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C L A S S A C T I O N R E P O R T E R
Tuesday, August 30, 2022, Vol. 24, No. 167
Headlines
106-108 CONVENT: Court Certifies Class of Tenants in Maddicks Suit
1GLOBE CAPITAL: Gestion Sues Over Control of Sinovac Shares
260 PARTNERS LP: Najera-Ordonez's Bid for Summary Judgment Granted
3M COMPANY: Graff Sues Over Exposure to Highly Toxic Chemicals
3M COMPANY: Happel Sues Over Exposure to Toxic Film-Forming Foams
3M COMPANY: Torres-Irizarry Sues Over Exposure to Toxic Chemicals
4 WHEEL PARTS: Fails to Pay Proper Wages, Estrada Alleges
A CAB LLC: Court Affirms Class Settlement Approval in Dubric Suit
AANIIIH NAKODA: Weidley Suit Removed to N.D. Alabama
AARON CHRYSLER: Trovato Suit Removed to C.D. California
AARON EQUIPMENT: Serrano Sues Over Illegal Collection of Biometrics
ABBOTT LABORATORIES: Dodson Files Suit in S.D. Illinois
ADAM J. RUBINSTEIN: Rivera Sues Over Unsolicited Text Messaging
ADVANCED PHARMACY: Sandusky Files Placeholder Bid for Class Status
AFLAC INCORPORATED: Valenzuela Sues Over Illegal Wiretapping
AFNI INC: Powell Files Suit in C.D. Illinois
ALLSTATE FIRE: Seeks Oral Argument in Keister Class Status Bid
ALLSTATE PROPERTY: Limited Scheduling Order Entered in Cummings
AMAZON.COM INC: Herbs and Spices Contain Heavy Metals, Pettis Says
AMERICAN BEHAVIORAL: Lomedico Files Suit in S.D. New York
AMERICAN HONDA: Class Cert Hearing Continued Until March 2, 2023
AMERICAN NATIONAL: Griggs Alleges Illegal Overdraft Fee Collection
ANTHEM GLENVIEW: Misclassifies Dining Services Directors, Suit Says
ASSURANCE IQ: Court Extends Deadline to File Class Cert Bid
AYA HEALTHCARE: Faces O'Dell Suit Over "Bait-And-Switch" Practices
BANK OF AMERICA: District of Maryland Tosses Mohamed's EFTA Claim
BLANTON & SONS: Russo Seeks Unpaid Overtime Under FLSA
BLENDTEC INC: Isaac Sues Over Blenders' Blade Assembly Defect
BOB'S DISCOUNT: Court Dismisses Without Prejudice Glover's Claims
BP EXPLORATION: Bids to Reschedule in Anderson, Related Suits Nixed
BP EXPLORATION: Court Grants Summary Judgment in Pettaway Suit
BWC HARVEY LLC: Terrell Suit Removed to E.D. Louisiana
C.O.C. BAKERY: Fails to Pay Cashiers' Proper Wages, Garcia Claims
CALIFORNIA STATE: Anders' Bid for Class Cert. Denied W/o Prejudice
CANE BAY: Faces Lindenberger Class Suit Over Tribal Lending Schemes
CAPIO PARTNERS: Vazquez Suit Removed to M.D. Florida
CAPITAL PROJECTS: Has Made Unsolicited Calls, Charman Suit Claims
CASEY'S GENERAL: Lewis Seeks Unpaid Overtime Pay Under FLSA
CEDAR FAIR: Mahoney Sues Over Blind-Inaccessible Website
CELLCO PARTNERSHIP: Corsi Files Suit in D. New Jersey
CEREBRAL MEDICAL: Crossley Sues Over Unpaid Compensation
CHEMTOOL INC: Court Denies Bids to Remand Mackey & Henderson Suits
CHICAGO HOUSING AUTHORITY: Oliver Files Suit in N.D. Illinois
CHILDREN'S HOME: Gonzalez Files Suit in Cal. Super. Ct.
CLEAN HARBORS: Bush Suit Removed to W.D. Louisiana
COINBASE GLOBAL: Faces Patel Securities Suit Over Common Stock Drop
COMSTAR LLC: Basinas Files Suit in D. Massachusetts
CONTRACT LAND: Weinmann Suit Seeks Unpaid OT Wages Under FLSA
DALLAS JONES: Court Denies Bids to Dismiss 3rd Amended McClurg Suit
DALTON POWER: Scheduling Order Entered in Bird Class Action
DIRECT ENERGY: Isabella Geriatric Files Suit in S.D. New York
EDUCATIONAL CREDIT: July 18 Amended Pretrial Sched Order Modified
EMPRESAS BERRIOS: Court Grants Trinidad Leave to Amend Complaint
EPIC SPORTS: Faces Montero Suit over Telephonic Sales Calls
FFE TRANSPORTATION: Cronon Files Suit in Cal. Super. Ct.
FOOD PYRAMID: Fails to Pay Proper Wages, Vera Suit Alleges
FORD MOTOR: Pacheco Sues Over Sale of Defective Motor Engines
FRANK'S PAINTING: Lopez Seeks Unpaid Overtime Under FLSA, NYLL
FRANKLIN WIRELESS: Reschedule of Class Cert. Hearing Sought
FRONTWAVE CREDIT: Ward-Howie Wins Bid to Remand Suit to State Court
FULL SPECTRUM: Parties File Conditional Class Certification Bid
GINNY'S INC: Bids for Summary Judgment, Class Status Due Dec. 15
GMRI INC: Rafferty Files Suit Over Failure to Pay Minimum Wages
GQ SOLUTIONS: Ulery Seeks Leave to Conduct Class Certification
HARTFORD FUNDING: Johnson Files TCPA Suit in E.D. New York
HERE WE COME: Souza Seeks Overtime Pay Under FLSA, NYLL
HONEYWELL INTERNATIONAL: Alencaster Suit Removed to C.D. California
HSBC BANK: Palmer's Bid to Compel Further Written Discovery Denied
IEC CORP: Court Refuses to Revisit Arbitration Order in Britt Suit
IGNITE TEAM: Fails to Pay Proper Wages, Parker Suit Alleges
ILLUMINATE EDUCATION: Cranor Files Suit in C.D. California
IMPERIAL MOBILE: Ochoa Seeks OT Premium Pay Under NYLL, FLSA
INFUCARE RX: Sharfman Files Bid for Class Certification
INSIDER INC: Discloses Digital Users' Personal Info, Roby Says
INTERSYSTEMS CORP: Fails to Properly Pay Manual Workers, Suit Says
J.C. TOYS GROUP: Young Files ADA Suit in S.D. New York
J.G. WENTWORTH COMPANY: Simpson Sues Over Pre-Recorded Calls
JACKSON, MI: 903 West Class Cert. Bid Tossed w/o Prejudice
JCCA: Krasnansky Seeks to Recover Unpaid Wages Under FLSA, NYLL
KASHI SALES: Karney Files Suit in S.D. Florida
KEVIN STATEN: Celluci Files Suit in S.D. Florida
KIA AMERICA INC: Simmons Sues Over Undisclosed Vehicle Defect
KINDER MORGAN: Wins Bid for Judgment on Pleadings in Pedersen Suit
KING DR. HALAL: Neal Sues Over Unpaid Regular and Overtime Wages
LENDINGPOINT LLC: Lynch Sues Over Unsolicited Text Messaging
LIBERTY HEALTHCARE: Fails to Pay Overtime Pay, Adams Alleges
LOANDEPOT.COM LLC: Smaling Suit Removed to S.D. Florida
LUVATA APPLETON: Fails to Pay Proper Wages, Newman Suit Alleges
LUXOTTICA OF AMERICA: Gabourel Must File Class Cert Bid by Nov. 18
M.A.G. ENTERPRISES: Wu Sues Over Unpaid Wages, Illegal Kickbacks
MANKIN LAW: Denning Seeks to Certify FDCPA and State Law Class
MARATHON OIL: Fails to Pay Inspectors' OT Wages, Walker Suit Says
MAXIM HEALTHCARE: Miller Sues to Recover Pay Losses
MDL 2824: Court Nixes Expert Testimony on Total Amount of Damages
METRO AIR SERVICE: Gomez Suit Removed to C.D. California
MICHIGAN AVENUE IMMEDIATE: Cornell Files Suit in N.D. Illinois
MIDDLESEX SAVINGS BANK: O'Neil Sues Over Improper Fee Charges
MINNEAPOLIS, MN: Goyette, et al., File Bid for Class Certification
MP MANAGEMENT: Link Seeks Minimum & OT Wages for Delivery Drivers
MURAD LLC: Faces Seger Suit Over Unsolicited Text Ads
MURPHY WELL: Fails to Pay Flowback Operators' OT, Escalera Claims
MYLIFE.COM INC: Stipulation to Stay Pending Mediation Nixed
NEW PRIME: Parties Must Show Cause Why Class Cert Should Be Sealed
NEW YORK, NY: Perez-Pedemonti Files Suit in S.D. New York
NORTHSHORE UNIVERSITY: Ill. App. Affirms Dismissal of Kioutas Suit
OAK VIEW GROUP: Bour Sues Over Unpaid Compensations
OMEGA PROJECT: Fails to Pay Workers' OT Under FLSA, Vinson Says
ONE SOURCE TECHNOLOGY: Savedra FCRA Suit Removed to N.D. California
OUR DREAM: Fails to Pay Delivery Drivers' Adequate Wages, Suit Says
PENNSYLVANIA: Court Awards Wallace $100-Mil. in Punitive Damages
PEOPLECONNECT INC: Abraham, et al., Seek to Certify Class
POPPIN CAR: Olvera Sues Over Workers' Unpaid Overtime Wages
PORTFOLIO RECOVERY: Suxstorf Suit Moved to Milwaukee Circuit Court
PRAIRIE VILLAGE: Church Mutual Wins Bid for Judgment on Pleadings
PREMIER NUTRITION: Court to Award Montera & Class $8.3MM in Damages
PRIMAL FLOWBACK: Misclassifies Flowback Operators, Sylvester Says
PROGRESSIVE DIRECT: Alleges Improper Insurance Business Practices
PROMISES BEHAVIORAL: Cody Alleges Wiretapping of Website Visitors
PRUSSIAN INC: Wang Seeks Minimum & OT Wages Under FLSA, NYLL
PUBLIX SUPERMARKETS: M.D. Florida Dismisses Amara Consumer Suit
QUEST DIAGNOSTICS: Perlin Sues Over Illegal Medical Debt Collection
QUONTIC BANK: Scheduling Order Entered in Sapan Class Action
RAINBOW REALTY: Wins Cross-Motion for Summary Judgment in FHC Suit
RAVALLI COUNTY, MT: Oral Argument on Pending Bids Set for Sept. 7
RECKITT BENCKISER: Digiacinto Sues Over Mislabeled Cough Products
RECREONICS INC: Court Enters Consent Decree in Feliz Class Suit
ROEHL TRANSPORT: Seeks Unpaid Wages for Truck Drivers Under FLSA
ROUNDY'S ILLINOIS: Prgam Seeks Overtime Pay Under FLSA, NYLL
ROUNDY'S ILLINOIS: Qazi Seeks Unpaid OT Wages Under FLSA, IMWL
ROUNDY'S ILLINOIS: Underpays Store Managers, Larson Class Suit Says
ROUNDY'S ILLINOIS: Weaver Seeks Overtime Pay Under FLSA, IMWL
RUEY CHAI CORP: Fails to Pay Proper Wages, Olivar Suit Alleges
SEA THAI HOSPITALITY: Fails to Pay Proper Wages, Banjong Alleges
SEDGWICK CLAIMS: Gibbs Seeks to Certify FLSA Collective Action
SERVE U BRANDS: Underpays General Workers, Gillis Suit Claims
SILVER HEART: Faces Baxter Suit Over Failure to Pay Overtime Wages
SOUTH DAKOTA: Scheduling Order Entered in Irvine Class Suit
SPEEDWAY MOTORS: Walli Sues Over Unsolicited Text Messages
STRATEGIC DELIVERY: Court Certifies FLSA Class in Zambrano Suit
TELADOC HEALTH: Faces Schutter Class Suit Over Stock Price Drop
TEXAS: 5th Circuit Affirms Dismissal of Angton v. Collier & TDCJ
TRACY, CA: Vargas Files Suit in Cal. Super. Ct.
TROY LAND: Rivas Seeks Unpaid Wages for OT Work Under FLSA, NYLL
TRUMP FERRY: Faces Rodriguez Wage-and-Hour Suit in S.D.N.Y.
UBER TECHNOLOGIES: Faces Cao Suit Over Drop in Share Price
UNITED STATES: Hospital Wins Summary Judgment Bid on Fees & Costs
UNITED STATES: Suit Seeks to Certify Health-Care Providers Class
VALVE CORP: Interim Co-Lead Class Counsel Named in Antitrust Suit
WALBRIDGE ALDINGER: Rice Seeks Unpaid Overtime Wages Under FLSA
WESTERN WASHINGTON: Breaches Fiduciary Duties, Johnson Suit Says
WHITING-TURNER/KOKOSING: Class Cert. Denial in Vance Suit Affirmed
*********
106-108 CONVENT: Court Certifies Class of Tenants in Maddicks Suit
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In the case, THERESA MADDICKS, JOHN AMBROSIO, PAUL WILDER, SAMUEL
WILDER, ALYSSA O'CONNELL, JOHANNA KARLIN, BRIAN WAGNER, TYLER
STRICKLAND, DANIEL ROBLES, ELENA RICARDO, LIAM CUDMORE, JENNIFER
MAK, JOSHUA BERG, ANISH JAIN, JOHN CURTIN, JONATHAN FIEWEGER, MARIA
FUNCHEON, JORDANI SANCHEZ, MELLISA MICKENS, M.D. IVEY, DEVIN
ELTING, SEMI PAK, KAITLIN CAMPBELL, SARAH NORRIS, MIKIALA JAMISON,
SHERESA JENKINSRISTEKI, YANIRA GOMEZ, KRISTEN PIRO, Plaintiffs v.
106-108 CONVENT BCR, LLC, 110 CONVENT BCR, LLC, 408-412 PINEAPPLE,
LLC, 510-512 PINEAPPLE, LLC, 535-539 WEST 155 BCR, LLC, 3750
BROADWAY BCR, LLC, 3660 BROADWAY BCR, LLC, 605 WEST 151 BCR, LLC,
545 EDGECOMBE BCR, LLC, Defendants, Docket No. Index No.
656345/2016 (N.Y. Sup.), Judge Sabrina Kraus of the New York
Supreme Court, New York County, grants the Plaintiffs' motion for
class certification.
The Plaintiffs brought the lawsuit, on their own behalf and on
behalf of a putative class of tenants to end the alleged illegal
and fraudulent practices employed by the Defendants with respect to
evasion of rent regulation as against tenants in the subject
buildings.
The Defendants are all single purpose entities (SPEs) that own and
operate the following New York City buildings: 106 Convent Avenue;
110 Convent Avenue; 408 West 129th Street; 412 West 129th Street;
510 West 134th Street; 512 West 134th Street; 535 West 155th
Street; 3750 Broadway; 555 West 151st Street (a/k/a 3660 Broadway);
605 West 151st Street; and 545 Edgecombe Avenue. These buildings
are collectively referred to herein as the "Big City Portfolio."
Each of the SPEs is owned by a single purpose LLC whose sole member
is either Big City Realty, LLC, or Magnolia Holdings, LLC. Both Big
City Realty and Magnolia Holdings have, at times, had identical
managers and corporate addresses, and Chaim Katzman is listed as a
member of both entities. Each property in the Big City Portfolio is
managed by a management entity under the control of Kobi Zamir.
The Plaintiffs allege the Defendants improperly used preferential
rents as to three tenants: Theresa Maddicks in Apartment 14 at 106
Convent Avenue; John Ambrosio in Apartment 17 at 106 Convent
Avenue; and Johanna S. Karlin lives in Apartment 4 at 408 W. 129th
Street.
The remaining Plaintiffs allege claims based on improper Individual
Apartment Improvements (IAIs), failures to register or a
combination of both: Paul and Samuel Wilder reside in Apartment 1
at 110 Convent Avenue; Alyssa O'Connell resided in Apartment 11 at
110 Convent Avenue; Brian Wagner lives in Apartment 14 at 408 W.
129th Street; Tyler Strickland and Daniel Robles lived in Apartment
15 at 408 W. 129th Street; Elena Ricardo lived in Apartment 20 at
408 W. 129th Street; Jennifer Mak lives in Apartment 4 at 412 W.
129th Street; Joshua Berg lives in Apartment 6 at 412 W. 129th
Street; Anish Jain and John Curtin lived in Apartment 11 at 412 W.
129th Street; Jonathan Fieweger lives in Apartment 20 at 412 W.
129th Street; Jordani Sanchez lives in Apartment 25 at 412 W. 129th
Street; Melissa Mickens lived in Apartment 33 at 510 W. 134th
Street; M.D. Ivey lived in Apartment 53 at 510 W. 134th Street; and
Devin Elting lives in Apartment 33 at 512 W. 134th Street.
The Plaintiffs further allege that the Defendants appear to have
created an illusory tenancy. Semi Pak lived in Apartment 42 at 512
W. 134th Street; Kaitlin Campbell lives in Apartment 41 at 535 W.
155th Street; Sarah Norris lives in Apartment 63 at 3750 Broadway;
Mikiala Jamison lives in Apartment 3 at 555 W. 151St Street;
Sheresa Jenkins-Risteki lived in Apartment 31 at 555 W. 151st
Street; Yanira Gomez lives in Apartment 24 at 605 W. 151th Street;
and Kristin Piro lives in Apartment 3A at 545 Edgecombe Avenue.
On Nov. 16, 2017, the Supreme Court granted the Defendants' motion
to dismiss pursuant to CPLR Section 3211 [2017 NY Slip Op
32385(U)]. On July 26, 2018, the Appellate Division modified
holding the trial court's motion to dismiss was premature. On Nov.
18, 2019, the New York Court of Appeals affirmed the Appellate
Division's ruling and remitted the matter to the Supreme Court.
On May 14, 2021, the Plaintiffs moved for an order certifying a
CPLR 906(1) class. The motion was fully submitted on June 22, 2021.
Subsequently, the action was reassigned to the Supreme Court. On
June 8, 2022, the motion was marked submitted and decision was
reserved.
The Plaintiffs seek class certification under CPLR Section 906(1)
which provides that "an action may be brought or maintained as a
class action with respect to particular issues." CPLR Section
906(1) is identical to FRCP 23(c)(4)(a). The Plaintiffs must
demonstrate numerosity, typicality, adequacy, and superiority,
under CPLR 901(a). Then, with respect to CPLR 906, they must
identify a common issue, or issues, for certification on a
class-wide basis, rendering remaining issues to be decided on an
individual-by-individual basis.
Judge Kraus finds that (i) there are 329 apartments at issue, so
the Plaintiffs have established numerosity and this is not
challenged by the Defendants; (ii) the proposed Lead Plaintiffs
each allege they were harmed by the same "methodical attempt to
illegally inflate rents," that harmed the proposed class, so
typicality has been established; (iii) the proposed class
representatives have no known conflicts of interest with the other
class members; (iv) the law firm of Newman Ferrara LLP is
competent, and the firm's attorneys have sufficient experience in
both class action and landlord-tenant litigation; and (v) a class
action is the superior method of adjudication of the matter.
The Plaintiffs allege that the Defendants have engaged in a scheme
designed to evade New York's rent-regulations, and that this scheme
takes three forms: (a) failure to register apartments, in some
instances, for a decade or more; (b) utilizing illegal first market
rents on decontrolled apartments; and (c) taking credit for
unperformed, or underperformed, IAI increases to justify increasing
the legal regulated rent and/or deregulating units.
Judge Kraus finds that CPLR 906 certification is appropriate on the
issue of whether the Defendants engaged in a common scheme to evade
rent regulation by: failing to register apartments; (b) utilizing
illegal first market rents on decontrolled apartments; and (c)
taking credit for unperformed, or underperformed, IAI increases to
justify increasing the legal regulated rent and/or deregulating
units.
In addition to the factors set forth in CPLR Section 901, courts
also consider the following factors in determining whether class
certification is appropriate: the interest of the class members in
individually controlling the prosecution or defense of the separate
actions; the impracticability or inefficiency of prosecuting or
defending separate actions; the extent and nature of any litigation
concerning the controversy already commenced by or against members
of the class; the desirability or undesirability of concentrating
the litigation of the claim in any particular forum; and the
difficulties likely to be encountered in the management of a class
action.
Judge Kraus holds that the first two factors, the putative class
members' interest in maintaining separate actions, and the
feasibility thereof, demonstrate class certification is
appropriate. Tenants with substantial claims retain the right to
opt out, but may prefer not to have to retain, and pay, their own
attorneys to litigate. The third and fourth factors listed in CPLR
Section 902 are also met. No other pending litigation involving
this controversy exists, other than the eviction proceeding.
Finally, the types of computations required to ascertain damages
are akin to analysis of claims in performing due diligence as part
of the purchase of a portfolio of buildings in New York City.
Having a special master, as the Plaintiffs suggested, and was
employed in the Charron litigation, is a viable option to address
this issue.
Judge Kraus also holds that the Plaintiffs' proposed notice
provides a clear, concise and balanced description of the claims in
the case and the class members' rights and options. In order to
identify class members and disseminate the Notice, they request
that the Court compels the Defendants to promptly produce the names
of Class members. For existing residents of the Building, a current
rent roll is sought, to allow Plaintiffs to disseminate notice
through a mailing. For former Building residents, the Plaintiffs
seek full and complete names, and the last known work and home
addresses of those Class members. There is sufficient precedent to
grant these requests and the Court directs the Defendants to
provide the requested discovery.
Finally, in their moving papers, the Plaintiffs assert they will in
the future move for the appointment of a Special Master or Referee
pursuant to CPLR Sections 4201 and 4311. In their reply papers they
imply that the Court should grant this relief on the pending
motion.
Judge Kraus declines to grant said relief at this juncture, as it
was not sought in the moving papers and she deems it to be
premature at this stage of the litigation.
In light of the foregoing, Judge Kraus grants the motion for class
certification. The issue certified is whether the Defendants
engaged in a fraudulent scheme to evade rent regulation by: Failing
to register apartments; utilizing illegal first market rents on
decontrolled apartments; and taking credit for unperformed, or
underperformed, IAI increases to justify increasing the legal
regulated rent and/or deregulating units; and it is further
The class will consist of all persons who were tenants in the
buildings owned and operated by Defendants 106-108 Convent BCR,
LLC, 110 Convent BCR, LLC, 408-412 Pineapple, LLC, 510-512
Pineapple, LLC, 535-339 West 155 BCR, LLC, 3750 Broadway BCR, LLC,
3660 Broadway BCR, LLC, 605 West 151 BCR, LLC, and 545 Edgecombe
BCR, LLC between Dec. 6, 2012 and the present.
The Sub-Class will consist of all current tenants of the Big City
Portfolio who reside in rent-stabilized or de-regulated
apartments.
Kristin Piro, Elena Ricardo, and Theresa Maddicks are the lead
plaintiffs and class representatives.
Newman Ferrara LLP is appointed as class counsel.
Within 30 days of this order, the Defendants will provide the
Plaintiffs with copies of the rent rolls for the years in question,
the rent roll for the current year, and a list of the names, phone
numbers, email addresses, and last known work and home addresses of
those class members who no longer reside in the Subject Buildings.
Within 20 days of their receipt of this discovery, the Plaintiffs
will serve notice of the class action in the form submitted as
Exhibit 109 to the Sachar Affirmation, by first class mail to their
current or last known addresses as well as by email, where this
information is available.
Within 20 days from entry of the Order, the Plaintiffs will serve a
copy of the Order with notice of entry on the Defendants and the
Clerk of the General Clerk's Office (60 Centre Street, Room 119).
Such service upon the Clerk will be made in accordance with the
procedures set forth in the Protocol on Courthouse and County Clerk
Procedures for Electronically Filed Cases (accessible at the
"E-Filing" page on the Court's website at the address
www.nycourts.gov/supctmanh).
Judge Kraus' Order constitutes the decision and order of the
Court.
A full-text copy of the Court's Aug. 12, 2022 Decision + Order is
available at https://tinyurl.com/kx7nr7m4 from Leagle.com.
1GLOBE CAPITAL: Gestion Sues Over Control of Sinovac Shares
-----------------------------------------------------------
MW GESTION, individually and on behalf of all others similarly
situated, Plaintiff v. 1GLOBE CAPITAL LLC; JIAQIANG LI; CHIANG LI
FAMILY; JEFF LI; and LINDA LI, Defendants, Case No.
1:22-cv-11315-NMG (D. Mass., Aug. 16, 2022) is a federal securities
class action arises out of the Defendants' fraud in connection with
their battle for control of Sinovac, a biopharmaceutical company
that focuses on the research, development, manufacturing, and
commercialization of vaccines.
According to the complaint, since January 2016, competing sets of
shareholders have been vying for control of Sinovac. The Defendants
are individuals and entities associated with 1Globe Capital LLC
("1Globe"), a family investment office that is owned and controlled
by the Defendant Jiaqiang Li.
Li was Sinovac's largest shareholders when the Company's CEO made
an offer in January 2016 to buy Sinovac for approximately $350
million. Li supported a competing group that sought to buy Sinovac
for a higher price. Rather than provide this support in an open and
transparent manner, Li and 1Globe used deceptive practices to
advance their position.
After Sinovac adopted a rights agreement on March 28, 2016
containing a "poison pill" that limited the amount of Sinovac stock
that a shareholder could acquire (the "Rights Agreement"), the
Defendants made many intentionally false and misleading statements,
and violated their statutory disclosure obligations under the
Securities Exchange Act of 1934, in order to conceal the extent and
purpose of Li's and 1Globe's ownership of Sinovac stock, says the
suit.
1GLOBE CAPITAL LLC engaged in private and public investments,
specifically in the healthcare and high-tech sectors. [BN]
The Plaintiff is represented by:
Glen DeValerio, Esq.
Daryl Andrews, Esq.
ANDREWS DEVALERIO LLP
P.O. Box 67101
Chestnut Hill, MA 02467
Telephone: (617) 999-6473
Email: daryl@andrewsdevalerio.com
glen@andrewsdevalerio.com
- and -
Jeremy A. Lieberman, Esq.
Michael Grunfeld, Esq.
J. Alexander Hood II, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (917) 463-1044
Email: jalieberman@pomlaw.com
mgrunfeld@pomlaw.com
ahood@pomlaw.com
260 PARTNERS LP: Najera-Ordonez's Bid for Summary Judgment Granted
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Judge Lynn R. Kotler of the Supreme Court of the State of New York,
New York County, grants the Plaintiffs' motion for summary judgment
in the lawsuit captioned JORGE A NAJERA-ORDONEZ, et al. v. 260
PARTNERS L.P., et al., Index No. 160546/2017 (N.Y. Sup.).
The lawsuit is a class action alleging Roberts v. Tishman Speyer
Props., L.P. (13 N.Y.3d 270 [2009]) type J-51 rent overcharges. The
Plaintiffs now move for summary judgment in their favor and to
dismiss the Defendants' affirmative defenses and counterclaims.
The Defendants oppose the motion and cross-move for an order: (a)
granting them summary judgment; (b) permitting them to file and
amend Division of Housing and Community Renewal ("DHCR") apartment
registrations for 2013 through 2017 in accordance with the
four-year rule; and (c) scheduling a hearing before a special
referee to determine the apartments' current rents and the
Plaintiffs' overcharge damages in accordance with the four-year
rule. The Plaintiffs oppose the cross-motion. Issue has been joined
and note of issue has not yet been filed. Therefore, summary
judgment relief is available.
In an interim order dated March 11, 2022, the Court directed the
Plaintiff to refile each exhibit on NYSCEF and adjourned the motion
for oral argument on April 19, 2022. Oral argument was held on that
date. Subsequently, in an interim order dated July 19, 2022, the
Court erroneously scheduled this motion for oral argument again.
Since that order was issued in error, it is sua sponte vacated, as
the Court advised via email to the parties on July 27, 2022.
Plaintiffs Jorge A. Najera-Ordonez and E. Lopez, individually, and
on behalf of all others similarly situated, tenants and former
tenants at the building located at 260 Convent Avenue in Manhattan.
Specifically, there are 37 apartments at issue. The Defendants are
260 Partners, L.P., which owns the apartment building and Beach
Lane Management, the managing agent for the building.
The undisputed facts are that following Roberts, which held that
rent-regulated apartments could not be removed from rent
stabilization while the building received J-51 benefits, the
Defendants continued deregulating units in the building.
Specifically, eight units were removed from the rent-stabilization
rolls after Roberts was decided.
Further, Mitchell Rothken, a manager of Beach Lane, admitted that
he, and Beach Lane, knew of the Roberts decision in 2009. It is
also undisputed that the Defendants did not promptly re-register
units after the First Department's decision in Gersten v. 56 7th
Ave. LLC, (88 A.D.2d 189 [1st Dept 2011]) decision, which required
that apartments deregulated pre-Roberts, needed to be returned to
the rent-stabilization rolls promptly.
Finally, Judge Kotler notes, the Plaintiffs have shown that when
the Defendants re-registered apartments for rent-stabilization,
they utilized preferential rents in violation of guidance provided
by DHCR vis-a-vis its J-51 FAQ.
On this record, the Plaintiffs have, thus, shown that the
Defendants engaged in fraud and not just because they deregulated
apartments while receiving J-51 benefits, Judge Kotler holds.
Contrary to the Defendants' contention, the Plaintiffs have shown
more than merely allege the dates of the deregulations. Defense
counsel asserts that indeed, other than apartment 105, these
apartments were deregulated or last registered as rent stabilized
prior to March 6, 2012, the date that the appeal from Gersten v. 56
7th Ave. LLC, 88 A.D.3d 189 (1st Dep't 2011), in which the
Appellate Division first determined that Roberts applied
retroactively, was withdrawn.
This argument is unavailing in the face of the undisputed facts on
this record, Judge Kotler points out.
Mitchell Rothken, a manager of Beach Lane, the managing agent for
the building testified in another J-51 action, that he, and Beach
Lane, knew of the Roberts decision in 2009. In 2015, Beach Lane
issued refunds and registered rent-stabilized units in a nearby
building but took no action at 260 Convent. In 2016, the Division
of Housing and Community Renewal ("DHCR"), issued a "J51 FAQ,"
which advised landlords to re-register their units, yet the
Defendants waited an additional six months to register.
When the Defendants did register, they used rents for some of the
units that were higher than the rent being paid by tenants. Such
acts were in contravention to the explicit guidance from DHCR in
the J51 FAQ which advised that the legal regulated rent to be
registered cannot exceed the actual rent being paid by the tenant,
Judge Kotler opines.
In total, Judge Kotler finds, the Defendants' conduct demonstrates
a fraudulent scheme to deregulate the apartments at the building.
The Defendants argue that the issue of whether they engaged in a
fraudulent scheme cannot be answered on a building-wide basis but
must be considered apartment by apartment. The Court disagrees. The
Defendants' treatment of all of the apartments at the building
should not be considered myopically in a vacuum.
The Defendants contend that only eight apartments were deregulated
after Roberts, but there is no dispute that the Defendants did not
promptly attempt to register the 29 apartments improperly
deregulated before Roberts. The Defendants' reliance on Gridley v.
Turnbury Vil., LLC, (196 A.D.3d 95 [2d Dept 2021]) is misplaced, as
the deregulation at issue was made in good faith, Judge Kotler
explains. There is no evidence on this record that the Defendants'
actions here were made in good faith.
The Plaintiffs are also entitled to summary judgment dismissing the
Defendants' affirmative defenses, Judge Kotler holds. Beach Lane is
not immune to liability because as the Plaintiffs' counsel
correctly points out, it participated in the fraudulent scheme and
is, therefore, a proper party. Thus, the second and third
affirmative defenses that Beach Lane has no privity with the
Plaintiffs or is an agent for a disclosed principal are severed and
dismissed.
Judge Kotler also holds that the remaining defenses are either
meritless (fraud with particularity, previous recovery, compliance
with application regulations, primary residence, statute of
limitations, unjust enrichment), conclusory (another adequate
remedy at law, good faith reliance, waiver/release/estoppel,
documentary evidence, failure to state a cause of action) or
inapplicable (unconstitutional retroactive damages, the Plaintiffs
do not seek treble damages in this class action, four-year
defense).
Since the Plaintiffs have established by clear and convincing
evidence that the Defendants engaged in a fraudulent scheme to
deregulate the subject apartments, the default formula under RSC
Section 2522.6[b][3] must be applied, Judge Kotler holds.
Accordingly, the issue of the proper calculations for base rent
dates and legally regulated rent-stabilized rents utilizing the
DHCR's default formula for each of the 37 apartments at issue is
referred to a Special Referee or JHO to hear and report. After a
motion to confirm or reject the Report of the JHO/Special Referee
is decided, the Plaintiffs may move for the entry of money
judgments for rent overcharges and legal fees, if any.
In accordance therewith, it is ordered that the Court's interim
order dated July 19, 2022, which erroneously scheduled this motion
for oral argument on Aug. 2, 2022, is vacated.
The Plaintiff's motion is granted to the extent that the Court
finds that the Defendants engaged in a fraudulent scheme to
deregulate the subject 37 apartments, the Defendants' affirmative
defenses are dismissed and the issues of:
(1) calculating the base rent date for each Plaintiff's
apartment utilizing the DHCR's default formula; and
(2) calculating the maximum legal regulated rent for each
Plaintiff's apartment are referred to a Special Referee to
hear and report.
Judge Kotler directs the Plaintiffs to, within 60 days from entry
of this decision/order, serve a copy of this Order with notice of
entry, together with a complete Information Sheet, upon the Special
Referee Clerk in the Motion Support Office (Room 119M), who is
directed to place this matter on the calendar of the Special
Referee's Part and/or assign this matter to a JHO for the earliest
convenient date.
Any motion to confirm or reject the Report of the JHO/Special
Referee will be made within the time and in the manner specified in
CPLR 4403 and section 202.44 of the Uniform Rules for the Trial
Courts. The Defendants' cross-motion is denied.
Any requested relief not expressly addressed here has nonetheless
been considered and is hereby expressly rejected and this
constitutes the decision and order of the Court.
A full-text copy of the Court's Decision and Order dated Aug. 11,
2022, is available at https://tinyurl.com/yc6vn7ey from
Leagle.com.
3M COMPANY: Graff Sues Over Exposure to Highly Toxic Chemicals
--------------------------------------------------------------
Khalifah Graff, and other similarly situated v. 3M COMPANY fka
MINNESOTA MINING & MANUFACTURING CO.; BUCKEYE FIRE EQUIPMENT CO.;
CHEMGUARD, INC.; CORTEVA, INC.; DUPONT DE NEMOURS, INC.; DYNAX
CORPORATION; E.I. DUPONT DE NEMOURS & CO.; KIDDE-FENWALL, INC.;
KIDDE FIRE FIGHTING, INC.; KIDDE PLC, INC.; NATIONAL FOAM, INC.;
THE CHEMOURS CO.; THE CHEMOURS COMPANY FC, LLC; TYCO FIRE PRODUCTS,
LP; UTC FIRE & SECURITY AMERICA'S, INC; and DOES 1 to 100,
INCLUSIVE; Case No. 2:22-cv-02268-RMG (D.S.C., July 14, 2022), is
brought involving highly toxic chemicals which have earned the
designation "the forever chemicals" because they do not breakdown
and their insidious nature allows them to travel through soil and
into groundwater while maintaining their deadly nature for
decades.
This action deals with Aqueous Film Forming Foams ("AFFF") that
were designed, manufactured and sold as firefighting compounds.
AFFF compounding includes Perfluoro octane Sulfonate (commonly
known as "PFOS"), PerfluorooctanoicAcid (commonly known as "PFOA"),
and/or other Per-and Polyfluoroalkyl substances (together, with
PFOS and PFOA, commonly known as "PFAS") which are manmade
organofluorine compounds (in this case commonly referred to as
fluorinated surfactants/fluorocarbon surfactants). The compounds
are designed to lower the surface tension of water so as to create
a firefighting foam to quell/smother (cutting off oxygen), for
example, jet fuel fires.
AFFF is created by mixing fluorine-free hydrocarbon foaming
substances (chemical agents designed for a particular purpose) with
fluorinated surfactants and mixing that with water which creates an
aqueous film, i.e.: Aqueous Film Forming Foams ("AFFF"). The
manufacturing processes involved in this action are asserted to
have used fluorocarbon surfactants which are believed to include
PFOS and PFOA (and/or other per fluorinated compounds known as
"PFC" are also believed to be in the mix. PFC's are posited to
break down in PFOS and PFOA).
The Plaintiff joined the US Army in 1994 and was subsequently
assigned to Fort Hood, Texas (2002-2004). At all times relevant,
Plaintiff lived/worked on Post at Fort Hood using and drinking the
water. Fort Hood is suspected to have elevated PFAS environmental
contamination levels. In 2016, Graff was diagnosed with thyroid
disease and commenced on-going medical treatment inclusive of
surgical intervention via a right thyroid lobectomy. As known by
the Defendants, thyroid disease is a disease linked to PFAS
contamination. The Plaintiff did not discover that PFAS was a cause
of the harm until Summer 2020, when she saw internet information,
says the complaint.
The Plaintiff was a member of the U.S. Army, who during her service
was stationed at Fort Hood, a military installation identified as
being contaminated through use of the toxic chemicals which are the
subject of this action.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Jeremy C. Shafer, Esq.
BANNER LEGAL
445 Marine View Avenue, Suite 100
Del Mar, CA 92014
Phone: (760) 479-5404
Email: jshafer@bannerlegal.com
- and -
S. James Boumil, Esq.
BOUMIL LAW OFFICES
120 Fairmount Street
Lowell, MA, 01852
Phone: (978) 458-0507
Email: sjboumil@boumil-law.com
- and -
Konstantine Kyros, Esq.
KYROS LAW
17 Miles Rd.
Hingham, MA 02043
Phone: (800) 934-2921
Email: kon@kyroslaw.com
3M COMPANY: Happel Sues Over Exposure to Toxic Film-Forming Foams
-----------------------------------------------------------------
Robert Happel, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing, Co.), AGC CHEMICALS AMERICAS,
INC., AMEREX CORPORATION, ARCHROMA MANAGEMENT, LLC, ARCHROMA U.S.,
INC., ARKEMA, INC., individually and as successor-in-interest to
Atofina, S.A., BASF CORPORATION, individually and as
successor-in-interest to Ciba, Inc., BUCKEYE FIRE EQUIPMENT CO.,
CARRIER GLOBAL CORPORATION, individually and as successor-interest
to Kidde-Fenwal, Inc., CHEMDESIGN PRODUCTS, INC., CHEMGUARD, INC.,
CHEMICALS, INC., CHUBB FIRE, LTD., CLARIANT CORPORATION, CORTEVA,
INC., individually and as successor-in-interest to DuPont Chemical
Solutions Enterprise, DEEPWATER CHEMICALS, INC., DUPONT DE NEMOURS,
INC., individually and as successor-in-interest to DuPont Chemical
Solutions Enterprise, DYNAX CORPORATION, E.I. DUPONT DE NEMOURS &
COMPANY, individually and as successor-in-interest to DuPont
Chemical Solutions Enterprise, KIDDE-FENWAL, INC., individually and
as successor-in-interest to Kidde Fire Fighting, Inc., KIDDE PLC,
INC., NATION FORD CHEMICAL COMPANY, NATIONAL FOAM, INC., THE
CHEMOURS COMPANY, individually and as successor-in-interest to
DuPont Chemical Solutions Enterprise, THE CHEMOURS COMPANY FC, LLC,
individually and as successor-in-interest to DuPont Chemical
Solutions Enterprise, TYCO FIRE PRODUCTS LP, as
successor-in-interest to The Ansul Company, UNITED TECHNOLOGIES
CORPORATION, and UTC FIRE & SECURITY AMERICAS CORPORATION (f/k/a GE
Interlogix, Inc.), Case No. 2:22-cv-02273-RMG (D.S.C., July 14,
2022), is brought for damages for personal injury resulting from
exposure to aqueous film-forming foams ("AFFF") containing the
toxic chemicals collectively known as per and polyfluoroalkyl
substances ("PFAS"). PFAS includes, but is not limited to,
perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid
("PFOS") and related chemicals including those that degrade to PFOA
and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires. The Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter and was diagnosed with
prostate cancer as a result of exposure to the Defendants' AFFF
products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Richard Zgoda, Jr. , Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Phone: 631-600-0000
Facsimile: 631-543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Phone: 205-328-9200
Facsimile: 205-328-9456
3M COMPANY: Torres-Irizarry Sues Over Exposure to Toxic Chemicals
-----------------------------------------------------------------
Randi Torres-Irizarry, and other similarly situated v. 3M COMPANY
fka MINNESOTA MINING & MANUFACTURING CO.; BUCKEYE FIRE EQUIPMENT
CO.; CHEMGUARD, INC.; CORTEVA, INC.; DUPONT DE NEMOURS, INC.; DYNAX
CORPORATION; E.I. DUPONT DE NEMOURS & CO.; KIDDE-FENWALL, INC.;
KIDDE FIRE FIGHTING, INC.; KIDDE PLC, INC.; NATIONAL FOAM, INC.;
THE CHEMOURS CO.; THE CHEMOURS COMPANY FC, LLC; TYCO FIRE PRODUCTS,
LP; UTC FIRE & SECURITY AMERICA'S, INC; and DOES 1 to 100,
INCLUSIVE; Case No. 2:22-cv-02265-RMG (D.S.C., July 14, 2022), is
brought involving highly toxic chemicals which have earned the
designation "the forever chemicals" because they do not breakdown
and their insidious nature allows them to travel through soil and
into groundwater while maintaining their deadly nature for
decades.
This action deals with Aqueous Film Forming Foams ("AFFF") that
were designed, manufactured and sold as firefighting compounds.
AFFF compounding includes Perfluoro octane Sulfonate (commonly
known as "PFOS"), PerfluorooctanoicAcid (commonly known as "PFOA"),
and/or other Per-and Polyfluoroalkyl substances (together, with
PFOS and PFOA, commonly known as "PFAS") which are manmade
organofluorine compounds (in this case commonly referred to as
fluorinated surfactants/fluorocarbon surfactants). The compounds
are designed to lower the surface tension of water so as to create
a firefighting foam to quell/smother (cutting off oxygen), for
example, jet fuel fires.
AFFF is created by mixing fluorine-free hydrocarbon foaming
substances (chemical agents designed for a particular purpose) with
fluorinated surfactants and mixing that with water which creates an
aqueous film, i.e.: Aqueous Film Forming Foams ("AFFF"). The
manufacturing processes involved in this action are asserted to
have used fluorocarbon surfactants which are believed to include
PFOS and PFOA (and/or other per fluorinated compounds known as
"PFC"' are also believed to be in the mix. PFC's are posited to
break down in PFOS and PFOA).
The Plaintiff joined the Army and was subsequently assigned to Fort
Hood, TX (1996-1997). The Plaintiff lived/worked on Base at Fort
Hood using and drinking the water. On information and belief, Fort
Hood is believed to have elevated PFAS environmental contamination
levels. In 2011, Pina was diagnosed with kidney cancer and
commenced on-going medical treatment inclusive of surgical
intervention via a right partial nephrectomy. As known by the
Defendants, kidney cancer is a disease linked to PFAS
contamination. The Plaintiff did not discover that PFAS was a cause
of the harm until Summer 2020 when he saw internet information,
says the complaint.
The Plaintiff was a member of the U.S. Army, who during his service
was stationed at Fort Hood, a military installation identified as
being contaminated through use of the toxic chemicals which are the
subject of this action.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS-containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Jeremy C. Shafer, Esq.
BANNER LEGAL
445 Marine View Avenue, Suite 100
Del Mar, CA 92014
Phone: (760) 479-5404
Email: jshafer@bannerlegal.com
- and -
S. James Boumil, Esq.
BOUMIL LAW OFFICES
120 Fairmount Street
Lowell, MA, 01852
Phone: (978) 458-0507
Email: sjboumil@boumil-law.com
- and -
Konstantine Kyros, Esq.
KYROS LAW
17 Miles Rd.
Hingham, MA 02043
Phone: (800) 934-2921
Email: kon@kyroslaw.com
4 WHEEL PARTS: Fails to Pay Proper Wages, Estrada Alleges
---------------------------------------------------------
LEOBARDO ESTRADA, individually and on behalf of all others
similarly situated, Plaintiff v. 4 WHEEL PARTS WHOLESALERS, LLC;
TRANSAMERICAN AUTO PARTS COMPANY, LLC; POLARIS INDUSTRIES, INC.;
SKILLSET GROUP, INC.; and DOES 1 TO 100, INCLUSIVE, Case No.
22STCV26601 (Cal. Super., Los Angeles Cty., Aug. 17, 2022) is an
action against the Defendant for failure to pay minimum wages,
overtime compensation, and provide accurate wage statements.
Plaintiff Estrada was employed by the Defendants as staff.
4 WHEEL PARTS WHOLESALERS, LLC is engaged in providing truck, Jeep,
SUV and off-road performance products. [BN]
The Plaintiff is represented by:
Joseph Lavi, Esq.
Vincent C. Granberry, Esq.
Danielle E. Montero, Esq.
LAVI & EBRAHIMIAN, LLP
8889 W. Olympic Blvd., Suite 200
Beverly Hills, CA 90211
Telephone: (310) 432-0000
Facsimile: (310) 432-0001
Email: jlavi@lelawfirm.com
vgranberry@lelawfirm.com
dmontero@lelawfirm.com
whteam@lelawfirm.com
A CAB LLC: Court Affirms Class Settlement Approval in Dubric Suit
-----------------------------------------------------------------
In the lawsuit entitled MICHAEL MURRAY; MICHAEL RENO; MICHAEL
SARGEANT, INDIVIDUALLY AND ON BEHALF OF A CLASS OF PERSONS
SIMILARLY SITUATED; MARCO BAKHTIARI; MICHAEL BRAUCHLE; THOMAS
COHOON; GARY GRAY; JORDAN HANSEN; ROGER KELLER; CHRIS D. NORVELL;
POLLY RHOLAS; AND GERRIE WEAVER, Appellants v. JASMINKA DUBRIC,
INDIVIDUALLY AND ON BEHALF OF THOSE SIMILARLY SITUATED; A CAB, LLC,
A NEVADA LIMITED LIABILITY COMPANY; A CAB SERIES LLC; EMPLOYEE
LEASING COMPANY, A NEVADA SERIES LIMITED LIABILITY COMPANY; AND
CREIGHTON J. NADY, AN INDIVIDUAL, Respondents, Case No. 83492
(Nev.), the Supreme Court of Nevada affirms the judgment of the
district court.
Chief Justice Ronald David "Ron" Parraguirre, writing for the
Panel, states that the matter is an appeal from a district court
order approving a class action settlement (Judge Kathleen E.
Delaney of the Eighth Judicial Distinct Court, Clark County.)
The Appellants and Respondent Jasminka Dubric are taxi drivers, who
allege that their employers, Respondents A Cab, LLC, and A Cab
Series LLC, Employing Leasing Company (collectively, the A Cab
Respondents) failed to pay them and other drivers minimum wage. The
taxi drivers filed two separate class action suits against the A
Cab Respondents: the underlying matter brought by Dubric (the
Dubric Action) and another brought by Appellants Michael Murray,
Michael Reno, and Michael Sargeant (collectively, the Murray
Intervenors) (the Murray Action).
The Murray Intervenors secured a judgment against the A Cab
Respondents in the Murray Action, see A Cab, LLC v. Murray, 137
Nev., Adv. Op. 84, 501 P.3d 961 (2021), and then intervened in the
Dubric Action, objecting to the proposed class action settlement
because of its potential impact on the judgment in the Murray
Action. The remaining Appellants are unnamed class members of both
the Murray Action and the Dubric Action, who objected to the Dubric
Settlement.
The Murray Intervenors unsuccessfully sought to recuse or
disqualify Judge Kathleen Delaney from presiding over the Dubric
Action due to alleged bias toward their counsel. After sending
notice to all potential class members, class counsel in the Dubric
Action received nine objections to the proposed class settlement
and only one member, in addition to the Murray Intervenors, opted
out. Thereafter, the district court conducted a final fairness
hearing and granted the Respondents' joint motion to approve their
proposed settlement, finding that the settlement was fair,
reasonable, and adequate and in the best interest of the class
members.
The Appellants now challenge the order granting final approval of
the Dubric Settlement, as well as the order denying the Murray
Intervenors' motion to disqualify Judge Delaney.
As a preliminary matter, the Panel first rejects the A Cab
Respondents' arguments that the Appellants lack standing to bring
this appeal, as the Appellants are potentially aggrieved by the
Dubric Settlement order in that it appears to release some of the
class claims against the A Cab Respondents for less than the amount
of the judgments obtained in the Murray Action.
Although the Murray Intervenors cannot demonstrate that they are
individually aggrieved because they were not included in the Dubric
Settlement Class, Judge Parraguirre concludes that they have
standing as class representatives to assert claims on behalf of
those Murray class action members, who may be adversely affected by
the Dubric Settlement. And this Court has previously recognized
that unnamed class members, who objected to a proposed settlement,
have standing to appeal that settlement.
Next, the Panel rejects the Appellants' challenge to the order
denying the motion to disqualify Judge Delaney. The Murray
Intervenors' motion to intervene in the Dubric Class Action was
still pending when they sought Judge Delaney's disqualification.
Therefore, the Murray Intervenors were not yet parties to the
Dubric Class Action, and thus lacked standing to move to disqualify
Judge Delaney.
As such, Judge Parraguirre concludes that the district court did
not abuse its discretion when it denied the motion to disqualify.
The Panel also rejects the Appellants' challenge to Dubric serving
as the class representative because she is a judgment debtor of the
A Cab Respondents in a related federal action. Judge Parraguirre
opines that the judgment that forms the basis of Dubric's purported
conflict of interest did not arise until after the Respondents
reached a settlement in the Dubric Action and the record does not
otherwise demonstrate that she had an injury or interest in the
outcome of the litigation that differed from the other class
members such that she could not fairly and adequately protect the
interests of the class.
Finally, while the Appellants advance several arguments contesting
the Dubric Settlement terms, they fail to point to any Nevada
caselaw or statute that would require reversal, Judge Parraguirre
holds. And although the Court declines the Appellants' invitation
to adopt the Ninth Circuit's eight-factor test for determining
whether a proposed class action settlement is fair, adequate, and
reasonable at this time, the Panel notes that the district court
here appeared to consider many of those factors and the Dubric
Settlement would likely satisfy that test if applied.
Indeed, Judge Parraguirre discerns no abuse of discretion in the
district court's decision to approve the Dubric Class Settlement.
The record demonstrates that the Respondents reached the settlement
as the result of lengthy negotiations after conducting a
significant amount of discovery and with the assistance of both a
jointly retained expert and an experienced judicial officer. And
although there were objections to the settlement, the number of
objections represented only a small fraction of the total class,
and those objectors chose not to opt out of the settlement.
Lastly, Judge Parraguirre notes that no Nevada caselaw or statute
requires the district court to make specific findings regarding the
individual objections to a proposed class settlement or its basis
for approving such a settlement as the Appellants suggest.
Based upon the foregoing, the Court affirms the judgment of the
district court.
A full-text copy of the Court's Opinion dated Aug. 11, 2022, is
available at https://tinyurl.com/6e8s59zv from Leagle.com.
AANIIIH NAKODA: Weidley Suit Removed to N.D. Alabama
----------------------------------------------------
Normajean Weidley, for herself and on behalf of a class of
similarly situated v. AANIIIH NAKODA FINANCE LLC, d/b/a BRIGHT
LENDING; BORROWWORKS, LLC; BENJAMIN E. GATZKE; and A through Z,
being those individuals and entities whose names are unknown, but
will be ascertained; and who are responsible, in their individual
and/or official capacities, for the unlawful actions alleged
herein,, Case No. 47-CV-2022-900674.00 was removed from the Circuit
Court of Madison County, Alabama, to the United States District
Court for the Northern District of Alabama on July 20, 2022, and
assigned Case No. 5:22-cv-00905-HNJ.
The State Court Action alleges that the Plaintiff and others in the
putative statewide class executed loan contracts with Defendants
that "imposed finance charges which exponentially exceeded
Alabama's legal limit" and "made by entities not licensed in
Alabama." The Plaintiff asserts that the Defendants used loan
documents which select tribal law as the governing law to be
applied to any dispute. the Plaintiff wrongly alleges that
Defendants operated a "rent-a-tribe" scheme in order to evade state
law, including the Alabama Small Loans Act ("ASLA"). Additionally,
despite the fact that Aaniih Nakoda Finance's consumer loan
agreement do not require or even offer arbitration, the Plaintiff
makes numerous allegations regarding a "mandatory arbitration
provision" and states this provision is unconscionable. These
allegations appear to have been cut-and-pasted from some other
complaint and are unconnected to the Plaintiff's Aaniiih Nakoda
Finance loan.[BN]
The Defendant is represented by:
Brandon T. White, Esq.
HOLLAND & KNIGHT LLP
701 Brickell Avenue, Suite 3300
Miami, FL 33131
Phone: (305) 374-8500
Facsimile: (305) 789-7799
Email: brandon.white@hklaw.com
AARON CHRYSLER: Trovato Suit Removed to C.D. California
-------------------------------------------------------
The case styled as Christine Trovato, an inidividual, on behalf of
herself and all others similarly situated v. Aaron Chrysler of
Norco formerly known as: Browing Dodge, Fiat Chrysler Automobiles
FCA US, LLC, Does 1-50, inclusive, Case No. CVRI2202212 was removed
from the Superior Court of California County of Riverside, to the
U.S. District Court for the Central District of California on July
19, 2022.
The District Court Clerk assigned Case No. 5:22-cv-01267-JWH-ADS to
the proceeding.
The nature of suit is stated as Other Contract for Breach of
Contract.
Aaron Chrysler of Norco -- https://www.aaroncdjr.com/ -- is a
Chrysler dealer in Norco, California.[BN]
The Plaintiff is represented by:
Daniel J. Mulligan, Esq.
JENKINS MULLIGAN AND GABRIEL LLP
4079 Governor Drive No 5015
San Diego, CA 92122
Phone: (858) 529-2372
Email: dan@jmglawoffices.com
- and -
Alexander M. Carnevale, Esq.
THOMPSON COBURN
10100 Santa Monica Boulevard Suite 500
Los Angeles, CA 90067
Phone: (310) 282-2500
Fax: (310) 282-2501
Email: acarnevale@thompsoncoburn.com
- and -
Scott H. Morgan, Esq.
Stephen A. D'Aunoy, Esq.
THOMPSON COBURN LLP
One US Bank Plaza
St. Louis, MO 63101
Phone: (314) 552-6000
Fax: (314) 552-7000
Email: smorgan@thompsoncoburn.com
sdaunoy@thompsoncoburn.com
AARON EQUIPMENT: Serrano Sues Over Illegal Collection of Biometrics
-------------------------------------------------------------------
ALBERTO SERRANO, individually and on behalf of other persons
similarly situated v. AARON EQUIPMENT COMPANY, INC., Case No. (Ill.
Cir., Dupage Cty., Aug. 2, 2022) is a class action by Alberto
Serrano to obtain statutory damages and other equitable relief
under the Illinois Biometric Information Privacy Act.
The Plaintiff and class members are subject to the unlawful
biometric scanning and storage practices of Aaron Equipment.
As past and present employees of Defendant, Plaintiff and class
members were required to provide it with their personalized
biometric identifiers and the biometric information derived
therefrom (biometric data). Specifically, the Defendant collects
and stores its employees’ fingerprints and requires all the
employees to clock-in and clock-out by scanning their fingerprints
into a fingerprint-scanning machine, the lawsuit says.
Following the capture of their employees' biometric data, Defendant
uses this data to compare the future scans of their employees’
fingerprints into a punch-clock device. The punch-clock device
scans each fingerprint and confirms that the employee punching in
to work is who they claim to be. The collection of the punch-clock
fingerprint entries is then used to confirm employees’ presence,
the lawsuit adds.
Aaron Equipment specializes in chemical, food & beverage,
pharmaceutical, plastics, cosmetic, paint and coatings, adhesive,
waste water and related processing.[BN]
The Plaintiff is represented by:
Roberto Luis Costales, Esq.
William H. Beaumont, Esq.
BEAUMONT COSTALES LLC
107 W. Van Buren, Suite 209
Chicago, IL 60605
Telephone: (773) 831-8000
E-mail: rlc@beaumontcostales.com
whb@beaumontcostales.com
ABBOTT LABORATORIES: Dodson Files Suit in S.D. Illinois
-------------------------------------------------------
A class action lawsuit has been filed against Abbott Laboratories,
et al. The case is styled as Demarco Dodson, individually, and on
behalf of his minor child "D.D.", and all others similarly situated
v. Abbott Laboratories doing business as: Abbott Nutrition, Abbott
Laboratories, Inc., Case No. 3:22-cv-01627-RJD (S.D. Ill., July 21,
2022).
The nature of suit is stated as Personal Injury: Health
Care/Pharmaceutical Personal Injury Product Liability.
Abbott Laboratories -- https://www.abbott.com/ -- is an American
multinational medical devices and health care company with
headquarters in Abbott Park, Illinois.[BN]
The Plaintiff is represented by:
Douglas R. Plymale, Esq.
DUGAN LAW FIRM
365 Canal Street, Suite 1000
New Orleans, LA 70130
Phone: (504) 648-0180
Fax: (504) 648-0181
Email: dplymale@dugan-lawfirm.com
ADAM J. RUBINSTEIN: Rivera Sues Over Unsolicited Text Messaging
---------------------------------------------------------------
Misma Rivera, individually and on behalf of all others similarly
situated v. ADAM J. RUBINSTEIN, M.D., P.A., Case No.
0:22-cv-61271-JEM (S.D. Fla., July 8, 2022), is brought pursuant to
the Telephone Consumer Protection Act (the "TCPA"), and the Florida
Telephone Solicitation Act ("FTSA") as a result of the Defendant's
engagement in unsolicited text messaging.
To promote its goods and services, the Defendant engages in
unsolicited text messaging to those who have not provided Defendant
with their prior express written consent as required by the FTSA
and in violation of the National Do Not Call Registry. The
Defendant's telephonic sales calls have caused Plaintiff and the
Class members harm, including violations of their statutory rights,
statutory damages, annoyance, nuisance, and invasion of their
privacy. Through this action, Plaintiff seeks an injunction and
statutory damages on behalf of Plaintiff and the Class members and
any other available legal or equitable remedies resulting from the
unlawful actions of Defendant, says the complaint.
The Plaintiff is the regular user of the cellular telephone number
that received the telephonic sales calls.
The Defendant is a resident of Miami-Dade County, Florida with its
business located in Aventura.[BN]
The Plaintiff is represented by:
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 East Las Olas Boulevard, Suite 1400
Ft. Lauderdale, FL 33301
Phone: 954.400.4713
Email: mhiraldo@hiraldolaw.com
- and -
Michael Eisenband, Esq.
EISENBAND LAW, P.A.
515 E. Las Olas Boulevard, Suite 120
Ft. Lauderdale, FL 33301
Phone: 954.533.4092
Email: MEisenband@Eisenbandlaw.com
ADVANCED PHARMACY: Sandusky Files Placeholder Bid for Class Status
------------------------------------------------------------------
In the class action lawsuit captioned as SANDUSKY WELLNESS CENTER,
LLC, an Ohio limited liability company, individually and as the
representative of a class of similarly-situated persons, v.
ADVANCED PHARMACY CONCEPTS, LLC, a Georgia limited liability
company, a/k/a Manifest Pharmacy, Case No. 3:22-cv-01384-JZ (N.D.
Ohio), Sandusky Wellness file a "placeholder" motion for class
certification in order to prevent against a "buy-off" attempt, a
tactic class-action defendants sometimes use to attempt to prevent
a case from proceeding to a decision on class certification by
attempting to "moot" the named plaintiff's claims by tendering the
plaintiff individual (but not classwide) relief.
In Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016), the
Supreme Court held "an unaccepted settlement offer or offer of
judgment does not moot a plaintiff's case," and "a would-be class
representative with a live claim of her own must be accorded a fair
opportunity to show that certification is warranted." The Sixth
Circuit applied Campbell-Ewald in an unreported opinion in Family
Health Chiropractic, Inc. v. MD On-Line Sols., Inc., No. 15-3508,
2016 WL 384823 (6th Cir. Feb. 2, 2016).
In Wilson v. Gordon, 822 F.3d 934, 949-50 (6th Cir. 2016), the
Sixth Circuit held that, even where "the parties did not dispute
that all eleven named plaintiffs' individual claims became moot
before the district court certified the class," the "picking-off"
exception applied and allowed the named plaintiffs with moot
individual claims to pursue class certification, which would
"relate back" to the filing of the complaint, applying Deposit
Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980).
The Sixth Circuit held this ruling was consistent with
Campbell-Ewald, 136 S. Ct. at 672, which refused to put defendants
"in the driver's seat" on class certification. The named plaintiffs
in Wilson had filed a "contemporaneous" motion for class
certification the same day as the complaint. Id. The Sixth Circuit
recognized that "the district court in Roper already had denied the
motion for class certification when the defendant sought to pick
off the named plaintiff," while the district court in Wilson ruled
on class certification after the plaintiffs' claims became moot.
Id. at 948. It held there was "no distinction" there because "[i]n
both scenarios, the defendant is on notice that the named plaintiff
wishes to proceed as a class, and the concern that the defendant
therefore might strategically seek to avoid that possibility
exists."
The Plaintiff proposes the following class definition:
"All persons who (1) on or after four years prior to the
filing of this action, (2) were sent telephone facsimile
messages of material advertising the commercial availability
or quality of any property, goods, or services by or on
behalf of Defendant, (3) from whom Defendant did not obtain
"prior express invitation or permission" to send fax
advertisements, or (4) with whom Defendant did not have an
established business relationship, and/or (5) where the fax
advertisements did not include an opt-out notice compliant
with 47 C.F.R. section 64.1200(a)(4)(iii)."
Advanced Pharmacy was founded in 1997. The company's line of
business includes providing management consulting services.
A copy of the Plaintiff's motion dated Aug. 5, 2022 is available
from PacerMonitor.com at https://bit.ly/3PQAjPb at no extra
charge.[CC]
The Plaintiff is represented by:
Ryan M. Kelly, Esq.
ANDERSON + WANCA
3701 Algonquin Road, Suite 500
Rolling Meadows, IL 60008
Telephone: (847) 368-1500
Facsimile: (847) 368-1501
E-mail: rkelly@andersonwanca.com
AFLAC INCORPORATED: Valenzuela Sues Over Illegal Wiretapping
------------------------------------------------------------
Sonya Valenzuela, individually and on behalf of all others
similarly situated v. AFLAC INCORPORATED, a Georgia corporation;
and DOES 1 through 25, inclusive, Case No. 22STCV23742 (Cal. Super.
Ct., July 22, 2022), is brought against the Defendant for its
illegal wiretapping of their electronic communications with the
Defendant's website, https://www.aflac.com.
Unbeknownst to visitors to the Website, the Defendant has secretly
deployed "keystroke monitoring" software that Defendant uses to
surreptitiously intercept, monitor, and record the communications
(including keystrokes and mouse clicks) of all visitors to its
Website. The Defendant neither informs visitors nor seeks their
express or implied consent prior to this wiretapping. The Defendant
has violated and continues to violate the California Invasion of
Privacy Act ("CIPA"), entitling the Plaintiff and Class Members to
relief pursuant thereto, says the complaint.
The Plaintiff visited Defendant's website within the past year.
The Defendant is a Georgia corporation and does business and
affects commerce within the state of California and with California
residents.[BN]
The Plaintiffs are represented by:
Scott J. Ferrell, Esq.
David W. Reid, Esq.
Victoria C. Knowles, Esq.
PACIFIC TRIAL ATTORNEYS
A Professional Corporation
4100 Newport Place Drive, Ste. 800
Newport Beach, CA 92660
Phone: (949) 706-6464
Fax: (949) 706-6469
Email: sferrell@pacifictrialattorneys.com
dreid@pacifictrialattorneys.com
vknowles@pacifictrialattorneys.com
AFNI INC: Powell Files Suit in C.D. Illinois
--------------------------------------------
A class action lawsuit has been filed against Afni, Inc. The case
is styled as Marian Caldwell Powell, individually, and on behalf of
all others similarly situated v. Afni, Inc., Case No.
1:22-cv-01247-JBM-JEH (C.D. Ill., July 25, 2022).
The nature of suit is stated as Other Contract.
Afni -- https://afni.com/ -- is a global contact center company
that is based in the US and has clients all over the world.[BN]
The Plaintiff is represented by:
Ben Barnow, Esq.
Anthony Lee Parkhill, Esq.
Riley W. Prince, Esq.
BARNOW AND ASSOCIATES PC
205 West Randolph Street, Suite 1630
Chicago, IL 60606
Phone: (312) 621-2000
Fax: (312) 641-5504
Email: b.barnow@barnowlaw.com
aparkhill@barnowlaw.com
The Defendant is represented by:
James J. Sipchen, Esq.
PRETZEL & STOUFFER CHARTERED
One S Wacker Dr., Ste 2500
Chicago, IL 60606-4673
Phone: (312) 346-1973
Email: jsipchen@pretzel-stouffer.com
ALLSTATE FIRE: Seeks Oral Argument in Keister Class Status Bid
--------------------------------------------------------------
In the class action lawsuit captioned as CHONG KEISTER and RUSSELL
KEISTER, on behalf of themselves and all others similarly situated
v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Case No.
4:20-cv-00953-FJG (W.D. Mo.), Allstate asks the Court to enter an
order oral argument and set Plaintiff's Motion for hearing.
On May 20, 2022, the Plaintiffs Chong and Russell Keister filed
their Motion for Class Certification, and Suggestions in Support,
seeking to certify two classes of policyholders, one requesting
injunctive and declaratory relief and the other seeking damages.
The Plaintiffs' claims arise from subrogation that defendant
Allstate allegedly sought after making payments under the
plaintiffs' automobile insurance policy for an accident that
occurred out of state.
Allstate filed its Suggestions in Opposition to Plaintiffs' Motion,
on June 21, 2022, arguing that the proposed classes do not meet the
requirements of Federal Rule of Civil Procedure 23, including due
to the myriad of individualized inquiries that bear on their
claims, including various states' laws, differing claims processes,
and the personal attributes of the policyholders and circumstances
surrounding their policies, accidents, and claims.
Allstate operates as an insurance firm.
A copy of the Defendant's motion dated Aug. 5, 2022 is available
from PacerMonitor.com at https://bit.ly/3PQfvHI at no extra
charge.[CC]
The Defendant is represented by:
Dawn B. Williams, Esq.
FAEGRE DRINKER BIDDLE & REATH LLP
1500 K Street NW, Suite 1100
Washington, DC 20005
Telephone: (202) 230-5226
Facsimile: (202) 842-8465
E-mail: dawn.williams@faegredrinker.com
- and -
Michael J. Carroll, Esq.
801 Grand Avenue, 33rd Floor
Des Moines, IO 50309
Telephone: (515) 447-4737
Facsimile: (515) 248-9010
E-mail: michael.carroll@faegredrinker.com
ALLSTATE PROPERTY: Limited Scheduling Order Entered in Cummings
---------------------------------------------------------------
In the class action lawsuit captioned as PAGGIWA CUMMINGS v.
ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Case No.
3:22-cv-00247-JWD-EWD (M.D. La.), the Hon. Judge Erin Wilder-Doomes
entered a limited scheduling order as follows:
1. The deadline to join other parties or to file a motion for
leave to amend the pleadings is September 30, 2022.
2. Discovery must be completed as follows:
a. Exchanging initial disclosures required by F.R.C.P.
26(a)(1): August 12, 2022.
b. Filing all discovery motions and completing all
discovery except experts: June 14, 2023.
c. Disclosure of identities and resumes of experts.
Experts relevant to class certification are governed by
this order; any further experts will be addressed after
a ruling on class certification:
-- Plaintiff(s): November 21, 2022
-- Defendant(s): December 21, 2022
d. Expert reports must be submitted to opposing parties as
follows:
-- Plaintiff(s): February 13, 2023
-- Defendant(s): March 15, 2023
-- Rebuttal experts: April 14, 2023
e. Discovery from experts must be completed by May 17,
2023.
3. Filing of Motion for Class Certification: June 21, 2023
Response to Motion for Class Certification: July 23, 2023
Reply in Support of Motion for Class Certification: August
21, 2023
4. Deadline to file dispositive motions and Daubert motions:
September 27, 2023
No later than 14 days after a ruling on the Motion for
Class Certification, the parties shall file a motion for a
scheduling conference to set the remaining case-related
deadlines.
A copy of the Court's order dated Aug. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3PMKYuu at no extra charge.[CC]
AMAZON.COM INC: Herbs and Spices Contain Heavy Metals, Pettis Says
------------------------------------------------------------------
SHERRI PETTIS, individually and on behalf of all others similarly
situated, Plaintiff v. AMAZON.COM, INC., and WHOLE FOODS MARKET,
INC., Defendants, Case No. 2:22-cv-01115 (W.D. Wash., Aug. 10,
2022) seeks to recover damages and injunctive relief for
Defendants' continuing failure to disclose to consumers that
certain Whole Foods herbs and spices, sold under its trade name of
"365 By Whole Foods Market," including Defendants' Basil, Cumin,
and Ground Ginger, contain (or risk containing) heavy metals like
lead, arsenic, and cadmium.
According to the complaint, consumers who purchase the products are
injured by Defendants' acts and omissions concerning the presence
(or risk) of heavy metals. No reasonable consumer would know, or
have reason to know, that the products contain (or risk containing)
such heavy metals. Worse, as companies across the industry have
adopted methods to limit heavy metals in their herbs and spices,
Defendants have stood idly by with a reckless disregard for their
consumers' health and well‐being, alleges the suit.
Plaintiff Pettis began purchasing the 365 by Whole Foods Market
Ground Ginger in 2018 from a Whole Foods retail location in
Pittsburgh, Pennsylvania.
Amazon.com, Inc. is an American multinational technology company
which focuses on e-commerce, cloud computing, digital streaming,
and artificial intelligence.
Whole Foods Market, Inc. manufactures, markets, and sells herbs and
spices under the Whole Foods 365 brand name throughout the United
States.[BN]
The Plaintiff is represented by:
Beth E. Terrell, Esq.
Jennifer Rust Murray, Esq.
TERRELL MARSHALL LAW GROUP PLLC
936 North 34th Street, Suite 300
Seattle, WA 98103
Telephone: (206) 816‐6603
Facsimile: (206) 319‐5450
E-mail: bterrell@terrellmarshall.com
jmurray@terrellmarshall.com
- and -
Jonathan Shub, Esq.
Kevin Laukaitis, Esq.
SHUB LAW FIRM LLC
134 Kings Highway E., 2nd Floor
Haddonfield, NJ 08033
Telephone: (856) 772‐7200
Facsimile: (856) 210‐9088
E-mail: jshub@shublawyers.com
klaukaitis@shublawyers.com
- and -
Gary E. Mason, Esq.
Danielle Perry, Esq.
MASON LLP
5101 Wisconsin Avenue NW, Suite 305
Washington, DC 20016
Telephone: (202) 640‐1168
Facsimile: (202) 429‐2294
Email: gmason@masonllp.com
dperry@masonllp.com
- and -
L. Timothy Fisher, Esq.
Sean L. Litteral, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd, Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300‐4455
Facsimile: (925) 407‐2700
E-mail: ltfisher@bursor.com
slliteral@bursor.com
- and -
Lori G. Feldman, Esq.
GEORGE GESTEN MCDONALD, PLLC
102 Half Moon Bay Drive
Croton‐on‐Hudson, NY 10520
Telephone: (833) 346‐3587
Facsimile: (888) 421‐4173
E-mail: lfeldman@4‐justice.com
- and -
David J. George, Esq.
Brittany L. Brown, Esq.
GEORGE GESTEN MCDONALD, PLLC
9897 Lake Worth Road, Suite #302
Lake Worth, FL 33467
Telephone: (561) 232‐6002
Facsimile: (888) 421‐4173
E-mail: dgeorge@4‐justice.com
bbrown@4‐justice.com
- and -
Janine L. Pollack, Esq.
CALCATERRA POLLACK LLP
1140 Avenue of the Americas, 9th Floor
New York, NY 10036
Telephone: (212) 899‐1765
Facsimile: (332) 206‐2073
E-mail: jpollack@calcaterrapollack.com
AMERICAN BEHAVIORAL: Lomedico Files Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against American Behavioral
Research Institute LLC. The case is styled as Aimee Lomedico, on
behalf of herself and all others similarly situated v. American
Behavioral Research Institute LLC doing business as: Relaxium, Case
No. 3:22-cv-04621-ZNQ-RLS (S.D.N.Y., July 18, 2022).
The nature of suit is stated as Other Fraud for Deceptive Trade
Practices.
American Behavioral Research Institute LLC doing business as
Relaxium -- https://www.relaxium.com/ -- is an all-natural sleep
aid, developed by a clinical neurologist to help achieve best full
night's rest.[BN]
The Plaintiff is represented by:
James Robert Denlea, Esq.
Jeffrey I. Carton, Esq.
Steven Russell Schoenfeld, Esq.
Stanislav Sharovskiy, Esq.
DENLEA & CARTON LLP
2 Westchester Park Dr, Suite 410
White Plains, NY 10604
Phone: (914) 331-0100
Fax: (914) 331-0105
Email: jdenlea@denleacarton.com
jcarton@denleacarton.com
sschoenfeld@denleacarton.com
ssharovskiy@denleacarton.com
AMERICAN HONDA: Class Cert Hearing Continued Until March 2, 2023
----------------------------------------------------------------
In the class action lawsuit captioned as DAVID MACTAVISH, JOHNSON
QU, MARGARET WEBB, PAUL TWOMEY, ELVIN GOMEZ, GERALD MORLOCK, and
LARRY WALL, individually and on behalf of all others similarly
situated, v. AMERICAN HONDA MOTOR CO., INC., Case No.
2:21-cv-04289-GW-JEM (C.D. Cal.), the Hon. Judge George H. Wu
entered an order granting stipulation to continue hearing on motion
for class certification and related deadlines:
1. the deadlines established under ECF No. 42, requiring
Plaintiffs' reply brief in support of their motion for
class certification to be filed by September 12, 2022 and
setting a hearing on the motion for class certification
for September 29, 2022, are vacated; and
2. the hearing on the motion for class certification is
continued until March 2, 2023, with Plaintiffs' reply
brief in support of their motion for class certification
to be filed no later than February 15, 2023 at 8:30 a.m.
American Honda develops and manufactures automobiles.
A copy of the Court's order dated Aug. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3dVnGoI at no extra charge.[CC]
AMERICAN NATIONAL: Griggs Alleges Illegal Overdraft Fee Collection
------------------------------------------------------------------
BRIAN GRIGGS, on behalf of himself and all others similarly
situated v. AMERICAN NATIONAL BANK AND TRUST COMPANY, Case No.
7:22-cv-00450-MFU (W.D. Va. Aug. 4, 2022) is a class action on
behalf of the Plaintiff and a class of similarly situated
individuals against the Defendant over the improper assessment and
collection of $36 Overdraft (OD) Fees on debit card transactions
authorized on sufficient funds.
According to the complaint, besides being deceptive, this practice
breaches the Defendant's standardized adhesion contract. The
practice also breaches Defendant's duty of good faith and fair
dealing, and unjustly enriches Defendant to the detriment of its
customers.
Through the imposition of these fees, Defendant has made
substantial revenue to the tune of millions of dollars, seeking to
turn its customers' financial struggles into revenue. The
Plaintiff, like thousands of others, has fallen victim to
Defendant's fee revenue maximization schemes, the lawsuit says.
The Plaintiff is a citizen of Ripplemead, Virginia and has
maintained a checking account with Defendant at all times relevant
hereto.
The Defendant is a bank with more than $3 billion in assets and its
principal place of business in Danville, Virginia. It does business
in North Carolina and Virginia.[BN]
The Plaintiff is represented by:
Devon J. Munro, Esq.
MUNRO LAW PC
PO Box 7205
Roanoke, VA 24019
Telephone: (540) 900-4636
E-mail: dmunro@trialsva.com
- and -
J. Gerard Stranch, IV, Esq.
BRANSTETTER, STRANCH & JENNINGS, PLLC
223 Rosa L. Parks Avenue, Suite 200
Nashville, TN 37203
Telephone: (615) 254-8801
E-mail: gerards@bsjfirm.com
- and -
Lynn A. Toops, Esq.
COHEN & MALAD, LLP
One Indiana Square, Suite 1400
Indianapolis, IN 46204
Telephone: (317) 636-6481
E-mail: ltoops@cohenandmalad.com
- and -
Christopher D. Jennings, Esq.
JOHNSON FIRM
610 President Clinton Avenue, Suite 300
Little Rock, AR 72201
Telephone: (501) 372-1300
E-mail: chris@yourattorney.com
ANTHEM GLENVIEW: Misclassifies Dining Services Directors, Suit Says
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The case, ROBERT BANASZAK, on behalf of himself and all other
Plaintiffs similarly situated, known and unknown, Plaintiff v.
ANTHEM GLENVIEW MANAGEMENT, LLC d/b/a EMERALD PLACE AND ANTHEM
MEMORY GROUP, Defendants, Case No. 1:22-cv-04327 (N.D. Ill., August
16, 2022) arises from the Defendant's alleged illegal employment
practice that violated the Fair Labor Standards Act and the
Illinois Minimum Wage Law.
The Plaintiff has worked for the Defendant from approximately June
2020 to April 2022. He was initially employed by the Defendant as a
non-exempt Cook and later promoted to a salaried role as Dining
Services Director (DSD).
According to the complaint, the Plaintiff was improperly classified
by the Defendant as salary-exempt employee when he was offered the
job of DSD. Despite working over 40 hours in many work weeks, the
Defendant denied him of overtime premiums at the applicable
overtime rate in accordance with the FLSA. Accordingly, the
Defendant also improperly classified all other similarly situated
DSDs as salary-exempt employees and were denied of their lawfully
earned overtime compensation at the rate of one and one-half times
their regular rate of pay for all hours worked in excess of 40 per
workweek, says the suit.
The Plaintiff brings this complaint on behalf of herself and all
other similarly situated DSDs seeking to recover back pay equal to
the amount of all unpaid compensation; prejudgment interest with
respect to the amount of unpaid overtime compensation; reasonable
attorneys' fees and court costs incurred; and the relief as the
Court deems appropriate under the circumstances.
Anthem Glenview Management, LLC is a full service nursing and
assisted living facility located at 879 Chestnut Ave. in Glenview,
Illinois. [BN]
The Plaintiff is represented by:
Samuel D. Engelson, Esq.
John William Billhorn, Esq.
BILLHORN LAW FIRM
53 West Jackson Blvd., Suite 1137
Chicago, IL 60604
Tel: (312) 853-1450
ASSURANCE IQ: Court Extends Deadline to File Class Cert Bid
-----------------------------------------------------------
In the class action lawsuit captioned as JOSPEH ROGERS, DEBRA JONES
STEVENSON, FRANK GARRIDO, TAYLOR ARMIGER, and GWENDOLYN THOMPSON,
on behalf of themselves and all others similarly situated, v.
ASSURANCE IQ, LLC and BOOMSOURCING LLC, Case No. 2:21-cv-00823-TL
(W.D. Wash.), the Hon. Judge Tana Lin entered a Minute Order as
follows:
1. In light of the partially assented motion to extend
deadlines, the Court hereby extends the deadlines for
completion of fact and expert discovery and for the
Plaintiffs to file a motion for class certification, to be
reset after the Court rules on the pending motions to
dismiss.
2. The parties shall meet and confer and propose new
deadlines within 7 days of the Court’s Order on the
motions to dismiss.
Assurance IQ is a digital insurance and financial company.
A copy of the Court's order dated Aug. 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3QThImO at no extra charge.[CC]
AYA HEALTHCARE: Faces O'Dell Suit Over "Bait-And-Switch" Practices
------------------------------------------------------------------
LAURA O'DELL, HANNAH BAILEY, and HOLLY ZIMMERMAN, individually and
on behalf of all others similarly situated v. AYA HEALTHCARE, INC.,
Case No. 3:22-cv-01151-BEN-BLM (S.D. Cal., Aug. 4, 2022) alleges
that Aya's "bait-and-switch" practices are so widespread that it
appears to be a core tenet of the company's business model.
According to the complaint, hundreds if not thousands of nurses
employed by Aya across the country have reported experiencing
mid-contract pay reductions after starting an assignment with Aya,
with many reporting that Aya reduced their pay multiple times
within the same assignment orslashed their pay by 50% or more than
what was originally promised. Many are afraid to speak out against
the practice because they believe Aya will blacklist them from
Aya's growing network of healthcare providers where it serves as
the primary staffing agency, says the suit.
Allegedly, Aya is knowingly engaging in these "bait-and-switch"
practices to 25 maintain the significant profit margins it had
become accustomed to during the COVID-19 pandemic and to gain a
competitive advantage that will allow it to become the exclusive
staffing agency for more hospitals and healthcare providers. Aya is
offering contracts to travel nurses with a fixed-term assignment at
an agreed-upon pay rate. After the nurse accepts the position and
starts the assignment, Aya makes a "take-it-or-leave-it" demand to
accept less pay or be terminated. Of course, most nurses have no
choice but continue working the assignment at the lower rate
because they have no reasonable alternatives for comparable
employment: they have already incurred travel expenses, secured
short-term housing, and uprooted their lives to accept the
assignment, asserts the suit.
The lawsuit seeks recovery for the pay losses Plaintiffs and other
travelers experienced as the result of Aya's predatory business
practices. Additionally, Aya is underpaying its travel employees
for overtime hours worked. By law, employers must pay their
employees one-and-a-half times their "regular rate" for all hours
worked over forty in a workweek. But in determining this "regular
rate", Aya has only included its employees' direct hourly cash wage
among other items, and has excluded, in violation of the law, other
parts of its employees' compensation packages, thereby resulting in
an artificially low rate of pay for overtime hours worked, the suit
further alleges.
On its company website, Aya holds itself out as "an employer our
team members are proud to work for" and declares that "we strive to
provide the best service in the industry to our clinicians and
clients." Aya's CEO has also stated that he "believes that treating
clinicians well directly and positively impacts patient care.[BN]
The Plaintiffs are represented by:
Jason S. Hartley, Esq.
Jason M. Lindner, Esq.
HARTLEY LLP
101 West Broadway, Suite 820
San Diego, CA 92101
Telephone: (619) 400-5822
Facsimile: (619) 400-5832
E-mail: hartley@hartleyllp.com
lindner@hartleyllp.com
- and -
George A. Hanson, Esq.
J. Austin Moore, Esq.
K. Ross Merrill, Esq.
STUEVE SIEGEL HANSON LLP
460 Nichols Road, Suite 200
Kansas City, MO 64112
Telephone: 816-714-7100
E-mail: hanson@stuevesiegel.com
moore@stuevesiegel.com
merrill@stuevesiegel.com
BANK OF AMERICA: District of Maryland Tosses Mohamed's EFTA Claim
-----------------------------------------------------------------
In the lawsuit entitled YAGOUB M. MOHAMED, Individually and on
behalf of all others similarly situated v. BANK OF AMERICA, N.A.,
et al., Case No. CCB-21-1283 (D. Md.), Judge Catherine C. Blake of
the U.S. District Court for the District of Maryland grants Bank of
America's motion to dismiss as to Count One, which is for violation
of the Electronic Fund Transfer Act.
Plaintiff Mohamed was eligible for unemployment benefits during the
COVID-19 pandemic, but he lost access to nearly $15,000 in those
benefits when an unauthorized user fraudulently used the Bank of
America prepaid debit card that was meant to deliver his funds. He
brought claims against the Bank for violation of the federal
Electronic Fund Transfer Act, violations of state privacy and
consumer protection laws, and common-law breach of contract and
negligence. He brought those claims individually and on behalf of a
putative class of Maryland residents, who were issued Bank of
America prepaid debit cards for unemployment benefits.
Bank of America filed a motion to dismiss, which Mohamed opposed
and Bank of America supported in its reply. The issues have been
briefed, and oral argument was held June 9, 2022.
Mohamed's Experience
Mohamed was a mechanic and small business owner, who suddenly lost
his business (and significant income) in July 2020 due to the
COVID-19 pandemic. That month, he applied for unemployment
benefits. While self-employed individuals might not normally have
been eligible for state unemployment insurance, federal
supplemental programs like Pandemic Unemployment Assistance (PUA)
benefits also were administered by the Maryland state Division of
Unemployment Insurance (DUI), an office of the state Department of
Labor.
Though Mohamed had the option to receive his disbursements via
paper check, he signed up to receive his benefits on a Bank of
America DUI Debit Card that was to be mailed to his Baltimore home
address. The Complaint is silent as to Mohamed's decision calculus
at the time.
Between July and October 2020, Mohamed was entitled to receive
$14,644 in benefits, but he had still not received his DUI Debit
Card by the end of November 2020. He had called the DUI office
regularly during those months, but DUI representatives advised him
that he might experience a 45- or 90-day delay due to the high
applicant volume. When he called in late November 2020, the
representative advised that Mohamed should have already received
the card, which would have been mailed by Bank of America, North
America (BANA). He then called BANA, whose representative told him
that the Bank had already mailed his card and that BANA would mail
a new card.
On Dec. 5, 2020, Mohamed received the DUI Debit Card. But when he
tried to activate the card, the activation code did not work. He
called the customer service line and learned the card had a $0
balance. He waited a few days to give the Bank an opportunity to
finish setup, and he called back on Dec. 7, 2020; the Bank's
representative told him that although the account had received the
full $14,644 disbursement, the funds from his account had already
been spent. A Claims Department representative read aloud each
transaction to Mohamed, who confirmed that he had not made or
authorized any of them. Between August 20 and October 1 of that
year, an unauthorized user had bought goods and made withdrawals in
a wide range of locations, from Towson, Maryland, to Hollywood,
California. None of the transactions were familiar, nor did Mohamed
know who had made them.
After receiving a claim number from the Bank, Mohamed filed a
police report and provided that information to BANA's Claims
Department as requested. The Claims Department told him he would
receive a letter from BANA within 45 days. From late December into
January, Mohamed called the Bank weekly and then daily to inquire
about his claim; representatives told him to call back, or he
received messages stating the office was too busy to accept his
call.
Without any financial resources, Mohamed maxed out his business and
personal credit cards. He incurred late fees, sending his credit
score from 750 to 500, and he fell behind on his monthly payments.
He struggled with depression, sleeplessness, and stress-induced
vomiting. On Dec. 27, he experienced a panic attack exacerbated by
exhaustion and dehydration, requiring an urgent care visit.
On Jan. 5, 2021, Mohamed received a Freeze Letter from BANA, a
letter BANA sent to Maryland DUI recipients, who had filed fraud
claims. The letter observed that BANA had determined there might be
unauthorized activities involved with his card, so his account had
been frozen. When he logged into his account, he saw a new
identification verification requirement, which he satisfied. About
a month later, on Feb. 3, the Bank emailed him to notify him of a
$1,050 deposit into his account. While his account had been frozen,
the Bank had stopped processing his fraud claim. Mohamed and other
similarly affected unemployment insurance claimants, who
experienced fraud received confusing, conflicting messaging from
the Bank and DUI about who was responsible for account freezes.
Continued calls to the Bank through the rest of February yielded
little meaningful assistance.
On March 3, he received an Update Letter stating that the freeze
had been lifted and his card was active once again. Again, he
received mixed messages about his fraud claim and whether it
remained active or was eligible for reconsideration.
When Mohamed filed the lawsuit in late May of 2021, BANA had not
given him either a provisional or permanent credit for his $14,644
in lost unemployment funds, though he had received notice from the
State requiring him to pay taxes on the full amount. On June 25,
2021, the Bank informed Mohamed that it would credit him the full
amount. The Bank filed its motion to dismiss on Aug. 2, 2021.
Bank of America and the
Maryland Division of Unemployment Insurance
Well before the pandemic, Bank of America contracted with DUI to
administer prepaid debit cards for electronic payment of
unemployment insurance benefits. The 2013 Request for Proposal
stated that it sought a disbursement solution to "ensure
cardholders receive the UI benefits to which they are entitled,
efficiently, timely, accurately, and securely." The RFP required
the contractor to have in place reasonable security procedures and
to make sure information about cardholders and their accounts is
secured to ensure its confidentiality. It also included provisions
that DOL would not indemnify the Contractor (eventually, the Bank)
for any claims or losses arising out of the Contract and requiring
that the Contractor indemnify and hold harmless DOL. In 2013, Bank
of America accepted the contract with DUI, and Mohamed incorporates
that state contract into the complaint by reference. The RFP and
Contract also required information about fraud detection and
prevention services.
Bank of America also published a separate webpage tailored to
Maryland UI debit cardholders. Cardholders were subject to a Bank
of America Cardholder Agreement that contained several relevant
provisions.
First, it contained BANA's "Zero Liability" Policy for Unauthorized
Transactions, a policy that limits a cardholder's liability for
unauthorized transactions to the amount of the transaction, so long
as the cardholder notifies BANA within a reasonable time. The
policy specifies that even if the claim does not meet the Zero
Liability conditions, the cardholder still retains their consumer
rights under federal law.
That federal law is the subject of the second relevant provision.
The Zero Liability policy refers to Regulation E, a federal
regulation that implements the Electronic Fund Transfer Act and is
administered by the Consumer Finance Protection Bureau. This law
and its regulation concern dispute resolution for certain accounts.
The Account Agreement outlined Bank of America's dispute resolution
services: BANA would determine whether there was an error within 10
days and correct it promptly. If they need more time, however, they
could take up to 45 days to investigate, in which case they would
provisionally credit the disputed amount within 10 days so the
Cardholder would have the money during the investigation. BANA
would reveal the results within three days of completing the
investigation.
The DUI announced in 2021 that it would move away from Bank of
America prepaid debit cards in favor of a new contract for direct
deposit through Wells Fargo.
Card Technologies
The nature of the Bank of America debit cards is particularly
noteworthy here, Judge Blake notes. Mohamed's card -- like all
other UI debit cardholders' but unlike the Bank's non-UI debit
cardholders' -- featured a magnetic stripe and no EMV chip. EMV
chips are an anti-fraud technology that have become more common
over time as the industry standard for card security. Magnetic
stripes encode user information, like the cardholder's name, card
number, and card expiration date, but magnetic stripes are highly
susceptible to fraud. While EMV chip cards also have a magnetic
stripe, their stripes are two-way and are encoded in a more
sophisticated fashion. Bank of America's website assures
cardholders of their cards' security.
The Class Action
Mohamed was not the only Maryland unemployment claimant to
experience fraud. In July 2020, the DOL uncovered a criminal
enterprise involving 47,500 fraudulent employment claims using
identity theft totaling over $501 million, where many claimants
believe their debit cards were cloned. He brings his suit
individually and as a proposed class action, seeking damages on
behalf of a class defined as follows:
All Maryland Residents who were issued or who used a Bank of
America debit card for the purpose of accessing DUI benefits
deposited into a Bank of America account, at any time within
three years prior to the filing of this complaint through
the present (Class Period).
Violations of EFTA (Count I)
Mohamed alleges that the Bank violated the Electric Fund Transfer
Act, and this claim is the only federal claim in his lawsuit. The
Electronic Fund Transfer Act (EFTA) is a consumer' protection
statute that regulates the terms of certain transactions.
BANA concedes that if Regulation E applies to the case; then
Mohamed has a claim at least for statutory penalties, but according
to BANA, Regulation E does not apply, primarily because Mohamed
received pandemic unemployment assistance rather than traditional
unemployment insurance. BANA argues that the EFTA's and Regulation
E's definition of a covered "account" excludes various types of
prepaid accounts, including those established by a bank and loaded
with government disaster funds.
BANA's argument hinges on step two, which excludes certain accounts
from the definition of "prepaid account" under 12 C.F.R. Section
1005.2(b)(3)(ii)(B) -- specifically, accounts both established
through a third party and loaded only with qualified disaster
relief payments.
The parties debate whether Mohamed's PUA account is a "prepaid
account" covered under EFTA or whether it is carved out of the
definition of "prepaid account" according to step two -- that is,
Regulation E's exclusion of any "account that is directly or
indirectly established through a third party and loaded only with
qualified disaster relief payments." If the PUA payments are
qualified disaster relief payments, then Mohamed's account is
carved out of the definition of "prepaid account" under EFTA, and
he cannot bring his federal EFTA claim.
Mr. Mohamed argues that, while the pandemic was in March 2020
declared by President Trump a disaster warranting federal
assistance under the Stafford Act, PUA payments were actually
authorized by Congress in the CARES Act for the "COVID-19 public
health emergency" rather than a disaster. Specifically, it was tied
initially to the public health emergency declared by the Secretary
of Health and Human Services in January 2020 rather than the March
2020 disaster declaration by President Trump.
According to Mohamed, the CARES Act showed a Democratic House and
Senate explicitly acting separately from President Trump and not
tying their measures to his prospective declaration.
The Internal Revenue Code, however, favors BANA's argument, Judge
Blake says. Even if the CARES Act was tied initially to the January
2020 HHS declaration, the CARES Act nonetheless referred to the
pandemic itself, which was subsequently declared a disaster
warranting Stafford Act assistance.
The pandemic is, therefore, a "federally qualified disaster" under
26 U.S.C. Section 165(i)(5)(A) and a "qualified disaster" under IRC
Section 139(c)(2), meaning PUA payments were "qualified disaster
relief payments" under IRC Section 139(b)(4), Judge Blake opines.
The payments, therefore, satisfy the CFPB's official interpretation
of Regulation E Section 1005.2(b)(3)(ii)(B) and are excluded from
the definition of "prepaid account," therefore, falling outside of
EFTA's definition of covered "accounts."
Count I must, therefore, be dismissed, Judge Blake holds.
State Law Claims
To the extent Mohamed alleges BANA has violated state law in Counts
II-VI, the Court declines to exercise supplemental jurisdiction and
will dismiss the state claims without prejudice.
For the reasons discussed, Bank of America, N.A.'s motion to
dismiss will be granted. A separate Order follows.
A full-text copy of the Court's Memorandum dated Aug. 11, 2022, is
available at https://tinyurl.com/2kxzpm2m from Leagle.com.
BLANTON & SONS: Russo Seeks Unpaid Overtime Under FLSA
------------------------------------------------------
Anthony Russo On Behalf of Himself and All Others Similarly
Situated v. Blanton & Sons, Inc., Brandon Blanton, individually,
Case No. 2:22-cv-02504-BHH (D.S.C., Aug. 2, 2022) is a class action
for violations of unpaid overtime provisions of the Fair Labor
Standards Act and the South Carolina Payment of Wages Act.
The Plaintiff brings this action, individually and as an opt-in
collective action pursuant to 29 U.S.C. section 216(b), on behalf
of a class of all employees who worked in excess of 40 hours in any
given work week, but who did not receive overtime compensation for
such hours within the last three years.
Blanton is a full-service HVAC company that provides installation,
maintenance and repair of heating and air conditioning systems.
Blanton also provides a range of other services such as plumbing,
indoor air-quality products and duct system repairs.[BN]
The Plaintiff is represented by:
Marybeth Mullaney, Esq.
652 Rutledge Ave Suite 1A
Charleston, SC 29403
Telephone: (843) 588-5587
E-mail: marybeth@mullaneylaw.net
BLENDTEC INC: Isaac Sues Over Blenders' Blade Assembly Defect
-------------------------------------------------------------
SHELLY ISAAC, ALEXANDER ZAMUDIO and STEVE OBERLY, individually and
on behalf of all others similarly situated v. BLENDTEC, INC., Case
No. 1:22-cv-11254-RGS (D. Mass, Aug. 4, 2022) arises from the
Defendant's representations of its blenders which contain a uniform
design and/or manufacturing defect in the blade assembly of the
jars that causes leakage.
According to the complaint, the inadequate and incompatible
materials used in the Jar's Blade Assembly lead to friction and
accelerated deterioration of the bearings, seals, and rubber
("Blade Assembly Defect"). The Defect results in leakage, smoking,
vibrating, and/or loud grinding sounds while in use. The ultimate
result of the Defect is premature total failure of the Jar's Blade
Assembly, rendering the Blender useless, says the suit.
As the Defect degrades the Blade Assembly, small pieces of rubber,
silicone, and/or plastic contained within the Blade Assembly's
components may also migrate to the Jar. This is a safety hazard to
purchasers, who are at risk of unknowingly ingesting the
deteriorated rubber, silicone, and/or plastic through food and
beverages. Each of the Jars suffer from the uniform Defect, which,
unknown to consumers but known to Blendtec, exists at the point of
purchase. The Blenders are significantly more expensive than
competing residential blenders. Given the price point of the
Products and the Products representations, Plaintiffs and Class
Members expected them to last at least 10-years. As the Blender
base cannot operate without a Blendtec Jar, the Blenders are
rendered completely unusable by the Blade Assembly Defect in the
Jar. Blendtec has long known about the Defect, but has failed to
disclose the Defect to consumers, instead waiting for consumers to
complain that the Blenders leak, degrade, or otherwise fail to
operate as a reasonable consumer would expect. When consumers do
complain about the Defect, Blendtec replaces the Jar with an
equally defective Jar, the suit asserts.
The Plaintiffs and Class Members who have experienced the alleged
defect have repeatedly put Blendtec on notice of the Defect, but
Blendtec has nevertheless continued to sell its defective Blenders
to consumers.
Blendtec designs and manufactures high-speed commercial and
residential blenders which are assembled at the company's Orem,
Utah facility.[BN]
The Plaintiffs are represented by:
Alex R. Straus, Esq.
Harper T. Segui, Esq.
Erin J. Ruben, Esq.
Rachel Soffin, Esq.
MILBERG COLEMAN BRYSON
PHILLIPS GROSSMAN PLLC
280 South Beverly Drive, Penthouse
Los Angeles, CA 90212
Telephone: (914) 471-1894
Facsimile: (919) 600-5035
E-mail: astraus@milberg.com
hsegui@milberg.com
eruben@milberg.com
rsoffin@milberg.com
BOB'S DISCOUNT: Court Dismisses Without Prejudice Glover's Claims
-----------------------------------------------------------------
In the case, RENELL GLOVER, ET AL., Plaintiffs v. BOB'S DISCOUNT
FURNITURE, LLC, ET AL., Defendants, Case No. 20-cv-10924 (JGK)
(S.D.N.Y.), Judge John G. Koeltl of the U.S. District Court for the
Southern District of New York issued a Memorandum Opinion and
Order:
a. granting the Defendants' motions to compel arbitration of
Plaintiff Claudia Musella's claims;
b. denying as moot their motions to dismiss Musella's claims;
and
c. granting their motions to dismiss Glover's claims without
prejudice to Glover's ability to file an amended complaint.
Plaintiffs Renell Glover and Claudia Musella brought the putative
class action against Bob's and Guardian Protection Products, Inc.,
alleging breach of contract and related non-contract claims. The
claims arise out of their purchase of furniture and of a protection
plan for that furniture. The Defendants now move to dismiss the
claims by Glover and to compel arbitration of or, in the
alternative, to dismiss the claims by Musella.
Bob's is a discount furniture store with several branches in New
York. It offers a protection plan for its furniture called "Goof
Proof." The plans are administered by Guardian. The complaint
alleges that Guardian and Bob's worked in "partnership," that
Guardian "collaborates with Bob's in drafting the language and
marketing material for the Goof Proof plans," and that Guardian
abetted Bob's misconduct.
In February 2017, Glover purchased a sofa and a Goof Proof plan
from a Bob's store. In September 2017, Musella purchased a recliner
and a Goof Proof plan from a Bob's store. Upon completing their
purchases, each plaintiff was given a receipt. Both receipts also
included a signature line, which neither Plaintiff signed. The
following page included several terms. Both receipts included a
one-year warranty against factory defects. Glover's receipt further
noted that the "complete Goof Proof Plan Terms and Conditions could
be accessed at the" Bob's website. Both receipts also included a
section headed "Resolution of Disputes." The section went on to
provide some further information on what arbitration entailed.
In November 2019, the frame of Glover's sofa "accidentally broke."
Glover submitted a claim to Guardian. The Guardian representative
asked that Glover submit further information, which Glover did.
Guardian then denied Glover's claim.
In December 2019, Musella noticed small tears in -- the fabric of
her recliner. Musella contacted Bob's, which declined to compensate
Musella, informing her that the factory-defect warranty had
expired, and that the Goof Proof plan covered "one time damages
that have resulted from a single incident."
Plaintiffs Musella and Glover brought the putative class action,
alleging breach of contract and related non-contract claims. Now
before the Court are the Defendants' motions to dismiss the claims
by Glover and to compel arbitration of or, in the alternative, to
dismiss the claims by Musella.
First, the back of Musella's receipt includes an arbitration
provision. However, Musella argues that there is no agreement to
arbitrate because Musella did not sign the receipt.
This argument is without merit, Judge Koeltl opines. Musella's
failure to repudiate the contract constitutes ratification. She had
adequate notice of the arbitration clause. She was amply made aware
that the reverse side contained terms that might affect Musella's
rights, and one of the bolded, underlined headings on the reverse
side was Resolution of Disputes," which referred to the arbitration
procedure. Because Musella had adequate notice of the arbitration
clause, Musella's failure to repudiate the contract constitutes
acceptance of the arbitration clause. Moreover, Musella further
ratified the contract by bringing a claim for breach of the
contract. For these reasons, Musella ratified the arbitration
clause, and is bound by it. Bob's and Guardian have therefore met
their initial burden of showing that there was an agreement to
arbitrate.
Ms. Musella appears to argue in the Complaint that the arbitration
provision is unconscionable. However, she abandons that argument by
failing to repeat it in her opposition. In any event, Judge Koeltl
finds this argument is without merit. The Plaintiff does not
explain how the arbitration clause was either procedurally or
substantively unconscionable. The cost of arbitration is not
prohibitive. In any event, Guardian has agreed to pay Musella's
filing fee. Musella has therefore not met its burden of showing
that the arbitration clause is either procedurally or substantively
unconscionable and thereby unenforceable.
Because there is an agreement to arbitrate, because Musella has not
shown that the agreement is unenforceable, and because the
agreement covers "any and all claims and/or disputes between
Musella and Bob's arising out of and/or related to this agreement,
any products and/or services sold and/or purchased through Bob's,
and/or any performance of any services related to this agreement,"
which language plainly covers this dispute, Bob's motion to compel
arbitration of Musella's claims against Bob's is granted.
Lastly, the arbitration clause was not signed by Guardian.
Musella's claims against Guardian are intertwined with the contract
between Musella and Bob's and it would be inequitable to allow
Musella to escape the contract's obligation to arbitrate with
respect to Guardian. Therefore, Guardian's motion to compel
arbitration of Musella's claim is granted. Because Musella is
required to arbitrate her claims against Bob's and Guardian, both
the motions to dismiss Musella's claims are denied as moot.
Next, Bob's and Guardian move to dismiss Glover's claims pursuant
to Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim. In deciding a motion to dismiss, the allegations in the
complaint are accepted as true and all reasonable inferences must
be drawn in the plaintiff's favor. The Court may also consider
documents that are integral to the complaint or incorporated by
reference, such as contracts.
Judge Koeltl opines that (i) Glover has not alleged that she was
entitled to compensation under the Goof Proof plan or the one-year
factory defect warranty, and therefore Glover has not alleged that
the Defendants breached the contract by failing to compensate her;
(ii) Glover has failed to state a claim against Guardian for the
additional reason that Glover has not alleged adequately an
agreement between Guardian and Glover; (iii) the claim for breach
of express warranty also fails for the same reason as the breach of
contract claim: Glover has not alleged any statement that suggested
that the Goof Proof plans covered more than the plans in fact
covered and Glover has not "set forth the terms of the warranty"
that were allegedly breached; (iv) because Glover has not
adequately alleged any state-law breach of warranty claims, Glover
has not stated a claim under the Magnuson Moss Warranty Act.
Judge Koeltl further opines that (i) Glover's allegation that Bob's
sales representatives had incentives to misrepresent the scope of
the Goof Proof coverage is entirely conclusory and does not meet
the pleading standard required to survive a motion to dismiss under
Rule 12(b)(6), let alone the heightened standard of Rule 9(b); (ii)
because Glover fails specifically to allege any other deceptive
practice, Glover's claims under sections 349 and 350 fail; (iii)
Glover's claim under section 350 fails for the additional reason
that the Plaintiff has not alleged any advertisement; and (iv)
Glover's unjust enrichment claim merely repackages her defective
contract and tort claims, and therefore fails for the same reasons:
Glover has not identified any benefit that was conferred on the
Defendants unfairly.
Judge Koeltl has considered all of the arguments of the parties. To
the extent not specifically addressed, the arguments are either
moot or without merit. For the foregoing reasons, the Defendants'
motions to compel arbitration of Musella's claims are granted.
Their motions to dismiss Musella's claims are denied as moot. Their
motions to dismiss Glover's claims are granted without prejudice to
Glover's ability to file an amended complaint. Glover may file a
third amended complaint within 30 days of the date of the
Memorandum Opinion and Order. The Clerk is directed to close all
pending motions.
A full-text copy of the Court's Aug. 12, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/yc8rbs84 from
Leagle.com.
BP EXPLORATION: Bids to Reschedule in Anderson, Related Suits Nixed
-------------------------------------------------------------------
In the lawsuit styled LATONYA SHERELL ANDERSON v. BP EXPLORATION &
PRODUCTION, INC., ET AL., SECTION: "H," Case No. 17-3022, Also
filed in Case Nos. 17-3132, 17-3516, 17-3628, 17-3310, 17-3598,
17-3053, 17-3125, 17-3443, 17-3499, 17-3647, 17-3265, 17-4367,
17-4453 (E.D. La.), Judge Jane Triche Milazzo of the U.S. District
Court for the Eastern District of Louisiana denies the Plaintiff's
and other Plaintiffs' Motions to Continue All Scheduling Deadlines
and to Refrain from Ruling on Dispositive Motions Pending the
Completion of General Causation Discovery.
Before the Court are identical motions from 14 different
Plaintiffs. Each Plaintiff filed a Motion to Continue All
Scheduling Deadlines and to Refrain from Ruling on Dispositive
Motions Pending the Completion of General Causation Discovery.
Defendants BP Exploration & Production, Inc.; BP America Production
Company; and BP p.l.c. (collectively, "BP") oppose.
These 14 Plaintiffs are among the "B3 bundle" of cases arising out
of the Deepwater Horizon oil spill (In Re: Oil Spill by the Oil Rig
"Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, No.
10-md-02179, R. Doc. 26924 at 1 (E.D. La. Feb. 23, 2021)). This
bundle comprises "claims for personal injury and wrongful death due
to exposure to oil and/or other chemicals used during the oil spill
response (e.g., dispersant)."
These cases were originally part of a multidistrict litigation
("MDL") pending in the Eastern District of Louisiana before Judge
Carl J. Barbier. During this MDL, Judge Barbier approved the
Deepwater Horizon Medical Benefits Class Action Settlement
Agreement, but the B3 plaintiffs either opted out of this agreement
or were excluded from its class definition. Subsequently, Judge
Barbier severed the B3 cases from the MDL to be reallocated among
the judges of this Court. The 14 cases were reassigned to Section
H.
The Plaintiffs ask the Court to continue all deadlines in their
respective scheduling orders until their counsel has concluded
discovery on BP's alleged failure to conduct dermal monitoring and
biomonitoring on the oil spill response workers. Under Federal Rule
of Civil Procedure 16(b), a scheduling order "may be modified only
for good cause and with the judge's consent."
The Court finds that the need for additional discovery does not
constitute good cause for extending all deadlines in each
scheduling order.
The Plaintiffs' Motions also request that, in light of pending
discovery issues in the case of Torres-Lugo v. BP Exploration &
Production, Inc., No. 20-210, the Court should refrain from
addressing any pending dispositive motions submitted by BP.
However, the Court finds that the outcome of the additional
discovery in Torres-Lugo does not affect the issues presented in
many of BP's pending motions.
Accordingly, the Court rules that the Motions to Continue All
Scheduling Deadlines and to Refrain from Ruling on Dispositive
Motions Pending the Completion of General Causation Discovery are
denied in the following cases:
Case No. Case Name Doc. #
-------- --------- ------
17-3132 Cotton v. BP Exploration & Production, Doc. 58
Inc., et al.
17-3516 Brown v. BP Exploration & Production, Doc. 79
Inc., et al.
17-3022 Anderson v. BP Exploration & Production, Doc. 60
Inc., et al.
17-3628 Aubert v. BP Exploration & Production, Doc. 50
Inc., et al.
17-3310 Joiner v. BP Exploration & Production, Doc. 52
Inc., et al.
17-3598 Peschlow v. BP Exploration & Production, Doc. 44
Inc., et al.
17-3053 Booth v. BP Exploration & Production, Doc. 82
Inc., et al.
17-3125 Charles v. BP Exploration & Production, Doc. 50
Inc., et al.
17-3443 Abdelfattah v. BP Exploration & Production, Doc. 48
Inc., et al.
17-3499 Boler v. BP Exploration & Production, Inc., Doc. 50
et al.
17-3647 Colbert v. BP Exploration & Production, Doc. 72
Inc., et al.
17-3265 Harris v. BP Exploration & Production, Doc. 47
Inc., et al.
17-4367 Jenkins v. BP Exploration & Production, Doc. 60
Inc., et al.
17-4453 Moore v. BP Exploration & Production, Doc. 51
Inc., et al.
A full-text copy of the Court's Order and Reasons dated Aug. 11,
2022, is available at https://tinyurl.com/2sxd3pnc from
Leagle.com.
BP EXPLORATION: Court Grants Summary Judgment in Pettaway Suit
--------------------------------------------------------------
In the case, JOHN B. PETTAWAY v. BP EXPLORATION & PRODUCTION, INC.,
ET AL., SECTION "R" (5), Civil Action No. 17-3599 (E.D. La.), Judge
Sarah S. Vance of the U.S. District Court for the Eastern District
of Louisiana grants BP Exploration & Production, Inc., BP American
Production Co., and BP p.l.c.'s motion to exclude the testimony of
the Plaintiff's general causation expert, Dr. Jerald Cook, and
their motion for summary judgment.
The case arises from the Plaintiff's alleged exposure to toxic
chemicals following the Deepwater Horizon oil spill in the Gulf of
Mexico. He alleges that he performed cleanup work after the
Deepwater Horizon oil spill beginning on April 20, 2010. He asserts
that, as part of this work, he was exposed to crude oil or
dispersants. He also represents that this exposure has resulted in
the following conditions: Cough, congestion, pharyngitis, facial
pain or sinus pain, nasal discharge, diarrhea, dizziness, skin
dryness/flaking, and itching.
Mr. Pettaway's case was originally part of the multidistrict
litigation ("MDL") pending before Judge Carl J. Barbier. His case
was severed from the MDL as one of the "B3" cases for plaintiffs
who either opted out of, or were excluded from, the Deepwater
Horizon Medical Benefits Class Action Settlement Agreement. He is a
plaintiff who opted out of the settlement. After the Plaintiff's
case was severed, it was reallocated to the Court. The Plaintiff
asserts claims for general maritime negligence, negligence per se,
and gross negligence against the Defendants as a result of the oil
spill and its cleanup.
To demonstrate that exposure to crude oil, weathered oil, and
dispersants can cause the symptoms the Plaintiff alleges in his
complaint, he offers the testimony of Dr. Cook, an occupational and
environmental physician. Dr. Cook is the Plaintiff's sole expert
offering an opinion on general causation.
In his May 31, 2022 report, Dr. Cook utilizes a "general causation
approach to determine if a reported health complaint can be from
the result of exposures sustained in performing oil spill cleanup
work." He concludes that "general causation analysis indicates"
that the following conditions "can occur in individuals exposed to
crude oil, including weathered crude oil": Chronic rhinitis,
chronic sinusitis, allergic rhinitis, chronic obstructive pulmonary
disease , bronchitis, asthma, reactive airway disease, dermatitis,
skin irritation, skin rash, skin itching, acute conjunctivitis,
chronic conjunctivitis, and dry eye disease.
As an initial matter, the BP parties assert that because the
Plaintiff produced his expert reports almost a month after the
deadline without leave of court, the Court should not consider the
reports. In the alternative, they contend that Dr. Cook's expert
report should be excluded, arguing that it is unreliable and
unhelpful. The Defendants also move for summary judgment, asserting
that if Dr. Cook's general causation opinion is excluded, the
Plaintiff is unable to carry his burden on causation. The Plaintiff
opposes both motions.
Judge Vance explains that the Plaintiff has the burden of "proving
that the legal cause of his claimed injury or illness is exposure
to oil or other chemicals used during the response." At issue is
whether he has produced admissible general causation evidence. To
prove that exposure to the chemicals in oil and dispersants can
cause the medical conditions he alleges, the Plaintiff offers the
testimony of an environmental toxicologist, Dr. Cook. Dr. Cook
asserts that his report is "based on the scientific methods used in
the field of environmental toxicology." More specifically, he
states that his "causation analysis regarding health effects of oil
spill exposures draws on the process of evaluating epidemiology
studies and the work from established expert groups similar to the
Surgeon General's Advisory Committee to make a more likely than not
conclusion."
Judge Vance finds that the Plaintiff, as the party offering the
testimony of Dr. Cook, has failed to meet his burden of
establishing the reliability and relevance of Dr. Cook's report.
Dr. Cook's failure to identify the level of exposure to a relevant
chemical that can cause the conditions asserted in the Plaintiff's
complaint renders his opinion unreliable, unhelpful, and incapable
of establishing general causation. In addition to finding Dr.
Cook's general causation analysis unreliable, Judge Vance also
finds that Dr. Cook's opinion is unhelpful because of his inability
to link any specific chemical that Pettaway was allegedly exposed
to, at the level to which he was exposed, to the conditions that he
alleges in his complaint.
Given that Dr. Cook's report is unreliable and fails to provide the
"minimal facts necessary" to establish general causation in the
case, Judge Vance grants the Defendants' motion to exclude Dr.
Cook's testimony.
In their motion for summary judgment, the Defendants contend that
they are entitled to summary judgment "on two independent bases"
because the Plaintiff has cannot establish either general or
specific causation.
Given that the Plaintiff cannot prove a necessary element of his
claims against the Defendants, Judge Vance holds that his claims
must be dismissed. Accordingly, she grants the Defendants' motion
for summary judgment and dismisses the Plaintiff's claims with
prejudice.
A full-text copy of the Court's Aug. 16, 2022 Order & Reasons is
available at https://tinyurl.com/73uabx4v from Leagle.com.
BWC HARVEY LLC: Terrell Suit Removed to E.D. Louisiana
------------------------------------------------------
The case styled as Kimberly Terrell, Kelly Donahue, individually
and on behalf of all others similarly situated v. BWC Harvey LLC
formerly known as: Blackwater Harvey, LLC, Case No. 22-05104 J-15
was removed from the Civil District Court, Orleans Parish, to the
U.S. District Court for the Eastern District of Louisiana on July
26, 2022.
The District Court Clerk assigned Case No. 2:22-cv-02323-BWA-MBN to
the proceeding.
The nature of suit is stated as Other P.I. for Personal Injury.
BWC Terminals -- https://www.bwcterminals.com/ -- is a premier
provider of bulk liquid storage and related services in North
America.[BN]
The Plaintiffs are represented by:
Scott R. Bickford, Esq.
Jason Zachary Landry, Esq.
Jeremy James Landry, Esq.
Lawrence J. Centola, III, Esq.
Neil Franz Nazareth, Esq.
Spencer R. Doody, Esq.
MARTZELL & BICKFORD
338 Lafayette St.
New Orleans, LA 70130
Phone: (504) 581-9065
Email: srb@mbfirm.com
jzl@mbfirm.com
jjl@mbfirm.com
lcentola@mbfirm.com
nnazareth@mbfirm.com
usdcedla@mbfirm.com
The Defendant is represented by:
Thomas A. Casey, Jr., Esq.
Meghan Elizabeth Smith, Esq.
JONES WALKER (NEW ORLEANS)
201 St. Charles Ave., Suite 5100
New Orleans, LA 70170
Phone: (504) 582-8294
Fax: (504) 589-8294
Email: tcaseyjr@joneswalker.com
msmith@joneswalker.com
- and -
Alex Payton Prochaska, Esq.
JONES WALKER (LAFAYETTE)
600 Jefferson St., Suite 1600
Lafayette, LA 70501
Phone: (337) 593-7600
Email: aprochaska@joneswalker.com
C.O.C. BAKERY: Fails to Pay Cashiers' Proper Wages, Garcia Claims
-----------------------------------------------------------------
MARISELA GARCIA, individually and on behalf of all others similarly
situated, Plaintiff v. C.O.C. BAKERY CORP. (D/B/A LA VIENESA
SPANISH AMERICAN BAKERY); CLARA MARTINEZ; and GUSTAVO MARTINEZ,
Defendants, Case No. 1:22-cv-04817 (E.D.N.Y., Aug. 16, 2022) is an
action against the Defendant for failure to pay minimum wages,
overtime compensation, and provide accurate wage statements.
Plaintiff Garcia was employed by the Defendants as cashier.
BAKERY CORP. owns and operates a Colombian bakery, located at
Sunnyside, NY 11104 under the name "La Vienesa Spanish American
Bakery". [BN]
The Plaintiff is represented by:
Catalina Sojo, Esq.
CSM LEGAL, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
CALIFORNIA STATE: Anders' Bid for Class Cert. Denied W/o Prejudice
------------------------------------------------------------------
In the case, TAYLOR ANDERS, et al., Plaintiffs v. CALIFORNIA STATE
UNIVERSITY, FRESNO, et al., Defendants, Case No.
1:21-cv-00179-AWI-BAM (E.D. Cal.), Judge Anthony W. Ishii of the
U.S. District Court for the Eastern District of California denies
the Plaintiffs' motion for class certification without prejudice.
Plaintiffs Taylor Anders, Hennessey Evans, Abbigayle Roberts, Megan
Walaitis, Tara Weir and Courtney Walburger bring a motion for class
certification under Rules 23(a) and 23(b)(2) of the Federal Rules
of Civil Procedure.
In the 2020-21 academic year, Fresno State sponsored eight varsity
sports for men and 13 varsity sports for women. Each of these
sports is segregated by sex. On Oct. 16, 2020, it announced it
would stop offering men's wrestling, men's tennis and women's
lacrosse at the end of the current 2020-21 academic year.
On Feb. 12, 2021, Anders, Evans, Roberts, Walaitis and Weir filed
this class action (as members of Fresno State's women's varsity
lacrosse team) against Fresno State and certain Fresno State
administrators (collectively, "Defendants") alleging that the
Defendants violated Title IX of the Education Amendments of 1972,
20 U.S.C. Section 1681 et seq. and implementing regulations by
failing to provide female students an equal opportunity to
participate in varsity athletics (the "effective accommodation"
claim); failing to provide female athletes with an equal allocation
of financial aid (the "financial aid" claim); and failing to
provide female athletes with benefits comparable to those provided
to male athletes (the "equal treatment" claim).
On Feb. 12, 2021, the Plaintiffs also filed a motion seeking a
preliminary injunction barring Fresno State from cutting women's
lacrosse -- or any other women's team -- and requiring Fresno State
"to treat the women's lacrosse team and its members fairly" during
the pendency of the litigation. The Court granted the motion as to
equal treatment of the women's lacrosse team but did not bar
elimination of the women's lacrosse team.
On May 3, 2021, a First Amended Complaint ("FAC") was filed, adding
Walburger as a sixth Plaintiff. On May 15, 2021, the Defendants
filed a motion to dismiss the FAC in its entirety -- including the
effective accommodation claim, the financial aid claim, and the
equal treatment claim. The motion was granted, with leave to amend,
as to the financial aid claim and denied as to the effective
accommodation claim and the equal treatment claim.
The Plaintiffs filed a Second Amended Complaint ("SAC") on Aug. 12,
2021 seeking to state a financial aid claim, and on Oct. 29, 2021,
the Court granted, with prejudice, the Defendants' motion to
dismiss the financial aid claim on a finding that, properly
construed, data cited by the Plaintiffs showed that female
student-athletes received a disproportionate share of athletic
scholarships at Fresno State.
The Defendants answered the SAC on Nov. 19, 2021, and on Feb. 25,
2022, the Plaintiffs brought the instant motion for class
certification. In this motion, they seek certification under Rules
23(a) and 23(b)(2) of the Federal Rules of Civil procedure of a
class defined as follows: "All present and future women students
and potential students at Fresno State who participate, seek to
participate, and/or are deterred from participating in
intercollegiate athletics there.
Further, they seek appointment of two Plaintiffs -- Anders and
Walburger -- as class representatives and appointment of Bailey &
Glasser, LLP as class counsel.
The Plaintiffs argue, in the main, that class certification is
warranted because the sex discrimination alleged is "inherently
class-based" and that "the proposed class representatives will
fairly, adequately, and vigorously represent the interests of the
class." The Defendants argue that the proposed class is overbroad
and that none of the four prerequisites for class certification
under Rule 23(a) have been satisfied.
Class actions are governed by Rule 23 of the Federal Rules of Civil
Procedure, which sets forth a two-part framework for deciding
whether a class may be certified for representative litigation.
First, Rule 23(a) asks whether a proposed class action satisfies
each of the following four requirements: (1) the class is so
numerous that joinder of all members is impracticable; (2) there
are questions of law or fact common to the class; (3) the claims or
defenses of the representative parties are typical of the claims or
defenses of the class; and (4) the representative parties will
fairly and adequately protect the interests of the class. Assuming
all four of the Rule 23(a) prerequisites are satisfied, the second
step of the analysis addresses whether the proposed class satisfies
the requirements of Rule 23(b)(1), Rule 23(b)(2), or Rule
23(b)(3).
Judge Ishii finds that the numerosity, typicality and commonality
requirements of Rule 23(a) are satisfied as to the classes defined
in the Order.
As to the equal treatment claim, he defines the class as current
and future female Fresno State students who: (i) participate or
have participated in women's varsity intercollegiate athletics at
Fresno State; and/or (ii) are able and ready to participate in
women's varsity intercollegiate athletics at Fresno State but have
been deterred from doing so by the treatment received by female
varsity intercollegiate student-athletes at Fresno State.
And as to the effective accommodation claim, he defines the class
as current and future female Fresno State students who: (i) have
lost membership on a women's varsity intercollegiate athletics team
at Fresno State; (ii) have sought but not achieved membership on a
women's varsity intercollegiate athletics team at Fresno State;
and/or (iii) are able and ready to seek membership on a women's
varsity intercollegiate athletics team at Fresno State but have not
done so due to a perceived lack of opportunity.
Judge Ishii further finds, however, that the proposed class
representatives do not satisfy the Rule 23(a)(4) adequacy
requirement because there are evidently conflicts between the
interests of the class representatives, as former members of the
women's varsity lacrosse team, and current and future female
students at Fresno State who were not members of the women's
varsity lacrosse team and who are not able and ready to play
lacrosse. Similarly, the record plainly indicates that the
principal purpose this action is to protect (or restore) women's
varsity lacrosse and that other considerations are secondary to
that.
Judge Ishii, therefore, denies the motion for class certification
without prejudice to another motion for certification consistent
with the findings in his Order.
A full-text copy of the Court's Aug. 16, 2022 Order is available at
https://tinyurl.com/5xwxwcvf from Leagle.com.
CANE BAY: Faces Lindenberger Class Suit Over Tribal Lending Schemes
-------------------------------------------------------------------
Deborah Lindenberger, individually and on behalf of all others
similarly v. Cane Bay Partners VI, LLLP, et al., Case No.
3:22-cv-00427 (W.D. Wisc., Aug. 4, 2022) is a case about a scheme
to make online short-term loans that carry triple-digit interest
rates, often exceeding 800%, and that are illegal in many states.
In recent years, online lenders have concocted various schemes to
make high-interest loans over the internet while avoiding state
usury laws, including the "off-shore" scheme and the "tribal" or
"sovereign" lending scheme.
In the so-called "off-shore model," the lender is purportedly
located off-shore, such as in Belize, but in reality, the lender
operates in the United States. The purpose of the off-shore model
is to attempt to evade the usury laws and discourage regulators by
purportedly operating outside the United States.
In 2013, the Department of Justice initiated "Operation Chokepoint"
which investigated banks that did business with companies that the
DOJ believed to be at high-risk for fraud and money laundering. As
a result of Operation Chokepoint, the off-shore model of lending
significantly declined as lenders could not find banks or payment
processors willing to do business with a purportedly off-shore
online lending business. Since Operation Chokepoint, online lenders
have transitioned to tribal lending schemes.
In a tribal lending scheme, the lender affiliates with a Native
American tribe to attempt to enhance the appearance of tribal
ownership and insulate the scheme from federal and state law by
piggy-backing on the tribe’s sovereign legal status and the
tribe’s general immunity from suit under federal and state laws.
Defendant Strategic Link offers to provide "turnkey" "lending
solutions" to payday lenders. It claims to be powered by
"TranDotCom technology," including "marketing," "underwriting,"
"risk management," "auto payment and support," "rehabilitation of
consumer debt," "financial reporting," "legal and compliance,"
"portfolio management," and a "contact center."
http://www.slchq.com/turnkey-solution/(last accessed June 27,
2022).
Rather than complying with state lending and licensing
requirements, the Defendants entered into a tribal lending scheme
with the Tribe, the lawsuit says.
The Defendants include Dimension Credit (Cayman), L.P., Strategic
Link Consulting, LP, Esoteric Ventures, LLC, InfoTel International
Ltd., M. Mark High, Ltd., Kirk Chewning, David Johnson, Kim
Anderson, Jay Clark, Does 1-20, Scott Soli, Chief Executive Officer
of LCO Financial Services, in their official capacity, Lee Harden,
Chief Operating Officer of LCO Financial Services, in their
official capacity, Anoosh Motamedi, Chief Information Officer of
LCO Financial Services, in their official capacity, Trina Starr,
Director of Operations of LCO Financial Services, in their official
capacity, Louis Taylor, Chairperson of the LCO Tribal Governing
Board, in their official capacity, Lorraine Gouge, Vice-Chairperson
of the LCO Tribal Governing Board, in their official capacity,
Tweed Shuman, Secretary/Treasurer of the LCO Tribal Governing
Board, in their official capacity, Glenda Barber, LCO Tribal
Governing Board Council Member, in their official capacity, Don
Carley, LCO Tribal Governing Board Council Member, in their
official capacity, Gary "Little Guy" Clause, LCO Tribal Governing
Board Council Member, in their official capacity, Michelle Beaudin,
and LCO Tribal Governing Board Council Member, in their official
capacity.[BN]
The Plaintiff is represented by:
E. Michelle Drake, Esq.
John G. Albanese, Esq.
BERGER MONTAGUE PC
1229 Tyler Street NE, Suite 205
Minneapolis, MN 55413
Telephone: (612) 594-5999
Facsimile: (612) 584-4470
E-mail: emdrake@bm.net
jalbanese@bm.net
- and -
Sophia Rios, Esq.
BERGER MONTAGUE PC
401 B Street, Suite 2000
San Diego, CA 92101
Telephone: (858) 252-6649
Facsimile: (215) 875-4604
E-mail: srios@bm.net
CAPIO PARTNERS: Vazquez Suit Removed to M.D. Florida
----------------------------------------------------
The case styled as Teresa Vazquez, individually and on behalf of
all others similarly situated v. Capio Partners LLC, Case No.
2022CA001535CAAXWS was removed from the Pasco County, to the U.S.
District Court for the Middle District of Florida on July 18,
2022.
The District Court Clerk assigned Case No. 8:22-cv-01629-SDM-JSS to
the proceeding.
The lawsuit is brought over alleged violation of the Fair Debt
Collection Act.
Capio Partners, LLC -- https://www.capiopartners.com/ -- is a
third-party debt collection agency.[BN]
The Plaintiff is represented by:
Jason Tenenbaum, Esq.
TENENBAUM LAW GROUP, PLLC
1600 Ponce de Leon Blvd., 10th Floor
Suite 10th Floor
Coral Gables, FL 11530
Phone: (305) 402-9529
Fax: (516) 414-2869
Email: Jason@jtnylaw.com
The Defendants are represented by:
Rachel Megan Fleishman, Esq.
Dayle M. Van Hoose, Esq.
Michael Schuette, Esq.
SESSIONS, ISRAEL & SHARTLE, LLC
3350 Buschwood Park Drive, Suite 195
Tampa, FL 33618
Phone: (813) 775-2170
Email: rfleishman@sessions.legal
mschuette@sessions.legal
CAPITAL PROJECTS: Has Made Unsolicited Calls, Charman Suit Claims
-----------------------------------------------------------------
THANE CHARMAN, individually and on behalf of all others similarly
situated, Plaintiff v. CAPITAL PROJECTS LLC; CHRISTIAN REINARTSON;
and JOHN DOE, Defendants, Case No. 3:22-cv-01201-JO-MSB (S.D. Cal.,
Aug. 16, 2022) seeks to stop the Defendants' practice of making
unsolicited calls.
CAPITAL PROJECTS LLC sell residential real estate. [BN]
The Plaintiff is represented by:
Mark L. Javitch, Esq.
JAVITCH LAW OFFICE
3 East 3rd Ave. Ste. 200
San Mateo, CA 94401
Telephone: (650) 781-8000
Facsimile: (650) 648-0705
Email: mark@javitchlawoffice.com
CASEY'S GENERAL: Lewis Seeks Unpaid Overtime Pay Under FLSA
-----------------------------------------------------------
BEVERLY LEWIS, individually, and on behalf of herself and others
similarly situated as a class v. CASEY'S GENERAL STORES, INC., Case
No. 1:22-cv-01166-JDB-jay (W.D. Tenn., Aug. 4, 2022) is a
collective action for violations of the Fair Labor Standards Act
brought against Casey's by Plaintiff, individually, and on behalf
of other similarly situated hourly-paid employees.
The Plaintiff and the putative class seek damages for unpaid
overtime compensation for the three years preceding the filing of
this lawsuit.
The Plaintiff and the putative class were employed by the Defendant
during the three years preceding the filing of this Complaint.
The Defendant is a chain of convenience stores in the Midwestern
and Southern United States. Casey’s operates in 16 different
states and has over 40,000 employees.[BN]
The Plaintiff is represented by:
J. Russ Bryant, Esq.
Robert E. Turner, IV, Esq.
Robert E. Morelli, III, Esq.
JACKSON, SHIELDS, YEISER, HOLT
OWEN & BRYANT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 754-8524
E-mail: rbryant@jsyc.com
rturner@jsyc.com
rmorelli@jsyc.com
CEDAR FAIR: Mahoney Sues Over Blind-Inaccessible Website
--------------------------------------------------------
John Mahoney, on behalf of himself and all others similarly
situated v. Cedar Fair, L.P., Case No. 2:22-cv-02986 (E.D. Pa.,
July 29, 2022), is brought against the Defendant to enforce Title
III of the Americans with Disabilities Act.
By failing to make its Website available in a manner compatible
with computer screen reader programs, the Defendant deprives blind
and visually-impaired individuals the benefits of its goods,
services, facilities, privileges, advantages, or accommodation of
its places of public accommodation--all benefits it affords
nondisabled individuals--thereby increasing the sense of isolation
and stigma among these Americans that Title III was meant to
redress, says the complaint.
The Plaintiff is a blind, visually-impaired handicapped person and
requires screen-reading software to read website content using his
computer.
The Defendant owns and operates a business in the State of
Pennsylvania.[BN]
The Plaintiff is represented by:
David S. Glanzberg, Esq.
GLANZBERG TOBIA LAW, P.C.
123 South Broad Street, Suite 1640
Philadelphia, PA 19109
Phone: (215) 981-5400
Fax: (267) 319-1993
Email: david.glanzberg@gtlawpc.com
CELLCO PARTNERSHIP: Corsi Files Suit in D. New Jersey
-----------------------------------------------------
A class action lawsuit has been filed against Cellco Partnership,
et al. The case is styled as Cintia Corsi, Karyn Challender, Angela
Green, Karen Hudson, Jerry Hunt, on behalf of themselves and all
others similarly situated v. Cellco Partnership, Verizon
Communications, Inc., Case No. 3:22-cv-04621-ZNQ-RLS (D.N.J., July
18, 2022).
The nature of suit is stated as Other Fraud.
Cellco Partnership, doing business as Verizon Wireless --
https://www.verizon.com/ -- provides wireless voice and data
services.[BN]
The Plaintiffs are represented by:
Stephen Patrick Denittis, Esq.
DENITTIS OSEFCHEN, PC
5 Greentree Centre
525 Route 73 North, Suite 410
Marlton, NJ 08053
Phone: (856) 797-9951
Fax: (856) 797-9978
Email: sdenittis@denittislaw.com
CEREBRAL MEDICAL: Crossley Sues Over Unpaid Compensation
--------------------------------------------------------
Kaycie Crossley, on behalf of the State of California, as a private
attorney general v. CEREBRAL MEDICAL GROUP, P.A., a Professional
Association; CEREBRAL MEDICAL GROUP, A PROFESSIONAL CORPORATION, a
Professional Corporation; and DOES 1 through 50, inclusive, Case
No. CGC-22-600627 (Cal. Super. Ct., San Francisco Cty., July 11,
2022), is brought on behalf of the Care Counselors, Therapists and
other similar job titles for persons who worked for the Defendant
in California and were classified as independent contractors, in
order to collect the wages due them as employees of the Defendant,
the cost of the employer's share of payments to the federal and
state governments for income taxes, social security taxes, medicare
insurance, unemployment insurance and payments for workers'
compensation insurance, plus penalties and interest.
The cost, as proscribed by law, of the personnel hired to work for
the Defendant, includes not only the pay and overtime pay of these
employees but the cost of the employer's share of tax payments to
the federal and state governments for income taxes, social security
taxes, medicare insurance, unemployment insurance and payments for
workers' compensation insurance ("Business Related Expenses"). To
avoid the payment of these legally proscribed Business-Related
Expenses to the fullest extent possible, the Defendant devised a
scheme to place the responsibility for the payment of these costs
and expenses of the Defendant on the shoulders of the Plaintiff and
other Counselors. As employer, the Defendant is legally responsible
for the payment of all these Business-Related Expenses. Here, the
Defendant has willfully misclassified the Plaintiff and other Care
Counselors, Therapists and other similarly situated persons with
similar job titles collectively
referred herein as "Counselors" and further, that the Defendant has
engaged in a "pattern or practice" of such violations as
contemplated by the California Labor Code, says the complaint.
The Plaintiff was employed by the Defendant as a Care Counselor
from April of 2021 to August of 2021 and was classified by the
Defendant as an independent contractor during her entire employment
with the Defendant.
The Defendant operates a business that connects individuals looking
for mental health services on demand.[BN]
The Plaintiff is represented by:
Norman B. Blumenthal, Esq.
Kyle R. Nordrehaug, Esq.
Aparajit Bhowmik, Esq.
Nicholas J. De Blouw, Esq.
BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP
2255 Calle Clara
La Jolla, CA 92037
Phone: (858)551-1223
Facsimile: (858) 551-1232
Website: www.bamlawca.com
CHEMTOOL INC: Court Denies Bids to Remand Mackey & Henderson Suits
------------------------------------------------------------------
Judge Iain D. Johnston of the U.S. District Court for the Northern
District of Illinois, Western Division denies the motions to remand
the lawsuits entitled Stephanie Mackey, and Nick Migliore,
Plaintiffs v. Chemtool Inc., and Lubrizol Corp., Defendants. Sara
Henderson, Plaintiff v. Chemtool Inc., and Lubrizol Corp.,
Defendants, Case Nos. 3:21-cv-50283, 3:21-cv-50285 (N.D. Ill.).
On June 14, 2021, an explosion and subsequent fire destroyed a
chemical plant in Rockton, Illinois. Defendants Chemtool, and its
parent company Lubrizol, operated the plant. Soon after, three
class actions were filed against the Defendants claiming that they
negligently operated the plant and caused toxic matter to be
released into the air, which eventually fell on the Plaintiffs'
property. The cases were originally filed in the Seventeenth
Judicial Circuit Court, Winnebago County, Illinois.
The first case filed was Grasley v. Chemtool Inc., No.
2021-L-0000162. That case was filed on June 17, 2021, and it
remains in state court. The next day, additional plaintiffs filed
Mackey v. Chemtool, Inc., 2021-L-0000165. Ten days later, still
further plaintiffs filed Henderson v. Chemtool, Inc.,
2021-L-0000175.
Chemtool and Lubrizol then removed the Mackey and Henderson
cases--which are the subject of this opinion--to this Court and
asserted diversity jurisdiction under the Class Action Fairness Act
(CAFA).
The Plaintiffs in both federal cases have now moved the Court to
remand back to the Seventeenth Judicial Circuit. Because the
motions in both cases present the same narrow question based on the
very similar circumstances, the Court consolidated the motions into
this single order to be filed in both cases.
In these two cases, the Defendants have asserted diversity
jurisdiction under the CAFA. A defendant's notice of removal need
only include a short and plain statement alleging a plausible basis
for removal, including that the procedural requirements were met
and that the federal court has statutory and constitutional
jurisdiction. This requirement tracks the federal pleading standard
for claims originally filed in federal court.
Judge Johnston finds that neither set of Plaintiffs takes issue
with the procedural requirements of removal. Nor do they contend
that the Court lacks jurisdiction. Rather, they argue that an
exception to CAFA applies, preventing the Court from exercising its
jurisdiction over these actions. Three exceptions exist to the
CAFA's grant of federal diversity jurisdiction: (1) the
discretionary home-state exception, (2) the mandatory home-state
exception, and (3) the local-controversy exception.
The mandatory home-state exception requires the Court to decline
federal jurisdiction over cases in which more than two-thirds of
the putative class members and the primary defendants are all
members of the State in which the case was originally filed.
Because this exception appeared the most applicable, the Court
required the parties to file position papers addressing whether it
applied. Based on the filings and pleadings, the Court believed
that Chemtool was the primary Defendant. The Court was under the
impression that Lubrizol, the only out-of-state Defendant was
merely a defendant in this case through indirect theories of
liability. So, under this authority, Lubrizol would merely be a
deep pocket, not a "primary defendant."
Indeed, the Henderson complaint plainly alleges that Lubrizol is
Chemtool's parent company. Nevertheless, all parties contend that
the mandatory home-state exception is inapplicable. As the
Plaintiffs in both cases point out, the original complaints filed
in state court allege that both Chemtool and Lubrizol operated the
chemical plant. Thus, because both Defendants allegedly operated
the plant, the Plaintiffs' complaints allege a plausible basis for
direct liability, which places Lubrizol within the understood
definition of a primary defendant. Thus, the mandatory home-state
exception does not apply.
The Plaintiffs instead argue that the local-controversy exception
applies in this case and requires that the Court decline federal
jurisdiction and remand both of these cases back to the Seventeenth
Judicial Circuit. Judge Johnston notes that the local controversy
exception requires federal district judges to decline to exercise
jurisdiction over cases that meet certain statutorily determined
indicia that the controversy is merely local.
The Court is required to decline jurisdiction when certain
requirements are met, including the final requirement that during
the 3-year period preceding the filing of that class action, no
other class action has been filed asserting the same or similar
factual allegations against any of the defendants on behalf of the
same or similar persons.
Judge Johnston notes that all requirements but the last are
undisputedly met. Nearly all members of the putative class are
citizens of Illinois. Chemtool is a citizen of the State of
Illinois. It is also allegedly responsible for a significant
portion of the purported harm done in this case because it operated
the plant at issue, notwithstanding that Lubrizol allegedly shared
those duties. No one disputes that the alleged injuries occurred in
Illinois, given that the chemical plant exploded in Rockton,
Illinois, and the injuries occurred in the form of allegedly toxic
ash and debris falling on the putative class members' Illinois
properties. The only question at issue is whether the final
requirement is met.
Under the plain terms of the statute, the final requirement of the
local controversy exception is not met in this case, Judge Johnston
holds. The Grasley class action was filed one day before Mackey and
10 days before Henderson. And the parties do not dispute that
Grasley asserts "the same or similar factual allegations against
any of the defendants on behalf of the same or similar persons."
So, the local controversy exception does not apply, Judge Johnston
points out.
To avoid the clear application of the facts to the statute, the
Plaintiffs initially argue that the statute does not mean what it
says based on the legislative history of CAFA. But that's a
nonstarter, Judge Johnston notes. Courts do not consider
legislative history when the statute is unambiguous.
Ignoring this fundamental principle, the Plaintiffs contend that
remand will facilitate the intent of Congress and allow the three
class actions to proceed in a coordinated fashion. They contend
that the "no other class action" clause was intended to ensure that
the local controversy exception wouldn't apply to class actions
filed in multiple states, but would if filed in the same state.
They further contend that a motion to consolidate the Mackey and
Henderson cases was already pending in state court, that the
Plaintiffs' counsel across the cases had already agreed to work in
a coordinated fashion, and the Plaintiffs' counsel in Mackey and
Henderson have since filed appearances in Grasley in the
Seventeenth Judicial Circuit.
Given these circumstances, the Plaintiffs ask the Court to consider
the three cases essentially the same "quintessentially local case"
and declare that no other class action was filed in the three
preceding years. But this legislative purpose argument cannot
prevail in the face of unambiguous text, Judge Johnston opines.
Plain text trumps purpose.
Nothing in the Plaintiffs' motion to remand explains how the local
controversy exception's text is ambiguous, Judge Johnston states.
Instead, the argument proceeds directly to the purported intent and
rationale of Congress in passing the statute. But the text is not
ambiguous, Judge Johnston points out. The statutory text requires
that "no other class action" be filed in the preceding three years.
And it is undisputed that Grasley--a class action asserting the
same factual allegations against the same defendants on behalf of
the same or similar persons--was filed previously in the
Seventeenth Judicial Circuit.
In reply, the Plaintiffs contend for the first time that the
definition of "other class action" is ambiguous. They contend that
an "action" is not necessarily "a case filed under only one docket,
case number, or caption" (3:21-cv-50293).
The Plaintiffs' contention is wrong, Judge Johnston holds. The
plain language of the Federal Rules of Civil Procedure--which have
existed since 1938--establishes that an action is, indeed, a case
filed under one docket, case number, and caption. Federal Rules of
Civil Procedure 2 and 3 prove that point.
Now, in the reply brief and ignoring both the plain text of CAFA
and Rules 2 and 3, the Plaintiffs note that mass actions (rather
than class actions) are treated the same as class actions under the
statute. Judge Johnston holds that that does not render the text
ambiguous. A mass action is suit "in which monetary relief claims
of 100 or more persons are proposed to be tried jointly on the
ground that the plaintiffs' claims involve common questions of law
or fact," Judge Johnston opines, citing Koral v. Boeing Co., 628
F.3d 945, 946 (7th Cir. 2011) (quoting 28 U.S.C. Section
1332(d)(11)(B)(i).
The Plaintiff's argument is based on Koral v. Boeing Co., 628 F.3d
945, 946 (7th Cir. 2011). In Kolar, the Seventh Circuit addressed a
situation in which district courts were presented with 29 separate
suits. The Court explained that all 29 cases were unlikely to go to
trial because "in aviation disaster cases, several exemplar cases
are routinely tried on one occasion at which time the issue of
liability is determined for the remainder of the cases." On that
theory, Boeing removed to federal court and argued that the 29
cases were really just one mass action. The Seventh Circuit
explained that removal was premature and that any proposition to
try cases jointly as a mass action must be made "to the court in
which the suits are pending."
The Plaintiffs contend that Koral stands for the proposition that
"lawsuits filed under different dockets and with different captions
can be treated collectively as a 'class action' under CAFA if
plaintiffs propose to try them jointly."
Judge Johnston holds that the Plaintiffs are correct that mass
actions are treated as if they were class actions for the purposes
of CAFA, but that does not help them in this case. First, the
Plaintiffs have presented no evidence that they proposed to try the
cases jointly as a mass action in the Seventeenth Judicial Circuit,
as Koral plainly requires. Indeed, the Plaintiffs made clear that
the three cases are not mass actions. Second, the concept of a mass
action does not render the "no other class action" language
ambiguous. Grasley is without question a class action within the
meaning of CAFA, and the Plaintiffs do not argue to the contrary.
Nevertheless, the Plaintiffs ask the Court to hold that Grasley is
not truly an "other class action." What the Plaintiffs essentially
ask the Court to do is graft additional language onto an already
unambiguous statutory provision, Judge Johnston notes. The
Plaintiffs argue that, because Grasley was filed "one day earlier"
than Mackey, considering it an "other class action" fails to
enforce the clear intent of Congress. The Plaintiffs ask the Court
to deem all class actions filed in close temporal proximity in the
same state to be the same class action for the purposes of the
statute.
But the statute already defines a class action, and this grafting
of an additional temporal-based exception to the definition creates
a clear problem, Judge Johnston opines. Indeed, Mackey and
Henderson present a prime example of why the Court cannot read such
a temporal-based exception into an otherwise unambiguous textual
provision.
Judge Johnston points out that the Plaintiffs ask the Court to
create an unwritten statutory exception not only for Mackey--which
was filed one day after Grasley--but also for Henderson--which was
filed 10 days after Grasley. Where does the scope of this temporal
exception end? Judge Johnston asks. Is it one day, or ten, or could
a case filed two months prior be considered part of the same class
action? That is a question for Congress to answer. Congress is
fully capable of drafting statutory text that expands the
definition of a class action, or that redefines the local
controversy exception. Regardless of Congress' intent, it answered
the question with a bright-line rule: "no other class action."
The local controversy exception does not apply, and the motions to
remand are denied, Judge Johnston rules.
A full-text copy of the Court's Memorandum Opinion and Order dated
Aug. 11, 2022, is available at https://tinyurl.com/5n7utca5 from
Leagle.com.
CHICAGO HOUSING AUTHORITY: Oliver Files Suit in N.D. Illinois
-------------------------------------------------------------
A class action lawsuit has been filed against Chicago Housing
Authority. The case is styled as Josette Oliver, Keona Montgomery,
Taryn Travis, on behalf of themselves and all others similarly
situated v. Chicago Housing Authority, Case No. 1:22-cv-03786 (N.D.
Ill., July 21, 2022).
The nature of suit is stated as Other Civil Rights.
The Chicago Housing Authority -- http://www.thecha.org/-- offers
affordable rental housing opportunities.[BN]
The Plaintiffs are represented by:
Daniel Ray Campbell, Esq.
Michael Wesley Weaver, Esq.
MCDERMOTT WILL & EMERY
444 West Lake Street, Suite 4000
Chicago, IL 60606
Phone: (312) 984-2167
Email: dcampbell@mwe.com
mweaver@mwe.com
- and -
Daniel Joshua Schneider, Esq.
John Mark Bouman, Esq.
Lawrence Davis Wood, Esq.
LEGAL ACTION CHICAGO
120 S. LaSalle St., Suite 900
Chicago, IL 60603
Phone: (312) 423-5941
Email: dschneider@legalactionchicago.org
jbouman@legalactionchicago.org
lwood@legalactionchicago.org
- and -
Katherine Elizabeth Walz, Esq.
Marcos Segura, Esq.
NATIONAL HOUSING LAW PROJECT
1663 Mission Street, #460
San Francisco, CA 94103
Phone: (415) 546-7000
Email: kwalz@nhlp.org
msegura@nhlp.org
The Defendant is represented by:
William Tobias Eveland, Esq.
Elizabeth Anne Thompson, Esq.
SAUL EWING ARNSTEIN & LEHR LLP
161 North Clark Street, Suite 4200
Chicago, IL 60601
Phone: (312) 876-7100
Email: toby.eveland@saul.com
elizabeth.thompson@saul.com
CHILDREN'S HOME: Gonzalez Files Suit in Cal. Super. Ct.
-------------------------------------------------------
A class action lawsuit has been filed against Children's Home of
Stockton. The case is styled as Rita Gonzalez, individually, and on
behalf of other members of the general public similarly situated v.
Children's Home of Stockton, a California Corporation, Case No.
STK-CV-UOE-2022-0006373 (Cal. Super. Ct., San Joaquin Cty., July
25, 2022).
The case type is stated as "Unlimited Civil Other Employment."
The Children's Home of Stockton -- https://www.chstockton.org/ --
gives at-risk youth an opportunity for a productive life through
treatment and education in a safe, nurturing environment.[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
CLEAN HARBORS: Bush Suit Removed to W.D. Louisiana
--------------------------------------------------
The case styled as Ricky Bush, individually & on behalf of a class
of similarly situated persons v. Clean Harbors Colfax LLC, Case No.
27714 was removed from the 35th Judicial District Court, Parish of
Grant, to the U.S. District Court for the Western District of
Louisiana on July 8, 2022.
The District Court Clerk assigned Case No. 1:22-cv-02026-DDD-JPM to
the proceeding.
The nature of suit is stated as Other Real Property.
Clean Harbors Colfax LLC -- https://www.cleanharbors.com/ -- is a
waste management service in Louisiana.[BN]
The Plaintiff is represented by:
Jason Z Landry, Esq.
Jeremy James Landry, Esq.
Lawrence J Centola, III, Esq.
Neil Franz Nazareth, Esq.
Scott R Bickford, Esq.
MARTZELL & BICKFORD
338 Lafayette St
New Orleans, LA 70130
Phone: (504) 581-9065
Fax: (504) 581-7635
Email: jzl@mbfirm.com
jjl@mbfirm.com
lcentola@mbfirm.com
nfn@mbfirm.com
srb@mbfirm.com
- and -
Stephen John Hecker, Esq.
HECKER LAW FIRM
631 St Charles Ave Ste 2F
New Orleans, LA 70130
Phone: (504) 491-8599
Fax: (504) 581-3305
Email: sjheckerlaw@gmail.com
- and -
Thomas B Wahlder, Esq.
1740 Jackson St
Alexandria, LA 71301
Phone: (318) 442-9417
Fax: (318) 442-1333
Email: twahlder@aol.com
The Defendant is represented by:
Robert J Burvant, Esq.
Eric E Jarrell, Esq.
Marie Olga Luis, Esq.
Michael J Cerniglia, Esq.
Patrick T Isacks, Esq.
KING & JURGENS
201 St Charles Ave Ste 4500
New Orleans, LA 70170-1034
Phone: (504) 582-3800
Fax: (504) 582-1233
Email: rburvant@kingjurgens.com
ejarrell@kingjurgens.com
mluis@kingjurgens.com
mcerniglia@kingjurgens.com
pisacks@kingjurgens.com
COINBASE GLOBAL: Faces Patel Securities Suit Over Common Stock Drop
-------------------------------------------------------------------
VIJAY PATEL, Individually and on Behalf of All Others Similarly
Situated v. COINBASE GLOBAL, INC., BRIAN ARMSTRONG, and ALESIA J.
HAAS, Case No. 1:22-cv-04915 (D.N.J., Aug. 4, 2022) is a federal
securities class action on behalf of a class consisting of all
persons and entities other than Defendants that purchased or
otherwise acquired Coinbase securities between April 14, 2021 and
July 26, 2022, both dates inclusive, seeking to recover damages
caused by the Defendants' violations of the federal securities laws
and to pursue remedies under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934.
Coinbase provides financial infrastructure and technology products
and services for the cryptocurrency economy in the U.S. and
internationally. The Company purportedly offers the primary
financial account in the cryptoeconomy for retailers, a marketplace
with a pool of liquidity for transacting in crypto assets for
institutions, and technology and services that enable ecosystem
partners to build crypto-based applications and securely accept
crypto assets as payment.
Throughout the Class Period, Defendants made materially false and
misleading statements regarding the Company's business, operations,
and compliance policies. Specifically, the Defendants made false
and/or misleading statements and/or failed to disclose that
Coinbase custodially held crypto assets on behalf of its customers,
which assets Coinbase knew or recklessly disregarded could qualify
as the property of a bankruptcy estate, making those assets
potentially subject to bankruptcy proceedings in which Coinbase's
customers would be treated as the Company's general unsecured
creditors, says the suit.
On May 10, 2022, in its quarterly report for the first quarter of
2022, released after the markets closed, Coinbase disclosed that:
"Because custodially held crypto assets may be considered to be the
property of a bankruptcy estate, in the event of a bankruptcy, the
crypto assets we hold in custody on behalf of our customers could
be subject to bankruptcy proceedings and such customers could be
treated as our general unsecured creditors."
Following this disclosure, the price of Coinbase's Class A common
stock fell $19.27 per share, or 26.4%, to close at $53.72 per share
on May 11, 2022. In a subsequent tweet commenting on the
disclosure, Coinbase's Chief Executive Officer, Defendant Brian
Armstrong, stated: "We should have updated our retail terms sooner,
and we didn't communicate proactively when this risk disclosure was
added. My deepest apologies, and a good learning moment for us as
we make future changes."
On May 12, 2022, Professor Adam J. Levitin, a professor of law, at
Georgetown University Law Center, published a draft of an article
entitled "Not Your Keys, Not Your Coins: Unpriced Credit Risk in
Cryptocurrency," set to appear in the Texas Law Review, which
argues that in the event a cryptocurrency exchange files for
bankruptcy, bankruptcy courts are likely to deem custodial holdings
of cryptocurrencies to be property of the bankrupt exchange, rather
than the property of its customers. Then, on July 25, 2022, after
the markets closed, Bloomberg reported that Coinbase is facing an
SEC probe into whether it improperly let Americans trade digital
assets that should have been registered as securities.
On this news, the price of Coinbase's Class A common stock fell
$14.14 per share, or 21.08%, to close at $52.93 per share on July
26, 2022, the suit alleges.
As a result of the Defendants' alleged wrongful acts and omissions,
and the precipitous decline in the market value of the Company's
securities, the Plaintiff and other Class members have suffered
significant losses and damages.
The Plaintiff acquired Coinbase securities at artificially inflated
prices during the Class Period and was damaged upon the revelation
of the alleged corrective disclosures. [BN]
The Plaintiff is represented by:
Thomas H. Przybylowski, Esq.
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (917) 463-1044
E-mail: tprzybylowski@pomlaw.com
tprzybylowski@pomlaw.com
jalieberman@pomlaw.com
ahood@pomlaw.com
- and -
Joshua E. Fruchter, Esq.
WOHL & FRUCHTER LLP
25 Robert Pitt Drive, Suite 209G
Monsey, NY 10952
Telephone: (845) 290-6818
Facsimile: (718) 504-3773
E-mail: jfruchter@wohlfruchter.com
COMSTAR LLC: Basinas Files Suit in D. Massachusetts
---------------------------------------------------
A class action lawsuit has been filed against Comstar, LLC. The
case is styled as Andrew Basinas, on behalf of himself and all
others similarly situated v. Comstar, LLC, Case No.
1:22-cv-11122-RWZ (D. Mass., July 12, 2022).
The nature of suit is stated as Other P.I. for Personal Injury.
Comstar LLC -- https://comstar.biz/ -- provides mobile-friendly web
design, website development, internet marketing, and hosting
services.[BN]
The Plaintiff is represented by:
Kurt J. Hagstrom, Esq.
HAGSTROM LAW GROUP
66 North Second Street
New Bedford, MA 02740
Phone: (774) 202-5510
Email: Kurt@hagstromlawgroup.com
CONTRACT LAND: Weinmann Suit Seeks Unpaid OT Wages Under FLSA
-------------------------------------------------------------
GAYL WEINMANN, individually and for Others similarly situated v.
CONTRACT LAND STAFF, LLC, Case No. 2:22-cv-01140-DSC (W.D. Pa.,
Aug. 4, 2022) seeks to recover unpaid overtime wages and other
damages from CLS individually and on behalf of all others
similarly
situated under the under the Fair Labor Standards Act, the
Pennsylvania Minimum Wage Act, and the Illinois Minimum Wage Law.
Plaintiff Weinmann worked for Defendant under a variety of job
titles, including Right of Way Agent. Weinmann and the Class
Members regularly worked more than 40 hours a week. But the Class
Members never received overtime for hours worked in excess of 40
hours in a single workweek. Instead of receiving overtime as
required by the FLSA, PMWA, and the IMWL, these workers received a
flat amount for each day worked (a day rate) without overtime
compensation, the lawsuit alleges.
The Plaintiff and the Class Members never received a guaranteed
salary while receiving a day rate. This class and collective action
seeks to recover the unpaid overtime wages and other damages owed
to these workers, added the suit.[BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Taylor S. Montgomery, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
tmontgomery@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
11 Greenway Plaza, Suite 3025
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
- and -
Joshua P. Geist, Esq.
GOODRICH & GEIST, P.C.
3634 California Avenue
Pittsburgh, PA 15212
Telephone: (412) 766-1455
Facsimile: (412) 766-0300
E-mail: josh@goodrichandgeist.com
DALLAS JONES: Court Denies Bids to Dismiss 3rd Amended McClurg Suit
-------------------------------------------------------------------
In the case, JOHNNY MCCLURG, Plaintiff v. DALLAS JONES ENTERPRISES
INC. d/b/a Clay's Trucking, et al., Defendants, Civil Action No.
4:20-CV-00201-JHM (W.D. Ky.), Judge Joseph H. McKinley, Jr., of the
U.S. District Court for the Western District of Kentucky, Owensboro
Division, denies the Motions to Dismiss the Third Amended Complaint
by Defendants Dana Porter, Brock Porter, and Dallas Jones.
Plaintiff McClurg is employed by Dallas Jones Enterprises.
Throughout his employment, McClurg alleges that it paid him on a
"per-ton basis" -- a flat fee for every ton of coal transported.
But he would sometimes work more than 40 hours in a week, and it
did not increase his fee on those deliveries.
Believing he was entitled to overtime when he worked more than
forty hours in a week, McClurg sued asserting two causes of action
against Dallas Jones Enterprises: a federal claim for unpaid
overtime under the Fair Labor Standards Act and a state law claim
under the Kentucky Wage and Hour Act.
In February of 2022, McClurg moved for leave to file a third
amended complaint. The third amended complaint added allegations
against new individual Defendants Dana Porter, Brock Porter, and
Dallas Jones who own and control the company, as well as
specifically referencing and attaching MCS-150 forms and adding
allegations related to the failure of Dallas Jones Enterprises to
correct its previously submitted Form MCS-150. Dallas Jones
Enterprises did not oppose the motion, and it was granted.
Prior to filing his third amended complaint, McClurg moved to
conditionally certify a collective of truck drivers who worked for
Dallas Jones Enterprises and were subject to the Fair Labor
Standards Act. On Dec. 3, 2021, the Court granted McClurg's motion
to conditionally certify the class of "all persons who were
employed as a truck driver by Dallas Jones Enterprises, Inc. (which
has done business as 'Clay's Trucking') and were not paid overtime
compensation for work performed in excess of 40 hours in one or
more workweeks [within the three years preceding this notice]
(including both current and former employees)."
The Court modified both the proposed notice and proposed consent
form, and McClurg sent them to the potential collective members
pursuant to the order of the Court.
The newly added individual Defendants Dana Porter, Brock Porter,
and Dallas Jones ("the individual Defendants") have moved to
dismiss the third amended complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6).
The individual Defendants move to dismiss the third amended
complaint arguing that it fails to state a claim upon which relief
can be granted because the FLSA claims against these individual
Defendants were included in the third amended complaint after the
Court's grant of conditional certification. Specifically, they
complain that they were not afforded the opportunity to be heard on
the certification motion and that it was procedurally improper to
bring in these individual Defendants after the conditional
certification had been granted because there were no findings
relating to the conditional certification as to these individual
Defendants. Further, they contend that questions would exist as to
what exact case and against which defendants any potential or
prospective plaintiff is being asked to "opt-in" against, as these
individual Defendants were only recently added as named defendants.
Accordingly, they argue that McClurg has failed to state a claim
upon which relief can be granted.
In response, McClurg argues that the motions to dismiss should be
denied for three reasons: (1) the Court's conditional certification
ruling did not have the consequence of preventing the three
individuals from becoming defendants in this case or impose
procedural barriers on McClurg amending his complaint; (2) it is
entirely appropriate for the representative plaintiff in a FLSA to
seek leave to amend to assert new claims against new defendants,
including seeking leave to do so on behalf of the opt-in plaintiffs
who have already joined the action, Prickett v. DeKalb Cty., 349
F.3d 1294, 1297 (11th Cir. 2003); and (3) alternatively, if the
Court disagrees, McClurg's own claims can proceed against the
individual Defendants and opt-in plaintiffs should be permitted to
supplement their consents to proceed with respect to the claims
against the individual Defendants.
Judge McKinley finds that the third amended complaint states a FLSA
claim against the individual Defendants under the Rule 12(b)(6)
standard. McClurg alleges that the individual defendants are the
corporate officers, had operational control over significant
aspects of the corporation's day-to-day functions, and were
McClurg's employer. The individual Defendants do not argue
otherwise.
Ultimately, the questions raised by the individual Defendants'
motions are whether McClurg and the opt-in plaintiffs may amend the
complaint to add additional defendants once the action has been
conditionally certified and, if so, procedurally whether the Court
must make a separate FLSA finding with respect to McClurg and the
opt-in plaintiffs' claims against the individual Defendants.
Judge McKinley holds that the Plaintiffs may amend a complaint to
add additional defendants once an FLSA action has been
conditionally certified. Neither the Court nor the parties have
tendered any statutory or case law prohibiting such amendment after
the grant of conditional certification in an FLSA action. In fact,
courts have granted amendments under similar circumstances. In the
case, the collective class has been defined, the class has been
certified, a motion to amend the complaint to add individual
defendants was granted, and the individual defendants are alleged
to have operational control over the original corporate defendant.
Judge McKinley holds that the addition of the individual corporate
defendants does not alter the Court's grant of conditional
certification -- the Plaintiffs were employed by Dallas Jones
Enterprises, worked in excess of 40 hours a week some occasions,
were paid on a percentage-of-load basis, and were not paid overtime
wages. Additionally, the objections to conditional certification
raised by Dallas Jones Enterprises were expansive incorporating the
same arguments as other joint employers.
Furthermore, Judge McKinley rejects the argument that new opt-in
forms are required because of the amendment of the complaint after
the conditional certification. Under 29 U.S.C. Section 216(b), an
employee becomes a 'party plaintiff' to a FLSA action by giving
'consent in writing' and filing 'such consent in the court in which
such action is brought.' Once employees opt in to a FLSA collective
action, "these plaintiffs become 'party plaintiffs,' enjoying 'the
same status in relation to the claims of the lawsuit as do the
named plaintiffs.'" "Congressional intent would not be advanced by
a requirement that new consents to join be submitted by opt-in
plaintiffs, who may sometimes number in the hundreds, in order for
them to remain as full-fledged plaintiffs" when amendments to the
complaint are made.
For these reasons, Judge McKinley denies the Motions to Dismiss.
A full-text copy of the Court's Aug. 12, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/yuccbz28 from
Leagle.com.
DALTON POWER: Scheduling Order Entered in Bird Class Action
------------------------------------------------------------
In the class action lawsuit captioned as DANIEL BIRD v. DALTON
POWER GROUP, INC., Case No. 2:22-cv-01270-JDW (E.D. Pa.), the Court
entered a scheduling order as follows:
1. All motions to amend the Complaint August 19, 2022
and to join or add additional
parties shall be filed on or
before:
2. Affirmative expert reports, if any, November 4, 2022
are due by:
3. Rebuttal expert reports, if any, December 2, 2022
are due by:
4. The Parties shall complete all December 23, 2022
discovery by:
5. Motions for class certification, January 13, 2023
if any, shall be filed by:
A copy of the Court's order dated Aug. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3QNVK4K at no extra charge.[CC]
DIRECT ENERGY: Isabella Geriatric Files Suit in S.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Direct Energy
Business, LLC. The case is styled as Isabella Geriatric Center,
Inc., individually and on behalf of all others similarly situated
v. Direct Energy Business, LLC, Case No. 1:22-cv-05822-AKH
(S.D.N.Y., July 8, 2022).
The nature of suit is stated as Other Contract for Contract
Dispute.
Direct Energy Business -- https://business.directenergy.com/ -- is
a full-service electricity and natural gas provider, offering
premier customer service to support your business.[BN]
The Plaintiff is represented by:
James DeMay, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
900 W. Morgan Street
Raleigh, NC 27603
Phone: (704) 941-4648
Fax: (919) 600-5035
Email: jdemay@milberg.com
- and -
Victoria Jennings Maniatis, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC
100 Garden City Plaza, Ste. 500
Garden City, NY 11530
Phone: (866) 252-0878
Fax: (212) 868-1229
Email: vmaniatis@milberg.com
EDUCATIONAL CREDIT: July 18 Amended Pretrial Sched Order Modified
-----------------------------------------------------------------
In the class action lawsuit captioned as SHEILA KINCAID,
individually, and on behalf of other members of the general public
similarly situated, v. EDUCATIONAL CREDIT MANAGEMENT CORPORATION,
an unknown business entity; ECMC GROUP, an unknown business entity;
and DOES 1 100, inclusive, Case No. 2:21-cv-00863-TLN-JDP (E.D.
Cal.), the Hon. Judge Troy L. Nunley entered an order that the
Court's July 18, 2022 Amended Pretrial Scheduling Order shall be
modified to reflect the following deadlines:
1. The deadline for the Defendants to file their opposition
to Plaintiff’s motion for class certification shall be 30
days after service of the motion.
2. The deadline for Plaintiff to file her reply in support of
her motion for class certification shall be 21 days after
service of Defendants' opposition.
3. The deadline for taking the depositions of any person
submitting a declaration in support of or opposition to
the Plaintiff's motion for class certification shall be
the same as the deadline for plaintiff to file her reply.
Educational Credit is a nonprofit corporation based in Minnesota.
Since 1994, ECMC has operated in the areas of student loan
bankruptcy management and loan collection.
A copy of the Court's order dated Aug. 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3zXuYzH at no extra charge.[CC]
The Plaintiff is represented by:
Edwin Aiwazian, Esq.
Arby Aiwazian, Esq.
Tara Zabehi, Esq.
LAWYERS FOR JUSTICE, PC
410 West Arden Avenue, Suite 203
Glendale, CA 91203
Telephone: (818) 265-1020
Facsimile: (818) 265-1021
E-mail: edwin@calljustice.com
arby@calljustice.com
tara@calljustice.com
The Defendant is represented by:
Carla J. Hartley, Esq.
Cynthia C. Cheung, Esq.
DILLINGHAM & MURPHY, LLP
155 Sansome Street, Suite 700
San Francisco, CA 94104
Telephone: (415) 397-2700
Facsimile: (415) 397-3300
E-mail: cjh@dillinghammurphy.com
ccc@dillinghammurphy.com
EMPRESAS BERRIOS: Court Grants Trinidad Leave to Amend Complaint
----------------------------------------------------------------
In the case, IN RE: CLARISEL FELICIANO TRINIDAD, Chapter 13 Debtor.
CLARISEL FELICIANO TRINIDAD Plaintiff v. EMPRESAS BERRIOS, INC.,
Defendant, Case No. 21-03022 (ESL), Adv. Proc. 22-00002 (D.P.R.),
Judge Enrique S. Lamoutte of the U.S. Bankruptcy Court for the
District of Puerto Rico denies the Defendant's motion to dismiss
and grants the Plaintiff's motion for leave to amend the
complaint.
The instant adversary proceeding is before the Court upon the
motion to dismiss, as amended, filed by Berrios, the Plaintiff's
oppositions to the motion to dismiss, her motion for leave to file
an amended complaint, and Berrios' opposition to her request to
amend complaint.
The case came before the Court on June 17, 2022, for a preliminary
pretrial on the complaint filed by the Debtor/Plaintiff on Jan. 19,
2022, alleging that actions by Berrios to collect a debt discharged
in a prior bankruptcy case constituted a violation of the discharge
injunction pursuant to 11 U.S.C. Section 524. The parties were
granted 14 days to file a settlement agreement and, if no agreement
was reached, then the pending matters referred to above would be
deemed submitted. They have not reached an agreement. Thus, Judge
Lamoutte proceeds to address the Defendant's motion to dismiss and
the Plaintiff's motion for leave to amend the complaint.
Berrios moved to dismiss the complaint on March 28, 2022, and
amended the request for dismissal on June 1, 2022. On May 11, 2022,
the Plaintiff filed an opposition to the motion to dismiss, and on
May 12, 2022, filed an amended motion for leave to file an amended
complaint to add a class action pursuant to Fed. R. Civ. P. 23. On
June 9, 2022, Berrios filed an opposition to the motion for leave
to amend the complaint.
To survive a Fed. R. Civ. P. 12(b)(6) motion to dismiss, a
complaint must contain sufficient factual matter that, accepted as
true, "states a claim to relief that is plausible on its face."
Allegations in a complaint cannot be speculative and must cross
"the line between the conclusory and the factual." "An adequate
complaint must provide fair notice to the defendants and state a
facially plausible legal claim."
The Court in Hotel Airport, Inc. v. Best W. Int'l Inc., Nos.
11-2014 Bankr. LEXIS 3990, at *51-54 (Bankr. D.P.R. Sep. 18, 2014)
held that it would not dismiss an adversary proceeding based solely
on procedural grounds alone because that would elevate form over
substance and increase the cost of litigation without benefitting
either party. To dismiss on procedural grounds alone would be to
elevate form over substance. This is particularly true wherean
adversary proceeding provides more procedural protection for the
defendant than does a contested matter brought by way of motion.
Therefore, Berrios' Motion to Dismiss fails the Rule 12(b)(6)
standard. As noted by the Plaintiff, the Court has already
determined in In re Hotel Airport, Inc., that violations of a
discharge order may be brought through an adversary proceeding,
which is the Defendant's principal argument seeking dismissal.
The Debtor/Plaintiff moves the Court to file an amended complaint
pursuant to Fed. R. Civ. P. 15, made applicable to Bankruptcy
Proceedings by Fed. R. Bankr. P. 7015, to add a class action under
Fed. R. Civ. P. 23, made applicable to Bankruptcy Proceedings by
Fed. R. Bankr. P. 23, because in its motion to dismiss "the
Defendant alleges that its practice of continuing to collect
discharged debts is part of the 'guidelines Berrios had
established.'" Defendant Berrios opposes the request alleging that
the Court must first decide the motion to dismiss and that the
proposed class action does not meet the requirements of Rule 23 for
class certification.
After considering the reasons and the timing leading the Plaintiff
to file a request for leave to amend the complaint to add a class
action, that is, the statements in the initial motion to dismiss
filed by Berrios regarding its practice and guidelines, Judge
Lamoutte finds no improper purpose for the request. Therefore, he
grants the Plaintiff's request for leave to amend the complaint.
Notwithstanding, he is conscious of the decision in In re Golden,
630 B.R. 896 (Bankr. E.D. N.Y. 2021), and intends to follow his
analysis regarding motions to strike class action allegations and
class action certifications. The granting of leave to file the
amended complaint to add a class action does not mean that the
allegations cannot be questioned and that the class certification
may be opposed.
The Court may award damages resulting from a willful violation of
the discharge injunction. However, the award of damages for
violation of the discharge injunction, as in the case of a
violation of the automatic stay, must be founded on concrete,
nonspeculative evidence and cannot be based on mere speculation,
guess or conjecture. A damage award for emotional distress is
generally nominal when the behavior is associated with transmission
of collection correspondence. Subjective feelings are not per se
sufficient. The emotional harm must be significant. "Fleeting or
trivial anxiety or distress is not sufficient."
Generally, the application of the American Rule calls for each
party to bear their own litigation costs. There are exceptions to
the American Rule in fee shifting statutes and for the willful
violation of court orders. However, there is no statutory provision
for the award of attorney's fees for a violation of the discharge
injunction under 11 U.S.C. Section 524. Such an award is subject to
the Court's discretion. The Debtors have a duty to mitigate damages
when faced with violations of the discharge injunction, and must
establish that any attorney fees requested are reasonable.
In view of the foregoing, Judge Lamoutte denies the motion to
dismiss, as amended, and grants the Plaintiff's motion to amend the
complaint.
The parties are granted 60 days to conclude discovery.
A pretrial on the amended complaint is scheduled for Dec. 9, 2022,
at 10:00 a.m.
A full-text copy of the Court's Aug. 12, 2022 Opinion & Order is
available at https://tinyurl.com/2pmpnvc8 from Leagle.com.
EPIC SPORTS: Faces Montero Suit over Telephonic Sales Calls
-----------------------------------------------------------
NIKO MONTERO, individually and on behalf of all others similarly
situated v. EPIC SPORTS, INC., Case No. 1:22-cv-22464-BB (S.D.
Fla., Aug. 4, 2022) Contends that the Defendant promotes and
markets its merchandise, in part, by sending unsolicited text
messages to wireless phone users, in violation of the Telephone
Consumer Protection Act and the Florida Telephone Solicitation
Act.
The Defendant is a sporting goods retailer. To promote its goods
and services, Defendant engages in aggressive telephonic sales
calls to consumers without having secured prior express written
consent as required under the FTSA and with no regard to consumer
rights under the TCPA, says the suit.
The Plaintiff seeks an injunction and statutory damages on behalf
of herself and the Class members, as defined below, and any other
available legal or equitable remedies resulting from the unlawful
actions of Defendant.[BN]
The Plaintiff is represented by:
Andrew J. Shamis, Esq.
Garrett Berg, Esq.
SHAMIS & GENTILE P.A.
14 NE 1st Ave., Suite 705
Miami, FL 33132
Telephone: (305) 479-2299
E-mail: ashamis@shamisgentile.com
gberg@shamisgentile.com
- and -
Scott Edelsberg, Esq.
Christopher Gold, Esq.
EDELSBERG LAW, P.A.
20900 NE 30th Ave., Suite 417
Aventura, FL 33180
Telephone: (786) 289-9471
Facsimile: (786) 623-0915
E-mail: scott@edelsberglaw.com
chris@edelsberglaw.com
FFE TRANSPORTATION: Cronon Files Suit in Cal. Super. Ct.
--------------------------------------------------------
A class action lawsuit has been filed against FFE Transportation
Services, Inc. The case is styled as Dylon W. Cronon, individually
and on behalf of all others similarly situated v. FFE
Transportation Services, Inc. dba Frozen Food Express, a Delaware
Corporation, Case No. STK-CV-UOE-2022-0006572 (Cal. Super. Ct., San
Joaquin Cty., July 29, 2022).
The case type is stated as "Unlimited Civil Other Employment."
FFE -- https://www.ffeinc.com/ -- is the largest nationwide
asset-based temperature-controlled LTL transportation & warehousing
provider.[BN]
FOOD PYRAMID: Fails to Pay Proper Wages, Vera Suit Alleges
----------------------------------------------------------
SEGUNDO EUDORO LAZO VERA, individually and on behalf of all others
similarly situated, Plaintiff v. THE FOOD PYRAMID CORP.; and MARTIN
BASCH, Defendants, Case No. 1:22-cv-04860 (E.D.N.Y., Aug. 17, 2022)
seeks to recover from the Defendants unpaid wages and overtime
compensation, interest, liquidated damages, attorneys' fees, and
costs under the Fair Labor Standards Act.
Plaintiff Vera was employed by the Defendants as delivery worker.
THE FOOD PYRAMID CORP. is a New York domestic business corporation,
organized under the laws of the State of New York. [BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
Helen F. Dalton & Associates, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Telephone: (718) 263-9591
FORD MOTOR: Pacheco Sues Over Sale of Defective Motor Engines
-------------------------------------------------------------
ANTHONY PACHECO, individually and on behalf of all others similarly
situated, Plaintiff v. FORD MOTOR COMPANY, Defendant, Case
2:22-cv-11927-GCS-DRG ECF (E.D. Mich., Aug. 17, 2022) alleges
violation of the Magnuson-Moss Warranty, California Unfair
Competition Law, California False Advertising Law, and Song-Beverly
Consumer Warranty Act.
According to the complaint, the Defendant failed to provide
consumers with a safe car, and promptly warn consumers and fix or
replace a car where the manufacturer learns of a defect that
implicates serious safety issues.
The Defendant manufactures and sells Ford Escapes, Ford Mavericks,
and Lincoln Corsairs that were dangerously defective and prone to
catching fire while in operation. Then, though Ford knew or should
have known of the fire risk prior to launching the vehicles, it did
nothing to promptly warn owners and lessees, instead waiting over a
year to announce a safety recall. And while Ford now is
implementing a "fix" to prevent these vehicles from catching on
fire, it has chosen not to design or issue a bona fide fix that
addresses the leaking engine blocks, but rather to maintain the
risk of engine block leaks while only mitigating the risk that
engine fluids and vapors will ignite, says the suit.
Ford Motor Company designs, manufactures, and services cars and
trucks. The Company also provides vehicle-related financing,
leasing, and insurance through its subsidiary. [BN]
The Plaintiff is represented by:
Steve W. Berman, Esq.
Thomas E. Loeser, Esq.
Abigail D. Pershing, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1301 Second Avenue, Suite 2000
Seattle, WA 98101
Telephone: (206) 623-7292
Facsimile: (206) 623-0594
Email: steve@hbsslaw.com
toml@hbsslaw.com
- and -
E. Powell Miller, Esq.
Sharon S. Almonrode
Dennis A. Lienhardt (P81118)
THE MILLER LAW FIRM PC
950 W. University Drive, Suite 300
Rochester, MI 48307
Telephone: (248) 841-2200
Email: epm@millerlawpc.com
ssa@millerlawpc.com
dal@millerlawpc.com
FRANK'S PAINTING: Lopez Seeks Unpaid Overtime Under FLSA, NYLL
--------------------------------------------------------------
SERGIO LOPEZ, individually and on behalf of all others similarly
situated v. FRANK'S PAINTING OF LI, LLC, FRANCO OLIVARIO,
individually and in his official capacity, and any other related
persons and/or entities, Case No. 2:22-cv-04541 (E.D.N.Y., Aug. 2,
2022) seeks to recover unpaid overtime which the Defendants failed
to pay in violation of the Fair Labor Standards Act and the New
York Labor Law.
The Plaintiff's claims under the FLSA are brought as a collective
action, pursuant to 29 U.S.C. section 216(b), on behalf of himself
and on behalf of all other similarly situated persons who were/are
employed by the Defendants as painters, laborers, and other similar
non-exempt positions, who were/are not paid overtime at a rate of
one and one-half times their regular rate of pay for all hours
worked in excess of 40 hours per workweek for the period of three
years prior to the date of the filing of this complaint to the date
of the final disposition of this action.
The Plaintiff worked as a painter and laborer for the Defendants
from 2010 through December 2021. The Plaintiff regularly worked
over 40 hours per week, typically around 56 hours per week,
throughout his employment.
Frank's painting of LI, LLC is a specialty contractor that serves
the Levittown, New York area and specializes in finishes.[BN]
The Plaintiff is represented by:
Laura R. Reznick, Esq.
BELL LAW GROUP, PLLC
116 Jackson Ave.
Syosset, NY 11791
Telephone: (516) 280-3008
E-mail: lr@belllg.com
FRANKLIN WIRELESS: Reschedule of Class Cert. Hearing Sought
-----------------------------------------------------------
In the class action lawsuit captioned as MOHAMMED USMAN ALI,
Individually and on Behalf of All Others Similarly Situated, v.
FRANKLIN WIRELESS CORP., et al., Case No. 3:21-cv-00687-AJB-MSB
(S.D. Cal.), the Parties ask the Court to enter an order
rescheduling the hearing on Lead Plaintiff's motion for class
certification for a later date at the Court's convenience.
Franklin Wireless is engaged in the design, manufacture and sale of
broadband wireless data communication products.
A copy of the Parties' motion dated Aug. 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3SZH2cw at no extra charge.[CC]
The Lead Counsel for the Class is represented by:
Jennifer Pafiti, Esq.
Jeremy A. Lieberman, Esq.
Austin P. Van, Esq.
POMERANTZ LLP
1100 Glendon Avenue, 15th Floor
Los Angeles, CA 90024
Telephone: (310) 405-7190
E-mail: jpafiti@pomlaw.com
jalieberman@pomlaw.com
avan@pomlaw.com
- and -
Lesley F. Portnoy, Esq.
THE PORTNOY LAW FIRM
1800 Century Park East, Suite 600
Los Angeles, CA 90067
Tel: (310) 692-8883
Facsimile: (212) 697-7296
E-mail: lesley@portnoylaw.com
The Counsel for the Defendants, are:
Stephen M. Lobbin, Esq.
SML AVVOCATI P.C. POMERANTZ LLP
888 Prospect Street, Suite 200
La Jolla, CA 92037
Telephone: (949) 636-1391
E-mail: sml@smlavvocati.com
FRONTWAVE CREDIT: Ward-Howie Wins Bid to Remand Suit to State Court
-------------------------------------------------------------------
Judge Cathy Ann Bencivengo of the U.S. District Court for the
Southern District of California grants the Plaintiff's motion to
remand to state court the lawsuit titled ELAINE WARD-HOWIE, on
behalf of herself and all others similarly situated, Plaintiff v.
FRONTWAVE CREDIT UNION, Defendant, Case No. 22-CV-890-CAB-JLB (S.D.
Cal.).
Plaintiff Ward-Howie filed the putative class action lawsuit in the
Superior Court of the State of California for the County of San
Diego on April 29, 2022. On June 17, 2022, Defendant Frontwave
removed the action to this Court on the grounds that subject matter
jurisdiction exists under the Class Action Fairness Act ("CAFA"),
28 U.S.C. Section 1332(d). Ten days later, Frontwave filed a motion
to dismiss for failure to state a claim, and ten days after that,
Plaintiff filed a motion to remand on the grounds that Frontwave
had not satisfied its burden to establish that the amount in
controversy exceeds CAFA's jurisdictional threshold.
Separately, the Court ordered the parties to show cause why the
case should not be remanded for lack of diversity or under CAFA's
local controversy exception. For the reasons set forth in this
Order, the Plaintiff's motion to remand is granted, rendering it
unnecessary to decide whether the local controversy exception also
requires or permits remand.
The Plaintiff, who has a checking account with Frontwave, alleges
in the complaint that in certain circumstances, Frontwave charges
overdraft fees in violation of the account agreement. Specifically,
the complaint alleges that Frontwave charges an overdraft fee for
transactions made with a debit card at a time when sufficient funds
were available in the account because in the time between when the
debit card transaction is made and when it settles, an intervening
transaction on the checking account reduces the amount of funds to
less than the amount of the prior debit card transaction. The
complaint calls these transactions "Authorize Positive, Purportedly
Settle Negative Transactions" or "APPSN Transactions."
The complaint asserts claims for breach of contract and violation
of California's unfair competition law, California Business and
Professions Code ("UCL"), arising out of the overdraft fees charged
for these APPSN Transactions. The Plaintiff seeks certification of
a class consisting of all Frontwave checking accountholders, who
were charged overdraft fees on APPSN Transactions during the
applicable statute of limitations. The complaint prays for relief
in the form of restitution of the allegedly wrongful overdraft
fees, disgorgement of ill-gotten gains, actual, statutory, punitive
and exemplary damages, as permitted by law, and attorney's fees.
Notably, Judge Bencivengo observes, notwithstanding extensive
argument by both sides concerning the valuation of injunctive
relief as part of the amount in controversy for CAFA jurisdiction,
the complaint does not seek injunctive relief. The words "enjoin,"
"injunction" or "injunctive" do not appear in the complaint.
Although the complaint is silent as to the amount of damages sought
by the putative plaintiff class, Frontwave contends in its notice
of removal that over $5 million is in controversy. Frontwave's
estimate of the amount in controversy has four categories: (1) the
amount of APPSN fees it had charged during the class period as of
the date the complaint was filed; (2) the amount of APPSN fees it
purportedly intends to continue charging through class
certification in this case; (3) future APPSN fees for the next four
years; and (4) attorney's fees.
For the first category, the notice of removal alleges that
Frontwave's AAPSN overdraft fee revenue for the four years
preceding the filing of the complaint "could be $2.27 million." For
the second category, Frontwave estimates that if a class is not
certified until a year from now, that could mean an additional
approximately $500,000 in damages.
For the third category, in seeming disregard of the complaint
itself, Frontwave contends that the complaint seeks injunctive
relief preventing Frontwave from charging AAPSN fees in the future
and claims that the cost of this injunction would be the value of
such fees for the next four years, which Frontwave estimates to be
$2.77 million. Finally, Frontwave contends that the amount of the
Plaintiff's potential attorney's fees through trial should be
included in the calculation and argues that such fees will be at
least $1 million.
In her motion to remand, the Plaintiff disputes Frontwave's
allegations as to the amount in controversy and argues that
Frontwave's estimates are speculative, not supported by any
evidence, and implausible. The majority of Frontwave's opposition,
meanwhile, focuses on whether the Plaintiff is making a facial or a
factual attack on Frontwave's jurisdictional allegations, arguing
that she is making only a facial attack, and that Frontwave need
not provide any evidence to support its allegations concerning the
amount in controversy.
Although the Court finds that the Plaintiff is challenging the
truth of the Defendant's jurisdictional allegations by making a
reasoned argument as to why any assumptions on which they are based
are not supported by evidence, her motion to remand succeeds
regardless of whether it is deemed a facial or factual attack.
Specifically, assuming the truth of Frontwave's calculations, Judge
Bencivengo finds they are insufficient to invoke federal
jurisdiction because they include the valuation of an injunction
prohibiting Frontwave from charging overdraft fees for APPSN
Transactions. As stated, the complaint does not ask for such an
injunction, nor indeed any injunctive relief. Frontwave appears to
rely on the complaint's prayer for a declaration that Frontwave's
assessment of overdraft fees on APPSN Transactions is a breach of
contract and unfair, fraudulent, and unlawful, for its argument
about the existence of injunctive relief. Frontwave argues that the
only way for it to comply with that kind of judicial declaration
would be to stop charging APPSN fees. The Court is not persuaded.
In other words, Judge Bencivengo opines, the Plaintiff does not,
and by its own admission, cannot, seek to enjoin Frontwave from
charging overdraft fees for APPSN Transactions. Although the
outcome of this case might lead Frontwave to make the business
decision to change its current procedures for assessing overdraft
fees on APPSN Transactions going forward or to amend its contracts
to avoid future lawsuits like this one, the complaint does not seek
any injunctive relief that would require Frontwave to make any
changes to its disclosures or to cease assessing overdraft fees on
APPSN Transactions.
In sum, Frontwave alleges that it would cost Frontwave $2.77
million in foregone future overdraft fees for APPSN Transactions if
the Court enters an injunction prohibiting the recovery of such
fees. The complaint, however, does not seek such an injunction.
Accordingly, the $2.77 million in future overdraft fees that such
an injunction might cost Frontwave is not in controversy in this
case.
Without this $2.77 million attributable to injunctive relief that
is not sought in this case, Frontwave's calculation of the amount
in controversy consists of (1) $2.27 million for past overdraft
fees on APPSN Transactions as of the date the complaints was filed;
(2) $500,000 for overdraft fees Frontwave expects to assess on
APPSN Transactions up to the date of class certification; and (3)
at least $1 million in attorney's fees. Assuming that these
allegations are plausible and based on reasonable assumptions, and
even doubling the amount of attorney's fees estimated by Frontwave,
the total does not exceed $5 million.
Because Frontwave's estimate of the amount in controversy based on
the relief actually sought by the Plaintiff class in this case does
not exceed $5 million, Frontwave's allegations are insufficient on
their face to establish federal jurisdiction, Judge Bencivengo
holds.
For these reasons, Judge Bencivengo grants the Plaintiff's motion
to remand, and the case is remanded to the Superior Court of the
State of California for the County of San Diego.
A full-text copy of the Court's Order dated Aug. 11, 2022, is
available at https://tinyurl.com/4h25wsrm from Leagle.com.
FULL SPECTRUM: Parties File Conditional Class Certification Bid
---------------------------------------------------------------
In the class action lawsuit captioned as HAYLEY CROZIER,
individually and on behalf of all other similarly situated
individuals, v. FULL SPECTRUM PEDIATRIC THERAPY, INC. and LANA K.
BROOME, Case No. 3:22-cv-00106 (M.D.Tenn.), the Parties jointly
move the Court for an order conditionally certifying a class of
individuals and authorizing the notice and consent forms to be sent
to these individuals in accordance with Section 16(b) of the Fair
Labor Standards Act (FLSA).
On February 16, 2022, the Plaintiff Crozier initiated this action
by filing a Collective Action Complaint under the FLSA seeking
unpaid minimum and overtime wages and liquidated damages for hourly
employees employed by one or more of the Defendants.
Since the filing of the initial Collective Action Complaint, the
Parties have come to a mutually agreeable method of dissemination
and form of notice in an effort to compromise to avoid the need for
a Court determination.
Full Spectrum is a medicare certified physical therapy, speech
pathology, and/or occupational therapy provider.
A copy of the Parties' motion dated Aug. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3Tcupel at no extra charge.[CC]
The Plaintiff is represented by:
Curt M. Masker, Esq.
THE MASKER FIRM
810 Dominican Drive, Suite 314
Nashville, TN 37228
Telephone: (615) 823-1737
E-mail: curt@maskerfirm.com
The Defendants are represented by:
Suzanne G. Marsh, Esq.
BATSON NOLAN PLC
121 S. Third Street
Clarksville, TN 37040
Telephone: (931) 647-1501
E-mail: sgmarsh@batsonnolan.com
GINNY'S INC: Bids for Summary Judgment, Class Status Due Dec. 15
----------------------------------------------------------------
In the class action lawsuit captioned as Loadholt v. Ginny's, Inc.,
Case No. 1:22-cv-03980 (S.D.N.Y.), the Hon. Judge Lewis J. Liman
entered an order that any motions for summary judgment or class
certification are due by December 15, 2022.
Third-party discovery is stayed pending application to the Court by
Plaintiff.
The suit alleges violation of the The Americans with Disabilities
Act of 1990 (ADA).
Ginny's, Inc. specializes in kitchen, bedding, and bath
merchandise.[CC]
GMRI INC: Rafferty Files Suit Over Failure to Pay Minimum Wages
---------------------------------------------------------------
RACQUEL RAFFERTY, on behalf of herself and all others similarly
situated, Plaintiff v. GMRI, INC., and DARDEN RESTAURANTS, INC.,
Defendants, Case No. 2:22-cv-00342-RAJ-LRL (E.D. Va., August 16,
2022) is a collective action complaint brought against the
Defendant to recover unpaid wages and other relief as a result of
the Defendant's alleged violations of the Fair Labor Standards Act
and the Virginia Wage Payment Act.
The Plaintiff has worked for the Defendants as a bartender from
2008.
According to the complaint, although the Plaintiff and other
similarly situated employees routinely worked hours in dual jobs,
the Defendant did not pay them all of the wages they were due on
the regularly scheduled payday because of the Defendant's improper
application of a tip credit against wages due.
As a result of the Defendants' alleged failure to pay the minimum
wages required by law, the Plaintiff and other similarly situated
employees suffered damages. Thus, on behalf of herself and all
other similarly situated restaurant workers, the Plaintiff seeks to
recover unpaid minimum wages, liquidated damages, prejudgment
interest, attorney fees, and other relief by reason of the
Defendants' violations of the Virginia Wage Payments Act.
GMRI, Inc. and Darden Restaurants, Inc. operate steak house
restaurants. [BN]
The Plaintiff is represented by:
James R. Theuer, Esq.
JAMES R. THEUER, PLLC
555 E. Main St., Suite 801
Norfolk, VA 23510
Tel: (757) 446-8047
Fax: (757) 446-8048
E-mail: jim@theuerlaw.com
GQ SOLUTIONS: Ulery Seeks Leave to Conduct Class Certification
--------------------------------------------------------------
In the class action lawsuit captioned as DAVID ULERY, individually
and on behalf of all others similarly situated, v. GQ SOLUTIONS,
LLC, Case No. 1:22-cv-01581 (D. Colo.), the Plaintiff requests that
the Court enter an Order as follows:
1. That Leave of Court be granted to conduct Class
Certification and damages related discovery from GQ,
including third-party discovery as necessary, in support
of Class Certification and final damages judgment;
2. That the Court reserve jurisdiction on the issue of
damages against GQ and to otherwise reserve ruling on a
final damages determination against GQ until the
completion of discovery and a ruling on Class
Certification; and
3. That Plaintiff be permitted to seek a final default
judgment against GQ, both as to the individual Plaintiff
and the putative Class, upon completion of Class
Certification and damages discovery from GQ and the
Court’s ruling on Class Certification.
A copy of the Plaintiff's motion to certify class dated Aug. 4,
2022 is available from PacerMonitor.com at https://bit.ly/3ChaqVB
at no extra charge.[CC]
The Plaintiff is represented by:
Joshua H. Eggnatz., Esq.
EGGNATZ | PASCUCCI
7450 Griffin Road, Suite 230
Davie, FL 33314
Telephone: (954) 889-3359
E-mail: JEggnatz@JusticeEarned.com
- and -
Jordan Richards, Esq.
JORDAN RICHARDS, PLLC
1800 SE 10th Ave. Suite 205
Fort Lauderdale, FL 33316
Telephone: (954) 871-0050
E-mail: Jordan@jordanrichardspllc.com
Jake@jordanrichardspllc.com
HARTFORD FUNDING: Johnson Files TCPA Suit in E.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Hartford Funding LTD.
The case is styled as Antwane Johnson, individually and on behalf
of all others similarly situated v. Hartford Funding LTD., Case No.
2:22-cv-04322-GRB-ST (E.D.N.Y., July 22, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Hartford Funding Ltd. -- https://hartfordfunding.com/ -- is a full
service mortgage banker licensed by the NYS Department of Financial
Services.[BN]
The Plaintiff is represented by:
Yitzchak Kopel, Esq.
BURSOR & FISHER, P.A.
888 Seventh Ave
New York, NY 10019
Phone: (646) 837-7127
Fax: (212) 989-9163
Email: ykopel@bursor.com
HERE WE COME: Souza Seeks Overtime Pay Under FLSA, NYLL
-------------------------------------------------------
INOCENTE SOUZA, individually and on behalf of all others similarly
situated v. HERE WE COME INC. d/b/a JOHN ANTHONY'S PIZZERIA and
ANGELO GENOVA, as an individual, Case No. 2:22-cv-04535 (E.D.N.Y.,
Aug. 2, 2022) seeks to recover compensatory damages and liquidated
damages for the Defendants' egregious violations of both the New
York Labor Law and the Fair Labor Standards Act arising out of the
the Plaintiff's employment with the Defendants.
According to the complaint, the Defendants did not pay the
Plaintiff an extra hour at the legally prescribed minimum wage for
each day worked over (0) hours, a blatant violation of the spread
of hours provisions contained in the NYLL.
The Plaintiff is a a food preparer, cook and dishwasher while
performing related miscellaneous duties for the Defendants, from
March 2019 until May 2022.[BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Telephone: (718) 263-9591
Facsimile: (718) 263-9598
HONEYWELL INTERNATIONAL: Alencaster Suit Removed to C.D. California
-------------------------------------------------------------------
The case styled as Fernando Alencaster, on behalf of himself and
all others similarly situated v. Honeywell International, Inc.,
Does 1 through 50, inclusive, Case No. 22STCV18534 was removed from
the Los Angeles Superior Court, to the U.S. District Court for the
Central District of California on July 20, 2022.
The District Court Clerk assigned Case No. 2:22-cv-05014-SPG-JEM to
the proceeding.
The nature of suit is stated as Other Labor.
Honeywell International Inc. -- https://www.honeywell.com/us/en --
is an American publicly traded, multinational conglomerate
corporation headquartered in Charlotte, North Carolina.[BN]
The Plaintiff is represented by:
Marcus Bradley, Esq.
Kiley Lynn Grombacher, Esq.
Lirit Ariella King, Esq.
BRADLEY GROMBACHER LLP
31365 Oak Crest Drive Suite 240
Westlake Village, CA 91361
Phone: (805) 270-7100
Fax: (805) 618-2939
Email: mbradley@bradleygrombacher.com
kgrombacher@bradleygrombacher.com
lking@bradleygrombacher.com
The Defendants are represented by:
Tyler Mark Paetkau, Esq.
Olga Savage, Esq.
HUSCH BLACKWELL LLP
1999 Harrison Street Suite 700
Oakland, CA 94612
Phone: (510) 768-0660
Fax: (510) 768-0651
Email: tyler.paetkau@huschblackwell.com
HSBC BANK: Palmer's Bid to Compel Further Written Discovery Denied
------------------------------------------------------------------
In the case, LAWRENCE PALMER, et al., Plaintiffs v. HSBC BANK, USA,
N.A., Defendant, Case No. 22-cv-02178-VC (LB) (N.D. Cal.),
Magistrate Judge Laurel Beeler of the U.S. District Court for the
Northern District of California, San Francisco Division, denies the
Plaintiff's request to compel further written discovery responses.
The case began as a putative class action against financial
institutions where the Plaintiff asserted claims under state and
federal law. The operative Third Amended Complaint includes the
following claims: (1) FCRA violations (negligent and intentional);
(2) California Bus. & Prof. Code Section 17200 (UCL) violations;
(3) California Consumer Credit Reporting Agencies Act (Civil Code
Section 1785 et seq.) violations; (4) California Invasion of
Privacy Act, Cal. Penal Code Sections 630, violations; (5)
Comprehensive Computer Data Access and Fraud Act, Cal. Penal Code
Section 502, violations; (6) Intrusion Upon Seclusion; and (7)
Public Disclosure of Private Facts.
The original named Plaintiff and proposed class representative,
Lawrence Palmer, died in September 2021. The Plaintiff moved to
substitute Mr. Palmer's spouse, Jeanie Palmer, for Mr. Palmer. The
Court found that Jeannie Palmer was not an adequate representative
of the class and was not properly substituted for purposes of the
state-law claims and that joinder of the defendants named in the
original case was not proper. In April 2022, the Court severed the
original case (3:20-cv-06309-VC) into four separate actions
(3:22-cv-02177-VC, 3:22-cv-02178-VC, 3:22-cv-02179-VC,
3:22-cv-02180-VC). It also struck the class allegations and
dismissed all of the claims except Ms. Palmer's individual federal
claim.
Given the trial court's recent orders, the only pending claim is
for alleged violations of the FCRA. The Defendant has moved for
summary judgment on this claim on grounds that it did not violate
the FCRA because it gave the Plaintiff's husband, Lawrence Palmer,
a "firm offer of credit." In this regard, 15 U.S.C. Section
1681b(c)(1)(B)(i) provides that a consumer reporting agency may
furnish a consumer report relating to any consumer pursuant to
subparagraph (A) or (C) of subsection (a)(3) in connection with any
credit or insurance transaction that is not initiated by the
consumer only if the transaction consists of a firm offer of credit
or insurance."
In opposition to the Defendant's motion for summary judgment, the
Plaintiff states: "The issue in this case is whether the Defendant
had a 'permissible purpose' to procure his credit reports on an
inquiry basis." In sum, the live claims and defenses are narrow and
involve only whether the Defendant violated the FCRA by obtaining
Mr. Palmer's credit report.
The parties dispute whether the Defendant must serve supplemental
responses to the Plaintiff's written discovery requests. The
Plaintiff argues that the Defendant's responses to his (1) Requests
for Production Nos. 1-11, 13-26, 29-38 and (2) Interrogatories Nos.
1-33 are improper or incomplete. He also challenges the Defendant's
failure to (1) provide a privilege log, (2) verify the responses to
the interrogatories "under oath," and (3) produce unredacted copies
of responsive documents.
The Defendant counters that the material the Plaintiff's seeks is
beyond the scope of permissible discovery because (1) the only
remaining claims are his individual claims under the Fair Credit
Reporting Act and (2) it has produced all the documents it has
relating to his "FCRA claims, including the firm offer of credit
that was mailed to him, a copy of the contract it entered into with
Equifax to pull the credit of individuals who met a set of
preselection criteria, its internal policies regarding FCRA
compliance, and evidence confirming that a majority of those
consumers who were sent the same firm offer of credit as the
Plaintiff were able to open credit cards with the Defendant."
Judge Beeler first determines whether the information sought is
relevant. She finds that the Plaintiff's request to compel the
Defendant to provide further responses to Requests for Production
Nos. 1-11, 13-26, 29-38 and Interrogatories Nos. 1-33 is
unjustified because most of the material and information sought is
not within the scope of permissible discovery. Therefore, the
Plaintiff's request to compel supplemental discovery responses is
denied without prejudice. In any further discovery letter, the
parties must (1) specifically identify each disputed request for
production or interrogatory and (2) provide each party's view on
why the information sought in each request is or is not
discoverable.
The Plaintiff raised several other issues: (1) the lack of a
privilege log, (2) verification "on information and belief," and
(3) relevancy redactions. Regarding the privilege log, if the
Defendant is withholding any documents based solely on a claim of
privilege, it should "produce a privilege log that is sufficiently
detailed for the opposing party to assess whether the assertion of
privilege is justified." Because the Defendant appears to primarily
rely on other objections to its discovery requests (e.g.,
relevancy, proportionality), it need not produce a privilege log at
this time.
On the verification issue, Judge Beeler finds that it is not
necessarily improper to include "information and belief" language
in the verification of interrogatory responses. Because the
individual interrogatory responses are not made on information and
belief, the Defendant's verification statement complies with the
oath requirement in Rule 33(b)(3).
Concerning relevancy redactions, so-called relevancy redactions are
not prohibited but are generally disfavored outside of certain
limited circumstances.
Finally, the Plaintiff argues that the Defendant "has improperly
produced documents that are wholly redacted," but has not provided
any other details to help the court evaluate whether the redactions
are justified or not. Judge Beeler declines to order the Defendant
to produce unredacted versions of all documents it has produced.
She denies the Plaintiff's request to compel supplemental responses
to its interrogatories and requests for production without
prejudice. Most of the material and information sought in his
interrogatories and requests for production is not relevant and
proportional to the needs of the case, which now involves a single
claim for an individual FCRA violation.
A full-text copy of the Court's Aug. 12, 2022 Discovery Order is
available at https://tinyurl.com/2p96y24w from Leagle.com.
IEC CORP: Court Refuses to Revisit Arbitration Order in Britt Suit
------------------------------------------------------------------
In the case, KAREEM BRITT, et al., Plaintiffs v. IEC CORP., et al.,
Defendants, Case No. 20-cv-60814-ALTMAN (S.D. Fla.), Judge Roy K.
Altman of the U.S. District Court for the Southern District of
Florida denies the Plaintiffs':
(1) Motion for Reconsideration under Rule 59(e); and
(2) Motion to Certify the Order Compelling Arbitration for
Interlocutory Review.
The Plaintiffs, Kareem Britt and Sharon Henry, are former students
at the Florida Career College ("FCC"). When they enrolled, both
Britt and Henry agreed to arbitrate any claims they might later
have against the school. In 2016, the Department of Education
("DOE") promulgated several regulations that required schools
participating in a federal student-loan program to refrain from
enforcing any pre-dispute arbitration agreements or class-action
waivers they'd signed with their students (the "Old Regulations").
To comply with the Old Regulations, FCC sent its students a notice
updating their enrollment agreements.
In the Notice, FCC waived its right to arbitrate -- and made clear
that its waiver would "apply to your arbitration agreement with FCC
for any period of time during which these regulations are in
effect." In July 2020, while the case was pending, a new set of
regulations took effect (the "New Regulations"). The New
Regulations removed the Old Regulations' requirement that
participating schools waive their arbitration agreements and
class-action bans. On this crucial issue, it provided as follows:
"Under final Section 685.300, paragraphs (d) through (i) finalized
in the 2016 final regulations covering class action bans and
pre-dispute arbitration agreements are removed from the
regulations."
When the New Regulations came into effect, the Court allowed FCC to
re-brief its then-pending motion to compel arbitration. In that
second round of motions practice, FCC argued that, because the
Notice's arbitration waiver was expressly limited to "any period of
time during which the Old Regulations are in effect," FCC was no
longer precluded from enforcing the arbitration agreements Britt
and Henry had signed in 2018 and 2016, respectively. Finding this
argument persuasive, the Court granted FCC's Motion to Compel
Arbitration. Since then, the parties agree, neither the facts nor
the law has changed.
Unhappy with the ruling, the Plaintiffs have now filed both a
Motion for Reconsideration and a Motion to Certify.
The Plaintiffs' Motion for Reconsideration turns on their view that
the Court's Order resulted in four "clear errors" and a
not-insignificant helping of "manifest injustice." In the main,
they contend as follows: (1) "the Court failed to acknowledge that
arbitration is a question of venue determined at the time of
filing"; (2) "the Court's decision rests on an argument not
advanced by the Parties"; (3) "the Court's decision misinterprets
and misapplies a condition subsequent"; (4) "the Court did not
construe ambiguity in the Supplement against FCC"; and (5) "the
Court's decision is patently unfair and contravenes public
policy."
In their first argument for reconsideration, the Plaintiffs contend
that the Court's Order was "clearly erroneous" because it "failed
to acknowledge" that arbitration clauses implicate questions of
venue, which (the Plaintiffs say) must be determined on the facts
as they existed at the time the complaint was filed. But, as the
Defendant points out, this (purported) connection between
arbitration clauses and the law of venue, appeared nowhere in the
Plaintiffs' briefing on the Motion to Compel.
With the Plaintiffs' venue distraction out of the way, Judge Altman
holds that the Court can focus on what courts in the Circuit have
actually said about "timing" in the context of orders to compel
arbitration: "When enforcing an arbitration provision," one of our
wiser colleagues has written, "a court may direct the case to
arbitration at any time before trial." As the Eleventh Circuit has
explained, a litigant's right to compel arbitration is revived when
there's an intervening change in the controlling law or a factual
development that unexpectedly changes the scope or theory of the
case. Since arbitration clauses don't implicate the laws of venue
-- and because the Court properly considered, in adjudicating the
Motion to Compel, the sea change the New Regulations effected in
the parties' relationship -- the Plaintiffs' first argument for
reconsideration is denied.
In their second argument for reconsideration, the Plaintiffs say
that the Court's decision "rested on arguments not advanced by the
parties." They advance along two fronts. First, they insist that
the Court "picked up" an argument FCC "failed to make: that when
the occurrence of the condition subsequent caused the Defendants'
waiver to 'expir,' the Defendants became entitled to reverse the
performance that they had rendered under the waiver." Second, they
fault the Court for deciding the case "outside the adversarial
issues presented to it by the parties."
Judge Altman finds both arguments unavailing. He denies the
Plaintiffs' second ground for reconsideration. He finds that the
Plaintiffs are correct that neither party "took up" FCC's right to
reverse a past performance. But they're wrong to suggest that the
Court's Order had anything to do with past performance. On the
contrary, the Order had everything to do with absolving FCC, in
light of the triggering of a condition subsequent, of its
obligation to perform going forward. And the Plaintiffs concede --
as they must -- that the triggering of that condition did (in fact)
absolve FCC of all future obligations.
Moreover, FCC claimed that the Old Regulations -- affecting only
the relationship between the DOE and the schools -- had no effect,
separate and apart from any written waiver by the school, on the
agreements the schools had entered into with their students. The
Court then found a district court case that said exactly that and
set out three reasons (none of which the Plaintiffs even try to
assail here) for its view that FCC's reading of the relevant
regulatory scheme was the right one. All of this was squarely
presented by the parties.
In their third argument for reconsideration, the Plaintiffs insist
that the Court misapplied the law of conditions subsequent. In
support of this claim, they point to the Notice, which (all agree)
included the following statement: "We FCC agree not to use any
predisputed arbitration agreement to stop you from bringing a
lawsuit."
But, Judge Altman finds two dispositive problems with the
Plaintiffs' position. One, they never presented this "bringing a
lawsuit" argument in their briefing on the Motion to Compel. Two,
when the condition subsequent finally kicked in -- i.e., when the
Old Regulations were no longer "in effect" -- FCC was absolved of
its promise to perform in the future. The Plaintiffs agree with
this. As a result, long before the Court issued its Order -- and,
indeed, before FCC filed its Motion to Compel -- FCC had been
absolved of fulfilling its promise. FCC was no longer obligated to
perform in the future. So, the Plaintiffs' third argument for
reconsideration is denied.
In their fourth argument for reconsideration, the Plaintiffs say
that the Court "did not construe ambiguity in the Notice against
FCC." And they've found "ambiguity" in two places: in the meaning
of the phrase "bringing a lawsuit" and on the "effect of a
condition subsequent."
Two problems with this, Judge Altman finds. One, the Plaintiffs
said precisely the opposite in their briefing on the Motion to
Compel -- where they referred to the wording of the Notice as
"clear and unambiguous." Again, this isn't the time for new
arguments the Plaintiffs haven't thought of before. Two, the Court
has already thought long and hard about the case and have agreed
with the Plaintiffs that the Notice is unambiguous -- just not in
the way they hoped. Judge Altman thus denies the Plaintiffs' fourth
ground for reconsideration.
The Plaintiffs' fifth contention -- that this result is "unfair"
and that the Court's decision will result in "manifest injustice"
-- fares no better, Judge Altman finds. They advance six arguments,
all of which are unpersuasive. Among other things, they say that
it's "unfair" for us to send them to arbitration without their
consent. But they did consent to arbitration -- in express and
unambiguous agreements they signed with FCC. They also think it's
"unfair" that their lawyers did all this work -- filing a lawsuit,
trading motions practice, collecting discovery -- only to be sent
to arbitration. But that's true of any plaintiff who "loses." So,
the Plaintiffs' fifth argument for reconsideration is denied.
In their Motion to Certify, the Plaintiffs identify six questions
that (they say) are controlling questions of law:
(1) Does the Court's decision conflict with the Eleventh
Circuit's decision in Young v. Grand Canyon University, Inc., 980
F.3d 814 (11th Cir. 2020)?
(2) At what point should a district court consider the
applicability of an arbitration waiver?
(3) Can the occurrence of a condition subsequent affect a
party's past duty to perform?
(4) Can a contractual waiver be illusory?
(5) Can an ambiguous contract be interpreted to squarely
conflict with its stated purpose?
(6) Can a district court compel arbitration on grounds not
advanced by the moving party?
Judge Altman holds that each question fails, for one reason or
another, to justify an immediate appeal. The first question isn't a
"pure" (or "controlling") question of law at all. The Plaintiffs'
second question does present a "pure question of law," but it fails
to justify an immediate appeal because they do "not meet the second
factor": that there be "'substantial ground for difference of
opinion. Their third, fourth, fifth, and sixth questions fail to
justify an immediate appeal because, among other things, they're
not "controlling of at least a substantial part of the case,"
because the Court did not "identify these questions in its Order,"
and because there aren't "substantial grounds for differences of
opinion on these questions."
For these reasons, the Plaintiffs have failed to identify a
"controlling question of law" about which there is "substantial
ground for difference of opinion" -- the first two elements of
Section 1292(b). Because the statute's standard is "conjunctive,"
Judge Altman needn't reach the third element -- whether an
immediate appeal would materially advance the ultimate termination
of the litigation. Since the Plaintiffs have thus failed to meet
their "high burden under section 1292(b)," their Motion to Certify
is denied.
The case will remain stayed and closed pending arbitration.
Every 90 days from the date of the Order, the parties will jointly
file a report on the status of their arbitration proceedings.
Within 15 days of the arbitration's conclusion, the parties will
jointly file a notice briefly describing the outcome of that
arbitration.
A full-text copy of the Court's Aug. 16, 2022 Omnibus Order is
available at https://tinyurl.com/mry4zxze from Leagle.com.
IGNITE TEAM: Fails to Pay Proper Wages, Parker Suit Alleges
-----------------------------------------------------------
MARANDA PARKER, individually and on behalf of all others similarly
situated, Plaintiff v. IGNITE TEAM PARTNERS, LLC; IMR OAK CREEK
OPCO LLC; and SHAKENBAKE INVESTMENTS, LLC, Defendants, Case No.
2:22-cv-00943-JPS (E.D. Mich., Aug. 17, 2022) seeks to recover from
the Defendants unpaid wages and overtime compensation, interest,
liquidated damages, attorneys' fees, and costs under the Fair Labor
Standards Act.
Plaintiff Parker was employed by the Defendants as staff.
IGNITE TEAM PARTNERS, LLC is a consulting agency that offers
professional consulting services to small and medium-sized
enterprises (SMEs) in the Bay Area.
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Telephone: (718) 263-9591
ILLUMINATE EDUCATION: Cranor Files Suit in C.D. California
----------------------------------------------------------
A class action lawsuit has been filed against Illuminate Education,
Inc. The case is styled as Lucas Cranor, individually and on Behalf
of All Others Similarly Situated v. Illuminate Education, Inc.,
Case No. 8:22-cv-01404-JVS-ADS (C.D. Cal., July 28, 2022).
The nature of suit is stated as Other P.I. for Contract Dispute.
Illuminate Education -- https://www.illuminateed.com/ -- provides
innovative tools that educators can use to promote student and
educator success.[BN]
The Plaintiff is represented by:
Laurence D King, Esq.
Blair Elizabeth Reed, Esq.
KAPLAN FOX AND KILSHEIMER LLP
1999 Harrison Street Suite 1560
Oakland, CA 94612
Phone: (415) 772-4700
Fax: (415) 772-4707
Email: lking@kaplanfox.com
breed@kaplanfox.com
- and -
Justin B. Farar, Esq.
KAPLAN FOX AND KILSHEIMER LLP
12400 Wilshire Boulevard Suite 8460
Los Angeles, CA 90025
Phone: (310) 614-7260
Fax: (310) 614-7260
Email: jfarar@kaplanfox.com
IMPERIAL MOBILE: Ochoa Seeks OT Premium Pay Under NYLL, FLSA
------------------------------------------------------------
ADRIAN PADILLA OCHOA, individually and on behalf of all other
persons similarly situated, v. IMPERIAL MOBILE CAR WASH INC. d/b/a
"IMPERIAL HAND CAR WASH" and JOHN DOE a/k/a "DOMINO," Jointly and
Severally, Case No. 1:22-cv-04579 (E.D.N.Y., Aug. 3, 2022) seeks to
recover overtime premium pay under the New York Labor Law and the
Fair Labor Standards Act.
Plaintiff Ochoa worked as car wash attendant for the Defendants
from 2013 to February 2022.
Imperial Car Wash is a car wash located at 69-03 Woodhaven
Boulevard, Rego Park, New York. Imperial Car Wash provides car
washing and detailing services and services anywhere from 450 to
800 cars per day.[BN]
The Plaintiff is represented by:
Douglas B. Lipsky, Esq.
Milana Dostanitch, Esq.
LIPSKY LOWE LLP
420 Lexington Avenue, Suite 1830
New York, NY 10170-1830
Telephone: (212) 392-4772
E-mail: doug@lipskylowe.com
milana@lipskylowe.com
INFUCARE RX: Sharfman Files Bid for Class Certification
-------------------------------------------------------
In the class action lawsuit captioned as MARC IRWIN SHARFMAN, M.D.,
P.A., a Florida corporation, individually and as the representative
of a class of similarly-situated persons, v. INFUCARE RX LLC, a
Pennsylvania limited liability company, and INFUCARE RX
PENNSYLVANIA INC., a Pennsylvania corporation, Case No.
6:21-cv-00525-WWB-DCI(M.D. Fla.), the Plaintiff asks the Court to
enter an order certifying the following Class A:
"All persons or entities who were successfully sent a
Fax, on or about March 10, 2021, March 11, 2021, or March
18, 2021, that states: "Infucare Rx is now a Preferred
Provider," and/or "Selected by Cigna's eviCore healthcare
for Specialty and Non-Specialty Infusions Services,"
and/or "Selected by Cigna's eviCore healthcare for
Specialty Pharmacy and Infusion Therapy Services."
In the alternative, if the Court finds it necessary to distinguish
between Faxes successfully sent to "stand-alone" fax machines
versus Faxes that were successfullyCase 6:21-cv-00525-WWB-DCI
Document 50 Filed 08/05/22 Page 10 of 39 PageID 264
sent to an "online fax service," Plaintiff seeks to certify the
following class:
Class B
"All persons or entities who were successfully sent a Fax
to their stand-alone fax machine, on or about March 10,
2021, March 11, 2021, or March 18, 2021, that states:
"Infucare Rx is now a Preferred Provider," and/or
"Selected by Cigna's eviCore healthcare for Specialty and
Non-Specialty Infusions Services," and/or "Selected by
Cigna's eviCore healthcare for Specialty Pharmacy and
Infusion Therapy Services."
Excluded from the proposed Classes are
practices/physicians with whom Infucare claims to "have a
relationship," including those that have signed
declarations regarding permission. Plaintiff also seeks
an Order from the Court appointing Plaintiff as class
representative and appointing the law firm of Anderson +
Wanca as class counsel.
In violation of the Telephone Consumer Protection Act of 1991
(TCPA), the Defendant successfully sent 11,417 unsolicited fax
advertisements (the Faxes) to 8,990 unique fax numbers in
broadcasts conducted on March 10, 2021 and March 11, 2021, and on
March 18, 2021, advertising their Immunoglobulin Therapy and
Infusion Therapy services.
Infucare utilized third-party fax broadcaster Concord III, LLC to
transmit the Faxes to a list of recipients Infucare purchased from
third-party data provider Definitive Healthcare. Infucare did not
have prior express permission to send the Faxes.
InfuCare provides healthcare services. The Company offers infusion
therapy and specialty pharmacy services to patients in the homecare
setting.
A copy of the Plaintiff's motion to certify class dated Aug. 5,
2022 is available from PacerMonitor.com at https://bit.ly/3PTKoeA
at no extra charge.[CC]
The Plaintiff is represented by:
Ryan M. Kelly, Esq.
Ross M. Good, Esq.
Wallace C. Solberg, Esq.
ANDERSON + WANCA
3701 Algonquin Road, Suite 500
Rolling Meadows, IL 60008
Telephone: (847) 368-1500
Facsimile: (847) 368-1501
E-mail: rkelly@andersonwanca.com
rgood@andersonwanca.com
wsolberg@andersonwanca.com
INSIDER INC: Discloses Digital Users' Personal Info, Roby Says
--------------------------------------------------------------
DARMEL ROBY, JENNIFER JUENKE, JAMIE SPRITZER, and TIMOTHY STOKES,
individually and on behalf of all others similarly situated,
Plaintiffs v. INSIDER, INC., Defendant, Case No. 1:22-cv-06834
(S.D.N.Y., Aug. 10, 2022) is a consumer privacy class action
against Insider, Inc. for allegedly violating the Video Privacy
Protection Act by disclosing its digital users' identities and
video-viewing preferences to Meta Platforms, Inc., the owner of
popular social media platforms Facebook and Instagram, without
proper consent.
According to the complaint, Insider, through its website,
www.businessinsider.com, collects and shares users' personal
information with Meta using a "Meta Pixel." A Meta Pixel is a
snippet of programming code that tracks users as they navigate
through a website, including what searches they performed and which
items they have clicked on or viewed. Insider shared with Meta
personal identifiable information, including at least the user's
Facebook Profile ID, and the title of the video that the user
watched. A user's Facebook Profile ID is linked to their Facebook
profile, which generally contains a wide range of demographic and
other information about the user, including pictures, personal
interests, work history, relationship status, and other details.
Insider discloses the user's Facebook Profile ID and viewing
content to Meta together in a single, unencrypted transmission, in
violation of the VPPA, alleges the suit.
The Plaintiffs are Insider subscribers and provided Insider with
their personal identifiable information, including their names and
email addresses when subscribing to its services.
Insider, Inc., originally called Business Insider Inc., is an
American online media company known for publishing the financial
news website Insider and other news and media websites.[BN]
The Plaintiffs are represented by:
Christian Levis, Esq.
Amanda Fiorilla, Esq.
LOWEY DANNENBERG, P.C.
44 South Broadway, Suite 1100
White Plains, NY 10601
Telephone: (914) 997-0500
Facsimile: (914) 997-0035
E-mail: clevis@lowey.com
afiorilla@lowey.com
- and -
Adam E. Polk, Esq.
Simon Grille, Esq.
Jessica Cook, Esq.
GIRARD SHARP LLP
601 California Street, Suite 1400
San Francisco, CA 94108
Telephone: (415) 981-4800
E-mail: apolk@girardsharp.com
sgrille@girardsharp.com
jcook@girardsharp.com
INTERSYSTEMS CORP: Fails to Properly Pay Manual Workers, Suit Says
------------------------------------------------------------------
EDGAR NAJERA, individually and on behalf of all others similarly
situated v. INTERSYSTEMS CORPORATION and PRATT CONSTRUCTION &
RESTORATION INC., and SERAFIN, as an individual, Case No.
1:22-cv-04530 (E.D.N.Y., Aug. 2, 2022) seeks to recover
compensatory damages and liquidated damages for the Defendants'
egregious violations of the Fair Labor Standards Act and the New
York Labor Law arising out of the Plaintiff's employment with the
Defendants.
According to the complaint, despite being a manual worker, the
Defendants failed to properly pay the Plaintiff his wages within
seven calendar days after the end of the week in which these wages
were earned. The Defendants willfully failed to post notices of the
minimum wage and overtime wage requirements in a conspicuous place
at the location of their employment as required by both the NYLL
and the FLSA, says the suit.
The Plaintiff was employed by Intersystems Corporation, as a
construction worker and scaffolder while performing related
miscellaneous duties for the Defendants, from 2007 until July
2022.
InterSystems is a privately held vendor of software systems and
technology for high-performance database management, rapid
application development, integration, and healthcare information
systems.[BN]
The Plaintiff is represented by:
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Telephone: (718) 263-9591
Facsimile: (718) 263-9598
J.C. TOYS GROUP: Young Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against J.C. Toys Group, Inc.
The case is styled as Lawrence Young, on behalf of himself and all
other persons similarly situated v. J.C. Toys Group, Inc., Case No.
1:22-cv-06250-VEC (S.D.N.Y., July 22, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
JC Toys Group, Inc. -- https://www.jctoys.com/ -- is the worldwide
designer and manufacturer of a wide range of collectible dolls,
specialty play items and play dolls and accessories.[BN]
The Plaintiff is represented by:
Bradly G. Marks, Esq.
THE MARKS LAW FIRM, PC
155 East 55th St., Ste. 6a
New York, NY 10022
Phone: (646) 770-3775
Fax: (646) 867-2639
Email: brad@markslawpc.com
J.G. WENTWORTH COMPANY: Simpson Sues Over Pre-Recorded Calls
------------------------------------------------------------
Douglas Simpson, on behalf of himself and others similarly situated
v. THE J.G. WENTWORTH COMPANY, Case No. 2:22-cv-02911-KSM (E.D.
Pa., July 25, 2022), is brought involving a campaign by the
Defendants to market its services through the use of pre-recorded
telemarketing calls in violation of the Telephone Consumer
Protection Act ("TCPA").
The Plaintiff also alleges that the Defendants uses automated
systems to make telemarketing calls into Florida as well as to
Florida residents that have placed themselves on the National Do
Not Call Registry, and that by doing so, the Defendants has
violated the provisions of the Florida Telephone Solicitations Act.
Because these calls were transmitted using technology capable of
generating thousands of similar calls per day, the Plaintiff sues
on behalf of a proposed nationwide class of other persons who
received similar calls. A class action is the best means of
obtaining redress for the Defendant's illegal telemarketing and is
consistent both with the private right of action afforded by the
TCPA, says the complaint.
The Plaintiff is a Florida resident who was located in Florida at
the
time of the call.
The J.G. Wentworth Company is a corporation with its principal
place of business in this District.[BN]
The Plaintiff is represented by:
Jeremy C. Jackson, Esq.
BOWER LAW ASSOCIATES, PLLC
403 S. Allen St., Suite 210
State College, PA 16801
Phone: 814-234-2626
Email: jjackson@bower-law.com
- and -
Anthony I. Paronich, Esq.
PARONICH LAW, P.C.
350 Lincoln Street, Suite 2400
Hingham, MA 02043
Phone: (508) 221-1510
Email: anthony@paronichlaw.com
JACKSON, MI: 903 West Class Cert. Bid Tossed w/o Prejudice
-----------------------------------------------------------
In the class action lawsuit captioned 903 WEST WASHINGTON LLC, et
al., v. CITY OF JACKSON, et al., Case No. 2:22-cv-11110-SJM-APP
(E.D. Mich.), the Hon. Judge Stephen J. Murphy, III entered an
order that the motion for class certification is denied without
prejudice as premature.
The Plaintiffs may move for class certification after
Court-sanctioned discovery is completed, the Court says.
Jackson is the only city and county seat of Jackson County in the
U.S. state of Michigan.
A copy of the Court's order dated Aug. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3QOxDD4 at no extra charge.[CC]
JCCA: Krasnansky Seeks to Recover Unpaid Wages Under FLSA, NYLL
---------------------------------------------------------------
MICHAEL KRASNANSKY, on behalf of himself, FLSA Collective
Plaintiffs, and the Class, v. JCCA f/k/a JEWISH CHILDCARE
ASSOCIATION, Case No. 7:22-cv-06577 (S.D.N.Y., Aug. 2, 2022) seeks
to recover unpaid wages, including overtime wages, due to time
shaving, liquidated damages, and attorneys' fees and costs pursuant
to the Fair Labor Standards Act and the New York Labor Law.
JCCA operates as a non-profit organization. The Association
provides philanthropic programs[BN]
The Plaintiff is represented by:
Jeffrey D. Pollack, Esq.
Ryan W. Lawler, Esq.
Adam K. Brody, Esq.
MINTZ & GOLD LLP
600 Third Ave., 25th Floor
New York, NY 10016
Telephone: (212) 696-4848
E-mail: pollack@mintzandgold.com
lawler@mintzandgold.com
brody@mintzandgold.com
KASHI SALES: Karney Files Suit in S.D. Florida
----------------------------------------------
A class action lawsuit has been filed against Kashi Sales, LLC. The
case is styled as Stacey Karney, individually and on behalf of all
others similarly situated v. Kashi Sales, LLC, Case No.
1:22-cv-22325-JEM (S.D. Fla., July 25, 2022).
The nature of suit is stated as Other Fraud.
Kashi -- https://www.kashi.com/en_US/home.html -- is a maker of
whole grain cereals and other plant-based foods sourced from
regular farming practices.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Road, Ste. 412
Great Neck, NY 11021
Phone: (516) 268-7080
Fax: (516) 234-7800
Email: spencer@spencersheehan.com
- and -
William Charles Wright, Esq.
THE WRIGHT LAW OFFICE, P.A.
515 N. Flagler Drive Suite P-300
West Palm Beach, FL 33401
Phone: (561) 514-0904
Email: willwright@wrightlawoffice.com
KEVIN STATEN: Celluci Files Suit in S.D. Florida
------------------------------------------------
A class action lawsuit has been filed against Kevin Staten, et al.
The case is styled as Anthony Celluci, putative class
representative and those similarly situated v. Kevin Staten,
Priority Payment, Corp., Edwin Gonzalez, Natala Yenatska, Thomas A.
Wells, Case No. 1:22-cv-22083-RNS (S.D. Fla., July 8, 2022).
The nature of suit is stated as Other Fraud for Action to Recover
Money.
Priority -- https://www.pps.io/ -- is one of the fastest growing
payments companies in the U.S.[BN]
The Plaintiff is represented by:
Adriana Contartese, Esq.
LAW OFFICE OF ADRIANA CONTARTESE
368 West Broadway, 2nd Floor
Boston, MA 02127
Phone: (617) 268-3557
Fax: (617) 464-6490
Email: Adriana911@juno.com
KIA AMERICA INC: Simmons Sues Over Undisclosed Vehicle Defect
-------------------------------------------------------------
Charles W. Simmons, Dale Denney, and Charles Cole on behalf of
themselves and all others similarly situated v. Kia America, Inc.,
Hyundai Motor America, Hyundai Kia America Technical Center, Inc.,
Case No. 2:22-cv-02288-HLT-RES (D. Kan., July 25, 2022), is brought
arising from a defect in Defendants' vehicles which make them easy
to steal, unsafe, and worth less than they should be, if they did
not have the defect, and to recover damages for violations of the
Kansas Consumer Protection Act ("KCPA") the Magnuson Moss Warranty
Act.
The Defendants manufacture, design, produce, distribute and sell
the "Defective Vehicles," which are hereby defined as: "all Kia
models from 2011-2021, and all Hyundai models from 2015-2021." The
Defendants concealed or otherwise failed to disclose, reveal, or
provide notice to customers, including Plaintiffs, in Defendants'
advertising, labeling or otherwise that these vehicles are
defective and are not fit for the ordinary purposes for which the
vehicles are used in that they are easy to steal, unsafe, and worth
less than they should be, if they were not defective.
The vehicles are defective in that, among other things, the
Defendants manufactured and designed them without engine
immobilizers, an electronic security device that make it more
difficult to start a vehicle without a key. Additionally, some of
the Defective Vehicles' windows are not connected to the security
system which thus allows a thief to break the window without the
alarm being triggered. This means that all a thief needs to do is
strip the ignition column, exposing a piece that pops off and they
can then can stick a USB drive, a knife, or something like that to
start the vehicle without a key or code. Considering how many
people charge their cell phones in their cars, the necessary
instrument needed to steal a Defective Vehicle is usually readily
available to any thief.
The Defendants did not disclose this defect, which is a material
fact, and a fact that a reasonable person would rely on when
purchasing a vehicle. The Defendants sold these Defective Vehicles
at multiple locations throughout the state of Kansas and the United
States. The Defendants sold the Defective Vehicles to the
Plaintiffs and other reasonable consumers without disclosing the
fact that these vehicles had a defect which made them easy to
steal, unsafe, and worth less than they should be, if they did not
have the defect, says the complaint.
The Plaintiff purchased the Defective Vehicles for personal,
family, or household purposes.
Kia America, Inc. is engaged in the business of testing,
developing, manufacturing, labeling, marketing, distributing,
promoting, supplying and/or selling, either directly or indirectly,
through third parties and/or related entities, the Defective
Vehicles.[BN]
The Plaintiffs are represented by:
Paul D. Anderson, Esq.
Kenneth B. McClain, Esq.
Jonathan M. Soper, Esq.
Kevin D. Stanley, Esq.
HUMPHREY, FARRINGTON & MCCLAIN, P.C.
221 West Lexington Ave., Ste. 400
Independence, MO 64051
Phone: (816) 836-5050
Fax: (816) 836-8966
Email: pda@hfmlegal.com
kbm@hfmlegal.com
jms@hfmlegal.com
kds@hfmlegal.com
KINDER MORGAN: Wins Bid for Judgment on Pleadings in Pedersen Suit
------------------------------------------------------------------
In the case, CURTIS T. PEDERSEN, et al., Plaintiffs v. KINDER
MORGAN INC, et al., Defendants, Civil Action No. 4:21-CV-03590
(S.D. Tex.), Judge Keith P. Ellison of the U.S. District Court for
the Southern District of Texas, Houston Division, grants in part
and denies in part the Defendant's Motion for Judgment on the
Pleadings.
The matter concerns a retirement benefit plan controversy that came
about because a series of corporate mergers resulted in
now-contested changes to the Plaintiffs' retirement benefits. Named
Plaintiffs Curtis T. Pedersen and Beverly Leutloff are both
participants in the Kinder Morgan Retirement Plan A who worked for
the ANR Co. starting in 1979 and 1978, respectively. The ANR is a
natural gas pipeline owner and operator, founded in the 19th
century. Mr. Pedersen retired from ANR in November 2019 and
commenced his retirement benefits under Plan A on Dec. 1, 2019. Ms.
Leutloff still works for ANR and has not commenced her retirement
benefits under Plan A even though she has reached the retirement
age of 62 because Kinder Morgan's Claims Administrator denied that
she was eligible for "unreduced" retirement benefits at age 62.
In March of 1985, the Coastal Corp. acquired the ANR. When the
Coastal acquired ANR in 1985, it amended the Coastal pension plan
to provide for a "grandfather" of the ANR benefit formula and for
participants to earn benefits under the Coastal Plan's benefit
formula and receive the higher of the two.
In January 2001, the El Paso Corp. acquired the Coastal, including
its ANR subsidiary, and merged them both into the El Paso
Corporation. After El Paso acquired Coastal, the Coastal Pension
Plan and the El Paso Pension Plan were merged effective March 31,
2001.
On Feb. 22, 2007, the El Paso sold the ANR subsidiary to
TransCanada American Investments LTD which is a wholly-owned
subsidiary of the TransCanada Corp. After TransCanada acquired the
ANR subsidiary from El Paso in 2007, the benefits that ANR
employees had previously accrued under the El Paso Plan continued
to be governed by El Paso's Pension Plan even after the ANR
subsidiary was acquired by TransCanada.
On May 2012, the El Paso was acquired by Kinder Morgan; as a result
of that acquisition, El Paso was merged into Kinder Morgan. When
the El Paso was acquired by Kinder Morgan in 2012, Kinder Morgan
merged El Paso's Pension Plan into Kinder Morgan's with Appendix X
("Coastal Appendix") to reflect special rules for employees of the
Coastal and its subsidiaries, including the ANR employees. The
Kinder Morgan Merger resulted in another controversial change to
the Pension Plan. The fraction used to calculate beneficiaries'
post retirement monthly benefits was changed in a crucial way. One
gets a significantly lower monthly benefit when Kinder Morgan's
fraction is used.
In Claim I, the Plaintiffs argue that by applying a "fraction" that
uses 43.4167 years in the "denominator" rather than the maximum of
30 years used in the normal retirement benefit formula, Kinder
Morgan "backloaded" Mr. Pedersen's "Part 1" retirement benefit of
$4,127.08 to later years of service. Mr. Pedersen could not accrue
the full $4,127.08 unless he worked for an additional 13.4167 years
beyond the 30 years on which the $4,127.08 is calculated.
The Plaintiffs' Claim II is based on the same set of facts as Claim
I except that in Claim II Plaintiffs focus on the Plan language
describing the denominator. The new Plan language removed the
denominator's 30-year limit. Therefore, the Plaintiffs claim that
the amendment to the Plan violates ERISA's "anti-cutback"
protection, which provides that the "accrued benefit" of an
employee participating in a company retirement plan like El Paso's
"may not be decreased by an amendment of the plan."
In Claim III, the Plaintiffs allege that Kinder Morgan's Summary
Plan Descriptions failed to alert beneficiaries of the fact that
Kinder Morgan's larger denominator would likely decrease their
monthly benefits if they started working at ANR before they turned
35 (because the denominator is calculated by counting the years
between the beneficiary's age when hired and the year the
beneficiary turns 65). Therefore, they claim the Defendants ran
afoul of ERISA Section 102(a), 29 U.S.C. 1022(a), which requires
disclosures of the plan's terms "written in a manner calculated to
be understood by the average plan participant."
In Claim IV, the Plaintiffs allege that the mentioned 2007 Notice
of the Ninth Amendment -- which ended the Plan's policy granting
early retirement eligibility to employees who had turned 55 and
completed 10 years of service, but allowed employees who were
already 53 to keep their early retirement benefits -- also violated
ERISA's anti-cutback" protection.
In Claim V, the Plaintiffs argue in the alternative, that even if
Plaintiffs Pedersen and Leutloff (who were not 53 years old when
the 2007 Notice came out) are not entitled to early retirement
benefits, the language of the Plan still provides that they are
eligible for an unreduced retirement benefit at age 62. Kinder
Morgan asserts that those unreduced benefits were the result of a
calculation error; Kinder Morgan's interpretation of the Section 15
Plan language is that the only portion of the monthly payment that
is unreduced is the 0.3% of Final Average Monthly Earnings
multiplied by years of credited service under the ANR Plan prior to
1986. The rest of the monthly earnings, Kinder Morgan insists, are
subject to a "Vested Termination Reduction Factor" of 0.7142 --
which means that beneficiaries will only receive 71.42%. The
Plaintiffs claim that Kinder Morgan's interpretation of the Plan
language is incorrect, and is a violation of fiduciary duties.
And finally, Claim VI takes issue with the methods Kinder Morgan
uses to calculate the just-mentioned "Vested Termination Reduction
Factor" of 0.7142. They argue that the GAM83 mortality table and 8%
interest rate are outdated and that continued use of this "outdated
mortality table and old interest rate (when interest rates are
currently below 4%)" produces a retirement benefit for Mr. Pedersen
at age 62 that is equal to only 71.4% of the benefit at age 65.
They argue that use of those actuarial assumptions violates ERISA
Section 204(c)(3)'s requirement that early retirement benefits
provide at least "actuarially equivalent" benefits to those offered
at normal retirement age.
The Plaintiffs bring claims on behalf of themselves and on behalf
of a proposed class (encapsulating more than 10,000 members)
defined as "any and all persons who have participated in the Kinder
Morgan Retirement Plan A or Plan B who: (1) Are current or former
employees of the ANR Company, or for Claims I - III the Coastal
Corporation, and (2) Participated in the El Paso Pension Plan after
El Paso acquired the Coastal Corporation in 2001." They ask the
Court to render the following forms of relief:
a. Declare that in accordance with ERISA's statutory rules and
the terms of the Kinder Morgan Retirement Plan and its Appendices,
Curtis Pedersen and Beverly Leutloff and all others
similarly-situated are entitled to retirement benefits calculated
with a fraction where the denominator is no more than the maximum
of 30 years that can be attained under the Plan.
b. Declare that ERISA and the terms of the Plan require that
the named Plaintiffs and all others similarly-situated have the
right to the early retirement benefits provided under the El Paso
Plan including that benefits are unreduced for commencement after
they reach age 62.
c. Enjoin the Defendants to calculate the amount of
participants' retirement benefits and their benefits at age 62 and
earlier retirement ages in accordance with those declarations and
take all necessary steps to give full effect to those declarations
and injunctions and fully account for the provision of that relief
to Pedersen, Leutloff and all others similarly-situated, including
providing past due benefits.
d. Order the Defendants to pay interest on past due back
payments at no less than the rates of return realized on the
Defendant Kinder Morgan, Inc. and the Defendant Kinder Morgan
Retirement Plan's equity investments over the same period.
e. Order the Defendants to pay attorneys' fees and expenses.
f. Award such other equitable and remedial relief as the Court
deems appropriate to ensure receipt of all retirement benefits
required to give full effect to the Court's declarations and
injunction.
Judge Ellison held a hearing on the Defendant's Motion for Judgment
on the Pleadings on July 21, 2022.
Initially, the Defendants argue that to the extent the Plaintiffs
are bringing their claims under ERISA Section 502(a)(3) instead of
502(a)(1)(B), their claims must be dismissed.
Judge Ellison grants the Defendants' motion for judgment on the
pleadings as to Claim I and denies as to Claims II to V. He finds
that (i) the Plaintiffs have "an adequate mechanism for redress
under" ERISA Section 502(a)(1)(B) for "failure to compensate the
Plaintiff] under the terms of the plan (Claim I; (ii) El Paso's
amendment to the fraction cannot be fixed by changing the
denominator back to the original provision, but making other
changes to the fraction to achieve similar results (Claim II);
(iii) the Plaintiffs' claim is not asking the Court to deal with
the terms of the Plan at all (Claim III); (iv) interpretation and
enforcement of the Kinder Morgan Plan's Ninth Amendment would not
address the Plaintiffs' claimed injury (Claim IV); (v) since the
Plaintiffs' requested relief clearly asks the Court to interpret
and enforce the Plan, Claim V must be brought under 502(a)(1)(B);
and (vi) the Plaintiffs ask the Court to force the Defendants to
amend the Kinder Morgan Pension Plan, using a 4% interest rate
instead of an 8% interest rate, and using the mortality table
currently prescribed by ERISA Section 205(g)(3) (Claim VI).
Next, Judge Ellison examines whether Claims III, IV, and VI should
be dismissed notwithstanding 502(a)(3). He finds that the
conflicting communications and performances by Kinder Morgan in the
months and years following the 2007 Notice delayed claim accrual
until mid-2018, when defendants unequivocally stopped giving out
unreduced benefits. Therefore, he denies the Defendants' motion for
judgment on the pleadings as to the untimeliness of Claims VI and
IV.
Judge Ellison also finds that the Plaintiffs have pled a plausible
violation of ERISA Section 102(a). El Paso and Kinder Morgan failed
to identify circumstances which may result in denial or loss of
benefits that the average plan participant might otherwise
reasonably expect the plan to provide based on the description of a
benefit formula of 2% of pay for up to 30 years. Therefore, the
Defendants' motion for judgment on the pleadings as to Claim III is
denied.
Judge Ellison further finds that ERISA Section 204(c)(3)'s
actuarial equivalence requirement would be completely undermined if
the Defendants were free to use whatever actuarial assumptions they
want when calculating benefits. Therefore, he denies the
Defendants' motion for judgment on the pleadings as to Claim VI.
Lastly, Judge Ellison determines whether Kinder Morgan, the
Individual Fiduciaries, and Plan B are proper Defendants. First, he
finds that Kinder Morgan cannot be sued under 502(a)(1)(B) because
the company did not control administration of the Plan. So he
grants the Defendants' motion for judgment on the pleadings as to
Section 502(a)(1)(B) claims against Kinder Morgan, Inc. However, he
finds no meaningful distinction between the Committee as an entity
and the committee members in their individual capacity. Therefore,
he denies the Defendants' motion for judgment on the pleadings
insofar as to 502(a)(1)(B) claims against individual committee
members.
Second, Judge Ellison holds that Kinder Morgan cannot be sued as a
fiduciary because the company did not exercise any discretionary
authority or discretionary control respecting management of the
Plan. It remains the case that benefit determinations were
indisputably delegated to the Committee. So, he grants the
Defendants' motion for judgment on the pleadings as to Kinder
Morgan, Inc., being sued as a fiduciary. However, he again finds
that where fiduciary status is concerned, there is no meaningful
distinction between the Committee as an entity and the committee
members in their individual capacity. Therefore, he denies the
Defendants' motion for judgment on the pleadings insofar as to
individual committee members being sued as fiduciaries.
Third, Judge Ellison holds that the participants who were spun off
into Kinder Morgan's Plan B are subject to the same general
practices and suffer from the same alleged injuries as those whom
Kinder Morgan left in Plan A. Therefore, he denies the Defendants'
motion for judgment on the pleadings as to the Plaintiffs' Article
III standing to represent Plan B participants.
Finally, Judge Ellison denies the Defendants' motion for judgment
on the pleadings as to improper group pleading. Their group
pleading allegations fall flat for three reasons: (1) it is
undisputed that the Committee had the sole authority and
responsibility for administration of the plan; (2) the group
pleading allegation appear to be a motion for a "more definite
statement," which the Defendants should have filed under Rule 12(e)
before the responsive pleading; and (3) the Defendants' citation to
the Court's ruling in Del Castillo is unpersuasive because Del
Castillo is about "lumping together distinct corporate entities";
it does not bear on the fiduciary responsibilities of the officers
of a single company who are all serve as members of a Fiduciary
Committee.
For the reasons he described and as stated on the record at the
July 21, 2022 hearing, Judge Ellison grants the Defendants' Motion
for Judgment on the Pleadings as to Claim I and Claim V to the
extent the Plaintiff seeks to bring them under 502(a)(3); grants
the Defendants' Motion as to Section 502(a)(1)(B) claims brought
against Kinder Morgan, In.; grants its Motion as to Kinder Morgan
being sued as a fiduciary; and denies their Motion in all other
respects.
A full-text copy of the Court's Aug. 12, 2022 Memorandum & Order is
available at https://tinyurl.com/45ujnnfp from Leagle.com.
KING DR. HALAL: Neal Sues Over Unpaid Regular and Overtime Wages
----------------------------------------------------------------
Donna Neal, on behalf of herself and all other plaintiffs similarly
situated, known and unknown v. KING DR. HALAL, INC., ILLINOIS AN
CORPORATION D/B/A BABA'S HALAL, D/B/A BABA'S HALAL FAMOUS STEAK &
LEMONADE, D/B/A BABA'S FAMOUS STEAKS & LEMONADE, FAWZI F. AYED,
INDIVIDUALLY, Case No. 1:22-cv-03825 (N.D. Ill., July 25, 2022), is
brought under the Fair Labor Standards Act ("FLSA"), the Illinois
Minimum Wage Law ("IMWL"), and the Chicago Minimum Wage Ordinance
("CMWO") of the Municipal Code of Chicago as a result of the
Defendants' failure to pay regular and overtime wages.
The Plaintiff was consistently required to work more than 40 hours
each week and was not paid overtime premiums of one and one-half
her regular rate of pay for such hours. The Plaintiff was paid a
flat, per day rate of pay of approximately $70 for a purported
workday of 7 hours. However, the Plaintiff almost always worked far
in excess of hours which the per-diem compensation plan was based
and intended to compensate. As such the Plaintiff did not receive
any compensation for hours worked in excess of 7 per day or 40 per
week.
Additionally, the Plaintiff worked far in excess of the hours
included in her per-diem compensation structure that was not
recorded by the Defendants--or work off the clock. The Plaintiff
was not compensated for work performed "off the clock" in excess of
the seven-hour day which her compensation covered. Plaintiff was
required to perform pre- and post-shift duties, such as cleaning
and closing duties that she was not paid for outside of her
per-diem wages. Lastly, as a result of Defendants' illegal per-diem
wage scheme, Plaintiff was paid below the minimum wage prescribed
by the IMWL and CMWO. At times, the Plaintiff's regular hourly rate
also fell below the federal minimum wage set forth by the FLSA,
says the complaint.
The Plaintiff is a former employee of Defendants who performed a
number of restaurant cashier, food preparer, food service and
janitorial duties.
The Defendants operates a counter service, fast food restaurant
located in Chicago, Illinois.[BN]
The Plaintiff is represented by:
Samuel D. Engelson, Esq.
John William Billhorn, Esq.
BILLHORN LAW FIRM
53 West Jackson Blvd., Suite 1137
Chicago, IL 60604
Phone: (312) 853-1450
LENDINGPOINT LLC: Lynch Sues Over Unsolicited Text Messaging
------------------------------------------------------------
Alva Lynch, individually and on behalf of all others similarly
situated v. LENDINGPOINT LLC, Case No. 8:22-cv-01654-KKM-JSS (July
21, 2022), is brought pursuant to the Telephone Consumer Protection
Act (the "TCPA"), and the Florida Telephone Solicitation Act
("FTSA"), as a result of the Defendant's engagement in unsolicited
text messaging.
To promote its goods and services, the Defendant engages in
unsolicited text messaging to those who have not provided the
Defendant with their prior express written consent as required by
the FTSA. The Defendant also engages in telemarketing without the
requisite policies and procedures and training required under the
TCPA and its implementing regulations. The Defendant's telephonic
sales calls have caused the Plaintiff and the Class members harm,
including violations of their statutory rights, statutory damages,
annoyance, nuisance, and invasion of their privacy. Through this
action, the Plaintiff seeks an injunction and statutory damages on
behalf of Plaintiff and the Class members, and any other available
legal or equitable remedies resulting from the unlawful actions of
the Defendant, says the complaint.
The Plaintiff is a citizen and resident of Hillsborough County,
Florida.
The Defendant is a foreign corporation and a "telephone
solicitor."[BN]
The Plaintiff is represented by:
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 East Las Olas Boulevard, Suite 1400
Ft. Lauderdale, FL 33301
Phone: 954.400.4713
Email: mhiraldo@hiraldolaw.com
- and -
Rachel N. Dapeer, Esq.
DAPEER LAW, P.A.
20900 NE 30th Avenue, Ste. 417
Aventura, FL 333180
Phone: 305-610-5223
Email: rachel@dapeer.com
LIBERTY HEALTHCARE: Fails to Pay Overtime Pay, Adams Alleges
------------------------------------------------------------
MISTI ADAMS, individually and on behalf of all others similarly
situated, Plaintiff v. LIBERTY HEALTHCARE SERVICES, LLC; LIBERTY
HEALTHCARE SERVICES, LLC PLUS; CHANTHOU PHAY; and GAIL BOUNEMANY,
Defendants, Case No. 2:22-cv-03132-MHW-KAJ (S.D. Ohio, Aug. 16,
2022) is an action against the Defendant's failure to pay the
Plaintiff and the class overtime compensation for hours worked in
excess of 40 hours per week.
Plaintiff Adams was employed by the Defendants as staff.
LIBERTY HEALTHCARE SERVICES, LLC provides health care services. The
Company offers personal care, homemaker, companion, physical
therapy, medications, medical social, and counseling services.
[BN]
The Plaintiff is represented by:
Matthew J.P. Coffman, Esq.
Kelsie N. Hendren, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Road Suite 126
Columbus, OH 43220
Telephone: (614) 949-1181
Facsimile: (614) 386-9964
Email: mcoffman@mcoffmanlegal.com
khendren@mcoffmanlegal.com
- and -
Peter Contreras, Esq.
CONTRERAS LAW, LLC
1550 Old Henderson Road Suite 126
Columbus, Ohio 43220
Telephone: (614) 787-4878
Facsimile: (614) 957-7515
Email: peter.contreras@contrerasfirm.com
LOANDEPOT.COM LLC: Smaling Suit Removed to S.D. Florida
-------------------------------------------------------
The case styled as Ashley Smaling, individually and on behalf of
all others similarly situated v. LoanDepot.com, LLC, Case No.
CACE-22-008672 was removed from the 17th Judicial Circuit Broward
County, Florida, to the U.S. District Court for the Southern
District of Florida on July 26, 2022.
The District Court Clerk assigned Case No. 0:22-cv-61394-KMM to the
proceeding.
The nature of suit is stated as Consumer Credit.
LoanDepot -- https://www.loandepot.com/ -- sometimes stylized as
loanDepot, is a Lake Forest, California-based nonbank holding
company which sells mortgage and non-mortgage lending
products.[BN]
The Plaintiff is represented by:
Jeremy Phillip Dover, Esq.
DEMESMIN AND DOVER, PLLC
1650 Southeast 17th Street, Suite 100
Fort Lauderdale, FL 33316
Phone: (866) 954-6673
Email: jdover@dd-legal.com
The Defendant is represented by:
Joseph Andrew Apatov, Esq.
MCGLINCHEY STAFFORD, PLLC
1 E. Broward Blvd., Suite 1400
Fort Lauderdale, FL 33301
Phone: (954) 356-2501
Fax: (954) 252-3808
Email: japatov@mcglinchey.com
LUVATA APPLETON: Fails to Pay Proper Wages, Newman Suit Alleges
---------------------------------------------------------------
WAYMAN NEWMAN, individually and on behalf of all others similarly
situated, Plaintiff v. LUVATA APPLETON LLC; and MITSUBISHI
MATERIALS USA CORPORATION, Defendants, Case No. 1:22-cv-00942-WCG
(E.D. Wis., Aug. 17, 2022) seeks to recover from the Defendants
unpaid wages and overtime compensation, interest, liquidated
damages, attorneys' fees, and costs under the Fair Labor Standards
Act.
Plantiff Newman was employed by the Defendants as staff.
LUVATA APPLETON LLC provides fabricated copper products. The
Company manufactures copper and metal products, as well as casting,
billet and continuous extruding, drawing, annealing, and machining
enabling services. [BN]
The Plaintiff is represented by:
James A. Walcheske, Esq.
Scott S. Luzi, Esq.
David M. Potteiger, Esq.
WALCHESKE & LUZI, LLC
235 N. Executive Drive, Suite 240
Brookfield, WN 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
Email: jwalcheske@walcheskeluzi.com
sluzi@walcheskeluzi.com
dpotteiger@walcheskeluzi.com
LUXOTTICA OF AMERICA: Gabourel Must File Class Cert Bid by Nov. 18
------------------------------------------------------------------
In the class action lawsuit captioned as PASSION GABOUREL,
individually and on behalf of all others similarly situated, v.
LUXOTTICA OF AMERICA INC. d/b/a LENSCRAFTERS, an Ohio corporation;
LUXOTTICA RETAIL NORTH AMERICA, INC., a business entity of unknown
form; and DOES 1 through 50, inclusive, Case No.
2:22-cv-00471-FWS-MAA (C.D. Cal.), the Hon. Judge Hon. Fred W.
Slaughter entered an order granting joint stipulation to extend
deadline for plaintiff to file her motion for class certification.
1. The Plaintiff shall file her motion for class
certification no later than November 18, 2022.
2. The Defendant shall file its opposition to Plaintiff's
motion for class certification no later than January 23,
2023.
3. The Plaintiff shall her reply in support of her motion for
class certification no later than February 17, 2023.
Luxottica offers prescription glasses and sunglasses.
A copy of the Court's order dated Aug. 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3T1xwph at no extra charge.[CC]
M.A.G. ENTERPRISES: Wu Sues Over Unpaid Wages, Illegal Kickbacks
----------------------------------------------------------------
LISHA WU, individually and on behalf of all others similarly
situated v. M.A.G. ENTERPRISES, INC. dba THE OASIS GENTLEMEN'S
CLUB, a Corporation; JOHN A. MEEHAN, an individual; and DOES 1
through 10, inclusive, Case No. 2:22-cv-03069 (E.D. Pa., Aug. 3,
2022) alleges that Oasis evades the mandatory minimum wage
provisions of the Fair Labor Standards Act and illegally absconds
with Plaintiff's tips and demands illegal kickbacks including in
the form of "house fees."
The causes of action arise from Defendants' willful actions while
the Plaintiff was employed by the Defendants from 2011 to November
2020. During her time being employed by the Defendants, the
Plaintiff was denied minimum wage payments as part of Defendants'
scheme to classify Plaintiff and other dancers/entertainers as
"independent contractors," says the suit.
The Plaintiff worked at the Defendants' adult entertainment
facility, The Oasis Gentlemen's Club, located at 6798 Essington
Ave, Philadelphia, Pennsylvania.[BN]
The Plaintiff is represented by:
Daniel J. Sherry, Jr., Esq.
EISENBERG, ROTHWEILER, WINKLER,
EISENBERG & JECK, P.C.
1634 Spruce Street
Philadelphia, PA 19106
Telephone: (215) 546-6636
Facsimile: (215) 546-0118
E-mail: daniel@erlegal.com
- and -
John P. Kristensen, Esq.
CARPENTER & ZUCKERMAN
8827 W. Olympic Boulevard
Beverly Hills, CA 90211
Telephone: (310) 273-1230
Facsimile: (310) 858-1063
E-mail: kristensen@cz.law
MANKIN LAW: Denning Seeks to Certify FDCPA and State Law Class
--------------------------------------------------------------
In the class action lawsuit captioned as DOUGLAS A. DENNING, on
behalf of himself and others similarly situated, v. MANKIN LAW
GROUP, P.A., Case No. 8:21-cv-02822-MSS-MRM (M.D. Fla.), the
Plaintiff asks the Court to enter an order certifying the following
two classes:
-- Fair Debt Collection Practices Act (FDCPA)
"All persons (a) with a Florida address (b) to whom Mankin
Law Group, P.A. mailed a debt collection communication not
known to be returned as undeliverable, (c) in connection
with the collection of a consumer debt, (d) between
December 4, 2020 and December 3, 2021, (e) that attempted
to collect (i) assessments owed to Countryside North
Community Association, Inc. in the amount of $125 for 2020
and/or 2021, and/or (ii) interest on such assessments.
-- State Law Class
"All persons (a) with a Florida address (b) to whom Mankin
Law Group, P.A. mailed a debt collection communication not
known to be returned as undeliverable, (c) in connection
with the collection of a consumer debt, (d) between
December 4, 2019 and December 3, 2021, (e) that attempted
to collect (i) assessments owed to Countryside North
Community Association, Inc. in the amount of $125 for
2019, 2020, and/or 2021, and/or (ii) interest on such
assessments."
The Plaintiff additionally requests that this Court appoint him as
the representative for both proposed classes and appoint Greenwald
Davidson Radbil PLLC as counsel for both proposed classes.
Mankin Law is a Clearwater-based law firm that engages in debt
collection activity on behalf of its condominium and homeowners'
association clients.
One such client is Countryside North Community Association, Inc.
The Association cares for communal property surrounding several
subdivisions of homes, townhomes, and condominiums, whose owners
are members of the Association.
By letter dated May 7, 2021, the Defendant demanded that Plaintiff
pay $634.36 in delinquent Association assessments and added
collection charges. In addition to demanding money, the Defendant
threatened a claim of lien on the Plaintiff's home absent payment.
The fear of the lien prompted the Plaintiff to pay Defendant the
full amount requested within weeks of receiving the letter --
albeit under protest. Th e Plaintiff's payment to the Defendant
included $250 in annual Association assessments, $125 for each of
2020 and 2021.
The Defendant's collection of these assessments for the
Association, however, violated state and federal law. The reason,
while ultimately not germane to this Court's Rule 23 analysis, is
simple: the Association hiked its annual assessments beyond its own
authority.
A copy of the Plaintiff's motion dated Aug. 5, 2022 is available
from PacerMonitor.com at https://bit.ly/3dSC8Oi at no extra
charge.[CC]
The Plaintiff is represented by:
James L. Davidson, Esq.
Jesse S. Johnson, Esq.
GREENWALD DAVIDSON RADBIL PLLC
5550 Glades Road, Suite 500
Boca Raton, FL 33431
Telephone: (561) 826-5477
E-mail: jdavidson@gdrlawfirm.com
jjohnson@gdrlawfirm.com
MARATHON OIL: Fails to Pay Inspectors' OT Wages, Walker Suit Says
-----------------------------------------------------------------
WILLIAM WALKER, individually and on behalf of others similarly
situated v. MARATHON OIL COMPANY, Case No. 4:22-cv-02581 (S.D.
Tex., Aug. 3, 2022) alleges that Marathon does not pay its
inspectors as required by the Fair Labor Standards Act.
According to the complaint, Marathon pays its Inspectors a flat
daily rate for all hours worked in a workweek, including those in
excess of 40 in a workweek. Marathon's day rate plan violates the
FLSA because the Inspectors are owed overtime for hours worked in
excess of 40 in a week at the rate of one-and-one-half times their
regular rates, says the suit.
Mr. Walker worked for Marathon as an Environmental Inspector. He
brings this action to recover the unpaid overtime and other damages
owed to Marathon's Inspectors.
Marathon is an independent exploration and production company
headquartered in Houston, Texas.[BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Richard M. Schreiber, Esq.
JOSEPHSON DUNLAP, LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
11 Greenway Plaza, Suite 3025
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065e
E-mail: rburch@brucknerburch.com
MAXIM HEALTHCARE: Miller Sues to Recover Pay Losses
---------------------------------------------------
Carolyn Miller, Teayl Miller, and Jennifer Reents, individually and
on behalf of all others similarly situated v. MAXIM HEALTHCARE
SERVICES, INC., Case No. 1:22-cv-01782-JRR (D. Md., July 20, 2022),
is brought to seek recovery for the pay losses the Plaintiffs and
other travelers experienced as the result of the Defendnat's
predatory business practices.
Travel nurses serve a valuable role in our country's healthcare
system. Hospitals, clinics, and other healthcare facilities rely on
skilled travel employees to fill short-term nursing employment gaps
on a temporary basis. To fill these roles, healthcare facilities
utilize intermediary staffing agencies to employ the travelers,
negotiate pay rates, and schedule assignments. Traveling nurses
have played an especially critical role since the start of the
COVID-19 pandemic, as many facilities experienced severe staffing
shortages that required temporary assistance in order to continue
providing quality healthcare.
But a troubling practice has emerged. Maxim is offering contracts
to travel nurses with a fixed-term assignment at an agreed-upon pay
rate. After the nurse accepts the position and starts the
assignment, Maxim makes a "take-it-or-leave-it" demand to accept
less pay or be terminated. Of course, most nurses have no choice
but continue working the assignment at the lower rate because they
have no reasonable alternatives for comparable employment: they
have already incurred travel expenses, secured short-term housing,
and uprooted their lives to accept the assignment. Maxim is
knowingly engaging in these "bait-and-switch" practices to maintain
the significant profit margins it had become accustomed to during
the COVID-19 pandemic.
Each Plaintiff relied on the material terms of their employment
agreements including: the fixed assignment term, the payment
package, and the guaranteed hours or days in accepting the offer;
as the assignment had to be worth foregoing other employment,
relocating, and incurring the associated professional and personal
costs of accepting the travel assignment. In addition, each
Plaintiff relied on the fact the foregoing material terms could not
be changed without additional consideration and the reasonable
expectation that Defendant would act in good faith and fair dealing
and honor its promises or representations. The Plaintiffs would not
have accepted the agreements had they known that Maxim would
violate the terms and spirit of their agreements, says the
complaint.
The Plaintiffs accepted a travel assignment from Maxim to work at
the Defendant's healthcare facility.
Maxim is one of the leading healthcare staffing agencies in the
United States.[BN]
The Plaintiff is represented by:
Veronica B. Nannis, Esq.
JOSEPH GREENWALD & LAAKE, P.A.
6404 Ivy Lane, Ste. 400
Greenbelt, MD 20770-1417
Phone: (240) 553-1209
Facsimile: (240) 553-1748
Email: VNannis@JGLLAW.COM
- and -
George A. Hanson, Esq.
J. Austin Moore, Esq.
K. Ross Merrill, Esq.
STUEVE SIEGEL HANSON LLP
460 Nichols Road, Suite 200
Kansas City, MO 64112
Phone: (816) 714-7100
Facsimile: (816) 714-7101
Email: hanson@stuevesiegel.com
moore@stuevesiegel.com
merrill@stuevesiegel.com
MDL 2824: Court Nixes Expert Testimony on Total Amount of Damages
-----------------------------------------------------------------
In the case, IN RE: GOLD KING MINE RELEASE IN SAN JUAN COUNTY,
COLORADO, ON AUGUST 5, 2015. This Document Relates to: No.
1:18-cv-00744-WJ-KK, Case No. 1:18-md-02824-WJ (D.N.M.), Judge
William P. Johnson of the U.S. District Court for the District of
New Mexico grants in part and denies in part United States' Motion
to Exclude the Expert Testimony of Allen Plaintiffs' Experts Robert
Unsworth and Adam Stack.
The Allen Plaintiffs' experts Robert Unsworth and Adam Stack
prepared an expert report, the purpose of which "is to assess the
financial and economic losses that Navajo farmers and ranchers
incurred" due to the release from the Gold King Mine.
The United States moves the Court to exclude the testimony of Mr.
Unsworth and Dr. Stack because:
(i) They opine only as to the damages of the Allen Plaintiffs
as a group, not the damages of any individual Allen Plaintiff;
(ii) They calculated the Allen Plaintiffs' damages using
simple arithmetic without assessing the reasonableness of claimed
losses;
(iii) They failed to consider key sources of facts and data;
(iv) They failed to apply their own methodology; and
(v) Their damage calculations are subject to a wide margin of
error.
To perform its gatekeeping function, the Court generally takes two
steps. First, it determines whether the expert is qualified by
"knowledge, skill, experience, training, or education" to render an
opinion. The United States does not dispute Mr. Unsworth or Dr.
Stack's qualifications, so Judge Johnson turns to the second step
which is to decide whether their opinions are sufficiently
reliable.
First, the United States contends that the "pertinent inquiry here
is: what is the monetary relief to which each Allen Plaintiff may
be entitled as damages." It argues that Mr. Unsworth and Dr.
Stack's testimony will not be helpful to the trier of fact because
"they propose to testify only as to the total damage to the Allen
Plaintiffs as a group. They provide no opinion as to the damage of
any individual Allen Plaintiff." Mr. Unsworth and Dr. Stack
"estimate that the Allen Plaintiffs' total damages, as a group, is
'between $7,348,000 and $11,891,000.'"
The Allen Plaintiffs contend that "the United States' Motion
inaccurately asserts that Mr. Unsworth and Dr. Stack did not
calculate individualized damages." They state that Mr. Unsworth and
Dr. Stack's Report contain a "very detailed damages spreadsheet"
and that Mr. Unsworth and Dr. Stack calculated the damages for each
Allen Plaintiff.
Judge Johnson understands the Allen Plaintiffs' statement that the
assessment of total damages "is the sum of their assessment of
damages for each individual Allen Plaintiff, which are based on the
information uniquely pertinent to each Allen plaintiff." However,
their statement that the assessment of damages for each individual
Allen Plaintiff is also based on "information derived from their
expert assessment as a group" appears to be somewhat circular
reasoning: The total damages is the sum of the individual damages
which are determined in part by the total damages.
If the Allen Plaintiffs mean that for some individual Allen
Plaintiffs who did not have information regarding some of their
damages, Mr. Unsworth and Dr. Stack estimated that information
based on similar information reported by other Allen Plaintiffs,
then Mr. Unsworth and Dr. Stack may testify as to how they
estimated the missing information. They have not shown that their
total damages as a group is relevant to each individual Allen
Plaintiff's damages.
Judge Johnson grants the United States' Motion to exclude Mr.
Unsworth and Dr. Stack's testimony regarding the total amount of
damages to the Allen Plaintiffs as a group.
Second, the United States argues that Mr. Unsworth and Dr. Stack
calculated the Allen Plaintiffs' damages using simple arithmetic
without assessing the reasonableness of claimed losses. Mr.
Unsworth and Dr. Stack's calculations of the Allen Plaintiffs'
damages involved more than "using simple arithmetic." They
"consulted a range of data sources to supplement information
provided by the Plaintiffs."
Judge Johnson opines that Mr. Unsworth and Dr. Stack's opinions
will be helpful because they are based on calculations and
information that most untrained laymen are not familiar with.
Whether the situation is a proper one for the use of expert
testimony is to be determined on the basis of assisting the trier.
There is no more certain test for determining when experts may be
used than the common sense inquiry whether the untrained layman
would be qualified to determine intelligently and to the best
possible degree the particular issue without enlightenment from
those having a specialized understanding of the subject involved in
the dispute.
Third, the United States contends that "Mr. Unsworth and Dr. Stack
failed to consider key sources of facts and data" because they did
not review the Standard Form 952 for every Allen Plaintiff, failed
to speak with any of the Allen Plaintiffs and failed to consider
their deposition transcripts. Mr. Unsworth and Dr. Stack based
their calculations on data "primarily taken from the Court-approved
questionnaires and the Standard Form 95 submitted by each
Plaintiff."
Judge Johnson opines that Mr. Unsworth and Dr. Stack's opinions,
which are based on the information in the Plaintiff Questionnaires,
are based on sufficient facts and data. Rule 702 requires that an
expert's testimony be based on "sufficient facts or data;" it does
not require that the testimony be based on all available facts or
data. The Plaintiff Questionnaire was designed, with the
participation and agreement of the United States, to obtain
information that would normally be learned through discovery.
Fourth, the United States asserts that Mr. Unsworth and Dr. Stack
failed to apply their own methodology.
Judge Johnson finds that neither Mr. Unsworth nor Dr. Stack
assessed whether the Plaintiffs who provided quantified data are
representative of them who did not. He does not exclude Mr.
Unsworth and Dr. Stack's testimony regarding their calculation of
the individual Allen Plaintiffs' damages. The United States appears
to challenge the data used in the calculations, i.e. using the
median values to calculate damages for individuals who reported
quantitative data, not the methodology.
Reliability is primarily a question of the validity of the
methodology employed by an expert, not the quality of the data used
in applying the methodology or the conclusions produced.
Accordingly, a district court must admit expert testimony as long
as it is based on a reliable methodology. It is then for the jury
to evaluate the reliability of the underlying data, assumptions,
and conclusions.
Fifth, the United States asserts that Mr. Unsworth and Dr. Stack's
damage calculations are subject to a wide margin of error. It
contends that Mr. Unsworth and Dr. Stack's calculations of the
Allen Plaintiffs' total damages are subject to a wide margin of
error. The Court has excluded Mr. Unsworth and Dr. Stack's
testimony regarding the total amount of damages to the Allen
Plaintiffs as a group.
Sixth, the Allen Plaintiffs contend that the United States does not
address or challenge the testimony and opinions from Mr. Unsworth
and Dr. Stack unrelated to economic damages that will assist the
trier of fact. The United States did challenge Mr. Unsworth and Dr.
Stack's opinions related to noneconomic damages. It included a
quote, underlined in the preceding paragraph, from the Allen
Plaintiffs' response to a motion for summary judgment.
Judge Johnson grants the United States' motion to exclude Mr.
Unsworth and Dr. Stack's opinions regarding noneconomic damages
because those opinions will not be helpful to the jury. A jury is
capable of understanding testimony regarding issues such as
physical discomfort, irritation and inconvenience without an
expert's help.
The Allen Plaintiffs request a Daubert hearing prior to a ruling on
the United States' Motion to exclude Mr. Unsworth and Dr. Stack's
testimony. Because the Court is allowing the testimony of Mr.
Unsworth and Dr. Stack regarding each individual Allen Plaintiff's
economic damages, Judge Johnson denies the Allen Plaintiffs'
request for a Daubert hearing.
Judge Johnson grants in part and denies in part the United States'
Motion to Exclude the Expert Testimony of Allen Plaintiffs' Experts
Robert Unsworth and Adam Stack as follows: he grants regarding the
total amount of damages to the Allen Plaintiffs as a group; he
denies regarding the economic damages of the individual Allen
Plaintiffs; and denies regarding non-economic damages.
A full-text copy of the Court's Aug. 12, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/ne3m49wa from
Leagle.com.
METRO AIR SERVICE: Gomez Suit Removed to C.D. California
--------------------------------------------------------
The case styled as Adam Gomez, an individual, on behalf of himself
and on behalf of all persons similarly situated v. Metro Air
Service Inc., Does 1 through 50, inclusive, Case No. 22STCV14964
was removed from the Los Angeles Superior Court, to the U.S.
District Court for the Central District of California on July 20,
2022.
The District Court Clerk assigned Case No. 2:22-cv-04979-SB-AS to
the proceeding.
The nature of suit is stated as Other Labor.
Metro Air Service Inc. -- http://www.metroairservices.net/-- is a
freight forwarding service in Nashville, Tennessee.[BN]
The Plaintiff is represented by:
Nicholas J De Blouw, Esq.
Aparajit Bhowmik, Esq.
Charlotte James, Esq.
Kyle R. Nordrehaug, Esq.
Norman B Blumenthal, Esq.
Ruchira Piya Mukherjee, Esq.
BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP
2255 Calle Clara
La Jolla, CA 92037
Phone: (858) 551-1223
Fax: (858) 551-1232
Email: nick@bamlawca.com
aj@bamlawca.com
charlotte@bamlawca.com
Kyle@bamlawca.com
norm@bamlawca.com
piya@bamlawca.com
The Defendants are represented by:
Shannon Bettis Nakabayashi, Esq.
Gonzalo Morales, Esq.
Julie Y. Zong, Esq.
JACKSON LEWIS PC
50 California Street 9th Floor
San Francisco, CA 94111-4615
Phone: (415) 394-9400
Fax: (415) 394-9401
Email: shannon.nakabayashi@jacksonlewis.com
gonzalo.morales@jacksonlewis.com
julie.zong@jacksonlewis.com
MICHIGAN AVENUE IMMEDIATE: Cornell Files Suit in N.D. Illinois
--------------------------------------------------------------
A class action lawsuit has been filed against Michigan Avenue
Immediate Care, S.C. The case is styled as Richard Delano Cornell,
individually, and on behalf of all others similarly situated v.
Michigan Avenue Immediate Care, S.C., Case No. 1:22-cv-03885 (N.D.
Ill., July 27, 2022).
The nature of suit is stated as Other P.I. for Other Contract.
Michigan Avenue Immediate Care, S.C. --
https://www.michiganavenueprimarycare.com/ -- is an urgent care
clinic located on Michigan Avenue in Chicago, Illinois.[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
- and -
Nickolas J. Hagman, Esq.
Daniel O. Herrera, Esq.
CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP
135 South LaSalle Street, Suite 3210
Chicago, IL 60603
Phone: (312) 782-4880
Email: nhagman@caffertyclobes.com
dherrera@caffertyclobes.com
MIDDLESEX SAVINGS BANK: O'Neil Sues Over Improper Fee Charges
-------------------------------------------------------------
Stephen O'Neil, on behalf of himself and all others similarly
situated v. MIDDLESEX SAVINGS BANK, Case No. 22-1579 (Mass. Super.
Ct., Suffolk Cty., July 12, 2022), is brought arising from its
routine practices of assessing more than one insufficient funds fee
("NSF Fee") on the same transaction.
The Defendant's Account Documents allow The Defendant to charge a
single $35 NSF Fee when a transaction is returned for insufficient
funds or paid despite insufficient funds. The Defendant breaches
its Account Documents by charging more than one $35 NSF Fee on the
same transaction, since the contract explicitly states--and
reasonable consumers understand--that the same transaction can only
incur a single NSF Fee.
The Defendant's customers have been injured by the bank's improper
practices to the tune of millions of dollars bilked from their
accounts in violation the Defendant's clear contractual
commitments. The Plaintiff seeks to end the Defendant's abusive and
predatory practices and force it to refund all of these improper
charges. The Plaintiff asserts a claim for breach of contract,
including breach of the covenant of good faith and fair dealing,
and seeks damages, restitution, and injunctive relief, says the
complaint.
The Plaintiff is a citizen and resident of Concord, Massachusetts.
MSB is engaged in the business of providing retail banking services
to
Consumers.[BN]
The Plaintiff is represented by:
Patrick J. Sheehan, Esq.
WHATLEY KALLAS, LLP
101 Federal Street, 19th Floor
Boston, MA 02110
Phone: (617) 573-5118
Fax: (800)922-4851
Email: psheehan@whatleykallas.com
- and -
Jeffrey D. Kaliel, Esq.
Sophia G. Gold, Esq.
KALIELGOLD PLLC
1100 15th Street N W, 4th Floor
Washington, D.C. 20005
Phone: (202) 350-4783
Email: jkaliel@kalielpllc.com
sgold@kalielpllc.com
MINNEAPOLIS, MN: Goyette, et al., File Bid for Class Certification
------------------------------------------------------------------
In the class action lawsuit captioned as Goyette, et al., v. City
of Minneapolis et al., Case No. 0:20-cv-01302-WMW-DTS (D. Minn.),
the Plaintiffs ask the Court to enter an order certifying a class
inclusive of Plaintiffs and all other similarly situated
journalists against the Defendants the City of Minneapolis and the
Minneapolis Chief of Police in her official capacity.
The Plaintiffs include Jared Goyette, Craig Lassig, Katie Nelson,
Tannen Maury, Stephen Maturen, Edward Ou, Timothy Evans, Chris
Tuite, and The Communications Workers of America, On behalf of
themselves and other similarly situated individuals.
The Defendant includes City of Minneapolis; Minneapolis Chief of
Police Medaria Arradondo in his individual and official capacity;
Minneapolis Police Lieutenant Robert Kroll, in his individual and
official capacity; Minnesota Department of Public Safety
Commissioner John Harrington, in his individual and official
capacity, Minnesota State Patrol Colonel Matthew Langer, in his
individual and official capacity; and John Does 1-10, in their
individual and official capacities.
Minneapolis is a major city in Minnesota that forms "Twin Cities"
with the neighboring state capital of St. Paul. Bisected by the
Mississippi River, it's known for its parks and lakes. Minneapolis
is also home to many cultural landmarks like the Walker Art Center,
a contemporary art museum, and the adjacent Minneapolis Sculpture
Garden, famed for Claes Oldenburg's "Spoonbridge and Cherry"
sculpture.
A copy of the Plaintiffs' motion to certify class dated Aug. 4,
2022 is available from PacerMonitor.com at https://bit.ly/3cbXohz
at no extra charge.[CC]
The Plaintiffs are represented by:
Adam W. Hansen, Esq.
Colin Reeves, Esq.
APOLLO LAW LLC
333 Washington Avenue North, Suite 300
Minneapolis, MN 55401
Telephone: (612) 927-2969
Facsimile: (419) 793-1804
E-mail: adam@apollo-law.com
- and -
Karen G. Schanfield, Esq.
Pari I. McGarraugh, Esq.
FREDRIKSON & BYRON, P.A.
200 South Sixth Street, Suite 4000
Minneapolis, MN 55402-1425
Telephone: (612) 492-7000
E-mail: kschanfield@fredlaw.com
pmcgarraugh@fredlaw.com
- and -
Kevin C. Riach., Esq.
THE LAW OFFICE OF KEVIN C.
RIACH, PLLC
P.O. Box 270815
Vadnais Heights, MN 55127
Telephone: (612) 203-8555
E-mail: kevin@riachdefense.com
- and -
Teresa Nelson,Esq.
AMERICAN CIVIL LIBERTIES UNION OF
MINNESOTA
P.O. Box 14720
Minneapolis, MN 55414
Telephone: (651) 529-1692
E-mail: tnelson@aclu-mn.org
MP MANAGEMENT: Link Seeks Minimum & OT Wages for Delivery Drivers
-----------------------------------------------------------------
Megan Link, On behalf of herself and others similarly situated v.
MP Management No. 2, LLC.; MP Management No. 3, LLC; and Todd J.
Kuhn, Case No. 1:22-cv-01365 (N.D. Ohio, Aug. 2, 2022) seeks
appropriate monetary, declaratory, and equitable relief based on
the Defendants' willful failure to compensate the Plaintiff and
similarly-situated individuals with minimum and overtime wages as
required by the Fair Labor Standards Act and the Ohio Minimum Fair
Wage Standards Act.
The Plaintiff brings this action on behalf of herself and similarly
situated current and former delivery drivers who worked for the
Defendants at any point in the past three years and who elect to
opt in pursuant to FLSA, to remedy violations of the FLSA wage and
hour provisions by the Defendants.
Plaintiff Megan Link resides in Lakewood, Ohio. She worked as a
delivery driver for the Defendants' Marco's Pizza store located at
435 W Bagley Rd, Berea, Ohio from April 1, 2022 through July 15,
2022.[BN]
The Plaintiff is represented by:
James L. Simon, Esq.
LAW OFFICES OF SIMON & SIMON
5000 Rockside Road
Liberty Plaza -- Suite 520
Independence, Ohio
Telephone: (216) 525-8890
E-mail: james@simonsayspay.com
- and -
Michael L. Fradin, Esq.
THE LAW OFFICE OF MICHAEL L. FRADIN
8401 Crawford Ave. Ste. 104
Skokie, IL 60076
Telephone: (847) 644-3425
Facsimile: (847) 673-1228
E-mail: mike@fradinlaw.com
MURAD LLC: Faces Seger Suit Over Unsolicited Text Ads
-----------------------------------------------------
TIAGO SEGER, individually and on behalf of all others similarly
situated, Plaintiff v. MURAD, LLC, Defendant, Case No.
1:22-cv-22527 (S.D. Fla., Aug. 10, 2022) is a putative class action
brought against the Defendant pursuant to the Telephone Consumer
Protection Act and the Florida Telephone Solicitation Act.
According to the complaint, the Defendant engages in unsolicited
text messaging to promote its goods and services to those who have
not provided Defendant with their prior express written consent as
required by the FTSA. The Defendant also engages in telemarketing
without the requisite policies and procedures and training required
under the TCPA and its implementing regulations, says the suit.
The Defendant's alleged telephonic sales calls have caused
Plaintiff and the Class members harm, including violations of their
statutory rights, statutory damages, annoyance, nuisance, and
invasion of their privacy. Through this action, Plaintiff seeks an
injunction and statutory damages on behalf of himself and the Class
members, and any other available legal or equitable remedies
resulting from the unlawful actions of Defendant, the suit
asserts.
Murad, LLC is a skincare company based in California.[BN]
The Plaintiff is represented by:
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Boulevard Suite 1400
Ft. Lauderdale, FL 33301
Telephone: (954) 400-4713
E-mail: mhiraldo@hiraldolaw.com
- and -
Jibrael S. Hindi, Esq.
THE LAW OFFICES OF JIBRAEL S. HINDI
110 SE 6th Street Suite 1744
Ft. Lauderdale, FL 33301
MURPHY WELL: Fails to Pay Flowback Operators' OT, Escalera Claims
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JOSE EXCALERA, individually and on behalf of all others similarly
situated, Plaintiff v. MURPHY WELL CONTROL, LLC, Defendant, Case
No. 7:22-cv-00176 (W.D. Tex., August 16, 2022) brings this
collective action complaint against the Defendant for its alleged
violations of the Fair Labor Standards Act.
The Plaintiff was employed by the Defendant as a flowback operator
from approximately July 2018 until July 2022.
The Plaintiff asserts that he and other similarly situated were
misclassified by the Defendant as independent contractors. Although
they worked more than 40 hours per workweek, the Defendant paid
them on a flat daily basis without overtime regardless of the
number of hours worked per week. The Defendant failed to pay them
their lawfully earned overtime compensation at the rate of one and
one-half times their regular rate of pay for all hours worked in
excess of 40 per workweek, says the Plaintiff.
The Plaintiff seeks unpaid overtime compensation, for himself and
all other similarly situated flowback operators, against the
Defendant as well as liquidated damages, reasonable attorney's
fees, litigation costs and expenses, and other relief to which they
may be entitled at law or in equity.
Murphy Well Control, LLC provides oil and gas well monitoring
services to energy companies nationwide. [BN]
The Plaintiff is represented by:
Beatriz Sosa-Morris, Esq.
SOSA-MORRIS NEUMAN, PLLC
5612 Chaucer Drive
Houston, TX 77005
Tel: (281) 885-8844
Fax: (281) 885-8813
E-mail: BSosaMorris@smnlawfirm.com
MYLIFE.COM INC: Stipulation to Stay Pending Mediation Nixed
-----------------------------------------------------------
In the class action lawsuit captioned as JAMES UHARRIET, et al., v.
MYLIFE.COM, INC., Case No. 3:21-cv-08229-VC (N.D. Cal.), the Hon.
Judge Vince Chhabria entered an order denying stipulation to stay
pending mediation.
The Court said,"Less than a month before the close of fact
discovery, and less than two months before the motion for class
certification is due, the parties filed a stipulated request to
vacate all litigation deadlines because they just scheduled a
mediation to take place two months from now. That request is
denied. The named plaintiffs and their counsel have a
responsibility to diligently pursue the case on behalf of the
absent class members they hope to represent. The plaintiffs and
their counsel have not shown why they could not have scheduled a
mediation earlier, to take place before the close of discovery. If
the parties wish to attempt to reach a settlement before the close
of discovery, they are free to do so on their own or with the
assistance of a mediator who might currently be available to help
them."
MyLife is an American information brokerage firm founded by Jeffrey
Tinsley in 2002 as Reunion.com.
A copy of the Court's order dated Aug. 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3Az3lie at no extra charge.[CC]
NEW PRIME: Parties Must Show Cause Why Class Cert Should Be Sealed
------------------------------------------------------------------
In the class action lawsuit captioned as PETER NYACHIRA, on behalf
of himself and all other similarly situated persons, v. NEW PRIME,
INC., Case No. 21-03211-CV-S-BP (W.D. Mo.), the Hon. Judge Beth
Phillips entered an order directing the parties to show cause why
suggestion in support of motion to certify class should remain
sealed.
The Court said,"The fact that a party marked a document as
"Confidential" pursuant to the Protective Order does not, alone,
justify sealing a document in derogation of that right. Judicial
records may be sealed to protect privacy interests and various
categories of information, including personal information,
financial information, trade secrets, and confidential information
where disclosure might put a party at a competitive disadvantage.
However, the Court's review reveals nothing that apparently fits
these categories. Most if not all the information that has been
redacted and sealed consists of information that would be known to
each and every driver/trainee of the Defendant, and there is no
indication that those individuals are pledged to secrecy with a
confidentiality agreement. The information is also extremely
general and obvious. And there is no obvious explanation as to why
every exhibit must be completely sealed."
On July 28, 2022, and with the Court's permission, the Plaintiff
filed his Suggestion in Support of Motion to Certify Class under
seal, with a redacted version filed publicly. The Plaintiff also
filed all thirty-seven exhibits under seal.
A copy of the Court's order dated Aug. 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3AvU6z1 at no extra charge.[CC]
NEW YORK, NY: Perez-Pedemonti Files Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against The City of New York,
et al. The case is styled as Martha Perez-Pedemonti, individually,
and on behalf of all others similarly situated v. The City of New
York, Joni Kletter, Sosimo Fabian, Michael Levario, in their
individual capacities, Case No. 1:22-cv-06180-NRB (S.D.N.Y., July
20, 2022).
The nature of suit is stated as Other Civil Rights.
New York -- https://www.nyc.gov/ -- often called New York City
(NYC) to distinguish it from the State of New York, is the most
populous city in the United States.[BN]
The Plaintiff is represented by:
Cyrus E. Dugger, Esq.
THE DUGGER LAW FIRM, PLLC
Gotham Center
28-07 Jackson Ave., 5th Fl.
Long Island City, NY 11101
Phone: (646) 560-3208
Email: cd@theduggerlawfirm.com
NORTHSHORE UNIVERSITY: Ill. App. Affirms Dismissal of Kioutas Suit
------------------------------------------------------------------
In the case, ANNA KIOUTAS, individually and on behalf of all others
similarly situated, Plaintiff-Appellant v. NORTHSHORE UNIVERSITY
HEALTHSYSTEM, an Illinois not-for-profit corporation, individually
and d/b/a NORTHSHORE HOSPITAL, Defendant-Appellee, Case No.
1-21-0438 (Ill. App.), the Appellate Court of Illinois, First
District, Fifth Division, affirms the trial court's judgment
granting the Defendant's motion to dismiss.
On Nov. 18, 2016, Ms. Kioutas was involved in an automobile
accident, where there is third-party liability. She went to
NorthShore for treatment of her injuries. NorthShore placed a
medical lien for Ms. Kioutas' medical expenses against any
settlement she might recover from the third-party's insurer.
As a result of NorthShore's action, on May 22, 2019, Ms. Kioutas
filed a class action seven-count complaint in the circuit court of
Cook County against NorthShore. In the complaint, she alleged that
NorthShore refused to bill Medicare and her supplemental insurance
carrier but instead placed medical provider liens with the
third-party tortfeasor and their liability insurance carrier. She
asserted that NorthShore's actions: violated the Consumer Fraud and
Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West
2018)); were a breach of written contract; were a breach of implied
contract and constituted unjust enrichment; and were an intentional
interference with her contractual relationship with her health
insurance providers. She attached to her complaint the "Agreements
and Authorizations" form she signed at NorthShore, which forms the
basis for her claim under the Act.
In response to Ms. Kioutas' complaint, NorthShore filed a motion to
strike the class allegations, as well as a motion to dismiss the
complaint in its entirety, pursuant to section 2-615 of the Code of
Civil Procedure (735 ILCS 5/2-615 (West 2018)).
Ms. Kioutas requested leave to file an amended complaint, which the
trial court granted. In the amended complaint, she referenced
exhibit A, a medical invoice which formed the basis for the medical
provider lien, and exhibit B, which was the "Agreements and
Authorizations" form. Both exhibits were attached to the amended
complaint. Exhibit A shows that NorthShore attempted to bill
Medicare, but Medicare rejected the invoice. NorthShore withdrew
its original motion to dismiss and filed a new motion to dismiss
pursuant to section 2-615 based on the amended complaint. In its
motion to dismiss, NorthShore asserted, inter alia, that it did
attempt to bill Medicare first, despite Ms. Kioutas' claims to the
contrary. The trial court allowed the parties to file briefs on the
motion to dismiss and held oral arguments.
On Feb. 4, 2021, the trial court entered a detailed written order
on the motion to dismiss. In its order, the court found that "the
invoices attached to the Complaint show that NorthShore billed
Medicare. Accordingly, the invoices contradict the allegations in
the Complaint that NorthShore failed to bill Medicare as an
asserted ground for Ms. Kioutas' claims." Despite, this finding,
the court still analyzed the arguments in each of the complaint's
counts on their face, assuming the veracity of each of the
allegations within the counts.
To address count I, the claim based on the Act, the court analyzed
the Illinois Lien Act (Lien Act) (770 ILCS 23/10(a) (2018)) and
relevant case law to determine that NorthShore was not required to
bill Medicare before pursuing a lien against the third-party
tortfeasor. Additionally, the court reviewed federal law and stated
that a medical provider, "who is seeking payment from Medicare, is
able to proceed against the 'primary payor,' here the tortfeasor's
insurer, which is liable for the injury to the medical provider's
patient. The regulations do not require the medical provider to
seek payment from Medicare before proceeding against the
tortfeasor's insurer."
As such, the court dismissed count I of Ms. Kioutas' complaint. At
the same time, the court also dismissed the remaining counts of the
complaint on various grounds. The trial court continued the case
for status on a final order until March 2021.
On March 22, 2021, after Ms. Kioutas informed the court that she
was not going to file a motion to reconsider or seek leave to amend
the complaint, the court entered its final order dismissing the
entire complaint with prejudice.
On April 19, 2021, Ms. Kioutas filed her notice of appeal. On
appeal, Ms. Kioutas argues that the trial court erred in dismissing
her complaint by: (1) basing its decision on an issue not contained
in the complaint; and (2) failing to consider NorthShore's
"Agreements and Authorizations" form.
Initially, the Court of Appeals notes, as the trial court did, that
Ms. Kioutas' allegations that NorthShore did not bill Medicare
first cannot be taken as true because the exhibit attached to her
complaint shows otherwise. In that attached invoice, NorthShore
attempted to bill Medicare, but Medicare rejected it. As such, Ms.
Kioutas' claims fail to state a claim on their face because they
are all based on the false allegation that Medicare was not billed
initially. In other words, count I of her complaint did not state a
claim since the invoice attached to the complaint directly disputed
the claim made in the complaint. The court did not err in
dismissing count I on the basis that her allegations were factually
inaccurate and insufficient to state a claim.
However, the Court of Appeals nonetheless addresses the merits of
each argument raised by Ms. Kioutas, assuming her allegations could
be taken as true.
Ms. Kioutas argues that the trial court based its decision on an
issue that was not alleged in the complaint. Specifically, she
claims the trial court examined the validity of the medical lien
placed on the third-party tortfeasor and the tortfeasor's liability
insurance carriers. The Court of Appeals also examined whether
Northshore had authority to do so. It initially notes that Ms.
Kioutas did not allege in her complaint that NorthShore did not
have the authority to place a medical lien on the third-party
tortfeasor's liability insurance carrier and a potential
settlement; rather, she alleged that NorthShore was required to
bill her health insurance or Medicare first. However, despite Ms.
Kioutas' argument that she now presents, the trial court did not
simply overlook the issue of whether Ms. Kioutas stated a claim
under the Act. Instead, it analyzed whether, when taking the
allegations as true, Ms. Kioutas' complaint stated a claim. The
court found that she did not based on state and federal law.
Assuming arguendo that Northshore placed a medical lien against a
future settlement or the tortfeasor's liability insurance before
billing Ms. Kioutas' health insurance or Medicare, it would not
have been a violation of the Act. Accordingly, even under those
circumstances as alleged by Ms. Kioutas, she cannot state a claim
under the Act on these facts. As such, the trial court did not err
in dismissing count I of the complaint.
Ms. Kioutas further argues that the trial court erred when making
its determination by not reviewing the "Agreements and
Authorizations" form that she signed. As the Court of Appeals
noted, it was impossible for NorthShore to violate the Act if it
complied with Illinois law. If the factual allegations in the
complaint are taken as true, they still could not amount to a
violation of the Act, and consequently, the court did not need to
look at the "Agreements and Authorizations" form. Thus, the trial
court did not err by dismissing the complaint pursuant to section
2-615, specifically as to count I, without looking at the
"Agreements and Authorizations" form.
The Court of Appeals, therefore, affirms the trial court's judgment
dismissing Ms. Kioutas' complaint.
A full-text copy of the Court's Aug. 12, 2022 Order is available at
https://tinyurl.com/nhdnh23a from Leagle.com.
OAK VIEW GROUP: Bour Sues Over Unpaid Compensations
---------------------------------------------------
Kirstinn Bour, individually and on behalf of all others similarly
situated v. Global Spectrum, L.P., Oak View Group, LLC, and Does 1
through 20, inclusive, Case No. 21CV400275 (Cal. Super. Ct., Santa
Clara Cty., July 12, 2022), is brought to seek monetary relief
against Defendants on behalf of herself and all others similarly
situated in California to recover, among other things, unpaid wages
and benefits, interest, attorneys' fees, costs and expenses.
The Plaintiff alleges that Defendants have engaged in a systematic
pattern of wage and hour violations unfair the California Labor
Code and Industrial Welfare Commission ("IWC") Wage Orders, all of
which contribute to Defendants' deliberate unfair competition. The
Plaintiff is informed and believes, and thereon alleges, that the
Defendants have increased their profits by violating state wages
and hour laws by, among other things: failing to pay all wages
(including minimum wages and overtime wages); failing to provide
lawful meal periods or compensation in lieu thereof; failing to
authorize or permit lawful rest breaks or provide compensation in
lieu thereof; failing to provides accurate itemized wage
statements; failing to pay wages timely during employment; and
failing to provide all wages due upon separation of employments,
says the complaint.
The Plaintiff was employed by the Defendants in California during
the Class Period.
The Defendant provides services or goods throughout
California.[BN]
The Plaintiff is represented by:
Samuela Wong, Esq.
Kashif Haque, Esq.
Jessica L. Campbell, Esq.
AEGIS LAWFIRM, PC
9811 Irvine Center Drive, Suite 100
Irvine, CA 92618
Phone: (949) 379-6250
Facsimile: (949) 379-6251
Email: icampbell@aegislawfirm.com
OMEGA PROJECT: Fails to Pay Workers' OT Under FLSA, Vinson Says
---------------------------------------------------------------
JAMES VINSON, individually and for others similarly situated v.
OMEGA PROJECT SOLUTIONS, INC., Case No. 4:22-cv-02582 (S.D. Tex.,
Aug. 3, 2022) is a class action seeking to recover unpaid overtime
wages and other damages owed under the Fair Labor Standards Act.
Omega allegedly failed to pay Mr. Vinson and other workers like
him, overtime as required by the FLSA. Instead, Omega paid Vinson
and other workers like him the same hourly rate for all hours
worked, including those in excess of 40 in a workweek, says the
suit.
Throughout his employment with Omega, Vinson was paid the same
hourly rate for all hours worked (including those hours in excess
of 40 hours in a single workweek) with no overtime compensation,
the suit added.
Omega provides staffing solutions to projects ranging from
engineering, power industry, oil and gas, and infrastructure and
buildings.[BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Richard M. Schreiber, Esq.
JOSEPHSON DUNLAP, LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
rschreiber@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
11 Greenway Plaza, Suite 3025
Houston, Texas 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
ONE SOURCE TECHNOLOGY: Savedra FCRA Suit Removed to N.D. California
-------------------------------------------------------------------
The case styled as Josephine Savedra, individually and on behalf of
all others similarly situated v. One Source Technology, LLC, d/b/a
Asurint, Albertsons Companies, Inc., Case No. 22-CV-398710 was
removed from the Superior Court of California, County of Santa
Clara, to the U.S. District Court for the Northern District of
California on July 8, 2022.
The District Court Clerk assigned Case No. 5:22-cv-04001-EJD to the
proceeding.
The lawsuit is brought over alleged violation of the Fair Credit
Reporting Act.
One Source Technology, LLC, doing business as Asurint --
https://www.asurint.com/ -- provides web-based employment
background screening solutions.[BN]
The Plaintiff is represented by:
Mark Dee Potter, Esq.
CENTER FOR DISABILITY ACCESS
100 Pine Street, Suite 1250
San Francisco, CA 94111
Phone: (858) 375-7385
Fax: (888) 422-5191
Email: mark@potterhandy.com
- and -
James Michael Treglio, Esq.
POTTER HANDY, LLP
100 Pine St., Ste 1250,
San Francisco, CA 94111
Phone: (619) 933-3598
Email: jtreglio@tregliolaw.com
The Defendant is represented by:
Mary Catherine Kamka, Esq.
TROUTMAN PEPPER HAMILTON SANDERS LLP
Three Embarcadero Center, Suite 800
San Francisco, CA 94111
Phone: (415) 477-5751
Fax: (415) 477-5710
Email: marykate.kamka@troutman.com
- and -
Rod M. Fliegel, Esq.
LITTLER MENDELSON P.C.
333 Bush Street, 34th Floor
San Francisco, CA 94104
Phone: (415) 433-1940
Fax: (415) 399-8490
Email: rfliegel@littler.com
OUR DREAM: Fails to Pay Delivery Drivers' Adequate Wages, Suit Says
-------------------------------------------------------------------
RUSSELL POWELL, individually and on behalf of all others similarly
situated v. OUR DREAM PIZZA, INC., Case No. 8:22-cv-02542-TMC
(D.S.C., Aug. 3, 2022) seeks declaratory judgment, monetary
damages, liquidated damages, costs, and a reasonable attorneys'
fee, as a result of the Defendant's policy and practice of failing
to pay the Plaintiff sufficient wages under the Fair Labor
Standards Act and the South Carolina Payment of Wages Act.
The Defendant employed Plaintiff as an hourly-paid delivery driver
from July of 2016 until September of 2020.
The Defendant owns and operates Domino's Pizza restaurants in South
Carolina.[BN]
The Plaintiff is represented by:
Jacob J. Modla, Esq.
THE LAW OFFICES OF JASON E. TAYLOR, P.C.
115 Elk Avenue
Rock Hill, SC 29730
Telephone: (803) 328-0898
E-mail: jmodla@jasonetaylor.com
- and -
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Pkwy, Suite 510
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
E-mail: josh@sanfordlawfirm.com
PENNSYLVANIA: Court Awards Wallace $100-Mil. in Punitive Damages
----------------------------------------------------------------
In the case, FLORENCE WALLACE, et al., Plaintiffs v. ROBERT J.
POWELL, et al., Defendants, Civil Action No. 3:09-CV-286 (M.D.
Pa.), Judge Christopher C. Conner of the U.S. District Court for
the Middle District of Pennsylvania awards the Plaintiffs both
compensatory and punitive damages, including $100 million in
punitive damages against Defendants Mark A. Ciavarella and Michael
T. Conahan.
Although most memories fade over the years, certain events are so
punctuated by overwhelming circumstances and emotions that no
amount of time can erase their mark. Tragically, for many young
citizens of the Commonwealth, the day they were adjudicated
delinquent by former judge, now convicted felon, Mark A.
Ciavarella, is such an event. Last fall, the Court received
testimony from over 300 witnesses, who testified for the very first
time about their experiences between January 2003 and May 2008 in
Luzerne County juvenile court. Their collective testimony paints
the portrait of justice derailed by a presiding judge who ruled
with breathtaking arrogance and an unfathomable disregard of due
process.
Mr. Ciavarella, along with his co-defendant, former judge and
fellow convicted felon, Michael T. Conahan, orchestrated the
shutdown of Luzerne County juvenile facilities in 2002 to make way
for new detention centers. Unbeknownst to the public, however, both
Ciavarella and Conahan received massive payouts for their
assistance in the construction and eventual filling of the new
detention centers. After these misdeeds came to light, the
Plaintiffs initiated suit against various individuals and entities
responsible for this scheme.
The Plaintiffs filed suit in 2009 against numerous Defendants,
including Ciavarella and Conahan. The operative complaints allege
constitutional violations pursuant to 42 U.S.C. Section 1983,
violations of the Racketeer Influenced and Corrupt Organizations
Act, 18 U.S.C. Section 1962, et seq., civil conspiracy, and false
imprisonment. In October 2013, the clerk entered default against
Conahan for failure to plead or otherwise defend. In December 2013,
the Court granted the Plaintiffs' application for default judgment
against Conahan on all issues of liability for which he had not
been afforded judicial immunity. In January 2014, it granted their
motion for partial summary judgment against Ciavarella, also on all
issues for which he was not protected by judicial immunity. The
Court determined Ciavarella and Conahan were both liable under
Section 1983 for violating the Plaintiffs' right to an impartial
tribunal as well as conspiracy to violate their right to an
impartial tribunal. Judge A. Richard Caputo deferred his
determination on damages for both Defendants.
Between 2012 and 2015, the Court approved three sets of settlements
between the Plaintiffs and many of the Defendants, except
Ciavarella and Conahan, including: Robert Mericle and Mericle
Construction, Inc.; Mid-Atlantic Youth Services Corp., PA Child
Care, LLC, and Western Child Care, LLC; and Robert J. Powell,
Vision Holdings, LLC, and Powell Law Group, P.C.
In June 2020, the Plaintiffs moved for a hearing to assess damages
against Ciavarella and Conahan. After several delays due to the
ongoing COVID-19 pandemic, the Court received testimony in
September and October 2021, to determine the Plaintiffs' damages
resulting from their now-vacated juvenile adjudications by
Ciavarella between Jan. 1, 2003 and May 31, 2008 in Luzerne County.
In separate correspondence filed to the docket, Ciavarella and
Conahan waived their right to participate at trial.
The only matter pending before the Court is the issue of damages.
Judge Conner now sets forth the Court's decision on damages
pursuant to Federal Rules of Civil Procedure 52(a) and
55(b)(2)(B).
The Court previously granted summary judgment in favor of the
Plaintiffs on their claims against Defendants Ciavarella and
Conahan on all issues of liability for which the Defendants were
not protected by immunity. This determination of liability
included, inter alia, defendants' violations of the right to an
impartial tribunal as well as conspiracy to violate the Plaintiffs'
right to an impartial tribunal as guaranteed by the Fifth, Sixth,
and Fourteenth Amendments to the United States Constitution. The
Plaintiffs seek both compensatory and punitive damages.
As to the compensatory damages, Judge Conner concludes that the
Plaintiffs are entitled to compensatory damages at an initial base
rate of $1,000 per day of wrongful detention. The Court has
prepared a Damages Appendix which sets forth the number of days
that each Plaintiff was wrongfully detained. For certain
individuals who could not recall the precise length of their
placements, it has estimated the number of days in detention based
upon the testimony, record evidence, and the submissions of the
Plaintiffs' counsel.
Thereafter, Judge Conner calculated the Plaintiffs' initial
aggregate awards by multiplying the number of days in detention
times the base rate of $1,000. Having determined the initial
aggregate award, he adjusted these awards in a final step to
meaningfully reflect the unique circumstances and experiences of
each Plaintiff. He emphasizes that he has carefully considered all
record evidence, including multiple reviews of testimony received
at trial, and he has varied the initial aggregate award to reflect
his necessarily subjective view of the appropriate amount of
compensatory damages for each participating Plaintiff.
As to the punitive damages, Judge Conner finds that children and
adolescents suffered unspeakable physical and emotional trauma at
the hands of two judicial officers who swore by solemn oath to
uphold the law. Instead, Ciavarella and Conahan abandoned their
oath and breached the public trust. They conspired to close
existing detention facilities and construct new ones in exchange
for millions of dollars and the steady placement of Luzerne County
youths. Their cruel and despicable actions victimized a vulnerable
population of young people, many of whom were suffering from
emotional issues and mental health concerns. These wrongful acts
warrant punitive damages in order to achieve the objectives of
deterrence and retribution. Furthermore, the circumstances of the
case far exceed "a bare violation" of the Plaintiffs'
constitutional right to an impartial tribunal. And due to
Ciavarella and Conahan's status as former state officials, Judge
Conner concludes punitive damages assist in vindicating "the public
interest in preventing violations of civil rights."
In arriving at an appropriate dollar amount, he is mindful of the
remaining guideposts for reasonableness, namely: the disparity of
the harm suffered by the Plaintiffs and the punitive damage award,
and the difference between the punitive damages award and the civil
penalties authorized or imposed in comparable cases. In light of
the Supreme Court's specific observations that substantial
compensatory awards should result in a smaller ratio between
punitive and compensatory damages, he concludes that a ratio
slightly less than 1:1 satisfies the strictures of due process in
the instant case.
Judge Conner concludes that the Plaintiffs are the tragic human
casualties of a scandal of epic proportions. The law is powerless
to restore to them the weeks, months, and years lost because of the
actions of the Defendants. But he hopes that by listening to their
experiences and acknowledging the depth of the damage done to their
lives, he can provide them with a measure of closure and, with the
Memorandum Opinion, ensure that their stories are never forgotten.
Based on the individualized review of the record evidence, Judge
Conner awards the Plaintiffs compensatory damages as set forth in
the Damages Appendix. He further awards $100 million in punitive
damages against Defendants Ciavarella and Conahan. An appropriate
order will be issued.
A full-text copy of the Court's Aug. 16, 2022 Memorandum is
available at https://tinyurl.com/55bbmy8z from Leagle.com.
PEOPLECONNECT INC: Abraham, et al., Seek to Certify Class
---------------------------------------------------------
In the class action lawsuit captioned as LAWRENCE GEOFFREY ABRAHAM,
ALICE ZHANG, WAYNE TSENG, and JAMAAL CARNEY, on behalf of
themselves and all others similarly situated, v. PEOPLECONNECT,
INC., a Delaware Corporation, Case No. 3:20-cv-09203-EMC (N.D.
Cal.), the Plaintiffs ask the Court to enter an order:
1. certifying the following Class pursuant to Rule 23(a),
Rule 23(b)(2), and Rule 23(b)(3):
"All persons residing in the State of California who are
not registered users of Classmates.com and whose names and
yearbook photographs were searchable on the Classmates.com
website at any time between December 18, 2018, and the
present;"
2. appointing them as Class Representatives; and
3. appointing Morgan & Morgan LLP, Turke & Strauss LLP, and the
Law Office of Benjamin R. Osborn as Class Counsel.
PeopleConnect, which owns and operates the website
www.classmates.com, is in the business of selling individual's
names, childhood photographs, and personal information without
their consent. PeopleConnect uses California residents' names and
childhood photographs in advertisements promoting paid
subscriptions to Classmates, the lawsuit says.
The Plaintiffs' and Class members' claims arise from
PeopleConnect's use of their names and yearbook photographs in
public webpages designed to advertise subscriptions to
Classmates.com. digital copies of yearbooks containing the names
and photographs of minors belonging to millions of Californians.
On December 18, 2020, Plaintiff Abraham filed a class action
complaint in the United States District Court for the Northern
District of California asserting claims under California's Right of
Publicity Statute On December 19, 2021, at PeopleConnect's request,
the Plaintiff Abraham filed an unopposed motion to stay the
district court case pending resolution of PeopleConnect's
arbitration appeal.
On March 18, 2022, a three-judge panel of the Ninth Circuit
unanimously affirmed this Court's decision denying PeopleConnect's
motion to compel arbitration.
On August 4, 2022, pursuant to a stipulated agreement with
PeopleConnect, Plaintiffs filed a First Amended Complaint (FAC)
adding Alice Zhang, Wayne Tseng, and Jamaal Carney as 15 additional
named Plaintiffs and proposed Class Representatives.
A copy of the Plaintiffs' motion dated Aug. 5, 2022 is available
from PacerMonitor.com at https://bit.ly/3CqXU62 at no extra
charge.[CC]
The Plaintiffs are represented by:
Michael F. Ram, Esq.
Marie N. Appel, Esq.
MORGAN & MORGAN
COMPLEX LITIGATION GROUP
711 Van Ness Avenue, Suite 500
San Francisco, CA 94102
Telephone: (415) 358-6913
Telephone: (415) 358-6293
E-mail: mram@forthepeople.com
mappel@forthepeople.com
- and -
Raina Borrelli, Esq.
Sam Strauss, Esq.
TURKE & STRAUSS LLP
613 Williamson St., Suite 201
Madison, Wisconsin 53703-3515
Telephone: (608) 237-1775
Facsimile: (608) 509-4423
Michael F. Ram (SBN 104805)
E-mail: raina@turkestrauss.com
sam@turkestrauss.com
- and -
Benjamin R. Osborn, Esq.
LAW OFFICE OF BENJAMIN R. OSBORN
102 Bergen St.
Brooklyn, NY 11201
Telephone: (347) 645-0464
E-mail: ben@benosbornlaw.com
POPPIN CAR: Olvera Sues Over Workers' Unpaid Overtime Wages
-----------------------------------------------------------
DOMINGO OLVERA and EGBERTO SABANDO, on behalf of themselves and all
other persons similarly situated, Plaintiffs v. POPPIN CAR WASH OF
NEW JERSEY, CORP. a/k/a VAN HOUTEN CAR WASH, and DANIEL ALVAREZ,
individually Defendants, Case No. 2:22-cv-04990 (D.N.J., Aug. 10,
2022) arises from the Defendants engagement in a policy and
practice of requiring Plaintiffs and members of the putative
collective to regularly work in excess of 40 hours per week,
without providing overtime compensation as required by the Fair
Labor Standards Act and the New Jersey State Wage and Hour Law.
Plaintiff Olvera was employed by Defendants as a laborer,
performing car washing and detailing duties from August 2019 until
mid-March 2022.
Plaintiff Sabando was employed by Defendants as a laborer,
performing car washing, detailing, and mechanical duties from 2010
until September 2021.
Poppin Car Wash of New Jersey, Corp. is a local car wash service
provider based in Passaic, New Jersey.[BN]
The Plaintiffs are represented by:
Andrew Glenn, Esq.
Jodi J. Jaffe, Esq.
JAFFE GLENN LAW GROUP, P.A.
300 Carnegie Center, Suite 150
Princeton, NJ 08540
Telephone: (201) 687-9977
Facsimile: (201) 595-0308
E-mail: aglenn@jaffeglenn.com
jjaffe@jaffeglenn.com
PORTFOLIO RECOVERY: Suxstorf Suit Moved to Milwaukee Circuit Court
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In the case, TOMAS SUXSTORF, Plaintiff v. PORTFOLIO RECOVERY
ASSOCIATES LLC (E.D. Wis.), Judge Pamela Pepper of the U.S.
District Court for the Eastern District of Wisconsin grants the
Plaintiff's motion to remand the lawsuit to the Milwaukee County
Circuit Court and his request for costs and fees incurred as a
result of the removal.
The Plaintiff is a resident of Milwaukee County. He says that the
Defendant is a debt collection agency with its principal place of
business in Norfolk, Virginia. He alleges that he received a debt
collection letter from the Defendant on June 16, 2020, "regarding
an alleged debt owed to it with an 'Original Creditor' listed as
'U.S. BANK NATIONAL ASSOCIATION D/B/A ELAN FINANCIAL SERVICES.'"
The Defendant filed a copy of the letter. The Plaintiff says he
believes the debt referred to in the letter was incurred from his
use of a personal credit card. He also believes that the letter is
a computer-generated form letter with information specific to him,
and that the Defendant used such letters to collect alleged debts.
According to the Plaintiff, the Defendant purchased his account for
"as little as 4 cents per dollar, and at most 10 cents per dollar,
of the face value of the account." He says he was confused and
misled by the letter and that an unsophisticated consumer also
would be confused and misled by the letter. He says that he was
required to spend time and money investigating the letter and the
consequences of his response.
The Defendant has answered the complaint. It has asserted as an
affirmative defense that the "Plaintiff has not incurred an injury
in fact, and he does not therefore have standing under Article III
of the United States Constitution to bring the instant claims."
Count I of the complaint alleges that the defendant violated the
FDCPA - 15 U.S.C. Sections 1692e and 1692e(10), by soliciting
personal financial information for the purported purpose of
determining whether he qualifies for suspended collections based on
a financial hardship where the primary purpose of such information
would be used for the purposes of assessing whether or not to bring
a lawsuit against the Plaintiff, the letter includes
representations which are false, deceptive, and misleading and
communicate with the Plaintiff in a deceptive manner. Count II
alleges that the Defendant violated the WCA, Wis. Stat. Section
426.110, in the same way.
On Sept. 1, 2021, the Defendant removed the case from Milwaukee
County Circuit Court. The Plaintiff had sued, individually and on
behalf of others, for violations of the Fair Debt Collection
Practices Act, 15 U.S.C. Sections 1692(a)-(e), and the Wisconsin
Consumer Act, Wis. Stat. Section 421.102(2).
On Sept. 16, 2021, the Plaintiff filed a motion to remand to state
court, arguing that the Court lacks subject matter jurisdiction. He
argued that the complaint did not allege a "concrete injury"
sufficient to assert Article III standing. He also asked to award
him fees incurred due to the Defendant's improper removal.
The Defendant responds that the Plaintiff's claims for actual
damages satisfy the concrete injury prong for Article III standing.
It next argues that remand would be improper as to the class
claims.
Judge Pepper holds that the natural consequence of keeping this
case in federal court would be that a plaintiff who lacked a
concrete injury of his own would be seeking to act as the
representative of a class plaintiffs who may have suffered a
concrete injury. It is unlikely that a federal court would find an
uninjured plaintiff adequate under Rule 23 to represent injured
class members. Because the Defendant has failed to satisfy its
burden of demonstrating that the Plaintiff has Article III standing
to proceed in federal court, she grants the Plaintiff's motion and
remands the case to Milwaukee County Circuit Court.
That means Judge Pepper must consider the Plaintiff's request for
fees and expenses. The Plaintiff asserts that the Defendant's
choice to remove the case was objectively unreasonable given
Seventh Circuit case law on Article III standing. He points out
that the Defendant removed this case to federal court after the
Seventh Circuit had issued numerous decisions indicating that
claims like his did not state concrete injuries in fact sufficient
to confer Article III standing.
Judge Pepper grants the Plaintiff's request to award fees and
costs. The Defendant's arguments that the Plaintiff suffered a
concrete injury are curious given the third affirmative defense
asserted in the answer: "PRA asserts that the Plaintiff has not
incurred an injury in fact, and the Plaintiff does not therefore
have standing under Article III of the United States Constitution
to bring the instant claims." Its assertion that he could have
crafted his complaint to avoid federal court is not persuasive or
relevant. Its argument that an allegation of damages coupled with
an intent to pursue those damages constitutes concrete injury is
unsupported. Its failure to address any of the Seventh Circuit's
decisions finding no concrete injury is troubling.
Judge Pepper notes that it was objectively unreasonable for the
Defendant to remove the case to federal court, because established
case law was clear at the time of removal that the Plaintiff had
not alleged a concrete injury sufficient to confer Article III
standing. Judge Pepper orders the Defendant to pay attorneys' fees
and costs under 28 U.S.C. Section 1447(c).
By the end of the day on Aug. 26, 2022, the Plaintiff was to file
an accounting of costs and fees. Judge Pepper orders that if the
Defendant wishes to object to that accounting, it must file its
objection by the end of the day on Sept. 2, 2022.
A full-text copy of the Court's Aug. 12, 2022 Order is available at
https://tinyurl.com/54s6dayw from Leagle.com.
PRAIRIE VILLAGE: Church Mutual Wins Bid for Judgment on Pleadings
-----------------------------------------------------------------
Judge Charles P. Kocoras of the U.S. District Court for the
Northern District of Illinois, Eastern Division, grants the
Plaintiff's motion for judgment on the pleadings in the lawsuit
styled CHURCH MUTUAL INSURANCE COMPANY, now known as CHURCH MUTUAL
INSURANCE COMPANY, S.I., Plaintiff v. PRAIRIE VILLAGE SUPPORTIVE
LIVING, LLC, a/k/a EAGLE's VIEW SUPPORTIVE LIVING; and BRIAN FIELD,
Defendants, Case No. 21 C 3752 (N.D. Ill.).
The case concerns an insurance coverage dispute between Plaintiff
Church Mutual, and its insured, Defendant Prairie Village, relative
to an underlying putative class action lawsuit commenced against it
by its former employee, Brian Field.
Mr. Field, asserting claims on behalf of himself and a
yet-to-be-certified class, alleges Prairie Village unlawfully
collected, used, and disseminated biometric identifiers in
violation of the Biometric Information Privacy Act ("BIPA"). Church
Mutual seeks a declaration that it has no duty to defend or
indemnify Prairie Village with respect to Field's lawsuit and moves
for judgment on the pleadings under Federal Rule of Civil Procedure
12(c).
Church Mutual issued four policies to Prairie Village between April
2018 and April 2022, which included Employment Practices Liability
("EPL") Coverage and General Liability ("GL") Coverage. Church
Mutual argues Field's allegations establish it does not owe Prairie
Village a defense or indemnification under the following
exclusions: (1) the exclusion for "violations of laws applicable to
employers" within the EPL policy; (2) the "employment related
practices" exclusion within the GL policy; and (3) the Cyber
Liability Exclusion in the GL policy.
The EPL Coverage under the Policies provide that Church Mutual will
pay for "'loss' arising from any claim of injury arising out of a
'wrongful employment practice' to which this insurance applies,"
but has "no duty to defendant the insured against any 'suit'
seeking payment for 'loss' to which this insurance does not apply."
"Wrongful employment practice" is defined, in relevant part, as
"any actual or alleged . . . [e]mployment related false arrest,
wrongful detention or imprisonment, malicious prosecution, libel,
slander, defamation of character, or invasion of privacy." The EPL
policy contains an exclusion for "Violations of Laws Applicable to
Employers."
Church Mutual also relies on the Employment Related Practices (ERP)
Exclusion to GL coverage, which states that this insurance does not
apply to personal injury that arises out of any refusal to employ;
termination of employment; coercion, demotion, et al.; or
consequential personal injury as a result of the above. The
exclusion applies where the insured is liable either as an employer
or in any other capacity.
The GL policy defines "personal injury" to include oral or written
publication of material that violates a person's right of privacy.
Finally, the Cyber Liability Exclusion of the GL coverage provides
that the insurance does not apply to "3. Recording and Distribution
of Material or Information in Violation of Law." "Bodily injury,
property damage, personal injury, or advertising injury arising
directly or indirectly out of any action or omission that violates
or is alleged to violate:" a. The Telephone Consumer Protection Act
(TCPA); b. The CAN-SPAM Act of 2003; c. The Fair Credit Reporting
Act (FCRA), including the fair and Accurate Credit Transactions Act
(FACTA); or d. Any federal, state, or local statute, ordinance, or
regulation, other than the TCPA, CAN-SPAM Act of 2003, or FCRA and
their amendments and additions, that addresses, prohibits, or
limits the printing, dissemination, disposal, collecting,
recording, sending, transmitting, communicating, or distribution of
material or information.
Church Mutual now moves for judgment on the pleadings under Rule
12(c), arguing it has no duty to defend or indemnify Prairie
Village in the Field lawsuit based on three separate exclusions in
the EPL and GL policies. Prairie Village argues that even if the
exclusions under the GL policy apply, Church Mutual would still owe
a duty to defend under the EPL policy. Church Mutual also moves to
dismiss the counterclaims asserted against it by Field and Prairie
Village.
Judge Kocoras notes that in Illinois, the duty to defend is broader
than the duty to indemnify, citing Am. Bankers Ins. Co. of Fla. v.
Shockley, 3 F.4th 322, 327 (7th Cir. 2021). When determining
whether an insurer must defend an insured, Illinois courts compare
the allegations of the underlying complaint to the relevant policy
provisions. If any of the complaint's allegations even potentially
fall within a policy's coverage, the insurer is obligated to defend
its insured. However, if the complaint does not state facts
bringing the case within or potentially within coverage, there is
no duty to defend.
In denying Prairie Village's request for coverage, Church Mutual
relies on multiple exclusions: the Violation of Laws Applicable to
Employers Exclusion of the EPL policy and the ERP Exclusion and
Cyber Liability Exclusion in the GL policy. The primary focus of
Church Mutual's motion is on the EPL coverage.
The EPL coverage provides that Church Mutual will pay for "'loss'
arising from any claim of injury arising out of a 'wrongful
employment practice' to which this insurance applies," but has "no
duty to defendant the insured against any 'suit' seeking payment
for 'loss' to which this insurance does not apply." For purposes of
its motion, Church Mutual concedes Field's BIPA claim alleges a
privacy-based "wrongful employment practice" as defined in the EPL
coverage part.
Importantly, Church Mutual argues that the EPL coverage part
clearly provides that if the at-issue loss arises solely from a
claim of injury constituting a "wrongful employment practice"--as
Church Mutual says is the case here--only EPL coverage is relevant
and no other coverage part applies. This is because the EPL
coverage form provides that "Except for the insurance provided by
this coverage form, the policy to which this coverage form is
attached does not apply to any claim or 'suit' seeking damages
arising out of any 'wrongful employment practice.'"
The Defendants do not directly address Church Mutual's argument on
this point, Judge Kocoras says. Nor do the Defendants argue that
Field's claims do not arise from a "wrongful employment practice"
as defined under the EPL coverage part. The Court agrees with
Church Mutual that the EPL coverage is the only coverage that
matters for purposes of this motion.
Church Mutual contends Field's allegations of a wrongful employment
practice trigger the Violation of Laws Applicable to Employers
exclusion within the EPL coverage part. This exclusion exempts from
coverage any claim arising out of ERISA or similar statute, as well
as any claim based on, attributable to, or arising out of any
violation of any insured's responsibilities or duties required by
any other federal, state, or local statutes, rules, or regulations.
Church Mutual contends BIPA is one of those statutes because it
imposes responsibilities on Prairie Village.
The exclusion does not apply, however, to claims under Title VII,
the ADA, the ADEA, the FMLA, the Equal Pay Act, the Pregnancy
Discrimination Act, the Immigration and Reform and Control Act, the
Genetic Information Nondiscrimination Act, "or to any rules or
regulations promulgated under any of the foregoing and amendments
thereto or any similar provisions of any federal, state, or local
law." The Defendants argue BIPA is "similar" to the specifically
identified exempted laws because it "protects employee rights" and
is thus "aligned" with those laws.
Judge Kocoras points out that no other BIPA case out of this
District (or any other) has construed either EPL coverage in this
context, or this exclusion specifically. If someone were to add
BIPA to the list of exempted statutes, "it would stick out like a
sore thumb." The enumerated laws proscribe discrimination in one
form or another and are applicable to (although not limited to)
employers.
The Court agrees with Church Mutual that the provisions of BIPA are
not "similar" to any of the enumerated laws, as BIPA has nothing to
do with discrimination. Rather, BIPA imposes responsibilities on
all "private entities"--including employers--and "regulates the
collection, use, storage, and retention of biometric identifiers
and information." In other words, BIPA is categorically different
than the enumerated exempted statutes, Judge Kocoras holds.
The Defendants contend Church Mutual's reading of the exclusion
would render EPL coverage "nearly worthless, because every
potential statutory claim that conceivably could be covered as an
employment practice would also be excluded as based on a law
applicable to an employer." "Surely," the Defendants say, "that
cannot be what the parties intended." But the Defendants'
contention is belied by the plain language of exclusion, which
explicitly provides that certain statutory claims are covered under
the policy, Judge Kocoras points out.
The underlying facts related to this case are directly related to
Prairie Village's alleged violation of the responsibilities,
obligations, or duties imposed by BIPA. The Court concludes that
the Violation of Laws Applicable to Employers exclusion under the
EPL coverage bars coverage for the underlying Field lawsuit.
Because Church Mutual owes no duty to defend, it also owes no duty
to indemnify.
For these reasons, the Court grants Church Mutual's Motion for
Judgment on the Pleadings. Church Mutual owes no duty to defend or
indemnify Prairie Village in connection with the underlying
lawsuit. The Defendants' Counterclaims are also dismissed. Civil
case terminated.
A full-text copy of the Court's Memorandum Opinion dated Aug. 11,
2022, is available at https://tinyurl.com/467zhvc6 from
Leagle.com.
PREMIER NUTRITION: Court to Award Montera & Class $8.3MM in Damages
-------------------------------------------------------------------
In the case, MARY BETH MONTERA, Plaintiff v. PREMIER NUTRITION
CORPORATION, Defendant, Case No. 16-cv-06980-RS (N.D. Cal.), Judge
Richard Seeborg of the U.S. District Court for the Northern
District of California grants the Plaintiff's motion for entry of
final judgment, and concludes that the Plaintiff and the class are
entitled to $8,312,450 in statutory damages and $4,583,004.90 in
prejudgment interest.
Plaintiff Montera brought the lawsuit on behalf of New York
consumers who had purchased Joint Juice, a beverage containing
glucosamine and chondroitin that is sold by Defendant Premier
Nutrition.
The case is one of numerous certified class actions pending before
this Court alleging false advertising and other claims arising from
Premier Nutrition's promotion of Joint Juice, a line of joint
health dietary supplements. Each class action concerns a set of
plaintiffs in a different state; this action focuses on consumers
in New York. In November 2021, the Court set the case for trial on
May 23, 2022, the first of these related cases to proceed to
trial.
A recurring issue in pretrial litigation was the availability of
statutory damages for a violation of GBL Sections 349 and 350, and
how statutory damages would be imposed if the jury found for the
Plaintiff and the class. The first arose in the context of a
Daubert motion concerning the expert testimony of Colin Weir, the
Plaintiff's damages expert. The Defendant moved to exclude Weir's
testimony, arguing that his calculations of statutory damages were
irrelevant. It argued that the calculations were irrelevant because
Weir's calculations were done on a per unit basis, and it argued
that New York law only permitted statutory damages on a per person
basis. While recognizing the diverging views of courts across the
country on this question, the Court concluded that statutory
damages were available on a per unit basis.
Next, the parties disputed whether the Plaintiff had to present
evidence of actual damages, since he argued statutory damages would
be imposed automatically if liability were found. The relevant
statutes allow a plaintiff to recover the greater of actual damages
or statutory damages. They further disagreed as to whether the
imposition of statutory damages was a question that needed to be
put to the jury. The jury was also asked to determine the number of
units sold in New York during the Class Period such that statutory
damages could be calculated.
After a nine-day trial, the jury reached a verdict two and half
hours after the case was submitted to them for deliberation. The
jury determined both that Premier Nutrition engaged in deceptive
acts and practices in violation of GBL Section 349 and engaged in
deceptive or misleading advertising in violation of GBL Section
350. The jury further determined that it had sold 166,249 units of
Joint Juice in New York during the Class Period and that the
Plaintiff and the Class should be awarded $1,488,078.49 in actual
damages.
The Plaintiff now brings a motion for entry of judgment, asking the
Court to impose statutory damages in the amount of $50 per unit
sold for violations of GBL Section 349 and $500 per unit sold for
violations of GBL Section 350, as well as prejudgment interest.
Premier Nutrition argues that if statutory damages are available,
the Court should only award statutory damages in the amount of $50
per person. It also argues that under New York law, prejudgment
interest does not apply to statutory damages.
Judge Seeborg holds that the factors relevant for the consideration
of whether an award of punitive damages is unconstitutionally
excessive do not map perfectly onto the consideration of whether
the award of statutory damages here is excessive. They are,
however, a useful guide, and the award of $91,436,950 in this case
is "so severe and oppressive as to be wholly disproportionate to
the offense and obviously unreasonable, and thus violative of the
Due Process Clause. Given the mixed evidence on reprehensibility, a
more appropriate award of statutory damages is $8,312,450, which
would be the amount of statutory damages owed under GBL Section
349(h), $50 per unit sold. This award of statutory damages is
approximately 5.59 times greater than the amount of actual
damages.
The parties also dispute whether prejudgment interest is available
for statutory damages, and if so, when the interest should begin to
accrue. The Plaintiff proposes a calculation from their damages
expert, Colin Weir, using sales data. Weir calculated prejudgment
interest from the purchase date (where available), and from the end
of a reporting period if a retailer did not report sales on a daily
basis.
Considering the limited authority on this issue, Judge Seeborg
holds that the imposition of prejudgment interest for the adjusted
award of statutory damages in this case is appropriate. The next
question is when the interest starts to accrue. The Defendant
argues that interest does not accrue until the end of the class
period, citing a long list of federal securities cases. The end of
a class period in a securities case, however, is when the
"inflation of the stock price returns to zero," and thus when the
claim accrued. Here, most claims in the class accrued earlier than
the last day of the class period, because the claims accrued at the
time of purchase. Weir's methodology is appropriate in this
situation, and notably Defendant does not challenge the reliability
of his calculation other than his choice of when to begin the
calculation of prejudgment interest. Further, other courts have
approved similar calculations of prejudgment interest under Section
5001. The prejudgment interest is therefore awarded in the amount
of $4,583,004.90.
The only new argument presented in the motion to decertify is the
superiority argument. The Defendant argues that a class action is
not a superior method for resolving this dispute because of the
amount of statutory damages available when using a per transaction
calculation.
For the Plaintiff to prove her case in this trial, she had to
present significant amounts of scientific evidence and retain
numerous experts. It is unclear how an individual plaintiff would
be incentivized to undertake those costs, even if the possible
recovery was in the tens of thousands of dollars. Further, the
Defendant's concerns are lessened given that statutory damages will
only be awarded in the amount of $50 per transaction. In short, a
class action remains a superior method of adjudicating this
controversy, and the motion to decertify the class is denied.
For all the foregoing reasons, Judge Seeborg concludes that the
Plaintiff and the class are entitled to $8,312,450 in statutory
damages and $4,583,004.90 in prejudgment interest. The Defendant's
motion for judgment as a matter of law is denied. Its motion to
decertify the class is denied.
A full-text copy of the Court's Aug. 12, 2022 Order is available at
https://tinyurl.com/mr3txp68 from Leagle.com.
PRIMAL FLOWBACK: Misclassifies Flowback Operators, Sylvester Says
-----------------------------------------------------------------
BRANDON SYLVESTER, individually and on behalf of all others
similarly situated, Plaintiff v. PRIMAL FLOWBACK & RENTALS, LLC,
Defendant, Case No. 1:22-cv-00122-H (N.D. Tex., Aug. 10, 2022)
arises from the Defendant's conduct of misclassifying Plaintiff as
an independent contractor and as such paying him a flat daily rate
for his substantial regular and overtime hours in violation of the
Fair Labor Standards Act.
Plaintiff Sylvester worked for the Defendant from approximately
February to May of 2022 as flowback operator. He asserts that the
Defendant paid him and FLSA Class Members on a flat daily basis
without overtime regardless of the number of hours worked per week,
despite scheduling and requiring work well in excess of 40 hours
per week.
Primal Flowback & Rentals, LLC provides oil and gas well monitoring
services to energy companies across the U.S.[BN]
The Plaintiff is represented by:
Beatriz-Sosa Morris, Esq.
SOSA-MORRIS NEUMAN, PLLC
5612 Chaucer Drive
Houston, TX 77005
Telephone: (281) 885-8844
Facsimile: (281) 885-8813
E-mail: BSosaMorris@smnlawfirm.com
PROGRESSIVE DIRECT: Alleges Improper Insurance Business Practices
-----------------------------------------------------------------
GARY YAGHYAZARIAN, individually and on behalf of all others
similarly situated, Plaintiff v. PROGRESSIVE DIRECT INSURANCE
COMPANY, Defendant, Case No. 2:22-cv-01339 (D. Nev., Aug. 17, 2022)
is a class action on behalf of the Plaintiff and all other
similarly situated claimants in Nevada who received a payment for
the loss of a totaled vehicle from Defendant, where the Defendant
used valuation reports prepared by Mitchell International, Inc.
("Mitchell") to determine the actual cash value ("ACV") of the loss
vehicles.
The Plaintiff alleges in the complaint that through Mitchell's
valuation, Defendant systemically thumbs the scale when calculating
the ACV of claimants' loss vehicles by applying so-called
"Projected Sold Adjustments" that are: (a) arbitrary; (b) contrary
to appraisal standards and methodologies; (c) not based in fact, as
they are contrary to the used car industry's market pricing and
inventory management practices; (d) not applied by the major
competitor of Defendant's vendor Mitchell; and (e) not applied by
the Defendant and Mitchell to insureds in other states like
California and Washington.
In the event of a "total loss" to an insured vehicle, i.e., where
repair of the vehicle is impossible or uneconomical, the
Defendant's uniform insurance policies with the Plaintiff and all
putative Class members promises to pay for the loss, limited to the
ACV of the vehicle. When valuing total loss claims for vehicles, it
is improper for an automobile insurance company, such as
Progressive, to undervalue and underpay the claims by manipulating
the data used to determine the ACV of the vehicles, says the suit.
Progressive Direct Insurance Company operates as an insurance
company. The Company underwrites auto, fire, marine, and casualty
insurance. [BN]
The Plaintiff is represented by:
Gustavo Ponce, Esq.
Mona Amini, Esq.
KAZEROUNI LAW GROUP, APC
6069 South Fort Apache Road, Suite 100
Las Vegas, NV 89148
Telephone: (800) 400-6808
Facsimile: (800) 520-5523
Email: gustavo@kazlg.com
mona@kazlg.com
-and-
Andrew J. Shamis, Esq.
SHAMIS & GENTILE, P.A.
14 NE 1st Avenue, Suite 705
Miami, FL 33132
Telephone: (305) 479-2299
Email: ashamis@shamisgentile.com
-and-
Scott Edelsberg, Esq.
Christopher Gold, Esq.
EDELSBERG LAW, P.A.
20900 NE 30th Ave., Suite 417
Aventura, FL 33180
Telephone: (786) 289-9471
Facsimile: (786) 623-0915
Email: scott@edelsberglaw.com
chris@edelsberglaw.com
PROMISES BEHAVIORAL: Cody Alleges Wiretapping of Website Visitors
-----------------------------------------------------------------
ANNETTE CODY, individually and on behalf of all others similarly
situated, Plaintiff v. PROMISES BEHAVIORAL HEALTH, LLC; and DOES 1
THROUGH 25, INCLUSIVE, Defendants, Case No. 8:22-cv-01529-FWS-JDE
(C.D. Cal., Aug. 16, 2022) is an action against the Defendants for
illegal wiretapping of electronic communications through the
Defendant's website, www.recoveryranchpa.com (the "Website") in
violation of California Invasion of Privacy Act ("CIPA").
The Plaintiff alleges in the complaint that unknown to visitors to
the Website, the Defendant has secretly deployed "keystroke
monitoring" software that Defendant uses to surreptitiously
intercept, monitor, and record communications made through the chat
feature on the Website. The Defendant neither informs visitors nor
obtains their express consent prior to this wiretapping. Defendant
then shares the intercepted communications with at least one third
party, says the Plaintiff.
PROMISES BEHAVIORAL HEALTH, LLC provides addiction and mental
health treatment. [BN]
The Plaintiff is represented by:
Scott J. Ferrell, Esq.
PACIFIC TRIAL ATTORNEYS
A Professional Corporation
4100 Newport Place Drive, Ste. 800
Newport Beach, CA 92660
Telephone: (949) 706-6464
Facsimile: (949) 706-6469
Email: sferrell@pacifictrialattorneys.com
PRUSSIAN INC: Wang Seeks Minimum & OT Wages Under FLSA, NYLL
------------------------------------------------------------
ZHIHENG WANG, individually and on behalf of all others similarly
situated v. PRUSSIAN, INC. and MIKE YIN LIANG, Case No.
1:22-cv-04576 (E.D.N.Y., Aug. 3, 2022) seeks relief from all
Defendants for unlawful actions, including compensation for unpaid
minimum wages, overtime wages, spread-of-hours pay, liquidated
damages, pre-judgment and post-judgment interest, statutory damages
for wage notice and pay statement violations, and attorneys' fees
and costs, pursuant to the Fair Labor Standards Act and the New
York Labor Law.
According to the complaint, the Defendants allegedly maintained a
pattern and practice of failing to pay Plaintiff Wang and other
similarly situated non-exempt employees the minimum wage rate for
all hours worked, the overtime rate of one-and-one half times the
regular hourly rate/applicable minimum wage rate for all hours
worked in excess of forty per week and spread-of-hours pay for each
workday their shift or shifts exceeded 10 hours per day.
From December 22, 2021 to June 6, 2022, the Plaintiff Wang was
employed by Defendant Prussian. Plaintiff Wang worked for Prussian
as a remote employee working out of Brooklyn, New York.[BN]
The Plaintiff is represented by:
Robert D. Salaman, Esq.
AKIN LAW GROUP PLLC
45 Broadway, Suite 1420
New York, NY 10006
Telephone: (212) 825-1400
Facsimile: (212) 825-1440
E-mail: rob@akinlaws.com
PUBLIX SUPERMARKETS: M.D. Florida Dismisses Amara Consumer Suit
---------------------------------------------------------------
In the case, PHILIP AMARA, Plaintiff v. PUBLIX SUPERMARKETS, INC.,
Defendants, Case No. 8:22-cv-367-VMC-JSS (M.D. Fla.), Judge
Virginia M. Hernandez Covington of the U.S. District Court for the
Middle District of Florida, Tampa Division, grants Publix's Motion
to Dismiss.
Publix manufactures, labels, markets, and sells an antitussive drug
product (a cough suppressant) promoted and labeled as "non-drowsy."
According to the complaint, despite being labeled as "non-drowsy,"
the Product contains an ingredient (dextromethorphan hydrobromide
("DXM")), that Amara alleges is well known for causing drowsiness.
Amara purchased the Product, relying on its "non-drowsy" labeling.
He claims that he would not have bought the Product, or would paid
less for it, had he known it contained an ingredient that caused
drowsiness.
Based on these allegations, Amara brings the putative class action
lawsuit, alleging the following causes of action: (1) violation of
the Florida Deceptive and Unfair Trade Practices Act; (2) violation
of various other states' consumer fraud laws; (3) breach of
contract; (4) breach of express warranty; (5) breach of the implied
warranty of merchantability/fitness for a particular purpose; (6)
violation of the Magnuson Moss Warranty Act; (7) negligent
misrepresentation; (8) fraud; and (9) unjust enrichment.
Publix now seeks dismissal of all counts with prejudice. It argues
that the complaint should be dismissed for three independent
reasons. First, pursuant to Rule 12(b)(1), it argues that the
complaint should be dismissed because Amara has not sustained an
injury-in-fact and therefore lacks standing. Second, Publix
maintains that Amara's claims are expressly preempted by federal
law. Finally, it argues that Amara has failed to plead facts
demonstrating that the "non-drowsy" statement on the label is
false, deceptive, or misleading.
Mr. Amara has responded.
As to standing, Judge Covington holds that while Publix argues that
Amara needed to plead an actual price differential, it does not
point to any binding authority on this point. Thus, for standing
purposes, Amara has adequately pled a concrete economic injury in
fact. Accordingly, Publix's Motion is denied on this ground.
Judge Covington further holds that Amara has not alleged any future
harm to himself that is real and immediate and/or certainly
impending. Instead, he offers only a speculative and conjectural
statement that he intends to purchase the Product at some uncertain
future date. As Amara fails to allege any threat of imminent future
injury to himself, he lacks standing to pursue injunctive relief.
As a result, Publix's Motion is granted with respect to Amara's
requests for injunctive relief.
As to federal preemption, Judge Covington finds that the Monograph
does not require a disclosure of "drowsiness" as a side effect for
products that contain DXM. In light of the Monograph, contained
within the federal regulations, he holds that the federal
government has established requirements applicable to the Product
at issue, which guidance includes the potential drowsiness side
effects of certain antitussive medications.
Judge Covington also finds that Lawson-Ross v. Great Lakes Higher
Education Corp., 955 F.3d 908 (11th Cir. 2020). (Id.) is readily
distinguishable -- it dealt with an entirely different statute (the
Higher Education Act), which merely preempted state laws requiring
student loan servicers to make additional disclosures beyond what
the federal statute required. Because the plaintiff there sought to
attack affirmative misrepresentations made by loan servicers, the
claims fell outside of the statute's preemption language. The case
law that is more on point, dealing with the FDCA, leads to the
conclusion that Amara's state-law claims are preempted.
Moreover, the main thrust of Amara's complaint, and every count
within that complaint, is that the Product's labeling as
"non-drowsy" is false and misleading. Amara would have this Court
hold Publix liable for labeling the product "non-drowsy" when such
labeling complies with the FDA's Monograph. All of Amara's
state-law claims are preempted by the FDCA because they seek to
impose a labeling requirement that is "different from or in
addition to, or that is otherwise not identical with, a
requirement" for OTC drugs in the applicable regulations.
Judge Covington also holds that Amara brought only one claim under
federal law -- his MMWA claim. But a breach of warranty claim under
the MMWA is dependent upon a viable underlying state breach of
warranty claim. As the underlying state-law warranty claims are due
to be dismissed, the MMWA claim will be dismissed as well.
Additionally, Amara fails to meet the requirement under the MMWA
that the amount in controversy for any individual claim exceeds
$25, 15 U.S.C. Section 2310(d)(3)(A), since he claims he purchased
the product for approximately $4.99.
Finally, because federal preemption cannot be cured by amendment,
Judge Covington grants dismissal of the case with prejudice.
Accordingly, the Motion to Dismiss is granted. The Plaintiff's
claims are dismissed with prejudice.
The Clerk is directed to terminate any pending motions or deadlines
and thereafter close the case.
A full-text copy of the Court's Aug. 12, 2022 Order is available at
https://tinyurl.com/2n3892t8 from Leagle.com.
QUEST DIAGNOSTICS: Perlin Sues Over Illegal Medical Debt Collection
-------------------------------------------------------------------
JULIA PERLIN, on behalf of herself and all others similarly
situated, Plaintiff v. QUEST DIAGNOSTICS, a foreign corporation,
and CCS GLOBAL HOLDINGS, INC., a foreign corporation, Defendants,
Case No. CACE-22-011811 (Fla. Cir., 17th Judicial, Broward Cty.,
Aug. 10, 2022) is a class action for damages and other legal and
equitable remedies resulting from the Defendants' violations of the
Florida Consumer Collection Practices Act.
The case arises from the Defendants' abusive and illegal
medical-debt collection practices. The Defendants allegedly billed
Plaintiff for medical services rendered in contravention of
Florida's Workers' Compensation statute and therefore in violation
of the FCCPA, says the suit.
Quest Diagnostics is a conglomerate clinical company that provide
laboratory services to consumers across the U.S., Mexico, and
Brazil.
CCS Global Holdings is a debt collector.[BN]
The Plaintiff is represented by:
Evan M. Rosen, Esq.
LAW OFFICES OF EVAN M. ROSEN, P.A.
2719 Hollywood Boulevard, B-224
Hollywood, FL 33020
Telephone: (754) 400-5150
Facsimile: (954) 400-5260
E-mail: erosen@evanmrosen.com
- and -
J. Dennis Card, Jr. Esq.
CONSUMER LAW ORGANIZATION, P.A.
721 US Highway 1, Suite 201
North Palm Beach, FL 33408
Telephone: (561) 822-3446
Facsimile: (305) 574-0132
E-mail: dennis@cloorg.com
- and -
Jordan A. Shaw, Esq.
Kimberly A. Slaven-Hauth, Esq.
ZEBERSKY PAYNE SHAW LEWENZ, LLP
110 SE 6th Street, Suite 2900
Fort Lauderdale, FL 33301
Telephone: (954) 989-6333
Facsimile: (954) 989-7781
E-mail: jshaw@zpllp.com
kslaven@zpllp.com
QUONTIC BANK: Scheduling Order Entered in Sapan Class Action
-------------------------------------------------------------
In the class action lawsuit captioned as Paul Sapan v. Quontic
Bank, et al., Case No. 8:22-cv-00849-CJC-ADS (C.D. Cal.), the Hon.
Judge Cormac J. Carney entered a scheduling order as follows:
1. All discovery, including discovery motions, shall be
completed by December 28, 2023. Discovery motions must be
filed and heard prior to this date.
2. The parties shall have until February 26, 2024 to file and
have heard all other motions, including motions to join or
amend the pleadings.
3. A pretrial conference will be held on Monday, April 29,
2024 at 03:00 PM.
4. The case is set for a jury trial, Tuesday, May 7, 2024 at
08:30 AM.
5. The parties are referred to ADR Procedure No. 2 – Court
Mediation Panel. The parties shall have until January 11,
2024 to conduct settlement proceedings. The parties shall
file with the Court a Joint Status Report no later than
five days after the ADR proceeding is completed advising
the Court of their settlement 5 and status.
6. The Plaintiff shall have until July 31, 2023 to file and
have heard any class certification motion.
Quontic is a U.S.-based bank headquartered in Manhattan, New York
City. Quontic has additional locations in Astoria, New York;
Melville, New York; Flushing, New York; and Miami, Florida.
A copy of the Court's order dated Aug. 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3dJeOTn at no extra charge.[CC]
RAINBOW REALTY: Wins Cross-Motion for Summary Judgment in FHC Suit
------------------------------------------------------------------
In the case, FAIR HOUSING CENTER OF CENTRAL INDIANA, INC., MORY
KAMANO, NORMA TEJEDA, CORDELL SPENCER, MARIA GASPAR, and FRANKLIN
PAZ, Plaintiffs v. RAINBOW REALTY GROUP, INC., EMPIRE HOLDING
CORP., JAMES R. HOTKA, SUNSHINE TRUST, REDSKINS TRUST, SPORTING
TRUST, ALLEY CAT TRUST, SHORE WATERS DEVELOPMENT, LLC, and
SUNFLOWER TRUST, Defendants, Case No. 1:17-cv-01782-JMS-TAB (S.D.
Ind.), Judge James Magnus-Stinson of the U.S. District Court for
the Southern District of Indiana, Indianapolis Division, denies the
Plaintiffs' Motion for Partial Summary Judgment and grants the
Defendants' Cross-Motion for Summary Judgment.
The Named Plaintiffs all entered into agreements with Rainbow and
various other entities (collectively, "the Defendant Entities") to
rent to buy properties in Indianapolis, Indiana ("the RTB
Agreements"). Plaintiff Fair Housing Center of Central Indiana,
Inc. ("FHC") and the Named Plaintiffs allege that the RTB Program
was designed to entice vulnerable consumers living in predominantly
Black and Latino neighborhoods to enter into the RTB Agreements,
which represented overpriced transactions, by promising them
homeownership. They allege that most of the rent-to-buy
transactions failed within the first two years and the consumers
were evicted.
On behalf of themselves and a class consisting of all individuals
who "entered a rent-to-buy agreement with Rainbow for a residential
property since the beginning of 2009, excluding those who
successfully paid off their agreement," the Plaintiffs assert
various claims under the Equal Credit Opportunity Act, 15 U.S.C.
Section 1691, et seq., the Fair Housing Act, 42 U.S.C. Section
3601, et seq., the Truth in Lending Act, 15 U.S.C. Section 1639,
and Indiana statutes.
Rainbow is a corporation that buys, sells, and manages real estate.
When properties are purchased for the RTB Program, Defendant Hotka,
who is the principal actor in connection with all of the Defendant
entities, creates land trusts to which he deeds the newly-purchased
properties ("the Individual Land Trusts"). Each Individual Land
Trust is generally assigned one house.
Each Named Plaintiff purchased a house through the RTB Program that
Mr. Hotka had deeded to a different Individual Land Trust - Clifton
Trust owned the house that is the subject of Ms. Gaspar's RTB
Agreement; Musial Trust owned the house that is the subject of Ms.
Tejeda's RTB Agreement; Degraff Trust owned the house that is the
subject of Mr. Paz's RTB Agreement; Chief Trust owned the house
that is the subject of Mr. Kamano's RTB Agreement; and Hanway Trust
owned the house that is the subject of Mr. Spencer's RTB Agreement.
The Plaintiffs have not named Clifton Trust, Musial Trust, Degraff
Trust, Chief Trust, or Hanway Trust as Defendants.
Defendant Empire is the trustee for Defendants Sunshine Trust,
Redskins Trust, Sporting Trust, Alley Cat Trust, and Sunflower
Trust (collectively, "the Family Trusts") and for the Individual
Land Trusts, and also has a bank account which is used for holding
money when properties are bought and sold. Defendant Shore Waters
is the beneficiary of the Individual Land Trusts. Mr. Hotka's four
children are the sole members of Shore Waters. Prior to the
establishment of Shore Waters, the five Family Trusts performed the
function that Shore Waters currently performs and the Family Trusts
were beneficiaries of the Individual Land Trusts. Mr. Hotka is the
sole shareholder, final decision-maker, and holder of every
director-level position for both Rainbow and Empire.
The Plaintiffs initiated the lawsuit on May 30, 2017, and filed the
operative Third Amended Class Action Complaint on March 8, 2019.
After the Court granted summary judgment dismissing some of the
Plaintiffs' claims and ruled on their Motion for Class
Certification, remaining are: (1) individual and class claims for
violation of the ECOA, 15 U.S.C. Section 1691(a)(1); (2) individual
and class claims for disparate treatment and disparate impact under
the FHA, 42 U.S.C. Section 3604(a) and (b) and Section 3605; (3)
individual claims for violation of TILA (ability to repay), 15
U.S.C. Section 1639c(a); (4) individual and class claims for
violation of TILA (pre-loan counseling), 15 U.S.C. Section 1639(u);
(5) individual and class claims for violation of TILA (mandatory
disclosure), 15 U.S.C. Section 1639(a); (6) individual and class
claims for violation of TILA (appraisal), 15 U.S.C. Section 1639h;
and (7) individual claims for violations of various Indiana Code
provisions.
Plaintiffs Gaspar, Tejeda, and Paz move for summary judgment on
their TILA claims. The Defendants move for summary judgment on all
of the Plaintiffs' federal claims, except their FHA disparate
treatment claim.
As for their TILA claims, the Plaintiffs set forth the following:
(1) failure to comply with Section 1639c(a)'s ability-to-repay
provision on behalf of Ms. Gaspar, Ms. Tejeda, and Mr. Paz; (2)
violation of Section 1639(u)'s pre-loan counseling requirement on
behalf of Ms. Gaspar and Ms. Tejeda; (3) violation of Section
1639(a)'s mandatory disclosure requirement on behalf of Ms. Gaspar
and Ms. Tejeda; and (4) violation of Section 1639h's appraisal
requirement on behalf of Ms. Tejeda and Mr. Paz.
Judge Magnus-Stinson finds that the RTB Agreements are lease
agreements for the first two years and, consequently, TILA does not
apply to them during that time period and Ms. Tejeda's TILA claims
fail as a matter of law because her relationship with Defendants
did not last past that two-year mark. Further, he finds -- assuming
without deciding that TILA applies to the RTB Agreements after the
initial two-year period -- that Rainbow is not a "creditor" subject
to TILA and the doctrine of piercing the corporate veil does not
apply to the circumstances of the case, so the Plaintiffs lack
standing to assert their TILA claims because they have not sued the
entities who could potentially be held liable under TILA.
Accordingly, JUdge Magnus-Stinson denies the Plaintiffs' Motion for
Partial Summary Judgment and grants the Defendants' Cross-Motion
for Summary Judgment on the Plaintiffs' individual and class TILA
claims.
As for their ECOA claims, the Plaintiffs allege that the Defendants
have violated the ECOA because the Plaintiffs are "applicants" and
Defendants are "creditors" within the meaning of the ECOA, and the
Defendants' "acts, policies, and practices are intentionally
discriminatory on the basis of race, color, and/or national origin
with respect to aspects of credit transactions, and constitute
reverse redlining," and "have a disparate impact on the basis of
race, color, and/or national origin."
The Defendants move for summary judgment on this claim, but the
Plaintiffs do not. They argue in support of their Cross-Motion for
Summary Judgment that the ECOA does not apply to them because the
RTB Agreements are leases until a land contract is executed. They
point to Rainbow Realty Grp., Inc. v. Carter, 131 N.E.3d 168 (Ind.
2019), making the same arguments they make in connection with the
Plaintiffs' TILA claims, and assert that, in any event, the
Plaintiffs are not "applicants" and Defendants are not "creditors"
under the ECOA.
Similar to their TILA claims, Judge Magnus-Stinson holds that any
claims the Plaintiffs assert under the ECOA fail as a matter of law
because Rainbow is not a creditor and Plaintiffs have not named the
only entities who could potentially be considered creditors.
Rainbow is the landlord during the first two years of the RTB
Agreements, when the Agreements are residential leases, and
Rainbow's involvement in the RTB transactions ends at the
conclusion of that two-year period. Assuming without deciding that
the ECOA would apply to the RTB transactions when the two years is
up and the consumers sign Conditional Sales Contracts, the only
entities that could arguably be considered creditors are the
Individual Land Trusts as the sellers and parties to the
Conditional Sales Contracts.
As discussed, the Plaintiffs have not named the Individual Land
Trusts as the Defendants and have not met their burden of showing
that it would be appropriate for the Court to pierce the corporate
veil to somehow hold the named Defendants liable for the non-party
Individual Land Trusts' actions. Accordingly, their ECOA claims
fails as a matter of law because they have not named the parties
who have caused their alleged harm and Judge Magnus-Stinson grants
the Defendants' Cross-Motion for Summary Judgment on the
Plaintiffs' individual and class ECOA claims.
In their Cross-Motion for Summary Judgment, the Defendants argue
that the Plaintiffs' FHA claims fail as a matter of law because,
although the U.S. Supreme Court has recognized disparate impact
claims under the FHA, the racial disparity must have been created
by the defendant. They assert that "despite their over-the-top
allegations and despite all of their bluster, the Plaintiffs cannot
escape the simple, unavoidable fact that the Defendants do not
control which of their offers to purchase homes for the RTB Program
are accepted." They argue that they "make offers on all properties
that are listed for under $30,000, offer one-third of the asking
price, do little to no negotiation, and if those offers are
accepted the property is purchased. They cannot control which
offers are accepted or where."
In response, the Plaintiffs argue that the Defendants do not
address their disparate treatment claim under the FHA, but focus
only on their disparate impact claim. They contend that the
Defendants "have provided no evidence suggesting that the observed
disproportionate effect is caused by sellers in communities of
color being more likely to accept their undervalued bids as
compared to sellers in white communities."
Because the Defendants did not create the statistical disparity
upon which the Plaintiffs rely, and since the Defendants' business
goal of purchasing homes below a certain threshold is a valid,
non-discriminatory interest, Judge Magnus-Stinson grants the
Defendants' Cross-Motion for Summary Judgment on the Plaintiffs'
individual and class FHA disparate impact claims.
Finally, several motions and an objection remain pending, including
the Defendants' Preliminary Objections to Plaintiffs' Potential
Expert Testimony; the Plaintiffs' Combined Motion in Limine to
Exclude Certain Evidence From Admission at Trial; the Defendants'
Motions in Limine; and the Plaintiffs' Motion for Leave to Amend
Plaintiffs' Trial Witness List and Case-Specific Jury
Instructions.
Judge Magnus-Stinson is mindful that his Order significantly
changes the landscape of the case, and that these remaining motions
may or may not be relevant in that new landscape. Accordingly, he
denies the remaining motions and overrules the objection, without
prejudice to re-file them. If a party wishes to re-file the motions
or objection, it must do so no later than Sept. 10, 2022. Any
responses are due no later than Sept. 17, 2022. No replies are
necessary.
For the foregoing reasons, Judge Magnus-Stinson denies the
Plaintiffs' Motion for Partial Summary Judgment, and grants the
Defendants' Cross-Motion Motion for Summary Judgment, to the extent
it finds that summary judgment in favor of the Defendants is
appropriate on the Plaintiffs' individual and class TILA claims,
their individual and class ECOA claims, and their individual and
class FHA disparate impact claims. No partial final judgment will
issue.
Judge Magnus-Stinson denies the Plaintiffs' Combined Motion in
Limine to Exclude Certain Evidence From Admission at Trial; the
Defendants' Motions in Limine; and the Plaintiffs' Motion for Leave
to Amend Plaintiffs' Trial Witness List and Case-Specific Jury
Instructions, and overrules the Defendants' Preliminary Objections
to Plaintiffs' Potential Expert Testimony, without prejudice to
re-file them by Sept. 10, 2022. Any responses must be filed by
Sept. 17, 2022 and no replies are necessary.
Based on this ruling, the March 27, 2020 Opinion and Order on the
Plaintiffs' Motion for Class Certification, and the March 10, 2021
Opinion and Order on the Defendants' Motion for Partial Summary
Judgment, the following claims will proceed:
a. The Plaintiffs' individual claims for disparate treatment
under the FHA seeking declaratory, injunctive, and compensatory
relief;
b. The Plaintiffs' class claims for disparate treatment under
the FHA seeking declaratory and injunctive relief;
c. The Plaintiffs' individual claims under Ind. Code Section
32-31-8-5 for failing to deliver homes in habitable conditions
seeking declaratory, injunctive, and compensatory relief; and
d. The Plaintiffs' individual claims under Ind. Code Section
24-9-3-7(c) for declaratory, injunctive, and compensatory relief
related to:
e. Misrepresentations regarding the condition of homes in the
RTB Program;
f. The standard contract terms being confusing, contradictory,
and reviewed quickly at the time of signing the RTB Agreements so
buyers did not understand the major provisions of the RTB
Agreements; and
g. The provision regarding the rent-to-buy nature of the RTB
Agreement being deceptive.
Judge Magnus-Stinson requests that the Magistrate Judge confers
with the parties as soon as practicable regarding the resolution of
these remaining claims short of the Oct. 17, 2022 trial in the
matter.
A full-text copy of the Court's Aug. 12, 2022 Order is available at
https://tinyurl.com/yfuk982n from Leagle.com.
RAVALLI COUNTY, MT: Oral Argument on Pending Bids Set for Sept. 7
-----------------------------------------------------------------
In the class action lawsuit captioned as TERI LEA EVENSON-CHILDS,
DANIEL O'TOOLE, RICHARD CHURCHILL, and KEITH LEONARD, individually
and on behalf of all others similarly situated, v. RAVALLI COUNTY;
STEPHEN HOLTON, in his official capacity as RAVALLI COUNTY SHERIFF;
JENNIFER RAY, in her official capacity as RAVALLI COUNTY JUSTICE OF
THE PEACE; JIM BAILEY, in his official capacity as RAVALLI COUNTY
JUSTICE OF THE PEACE; HOWARD RECHT, in his official capacity as
DISTRICT JUDGE FOR THE 21ST JUDICIAL DISTRICT; and JENNIFER LINT,
in her official capacity as DISTRICT JUDGE FOR THE 21ST JUDICIAL
DISTRICT, Case No. 9:21-cv-00089-DLC-KLD (D. Mont.), the Hon. Judge
Kathleen L. DeSoto entered an order that the oral argument on all
pending motions is scheduled for September 7, 2022 at 9:00 a.m. at
the Russell Smith Courthouse, 201 E. Broadway, in Missoula.
Ravalli County is a county in the southwestern part of the U.S.
state of Montana. As of the 2020 census, the population was 44,174.
Its county seat is Hamilton. Ravalli County is part of a
north–south mountain valley bordered by the Sapphire Mountains on
the East and the Bitterroot Mountains on the West.
A copy of the Court's order dated Aug. 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3weSZkT at no extra charge.[CC]
RECKITT BENCKISER: Digiacinto Sues Over Mislabeled Cough Products
-----------------------------------------------------------------
JOSEPH DIGIACINTO, individually and on behalf of all others
similarly situated, Plaintiff v. RECKITT BENCKISER, LLC, Defendant,
Case No. 3:22-cv-04690-DMR (N.D. Cal., Aug. 16, 2022) alleges
Defendant's violation of the California Consumer Legal Remedies
("CLRA"), Unfair Competition Law ("UCL"), and False Advertising Law
("FAL").
According to the complaint the Defendant makes, distributes, sells,
and markets "Children's Delsym Cough Relief." The Defendant sells
two separate Delsym Cough Relief products: one advertised for
adults, and one advertised for children. The Delsym product
marketed for children has an image of a cartoon child and the word
"children" written on the front label of the product, while the one
marketed for adults does not contain an image of a child or the
word "children" anywhere on the label, says the suit.
These representations lead reasonable consumers to believe that the
cough relief product advertised for adults is suitable only for
adults and the cough relief product advertised for children is
suitable for children. Based on this reasonable belief, consumers
are willing to pay more for the children's product. Reasonable
consumers are willing to pay more for the Children's Delsym Cough
Relief product because they want a product that is specifically
formulated for children and is guaranteed to be safe for children
to consume. The truth, however, is that the adult's Delsym Cough
Relief product has the exact same formula and ingredients as the
Children's Delsym Cough Relief product. Defendant puts the same
cough syrup into two different products with different labels.
Consumers are being deceived and overcharged, the suit asserts.
The Plaintiff read and relied upon Defendant's advertising when
purchasing the Product and was allegedly damaged as a result.
RECKITT BENCKISER, LLC manufactures cleaning products. The Company
produces cleaners, disinfectants, and deodorizers for household
use. Reckitt Benckiser's products serve the chemical and household
products industries.
The Plaintiff is represented by:
Ronald A. Marron, Esq.
Michael T. Houchin, Esq.
Lilach Halperin, Esq.
LAW OFFICES OF RONALD A. MARRON
651 Arroyo Drive
San Diego, CA 92103
Telephone: (619) 696-9006
Facsimile: (619) 564-6665
Email: ron@consumersadvocates.com
mike@consumersadvocates.com
lilach@consumersadvocates.com
RECREONICS INC: Court Enters Consent Decree in Feliz Class Suit
---------------------------------------------------------------
Judge Valerie Caproni of the U.S. District Court for the Southern
District of New York approves the Parties' Consent Decree in the
case, ROBERTA FELIZ, Individually, and on Behalf of All Others
Similarly Situated, Plaintiff v. RECREONICS, INC., Defendant, Case
No. 1:22-CV-03979-VEC (S.D.N.Y.).
The Plaintiff filed the lawsuit, alleging that the Defendant's
website: https://Recreonics.com/ is not fully accessible to
individuals with disabilities in violation of Title III of the
Americans with Disabilities Act of 1990, and the New York City
Human Rights Law. The Defendant expressly denies that the Website
violates any federal, state or local law, including the ADA,
NYSHRL, and the NYCHRL, and any other wrongdoing or liability
whatsoever.
The Plaintiff alleges that the Defendant is a private entity that
owns and/or operates the Website which is available through the
internet to personal computers, laptops, mobile devices, tablets,
and other similar technology. She contends that its Website is a
service, privilege, or advantage of the Defendant's physical
location, thus rendering it a public accommodation subject to Title
III of the ADA. The Defendant denies that its Website is a public
accommodation or a place of public accommodation or is otherwise
subject to Title III of the ADA.
By entry into the Consent Decree, the Defendant does not admit any
wrongdoing. The Plaintiff and the Defendant agree that it is in the
Parties' best interest to resolve the Action on mutually agreeable
terms without further litigation. Accordingly, they agree to the
entry of the Consent Decree without trial or further adjudication
of any issues of fact or law raised in the Plaintiff's Complaint.
The Consent Decree resolves, settles, and compromises all issues
between the Parties in the Action. It is entered into by the
Plaintiff, individually. The Parties agree that for purposes of the
Action and the Consent Decree venue is appropriate.
The term of the Consent Decree will commence as of the Effective
Date and remain in effect for the earlier of: (1) 24 months from
the Effective Date; or (2) the date, if any, that the regulations
are adopted in the Department of Justice's anticipated proposed
regulations for websites under Title III of the ADA.
Pursuant to the terms of the Consent Decree, the Defendant:
a. will not deny persons with a disability (as defined under
the ADA), including the Plaintiff, the opportunity to participate
in and benefit from the goods, services, privileges, advantages,
and accommodations through the Website as set forth therein.
b. will use Reasonable Efforts to provide persons with a
disability (as defined under the ADA), including the Plaintiff, an
equal opportunity to participate in or benefit from the goods,
services, privileges, advantages, and accommodations provided
through the Website as set forth therein.
c. will use Reasonable Efforts to ensure that persons with a
disability (as defined under the ADA), including the Plaintiff, are
not excluded, denied services, segregated, or otherwise treated
differently because of the absence of auxiliary aids and services,
through the Website as set forth therein.
The Defendant will ensure full and equal enjoyment of the goods,
services, privileges, advantages, and accommodations provided by
and through the Website according to the following timeline and
requirements provided that the following dates will be extended in
the instance that the Department of Justice releases regulations
for websites under Title III of the ADA while the Consent Decree is
in effect and which contain compliance dates and/or deadlines
further in the future than the dates set forth therein.
The Plaintiff and the Defendant have agreed to settle all matters
relating to costs, damages, attorneys' fees, experts' fees, other
financial matters, relating to any alleged inaccessibility of the
Website through a separate agreement which is not incorporated into
the Consent Decree.
If a party believes that the other party hereto has not complied in
all material respects with any provision of the Consent Decree that
party will provide the other party with written notice of
non-compliance. Within 60 days of either Party receiving notice,
the other Party will respond in writing to the notice. Within 15
days of receipt of the response, the Parties will meet by
telephone, or in person, in an attempt to informally resolve the
issue.
If the issue remains unresolved within 30 days of the meeting
referenced, the Parties will each have an additional 30 days to
select an expert and the two experts will mutually select an
independent accessibility consultant with substantial experience in
accessible website design who will evaluate the particular item(s)
raised based on whether a person can adequately utilize the
Website.
Any notice or communication required or permitted to be given to
the Parties will be given in writing by e-mail and by overnight
express mail or United States first class mail, addressed as
follows: For Plaintiff: Edward Y. Kroub, Esq. Mizrahi Kroub LLP 200
Vesey Street, 24th Floor/Mailroom New York, New York 10281 Tel:
(212) 595-6200 EKroub@MizrahiKroub.com For Defendant: Joseph J.
DiPalma, Esq. Jackson Lewis P.C. 44 South Broadway, 14th Floor
White Plains, New York 10601 Tel: (914) 872-6920
Joseph.DiPalma@JacksonLewis.com
Judge Caproni orders that the provisions of the Consent Decree will
be binding upon the Parties. Entry of the Consent Decree is in the
public interest. Consent Decree is for settlement purposes only and
does not constitute an admission by the Defendant of any of the
allegations contained in the Complaint or any other pleading in
this lawsuit, nor does it constitute any finding of liability
against it. The Plaintiff is acting as a private attorney general
in bringing this lawsuit and enforcing the ADA. The Consent Decree
will be deemed as adjudicating, once and for all, the merits of
each and every claim, matter, and issue that was alleged, or could
have been alleged by the Plaintiff based on, or arising out of, or
in connection with, the allegations in the Complaint.
Judge Caproni approves the Consent Decree and in doing so
specifically adopts it and makes it an Order of the Court.
The Court is not retaining jurisdiction to enforce this contract.
A full-text copy of the Court's Aug. 12, 2022 Consent Decree is
available at https://tinyurl.com/ezmrbp7p from Leagle.com.
ROEHL TRANSPORT: Seeks Unpaid Wages for Truck Drivers Under FLSA
----------------------------------------------------------------
WILLIAM MILFORD, on behalf of himself and all others similarly
situated v. ROEHL TRANSPORT, INC., Case No. 2:22-cv-00879-BHL (E.D.
Wisc., Aug. 3, 2022) is a class action brought on behalf of
individuals who have worked for Roehl Transport as drivers and have
not been paid all the wages they are owed and have had unlawful
deductions taken from the wages they earned, in violation of the
federal Fair Labor Standards Act and wage and hour laws in the
state of Wisconsin.
The Plaintiff seeks recovery of all unpaid minimum wages. The
Plaintiff seeks liquidated damages, interest, costs and attorneys'
fees, and all other relief to which the class and he are entitled.
Plaintiff William Milford is an adult resident of Fond du Lac,
Wisconsin. He worked as a truck driver for Defendant from September
to October 2020.
Roehl is an American trucking company based in Marshfield,
Wisconsin. The company provides national transportation and
logistics services.[BN]
The Plaintiff is represented by:
Brook S. Lane, Esq.
Hillary Schwab, Esq.
Brook S. Lane, Esq.
FAIR WORK, P.C.
192 South Street, Suite 450
Boston, MA 02111
Telephone: (617) 607-3260
E-mail: hillary@fairworklaw.com
brook@fairworklaw.com
ROUNDY'S ILLINOIS: Prgam Seeks Overtime Pay Under FLSA, NYLL
------------------------------------------------------------
NIHRIEN PRGAM v. ROUNDY'S ILLINOIS, LLC., D/B/A MARIANO'S, Case No.
1:22-cv-04034 (N.D. Ill.,Aug. 2, 2022) is a class action brought
under the Fair Labor Standards Act and the Illinois Minimum Wage
Law.
The Defendant operates a chain of grocery stores within Illinois
and throughout the greater Chicagoland area, that sells food,
prepared food, beverages, including alcoholic beverages and other
consumer products to the general public.
According to the complaint, the Plaintiff was improperly classified
as salary exempt and denied overtime for work in excess of 40 hours
in a work week. The Plaintiff worked over 40 hours most, if not all
work weeks she worked for the Defendants and was not paid her
overtime rate of pay of one and one-half her regular rate, says the
suit.
The Defendant compensated Plaintiff on a salary basis but failed to
pay one-and one-half times the regular hourly rates of pay for all
hours worked, including hours over 40 in individual work weeks,
alleges the suit.
Mariano's is a Midwestern grocery store chain that opened its doors
in 2010. Mariano's is owned by Kroger.[BN]
The Plaintiff is represented by:
John W. Billhorn, Esq.
Samuel D. Engelson, Esq.
BILLHORN LAW FIRM
53 West Jackson Blvd., Suite 1137
Chicago, IL 60604
Telephone: (312) 853-1450
ROUNDY'S ILLINOIS: Qazi Seeks Unpaid OT Wages Under FLSA, IMWL
--------------------------------------------------------------
MARIA QAZI v. ROUNDY'S ILLINOIS, LLC., D/B/A MARIANO'S, Case No.
1:22-cv-04058 (N.D. Ill., Aug. 4, 2022) is a class action suit
brought under the Fair Labor Standards Act and the Illinois Minimum
Wage Law seeking to recover unpaid overtime wages earned on or
before the date three years prior to the filing of this action.
The Plaintiff Qazi worked for the Defendant as a PSM from November
2016 to August 2017. Throughout all times pertinent to the
Plaintiff's claims, the Defendant applied a common policy to
Plaintiff in her role as a PSM, in that the Defendant classified
Plaintiff as "salary exempt," says the suit.
The Defendant operates a chain of grocery stores within Illinois
and throughout the greater Chicagoland area, that sells food,
prepared food, beverages, including alcoholic beverages and other
consumer products to the general public.[BN]
The Plaintiff is represented by:
John W. Billhorn, Esq.
Samuel D. Engelson, Esq.
BILLHORN LAW FIRM
53 West Jackson Blvd., Suite 1137
Chicago, IL 60604
Telephone: (312) 853-1450
ROUNDY'S ILLINOIS: Underpays Store Managers, Larson Class Suit Says
-------------------------------------------------------------------
JANEL LARSON v. ROUNDY'S ILLINOIS, LLC., D/B/A MARIANO'S, Case No.
(Aug. 2, 2022) is a class action seeking from the Defendant unpaid
minimum and overtime wages and for (a) an additional statutory
interest penalty of 2% amount of the amount of such underpayments
for each month following the date such underpayments that remain
unpaid through February 18, 2019 and (b) treble the amount of the
underpayments and a statutory interest penalty in the amount of 5%
of the underpayments each month for damages incurred thereafter
under the Fair Labor Standards Act and the Illinois Minimum Wage
Law.
Plaintiff Larson worked for the Defendant as a Store Manager from
January 2017 to September 2017.
The Defendant operates a chain of grocery stores within Illinois
and throughout the greater Chicagoland area, that sells food,
prepared food, beverages, including alcoholic beverages and other
consumer products to the general public.[BN]
The Plaintiff is represented by:
John W. Billhorn, Esq.
Samuel D. Engelson, Esq.
BILLHORN LAW FIRM
53 West Jackson Blvd., Suite 1137
Chicago, IL 60604
Telephone: (312) 853-1450
ROUNDY'S ILLINOIS: Weaver Seeks Overtime Pay Under FLSA, IMWL
-------------------------------------------------------------
CARRIE R. WEAVER v. ROUNDY'S ILLINOIS, LLC., D/B/A MARIANO'S, Case
No. 1:22-cv-04033 (N.D. Ill., Aug. 2, 2022) is a class action
brought under the Fair Labor Standards Act and the Illinois Minimum
Wage Law.
According to the complaint, all Plaintiff worked in excess of her
minimum schedule because the Defendant's store managers required
Plaintiff to arrive early or stay late before or after scheduled
shifts, because Defendant's business demands required it, or for
other reasons required by the Defendant.
The Plaintiff worked or work in excess of 40 hours in a workweek
without pay for hours worked over 40 at a rate of time and one-half
her regular hourly rate of pay, pursuant to the requirements of the
federal and state statutes. The Defendant has, both in the past and
presently, willfully employed the Plaintiff without pay at a rate
of one and one-half times their rates of pay for hours worked in
excess of 40 in a workweek, says the suit.
The Defendant operates a chain of grocery stores within Illinois
and throughout the greater Chicagoland area, that sells food,
prepared food, beverages, including alcoholic beverages and other
consumer products to the general public.[BN]
The Plaintiff is represented by:
John W. Billhorn, Esq.
Samuel D. Engelson, Esq.
BILLHORN LAW FIRM
53 West Jackson Blvd., Suite 1137
Chicago, IL 60604
Telephone: (312) 853-1450
RUEY CHAI CORP: Fails to Pay Proper Wages, Olivar Suit Alleges
--------------------------------------------------------------
ESTEBAN BRAVO OLIVAR, individually and on behalf of all others
similarly situated, Plaintiff v. RUEY CHAI CORP. d/b/a THAI CHIC
BISTRO; JANPEN PHUPEERASUPONG; and JITLADA SOIPETCH, Defendants,
Case No. 2:22-cv-04864 (E.D.N.Y., Aug. 17, 2022) seeks to recover
from the Defendants unpaid wages and overtime compensation,
interest, liquidated damages, attorneys' fees, and costs under the
Fair Labor Standards Act.
Plaintiff Olivar was employed by the Defendants as kitchen staff.
RUEY CHAI CORP. owns and operates a restaurant in New York known as
Thai Chic Bistro. [BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Telephone: (718) 263-9591
SEA THAI HOSPITALITY: Fails to Pay Proper Wages, Banjong Alleges
----------------------------------------------------------------
JAKAPAN BANJONG; THAMMARAK RAKSA; SIRINART NONTHAWONG; PORNTHIWA
BOONKWANG; and TAWHID KABIR, individually and on behalf of all
others similarly situated, Plaintiffs v. SEA THAI HOSPITALITY,
INC.; and YONGYUT LIMLEART-VATE, Defendants, Case No.
1:22-cv-04849-BMC (E.D.N.Y., Aug. 17, 2022) is an action against
the Defendant for failure to pay minimum wages, overtime
compensation, and provide accurate wage statements.
Plaintiffs Banjong, Raksa, and Kabir was employed by the Defendants
as busser. Plaintiff Nonthawong was employed as food runner.
Plaintiff Boonkwang was employed as server.
SEA THAI HOSPITALITY, INC. is a restaurant in Brooklyn that serves
primarily Thai food. [BN]
The Plaintiffs are represented by:
Robert Halpern, Esq.
HALPERN LEGAL CLINIC, INC.
18 W. Gowen Avenue
Philadelphia, PA 19119
Telephone: (646) 288-4372
Email: rnh17@verizon.net
SEDGWICK CLAIMS: Gibbs Seeks to Certify FLSA Collective Action
--------------------------------------------------------------
In the class action lawsuit captioned as CONNIE GIBBS, on behalf of
herself and others similarly situated, v. SEDGWICK CLAIMS
MANAGEMENT SERVICES INC., a Foreign for Profit Corporation, Case
No. 2:21-cv-02153-SHM-cgc (W.D. Tenn,), the Plaintiff asks the
Court to enter an order granting conditional certification of a
collective action, the issuance of court-authorized notice, and for
approving conditional certification, and approving court-authorized
notice under Section 216(b) of the Fair Labor Standards Act of 1938
(FLSA).
Since the filing of the initial Complaint, in addition to Plaintiff
Gibbs, at the time of the filing of this Unopposed Motion, 122
Opt-In Plaintiffs have joined this lawsuit. The Opt-Ins included
individuals that held the title Absence Management Care Team
Representative ("ACT Rep.") The Act Rep position at times does
similar work to Disability Rep Srs., but in a different manner, the
lawsuit says.
The Plaintiff and Opt-In Plaintiffs work(ed) for Sedgwick in the
positions of "Disability Representative Senior" and/or "Absence
Management Care Team Representative." In these roles, the Plaintiff
and Opt-In Plaintiffs at times were classified as exempt from the
FLSA's requirement to pay overtime compensation, were paid a
salary, and were not paid overtime for hours worked in excess of 40
hours per week.
Sedgwick Claims provides claims and productivity management
services.
A copy of the Plaintiff's motion dated Aug. 4, 2022 is available
from PacerMonitor.com at https://bit.ly/3pvtrMC at no extra
charge.[CC]
The Plaintiff is represented by:
Mary E. Lytle, Esq.
David V. Barszcz, Esq.
LYTLE & BARSZCZ, P.A.
533 Versailles Drive, 2 nd Floor
Maitland, FL 32751
Telephone: (407) 622-6544
Facsimile: (407) 622-6545
E-mail: mlytle@lblaw.attorney
dbarszcz@lblaw.attorney
The Defendant is represented by:
Robin A. Wofford, Esq.
Lois M. Kosch, Esq.
Meryl C. Maneker, Esq.
Leticia C. Butler, Esq.
WILSON TURNER KOSMO LLP
402 West Broadway, Suite 1600
San Diego, CA 92101
Facsimile: (619) 236-9669;
E-mail: rwofford@wilsonturnerkosmo.com
lkosch@wilsonturnerkosmo.com
mmaneker@wilsonturnerkosmo.com
lbutler@wilsonturnerkosmo.com
- and -
Thomas L. Henderson, Esq.,
OGLETREE DEAKINS NASH
SMOAK & STEWART, P.C.
6410 Poplar Avenue, Suite 300
Memphis TN 38119
Facsimile: (901) 767-7411
E-mail: Thomas.henderson@ogletreedeakins.com
SERVE U BRANDS: Underpays General Workers, Gillis Suit Claims
-------------------------------------------------------------
The case, TERRIE GILLIS, on behalf of herself and others similarly
situated in the proposed FLSA Collective Action, Plaintiff v. SERVE
U BRANDS INC. d/b/a INSOMNIA COOKIES, Defendant, Case No.
1:22-cv-04830 (E.D.N.Y., August 16, 2022) is brought by the
Plaintiff to recover damages against the Defendant's willful and
intentional violations of the Fair Labor Standards Act, the New
York Labor Law, and their supporting New York State Department of
Labor Regulations.
The Plaintiff has worked as a general worker at the Defendant's
Insomnia Cookies from on or around May 19, 2021 through and
including December 31, 2022.
The Plaintiff alleges that the Defendant has maintained a policy
and practice commonly known as "time shaving" and manually input
its general workers' end times. Specifically, the Defendant's
manager would typically adjust the Plaintiff and other similarly
situated general workers' end times by 2 hours each day from August
1, 2021 through and including December 31, 2022. As a result, they
were forced to work of the clock without being compensated. Despite
working more than 40 hours per week, they were not paid overtime
compensation at the rate of one and one-half times their regular
rate of pay for all hours worked in excess of 40 per workweek, says
the Plaintiff.
The Plaintiff also claims that the Defendant failed to keep track
of its employees' time that accurately reflected their actual hours
worked, and failed to provide them with wage statements and with
notice of their rate of pay, regular pay day, and such other
information.
Serve U Brands Inc. d/b/a Insomnia Cookies owns, operates and/or
controls a cookie shop known as "Insomnia Cookies" located at 32
5th Avenue, Brooklyn, NY 11217. [BN]
The Plaintiff is represented by:
Joshua Levin-Epstein, Esq.
Jason Mizrahi, Esq.
LEVIN-EPSTEIN & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4700
New York, NY 10165
Tel: (212) 792-0046
E-mail: Joshua@levinepstein.com
SILVER HEART: Faces Baxter Suit Over Failure to Pay Overtime Wages
------------------------------------------------------------------
SAMIRAH BAXTER, individually and on behalf of all persons similarly
situated, Plaintiff v. SILVER HEART HEALTHCARE AGENCY, LLC,
Defendant, Case No. 2:22-cv-03262 (E.D. Penn., August 16, 2022) is
a class and collective action complaint brought by the Plaintiff
against the Defendant seeking all available relief pursuant to the
Fair Labor Standards Act and Pennsylvania state law.
The Plaintiff has worked for the Defendant as a home health aide
performing home care support and services in Pennsylvania from May
2018 through May 2022.
According to the complaint, the Plaintiff and other similarly
situated home health aide routinely worked more than 40 hours per
week. However, the Defendant did not pay them overtime compensation
at the rate of one and one-half times their regular rate of pay for
all hours worked in excess of 40 per workweek. Instead, they were
only paid straight time without any overtime compensation, says the
suit.
Silver Heart Healthcare Agency, LLC provides integrated healthcare
services. [BN]
The Plaintiff is represented by:
Sarah R. Schalman-Bergen, Esq.
Krysten Connon, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston St., Suite 2000
Boston, MA 02116
Tel: (267) 256-9973
E-mail: ssb@llrlaw.com
kconnon@llrlaw.com
SOUTH DAKOTA: Scheduling Order Entered in Irvine Class Suit
-----------------------------------------------------------
In the class action lawsuit captioned as JULIE IRVINE, guardian ad
litem of Juan Alvarez, Aubrey Archambeau, and Joseph Baker, as
named plaintiffs on behalf of a class; JUAN ALVAREZ, on behalf of a
class; AUBREY ARCHAMBEAU, on behalf of a class; and JOSEPH BAKER,
on behalf of a class; Plaintiffs, v. JEREMY JOHNSON, Administrator,
South Dakota Human Services Center, in his official capacity, Case
No. 4:21-cv-04224-KES (D.N.D.), the Hon. Judge Karen E. Schreier
entered an order granting motion and scheduling order as follows:
1. All prediscovery disclosures required by Rule 26(a)(1)
will be exchanged by the parties, but not filed with the
court, on or before September 5, 2022.
2. The parties will have until October 3, 2022, to move to
join additional parties and to amend the pleadings.
3. All discovery, including expert discovery, will be
commenced in time to be completed by February 6, 2023.
4. Motions to compel discovery should be filed within 14 days
after the subject matter of the motion arises.
5. There will be a maximum of 20 depositions for each party,
excluding depositions relevant to class certification, for
which there can be no more than 5, and depositions of
experts. Depositions will be limited to seven hours.
6. The identity of and reports from retained experts under
Rule 26(a)(2) will be due from plaintiff by December 5,
2022, and from defendant by January 5, 2023
The Human Services Center in Yankton, South Dakota is a psychiatric
hospital that was built in 1882.
A copy of the Court's order dated Aug. 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3c3mAa2 at no extra charge.[CC]
SPEEDWAY MOTORS: Walli Sues Over Unsolicited Text Messages
----------------------------------------------------------
ASHER WALLI, LLC Plaintiff v. SPEEDWAY MOTORS, INC., Defendant,
Case No. 155418712 (Fla. 6th Jud. Cir. Ct., August 16, 2022) brings
this complaint alleging the Defendant of violations of the Florida
Telephone Solicitation Act.
The Plaintiff alleges that the Defendant engages in an elaborate
text marketing campaign by using various approaches to attempt to
drive business to its website for online automotive parts sales.
More specifically, the Defendant maintains website inducements that
allow individuals to sign up for "order messages and/or promotional
messages" by providing both an email address and a phone number.
Consequently, after it provided its phone number when it visited
the Defendant's website during the summer of 2022, the Plaintiff
claims that its cellphone has received numerous text messages
advertisements from the Defendant without the Plaintiff's prior
express written consent to receive such text messages, says the
Plaintiff.
On behalf of itself and on behalf of all others similarly situated,
the Plaintiff seeks statutory damages, and an injunction requiring
the Defendant to cease from sending of all text message
advertisements involving an automated system for the selection or
dialing of telephone numbers. The Plaintiff also seeks a judgment
for the total amount of statutory penalties plus pre-judgment
interest and allowable costs, and other relief as may be
appropriate.
Speedway Motors, Inc. is a retailer of automotive parts. [BN]
The Plaintiff is represented by:
Joshua A. Gickman, Esq.
Shawn A. Heller, Esq.
SOCIAL JUSTICE LAW COLLECTIVE, PL
974 Howard Ave.
Dunedin, FL 34698
Tel: (202) 709-5744
Fax: (202) 893-0416
E-mail: josh@sjlawcollective.com
shawn@sjlawcollective.com
STRATEGIC DELIVERY: Court Certifies FLSA Class in Zambrano Suit
---------------------------------------------------------------
In the case, CHRISTIAN ZAMBRANO, LUZ DURANGO, MOIRA RIVEROS, and
RIGOBERTO ROMERO, on behalf of themselves and all others similarly
situated, Plaintiffs, v. STRATEGIC DELIVERY SOLUTIONS, LLC, DAVID
KRONICK, ANDREW KRONICK, and MIKE RUCCIO, Defendants, Case No. 15
Civ. 8410 (ER) (S.D.N.Y.), Judge Edgardo Ramos of the U.S. District
Court for the Southern District of New York grants Blanca Alulema
and Maria Tacoaman's motion to conditionally certify a collective
action under the Fair Labor Standards Act.
Lead Plaintiffs Zambrano, Durango, Riveros, and Romero, bring the
putative collective and class action against the Defendants,
alleging that the latter improperly classified them as independent
contractors and denied them wages in violation of the FLSA and the
New York Labor Law. Between March and April of 2016,23 other
plaintiffs opted into the litigation.
Presently, Moving Plaintiffs Alulema and Tacoaman petition the
Court to: (1) conditionally certify a collective action under the
FLSA, 29 U.S.C. Section 216(b); (2) equitably toll the statute of
limitations for the period in which the case was stayed; (3) order
disclosure of contact information of similarly situated
individuals; and (4) approve notice to be sent to those similarly
situated.
From 2010 to 2020, the Moving Plaintiffs were delivery drivers for
SDS, a company that delivers pharmaceutical products to pharmacies
and other entities in New York and New Jersey. SDS operates
facilities in Elizabeth (New Jersey), Farmingdale (New York),
Brooklyn, the Bronx, and other locations. David Kronick is an owner
and CEO of SDS; Andrew Kronick is an owner and managing partner of
SDS; and Ruccio is the COO of SDS.
The Moving Plaintiffs allege that these individual defendants
exercised sufficient control over the day-to-day operations of SDS
to qualify as their employers. According to them, the Defendants
dictated the manner with which the drivers were to handle goods,
required drivers to obtain a specific type of insurance coverage,
set drivers' delivery routes, determined the order and timing of
drivers' stops, and established per-stop compensation. They
therefore allege that the Defendants unilaterally misclassified its
delivery drivers as independent contractors.
Over the course of their time with SDS, the Moving Plaintiffs
worked out of SDS' locations in Elizabeth and Farmingdale. Their
duties involved making pharmaceutical deliveries in New Jersey and
New York. During their time at the Elizabeth facility, they claim
to have worked alongside more than 50 other delivery drivers who,
like them, delivered products throughout New Jersey and New York.
During their time at Farmingdale, they claim to have worked
alongside approximately 20 other delivery drivers who made
deliveries in New York.
The Moving Plaintiffs claim that, in general, they and the other
delivery drivers were paid on a per-stop, as opposed to hourly,
basis. They allege that they and the other delivery drivers often
worked more than 40 hours per week, but were never paid overtime
premiums for additional hours worked. Moreover, SDS regularly made
deductions from the weekly paychecks of the Moving Plaintiffs,
ranging from $75.63 to $90.75 per week, which included fees
described as "cargo waiver," "manifest," and "CMS Fee." Other
drivers making deliveries in New York and New Jersey were
purportedly subject to similar deductions. They further contend
that they and the other drivers were required to pay out-of-pocket
for the necessary expenses of doing their jobs. SDS did not
reimburse any of those expenses.
As a result of SDS' pay practices, the Moving Plaintiffs argue that
they and the other New York and New Jersey drivers routinely
received pay for overtime hours falling below the legally required
overtime rate. The Named Plaintiffs, who made deliveries in New
York's Bronx, Dutchess New York, Orange, and Westchester counties,
also assert that the same common policy of misclassification and
resulting FLSA violations affected them.
On Oct 26, 2015, the Lead Plaintiffs initiated the action, on
behalf of themselves and all others similarly situated, against the
Defendants. On Jan. 29, 2016, before any of the approximately 20
Opt-in Plaintiffs had joined, the Defendants moved to dismiss the
Complaint and compel arbitration with respect to the Lead
Plaintiffs. On Sept. 22, 2016, the Court granted their motion to
compel arbitration and stayed the case.
Approximately four years later, on Oct. 23, 2020, the Moving
Plaintiffs moved to lift the stay and amend the Complaint to add
claims under New York and New Jersey law, which the Court granted
in part and denied in part on Sept. 28, 2021. Specifically, it
found that "the existence of alleged arbitration agreements, not
yet properly before the Court, did not prevent them from amending
the Complaint and seeking to advance Litigation -- even if they
will ultimately be required to arbitrate." The Court also noted
that the "weight of the law in this Circuit holds that a collective
may be conditionally certified, and notice given, notwithstanding
that some or all of the prospective members of the collective may
have signed arbitration agreements." Between March and April of
2016, the Opt-in Plaintiffs joined the litigation.
On Oct. 8, 2021, the Moving Plaintiffs requested a pre-motion
conference to seek permission to file the instant motion for
conditional certification, which the Court granted. On Oct. 19,
2021, they filed an amended complaint. On Nov. 2, 2021, the
Defendants requested a pre-motion conference to seek leave to file
a motion to dismiss and compel arbitration against the Moving
Plaintiffs, which the latter opposed on Nov. 3, 2021, arguing that
the Court should instead permit them first to file a motion for
conditional certification and to conduct limited discovery
concerning the alleged formation of the arbitration provisions.
After a Nov. 4, 2021 telephone conference with the parties, the
Court granted the Moving Plaintiffs' request, denying the
Defendants permission to file their proposed motion, and permitting
limited discovery into the arbitration provisions.
The Moving Plaintiffs now seek conditional certification of the
action under the FLSA, pursuant to 29 U.S.C. Section 216(b) for the
following class of potential opt-in plaintiffs: "All current and
former delivery drivers (or those in comparable roles with
different titles) who worked and/or performed services for
Strategic Delivery Solutions, LLC delivering pharmaceutical
products to pharmacies and other locations in New York and/or New
Jersey between September 2013 and the present" (the "Potential
Opt-in Plaintiffs" or the "Proposed Class").
The Moving Plaintiffs also ask the Court to equitably toll the
statute of limitations for the period in which the case was stayed
(i.e., from Sept. 23, 2016 until Sept. 28, 2021) as to themselves
and as to the Potential Opt-in Plaintiffs. Lastly, they ask that
the Court approves the proposed notice.
As to the conditional certification of a FLSA collective action,
Judge Ramos finds that the Moving Plaintiffs have made the
requisite "modest factual showing" that individuals who delivered
pharmaceutical products for SDS in New York or New Jersey between
September 2013 and the present "together were victims of a common
policy or plan that violated the law." He therefore grants their
motion for conditional certification.
The Moving Plaintiffs request that the Defendants produce the
aforementioned information for Potential Opt-in Plaintiffs within
15 days of the order. Judge Ramos grants their request.
In light of this Opinion, Judge Ramos directs the parties to meet
and confer, per the Defendants' request, to resolve any outstanding
issues that the Defendants may still take with respect to the
proposed notice attached to the Moving Plaintiffs' reply brief. He
directs them to submit a mutually agreed upon notice within 30 days
of his Order, subject to the Court's approval. If the parties
cannot agree, parties should submit their separate proposal for the
Court's decision.
For the reasons set forth, Judge Ramos grants the Moving
Plaintiffs' motion to conditionally certify a collective action
under the FSLA for the Proposed Class and orders disclosure of
contact information for the Proposed Class. As stipulated, he
withholds adjudication on the Moving Plaintiffs' proposed notice,
and directs parties to submit a mutually agreed upon proposal
within 30 days. The Clerk of Court is respectfully directed to
terminate the motion at Doc. 127.
A full-text copy of the Court's Aug. 16, 2022 Opinion & Order is
available at https://tinyurl.com/ytez75v3 from Leagle.com.
TELADOC HEALTH: Faces Schutter Class Suit Over Stock Price Drop
---------------------------------------------------------------
WALTER DE SCHUTTER, individually and on behalf of all others
similarly situated v. TELADOC HEALTH, INC., JASON GOREVIC, and MALA
MURTHY, Case No. 1:22-cv-04525 (E.D.N.Y., Aug. 2, 2022) is a class
action on behalf of persons or entities who purchased or otherwise
acquired publicly traded Teladoc securities between October 28,
2021 and April 27, 2022, inclusive seeking to recover compensable
damages caused by the Defendants' violations of the federal
securities laws under the Securities Exchange Act of 1934.
Teladoc provides virtual healthcare services in the U.S. and
internationally through B2B and D2C distribution channels, serving
employers, health plans, hospitals and health systems, insurance
and financial services companies, and individual members.
The Company offers its customers various virtual products and
services addressing, among other medical issues, mental health
through its BetterHelp D2C product, and chronic conditions.
Teladoc touts itself as "the first and only company to provide a
comprehensive and integrated whole person virtual healthcare
solution that both provides and enables care for a full spectrum of
clinical conditions." Despite recent market concerns over new
entrants to the telehealth field, such Amazon and Walmart, the
Company has continued to assure investors of the Company's dominant
market position in the industry.
On October 28, 2021, the day after Teladoc held a conference call
with investors and analysts to discuss the Company's third quarter
2021 results (the "Q3 2021 Earnings Call"). On that call, Defendant
Gorevic provided preliminary FY 2022 revenue guidance of $2.6
billion, while simultaneously downplaying anticipated headwinds to
the Company's chronic care business.
On April 27, 2022, post-market, Teladoc issued a press release
announcing its Q1 2022 financial results, including revenue of
$565.4 million, which missed consensus estimates by $3.23 million,
and "net loss per share of $41.58, primarily driven by a non-cash
goodwill impairment charge of $6.6 billion or $41.11 per share."
On April 28, 2022, investor news resource Seeking Alpha published
an article entitled "Teladoc draws downgrades after 1Q revenue
miss[,]" noting that the Company's "shares have lost more than a
third of value to reach a 52-week low on Thursday after the
telehealth company missed Street forecasts for its 1Q 2022 revenue
prompting many analysts to downgrade the stock," while citing
analysts from Citi, Credit Suisse, and Wells Fargo.
On this news, the Company's stock price fell $22.48 per share, or
40%, to close at $33.51 per share on April 28, 2022, damaging
investors.
As a result of the Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the Company's
securities, Plaintiff and other Class members have suffered
significant losses and damages, says the suit.
Teladoc provides virtual healthcare services in the U.S. and
internationally through Business-to-Business (B2B) and
Direct-to-Consumer (D2C) distribution channels. The Company offers
its customers various virtual products and services addressing,
among other medical issues, mental health through its BetterHelp
D2C product, and chronic conditions. The Individual Defendants are
officers of the company.[BN]
The Plaintiff is represented by:
Phillip Kim, Esq.
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Ave., 40th Floor
New York, NY 10016
Telephone: (212) 686-1060
Facsimile: (212) 202-3827
E-mail: pkim@rosenlegal.com
lrosen@rosenlegal.com
TEXAS: 5th Circuit Affirms Dismissal of Angton v. Collier & TDCJ
----------------------------------------------------------------
In the lawsuit titled RELL ANGTON, JR., Plaintiff-Appellant v.
BRYAN COLLIER, Executive Director, Texas Department of Criminal
Justice; TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
Defendants-Appellees, Case No. 21-40428 (5th Cir.), the United
States Court of Appeals for the Fifth Circuit affirms the dismissal
of the Plaintiff-Appellant's lawsuit.
Rell Angton, Jr., former Texas prisoner # 799563, appeals the
dismissal of his 42 U.S.C. Section 1983 suit based upon immunity
under 28 U.S.C. Section 1915(e)(2)(B)(iii) and for failure to state
a claim upon which relief could be granted under Federal Rule of
Civil Procedure 12(b)(6). In that suit, he alleged that the Texas
Department of Criminal Justice (TDCJ) and Brian Collier, the TDCJ
Executive Director, exposed Angton to excessive heat in violation
of the terms of a settlement agreement from a separate class
action. The settlement agreement provided that all class members,
including Angton, be housed in air-conditioned facilities for the
remainder of their incarceration.
Angton does not challenge the district court's reasoning that the
TDCJ was entitled to Eleventh Amendment immunity against his suit
for money damages. Because Angton fails to contest or address the
district court's reasons for dismissing his claims against the TDCJ
under Section 1915(e)(2)(B)(iii), he has abandoned any argument in
that regard on appeal, the Court of Appeals opines.
Additionally, the Court of Appeals finds that Angton has not stated
a plausible claim for relief against Collier under Section 1983.
Angton did not allege any personal involvement by Collier in an act
or omission that resulted in Angton's alleged exposure to extreme
heat. Nor did Angton allege any policy implemented by Collier that
was "the moving force" behind such exposure. Moreover, Angton does
not state a facially plausible claim that Collier is liable for
violating the terms of the settlement agreement because a remedial
court order, standing alone, does not serve as a basis for section
1983 liability.
Finally, the Court of Appeals notes that Angton attempts to raise
claims of money damages against the State of Texas and civil rights
violations against various prison employees. Because he did not
raise those claims in the district court, the Court of Appeals says
it will not consider them in the first instance on appeal.
Accordingly, the judgment of the district court is affirmed. Mr.
Angton's motions for appointment of counsel are denied.
A full-text copy of the Court's Opinion dated Aug. 11, 2022, is
available at https://tinyurl.com/2wb332b3 from Leagle.com.
TRACY, CA: Vargas Files Suit in Cal. Super. Ct.
-----------------------------------------------
A class action lawsuit has been filed against City of Tracy, et al.
The case is styled as Patrick Vargas, individually, and on behalf
of others similarly situated v. City of Tracy, Randall Bradley, in
his official capacity as Fire Chief of the South San Joaquin County
Fire Authority; South an Joaquin County Fire Authority, Case No.
STK-CV-UWT-2022-0005692 (Cal. Super. Ct., San Joaquin Cty., July 8,
2022).
The case type is stated as "Unlimited Civil Wrongful Termination."
City of Tracy -- https://www.cityoftracy.org/ -- is the second most
populated city in San Joaquin County, California, United
States.[BN]
The Plaintiff is represented by:
Ardalan Raghian, Esq.
WYLIE, MCBRIDE, PLATTEN & RENNER
2025 Gateway Pl., Ste. 430
San Jose, CA 95110-3727
Phone: 408-979-2920
Email: araghian@wmprlaw.com
TROY LAND: Rivas Seeks Unpaid Wages for OT Work Under FLSA, NYLL
----------------------------------------------------------------
RONALD RIVAS and JUAN RAMIREZ on behalf of themselves and others
similarly situated v. MICHAEL GOELLER, TROY LAND DEVELOPMENT CORP.
and TROY LAND DEVELOPERS, INC., Case No. 2:22-cv-04586-ENV-ST
(E.D.N.Y., Aug. 3, 2022) seeks unpaid wages for overtime work
performed, liquidated damages, attorneys' fees, interest, and all
costs and disbursements associated with this action under the Fair
Labor Standards Act and the New York Labor Law.
According to the complaint, the Defendants had a policy and
practice of refusing to pay compensation to the Plaintiff for those
hours worked in excess of forty 40 per workweek. The Defendants has
and operated under a decision, policy and plan, and under common
policies, programs, practices, procedures, protocols, routines and
rules of willfully failing and refusing to pay the Plaintiffs and
FLSA Collective Plaintiffs at one and one half times the minimum
wage for work in excess of 40 hours per workweek, and willfully
failing to keep records required by the FLSA even though the FLSA
Collective Plaintiffs have been and are entitled to overtime, says
the suit.
Troy is a freight shipping Trucking Company.[BN]
The Plaintiff is represented by:
Marcus Monteiro, Esq.
MONTEIRO & FISHMAN LLP
91 N. Franklin Street, Suite 108
Hempstead, NY 11550
Telephone: (516) 280-4600
Facsimile: (516) 280-4530
E-mail: mmonteiro@mflawny.com
TRUMP FERRY: Faces Rodriguez Wage-and-Hour Suit in S.D.N.Y.
-----------------------------------------------------------
AILEEN RODRIGUEZ, on behalf of herself and others similarly
situated, Plaintiff v. TRUMP FERRY POINT LLC d/b/a TRUMP GOLD LINKS
AT FERRY POINT and THE WATERFRONT NYC, and JOE ROEDIGER,
Defendants, Case No. 1:22-cv-06836 (S.D.N.Y., Aug. 10, 2022) is
brought pursuant to the Fair Labor Standards Act and the New York
Labor Law seeking from Defendants unpaid regular and overtime wages
due to off the clock work, unpaid minimum wage due to invalid tip
credit, misappropriated tips, unreimbursed uniform maintenance pay,
unpaid spread-of-hours pay, statutory penalties, liquidated
damages, and attorneys' fees and costs.
The Plaintiff was employed by Defendants as a server at The
Waterfront NYC, a restaurant located on the grounds of the Trump
Golf Links at Ferry Point in Bronx, New York, from August 1, 2020,
until June 8, 2021.
Trump Ferry Point LLC operates the Trump Golf Links at Ferry Point
which includes The Waterfront NYC, an upscale seafood
restaurant.[BN]
The Plaintiff is represented by:
William Brown, Esq.
BROWN KWON & LAM LLP
521 Fifth Avenue, 17th Floor
New York, NY 10175
Telephone: (212) 295-5828
Facsimile: (718) 795-1642
E-mail: wbrown@bkllawyers.com
UBER TECHNOLOGIES: Faces Cao Suit Over Drop in Share Price
----------------------------------------------------------
DONGPING CAO, individually and on behalf of all others similarly
situated, Plaintiff v. UBER TECHNOLOGIES, INC.; DARA KHOSROWSHAHI;
and NELSON CHAI, Defendants, Case No. 3:22-cv-04688 (N.D. Cal.,
Aug. 16, 2022) is a federal securities class action on behalf of a
class consisting of all persons and entities other than Defendants
that purchased or otherwise acquired Uber common stock between May
31, 2019 and July 8, 2022, both dates inclusive (the "Class
Period"), seeking to recover damages caused by the Defendants'
violations of the federal securities laws and to pursue remedies
under the Securities Exchange Act of 1934 (the "Exchange Act").
The Plaintiff alleges in the complaint that throughout the Class
Period, the Defendants made materially false and misleading
statements regarding Uber's business, operations, and compliance
policies. Specifically, the Defendants made false and misleading
statements and failed to disclose that: (i) Uber had defective
disclosure controls and procedures; (ii) Uber concealed and
downplayed the full scope and severity of its prior misconduct,
including, inter alia, the extent to which it secretly lobbied
government officials and politicians to bypass legal and regulatory
requirements, as well as knowingly risked the safety of Uber
drivers, to fuel the Company's global growth; (iii) as a result,
Uber's present global footprint and market share is in significant
part the byproduct of previously undisclosed, unsustainable, and
illegal business practices; (iv) all the foregoing, once revealed,
was likely to negatively impact Uber's reputation, as well as
subject the Company to a heightened risk of governmental and
regulatory scrutiny and enforcement action; and (v) as a result,
the Company's public statements were materially false and
misleading at all relevant times, says the suit.
On Sunday, July 10, 2022, news reports emerged regarding a cache of
124,000 internal Uber records, dubbed the "Uber Files" by media
outlets, spanning from 2013 to 2017, that were leaked to The
Guardian and subsequently shared with the International Consortium
of Investigative Journalists ("ICIJ") and other news outlets. These
files revealed, among other things, how Uber secretly met with
various government officials and politicians to skirt laws and
regulations around the world, as well as risked Uber drivers'
safety, to advance the Company's growth, and how all the foregoing
conduct was known to, and in fact encouraged by, the Company's top
management.
On this news, Uber's stock price fell $1.15 per share, or 5.15%, to
close at $21.19 per share on July 11, 2022.
As a result of the Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the Company's common
stock, the Plaintiff and other Class members have suffered
significant losses and damages, the suit alleges.
Uber Technologies Inc provides ride hailing services. The Company
develops applications for road transportation, navigation, ride
sharing, and payment processing solutions. [BN]
The Plaintiff is represented by:
Jennifer Pafiti, Esq.
POMERANTZ LLP
1100 Glendon Avenue, 15th Floor
Los Angeles, CA 90024
Telephone: (310) 405-7190
Email: jpafiti@pomlaw.com
UNITED STATES: Hospital Wins Summary Judgment Bid on Fees & Costs
-----------------------------------------------------------------
In the case, THE NEW YORK AND PRESBYTERIAN HOSPITAL, Plaintiff v.
THE UNITED STATES, Defendant, Case No. 16-cv-00496 (Fed. Cl.),
Judge Eleni M. Roumel of the U.S. Court of Federal Claims grants
the Plaintiff's Motion for Partial Summary Judgment on Attorneys'
Fees and Costs.
The case has a lengthy litigation history, familiarity with which
is presumed. A condensed summary follows. The Hospital and its
predecessor by merger employed medical residents and fellows
(collectively, the Residents) enrolled in Accreditation Council for
Graduate Medical Education at a medical college currently known as
the Hospital's Weill Cornell Campus, N.Y. & Presbyterian Hosp. v.
United States, 152 Fed. Cl. 507, 510 (2021). In August 2013, two
groups of Residents filed class action lawsuits against the
Hospital in the United States District Court for the Southern
District of New York, alleging (i) the Hospital failed to file
refund claims with the IRS to allow the Residents to recover FICA
taxes collected and paid by the Hospital on their behalf for tax
periods before April 1, 2005; and (ii) had the Hospital filed such
refund claims for the Residents, the Residents would have received
refunds of such FICA taxes collected and paid to the Government
during the class period. "As relief, the Residents sought damages
in the amount of the FICA tax withheld by the Hospital for the
period at issue." The District Court consolidated the class actions
for pretrial purposes.
The Residents eventually entered into a settlement agreement with
the Hospital to resolve the consolidated class actions. Under the
settlement, the Hospital agreed to pay $6,632,000 to settle the
Residents' claims. The District Court approved the class action
settlement and dismissed the two consolidated cases.
Following settlement of the class actions, the Hospital filed suit
in this Court seeking indemnification from the Government for,
inter alia, the "full amount of any money paid by the Hospital
stemming from the claims and demands made in the Class Actions" and
"attorneys' fees, costs, and other expenses incurred by the
Hospital in defending against the 'claims and demands' of the
Residents for 'the amount of' FICA taxes demanded in the Class
Actions." The Government filed a motion to dismiss, and the
Honorable Nancy B. Firestone granted the Government's motion,
"holding that section 3102(b) is not a money-mandating source of
substantive law, as is required for the Court of Federal Claims to
have jurisdiction pursuant to the Tucker Act."
The Hospital appealed, and the United States Court of Appeals for
the Federal Circuit reversed. The Federal Circuit "held that
section 3102(b) was reasonably amenable to a money-mandating
reading for Tucker Act jurisdiction." Relevant to the present
Motion, in reaching its holding the Federal Circuit examined
several dictionaries published around the time of section 3102's
enactment and concluded "that indemnified means 'reimburse.'" The
Government unsuccessfully petitioned for rehearing en banc, and the
case was remanded to the Court for further proceedings.
On remand, the parties filed cross-motions for summary judgment on
the Hospital's entitlement to indemnification under Internal
Revenue Code Section 3102(b) for the Residents' claims in the
settled class action suits. After the action was transferred to the
undersigned judge, the Court granted the Hospital's motion for
summary judgment and denied the Government's cross-motion for
summary judgment. In doing so, it held "that the Residents' suit
was a suit for a FICA tax refund; therefore, the Hospital is
entitled to indemnification under section 3102(b)." The parties'
motions left for a later date resolution of how much the Government
would owe the Hospital.
On June 2, 2021, the parties filed a joint status report with this
Court indicating that they were discussing two categories of
damages under section 3102(b): (1) the amount the Hospital paid to
settle the claims asserted in the class actions; and (2) the
attorneys' fees and costs the Hospital incurred in defending the
class actions. The parties jointly expressed a belief that the
latter category of damages presented a unique question of law and
accordingly requested the opportunity to present briefing
concerning whether attorneys' fees and costs the Hospital incurred
in defending against the class actions are recoverable under
section 3102(b).
Accordingly, the Court ordered the Hospital to file a motion for
partial summary judgment "concerning whether attorneys' fees and
costs incurred in the class actions are recoverable in this
action." The Hospital timely filed its Motion for Partial Summary
Judgment, and the Court conducted oral argument on the pending
Motion.
The Hospital contends "that, as a matter of law, the Government's
obligation to indemnify the Hospital pursuant to I.R.C. section
3102(b) includes reimbursing it for attorneys' fees and costs it
incurred in defending the claims and demands asserted against it in
the class actions." The Government argues that the statute's
"unambiguous language" limits the Hospital's reimbursement to "the
FICA tax it withheld, and no more." It further argues, inter alia,
that the Hospital's interpretation is inconsistent with broad legal
principles related to payment of attorneys' fees, the Federal
Circuit's previous decision in this case, and section 7430 of the
Internal Revenue Code.
Judge Roumel agrees with the Hospital that the plain text of
section 3102(b) includes reimbursement of its attorneys' fees and
costs as part of the Government's indemnity obligation.
First, the Hospital argues that (i) the plain meaning of
"indemnified" in section 3102(b) covers attorneys' fees and costs,
and (ii) "there is a presumption that indemnification encompasses
attorneys' fees and costs" absent express language to the contrary,
which section 3102(b) lacks. The Government contends that the
statute's plain language limits the Government's indemnity
obligation "to reimbursement for the employer's payment of the FICA
tax imposed on the employee."
Judge Roumel agrees with the Hospital that the plain meaning of the
statute encompasses indemnity of both the settlement amount and the
costs and fees incurred in defending against the claims and demands
asserted in the underlying cases. Indeed, section 3102(b)
unambiguously enumerates the type of claims for which the
Government must indemnify employers, and "indemnity" was understood
to include attorneys' fees and costs when Congress enacted the
predecessor to section 3102(b).
Notwithstanding the plain and ordinary meaning of the term
"indemnify," the Government argues that interpreting section
3102(b) to include attorneys' fees and costs conflicts with several
bodies of law. The Government contends that awarding the Hospital
attorneys' fees and costs under section 3102(b) violates the
American Rule regarding attorneys' fees. It further argues that the
Hospital's interpretation of section 3102(b) conflicts with the
Internal Revenue Code's mechanism for awarding litigation costs and
with the Federal Circuit's interpretation of section 3102(b).
Finally, the Government argues that Congress would not have adopted
a statute that would permit "open-ended" liability, as it asserts
the Hospital's interpretation might permit.
The Government's concerns are misplaced, Judge Roumel holds. He
finds that the legislative history reflects that Congress sought to
place a monetary cap on the Government's indemnity obligation. A
monetary cap does not "provide an 'extraordinary showing of
contrary intentions'" that would lead this Court to conclude that
section 3102(b) excludes attorneys' fees and costs. He also finds
that indemnity obligations, such as the Government's under section
3102(b), are distinct from laws authorizing fee shifting of
"attorneys' fees qua attorneys' fees." Accordingly, section 7430
does not alter the Government's stand-alone indemnity obligation
under section 3102(b).
Moreover, the Hospital does not seek to shift fees to the
Government because the Hospital prevailed over the Government; it
merely seeks to enforce the indemnity provision to the full extent
enacted by Congress. Accordingly, the case does not implicate the
American Rule. The it is also ultimately the Court's responsibility
to ensure that the Government "renders prompt justice against
itself" where appropriate. Justice means enforcing the plain text
of Internal Revenue Code section 3102(b); the Government's
indemnity obligation includes the Hospital's attorneys' fees and
costs.
Finally, the Hospital seeks indemnity for a sum far less than the
amount of FICA taxes it withheld. It withheld from the Residents,
and paid to the Government, approximately $9.1 million. However, it
only seeks indemnification for approximately $8.3 million --
approximately $6.6 million for the settlement funds paid to the
Residents and approximately $1.7 million in attorneys' fees and
costs incurred in litigating the claims and defenses in the
consolidated class actions. Thus, as the Hospital is seeking nearly
$800,000 less than any such monetary cap that the Government
contends exists, it does not seek "more than the correct amount."
For the reasons discussed, Judge Roumel grants the Plaintiff's
Motion for Partial Summary Judgment. The parties are ordered to (1)
file a Joint Notice, attaching a proposed public version of the
Sealed Memorandum and Order, with any competition-sensitive or
otherwise protected information redacted; and (2) file within 30
days of the Sealed Memorandum and Order a Joint Status Report
indicating whether they consent to a value of judgment or, if the
parties do not reach agreement, providing a schedule for future
proceedings.
A full-text copy of the Court's Aug. 12, 2022 Memorandum & Order is
available at https://tinyurl.com/u423beus from Leagle.com.
Boris Bershteyn -- boris.bershteyn@skadden.com -- Skadden, Arps,
Slate, Meagher & Flom LLP, New York, New York for the Plaintiff.
With him on the briefs are Mollie Kornreich --
mollie.kornreich@skadden.com -- Skadden, Arps, Slate, Meagher &
Flom LLP, New York, New York; Fred T. Goldberg, Jr. --
fred.goldberg@skadden.com -- and Sylvia O. Tsakos --
sylvia.tsakos@skadden.com -- Skadden, Arps, Slate, Meagher & Flom
LLP, Washington, District of Columbia.
Matthew D. Lucey, United States Department of Justice, Tax
Division, Court of Federal Claims Section, Washington, District of
Columbia for the Defendant. With him on the briefs are David I.
Pincus, Chief, Court of Federal Claims Section; and David A.
Hubber, Deputy Assistant Attorney General, Tax Division.
UNITED STATES: Suit Seeks to Certify Health-Care Providers Class
----------------------------------------------------------------
In the class action lawsuit captioned as Susan Neese, M.D and James
Hurly, M.D., on behalf of themselves and others similarly situated,
v. Xavier Becerra, in his official capacity as Secretary of Health
and Human Services; United States of America, Case No.
2:21-cv-00163-Z (N.D. Tex.), the Plaintiffs Susan Neese and James
Hurly moves the Court to certify the following class under Rule
23(b)(2) of the federal rules of civil procedure:
"All health-care providers subject to section 1557 of the
Affordable Care Act."
Health and Human Services is an agency of the federal government
and a description of a wide range of careers within the medical and
mental health fields.
A copy of the Plaintiffs' motion to certify class dated Aug. 5,
2022 is available from PacerMonitor.com at https://bit.ly/3CsQ4c3
at no extra charge.[CC]
The Plaintiffs are represented by:
Jonathan F. Mitchell, Esq.
MITCHELL LAW PLLC
111 Congress Avenue, Suite 400
Austin, TX 78701
Telephone: (512) 686-3940
Facsimile: (512) 686-3941
E-mail: jonathan@mitchell.law
- and -
Gene P. Hamilton, Esq.
Vice-President and General Counsel
America First Legal Foundation
300 Independence Avenue SE
Washington, DC 20003
Telephone: (202) 964-3721 (phone)
E-mail: gene.hamilton@aflegal.org
The Defendants are represented by:
Jeremy S.B. Newman, Esq.
UNITED STATES DEPARTMENT OF JUSTICE
CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
1100 L Street N.W.
Washington, DC 20005
Telephone: (202) 532-3114
Facsimile: (202) 616-8460
E-mail: jeremy.s.newman@usdoj.gov
VALVE CORP: Interim Co-Lead Class Counsel Named in Antitrust Suit
-----------------------------------------------------------------
In the case, In re VALVE ANTITRUST LITIGATION, Lead Case No.
C21-0563-JCC (W.D. Wash.), Judge John C. Coughenour of the U.S.
District Court for the Western District of Washington, Seattle,
grants the Plaintiffs' unopposed motion to appoint interim co-lead
class counsel.
Following the Court's most recent order consolidating actions, the
Plaintiffs jointly move for the appointment of interim co-lead
class counsel. According to their motion, they seek to designate
Vorys, Sater, Seymour and Pease LLP to serve as an Executive
Committee, with Quinn Emanuel Urquhart & Sullivan, LLP, Constantine
Cannon LLP, Lockridge Grindal Nauen P.L.L.P. ("Lockridge"), and
Wilson Sonsini Goodrich & Rosati, P.C. ("WSGR") to serve as Co-Lead
Class Counsel. They assert this structure provides an efficient and
productive way to move the consolidated matter forward.
The Plaintiffs assert that Vorsys, Quinn Emanuel, Constantine
Cannon, Lockridge, and WSGR, collectively and individually, have
(a) spent significant time investigating and challenging
Defendant's alleged anticompetitive conduct and (b) possess the
requisite experience, legal knowledge, and resources to reach a
favorable resolution of the matter for the named Plaintiffs and the
putative class. They also contend that a co-leadership structure,
such as the one proposed here, is common for complicated putative
class actions. Moreover, they contend that the proposed structure
adequately and fairly represents all class interests.
In support, they provide evidence of the firms' experience and
credentials, along with legal citation to similar structures in
comparable actions. Absent opposition from the Defendant, and there
is none, Judge Coughnour sees no reason to doubt these
contentions.
For the foregoing reasons, the motion for appointment of interim
co-lead class counsel is granted. The leadership structure for the
class action, and for any other subsequently-filed class action
consolidated into the action, will consist of the following: Vorys
will serve as an Executive Committee, while Quinn Emanuel,
Constantine Cannon, Lockridge, and WSGR will serve as Interim
Co-Lead Class Counsel.
A full-text copy of the Court's Aug. 12, 2022 Order is available at
https://tinyurl.com/57zhwp3c from Leagle.com.
WALBRIDGE ALDINGER: Rice Seeks Unpaid Overtime Wages Under FLSA
---------------------------------------------------------------
COLIN RICE, individually and for others similarly situated v.
WALBRIDGE ALDINGER LLC, Case No. 2:22-cv-11790-DPH-JJCG (E.D.
Mich., Aug. 3, 2022) seeks to recover unpaid overtime wages and
other damages from WALLC under the Fair Labor Standards Act.
Mr. Rice brings this lawsuit individually and on behalf of all
current and former hourly workers who worked for WALLC and were
paid straight time for overtime -- that is, paid the same hourly
rate for all hours worked each week, including those over 40.
The Plaintiff and the Putative Class Members regularly worked for
the Defendant in excess of 40 hours each week. But WALLC did not
pay them overtime of at least one and one-half their regular rates
for all hours worked in excess of 40 hours per workweek. Instead of
paying overtime as required by the FLSA, WALLC improperly
classified Plaintiff and the Putative Class Members as independent
contractors ineligible for overtime, and paid them the same hourly
rate for all hours worked, including those in excess of 40 in a
workweek. This practice violates the overtime requirements of the
FLSA, the Plaintiff contends.
The Plaintiff worked for the Defendant from March 2021 until
November 2021 as an Inspector in Spring Hill, Tennessee.
WALBRIDGE ALDINGER LLC is engaged in providing construction
services and support across a variety of industries, including in
manufacturing.[BN]
The Plaintiff is represented by:
Jennifer L. McManus, Esq.
FAGAN MCMANUS, PC
25892 Woodward Avenue
Royal Oak, MI 58067-0910
Telephone: (248) 542-6300
E-mail: jmcmanus@faganlawpc.com
- and -
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Alyssa White, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
awhite@mybackwages.com
- and -
Richard J. (Rex) Burch. Esq.
BRUCKNER BURCH PLLC
11 Greenway Plaza, Suite 3025
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
WESTERN WASHINGTON: Breaches Fiduciary Duties, Johnson Suit Says
----------------------------------------------------------------
Terrance Johnson, Brent Yahraus, and Jacy Purkiss, individually and
as the representatives of a class of similarly situated persons,
and on behalf of the Carpenters of Western Washington Individual
Account Pension Plan and the Carpenters Retirement Plan of Western
Washington v. Carpenters of Western Washington Board of Trustees,
et al., Case No. 2:22-cv-01079 (W.D. Wash., Aug. 2, 2022) alleges
that the Defendants have breached their fiduciary duties with
respect to the Plans in violation of the Employee Retirement Income
Security Act of 1974 (ERISA), to the detriment of the Plans and
their participants and beneficiaries.
The Plaintiffs bring this action to remedy the Defendants' unlawful
conduct, prevent further mismanagement of the Plans, and obtain
equitable relief as provided by ERISA.
The Defendants in this case were responsible for investing the
savings of over 15,000 carpenters. These carpenters counted on the
Defendants to make prudent investments that would allow them to
retire when the time came. Instead, the Defendants put a huge chunk
of the carpenters' retirement savings into speculative investments
that were inappropriate for these participants. As a result, the
plans lost over $250 million. Now, these carpenters must work years
longer before they can retire, and live more modest lifestyles once
they belatedly retire, says the suit.
The Plaintiffs are participants in two retirement plans: the DC
Plan and Pension Plan. These are collectively bargained retirement
plans that make up the entirety of retirement benefits for union
carpenters in Washington, Idaho, Montana, and Wyoming. All union
carpenters in these states are automatically enrolled in both
Plans.
The Pension Plan is a cash balance defined benefit plan that
provides periodic payments to retired participants and includes a
variable feature not typically associated with pension plans. In
other words, like the DC Plan, the Pension Plan's investment
outcomes impact the amount of benefits participants receive. Over
21,000 union carpenters were enrolled in the Pension Plan as of the
end of 2020, including 6,300 carpenters currently receiving
benefits, 4,600 retired or separated carpenters entitled to future
benefits, 1,700 beneficiaries of 19 participants, and 8,400 active
participants.
The Defendants include Callan LLC, Gerald Auvil, Randy Boettcher,
Dee Burch, Tony Edwards, Ken , Jeff Foushee, James Gleason, Heath
Hansen, Jeff Harms, Kurt Hildebrand, Steve Hoffmann, Martin
Holberg, Dan Hutchins, Jeremiah Johnson, Eric Jones, Andrew
Ledbetter, Gayland Looney, Marlo Martinez, Jim Osborne, Anthony
Pena, Doug Peterson, Rick Poitras, Scott Schaefer, Evelyn Shapiro,
Frank Spencer, Bob Susee, Doug Tweedy, Clancy Welsh, Wilf
Wainhouse, and Does 1-20.[BN]
The Plaintiff is represented by:
Marie E. Casciari, Esq.
DEBOFSKY LAW, LTD.
111 Queen Anne Ave North, Suite 201
Seattle, WA 98109
Telephone: (206) 333-2696
E-mail: mcasciari@debofsky.com
- and -
Carl F. Engstrom, Esq.
ENGSTROM LEE MCDONOUGH THOMPSON
& THOMSON LLC
1330 Lagoon Ave, Fl 4
Minneapolis, MN 55408
Telephone: (612) 293-8488
E-mail: cengstrom@engstromlee.com
mthomson@engstromlee.com
- and -
Paul B. Derby, Esq.
Hajir Ardebili, Esq.
SKIERMONT DERBY LLP
633 West Fifth Avenue, Suite 5800
Los Angeles, CA 90071
Telephone: (213) 788-4500
E-mail: pderby@skiermontderby.com
hardebili@skiermontderby.com
WHITING-TURNER/KOKOSING: Class Cert. Denial in Vance Suit Affirmed
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In the case, ANDREW VANCE, Appellant v. WHITING-TURNER/KOKOSING
JOINT VENTURE, Appellee, Case No. 2021-CA-1394-ME (Ky. App.), the
Court of Appeals of Kentucky affirms the Boone Circuit Court's
order, entered Nov. 24, 2021, denying Vance's motion for class
certification.
Appellee Whiting-Turner/Kokosing Joint Venture ("WTK"), is the
general contractor overseeing the construction of a new Amazon
Distribution Center in Boone County, Kentucky. As part of the
construction process, dynamite blasting commenced in August 2019
and lasted for approximately two years. In May 2020, Vance, a
residential homeowner who lives near the construction site, filed a
petition seeking damages based on allegations that the blasting,
which was conducted under WTK's supervision, constituted a
temporary nuisance. The petition was later amended to include a
claim for permanent diminution in value, also known as stigma
damages.
Thereafter, Vance moved to certify a proposed class consisting of
all residential property owners within a one-mile radius of the
construction project who acquired their property on or before Aug.
14, 2019. In support, he included 22 disclosures from residents
living in or near the proposed class boundaries detailing their
experiences of the blasting and the ascribed damages, emails from
various individuals discussing complaints from local businesses and
residents and WTK's responses thereto, and a declaration from a
licensed realtor who opined that the blasting has created
reputational damage to the class members' properties resulting in a
10-15% reduction in fair market value. After arguments and
extensive briefing, the circuit court denied certification, and the
interlocutory appeal followed.
Mr. Vance asserts the court misinterpreted the requirements for
proving stigma damages.
First, regarding the cost of repairs, Vance argues the Court of
Appeals held, in Mountain Water District v. Smith, 314 S.W.3d 312
(Ky. App. 2010), that Kentucky law does not require a claimant to
establish the cost of repair when diminution in value is the only
damage sought. Accordingly, he opines that the court erred in
denying certification based on the erroneous conclusion such
evidence was necessary.
The Court of Appeals disagrees with Vance's reading of Smith. The
case does not hold that cost of repair evidence is never required
in diminution actions but, rather, the Smith Court held as an
exception to the general rule that such evidence was not necessary
when the claimants expressly plead irreparable injury and present
evidence to that effect. Since Vance has not made a similar claim
or presentation of evidence, the exception is not applicable.
Clearly, the cost of repair is necessary evidence for a claim for
stigma damages; therefore, the Court of Appeals disagrees that the
court erred in considering the need for individualized evidence on
the issue.
The Court of Appeal's review is not complete however, as the need
for individual damages determinations does not wholly bar class
certification. It is, nevertheless, an important factor to its
ultimate determination of whether common issues and facts
predominate. It turns now to Vance's remaining argument.
As to proof of an actual injury, Vance concedes it is an essential
element for stigma damages and seemingly acknowledges that claims
based on physical harm to the property would require evidence on a
property-by-property basis. Nevertheless, he maintains that the
court erred in finding that individualized proof would be required
where he has presented ample evidence that the class as a whole was
deprived the use and enjoyment of their property.
The Court of Appeals again disagrees. It says, while Vance is
correct that the unreasonable interference of an owner's use and
enjoyment of a property can satisfy the requirement of an actual
injury, the nature of the injury does not impact the burden of
proof.
The interplay between the proof necessary to establish an actual
injury and the preponderance requirement for class certification
was considered. The Court of Appeals cannot say the court erred by
denying certification. The blasting occurred in different locations
over a two-year period, and Vance has cited multiple types of
injuries -- excessive vibrations, loud noises, personal items
moving or falling, cracks in surfaces, sinking foundations,
separation of porches, dust, and family pets being disturbed. The
complete lack of uniformity regarding causation and injury
underscores the glaring need for individualized proof in this
matter which extends beyond the issue of determining damages.
Accordingly, the Court of Appeals concludes that Vance has failed
to satisfy the predominance requirement of CR 23.02(c) and, thus,
the court did not abuse its discretion in denying the proposed
class certification. Therefore, the order of the Boone Circuit
Court is affirmed. All concur.
A full-text copy of the Court's Aug. 12, 2022 Opinion is available
at https://tinyurl.com/mr3hectt from Leagle.com.
Ronald R. Parry -- rrparry@strausstroy.com -- Cincinnati, Ohio,
Philip Taliaferro, III, Erlanger, Kentucky, Alexander F. Edmondson
-- aedmondson@edmondsonlaw.com -- Covington, Kentucky, Christopher
Wiest -- chris@cwiestlaw.com -- Crestview Hills, Kentucky, BRIEFS
FOR THE APPELLANT.
Edward H. Stopher -- estopher@bsg-law.com -- Earl L. Martin III --
emartin@bsg-law.com -- Louisville, Kentucky, BRIEF FOR THE
APPELLEE.
*********
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