/raid1/www/Hosts/bankrupt/CAR_Public/221021.mbx
C L A S S A C T I O N R E P O R T E R
Friday, October 21, 2022, Vol. 24, No. 205
Headlines
ABBOTT LABORATORIES: Directors Breach Fiduciary Duties, Martin Says
ALASKA AIRLINES: Website Invades Consumers' Privacy, Kauffman Says
ALERE NORTH: Court Orders Castillo to File Amended Class Complaint
AMERICAN AIRLINES: Kauffman Sues for Invasion of Privacy
ASICS AMERICA: Fails to Timely Pay Wages, Alvarez Suit Claims
AUTOMOBILE HOLDINGS: Manchur Suit Moved to Bristol Cty. State Court
BALL STATE: Court Reverses Elimination of Mellowitz's Class Claims
BERMEO FOOD: Fails to Pay Servers' Minimum, OT Wages Under FLSA
BLUE LINE: Weise Files Suit Over Unpaid Wages and Retaliation
BROTHERS BLESS: Fails to Pay Attendants' OT Wages, Shavers Alleges
CARDINAL LOGISTICS: Nunley Suit Moved to San Bernardino Super. Ct.
CATAPULT HEALTH: Sagna Labor Suit Removed to E.D. Pennsylvania
CENTRAL PARK: Ademi Sues Over Restaurant Servers' Unpaid Wages
CHLB LLC: Thomas Suit Seeks to Recover Untimely Payment of Wages
CHLOE CONSTRUCTION: Charles Sues Over Failure to Pay OT Wages
CJ LOGISTICS: Segovia Labor Suit Removed to C.D. California
CONCEPTS OF INDEPENDENCE: Fails to Pay OT Wages, Kirton Claims
COSTCO WHOLESALE: Denial of Bid to Intervene Under Appeal
COSTCO WHOLESALE: Denies Material Allegations in Diaz Labor Suit
COSTCO WHOLESALE: Faces Rodriguez Labor Suit in Alameda Court
COSTCO WHOLESALE: Lane Suit Settlement Gets Court Approval
CROWN WASTE: Fails to Pay Sanitation Workers' OT Wages, Sims Says
ECCO RETAIL: Amort Labor Suit Removed to N.D. California
EDGEWELL PERSONAL: Souter Appeals Case Dismissal to 9th Cir.
EL CENTRO REGIONAL: Kennedy FLSA Suit Removed to S.D. California
ESA MANAGEMENT: Saflor Labor Suit Removed to N.D. California
ESTUNIGA INC: Fails to Pay Video Editors' Proper Wages Under FLSA
FIRST HIGH-SCHOOL: Robbins Geller Named Lead Counsel in Dagan Suit
G.SKILL INT'L: Hurd Bid for Class Cert Withdrawn w/o Prejudice
GEORGIA-PACIFIC WOOD: Suit Seeks to Certify Hourly Employees Class
GILEAD SCIENCES: Court Won't Allow Review of BCBSA's Dismissal
HIRSHBERG ACCEPTANCE: Clerk to Set Oral Argument in Rodriguez Suit
HONEYWELL INT'L: Third Bid to Dismiss Steward Suit Granted in Part
HORIZON BANK: Merrow ERISA Suit Alleges Breach of Fiduciary Duties
ILLINOIS: DOC Head Files 7th Circuit Appeal in Stone Suit
IQ DATA: Singh Class Suit Remanded to King County Superior Court
KIK INTERNATIONAL: Angeles Labor Suit Removed to C.D. California
KNIGHT-SWIFT TRANSPORTATION: Hobbs Seeks to Certify Classes
KONINKLIJKE PHILIPS: Spiekermeier Suit Transferred to W.D. Pa.
KOPPERS INC: Bryant Appeals Suit Dismissal to 4th Cir.
LOWE'S HOME: Johnson Appeals Order Compelling Arbitration
MAGELLAN HRSC: Remand of Rios Suit to Sacramento State Court Nixed
MDL 2873: Charles Tetlack's Death Due to AFFF Exposure, Says Suit
MDL 2873: Elwin Madden's Death Due to AFFF Exposure, Says Suit
MDL 2873: Haynes Sues Over Injuries From PFAS Exposure
MDL 2873: Lovan Files Personal Injury Suit Over PFAS Exposure
MDL 2913: Andover Central Sues Over Youth E-Cigarette Crisis
MDL 2913: Bixby Public Schools Sues Over Youth E-Cigarette Crisis
MDL 2913: Bremerton School Sues Over E-Cigarette Promotion to Youth
MDL 2913: Calera Public Schools Sues Over Youth E-Cigarette Crisis
MDL 2913: Checotah Public Schools Sues Over E-Cigarette Crisis
MDL 2913: Clinton Central Balks at E-Cigarette Promotion to Youth
MDL 2913: Commerce Public Schools Sues Over E-Cigarette Crisis
MDL 2913: Delsea Regional Sues Over Youth E-Cigarette Crisis
MDL 2913: E-Cigarettes Target Youth Market, Franklin Township Says
MDL 2913: E-Cigarettes Target Youth Market, Harford County Claims
MDL 2913: E-Cigarettes Target Youth Market, Mount Vernon Claims
MDL 2913: Faces Gilmer County Suit Over Youth E-Cigarette Crisis
MDL 2913: Framingham Public School Sues Over E-Cigarette Crisis
MDL 2913: Lake Arthur Municipal Sues Over Youth E-Cigarette Crisis
MDL 2913: Poughkeepsie City School Sues Over E-Cigarette Crisis
MDL 2913: Promotes E-Cigarettes to Youth, Goodwell Public Says
MDL 2913: Whiteriver Unified Sues Over Youth E-Cigarette Crisis
MELROSE HOME: Fails to Pay Laborers' Minimum Wages, OT Under FLSA
METROPOLITAN GENERAL: Wins in Part Bid to Dismiss MSP Recovery Suit
NEW YORK INSTITUTE: Boykin-Smith Class Suit Remanded to State Court
NONNI'S FOODS: Court Grants Bid to Stay Discovery in Bardsley Suit
PERFORMANCE FOOD: Rodriguez Labor Suit Removed to N.D. California
RETAIL SERVICES: Appeals Remand Order in Asabre to 4th Cir.
ST. LOUIS, MO: Williams Ordered to State Plans Regarding Cody Suit
SUNDIAL GROWERS: Order & Final Judgment Entered in Securities Suit
TEXAS: Judgment on Douthit's Section 1983 Claims v. TDCJ Affirmed
TILRAY BRANDS: Parties Continue to Finalize Settlement Agreement
UNITED RECOVERY: Faces Sun Suit Over Illegal Debt Collection
UNITED STATES: Agrees to Settle PACER Class Action for $125-Mil.
UNITED STATES: More XRP Holders Join Class Action Against SEC
WALGREENS BOOTS: Smith Appeals Opioid Case Dismissal to 9th Cir.
WALGREENS BOOTS: WCERS Suit Settlement Gets Final Court Approval
WELCH FOODS: Appeals Class Cert. Ruling in Clevenger Suit
Asbestos Litigation
ASBESTOS UPDATE: U.S. Steel/BP Amoco Loses $5.6MM Mesothelioma Suit
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ABBOTT LABORATORIES: Directors Breach Fiduciary Duties, Martin Says
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LEON MARTIN, derivatively on behalf of ABBOTT LABORATORIES v.
ROBERT B. FORD, ROBERT J. ALPERN, M.D., SALLY E. BLOUNT, PH.D.,
PAOLA GONZALEZ, MICHELLE A KUMBIER, DARREN W. McDEW, NANCY
McKINSTRY, WILLIAM A. OSBORN, MICHAEL F. ROMAN, DANIEL J. STARKS.
JOHN G. STRATTON, GLENN F. TILTON, ROBERT E. FUNCK, JOSEPH MANNING,
and CHRISTOPHER J. CALAMARI and ABBOTT LABORATORIES Case:
1:22-cv-05513 (N.D. Ill., Oct. 7, 2022) is a class action alleging
that the Defendants breached their fiduciary duties and violated
the federal securities laws by concealing lapses in safety
protocols at the Sturgis facility that resulted in environmental
contamination with Cronobacter sakazakii bacteria.
Additionally, the Individual Defendants breached their fiduciary
duties by artificially inflating the stock price of Abbott.
In February 2022, an inspection by the United States Food and Drug
Administration (FDA) confirmed Cronobacter contamination at the
Sturgis facility and uncovered that Abbott had previously
identified incidents of such contamination, causing the Company to
destroy contaminated products.
By September 2021, the Company received several complaints
concerning infant deaths related to Abbott's infant formulas.
On February 17, 2022, Abbott issued a recall of various infant
formula products manufactured at the Sturgis facility, including
Similac, Alimentum, and EleCare. Abbott did not disclose the
existence of the FDA investigation, instead portraying the recall
as a proactive measure to protect the public.
After the markets closed on March 22, 2022, the FDA released
reports concerning its inspection of Abbott's Sturgis facility
which, inter alia, showed that between January and March 2022, the
Company failed to establish controls sufficient to ensure that its
infant formulas did not become adulterated by microorganisms in the
formula or processing environment.
In March 2022 testimony before a House of Representatives
Subcommittee, FDA commissioner Robert Califf stated that there was
bacteria growing at multiple sites in the Sturgis facility, cracks
in key equipment, roof leaks, and standing water which were
egregiously unsanitary.
The Plaintiff is a current shareholder of Abbott and has been a
continuous owner of Abbott stock throughout the relevant period.
Abbott develops and manufactures a broad line of healthcare
products through its Pharmaceutical Products, Diagnostic Products,
Nutritional Products and Medical Devices Segments.
The Individual Defendants are officers and directors of the
company.[BN]
The Plaintiff is represented by:
Carl V. Malmstrom, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC
111 W. Jackson Blvd., Suite 1700
Chicago, IL 60604
Telephone: (312) 984-0000
Facsimile: (212) 686-0114
E-mail: malmstrom@whafh.com
- and -
Seth D. Rigrodsky, Esq.
Timothy J. MacFall, Esq.
Gina M. Serra, Esq.
RIGRODSKY LAW, P.A.
825 East Gate Boulevard, Suite 300
Garden City, NY 11530
Telephone: (516) 683-3516
E-mail: sdr@rl-legal.com
tjm@rl-legal.com
gms@rl-legal.com
- and -
Joshua H. Grabar
GARBAR LAW OFFICE
One Liberty Place 1650 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (267) 507-6085
E-mail: jgrabar@grabarlaw.com
ALASKA AIRLINES: Website Invades Consumers' Privacy, Kauffman Says
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DAVID KAUFFMAN, individually and on behalf of others similarly
situated, Plaintiff v. ALASKA AIRLINES, INC., Defendant, Case No.
3:22-cv-01525-DMS-AGS (S.D. Cal., Oct. 6, 2022) is brought against
the Defendant for violations of the Federal Wiretap Act and the
California Invasion of Privacy Act in relation to the unauthorized
interception, collection, recording, and dissemination of
Plaintiff's and Class Members' communications and data.
This case stems from Defendant's unauthorized interception and
connection to Plaintiff's and Class Members' electronic
communications through the use of "session replay" spyware that
allowed Defendant to read, learn the contents of, and make reports
on Plaintiff's and Class Members' interactions on Defendant's
website, www.alaskaair.com.
According to the complaint, the Defendant utilized "session replay"
spyware to intercept Plaintiff's and the Class Members' electronic
computer-to-computer data communications, including how Plaintiff
and Class Members interacted with the website, mouse movements and
clicks, keystrokes, search items, information inputted into the
website, and pages and content viewed while visiting the website.
The Defendant intentionally tapped and made unauthorized
interceptions and connections to Plaintiff and Class Members'
electronic communications to read and understand movement on the
website, as well as everything Plaintiff and Class Members did on
those pages, e.g., what Plaintiff and Class Members searched for,
looked at, the information inputted, and clicked on, says the
suit.
Alaska Airlines, Inc. is a major American airline headquartered in
SeaTac, Washington, within the Seattle metropolitan area.[BN]
The Plaintiff is represented by:
Joshua B. Swigart, Esq.
SWIGART LAW GROUP, APC
2221 Camino del Rio S, Ste 308
San Diego, CA 92108
Telephone: (866) 219-3343
E-mail: Josh@SwigartLawGroup.com
- and -
Daniel G. Shay, Esq.
LAW OFFICE OF DANIEL G. SHAY
2221 Camino del Rio S, Ste 308
San Diego, CA 92108
Telephone: (619) 222-7429
E-mail: DanielShay@TCPAFDCPA.com
ALERE NORTH: Court Orders Castillo to File Amended Class Complaint
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In the case, GEORGE CASTILLO, on behalf of himself and all others
similarly situated, Plaintiff v. ALERE NORTH AMERICA, INC., a
Delaware corporation; ALERE, INC., a Delaware corporation; ABBOTT
LABORATORIES, INC., an Illinois corporation; and DOES 1-50,
inclusive, Defendants, Case No. 3:21-cv-01519-RBM-AGS (S.D. Cal.),
Judge Ruth Bermudez Montenegro of the U.S. District Court for the
Southern District of California orders the Plaintiff to file an
amended complaint.
Currently pending before the Court is a March 16, 2022 motion by
Defendants Alere North America, Inc. ("Alere NA"), Alere, Inc.
("Alere"), and Abbott Laboratories, Inc. (collectively
"Defendants") and Abbott Rapid Dx North America, LLC for review of
the Order Granting Plaintiff's Motions to Compel and the Order
Following Motion Hearing entered by the Magistrate Judge Andrew G.
Schopler on March 2, 2022, and March 3, 2022. Castillo filed a
brief in opposition to the motion on April 4, 2022, and the
Defendants and Rapid Dx filed a reply brief on April 11, 2022.
The case was removed from the Superior Court of California, County
of San Diego, to this Court on Aug. 26, 2021. The notice of removal
was filed by Rapid Dx, Alere, and Abbott. In the notice of removal,
the counsel for the Defendants and Rapid Dx stated that Defendants
Rapid Dx (erroneously sued in the Complaint as Alere North America,
Inc.), Alere, and Abbott remove the action filed by the Plaintiff.
After the Plaintiff filed suit in state court, the Defendants'
counsel signed and returned the Notice of Acknowledgment of Receipt
on behalf of Alere NA, thereby accepting service on behalf of Alere
NA. At that time, the Defendants alerted the Plaintiff that Alere
NA was improperly named and that the correct employer-entity was
Rapid Dx. However, the Plaintiff refused to dismiss Alere NA and to
instead name Rapid Dx.
The Plaintiff's Complaint, filed as putative class action, alleges
nine claims, including, among other things, failure to pay wages,
failure to pay overtime, failure to authorize rest periods, and
failure to provide meal periods. He alleges he "was employed by the
Defendants at various times during the liability period" as a
Material Handler in San Diego, California.
Alere NA underwent corporate reorganization starting in 2013.
According to the notice of removal, it was a corporation
incorporated under the laws of the State of Delaware. It converted
to a limited liability company under the laws of the State of
Delaware on June 28, 2013 and subsequently was renamed Rapid Dx on
Nov. 18, 2019. Despite this corporate restructuring, the Plaintiff
continued to receive pay stubs from Alere NA through at least July
24, 2020.
On the same day the Defendants and Rapid Dx removed this action
from state court, an answer was filed on behalf of Defendants Rapid
Dx (erroneously sued as Alere North America, Inc.), Alere, and
Abbott. The Defendants and Rapid Dx also filed a corporate
disclosure statement and notice of party with financial interest.
In the corporate disclosure statement, the Defendants state that
Alere NA is now, and has been at all times since at least May 20,
2021, Rapid Dx. Rapid Dx's sole member is Alere US Holdings, LLC.
The sole member of Alere US Holdings, LLC is Alere. In their notice
of party with financial interest, the Defendants listed Rapid Dx as
party with financial interest.
On Aug. 30, 2021, Judge Schopler scheduled an Early Neutral
Evaluation ("ENE") and Case Management Conference ("CMC") for Oct.
29, 2021. On Oct. 5, 2021, the Plaintiff, the Defendants, and Rapid
Dx filed a joint motion to continue the ENE. Again, the joint
motion was filed on behalf of Castillo and Defendants Rapid Dx
(erroneously sued as Alere NA), Alere, and Abbott. Judge Schopler
denied the parties' joint motion on Oct. 6, 2021.
On Oct. 19, 2021, in advance of the ENE and CMC, the parties filed
a Report pursuant to Federal Rule of Civil Procedure 26(f). The
Rule 26(f) Report noted the counsel for the Plaintiff and the
counsel for the Defendants, including Rapid Dx, participated in
meet and confer efforts. The Report further noted the parties'
dispute regarding which entity employed the Plaintiff: The
Defendants deny that the Plaintiff was employed by all three of the
named entities, and contend that he was only employed by Rapid Dx
(formerly Alere NA). The Plaintiff, on the other hand, maintained
he filed suit against his former employers, Defendants Alere, Alere
NA, and Abbott. The Rule 26(f) Report made at least six references
to Rapid Dx, and the counsel signed the Report on behalf of
Defendants Rapid DX, Alere, and Abbott. In the section of the
Report discussing discovery plans, the Defendants noted they "will
take discovery as to the Plaintiff's claims and its defenses" and
that "Rapid Dx has served initial sets of interrogatories and
requests for production of documents" upon the Plaintiff.
Judge Schopler held an ENE and CMC on Oct. 29, 2021. The counsel
for the Plaintiff, the Defendants, and Rapid Dx attended the ENE
and CMC. Later that day, a scheduling order regulating discovery
and other pretrial proceedings was issued. That scheduling order
set a deadline of Dec. 12, 2021 to file any motion to join other
parties, to amend the pleadings, or to file additional pleadings.
Judge Schopler also scheduled a continued ENE for Jan. 26, 2022.
The ENE was subsequently rescheduled for Feb. 8, 2022, due to a
scheduling conflict.
On Dec. 29, 2021, the parties filed a joint motion for stipulated
protective order. The joint motion was filed on behalf of Castillo
and Defendants Rapid Dx (erroneously sued as Alere NA), Alere, and
Abbott, and the defense counsel again signed the joint motion on
behalf of these. Judge Schopler granted the parties' joint motion
for protective order on Jan. 3, 2022.
On Jan. 28, 2022, the Plaintiff filed motions to compel: (1) Rapid
DX to Produce Documents and Further Responses to Plaintiff's
Request for Production of Documents, Set One; and (2) Rapid DX to
Provide Further Responses to Interrogatories, Set One.
The Plaintiff sought an order requiring the Defendants to provide
further responses to the following requests for production and
interrogatory:
a. REQUEST FOR PRODUCTION NO. 5: Any and all time records
showing when all CLASS MEMBERS begin (or began) and end (or ended)
each work period, including meal periods, and total daily hours
worked during the RELEVANT TIME PERIOD.
b. REQUEST FOR PRODUCTION NO. 6: Any and all RECORDS,
DOCUMENTS, and/or WRITINGS stating or evidencing all wage payments
(including method/s of calculation and cash payments), made to the
CLASS MEMBERS during the RELEVANT TIME PERIOD (e.g., payroll
records, pay stubs, itemized statements pursuant to Labor Code
Section 226).
c. INTERROGATORY NO. 2: IDENTIFY all CLASS MEMBERS employed by
YOU during the RELEVANT TIME PERIOD.
The Defendants filed briefs in opposition to both motions on Feb.
11, 2022. The Plaintiff filed his reply briefs on Feb. 18, 2022.
The Defendants make two arguments in opposition to the Plaintiff's
motions to compel. First, they argue the Plaintiff's motions are
improper because he "seeks to compel responses to discovery
requests that he propounded on an entity that has never been named
or served as a defendant in this lawsuit." Second, they argue that,
even if the Plaintiff has sued and served the correct entity, he is
not entitled to classwide discovery because he cannot make the
threshold showing of numerosity and predominance under Rule 23.
In his reply brief, the Plaintiff cites Rapid Dx's participation in
this action. He notes "a short amendment under Fed. R. Civ. P, Rule
15(c) is sufficient to resolve this issue," but argues Alere NA was
sued in the Complaint "because it was identified as the employer
entity on most of his wage statements issued under Labor Code
Section 226." He also argues he is entitled to class discovery
because "the discovery is likely to produce substantiation of the
class allegations and is consistent with Rule 26."
Judge Schopler held a further ENE and discovery conference on Feb.
8, 2022. He ruled the discovery dispute will be resolved after full
briefing at the Feb. 25, 2022 motion hearing. The motion hearing
was later rescheduled to March 2, 2022.
Prior to the March 2 motion hearing, the Plaintiff filed a "Second
Motion to Compel Defendants to Produce Documents and Further
Responses to Plaintiff's Request for Production of Documents, Set
One." In his third motion to compel, the Plaintiff sought an order
requiring the Defendants to provide further responses to the below
requests for production:
a. REQUEST FOR PRODUCTION NO. 1: Any and all DOCUMENTS written
or in effect during the RELEVANT TIME PERIOD which constitute,
refer or relate to personnel guides, employee handbooks,
supervisory manuals, memoranda, directives, and similar DOCUMENTS
which describe, embody, or otherwise reflecting YOUR policies,
practices, and procedures applicable to the employment of CLASS
MEMBERS, including without limitation as to meal or rest periods,
waivers, reimbursement for expenses, timekeeping, rounding, wage
payments, premium payments, overtime, wage statements or payment of
wages at termination.
b. REQUEST FOR PRODUCTION NO. 7: All DOCUMENTS showing,
illustrating or mentioning how YOU informed CLASS MEMBERS to take
meal or rest periods, or begin and end any shift, including any
work schedules in effect for the CLASS MEMBERS at any time during
the RELEVANT TIME PERIOD which depict the start time and end time
of any particular shift, as well as meal periods and rest periods
(if applicable).
c. REQUEST FOR PRODUCTION NO. 8: All DOCUMENTS identifying,
indicating, or explaining the various job titles and job
descriptions of all CLASS MEMBERS as defined herein.
d. REQUEST FOR PRODUCTION, NO. 9: Copies of all written
complaints received by YOU from CLASS MEMBERS regarding the causes
of action plead in the COMPLAINT.
e. REQUEST FOR PRODUCTION, NO. 10: Copies of all
organizational chart(s) indicating parents, subsidiaries, and
affiliates of DEFENDANT at any time throughout the RELEVANT TIME
PERIOD.
f. REQUEST FOR PRODUCTION, NO. 11: Copies of all internal
organizational chart(s) indicating the divisions, departments,
business units, or other such subunits of DEFENDANT throughout the
RELEVANT TIME PERIOD.
g. REQUEST FOR PRODUCTION, NO. 12: Floorplans or schematics
for each location/facility where CLASS MEMBERS performed job duties
for DEFENDANT throughout the RELEVANT TIME PERIOD.
In the motion, the Plaintiff alleges that although the Defendants
and Rapid Dx initially agreed to produce the information at issue,
they later refused on the grounds that Rapid Dx was a nonparty to
the action. He further alleged they refused to stipulate to an
amendment to formally name 'Rapid Dx' as a Defendant in the
Complaint.
The Defendants filed a brief in opposition to the Plaintiff's third
motion to compel on March 15, 2022. They argue they are not opposed
in principle to producing the documents sought by the Plaintiff's
Motion to Compel, but maintain that ARDx must first be named as a
defendant in the Plaintiff's Complaint and served with a summons
before it can be compelled to respond.
On March 2, 2022, Judge Schopler held a motion hearing on the
Plaintiff's first two motions to compel. At the hearing, he granted
both motions to compel, and the Defendants were ordered to respond
to the Plaintiff's discovery requests by March 23, 2022.
Specifically, he found that Rapid Dx has "understood themselves to
be and have held themselves out as a defendant since the beginning
of this case," including by removing the suit to this Court,
participating in the ENE, and issuing and taking party discovery
such as the Plaintiff's deposition.
Regarding Defendants' arguments about the appropriateness of class
discovery, Judge Schopler found such determinations "within his
discretion," and went on to find the Plaintiff likely made a prima
facie showing of numerosity and predominance with respect to
payroll information. Regarding Request for Production No. 5, which
seeks information regarding start/stop times and meal/rest-break
times, Judge Schopler found the Plaintiff "has enough to start down
the class path, it seems to me" and that "there's enough here to
compel the requested discovery which is unquestionably relevant to
those claims."
In addition to his rulings on the record, Judge Schopler issued a
written order one day after the hearing on March 3, 2022, finding
that a Belaire-West Landscape v. Superior Ct., 149 Cal.App.4th 554
(2007) notice to putative class members was unnecessary, and that
Defendants must instead turn over discovery to the Plaintiff
subject to the terms of the parties' stipulated protective order.
Six days following the motion hearing, the Defendants filed a
notice of intent to file a motion for review of Judge Schopler's
March 2 and 3 Orders, as well as a request that the Orders-- as
well as further briefing on the Plaintiff's third motion to compel
-- be stayed until reviewed by Juduge Montenegro. Judge Schopler
granted the Defendants' motion.
On March 10, 2022, Alere NA filed an answer to the Plaintiff's
Complaint, as the answer filed in August 2021 was filed on behalf
of Rapid not Alere NA.
On March 16, 2022, the Defendants filed a motion for review of
Judge Schopler's March 2 and 3 Orders. The Plaintiff filed his
brief in opposition on April 4, 2022, and the Defendants filed
their reply brief on April 11, 2022.
The Defendants argue Judge Schopler's orders compelling non-party
ARDx to respond to interrogatories and requests for production of
documents (neither of which can be served on a nonparty) are
clearly erroneous and contrary to law. Specifically, they argue
Judge Schopler erred on four grounds by: (1) finding Rapid Dx is a
party to this lawsuit due to its participation in the lawsuit; (2)
ordering Rapid Dx to respond to discovery because such discovery
applies only to parties; (3) finding Rapid Dx is judicially
estopped from asserting that it is a non-party; and (4) compelling
discovery of contact information and time and pay records of
employees who are outside the class definition in the Plaintiff's
complaint.
The case was transferred to Judge Montenegro from the calendar of
District Judge Cynthia Bashant on April 7, 2022.
From the time the Defendants filed their notice of removal in this
Court over a year ago, the parties' main dispute appears to be
whether the Plaintiff named in the Complaint and served the correct
parties. The Plaintiff maintains Alere NA was named as a Defendant
because, regardless of any corporate restructuring which occurred
and which transformed Alere NA into Rapid, he continued to receive
pay stubs from Alere NA through at least July 24, 2020.
The Defendants argue Rapid Dx is not and never has been a party to
this lawsuit, and point to "extensive meet and confer efforts with
the Plaintiff's counsel regarding his correct employer and the
improperly named defendants in this lawsuit. In response, the
Plaintiff points to Rapid Dx's active participation in this
lawsuit.
Judge Montenegro holds that the Defendants are correct that the
Plaintiff failed to file any motion to amend his Complaint prior to
the Dec. 12, 2021 deadline established in the case scheduling
order. She says the Plaintiff's decision not to amend his Complaint
led the Defendants to seek sanctions against him and his counsel in
February 2022, arguing the "Plaintiff has repeatedly refused to
name ARDx as party and dismiss the named Defendants, despite ample
notice and evidence that ARDx is the only proper employer-entity."
In response, the Plaintiff argued sanctions were unwarranted
because Rapid Dx held itself out as a party due to its
participation in this litigation, and that if the Court did award
sanctions, "then 'non-party' Rapid Dx should similarly be
sanctioned for initiating discovery and participating in the
litigation process without having any right to do so."
Despite fiercely litigating this issue for over a year, the parties
do not dispute the following propositions: Three Defendants --
Alere NA, Alere, and Abbott -- were named by the Plaintiff in his
Complaint. The entity once known as Alere North America, Inc. was
later converted to a limited liability company, Alere North
America, LLC, and Alere North America, LLC was subsequently renamed
Abbott Rapid Dx North America, LLC. Abbott Rapid Dx North America,
LLC (the entity which was formerly Alere North America, Inc.) was
the Plaintiff's employer-entity. And, importantly for present
purposes, the parties also do not appear to dispute that an
amendment to the Complaint, naming Rapid Dx as a Defendant, would
resolve the majority of the parties' disputes, including all of the
Defendants' objections to Judge Schopler's March 2 and 3 Orders.
Although the Plaintiff has not filed a motion for leave to amend,
he has requested the Court grants such leave pursuant to Federal
Rule of Civil Procedure 15. He also alleges he met and conferred
with the Defendants about a stipulation to amend the scheduling
order, but the Defendants refused.
Because neither party appears to dispute that amendment to the
Complaint would allow the case to proceed efficiently, Judge
Montenegro considers whether such amendment is appropriate. She
explains that when determining whether to grant leave to amend,
courts generally consider five factors, known as the Foman factors
as stated by the Supreme Court in Foman v. Davis, 371 U.S. 178, 182
(1962). These factors include: (1) undue delay; (2) bad faith on
the part of the party seeking leave to amend; (3) undue prejudice
to the non-moving party; (4) futility of amendment; and (5) whether
the plaintiff has previously amended the complaint.
The Ninth Circuit has held that it is the consideration of
prejudice to the opposing party that carries the greatest weight.
Absent prejudice, or a strong showing of any of the remaining Foman
factors, there exists a presumption under Rule 15(a) in favor of
granting leave to amend.
Because any amendment would occur after the Dec. 12, 2021 deadline
for amendments established in the case scheduling order, Judge
Montenegro must first examine the good cause standard of Rule
16(b). The standard focuses on the diligence of the party seeking
amendment. She holds that the case has been ongoing for over a
year. The Court has already invested substantial time with the
parties by holding two ENEs, a CMC, and a discovery conference. The
parties have engaged in substantial discovery, including
depositions of key witnesses like the Plaintiff. Under these
circumstances, and because any amendment to the scheduling order
would be for the sole purpose of allowing the Plaintiff to add
Rapid Dx as a Defendant or replace all references to Alere NA to
Rapid Dx in the Complaint, Judge Montenegro finds good cause under
Rule 16(b) to modify the scheduling order.
Next, Judge Montenegro considers the Foman factors to determine
whether to grant leave to amend under Rule 15(a). She finds that
the Defendants and Rapid Dx would not be prejudiced by an amendment
to the Plaintiff's Complaint. Any amendment to the Complaint would
be for the limited purpose of adjusting the names of the
Defendants. The Plaintiff's claims will remain the same. Most
importantly, amending the Complaint upholds "the underlying purpose
of Rule 15 -- to facilitate decision on the merits rather than on
the pleadings or technicalities."
Judge Montenegro finds that the other Foman factors also weigh in
favor of amending the Complaint. She says amendment of the
Complaint will not unduly delay the case, as no other adjustments
to the scheduling order need to be made. The Plaintiff has not
previously amended the Complaint, which also weighs in favor of
granting leave to amend. Amendment of the Complaint will also
resolve the Defendants' and Rapid Dx's objections to Judge
Schopler's March 2 and 3 Orders, all of which were premised on
their assertion that Rapid Dx is a non-party and therefore not
obligated to respond to the Plaintiff's discovery requests.
Rule 15(a) makes clear the Court "should freely give leave when
justice so requires." Judge Montenegro accordingly exercises
discretion and grants the Plaintiff leave to amend his Complaint.
For the reasons discussed, the Plaintiff is ordered to file an
amended complaint on the public docket in accordance with the terms
of Judge Montenegro's Order. The Plaintiff is prohibited from
making any substantive edits to the Complaint other than adding
Rapid Dx as a Defendant.
In light of the Court's ruling, the Defendants' motion for review
of the magistrate's order is denied as moot. Judge Montenegro
refers the Plaintiff's pending motion to compel to Judge Schopler
for determination.
A full-text copy of the Court's Oct. 5, 2022 Order is available at
https://tinyurl.com/5drtc8jt from Leagle.com.
AMERICAN AIRLINES: Kauffman Sues for Invasion of Privacy
--------------------------------------------------------
DAVID KAUFFMAN, individually and on behalf of others similarly
situated, Plaintiff v. AMERICAN AIRLINES, INC., Defendant, Case No.
3:22-cv-01524-BEN-WVG (S.D. Cal., Oct. 6, 2022) is brought against
the Defendant for violations of the Federal Wiretap Act and the
California Invasion of Privacy Act in relation to the unauthorized
interception, collection, recording, and dissemination of
Plaintiff's and Class Members' communications and data.
This case stems from Defendant's unauthorized interception and
connection to Plaintiff's and Class Members' electronic
communications through the use of "session replay" spyware that
allowed Defendant to read, learn the contents of, and make reports
on Plaintiff's and Class Members' interactions on Defendant's
website, www.aa.com.
According to the complaint, the Defendant utilized "session replay"
spyware to intercept Plaintiff's and the Class Members' electronic
computer-to-computer data communications, including how Plaintiff
and Class Members interacted with the website, mouse movements and
clicks, keystrokes, search items, information inputted into the
website, and pages and content viewed while visiting the website.
The Defendant intentionally tapped and made unauthorized
interceptions and connections to Plaintiff and Class Members'
electronic communications to read and understand movement on the
website, as well as everything Plaintiff and Class Members did on
those pages, e.g., what Plaintiff and Class Members searched for,
looked at, the information inputted, and clicked on, says the
suit.
American Airlines, Inc. is a major U.S.-based airline headquartered
in Fort Worth, Texas.[BN]
The Plaintiff is represented by:
Joshua B. Swigart, Esq.
SWIGART LAW GROUP, APC
2221 Camino del Rio S, Ste 308
San Diego, CA 92108
Telephone: (866) 219-3343
E-mail: Josh@SwigartLawGroup.com
- and -
Daniel G. Shay, Esq.
LAW OFFICE OF DANIEL G. SHAY
2221 Camino del Rio S, Ste 308
San Diego, CA 92108
Telephone: (619) 222-7429
E-mail: DanielShay@TCPAFDCPA.com
ASICS AMERICA: Fails to Timely Pay Wages, Alvarez Suit Claims
-------------------------------------------------------------
MARIOLGA ALVAREZ, individually and on behalf of others similarly
situated, Plaintiff v. ASICS AMERICA CORPORATION, Defendant, Case
No. 1:22-cv-08566 (S.D.N.Y., October 7, 2022) is a class action
complaint brought against the Defendant for its alleged violations
of the New York Labor Law.
The Plaintiff was employed by the Defendant from approximately
September 2018 until March 2020 as a non-exempt and hourly-paid
manual worker at the Defendant's store at 579 Fifth Avenue,
Manhattan location where she would typically perform physical tasks
for more than of 25% of her workday.
According to the complaint, the Defendant failed to timely pay its
manual workers. Throughout their employment with the Defendant, the
Plaintiff and other similarly situated manual workers were
compensated by the Defendant every other week, thereby depriving
them on a temporary basis of monies owed to them.
On behalf of herself and all other similarly situated manual
workers, the Plaintiff seeks relief in an amount to be determined
at trial, plus liquidated damages, interest, attorneys' fees and
costs, together with such other and further relief the Court may
deem appropriate.
ASICS America Corporation retailer of colorful athletic shoes for
men, women & children, plus sports apparel & accessories. [BN]
The Plaintiff is represented by:
Brett R. Cohen, Esq.
Jeffrey K. Brown, Esq.
Michael A. Tompkins, Esq.
LEEDS BROWN LAW, P.C.
One Old Country Road, Suite 347
Carle Place, NY 11514
Tel: (516) 873-9550
AUTOMOBILE HOLDINGS: Manchur Suit Moved to Bristol Cty. State Court
-------------------------------------------------------------------
Judge Rya W. Zobel of the U.S. District Court for the District of
Massachusetts remands the case, EDWARD L. MANCHUR, individually and
on behalf of those similarly situated v. AUTOMOBILE HOLDINGS, LLC
D/B/A PRIME MOTOR GROUP and AMR AUTO HOLDINGS-PA, LLC D/B/A AUDI
WESTWOOD, Civil Action No. 1:22-CV-10992-RWZ (D. Mass.), to the
Bristol County Superior Court.
Mr. Manchur filed the putative class action in Bristol County
Superior Court for breach of contract and unlawful billing
practices in violation of the Massachusetts Consumer Protection
Law. The Defendants thereafter removed the case, claiming
jurisdiction under the Class Action Fairness Act ("CAFA"). Before
the Court is the Plaintiff's motion to remand.
To establish jurisdiction, the Defendants have the burden to
"allege facts with sufficient particularity to demonstrate that the
amount in controversy exceeds" $5 million at the time of removal.
In cases where the complaint alleges a specific damage amount that
is less than the federal jurisdictional minimum, many circuits
place a heavier burden -- showing to a legal certainty that the
amount in controversy exceeds the jurisdictional threshold -- on
the defendant than if the complaint did not claim a specific
amount. In contrast, in cases where the complaint does not contain
specific damage allegations, the removing defendant must show a
reasonable probability that the amount in controversy exceeds $5
million. The First Circuit has yet not determined what standard
should be applied when the damages are only alleged in a civil
cover sheet.
In the present case, the Plaintiff did not allege damages on the
face of the complaint, but listed $3 million in monetary damages on
his civil cover sheet. The Defendants assert that, in addition to
the $3 million in monetary damages, injunctive relief will
aggregate in excess of $5 million because they will need to make
"fundamental changes to their operations." However, they failed to
demonstrate with reasonable probability that the injunctive relief
necessary to comply with the storage fee notice regulations would
require such "fundamental changes" or would rise to the requisite
amount.
For these reasons, the Plaintiffs motion to remand is allowed.
A full-text copy of the Court's Oct. 5, 2022 Order is available at
https://tinyurl.com/2p9pvfbv from Leagle.com.
BALL STATE: Court Reverses Elimination of Mellowitz's Class Claims
------------------------------------------------------------------
In the case, Keller J. Mellowitz, on behalf of himself and all
others similarly situated, Appellant-Plaintiff v. Ball State
University and Board of Trustees of Ball State University,
Appellees-Defendants, and State of Indiana, Appellee-Intervenor,
Court of Appeals Case No. 22A-PL-337 (Ind. App.), the Court of
Appeals of Indiana reverses the trial court's order granting Ball
State's motion for relief pursuant to Indiana Trial Rule 23(D)(4)
and ordering Mellowitz to file an amended complaint eliminating his
class allegations.
Ball State student Mellowitz filed a putative class-action
complaint against Ball State and its board of trustees, asserting
claims for breach of contract and unjust enrichment based on Ball
State's retention of tuition and fees after it cancelled in-person
classes and closed campus facilities as a result of the COVID-19
pandemic.
According to Mellowitz's complaint, he was enrolled at Ball State
for the spring 2020 academic semester. To enroll, he was required
to pay "numerous fees to Ball State," including "in-person tuition,
student services fees, university technology fees, student
recreation fees, student health fees, and student transportation
fees." In March 2020, Ball State sent students home, cancelled
in-person classes, and closed campus facilities as a result of
COVID-19.
On May 1, 2020, Mellowitz filed a putative class-action complaint
against Ball State and its board of trustees "on behalf of himself
and all others similarly situated," asserting claims of breach of
contract and unjust enrichment and seeking "recovery of tuition and
fees" for "services that were terminated or otherwise not provided
prior to the conclusion" of the semester.
In April 2021, Gov. Eric Holcomb signed into law House Enrolled Act
1002, which became Public Law 166-2021. Public Law 166-2021, part
of which was later codified as Indiana Code Chapter 34-12-5.
Section 13 of the law was codified as Indiana Code Chapter 34-12-5
and was made effective retroactive to March 1, 2020. Indiana Code
Section 34-12-5-7 (Section 7) provides that "a claimant may not
bring, and a court may not certify, a class action lawsuit against
a covered entity for loss or damages arising from COVID-19 in a
contract, implied contract, quasi contract, or unjust enrichment
claim." For purposes of Chapter 34-12-5, a "covered entity" means
"a governmental entity" and "an approved postsecondary educational
institution."
A "governmental entity" means, among other things, a "state
educational institution" such as Ball State. An "approved
postsecondary educational institution" may be either public (such
as Ball State) or private (such as amicus University of Notre Dame
du Lac). And "arising from COVID" means, among other things,
"caused by or resulting from the implementation of policies and
procedures to prevent or minimize the spread of COVID-19."
Relying on Section 7, Ball State filed a motion for relief pursuant
to Indiana Trial Rule 23(D)(4), which provides that in the conduct
of an action brought as a class action, the court may "require that
the pleadings be amended to eliminate therefrom allegations as to
representation of absent persons, and that the action proceed
accordingly."
Mr. Mellowitz filed a response asserting that Section 7 is a
procedural statute that impermissibly conflicts with Trial Rule 23,
which renders it a nullity. In the alternative, he asserted that if
Section 7 is substantive rather than procedural, it results in an
unconstitutional taking of property without just compensation and
an unconstitutional impairment of contract rights. Because
Mellowitz questioned the constitutionality of Section 7, the
attorney general was permitted to intervene on the State's behalf
pursuant to Indiana Code Section 34-33.1-1-1(a).
In February 2022, after a hearing, the trial court issued an order
granting Ball State's motion, finding that Section 7 does not
conflict with Trial Rule 23 and does not result in an
unconstitutional taking or an unconstitutional impairment of
contract rights. The court ordered Mellowitz to file "an amended
complaint excising allegations as to his representation of absent
persons" within 30 days. The interlocutory appeal ensued.
Mr. Mellowitz contends that the trial court erred in granting Ball
State's motion for relief because Section 7 is a procedural statute
that impermissibly conflicts with Trial Rule 23.
The Court of Appeals states that when a trial court's ruling
involves a pure question of law, such as the interpretation or
constitutionality of a statute, its standard of review is de novo,"
citing Church v. State, 189 N.E.3d 580, 585 (Ind. 2022). In Church,
the state supreme court reaffirmed the supremacy of its procedural
rules but acknowledged that its "rules 'cannot abrogate or modify
substantive law.'" It noted that it had long held that laws are
substantive when they establish rights and responsibilities, and
laws are procedural when they merely prescribe the manner in which
such rights and responsibilities may be exercised and enforced. It
observed, however, that except at the extremes, the terms
'substance' and 'procedure' precisely describe very little except a
dichotomy, and what they mean in a particular context is largely
determined by the purposes for which the dichotomy is drawn.
In the case, the procedural rule that Section 7 allegedly conflicts
with is Trial Rule 23, entitled "Class Actions." The Court of
Appeals recently stated that the class action is an exception to
the usual rule that litigation is conducted by and on behalf of the
individual named parties only and that the principal purpose of
class action certification is promotion of efficiency and economy
of litigation. Trial Rule 23 is a purely procedural rule, and the
right to bring a class action is a purely procedural right.
Section 7 is a purely procedural statute, in that it does not
affect a plaintiff's existing substantive right to sue a
postsecondary educational institution for breach of contract or
unjust enrichment. In the parlance of the state supreme court's
long-standing precedent, Section 7 does not "establish rights and
responsibilities," but "merely prescribes the manner in which" a
plaintiff's contractual and quasi-contractual rights "may be
exercised and enforced," i.e., individually and not as a
representative of a class.
Citing Church, Ball State suggests that mandating judicial
inefficiency predominantly furthers public policy objectives by
protecting Indiana's postsecondary educational institutions "from
widespread legal liability arising out of their efforts to combat
and mitigate the spread of COVID-19."
The Court of Appeals finds this reasoning unpersuasive because, as
already mentioned; Section 7 does not abrogate the existing
substantive right to sue those institutions for breach of contract
or unjust enrichment, so it does not reduce the institutions'
potential legal liability in the slightest.
Finally, the Court of Appeals holds that the conflict between the
rule and the statute at issue could not be more stark: Trial Rule
23 says that a claimant "may" bring a class action, and Section 7
says that a claimant "may not" do so. Ball State and the State
attempt to harmonize the two by noting that Trial Rule 23(D)(4)
allows a court to require that pleadings be amended to eliminate
class allegations. But Section 7's blanket prohibition of class
actions effectively dictates that a pleading with class allegations
may not be filed in the first place.
In sum, both Trial Rule 23 and Section 7 "could not apply in a
given situation." Accordingly, the Court of Appeals concludes that
Section 7 is a nullity, and therefore it reverses and remands for
further proceedings consistent with its decision.
Judges Vaidik and Altice concur.
A full-text copy of the Court's Oct. 5, 2022 Order is available at
https://tinyurl.com/34bbay5b from Leagle.com.
Eric S. Pavlack, Colin E. Flora, Pavlack Law, LLC, Indianapolis,
Indiana, ATTORNEYS FOR THE APPELLANT.
Jane Dall Wilson -- jane.wilson@faegredrinker.com -- Paul A. Wolfla
-- paul.wolfla@faegredrinker.com -- Jason M. Rauch --
jason.rauch@faegredrinker.com -- Faegre Drinker Biddle & Reath,
LLP, Indianapolis, Indiana, ATTORNEYS FOR THE APPELLEES.
Theodore E. Rokita, Attorney General, Abigail R. Recker, Deputy
Attorney General, Indianapolis, Indiana, ATTORNEYS FOR
APPELLEE-INTERVENOR STATE OF INDIANA.
Jodie Ferise, Indianapolis, Indiana, ATTORNEY FOR AMICUS CURIAE,
INDEPENDENT COLLEGES OF INDIANA.
Brian E. Casey -- brian.casey@btlaw.com -- Sarah E. Brown --
Sarah.Brown@btlaw.com -- Barnes & Thornburg LLP, South Bend,
Indiana, ATTORNEYS FOR AMICUS CURIAE, UNIVERSITY OF NOTRE DAME DU,
LAC.
BERMEO FOOD: Fails to Pay Servers' Minimum, OT Wages Under FLSA
---------------------------------------------------------------
Cosmelina Almonte, on behalf of herself and others similarly
situated in the proposed FLSA Collective Action v. Bermeo Food
Corp., Nelson Bermeo, and Arturo Bermeo, Case 1:22-cv-06048
(E.D.N.Y., Oct. 8, 2022) seeks to recover unpaid minimum wages,
overtime wages, unlawfully deducted wages, liquidated and statutory
damages, pre- and post-judgment interest, and attorneys' fees and
costs, injunctive and declaratory relief pursuant Fair Labor
Standards Act, the New York Labor Law, and NYLL's Wage Theft
Prevention Act.
The Plaintiff was employed as a server at El Manaba from June 2021
to July 31, 2021. The Plaintiff estimates that the Defendants
allegedly appropriated $35 per day in tips from the Plaintiff, and
all similarly situated individuals' wages. At no time did the
Defendants inform the Plaintiff that they had reduced her hourly
wage by a tip allowance, says the suit.
As a result of the Defendant's violation of the WTPA, the Plaintiff
claims that he is entitled to damages of at least $150 per week
during which the violations occurred.
Bermeo is an Ecuadorian restaurant and bar located at 341 St.
Nicholas Ave., Ridgewood, New York, known as "El Manaba."[BN]
The Plaintiff is represented by:
Jason Mizrahi, Esq.
Joshua Levin-Epstein, Esq.
LEVIN-EPSTEIN & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4700
New York, NY 10165
Telephone: (212) 792-0048
E-mail: Jason@levinepstein.com
BLUE LINE: Weise Files Suit Over Unpaid Wages and Retaliation
-------------------------------------------------------------
LORI WEISE, and other similarly situated individuals, Plaintiff v.
BLUE LINE LAW FIRM PLLC, and KEVIN J. DRUMMOND, individually,
Defendants, Case No. 9:22-cv-81549-XXXX (S.D. Fla., October 7,
2022) is a collective action complaint brought against the
Defendants to recover money damage for unpaid regular wages and
retaliation pursuant to the Fair Labor Standards Act.
The Plaintiff has worked for the Defendant as a non-exempted full
time and hourly-paid paralegal from April 25, 2022 to May 27,
2022.
According to the complaint, throughout the Plaintiff's employment
with the Defendant, she was required to clock out for one hour of
lunchtime daily and the Defendant deducted one hour daily or 5
hours weekly as lunchtime from the Plaintiff's hours worked
although there was at least two days per week when she was not able
to take her lunchtime. The Plaintiff was also required to work at
least one off-the-clock hour every week without being compensated.
In addition, the Plaintiff was not paid regularly on payment day.
When the Plaintiff complained multiple times about the lack of
payment for regular hours to her manager Kevin J. Drummond, her
working hours were lowered by the Defendant from 40 to 20 hours
weekly. Moreover, the Plaintiff did not receive her payment again
on or about May 27, 2022. Because she could not stand the payment
issues and mistreatment received, the Plaintiff was forced to
resign from her employment with the Defendants, says the
Plaintiff.
Blue Line Law Firm PLLC operates as a law firm owned and managed by
Kevin J. Drummond. [BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Tel: (305) 446-1500
Fax: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
BROTHERS BLESS: Fails to Pay Attendants' OT Wages, Shavers Alleges
------------------------------------------------------------------
Najhee Shavers, and other similarly situated individuals v.
Brothers Bless LLC, and Temesgen B. Majjamo, individually, Case
3:22-cv-01088 (M.D. Fla., Oct. 7, 2022) seek to recover overtime
wages, liquidated damages, costs, and reasonable attorney's fees
under the provisions of the Fair Labor Standards Act.
The Plaintiff was employed as attendant from January 17, 2022 to
June 30, 2022, and worked a total of 60 hours weekly and was unable
to take bonafide lunch periods. The Plaintiff worked a substantial
amount of overtime hours, and she was paid for all her hours, but
at her regular rate. The total amount of alleged unpaid wages is
$2,990.00, the Plaintiff claims.
On June 30, 2022, the Plaintiff resigned to pursue better
employment opportunities, but the Defendants refused to pay the
Plaintiff her last week of work, she claims.
Brothers Bless operates a BP gas station and convenience store
located at 1451 Dunn Ave. Jacksonville, Florida.[BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd. Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
CARDINAL LOGISTICS: Nunley Suit Moved to San Bernardino Super. Ct.
------------------------------------------------------------------
Judge Fred W. Slaughter of the U.S. District Court for the Central
District of California remands the case, TONY NUNLEY, individually
and on behalf of all others similarly situated, Plaintiff v.
CARDINAL LOGISTICS MANAGEMENT CORPORATION, a North Carolina
corporation; and ROBERT SHEERIN, an individual; and DOES 1 through
100, inclusive, Defendants, Case No. ED CV 22-01255-FWS-SP (C.D.
Cal.), to the Superior Court of the State of California for the
County of San Bernardino.
In this putative class action, the Plaintiff brings claims against
Defendants Cardinal and Sheerin based on (1) violations of the Fair
Credit Reporting Act ("FCRA"), specifically 15 U.S.C. Sections
1681b(b)(2)(A), d(a)(1)(B), and m(a)(3); (2) violations of the
California Investigative Consumer Reporting Agencies Act ("ICRAA"),
Cal. Civ. Code Sections 1786, et seq.; and (3) violations of the
California Consumer Credit Reporting Agencies Act ("CCRAA"), Cal.
Civ. Code Sections 1785.1, et seq.
The Plaintiff seeks to bring the action on behalf of "all current,
former, and prospective employees of Defendants who applied for a
job with Defendants and a background check was performed beginning
five (5) years preceding the filing of the Complaint up until the
date that final judgment is entered in this action."
The Plaintiff alleges the Defendants employed him with duties that
included, but were not limited to, driving and delivering
appliances. He applied for work with them in February 2021 and
stopped working for them in October 2021. He alleges the Defendants
purported to provide consumer report disclosures to him, and
requested his authorization to procure consumer reports and
background checks for purposes of employment. He also alleges that
the Defendants received consumer reports relating to him in July
2019 and February 2020 as part of an employment background
screening, but did not provide him with the required disclosures or
receive proper authorization to obtain the reports.
The Plaintiff alleges the disclosures the Defendants provided were
inadequate in that they included "superfluous" and "extraneous"
information; were "buried with small font in a lengthy employment
package with dense text that contained extraneous information";
were not accompanied by a summary of his rights under 15 U.S.C.
Section 1681m(a)(3) or Cal. Civ. Code Section 1786.22; and included
a third-party liability waiver. He further alleges the Defendants
did not obtain proper authorization before procuring consumer
reports relating to him, did not provide adequate notice to him of
the source of the reports, and "routinely acquire consumer,
investigative, and/or consumer credit reports to conduct background
checks."
The Plaintiff alleges that, as a result of the Defendants' unlawful
procurement of background reports by way of their inadequate
disclosures and authorizations, he has "been deprived of his
consumer rights and prevented from making informed decisions about
whether to permit the Defendants to obtain his personal
information." He "seeks some of the statutory remedies" available
under the FCRA, ICRAA, and CCRAA.
The Plaintiff initially filed the action in California Superior
Court, San Bernardino County, on May 11, 2022, and served the
Defendant on June 20, 2022. On July 19, 2022, the Defendant timely
removed the matter to this Court, asserting federal jurisdiction is
proper based on both federal question jurisdiction, 28 U.S.C.
Section 1331, and diversity jurisdiction as amended by the Class
Action Fairness Act of 2005 ("CAFA"), id. Sections 1332(d), 1453,
1711-15. The Plaintiff then filed the Motion on Aug. 18, 2022.
The Plaintiff argues the action should be remanded to state court
because the Complaint's allegations do not sufficiently demonstrate
more than a bare procedural violation of the FCRA, and thus does
not set forth a concrete and particularized injury in fact required
for Article III standing. The Defendant argues the action should
remain in federal court because the Complaint alleges: (1)
violations of the Plaintiff's substantive privacy rights; (2) a
total lack of certain disclosures; (3) the Plaintiff was "actually
confused" and could not protect his legal rights; and (4) he was
deprived of his consumer rights, all of which support finding the
Complaint demonstrates an injury in fact.
Judge Slaughter finds that the crux of the Complaint is that the
Defendants did not comply with the technical authorization and
disclosure requirements of the FCRA. This is the kind of "bare
procedural injury" of the FCRA contemplated by TransUnion and
Spokeo II. The Complaint does not allege, nor fairly permit the
inference that, the Plaintiff would have taken any action, or
avoided any nonspeculative harm, if the Defendant had complied with
the FCRA's requirements. Therefore, it does not demonstrate Article
III standing, and the Court must remand the action.
Accordingly, Judge Slaughter finds the Complaint does not
adequately plead a "concrete" injury in fact for purposes of
Article III standing.
The parties devote some of their attention to arguments regarding
the Court's subject matter jurisdiction apart from Article III
standing. The Plaintiff argues that, even if he has Article III
standing, the Defendant is unable to establish subject matter
jurisdiction under CAFA, because its calculations of the amount in
controversy are flawed. He also contends the Defendant's argument
in the Notice of Removal that Sheerin was fraudulently joined to
destroy diversity jurisdiction is irrelevant for purposes of CAFA
jurisdiction, which requires only minimal diversity.
The Defendant disputes the Plaintiff's assertions on their merits,
and also notes that the court has federal question jurisdiction
over this matter because the Complaint pleads violations of the
Fair Credit Reporting Act, a federal statute. In Reply, the
Plaintiff does not substantively address the Defendant's assertion
that federal question jurisdiction exists.
Because the Complaint alleges the Defendants violated a federal law
-- the FCRA -- Judge Slaughter would ordinarily find the Court has
subject matter jurisdiction arising under federal question
jurisdiction, based on the purported violations of the FCRA pleaded
in the Complaint. But the Plaintiff lacks Article III standing, and
therefore, the Court lacks subject matter jurisdiction over this
matter regardless.
For the foregoing reasons, Judge Slaugher grants the Motion to
Remand. He denies a moot the Defendant's Motion to Dismiss set for
hearing on Nov. 3, 2022, at 10:00 a.m. He remands the case to
California Superior Court, San Bernardino County.
A full-text copy of the Court's Oct. 5, 2022 Order is available at
https://tinyurl.com/2p92fvbj from Leagle.com.
CATAPULT HEALTH: Sagna Labor Suit Removed to E.D. Pennsylvania
--------------------------------------------------------------
The case styled CHERITA SAGNA, individually and for others
similarly situated, Plaintiff v. CATAPULT HEALTH PA, Defendant,
Case No. 220802781, was removed from the Court of Common Pleas of
Philadelphia County, Pennsylvania, to the U.S. District Court for
the Eastern District of Pennsylvania on Oct. 6, 2022.
The Clerk of Court for the Eastern District of Pennsylvania
assigned Case No. 2:22-cv-03975 to the proceeding.
The complaint alleges Defendant violated the Pennsylvania Minimum
Wage Act by not paying Plaintiff and the putative class members at
their regular rates for all hours worked up to 40 hours in a
workweek and at time and a half for all hours worked over 40 hours
in a workweek.
Catapult Health PA is a home health care service in Addison,
Texas.[BN]
The Defendant is represented by:
Matthew J. Hank, Esq.
Tanner McCarron, Esq.
LITTLER MENDELSON, P.C.
Three Parkway 1601 Cherry Street, Suite 1400
Philadelphia, PA 19102-1321
CENTRAL PARK: Ademi Sues Over Restaurant Servers' Unpaid Wages
--------------------------------------------------------------
SKENDER ADEMI, on behalf of himself, FLSA Collective Plaintiffs,
and the Class, Plaintiff v. CENTRAL PARK BOATHOUSE, LLC, and DEAN
POLL, Defendants, Case No. 1:22-cv-08535 (S.D.N.Y., Oct. 6, 2022)
is brought pursuant to the Fair Labor Standards Act and the New
York Labor Law to recover from Defendants unpaid overtime, due to
an invalid tip credit; unreimbursed costs for maintaining uniforms;
unpaid wages due to improper meal credit deductions; unlawful
retaliation; statutory penalties; liquidated damages; and
attorneys' fees and costs.
The Plaintiff was hired by the Defendants to work as a server for
their restaurant in New York from January 2011 until present.
Central Park Boathouse, LLC owns and operates a restaurant called
Loeb Boathouse located in New York.[BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, 8th Floor
New York, NY 10011
Telephone: (212) 465-1180
Facsimile: (212) 465-1181
CHLB LLC: Thomas Suit Seeks to Recover Untimely Payment of Wages
----------------------------------------------------------------
CHERICE THOMAS, on behalf of herself and other aggrieved employees,
Plaintiff v. CHLB, LLC d/b/a COLLEGE MEDICAL CENTER; and DOES 1 to
100, inclusive, Defendants, Case No. 22STCV33026 (Cal. Sup. Ct.,
October 7, 2022) brings this complaint seeking for penalties
against the Defendant for himself and all other current and former
aggrieved employees pursuant to the Private Attorneys' General Act
of 2004 of California Labor Code.
The Plaintiff asserts these claims:
-- The Defendant failed to pay his and other aggrieved
employees' wages for all hours worked at the legal minimum wage;
-- The Defendant failed to pay them overtime compensation at
the applicable overtime rate of pay for all hours worked in excess
of 40 per workweek;
-- The Defendant failed to compensate them for workdays that
they were not provided with legally required and compliant meal
periods;
-- The Defendant failed to timely pay them for earned wages
during employment; and
-- The Defendant failed to provide them with complete and
accurate wage statements.
The Plaintiff has filed a PAGA Claim Notice with the Labor and
Workforce Development Agency (LWDA) on July 11, 2022 and provided
notice to the Defendants by certified mail. However, the LWDA
failed to provide the parties notice within 60 days of the date of
the Plaintiff's PAGA Claim Notice that the LWDA intends to
investigate the Plaintiff's claims. Thus, the Plaintiff is entitled
to recover civil penalties for the Defendants' violations of
California Labor Code.
CHLB, LLC d/b/a College Medical Center operates a hospital. [BN]
The Plaintiff is represented by:
Joseph Lavi, Esq.
Vincent C. Granberry, Esq.
Melissa A. Huether, Esq.
LAVI & EBRAHIMIAN, LLP
8889 W. Olympic Blvd., Suite 200
Beverly Hills, CA 90211
Tel: (310) 432-0000
Fax: (310) 432-0001
E-mail: jlavi@lelawfirm.com
vgranberry@lelawfirm.com
mhuether@lelawfirm.com
wht3@lelawfirm.com
CHLOE CONSTRUCTION: Charles Sues Over Failure to Pay OT Wages
-------------------------------------------------------------
The case, LUIS CHARLES, on behalf of himself and others similarly
situated in the proposed FLSA Collective Action, Plaintiff v. CHLOE
CONSTRUCTION LLC, and JACKY PIAMENTA, Defendants, Case No.
1:22-cv-08596 (S.D.N.Y., October 9, 2022) arises from the
Defendants' alleged violations of the Fair Labor Standards Act and
the New York Labor Law.
The Plaintiff has worked for the Defendants' construction and
renovation company as a painter from approximately May 2022 to,
through and including September 1, 2022.
According to the complaint, the Defendant required the Plaintiff
and other similarly situated workers to work more than 40 hours per
week. However, the Defendant willfully failed to pay them overtime
premium at the rate of one and one-half times their regular rates
of pay for all hours worked in excess of 40 per workweek, and
willfully failed to pay them additional compensation of one hour's
pay at the basic minimum hourly wage rate for each day during which
their shifts spread over more than 10 hours. In addition, the
Defendants did not state the correct gross wages for any employee
on any pay statements as required by NYLL or deductions from the
correct gross wages. The Defendants also failed to keep records of
the Plaintiff and other similarly situated employees' hours worked
because they did not require them to keep track of their time.
Moreover, the Defendants failed to post notices regarding their
wages, failed to provide them with accurate wage statements as well
as with any notice of their rate of pay, employer's regular pay
day, and such other information as required by NYLL, says the
suit.
On behalf of himself and FLSA Collective Plaintiffs, the Plaintiff
seeks to recover unpaid overtime wages, spread-of-hours pay, unpaid
wages for failure to pay timely wages, liquidated damages in an
amount equal to the total amount of wages found to be due,
statutory damages, pre- and post-judgment interest, reasonable
attorneys' fees and the costs and disbursements of this action, and
other relief as the Court deems just and proper.
Chloe Construction LLC operates as a construction and renovation
company owned by Jacky Piamenta.[BN]
The Plaintiff is represented by:
Joshua Levin-Epstein, Esq.
LEVIN-EPSTEIN & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4700
New York, NY 10165
Tel: (212) 792-0048
E-mail: Jason@levinepstein.com
CJ LOGISTICS: Segovia Labor Suit Removed to C.D. California
-----------------------------------------------------------
The case styled ANTONIO SEGOVIA as an individual and on behalf of
all others similarly situated, Plaintiff v. CJ LOGISTICS AMERICA
LLC, a Delaware limited liability company; DSC LOGISTICS, INC., an
Indiana Corporation; and DOES 1 through 100, Defendants, Case No.
CIVSB2215492, was removed from the Superior Court of the State of
California, County of San Bernardino, to the U.S. District Court
for the Central District of California on Oct. 6, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 5:22-cv-01753 to the proceeding.
The Complaint asserts the following causes of action pursuant to
the California Labor Code including: (i) failure to pay minimum
wages; (ii) failure to pay overtime wages; (iii) failure to provide
meal periods; (iv) failure to provide rest periods; (v) failure to
keep accurate wage statements; and (vi) unfair business practices
pursuant to California Business and Professions Code.
CJ Logistics America LLC provides integrated global supply chain
services.[BN]
The Defendant is represented by:
Y. Angela Lam, Esq.
MICHAEL BEST & FRIEDRICH LLP
444 West Lake Street, Suite 3200
Chicago, IL 60606
Telephone: (312) 222-0800
Facsimile: (312) 222-0818
Email: yalam@michaelbest.com
CONCEPTS OF INDEPENDENCE: Fails to Pay OT Wages, Kirton Claims
--------------------------------------------------------------
JUDY KIRTON, on behalf of herself and all other persons similarly
situated, Plaintiff v. CONCEPTS OF INDEPENDENCE, INC., Defendant,
Case No. 1:22-cv-08552 (S.D.N.Y., October 7, 2022) brings this
complaint as a collective action against the Defendant as a result
of its alleged violations of the overtime provisions of the Fair
Labor Standards Act and the New York Labor Law.
The Plaintiff was employed by the Defendant as an hourly-paid
clerical worker from in or about 2000 until in or about August
2021.
The Plaintiff claims that she regularly worked more than 40 hours
per week throughout her employment with the Defendant. However, the
Defendant deprived her of her lawfully earned overtime compensation
at the rate of one and one-half times her regular rates of pay for
all hours she has worked in excess of 40 per workweek. Instead, she
was paid “straight-time” at her regular hourly rate for all
hours she has worked, including those hours worked over 40 hours in
a workweek. In addition, the Defendant failed to provide her with a
written notice of her rate of pay and other information upon hire,
and failed to provide her with an accurate wage statement each pay
period indicating the number of overtime hours worked, overtime
rate of pay and other information, says the Plaintiff.
The Plaintiff seeks to recover all unpaid wages and an additional
and equal amount as liquidated damages, for herself and all other
similarly situated employees, as well as reasonable attorneys' fees
and the costs incurred in prosecuting these claims, pre- and
post-judgment interest, and other relief as the Court deems just
and proper.
Concepts of Independence, Inc. is a Consumer Directed Personal
Assistance Services provider. [BN]
The Plaintiff is represented by:
Peter A. Romero, Esq.
LAW OFFICE OF PETER A. ROMERO PLLC
490 Wheeler Road, Suite 250
Hauppauge, NY 11788
Tel: (631) 257-5588
E-mail: promero@romerolawny.com
COSTCO WHOLESALE: Denial of Bid to Intervene Under Appeal
---------------------------------------------------------
Costco Wholesale Corp. disclosed in its Form 10-K Annual Report for
the fiscal year ended August 28, 2022 filed with the Securities and
Exchange Commission on October 4, 2022, that the proposed
intervenor of the class action labor suit captioned Nevarez v.
Costco Wholesale Corp. (Case No. 2:19-cv-03454; C.D. Cal.) appealed
the denial of her motion to intervene case.
In March 2019, employees filed a class action against the Company
alleging claims under California law for failure to pay overtime,
to provide meal and rest periods and itemized wage statements, to
timely pay wages due to terminating employees, to pay minimum
wages, and for unfair business practices. Relief is sought under
the California Labor Code, including civil penalties and attorneys'
fees. Nevarez v. Costco Wholesale Corp. (Case No. 2:19-cv-03454;
C.D. Cal.). The Company filed an answer denying the material
allegations of the complaint.
In December 2019, the court issued an order denying class
certification.
In January 2020, the plaintiffs dismissed their Labor Code claims
without prejudice, and the court remanded the action to state
court.
Settlement for an immaterial amount was agreed upon in February
2021.
Final court approval of the settlement was granted on May 3, 2022.
A proposed intervenor has appealed the denial of her motion to
intervene.
Costco Wholesale Corporation -- https://www.costco.com/ -- is an
American multinational corporation which operates a chain of
membership-only big-box retail stores.[BN]
COSTCO WHOLESALE: Denies Material Allegations in Diaz Labor Suit
----------------------------------------------------------------
Costco Wholesale Corp. disclosed in its Form 10-K Annual Report for
the fiscal year ended August 28, 2022 filed with the Securities and
Exchange Commission on October 4, 2022, that the Company denied the
material allegations in the labor suit captioned Diaz v. Costco
Wholesale Corp. (Case No. 22STCV09513; Los Angeles Superior Court).
In March 2022, an employee filed a class action against the Company
alleging violations of the California Labor Code regarding the
failure to: pay wages, provide meal and rest periods, provide
accurate wage statements, timely pay final wages, and reimburse
business expenses. Diaz v. Costco Wholesale Corp. (Case No.
22STCV09513; Los Angeles Superior Court).
The Company filed an answer denying the material allegations.
Costco Wholesale Corporation -- https://www.costco.com/ -- is an
American multinational corporation which operates a chain of
membership-only big-box retail stores.[BN]
COSTCO WHOLESALE: Faces Rodriguez Labor Suit in Alameda Court
-------------------------------------------------------------
Costco Wholesale Corp. disclosed in its Form 10-K Annual Report for
the fiscal year ended August 28, 2022 filed with the Securities and
Exchange Commission on October 4, 2022, that it is facing a labor
suit captioned Rodriguez v. Costco Wholesale Corp. (Case No.
22CV012847) in the Alameda Superior Court.
In June 2022, a business center employee raised similar claims
alleging failure to provide seating to employees who work at
membership refund desks in California warehouses and business
centers. Rodriguez v. Costco Wholesale Corp.(Case No. 22CV012847;
Alameda Superior Court). The complaint seeks relief under the
California Labor Code, including civil penalties and attorneys'
fees. The Company filed an answer denying the material allegations
of the complaint.
Costco Wholesale Corporation -- https://www.costco.com/ -- is an
American multinational corporation which operates a chain of
membership-only big-box retail stores.[BN]
COSTCO WHOLESALE: Lane Suit Settlement Gets Court Approval
----------------------------------------------------------
Costco Wholesale Corp. disclosed in its Form 10-K Annual Report for
the fiscal year ended August 28, 2022 filed with the Securities and
Exchange Commission on October 4, 2022, that the settlement for the
class action against the Company alleging violations of the
California Labor Code filed by a depot employee in December 2018
captioned Lane v. Costco Wholesale Corp. (Case No. CIVDS 1908816)
gets court approval.
In December 2018, a depot employee raised similar claims, alleging
that depot employees in California did not receive suitable seating
or reasonably comfortable workplace temperature conditions. Lane v.
Costco Wholesale Corp. (Case No. CIVDS 1908816; San Bernardino
Superior Court). The Company filed an answer denying the material
allegations of the complaint.
In October 2019, the parties settled for an immaterial amount the
seating claims on a representative basis, which received court
approval in February 2020.
The parties settled the temperature claims for an immaterial amount
in April 2022, and court approval was received in May 2022.
Costco Wholesale Corporation -- https://www.costco.com/ -- is an
American multinational corporation which operates a chain of
membership-only big-box retail stores.[BN]
CROWN WASTE: Fails to Pay Sanitation Workers' OT Wages, Sims Says
-----------------------------------------------------------------
Ruben Sims, on behalf of himself and others similarly situated in
the proposed FLSA Collective Action v. Crown Waste Corp., and
Cristopher Antonacci (a/k/a Chris Antenacci), Case 1:22-cv-06047
(E.D.N.Y., Oct. 8, 2022) seeks recover unpaid overtime wages,
untimely paid wages, liquidated and statutory damages, pre- and
post-judgment interest, and attorneys' fees and costs, and
injunctive and declaratory relief pursuant to the Fair Labor
Standards Act, the New York State Labor Law, and NYLL's Wage Theft
Prevention Act.
From February 2022 to August 2022, Mr. Sims was paid a flat salary
of $900 per week as sanitation worker. The Plaintiff was required
to work in excess of 40 hours per week, but never received an
overtime premium of one and one-half times his regular rate of pay
for those hours, he claims. Accordingly, the Plaintiffs assert that
they are entitled to damages of at least $150 per week during which
the violations occurred.
Crown Waste is a sanitation company located at 1 Plainview Road
Bethpage, New York.[BN]
The Plaintiffs are represented by:
Jason Mizrahi, Esq.
Joshua Levin-Epstein, Esq.
LEVIN-EPSTEIN & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4700
New York, NY 10165
Telephone: (212) 792-0048
E-mail: Jason@levinepstein.com
ECCO RETAIL: Amort Labor Suit Removed to N.D. California
--------------------------------------------------------
The case styled WILLIAM M. AMORT, individually and on behalf of all
others similarly situated, Plaintiff v. ECCO RETAIL, LLC; ECCO USA,
INC.; ECCO; and DOES 1 through 20, inclusive, Defendants, Case No.
22-CIV-03050, was removed from the Superior Court of the State of
California in and for the County of San Mateo, to the U.S. District
Court for the Northern District of California on Oct. 6, 2022.
The Clerk of Court for the Northern District of California assigned
Case No. 3:22-cv-05812 to the proceeding.
The complaint sets forth eight putative class-wide causes of action
under the California Labor Code including failure to pay minimum
wages; failure to pay overtime wages; failure to provide meal
periods; failure to permit rest breaks; failure to reimburse
business expenses; failure to provide accurate itemized wage
statements; failure to pay wages during employment; and failure to
pay all wages due upon separation of employment. The complaint
further alleges Defendants' violation of the California Business
and Professions Code.
Ecco Retail, LLC is a shoe manufacturer and retailer.[BN]
The Defendants are represented by:
Scott P. Jang, Esq.
Andrew J. Kozlow, Esq.
Spencer C. Ladd, Esq.
JACKSON LEWIS P.C.
50 California Street, 9th Floor
San Francisco, CA 94111-4615
Telephone: (415) 394-9400
Facsimile: (415) 394-9401
E-mail: Scott.Jang@jacksonlewis.com
Spencer.Ladd@jacksonlewis.com
Andrew.Kozlow@jacksonlewis.com
EDGEWELL PERSONAL: Souter Appeals Case Dismissal to 9th Cir.
------------------------------------------------------------
LAUREN SOUTER is taking an appeal from a court order dismissing her
lawsuit entitled Lauren Souter, on behalf of herself and all others
similarly situated, Plaintiff, v. Edgewell Personal Care Company,
et al., Defendants, Case No. 3:20-cv-01486-TWR-BLM, in the U.S.
District Court for the Southern District of California.
The Plaintiff initiated the putative class action against the
Defendants alleging misleading representations associated with
their antibacterial hand wipes, known as "Wet Ones," which she
purchased multiple times during the class period. She alleges that
the misleading representations violate California's Unfair
Competition Law ("UCL"), False Advertising Law ("FAL") and the
California Consumer Remedies Act ("CLRA"). The Plaintiff further
alleges breaches of express warranty and quasi-contract.
The Plaintiff filed her initial Complaint on July 31, 2020. On Oct.
6, 2020, the Defendants moved to dismiss the Plaintiff's Complaint
on five grounds: (1) lack of constitutional and statutory standing,
(2) failure to satisfy the heightened pleading standard under
Federal Rule of Civil Procedure 9(b), (3) failure to satisfy the
reasonable consumer test, (4) primary jurisdiction, and (5)
preemption. On June 7, 2021, the Court granted the Defendants'
motion to dismiss with leave to amend because the Plaintiff failed
to satisfy the reasonable consumer test.
The Plaintiff filed her First Amended Complaint on July 7, 2021. On
Aug. 6, 2021, the Defendants moved to dismiss on the same five
grounds. On Feb. 16, 2022, the Court granted the Defendants' motion
to dismiss with leave to amend because the Plaintiff, again, did
not satisfy the reasonable consumer test.
The Plaintiff filed her Second Amended Complaint on March 18, 2022.
On April 8, 2022, the Defendants moved to dismiss the Second
Amended Complaint on four grounds: (1) lack of constitutional and
statutory standing; (2) failure to satisfy the reasonable consumer
test; (3) preemption; and (4) primary jurisdiction. They also
maintain that the Plaintiff's claim for equitable relief should be
dismissed.
On September 6, 2022, Judge Todd W. Robinson granted the
Defendants' motion to dismiss the Plaintiff's Second Amended
Complaint. Judge Robinson held that the Plaintiff's allegations
that the Defendants' Efficacy Representations are misleading and
false, is two pronged: (1) Wet Ones are ineffective under
real-world conditions, and (2) Wet Ones do not kill numerous common
germs that are transmissible by hands. Judge Robinson ruled that
the Plaintiff has failed to adequately plead either that Wet Ones
are ineffective in real world conditions, or that the Defendants'
Efficacy Representations are overestimated because they are based
on "optimal" laboratory conditions. He further held that the Court
did not ask the Plaintiff to provide the complex thought process of
a consumer, but to provide facts to support her claim that a
reasonable consumer would be misled by the Defendants' Efficacy
Representations. The Plaintiff has failed to do so and has
therefore failed to sufficiently state a claim for which relief
could be provided.
For these reasons, the Defendants' motion was granted and the
Plaintiff's claims regarding the Defendants' Efficacy
Representations for failure to satisfy the reasonable consumer test
were dismissed with prejudice.
The appellate case is captioned Lauren Souter v. Edgewell Personal
Care Company, et al., Case No. 22-55898, in the United States Court
of Appeals for the Ninth Circuit, filed on September 29, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant Lauren Souter Mediation Questionnaire was due on
October 6, 2022;
-- Transcript is due on November 28, 2022;
-- Appellant Lauren Souter opening brief is due on January 5,
2023;
-- Appellees Edgewell Personal Care Brands, LLC, Edgewell
Personal Care Company and Edgewell Personal Care, LLC answering
brief is due on February 6, 2023; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief. [BN]
Plaintiff-Appellant LAUREN SOUTER, individually and on behalf of
all others similarly situated, is represented by:
Naomi B. Spector, Esq.
KAMBERLAW, LLP
1501 San Elijo Hills Road, Suite 104-212
San Marcos, CA 92078
Telephone: (310) 400-1053
Defendants-Appellees EDGEWELL PERSONAL CARE COMPANY, et al., are
represented by:
Daniel Eaton, Esq.
SELTZER CAPLAN MCMAHON VITEK
750 B. Street, Suite 2100
San Diego, CA 92101
Telephone: (619) 685-3052
- and -
John W. Moticka, Esq.
STINSON MORRISON HECKER LLP
7700 Forsyth Boulevard
St. Louis, MO 63105
Telephone: (314) 259-4562
EL CENTRO REGIONAL: Kennedy FLSA Suit Removed to S.D. California
----------------------------------------------------------------
The case styled VICTORIA KENNEDY, on behalf of herself and all
others similarly situated, Plaintiff v. EL CENTRO REGIONAL MEDICAL
CENTER, a municipal hospital; and DOES 1 through 100, inclusive,
Defendants, Case No. ECU002399, was removed from the Superior Court
of California for the County of Imperial to the U.S. District Court
for the Southern District of California on Oct. 6, 2022.
The Clerk of Court for the Southern District of California assigned
Case No. 3:22-cv-01522-BEN-MDD to the proceeding.
Plaintiff Victoria Kennedy commenced this wage and hour action on
May 23, 2022, against ECRMC in the Imperial County Superior Court
as a putative class action. The original Complaint and subsequent
first amended complaint asserted California state law causes of
action. On September 20, 2022, before ECRMC made an appearance in
the state court action, and upon request by Plaintiff, the Parties
stipulated to permit Plaintiff to file a second amended
complaint(SAC).
The SAC alleges, among other things, that ECRMC violated the FLSA
by (1) failing to pay "overtime premiums at the correct regular
rate of pay to Plaintiff and the Collective Class for all their
overtime hours worked"; and (2) "failing to record, report, and/or
preserve records of hours worked by Plaintiff and the Collective
Class."
El Centro Regional Medical Center is an acute-care medical center
based in El Centro, California.[BN]
The Defendant is represented by:
Jason W. Kearnaghan, Esq.
Y. Douglas Yang, Esq.
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
333 South Hope Street, 43rd Floor
Los Angeles, CA 90071-1422
Telephone: (213) 620-1780
Facsimile: (213) 620-1398
E-mail jkearnaghan@sheppardmullin.com
dyang@sheppardmullin.com
ESA MANAGEMENT: Saflor Labor Suit Removed to N.D. California
------------------------------------------------------------
The case styled RUBIAN SAFLOR, individually, and on behalf of
others similarly situated, Plaintiff v. ESA MANAGEMENT, LLC, a
Delaware limited liability company, and DOES 1 through 50,
inclusive, Defendant, Case No. 22-CIV-03312, was removed from the
Superior Court for the State of California, County of San Mateo, to
the U.S. District Court for the Northern District of California on
Oct. 6, 2022.
The Clerk of Court for the Northern District of California assigned
Case No. 3:22-cv-05800 to the proceeding.
On August 12, 2022, the Plaintiff filed a class action complaint
against Defendant asserting the following causes of actions: (1)
failure to provide required meal periods; (2) failure to provide
required rest periods; (3) failure to pay overtime wages; (4)
failure to pay minimum wages; (5) failure to pay all wages due to
discharged and quitting employees; (6) failure to maintain required
records; (7) failure to furnish accurate itemized wage statements;
(8) failure to indemnify employees for necessary expenditures
incurred in discharge of duties; (9) unfair and unlawful business
practices; and (10) penalties under the Labor Code Private
Attorneys General Act.
ESA Management, LLC is an extended stay hotel management company in
the U.S.[BN]
The Defendant is represented by:
Rebecca M. Aragon, Esq.
LITTLER MENDELSON, P.C.
633 West 5th Street, 63rd Floor
Los Angeles, CA 90071
Telephone: (213) 443-4300
Facsimile: (213) 443-4299
- and -
Nathaniel H. Jenkins, Esq.
LITTLER MENDELSON, P.C.
500 Capitol Mall Suite 2000
Sacramento, CA 95814
Telephone: (916) 830-7200
Facsimile: (916) 561-0828
E-mail: njenkins@littler.com
ESTUNIGA INC: Fails to Pay Video Editors' Proper Wages Under FLSA
-----------------------------------------------------------------
Isaiah Valencia and Nicolas Chae, individually, and on behalf of
all others similarly situated as Class Representatives v.
Estuniga, Inc., Jose Zuniga and Juan Zuniga, Case
1:22-cv-06049-LDH-RER (E.D.N.Y., Oct. 8, 2022) seeks to recover
unpaid minimum and overtime wages, liquidated damages, statutory
damages, reasonable attorneys' fees, costs, and interest, and
declaratory relief pursuant to the Fair Labor Standards Act and the
New York Labor Law.
Plaintiffs Valencia and Chae were employed as video editors by the
Defendants over the past two years, during which time they were
sometimes designated as unpaid interns.
Mr. Valencia claims that he worked without compensation for 6
months starting March 28, 2021. Beginning September 2021, the
Defendants began paying him $1,458.33 every two weeks regardless of
the number of hours he worked, he contends.
While Mr. Chae claims he worked without compensation for four
months starting January 2021. On May 2021, the Defendants began
paying him $2,083 every two weeks regardless of the number of hours
he worked. Both Plaintiffs routinely worked in excess of 40 hours
per week and more than 10 hours in a day, says the suit.
Estuniga is a Florida corporation doing business in the State of
New York.[BN]
The Plaintiffs are represented by:
Robert McCreanor, Esq.
LAW OFFICE OF ROBERT D. MCCREANOR, P.L.L.C.
245 Saw Mill River Rd. Suite 106
Hawthorne, NY 10532
Telephone: (845) 202-1833
E-mail: rmccreanor@wjcny.org
FIRST HIGH-SCHOOL: Robbins Geller Named Lead Counsel in Dagan Suit
------------------------------------------------------------------
In the case, DAGAN INVESTMENTS LLC, Individually and on Behalf of
All Others Similarly Situated, Plaintiff v. FIRST HIGH-SCHOOL
EDUCATION GROUP CO., LTD., SHAOWEI ZHANG, LIDONG ZHU, GUANGZHOU
ZHAO, YUANLIN HU, LONGWATER TOPCO B.V., EQT MID MARKET ASIA III
LIMITED PARTNERSHIP, EQT MID MARKET ASIA III GP B.V., EQT FUND
MANAGEMENT S.À R.L., COLLEEN A. DE VRIES, COGENCY GLOBAL INC., THE
BENCHMARK COMPANY LLC, VALUABLE CAPITAL GROUP LIMITED, TFI
SECURITIES AND FUTURES LIMITED, AMTD GLOBAL MARKETS LIMITED, MAXIM
GROUP LLC, BOUSTEAD SECURITIES, LLC, FUTU INC., US TIGER
SECURITIES, INC. and FOSUN HANI SECURITIES LIMITED, Defendants,
Civil Action No. 1:22-cv-03831-ALC (S.D.N.Y.), Judge Andrew L.
Carter, Jr., of the U.S. District Court for the Southern District
of New York grants Dagan's Motion for Appointment as Lead Plaintiff
and Approval of Selection of Lead Counsel.
The file in Case No. 1:22-cv-03831-ALC will be the master file for
the action. All securities class actions on behalf of purchasers of
First High-School Education Group Co., Ltd. American Depositary
Shares arising out of the same or substantially similar subject
matter subsequently filed in, or transferred to, this District will
be consolidated into this action. The Order will apply to every
such action, absent an order of the Court.
A party objecting to such consolidation, or to any other provisions
of the Order, must file an application for relief from it within 10
days after the action is consolidated into this action. The Order
is entered without prejudice to the rights of any party to apply
for severance of any claim or action, with good cause shown.
Dagan is appointed Lead the Plaintiff pursuant to 15 U.S.C. Section
77z-1(a)(3)(B)(iii). Its selection of the law firms of Robbins
Geller Rudman & Dowd LLP and Abraham, Fruchter & Twersky, LLP as
the Lead Counsel is approved, pursuant to 15 U.S.C. Section
77z-1(a)(3)(B)(v).
The Lead Counsel will have the following responsibilities and
duties on behalf of the Lead Plaintiff and the putative class: (a)
the briefing and argument of any and all motions; (b) the conduct
of any and all discovery proceedings including depositions; (c)
settlement negotiations; (d) the pretrial discovery proceedings and
the preparation for trial and the trial of this matter, and
delegation of work responsibilities to selected counsel as may be
required; (e) the preparation and filing of all pleadings; and (f)
the supervision of all other matters concerning the prosecution or
resolution of the action.
A full-text copy of the Court's Oct. 5, 2022 Order is available at
https://tinyurl.com/2pwvyz29 from Leagle.com.
G.SKILL INT'L: Hurd Bid for Class Cert Withdrawn w/o Prejudice
--------------------------------------------------------------
In the class action lawsuit captioned as TRISTAN HURD, individually
and on behalf of all others similarly situated, v. G.SKILL
INTERNATIONAL ENTERPRISE CO., LTD., AND G.SKILL USA, INC., Case No.
2:22-cv-00685-SSS-MAR (C.D. Cal.), the Hon. Judge Sunshine S. Sykes
entered an order granting stipulation to withrdraw motion for class
certification as follows:
1. The Plaintiff's motion for class certification is
withdrawn without prejudice.
2. The Plaintiff may file a new motion for class
certification in accordance with the schedule that the
Court will set at the scheduling conference.
On September 30, 2022, the Parties filed a Stipulation to Withdraw
Motion for Class Certification.
The Parties wish to withdraw Plaintiff's Motion for Class
Certification without prejudice and allow the Plaintiff to file a
new motion for class certification in accordance with the schedule
that the Court will set at the scheduling conference.
G.Skill is a Taiwanese computer hardware manufacturing company.
A copy of the Court's order dated Oct. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3VcjSRr at no extra charge.[CC]
GEORGIA-PACIFIC WOOD: Suit Seeks to Certify Hourly Employees Class
------------------------------------------------------------------
In the class action lawsuit captioned as BRUCE HARRIS and ROY
McCullum, Individually and on Behalf of All Others Similarly
Situated, v. GEORGIA-PACIFIC WOOD PRODUCTS, LLC, and
GEORGIA-PACIFIC, LLC, , Case No. 1:22-cv-02530-TWT (N.D. Ga.), the
Plaintiffs ask the Court to enter an order:
A. Conditionally certifying the case as a collective action:
"All hourly employees for Georgia-Pacific Wood Products,
LLC, and Georgia-Pacific, LLC since June 24, 2019;"
B. Approving the Plaintiffs' proposed Notice and Consent to
Join and proposed method of distribution including mailing
and emailing;
C. Approving the form and content;
D. Directing the Defendants to produce the requested contact
information of each collective member in an electronically
importable and manipulable electronic format, such as
Excel, within seven days after this Court’s Order is
entered;
E. Allowing for an opt-in period of 90 days, to begin on the
date on which the Defendants produce the collective
members' names and contact information, in which
collective members may submit Consents to Join this
lawsuit as opt-in plaintiffs;
F. Awarding costs and a reasonable attorney’s fee and grant
all other relief to which Plaintiffs may be entitled,
whether specifically prayed for or not.
The Plaintiffs worked as hourly employees for the Defendants
seeking to recover unpaid overtime wages, liquidated damages,
prejudgment interest, costs, and attorneys' fees pursuant to the
Fair Labor Standards Act (FLSA).
Georgia-Pacific manufactures building products, such as plywood,
OSB materials, gypsum boards, and lumber for residential and
commercial builds.
A copy of the Plaintiffs' motion dated Oct. 6, 2022 is available
from PacerMonitor.com at https://bit.ly/3Cs44RX at no extra
charge.[CC]
The Plaintiffs are represented by:
Steven E. Wolfe, Esq.
LEGARE, ATTWOOD & WOLFE, LLC
125 Clairemont Avenue, Suite 380
Decatur, GA 30030
Telephone: (470) 823-4000
Facsimile: (470) 201-1212
E-mail: sewolfe@law-llc.com
- and -
Laura Edmondson, Esq.
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Pkwy, Suite 510
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
E-mail: laura@sanfordlawfirm.com
josh@sanfordlawfirm.com
The Defendants are represented by
A. Craig Cleland, Esq.
Lauren H. Zeldin, Esq.
Harry M. Rowland, III, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
One Ninety-One Peachtree Tower
191 Peachtree St. NE, Suite 4800
Atlanta, GA 30303
Telephone: (404) 881-1300
Facsimile: (404) 870-1732
E-mail: lauren.zeldin@ogletreedeakins.com
craig.cleland@ogletreedeakins.com
harry.rowland@ogletreedeakins.com
GILEAD SCIENCES: Court Won't Allow Review of BCBSA's Dismissal
--------------------------------------------------------------
In the case, IN RE HIV ANTITRUST LITIGATION, Case No.
19-cv-02573-EMC (N.D. Cal.), Judge Edward M. Chen of the U.S.
District Court for the Northern District of California enters an
order:
a. granting in part and denying in part the End-Payor
Plaintiffs' motion for leave to file a motion to
reconsider; and
b. denying the motion to reconsider on the merits to the
extent the Court has given leave to file a motion to
reconsider.
In its prior order, the Court granted the motion to dismiss Blue
Cross Blue Shield Association (BCBSA) reasoning as follows: (1) the
funds at issue belonged to OPM, not BCBSA, and thus payment for
pharmaceutical benefits was not an injury suffered by BCBSA; and
(2) even if BCBSA or the Local Blues bore some risk as
underwriters, that would be future injury and such injury was too
remote given that the funds in the LOCA had never been exhausted.
It also stated that it did not have to decide whether OPM had
authorized BCBSA to file suit or delegated to BCBSA the authority
to file suit because the End-Payor Plaintiffs (EPPs) had defined
the class as excluding federal government entities.
Now pending before the Court is the EPPs' motion for leave to file
a motion for reconsideration of that decision.
First, according to the EPPs, when the Court found that the funds
belonged to the government, and not BCBSA, it did so based on the
facts in the Ninth Circuit case it cited, Goncalves v. Rady
Children's Hospital San Diego, 865 F.3d 1237 (9th Cir. 2017), and
not on the facts presented in the case before it. Thus, they assert
that the Court failed to consider material facts presented to it.
Judge Chen disagrees. In reaching its conclusion that the funds
belonged to the government, he says the Court took note of the
evidence of record which established "the general payment process
where pharmaceutical benefits are at issue." It also took into
account the testimony of BCBSA's 30(b)(6) witness (Ms. Holladay).
To be sure, the Court did quote the statement in Goncalves that
"'OPM, not the carrier, owns the funds'" and go on to say that
"Goncalves answers the question of 'whose money' is used to pay for
benefits." However, its order did not rest solely on its citation
to Goncalves. It evaluated the evidence of record before it.
The EPPs also take issue with the Court's quoting that part of
Goncalves that says that the carrier is not at risk and does not
act as an insurer but rather as a claims processor, with the
government taking the place of a typical insurer.
But, Judge Chen holds that in the instant case, the Court did not
expressly hold that BCBSA (or the Local Blues) did not bear risk as
an underwriter. Rather, it stated that a plaintiff threatened with
future injury has standing to sue if the threatened injury is
certainly impeding, or there is a substantial risk that the harm
will occur. BCBSA has failed to show how it has met this standard
given that there has never been a shortfall in the 60-plus years
that the FEP has been in existence and BCBSA's own admission that
there is no expectation that there will be insufficient funding for
benefits in 2022.
Accordingly, to the extent that the EPPs claim a manifest failure
on the part of the Court based on its references to Goncalves,
Judge Chen disagrees and, therefore, denies the motion for leave to
file a motion for reconsideration.
Next, the EPPs argue that the Court erred by characterizing the
money in the LOCA as OPM's funds because the federal government
contributed only a part of those funds not all (federal employees
contributed the remainder). They also suggest that the FEP is not a
federal government entity because there is a federal statute that
excludes Federal Employee Health Benefits (FEHB) plans from the
definition of "federal health care program."
The problem for the EPPs is that (1) they never cited the statute
above previously (and it is questionable whether that statute is on
point with respect to the issue before the Court) and (2) at the
hearing, both parties essentially framed the question as whether
the money was government money or BCBSA money, Judge Chen points
out. Thus, he says, there was no manifest failure on the part of
the Court.
That being said, Judge Chen holds that the EPPs bring up a fair
point which is that, even if the Court were inclined to view the
FEP (in effect) as a federal government entity, that would simply
mean that the FEP would not be a part of the class as defined. That
would not preclude the FEP from prosecuting its own claim. In other
words, the Court should have decided whether BCBSA has been given
the authority to file suit by the Office of Personnel Management
(OPM) to recover against the Defendants for the alleged
anticompetitive conduct alleged.
As to this issue, Judge Chen grants the EPPs' motion for leave to
file a motion for reconsideration. He says the Court should
consider whether BCBSA can bring suit on behalf of OPM, even if not
as part of the class. However, on the merits, Judge Chen denies the
motion to reconsider.
The question is whether there is a statute, regulation, or contract
provision (in the OPM/BCBSA contract) that gives BCBSA the
authority to file suit on behalf of OPM. Judge Chen has reviewed
the statutes/regulations and contract provisions cited by the EPPs
but finds none of them availing. He concludes that the EPPs'
position on the merits is not persuasive. To be clear, he does not
discount the possibility that OPM-Office of Inspector General (OIG)
could authorize a carrier to file suit on its behalf. The problem
for the EPPs is that there is no record to support that having
happened in the instant case.
Indeed, the EPPs have not even alleged, e.g., that a case
notification was provided to OPM-OIG, how OPM-OIG responded to that
case notification, etc. They only have represented that OPM is
aware of this lawsuit and the motions challenging BCBSA's standing.
That fact, according to Judge Chen, is not sufficient to establish
implied authorization for BCBSA to file a lawsuit, particularly in
light of the procedure outlined in the FEHB Program Carrier
Letter.
For the foregoing reasons, the motion for leave to file a motion
for reconsideration is granted in part and denied in part. To the
extent the motion is granted, and a motion to reconsider allowed,
Judge Chen denies the motion to reconsider on the merits, finding
that the evidence of record is insufficient to support the EPPs'
position that BCBSA has been authorized to file suit on behalf of
the FEP.
The Order disposes of Docket No. 1347.
A full-text copy of the Court's Oct. 5, 2022 Order is available at
https://tinyurl.com/mr3p8m39 from Leagle.com.
HIRSHBERG ACCEPTANCE: Clerk to Set Oral Argument in Rodriguez Suit
------------------------------------------------------------------
In the case, KATHRYN M. RODRIGUEZ, Plaintiff-Appellant v. HIRSHBERG
ACCEPTANCE CORP. and MODERN FINANCIAL SERVICES CORP.,
Defendants-Appellees, SC: 164454, COA: 356368 (Mich.), the Supreme
Court of Michigan enters an order directing the Clerk to schedule
oral argument on the application for leave to appeal the April 21,
2022 judgment of the Court of Appeals.
The parties will address whether the Court of Appeals correctly
interpreted MCR 3.501(A)(5) to mean that, where a statute provides
for a minimum penalty irrespective of actual damages, no class
action may be maintained on the basis of that statute, including a
class action for actual damages and equitable relief, unless the
statute expressly provides otherwise.
The Michigan Bankers Association and the Consumer Law Section of
the State Bar of Michigan are invited to file briefs amicus curiae.
Other persons or groups interested in the determination of the
issue presented may move the Court for permission to file briefs
amicus curiae.
A full-text copy of the Court's Oct. 5, 2022 Order is available at
https://tinyurl.com/3dcv33wd from Leagle.com.
HONEYWELL INT'L: Third Bid to Dismiss Steward Suit Granted in Part
------------------------------------------------------------------
In the case, ROGER STEWARD, et al., on behalf of themselves and all
others similarly situated, Plaintiffs v. HONEYWELL INTERNATIONAL,
INC., Defendant, Case No. 18-cv-1124-SMY (S.D. Ill.), Judge Staci
M. Yandle of the U.S. District Court for the Southern District of
Illinois grants in part and denies in part Honeywell's Third Motion
to Dismiss for Failure to State a Claim.
In this putative class action, the Plaintiffs allege that from 1959
to 2017, a plant making uranium hexafluoride operated on the
outskirts of Metropolis, Illinois and emitted air contaminated with
radioactive and other toxic materials. They further allege that
throughout the years, this material settled into the soil and
buildings around Metropolis causing property loss and damages. The
Plaintiffs seek compensation from Honeywell, which now owns the
plant.
Honeywell and its predecessor operated a nuclear plant on the
outskirts of Metropolis, Illinois from 1959 until late 2017. The
Plant processed uranium ore into uranium hexafluoride ("UF6"). The
UF6 generated by the Plant was highly toxic radioactive gas which
other facilities acquired for purposes of enriching or purifying
into fuel for nuclear reactors or bombs. The air monitoring system
inside the Plant was inadequate and grossly underestimated the
actual uranium levels present, resulting in the Plant consistently
underreporting uranium contamination to federal regulators. The
Plant continuously used a system of fans and ducts to vent air from
within to the atmosphere while in operation. This air was laden
with radioactive and non-radioactive hazardous waste. Even after
operations ceased, the Plant continues to leak radioactive and
hazardous contamination offsite into the Metropolis community
through air and groundwater.
The Plaintiffs reside within 0.4 to 2.5 miles of the Plant. Their
properties have been contaminated by radioactive material and other
toxic substances emanating from the Plant. Dozens of samples taken
on and around the Plaintiffs' properties and at other locations
throughout Metropolis confirm an elevated presence of radioactive
particles which are traced to the Plant. In addition, testing of
soil and homes throughout Metropolis reveal microscopic particles
of uranium, thorium, plutonium, and radium emitted from the Plant.
Those particles are repeatedly re-suspended in the air through
normal household activities like playing, cleaning, gardening, or
simply walking through the yard or up the stairs.
The risk of cancer posed by the extensive carcinogenic
contamination in the Metropolis area correlates with abnormally
high cancer rates in the area and low home values. The Plant has
contaminated Plaintiffs' properties and other properties throughout
Metropolis in excess of state and federal dose requirements,
including those set forth in 10 C.F.R. Part 20 and its predecessors
and 40 C.F.R. Part 190.
The Plaintiffs seek to represent a class of all property owners
within the town of Metropolis, Illinois and property owners within
3 miles of the Plant. They seek damages for loss of use and
enjoyment or property, diminution of property value, annoyance,
inconvenience, punitive and property damage, including remediation
and medical monitoring as well as injunctive and declaratory relief
as necessary to protect human health and the environment.
In the Second Amended Complaint, the Plaintiffs assert violations
of the Price Anderson Act ("PAA"), 42 U.S.C. Section 2210 et seq.
and assert state law claims of negligence/gross negligence,
trespass, nuisance, strict liability, and medical monitoring (Count
I); state law claims related to non-radioactive hazardous
substances (Count II); and federal claims pursuant to the
Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. Section 9601, et seq. (Count III) and the Clean Air
Act, 42 U.S.C. Section 7401, et seq. (Count IV).
Now pending before the Court is Honeywell's Third Motion to Dismiss
for Failure to State a Claim. It argues that the Plaintiffs have
failed to state a cognizable claim under the PAA because they: (1)
fail to allege that they were exposed to radiation in excess of the
Nuclear Regulatory Commission ("NRC") qualifying radiation dose
limits; (2) have failed to plead exposure in terms of a "total
effective dose equivalent" -- which Honeywell maintains is "a
necessary element of a PAA claim"; (3) failed to plead that they
were actually exposed to an NRC-defined qualifying level of
radiation; and (4) fail to plead an actual injury from the alleged
radiation exposure.
Judge Yandle explains that a plaintiff must establish four elements
to prevail on a claim under the PAA: (1) defendant released
radiation into the environment in excess of federal regulatory
limits; (2) plaintiff was exposed to this radiation; (3) plaintiff
has injuries; and (4) radiation was the cause of those injuries. In
the present case, she says Fed. R. Civ. P. 8 only requires notice
pleading and the Plaintiffs' allegations in the 90-page Second
Amended Complaint are more than adequate to put Honeywell on notice
of the claims asserted against it.
The Plaintiffs allege that Honeywell violated federal regulatory
standards, including 10 C.F.R. Section 20.1301 and 10 C.F.R.
Section 20.1302 (and their predecessors 10 C.F.R. Section 20.105
and 10 C.F.R. Section 20.106). They further allege that it
underreported the types and amounts of radioactive material
released by the Plant and that "the Plant has contaminated their
properties in excess of state and federal dose requirements
including, to the extent they are applicable, those set forth in 10
C.F.R. Part 20." Other allegations include that the Plaintiffs'
"property has been contaminated in excess of the limits established
in 10 C.F.R. Section 20.1301, et seq. and its predecessors" and
that "testing on other properties throughout the Class Area has
also revealed levels of contamination in excess of limits
established in 10 C.F.R. Section 20.1301, et seq. and its
predecessors."
These allegations, among many others in the Second Amended
Complaint, according to Judge Yandle, satisfy the Plaintiffs'
pleading requirements under Rule 8. As such, the Second Amended
Complaint states a colorable claim.
Finally, Judge Yandle holds that allowing a claim for
ultrahazardous/strict liability would be inconsistent with the PAA
and would create the possibility that Honeywell would meet the
federal standard of care mandated, but still be held strict liable
under Illinois state law. Therefore, she dismisses the Plaintiff's
ultrahazardous/strict liability claim with prejudice as preempted
by the PAA.
In view of the foregoing, Judge Yandle grants in part and denies in
part Honeywell's Third Motion to Dismiss.
A full-text copy of the Court's Oct. 5, 2022 Memorandum & Order is
available at https://tinyurl.com/bds49smn from Leagle.com.
HORIZON BANK: Merrow ERISA Suit Alleges Breach of Fiduciary Duties
-------------------------------------------------------------------
KAREN MERROW, THOMAS JORDAN, and MICHAEL CROSS, on behalf of the
P.L. Marketing, Inc. Employee Stock Ownership Plan, and on behalf
of a class of all other persons similarly situated, Plaintiffs v.
HORIZON BANK d/b/a/ HORIZON TRUST & INVESTMENT MANAGEMENT, THOMAS
J. SCHUH, and TIMOTHY M. LOGSDON, Defendants, Case No.
2:22-cv-00123-DLB-CJS (E.D. Ky., Oct. 5, 2022) is brought against
the Defendants under the Employee Retirement Income Security Act of
1974 for losses suffered by the P.L. Marketing, Inc. Employee Stock
Ownership Plan and its participants when Horizon Bank caused the
Plan to buy shares of P.L. Marketing for more than fair market
value, and other plan-wide relief.
Through this action, the Plaintiffs seek to enforce their rights
under ERISA and the Plan, to recover the losses incurred by the
Plan and the improper profits realized by Defendants resulting from
their causing prohibited transactions and breaches of fiduciary
duty or knowingly participating in prohibited transactions and
breaches of fiduciary duty, and equitable relief, including
reformation of ESOP Transaction contracts, rescission of the ESOP
Transaction, and enjoining Horizon from acting as a fiduciary for
any employee benefit plan that covers or includes any PLM employees
or members of the Class. The Plaintiffs request that these
prohibited transactions be declared void, Defendants be required to
restore any losses to the Plan arising from their ERISA violations,
Defendants be ordered to disgorge to the Plan any improper profits,
and any monies recovered for the Plan to be allocated to the
accounts of the Class members, says the suit.
The Plaintiffs are participants in the Plan, as defined by ERISA,
who were vested under the terms of the Plan in shares of PLM
allocated to their accounts in the Plan.
Horizon Bank is an Indiana commercial bank that provides investment
management services, offering estate and retirement planning,
financial management, and trust services.[BN]
The Plaintiffs are represented by:
Christina T. Natale, Esq.
Gregory Y. Porter, Esq.
Ryan T. Jenny, Esq.
BAILEY & GLASSER LLP
1055 Thomas Jefferson St., NW Suite 540
Washington, DC 20007
Telephone: (202) 463-2101
Facsimile: (202) 463-2103
E-mail: cnatale@baileyglasser.com
gporter@baileyglasser.com
rjenny@baileyglasser.com
ILLINOIS: DOC Head Files 7th Circuit Appeal in Stone Suit
---------------------------------------------------------
ROB JEFFREYS is taking an appeal from a court order in the lawsuit
entitled Edward Stone, et al., individually and on behalf of others
similarly situated, Plaintiffs, v. Rob Jeffreys, in his official
capacity as the Director of the Illinois Department of Corrections,
Defendant, Case No. 1:21-cv-05616, in the U.S. District Court for
the Northern District of Illinois.
The case type is stated as Other Civil Rights.
The defendant has filed a motion to dismiss the complaint.
On April 29, 2022, the Honorable Virginia M. Kendall issued a
memorandum opinion and order denying Defendant's Motion to
Dismiss.
The appellate case is captioned Edward Stone, et al v. Rob
Jeffreys, Case No. 22-2733, in the United States Court of Appeals
for the Seventh Circuit, filed on September 28, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant Rob Jeffreys docketing statement was due on October
5, 2022;
-- Appellant's brief is due on or before November 8, 2022; and
-- Appellant and Appellees brief memorandum was due on or before
October 14, 2022. [BN]
Plaintiffs-Appellees EDWARD STONE, et al., individually and on
behalf of all others similarly situated, are represented by:
Adele D. Nicholas, Esq.
LAW OFFICE OF ADELE D. NICHOLAS
5707 W. Goodman Street
Chicago, IL 60630
Telephone: (847) 361-3869
- and -
Mark G. Weinberg, Esq.
LAW OFFICE OF MARK G. WEINBERG
3612 N. Tripp Avenue
Chicago, IL 60641-3037
Telephone: (773) 283-3913
Defendant-Appellant ROB JEFFREYS, in his official capacity as the
Director of the Illinois Department of Corrections, is represented
by:
Sarah H. Newman, Esq.
OFFICE OF THE ATTORNEY GENERAL
100 W. Randolph Street
State of Illinois Center
Chicago, IL 60601
Telephone: (312) 814-6131
IQ DATA: Singh Class Suit Remanded to King County Superior Court
----------------------------------------------------------------
Judge Ricardo S. Martinez of the U.S. District Court for the
Western District of Washington, Seattle, remands the case, KARANBIR
SINGH, HARPREET SINGH, and NASTEHO OMAR, Plaintiffs v. IQ DATA, a
Washington for profit corporation, Defendant, Case No. C22-418RSM
(W.D. Wash.), to the King County Superior Court.
The matter comes before the Court on the Plaintiffs' Motion to
Remand. The Plaintiffs move for remand back to King County Superior
Court under the home-state controversy exception found in the Class
Action Fairness Act ("CAFA") and the discretion afforded to the
Court in 28 U.S.C. Section 1332(d)(3). IQ Data opposes.
The CAFA creates federal subject matter jurisdiction if three
requirements are met: (1) the proposed class has 100 or more
members; (2) at least one class member is diverse from at least one
defendant ("minimal diversity"); and (3) more than $5 million
exclusive of interests and costs is in controversy in the
aggregate. However, district court will decline to exercise
jurisdiction under CAFA when two-thirds or more of the members of
all proposed plaintiff classes in the aggregate, and the primary
defendants, are citizens of the State in which the action was
originally filed. This provision is known as the "home-state
exception" to CAFA.
"The party seeking remand bears the burden to prove an exception to
CAFA's jurisdiction."
The lawsuit is a class action in which the Plaintiffs allege that
IQ Data violated the Fair Debt Collection Practices Act, as well as
the Washington Collection Agency Act by collecting interest on
underlying amounts they owed their former landlords, upon move out,
as well as for improper credit reporting. The case was originally
filed in King County Superior Court in March of 2020.
Two classes were certified by the state court on Nov. 23, 2021:
a. CPA Class: All Washington residents who are former tenants
of a residential property in Washington on whose account IQ Data
collected, on or after Jan. 5, 2017, interest calculated from the
tenant's move out date.
b. FDCPA Class: All Washington residents who are former
tenants of a residential property in Washington on whose account IQ
Data collected or attempted to collect, on or after Jan. 5, 2020,
interest calculated from the tenant's move out date.
The April 1, 2022, Notice of Removal states: "(1) this Notice of
Removal is timely, (2) the proposed class has over 25,000 members,
far more than the requisite 100 or more members; (3) at least one
class member is diverse from IQ Data, satisfying minimal diversity;
(4) the amount in controversy exceeds the $5,000,000 threshold; and
(5) no CAFA exception applies here."
In their Motion to Remand, the Plaintiffs argue that IQ Data is a
citizen of Washington State where the action was originally filed.
Every one of the 50,373 people on the class list: (1) moved out of
a residential rental property in Washington State; and (2) has a
last known address in Washington. The class list shows by a
preponderance of the evidence that at least two-thirds of the class
members are citizens of Washington State. The Plaintiffs attach a
list of class members with their moveout address and their last
known address, both in Washington State.
In Response, IQ Data attacks the citizenship of the class members,
saying the Plaintiffs' proof is woefully inadequate. It says the
Plaintiffs claim they have met their burden of proof because IQ
Data produced the last known address of the class members. But
according to it, tThis in no way proves that more than two thirds
of the class members were citizens of the United States and of
Washington when the action was removed. Even putting aside the
extremely stale (and off-point) data on which the Plaintiffs seek
to rely, it says the Congress did not legislate that this exception
could be applied based on a person's residence. IQ Data then says
the Court is being invited to "speculate and assume" that over two
thirds of the class members are Washington citizens based on old
and unreliable addresses.
On Reply, the Plaintiffs argue that the Congress wrote exceptions
to the CAFA to allow truly intrastate class actions to be heard in
state court, citing Adams v. West Marine Prods., Inc., 958 F.3d
1216 (9th Cir. 2020). This is a truly intrastate class action about
a Washington collection agency charging Washington consumers
allegedly unlawful interest calculated at rates set by a Washington
statute. The Plaintiffs go on to cite Adams and Mondragon v.
Capital One Auto Finance, 736 F.3d 880, 886 (9th Cir. 2013) for
their factual burden. Finally, the Plaintiffs address the Section
1332(d)(3) factors favoring discretionary remand.
Judge Martinez explains that this is a case brought by two classes
of Washington State residents alleging violations of Washington
State and federal law. It is entirely reasonable for him to
conclude that two thirds (or just one third) of a list that is 100%
composed of residents of Washington State at the time of injury,
with a last known address in Washington, a) still reside in
Washington and b) are citizens of the state and the United States.
Judge Martinez finds that the record demonstrates, by a
preponderance of the evidence, that IQ Data and at least two-thirds
of the members of the certified class are citizens of Washington.
The Plaintiffs have satisfied the Ninth Circuit's requirements for
evidence of citizenship. The home state exception to CAFA applies
and Judge Martinez declines to exercise jurisdiction on that basis.
Alternatively, if it could be shown that only one-third of the
class are citizens of Washington, he would in his discretion remand
the case based on the Section 1332(d)(3) factors. He says the case
involves the application of Washington state law. There is clearly
a distinct nexus with Washington State. There is no reason to
believe that the Plaintiffs were attempting to avoid federal
jurisdiction given that their original complaint included a federal
claim.
Having reviewed the relevant pleadings, the declarations and
exhibits attached thereto, and the remainder of the record, Judge
Martinez grants the Plaintiffs' Motion to Remand and denies their
requests for attorneys' fees and costs. Given his lengthy
discussion, he says IQ Data had at least some reasonable basis for
removal. The case is remanded to King County Superior Court. The
matter is now closed.
A full-text copy of the Court's Oct. 5, 2022 Order is available at
https://tinyurl.com/ye7vnxay from Leagle.com.
KIK INTERNATIONAL: Angeles Labor Suit Removed to C.D. California
----------------------------------------------------------------
The case styled CARMEN ANGELES, on behalf of herself and all others
similarly situated, Plaintiff v. KIK INTERNATIONAL LLC, a Delaware
limited liability company; and DOES 1 through 100, inclusive,
Defendants, Case No. 22STCV10059, was removed from the Superior
Court of the State of California, in and for the County of Los
Angeles, to the U.S. District Court for the Central District of
California on Oct. 7, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 2:22-cv-07342 to the proceeding.
The complaint alleges seven causes of action for: (1) failure to
pay overtime wages; (2) failure to pay minimum wages; (3) failure
to pay sick leave; (4) failure to provide meal periods; (5) failure
to pay all wages upon termination; (6) failure to provide accurate
wage statements; and (7) unfair competition.
KIK International LLC manufactures consumer products. The Company
produces laundry and household cleaners, over the counter
medicated, pharmaceutical, health, beauty care, specialty food,
household and personal care, automotive, and other products.[BN]
The Defendant is represented by:
Lonnie D. Giamela, Esq.
Anet Drapalski, Esq.
Joel Moon, Esq.
Amy J. Choe, Esq.
FISHER & PHILLIPS LLP
444 South Flower Street, Suite 1500
Los Angeles, CA 90071
Telephone: (213) 330-4500
Facsimile: (213) 330-4501
E-mail: lgiamela@fisherphillips.com
adrapalski@fisherphillips.com
jmoon@fisherphillips.com
achoe@fisherphillips.com
KNIGHT-SWIFT TRANSPORTATION: Hobbs Seeks to Certify Classes
-----------------------------------------------------------
In the class action lawsuit captioned as TAVARES HOBBS, RICARDO
BELL, and ROBERT SHAW, on behalf of themselves and all others
similarly situated, v. KNIGHT-SWIFT TRANSPORTATION HOLDINGS, INC.,
and SWIFT TRANSPORTATION CO. OF ARIZONA, LLC, Case No.
1:21-cv-01421-JLR-SDA (S.D.N.Y.), the Plaintiffs ask the Court to
enter an order certifying the following Classes under Rules 23(a)
and (b)(3) of the Federal Rules of Civil
Procedure:
-- Class A
"All current and former truck drivers who have been
employed by Defendants while being based out of the
Walmart Dedicated location in Johnstown, New York and/or
the Target Dedicated location in Amsterdam, New York, at
any time from February 17, 2015 until the date of class
notice."
-- Class B
"All current and former truck drivers who have been
employed by Defendants while being based out of the
Defendants' Syracuse, New York location, at
any time from February 17, 2015 until the date of class
notice."
Membership in Class B is limited to time logged as
"sleeper berth" or "off duty" in New York State.
-- Class C:
"All current and former truck drivers who have been
employed by the Defendants while being based out of a work
location outside of New York State, but who have made at
least one pickup and/or delivery in New York State and
logged sleeper berth time in New York State, at any time
from February 17, 2015 until the date of class notice.
Membership in Class C is limited to time logged as
"sleeper berth" or "off duty" in New York state.
The Classes exclude the group of Drivers identified by
Swift's Rule 30(b)(6) witness as being paid hourly,
typically operating a "day cab" truck without a sleeper
berth, and who return home every night.
Knight-Swift is a publicly traded, American motor carrier holding
company based in Phoenix, Arizona.
A copy of the Plaintiffs' motion to certify classes dated Oct. 7,
2022 is available from PacerMonitor.com at https://bit.ly/3T3Mqen
at no extra charge.[CC]
The Plaintiff is represented by:
John J. Nestico, Esq.
SCHNEIDER WALLACE
COTTRELL KONECKY LLP
6000 Fairview Road, Suite 1200
Charlotte, NC 28210
Telephone: (510) 740-2946
Facsimile: (415) 421-7105
E-mail: jnestico@schneiderwallace.com
- and -
Joshua Konecky, Esq.
Nathan Piller, Esq.
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
Facsimile: (415) 421-7105
E-mail: jkonecky@schnedierwallace.com
npiller@schneiderwallace.com
KONINKLIJKE PHILIPS: Spiekermeier Suit Transferred to W.D. Pa.
--------------------------------------------------------------
The case styled LAWRENCE J. SPIEKERMEIER, on behalf of himself and
all others similarly situated, Plaintiff v. KONINKLIJKE PHILIPS
N.V.; PHILIPS NORTH AMERICA LLC; AND PHILIPS RS NORTH AMERICA LLC.,
Defendants, Case No. 9:22-cv-00158, was transferred from U.S.
District Court for the District of Montana to the U.S. District
Court for the Western District of Pennsylvania on Oct. 7, 2022.
The Clerk of Court for the Western District of Pennsylvania
assigned Case No. 2:22-cv-01406-JFC to the proceeding.
The case arises from the Defendants' alleged strict product
liability, negligence, breach of implied warranty of
merchantability, and negligent misrepresentation by manufacturing
and selling Continuous Positive Airway Pressure and BiLevel
Positive Airway Pressure devices containing polyester-based
polyurethane sound abatement foam.
Koninklijke Philips N.V. is a health technology company with its
principal executive offices in Amsterdam, The Netherlands.[BN]
The Plaintiff is represented by:
Alexander Gabriel Cabeceiras, Esq.
DEREK SMITH LAW GROUP, PLLC
One Penn Plaza Suite 4905
New York, NY 10119
Telephone: (860) 978-7710
E-mail: alexander.cabeceiras@gmail.com
- and -
Dwight J. Schulte, Esq.
SCHULTE LAW FIRM
2425 Mullan Road
Missoula, MT 59808
Telephone: (406) 721-6655
Facsimile: (406) 543-5023
E-mail: dwight@jschultelaw.com
KOPPERS INC: Bryant Appeals Suit Dismissal to 4th Cir.
------------------------------------------------------
LARRY BRYANT, et al., are taking an appeal from a court order
dismissing their lawsuit entitled Larry Bryant, et al.,
individually and on behalf of others similarly situated,
Plaintiffs, v. Koppers, Inc., et al., Defendants, Case No.
1:21-cv-02008-RDB, in the U.S. District Court for the District of
Maryland.
The Plaintiffs bring this products liability action on their own
behalf and on behalf of others similarly situated against the
Defendants seeking monetary relief for damage to a wooden deck
affixed to their home.
The Plaintiffs' Amended Complaint seeks relief against all
Defendants based on four counts: negligence (Count I); strict
products liability (Count II); unfair or deceptive trade practices
(Count III), and; breach of warranty (Count IV). All Defendants
filed respective motions to dismiss.
Defendant Koppers' motion to dismiss argues that Counts I and II
are barred by Maryland's economic loss doctrine, Count III does not
meet the standard of particularity for fraud allegations, and Count
IV fails to state a claim upon which relief may be granted. The
Defendants' collective motion to dismiss iterates the same
arguments as detailed in Koppers' motion. Defendant Culpeper of
Columbia, Inc.'s motion to dismiss argues foremost that the court
lacks personal jurisdiction, but also that the Plaintiff's Amended
Complaint should be dismissed for failure to state a claim upon
which relief may be granted.
On September 12, 2022, Judge Richard D. Bennett granted the
Defendants' motion to dismiss for failure to state a claim.
The appellate case is captioned as Larry Bryant v. Koppers, Inc.,
Case No. 22-2017, in the United States Court of Appeals for the
Fourth Circuit, filed on September 27, 2022. [BN]
Plaintiffs-Appellants LARRY BRYANT, individually and on behalf of
all others similarly situated, are represented by:
Mark Darius Robert Maneche, Esq.
PESSIN KATZ LAW, P.A.
901 Dulaney Valley Road
Towson, MD 21204
Telephone: (410) 769-6151
- and -
Aidan F. Smith, Esq.
PESSIN KATZ LAW, P.A.
901 Dulaney Valley Road
Towson, MD 21204
Telephone: (410) 339-6764
- and -
Meredith Anne Storm, Esq.
PESSIN KATZ LAW, P.A.
901 Dulaney Valley Road
Towson, MD 21204
Telephone: (410) 339-5787
Defendants-Appellees KOPPERS, INC., et al., are represented by:
Gerard J. Gaeng, Esq.
ROSENBERG, MARTIN & GREENBERG, LLP
25 South Charles Street
Baltimore, MD 21202
Telephone: (410) 727-6600
- and -
Anthony G. Hopp, Esq.
STEPTOE & JOHNSON PLLC
227 West Monroe Street
Chicago, IL 60606
Telephone: (312) 577-1249
- and -
Steven Hale Levin, Esq.
ROSENBERG, MARTIN & GREENBERG, LLP
25 South Charles Street
Baltimore, MD 21202
Telephone: (410) 685-0078
- and -
Robert L. Shuftan, Esq.
STEPTOE & JOHNSON PLLC
227 West Monroe Street
Chicago, IL 60606
Telephone: (312) 577-1300
- and -
Katharine W. Durante, Esq.
HUNTON ANDREWS KURTH, LLP
951 East Byrd Street
Richmond, VA 23219-4074
- and -
Ryan G. Rich, Esq.
HUNTON ANDREWS KURTH, LLP
Bank of America Plaza
101 South Tryon Street
Charlotte, NC 28280
Telephone: (704) 378-4778
- and -
Thomas R. Waskom, Esq.
HUNTON ANDREWS KURTH, LLP
951 East Byrd Street
Richmond, VA 23219-4074
Telephone: (804) 788-8403
LOWE'S HOME: Johnson Appeals Order Compelling Arbitration
---------------------------------------------------------
MARIA JOHNSON is taking an appeal from a court order granting the
Defendants' motion to compel arbitration in the lawsuit entitled
Maria Johnson, individually and on behalf of others similarly
situated, Plaintiff, v. Lowe's Home Centers, LLC, Defendant, Case
No. 2:21-cv-00087-TLN-JDP, in the U.S. District Court for the
Eastern District of California.
Maria 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 her 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 to dismiss her non-individual PAGA claims.
On September 22, 2022, the Court granted the Defendant's motion to
compel arbitration through an Order entered by Judge Troy L.
Nunley.
Judge Troy Nunley concluded that 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
non-arbitrable 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."
Judge Nunley further held that 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
concluded 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 found the
arbitration agreements valid and held that the Plaintiff's dispute
falls within the scope of those agreements. Therefore, he granted
the Defendant's motion to compel the Plaintiff's individual PAGA
claim to arbitration.
The appellate case is captioned as Maria Johnson v. Lowe's Home
Centers, LLC, Case No. 22-16486, in the United States Court of
Appeals for the Ninth Circuit, filed on September 27, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant Maria Johnson Mediation Questionnaire was due on
October 4, 2022;
-- Appellant Maria Johnson opening brief is due on November 25,
2022;
-- Appellee Lowe's Home Centers, LLC answering brief is due on
December 27, 2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief. [BN]
Plaintiff-Appellant MARIA JOHNSON, individually and on behalf of
all others similarly situated, is represented by:
Simon L. Yang, Esq.
Larry W. Lee, Esq.
DIVERSITY LAW GROUP
515 South Figueroa, Suite 1250
Los Angeles, CA 90071
Telephone: (213) 488-6555
- and -
William Lucas Marder, Esq.
POLARIS LAW GROUP, LLP
501 San Benito Street
Hollister, CA 95023
Defendant-Appellee LOWE'S HOME CENTERS, LLC, is represented by:
Katherine V.A. Smith, Esq.
GIBSON, DUNN & CRUTCHER, LLP
333 S. Grand Avenue
Los Angeles, CA 90071-3197
Telephone: (213) 229-7000
- and -
Joseph Richard Rose, Esq.
GIBSON, DUNN & CRUTCHER, LLP
555 Mission Street, Suite 3000
San Francisco, CA 94105
Telephone: (415) 393-8277
MAGELLAN HRSC: Remand of Rios Suit to Sacramento State Court Nixed
------------------------------------------------------------------
Judge Kimberly J. Mueller of the U.S. District Court for the
Eastern District of California denies the Plaintiff's motion to
remand the case, Sofia Rios, Plaintiff v. Magellan HRSC, Inc.,
Defendant, Case No. 2:22-cv-01219-KJM-AC (E.D. Cal.), to the
Superior Court of the State of California for the County of
Sacramento.
Ms. Rios moves to remand the case to the Sacramento County Superior
Court, arguing Magellan has not shown that more than $5 million is
in controversy, which would mean the Court lacks jurisdiction under
the Class Action Fairness Act.
Magellan is an Ohio-based healthcare management company. Rios works
for Magellan in California as a customer service associate. She
alleges the company did not pay her overtime wages when she worked
overtime, calculated her sick leave incorrectly, prevented her from
taking breaks to eat, and did not reimburse her business expenses,
all in violation of California law. She seeks damages, statutory
penalties, and attorneys' fees, among other relief. She also
alleges Magellan's policies were uniform and applied to all of its
similarly situated employees, so she seeks to represent these
employees in a class action.
Ms. Rios originally filed the case in Sacramento County Superior
Court. Magellan removed the case to this Court under the CAFA. That
act gives U.S. district courts original jurisdiction over class
actions if (1) the proposed class has at least 100 members, (2) the
amount in controversy is at least $5 million, and (3) the parties
are minimally diverse.
Magellan submitted a declaration from its vice president, Philpott,
who is familiar with the company's human resources and payroll
records. Philpott confirmed Magellan had more than 100 employees
for the relevant period. Publicly available government records
confirm Magellan is an Ohio corporation whose principal place of
business is in Maryland. As a result, the amount-in-controversy
requirement is the only contested condition of the Court's
jurisdiction under the CAFA.
Ms. Rios moves to remand, arguing Magellan has not satisfied that
condition.
Magellan begins with Rios' claim that the company denied meal
breaks to its employees. Rios alleges employees "were often unable
to take timely and uninterrupted 30-minute first meal periods" and
"were not always allowed and permitted to take a mandated second
meal period." She alleges these "meal period policies" were
"uniform" for all class members "at all relevant times."
Based on these allegations, Magellan assumes Rios will attempt to
prove each member of the proposed class was forced to skip at least
two breaks per week, if not more. Twice per week is a reasonable
interpretation of "often but not always." Magellan then counted the
employees it had during the relevant period, added together all of
weeks they worked, and calculated their average hourly salary. It
then checked its records and found that about 97% of its employees
had worked full time during the relevant period. Multiplying these
figures together resulted in Magellan's estimating a potential
liability of almost $2.4 million.
Judge Mueller says this was a reasonable conclusion to draw from
the complaint and the company's records.
Magellan also relies on Rios' claim that the company did not pay
employees all wages due after their employment ended, the sixth
claim in her complaint.
As Judge Mueller explained, it is reasonable to assume Rios will
attempt to prove all of the proposed class members missed at least
one meal period, which meant at least some "meal premiums" had gone
unpaid if any of these people left the company. Rios alleges
Magellan is liable for the maximum possible penalty for wages left
unpaid at the close of an employee's tenure: 30 days' wages.
Magellan's records showed that 493 people ended their employment
during the relevant period, and these employees' average hourly
wage was $24.11. This means Rios is seeking almost $2.9 million in
connection with her sixth claim.
As a result, Judge Mueller holds that based on Rios' claims for
missed meal breaks and late wage penalties, at least $5.2 million
is in dispute -- above the required $5 million threshold. It is not
necessary to consider Rios' other claims or her request for
attorneys' fees.
Judge Mueller concludes that Magellan has carried its burden to
show the Court has jurisdiction. It has relied on employment
records and has made reasonable assumptions about the amount in
controversy based on Rios's allegations. The motion to remand is
denied.
A full-text copy of the Court's Oct. 5, 2022 Order is available at
https://tinyurl.com/2p9fuc9w from Leagle.com.
MDL 2873: Charles Tetlack's Death Due to AFFF Exposure, Says Suit
-----------------------------------------------------------------
Sharon Stefanowicz, and Charles Tetlack by the Proposed
Administrator and Next-of-Kin, Sharon Stefanowicz, Plaintiff v. 3M
COMPANY (f/k/a Minnesota Mining and Manufacturing Company); AGC
CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA USS. INC.;
ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL
CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS,
INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.;
CORTEVA, INC.; DEEPWATER CHEMICALS, INC; DU PONT DE NEMOURS INC.
(f/k/a DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS
AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL
COMPANY; NATIONAL FOAM, INC.,; THE CHEMOURS COMPANY; TYCO FIRE
PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED
TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION,
INC. (f/k/a GE Interlogix, Inc.), Defendants, Case No.
2:22-cv-03442-RMG (D.S.C., Oct. 5, 2022) is a class action brought
by the Plaintiff and those similarly situated individuals seeking
damages for personal injury resulting from exposure to aqueous
film-forming foams (AFFF) containing the toxic chemicals
collectively known as per and polyfluoroalkyl substances (PFAS).
According to the complaint, the Defendants have failed to use
reasonable, ordinary and appropriate care in the design,
manufacture, labeling, warning, instruction, training, selling,
marketing, and distribution of AFFF products containing synthetic,
toxic PFAS. The Defendants' AFFF products are dangerous to human
health because PFAS are highly toxic and carcinogenic chemicals and
can accumulate in the blood and body of exposed individuals. The
Defendants have also failed to warn public entities and firefighter
trainees who they knew would foreseeably come into contact with
their AFFF products. The Plaintiff used the Defendants'
PFAS-containing AFFF products in their intended manner, without
significant change in the products' condition due to inadequate
warning about the products' danger, says the suit.
Plaintiff Sharon Stefanowicz, an adult resident of Pennsylvania, is
the proposed personal representative/administrator/executor of the
Estate of Charles Tetlack. Decedent Charles Tetlack, was, at the
time of death, an adult resident and citizen of Dupont,
Pennsylvania. Decedent regularly used, and was thereby directly
exposed to, AFFF in training and to extinguish fires during his
working career as a military and/or civilian firefighter. Prior to
death, Decedent was diagnosed with brain cancer as a result of
exposure to Defendants' AFFF products. Decedent's diagnosis caused
and/or contributed to his death, the suit alleges.
The Stefanowicz case has been consolidated in MDL No. 2873, In Re:
Aqueous Film-Forming Foams Products Liability Litigation. The case
is assigned to the Hon. Judge Richard Gergel.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul,
Minnesota.[BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue
South Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
MDL 2873: Elwin Madden's Death Due to AFFF Exposure, Says Suit
--------------------------------------------------------------
Barbara Madden, and Elwin Madden by the Proposed Executor and
Next-of-Kin, Barbara Madden, Plaintiff v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS
INC.; AMEREX CORPORATION; ARCHROMA USS. INC.; ARKEMA, INC.; BUCKEYE
FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN
PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY
FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.,; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Defendants, Case No. 2:22-cv-03445-RMG
(D.S.C., Oct. 5, 2022) is a class action brought by the Plaintiff
and those similarly situated individuals seeking damages for
personal injury resulting from exposure to aqueous film-forming
foams (AFFF) containing the toxic chemicals collectively known as
per and polyfluoroalkyl substances (PFAS).
According to the complaint, the Defendants have failed to use
reasonable, ordinary and appropriate care in the design,
manufacture, labeling, warning, instruction, training, selling,
marketing, and distribution of AFFF products containing synthetic,
toxic PFAS. The Defendants' AFFF products are dangerous to human
health because PFAS are highly toxic and carcinogenic chemicals and
can accumulate in the blood and body of exposed individuals. The
Defendants have also failed to warn public entities and firefighter
trainees who they knew would foreseeably come into contact with
their AFFF products. The Plaintiff used the Defendants'
PFAS-containing AFFF products in their intended manner, without
significant change in the products' condition due to inadequate
warning about the products' danger, says the suit.
Plaintiff Barbara Jean Madden is an adult resident of the State of
Arizona. She is the proposed personal
representative/administrator/executor of the Estate of Elwin
Madden. Decedent Elwin Madden regularly used, and was thereby
directly exposed to, AFFF in training and to extinguish fires
during his working career as a military and/or civilian
firefighter. Prior to death, Decedent was diagnosed with colon
cancer as a result of exposure to Defendants' AFFF products. The
Decedent's diagnosis caused and/or contributed to his death, the
suit alleges.
The Madden case has been consolidated in MDL No. 2873, In Re:
Aqueous Film-Forming Foams Products Liability Litigation. The case
is assigned to the Hon. Judge Richard Gergel.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul,
Minnesota.[BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue
South Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
MDL 2873: Haynes Sues Over Injuries From PFAS Exposure
------------------------------------------------------
STEVEN HAYNES, Plaintiff v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); AGC CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA USS. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.,; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Defendants, Case No. 2:22-cv-03444-RMG
(D.S.C., Oct. 5, 2022) is a class action brought by the Plaintiff
and those similarly situated individuals seeking damages for
personal injury resulting from exposure to aqueous film-forming
foams (AFFF) containing the toxic chemicals collectively known as
per and polyfluoroalkyl substances (PFAS).
According to the complaint, the Defendants have failed to use
reasonable, ordinary and appropriate care in the design,
manufacture, labeling, warning, instruction, training, selling,
marketing, and distribution of AFFF products containing synthetic,
toxic PFAS. The Defendants' AFFF products are dangerous to human
health because PFAS are highly toxic and carcinogenic chemicals and
can accumulate in the blood and body of exposed individuals. The
Defendants have also failed to warn public entities and firefighter
trainees who they knew would foreseeably come into contact with
their AFFF products. The Plaintiff used the Defendants'
PFAS-containing AFFF products in their intended manner, without
significant change in the products' condition due to inadequate
warning about the products' danger. He relied on the Defendants'
instructions as to the proper handling of the products, says the
suit.
As a result of Defendants' conduct and the resulting contamination,
Plaintiff suffered severe personal injuries by exposure to AFFF
containing PFAS, the suit alleges.
The Haynes case has been consolidated in MDL No. 2873, In Re:
Aqueous Film-Forming Foams Products Liability Litigation. The case
is assigned to the Hon. Judge Richard Gergel.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul,
Minnesota.[BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue
South Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
MDL 2873: Lovan Files Personal Injury Suit Over PFAS Exposure
--------------------------------------------------------------
JOSEPH LOVAN, Plaintiff v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); AGC CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA USS. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.,; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Defendants, Case No. 2:22-cv-03443-RMG
(D.S.C., Oct. 5, 2022) is a class action brought by the Plaintiff
and those similarly situated individuals seeking damages for
personal injury resulting from exposure to aqueous film-forming
foams (AFFF) containing the toxic chemicals collectively known as
per and polyfluoroalkyl substances (PFAS).
According to the complaint, the Defendants have failed to use
reasonable, ordinary and appropriate care in the design,
manufacture, labeling, warning, instruction, training, selling,
marketing, and distribution of AFFF products containing synthetic,
toxic PFAS. The Defendants' AFFF products are dangerous to human
health because PFAS are highly toxic and carcinogenic chemicals and
can accumulate in the blood and body of exposed individuals. The
Defendants have also failed to warn public entities and firefighter
trainees who they knew would foreseeably come into contact with
their AFFF products. The Plaintiff used the Defendants'
PFAS-containing AFFF products in their intended manner, without
significant change in the products' condition due to inadequate
warning about the products' danger. He relied on the Defendants'
instructions as to the proper handling of the products, says the
suit.
As a result of Defendants' conduct and the resulting contamination,
Plaintiff suffered severe personal injuries by exposure to AFFF
containing PFAS, the suit alleges.
The Lovan case has been consolidated in MDL No. 2873, In Re:
Aqueous Film-Forming Foams Products Liability Litigation. The case
is assigned to the Hon. Judge Richard Gergel.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul,
Minnesota.[BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue
South Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
MDL 2913: Andover Central Sues Over Youth E-Cigarette Crisis
------------------------------------------------------------
Andover Central School District, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL Labs, Inc. F/K/A PAX Labs,
Inc.; James Monsees; Adam Bowen; Nicholas Pritzker; Hoyoung Huh;
Riaz Valani; Altria Group, Inc.; Altria Client Services LLC; Altria
Group Distribution Company; AND Philip Morris USA, Inc. Defendants,
Case No. 3:22-cv-05814 (N.D. Cal., Oct. 6, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of the Public Nuisance Law and the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Andover Central School District case has been consolidated in
MDL No. 2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES,
AND PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Andover Central School District is a unified school district
organized and operating pursuant to the laws of the State of New
York.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.[BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
MDL 2913: Bixby Public Schools Sues Over Youth E-Cigarette Crisis
-----------------------------------------------------------------
Bixby Public Schools, on behalf of itself and all others similarly
situated, Plaintiff v. JUUL Labs, Inc. F/K/A PAX Labs, Inc.; James
Monsees; Adam Bowen; Nicholas Pritzker; Hoyoung Huh; Riaz Valani;
Altria Group, Inc.; Altria Client Services LLC; Altria Group
Distribution Company; AND Philip Morris USA, Inc. Defendants, Case
No. 3:22-cv-05839-WHO (N.D. Cal., Oct. 7, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of the Public Nuisance Law and the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Bixby Public Schools case has been consolidated in MDL No.
2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Bixby Public Schools is organized and operating pursuant to the
laws of the State of Oklahoma.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.[BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
MDL 2913: Bremerton School Sues Over E-Cigarette Promotion to Youth
-------------------------------------------------------------------
Bremerton School District, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL Labs, Inc. F/K/A PAX Labs,
Inc.; James Monsees; Adam Bowen; Nicholas Pritzker; Hoyoung Huh;
Riaz Valani; Altria Group, Inc.; Altria Client Services LLC; Altria
Group Distribution Company; AND Philip Morris USA, Inc. Defendants,
Case No. 3:22-cv-05843 (N.D. Cal., Oct. 7, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of the Public Nuisance Law and the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Bremerton School District case has been consolidated in MDL No.
2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Bremerton School District is a unified school district organized
and operating pursuant to the laws of the State of Washington.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.[BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
MDL 2913: Calera Public Schools Sues Over Youth E-Cigarette Crisis
------------------------------------------------------------------
Calera Public Schools, on behalf of itself and all others similarly
situated, Plaintiff v. JUUL Labs, Inc. F/K/A PAX Labs, Inc.; James
Monsees; Adam Bowen; Nicholas Pritzker; Hoyoung Huh; Riaz Valani;
Altria Group, Inc.; Altria Client Services LLC; Altria Group
Distribution Company; AND Philip Morris USA, Inc. Defendants, Case
No. 3:22-cv-05849 (N.D. Cal., Oct. 7, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of the Public Nuisance Law and the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Calera Public Schools case has been consolidated in MDL No.
2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Calera Public Schools is a unified school district organized and
operating pursuant to the laws of the State of Oklahoma.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.[BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
MDL 2913: Checotah Public Schools Sues Over E-Cigarette Crisis
--------------------------------------------------------------
Checotah Public Schools, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL Labs, Inc. F/K/A PAX Labs,
Inc.; James Monsees; Adam Bowen; Nicholas Pritzker; Hoyoung Huh;
Riaz Valani; Altria Group, Inc.; Altria Client Services LLC; Altria
Group Distribution Company; AND Philip Morris USA, Inc. Defendants,
Case No. 3:22-cv-05851 (N.D. Cal., Oct. 7, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of the Public Nuisance Law and the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Checotah Public Schools case has been consolidated in MDL No.
2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Checotah Public Schools is a school district organized and
operating pursuant to the laws of the State of Oklahoma.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.[BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
MDL 2913: Clinton Central Balks at E-Cigarette Promotion to Youth
-----------------------------------------------------------------
Clinton Central School District, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL Labs, Inc. F/K/A PAX Labs,
Inc.; James Monsees; Adam Bowen; Nicholas Pritzker; Hoyoung Huh;
Riaz Valani; Altria Group, Inc.; Altria Client Services LLC; Altria
Group Distribution Company; AND Philip Morris USA, Inc. Defendants,
Case No. 3:22-cv-05864 (N.D. Cal., Oct. 7, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of the Public Nuisance Law and the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Clinton Central School District case has been consolidated in
MDL No. 2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES,
AND PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Clinton Central School District is a school district organized and
operating pursuant to the laws of the State of New York.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.[BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
MDL 2913: Commerce Public Schools Sues Over E-Cigarette Crisis
--------------------------------------------------------------
Commerce Public Schools, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL Labs, Inc. F/K/A PAX Labs,
Inc.; James Monsees; Adam Bowen; Nicholas Pritzker; Hoyoung Huh;
Riaz Valani; Altria Group, Inc.; Altria Client Services LLC; Altria
Group Distribution Company; AND Philip Morris USA, Inc. Defendants,
Case No. 3:22-cv-05856 (N.D. Cal., Oct. 7, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of the Public Nuisance Law and the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Commerce Public Schools case has been consolidated in MDL No.
2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Commerce Public Schools is a school district organized and
operating pursuant to the laws of the State of Oklahoma.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.[BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
MDL 2913: Delsea Regional Sues Over Youth E-Cigarette Crisis
------------------------------------------------------------
Delsea Regional School District, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL Labs, Inc. F/K/A PAX Labs,
Inc.; James Monsees; Adam Bowen; Nicholas Pritzker; Hoyoung Huh;
Riaz Valani; Altria Group, Inc.; Altria Client Services LLC; Altria
Group Distribution Company; AND Philip Morris USA, Inc. Defendants,
Case No. 3:22-cv-05877 (N.D. Cal., Oct. 7, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of the Public Nuisance Law and the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Delsea Regional School District case has been consolidated in
MDL No. 2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES,
AND PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Delsea Regional School District is a local school district
organized and operating pursuant to the laws of the State of New
Jersey.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.[BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
MDL 2913: E-Cigarettes Target Youth Market, Franklin Township Says
------------------------------------------------------------------
Franklin Township Public School District, on behalf of itself and
all others similarly situated, Plaintiff v. JUUL Labs, Inc. F/K/A
PAX Labs, Inc.; James Monsees; Adam Bowen; Nicholas Pritzker;
Hoyoung Huh; Riaz Valani; Altria Group, Inc.; Altria Client
Services LLC; Altria Group Distribution Company; AND Philip Morris
USA, Inc. Defendants, Case No. 3:22-cv-05870 (N.D. Cal., Oct. 7,
2022) is a class action against the Defendants for negligence,
gross negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Franklin Township Public School District case has been
consolidated in MDL No. 2913, IN RE: JUUL LABS, INC. MARKETING,
SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION. The case is
assigned to the Hon. Judge William H. Orrick.
Franklin Township Public School District is a local school district
organized and operating pursuant to the laws of the State of New
Jersey.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.[BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
MDL 2913: E-Cigarettes Target Youth Market, Harford County Claims
-----------------------------------------------------------------
Harford County Public Schools School District, on behalf of itself
and all others similarly situated, Plaintiff v. JUUL Labs, Inc.
F/K/A PAX Labs, Inc.; James Monsees; Adam Bowen; Nicholas Pritzker;
Hoyoung Huh; Riaz Valani; Altria Group, Inc.; Altria Client
Services LLC; Altria Group Distribution Company; AND Philip Morris
USA, Inc. Defendants, Case No. 3:22-cv-05792 (N.D. Cal., Oct. 6,
2022) is a class action against the Defendants for negligence,
gross negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Harford County Public Schools School District case has been
consolidated in MDL No. 2913, IN RE: JUUL LABS, INC. MARKETING,
SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION. The case is
assigned to the Hon. Judge William H. Orrick.
Harford County Public Schools School District is a unified school
district organized and operating pursuant to the laws of the State
of Maryland.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.[BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
MDL 2913: E-Cigarettes Target Youth Market, Mount Vernon Claims
---------------------------------------------------------------
Mount Vernon School District, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL Labs, Inc. F/K/A PAX Labs,
Inc.; James Monsees; Adam Bowen; Nicholas Pritzker; Hoyoung Huh;
Riaz Valani; Altria Group, Inc.; Altria Client Services LLC; Altria
Group Distribution Company; AND Philip Morris USA, Inc. Defendants,
Case No. 3:22-cv-05828 (N.D. Cal., Oct. 6, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of the Public Nuisance Law and the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Mount Vernon School District case has been consolidated in MDL
No. 2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Mount Vernon School District is a unified school district organized
and operating pursuant to the laws of the State of Washington.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.[BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
MDL 2913: Faces Gilmer County Suit Over Youth E-Cigarette Crisis
----------------------------------------------------------------
Gilmer County Board of Education, Gilmer County, State of West
Virginia, on behalf of itself and all others similarly situated,
Plaintiff v. JUUL Labs, Inc. F/K/A PAX Labs, Inc.; James Monsees;
Adam Bowen; Nicholas Pritzker; Hoyoung Huh; Riaz Valani; Altria
Group, Inc.; Altria Client Services LLC; Altria Group Distribution
Company; AND Philip Morris USA, Inc. Defendants, Case No.
3:22-cv-05742 (N.D. Cal., Oct. 5, 2022) is a class action against
the Defendants for negligence, gross negligence, and violations of
the West Virginia Public Nuisance Law and the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Gilmer County Board of Education case has been consolidated in
MDL No. 2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES,
AND PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Gilmer County Board of Education, Gilmer County, State of West
Virginia, serves students in grades K-12.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.[BN]
The Plaintiff is represented by:
Andy D. Birchfield, Jr., Esq.
Joseph G. VanZandt, Esq.
BEASLEY ALLEN CROW METHVIN PORTIS & MILES, LLC
234 Commerce Street
Montgomery, AL 36103
Telephone: (334) 269-2343
E-mail: Andy.Birchfield@BeasleyAllen.com
Joseph.VanZandt@BeasleyAllen.com
- and -
Charles R. "Rusty" Webb, Esq.
THE WEBB LAW CENTRE, PLLC
716 Lee St. E.
Charleston, WV 25301
Telephone: (304) 344-9322
E-mail: Rusty@RustyWebb.com
MDL 2913: Framingham Public School Sues Over E-Cigarette Crisis
---------------------------------------------------------------
Framingham Public Schools, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL Labs, Inc. F/K/A PAX Labs,
Inc.; James Monsees; Adam Bowen; Nicholas Pritzker; Hoyoung Huh;
Riaz Valani; Altria Group, Inc.; Altria Client Services LLC; Altria
Group Distribution Company; AND Philip Morris USA, Inc. Defendants,
Case No. 3:22-cv-05869-WHO (N.D. Cal., Oct. 7, 2022) is a class
action against the Defendants for negligence, gross negligence, and
violations of the Public Nuisance Law and the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Framingham Public Schools case has been consolidated in MDL No.
2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Framingham Public Schools is a local school district organized and
operating pursuant to the laws of the State of Massachusetts.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.[BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
MDL 2913: Lake Arthur Municipal Sues Over Youth E-Cigarette Crisis
------------------------------------------------------------------
Lake Arthur Municipal Schools, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL Labs, Inc. F/K/A PAX Labs,
Inc.; James Monsees; Adam Bowen; Nicholas Pritzker; Hoyoung Huh;
Riaz Valani; Altria Group, Inc.; Altria Client Services LLC; Altria
Group Distribution Company; AND Philip Morris USA, Inc. Defendants,
Case No. 3:22-cv-05822 (N.D. Cal., Oct. 6, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of the Public Nuisance Law and the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Lake Arthur Municipal Schools case has been consolidated in MDL
No. 2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Lake Arthur Municipal Schools is a unified school district
organized and operating pursuant to the laws of the State of New
Mexico.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.[BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
MDL 2913: Poughkeepsie City School Sues Over E-Cigarette Crisis
---------------------------------------------------------------
Poughkeepsie City School District, on behalf of itself and all
others similarly situated, Plaintiff v. JUUL Labs, Inc. F/K/A PAX
Labs, Inc.; James Monsees; Adam Bowen; Nicholas Pritzker; Hoyoung
Huh; Riaz Valani; Altria Group, Inc.; Altria Client Services LLC;
Altria Group Distribution Company; AND Philip Morris USA, Inc.
Defendants, Case No. 3:22-cv-05829 (N.D. Cal., Oct. 6, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Poughkeepsie City School District case has been consolidated in
MDL No. 2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES,
AND PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Poughkeepsie City School District is a unified school district
organized and operating pursuant to the laws of the State of New
York.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.[BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
MDL 2913: Promotes E-Cigarettes to Youth, Goodwell Public Says
--------------------------------------------------------------
Goodwell Public Schools, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL Labs, Inc. F/K/A PAX Labs,
Inc.; James Monsees; Adam Bowen; Nicholas Pritzker; Hoyoung Huh;
Riaz Valani; Altria Group, Inc.; Altria Client Services LLC; Altria
Group Distribution Company; AND Philip Morris USA, Inc. Defendants,
Case No. 3:22-cv-05883 (N.D. Cal., Oct. 7, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of the Public Nuisance Law and the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Goodwell Public Schools case has been consolidated in MDL No.
2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Goodwell Public Schools is a local school district organized and
operating pursuant to the laws of the State of Oklahoma.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.[BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
MDL 2913: Whiteriver Unified Sues Over Youth E-Cigarette Crisis
---------------------------------------------------------------
Whiteriver Unified School District, on behalf of itself and all
others similarly situated, Plaintiff v. JUUL Labs, Inc. F/K/A PAX
Labs, Inc.; James Monsees; Adam Bowen; Nicholas Pritzker; Hoyoung
Huh; Riaz Valani; Altria Group, Inc.; Altria Client Services LLC;
Altria Group Distribution Company; AND Philip Morris USA, Inc.
Defendants, Case No. 3:21-22-5774 (N.D. Cal., Oct. 5, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Whiteriver Unified School District case has been consolidated
in MDL No. 2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES,
AND PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Whiteriver Unified School District is a unified school district
organized and operating pursuant to the laws of the State of
Arizona.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.[BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
MELROSE HOME: Fails to Pay Laborers' Minimum Wages, OT Under FLSA
-----------------------------------------------------------------
Santo Proano, and Elena Delgado on behalf of themselves and others
similarly situated in the proposed FLSA Collective Action v.
Melrose Home Improvement Corp., and Luis Gualpa, Case 1:22-cv-06050
(E.D.N.Y., Oct. 9, 2022) seeks to recover unpaid minimum wages,
overtime wages, unpaid spread-of-hours, unlawfully deducted wages,
liquidated and statutory damages, pre- and post-judgment interest,
and attorneys' fees pursuant to the Fair Labor Standards Act, the
New York State Labor Law, and NYLL's Wage Theft Prevention Act.
The Plaintiffs worked as manual laborers at Defendants'
construction company. Mr. Proano was employed from January 2020 to
December 2021, while Ms. Delgado was employed from September 2021
to December 2021. Both regularly worked 5-6 days per week for a
total period of 55-72 hours.
The Plaintiffs claim that they were required to work in excess of
40 hours per week, but never received an overtime premium of one
and one-half times of their regular rate of pay for those hours.
Melrose was established on Feb 22 2021 as a domestic business
corporation type registered at 9 MELROSE STREET ELMONT.[BN]
The Plaintiff is represented by:
Joshua Levin-Epstein, Esq.
Jason Mizrahi, Esq.
LEVIN-EPSTEIN & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4700
New York, NY 10165
Telephone: (212) 792-0046
E-mail: Joshua@levinepstein.com
METROPOLITAN GENERAL: Wins in Part Bid to Dismiss MSP Recovery Suit
-------------------------------------------------------------------
In the case, MSP Recovery Claims, LLC, MSPA Claims 1, LLC, and
MAO-MSO Recovery II LLC, Series PMPI, Plaintiffs v. Metropolitan
General Insurance Co., Metropolitan Casualty Insurance Co.,
Metropolitan Group Property & Casualty Insurance Co., MetLife Auto
& Home Group, and Metropolitan P&C Insurance Co., Defendants, Civil
Action No. 20-24052-Civ-Scola (S.D. Fla.), Judge Robert N. Scola,
Jr., of the U.S. District Court for the Southern District of
Florida enters an order:
a. vacating its Dismissal Order of March 2, 2021; and
b. granting in part and denying in part the Defendants' motion
to dismiss the Plaintiffs' class action allegations.
The matter is before the Court upon the Eleventh Circuit's mandate
to consider whether: (1) dismissal is appropriate under the "two
dismissal rule" found at Federal Rule of Civil Procedure
41(a)(1)(B), and (2) the Court has personal jurisdiction over
Defendants Metropolitan Group Property and Casualty Insurance Co.,
and MetLife Auto & Home Group.
The putative class action arises under the Medicare Secondary Payer
("MSP") provisions of the Medicare Act, 42 U.S.C. Section 1395y, et
seq. The Plaintiffs' amended class complaint against the Defendants
is one of many similar actions that they and their related entities
have filed throughout the country. These cases typically allege the
Plaintiffs or one of their affiliates obtained an assignment from a
Medicare Advantage Organization ("MAO") to try to recover money
linked to costs incurred by the MAO in connection with their
enrollees' medical expenses after being injured in accidents.
The MSP was enacted to combat the rising costs of Medicare. It
reformed the Medicare system such that Medicare and MAOs became
secondary payers who would not bear the costs of medical procedures
that were already covered by primary payers, i.e. other private
insurance companies. Under the MSP, Medicare and MAOs could still
make "conditional payments" to cover the medical bills of their
beneficiaries where a primary payer, such as one of the Defendants,
could not be expected to remit prompt payment.
Where Medicare or a MAO "has made a conditional payment, and the
primary payer's 'responsibility for such payment' has been
'demonstrated,' as by a judgment or settlement agreement, the
primary payer is responsible to reimburse Medicare or the MAO
within 60 days." When a primary payer fails to remit such payment,
Medicare can seek double damages from the primary payer under the
MSP's right of action for the government. Assignees of MAOs,
likewise, can seek double damages under the MSP's private right of
action.
The Plaintiffs allege that the Defendants, as primary payers, have
"systematically and uniformly failed to honor their primary payer
obligations" under the MSP by failing to pay or reimburse Medicare
MAOs for medical expenses "resulting from injuries sustained in
automobile and other accidents" that "were paid by Medicare
Advantage Organizations." They state that they utilize a
"proprietary system" that matches health care claims data from
their assignors to data from the Centers for Medicare & Medicaid
Services ("CMS"), police crash and incident reports, and data from
primary payers, to identify instances where a primary payer failed
to honor their obligations under the MSP.
The Plaintiffs claim to have used their proprietary system to
identify "multiple instances in which their Assignors made
conditional payments for accident-related medical expenses which
should have been paid and/or reimbursed by the Defendants." They
provided, as Exhibit A to their amended complaint, a list of claims
that were identified by the Plaintiffs' data analysis. Unlike
complaints filed in other similar lawsuits, the Plaintiffs do not
provide a specific exemplar in their complaint showing an example
of an instance or instances where a MAO made payments, together
with the amount of those payments, for which the Defendants would
have allegedly been responsible. Rather, they rely exclusively on
their Exhibit A to their complaint.
The Court found the Plaintiffs' reliance on Exhibit A insufficient
to state a claim under the MSP and thus dismissed their complaint
pursuant to Rule 12(b)(6). However, the Eleventh Circuit reversed
that decision and directed the Court to consider two remaining
grounds that the Defendants present for dismissal: (1) the
"two-dismissal rule," and (2) lack of personal jurisdiction, thus
prompting Judge Scola's instant Opinion.
Judge Scola begins with the "two-dismissal rule." Under it, a
plaintiff's second voluntary dismissal of the same claim "operates
as an adjudication on the merits." Consequently, a second voluntary
dismissal operates as a prior "judgment on the merits" for purposes
of res judicata, which "will bar a subsequent action if: (1) the
prior decision was rendered by a court of competent jurisdiction;
(2) there was a final judgment on the merits; (3) the parties were
identical in both suits; and (4) the prior and present causes of
action are the same."
The Defendants argue that the doctrine forecloses the Plaintiffs'
suit because they/their privies have voluntarily dismissed the
Defendant/its privies at least four times in two actions before the
Court and two actions before the Eleventh Judicial Circuit Court of
Florida.
The Plaintiffs offer no response concerning the state court
actions. They say that the cases before the Court, although
voluntarily dismissed, do not present a bar to this suit because
they involved different parties and claims. As such, they
effectively argue that the third and fourth prongs of the res
judicata analysis fail.
Indeed, there is no question as to the first prong of the res
judicata analysis seeing as the voluntary dismissals occurred in
courts of competent jurisdiction, Judge Scola holds. The same goes
for the second prong because the dismissals themselves operate as
final judgments per the discussion above. Thus, he need only
consider whether the third and fourth prongs are met.
It is not the first time the Plaintiffs resist dismissal by the
arguments they present. As noted, they and their related entities
file lawsuits such as these throughout the country. In MSP Recovery
Claims, Series LLC. et al. v. Progressive Casualty Insurance Co. et
al., No. 1:21CV926 (N.D. Ohio), MSP Recovery Claims, Series LLC
("MSPRC") asserted the same arguments to resist dismissal on
accusations of claim-splitting, which "is the same as res judicata,
but with a presumption of a prior final judgment instead of a an
actual prior final judgment." Even closer to home, in MSP Recovery
Claims, Series LLC v. Esurance Property and Casualty Insurance
Company, No. 20-23590-CIV, (S.D. Fla.), MSPRC argued the same to
resist dismissal under res judicata. Neither court agreed with
MSPRC.
As is the present case, the parties to the previously dismissed
actions did not perfectly align to the ones before those courts.
However, neither court found that fact dispositive. That is because
the third prong of the res judicata analysis goes satisfied where
"'the parties, or those in privity with them, are identical.'" The
Plaintiffs are MSPRC, MSPA Claims 1, LLC, and MAO-MSO Recovery II
LLC, Series PMPI ("MAO"). Because MSPRC was a Plaintiff in all four
predecessor actions, the question of privity only concerns the
other two Plaintiffs.
For their part, the Defendants admit that privity among them and
the predecessor Defendants exist. However, Judge Scola need not
rest on that representation alone. At least one predecessor
Defendant is also a named Defendant -- Metropolitan Group Property
and Casualty Insurance Co. As to the remaining Defendants, the
Plaintiffs are the ones that actually provide the Court with what
they say is proof of the legal relationship among all the
Defendants in an exhibit to the amended complaint. Even more, all
the Defendants share the same principal place of business. On those
facts, a substantive legal relationship amounting to privity exists
among the new Defendants and their predecessors.
Judge Scola finds that although the exact set of parties across the
predecessor and current lawsuits is not before the Court, the
substantial legal relationships among those parties render them
"identical" to one another for purposes of res judicata. Hence, the
Plaintiffs fail on the third prong of the res judicata analysis.
Next, Judge Scola turns to the question of whether "the prior and
the present causes of action are the same." The two state court
actions and the federal suit before Judge Williams all involved the
same factual predicate. They turned on insurance claims that
purportedly went unpaid by the Defendants despite their obligation
to render payment on them as primary providers of no-fault coverage
under Florida law. And in fact, the "representative facts" across
all three suits appear to be nearly identical. Both state court
suits were voluntarily dismissed on Oct. 31, 2017, and the suit
before Judge Williams was voluntarily dismissed on July 27, 2018.
Thus, to the extent there are liabilities claimed that were: (1)
repeated in both state court actions, and/or (2) the subject of
either state court action and also the subject of the suit
dismissed before Judge Williams, they are precluded. That
preclusive effect naturally does not extend to later-in-time
liabilities that were assigned to the Plaintiffs after the
dismissal of the later-in-time suit before Judge Williams. However,
the preclusive effect does apply to any claims here that could have
been raised in any of those three suits but were not.
That brings Judge Scola to the suit before Judge Graham, MSP
Recovery Claims, Series LLC v. Metro. Cas. Ins. Co., Case No.
17-cv-23825-DPG (S.D. Fla.). As in the other actions, the charge
there was a failure to make payments due to the insurers
represented by the Plaintiffs (or their privies), as required by
the MSP. However, this suit involved allegations of nationwide
liabilities stemming from insurance claims that Metropolitan
Casualty Insurance Company settled but did not pay. Although the
suit before Judge Graham also involved violations of the MSP, it
turned on facts distinct from those that gave rise to the claims
before Judge Williams. And because the two suits did not arise out
of the same "nucleus of operative fact," Judge Scola opines that
the question of whether the claims in the suit before Judge Graham
could have been raised in the one before Judge Williams (or vice
versa) becomes irrelevant.
Accordingly, any overlap between the claims in the current suit and
those raised before Judge Graham is not subject to preclusion.
Next, the Defendants argue that there is no personal jurisdiction
over Defendant MetLife Auto & Home Group. In fact, they say it does
not exist. The Plaintiffs do little to contest the point. They
simply blame the Defendants for purportedly reporting claims under
that name. However, that does little to change the fact that the
Court cannot exercise personal jurisdiction over a person that does
not exist. Accordingly, Defendant MetLife Auto & Home Group must be
dismissed.
Should discovery reveal that the insurance claims associated with
"MetLife Auto & Home Group" are, in fact, associated with one of
the other Defendants here, the Plaintiffs may pursue redress of
those insurance claims against the corresponding Defendant(s), so
long as those insurance claims are not subject to preclusion as
described. In making this ruling, Judge Scola does not mean to
instruct the parties to engage in any particularized discovery. The
parties may request particularized discovery upon proper motion
should the need arise.
Moving on, the Defendants also challenge the Court's personal
jurisdiction over Metropolitan Group Property and Casualty
Insurance Co. They represent that the entity "is not writing
insurance in Florida nor does it have automobile insurance policies
currently in force there."
However, Judge Scola finds that this statement -- written in the
present tense and rendered in December of 2020 -- does little to
answer the question of whether this entity wrote any of the
insurance claims at issue, which is what would give rise to the
Court's exercise of jurisdiction. He finds that the Plaintiffs have
established a prima facie case of personal jurisdiction as to
Metropolitan Group Property and Casualty Insurance Co. by listing
the relevant Florida-based insurance claims in Exhibit A to their
amended complaint. The Defendants, by contrast, have failed to
carry the burden necessary to rebut that prima facie case.
Consequently, their motion must be denied as to Metropolitan Group
Property and Casualty Insurance Co.
Unrelated to the foregoing, the Defendants also moved the Court to
dismiss the Plaintiffs' class action allegations on the basis of
their complaint. Although they insist on the individualized nature
of the claims backing the Plaintiffs' complaint, Judge Scola finds
that it would be premature to dismiss the class action allegations
on the record before the Court. He allows the class action
allegations to stand for now. The Defendants may renew their
arguments at a later stage of this litigation.
For the states reasons, Judge Scola vacates the Court's Dismissal
Order of March 2, 2021 and enters this one in its stead. He grants
in part and denies in part the Defendants' motion to dismiss.
Judge Scola directs the Clerk to reopen the case. He partially
grants the Defendants' motion in dismissing any claims raised in
this suit related to liabilities that were: (1) repeated in both
state court actions described supra, or (2) the subject of either
state court action and also the subject of the suit dismissed
before Judge Williams; or (3) could have been raised in any of the
lawsuits described. Provided they are not precluded, any claims
raised in this suit related to liabilities that were also raised in
the suit before Judge Graham remain viable.
Judge Scola partially grants the Defendants' motion in dismissing
Defendant MetLife Auto & Home Group as a party. He denies their
request to dismiss Metropolitan Group Property and Casualty
Insurance Co. He also denies, as premature, their request to
dismiss the class action allegations.
Judge Scola also directs the Plaintiffs to file, no later than Oct.
31, 2022, a Second Amended Complaint consistent with the Order. The
parties are directed to file, no later than Nov. 14, 2022, a Joint
Scheduling Report setting forth revised proposed deadlines for the
filings/events outlined in the Court's previous Scheduling Order.
A full-text copy of the Court's Oct. 5, 2022 Order is available at
https://tinyurl.com/5bxax7tm from Leagle.com.
NEW YORK INSTITUTE: Boykin-Smith Class Suit Remanded to State Court
-------------------------------------------------------------------
Judge Joan M. Azrack of the U.S. District Court for the Eastern
District of New York remands the case, NASIR BOYKIN-SMITH, on
behalf of herself and all others similarly situated, Plaintiff v.
NEW YORK INSTITUTE OF TECHNOLOGY (NYIT), Defendants, Case No.
20-CV-4108 (JMA) (ARL) (E.D.N.Y.), to Nassau County Supreme Court.
Ms. Boykin-Smith, a student at New York Institute of Technology
("NYIT"), filed the putative class action seeking damages stemming
from NYIT's cessation of in-person educational activities during
the COVID-19 pandemic.
NYIT's two main campuses are located in New York State. NYIT also
has four smaller campuses located abroad in China, Canada, and Abu
Dhabi. It also runs the New York Institute of Technology College of
Osteopathic Medicine ("NYITCOM"). One of NYITCOM's campuses is in
New York and the other is in Arkansas.
In August 2020, the Plaintiff filed the putative class action in
Nassau County Supreme Court. In the original complaint, she pursued
a putative class action "on behalf of herself and those similarly
situated individuals who paid tuition and fees for the Spring 2020
semester to New York Institute of Technology." The original
complaint alleged that "Defendant NYIT is a private university with
two main campuses located" in Old Westbury, New York and New York
City. According to the original complaint, on March 10, 2020, NYIT
canceled all in-person educational activities indefinitely and
then, on March 21, 2020, iy announced that this cancellation would
continue through the remainder of the Spring 2020 semester, with
all learning to take place online.
The original complaint alleged claims for breach of contract,
conversion, and unjust enrichment on behalf of the Plaintiff and
all class members. It explicitly asserted that "under New York's
common law principles of unjust enrichment, it is inequitable for
the Defendant to retain the benefits conferred by the Plaintiff's
and the Class Members' overpayments." The original complaint
alleged that venue was appropriate in Nassau County because NYIT
provided services and entered into agreements "in New York State
and in Nassau County" and the "acts and occurrences that give rise
to the claims occurred within Nassau County."
On Sept. 2, 2020, NYIT removed the action to federal court,
invoking jurisdiction under the Class Action Fairness Act ("CAFA"),
28. U.S.C. Section 1332(d). Shortly after removal, it filed a
pre-motion conference letter concerning a proposed motion for
judgment on the pleadings.
In response, the Plaintiff filed a letter on Sept. 18, 2020
indicating that she intended to file an amended complaint. Her
letter also indicated that there may be an issue concerning
"putative class composition in regard to jurisdiction under CAFA."
The Plaintiff then filed an amended complaint, which noted that
NYIT had removed the case under CAFA and that, as of the filing of
the amended complaint, she was not in a position to determine "the
percentage of putative class members who are citizens of the State
of New York versus those who are not -- which would otherwise allow
for a determination of whether CAFA jurisdiction is proper."
The Amended Complaint expanded on some of the Plaintiff's factual
allegations, but is largely similar to the original complaint with
respect to issues relevant to the pending remand motion. The
definition of the class in the Amended Complaint largely tracked
the definition in the original complaint (defining class as "all
persons who paid, or will pay, tuition and/or the Mandatory Fees
for a student to attend in-person class(es), at NYIT's Campuses,
during the Spring 2020 or any other semester affected by Covid-19
at NYIT but had their educational experiences and class(es) moved
to online only learning").
On Oct. 1, 2020, the Court held a pre-motion conference and then
stayed discovery pending the resolution of motions to dismiss that
were filed in similar cases against colleges and universities in
the Southern District of New York. The issue of CAFA jurisdiction
was also discussed at the pre-motion conference.
On Sept. 30, 2021, the Plaintiff filed the instant motion, seeking
to remand the action back to state court.
Prior to filing their motion to remand, the Plaintiff had sent a
letter to the Defendant asserting her view that the action should
be remanded based on certain enrollment information from the
National Center for Education Statistics. In response, the
Defendant provided the Plaintiff with enrollment data for the
Spring 2020 semester concerning its domestic and foreign campuses.
This information identifies the total numbers of students who were
enrolled at each of NYIT's campuses in the Spring of 2020 and the
number of those students who were residents of New York.
It is undisputed that the Court has jurisdiction over the action as
CAFA's requirements for minimal diversity and the
amount-in-controversy are satisfied. The Plaintiff, however,
contends that the Court should remand pursuant to CAFA's "home
state exceptions" to federal jurisdiction. According to her, the
Court is required to decline jurisdiction under 28 U.S.C. Section
1332(d)(4). She also asserts that, if Section 1332(d)(4) is
inapplicable, discretionary remand is warranted under 28 U.S.C.
Section 1332(d)(3).
Under Section 1332(d)(4), a "district court will decline to
exercise jurisdiction" over a class under CAFA if, inter alia, the
defendant is a citizen of the state where the action was originally
filed and "greater than two-thirds of the members of all proposed
plaintiff classes in the aggregate are citizens of the State in
which the action was originally filed." The Plaintiff bears the
burden of proving the applicability of CAFA's exceptions by a
preponderance of the evidence.
The Defendant maintains that Section 1332(d)(4) is not applicable
because the class definition in the original complaint is broad and
includes students at NYIT's overseas campuses and its campus in
Arkansas. It insists that those campuses must be considered as part
of the calculus under Section 1332(d)(4) as the definition of the
class in the original complaint did not explicitly exclude NYIT's
foreign campuses or explicitly limit the class to its New York
campuses.
In opposing the Plaintiff's remand motion, the Defendant also
asserts that the Plaintiff's attempts to amend the complaint after
removal are irrelevant and insists that, in determining the scope
of the putative class for purposes of Section 1332(d)(4), the
Court must look solely to the definition of the class in original
complaint.
Given all the circumstances, Judge Azrack holds that there is a
strong argument that the Court should accept, and consider, the
Plaintiff's stipulation to exclude the campuses outside of New York
and to limit the putative class to students who signed up to attend
classes at NYIT's New York campuses. When reading the original
complaint in its entirety, she does not believe that the Plaintiff
intended to pursue a class that included NYIT's campuses outside of
New York, particularly the campuses located overseas.
The class claims in the original complaint are brought under New
York law, which is a strong indication that the Plaintiff was
focused on the students at the two main campuses located in New
York. The Plaintiff herself was enrolled in New York and it is
doubtful that she -- who never references any of the campuses
outside of New York in the original complaint -- intended to
include foreign students at the overseas campuses given the obvious
difficulties that certification of such a class would entail.
Judge Azrack holds that it is ultimately unnecessary to decide this
issue because, even if the Court were required to exclude
post-removal amendments from its consideration and were to find
Section 1332(d)(4) inapplicable, it would exercise its discretion
under Section 1332(d)(3) and would remand the case on that basis.
The Plaintiff then asserts that, even if Section 1332(d)(4) is not
satisfied, remand is warranted under 28 U.S.C. Section 1332(d)(3).
Under Section 1332(d)(3), a "district court may decline to exercise
jurisdiction over a class action under CAFA in which greater than
one-third but less than two-thirds of the members of all proposed
plaintiff classes in the aggregate and the primary defendants are
citizens of the State in which the action was originally filed."
In making this determination, the Court weighs the "the interests
of justice" and the "totality of the circumstances" based on six
specific factors set out in Section 1332(d)(3). Judge Azrack finds
that even when the class includes all of NYIT's campuses and only
the original complaint is considered, the Plaintiff has established
by a preponderance of the evidence that more than one-third of the
class members are citizens of New York.
Judge Azrack concludes that a discretionary remand under Section
1332(d)(3) is appropriate. She finds that (i) the case primarily
involves campuses in New York State and citizens of New York; (ii)
the vast majority of the putative class members were enrolled at
NYIT's campuses located in New York and their claims will be
governed by New York law, which will be the primary focus; (iii)
the original class action complaint was not pleaded in a manner to
avoid federal jurisdiction; (iv) the action was originally brought
in New York state court and New York has the most obvious nexus to
the class members, the alleged harm, and the Defendant; (v) there
are a total of 4,334 New York class members and there are
substantially more New York class members at the New York campuses
than class members from other states; and (vi) there is no evidence
that any similar class actions have been filed against NYIT in the
preceding three years and the Defendant does not argue otherwise.
The Defendant insists that the Plaintiff is engaged in
forum-shopping and is seeking to avoid recent adverse rulings by
other district courts in the Second Circuit. These arguments do not
convince Judge Azrack that remand is inappropriate. She points out
that the Plaintiff filed suit in state court before any of the
adverse federal decisions cited by the Defendant. Moreover, the
Court stayed discovery pending the resolution of motions to dismiss
that were pending the Southern District. Finally, concerns about
forum shopping are addressed by Section 1332(d)(3)(C), which
considers whether the class action has been pleaded in a manner
that seeks to avoid federal jurisdiction.
In view of the foregoing, Judge Azrack finds it is appropriate to
decline jurisdiction under Section 1332(d)(3) and to remand the
action back to state court. Accordingly, he grants the Plaintiff's
remand motion. The Clerk of Court is respectfully directed to
remand the action to Supreme Court, Nassau County, and to close the
case.
A full-text copy of the Court's Oct. 5, 2022 Order is available at
https://tinyurl.com/4hhzmxpe from Leagle.com.
NONNI'S FOODS: Court Grants Bid to Stay Discovery in Bardsley Suit
------------------------------------------------------------------
In the case, Lisa Bardsley, individually and on behalf of all
others similarly situated, Plaintiff v. Nonni's Foods LLC,
Defendant, Civil Action No. 7:20-cv-02979 NSR (S.D.N.Y.), Judge
Nelson S. Roman of the U.S. District Court for the Southern
District of New York grants Nonni's' Motion for Stay of Discovery
pursuant to Federal Rule of Civil Procedure 26.
By Opinion & Order dated March 16, 202, the Court dismissed with
prejudice all claims in the Plaintiff's First Amended Class Action
Complaint ("FAC"), except for the Plaintiff's class action claims
under New York General Business Law Sections 349 and 350.
On April 7, 2022, the Court granted the Defendant leave to file a
Renewed Motion to Dismiss First Amended Complaint and entered a
briefing schedule.
On June 23, 2022, the Defendant filed its Motion to Dismiss, the
purpose of which was to demonstrate to a legal certainty that the
Plaintiff cannot satisfy the amount-in-controversy and
jurisdictional requirements set forth in the Class Action Fairness
Act of 2005 ("CAFA"). It now moves the Court to stay all discovery
pending a ruling on its Motion to Dismiss because the Motion to
Dismiss is outcome determinative.
The Plaintiff does not consent to a stay of discovery and, instead,
has served her First Set of Discovery Requests, which includes 14
interrogatories, 36 document requests, and 6 requests for
admission.
In determining whether to stay discovery, courts should consider:
"(1) the breadth of discovery sought, (2) any prejudice that would
result, and (3) the strength of the motion." A stay of discovery is
appropriate pending resolution of a dispositive motion where the
pending motion "appears to have substantial grounds or, stated
another way, does not appear to be without foundation in law."
In this case, Judge Roman finds that the Defendant's Motion to
Dismiss has substantial grounds and is firmly rooted in legal
foundation. The three factors considered by the Court in
determining whether a stay of discovery is appropriate all favor
the granting of a stay.
First, the Plaintiff's initial discovery requests are incredibly
broad and include 36 separate document requests alone. Should
discovery be permitted, the Defendant will have to spend
considerable time, money, and resources in order to respond.
Second, there is no prejudice to the Plaintiff if discovery is
stayed. The Defendant has not made the at-issue product in the
at-issue box since Sept. 28, 2016 (over 5 plus years ago). On the
other hand, if the stay is not granted, Defendant will be extremely
prejudiced. In addition to the inordinate time and expense involved
with discovery, forcing Defendant to participate in discovery will
cause prejudice and undue burden, particularly given the strength
of the Defendant's Motion to Dismiss.
Third, the Defendant's Motion to Dismiss has strong legal grounds
that warrant dismissal of the last remaining claim in the FAC in
its entirety. Defendant has provided two supplemental affidavits
demonstrating to a legal certainty that its sales were less than
$100,000 and that the Plaintiff cannot overcome her burden that her
claim is in excess of the $5 million statutory jurisdictional
amount.
Given the strength of the Defendant's Motion to Dismiss, Judge
Roman holds that a stay of discovery is proper. The interest of the
Court is also advanced by staying discovery. Rather than preside
over the litigation, the Court can decide an outcome-determinative
issue that will result in total dismissal of the case. This will
conserve judicial resources and timely administration of the
Court's docket.
Hence, Judge Roman finds that all three factors favor the granting
of a stay, and the Court recently granted such a stay in a similar
situation involving a pending dispositive motion in Felberbaum v.
LVNV Funding LLC, No. 7:21-cv-09513-NSR (S.D.N.Y. Feb. 17, 2022).
For these reasons, Judge Roman grants Nonni's' request and stays
all discovery pending a ruling on its Motion to Dismiss.
A full-text copy of the Court's Oct. 5, 2022 Order is available at
https://tinyurl.com/4yymt8pe from Leagle.com.
NONNI'S FOODS, LLC, Joshua D. Baker, Esq. -- jbaker@metzlewis.com
-- Metz Lewis Brodman Must O'Keefe LLC, Pittsburgh, PA, Admitted
Pro Hac Vice.
PERFORMANCE FOOD: Rodriguez Labor Suit Removed to N.D. California
-----------------------------------------------------------------
The case styled MARCOS RODRIGUEZ, an individual, on behalf of
himself and on behalf of all persons similarly situated, Plaintiff
v. PERFORMANCE FOOD GROUP, INC., a Colorado corporation; and DOES
1-50, Inclusive, Defendants, Case No. 22CV2017191, was removed from
the Superior Court of the State of California in and for the County
of Alameda to the U.S. District Court for the Northern District of
California on Oct. 7, 2022.
The Clerk of Court for the Northern District of California assigned
Case No. 4:22-cv-05852 to the proceeding.
The Plaintiff's complaint asserts purported causes of action under
the California Labor Code for: (1) failure to pay minimum wages;
(2) failure to pay overtime wages; (3) failure to provide required
meal periods; (4) failure to provide required rest periods; (5)
failure to provide accurate itemized statements; and (6) failure to
reimburse employees for required expenses. The Plaintiff further
alleges unfair competition in violation of California Business &
Professions Code.
Performance Food Group, Inc. is a broadline foodservice
distributor.[BN]
The Defendant is represented by:
Sabrina A. Beldner, Esq.
Andrew W. Russell, Esq.
Natalie M. Lagunas, Esq.
Sarah Y. Oh, Esq.
MCGUIREWOODS LLP
1800 Century Park East, 7th Floor
Los Angeles, CA 90067
Telephone: (310) 315-8200
Facsimile: (310) 315-8210
E-mail: sbeldner@mcguirewoods.com
arussell@mcguirewoods.com
nlagunas@mcguirewoods.com
soh@mcguirewoods.com
RETAIL SERVICES: Appeals Remand Order in Asabre to 4th Cir.
-----------------------------------------------------------
RETAIL SERVICES & SYSTEMS, INC., d/b/a Total Wine & More, is taking
an appeal from a court order granting the Plaintiff's motion to
remand and denying as moot its motion to dismiss in the lawsuit
entitled Eva Asabre, individually and on behalf of others similarly
situated, Plaintiff, v. Retail Services & Systems, Inc., d/b/a
Total Wine & More, Defendant, Case No. 8:22-cv-00148-PWG, in the
U.S. District Court for the District of Maryland.
As previously reported in the Class Action Reporter, this class
action suit -- which was removed from the Circuit Court for
Montgomery County, Maryland, to the United States District Court
for the District of Maryland -- alleges that the Defendant violated
the Maryland Commercial Electronic Mail Act (MCEMA) by sending
e-mail communications that contained misleading subject lines.
On January 21, 2022, the Plaintiff filed a motion to remand the
case to state court.
On January 26, 2022, the Defendant filed a motion to dismiss for
failure to state a claim.
On September 19, 2022, Judge Paul W. Grimm granted the Plaintiff's
motion and remanded the case to the Circuit Court of Maryland for
Montgomery County. The Defendant's motion to dismiss was denied as
moot.
The appellate case is captioned Retail Services & Systems, Inc. v.
Eva Asabre, Case No. 22-281, in the United States Court of Appeals
for the Fourth Circuit, filed on September 27, 2022. [BN]
Defendant-Petitioner RETAIL SERVICES & SYSTEMS, INC., d/b/a Total
Wine & More, is represented by:
John J. Connolly, Esq.
ZUCKERMAN SPAEDER, LLP
100 East Pratt Street
Baltimore, MD 21202
Telephone: (410) 332-0444
- and -
William James Murphy, Esq.
ZUCKERMAN SPAEDER, LLP
100 East Pratt Street
Baltimore, MD 21202
Telephone: (410) 783-7000
Plaintiff-Respondent EVA ASABRE, on her own behalf and on behalf of
all others similarly situated, is represented by:
Jeffrey C. Toppe, Esq.
David M. Trojanowski, Esq.
Z LAW, LLC
2345 York Road
Timonium, MD 21093
Telephone: (443) 213-1977
ST. LOUIS, MO: Williams Ordered to State Plans Regarding Cody Suit
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In the case, RICARDO WILLIAMS, Plaintiff v. CITY OF ST. LOUIS, et
al., Defendants, Case No. 4:21 CV 140 CDP (E.D. Mo.), Judge
Catherine D. Perry of the U.S. District Court for the Eastern
District of Missouri, Eastern Division, orders the Plaintiff to
file a memorandum indicating whether he intends to opt out of the
Cody class action and pursue his individual claim, or whether he
intends to proceed as a member of the Cody class action.
The matter is before the Court on the Defendants' motion to stay
discovery on the Plaintiff's conditions of confinement claim. The
asserted basis for this motion is that the Plaintiff falls within a
certified class of opt-in plaintiffs in a class action relating to
the conditions of confinement at the St. Louis City Medium Security
Institution while he was held there as a pre-trial detainee in
2018.
The class was certified by the Honorable Audrey G. Fleissig in Cody
v. City of St. Louis, 4: 17 CV 2707 AGF, on May 25, 2022. The City
obtained permission to appeal the class certification ruling to the
Eighth Circuit Court of Appeals on June 28, 2022. The Defendants
therefore contend that Judge Perry should stay all discovery
relating to the Plaintiff's conditions of confinement claim pending
the Eighth Circuit's ruling in Cody.
While it is true that the Plaintiff cannot pursue his individual
claim in the present case and also be a member of the Cody class,
Judge Perry holds that the Defendant ignores the fact that the
Court never sent notice of the class action or provided opt-out
forms to the class members because the parties sought and obtained
a stay of proceedings in Cody. Judge Fleissig has administratively
closed her case pending the Eighth Circuit's ruling in Cody.
Given that the Defendants have filed this motion two days before
scheduled mediation, Judge Perry requires the Plaintiff to file a
memorandum indicating whether he intends to opt out of the Cody
class action and pursue his individual claim, or whether he intends
to proceed as a member of the Cody class action. She will deny the
motion to stay if the Plaintiff elects to proceed on his individual
claims as the Defendants make no other compelling arguments in
favor of granting a stay.
A full-text copy of the Court's Oct. 5, 2022 Memorandum & Order is
available at https://tinyurl.com/yck8xjj2 from Leagle.com.
SUNDIAL GROWERS: Order & Final Judgment Entered in Securities Suit
------------------------------------------------------------------
Judge Andrew L. Carter of the U.S. District Court for the Southern
District of New York enters an Order and Final Judgment in the
case, IN RE SUNDIAL GROWERS INC., SECURITIES LITIGATION. This
Document Relates To: All Actions, Master File No. 1:19-cv-08913-ALC
(S.D.N.Y.).
The Notice and the Summary Notice, substantially in the forms
approved by the Court in its Order Granting Lead Plaintiffs' Motion
for Preliminary Approval of Class Action Settlement, dated June 23,
2022, were provided to all reasonably identifiable Settlement Class
Members and posted to the website of the Claims Administrator, both
in accordance with the Preliminary Approval Order and the
specifications of the Court.
Judge Carter finally certifies, for settlement purposes only, the
action as a class action for purposes of the Settlement, pursuant
to Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure,
on behalf of all Persons who purchased or acquired Sundial common
stock in or pursuant and/or traceable to the offering documents
issued in connection with Sundial's IPO.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, for
the purposes of the Settlement only, the Plaintiffs are certified
as the class representatives on behalf of the Settlement Class and
the Lead Counsel previously selected by the Lead Plaintiffs and
appointed by the Court is appointed as the Class Counsel for the
Settlement Class.
All Settlement Class Members are bound by the Order and Final
Judgment except those persons listed on Exhibit A to the Order and
Final Judgment.
The Settlement is approved as fair, reasonable and adequate under
Rule 23 of the Federal Rules of Civil Procedure, and in the best
interests of the Settlement Class. The Settling Parties are
directed to consummate the Settlement in accordance with the terms
and provisions of the Settlement Stipulation.
The Action and all claims contained therein, as well as all of the
Released Claims, are fully and finally dismissed with prejudice as
against the Defendants, the Defendants' Related Parties and the
other Released Parties. The Settling Parties are to bear their own
costs, except as otherwise provided in the Settlement Stipulation.
Nothing contained in the Order and Final Judgment will, however,
bar the Releasing Parties from bringing any action or claim to
enforce it or the terms of the Settlement Stipulation.
Nothing in the Settlement Stipulation or the Order and Final
Judgment will apply to bar or otherwise affect any claim for
insurance coverage by any Defendant or any claim brought directly
by or derivatively on behalf of any Defendant against any of its
Related Parties, any other Defendant, or any other Defendant's
Related Parties.
Except as otherwise provided in the Order and Final Judgment or in
the Settlement Stipulation, all funds held by the Escrow Agent will
be deemed to be in custodia legis and will remain subject to the
jurisdiction of the Court until such time as the funds are
distributed or returned pursuant to the Settlement Stipulation
and/or further order of the Court.
Without affecting the finality of the Order and Final Judgment in
any way, the Court hereby retains continuing exclusive jurisdiction
over the Settling Parties and the Settlement Class Members for all
matters relating to the Action.
Without further order of the Court, the Defendants and the Class
Representatives may agree to reasonable extensions of time to carry
out any of the provisions of the Settlement Stipulation.
There is no just reason for delay in the entry of the Order and
Final Judgment and immediate entry by the Clerk of the Court is
expressly directed pursuant to Rule 54(b) of the Federal Rules of
Civil Procedure.
The finality of the Order and Judgment will not be affected, in any
manner, by rulings that the Court may make or any appeals relating
to the Plan of Allocation, the Class Counsel's application for an
award of attorneys' fees and expenses, or an award to the Class
Representatives.
A full-text copy of the Court's Oct. 5, 2022 Order & Final Judgment
is available at https://tinyurl.com/3ttnst2e from Leagle.com.
TEXAS: Judgment on Douthit's Section 1983 Claims v. TDCJ Affirmed
-----------------------------------------------------------------
In the case, Shannon Mark Douthit, Plaintiff-Appellant v. Bryan
Collier; Robert Herrera; Felipe J. Peralta, Jr.; Mitchell D. Kroll;
Sergio Perez, Defendants-Appellees, Case No. 20-20550 (5th Cir.),
the U.S. Court of Appeals for the Fifth Circuit enters an order:
a. affirming the district court's judgment on Douthit's
Section 1983 claims;
b. affirming the dismissal of Douthit's Americans with
Disabilities Act (ADA) claims related to air-conditioned
accommodations;
c. affirming the dismissal of all ADA claims as to Bryan
Collier, Executive Director of the Texas Department of
Criminal Justice (TDCJ), and Robert Herrera, Warden of the
Pack Unit 1; and
d. vacating the judgment as to Douthit's shakedown-related ADA
claims against the Defendants other than Collier and
Herrera, and remands for further proceedings.
Mr. Douthit, Texas prisoner #453033, sued the executive director of
the Texas Department of Criminal Justice (TDCJ), plus a warden, two
lieutenants, a sergeant, and a major, all in their official
capacities. Construed liberally, Douthit's pro se Complaint also
included claims against the State of Texas and the Correctional
Institutions Division of the TDCJ.
Mr. Douthit's Complaint states that he is obese and sensitive to
heat and that he has an amputated leg. He claims the Defendants
violated Title II of the ADA, 42 U.S.C. Section 12131 et seq., in
two ways: (1) forcing him to carry his personal belongings during
unit-wide "shakedowns" (searches of personal property for
contraband); and (2) denying him air-conditioned accommodations as
required by a court order issued in Cole v. Collier, a separate
class action in which Douthit is a class member. Construing
Douthit's Complaint liberally, the district court interpreted the
Complaint as including claims under 42 U.S.C. Section 1983 for
unconstitutional retaliation by prison officials in response to his
participation in the class action.
The district court dismissed Douthit's ADA and Section 1983 claims
pursuant to Federal Rules of Civil Procedure Rule 12(b)(6) for
failure to state a claim and Rule 12(b)(1) for lack of
subject-matter jurisdiction. Specifically, it said that Douthit
failed to state an ADA claim because he did not allege specific
facts that would give rise to the reasonable inference that the
Defendants "intentionally discriminated against him because of any
disability." It also held that it lacked subject-matter
jurisdiction over the ADA claims because Douthit's ADA claims are
barred by state sovereign immunity. As to Douthit's retaliation
claims, the district court held that Douthit has not sufficiently
alleged a retaliatory motive by the Defendants, and he has not
alleged a chronology of events from which retaliation may be
plausibly inferred.
The Fifth Circuit holds that Douthit's pro se Complaint contained
sufficient facts to state plausible ADA claims as to all the
Defendants except Executive Director Collier and Warden Herrera.
While Douthit did not explicitly plead a failure-to-accommodate
theory, the circumstances included in his liberally construed
complaint, best fit into a failure-to-accommodate framework under
the ADA.
Not all of Douthit's claims survive dismissal, though, the Fifth
Circuit points out. It says his ADA claim for failure to provide
air-conditioning alleges that he was left behind when other
heat-sensitive members of the Cole v. Collier class were
transferred to air-conditioned lodgings pursuant to a court order
issued in that case. However, Douthit does not allege that any of
the Defendants in the current action had actual knowledge that the
order from the class action lawsuit applied to him. Therefore, he
failed to plead the notice prong of an ADA failure-to-accommodate
claim. The claims against Executive Director Collier and Warden
Herrera similarly fail. While Douthit pleaded particularized facts
as to the actions of all other defendants, he included only one
conclusory statement about Collier and Herrera.
The district court alternatively held that sovereign immunity
barred Douthit's ADA claims. The Fifth Circuit holds that Douthit's
Complaint contained sufficient facts to state a claim that immunity
was abrogated. As a threshold matter, it finds that the Defendants
point out that Douthit's counseled brief, which is not entitled to
liberal construction, does not discuss the immunity issue. While
the Defendants are correct, the Fifth Circuit usees its discretion
to address sovereign immunity for two reasons: (1) there is no
prejudice as Defendants have briefed the issue, and (2) the
district court's ruling lacks clarity concerning whether it
included an alternative dismissal of Douthit's ADA claims on the
basis of immunity. It thus proceeds to address sovereign immunity.
Mr. Douthit's ADA claims seek money damages against the Defendants
in their official capacities. The Eleventh Amendment bars such
suits unless the state has waived or Congress has validly abrogated
sovereign immunity. In the present case, Texas has not waived
sovereign immunity, so the question is whether Congress has validly
abrogated.
The Fifth Circuit states that Title II of the ADA abrogates state
sovereign immunity where it prohibits conduct that violates the
Fourteenth Amendment or where Congress' abrogation power is
"nevertheless valid." Congress' abrogation power is 'nevertheless
valid' where Title II imposes requirements that are 'congruent and
proportional' to an identified 'pattern of unconstitutional
exclusion and discrimination' -- even if it sweeps in some conduct
that is not itself unconstitutional.
It, thus, becomes necessary to evaluate whether the particularized
facts that Douthit pleaded state a claim under the Fourteenth
Amendment or whether Congress' abrogation power is nevertheless
valid. Because the Eighth Amendment applies to the states through
the Fourteenth Amendment, an ADA violation that is also an Eighth
Amendment violation actually violates the Fourteenth Amendment."
A prison official's "deliberate indifference" to a substantial risk
of serious harm to an inmate violates the Eighth Amendment. In a
constitutional claim alleging deliberate indifference to the
conditions of a prisoner's confinement, the plaintiff must satisfy
both the "subjective and objective requirements" of the Eighth
Amendment inquiry. To satisfy the objective requirement, the
plaintiff must show an "objectively intolerable risk of harm." To
satisfy the subjective requirement, the plaintiff must show that
the defendant: "(1) was 'aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists'; (2)
subjectively 'drew the inference' that the risk existed; and (3)
disregarded the risk."
The Fifth Circuit does not decide whether a constitutional
violation actually occurred, but only whether the Title II
violations that Douthit pleaded in his Complaint are also
sufficient to state a claim under the Fourteenth Amendment, thereby
abrogating sovereign immunity. Construed liberally, it finds that
Douthit's pleadings are sufficient to state a claim under the
Fourteenth Amendment.
The analysis is similar to that of the ADA claim, according to the
Fifth Circuit. Douthit pleaded an "objectively intolerable risk of
harm" -- being forced to carry personal belongings despite serious
disabilities and a medical lifting restriction. Douthit also
alleges that the Defendants were aware of the risk but disregarded
it. He also claims that despite his formal grievances and
statements alerting prison officials to his disabilities and the
risks he faced, the Defendants did not mitigate the risks. In light
of these allegations, the Fifth Circuit holds that Douthit's
pleadings plausibly alleged that the Defendants' misconduct
violated the Fourteenth Amendment.
In view of the foregoing, the Fifth Circuit affirms the district
court's judgment on Douthit's Section 1983 claims because he
forfeited any challenge to the district court's ruling on those
claims by failing to brief the issue in his opening brief on
appeal. It also affirms the dismissal of Douthit's ADA claims
related to air-conditioned accommodations. It further affirms the
dismissal of all ADA claims as to Executive Director Collier and
Warden Herrera. As to Douthit's shakedown-related ADA claims
against Defendants other than Collier and Herrera, the Fifth
Circuit vacates the judgment and remands for further proceedings.
A full-text copy of the Court's Oct. 5, 2022 Order is available at
https://tinyurl.com/4awpm98t from Leagle.com
TILRAY BRANDS: Parties Continue to Finalize Settlement Agreement
----------------------------------------------------------------
Tilray Brands Inc. disclosed in its Form 10-Q Report filed for the
quarterly period ended August 31, 2022 filed with the Securities
and Exchange Commission on October 7, 2022, that the parties
continue to talk and to finalize definitive settlement agreement
specific terms and conditions of Braun v. Kennedy, C.A. No.
2020-0137-KSJM.
On February 27, 2020, Tilray stockholders Deborah Braun and Nader
Noorian filed a class action and derivative complaint in the
Delaware Court of Chancery styled Braun v. Kennedy, C.A. No.
2020-0137-KSJM.
On March 2, 2020, Tilray stockholders Catherine Bouvier, James
Hawkins, and Stephanie Hawkins filed a class action and derivative
complaint in the Delaware Court of Chancery styled Bouvier v.
Kennedy, C.A. No. 2020-0154-KSJM.
On March 4, 2020, the Delaware Court of Chancery entered an order
consolidating the two cases and designating the complaint in the
Braun/Noorian action as the operative complaint. The operative
complaint asserts claims for breach of fiduciary duty against
Brendan Kennedy, Christian Groh, Michael Blue, and Privateer
Evolution, LLC (the "Privateer Defendants") for alleged breaches of
fiduciary duty in their alleged capacities as Tilray's controlling
stockholders and against Kennedy, Maryscott Greenwood, and Michael
Auerbach for alleged breaches of fiduciary duties in their
capacities as directors and/or officers of Tilray in connection
with the prior merger of Privateer Holdings, Inc. with and into a
wholly owned subsidiary (the "Downstream Merger"). The complaint
alleges that the Privateer Defendants breached their fiduciary
duties by causing Tilray to enter into the Downstream Merger and
Tilray's Board to approve that Downstream Merger, and that
Defendants Kennedy, Greenwood, and Auerbach breached their
fiduciary duties as directors by approving the Downstream Merger.
Plaintiffs allege that the Downstream Merger gave the Privateer
Defendants hundreds of millions of dollars of tax savings without
providing a corresponding benefit to Tilray and its minority
stockholders and that the Downstream Merger unfairly transferred
and extended Kennedy, Blue, and Groh's control over Tilray.
On July 17, 2020, the plaintiffs filed an amended complaint
asserting substantially similar claims.
On August 14, 2020, Tilray and the Privateer Defendants moved to
dismiss the amended complaint.
At the February 5, 2021 hearing on Defendants' Motions to Dismiss,
the Plaintiffs agreed that their perpetuation of control claims are
moot and stated that they intend to move for a fee award in
connection with those claims.
On June 1, 2021, the Court denied Defendants' Motions to Dismiss
the Amended Complaint.
In August 2021, the Company's Board of Directors established a
Special Litigation Committee (the "SLC") of independent directors
to re-assert director control and investigate the derivative claims
in this litigation matter. The SLC has appointed the law firm
Wilson Sonsini to assist the SLC with an ongoing investigation of
the underlying claim and determine whether continued prosecution of
such claims is in the best interests of the Company. The SLC has
successfully moved to have the Plaintiff's discovery stayed during
their investigation.
On May 27, 2022, the SLC informed the Court that it had completed
its investigation; determined not to seek dismissal of the Action;
and confirmed its determination that the Company had suffered
significant damages and that the SLC would pursue claims to recover
appropriate amounts for the Company's benefit. Thereafter, the SLC,
all of the Defendants, and certain non-parties participated in two
mediation sessions before former Chancellor of the Delaware Court
of Chancery Andre G. Bouchard on June 27 and July 14, 2022.
On July 15, 2022, the SLC reached an agreement in principle with
the Defendants and certain of the non-parties, and their respective
insurers, to resolve the claims asserted in the Action in exchange
for an aggregate amount of $26.9 million to be paid to Tilray plus
mutual releases. The parties' binding term sheet remains subject to
execution of long-form settlement agreements with the respective
parties and approval by the Court of Chancery.
The SLC notified the Court of Chancery of the parties' agreement in
principle via letter dated July 18, 2022.
As of September 30, 2022, the parties are continuing to negotiate
and finalize the specific terms and conditions of the definitive
settlement agreement.
Tilray Brands, Inc., and its wholly owned subsidiaries is a global
cannabis-lifestyle and consumer packaged goods company
headquartered in Leamington, Ontario, Canada, with operations in
Canada, the United States, Europe, Australia, New Zealand and
Latin
America.
UNITED RECOVERY: Faces Sun Suit Over Illegal Debt Collection
-------------------------------------------------------------
Wenting Sun and Xujian Chen, v. UNITED RECOVERY SERVICES, LLC D/B/A
UNITED TRUSTEE SERVICES, AND GLEN LOMA RANCH MASTER ASSOCIATION,
Case 3:22-cv-05887 (N.D. Cal., Oct. 7, 2022) is a class action
alleging that the Defendants engaged in unlawful debt collection
practices in violation of the Fair Debt Collection Practices Act
and the Rosenthal Act.
According to the complaint, the Defendants collect and attempt to
collect debts incurred or alleged to have been incurred for
personal, family or household purposes on behalf of creditors using
the United States Postal Services, telephone or Internet.
On August 23, 2022, the Defendants sent a collection letter to the
Plaintiffs in attempts to collect upon the alleged debt.
Specifically, the Defendants' Letter failed to provide the Class "a
statement that if the consumer notifies the debt collector in
writing within the 30-day period that the debt or any portion
thereof is disputed the debt collector will obtain verification of
the debt or a copy of a judgment against the consumer and a copy of
such verification or judgment will be mailed to the consumer by the
debt collector" in violation of 15 U.S.C. section 1692g(a)(4), says
the suit.
The Plaintiffs allegedly incurred a financial obligation to an
original creditor, Defendant Glen Loma. The Plaintiffs are
uncertain and do not concede that a debt is actually owed to the
Defendants or its predecessor(s) in interest, they claim.
URS is a debt collection agency.[BN]
The Plaintiffs are represented by:
David J. McGlothlin, Esq.
Mona Amini, Esq.
Gustavo Ponce, Esq.
KAZEROUNI LAW GROUP, APC
245 Fischer Ave Ste D1
Costa Mesa, CA 92626
Telephone: (949) 612-9999
E-mail: david@kazlg.com
UNITED STATES: Agrees to Settle PACER Class Action for $125-Mil.
----------------------------------------------------------------
Nate Raymond of Reuters.com published that The U.S. government has
agreed to pay $125 million to refund users of the electronic
records system known as PACER to resolve a class action lawsuit
alleging the judiciary overcharged members of the public who
downloaded court documents.
The settlement, which was disclosed in a filing on Tuesday in
federal court in Washington, D.C., would provide automatic
reimbursements of up to $350 in fees for anyone who used PACER from
April 2010 to May 2018.
Anyone who paid more than $350 during that time can receive a
pro-rata share of the remaining settlement funds. The "vast
majority" of PACER users will be reimbursed in full, the court
papers said, and attorney's fees and expenses are capped at 20%.
The settlement covers only past charges and will not eliminate
costly fees the public currently incurs to access records through
PACER, though the U.S. Senate Judiciary Committee in December
advanced a bill that would do just that.
Deepak Gupta, a lawyer for the plaintiffs at Gupta Wessler, said on
Twitter the accord "reflects a long-awaited recognition by the
federal judiciary that it can no longer use PACER fees as a profit
center to fund unrelated activities."
The Administrative Office of the U.S. Courts in a statement said it
was pleased to have resolved the case and was focused on
modernizing PACER. It noted a judge had found the "vast majority of
PACER fees were appropriately allocated."
Currently, users of PACER, which stands for Public Access to Court
Electronic Records, are charged $0.10 per page to download
documents up to a $3 cap. The cap does not apply to transcripts.
The judiciary collects about $150 million in fees annually on
average.
Despite calls to make PACER free, the judiciary has resisted doing
so, though it has reduced costs. In 2019, the judiciary said it
would waive quarterly fees of $30 or less and, more recently, in
March agreed to eliminate fees for record searches.
The settlement resolves a 2016 lawsuit filed by the nonprofits the
National Veterans Legal Services Program, the National Consumer Law
Center, and Alliance for Justice alleging the judiciary overstepped
its authority when collecting fees.
U.S. District Judge Ellen Huvelle 2018 partly sided with the
plaintiffs, holding Congress had not approved using about $198
million in fees for courtroom technology improvements, web-based
juror services, and a crime victims’ notification system.
The U.S. Court of Appeals for the Federal Circuit upheld her
decision in 2020, though it had remanded the case to determine if
some additional costs were justified.
The case is National Veterans Legal Services Program v. the United
States, U.S. District Court for the District of Columbia, No.
16-cv-745.
For the plaintiffs: William Narwold, Meghan Oliver, and Elizabeth
Smith of Motley Rice; and Deepak Gupta and Jonathan Taylor of Gupta
Wessler
For the United States: Jeremy Simon and Robert Caplen of the U.S.
Justice Department
NOTE: This story has been updated with further details on the
settlement, and a comment from Deepak Gupta.
Federal Circuit rules U.S. courts overcharged on PACER, plaintiffs'
lawyer predicts big refunds. [GN]
UNITED STATES: More XRP Holders Join Class Action Against SEC
-------------------------------------------------------------
Lele Jima, writing for The Crypto Basic, reports that more XRP
holders are now against the SEC for causing them huge losses via
its lawsuit.
The number of Ripple (XRP) holders represented by attorney John
Deaton in a class action against the Securities and Exchange
Commission has continued to increase.
Over 75,000 XRP holders have joined Deaton's class action against
the SEC. A few weeks after, attorney Deaton disclosed that the
number of XRP holders in the suit had surpassed 71,000.
As the lawsuit between the SEC and Ripple enters the summary
judgment phases, more XRP holders see the need to join Deaton's
class action.
The class action is due to the huge losses XRP investors suffered
following a lawsuit filed by the SEC against Ripple. The Securities
and Exchange Commission claims that XRP is a security, adding that
Ripple breached U.S. securities laws by conducting an unregistered
offering for the cryptocurrency in 2013.
After the SEC filed the lawsuit, several United States-based crypto
exchanges like Coinbase were prompted to discontinue support for
XRP. These cryptocurrency exchanges fear that the SEC could probe
them for facilitating the trading of XRP, which it claims to be a
security.
Following the de-listing of XRP from various U.S.-based exchanges,
the value of XRP crashed tremendously, plunging many investors into
huge losses. Ripple General Counsel Stuart Alderoty described the
SEC lawsuit against the SEC as a rug pull on XRP investors.
Attorney Deaton's Push for Justice
Meanwhile, attorney Deaton is determined to get justice for XRP
victims of the SEC lawsuit, and the process has continued to gain
momentum.
In a recent tweet, the Crypto Law founder called on the XRP
community to provide info about Ripple, Bitcoin, and Ethereum's
market capitalization as of January 3, 2018.
"I need help with something. How can I determine how much of the
total market cap Bitcoin, ETH, and XRP made up in January 2018?…"
Deaton requested.
The official Crypto Law Twitter account also echoed Attorney
Deaton's request, asking community members to engage with Deaton
for the required information as he continues to work on behalf of
75K XRP holders. [GN]
WALGREENS BOOTS: Smith Appeals Opioid Case Dismissal to 9th Cir.
----------------------------------------------------------------
SUSAN SMITH is taking an appeal from a court order granting the
Defendants' motion to dismiss with prejudice in her lawsuit
entitled Susan Smith, individually and on behalf of others
similarly situated, Plaintiff, v. Walgreens Boots Alliance, Inc.,
et al., Defendants, Case No. 3:20-cv-05451-CRB, in the U.S.
District Court for the Northern District of California.
The Plaintiff brings a nationwide class action lawsuit against
Walgreens, alleging that Walgreens maintains a policy relating to
prescription opioid dispensing that discriminates against disabled
people.
In 2016, the Center for Disease Control ("CDC") published
guidelines to provide "better clinician guidance on opioid
prescribing." The CDC guidelines recommend that clinicians
"prescribe the lowest effective dosage" of opioids and "carefully
justify" decisions to prescribe opioid dosages that exceed 90
morphine milligram equivalents ("MMEs"). In addition, they
recommend that when "opioids are used for acute pain," a clinician
"should prescribe no greater quantity than needed for the expected
duration of pain severe enough to require opioids." More
specifically, the guidelines state that when opioids are prescribed
for acute pain: "Three days or less will often be sufficient; more
than seven days will rarely be needed."
The Plaintiff alleges that in the 2010s, various pharmacies,
including Walgreens, faced lawsuits alleging that they "had
inadequate policies and procedures in place to ensure that
prescriptions they filled were valid prescriptions for legitimate
medical purposes." She alleges that in response to the lawsuits,
Walgreens improperly used the CDC guidelines to create a policy
that discriminates against disabled people. In particular,
Walgreens allegedly implemented a policy to discourage its
pharmacists from filling opioid prescriptions that exceed 90 MMEs
and 7 days (the "dose and duration threshold"). She alleges that
Walgreens' policy "incentivizes, pressures and/or instructs,
expressly or implicitly, its pharmacists to not fill such
prescriptions and/or fill them at lesser amounts which do not
exceed the CDC Guideline dose and duration thresholds, treating
those thresholds as hard and fast limits."
The alleged policy does not prevent Walgreens pharmacists from
filling opioid prescriptions that exceed the dose and duration
threshold. Instead, the alleged policy "actively discourages and
burdens the process of filling valid prescriptions exceeding the
Guideline dosage and duration thresholds." The Plaintiff alleges
that "Walgreens' pharmacists are made aware through their managers
and their training that by filling such prescriptions, the
pharmacists are susceptible to being fired and risk being left on
their own in any civil or criminal investigation relating to the
filling of the prescription." To avoid "being fired" and "being
left on their own in any civil or criminal investigation,"
Walgreens pharmacists allegedly "take steps to avoid having to fill
the prescription by imposing obstacles that others whose
prescriptions are not for opioids exceeding the CDC Guideline dose
and duration thresholds do not face."
The Plaintiff alleges that the dose and duration policy
discriminates on the basis of disability because "research has
suggested a link between opioid prescriptions and disability
program participation." She alleges that "persons receiving
prescriptions which exceed the higher end of the dosage (90 MME)
and duration (7 days) thresholds are highly likely to be disabled
within the meaning of the ADA."
The Court has twice granted Walgreens' motions to dismiss, and
Walgreens has again moved to dismiss the Plaintiff's Third Amended
Complaint ("TAC"). The TAC's allegations generally mirror the
allegations in the Second Amended Complaint ("SAC"). The Plaintiff
asserts that (1) Walgreens' policy facially discriminates against
disabled people; (2) Walgreens' policy disparately impacts disabled
people; and (3) Walgreens fails to provide meaningful
accommodations.
On September 9, 2022, Judge Charles R. Breyer granted Walgreens'
motion to dismiss with prejudice because he finds that the
Plaintiff's reasonable modification claim fails. Judge Breyer also
denied the Plaintiff's motion to strike as moot because it does not
rely on Good Faith Dispensing Policies. Moreover, Judge Breyer
denied the parties' motions for sanctions because neither party has
established any sanctionable conduct. Walgreens' motion to dismiss
for lack of personal jurisdiction was denied as moot.
The appellate case is captioned as Susan Smith v. Walgreens Boots
Alliance, Inc., et al., Case No. 22-16468, in the United States
Court of Appeals for the Ninth Circuit, filed on September 26,
2022.
The briefing schedule in the Appellate Case states that:
-- Appellant Susan Smith Mediation Questionnaire was due on
October 3, 2022;
-- Transcript is due on November 22, 2022;
-- Appellant Susan Smith opening brief is due on January 3,
2023;
-- Appellees WAGDCO, LLC, Walgreens Boots Alliance, Inc. and
Walgreens Company answering brief is due on January 31, 2023; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief. [BN]
Plaintiff-Appellant SUSAN SMITH, individually and on behalf of all
others similarly situated, is represented by:
Thomas Haklar, Attorney, Esq.
LAW OFFICES OF THOMAS D. HAKLAR
320 Encinitas Boulevard, Suite A
Encinitas, CA 92024
Telephone: (858) 481-5454
Defendants-Appellees WALGREENS BOOTS ALLIANCE, INC., et al., are
represented by:
Charles Joseph Stevens, Esq.
GIBSON, DUNN & CRUTCHER, LLP
555 Mission Street, Suite 3000
San Francisco, CA 94105
Telephone: (415) 393-8391
- and -
Joshua D. Dick, Esq.
GIBSON, DUNN & CRUTCHER, LLP
555 Mission Street, Suite 3000
San Francisco, CA 94105
Telephone: (415) 393-8200
- and -
Alex J. Harris, Esq.
BARTLIT BECK, LLP
1801 Wewatta Street, Suite 1200
Denver, CO 80202
- and -
Kelsey John Helland, Esq.
DOJ-USAO
450 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 436-6488
WALGREENS BOOTS: WCERS Suit Settlement Gets Final Court Approval
----------------------------------------------------------------
Walgreens Boots Alliance, Inc. disclosed in its Form 10-K Report
for the fiscal year ended August 31, 2022, filed with the
Securities and Exchange Commission on October 13, 2022, that a
federal court in Illinois issued a final judgment order approving
the settlement of a securities class action captioned Washtenaw
County Employees' Retirement System v. Walgreen Co. et al., No.
1:15-cv-3187 (N.D. Ill.).
On April 10, 2015, a putative shareholder filed a securities class
action in federal court in the Northern District of Illinois
against Walgreen Co. and certain former officers of Walgreen Co.
(Washtenaw County Employees' Retirement System v. Walgreen Co. et
al., No. 1:15-cv-3187 (N.D. Ill.)). The action asserts claims for
violation of the federal securities laws arising out of certain
public statements the Company made regarding its former fiscal 2016
goals.
The Company's motion to dismiss the consolidated class action
complaint filed on August 17, 2015 was granted in part and denied
in part on September 30, 2016.
The court granted plaintiff's motion for class certification on
March 29, 2018, and plaintiff filed a first amended complaint on
December 19, 2018.
A motion to dismiss the first amended complaint was granted in part
and denied in part on September 23, 2019. Fact discovery and expert
discovery have concluded.
On November 2, 2021, the Court denied plaintiffs' motion for
summary judgment and granted in part and denied in part defendants'
cross motion.
On March 2, 2022 the Court granted the Company's motion to
reconsider a portion of that ruling. On June 29, 2022 the Court
granted preliminary approval of a settlement in the amount of $105
million which was fully accrued at August 31, 2022.
The Court issued a final judgment order approving the settlement on
October 13, 2022.
Walgreens Boots Alliance, Inc. operates as a pharmacy-led health
and wellbeing company. It operates through three segments: Retail
Pharmacy USA, Retail Pharmacy International, and Pharmaceutical
Wholesale. Walgreens Boots Alliance, Inc. was founded in 1901 and
is based in Deerfield, Illinois.
WELCH FOODS: Appeals Class Cert. Ruling in Clevenger Suit
---------------------------------------------------------
WELCH FOODS, INC., et al. are taking an appeal from a court order
granting the Plaintiffs' motion for class certification in the
lawsuit entitled Darren Clevenger, et al., individually and on
behalf of others similarly situated, Plaintiffs, v. Welch Foods,
Inc., et al., Defendants, Case No. 8:20-cv-01859-CJC-JDE, in the
U.S. District Court for the Central District of California.
Darren Clevenger, individually and on behalf of others similarly
situated, filed a consumer protection class action on June 29,
2020, in the Superior Court of California, Orange County, followed
by the First Amended Class Action Complaint (FAC) filed on August
25, 2020. The Plaintiff alleged that Welch Foods is engaged in the
practice of "slack-filling" boxes of its Welch's Reduced Sugar
Fruit Snacks and Fruit'n Yogurt Snacks, in violation of the
California Unfair Competition Law (UCL) and California Consumers
Legal Remedies Act (CLRA).
By violating Federal and California slack-fill laws, the Plaintiff
asserts that the Defendant's products are deemed "misbranded" and
cannot legally be sold in interstate commerce. He adds that the
practice of using oversized containers with substantial,
nonfunctional, empty space inside them is called "slack-fill" and
is illegal under California and Federal law.
The Defendants removed the case to federal court on September 24,
2020 and filed a motion to dismiss the Plaintiffs' First Amended
Ccomplaint on October 1, 2020.
On November 18, 2020, the Court granted in part and denied in part
the Defendants' motion to dismiss. The Court granted the motion
based on the Costco Fruit Snacks and the Plaintiff's claims for
injunctive relief but denied it as to Plaintiff's UCL and CLRA
claims for restitution and damages.
On November 30, 2020, the Defendants filed a motion to certify for
interlocutory appeal pursuant to 28 U.S.C. Sec. 1292(b); the
Plaintiff filed an opposition on December 21, 2020; and the Court
denied the motion on December 29, 2020.
The Parties exchanged their Rule 26 Initial Disclosures on January
19, 2021. On January 29, 2021, the Plaintiffs filed their Second
Amended Complaint (SAC), adding David Bloom as a Plaintiff
remedying the Court's prior concerns regarding the 80 count and 90
count Costco boxes.
On February 19, 2021, the Defendants filed a motion to dismiss the
SAC, which was denied on April 1, 2021.
On February 25, 2022, the Plaintiffs filed their Third Amended
Complaint (TAC), adding additional offending products based on the
revelations through discovery that during the early part of the
class period, the Defendants sold the same quantities of certain
Fruit Snacks in larger boxes than currently used.
On April 19, 2022, the Plaintiffs filed a motion to certify class.
The Plaintiffs asked the Court certify two classes under Fed. R.
Civ. Proc. 23(a) and b(3), one class of consumers who purchased the
Defendants' products at retail locations other than Costco (the
"Retail Class") and a separate class who purchased from Costco (the
"Costco Class").
On September 13, 2022, the Court granted the Plaintiffs' motion for
class certification through an Order entered by Judge Cormac J.
Carney.
The appellate case is captioned as Darren Clevenger, et al. v.
Welch Foods, Inc., et al., Case No. 22-80110, in the United States
Court of Appeals for the Ninth Circuit, filed on September 26,
2022. [BN]
Plaintiffs-Respondents DARREN CLEVENGER, et al., individually and
on behalf of all others similarly situated, are represented by:
Lawrence Lanza, Esq.
LANZA & SMITH
3 Park Plaza
Irvine, CA 92614-8540
Telephone: (949) 221-0490
- and -
Robert J. Stein, III, Esq.
DIVINCENZO SCHOENFIELD STEIN
3 Park Plaza, Suite 1650
Irvine, CA 92657
Telephone: (714) 881-7002
Defendants-Petitioners WELCH FOODS, INC., et al., are represented
by:
Daniel Scott Silverman, Esq.
VENABLE, LLP
2049 Century Park, E., Suite 2300
Los Angeles, CA 90067
Telephone: (310) 229-9900
Asbestos Litigation
ASBESTOS UPDATE: U.S. Steel/BP Amoco Loses $5.6MM Mesothelioma Suit
-------------------------------------------------------------------
Camryn Keeble, writing for mesotheliomaguide.com, reports that in
December of 2021, Fred R. and his family were awarded $5.6 million
in a mesothelioma lawsuit against U.S. Steel and BP Amoco. Fred
worked for over 30 years in various U.S. Steel plants in Indiana
and Illinois, where he was unknowingly exposed to asbestos.
The reckless exposure to asbestos Fred experienced eventually led
to his diagnosis of mesothelioma in 2016. He lived with
mesothelioma for 18 months but lost his battle at age 56. Upon his
death, his family filed to sue U.S. Steel and BP Amoco, alleging
both companies were responsible for Fred's mesothelioma diagnosis.
Fred's family claimed U.S. Steel and BP Amoco knew the asbestos in
their steel plants could lead to cancer but neglected to improve
working conditions. Neither company informed employees of the fatal
effects associated with working in an asbestos environment. U.S.
Steel and BP Amoco selfishly took the health and safety of their
employees into their own hands for financial gain.
mesotheliomaguide.com states that reckless business practices, like
those allegedly carried out by U.S. Steel and BP Amoco, has led to
many asbestos diseases and long term health issues in Americans,
especially those who worked in high-risk occupations.
As the government implemented strict asbestos regulations, asbestos
cancer claims began to flood the courts. Throughout the 20th
century, corporations across all industries manufactured and
distributed asbestos-containing products, without explaining the
dangers of the mineral to the workforce. Today, many former
employees and consumers are coming forward to hold the
irresponsible companies accountable for their actions.
At its peak, asbestos was being used in every corner of the market.
The hazards of the mineral were not public yet, which means there
were zero regulations or protection requirements in the workplace.
The absence of regulations and protective equipment has led to
countless innocent people, like Fred, exposed to a mineral known to
cause cancer.
Companies known to have created an asbestos-heavy work environment
are now fighting asbestos litigation. Many victims claim the
corporations knew of the health risks associated with asbestos but
continued to produce it anyway. Many of the corporations failed to
train their employees on asbestos safety precautions and provide
proper protective equipment.
*********
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
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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.
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