at all times relevant hereto was, a foreign
corporation and a "telephone solicitor" as defined by Fla.
Stat.[BN]
The Plaintiff is represented by:
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Boulevard Suite 1400
Ft. Lauderdale, FL 33301
Telephone: (954) 400-4713
E-mail: mhiraldo@hiraldolaw.com
- and -
Jibrael S. Hindi, Esq.
THE LAW OFFICES OF JIBRAEL S. HINDI
110 SE 6th Street Suite 1744
Ft. Lauderdale, FL 33301
WEST VIRGINIA: 4th Cir. Revives Child Welfare Services Class Suit
-----------------------------------------------------------------
The U.S. Court of Appeals for the Fourth Circuit reversed a lower
court judgment granting West Virginia's motion to dismiss
litigation over the state's administration of child welfare
services. The Fourth Circuit remands so the district court can
consider West Virginia's substantive arguments for dismissal and,
if appropriate, the Plaintiffs' motion for class certification.
The case brought on behalf of thousands of West Virginia's foster
children challenges the State's administration of child welfare
services. The Plaintiffs describe an ineptly structured program,
beleaguered city employees trying their best to provide necessities
while plagued with unmanageable caseloads, staff shortages, and
budgetary constraints, and the resultant tragedies for West
Virginia's children relegated to entire childhoods in foster-care
drift. But the appeal is not about any of that. Invoking Younger v.
Harris, 401 U.S. 37 (1971), the lower court abstained from hearing
the case in deference to parallel state-court proceedings. Because
West Virginia courts retain jurisdiction over foster children until
they leave state custody, the court reasoned, any federal
intervention into that process would undermine the fundamental
notions of comity and federalism and reflect negatively upon the
state court's ability to enforce constitutional principles.
The Fourth Circuit reverses. In the case, principles of federalism
not only do not preclude federal intervention, they compel it. The
Plaintiffs bring federal claims, and federal courts "are obliged to
decide" them in all but "exceptional" circumstances. And the case
presents none of those circumstances.
But the Fourth Circuit's decision is based on more than mere
syllogism. Younger's narrow scope safeguards the Plaintiffs'
rights, bestowed on them by Congress in the Judiciary Act of March
3, 1875, to present their claims to a federal tribunal. The
Plaintiffs allege that a federal class action is the most -- if not
the only -- effective way to achieve the kind of systemic relief
they seek. And history builds out those allegations.
For years, West Virginia's response to any foster-care orders
entered as part of the individual state hearings seems to have been
to shuffle its money and staff around until the orders run out,
entrenching rather than excising structural failures. Forcing the
Plaintiffs to once more litigate their claims piecemeal would get
federalism exactly backwards.
Background
West Virginia entrusts to its Department of Health and Human
Resources (DHHR or the Department) the care of all children in the
custody of the State. W. Va. Code Ann. Section 49-4-113(a)-(b).
Roughly 90% of those children come to the Department by way of
traditional abuse-and-neglect proceedings following parental
maltreatment. But 10% are adjudicated into its custody through
juvenile delinquency and statusoffense hearings, the state courts
possessing authority to place children in the Department's care
when they require a middle ground between in-home supervision and
full-fledged imprisonment.
But regardless of how a child becomes a ward of the Department, the
State bears the same responsibility to "determine the safety of the
child, the continuing necessity for and appropriateness of the
placement, the extent of compliance with the case plan, and the
extent of progress which has been made toward alleviating or
mitigating the causes necessitating placement in foster care." That
is, as far as the State is concerned, all children within the
Department's guardianship are "foster children" and the Department
must mete out appropriate care to them all.
But the buck does not stop with the Department; state circuit
courts conduct "quarterly status reviews" to ensure the Department
places children "in the least restrictive setting available" and
generally acts in their "best interests." Broadly speaking, the
courts "examine the proposed case plan," "determine if the
department has made reasonable efforts to finalize the permanency
plan," approve out-of-state placements, and review "the
appropriateness of the current educational setting" and any
"services required to meet the child's needs."
To sum up, the Department maintains responsibility for planning and
delivering the care, the circuit courts for supervising it. However
effective this arrangement appears on paper, the Plaintiffs assert
the Department has made a mockery of it in practice. Rather than
take children away from abuse and neglect, the Plaintiffs charge,
the Department only compounds it. It houses children in inadequate
and outright dangerous environments, deprives them of badly-needed
social and mental-health services, and, when all else fails --
which it often does in West Virginia -- simply institutionalizes
the children for years, segregating them from the outside world at
the time socialization matters most.
Since 2017, the State has had the highest rate of foster-care
entries for youths between 14 and 17 years of age (1.4% as compared
to the 0.3% national average). But the crux of the Plaintiffs'
complaint is that the Department has failed to do anything
meaningful to stave off this crisis. For years, it has been leaving
almost a quarter of its positions unstaffed, has failed to recruit
anywhere near enough foster-care families, and has not bothered to
educate the families it had, turning instead to
institutionalization to manage the case load. And while these
problems undeniably trickle down to each child's individual case,
the Plaintiffs insist they can only be remedied through systematic,
structural change. The Plaintiffs accordingly bring the class
action, seeking to represent the nearly 7,000 foster children in
the Department's care.
For their one General Class, the Plaintiffs seek, among others:
Increases in staffing so that caseloads do not exceed 15 children
per case worker, development of detailed plans for recruiting
foster homes, and prompt submissions of individualized case plans
to the appropriate state court. They also propose three subclasses,
to reflect foster populations they believe require more nuanced
reform: A Kinship Subclass for children placed with relatives who
lack resources and general know-how of raising children with
developmental difficulties, an ADA Subclass for children with
physical and mental disabilities, and an Aging-Out Subclass for
children approaching adulthood and in need of special transition
planning. They also request a neutral monitor to oversee the
Department's compliance with district-court orders.
To be clear, the Plaintiffs object only to Department practices
that have allegedly resulted in severe delays, inadequate care, and
outright abuse on grounds that they violate the Due Process Clause,
the First Amendment "right to familial association," the Adoption
Assistance and Child Welfare Act, 42 U.S.C. Section 670 et seq.,
the Americans with Disabilities Act, 42 U.S.C. Section 12132, and
the Rehabilitation Act, 29 U.S.C. Sections 705(20), 794. J.A.
165-74.
The Plaintiffs filed their complaint on Sept. 30, 2019, and West
Virginia moved to dismiss on November 26 of that same year. The
State urged two procedural grounds: Lack of subject-matter
jurisdiction under Rooker-Feldman and Younger abstention, both on
the theory that Plaintiffs impermissibly "seek federal review and
ongoing oversight over" West Virginia's courts' quarterly
foster-care hearings. West Virginia also argued that,
substantively, all five of the Plaintiffs' counts failed to state a
claim. Soon after West Virginia filed its motion, COVID-19 arrived
in the United States. By the time the district court picked the
motion back up in July 2021, six of the named Plaintiffs had left
foster care, and West Virginia had filed additional motions to
dismiss their claims as moot.
The district court sided with West Virginia. Starting with
mootness, the court found "no dispute that these six Plaintiffs are
no longer in the Department's custody" and so concluded they "lack
a legally cognizable interest in the outcome of the case." The
Plaintiffs asked the court to consider the
capable-of-repetition-yet-evading-review exception, but on court's
view, the marginal probability that the six Plaintiffs would
reenter foster care was not enough to qualify the claims as such.
It thus dismissed the six Plaintiffs' claims as moot.
Because six other Plaintiffs remained, the court then turned to
West Virginia's Younger contentions. It found the case to resemble
Moore v. Sims, 442 U.S. 415 (1979), where the Supreme Court
abstained from resolving a foster-care dispute over parental
rights. Like Moore, the case concerns "state civil proceedings that
are akin to criminal prosecutions," the court explained. And beyond
the mere similarity in form, the district court found traditional
justifications for abstention compelled it to follow Moore's
course. The court thus granted West Virginia's motion to dismiss,
without reaching the State's arguments about Rooker-Feldman or
failure to state a claim and without ruling on class
certification.
The Plaintiffs appeal both rulings; The State defends the district
court's judgment and once more presses Rooker-Feldman in
alternative.
Mootness
Like the district court, the Fourth Circuit begins with mootness.
Mootness doctrine is grounded in Article III's "case-or-controversy
limitation on federal judicial authority," which requires a
cognizable interest in the outcome of the action to bring suit. But
its demands extend past the filing of the complaint, insisting on
"an actual controversy at all stages of review." Still, the
doctrine is "flexible," recognizing several settled exceptions. The
Plaintiffs invoke two of them: The general "capable of repetition
yet evading review" and the class-action specific "relation back."
The Fourth Circuit opines that the Plaintiffs cannot succeed on the
first, for it applies only when "there is a reasonable expectation
that the same complaining party will be subject to the same action
again." Not to mention that the now-adult Plaintiffs can never
reenter foster care again. The district court appropriately
declined to apply this first exception.
It was wrong, however, to reject the second, the Fourth Circuit
says. It says, where a named plaintiff's individual claim becomes
moot before the district court has an opportunity to certify the
class, the certification may "relate back" to the filing of the
complaint if other class members "will continue to be subject to
the challenged conduct and the claims raised are inherently
transitory."
The State objects the Plaintiffs' claims are not so transitory: The
Plaintiffs themselves complain that children languish in foster
care for years. But that misapprehends the exception. As the Court
explained in Gerstein v. Pugh, what matters most is that the
lifespan of state guardianship "cannot be ascertained at the
outset," that "it is by no means certain that any given individual,
named as plaintiff, would be in custody long enough for a district
judge to certify the class. All of these principles apply with full
force in the case. Foster-care placements are exceedingly
unpredictable.
For these reasons, the Fourth Circuit holds that the Plaintiffs'
claims fit comfortably within Gerstein's inherently transitory
exception. If, on remand, the district court decides to certify the
class, the certification will "relate back to the filing of the
complaint," preserving the Plaintiffs' class claims.
Abstention
The parties' main disagreement centers on abstention. Younger, the
pathmaking case, required federal courts to stay their hand when
criminal prosecution was pending in state court. In keeping with
"the basic doctrine of equity jurisprudence," Younger reasoned
federal injunctions improper "when the moving party has an adequate
remedy at law and will not suffer irreparable injury. In the years
following Younger, the Court has extended the doctrine to certain
civil proceedings where federal interference is "likely to be every
bit as great as" in criminal ones. At the same time, the Court
stayed resolute that "abstention is not in order simply because a
pending state-court proceeding involves the same subject matter."
"Congress, and not the Judiciary, defines the scope of federal
jurisdiction within the constitutionally permissible bounds." And
federal courts have "no more right to decline the exercise of
jurisdiction which is given, than to usurp that which is not
given.
West Virginia and the district court both view the case as falling
on the abstention side of the scale because state circuit courts
"retain exclusive jurisdiction over the setting in which the child
is placed and over any subsequent requests for modification to that
placement" through the individual periodic hearings. Any federal
relief, they alert, would interfere with those hearings and, worse,
would demand near-constant supervision of state courts.
Reviewing de novo, the Fourth Circuit cannot agree. Whether it
loosk to their form or their function, the quarterly state-court
hearings are simply not "of the sort entitled to Younger
treatment." They do not fit any historical precedent applying the
doctrine. And abstaining would forward none of the comity interests
the federalist system holds dear. But more than that, the Fourth
Circuit sees no reason to dismiss the case en masse before the
district court has even had the opportunity to sketch out potential
contours of relief. If the Plaintiffs succeed on the merits, the
court can draw careful lines so as not to interfere with individual
state-court decisions. But for now, the Fourth Circuit reverses.
Jurisdiction
All that remains is West Virginia's argument under the
Rooker-Feldman doctrine, which strips federal courts of
subject-matter jurisdiction when "state-court losers complain of
injuries caused by state-court judgments" in district courts,
citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
284 (2005). Because the district court believed it must abstain
under Younger, it never reached Rooker-Feldman, and the "general
rule" would dictate the Fourth Circuit "not consider an issue not
passed upon below." But even the most generous analysis of the
State's contentions cannot be squared with the Fourth Circuit or
the Supreme Court's precedent, an analysis the former would in any
event conduct de novo. So to avoid further procedural delays, and
to settle any lingering questions over what kind of claims pose a
Rooker-Feldman issue, the Fourth Circuit thinks it desirable to
resolve this issue today.
West Virginia posits the Plaintiffs' claims are "'inextricably
intertwined' with an existing state court decision" and that
Rooker-Feldman bars federal jurisdiction in such circumstances "as
long as the claim could have been brought in the state court
action." The rub for West Virginia is that Exxon, decided in 2005,
"significantly altered this circuit's interpretation of the
Rooker-Feldman doctrine."
The Fourth Circuit has contemplated that Exxon goes even further,
"restricting the doctrine to cases whose procedural postures
mirrored those in the Rooker and Feldman cases themselves," where
"the losing party in state court filed suit in federal court after
the state proceedings ended seeking review and rejection of that
judgment." The Plaintiffs' complaint plainly does not fit that
mold.
Tellingly, West Virginia does not engage with any of that binding
precedent. But as Exxon reminds the Fourth Circuit, the
Rooker-Feldman doctrine "merely recognizes that 28 U.S.C. Section
1331 is a grant of original jurisdiction" that "does not authorize
district courts to exercise appellate jurisdiction over state-court
judgments." And federal courts should not employ it to "supersede
the ordinary application of preclusion law." Nor, for that matter,
should litigants be permitted to turn it into a backdoor to comity
and abstention principles. West Virginia in essence argues the
Plaintiffs should have brought their constitutional objections
before the state court. But the Fourth Circuit has already
considered and rejected these same contentions under Younger. And
it staunchly declines to (re)consider them, dressed in
Rooker-Feldman clothing.
A full-text copy of the Court's July 20, 2022 Opinion is available
at https://tinyurl.com/yckzmse3 from Leagle.com.
The appellate case is styled, JONATHAN R., minor, by Next Friend,
Sarah Dixon; ANASTASIA M., minor, by Next Friend, Cheryl Ord;
SERENA S., minor, by Next Friend, Sarah Dixon; THEO S., minor, by
Next Friend, L. Scott Briscoe; GARRETT M., minor, by Next Friend,
L. Scott Briscoe; GRETCHEN C., minor, by Next Friend, Cathy L.
Greiner; DENNIS R., minor, by Next Friend, Debbie Stone; CHRIS K.,
CALVIN K., and CAROLINA K., minors, by Next Friend, Katherine
Huffman; KARTER W., minor, by Next Friend, L. Scott Briscoe; ACE
L., minor, by Next Friend, Isabelle Santillion; and individually
and on behalf of all others similarly situated,
Plaintiffs-Appellants, v. JIM JUSTICE, in his official capacity as
the Governor of West Virginia; BILL CROUCH, in his official
capacity as the Cabinet Secretary of the West Virginia Department
of Health and Human Resources; JEREMIAH SAMPLES, in his official
capacity as the Deputy Secretary of the Department of Health and
Human Resources; LINDA WATTS, in her official capacity as the
Commissioner of the Bureau for Children and Families; WEST VIRGINIA
DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Defendants-Appellees.
WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS;
NATIONAL ASSOCIATION OF COUNSEL FOR CHILDREN; CHILDREN'S ADVOCACY
INSTITUTE; ADVOKIDS; YOUTH LAW CENTER; NATIONAL CENTER FOR YOUTH
LAW; MOUNTAIN STATE JUSTICE; NATIONAL CENTER ON ADOPTION AND
PERMANENCY; CHILD AND DISABILITY NON-GOVERNMENTAL ORGANIZATIONS,
Amici Supporting Appellants, Case No. 21-1868 (4th Cir.).
ARGUED: Marcia Robinson Lowry -- info@abetterchildhood.org -- A
BETTER CHILDHOOD, New York, New York, for Appellants.
Philip Peisch -- ppeisch@brownandpeisch.com -- BROWN & PEISCH PLLC,
Washington, D.C., for Appellees.
ON BRIEF: Richard W. Walters, J. Alexander Meade, SHAFFER &
SHAFFER, PLLC, Charleston, West Virginia, for Appellants.
Steven R. Compton, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA,
Charleston, West Virginia; Caroline M. Brown , Julia M. Siegenberg
, Kendra Doty , BROWN & PEISCH PLLC, Washington, D.C., for
Appellees.
Tobias S. Loss-Eaton -- TLOSSEATON@SIDLEY.COM -- Mark P. Guerrera
-- MGUERRERA@SIDLEY.COM -- SIDLEY AUSTIN LLP, Washington, D.C., for
Amici Washington Lawyers' Committee for Civil Rights and Urban
Affairs, National Association of Counsel for Children, Children's
Advocacy Institute, Advokids, Youth Law Center, National Center for
Youth Law, Mountain State Justice, and the National Center for
Adoption and Permanency. Jonathan M. Smith -- justice@washlaw.org
-- Kaitlin Banner, Marja Plater, WASHINGTON LAWYERS' COMMITTEE FOR
CIVIL RIGHTS AND URBAN AFFAIRS, Washington, D.C., for Amicus
Washington Lawyers' Committee for Civil Rights and Urban Affairs.
Amy C. Harfield, Children's Advocacy Institute, UNIVERSITY OF SAN
DIEGO SCHOOL OF LAW, San Diego, California, for Amicus Children's
Advocacy Institute. Lydia C. Milnes, MOUNTAIN STATE JUSTICE, INC.,
Morgantown, West Virginia, for Amicus Mountain State Justice. J.
Michael Showalter -- j.michael.showalter@afslaw.com -- James D.
Cromley -- james.cromley@afslaw.com -- SCHIFF HARDIN LLP, Chicago,
Illinois, for Amici Child and Disability Non-Governmental
Organizations.
WHATNOT INC: Toro Files ADA Suit in S.D. New York
-------------------------------------------------
A class action lawsuit has been filed against Whatnot Inc. The case
is styled as Andrew Toro, on behalf of herself and all others
similarly situated v. Whatnot Inc., Case No. 1:22-cv-06459
(S.D.N.Y., July 29, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Whatnot -- https://www.whatnot.com/ -- is a live stream platform
and marketplace that enables collectors and enthusiasts to connect,
buy, and sell verified products.[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
ZOOSK INC: Court Denies Bid to Certify Class in Flores-Mendez Suit
------------------------------------------------------------------
In the case, JUAN FLORES-MENDEZ, an individual, and TRACEY
GREENAMYER, an individual, and on behalf of classes of similarly
situated individuals, Plaintiffs v. ZOOSK, INC., Defendant, Case
No. C 20-04929 WHA (N.D. Cal.), Judge William Alsup of the U.S.
District Court for the Northern District of California denies the
Plaintiffs' motion for class certification.
In this putative class action by data-breach victims, Plaintiffs
Flores-Mendez and Greenamyer used the Defendant's online dating
platform. Zoosk offered a free service and a premium subscription
service for a fee, and customers provided their personal
information to Zoosk upon joining. The Plaintiffs claim injury
stemming from a massive data breach in January 2020 by the
"ShinyHunters," which occurred because Zoosk allegedly failed to
adequately protect their personal information.
The Plaintiffs now move for class certification with Tracy
Greenamyer as the sole representative. Zoosk opposes class
certification on numerous grounds.
Zoosk argues that Ms. Greenamyer waived any right to represent the
class or subclass because she signed its Terms of Use, which
contained a valid class action waiver. In response, the Plaintiffs
argued that Zoosk effectively waived enforcement of its class
action waiver by participating in litigation for nearly two years
and never once raising the issue. Zoosk, however, raised this
affirmative defense in its answer to the Plaintiffs' first amended
complaint dated Feb. 16, 2021, and in its answer to the operative
complaint. Consequently, Judge Alsup finds that Zoosk has not
waived the defense.
Inquiries into the enforceability of contractual clauses are
decided under state law. Under California law, a contractual clause
is unenforceable if it is both procedurally and substantively
unconscionable.
First, Judge Alsup holds that Zoosk's contract was not procedurally
unconscionable. Contracts of adhesion are often procedurally
unconscionable, but not always, especially when reasonable market
alternatives exist. Greenamyer had meaningful market alternatives
to Zoosk, as there are many other dating apps available to
consumers today. Greenamyer could have avoided Zoosk's alleged
unconscionable policies by simply opting out of its dating service,
a "nonessential recreational activity." The Plaintiffs do not
substantively address this point argued by Zoosk, and have thus not
made an adequate showing of procedural unconscionability.
Second, Zoosk's contract is also not substantively unconscionable
under California law. Judge Alsup explains that in Pinnacle Museum
Tower Ass'n v. Pinnacle Mkt. Dev. (US), LLC, 55 Cal.4th 223, 246
(2012), the court analyzes substantive unconscionability as it
"pertains to the fairness of an agreement's actual terms and to
assessments of whether they are overly harsh or one-sided." While
Zoosk's Terms of Use require claims to be brought in an individual
capacity, a proper showing of substantive unconscionability
requires the provision in question to be "so one-sided as to shock
the conscience."
This is not the case here. In Concepcion, the Court upheld the
enforceability of AT&T's class-action waiver which provided for
arbitration of all disputes between the parties but required that
the claims be brought in an "individual capacity, and not as a
plaintiff or class member in any purported class or representative
proceeding." In doing so, it rejected the argument that a
contractual provision is substantively unconscionable for making an
individual action less financially attractive than a class action.
Further, its court of appeals has held that it is not a legally
cognizable issue that a provision requiring individual action
deters litigants from bringing claims. Zoosk's Terms of Use mirror
almost exactly those upheld in Concepcion, and are valid for
similar reason. Accordingly, Judge Alsup does not find Zoosk's
Terms of Use to be substantively unconscionable.
Due to the valid class-action waiver that Ms. Greenamyer agreed to
in Zoosk's Terms of Use, the Plaintiffs' motion for class
certification is denied.
A full-text copy of the Court's July 27, 2022 Order is available at
https://tinyurl.com/y4w5mtzv from Leagle.com
[*] U.S. SPAC-Related Class-Action Lawsuits on the Rise in 2022
---------------------------------------------------------------
Judy Greenwald of BusinessInsurance.com reports that new securities
class-action lawsuits in federal and state courts increased only
slightly overall in the first half of this year, but there was a
bigger increase in the number of special purpose acquisition
company-related suits, according to a report released Wednesday.
Plaintiffs filed 110 new securities class-action lawsuits in the
first half, up 2.8% from 107 in the year-earlier period, according
to the report from San Francisco-based Cornerstone Research Inc.
and the Stanford Law School Securities Class Action Clearinghouse
in Stanford, California.
There were 18 federal SPAC-related filings in this year's first
half, compared with 14 in the year-earlier period. SPAC cases are
on pace to exceed 2021's all-time high of 33.
There were eight COVID-19-related securities class-action cases
filed, with half involving the health care and biotechnology
subsectors, the report said. [GN]
*********
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