/raid1/www/Hosts/bankrupt/CAR_Public/220815.mbx
C L A S S A C T I O N R E P O R T E R
Monday, August 15, 2022, Vol. 24, No. 156
Headlines
3M COMPANY: Faces Product Litigation Suit in Canadian Court
3M COMPANY: Faces Water Contamination Suit
3M COMPANY: Faces Water Contamination Suit in Georgia Court
3M COMPANY: Faces Water Contamination Suit in New Jersey Court
AIR LAB: Slade Files ADA Suit in S.D. New York
ALBUQUERQUE, NM: Crank Still Can't Intervene in Boles-Scott Suit
ALLIANCE PIPELINE: H&T Fair Appeals Ruling to 8th Circuit
ALLSTATE VEHICLE: W.D. Louisiana Strikes Shahan's Class Claims
AUDI OF AMERICA: Court Won't Remand Wynne Suit to Superior Court
BIRD IN HAND: Toro Files ADA Suit in S.D. New York
BISHOP OF CHARLESTON: Nestler Appeals Summary Judgment
BOSCOVS INC: Cody Files Suit in C.D. California
CAMPBELL UNIVERSITY: Delacruz Files ADA Suit in S.D. New York
CHARTER FINANCIAL: Kotila Files Suit in W.D. Michigan
CINTAS CORP: Faces ERISA Suit in Ohio Court
CITIBANK NA: W.D. North Carolina Grants Bid to Stay Suelta Suit
CLEARVIEW AI: Loses Reconsideration Bid in Consumer Privacy Suit
CREDIT CONTROL: Strasser Suit Removed to E.D. New York
CRICKET WIRELESS: District Court Decertifies Class in Freitas Suit
DAVE & BUSTER'S: Pearson Appeals Arbitration Bid Ruling to 9th Cir.
EDUCATION MINNESOTA: Summary Judgments in Hoekman Suit Affirmed
ELON UNIVERSITY: Delacruz Files ADA Suit in S.D. New York
GEORGIA POWER: Wins Summary Judgment Bid on Class Action
GLOBAL INSTITUTE: Court Dismisses Mendez Suit Without Prejudice
HANNAFORD BROS: Bid to Certify Class Responses Due Sept. 2
HARRY'S USA: Slade Files ADA Suit in S.D. New York
HOBBY GAMES: Toro Files ADA Suit in S.D. New York
JAMES CHOICE: Texas Court Dismisses Petition for Writ of Mandamus
KING BABY STUDIO: Dicks Files ADA Suit in S.D. New York
MDL 2913: JUUL Labs Appeals Class Cert. Ruling in Liability Suit
MEDICREDIT INC: Bid to Dismiss Amended Foley Suit Denied as Moot
MICHAEL STARS INC: Dicks Files ADA Suit in S.D. New York
MIDLAND CREDIT: Wins Bid for Summary Judgment in Schultz Suit
MP NEXLEVEL LLC: Miller Files Suit in Cal. Super. Ct.
NABORS COMPLETION: Court Confirms Arbitration Award in Reasner Suit
NAVY FEDERAL: Hart Suit Moved From South Carolina to E.D. Virginia
NEXTGEN LEADS: Stone Files TCPA Suit in S.D. California
OCEAN CITIES: Order Compelling Arbitration in Alammari Suit Upheld
OLAM SPICES: Beltran Parties to Inform Court of Settlement Status
ONETOUCHPOINT INC: Dusterhoft Files Suit in E.D. Wisconsin
PAXTON GATE: Dicks Files ADA Suit in S.D. New York
PAYNE CAPITAL: Jackson Files ADA Suit in S.D. New York
QUALCOMM INC: Faces Consumer Suits in Canadian, UK, Israeli Courts
QUALCOMM INC: Faces Securities Suits in California Court
RYDER SYSTEM: Securities Suit in Florida Court Ongoing
SIEMENS CORP: National Sentry Suit Transferred to N.D. Georgia
SIX AND AIT: Bunting Files ADA Suit in E.D. New York
TAHOE RESOURCES: Stay of Securities Class Suit Temporarily Lifted
TEVA PHARMA: Court Narrows Claims in Antitrust Suit
TEVA PHARMACEUTICAL: Court OKs Settlement Deal in Securities Suit
TEVA PHARMACEUTICAL: Faces Securities Suit Over Copaxone
TRINITY INDUSTRIES: Settlement in Class Suit Initially OK'd
TRUSTEES OF COLUMBIA UNIVERSITY: Suit Filed in S.D.N.Y.
TRUSTEES OF DARTMOUTH: Delacruz Files ADA Suit in S.D. New York
VINTNER'S DAUGHTER: Crosson Files ADA Suit in E.D. New York
WHITE CONTRACTING: Grid Logistics Wins Bids for Summary Judgment
*********
3M COMPANY: Faces Product Litigation Suit in Canadian Court
-----------------------------------------------------------
3M Company disclosed in its Form 10-Q Report for the quarterly
period ended June 30, 2022, filed with the Securities and Exchange
Commission on July 27, 2022, that as of June 30, 2022, the company
was a named defendant in one Canadian putative class action with a
single named plaintiff, alleging that its "Bair Hugger" patient
warming system caused a surgical site infection.
3M Company is a technology company based in Minnesota.
3M COMPANY: Faces Water Contamination Suit
------------------------------------------
3M Company disclosed in its Form 10-Q Report for the quarterly
period ended June 30, 2022, filed with the Securities and Exchange
Commission on July 27, 2022, that 3M, together with several
co-defendants, is defending one putative class action brought by
individuals alleging per-and polyfluoroalkyl substances (PFAS)
contamination of their water supply resulting from the operations
of local metal plating facilities.
Plaintiffs allege that 3M supplied PFAS to the metal plating
facilities. DuPont, Chemours, and the metal platers have also been
named as defendants.
This case has been removed from state court to federal court, and
plaintiffs have withdrawn its motion to remand to state court and
filed an amended complaint. 3M has filed a motion to dismiss the
amended complaint.
In February 2021, the court raised the question whether subject
matter jurisdiction under the Class Action Fairness Act was proper,
issued an order requiring the parties to brief the issue and denied
defendants' motions to dismiss with leave to renew pending the
court's ruling on jurisdiction.
An oral argument was held in September 2021. In December 2021, the
court issued an order retaining jurisdiction over the case and 3M
renewed its previous motion to dismiss, which remains pending.
3M Company is a technology company based in Minnesota.
3M COMPANY: Faces Water Contamination Suit in Georgia Court
-----------------------------------------------------------
3M Company disclosed in its Form 10-Q Report for the quarterly
period ended June 30, 2022, filed with the Securities and Exchange
Commission on July 27, 2022, that 3M, together with co-defendants,
is defending another putative class action in federal court in
Georgia, in which plaintiffs seek relief on behalf of a class of
individual ratepayers in Summerville, Georgia who allege their
water supply was contaminated by per-and polyfluoroalkyl substances
(PFAS) discharged from a textile mill.
In May 2021, the City of Summerville filed a motion to intervene in
the lawsuit, which was granted in March 2022. 3M's motion to
dismiss the case was denied in March 2022. This case remains in
early stages of litigation.
3M Company is a technology company based in Minnesota.
3M COMPANY: Faces Water Contamination Suit in New Jersey Court
--------------------------------------------------------------
3M Company disclosed in its Form 10-Q Report for the quarterly
period ended June 30, 2022, filed with the Securities and Exchange
Commission on July 27, 2022, that 3M is defending a putative class
action filed in New Jersey federal court in November 2021 by
individuals who received drinking water from Middlesex Water
Company that was allegedly contaminated with per-and
polyfluoroalkyl substances (PFAS) in excess of state regulatory
levels. Middlesex Water Company is also named as a defendant in
this action.
With respect to 3M, the suit asserts claims for negligence,
nuisance, and trespass. Plaintiffs seek an injunction to include
bottled water and home treatment systems and alleged damages for
diminution-in-property value, among other relief. 3M filed a motion
to dismiss in March 2022. This case remains in early stages of
litigation.
In May 2022, Middlesex Water Company filed a third-party complaint
against the Company in New Jersey state court in a putative class
action of the state residents who are customers of the water
company, seeking indemnity from the Company. In June 2022, 3M moved
to dismiss and/or stay the third-party complaint in that action.
Middlesex Water Company subsequently removed the case to federal
court in July 2022.
3M Company is a technology company based in Minnesota.
AIR LAB: Slade Files ADA Suit in S.D. New York
----------------------------------------------
A class action lawsuit has been filed against The Air Lab, Inc. The
case is styled as Linda Slade, individually and as the
representative of a class of similarly situated persons v. The Air
Lab, Inc., Case No. 1:22-cv-06594 (S.D.N.Y., Aug. 3, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Airlab -- https://airlab.global/ -- is a manufacturer of a new type
of portable air purifier in the area of moving air purifier.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
ALBUQUERQUE, NM: Crank Still Can't Intervene in Boles-Scott Suit
----------------------------------------------------------------
In the lawsuit styled DIANE BOLES-SCOTT, et al., Plaintiffs v. CITY
OF ALBUQUERQUE, Defendant-Appellee, v. CLAUDEEN CRANK,
Intervenor-Appellant, Case No. A-1-CA-38990 (N.M. App.), the Court
of Appeals of New Mexico affirms the district court's denial of
Claudeen Crank's motion to intervene.
In December 2013, nine plaintiffs filed a lawsuit against the City
of Albuquerque, challenging the City's Motor Vehicle Seizure and
Forfeiture Ordinance (Vehicle Forfeiture Ordinance), Albuquerque,
N.M., Code of Ordinances, ch. 7, art. 6, Sections 7-6-1 to -7
(1974, amended 2014). The Plaintiffs sought to represent a class
defined as "all persons and businesses that had a vehicle that was
seized by the Albuquerque Police Department through the Vehicle
Forfeiture Ordinance and was either never convicted of a crime or
did not know that their vehicle would be used in the commission of
a crime" and including "all individuals whose vehicle was seized
according to Section 7-6-5(B) by which the City obtained title and
ownership through the State's ex parte abandoned property
statutes."
The Plaintiffs' class claims included violations of the New Mexico
Forfeiture Act, excessive fines in violation of the Eighth
Amendment of the United States Constitution, procedural due process
violations in violation of the Fourteenth Amendment of the United
States Constitution, unlawful taking of property without just
compensation in violation of the Fifth Amendment of the United
States Constitution, an intentional violation of civil and
constitutional rights, and entitlement to declaratory and
injunctive relief.
The Plaintiffs moved to certify the proposed class in December
2015. At the motion hearing on the Plaintiffs' class certification,
the district court raised concerns about the adequacy of class
counsel and the adequacy and standing of the class representatives
for certain claims. The district court denied the motion for class
certification without prejudice, but permitted the Plaintiffs to
file a motion curing the identified issues so long as they
associated with experienced and qualified class counsel within
sixty days of the hearing.
Judge Jacqueline R. Medina, writing for the Panel, notes that the
Plaintiffs did not associate with experienced class counsel or file
an additional pleading within sixty days to cure the issues
identified by the district court. Instead, the Plaintiffs filed an
unopposed motion seeking leave to amend their complaint in
September 2017. The district court granted this motion and the
Plaintiffs amended their complaint to remove all class claims in
October 2017. In May 2019, the Plaintiffs and the City informed the
district court that they were working towards settling all
remaining claims.
In July 2019, Crank moved to intervene on her own behalf and on
behalf of the putative class. In her class action complaint
attached to her motion to intervene, Crank sought to represent:
All persons and entities who, within three years prior to
the filing of the complaint in this matter and until
March 25, 2016, have suffered the impairment of property
interests, including the unlawful seizure, impound,
immobilization, or sale of their vehicles, or the imposition
of unlawful fines related thereto, resulting from one or
more of the following:
(a) the City's creation and operation of a civil vehicle
forfeiture program that was affected by an unlawful
profit incentive in violation of the Due Process Clause
of the United States Constitution; and
(b) the City['s] creation and operation of a civil vehicle
forfeiture program that required car owners to prove
their innocence to secure the return of their vehicles
in violation of the Due Process Clause of the United
States Constitution.
Ms. Crank's class claims for relief alleged (1) an unconstitutional
profit incentive in violation of the Due Process Clause of the
United States Constitution, and (2) unconstitutional deprivation of
property through burden shifting in violation of the Due Process
Clause of the United States Constitution. Crank stated in her
accompanying affidavit that she had been aware of the litigation
regarding the Vehicle Forfeiture Ordinance since late 2015 or early
2016, but that she was not aware class certification had been
denied until June 2019. The Plaintiffs and the City mutually agreed
to settle their claims and the Plaintiffs' action was dismissed in
December 2019.
The district court denied Crank's motion to intervene as untimely
following a hearing, relying in part on Crank's affidavit where she
admitted knowledge of the litigation. This appeal followed.
Ms. Crank argues that the relevant inquiry is whether her motion
was made within a reasonable time after she should have known that
the class representative was not planning to appeal the denial of
class certification, and that under that standard, her motion was
timely. The City argues, among other things, that the record
supports the district court's ruling that Crank's motion was
untimely because Crank admits that she had actual notice of the
case for over three years, but did not seek to intervene during
that time. The City notes that Crank waited three years after the
denial of class certification and two years after the Plaintiffs
expressly abandoned their class claims to intervene.
The Court of Appeals holds that the district court did not abuse
its discretion in denying Crank's motion to intervene.
Judge Medina notes that without question, Crank had the opportunity
to intervene earlier in the proceedings--the district court relied
in part on Crank's admitted prior knowledge of the lawsuit in
denying her motion. Crank knew of the litigation as early as 2015,
but did not seek to intervene until 2019. The district court
observed there was no explanation for why Crank did not move to
intervene three years prior.
Ms. Crank, relying on United Airlines, Inc. v. McDonald, 432 U.S.
385 (1977), argues that her motion is timely for the limited
purpose of pursuing an appeal of the district court's denial of
class certification on behalf of the class and that her motion must
be permitted as a matter of right.
Judge Medina holds that Crank's reliance on McDonald is
unpersuasive for two reasons. First, Crank's motion does not
reflect that she moved to intervene for the limited purpose of
appealing the denial of class certification. Second, Crank
undoubtedly had the opportunity to intervene years before and,
therefore, did not act promptly to protect her interest.
Additionally, Judge Medina opines, permitting Crank's intervention
would have prejudiced the existing parties. The present case has
been ongoing for nearly a decade and the Plaintiffs dismissed their
action against the City with prejudice shortly after Crank filed
her motion to intervene. Intervention at this late stage would
require substantial motion practice addressing a different class
than the class originally proposed by the Plaintiffs and would
cause significant delay in the final resolution of this case.
The Court of Appeals, therefore, determines that the district court
did not abuse its discretion when denying Crank's motion to
intervene as untimely. Because it determines that Crank's motion to
intervene was untimely under the facts of this case, the Court of
Appeals declines to address her arguments that she meets all other
requirements for intervention.
J. Miles Hanisee, Chief Judge, and Gerald E. Baca, Judge, concur.
A full-text copy of the Court's Memorandum Opinion dated July 25,
2022, is available at https://tinyurl.com/47xe4379 from
Leagle.com.
Peifer, Hanson, Mullins & Baker, P.A., Robert E. Hanson --
rhanson@peiferlaw.com -- Elizabeth K. Radosevich --
eradosevich@peiferlaw.com -- in Albuquerque, New Mexico, for the
Appellees.
Kennedy Law, P.C., Joseph P. Kennedy --
kennedylaw@civilrightslaw.com -- Shannon L. Kennedy, in
Albuquerque, New Mexico, for the Appellant.
ALLIANCE PIPELINE: H&T Fair Appeals Ruling to 8th Circuit
---------------------------------------------------------
Plaintiffs H&T Fair Hills, Ltd., et al., filed an appeal from a
court ruling entered in the lawsuit entitled H&T Fair Hills, Ltd.,
et al. v. Alliance Pipeline L.P., Case No. 0:19-cv-01095-JNE, in
the U.S. District Court for the District of Minnesota.
Agricultural landowners brought this case against Alliance Pipeline
for its alleged failure to compensate them for crop losses caused
by a pipeline it built through their properties. Prior to
construction, Defendant agreed to compensate these farmers for
pipeline-related crop losses. The Defendant met this obligation by
creating a crop loss program that compensated landowners and
tenants for lower crop yields on the pipeline right of way. In
2015, Defendant ended this program and, in 2019, Plaintiffs sued.
On July 6, 2021, Alliance filed a motion to compel arbitration and
dismiss the claims of landowners who granted Alliance easements
that, according to Alliance, require that crop damage disputes be
resolved through arbitration.
On March 24, 2022, the Court entered an Order granting in part and
denying in part Defendant's July 6, 2021 motion to compel
arbitration and dismiss arbitrable claims.
On April 20, 2022, Alliance appealed the Court's ruling to the U.S.
Court of Appeals, 8th Circuit.
On April 25, 2022, the Defendant filed a motion to stay proceedings
pending a ruling on its appeal, which the Court granted on July 8,
2022. All other pending motions were DENIED without prejudice to
re-filing after the Court lifts the stay granted. All proceedings
in the case were STAYED until further order of the Court.
The appellate case is captioned as H&T Fair Hills, Ltd., et al v.
Alliance Pipeline L.P., Case No. 22-8013, in the United States
Court of Appeals for the Eighth Circuit, filed on July 14,
2022.[BN]
Plaintiffs-Petitioners H&T Fair Hills, Ltd., et al., on behalf of
themselves and all others similarly situated, are represented by:
Drew R. Ball, Esq.
Steve McCann, Esq.
BALL & MCCANN
161 N. Clark Street, Suite 1600
Chicago, IL 60601
Telephone: (872) 205-6556
- and -
Michael R. Cashman, Esq.
Brian William Nelson, Esq.
Anne T. Regan, Esq.
HELLMUTH & JOHNSON
8050 W. 78th Street
Edina, MN 55439
Telephone: (952) 941-4005
Defendant-Respondent Alliance Pipeline L.P., also known as Alliance
USA, is represented by:
Samuel Andre, Esq.
Aron J. Frakes, Esq.
Patrick D.J. Mahlberg, Esq.
Nicole M. Moen, Esq.
Haley Waller Pitts, Esq.
FREDRIKSON & BYRON
200 S. Sixth Street, Suite 4000
Minneapolis, MN 55402-1425
Telephone: (612) 492-7000
ALLSTATE VEHICLE: W.D. Louisiana Strikes Shahan's Class Claims
--------------------------------------------------------------
In the case, AMANDA SHAHAN v. ALLSTATE VEHICLE & PROPERTY INSURANCE
CO., Case No. 2:22-CV-01246 (W.D. La.), Judge James D. Cain, Jr. of
the U.S. District Court for the Western District of Louisiana, Lake
Charles Division, grants the Defendant's motion to dismiss and
motion to strike class allegations.
On Aug. 27, 2020, Hurricane Laura made landfall near Lake Charles.
During the relevant time period, Allstate issued a replacement cost
homeowners insurance policy, which covered Plaintiff's property
against perils including hurricanes. In her Complaint, the
Plaintiff alleges that Allstate did not sufficiently compensate her
for additional living expenses, and for damages to her dwelling,
structures and personal property losses.
The Plaintiff asserts a breach of contract claim as well as claims
for penalties and attorney fees pursuant to Louisiana Revised
Statutes 22:1973 and 22:1892. Specifically, she claims that
Allstate breached the policy by wrongfully withholding amounts due
to her for Actual Cash Value ("ACV") claims by depreciating labor
when calculating the ACV of the damaged insured property.
Before the Court is the Defendant's Rule 12(b)(6) Motion to Dismiss
and Rule 23(d)(1)(D) Motion to Strike Class allegations wherein it
moves to dismiss all of Shahan's claims with prejudice and to
strike the class allegations from the putative Class Action
Complaint.
The Plaintiff's policy is a replacement cost insurance policy where
she will receive the actual cash value ("ACV") of her insured
property when it is damaged or destroyed by a covered peril. ACV is
calculated by taking the repair/replacement which includes both
material and labor and then deducting for depreciation. If no
repairs or replacements are made the insured is paid ACV. If the
repairs or replacements are made, Allstate reimburses the insured
for the depreciation deduction.
The Plaintiff alleges that when Allstate calculates the amount of
the ACV, it should only depreciate the material costs, but not the
labor costs. Plaintiff argues that the ACV should include all labor
costs, even prior to the repair/replacement being made. In other
words, she challenges Allstate's refusal to pay 100% of the future
labor costs, without any depreciation, even if she does not replace
or repair the damaged property.
Judge Cain holds that the Plaintiff attempts to create an ambiguity
where none exists. The rules of contractual interpretation simply
do not authorize a perversion of the words or the exercise of
inventive powers to create an ambiguity where none exists or the
making of a new contract when the terms express with sufficient
clarity the parties' intent. To be clear, the language of the
policy could not be interpreted to pay the insured for all future
labor costs, which have not yet, nor may they ever be incurred.
This would be an absurd and illogical interpretation of the policy.
Simply put, depreciation is the actual value of the damaged
property reduced by a time factor depending upon the life
expectancy of the property. ACV is the replacement of that property
less the depreciation. The Plaintiff's attempt to dissect and
remove components of depreciation distorts the plain, ordinary and
generally prevailing meaning of depreciation. As such, Judge Cain
finds that the Plaintiff's claims for additional damages for future
labor costs to any covered, damaged property must be dismissed.
Allstate moves to strike from the complaint any and all class
action allegations. Based on his conclusion that the Plaintiff's
claim for future labor costs should be dismissed, Judge Cain also
finds that the complaint fails to plead the minimum facts necessary
to establish the existence of a class under the mandates of Rule 23
of the Federal Rules of Civil Procedure. As such, any such
allegations will be stricken.
Allstate moves to dismiss the complaint in its entirety as well as
to strike the class allegations. Judge Cain grants Allstate's
Motion to Dismiss as to the Plaintiff's claims for future labor
costs, and grants its Motion to Strike the Class allegations.
However, Judge Cain permits the Plaintiff to amend her complaint to
assert a breach of contract claim, if any she has, consistent with
the Court's ruling.
A full-text copy of the Court's July 29, 2022 Memorandum Ruling is
available at https://tinyurl.com/469ct7cj from Leagle.com.
AUDI OF AMERICA: Court Won't Remand Wynne Suit to Superior Court
----------------------------------------------------------------
Magistrate Judge Donna M. Ryu of the U.S. District Court for the
Northern District of California denies the Plaintiff's motion to
remand her lawsuit titled AMY WYNNE, Plaintiff v. AUDI OF AMERICA,
et al., Defendants, Case No. 21-cv-08518-DMR (N.D. Cal.), to the
Superior Court of the State of California for the County of Marin.
Ms. Wynne filed te putative class action on June 18, 2021, in
Superior Court of the State of California for the County of Marin
against Defendant Audi of America alleging claims related to the
theft of her personal information resulting from a data breach. She
later filed an amended complaint adding Audi of America, LLC;
Sanctus LLC, dba Shift Digital; Shift Digital, LLC; and Volkswagen
Group of America, Inc. as additional Defendants. The Defendants
assert that "Audi of America" and "Audi of America, LLC" are the
same entity. The Court refers to them together as "Audi."
Ms. Wynne subsequently dismissed Shift Digital, LLC, from the
lawsuit. Sanctus LLC, dba Shift Digital, removed the case on Nov.
2, 2021, asserting that federal jurisdiction exists under the Class
Action Fairness Ac. Wynne now moves to remand the action. The Court
held a hearing on July 14, 2022.
Ms. Wynne makes the following allegations in the amended complaint:
Defendant Audi is a wholly-owned subsidiary of Volkswagen. Shift
Digital is a vendor that works with Audi and Volkswagen. She
alleges that at some point between August 2019 and May 2021, the
Defendants were the target of a data breach and her personally
identifiable information ("PII") was accessed and compromised. She
alleges that Defendants failed to implement reasonable security
procedures to adequately protect her and the putative class
members' PII from data breaches, which resulted in an invasion of
her privacy interests. Further, given the sensitive nature of the
information at issue, she and the putative class members are at
imminent, immediate, and continuing risk of further identity
theft-related harm.
The Plaintiff defines the putative class as "all Volkswagen of
America, Inc./Audi customers and interested buyers residing in
California whose PII was accessed or otherwise compromised in the
Data Breach, which, according to the Notice of Data Breach provided
by Volkswagen of America, Inc./Audi, occurred at some point between
August 2019 and May 2021." She brings the following claims on
behalf of herself and the class: 1) violation of California's
Unfair Competition Law, California Business & Professions Code
section 17200; and 2) violation of the California Consumer Privacy
Act, California Civil Code section 1798.150, et seq. She seeks an
award of statutory damages under the CCPA, injunctive and equitable
relief, and an award of attorneys' fees and costs.
On Nov. 2, 2021, Shift Digital removed the case under CAFA
jurisdiction. Wynne now moves to remand the case to state court,
arguing that this court lacks subject matter jurisdiction because
she does not satisfy the requirements of Article III standing.
Discussion
Ms. Wynne argues that the case must be remanded because the Court
lacks subject matter jurisdiction. Specifically, Wynne argues that
she has not alleged a "concrete" harm necessary to confer Article
III standing under TransUnion LLC v. Ramirez, 141 S.Ct. 2190, 2200
(2021).
The parties dispute whether Wynne has alleged a "concrete" injury
in fact; causation and redressability are not at issue.
Judge Ryu notes that recent Supreme Court decisions have clarified
what constitutes a "concrete" injury for purposes of Article III
standing. In Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016), the
Court held that Article III standing requires a concrete injury
even in the context of a statutory violation; an allegation of a
bare procedural violation, divorced from any concrete harm, does
not satisfy the injury in fact requirement of Article III.
In TransUnion, the Court examined what makes a harm concrete for
purposes of Article III. The class action plaintiffs in TransUnion
sued a credit reporting agency under the Fair Credit Reporting Act
("FCRA"), alleging that the agency failed to use reasonable
procedures to ensure the accuracy of their credit files, as
maintained internally by TransUnion.
In sum, Judge Ryu holds, under Spokeo and TransUnion, neither "the
risk of future harm, without more," nor "bare procedural
violation[s], divorced from any concrete harm," suffice for Article
III standing in a suit for damages.
In this case, Wynne alleges that sensitive personal information,
including names, addresses, driver's license numbers, social
security numbers, dates of birth, account and loan numbers, and tax
identification numbers, were stolen in a massive data breach.
According to Wynne, the data breach that resulted in the disclosure
of Wynne's and the putative class members' PII violated their
"fundamental privacy rights."
Under TransUnion and Ninth Circuit precedent, Judge Ryu finds that
these allegations establish an injury that is sufficiently concrete
for purposes of Article III standing. The Court, thus, has subject
matter jurisdiction over this action.
At the hearing, Wynne's counsel argued that Wynne has not alleged a
concrete injury for purposes of Article III standing because she
only seeks statutory damages for the Defendants' violation of the
duty to implement and maintain reasonable security procedures and
practices to protect the personal information that was accessed in
the data breach.
Although it is true that the CCPA provides a private right of
action that is tied to a defendant's failure to protect California
residents' personal information, counsel's argument ignores that
such an action may only be brought upon the "unauthorized access
and exfiltration, theft, or disclosure" of the individual's
information, Judge Ryu notes.
In other words, Judge Ryu explains, a defendant's failure "to
provide reasonable security" for personal information is actionable
only in the event that the private information is disclosed,
resulting in an individual's loss of "control over their personal
information" and violation of their right to privacy. The violation
of Wynne and the putative class members' right to privacy is
precisely what is at issue in this action, Judge Ryu points out.
Defendant Shift Digital also argues that Wynne has alleged concrete
harms in the form of an increased risk of identity theft or fraud
and the expense of credit-monitoring services. Since the Court
concludes that the disclosure of Wynne's sensitive personal
information violated her right to privacy and constitutes a
concrete harm, it need not address whether these additional
injuries are concrete for purposes of Article III.
For these reasons, the Court concludes that Wynne has alleged a
concrete injury under Article III. Accordingly, as the Court has
subject matter jurisdiction over this action, it denies Wynne's
motion to remand.
A full-text copy of the Court's Order dated July 25, 2022, is
available at https://tinyurl.com/57ray5nc from Leagle.com.
BIRD IN HAND: Toro Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Bird In Hand. The
case is styled as Andrew Toro, on behalf of herself and all others
similarly situated v. Bird In Hand, Case No. 1:22-cv-06546-JGK
(S.D.N.Y., Aug. 2, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Bird-in-Hand Corporation -- https://bird-in-hand.com/ -- is a
multi-location hospitality organization located in the beautiful
countryside of Lancaster County, Pennsylvania.[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
BISHOP OF CHARLESTON: Nestler Appeals Summary Judgment
------------------------------------------------------
Plaintiffs Gary Nestler, et al., filed an appeal from a court
ruling in the lawsuit entitled Gary Nestler, Viewed Student Female
200, Viewed Student Male 300, on behalf of themselves and all
others similarly situated, v. The Bishop of Charleston, a
Corporation Sole, Bishop England High School, Tortfeasors 1-10, The
Bishop of the Diocese of Charleston, in his official capacity, and
Robert Guglielmone, individually, Case No. 2:21-cv-00613-RMG, in
the United States District Court for the District of South Carolina
at Charleston.
The Plaintiffs filed this lawsuit seeking class action status on
behalf of current and past Bishop England High School (BEHS)
students who were made and required to disrobe, partially or fully,
in each of three dressing room/locker rooms, thereby exposing
themselves in the locker rooms controlled by Defendants Bishop
England High School, The Bishop of Charleston, a Corporation Sole,
The Bishop of Charleston, in his official capacity, Robert
Guglielmone, individually, and Tortfeasors 1-10. Each of the locker
rooms (boys and girls) were subject to viewing through a large
plate glass window, positioned at desktop height, while students
were using the dressing room/locker room facilities at BEHS since
the opening of the school building on Daniel Island in the City of
Charleston (approximately September 1, 1998) until May of 2019. The
windows were covered with blinds that could be and were controlled
and/or manipulated from within the viewing rooms; of course,
without warning or knowledge to students or tuition payers, says
the suit.
As reported in the Class Action Reporter on May 9, 2022, the
Plaintiffs asked the Court to enter an order reconsidering and
vacating its March 24, 2022 denial of their motion for class
certification, and to grant their motion for class certification.
The Plaintiffs also filed a separate motion to certify question to
the Supreme Court of South Carolina.
On May 24, 2022, Judge Richard M. Gergel denied the Plaintiffs'
motion for reconsideration as well as their motion to certify
question.
On June 17, 2022, the Court entered an Order granting Defendant's
April 8, 2022 motion for summary judgment. The Clerk was directed
to close the case.
The Plaintiffs seek a review of this ruling.
The appellate case is captioned as Gary Nestler v. Bishop of
Charleston, Case No. 22-1750, in the United States Court of Appeals
for the Fourth Circuit, filed on July 14, 2022.[BN]
Plaintiffs-Appellants GARY NESTLER, et al., on behalf of themselves
and all others similarly situated, are represented by:
Brent S. Halversen, Esq.
BRENT SOUTHER HALVERSEN, LLC
751 Johnnie Dodds Boullevard
Mount Pleasant, SC 29464
- and -
David Kevin Lietz, Esq.
MILBERG
5335 Wisconsin Avenue, NW
Washington, DC 20015
Telephone: (866) 252-0878
- and -
Lawrence E. Richter, Jr., Esq.
RICHTER FIRM, LLC
622 Johnnie Dodds Boulevard
Mt. Pleasant, SC 29464-0000
Telephone: (843) 849-6000
- and -
Daniel Scott Slotchiver, Esq.
SLOTCHIVER & SLOTCHIVER, LLP
44 State Street
Charleston, SC 29401-0000
Telephone: (843) 577-6531
- and -
Carl Lewis Solomon, Esq.
SOLOMON LAW GROUP
1519 Richland Street
Columbia, SC 29201
Telephone: (803) 391-3120
Defendants-Appellees THE BISHOP OF CHARLESTON, a Corporation Sole,
et al., are represented by:
Richard Sears Dukes, Jr., Esq.
TURNER, PADGET, GRAHAM & LANEY, PA
P. O. Box 22129
Charleston, SC 29413-0000
Telephone: (843) 576-2810
- and -
Megan Ashley Rushton, Esq.
TURNER, PADGET, GRAHAM & LANEY, PA
P. O. Box 1509
Greenville, SC 29602-0000
- and -
Carmelo Barone Sammataro, Esq.
TURNER, PADGET, GRAHAM & LANEY, PA
1901 Main Street
Columbia, SC 29201
Telephone: (803) 227-4253
BOSCOVS INC: Cody Files Suit in C.D. California
-----------------------------------------------
A class action lawsuit has been filed against Boscovs, Inc. The
case is styled as Annette Cody, individually and on behalf of all
others similarly situated v. Boscovs, Inc., Does 1 through 25,
inclusive, Case No. 8:22-cv-01434 (C.D. Cal., Aug. 2, 2022).
The nature of suit is stated as Other Fraud.
Boscov's -- https://www.boscovs.com/ -- is a billion-dollar plus,
independently owned innovative chain of 48 department stores.[BN]
The Plaintiff is represented by:
Scott J. Ferrell, Esq.
PACIFIC TRIAL ATTORNEYS APC
4100 Newport Place Drive Suite 800
Newport Beach, CA 92660
Phone: (949) 706-6464
Fax: (949) 706-6469
Email: sferrell@pacifictrialattorneys.com
CAMPBELL UNIVERSITY: Delacruz Files ADA Suit in S.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Campbell University.
The case is styled as Emanuel Delacruz, on behalf of himself and
all other persons similarly situated v. Campbell University, Case
No. 1:22-cv-06570 (S.D.N.Y., Aug. 2, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Campbell University -- https://www.campbell.edu/ -- is a private
Christian institution of higher education located in the heart of
North Carolina.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: nyjg@aol.com
michael@gottlieb.legal
CHARTER FINANCIAL: Kotila Files Suit in W.D. Michigan
-----------------------------------------------------
A class action lawsuit has been filed against Charter Financial
Publishing Network, Inc. The case is styled as Matthew Kotila,
individually and on behalf of all others similarly situated v.
Charter Financial Publishing Network, Inc., Case No. 1:22-cv-00704
(W.D. Mich., Aug. 3, 2022).
The nature of suit is stated as Other P.I. for Civil Miscellaneous
Case.
Charter Financial Publishing Network Inc was founded in 1999. The
company's line of business includes the publishing and printing of
periodicals.[BN]
The Plaintiff is represented by:
Gregory A. Mitchell, Esq.
Sharon S. Almonrode, Esq.
E. Powell Miller, Esq.
THE MILLER LAW FIRM PC
950 W University Dr., Ste. 300
Rochester, MI 48307
Phone: (248) 841-2200
Email: gam@millerlawpc.com
ssa@millerlawpc.com
epm@millerlawpc.com
CINTAS CORP: Faces ERISA Suit in Ohio Court
-------------------------------------------
Cintas Corporation disclosed in its Form 10-K Report for the fiscal
year ended May 31, 2022, filed with the Securities and Exchange
Commission on July 27, 2022, that the company, the Board of
Directors, Scott Farmer (Executive Chairman) and the Investment
Policy Committee are defendants in a purported class action pending
in the U.S. District Court for the Southern District of Ohio
alleging violations of The Employee Retirement Income Security Act
of 1974 (ERISA).
The lawsuit asserts that the defendants improperly managed the
costs of the employee retirement plan, breached their fiduciary
duties in failing to investigate and select lower cost alternative
funds and failed to monitor and control the employee retirement
plan's recordkeeping costs. The defendants deny liability and a
legal contingency is neither probable or estimable at May 31, 2022
or 2021.
Cintas Corporation, a Washington corporation, provides a wide range
of products and services such as uniforms, mats, mops, restroom
supplies, first aid and safety products, fire extinguishers and
testing, and safety training.
CITIBANK NA: W.D. North Carolina Grants Bid to Stay Suelta Suit
---------------------------------------------------------------
Magistrate Judge David S. Cayer of the U.S. District Court for the
Western District of North Carolina, Statesville Division, grants
the Defendants' motion to stay the lawsuit captioned ALEJANDRO J.
SUELTA and ADRIANNE CARROLL, individually and on behalf of all
others similarly situated, Plaintiffs v. CITIBANK, N.A. and JOHN
DOES 1-10, Defendants, Case No. 5:22-cv-12-KDB-DSC (W.D.N.C.).
The Defendants contend that further proceedings should be stayed
pending resolution of the certified class action in Christine Head,
et al. v. Citibank, N.A., No. 3:18-cv-08189-ROS, pending in the
District of Arizona. These actions arise from similar operative
facts, and the Defendants sufficiently allege there is already a
certified class that subsumes the Plaintiffs' claims here.
Judge Cayer opines that consideration of the first-to-file rule and
its component factors also supports a stay. For these reasons and
the other reasons set forth in the Defendants' briefs, he granted
the Motion.
The Clerk is directed to send copies of the Order to counsel for
the parties and to the Honorable Kenneth D. Bell.
A full-text copy of the Court's Order dated July 25, 2022, is
available at https://tinyurl.com/yc6ted2m from Leagle.com.
CLEARVIEW AI: Loses Reconsideration Bid in Consumer Privacy Suit
----------------------------------------------------------------
Judge Sharon Johnson Coleman of the U.S. District Court for the
Northern District of Illinois, Eastern Division, denies the
Defendants' motion for reconsideration in the lawsuit captioned In
re Clearview AI, Inc., Consumer Privacy Litigation, Case No.
21-cv-0135 (N.D. Ill.).
On Feb. 14, 2022, the Court granted in part and denied in part the
Clearview Defendants' motion to dismiss brought pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). Before the Court is
the Defendants' motion for reconsideration and clarification under
Rule 54(b).
The Court presumes familiarity with its Feb. 14, 2022 Memorandum,
Opinion, and Order, along with the Court's other rulings in this
multi-district litigation, including the Aug. 12, 2020 Memorandum,
Opinion, and Order denying Defendants Hoan Ton-That's and Richard
Schwartz's motion to dismiss brought pursuant to Rule 12(b)(2) for
lack of personal jurisdiction in the first-filed lawsuit in this
MDL, Mutnick v. Clearview, 20-cv-0512. The Court also presumes
familiarity with its Jan. 27, 2022 motion to dismiss ruling in
relation to retail Defendant Macy's and the March 18, 2022 ruling
denying Macy's motion to certify an interlocutory appeal under 28
U.S.C. Section 1292(b).
In their first amended consolidated class action complaint, the
Plaintiffs allege the Clearview Defendants covertly scraped over
three billion photographs of facial images from the internet and
then used artificial intelligence algorithms to scan the face
geometry of each individual depicted to harvest the individuals'
unique biometric identifiers and corresponding biometric
information. The Plaintiffs, thus, allege the Clearview Defendants'
conduct violated their privacy rights and the Defendants' use of
their biometric information was without their knowledge and
consent. The centerpiece of this MDL and the Plaintiffs' class
action lawsuit is the Illinois Biometric Information Privacy Act,
740 ILCS 14/1, et seq.
Because the Court's Feb. 14, 2022 ruling did not dispose of this
case in its entirety, the Court reviews the Defendants'
reconsideration motion under Rule 54(b) of the Federal Rules of
Civil Procedure, which allows the Court to exercise its inherent
authority to reconsider its interlocutory orders because such
orders are subject to revision at any time before the entry of
judgment adjudicating all the claims.
In the present motion, the Clearview Defendants request the Court
to reconsider the following: (1) Defendants Thomas Mulcaire and
Rocky Mountain Data Analytics, LLC waived their personal
jurisdiction defenses; (2) Mulcaire and Rocky Mountain waived the
government-contractor exemption pursuant to 740 ILCS 14/25(e); (3)
the Plaintiffs have Article III standing to bring their state law
claims in Counts 8-12 and 14; and (4) the Plaintiffs have Article
III standing to bring their BIPA Section 15(c) claims in Counts 3
and 4. The Defendants also ask the Court to clarify whether
Defendant Mulcaire was dismissed from this lawsuit.
Waiver
The Court starts with Mulcaire's and Rocky Mountain's waiver of
their personal jurisdiction defense. To give context, in their
opening brief, the only time the Clearview Defendants raised
Mulcaire's and Rocky Mountain's personal jurisdiction defense was
in footnote #2, which stated: "Mulcaire and Rocky Mountain also
should be dismissed because the Court lacks personal jurisdiction
over them. For similar reasons previously discussed by Clearview,
Mulcaire and Rocky Mountain did not purposefully avail themselves
of Illinois to establish minimum contacts with the state," Mutnick
v. Clearview AI, Inc., 20-cv-512.
Judge Coleman notes that the citation to Mutnick and the cited
briefs in footnote #2 support the Defendants' unsuccessful attempt
to dismiss Defendants Ton-That and Schwartz based on the lack of
personal jurisdiction. Because the cursory argument in footnote #2
was woefully inadequate, the Court concluded Mulcaire and Rocky
Mountain had waived their personal jurisdiction argument.
Now, the Clearview Defendants argue the Court's conclusion was a
"manifest error" because they cited fifteen pages of briefing about
personal jurisdiction in Mutnick.
Judge Coleman notes that there is no question those briefs
discussed the legal authority supporting the Defendants' Rule
12(b)(2) motion to dismiss based on personal jurisdiction, but the
factual focus was entirely on Defendants Ton-That and Schwartz.
Indeed, Mulcaire and Rocky Mountain were not named defendants in
Mutnick or Hall v. CDW Government, LLC, 20-cv-0846. In any event,
analyzing personal jurisdiction is a fact-specific task, and the
Clearview Defendants did not provide the Court any factual reasons
why Mulcaire and Rocky Mountain did not have sufficient contacts
with Illinois. Therefore, the Court did not commit a manifest error
in this respect.
Likewise, Mulcaire and Rocky Mountain waived their argument under
the government-contractor exemption to BIPA, 740 ILCS 14/25(e),
because they made this argument for the first time in their reply
brief, Judge Coleman points out. In the present motion, the
Defendants argue the only reason they made this argument for the
first time in reply was due to a Cook County Circuit Court decision
issued after they filed their motion to dismiss, namely, Thornley
v. CDW-Government, LLC, 20 CH 04346 (Cir. Ct. Cook Cty. June 25,
2021). The Defendants contend this was the first time any court
directly addressed the government-contractor exemption under
Section 25(e).
That may be, but the main reason why arguments made for the first
time in reply briefs are waived is because the opposing side has
not had the opportunity to address the issue, Judge Coleman states.
The Defendants, nonetheless, contend they put the Plaintiffs on
notice of the state court Thornley decision in a Feb. 2, 2022
supplemental authority letter, but that letter discusses a Northern
District of Illinois case and personal jurisdiction. This argument
fails, Judge Coleman holds.
Meanwhile, the Defendants contend since the Court will eventually
need to address Mr. Mulcaire's and RM's government-contractor
defense, it would be more economical to do so now. The Court
declines the Defendants' invitation to address their argument at
this juncture because neither side has fully developed it. The
Court, thus, denies this aspect of the Defendants' reconsideration
motion.
Article III Standing
The Defendants also assert the Court committed a manifest error of
law in concluding the Plaintiffs had Article III standing to bring
their state court claims in Counts 8, 9, 11, 12, and 14 because the
Court's conclusion conflicts with TransUnion, LLC v. Ramirez, 141
S.Ct. 2190, 2200 (2021), and Thornley v. Clearview, 984 F.3d 1241,
1246 (7th Cir. 2021).
The Defendants specifically argue the Plaintiffs do not have
Article III standing relying on Thornley where the Seventh Circuit
concluded the Plaintiffs did not suffer any injury from the
Defendant's violation of Section 15(c) except for statutory
violations, and the present Plaintiffs' allegations in the state
court claims are "virtually identical" to the Thornley claims.
Judge Coleman opines that the Defendants' reliance on the Seventh
Circuit's decision in Thornley is misplaced because in that matter
the plaintiffs purposely brought bare BIPA claims with no
allegations of injuries to avoid federal court jurisdiction.
Despite the Defendants' argument to the contrary, class Plaintiffs
currently include allegations of injury in their first amended
consolidated class action complaint, including that the Defendants'
nonconsensual taking and use of the Plaintiffs' biometric
information exposed them to numerous imminent and impending
injuries.
Moreover, the Defendants' reliance on TransUnion for the
proposition that a victim of a privacy harm can only suffer an
injury-in-fact for Article III standing if the victim's information
is disseminated to a third-party is also unavailing, Judge Coleman
holds. To clarify, in the context of the Fair Credit Reporting Act
("FCRA"), the TransUnion Court concluded that certain class members
whose credit reports were not disseminated to third parties did not
suffer a concrete injury-in-fact, keeping in mind that history and
tradition offer a meaningful guide to the types of cases that
Article III empowers federal courts to consider.
As the TransUnion Court clarified, "with respect to the
concrete-harm requirement in particular, this Court's opinion in
Spokeo v. Robins indicated that courts should assess whether the
alleged injury to the plaintiff has a 'close relationship' to a
harm 'traditionally' recognized as providing a basis for a lawsuit
in American courts" and that this "inquiry asks whether plaintiffs
have identified a close historical or common-law analogue for their
asserted injury." In TransUnion, the Supreme Court analogized the
FCRA violations to the tort of defamation, which requires that the
defamatory statement be published to a third party. Accordingly,
the TransUnion Court concluded that plaintiffs whose reports were
not disseminated to third parties did not allege a concrete
injury-in-fact under the FCRA.
The Seventh Circuit has analogized BIPA violations to common law
privacy torts, which are different common law torts than
defamation, Judge Coleman notes, citing Fox v. Dakkota Integrated
Sys., LLC, 980 F.3d 1146, 1153 (7th Cir. 2020); Bryant v. Compass
Group USA, Inc., 958 F.3d 617, 627 (7th Cir. 2020). As the Bryant
court held: "Bryant was asserting a violation of her own
rights--her fingerprints, her private information--and that this is
enough to show injury-in-fact without further tangible
consequences. This was no bare procedural violation; it was an
invasion of her private domain, much like an act of trespass would
be."
Therefore, Judge Coleman holds that the Defendants' argument based
on TransUnion is without merit.
Judge Coleman points out that the remainder of the Defendants'
arguments concerning Article III standing and the Plaintiffs' state
law claims were made for the first time in their reconsideration
motion, and therefore, are waived. Otherwise, the Defendants'
arguments concerning "demonstratively false allegations" and the
Plaintiffs' lack of evidentiary support are best left for summary
judgment or trial.
Next, the Defendants maintain the Plaintiffs do not have Article
III standing to bring their BIPA Section 15(c) claims in Counts 3
and 4, although the Defendants admit that they did not move to
dismiss these claims in their motion to dismiss. Again, arguments
raised for the first time in a motion for reconsideration are
waived, Judge Coleman says.
Defendant Mulcaire
In addition, the Defendants seek clarification of a footnote in the
Court's Feb. 14, 2022 ruling about Defendant Mulcaire. The section
of the ruling discussed whether Ton-That and Schwartz could be
liable for Clearview's conduct under Delaware's personal
participation doctrine.
The footnote concerning Mulcaire stated: "Plaintiffs do not argue
that Clearview's General Counsel, Thomas Mulcaire, personally
participated in the privacy torts by directing, ordering,
ratifying, approving, or consenting to the tortious acts.
Therefore, he is not individually liable for Clearview's actions."
The footnote, however, makes no mention of the personal
participation doctrine in relation to Mulcaire's involvement with
Rocky Mountain, Judge Coleman observes. Therefore, Mulcaire remains
a Defendant to this lawsuit.
On a final note, the Court reminds the parties that motions for
reconsideration do not provide a vehicle for rearguing previously
rejected motions. As the Seventh Circuit instructs, manifest errors
of law or fact rarely arise and motions for reconsideration should
be equally as rare. With this in mind, before filing any further
reconsideration motions, the parties must first seek leave from the
Court to do so.
Conclusion
The Court, in its discretion, denies the Defendants' motion for
reconsideration, but grants the motion for clarification, namely,
that Mulcaire remains a defendant to this lawsuit. The Court also
denies the Defendants' request for oral argument on their motion
for reconsideration because it is unnecessary. Before filing any
further reconsideration motions in this lawsuit, the parties must
first seek leave from the Court to do so.
A full-text copy of the Court's Memorandum Opinion and Order dated
July 25, 2022, is available at https://tinyurl.com/2p8u37dt from
Leagle.com.
CREDIT CONTROL: Strasser Suit Removed to E.D. New York
------------------------------------------------------
The case styled as Sara Strasser, individually and on behalf of all
others similarly situated v. Credit Control Services, Inc. d/b/a
Credit Collection Services, Case No. 520675/2022 was removed from
Supreme Court of the State of New York County of Kings, to the U.S.
District Court for the Eastern District of New York on Aug. 3,
2022.
The District Court Clerk assigned Case No. 1:22-cv-04578 to the
proceeding.
The nature of suit is stated as Consumer Credit.
Credit Control -- https://www.credit-control.com/ -- is a
nationally licensed provider of customized, performance-driven
receivables management services that was founded in 1989.[BN]
The Plaintiff appears pro se.
The Defendants are represented by:
Matthew Brady Johnson, Esq.
GORDON REES SCULLY MANSUKHANI, LLP
One Battery Park Plaza, 28th Fl.
New York City, NY 10004
Phone: (212) 402-2298
Fax: (212) 269-5505
Email: mbjohnson@grsm.com
CRICKET WIRELESS: District Court Decertifies Class in Freitas Suit
------------------------------------------------------------------
In the case, URSULA FREITAS, Plaintiff v. CRICKET WIRELESS, LLC,
Defendant, Case No. C 19-07270 WHA (N.D. Cal.), Judge William A.
Alsup of the U.S. District Court for the Northern District of
California grants the Defendant's motion to decertify the class and
denies as moot the Plaintiff's motion to amend the class
definition.
Plaintiff Freitas claims that the Defendant advertised 4G wireless
service and sold 4G-capable phones in markets where it did not
actually provide 4G coverage. Thus, she alleges harm on behalf of a
class of similarly situated Cricket customers who paid for 4G
phones and coverage but received only 3G coverage, which was slower
and cheaper than 4G coverage.
A previous order in this action certified the following FRCP
23(b)(3) class: All persons in the United States with a customer
address in a geographic market with no Cricket 4G/LTE network
coverage who between Nov. 1, 2012, and Sept. 30, 2014, purchased
from Cricket a 4G/LTE monthly plan for service on LegacyCricket's
network, or later activated a 4G/LTE plan with the device for
service on LegacyCricket's network.
Thereafter, the Defendant filed a motion to compel arbitration,
arguing certain class members were subject to arbitration due to
contracts included inside its phone boxes. Among other reasons, it
argued certain class members were subject to arbitration because
until May 18, 2014, it placed a Quick Start Guide inside phone
boxes, which included an arbitration provision.
Because the parties had yet to disseminate class notice, an order
on the motion to compel arbitration merely excluded certain class
members from the class definition rather than order them to
arbitrate.
That order excluded only the following persons: All class members
who made a purchase prior to May 18, 2014, and who, at the time of
purchase, resided in Delaware, Florida, Illinois, Indiana,
Louisiana, Maine, Maryland, New York, Rhode Island, South Dakota,
Tennessee, Washington, West Virginia, and Wisconsin, except for
those who opted out of arbitration.
Both parties have appealed that order. Briefing on appeal will be
complete by Oct. 21, 2022.
The class definition is currently as follows: All persons in the
United States with a customer address in a geographic market with
no Cricket 4G/LTE network coverage who purchased from Cricket a
4G/LTE monthly plan for service on LegacyCricket's network, or
later activated a 4G/LTE plan with the device for service on
LegacyCricket's network: (1) between Nov. 1, 2012, and May 17,
2014, having a customer address in the state of Alabama, Alaska,
Arizona, Arkansas, California, Colorado, Connecticut, Georgia,
Hawaii, Idaho, Iowa, Kansas, Kentucky, Massachusetts, Michigan,
Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New
Hampshire, New Jersey, New Mexico, North Carolina, North Dakota,
Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Utah,
Vermont, Virginia, or Wyoming; or (2) between May 18, 2014, and
Sept. 30, 2014; excluding the 15,529 persons within either of
groups (1) and (2) above who, during or after May 2017, accepted
the Terms and Conditions via electronic signature at one of
defendant's stores; and excluding the 438 persons within either of
groups (1) and (2) above who accepted the Terms and Conditions on
defendant's website.
As a result, the sole plaintiff and class representative, Freitas,
now falls outside the class definition. Specifically, the Plaintiff
had a customer address in Washington and made a purchase on Oct.
22, 2013.
The Defendant moves to decertify on two grounds: (1) the
Plaintiff's damages model does not comport with either of her two
theories of class-wide liability; and (2) she is inadequate to
represent the class because she falls outside the class definition.
The Plaintiff moves to amend the class definition. In the briefing
on her motion to amend, the Plaintiff contends the Defendant waived
the right to arbitrate against her.
Judge Alsup finds that time and time again, the Plaintiff's counsel
has made missteps, and the Court has found ways to excuse them. Of
significance are the 15 potential class representatives who have
been dismissed throughout the action. But, at long last, the
Plaintiff's counsel have overreached too far and made too critical
a mistake. There will be no second try, for to allow retries on
such fundamentals would encourage overreaching. The counsel and
their experts should have been reasonable from the start and lived
up to the promises made at class certification.
For these reasons, Judge Alsup decertified the class. Within two
weeks, the counsel must advise as to what notice needs to be given
to the class regarding the decertification.
A full-text copy of the Court's July 29, 2022 Order is available at
https://tinyurl.com/4xejx86v from Leagle.com.
DAVE & BUSTER'S: Pearson Appeals Arbitration Bid Ruling to 9th Cir.
-------------------------------------------------------------------
GERY PEARSON is taking an appeal from a court ruling granting the
Defendants' motion to compel arbitration, strike class and
collective claims, and stay proceedings pending Plaintiff's
individual arbitrations in the lawsuit entitled Natasha York, et
al., on behalf of themselves and all others similarly situated,
Plaintiffs, v. Dave & Buster's Incorporated, et al., Defendants,
Case No. 2:21-cv-01130-JJT, in the U.S. District Court for the
District of Arizona.
Plaintiffs Natasha York and Gery Pearson brought this class action
suit against the Defendants for their failure to pay them and all
other similarly situated restaurant workers their earned minimum
wages in violation of the Fair Labor Standards Act and the Arizona
Minimum Wage Act.
On October 26, 2021, the Defendants filed a motion to compel
arbitration, strike class and collective claims, and stay
proceedings pending Plaintiff's individual arbitrations, which the
court granted on June 3, 2022, through an Order entered by District
Judge John J. Tuchi. The court granted the Defendants' motion
because the Plaintiffs entered into Arbitration Agreements, which
contained express collective and class action waivers. Moreover,
the court ruled that the purported opt-in Plaintiffs are attempting
to use the tools of a collective action to become a part of this
lawsuit that was in essence improperly brought as a collective
action. The court also granted the Defendants' request to stay
proceedings pending Plaintiff's individual arbitrations pursuant to
the Federal Arbitration Act, 9 U.S.C. Sec. 3.
The appellate case is captioned as Gery Pearson v. USDC-AZP, Case
No. 22-70152, in the United States Court of Appeals for the Ninth
Circuit, filed on July 20, 2022. [BN]
Plaintiff-Petitioner GERY PEARSON, on behalf of herself and all
others similarly situated, is represented by:
Kelly E. Cook, Esq.
WYLY & COOK, PLLC
1415 N. Loop, W., Suite 1000
Houston, TX 77008
Telephone: (713) 236-8330
Defendants-Respondents UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF ARIZONA, PHOENIX, et al., are represented by:
Kathryn B. Blakey, Esq.
LITTLER MENDELSON, P.C.
2001 Ross Avenue
Dallas, TX 75201
Telephone: (214) 880-8100
- and -
Robert Shawn Oller, Esq.
LITTLER MENDELSON, PC
2425 E. Camelback Road
Phoenix, AZ 85016
Telephone: (602) 474-3600
EDUCATION MINNESOTA: Summary Judgments in Hoekman Suit Affirmed
---------------------------------------------------------------
The United States Court of Appeals for the Eighth Circuit affirms
the District Court's granting of summary judgments in favor of the
Unions in the lawsuits entitled Linda Hoekman, Plaintiff-Appellant,
Mary Dee Buros, Plaintiff-Appellant, Paul Hanson, all appellants on
behalf of themselves and others similarly situated,
Plaintiff-Appellant v. Education Minnesota, as representative of
the class of all chapters and affiliates of Education Minnesota;
Anoka Hennepin Education Minnesota, as representative of the class
of all chapters and affiliates of Education Minnesota; National
Education Association; American Federation of Teachers,
Defendants-Appellees, Shakopee Education Association, as
representatives of the class of all chapters and affiliates of
Education Minnesota, Defendant-Appellee, Freedom Foundation; Joseph
Johnson; National Right to Work Legal Defense Foundation, Inc.,
Amici on Behalf of Appellant(s). Thomas P. Piekarski, on behalf of
himself and others similarly situated, Plaintiff-Appellant v.
American Federation of State, County and Municipal Employees,
Council No. 5, as representative of the class of all chapters and
affiliates of the American Federation of State, County, and
Municipal Employees, Council No. 5, Defendant-Appellee, Linda
Hoekman, Plaintiff-Appellant, Mary Dee Buros, Plaintiff-Appellant,
Paul Hanson, all appellants on behalf of themselves and others
similarly situated, Plaintiff-Appellant v. Education Minnesota, as
representative of the class of all chapters and affiliates of
Education Minnesota; Anoka Hennepin Education Minnesota, as
representative of the class of all chapters and affiliates of
Education Minnesota; National Education Association; American
Federation of Teachers, Defendants-Appellees, Shakopee Education
Association, as representatives of the class of all chapters and
affiliates of Education Minnesota, Defendant-Appellee, Thomas P.
Piekarski, on behalf of himself and others similarly situated,
Plaintiff-Appellant v. American Federation of State, County and
Municipal Employees, Council No. 5, as representative of the class
of all chapters and affiliates of the American Federation of State,
County, and Municipal Employees, Council No. 5, Defendant-Appellee,
Case Nos. 21-1366, 21-1372, 21-2675, 21-2687 (8th Cir.).
The Appellants in these cases are four Minnesota state employees,
who sued unions that represented their local bargaining units. In
light of Janus v. American Federation of State, County, & Municipal
Employees, 138 S.Ct. 2448 (2018), the employees sought monetary
relief based on the amount of so-called "fair-share" fees that were
deducted from employee paychecks for the benefit of the Unions. The
District Court (the Honorable Susan Richard Nelson, U.S. District
Court for the District of Minnesota) granted summary judgment in
favor of the Unions.
I.
Minnesota law permits public employees to bargain collectively with
the State by designating a labor union to serve as the exclusive
representative for employees in their bargaining unit (Minn. Stat.
Section 179A.06, subdiv. 2.). Employees may decline to join the
union. If an employee chooses not to join, however, state law
permits the union to require the employee to contribute a
"fair-share" fee equal to the cost of membership dues, less the
cost of benefits available only to members. The statute caps these
fees at eighty-five percent of what the union charges for regular
membership dues. To collect fees from a non-member employee, the
union must send a written notice to the employee's public employer,
at which point the employer is required to "deduct the fee from the
earnings of the employee and transmit the fee" to the union after
thirty days.
In Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the
Supreme Court upheld a similar regime that allowed public-sector
unions to compel the payment of fees from state employees who chose
not to join the unions. The Court concluded that the unions could
extract fair-share fees from non-members so long as the fees were
used to fund projects "germane to [the unions'] duties as
collective-bargaining representative," rather than ideological or
political causes. Forty-one years later in Janus, the Supreme Court
overruled Abood. The Court held that public-sector unions violated
the First Amendment by deducting fair-share fees from non-member
employees without first obtaining affirmative consent from the
employees.
The Employees in this case sued the public-sector Unions that
represented their bargaining units under 42 U.S.C. Section 1983,
alleging violations of their rights under the First Amendment.
After discovery, the District Court granted summary judgment for
the Unions.
Plaintiffs-Appellants Paul Hanson and Linda Hoekman are public
school teachers. Hanson declined to join the Union that represented
his bargaining unit. Hoekman originally joined her Union but then
quit around 2006. The Unions deducted fair-share fees from their
paychecks until the Supreme Court decided Janus. The teachers sued
the Unions, and asserted that they were entitled to a refund of
these fees. The District Court concluded that the Unions' good
faith reliance on the Minnesota statute and forty years of Supreme
Court precedent following Abood provided a defense to liability
under Section 1983.
On appeal, the Employees argue that the District Court erred by
granting summary judgment in favor of the Unions on each of the
claims for retrospective relief.
Circuit Judge Steven Colloton, writing for the Panel, notes that
the Panel reviewed the District Court's grant of summary judgment
de novo, viewing the evidence in the light most favorable to the
employees, citing Odom v. Kaizer, 864 F.3d 920, 921 (8th Cir.
2017). The Employees also challenge the court's decision to award
certain litigation costs to the Unions, and the Panel reviewed that
determination for abuse of discretion.
II.
Judge Colloton notes that In Brown v. American Federation of State,
County & Municipal Employees, No. 21-1640 (8th Cir. July 25, 2022),
the Eighth Circuit joins other circuits in holding that
public-sector unions are entitled to a good-faith defense to
liability under Section 1983 if they relied on a then-valid statute
to collect fair-share fees from a non-member employee before Janus
was decided.
Here, as in Brown, the Unions relied on Abood and Minn. Stat.
Section 179A.06 to collect fair-share fees from Hanson and Hoekman.
After the Supreme Court's decision in Janus, the Unions stopped
deducting fees.
Judge Colloton opines that even if the good-faith defense would not
apply to claims for restitution, the claims at issue here are not
in that category. Judge Colloton adds that Hanson and Hoekman
cannot now "embed an Abood claim in a Janus claim and thereby shift
the burdens of pleading, proof, and persuasion," citing Lee v. Ohio
Educ. Ass'n, 951 F.3d 386, 392 (6th Cir. 2020).
The Unions' reliance on Section 179A.06 was objectively reasonable,
Judge Colloton holds. It is an open question whether subjective
intent is relevant to the defense, but the Employees did not
present a submissible case that the Unions collected fair-share
fees in subjective bad faith in any event, Judge Colloton explains.
Therefore, the District Court correctly granted summary judgment
for the Unions on these claims.
III.
Plaintiffs-Appellants Piekarski and Buros raise different claims,
according to Judge Colloton. In Piekarski's case, there is a
threshold question of mootness. The District Court concluded that
claims arising after Piekarski's attempted resignation from the
Union are moot, because the Union sent him a check for the total
amount of post-resignation dues paid, plus interest. Piekarski
contends that because he refused to accept the Union's check, his
claims are not moot.
The Union characterizes the check as an "actual payment" of the
money that Piekarski seeks, but an uncashed check is not materially
different from an unaccepted offer of settlement, Judge Colloton
notes. Unless the check is cashed, it "conveys only a hope that the
bank account will have the promised funds," the Judge opines,
citing Bais Yaakov of Spring Valley v. ACT, Inc., 12 F.4th 81,
94-95 (1st Cir. 2021).
The parties do not dispute that Piekarski refuses to cash the
Union's check, so his interest in the lawsuit remains just what it
was before, Judge Colloton holds, citing Campbell-Ewald, 577 U.S.
at 162. Judge Colloton explains that one might think that Piekarski
has no right to litigate in federal court about whether he is
entitled to relief that is already present for the taking, but that
view was rejected in Campbell-Ewald. Therefore, Piekarski's claims
are not moot.
IV.
Judge Colloton next addresses the merits of the claims brought by
Buros and Piekarski. The Panel concludes that the Unions are
entitled to judgment on these claims as well.
The Unions are private actors, and their conduct may be deemed
state action only if that conduct is fairly attributable to the
State, Judge Colloton says.
The claims by Buros and Piekarski cannot clear this hurdle, Judge
Colloton finds. Buros and Piekarski each joined their Unions and
paid membership dues. They do not dispute the State's authority in
general to deduct dues according to a private agreement. Rather,
the alleged harms are that the unions obliged them to pay the
"compulsory portions" of their dues, and that the Unions continued
to collect full membership dues for some time after they attempted
to resign, without first obtaining a valid waiver of First
Amendment rights.
The source of the Unions' right to collect these dues, however, is
not state authority; it is the private agreement between the Unions
and the Employees, Judge Colloton points out. The Unions do not
collect dues "pursuant to" any state statute. While Buros and
Piekarski emphasize that the State remits wages based on
collective-bargaining agreements between the State and the Unions,
these agreements do not enable the Unions to collect dues from any
particular employee. Instead, whether a union can collect
membership dues from a given employee turns on the "private
judgments" of the employee and the union. The employee must agree
to join the union, and must authorize his or her employer to remit
dues to the union on his or her behalf. The State then honors these
authorizations by transmitting dues to the union. But it is the
terms of the employee's union membership, not any state action,
that create the employee's obligation to pay and the union's right
to collect.
The harm allegedly suffered by Buros and Piekarski is attributable
to private decisions and policies, not to the exercise of any
state-created right or privilege, Judge Colloton finds. Without the
requisite state action, Buros and Piekarski cannot show that the
unions violated their constitutional rights.
The Eighth Circuit, therefore, affirms the grant of summary
judgment for the Unions on their claims (albeit on the merits with
respect to Piekarski), and need not address possible alternative
grounds in support of the judgment.
V.
Finally, the Employees assert that the District Court erred by
awarding certain litigation costs to the Unions. They maintain that
the unions could have moved to dismiss the complaints at the outset
of the case, so they should not be responsible for costs associated
with discovery and class-action certification.
The Unions prevailed on motions for summary judgment, Judge
Colloton notes. The rules of civil procedure provide that costs
"should be allowed to the prevailing party," unless the court or a
federal statute or rule directs otherwise, Fed. R. Civ. P. 54(d).
Judge Colloton finds that the Employees point to no authority that
requires a district court to reduce an award of costs because a
defendant opted to forgo a motion to dismiss and to file a
dispositive motion only after developing a factual record. A
defendant may choose how best to defend a lawsuit, and if the case
is resolved in favor of the defense on a motion for summary
judgment, then the defendant is presumptively entitled to costs.
The Eighth Circuit, thus, concludes that the District Court did not
abuse its discretion by awarding costs to the Unions.
A full-text copy of the Court's Opinion dated July 25, 2022, is
available at https://tinyurl.com/ydkjsemx from Leagle.com.
ELON UNIVERSITY: Delacruz Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Elon University. The
case is styled as Emanuel Delacruz, on behalf of himself and all
other persons similarly situated v. Elon University, Case No.
1:22-cv-06571 (S.D.N.Y., Aug. 2, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Elon University -- https://www.elon.edu/ -- is a private university
in Elon, North Carolina and is among the top 40 business schools in
the U.S. and is accredited by AACSB International.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: michael@gottlieb.legal
GEORGIA POWER: Wins Summary Judgment Bid on Class Action
---------------------------------------------------------
Southern Co. Gas disclosed in its Form 10-K Report for the fiscal
year ended December 31, 2021, filed with the Securities and
Exchange Commission on July 28, 2022, that a summary judgment to
its subsidiary Georgia Power was granted and dismissed Georgia
Power's cross appeal with regards to a putative class action
against Georgia Power in the Superior Court of Fulton County,
Georgia alleging that Georgia Power's collection in rates of
amounts for municipal franchise fees (which fees are paid to
municipalities) exceeded the amounts allowed in orders of the
Georgia PSC and alleging certain state law claims.
This case has been ruled upon and appealed numerous times over the
last several years.
In 2019, the Georgia Public Service Commission issued an order that
found Georgia Power has appropriately implemented the municipal
franchise fee schedule. In March 2021, the Superior Court of Fulton
County granted class certification and Georgia Power's motion for
summary judgment and the plaintiffs filed a notice of appeal.
In April 2021, Georgia Power filed a notice of cross appeal on the
issue of class certification. In December 2021, the Georgia Court
of Appeals affirmed the Superior Court's ruling that granted
summary judgment to Georgia Power and dismissed Georgia Power's
cross appeal on the issue of class certification as moot. Also in
December 2021, the plaintiffs filed a petition for writ of
certiorari to the Georgia Supreme Court.
Southern Company is a holding company that owns all of the
outstanding common stock of three traditional electric operating
companies, Southern Power Company, and Southern Company Gas based
in Georgia.
GLOBAL INSTITUTE: Court Dismisses Mendez Suit Without Prejudice
---------------------------------------------------------------
Judge Linda Lopez of the U.S. District Court for the Southern
District of California dismisses the case, CHRISTINA MENDEZ,
individually and on behalf of all others similarly situated,
Plaintiff v. GLOBAL INSTITUTE OF STEM CELL THERAPY AND RESEARCH,
USA, et al., Defendants, Case No. 20cv915-LL-BLM (S.D. Cal.),
without prejudice for failure to sufficiently allege federal
subject matter jurisdiction.
Ms. Mendez alleges federal jurisdiction on the basis of the Class
Action Fairness Act of 2005, 28 U.S.C. Section 1332(d). She filed
the putative consumer class action complaint on May 15, 2020. The
operative First Amended Complaint was filed on July 27, 2020.
The FAC asserts the following claims: (1) violation of California's
Unfair Competition Law, Cal. Bus. & Prof. Code Sections 17200 et
seq.; (2) violation of California's False Advertising Law ("FAL"),
Cal. Bus. & Prof. Code Sections 17500 et seq.; (3) violation of
California's Consumers Legal Remedies Act ("CLRA"), Cal. Civ. Code.
Sections 1750 et seq.; (4) breach of express warranty; (5) quasi
contract; (6) breach of fiduciary duty; (7) fraudulent concealment;
(8) intentional misrepresentation; and (9) negligent
misrepresentation.
Defendants Global Institute of Stem Cell Therapy and Research, USA
("Giostar"), Giostar Labs, Inc., Anand Srivastava, Deven Patel,
Siddharth Bhavsar, and Scott Kirkpatrick filed motion to dismiss on
Aug. 31, 2020.
CAFA vests the federal courts with 'original' diversity
jurisdiction over class actions of 100 or more persons if: (1) the
aggregate amount in controversy exceeds $5 million, and (2) any
class member is a citizen of a state different from any defendant."
The enactment of CAFA did not alter the longstanding rule that the
proponent of federal jurisdiction bears the burden of establishing
that jurisdiction.
Judge Lopez finds that the Plaintiff's prayer for relief is silent
as to what amount of damages or restitution she seeks and the FAC
otherwise fails to calculate or explain how the $5 million bar will
be met in light of the injuries alleged. Her allegations appear to
rest solely on Defendants claim that "they 'successfully treated'
4,000 patients between 2011 and 2016." She does not provide any
basis for the claim that there are thousands or hundreds of
putative class members, either in California or in other states, or
that the combined amount in controversy would meet the
jurisdictional threshold. The Plaintiff's conclusory allegation
that the amount in controversy exceeds $5,000,000 is insufficient,
without supporting factual allegations, to establish that the
amount in controversy requirements under CAFA has been met.
Irrespective of whether the amount in controversy requirement can
be met, Judge Lopez finds that the Plaintiff has failed to allege
that minimal diversity exists, as required by CAFA. The Plaintiff's
complaint fails to allege her own citizenship and fails to properly
allege the citizenship of defendants because she only alleges the
residence of the individual defendants and does not allege both the
principal place of business and state of incorporation of the two
corporate defendants. Assuming, arguendo, that the Plaintiff and
the Defendants are citizens of California, the minimal diversity
requirement of CAFA would not be met.
A conclusory and prospective allegation that at least one unknown
member of a nationwide class will result in minimal diversity is
not sufficient to satisfy the pleading requirements for CAFA
jurisdiction. Because the Plaintiff has not properly alleged the
citizenship of any named party, she has not alleged minimal
diversity as required for subject matter jurisdiction under CAFA.
Therefore, the FAC must be dismissed.
Judge Lopez also has concerns about whether she must decline to
assert jurisdiction pursuant to the exceptions articulated in CAFA.
She says, the Plaintiff has not made any more specific allegations
regarding the California and nationwide class members than the
allegations regarding numerosity and citizenship as noted above.
Based on the allegations present in the FAC, she is unable to
determine whether it must abstain from exercising jurisdiction
under CAFA.
On the face of the FAC, it appears possible that the Plaintiff and
all Defendants may be citizens of California, where the action was
filed. However, given that the Plaintiff has not properly alleged
the citizenship of any named party, Judge Lopez is unable to
determine whether CAFA's mandatory exceptions would apply. If the
Plaintiff amends her complaint following this Order, her renewed
allegations should also address whether the local controversy or
home-state controversy exceptions would apply.
Recognizing that the issues of diversity, amount in controversy,
and the applicability of CAFA's jurisdictional exceptions may be
intertwined with the Plaintiff's claims on behalf of the putative
nationwide class, Judge Lopez also notes that the Plaintiff's
fourth through ninth causes of action allege claims for "breach of
express warranty," "quasi-contract," "breach of fiduciary duty,"
"fraudulent concealment," "intentional misrepresentation," and
"negligent misrepresentation," on behalf of herself and all members
of the proposed nationwide class and California subclass, without
citation to law. The Plaintiff's failure to identify which state
laws that govern the claims brought on behalf of the putative
nationwide class means that the Court cannot determine whether
those claims have been adequately pled.
Relatedly, the absence of specific state law claims for a putative
nationwide class implicates issues of Article III standing, because
"in the absence of a named Plaintiff who has purchased a product
within the relevant state -- even if there are sufficient
allegations of injury under other States' or federal law -- there
can be no determination that an interest was harmed that was
legally protected under the relevant state's laws." Accordingly,
any claims set forth in an amended complaint should include
jurisdictional allegations that do more than permit the Court to
infer the mere possibility of jurisdiction.
Accordingly, the FAC is dismissed without prejudice. Pursuant to 28
U.S.C. Section 1653, the Plaintiff is granted leave to file an
amended complaint to cure the deficiencies identified. If she
chooses to file an amended complaint, she must do so no later than
Aug. 29, 2022. Any amended complaint must make a plausible showing
that CAFA's jurisdictional thresholds for minimal diversity and
amount in controversy have been met and must permit the Court to
assess whether CAFA's mandatory exceptions apply. Failure to file
an amended complaint will result in a final order dismissing this
civil action either for want of subject matter jurisdiction or for
failure to prosecute in compliance with a court order requiring
amendment.
The Defendants' motion to dismiss is denied without prejudice as
moot.
A full-text copy of the Court's July 29, 2022 Order is available at
https://tinyurl.com/rv4w53sj from Leagle.com.
HANNAFORD BROS: Bid to Certify Class Responses Due Sept. 2
----------------------------------------------------------
In the class action lawsuit captioned as Prinzo v. Hannaford Bros.
Co., LLC, Case No. 1:21-cv-11901 (D. Mass.), the Hon. Judge William
G. Young entered an order granting motion for Extension of Time to
September 2, 2022 to Submit Opposition to Plaintiff's Motion for
Class Certification.
-- Motion to certify class responses due by Sept. 2, 2022.
The nature involves Labor-related issues.
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.[CC]
HARRY'S USA: Slade Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Harry's USA, Inc. The
case is styled as Linda Slade, individually and as the
representative of a class of similarly situated persons v. Harry's
USA, Inc., Case No. 1:22-cv-06592 (S.D.N.Y., Aug. 3, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Harry's USA -- https://www.harrys.com/en/us -- offers shaving tools
and well-rounded skin care for every man: thoughtfully made,
honestly priced, with a quality guarantee.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
HOBBY GAMES: Toro Files ADA Suit in S.D. New York
-------------------------------------------------
A class action lawsuit has been filed against Hobby Games
Distribution, Inc. The case is styled as Andrew Toro, on behalf of
herself and all others similarly situated v. Hobby Games
Distribution, Inc., Case No. 1:22-cv-06547 (S.D.N.Y., Aug. 2,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Hobby Games Distribution, Inc. is a company in Santa Clara,
California specializing in toys, hobby goods and supplies.[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
JAMES CHOICE: Texas Court Dismisses Petition for Writ of Mandamus
-----------------------------------------------------------------
The Court of Appeals of Texas, Fifth District, Dallas, dismisses a
petition for writ of mandamus filed in the lawsuit titled IN RE
JAMES CHOICE, RENEKA TOWERS, ALYSIA CROW, NENA ELDRIDGE, CAROL
OSTEEN, AND RODERICK NICHOLS, RELATORS, Case No. 05-22-00315-CV
(Tex. App.).
The Relators filed a petition for writ of mandamus seeking to
compel the respondent trial court judge to rule on their pending
motion for class certification.
On July 18, 2022, the Court received the trial court's signed Order
Certifying Class Action, Findings of Fact and Conclusions of Law
with Trial Plan. The original proceeding has been rendered moot by
the trial court's entry of the Order. Accordingly, the Court
dismisses the petition.
A full-text copy of the Court's Memorandum Opinion dated July 25,
2022, is available at https://tinyurl.com/d2fk6w4d from
Leagle.com.
KING BABY STUDIO: Dicks Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against King Baby Studio,
Inc. The case is styled as Valerie Dicks, on behalf of herself and
all others similarly situated v. King Baby Studio, Inc., Case No.
1:22-cv-06536-LJL (S.D.N.Y., Aug. 2, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
King Baby Studio -- https://kingbabystudio.com/ -- offers designer
jewelry handcrafted in the USA with handcrafted pieces that unite
chunky sterling silver with precious stones and leather.[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
MDL 2913: JUUL Labs Appeals Class Cert. Ruling in Liability Suit
----------------------------------------------------------------
Defendant Juul Labs, Inc. filed an appeal from a court ruling
entered in the lawsuit entitled IN RE JUUL LABS, INC., MARKETING
SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION, Case No.
19-md-02913-WHO, in the U.S. District Court for the Northern
District of California.
This case involves the alleged false marketing and sale of JUUL
products -- products not manufactured or sold by Altria, but
instead by JUUL Labs. Inc. (JLI). The crux of the lawsuit is that,
starting in 2015, JLI falsely marketed its products causing every
single JUUL purchaser to pay more than the products were worth.
Altria made a minority investment in JLI in late 2018 and then
provided limited retail services to JLI for 14 months, years after
JLI's alleged scheme began. The district court found that Altria --
not JLI -- should be subject to nationwide RICO classes seeking
upwards of $6 billion.
The Plaintiffs sought certification of four classes of purchasers
of JUUL products on theories that the Defendants' marketing of JUUL
was unlawfully deceptive, JUUL was unlawfully marketed to youth,
and JUUL products are not fit for ordinary use. Each of the four
sets of Defendants -- JLI, the Altria entities, the Founder
Defendants, and the Other Director Defendants (ODDs) -- opposes.
The overarching theme of their opposition is that no class can be
certified given the "heterogeneity" of the class members: Each
named Plaintiff and each proposed class member were exposed to
different advertisements over different periods of time; each had
different impressions of the impact (or materiality) of the
misrepresented or information omitted by JLI; each experienced
different levels of alleged economic injury; and each had their own
"nicotine journey" given their unique use of JUUL products (as well
as other nicotine delivery products like cigarettes or other
e-cigarette products) and unique experiences with possible
addiction.
As reported in the Class Action Reporter on July 7, 2022, Judge
William H. Orrick of the U.S. District Court for the Northern
District of California granted the Plaintiffs' motion for class
certification and denied each of the Daubert motions made by the
parties.
The Defendant seeks a review of this order.
The appellate case is captioned as J. D., et al. v. Juul Labs,
Inc., Case No. 22-80063, in the United States Court of Appeals for
the Ninth Circuit, filed on July 14, 2022.[BN]
Defendants-Petitioners JUUL LABS, INC. is represented by:
David Bernick, Esq.
Peter A. Farrell, Esq.
KIRKLAND & ELLIS, LLP
1301 Pennsylvania Avenue, NW
Washington, DC 20004
Telephone: (202) 389-3201
- and -
Daniel Benjamin Levin, Esq.
Gregory Paul Stone, Esq.
MUNGER, TOLLES & OLSON, LLP
350 S Grand Avenue, 50th Floor
Los Angeles, CA 90071
Telephone: (213) 683-9100
- and -
Renee D. Smith, Esq.
KIRKLAND AND ELLIS, LLP
300 N LaSalle Street
Chicago, IL 60654
Telephone: (312) 862-2000
Plaintiffs-Respondents J. D., through his parent and natural
guardian Nicole Dramis, et al., are represented by:
Eleanor Michelle Drake, Esq.
BERGER MONTAGUE, PC
1229 Tyler Street, NE Suite 205
Minneapolis, MN 55413
- and -
Adam Joshua Gutride, Esq.
Todd Kennedy, Esq.
Seth Adam Safier, Esq.
GUTRIDE SAFIER LLP
835 Douglass Street
San Francisco, CA 94114
- and -
Matthew Thomas McCrary, Esq.
GUTRIDE SAFIER LLP
265 Franklin Street
Boston, MA 02110
- and -
Anthony J. Patek, Esq.
GUTRIDE SAFIER LLP
100 Pine Street
San Francisco, CA 94111
- and -
Dena C. Sharp, Esq.
GIRARD SHARP, LLP
601 California Street, Suite 1400
San Francisco, CA 94108
MEDICREDIT INC: Bid to Dismiss Amended Foley Suit Denied as Moot
----------------------------------------------------------------
In the case, EDITH FOLEY, on behalf of herself and those similarly
situated, Plaintiffs v. MEDICREDIT, INC., Defendant, Civil Action
No. 21-19764 (MAS) (DEA) (D.N.J.), Judge Michael P. Shipp of the
U.S. District Court for the District of New Jersey denies as moot
Medicredit's Motion to Dismiss the Amended Complaint and remands
the case to state court.
The putative class action arises out of Medicredit's alleged
violations of the Fair Debt Collection Practices Act, 15 U.S.C.
Sections 1692, et seq. The Amended Complaint alleges that sometime
before May 4, 2021, Foley incurred a debt to St. Mary Medical
Center. It fails to specify when, but at some point, St. Mary
referred the debt to Medicredit for collection purposes. According
to Foley, to facilitate collection on the debt, Medicredit
communicated Foley's information to a third-party vendor that then
sent a letter to her. The Collection Letter also indicated that
there would be a $20 service charge on all returned checks. It
Letter also advised Foley to "See Reverse For Important
Information."
At bottom, the Amended Complaint alleges FDCPA violations under
Section 1692c(b) and Section 1692(e), alleging that Medicredit
violated the statute by (1) making or causing improper third party
communications, (2) using false, deceptive or misleading
representations or means in connection with the collection of a
debt, (3) threatening to take any action that cannot legally be
taken or that is not intended to be taken, (4) making a false
representation of the character, amount or legal status of a debt,
and (5) using unfair or unconscionable means to collect or attempt
to collect a debt.
On Nov. 5, 2021, the Defendant removed the Complaint from New
Jersey Superior Court. Foley filed the Amended Complaint on Dec. 3,
2021. On Dec. 17, 2021, Medicredit moved to dismiss the Amended
Complaint.
At issue is the threshold question of whether Foley has suffered an
injury in fact. To show injury in fact, she must show that she has
"suffered 'an invasion of a legally protected interest' that is
'concrete and particularized' and 'actual or imminent, not just
conjectural or hypothetical.'" The particularity element of injury
in fact requires Foley to demonstrate that she is "affected in a
personal and individual way."
The Supreme Court recently illustrated these requirements. In
TransUnion LLC v. Ramirez, a putative class of plaintiffs sued
TransUnion, a credit reporting agency, for violations of the Fair
Credit Reporting Act. Before addressing the merits of the
plaintiffs' claims, the Court considered whether the class had
suffered an Article III injury. Concluding that the plaintiffs had
suffered none, it explained that concreteness turns on whether the
alleged injury has a "'close relationship' to a harm
'traditionally' recognized as providing a basis for a lawsuit in
American courts." In short, "an injury in law is not an injury in
fact."
The upshot of Trans Union is that courts must engage in a two-part
inquiry when assessing statutory injuries: First, whether that
injury bears a close relationship to a traditionally recognized
harm, and second, whether a plaintiff has pled more than a mere
injury in law. Assessing the injuries in the present case, the
Court can glean two discreet injuries: (1) Medicredit's sharing of
Foley's private information with third parties and (2) fraudulent
representations in the Collection Letter.
Judge Shipp opines that Foley does not allege that she was actually
harmed in any manner from receiving the Collection Letter. At
bottom, she alleges nothing more than an "informational harm"
because Medicredit attempted to deceive her. She fails to allege
that she was harmed by any action (or inaction) she took as a
result of the Collection Letter. Allegations such as these are
insufficient when they fail to allege an injury in fact, as opposed
to simply an injury in law i.e. that a defendant simply violated a
congressionally implemented statute. Nor can the Court identify any
other injury that would confer standing on Foley. Judge Shipp
therefore finds that Foley does not allege an injury beyond
statutory violations, which the Supreme Court has made clear is not
enough to confer standing. As such, the Foley lacks standing to
bring the action.
To be sure, the Court does not view Transunion as foreclosing all
recourse for harms stemming from FDCPA violations. Instead,
plaintiffs must plead that they suffered some concrete injury as a
result of the informational harm that the FDCPA regulates. As
Courts in this District acknowledge, confusion, when coupled with
action or inaction, may have a sufficiently close relationship with
a "traditional harm" to confer standing. The Court also does not
doubt that "physical, monetary, or a traditional intangible harm
like emotional distress" may be enough to concretely establish an
injury.
As Foley does not have Article III standing to bring the case,
Judge Shipp remands the action to state court. He will enter an
order consistent with his Memorandum Opinion.
A full-text copy of the Court's July 29, 2022 Memorandum Opinion is
available at https://tinyurl.com/2s39adkf from Leagle.com.
MICHAEL STARS INC: Dicks Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Michael Stars, Inc.
The case is styled as Valerie Dicks, on behalf of herself and all
others similarly situated v. Michael Stars, Inc., Case No.
1:22-cv-06540 (S.D.N.Y., Aug. 2, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Michael Stars -- https://www.michaelstars.com/ -- is a Los
Angeles-based apparel and lifestyle retail company that offers
women and men's fashion, including t-shirts, bottoms, dresses,
sweaters, jackets, and accessories.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
MIDLAND CREDIT: Wins Bid for Summary Judgment in Schultz Suit
-------------------------------------------------------------
In the case, ROBERT A. SCHULTZ, JR., et al., Plaintiffs v. MIDLAND
CREDIT MANAGEMENT, INC., Defendant, Civil Action No. 16-4415
(D.N.J.), Judge Madeline Cox Arleo of the U.S. District Court for
the District of New Jersey grants the Defendant's Motion for
Summary Judgment, denies the Plaintiff's Cross-Motion for Summary
Judgment, and denies as moot the Defendant's Motion to Decertify
the Class.
The class action arises from claims that the Defendant violated the
Fair Debt Collection Practices Act, 15 U.S.C. Sections 1692, et
seq., by sending collection letters to the Plaintiffs that were
deceptive and misleading.
MCM is an agency that regularly collects or attempts to collect
past-due consumer debts. On Aug. 24, 2015, MCM mailed collection
letters to Robert and Donna to collect on separate debts of under
$600, where Capital One was the underlying creditor. The Collection
Letters contained the following language: "We are not obligated to
renew this offer. We will report forgiveness of debt as required by
IRS regulations. Reporting is not required every time a debt is
canceled or settled, and might not be required in your case."
Under the Department of Treasury and Internal Revenue Service
regulations, only discharges of indebtedness greater than $600 are
subject to reporting, with certain exceptions. As the Plaintiffs'
debts were less than $600, see Collection Letters, "there could
never be a discharge of indebtedness over $600" in principle and
Defendant "never" would be "required to report" a discharge of
Plaintiff's debts "to the IRS." Accordingly, the Plaintiffs allege
that the IRS Reporting Language is false, deceptive, and misleading
in violation of the FDCPA because it implies there could be
"negative consequences with the IRS" and "deliberately fails to
disclose that such reporting is required under only limited
circumstances."
Robert and Donna have not made any payments on the debt owed to
MCM. At their depositions, they testified that they could not
afford to pay their debts and were struggling to pay their rent at
that time. Donna stated that upon reading the Collection Letters,
she "panicked" based on her belief that the letters threatened IRS
involvement and that she was "in some kind of trouble." Robert
similarly testified that he was worried MCM would involve the IRS
in its collections, that he sent the letter to his lawyer, and that
he felt scared and intimidated by the prospect of IRS involvement.
On July 20, 2016, the Plaintiff filed the putative class action,
and amended the Complaint on Nov. 22, 2016. The Amended Complaint
asserts a single count of a violation of 15 U.S.C. Section 1692e.
On June 5, 2020, the Court granted the Plaintiffs' Motion for Class
Certification, appointing Robert and Donna as class
representatives, and certifying the class as: All natural persons
with addresses within the state of New Jersey, to whom, beginning
July 20, 2015 through and including April 25, 2016, Midland Credit
Management, Inc., sent a Section 1692g initial communication or
LT1Y letter in an attempt to collect a consumer debt with an
original creditor of Capital One and a current balance of less than
$600 at the time the letter was sent, which contained the IRS
Reporting Language.
In 2021, the Supreme Court issued its decision in TransUnion LLC v.
Ramirez, 141 S.Ct. 2190 (2021). In light of TransUnion, the
Defendants now challenge the Plaintiffs' standing to assert their
claims in federal court.
The Defendant argues that the Court lacks subject matter
jurisdiction because the Plaintiffs cannot articulate a "concrete"
injury caused by the Collection Letters under the standard set
forth by the Supreme Court in TransUnion.
Judge Arleo agrees. She opines that the Plaintiffs offered no proof
of reliance and their confusion and fear does not have a "close
relationship" to a harm traditionally recognized as providing a
basis for fraud. As they conceded they did not have the means to
make any payments, it is unclear how they could have relied on any
misleading language in the Collections Letters, as they would not
have paid their debt regardless of whether they read the IRS
Reporting Language.
Moreover, Judge Arleo is unconvinced by the Plaintiffs' assertions
that they need not prove reliance. First, because the Court did
require the Plaintiffs to prove the essential elements of the
analogous common-law analogue, they must show proof of reliance, a
key element of fraud, to survive summary judgment. Second, standing
is a threshold issue that cannot be delayed until after summary
judgment, and TransUnion reaffirmed this principle.
For these reasons, the Plaintiffs have failed to establish that
they have suffered a concrete harm sufficient to establish
standing, and therefore the Court lacks subject matter jurisdiction
over their claims. Accordingly, the Defendant's Motion for Summary
Judgment is granted.
A full-text copy of the Court's July 29, 2022 Opinion is available
at https://tinyurl.com/8t4betx5 from Leagle.com.
MP NEXLEVEL LLC: Miller Files Suit in Cal. Super. Ct.
-----------------------------------------------------
A class action lawsuit has been filed against MP Nexlevel, LLC, et
al. The case is styled as Darin Miller, and on behalf of other
members of the general public similarly situated v. MP Nexlevel, MP
Nexlevel of California, Inc., MP Technologies, LLC, LLC, Does
1-100, Case No. 34-2022-00324598-CU-OE-GDS (Cal. Super. Ct.,
Sacramento Cty., Aug. 2, 2022).
The case type is stated as "Other Employment - Civil Unlimited."
MP Nexlevel -- https://mpnexlevel.com/ -- is a utilities contractor
for cable, fiber optic, telephone and electrical companies.[BN]
The Plaintiff is represented by:
Edwin Aiwazian, Esq.
LAWYERS FOR JUSTICE, PC
410 Arden Avenue, Suite 203
Glendale, CA 91203
Phone: 818-265-1020
Fax: 818-265-1021
NABORS COMPLETION: Court Confirms Arbitration Award in Reasner Suit
-------------------------------------------------------------------
In the case, MIKE REASNER, Petitioner v. NABORS COMPLETION &
PRODUCTION SERVICES CO., n/k/a C&J WELL SERVICES, INC., a Delaware
corporation Respondent, Case No. 2:22-cv-01267-DDP-JPR (C.D. Cal.),
Judge Dean D. Pregerson of the U.S. District Court for the Central
District of California grants Mike Reasner's Petition to Confirm
Final Arbitration Award and for Further Attorneys' Fees and Costs,
and to Enter Judgment Against Respondent Nabors Completion and
Production Services Co.
Reasner performed oil well plug and abandonment work for Nabors in
the Port of Long Beach, as part of a larger project to replace the
Gerald Desmond Bridge. On April 2, 2015, former Nabors employees
who performed similar work on the project, filed a putative class
action in state court against Nabors for violations under the
California Labor Code, on behalf of themselves and similarly
situated employees, including Reasner.
On May 7, 2015, Nabors removed the action to this Court, and
thereafter filed a motion to compel arbitration pursuant to the
parties' arbitration agreement. On Oct. 13, 2015, the Court denied
the motion to compel arbitration. Nabors appealed to the Ninth
Circuit. On Feb. 13, 2018, the Ninth Circuit reversed and remanded
the court's denial of the motion to compel arbitration.
On March 30, 2018, Reasner submitted a Demand for Arbitration to
JAMS, asserting the following wage-and-hour violations: (1) failure
to pay prevailing wages (Cal. Lab. Code Sections 1194, 1771, 1772,
1774 et seq.); (2) waiting time penalties (Cal. Lab. Code Section
203); (3) failure to provide accurate itemized wage statements
(Cal. Lab. Code Section 226(a)); and (4) unfair competition (Cal.
Bus. & Prof. Code Section 17200 et seq.). Thereafter, Honorable
Richard D. Aldrich (Ret.) was appointed as arbitrator.
On Jan. 8, 2021, Reasner filed a motion for summary adjudication
pursuant to JAMS Employment Rule 18. On April 5, 2021, the
Arbitrator granted his motion. On Sept. 20, 2021, the matter
proceeded to a virtual arbitration hearing on the issue of damages.
On Dec. 10, 2021, the Arbitrator issued a Partial Final Award
whereby the Arbitrator made findings on Nabors' liability and
Reasner's damages. Through the Partial Final Award, the Arbitrator
awarded Reasner $31,922.07 in unpaid wages, $27,694.97 in statutory
interest thru Dec. 6, 2021, and continuing at $8.75 per day on the
unpaid wages and interest at the rate per annum until all wages and
interest thereon are paid in full, $21,815.70 in waiting time
penalties under California Labor Code Section 203(a), and $950 in
wage statement violations under California Labor Code Section
226(e).
On Jan. 5, 2022, Reasner filed a Motion to set the amount of
attorney's fees and costs with the Arbitrator. On Jan. 31, 2022,
the Arbitrator issued a Final Arbitration Award, which incorporated
the Arbitrator's findings on damages from the Partial Final Award.
Through the Final Award, the Arbitrator accepted Reasner's
requested lodestar fees, and awarded a 1.5 multiplier to the
lodestar. The Arbitrator awarded Reasner a total of $212,057.25 in
fees and $5,678.75 in costs.
Reasner now moves to confirm the Final Arbitration Award and seeks
$12,534 in post-award attorneys' fees and $402 in costs for filing
of the initial complaint in this confirmation action.
Nabors contends that the Arbitrator exhibited a manifest disregard
of the law through several alleged errors on the issues of
liability, damages, and attorneys' fees. He, however, fails to
identify any instances in the record where the Arbitrator
"recognized the applicable law and then ignored it," Judge
Pregerson finds. The risk that arbitrators may construe the
governing law imperfectly in the course of delivering a decision
that attempts in good faith to interpret the relevant law, or may
make errors with respect to the evidence on which they base their
rulings, is a risk that every party to arbitration assumes, and
such legal and factual errors lie far outside the category of
conduct embraced by Section 10(a)(4). Finding no manifest disregard
of the law exhibited in the Arbitration Award, Judge Pregerson
declines to vacate the Arbitration Award. He therefore grants
Reasoner's Petition to confirm the Arbitration Award.
As the prevailing party, Reasner is entitled to reasonable
attorneys' fees and costs, including fees incurred in connection
with the confirmation action. Thus, the only issue before the court
is whether the requested fees and costs are reasonable.
Reasner seeks $12,534 in attorneys' fees. Judge Pregerson finds,
and Nabors does not dispute, that the rates set forth by Reasner's
counsel are within the range of reasonable rates for attorneys in
the local community, taking into consideration the "experience,
skill, and reputation of the attorney." Specifically, he finds that
the following rates are reasonable: Richard E. Donahoo, Attorney;
$700/hour; R. Chase Donahoo, Attorney: $425/hour; and Kelsey Ung,
Paralegal: $295/hour. With respect to the time spent for work
performed, Reasner's counsel has submitted detailed billing records
of work performed and an accompanying declaration.
Applying the approved rates to the adjusted hours, the result that
the lodestar yields reflects the reasonable number of hours
expended by the counsel in relation to the confirmation action and
request for post-award fees. Thus, Reasner is entitled to $9,636.50
in fees and $402 for the cost of filing the complaint.
For the reasons stated, Judge Pregerson grants Reasner's Petition
to Confirm the Arbitration Award. The Final JAMS Arbitration Award
issued by Arbitrator Hon. Richard D. Aldrich (Ret.) on Jan. 31,
2022, in the Arbitration JAMS Case No. 1220058941, is confirmed.
The Court will enter judgment in favor of Mike Reasner and against
Nabors in the amount of $31,922.07 in unpaid wages, $27,694.97 in
statutory interest thru Dec. 6, 2021, and continuing at $8.75 per
day on the unpaid wages and interest at the rate per annum until
all wages and interest thereon are paid in full, $21,815.70 in
waiting time penalties under California Labor Code Section 203(a),
$950 in wage statement violations under California Labor Code
Section 226(e), $212,057.25 in fees, and $5,678.75 in costs as
awarded by the Arbitrator.
Judge Pregerson further grants Reasner's request for post-award
attorneys' fees in the amount of $9,636.50 and for costs in the
amount of $402.
A full-text copy of the Court's July 29, 2022 Order is available at
https://tinyurl.com/ycybe3vt from Leagle.com.
NAVY FEDERAL: Hart Suit Moved From South Carolina to E.D. Virginia
------------------------------------------------------------------
Judge Richard Mark Gergel of the U.S. District Court for the
District South Carolina, Charleston Division, transferred the
lawsuit titled Maria Hart and Tracee Le Flore, individually and on
behalf of all others similarly situated, Plaintiffs v. Navy Federal
Credit Union, Defendant, Case No. 2:21-cv-0044-RMG (D.S.C.), to the
U.S. District Court for the Eastern District of Virginia,
Alexandria Division.
The matter is before the Court on the parties' Joint Motion to
Transfer Venue under 28 Section 1404(a).
The Plaintiffs initiated the putative class action against the
Defendant in the Court. They pled a breach of contract claim by
alleging the Defendant wrongfully assesses international service
assessment fees on online purchases where account holders are
physically in the United States and the merchants are located
abroad.
The proposed class in this action was all holders of a Navy Federal
checking account who, within the applicable statute of limitations
preceding the filing of this lawsuit incurred international service
assessment fees on a transaction made in the United States. The
Court dismissed the Plaintiff's claims to the extent they purport
to bring claims on behalf of a national class. The Plaintiff's
claims are now on behalf of a putative South Carolina class.
A putative nationwide class action seeking relief on identical
claims against the Defendant is pending in United States District
Court for the Eastern District of Virginia, Morrow v. Navy Fed.
Credit Union, No. 1:21-cv-00722 (E.D. Va. filed June 15, 2021).
That case has proceeded past the motion-to-dismiss stage, and the
parties now agree that transfer to the Eastern District of Virginia
is appropriate because both cases involve substantially similar
claims and the nationwide class in the Virginia action will subsume
the putative South Carolina class here.
Judge Gergel notes that both parties stipulate that this action
should be transferred to the U.S. District Court for the Eastern
District of Virginia, Alexandria Division. Transfer would promote
efficiency because the pending Virginia action involves
substantially similar claims to the case here and the nationwide
class in the Virginia action will subsume the putative South
Carolina class here.
Additionally, the Defendant is based in Vienna, Virginia, which
means the Eastern District of Virginia is more convenient for the
Defendant's witnesses and document custodians. And lastly, the
Plaintiffs initial choice of venue does not weigh against transfer
because they consent to this motion.
Accordingly, transferring this case to Virginia is in the interest
of justice and for the convenience of the parties, Judge Gergel
points out.
A full-text copy of the Court's Order and Opinion dated July 25,
2022, is available at https://tinyurl.com/8v63mkys from
Leagle.com.
NEXTGEN LEADS: Stone Files TCPA Suit in S.D. California
-------------------------------------------------------
A class action lawsuit has been filed against Nextgen Leads LLC.
The case is styled as Emily Stone, individually and on behalf of
all others similarly situated v. Nextgen Leads LLC doing business
as: Firstquote Health, Case No. 3:22-cv-01136-JLS-KSC (S.D. Cal.,
Aug. 3, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Nextgen Leads LLC -- https://nextgenleads.com/ -- generate
high-quality health insurance, and medicare supplement leads.[BN]
The Plaintiff is represented by:
Scott Adam Edelsberg, Esq.
EDELSBERG LAW PA
20900 Northeast 30th Avenue, Suite 417
Aventura, FL 33180
Phone: (305) 975-3320
Email: scott@edelsberglaw.com
OCEAN CITIES: Order Compelling Arbitration in Alammari Suit Upheld
------------------------------------------------------------------
In the case, OCEAN CITIES PIZZA, INC., et al., Petitioners v. THE
SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; ISMAIL ALAMMARI,
Real Party in Interest, Case No. A160891 (Cal. App.), the U.S.
Court of Appeals of California for the First District, Division
Four, affirms the order granting the Petitioners' motion to compel
Ismail Alammari to submit his individual claims to arbitration but
denying their request to strike his class allegations.
Mr. Alammari filed a wage-and-hour complaint against Petitioners
Ocean Cities Pizza, Inc., Home County Pizza, Inc., Hishmeh
Enterprises, Inc., and Central Cities Pizza, Inc., asserting causes
of action both on an individual and on a class basis. In 2018,
Alammari became an employee of Ocean Cities Pizza and signed an
arbitration agreement that the parties agree is enforceable and
governed by the Federal Arbitration Act. It states that any dispute
the company and employee cannot resolve informally "shall be
resolved and decided through binding arbitration as set forth in
this agreement." The agreement adds that, with certain exceptions
not relevant here, the parties intend for it to apply to "any
dispute that arises out of the employee's employment with the
company" and to encompass "all claims that are arbitrable under
applicable law."
Further, the agreement states that it applies to "any claim brought
on an individual, class action, putative class action, collective
action, multiple-party, representative plaintiff and/or private
attorney general basis by employee or on employee's behalf, that
employee may have against the company," including, but not limited
to, "any claims related to wages ([with one irrelevant exception]),
reimbursements, penalties, alleged state Labor Code violations,
alleged Wage Order or 'wage and hour' violations, discrimination,
retaliation and harassment, whether based on state or federal law,
and any other employment-related claim."
Mr. Alammari worked for Ocean Cities Pizza for approximately a
year. In 2019, he filed a class-action complaint against all four
petitioners alleging wage-and-hour violations. His first amended
complaint asserts 10 causes of action. The first nine seek damages
and restitution on behalf of Alammari and a proposed class, for
wage-and-hour claims arising out of his and the class's employment
by petitioners.
The Petitioners jointly moved to compel individual arbitration of
all but the PAGA cause of action, to strike the "class claims," and
to stay proceedings on the PAGA cause of action pending the
arbitration. The court issued an order finding the arbitration
agreement valid and governed by the FAA -- as was undisputed -- and
holding that the agreement compels arbitration of all but the PAGA
cause of action, on which the court stayed litigation pending the
arbitration.
The court then turned to the one disputed issue -- whether to order
arbitration of the causes of action only on an individual basis or
also on a class basis. It addressed Lamps Plus, Inc. v. Varela
(2019) ___ U.S. ___ [139 S.Ct. 1407], which held that the FAA
preempts any rule of state contract law that would require a court
to construe an ambiguous arbitration agreement so as to require
class arbitration based on policy considerations rather than the
parties' expressed intent. The court distinguished Lamps Plus by
noting that the arbitration agreement in that case did not mention
class proceedings, whereas the agreement here specifies that it
applies to "'any claim brought on an individual, class action,
putative class action, collective action, multiple-party,
representative plaintiff and/or private attorney general basis by
employee or on employee's behalf.'"
Noting further that the agreement did not include a class-action
waiver or refer in any other way to class actions, the court found
that the agreement unambiguously requires class arbitration of
class members' employment-related claims. It found support for its
ruling in Garner v. Inter-State Oil Co. (2020) 52 Cal.App.5th 619,
a post-Lamps Plus opinion in which the Third Appellate District
held that an arbitration agreement with somewhat similar language
expressly required arbitration of class claims. The court thus
ordered both individual and class arbitration of Alammari's
claims.
The Petitioners timely filed a notice of appeal. They purport to
appeal, pursuant to Code of Civil Procedure section 1294,
subdivision (a) (section 1294(a)). Section 1294(a) authorizes
appeals only from orders dismissing or denying petitions to compel
arbitration. The challenged order, however, granted the petition in
part, although denying the request to strike class allegations.
As held in Reyes v. Macy's, Inc. (2011) 202 Cal.App.4th 1119
(Reyes), the order is not appealable. The Petitioners contend that
the FAA preempts the rule of Reyes, and they request in the
alternative that the Court of Appeals treats the purported appeal
as a petition for writ relief.
Although the parties agree that an arbitration should occur,
disagreeing only about its scope, arbitrating the causes of action
on a classwide basis will consume considerably more time and
expense than arbitrating them on only an individual basis. Indeed,
the potential waste of resources may be more extensive here because
classwide arbitration will require the parties to devote large
quantities of time and resources to litigating issues relevant
solely to the class format, effort that would be useless if it were
ultimately determined that the class claims should have been
dismissed. Therefore, the Court of Appeals treats the Petitioners'
appeal as a petition for a writ of mandate to direct the trial
court to strike the class allegations.
Turning to the merits, the parties dispute no facts, so the Court
of Appeals reviews de novo the trial court's interpretation of
their agreement. It concludes that the Plaintiff's arbitration
agreement unambiguously authorizes the arbitration of his claims on
a classwide basis, as the trial court held. It opines that neither
Lamps Plus nor the other federal opinions the Petitioners cite
addressed agreements explicitly referring to class claims, as do
the agreements in the present case and in Garner. Moreover, the
arbitration agreement in the present case refers not only to claims
brought on a "class action basis" but to "to any claim brought by
employee or on employee's behalf, that employee may have against
the company." Resolving claims brought by one employee on another
"employee's behalf" can occur only in classwide proceedings.
In sum, because classwide arbitration would be unduly costly if
ordered erroneously, the Court of Appeals treats the appeal as a
writ petition and, thus, need not resolve the preemption issue. On
the merits, it holds that the trial court correctly held that the
agreement unambiguously authorizes class arbitration, so it denies
the petition, effectively affirming the trial court's order.
A full-text copy of the Court's July 29, 2022 Opinion is available
at https://tinyurl.com/ycyx4zy6 from Leagle.com.
OLAM SPICES: Beltran Parties to Inform Court of Settlement Status
-----------------------------------------------------------------
In the case, THOMAS BELTRAN, et al., Plaintiffs v. OLAM SPICES AND
VEGETABLES, INC., Defendant, Case No. 1:18-cv-01676-JLT-SAB (E.D.
Ca.), Magistrate Judge Stanley A. Boone of the U.S. District Court
for the Eastern District of California orders the parties to file a
status report informing the Court of the status of the motion for
final approval.
On Sept. 28, 2021, the Court issued an order setting a final
approval hearing on the class action settlement for March 30, 2022.
On March 1, 2022, the parties submitted a stipulated request to
continue the hearing on the Plaintiffs' motion for final approval.
They requested the continuance so that the Defendant can provide
the Settlement Administration additional information from its
payroll systems in a usable format so that all Class Members may
receive notice of the action. On March 2, 2022, the Court entered
the parties' stipulation and continued the hearing until Aug. 25,
2022.
On March 1, 2022, the Local Rule 230(b) was amended to require 35
days' notice for the filing of civil motions, instead of the
previous 28-day period. The parties have failed to file the motion
for final approval within the proper notice period under either
version of the Local Rule.
Accordingly, Judge Boone orders the parties to file a status report
concerning the filing of the motion for final approval, and the
failure to do so may result in the issuance of sanctions.
A full-text copy of the Court's July 29, 2022 Order is available at
https://tinyurl.com/yckrjt28 from Leagle.com.
ONETOUCHPOINT INC: Dusterhoft Files Suit in E.D. Wisconsin
----------------------------------------------------------
A class action lawsuit has been filed against OneTouchPoint, Inc.
The case is styled as Richard Dusterhoft, on behalf of himself and
all others similarly situated v. OneTouchPoint, Inc., Case No.
2:22-cv-00882 (E.D. Wis., Aug. 3, 2022).
The nature of suit is stated as Other P.I. for Personal Injury.
OneTouchPoint -- https://1touchpoint.com/ -- provides flawless
print, marketing execution and supply chain management.[BN]
The Plaintiff is represented by:
Gary M. Klinger, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
227 West Monroe Street, Suite 2100
Chicago, IL 60606
Phone: (847) 208-4585
Email: gklinger@milberg.com
PAXTON GATE: Dicks Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Paxton Gate, Inc. The
case is styled as Valerie Dicks, on behalf of herself and all
others similarly situated v. Paxton Gate, Inc., Case No.
1:22-cv-06544 (S.D.N.Y., Aug. 2, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Paxton Gate -- https://paxtongate.com/ -- has been offering
ethically sourced taxidermy, butterflies, skulls, bones, fossils,
crystals and other curious treasures for over 25 years.[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
PAYNE CAPITAL: Jackson Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Payne Capital
Management, LLC. The case is styled as Sylinia Jackson, on behalf
of herself and all other persons similarly situated v. Payne
Capital Management, LLC, Case No. 1:22-cv-06582 (S.D.N.Y., Aug. 2,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Payne Capital Management -- https://paynecm.com/ -- is a financial
planner located in New York City and Philadelphia.[BN]
The Plaintiff is represented by:
Dana Lauren Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (917) 796-7437
Fax: (212) 982-6284
Email: danalgottlieb@aol.com
QUALCOMM INC: Faces Consumer Suits in Canadian, UK, Israeli Courts
------------------------------------------------------------------
QUALCOMM Incorporated disclosed in its Form 10-Q Report for the
quarterly period ended June 26, 2022, filed with the Securities and
Exchange Commission on July 27, 2022, that since November 2017,
several other consumer class action complaints have been filed
against the company in Canada (in the Supreme Court of British
Columbia and the Quebec Superior Court), Israel (in the Haifa
District Court) and the United Kingdom (in the Competition Appeal
Tribunal), each on behalf of a putative class of purchasers of
cellular phones and other cellular devices, alleging violations of
certain of those countries' competition and consumer protection
laws.
The claims in these complaints are similar to those in the U.S.
consumer class action complaints. The complaints seek damages.
QUALCOMM Incorporated Radio & TV Broadcasting & Communications
Equipment based in California.
QUALCOMM INC: Faces Securities Suits in California Court
--------------------------------------------------------
QUALCOMM Incorporated disclosed in its Form 10-Q Report for the
quarterly period ended June 26, 2022, filed with the Securities and
Exchange Commission on July 27, 2022, that it is facing securities
class action complaints filed by purported stockholders in the
United States District Court for the Southern District of
California in January 23, 2017 and January 26, 2017, against the
company and certain of its then current and former officers and
directors.
The complaints alleged, among other things, that the company
violated Sections 10(b) and 20(a) of the Securities Exchange Act of
1934, as amended, and Rule 10b-5 thereunder, by making false and
misleading statements and omissions of material fact in connection
with certain allegations that the company is or was engaged in
anticompetitive conduct. The complaints sought unspecified damages,
interest, fees and costs.
On May 4, 2017, the court consolidated the two actions. On July 3,
2017, the plaintiffs filed a consolidated amended complaint
asserting the same basic theories of liability and requesting the
same basic relief.
On September 1, 2017, the company filed a motion to dismiss the
consolidated amended complaint, and on March 18, 2019, the court
denied the motion. On January 15, 2020, the company filed a motion
for judgment on the pleadings, which the court denied on February
3, 2022. On May 23, 2022, the plaintiffs filed a motion for class
certification. The court has not yet ruled on the motion, and no
trial date has been set.
QUALCOMM Incorporated Radio & TV Broadcasting & Communications
Equipment based in California.
RYDER SYSTEM: Securities Suit in Florida Court Ongoing
------------------------------------------------------
Ryder System, Inc. disclosed in its Form 10-Q Report for the
quarterly period ended June 30, 2022, filed with the Securities and
Exchange Commission on July 27, 2022, on May 20, 2020, a putative
class action on behalf of purchasers of the company's securities
who purchased or otherwise acquired their securities between July
23, 2015 and February 13, 2020, inclusive (Class Period), was
commenced against Ryder and certain of its current and former
officers in the U.S. District Court for the Southern District of
Florida, captioned "Key West Policy & Fire Pension Fund v. Ryder
System, Inc., et al."
The complaint alleges, among other things, that the defendants
misrepresented Ryder's depreciation policy and residual value
estimates for its vehicles during the Class Period in violation of
Section 10(b) and 20(a) of the Securities Exchange Act of 1934 and
Rule 10b-5 promulgated thereunder, and seeks to recover, among
other things, unspecified compensatory damages and attorneys' fees
and costs.
On August 3, 2020, the State of Alaska, Alaska Permanent Fund, the
City of Fort Lauderdale General Employees' Retirement System, and
the City of Plantation Police Officers Pension Fund were appointed
lead plaintiffs.
On October 5, 2020, the lead plaintiffs filed an amended complaint.
On December 4, 2020, Ryder and the other named defendants in the
case filed a Motion to Dismiss the amended complaint. On May 12,
2022, the court denied the defendants' motion to dismiss.
The court entered a case management schedule on June 27, 2022,
which, among other things, provides that discovery shall be
completed by October 2023 and the commencement of trial in June
2024.
Ryder System, Inc. provides auto rental & leasing services based in
Florida.
SIEMENS CORP: National Sentry Suit Transferred to N.D. Georgia
--------------------------------------------------------------
The case styled as National Sentry Security Systems, Inc.,
ElectriCalifornia, Rick Keyser, Tyler Barrette, Individually and on
behalf of all others similarly situated v. Siemens Corp. doing
business as: Siemens Usa, Siemens Industry, Inc., Case No.
1:21-cv-01072 was transferred from the U.S. District Court for the
District of Columbia, to the U.S. District Court for the Northern
District of Georgia on Aug. 2, 2022.
The District Court Clerk assigned Case No. 1:22-cv-03043-MHC to the
proceeding.
The nature of suit is stated as Other Fraud.
Siemens -- http://www.siemens.com/-- is a technology company
focused on industry, infrastructure, transport, and
healthcare.[BN]
The Plaintiff is represented by:
Brian C. Gudmundson, Esq.
Jason P. Johnston, Esq.
Michael J. Laird, Esq.
Rachel K. Tack, Esq.
ZIMMERMAN REED, P.L.L.P.-MN
1100 IDS Center
80 South 8th Street
Minneapolis, MN 55402
Phone: (612) 341-0400
Email: brian.gudmundson@zimmreed.com
jason.johnston@zimmreed.com
michael.laird@zimmreed.com
rachel.tack@zimmreed.com
- and -
Daniel C. Hedlund, Esq.
GUSTAFSON GLUEK PLLC-MN
120 South Sixth Street, Suite 2600
Minneapolis, MN 55402
Phone: (612) 333-8844
Fax: (612) 339-6622
Email: dhedlund@gustafsongluek.com
- and -
David A. Goodwin, Esq.
GUSTAFSON GLUEK PLLC
650 Northstar East
608 Second Avenue South
Minneapolis, MN 55402
Phone: (612) 333-8844
Fax: (612) 339-6622
Email: dgoodwin@gustafsongluek.com
- and -
Brian E. Johnson, Esq.
Victoria S. Nugent, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC-DC
1100 New York Avenue, N.W.
Washington, DC 20005-3964
Phone: (417) 343-5956
Fax: (202) 408-4699
Email: bejohnson@cohenmilstein.com
The Defendant is represented by:
Toni Michelle Jackson, Esq.
Cheryl Falvey, Esq.
Rachel Paige Raphael, Esq.
Ruben Reyna, Esq.
Rukiya F. Mohamed, Esq.
CROWELL & MORING
1001 Pennsylvania Avenue, N.W.
Washington, DC 20004-2595
Phone: (202) 624-2500
SIX AND AIT: Bunting Files ADA Suit in E.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Six And Ait Inc. The
case is styled as Rasheta Bunting, individually and as the
representative of a class of similarly situated persons v. Six And
Ait Inc., Case No. 1:22-cv-04554 (E.D.N.Y., Aug. 3, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Six And Ait Inc. -- https://www.sixandait.com/ -- is a
professionally licensed and trained eyebrow microblading studio
located in NYC.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
TAHOE RESOURCES: Stay of Securities Class Suit Temporarily Lifted
-----------------------------------------------------------------
The U.S. District Court for the District of Nevada temporarily
lifts the stay of the lawsuit entitled In re TAHOE RESOURCES, INC.
SECURITIES LITIGATION, Case No. 2:17-cv-01868-RFB-NJK (D. Nev.),
for the sole purpose of lead plaintiff substitution.
District Judge Richard F. Boulware, II, ordered that the temporary
stay of this action is temporarily lifted for the sole purpose of
deciding the Motion of Tiffany Huynh for Substitution as Lead
Plaintiff.
Tiffany Huynh is substituted for Kevin Nguyen as Lead Plaintiff in
the putative securities class action.
A full-text copy of the Court's Order dated July 25, 2022, is
available at https://tinyurl.com/r5w96upt from Leagle.com.
Martin A. Muckleroy -- martin@muckleroylunt.com -- MUCKLEROY LUNT,
LLC, in Las Vegas, Nevada; James M. Wilson, Jr. --
jwilson@faruqilaw.com -- Robert W. Killorin --
rkillorin@faruqilaw.com -- Katherine M. Lenahan --
klenahan@faruqilaw.com -- FARUQI & FARUQI, LLP, in New York City,
Counsel for the proposed Class.
TEVA PHARMA: Court Narrows Claims in Antitrust Suit
---------------------------------------------------
Teva Pharmaceutical Industries Limited disclosed in its Form 10-Q
Report for the quarterly period ended June 30, 2022, filed with the
Securities and Exchange Commission on July 17, 2022, that a
putative class action suit in the United States District Court for
the Eastern District of Pennsylvania alleging violations of the
antitrust laws in connection with their settlement of patent
litigation involving colchicine tablets (generic "Colcrys"),
entered into in January 2016 was partly dismissed.
Plaintiff claims that the settlement was part of a horizontal
conspiracy among Takeda and the generic manufacturers to unlawfully
restrict output of colchicine by delaying generic entry.
Defendants moved to dismiss the complaint for failure to state a
claim. On December 28, 2021, the Court granted the defendants'
motion to dismiss, finding that plaintiff's allegations were
implausible, but granted plaintiff leave to amend, and on January
18, 2022, plaintiff filed its amended complaint, making
substantively the same antitrust allegations as before, but with
certain new allegations regarding the nature of the alleged
conspiracy.
On March 30, 2022, the Court granted in part and denied in part
defendants' motion to dismiss, dismissing the newly pled bilateral
conspiracy claims but allowing the revised overarching conspiracy
claim to proceed against all defendants.
On April 8, 2022, Teva and Watson, along with their codefendant
Amneal, moved the court to reconsider its partial motion-to-dismiss
denial or, in the alternative, to certify that denial for immediate
appellate review. However, that motion was denied on April 25,
2022.
Teva Pharmaceutical Industries Limited is a pharmaceutical company
based in Israel.
TEVA PHARMACEUTICAL: Court OKs Settlement Deal in Securities Suit
-----------------------------------------------------------------
Teva Pharmaceutical Industries Limited disclosed in its Form 10-Q
Report for the quarterly period ended June 30, 2022, filed with the
Securities and Exchange Commission on July 17, 2022, that a
settlement of a class action suit was approved by the court.
On November 6, 2016 and December 27, 2016, two putative securities
class actions were filed in the U.S. District Court for the Central
District of California against Teva and certain of its current and
former officers and directors. Those lawsuits were consolidated and
transferred to the U.S. District Court for the District of
Connecticut.
On December 13, 2019, the lead plaintiff in that action filed an
amended complaint, purportedly on behalf of purchasers of Teva's
securities between February 6, 2014 and May 10, 2019. The amended
complaint asserts that Teva and certain of its current and former
officers and directors violated federal securities and common laws
in connection with Teva's alleged failure to disclose pricing
strategies for various drugs in its generic drug portfolio and by
making allegedly false or misleading statements in certain offering
materials. The amended complaint seeks unspecified damages, legal
fees, interest, and costs.
In July 2017, August 2017, and June 2019, other putative securities
class actions were filed in other federal courts based on similar
allegations, and those cases have been transferred to the U.S.
District Court for the District of Connecticut. Between August 2017
and September 2021, twenty-two complaints were filed against Teva
and certain of its current and former officers and directors
seeking unspecified compensatory damages, legal fees, costs and
expenses.
The similar claims in these complaints have been brought on behalf
of plaintiffs, in various forums across the country, who have
indicated that they intend to "opt-out" of the Ontario Teachers
Securities Litigation.
On March 10, 2020, the Court consolidated the Ontario Teachers
Securities Litigation with all of the above-referenced putative
class actions for all purposes and the "opt-out" cases for pretrial
purposes. Pursuant to that consolidation order, plaintiffs in
several of the "opt-out" cases filed amended complaints on May 28,
2020.
On January 22, 2021, the Court dismissed the "opt-out" plaintiffs'
claims arising from statements made prior to the five year statute
of repose, but denied Teva's motion to dismiss their claims under
Israeli laws. Those "opt-out" plaintiffs moved for reconsideration,
which was denied on March 30, 2021.
On May 24, 2021, Teva moved to dismiss a majority of the "opt-out"
complaints on various other grounds. Those motions are still
pending. The Ontario Teachers Securities Litigation plaintiffs'
Motion for Class Certification and Appointment of Class
Representatives and Class Counsel was granted on March 9, 2021, to
which Teva's appeal was denied.
On January 18, 2022, Teva entered into a settlement in the Ontario
Teachers Securities Litigation for $420 million, which was
preliminarily approved by the court on January 27, 2022. Pursuant
to an agreement between the company and its insurance carriers, the
insurance carriers are expected, subject to certain funding
conditions, to provide the vast majority of the total settlement
amount, with a small portion contributed by Teva.
Additionally, as part of the settlement, Teva admitted no liability
and denied all allegations of wrongdoing. A number of "opt-out"
complaints still remain outstanding, and motions to approve
securities class actions were also filed in the Tel Aviv District
Court in Israel.
Teva Pharmaceutical Industries Limited is a pharmaceutical company
based in Israel.
TEVA PHARMACEUTICAL: Faces Securities Suit Over Copaxone
--------------------------------------------------------
Teva Pharmaceutical Industries Limited disclosed in its Form 10-Q
Report for the quarterly period ended June 30, 2022, filed with the
Securities and Exchange Commission on July 17, 2022, that it is
facing a class action filed in September 23, 2020, in the U.S.
District Court for the Eastern District of Pennsylvania against
Teva and certain of its former officers alleging, among other
things, violations of Section 10(b) of the Securities and Exchange
Act of 1934, as amended and SEC Rule 10b-5.
The complaint, purportedly filed on behalf of persons who purchased
or otherwise acquired Teva securities between October 29, 2015 and
August 18, 2020, alleges that Teva and certain of its former
officers violated federal securities laws by allegedly making false
and misleading statements regarding the commercial performance of
"COPAXONE," namely, by failing to disclose that Teva had caused the
submission of false claims to Medicare through Teva's donations to
bona fide independent charities that provide financial assistance
to patients, which allegedly impacted COPAXONE's commercial success
and the sustainability of its revenues and resulted in the above
referenced August 2020 False Claims Act complaint filed by the DOJ.
On March 26, 2021, the Court appointed lead plaintiff and lead
counsel. On May 25, 2021, lead plaintiff filed an amended class
action complaint, which named four additional former and current
officers as defendants. On August 10, 2021, lead plaintiff moved to
strike certain allegations from its amended complaint and to file a
corrected amended complaint, which the court granted that same
day.
On March 25, 2022, the court granted in part and denied in part
Teva's and the individual defendants' motion to dismiss the
corrected amended complaint, (i) holding that the plaintiffs'
complaint failed to plead that certain public statements regarding
Teva's compliance with the law were misleading, (ii) holding that
two alleged partial corrective disclosures did not establish loss
causation and cannot serve as the basis for plaintiff's claimed
loss, (iii) dismissing all claims against one of the individual
defendants, and (iv) otherwise denying the motion to dismiss.
Teva Pharmaceutical Industries Limited is a pharmaceutical company
based in Israel.
TRINITY INDUSTRIES: Settlement in Class Suit Initially OK'd
-----------------------------------------------------------
Trinity Industries Inc. disclosed in its Form 10-Q Report for the
quarterly period ended June 30, 2022, filed with the Securities and
Exchange Commission on July 27, 2022, that the court granted
preliminary approval of a settlement of a November 5, 2015 lawsuit
filed against the company captioned "Jackson County, Missouri,
individually and on behalf of a class of others similarly situated
vs. Trinity Industries, Inc. and Trinity Highway Products, LLC,"
Case No. 1516-CV23684, Circuit Court of Jackson County, Missouri.
The case was being brought by plaintiff for and on behalf of itself
and all Missouri counties with a population of 10,000 or more
persons, including the City of St. Louis, and the State of
Missouri's transportation authority.
The plaintiff alleged that the Company and Trinity Highway Products
(THP) did not disclose design changes to the "ET Plus" and these
allegedly undisclosed design changes made the ET Plus allegedly
defective, unsafe, and unreasonably dangerous. The plaintiff
alleged product liability negligence, product liability strict
liability, and negligently supplying dangerous instrumentality for
supplier's business purposes.
The plaintiff sought compensatory damages, interest, attorneys'
fees and costs, and in the alternative plaintiff sought a
declaratory judgment that the ET Plus is defective, the company's
conduct was unlawful, and class-wide costs and expenses associated
with removing and replacing the ET Plus throughout Missouri.
On December 6, 2017, the court granted plaintiff's Motion for Class
Certification, certifying a class of Missouri counties with
populations of 10,000 or more persons, including the City of St.
Louis and the State of Missouri's transportation authority that
have or had ET Plus guardrail end terminals with 4-inch wide guide
channels installed on roadways they own or maintain.
The parties have reached an agreement to settle all claims in this
case without any admission of liability or fault. Defendants have
denied and continue to deny specifically each and all of the claims
and contentions alleged in this case.
The company's settlement with the class avoids the uncertainty and
expense of continued litigation. On May 30, 2022, the trial court
granted preliminary approval of the settlement. A final approval
hearing is scheduled for August 30, 2022.
Trinity Industries, Inc. and its consolidated subsidiaries own
businesses that are providers of rail car products and services
based in Texas.
TRUSTEES OF COLUMBIA UNIVERSITY: Suit Filed in S.D.N.Y.
-------------------------------------------------------
A class action lawsuit has been filed against The Board of Trustees
of Columbia University in the City of New York. The case is styled
as Student A, individually and on behalf of others similarly
situated v. The Board of Trustees of Columbia University in the
City of New York, Case No. 1:22-cv-06567 (S.D.N.Y., Aug. 2, 2022).
The nature of suit is stated as Other Contract for Contract
Default.
The Trustees of Columbia University in the City of New York
operates as an educational institution.[BN]
The Plaintiff is represented by:
Thomas James McKenna, Esq.
GAINEY & MCKENNA
501 Fifth Avenue, 19th Floor
New York, NY 10017
Phone: (212) 983-1300
Email: tjmlaw2001@yahoo.com
TRUSTEES OF DARTMOUTH: Delacruz Files ADA Suit in S.D. New York
---------------------------------------------------------------
A class action lawsuit has been filed against Trustees Of Dartmouth
College. The case is styled as Emanuel Delacruz, on behalf of
himself and all other persons similarly situated v. Trustees Of
Dartmouth College, Case No. 1:22-cv-06573 (S.D.N.Y., Aug. 2,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Board of Trustees of Dartmouth College --
https://www.dartmouth.edu/trustees/ -- is the governing body of
Dartmouth College, an Ivy League university located in Hanover, New
Hampshire, United States.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: michael@gottlieb.legal
VINTNER'S DAUGHTER: Crosson Files ADA Suit in E.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Vintner's Daughter,
LLC. The case is styled as Aretha Crosson, individually and as the
representative of a class of similarly situated persons v.
Vintner's Daughter, LLC, Case No. 1:22-cv-04553 (E.D.N.Y., Aug. 3,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Vintner's Daughter -- https://vintnersdaughter.com/ -- is natural,
award-winning skincare.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
WHITE CONTRACTING: Grid Logistics Wins Bids for Summary Judgment
----------------------------------------------------------------
In the lawsuit styled GRID LOGISTICS LLC, Plaintiff v. WHITE
CONTRACTING & RENOVATION INC, PIZZAROTTI, LLC, FIDELITY AND DEPOSIT
COMPANY OF MARYLAND, ZURICH AMERICAN INSURANCE COMPANY, USC-KINGS,
LLC, JOHN DOE 1 THROUGH JOHN DOE 5, Defendants, Index No.
651007/2019 (N.Y. Sup.), the Supreme Court of the State of New
York, New York County grants the motions for summary judgment
against Pizzarotti, Zurich, and Fidelity filed by Grid, Men of
Steel Rebar Fabricators, LLC, and USC-Kings, LLC.
The owner of the property at 39 West 23rd Street, former Defendant
39 West 23rd Street, LLC, hired Defendant Pizzarotti, LLC, to be
the construction manager of a project there. Pizzarotti appears to
have taken over The Project from a previous contractor, non-party
Ryder Construction Inc.
On Nov. 17, 2017, Pizzarotti entered into a subcontract with
Defendant/Third-Party Plaintiff White Contracting & Renovation,
Inc., to perform concrete and site work for the Project. The
subcontract replaced the contract with Ryder. White's former Owner
and CEO, non-party David McCarthy, alleges there were many
additions and change orders to the original contract.
On Feb. 28, 2017, Plaintiff Grid Logistics, LLC, entered into a
subcontract with White for soil management services in furtherance
of White's subcontract. This agreement was amended on Dec. 19,
2017, to add additional services and extend its term.
On June 14, 2018, Plaintiff Men of Steel Rebar Fabricators, LLC,
entered into a subcontract with White to furnish and supply rebar
materials for the Project.
Prior to June 20, 2018, Plaintiff USC-Kings, LLC, entered into a
subcontract with White to provide concrete and services in
furtherance of the Project.
Consolidated Plaintiffs Grid, Men of Steel, and USC-Kings, contend
that they completed their work but White ceased paying them
starting in September 2018.
On Sept. 26, 2018, White submitted "Pay Application No. 16" to
Pizzarotti detailing the amounts paid thus far and still owing. The
same application also notified Pizzarotti that all work up to that
point had been completed.
On Oct. 17, 2018, Grid filed a mechanic's lien against The Property
in the amount of $138,941. On Oct. 18, 2018, USC-Kings filed a
mechanic's lien against The Property in the amount of $271,764.58.
On Dec. 24, 2018, Men of Steel filed a mechanic's lien against The
Property in the amount of $215,252.41.
White, in turn, contends that it was unable to pay the Consolidated
Plaintiffs due to Pizzarotti's refusal to pay it. White affirms
that it filed three separate mechanic's liens against The Property
for the outstanding balance owed to it: (1) on Oct. 9, 2018, for
$755,751.02; (2) on Oct. 25, 2018, for $580,000; and (3) on June
14, 2019, for $707,724.
On Oct. 30, 2018, Defendants Zurich American Insurance Company,
Fidelity and Deposit Company of Maryland, and Pizzarotti filed
numerous surety bonds worth 110% of the various mechanic's liens
filed by the Consolidated Plaintiffs up to that time.
In a letter dated June 24, 2019, Pizzarotti notified White that
Pizzaroti was purporting to terminate their contract for cause,
alleging poor performance, material breaches of their contract, and
failure to provide payments to sub-tier contractors.
Procedural History
The instant case was consolidated from four separate mechanic's
lien foreclosure actions.
On Feb. 18, 2019, Grid commenced an action against White,
Pizzarotti, Zurich, and Fidelity, under Index No. 651007/2019. In a
Decision and Order dated June 4, 2019, the Court so-ordered a
stipulation amending the complaint and removing Owner as a
Defendant. On June 10, 2019, Grid filed an Amended Complaint.
On May 6, 2019, Men of Steel commenced an action against
Pizzarotti, White, Zurich, and Fidelity; it included a cause of
action to foreclose its mechanic's lien and a request for class
action status for the individual "materialmen" on the project,
under Index No. 652655/2019. In a Decision and Order dated Aug. 14,
2019, Judge Francis Kahn granted Men of Steel's motion for default
judgment against White as to liability and ordered an inquest to
assess damages.
On Oct. 30, 2019, White commenced an action against Pizzarotti and
Zurich under the Index No. 160584/2019. In a Decision and Order
dated Sept. 30, 2019, pursuant to Article 3-A of the New York Lien
Law, Men of Steel's class action was "maintained" against
Pizzarotti, Alfredo Vinci, Gabrielle Corazza, Marco Martegiani, and
John Does #1-10 (collectively, the "Pizzarotti Defendants"). The
court approved Men of Steel to represent all subcontractors and
"materialmen" who worked on The Project.
In a Decision and Order dated Dec. 20, 2019, the Court consolidated
the separate Grid, White, and Men of Steel actions under Index No.
651007/2019 and added USC-Kings as a Defendant. In a Decision and
Order dated May 18, 2020, the Court granted a default judgment in
favor of Grid against White as to liability and directed Grid to
schedule an inquest to assess damages.
On June 24, 2020, USC-Kings, apparently unaware of the Decision and
Order from Dec. 2019, commenced an action under Index No.
154628/2020 against Pizzarotti, Fidelity, Zurich, and White
("USC-Kings Action"). In a Decision and Order dated Jan. 27, 2021,
the Court consolidated the USC-Kings Action into the existing
Consolidated Action.
Grid, Men of Steel and USC-Kings now individually move for summary
judgment against Pizzarotti, Zurich, and Fidelity.
Pizzarotti now cross-moves against Men of Steel for summary
judgment dismissing all claims asserted by White and Consolidated
Plaintiffs, and damages against White totaling $2,487,682.41, which
includes the cost of corrective works, delays, and total lien
costs.
The Plaintiffs' Summary Judgment Motions
The Consolidated Plaintiffs now move for summary judgment seeking
foreclosure of their mechanic's liens against the bonds filed by
Pizzarotti, Zurich, and Fidelity. Additionally, Men of Steel moves,
and is joined by the other Consolidated Plaintiffs, for damages
based on Pizzarotti's alleged breach of a Lien Law Trust, which
violated Article 3-A.
As a preliminary matter, the Court notes that in opposing the
instant motions for summary judgment, Defendant Pizzarotti, failed
to annex a concise, numbered statement responding to material facts
asserted by the moving parties, as required by 22 NYCRR 202.8g(b).
While this was not dispositive in this decision, it certainly did
not help the Defendant's cause.
However, Judge Arthur Engoron says, as there appears to be no
prejudice to any party from Pizzarotti's lapse, the Court, in its
discretion and in the interest of justice, waives compliance and
trusts counsel will not repeat this oversight.
As to the merits, the Consolidated Plaintiffs have shown they are
entitled to the value of their mechanic's liens for the work
completed on the Project, having established the amounts
outstanding ($215,252.41 for Men of Steel, $138.941.00 for Grid,
and $271,764.58 for USC-Kings) by submitting, inter alia, their
original contracts with White (Grid and Men of Steel), invoices
issued to White (Grid, Men of Steel, and USC-Kings), and statements
of account (Grid, Men of Steel, and USC-Kings).
Judge Engoron also finds the Consolidated Plaintiffs correctly
filed their liens within eight months of completing their work,
served notice on Owner, general contractor, and subcontractor
within thirty days of filing. Additionally, the default judgment
against White has already demonstrated the validity of Grid and Men
of Steel's liens.
The Consolidated Plaintiffs have also established that there is a
"lien fund" to which their mechanic's liens may attach, namely the
lien bonds for 110% of the amounts owed. Pizzarotti, by its own
admission, withheld payments from White totaling $495,751.02,
citing deficiencies in the work White performed. Pizzarotti,
however, did not formally move to terminate its contract with White
until June 24, 2019, nearly a year after the unpaid invoices were
issued and mechanic's liens were filed. On Jan. 2, 2019, Zurich,
Fidelity, and Pizzarotti, filed surety bonds in response to the
mechanic's liens.
Thus, the Consolidated Plaintiffs' motions for summary judgment
against Pizzarotti, Zurich, and Fidelity on its lien foreclosure
claim should be granted, Judge Engoron holds.
Though Men of Steel have demonstrated that there is a gap between
the amount Owner paid Pizzarotti and the amount Pizzarotti paid
White, they have not demonstrated that Pizzarotti violated the Lien
Law Trust. While Lien Law Section 71(2) requires that trusts be
used for "expenditures arising out of the improvement of real
property," there are six different valid uses of trusts, only one
of which is paying subcontractors. They have not demonstrated that
the discrepancy is due to an unlawful use of the trust assets,
Judge Engoron holds. Thus, their request for partial summary
judgment on this claim should be denied.
Pizzarotti's Cross-Motion for Summary Judgment
Pizzarotti, in its cross-motion, seeks (1) summary judgment
dismissing all claims asserted by White; (2) summary judgment
dismissing all claims asserted by Grid, Men of Steel, and
USC-Kings; and (3) $2,487,682.41 in damages against White for
alleged breach of contract.
For the reasons stated, Pizzarotti's cross-motion for summary
judgment against Grid, Men of Steel, and USC-Kings is denied.
Additionally, the lien waivers included in the contract and
releases that White signed, and which were intended to shield
Pizzarotti from liability, are "void as against public policy and
wholly unenforceable" and thus unpersuasive in the instant motions,
Judge Engoron opines.
Pizzarotti's cross-motion for summary judgment to dismiss all
claims asserted by White, however, is granted due to White's
default.
As to Pizzarotti's counterclaims for damages, its arguments are
without merit, Judge Engoron holds. Pizzarotti sent the letter
allegedly terminating White for cause eight months after White had
filed its mechanic's liens and the unpaid invoices had accrued well
before the "termination."
Conclusion
Thus, Men of Steel Rebar Fabricators, LLC's motion for summary
judgment on its second cause of action, to foreclose on its
mechanic's lien, is granted and the Clerk is directed to enter
judgment in its favor in the amount of $215,252.41, plus statutory
interest from Dec. 24, 2018. Men of Steel LLC's motion for partial
summary judgment on its first cause of action, based on an alleged
for violation of the Lien Law Trust, is denied.
Grid Logistics motion for summary judgment to foreclose on its
mechanic's lien is granted and the Clerk is directed to enter
judgment in its favor in the amount of $138.941, plus statutory
interest from Oct. 17, 2018.
USC-Kings, LLC's motion for summary judgment to foreclose on its
mechanic's lien is granted and the Clerk is directed to enter
judgment in its favor in the amount of $271,764.58, plus interest
from Oct. 18, 2018.
Pizzarotti, LLC's cross-motion for summary judgment to dismiss the
claims by Men of Steel Rebar Fabricators, LLC, Grid Logistics, LLC,
and USC-Kings, LLC is denied, and its motion for summary judgment
to dismiss White's claims is granted, on default. Finally,
Pizzarotti, LLC's counterclaim for damages is dismissed.
A full-text copy of the Court's Decision + Order dated July 25,
2022, is available at https://tinyurl.com/mth6mt2r from
Leagle.com.
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