/raid1/www/Hosts/bankrupt/CAR_Public/220909.mbx
C L A S S A C T I O N R E P O R T E R
Friday, September 9, 2022, Vol. 24, No. 175
Headlines
2145 RICARDO LLC: Fails to Pay Proper Wages, Flores Suit Alleges
3M COMPANY: Walsh Suit Alleges Complications From AFFF Products
ABENGOA S.A.: Court Dismisses Francisco's Amended Securities Suit
BEE SWEET: E.D. California Denies Bid to Dismiss Amaro Labor Suit
BITMAIN TECHNOLOGIES: Court Denies Bid to Dismiss Gevorkyan Suit
BUMP HEALTH: Laboy Files Suit Over Unsolicited Telephone Calls
CPI AEROSTRUCTURES: Final Hearing on Rodriguez Suit Deal Today
CUYAHOGA COUNTY, OH: Underpays Correction Officers, Palmer Says
DIME OPTICS: Brito Sues Over Unsolicited Telephonic Sales Calls
DINGDONG LTD: McCormack Suit Alleges 89% Drop of Stock Price
ELIGO ENERGY: Faces Aley Suit Over Unsolicited Telemarketing Calls
FANATICS LLC: Cavanaugh UCL Suit Removed to E.D. California
FINSERV HOLDINGS: Misleads Stockholders to OK Merger, Saunders Says
GENIUS BRANDS: 9th Cir. Appeal Filed Over Securities Suit Dismissal
GKN NORTH AMERICA: Loses Bid to Dismiss Parker's Amended ERISA Suit
GLENN MEDICAL: Underpays Vocational Nurses, Reimer Suit Claims
GRAY TELEVISION: Discloses Personal Info Without Consent, Suit Says
GREENBRIER INTERNATIONAL: Hunt Alleges Deceptive Adhesive Patches
HARRIS UNITED: Nelson Seeks to Recover Unpaid Overtime Under FLSA
HSN INC: Smith's Bid to Remand Consumer Suit to State Court Denied
JOHNSON & JOHNSON: Pain Reliever Contains Heavy Metals, Suit Says
KIA AMERICA: Vehicles Lack Engine Immobilizers, Johnson Suit Claims
KINGS FINEST: Fails to Pay Proper Wages, Fernandez Suit Alleges
KONINKLIJKE PHILIPS: Faces Class Suit Over Defective CPAP Devices
KROGER CO: Rosales Wage-and-Hour Suit Removed to C.D. California
MOHAWK INDUSTRIES: Court Allows Cruz to File 1st Amended Class Suit
MOXIELASH INC: Faces Laboy Suit Over Unsolicited Telephone Calls
MPZ HOLDINGS: Fails to Pay Proper Wages, Aycock Suit Alleges
NEW SCHOOL: Court Dismisses Aubrey Class Suit Without Prejudice
OKTA INC: Labaton Named Lead Counsel in Miami Securities Class Suit
OLIN CORP: Court Narrows Indirect Purchasers' Claims in Miami Suit
ONETOUCHPOINT INC: Fails to Secure Customers' Info, Hays Claims
PINDROP SECURITY: Sued Over Unlawful Recording of Voice Prints
PRINCE LIONHEART: Velazquez Files ADA Suit in S.D. New York
RALEY'S: Dempsey Wage-and-Hour Suit Removed to E.D. California
RUI MGMT: Watterson's Bid for Conditional Certification Granted
RUNWAY TOWING: Fails to Pay Proper Wages, Bavaro Suit Alleges
SANTA MONICA: Unlawfully Records Cellular Communications, Suit Says
SEATIDE FISH: Mendoza Sues Over Delivery Workers' Unpaid OT
SEVENTY SEVEN: W.D. Oklahoma Issues Final Judgment in Snider Suit
SHOPIFY INC: Bid to Stay Forsberg Suit Over Baton Completion Denied
TFORCE FREIGHT: Tappin Suit Moved From E.D. to N.D. California
THREE AMINOS: ProImmune Suit Claims Breach of Commercial Contracts
TRANSFORM SR: Has Made Unsolicited Calls, Baker Suit Alleges
TUPPERWARE BRANDS: Edge Suit Moved From S.D.N.Y. to M.D. Fla.
TYSON FOODS: Court Denies Freeman's Bid to Compel Doc Requests
UTZ QUALITY: Fails to Pay Proper Wages, Diaz Suit Alleges
VENTURE EXPRESS: Grant Sues Over Failure to Pay Wages & OT
VERISMA SYSTEMS: Wins Bid for Judgment on Pleadings in McCracken
VIBRACOUSTIC USA: Underpays Production Associates' OT, Mata Claims
VIVINT INC: Sends Unsolicited Telemarketing Calls, Rainey Alleges
W&M SERVICES: Faces Jimenez Wage-and-Hour Suit in E.D.N.Y.
WAL-MART ASSOCIATES: Gomes Labor Suit Removed to C.D. California
WALMART INC: Loses Bid to Dismiss McEnheimer's WPCL & Breach Claims
WASHINGTON: Supreme Court Clarifies Tolling Issue in Fowler Suit
XL AUTO: Quintero Sues Over Unpaid Overtime for Store Managers
Asbestos Litigation
ASBESTOS UPDATE: GMS Inc. Faces 38 Pending PI Suits as of July 31
ASBESTOS UPDATE: Judge Grants NICO's Dismissal of Legal Action
ASBESTOS UPDATE: Kroger Faces Suit Over Asbestos Handling
*********
2145 RICARDO LLC: Fails to Pay Proper Wages, Flores Suit Alleges
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ULISES ALAN RODRIGUEZ FLORES, individually and on behalf of all
others similarly situated, Plaintiff v. 2145 RICARDO LLC (d/b/a
RICARDO STEAK HOUSE); RICARDO STEAK HOUSE HEART FOUNDATION (d/b/a
RICARDO STEAK HOUSE); RICARDO LLC (d/b/a RICARDO STEAK HOUSE);
EDWARD M. MATEUS; and JAMES MATEUS a.k.a JIMMY MATEUS, Defendants,
Case No. 1:22-cv-07374 (S.D.N.Y., Aug. 29, 2022) is an action
against the Defendant for failure to pay minimum wages, overtime
compensation, provide meals, and provide accurate wage statements.
Plaintiff Rodriguez was employed by the Defendants as cook and
salad preparer.
2145 RICARDO LLC owns and operates a steakhouse restaurant, located
at New York, NY, under the name "Ricardo Steak House." [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
3M COMPANY: Walsh Suit Alleges Complications From AFFF Products
---------------------------------------------------------------
HALLIE WALSH, individually and on behalf of all others similarly
situated, Plaintiff 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, Defendants,
Case No. 2:22-cv-02837-RMG (D.S.C., August 25, 2022) is a class
action against the Defendants for negligence, strict liability,
defective design, failure to warn, fraudulent concealment, medical
monitoring trust, and violation of the Uniform Voidable
Transactions Act.
According to the complaint, the Defendants have failed to use
reasonable and appropriate care in the design, manufacture,
labeling, warning, instruction, training, selling, marketing, and
distribution of aqueous film forming foam (AFFF) products
containing synthetic, toxic per- and polyfluoroalkyl substances
collectively known as PFAS. The Defendants' AFFF products are
dangerous to human health because PFAS are highly toxic and
carcinogenic chemicals and can accumulate in the blood and body of
exposed individuals. The Defendants have also failed to warn public
entities and military members, including the Plaintiff, who they
knew would foreseeably come into contact with their AFFF products.
The Plaintiff used the Defendants' PFAS-containing AFFF products in
their intended manner, without significant change in the products'
condition due to inadequate warning about the products' danger. The
Plaintiff relied on the Defendants' instructions as to the proper
handling of the products, says the suit.
As a result of the Defendants' omissions and misconduct, the
Plaintiff was diagnosed with thyroid disease and commenced on-going
medical treatment inclusive of surgical intervention via a thyroid
resection, the suit alleges.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwall, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde Fire Fighting, Inc. is a manufacturer of fire safety products
based in Mebane, North Carolina.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
The Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
UTC Fire & Security America's Inc. is a manufacturer of security
and fire control systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Jeremy C. Shafer, Esq.
VETERAN LEGAL GROUP
700 12th Street N.W., Suite 700
Washington, DC 20005
Telephone: (888) 215-7834
E-mail: jshafer@bannerlegal.com
- and –
S. James Boumil, Esq.
BOUMIL LAW OFFICES
120 Fairmount Street
Lowell, MA, 01852
Telephone: (978) 458-0507
E-mail: sjboumil@boumil-law.com
- and –
Konstantine Kyros, Esq.
KYROS LAW
17 Miles Rd.
Hingham, MA 02043
Telephone: (800) 934-2921
E-mail: kon@kyroslaw.com
ABENGOA S.A.: Court Dismisses Francisco's Amended Securities Suit
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In the case, MICHAEL FRANCISCO, individually and on behalf of all
others similarly situated, Plaintiff v. ABENGOA, S.A., MANUEL
SANCHEZ ORTEGA, CHRISTOPHER HANSMEYER, HSBC SECURITIES (USA) INC.,
CANACCORD GENUITY INC., MERRILL LYNCH INTERNATIONAL, and SOCIETE
GENERALE, Defendants, Case No. 15 Civ. 6279 (ER) (S.D.N.Y.), Judge
Edgardo Ramos of the U.S. District Court for the Southern District
of New York dismisses the Plaintiffs' Third Amended Complaint with
prejudice.
Lead Plaintiffs Jesse and Arlette Sherman bring the federal
securities class action against Abengoa; Sanchez Ortega, Abengoa's
former CEO; Hansmeyer, the duly authorized representative for
Abengoa in the United States; and HSBC, Canaccord, Merrill, and
Societe Generale, investment banks that served as underwriters for
Abengoa's United States offering (together, the "Underwriter
Defendants"). The Plaintiffs seek remedies under Sections 11 and 15
of the Securities Act of 1933, as well as Sections 10(b) and 20(a)
of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated
thereunder. They bring their Securities Act claims on behalf of
purchasers of Abengoa's American Depositary Shares ("ADSs")
traceable to the Registration Statement issued in connection with
Abengoa's public offering on Oct. 17, 2013. They bring their
Exchange Act claims on behalf of purchasers of Abengoa's ADSs
between Oct. 17, 2013 and Aug. 3, 2015.
Abengoa, founded in 1941, is an engineering and construction
company headquartered in Spain. Sanchez Ortega served as Abengoa's
CEO from March 2010 until his resignation on May 19, 2015, and
Hansmeyer was its duly authorized representative in the United
States. This action relates to Abengoa's Oct. 17, 2013 public
offering on the NASDAQ Global Select Market for €517.5 million,
which the Underwriter Defendants underwrote, and to the subsequent
series of events culminating in the company's filing for insolvency
and bankruptcy. Lead Plaintiffs Jesse and Arlette Sherman purchased
Abengoa's ADSs beginning Nov. 18, 2014, during the Class Period.
Overall, the Plaintiffs allege that the Defendants' statements
related to the ADS offering and Abengoa's disclosures, SEC filings,
and conference calls in 2014 and 2015 were materially false and
misleading because they concealed rampant accounting fraud
including artificially increased project margins, improperly
recorded cost provisions, and active concealment of losses to
artificially inflate earnings, with the result of preventing the
market and investors from accurately assessing Abengoa's
profitability and cash flow.
As for corporate scienter, the Plaintiffs allege that Abengoa's
senior leadership facilitated and required accounting fraud as
described above regarding Benjumea's inflation of project expenses
and "triangulation" scheme, the sanctions against Deloitte, the
transferring of expenses between projects, inflated project
margins, and corporate bonus incentives. They allege that the
intent of employees is imputed to Abengoa under the doctrine of
respondeat superior and common law agency principles. They further
allege that the timing of Sanchez Ortega's resignation bolsters an
inference of scienter.
Before the Court are motions to dismiss the TAC brought by Abengoa,
Sanchez Ortega, and the Underwriter Defendants.
Before the Court are motions to dismiss the TAC in its entirety.
Abengoa, Sanchez Ortega, and the Underwriter Defendants move to
dismiss claims brought against them pursuant to Section 11 of the
Securities Act; Abengoa moves to dismiss claims brought against it
pursuant to Sections 10(b) and 20(a) of the Exchange Act and Rule
10b-5; and Sanchez Ortega moves to dismiss claims brought against
him pursuant to Section 15 of the Securities Act. All the
Defendants join and incorporate the others' motions to the extent
applicable. The Defendants also urge that any dismissal should be
with prejudice.
The Court dismissed the SAC on Aug. 21, 2020, Doc. 139. In sum, it
found that the SAC was deficient for the following reasons: (1) the
Section 11 claims were time-barred; (2) the SAC failed to state a
Securities Act claim because the allegations did not identify any
false financial statement, describe how or why such statements were
untrue, identify affected projects, or provide allegations based on
personal knowledge; (3) the Plaintiffs lacked standing to pursue
the Exchange Act claims regarding debt mischaracterization due to
the timing of their ADS purchases and lack of causation; and (4)
the SAC failed to state a claim for Exchange Act violations
regarding Abengoa's cash flow and liquidity due to lack of
allegations based on personal knowledge, failure to meet the
pleading standard for fraud, failure to plead falsity, protection
of forward-looking statements and puffery, and failure to allege
scienter.
On Sept. 10, 2020, the Court granted leave to amend the complaint
and file a TAC after finding there was no undue delay, bad faith,
or undue prejudice. The Plaintiffs filed the TAC on Sept. 17, 2021.
In the TAC, the Plaintiffs add allegations from four additional
confidential witnesses who allege that Abengoa was participating in
widespread accounting fraud across several projects and
subsidiaries.
First, in the TAC, the Plaintiffs bring claims against Abengoa,
Sanchez Ortega, the Underwriter Defendants, and Hansmeyer pursuant
to Section 11 of the Securities Act. "Section 11 of the Securities
Act prohibits materially misleading statements or omissions in
registration statements filed with the SEC." The Underwriter
Defendants and Sanchez Ortega argue that the claims should be
dismissed as time barred. They further argue that the claims as to
Merrill Lynch International should be dismissed for improper
service. Sanchez Ortega and Abengoa argue that the claims should be
dismissed for failure to state a claim.
Judge Ramos holds that (i) the filing of the FAC on Aug. 2, 2016
fell within the time limits; (ii) the claims are neither new nor
time-barred per the Court's prior opinion, as the Court has not
previously made an explicit ruling regarding their timeliness;
(iii) the claims are barred by the one-year statute of limitations;
and (iv) because the November 2014 disclosures "should have alerted
any reasonable investor that something is seriously wrong," the
Section 11 claims against the Underwriter defendants are
time-barred by the one-year statute of limitations.
Judge Ramos further finds no reason to impose such a requirement
that goes beyond the plain language of Rule 4(f)(2)(a) and thus
finds that service is proper under Rule 4(f)(2)(a). Accordingly,
the Underwriter Defendants' motion to dismiss as to MLI on the
basis of improper service is denied.
Lastly, Judge Ramos finds that (i) the statement regarding usage of
the percentage of completion method remains actionable, but will be
dismissed for failure to state a claim; (ii) the allegations from
the confidential witnesses as a whole should largely be disregarded
absent other corroborating allegations under Rule 9(b); and (iii)
the Plaintiffs have still not sufficiently "set forth the reasons
or factual basis for their belief that the statement is misleading,
so the Section 11 claims are dismissed.
Next, in the TAC, the Plaintiffs bring claims against Sanchez
Ortega and Hansmeyer pursuant to Section 15 of the Securities Act.
Section 15 creates liability for individuals or entities that
'control any person liable' under section 11 or 12. Sanchez Ortega
argues that because the Plaintiffs' Section 11 claims fail, the
Section 15 claims also fail. As discussed, the Section 11 claims
are barred by the statute of limitations and dismissed for failure
to state a claim. Accordingly, the Section 15 claims are dismissed
as well.
Finally, as to Section 10(b) and Rule 10b-5, the Plaintiffs have
not stated a claim as to the statements concerning strict financial
discipline and percentage of completion accounting. However, the
TAC alleges Exchange Act claims regarding additional statements,
including Abengoa's press releases, conference calls, and
presentations announcing their financial results including their
EBITDA and corporate leverage ratios in 2013 as well as their goals
for 2014, Abengoa's press releases, conference calls, and
presentations announcing their financial results for 2014 and goals
for 2015, and Abengoa's press releases, conference calls, and
presentations announcing their financial results for 2015 and goals
for 2016. Abengoa argues that these claims should be dismissed for
several reasons.
Judge Ramos opines that (i) to the extent these statements refer to
Abengoa's future plans and objectives, these are non-actionable
under the PSLRA's safe harbor provision; (ii) the Plaintiffs have
not sufficiently alleged the underlying accounting fraud; (iii) the
Plaintiffs have not sufficiently alleged the existence of an
accounting fraud scheme; (iv) the allegations regarding Abengoa's
bonuses come from the confidential witnesses, the testimony of whom
the Court has discounted; (v) the Plaintiffs' allegations do not
come close to showing the required level of "highly unreasonable"
conduct that is "an extreme departure from the standards of
ordinary care; and (vi) the Plaintiffs' failure to adequately plead
either scienter or a misstatement or omission is dispositive.
Because the Plaintiffs have already had a chance to amend in
response to the Court's opinion dismissing the SAC, dismissal is
with prejudice.
For the foregoing reasons, Judge Ramos grants the Defendants'
motions to dismiss. The Clerk of Court is respectfully directed to
terminate the motions, and to close the case.
A full-text copy of the Court's Aug. 30, 2022 Opinion & Order is
available at https://tinyurl.com/4y4ueysm from Leagle.com.
BEE SWEET: E.D. California Denies Bid to Dismiss Amaro Labor Suit
-----------------------------------------------------------------
In the lawsuit captioned RAFAEL MARQUEZ AMARO; JAVIER BARRERA, on
behalf of themselves and others similarly situated, Plaintiff v.
BEE SWEET CITRUS, INC.; and DOES 1 through 10, inclusive,
Defendants, Case No. 1:21-cv-00382-JLT-HBK (E.D. Cal.), Chief
Magistrate Judge Jennifer L. Thurston of the U.S. District Court
for the Eastern District of California:
(1) denies Bee Sweet Citrus, Inc.'s motion to dismiss the
complaint under Federal Rule of Civil Procedure 12(b)(6)
or 12(f), or in the alternative motion for summary
judgment under Rule 56(a), as duplicative of the related
case Montes v. Bee Sweet Citrus, Inc.,
1:20-cv-01162-JLT-EPG; and
(2) denies as moot Bee Sweet's unopposed motion to
consolidate.
Named Plaintiffs Rafael Marquez Amaro and Javier Barrera initiated
the action on March 3, 2021, on behalf of themselves and other
similarly situated employees. The Plaintiffs are farm workers, who
picked citrus fruit for Bee Sweet. Their complaint contains eight
claims arise from alleged federal and state labor code violations
that occurred during their employment.
Prior to filing the complaint in the action, the counsel for the
Plaintiffs initiated a similar action against Bee Sweet, asserting
nearly identical claims, except that, in this case, the Plaintiffs
included an additional claim under PAGA (California Labor Code
Section 2699, et seq.) (Montes v. Bee Sweet Citrus, Inc.,
1:20-cv-01162-JLT-EPG (E.D. Cal. Aug. 18, 2020).
In Montes, which is also assigned to Judge Thurston, the plaintiffs
brought claims on behalf of a similarly defined proposed class as
the class described in Amaro. In both actions, liability against
Bee Sweet is premised entirely under Labor Code Section 2810.3,
which provides joint and several liability for "client employers"
who hire employees through independent contractors, also known as
labor contractors.
On Oct. 14, 2020, in the Montes action, Bee Sweet filed a motion
for judgment on the pleadings arguing the plaintiff's claims should
be dismissed with prejudice because the plaintiffs failed to comply
with the notice requirement of Labor Code Section 2810.3.
After the parties filed several additional motions seeking
dismissal of the Montes action, the Plaintiffs initiated the
instant Amaro case and pled compliance with the notice requirement
under Section 2810.3. On April 2, 2021, Bee Sweet filed the instant
motion to dismiss the Amaro case as duplicative of the Montes case.
Bee Sweet later filed a motion to consolidate Amaro with the Montes
case. The Plaintiffs oppose the motion to dismiss but did not
oppose the motion to consolidate.
All motions in Montes and Amaro have been fully briefed and were
ripe for decision as of late October 2021 but remained unaddressed
for some time due to the judicial resource emergency in this
district. This case was reassigned to Judge Thurston on Jan. 7,
2022. The Court has reviewed the briefings submitted by the parties
and finds the motion to dismiss and motion to consolidate should be
denied, because the Montes complaint has been dismissed with
prejudice.
Although Bee Sweet moves to dismiss under Federal Rule of Civil
Procedure 12(b)(6), 12(f), and 56(a), its basis for dismissal
depends on the first-to-file rule and whether the instant case is
duplicative of the previously filed Montes case. The first-to-file
rule allows a district court to stay proceedings or dismiss a case
if a similar case with substantially similar issues and parties was
previously filed in another district court. Though the rule is not
applied mechanically, courts typically analyze three factors:
chronology of the lawsuits, similarity of the parties, and
similarity of the issues.
Bee Sweet argues this case should be dismissed because it is
"virtually identical" to the previously filed Montes case. With
respect to the three factors of the first-to-file rule, the
chronology of the suits and similarity of the issues weigh in favor
of finding the Amaro case duplicative. The Amaro case was filed
approximately seven months after the Montes case and involves
nearly identical issues. Though the Amaro complaint includes an
additional PAGA claim, the factual basis giving rise to PAGA
penalties involves the same alleged employment violations as the
seven claims that appear identically in both cases.
In addition, the factor regarding similarity of the parties
somewhat indicates the Amaro case's duplicity of Montes, Judge
Thurston notes. The parties appear substantially similar given that
the plaintiffs in both cases assert claims against Bee Sweet as the
singular defendant. The two complaints also identify a nearly
identical class. The proposed classes of Amaro and Montes include
individuals who worked at least one shift as a harvest worker in
the four years prior to the complaint. However, a slight difference
appears in the language defining these classes.
The Montes complaint defines these individuals as "all persons who
are employed or have been employed by" Bee Sweet; whereas the Amaro
complaint defines them as "all persons who performed labor for" Bee
Sweet. The Plaintiffs argue the different definitions result in a
broader class in the Amaro case, not captured by the class
definition in Montes. Bee Sweet argues this distinction has no
material difference. The Plaintiffs argue another distinction
exists between the parties because in Montes, Bee Sweet joined an
additional party (i.e., Harvest Kings), who is not party to the
Amaro case.
Regardless of whether the parties are substantially similar such
that the first-to-file rule should apply, the Court finds the
considerations of equity do not warrant dismissing or staying this
case. When Bee Sweet filed its motion to dismiss the Amaro case, no
less than four separate motions, seeking full or partial dismissal,
remained pending in the Montes case. Judge Thurston says the risk
of dismissal in the first action strongly weighs against dismissal
in the second action because it would foreclose all opportunities
for the Plaintiffs to litigate their claims.
In addition to foreclosing the named plaintiff's claims, Judge
Thurston opines that dismissal of both Amaro and Montes would risk
excluding certain class members from recovery because their claims
may be time-barred by a later-filed suit. The risk of dismissal of
the Montes alone renders dismissal of the Amaro case inappropriate
under the first-to-file rule.
Moreover, the Montes case faces more than a mere risk of dismissal.
Because Judge Thurston is assigned to both Montes and Amaro, she
evaluated the pending motions in tandem, and concurrently has
ordered dismissing the Montes action with prejudice. Consequently,
any request to stay the action, as an alternative to dismissal,
pending an outcome in Montes is moot. Because the Court finds, in
its discretion, that neither dismissal nor a stay of the Amaro case
is warranted under the first-to-file rule, Bee Sweet's motion to
dismiss is denied.
Bee Sweet also filed a motion to consolidate the Amaro case with
the Montes case, which the Plaintiffs did not oppose. However,
dismissal of the related action renders moot the motion to
consolidate. Because the Court dismissed the complaint in the
Montes case, the motion to consolidate the instant case with Montes
is denied as moot.
A full-text copy of the Court's Order dated Aug. 18, 2022, is
available at https://tinyurl.com/546zm8ek from Leagle.com.
BITMAIN TECHNOLOGIES: Court Denies Bid to Dismiss Gevorkyan Suit
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In the case, GOR GEVORKYAN, Plaintiff v. BITMAIN TECHNOLOGIES LTD.,
Defendant, Case No. 18-cv-07004-JD (N.D. Cal.), Judge James Donato
of the U.S. District Court for the Northern District of California
denies:
(1) Bitmain's motion to dismiss; and
(2) its request under Rule 12(f) of the Federal Rules of Civil
Procedure to strike Gevorkyan's nationwide class
allegations on personal jurisdiction grounds.
The lawsuit is a consumer action brought by Gevorkyan, a California
citizen, against Bitmain, a Chinese company. Bitmain sells
cryptocurrency mining devices known as Application Specific
Integrated Circuit (ASIC) devices. Gevorkyan alleges that the ASIC
devices he bought from Bitmain were first used by Bitmain to "mine
cryptocurrency for itself" prior to delivery, and when they were
eventually delivered to him, the devices were preconfigured to
continue to "deliver Bitcoin to Bitmain rather than the customers
who purchase" the ASIC devices. He filed the putative class action
for claims under the California Unfair Competition Law, and for
unjust enrichment, conversion, and trespass to chattel.
Bitmain asked to dismiss the complaint for lack of personal
jurisdiction. After a hearing on the motion, the Court granted
Gevorkyan a period of limited jurisdictional discovery. The
discovery period was extended a number of times due to the parties'
many disputes and pandemic-related delays. Discovery has closed,
and the parties have filed two rounds of supplemental briefs on the
jurisdictional issue. Dismissal on personal jurisdiction grounds is
denied.
Before getting to the jurisdictional question, an observation about
Bitmain's briefs is required. Overall, Judge Donato says the briefs
filed by Bitmain's counsel, O'Melveny & Myers LLP, fell below the
standards of professionalism and quality expected of every litigant
and counsel in this District. The many instances of this will be
called out in the ensuing discussion, but the Court notes at the
start that it has serious concerns about O'Melveny' repeated
citations to overruled cases, and legal tests that were expressly
disapproved well before it filed its brief. These practices are not
consonant with O'Melveny's duty of candor, and they unduly burdened
the Court and opposing counsel with frivolous arguments. Bitmain
and its attorneys are advised that future conduct along these lines
will be sanctioned, including but not limited to monetary
sanctions, defense or evidence preclusion, and professional conduct
sanctions. There is no room in the busy and resource-constrained
federal courts for parties and lawyers who do not play by the rules
and fight fairly on the merits.
Personal jurisdiction may be general or specific. Gevorkyan's
supplemental briefs urge only that the Court has specific personal
jurisdiction over Bitmain. To be subject to specific personal
jurisdiction, the Defendant must have had contacts with the forum
state that "often go by the name 'purposeful availment,'" i.e., it
"must take 'some act by which it purposefully avails itself of the
privilege of conducting activities within the forum State.'" In
addition, the Plaintiff's claims "'must arise out of or relate to
the Defendant's contacts' with the forum." As always, "the exercise
of jurisdiction must comport with fair play and substantial
justice, i.e. it must be reasonable."
Initially, Bitmain's sales of ASIC devices in California go a long
way toward establishing purposeful availment. Gevorkyan has
proffered evidence that "Bitmain HK generated more than $50 million
in revenue from its sale of ASIC devices to customers in
California, including him, during the relevant time period."
Bitmain does not dispute this evidence, and acknowledges that "the
evidence shows annual California sales of Bitmain ASIC devices
(which can cost thousands of dollars each) ranging from $486,481 in
2016 to $32,657,754 in 2018." These are substantial sums, and even
if considered by number of units rather than by revenue totals, it
appears Bitmain cumulatively sold well over 66,000 units in the
relevant time period.
Judge Donato holds that this evidence establishes purposeful
availment. Gevorkyan's prima facie evidence bolsters the
demonstration of purposeful availment. Among other facts, Bitmain
hosted a YouTube channel with the description, "Beijing-based
Bitmain Technologies Ltd.'s official YouTube channel," and the
channel included a video which offered a "sneak peek into our
office in San Jose, California." The Plaintiff's submitted evidence
on its face indicates that the page is hosted by Bitmain, the
entity at issue, and it shows a San Jose office for that entity.
Bitmain's sales in this District establish personal jurisdiction,
which the Plaintiff's additional evidence underscores. Judge Donato
need not consider the other evidence offered by Gevorkyan, which is
subject to some factual disputes that are beyond the scope of the
present proceeding.
The next question is whether Gevorkyan's claims "arise out of
relate to" Bitmain's "contacts with the forum." Once again, Bitmain
got the law wrong on the applicable standard, which makes its
comment that Gevorkyan "relies on bad law," all the more
unbecoming. It repeatedly says that there is a "'but-for' test that
requires a 'direct nexus' between the defendant's forum contacts
and the plaintiff's cause of action." The circuit definitively
concluded, well over a month before Bitmain filed its brief, that
"its precedents permit but do not require a showing of but-for
causation to satisfy the nexus requirement."
Judge Donato holds that Bitmain's ASIC sales in California are
sufficient to support an assertion of jurisdiction in a consumer
action based on those sales activities. Gevorkyan's claims "relate
to" Bitmain's contacts with the forum, and there is a sufficient
"affiliation between the forum and the underlying controversy,
principally, an activity or an occurrence that takes place in the
forum State and is therefore subject to the State's regulation."
Bitmain "chose to enter the California market" and to make regular
and significant sales of its ASIC devices here, and it consequently
should have reasonably anticipated being haled into a court in this
forum to account for its in-state sales activities under
California's consumer protection laws.
For the final factor, the burden is on the Defendant "to 'present a
compelling case' that the exercise of jurisdiction would not be
reasonable." Bitmain made almost no effort to meet this standard,
making only a passing reference to an alleged arbitration agreement
with Gevorkyan that is said to require arbitration in Hong Kong.
But this is of no moment. Whether the Court has personal
jurisdiction over Bitmain, and whether the case should be
arbitrated instead of litigated, are entirely different questions.
Judge Donato denies Bitmain's motion to dismiss. He also denies its
request under Rule 12(f) to strike Gevorkyan's nationwide class
allegations on personal jurisdiction grounds. The determination of
the proper scope of any class is appropriately considered under
Rule 23, not Rule 12(f). The case is re-opened, and the Court will
issue a scheduling order.
A full-text copy of the Court's Aug. 26, 2022 Order is available at
https://tinyurl.com/yc33j9bh from Leagle.com.
BUMP HEALTH: Laboy Files Suit Over Unsolicited Telephone Calls
--------------------------------------------------------------
GIOVANNA LABOY, individually and on behalf of all others similarly
situated, Plaintiff v. BUMP HEALTH, INC., Defendant, Case No.
156131204 (Fla. 13th Jud. Cir Ct., August 25, 2022) brings this
class action complaint against the Defendant for its alleged
violations of the Florida Telephone Solicitation Act.
The Plaintiff claims that she received a telephonic sales call from
the Defendant on or after July 1, 2021. Upon information and
belief, the Defendant engages in telephonic sales calls to
consumers for the purpose of advertising its goods and services. In
addition, the Defendant's telephonic sales allegedly involved an
automated system for the selection or dialing of telephone numbers
or the playing of a recorded message when a connection is
completed. The Defendant, however, failed to secure the Plaintiff
and other similarly situated consumers' prior express written
consent to receive such automated telephonic sales calls, says the
Plaintiff.
Because of the Defendant's unsolicited telephonic sales calls, the
Plaintiff and other similarly situated individuals were aggrieved.
Thus, the Plaintiff seeks, for herself and all other similarly
situated individuals, an injunction requiring the Defendant to
cease all telephonic sales calls made without express written
consent, as well as statutory damages, reasonable attorney's fees
and court costs, and other relief as the Court deems necessary.
Bump Health, Inc. provides pregnancy subscription services. [BN]
The Plaintiff is represented by:
Benjamin W. Raslavich, Esq.
KUHN RASLAVICH, P.A.
2110 West Platt Street
Tampa, FL 33606
Tel: (813) 422-7782
Fax: (813) 422-7783
E-mail: ben@theKRfirm.com
CPI AEROSTRUCTURES: Final Hearing on Rodriguez Suit Deal Today
--------------------------------------------------------------
CPI Aerostructures Inc. disclosed in its Form-10-K Annual Report
for the fiscal year ended December 31, 2021, filed with the
Securities and Exchange Commission on August 19, 2022, that the
magistrate judge will hold a hearing today, September 9, 2022, to
decide whether to grant final approval of the settlement in the
consolidated class action lawsuit captioned Rodriguez v. CPI
Aerostructures, Inc., et al., No. 20-cv-01026.
As previously disclosed, a consolidated class action lawsuit
(captioned Rodriguez v. CPI Aerostructures, Inc., et al., No.
20-cv-01026) has been filed in the U.S. District Court for the
Eastern District of New York against the Company, Douglas
McCrosson, the Company's Chief Executive Officer, Vincent
Palazzolo, the Company's former Chief Financial Officer, and the
two underwriters of the Company's October 16, 2018 offering of
common stock, Canaccord Genuity LLC and B. Riley FBR.
The Amended Complaint in the action asserts claims on behalf of two
plaintiff classes: (i) purchasers of the Company's common stock
issued pursuant to and/or traceable to the Company's offering
conducted on or about October 16, 2018; and (ii) purchasers of the
Company’s common stock between March 22, 2018 and February 14,
2020. The Amended Complaint alleges that the defendants violated
Sections 11, 12(a)(2), and 15 of the Securities Act by negligently
permitting false and misleading statements to be included in the
registration statement and prospectus supplements issued in
connection with its October 16, 2018 securities offering. The
Amended Complaint also alleges that the defendants violated
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and Rule 10b-5 promulgated by the
SEC, by making false and misleading statements in the Company's
periodic reports filed between March 22, 2018 and February 14,
2020. Plaintiff seeks unspecified compensatory damages, including
interest; rescission or a rescissory measure of damages;
unspecified equitable or injunctive relief; and costs and expenses,
including attorney's fees and expert fees.
On February 19, 2021, the Company moved to dismiss the Amended
Complaint. Plaintiff submitted a brief in opposition to the motion
to dismiss on April 23, 2021.
On May 20, 2021, the parties reached a settlement in the amount of
$3,600,000, subject to court approval. On July 9, 2021, Plaintiff
filed an unopposed motion for preliminary approval of the
settlement. On November 10, 2021, a magistrate judge recommended
that the Court grant the motion for preliminary approval in its
entirety. The Court adopted the recommendation on May 27, 2022, and
entered an order granting preliminary approval of the settlement on
June 7, 2022.
The magistrate judge will hold a hearing on September 9, 2022 to
decide whether to grant final approval of the settlement.
The company said, "After satisfaction of our $750,000 retention,
the Settlement Amount will be covered and paid by our directors'
and officers' insurance carrier. As of March 31, 2021, we have
previously paid or accrued to our financial statements covered
expenses totaling $750,000, and have therefore met our directors'
and officers' retention requirement, which caps the Company's
expenses pertaining to the class action suit."
Founded in 1980, CPI Aerostructures, Inc. is an aviation and
aerospace firm producing structural aircraft assemblies, servicing
the commercial and military sector of the aircraft industry. The
company is based in Edgewood, New York.
CUYAHOGA COUNTY, OH: Underpays Correction Officers, Palmer Says
---------------------------------------------------------------
The case, RAYMOND PALMER, on behalf of himself and all others
similarly situated, Plaintiff v. CUYAHOGA COUNTY, Defendant, Case
No. 1:22-cv-01515 (N.D. Ohio, August 25, 2022) challenges the
Defendant's alleged willful violations of the Fair Labor Standards
Act and the Ohio's Prompt Pay Act.
The Plaintiff was employed by the Defendant as a non-exempt
Correction Officers at the Cuyahoga County Corrections Center.
The Plaintiff alleges that the Defendant failed to compensate him
and other similarly situated Correction Officers for all hours they
were suffered or permitted to work, which include the time they
spent on their required training homework. The Defendant allegedly
mandated that training homework be completed off-the-clock and
without compensation. Accordingly, the Defendant compensated them
solely on the basis of their clocked hours, and at the beginning
and end of their scheduled shifts. As a result, although they
regularly worked more than 40 hours per week, the Plaintiff and
other similarly situated Correction Officers were not paid proper
overtime compensation at the rate of one and one-half times their
regular rates of pay for all hours worked in excess of 40 per
workweek, says the Plaintiff.
The Plaintiff brings this complaint as a class and collective
action against the Defendant seeking for compensatory damages for
all unpaid wages, as well as liquidated damages, costs and
attorneys' fees incurred, and other relief as the Court deems
equitable and just.
Cuyahoga County is a large urban county located in the northeastern
part of the U.S. state of Ohio. [BN]
The Plaintiff is represented by:
Scott D. Perlmuter, Esq.
Kathleen Harris, Esq.
TITTLE & PERLMUTER
4106 Bridge Ave.
Cleveland, OH 44113
Tel: (216) 285-9991
Fax: (888) 604-9299
E-mail: scott@tittlelawfirm.com
DIME OPTICS: Brito Sues Over Unsolicited Telephonic Sales Calls
---------------------------------------------------------------
LILLIAM BRITO, individually and on behalf of all others similarly
situated, Plaintiff v. DIME OPTICS, LLC, Defendant, Case No.
156141719 (Fla. 13th Jud. Cir. Ct., August 25, 2022) alleges the
Defendant of violations of the Florida Telephone Solicitation Act.
The Plaintiff asserts that the Defendant sent a telephonic sales
call to her telephone number on or after July 1, 2021. Accordingly,
the Defendant engages in sending telephonic sales calls to
telephone numbers belonging to thousands of consumers in Florida in
an attempt to promote its goods and services. However, the
Defendant failed to secure the called parties' prior express
written consent, including the Plaintiff. The Defendant's
telephonic sales calls allegedly involved an automated system for
the selection or dialing of telephone numbers or the playing of a
recorded message when a connection is completed, the Plaintiff
says.
As a result of the Defendant's unlawful conduct of sending
unsolicited telephonic sales calls, the Plaintiff and other
similarly situated individuals were aggrieved. Thus, on behalf of
herself and all other similarly situated individuals, the Plaintiff
brings this complaint as a class action to seek for an injunction
requiring the Defendant to cease all telephonic sales calls made
without prior express written consent. The Plaintiff also seeks
statutory damages, reasonable attorney's fees and court costs, and
other relief as the Court deems necessary, the suit asserts.
Dime Optics, LLC retails apparel and fashion. [BN]
The Plaintiff is represented by:
Benjamin W. Raslavich, Esq.
KUHN RASLAVICH, P.A.
2110 West Platt Street
Tampa, FL 33606
Tel: (813) 422-7782
Fax: (813) 422-7783
E-mail: ben@theKRfirm.com
DINGDONG LTD: McCormack Suit Alleges 89% Drop of Stock Price
------------------------------------------------------------
RYAN MCCORMACK, individually and on behalf of all others similarly
situated, Plaintiff v. DINGDONG (CAYMAN) LTD., CHANGLIN LIANG, LE
YU, YI DING, ERIC CHI ZHANG, WEILI HONG, PHILIP WAI LAP LEUNG,
COLLEEN A. DE VRIES, MORGAN STANLEY & CO. LLC, BOFA SECURITIES,
INC., CREDIT SUISSE SECURITIES (USA) LLC, MISSION CAPITAL
MANAGEMENT LIMITED, HSBC SECURITIES (USA) INC., FUTU INC., TIGER
BROKERS (NZ) LIMITED, and COGENCY GLOBAL INC., Defendants, Case No.
1:22-cv-07273 (S.D.N.Y., August 25, 2022) is a class action against
the Defendants for violations of Securities Act of 1933.
According to the complaint, the Defendants filed materially false
and misleading registration statements with the U.S. Securities and
Exchange Commission (SEC) in connection with Dingdong's June 2021
initial public stock offering (IPO). Unbeknownst to prospective
investors, the registration statement misrepresented Dingdong's
commitment to ensuring the safety and quality of the food it
distributes to the market. By the Defendants' omissions and
misrepresentation, the Plaintiff and other American Depository
Shares (ADS) purchasers were unable to adequately assess the value
of the shares offered in connection with the IPO, and thus
purchased their ADS without material information and to their
detriment. When the truth emerged, Dingdong's shares traded as low
as $2.51 per ADS, representing a decline of over 89 percent from
the $23.50 IPO offering price. As a result, investors have lost
tens of millions of dollars, says the suit.
Dingdong (Cayman) Ltd. is a China-based grocery e-commerce
company.
Morgan Stanley & Co. LLC is a financial services firm based in New
York, New York.
BofA Securities, Inc. is a financial services firm based in New
York, New York.
Credit Suisse Securities (USA) LLC is a financial services firm
based in New York, New York.
Mission Capital Management Limited is a financial services firm
based in New York, New York.
HSBC Securities (USA) Inc. is a financial services firm based in
New York, New York.
Futu Inc. is a brokerage firm in California.
Tiger Brokers (NZ) Limited is a finance broker in Auckland, New
Zealand.
Cogency Global Inc. is a provider of statutory representation &
corporate services based in New York, New York. [BN]
The Plaintiff is represented by:
Thomas L. Laughlin, IV, Esq.
Jonathan M. Zimmerman, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
Telephone: (212) 223-6444
Facsimile: (212) 223-6334
E-mail: tlaughlin@scott-scott.com
jzimmerman@scott-scott.com
ELIGO ENERGY: Faces Aley Suit Over Unsolicited Telemarketing Calls
------------------------------------------------------------------
RHONDA ALEY, on behalf of herself and others similarly situated,
Plaintiff v. ELIGO ENERGY, LLC, Defendant, Case No. 1:22-cv-04543
(N.D. Ill., August 25, 2022) is a class action complaint brought
against the Defendant for its alleged violations of the Telephone
Consumer Protection Act.
In an attempt to generate new customers, the Defendant allegedly
placed multiple telemarketing calls to the Plaintiff's cellular
telephone number 315-225-XXXX, which has always been on the
National Do Not Call Registry since October 27, 2008, as well as to
other numerous residential telephone numbers on the NDNC Registry.
According to the complaint, the Defendant's calls on the
Plaintiff's telephone number include at least two calls on August
9, 2022. Although the Plaintiff rejected the first call, the
Defendant called again leaving an alleged pre-recorded message,
which mentions a review of the supply charges for the Plaintiff's
National Grid electric statement and asking the Plaintiff to give
the caller a return call. The Plaintiff called back the number left
on the message only to find out that the caller was from the
Defendant, who intentionally advertises the Defendant's services.
Accordingly, prior to the filing of this complaint, the Plaintiff's
counsel wrote to the Defendant regarding its calling conduct, which
the Defendant did not deny, says the suit.
The Plaintiff asserts that she never consented the Defendant to
send her unsolicited telemarketing calls, which have caused her and
other similarly situated individuals harm because their privacy
have been violated and they were annoyed and harassed. Thus, on
behalf of herself and all other similarly situated individuals, the
Plaintiff seeks an injunctive relief prohibiting the Defendant from
calling cellular telephone numbers advertising their goods and
services using a pre-recorded message or making telemarketing calls
to numbers on the NDNC Registry. The Plaintiff also seeks statutory
damages, and other relief as the Court deems just and proper.
Eligo Energy, LLC retail electricity supplier based in Chicago.
[BN]
The Plaintiff is represented by:
Anthony I. Paronich, Esq.
PARONICH LAW, P.C.
350 Lincoln St., Suite 2400
Hingham, MA 02043
Tel: (617) 485-0018
E-mail: anthony@paronichlaw.com
FANATICS LLC: Cavanaugh UCL Suit Removed to E.D. California
-----------------------------------------------------------
The case styled JAKE CAVANAUGH, individually and on behalf of all
others similarly situated v. FANATICS, LLC, Case No. 22CEG01395,
was removed from the Superior Court of the State of California,
County of Fresno, to the U.S. District Court for the Eastern
District of California on August 25, 2022.
The Clerk of Court for the Eastern District of California assigned
Case No. 1:22-cv-01085-JLT-SAB to the proceeding.
The case arises from the Defendant's alleged breach of contract and
violations of the California's Unfair Competition Law and the
California's Consumers Legal Remedies Act by charging a hidden
shipping fee to consumers.
Fanatics, LLC is a company that sells licensed sportswear,
collectibles, and merchandise, with its principal place of business
in Florida. [BN]
The Defendant is represented by:
Robert J. Herrington, Esq.
Adil M. Khan, Esq.
GREENBERG TRAURIG, LLP
1840 Century Park East, Suite 1900
Los Angeles, CA 90067-2121
Telephone: (310) 586-7700
Facsimile: (310) 586-7800
E-mail: herringtonr@gtlaw.com
khanad@gtlaw.com
FINSERV HOLDINGS: Misleads Stockholders to OK Merger, Saunders Says
-------------------------------------------------------------------
ANDREW SAUNDERS, individually and on behalf of all others similarly
situated, Plaintiff v. LEE EINBINDER, HOWARD KURZ, ROBERT MATZA,
DIANE B. GLOSSMAN, ARIS KEKEDJIAN, and FINSERV HOLDINGS LLC,
Defendants, Case No. 2022-0755-PAF (Del. Ch., August 25, 2022) is a
verified class action complaint against the Defendants for breach
of fiduciary duty.
According to the complaint, the Defendants filed a materially false
and misleading registration statement with the U.S. Securities and
Exchange Commission (SEC) concerning Katapult Holdings, Inc.'s
financial condition to convince FinServ Acquisition Corp.
stockholders to approve FinServ's merger with Katapult.
Specifically, the registration statement failed to disclose that:
(1) Katapult's gross lease originations were declining in the
second quarter of 2021; and (2) Katapult's lease originations were
in decline from March 2021 onward made Katapult's financial
projections for 2021, 2022, and 2023 false and misleading. Thus,
the registration statement's projections were highly misleading and
known to be unrealistic and almost certainly unattainable, given
that Katapult's lease originations were in stark decline. As a
result of these material omissions and/or misleading statements,
FinServ Class A common stockholders were not provided with adequate
information for their decision whether to redeem their stock and
whether to approve the merger transaction. In total, since the
transaction, Katapult shares have lost over 92% of their overall
value and closed at $1.3 per share. This decline in stock price
implies value destruction of $223 million for FinServ Class A
stockholders, when compared with the $10.05 per share redemption
rights, says the suit.
FinServ Holdings LLC is a Delaware limited liability company. [BN]
The Plaintiff is represented by:
Gregory V. Varallo, Esq.
Daniel E. Meyer, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
500 Delaware Avenue, Suite 901
Wilmington, DE 19801
Telephone: (302) 364-3601
- and –
Peter B. Andrews, Esq.
Craig J. Springer, Esq.
David Sborz, Esq.
Andrew J. Peach, Esq.
Christopher P. Quinn, Esq.
Jackson Warren, Esq.
ANDREWS & SPRINGER LLC
4001 Kennett Pike, Suite 250
Wilmington, DE 19807
Telephone: (302) 504-4957
- and –
Mark Lebovitch, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
1251 Avenue of the Americas
New York, NY 10020
Telephone: (212) 554-1400
- and –
D. Seamus Kaskela, Esq.
Adrienne Bell, Esq.
KASKELA LAW LLC
18 Campus Boulevard, Suite 100
Newtown Square, PA 19073
Telephone: (484) 258-1585
GENIUS BRANDS: 9th Cir. Appeal Filed Over Securities Suit Dismissal
-------------------------------------------------------------------
Genius Brands International disclosed in its Form 10-Q Quarterly
Report for the quarterly period ended June 30, 2022 filed with the
Securities and Exchange Commission on August 17, 2022, that on
August 12, 2022, lead plaintiffs in In re Genius Brands
International, Inc. Securities Litigation, Master File No.
2:20-cv-07457 DSF (RAOx) filed a notice of appeal to the United
States Court of Appeals for the Ninth Circuit.
As previously disclosed, the Company, its Chief Executive Officer
Andy Heyward, and its Chief Financial Officer Robert Denton, were
named as defendants in a putative class action lawsuit filed in the
U.S. District Court for the Central District of California and
styled In re Genius Brands International, Inc. Securities
Litigation, Master File No. 2:20-cv-07457 DSF (RAOx).
Initially, the lead plaintiffs alleged generally that the
defendants violated Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 (the "Exchange Act"). Plaintiffs sought
unspecified damages on behalf of the alleged class of persons who
invested in the Company's common stock during the alleged class
period. The defendants moved to dismiss lead plaintiffs' amended
complaint; and in a decision issued on August 30, 2021, the Court
dismissed the amended complaint but granted lead plaintiffs a
further opportunity to plead a claim.
On September 27, 2021, the lead plaintiffs filed a second amended
complaint, naming the same defendants. The new complaint alleged
that the Company made numerous false or misleading statements about
the Company's business and business prospects over an expanded
alleged class period, which they say violated Section 10(b) and
20(a) of the Exchange Act. The lead plaintiffs again sought
unspecified damages on behalf of the alleged class--persons who
invested in the Company's common stock during the newly alleged
class period.
In November 2021, defendants filed a motion to dismiss the second
amended complaint. On July 15,2022, the Court issued a decision
dismissing the second amended complaint in its entirety and with
prejudice.
On August 12, 2022, lead plaintiffs filed a notice of appeal to the
United States Court of Appeals for the Ninth Circuit. The Company
said it cannot predict the outcome of that appeal or the timing of
a decision on it.
Genius Brands International, Inc., a content and brand management
company, creates and licenses multimedia content for toddlers to
tweens worldwide.
GKN NORTH AMERICA: Loses Bid to Dismiss Parker's Amended ERISA Suit
-------------------------------------------------------------------
In the case, JEFFREY PARKER, DONALD B. LOSEY, and SHELLEY
WEATHERFORD, individually and on behalf of themselves, the GKN
Group Retirement Savings Plan, and all others similarly situated,
Plaintiffs v. GKN NORTH AMERICA SERVICES, INC., BOARD OF DIRECTORS
OF GKN NORTH AMERICA SERVICES, INC., and the BENEFIT Defendants,
Case No. 21-12468 (E.D. Mich.), Judge Sean F. Cox of the U.S.
District Court for the Eastern District of Michigan, Souther
Division, denies both the Defendant's Motion to Dismiss Plaintiff's
First Amended Complaint and the U.S. Chamber of Commerce's motion
for leave to participate as an Amicus Curiae.
The case is a proposed class action on behalf of persons who were
participants or beneficiaries of the Defendants' employer-sponsored
retirement plan. The Plaintiffs make several claims that the
Defendants breached their fiduciary duties of prudence and loyalty
under the Employment Retirement Income Security Act ("ERISA").
On Oct. 19, 2021, the Plaintiffs filed their FAC seeking to
represent a class of persons who were participants or beneficiaries
of retirement plans offered by the Defendants (GKN North America
Services, Inc., Board of Directors of GKN North America Services,
Inc., the Benefit Committee) to employees. The "Plan" is
"GoalMaker", an asset allocation service selected by the Defendants
and provided by Prudential Insurance Co. Prudential markets the
Plan as a service to help keep retirement goals on track and
periodically rebalance participants' accounts to match their
portfolio. The Plaintiffs allege that they participated in the Plan
during their employment with defendants and suffered financial harm
due to defendants' actions regarding the Plan.
In their FAC, the Plaintiffs claim the plan cost "participants
millions of dollars" and "undermined the purpose of 401(k) plans --
i.e., to maximize participants' retirement savings" as required
under the Employment Retirement Income Security Act ("ERISA"). They
claim the Defendants' actions constitute violations of the
fiduciary duties of prudence and loyalty.
On May 5, 2022, the Defendants filed a motion to dismiss the
Plaintiffs' FAC. On June 9, 2022, the Plaintiffs filed their
opposition to the motion to dismiss. On June 30, 2022, the
Defendants filed their reply to the Plaintiffs' opposition to the
motion to dismiss. In their reply, they addressed Smith v.
CommonSpirit, 37 F.4th 1160 (6th Cir. 2022), which is highly
relevant to the proceedings but was decided after the Plaintiffs
filed their opposition to the motion on June 9, 2022. The
Plaintiffs subsequently filed an unopposed motion for leave to file
a sur reply on July 8, 2022, to address that case. The Court
granted their motion for leave on Aug. 11, 2022.
Separately, on May 12, the Chamber filed a motion for leave to
participate as an amicus curiae. On May 16, 2022, the U.S. Chamber
of Commerce Plaintiffs filed their opposition to the Chamber's
motion to participate as amicus curiae. On May 23, 2022, the
Chamber filed a reply in support of the motion to participate as
amicus. A motion hearing for both the motion to dismiss and for
leave to participate as an amicus curiae is set for Aug. 18, 2022.
The Defendants seek to dismiss all of the Plaintiffs' claims, to
include claims of breaches of the fiduciary duties of imprudence,
loyalty, and to monitor.
As to the Chamber's motion, Judge Cox opines that there is no
statute or rule of civil procedure regarding the granting or denial
of proposed amicus briefs. It is thus at the discretion of the
court to determine if the proposed amicus has demonstrated its
entitlement to file a brief. In its motion, the proposed amicus
claims its brief will "contribute in clear and distinct ways" to
the Court's analysis of the case including explaining the broader
regulatory or commercial context, supplying empirical data, and
providing practical perspectives on the consequences of varying
outcomes.
Judge Cox disagrees. He says, the motion and its accompanying
proposed brief simply rehash arguments already made by the parties
and summarizes case outcomes from other jurisdictions irrelevant to
the case. He therefore denies the Chamber's Motion for Leave to
Participate as Amicus Curiae.
As to the ERISA claims, Judge Cox explains that the fiduciary duty
under ERISA includes the duty of prudence and the duty of loyalty,
as well as the derivative duty to monitor. A breach of either duty
results in a finding of a breach of fiduciary duty.
As to the duty of prudence claim, Judge Cox finds that the
Plaintiffs make a claim of a breach of fiduciary duty under the
duty of prudence to be sufficient to survive a motion to dismiss.
The Plaintiffs' selected comparator funds that were significantly
cheaper and consistently outperformed the Plan funds. While the
data included information from 2022 which is outside the time
period in question, it also covered and focused on data from the
years at issue. This information constitutes accurate comparator
data.
The Plaintiffs also did more than make a bare accusation of better,
cheaper funds simply existing in the market. The Plaintiffs
selected comparator funds all within the same MorningStar
categories as the funds in the Plan. They make a successful claim
of a breach of the fiduciary duty of prudence by failing to
investigate and select lower-cost alternatives and by retaining
imprudent plan investments sufficient to survive at the motion to
dismiss stage.
In addition, to make a claim of excessive recordkeeping fees, one
must make a context specific comparison. A comparison of "Fee A" to
"Fee B" exclusively considering price is insufficient. A party must
state what the fees cover and how they are similar to make a
successful context-specific comparison. As such, without further
context as to what the fees cover, the Plaintiffs' claim of
excessive recordkeeping fees is insufficient for a claim of a
fiduciary's breach of the duty of prudence.
As to ERISA's duty of loyalty claim, the Plaintiffs claim the Plan
Defendants chose served the asset allocation service, Prudential's,
"interests by funneling participants' retirement savings into
Prudential's own overpriced proprietary investment products and
into investments that paid kickbacks to Prudential." They further
claim that this supports "an inference that Defendants acted in a
way that favored Prudential over the Plans' participants." The
Defendants argue the Plaintiffs' claim is insufficient because a
breach of loyalty claim "requires factual allegations that support
a plausible inference that the fiduciaries acted for the purpose of
providing benefits to a third party, and that their motivation was
to put their own interests ahead of plan participants."
Judge Cox opines that the Plaintiffs fail to make any allegations
to suggest that the fiduciaries' operative motive was self-dealing
or to benefit their own interests (as opposed to the
beneficiaries). Rather, they allege that the Defendants' choice
asset allocation service, Prudential, was acting in its own
interest. But the actions of the asset allocation service are not
at issue here. The question is whether the Defendants, as
fiduciaries, acted for the purpose of benefitting the third party
or themselves. Without the required allegations of fiduciary
self-dealing, it is not reasonable for the Court to find a breach
of fiduciary duty under the duty of loyalty theory.
Finally, as to the failure to monitor claim, ERISA fiduciaries have
a "continuing duty to monitor investments and remove imprudent
ones." However, unlike the fiduciary duties of prudence and
loyalty, most courts treat a duty to monitor claim as deriving from
a successful claim of a breach of fiduciary duty. If a breach of
fiduciary duty claim survives so too does the claim for failure to
monitor. Judge Cox has found that the Plaintiffs' allegations for
breach of the fiduciary duty of prudence to be sufficient, meaning
the claim for failure to monitor may stand.
For the reasons he stated, Judge Cox denies the Defendants' motion
to dismiss and the Chamber's motion for leave to participate as an
amicus curiae.
A full-text copy of the Court's Aug. 26, 2022 Opinion & Order is
available at https://tinyurl.com/2zjacvz4 from Leagle.com.
GLENN MEDICAL: Underpays Vocational Nurses, Reimer Suit Claims
--------------------------------------------------------------
AUSTIN REIMER, individually and on behalf of all others similarly
situated, Plaintiff v. GLENN MEDICAL CENTER, INC., GLENN MEDICAL
CENTER, LLC, AMERICAN ADVANCED MANAGEMENT GROUP, INC., COLUSA
MEDICAL CENTER, LLC, and DOES 1 through 20, inclusive, Defendants,
Case No. 22CV01937 (Cal. Super., Butte Cty., August 25, 2022) is a
class action against the Defendants for violations of California
Labor Code, the Employee Retirement Income Security Act of 1974,
and California's Business and Professions Code including failure to
pay overtime wages, failure to provide meal breaks, failure to
provide rest breaks, failure to pay vested vacation time upon
termination, failure to pay wages upon termination, failure to
provide proper wage statements, and unfair business practices.
The Plaintiff was employed by the Defendants as a licensed
vocational nurse at the Glenn Medical Center from August 2020
through June 2021.
Glenn Medical Center, Inc. is a health care facility operator in
California.
Glenn Medical Center, LLC is a health care facility operator in
California.
American Advanced Management Group, Inc. is a health care facility
operator in California.
Colusa Medical Center, LLC is a health care facility operator in
California. [BN]
The Plaintiff is represented by:
James Kawahito, Esq.
KAWAHITO LAW GROUP APC
300 Corporate Pointe, Suite 340
Culver City, CA 90230
Telephone: (310) 746-5300
Facsimile: (310) 593-2520
E-mail: jkawahito@kawahitolaw.com
GRAY TELEVISION: Discloses Personal Info Without Consent, Suit Says
-------------------------------------------------------------------
DAVID MCCAUSLAND, on behalf of himself and all others similarly
situated v. GRAY TELEVISION, INC., Case No. 1:22-cv-07539
(S.D.N.Y., Sept. 2, 2022) is a class action complaint in relation
to Defendant disclosing the Plaintiff's personally identifiable
information (PII) without Plaintiff's consent.
The Plaintiff is a subscriber of Defendant's website,
westernmassnews.com, which offers a wide array of video content.
When Plaintiff watched videos on westernmassnews.com, the
Plaintiff's PII was shared with Facebook without first notifying
Plaintiff and without his consent. The Defendant violated the Video
Privacy Protection Act, 18 U.S.C. section 2710 (VPPA) each time it
knowingly disclosed Plaintiff's PII to Facebook without consent,
says the suit.
The Defendant is allegedly liable to Plaintiff for statutory
damages in an amount not less than $2,500 for each disclosure of
PII, punitive damages, attorneys' fees and costs. The Defendant
developed, owns, and/or operates a platform of websites, including
westernmassnews.com, that analogously disclose subscribers' PII to
Facebook without notifying subscribers and without their consent,
including the following:
-- azfamily.com;
-- wfsb.com;
-- kptv.com;
-- kctv5.com;
-- fox5vegas.com;
-- foxcarolina.com;
-- wnem.com;
-- fox10tv.com;
-- cbs46.com; and
-- kmov.com.
The Defendant developed, owns, and/or operates the Websites,
including westernmassnews.com. The Defendant is a media
broadcasting company that developed, owns, and/or operates
the Websites, which receive millions of visits each week.[BN]
The Plaintiff is represented by:
Steven D. Liddle, Esq.
Nicholas A. Coulson, Esq.
Lance Spitzig, Esq.
LIDDLE SHEETS COULSON P.C.
975 East Jefferson Avenue
Detroit, MI 48207-3101
Telephone: (313) 392-0015
E-mail: sliddle@lsccounsel.com
ncoulson@lsccounsel.com
lspitzig@lsccounsel.com
GREENBRIER INTERNATIONAL: Hunt Alleges Deceptive Adhesive Patches
-----------------------------------------------------------------
Shannon Hunt, individually and on behalf of all others similarly
situated v. Greenbrier International, Inc., Case No. 1:22-cv-04742
(N.D. Ill., Sept. 2, 2022) alleges that the Defendant's
misrepresented its "Maximum Strength" adhesive patches that promise
to deliver 4% lidocaine.
According to the complaint, the claim that the Product provides
"Numbing Relief" for a wearer's "Back, Neck, Shoulders, Elbows and
Knees" is misleading because it implies it completely blocks and
desensitizes nerves and pain receptors, eliminates responses to
painful stimuli, and can treat neuropathic and musculoskeletal
pain, including back and spinal pain. The Defendant makes other
representations and omissions with respect to the Product which are
false and misleading, says the suit.
The front label identifies it as a "Pain Relief Gel Patch" with
"Lidocaine 4%," to be used "For fast relief of minor aches and
pains in: Back, Neck, Shoulders, Elbows and Knees." The label
promises "Temporary Relief" and "Numbing relief" for eight hours,
shown by the clock image and text, "Apply For 8 Hours" next to a
patch applied to a lower back from which red is emanated,
indicating the purported relief provided, the suit asserts.
Lidocaine is a topical anesthetic used to treat pain by blocking
the transmission of pain signals from nerve endings in the skin to
the spinal cord and brain. Although lidocaine patches can be
prescribed by doctors, they are available to consumers as an
over-the-counter ("OTC") product. A 2021 peer-reviewed study in the
Journal of Pain Research found that approximately half of lidocaine
patches promising adhesion for eight hours failed to completely
adhere to the participant's skin for the entire time.
The Defendant sold more of the Product and at higher prices than it
would have in the absence of this misconduct, resulting in
additional profits at the expense of consumers.
Had Plaintiff known the truth, he would not have bought the Product
or would have paid less for it. As a result of the false and
misleading representations, the Product is sold at a premium price,
approximately no less than no less than $2.99 for two patches,
excluding tax and sales, higher than similar products, represented
in a non-misleading way, and higher than it would be sold for
absent the misleading representations and omissions, the suit
further alleges.
Greenbrier is a wholly-owned and controlled subsidiary of Dollar
Tree Stores, Inc. Dollar Tree is an American retail corporation
that operates a chain of over 15,000 stores, selling everything
from outdoor furniture to groceries.
Greenbrier manufactures, markets, labels and sells the patches
promising to deliver 4% lidocaine for eight hours under the Assured
brand.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Rd Ste 412
Great Neck NY 11021
Telephone: (516) 268-7080
E-mail: spencer@spencersheehan.com
HARRIS UNITED: Nelson Seeks to Recover Unpaid Overtime Under FLSA
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MATT NELSON, individually and on behalf of all others similarly
situated v. HARRIS UNITED, LLC, Case No. 4:22-cv-00384-CVE-CDL
(N.D. Okla., Sept. 2, 2022) seeks recover unpaid overtime
compensation, liquidated damages, and attorneys' fees and costs
pursuant to the Fair Labor Standards Act of 1938.
Although Plaintiff and the Putative Collective Members have
routinely worked (and continue to work) in excess of 40 hours per
workweek, they were not paid overtime of at least one and one-half
their regular rates for all hours worked in excess of 40 hours per
workweek, the lawsuit contends.
Plaintiff Matt Nelson and all current and former Superintendents
and Assistant Superintendents worked for the Defendant -- Harris
United -- anywhere in the United States, at any time from September
2, 2019 through the final disposition of this matter. He was
employed by Harris United in Oklahoma from September 2020 until
August 2022 as a Superintendent.
Harris United provides construction services to its clients across
the United. To provide its services, Harris United employed (and
continues to employ) numerous Superintendents and Assistant
Superintendents as salaried workers -- including the Plaintiff and
the individuals that make up the putative or potential
classes.[BN]
The Plaintiff is represented by:
Hugh M. Robert, Esq.
SHERWOOD, MCCORMICK & ROBERT
Bank of America Center
15 W. 6th Street, Suite 2112
Tulsa, OK 74119
Telephone: (918) 592-1144
Facsimile: (918) 576-6907
E-mail: hugh@smr-law.com
HSN INC: Smith's Bid to Remand Consumer Suit to State Court Denied
------------------------------------------------------------------
Judge Julien Xavier Neals of the U.S. District Court for the
District of New Jersey denies the Plaintiff's second motion to
remand to state court the lawsuit titled NINA SMITH, individually
and on behalf of all others similarly situated, Plaintiff v. HSN,
INC., et al., Defendants, Case No. 20-12869 (JXN) (ESK) (D.N.J.).
The lawsuit is a putative consumer class action suit against
Defendants HSN, Inc., Ingenious Designs, LLC, and Joy Mangano
(collectively, the "HSN Defendants") for their alleged design,
manufacturing, distribution and/or sale of a defective portable
clothing steamer marketed as the "My Little Steamer Deluxe." The
case, which alleges violations of the New Jersey Consumer Fraud Act
("NJCFA"), was filed in the Superior Court of New Jersey, Law
Division, Middlesex County ("state court"), but was subsequently
removed to this Court pursuant to the Class Action Fairness Act of
2005 ("CAFA") by the HSN Defendants.
Presently before the Court is Plaintiff Nina Smith's second motion
to remand. Magistrate Judge Edward S. Kiel issued a Report and
Recommendation, (the "R&R") recommending the Court deny the
Plaintiff's motion. The Plaintiff filed a timely objection to the
R&R, and the HSN Defendants filed a response to the Plaintiff's
objection.
As set forth in the R&R, the Plaintiff filed the class action in
State Court on behalf of herself and the putative class against the
HSN Defendants. The putative class consists of "all New Jersey
residents who purchased and/or used a My Little Steamer Deluxe
product." According to the Plaintiff's Complaint, the My Little
Steamer Deluxe's defect is "widespread and dangerous" and many of
the purchasers of the Steamer suffered severe burns from boiling
water leaking and spewing during use.
In addition to compensatory damages, the Complaint seeks treble
damages and attorneys' fees, under the NJCFA. The Plaintiff, as an
individual, also seeks recovery of medical expenses for injuries
she sustained as a result of the Steamer. She asserts that "Class
members will be limited to a recovery of Seventy-Four Thousand Nine
Hundred Ninety-Nine ($79,999) Dollars, per individual proposed
Class member," "inclusive of all treble damages, attorneys' fees,
interest and cost."
The HSN Defendants removed by invoking subject-matter jurisdiction
pursuant to CAFA asserting that (a) diversity of citizenship, (b)
that the purported class members exceeds 100, and (c) the aggregate
amount in controversy for the entire proposed class exceeds
$5,000,000, exclusive of costs and interest ("CAFA Threshold").
On Nov. 30, 2021, District Judge Kevin McNulty, who was formerly
assigned to this case, issued an Opinion and Order denying the
Plaintiff's first motion to remand, to the extent the Plaintiff
argued that the removal was untimely and barred by the
local-controversy and the home-state exceptions and that minimal
diversity of citizenship was lacking. With regard to the CAFA
Threshold, however, Judge McNulty found that "it is possible that
the amount in controversy exceeds $5 million but the limited
evidence presented is insufficient to meet the removing party's
burden of proof by a preponderance of evidence." As a result, the
Plaintiff's motion was administratively terminated subject to
renewal after the completion of jurisdictional discovery and
particularly the amount in controversy. Jurisdictional discovery
was completed on Feb. 22, 2021.
On March 19, 2021, the Plaintiff filed her second motion to remand.
In the instant motion, the Plaintiff contends remand is appropriate
on the basis that the HSN Defendants have not demonstrated that the
CAFA Threshold has been met.
The Court referred the Plaintiff's second motion to remand to Judge
Kiel for a report and recommendation. On Oct. 12, 2021, Judge Kiel
issued a R&R recommending the Court deny the Plaintiff's motion.
Judge Neals notes that the Plaintiff's sole objection to the R&R is
to "the presumption of a 30% legal fee for her counsel" for
purposes of determining whether potential damages exceed the CAFA
Threshold. She argues that the cases cited in the R&R "refer to 30%
as a median, not a mandate" and notes that parties are free to
negotiate as they see fit.
The Plaintiff avers that the simplest way to resolve this issue and
remand the matter to State Court is for her counsel to accept a
reduced fee of 25%. Judge Kiel's calculation would then be $355,800
in attorney's fees for a total of $4,644,200 not $5,000,160.
The Court finds that the Plaintiff's objection lacks merit.
As an initial matter, the Court notes that an award of attorneys'
fees must be included as part of the amount in controversy
determination where such an award is provided for by statute. Under
the NJCFA, a plaintiff who suffers "any ascertainable loss of
money" as a result of unlawful conduct under the act will be
awarded threefold the actual damages sustained, as well as
"reasonable attorneys' fees, filing fees and reasonable costs of
suit."
The Plaintiff's Complaint alleges that the HSN Defendants made
affirmative misrepresentations and knowing and intentional
omissions of material facts regarding the Steamer in violation of
the New Jersey Consumer Fraud Act. It further alleges that the
Plaintiff and the putative class suffered "an ascertainable loss
and damages" as a result of the HSN Defendants' "misrepresentation
and knowingly intentional omissions." Consequently, Judge Neals
opines that reasonable attorneys' fees would be available to the
Plaintiff under the statute and must be considered in determining
whether the CAFA Threshold is satisfied.
Judge Kiel's use of a 30% attorney's fee to determine the amount in
controversy was proper, Judge Neals holds. The Plaintiff has not
offered contrary precedent to challenge the use of a 30% legal fee
or the method for determining attorneys' fees. Further, in her
objection, the Plaintiff states, for the first time, that counsel
is willing to cap any attorneys' fee to 25% rather than accept the
assumed (but not mandated) fee of 30% and thereby reduce the amount
in controversy below the CAFA Threshold.
Consequently, the Plaintiff's after-the-fact stipulation limiting
counsel's fee to 25% is of no moment, Judge Neals holds. The
ultimate determination of the amount in controversy requires a
reasonable reading of the value of the rights being litigated.
Therefore, the Court finds that Judge Kiel's findings that as to
the amount in controversy are supported by the record. The
Defendants have shown by a preponderance of the evidence that the
amount in controversy will exceed $5 million.
In sum, the Court is satisfied from the evidence presented that the
amount in controversy exceeds the $5,000,000 and the CAFA Threshold
has been met. For the reasons discussed, the Report and
Recommendation of Magistrate Judge Edward S. Kiel is adopted and
the Plaintiff's second motion to remand is denied. An appropriate
order accompanies this opinion.
A full-text copy of the Court's Opinion dated Aug. 18, 2022, is
available at https://tinyurl.com/2p86x5us from Leagle.com.
JOHNSON & JOHNSON: Pain Reliever Contains Heavy Metals, Suit Says
-----------------------------------------------------------------
VALERIE MORRISON, individually and on behalf of all others
similarly situated, Plaintiff v. JOHNSON & JOHNSON CONSUMER INC.,
Defendant, Case No. 3:22-cv-01276-BEN-RBB (S.D. Cal., Aug. 29,
2022) seeks to enjoin the Defendant's practice of deceptively
omitting material information about safety concerns associated with
the titanium dioxide (TiO2) in certain of the Defendant's Tylenol
products.
According to the Plaintiff in the complaint, the Defendant sold
over-the-counter analgesic, Tylenol, designed to relieve pain. Many
varieties, however, contain titanium dioxide (TiO2), a heavy metal
and artificial colorant that is harmful upon accumulation in the
human body, including in the liver, spleen, kidney, brain, and
lungs. Because the Defendant omits from the labeling of these
Tylenol products material information regarding the safety concerns
associated with consuming this toxin, its behavior is likely to
deceive reasonable consumers, says the suit.
JOHNSON & JOHNSON CONSUMER INC. engages in the research and
development of products. The Company provides products for
newborns, babies, toddlers, and mothers, including cleansers, skin
care, moisturizers, hair care, diaper care, sun protection, and
nursing products. [BN]
The Plaintiff is represented by:
Jack Fitzgerald, Esq.
Paul K. Joseph, Esq.
Melanie Persinger, Esq.
Trevor M. Flynn, Esq.
Caroline S. Emhardt, Esq.
FITZGERALD JOSEPH LLP
2341 Jefferson Street, Suite 200
San Diego, CA 92110
Telephone: (619) 215-1741
Email: jack@fitzgeraldjoseph.com
paul@fitzgeraldjoseph.com
melanie@fitzgeraldjoseph.com
trevor@fitzgeraldjoseph.com
caroline@fitzgeraldjoseph.com
KIA AMERICA: Vehicles Lack Engine Immobilizers, Johnson Suit Claims
-------------------------------------------------------------------
LaShaun Johnson, individually and on behalf of all others similarly
situated v. Kia America, Inc. and Hyundai Motor America, Case No.
0:22-cv-02164-ECT-DJF (D. Minn., Sept. 2, 2022) is a class action
complaint brought by the Plaintiff on behalf of himself and on
behalf of a Class of similarly situated consumers against the
Defendants who purchased or leased vehicles manufactured and sold
by the Defendants.
The Defendants manufacture and sell motor vehicles in the United
States and Minnesota. These products include popular models like
the Hyundai Tucson and Santa Fe and the Kia Sportage and Sorento.
The Defendants' vehicles allegedly suffer from a significant
defect: they do not include an engine immobilizer. An engine
immobilizer is designed to prevent vehicle theft when a vehicle is
left unattended. An engine immobilizer works by transmitting a code
to the vehicle when the key is inserted in the ignition switch or a
key fob is inside the vehicle, says the suit.
Kia and Hyundai are aware that their vehicles lack engine
immobilizers. Kia and Hyundai are aware that thefts of vehicles
manufactured and sold by them have increased nationwide. Despite
the rise in vehicle thefts, Kia and Hyundai have not issued a
recall or offered to install vehicle immobilizers in the affected
vehicles, the lawsuit contends.
The Plaintiff purchased vehicles from Defendants which suffer from
the defect. The Plaintiff would not have purchased the vehicles or
would have paid less for the vehicles had Plaintiff known about the
defect.
As a result of Defendants' alleged unfair, deceptive, and/or
fraudulent business practices, consumers of these products,
including Plaintiff, have suffered an ascertainable loss,
injury-in-fact, and otherwise have been harmed by Defendants'
conduct.[BN]
The Plaintiff is represented by:
Timothy J. Beckerm, Esq.
Jacob R. Rusch, Esq.
Zackary S. Kaylor, Esq.
JOHNSON BECKER PLLC
444 Cedar Street, Suite 1800
St. Paul, MN 55101
Telephone: (612) 436-1804
Facsimile: (612) 436-1801
E-mail: tbecker@johnsonbecker.com
jrusch@johnsonbecker.com
zkaylor@johnsonbecker.com
KINGS FINEST: Fails to Pay Proper Wages, Fernandez Suit Alleges
---------------------------------------------------------------
RIGOBERTO EMMANUEL FERNANDEZ ESTEVEZ, individually and on behalf of
all others similarly situated, Plaintiff v. KINGS FINEST DELI INC.
(d/b/a KINGS FINEST DELI); KING'S DELI & GROCERY, INC. (D/B/A KING
FINEST DELI); MANSOUR YEHYA; JOSE ALFREDO JIMENEZ; and MOHAMED ABDO
YEHIYA, Defendants, Case No. 1:22-cv-07376 (S.D.N.Y., Aug. 29,
2022) is an action against the Defendant for failure to pay minimum
wages, overtime compensation, provide meals, and provide accurate
wage statements.
Plaintiff Fernandez was employed by the Defendants as cook and
delivery driver.
KINGS FINEST DELI INC. owns and operates a retail food store,
located at Bronx, NY, under the name "King Finest Deli". [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
KONINKLIJKE PHILIPS: Faces Class Suit Over Defective CPAP Devices
-----------------------------------------------------------------
OHIO CARPENTERS' HEALTH FUND, individually and on behalf of all
others similarly situated, Plaintiff v. KONINKLIJKE PHILIPS N.V.,
PHILIPS NORTH AMERICA LLC, PHILIPS HOLDING USA INC., PHILIPS RS
NORTH AMERICA LLC, and PHILIPS RS NORTH AMERICA HOLDING
CORPORATION, Defendants, Case No. 2:22-cv-01228-JFC (W.D. Pa.,
August 25, 2022) is a class action against the Defendants for
breach of express warranty, breach of the implied warranty of
merchantability, breach of the implied warranty of usability,
common law fraud, unjust enrichment, and violation of several
consumer protection laws in the U.S.
According to the complaint, the Defendants manufactured and sold
Continuous Positive Airway Pressure (CPAP) and BiLevel Positive
Airway Pressure (BiLevel PAP) devices for sleep and home
respiratory care, which contain polyester-based polyurethane sound
abatement foam (PE-PUR Foam). The Defendants recalled CPAP and
BiLevel PAP devices containing PE-PUR Foam because they determined
that (a) the PE-PUR Foam was at risk for degradation into particles
that may enter the devices' pathway and be ingested or inhaled by
users, and (b) the PE-PUR Foam may off-gas certain chemicals during
operation health risks associated to the devices. As a result of
the health risks associated with the use of these devices, the
Plaintiffs and the Class have suffered injuries, including
substantial economic losses related to their purchase or lease of
the recalled devices and accessories, and replacement machines and
accessories, and losses from not being able to use their machines,
and other consequential damages, says the suit.
Ohio Carpenters' Health Fund is a voluntary employee benefit
association located in Troy, Michigan.
Koninklijke Philips N.V. is a health technology company with its
principal executive offices at Philips Center, Amstelplein 2, 1096
BC Amsterdam, The Netherlands.
Philips North America LLC is a health technology company with its
principal place of business located at 222 Jacobs Street, Floor 3,
Cambridge, Massachusetts.
Philips Holding USA Inc. is a holding company with its principal
place of business located at 222 Jacobs Street, Floor 3, Cambridge,
Massachusetts.
Philips RS North America LLC is a company that manufactures and
markets medical devices with its principal place of business
located at 6501 Living Place, Pittsburgh, Pennsylvania.
Philips RS North America Holding Corporation is a wholly owned
company by Philips Holding USA Inc., with its principal place of
business at 222 Jacobs Street, Cambridge, Massachusetts. [BN]
The Plaintiff is represented by:
Kelly K. Iverson, Esq.
LYNCH CARPENTER, LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 152222
Telephone: (412) 322-9243
E-mail: kelly@lcllp.com
- and –
Joseph P. Guglielmo, Esq.
Donald A. Broggi, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
230 Park Avenue, 17th Floor
New York, NY 10169
Telephone: (212) 223-6444
Facsimile: (212) 223-6334
E-mail: jguglielmo@scott-scott.com
dbroggi@scott-scott.com
KROGER CO: Rosales Wage-and-Hour Suit Removed to C.D. California
----------------------------------------------------------------
The case styled OMAR ROSALES, individually and on behalf of all
others similarly situated v. THE KROGER CO. and DOES 1-100, Case
No. CIVSB2208537, was removed from the Superior Court of the State
of California, County of San Bernardino, to the U.S. District Court
for the Central District of California on August 25, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 5:22-cv-01503 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to pay all straight time wages, failure to
pay all overtime wages, failure to authorize and permit rest
periods, and unfair competition.
The Kroger Co. is a retail company, headquartered in Cincinnati,
Ohio. [BN]
The Defendant is represented by:
Nate J. Kowalski, Esq.
Amber S. Healy, Esq.
Neil M. Katsuyama, Esq.
Lauren S. Gafa, Esq.
ATKINSON, ANDELSON, LOYA, RUUD & ROMO
12800 Center Court Drive South, Suite 300
Cerritos, CA 90703-9364
Telephone: (562) 653-3200
Facsimile: (562) 653-3333
E-mail: NKowalski@aalrr.com
AHealy@aalrr.com
Neil.Katsuyama@aalrr.com
LGafa@aalrr.com
MOHAWK INDUSTRIES: Court Allows Cruz to File 1st Amended Class Suit
-------------------------------------------------------------------
Magistrate Judge Erica P. Grosjean of the U.S. District Court for
the Eastern District of California approved the parties'
stipulation granting the Plaintiff leave to file the proposed First
Amended Class Action Complaint for Damages in the lawsuit entitled
NICO CRUZ, individually, and on behalf of other members of the
general public similarly situated, Plaintiff v. MOHAWK INDUSTRIES,
INC., et al., Defendants, Case No. 1:20-cv-01510-JLT-EPG (E.D.
Cal.).
On Sept. 15, 2020, Plaintiff Nico Cruz filed a putative class
action complaint, individually, and on behalf of other members of
the general public similarly situated, against Defendants Mohawk
Industries, Inc., Daltile Services, Inc., Dal-Tile Services, Inc.,
and Dal-Tile Corp. for violations of the California Labor Code.
On Oct. 23, 2020, the Defendants filed a Notice of Removal and
related documents invoking federal jurisdiction under the Class
Action Fairness Act of 2005 ("CAFA"). On Nov. 23, 2020, the
Plaintiff filed a Notice of Motion and Motion to Remand and related
documents. On Dec. 30, 2020, the Defendants filed a Response in
Opposition to the Plaintiff's Motion to Remand.
On Sept. 23, 2021, the Court granted the Defendants' request to
file supplemental briefing regarding the Plaintiff's Motion to
Remand. On Oct. 22, 2021, the Defendants' filed a supplemental
brief and related documents in connection with the Defendants'
Opposition to the Plaintiff's Motion to Remand.
On Jan. 10, 2022, the Court denied the Plaintiff's Motion to Remand
finding the Defendants established the amounts in controversy
exceeds $5 million.
On April 14, 2022, pursuant to Federal Rules of Civil Procedure 26,
counsel for the Plaintiff and for the Defendants met and conferred
regarding the amendment to the operative complaint proposed by the
Plaintiff. Counsel for the Defendants has agreed to stipulate to
the filing of a First Amended Class Action Complaint for Damages to
include additional facts supporting the causes of action.
Pursuant to the Court's Class Action Scheduling Conference Order,
any motions or stipulations requesting leave to amend the pleadings
were due Aug. 22, 2022.
By stipulating to the filing of a First Amended Complaint, the
Defendants do not waive any substantive or procedural rights or
defenses it may have to the Plaintiff's claims and allegations.
The parties stipulate and agree that the Plaintiff may file the
attached proposed First Amended Class Action Complaint for Damages.
The Defendants will have thirty (30) days to file and serve its
response to the Plaintiff's First Amended Complaint, which time
period will run from the later of the Court's execution of the
proposed Order, or the Plaintiff's filing and service of the First
Amended Complaint.
Pursuant to the parties' stipulation granting the Plaintiff leave
to file the proposed First Amended Class Action Complaint for
Damages, the Court directed the Plaintiff to file the proposed
First Amended Class Action Complaint for Damages on Aug. 24, 2022.
The Defendants will file and serve their response to the
Plaintiff's First Amended Complaint by Sept. 23, 2022.
A full-text copy of the Court's Order dated Aug. 18, 2022, is
available at https://tinyurl.com/33r8zwhp from Leagle.com.
Edwin Aiwazian -- edwin@calljustice.com -- Tara Zabehi --
tara@calljustice.com -- Travis Maher -- travis@calljustice.com --
Brittany Shaw -- brittany@calljustice.com -- LAWYERS for JUSTICE,
PC, in Glendale, California, Attorneys for the Plaintiff.
IAN A. WRIGHT -- ian.wright@alston.com -- KAITLIN H. OWEN --
kaitlin.owen@alston.com -- ALSTON & BIRD LLP, in Los Angeles,
California, Attorneys for the Defendants.
MOXIELASH INC: Faces Laboy Suit Over Unsolicited Telephone Calls
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GIOVANNI LABOY, individually and on behalf of all others similarly
situated, Plaintiff v. MOXIELASH, INC., Defendant, Case No.
156138902 (Fla. 13th Jud. Cir. Ct., August 25, 2022) is a class
action complaint brought against the Defendant for its alleged
violations of the Florida Telephone Solicitation Act.
According to the complaint, the Defendant sent a telephonic sales
calls to the Plaintiff's telephone number on or after July 1, 2021
in an attempt to solicit the sale of its consumer goods and/or
services. The Defendant's telephonic sales calls allegedly involve
an automated system for the selection or dialing of telephone
numbers or the playing of a recorded message when a connection is
completed. However, the Defendant failed to obtain the Plaintiff's
prior express written consent to receive such automated telephonic
sales calls, says the suit.
Moreover, the Defendant has caused to send the same telephonic
sales calls to consumers without having to secure their prior
express written consent. As a result of the Defendant's unsolicited
telephonic sales calls, the Plaintiff and other similarly situated
individuals were aggrieved. Thus, on behalf of himself and all
other similarly situated individuals, the Plaintiff seeks an
injunction requiring the Defendant to cease all telephonic sales
calls made without express written consent, as well as statutory
damages, reasonable attorney's fees and court costs, and other
relief as the Court deems necessary, the suit alleges.
MoxieLash, Inc. offers diverse selection of magnetic eyeliner for
magnetic eyelash companies. [BN]
The Plaintiff is represented by:
Benjamin W. Raslavich, Esq.
KUHN RASLAVICH, P.A.
2110 West Platt Street
Tampa, FL 33606
Tel: (813) 422-7782
Fax: (813) 422-7783
E-mail: ben@theKRfirm.com
MPZ HOLDINGS: Fails to Pay Proper Wages, Aycock Suit Alleges
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JOHN AYCOCK, individually and on behalf of all others similarly
situated, Plaintiff v. MPZ HOLDINGS, LLC, Defendant, Case No.
3:22-cv-02869-SAL (D.S.C., Aug. 29, 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 Aycock was employed by the Defendant as delivery driver.
MPZ HOLDINGS, LLC owns and operates Marco's Pizza stores. [BN]
The Plaintiff is represented by:
Jeremy R. Summerlin, Esq.
HORTON LAW FIRM, P.A.
307 Pettigru Street
Greenville, SC 29601
Telephone: (864) 233-4351
Facsimile: (864) 233-7142
Email: jsummerlin@hortonlawfirm.net
- and -
James L. Simon, Esq.
LAW OFFICES OF SIMON & SIMON
5000 Rockside Road
Liberty Plaza – Suite 520
Independence, Ohio
Telephone: (216) 525-8890
Email: 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
Email: mike@fradinlaw.com
NEW SCHOOL: Court Dismisses Aubrey Class Suit Without Prejudice
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In the case, COLLYN AHRENS AUBREY, et al., Plaintiffs v. THE NEW
SCHOOL, Defendant, Case No. 21-CV-4915 (KMK) (S.D.N.Y.), Judge
Kenneth M. Karas of the U.S. District Court for the Southern
District of New York grants the Defendant's Motion to Dismiss.
The Plaintiffs bring the putative class action against the
Defendant, alleging that its transition to online classes amid the
Covid-19 pandemic deprived students and parents of students of the
educational experience for which they bargained as students at one
of the Defendant's colleges, Parsons School of Design, giving rise
to breach of contract and unjust enrichment claims.
The Defendant is a private university operating principally in New
York City. It has an endowment greater than $400 million and in
2020 had approximately 10,000 students enrolled in its programs
across its five colleges, one of which is Parsons. At the beginning
of the Spring 2020 term, Parsons had roughly 5,000 students
enrolled in both undergraduate and graduate level courses, and the
cost of tuition for that semester was more than $23,000 per
semester.
As an arts school located in New York City, Parsons, the Plaintiffs
allege, the "places project-based learning at the center of the
educational experience." The school "takes full advantage of its
location and connectivity to global urban centers" by integrating
its curriculum "in the design and arts industries centered in New
York City," which "adds to its prestige and to the value of the
education it offers."
Parsons represents that its students benefit from the experience,
networks, and tutelage of "world-renowned artists, scholars, and
practitioners who lead their industries and academic fields." The
result, the Plaintiffs aver, "is one of the leading schools of
design in the United States."
The Plaintiffs are former Masters of Fine Arts ("MFA") candidates
at Parsons who were set to graduate in either 2020 or 2021. In
early 2020, they began the Spring 2020 normally, but by March 2020,
the Covid-19 pandemic had spread throughout the United States to
the extent that essentially all universities and colleges in the
United States went into lockdown. On March 26, 2020, the Defendant
suspended in-person learning, moved its instruction online to Zoom
and like platforms, and "announced the temporary closure of its
facilities for an indeterminate amount of time."
The Plaintiffs allege dramatic negative impacts on their in-person
projects and education, including their thesis work. For the same
reason, they claim work done on theses work was negatively impacted
as a result of the shift to online instruction. They allege that
they "have incurred substantial damages, in the form of payment of
tuition and in other forms, by reason of Parsons' delay."
According to the Plaintiffs, the transition to online instruction
violated their implied contractual agreement with the Defendant.
They maintain that while online learning may effectively replace
in-person learning for other disciplines, "this is not the case
with art and design." Yet, they also claim they do not complain of
the quality of education Parsons provided, "only of the fact that
the education Parsons promised them was not what Parsons
provided."
The Plaintiffs purport to bring te action both "individually and on
behalf of a class consisting of themselves and all other students
who were enrolled in Parsons for all periods during which the
specific promises regarding their education made to them by the
Defendant were not fulfilled and therefore breached." Thus far,
they have not -- and do not -- seek an order certifying a class
under Rule 23 of the Federal Rules of Civil Procedure.
The Plaintiffs filed their Complaint on June 3, 2021, which was
initially assigned to Judge Failla the next day. On Aug. 9, 2021,
the Defendant filed a pre-motion letter seeking leave to file a
motion to dismiss and either to consolidate the matter with Amable
v. The New School, No. 20-CV-3811 (S.D.N.Y.), pursuant to Fed. R.
Civ. P. 42(a) or to transfer the matter to this Court pursuant to
Rule 13(a)(1) of the S.D.N.Y. Rules for the Division of Business
Among District Judges as related to Amable. The Plaintiffs
responded to this letter three days later, arguing that
consolidation is "premature" and disputing Defendant's arguments
regarding dismissal. On Aug. 30, 2021, Judge Failla ordered the
matter to be transferred to the Court as related to Amable.
The Defendant timely filed the instant Motion and supporting papers
on Nov. 18, 2021. On Jan. 19, 2022, the Defendant filed its Reply.
On April 3, 2022, the Plaintiffs provided notice of supplemental
authority in opposition to the instant Motion. Finally, on April 6,
2022, the Defendants responded to the Plaintiffs' proffer of
supplemental authority and offered additional authority in support
of its Motion.
The Plaintiffs bring the following three claims: (1) breach of
contract concerning restitution, (2) breach of contract concerning
damages, and (3) unjust enrichment. The Defendant argues that the
Plaintiffs have failed to satisfy their pleading standards with
regard to each claim.
As to breach of contract concerning restitution, the Defendant
groups the Plaintiffs' two breach of contract claims together and
argues that both must be dismissed for failure to state a claim as
having failed to plead the existence of articulable and enforceable
promises or breaches thereof. It argues in the alternative that the
Plaintiffs' breach of contract claims must be dismissed as having
failed to suffer cognizable damages, pursuant to the doctrine of
impossibility, and/or under the doctrine of acceptance.
Judge Karas opines that the abstractness or hands-on nature of a
field of study -- an approximation for the degree to which the
course may be more suitable to online learning -- does not bear on
the analysis as to whether there exists an enforceable promise of
in-person educational instruction. He also opines that based on the
Defendant's statements on its website, the Plaintiffs adequately
allege a promise of in-person educational instruction solely via
the statement that the MFA program is "'full time, on-campus' for a
'duration' of two years."
Moreover, lacking specificity or definite language regarding the
mandatory nature of in-person activities or classes, the
Plaintiffs' allegations regarding the Fine Arts Handbook do not
give rise to an implied promise of in-person education. Lastly,
given the broad scope of the disclaimer it is clear that the
Defendant expressly reserved the right to change, relocate, and/or
modify its course offerings. The Defendant's disclaimer "absolves
it from liability under a breach of contract theory specific to
in-person instruction."
Thus, the Defendant's Motion with respect to the Plaintiffs' breach
of contract claims is granted, and such claims are dismissed.
As to unjust enrichment, the Defendant argues that the Plaintiffs'
claim is duplicative of their claims for breach of contract and
must be dismissed. It alternatively argues their claim for unjust
enrichment also fails because they cannot sufficiently plead the
elements of such a claim, namely a lack of enrichment or tortious
conduct.
The Plaintiffs forward two rebuttals: (1) that the existence of an
implied contract is irrelevant because if the contract claim fails,
then the unjust enrichment claim would still allow recovery, and
(2) that the Defendant's argument presumes a requirement -- that
the Plaintiffs had to plead or prove Defendant acted "in bad faith
in exercising its discretion to suspend in-person learning amidst
an unprecedented global pandemic" -- that is not actually
required.
Judge Karas opines that the Plaintiffs' claim for unjust enrichment
is based on the same set of facts and seeks to recover the "value
of enrichment" based on the same tuition and fees as the claims for
breach of contract. Moreover, the Parties do not dispute an implied
contractual agreement exists between them. With these two facts
alone, Judge Karas is persuaded that the relationship between the
Parties is contractual in nature, meaning any unjust enrichment
claim is precluded as duplicative. Hence, the Defendant's Motion
regarding this claim is therefore granted, and the Plaintiffs'
unjust enrichment claim is dismissed.
For the reasons stated, the Defendant's Motion is granted. Because
it is the first adjudication of the Plaintiffs' claims on the
merits, the Complaint is dismissed without prejudice. To the extent
they have a good faith basis for filing an amended complaint, they
must do so within 30 days of the date of the Opinion & Order.
Failure to properly and timely amend will result in dismissal of
the Complaint with prejudice. The Clerk of Court is respectfully
directed to terminate the pending Motion.
A full-text copy of the Court's Aug. 30, 2022 Opinion & Order is
available at https://tinyurl.com/yr7rrwxe from Leagle.com.
Bonnie H. Walker, Esq. -- bonnie.walker@karlinskyllc.com -- Law
Office of Bonnie H. Walker NY, in New York City, Counsel for the
Plaintiffs.
Martin E. Karlinsky, Esq. -- martin.karlinsky@karlinskyllc.com --
Karlinsky LLC, Cornwall-on-Hudson, NY, Counsel for the Plaintiffs.
Jonathan M. Kozak, Esq. -- Jonathan.Kozak@jacksonlewis.com -- Isaac
J. Burker, Esq. -- Isaac.Burker@jacksonlewis.com -- Susan Deegan
Friedfel, Esq. -- Susan.Friedfel@jacksonlewis.com -- Jackson Lewis
P.C., in White Plains, New York, Counsel for the Defendant.
OKTA INC: Labaton Named Lead Counsel in Miami Securities Class Suit
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In the case, CITY OF MIAMI FIRE FIGHTERS AND POLICE OFFICERS
RETIREMENT TRUST, Plaintiff v. OKTA, INC., et al., Defendants, Case
No. 22-cv-02990-SI (N.D. Cal.), Judge Susan Illston of the U.S.
District Court for the Northern District of California grants
Nebraska Investment Council's motion for appointment as lead
plaintiff and for lead counsel.
The instant securities class action alleges Okta and certain of its
current and former senior executives violated Sections 10(b) and
20(a) of the Exchange Act (15 U.S.C. Sections 78j(b), 78t(a)), and
U.S. Securities and Exchange Commission Rule 10b-5 promulgated
thereunder (17 C.F.R. Section 240.10b-5) in connection with a
January 2022 data breach of Okta's security systems by a hacking
group known as Lapsus$. Specifically, the Plaintiffs allege that,
from March 5, 2021 to March 23, 2022, inclusive, the Defendants
failed to disclose Okta's platform had inadequate cybersecurity
controls and Okta initially concealed and subsequently downplayed
the severity of the January 2022 breach.
On Aug. 26, 2022, the Court held a hearing on the motions for
appointment of lead plaintiff and lead counsel. Three movants --
(1) City of Miami Fire Fighters and Police Officers Retirement
Trust (Miami), (2) Kathryn Flynn, and (3) Nebraska -- filed motions
for appointment as lead plaintiff and counsel. However, movants
Miami and Ms. Flynn do not oppose appointment of Nebraska as lead
plaintiff, admitting Nebraska has the "largest financial interest"
at stake in the litigation within the meaning of the Private
Securities Litigation Reform Act of 1995. During oral argument, the
Defendants represented they do not oppose appointment of Nebraska
as lead plaintiff.
Judge Illston appoints Nebraska as the Lead Plaintiff. He says,
Miami properly filed a notice of publication of SEC class action.
The parties also do not dispute Nebraska has the largest financial
interest. Finally, the cause of Nebraska's financial loss is
similar to the cause of financial loss for other plaintiffs in the
class period -- decrease in Okta's stock values. Accordingly,
Nebraska's motion to appoint as lead counsel and appoints Nebraska
as the lead plaintiff is granted.
Nebraska selected Labaton Sucharow LLP to represent them as the
Lead Counsel and Wagstaffe, Von Loewenfeldt, Busch & Radwick LLP as
the Liaison Counsel. Judge Illston finds that Labaton Sucharow LLP
and Wagstaffe, Von Loewenfeldt, Busch & Radwick LLP represent that
their firms have adequate experience in securities actions and have
the resources and financial ability to be lead counsel and liaison
counsel. Accordingly, she approves the lead counsel selection of
Nebraska and grants its motion for appointment of lead and liaison
counsel.
The parties will file a stipulation regarding the schedule for the
filing of an amended complaint and motion practice no later than
Sept. 9, 2022.
Judge Illston denies the remaining motions for appointment as lead
plaintiff and lead counsel.
The Lead Counsel will have the authority to speak for all
Plaintiffs and Class members in all matters regarding the
litigation, including, but not limited to, pretrial proceedings,
motion practice, trial, and settlement. It will make all work
assignments in such a manner as to facilitate the orderly and
efficient prosecution of this litigation, and to avoid duplicative
or unproductive effort.
Additionally, Lead Counsel will have the following
responsibilities: a) to brief and argue motions; b) to initiate and
conduct discovery, including, but not limited to, coordination of
discovery with the Defendants' counsel, and the preparation of
written interrogatories, requests for admissions, and requests for
production of documents; c) to direct and coordinate the
examination of witnesses in depositions; d) to act as spokesperson
at pretrial conferences; e) to call and chair meetings of the
Plaintiffs' counsel as appropriate or necessary from time to time;
f) to initiate and conduct any settlement negotiations with the
Defendants' counsel; g) to provide general coordination of the
activities of the Plaintiffs' counsel and to delegate work
responsibilities to selected counsel as may be required, in such a
manner as to lead to the orderly and efficient prosecution of this
litigation and to avoid duplication or unproductive effort; h) to
consult with and employ experts; i) to receive and review periodic
time reports of all attorneys on behalf of the Plaintiffs, to
determine if the time is being spent appropriately and for the
benefit of the Plaintiffs, and to determine and distribute the
Plaintiffs' attorneys' fees; and j) to perform such other duties as
may be expressly authorized by further order of the Court.
A full-text copy of the Court's Aug. 26, 2022 Order is available at
https://tinyurl.com/yhu227tp from Leagle.com.
OLIN CORP: Court Narrows Indirect Purchasers' Claims in Miami Suit
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In the cases, MIAMI PRODUCTS & CHEMICAL CO., On Behalf of Itself
and All Others Similarly Situated, et al., Plaintiffs v. OLIN
CORPORATION, et al., Defendants. THE TRIPP PLATING WORKS, INC., On
Behalf of Itself and All Others Similarly Situated, et al.,
Plaintiffs, v. OLIN CORPORATION, et al., Defendants, Case Nos.
1:19-CV-00975 EAW, 1:19-CV-00385 EAW (W.D.N.Y.), Judge Elizabeth A.
Wolford of the U.S. District Court for the Western District of New
York grants in part and denies in part the Defendants' motion for
partial dismissal of the amended indirect purchaser complaint.
The instant actions relate to a purported anticompetitive
conspiracy by the Defendants to fix the price of caustic soda in
the United States. The Indirect Purchaser Plaintiffs are New York
corporations that "indirectly purchased Caustic Soda manufactured
by one or more of the Defendants" during the relevant time period.
Indirect Purchaser Plaintiffs The Tripp Plating Works, Inc. and
Finch Paper, LLC bring these putative class actions against
Defendants Olin Corp., K.A. Steel Chemicals, Inc., Occidental
Chemical Corp., Westlake Chemical Corp., Shintech Inc., and Formosa
Plastics Corp., U.S.A., alleging an anticompetitive conspiracy by
Defendants to fix the price of caustic soda in the United States.
On June 24, 2021, the Court entered a Decision and Order granting
in part and denying in part Defendants' motion to dismiss the
Indirect Purchaser Plaintiffs' consolidated class action complaint
(the "June 2021 D&O"). It subsequently modified the June 2021 D&O
solely to permit the Indirect Purchaser Plaintiffs leave to file an
amended complaint.
The Indirect Purchaser Plaintiffs filed their amended consolidated
class action complaint on Aug. 23, 2021. Among other things, the
amended indirect purchaser complaint asserts claims for unjust
enrichment under the laws of Arizona, Florida, Hawaii, Illinois,
Iowa, Maine, Michigan, Minnesota, Mississippi, Nebraska, Nevada,
New Mexico, New York, North Dakota, Oregon, Rhode Island, South
Dakota, Utah, Vermont, West Virginia, and Wisconsin. The amended
indirect purchaser complaint also asserts a claim under the
antitrust law of Connecticut, among other states.
Presently before the Court is a motion filed by the Defendants
seeking dismissal of the Indirect Purchaser Plaintiffs' unjust
enrichment claims under the laws of all states except Hawaii, and
seeking to limit the Indirect Purchaser Plaintiffs' damages under
the Connecticut antitrust statute to conduct occurring after
October 2018.
The Defendants make the following arguments in support of their
motion to dismiss: (1) the Indirect Purchaser Plaintiffs' unjust
enrichment claims under the laws of Florida, Maine, Michigan, and
North Dakota fail because the Indirect Purchaser Plaintiffs are not
alleged to have conferred a direct benefit on Defendants; (2) the
relationship between the parties is too attenuated to support an
unjust enrichment claim under the law of New York; (3) the Indirect
Purchaser Plaintiffs' unjust enrichment claims are impermissibly
duplicative of their statutory claims under the laws of Arizona,
Florida, Illinois, Iowa, Maine, Michigan, Minnesota, Mississippi,
Nebraska, Nevada, New Mexico, New York, North Dakota, Oregon, Rhode
Island, South Dakota, Vermont, West Virginia, and Wisconsin; (4)
the Indirect Purchaser Plaintiffs have not pled an inadequate
remedy at law as required under the laws of Iowa, Minnesota,
Nevada, South Dakota, Utah, and West Virginia; and (5) the Indirect
Purchaser Plaintiffs' antitrust claim under Connecticut law must be
limited to post-October 2018 conduct.
First, the Indirect Purchaser Plaintiffs argue that they "conferred
a benefit on the Defendants that is directly traceable to their
anticompetitive conduct" -- specifically, that their "demand-side
purchases conferred a benefit upon Defendants by enabling them to
profit from their anticompetitive price increases." They further
contend that Defendants are incorrect regarding the requirements of
the laws of Florida, Maine, Michigan, and North Dakota as to the
conferring of a direct benefit.
As to Florida, Judge Wolford holds that the Supreme Court of
Florida has unequivocally stated that "to prevail on an unjust
enrichment claim, the plaintiff must directly confer a benefit to
the defendant." He agrees with the other federal courts that have
concluded that an indirect purchaser has not conveyed a direct
benefit on a defendant as required by Florida law.
Turning to North Dakota, Judge Wolford finds that the Supreme Court
of North Dakota has long held that a plaintiff claiming unjust
enrichment must show that the defendant "obtained a benefit at the
direct expense of the plaintiff." The Indirect Purchaser Plaintiffs
fail to offer any meaningful distinction or to cite any cases
finding the same. He agrees with the Defendants that the Indirect
Purchaser Plaintiffs lack a viable unjust enrichment claim under
the law of North Dakota.
However, Judge Wolford agrees with the Indirect Purchaser
Plaintiffs as to the laws of Michigan and Maine. With respect to
Michigan, federal courts have reached different conclusions
regarding the requirement that a direct benefit be conferred. He
agrees with those courts that have concluded that the relevant case
law shows that "on balance, Michigan at least does not always
require conferral of a direct benefit in order to validly plead a
claim of unjust enrichment." As to Maine, he finds that the Supreme
Judicial Court of Maine held that, to establish an unjust
enrichment claim, the plaintiff must show he conferred a benefit on
the defendant. Judge Wolford accordingly will not dismiss the
Michigan and Maine unjust enrichment claims for failure to allege a
direct benefit.
Next, the Defendants also seek dismissal of the Indirect Purchaser
Plaintiffs' New York unjust enrichment claim, arguing that the
relationship between the parties is too attenuated to support this
cause of action. Judge Wolford does not find this claim amenable to
resolution on the pleadings. The Second Circuit has explained that,
under the law of New York, "the requirement of a connection between
plaintiff and defendant is a modest one: an unjust enrichment claim
will not be supported if the connection between the parties is too
attenuated." There need not be a direct relationship between the
parties. The Indirect Purchaser Plaintiffs seek to assert an unjust
enrichment claim against the Defendants, who are the manufacturers
of the caustic soda at the center of the litigation. Accordingly,
this is no basis for the Court to dismiss the New York unjust
enrichment claim.
Judge Wolford turns next to the Defendants' argument that the
"unjust enrichment claims should be dismissed as duplicative where
statutory claims remain." He is unpersuaded. The claims at issue
are correctly categorized as parasitic of the state law statutory
claims. The Defendants have provided the Court with no briefing on
the individual laws of the 19 states at issue. Instead, they make a
conclusory assertion that the unjust enrichment claims "will rise
or fall with their corresponding statutory claims." Judge Wolford
denies the Defendants' motion to dismiss the parasitic unjust
enrichment claims "without prejudice to consideration of the issue
at a later date on proper briefing."
Next, the Defendants contend that the Indirect Purchaser
Plaintiffs' unjust enrichment claims under the laws of Iowa,
Minnesota, Nevada, South Dakota, Utah, and West Virginia must be
dismissed because the latter have an adequate remedy at law.
Again, Judge Wolford disagrees. As the Indirect Purchaser
Plaintiffs correctly point out, the absence of an adequate remedy
at law is not an element of an unjust enrichment claim in the
relevant jurisdictions. Accordingly, at the pleadings stage, they
were not required to make factually supported allegations showing a
lack of an adequate remedy at law in order to pursue these claims.
The Defendants' final argument is that the Indirect Purchaser
Plaintiffs cannot recover for any damages prior to 2018 under the
antitrust statute law of Connecticut, because Connecticut first
adopted an Illinois Brick repealer statute in October 2018 and that
statute does not apply retroactively (Illinois Brick Co. v.
Illinois, 431 U.S. 720 (1977)). The Indirect Purchaser Plaintiffs
state in a footnote in their response papers that they "do not
contest that their Connecticut antitrust claim should be limited to
post-2018 conduct." Accordingly, Judge Wolford grants this portion
of the Defendants' motion.
For the reasons he sets forth, Judge Wolford grants in part and
denies in part the Defendants' motion for partial dismissal of the
amended indirect purchaser complaint. Specifically, he grants their
motion with respect to the unjust enrichment claims asserted under
the laws of Florida and North Dakota, and with respect to any
pre-October 2018 claim for damages under Connecticut's antitrust
statute, and denies their motion in all other respects.
A full-text copy of the Court's Aug. 26, 2022 Decision & Order is
available at https://tinyurl.com/23rnnfdb from Leagle.com.
ONETOUCHPOINT INC: Fails to Secure Customers' Info, Hays Claims
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VERA HAYS, individually and on behalf of all others similarly
situated, Plaintiff v. ONETOUCHPOINT, INC., Defendant, Case No.
2:22-cv-00977-WED (E.D. Wis., August 25, 2022) is a class action
against the Defendant for negligence, negligence per se, unjust
enrichment, invasion of privacy, breach of confidentiality of
health records, and violation of Wisconsin Deceptive Trade
Practices Act.
The case arises from the Defendant's failure to properly secure and
safeguard the personally identifiable information (PII) of its
customers, including the Plaintiff. The Defendant discovered that
there was unauthorized access to its computer systems beginning on
April 27, 2022, which compromised the private information of its
customers. Despite learning of the data breach in April 2022, the
Defendant did not begin notifying the Plaintiff and Class Members
until on or around July 27, 2022. As a result of the data breach,
the Plaintiff and Class Members suffered ascertainable losses in
the form of losing the benefit of their bargain, incurring
out-of-pocket expenses, the value of their time reasonably invested
to remedy or mitigate the effects of the attack, and the
substantial and imminent risk of identity theft, says the suit.
OneTouchPoint, Inc. is a provider of printing and mailing services
to health insurance carriers and medical providers, with its
principal place of business located at 1225 Walnut Ridge Dr.,
Hartland, Wisconsin. [BN]
The Plaintiff is represented by:
Joseph P. Guglielmo, Esq.
Anja Rusi, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
Telephone: (212) 223-6444
Facsimile: (212) 223-6334
E-mail: jguglielmo@scott-scott.com
arusi@scott-scott.com
- and –
Alfred G. Yates, Jr., Esq.
LAW OFFICE OF ALFRED G. YATES, JR., P.C.
1575 McFarland Road, Suite 305
Pittsburgh, PA 15216
Telephone: (412) 391-5164
Facsimile: (412) 471-1033
E-mail: yateslaw@aol.com
PINDROP SECURITY: Sued Over Unlawful Recording of Voice Prints
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DIANA PACKBIERS, individually and on behalf of all others similarly
situated, Plaintiff v. PINDROP SECURITY, INC., Defendant, Case No.
3:22-cv-04926-LB (N.D. Cal., Aug. 29, 2022) seeks to put a stop to
the Defendant's unlawful use, examination, and recording of the
Plaintiff's and Class members' biometric voice prints in violation
of California Invasion of Privacy Act.
The Plaintiff alleges in the complaint that despite the enactment
of CIPA, the Defendant disregards consumers' statutorily protected
privacy rights and unlawfully uses, records, and examines the
Plaintiff's and the Class members' voices. Specifically, the
Defendant used a system which examines and records the Plaintiff's
and the Class members' "voice prints or voice stress patterns to
determine the truth or falsity of statements made by such other
person" without first obtaining their express written consent, says
the suit.
PINDROP SECURITY, INC. develops and markets security software. The
Company offers a caller identification product that helps detect,
report, and mitigate phone frauds. Pindrop Security serves the
finance and banking industry in the United States. [BN]
The Plaintiff is represented by:
Rafey S. Balabanian, Esq.
EDELSON PC
150 California Street, 18th Floor
San Francisco, CA 94111
Telephone: (415) 212-9300
Facsimile: (415) 373-9435
Email: rbalabanian@edelson.com
PRINCE LIONHEART: Velazquez Files ADA Suit in S.D. New York
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A class action lawsuit has been filed against Prince Lionheart,
Inc. The case is styled as Bryan Velazquez, on behalf of himself
and all others similarly situated v. Prince Lionheart, Inc., Case
No. 1:22-cv-07559 (S.D.N.Y., Sept. 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Prince Lionheart Inc. -- https://princelionheart.com/ -- is a
manufacturer and seller of baby care products and toys for kids and
toddlers in Santa Maria, California.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
RALEY'S: Dempsey Wage-and-Hour Suit Removed to E.D. California
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The case styled JOYCE DEMPSEY, individually and on behalf of all
others similarly situated v. RALEY'S and DOES 1 through 100, Case
No. CV2021-1532, was removed from the Superior Court of the State
of California, County of Yolo, to the U.S. District Court for the
Eastern District of California on August 25, 2022.
The Clerk of Court for the Eastern District of California assigned
Case No. 2:22-at-00896 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California's Business and Professions
Code including unpaid overtime, unpaid meal period premiums, unpaid
rest period premiums, unpaid minimum wages, final wages not timely
paid, wages not timely paid during employment, non-compliant wage
statements, failure to keep requisite payroll records, unreimbursed
business expenses, and unfair business practices.
Raley's is a family-owned American grocery and retail technology
company, headquartered in West Sacramento, California. [BN]
The Defendant is represented by:
Jon D. Meer, Esq.
Paul J. Leaf, Esq.
Justin J. Jackson, Esq.
SEYFARTH SHAW LLP
2029 Century Park East, Suite 3500
Los Angeles, CA 90067-3021
Telephone: (310) 277-7200
Facsimile: (310) 201-5219
E-mail: jmeer@seyfarth.com
pleaf@seyfarth.com
jujackson@seyfarth.com
RUI MGMT: Watterson's Bid for Conditional Certification Granted
---------------------------------------------------------------
In the case, ERIC WATTERSON, on behalf of himself and other
similarly situated, Plaintiffs v. RUI MANAGEMENT SERVICES, INC. and
EVAN REITER, individually, Defendants, Case No. 20-CV-1783
(GRB)(JMW)(E.D.N.Y.), Magistrate Judge James M. Wicks of the U.S.
District Court for the Eastern District of New York grants in part
and denies in part the Plaintiff's motion to conditionally certify
as a collective action under the Fair Labor Standards Act.
Mr. Watterson commenced the action against his former employer, a
debt collection company called RUI and its owner, Reiter, for
alleged violations under the FLSA, 29 U.S.C. Section 201 et seq.
and New York Labor Law. He brings it not only to vindicate his own
rights, but purportedly also on behalf of other current and former
debt collectors at RUI. The alleged violations are failure to pay
minimum wages, failure to pay overtime compensation, and failure to
provide the required wage notices and statements are the claims
asserted.
From February of 2018 to October of 2018, the Plaintiff worked as a
phone operator to collect unpaid bills, or a "debt collector," for
RUI, a company owned and operated by Reiter. Throughout his
employment, he was scheduled to work at least five days per week
(usually Monday to Friday, but sometimes Saturdays and Sundays),
and at least 40 hours each week. His typical hours were 11:53 a.m.
to 9:00 p.m. While his schedule varied, the Plaintiff's shifts were
always nine hours and seven minutes long with a one-hour break. The
Plaintiff alleges that the Defendants failed to pay the applicable
minimum wage rate for all of the hours he worked, failed to pay
overtime wages, and failed to provide annual wage notices and
statements.
The Plaintiff filed the Complaint on April 13, 2020 and, in turn,
the Defendants answered on June 22, 2022. The Plaintiff initially
served a motion for conditional certification upon the Defendants
on July 15, 2020. On July 23, 2020, the Court stayed motions for
conditional certification and class certification pending a
determination of any motion for summary judgment on the merits of
the Plaintiff's individual claims or further order of the Court. It
simultaneously granted the Defendants' motion for bifurcation of
individual discovery and class discovery. Specifically, it directed
the parties to complete discovery as to the Defendants'
compensation policies and the nature of the activities which the
Plaintiff performed, and to complete the Plaintiff's deposition, by
Oct. 28, 2020.
During the limited period of discovery the Plaintiff was deposed,
Reiter was deposed, and three non-parties were deposed: Daniel Sapp
(a former supervisor at RUI), Rebecca White (a supervisor at RUI),
and Michael Russell (Vice President of Operations at RUI). The
Defendants initially filed a motion for summary judgment on April
12, 2021. The case was thereafter re-assigned to Hon. Gary R. Brown
and the Defendants withdrew the motion with leave to renew after
Judge Brown held a pre-motion conference.
On June 30, 2021, the Defendants filed a letter motion for a
pre-motion conference in anticipation of re-filing a summary
judgment motion, and Judge Brown granted the request. The Plaintiff
filed opposition and at the Sept. 20, 2021 motion conference, the
Defendants' summary judgment motion was denied on the record. On
Oct. 12, 2021, Hon. A. Kathleen Tomlinson directed the Plaintiff to
proceed, if still desired, with the anticipated motion for
conditional certification. On Oct. 20, 2021, the Plaintiff filed
the subject motion seeking conditional certification. The
Defendants submitted opposition on Nov. 18, 2021 and the Plaintiff
replied on Dec. 10, 2021. On Aug. 8, 2022, Hon. Gary R. Brown
referred the motion to Judge Wicks to issue a decision.
The Plaintiff requests the Court to conditionally certify the case
as a collective action. He argues that he has met the standard to
show that he is similarly situated to the other debt collectors
that suffered violations of the FLSA by the Defendants' failure to
pay overtime wages and minimum wages due to time shaving. He
further argues that the debt collectors would benefit from prompt
Court-authorized notice, and that equitable tolling should be
applied to all potential opt-in plaintiffs' statute of
limitations.
The Defendants argue that the Plaintiff's evidence is contradictory
and that he cannot meet his burden to show a violation of the FLSA,
and that he has failed to establish the requisite factual nexus
between himself and members of the proposed collective. They
further assert that equitable tolling is inapplicable. They suggest
that if the Court grants conditional certification, the parties
should meet and confer regarding a proposed notice.
With respect to conditional certification, the Plaintiff argues
that even under a modest-plus standard, the action should be
conditionally certified as a collective action because all of RUI's
debt collectors were treated the same way, in that RUI recommended
that they all log in seven minutes or less before their shift start
times in order to have their systems ready and begin calls at the
time their shifts began. He further argues that all debt collectors
were subject to a forty-hour work week and not paid for lunch,
performed the same log-in process before starting work and
compensated based on the same rounding policy, and were required to
have overtime approved in order to be compensated at
time-and-a-half.
The Defendants argue that under the modest-plus standard the
Plaintiff's motion should be denied because he has submitted
contradictory declarations and testimony and no "common proof" that
he or any other employees of RUI were victims of a common policy or
plan that violated the law. They fixate on semantics, arguing that
he first pleaded and submitted a declaration stating that he was
required to work seven minutes before the start of his shift,
versus his deposition testimony where he stated that he and other
debt collectors were requested to clock in seven minutes or less
before the start of their shifts.
Judge Wicks holds that the Plaintiff provides adequate detail for
the Court to conclude that he is similarly situated to other
potential members of a collective consisting of debt collectors.
Based on the information asserted, the Court "may infer that other
debt collectors worked similar shifts for comparable pay, thereby
suffering the same violations of the FLSA." Moreover, "courts do
not require a named plaintiff to show an actual FLSA violation, but
rather that a 'factual nexus' exists between the plaintiff's
situation and the situation of other potential plaintiffs."
Accordingly, the Plaintiff has sufficiently shown that the other
debt collectors at RUI were subject to the same alleged FLSA
violations as the Plaintiff.
As to the notice period, the Plaintiff argues that if the Court
concludes that the three-year statute of limitations should be
applied to notice to the collective, then it should toll this
statutory period from three years from the date the Plaintiff filed
the action, Aug. 13, 2017. He reasons that he initially tried to
move for conditional certification in July of 2020, but that Judge
Sandra J. Feuerstein did not permit the Plaintiff to make the
motion until discovery was completed with respect to him, and so
the tolling should count from that initial application rather than
the date the subject motion was actually filed. He, therefore,
asserts that the potential opt-in plaintiffs' claims should be
tolled for the period the court took to decide the conditional
certification motion.
The Defendants argue that the Plaintiff has not identified rare or
exceptional circumstances to support equitable tolling. They
further argue that because no individuals have filed a written
consent to join the action, the Court cannot determine whether
equitable tolling applies.
Judge Wicks holds that it is appropriate to apply the three-year
statute of limitations under the FLSA as the Complaint alleges
willful conduct by the Defendants. He also agrees that the
Plaintiff has showed extraordinary circumstances resulting from the
litigation delays. However, he says the Plaintiff misplaces his
focus on his own diligence in pursuing the conditional
certification motion. Indeed, he cannot assess whether any
potential opt-in plaintiff diligently pursued their rights because
he has not provided "any information as to potential opt-in
plaintiffs, how they exercised reasonable diligence, and how they
were prevented from exercising their rights." Accordingly, the
Plaintiff's request for equitable tolling is denied without
prejudice to potential opt-in plaintiffs seeking equitable tolling
on a case-by-case basis.
With respect to the Notice, the Plaintiff attaches a proposed
Notice to which Defendant submits multiple objections. Nonetheless,
he has consented to the Defendants' suggestion that the parties be
given a reasonable amount of time to meet and confer regarding the
content of the proposed notice, and that if they have any disputes,
they may seek the Court's intervention. Accordingly, the parties
will meet and confer regarding a proposed notice for the potential
opt-in plaintiffs, including the method for disseminating the
notice. If the parties cannot reach an agreement, they will advise
the Court by Sept. 30, 2022.
Lastly, the Plaintiff requests that the Defendants be ordered to
provide the names and contact information of potential collective
members. Specifically, he seeks a computer-readable list of all
non-managerial Debt Collectors who were employed at RUI owned by
Reiter at any point in the three years prior to the filing of this
lawsuit, along with the following information: name, last known
mailing address, alternate address (if any), all known telephone
numbers, all work e-mail accounts of active employees,
non-work-related e-mail accounts of all potential members and dates
of employment at RUI.
Although the Defendants request the Court to deny the Plaintiff's
motion "in its entirety," they do not explicitly oppose the
Plaintiff's request for the contact information of potential opt-in
plaintiffs. Accordingly, the Plaintiff's request for the
aforementioned contact information of potential collective members
is granted and the Defendants will provide the information, in
computer-readable format, within 21 days of the Order.
For these reasons, (1) the Plaintiff's motion for conditional
certification of the FLSA claim as a representative collective
action pursuant to 29 U.S.C. Section 216(b) is granted; (2) the
Plaintiff's request for the statute of limitations to be equitably
tolled from the date that he filed the action is denied without
prejudice to potential opt-in plaintiffs seeking equitable tolling
on a case-by-case basis; (3) the Plaintiff's request for the
contact information of potential collective members is granted;
and, (4) the parties are directed to meet and confer regarding the
contents and dissemination of the notice and advise the Court by
Sept. 30, 2022, if they cannot reach an agreement as to the
parameters of the notice.
A full-text copy of the Court's Aug. 30, 2022 Memorandum Decision &
Order is available at https://tinyurl.com/5yf4dx5s from
Leagle.com.
Yale Pollack -- ypollack@yalepollacklaw.com -- Jacob Aronauer, Law
Offices of Yale Pollack, P.C., in Syosset, New York, for the
Plaintiffs.
Brendan Sweeney, The Law Office of Christopher Q. Davis, in New
York City, for the Defendants.
RUNWAY TOWING: Fails to Pay Proper Wages, Bavaro Suit Alleges
-------------------------------------------------------------
JOHN BAVARO; RONALD CHAPMAN JR.; JOHN GAMBLE; and NIGEL HUTCHINSON,
individually and on behalf of all others similarly situated,
Plaintiffs v. RUNWAY TOWING CORP.; RUNWAY TOWING & RECOVERY CORP.;
CYNTHIA PRITSINEVELOS; CHRIS PRITSINEVELOS; KEECHANT L. SEWELL, as
Commissioner of the New York City Police Department; VILDA VERA
MAYUGA, as Commissioner of the New York City Department of Consumer
and Worker Protection, New York City Police Department; and NEW
YORK CITY DEPARTMENT OF CONSUMER AND WORKER PROTECTION, Defendants,
Case No. 717940/2022 (N.Y. Sup. Queen Cty., Aug. 29, 2022) is an
action against the Defendant for failure to pay minimum wages,
overtime compensation, provide meals and rest periods, and provide
accurate wage statements.
The Plaintiffs were employed by the Defendants as tow truck
driver.
RUNWAY TOWING CORP. is a transportation, trucking, and railroad
company. [BN]
The Plaintiffs are represented by:
Gary Rosen, Esq.
ROSEN LAW LLC
216 Lakeville Road
Great Neck, NY 11020
Telephone: (516) 437-3400
SANTA MONICA: Unlawfully Records Cellular Communications, Suit Says
-------------------------------------------------------------------
JOHN MAXTON, individually and on behalf of all others similarly
situated v. SANTA MONICA HOTEL OWNER LLC, Case No. 2:22-cv-06279
(C.D. Cal., Sept. 2, 2022) is a class action against the Defendant
for unlawful recording of cellular communications under the
California Penal Code Section 632.7.
Plaintiff John Maxton, individually and on behalf of all others
similarly situated in California, brings this action for damages
and injunctive relief against Santa Monica Hotel, for Defendant's
unauthorized and illegal recordings of conversations with Plaintiff
without any notification or warning to Plaintiff or Class Members,
causing Plaintiff and Class Members damages and invasion of
privacy.
The Plaintiff is a member of the proposed Class consisting of and
defined as follows:
"All persons in California whose inbound and outbound cellular
telephone conversations were recorded by and/or its employees
and/or agent/s within one year prior to the filing of this
action."
Excluded from the Class are:
(1) Defendant, any entity or division in which the Defendant
has
a controlling interest, and their legal representatives,
officers, directors, assigns, and successors;
(2) the Judge to whom this case is assigned and the Judge's
staff; and
(3) those persons who have suffered personal injuries as a
result of the alleged facts.[BN]
The Plaintiff is represented by:
Abbas Kazerounian, Esq.
KAZEROUNI LAW GROUP, APC
245 Fischer Avenue, Unit D1
Costa Mesa, CA 92626
Telephone: (800) 400-6808
Facsimile: (800) 520-5523
E-mail: ak@kazlg.com
SEATIDE FISH: Mendoza Sues Over Delivery Workers' Unpaid OT
-----------------------------------------------------------
JOSE EFRAIN MENDOZA, individually and on behalf of all others
similarly situated, Plaintiff v. SEATIDE FISH & LOBSTER INC. d/b/a
SEATIDE FISH MARKET and PAUL OLIVERI, as an individual, Defendants,
Case No. 1:22-cv-05045 (E.D.N.Y., August 25, 2022) is a collective
action complaint brought against the Defendants to recover damages
for their alleged egregious violations of the Fair Labor Standards
Act and the New York Labor Law.
The Plaintiff has worked for the Defendants from in or around July
2016 until in or around June 2022 as a delivery worker while
performing related miscellaneous duties for the Defendants such as
loading and unloading deliveries.
According to the complaint, the Defendants regularly required the
Plaintiff and other similarly situated delivery workers to work
more than 40 hours per week. Specifically, the Plaintiff regularly
required to work approximately 56 hours each week throughout his
employment with the Defendant. However, although they regularly
worked more than 40 hours per week, the Defendants denied them of
their lawfully earned overtime compensation at the rate of one and
one-half times their regular rates of pay for all hours worked in
excess of 40 per workweek. In addition, the Defendants 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 FLSA and NYLL. Moreover, the Defendants failed to keep
payroll records, failed to provide the Plaintiff with wage
statements upon each payment of his wages, and failed to provide a
written notice of his applicable regular rate of pay, regular pay
day, and all such information, says the suit.
Seatide Fish & Lobster Inc. is a seafood distributor. Paul Oliveri
is the owner of the Corporate Defendant. [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
Tel: (718) 263-9591
SEVENTY SEVEN: W.D. Oklahoma Issues Final Judgment in Snider Suit
-----------------------------------------------------------------
Judge Timothy D. DeGiust of the U.S. District Court for the Western
District of Oklahoma issued an Order and Final Judgment in the
lawsuit captioned CHRISTOPHER SNIDER, on behalf of the Seventy
Seven Energy Inc. Retirement & Savings Plan and a class of
similarly situated participants of the Plan, Plaintiff v.
ADMINISTRATIVE COMMITTEE, SEVENTY SEVEN ENERGY INC. RETIREMENT &
SAVINGS PLAN; et al. Defendants, Case No. CIV-20-977-D (W.D.
Okla.).
On Aug. 18, 2022, the Court held a hearing to determine, among
other things: (1) whether the terms and conditions of the Class
Action Settlement Agreement, dated April 18, 2022, are fair,
reasonable, and adequate and should be approved; (2) whether to
certify this case as a class action for settlement purposes only;
(3) whether a final judgment should be entered dismissing this
Action against Defendants with prejudice; (4) whether to approve
the proposed Plan of Allocation as a fair and equitable method to
allocate the Settlement Fund among all Settlement Class members;
(5) whether and in what amount to award Plaintiff's Counsel
attorneys' fees, costs, and expenses; and (6) whether and in what
amount to award the Plaintiff a Case Contribution Award in
recognition of the time and effort he contributed while
representing the members of the Settlement Class.
The Court finds for the purposes of the Settlement only that the
prerequisites for certification of the Action as a class action
under Fed. R. Civ. P. 23(a) and (b)(1) have been satisfied in this
Action.
Pursuant to Rule 23 and for purposes of Settlement only, the Court
finally certifies this Action as a class action, with the
Settlement Class being defined as:
All persons, except Defendants and their Immediate Family
Members, who were participants in or beneficiaries of the
Seventy Seven Energy Inc. Retirement & Savings Plan, Seventy
Seven Energy LLC Retirement & Savings Plan, Patterson-UTI
Energy, Inc. 401(k) Profit Sharing Plan, and their
Successors-in-Interest (collectively, the Plan) at any time
from July 1, 2014 to February 28, 2021, inclusive (the Class
Period), and whose Plan accounts included any investment in
Chesapeake Energy Corporation at any time during such
period.
Pursuant to Rule 23 and for the purposes of the Settlement only,
the Court appoints Plaintiff Christopher Snider, member of the
Settlement Class, as the representative for the Settlement Class,
and appoints Bailey & Glasser LLP, Izard Kindall & Raabe LLP, and
Latham, Wagner, Steele & Lehman as the Class Counsel for the
Settlement Class.
Pursuant to Rule 23(e), the Court approves and confirms the
Settlement embodied in the Settlement Agreement as being a fair,
reasonable, and adequate Settlement and compromise of the Action
and in the best interests of the Settlement Class. It orders that
the Settlement Agreement will be consummated and fully implemented
in accordance with its terms and conditions. And, because a full
and fair opportunity was accorded to all Settlement Class members
with respect to the Plan of Allocation, the Plan of Allocation is
approved.
The Action is dismissed with prejudice, each party to bear its own
costs, except as provided.
The Court having certified the Action as a non-opt-out class action
under Fed. R. Civ. P. 23(a) and 23(b)(1), Settlement Class members
will be bound by the Settlement.
Class Representative Christopher Snider is awarded $20,000 as a
Case Contribution Award, as defined in the Settlement Agreement, in
recognition of his contributions to the Action, to be paid from the
Settlement Fund in accordance with the Settlement Agreement.
The Plaintiff's Counsel are awarded attorneys' fees in the amount
of 33 1/3% of the gross Settlement Fund to be paid in accordance
with the Settlement Agreement. Accordingly, costs and expenses are
awarded in the amount of $106,855.66, to be paid from the
Settlement Fund in accordance with the Settlement Agreement.
As required by Fed. R. Civ. P. 23(h)(3), the Court has considered
and finds as follows in making this award of attorneys' fees,
costs, and expenses:
a. The Settlement created a gross Settlement Fund of
$15 million in cash, plus interest earned after deposit,
for distribution to the Plan, and numerous Settlement Class
members will benefit from the Settlement pursuant to the
Plan of Allocation;
b. At least 4,563 copies of the Class Notice were sent to
putative Settlement Class members notifying them that
Plaintiff's Counsel would be applying to the Court for up
to one-third of the gross Settlement Fund in attorneys'
fees and costs and expenses up to $240,000;
c. The Class Notice advised Settlement Class members that more
information would be made available on the Settlement
Website;
d. No objections were asserted against the terms of the
Settlement or the proposed Plan of Allocation;
e. The Action involved complex factual and legal issues, was
actively prosecuted and, in the absence of a settlement,
would involve further lengthy proceedings with uncertain
resolution of the complex factual and legal issues;
f. Had the Plaintiff's Counsel not achieved the Settlement
there would remain a significant risk that the Plaintiff
and the class he sought to represent would recover less or
nothing from the Defendants;
g. The Plaintiff's Counsel's fee and expense application
indicates that they devoted over 2,000 hours, with a
lodestar value of $1,280,713, to achieve the Settlement;
and
h. The amount of attorneys' fees, costs, and expenses awarded
by the Court is fair and reasonable and consistent with
such awards in similar cases.
The Court finds the fees, costs, and expenses incurred by the
Settlement Administrator to be just and proper and orders the
Settlement Administrator to be paid in conformity with the
Settlement Agreement.
The Court finds that the Defendants provided notice to all
Attorneys General in compliance with 27 U.S.C. Section 1715(b) more
than 90 days before the entry of the Order and Final Judgment, as
required by Section 1715(d). Court retains jurisdiction for
purposes of implementing the Settlement Agreement and reserves the
power to enter additional orders to effectuate the fair and orderly
administration and consummation of the Settlement Agreement and the
Settlement, as may from time to time be appropriate, and resolution
of any and all disputes arising thereunder.
A full-text copy of the Court's Order and Final Judgment dated Aug.
18, 2022, is available at https://tinyurl.com/2p98as3z from
Leagle.com.
SHOPIFY INC: Bid to Stay Forsberg Suit Over Baton Completion Denied
-------------------------------------------------------------------
In the case, GREGORY FORSBERG, CHRISTOPHER GUNTER, SAMUEL KISSINGER
and SCOTT SIPPRELL, individually and on behalf of all others
similarly situated, Plaintiffs v. SHOPIFY, INC., SHOPIFY HOLDINGS
(USA), INC., SHOPIFY (USA) INC. and TASKUS, INC., Defendants, Civil
Action No. 22-436-VAC-CJB (D. Del.), Magistrate Judge Christopher
J. Burke of the U.S. District Court for the District of Delaware
denies, without prejudice to renew, Shopify's motion to stay the
action in its entirety.
Before the Court in this proposed class action litigation is
Defendants Shopify, Shopify Holdings, and Shopify (USA)'s
(collectively, "Shopify") motion to stay pending completion of
Baton v. Ledger SAS, Case No. 21-cv-2470-EMC (N.D. Cal.), a class
action litigation currently pending in the United States District
Court for the Northern District of California. The Plaintiffs, who
are acting individually and on behalf of a proposed class, oppose
the Motion.
Judge Burke has reviewed the relevant briefing, and heard argument
during a teleconference with the parties held on Aug. 15, 2022.
In Baton, the five individual plaintiffs brought suit against
defendants Ledger SAS, Shopify, Inc. and Shopify USA. The
allegations in Baton were similar to those at issue in the present
case in a number of ways, including that: (1) both cases relate to
a 2020 data breach impacting Ledger SAS cryptocurrency hardware
wallets (which, in turn, were sold via a website operating on
Shopify, Inc.'s platform); and (2) in both cases, the defendants
are alleged to have failed to take various actions that would have
protected the plaintiffs' personal identifying information. There
are some differences between the cases too, including that: (1) the
respective sets of defendants do not entirely overlap; and (2) the
asserted causes of action in the respective operative complaints
differ in some ways.
In November 2021, the Baton Court dismissed the operative complaint
in that case against all defendants for lack of personal
jurisdiction. In doing so, the Baton Court held (as to the two
defendants in that case that are also involved in this matter)
that: (1) it lacked general jurisdiction in California regarding
Shopify USA; (2) it lacked specific jurisdiction over Shopify, Inc.
and Shopify USA; and (3) no jurisdictional discovery would be
permitted. On Dec. 13, 2021, the Baton plaintiffs filed a notice of
appeal to the United States Court of Appeals for the Ninth Circuit;
the Ninth Circuit is considering holding argument on that appeal
sometime during Nov. 14 to 18, 2022. The Plaintiffs filed the
instant suit in the case on April 1, 2022, a few months after the
appellate process in Baton began.
In its briefing on the Motion, Shopify argues that the Court should
stay this case pending the Baton appeal in light of the
applicability of the "first-filed" rule, or, failing that, pursuant
to the three discretionary factors that the Court typically uses to
assess a motion to stay.
Judge Burke disagrees that a stay is warranted now. With regard to
the first-filed rule, normally if two cases are so similar as to
implicate that rule, then principles of comity and efficient
judicial administration suggest that the second-filed case should
be stayed in favor of the first (or transferred to the first-filed
court). But even assuming that the "first-filed" rule applies in
the present suit, this is one of those "rare circumstances" where a
stay of the second case is not appropriate (at least, not now).
The procedural circumstances are unusual enough that the intention
behind the first-filed rule does not really support a stay, at
least at this time. The current status quo in the Baton litigation
is that the case has been dismissed in the Northern District on
personal jurisdiction grounds. More than that, the reasons why the
Baton Court found no personal jurisdiction as to Shopify, Inc. and
Shopify USA will not be dispositive in this case.
So what this all means is that if the Court stayed the case, and
the Ninth Circuit did nothing more than affirm the Baton Court's
decision as to Shopify, Inc. and Shopify USA on the very grounds
that the Baton Court relied upon for dismissal, then the Court and
the parties in the present case would in no way benefit from the
stay. In other words, in that scenario, the Ninth Circuit's
decision would have no impact on the case as to Defendants Shopify
USA, Shopify Holdings or TaskUs, since there is clearly personal
jurisdiction as to those Defendants in Delaware. And that decision
would have no meaningful impact on the case as to Defendant
Shopify, Inc., since the Plaintiffs would still be arguing that
there is general jurisdiction over that the Defendant pursuant to
alter ego/agency rationales -- rationales that the Ninth Circuit
would never have addressed.
Of course, it is possible that there could be other outcomes in the
Ninth Circuit. The Ninth Circuit might, for example, overturn the
Baton Court's decision and send the case back to the Northern
District so that it can proceed forward on the merits as to
Shopify, Inc. and Shopify USA. But if that occurred, then Shopify
could always renew its motion for a stay in the present case.
Moreover, although it is possible that a reversal could happen, it
is notable that none of the parties to this Motion -- i.e., neither
Shopify nor the Plaintiffs -- believe that the Ninth Circuit should
reverse the Baton Court. Shopify obviously believes that the Baton
Court's decision was the correct decision, and that it should be
affirmed on appeal.
For similar reasons, Judge Burke declines to stay the case in light
of the three discretionary stay-related factors. The first of those
factors asks whether the stay will simplify the issues for trial.
And for the reasons he sets out, he cannot see how (absent a Ninth
Circuit reversal, at which point the stay question could easily be
revisited) staying the case in favor of the Baton appeal would
simplify much of anything. The analysis as to the "simplification"
factor is so significant (i.e., in favor of the Plaintiffs'
position) that its impact alone would require denial of the
Motion.
For these reasons, the Motion is denied without prejudice to
renew.
A full-text copy of the Court's Aug. 26, 2022 Memorandum Order is
available at https://tinyurl.com/yyr7zc9t from Leagle.com.
TFORCE FREIGHT: Tappin Suit Moved From E.D. to N.D. California
--------------------------------------------------------------
Chief District Judge Kimberly J. Mueller of the U.S. District Court
for the Eastern District of California transfers the lawsuit
entitled Andrew D. Tappin, Plaintiff v. TForce Freight, Inc.,
Defendant, Case No. 2:22-cv-00322-KJM-DB (E.D. Cal.), to the U.S.
District Court for the Northern District of California.
The putative wage and hour class action is before the Court on
Defendant TForce's motion to dismiss, and motion to stay pursuant
to the first-to-file rule. Plaintiff Tappin opposes both motions
and requests the Court transfers the case to the Northern District
if it finds the first-to-file rule applies.
The Plaintiff filed the putative wage and hour class action in the
Superior Court of the State of California for the County of
Sacramento in November 2021. He alleged unfair business practices
and five violations of the California Labor Code: (1) failure to
provide meal period premiums in violation of sections 226.7 and
512(a); (2) failure to provide rest period premiums in violation of
California's Industrial Welfare Commission wage orders and section
226.7; (3) failure to timely pay wages upon termination in
violation of sections 201 to 203; (4) failure to provide complete
itemized wage statements in violation of section 226(a); and (5)
failure to reimburse business expenses in violation of sections
2802 and 2804.
The Plaintiff brought the action on behalf of all persons employed
by the Defendant as non-exempt employees in California within four
years from filing of the complaint. The Defendant timely removed,
invoking jurisdiction under the Class Action Fairness Act (CAFA).
In January 2022, the Plaintiff filed a representative PAGA action
in Sacramento County Superior Court. The claims in the PAGA action
largely mirror those in the Plaintiff's first complaint, except
that the PAGA case seeks civil penalties.
The Plaintiff's action is the third putative wage and hour class
action filed against the Defendant, following Donyeisha Mish v. UPS
Ground Freight, Inc., No. 21-4094 (N.D. Cal. May 28, 2021) (Mish)
and Victor Gonzalez v. TForce Freight, Inc., No. 22-1177 (C.D. Cal.
Jan. 1, 2022) (Gonzalez), both of which were filed in state court
before the Plaintiff's case and later removed. All three actions
include overlapping claims and seek to represent all non-exempt
workers employed by the Defendant in California.
In February 2022, the parties in Mish and Gonzalez agreed to
transfer the Gonzalez action from the Central District of
California to the Northern District, based on the first-to-file
rule. A month later, the parties in the present case stipulated to
stay the action until 45 days after a scheduled mediation in the
Mish class action because a stay may eliminate or limit the need to
litigate the motions that the Defendant is prepared to file. The
Court granted the stipulation and stayed the case.
In late May 2022, a judge in the Northern District issued an order
relating the Mish and Gonzalez cases and directed the plaintiffs in
both actions to file an amended, consolidated complaint. The
consolidated complaint includes the same six claims as the
Plaintiff's complaint here, plus claims for recovery of unpaid
minimum wages and overtime, Mish v. UPS Ground Freight Inc., No.
21-4094, Consolidated Class Action Compl.
As noted, the Defendant now moves to dismiss, or in the
alternative, stay this action based on the first to file rule. The
Plaintiff argues that if the first-to-file rule applies, the Court
should transfer this case to the Northern District of California
rather than stay it because a stay would cause prejudice.
The first-to-file rule is triggered when two or more related
actions are pending in different courts. Three threshold factors
determine if the rule applies: chronology of the lawsuits,
similarity of the parties, and similarity of the issues (Kohn Law
Grp., Inc. v. Auto Parts Mfg. Miss., Inc., 787 F.3d 1237, 1239-40
(9th Cir. 2015)).
As effective in the case, Judge Mueller notes the rule applies to
support the Defendant's motion only if the instant action was filed
later than the other two, now consolidated actions in the Northern
District and the parties and issues in the two current suits are
substantially similar.
In the case, the Plaintiff agrees the Mish and Gonzalez lawsuits
were filed prior to this case and, thus, the chronology requirement
is satisfied.
Similarity of parties requires all parties in a subsequent action
to be "substantially similar" to the parties in a prior action. But
"exact identity" is not required. Here, TForce Freight is the same
Defendant in all three actions.
The Plaintiff argues that because the named plaintiffs in all three
actions are different and had different job titles and roles, the
parties are dissimilar. However, Judge Mueller notes, the
plaintiffs in all three actions seek to represent all non-exempt
employees, not distinct categories of workers. The different roles
held by the named plaintiffs in Mish and Gonzalez did not preclude
the court from consolidating the cases. This factor also favors
staying or transferring the matter, Judge Mueller holds.
As with the parties, the "issues in both cases" need not be
identical but must be "only substantially similar," determined
primarily by whether there is "substantial overlap." Put
differently, if the question to resolve in the second matter is at
the "heart" of the first matter then the rule applies; but if "the
two actions are distinct" the rule does not apply and the
subsequent suit may proceed, Judge Mueller states. Whether issues
are similar enough is a fact-specific determination, to which
shared defenses and legal questions are relevant.
Judge Mueller finds that both suits involve overlapping or
identical claims and also involve the same or similar legal
standards, questions, facts, discovery and defenses. Specifically,
both actions assert identical violations of California's unfair
competition law, invoking California Business & Professions Code
section 17200, along with at least five of the same violations of
the Labor Code. The distinguishing feature of the consolidated
action is that it includes two additional claims, meaning all of
plaintiff's claims will be addressed in the consolidated action.
While the Defendant asserts the Plaintiff's complaint includes
claims for unpaid minimum wage and overtime, the Court need not
resolve this question to find the issues are substantially
similar.
Judge Mueller also finds that the complaints also share "common
factual issues," including factual allegations regarding many of
the same policies and practices that the plaintiffs allege led to
the violations. The Plaintiff here notes there are "nuanced
differences" between his action and the consolidated action, most
notably the specific alleged violations giving rise to the
overlapping claims. But the test is "substantial similarity," not
exact replication. Hence, this factor is satisfied.
Because the first to file rule applies, the Court has discretion to
transfer in the interest of efficiency and judicial economy, and
finds transfer appropriate here.
The Defendant also requests the complaint be dismissed for failure
to state a claim. Because the Court is transferring all claims
under the first-to-file rule, this motion is moot.
For the reasons discussed, the Court finds the first to file rule
applies and transfers this case to the Northern District.
This order resolves ECF Nos. 9, 17, 18, and 23, and closes the
case.
A full-text copy of the Court's Order dated Aug. 18, 2022, is
available at https://tinyurl.com/mr7ty95n from Leagle.com.
THREE AMINOS: ProImmune Suit Claims Breach of Commercial Contracts
------------------------------------------------------------------
THE PROIMMUNE COMPANY, LLC, derivatively on behalf of INNATE FFAAP
MEDICINE LLC and STRESS WATCHERS OXIDATIVE STRESS TEST METHOD LLC,
and INNATE FFAAP MEDICINE LLC, derivatively on behalf of PROTHIONE
LLC and LIPINOL LLC, Plaintiffs v. LAURA LILE, M.D, and THREE
AMINOS, LLC, Defendants, Case No. 653093/2022 (N.Y. Sup. Ct.,
August 25, 2022) is a class action against the Defendants for
breach of pharmaceutical commercialization agreement, breach of
COVID-19 pharmaceutical license agreement, breach of Innate's
operating agreement, breach of fiduciary duty of loyalty, breach of
fiduciary duty of care, and breach of oxidative stress kit
commercialization agreement.
The case arises from a series of joint ventures between Dr. Albert
Crum, a 90-year-old physician and scientist, and Dr. Laura Lile,
who failed to uphold a series of binding contractual obligations in
the development and commercialization of a health care device and
two pharmaceutical candidates for United States Food and Drug
Administration (FDA) approval. For all these joint ventures, Dr.
Lile and Three Aminos contracted to provide the millions of dollars
in financing necessary to develop the products through FDA approval
and ProImmune contributed the underlying intellectual property
rights and technical know-how. However, not long after signing
these agreements, Dr. Lile and Three Aminos began to default on
their obligations. When Dr. Crum's complaints about the breaches of
contract escalated, Dr. Lile retaliated by excluding Dr. Crum from
participating in the joint ventures as a manager and owner by
withholding important documents. Dr. Crum brings this action to
redress these wrongs and obtain damages to compensate for the
extensive financial harm that Dr. Lile and Three Aminos have
caused, says the suit.
The ProImmune Company, LLC is a manufacturer of nutritional
supplements, with its principal place of business in Rhinebeck,
Dutchess County, New York.
Innate FFAAP Medicine LLC is a biotechnology company with its
principal place of business in Franklin, Tennessee.
Stress Watchers Oxidative Stress Test Method LLC is a limited
liability company with its principal place of business in Franklin,
Tennessee.
Prothione LLC is an innovative pharmaceutical company with its
principal place of business in Franklin, Tennessee.
Lipinol LLC is a limited liability company with its principal place
of business in Franklin, Tennessee.
Three Aminos, LLC is a limited liability company with its principal
place of business in Franklin, Tennessee. [BN]
The Plaintiffs represented by:
Ryan Abbott, Esq.
Kete Barnes, Esq.
BROWN, NERI, SMITH & KHAN LLP
11601 Wilshire Blvd., Suite 2080
Los Angeles, CA 90025
Telephone: (310) 593-9890
E-mail: ryan@bnsklaw.com
kete@bnsklaw.com
TRANSFORM SR: Has Made Unsolicited Calls, Baker Suit Alleges
------------------------------------------------------------
ANDREW BAKER, individually and on behalf of all others similarly
situated, Plaintiff v. TRANSFORM SR BRANDS LLC d/b/a SEARS,
Defendant, Case No. 6:22-cv-01550 (M.D. Fla., Aug. 29, 2022) seeks
to stop the Defendants' practice of making unsolicited calls.
TRANSFORM SR HOLDINGS LLC owns and operates department stores. The
Company offers home merchandise, apparel, and automotive products.
Transform SR Holdings serves customers in the United States. [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
Email: 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
Telephone: (954) 907-1136
Email: JIBRAEL@JIBRAELLAW.COM
TUPPERWARE BRANDS: Edge Suit Moved From S.D.N.Y. to M.D. Fla.
-------------------------------------------------------------
The case styled MICHAEL EDGE, individually and on behalf of all
others similarly situated v. TUPPERWARE BRANDS CORPORATION, MIGUEL
FERNANDEZ, and CASSANDRA HARRIS, Case No. 1:22-cv-04976, was
transferred from the U.S. District Court for the Southern District
of New York to the U.S. District Court for the Middle District of
Florida on August 25, 2022.
The Clerk of Court for the Middle District of Florida assigned Case
No. 6:22-cv-01518-RBD-LHP to the proceeding.
The case arises from the Defendants' alleged violations of Sections
10(b) and 20(a) of the Securities Exchange Act of 1934 by filing
materially false and misleading statements regarding Tupperware's
business, operations, and compliance policies in order to trade
Tupperware securities at artificially inflated prices between
November 3, 2021 and May 3, 2022.
Tupperware Brands Corporation is a consumer products company,
headquartered in Orlando, Florida. [BN]
The Plaintiff is represented by:
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
Thomas H. Przybylowski, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
E-mail: jalieberman@pomlaw.com
ahood@pomlaw.com
tprzybylowski@pomlaw.com
- and –
Lesley F. Portnoy, Esq.
PORTNOY LAW FIRM
1800 Century Park East, Suite 600
Los Angeles, CA 90067
Telephone: (310) 692-8883
E-mail: lesley@portnoylaw.com
TYSON FOODS: Court Denies Freeman's Bid to Compel Doc Requests
--------------------------------------------------------------
Judge P.K. Holmes, III, of the U.S. District Court for the Western
District of Arkansas, Fayetteville Division, denies without
prejudice the Plaintiff's motion to compel in the lawsuit captioned
ANTHONY FREEMAN, Plaintiff v. TYSON FOODS, INC. and TYSON POULTRY,
INC., Defendants, Case No. 5:21-CV-05175 (W.D. Ark.).
Before the Court is Plaintiff Anthony Freeman's motion to compel
certain interrogatories and document requests and brief in support,
as well as Defendants Tyson Foods, Inc.'s and Tyson Poultry, Inc.'s
(collectively, "Tyson") response in opposition.
Earlier in the day, the Court entered an order granting in part and
denying in part Mr. Freeman's separate motion for conditional
certification of an FLSA collective action and for certification of
a Rule 23 class action. The Court has reviewed the briefing and
exhibits concerning Mr. Freeman's motion to compel, and suspects
that many of the issues raised therein might have been mooted by
the order entered earlier on Mr. Freeman's motion for
certification.
However, the Court cannot be certain of the extent to which this is
the case, because all of the briefing on Mr. Freeman's motion to
compel was filed before the Court ruled on his motion for
certification.
Therefore, the Court believes the prudent course of action is to
deny Mr. Freeman's motion to compel without prejudice, and to
direct the parties to meet and confer in good faith on the issues
raised in his motion to compel in light of the Court's order on his
motion for certification. If, after that meet and conferral, any
issues raised in his motion to compel remain unresolved, then Mr.
Freeman may seek Court intervention in a new motion to compel.
Judge Holmes, therefore, ordered that Mr. Freeman's motion to
compel is denied without prejudice. The parties are directed to
meet and confer in good faith regarding the issues raised therein,
in light of the Court's order earlier granting in part and denying
in part Mr. Freeman's motion for certification.
A full-text copy of the Court's Opinion and Order dated Aug. 18,
2022, is available at https://tinyurl.com/mse9phn4 from
Leagle.com.
UTZ QUALITY: Fails to Pay Proper Wages, Diaz Suit Alleges
---------------------------------------------------------
FELIX DIAZ, individually and on behalf of all others similarly
situated, Plaintiff v UTZ QUALITY FOODS, INC.; and UTZ QUALITY
FOODS, LLC, Defendants, Case No. 1:22-cv-07361 (S.D.N.Y., Aug. 29,
2022) is an action against the Defendant for failure to pay minimum
wages, overtime compensation, provide meals and rest periods, and
provide accurate wage statements.
Plaintiff Diaz was employed by the Defendants as delivery worker.
UTZ QUALITY FOODS, LLC manufactures and supplies snack foods. The
Company provides potato chips, pretzels, snacks and assortments,
gift boxes and tins, and chocolate products. Utz Quality Foods
serves customers in the United States. [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
Telephone: (212) 792-0046
Email: Joshua@levinepstein.com
VENTURE EXPRESS: Grant Sues Over Failure to Pay Wages & OT
----------------------------------------------------------
MAVIS GRANT, individually and on behalf of all others similarly
situated, Plaintiff v. VENTURE EXPRESS, INC., Defendant, Case
No.1:22-cv-01177 (W.D. Tenn., August 25, 2022) is a collective
action complaint brought against the Defendant to recover unpaid
wages and other damages as a result of the Defendant's alleged
violations of the Fair Labor Standards Act.
The Plaintiff has worked for the Defendant as a non-exempt employee
at its Jackson, Tennessee terminal for a period within three years
of the date of the filing of this complaint.
According to the complaint, the Defendant failed to pay the
Plaintiff and other similarly situated non-exempt employees for all
hours they have worked. This include the time they spent working
from home on the weekends in which work involved logging in to the
Defendant's compute system and inputting information necessary for
the drivers to be able to complete their loads. As a result,
despite regularly working more than 40 hours per week, they were
deprived of overtime premium at the rate of one and one-half times
their regular rates of pay for all hours worked in excess of 40 per
workweek. In addition, the Defendant failed to maintain accurate
time records of the time their employees have worked, says the
suit.
The Plaintiff seeks compensatory damages for himself and for all
other similarly situated non-exempt employees against the
Defendant, as well as an equal amount of liquidated damages,
reasonable attorney's fees, costs, and expenses, and other relief
as the interests of justice may require.
Venture Express, Inc. provides cargo transportation services. [BN]
The Plaintiff is represented by:
Michael L. Weinman, Esq.
WEINMAN & ASSOCIATES
101 N. Highland Ave.
P.O. Box 266
Jackson, TN 38302
Tel: (731) 423-5565
Fax: (731) 423-5372
E-mail: mike@weinmanthomas.com
VERISMA SYSTEMS: Wins Bid for Judgment on Pleadings in McCracken
----------------------------------------------------------------
Judge Frank P. Geraci, Jr., of the U.S. District Court for the
Western District of New York issued a Decision and Order in the
lawsuit titled ANN McCRACKEN, et al., Plaintiffs v. VERISMA
SYSTEMS, INC., et al., Defendants, Case No. 6:14-CV-6248-FPG-MJP
(W.D.N.Y.):
(1) granting Verisma's motion for judgment on the pleadings;
(2) granting University Defendants' motion for judgment on the
pleadings;
(3) denying as moot the Plaintiffs' cross motion for partial
summary judgment;
(4) denying as moot Verisma's cross motion for summary
judgment; and
(5) denying as moot University Defendants' cross motion for
summary judgment.
Plaintiffs Ann McCracken, Joan Farrell, Sara Stilson, Kevin
McCloskey, Christopher Trapatsos, Kimberly Bailey, and the class
they represent assert claims against University of Rochester,
Strong Memorial Hospital, Highland Hospital (collectively,
"University Defendants") and Verisma (together with University
Defendants, "Defendants") under New York Public Health Law ("PHL")
Section 18, New York General Business Law ("GBL") Section 349, and
New York common law.
The action commenced on May 14, 2014. After numerous extensions of
time for them to respond to the amended complaint, the Defendants
moved to dismiss. The Court granted the University Defendants'
motion, in part, because the amended complaint failed to allege an
injury-in-fact. Insofar as the Defendants had argued that the
amended complaint failed to state a claim, the Court deferred its
ruling until the Plaintiffs filed a second amended complaint.
The Plaintiffs filed their Second Amended Complaint on June 15,
2015, and on Sept. 16, 2015, the Court issued its deferred ruling
denying the Defendants' motions to dismiss for failure to state a
claim. On Sept. 21, 2015, the Defendants filed their respective
answers, and the University Defendants filed a cross claim against
Verisma. Verisma filed an answer to the cross claim on Oct. 13,
2015.
After the issuance of several scheduling and case management
orders, the Plaintiffs sought class certification on Oct. 31, 2016.
In opposing that motion, Verisma sought partial summary judgment.
On May 15, 2017, the Court denied Verisma's motion for summary
judgment, and on July 27, 2017, granted the motion to certify the
class. After motion practice and additional discovery plans and
case management orders were filed, the University Defendants moved
to stay the proceedings on May 30, 2018, which the Court granted on
Sept. 6, 2018, pending resolution of Spiro v. HealthPort Techs.,
LLC, No. 18-1034 (2d Cir. Apr. 11, 2018).
On Nov. 21, 2019, the stay was lifted, but in May 2020, the
Defendants filed a new motion to stay the proceedings filed by
Verisma and the University Defendants joining, which the Court
granted, and then extended in anticipation of the New York State
Court of Appeals' decision in Ortiz v. CIOX Health, LLC, 35 N.Y.3d
1001 (2d Cir. 2020) (accepting certified question).
After Ortiz was decided, the parties entered into a stipulation in
which they agreed that there is no private right of action under
PHL Section 18. Moreover, the parties stipulated that the
Plaintiffs' individual and the certified Rule 23 class claims
asserting violations of PHL Section 18 must be dismissed. However,
despite this mutual understanding as to the nonviability of these
claims, the parties agreed that they cannot simply stipulate to a
dismissal of the PHL Section 18 claims because there is a certified
Rule 23 class and, as such, the claims' dismissal requires Court
approval and potential notice to the class.
Accordingly, the parties agreed to defer the dismissal of the
Plaintiffs' individual and class PHL Section 18 claims until the
parties have addressed the viability of the Plaintiffs' remaining
claims as a matter of law, unless the parties jointly agree to move
for their dismissal at an earlier time.
On Feb. 28, 2022, the Defendants filed separate motions for
judgment on the pleadings. The Plaintiffs filed a cross motion for
partial summary judgment and opposed the Defendants' motions for
judgment on the pleadings. They then separately filed cross motions
for summary judgment.
The Plaintiffs assert that they were overcharged for copies of
their medical records, which they sought from the University
Defendants and were provided by Verisma.
Verisma manages and produces medical records for health care
providers, including the University Defendants. It has contracts
with the University Defendants to: (1) manage their medical
records, (2) respond to requests for medical records, and (3)
produce such records to patients and other qualified persons.
Verisma obtained these contracts by allegedly offering "kickbacks"
to the University Defendants. More specifically, it, acting on
behalf of the University Defendants, would charge the Plaintiffs
more than the actual cost to produce their records, and the
Defendants would split the excess.
Ortiz and Public Health Law Section 18
The Plaintiffs' first cause of action alleges that the Defendants
violated PHL Section 18. PHL Section 18(2)(e) states that health
care providers may impose a reasonable charge for all inspections
and copies of medical records, not exceeding the costs incurred by
such provider and not exceeding seventy-five cents per page. The
New York Court of Appeals, in answering a certified question from
the Second Circuit, concluded in Ortiz v. Ciox Health LLC, 37
N.Y.3d 353, 364 (2021), that there is no private right of action
for violations of PHL Section 18(2)(e).
Verisma notes in its briefing, citing the parties' stipulation,
that all parties have stipulated that the Plaintiffs' first cause
of action alleging a violation of PHL Section 18 must be dismissed,
but does not specifically seek dismissal of such claim at this
time. Similarly, the University Defendants' briefing indicates
that, while the parties have indeed stipulated that the first cause
of action should be dismissed, they have agreed to defer seeking
Court approval for its dismissal until after the Court determines
whether the holding in Ortiz also requires the dismissal of the
Plaintiffs' remaining causes of action. Thus, the University
Defendants' motion addresses only the Plaintiffs' remaining claims
of unjust enrichment and violation of New York General Business Law
Section 349.
Based upon the stipulation and the Defendants' clear indications
that they are not moving for dismissal of the PHL Section 18 claims
at this time due to the possible requirement of Court approval for
dismissal of the class claim, the Court finds that dismissal of the
Plaintiffs' first cause of action for a violation PHL Section 18 is
not properly before the Court at this time. Accordingly, the Court
makes no ruling herein with respect to this claim.
General Business Law Section 349 Claim
The Defendants argue that the Plaintiffs' GBL Section 349 and
unjust enrichment claims should be dismissed because those claims
are dependent upon the Plaintiffs' claim that the Defendants
violated PHL Section 18, for which there is no private right of
action.
The Court agrees that if these remaining claims are wholly reliant
on PHL Section 18, they must be dismissed. But the Plaintiffs argue
that the Second Amended Complaint sets forth allegations to support
these claims independent of PHL Section 18.
Primarily at issue is whether the Second Amended Complaint alleges
that the Defendants' conduct was materially misleading. The
Plaintiffs argue that the Complaint sufficiently alleges a
lucrative and inherently deceptive scheme wherein the Defendants
entered into a business arrangement to build the cost of
"kickbacks" into the amount stated on invoices for the copying of
the Plaintiffs' own medical records and upon payment, the
Defendants split the profits.
Focusing on the alleged misrepresentation, the Plaintiffs argue
that the invoices Verisma provided the Plaintiffs, on behalf of the
University Defendants, were misleading because they listed a fee
and associated number of pages to be copied, but did not disclose
that the Plaintiffs were being charged an inflated cost as part of
the so called "kickback scheme." The Plaintiffs argue that the
invoices misled them into believing that the fees they were paying
were for pages of their own medical records and no others.
Judge Geraci opines that the fact that the invoices charged more
than the actual cost to produce the records cannot serve as a basis
of the deception. Such a claim would circumvent Ortiz's conclusion
that there is not a private right of action for PHL Section 18.
Furthermore, caselaw generally establishes that charging more than
actual cost and generating a profit is not inherently deceptive,
Judge Geraci adds, citing Zuckerman v. BMG Direct Mktg., 290 A.D.2d
330, 330-31 (N.Y. App. Div. 2002).
Therefore, Judge Geraci finds that the claim depends on allegations
that the Plaintiffs were misled about how their fees were used. But
nothing in the Complaint alleges that the Plaintiffs' fees were not
used to offset the cost of producing the Plaintiffs' records. And
because the Court has concluded that claims related to charging
more than actual cost are not viable under New York law, the fact
that the Defendants did not inform the Plaintiffs of how they spent
their excess profit is not a basis for relief. To conclude
otherwise would require businesses to set out in their invoices an
explanation of how they use their profit--which could be, inter
alia, to fund unrelated litigation or make acquisitions.
The only way the Plaintiffs could have been misled to believe that
the Defendants would not use part of their fees to pay for other
business expenses is if they thought that they were paying no more
than the actual cost to reproduce the records--which in turn is
only reasonable in connection with PHL Section 18, Judge Geraci
states. Therefore, Judge Geraci holds that such a theory is
dependent on PHL Section 18 and does not exist independently. Under
the facts of this case, not knowing how each cent is being used is
not the same as being deceived, Judge Geraci points out.
Judge Geraci says the Plaintiffs may feel taken advantage of or
that it is unfair that they subsidized the cost of producing other
people's medical records. But that does not mean they were, or that
they have pled that they were, materially deceived.
Therefore, the Court dismisses the Plaintiffs' GBL Section 349
claim.
Unjust Enrichment Claim
The Plaintiffs argue that the Defendants benefitted from a kickback
scheme and in the form of free records. They assert that the
Defendants benefited at their expense because the Plaintiffs were
unwittingly subsidizing the Defendants' benefits, and that the
"deceptive conduct" they have alleged serves as a basis for an
unjust enrichment claim.
But try as they might to make it something different, the
Plaintiffs' Second Amended Complaint and claim boils down to the
Defendants making a profit, Judge Geraci notes. And that cannot
serve as the basis of an unjust enrichment claim, Judge Geraci
holds.
And without consideration of PHL Section 18, the Plaintiffs make no
allegations that those profits rightly belong to them or that
circumstances existed that would render it inequitable for the
Defendants to keep them, Judge Geraci states.
Therefore, the Court agrees that the Defendants are entitled to
judgment on the pleadings and dismisses the cause of action.
Remaining Motions for Summary Judgment
Because the Court concludes that the Plaintiffs' GBL Section 349
and unjust enrichment claims must be dismissed, the parties'
motions for summary judgment on these claims are denied as moot.
For these reasons, the Defendants' motions for judgment on the
pleadings are granted, the Plaintiffs' cross motion for partial
summary judgment is denied as moot, and the Defendants' cross
motions for summary judgment are denied as moot.
The parties are directed to provide a joint status report regarding
the Plaintiffs' remaining individual claim and class claim under
PHL Section 18 and indicate to the Court how they plan to proceed
with any required notice to the class in order to effectuate
dismissal of those claims.
A full-text copy of the Court's Decision and Order dated Aug. 18,
2022, is available at https://tinyurl.com/2xz652pb from
Leagle.com.
VIBRACOUSTIC USA: Underpays Production Associates' OT, Mata Claims
------------------------------------------------------------------
DONACIANO MATA, individually and on behalf of all others similarly
situated, Plaintiff v. VIBRACOUSTIC USA, INC., Defendant, Case No.
2:22-cv-12000-SJM-JJCG (E.D. Mich., August 25, 2022) brings this
complaint as a collective action against the Defendant for its
alleged unlawful policies and practices that violated the Fair
Labor Standards Act and the Michigan Workforce Opportunity Wage
Act.
The Plaintiff was employed by the Defendant as a Production
Associate from January 2013 until October 2021.
The Plaintiff claims that the Defendant failed to include the shift
differentials or attendance bonuses, which he and other similarly
situated Production Associates have received, when calculating
their overtime pay. As a result, despite working more than 40 hours
per week, the Defendant failed to properly pay their overtime
compensation at the rate of one and one-half times their regular
rates of pay for all hours worked in excess of 40 per workweek, the
Plaintiff says.
On behalf of himself and all other similarly situated Production
Associates, the Plaintiff seeks damages for all unpaid wages,
liquidated damages, attorney's fee and all costs, and other relief
as the Court may deem just and proper.
Vibracoustic USA, Inc. is an automotive NVH expert, providing
customized solutions adding comfort and supporting efficiency,
safety and durability. [BN]
The Plaintiff is represented by:
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Pkwy, Suite 510
Little Rock, AR 72211
Tel: (501) 221-0088
Fax: (888) 787-2040
E-mail: josh@sanfordlawfirm.com
VIVINT INC: Sends Unsolicited Telemarketing Calls, Rainey Alleges
-----------------------------------------------------------------
ETHAN RAINEY, individually and on behalf of all others similarly
situated, Plaintiff v. VIVINT, INC., Defendant, Case No.
3:22-cv-00926-MMH-MCR (M.D. Fla., August 25, 2022) is a class
action against the Defendant for violations of the Telephone
Consumer Protection Act and the Florida Telephone Solicitation
Act.
According to the complaint, the Defendant placed telemarketing cold
calls and text messages on consumers' telephone numbers in an
attempt to promote its smart home products and services. The
Defendant still continued to send telemarketing calls even after
consumers requested not to receive any more telemarketing calls
from or on behalf of the Defendant. As a result, the Plaintiff and
Class members have been harmed in the form of annoyance, nuisance,
and invasion of privacy, occupied their phone lines, and disturbed
the use and enjoyment of their phones, says the suit.
Vivint, Inc. is a company that sells home security and smart home
products and services, headquartered in Provo, Utah. [BN]
The Plaintiff is represented by:
Stefan Coleman, Esq.
COLEMAN PLLC
66 West Flagler Street, Suite 900
Miami, FL 33130
Telephone: (877) 333-9427
Facsimile: (888) 498-8946
E-mail: law@stefancoleman.com
- and –
Avi R. Kaufman, Esq.
KAUFMAN P.A.
237 South Dixie Highway, Floor 4
Coral Gables, FL 33133
Telephone: (305) 469-5881
E-mail: kaufman@kaufmanpa.com
W&M SERVICES: Faces Jimenez Wage-and-Hour Suit in E.D.N.Y.
----------------------------------------------------------
FELIX JIMENEZ, individually and on behalf of all others similarly
situated, Plaintiff v. W&M SERVICES INC. and JOEL "DOE",
Defendants, Case No. 1:22-cv-05061 (E.D.N.Y., August 25, 2022) is a
class action against the Defendants for violations of the Fair
Labor Standards Act and the New York Labor Law including unpaid
minimum wages, unpaid overtime wages, unpaid spread-of-hours
premium, unlawful deductions, and noncompliant recordkeeping and
wage statements.
Mr. Jimenez was employed by the Defendants to work driving and
cleaning school vans at 305 Division Avenue, Brooklyn, New York
from August 23, 2020 until July 29, 2022.
W&M Services Inc. is a fire protection company, headquartered at
305 Division Avenue, Brooklyn, New York. [BN]
The Plaintiff is represented by:
Lina Stillman, Esq.
STILLMAN LEGAL, P.C.
42 Broadway, 12th Floor
New York, NY 10004
Telephone: (212) 203-2417
WAL-MART ASSOCIATES: Gomes Labor Suit Removed to C.D. California
----------------------------------------------------------------
The case styled ROBERT GOMES, individually and on behalf of all
others similarly situated v. WAL-MART ASSOCIATES, INC. and DOES 1
through 100, inclusive, Case No. 22STCV22177, was removed from the
Superior Court of the State of California, County of Los Angeles,
to the U.S. District Court for the Central District of California
on August 25, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 2:22-cv-06051 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to pay overtime wages, failure to pay
minimum wages, failure to provide meal periods, failure to provide
rest breaks, failure to pay all wages upon termination, failure to
provide accurate wage statements, and unfair competition.
Wal-Mart Associates, Inc. is a retail company, headquartered in
Bentonville, Arkansas. [BN]
The Defendant is represented by:
Paloma P. Peracchio, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
400 South Hope Street, Suite 1200
Los Angeles, CA 90071
Telephone: (213) 239-9800
Facsimile: (213) 239-9045
E-mail: paloma.peracchio@ogletree.com
- and –
Mitchell A. Wrosch, Esq.
Alis M. Moon, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
Park Tower, Fifteenth Floor
695 Town Center Drive
Costa Mesa, CA 92626
Telephone: (714) 800-7900
Facsimile: (714) 754-1298
E-mail: mitchell.wrosch@ogletree.com
alis.moon@ogletree.com
WALMART INC: Loses Bid to Dismiss McEnheimer's WPCL & Breach Claims
-------------------------------------------------------------------
In the case, ROBERT McENHEIMER, on behalf of himself and similarly
situated employees, Plaintiff v. WALMART, INC., Defendant, Civil
Action No. 22-46 (W.D. Pa.), Judge W. Scott Hardy of the U.S.
District Court for the Western District of Pennsylvania denies the
Defendant's Motion to Dismiss Counts III and IV of Plaintiff's
Second Amended Complaint.
The Defendant filed a Memorandum in Support of its Motion, the
Plaintiff filed a Brief in Opposition thereto, and the Defendant
filed a Reply.
The Defendant moves to dismiss the Plaintiff's Pennsylvania Wage
Payment and Collection Law ("WPCL") claim at Count IV of the
Plaintiff's Second Amended Individual and Collective/Class Action
Complaint, and his breach of contract claim at Count III of the
SAC, for failure to state a claim upon which relief can be granted
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
The motion is principally based on the argument that the Plaintiff
has not alleged the existence of an express or implied contract
that obligated Defendant to pay a specific category of wages
separate from any statutory obligation
Judge Hardy explains that the WPCL does not create an independent
right to compensation. Rather, it provides a statutory remedy that
is available when an employer breaches a contractual obligation to
pay earned wages. The contract between the parties governs in
determining whether specific wages are earned. Where an employee
does not work under a written employment contract or collective
bargaining agreement, the employee will have to establish the
formation of an implied oral contract to recover under the WPCL.
Judge Hardy notes that such implied oral contract for wages arises
"when parties agree on the obligation to be incurred, but their
intention, instead of being expressed in words, is inferred from
the relationship between the parties and their conduct in light of
the surrounding circumstances." Accordingly, both Counts III and IV
of the SAC necessitate averments that the Defendant breached a
contract between the parties for the payment of wages.
In the case, Judge Hardy holds that the SAC adequately avers facts
which allow the Court to draw a reasonable inference that the
Defendant breached an implied contract to pay wages for all time
spent performing work duties in compliance with Rule 8 of the
Federal Rules of Civil Procedure and applicable precedent.
The Plaintiff also alleges that he and similarly situated employees
were promised payment for all time spent performing work duties,
and that they were assigned and performed these and other duties.
He additionally alleges that he and similarly situated employees
performed their duties during mandatory meal breaks, without being
paid for their work, in breach of agreed upon terms of employment
and in violation of the WPCL. The Defendants, however, contend that
such averments are insufficient to plead a contractual obligation
to pay a specific category of wages separate from any statutory
obligation derived from the Fair Labor Standards Act ("FLSA") or
Pennsylvania Minimum Wage Act ("PMWA").
Judge Hardy disagrees and concludes that the SAC adequately pleads
plausible breach of contract and WPCL claims for the payment of
wages for "all time spent performing the work duties of an Hourly
Associate" during employer-mandated meal breaks, and possibly at
other times too. These claims are based upon the parties' alleged
implied contract and are independent of any statutory entitlement
to compensation. Indeed, the Plaintiff's alleged agreement to be
paid for all time spent performing his work duties may be different
in scope than compensable time pursuant to the FLSA and PMWA.
Accordingly, based on the foregoing, Judge Hardy denies Defendant's
Motion to Dismiss and denies as moot the Plaintiff's Motion for
Leave to File a Sur-Reply and the Plaintiff's Motion, in the
Alternative, for Leave to File Third Amended Complaint.
The Defendant will file an answer to the Plaintiff's SAC by Sept.
9, 2022.
A full-text copy of the Court's Aug. 26, 2022 Memorandum & Order is
available at https://tinyurl.com/2jx9whyr from Leagle.com.
WASHINGTON: Supreme Court Clarifies Tolling Issue in Fowler Suit
----------------------------------------------------------------
In the lawsuit styled MICKEY FOWLER, LEISA MAURER, and a class of
similarly situated individuals, Plaintiffs v. TRACY GUERIN,
Director of the Washington State Department of Retirement Systems,
Defendant, Case No. 100069-3 (certified C15-5367 BHS) (Wash.), the
Supreme Court of Washington reaffirms that Millay v. Cam, 135 Wn.2d
193, 206, 955 P.2d 791 (1998) sets out the necessary and sufficient
conditions for equitable tolling of statutes of limitations in the
civil context under Washington law.
The certified question asks the Supreme Court to clarify the
standards for equitable tolling in civil cases under Washington
law. The underlying federal case involves a long-running dispute
between a certified class of more than 25,000 Washington teachers
and the Department of Retirement Systems (DRS). The federal
district court (U.S. District Court for the Western District of
Washington) determined that while the Teachers have established a
Fifth Amendment takings claim, the applicable statute of
limitations on that claim lapsed several years before the Teachers
filed the suit.
The Teachers have asked the federal district court to apply the
doctrine of equitable tolling to allow the suit to proceed despite
the statute of limitations. Finding Washington law unclear, the
federal district court seeks clarification from this Court as to
the minimum predicates a plaintiff in a civil action must establish
to justify equitable tolling of the applicable statute of
limitations.
Justice Debra L. Stephens, writing for the Panel, states that the
Court answers the certified question by reiterating the four
conditions the Court has previously identified as necessary to
justify equitable tolling of a statute of limitations in the civil
context. Washington law allows equitable tolling of a statute of
limitations in a civil suit when (1) the plaintiff has exercised
diligence, (2) the defendant's bad faith, false assurances, or
deception has interfered with the plaintiff's diligent efforts, (3)
tolling is consistent with (a) the purpose of the underlying
statute and (b) the purpose of the statute of limitations, and (4)
justice requires tolling the statute of limitations, citing Millay
v. Cam, 135 Wn.2d 193, 206, 955 P.2d 791 (1998) (citing Finkelstein
v. Sec. Props., Inc., 76 Wn.App. 733, 739-40, 888 P.2d 161 (1995);
Douchette v. Bethel Sch. Dist. No. 403, 117 Wn.2d 805, 812, 818
P.2d 1362 (1991)).
Background and Procedural History
Plaintiff Teachers--a class comprising more than 25,000 public
school teachers--participate in Washington's Teachers' Retirement
System (TRS), a public retirement system managed by DRS. The
Teachers originally enrolled in TRS Plan 2 accounts, into which
they contributed funds from each paycheck. Their "contributions to
Plan 2 accrued interest at a rate specified by DRS--5.5%,
compounded quarterly"--and "DRS used the quarter's ending balance
to calculate that interest." The Plaintiffs transferred between IRS
Plan 2 and TRS Plan 3 in the late 1990s and contend that they
should have been allocated more interest upon transfer, should have
gotten a higher 'Transfer Payment' based on the additional
interest, and have been deprived of earnings on the lost funds ever
since.
The Teachers first pursued their claims alongside other state
employees in a class action filed in state superior court in 2005
(Probst v. Dep't of Ret. Sys., 167 Wn.App. 180, 183-84, 271 P.3d
966 (2012)). In 2008, the superior court approved a partial
settlement for a subgroup of class members "who had transferred
from Plan 2 to Plan 3 of their respective retirement systems after
January 20, 2002." But the Teachers had transferred before that
date, so Mickey Fowler and Leisa Maurer "became class plaintiffs in
February 2009 when they filed an amended supplemental complaint as
TRS members excluded from the settlement agreement." The Teachers'
suit continued in state court.
The Teachers had some success in the early 2010s when the
Washington State Court of Appeals held that DRS's rule governing
IRS interest calculations was arbitrary and capricious. On remand,
the Teachers argued judgment should be entered in their favor. The
superior court disagreed and remanded the case to DRS for new rule
making, which culminated in a new rule "reaffirming DRS' prior
interest calculation method" issued by Director Tracy Guerin in
April 2018.
In June 2015, while DRS was in the process of promulgating this new
rule, the Teachers filed this separate lawsuit in federal court
"asserting 42 U.S.C. Section 1983 claims for violation of their
Fifth Amendment rights" based on the same facts as their state
claims. The Director moved to dismiss the Teachers' federal lawsuit
under several theories, and the federal district court granted the
Director's motion for summary judgment on the grounds that the
Teachers' takings claim was not ripe while DRS's rule making was
ongoing.
The Teachers appealed to the Ninth Circuit Court of Appeals, which
reversed the grant of summary judgment (Fowler v. Guerin, 899 F.3d
1112, 1118 (9th Cir. 2018)). The Ninth Circuit also rejected the
Director's remaining arguments for summary judgment.
On remand, the federal district court determined that the Teachers
"have established a pecuniary loss and a complete per se takings
claim, as a matter of law." The Director moved to amend her answer
to add a statute of limitations defense, which the court granted.
The Teachers advanced a number of theories to defeat DRS's statute
of limitations defense, and the court concluded that none but
equitable tolling are potentially viable. However, the federal
district court concluded that equitable tolling in civil cases
beyond the traditional predicates is undefined and best addressed
by the Washington Supreme Court. It, therefore, certified a
question to this Court.
In its certification order, the federal district court summarized
its understanding of equitable tolling under Washington law, citing
several cases, including Hahn v. Waddington, 694 F. App'x 494, 495
(9th Cir. 2017).
Judge Stephens notes that finally, the federal district court
addressed the Court's recent decision in In re Pers. Restraint of
Fowler, 197 Wn.2d 46, 479 P.3d 1164 (2021), adopting the federal
habeas standard for equitable tolling in the context of personal
restraint petitions. The federal district court opined that the
analysis in Fowler appears to be consistent with the federal cases
that treat the traditional predicates of equitable tolling as
unnecessary, and therefore differs in part from prior Washington
precedent.
Unsure which standard now applies to equitable tolling in the civil
context, the federal district court proposed certifying a
clarifying question to this Court. The parties agreed that
certification was appropriate and proposed their own versions of
the certified question. The federal district court considered those
alternatives and ultimately certified this question:
Under Washington law, what are the necessary and sufficient
conditions--the minimum predicates--a plaintiff in a civil
action (other than a personal restraint or habeas corpus
petition) must establish to equitably toll the limitations
period otherwise applicable to their claim?
Analysis
The Teachers and the Director agree that equitable tolling in civil
cases may be justified when such relief is consistent with the
purposes of the statute providing the cause of action and the
purposes of the statute of limitations. They also seem to agree
that equitable tolling is allowed only when justice requires. But
the parties disagree on whether a court must consider both the
plaintiff's diligence and the defendant's bad faith, false
assurances, or deception in deciding whether equitable tolling of
the statute of limitations is appropriate in a civil case.
The Director maintains that both predicates are necessary to
justify equitable tolling in the civil context. The Director relies
primarily on Millay, arguing that for over twenty years, Washington
courts have consistently applied the rule articulated in Millay,
retaining the Court's requirements of diligence by the plaintiff
and bad faith, false assurances, or deception by the defendant. The
Director explains that state courts have had no problem discerning
and applying the rule in Millay, even while federal courts applying
Washington law have sometimes seemed confused.
Judge Stephens holds that the Director is correct that Washington
courts have consistently understood Millay to articulate the
Washington law standard for equitable tolling in civil cases. The
Director argues that a departure from the traditional predicates
for equitable tolling in civil cases identified in Millay "would
unsettle long-held principles promoting finality and preventing
stale claims, and would contradict this Court's admonition that the
doctrine of equitable tolling should be used 'sparingly.'"
The Court says it has followed the standard set out in Millay
because it appropriately balances the demands of justice against
the important principles underlying statutory limitation periods.
By requiring that equitable tolling be consistent with the purpose
of the underlying statute and statute of limitations, the Millay
standard ensures that equitable relief does not contradict the
public policy announced by a coordinate branch of government. By
requiring the plaintiff to pursue their claims diligently, the
Millay standard protects settled expectations and guards against
unfair surprise and the loss of important evidence. And by allowing
equitable tolling upon a showing that the defendant engaged in bad
faith, false assurances, or deception, the Millay standard properly
recognizes that a defendant should lose the benefits of finality
provided by statutes of limitation only when that defendant has
engaged in conduct that justifies making an exception, Judge
Stephens points out.
For their part, the Teachers argue that Millay should not be read
as announcing the Washington standard for equitable tolling in
civil matters--even though Washington courts have read Millay that
way for over 20 years. The Teachers maintain that this Court
actually adopted the general common law that federal courts apply
to questions of equitable tolling in the civil context in
Douchette. They describe this federal common law of equitable
tolling "as part of traditional equity jurisprudence and [as
having] a flexible, case-by-case approach that addresses the
specific circumstances of each case, rather than imposing rigid,
inflexible rules" (citing Smith v. Davis, 953 F.3d 582 (9th Cir.
2020) (en banc)). Because "nothing in Millay shows an intent to
explicitly or implicitly overrule Douchette or the common law
concerning equitable tolling," the Teachers argue, this general
common law continues to control Washington law on equitable tolling
in the civil context.
Judge Stephens opines that the Teachers' reliance on Douchette is
misplaced. There, the Court considered whether the statutes of
limitations applicable to state and federal claims for age
discrimination should be equitably tolled. Although it noted that
federal cases provide helpful analysis in determining whether the
statute of limitations should be tolled, the Court clarified that
the case did not involve filing requirements under the Age
Discrimination in Employment Act of 1967, 29 U.S.C Section 621
(1976)," and, therefore, was not controlled by those federal cases.
The Court did not identify--nor did it adopts--any federal or
general common law rules governing equitable tolling.
The Teachers further misapprehend the Court's decision in Douchette
by arguing that it stands for two distinct lines of authority
regarding equitable tolling in civil actions, Judge Stephens points
out. Yet the Teachers identify no Washington authority supporting
the equitable tolling of a statute of limitations without some
evidence that the plaintiff was diligent in the pursuit of their
claim.
Nothing in the Court's opinion in In re Fowler suggests the
adoption of a new civil standard, Judge Stephens notes. The Court's
holding rests exclusively on state and federal cases involving
personal restraint and habeas petitions. Rather than focusing on
the traditional elements of equitable tolling, the Court
highlighted its inherent authority to grant a timely filed motion
to extend the time limit to file a habeas-style challenge to a
conviction, including the authority, under appropriate
circumstances, to equitably toll the statutory time limit for such
challenges, Judge Stephens explains.
The certified question effectively asks whether the Court's
decision in In re Fowler modifies the four-part Millay standard for
equitably tolling a statute of limitations in a civil action. The
Court's answer is that it does not. The four-part standard set
forth in Millay remains the standard for equitable tolling of
statutes of limitations in civil actions under Washington law.
Washington courts must evaluate each part of this standard in light
of the particular facts of each case and should equitably toll the
applicable statute of limitations only when all four parts of the
Millay standard are satisfied.
Conclusion
The Court reaffirms that Millay sets out the necessary and
sufficient conditions for equitable tolling of statutes of
limitations in the civil context under Washington law. A plaintiff
seeking equitable tolling of the statute of limitations in a civil
suit must demonstrate that such extraordinary relief is warranted
because (1) the plaintiff has exercised diligence, (2) the
defendant's bad faith, false assurances, or deception interfered
with the plaintiff's timely filing, (3) tolling is consistent with
(a) the purpose of the underlying statute and (b) the purpose of
the statute of limitations, and (4) justice requires tolling the
statute of limitations.
Judge Stephens opines that this standard appropriately balances the
plaintiff's interest in seeking justice against the individual and
societal interest in finality and the protection of defendants
against unfair surprise and stale claims. The Court reiterates that
equitable tolling of statutes of limitations in civil cases is
appropriate only where these principles align. Any lesser standard
would substitute for a positive rule established by the legislature
a variable rule of decision based upon individual ideas of
justice.
A full-text copy of the Court's Opinion dated Aug. 18, 2022, is
available at https://tinyurl.com/3f38nsse from Leagle.com.
David Frank Stobaugh, Stephen Kolden Strong, Alexander Strong,
Bendich Stobaugh & Strong PC, 126 Nw. Canal St., Ste. 100, in
Seattle, Washington 98107-4970, Counsel for the Plaintiff(s).
Robert Bertelson Mitchell, Jr. -- rob.mitchell@klgates.com -- Todd
Lawrence Nunn -- todd.nunn@klgates.com -- Christopher M. Wyant --
Christopher.Wyant@klgates.com -- K&L Gates LLP, 925 4th Ave., Ste.
2900, in Seattle, Washington 98104-1158, Peter B. Gonick --
peter.gonick@atg.wa.gov -- Washington Attorney General's Office, P.
O. Box 40100, in Olympia, Washington 98504-0100, Counsel for the
Defendant(s).
XL AUTO: Quintero Sues Over Unpaid Overtime for Store Managers
--------------------------------------------------------------
ALEX QUINTERO, individually and on behalf of all others similarly
situated, Plaintiff v. XL AUTO PARTS, LLC, D/B/A XL AUTO PARTS,
Defendant, Case No. 3:22-cv-01883-M (N.D. Tex., August 25, 2022) is
a class action against the Defendant for its failure to pay
overtime wages in violation of the Fair Labor Standards Act.
The Plaintiff has been employed by the Defendant as a store manager
from 2017 until the present.
XL Auto Parts, LLC is an operator of an automobile parts
distribution enterprise, headquartered in Dallas County, Texas.
[BN]
The Plaintiff is represented by:
Charles L. Scalise, Esq.
Daniel B. Ross, Esq.
ROSS-SCALISE LAW GROUP
1104 San Antonio Street
Austin, TX 78701
Telephone: (512) 474-7677
Facsimile: (512) 474-5306
E-mail: Charles@rosslawpc.com
- and –
Steven R. Samples, Esq.
SAMPLES AMES PLLC
460 W. Harwood Rd.
Hurst, TX 76054
Telephone: (214) 308-6505
Facsimile: (855) 605-1505
Asbestos Litigation
ASBESTOS UPDATE: GMS Inc. Faces 38 Pending PI Suits as of July 31
-----------------------------------------------------------------
GMS Inc. and certain of its subsidiaries have been the subject of
claims related to alleged exposure to asbestos-containing products
they distributed prior to 1979, according to the Company's Form
10-Q filing with the U.S. Securities and Exchange Commission.
The Company states, "Since 2002 and as of July 31, 2022,
approximately 1,037 asbestos-related personal injury lawsuits have
been filed, and we vigorously defend against them. Of these, 988
have been dismissed without any payment by us, 38 are pending and
only 11 have been settled, which settlements have not materially
impacted our financial condition or operating results."
A full-text copy of the Form 10-Q is available at
https://bit.ly/3RL70ze
ASBESTOS UPDATE: Judge Grants NICO's Dismissal of Legal Action
--------------------------------------------------------------
A Nebraska federal judge has granted National Indemnity Co.
(NICO)'s motion to dismiss Global Reinsurance Corporation of
America from an action in which NICO seeks a ruling that its
reinsurers are obligated to pay billings for an underlying
settlement of asbestos exposure claims filed against the State of
Montana.
Judge Brian C. Buescher of the U.S. District Court for the District
of Nebraska granted NICO’s motion without prejudice on Sept. 2.
NICO insured the State of Montana under a policy effective between
1973 and 1975.
ASBESTOS UPDATE: Kroger Faces Suit Over Asbestos Handling
---------------------------------------------------------
Patrick Keck, writing for sj-r.com, reports that poor handling of
renovations at a Taylorville Kroger exposed shoppers and workers to
asbestos, a lawsuit filed by Illinois Attorney General Kwame Raoul
alleges against the Kroger Company and SSI Services LLC.
According to the lawsuit, SSI contracted with Kroger to conduct
renovations at the 201 East Bidwell St. store starting last month.
It was SSI's task to remove 39,500 square feet of floor tile
containing asbestos material and it had notified the Illinois
Environmental Protection Agency of its work.
The issue with the activities came after a citizen complaint was
filed on July 29, when broken floor tile and asbestos-containing
material were reportedly still hanging from the ceiling.
EPA arrived on the scene the same day and said containment of the
material was "inadequate." This is in-part due to the material not
being properly wetted, which prevents the particles from dropping
before disposal.
Illinois EPA Director John J. Kim said his office then contacted
the Attorney General's Office, which filed the lawsuit Monday in
the Fourth Judicial Circuit Court.
"We are committed to ensuring the store is properly remediated
prior to reopening for the safety of the employees and customers,"
Kim said in a released statement.
Since the EPA inspection, the Taylorville Kroger has been sealed to
the public. The Attorney General's lawsuit requests it remains
closed. The state also asks the court to order the defendants to
remediate all asbestos contamination in accordance with state and
federal laws and regulations before the store is reopened.
Any presence of asbestos, discovered in chipped floor tiles left
behind at the store according to the lawsuit, is a public health
concern as inhalation can lead to lung cancer and mesothelioma. For
those who smoke, research from the National Cancer Institute
indicates asbestos exposure can be increasingly hazardous.
Depending on the action from the court, Kroger and SSI could face
civil penalties of up to $50,000 for each violation and an
additional $10,000 for subsequent days the violation continues.
*********
S U B S C R I P T I O N I N F O R M A T I O N
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Copyright 2022. All rights reserved. ISSN 1525-2272.
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