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C L A S S A C T I O N R E P O R T E R
Tuesday, October 4, 2022, Vol. 24, No. 192
Headlines
ABM INDUSTRIES: Bucio & Martinez v. ABM Janitorial Suit Resolved
ALPHA WASTE: Rojas, et al. Seek OT Premiums Under FLSA, NYLL
AMERICAN EXPRESS: Faces Lawsuit for Racial Discriminatory Policies
AMTRUST FINANCIAL: $13MM Class Settlement to be Heard on Nov. 16
APHRIA INC: Court Sets Nov. 24 Class Action Opt-Out Deadline
ATLANTIC RICHFIELD: Holiday Gets Leave to File First Amended Suit
AURORA CANNABIS: Court Dismisses Securities Suit Without Prejudice
AUSTRALIA: Faces Huge Class Action Over NDIS Age Exclusions
AXOS FINANCIAL: Awaits Final Approval of Mandalevy Case Settlement
AXOS FINANCIAL: Final Hearing on BofI Securities Suit Deal on Oct 7
BARCLAYS PLC: Faces North Miami Securities Suit Over ADR Price Drop
BELLUS HEALTH: Court Dismisses Cachia Suit Over Securities Fraud
BP EXPLORATION: Bid for Summary Judgment in Dean B3 Case Granted
BP EXPLORATION: Court Excludes Cook's Expert Testimony in Wade Suit
BUILD-A-BEAR WORKSHOP: Settlement Discussions Ongoing in TCPA Suit
CALIFORNIA STATEWIDE: Cooley Petitions for Writ of Certiorari
CANADA: Black Claimants Face Trauma Amid Class Action Lawsuit
CASH EXPRESS: Faces Class Lawsuit Over Customers' Data Breach
CHEMBIO DIAGNOSTICS: Ordered to File Settlement Papers By Oct. 17
DELTA PACKING: Barbosa, et al., Seek to Certify Three Classes
DEUTSCHE BANK: Agrees to Settle Investors' Suit for $26.25-M
DISCOVERY INC: Collinsville Police Sues Over Market Price Drop
DISH NETWORK: Fails to Pay Proper Wages, Calderon Alleges
DIVERSANT LLC: Fails to Pay Project Managers' OT Wages Under FLSA
DOCUSIGN INC: Collins v. DocuSign Inc. Voluntarily Dismissed
DOCUSIGN INC: Weston v. DocuSign Inc. Pending in N.D. Calif.
DOUYU INT'L: Class Settlement to be Heard on Dec. 1
EL BANDIDO: Fails to Pay Proper Wages Acevedo Suit Alleges
EVOLENT HEALTH: $23.5MM Class Settlement to be Heard on Nov. 18
EXPRESS INC: Summary Judgment Motions Pending in Chacon's 2nd Suit
FLOWERS FOODS: Court Tosses O'Bryant Suit in Favor of Arbitration
GC PIZZA: Bid for Partial Declaratory Summary Judgment OK'd in Part
GENENTECH INC: Court OKs Stipulation on Class Certification
GOLDEN NUGGET: Eschbach Sues for Breach of Fiduciary Duties
GOLI NUTRITION: Mislabeled Ashwagandha Gummies, Caputo Suit Says
GOTOGATE INC: Faces Bent Suit Over Improper Flight Cancellation
HALIFAX HEALTH: Zadneprovskaya Files Suit in Fla. Cir. Ct.
HARVARD BUSINESS: Johnson Files Suit in W.D. Michigan
HAYMOUNT URGENT: Hassett Files Suit in D. Connecticut
HERCULES FORWARDING: Pempek Sues Over Failure to Pay Overtime Wages
HP INC: Twardzik Appeals Case Dismissal to 3rd Cir.
IDEANOMICS INC: Court Dismisses Lundy v. Ideanomics Inc., et al.
IDEANOMICS INC: Rudani Suit Settlement Gets Final Court Approval
IDEANOMICS INC: Timios Files Insurance Claim After Class Suit Deal
IMPAC MORTGAGE: Files Notice of Class Cert. in Maryland Action
IMPAC MORTGAGE: Final Hearing on Class Action Set for Dec. 5
INOVIO PHARMACEUTICALS: $30MM Class Deal to be Heard on Dec. 15
INTERACTIVE EDUCATION: Court Moves Class Cert Hearing to Oct. 31
INTRUSION INC: $3.25MM Settlement to be Heard on Nov. 30
J2 GLOBAL: Espy Appeals Securities Suit Dismissal to 9th Cir.
JA SOLAR: Appeals Relief From Judgment Ruling in ODS Suit
JACKSONVILLE UNIVERSITY: Senior Files ADA Suit in S.D. New York
JEFFERIES FINANCIAL: Barnes Suit Asserts Breach of Fiduciary Duties
KADENZO ENTERPRISES: Sisson Sues Over Dump Truck Drivers' Unpaid OT
KEDRION BIOPHARMA: Bannister Files Suit in E.D. New York
KELLOGG CO: Judge Dropped Customer's Suit After Unreasonable Claims
KEN J. CHOU: Chou Files Suit in Cal. Super. Ct.
KEVIN SZABO JR PLUMBING: Burns Files FLSA Suit in N.D. Illinois
KIA AMERICA: Faces Ballis Suit Over Defective Hyundai Vehicles
KIA AMERICA: McNerney Files Bid for Transfer and Consolidation
KONINKLIJKE LUCHTVAART: Sued Over Misleading Marketing Practices
LIDL US LLC: August Files Suit in E.D. New York
LILY'S SWEETS: Gamez Files Suit in C.D. California
LINCOLN HILLS, WI: Youth Prison Report Released After Settlement
LINCOLN LIFE: Court Sets Oct. 17 Class Action Opt-Out Deadline
LOUISIANA: Prelim. Injunction Bid in Alex A. v. Edwards Denied
LOVISA AMERICA: California Court Grants Bid to Dismiss Brooks Suit
LOWE'S HOME: Court Grants Bid to Compel Arbitration in Johnson Suit
MARRIOTT OWNERSHIP: Suit Seeks to Certify Interest Owner Class
MAVERICK EXTERIORS: Billhorn Declaration Stricken in Gonzalez Suit
MDL 2777: Facebook Appeals Ruling on Bid to Dismiss Wilkinson Suit
MDL 3001: Google Appeals Ruling on Bid to Dismiss Andrews Suit
META PLATFORMS: Sued Over Violation of Medical Privacy
META PLATFORMS: Willis Sues Over Interception of Browsing Activity
METROPOLITAN LIFE: McHugh Suit Removed to C.D. California
MGM RESORTS: Scherer Sues Over Unlawful Taxing of Players
MIGNON FAGET: Dicks Files ADA Suit in S.D. New York
MIJ INC: Price Sues Over Failure to Pay Proper OT Compensation
MMM CONSUMER BRANDS: Gomez Suit Removed to M.D. Florida
MOSQUITO SQUAD: Lenorowitz's Bid for Class Certification Granted
MY PILLOW: Deutsch Seeks to Certify Class of Call Center Reps
NATIONAL BASKETBALL: Discloses Subscribers' Info, Salazar Alleges
NCB MANAGEMENT: Smith Files FDCPA Suit in E.D. Pennsylvania
NELNET SERVICING: Ballard Files Suit in D. Nebraska
NELNET SERVICING: Hegarty Files Suit in D. Nebraska
NELNET SERVICING: Spearman Files Suit in D. Nebraska
NETFLIX INC: Bids to Dismiss City of East St. Louis Suit Granted
NEW SOUTH WALES: Sydney Residents Sue for Construction Damages
NEW YORK STATE POLICE: Whyte Sues Over Pregnancy Discrimination
NEW YORK, NY: Court Grants Chalmer Suit Class Certification Bid
NSH PORT WASHINGTON: Shadwick Sues Over Failure to Pay Proper Wages
NV5 INC: Richardson Sues Over Failure to Pay Overtime Compensation
OGDEN CITY: Wheelwright Appeals Case Dismissal to 10th Cir.
OLO INC: Pompano Beach Sues Over Decline in Shares Market Value
ONETOUCHPOINT INC: Saffo Sues Over Failure to Protect PII and PHI
OOMA INC: Awaits Court's Class Cert. Ruling in Zanin Trademark Suit
OPHTHOTECH CORP: $9M in Attys.' Fees & Costs Awarded in Micholle
OPPENHEIMER & CO: 6694 Dawson Blvd Suit Dismissed w/out Prejudice
OZ MANAGEMENT: Certification of Rule 23 Class Sought
PELOTON INTERACTIVE: Bid to Dismiss Securities Litigation Pending
PELOTON INTERACTIVE: Files Bid to Dismiss Hialeah/Deulina Action
PLAINFIELD PIZZA: Schneider Files FLSA Suit in N.D. Illinois
PNC BANK: Lyons Appeals Dismissal Ruling in Consumer Credit Suit
PROFESSIONAL FINANCE: Baumann Files FDCPA Suit in D. Colorado
PRUDENT FIDUCIARY: Third Scheduling Order Entered in Ahrendsen
QUANTA SERVICES: Laliberte Sues Over Breach of Fiduciary Duties
RAY KLEIN: Class Settlement in Russell Suit Gets Final Approval
REBBL INC: Roffman Sues Over Beverages' Misleading Protein Claims
RED ROBIN: Mina Appeals TCPA Suit Dismissal to 10th Circuit
RESEARCH STRATEGIES: Duverger Class Suit Dismissed w/o Prejudice
REV GROUP: Securities Suit Final Settlement Payment Paid in 1Q 202
ROB BONTA: Welchen Suit Wins Partial Summary Judgment
ROCHESTER INSTITUTE: Bergeron Seeks to Certify Two Classes
SAMSUNG ELECTRONICS: Fails to Secure Customers' Info, Clark Claims
SAMSUNG ELECTRONICS: Gelizon Sues Over Failure to Safeguard PII
SBGA INC: Jumper Sues Over Failure to Pay Proper Compensations
SCRIPPS HEALTH: Court Stays Franklin Suit Pursuant to Landis
SERVICE FIRST: Webb Files Suit in Cal. Super. Ct.
SESEN BIO: No Final Approval Yet of Securities Suit Settlement
SHARP CHULA: Underwood Sues Over Unpaid Minimum, Overtime Wages
SHREVEPORT, LA: Partial Final Judgment in Pernici Suit Reversed
SIGNATUREMD INC: Wins Summary Judgment Bid in Derossett TCPA Suit
SIMM ASSOCIATES: Linkenberg Files FDCPA Suit in S.D. New York
SMITH & WESSON: Court Extends Certification Motion in Toronto Suit
SMITH & WESSON: Faces Workers' Suit in Mass. Over Unpaid Wages
SNAPCHAT INC: Agrees $35M Settlement Over Biometric Law Violations
STANDARD FIRE INSURANCE: Norman Files Suit in C.D. Illinois
STATE FARM MUTUAL: Stevens Suit Removed to C.D. California
SUNOCO PARTNERS: Seeks Stay Pending Sup. Ct. Appeal Ruling in Cline
SW MANAGEMENT: Tieppoa Sues Over Failure to Pay Overtime Wages
T-MOBILE US: Agrees to Pay $350M Settlement in Data Breach Suit
TESLA INC: Mallow Files Sues Over Vehicles' Deceptive ADAS Feature
TEXAS HEALTH: Shull Sues to Recover Back and Overtime Wages
TEXTRON INC: $7.9MM Class Settlement to be Heard on Nov. 18
TLMVACO LLC: Montoya Sues Over Unpaid Overtime Wages
TRIUMPH PROTECTION: Santos Files Suit in Cal. Super. Ct.
TRUSTEES OF BOSTON UNIVERSITY: Senior Files ADA Suit in S.D.N.Y.
TWITTER INC: $809.5MM Class Settlement to be Heard on Nov. 17
UGI CORP: $10.25MM Class Settlement to be Heard on Nov. 30
UNILEVER: Little Sues Over Dangerously High Levels of Benzene
UNITED STATES: FBI Agents Sued for Unreturned Safe Deposit Boxes
US FINANCIAL: Loses Bid to Dismiss Bumpus' Relief and UCL Claims
VACO LLC: Hunter Sues to Recover Unpaid Wages
VANGUARD GROUP: Davidoff Files Suit in E.D. New York
VERINT SYSTEMS: CTI Litigation Parties Reach Settlement Agreement
VIRGINIA: Courts Tries to Rule Against Special Education Lawsuit
WALTER KIDDE: North Carolina Court Narrows Claims in Taylor Suit
WASHINGTON: $2.15-Mil. in Attorneys' Fees Awarded in D.S. v. DCYF
WELLDYNERX LLC: Perkins Files Suit in M.D. Florida
WEST WIND: Fails to Pay Proper Wages, Buck Suit Alleges
WEXFORD HEALTH: Surles Sues to Recover Unpaid Overtime Wages
WIND YOUTH SERVICES: Billings Files Suit in Cal. Super. Ct.
YATSEN HOLDING: Maeshiro Files Securities Class Suit in N.Y.
YELP INC: $22.25MM Class Deal to be Heard on Jan. 19
YEXT INC: Court Appoints Lead Plaintiff & Counsel in Menzione Suit
YUMA REGIONAL: Faces Collins Class Action Suit Over Data Breach
ZERO DAY NUTRITION: Gamez Files Suit in C.D. California
ZILLOW INC: Connecticut Court Narrows Claims in Demetres Class Suit
ZUMIEZ INC: Wins Final Approval of $2.8MM Herrera Suit Settlement
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*********
ABM INDUSTRIES: Bucio & Martinez v. ABM Janitorial Suit Resolved
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ABM Industries Inc. disclosed in its Form 10-Q filing for the
quarterly period ended July 31, 2022, filed with the Securities and
Exchange Commission on September 9, 2022, that the consolidated
cases of Bucio and Martinez v. ABM Janitorial Services that was
pending in the San Francisco Superior Court has now been resolved.
The consolidated cases of Bucio and Martinez v. ABM Janitorial
Services filed on April 7, 2006, pending in the Superior Court of
California, County of San Francisco (the "Bucio case"), was a class
action lawsuit that alleged ABM failed to provide legally required
meal periods and make additional premium payments for such meal
periods, pay split shift premiums when owed, and reimburse janitors
for travel expenses. There was also a claim for penalties under the
California Labor Code Private Attorneys General Act ("PAGA").
On July 7, 2021, the Company entered into a class action settlement
and release agreement to settle the Bucio case for $140 million and
to obtain a release of the certified class claims that were
asserted in the Bucio case. The settlement also resolved the PAGA
claim. The release of the certified class claims covered the time
period from April 7, 2002, through April 30, 2013. The release of
the PAGA claim covered the time period from November 15, 2005,
through July 18, 2021.
Final approval of the class settlement, approval of Plaintiffs'
counsels' request for attorneys' fees, and judgment was entered by
the court on April 7, 2022. A full description of the class action
has been included by the Company in its prior filings, most
recently in its quarterly report on Form 10-Q for the quarter ended
on January 31, 2022, filed on March 9, 2022.
On April 20, 2022, the Company paid to a third-party settlement
administrator $143.8 million for the Bucio settlement, of which
$142.9 million was previously recorded within other current
liabilities, and recorded $0.9 million of related expense in
"Selling, general and administrative expenses" in its unaudited
Consolidated Statements of Comprehensive Income for the nine months
ended July 31, 2022. The Company recorded $112.9 million and $142.9
million of related expense in "Selling, general and administrative
expenses" in its unaudited Consolidated Statements of Comprehensive
Income during the three and nine months ended July 31, 2021,
respectively.
On April 29, 2022, employees who are a part of the settlement were
mailed payments by the third-party settlement administrator based
on the number of pay periods they worked. In addition, a payment to
California's Labor Workforce and Development Agency to resolve the
PAGA claims was sent on April 29, 2022.
ABM Industries Incorporated is a provider of integrated facility
solutions based in New York.
ALPHA WASTE: Rojas, et al. Seek OT Premiums Under FLSA, NYLL
------------------------------------------------------------
ROLANDO ROJAS and EVA BATEN BATEN, on behalf of themselves, FLSA
Collective Plaintiffs, and the Class, v. ALPHA WASTE SOLUTIONS,
LLC, and GEORGI MARTE, Case No. 1:22-cv-07938 (S.D.N.Y., Sept. 16,
2022) seeks to recover unpaid overtime premiums, unpaid overtime
wages, statutory penalties, liquidated damages and attorney's fees
and costs pursuant to the Fair Labor Standards Act and the New York
Labor Law.
In addition to the alleged Defendants' willful violations of the
FLSA and NYLL, the Defendants also willfully filed fraudulent
information regarding Plaintiffs and Class members with the
Internal Revenue Service when they filed their legally mandatory
annual Form 940 and quarterly Form 941 without including wages paid
to employees, in violation of 26 U.S.C. section 7434.
The Plaintiffs further allege that Defendants breached their
contract with Plaintiffs and Class members by failing to pay
employer payroll taxes for Plaintiffs and Class members, as
required by the Federal Insurance Contribution Act.
Corporate Defendant operates a commercial kitchen cleaning service
going by the trade name "Alpha Waste," whose services include
kitchen hood cleaning, grease trap cleaning, fire suppression,
cooking oil recycling, janitorial cleaning services, duct
installation, mold/fire/water restoration, kitchen equipment
cleanings, and precipitator cleaning, repairs, and installations
for restaurants and food-related businesses throughout the state of
New York.[BN]
The Plaintiffs are represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, Eighth Floor
New York, NY 10011
Telephone: (212) 465-1180
Facsimile: (212) 465-1181
AMERICAN EXPRESS: Faces Lawsuit for Racial Discriminatory Policies
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Jon Brown published in Fox Business that three more plaintiffs have
joined a class-action lawsuit filed in August 2022 alleging that
American Express Subjected White employees to "racially
discriminatory" policies that fostered a hostile work environment.
"Since the filing of this lawsuit my firm has been inundated with
calls from former and current Amex employees from all around the
country who read the allegations of the complaint and couldn't
believe how accurately they described their own experiences with
the company," attorney David Pivtorak told FOX Business.
On Aug. 23, Pivtorak filed a class action on behalf of former Amex
employee Brian Netzel and potentially thousands of other similarly
situated employees following what the complaint described as "an
avalanche of bad things coming to White people in that company once
George Floyd was killed."
The lawsuit alleges that Amex implemented "anti-racism" policies
throughout its corporate structure in the wake of Floyd's death
that "gave preferential treatment to individuals for being Black
and unambiguously signaled to White employees that their race was
an impediment to getting ahead in the company."
In an amended complaint, three new class representative plaintiffs
allege discrimination similar to that which Netzel described.
Netzel told FOX Business at the time his complaint was filed that
Amex's racial policies flooded the workplace with "a tremendous
amount of animosity." He alleged White employees were unfairly
punished or passed over for promotions, while some Black employees
were promoted merely to meet racial quotas, and that some felt
empowered to "root out in McCarthy-era fashion people who didn't
agree with this overall philosophy."
In his original complaint, Netzel alleged that his female manager,
who is Black, would "aggressively harass and berate White
employees" and that Amex was not only aware of her behavior but
provided financial incentives to executives to reduce the number of
White employees.
One of the new plaintiffs, who resides in a different city than the
original plaintiff, claims to have been subjected to racial
harassment and discrimination from that same manager. Another
alleges to have been harassed and denied a promotion on racial
grounds by a different manager. All three of the new plaintiffs say
they were forced to resign from well-paying positions in the
company to escape its racially toxic environment.
"It's hard to put into words how racially toxic that working
environment must have been, from top to bottom, where you can just
hear it in these people's voices. I only hope that more employees
come forward to challenge these abhorrent practices because that is
how we will finally bring the wrongdoers to justice," attorney
Pivtorak said.
Amex did not provide comment on the amended complaint but denied
the claims of the original suit, with a spokesperson telling FOX
Business at the time: "The allegations made about our company in
the lawsuit are false and without merit. We have a longstanding
commitment to living our company values, including fostering a
diverse and inclusive culture where all colleagues can thrive."
"Advancement, hiring, and compensation within our company are based
solely on individual qualifications, business, and leadership
performance. Any claim to the contrary is wrong, and we do not
provide any incentive for behaviors that discriminate against or
favor any group of employees," the spokesperson added.
Amex has faced previous allegations of discrimination. Nick
Williams, a White male who served eight years as a manager of
business development at Amex until he was suddenly let go in March
2021, turned down a six-figure settlement offer after refusing to
sign paperwork forbidding him from speaking out against the credit
card behemoth.
In 2021, five current and former employees told FOX Business on
condition of anonymity that the company engaged in "reverse
discrimination" against White employees and steeped the workplace
in the tenets of critical race theory. Amex categorically denied
the accusations at the time. [GN]
AMTRUST FINANCIAL: $13MM Class Settlement to be Heard on Nov. 16
----------------------------------------------------------------
SUMMARY NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
To: ALL PERSONS WHO PURCHASED AMTRUST FINANCIAL SERVICES, INC.
PREFERRED STOCK ON A U.S. OPEN MARKET DURING THE CLASS PERIOD
JANUARY 22, 2018, THROUGH JANUARY 18, 2019 ("CLASS PERIOD"), BOTH
DATES INCLUSIVE.
Notice is given pursuant to Rule 23 of the Federal Rules of Civil
Procedure and an Order of the United States District Court for the
Southern District of New York that Lead Plaintiff Jan Martínek, on
behalf of himself and the Class, and AmTrust Financial Services,
Inc., Barry D. Zyskind, George Karfunkel and Leah Karfunkel
("Defendants") have reached a proposed settlement of the action
titled Martínek v. AmTrust Financial Services, Inc., et al., No.
19 Civ. 8030 (KPF) (the "Action") in the amount of $13,000,000,
which if approved will resolve the Action in its entirety (the
"Settlement"). In entering into the Settlement, Defendants deny
all charges of wrongdoing or liability alleged in the Action, and
deny that Lead Plaintiff or the Class suffered damages.
A hearing will be held at 3:00 p.m. on November 16, 2022, before
the Honorable Katherine Polk Failla at the United States District
Court for the Southern District of New York, Thurgood Marshall U.S.
Courthouse, 40 Foley Square, New York, NY 10007 (the "Settlement
Hearing"), to determine (1) whether the Court should approve: (a)
the proposed Settlement as fair, reasonable, and adequate; (b) the
Plan of Allocation of Settlement funds as fair, reasonable, and
adequate; (c) the request by the lawyers representing the Class for
attorneys' fees, for the reimbursement of their expenses, and for a
Plaintiff Award to Lead Plaintiff, and (2) whether the Court should
dismiss the Action with prejudice, as provided in the Settlement.
The Court may change the hearing date, or order that it be held by
telephonic or video conference, without further notice to the
Class. However, any changes will be posted on the Settlement
Website: www.AmTrustPreferredStockLitigation.com.
If you purchased AmTrust preferred stock on a U.S. open market
between January 22, 2018, and January 18, 2019, inclusive, you may
be a Class Member and your rights may be affected by this
Settlement. You may obtain, free of charge, a detailed Longform
Notice of Proposed Class Action Settlement (the "Notice") and a
copy of the Proof of Claim form on the Settlement Website, or by
contacting the Claims Administrator, AmTrust Preferred Stock
Litigation, A.B. Data, Ltd., at P.O. Box 173022 Milwaukee, WI 53217
or at 1-877-354-3878 (Toll Free) or at
info@AmTrustPreferredStockLitigation.com. All capitalized terms not
defined herein, are defined in the Notice. Please note that the
Class definition (defined in the Notice) does not include
purchasers of solely AmTrust common stock or notes.
If you are a Class Member and wish to share in the Settlement
proceeds, you must complete and submit a Proof of Claim Form and
required supporting documentation to the Claims Administrator
establishing that you are entitled to recovery so that it is
postmarked, or submitted online at the Settlement Website, by
December 13, 2022. If you fail to submit a valid Proof of Claim
Form and supporting documentation by this deadline in accordance
with the instructions in the Form and Notice, you will not recover
from the Settlement, but you will nevertheless be bound by the
Settlement and releases provided for therein and by the Court's
final judgment dismissing the Action with prejudice.
If you are a Class Member but wish to exclude yourself from the
Class, you must submit a written request for exclusion in
accordance with the instructions set forth in the Notice so that it
is received no later than October 26, 2022. If you properly
exclude yourself from the Class, you will not be bound by any
judgments or orders entered by the Court in the Action, whether
favorable or unfavorable, and you will not be eligible to share in
the Settlement proceeds.
If you are a Class Member and wish to object to any aspect of the
Settlement, the Plan of Allocation, or any of Counsel's requests,
you must submit your written objection in the manner set forth in
the Notice so that it is received no later than October 26, 2022.
Only Class Members who have submitted valid and timely written
objections and provided notice of their intent to appear in
accordance with the instructions in the Notice will be entitled to
be heard at the Settlement Hearing.
Inquiries, other than requests for the Notice, may be made to the
attorneys for the Class:
Carl L. Stine, Esq.
Wolf Popper LLP
845 Third Avenue
New York, New York 10022
Tel.: (212) 759-4600
cstine@wolfpopper.com
PLEASE DO NOT CONTACT THE COURT, THE CLERK'S OFFICE, DEFENDANTS, OR
THEIR COUNSEL REGARDING THIS NOTICE.
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
APHRIA INC: Court Sets Nov. 24 Class Action Opt-Out Deadline
------------------------------------------------------------
Have you suffered a loss on your investment in Aphria common shares
which you purchased in 2018?
The Ontario Superior Court of Justice has granted leave pursuant to
the Ontario Securities Act and has certified a global securities
class action which permits a defined group of investors (the
"Class") to pursue claims against Aphria Inc. and certain of its
Officers and Directors ("Aphria Defendants"). It is alleged that
the Aphria Defendants made material misrepresentations to the
market about two significant international transactions during 2018
and that public disclosure about these acquisitions on December 3
and 4, 2018 caused the price of Aphria's common shares to fall
substantially, resulting in investor losses.
The certified class action is Vecchio Longo Consulting Services
Inc. v. Aphria Inc. et al. Ontario Superior Court of Justice Court
File No. CV-19-0061408600 CP (the "Class Action"). It claims
monetary damages on behalf of the Class.
The allegations made in the Class Action have not been proven and
are disputed by the Aphria Defendants.
NOTE: Claims in this Action against Carl Merton were dismissed, on
consent, without costs by Court Order on August 6, 2021 and claims
against Clarus Securities Inc., Canaccord Genuity Corp., Cormark
Securities Inc., Haywood Securities Inc. and Infor Financial Inc.
were dismissed, on consent, without costs, by Court Order on August
18, 2022.
Who is a Class Member?
The Action has been certified on behalf of all persons or entities,
wherever they may reside, who acquired Aphria common shares during
the period of time after 07:00 ET January 29, 2018 until 08:25 ET
December 3, 2018 ("Class Members").
This includes those individuals who acquired Aphria shares in the
secondary market (that is, in usual course on the open market via a
stock exchange like the TSX or the NYSE or an over the counter
exchange), as well as those who acquired their shares by way of
Aphria's Prospectus Offering in June 2018.
If you are an eligible Class Member and the Class Action is
successful you may be entitled to share in any monetary award or
settlement.
If you wish to participate in the class action, DO NOTHING.
As a Class Member, you will not be required to pay any costs in the
event that the Class Action is unsuccessful. If the Class Action is
successful at trial or if a settlement is reached, you may be
entitled to share in any award or settlement. A notice would be
provided to the Class providing details concerning the terms of the
settlement or award and how eligible Class Members might make a
claim for compensation.
Class Members who DO NOT want to participate in the Action must opt
out.
If you do not wish to participate in the Class Action, and be bound
by or receive any benefits from it, you must opt out by notifying
RicePoint Administration Inc. by November 24, 2022 at:
Aphria Securities Class Action
c/o RicePoint Administration Inc.
P.O. 3355
London, ON N6A 4K3
Further Information
For additional important information regarding the Class Action,
including how to opt out:
Visit https://www.rochongenova.com
1-866-881-2292 (Toll-free Canada)
416-363-1867
Contact Class Counsel via e-mail at:
Joel P. Rochon – Rochon Genova LLP
121 Richmond Street West, Suite 900
Toronto, ON M5H 2K1
Email: contact@rochongenova.com
The publication of this notice was authorized by the Superior Court
of Justice of the Province of Ontario.
DO NOT CONTACT THE COURT REGARDING THIS NOTICE.
ATLANTIC RICHFIELD: Holiday Gets Leave to File First Amended Suit
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In the case, CHANELL HOLIDAY, et al., Plaintiffs v. ATLANTIC
RICHFIELD COMPANY, et al., Defendants, Cause No.
2:16-CV-525-JVB-JPK (N.D. Ind.), Judge Joshua P. Kolar of the U.S.
District Court for the Northern District of Indiana, Hammond
Division, grants the Plaintiffs' Motion for Leave to File First
Amended Class Action Complaint with Individual Claims.
The matter is before the Court on the Plaintiffs' Motion for Leave.
On Aug. 23, 2021, presiding District Judge Joseph S. Van Bokkelen
granted the Defendants' dispositive motions and dismissed the
complaint in its entirety, but permitted the Plaintiffs to file a
motion to amend the complaint. Oral argument was heard on April 28,
2022.
The proposed amended complaint names six Defendants: E.I. Dupont de
Nemours and Co.; the Chemours Co.; Hammond Group, Inc.; Hammond
Lead Products, LLC; Halstab, LLC; and Halox, LLC (collectively, the
"Hammond Defendants"). The general allegations are similar to those
in the prior complaint.
The Defendants allegedly owned or purchased lead refineries and
other manufacturing facilities in East Chicago, Indiana. The 251
plaintiffs were all residents of the nearby West Calumet Housing
Complex or students at the nearby Carrie Gosch Elementary School.
The Plaintiffs allege that, at various times between 1910 and 1985,
the companies introduced contaminants (including lead, arsenic, and
other substances) into the air, soil, and/or groundwater. This
caused them to suffer an increased risk of a variety of illnesses,
as well as severe emotional distress. Some have already developed
illnesses allegedly caused by the contaminants.
The Defendants failed to warn the Plaintiffs about the
contamination. The Plaintiffs were unaware of the contamination and
had no reason to know about it until July 25, 2016, when East
Chicago Mayor Anthony Copeland sent a letter to the Complex's
residents, informing them that the ground within the Complex was
highly contaminated with lead and arsenic.
In their prior complaint, the Plaintiffs brought claims of strict
liability, negligence, intentional infliction of emotional
distress, and negligent infliction of emotional distress. In
dismissing that complaint, Judge Van Bokkelen determined as
follows:
a. Based on the Plaintiffs' allegations, they did not learn
about the danger posed by the contamination until July 25, 2016,
and therefore the lawsuit would not be dismissed for failure to
file within the applicable limitations period;
b. With regard to the negligence claims, a property owner who
processes hazardous materials on its land owes a duty not to
contaminate neighboring property;
c. Although the Plaintiffs had alleged they were exposed to
contaminants, they had not sufficiently alleged injury, as was
required to sustain negligence and strict liability claims;
d. The Plaintiffs had not sufficiently alleged that the
Defendants acted with the intent to harm them emotionally, as
required for a claim of intentional infliction of emotional
distress.
Judge Van Bokkelen permitted the Plaintiffs to file this motion to
amend the complaint.
The Plaintiffs now seek to bring class action allegations. They
propose a "medical monitoring class" of plaintiffs who resided at
the Complex or attended the Carrie Gosch Elementary School, and a
"bodily injury class" of plaintiffs with current illnesses caused
by the contaminants. They also bring individual claims of
negligence, negligent infliction of emotional distress, and a
separate cause of action for medical monitoring.
First, some Defendants argue that the facts of the case have not
changed, so the Plaintiffs should have pled any "new" details in
their previous complaint, or when the motions to dismiss apprised
them of the inadequacies. While that would have sped things up, "a
formal motion for leave to amend was not necessary at the Rule
12(b)(6) stage, and the Plaintiffs were entitled to wait and see if
any pleading problems the court might find could be corrected."
Consistent with Seventh Circuit precedent favoring the resolution
of cases on the merits, Judge Van Bokkelen explicitly directed that
they should be allowed to ask for another chance to amend the
complaint. Having reviewed the record, Jdge Kolar does not believe
that the Plaintiffs were sandbagging, or that the proposed
amendment reflects a lack of diligence warranting denial of the
motion to amend.
Second, the Defendants argue that the Plaintiffs' class action
allegations cannot satisfy the requirements of Federal Rule of
Civil Procedure 23 and should be denied as futile. Attempts to
evaluate class allegations at the pleading stage are "generally
regarded as premature because the shape and form of the class is to
be given time to evolve through discovery." However, a court can
strike class allegations from pleadings "where a complaint is so
facially lacking that no amount of discovery or time could provide
support for class status for the claims pleaded."
Judge Kolar declines to address the arguments regarding Rule 23. He
opines that the Plaintiffs' amended complaint will be different
from what they are proposing. They will not be permitted to proceed
on a separate cause of action for medical monitoring, and only
those plaintiffs with present physical injuries will be permitted
to proceed with negligence claims. Any analysis of the class
allegations should be based on the revised complaint. He takes no
position on whether these arguments would be properly considered at
the pleading stage.
Third, the Plaintiffs again attempt to bring negligence claims
based on the Defendants' failure to protect from contamination the
land where Plaintiffs lived or attended school. "Prevailing on a
negligence claim requires fulfillment of three elements: 1) duty
owed to plaintiff by the defendant; 2) breach of duty by allowing
conduct to fall below the applicable standard of care; and 3)
compensable injury proximately caused by defendant's breach of
duty." Judge Van Bokkelen rejected arguments by various Defendants
that the Plaintiffs had not properly alleged duty, breach, and
causation, but found that they had not adequately alleged injury.
The Plaintiffs' negligence claims depend on whether their revised
allegations state a cognizable injury. They allege that each of the
251 named plaintiffs "has experienced and/or suffered an increased
risk" of 34 different physical injuries. Of the 251, 181 allege no
present physical injury. The remaining 70 allege some form of
present physical injury linked to the contaminants.
Judge Kolar first considers the Plaintiffs who have not alleged a
present physical injury. He opines that the Plaintiffs have fleshed
out these allegations, by describing the potential injuries in more
detail, but they have not resolved the problem Judge Van Bokkelen
identified, nor pointed to any new authority that compels a
different result. As to the negligence claims of the plaintiffs not
suffering a present physical injury, Judge Kolar finds that the
proposed amendment is futile, and those claims will not be
permitted to proceed.
In so finding, he remains mindful of the Seventh Circuit's
direction that leave to amend be liberally granted to cure
procedural deficiencies. If it seemed that the Plaintiffs had
sustained present injuries and had not yet pled them due to an
honest belief that it was not necessary, the situation might be
different. However, Judge Van Bokkelen's opinion clearly explained
that the Plaintiffs needed to allege injury, not just exposure, and
granted them ample time to do so.
Given how long the Plaintiffs have had to gather evidence of
injury, it appears that these plaintiffs have not sustained present
physical injuries from the contamination, or cannot support such
allegations in their complaint. The deficiencies are substantive,
not procedural, so there is no cause to allow the Plaintiffs who
have not alleged a physical injury to re-plead based on the same
theory.
The remaining 70 plaintiffs allege a present physical injury caused
by the contamination. The Hammond Defendants argue that there are
no specific allegations linking each plaintiff's injuries to the
contamination, so the allegations are "nothing more than that those
Plaintiffs have medical conditions of some kind." But at the
pleading stage, all that is needed are facts supporting a plausible
inference that these plaintiffs developed these illnesses at least
in part from the exposure to contaminants.
Judge Kolar's review indicates that 67 of the 70 plaintiffs allege
they have at least one of these ailments. Those plaintiffs, he say,
have adequately alleged injury, and can be permitted to proceed
with negligence claims. The allegations as to three plaintiffs are
insufficient: Daniel Gomez Sr., Micaela Morales, and Annette Velez.
With respect to the negligence claims of these three plaintiffs,
the request to amend is denied without prejudice.
Fourth, the Plaintiffs also attempt to re-plead their negligent
infliction of emotional distress ("NIED") claim. Judge Van Bokkelen
dismissed the claim, finding that because the Plaintiffs did not
plead an injury sufficient to sustain a negligence claim, they
could not bring a separate NIED claim, even if they alleged
emotional distress as an injury.
Judge Kolar opines that the proposed complaint supports an
inference that the Plaintiffs could satisfy the modified-impact
rule, because the Defendants caused a direct physical impact: The
Plaintiffs' contact with the contaminants. And the complaint
plausibly alleges that the Plaintiffs have suffered emotional
distress from the fear that they or their family members could
contract an illness in the future. Assuming as true the allegation
that prolonged contact with the contaminants significantly
increases the risk of illness, it is reasonable to infer that this
is not an ordinary, transient, or trivial fear. Therefore, the
Plaintiffs will be permitted to file an amended complaint that
includes an NIED claim based on their allegations of emotional
distress.
Finally, the Plaintiffs seek to plead a separate cause of action
for medical monitoring. As discussed in oral argument, there is no
independent cause of action for medical monitoring in Indiana. In
the context of this motion to amend, Judge Kolar does not need to
determine whether medical monitoring can be an appropriate form of
damages for an existing claim.
In light of the foregoing, Judge Kolar permits the Plaintiffs to
file an amended complaint consistent with the findings described.
a. The 67 plaintiffs who properly alleged present physical
injuries may pursue a claim of negligence based on their present
physical injuries;
b. The request to amend the negligence claims of Plaintiffs
Daniel Gomez Sr., Micaela Morales, and Annette Velez is denied
without prejudice;
c. All Plaintiffs may pursue a claim for negligent infliction
of emotional distress;
d. No Plaintiffs may pursue a separate cause of action for
medical monitoring.
Judge Kolar grants in part and denies in part the Plaintiffs'
Motion for Leave to File First Amended Class Action Complaint with
Individual Claims. The Plaintiffs are granted until Oct. 24, 2022
to file an amended complaint consistent with his Opinion.
A full-text copy of the Court's Sept. 23, 2022 Opinion & Order is
available at https://tinyurl.com/3ktbpn56 from Leagle.com.
AURORA CANNABIS: Court Dismisses Securities Suit Without Prejudice
------------------------------------------------------------------
In the case, In re AURORA CANNABIS, INC. SECURITIES LITIGATION,
Civil Action No. 19-20588 (JMV) (JBC) (D.N.J.), Judge John Michael
Vazquez of the U.S. District Court for the District of New Jersey
grants the Defendants' motion to dismiss the Plaintiffs' Second
Amended Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6).
In this putative class action, the Plaintiffs, purchasers of
Aurora's stock between Oct. 23, 2018 and Feb. 6, 2020, allege that
Aurora and seven of its officers engaged in securities fraud
violations.
Aurora manufacturers and produces cannabis products. It operates in
more than 25 countries and purports to be one of Canada's leading
licensed producers. The Plaintiffs allege that the Defendants
touted the growing demand for consumer cannabis in Canada and
Aurora's priority to increase production and capacity in response.
They further allege that the Defendants unrealistically projected
that Aurora would have positive earnings before interest, taxes,
depreciation, and amortization ("EBITDA") for its fourth fiscal
quarter of 2019 ("4Q19").
Aurora missed its 4Q19 EBITDA projection, posting a loss of more
than $11 million. The Plaintiffs allege that the Defendants engaged
in securities fraud by misleading investors on numerous fronts,
including profitability and consumer demand. The alleged false
statements and omissions largely pertain to Aurora's ability to
meet its 4Q19 projection.
In the First Amended Complaint ("FAC"), the Plaintiffs identified
three factors that the Defendants allegedly knew, or recklessly
disregarded, would impact Aurora's 4Q19 projection: (1) an
over-production of cannabis by Aurora and other Canadian licensed
producers; (2) the limited number of retail stores in Ontario and
Quebec; and (3) competition from the cannabis black market. In the
SAC, the Plaintiffs still allege that Aurora's sale of cannabis in
Canada, and therefore its EBITDA projection, was "severely
constrained by at least" the overproduction of cannabis by Aurora
and other Canadian licensed producers and the limited number of
retail stores in Ontario and Quebec. They continue to allege that
the Defendants knew, or recklessly disregarded, these factors. The
Plaintiffs, however, no longer emphasize black market competition.
The Plaintiffs also include new allegations about an alleged sham
transaction with Radient, an affiliated entity. They allege that
the Defendants entered into the transaction to inflate Aurora's
financials. In November 2017, Aurora and Radient entered into a
Master Services Agreement ("MSA"), whereby Radient agreed to
process cannabis biomass from Aurora into extracts, distillates,
concentrates, or oils for a fee. The MSA also includes an Investor
Rights Agreement that provides Aurora with the ability to appoint a
director to Radient's board and participate in Radient equity
offerings. The Plaintiffs allege that these factors enabled Aurora
to exert significant control over Radient when the alleged sham
transaction occurred.
Turning to the transaction, in June 2019, the Plaintiffs allege
that Radient purchased $21.7 million of dried cannabis biomass from
Aurora. They claim that although Aurora never relinquished control
of the product, it "repurchased" the biomass from Radient for $18
million. Aurora recorded Radient's purchase as revenue. The
Plaintiffs allege that there was no business reason for this
transaction, and it was simply an orchestrated "round-trip"
transaction to boost Aurora's financials.
The Plaintiffs continue that Aurora needed to inflate its financial
picture to continue its acquisition and expansion strategy. Using
Aurora stock, Aurora acquired five separate entities between
November 2018 and August 2019. The Plaintiffs assert that the
Defendants' statements about Aurora's positive 4Q19 EBITDA
projection were false because they knew that the Radient
transaction was fraudulently engineered to boost Aurora's sales.
They add that the Defendants made material omissions in SEC filings
by failing to disclose the Radient transaction as a related-party
transaction and for recognizing revenue.
The Plaintiffs continue that through of a series of partial
disclosures beginning in September 2019, when Aurora's 4Q19
financial results were released, the value of Aurora's common stock
declined. In addition, Plaintiffs address several analyst articles
that subsequently disclosed Aurora's misconduct. They contend that
these articles also caused declines in Aurora's common stock
price.
Plaintiff William Wilson filed the initial class action Complaint
in this matter on Nov. 21, 2019. On July 23, 2020, the Court
entered an order granting Wilson's motion to consolidate his case
with another case filed by Plaintiff Andrew L. Warren.
The Plaintiffs filed the FAC on Sept. 21, 2020. The FAC alleged two
counts: (1) violation of Section 10(b) of the Securities Exchange
Act of 1934 (the "Exchange Act") and Rule 10b-5 ("Count One"); and
(2) violation of Section 20(a) of the Exchange Act against the
Individual Defendants ("Count Two").
The Defendants moved to dismiss the FAC, which the Court granted.
In dismissing the Plaintiffs' Section 10(b) and Rule 10b-5 claim,
the Court explained that the Plaintiffs failed to allege
sufficiently any actionable misrepresentations or omissions. It
also noted that the Plaintiffs' allegations as to scienter appeared
lacking, and addressed potential shortcomings with the Plaintiffs'
allegations of loss causation. Finally, because the Plaintiffs
failed to state a Section 10(b) claim, the Court also dismissed the
Section 20(a) control person liability claim.
In granting the Defendants' motion to dismiss, the Court provided
the Plaintiffs with leave to file an amended pleading to address
the identified deficiencies. The Plaintiffs filed the SAC on Sept.
7, 2021. On Dec. 6, 2021, the Defendants filed the instant motion.
In Count One, the Plaintiffs allege that Defendants violated
Section 10(b) and Rule 10b-5. To state a securities fraud claim
under Section 10(b) and Rule 10b-5, they "must allege (1) a
material misrepresentation or omission, (2) scienter, (3) a
connection between the misrepresentation or omission and the
purchase or sale of a security, (4) reliance upon the
misrepresentation or omission, (5) economic loss, and (6) loss
causation." The Defendants assert that the Plaintiffs fail "to
allege (1) any actionable material misrepresentation or omission,
(2) scienter, and (3) loss causation."
Except for the related party disclosure allegations, Judge Vazquez
rejects the Defendants' arguments to dismiss alleged omissions
about the Radient transaction. The Plaintiffs sufficiently plead
actionable omissions related to the Radient deal. They plausibly
allege that the deal lacked commercial substance because Radient
could not pay for the purchase and never took control of the
product. Thus, regardless of whether there was a contract for
repurchase, they plausibly allege that Radient should not have
recognized revenue because the contract lacked commercial
substance.
Judge Vasquez also opines that the Defendants fail to sufficiently
plead scienter as to the remaining Individual Defendants. Among
other things, the Plaintiffs plausibly plead that Aurora engaged in
a round-trip transactions of cannabis biomass, and the Court does
not consider the Defendants' theory at the motion to dismiss stage.
In assessing scienter, it must consider plausibly pled allegations.
Consequently, the Defendants cannot rely on their alternate theory
to also defeat the Plaintiffs' scienter allegations. Without
additional allegations, Judge Vaquex does not infer scienter as to
the remaining Individual Defendants. He grants their motion as to
these Defendants and the SAC is dismissed as to them. But because
the Plaintiffs sufficiently plead scienter as to Aurora, Cleiren,
and Booth, he addresses the Defendants' argument as to loss
causation.
Because the Plaintiffs fail to include these critical allegations
in the SAC, they do not sufficiently plead loss causation. The
Plaintiffs, therefore, fail to state a claim in Count One as to
Booth, Cleiren, and Aurora. The Defendants are correct that the
Plaintiffs do not identify any corrective disclosures related to
the Radient deal. The Plaintiffs also fail to plead that Aurora's
stock price declined after the two analyst articles. Even if the
Court were to take judicial notice of stock prices, the Plaintiffs'
argument that the articles constitute corrective disclosures that
resulted in a stock drop do not appear in the SAC. The Plaintiffs
cannot amend the SAC through a brief.
Finally, Judge Vazquez opines that liability under Section 20(a) is
contingent upon sufficiently pleading an underlying violation of
Section 10(b) by the controlled person. Because the Section 10b
claim is dismissed for failure to state a claim, he also dismisses
the Plaintiffs' Section 20(a) claim.
The Defendants maintain that the SAC should be dismissed with
prejudice because there are factual deficiencies that cannot be
cured. Because the SAC includes new allegations about the Radient
transaction, the Plaintiffs have not had a previous opportunity to
address any deficiencies related to such allegations. Judge
Vazquez, therefore, denies the Defendants' request to dismiss the
SAC with prejudice and provides the Plaintiffs with one further,
and final, opportunity to file an amended pleading.
For the foregoing, Judge Vazquez grants the Defendants' motion to
dismiss the Plaintiffs' SAC. The dismissal is without prejudice.
The Plaintiffs will have 30 days to file an amended complaint,
which cures the deficiencies noted. If they do not do so, the
matter will be dismissed with prejudice. An appropriate Order
accompanies the Opinion.
A full-text copy of the Court's Sept. 23, 2022 Opinion is available
at https://tinyurl.com/4e9m8ksr from Leagle.com.
AUSTRALIA: Faces Huge Class Action Over NDIS Age Exclusions
-----------------------------------------------------------
The Guardian Writer Paul Karp posted that The Australian government
is facing a massive class action, predicted to be on the same scale
as the robodebt debacle, for the alleged unlawful exclusion of over
65s from the national disability insurance scheme.
The case, proposed by Mitry lawyers, could see the commonwealth on
the hook for an estimated $800m a year for denying support to
seriously and permanently disabled people based on their age.
Proponents point to the average $111,000 a year spent on an NDIS
plan for seniors who qualified before age 64, as opposed to $56,000
for the equivalent aged-care scheme, as a form of "pecuniary loss"
suffered by those who applied aged 65 and over.
Rick Mitry, the partner of Mitry lawyers, told Guardian Australia
the firm had only begun advertising the proposed class action on
Saturday, with 70 or 80 people "keen - or some would say desperate
- to join" the case it aims to launch by year's end.
"These people are really suffering, they cannot understand why over
the age of 65, at which age you need it the most, they wipe you
out. If you have an accident at 64, you're entitled [to the NDIS]
but if the accident happens a few months later - you're out.”
Mitry said.
The national disability insurance scheme, established by the Labor
government in 2013, only applies to people aged 64 and under at the
time they applied for support. Those aged 65 and over are eligible
for other programs.
The Mitry Lawyers class action, to be run by barristers Bret Walker
and Richard Scheelings, argues the age bar was inconsistent with
the convention on the rights of people with disabilities; that
could render it unconstitutional because the commonwealth relied on
the external affairs power to enact the NDIS.
The staggered state-by-state rollout of the NDIS also could have
breached the constitution's ban on discrimination based on the
state of residency, it argues.
Peter Freckleton, a member of the Post-Polio Victoria board, told
Guardian Australia he applied for the NDIS two years ago, citing
lifelong paralysis in both legs as a result of having contracted
polio as an infant in the 1950s pandemics.
"I couldn't walk unaided, I had to wear leg braces and crutches.
There was no doubt about the disability. The only thing they [NDIS]
objected to was my age."
Freckleton said aged-care payments were not "designed to deal with
disability" - which can require big lump-sum costs like assistive
technologies - forcing him to save payments over months to pay for
a wheelchair.
"If I had been on the NDIS, [the supplier] would've signed up on
the spot. Instead, I arranged to accumulate aged-care paymentS. I
had to wait to save enough to pay for the chair."
Freckleton said the case would assist people with disability who
"live in daily fear of being forced into residential aged care,
although socially and cognitively they're fine".
"Those people need help as soon as possible. It's just
unconscionably cruel [they're excluded].
"It's disability discrimination with age as the pretext the real
victims are people with permanent and severe disabilities."
Another proponent of the case is former senior public servant Roger
Beale, who also had childhood polio. He says the case "has
significant budgetary implications and impacts thousands of
disabled people and their families".
"It could be the biggest and most morally embarrassing class action
the commonwealth has faced since robodebt," he told Guardian
Australia.
The robodebt case, brought on behalf of welfare recipients who
received computer-generated debt notices using unlawful income
averaging, cost the commonwealth $1.8bn.
Beale estimates the cost of the NDIS exclusion at $800m a year,
based on a "significant proportion" of the 140,000 people on the
highest level of the aged-care package who is "seriously and
permanently disabled and would have been eligible for NDIS support
but for the age exclusion in the Act."
Mitry Lawyers is in discussions with a commercial litigation funder
to pay for the case, with a deal expected in weeks after conditions
about the number of participants are satisfied.
"NDIS is one part of a broader system of disability support. People
over the age of 65 are able to access support through the aged-care
system," a spokesperson for the department of social services said.
[GN]
AXOS FINANCIAL: Awaits Final Approval of Mandalevy Case Settlement
------------------------------------------------------------------
Axos Financial Inc. disclosed in its FORM 10-K filing for the
fiscal year ended June 30, 2022 filed with the Securities and
Exchange Commission on September 7, 2022, that the Company is
awaiting final approval of the settlement resolving the putative
class action lawsuit styled Mandalevy v. BofI Holding, Inc., et al,
filed in the Southern District of California.
On April 3, 2017, the Company, its Chief Executive Officer and its
Chief Financial Officer were named defendants in a putative class
action lawsuit styled Mandalevy v. BofI Holding, Inc., et al, and
brought in United States District Court for the Southern District
of California (the "Mandalevy Case"). The Mandalevy Case seeks
monetary damages and other relief on behalf of a putative class
that has not been certified by the Court. The complaint in the
Mandalevy Case (the "Mandalevy Complaint") alleges a class period
that differs from that alleged in the First Class Action, and that
the Company and other named defendants violated Sections 10(b) and
20(a) of the Securities Exchange Act of 1934, and Rule 10b-5
promulgated thereunder, by failing to disclose wrongful conduct
that was alleged in a March 2017 media article. The Mandalevy Case
has not been consolidated into the First Class Action.
On December 7, 2018, the Court entered a final order granting the
defendants' motion and dismissing the Mandalevy Case with
prejudice. Subsequently, the plaintiff filed a notice of appeal and
the Court took the matter under advisement.
On November 3, 2020, the Court issued a ruling affirming in part
and reversing in part the District Court's Order dismissing the
Class Action Second Amended Complaint. The defendants filed a
petition for rehearing en banc on November 17, 2020, which petition
was denied on December 16, 2020.
The defendants filed a motion to dismiss the remanded complaint on
February 19, 2021.
On January 31, 2022, a Stipulation of Settlement was submitted to
the District Court for approval.
On May 17, 2022, the court granted preliminary approval of the
settlement and scheduled a hearing with respect to final approval
for September 23, 2022. There is no assurance that final court
approval will be granted.
The Company and the other named defendants dispute the allegations
of wrongdoing advanced by the plaintiffs in the Mandalevy Case, as
well as those plaintiffs' statement of the underlying factual
circumstances, and are vigorously defending the case subject to
final court approval of the settlement.
Axos Financial, Inc. is a San Diego, California-based holding
company for BofI Federal Bank that provides consumer and business
banking products in the United States. The company offers deposits
products, including consumer and business checking, demand,
savings, and time deposit accounts.
AXOS FINANCIAL: Final Hearing on BofI Securities Suit Deal on Oct 7
-------------------------------------------------------------------
Axos Financial Inc. disclosed in its FORM 10-K filing for the
fiscal year ended June 30, 2022 filed with the Securities and
Exchange Commission on September 7, 2022, that the court has set a
hearing for October 7, 2022, to consider final approval of the
settlement in the BofI Holding, Inc. Securities Litigation.
On October 15, 2015, the Company, its Chief Executive Officer and
its Chief Financial Officer were named defendants in a putative
class action lawsuit styled Golden v. BofI Holding, Inc., et al,
and brought in United States District Court for the Southern
District of California (the "Golden Case").
On November 3, 2015, the Company, its Chief Executive Officer and
its Chief Financial Officer were named defendants in a second
putative class action lawsuit styled Hazan v. BofI Holding, Inc.,
et al, and also brought in the United States District Court for the
Southern District of California (the "Hazan Case").
On February 1, 2016, the Golden Case and the Hazan Case were
consolidated as In re BofI Holding, Inc. Securities Litigation,
Case #: 3:15-cv-02324-GPC-KSC (the "Class Action"), and the Houston
Municipal Employees Pension System was appointed lead plaintiff.
The plaintiffs allege that the Company and other named defendants
violated Sections 10(b) and 20(a) of the Securities Exchange Act of
1934, and Rule 10b-5 promulgated thereunder, by failing to disclose
wrongful conduct that was alleged in a complaint filed in
connection with a wrongful termination of employment lawsuit filed
on October 13, 2015 (the "Employment Matter") and that as a result
the Company's statements regarding its internal controls, as well
as portions of its financial statements, were false and
misleading.
On April 13, 2022, the parties executed a Stipulation and Agreement
of Settlement. The Stipulation and Agreement of Settlement was
submitted to the District Court for approval on April 15, 2022.
On June 8, 2022, the court granted preliminary approval of the
settlement and scheduled a hearing with respect to final approval
of the settlement for October 7, 2022.
The Company said there is no assurance that final court approval
will be granted. The agreed to settlement amount is not material to
the Consolidated Financial Statements, as of and for the year ended
June 30, 2022.
The Company and the other named defendants dispute the allegations
of wrongdoing advanced by the plaintiffs in the Class Action, as
well as those plaintiffs' statement of the underlying factual
circumstances, and are vigorously defending the case subject to
final court approval of the settlement.
Axos Financial, Inc. is a San Diego, California-based holding
company for BofI Federal Bank that provides consumer and business
banking products in the United States. The company offers deposits
products, including consumer and business checking, demand,
savings, and time deposit accounts.
BARCLAYS PLC: Faces North Miami Securities Suit Over ADR Price Drop
-------------------------------------------------------------------
CITY OF NORTH MIAMI BEACH POLICE OFFICERS' AND FIREFIGHTERS'
RETIREMENT PLAN and CITY OF NORTH MIAMI BEACH GENERAL EMPLOYEES'
RETIREMENT PLAN, individually and on behalf of all others similarly
situated v. BARCLAYS PLC, JAMES E. STALEY, TUSHAR MORZARIA, and
C.S. VENKATAKRISHNAN, Case No. 1:22-cv-08172 (S.D.N.Y., Sept. 23,
2022) is a federal securities class action alleging claims against
the Defendants for violations of the Securities Exchange Act on
behalf of a class of all persons who purchased or otherwise
acquired Barclays American Depositary Receipts (ADRs) on a U.S.
open market during the class period February 18, 2021 through March
25, 2022, both dates inclusive.
Barclays 2020 Annual Report on Form 20-F, filed with the SEC on
February 18, 2021, and 2021 Annual Report on Form 20-F, filed with
the SEC on February 23, 2022, informed investors that Barclays'
internal controls over financial reporting were effective.
However, these statements were materially false and misleading, or
failed to disclose material information necessary to make
statements in the Form 20-Fs not misleading, in violation of
Section 10(b) of the Exchange Act and Rule 10b-5.
As Barclays has since admitted, during the Class Period, Barclays
internal controls over financial reporting were not effective, and
there was a material weakness in those controls, due to the fact
that starting on February 18, 2021, BBPLC, a wholly owned
subsidiary of Barclays, issued and sold approximately $17.64
billion in unregistered securities over and above the maximum
amount of securities registered in two BBPLC shelf registration
statements, and the fact that the over-issuance was not immediately
discovered. The over-issuance and sale of these unregistered
securities was also a violation of U.S. securities laws and/or SEC
regulations, and subjected Barclays to legal liability and claims
of rescission. Given the potential exposure to the securities laws
and legal liability from the over-issuance of securities, the
failure to have controls in place to account for the number of
securities issued against the number of securities registered is
such an elementary failure of internal control that is so obvious
as to be deliberately reckless, says the suit.
Barclays 2021 quarterly earnings releases and 2021 20-F were also
materially false and misleading, or failed to disclose material
information necessary to make the statements made therein not
misleading because, among other reasons, they failed to disclose
the over-issuance, and that BBPLC was violating U.S. securities
laws and/or SEC regulations, subjecting Barclays to legal liability
and claims of rescission.
On March 28, 2022, before the trading market for Barclays ADRs
opened for the day, Barclays announced the over-issuance for the
first time, that BBPLC had issued approximately $15.2 billion in
unregistered securities under an August 2019 shelf registration
statement. This disclosure revealed to the market not only the fact
of the over-issuance and Barclays liability for claims of
rescission, but that Barclays did not have adequate internal
controls to account for issued securities and prevent such an
over-issuance of unregistered securities tied to a shelf
registration statement.
In response to this news, on March 28, 2022, the price of Barclays
ADRs declined 10.61%, or $0.96 per ADR, from a closing price on
Friday March 25, 2022 of $9.05 per ADR to a closing price of $8.09
per ADR on Monday March 28, 2022, the next trading day.
Then, on July 28, 2022, before the trading market for Barclays ADRs
opened for the day, Barclays issued interim financial results for
the quarter ending June 30, 2022, and announced for the first time
that BBPLC had also over-issued unregistered securities under a
second BBPLC shelf registration statement. The July 28, 2022
financial results announcement also informed investors that
Barclays had provisioned $1.940 billion related to the overissuance
of structured notes and $201 million related to liabilities that
could be incurred arising out of ongoing discussions in respect of
a potential SEC resolution."
In response to this news, on July 28, 2022, the price of Barclays
ADRs declined $0.41 per ADR, or 5.2%, from a closing price of $7.89
per ADR on July 27, 2022 to a closing price of $7.48 per ADR on
July 28, 2022.
As a result of Defendants' wrongful acts and omissions, and the
decline in the market value of the Company's ADRs when the truth
was disclosed, the Plaintiffs and other Class members have suffered
significant losses and damages, the suit further alleges.
Barclays is a British universal bank, offering consumer banking and
payments services in the United Kingdom, United States, and Europe,
as well as global corporate and investment banking services.[BN]
The Plaintiffs are represented by:
Robert C. Finkel, Esq.
Joshua W. Ruthizer, Esq.
Adam Savett, Esq.
WOLF POPPER LLP
845 Third Avenue, 12th Floor
New York, NY 10022
Telephone: (212) 759-4600
E-mail: rfinkel@wolfpopper.com
jruthizer@wolfpopper.com
asavett@wolfpopper.com
BELLUS HEALTH: Court Dismisses Cachia Suit Over Securities Fraud
----------------------------------------------------------------
In the case, CARL D. CACHIA, Individually and On Behalf of All
Others Similarly Situated, Plaintiff v. BELLUS HEALTH INC., ROBERTO
BELLINI, FRANCOIS DESJARDINS, DR. CATHERINE BONUCCELLI, DR. JACKY
SMITH, JEFFERIES LLC, COWEN AND COMPANY, LLC, GUGGENHEIM
SECURITIES, LLC, ROBERT W. BAIRD & CO. INCORPORATED and BLOOM
BURTON SECURITIES INC., Defendants, Case No. 21 Civ. 02278-GBD
(S.D.N.Y.), Judge George B. Daniels of the U.S. District Court for
the Southern District of New York issued an order granting the
motions to dismiss the First Amended Complaint filed by the BELLUS
Defendants and Dr. Smith, for the Plaintiff's failure to state a
claim.
Lead Plaintiff Cachia brings the class action against the
Defendants for alleged misrepresentations the Defendants made to
investors. Specifically, the Plaintiff complains that the
Defendants committed fraud-based violations under Sections 10(b)
and 20(a) of the 1934 Securities Exchange Act and strict liability
violations under sections 11, 12(a)(2), and 15 of the 1933
Securities Act.
BELLUS is a biopharmaceutical company that is currently developing
BLU-5937, a drug to treat chronic cough (defined as a cough lasting
at least eight weeks. BLU-5937 is BELLUS' sole drug product it
plans to introduce into the market. The company is incorporated in
Canada, but has been trading on the U.S. stock exchange in the
NASDAQ marketplace since Sept. 5, 2019. The individual Defendants
are company executives: Bellini is the President and CEO of BELLUS;
Desjardins is the Senior VP; and Bonuccelli is the Chief Medical
Officer. Dr. Smith plays a unique role in which she is not an
employee of the company, but serves as the Chairman of the Clinical
Advisory Board to advise BELLUS in its development of BLU-5937.
The Plaintiff is an investor who purchased BELLUS securities during
the Class Period. He brings te action on behalf of "all persons and
entities who purchased or otherwise acquired (a) common stock
pursuant or traceable to the IPO Documents issued in connection
with the Company's IPO and/or (b) BELLUS securities between Sept.
5, 2019 and July 6, 2020.
BELLUS is competing against pharmaceutical companies Merck & Co.,
Shionogi, and Bayer AG to develop a treatment for chronic cough.
These pharmaceutical companies are in the process of developing a
drug to target what are known as P2X3 receptors, which play an
important role in our cough reflexes. Currently, there is no FDA
approved drug that targets P2X3 receptors.
Merck's drug, Gefapixant, is the most advanced in the FDA approval
process. On May 18, 2016, it announced that its first Phase 2b
trial for Gefapixant demonstrated effectiveness (significant
reduction in awake cough frequency), which had 29 patients with a
baseline mean awake cough frequency of 56.9 c/h. A year later, on
May 22, 2017, Merck announced that a second, larger Phase 2b trial
for Gefapixant was successful, which consisted of 253 patients with
a mean baseline awake cough frequency at 40.3 c/h. However, and
importantly, in both clinical trials patients experienced a loss in
taste as a side effect of the drug.
Shionogi and Bayer were not far behind Merck in the development of
their drug targeting P2X3 receptors. On March 14, 2019, Shionogi
described and provided results on their Phase 2 clinical trial. Its
March announcement did not include a report on participants'
ultimate baseline c/h average or mean. But on Sept. 22, 2019
Shionogi disclosed that the successful trial consisted of patients
with a baseline cough frequency of 56 c/h.
On July 25, 2019, Bayer announced that it ran a successful Phase 2
clinical trial that did not include a minimum c/h threshold
eligibility requirement for participating patients. It ostensibly
did not release the mean baseline cough frequency of its
participating patients.
While BELLUS was seemingly behind its competitors, it was in the
process of developing its chronic cough treatment drug BLU-5937.
This drug was not only supposed to treat chronic cough, but limit
the taste disturbance side effect associated with competitors'
treatments. In November 2018, BELLUS had a successful Phase 1 human
clinical trial in which none of the 24 participants reported loss
of taste. On July 30, 2019, BELLUS announced that it had designed
RELIEF -- its Phase 2 clinical trial for BLU-5937.
In its July 30, 2019 announcement, BELLUS stated that it had
enrolled its first patient in the trial and expected 65 patients to
enroll in total. It announced that it finished enrolling patients
in RELIEF on March 19, 2020. On April 6, 2020, BELLUS announced
that ultimately 52 patients completed the RELIEF trial.
At the time BELLUS first designed the RELIEF trial in July 2019,
the Company was not publicly trading on the NASDAQ yet. To generate
investor support for RELIEF and in advance of BELLUS' initial
public offering ("IPO"), BELLUS made numerous public announcements
"presenting BLU-5937 as poised to dominate the untapped
approximately $10 billion market for chronic cough -- riding the
coattails of competitors." The IPO eventually raised $70 million.
BELLUS began trading on the NASDAQ in September 2019.
After the IPO, and throughout the relevant time period, BELLUS
continued to make public statements and presentations touting the
anticipated success of RELIEF and the efficacy of BLU-5937. It
continued to make similar public statements before BELLUS had a
chance to complete enrolling patients in RELIEF. BELLUS stated its
strong belief in RELIEF up until July 2020.
On July 6, 2020, BELLUS provided the unfortunate news that RELIEF
was unsuccessful. Experts attributed the unsuccessful trial to the
"unusually low baseline cough counts compared to competitive
trials." However, RELEIF did demonstrate a statistically
significant reduction in cough frequency for all patients at or
above baseline median cough frequency of 32.4 c/h. The BELLUS stock
tanked in response to this news.
Several months after the BELLUS stock crashed, Cachia filed an
amended complaint against the Defendants alleging that through its
IPO documents and public statements, the Defendants misled
investors about RELIEF's design, enrollment, and ability to
demonstrate the efficacy of BLU-5937. The BELLUS Defendants and Dr.
Smith moved to dismiss the FAC for failure to state a claim.
The Plaintiff, on behalf of a class, brings securities fraud claims
under Sections 10(b) and 20(a) of the 1934 Securities Exchange Act
and its accompanying SEC Rule 10b-5, and sections 11, 12(a)(2), and
15 of the 1933 Securities Act. However, their securities fraud
theories fail because he does not identify a single false statement
or omission that makes any statement misleading. For this reason
alone, the complaint is dismissed.
The complaint is also dismissed for a failure to plausibly allege
any of the other elements of securities fraud. First, the Plaintiff
has failed to put forth any allegation that the Defendants made
public misrepresentations; and (ii) the Plaintiff has not
sufficiently pled scienter because there are also no factual
allegations supporting the proposition that the Defendants
consciously or recklessly knew any statements were misleading.
The Plaintiff, in the alternative, seeks leave to amend the FAC.
Judge Daniels holds that the Plaintiff's proposed amendments to the
FAC are futile and fails to cure the deficiencies in the FAC. None
of the amendments cure the fact that BELLUS never made a
misrepresentation about RELEIF. Its statements were factually true
and there were no omissions that made its representations
misleading. The proposed amendments do not add a single
representation that changes the analysis. While that failure is a
ground alone to deny further leave to amend, the proposed
amendments also fail to support any plausible scienter allegations.
The Plaintiff merely doubles down on and tries to bolster the same
arguments that failed for Plaintiff above. For the foregoing
reasons, the PSAC would be futile. Therefore, the motion for leave
to amend is denied.
The Defendants' motion to dismiss is granted. The Plaintiff's
motion for leave to amend is denied. The Plaintiff's claims are
dismissed in their entirety. The Clerk of Court is directed to
close the pending motions, (ECF Nos. 54, 63, and 76), and close the
case.
A full-text copy of the Court's Sept. 21, 2022 Memorandum Decision
& Order is available at https://tinyurl.com/536azstk from
Leagle.com.
BP EXPLORATION: Bid for Summary Judgment in Dean B3 Case Granted
----------------------------------------------------------------
In the case, MICHAEL E. DEAN v. BP EXPLORATION & PRODUCTION, INC.,
ET AL., SECTION: H(1), Civil Action No. 17-6800 (E.D. La.), Judge
Jane Triche Milazzo of the U.S. District Court for the Eastern
District of Louisiana grants the Motion for Summary Judgment filed
by BP Exploration & Production, Inc., BP America Production Co.,
and BP p.l.c.
The case is one among the "B3 bundle" of cases arising out of the
Deepwater Horizon oil spill. This bundle comprises "claims for
personal injury and wrongful death due to exposure to oil and/or
other chemicals used during the oil spill response (e.g.,
dispersant)." These cases were originally part of a multidistrict
litigation ("MDL") pending in the Eastern District of Louisiana
before Judge Barbier.
During this MDL, Judge Barbier approved the Deepwater Horizon
Medical Benefits Class Action Settlement Agreement, but the B3
plaintiffs either opted out of this agreement or were excluded from
its class definition. Subsequently, Judge Barbier severed the B3
cases from the MDL to be reallocated among the judges of this
Court. This case was reassigned to Section H.
Dean alleges continuous exposure to harmful substances and
chemicals around his residence in Destin, Florida, beginning in
April of 2010, as a result of the oil spill and subsequent cleanup
efforts. He claims to suffer from "neuropathy, skin rashes, and
other injuries" because of the exposure.8 Plaintiff asserts claims
under the general maritime law of negligence, negligence per se,
and gross negligence with respect to the spill and its cleanup.
Now before the Court is BP's Motion for Summary Judgment. It argues
that the Plaintiff has failed to produce sufficient evidence to
prove that exposure to oil or dispersants caused his alleged
injuries. To date, the Plaintiff has filed no opposition to BP's
motion.
BP moves for summary judgment on the grounds that the Plaintiff
cannot prove that exposure to oil or dispersants was the legal
cause of his alleged injuries. It argues that the Plaintiff cannot
do so because he has produced no expert testimony to support his
claims, and in a toxic tort case such as this, expert testimony as
to causation is required.
The Plaintiff has the burden of proving causation. B3 plaintiffs
must prove that the legal cause of the claimed injury or illness is
exposure to oil or other chemicals used during the response. In
general, when the conclusion regarding medical causation is not one
within common knowledge, expert medical testimony is required to
prove causation.
In the instant case, the causal connection between exposure to oil
or dispersants and the Plaintiff's injuries of muscle spasms,
arthritis, and high blood pressure is not within the common
knowledge of a layperson. In a toxic tort suit such as this one,
the plaintiff must present admissible expert testimony to establish
general causation as well as specific causation.
The Plaintiff's original deadline for expert disclosures and
reports was Jan. 4, 2022. All parties filed a joint motion to
continue the expert report deadline and the Court reset the
deadline for May 31, 2022. The Plaintiff did not formally disclose
any experts or produce any written expert reports by May 31, 2022.
In a previous filing, he suggested that a letter written by Dr.
Fred Aubert satisfied his burden of proof to prove medical
causation. His purported expert, Dr. Aubert, submitted a letter
which does not satisfy the requirements of Federal Rule of Civil
Procedure 26(a)(2)(B) and cannot be accepted as an admissible
expert report.
Judge Milazzo finds it clear that the one-page letter from Dr. Fred
Aubert does not comply with the requirements under Rule
26(a)(2)(B), as it does not include the basis for his opinion on
causation or the data he relied upon in reaching his conclusion
that the chemical exposure worsened Plaintiff's overall condition.
Moreover, the letter does not include a list of other cases in
which Dr. Aubert has testified, his qualifications, or a statement
regarding his compensation. Because this letter does not qualify as
an expert report, the Plaintiff has no admissible expert evidence.
Expert testimony is required to establish medical causation, and
since the Plaintiff lacks this proof, he cannot present a genuine
issue of material fact with respect to his claim that his worsening
condition was caused by exposure to oil and dispersants.
Additionally, to date, he has failed to oppose BP's motion.
Therefore, the Plaintiff cannot prove a necessary element of his
claims against the Defendants, and his claims must be dismissed.
For the foregoing reasons, Judge Milazzo grants BP's Motion for
Summary Judgment, joined by all Defendants. She dismisses the case
with prejudice.
A full-text copy of the Court's Sept. 20, 2022 Order & Reasons is
available at https://tinyurl.com/9naj4y65 from Leagle.com.
BP EXPLORATION: Court Excludes Cook's Expert Testimony in Wade Suit
-------------------------------------------------------------------
In the case, JAMES R. WADE v. BP EXPLORATION & PRODUCTION, INC., ET
AL., SECTION "R" (1), Civil Action No. 17-4624 (E.D. La.), Judge
Sarah S. Vance of the U.S. District Court for the Eastern District
of Louisiana grants motion to exclude the testimony of the
Plaintiff's general causation expert, Dr. Jerald Cook, and the
motion for summary judgment filed by BP Exploration & Production,
Inc., BP America Production Co., and BP p.l.c.
The case arises from the Plaintiff's alleged exposure to toxic
chemicals following the Deepwater Horizon oil spill in the Gulf of
Mexico. The Plaintiff alleges that he performed cleanup work
"collecting oil and contaminated debris from beaches" in
Mississippi after the Deepwater Horizon oil spill beginning in
April of 2010. He contends that through this work, he experienced
"continuous environmental" and "residential exposure" to crude oil
and dispersants.
The Plaintiff represents that this exposure has resulted in the
following conditions: GERD; diarrhea; abdominal cramping; chronic
renal failure; chronic renal insufficiency; hypertension;
exacerbation of cellulitis; folliculitis; dermatitis; blistering,
crusting, dryness, flakiness, inflammation, redness, swelling, and
itching of the skin; chronic hoarseness; cough; ear pain;
sinusitis; pharyngitis; sore throat; blood in sputum from the nose;
decreased sense of smell; facial or sinus pain; nasal congestion;
eye discomfort, burning, and redness; body aches; headaches;
dizziness; shortness of breath; anxiety; and fatigue.
The Plaintiff's case was originally part of the multidistrict
litigation ("MDL") pending before Judge Carl J. Barbier. His case
was severed from the MDL as one of the "B3" cases for plaintiffs
who either opted out of, or were excluded from, the Deepwater
Horizon Medical Benefits Class Action Settlement Agreement. Wade is
a plaintiff who opted out of the settlement. After the Plaintiff's
case was severed, it was reallocated to this Court. The Plaintiff
asserts claims for general maritime negligence, negligence per se,
and gross negligence against the Defendants as a result of the oil
spill and its cleanup.
To demonstrate that exposure to crude oil, weathered oil, and
dispersants can cause the symptoms the Plaintiff alleges in his
complaint, he offers the testimony of Dr. Cook, an occupational and
environmental physician. Dr. Cook is his sole expert offering an
opinion on general causation.
In his June 21, 2022 report, Dr. Cook utilizes a "general causation
approach to determine if some of the frequently reported health
complaints are indeed from the result of exposures sustained in
performing oil spill cleanup work." He concludes that "general
causation analysis indicates" that the following conditions, among
others, "can occur in individuals exposed to crude oil, including
weathered crude oil": rhinosinusitis, chronic obstructive pulmonary
disease, bronchitis, asthma, dermatitis, conjunctivitis, and dry
eye disease.
The BP parties contend that Dr. Cook's expert report should be
excluded on the grounds that that it is unreliable and unhelpful.
They also move for summary judgment, asserting that if Dr. Cook's
general causation opinion is excluded, the Plaintiff is unable to
carry his burden on causation. The Plaintiff opposes both motions.
The Plaintiff has the burden of "proving that the legal cause of
his claimed injury or illness is exposure to oil or other chemicals
used during the response. At issue is whether the Plaintiff has
produced admissible general causation evidence. To prove that
exposure to the chemicals in oil and dispersants can cause the
medical conditions he alleges, he offers the testimony of an
environmental toxicologist, Dr. Cook asserts that his report is
"based on the scientific methods used in the field of environmental
toxicology."
Based on Dr. Cook's report, the Defendants argue that Wade is
unable to prove general causation with relevant and reliable expert
testimony. They contend that Dr. Cook's general causation report is
unreliable because he failed to: (1) identify the harmful dose of
exposure of any particular chemical to which the Plaintiff was
exposed that is necessary to cause his conditions; (2) identify
which chemicals can cause which conditions; (3) verify Wade's
diagnoses; and (4) follow the accepted methodology for analyzing
epidemiology. They further argue that even if Dr. Cook's report
were reliable, it is unhelpful because it addresses few of the
Plaintiff's specific medical complaints.
Judge Vance finds that Dr. Cook's failure to identify the level of
exposure to a relevant chemical that can cause the conditions
asserted in the Plaintiff's complaint renders his opinion
unreliable, unhelpful, and incapable of establishing general
causation. The closest Dr. Cook's report comes to identifying a
harmful level of exposure that can trigger specific health
conditions is his consideration of the Bradford Hill factor of
"dose-response." Dr. Cook's report does acknowledge that one of the
limitations of the studies he relies on is the "limited
availability of quantitative exposure measures," given the "likely
low level of individual exposures."
Given Dr. Cook's failure to determine the relevant harmful level of
exposure to chemicals to which the Plaintiff was exposed for his
specific conditions, Judge Vance finds that he lacks sufficient
facts to provide a reliable opinion on general causation. She also
finds that Dr. Cook's report is unhelpful to the fact-finder for
many of the same reasons. His opinion is unhelpful because of his
inability to link any specific chemical that Wade was allegedly
exposed to, at the level at which he was exposed, to the conditions
that he alleges in his complaint.
Given the concerns about the accuracy of this model from both the
Plaintiff's expert as well as the investigators themselves, Judge
Vance does not find that, in this context, Dr. Cook's conclusions
are reliable.
In sum, the Plaintiff, as the party offering the testimony of Dr.
Cook, has failed to meet his burden of establishing the reliability
and relevance of Dr. Cook's report. Given that Dr. Cook's report is
unreliable and fails to provide the "minimal facts necessary" to
establish general causation in the case, Judge Vance grants the
Defendants' motion to exclude Dr. Cook's testimony.
In their motion for summary judgment, the Defendants contend that
they are entitled to summary judgment because the Plaintiff cannot
establish either general or specific causation.
Because she excludes Dr. Cook's opinion on general causation, and
the Plaintiff has produced no other admissible general causation
evidence in the case, Judge Vance need not reach the question of
specific causation. Given that the Plaintiff cannot prove a
necessary element of his claims against the Defendants, his claims
must be dismissed. Accordingly, she grants the Defendants' motion
for summary judgment.
The Plaintiff's claims are dismissed with prejudice.
A full-text copy of the Court's Sept. 23, 2022 Order & Reasons is
available at https://tinyurl.com/37sxzunu from Leagle.com.
BUILD-A-BEAR WORKSHOP: Settlement Discussions Ongoing in TCPA Suit
------------------------------------------------------------------
Build-a-Bear Workshop Inc. disclosed in its Form 10-Q filing for
the quarterly period ended July 30, 2022, filed with the Securities
and Exchange Commission on September 8, 2022, that the Company is
continuing preliminary discussions with an insurance carrier and
the plaintiff in the putative class action lawsuit filed against
the Company asserting claims under the Telephone Consumer
Protection Act (the "TCPA") about a possible settlement.
In August 2021, a putative class action lawsuit was filed against
Build-A-Bear Workshop, Inc. The plaintiff amended the complaint
during the Company's first quarter of fiscal 2022. As amended, the
complaint asserts claims under the Telephone Consumer Protection
Act (the "TCPA") alleging that the Company continued to send
marketing text messages to mobile phone numbers after those numbers
had allegedly opted-out of receiving them. Statutory damages under
the TCPA are assessed at up to $500 per text message, and up to
$1,500 per text message if the violation was knowing or willful.
Following a mediation session on August 16, 2022, the Company is
continuing preliminary discussions with the plaintiff and an
insurance carrier about a possible settlement, which, if finalized,
is not expected to result in a significant expense for the Company.
Build-A-Bear Workshop, Inc. is Missouri-based experiential
specialty retailer where children and their families could create
their own stuffed animals.
CALIFORNIA STATEWIDE: Cooley Petitions for Writ of Certiorari
-------------------------------------------------------------
Plaintiff Terry C. Cooley filed with the Supreme Court of United
States a petition for a writ of certiorari in the matter styled
TERRY C. COOLEY, PETITIONER v. CALIFORNIA STATEWIDE LAW ENFORCEMENT
ASSOCIATION, ET AL., RESPONDENTS, Case No. 22-216.
Response is due on October 11, 2022.
Mr. Cooley petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for the Ninth
Circuit in the case titled TERRY C. COOLEY, on behalf of himself
and all others similarly situated, Plaintiff-Appellant v.
CALIFORNIA STATEWIDE LAW ENFORCEMENT ASSOCIATION; CALIFORNIA
ASSOCIATION OF LAW ENFORCEMENT EMPLOYEES, as an individual
defendant and as Representative of the Class of all Affiliate
Associations of the California Statewide Law Enforcement
Association, Defendants-Appellees, Case No. 19-16498. The Ninth
Circuit affirmed the District Court's order granting Defendants'
motion to dismiss. Mr. Cooley petitioned for rehearing en banc, and
the court of appeals denied his petition on June 8, 2022.
The questions presented are: (1) Does the Constitution allow a
public-sector union to enter into a contract with a state employer
that restricts a public employee's constitutional right to resign
his union membership?; and (2) Did Mr. Cooley promise to maintain
his union membership until June 1, 2019, when he initialed the
union-membership application on December 17, 2013?
The case arises out of Mr. Cooley's attempt to end his union
membership after the Supreme Court's decision in Janus v. Am. Fed'n
of State, Cty., & Mun. Employees, Council 31, 138 S.Ct. 2448
(2018). Mr. Cooley brings the putative class action alleging the
California State Law Enforcement Association ("CSLEA") violated his
constitutional rights by refusing to accept his resignation from
union membership, by continuing to deduct union-related fees from
his paycheck, and for having assessed him the equivalent of
now-impermissible agency fees.
On Feb. 22, 2019, Mr. Cooley filed his First Amended Complaint
(FAC) alleging five counts: (1) declaratory judgment; (2)
injunctive relief; (3) monetary relief under 42 U.S.C. Section
1983; (4) conversion and trespass to chattels; and (5) unjust
enrichment. The FAC includes additional allegations regarding Mr.
Cooley's purported union membership application; allegations that
California Government Code Sections 1152(a) and 1153(a) are
unconstitutional; and allegations as to certain anticipated
affirmative defenses. But the foundation of the FAC remains the
same as in the original complaint: that the Union violated Mr.
Cooley's constitutional rights by refusing to accept his
resignation and by continuing to collect money from his paycheck.
Mr. Cooley seeks a refund of all compulsory fees paid before Janus,
and all dues paid after Mr. Cooley's attempted resignation in the
wake of Janus.[BN]
Plaintiff-Appellant-Petitioner Terry C. Cooley, on behalf of
himself and all others similarly situated, is represented by:
Jonathan F. Mitchell, Esq.
MITCHELL LAW PLLC
111 Congress Avenue Suite 400
Austin, TX 78701
Telephone: (512) 686-3940
E-mail: jonathan@mitchell.law
- and -
Talcott J. Franklin, Esq.
FRANKLIN SCOTT CONWAY LLP
1629 K Street, Suite 300
Washington, D.C. 20006
Telephone: (202) 688-3200
- and -
Bradley Benbrook, Esq.
BENBROOK LAW GROUP, PC
400 Capitol Mall, Suite 2530
Sacramento, CA 95814
Telephone: (916) 447-4900
E-mail: brad@benbrooklawgroup.com
CANADA: Black Claimants Face Trauma Amid Class Action Lawsuit
-------------------------------------------------------------
Global News Writer Amanda Connolly posted that one of the
organizers behind the class action lawsuit filed against the
federal government by Black public servants says he wants Canadians
learning about the experiences of claimants in the case to "be an
ally" amid a process that is causing "trauma" for those involved.
In an interview with The West Block's Mercedes Stephenson, Nicholas
Marcus Thompson said the government is "speaking from both sides of
its mouth" when it comes to squaring the treatment of claimants in
the lawsuit in court with the comments officials make publicly
about dismantling racism.
"They're saying one thing publicly and they're fighting Black
workers in court, where federal lawyers keep bringing forward
motions "to delay the case," he said.
"The government has fully acknowledged that this issue exists in
all of its institutions and that the pain and damage that it causes
is real. And then it shows up in court fighting Black workers,
forcing Black workers to recount the trauma that they've endured at
the hands of the government for decades," he added.
The class action lawsuit filed last year alleges systemic
discrimination by the government when it comes to hiring and
promotional decisions in the federal public service, dating back
decades.
Plaintiffs in the case are seeking $2.5 billion in compensation for
lost income, opportunities, and lost pension values as a result of
systemic discrimination that prevented qualified Black public
servants from being promoted into higher paying and more senior
jobs.
Federal public service pensions are calculated based on the
averages of an individual's highest earning years, meaning those
who get paid less throughout their careers get smaller pensions
when they retire.
"There has been a de facto practice of Black employee exclusion
from hiring and promotion throughout the Public Service because of
the permeation of systemic discrimination through Canada's
institutional structures," the statement of claim says.
The statement of claim also says that equity measures taken to date
have "merely masked the increasing disparity, exclusion, and
marginalization of Black Canadians" from equal opportunities in the
public service and that there remains a "pernicious"
underrepresentation in the upper ranks.
Thompson said he wants to see the government come to the table and
commit to working towards the solutions that plaintiffs say would
help fix the problem and to make legislative changes to the
Employment Equity Act as well.
"We're seeking to create a separate and distinct category for Black
workers under the legislation to ensure that Black workers are not
left behind when it comes to hiring and promotional opportunities,"
he said. Thompson also added there needs to be a commission formed
to track concrete progress on preventing future discrimination.
"Black people want to fully participate and they're being denied
that opportunity at the highest level and the largest employer in
Canada, so, listen to us. Be an ally and let’s work together
because we want to make Canada a better place and to fully
participate in Canada," he said. [GN]
CASH EXPRESS: Faces Class Lawsuit Over Customers' Data Breach
-------------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP, a preeminent national
consumer rights law firm, is investigating claims on behalf of
customers with loans Cash Express, LLC whose information may be
have stolen in a recent data breach in February 2022.
Cash Express is notifying customers and former customers that their
personal information, including names, dates of birth, Social
Security numbers, driver’s license numbers, and financial
information (including bank account numbers and routing numbers)
may have been stolen as part of a recent hack.
So, if any customers have received a recent notice of the data
breach and have experienced recent concerning activity, it is
possible that their personal information was compromised and is
being offered for sale on the dark web.
To fill out the contact form, customers may click this link:
https://www.whafh.com/archives/news_room/investigation-cash-express-llc
If customers wish to discuss this litigation or have any questions
regarding their rights and interests in this matter, they can
immediately contact Wolf Haldenstein by telephone at (800)
575-0735, via e-mail at gstone@whafh.com, or visit their website at
www.whafh.com.
Wolf Haldenstein Adler Freeman & Herz LLP has extensive experience
in the prosecution of consumer rights litigation in state and
federal trial and appellate courts across the country. The firm has
attorneys in various practice areas and offices in New York,
Chicago, and San Diego. Courts have repeatedly recognized the
reputation and expertise of this firm and have appointed it to
major positions in complex consolidated litigation.
Contact:
Wolf Haldenstein Adler Freeman & Herz LLP
Gregory Stone, Director of Case and Financial Analysis
Carl Malmstrom, Esq., Partner
Email: gstone@whafh.com or malmstrom@whafh.com
Tel: (800) 575-0735 or (212) 545-4774
Attorney Advertising. Prior results do not guarantee or predict a
similar outcome. [GN]
CHEMBIO DIAGNOSTICS: Ordered to File Settlement Papers By Oct. 17
-----------------------------------------------------------------
Chembio Diagnostics Inc. disclosed in its Form 8-K filing filed
with the Securities & Exchange Commission on September 7, 2022,
that the court has ordered the parties in the consolidated putative
class action litigation captioned In re Chembio Diagnostics, Inc.
Securities Litigation to file their formal stipulation of
settlement setting forth the full terms of their proposed
settlement on or before October 17, 2022.
The Company and the other parties in the consolidated putative
class action litigation captioned In re Chembio Diagnostics, Inc.
Securities Litigation convened an in-person mediation before a
mediator on July 14, 2022. Although the parties did not resolve the
matter during that session, they continued their discussions
through the mediator.
On August 26, 2022, the Company and the other parties reached an
agreement in principle on the financial terms of a proposed
settlement of all claims that were asserted, or could have been
asserted, on an individual and class-wide basis against all
defendants in the case, including under both the Securities Act and
the Securities Exchange Act of 1934 (the "Exchange Act"). The
agreement in principle to settle contemplates an $8.1 million
payment on behalf of the defendants, approximately $209,000 of
which is to be paid by the Company with the remainder being funded
by certain of its insurers. After the date of this prospectus, the
parties will undertake to negotiate and prepare a formal
stipulation of settlement setting forth the full terms of the
proposed settlement, as well as the related documents which will be
submitted to the court for approval together with the parties'
stipulation.
Accordingly, on August 29, 2022, the Company and certain other
defendants filed a letter motion requesting that the court stay all
proceedings to allow the parties to focus their efforts on
negotiating and preparing the stipulation or settlement and related
papers.
The court granted the motion on August 31, 2022 and ordered the
parties to file their stipulation on or before October 17, 2022.
The Company said there can be no assurance that the parties will be
able to reach agreement on the terms of a stipulation or
settlement, or that if the parties reach agreement, the stipulation
will be granted preliminary and final approval by the court.
Chembio Diagnostics, Inc. develops, manufactures and commercializes
point-of-care tests for the detection and diagnosis of infectious
diseases, including COVID-19, sexually transmitted disease, and
fever and tropical disease.
DELTA PACKING: Barbosa, et al., Seek to Certify Three Classes
-------------------------------------------------------------
In the class action lawsuit captioned as IRMA BARBOSA and CECILIA
MATA, on behalf of themselves and those similarly situated, v.
DELTA PACKING COMPANY OF LODI, INC. AKA "DELTA FRESH"; SALINAS FARM
LABOR CONTRACTOR, INC.; ERNIE COSTAMAGNA, an individual, ANNAMARIE
COSTAMAGNA, and individual, and DOES 1- 20, Case No.
2:20-cv-01096-TLN-KJN (E.D. Cal.), the Plaintiffs ask the Court to
enter an order certifying the following plaintiff classes under
Rule 23 of the Federal Rules of Civil Procedure:
-- Auto-Deduction Class
"All non-exempt individuals who are or have been employed
by the Defendants at the Delta Packing Company of Lodi,
Inc. packing plant in Lodi, California at any time since
May 29, 2016 whose time records show auto-deducted 30-
minute meal periods;"
-- Rest Break Class
"All non-exempt individuals who are or have been employed
by the Defendants at the Delta Packing Company of Lodi,
Inc. packing plant in Lodi, California at any time since
May 29, 2016 who were subject to policies requiring work
during rest periods;"
-- Unpaid Minimum Wage Class
"All non-exempt individuals who are or have been employed
by the Defendants at the Delta Packing Company of Lodi,
Inc. packing plant in Lodi, at any time since May 29, 2016
who were required to don and doff and complete other work
tasks off-the-clock."
Delta Packing is a grower, packer, and shipper of California fresh
cherries, wine grapes, grape juice, and wine.
A copy of the Plaintiffs' motion dated Sept. 19, 2022 is available
from PacerMonitor.com at https://bit.ly/3fh0XUR at no extra
charge.[CC]
The Plaintiffs are represented by:
Stan S. Mallison, Esq.
Hector R. Martinez, Esq.
Daniel C. Keller, Esq.
4 MALLISON & MARTINEZ
1939 Harrison Street, Suite 730
5 Oakland, CA 94612-3547
Telephone: (510) 832-9999
Facsimile: (510) 832-1101
E-mail: StanM@TheMMLawFirm.com
HectorM@TheMMLawFirm.com
DKeller@TheMMLawFirm.com
DEUTSCHE BANK: Agrees to Settle Investors' Suit for $26.25-M
------------------------------------------------------------
Bloomberg News published that Deutsche Bank AG agreed to pay $26.25
million to settle a lawsuit that accused it of misleading investors
about how thoroughly it vetted clients, among them convicted sex
offender, Jeffrey Epstein and Russian oligarchs.
The proposed accord filed Friday in Manhattan federal court
resolves a class-action suit filed in 2020 over the bank's "Know
Your Customer" processes and procedures.
The suit pointed to the bank's business relationship with Epstein,
who died in jail in 2019, and oligarchs, including billionaire
Roman Abramovich.
Investors alleged that the bank's false statements about its
vetting processes artificially inflated its stock price and caused
shares to plunge when information about its client list went
public.
In June, the judge rejected the bank's request to dismiss the
investors' complaint. The bank denied any wrongdoing, according to
the settlement agreement.
The settlement was reported earlier by Reuters.
In 2020, the bank agreed to pay New York's banking regulator $150
million for a string of compliance lapses including a half-decade
of lax oversight of Epstein's financial dealings.
The case is Karimi v. Deutsche Bank AG, 22-cv-02854, U.S. District
Court, Southern District of New York (Manhattan). [GN]
DISCOVERY INC: Collinsville Police Sues Over Market Price Drop
--------------------------------------------------------------
COLLINSVILLE POLICE PENSION BOARD On Behalf of the COLLINSVILLE
POLICE PENSION FUND, Individually and On Behalf of All Others
Similarly Situated v. DISCOVERY, INC., WARNER BROS. DISCOVERY,
INC., DAVID ZASLAV, and GUNNAR WIEDENFELS, Case No. 1:22-cv-08171
(S.D.N.Y., Sept. 23, 2022) is a federal securities class action on
behalf of all persons or entities who exchanged Discovery common
stock for WBD common stock pursuant or traceable to Discovery's
February 4, 2022 Registration Statement on Form S-4 and Joint Proxy
Statement/Prospectus filed with the SEC on February 10, 2022, or
purchased shares of WBD common stock on the open market traceable
to the Prospectus through the date of the filing of this
Complaint.
This action relates to the merger between Discovery and the
WarnerMedia division of AT&T, Inc. The Merger was announced on May
17, 2021 and closed on April 8, 2022.
Pursuant to the Merger, Discovery combined its business with
WarnerMedia to form WBD. Each Discovery common shareholder received
in the Merger one share of WBD common stock for each Discovery
common share owned, and each Discovery preferred shareholder
received shares of WBD common stock in an agreed ratio. AT&T
received directly from WBD the balance of the outstanding and
issued WBD common shares and contemporaneously distributed those
shares to AT&T's shareholders. Each AT&T shareholder received
.241917 shares of WBD for each AT&T share owned. As a result of the
Merger, former Discovery shareholders owned 29% of the equity of
WBD, and AT&T's shareholders owned 71% of the equity of WBD, says
the suit.
In addition to the exchange of businesses and shares, pursuant to
the Merger, Discovery paid AT&T additional consideration in the
form of $40.4 billion in cash and separately the retention of
certain WarnerMedia debt.
The Merger was subject to a March 11, 2022 majority vote of
Discovery voting shareholders of record as of January 18, 2022, but
was not subject to a vote of AT&T shareholders. Unlike Discovery,
which merged into WBD and ceased being a separate operating entity,
AT&T continued as a separate business concentrated in providing
broadband services.
After the Merger, WBD, as the successor corporation, was managed by
Discovery's former senior officers -- principally David Zaslav (as
CEO), and Gunnar Wiedenfels (as CFO).
In all, over 700 million WBD shares were issued to Discovery common
and preferred shareholders pursuant to the Merger. At the time of
filing the Registration Statement and Prospectus, Discovery and the
Individual Defendants either knew or had access to adverse
information concerning operations of the WarnerMedia business.
However, that adverse information was not disclosed to Discovery
shareholders in the Registration Statement or Prospectus or at any
time before the vote on the Merger or the effective date of the
Merger. As a result, the Registration Statement and Prospectus and
certain of the Defendants' other public statements, contained
untrue statements of material fact or omitted to state material
facts required to be stated therein or necessary to make the
statements therein not misleading, in violation of Sections 11 and
12(a)(2) of the Securities Act.
The statements were materially incomplete and untrue and omitted to
state material facts required to be stated therein or necessary to
make the statements therein not misleading, the suit alleges.
From April 11, 2022, the first trading day after completion of the
Merger, to the date prior to filing of this Complaint (September
23, 2022), WBD's market price fell by 52.4%, from $24.78 to $11.79
per share, as the market became aware of the foregoing
misrepresented and omitted facts.
The Plaintiff is a pension fund created for the benefit of current
and former Collinsville, Illinois police officers. As of the record
date of the Merger, the Plaintiff owned shares of Discovery Series
C common stock. The Plaintiff exchanged those shares of Discovery
Series C common stock for WBD common stock pursuant to the
Registration Statement and Prospectus as part of the Merger, and
purchased additional WBD shares on the open market after the
completion of the Merger, and was damaged thereby. Plaintiff's
certification attesting to its exchange of and trading in WBD
common stock is annexed hereto.
WBD is a global media and entertainment company that creates and
distributes a portfolio of content and brands across television,
film and streaming. The Individual Defendants are officers of the
Defendants.[BN]
The Plaintiff is represented by:
Robert C. Finkel, Esq.
Joshua W. Ruthizer, Esq.
Sasha D. Marseille, Esq.
WOLF POPPER LLP
845 Third Avenue
New York, NY 10022
Telephone: (212) 759-4600
E-mail: rfinkel@wolfpopper.com
jruthizer@wolfpopper.com
smarseille@wolfpopper.com
DISH NETWORK: Fails to Pay Proper Wages, Calderon Alleges
---------------------------------------------------------
CHRIS CALDERON; NICK PATSONIKOLIS; and AMRESH BOODOO, individually
and on behalf of all others similarly situated, Plaintiffs v. DISH
NETWORK CORP. d/b/a DISH NETWORK and ECHOSPHERE L.L.C. d/b/a DISH
NETWORK, Defendants, Case No. 1:22-cv-08151 (S.D.N.Y., Sept. 23,
2022) seeks to recover from the Defendants unpaid wages, interest,
liquidated damages, attorneys' fees, and costs.
The Plaintiffs were employed by the Defendants as installation
technician.
DISH NETWORK CORPORATION is a satellite television company. The
Company provides a direct broadcast satellite subscription
television, audio programming, and interactive television services
to commercial and residential subscribers. DISH Network operates in
the United States. [BN]
The Plaintiff is represented by:
D. Maimon Kirschenbaum, Esq.
Josef Nussbaum, Esq.
JOSEPH & KIRSCHENBAUM LLP
32 Broadway, Suite 601
New York, NY 10004
Telephone: (212) 688-5640
Facsimile: (212) 688-2548
DIVERSANT LLC: Fails to Pay Project Managers' OT Wages Under FLSA
-----------------------------------------------------------------
KYMBERLY PERRY, Individually and on behalf of all others similarly
situated v. DIVERSANT, LLC, Case No. 3:22-cv-02121-M (N.D. Tex.,
Sept. 23, 2022) seeks to recover unpaid overtime compensation,
liquidated damages, and attorneys' fees and costs pursuant to the
provisions of the Fair Labor Standards Act.
The Plaintiff and the Putative Collective Members are those
similarly situated persons who worked for Diversant as hourly
Project Managers, at any time from September 22, 2019, through the
final disposition of this matter, who were improperly classified as
exempt from overtime and were not paid overtime compensation in
violation of the FLSA.
Although Plaintiff and the Putative Collective Members routinely
worked (and continue to work) in excess of 40 hours per workweek,
Plaintiff and the Putative Collective Members were not paid
overtime of at least one and one-half their regular rates of pay
for all hours worked in excess of 40 hours per workweek, says the
suit.
Diversant is an IT staffing company with its headquarters in the
State of New Jersey. Diversant employed (and continues to employ)
numerous hourly Project Managers throughout the United States --
Plaintiff and the Putative Collective Members -- who work for
Diversant by providing their labor services to Diversant's client
companies.[BN]
The Plaintiff is represented by:
Clif Alexander, Esq.
Austin W. Anderson, Esq.
ANDERSON ALEXANDER, PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Telephone: (361) 452-1279
Facsimile: (361) 452-1284
E-mail: clif@a2xlaw.com
austin@a2xlaw.com
- and -
Jay Forester, Esq.
Katherine Serrano, Esq.
FORESTER HAYNIE, PLLC
400 North Saint Paul Street, Suite 700
Dallas, TX 75201
Telephone: (214) 210-2100
E-mail: jay@foresterhaynie.com
kserrano@foresterhaynie.com
DOCUSIGN INC: Collins v. DocuSign Inc. Voluntarily Dismissed
------------------------------------------------------------
Docusign Inc. disclosed in its Form 10-Q filing for the quarterly
period ended July 31, 2022, filed with the Securities and Exchange
Commission on September 8, 2022, that an earlier action alleging
similar claims against the same defendants, captioned Collins v.
DocuSign, Inc., et al., Case No. 3:22-cv-00851, filed in the
Eastern District of New York and subsequently transferred to the
Northern District of California, was voluntarily dismissed on
February 14, 2022.
DocuSign, Inc. is a provider of eSignature services, with its
principal executive offices located in San Francisco, California.
[BN]
DOCUSIGN INC: Weston v. DocuSign Inc. Pending in N.D. Calif.
------------------------------------------------------------
DocuSign Inc. disclosed in its Form 10-Q filing for the quarterly
period ended July 31, 2022, filed with the Securities and Exchange
Commission on September 8, 2022, that an amended putative
securities class action captioned Weston v. Docusign, Inc., is
pending in California court.
On February 8, 2022, a putative securities class action was filed
in the U.S. District Court for the Northern District of California,
captioned Weston v. DocuSign, Inc., et al., Case No. 3:22-cv-00824,
naming DocuSign and certain of its current and former officers as
defendants.
An amended complaint was filed on July 8, 2022. As amended, the
suit purports to allege claims under Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934, and Rule 10b-5 promulgated
thereunder, based on allegedly false and misleading statements
about the Company's business and prospects during the course of the
COVID-19 pandemic. As amended, the suit is purportedly brought on
behalf of purchasers of its securities between June 4, 2020 and
June 9, 2022.
The Company's response to the amended complaint was due on
September 16, 2022, and it believes the allegations are devoid of
merit.
DocuSign, Inc. is a provider of eSignature services, with its
principal executive offices located in San Francisco, California.
[BN]
DOUYU INT'L: Class Settlement to be Heard on Dec. 1
---------------------------------------------------
Scott+Scott Attorneys at Law LLP, Robbins Geller Rudman & Dowd LLP,
and Pomerantz LLP issued a statement regarding the DouYu Securities
Litigation:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: COMMERCIAL DIVISION
In re DOUYU INTERNATIONAL
HOLDINGS LIMITED SECURITIES
LITIGATION
This Document Relates To:
THE CONSOLIDATED ACTION.
Index No. 651703/2020
Part 53 – Justice Andrew Borrok
SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION AND
PROPOSED SETTLEMENT; (II) SETTLEMENT HEARING; AND
(III) MOTION FOR ATTORNEYS' FEES AND LITIGATION EXPENSES
TO: All persons and entities who purchased or otherwise acquired
the publicly traded American Depositary Shares of DouYu
International Holdings Limited ("DouYu") (NYSE ticker symbol:
"DOYU") during the period between July 16, 2019 (the date of
DouYu's IPO) and January 21, 2020, inclusive (the "Class Period")
and were damaged thereby (the "Settlement Class"):
PLEASE READ THIS NOTICE CAREFULLY, YOUR RIGHTS MAY BE AFFECTED BY A
CLASS ACTION LAWSUIT PENDING IN THIS COURT.
YOU ARE HEREBY NOTIFIED, pursuant to Article 9 of the New York
Civil Practice Law and Rules and an Order of the Supreme Court of
the State of New York, New York County, Commercial Division (the
"Court"), that the above-captioned litigation (the "Action") is
pending in the Court.
YOU ARE ALSO NOTIFIED that the plaintiffs in this Action,2 Marcus
Chelf and Pavel Kovalenko (the "State Plaintiffs"), together with
plaintiffs Li Yunyan and Heng Huang (the "Federal Plaintiffs") in a
related action captioned In re DouYu International Holdings Limited
Securities Litigation, CA No. 1:20-cv-07234 (DLC) (S.D.N.Y.) (the
"Federal Action"), have reached a proposed Settlement of both
Actions for $15,000,000 in cash on behalf of the Settlement Class,
that, if approved, will resolve all claims in both Actions.
A hearing will be held on December 1, 2022, at 10:00 a.m. Eastern
Time, before the Honorable Andrew Borrok, either in person at the
New York County Courthouse, Courtroom 238, 60 Centre Street, New
York, NY 10007, or by telephone or videoconference (at the
discretion of the Court). At the hearing, the Court will determine
(i) whether the proposed Settlement should be approved as fair,
reasonable, and adequate; (ii) whether the Action should be
dismissed with prejudice against Defendants, and the Releases
specified and described in the Stipulation of Settlement dated as
of June 3, 2022 (and in the Notice) should be granted; (iii)
whether, for purposes of the proposed Settlement only, the Action
should be finally certified as a class action on behalf of the
Settlement Class, State Plaintiffs should be certified as Class
Representatives for the Settlement Class, and Scott+Scott Attorneys
at Law LLP and Robbins Geller Rudman & Dowd LLP should be finally
appointed as Class Counsel for the Settlement Class; (iv) whether
the proposed Plan of Allocation should be approved as fair and
reasonable; and (v) whether Plaintiffs' Counsel's application for
an award of attorneys' fees and litigation expenses should be
approved.
If you are a member of the Settlement Class (a "Settlement Class
Member"), your rights will be affected by the pending Action and
the Settlement, and you may be entitled to share in the Settlement
Fund. If you have not yet received the Notice and Claim Form, you
may obtain copies of these documents by contacting the Claims
Administrator at DouYu Securities Litigation, Claims Administrator,
c/o Gilardi & Co. LLC, P.O. Box 8040, San Rafael, CA 94912-8040,
1-866-753-8856. Copies of the Notice and Claim Form can also be
downloaded from the website maintained by the Claims Administrator
at www.DouYuSecuritiesLitigation.com.
If you are a Settlement Class Member, to be eligible to receive a
payment under the proposed Settlement, you must submit a Claim Form
postmarked (if mailed), or online, no later than December 28, 2022,
in accordance with the instructions set forth in the Claim Form.
If you are a Settlement Class Member and do not submit a proper
Claim Form, you will not be eligible to share in the distribution
of the net proceeds of the Settlement but you will nevertheless be
bound by any releases, judgments, or orders entered by the Court in
the Action.
If you are a Settlement Class Member and wish to exclude yourself
from the Settlement Class, you must submit a request for exclusion
such that it is received no later than November 1, 2022, in
accordance with the instructions set forth in the Notice. If you
properly exclude yourself from the Settlement Class, you will not
be bound by any judgments or orders entered by the Court in the
Action and you will not be eligible to share in the proceeds of the
Settlement.
Any objections to the proposed Settlement, the proposed Plan of
Allocation, or Plaintiffs' Counsel's Fee and Expense Application
must be filed with the Court and delivered to Class Counsel and
defendant DouYu's Counsel such that they are received no later than
November 10, 2022, in accordance with the instructions set forth in
the Notice.
Please do not contact the Court, the Clerk's office, DouYu, the
other Defendants, or their counsel regarding this notice. All
questions about this notice, the proposed Settlement, or your
eligibility to participate in the Settlement should be directed to
Class Counsel or the Claims Administrator.
Inquiries, other than requests for the Notice and Claim Form,
should be made to either of the below Class Counsel:
SCOTT+SCOTT ATTYS AT LAW LLP
William C. Fredericks, Esq.
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
1-800-404-7770
scottcases@scott-scott.com
ROBBINS GELLER RUDMAN & DOWD LLP
Vincent M. Serra, Esq.
58 South Service Road
Melville, NY 11747
1-800-449-4900
settlementinfo@rgrdlaw.com
Requests for the Notice and Claim Form should be made to:
DouYu Securities Litigation
Claims Administrator
c/o Gilardi & Co. LLC
P.O. Box 8040
San Rafael, CA 94912-8040
1-866-753-8856
www.DouYuSecuritiesLitigation.com
By Order of the Court
EL BANDIDO: Fails to Pay Proper Wages Acevedo Suit Alleges
----------------------------------------------------------
VICTOR ACEVEDO, individually and on behalf of all others similarly
situated, Plaintiff v. EL BANDIDO RESTAURANT INC. a/k/a EL BANDIDO
SPRING VALLEY a/k/a EL BANDIDO MIDDLETOWN; and DONATELLO MANUEL
TELLO A/K/A TONY TELLO, Defendants, Case No. 1:22-cv-08180
(S.D.N.Y., Sept. 23, 2022) is an action against the Defendant for
failure to pay minimum wages, overtime compensation, and provide
accurate wage statements.
Plaintiff Acevedo was employed by the Defendants as cook and
dishwasher.
EL BANDIDO RESTAURANT INC. a/k/a EL BANDIDO SPRING VALLEY a/k/a EL
BANDIDO MIDDLETOWN owns and operates two restaurants serving
Mexican cuisine, the Spring Valley Restaurant, and another
restaurant located at 536 East Main Street, Middletown, NY 10940.
[BN]
The Plaintiff is represented by:
Eliseo Cabrera, Esq.
KATZ MELINGER PLLC
370 Lexington Avenue, Suite 1512
New York, NY 10017
Telephone: (212) 460-0047
Facsimile: (212) 428-6811
Email: edcabrera@katzmelinger.com
EVOLENT HEALTH: $23.5MM Class Settlement to be Heard on Nov. 18
---------------------------------------------------------------
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
PLYMOUTH COUNTY RETIREMENT SYSTEM
and OKLAHOMA POLICE PENSION AND
RETIREMENT SYSTEM, Individually and On
Behalf of All Others Similarly Situated,
Plaintiffs,
v.
EVOLENT HEALTH, INC., FRANK WILLIAMS,
NICHOLAS MCGRANE, and SETH BLACKLEY,
Defendants.
Case No. 1:19-cv-01031-MSN-WEF
SUMMARY NOTICE OF (I) Proposed Settlement and Plan of Allocation;
(II) Settlement Fairness Hearing; AND (III) Motion for an Award of
Attorneys' Fees and Reimbursement of Litigation Expenses
TO: All persons and entities who purchased or otherwise acquired
the publicly-traded common stock of Evolent Health, Inc. ("Evolent"
or the "Company") between January 10, 2018 and May 28, 2019,
inclusive (the "Settlement Class Period"), and were damaged thereby
(the "Settlement Class").
THIS NOTICE WAS AUTHORIZED BY THE COURT. IT IS NOT A LAWYER
SOLICITATION. PLEASE READ THIS NOTICE CAREFULLY AND IN ITS
ENTIRETY.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the United States District Court
for the Eastern District of Virginia (the "Court"), that the
above-captioned litigation (the "Action") has been certified as a
class action for settlement purposes only on behalf of the
Settlement Class, except for certain persons and entities who are
excluded from the Settlement Class by definition as set forth in
the full printed Notice of (I) Proposed Settlement and Plan of
Allocation; (II) Settlement Fairness Hearing; and (III) Motion for
an Award of Attorneys' Fees and Reimbursement of Litigation
Expenses (the "Notice").
YOU ARE ALSO NOTIFIED that the Court-appointed Lead Plaintiffs,
Plymouth County Retirement Association and Oklahoma Police Pension
and Retirement System, on behalf of themselves and the
Court-certified Settlement Class in the Action, have reached a
proposed settlement of the Action for twenty-three million,
five-hundred thousand dollars ($23,500,000.00) (the "Settlement"),
that, if approved by the Court, will resolve all claims in the
Action.
A hearing will be held on November 18, 2022, at 10:00 a.m., before
the Honorable Michael S. Nachmanoff at the United States District
Court for the Eastern District of Virginia, Albert V. Bryan United
States Courthouse, 401 Courthouse Square, Courtroom 400,
Alexandria, VA 22314, to determine, among other things, whether:
(i) the proposed Settlement should be approved as fair, reasonable,
and adequate; (ii) the Judgment as provided under the Stipulation
and Agreement of Settlement (the "Stipulation") should be entered
dismissing the Action with prejudice; (iii) Lead Plaintiffs' motion
for an award of attorneys' fees and reimbursement of Litigation
Expenses should be approved; and (iv) the Plan of Allocation should
be approved by the Court as fair and reasonable. The capitalized
terms herein shall have the same meaning as they have in the
Stipulation.
The Court may adjourn the Settlement Hearing or any adjournment
thereof without further written notice of any kind to the
Settlement Class. Any updates regarding the Settlement Hearing,
including any changes to the date or time of the hearing or updates
regarding in-person, telephonic, or video conference appearances at
the hearing, will also be posted to the Settlement website,
www.EvolentSecuritiesLitigation.com.
If you are a member of the Settlement Class, your rights will be
affected by the pending Action and the Settlement, and you may be
entitled to share in the Settlement Fund. If you have not yet
received the Notice and Claim Form, you may obtain copies of these
documents by visiting the Settlement website at
www.EvolentSecuritiesLitigation.com or by contacting the Claims
Administrator at:
Evolent Securities Litigation
c/o A.B. Data, Ltd.
P.O. Box 173032
Milwaukee, WI 53217
(877) 354-3840
www.EvolentSecuritiesLitigation.com
info@EvolentSecuritiesLitigation.com
Copies of the Notice and the Claim Form are also available by
accessing the Court docket in this case, for a fee, through the
Court's Public Access to Court Electronic Records (PACER) system at
https://ecf.vaed.uscourts.gov/, or by visiting the Office of the
Clerk, United States District Court for the Eastern District of
Virginia, Albert V. Bryan United States Courthouse, 401 Courthouse
Square, Alexandria, VA 22314 during normal business hours.
Inquiries, other than requests for the Notice or a Claim Form or
for information about the status of a claim, may be made to Lead
Counsel:
SAXENA WHITE P.A.
Lester R. Hooker, Esq.
7777 Glades Rd., Suite 300
Boca Raton, FL 33434
lhooker@saxenawhite.com
If you are a member of the Settlement Class, in order to
potentially be eligible to receive a payment under the proposed
Settlement, you must submit a Claim Form postmarked or completed
online no later than December 16, 2022. If you are a Settlement
Class Member and do not submit a proper Claim Form, you will not be
eligible to share in the distribution of the net proceeds of the
Settlement, but you will nevertheless be bound by any judgments or
orders entered by the Court in the Action.
If you are a member of the Settlement Class and wish to exclude
yourself from the Settlement Class, you must submit a request for
exclusion such that it is received no later than October 28, 2022,
in accordance with the instructions set forth in the Notice. If you
properly exclude yourself from the Settlement Class, you will not
be bound by any judgments or orders entered by the Court in the
Action and you will not be eligible to share in the proceeds of the
Settlement.
Any objections to the proposed Settlement, Lead Plaintiffs' motion
for attorneys' fees and reimbursement of Litigation Expenses, or
the proposed Plan of Allocation must be filed with the Court and
delivered to representatives of Lead Counsel and Defendants'
Counsel such that they are received no later than October 28, 2022,
in accordance with the instructions set forth in the Notice.
PLEASE DO NOT CONTACT THE COURT, THE CLERK'S OFFICE, DEFENDANTS, OR
DEFENDANTS' COUNSEL REGARDING THIS NOTICE.
Dated: August 9, 2022
By Order of the Court
United States District Court
Eastern District of Virginia
EXPRESS INC: Summary Judgment Motions Pending in Chacon's 2nd Suit
-------------------------------------------------------------------
Express Inc. disclosed in its Form 10-Q filing for the quarterly
period ended July 30, 2022, filed with the Securities and Exchange
Commission on September 8, 2022, that motions for summary judgement
have been filed and are pending in the second representative action
Mr. Jorge Chacon brought against the Company alleging violations of
California state wage and hour statutes and other labor standard
violations.
In a complaint filed in January 2017 by Mr. Jorge Chacon in the
Superior Court for the State of California for the County of
Orange, certain subsidiaries of the Company were named as
defendants in a representative action alleging violations of
California state wage and hour statutes and other labor standards.
The lawsuit seeks unspecified monetary damages and attorneys'
fees.
In July 2018, former associate Ms. Christie Carr filed suit in
Alameda County Superior Court for the State of California naming
certain subsidiaries of the Company as defendants in a
representative action alleging violations of California State wage
and hour statutes and other labor standard violations. The lawsuit
seeks unspecified monetary damages and attorneys' fees.
On January 29, 2019, Mr. Jorge Chacon filed a second representative
action in the Superior Court for the State of California for the
County of Orange alleging violations of California state wage and
hour statutes and other labor standard violations, which was
removed to federal court by the Company and is now pending in the
United States District Court for the Central District of California
(the "District Court"). The lawsuit seeks unspecified monetary
damages and attorneys' fees. In June 2021, a portion of Mr.
Chacon's claims in this action were certified as a class action.
Plaintiff and the Company both filed Motions for Summary Judgment
on February 28, 2022.
Express, Inc. operates as an apparel and accessories retailer. It
offers apparel and accessories for women and men for work, casual,
jeanswear, and going-out occasions. The Company was formerly known
as Express Parent LLC and changed its name to Express, Inc. in May
2010. Express, Inc. was founded in 1980 and is headquartered in
Columbus, Ohio.
FLOWERS FOODS: Court Tosses O'Bryant Suit in Favor of Arbitration
-----------------------------------------------------------------
Judge Bruce Howe Hendricks of the U.S. District Court for the
District of South Carolina, Charleston Division, dismisses the
case, Charles O'Bryant, on behalf himself and all other similarly
situated, Plaintiff v. Flowers Foods, Inc., and Derst Baking
Company LLC, Defendants, Civil Action No. 2:21-cv-3501-BHH
(D.S.C.), in favor of arbitration.
The matter is before the Court on the Defendants' motion to dismiss
or, in the alternative to compel arbitration.
On June 8, 2015, O'Bryant entered into a Distributor Agreement with
Derst, a wholly-owned subsidiary of Flowers, whereby he purchased
rights to deliver the Defendants' fresh-baked products to customers
in a defined geographic territory. On Dec. 18, 2015, the Plaintiff
signed an Amendment to the Distributor Agreement that included,
among other things, an Arbitration Agreement which required
mandatory and binding arbitration of all disputes with Derst and
its affiliated companies. As consideration for this amendment, the
Plaintiff received valuable consideration, including substantive
revisions to his existing Distributor Agreement and payment of
additional money.
On Feb. 12, 2018, the Plaintiff purchased a second territory from
another independent distributor, thereby assuming obligations and
acquiring rights under a similar Distributor Agreement with Derst
as to the second territory. Later, he sold his first and second
territories to new owners on May 7, 2018 and Dec. 7, 2020,
respectively. Thus, the Plaintiff has not been a distributor
franchisee with Derst since Dec. 7, 2020.
The Plaintiff filed the instant suit, alleging that he was
misclassified as an independent contractor, rather than an employee
under the Fair Labor Standards Act ("FLSA"), and that the
Defendants failed to properly pay him in violation of the FLSA and
the South Carolina Payment of Wages Act ("SCPWA"). He brings this
suit as a putative class and collective action, seeking to
represent all other "similarly situated" distributors within the
"statutory period covered by this Complaint."
The Defendants contend that both the suit itself, and its specific
character as a putative class and collective action, are prohibited
by the Arbitration Agreement. At this time, one other distributor
seeks to join the case. That individual also signed a materially
similar arbitration agreement containing promises to arbitrate the
claims Plaintiff purports to bring on his behalf. (See
The Arbitration Agreement contains a class and collective action
waiver, requiring individual arbitration of the type of claims
asserted in the Plaintiff's complaint. The Court is informed that
prior to filing the instant motion to dismiss, the Defendants'
counsel explained the arbitration requirement to the Plaintiff's
counsel, but the Plaintiff has not consented to arbitration of his
claims. Therefore, the Defendants request that the Court dismisses
the lawsuit pursuant to Federal Rule of Civil Procedure 12(b)(1)
and the Federal Arbitration Act ("FAA"), 9 U.S.C. Section 1, et
seq., or, in the alternative, compel individual arbitration.
Under the Arbitration Agreement, Derst ("the Company") agreed to
pay for all filing fees and costs customarily associated with
American Arbitration Association ("AAA") arbitration, subject to
the arbitrator's ability to award the Company costs and fees as the
prevailing party. By its terms, both the agreement to arbitrate
covered claims and the class/collective action waiver are mutual,
the arbitration is conducted by a neutral arbitrator, and the
arbitrator has the authority to award the same damages and other
relief that would have been available in court under applicable
law, including attorneys' fees and costs. The Arbitration Agreement
states that it will be governed by the FAA, as well as Georgia law
to the extent Georgia law is not inconsistent with the FAA.
Judge Hendricks first examines the validity of the Arbitration
Agreement. He opines that (i) the Arbitration Agreement is clear,
unambiguous, and provided the Plaintiff with ample and prominent
notice of his rights; (ii) the Arbitration Agreement is supported
by adequate consideration under Georgia law, including monetary
consideration, favorable amendment of other terms under the
Distributor Agreement, and the mutuality of the obligation to
arbitrate disputes with Derst agreeing to pay the full costs of
arbitration; (iii) the terms of the Arbitration Agreement are fair
and equitable, and it allows the arbitrator to award the Plaintiff
the same damages and other relief to which he may otherwise be
entitled in court; (iv) a party's reluctance to enter into an
arbitration agreement, by itself, is insufficient to demonstrate
procedural unconscionability; and (v) the Plaintiff fails to meet
his burden of showing the Arbitration Agreement is unenforceable.
In sum, the Plaintiff's Arbitration Agreement with Derst is clear,
unambiguous, and balanced, and it contains mutual obligations along
with other safeguards. As such, it is enforceable under both
federal and Georgia law.
Judge Hendricks then considers whether the dispute in question
falls within the scope of the Arbitration Agreement. At first
blush, he says the inquiry has a simple answer: The Plaintiff's
misclassification claims under state and federal law are expressly
covered by the Arbitration Agreement. It is indisputable that the
claims asserted in the lawsuit are "Covered Claims," as that term
is defined in the Arbitration Agreement. Nor is there meaningful
dispute that the Plaintiff's asserted claims are subject to
individual, as opposed to class or collective, arbitration.
Moreover, the residual clause is inapplicable, rendering
enforcement of the Arbitration Agreement appropriate under the
FAA.
Judge Hendricks further says the Plaintiff does not qualify for the
transportation workers exemption. First, the Plaintiff does not
work in the "transportation industry" because the Defendants are
bakeries, not carriers such as a railroad, a maritime shipping
company, or a trucking company. Second, he was not actually
"engaged in foreign or interstate commerce" in the sense relevant
to Section 1's residual clause because his deliveries were purely
intrastate. The Plaintiff did not cross state lines while
delivering the products he sold to customers within the State of
South Carolina. Therefore, the residual clause of the FAA is not
properly applied, and the Plaintiff cannot establish that he is an
exempt transportation worker under Section 1 of the FAA.
Because the Plaintiff is not a transportation worker within the
meaning of Section 1 of the FAA and because he entered into a
binding arbitration agreement with the Defendants, Judge Hendricks
grants the Defendants' motion to dismiss in favor of arbitration.
The Clerk of Court will enter judgment in favor of the Defendants
accordingly and is instructed to close the case. If, after the
arbitration, any party seeks further relief from the Court, the
Clerk of the Court will assign any such motion or petition to Judge
Hendricks.
A full-text copy of the Court's Sept. 21, 2022 Opinion & Order is
available at https://tinyurl.com/3rj6ptwe from Leagle.com.
GC PIZZA: Bid for Partial Declaratory Summary Judgment OK'd in Part
-------------------------------------------------------------------
In the case, VINCENT RODRIGUEZ, Individually and on behalf of all
others similarly situated, Plaintiff v. GC PIZZA LLC d/b/a
"Domino's Pizza", Defendant, Case No. 4:20-CV-3106 (D. Neb.), Judge
John M. Gerrard of the U.S. District Court for the District of
Nebraska issued a Memorandum and Order:
a. granting in part and denying in part the Defendant's motion
for partial declaratory summary judgment;
b. denying the Plaintiff's cross-motion for partial summary
judgment;
c. denying as moot the Plaintiff's motion to strike; and
d. denying the Defendant's motion to strike.
In this class and collective action, Rodriguez represents himself
and other similarly situated delivery drivers employed by the
Defendant between December 2018 and December 2021. The Defendant is
the owner of several Domino's Pizza restaurants in Nebraska. The
Plaintiff's operative complaint, filing 42, alleges that the
Defendant failed to properly reimburse drivers for costs expended
for the benefit of the employer, causing drivers' wages to drop
below the minimum wage in violation of 29 U.S.C. Section 206 and
Neb. Rev. Stat. Section 48-1203.
The Defendant owns and operates Domino's franchise restaurants in
Nebraska, and it hires drivers to use their personal vehicles to
deliver pizzas and other products. The Plaintiff represents a
conditionally certified class under 29 U.S.C. Section 216(b),
containing delivery drivers employed by the Defendant between Dec.
14, 2018, and Dec. 14, 2021. He also represents the same class in a
Fed. R. Civ. P. 23 class action for the NWHA claims.
The Defendant paid drivers $7.25 per hour and claimed a tip credit
of $1.75 to meet the $9 per hour minimum wage pursuant to Neb. Rev.
Stat. Section 48-1203(2). If drivers engaged in non-tipped work,
drivers were paid $9 per hour without any tip credit. The Defendant
requires drivers to use and maintain safe, legally operable, and
insured vehicles. It does not maintain its own vehicles and drivers
are reimbursed at a rate of $2 per delivery to "compensate drivers
for the business use of their personal vehicles."
The Plaintiff asserts the Defendant violated the Fair Labor
Standards Act (FLSA), 29 U.S.C. Section 201 et seq., and the
Nebraska Wage and Hour Act (NWHA), Neb. Rev. Stat. Section 48-1201
et seq., in two ways: (1) the $2-per-delivery reimbursement rate
unreasonably under-approximated the costs of using a personal
vehicle for the benefit of the defendant, and (2) the Defendant
required employees to pay for their own uniforms. Both policies,
according to the Plaintiff, resulted in a kickback to the Defendant
that unlawfully dropped delivery driver wages below the minimum
wage.
The Plaintiff alleges the Defendant's vehicle cost reimbursement
policy resulted in an effective wage of $6.46 per hour, below both
the federal and Nebraska minimum wages. To arrive at this figure,
the Plaintiff estimates that each delivery averaged at least 6
miles, thus drivers were reimbursed at approximately $0.333 per
mile ($2 per delivery divided by 6 miles). But the Plaintiff
alleges the Internal Revenue Service standard business mileage rate
("IRS rate") is a reasonable approximation for the value an
employee's personal vehicle provides to an employer. The IRS rate
was $0.535 and $0.58 per mile between 2018 and 2021.
The Plaintiff compared the IRS rate to the rate paid by the
Defendant and alleged it under-reimbursed its delivery drivers by
at least $0.21 per mile, or by $1.27 per delivery. Using the
approximation of two deliveries per hour, he calculated this
disparity caused delivery drivers' wages to drop below the minimum
wage ($9 per hour) by $2.54 per hour, for an effective wage of
$6.46 per hour.
The issues now before the Court are the Defendant's motion for
partial declaratory summary judgment on limited issues of law and
the Plaintiff's cross-motion for summary judgment on a similar
issue. The parties primarily ask the Court to pick a side on a
district court split regarding how to interpret 29 C.F.R. Sections
531.35 and 778.217, which generally require an employer's
reimbursement of employee expenses incurred on the employer's
behalf to "reasonably approximate" the expense incurred. The
Defendant asks the Court to declare an employer may comply with the
anti-kickback regulation by using any reasonable approximation of
employee expenses, while the Plaintiff would have the Court declare
that employers must either (a) track and reimburse actual vehicle
costs or (b) reimburse expenses at the IRS rate.
The Defendant has asked the Court to take the following actions:
a. Declare that the Reasonable Approximation Standard applies
to determine whether the Defendant complied with the anti-kickback
regulation and the minimum wage requirement, 29 C.F.R. Section
531.35;
b. Declare that compliance with anti-kickback regulation is
measured by an individual employee's actual employment-related
vehicle expense, not by the IRS rate;
c. Declare that in order to prevail in this case, any
plaintiff must prove, by a preponderance of evidence standard: (a)
the defendant failed to reimburse actual expenses, or its policy
failed to reasonably approximate expenses, and (b) the resulting
under-reimbursement caused the employee's cash wage to fall below
the federal minimum wage;
d. Declare that the Defendant will be entitled to costs if
the Plaintiff fails to meet the burden of proof; and
e. Declare that under both the FLSA and the NWHA, employers
may apply a tip credit to any alleged under-reimbursement.
The Plaintiff, on the other hand, has asked the Court to adopt the
IRS rate as the proper method to reasonably approximate employee
expenses when an employee uses a personal vehicle for an employer's
benefit. He also moved to strike certain evidence contained in the
defendant's motion for partial declaratory summary judgment.
Finally, the Defendant moved to strike certain arguments in the
Plaintiff's brief.
First, Judge Gerrard finds the "Reasonable Approximation" standard
applies. He says while the regulations may be ambiguous, neither
interpretation offered by the parties fulfills the stringent
guidelines for Auer deference in Auer v. Robbins, 519 U.S. 452, 455
(1997), under Kisor v. Wilkie, 139 S.Ct. 2400, 2415 (2019), and
Voigt v. Coyote Creek Mining Company, LLC, 999 F.3d 555, 561 (8th
Cir. 2021). The resolution of the meaning of "reasonably
approximate" in the regulations is a question in a judge's
"bailiwick," and the agency interpretations do not provide any
additional clarity, the Court cannot glean from the regulations'
plain text.
Second, Judge Gerrard holds that the IRS rate is probative of
whether the Defendant reasonably approximated employees' vehicle
expenses. He says the Defendant had no obligation under either 29
C.F.R. Sections 531.35 or 778.217 to track actual expenses, but
neither did its employees. Thus, its use of approximations of
employee vehicle expenses means that the Plaintiffs can provide
evidence that its approximation was unreasonable and, therefore,
the drivers "performed work for which they were not properly
compensated."
Third, Judge Gerrard says the Plaintiffs are allowed to provide
their own approximations of expenses and do not need to prove
actual unreimbursed expenses. The collective plaintiffs can provide
approximations of their expenses as a method of comparison,
including the IRS rate or other calculations, which would lead to a
reasonable inference that the drivers were undercompensated for
labor. The burden will shift to the Defendant to rebut the
inference proffered by the Plaintiffs. Whether the Defendant's
reimbursement rate was reasonable is, again, a fact question to be
determined at the close of discovery or at trial.
Fourth, Judge Gerrard finds that the Defendant may be entitled to
costs, but he will make no declaration at this time. At this point,
the Court is unwilling to commit to awarding costs to the Defendant
should it prevail in this lawsuit. Several factors may weigh in
favor of the decision to award (or not award), such as any bad
faith among the parties, the parties' overall financial resources,
or any other reason the Court deems relevant at the closing of the
case. A lot can change between the Order and the end of the case.
The Court cannot now provide a rationale for approving or
disapproving costs, and so it will refrain from making any sort of
declaration at this point.
Fifth, Judge Gerrard holds that the Defendant may not apply a tip
credit to any alleged under-reimbursement under either the FLSA or
the NWHA. He finds that the Defendant has no tip credit under the
FLSA to apply to any alleged under-reimbursement. The regulations
state, and agency guidance confirms, that the Defendant cannot
claim a tip credit for purposes of FLSA minimum wage compliance.
Moreover, an employer cannot utilize an employee's tips to offset
reimbursements because doing so would mean the employee is using
their tips to pay for the costs of running a business, rather than
using tips to supplement the wages owed to them under Neb. Rev.
Stat. Section 48-1203. For these reasons, the Defendant cannot
retroactively claim a tip credit under the NWHA for unreimbursed
expenses the employee made on behalf of the employer.
Finally, the final issue to take up is the parties' discussion of
whether an employer must reimburse employees for fixed costs. The
Defendant asked the Court to strike the portions of the Plaintiff's
argument related to fixed costs because of the one-way intervention
protection rule. But the Plaintiff did not make an argument about
fixed costs -- instead, he argued that the Defendant should not be
able to argue about fixed costs.
Judge Gerrard finds that the Defendant has already waived its
one-way intervention protection. However, neither party briefed the
issue of whether, as a matter of law, fixed costs should be
reimbursed by an employer. Judge Gerrard will not address the fixed
cost issue because both parties insist the other cannot talk about
it, and neither party seems prepared for a ruling on this issue.
The motions to strike will both be denied.
In light of the foregoing, Judge Gerrard grants in part and denies
in part the Defendant's motion for partial declaratory summary
judgment as set forth. He denies the Plaintiff's cross-motion for
partial summary judgment and denies as moot the Plaintiff's motion
to strike. Finally, he denies the Defendant's motion to strike.
A full-text copy of the Court's Sept. 21, 2022 Memorandum & Order
is available at https://tinyurl.com/22357uxa from Leagle.com.
GENENTECH INC: Court OKs Stipulation on Class Certification
-----------------------------------------------------------
In the class action lawsuit captioned as Wehner v. Genentech, Inc.,
et al, Case No. 3:20-cv-06894 (N.D. Cal.), the Hon. Judge Richard
Seeborg entered an order granting stipulation regarding class
certification.
The suit alleges violation of the Employee Retirement Income
Security Act involving Breach of Fiduciary Duties.
Genentech is an American biotechnology corporation which became a
subsidiary of Roche in 2009. Genentech Research and Early
Development operates as an independent center within Roche.
GOLDEN NUGGET: Eschbach Sues for Breach of Fiduciary Duties
-----------------------------------------------------------
STEVEN ESCHBACH, ANTHONY FRANCHI, CARL GROVE, ROBERT CORWIN, and
MINDY BASSIN, Plaintiffs v. TILMAN FERTITTA, STEVEN L. SCHEINTHAL,
G. MICHAEL STEVENS, MICHAEL S. CHADWICK, SCOTT KELLY, and RICHARD
L. LIEM, Defendants, Case No. 2022-0799-JTL (Del. Ch., Sept. 14,
2022) is a verified class action complaint brought by the
Plaintiffs, on behalf of themselves and similarly situated former
public stockholders of Golden Nugget Online Gaming, Inc., asserting
breach of fiduciary duty claims arising from DraftKings Inc.'s
acquisition of GNOG, referred here as the Transaction, against
GNOG's controlling stockholder Tilman Fertitta and the former
members of GNOG's board of directors.
On August 9, 2021, GNOG and DraftKings announced that DraftKings
would acquire GNOG in an all-stock transaction at an implied equity
value of approximately $1.56 billion. In connection with the
Transaction, public stockholders of GNOG received 0.365 of a share
of New DraftKings Class A common stock for each GNOG share they
owned. The Transaction closed on May 5, 2022.
The Plaintiffs challenge DraftKings' acquisition of GNOG at a price
that was unfair to GNOG's public stockholders, says the suit.
According to the complaint, Director Defendants breached their
fiduciary duties to Plaintiffs and the Class by knowingly
prioritizing the personal, business, strategic, financial, or other
interests of Fertitta above those of the unaffiliated GNOG
stockholders, and by agreeing to and entering into the Transaction
knowing that the process and price of the Transaction were not
entirely fair to Plaintiffs and the Class. The Director Defendants
also breached their duty of candor by issuing materially misleading
and/or omissive information statements, the suit asserts.
As a result, Plaintiffs and the Class were allegedly harmed by the
failure to receive fair consideration for their GNOG shares, the
value of their investment was diminished, and they suffered damages
in an amount to be determined at trial.
Golden Nugget Online Gaming, Inc. is an online casino and sports
betting operator.[BN]
The Plaintiffs are represented by:
Kimberly A. Evans, Esq.
BLOCK & LEVITON LLP
3801 Kennett Pike, Suite C-305
Wilmington, DE 19807
Telephone: (302) 499-3600
- and -
Joel Fleming, Esq.
Amanda Crawford, Esq.
BLOCK & LEVITON LLP
260 Franklin Street, Suite 1860
Boston, MA 02110
Telephone: (617) 398-5600
- and -
Jeremy Friedman, Esq.
David Tejtel, Esq.
FRIEDMAN OSTER & TEJTEL PLLC
493 Bedford Center Road, Suite 2D
Bedford Hills, NY 10507
Telephone: (888) 529-1108
- and -
D. Seamus Kaskela, Esq.
Adrienne Bell, Esq.
KASKELA LAW LLC
18 Campus Boulevard, Suite 100
Newtown Square, PA 19073
Telephone: (484) 258-1585
- and -
Peter B. Andrews, Esq.
Craig J. Springer, Esq.
David M. Sborz, Esq.
Andrew J. Peach, Esq.
Jackson E. Warren, Esq.
ANDREWS & SPRINGER LLC
4001 Kennett Pike, Suite 250
Wilmington, DE 19807
Telephone: (302) 504-4957
- and -
John Vielandi, Esq.
David MacIsaac, Esq.
LABATON SUCHAROW
140 Broadway
New York, NY 10005
Telephone: (212) 907-0700
- and -
Ned Weinberger, Esq.
LABATON SUCHAROW LLP
300 Delaware Avenue Suite 1340
Wilmington, DE 19801
Telephone: (302) 573-2540
- and -
W. Scott Holleman, Esq.
JULIE & HOLLEMAN LLP
157 East 86th Street
New York, NY 10028
Telephone: (929) 415-1020
- and -
Michael J. Barry, Esq.
Christine M. Mackintosh, Esq.
John C. Kairis, Esq.
GRANT & EISENHOFER P.A.
123 Justison Street, 7th Floor
Wilmington, DE 19801
Telephone: (302) 622-7000
- and -
Blake A. Bennett, Esq.
COOCH AND TAYLOR, P.A.
The Nemours Building
1007 N. Grange Street, Suite 1120
Wilmington, DE 19801
Telephone: (302) 984-3800
GOLI NUTRITION: Mislabeled Ashwagandha Gummies, Caputo Suit Says
----------------------------------------------------------------
Heather Caputo, individually on behalf of herself and all others
similarly situated, Plaintiff v. Goli Nutrition Inc. and Better
Nutritionals LLC, Defendants, Case No. 1:22-cv-07723 (S.D.N.Y.,
Sept. 9, 2022) is a class action seeking remedy from the deceptive
and misleading business practices of the Defendants with respect to
the marketing and sale of their Goli Nutrition Ashwagandha Gummies
in violation of the New York General Business Law and various state
warranty laws.
According to the complaint, the Plaintiff and similarly situated
consumers relied on the Defendants' misrepresentations that the
product provides sexual function benefits, weight loss and weight
management benefits, improve physical performance, and clinically
proven to help maintain normal cortisol levels. Absent these
misrepresentations, the Plaintiff and Class Members would not have
purchased the product. Given that Plaintiff and Class Members paid
for a product they would not otherwise have purchased and/or paid a
premium for the product based on Defendants' misrepresentations,
Plaintiff and Class Members suffered an injury in the amount of the
purchase price of the product and/or premium paid, says the suit.
Despite Defendants' marketing and labeling, scientific studies
demonstrate that the product does not provide sexual function
benefits, weight loss and weight management benefits, improve
physical performance, or clinically proven to help maintain normal
cortisol levels as Defendants deceive consumers to believe, the
suit asserts.
Goli Nutrition Inc. is a Delaware corporation with its headquarters
in West Hollywood, California. It manufactures, markets,
advertises, and distributes the product throughout the United
States.[BN]
The Plaintiff is represented by:
Jason P. Sultzer, Esq.
Daniel Markowitz, Esq.
THE SULTZER LAW GROUP P.C.
85 Civic Center Plaza, Suite 200
Poughkeepsie, NY 12601
Telephone: (845) 483-7100
Facsimile: (888) 749-7747
E-mail: sultzerj@thesultzerlawgroup.com
markowitzd@thesultzerlawgroup.com
- and -
Nick Suciu III, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
6905 Telegraph Rd., Suite 115
Bloomfield Hills, MI 48301
Telephone: (313) 303-3472
Facsimile: (865) 522-0049
E-mail: nsuciu@milberg.com
- and -
Gary M. Klinger, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
227 W. Monroe Street, Suite 2100
Chicago, IL 60606
Telephone: (866) 252-0878
Facsimile: (865) 522-0049
E-mail: gklinger@milberg.com
- and -
Zoe T. Aaron, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
405 E 50th Street
New York, NY 10022
Telephone: (630) 796-0903
Facsimile: (865) 522-0049
E-mail: zaaron@milberg.com
GOTOGATE INC: Faces Bent Suit Over Improper Flight Cancellation
---------------------------------------------------------------
MARK BENT, individually and on behalf of all others similarly
situated, Plaintiff v. GOTOGATE, INC., Defendant, Case No.
1:22-cv-23084-DPG (S.D. Fla., Sept. 23, 2022) alleges that the
Defendant failed to properly assist the Plaintiff in cancellation
of flight request.
According to the complaint, the Defendant's Terms and Conditions on
flight cancellation, it reassures that it processes refunds when a
customer requests a cancellation. More specifically, the Defendant
takes the false promise in handling flight cancellation. The
Defendant's marketing practices directly conflict with its Terms
and Conditions. It claims to assist its customers with navigating
cancellation refund requests with third party travel companies, and
requires that the customers, like the Plaintiff, use the Defendant
to request a refund from airlines, yet expressly denies that the
Defendant has any influence over the refund process, says the
suit.
The Plaintiff has never received any refund from the Defendant. The
Defendant's scheme to steal consumer airline refunds is their
"biscoff and coffee" and standard business practice, the suit
added.
GOTOGATE, INC. is an online travel agency and seller of air travel.
[BN]
The Plaintiff is represented by:
Brian W. Warwick, Esq.
Janet R. Varnell, Esq.
Matthew T. Peterson, Esq.
Erika Willis, Esq.
VARNELL & WARWICK, P.A.
1101 E. Cumberland Ave., Ste. 201h, #105
Tampa, FL 33602
Telephone: (352) 753-8600
Facsimile: (352) 504-3301
Email: jvarnell@vandwlaw.com
bwarwick@vandwlaw.com
mpeterson@vandwlaw.com
ewillis@vandwlaw.com
kstroly@vandwlaw.com
- and -
Christopher J. Brochu, Esq.
BROCHU LAW, PLLC
841 Prudential Drive, Suite 1200
Jacksonville, FL 32207
Telephone: (904) 201-1771
Email: C.BROCHU@BROCHULAW.COM
HALIFAX HEALTH: Zadneprovskaya Files Suit in Fla. Cir. Ct.
----------------------------------------------------------
A class action lawsuit has been filed against Halifax Health, Inc.
case is styled as Yelena Zadneprovskaya, individually and on behalf
of all those similarly situated v. Halifax Health, Inc., Case No.
2022-31406-CICI (Fla. Cir. Ct., Volusia Cty., Sept. 21, 2022).
The case type is stated as "Other Civil - Circuit."
Halifax Health -- https://halifaxhealth.org/ -- has been named a
top 50 hospital in the nation for cardiovascular care for three
consecutive years.[BN]
The Plaintiff is represented by:
Jennifer G Simil, Esq.
THE LAW OFFICES OF JIBRAEL S. HINDI
110 SE 6th Street, Ste. 1744
HARVARD BUSINESS: Johnson Files Suit in W.D. Michigan
-----------------------------------------------------
A class action lawsuit has been filed against Harvard Business
Publishing Corporation. The case is styled as Carlos Johnson,
individually and on behalf of all others similarly situated v.
Harvard Business Publishing Corporation, Case No.
1:22-cv-00802-HYJ-RSK (W.D. Mich., Aug. 31, 2022).
The nature if suit is stated as Other Fraud.
Harvard Business Publishing -- https://www.harvardbusiness.org/ --
was founded in 1994 as a not-for-profit, wholly owned subsidiary of
Harvard University, with a focus on improving business management
practices.[BN]
The Plaintiff is represented by:
Frank Hedin, Esq.
HEDIN HALL LLP
1395 Brickell Ave., Suite 1140
Miami, FL 33131
Phone: (305) 357-2107
Fax: (305) 200-8801
Email: fhedin@hedinhall.com
- and -
Gregory A. Mitchell, Esq.
Sharon S. Almonrode, Esq.
E. Powell Miller, Esq.
THE MILLER LAW FIRM PC
950 W University Dr., Ste. 300
Rochester, MI 48307
Phone: (248) 841-2200
Email: gam@millerlawpc.com
ssa@millerlawpc.com
epm@millerlawpc.com
- and -
Joseph I. Marchese, Esq.
Philip L. Fraietta, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Phone: (646) 837-7150
Fax: (212) 989-9163
Email: pfraietta@bursor.com
jmarchese@bursor.com
The Defendant is represented by:
Whitney Smith, Esq.
KELLEY DRYE & WARREN, LLP (NJ)
One Jefferson Rd., 2nd Fl.
Parsippany, NJ 07054
Phone: (973) 503-5964
Email: wsmith@kelleydrye.com
HAYMOUNT URGENT: Hassett Files Suit in D. Connecticut
-----------------------------------------------------
A class action lawsuit has been filed against Haymount Urgent Care,
PC, et al. The case is styled as Hassett & George, PC v. Haymount
Urgent Care, P.C., Robert A. Clinton, Jr., Indigo Installations,
Inc., Christopher A. Turrentine, individually, and on behalf of all
those similarly situated, Case No. 3:22-mc-00074-SVN (D. Conn.,
Aug. 29, 2022).
The nature of suit is stated as Other Statutory Actions for Motion
to Quash.
Haymount Urgent Care, PC -- https://haymountuc.com/ -- handle
everything from lacerations, broken bones and infections, to
testosterone replacement, obesity, diagnostic testing, and VA
disability consultations.[BN]
The Plaintiff is represented by:
Daniel Patrick Quinlan, Esq.
WINGET, SPADAFORA & SCHWARTZBERG, LLP
201 Broad Street, Suite 1000
Stamford, CT 06901
Phone: (203) 328-1200
Email: quinlan.d@wssllp.com
HERCULES FORWARDING: Pempek Sues Over Failure to Pay Overtime Wages
-------------------------------------------------------------------
Elizabeth Pempek, on behalf of herself and all other persons
similarly situated, known and unknown v. HERCULES FORWARDING, INC.,
and MELANIE BURNHAM, individually, Case No. 1:22-cv-04760 (N.D.
Ill., Sept. 6, 2022), is brought arising under the Fair Labor
Standards Act, the Illinois Minimum Wage for the Defendants'
failure to pay overtime wages to Plaintiff and other hourly current
and former employees, and under the Biometric Information Privacy
Act ("BIPA") for the unauthorized collection and retention of
Plaintiff's and similarly situated employees' biometric
information.
The Defendants' biometric timekeeping system required Plaintiff and
other employees to scan their fingerprints to record when they
clocked in or out of a shift. During one or more individual
workweeks during the prior three years, the Plaintiff worked for
the Defendants in excess of 40 hours per week but were not paid
overtime at a rate of one and one-half times their regular rates of
pay, says the complaint.
The Plaintiff worked for the Defendants as an hourly employee from
May 2002 until December 20, 2021.
Hercules Forwarding is an asset-based motor carrier incorporated in
California and headquartered in New Westminster, British
Columbia.[BN]
The Plaintiff is represented by:
Gail S. Eisenberg, Esq.
Alexander Loftus, Esq.
David A. Eisenberg, Esq.
LOFTUS & EISENBERG, LTD.
161 N. Clark St., Suite 1600
Chicago, IL 60601
Phone: (312) 899-6625
Email: gail@loftusandeisenberg.com
alex@loftusandeisenberg.com
david@loftusandeisenberg.com
HP INC: Twardzik Appeals Case Dismissal to 3rd Cir.
---------------------------------------------------
Plaintiff Mark Twardzik filed an appeal from a court ruling entered
in the lawsuit entitled MARK TWARDZIK, individually and on behalf
of all others similarly situated, Plaintiff v. HP INC., NVIDIA
CORPORATION, Defendants, Case No. 1:21-cv-00396-SB, in the U.S.
District Court for the District of Delaware.
The Plaintiff brought this action on March 18, 2021, on behalf of
himself and other similarly-situated consumers across the U.S. who
purchased an HP laptop computer containing the slowed variant of
the NVIDIA GeForce MX150 graphics processor unit. The Defendants
allegedly engaged in a deceptive and misleading marketing campaign
to sell computer hardware and laptop computers containing such
hardware by advertising such hardware as a single brand with
uniform specifications when in fact, the product line consists of
two distinct models, with a substantial performance disparity
between them. Consumers who purchased laptops containing the
inferior hardware received computers that were materially slower
than advertised and unfit for their intended purpose. The
Defendants' greed-driven scheme is at the expense of consumers
across the country and in violation of applicable law, says the
suit.
On January 25, 2022, Judge Stephanos Bibas entered a Memorandum
Opinion and an Order granting Defendants' August 27, 2021 motion to
dismiss the case with prejudice.
The Plaintiff filed a motion for reconsideration on February 8,
2022.
On August 3, 2022, Judge Bibas entered a Memorandum Opinion and an
Order denying the Plaintiff's request.
The appellate case is captioned as Mark Twardzik v. HP Inc, et al.,
Case No. 22-2650, in the United States Court of Appeals for the
Third Circuit, filed on Sept. 9, 2022.[BN]
Plaintiff-Appellant MARK TWARDZIK, on behalf of himself and all
others similarly situated, is represented by:
Nicholas A. Migliaccio, Esq.
Jason S. Rathod, Esq.
MIGLIACCIO & RATHOD
412 H Street, N.E. Suite 302
Washington, DC 20002
Telephone: (202) 470-3520
- and -
P. Bradford deLeeuw, Esq.
1301 Walnut Green Road
Wilmington, DE 19807
Telephone: (302) 274-2180
Defendants-Appellees HP INC. and NVIDIA CORP. are represented by:
Kelly E. Farnan, Esq.
RICHARDS LAYTON & FINGER
920 North King Street
One Rodney Square
Wilmington, DE 19801
Telephone: (302) 651-7705
- and -
Alan E. Schoenfeld, Esq.
Stephanie Simon, Esq.
WILMER CUTLER PICKERING HALE & DORR
7 World Trade Center
250 Greenwich Street
New York, NY 10007
Telephone: (212) 937-7294
IDEANOMICS INC: Court Dismisses Lundy v. Ideanomics Inc., et al.
----------------------------------------------------------------
Ideanomics Inc. disclosed in its Form 10-Q filing for the quarterly
period ended March 31, 2022, filed with the Securities and Exchange
Commission on September 9, 2022, that the court has dismissed in
full the case captioned Lundy v. Ideanomics Inc. et al., and the
plaintiffs' motion to amend their complaint is pending.
On June 28, 2020, a purported securities class action, captioned
Lundy v. Ideanomics Inc. et al., was filed in the United States
District Court for the Southern District of New York against the
Company and certain current officers and directors of the Company.
Additionally, on July 7, 2020, a purported securities class action
captioned Kim v. Ideanomics Inc. et al, was filed in the Southern
District of New York against the Company and certain current
officers and directors of the Company.
Both cases alleged violations of Section 10(b) and 20(a) of the
Exchange Act arising from certain purported misstatements by the
Company beginning in September 2020 regarding its Ideanomics China
division.
On November 4, 2020, the Lundy and Kim actions were consolidated
and the litigation is now titled "In re Ideanomics, Inc. Securities
Litigation."
In December 2020, the Court appointed Rene Aghajanian as lead
plaintiff and an amended complaint was filed in February 2021,
alleging violations of Section 10(b) and 20(a) of the Exchange Act
arising from certain purported misstatements by the Company
beginning in March 2020 regarding its Ideanomics China division and
seeking damages. The defendants filed a motion to dismiss on May 6,
2021.
On March 15, 2022, the Court granted Defendants' motions to dismiss
in full and dismissed Plaintiff's complaint.
On April 14, 2022, Plaintiff sought leave to amend its complaint
and Defendants opposed that request. The Court has not yet ruled on
Plaintiff's request to amend the complaint.
Ideanomics, Inc. is a diversified solutions provider for electric
mobility. The company provides turn-key vehicle, finance and
leasing, and energy management services for commercial fleet
operators. The Company is headquartered in New York, NY, with
operations in the U.S., China, Ukraine, and Malaysia.
IDEANOMICS INC: Rudani Suit Settlement Gets Final Court Approval
----------------------------------------------------------------
Ideanomics Inc. disclosed in its Form 10-Q filing for the quarterly
period ended March 31, 2022, filed with the Securities & Exchange
Commission on September 9, 2022, that the court granted final
approval of the $5.0 million settlement in the purported class
action captioned Rudani v. Ideanomics, Inc. et al.
On July 19, 2019, a purported class action, now captioned Rudani v.
Ideanomics, Inc. et al., was filed in the United States District
Court for the Southern District of New York against the Company and
certain of its then current and former officers and directors. The
Amended Complaint alleged violations of Section 10(b) and 20(a) of
the Securities Exchange Act of 1934. Among other things, the
Amended Complaint alleged purported misstatements made by the
Company in 2017 and 2018, seeking damages. As part of a mediation,
the parties reached a settlement for $5.0 million. The Court
granted final approval of the settlement on January 25, 2022.
Ideanomics, Inc. is a New York-based diversified solutions provider
for electric mobility. The company provides turn-key vehicle,
finance and leasing, and energy management services for commercial
fleet operators.
IDEANOMICS INC: Timios Files Insurance Claim After Class Suit Deal
------------------------------------------------------------------
Ideanomics Inc. disclosed in its Form 10-Q filing for the quarterly
period ended June 30, 2022, filed with the Securities and Exchange
Commission on September 9, 2022, that Timios filed a claim with its
insurer to recover a portion of lost revenues and profits for the
period from July 26, 2021 through January 27, 2022, following
settlement of a class action lawsuit that was filed against it as a
result of a systems outage.
The Company's real estate services subsidiary, Timios, experienced
a systems outage that was caused by a cybersecurity incident.
Timios has engaged leading forensic information technology firms
and legal counsel to assist its investigation into the incident.
Although Timios is actively managing the impact of the
cybersecurity incident, it has caused a delay or disruption to
parts of Timios' business, including its ability to perform its
mortgage title, closing and escrow services offerings during the
reporting period. Timios has since recovered their operation
capabilities. The cybersecurity incident has had a material adverse
impact on Timios' revenues. Daily orders are increasing and the
company anticipates that a significant amount of the business lost
immediately after the cybersecurity incident will be recovered in
2022, although there can be no assurances in this regard. Timios
promptly notified third-parties who may have been affected by this
incident, and its insurer has offered a one year credit monitoring
service to those who may have been affected.
Timios has since recovered their operational capabilities, and has
implemented multiple safeguards against future incidents, including
but not limited to the establishment of a Chief Information
Security Officer and a Security Operations Center that monitors the
system against cyber threats twenty-four hours a day. Timios still
has yet to recover a significant portion of business lost as a
result of the incident. Timios is uncertain to what degree any
further revenue will be recovered.
A class action lawsuit was filed against Timios as a result of the
systems outage, which was settled within the limits of its
insurance coverage. Timios has filed a claim with its insurer to
recover a portion of the lost revenues and profits for the period
from July 26, 2021 through January 27, 2022.
Ideanomics, Inc. is a diversified solutions provider for electric
mobility. The company provides turn-key vehicle, finance and
leasing, and energy management services for commercial fleet
operators. The Company is headquartered in New York, NY, with
operations in the U.S., China, Ukraine, and Malaysia.
IMPAC MORTGAGE: Files Notice of Class Cert. in Maryland Action
--------------------------------------------------------------
Impac Mortgage Holdings, Inc. disclosed in its Form 8-K filing
dated September 7, 2022 filed with the Securities and Exchange
Commission on September 8, 2022, that the Form 8-K is being filed
by the Company to satisfy certain orders of the Circuit Court of
Baltimore City regarding notice in the matter Curtis J. Timm, et.
al. v. Impac Mortgage Holdings, Inc. et. al., Case
No. 24-C-11-008391 ("Maryland Action").
On August 8, 2022, the Circuit Court, Judge Lawrence P.
Fletcher-Hill, entered an Amended Order Certifying Class and
Providing for Class Notice and Final Hearing
("Class Certification Order"), which certified a class of all
owners of the Company's Series B Preferred stock from the close of
the tender offer on June 29, 2009 to the date Final Judgment in
the Maryland Action attains finality ("Series B Preferred Class").
On August 29, 2022, the Circuit Court approved the form and
contents of a notice to the members of the Series B Preferred
Class (the "Notice to Series B Preferred Class").
The Notice to Series B Preferred Class, as well as the complaints
and primary papers in the Maryland Action, including the Circuit
Court’s opinions and orders, are available for review on the
Class Notice website at
www.impacmortgageholdingsseriesbpreferredclassaction.com, and on
the Company's website at
https://ir.impaccompaines.com/series-b-preferred-class-action.
According to the Company's Form 8-K filing, "If you have any
questions about the Maryland Action, the Notice to Series B
Preferred Class, the proposed Final Judgment or the Final Hearing
(each as defined in the Class Certification order), you should
consult your own counsel, or direct your questions to Plaintiffs'
Class Counsel, John B. Isbister, Daniel S. Katz, or Tydings &
Rosenberg LLP, in the Maryland Action, at 1 East Pratt St.,
Suite 901, Baltimore, MD 21202."
Impac Mortgage Holdings, Inc. operates as an independent
residential mortgage lender in the United States. It operates
through three segments: Mortgage Lending, Real Estate Services,
and
Long-Term Mortgage Portfolio. Impac Mortgage Holdings, Inc. was
founded in 1995 and is headquartered in Irvine, California.
IMPAC MORTGAGE: Final Hearing on Class Action Set for Dec. 5
------------------------------------------------------------
Tydings & Rosenberg LLP issued a statement regarding the Impac
Mortgage Holdings, Inc. Class Action:
CURTIS J. TIMM, et al.,
Plaintiffs,
v.
IMPAC MORTGAGE HOLDINGS,
INC., et al.,
Defendant.
IN THE CIRCUIT COURT
FOR BALTIMORE CITY
Case No. 24-C-11-008391
SUMMARY OF THE TERMS OF THE CLASS CERTIFICATION ORDER
TO: ALL PERSONS AND ENTITIES WHO HELD OR ACQUIRED SERIES B
PREFERRED STOCK OF IMPAC MORTGAGE HOLDINGS INC. (TICKER SYMBOL:
IMPHP) AT ANY TIME FROM THE CLOSE OF THE TENDER OFFER ON JUNE 29,
2009 UNTIL THIS ACTION IS FINALLY CONCLUDED.
PLEASE READ THIS SUMMARY OF THE NOTICE CAREFULLY AND IN ITS
ENTIRETY. YOUR RIGHTS WILL BE AFFECTED BY THE LEGAL PROCEEDINGS IN
THIS LITIGATION.
The Order Certifying Class and Providing for Class Notice and Final
Hearing, dated July 22, 2022, as amended on August 8, 2022 (the
"Class Certification Order") has been filed with the Court and is
available for your inspection. The following is only a summary of
its terms. The Court has:
a. Certified the Action as a non-opt-out class action, meaning
that Class members will be bound by the Final Judgment entered in
the Action.
b. Certified the Action as a class action pursuant to Maryland
Rule 2-231(c)(2), on behalf of a class consisting of:
All owners of Series B Preferred stock of Impac Mortgage Holdings,
Inc. from the close of the tender offer on June 29, 2009, until the
date that the Final Judgment issued in this action attains
finality. The Final Judgment will attain finality (a) thirty-one
days after it is entered by the Clerk if no post-judgment motions
and no appeals are filed; (b) thirty-one days after resolution of
any post-judgment motions if no appeals are filed; or (c) after
final resolution of any appeals, whichever date is latest.
c. Designated Camac Fund LP ("Camac") as the Class Representative
and designated Camac's counsel, Tydings & Rosenberg LLP, John B.
Isbister, and Daniel S. Katz, as Class Counsel.
d. Provided deadlines for the Class Representative and Class
Counsel to file a petition for award of attorneys' fees and
expenses, including the expense of providing Class Notice.
e. Provided deadlines for plaintiff Curtis J. Timm to file a
petition for award of attorneys' fees and expenses and any other
special individual monetary relief.
f. Provided the means by which notice is being provided to the
Class, including deadlines for Class members to file any objections
to the proposed Final Judgment.
g. Required defendant Impac Mortgage Holdings, Inc. ("Impac") to
establish a record date of August 15, 2022 for payment of the
amount equal to Series B Preferred Stock dividends at 9.375%
interest for the quarters ending June 30, 2009, September 30, 2009,
and December 31, 2009 (the "2009 Dividend Amount"), which amount
the parties agree is $1,169,985.94, and to pay that amount into the
registry of the Court to be held pending final resolution of all
issues and final determination by the Court of the appropriate
distribution of those funds.
h. Determined preliminarily and subject to final determination
after consideration of any objections by any Class members that the
2009 Dividend Amount, less any deductions allowed by the Court,
shall be paid to the owners of Series B Preferred stock as of the
August 15, 2022 record date.
i. Scheduled a Final Hearing on December 5, 2022, at 2:00 p.m., to
consider all remaining issues and to enter a Final Judgment.
IF YOU HAVE ANY QUESTIONS ABOUT THE CLASS NOTICE, THIS ACTION, THE
PROPOSED FINAL JUDGMENT, OR THE FINAL HEARING, YOU SHOULD CONSULT
YOUR OWN COUNSEL OR DIRECT THEM TO PLAINTIFFS' CLASS COUNSEL, JOHN
B. ISBISTER, DANIEL S. KATZ, OR TYDINGS & ROSENBERG LLP, IN THIS
ACTION. PLEASE DO NOT CONTACT THE CLERK OF THE COURT.
THE CLASS NOTICE WAS APPROVED BY THE CIRCUIT COURT FOR BALTIMORE
CITY, JUDGE LAWRENCE P. FLETCHER-HILL, FOR USE IN PROVIDING NOTICE
TO MEMBERS OF THE PLAINTIFF CLASS.
THIS IS ONLY A SUMMARY. FOR THE COMPLETE NOTICE, WHICH INCLUDES
DETAILS ABOUT YOUR RIGHT TO FILE AN OBJECTION, THE MANNER OF DOING
SO, AND THE CONSEQUENCES OF NOT DOING SO, PLEASE VISIT
WWW.IMPACMORTGAGEHOLDINGSSERIESBPREFERREDCLASSACTION.COM OR
HTTPS://IR.IMPACCOMPANIES.COM/SERIES-B-PREFERRED-CLASS-ACTION OR
CONTACT THE NOTICE ADMINISTRATOR AT
INFO@IMPACMORTGAGEHOLDINGSSERIESBPREFERREDCLASSACTION.COM OR CLASS
COUNSEL AT DKATZ@TYDINGS.COM.
INOVIO PHARMACEUTICALS: $30MM Class Deal to be Heard on Dec. 15
---------------------------------------------------------------
Robbins Geller Rudman & Dowd LLP issued a statement regarding the
Inovio Pharmaceuticals Settlement:
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
PATRICK McDERMID, Individually and on
Behalf of All Others Similarly Situated,
Plaintiff,
vs.
INOVIO PHARMACEUTICALS, INC., et al.
Defendants.
Civ. Action No. 2:20-cv-01402-GJP
CLASS ACTION
IF YOU PURCHASED OR ACQUIRED INOVIO PHARMACEUTICALS, INC.
("INOVIO") COMMON STOCK FROM FEBRUARY 14, 2020 THROUGH AUGUST 10,
2020, INCLUSIVE (THE "CLASS"), YOU COULD RECEIVE A PAYMENT FROM A
CLASS ACTION SETTLEMENT. CERTAIN PERSONS ARE EXCLUDED FROM THE
DEFINITION OF THE CLASS AS SET FORTH IN THE STIPULATION OF
SETTLEMENT.
PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS MAY BE AFFECTED BY A
CLASS ACTION LAWSUIT PENDING IN THIS COURT.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and by Order of the United States District Court
for the Eastern District of Pennsylvania, that the above-captioned
litigation (the "Action") has been certified as a class action and
that a Settlement has been proposed for $30,000,000.00 in cash and
7,000,000 shares of Inovio common stock. A hearing will be held on
December 15, 2022, at 2:00 p.m., before the Honorable Gerald J.
Pappert, at the United States District Court, Eastern District of
Pennsylvania, Courtroom 11A, James A. Byrne U.S. Courthouse, 601
Market Street, Philadelphia, PA 19106, or remotely per details that
will be made publicly available on the Settlement website
(www.InovioSecuritiesLitigation.com) in advance of the Settlement
Hearing for the purpose of determining whether: (1) the proposed
Settlement should be approved by the Court as fair, reasonable and
adequate; (2) the proposed Plan of Allocation for distribution of
the Settlement proceeds is fair, reasonable and adequate and
therefore should be approved; and (3) the application of Lead
Counsel for the payment of attorneys' fees and expenses from the
Settlement Fund, including interest earned thereon, should be
approved.
IF YOU ARE A MEMBER OF THE CLASS DESCRIBED ABOVE, YOUR RIGHTS MAY
BE AFFECTED BY THE SETTLEMENT OF THE ACTION, AND YOU MAY BE
ENTITLED TO SHARE IN THE SETTLEMENT FUND. If you have not received
a detailed Notice of Pendency and Proposed Settlement of Class
Action (the "Notice") and a copy of the Proof of Claim Form ("Proof
of Claim"), you may obtain a copy of these documents by contacting
the Claims Administrator at: Inovio Securities Litigation, Claims
Administrator, c/o Gilardi & Co. LLC, P.O. Box 6162, Novato, CA
94948-6162; info@InovioSecuritiesLitigation.com; 1-866-809-3338.
You may also obtain copies of the Stipulation of Settlement, Notice
and Proof of Claim at www.InovioSecuritiesLitigation.com.
If you are a Class Member, to be eligible to share in the
distribution of the Net Settlement Fund, you must submit a Proof of
Claim by mail postmarked no later than December 19, 2022, or submit
it online by that date. If you are a Class Member and do not submit
a valid Proof of Claim, you will not be eligible to share in the
distribution of the Net Settlement Fund, but you will still be
bound by any judgment entered by the Court in this Action
(including the releases provided for therein).
To exclude yourself from the Class, you must mail a written request
for exclusion so that it is received by November 23, 2022, in
accordance with the instructions set forth in the Notice. If you
are a Class Member and do not exclude yourself from the Class, you
will be bound by any judgment entered by the Court in this Action
(including the releases provided for therein) whether or not you
submit a Proof of Claim. If you submit a written request for
exclusion, you will have no right to recover money pursuant to the
Settlement.
Any objection to the proposed Settlement, the Plan of Allocation of
Settlement proceeds, or the fee and expense application must be
filed with the Court no later than November 23, 2022.
PLEASE DO NOT CONTACT THE COURT, THE CLERK'S OFFICE, DEFENDANTS, OR
DEFENDANTS' COUNSEL REGARDING THIS NOTICE. If you have any
questions about the Settlement, or your eligibility to participate
in the Settlement, you may contact Lead Counsel at the following
address or by calling 1-800-449-4900:
ROBBINS GELLER RUDMAN & DOWD LLP
TRIG SMITH, ESQ.
655 West Broadway, Suite 1900
San Diego, CA 92101
settlementinfo@rgrdlaw.com
Dated: August 31, 2022
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
INTERACTIVE EDUCATION: Court Moves Class Cert Hearing to Oct. 31
----------------------------------------------------------------
In the class action lawsuit captioned as JENNIFER MCMANUS, as
parent and natural guardian of, KYLE MCMANUS, a minor, and QUYNH 13
ANH HUU NGUYEN, individually and on behalf of all others similarly
situated, v. INTERACTIVE EDUCATION CONCEPTS, INC. d/b/a IMPROV
LEARNING and IMPROV SAFETY, a California corporation; and DOES
1-10, inclusive, Case No. 2:21-cv-06559-MWF-ADS (C.D. Cal.), the
Hon. Judge Michael W. Fitzgerald entered an order granting joint
stipulation to extend deadline to hear motion for class
certification.
-- The last day to hear a Motion for Class Certification is
moved from October 24, 2022, to October 31, 2022. All
other dates and deadlines shall remain the same.
A copy of the Court's order dated Sept. 20, 2022 is available from
PacerMonitor.com at https://bit.ly/3y0WLPz at no extra charge.[CC]
INTRUSION INC: $3.25MM Settlement to be Heard on Nov. 30
--------------------------------------------------------
The Rosen Law Firm, P.A. on Sept. 19 disclosed that the United
States District Court for the Eastern District of Texas Sherman
Division has approved the following announcement of a proposed
securities class action settlement that would benefit purchasers of
Intrusion, Inc. common stock (NASDAQ: INTZ):
SUMMARY NOTICE OF PENDENCY AND
PROPOSED SECURITIES CLASS ACTION SETTLEMENT
TO: ALL PERSONS WHO PURCHASED OR OTHERWISE ACQUIRED INTRUSION, INC.
("INTRUSION") COMMON STOCK BETWEEN OCTOBER 14, 2020 AND AUGUST 26,
2021, BOTH DATES INCLUSIVE
YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States
District Court for the Eastern District of Texas, that a hearing
will be held on November 30, 2022, at 9:00 a.m. before the
Honorable Sean D. Jordan, United States District Judge of the
Eastern District of Texas, 7940 Preston Road, Suite 111, Plano, TX
75024 for the purpose of determining: (1) whether the proposed
Settlement of the claims in the above-captioned Action for
consideration including the sum of $3,250,000 should be approved by
the Court as fair, reasonable, and adequate; (2) whether the
proposed plan to distribute the Settlement proceeds is fair,
reasonable, and adequate; (3) whether the application of Lead
Counsel for attorneys' fees of up to one-third of the Settlement
Amount ($1,083,333.33) plus a proportionate share of interest
accrued on the Settlement Amount, Lead Counsel's reimbursement of
litigation expenses incurred of not more than $50,000 and Award to
Lead Plaintiff of not more than $5,000 should be approved; and (4)
whether the Action should be dismissed with prejudice as set forth
in the Revised Stipulation and Agreement of Settlement, dated as of
June 1, 2022 (the "Stipulation"). The Court reserves the right to
hold the Settlement Hearing telephonically or by other virtual
means.
If you purchased or otherwise acquired Intrusion common stock
between October 14, 2020 and August 26, 2021, both dates inclusive
("Settlement Class Period") and were damaged thereby, your rights
may be affected by this Settlement, including the release and
extinguishment of claims you may possess relating to your ownership
interest in Intrusion common stock. You may obtain copies of the
detailed Notice of Pendency and Proposed Settlement of Securities
Class Action ("Notice") and the Proof of Claim and Release Form by
writing to or calling the Claims Administrator: Intrusion, Inc.
Securities Litigation, c/o Strategic Claims Services, 600 N.
Jackson St., Ste. 205, P.O. Box 230, Media, PA 19063; (Tel) (866)
274-4004; (Fax) (610) 565-7985; info@strategicclaims.net. You can
also download copies of the Notice and submit your Proof of Claim
and Release Form online at www.strategicclaims.net/Intrusion/. If
you are a member of the Settlement Class, in order to share in the
distribution of the Net Settlement Fund, you must submit a Proof of
Claim and Release Form electronically or postmarked no later than
October 31, 2022 to the Claims Administrator, establishing that you
are entitled to recovery. Unless you submit a written exclusion
request, you will be bound by any judgment rendered in the Action
whether or not you make a claim.
If you are a Settlement Class Member and desire to be excluded from
the Settlement Class, you must submit to the Claims Administrator a
request for exclusion so that it is received no later than November
9, 2022, in the manner and form explained in the detailed Notice.
All members of the Settlement Class who do not timely request
exclusion from the Settlement Class will be bound by any judgment
entered in the Action pursuant to the Stipulation.
Any objection by a Settlement Class Member to the Settlement, Plan
of Allocation, Lead Counsel's requests for an award to Lead Counsel
of attorneys' fees and reimbursement of expenses and Award to
Plaintiffs must be in the manner and form explained in the detailed
Notice and received no later than November 9, 2022, by each of the
following:
Clerk of the Court
United States District Court
Eastern District of Texas
7940 Preston Road
Room 101
Plano, TX 75024
LEAD COUNSEL
THE ROSEN LAW FIRM, P.A.
Phillip Kim
275 Madison Avenue
40th Floor
New York, NY 10016
COUNSEL FOR INTRUSION, INC., B. FRANKLIN BYRD, MICHAEL L. PAXTON,
T. JOE HEAD, GARY DAVIS, AND JAMES GERO
WILSON SONSINI GOODRICH
& ROSATI, P.C.
Caz Hashemi
650 Page Mill Road
Palo Alto, CA 94304-1050
COUNSEL FOR DEFENDANT
JACK BLOUNT
GREENBERG TRAURIG LLP
David W. Klaudt
2200 ROSS AVENUE
SUITE 5200
Dallas, TX 75201
If you have any questions about the Settlement, you may call or
write to Lead Counsel:
THE ROSEN LAW FIRM, P.A.
Phillip Kim
275 Madison Avenue
40th Floor
New York, NY 10016
pkim@rosenlegal.com
PLEASE DO NOT CONTACT THE COURT, THE CLERK'S OFFICE, DEFENDANTS, OR
DEFENDANTS' COUNSEL REGARDING THIS NOTICE.
Dated: August 17, 2022
BY ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE
EASTERN DISTRICT OF TEXAS
J2 GLOBAL: Espy Appeals Securities Suit Dismissal to 9th Cir.
-------------------------------------------------------------
Lead Plaintiff Jonathan Espy filed an appeal from the District
Court's final judgment dated August 31, 2022 entered in the lawsuit
entitled JEFFREY GARCIA, Plaintiff v. J2 GLOBAL, INC., et al.,
Defendants, Case No. 2:20-cv-06096-FLA-MAA, in the U.S. District
Court for Central California, Los Angeles.
On July 8, 2020, Jeffrey Garcia filed a putative class action
lawsuit against Defendant, alleging violations of federal
securities laws. J2 Global moved to dismiss the consolidated class
action complaint on December 17, 2020.
The court granted the motion to dismiss on March 5, 2021 and the
plaintiff filed an amended complaint on April 19, 2021. J2 Global
moved to dismiss the amended complaint on May 20, 2021.
On August 8, 2022, Judge Fernando L. Aenlle-Rocha entered an order
granting the Defendants' motion to dismiss the second amended
consolidated class action complaint without leave to amend.
On August 31, 2022, final judgment was entered granting Defendants'
motion to dismiss the second amended consolidated complaint without
further leave to amend, and with prejudice against Plaintiff.
The appellate case is captioned as Jonathan Espy v. J2 Global,
Inc., et al., Case No. 22-55829, in the U.S. Court of Appeals for
the Ninth Circuit, filed on Sept. 9, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant Jonathan Espy Mediation Questionnaire was due Sept.
16, 2022;
-- Appellant Jonathan Espy opening brief is due on November 7,
2022;
-- Appellees J2 Global, Inc., Vivek Shah, R. Scott Turicchi and
Nehemia Zucker answering brief is due on December 7, 2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant JONATHAN ESPY, on behalf of himself and all
others similarly situated, is represented by:
Ivy T. Ngo, Esq.
ROCHE FREEDMAN, LLP
1 SE 3rd Avenue, Suite 1240
Miami, FL 33131
Telephone: (786) 924-2900
Defendants-Appellees J2 GLOBAL, INC., VIVEK SHAH, NEHEMIA ZUCKER,
and R. SCOTT TURICCHI are represented by:
Elizabeth Arias, Esq.
Matthew W. Close, Esq.
O'MELVENY & MYERS, LLP
400 S Hope Street, 18th Floor
Los Angeles, CA 90071
Telephone: (213) 430-6000
- and -
Abby F. Rudzin, Esq.
O'MELVENY & MYERS LLP
7 Times Square
New York, NY 10036
Telephone: (212) 326-2000
JA SOLAR: Appeals Relief From Judgment Ruling in ODS Suit
---------------------------------------------------------
JA SOLAR HOLDINGS CO. LTD., et al. are taking an appeal from a
district court ruling granting plaintiffs' motion for relief from
judgment in the lawsuit entitled ODS Capital LLC, et al.,
Plaintiffs, v. JA Solar Holdings Co. Ltd., et al., Defendants, Case
No. 1:18-cv-12083-ALC, in the U.S. District Court for the Southern
District of New York.
As previously reported in the Class Action Reporter, the lawsuit
asserts claims under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, and U.S. Securities and Exchange Commission
(SEC) Rule 10b-5 promulgated thereunder, on behalf of all former
stockholders and former owners of JA Solar stock and ADS who sold
shares, and were damaged thereby, during the period between
December 11, 2017 and July 16, 2018, inclusive.
The complaint alleges that JA Solar shareholders were misled into
accepting consideration from a merger that was well below fair
value for their JA Solar shares. Specifically, the Defendants
failed to disclose: (1) that the Company's Proxy materials
misrepresented and/or omitted material information that was
necessary for Company shareholders to make an informed decision
concerning whether to vote in favor of the merger; (2) that
contrary to the representations in the Proxy, the Company already
had plans to relist its shares in China prior to closing the merger
and its delisting from the NASDAQ; and (3) as a result, the
Company's statements about its business, operations, and prospects
lacked a reasonable basis.
On November 30, 2020, the district court granted the Defendants'
motion to dismiss and the action was terminated.
On December 29, 2020, the Plaintiffs filed a notice of appeal of
the district court's decision.
On May 7, 2021, the Plaintiffs filed a motion for relief from
judgment under Rule 60(b)(2) of the Federal Rules of Civil
Procedure and an indicative ruling under Rule 62.1, which Judge
Andrew L. Carter, Jr. granted on August 25, 2022. The Court
determined that the newly discovered evidence warrants relief from
judgment as it would probably change the outcome of the Court's
prior ruling on falsity.
The appellate case is captioned as ODS Capital LLC v. JA Solar
Holdings Co. Ltd., Case No. 22-1954, in the United States Court of
Appeals for the Second Circuit, filed on September 2, 2022.
Plaintiffs-Appellees ODS Capital LLC, et al., individually and on
behalf of all others similarly situated, are represented by:
Jake Bissell-Linsk, Esq.
Carol C. Villegas, Esq.
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
Telephone: (212) 907-0700
- and -
Michael Grunfeld, Esq.
Jeremy Alan Lieberman, Esq.
POMERANTZ LLP
600 3rd Avenue
New York, NY 10016
Telephone: (212) 661-1100
Defendants-Appellants JA SOLAR HOLDINGS CO. LTD., et al., are
represented by:
Robert Alexander Fumerton, Esq.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
One Manhattan West
New York, NY 10001
Telephone: (212) 735-3902
JACKSONVILLE UNIVERSITY: Senior Files ADA Suit in S.D. New York
---------------------------------------------------------------
A class action lawsuit has been filed against Jacksonville
University. The case is styled as Milagros Senior, on behalf of
herself and all other persons similarly situated v. Jacksonville
University, Case No. 1:22-cv-08083 (S.D.N.Y., Sept. 21, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Jacksonville University -- https://www.ju.edu/ -- is a private
university in Jacksonville, Florida.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: nyjg@aol.com
michael@gottlieb.legal
JEFFERIES FINANCIAL: Barnes Suit Asserts Breach of Fiduciary Duties
-------------------------------------------------------------------
CECILIA BARNES, on behalf of herself and all others similarly
situated, Plaintiff v. TILMAN J. FERTITTA, RICHARD H. LIEM, STEVEN
L. SCHEINTHAL, JEFFERIES FINANCIAL GROUP, INC., and DRAFTKINGS,
INC., Defendants, Case No. 2022-0797-JTL (Del. Ch., Sept. 14, 2022)
is a verified stockholder class action complaint against Defendants
for breaching their fiduciary duties in their capacity as
directors, officers and/or controllers of Golden Nugget, and
against Jefferies Financial Group, Inc. and DraftKings, Inc. for
aiding and abetting the breaches of fiduciary duties.
The action challenges the merger of Golden Nugget with DraftKings,
a transaction orchestrated to provide unique benefits to Golden
Nugget's controlling stockholder and Chairman, Fertitta. Fertitta
accomplished this by simultaneously negotiating separate contracts
between his company, Fertitta Entertainment, Inc. and DraftKings as
part of the overall transaction, including a Master Commercial
Agreement, Transition Services Agreement, and an amended Trademark
License Agreement.
Despite the uniqueness of this benefit accruing to Fertitta, the
Board failed to protect the minority stockholders of Golden Nugget,
says the suit. After the Merger was a fait accompli, the Board
formed a conflicted special committee but never conditioned
consummation of the Merger upon approval by a majority of
disinterested Golden Nugget stockholders.
As a result, DraftKings acquired Golden Nugget for unfair
consideration to the detriment of the Company's minority
stockholders, the suit alleges. Through this Action, Plaintiff
seeks to hold Defendants accountable for their breaches of
fiduciary duty and the damages caused thereby.
The Plaintiff is a current stockholder of Golden Nugget common
stock and has been a continuous stockholder of Golden Nugget.
Jefferies Financial Group, Inc. is a financial services company
incorporated in New York.[BN]
The Plaintiff is represented by:
Stephen E. Jenkins, Esq.
Richard D. Heins, Esq.
ASHBY & GEDDES
500 Delaware Avenue, 8th Floor
P.O. Box 1150
Wilmington, DE 19899
Telephone: (302) 654-1888
- and -
Donald J. Enright, Esq.
Elizabeth K. Tripodi, Esq.
Brian D. Stewart, Esq.
LEVI & KORSINSKY, LLP
1101 30th Street, N.W., Suite 115
Washington, DC 20007
Telephone: (202) 524-4290
KADENZO ENTERPRISES: Sisson Sues Over Dump Truck Drivers' Unpaid OT
-------------------------------------------------------------------
KAREN SISSON, on behalf of herself and those similarly situated v.
KADENZO ENTERPRISES, INC., A Domestic Profit Corporation AND NEIL
ROBERTS, INDIVIDUALLY, Case No. 1:22-cv-03722-AT (N.D. Ga., Sept.
16, 2022) is a class action suit against Kadenzo for unpaid
overtime wages pursuant to the Fair Labor Standards Act.
The Plaintiff seeks damages, reasonable attorney's fees, and other
relief under the FLSA.
The Plaintiff and the class members worked as "dump truck" drivers
for Defendant in Georgia. The Plaintiff was an employee of the
Defendant form July 2018 until November of 2020.
Kadenzo is a transportation, shipping and trucking company with its
principal office in Grayson, Georgia.[BN]
The Plaintiff is represented by:
Carlos V. Leach, Esq.
Adeash A.J. Lakraj, Esq.
THE LEACH FIRM, P.A.
631 S. Orlando Ave., Suite 300
Winter Park, FL 32789
Telephone: (407) 574-4999
Facsimile: (833) 423-5864
E-mail: cleach@theleachfirm.com
alakraj@theleachfirm.com
KEDRION BIOPHARMA: Bannister Files Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Kedrion Biopharma
Inc. The case is styled as Cassity Bannister, on behalf of herself
and all other persons similarly situated v. Kedrion Biopharma Inc.,
Case No. 2:22-cv-05295-GRB-JMW (E.D.N.Y., Sept. 6, 2022).
The nature of suit is stated as Other Labor.
Kedrion Biopharma -- https://www.kedrion.com/ -- collects and
fractionates blood plasma for the development, production and
distribution of plasma derivatives used in the treatment of
patients suffering from rare and chronic conditions such as
hemophilia and immune system deficiencies.[BN]
The Plaintiff is represented by:
David Donald Barnhorn, Esq.
Peter Arcadio Romero, Esq.
LAW OFFICE OF PETER A. ROMERO PLLC
490 Wheeler Road, Suite 250
Hauppauge, NY 11788
Phone: (631) 257-5588
Fax: (631) 201-3137
Email: dbarnhorn@romerolawny.com
Promero@RomeroLawNY.com
KELLOGG CO: Judge Dropped Customer's Suit After Unreasonable Claims
-------------------------------------------------------------------
Legal News Line Writer Daniel Fisher posted that A woman who hoped
to lead a class action against Kellogg's over supposedly mislabeled
"veggie" meat substitutes lost her case after a judge decided no
reasonable consumer would think the term excluded other non-meat
ingredients such as grains and oil.
Angela Kennard sued Kellogg in 2021 in federal court in California,
claiming MorningStar Farms "VEGGIE" products, including "VEGGIE
BURGERS," "VEGGIE DOGS," "VEGGIE CHIK'N," "VEGGIE MEAL STARTERS,"
"VEGGITIZERS," and "VEGGIE BREAKFAST," were misleading and violated
various consumer protection laws. Kennard's lawyers were Fitzgerald
Joseph of San Diego and Jackson & Foster of Mobile, Ala.
In her complaint, Kennard said she "lost money" because she
wouldn't have paid as much for Kellogg's "veggie" products had she
known they didn't contain what she considered to be veggie
ingredients. She claimed to represent other consumers whom she
said: "overpaid for the Veggie Products."
Sadly, for her, U.S. District Judge William Orrick wasn't buying
it. He quickly granted Kellogg's motion to dismiss, saying "it is
implausible" that a "reasonable consumer would be deceived" by the
packaging. The judge allowed Kennard and her lawyers to amend the
complaint to explain "why a significant portion of the general
consuming public" would think "veggie" meant vegetables and not
"grains, legumes, and oil."
Kennard's lawyers rose to the challenge and added consumer surveys
they said showed 80% of consumers were misled. They also pointed to
Kellogg's trademark application, which said its veggie products
were "vegetable-based."
They struck out a second time, however. In a Sept. 14, 2022 order,
Judge Orrick said the survey was fatally flawed because it didn't
ask consumers what they thought "veggie" meant and instead set up a
"false dichotomy" between two types of meat substitutes, those made
from vegetables and those made from grains and oils.
"Plaintiff's survey asked the wrong question - what plant-based
ingredients the consumers believed were primarily in a product,"
the judge wrote. "The right question," he said, was whether
consumers thought the products were meat alternatives or made with
vegetables as opposed to other ingredients.
To defend his decision, Judge Orrick cited previous Ninth Circuit
decisions dismissing claims Diet Dr. Pepper implied it would reduce
a consumer's weight and the idea a reasonable consumer would think
Trader Joe's "soymilk" comes from a cow. Kennard's case had no
similarity to a lawsuit against Gerber Products, he went on, were
baby food jars had pictures of whole fruits they didn't contain.
"The problem plaintiff faces here is that VEGGIE does not plausibly
refer to any particular ingredient (unlike 'bean burger' or
'tofurkey', names that do call out particular ingredients) or even,
as discussed above, vegetables as a class of ingredients," he
concluded.
This is at least the second-time Kennard has told a federal judge
she was misled into buying food products. The San Francisco
resident sued Lamb Weston Holdings in 2018, alleging its Alexia
brand sweet potato fries contained too much empty space. That case,
repped by Pacific Trial Partners, ended in an apparent settlement
after Judge Yvonne Gonzalez Rogers refused to dismiss her
"nonfunctional slack fill" claims.
Jack Fitzgerald of Fitzgerald Joseph and Sidney W. Jackson of
Jackson & Foster are frequent filers of consumer class actions.
They teamed up as recently as Sept. 9, when plaintiff Chelsea
Frederick accused Perrigo of misleading consumers about how many
bottles of Burt's Bees infant formula can be made from a package of
concentrate. They also represent plaintiff Callie Green, who
accuses Hain Celestial of misleading her about infant formula. [GN]
KEN J. CHOU: Chou Files Suit in Cal. Super. Ct.
-----------------------------------------------
A class action lawsuit has been filed against Ken J. Chou, et al.
case is styled as Charles Z. Chou, individually on his own behalf
and on behalf of all other persons similarly situated v. Ken J.
Chou; all persons unknown claiming any, legal or equitable right,
title, estate, lien, or interest in the property described in the
complaint adverse to Plaintiffsu0092 title thereto, Does 1 Through
100, Inclusive, Case No. CGC22601899 (Cal. Super. Ct., San
Francisco Cty., Sept. 21, 2022).
The case type is stated as "Quiet Title - Real Property."
Ken J. Chou is a real estate owner.[BN]
The Plaintiff is represented by:
Aleksandr A. Volkov, Esq.
VOLKOV LAW FIRM, INC.
675 Ygnacio Valley Rd., Ste. B209
Walnut Creek, CA 94596-3811
Phone: 415-987-7000
Fax: 415-276-6376
Email: alex@volf.com
KEVIN SZABO JR PLUMBING: Burns Files FLSA Suit in N.D. Illinois
---------------------------------------------------------------
A class action lawsuit has been filed against Kevin Szabo Jr
Plumbing Inc., et al. The case is styled as Kevin Burns, on behalf
of himself and all other plaintiffs similarly situated v. Kevin
Szabo Jr Plumbing Inc., Kevin Szabo Jr., Case No. 1:22-cv-04675
(N.D. Ill., Aug. 31, 2022).
The lawsuit is brought over alleged violation of the Fair Labor
Standards Act.
Kevin Szabo Jr. Plumbing -- https://www.kevinszabojrplumbing.net/
-- is a Tinley Park plumber that always prioritizes strong customer
service.[BN]
The Plaintiff is represented by:
David J. Fish, Esq.
Patrick James Cowlin, Esq.
John C Kunze, Esq.
FISH POTTER BOLANOS, P.C.
111 East Wacker Drive, Suite 2600
Chicago, IL 60601
Phone: (312) 861-1800
Email: dfish@fishlawfirm.com
pcowlin@fishlawfirm.com
kunze@fishlawfirm.com
KIA AMERICA: Faces Ballis Suit Over Defective Hyundai Vehicles
--------------------------------------------------------------
ROBERT BALLIS; and ASHLEIGH TOWERS, individually and on behalf of
all others similarly situated, Plaintiffs v. KIA AMERICA, INC.; and
HYUNDAI MOTOR AMERICA, Defendants, Case No.0:22-cv-02328-WMW-JFD
(D. Minn., Sept. 23, 2022) is a class action alleging that the
Defendants manufacture and sells defective 2011–2022 Kia vehicles
or 2015–2022 Hyundai vehicles (the "Vehicles").
The Plaintiffs allege in the complaint that the Vehicles do not
include an immobilizer. Thieves are able to start the Vehicles
without a car's specific smart key through the steering column
using a USB charging cord or other metal object. Despite the rise
in vehicle thefts, Defendants have not offered to install vehicle
immobilizers in the Vehicles. Defendants have announced that all
new vehicles, including the model the Plaintiffs own, will be sold
with immobilizers, say the Plaintiffs.
The Plaintiffs purchased a Vehicle from the Defendants which
suffers from the defect. The Plaintiffs would not have purchased
the Vehicles or would have paid less for the Vehicles had the
Plaintiffs known about the defect. As a result of the Defendants'
unfair, deceptive, and fraudulent business practices, consumers of
these products, including the Plaintiffs, have suffered an
ascertainable loss, injury-in-fact, and otherwise have been harmed
by Defendants' conduct, the suit asserts.
KIA MOTORS AMERICA, INC. operates as an automobile dealer. The
Company offers passenger cars, minivans, sports utility vehicles,
crossovers, sedans, vans, and cargo trucks. Kia Motors serves
customers worldwide. [BN]
The Plaintiff is represented by:
Robert K. Shelquist, Esq.
Rebecca A. Peterson, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Ave. S., Suite 2200
Minneapolis, MN 55401
Telephone: (612) 339-6900
Email: rkshelquist@locklaw.com
rapeterson@locklaw.com
- and -
Marshall Tanick, Esq.
MEYER NJUS TANICK
330 Second Avenue South, Suite 350
Minneapolis, MN 55401
Telephone: (612) 341-2181
Facsimile: (612) 337-5894
Email: mtanick@meyernjus.com
KIA AMERICA: McNerney Files Bid for Transfer and Consolidation
--------------------------------------------------------------
Katelyn McNerney, Sherry Mason, Carmi Nelson, Cameron Cunningham,
and Allison Brown v. Kia America, Inc., Hyundai Motor America, Case
MDL No. 3052 (Multidistrict Litigation, Aug. 31, 2022), is brought
as motion for Transfer and Consolidation of related actions in the
Central District of California.
The Plaintiffs Katelyn McNerney, Sherry Mason, Carmi Nelson,
Cameron Cunningham, and Allison Brown ("McNerney Plaintiffs")
respectfully move the Judicial Panel on Multidistrict Litigation
for an Order, that (i) transfers the putative class actions listed
in the Schedule of Actions (the "Related Actions"), and any other
tag-along actions asserting similar or related claims against Kia
America, Inc. and/or Hyundai Motor America involving allegations
that Kia and Hyundai vehicles failed to include immobilizer
technology to prevent theft that may subsequently be filed in or
removed to the federal courts; and (ii) consolidating the Related
Actions with the McNerney Action for pretrial discovery and class
certification purposes before Judge Cormac Carney in the Central
District of California.[BN]
The Plaintiffs are represented by:
Steve W. Berman, Esq.
Sean R. Matt, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1301 Second Avenue, Suite 2000
Seattle, DC 98101
Phone: (206) 623-7292
Facsimile: (206) 623-0594
Email: steve@hbsslaw.com
sean@hbsslaw.com
- and –
Christopher R. Pitoun, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
301 North Lake Avenue, Suite 920
Pasadena, CA 91101
Phone: (213) 330-7150
Facsimile: (213) 330-7152
Email: christopherp@hbsslaw.com
- and -
Jeffrey S. Goldenberg, Esq.
Todd Naylor, Esq.
GOLDENBERG SCHNEIDER, LPA
4445 Lake Forest Drive, Suite 490
Cincinnati, OH 45249
Phone: (513) 345-8291
Facsimile: (513) 345-8294
Email: jgoldenberg@gs-legal.com
tnaylor@gs-legal.com
- and -
Joseph M Lyon, Esq.
THE LYON FIRM
2754 Erie Avenue
Cincinnati, OH 45208
Phone: (513) 381-2333
Fax: (513) 721-1178
Email: jlyon@thelyonfirm.com
KONINKLIJKE LUCHTVAART: Sued Over Misleading Marketing Practices
----------------------------------------------------------------
Kandus Dakus, individually and on behalf of all others similarly
situated v. Koninklijke Luchtvaart Maatschappij, N.V., Case No. 1
1:22-cv-07962 (S.D.N.Y., Sept. 17, 2022), seeks damages and an
injunction to stop the Defendant's false and misleading marketing
practices with regards to KLM Royal Dutch Airlines which tells
potential customers of its commitment to "Fly Responsibly."
KLM is aware that acting to limit the effects of climate change is
important to customers, and encourages them to "Fly Responsibly" to
"create a more sustainable future," to achieve "the targets defined
in the Paris Climate Agreement." KLM entices customers to "offset"
and "reduce" the environmental impact of flying by purchasing
carbon credits through its CO2ZERO program. This program is based
on reforestation involving planting trees, which function as carbon
dioxide sinks, that in theory absorb a defined amount of CO2 from
the atmosphere equivalent to what is expended per flier in a
typical flight.
The Defendant's promotion of offsets as sufficient to negate the
environmental impact of flying and consistent with the Paris
Agreement is false, deceptive and misleading. Defendant's offset
program admittedly has no effect on other greenhouse gases
associated with flying like methane, nitrogen and condensation
trails from aircraft ("contrails"). When fossil fuels are left
unused, they can be stored stably for millions of years. The
Defendant's encouragement to consumers to "fly responsibly" is
inconsistent with limiting the effects of climate change as agreed
to in the Paris Agreement.
KLM's Climate Action Plan, not fully disclosed to those seeking to
purchase flights, reveals it has committed only to the reduction of
greenhouse gas emissions by twelve percent by 2030, which is well
below 2°C target of the Paris Agreement. The IPCC determined that
changing behavior is the most immediate and significant way to
reduce emissions, and can do so by between forty and seventy
percent. According to Greenpeace and The New Weather Institute,
marketing and advertising of airlines such as that of KLM are
responsible for the equivalent of 34 million tons of CO2
emissions.
European organizations have brought these issues to Defendant's
attention, and it has refused to act. The Defendant's advertising
impedes the achievement of the Paris target by preventing a
reduction in demand for flying. The Defendant makes other
representations and omissions which are false and misleading. As a
result of the false and misleading representations, customers are
given the false promise that they can "Fly Responsibly" and that
the environmental impact of their flights will be balanced by any
offsets, says the complaint.
The Plaintiff flew KLM from George Bush International Airport in
Houston to Europe in the summer of 2022 and relied on the words,
promises, commitments, plans, and pictures by KLM about its efforts
to limit the effects of climate change when she purchased her
flight.
KLM is the world's oldest airline and part of the Air France-KLM
Group.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Rd., Ste. 409
Great Neck NY 11021-3104
Phone: (516) 268-7080
Email: spencer@spencersheehan.com
LIDL US LLC: August Files Suit in E.D. New York
-----------------------------------------------
A class action lawsuit has been filed against Lidl US, LLC, et al.
The case is styled as Jillian August, on behalf of herself and all
other persons similarly situated v. Lidl US, LLC, Lidl US
Operations, LLC, Case No. 2:22-cv-05180-JMA-ARL (E.D.N.Y., Aug. 30,
2022).
The nature of suit is stated as Other Labor.
Lidl US, LLC -- https://www.lidl.com/ -- operates as a
supermarket.[BN]
The Plaintiff is represented by:
Peter Arcadio Romero, Esq.
LAW OFFICE OF PETER A. ROMERO PLLC
490 Wheeler Road, Suite 250
Hauppauge, NY 11788
Phone: (631) 257-5588
Fax: (631) 201-3137
Email: Promero@RomeroLawNY.com
LILY'S SWEETS: Gamez Files Suit in C.D. California
--------------------------------------------------
A class action lawsuit has been filed against Lily's Sweets, LLC,
et al. The case is styled as Jasmine Gamez, individually and on
behalf of all others similarly situated v. Lily's Sweets, LLC, a
Delaware limited liability company; DOES 1 through 25, Case No.
5:22-cv-01665 (C.D. Cal., Sept. 21, 2022).
The nature of suit is stated as Other P.I. for Personal Injury.
Lily's Sweets -- https://lilys.com/ -- creates no sugar added
chocolate for baking and snacking.[BN]
The Plaintiff is represented by:
Scott J. Ferrell, Esq.
PACIFIC TRIAL ATTORNEYS APC
4100 Newport Place Drive Suite 800
Newport Beach, CA 92660
Phone: (949) 706-6464
Fax: (949) 706-6469
Email: sferrell@pacifictrialattorneys.com
LINCOLN HILLS, WI: Youth Prison Report Released After Settlement
----------------------------------------------------------------
Sarah Volpenhein, writing for Milwaukee Journal Sentinel, reports
that Lincoln Hills, the state's troubled youth prison, continues to
be in a "staffing crisis" that has caused young people to be
confined to their cells for long stretches and miss out on
classroom time, according to the latest report by a court-ordered
monitor.
As of July 31, Lincoln Hills had a 40% vacancy rate for youth
counselors, who work directly with teens held at the prison,
according to a new report filed earlier this month in federal court
in a class-action lawsuit. The lawsuit, which was settled in 2018,
forced the state Department of Corrections to overhaul how it cares
for teenage offenders.
Only three of 12 social worker positions were filled, one fewer
than in March. Corrections officials have not been able to hire a
social worker since 2018, according to the report. Five teacher
positions, or about a quarter, were vacant, the report said.
The staffing shortages have resulted in young people being confined
for longer periods in their cells with little to do, not because
they had misbehaved but because the prison did not have enough
staff to safely supervise them, wrote Teresa Abreu, the monitor.
Young people interviewed during the monitor's most-recent visit at
the end of July complained about having to do classwork in their
cells or on their units, where they did not always have help from a
teacher. They felt they were not learning as much as when they had
in-person teaching in the facility's classrooms. Some young people
also complained about having little or no time outdoors and not
being allowed off the unit to go to the gym or for other
recreation.
Even as the prison is understaffed, the population at Lincoln Hills
School and Copper Lake School, which houses girls on the same
campus in Irma, has increased significantly in recent months. On
Sept. 23, the prison population was at 88, according to the state
Department of Corrections.
The report comes three months after an earlier report by the same
monitor that first flagged the staffing crisis. In that report,
Abreu noted that unlike in previous years, young people were
clamoring to talk with her.
"Youth attitudes have not been this negative in years," she had
written.
In this most recent report, she noted that the young people seemed
more positive on this visit, though they still had a wide range of
complaints.
She also noted that following her visit, there seemed to be
improvements in August to confinement time and recreation time.
The monitor's report notes that the state Department of Corrections
had raised the pay rate for correctional staff, including youth
counselors, by $10 per hour to try to keep current employees and
attract new hires. But recruiting new hires has been a challenge,
the monitor noted, because of the prison's location in rural
northern Wisconsin and uncertainty about when the facility will
close.
State lawmakers unanimously agreed in 2018 to close Lincoln Hills
and replace it with smaller facilities around the state. That plan
was stalled for years -- until recently when lawmakers passed a
bipartisan bill funding a new youth prison in Milwaukee County,
where most of the young people held at Lincoln Hills are from.
More:Site on Milwaukee's northwest side would replace Lincoln Hills
under plan from Gov. Tony Evers
More:A new youth prison is coming to Milwaukee but hurdles remain.
Here's a look at the closing of Lincoln Hills and what comes next
in Milwaukee
For most of the last decade, Lincoln Hills and Copper Lake were
plagued by problems that made the joint campus an unsafe
environment for both young inmates and correctional workers. In
2015, state and federal agents raided the prison after an exhausted
and fed-up correctional officer shoved an insubordinate young
inmate into his cell and slammed the door -- smashing the
17-year-old's foot and causing parts of his toes to be amputated.
Just weeks before that incident, a 16-year-old girl calling for
help was ignored by prison staff while she hanged herself in her
cell -- resulting in permanent and severe brain damage.
Legal settlements were reached in both cases that cost more than
$19 million.
As an investigation into alleged abuse unfolded, a class-action
lawsuit was filed by dozens of inmates who alleged the staff's
heavy use of solitary confinement, handcuffs and pepper spray
violated their constitutional rights.
That lawsuit ended in a settlement that forced an overhaul of the
prison's practices and required regular visits and reports by an
outside monitor to check if the prison was following the terms of
the settlement.
It could be years before the new prison in Milwaukee County is
built. State officials have selected a site on Milwaukee's north
side where they plan to build the facility, but they are in the
middle of processes at the state and local levels to clear the
project before construction.
In her report, the monitor noted that moving the young people held
at Lincoln Hills closer to their families and to Milwaukee, where
culturally-competent programs are more widely available, would
"have a positive impact on youth" and make hiring and filling
"critical roles" easier. [GN]
LINCOLN LIFE: Court Sets Oct. 17 Class Action Opt-Out Deadline
--------------------------------------------------------------
The Court has allowed a lawsuit known as Vida Longevity Fund, LP v.
Lincoln Life & Annuity Company of New York, Case No.
1:19-cv-06004-ALC-DCF (S.D.N.Y), to be a class action on behalf of
a "Class," or group of people, that may include you. The lawsuit
alleges that Lincoln Life & Annuity Company of New York
("Defendant") breached the contracts with SUL I, SUL IV, UL I, UL
II, UL III, and UL LPR policyowners by imposing cost of insurance
("COI") rates that were in violation of the policy provisions.
Defendant denies the lawsuit claims. The Court has not decided who
is right or wrong. The Court has not yet set a trial date.
WHO IS A CLASS MEMBER?
The Class consists of all current and former owners of SUL I, SUL
IV, UL I, UL II, UL III, or UL LPR policies issued or insured by
Defendant during the Class Period, excluding policy numbers
7143647, 7150005, 7150984, 7155997, 7163495, and 7163710. The Class
Period is defined in the FAQ Section of
www.LincolnNYCOILitigation.com. This Notice summarizes your rights
and options.
YOUR RIGHTS AND OPTIONS
Do nothing. Stay in this lawsuit and await the outcome. Any
judgment in this case -- whether favorable to Plaintiff or
Defendant -- will bind all Class Members who do not timely elect to
be excluded from the Class. There is no money available now, and no
guarantee there ever will be. The Court has appointed Susman
Godfrey L.L.P. as Class Counsel. If you stay in the Class, you do
not need to hire your own lawyer to pursue the claims against
Defendant because Class Counsel is working on behalf of the Class.
However, if you want to be represented by your own lawyer, you may
hire one at your own expense and cost. If you have questions, visit
www.LincolnNYCOILitigation.com or call 1-877-654-1978.
Exclude yourself. Get no benefits from lawsuit. Keep certain
rights. If you ask to be excluded from this lawsuit and money is
later awarded, you will not be allowed to request a payment. But
you preserve any rights to sue Defendant at your own expense and
with your own attorney about the same legal claims in this lawsuit.
You may exclude yourself from the lawsuit by sending a letter
requesting exclusion from this lawsuit with your name, address,
telephone number, email address, signature, and the insurance
policy number(s) you wish to exclude to: Lincoln NY COI Notice
Administrator, c/o JND Legal Administration, P.O. Box 91205,
Seattle, WA 98111. You must mail your exclusion request, postmarked
no later than October 17, 2022.
This Notice is only a summary. Learn more at
www.LincolnNYCOILitigation.com. Please do not contact the Court.
LOUISIANA: Prelim. Injunction Bid in Alex A. v. Edwards Denied
--------------------------------------------------------------
In the case, ALEX A., by and through his guardian, MOLLY SMITH,
individually and on behalf of all others similarly situated v.
GOVERNOR JON BEL EDWARDS, in his official capacity as Governor of
Louisiana; WILLIAM SOMMERS, in his official capacity as Deputy
Secretary of the Office of Juvenile Justice, JAMES M. LEBLANC, in
his official capacity as Secretary of the Louisiana Department of
Public Safety & Corrections, Civil Action No. 22-573-SDD-RLB (M.D.
La.), Judge Shelly D. Dick of the U.S. District Court for the
Middle District of Louisiana denies the Plaintiff's Motion for
Preliminary Injunction.
The matter is before the Court on the Motion for Temporary
Restraining Order, filed by Alex A., by and through his guardian,
Molly Smith ("Plaintiff"), which also included a request for
injunctive relief. The Defendants, Governor Edwards, in his
official capacity as Governor of Louisiana, Sommers, in his
official capacity as Deputy Secretary of the Office of Juvenile
Justice ("OJJ"), and Leblanc, in his official capacity as Secretary
of the Louisiana Department of Public Safety & Corrections ("DOC"),
filed an Opposition to the Plaintiff's motion. The Court denied the
Plaintiff's Motion for Temporary Restraining Order and set the
matter for a Preliminary Injunction hearing.
The case presents an untenable proposition to house adolescents,
some as young as 12 years old, who have been determined to be
juvenile delinquents, at the notorious Angola Penitentiary in a
cell block which once housed death row inmates. A few of the
adolescents adjudicated as "delinquent" and placed in the secure
care of the OJJ present formidable security and safety risks. OJJ
is charged with a rehabilitative, not punitive, mission. But a
small handful of youth have wreaked havoc, endangering themselves,
other youth, OJJ staff, and members of the general public. Ongoing
and repeated acts of violent and disruptive behaviour by a few, has
reduced OJJ to becoming security enforcers instead of
rehabilitators.
On July 19, 2022, in response to several recent incidents of
serious events at OJJ secure care facilities, including riots,
attempted and successful escapes, and acts of violence against
staff, other youth, and members of the public, Louisiana's Governor
John Bel Edwards held a press conference announcing that the state
will "temporarily move" approximately 25 youth in the custody of
OJJ from Bridge City Center for Youth ("BCCY"), a juvenile secure
care facility, to the grounds of the Louisiana State Penitentiary
at Angola ("LSP" or "Angola").
On Aug. 19, 2022, the Plaintiff filed a class action complaint
against the Defendants on behalf of a putative class of all current
and future persons held at BCCY who might be transferred to LSP or
another adult prison. She asserts claims under the Fourteenth
Amendment of the U.S. Constitution and Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. Section 794. The Plaintiff
moved for an Emergency Temporary Restraining Order seeking to: (1)
enjoin the Defendants from transferring or incarcerating her or any
proposed Class member at LSP, and (2) enjoin the Defendants to
immediately return any youth who may have already been transferred
to LSP to BCCY or another appropriate OJJ facility for youth.
On Aug. 23, 2022, the Court held a telephonic status conference,
during which Defendants stipulated that no youth had been or would
be moved to Angola until on or after Sept. 15, 2022. It denied the
Plaintiff's emergency motion for a TRO and set the matter for a
Preliminary Injunction hearing. The Court set expedited deadlines
for discovery, including depositions and disclosure of experts. The
Parties conducted limited, expedited discovery. The Preliminary
Injunction hearing was held from Sept. 6 through 8, 2022. The
Parties were granted leave to file post-hearing memoranda.
The Parties dispute whether Alex A. exhausted administrative
remedies under the PLRA before filing the action. At the
Preliminary Injunction hearing, neither the Plaintiff nor the
Defendants presented evidence on this issue, and they offered no
arguments other than those previously briefed. Thus, Judge Dick
rules on this issue based on the pleadings before the Court.
Alex A. lodged an emergency Administrative Remedy Procedure ("ARP")
grievance, which was denied. The Defendants contend that, following
denial of the emergency ARP, Alex A. was required to engage the
general ARP procedure, which he did not do, and thus he failed to
exhaust his administrative remedies. The general ARP process takes
51 days, which the Plaintiff claims would render the emergency
process meaningless.
The Defendants maintain that there is nothing in the ARP policy of
OJJ that exempts a youth from utilizing the "still available"
general ARP process before filing suit; thus, the Plaintiff's
claims are not exhausted and not properly before the Court. The
same argument advanced by the Defendants was recently rejected by
another section of the Court.
Judge Dick finds that the denial of Alex A.'s emergency ARP
constituted a final decision upon which the Plaintiff could rely in
filing suit. Alternatively, she finds that, following a denial of
the emergency ARP, the remaining procedure "operates as a simple
dead end" because the second step procedure, urged by the
Defendants, "lacks authority to provide any relief." Furthermore,
if applied as advocated by the Defendants the "administrative
scheme is so opaque that no reasonable prisoner can use them."
Judge Dick has considered the Parties' pre-hearing and post-hearing
briefs, the evidence admitted during the hearing, and the
applicable law.
The Plaintiff's Complaint asserts claims pursuant to 42 U.S.C.
Section 1983 for unlawful conditions of confinement and deprivation
of due process. She Plaintiff contends that, "by transferring Youth
adjudicated delinquent to the Louisiana State Penitentiary at
Angola, a maximum-security adult prison, the Defendants violate
their duty to provide conditions of reasonable health and safety to
the youth it holds in its custody, and demonstrate deliberate
indifference to a substantial risk of serious harm to her, in
violation of her rights under the Fourteenth Amendment to the U.S.
Constitution" and that the "Defendants' actions are also punishment
of her in violation of the Fourteenth Amendment."
The Plaintiff also seeks declaratory and injunctive relief under
Section 504 of the Rehabilitation Act of 1973, claiming that, "by
transferring youth adjudicated delinquent to the Louisiana State
Penitentiary at Angola, a maximum-security adult prison the
required educational and rehabilitative services for the Plaintiffs
with disabilities cannot be provided."
First, Judge Dick finds that the Complaint alleges a failure to
accommodate claim under the RA, not disability discrimination. Even
if such a claim could be somehow gleaned from the Plaintiff's
Complaint, there was not a shred of evidence that the Defendants
intentionally failed to provide youth with mental disabilities at
BCCY with the details of the plan because of their disabilities. A
disability discrimination claim is not properly before the Court,
and there has been utterly no showing of likelihood of success on
the merits of such a claim.
Next, Judge Dick rules that the Plaintiff presented objective
evidence of a serious risk of psychological harm. Considering the
subjective component of the deliberate indifference standard, she
finds that the Plaintiff failed to present evidence to demonstrate
a likelihood of success that he could satisfy the subjective
component of the deliberate indifference standard. While it is
obvious that the OJJ officials are aware of the ages of the youth
eligible for transfer and arguably aware of the mental health
status of these youth, there is no evidence that OJJ officials
subjectively drew the inference that housing youth on the grounds
of Angola in the designated facility poses a serious risk of
psychological harm.
Moreover, the Plaintiff has failed to demonstrate a likelihood of
success on the merits as to his unconstitutional punishment/due
process claim. There is overwhelming evidence in this matter that
the transfer plan is rationally related to a legitimate,
nonpunitive governmental purpose. OJJ has an obligation to attempt
to rehabilitate all youth placed in its custody. Juvenile detention
administrators do not violate the Constitution by utilizing a
discipline program to maintain order, safety, and security in a
detention facility
Having found that the Plaintiff failed to demonstrate a likelihood
of success on his RA and Section 1983 claims, the Motion for
injunctive relief fails. Nonetheless, Judge Dick analyzes the proof
on the irreparable harm element. Irreparable harm requires a
showing that: (1) the harm to the Plaintiff is imminent (2) the
injury would be irreparable and (3) that the Plaintiff has no other
adequate legal remedy.
For the same reasons she found that there was a serious risk of
psychological harm to the Plaintiff (and similarly situated youth)
due to his age and that he suffers from PTSD and other mental
health issues, Judge Dick finds that the Plaintiff has presented
evidence to support the likelihood that psychological harm is
imminent upon his transfer to BCCY-West Feliciana. Her finding of
likely irreparable psychological harm, however, does not alone
carry the Plaintiff's preliminary injunction burden.
While the Plaintiff focuses entirely on the alleged risk of harm to
himself and the purported class, Judge Dick holds that the
Plaintiff fails to advance any meaningful argument addressed to the
serious potential risk of harm that an injunction would cause to
the Defendants. Hence, the balance of harms weighs against granting
the injunction.
Finally, Judge Dick rules that Louisiana has vested OJJ with
discretionary authority concerning secure care for the juveniles in
its custody. The Constitution affords juveniles in secure care no
constitutionally protected interests that outweigh the Defendants'
or the public's interests in the administration of juvenile
justice. The public has an interest in seeing adolescents
adjudicated delinquent rehabilitated. So too, the public has an
interest in maintaining public safety. There can be no meaningful
rehabilitation of youth if OJJ's principal objective is reduced to
maintaining order.
The Court must consider and balance the "many other acute and
competing needs of society." These youth deserve more than the
circumstances they have endured that have brought them to this
point. In terms of their secure care, they "deserve and should have
more than the constitutionally permissible minimum." Nonetheless,
Judge Dick finds that the constitutional minimum is satisfied under
the circumstances of the case.
For the foregoing reasons, Judge Dick denies the Plaintiff's Motion
for Preliminary Injunction. The matter is referred to the
Magistrate Judge for a Scheduling Order.
A full-text copy of the Court's Sept. 23, 2022 Ruling is available
at https://tinyurl.com/mry5yfeh from Leagle.com.
LOVISA AMERICA: California Court Grants Bid to Dismiss Brooks Suit
------------------------------------------------------------------
In the case, VALERIE BROOKS, individually and on behalf of all
others similarly situated, Plaintiff v. LOVISA AMERICA, LLC, a
Delaware limited liability company; and DOES 1 to 10, inclusive,
Defendants, Case No. 2:20-cv-02493-TLN-KJN (E.D. Cal.), Judge Troy
L. Nunley of the U.S. District Court for the Eastern District of
California grants Defendant Lovisa's Motion to Dismiss.
The Plaintiff alleges she is a visually impaired and legally blind
individual who requires screen-reading software to read website
content on her computer. She claims she visited the Defendant's
website, https://www.lovisa.com/, on several unspecified occasions,
most recently in 2020. However, in navigating the Website, she
encountered "multiple access barriers" while using screen-reading
software.
The Plaintiff claims those barriers "deterred and impeded her from
the full and equal enjoyment of goods and services offered in
Defendant's stores and from making purchases at such physical
locations." She further alleges that she "was unable to find the
location and hours of operation of the Defendant's locations on its
website, preventing Plaintiff from visiting the locations to
purchase goods and/or services."
In terms of the offending website barriers, the Plaintiff alleges
she encountered several shortcomings, including the lack of
alternative text code embedded beneath a website graphic or image
that would enable the screen-reading software to describe the
graphic or image for a sight-impaired user. Moreover, she complains
of an inability to access information on the Website, including
"goods and services such as new arrivals, top trending items,
specific collections, festive accessories, gifts, face masks, body
piercings, earrings, hair accessories, necklaces, wristwear, rings,
kids' jewelry, ear piercings, and sale items."
On Dec. 16, 2020, the Plaintiff filed a complaint alleging two
claims against the Defendant: (1) violation of Title III of the
Americans with Disabilities Act ("ADA"); and (2) violation of the
California Unruh Civil Rights Act, California Civil Code Section
51, et seq. ("Unruh Act"). On June 8, 2021, the Defendant moved to
dismiss the Plaintiff's claims pursuant to Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction. The
Plaintiff filed an opposition on June 24, 2021. The Defendant filed
a reply on July 1, 2021.
The Defendant moves to dismiss the Plaintiff's ADA claim, arguing
the Court lacks subject matter jurisdiction because: (1) the
Plaintiff's complaint fails to properly plead an "injury-in-fact"
needed to establish standing; (2) the ADA claim is moot; and (3)
Plaintiff cannot show that a future injury is actual or imminent.
It also argues that should the Court dismiss the Plaintiff's ADA
claim, it must also dismiss her Unruh Act claim for lack of subject
matter jurisdiction.
Judge Nunley holds that the Defendant has not met its burden to
show it is absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur. Accordingly, he does not
find the Plaintiff's ADA claim to be moot. He also finds that the
Plaintiff has not sufficiently alleged the nexus requirement, and
therefore, the Plaintiff has not alleged an injury-in-fact under
the ADA. Because the Plaintiff has not alleged an injury-in-fact,
she therefore lacks standing. Without standing, the Court lacks
subject matter jurisdiction to hear her ADA claim.
Therefore, Judge Nunley grants the Defendant's motion to dismiss
the Plaintiff's ADA claim for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1).
The Defendant moves to dismiss the Plaintiff's Unruh Act claim
because she has pleaded an Unruh Act claim predicated on an ADA
claim subject to dismissal. In opposition, the Plaintiff asserts
that because her case is not moot and her ADA claim is not subject
to dismissal, her Unruh Act claim should not be dismissed.
Judge Nunley finds that the complaint does not sufficiently allege
an injury-in-fact for the Plaintiff's ADA claim. Therefore, because
the Plaintiff only argues the Unruh Act claim should not be
dismissed because the ADA claim is not subject to dismissal, the
Court must dismiss her Unruh Act claim as well. Judge Nunley thus
grants the Defendant's motion to dismiss the Plaintiff's Unruh Act
claim pursuant to Rule 12(b)(1).
For the foregoing reasons, Judge Nunley grants the Defendant's
Motion to Dismiss. The Plaintiff is granted 30 days from the
electronic filing date of the Order to file an amended complaint in
conformity with it. The Defendant will file a responsive pleading
to the amended complaint within 21 days from the electronic filing
date of the amended complaint.
A full-text copy of the Court's Sept. 21, 2022 Order is available
at https://tinyurl.com/3wn74ysk from Leagle.com.
LOWE'S HOME: Court Grants Bid to Compel Arbitration in Johnson Suit
-------------------------------------------------------------------
In the case, MARIA JOHNSON, an individual, for herself and on
behalf of others similarly situated, and as a private attorney
general, Plaintiff v. LOWE'S HOME CENTERS, LLC, a North Carolina
limited liability company, Defendant, Case No.
2:21-cv-00087-TLN-JDP (E.D. Cal.), Judge Troy L. Nunley of the U.S.
District Court for the Eastern District of California:
(i) grants the Defendant's motion to compel arbitration; and
(ii) denies as moot the Defendant's motion to dismiss.
Ms. Johnson, the Defendant's former employee, filed the operative
First Amended Complaint ("FAC") on Feb. 2, 2021. She alleges a
claim under the Private Attorneys General Act of 2004 ("PAGA"), in
which she seeks civil penalties based on alleged California Labor
Code violations Defendant committed against Plaintiff and other
aggrieved employees.
The Defendant filed a motion to dismiss for failure to state a
claim on March 2, 2021. After the Supreme Court's recent decision
in Viking River Cruises, Inc. v. Moriana, 142 S.Ct. 1906 (2022), it
filed a motion to compel arbitration of the Plaintiff's individual
PAGA claim and dismiss her non-individual PAGA claims.
The Defendant argues Viking River confirms that the Plaintiff's
individual PAGA claim must be compelled to arbitration and her
remaining non-individual PAGA claims must be dismissed for lack of
statutory standing. In opposition, the Plaintiff "does not dispute
that she entered into arbitration agreements during her
employment." However, she argues: (1) the agreements include
unenforceable "wholesale waivers" of PAGA claims; (2) the
agreements' severability provisions require litigation of PAGA
claims; and (3) if the Court compels arbitration of the individual
PAGA claim, the remaining non-individual PAGA claims should not be
dismissed.
Judge Nunley first addresses the Plaintiff's individual PAGA claim
and then the remaining non-individual PAGA claims.
Judge Nunley concludes the waiver at issue in the instant case does
not run afoul of Iskanian v. CLS Trans. L.A., LLC, 59 Cal.4th 348
(2014)'s principal rule: That "categorical waivers of PAGA standing
are contrary to state policy and that PAGA claims cannot be split
into arbitrable individual claims and nonarbitrable
'representative' claims." This is because it is not a "wholesale
waiver" that prevents the Plaintiff from bringing a PAGA action on
behalf of the State for violations she suffered as an individual.
The "Representative Action Waiver" clarifies that it "means the
employee may not seek relief on behalf of any other parties in
arbitration, including but not limited to similar aggrieved
employees." It also explains "the arbitrator's authority to resolve
any dispute will be limited to the employee's individual claims."
Accordingly, the waiver seeks to limit PAGA claims within the
second meaning of "representative" -- "when they are predicated on
code violations sustained by other employees."
Even if the Court construed the provision as a wholesale waiver of
PAGA claims, the severability provision in the instant case mirrors
the severability provision in Viking River. The severability
provision in Viking River stated, "if the waiver was found invalid,
such a dispute would presumptively be litigated in court" and "any
'portion' of the waiver that remained valid would be 'enforced in
arbitration.'" The Court found that, based on this language, Viking
River was "entitled to enforce the agreement insofar as it mandated
arbitration of the employee's individual PAGA claim."
The Plaintiff argues the crucial difference is that the
severability provision in Viking River stated "any 'portion' of the
waiver that remained valid would be 'enforced in arbitration,'"
while the provision in the instant case states "any claims covered
by any deemed unenforceable waiver provision may only be litigated
in a court of competent jurisdiction."
Judge Nunley finds the severability provision in the instant case
is similar enough to the provision in Viking River to warrant the
same result. The severability provision ends by stating, "the
remainder of the agreement will be binding and enforceable." The
agreements provide that Plaintiff agreed that "any controversy
between the Plaintiff and the Defendant arising out of the
Plaintiff's employment will be settled by binding arbitration." The
agreements further provide the Plaintiff may bring claims "solely
on an individual basis" and "the arbitrator's authority to resolve
any dispute and to make written awards will be limited to the
employee's individual claims." As such, Judge Nunley concludes
that, like in Viking River, the Defendant is entitled to enforce
the agreements to the extent they mandate arbitration of the
Plaintiff's individual PAGA claim.
Absent any further argument to the contrary, Judge Nunley finds the
arbitration agreements are valid and the Plaintiff's dispute falls
within the scope of those agreements. Therefore, he grants the
Defendant's motion to compel the Plaintiff's individual PAGA claim
to arbitration.
As to the remaining non-individual PAGA claims, the Supreme Court
in Viking River dismissed such claims for lack of statutory
standing. The Defendant requests that this Court follow Viking
River and do the same in the case. In opposition, the Plaintiff
argues the Supreme Court's dismissal of non-individual PAGA claims
in Viking River was based on a mistaken view of California law.
Absent intervening California authority, Judge Nunley declines to
question the Supreme Court's interpretation on this issue. The
Supreme Court clearly set forth that non-individual PAGA claims
should be dismissed once the individual PAGA claim is compelled to
arbitration. Therefore, the Defendant's motion to dismiss
Plaintiff's non-individual PAGA claims is granted.
For the foregoing reasons, Judge Nunley grants the Defendant's
Motion to Compel Arbitration. Accordingly, he compels the
Plaintiff's individual PAGA claim to arbitration and dismisses the
Plaintiff's non-individual PAGA claims. He denies as moot the
Defendant's Motion to Dismiss. As there are no remaining claims
before the Court, the Clerk of Court is directed to close the
case.
A full-text copy of the Court's Sept. 21, 2022 Order is available
at https://tinyurl.com/yx8kmfzw from Leagle.com.
MARRIOTT OWNERSHIP: Suit Seeks to Certify Interest Owner Class
--------------------------------------------------------------
In the class action lawsuit captioned as Merle D. Russ and Ellen
Russ, on behalf of themselves and all others similarly situated, v.
Marriott Ownership Resorts, Inc., Marriott Resorts Hospitality
Corporation, OceanWatch Villas Owners Association, Hardin
Construction Company, LLC, HKS, Inc., Schmidt & Stacey Consulting
Engineers, Inc., Cayce Company, Inc., Royal Concrete, Inc., Cartner
Glass of Myrtle Beach, Inc., All Aspects, Inc., ABG Caulking
Contractors, Inc., TSG Industries, Inc., First Exteriors, LLC, CPP
Enterprises, LLC d/b/a/ Renovia, and CP Rankin, Inc., Case No.
4:20-cv-00187-JD (D.S.C.), the Plaintiff asks the Court to enter an
order certifying her proposed class:
"All owners of legacy timeshare interests in the OceanWatch
Villas Horizontal Property Regime and all owners of trust-
based timeshare interests who own a specific interval
interest in condominium units in the OceanWatch Villas
Horizontal Property Regime, who have paid a pro rata share of
the OWVOA annual dues and Time Share Expenses during the time
period from October 8, 2016 up to, and through, the time of
trial and judgment."
The Plaintiff, and the putative class members, are fractional
owners of time-share units at OceanWatch Villas at Grande Dunes in
Myrtle Beach, South Carolina. OceanWatch is a multi-unit
residential project consisting of 362 units spread out over five
buildings.
Specifically, the plaintiffs allege that MORI, MHRC, and OWVOA
failed to adequately investigate construction deficiencies at the
property; failed to adequately fund the regime to make necessary
repairs; failed to bring suit on behalf of the owners to correct
known construction defects; failed to adequately repair the
property following recent hurricanes; and charging owners for
repairs that should not have been necessary.
A copy of the Plaintiff's motion dated Sept. 20, 2022 is available
from PacerMonitor.com at https://bit.ly/3y00uNg at no extra
charge.[CC]
The Plaintiff is represented by:
Chris Moore, Esq.
Terry E. Richardson, Jr., Esq.
RICHARDSON THOMAS HALTIWANGER
MOORE & LEWIS
383 W. Cheves Street
Florence SC 29501
Telephone: (803) 281-8150
E-mail: chris@richardsonthomas.com
terry@richardsonthomas.com
- and
Robert L. Wylie
James L. Hills, Jr.
MULLEN WYLIE, LLC
Post Office Box 1980
Myrtle Beach, SC 29578
Telephone: (843) 449-4800
E-mail: rwylie@mullenwylie.com
jhills@mullenwylie.com
- and -
George E. Mullen, Esq.
P.O. Box 5969
Hilton Head Island, SC 29938
Telephone: (843) 785-6969
E-mail: gmullen@mullenwylie.com
MAVERICK EXTERIORS: Billhorn Declaration Stricken in Gonzalez Suit
------------------------------------------------------------------
In the case, HECTOR GONZALEZ, on behalf of himself and all other
plaintiffs similarly situated, known and unknown, Plaintiff v.
MAVERICK EXTERIORS, LLC, an Illinois Limited liability company,
GEOFF HANSSLER, individually and ELIZABETH HANSSLER, individually,
Defendants, Case No. 1:21-CV-04276 (N.D. Ill.), Judge Edmond E.
Chang of the U.S. District Court for the Northern District of
Illinois, Eastern Division:
(i) grants Maverick's Motion to Strike; and
(ii) grants in part and denies in part Gonzalez's Motion to
Issue Supplemental Notice.
Mr. Gonzalez used to work for Maverick. He now brings the proposed
class action against his previous employer and its individual
owners, Geoff Hanssler and Elizabeth Hanssler (the Opinion will
refer to Maverick as a stand-in for all the Defendants). Gonzalez
alleges that Maverick illegally failed to pay overtime to him and
other employees. He now seeks overtime pay under the Fair Labor
Standards Act (FLSA), 29 U.S.C. Section 216(b), and the Illinois
Minimum Wage Law (IMWL), 820 ILCS Section 105/1, et seq.
Maverick Exteriors is a residential home construction business
located in Woodstock, Illinois. It performs an array of
construction services related to residential homes, including
constructing and installing "siding, soffits, roofs, gutters,
etc."As owners of Maverick, Geoff and Elizabeth Hanssler are
authorized to carry out its wage and hour practices. Gonzalez,
formerly employed by the Defendants as a laborer and crew leader
between around March 2020 and June 2021, alleges that the
Defendants regularly denied him and other employees overtime pay
and engaged in practices that violate the FLSA and IMWL.
Mr. Gonzalez filed his complaint in August 2021, and was granted
stage-one conditional certification in January 2022. The Court
conditionally certified a collective containing "all past and
present workers who, since August 2018, worked for the Defendants
and were paid on an hourly basis."
As part of the January 2022 certification order, the Court approved
notice and consent forms agreed on by both sides. It authorized the
mailing of the notice to proposed collective members "that may have
been subjected to the alleged practice to not pay overtime premiums
for hours worked in excess of 40 in individual work weeks."
Contained in the Order was a brief description of the case,
information on how collective members could opt-in to the suit or
do nothing, and the legal implications of choosing either option.
The Court directed those interested in joining the suit to complete
and submit a consent form authorizing the filing of claims in
putative collective members' names against the Defendants "for
their alleged failure to pay overtime wages and other alleged
violations."
On Feb. 2, 2022, Gonzalez mailed the approved notice and consent
forms. Eight days after mailing the forms, he was notified that
Maverick had engaged in communications with, and made payments to,
members of the collective action. He emailed Maverick about these
allegations and asked whether it had communicated and paid
collective members in exchange for a release of claims. Maverick
responded later that day, saying that the company indeed had paid
"current and former employees who were employed during the three
years prior to the lawsuit for the half their hourly rate."
According to Maverick, these checks were "hand-delivered" between
Nov. 17 and 19, 2021, before Gonzalez filed the motion for
conditional certification. It insists that it never communicated
with former or current employees about the lawsuit and never
suggested a release from class claims. As proof, Maverick attached
two sample letters, one to current employees and one to former
employees.
Shortly after receiving this information, in mid-February 2021
Gonzalez filed a motion to issue supplemental notice and consent
forms to collective members and to limit future communication by
the Defendants with the members. As part of the briefing on this
dispute, he attached the declaration of his counsel, John Billhorn.
Maverick moved to strike Billhorn's declaration.
In his Motion to Issue Supplemental Notice, Gonzalez requests that
the Court (a) issue to the collective a supplemental notice
clarifying the rights of collective members and (b) limit the
Defendants' future communications with the members. Specifically,
he alleges that Maverick engaged in improper communications with
the collective on their "wage and hour practices and Maverick's
failure to pay legally mandated overtime."
According to the Plaintiff, this "back-channel campaign" has
significantly reduced the likelihood that employees will opt-in to
the suit, and a conversion from Stage One-Conditional Certification
to Class Certification is thus proper. He further requests that
Geoff Hanssler submit to a deposition concerning Maverick's
communications with the collective and that Maverick produce all
records relevant to these contacts with collective members. In
response, Maverick contends that its communications with (and
payments to) potential collective members do not require any
curative action by the Court.
Judge Chang finds that the notices do not provide a full accounting
of the payments nor information that proposed class members might
be entitled to additional damages, interest, or other remedies. The
one-sided presentation sounds authoritative and final (final in
terms of the amounts owed), and thus would naturally pose a risk of
deterring the employees from joining the collective action. What's
more, as the employer of the collective members, Maverick does
wield significant influence over its employees.
Judge Chang opines that it is reasonable for collective members to
believe that their employment or relationship with Maverick could
be jeopardized if they seek additional moneys beyond what Maverick
coughed up after the lawsuit was filed. He concludes that the
supplemental notice attached as R. 27-7 must be distributed to the
collective, with three modifications.
First, on page 2 of the notice, the two sentences, "The Court has
ruled that these unauthorized letters distributed by Defendants
were improper, interfered with this collective action and failed to
properly explain your rights under federal and state law. In
addition to this Supplemental Notice, Judge Chang has ordered the
Defendants to immediately cease from engaging in additional
unauthorized communications with past and present employees that
were issued Notice of this case," will be replaced with this one
sentence: "The Court has ruled that these letters distributed by
Defendants require this additional supplemental notice to explain
your rights under federal and state law."
Second, on page 2 of R. 27-7, the phrase "by themselves" will be
inserted between the words "Overtime Pay letter in no way" and
"waived or compromised your claims or you right to joint this
lawsuit." Third, in the next sentence of R. 27-7, the phrase, "It
is likely that under state and federal law," will be replaced by
"It is possible that under state and federal law."
As a final note, for the supplemental notice to be "proportionate
to the gravity of the offense," Maverick will pay for the costs of
the mailing. Judge Change denies all other requested relief in
Gonzalez's motion.
In its Motion to Strike, Maverick moves to strike the declaration
of Gonzalez's lawyer, John Billhorn. The Defendants advance
multiple grounds for striking the declaration including that the
declaration violates Federal Rule of Evidence 701 and contains no
factual statements. Gonzalez requests that the Court uses its
discretion to admit the "useful, valuable, admissible" aspects of
the declaration.
Judge Chang opines that the entirety of the declaration is
inadmissible. To begin, the declaration violates Federal Rule of
Evidence 701. Billhorn's statements stand in sharp contrast to
statements permitted by Rule 701. Although Billhorn of course may
testify to his own perceptions, he may not offer legal opinions
that require scientific, technical, or other specialized knowledge
as a lay witness. The declaration also contains only argument, not
facts. Billhorn fails to set out any relevant facts in his
declaration. Although he provides a summary of his legal experience
and credentials, sthe vast majority (and only relevant portion) of
his declaration serves as legal analysis concerning Maverick's
interference with Gonzalez's certification notice. Judge Chang
grants the motion to strike.
For these reasons, Judge Chang grants Gonzalez's motion to issue a
supplemental notice to the collective and denies all other
requested relief in the motion. The mailing will be paid by
Maverick and Gonzalez will issue the mailing with reasonable
promptness. Judge Chnag grants Maverick's motion to strike the
declaration of Billhorn. The tracking status hearing of Sept. 23,
2022, is reset to Oct. 28, 2022, at 8:30 a.m., but to track the
case only (no appearance is required). Instead, the parties will
file a status report by Oct. 21, 2022, proposing the next step of
the litigation.
A full-text copy of the Court's Sept. 21, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/43rmc9yh from
Leagle.com.
MDL 2777: Facebook Appeals Ruling on Bid to Dismiss Wilkinson Suit
------------------------------------------------------------------
FACEBOOK, INC. is taking an appeal from a court order granting in
part and denying in part its motion to dismiss filed in the
multi-district litigation captioned In re: Facebook Simulated
Casino-Style Games Litigation, Case No. 5:21-cv-02777-EJD, in the
U.S. District Court for the Northern District of California.
The Plaintiffs, individually and on behalf of all others similarly
situated, filed a class action against Facebook seeking
restitution, damages, an injunction, and other appropriate relief
from Facebook's ongoing participation in an illegal internet
gambling enterprise.
Social casinos are apps, playable from smartphones, tablets, and
Internet browsers, that make the "authentic Vegas-style" experience
of slot machine gambling available to consumers anywhere and
anytime. By moving their casino games directly onto the phones and
computers of players, and by leveraging an innocuous-sounding
"free-to-play" model, social casino companies, along with Facebook,
Google, and Apple (the "Platforms"), have found a way to smuggle
slot machines into the homes of consumers nationwide, 14 hours a
day and 365 days a year, the suit alleges.
By allegedly utilizing Facebook for distribution and payment
processing, the social casinos entered into a mutually beneficial
business partnership. In exchange for distributing the casino
games, providing them valuable data and insight about their
players, and collecting money from consumers, Facebook (and the
other Platforms) take a 30 percent commission off of every wager,
earning them billions in revenue. By comparison, the "house" at a
traditional casino only takes 1-15 percent, while also taking on
significant risk of loss in its operation. Facebook's 22 percent
rake, on the other hand, is guaranteed for its ability to act as a
casino "host" and bankroll.
The Plaintiffs contend that the result (and intent) of this
dangerous partnership is that consumers become addicted to social
casino apps, maxing out their credit cards with purchases amounting
to tens or even hundreds of thousands of dollars. Consumers
addicted to social casinos suffer a variety of non-financial
damages ranging from depression to divorce to attempted suicide.
On April 8, 2022, the Defendant filed a motion to dismiss the
Plaintiffs' complaint, which the Court granted in part and denied
in part through an order entered by Judge Edward J. Davila on
September 2, 2022. The Court held that the Plaintiffs' first and
third theories of liability must be dismissed under section 230 of
the Communications Decency Act. However, the Plaintiffs' second
theory of liability is not barred by section 230.
The appellate case is captioned as Kathleen Wilkinson, et al. v.
Facebook, Inc., Case No. 22-80100, in the United States Court of
Appeals for the Ninth Circuit, filed on September 13, 2022. [BN]
Plaintiffs-Respondents KATHLEEN WILKINSON, individually and on
behalf of all others similarly situated, are represented by:
Jason Henry Alperstein, Esq.
KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT
One West Las Olas Boulevard, Suite 500
Fort Lauderdale, FL 33301
Telephone: (954) 525-4100
- and -
Rafey S. Balabanian, Esq.
Todd Logan, Esq.
EDELSON, PC
150 California Street, 18th Floor
San Francisco, CA 94111
Telephone: (415) 212-9300
- and -
Wesley W. Barnett, Esq.
DAVIS & NORRIS, LLP
2154 Highland Avenue, South
Birmingham, AL 35205
Telephone: (205) 930-9976
- and -
Glenn Chappell, Esq.
TYCKO & ZAVAREEI, LLP
1828 L. Street, NW, Suite 1000
Washington, DC 20036
Telephone: (202) 973-0900
- and -
Gregory Scott Dovel, Esq.
DOVEL & LUNER, LLP
201 Santa Monica Boulevard
Santa Monica, CA 90401
Telephone: (310) 656-7066
- and -
Jay Edelson, Esq.
EDELSON PC
350 N. LaSalle Street, Suite 1400
Chicago, IL 60654
Telephone: (312) 589-6375
- and -
Philip Lawrence Fraietta, Esq.
BURSOR & FISHER, PA
888 7th Avenue
New York, NY 10019
Telephone: (646) 837-7150
- and -
Andrea R. Gold, Esq.
Hassan Zavareei, Esq.
TYCKO & ZAVAREEI, LLP
1828 L Street, NW, Suite 1000
Washington, DC 20036
Telephone: (202) 973-0900
- and -
Cecily Jordan, Esq.
TOUSLEY BRAIN STEPHENS, PLLC
1200 5th Avenue, Suite 1700
Seattle, WA 98101
Telephone: (206) 682-5600
- and -
Jill M. Manning, Esq.
PEARSON, SIMON & WARSHAW, LLP
555 Montgomery Street, Suite 1205
San Francisco, CA 94111
Telephone: (415) 433-9000
- and -
John E. Norris, Esq.
DAVIS & NORRIS, LLP
2154 Highland Avenue, South
Birmingham, AL 35205
Telephone: (205) 541-7759
- and -
Dargan Maner Ware, Esq.
DAVIS & NORRIS, LLP
2154 Highland Avenue, South
Birmingham, AL 35205
Telephone: (205) 930-9900
- and -
Daniel Leon Warshaw, Esq.
PEARSON SIMON & WARSHAW, LLP
15165 Ventura Boulevard
Sherman Oaks, CA 91403
Telephone: (818) 788-8300
- and -
Melissa S. Weiner, Esq.
PEARSON SIMON & WARSHAW, LLP
328 Barry Avenue, S., Suite 200
Wayzata, MN 55391
Telephone: (612) 389-0600
- and -
Sarah N. Westcot, Esq.
BURSOR & FISHER, P.A.
701 Brickell Avenue, Suite 1420
Miami, FL 10019
Telephone: (305) 330-5512
- and -
Alexander Glenn Tievsky, Esq.
EDELSON PC
350 N. LaSalle Street, Suite 1400
Chicago, IL 60654
Telephone: (312) 589-6370
Defendant-Petitioner FACEBOOK, INC. is represented by:
Christopher Chorba, Esq.
GIBSON, DUNN & CRUTCHER, LLP
333 S. Grand Avenue
Los Angeles, CA 90071-3197
Telephone: (213) 229-7396
- and -
Patrick James Fuster, Esq.
GIBSON, DUNN & CRUTCHER, LLP
333 S. Grand Avenue
Los Angeles, CA 90071-3197
Telephone: (213) 229-7117
- and -
Adrienne Michelle Liu, Esq.
GIBSON, DUNN & CRUTCHER, LLP
333 S. Grand Avenue
Los Angeles, CA 90071-3197
Telephone: (213) 229-7468
- and -
Timothy William Loose, Esq.
GIBSON, DUNN & CRUTCHER, LLP
333 S. Grand Avenue
Los Angeles, CA 90071-3197
Telephone: (213) 229-7746
- and -
Sean David Unger, Esq.
PAUL HASTINGS, LLP
101 California Street, 48th Floor
San Francisco, CA 94111
Telephone: (415) 856-7000
MDL 3001: Google Appeals Ruling on Bid to Dismiss Andrews Suit
--------------------------------------------------------------
GOOGLE LLC, et al. are taking an appeal from a court order granting
in part and denying in part their motion to dismiss filed in the
multi-district litigation captioned In re: Google Play Store
Simulated Casino-Style Games Litigation, Case No.
5:21-md-03001-EJD, in the U.S. District Court for the Northern
District of California.
The Plaintiffs, individually and on behalf of all others similarly
situated, filed a class action against the Defendants for
violations of the California Business and Professions Code and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants allegedly partnered with
slot machine companies in order to develop illegal social casino
apps such as DoubleDown Casino. The participation of Google in the
illegal Internet gambling enterprise allows social casino
developers to make the distribution and payment processing online
faster and efficient. As a result of the Defendants' action, more
consumers, including the Plaintiffs, become addicted to social
casino apps, maxing out their credit cards with purchases amounting
to tens or even hundreds of thousands of dollars. Consumers
addicted to social casinos suffer a variety of non-financial
damages ranging from depression to divorce to attempted suicide,
says the suit.
On April 8, 2022, the Defendants filed a motion to dismiss the
Plaintiffs' complaint, which the Court granted in part and denied
in part through an order entered by Judge Edward J. Davila on
September 2, 2022. The Court held that the Plaintiffs' first and
third theories of liability must be dismissed under section 230 of
the Communications Decency Act. However, the Plaintiffs' second
theory of liability is not barred by section 230.
The appellate case is captioned as Jennifer Andrews, et al. v.
Google LLC, et al., Case No. 22-80098, in the United States Court
of Appeals for the Ninth Circuit, filed on September 13, 2022.
[BN]
Plaintiffs-Respondents JENNIFER ANDREWS, individually and on behalf
of all others similarly situated, are represented by:
Rafey S. Balabanian, Esq.
Todd Logan, Esq.
EDELSON, PC
150 California Street, 18th Floor
San Francisco, CA 94111
Telephone: (415) 212-9300
- and -
Alexander Glenn Tievsky, Esq.
EDELSON PC
350 N. LaSalle Street, Suite 1400
Chicago, IL 60654
Telephone: (312) 589-6370
- and -
Wesley W. Barnett, Esq.
DAVIS & NORRIS, LLP
2154 Highland Avenue, South
Birmingham, AL 35205
Telephone: (205) 930-9976
- and -
Gregory Scott Dovel, Esq.
DOVEL & LUNER, LLP
201 Santa Monica Boulevard
Santa Monica, CA 90401
Telephone: (310) 656-7066
- and -
Philip Lawrence Fraietta, Esq.
BURSOR & FISHER, PA
888 7th Avenue
New York, NY 10019
Telephone: (646) 837-7150
- and -
Cecily Jordan, Esq.
TOUSLEY BRAIN STEPHENS, PLLC
1200 5th Avenue, Suite 1700
Seattle, WA 98101
Telephone: (206) 682-5600
- and -
Jill M. Manning, Esq.
PEARSON, SIMON & WARSHAW, LLP
555 Montgomery Street, Suite 1205
San Francisco, CA 94111
Telephone: (415) 433-9000
- and -
John E. Norris, Esq.
DAVIS & NORRIS, LLP
2154 Highland Avenue, South
Birmingham, AL 35205
Telephone: (205) 541-7759
- and -
Dargan Maner Ware, Esq.
DAVIS & NORRIS, LLP
2154 Highland Avenue, South
Birmingham, AL 35205
Telephone: (205) 930-9900
- and -
Sarah N. Westcot, Esq.
BURSOR & FISHER, P.A.
701 Brickell Avenue, Suite 1420
Miami, FL 10019
Telephone: (305) 330-5512
Defendants-Petitioners GOOGLE LLC, et al., are represented by:
Alexander Guy Davis, Esq.
BAKER & MCKENZIE, LLP
600 Hansen Way
Palo Alto, CA 94304
Telephone: (650) 856-2400
- and -
Teresa Michaud, Esq.
BAKER MCKENZIE, LLP
10250 Constellation Boulevard, Suite 1850
Los Angeles, CA 90067
Telephone: (310) 201-4725
- and -
Bradford K. Newman, Esq.
BAKER & MCKENZIE, LLP
600 Hansen Way
Palo Alto, CA 94304
Telephone: (650) 856-2400
META PLATFORMS: Sued Over Violation of Medical Privacy
------------------------------------------------------
Jane Doe, on behalf of herself and all others similarly situated v.
META PLATFORMS, INC., Case No. 3:22-cv-04963-SK (N.D. Cal., Aug.
30, 2022), is brought on behalf of millions of other Americans
whose medical privacy has been violated by Facebook's Pixel
tracking tool and against the Defendant for breach of contract;
breach of the duty of good faith and fair dealing; intrusion upon
seclusion / violation of Article I, section 1 of the California
Constitution; federal and state electronic communications privacy
and wiretap claims; the California Invasion of Privacy Act;
Negligent Misrepresentation; and Violation of California's Unfair
Competition Law.
Facebook knows (or should have known) that its Pixel tracking tool
is being improperly used on hospital websites resulting in the
wrongful, contemporaneous, re-direction to Facebook of patient
communications to register as a patient, sign-in or out of a
supposedly "secure" patient portal, request or set appointments, or
call their provider via their computing device. This unlawful
collection of data is done without the knowledge or authorization
of the patient, like Plaintiff, in violation of federal and state
laws as well as Facebook's own contract with its users.
In the course of receiving medical care at Novant, Plaintiff Doe
has used the patient portal to schedule appointments, access lab
results, and review health information. Unbeknownst to Plaintiff
Jane Doe, and millions of other patients around the country, when
she signed-in to the patient portal, the Facebook Pixel secretly
deployed on the webpage sent the fact that she clicked to sign-in
to the patient portal to Facebook. Likewise, Novant disclosed
identical fields of information when Plaintiff Jane Doe used the
patient portal.
Facebook's collection of patient status and the content of patient
communications with their medical providers, including when they
register, log-in and logout of patient portals and to set up
appointments, in the absence of a HIPAA authorization violates
Facebook's privacy promises to users. Facebook promises users, that
"publishers can send us information through Meta Business Tools
such as the Meta Pixel" but Facebook "requires each of these
partners to have lawful rights to collect, use, and share your data
before providing any data to us."
However, Facebook knowingly receives patient data--including
patient portal usage information—from hundreds medical providers
in the United States that have deployed the Facebook Pixel on their
web properties. To date, through public filings in related cases,
there have been at least 664 hospital systems or medical provider
web properties identified where Facebook has received patient data
via the Facebook Pixel. Despite knowingly receiving health-related
information from medical providers, Facebook has not taken any
action to enforce or validate its requirement that medical
providers obtain adequate consent from patients before providing
patient data to Facebook, says the complaint.
The Plaintiff is a North Carolina resident, Facebook user, and a
patient of Novant who used Novant's patient portal to schedule
appointments, access lab results, and review health information.
Meta Platforms, Inc. (referred to herein by its previous name of
"Facebook") is a publicly traded Delaware corporation headquartered
in Menlo Park, California.[BN]
The Plaintiff is represented by:
Michael F Ram, Esq.
MORGAN & MORGAN COMPLEX LITIGATION GROUP
711 Van Ness Avenue, Suite 500
San Francisco, CA 94102
Phone: (415) 358-6913
Facsimile: (415) 358-6923
Email: mram@ForThePeople.com
- and -
John A Yanchunis, Esq.
Ryan J Mcgee, Esq.
MORGAN & MORGAN COMPLEX LITIGATION GROUP
201 North Franklin Street, 7th Floor
Tampa, FL 33602
Phone: (813) 559-4908
Facsimile: (813) 222-4795
Email: jyanchunis@ForThePeople.com
rmcgee@ForThePeople.com
META PLATFORMS: Willis Sues Over Interception of Browsing Activity
------------------------------------------------------------------
Gabriele Willis and Kerreisha Davis, individually and on behalf of
all others similarly situated v. META PLATFORMS, INC., Case No.
3:22-cv-05376 (N.D. Cal., Sept. 21, 2022), is brought seeking
relief for all persons who used Meta's Facebook app and whose
private browsing activity and communications were intercepted,
monitored and recorded while using Facebook's in-app browser
without their consent.
Beginning in April 2021, Apple's iOS 14.5 update required Meta to
obtain its users' consent before tracking their internet activity
on apps and third-party websites. As a result, Meta lost access to
its primary stream of revenue, derived from the user data it
extracted from this surveillance. Now, even when users do not
consent to being tracked, Meta tracks Facebook users' online
activity and communications with external third-party websites by
injecting JavaScript code into those sites.
When users click on a link within the Facebook app, Meta
automatically directs them to the in-app browser it is monitoring
instead of the smartphone's default browser, without telling users
that this is happening or they are being tracked. The user
information Meta intercepts, monitors and records includes
personally identifiable information, private health details, text
entries, and other sensitive confidential facts.
Meta's undisclosed tracking of citizens' browsing activity and
communications violates federal and state privacy and other laws,
entitling the Plaintiffs and Class members to damages. Plaintiffs
also seek through this action to put a stop to Meta's undisclosed
tracking of its user base, says the complaint.
The Plaintiffs had active Facebook accounts during the Class
period.
Meta is the owner and operator of, among other businesses,
Facebook, a large social media platform.[BN]
The Plaintiffs are represented by:
Adam E. Polk, Esq.
Jordan Elias, Esq.
Simon Grille, Esq.
Kimberly Macey, Esq.
GIRARD SHARP LLP
601 California Street, Suite 1400
San Francisco, CA 94108
Phone: (415) 981-4800
Email: apolk@girardsharp.com
jelias@girardsharp.com
sgrille@girardsharp.com
kmacey@girardsharp.com
METROPOLITAN LIFE: McHugh Suit Removed to C.D. California
---------------------------------------------------------
The case styled as Barbara McHugh, Charles Patrick McHugh, John
Ellsworth, and all others similarly situated v. Metropolitan Life
Insurance Company, Case No. 22STCV21912 was removed from the Los
Angeles Superior Court, to the U.S. District Court for Central
District of California on Aug. 30, 2022.
The District Court Clerk assigned Case No. 2:22-cv-06152-SB-AS to
the proceeding.
The nature of suit is stated as Insurance.
MetLife, Inc. -- https://www.metlife.com/ -- is the holding
corporation for the Metropolitan Life Insurance Company, better
known as MetLife, and its affiliates.[BN]
The Plaintiffs are represented by:
Matthew Peter Kelly, Esq.
LAW OFFICE OF MATTHEW KELLY
4652 Glenalbyn Drive
Los Angeles, CA 90065
Phone: (310) 483-3608
Email: mpk@matthewpkellylaw.com
The Defendant is represented by:
Michael J Duvall, Esq.
DENTONS US LLP
601 South Figueroa Street Suite 2500
Los Angeles, CA 90017
Phone: (213) 623-9300
Fax: (213) 623-9924
Email: michael.duvall@dentons.com
MGM RESORTS: Scherer Sues Over Unlawful Taxing of Players
---------------------------------------------------------
Leane Scherer, individually and one behalf of all others similarly
situated v. MGM RESORTS INTERNATIONAL, Case No.
1:22-cv-00258-HSO-BWR (S.D. Miss., Sept. 21, 2022), is brought the
seek judgment for damages against the Defendant with regards to
their unlawful taxing of its players by refusing to refund cash
change.
The casinos set the rules and the players agreed to those rules
when they changed their money spend the will roll the dice or ante
up. The casinos are ensured their winnings because the games are
operated on a cash-on-the-barrel basis. The players are supposed to
be ensured their winnings because the Casinos are highly regulated
and follow strict rules in order to preserve the public trust and
their right to operate. The Casinos have broken those wildly
understood and apparent rules, have violated the public trust, and
are liable to the class members. The Casinos have been taxing their
players by manipulating the cash out system employed by their
electronic gaming systems, (hereafter "Slot Machines").
When a player wishes to cash out, on the overwhelming majority of
the Casinos' machines, she presses a button or display mark "Cash
Out." In early generations of slot machines, coins would be
dispensed at that point. In today's Slot Machines, instead, the
machine automatically generates a Gaming Voucher that reflects and
represents the amount owed by the casino to the player.
Since the adoption of electronic Slot Machines, these Gaming
Vouchers have been used as a convenience for the Casinos; they do
not have to stock each machine with cash and can instead stock a
few automatic cash-out machines ("Kiosks"). For decades, players
would insert a Gaming Voucher into the Kiosk at the casinos and
most other casinos, and the Kiosks would pay them in exchange, in
cash.
During the COVID-19 pandemic, the casinos allegedly grappled with a
coin shortage. Many similarly situated businesses posted signs
informing customers that they were unable to pay exact change due
to the shortage. In fact, many of the defendant casinos competitors
adopted responsible practices to notify players of the inability to
pay change.
For the last few years, the defendants have essentially been
keeping the change off of hundreds of thousands of gaming vouchers,
essentially robbing their customers a few cents at a time on
millions of transactions. When a player inserts a Gaming Voucher
into a kiosk at one of the Defendants' establishments, the Kiosk
runs down to the nearest dollar and pays that amount in cash. The
Kiosk then generates a TRU ticket that represents the amount of
change that was not paid out.
The TRU ticket is not cash and has no value outside of the casino
The Dru ticket can only be cashed at the main cashier's window
Commonly referred to as the casino "Cage." There are no signs
posting saying that the Defendants do not pay change at the Kiosk.
There is no notice on the TRU ticket that it can only be cashed out
at the Cage. The Plaintiff is similarly situated with hundreds of
thousands of Casino patrons who have been deprived, little by
little, of millions of dollars since the Defendants adoption of its
no-change policy, says the complaint.
The Plaintiff checked into the Beau Rivage Resort and Casino on
June 14, 2022, a property owned and operated by the defendant.
The Defendant is a casino operator.[BN]
The Plaintiff is represented by:
Ryan J. Richmond, Esq.
STERNBERG, NACCARI AND WHITE LLC
251 Florida St., Ste. 203
Baton Rouge, LA 70801-1703
Phone: (225) 412-3667
Fax: (225) 286-3046
Email: ryan@snw.law
- and -
Scott L. Sternberg, Esq.
M. Suzanne Montero, Esq.
Keith J. Naccari, Esq.
Graham H. Williams, Esq.
935 Gravier St., Ste. 2020
New Orleans, LA, 70112
Phone: 504.324.2141
Fax: 504.534.8961
Email: scott@snw.law
scott@snw.law
suzy@snw.law
keith@snw.law
graham@snw.law
- and -
Lawrence J. Centola III, Esq.
Jason Z. Landry, Esq.
MARTZELL, BICKFORD & CENTOLA
338 Lafayette St.
New Orleans, LA 70130
Phone: (504) 581-9065
Email: ljc@mbfirm.com
jzl@mbfirm.com
MIGNON FAGET: Dicks Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Mignon Faget, Ltd.
The case is styled as Victoria Dicks, on behalf of herself and all
others similarly situated v. Mignon Faget, Ltd., Case No.
1:22-cv-08063 (S.D.N.Y., Sept. 21, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Mignon Faget -- https://www.mignonfaget.com/ -- blends New Orleans
architecture, local wildlife, and everyday objects to create
timeless jewelry and houseware designs.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
MIJ INC: Price Sues Over Failure to Pay Proper OT Compensation
--------------------------------------------------------------
Brandi Price, individually and on behalf of all others similarly
situated v. MIJ, INC., Case No. 1:22-cv-05216 (N.D. Ill., Sept. 26,
2022), is brought against the Defendant to seek a declaratory
judgment, monetary damages, liquidated damages, prejudgment
interest, and a reasonable attorney's fee and costs as a result of
the Defendant's policy and practice of failing to pay proper
overtime compensation under the Fair Labor Standards Act and the
Illinois Minimum Wage Law, and the payment provisions of the
Illinois Wage Payment and Collection Act.
The Defendant did not pay the Plaintiff and other Dancers an hourly
or salary rate. The Defendant did not pay the Plaintiff and other
Dancers any wage at all. The Plaintiff and other Dancers received
tips from the Defendant's customers. The Plaintiff and other
Dancers were required to share their tips with the Defendant,
managers, the DJ, the "house mom" and other employees who did not
"customarily and regularly receive tips." The Plaintiff and other
Dancers were required to pay the Defendant between $100 and $250
each shift before they could perform any dances. The tips which the
Plaintiff and other Dancers were allowed to keep constituted the
entirety of their pay.
The Defendant knew or should have known that the FLSA applied to
the operation of an adult entertainment club. The Defendant knew of
or should have been aware of previous litigation and enforcement
actions relating to wage and hour violations where the
misclassification of exotic dancers as independent contractors
under the FLSA was challenged. The Plaintiff worked over 40 hours
in some weeks while employed by the Defendant. Other Dancers also
regularly or occasionally worked over 40 hours in some weeks during
their employment with the Defendant. The Plaintiff and other
Dancers are entitled to wages and compensation based on the
standard minimum wage for all hours worked. The Plaintiff and other
Dancers are entitled to 1.5x their regular hourly rate for hours
worked over 40 each week, says the complaint.
The Plaintiff was employed at the Defendant's club in Harvey,
Illinois, called Club O as a Dancer from November of 2018 until
November of 2020.
The Defendant owns a club in Harvey, Illinois, called Club O and a
club in Hammond, Indiana, called Wiggles.[BN]
The Plaintiff is represented by:
Krista Sheets, Esq.
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Parkway, Suite 510
Little Rock, AK 72211
Phone: (501) 221-0088
Facsimile: (888) 787-2040
Email: krista@sanfordlawfirm.com
josh@sanfordlawfirm.com
MMM CONSUMER BRANDS: Gomez Suit Removed to M.D. Florida
-------------------------------------------------------
The case styled as Marissa Gomez, individually and on behalf of all
others similarly situated v. MMM Consumer Brands Inc., Case No.
22-CA-002008 was removed from the Sixth Judicial Circuit Court, in
and for Pasco County, Florida, to the U.S. District Court for
Middle District of Florida on Aug. 31, 2022.
The District Court Clerk assigned Case No. 8:22-cv-02005-VMC-AEP to
the proceeding.
The nature of suit is stated as Other P.I.
MMM Consumer Brands Inc. doing business as Dinnerly --
www.dinnerly.com -- is the affordable meal delivery service on the
market.[BN]
The Plaintiff is represented by:
Benjamin W. Raslavich, Esq.
KUHN RASLAVICH, P.A.
2110 West Platt Street
Tampa, FL 33606
Phone: (813) 422-7782
Fax: (813) 422-7783
Email: ben@thekrfirm.com
The Defendant is represented by:
Aaron S. Weiss, Esq.
Michael Gregory Zilber, Esq.
CARLTON FIELDS, P.A.
700 NW 1st Avenue, Suite 1200
Miami, FL 33136
Phone: (305) 530-0050
Fax: (305) 530-0055
Email: aweiss@carltonfields.com
mzilber@carltonfields.com
MOSQUITO SQUAD: Lenorowitz's Bid for Class Certification Granted
----------------------------------------------------------------
In the case, SAMUEL LENOROWITZ, Plaintiff v. MOSQUITO SQUAD OF
FAIRFIELD AND WESTCHESTER COUNTY, Defendant, Civil No.
3:20-cv-01922 (JBA) (D. Conn.), Judge Janet Bond Arterton of the
U.S. District Court for the District of Connecticut grants the
Plaintiff's motion for class certification.
Mr. Lenorowitz brings claims for damages and injunctive relief
against the Defendant under the Telephone Consumer Protection Act
("TCPA'), 47 U.S.C. Section 227, stemming from a ringless
pre-recorded message delivered to his voicemail inbox. The
Plaintiff has moved to certify a class of approximately 9,186
others who received the same message.
The background for the putative class action is a single ringless
message that was sent to the voicemail inboxes of the Plaintiff and
the Defendant's other customers. In June 2017, the Plaintiff called
Mosquito Squad seeking to sign up for its tick and mosquito control
services. He remained an active customer through September 2019. In
May 2019, the Defendant used an online platform "Slybroadcast,"
operated by MobileSphere, to send a recorded message to the
voicemail inboxes of customers advertising its "Tick and Tube
Granular" services. The Plaintiff was among 9,186 customers who
received the message.
The message stated: "Hi this is Maria with Mosquito Squad. We sent
you an email last week with details about our two supplemental tick
control options, and I wanted to see if you had any questions.
While tick tubes and granary treatments can be added to your
current back pack service, tick tubes eliminate the nymph-stage
tick underground and granular products increase the elimination
rate of adult ricks above ground. Please call me back if you would
like to discuss how we can go above and beyond to control ticks on
your property. My number is 877-337-4415. Thank you and have a
great day."
After the Plaintiff received the voicemail message, he did not ask
the Defendant to stop but instead contacted Mr. Zelman, his
neighbor and current counsel of record, to consult about the
voicemail message on his personal cell phone. Subsequently, the
Plaintiff commenced the lawsuit on behalf of himself and the
Defendant's other customers who received its message.
The Plaintiff seeks to certify a class of individuals who he
believes received the same ringless pre-recorded voicemail messages
in violation of the TCPA.
The Plaintiff defines the putative class as: "All persons within
the United States, other than any of Plaintiffs counsel, who (1)
received a pre-recorded voice message; (2) from or on behalf of the
Defendant, placed via the Mobile Sphere platform, (3) marketing or
promoting Defendant's services (4) during the rime period of April
1, 2019 to the present."
Additionally, he proposes that his litigation counsel AH Marcus and
Yitzchak Zelman, Esq., be appointed as class counsel. Through
discovery, he has determined that a potential 9,186 individuals
will be members in the putative class, amply satisfying the
numerosity requirement of Rule 23. He claims that all these
individuals received the same unsolicited pre-recorded voice
message, satisfying the commonality requirement of Rule 23.
Moreover, the Plaintiff argues that the typicality requirement is
met because there is no conflict between his claims and those of
the class. He maintains that the proposed class counsel is adequate
because both are qualified and there are no conflicts of interests
between counsel and the putative class.
The Plaintiff also maintains that the requirements of Rule 23(b)(3)
are satisfied. A class action may be maintained under Rule 23(b)(3)
if "the court finds that the questions of law or fact common to
class members predominate over any questions affecting only
individual members, and that a class action is superior to other
available methods for fairly and efficiently adjudicating the
controversy." Thus, Rule 23(b)(3) incorporates two requirements:
(1) the questions of law or fact common to the class members
predominate over any questions affecting only individual class
members; and (2) "a class action be superior to other available
methods for fairly and efficiently adjudicating the controversy."
The Plaintiff maintains both are met. First, for the reasons
expressed in support of the commonality and typicality
requirements, it is submitted that this requirement is met,
particularly where the only issue in the action is whether the
Defendant's use of these unsolicited pre-recorded voice messages
violates the TCPA. Second, he contends that "the class members'
interests in litigating separate actions is likely minimal given
their potentially limited means with which to do so and the
prospect of relatively small recovery in individual actions." Thus,
he maintains that a class action to address the repeated violations
of the TCPA in the same manner is appropriate.
The Defendant opposes class certification on five grounds. First,
the Plaintiff is unable to demonstrate that standing exists for the
entirety of the class. Second, the Plaintiffs class definition is
overbroad. Third, the class is not ascertainable because individual
issues predominate over common issues. Fourth, yjr Plaintiff is an
inadequate class representative. Fifth, a class action is not a
superior avenue for putative members to pursue TCPA claims against
the Defendant.
After reviewing the Defendant's arguments, Judge Arterton concludes
that none are persuasive barriers to the Plaintiff's proposed class
certification. First, she denies the Defendant's motion to deny
class certification based on lack of standing. She finds no
persuasive distinction has been shown between this single
unsolicited, prerecorded voicemail advertisement and the
circumstances addressed in either Melito v. Experian Mktg. Sols.,
Inc. or Gorss Motels, Inc. v. Lands' End, Inc., No. 20-589-CV, 2021
WL 1915998 (2d Cir. May 13, 2021).
Next, the Defendant maintains that the class that the Plaintiff
seeks to certify is overbroad because the definition includes all
prerecorded calls to all types of telephone lines, and the TCPA
applies only to calls made to cell phones and residential telephone
lines.
The Plaintiff proposes redefining the class to include only those
who received messages on a cell phone or residential landline, thus
tracking the TCPA: "a) All persons within the United States, other
than any of Plaintiffs counsel, b) who received a pre-recorded
voice message, on either a cellular phone or a residential
landline, c) from or on behalf of the Defendant, placed via the
Mobile Sphere platform, d) marketing or promoting Defendant's
services e) during the time period of April 1, 2019 to the
present."
Judge Arterton holds that the revised class definition meets the
Defendant's challenge, and it will be used in notices to the
putative class members.
The Defendant next argues that the class is not ascertainable
because three individualized inquiries predominate over the issues
common to the putative class: (1) whether individual putative class
members received the messages on cell phones or otherwise; (2)
whether class members phone numbers were registered or used as
residential vs. business lines; and (3) whether the message was
listened to by the consumer.
The Fifth Circuit interpreted the TCPA text related to "using" an
"artificial or pre-recorded voice" or "any automatic telephone
dialing system," to be best understood as requiring that the
artificial or pre-recorded voice "spoke," and "that making a call
in which a prerecorded voice might, but does not, play is not a
violation of the TCPA." Judge Arterton finds it sufficient under
the TCPA for the Plaintiff to demonstrate that a message containing
a pre-recorded voice was successfully delivered to his voice
mailbox.
The Defendant challenges the Plaintiffs adequacy as a
representative "due to his personal relationship with his legal
counsel, Mr. Zelman." The Plaintiff and his counsel are neighbors,
attend the same synagogue, their children have attended school
together, and on a couple of occasions the Plaintiff's daughter
provided babysitting services for Mr. Zelnian's children.
Judge Arterton holds that notwithstanding the Plaintiff and the
counsel's shared relationships and receipt of the same pre-recorded
message, the Defendant shows no clear conflict of interest, and the
Plaintiffs counsel has opted out of the class to avoid any
appearance of potential conflict. She is satisfied that the
Plaintiff and his counsel will adequately represent the class.
Finally, the Defendant disputes the superiority of a class action
because (1) the TCPA provides sufficient incentives for plaintiffs
to proceed individually in court, and (2) the crushing class
damages far out of proportion to any harm suffered by the
Plaintiff."
Judge Arterton holds that in the absence of any insurmountable
difficulties in managing the case as a class action, she concludes
that a class action is the superior method of fairly and
efficiently adjudicating the case.
Accordingly, for the forgoing reasons, Judge Arterton grants the
Plaintiffs Motion for Class Certification. The parties are directed
to submit proposed class notice documents and procedures within 14
days from the date this ruling is docketed.
A full-text copy of the Court's Sept. 21, 2022 Ruling is available
at https://tinyurl.com/43z985jp from Leagle.com.
MY PILLOW: Deutsch Seeks to Certify Class of Call Center Reps
-------------------------------------------------------------
In the class action lawsuit captioned as BRANDON DEUTSCH,
individually and on behalf of all similarly situated individuals,
v. MY PILLOW, INC., Case No. 0:20-cv-00318-SRN-ECW (D. Minn.), the
Plaintiff asks the Court to enter an order:
1. Certifying a class action pursuant to Fed. R. Civ. P. 23
and the Minnesota Payment of Wages Act defined as:
"All former Call Center Representatives, or other job
titles performing similar job duties, employed by My
Pillow, Inc., at any time from January 24, 2017 to
December 31, 2020, who were not paid for all hours
worked;"
2. Appointing the following Class Representatives:
a. Named Plaintiff Brandon Deutsch; and
b. Opt-in Plaintiff Craig Lyons.
3. appointing Johnson Becker, PLLC as Class Counsel.
A copy of the Plaintiff's motion to certify class dated Sept. 22,
2022 is available from PacerMonitor.com at https://bit.ly/3LPOWSI
at no extra charge.[CC]
The Plaintiff is represented by:
Jacob R. Rusch, Esq.
Timothy J. Becker, Esq.
Zackary S. Kaylor, Esq.
JOHNSON BECKER, PLLC
444 Cedar Street, Suite 1800
Saint Paul, MN 55101
Telephone: (612) 436-1800
Facsimile: (612) 436-1801
E-mail: jrusch@johnsonbecker.com
tbecker@johnsonbecker.com
zkaylor@johnsonbecker.com
NATIONAL BASKETBALL: Discloses Subscribers' Info, Salazar Alleges
-----------------------------------------------------------------
MICHAEL SALAZAR, Individually and on behalf of all others similarly
situated v. NATIONAL BASKETBALL ASSOCIATION, Case No. 1:22-cv-07935
(S.D.N.Y., Sept. 16, 2022) alleges that NBA violated the federal
Video Privacy Protection Act.
The Plaintiff's claims arise from the NBA's practice of knowingly
disclosing to a third party, Meta Platforms, Inc., data containing
Plaintiff's and other digital-subscribers Class Members'
-- (i) personally identifiable information or Facebook ID
(FID) and
-(ii) the computer file containing video and its corresponding
URL viewed (Personal Viewing Information).
This is a consumer digital privacy class action complaint against
NBA, as the owner of NBA.com, for violating the VPPA by disclosing
its digital subscribers' identities and Video Media to Facebook
without the proper consent.
Like other businesses with an online presence, the Defendant
collects and shares the personal information of visitors to its
website and mobile application with third parties. The Defendant
does this through cookies, software development kits (SDK), and
pixels. In other words, digital subscribers to NBA.com have their
personal information disclosed to Defendant's third-party business
partners, the suit asserts.
The Facebook pixel is a code Defendant installed on NBA.com
allowing it to collect users' data. More specifically, it tracks
when digital subscribers enter NBA.com or NBA.com's accompanying
App and view Video Media. NBA.com tracks and discloses to Facebook
the digital subscribers' viewed Video Media, and most notably, the
digital subscribers' FID. This occurs even when the digital
subscriber has not shared (nor consented to share) such
information, says the suit.[BN]
The Plaintiff is represented by:
Michael L. Murphy, Esq.
BAILEY & GLASSER LLP
1055 Thomas Jefferson Street NW, Suite 540
Washington, DC 20007
Telephone: (202) 494-3531
E-mail: mmurphy@baileyglasser.com
- and -
Brandon M. Wise, Esq.
Adam Florek, Esq.
P IFFER WOLF CARR
KANE CONWAY & WISE, LLP
73 W. Monroe, 5th Floor
Chicago, IL 60604
Telephone: (312) 444-0734
E-mail: bwise@peifferwolf.com
aflorek@peifferwolf.com
NCB MANAGEMENT: Smith Files FDCPA Suit in E.D. Pennsylvania
-----------------------------------------------------------
A class action lawsuit has been filed against NCB Management
Services, Inc. The case is styled as Shannon Smith, individually
and on behalf of all others similarly situated v. NCB Management
Services, Inc., Case No. 2:22-cv-03574-GEKP (E.D. Pa., Sept. 7,
2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
NCB Management Services, Inc. -- https://www.ncbi.com/ -- is a
national accounts receivable management company and debt
buyer.[BN]
The Plaintiff is represented by:
Scott Howard Bernstein, Esq.
LAW OFFICES OF SCOTT H. BERNSTEIN, LLC
101 Eisenhower Parkway, Suite 300
Roseland, NJ 07068
Fax: (203) 246-2887
Email: scott@scottbernsteinlaw.com
NELNET SERVICING: Ballard Files Suit in D. Nebraska
---------------------------------------------------
A class action lawsuit has been filed against Nelnet Servicing,
LLC. The case is styled as Carey M. Ballard, individually and on
behalf of all others similarly situated v. Nelnet Servicing, LLC,
Case No. 4:22-cv-03185-JMG-CRZ (D. Neb., Sept. 1, 2022).
The nature of suit is stated as Other P.I. for Personal Injury.
Nelnet -- https://nelnetinc.com/ -- is the largest operating
businesses engage in student loan servicing, tuition payment
processing and school information systems, and communications.[BN]
The Plaintiff is represented by:
Bryan L. Bleichner, Esq.
CHESTNUT CAMBRONNE PA
100 Washington Avenue South, Suite 1700
Minneapolis, MN 55401
Phone: (612) 339-7300
Fax: (612) 336-2940
Email: bbleichner@chestnutcambronne.com
- and -
David K. Lietz, Esq.
MILBERG LAW FIRM
5335 Wisconsin Avenue NW, Suite 440
Washington, DC 20015
Phone: (866) 252-0878
Email: dlietz@milberg.com
- and -
Gary M. Klinger, Esq.
MILBERG, COLEMAN LAW FIRM - ILLINOIS
227 West Monroe Street, Suite 2100
Chicago, IL 60606
Phone: (866) 252-0878
Email: gklinger@milberg.com
NELNET SERVICING: Hegarty Files Suit in D. Nebraska
---------------------------------------------------
A class action lawsuit has been filed against Nelnet Servicing,
LLC. The case is styled as Jennifer Hegarty, individually and on
behalf of all others similarly situated v. Nelnet Servicing, LLC,
Case No. 4:22-cv-03185-JMG-CRZ (D. Neb., Sept. 2, 2022).
The nature of suit is stated as Other P.I. for Personal Injury.
Nelnet -- https://nelnetinc.com/ -- is the largest operating
businesses engage in student loan servicing, tuition payment
processing and school information systems, and communications.[BN]
The Plaintiff is represented by:
David K. Lietz, Esq.
MILBERG LAW FIRM
5335 Wisconsin Avenue NW, Suite 440
Washington, DC 20015
Phone: (866) 252-0878
Email: dlietz@milberg.com
- and -
Gary M. Klinger, Esq.
MILBERG, COLEMAN LAW FIRM - ILLINOIS
227 West Monroe Street, Suite 2100
Chicago, IL 60606
Phone: (866) 252-0878
Email: gklinger@milberg.com
- and -
John C. Sherwood, Esq.
10205 N. Pennsylvania Ave.
Oklahoma City, OK 73120
Phone: (405) 235-1560
Email: gklinger@milberg.com
- and -
Lori G. Feldman, Esq.
GEORGE, GESTEN LAW FIRM
102 Half Moon Bay Drive
Croton on Hudson, NY 10520
Phone: (917) 983-9321
Fax: (888) 421-4173
Email: lfeldman@4-justice.com
- and -
William B. Federman, Esq.
FEDERMAN, SHERWOOD LAW FIRM
10205 North Pennsylvania Avenue
Oklahoma City, OK 73120
Phone: (405) 235-1560
Email: wbf@federmanlaw.com
NELNET SERVICING: Spearman Files Suit in D. Nebraska
----------------------------------------------------
A class action lawsuit has been filed against Nelnet Servicing,
LLC. The case is styled as William Spearman, Brittni Linn, Jessica
Alexander, Christopher Sangmeister, Taylor Vetter, Nichole Allocca,
Kayli Lazard, Bridget Cahill, individually and on behalf of all
others similarly situated v. Nelnet Servicing, LLC, Case No.
4:22-cv-03191-JMG-CRZ (D. Neb., Sept. 7, 2022).
The nature of suit is stated as Contract: Recovery Student Loan for
Breach of Contract.
Nelnet -- https://nelnetinc.com/ -- is the largest operating
businesses engage in student loan servicing, tuition payment
processing and school information systems, and communications.[BN]
The Plaintiffs are represented by:
Anthony M. Christina, Esq.
LOWEY DANNENBERG LAW FIRM
One Tower Bridge
100 Front Street, Suite 520
West Conshohocken, PA 19081
Phone: (215) 399-4770
Email: achristina@lowey.com
- and -
Christian Levis, Esq.
Johnathan P. Seredynski, Esq.
LOWEY DANNENBERG LAW FIRM - NY
44 South Broadway, Suite 1100
White Plains, NY 10601
Phone: (914) 997-0500
Fax: (914) 997-0035
Email: clevis@lowey.com
jseredynski@lowey.com
- and -
Ian W. Sloss, Esq.
Steven L. Bloch, Esq.
Zachary A. Rynar, Esq.
SILVER GOLUB LAW FIRM
One Landmark Square, 15th Floor
Stamford, CT 06901
Phone: (203) 325-4491
Email: isloss@sgtlaw.com
sbloch@sgtlaw.com
zrynar@sgtlaw.com
- and -
Jeana L. Goosmann, Esq.
GOOSMANN LAW FIRM - SIOUX CITY
410 Fifth Street
Sioux City, IA 51101
Phone: (712) 226-4000
Fax: (712) 224-4517
Email: GoosmannJ@goosmannlaw.com
- and -
Joel M. Carney, Esq.
Joseph V. Messineo, Esq.
GOOSMANN LAW FIRM - OMAHA
17838 Burke Street, Suite 250
Omaha, NE 68118
Phone: (402) 280-7648
Fax: (402) 505-3967
Email: carneyj@goosmannlaw.com
messineoj@goosmannlaw.com
NETFLIX INC: Bids to Dismiss City of East St. Louis Suit Granted
----------------------------------------------------------------
In the case, CITY OF EAST ST. LOUIS, Individually and on behalf of
all others similarly situated, Plaintiff v. NETFLIX, INC., DISNEY
PLATFORM DISTRIBUTION, INC., APPLE, INC., HULU, INC., WARNERMEDIA
DIRECT, LLC, AMAZON.COM SERVICES, LLC, CBS INTERACTIVE, INC.,
YOUTUBE, LLC, CURIOSITYSTREAM, INC., PEACOCK TV, LLC, DIRECTV, LLC,
and DISH NETWORK, LLC, Defendants, Case No. 3:21-CV-561-MAB (S.D.
Ill.), Magistrate Judge Mark A. Beatty of the U.S. District Court
for the Southern District of Illinois grants the Defendants'
motions to dismiss.
In Illinois, all persons or entities "seeking to provide cable
service or video service" are required to obtain authorization from
the government to provide their services. Such authorization is
commonly referred to as a "franchise." In the past, providers had
to obtain authorization from each individual municipality. But
since 2007, when Illinois enacted the Cable and Video Competition
Law (220 ILL. COMP. STAT. 5/21-100, et. seq) (the "CVCL"),
providers can now obtain a single state-wide authorization from the
Illinois Commerce Commission.
The CVCL defines "video service" to include "video programming that
is provided through wireline facilities located at least in part in
the public rights-of-way without regard to delivery technology,
including internet protocol technology. But it expressly excludes
from the "video service" definition "video programming provided by
a commercial mobile service provider or any video programming
provided solely as part of, and via, service that enables users to
access content, information, electronic mail, or other services
offered over the public internet." If an entity's services fall
within the definition, it must obtain a State-issued authorization
from the Illinois Commerce Commission before it can "use the public
rights-of-way for the installation or construction of facilities
for the provision of cable service or video service or offer cable
service or video service."
The CVCL imposes numerous requirements on "holders," that is
entities who are granted state-wide authorizations to offer or
provide cable or video service. Most notably, holders are required
to pay a service provider fee to all local units of government
within whose boundaries the holders offer cable or video service.
To that end, before offering cable service or video service within
the jurisdiction of a local unit of government, a holder is
required to notify the local unit of government. The local unit of
government is then required to adopt an ordinance imposing the
service provider fee.
The instant case involves the CVCL's application to the 12
Defendants, who are all "over the top" video service providers that
charge subscribers a fee to access and stream their programming
over the Internet. To watch the Defendants' video content,
subscribers use their own internet-connected device (such as smart
televisions, streaming media players like Roku or Apple TV,
tablets, smartphones, personal computers, etc.). And subscribers
connect to the internet through the internet service provider
("ISP") of their choice. The Defendants' video content is delivered
from their servers to subscribers' devices through third-party
ISPs' wireline facilities located in the public rights-of-way. The
Defendants do not provide internet access, nor do they own,
control, or operate wireline facilities in any Illinois public
right-of-way.
The City of East St. Louis, Illinois brought the putative class
action against Defendants on behalf of all Illinois cities,
villages, incorporated towns, and counties in which one or more of
the Defendants provide video service. It alleges that the
Defendants have all engaged in ongoing violations of the Illinois
CVCL by providing video service using the public rights-of-way
without first obtaining authorization from the Illinois Commerce
Commission and without paying the requisite fees to municipalities
(Counts 1 and 2). The Plaintiff also asserts claims for trespass
(Count 3), unjust enrichment (Count 4), and violation of East St.
Louis Municipal Ordinance Section 82-19 (Count 5).
The matter is currently before the Court on the Motions to Dismiss
filed by each of the Defendants. The Plaintiff filed an omnibus
response in opposition to the motions to dismiss, and each
Defendant filed a reply brief. The Defendants also requested leave
to file supplemental authority in support of their motions to
dismiss, which the Court granted over the Plaintiff's opposition.
The Plaintiff alleges that the Defendants violated the CVCL by
failing to obtain a State-issued authorization for their video
service, failing to provide notice to municipalities prior to
providing video service, and failing to pay municipalities the
required video service provider fees.
The Defendants offer a myriad of independent reasons as to why
Counts 1 and 2 should be dismissed. For example, they argue the
CVCL does not apply to them because they are not facilities-based
providers and do not have any physical infrastructure (e.g., poles,
wires and cables buried underground, utility boxes, etc.) in the
public rights-of-way. They argue they are excluded from the CVCL
under the public internet exemption. They argue the CVCL is
preempted by various statutes, conflicts with Orders from the
Federal Communications Commission, and that its application would
violate the Internet Tax Freedom Act, the United States
Constitution, the Illinois Constitution.
Judge Beatty, however, need not reach any of those arguments
because he finds another threshold argument is dispositive: The
CVCL does not provide the Plaintiff with a right of action. No
provision of the CVCL expressly authorizes anyone -- not the
Attorney General nor a local government -- to bring suit against a
"non-holder." The statute did not contemplate suits such as the
instant case to compel video service providers who are non-holders
to apply for a state-wide authorization under the CVCL or to comply
with the CVCL's requirements. The Plaintiff also has failed to
establish that it has a right of action to bring the lawsuit based
on home rule authority. Lastly, the Plaintiff does not have an
express or implied right of action under the CVCL to bring the suit
against the Defendants.
Accordingly, Counts 1 and 2 must be dismissed pursuant to Rule
12(b)(6) for failure to state a claim. The dismissal is with
prejudice because any amendment would be futile given that the CVCL
does not provide the Plaintiff with a cause of action.
The complaint alleges that the Defendants have committed a trespass
by unlawfully entering upon the property of the Plaintiff by
causing their video content to be delivered to subscribers via
wireline facilities located at least partially in public
rights-of-way without compensating the Plaintiff for their use of
the public rights of way. The Plaintiff is alleging that the
transmission of the Defendants' video content through the ISPs'
wirelines constitutes a trespass.
Judge Beatty finds that the complaint fails to allege facts
demonstrating that the Defendants caused a physical intrusion, or
that the purported physical intrusion interfered with the
Plaintiff's possession of the rights-of-way. The Plaintiff's
position, taken to its logical extension, means that every website,
online service, and user that provides any type of content on the
internet is liable for trespass unless they all obtained explicit
permission to do so from the Plaintiff and every other
municipality. This, of course, is an absurd result and underscores
the critical flaw in Plaintiff's trespass theory and why it cannot
stand.
For these reasons, the Plaintiff's claim for trespass in Count 3 is
dismissed pursuant to Rule 12(b)(6) for failure to state a claim.
The dismissal is with prejudice because any amendment would be
futile given the lack of authority in Illinois allowing claims for
intangible trespass that did not cause physical damage to the
land.
The Plaintiff concedes that its unjust enrichment claim is tied to
its trespass claim. Because the Court has determined that the
trespass claim must be dismissed, so too must the unjust enrichment
claim.
The complaint alleges that the Defendants violated East St. Louis
Municipal Code Section 82-19, which is titled "Unlawful resale of
cable service" and provides that "no person will resell cable
communication signals or service within the city without, prior to
such sale, having obtained written consent and approval of both the
operating franchise company and the city. The Defendants once again
set forth an array of arguments as to why this claim must fail. The
Plaintiff completely failed to counter the Defendants' argument
that no right of action exists to remedy a code violation.
After reviewing the East St. Louis Municipal Code, Judge Beatty
agrees with the Defendants that Section 82-19 does not provide an
express right of action to remedy a violation. He also believes it
is not necessary to imply a right of action under Section 82-19
because, among other things, the Plaintiff's allegations are
insufficient to plausibly suggest that the Defendants even violated
the ordinance. Additionally, even if the Plaintiff had sufficiently
alleged that the Defendants violated Section 82-19, the fourth
factor for implying a right of action -- the need to provide an
adequate remedy for violations of the ordinance -- is not
satisfied. For these reasons, the Plaintiff's claim in Count 5 is
dismissed pursuant to Rule 12(b)(6) for failure to state a claim.
The dismissal is with prejudice because any amendment would be
futile given that the Code of Ordinances does not provide the
Plaintiff with a cause of action.
In light of the foregoing, Judge Beatty grants the Motions to
Dismiss and dismisses the Plaintiff's Amended Class Action
Complaint in its entirety with prejudice for the reasons he stated
in the body of his Order.
A full-text copy of the Court's Sept. 23, 2022 Memorandum & Order
is available at https://tinyurl.com/5f7zs6ee from Leagle.com.
NEW SOUTH WALES: Sydney Residents Sue for Construction Damages
--------------------------------------------------------------
Dentons.com covered the news that residents whose homes and
properties have been damaged by the construction of Sydney's
mammoth WestConnex motorway say they've had enough as they look to
back legal action against the $16 billion project.
Over 65,000 homes could be impacted by subsidence of land
associated with the construction of the project across Sydney from
Merrylands to Botany according to independent satellite analysis.
Owners of some of the 10,000 plus properties directly above or
aligned with the tunnels say they're facing demolishing their homes
due to structural damage.
A proposed class action will be led by the legal team that won a
landmark settlement from the Federal Government in 2020 for
PFAS-related chemical contamination of homes and land including at
Williamtown, north of Newcastle.
"As in Williamtown, communities across Sydney have been ignored,
palmed off, or simply told to go away when they raise genuine
concerns about damage and loss of property value," said Dentons
partner Ben Allen.
"And again, like Williamtown, despite residents speaking out in the
media and at parliamentary inquiries for many years, they continue
to face a coordinated wall of indifference - this time from those
involved in the WestConnex project. Community-led class actions are
now often the only way of tearing that wall down," said Mr. Allen.
The NSW State Government has said any complaints about WestConnex
property damage should be directed to the contractors building the
33km largely underground road. The contractors in turn are denying
there's a problem, forcing the residents to pay thousands in a
survey and legal costs to prove their individual claims.
"The time and cost of proving WestConnex damaged their homes are
placed on the residents' shoulders," said WestConnex Action Group
(WAG) spokesperson Rhea Liebmann. "They're told dry weather, wet
weather, cracked pipes, dripping taps, and not the massive toll
road built meters under or next to their house is responsible. Yet
contractors flatly refuse to provide any of their technical
documentation to anyone including the panel assessing the damage.
It's farcical and frustrated residents have had enough of these
delays and deny tactics."
Mr. Allen said Dentons, the world's largest law firm, along with
Omni Bridgeway, one of the world's largest litigation funders,
would be holding a virtual community meeting on September 27th to
hear from residents and set out potential next steps.
Residents who would like to attend the virtual town hall meeting on
the evening of Tuesday, 27 September 2022 can register their
interest to receive the link to the meeting via Omni Bridgeway's
webpage.
"The legal team at Dentons have spent a significant amount of time
looking into both property damage and diminution of value for
properties associated with WestConnex," said Mr. Allen. "We take a
cautious and considered approach but every month we're uncovering
more issues of serious concern. We also know that some community
members feel isolated, helpless, or afraid to speak up. The reality
is there is a window in which a class action can be launched in
Australia, and many will risk losing potential compensation if they
later decide to take legal action for worsening damage," he said.
[GN]
NEW YORK STATE POLICE: Whyte Sues Over Pregnancy Discrimination
---------------------------------------------------------------
Schashuna D. Whyte, on behalf of themselves and a class of
similarly situated individuals v. NEW YORK STATE POLICE; ELIOT
LAURENCE SPITZER as Former Governor; DAVID ALEXANDER PA PERSON as
Former Governor; ANDREW MARK CUOMO as Former Governor; KATHLEEN
HOCHUL as Governor; JOHN DOES 1-10 as Former Directors — New York
State Governor's Office of Employee Relations; MICHAEL N. VOLFORTE
as Director — New York State Governor's Office of Employee
Relations; HARRY J. CORBETT, JOSEPH A. D'AMIRCO, GEORGE P. BEACH,
II, as Former Superintendents — New York State Police; KEITH M.
CORLETT as Former Acting/Superintendent — New York State Police;
KEVIN P. BRUEN as Superintendent — New York State Police; ROBERT
A. WILLIS as Former Commander — Troop — NYC; PAUL E. HOGAN as
Former Commander — Troop - NYC; DOUGLAS A. LARKIN as Commander
— Troop — NYC and MICHAEL A. RAMIREZ as Senior Investigator —
Human Resources, Southern Region each sued in their individual
capacities as employees of the New York State Police, Case No.
1:22-cv-05633 (E.D.N.Y., Sept. 21, 2022), is brought allege that
she and the other Rule 23 Class Members are each the victim of
unlawful adverse employment decisions within the NYSP because they
became pregnant during their employment in violation of the Title
VII of the Civil Rights Act of 1964, as amended by the Pregnancy
Discrimination Act of 1978.
The Plaintiff claims as a nursing mother appointed to the NYSP she
and other similarly situated female employees who are nursing
mothers have to express milk in a female bathroom, have to pump in
the female locker room, have to pump in department vehicles, have
to pump in other department facilities, other locations, or cease
to pump. The Plaintiff claims that the Defendant and its' agents
have engaged in a pattern, practice and policy of failing and
refusing to provide nursing mothers with reasonable break times and
a proper location to express milk, says the complaint.
The Plaintiff is a nursing mother employed with the Defendant.
NEW YORK STATE POLICE is the employer for the purposes of this
litigation, part of the Executive Branch and is engaged in the
practice of law enforcement activities throughout the state and
other related locations.[BN]
The Plaintiff is represented by:
Eric Sanders, Esq.
THE SANDERS FIRM, P.C.
30 Wall Street, 8th Floor
New York, NY 10005
Phone: (212) 652-2782
Facsimile: (212) 652-2783
NEW YORK, NY: Court Grants Chalmer Suit Class Certification Bid
---------------------------------------------------------------
In the class action lawsuit captioned as DARRYL CHALMERS, DARREN
CONNORS, GLENN MENDEZ, JAMES NOVA, FATIMA Q. ROSEMOND, and AFSCME
DISTRICT COUNCIL 37 LOCAL 2507, v. CITY OF NEW YORK, Case No.
1:20-cv-03389-AT (S.D.N.Y.), the Hon. Judge Analisa Torres entered
an order that:
-- The City's motion to preclude G&S's testimony is denied.
-- The Plaintiffs' motion to preclude Dr. Erath's testimony is
granted in part and denied in part.
-- The Plaintiffs' motion for certification of a class is
granted.
-- The Plaintiffs' motion for certification of a subclass is
granted.
-- The Plaintiffs' motion to appoint class counsel is granted.
-- The Clerk of Court is directed to terminate the motions at
ECF Nos. 61 and 80.
The Plaintiffs Darryl Chalmers, Darren Connors, Glenn Mendez, James
Nova, and Fatima Q. Rosemond, fire protection inspectors and
associate fire protection inspectors employed by the Fire
Department of the City of New York, and their representative union,
AFSCME District Council 37 Local 2507, bring this putative class
action against the Defendant alleging employment
discrimination on the basis of race in violation of 42 U.S.C.
section 1981 and 1983, Title VII of the Civil Rights Act, and the
New York City Human Rights Law.
A copy of the Court's order dated Sept. 19, 2022 is available from
PacerMonitor.com at https://bit.ly/3UV6tx5 at no extra charge.[CC]
NSH PORT WASHINGTON: Shadwick Sues Over Failure to Pay Proper Wages
-------------------------------------------------------------------
Chiquita Shadwick, individually and on behalf of all others
similarly situated v. NSH PORT WASHINGTON, LLC, Case No.
2:22-cv-01120-JPS (E.D. Wis., Sept. 26, 2022), is brought against
the Defendant for violations of the Fair Labor Standards Act and
the Wisconsin Wage Payment Law as a result of the Defendant's
policy and practice of failing to pay proper wages.
The Plaintiff regularly worked over forty hours in a week. The
Defendant did not include the attendance bonuses in the Plaintiff's
and other Hourly Employees' regular rate when calculating their
overtime pay. In weeks in which the Plaintiff and other Hourly
Employees performed work related to earning an attendance bonus and
worked hours over 40, the Defendant did not pay the Plaintiff and
other Hourly Employees 1.5x their regular hourly rate for hours
worked over 40 in that week. The Plaintiff and other Hourly
Employees are entitled to 1.5x their regular hourly rate for hours
worked over 40 each week. The Defendant knew or should have known
that the Plaintiff and other Hourly Employees worked hours over
forty in at least some weeks, says the complaint.
The Plaintiff was employed by the Defendant as a Nurse from June of
2019 until August of 2022.
The Defendant is a domestic limited liability company.[BN]
The Plaintiff is represented by:
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Parkway, Suite 510
Little Rock, AK 72211
Phone: (501) 221-0088
Facsimile: (888) 787-2040
Email: josh@sanfordlawfirm.com
NV5 INC: Richardson Sues Over Failure to Pay Overtime Compensation
------------------------------------------------------------------
Thomas Richardson, on behalf of himself and all others similarly
situated v. NV5, INC., a Delaware corporation, Case No.
1:22-cv-02454-SKC (D. Colo., Sept. 21, 2022), is brought alleging
that the Defendant violated the Fair Labor Standards Act of 1938
and the Colorado Overtime and Minimum Pay Standards Order by
failing to pay Inspectors required overtime compensation.
Inspectors routinely work more than 40 hours per workweek. The
Plaintiff often worked over 50 hours per workweek. During the week
ending February 20, 2021, the Plaintiff worked 53.5 hours. During
the week ending on September 25, 2021, the Plaintiff worked 55
hours. During the week ending May 14, 2022, the Plaintiff worked
50.5 hours. The Defendant has failed to pay Inspectors, including
the Plaintiff, for all hours worked and/or to properly calculate
Inspectors' proper rates of overtime pay. The Defendant has in
place inadequate timekeeping methods for tracking and recording the
time Inspectors spend working. The Defendant has a uniform policy
and practice to not pay Inspectors for all hours worked in excess
of 40 per workweek and/or 12 per workday. The Defendant would not
consistently pay Inspectors at the proper overtime rate (not less
than one-and-one-half their regular rate of pay), says the
complaint.
The Plaintiff has been employed as an Inspector--specifically a
"Construction Inspector"--by the Defendant in Colorado Springs,
Colorado.
The Defendant provides engineering and consulting services to
public and private entities throughout the United States and around
the world.[BN]
The Plaintiff is represented by:
Michael D. Kuhn
Andrew E. Swan
LEVENTHAL | LEWIS KUHN TAYLOR SWAN PC
620 North Tejon Street, Suite 101
Colorado Springs, CO 80903
Phone: (719) 694-3000
Facsimile: (866) 515-8628
Email: mkuhn@ll.law
aswan@ll.law
OGDEN CITY: Wheelwright Appeals Case Dismissal to 10th Cir.
-----------------------------------------------------------
LEW WHEELWRIGHT, et al. are taking an appeal from a court order
dismissing the lawsuit entitled Ogden Regional Airport Association,
Inc., et al., Plaintiffs, v. Ogden City Airport, et al.,
Defendants, Case No. 1:21-CV-00075-DBB, in the U.S. District Court
for the District of Utah.
The case involves a dispute between dozens of Plaintiffs and the
Defendants regarding hangars the Plaintiffs have built and
maintained on land located at and leased from Ogden City Airport.
The Plaintiffs claim that the Defendants are planning to cease
renewing Plaintiffs' ground leases, contrary to the Defendants'
historical course of conduct, and rely on the abandonment
provisions in the parties' lease agreements to seize ownership of
and use Plaintiffs' hangars to improve the profitability of Ogden
City Airport. The Plaintiffs argue that these actions violate their
equitable and constitutional property rights in their hangars.
On March 11, 2022, the Defendants have moved to dismiss the
Plaintiffs' amended class action complaint for lack of subject
matter jurisdiction and failure to state a claim upon which relief
can be granted under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6), respectively.
On July 11, 2022, the Court granted the Defendants' motion to
dismiss through an Order entered by Judge David Barlow. The
Plaintiffs' federal claims were dismissed with prejudice for
failure to state a claim. All remaining claims were dismissed
without prejudice for lack of jurisdiction pursuant to 28 U.S. Code
Section 1367(c)(3).
The appellate case is captioned as Wheelwright, et al. v. Ogden
City Airport, et al., Case No. 22-4083, in the United States Court
of Appeals for the Tenth Circuit, filed on September 13, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellants' docketing statement, transcript order form and
notice of appearance were due September 28, 2022; and
-- Appellees' notice of appearance were due September 28, 2022.
[BN]
Plaintiffs-Appellants LEW WHEELWRIGHT, et al., individually and on
behalf of all others similarly situated, are represented by:
Richard A. Bednar, Esq.
Douglas M. Durbano, Esq.
John E. Keiter, Jr., Esq.
DURBANO LAW FIRM
476 W. Heritage Park Blvd., Suite 105
Layton, UT 84041-0000
Telephone: (801) 776-4111
Defendants-Appellees OGDEN CITY AIRPORT, et al., are represented
by:
Kenneth D. Brown, Esq.
SNELL & WILMER
15 West South Temple, Suite 1200
Salt Lake City, UT 84101-1531
Telephone: (801) 257-1900
- and -
Stephen F. Noel, Esq.
SMITH KNOWLES PC
4723 Harrison Blvd., Suite 200
Ogden, UT 84403-0000
Telephone: (801) 476-0303
OLO INC: Pompano Beach Sues Over Decline in Shares Market Value
---------------------------------------------------------------
Pompano Beach Police and Firefighters' Retirement System,
individually and on behalf of all others similarly situated v. OLO
INC., NOAH GLASS, and PETER J. BENEVIDES, Case No. 1:22-cv-08228
(S.D.N.Y., Sept. 26, 2022), is brought on behalf of all persons and
entities that purchased shares of Olo's Class A common stock
between August 11, 2021 and August 11, 2022, inclusive (the "Class
Period"), against Olo and certain of its officers seeking to pursue
remedies under the Securities Exchange Act of 1934 as a result of
the precipitous decline in the market value of the Company's shares
due to the Defendant's wrongful acts and omissions.
On February 12, 2020, Olo announced a partnership with Subway
restaurants to enable Subway's more than 20,000 U.S.-based
restaurants to handle digital orders from third-party
"marketplaces" such as Uber Eats or DoorDash. Olo, short for
"online ordering," then went public via an initial public offering
("IPO") in March 2021 as online ordering from restaurants and
home-delivery services were enjoying unprecedented popularity due
to the COVID-19 pandemic. In its IPO, Olo offered its shares for
sale at $25 per share and opened trading at $32 per share.
Throughout the Class Period, the Company highlighted its "Active
Locations" as a "Key Business Metric" that "demonstrates the growth
and scale of our overall business and reflects our ability to
attract, engage, and monetize our customers and drive revenue."
After the close of markets on August 10, 2021, Olo reported that it
ended the second quarter of 2021 with approximately 74,000 active
locations, which represented a 30% increase over the same period in
the prior year. The Company's reported active locations included
approximately 15,000 Subway locations, which eventually represented
approximately 20% of the Company's reported active locations. As
Olo reported increasing active locations, its stock price soared to
trade above $45 per share.
With Olo stock price trading at inflated levels, on November 4,
2021, the Company completed a pivotal acquisition of competing
restaurant software company Wisely, Inc. for $187 million, paid for
in large part with $110 million in Olo stock. Unbeknownst to
investors, throughout the Class Period, the Defendants misled
investors as to the Company's success by citing active locations
figures that included Subway locations that would imminently cease
using the Company's services and by failing to disclose that Subway
would be ending its relationship with Olo.
The true state of Olo's relationship with Subway was revealed after
the markets closed on August 11, 2022. That day, the Company
reported its results for the second quarter of 2022 and reduced its
guidance for full-year 2022. Olo also revealed that 2,500 Subway
locations had begun to directly integrate with third-party
marketplaces and that the remaining 15,000 Subway locations would
be removed from the Company's active locations count in the fourth
quarter of 2022 and the first quarter of 2023. In a stunning
admission, the Company acknowledged that the previously undisclosed
Subway exodus had been known internally throughout the Class
Period. Indeed, Chief Financial Officer ("CFO") Peter J. Benevides
instructed analysts that "when we entered the year, there was an
indication that Subway may plan to directly integrate with
marketplaces." In fact, CFO Benevides admitted Olo took the
undisclosed pending Subway departure into account when providing
guidance for the year.
In response to these revelations, the price of Olo stock plummeted
approximately 36%, from a closing price of $12.99 per share on
August 11, 2022, to a closing price of $8.26 per share on August
12, 2022. More than $480 million of shareholder value was erased.
As a result of the Defendant's wrongful acts and omissions and the
precipitous decline in the market value of the Company's shares,
Plaintiff and putative Class members have suffered significant
losses and damages. Plaintiff and putative Class members seek
damages for redress, reasonable attorneys' fees, injunctive relief,
and all other relief this Court deems just and proper, says the
complaint.
The Plaintiff purchased shares of Olo's Class A common stock at
artificially inflated prices during the Class Period.
Olo provides software to restaurants to assist with online ordering
and food-delivery coordination.[BN]
The Plaintiff is represented by:
Steven B. Singer, Esq.
Rachel Avan, Esq.
SAXENA WHITE P.A.
10 Bank Street, 8th Floor
White Plains, NY 10606
Phone: (914) 437-8551
Facsimile: (888) 631-3611
Email: ssinger@saxenawhite.com
ravan@saxenawhite.com
- and -
Maya Saxena, Esq.
Lester R. Hooker, Esq.
SAXENA WHITE P.A.
7777 Glades Road, Suite 300
Boca Raton, FL 33434
Phone: (561) 394-3399
Email: msaxena@saxenawhite.com
lhooker@saxenawhite.com
ONETOUCHPOINT INC: Saffo Sues Over Failure to Protect PII and PHI
-----------------------------------------------------------------
Cynthia Saffo and Tina Ingram, on behalf of herself and her minor
child, H.I., as individuals and on behalf of all others similarly
situated v. OneTouchPoint, Inc., Case No. 2:22-cv-00997-LA (E.D.
Wis., Aug. 29, 2022), is brought against the Defendant as a result
of the Plaintiffs' PII and PHI being compromised due to the
Defendant's negligent and/or careless acts and omissions and its
failure to adequately protect the PII and PHI.
On July 27, 2022, OTP began notifying consumers and state Attorneys
General about a data breach that it discovered on or about April
28, 2022 (the "Data Breach"). Hackers obtained information from OTP
including the personally identifiable information ("PII") of
thousands of individuals, including, but not limited to, their
names, addresses, ages, genders, member IDs, and health information
that requires protection under HIPAA ("PHI") (collectively,
"Private Information").
Not only did hackers intentionally and purposefully steal the PII
and PHI of the Plaintiffs from Defendant, but, upon information and
belief, these criminals have already used the Private Information
to attempt to steal certain of the Plaintiffs' identities. Hackers
accessed and then either used or offered for sale the unencrypted,
unredacted, stolen PII and PHI to criminals. This stolen PII and
PHI has great value to hackers. Because of Defendant's Data Breach,
the Plaintiffs' PII and PHI is still available and may be for sale
on the dark web for criminals to access and abuse for years into
the future. Impacted consumers now face a lifetime risk of identity
theft.
The Plaintiffs bring this action on behalf of all individuals
(consumers) whose PII and PHI was compromised as a result of the
Defendant's failure to: adequately protect consumers' PII and PHI,
warn affected consumers of its inadequate information security
practices, and effectively monitor its websites and platforms for
security vulnerabilities and incidents. Defendant's conduct amounts
to negligence and violates federal and state statutes, says the
complaint.
The Plaintiffs received Notice of Data Breach
Letters from the Defendant.
OneTouchPoint, Inc. (OTP) is a third-party vendor providing health
insurance carriers and healthcare providers mailing and printing
services.[BN]
The Plaintiffs are represented by:
Lisa A. White, Esq.
Gary E. Mason, Esq.
Danielle L. Perry, Esq.
MASON LLP
5101 Wisconsin Ave., Suite 305
Washington, DC 20016
Phone: 202-429-2290
Fax: 202-429-2294
Email: lwhite@masonllp.com
gmason@masonllp.com
dperry@masonllp.com
OOMA INC: Awaits Court's Class Cert. Ruling in Zanin Trademark Suit
-------------------------------------------------------------------
Ooma Inc. disclosed in its FORM 10-Q filing for the quarterly
period ended July 3, 2022, filed with the Securities and Exchange
Commission on September 8, 2022, that the Company is awaiting the
Canadian Court's ruling on class action certification issues in the
complaint brought by John Zanin.
On February 3, 2021, plaintiff Fiona Chiu filed a class action
complaint against the Company and Ooma Canada Inc. in the Federal
Court of Canada, alleging violations of Canada's Trademarks Act and
Competition Act. The complaint seeks monetary and other damages
and/or injunctive relief enjoining the Company to cease describing
and marketing its Basic Home Phone using the word "free" or
otherwise representing that it is free.
On November 9, 2021, the Federal Court of Canada removed Ms. Chiu
and substituted John Zanin as the new plaintiff in the proceeding.
In connection with the substitution of Mr. Zanin as the new
plaintiff, the Federal Court of Canada deemed the proceeding as
having commenced on November 8, 2021, instead of February 3, 2021.
In January 2022, the Federal Court of Canada heard arguments from
counsel representing each of the Company and Mr. Zanin regarding
jurisdiction and class action certification issues, and the parties
are awaiting the Court to issue its ruling.
The Company intends to continue to defend itself vigorously against
this complaint. Based on the Company's current knowledge, the
Company has determined that the amount of any reasonably possible
loss resulting from the Canadian Litigation is not estimable.
Ooma, Inc. is a Sunnyvale, California-based company that provides
software-as-a-service and unified-communications-as-a-service
platforms for businesses and consumers.
OPHTHOTECH CORP: $9M in Attys.' Fees & Costs Awarded in Micholle
----------------------------------------------------------------
In the case, FRANK MICHOLLE, Individually and on Behalf of All
Others Similarly Situated, Plaintiff v. OPHTHOTECH CORPORATION,
DAVID R. GUYER and SAMIR PATEL, Defendants, Case No.
1:17-cv-00210-VSB-GWG (S.D.N.Y.), Judge Vernon S. Broderick of the
U.S. District Court for the Southern District of New York grants
the motion of the Lead Counsel for an award of attorneys' fees and
expenses and an award to the Lead Plaintiff.
The matter came before the Court on Sept. 8, 2022, on the Lead
Counsel's Fee Motion. Having considered all papers filed and
proceedings conducted therein, and having found the Settlement of
the Litigation to be fair, reasonable and adequate, Judge Broderick
awards the Lead Counsel attorneys' fees of 30% of the $29 million
Settlement Amount ($8.7 million), plus expenses in the amount of
$265,231.29, together with the interest earned on both amounts for
the same time period and at the same rate as that earned on the
Settlement Fund until paid.
The awarded attorneys' fees and expenses and interest earned
thereon, will be paid to the Lead Counsel immediately upon
execution of the Final Judgment and the Order and subject to the
terms, conditions, and obligations of the Stipulation, and in
particular, paragraph 6.2 thereof.
Pursuant to 15 U.S.C. Section 78u-4(a)(4), Judge Broderick awards
$5,022.80 to Lead Plaintiff Sheet Metal Workers' Pension Plan of
Southern California, Arizona and Nevada for the time it spent
directly related to its representation of the Class.
Any appeal or any challenge affecting the Court's approval
regarding the Fee Motion will in no way disturb or affect the
finality of the Judgment entered with respect to the Settlement.
In the event that the Settlement is terminated or does not become
Final or the Effective Date does not occur in accordance with the
terms of the Stipulation, the Order will be rendered null and void
to the extent provided in the Stipulation and will be vacated in
accordance with the Stipulation.
A full-text copy of the Court's Sept. 16, 2022 Order is available
at https://tinyurl.com/22dxrvt3 from Leagle.com.
OPPENHEIMER & CO: 6694 Dawson Blvd Suit Dismissed w/out Prejudice
-----------------------------------------------------------------
Oppenheimer & Co. Inc. disclosed in its Form 8-K filing filed with
the Securities & Exchange Commission on September 7, 2022, that the
U.S. District Court for the Northern District of Georgia dismissed
the class action entitled 6694 Dawson Blvd, LLC, Individually and
on Behalf of a Class of Similarly Situated Persons v. Oppenheimer &
Co. Inc., James Wallace Woods, Michael J. Mooney, Britt Wright,
William V. Conn, Jr., Conn & Co. Tax Practice, LLC, Conn & Company
Consulting , LLC and Kathleen Lloyd.
On August 31, 2021, a complaint in a class action entitled 6694
Dawson Blvd, LLC, Individually and on Behalf of a Class of
Similarly Situated Persons v. Oppenheimer & Co. Inc., James Wallace
Woods, Michael J. Mooney, Britt Wright, William V. Conn, Jr., Conn
& Co. Tax Practice, LLC, Conn & Company Consulting, LLC and
Kathleen Lloyd, was filed in the U.S. District Court for the
Northern District of Georgia (the "Georgia Court").
Plaintiff purported to represent a class of investors in Horizon
Private Equity, III, LLC ("Horizon"). Horizon was alleged to be a
fraudulent scheme and plaintiff sought unspecified damages sounding
in violations of the Georgia RICO statute, breach of fiduciary
duty, procurement of breach of fiduciary duty, negligent
misrepresentation, aiding and abetting fraud, unjust enrichment,
punitive damages and attorneys' fees. Plaintiff did not allege
Oppenheimer received any of the funds invested in Horizon, but
rather that Oppenheimer's purported failure to properly supervise
its employees allowed the alleged scheme to occur and continue.
On November 22, 2021, Oppenheimer filed a motion to dismiss the
complaint on a number of grounds.
The motion to dismiss was fully briefed on January 17, 2022, and
the Georgia Court heard oral argument on the motion on June 21,
2022.
On August 17, 2022, the Court dismissed the class action complaint
without prejudice.
Oppenheimer Holdings is an investment bank and full-service
investment firm offering investment banking, financial advisory
services, capital markets services, asset management, wealth
management, and related products and services worldwide.[BN]
OZ MANAGEMENT: Certification of Rule 23 Class Sought
----------------------------------------------------
In the class action lawsuit captioned as DEBORAH WALLIS and TIANNA
NEAL, individually and on behalf of all others similarly situated,
v. OZ MANAGEMENT GROUP, INC., d/b/a CUSTOMER CONTACT SERVICE, INC.,
and DOROTHY ARMSTRONG, Case No. 3:21-cv-00290-jdp (W.D. Wisc.), the
Parties agreed to stipulate to certification of the Rule 23 Class
defined below, for settlement purposes only.
-- The Parties stipulate to and move the court to certify
Class of the following individuals pursuant to Federal
Rule of Civil Procedure 23:
"All customer service agents employed by defendant Oz
Management Group, Inc. d/b/a Customer Contact Service,
Inc. from September 1, 2020 through March 31, 2022 in
Wisconsin."
-- The Parties stipulate and agree that the requisites for
establishing Rule 23 Class certification have been met and
are met with respect to the Rule 23 Class.
A copy of the Parties' motion dated Sept. 19, 2022 is available
from PacerMonitor.com at https://bit.ly/3fnllnv at no extra
charge.[CC]
The Plaintiffs are represented by:
Larry A. Johnson, Esq.
Summer Murshid, Esq.
Timothy Maynard, Esq.
Hawks Quindel, S.C.
5150 N. Port Washington Rd., Suite 243
Milwaukee, WI 53217
Telephone: (414) 271-8650
Facsimile: (414) 207-6079
E-mail: ljohnson@hq-law.com
smurshid@hq-law.com
maynard@hq-law.com
The Defendant is represented by
Patrick F. Moran, Esq
GORDON REES SCULLY MANSUKHANI, LLP
One North Franklin Street, Suite 800
Chicago, IL
Telephone: (312) 565-1400
Facsimile: (312) 565-6511
E-mail: pmoran@grsm.com
PELOTON INTERACTIVE: Bid to Dismiss Securities Litigation Pending
-----------------------------------------------------------------
Peloton Interactive Inc. disclosed in its Form 10-K filing for the
fiscal year ended June 30, 2022 filed with the Securities &
Exchange Commission on September 6, 2022, that a motion to dismiss
the amended consolidated complaint captioned In re Peloton
Interactive, Inc. Securities Litigation is pending in the United
States District Court for the Eastern District of New York.
On April 29, 2021, Ashley Wilson filed a putative securities class
action lawsuit against the Company and certain of its officers,
captioned Wilson v. Peloton Interactive, Inc., et al., Case No.
1:21-cv-02369-CBA-PK, in the United States District Court for the
Eastern District of New York (the "Wilson Action"), and on May 24,
2021, Leigh Drori filed a related putative securities class action
lawsuit, captioned Drori v. Peloton Interactive, Inc., et al., Case
No. 1:21-cv-02925-CBA-PK, also in the United States District Court
for the Eastern District of New York (the "Drori Action").
On November 16, 2021, the district judge consolidated the Wilson
and Drori Actions under the caption In re Peloton Interactive, Inc.
Securities Litigation, Master File No. 21-cv-02369-CBA-PK, and
appointed Richard Neswick as lead plaintiff.
On January 21, 2022, lead plaintiff filed an amended consolidated
complaint in the action purportedly on behalf of a class consisting
of those individuals who purchased or otherwise acquired the
Company's common stock between September 11, 2020 and May 5, 2021.
Lead plaintiff alleges that the Company and certain of its officers
made false or misleading statements in violation of Sections 10(b)
and 20(a) of the Exchange Act of 1934 ("Exchange Act") regarding
the Company's Tread and Tread+ products and the safety of those
products.
Defendants served their motion to dismiss the amended consolidated
complaint on March 7, 2022, and briefing was complete on April 26,
2022.
Peloton Interactive, Inc. is New York-based American exercise
equipment and media company. [BN]
PELOTON INTERACTIVE: Files Bid to Dismiss Hialeah/Deulina Action
----------------------------------------------------------------
Peloton Interactive Inc. disclosed in its Form 10-K filing for the
fiscal year ended June 30, 2022 filed with the Securities &
Exchange Commission on September 6, 2022, that the Company and
certain of its officers filed a motion to dismiss the consolidated
Hialeah and Deulina putative securities class action on August 22,
2022.
On November 18, 2021, the City of Hialeah Employees' Retirement
System filed a putative securities class action lawsuit against the
Company and certain of its officers in the United States District
Court for the Southern District of New York, captioned City of
Hialeah Employees' Retirement System v. Peloton Interactive, Inc.,
Case No. 21-cv-09582-ALC (the "Hialeah Action"), and on December 2,
2021, Anastasia Deulina filed a related putative securities class
action against the same defendants also in the United States
District Court for the Southern District of New York captioned
Deulina v. Peloton Interactive, Inc., Case No. 21-cv-10266-ALC (the
"Deulina Action").
On May 5, 2022, the Court consolidated the Hialeah and Deulina
Actions and appointed Robeco Capital Growth Funds SICAV - Robeco
Global Consumer Trends as lead plaintiff.
Lead plaintiff filed its amended complaint on June 25, 2022,
purportedly on behalf of a class of individuals who purchased or
otherwise acquired the Company's common stock between February 5,
2021 and November 4, 2021, alleging that the Company and certain of
its officers made false or misleading statements about demand for
the Company's products and engaged in improper trading in violation
of Sections 10(b), 20(a), and 20A of the Exchange Act.
Defendants' filed their motion to dismiss on August 22, 2022.
Peloton Interactive, Inc. is a New York-based American exercise
equipment and media company. [BN]
PLAINFIELD PIZZA: Schneider Files FLSA Suit in N.D. Illinois
------------------------------------------------------------
A class action lawsuit has been filed against Plainfield Pizza,
Inc., et al. The case is styled as Kyle Schneider, individually and
on behalf of all others similarly situated v. Plainfield Pizza,
Inc., Rafael Moreno, Case No. 1:22-cv-04672 (N.D. Ill., Aug. 31,
2022).
The lawsuit is brought over alleged violation of the Fair Labor
Standards Act.
Plainfield Pizza, Inc. is a pizza restaurant in Plainfield,
Illinois.[BN]
The Plaintiff is represented by:
Joshua Jon Sanford, Esq.
Colby Qualls, Esq.
SANFORD LAW FIRM, PLLC
10800 Financial Centre Parkway
Little Rock, AR 72211
Phone: (501) 221-0088
Fax: (888) 787-2040
Email: josh@sanfordlawfirm.com
colby@sanfordlawfirm.com
PNC BANK: Lyons Appeals Dismissal Ruling in Consumer Credit Suit
----------------------------------------------------------------
Plaintiff WILLIAM T. LYONS filed an appeal from the District
Court's Memorandum Opinion and Order dated August 2, 2022, and
Order dated August 18, 2022, entered in the lawsuit entitled
WILLIAM T. LYONS JR., Plaintiff v. PNC BANK, N.A., Defendant, Case
No. 1:20-cv-02234-SAG, in the U.S. District Court for the District
of Maryland at Baltimore.
Plaintiff Lyons filed suit against PNC Bank, N.A., alleging
violations of the Truth in Lending Act and the Real Estate
Settlement Procedures Act. The Plaintiff obtained a Home Equity
Line of Credit from National City Bank on Feb. 4, 2005. At the
closing, the Plaintiff and National City signed an Equity Reserve
Agreement, which did not contain an arbitration clause or a class
action waiver. The HELOC set a 10-year loan term and allowed the
Plaintiff to take draws up to a maximum amount of $149,650.
As reported in the Class Action Reporter on Feb. 28, 2022, the U.S.
Court of Appeals for the Fourth Circuit affirmed in part and
reversed in part the district court's order granting in part and
denying in part PNC's motion to compel arbitration.
Following an interlocutory appeal of a motion to compel
arbitration, PNC has filed a motion for judgment on the pleadings
on May 6, 2022.
On August 2, 2022, Judge Stephanie A. Gallagher entered a
Memorandum Opinion and Order granting PNC's motion for judgment on
the pleadings; dismissing the Complaint without prejudice.
On August 18, 2022, Judge Gallagher signed a ruling that the order
of dismissal without prejudice is converted to a dismissal with
prejudice; directing the Clerk to close this case.
The appellate case is captioned as William Lyons v. PNC Bank, N.A.,
Case No. 22-1943, in the U.S. Court of Appeals for the Fourth
Circuit, filed on Sept. 9, 2022.[BN]
Plaintiff-Appellant WILLIAM T. LYONS, individually and on behalf of
others similarly situated, is represented by:
Scott C. Borison, Esq.
BORISON FIRM LLC
1900 South Norfolk Street
San Mateo, CA 94403
Telephone: (301) 620-1016
- and -
Phillip R. Robinson, Esq.
CONSUMER LAW CENTER LLC
10125 Colesville Road
Silver Spring, MD 20901
Telephone: (301) 448-1304
Defendant-Appellee PNC BANK, N.A. is represented by:
Fredrick S. Levin, Esq.
BUCKLEY LLP
100 Wilshire Boulevard
Santa Monica, CA 90401
Telephone: (310) 424-3900
- and -
Daniel J. Tobin, Esq.
BALLARD SPAHR, LLP
1909 K Street, NW
Washington, DC 20006-1157
Telephone: (202) 661-2256
PROFESSIONAL FINANCE: Baumann Files FDCPA Suit in D. Colorado
-------------------------------------------------------------
A class action lawsuit has been filed against Professional Finance
Company, Inc. The case is styled as Macushla Baumann, individually
and on behalf of all others similarly situated v. Professional
Finance Company, Inc., Case No. 1:22-cv-02453-SKC (D. Colo., Sept.
21, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Professional Finance Company, Inc. (PFC) -- https://www.pfcusa.com/
-- is one of the nation's leading accounts receivable management
agencies located in Northern Colorado.[BN]
The Plaintiff is represented by:
Yaakov Saks, Esq.
STEIN SAKS, PLLC
One University Plaza, Suite 620
Hackensack, NJ 07601-2726
Phone: (201) 282-6500
Email: ysaks@steinsakslegal.com
PRUDENT FIDUCIARY: Third Scheduling Order Entered in Ahrendsen
--------------------------------------------------------------
In the class action lawsuit captioned as SHARI AHRENDSEN, et. al,
v. PRUDENT FIDUCIARY SERVICES, LLC, et al., Case No.
2:21-cv-02157-HB (E.D. Pa.), the Hon. Judge Harvey Bartle III
entered a third scheduling order as follows:
1. The Second Scheduling Order dated July 13, 2022 is
vacated.
2. All class certification and merit discovery shall
proceed forthwith and continue in such a manner as will
assure that all requests for, and responses to, discovery
will be served, noticed, and completed by March 2, 2023.
3. The Plaintiffs shall file any motion for class
certification on or before November 4, 2022.
4. The Defendants shall file any briefs in opposition to the
plaintiffs' motion for class certification on or before
December 5, 2022.
Prudent Fiduciary provides professional Independent Fiduciary,
ERISA Consulting, and Expert Witness services.
A copy of the Court's order dated Sept. 21, 2022 is available from
PacerMonitor.com at https://bit.ly/3y1xG77 at no extra charge.[CC]
QUANTA SERVICES: Laliberte Sues Over Breach of Fiduciary Duties
---------------------------------------------------------------
Mary Laliberte and Marie Mcknight, individually and as
representatives of a class of similarly situated persons, on behalf
of the QUANTA SERVICES, INC. 401(K) SAVINGS PLAN v. QUANTA
SERVICES, INC.; THE BOARD OF TRUSTEES OF QUANTA SERVICES, INC.; THE
QUANTA SERVICES, INC. 401(K) SAVINGS PLAN COMMITTEE; and DOES No.
1-20, Whose Names Are Currently Unknown, Case No. 4:22-cv-03290
(S.D. Tex., Sept. 26, 2022), is brought against the Defendants for
breach of their fiduciary duties under the Employee Retirement
Income Security Act ("ERISA"), and related breaches of applicable
law beginning six years prior to the date the Action is filed and
continuing to the date of judgment, or such earlier date that the
Court determines is appropriate and just ("Class Period").
As of December 31, 2020, the Plan had 16,317 participants with
account balances and assets totaling approximately $1.21 billion,
placing it in the top 0.1% of all defined contribution plans by
plan size. Defined contribution plans with substantial assets, like
the Plan, have significant bargaining power and the ability to
demand low-cost administrative and investment management services
within the market for administration of defined contribution plans
and the investment of defined contribution assets. The market for
defined contribution retirement plan services is well-established
and can be competitive when fiduciaries of defined contribution
retirement plans act in an informed and prudent fashion.
The Defendants maintain the Plan, and are responsible for
selecting, monitoring, and retaining the service provider(s) that
provide investment, recordkeeping, and other administrative
services. The Defendants are fiduciaries under ERISA, and, as such,
owe a series of duties to the Plan and its participants and
beneficiaries, including obligations to act for the exclusive
benefit of participants, ensure that the investment options offered
through the Plan are prudent and diverse, and ensure that Plan
expenses are fair and reasonable.
The Defendants have breached their fiduciary duties to the Plan.
The Defendants selected, retained, or otherwise ratified high-cost
and poorly performing investments instead of offering more prudent
alternative investments that were readily available at the time and
during the Class Period. Since the Defendants have discretion to
select the investments made available to participants, the
Defendants' breaches are the direct cause of the losses alleged
herein. To remedy these fiduciary breaches and other violations of
ERISA, the Plaintiffs bring this class action under the ERISA, to
recover and obtain all losses resulting from each breach of
fiduciary duty. Plaintiffs also seek such other equitable or
remedial relief for the Plan and the proposed class as the Court
may deem appropriate and just under the circumstances, says the
complaint.
The Plaintiff is a former employee of Quanta and former participant
in the Plan.
Quanta provides infrastructure services for the electric power,
underground utility, and communications industries.[BN]
The Plaintiff is represented by:
John S. "Jack" Edwards, Jr., Esq.
Thomas R. Ajamie, Esq.
AJAMIE LLP
Pennzoil Place - South Tower
711 Louisiana, Suite 2150
Houston, TX 77002
Phone: (713) 860-1600
Fax: (713) 860-1699
Email: jedwards@ajamie.com
tajamie@ajamie.com
- and -
James E. Miller, Esq.
Laurie Rubinow, Esq.
MILLER SHAH LLP
65 Main Street
Chester, CT 06412
Phone: (866) 540-5505
Facsimile: (866) 300-7367
Email: jemiller@millershah.com
lrubinow@millershah.com
- and -
James C. Shah, Esq.
Alec J. Berin, Esq.
MILLER SHAH LLP
1845 Walnut Street, Suite 806
Philadelphia, PA 19103
Phone: (866) 540-5505
Facsimile: (866) 300-7367
Email: jcshah@millershah.com
ajberin@millershah.com
- and -
Kolin C. Tang, Esq.
MILLER SHAH LLP
19712 MacArthur Blvd.
Irvine, CA 92612
Phone: (866) 540-5505
Facsimile: (866) 300-7367
Email: kctang@millershah.com
Mark K. Gyandoh, Esq.
Gabrielle P. Kelerchian, Esq.
CAPOZZI ADLER, P.C.
312 Old Lancaster Road
Merion Station, PA 19066
Phone: (610) 890-0200
Facsimile: (717) 233-4103
Email: markg@capozziadler.com
gabriellek@capozziadler.com
- and -
Donald R. Reavey, Esq.
CAPOZZI ADLER, P.C.
2933 North Front Street
Harrisburg, PA 17110
Phone: (717) 233-4101
Facsimile: (717) 233-4103
Email: donr@capozziadler.com
RAY KLEIN: Class Settlement in Russell Suit Gets Final Approval
---------------------------------------------------------------
In the case, NICHOLAS RUSSELL and MICHAEL MCKIBBEN, Plaintiffs v.
RAY KLEIN, INC., Defendant, Case No. 1:19-cv-00001-MC (D. Or.),
Judge Michael McShane of the U.S. District Court for the District
of Oregon, Medford Division, grants the Representative Plaintiffs'
Motion for Final Approval of the Parties' Class Action Settlement
Agreement.
Judge McShane has considered all papers filed and proceedings in
the matter and is fully informed regarding the facts surrounding
the Settlement. Based upon this information, he has determined to
approve the Settlement and Agreement as fair, reasonable and
adequate and to certify the Class for settlement purposes under
Fed. R. Civ. P. 23. He enters the Order and Final Judgment, which
constitutes a final adjudication on the merits of all claims of the
Settlement Class.
On Sept. 21, 2022, the Court granted preliminary approval of the
Settlement between the Representative Plaintiffs and the Defendant.
The Settlement resolves all of the Class' claims against Ray Klein,
and the "Released Entities" as set forth in the Agreement, in
exchange for Ray Klein's agreement to pay certain amounts to
eligible Class Members, the Representative Plaintiffs, and the
Class Counsel as set forth in the Agreement.
On the same day, the Court held a fairness hearing.
Judge McShane appoints Plaintiffs Nicholas Russel and Michael
McKibben as the Class Representatives; and Michael Fuller of
OlsenDaines, P.C., Kelly D. Jones of The Law Office of Kelly D.
Jones, and Matthew Sutton of the Law Office of Matthew Sutton as
the Class Counsel.
The following Class is certified for the purpose of this
Settlement: (a) All individual consumers with Oregon addresses, (b)
whose wages or accounts or property were garnished by Ray Klein (c)
between January 1, 2018 through and including Sept. 30, 2019, (d)
with respect to a debt incurred primarily for personal, family, or
household purposes, (e) from whom Ray Klein collected a purported
garnishment issuance fee.
Judge McShane grants final approval to the Settlement and Agreement
finds that it is fair, reasonable, and adequate, and in the best
interests of the Class as a whole. He has considered and overrules
any and all objections brought to the Court's attention, whether
properly filed or not.
Any Class Members that have timely requested to be excluded from
the Class and the Settlement are set forth in the attached Exhibit
A. Accordingly, the Order will not bind or affect Class Members
listed on Exhibit A (if any).
All funds remaining in the Settlement Fund following payments of
all amounts described in the Agreement (including, but not limited
to, amounts remaining from uncashed or returned class member
settlement checks) after 90 days following the date of issuance of
the Settlement Checks (and if necessary and administratively
feasible, a second pro rata distribution of the remainder of the
Settlement Fund) will constitute the Cy Pres Fund. The Settlement
Administrator will distribute the entire Cy Pres Fund as a cy pres
award as follows: 50% to Oregon Consumer Justice and 50% to the
Oregon Consumer League, non-profit organizations focused on
consumer protection issues. No amount of the Settlement Fund will
revert or be returned to Defendant or their insurer(s).
Neither the Final Judgment nor the Agreement is an admission or
concession by Defendant of the validity of any claims or of any
liability or wrongdoing or of any violation of law.
The Settlement and entry of the Order and Final Judgment operates
as a settlement in full and a release as to the claims of the
Representative Plaintiffs and each Class Member who has not timely
excluded themselves, as defined by and consistent with the terms of
the Agreement.
Ray Klein and the other Released Parties as defined in the
Agreement have no further or other liability or obligation to the
Representative Plaintiffs or any Class Member who has not timely
excluded themselves, except as expressly provided for in the
Agreement or in this Order.
The Settlement Administrator, Settlement Services, Inc. (SSI) has
sufficiently completed the delivery of class Notice, including by
mailing the Postcard Notice, to the Class Members according to the
terms of the Agreement and the Court's prior order(s). Accordingly,
Judge McShane determines that all Class Members, except those who
timely and properly excluded themselves from the Class (if any), as
identified in Exhibit A, are bound by the Order and Final
Judgment.
Within 10 days after the filing of the Agreement in the Court, the
Defendant (or SSI on behalf of Defendant) served a notice of the
Settlement upon the appropriate state official of each State in
which a Class member resides and upon the Attorney General of the
United States. Judge McShane finds that the notice provided by the
Defendant satisfied the requirements of 28 U.S.C. Section 1715(b)
and that more than 90 days have elapsed since the required notice
was provided, as required.
Without affecting the finality of this Order and Final Judgment,
the Court retains continuing jurisdiction over the Class Members
and implementation of the Agreement, distribution of the Settlement
Fund, and any other payments required by the Agreement, until each
and every act agreed to be performed pursuant to the Agreement, or
by the Court's orders, has been performed.
As part of the Settlement, Judge McShane awards attorneys' fees and
expenses to compensate the Class Counsel for their time incurred
and expenses advanced. He approves the Class Counsel's Fee and
Expense Application and awards to Class Counsel fees, expenses, and
costs in the total aggregate amount of $500,000, representing 25%
of the Settlement Fund. All such amounts are in lieu of statutory
fees that the Representative Plaintiffs and/or the Class might
otherwise have been entitled to recover.
The Defendant (or its insurer or SSI, on behalf of Defendant) will
pay and distribute all funds or amounts as specified in the
Agreement and in the Order, including payments to the Class
Members, the Representative Plaintiffs, and the Class Counsel.
Accordingly, the matter is dismissed with prejudice, pursuant to
the terms of the Agreement, notwithstanding the Court's retention
of jurisdiction. The clerk is directed to close the matter.
A full-text copy of the Court's Sept. 21, 2022 Order is available
at https://tinyurl.com/ynmyy4cf from Leagle.com.
REBBL INC: Roffman Sues Over Beverages' Misleading Protein Claims
-----------------------------------------------------------------
MEHVA ROFFMAN, an individual, on behalf of herself, the general
public, and those similarly situated, v. REBBL, INC., Case No.
3:22-cv-05290-TSH (N.D. Cal., Sept. 16, 2022) seeks redress for
unlawful and deceptive practices in labeling and marketing the
REBBL brand Plant Powered Elixir beverages which make protein
claims on the front of the product packages.
According to the complaint, consumers are increasingly health
conscious and, as a result, many consumers seek foods high in
protein. To capitalize on this trend, the Defendant prominently
claims on the front of its REBBL brand Plant Powered Elixir
beverage product packages that they provide "16g protein."
Consumers, in turn, reasonably expect that each product will
actually provide the amount of protein per serving claimed on the
front of the product package in a form the body can use, says the
suit.
The Defendant's unlawful and misleading protein claims caused
Plaintiff and members of the class to pay a price premium for the
REBBL brand Plant Powered Elixir beverages, the suit asserts.
The Defendant manufactures, distributes, markets, advertises, and
sells beverages in a variety of flavors under the brand name
"REBBL." Four flavors of REBBL Plant Powered Elixir beverages have
packaging that predominately, uniformly, and consistently states on
the principal display panel of the product labels that they contain
and provide 16 grams of protein per serving.[BN]
The Plaintiff is represented by:
Seth A. Safier, Esq.
Marie A. McCrary, Esq.
Hayley Reynolds, Esq.
GUTRIDE SAFIER LLP
100 Pine Street, Suite 1250
San Francisco, CA 94111
Telephone: (415) 639-9090
Facsimile: (415) 449-6469
E-mail: seth@gutridesafier.com
marie@gutridesafier.com
hayley@gutridesafier.com
RED ROBIN: Mina Appeals TCPA Suit Dismissal to 10th Circuit
-----------------------------------------------------------
MARK MINA is taking an appeal from a court order dismissing his
lawsuit entitled Mark Mina, Plaintiff, v. Red Robin International,
Inc., et al., Defendants, Case No. 1:20-CV-00612-RM-KLM, in the
U.S. District Court for the District of Colorado.
The Plaintiff, individually and on behalf of all others similarly
situated, filed a class action suit against the Defendants for
violation of the Telephone Consumer Protection Act by sending
consumers unsolicited text messages for marketing and advertising
purposes, without prior express written consent, and invading the
consumers' right to privacy.
According to the complaint, Red Robin is a restaurant chain with
over 500 restaurants throughout the United States and Canada. Red
Robin offers a loyalty program called "Red Robin Royalty" to drive
guest traffic and build brand awareness by providing loyalty guests
with various incentives and rewards. Red Robin regularly promoted,
and continues to promote, the Red Robin Royalty program through
text message marketing. Red Robin does so, at least in part,
because text message marketing is a relatively inexpensive way to
reach out to restaurant guests that enables Red Robin to compete
with restaurant chains that have larger marketing resources and
more extensive marketing strategies, the lawsuit says.
On October 8, 2021, the Defendants filed a motion to dismiss with
prejudice.
On June 10, 2022, Magistrate Judge Nina Y. Wang recommended to
grant the Defendant's motion to dismiss with prejudice for failure
to state a claim.
On August 19, 2022, the Court adopted Magistrate Judge Wang's
Report and Recommendations and dismissed the case with prejudice.
The Court determined that the Magistrate Judge's analysis was sound
and discerns no clear error on the face of the record.
The appellate case is captioned as Mina v. Red Robin International,
Inc., et al., Case No. 22-1286, in the United States Court of
Appeals for the Tenth Circuit, filed on September 13, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant Mark Mina fee was due last September 27, 2022;
-- Appellant Mark Mina docketing statement was due last
September 27, 2022;
-- Appellant Mark Mina transcript order was due last September
27, 2022; and
-- Appellant Mark Mina notice of appearance was due last
September 27, 2022. [BN]
Plaintiff-Appellant MARK MINA, individually and on behalf of all
others similarly situated, is represented by:
Marc Lawrence Godino, Esq.
Mark S. Greenstone, Esq.
GLANCY PRONGAY & MURRAY
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
- and -
Thomas Edward Wheeler, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21031 Ventura Boulvard, Suite 340
Woodland Hills, CA 91364
Defendants-Appellees RED ROBIN INTERNATIONAL, INC., et al., are
represented by:
Stacy A. Carpenter, Esq.
Richard Maxton Murray, Esq.
POLSINELLI
1401 Lawrence Street, Suite 2300
Denver, CO 80202
Telephone: (303) 572-9300
- and -
Lauri A. Mazzuchetti, Esq.
Whitney M. Smith, Esq.
KELLEY, DRYE & WARREN
One Jefferson Road, 2nd Floor
Parsippany, NJ 07054-0000
Telephone: (973) 539-0099
RESEARCH STRATEGIES: Duverger Class Suit Dismissed w/o Prejudice
----------------------------------------------------------------
In the class action lawsuit captioned as MARGARETTE DUVERGER,
individually and on behalf of all others similarly situated, v.
RESEARCH STRATEGIES, INC., an Alabama corporation, Case No.
0:21-cv-62465-RAR (S.D. Fla.), the Hon. Judge Rodolfo A. Ruiz II
entered an order that this case is dismissed with prejudice as to
the Plaintiff's individual claims and without prejudice as to any
other putative class member's right to bring claims. Each party
shall bear its own costs and attorneys' fees.
Research Strategies is a full-service Consumer, Public Opinion &
Business-to-Business Market Research Company.
A copy of the Court's order dated Sept. 21, 2022 is available from
PacerMonitor.com at https://bit.ly/3SI6ouE at no extra charge.[CC]
REV GROUP: Securities Suit Final Settlement Payment Paid in 1Q 202
------------------------------------------------------------------
Rev Group Inc. disclosed in its Form 10-Q filing for the quarterly
period ended July 31, 2022, filed with the Securities & Exchange
Commission on September 7, 2022, that the Company's insurers made
the final settlement payment in the first quarter of 2022, in the
consolidated federal putative securities class action and a
consolidated state putative securities class action that had been
pending against the Company and certain of its officers and
directors.
A consolidated federal putative securities class action and a
consolidated state putative securities class action that had been
pending against the Company and certain of its officers and
directors have each been settled. These actions collectively
purported to assert claims on behalf of putative classes of
purchasers of the Company's common stock in or traceable to its
January 2017 IPO, purchasers in its secondary offering of common
stock in October 2017, and purchasers from October 10, 2017 through
June 7, 2018. The state action also named certain of the
underwriters for the Company's IPO or secondary offering as
defendants. The federal and state courts each consolidated multiple
separate actions pending before them, the first of which was filed
on June 8, 2018.
The actions alleged certain violations of the Securities Act of
1933 and, for the federal action, the Securities Exchange Act of
1934. Collectively, the actions sought certification of the
putative classes asserted and compensatory damages and attorneys'
fees and costs. The consolidated state action was stayed in favor
of the consolidated federal action.
On May 19, 2021, the parties to the consolidated federal and state
putative securities class actions executed a stipulation of
settlement for a class settlement with the court and moved for
preliminary approval of the settlement. The settlement payment is
being fully covered by the Company's insurers. The settlement
payment and the related insurance proceeds were recorded in other
current liabilities and other current assets, respectively, in the
Company's Consolidated Balance Sheets as of October 31, 2021.
On August 24, 2021, the court preliminarily approved the
settlement. Notice was then given to the classes certified for
settlement, and the court entered a final judgment approving the
settlement on December 9, 2021.
During the first quarter of fiscal year 2022, the Company's
insurers made the final settlement payment.
REV Group, Inc. is a Wisconsin-based company that operates as a
designer, manufacturer, and distributor of specialty vehicles and
related aftermarket parts and services.
ROB BONTA: Welchen Suit Wins Partial Summary Judgment
-----------------------------------------------------
In the class action lawsuit captioned as GARY WAYNE WELCHEN, v. ROB
BONTA, in his official capacity as the Attorney General of
California, et al.,Case No. 2:16-cv-00185-TLN-DB (E.D. Cal.), the
Hon. Judge Troy L. Nunley entered an order granting the Plaintiff's
motion for partial summary judgment.
The Court finds that the use of the bail schedule in Sacramento
County is unconstitutional. The parties have not briefed the Court
on injunctive relief. "In general, relief must be narrowly tailored
to address the extent of the constitutional violations found."
The parties are ordered to file supplemental briefing within 14
days of the electronic filing date of this Order as to the nature
of injunctive relief necessary in this case. Supplemental briefs
shall be limited to no more than 10 pages.
A copy of the Court's order dated Sept. 22, 2022 is available from
PacerMonitor.com at https://bit.ly/3DZMWp7 at no extra charge.[CC]
ROCHESTER INSTITUTE: Bergeron Seeks to Certify Two Classes
----------------------------------------------------------
In the class action lawsuit captioned as NICHOLAS BERGERON and NICK
QUATTROCIOCCHI, individually and on behalf of others similarly
situated, v. ROCHESTER INSTITUTE OF TECHNOLOGY, Case No.
6:20-cv-06283-CJS-MJP (W.D.N.Y.), the Plaintiffs ask the Court to
enter an order, pursuant of the Federal Rules of Civil Procedure:
1. certifying the classes defined as:
-- The Tuition Class
"All students enrolled at the Institute's "main campus"
in Henrietta N.Y. for the Spring 2020 semester and who
paid or whom the University credited as having paid
tuition during that semester;"
-- The Fees Class
"All students enrolled at the Institute's "main campus"
in Henrietta N.Y. for the Spring 2020 semester and who
paid or whom the Institute credited as having paid fees
during that semester;" and
2. appointing them as Class Representatives; and
3. appointing pursuant to Rule 23(g) of the Federal Rules of
Civil Procedure, Poulin, Willey, Anastopoulo, LLC and
Bursor & Fisher, P.A., as Co-Lead Class Counsel.
Rochester Institute of Technology is a private research university
in the town of Henrietta in the Rochester, New York, metropolitan
area. The university offers undergraduate and graduate degrees,
including doctoral and professional degrees and online masters as
well.
A copy of the Plaintiffs' motion to certify classes dated Sept. 20,
2022 is available from PacerMonitor.com at https://bit.ly/3RfN0ny
at no extra charge.[CC]
The Plaintiffs are represented by:
Blake G. Abbott, Esq.
Roy T. Willey IV, Esq
Paul J. Doolittle, Esq
Eric M. Poulin, Esq
POULIN | WILLEY | ANASTOPOULO, LLC
32 Ann Street
Charleston, SC 29403
Telephone: (843) 614-8888
E-mail: eric@akimlawfirm.com
roy@akimlawfirm.com
- and -
Philip L. Fraietta, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Telephone: (646) 837-7150
Facsimile: (212) 989-9163
E-mail: pfraietta@bursor.com
- and -
Robert L. Mullin, Esq.
FERR & MULLIN, P.C.
7635 Main Street Fishers
P.O. Box 440
Fishers, NY 14453
Telephone: (585) 869-0210
Facsimile: (585) 869-0211
E-mail: rlmullin@ferrmullinlaw.com
- and -
John M. Bradham, Esq.
MOREA SCHWARTZ BRADHAM
FRIEDMAN & BROWN LLP
444 Madison Avenue, 4th Floor
New York, NY 10022
Telephone: (212) 695-8050
E-mail: jbradham@msbllp.com
- and -
Edward Toptani, Esq.
TOPTANI LAW PLLC
375 Pearl Street, Suite 1410
New York, NY 10038
Telephone: (212) 699-8930
E-mail: edward@toptanilaw.com
- and -
Jason P. Sultzer, Esq.
Joseph Lipari, Esq.
Jeremy Francis, Esq.
THE SULTZER LAW GROUP, P.C.
85 Civic Center Plaza, Suite 200
Poughkeepsie, New York 12601
Telephone: (845) 483-7100
Facsimile: (888) 749-7747
E-mail: sultzerj@thesultzerlawgroup.com
liparij@thesultzerlawgroup.com
francisj@thesultzerlawgroup.com
- and -
Anthony M. Alesandro, Esq.
Jeffrey K. Brown, Esq.
Michael A. Tompkins, Esq.
Brett R. Cohen, Esq.
LEEDS BROWN LAW, P.C.
One Old Country Road, Suite 347
Carle Place, NY 11514
Telephone: (516) 873-9550
E-mail: aalesandro@leedsbrownlaw.com
jbrown@leedsbrownlaw.com
mtompkins@leedsbrownlaw.com
bcohen@leedsbrownlaw.com
SAMSUNG ELECTRONICS: Fails to Secure Customers' Info, Clark Claims
------------------------------------------------------------------
STEPHAN CLARK v. SAMSUNG ELECTRONICS AMERICA, INC., Case No.
2:22-cv-05697 (D.N.J., Sept. 23, 2022) is a class action on behalf
of a Nationwide Class and a Michigan Sub-Class against the
Defendant due to its failure to protect the sensitive and
confidential Personally Identifiable Information of millions of
customers -- including first and last names, dates of birth, postal
addresses, precise geolocation data, email addresses, and telephone
numbers.
Plaintiff Clark was notified by Samsung that his Personally
Identifiable Information was compromised in the Samsung data
breach. The Plaintiff purchased two Samsung Galaxy S7 cell phones
in June 2016 and registered both devices with the Defendant. Both
devices were also covered by Samsung's Manufacturer's warranty.
The Plaintiff also purchased two Samsung Galaxy watches in or about
November 2021 and registered both devices with Defendant. Both
devices are also currently covered by Samsung's Manufacturer's
warranty, says the suit.
On September 2, 2022, Plaintiff Clark, and the public, were first
notified of the data breach by Samsung and that cybercriminals had
illegally accessed and stolen confidential customer data from
millions of Samsung customers' accounts. In addition, the Plaintiff
Clark received an e-mail on September 2, 2022 from Samsung
notifying Plaintiff that his Personally Identifiable Information
was among the confidential data that cybercriminals illegally
accessed and stole from Samsung's servers.
As a direct and proximate result of the breach, the Plaintiff Clark
has made reasonable efforts to mitigate the impact of the breach,
including but not limited to: conducting research concerning this
data breach; discussing the breach with his family; reviewing
credit reports and financial account statements for any indication
of actual or attempted identity theft or fraud; and freezing his
credit report. This is valuable time Plaintiff Clark otherwise
could have spent on other activities.
The Defendant's wrongful disclosure has harmed the Plaintiff and
the Classes, which includes millions of people, the suit further
asserts.[BN]
The Plaintiff is represented by:
Joseph J. DePalma, Esq.
Catherine B. Derenze, Esq.
LITE DEPALMA GREENBERG & AFANADOR, LLC
570 Broad Street, Suite 1201
Newark, NJ 07102
Telephone: (973) 623-3000
Facsimile: (973) 623-0858
E-mail: jdepalma@litedepalma.com
cderenze@litedepalma.com
- and -
James J. Pizzirusso, Esq.
Steven M. Nathan, Esq.
HAUSFELD LLP
888 16th St., Ste 300
Washington, DC 20006
Telephone: (202) 540-7200
E-mail: jpizzirusso@hausfeld.com
snathan@hausfeld.com
- and -
Amy E. Keller, Esq.
DICELLO LEVITT LLC
Ten North Dearborn Street
Sixth Floor
Chicago, IL 60602
Telephone: (312) 214-7900
E-mail: akeller@dicellolevitt.com
SAMSUNG ELECTRONICS: Gelizon Sues Over Failure to Safeguard PII
---------------------------------------------------------------
Jay Gelizon, individually and on behalf of all others similarly
situated v. Samsung Electronics America, Inc., Case No.
A-22-857862-C (Nev. 8th Judicial Dist. Ct., Clark Cty., Sept. 2,
2022), is brought on behalf of Class Members whose personally
identifiable information ("PII" or "Private Information") was
stolen by cybercriminals in a cyber-attack that accessed sensitive
patient information through the Defendant's email accounts and to
address the Defendant's inadequate safeguarding of Private
Information that they collected and maintained, and for failing to
provide timely and adequate notice to the Plaintiff that their
information had been subject to the unauthorized access of an
unknown third party.
In July 2022, Defendant lost valuable PII regarding its customers
due to unauthorized access from cybercriminals. Defendant became
aware of this breach on or about August 4, 2022, but waited until
September 2, 2022, to inform its customers that their PII had been
compromised. Plaintiff and Class Members were not notified of the
data breach until September 2022, more than a month after their
information was first accessed.
The cybercriminals accessed insufficiently protected information
belonging to Plaintiff and the Class Members. As a result of
Defendant's failure to properly secure Plaintiff's and the Class
Members' personal information, the cybercriminals obtained
extensive personal information including names, contact and
demographic information, dates of birth, and product registration
information, collectively known as personally identifiable
information. The Plaintiff's and Class Members' sensitive personal
information, which was entrusted the Defendant, its officials and
agents, was compromised, unlawfully accessed, and stolen due to the
Data breach.
As a result of the Defendant's actions and/or inaction, the
Plaintiff and the Class Members were harmed and must now take
remedial steps to protect themselves from future loss. Indeed, the
Plaintiff and all of the Class Members are currently at a very high
risk of misuse of their Private Information in the coming months
and years, including but not limited to unauthorized credit card
charges, unauthorized access to email accounts, identity theft, and
other fraudulent use of their financial accounts. The Defendant's
wrongful actions and/or inaction constitute common law negligence,
invasion of privacy by the public disclosure of private facts,
breach of contract, and breach of implied contract, says the
complaint.
The Plaintiff is a natural person residing in Clark County,
Nevada.
The Defendant is corporation that provides, manufactures and sells
consumer electronics and services, among other things.[BN]
The Plaintiff is represented by:
Michael Kind, Esq.
KIND LAW
8860 South Maryland Parkway, Suite 106
Las Vegas, NV 89123
Phone: (702 337-2322
Fax: (702) 329-5881
Email: mk@kindlaw.com
- and -
Bryan Paul Thompson, Esq.
Robert W. Harrer, Esq.
CHICAGO CONSUMER LAW CENTER, P.C.
Cook County Firm No. 62709
33 N. Dearborn St., Suite 400
Chicago, Illinois 60602
Phone: 312-858-3239
Fax: 312-610-5646
Email: bryan.thompson@cclc-law.com
rob.harrer@cclc-law.com
SBGA INC: Jumper Sues Over Failure to Pay Proper Compensations
--------------------------------------------------------------
Russell Jumper, an individual, on behalf of himself, all others
similarly situated, and the general public v. SBGA INC., a Delaware
corporation, ROBERT T. PARISI, an individual, JASON MOORE, and DOES
1 through 10, Case No. 8:22-cv-01764 (C.D. Cal., Sept. 26, 2022),
is brought pursuant to the Fair Labor Standards Act as a result of
the Defendants' failure to pay proper compensations.
The Defendants require, prerequisite to becoming their employee,
that one must undergo 5 days of unpaid, intensive training, lasting
14 hours per day. Apparently, the Defendants did not believe it was
all that important that mandatory training must be compensated both
under California and federal law. For the Plaintiff, his mandatory
training commenced on September 23, 2019, and it concluded on
September 27, 2019. Hence, on or shortly after September 27, 2019,
the Plaintiff's wages for the time he spent in training became due.
The Plaintiff continued to work for the Defendants for several more
weeks without pay.
The Defendants never paid the Plaintiff for his training, nor did
they pay for the training of any of its coworkers. Nor did
Defendants reimburse the Plaintiff or the Plaintiff Class for any
of the expenses they incurred as a direct consequence of the work
they performed for the Defendants herein. The Defendants and their
agents knew or had reason to know that the Plaintiff, the Plaintiff
Class and the Plaintiff Collective Class were working off the clock
without compensation, yet they suffered or permitted him to do so,
says the complaint.
The Plaintiff is natural person and was employed by the
Defendants.
The Defendants operate a business in California and nationwide that
seeks to aggregate members, who are predominantly small businesses,
to provide various business technologies, electronic payment
solutions, payroll services, website management, accounting
solutions, discounted shipping, and capital funding.[BN]
The Plaintiff is represented by:
Paul T. Cullen, Esq.
THE CULLEN LAW FIRM, APC
19360 Rinaldi Street, Box 647
Porter Ranch, CA 91326
Phone: (818) 360-2529
Fax: (866) 794-5741
Email: paul@cullenlegal.com
SCRIPPS HEALTH: Court Stays Franklin Suit Pursuant to Landis
------------------------------------------------------------
Judge Michael M. Anello of the U.S. District Court for the Southern
District of California issued an order staying the case, MICHELLE
FRANKLIN, individually and on behalf of all others similarly
situated, Plaintiffs v. SCRIPPS HEALTH, et al., Defendants, Case
No. 22-cv-367-MMA (MDD) (S.D. Cal.), pursuant to Landis v. N. Am.
Co., 299 U.S. 248, 254 (1936).
On March 21, 2022, Plaintiffs Michelle Franklin and Irene Gamboa
initiated the putative class action against Scripps and Does 1
through 10. Scripps now moves the Court to stay the case pending
resolution of parallel state court actions.
Scripps is a San Diego-based health care organization providing
medical care to individuals in Southern California. In March 2021,
the Plaintiffs began their employment with Scripps. According to
them, Scripps' timekeeping software, Kronos, was hacked with
ransomware on Dec. 11, 2021. The hack interfered with the Scripps'
ability to use the software, including track hours and pay
employees.
The Plaintiffs allege, generally, that Scripps has since failed to
accurately keep track of employee hours and instead uses various
methods to estimate the number of hours employees worked during the
pay periods. As a result, according to them, it failed to pay them
for their overtime hours in violation of California and state law.
On this basis, the Plaintiffs bring six causes of action on behalf
of a putative class of similarly situated Scripps employees: (1)
failure to pay overtime in violation of the Fair Labor Standards
Act ("FLSA"), 29 U.S.C. Section 207(a); (2) failure to pay
overtime, Cal. Lab. Code Section 510; (3) violation of
recordkeeping requirements, Cal. Labor Code Section 226; (4)
waiting time penalties, Cal. Labor Code Section 203; (5) violation
of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof.
Code Sections 17200, et seq.; and (6) civil penalties pursuant to
the Private Attorneys General Act of 2004 ("PAGA"), Cal. Lab. Code
Sections 2698, et seq.
Scripps asks the Court to stay the action pending resolution of
three pending state court actions: Bell v. Scripps Health, Inc.,
California Superior Court, San Diego County, Health, et al.,
California Superior Court, San Diego County, Case No.
37-2022-00006729-CU-OE-CTL (the "Monreal Action"); and Kimble v.
Scripps Health, California Superior Court, San Diego County, Case
No. 37-2022-00010056-CU-OE-NC (the "Kimble Action").
The Bell Action was initiated on Feb. 10, 2022. Scripps is named as
a defendant along with Does 1 through 100. By way of a first
amended complaint, Bell brings eight causes of action: (1) failure
to pay overtime, Cal. Labor Code Section 510; (2) failure to
provide accurate wage statements, Cal. Lab. Code Section 226(a);
(3) failure to pay minimum wage, Cal. Lab. Code Section 1194; (4)
failure to provide meal periods, Cal. Lab. Code Section 512; (5)
failure to provide rest periods; (6) unfair business practices,
Cal. Bus. & Prof. Code Sections 17200, et seq.; (7) unfair business
practices, Cal. Bus. & Prof. Code 17200; and (8) PAGA penalties.
Bell seeks to represent a class of employees beginning Nov. 7,
2021. Bell seeks declaratory relief, restitution in the form of due
and overtime wages, California Labor Code civil penalties, and PAGA
penalties.
The Monreal Action was initiated on Feb. 22, 2022. Scripps is named
as a defendant along with Scripps Memorial Hospital, La Jolla and
DOES 1 through 100. In the Monreal Action, Monreal brings nine
causes of action: (1) failure to pay overtime, Cal. Lab. Code
Section 510; (2) failure to pay minimum wage, Cal. Lab. Code
Section 1194; (3) failure to pay sick leave, Cal. Lab. Code Section
246; (4) failure to provide meal periods, Cal. Lab. Code Section
512; (5) failure to provide rest periods, Cal. Lab. Code Section
226.7; (6) failure to pay all wages upon termination, Cal. Lab.
Code Section 203; (7) failure to provide accurate wage statements,
Cal. Lab. Code Section 226; (8) unfair competition, Cal. Bus. &
Prof. Code Sections 17200, et seq.; and (9) PAGA penalty. Monreal
seeks to represent a class of Scripps employees beginning Feb. 22,
2018. Monreal seeks restitution in the form of due wages and
overtime, liquidated damages for unpaid minimum wages, and
California Labor Code civil penalties.
The Kimble Action was initiated on March 15, 2022. Kimble brings
four claims against Scripps as the only named defendant: (1)
failure to provide meal periods, Cal. Labor Code Section 512; (2)
failure to pay all wages due at end of employment, Cal. Labor Code
Section 203; (3) failure to provide accurate wage statements, Cal.
Labor Code Section 226; and (4) unfair business practices, Cal.
Bus. & Prof. Code Sections 17200, et seq. Kimble seeks to represent
several subclasses of employees beginning March 15, 2018. Kimble
prays for compensatory damages, restitution in the form of all due
wages, injunctive relief, and California Labor Code penalties.
The Plaintiffs filed their Complaint on March 21, 2022. The only
named defendant is Scripps. As noted, the Plaintiffs assert six
causes of action against Scripps: (1) failure to pay overtime in
violation of the FLSA; (2) failure to pay overtime, Cal. Lab. Code
Section 510; (3) violation of recordkeeping requirements, Cal.
Labor Code Section 226; (4) waiting time penalties, Cal. Labor Code
Section 203; (5) violation of California's UCL, Cal. Bus. & Prof.
Code Sections 17200, et seq.; and (6) civil penalties pursuant to
PAGA, Cal. Lab. Code Sections 2698, et seq. The Plaintiffs seek to
represent a class of Scripps employees beginning Dec. 11, 2021.
They pray for declaratory relief, restitution in the form of unpaid
wages, liquidated damages, and civil penalty damages.
Judge Anello holds that it is clear that the present case is
substantially similar to the State Court Actions. The state court
has already ordered the State Court Actions related, and it is
expected that they will be consolidated. Generally speaking, the
State Court Actions involve the same core theory: That over some
period of time, beginning as early as 2018 and as recent as the end
of 2021, Scripps failed to comply with California labor laws. In
particular, the State Court Actions involve overlapping allegations
that Scripps failed to pay its employees accurate and minimum wages
and overtime and provide meal and rest breaks. Further, the claims
in the State Court Actions are all based upon alleged violations of
the California Labor Code and the California Business & Professions
Code, and many of the claims are exactly the same. These
allegations and claims in the State Court Actions are virtually the
same in the present case.
However, Judge Anello has serious concerns as to whether the State
Court Actions will fully dispose of the present case, which it
noted in the Interim Order. If the State Court Actions settle out
of court, and if the Plaintiffs opt out of those classes, the case
will need to be litigated in full upon return. Although the
Plaintiffs did not oppose the Defendant's request for a stay under
Colorado River Water Conservation Dist. v. United States, 424 U.S.
800, 817-18 (1976), they now inform the Court they are likely to
opt-out of any settlement.
Consequently, Judge Anello has substantial doubt that it will have
"nothing further to do in resolving any substantive part of the
case" when the stay is lifted upon resolution of the State Court
Actions and therefore the present situation does not pose the
"exceptional circumstances" required for the Court to invoke the
Colorado River doctrine. Accordingly, because he cannot "conclude
that the parallel state-court litigation will be an adequate
vehicle for the complete and prompt resolution of the issues
between the parties," and instead has "substantial doubt," Judge
Anello denies Scripps' motion for a stay under Colorado River.
Nonetheless, Judge Anello has the inherent power and discretion to
stay this case under Landis. In the Interim Order, the Court
provided Scripps the opportunity to submit supplemental briefing
either addressing the Court's concerns or indicating that a stay
under Landis is appropriate. In response, Scripps chose the latter,
agreeing that a discretionary stay is warranted. See Doc. No. 20.
The Court also, in the interest of fairness, invited Plaintiffs to
respond. Plaintiffs oppose a stay under Landis.
It is undeniable that Scripps will face hardship if it is required
to simultaneously defend against multiple putative class actions
involving entirely overlapping California-based wage and hour
claims on multiple fronts. And due to the significant overlap, the
possibility of inconsistent rulings would present great inequity.
Further, the orderly course of justice certainly supports granting
a stay. As discussed above, the present action is largely
duplicative of the pending State Court Actions, and it would be
inefficient for the Court and the parties to proceed with this case
in the wake of the State Court Actions.
In sum, Judge Anello holds that with the putative collective
members' FLSA claims equitably tolled, all of the factors --
possible damage, hardship or inequity, and the orderly course of
justice -- strongly weigh in favor of him exercising discretion and
granting a stay. Accordingly, he grants Scripps' motion on this
basis.
Based upon the foregoing, Judge Anello grants in part the
Defendants' motion to stay. In particular, he denies Scripps'
motion to stay the case under Colorado River and instead grants the
motion and stays the case pursuant to Landis pending resolution of
the State Court Actions.
Because he chooses to exercise discretion to stay the case at
Scripps' request, Judge Anello also equitably tolls the FLSA
statute of limitations for the putative collective members' claims
from the date of the filing of the Complaint through the date on
which the stay is lifted. He directs the parties to file a joint
status report within five business days of the conclusion of the
State Court Actions.
A full-text copy of the Court's Sept. 21, 2022 Order is available
at https://tinyurl.com/5n6fjjpz from Leagle.com.
SERVICE FIRST: Webb Files Suit in Cal. Super. Ct.
-------------------------------------------------
A class action lawsuit has been filed against Service First Of
Northern California. The case is styled as Lagerald Webb, an
individual, on behalf of himself, and on behalf of all persons
similarly situated v. Service First Of Northern California, Case
No. STK-CV-UOE-2022-0007604 (Cal. Super. Ct., San Joaquin Cty.,
Aug. 30, 2022).
The case type is stated as "Unlimited Civil Other Employment."
Service First of Northern California -- https://servicefirstnc.org/
-- is a community-based organization that has developed programs
and is driven to serve those most in need.[BN]
The Plaintiff is represented by:
Shani O. Zakay, Esq.
ZAKAY LAW GROUP, APLC
5440 Morehouse Dr., Ste. 3600
San Diego, CA 92121-6720
Phone: 619-255-9047
Fax: 858-404-9203
Email: shani@zakaylaw.com
SESEN BIO: No Final Approval Yet of Securities Suit Settlement
---------------------------------------------------------------
Sesen Bio Inc. disclosed in its Form 8-K report filed with the
Securities and Exchange Commission on September 8, 2022, that the
hearing on the motion for preliminary approval of the proposed
settlement of the consolidated shareholder class action captioned
In re Sesen Bio, Inc. Securities Litigation, Master File No.
1:21-cv-07025-AKH (the "Securities Litigation"), originally
scheduled for October 4, 2022 at 2:00 p.m. local time), was moved
to an earlier date.
On September 8, 2022, Sesen Bio, Inc. (the "Company") announced
that the U.S. District Court for the Southern District of New York
issued an order on September 7, 2022 moving the hearing on the
motion for preliminary approval of the proposed settlement of the
previously disclosed consolidated shareholder class action
captioned In re Sesen Bio, Inc. Securities Litigation, Master File
No. 1:21-cv-07025-AKH (the "Securities Litigation") to September
28, 2022 at 10:00 a.m. local time.
As disclosed in a Current Report on Form 8-K dated September 6,
2022, the hearing on the motion for preliminary approval of the
proposed settlement of Securities Litigation was originally
scheduled in the U.S. District Court for the Southern District of
New York on October 4, 2022 at 2:00 p.m. local time.
The Company also disclosed on September 6, 2022, that the U.S.
District Court for the District of Massachusetts issued an order on
September 2, 2022 granting preliminary approval of the proposed
settlement of the previously disclosed consolidated derivative
lawsuits captioned In re Sesen Bio, Inc. Derivative Litigation,
Lead Case No. 1:21-cv-11538, the derivative lawsuit captioned Tang
v. Sesen Bio, Inc., et al., Case No. 2281-cv-00135 and other
potential related derivative claims (collectively, the "Derivative
Litigation"), in accordance with the Stipulation of Settlement that
the Company disclosed in a Current Report on Form 8-K dated August
30, 2022. The court has set a final settlement approval hearing for
November 8, 2022 at 2:00 p.m. local time.
In May 2022, the Company initiated a process to review potential
strategic alternatives with the goal of maximizing shareholder
value. The Company believes that the settlements of the Securities
Litigation and the Derivative Litigation, if approved, have the
potential to enable a favorable strategic transaction by increasing
the range and attractiveness of strategic alternatives that the
Company is able to consider.
Sesen Bio, Inc. is a late-stage clinical company advancing
targeted
fusion protein therapeutics ("TFPTs") for the treatment of
patients
with cancer.
SHARP CHULA: Underwood Sues Over Unpaid Minimum, Overtime Wages
---------------------------------------------------------------
Jane Underwood, on behalf of herself and all others similarly
situated v. SHARP CHULA VISTA MEDICAL CENTER, a California
corporation; and DOES 1 through 50, inclusive, Case No.
37-2022-00038311-CU-OE-CTL (Cal. Super. Ct., San Diego Cty., Sept.
26, 2022), is brought seeking monetary relief against the
Defendants to recover, unpaid minimum wages and overtime wages
among other things, civil penalties, attorney's fees and costs and
expenses pursuant to Labor Code.
The Plaintiff is alleging that the Defendants have engaged in a
systematic pattern of wage and hour violations under the California
Labor Code and Industrial Welfare Commission ("IWC") Wage Orders.
The Plaintiff is informed and believes, and thereon alleges, that
the Defendants have increased their profits by violating state wage
and hour laws by, among other things: failing to pay all wages
owed, including minimum wage and overtime; failing to provide
lawful meal periods or compensation in lieu thereof, failing to
authorize or permit lawful rest periods or provide compensation in
lieu
thereof; willfully failing to provide accurate semi-monthly
itemized wage statements; and failing to pay all wages due upon
separation of employment, says the complaint.
The Plaintiff was employed by SHARP from October 1999 through on
July 19, 2021.
SHARP is a California corporation which is headquartered in San
Diego, California.[BN]
The Plaintiff is represented by:
James R. Hawkins, Esq.
Isandra Y. Fernandez, Esq.
Lance Dacre, Esq.
Kacey E. Cook, Esq.
Anthony L. Draper, Esq.
JAMES HAWKINS APLC
9880 Research Drive, Suite 200
Irvine, CA 92618
Phone: (949) 387-7200
Fax: (949) 387-6676
Email: james@jameshawkinsaplc.com
isandra@jameshawkinsaplc.com
lance@jameshawkinsaplc.com
kacey@jameshawkinsaplc.com
anthony@jameshawkinsaplc.com
SHREVEPORT, LA: Partial Final Judgment in Pernici Suit Reversed
---------------------------------------------------------------
In the case, T. SCOTT PERNICI, MICHAEL JONES, AND MARK DEFATTA,
INDIVIDUALLY AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED
PERSONS, Plaintiffs-Appellees v. CITY OF SHREVEPORT, LOUISIANA,
Defendant-Appellant, Case No. 54,474-CA (La. App.), the Court of
Appeal of Louisiana for the Second Circuit reverses the trial
court's June 28, 2021 partial final judgment.
The appeal arises from the First Judicial District Court, Caddo
Parish, Judge Michael Pitman presiding. The Defendant, the City of
Shreveport, appeals the trial court's June 28, 2021 partial final
judgment.
On March 29, 2017, the Plaintiffs, approximately 65,000 people,
filed a class action petition for the recovery of overpayment of
water and sewerage charges by and from the City of Shreveport. They
consisted of persons who: (1) were current or former residents of
the City and/or Caddo Parish from March 29, 2007, (2) were or are
residential customers of City water and sewerage services from
March 29, 2007 to the present; (3) were, between March 29, 2007 and
the present, subject to paying residential sewerage service charges
under Shreveport, La., Ordinance Section 94-165(2)(a) (1994),; and
(4) were overcharged for their residential sewerage usage and/or
service charges as a result of the City's failure to properly
compute their customers' average monthly water usage in compliance
with the Ordinance.
The Ordinance stated during the relevant time period: Quantity
charges for metered residential customers will be based on 100
percent of water consumption unless the individual customer's
average monthly water usage is less for the months of November,
December, January and February, calculated after the month with the
highest metered water usage and the month with the lowest metered
usage have been eliminated.
More specifically, the Plaintiffs stated that the City failed to
properly compute average winter consumption ("AWC") for residential
sewerage usage based on the formula provided in the Ordinance. They
alleged that their water and sewer bills were consistently
inaccurate and that customers inside the city limits had been
charged at most $31.48 more monthly, while customers outside the
city limits had been charged up to $62.94 more monthly.
The Plaintiffs stated that the City used an excessive number of
days in computing customers' AWC. They contended that as far back
as 2007, the City used numbers in excess of 120 days (121 in a leap
year) to calculate customers' AWC and sewerage rates. The inclusion
of extra days in one or more of the four winter months sometimes
created false high consumption months which resulted in an
inaccurate, higher AWC number.
The Plaintiffs stated that this resulted in sewerage rate
overcharges to a significant percentage of its residential
customers. They claimed that the residential water meters the City
utilizes have the capacity to account for water usage to the gallon
and truncating and/or rounding is not necessary. They also raised
claims of overbilling for those residential customers who have
older hundred cubic feet meters to track their water usage, which
are different from newer meters which measure water usage in
gallons
The Plaintiffs also brought claims for breach of contract, unjust
enrichment, payment of a thing not due, and a request for a
declaratory judgment that they have a right to offset their future
water bills with any damages the court deemed they were owed due to
their claims. They asked for a permanent injunction prohibiting the
City from (1) using in excess of 120 days of actual water
consumption in determining customers' AWC; (2) using water
consumption from any days not falling in November, December,
January, and February in calculating customers' AWC; and/or (3)
from truncating and/or rounding up in computing customers' AWC.
The Plaintiffs also requested a permanent injunction to prevent the
City from turning off water services of residents for failure to
pay for water and sewerage services. They asked for a writ of
mandamus directing the City to set sewer rates in accordance with
the Ordinance. They sought a customer-by-customer accounting in
order to determine the identity of residential customers and the
amounts they were each overbilled or underbilled, as well as
damages, fees, and costs. The City answered the petitions and
denied all claims.
The trial court ultimately divided the classes into two
sub-classes: (1) the "rounding" subclass, which included class
members who were overcharged for sewerage when their AWC was
calculated which resulted from the City's practice of ("after
'truncating' when reading the meter and only reading the
'thousands' of gallons") by rounding up to the nearest "whole
thousand gallons," and using that rounded amount to calculate
customers' sewerage charges; and (2) the "days-months" sub-class,
which included class members who were overcharged for sewerage when
their AWC was calculated by utilizing all amount of days in excess
of 120 (121 in a leap year) and/or the class members' AWC was
calculated by using days that were not in the months of November,
December, January, and February.
On May 3, 2019, the Plaintiffs filed a motion for partial summary
judgment on the issue of liability. In their motion, they argued
that there were no disputed issues of material fact, that the City
had acknowledged its billing practices, and that the only issue to
be decided by the court was a matter of statutory interpretation,
an issue of law. They argued that the use of the City's methods was
an intentional effort by the City to generate greater revenue. They
further argued that the Ordinance's AWC calculation did not include
water consumption during the "billing cycles" of those months,
which would include both October and March, and neither did it
include discretionary days. The Plaintiffs asked the court to enter
a judgment in their favor as to liability.
On July 31, 2019, the City filed its own motion for summary
judgment. The City detailed the process by which residential water
meters are read and customers are then billed. It argued that the
Ordinance and Rules do not reference "calendar months," but rather
billing cycles. The City contended that the Rules contemplate one
meter reading approximately once per month, and not on the same day
for everyone in the City. It argued that the Ordinance must be read
in pari materia with its other laws, which demonstrates that a
requirement cannot be in place to read meters on a precise calendar
month basis. Such a result would be inconsistent with the Rules
setting forth that all meters are read sequentially on different
days in the 19 regions, and only 12 times per year. The City stated
that in order for all of the City's residential meters to be read
on the first and last day of each calendar month, "an army of meter
readers would be required."
The Plaintiffs replied to the opposition and argued that the Rules
promulgated by DOWAS do not have the same authority as the
Ordinance, which was legislatively enacted. They again asserted
that because the City did not dispute that its practice did not
comply with the plain language of the Ordinance, the matter should
be concluded.
On Sept. 3, 2019, a hearing on the cross-motions for summary
judgment was held. No new arguments were raised. Both sides
acknowledged that there were no material facts at issue and the
matters for the trial court to determine were solely questions of
law.
On Oct. 14, 2019, a second hearing on the cross-motions for summary
judgment was held in order for the City to answer the trial court's
question regarding the rounding issue. On Nov. 26, 2019, the trial
court signed a judgment granting the Plaintiffs' motion for partial
summary judgment on liability and denying the City's motion for
summary judgment. The City sought supervisory review with this
Court, which was denied.
On Oct. 20 to 21, 2020, a bench trial was held on the quantum of
damages on the days-months issue. The Plaintiffs called an expert
witness, Ronald Gagnet, over the City's objection. Gagnet was
accepted as an expert in certified public accounting, certified
financial forensics, and damages calculations. The Plaintiffs
submitted Gagnet's expert report and spreadsheets prepared by him
to estimate damages to the days-months subclass. The City objected
to Gagnet's method of calculating damages and to his providing
allegedly new opinions at trial.
The City called Barbara Featherston, an engineer and the former
head of DOWAS, and Robert Hanisee, a business analyst with the
City's information technology department. Featherston and Hanisee
each testified about how the City computes residential AWC rates
and the method in which it quantifies, logs, and bills for
residents' water usage and sewerage.
On March 10, 2021, the trial court signed an opinion awarding
damages to the Plaintiffs. It summarized the testimony of Gagnet,
Featherston, and Hanisee, and noted, "The City did not present an
expert witness, nor any other evidence, to contradict Mr. Gagnet's
opinion." The trial court also noted that Gagnet's expert report
was provided to the City more than two months prior to trial. It
determined that the days-months sub-class were entitled to damages
in the principal amount of $9,626,894 with interest due from the
date of judicial demand. On March 29, 2021, the trial court signed
a judgment awarding same.
On June 28, 2021, the trial court signed a partial final judgment
which stated that the parties stipulated that the amount of
interest due from the date of judicial demand through June 28,
2021, was $1,773,047.20. It then stated that having ruled on the
Plaintiffs' motion for partial summary judgment as to liability,
the City's motion for summary judgment, the issue of quantum as to
the days-months subclass, and the amount of interest, it designated
its order as an appealable partial final judgment. The City now
appeals.
The City raises the following assignments of error: Whether the
trial court erred in finding the City liable to the days-months
subclass at the summary judgment stage of the proceedings; Whether
the trial court erred in awarding damages to the days-months
sub-class, since the evidence failed to establish damages to a
reasonable certainty; Whether the trial court erred in allowing a
CPA to offer expert opinion on damages modeling; and Whether the
trial court erred in allowing a CPA to offer new opinions during
the trial.
The City argues that the trial court did not consider legislative
intent in analyzing the City ordinance at issue. It contends that
the Ordinance must be read and reconciled with the rest of the
statutory scheme and to do otherwise leads to absurd results. It
states that the Plaintiffs failed to prove special damages to a
reasonable degree of certainty and that the trial court essentially
found that, because the City did not call an expert witness, it
could award any amount that plaintiffs' expert supplied. The City
points out that there is no requirement in the law that one expert
witness must be countered by another. It claims that Gagnet's
testimony was speculative and theoretical and he did not attempt to
calculate individual damages despite admitting he could have done
so. It asks that this Court reverse the trial court's rulings.
The Plaintiffs argue that the Ordinance is clear and unambiguous,
and the trial court's rulings are correct. They state that DOWAS
does not read meters and issue bills at precise intervals and that
the City's meter-reading and billing practices resulted in an
inflated AWC for each class member. They argue that the Rules
created by DOWAS are not of equal dignity with the City's code of
ordinances, because the Rules were not accepted by the city
council. They state that the executive branch is not tasked with
creating or interpreting the laws, but that is the designated work
of the legislature and the courts, respectively. The Plaintiffs
argue that the words of the Ordinance must be given their plain
meaning.
The City filed a reply brief, but did not assert new arguments.
The Court of Appeal finds that the City's charter and ordinances
make it clear that water and sewerage utilities are meant to be
considered as one "enterprise." Sewerage charges are dependent upon
water meter readings. Therefore, the sewerage billing system is
dependent upon the water billing system, which is not billed on a
calendar month basis, but uses monthly billing periods. The City's
water and sewer bills are distributed to its customers together on
a single bill.
To interpret the Ordinance to mean that only the water used in the
calendar months of November, December, January, and February must
be used in calculating the AWC is illogical given that the
residential water meters in Shreveport are read manually. When the
Shreveport City Council passed the Ordinance, they did so with the
understanding that the City's water meters were, and continue to
be, read by a person who follows a route, going residence by
residence to read water meters. To expect all manually read water
meters in the City, consisting of tens of thousands of residences,
to be read on the last day of every month is impossible given the
system for reading water meters that the City has in place.
When a law is clear and unambiguous and its application does not
lead to absurd consequences, then it is interpreted as written. To
so strictly construe the Ordinance as the trial court did here
leads to such absurd consequences. Therefore, the trial court's
rulings are reversed.
A full-text copy of the Court's Sept. 21, 2022 Order is available
at https://tinyurl.com/2eyuutma from Leagle.com.
PETTIETTE, ARMAND, DUNKELMAN, WOODLEY, BYRD & CROMWELL, L.L.P., By:
Joseph S. Woodley -- jwoodley@padwbc.com -- Edwin H. Byrd, III --
ebyrd@padwbc.com -- Marshall L. Perkins -- mperkins@padwbc.com --
Counsel for the Appellant.
HARPER LAW FIRM, APLC, By: Jerald R. Harper -- jerry@harperfirm.com
-- Anne E. Wilkes -- anne@harperfirm.com -- Counsel for the
Appellees.
SIGNATUREMD INC: Wins Summary Judgment Bid in Derossett TCPA Suit
-----------------------------------------------------------------
In the case, KIMBERLY DEROSSETT v. JONATHAN C. PATROWICZ, D.O.,
P.A., and SIGNATUREMD, INC., Civil Action No. DKC 21-1294 (D. Md.),
Judge Deborah K. Chasanow of the U.S. District Court for the
District of Maryland enters a Memorandum Opinion:
a. granting the joint motion for summary judgment by
Dr. Patrowicz and SignatureMD;
b. denying the Plaintiff's cross-motion for summary judgment;
c. denying as moot the Plaintiff's motion for class
certification;
d. granting the Defendant's motion for leave to file audio
files; and
e. granting both parties' motions to file certain exhibits and
papers under seal.
Dr. Patrowicz is a primary care doctor who treats patients in
Salisbury, Maryland. He is one of few general practitioners in the
area, and -- as of last year -- he had nearly four-thousand
patients. In early 2021, he decided to restructure his practice. He
planned to reduce the practice to 300 patients, each of whom would
pay an annual membership fee. That meant that the vast majority of
Dr. Patrowicz's patients were about to lose their primary care
doctor.
Seeking to enroll patients in his new practice, Dr. Patrowicz began
a several-month-long messaging campaign, through which he emailed,
called, and sent letters to his current patients. To help in that
effort, he hired Cypress Membership Medicine (later acquired by
SignatureMD), a consulting company that helps doctors transition to
concierge and subscription-based treatment models. SignatureMD
sought to help Dr. Patrowicz persuade enough patients to join his
new practice so that he could transition to a membership-based
model without suffering severe income loss.
On April 6, 2021, Dr. Patrowicz sent an email and a letter to his
patients announcing the upcoming changes. He explained that he
would be "limiting" his practice to "300 patients on a
first-come-first-served basis." Any patient who sought to
"continue" receiving his care, he said, would have to pay a
membership fee. SignatureMD helped to draft that letter and email.
A SignatureMD transition manager told Dr. Patrowicz that the letter
and email were meant to "inform and encourage patients to sign up
before they lose their spot" and to "encourage sales without
sounding too 'salesy.'"
Dr. Patrowicz also contacted his patients through two phone calls
that contained prerecorded voice messages. The first call -- made a
few weeks after the announcement letter -- discussed "changes" to
his patients' care and invited patients to attend a webinar where
they could ask questions. The second call -- made a few weeks after
the first -- encouraged any remaining interested patients to sign
up because the practice was nearly full.
SignatureMD helped Dr. Patrowicz record both messages, and each
message was based on a template SignatureMD provided. Dr.
Patrowicz likewise sent SignatureMD his patients' contact
information, and SignatureMD used that information to send the
voice messages to each patient's phone. These calls were made only
to patients whom Dr. Patrowicz had treated before.
Ms. Derossett was one such patient. She first sought care from Dr.
Patrowicz's practice in 2005. For the next decade, she visited his
office "at least annually," and, according to the office's records,
she sought the practice's care more than 30 times. While receiving
that care, Ms. Derossett gave the practice her phone number, and
signed a privacy form. That form authorized the practice to "use
and disclose" her phone number in several ways.
In 2015 or 2016, Ms. Derossett began visiting a different primary
care doctor. Around that time, she called Dr. Patrowicz's office
and asked for her medical records to be transferred. The employee
who answered the phone told her that the practice no longer
considered her a patient. That employee also said that Ms.
Derossett would need to pay a $45 transfer fee, and that she would
have to come into the office to fill out transfer paperwork. Ms.
Derossett did not do either. As a result, when Dr. Patrowicz began
calling his patients in 2021, he had no record of Ms. Derossett
leaving his practice or finding a new doctor.
Ms. Derossett concedes that if she "were a patient" of Dr.
Patrowicz, she would "want" to receive the prerecorded calls he
sent. But because she did not consider herself an active patient,
she found the calls to be a "nuisance." Nevertheless, she did not
contact Dr. Patrowicz to ask him to stop contacting her.
Instead, she sued him: On May 25, 2021 -- about one month after Dr.
Patrowicz made his first prerecorded call -- Ms. Derossett filed
the case against his holding company. She alleged that, by making
prerecorded calls to her cellphone, Dr. Patrowicz violated the
Telephone Consumer Protection Act. She later amended her complaint
to alter the Defendants. After conducting discovery, the Defendants
moved for summary judgment. Ms. Derossett cross-moved for summary
judgment, and moved for class certification. Both parties filed
replies.
In their motion for summary judgment, the Defendants seem to
concede that Ms. Derossett never provided prior express written
consent, but they argue that this heightened consent was not
required. Rather, they assert that they merely had to meet the
lower prior-express-consent threshold because, even if their calls
involved telemarketing, they "delivered a health care message" and
thus fit the health care message exception. They also argue that
Ms. Derossett provided this less-stringent form of consent because
she gave Dr. Patrowicz her phone number and signed his privacy
form.
Ms. Derossett argues that, because Dr. Patrowicz sought to sell
memberships to his new practice, his calls involved "telemarketing"
and thus they are unlawful without prior express written consent.
She likewise argues that she never provided such consent because --
even though she gave Dr. Patrowicz her phone number and authorized
him to call her for certain reasons -- she never expressly allowed
him to send prerecorded messages.
Judge Chasanow finds that Defendants right. First, the calls fit
the health care message exception because they delivered a health
care message about changes to patients' primary care services. Thus
they were lawful as long as Ms. Derossett provided prior express
consent. Ms. Derossett may very well be right that the calls here
do not meet those heightened requirements. But that is irrelevant
because the Defendants never invoked the exigent healthcare
treatment exception in the first place.
Second, Ms. Derossett provided the prior express consent that such
a health care message requires. Ms. Derossett did not revoke her
consent because she never told Dr. Patrowicz to stop contacting
her. Instead, she merely called the practice and asked for her
medical records to be transferred to another doctor. That request
might mean that she is no longer Dr. Patrowicz's patient, but
because she did not "clearly express" a "desire not to receive
calls," she did not revoke her consent to be "contacted" about
"health-related" "services" that she might be interested in.
In their motions to file under seal, the parties have made three
motions to file exhibits and papers under seal.
First, the Defendants move to file under seal five exhibits
attached to their motion for summary judgment. Three of these
exhibits are depositions: (1) Dr. Patrowicz's deposition, (2) the
deposition of SignatureMD employee Julie Robinson, (3) Ms.
Derossett's deposition.
The Defendants' motion to file the depositions under seal will be
granted. The remaining two exhibits are duplicates of Ms.
Derossett's patient registration form. That document contains Ms.
Derossett's private health information, and it should remain
confidential. The Defendants' motion to file these exhibits under
seal will be granted.
Second, Ms. Derossett moves to file under seal her unredacted
motion papers: (1) the Plaintiff's Memorandum of Law in Opposition
to Defendants' Joint Motion for Summary Judgment and in Support of
Plaintiff's Cross-Motion for Summary Judgment, and (2) the
Plaintiff's Cross-Motion for Summary Judgment. The redacted
portions refer to the depositions that the parties wish to seal in
their entirety, but the quoted sections don't seem to contain
sensitive matters (and some portions are quoted in this Memorandum
Opinion that will not be sealed). Thus, there is no need to keep
the unredacted motion papers under seal and this motion will be
denied.
Third, Ms. Derossett moves to file under seal four depositions
attached to her motion for class certification. Three of these are
identical to exhibits that the Defendants attached to their motion
for summary judgment: (1) Dr. Patrowicz's deposition, (2) the
deposition of SignatureMD employee Julie Robinson, and (3) Ms.
Derossett's deposition.
The Plaintiff's motion to file these exhibits under seal will be
granted for the same reason that Defendants' motion to seal the
same exhibits will be granted. She also moves to file under seal
one deposition that was not attached to the Defendants' motion for
summary judgment: The deposition of SignatureMD employee Jodi
Rios-Towns. Like the other depositions filed under seal, the parts
of Ms. Towns' deposition that are relevant to the disposition of
the case are cited in the Opinion and a redacted version need not
be filed. Thus, the Plaintiff's motion to file this deposition
under seal will be granted.
Finally, the Defendants move to file audio files containing the
audio of Dr. Patrowicz's calls. That unopposed motion will be
granted.
Judge Chasanow concludes that because the Defendants' calls are
"health care messages" under the Telephone Consumer Protection Act,
and because the Plaintiff provided prior express consent to receive
those calls, the Defendants' motion for summary judgment is granted
and the Plaintiff's cross-motion for summary judgment is denied.
The Plaintiff's motion for class certification is likewise denied
because it is now moot, and the motions to seal exhibits and the
motion to file audio files are granted, but the motion to seal
unredacted copies of motion papers is denied.
A full-text copy of the Court's Sept. 23, 2022 Memorandum Opinion
is available at https://tinyurl.com/3wxjmcc3 from Leagle.com.
SIMM ASSOCIATES: Linkenberg Files FDCPA Suit in S.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Simm Associates, Inc.
The case is styled as Esther Linkenberg, individually and on behalf
of all others similarly situated v. Simm Associates, Inc. also
known as: SIMM Associates of Delaware, Case No. 7:22-cv-08084
(S.D.N.Y., Sept. 21, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
SIMM Associates -- https://www.simmassociates.com/ -- is a family
owned and operated financial services business assisting clients as
accounts receivable management specialists.[BN]
The Plaintiff is represented by:
Robert Thomas Yusko, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: ryusko@steinsakslegal.com
SMITH & WESSON: Court Extends Certification Motion in Toronto Suit
------------------------------------------------------------------
Smith & Wesson Brands Inc. disclosed in its Form 10-Q filing for
the quarterly period ended July 31, 2022 filed with the Securities
and Exchange Commission on September 8, 2022, that in the putative
class proceeding before the Ontario Superior Court of Justice in
Toronto, Canada that was filed in December 2019, the court extended
plaintiffs' certification motion that was scheduled for December
2022, to give them time to file additional evidence in support of
certification.
The Company is a defendant in a putative class proceeding before
the Ontario Superior Court of Justice in Toronto, Canada that was
filed in December 2019. The action claims CAD$50 million in
aggregate general damages, CAD$100 million in aggregate punitive
damages, special damages in an unspecified amount, together with
interest and legal costs.
The named plaintiffs are two victims of a shooting that took place
in Toronto in July 2018 and their family members. One victim was
shot and injured during the shooting. The other victim suffered
unspecified injuries while fleeing the shooting. The plaintiffs are
seeking to certify a claim on behalf of classes that include all
persons who were killed or injured in the shooting and their
immediate family members. The plaintiffs allege negligent design
and public nuisance. The case has not been certified as a class
action.
In July 2020, the Company filed a Notice of Motion for an order
striking the claim and dismissing the action in its entirety.
In February 2021, the court granted the Company’s motion in part,
and dismissed the plaintiffs' claims in public nuisance and strict
liability. The court declined to strike the negligent design claim,
and ordered that the claim proceed to a certification motion.
In March 2021, the Company filed a motion for leave to appeal the
court's refusal to strike the negligent design claim with the
Divisional Court, Ontario Superior Court of Justice.
In July 2021, plaintiffs filed a motion to stay its motion for
leave to appeal with the Divisional Court, on grounds that appeal
is premature.
In November 2021, the Divisional Court granted plaintiffs' motion,
staying the Company's motion for leave to appeal until 30 days
after the decision on the balance of plaintiffs' certification
motion.
Plaintiffs' certification motion, which had been scheduled for
December 2022, has been extended by the court to allow plaintiffs
to file further evidence in support of certification.
Smith & Wesson Brands, Inc. is a Massachusetts-based manufacturer
and designer of firearms.
SMITH & WESSON: Faces Workers' Suit in Mass. Over Unpaid Wages
--------------------------------------------------------------
Smith & Wesson Brands Inc. disclosed in its Form 10-Q filing for
the quarterly period ended July 31, 2022, filed with the Securities
& Exchange Commission on September 8, 2022, that on March 9, 2022,
two plaintiffs, on behalf of a proposed class of current and former
employees and temporary workers who worked at the Company's
Springfield facility from November 2018 to the present, filed a
claim alleging non-payment of wages and overtime in violation of
the Massachusetts Wage Act and Massachusetts Fair Wage Act. The
case has not been certified as a class action.
The Company believes the claims asserted in the complaint have no
merit, and it intends to aggressively defend this action.
Smith & Wesson Brands, Inc. is a manufacturer and designer of
firearms based in Massachusetts.
SNAPCHAT INC: Agrees $35M Settlement Over Biometric Law Violations
------------------------------------------------------------------
According to Top Class Action's cover, Snap Inc. has agreed to a
$35 million class action settlement resolving claims certain
Snapchat features violate biometric privacy law.
The class consists of Illinois residents who used the "Lenses" and
"Filters" Snapchat features from Nov. 17, 2015, to the present.
Snapchat is a popular video-sharing app operated by Snap Inc. App
users can choose to apply filters and lenses to enhance their
videos before sending them privately or sharing them publicly.
However, the platform may violate the Illinois Biometric
Information Privacy Act (BIPA). BIPA requires companies to take
certain steps to guard biometric data, including obtaining written
consent before collecting such information and providing written
guidelines for how the information will be stored and destroyed.
In a class action lawsuit, plaintiffs allege Snap Inc. possesses,
collects, and discloses biometric data through Snapchat's lenses
and filters, thereby not complying with BIPA.
Under the terms of the Snapchat settlement agreement, class members
are eligible to collect cash payments from the settlement fund
after paying expenses such as attorneys' fees and administration
costs.
Class members who submit a valid and timely claim form can receive
a proportionate payment from the settlement fund. No payment
estimates are available.
Those who wish to opt out of or object to the Snapchat settlement
are on Oct. 6, 2022.
A final approval hearing will be held on Nov. 17, 2022.
The deadline to file a claim is Nov. 5, 2022.
Who's Eligible
Illinois residents who used the "Lenses" and "Filters" Snapchat
features from Nov. 17, 2015, to the present.
Potential Award
Class members who submit a valid and timely claim form can receive
a proportionate payment from the settlement fund. No payment
estimates are available.
Proof of Purchase
No proof of purchase is applicable. However, class members
submitting a claim must provide the following:
(i) Full legal name;
(ii) Snapchat username;
(iii) Personal attestation they have lived in Illinois for at least
183 days, or 6 months, during the class period and during that time
used Snapchat's Lenses or Filters features; and
(iv) One Illinois address at which they resided during the class
period.
Claim Form
The link for the claim form is provided:
https://www.snapillinoisbipasettlement.com/submit-claim
NOTE: If any Illinois class member does not qualify for this
settlement, do NOT file a claim.
Remember: Class members are submitting the claim under penalty of
perjury. Also, it's harming other eligible Class Members by
submitting a fraudulent claim. If one is unsure if they qualify,
please read the FAQ section of the Settlement Administrator's
website to ensure you meet all standards (Top Class Actions is not
a Settlement Administrator).
If anyone doesn't qualify for this settlement, check out the Top
Class Actions database of other open class action settlements for
which one may be eligible.
Claim Form Deadline:
11/05/2022
Case Name:
Boone, et al. v. Snap Inc., Case No. 2022LA000708 in the Circuit
Court of the 18th Judicial Circuit, DuPage County, Illinois
Final Hearing:
11/17/2022
Settlement Website:
SnapIllinoisBIPASettlement.com
Claims Administrator:
Snapchat Privacy Settlement
c/o Administrator
1650 Arch Street, Suite 2210
Philadelphia, PA 19103
info@snapillinoisbipasettlement.com
1-844-939-4343
Class Counsel:
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC
Defense Counsel:
MORGAN, LEWIS & BOCKIUS LLP [GN]
STANDARD FIRE INSURANCE: Norman Files Suit in C.D. Illinois
-----------------------------------------------------------
A class action lawsuit has been filed against The Standard Fire
Insurance Company. The case is styled as Angela Norman,
individually and on behalf of others similarly situated v. The
Standard Fire Insurance Company, Case No. 2:22-cv-02199-CSB-EIL
(C.D. Ill., Sept. 21, 2022).
The nature of suit is stated as Insurance for Insurance Contract.
The Standard Fire Insurance Company operates as an insurance
company. The Company underwrites auto, fire, marine, and casualty
insurance.[BN]
The Plaintiff is represented by:
Andrew Shamis, Esq.
SHAMIS & GENTILE, PA
14 NE 1st Ave., Suite 705
Miami, FL 33132
Phone: (404) 797-9696
Fax: (786) 623-0915
Email: ashamis@shamisgentile.com
STATE FARM MUTUAL: Stevens Suit Removed to C.D. California
----------------------------------------------------------
The case styled as Carmel Stevens, Ladale Jackson, individually and
on behalf of all others similarly situated v. State Farm Mutual,
Inc., State Farm General Incorporated, Does 1 through 50,
inclusive, Case No. 22STCV21865 was removed from the Los Angeles
Superior Court, to the U.S. District Court for Central District of
California on Sept. 6, 2022.
The District Court Clerk assigned Case No. 2:22-cv-06362-FLA-MAA to
the proceeding.
The nature of suit is stated as Other Civil Rights.
State Farm Insurance -- https://www.statefarm.com/ -- is a large
group of mutual insurance companies throughout the United States
with corporate headquarters in Bloomington, Illinois.[BN]
The Plaintiffs are represented by:
Bianca Victoria Perez, Esq.
HAINES LAW GROUP APC
2155 Campus Drive Suite 180
El Segundo, CA 90245
Phone: (424) 292-2350
Fax: (424) 292-2355
Email: bperez@haineslawgroup.com
- and -
Carl Edwin Douglas, Esq.
Jamon R Hicks, Esq.
DOUGLAS HICKS LAW APC
5120 West Goldleaf Circle Suite 140
Los Angeles, CA 90056
Phone: (323) 655-6505
Fax: (323) 927-1941
Email: carl@douglashickslaw.com
jamon@douglashickslaw.com
The Defendants are represented by:
Daniel Nowicki, Esq.
Heather Lynn Richardson, Esq.
Tiaunia Nyeba Henry, Esq.
Bradley Joseph Hamburger, Esq.
GIBSON DUNN AND CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
Phone: (213) 229-7000
Fax: (213) 229-7520
Email: dnowicki@gibsondunn.com
hrichardson@gibsondunn.com
thenry@gibsondunn.com
bhamburger@gibsondunn.com
SUNOCO PARTNERS: Seeks Stay Pending Sup. Ct. Appeal Ruling in Cline
-------------------------------------------------------------------
SUNOCO PARTNERS MARKETING & TERMINALS L.P., et al. filed an
emergency application for injunction or stay pending resolution of
their petition for certiorari asking the U.S. Supreme Court to
review the judgment of the United States Court of Appeals for the
Tenth Circuit in the case captioned as Sunoco Partners & Term., et
al., Applicants, v. Perry Cline, Case No. 20-7064.
In 2017, Perry Cline, individually and on behalf of all others
similarly situated, filed a class-action lawsuit against Sunoco
under Oklahoma's Production Revenue Standards Act (PRSA). Cline
alleged that Sunoco failed to pay statutory interest on late
payments to a class of owners of interests in oil wells in
Oklahoma.
On August 17, 2020, the district court found Sunoco liable for
failing to pay PRSA interest and awarded the class damages.
On August 27, 2020, the court issued a judgment order awarding the
class roughly $80 million in actual damages and $75 million in
punitive damages. The judgment order did not allocate the damages
among class members. Because the judgment order nonetheless
purported to be a Rule 58 final judgment, Sunoco filed a protective
notice of appeal, while forthrightly explaining why the judgment
order was not actually final and appealable.
The Tenth Circuit agreed and dismissed the appeal for lack of
jurisdiction, stating that the district court had not yet issued a
plan to allocate the damages it awarded, and so had not yet issued
a final judgment.
Meanwhile, Sunoco filed motions for a new trial and to amend the
judgment, which the district court denied. At that point, Sunoco
filed another protective notice of appeal and its second and third
appeals were consolidated. Notwithstanding both parties' pleas that
it resolves the finality dispute, identify any additional steps the
district court might need to take, and decide the appeals on the
merits once finality was resolved, the Tenth Circuit again
dismissed the appeals. It also denied rehearing and rehearing en
banc.
Sunoco then filed a mandamus petition asking the Tenth Circuit to
order the district court to make modest modifications to its orders
to render them final. Without opining on finality, the Tenth
Circuit denied the petition on the ground that Sunoco has not shown
either that it has no other adequate means to obtain relief or that
its right to the writ is clear and indisputable, and further
concluded that issuance of the writ is not appropriate under the
circumstances. [BN]
Defendants-Petitioners SUNOCO PARTNERS MARKETING & TERMINALS L.P.,
et al., are represented by:
Paul D. Clement, Esq.
CLEMENT & MURPHY, PLLC
706 Duke Street
Alexandria, VA 22314
Telephone: (202) 742-8900
E-mail: paul.clement@clementmurphy.com
SW MANAGEMENT: Tieppoa Sues Over Failure to Pay Overtime Wages
--------------------------------------------------------------
Bianca Tieppoa and Natalie Farmer, each individually and on behalf
of all others similarly situated v. SW MANAGEMENT GROUP, LLC, Case
No. 1:22-cv-00970 (W.D. Tex., Sept. 26, 2022), is brought under the
Fair Labor Standards Act and applicable administrative rules and
regulations for declaratory judgment, monetary damages, liquidated
damages, prejudgment interest, and costs, including reasonable
attorneys' fees as a result of the Defendant's failure to pay the
Plaintiffs a proper overtime compensation for all hours that the
Plaintiffs worked.
The Plaintiffs worked over forty hours in at least one week within
the three years preceding the filing of this Complaint. The
Defendant did not provide a timekeeping system by which the
Plaintiffs could track their time. The Defendant told Plaintiffs
that Defendant could track the Plaintiffs' work online and knew
when they were working. The Defendant could and did track the work
of other Sales Representatives. The Defendant knew or should have
known that the Plaintiffs worked hours over forty in at least some
weeks within the three years preceding the filing of this
Complaint. The Plaintiffs were not paid overtime wages for hours
worked over forty per week, says the complaint.
The Plaintiffs were employed by the Defendant as Sales
Representatives.
The Defendant is a foreign, limited liability company and does
business as Healthy Back Institute, LLC.[BN]
The Plaintiff is represented by:
Lydia H. Hamlet, Esq.
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Parkway, Suite 510
Little Rock, AK 72211
Phone: (501) 221-0088
Facsimile: (888) 787-2040
Email: lydia@sanfordlawfirm.com
josh@sanfordlawfirm.com
T-MOBILE US: Agrees to Pay $350M Settlement in Data Breach Suit
---------------------------------------------------------------
Dan Avery wrote that T-Mobile has agreed to a $350 million payout
to settle litigation over a 2021 cyberattack that exposed millions
of users' personal information. So, if one is current or past
T-Mobile customer, then T-Mobile owed money to each one in a rather
large legal settlement.
The carrier hasn't acknowledged any wrongdoing, but in a statement
shared with CNET, said it was "pleased to have resolved this
consumer class action filing."
"Customers are first in everything we do and protecting their
information is a top priority, and like every company, we are not
immune to these criminal attacks," T-Mobile said.
If given final approval, the agreement will be the second-largest
data breach settlement in US history, following Equifax's $700
million settlement in 2019.
What happened in the T-Mobile data breach case?
On Aug. 15, 2021, T-Mobile reported a cyberattack had led to the
theft of millions of people's personal information -- including
names, addresses, birth dates, Social Security numbers, driver's
license details, and unique codes that identify individual phones.
Exactly how many people were hacked and how they were impacted is
unclear: According to court filings, approximately 76.6 million
people had their data exposed, but T-Mobile has claimed only about
850,000 people's names, addresses, and PINs were "compromised."
An individual selling the information on the dark web for 6
bitcoins (approximately $277,000 at the time) told Vice they had
data relating to over 100 million people, all compiled from
T-Mobile servers.
John Binns, a 21-year-old living in Turkey, eventually took
responsibility for the cyberattack, the fifth such attack that has
hit T-Mobile since 2015. "I was panicking because I had access to
something big, and their security is awful," Binns told The Wall
Street Journal.
The July 24 settlement, filed in the US District Court for the
Western District of Missouri, merges at least 44 class-action suits
that claimed T-Mobile was lax with its cybersecurity. It also
stipulates that T-Mobile invest $150 million in improving data
security.
Cyberattacks aside, T-Mobile still expects to add 6 million to 6.3
million new customers this year -- making it the industry leader in
subscriber growth over rivals AT&T and Verizon.
How much money could I receive from the settlement?
Class members, in this case, people who were T-Mobile customers in
August 2021, could receive cash payments of $25, Reuters reported,
or $100 if they are California residents.
It could also be substantially less, depending on how many people
respond. In addition to paying out claims, the $350 million has to
go toward settling legal fees and administrative costs. The
plaintiffs' lawyers may charge up to 30% of the settlement,
according to court filings.
Separately, some people could receive as much as $25,000 to cover
losses they suffered as a direct result of the breach.
T-Mobile is also offering two free years of McAfee's ID Theft
Protection Service to anyone who believes they may have been a
victim of the hack.
How do I find out if I qualify for a payment from T-Mobile?
T-Mobile has not released the full details of its payment plan.
Typically, class members are notified they are eligible by mail.
(Full disclosure: This reporter was a T-Mobile customer at that
time.)
Once customers are notified, they are then given 90 days to submit
claim forms or request to opt out of the settlement and reserve the
right to pursue their own separate legal claims, according to court
papers.
"It could be several months before individuals find out if they
will receive money from the settlement," TechCrunch reported.
When will payments go out?
Qualified class members likely won't see any money until at least
2023. T-Mobile has 30 days to provide the court with a list of
class members, along with their phone numbers and mailing and email
addresses, "to the extent available."
Once eligible parties are notified, claims can be submitted. Legal
fees are deducted and the remaining money is divvied up among class
members who sent back claims. That could take months.
In addition, the $350 million payout has only received preliminary
approval. It still requires a final sign-off from a judge, which
T-Mobile said would come by December at the earliest.
What is T-Mobile doing to protect against future security
breaches?
T-Mobile has "doubled-down" on fighting hackers, the company said
in its July 22 statement, by boosting employee training,
collaborating with industry experts like Mandiant and Accenture on
new protocols, and creating a cybersecurity office that reports
directly to the company's chief executive officer, Mike Sievert.
Security journalist Brian Krebs reported in April 2022 that
T-Mobile was a victim of the hacking group Lapsus$.
The hackers accessed employee accounts and attempted to find
T-Mobile accounts associated with the Department of Defense and
FBI, TechCrunch reported. They were thwarted by secondary
authentication checks. [GN]
TESLA INC: Mallow Files Sues Over Vehicles' Deceptive ADAS Feature
------------------------------------------------------------------
CHRISTOPHER MALLOW, individually, and on behalf of all others
similarly situated, Plaintiff v. TESLA, INC. dba TESLA MOTORS,
INC.; TESLA LEASE TRUST; and TESLA FINANCE LLC, Defendant, Case No.
4:22-cv-05443-DMR (N.D. Cal., Sept. 23, 2022) is a class action
against the Defendants for violations of the California Unfair
Competition Law, the California False Advertising Law, and the
Magnuson-Moss Warranty Act, and for breach of express warranty,
breach of implied warranties, fraud and deceit, and negligent
misrepresentation.
According to the complaint, Tesla advertises its vehicles as
"engineered to be the safest in the world." In particular, Tesla
touts its "Autopilot technology," claiming that its cars' "active
safety features can help reduce the severity or prevent accidents
from happening altogether." In reality, many of the statements and
claims made by Tesla about its advanced driver assistance systems
(ADAS) technology, which is marketed under various names, including
"Autopilot," "Enhanced Autopilot," and "Full Self-Driving
Capability," are deceptive and misleading, the suit alleges.
Instead of simply identifying product or brand names, these
"Autopilot" and "Full Self-Driving Capability" labels and
descriptions represent that vehicles equipped with the ADAS
features will operate as an autonomous vehicle, but vehicles
equipped with those ADAS features could not at the time of those
advertisements, and cannot now, operate as autonomous vehicles,
says the suit.
Plaintiff Mallow purchased a new 2020 Model 3 Tesla Performance
Edition and paid an additional $7,000 for the "Full Self-Driving
Capability" option on November 4, 2019. He brings this class action
lawsuit on behalf of himself and other consumers who purchased or
leased a new Tesla vehicle and paid more for Tesla's ADAS
technology and who allegedly suffered a loss of money and/or loss
in value of their vehicle as a result of their reliance on partial
representations and/or omissions by Tesla.
Tesla, Inc. is an American multinational automotive and clean
energy company headquartered in Austin, Texas.[BN]
The Plaintiff is represented by:
David S. Casey, Jr., Esq.
Gayle M. Blatt, Esq.
Jeremy Robinson, Esq.
P. Camille Guerra, Esq.
Michael J. Morphew, Esq.
CASEY GERRY SCHENK FRANCAVILLA
BLATT & PENFIELD, LLP
110 Laurel Street
San Diego, CA 92101
Telephone: (619) 238-1811
E-mail: dcasey@cglaw.com
gmb@cglaw.com
jrobinson@cglaw.com
camille@cglaw.com
mmorphew@cglaw.com
TEXAS HEALTH: Shull Sues to Recover Back and Overtime Wages
-----------------------------------------------------------
Christopher Shull, individually and on behalf of all others
similarly situated v. TEXAS HEALTH AND HUMAN SERVICES COMMISSION,
Case No. 2:22-cv-00220 (S.D. Tex., Sept. 21, 2022), is brought on
behalf of all current and/or former employees of the Defendant who
worked as registered nurses and who were paid at the same rate of
pay for all of the hours they worked during the past three years to
recover back wages, liquidated damages, attorney's fees and costs
under the Fair Labor Standards Act of 1938.
The Defendant violated the FLSA by employing the Plaintiff "for a
workweek longer than forty hours but refusing to compensate them
for their employment in excess of forty hours at a rate not less
than one and one-half times the regular rate at which they were or
are employed." The Defendant willfully violated the FLSA because it
knew or showed a reckless disregard for whether its pay practices
were unlawful, says the complaint.
The Plaintiff was employed by the Defendant as a registered nurse
from February 16, 2018, to the present.
Texas Health and Human Services Commission is an agency of the
State of Texas.[BN]
The Plaintiff is represented by:
Melissa Moore, Esq.
Curt Hesse, Esq.
Bridget Davidson, Esq.
MOORE & ASSOCIATES
Lyric Centre
440 Louisiana Street, Suite 1110
Houston, TX 77002-1055
Phone: (713) 222-6775
Facsimile: (713) 222-6739
Email: melissa@mooreandassociates.net
curt@mooreandassociates.net
TEXTRON INC: $7.9MM Class Settlement to be Heard on Nov. 18
-----------------------------------------------------------
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
In re Textron Inc. Securities Litigation
CASE NO.: 1:19-cv-7881-DC
SUMMARY NOTICE OF (i) PENDENCY OF CLASS ACTION AND PROPOSED
SETTLEMENT; (ii) MOTION FOR AN AWARD OF ATTORNEYS' FEES AND
REIMBURSEMENT OF LITIGATION EXPENSES; AND
(iii) SETTLEMENT FAIRNESS HEARING
TO:
ALL PERSONS AND ENTITIES WHO PURCHASED OR OTHERWISE ACQUIRED
TEXTRON INC. ("TEXTRON") COMMON STOCK ON THE NYSE OR OTHER U.S.
EXCHANGES OR IN A U.S. TRANSACTION BETWEEN JANUARY 31, 2018 AND
DECEMBER 6, 2018, INCLUSIVE (THE "SETTLEMENT CLASS").
Certain persons and entities are excluded from the Settlement Class
as set forth in the Stipulation and Agreement of Settlement dated
June 23, 2022 ("Stipulation") and the Notice described below.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the United States District Court
for the Southern District of New York, that the above-captioned
action ("Action") has been provisionally certified as a class
action for the purposes of settlement only and that the parties to
the Action have reached a proposed settlement of the Action
("Settlement"). A hearing will be held on November 18, 2022 at 3:00
p.m. before the Honorable Denise Cote, United States District
Judge, at the Southern District of New York, 500 Pearl St.,
Courtroom 18B, New York, NY 10007-1312, for the purpose of
determining: a) whether the proposed Settlement of the claims
alleged in the Action for Seven Million Nine Hundred Thousand
Dollars ($7,900,000.00), is fair, reasonable, and adequate and
should be approved by the Court; b) whether the Action should be
dismissed with prejudice against the Defendants as set forth in the
Stipulation; c) whether the Settlement Class should be certified
for purposes of settlement; d) whether the proposed Plan of
Allocation is fair and reasonable and should be approved by the
Court; e) whether Lead Counsel's request for an award of attorneys'
fees and reimbursement of Litigation Expenses should be approved by
the Court; and f) any other relief the Court deems necessary to
effectuate the terms of the Settlement.
IF YOU ARE A MEMBER OF THE SETTLEMENT CLASS, YOUR RIGHTS WILL BE
AFFECTED BY THE SETTLEMENT OF THIS ACTION, AND YOU MAY BE ENTITLED
TO SHARE IN THE SETTLEMENT FUND.
If you have not received a detailed Notice of (i) Pendency of Class
Action and Proposed Settlement; (ii) Motion for an Award of
Attorneys' Fees and Reimbursement of Litigation Expenses; and (iii)
Settlement Fairness Hearing ("Notice") and Claim Form, you may
obtain a copy by contacting the Claims Administrator by mail at
Textron Securities Litigation c/o A.B. Data Ltd., P.O. Box 173042,
Milwaukee, WI 53217, by email at
info@TextronSecuritiesLitigation.com by telephone at 877-354-3791,
or by the website at www.TextronSecuritiesLitigation.com . If you
are a Settlement Class Member, in order to share in the
distribution of the Net Settlement Fund, you must submit a Claim
Form by mail (postmarked no later than January 20, 2023), or
electronically no later than January 20, 2023, establishing that
you are entitled to recover. If you are a Settlement Class Member
and do not submit a proper Claim Form, you will not be eligible to
share in the distribution of the net proceeds of the Settlement but
you will nevertheless be bound by any releases, judgments or orders
entered by the Court in the Action.
If you are a Settlement Class Member, you have the right to object
to the Settlement, the Plan of Allocation, or the attorneys' fee
and Litigation Expense applications, or otherwise request to be
heard. To object, you must submit a written objection in accordance
with the procedures described in the more detailed Notice, referred
to above. Any written objection must be delivered to the following
recipients so that it is received no later than October 28, 2022:
(a) the Clerk's Office, United States District Court for the
Southern District of New York, 500 Pearl Street, New York, NY
10007; and (b) Frederic S. Fox, Kaplan Fox & Kilsheimer LLP, 850
Third Avenue, 14th Floor, New York, NY 10022. Note that the Court
can only approve or deny the Settlement, not change the terms of
the Settlement.
If you are a Settlement Class Member and wish to exclude yourself
from the Settlement Class, you must submit a request for exclusion
such that it is received no later than October 28, 2022, in
accordance with the procedures described in the Notice. If you
properly exclude yourself from the Settlement Class, you will not
be bound by any releases, judgments or orders entered by the Court
in the Action and you will not be eligible to share in the net
proceeds of the Settlement. Excluding yourself is the only option
that allows you to be part of any other current or future lawsuit
against Defendants or any of the other released parties concerning
the claims being resolved by the Settlement. Please note, however,
if you decide to exclude yourself from the Settlement Class, you
may be time-barred from asserting the claims covered by the Action
by a statute of repose.
PLEASE DO NOT CONTACT THE COURT, THE CLERK'S OFFICE, DEFENDANTS OR
THEIR COUNSEL REGARDING THIS NOTICE. If you have any questions
about the Settlement, you may contact Lead Counsel at the address
listed below:
Frederic S. Fox
KAPLAN FOX & KILSHEIMER LLP
850 Third Avenue, 14th Floor
New York, NY 10022
(212) 687-1980
mail@kaplanfox.com
Dated: September 26, 2022
By Order of the Clerk of Court
United States District Court
Southern District of New York
TLMVACO LLC: Montoya Sues Over Unpaid Overtime Wages
----------------------------------------------------
Aura Montoya, an individual and on behalf of all others similarly
situated v. TLMVACO LLC, JOSE MARIA PENA VILLA, dba TIENDA LA
MICHOACAN, DOLORES VILLA, JOSE MARIA VILLAM JR., ARMANDO VILLA,
SOLEDAD VILLA ALFARO, and DOES 1 through 100, inclusive, Case No.
22CV402793 (Cal. Super. Ct., Santa Clara Cty., Sept. 6, 2022), is
brought against the Defendants seeking overtime wages, minimum
wages, payment of premium wages for missed meal and rest periods,
failure to pay timely wages, waiting time penalties, wage state
penalties, failure to indemnify work related expenses, and other
such provision of California law, and reasonable attorneys' fees
and costs in violations of the California Labor Code.
The Defendants had and have a policy or practice of failing to pay
overtime wages to Plaintiff and other Aggrieved Employees in the
State of California in violation of California state wage and hour
laws as a result of, without limitation, the Plaintiff working over
8 hours per day, 40 hours per week, and seven consecutive work days
in a work week without being properly compensated for hours worked
in excess of 8 hours per day, 40 hours per week, and seven
consecutive work days in a work week by, among other things,
failing to accurately track and/or pay for all minutes actually
worked at the proper overtime rate of pay, to the detriment of the
Plaintiff, says the complaint.
The Plaintiff was employed by the Defendants as a non-exempt
employee.
TLMVACO LLC is a corporation organized and existing under and by
virtue of the laws of the State of California.[BN]
The Plaintiff is represented by:
David D. Bibiyan, Esq.
BIBIYAN LAW GROUP, P.C.
8484 Wilshire Boulevard, Suite 500
Beverly Hills, CA 90211
Phone: (310) 438-5555
Fax: (310) 300-1705
TRIUMPH PROTECTION: Santos Files Suit in Cal. Super. Ct.
--------------------------------------------------------
A class action lawsuit has been filed against Triumph Protection
Group Inc., et al. The case is styled as Dennis Santos, on behalf
of all others similarly situated and on behalf of the general
public v. Triumph Protection Group Inc, Does 1-10, Case No.
34-2022-00326193-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Sept.
2, 2022).
The case type is stated as "Other Employment - Civil Unlimited."
Triumph Protection Group -- https://triumphprotection.com/ -- is a
California based security company that is expanding into
Nevada.[BN]
The Plaintiff is represented by:
Mark Yablonovich, Esq.
LAW OFFICES OF MARK YABLONOVICH
9595 Wilshire Blvd., Ste. 900
Beverly Hills, CA 90212-2509
Phone: 310-286-0246
Fax: 310-407-5391
Email: mark@yablonovichlaw.com
TRUSTEES OF BOSTON UNIVERSITY: Senior Files ADA Suit in S.D.N.Y.
----------------------------------------------------------------
A class action lawsuit has been filed against Trustees of Boston
University. The case is styled as Milagros Senior, on behalf of
herself and all other persons similarly situated v. Trustees of
Boston University, Case No. 1:22-cv-08080 (S.D.N.Y., Sept. 21,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Trustees Of Boston University -- https://www.bu.edu/trustees/ -- is
the board of education in Boston, Massachusetts.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: nyjg@aol.com
michael@gottlieb.legal
TWITTER INC: $809.5MM Class Settlement to be Heard on Nov. 17
-------------------------------------------------------------
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
In re Twitter Inc. SECURITIES
LITIGATION
Case No. 4:16-cv-05314-JST (SK)
CLASS ACTION
IF YOU PURCHASED OR ACQUIRED TWITTER, INC. ("TWITTER") PUBLICLY
TRADED COMMON STOCK FROM FEBRUARY 6, 2015 THROUGH JULY 28, 2015,
INCLUSIVE, AND WERE DAMAGED THEREBY (THE "CLASS"), YOU COULD
RECEIVE A PAYMENT FROM A CLASS ACTION SETTLEMENT. CERTAIN PERSONS
ARE EXCLUDED FROM THE DEFINITION OF THE CLASS AS SET FORTH IN THE
STIPULATION OF SETTLEMENT.
PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS MAY BE AFFECTED BY
A CLASS ACTION LAWSUIT PENDING IN THIS COURT.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and Order of the United States District Court
for the Northern District of California, Oakland Division, that a
Settlement for $809,500,000.00 in cash to be paid or caused to be
paid by Twitter, Inc. has been proposed in the above-captioned
litigation (the "Litigation") in exchange for mutual releases and
dismissal of the Litigation against the Defendants as set forth in
a Stipulation of Settlement between Class Representatives and
Twitter, Inc. dated January 5, 2022, and a separate Stipulation of
Dismissal and Mutual Release of Claims between the Class
Representatives and defendants Richard Costolo and Anthony Noto
dated January 5, 2022 (the "Agreement"). A hearing will be held on
November 17, 2022, at 2:00 p.m., before the Honorable Jon S. Tigar,
at the United States District Court, Northern District of
California, Oakland Division, Ronald V. Dellums Federal Building
and Courthouse, Courtroom 6, 1301 Clay Street, Oakland, CA 94612,
for the purpose of determining whether: (1) the proposed Settlement
and the Agreement should be approved by the Court as fair,
reasonable, and adequate; (2) the Litigation should be dismissed in
accordance with the terms of the Settlement and the Agreement; (3)
the proposed Plan of Allocation for distribution of the Settlement
proceeds is fair, reasonable, and adequate and therefore should be
approved; and (4) the application of Class Counsel for the payment
of attorneys' fees and expenses from the Settlement Fund, including
interest earned thereon, and awards to the Class Representatives,
should be granted.
IF YOU ARE A MEMBER OF THE CLASS DESCRIBED ABOVE, YOUR RIGHTS MAY
BE AFFECTED BY THE SETTLEMENT OF THE LITIGATION, AND YOU MAY BE
ENTITLED TO SHARE IN THE SETTLEMENT FUND. If you have not received
a detailed Notice of (1) Proposed Class Action Settlement; (2)
Settlement Hearing; and (3) Motion for an Award of Attorneys' Fees
and Litigation Expenses (the "Notice") and a copy of the Proof of
Claim, you may obtain a copy of these documents by contacting the
Claims Administrator: In re Twitter, Inc. Securities Litigation,
Administrator, PO Box 6389, Portland, OR 97228-6389. You may also
obtain copies of the Stipulation of Settlement, Notice and Proof of
Claim, as well as case-related documents and all briefs and
documents in support of the Settlement at
www.TwitterSecuritiesLitigation.com.
If you are a Class Member, to be eligible to share in the
distribution of the Net Settlement Fund, you must submit a Proof of
Claim by mail postmarked no later than November 23, 2022, or submit
it online by that date. If you are a Class Member and do not submit
a valid Proof of Claim, you will not be eligible to share in the
distribution of the Net Settlement Fund, but you will still be
bound by any judgment entered by the Court in this Litigation
(including the releases provided for therein).
Any objection to the proposed Settlement, the Agreement, the Plan
of Allocation of Settlement proceeds, or the fee and expense
application must be filed with the Court no later than October 27,
2022, and meet the requirements set forth in the Notice.
PLEASE DO NOT CONTACT THE COURT, THE CLERK'S OFFICE, DEFENDANTS, OR
DEFENDANTS' COUNSEL REGARDING THIS NOTICE. If you have any
questions about the Settlement, or your eligibility to participate
in the Settlement, you may contact Class Counsel:
ROBBINS GELLER RUDMAN & DOWD LLP
ELLEN GUSIKOFF STEWART
655 West Broadway, Suite 1900
San Diego, CA 92101
1-800-449-4900
MOTLEY RICE LLC
GREGG S. LEVIN
MAX N. GRUETZMACHER
28 Bridgeside Blvd.
Mt. Pleasant, SC 29464
1-800-697-4630
DATED: August 30, 2022
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
UGI CORP: $10.25MM Class Settlement to be Heard on Nov. 30
----------------------------------------------------------
IN THE COURT OF COMMON PLEAS OF
MONTGOMERY COUNTY, PENNSYLVANIA
JOHN FORD, TRUSTEE OF THE JOHN FORD TRUST Individually
and on Behalf of Themselves and All Others Similarly Situated,
Plaintiff,
vs.
UGI CORPORATION, JOHN L. WALSH, TED J. Jastrzebski,
Laurie A. BergmaN, Marvin O. Schlanger, M. Shawn
Bort, Theodore A. Dosch, Richard W. Gochnauer,
Alan N. Harris, Frank S. Hermance, Anne Pol, Kelly
A. Romano, and James B. Stallings, Jr.,
Defendants.
CIVIL ACTION
Case No. 2021–00391
SUMMARY NOTICE OF PENDENCY OF CLASS ACTION, PROPOSED SETTLEMENT,
AND MOTION FOR ATTORNEYS' FEES AND EXPENSES
To:
All persons and entities that purchased or acquired UGI Corporation
("UGI" or the "Company") publicly traded common stock pursuant
and/or traceable to the Registration Statement issued in connection
with UGI's August 21, 2019 acquisition of AmeriGas Partners L.P.
(the "Offering")
YOU ARE HEREBY NOTIFIED, pursuant to an Order of the Court of
Common Pleas of Montgomery County, Pennsylvania, that plaintiff
John Ford, Trustee of the John Ford Trust ("Plaintiff" or
"Trustee"), on behalf of himself and the proposed Settlement
Class,1 and UGI and the other defendants in the Action, have
reached a proposed settlement of the above-captioned class action
(the "Action") in the amount of $10,250,000 that, if approved, will
resolve the Action in its entirety (the "Settlement").
A hearing will be held before the Honorable Steven C. Tolliver,
Sr., either in person or remotely in the Court's discretion, at the
Court of Common Pleas of Montgomery County, Pennsylvania, Justice
Center, Courtroom 12, 2 East Airy Street, Norristown, PA 19401 at
10:00 a.m. on November 30, 2022 (the "Settlement Hearing") to,
among other things, determine whether the Court should: (i) approve
the proposed Settlement as fair, reasonable, and adequate; (ii)
dismiss the Action with prejudice as provided in the Stipulation
and Agreement of Settlement, dated August 11, 2022; (iii) approve
the proposed Plan of Allocation for distribution of the Net
Settlement Fund; and (iv) approve Lead Counsel's Fee and Expense
Application. The Court may change the date of the Settlement
Hearing, or decide to hold it remotely, without providing another
notice. Please check the Settlement website for information about
the hearing at www.UGISecuritiesSettlement.com. You do NOT need to
attend the Settlement Hearing to receive a distribution from the
Net Settlement Fund.
IF YOU ARE A MEMBER OF THE SETTLEMENT CLASS, YOUR RIGHTS WILL BE
AFFECTED BY THE PROPOSED SETTLEMENT AND YOU MAY BE ENTITLED TO A
MONETARY PAYMENT. If you have not yet received a Notice and Proof
of Claim and Release form ("Claim Form"), you may obtain copies of
these documents by visiting the website dedicated to the
Settlement, www.UGISecuritiesSettlement.com, or by contacting the
Claims Administrator at:
UGI Corporation Securities Litigation
c/o A.B. Data, Ltd.
P.O. Box 173118
Milwaukee, WI 53217
Inquiries, other than requests for the Notice/Claim Form or for
information about the status of a claim, may also be made to Lead
Counsel:
Alfred L. Fatale III, Esq.
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
www.labaton.com
(888) 219-6877
If you are a Settlement Class Member, to be eligible to share in
the distribution of the Net Settlement Fund, you must submit a
Claim Form postmarked or submitted online no later than
December 30, 2022. If you are a Settlement Class Member and do not
timely submit a valid Claim Form, you will not be eligible to share
in the distribution of the Net Settlement Fund, but you will
nevertheless be bound by all judgments or orders entered by the
Court in the Action, whether favorable or unfavorable.
If you are a Settlement Class Member and wish to exclude yourself
from the Settlement Class, you must submit a written request for
exclusion in accordance with the instructions set forth in the
Notice such that it is received no later than November 9, 2022. If
you properly exclude yourself from the Settlement Class, you will
not be bound by any judgments or orders entered by the Court in the
Action, whether favorable or unfavorable, and you will not be
eligible to share in the distribution of the Net Settlement Fund.
Any objections to the proposed Settlement, the proposed Plan of
Allocation, and/or Lead Counsel's Fee and Expense Application must
be filed with the Court and mailed to counsel for the Parties in
accordance with the instructions in the Notice, such that they are
filed and received no later than November 9, 2022.
PLEASE DO NOT CONTACT THE COURT, DEFENDANTS, OR
DEFENDANTS' COUNSEL REGARDING THIS NOTICE.
DATED: SEPTEMBER 15, 2022
BY ORDER OF THE COURT OF COMMON PLEAS OF
MONTGOMERY COUNTY, PENNSYLVANIA
UNILEVER: Little Sues Over Dangerously High Levels of Benzene
-------------------------------------------------------------
Elizabeth Little, Cathy Armstrong, Clair Awad, Kelly Branch,
Suzanne Fitzgerald, Mari Gunn, Sarah Herandez, Stacy Vail, and
Christina Vanviet, on behalf of themselves and all others similarly
situated v. UNILEVER UNITED STATES, INC., Case No. 3:22-cv-01189
(D. Conn., Sept. 21, 2022), is brought arises out of Unilever's
manufacture, marketing, labeling, distribution, and sale of dry
shampoo products (the "Unilever Dry Shampoo Products" or the
"Products"), under the Unilever brands "Suave," "TIGI," "Tresemme,"
"Dove," "Nexxus," and "Living Proof" without disclosing to or
warning consumers that the Products contain, and/or have a material
risk of containing, high levels of benzene, a known human
carcinogen.
Pharmaceutical testing laboratory Valisure, LLC recently tested for
the carcinogen benzene in a number of Unilever Dry Shampoo
Products. Valisure's testing found that the levels of benzene in
Unilever Dry Shampoo Products significantly exceeded the guidelines
established by the FDA for "drug products with a significant
therapeutic advance," of 2 parts per million ("ppm"). Indeed,
Valisure found that almost half of the Unilever Dry Shampoo
Products it tested contained benzene that exceeded (and often far
exceeded) the 2ppm limit, including benzene levels that tested as
high as 31 times the 2ppm limit. Given that the Unilever Dry
Shampoo Products are consumer products--not drugs--these results
are even more concerning. Because dry shampoo products contain no
active pharmaceutical ingredient for therapeutic purpose, the
presence of benzene at these levels is unacceptable.
Benzene is a known human carcinogen. Benzene is proven to cause
cancer in humans, including blood cancers such as leukemia.
Unilever itself has acknowledged that "Benzene is classified as a
human carcinogen" and that exposure can "result in cancers
including leukemia and blood cancer of the bone marrow and blood
disorders which can be life threatening." In addition to cancer,
direct exposure of the eyes, skin, or lungs to benzene can cause
tissue injury and irritation. There effectively is no safe exposure
limit for benzene.
Given Unilever's purported commitment to product safety, Unilever
knew or should have known of the dangerous and carcinogenic effects
of benzene and should have known that it was producing products
that contained, or had a material risk of containing, benzene.
Indeed, Unilever touts and promotes its "strict quality controls"
to "limit the presence of benzene" in its products. Nevertheless,
Unilever has produced, marketed, labeled, distributed, and sold
millions of Dry Shampoo Products that contained, or had a material
risk of containing, benzene.
The Plaintiffs purchased the Unilever Dry Shampoo Products for use
in accordance with the directions provided on their packaging. The
Plaintiffs did so because they believed the Unilever Dry Shampoo
Products had been manufactured using acceptable standards and
practices and that they were safe. However, the Unilever Dry
Shampoo Products are toxic, dangerous, unmerchantable products that
are unfit for their intended purpose and use. The Plaintiffs and
the Class would not have purchased and used the Unilever Dry
Shampoo Products, or would have paid less for the Unilever Dry
Shampoo Products, had they known of the presence of benzene
rendering them unsafe (or known of the material risk that the
Products contained benzene) and have, therefore, not received the
benefit of their bargain, says the complaint.
The Plaintiffs are purchasers and users of the Unilever Dry Shampoo
Products.
Unilever manufactures, markets, labels, distributes, and sells the
Unilever Dry Shampoo Products throughout the United States.[BN]
The Plaintiff is represented by:
Steven L. Bloch, Esq.
Ian W. Sloss, Esq.
Zachary A. Rynar, Esq.
SILVER GOLUB & TEITELL LLP
One Landmark Sq., 15th Fl.
Stamford, CT 06901
Phone: (203) 325-4491
Fax: (203) 325-3769
Email: sbloch@sgtlaw.com
isloss@sgtlaw.com
zrynar@sgtlaw.com
UNITED STATES: FBI Agents Sued for Unreturned Safe Deposit Boxes
----------------------------------------------------------------
Sam Tabahriti wrote in Insider that a lawsuit that was filed after
FBI agents raided a vault company, seizing more than $86 million in
cash as well as jewelry and gold from 1,400 safe-deposit boxes,
says the owners' items have still not been returned and that agents
misled a judge to get the warrant.
Agents raided the Beverly Hills, California, branch of US Private
Vaults in March 2021 and seized assets from boxes held by hundreds
of people who were not suspected in any crimes, court papers
reported on by the Los Angeles Times say.
The lawsuit alleges the FBI and the US attorney's office in Los
Angeles obtained search-and-seizure warrants against US Private
Vaults by concealing critical details from the judge who approved
them.
Robert Frommer, a lawyer with the Institute for Justice, which
filed the lawsuit, said in the court papers: "The government did
not know what was in those boxes, who owned them, or what, if
anything, those people had done."
After the raid, many box holders asked the FBI for their property
back, Frommer told Insider.
"We brought suit on behalf of seven clients, but we were
representing a class of at least 400 people. What we've been trying
to show for the past several months is that the government's
actions violated the search-and-seizure protections of the US
Constitution in the Fourth Amendment," he said.
"The scope of what the FBI did is unprecedented," Frommer added.
"This was the largest armed robbery in United States history, and
it was committed by the FBI."
After a two-year investigation that began in 2019, leaders of the
FBI's Los Angeles office said they believed boxes at US Private
Vaults were being used by criminals to store illicit proceeds.
The FBI requested and obtained warrants to seize US Private Vaults'
business property. But the LA Times reported a senior FBI agent
recently testified that the warrant omitted a key part of the
bureau's plan -- to permanently seize everything in every box that
contained at least $5,000 in cash or goods.
Frommer said in an Institute for Justice press release last month:
"The FBI lied about its intentions in claiming to only be
interested in the property of the business, and not the box
holders. Ultimately, the lure of civil forfeiture turned these
federal cops into robbers."
Laura Eimiller, an FBI spokesperson, told the LA Times the warrants
were lawfully executed "based on allegations of widespread criminal
wrongdoing."
She added: "At no time was a magistrate misled as to the probable
cause used to obtain the warrants."
US Private Vaults has pleaded guilty to conspiracy to launder drug
money, and the investigation is ongoing, Eimiller added.
The FBI and Department of Justice did not immediately respond to
requests for comment.
Frommer wants the government to destroy any information or records
obtained from customers' boxes in what he said was a violation of
the Fourth Amendment.
The Fourth Amendment protects against "unreasonable searches and
seizures." It requires the government to get a warrant by showing
probable cause explaining why a location needs to be searched and
describing specifically what it is seizing.
The plaintiffs in the lawsuit have asked for the FBI raid to be
deemed unconstitutional by a district judge, the LA Times reported.
Doing so could force the return of assets worth millions of dollars
to box holders. [GN]
US FINANCIAL: Loses Bid to Dismiss Bumpus' Relief and UCL Claims
----------------------------------------------------------------
In the case, PATRICK S. BUMPUS, individually, and on behalf of the
class, Plaintiff v. U.S. FINANCIAL LIFE INSURANCE COMPANY, an Ohio
Corporation, Defendant, Case No. 2:20-cv-00926-MCE-AC (E.D. Cal.),
Judge Morrison C. England, Jr., of the U.S. District Court for the
Eastern District of California denies the Defendant's Motion to
Dismiss the declaratory relief and claims under California's Unfair
Competition Law.
Mr. Bumpus alleges, both on his own behalf and on behalf of other
similarly situated California residents, a collective action claim
against the Defendant on grounds that it has failed to comply with
the provisions of California Insurance Code Sections 10113.71
and/or 10113.72 ("the statutes") which pertain to the lapse or
termination of life insurance policies. He claims that although the
statutes were enacted effective Jan. 1, 2013, they should apply
retroactively and, in any event, should be extended to life
insurance policies remaining in effect on or after that time (for
example by way of renewal). The Court's jurisdiction is premised on
the Class Action Fairness Act pursuant to 28 U.S.C. Section
1332(d).
The Plaintiff's Complaint asserts four claims. The first two causes
of action seek declaratory relief under both federal law pursuant
to the Declaratory Judgment Act, 28 U.S.C. Sections 2201, et seq.,
and its state counterpart, California Code of Civil Procedure
Section 1060. The Third Cause of Action is for breach of contract;
the fourth and final claim alleges unfair competition under
California's Unfair Competition Law ("UCL").
In 2005, the Plaintiff purchased a term life insurance policy from
the Defendant. After making the required quarterly premium payment
for nearly 15 years, the Plaintiff's wife claims she inadvertently
failed to pay the premium due on Oct. 18, 2019. On Nov. 18, 2019,
the Defendant sent a notice to the Plaintiff that the policy had
lapsed for non-payment, 31 days after the premium had been due.
Although he subsequently applied to reinstate the policy, and
provided evidence of insurability as Defendant demanded, the
Plaintiff claimed he received no response and the policy had still
not been reinstated as of the time he filed the instant suit
against the Defendant on May 5, 2020.
The Plaintiff claims the termination of his policy was legally
ineffective because the Defendant failed to comply with termination
and lapse requirements for life insurance policies mandated by
state law. He specifically points to the provisions of the
statutes, which were enacted by the Legislature in 2012 and went
into effect as of Jan. 1, 2013.
Section 10113.71 requires that "each life insurance policy issued
or delivered in this state" contain "a grace period of not less
than 60 days from the premium due date," with a notice of pending
lapse and termination to be provided at least 30 days prior to the
effective date of termination for nonpayment of premium. In
addition, Section 10113.72 goes on to provide that an individual
life insurance policy like the one purchased by Plaintiff here will
be issued or delivered unless the applicant has been given the
opportunity to designate at least one other person to receive
notice of lapse or termination of a policy for failure to pay
required premiums. It specifies that a policy cannot be terminated
for nonpayment unless notice has been provided both to the policy
owner and to any person or persons so designated.
According to the Plaintiff, because these provisions contained no
grandfather provisions limiting their application to policies first
delivered after Jan. 1, 2013, they apply to all policies in
existence as of that date, including his policy issued in 2004. He
thus argues that because the Defendant failed to comply with the
requirements enumerated above, its cancellation of his policy was
void.
By Order dated Aug. 12, 2021, the Court granted the Defendants'
Motion to Stay, holding these proceedings in abeyance pending a
decision from the California Supreme Court in a case expected to
determine whether the 2013 amendments to the California Insurance
Code would apply retroactively to policies issued beforehand. On
Aug. 31, 2021, in McHugh v. Protective Life Insurance Co., 12 Cal.
5th 213 (2021), the court held that the statutes applied to all
policies in force on or after the January 2, 2013, effective date
of the statutes, and not just to policies issued after that time.
It stated unequivocally that absent compliance with the statute,
"no policy will lapse or be terminated for an unpaid premium."
Subsequently, the Ninth Circuit, relying on McHugh, found that if
an insurer failed to comply with those statutory requirements, a
policy could not lapse for nonpayment of premium after Jan. 1,
2013, even if the particular policy had been issued previously.
On Nov. 19, 2021, the Plaintiff moved to lift the Court's stay in
the wake of the decisions issued in McHugh and Thomas. That Motion
was unopposed and was granted on Jan. 27, 2022. n the meantime, the
Defendant already filed the Motion to Dismiss now before the Court
for adjudication. Irrespective of the decisions in McHugh and
Thomas, that Motion seeks to dismiss three of the four causes of
action asserted by the Plaintiff.
While not contesting the validity of the Plaintiff's breach of
contract claim, the Defendant's Motion argues that the declaratory
relief claims, which seek a judicial declaration that the statutes
at issue apply to all policies in force after the effective date of
the statutes in question, fail because the Plaintiff already has an
adequate remedy at law through his breach of contract claim, making
any additional declaratory relief request duplicative and therefore
subject to dismissal. It additionally claims that any unfair
competition claim is fatally flawed because the Plaintiff cannot
establish his entitlement to relief under either of the two
remedies afforded by the UCL, restitution or injunctive relief.
In his First and Second Causes of Action, the Plaintiff seeks a
"declaration or judgment that that the statutes applied as of
January 1, 2013 to the Defendant's California policies in force as
of or at any time after Jan. 1, 2013, including the Subject
Policy." As indicated, declaratory relief is requested both under
the federal Declaratory Judgment Act, 28 U.S.C. Sections 2201, et.
seq., and its state counterpart, California Code of Civil Procedure
Section 1060. The Defendant's argument for dismissal is predicated
on the argument that because the Plaintiff's claims will
necessarily be determined in the context of his breach of contract
cause of action, the declaratory relief causes of action are both
unnecessary and duplicative.
Judge England holds that obtaining relief as to the ongoing rights
and duties of the Plaintiff and the putative class would, as the
Complaint states, establish whether individuals were properly
designated to receive notices of pending lapse and termination, as
well as whether policies were legally in force and whether
beneficiaries were wrongfully deprived of benefits. Breach of
contract alone may not encompass those ongoing determinations to
the extent it focuses on breaches that have already occurred.
Moreover, if the facts establish that the Defendants did not breach
the contract but did breach their statutory duty to the Plaintiff
under Sections 10113.71 and 10113.72, declaratory relief to
establish that statutory duty serves as an alternative theory of
redress for the Plaintiff. For these reasons, the Defendant's
Motion to Dismiss the First and Second Causes of Action is
accordingly denied.
In addition to moving to dismiss the causes of action seeking
declaratory relief, the Defendant's Motion also takes aim at the
Plaintiff's Fourth Cause of Action, brought under California's UCL.
The Plaintiff alleges that the Defendant's practices in failing to
comply with the additional notice requirements imposed by the
statutes constitute unlawful practices proscribed by the UCL. The
Defendant, however, argues that the Plaintiff cannot maintain a UCL
claim because the only remedies available are restitution and
injunctive relief, and the Plaintiff can qualify for neither.
Judge England finds that the Plaintiff's UCL claim survives
pleadings scrutiny as to the availability of restitution as a
potential remedy. The Plaintiff alleges that he and members of the
putative class lost money as a result of the Defendant's practices
due both to such withheld benefits, un-refunded premiums, and
diminution in value of policies. Restitution permits a plaintiff to
demand return of monies thereby obtained through such practices.
He also finds that as the Central District noted in Steen v. Am.
Nat'l Ins., Co., such allegations that policies belonging to
plaintiffs and putative class members should remain in force
supports a plausible inference that the insurer could "continue to
disavow and repudiate policies without first complying with the
statutes." Particularly since the scope of injunctive relief should
be interpreted broadly to prevent future violations, this risk that
the Defendant will refuse to pay future claims by virtue of such
conduct suffices for purposes of establishing the Plaintiff's
entitlement to injunctive relief. Therefore, the Defendant's Motion
to Dismiss the Fourth Cause of Action, to the extent based upon the
argument that no standing to assert injunctive relief has been
demonstrated, also fails.
For all the reasons he stated, Judge England denies the Defendant's
Motion to Dismiss.
A full-text copy of the Court's Sept. 21, 2022 Memorandum & Order
is available at https://tinyurl.com/yc22wpd8 from Leagle.com.
VACO LLC: Hunter Sues to Recover Unpaid Wages
---------------------------------------------
Dexter A. Hunter, on behalf of himself and all others similarly
situated v. VACO LLC, a limited liability company; and DOES 1
through 100, Inclusive, Case No. 22STCV29059 (Cal. Super. Ct., Los
Angeles Cty., Sept. 7, 2022), is brought for recovery of unpaid
wages and penalties under California Labor Code, and Industrial
Welfare Commission Wage Order No. 4.
During the Plaintiff's employment with the Defendants, the
Plaintiff was provided inaccurate wage statements, in that the wage
statements issued to the Plaintiff and other non-exempt employees
were facially deficient in that they failed to list the correct
total hours worked and therefore, failed to comply with Labor Code.
Specifically, the wage statements issued by the Defendants
generally included a line item titled "total hours worked," which
reflected only the employee's regular hours worked regardless of
the total number of hours actually worked. Thus, for example, in
pay periods when the Plaintiff worked 40 regular hours and 5
overtime hours, his wage statement reported only 40 hours as the
Plaintiff's "total hours worked." The Plaintiff alleges that the
Defendants continue to issue wage statements to non-exempt
employees that include inaccurate representations of total hours
worked, says the complaint.
The Plaintiff was employed by the Defendants as a non-exempt
employee from January 2022 until March 2022.
The Defendants did (and do) business as a staffing agency.[BN]
The Plaintiff is represented by:
Tuvia Korobkin, Esq.
W. Zev Abramson, Esq.
Jack J. Gindi, Esq.
ABRAMSON LABOR GROUP
11846 Ventura Boulevard, Suite 100
Studio City, CA 91604
Phone: (213) 493-6300
Fax: (213) 723-2522
Email: tuvia@abramsonlabor.com
wza@abramsonlabor.com
jack@abramsonlabor.com
VANGUARD GROUP: Davidoff Files Suit in E.D. New York
----------------------------------------------------
A class action lawsuit has been filed against The Vanguard Group,
Inc. The case is styled as Boris Davidoff, Olga Davidoff, Leonard
Davidoff, Yuriy Davidoff, James Bruce, Vladimir Kats, on behalf of
themselves and others similarly situated v. The Vanguard Group,
Inc., Case No. 2:22-cv-05329-ENV-SIL (E.D.N.Y., Sept. 7, 2022).
The nature of suit is stated as E.R.I.S.A. Labor for Employee
Benefits.
The Vanguard Group, Inc. -- https://www.vanguard.com/ -- is an
American registered investment advisor based in Malvern,
Pennsylvania.[BN]
The Plaintiffs are represented by:
Chris Rykaczewski, I, Esq.
METROPOLITAN LEARNING INSTITUTE
9777 Queens Blvd., Ste. 9th Floor
Rego Park, NY 11374
Phone: (718) 897-0482
Email: rrex2012@gmail.com
VERINT SYSTEMS: CTI Litigation Parties Reach Settlement Agreement
-----------------------------------------------------------------
Verint Systems Inc. disclosed in its Form 10-Q filing for the
quarterly period ended July 31, 2022, filed with the Securities &
Exchange Commission on September 7, 2022, that on July 10, 2022,
parties to the CTI Litigation reached an agreement, subject to
district court approval, which provides, among other things, that
$16.0 million will be paid as compensation to the plaintiffs and
members of the class.
The company said, "In March 2009, one of our former employees, Ms.
Orit Deutsch, commenced legal actions in Israel against our former
primary Israeli subsidiary, Cognyte Technologies Ltd. (formerly
known as Verint Systems Limited or "VSL") (Case Number 4186/09) and
against our former affiliate CTI (Case Number 1335/09). Also, in
March 2009, a former employee of Comverse Limited (CTI's primary
Israeli subsidiary at the time), Ms. Roni Katriel, commenced
similar legal actions in Israel against Comverse Limited (Case
Number 3444/09). In these actions, the plaintiffs generally sought
to certify class action suits against the defendants on behalf of
current and former employees of VSL and Comverse Limited who had
been granted stock options in Verint and/or CTI and who were
allegedly damaged as a result of a suspension on option exercises
during an extended filing delay period that is discussed in our and
CTI's historical public filings. On June 7, 2012, the Tel Aviv
District Court, where the cases had been filed or transferred,
allowed the plaintiffs to consolidate and amend their complaints
against the three defendants: VSL, CTI, and Comverse Limited.
"On October 31, 2012, CTI distributed all of the outstanding shares
of common stock of Comverse, Inc., its principal operating
subsidiary and parent company of Comverse Limited, to CTI's
shareholders (the "Comverse Share Distribution"). In the period
leading up to the Comverse Share Distribution, CTI either sold or
transferred substantially all of its business operations and assets
(other than its equity ownership interests in Verint and in its
then-subsidiary, Comverse, Inc.) to Comverse, Inc. or to
unaffiliated third parties. As the result of these transactions,
Comverse, Inc. became an independent company and ceased to be
affiliated with CTI, and CTI ceased to have any material assets
other than its equity interests in Verint. Prior to the completion
of the Comverse Share Distribution, the plaintiffs sought to compel
CTI to set aside up to $150.0 million in assets to secure any
future judgment, but the District Court did not rule on this
motion. In February 2017, Mavenir Inc. became successor-in-interest
to Comverse, Inc.
"On February 4, 2013, Verint acquired the remaining CTI shell
company in a merger transaction (the "CTI Merger"). As a result of
the CTI Merger, Verint assumed certain rights and liabilities of
CTI, including any liability of CTI arising out of the foregoing
legal actions. However, under the terms of a Distribution Agreement
entered into in connection with the Comverse Share Distribution,
we, as successor to CTI, are entitled to indemnification from
Comverse, Inc. (now Mavenir) for any losses we may suffer in the
Company's capacity as successor to CTI related to the foregoing
legal actions.
"Following an unsuccessful mediation process, on August 28, 2016,
the District Court (i) denied the plaintiffs' motion to certify the
suit as a class action with respect to all claims relating to
Verint stock options, (ii) dismissed the motion to certify the suit
against VSL and Comverse Limited, and (iii) approved the
plaintiffs' motion to certify the suit as a class action against
CTI with respect to claims of current or former employees of
Comverse Limited (now part of Mavenir) or of VSL who held
unexercised CTI stock options at the time CTI suspended option
exercises. The court also ruled that the merits of the case would
be evaluated under New York law.
"As a result of this ruling (which excluded claims related to
Verint stock options from the case), one of the original plaintiffs
in the case, Ms. Deutsch, was replaced by a new representative
plaintiff, Mr. David Vaaknin. CTI appealed portions of the District
Court's ruling to the Israeli Supreme Court. On August 8, 2017, the
Israeli Supreme Court partially allowed CTI's appeal and ordered
the case to be returned to the District Court to determine whether
a cause of action exists under New York law based on the parties'
expert opinions.
"Following two unsuccessful rounds of mediation in mid to late 2018
and in mid-2019, the proceedings resumed. On April 16, 2020, the
District Court accepted plaintiffs' application to amend the motion
to certify a class action and set deadlines for filing amended
pleadings by the parties. CTI submitted a motion to appeal the
District Court's decision to the Israeli Supreme Court, as well as
a motion to stay the proceedings in the District Court pending the
resolution of the appeal.
"On July 6, 2020, the Israeli Supreme Court granted the motion for
a stay. On July 27, 2020, the plaintiffs filed their response on
the merits of the motion for leave to appeal. On December 15, 2021,
the Israeli Supreme Court rejected CTI's motion to appeal and the
proceedings in the District Court resumed.
"At the recommendation of the District Court, in June 2022, the
parties conducted another round of mediation in New York. On July
10, 2022, the parties reached an agreement to settle the matter on
terms set forth in a settlement agreement that was executed by all
parties and submitted a motion for approval of the settlement
agreement to the District Court.
"Under the terms of the settlement agreement, subject to full and
final waiver, Mavenir Inc. and/or Comverse, Inc. and/or Mavenir
Ltd. agreed to pay a total of $16.0 million (such amount to be paid
in three phases as set forth in the settlement agreement) as
compensation to the plaintiffs and members of the class. The
compensation amount is comprehensive, final and absolute and
includes within it all the amounts and expenses to be paid in
connection with the settlement agreement.
"Under the terms of an associated guaranty agreement, Verint has
guaranteed the payment of the compensation amount in the event it
is not paid by the primary obligors.
"As of July 31, 2022, we recorded a liability of $16.0 million,
$11.3 million of which is included within accrued expenses and
other current liabilities, and $4.7 million of which is included in
other liabilities, and an offsetting indemnification receivable of
$16.0 million, $11.3 million of which is included in prepaid
expenses and other current assets, and $4.7 million of which is
included in other assets on our condensed consolidated balance
sheets.
"There was no impact to our condensed consolidated statement of
operations. The settlement remains pending and contingent upon
District Court approval. Accordingly, there can be no assurance
that the matter will be settled on the terms set forth in the
settlement agreement or otherwise."
Verint Systems Inc. is a Huntington, New York-based company that
provides analytic solutions for communications, interception,
digital video security and surveillance, and enterprise business
intelligence.
VIRGINIA: Courts Tries to Rule Against Special Education Lawsuit
----------------------------------------------------------------
Linda Jacobson wrote in Disability Scoop that Virginia's courts
routinely rule against parents of students with disabilities who
sue to ensure their children are receiving an appropriate
education, according to a class action lawsuit filed in federal
court last week.
The suit names the Fairfax County Public Schools in northern
Virginia as well as the state department of education, which trains
and certifies hearing officers to review parent complaints. The
suit alleges the state maintains a list of "school-friendly hearing
officers" who are more likely to rule against families that
challenge district decisions about services for their children.
Trevor and Vivian Chaplick, parents of a Fairfax student with
autism, ADHD, and other "profound" disabilities, along with a
nonprofit they've created, filed the suit on behalf of all students
in the state who participated in due process proceedings since
2010. Virginia state Superintendent Jillian Balow and Fairfax
schools Superintendent Michelle Reid -- last year's national
superintendent of the year -- are also named as defendants.
"Due process is a parent's recourse if something goes wrong," said
Callie Oettinger, a Fairfax parent who runs a watchdog website
documenting special education complaints in the district. "What
happens is they lawyer up and they'll spend millions fighting
you."
The lawsuit comes as parents across the state are seeking
compensatory -- or make-up -- services due to school closures
during the pandemic. Under the Individuals with Disabilities
Education Act, districts are required to evaluate and provide
services to students if educators failed to follow a child's
individualized education program, or IEP. But the lawsuit claims
Virginia's system was rigged against parents long before the
pandemic.
According to the complaint, hearing officers ruled in favor of
northern Virginia families only three out of 395 times between 2010
and 2021. Statewide, there were just 13 out of 847 cases in which
hearing officers found districts at fault over that same 11-year
period, according to documents the Chaplicks obtained through
public records requests.
Twenty-two of the hearing officers, who act as judges in such
cases, have "been virtually unchanged over the last two decades,
which represents two generations of disabled children seeking a
better education under the IDEA," the complaint said. "Despite (or
because of) the incredibly one-sided outcomes from these hearing
officers, the VDOE continued to recertify these same 22 hearing
officers."
Because of their son's severe needs and aggressive behavior, the
Chaplinks asked the district to place their son in a residential
school. The district refused, and when the parents prepared to file
for due process, a district social worker told them they would
lose. They thought the staff member was exaggerating -- that is
until they collected the data.
Charles Pyle, a spokesman for the Virginia Department of Education,
said officials would not comment on pending litigation.
"The department is committed to ensuring that students with
disabilities receive all services and supports that they are
entitled to under federal and state law," he said.
Julie Moult, a spokeswoman for the Fairfax district, said officials
had not been served with the lawsuit and were not able to comment.
Reid, who is new to Fairfax this year, previously served as
superintendent of the Northshore School District near Seattle, the
first in the nation to close a school because of COVID. The
district, with about 23,000 students, is a fraction of the size of
Fairfax, which has an enrollment of roughly 180,000.
The case is the latest probe into whether Fairfax -- one of the
nation's largest districts -- is denying the civil rights of
students with disabilities. In January 2021, in the final days of
the Trump administration, the U.S. Department of Education's Office
for Civil Rights opened an investigation into the district's
handling of services for students with disabilities during school
closures.
Kimberly Richie, who led the civil rights division at the time,
took action after seeing news reports of schools opening for child
care, at the parents' cost -- but not for students with IEPs. Now
Richie is a deputy superintendent at the Virginia education
department, whose division includes special education. Oettinger
sees that as a good sign.
"These were people who were trying to actually do something before
they left office," she said.
Prior to the pandemic, parents sued the district for its use of
physical restraint and seclusion of students with disabilities. In
December 2021, it reached an agreement with the plaintiffs and
disability rights organizations to ban the practice.
The new lawsuit includes the names and decisions of hearing
officers, in northern Virginia and statewide. One is Frank
Aschmann, an Alexandria, Va., attorney who has ruled in favor of
parents in one out of 62 cases over a 20-year period.
Debra Tisler was one of those 61 parents he ruled against. With a
severely dyslexic son, she began asking the Fairfax district to
evaluate him in fourth grade, but she said they kept putting her
off for a year -- even though she had been a special education
teacher in the district from 1997 to 2014.
"That's how hard it is," she said, referring to efforts to get her
son the literacy instruction that experts recommended. She taught
him herself, but had to hire private speech and language tutors.
"By 6th grade, he had hit a complete wall," she added.
She filed for due process in 2019, arguing that the district would
not give her access to her son's educational records so she could
prepare a case and that they had failed to provide him with an
adequate literacy program.
Aschmann ruled against the family on multiple points, including
refusing to compel the district to turn over records and stating
that the student's struggles in his Spanish class did not
constitute evidence of the district's failure to implement his IEP.
Aschmann did not return a call seeking comment.
"They are ruining children's lives, all they care about is how much
money they get," said Tisler, who now volunteers as an advocate for
other families and serves as an expert witness in due process
hearings.
In January 2020, an invoice shows Fairfax paid Aschmann $12,400 for
the 99 hours he spent on Tisler's son's case. Parents who lose to
their district, she said, can file in state or federal court.
States tend to transfer the cases to federal courts, but most
families, she said, don't have the financial means to pursue cases
that far. "You just get bounced around," she said. [GN]
WALTER KIDDE: North Carolina Court Narrows Claims in Taylor Suit
----------------------------------------------------------------
In the case, JANET TAYLOR and JAMES NEWLANDS, individually and on
behalf of all others similarly situated, Plaintiffs v. WALTER KIDDE
PORTABLE EQUIPMENT, INC., Defendant, Case No. 1:21CV839 (M.D.N.C.),
Judge William L. Osteen, Jr., of the U.S. District Court for the
Middle District of North Carolina grants in part and denies in part
the Defendant's Motion to Dismiss Plaintiffs' First Amended
Class-Action Complaint.
The Defendant is a corporation headquartered in Mebane, North
Carolina, that manufactures and distributes fire extinguishers. In
a variety of different marketing materials, it has claimed that its
fire extinguishers are high quality. Contrary to those
representations, many of its fire extinguishers had a significant
defect "involving the tendency of their nozzles to frequently
become detached, clogged, or require excessive force to discharge
causing a failure to activate during a fire emergency."
The Defendant knew of this defect as early as 2005 but did not
fully disclose it to federal regulators until August 2017. In
November 2017, it issued a comprehensive recall for fire
extinguishers containing the defect. The recall included nearly 38
million units, among them H110G models. The recall program is
flawed because many consumers have (1) not heard of it, (2) were
unable to establish contact with the Defendant, (3) experienced
delays in securing replacement products, or (4) received inadequate
replacements.
Ms. Taylor lives in California and in 2016 purchased one of the
Defendant's H110G models from Walmart. She did not hear of the
recall until sometime in 2021. In the spring of 2021, a fire broke
out in her garage. She followed the instructions of how to use her
H110G fire extinguisher, but when she squeezed the handle, only a
small drizzle of spray came out. She eventually extinguished the
fire by other means and does not allege the fire caused any
physical injury or property damage.
Plaintiff Newlands lives in Florida and in 2012 purchased two H110G
fire extinguishers from Lowe's. They were defective. He did not
hear of the recall until sometime in 2021.
The Plaintiffs filed their original complaint in October 2021. The
Defendant moved to dismiss the complaint. The Plaintiffs then,
pursuant to Federal Rule of Civil Procedure 15(a)(1), filed their
First Amended Class Action Complaint ("FAC").
The FAC seeks class certification and asserts 19 counts: Count I -
California Consumers Legal Remedies Act ("CLRA"), Count II -
California Unfair Competition Law, Count III - Implied Warranty
under California Song-Beverly Act and California Commercial Code,
Count IV - California False Advertising Law, Count V - Florida
Deceptive and Unfair Trade Practices Act, Count VI - Florida
Implied Warranty, Count VII - North Carolina Unfair and Deceptive
Trade Practices Act ("NCUDTPA"), Count VIII - North Carolina
Implied Warranty, Count IX - Fraud, Count X - Constructive Fraud,
Count XI - Fraudulent Inducement, Count XII - Money Had and
Received, Count XIII - Fraudulent Concealment or Omission, Count
XIV - Fraudulent Misrepresentation, Count XV - Negligent
Misrepresentation, Count XVI - Quasi-Contract/Unjust Enrichment,
Count XVII - Negligent Failure to Warn or to Instruct XVIII -
Negligent Design Defect, and Count XIX - Magnuson-Moss Warranty Act
("MMWA").
The California statutory claims, Counts I-IV, are advanced by
Taylor. The Florida statutory claims, Counts V-VI, are advanced by
Newlands. The North Carolina statutory claims, Counts VII-VIII, are
advanced by both Plaintiffs, as are the common law claims, Counts
IX-XVII, and the federal law claim, Count XIX. Most of the common
law claims are pled alternatively under North Carolina law and the
laws of the state where each Plaintiff lives or purchased their
fire extinguishers. Two of the common law claims are pled under
both North Carolina law and the laws of the state where each
Plaintiff lives.
The Defendant moved to dismiss the FAC, and filed a brief in
support. The Plaintiffs responded in opposition, and the Defendant
replied.
The Defendant's first argument is that because the Plaintiffs lack
Article III standing, their counts should be dismissed for lack of
subject matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1). To establish standing under Article III of the
Constitution, a plaintiff must show: "(1) an injury in fact; (2) a
sufficient causal connection between the injury and the conduct
complained of; and (3) a likelihood that the injury will be
redressed by a favorable decision.
Judge Osteen opines that the Plaintiffs have sufficiently alleged
that their economic injuries were caused, inter alia, by the
Defendant's failure to properly notify them of the recall. This
establishes causation and defeats the Defendant's Article III
standing challenge. The Defendant's motion, insofar as it seeks
dismissal pursuant to Rule 12(b)(1) for lack of subject matter
jurisdiction, will thus be denied.
The Defendant argues that all of the Plaintiffs' North Carolina law
claims -- including the common law counts alternatively pled under
North Carolina law -- should be dismissed because North Carolina
law does not apply under the relevant choice-of-law rules. The
Plaintiff responds that this argument is premature because it
raises fact-bound choice-of-law issues that should await completion
of discovery.
Judge Osteen finds that the place of injury is not so open to
debate; rather, application of the lex loci test yields a clear
answer. Accordingly, the lex loci rule applies to not only the
Plaintiffs' common law counts, but also to their NCUDTPA
count—Count VII. Applying that rule requires that Count VII be
dismissed in its entirety because the Plaintiffs' injuries occurred
in California and Florida, respectively, and therefore those
states' laws apply. Applying the lex loci rule to the Plaintiffs'
North Carolina common law claims, contained in Counts IX-XVIII,
requires the same result. Those counts will be dismissed insofar as
they assert causes of action under North Carolina law.
Judge Osteen further finds that California and Florida law must
apply. Those are the states where the sale was consummated for
Plaintiffs' respective fire extinguishers. Most importantly, those
states are also the place of distribution. Moreover, California and
Florida are also where the Plaintiffs' injuries occurred, and for
Taylor, California was where she (attempted) to use her defective
fire extinguisher. Hence, California and Florida law therefore
apply to the Plaintiffs' implied warranty claims, and Count VIII,
the Plaintiffs' North Carolina implied warranty claim, will be
dismissed.
The Defendant argues that several counts should be dismissed as
time barred, and that this statute of limitations defense is
"apparent on the face of the complaint."
Judge Osteen finds that this is not one of those rare cases where
the facts sufficient to rule on the Defendant's statute of
limitations defense clearly appear on the face of the Plaintiffs'
FAC. In response to the Defendant's statute of limitations defense,
the Plaintiffs assert that the fraudulent concealment doctrine and
the discovery rule render their claims timely. There are facts
absent from the FAC's face that are necessary to determine whether
fraudulent concealment and/or the discovery rule apply to prevent
the Plaintiffs' claims from being time-barred.
Whichever jurisdiction's statute of limitations, claim accrual, and
tolling rules apply, more face development is needed to evaluate
the Plaintiffs' factual and legal contention that even "through the
exercise of reasonable diligence" they "could not reasonably
discover the Fire Extinguisher Defect prior to 2021." This
contention will be better adjudicated on a more developed record.
Therefore, at this early juncture, where the necessary facts have
not been fully established, Judge Osteen defers ruling on the
timeliness of the Plaintiffs' claims.
The Defendant argues that 13 of the Plaintiffs' claims must be
dismissed for failure to satisfy Federal Rule of Civil Procedure
9(b)'s particularity requirement. It argues that these claims are
based on affirmative misrepresentations but do not "state with
particularity the circumstances constituting fraud or mistake."
They further insist that the only misrepresentations the Plaintiffs
pleaded "are nonactionable puffery." The Plaintiffs do not dispute
that Rule 9(b) applies to any of the thirteen claims; instead, they
insist they have pled the claims with particularity and dispute the
Defendant's puffery assertion.
Judge Osteen finds that the FAC states that "numerous" "materials
the Plaintiffs reviewed and relied upon prior to purchase are
identified below and include the labeling, packaging, and marketing
materials for the H110G fire extinguisher." The FAC then proceeds
to list in 14 numbered paragraphs a series of marketing materials
and statements made by the Defendant. This approach, according to
Judge Osteen, does not satisfy Rule 9(b)'s particularity
requirement. The Plaintiffs' allegations do "not state which of the
named plaintiffs claims to have relied on each statement or whether
any plaintiff even relied on a given misstatement at all." He will
therefore dismiss all 13 of the Plaintiffs' counts to which it is
uncontested that Rule 9(b) applies. Those are Counts I-II, IV-V,
VII, IX-XV, and XVI.
The Defendant then argues that the Plaintiffs' failure to warn and
negligent design defect claims should be dismissed under the
economic-loss rule. Judge Osteen opines that there are no
allegations that either Plaintiff suffered physical harm. The only
allegations of physical injury or property damage concern other
individuals -- not the named Plaintiffs. The FAC never alleges that
Newlands attempted to use his fire extinguisher, let alone that it
caused him physical injury or damaged his property. Taylor alleges
more, but still no physical injury. She alleges that her fire
extinguisher failed when she attempted to use it to put out a fire
in her garage. But eventually, the fire was put out by other
means, and the FAC conspicuously fails to allege the fire caused
any physical damage to anyone or anything. Therefore, Judge Osteen
will dismiss the Plaintiffs' negligent failure-to-warn and design
defect counts, Counts XVII-XVIII.
The Defendant argues that the Plaintiffs' California and Florida
Uniform Commercial Code implied warranty claims should be dismissed
because neither Plaintiff alleges vertical privity, and the
third-party beneficiary exception is inapplicable. The Plaintiffs
disagree, arguing that "the weight of authority supports the
third-party beneficiary exception."
At this juncture, Judge Osteen declines to definitively conclude
which line of cases in Florida and California is more persuasive.
That is because this argument is made pursuant to Rule 12(b)(6),
meaning "every doubt is resolved in the pleader's favor." She will
therefore, at least at this time, find that the Plaintiffs'
third-party beneficiary theory may proceed. Additionally, despite
the Defendant's protestations to the contrary, the Plaintiffs have
pleaded sufficient facts to invoke the exception.
Moreover, the FAC makes allegations regarding "the end-user" or
"ultimate consumers of the Fire Extinguishers," that are similar to
allegations made in cases where courts have found the third-party
beneficiary exception adequately pled under Florida law. Therefore,
Judge Osteen declines to dismiss the Plaintiffs' UCC implied
warranty claims on privity grounds.
The Defendant argues that Plaintiff Taylor's CLRA and California
implied warranty count, as well as the Plaintiffs' MMWA count,
should be dismissed for failure to provide the required notice and
opportunity to cure. The Plaintiffs respond that these claims
should not be dismissed for lack of notice because their counsel
sent the Defendant a demand letter in February 2021.
Judge Osteen holds that lack of notice provides additional grounds
to dismiss the Plaintiff Taylor's CLRA claim insofar as that claim
seeks damages. However, to the extent the CLRA claim seeks
injunctive relief, lack of notice does not provide grounds for
dismissal because such relief falls outside of the CLRA's pre-suit
notice requirement. Also, Taylor's discovery of the defect five
years after purchasing her extinguisher does not render the defect
patent because "in the case of a latent defect, a product is
rendered unmerchantable, and the warranty of merchantability is
breached, by the existence of the unseen defect, not by its
subsequent discovery."
The Defendant next argues that "the Court lacks subject-matter
jurisdiction over the Plaintiffs' MMWA claims" because the latter
have failed to meet the statute's numerosity and
amount-in-controversy requirements.
Judge Osteen will not foreclose CAFA as an avenue for the
Plaintiffs to avoid MMWA's numerosity requirement. Additionally,
the Plaintiffs have stated sufficient facts to allege that they met
CAFA's amount in controversy requirement. The aggregate value of
the claims of each person in the proposed class allegedly exceed $5
million because this proposed class action concerns "sale of over
40 million plastic handle fire extinguishers" "sold at a price
point of $12 to $200." Thus, that the Plaintiffs have failed to
meet MMWA's requirements does not deprive the Court of subject
matter jurisdiction because they have met CAFA's requirements,
which provides an alternate jurisdictional basis.
In summary, Judge Osteen is dismissing all of the Plaintiffs'
claims except for Taylor's implied warranty Song-Beverly Act claim
(Count III), Newland's Florida implied warranty claim (Count VI),
and their MMWA claim (Count XIX). The Plaintiffs may proceed on
these three remaining claims. All other claims will be dismissed.
The dismissed claims will be dismissed without prejudice. Although
in the Plaintiffs' response they request "leave to replead" if
certain claims are dismissed, those requests are denied without
prejudice.
For the reasons he stated, Judge Osteen grants in part and denies
in part the Defendant's Motion to Dismiss Plaintiffs' First Amended
Class-Action Complaint. The motion is granted as to Counts I-II,
IV-V, and VII-XVIII, which are all hereby dismissed without
prejudice. The motion is also granted as to Count III, insofar as
it asserts a claim under California Commercial Code Section 2314,
but denied to the extent it asserts a claim under the Song-Beverly
Act. The motion is fully denied as to Counts VI and XIX.
The Defendant's Motion to Dismiss Plaintiffs' Class-Action
Complaint is denied as moot.
A full-text copy of the Court's Sept. 23, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/y57b87kk from
Leagle.com.
WASHINGTON: $2.15-Mil. in Attorneys' Fees Awarded in D.S. v. DCYF
-----------------------------------------------------------------
In the case, D.S.; D.Y. by and through his next friend JULIE
KELLOGG-MORTENSEN; H.A. by and through his next friend KRISTEN
BISHOPP; and DISABILITY RIGHTS WASHINGTON, a nonprofit membership
organization for the federally mandated Protection and Advocacy
Systems, Plaintiffs v. WASHINGTON STATE DEPARTMENT OF CHILDREN,
YOUTH, AND FAMILIES; and ROSS HUNTER, in his official capacity as
Secretary of the Washington State Department of Children, Youth,
and Families, Defendants, Case No. 2:21-cv-00113-BJR (W.D. Wash.),
Judge Barbara Jacobs Rothstein of the U.S. District Court for the
Western District of Washington, Seattle, grants the Plaintiffs'
Unopposed Motion for Order Approving Attorneys' Fees and Costs
Following Mediation.
The Plaintiffs filed the class action lawsuit on Jan. 28, 2021,
alleging that they and a class of foster children with disabilities
were being harmed by the Defendants' failure to correct systemic
deficiencies in Washington State's child welfare system. They
sought declaratory and injunctive relief, alleging that the
Defendants' failures violate the rights of foster children with
disabilities under the United States Constitution; Title II of the
Americans with Disabilities Act, 42 U.S.C. Section 12131 et seq.;
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Section
794; and the Adoption Assistance and Child Welfare Act of 1980, 42
U.S.C. Sections 621 et seq., 670 et seq.
On June 29, 2021, the Court granted in part the Plaintiffs' motion
for a preliminary injunction, which required the Defendants to
address practices for children in "placement exceptions," including
the use of hotel and government offices. The Plaintiffs' counsel
subsequently negotiated with the Defendants to stipulate to the
definition of a class, which was certified on Sept. 22, 2021.
On June 15, 2021, the parties began engaging in mediation. Over the
course of the next year, they met over a dozen times and
continuously exchanged numerous written proposals and settlement
drafts, while also engaging in discovery. These efforts resulted in
the Settlement Agreement, which was executed on June 6, 2022, and
was granted preliminary approval by the Court on June 24, 2022. The
Settlement Agreement provides for a comprehensive array of remedies
to expand placement options and improve practices to better serve
the complex and intersectional needs of the Class and their
families.
The Settlement Agreement itself affirms "an agreement that
attorneys' fees, costs, and expenses will be paid to the
Plaintiffs' Counsel for the litigation, mediation, and
post-settlement monitoring through the date Defendants' obligations
under this Agreement terminate." After the parties negotiated and
submitted their Settlement Agreement for preliminary approval, they
mediated on June 21, 2022, and reached an agreement for the
Defendants to pay the Plaintiffs $2.15 million for their reasonable
attorneys' fees and costs from case inception to the date the Court
enters final approval on the Settlement Agreement. The Plaintiffs
represent that their actual attorneys' fees and costs, after the
exercise of billing judgment to remove any excess, redundant, or
unreasonably duplicative time, and applying a lodestar, is at least
approximately $2,601,434.30, and their expenses are $19,258.27 as
of July 20, 2022.
The Plaintiffs have filed an unopposed motion seeking approval of
the mediated total amount of $2.15 million attorneys' fees and
costs. They submit with their motion detailed time logs and
declarations of their counsel, documentation to support their
billing rates, and records of necessary litigation expenditures.
The Plaintiffs are the prevailing party and are entitled to their
reasonable attorneys' fees and costs. They represent the amount of
time expended, hourly rates requested, and reasonable costs for the
covered period results in a potential lodestar of $2,620,692,57.
The $2.15 million agreed fee award thus represents approximately an
18% reduction in the lodestar and costs that might otherwise be
recoverable by the Plaintiffs' counsel.
Given the scope and complexity of this litigation, the amount of
time expended and documented in the course of representing the
Plaintiffs in the matter, the discovery undertaken by the
Plaintiffs, the hourly rates the Plaintiffs' counsel have
requested, the costs the Plaintiffs' counsel have incurred and
documented, and the favorable results achieved, Judge Rothstein
finds that the stipulated $2.15 million attorneys' fees and costs
award is fair and reasonable in this matter.
On Aug. 12, 2022, James and Shaylee Medicraft filed objections to
the Settlement Agreement on behalf of their children. Their
objections point to certain signs of collusion between the class
counsel and the defendants in reaching a settlement agreement, laid
out in In re Bluetooth Headset Product Liability Litigation, 654
F.3d 935 (9th Cir. 2011), that the Medicrafts suggest are present
in the case. Specifically, according to the Medicrafts, (1) "the
class received no monetary distribution but class counsel are amply
rewarded"; (2) "the parties negotiated a 'clear sailing'
arrangement providing for the payment of attorneys' fees separate
and apart from class funds"; and (3) "the parties arranged for fees
not awarded to revert to defendants rather than be added to the
class fund."
Judge Rothstein finds that none of these Bluetooth factors are
present or otherwise suggest collusion. As to the first Bluetooth
factor, the Plaintiffs' lawsuit never sought damages, but instead
pursued only injunctive relief of the sort contemplated by the
Settlement Agreement. As to the second factor, the Settlement
Agreement contained no agreed amount for attorneys' fees that
Defendants promised not to challenge. Finally, the third Bluetooth
factor concerning a "reverter" clause does not apply to a
settlement, as here, for injunctive relief. For these reasons, the
Medicrafts' objections to the Plaintiffs' attorneys' fees lack
merit.
Absent any meritorious objection to the stipulated $2.15 million
attorneys' fees and costs award, and finding it to be fair and
reasonable, Judge Rothstein approves the award. Pursuant to Rule
23(h) of the Federal Rules of Civil Procedure and 42 U.S.C. Section
1988, she grants the Plaintiffs' Unopposed Motion for Order
Approving Attorneys' Fees and Costs Following Mediation and
approves the parties' agreed upon attorneys' fees and costs award
of $2.15 million to the Plaintiffs. In accordance with their
agreement, the Defendants will pay $2.15 million to the Plaintiffs'
counsel within 30 days following the entry of the Order.
A full-text copy of the Court's Sept. 21, 2022 Order is available
at https://tinyurl.com/2hxs5afa from Leagle.com.
WELLDYNERX LLC: Perkins Files Suit in M.D. Florida
--------------------------------------------------
A class action lawsuit has been filed against Welldynerx, LLC. The
case is styled as Ernest Perkins, on behalf of himself and all
others similarly situated v. Welldynerx, LLC, Case No.
8:22-cv-02051-TPB-AEP (M.D. Fla., Sept. 6, 2022).
The nature of suit is stated as Other Contract.
WellDyneRx, LLC -- https://welldyne.com/ -- is a pharmacy benefit
manager based in Lakeland, Florida..[BN]
The Plaintiff is represented by:
Rachel Elizabeth Kaufman, Esq.
KAUFMAN P.A.
400 NW 26th Street
Miami, FL 33127
Phone: (305) 773-6641
Email: rachel@kaufmanpa.com
- and -
Avi Robert Kaufman, Esq.
KAUFMAN P.A.
237 S Dixie Hwy, 4th Floor
Coral Gables, FL 33133
Phone: (305) 469-5881
Email: kaufman@kaufmanpa.com
WEST WIND: Fails to Pay Proper Wages, Buck Suit Alleges
-------------------------------------------------------
DARRELL BUCK; SHAMUS WATSON; and WILLIAM CATLETT, individually and
on behalf of all others similarly situated, Plaintiffs v. WEST WIND
AND ASSOCIATES, INC.; and MARCK ECCLESTON, Defendants, Case No.
2:22-cv-2153-PKH (W.D. Ark., Sept. 23, 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.
The Plaintiffs were employed by the Defendants as laborers.
WEST WIND AND ASSOCIATES, INC. is engaged in the plastic welding
repair business. [BN]
The Plaintiffs are represented by:
William Patrik Wilson, Esq.
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
10800 Financial Centre Pkwy, Suite 510
Little Rock, ARK 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
Email: patrick@sanfordlawfirm.com
josh@sanfordlawfirm.com
WEXFORD HEALTH: Surles Sues to Recover Unpaid Overtime Wages
------------------------------------------------------------
Lashanwda Surles, individually and for others similarly situated v.
WEXFORD HEALTH SOURCES, INC., Case No. 2:22-cv-01376-DSC (W.D. Pa.,
Sept. 26, 2022), is brought to recover unpaid overtime wages and
other damages from the Defendant under the Fair Labor Standards
Act.
Like many companies across the United States, Wexford Health
Sources, Inc. (Wexford Health or Defendant) and its timekeeping and
payroll systems were affected by the hack of Kronos in late 2021.
That hack led to problems in timekeeping and payroll across the
Wexford Health organization. As a result, the Defendant's
non-exempt workers did not timely receive their agreed wages for
hours worked. As a result, the Defendant's workers who were not
exempt from overtime under federal and state law were not paid for
all hours worked and/or were not paid their proper overtime premium
for all overtime hours worked after the onset of the Kronos hack.
The Defendant could easily have implemented a system to accurately
record time and properly pay non-exempt employees until its issues
related to the hack were resolved. But the Defendant did not do so.
Instead, the Defendant used prior pay periods and/or reduced
payroll estimates to avoid paying wages and proper overtime to
these non-exempt hourly and salaried employees. The Defendant
pushed the cost of the Kronos hack onto the most vulnerable people
in its workforce and shifted the economic burden of the Kronos hack
onto its frontline workers who rely on the full and timely payment
of their wages to make ends meet. The Defendant's failure to timely
pay proper wages, including overtime, for all hours worked to the
Plaintiff and other workers like her violates the FLSA, says the
complaint.
The Plaintiff was an hourly officer worker for Wexford Health.
Wexford Health is a healthcare services company that contracts with
governmental entities to provide healthcare services.[BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Carl A. Fitz, Esq.
Alyssa White, Esq.
JOSEPHSON DUNLAP LAW FIRM
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Phone: 713-352-1100
Facsimile: 713-352-3300
Email: mjosephson@mybackwages.com
adunlap@mybackwages.com
cfitz@mybackwages.com
awhite@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
11 Greenway Plaza, Suite 3025
Houston, TX 77046
Phone: (713) 877-8788
Facsimile: (713) 877-8065
Email: rburch@brucknerburch.com
- and -
Joshua P. Geist, Esq.
William F. Goodrich, Esq.
GOODRICH & GEIST PC
3634 California Ave.
Pittsburgh, PA 15212
Phone: 412-766-1455
Facsimile: 412-766-0300
Email: josh@goodrichandgeist.com
bill@goodrichandgeist.com
WIND YOUTH SERVICES: Billings Files Suit in Cal. Super. Ct.
-----------------------------------------------------------
A class action lawsuit has been filed against Wind Youth Services
Inc., et al. The case is styled as Shanica Billings, on behalf of
all others similarly situated v. Wind Youth Services Inc., Wind
Youth Services, Goodwill Industries of Sacramento Valley & Northern
Nevada Inc., Does 1–10, Case No. 34-2022-00327068-CU-OE-GDS (Cal.
Super. Ct., Sacramento Cty., Sept. 21, 2022).
The case type is stated as "Other Employment – Civil Unlimited."
Wind Youth Services -- https://www.windyouth.org/ -- provides a
safe space for homeless youth to gain independence through a wide
variety of support and services.[BN]
The Plaintiff is represented by:
Kane Moon, Esq.
MOON & YANG, APC
1055 W 7th St., Ste. 1880
Los Angeles, CA 90017-2529
Phone: 213-232-3128
Fax: 213-232-3125
Email: kane.moon@moonyanglaw.com
YATSEN HOLDING: Maeshiro Files Securities Class Suit in N.Y.
------------------------------------------------------------
NANCY MAESHIRO, individually and on behalf of all others similarly
situated, Plaintiff v. YATSEN HOLDING LIMITED, JINFENG HUANG, YUWEN
CHEN, JIANHUA LYU, DONGHAO YANG, SIDNEY XUANDE HUANG, BONNIE YI
ZHANG, COLLEEN A. DE VRIES, COGENCY GLOBAL INC., HILLHOUSE CAPITAL,
GOLDMAN SACHS (ASIA) L.L.C., MORGAN STANLEY & CO. LLC, CHINA
INTERNATIONAL CAPITAL CORPORATION HONG KONG SECURITIES LIMITED,
CHINA RENAISSANCE SECURITIES (HONG KONG) LIMITED, FUTU INC., and
TIGER BROKERS (NZ) LIMITED, Defendants, Case No. 1:22-cv-08165
(S.D.N.Y., Sept. 23, 2022) is a federal securities class action
brought by the Plaintiff under the Securities Exchange Act of 1934
and the U.S. Securities and Exchange Commission Rule 10b-5
promulgated thereunder, on behalf of a class consisting of all
persons and entities, other than Defendants and their affiliates,
who purchased Yatsen Holding Limited American Depository Shares
between November 19, 2020 and March 10, 2022, inclusive, and who
were damaged thereby.
According to the complaint, throughout the Class Period, Defendants
misled investors into believing that Yatsen's two largest and
historically most significant brands, Perfect Diary and Little
Ondine, were thriving, thereby driving Yatsen's "healthy" top-line
growth at the time of its IPO and quarter after quarter thereafter.
In truth, however, cosmetic and skincare sales of Perfect Diary and
Little Ondine products were declining in the period leading up to
(and including at the time of) the IPO, and continued to decline
throughout 2021, says the suit.
During the Class Period, the Defendants disseminated or approved
false statements, which they knew, or deliberately disregarded,
were materially misleading in that they contained material
misrepresentations and failed to disclose material facts necessary
in order to make the statements made, in light of the circumstances
under which they were made, not misleading. As a result of the
dissemination of the materially false and misleading information
and failure to disclose material facts as set forth above, the
market price of Yatsen's ADS was artificially inflated, the suit
alleges.
The Plaintiff purchased Yatsen ADS during the Class Period.
Yatsen Holding Limited operates in the fast-growing China cosmetics
market.[BN]
The Plaintiff is represented by:
Thomas L. Laughlin, IV, Esq.
Jonathan M. Zimmerman, Esq.
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
- and -
Brian J. Schall, Esq.
THE SCHALL LAW FIRM
2049 Century Park East, Suite 2460
Los Angeles, CA 90067
Telephone: (310) 301-3335
Facsimile: (310) 388-0192
E-mail: brian@schallfirm.com
YELP INC: $22.25MM Class Deal to be Heard on Jan. 19
----------------------------------------------------
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
JONATHAN DAVIS, and ROEI AZAR,
on Behalf of All Others Similarly Situated,
Plaintiffs,
v.
YELP, INC., JEREMY STOPPELMAN,
LANNY BAKER, and JED NACHMAN,
Defendants.
Case No. 3:18-cv-00400-EMC
Honorable Edward M. Chen
SUMMARY NOTICE OF (I) PROPOSED SETTLEMENT AND PLAN OF ALLOCATION;
(II) SETTLEMENT HEARING; AND (III) MOTION FOR AN AWARD OF
ATTORNEYS' FEES AND REIMBURSEMENT OF LITIGATION EXPENSES
This notice is for all persons who, during the period between
February 10, 2017 and May 9, 2017, inclusive, purchased or
otherwise acquired the common stock of Yelp Inc., and were damaged
thereby (the "Class"):
PLEASE READ THIS NOTICE CAREFULLY, YOUR RIGHTS WILL BE AFFECTED BY
A CLASS ACTION LAWSUIT PENDING IN THIS COURT.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the United States District Court
for the Northern District of California, that the Lead Plaintiff in
the above-captioned litigation (the "Action") has reached a
proposed settlement of the Action for $22,250,000 in cash (the
"Settlement"), that, if approved, will resolve all claims in the
Action.
A hearing will be held on January 19, 2023 at 1:30 p.m., before the
Honorable Edward M. Chen at the United States District Court for
the Northern District of California, United States Courthouse,
Courtroom 5, 17th Floor, 450 Golden Gate Avenue, San Francisco, CA
94102, to determine (i) whether the proposed Settlement should be
approved as fair, reasonable, and adequate; (ii) whether the Action
should be dismissed with prejudice against Defendants, and the
Releases specified and described in the Stipulation and Agreement
of Settlement dated April 14, 2022 (and in the Notice of (I)
Proposed Settlement and Plan of Allocation; (II) Settlement
Hearing; and (III) Motion for an Award of Attorneys' Fees and
Reimbursement of Litigation Expenses (the "Notice")) should be
granted; (iii) whether the proposed Plan of Allocation should be
approved as fair and reasonable; and (iv) whether Lead Counsel's
application for an award of attorneys' fees and reimbursement of
expenses should be approved.
If you are a member of the Class, your rights will be affected by
the pending Action and the Settlement, and you may be entitled to
share in the Settlement Fund. If you have not yet received the
Notice and Claim Form, you may obtain copies of these documents by
contacting the Claims Administrator at Azar v. Yelp, Inc., c/o JND
Legal Administration, P.O. Box 91030, Seattle, WA 98111,
1-888-964-0696. Copies of the Notice and Claim Form can also be
downloaded from the website maintained by the Claims Administrator,
www.YelpSecuritiesLitigation.com.
If you are a member of the Class, in order to be eligible to
receive a payment under the proposed Settlement, you must submit a
Claim Form online or postmarked no later than December 27, 2022.
If you are a Class Member and do not submit a proper Claim Form,
you will not be eligible to share in the distribution of the net
proceeds of the Settlement but you will nevertheless be bound by
any judgments or orders entered by the Court in the Action.
In June 2020, the Court ordered Lead Counsel to facilitate the
mailing of (i) the Notice of Pendency of Class Action, and (ii)
Request for Exclusion From the Class form (collectively, "Certified
Class Notice") to potential Class Members. The Certified Class
Notice provided members of the Class with an opportunity to request
exclusion from the Class. If you previously submitted a request
for exclusion and you wish to remain excluded, no further action is
required and you will be excluded from the Class. Persons who
previously submitted a request for exclusion may, however, opt back
into the Class for the purpose of being eligible to receive a
payment from the Settlement. In order to opt back into the Class,
you must submit a request to do so in writing such that it is
received no later than January 9, 2023, in accordance with the
instructions set forth in the Notice. Any Person who previously
submitted a request for exclusion and timely opts back into the
Class shall be afforded all the rights and obligations of a Class
Member. If you previously submitted a request for exclusion from
the Class and do not opt back into the Class in accordance with the
instructions set forth in the Notice, you will not be bound by any
judgments or orders entered by the Court in the Action and you will
not be eligible to share in the Settlement. Members of the Class
do not have a second opportunity to request exclusion from the
Class.
Any objections to the proposed Settlement, the proposed Plan of
Allocation, or Lead Counsel's motion for attorneys' fees and
reimbursement of expenses, must be filed with the Court and
delivered to Lead Counsel and Defendants' Counsel such that they
are received no later than December 29, 2022, in accordance with
the instructions set forth in the Notice.
Please do not contact the Court, the Clerk's office, Yelp, or its
counsel regarding this notice. All questions about this notice,
the proposed Settlement, or your eligibility to participate in the
Settlement should be directed to Lead Counsel or the Claims
Administrator. Visit www.YelpSecuritiesLitigation.com or call
toll-free at (888) 964-0696.
Requests for the Notice and Claim Form should be made to:
Yelp, Inc. Securities Litigation
c/o JND Legal Administration
P.O. Box 91030
Seattle, WA 98111
1-888-964-0696
www.YelpSecuritiesLitigation.com
Inquiries, other than requests for the Notice and Claim Form,
should be made to
Lead Counsel:
GLANCY PRONGAY & MURRAY LLP
Kara M. Wolke, Esq.
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
(888) 773-9224
settlements@glancylaw.com
-AND-
HOLZER & HOLZER LLC
Corey D. Holzer, Esq.
211 Perimeter Center Parkway
Suite 1010
Atlanta, GA 30346
(770) 392-0090
cholzer@holzerlaw.com
By Order of the Court
YEXT INC: Court Appoints Lead Plaintiff & Counsel in Menzione Suit
------------------------------------------------------------------
Yext Inc. disclosed in its Form 10-Q filing for the quarterly
period ended July 31, 2022, filed with the Securities and Exchange
Commission on September 8, 2022, that the court appointed Operating
Engineers Construction Industry and Miscellaneous Pension Fund to
be lead plaintiff for the purported class, and Robbins Gellar
Rudman & Dowd LLP to be lead counsel for the purported class, in
the class action captioned Menzione v. Yext, Inc., et al., No.
1:22-cv-05127 (S.D.N.Y.).
On June 17, 2022, a putative class action lawsuit was filed in the
United States District Court for the Southern District of New York
by a purported purchaser of Company securities. The complaint names
the Company, its former Chief Executive Officer (Howard Lerman),
and its former Chief Financial Officer (Steven Cakebread) as
defendants.
The complaint alleges that the defendants purportedly made false
and/or misleading statements and failed to disclose material
adverse facts about the Company's business, operations, and
prospects, including information regarding the effects of the
COVID-19 pandemic on the Company. The purported class includes all
persons and entities that purchased or acquired our securities
between March 4, 2021 and March 8, 2022. The complaint seeks
monetary damages for alleged securities law violations.
Motions for appointment as lead plaintiff and lead counsel were
filed on August 16, 2022.
On September 6, 2022, the court appointed the Operating Engineers
Construction Industry and Miscellaneous Pension Fund to be lead
plaintiff for the purported class, and Robbins Gellar Rudman & Dowd
LLP to be lead counsel for the purported class.
Yext believes it has meritorious defenses to the claims and intends
to defend itself vigorously.
Yext Inc. is a provider of cloud-based knowledge engine platform
that that provides answers to consumer questions. The company
offers modern search experience on an organization's or business's
own website, and across various service and application providers.
YUMA REGIONAL: Faces Collins Class Action Suit Over Data Breach
---------------------------------------------------------------
Cathy Collins, individually and on behalf of all others similarly
situated v. Yuma Regional Medical Center, Case No.
2:22-cv-01630-ROS (D. Ariz., Sept. 23, 2022) seeks to hold the
Defendant responsible for the harms it caused the Plaintiff and the
more than 737,000 similarly situated persons in the massive and
preventable data breach of Defendant's inadequately protected
computer network.
In April 2022, YRMC experienced suspicious activity on its systems
and identified a ransomware incident. A forensic investigation,
YRMC determined that cybercriminals had gained unauthorized access
to its systems between April 21, 2022 and April 25, 2022 and
removed certain files from its systems. Based on the investigation,
YRMC confirmed that cybercriminals may have accessed or acquired
the confidential and personal information of at least 737,448
patients whose information was stored on YRMC's systems (Data
Breach).
According to YRMC, the personal information exposed to and
potentially accessed or acquired by cybercriminals includes: names,
Social Security Numbers (PII). medical treatment information, and
health insurance information (PHI).
YRMC provides healthcare services to thousands of patients per
year. In order to receive medical services, the Plaintiff and Class
members were required to provide the Defendant with their Personal
Information and did so with the understanding that such information
would be kept safe from unauthorized access.
The Defendant breached this duty and betrayed the trust of
Plaintiff and Class members by failing to properly safeguard and
protect their Personal Information, thus enabling cyber criminals
to access, acquire, appropriate, compromise, disclose, encumber,
exfiltrate, release, steal, misuse, and/or view it. The Defendant's
misconduct -- failing to timely implement adequate and reasonable
measures to protect Plaintiff's and Class members' Personal
Information, failing to timely detect the Data Breach, failing to
take adequate steps to prevent and stop the Data Breach, failing to
disclose the material facts that it did not have adequate security
practices in place to safeguard the Personal Information, and
failing to provide timely and adequate notice of the Data Breach --
caused substantial harm and injuries to Plaintiff and Class members
across the United States, says the suit.
Due to Defendant's alleged negligence and failures, cyber criminals
obtained and now possess everything they need to commit personal
and medical identity theft and wreak havoc on the financial and
personal lives of 737,448 individuals, for decades to come.
The Defendant is a healthcare company that offers medical services
via numerous healthcare facilities throughout Yuma. Defendant's
principal place of business in Yuma, Arizona. As part of
Defendant's business, Defendant collects substantial amounts of
Personal Information. Upon information and belief, the information
Defendant collects includes information that qualifies as "Medical
information" under the federal Health Information Portability and
Accountability Act (HIPAA).[BN]
The Plaintiff is represented by:
Cristina Perez Hesano, Esq.
PEREZ LAW GROUP, PLLC
7508 N. 59th Avenue
Glendale, AZ 85301
Telephone: (602) 730-7100
Facsimile: (623) 235-6173
E-mail: cperez@perezlawgroup.com
- and -
William B. Federman, Esq.
FEDERMAN & SHERWOOD
10205 N. Pennsylvania Ave.
Oklahoma City, OK 73120
Telephone: (405) 235-1560
Facsimile: (405) 239-2112
E-mail: wbf@federmanlaw.com
- and -
A. Brooke Murphy, Esq.
MURPHY LAW FIRM
4116 Will Rogers Pkwy, Suite 700
Oklahoma City, OK 73108
Telephone: (405) 389-4989
E-mail: abm@murphylegalfirm.com
ZERO DAY NUTRITION: Gamez Files Suit in C.D. California
-------------------------------------------------------
A class action lawsuit has been filed against Zero Day Nutrition
Company, et al. The case is styled as Jasmine Gamez, individually
and on behalf of all others similarly situated v. Zero Day
Nutrition Company, a Texas corporation doing business as GLAXON;
DOES 1 through 25, Case No. 5:22-cv-01655 (C.D. Cal., Sept. 21,
2022).
The nature of suit is stated as Other P.I.
Zero Day Nutrition Company doing business as GLAXON --
https://www.glaxon.com/ -- is a brand of mold-breaking dietary
supplements with an emphasis on cross category lifestyle solutions
beyond just the active nutrition space.[BN]
The Plaintiff is represented by:
Scott J. Ferrell, Esq.
PACIFIC TRIAL ATTORNEYS APC
4100 Newport Place Drive Suite 800
Newport Beach, CA 92660
Phone: (949) 706-6464
Fax: (949) 706-6469
Email: sferrell@pacifictrialattorneys.com
ZILLOW INC: Connecticut Court Narrows Claims in Demetres Class Suit
-------------------------------------------------------------------
In the case, AUDREY DEMETRES, Plaintiff v. ZILLOW, INC., Defendant,
Civil No. 3:21cv00802 (JBA) (D. Conn.), Judge Janet Bond Arterton
of the U.S. District Court for the District of Connecticut grants
in part and denies in part Zillow's motion to dismiss the amended
complaint.
The lawsuit is a putative class action for compensatory and
punitive damages in which Demetres alleges that Zillow's on-line
home buying platform utilizes unfair and deceptive tactics,
resulting in the Plaintiffs financial losses. She brings the action
pursuant to the Lanham Act, 15 U.S.C. Section 1125(a), the Sherman
Act, 15 U.S.C. Sections 1 and 2, the Connecticut Unfair Trade
Practices Act, 42 Conn. Gen. Stat Section 110a, et seq., and under
the common law tortious interference with contractual
relationships.
Ms. Demetres is a real estate salesperson and/or real estate broker
residing in Fairfield, Connecticut. The Defendant is a corporation
that "operates the nation's dominant home buying platform at
Zillow.com, which purports to make the process of buying and
selling residential real estate less complicated and lower priced."
According to the Plaintiff, the Defendant misuses its platform in
two ways: through its featuring of Advertising Agents, and through
its use of "Zestimates."
First, the Plaintiff alleges that its "market dominance gives
Zillow the power to tilt the real-world playing field in favor of
its own favored customers." The Defendant's customers are not
homebuyers, but rather real estate agents ("Advertising Agents," as
the Plaintiff refers to them) who pay a fee to it "so they can be
associated with properties with which they do not have a listing
relationship. The "Advertising Agents have more, and a higher
percentage of, buyer broker and dual agency transactions compared
to nonparticipating agents." As a result, a consumer "enters into a
commercial setting the Defendant's dominant, prevailing digital
platform -- where he or she is substantially more likely to
participate in a dual agency dynamic without the careful
disclosures normally required."
As a result of the Defendant's deceptive practices, the Plaintiff
has suffered "the loss of clients, sales, commissions and revenue."
The Amended Complaint alleges that the Defendant's conduct has
"further caused market confusion and economic harm to consumers,"
because it "restricts the marketplace to the detriment of all
consumers and participants in the residential real estate market."
Second, in addition to redirecting home buyers to its Advertising
Agents, the Defendant publishes "its own manufactured, artificial
real estate market in the form of its Zestimate program." The
amended complaint alleges that the Zestimate program "illegally
competes with the actual listing price that is developed through
proper industry appraisal standards; and also through the listing
agent's actual, personal, intimate knowledge of the property in
question and the neighborhood where it is situated." The Plaintiff
has suffered broken agreements with property sellers and buyers as
a result of the Defendant's Zestimates.
The combination of the Defendant's Zestimate program and its
collection of fees from Advertising Agents results in, inter alia,
"de facto listing agreements," deception of agents, sellers and
purchasers, publication of listings on the Multi Listing Services
("MLS") in violation of agency policy and without being properly
licensed, access to confidential information through purchase of
other digital platforms, monopolization of the real estate market
and "dominance, control and overarching pursuit of participation in
every aspect of the market."
As standing is a "threshold matter they must resolve before
reaching the merits," Judge Arterton begins her analysis with the
Defendant's motion to dismiss for lack of standing. The Defendant
views the amended complaint as lacking any "factual allegations
relating to the Plaintiffs alleged harm or injury," that establish
standing such as "dates, names, amounts, or other factual
allegations supporting that she actually lost sales commissions due
to any alleged conduct by Defendant." The Plaintiff claims that the
"breadth" of the amended complaint's allegations present "an
intangible threat of potential harm" sufficient to support Article
III standing.
Judge Arterton finds that the amended complaint alleges damages
based on not only lost commissions, but also broken client
agreements, resulting from the Defendant's practices. Quantifying
lost commissions and broken agreements will be the subject of
discovery and should be addressed at the summary judgment stage.
Ms. Demetres is a real estate broker; by the nature of her trade,
her livelihood depends on her ability to accurately price a home
and is thus in direct competition with Zillow's Zestimates. The
Amended Complaint alleges that the Defendant's practice of
publishing its "Zestimates" resulted in broken listing agreements
because she refused to use the Zestimates price as a listing price,
thus sufficiently linking the Plaintiff's losses to the Defendant's
publication of its Zestimate tool. The Defendant's motion to
dismiss for lack of standing is denied.
Judge Arterton must also determine whether the Defendant counsel's
affidavit should be considered as part of its motion to dismiss.
The Plaintiff argues that it represents a document outside the four
corners of the amended complaint and is not appropriately
considered on a motion to dismiss. The Defendant replies that the
Plaintiff "admits, as she must, that her Complaint relies upon the
content of Defendant's website" and, therefore, "this admission
alone is sufficient for the Court to consider it," since attorney
Berk's affidavit "merely attaches exemplars of the content and
structure of the Defendant's website that are publicly available."
As the amended complaint makes broad allegations that implicate
"structurally different historical versions of the Defendant's
website," the content of those iterations is more appropriately
considered at a later stage of the case, including interpretation
and assessment of the extent to which the website provides
information concerning listing agents and advertising agents and
how such information is used by consumers and/or how it influences
their behavior. Judge Arterton will not consider the Defendant
counsel's affidavit in ruling on the motion to dismiss.
The Plaintiff bases the Defendant's Lanham Act liability on its
alleged false advertising under U.S.C. Section 1125(a)(1)(B)). To
state a claim for false advertising under the Lanham Act, a
plaintiff must allege that: (1) "the statement in the challenged
advertisement is false;" (2) "the defendants misrepresented an
inherent quality or characteristic of the product;" (3) the
defendant placed the false or misleading statement in interstate
commerce;" and (4) "the plaintiff has been injured as a result of
the misrepresentation, either by direct diversion of sales or by a
lessening of goodwill associated with its products."
The Defendant argues that the content on its website (both the
appearance of the Advertising Agents and the Zestimates function)
is not false within the meaning of the Lanham Act, and that the
Plaintiff's Amended Complaint does not sufficiently allege a
misrepresentation of an inherent quality or characteristic of the
product. It also asserts that the Plaintiff has not sufficiently
alleged an injury under the Lanham Act.
Judge Arterton holds that the Plaintiffs description of how
Advertising Agents are listed on the Defendant's website displaying
an option for a customer to contact a listing agent, which does not
in fact allow the customer to contact the listing agent, is a
falsity actionable under the Lanham Act. She further holds that the
Plaintiff does not explain how the mere act of placing
advertisements on a website that consumers also view as a resource
misrepresents an inherent quality or characteristic. Without a
viable legal theory as to how the Defendant's inclusion of the
Advertising Agents is an advertisement that misrepresents an
inherent quality or characteristic of the Defendant's website, the
Plaintiffs claim fails.
Because the Zestimates aspect of the claim fails on falsity, and
the Advertising Agent aspect fails on misrepresentation of an
inherent quality or characteristic, the Plaintiffs Lanham Act claim
is dismissed.
The Plaintiff also alleges that the Defendant violated Sections 1
and 2 of the Sherman Antitrust Act, 15 U.S.C. Sections 1 and 2. The
Defendant assails the Plaintiffs definition of the relevant product
market in which she claims trade was restrained or monopolized by
the Defendant: "the residential real estate market in
Connecticut."
Because the definition of the product market is a prerequisite for
evaluating whether the Defendant was engaging in concerted conduct
with anticompetitive effects on the market under Section 1, or
whether the Defendant was attempting to monopolize it under Section
2, the Plaintiffs lack of specificity is fatal to both its claims
under the Sherman Act. However, there is a second and independent
basis to dismiss: The Amended Complaint does not plausibly allege
violations under Sections 1 or 2 of the Sherman Antitrust Act.
Judge Arterton finds that the Plaintiff does not plausibly allege
that the Advertising Agents were each in a conspiracy with
Defendant and with each other to exclude her and others from the
advertising market, because she does not allege that she was
prevented in any way from simply paying for the same advertising
space on Defendants' website as the Advertising Agents. In the
absence of any such allegations, the Court dismisses the Plaintiffs
Section 1 claim. The Plaintiffs alleged loss of competitive
standing also, without more, is not an injury that the federal
antitrust law was designed to prevent. Therefore, the Plaintiff's
Section 2 claim is dismissed.
As to the state law claims, Judge Arterton (i) denies the
Defendant's motion to dismiss the CUTPA claim as the Court accepts
the Plaintiff's allegations that she incurred losses "as a result
of" Defendant's Zestimate program as true; and (ii) denies the
Defendant's motion to dismiss the Plaintiffs tortious interference
claim because whether the Plaintiff has proof of a contract, and
proof of the Defendant's knowledge and tortious conduct, is a
question for summary judgment.
Finally, the Amended Complaint seeks an injunction directing the
Defendant "to correct the challenged practices." If the Court were
to find the Defendant's practices unlawful, it may fashion a remedy
enjoining the Defendant from engaging in those specific practices.
Thus, the scope of the Plaintiffs injunctive relief is focused on
specific practices, and the Defendant's motion is denied as to
injunctive relief.
For the foregoing reasons, Judge Arterton denies the Defendant's
motion to dismiss for lack of standing, CUTPA and Tortious
Interference claims; she grants the Defendant's motion to dismiss
the Plaintiff's Lanham Act and Sherman Antitrust Act claims. The
parties will file a supplemental 26(f) Report in 14 days.
A full-text copy of the Court's Sept. 21, 2022 Ruling is available
at https://tinyurl.com/27tn2tvs from Leagle.com.
ZUMIEZ INC: Wins Final Approval of $2.8MM Herrera Suit Settlement
-----------------------------------------------------------------
Zumiez Inc. disclosed in its FORM 10-Q filing for the quarterly
period ended July 30, 2022, filed with the Securities and Exchange
Commission on September 8, 2022, that the $2.8 million settlement
in the putative class action captioned Alexia Herrera v. Zumiez
Inc., was paid to the claims administrator for disbursement on
August 19, 2022, following the court's final approval of the
settlement on July 26, 2022.
A putative class action, Alexia Herrera, on behalf of herself and
all other similarly situated, v. Zumiez Inc., was filed against the
Company in the Eastern District Count of California, Sacramento
Division under case number 2:16-cv-01802-SB in August 2016.
Alexandra Bernal filed the initial complaint and then in October
2016 added Alexia Herrera as a named plaintiff and Alexandra Bernal
left the case. The putative class action lawsuit against the
Company alleges, among other things, various violations of
California's wage and hour laws, including alleged violations of
failure to pay reporting time.
In May 2017, the Company moved for judgment on the pleadings in
that plaintiff's cause of action for reporting-time pay should fail
as a matter of law as the plaintiff and the other putative class
members did not "report for work" with respect to certain shifts on
which the plaintiff's claims are based.
In August 2017, the court denied the motion.
However, in October 2017 the district court certified the order
denying the motion for judgment on the pleadings for immediate
interlocutory review by the United States Court of Appeals for the
Ninth Circuit. The Company then filed a petition for permission to
appeal the order denying the motion for judgment on the pleadings
with the United States Court of Appeals for the Ninth Circuit,
which petition was then granted in January 2018.
The Company's opening appellate brief was filed on June 6, 2018 and
the plaintiff's answering appellate brief was filed August 6, 2018.
The Company's reply brief to the Plaintiff's answering appellate
brief was filed on September 26, 2018 and oral arguments were
completed on February 4, 2019.
On May 20, 2019, the United States Court of Appeals for the Ninth
Circuit granted its motion for leave to file a supplemental brief
addressing new authority.
On June 10, 2019, the plaintiff's supplemental answering brief was
filed with the United States Court of Appeals for the Ninth
Circuit. The Company then filed its supplemental reply brief to the
plaintiff's supplemental answering brief with the United States
Court of Appeals for the Ninth Circuit on June 24, 2019.
On March 19, 2020, the United States Court of Appeals for the Ninth
Circuit published its opinion (i) affirming the District Court's
denial of judgment on the pleadings on plaintiff's reporting time
pay and minimum wage claims, (ii) reversing the District Court's
denial of judgment on the pleadings on plaintiff's expense
reimbursement claim and (iii) refusing to certify the reporting
time pay question to the California Supreme Court.
On April 2, 2020 the Company filed a petition for rehearing en banc
to certify the reporting time pay question to the California
Supreme Court and on April 27, 2020 plaintiff filed a response to
the Company's petition for rehearing en banc. The Company in turn
filed a reply in support of its petition for rehearing en banc on
May 1, 2020.
On May 14, 2020, the United States Court of Appeals for the Ninth
Circuit denied the Company's petition for rehearing en banc. The
case was remanded to the Eastern District of California, Sacramento
for further proceedings.
The parties held mediation with a private mediator on June 23,
2021. The parties reached a resolution in principle for all class
claims, which was submitted for the court's approval.
Final approval of the settlement was granted per the court's order
issued on July 26, 2022.
The Company said the settlement of $2.8 million is included in
other liabilities on the consolidated balance sheet as of July 30,
2022 and January 29, 2022, respectively, and was recorded in
selling, general and administrative expenses on the consolidated
statement of operations in the second quarter of 2021. The
settlement was paid to the claims administrator for disbursement on
August 19, 2022.
Zumiez Inc., is a Washington-based specialty retailer of apparel,
footwear, accessories and hard goods.
[*] 1st Annual Complex Litigation Ethics Conference - Register Now
------------------------------------------------------------------
The Center For Litigation and Courts, UC Hastings Law, and
Huntington National Bank invite you to the first annual Complex
Litigation Ethics Conference. This program will bring together
luminaries in the field -- judges, scholars, lawyers, and others --
to discuss a cutting-edge topic that is of critical importance to
our justice system.
The event will be held on campus and virtually on Saturday, October
22, 2022, from 8:45 a.m. to 4:45 p.m. Pacific Time at UC Hastings
College of the Law in San Francisco. 7.0 Ethics CLE Credits are
available.
Expert panelists will discuss important industry topics including:
* Adapting Ethics to Complex Litigation
* Ethics in Funding Complex Litigation
* Diversity, Equity, and Inclusivity in Complex Litigation
* Communications with Absent Class Members
The program will also include a special presentation of an
inaugural Annual Award for Excellence in Ethics in Complex
Litigation. The honoree will be recognized for accomplishments in
promoting ethics in class actions, MDLs, or other complex
litigation.
Capacity is limited, so please register today at
https://bit.ly/3rpycs7
View the agenda at https://bit.ly/3Cv2tMv
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2022. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
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re-mailing and photocopying) is strictly prohibited without prior
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Information contained herein is obtained from sources believed to
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The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact
Peter A. Chapman at 215-945-7000.
*** End of Transmission ***