/raid1/www/Hosts/bankrupt/CAR_Public/221213.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, December 13, 2022, Vol. 24, No. 242
Headlines
ACCEPTANCE NOW: RAC's Bid for Arbitration in McBurnie Suit Denied
ADVANCE/NEWHOUSE: Bricklayers Files Suit in Del. Chancery Ct.
ALL WAYS: Bid to Dismiss & Strike in Bryant Suit Granted in Part
ALLIANCE COAL: Scheduling Order Entered in Branson
ALLIANZ LIFE: Small Suit Remanded to Los Angeles Superior Court
AMAZON.COM INC: Union Organizer Asks Court to Lead Race Bias Suit
AMAZON.COM SERVICES: Del Rio Suit Seeks Class Certification
AMERICAN FEDERATION: Letter Briefs in Carlisle Suit Granted in Part
AMERICAN HONDA MOTOR: Wolf Files Suit in N.D. Illinois
AMERICAN HONDA: Wong Appeals Suit Dismissal to 9th Circuit
AMERICAN NATIONAL: Delacruz Files ADA Suit in S.D. New York
ANDERSON COUNTY, TX: Bid to Strike Pruette's Declaration Filed
ARMY AND AIR FORCE: Thompson Suit Removed to S.D. Illinois
ARS MOBILITY: Marte Files Suit Over Salesclerks' Unpaid Wages
ARTHUR J. GALLAGHER: Florio Suit Removed to M.D. Florida
ARTHUR J. GALLAGHER: Hernandez Suit Removed to S.D. California
ARTSANA USA: Court Grants Bid to Dismiss Seidl's Amended Complaint
BAAS LLC: Case Management Order Entered in Osborn Class Suit
BANANA REPUBLIC: Davis Sues Over Fair Workweek Law Violation
BAUER HOCKEY: Filing of Class Cert Bid Extended to March 2023
BOBIT BUSINESS: Case Management Order Entered in Emral Suit
BRAIN DEAD: Crosson Files ADA Suit in E.D. New York
BRYANT SECURITY: Tila-Cohen Sues Over Unpaid Compensations
C&S WHOLESALE: Carter Suit Removed to E.D. California
C.R. ENGLAND: Hagest Suit Transferred to D. Utah
CENLAR FSB: Lopez FDCPA Suit Removed to N.D. Illinois
CENTENE MANAGEMENT: Filing of Reply to Class Cert Bid Extended
CENTRAL GARDEN: Graham Files Suit in N.D. California
CHRISTIANBOOK LLC: First Amended Case Management Order Entered
CLAIRBORNE PARISH, LA: Class Action Status in Hicks v. Dowies Nixed
CLOUDERA INC: Klin Appeals Amended Securities Suit Dismissal
CO-DIAGNOSTICS INC: Lead Plaintiff Must File Reply Brief by Dec. 19
COMMUNITY MEDICAL: E.D. California Remands Hinds Suit to State Ct.
CORCEPT THERAPEUTICS: Elliott Compelled to Comply With Subpoena
CROSS-LINES RETIREMENT: Can't Compel Executed Questionnaires in Coe
CROW VOTE: Ward Appeals Final Judgment in RICO Suit to 9th Cir.
DINGDONG (CAYMAN): McCormack Denied as Lead Plaintiff in Fraud Suit
ENERGY TRANSFER: Partly Compelled to Show Docs in Allegheny Suit
EPITEC INC: Misclassifies Recruiters, Stewart Suit Alleges
FLORIDA: Longino Class Suit vs. FCCC Dismissed Without Prejudice
FRIGHT-RAGS INC: Batista Sues Over Blind-Inaccessible Website
GAP INC: Diaz Sues Over False and Misleading Statements
GENERAL ELECTRIC: 3rd Cir. Affirms Summary Judgment in Somers Suit
GRAMMER INC: Carmona Sues Over Failure to Pay Proper Overtime
GRAYSON AIR: Fails to Properly Pay OT Wages, Deakle et al. Claim
INSTAGRAM LLC: Loses Bids to Dismiss Dangaard's Anti-SLAPP Claims
J&M PLATING: Appeals Court Flips Summary Judgment in Mora BIPA Suit
LEHIGH UNIVERSITY: Scheyer Appeals ADA Suit Dismissal to 3rd Cir.
MAC COSMETICS: N.D. California Remands Maciel Suit to State Court
MATCH GROUP: Randle Suit Removed to N.D. Ill.
MEDTRONIC PLC: Robbins Geller Named Lead Counsel in Fund Suit
MIAMI, FL: Klugh Sues Over Parking Tax Surcharge
MICHAEL ISABELLA: Court Grants Delcid's Bid for Equitable Tolling
NEW YORK, NY: EMS Unions File Suit in S.D. New York
NORTHWEST MOTORSPORT: Class Cert Deadlines Extended to Dec. 14
OAKLAND COUNTY, MI: $940K Class Deal in Dover Suit Wins Final Nod
OSWALD HOME: Underpays Construction Employees, Aguilar Claims
PAPA JOHN'S: Bid to Compel Arbitration & Dismiss Bazemore Suit OK'd
PENNSYLVANIA: Court Tosses 14th Amendment Claim in Lopez v. Wetzel
REVOLVE GROUP: Florio Sues Over Unsolicited Telephonic Sales Calls
REX VENTURE: Larson's Bid to Vacate Judgment in Orso Suit Denied
ROCKIN RUDY'S: Rhone Files ADA Suit in S.D. New York
RUNNING WAREHOUSE: Gasnick Appeals Order Compelling Arbitration
RUNNING WAREHOUSE: Patrick Appeals Order Compelling Arbitration
SACRAMENTO BEHAVIORAL: Morris Files Suit in Cal. Super. Ct.
SAMSUNG ELECTRONICS: Chandler Sues Over Failure to Protect PII
SAN FRANCISCO, CA: Wins Summary Judgment v. Pierce, et al.
SCOTT LENNON: Chavez Files Suit in N.D. Illinois
SLEEPY'S LLC: Summary Judgment Bid in Gundell Suit Granted in Part
SOLSTICE MANAGEMENT: More Time to File Class Cert Response Sought
SPORTS WAREHOUSE: Solter Appeals Order Compelling Arbitration
STANFORD: Collier Appeals Ruling in Civil Rights Suit
SUTTER VALLEY: Tinnin Seeks to Certify Class
T.J. MAXX OF CA: Gancinia Suit Removed to E.D. California
TEAM ENTERPRISES: Court Modifies Briefing Schedule in Cipolla
TIVITY HEALTH: Revised Order on Pension Fund Class Cert. Sought
TOYWIZ INC: Rhone Files ADA Suit in S.D. New York
TRUMP CORP: Plaintiffs Must File Class Cert Bid by Feb. 24, 2023
UBER TECHNOLOGIES: Ninth Cir. Affirms Fee Award in McKnight Suit
UMASS MEMORIAL: Doe Wiretapping Suit Removed to D. Mass.
UNITED STATES: Tanner-Brown Files Appeal to D.C. Cir.
URS MIDWEST: Bid to Strike Lewin Declaration Denied in Rodriguez
UTILITIES EMPLOYEES: Gordner Files Suit in Pa. Ct. of Common Pleas
VBIT TECHNOLOGIES: Eichler Files Suit in D. Delaware
VENICE HMA: Bid to Stay Discovery in White Class Action Junked
VERTICAL STAFFING: Balbin Sues Over Breach of Contract
VERU INC: Ewing Sues Over False and Misleading Statements
VICTORY ENTERTAINMENT: Ruling Entered on Ehrenberg's Bid in Limine
VILLA MANNINO: Morales Sues Over Unpaid Overtime Compensation
WASTE MGMT: Robbins Geller Named Lead Counsel in Pension Plan Suit
WESTROCK SERVICES: Porchia Suit Removed to E.D. California
WILDERNESS SPORTS: Arcilla Appeals Order Compelling Arbitration
WILDERNESS SPORTS: Hargrove Appeals Order Compelling Arbitration
WILDERNESS SPORTS: Pfeffer Appeals Order Compelling Arbitration
ZILLOW GROUP: Adams Suit Transferred to W.D. Washington
ZUMIEZ INC: Settlement Paid in Herrera Class Suit
*********
ACCEPTANCE NOW: RAC's Bid for Arbitration in McBurnie Suit Denied
-----------------------------------------------------------------
In the case, SHANNON McBURNIE, et al., Plaintiffs v. ACCEPTANCE
NOW, LLC, Defendant, Case No. 3:21-cv-01429-JD (N.D. Cal.), Judge
James Donato of the U.S. District Court for the Northern District
of California denies RAC Acceptance East, LLC's motion to compel
arbitration.
Shannon McBurnie and April Spruell, suing on behalf of themselves
and a putative class, allege that RAC charged excessive fees in
connection with its rent-to-own business, in violation of
California's Karnette Rental-Purchase Act, Cal. Civ. Code Section
1812.620 et seq., Consumer Legal Remedies Act, Cal. Civ. Code
Section 1750 et seq. ("CLRA"), and unfair competition law, Cal.
Bus. & Prof. Code Section 17200 et seq. ("UCL"). RAC asks for an
order compelling McBurnie and Spruell to individual arbitration
pursuant to the parties' arbitration agreements and the Federal
Arbitration Act ("FAA").
The Plaintiffs bought furniture from a retail store, which they
"financed" by agreeing to pay RAC over time. They could take the
furniture home that day, but would own it only after making an
agreed-upon number of payments to RAC. As part of this arrangement,
the named Plaintiffs paid RAC a "processing fee" of $45 and agreed
to pay RAC an "expedited payment fee" of $1.99 for each payment
made by telephone.
The Plaintiffs' contracts with RAC contained an arbitration
agreement, which is the same for each plaintiff and states that "in
the event of any dispute or claim between us, either you or RAC may
elect to have that dispute or claim resolved by binding
arbitration." The agreement provides that the Plaintiffs and RAC
will conduct arbitration only on an individual basis, and they
cannot seek, nor may the Arbitrator award, relief that would affect
other RAC account holders.
The Plaintiffs originally sued in the Alameda County Superior Court
in December 2020. They alleged that RAC's processing and expedited
payment fees were unreasonable and violated the Karnette Act and
other California laws. RAC answered the complaint in state court,
and identified the arbitration agreement as an affirmative defense.
Even so, RAC did not seek to compel arbitration. In February 2021,
RAC filed a notice of removal of the case to this Court under the
Class Action Fairness Act, 28 U.S.C. Section 1332(d). The
Plaintiffs did not contest removal.
After removal, the parties participated in a case management
conference in June 2021. They entered a stipulated protective
order, which the Court approved,. On several occasions the parties
stipulated to extend case deadlines, each time representing that
they were actively working to move the litigation forward. None of
these requests raised the prospect of arbitration.
The parties stayed busy with litigation. They actively engaged in
discovery and participated in settlement discussions. On the
discovery front, the Plaintiffs represent, without objection by
RAC, that RAC deposed both named Plaintiffs, made six sets of
requests for the production of documents and three sets of requests
for admissions, and propounded five sets of interrogatories. The
parties brought several discovery disputes to the Court, and were
twice directed to meet and confer for four hours to resolve their
issues. On the settlement side, the parties participated in a
number of pre-settlement conferences with a magistrate judge in
this District. They have also engaged in private mediation.
In July 2022, over 18 months after the Plaintiffs filed suit in
state court, RAC filed a motion to stay discovery in anticipation
of seeking to compel arbitration, which the Court denied without
prejudice to renewal if a motion to compel was filed. RAC did not
file a motion to compel arbitration until August 2022. Its renewed
motion to stay discovery was denied after the arbitration briefing
was completed.
The Plaintiffs' main objection is that RAC has waived a right to
demand arbitration by actively litigating this case in court for
over eighteen months before filing a motion to compel. Although
RAC's arbitration agreement has language indicating delegation of
some arbitrability disputes to the arbitrator, it did not expressly
delegate the question of waiver, and Judge Donato decides the issue
based on federal law.
Judge Donato holds that RAC is in no position to say that it was
unaware of its own arbitration agreements with the named
Plaintiffs, which pre-dated the filing of the original complaint in
state court. Consequently, the only question for waiver is whether
RAC acted inconsistently with a right to arbitrate. Judge Donato
finds that the record amply demonstrates that RAC has waived
arbitration by actively litigating the case in the Court for more
than 18 months.
RAC's main defense is that it believed it could not compel
arbitration until one of two things happened: (i) the publication
of the Supreme Court's decision in Viking River Cruises, Inc. v.
Moriana, 142 S.Ct. 1906 (2022); and (ii) the execution of a
stipulated judgment between RAC's parent company and the California
Attorney General in August 2022, which prohibits RAC from charging
a processing fee that violates the Karnette Act.
However, neither point is well taken, Judge Donato points out. He
finds that RAC never brought Viking River to the Court's attention
as a possible basis for compelling arbitration until it filed the
motion to stay discovery in July 2022. Nor did it request a stay of
the case while Viking River was pending in the Supreme Court, as
similarly situated parties did in other cases.
The same is true for the Attorney General settlement. Documents
submitted by RAC say that the settlement was the end result of a
"multi-year investigation" into its business practices. But RAC
again never mentioned these proceedings until the arbitration
demand in August 2022, or asked for stay or other accommodation for
them.
There are additional reasons why RAC's argument against waiver is
not tenable. The suggestion that Viking River effected a sea change
in the enforceability of the arbitration agreement is questionable
at best. RAC's suggestion that the Plaintiffs' request for a public
injunction is moot is also misdirected.
Based on the foregoing, Judge Donato denies RAC's motion to compel
arbitration.
A full-text copy of the Court's Nov. 30, 2022 Order is available at
https://tinyurl.com/ypjtbs44 from Leagle.com.
ADVANCE/NEWHOUSE: Bricklayers Files Suit in Del. Chancery Ct.
-------------------------------------------------------------
A class action lawsuit has been filed against Advance/Newhouse
Partnership, et al. The case is styled as Bricklayers Pension Fund
of Western Pennsylvania, City Pension Fund for Firefighters &
Police Officers in the City of Pembroke Pines, Key West Police and
Firefighters' Pension Fund, and Steve Silverman, on behalf of
themselves and all those similarly situated v. Advance/Newhouse
Partnership, Advance/Newhouse Programming Partnership, Robert
Miron, Steven Miron, and Susan Swain, Defendants; Davant
Scarborough, Monroe County Employees' Retirement System, Plumbers
Local Union No. 519 Pension Trust Fund, Interested Parties; Sheriff
New Castle County, Sheriff; Case No. 2022-1114-NAC (Del. Chancery
Ct., Dec. 2, 2022).
The case type is stated as "Breach of Fiduciary Duties."
Advance -- https://www.advance.com/ -- is a private, family-held
business that owns and invests in companies across media,
entertainment, technology, communications, education and other
promising growth sectors.[BN]
The Plaintiffs are represented by:
Gregory V. Varallo, Esq.
Daniel E. Meyer, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
500 Delaware Avenue, Suite 901
Wilmington, DE 19801
Phone: (302) 364-3601
- and -
Ned Weinberger, Esq.
Mark Richardson, Esq.
Derrick Farrell, Esq.
LABATON SUCHAROW LLP
222 Delaware Avenue, Suite 1510
Wilmington, DE 19801
Phone: (302) 573-2540
The Interested Parties are represented by:
Craig J Springer, Esq.
ANDREWS & SPRINGER LLC
4001 Kennett Pike, Suite 250
Wilmington, DE 19807
Phone: (302) 504-4957
Fax: (302) 397-2681
Email: cspringer@andrewsspringer.com
ALL WAYS: Bid to Dismiss & Strike in Bryant Suit Granted in Part
----------------------------------------------------------------
In the case, HERBERT BRYANT III, individually, and on behalf of all
others similarly situated, Plaintiff v. ALL WAYS AUTO TRANSPORT,
LLC, et al., Defendants, Case No. 1:22-cv-00906 (N.D. Ill.), Judge
Virginia M. Kendall of the U.S. District Court for the Northern
District of Illinois, Eastern Division, grants in part and denies
in part the Defendant's motion to dismiss and strike various
allegations in the Complaint on June 12, 2022.
Bryant filed the lawsuit on Feb. 18, 2022, against All Ways Auto
Transport ("AWA") and Defendant Does 1 through 100. Bryant, a
former truck driver, contracted with the Defendants to deliver
cargo on their behalf with trucks leased in his name. He is seeking
preliminary and permanent injunctive relief, declaratory relief,
damages, and attorneys' fees based on violations of the
Truth-in-Leasing-Act ("TILA"), 49 U.S.C. Section 14704, and
Truth-in-Leasing regulations ("TILR"), 49 C.F.R. Section 376.12,
breach of contract, and breach of covenant of good faith and fair
dealing. The leasing agreements Bryant entered into with AWA
allegedly did not comply with relevant federal regulations, and AWA
allegedly withheld compensation from Bryant without justification.
AWA is a trucking company, organized and doing business in the
State of Illinois, which contracts with individual truckers to
deliver cargo. Bryant is a former truck driver for AWA. Bryant
entered into a non-negotiable "Equipment Lease Agreement" with AWA
on Sept. 7, 2017. The First Agreement involved a 2013 Volvo truck
leased to Bryant by Bush Truck Leasing, Inc. ("BTL"), believed to
be an agent of AWA, to be used by Bryant in his work for AWA.
Bryant had the 2013 Volvo truck repaired at numerous repair shops
that billed AWA directly, which AWA then deducted from Bryant's
account. On Oct. 1, 2018, Bryant entered a second leasing agreement
with AWA for a 2015 International Conventional Sleeper vehicle. The
Second Agreement is identical to the First Agreement in form but
applies to the new vehicle rather than the 2013 Volvo truck.
Under both the First Agreement and the Second Agreement, AWA
deducted expenses from Bryant's pay, including unspecified charges
not included in the Agreements. AWA regularly withheld a "WEEKLY
DEDUCTION" totaling approximately $388.05 from Bryant's paycheck in
addition to other deductions. It provided no explanation for the
purpose of the "WEEKLY DEDUCTION." AWA also deducted the cost of
repairs for the 2013 Volvo truck from Bryant's pay but did not
provide him with itemized invoices for the repairs despite his
requests. Under the terms of the Agreements, AWA maintained funds
in an escrow account to pay for Bryant's obligations. It did not
provide Bryant with periodic accountings of escrow funds, nor did
AWA return the escrow balance due to Bryant at the termination of
his employment.
The Agreements include six clauses particularly relevant to
Bryant's claims. First, in Section V, both Agreements specify that
"all Payments will be made minus applicable deductions for Escrow,
Cargo & Liability Insurance, Advances, Fuel Card Payments, Trailer
Rental repairs and any agreed upon damage or other payment."
In Section VI, both Agreements state "the CARRIER will provide the
INDEPENDENT CONTRACTOR with an accounting of any transaction
involving the escrow account, or any deductions to the escrow
account in a separate ledger sheet, and upon written request of the
INDEPENDENT CONTRACTOR." (Id.).
Section VII outlines that "CARRIER will furnish INDEPENDENT
CONTRACTOR with a written explanation and itemization of all such
deductions." It also states, "INDEPENDENT CONTRACTOR is not
required to purchase or rent any products, equipment, or services
from CARRIER as a condition of entering into this Agreement."
Bryant raises numerous claims related to monetary withholdings by
AWA and the sufficiency of the Agreements. First, he alleges
violations of the Truth in Leasing Act, 49 U.S.C. Section 14704,
("TILA"), and related regulations, 49 C.F.R. Section 376.12.
Second, he alleges breach of contract. Third, Bryant alleges breach
of covenant of good faith and fair dealing.
Bryant intends to seek class certification for his contract claims
("Class") and his TILA/TILR claims ("TILA Subclass"). He alleges
that both the "WEEKLY DEDUCTION" and the failure to return escrow
funds were financial losses common to all proposed class members.
On June 12, 2022, the Defendant moved to dismiss the Complaint in
its entirety, and to strike certain portions of Bryant's
Complaint.
Bryant alleges violations of TILA, 49 U.S.C. Section 14704, and its
accompanying regulations ("TILR"), 49 C.F.R. Section 376.12, as the
first cause of action. He alleges AWA violated 49 C.F.R. Section
376.12(g), (h), (i), and (k), as well as the general requirement
under 49 C.F.R. Section 376.12 that the required lease provisions
will be adhered to and performed by the authorized carrier.
Judge Kendall opines that (i) Bryant's allegation that AWA
instructed him to lease a vehicle through its agent as a condition
of the work relationship is sufficient to plausibly claim AWA
violated Section 376.12(i), or at least violated the general
requirement that required lease provisions will be adhered to and
performed by the authorized carrier; (ii) Bryant's allegations of
non-provision of periodic accounting, failure to pay interest on
the escrow account, and failure to return funds in escrow are
sufficient to allege that AWA violated Section 376.12(k) or at a
minimum, the general requirement that required lease provisions
will be adhered to and performed by the authorized carrier; and
(iii) Bryant sufficiently alleges the violations caused harm to him
by unlawfully charging him for items not specified in the
Agreements and unlawfully converting his escrow funds.
In sum, Judge Kendal holds that Bryant sufficiently pled a claim
under 49 C.F.R. Section 376.12. Because Bryant alleged sufficient
facts to plausibly claim violations and damages in the form of
unreturned funds, he states a claim for violation of TILA and TILR.
AWA's motion to dismiss Count I for failure to state a claim is
denied.
AWA argues restitution and disgorgement are not available remedies
under TILA and moves to strike Ad Damnum paragraphs B and D.
The Ninth and Eleventh Circuits persuade Judge Kendall that the
statute of the text prohibits seeking the equitable remedies of
disgorgement and restitution under TILA. She says the statute
provides for injunctive relief without inclusion of any other
equitable relief. The clearest reading of the statute is that
Congress did not intend to permit other equitable remedies under
TILA. So, AWA's motion to strike Ad Damnum paragraphs B and D is
granted.
Next, to sufficiently plead a breach of contract claim under
Illinois law, Bryant must allege four elements: "(1) the existence
of a valid and enforceable contract; (2) performance by the
plaintiff; (3) breach of the contract by the defendant; and (4)
resultant injury to the plaintiff."
Judge Kendall opines that Bryant's Complaint satisfies these
elements. First, he alleges a valid and enforceable contract
between the parties, as memorialized in the Agreements. Second, he
alleges he "performed all, or substantially all, of the obligations
imposed" by the Agreements. Third, he alleges AWA "breached the
Agreements by overcharging for various fees and expenses and failed
to return escrow funds." Finally, he alleges he suffered damages in
the form of underpayment and withheld escrow funds. So, the
Defendant's motion to dismiss Count II for failure to state a claim
is denied.
Bryant then alleges breach of the implied covenant of good faith
and fair dealing. However, Judge Kendall says Bryant may not allege
breach of the implied covenant of good faith and fair dealing as a
separate count in his Complaint. Count III is therefore dismissed,
and Bryant is granted leave to reallege this claim in Count II.
AWA argues Bryant's class action claims must fail because his
individual claims cannot be sustained. Judge Kendall says class
action claims cannot be filed by class representatives who have no
individual claims, because they lack standing and have no "personal
stake in the outcome." Since Bryant's individual claims survive,
she denies AWA's motion to dismiss his class action allegations.
In a few short paragraphs, AWA moves to dismiss or strike Defendant
Does 1-100. It claims since Defendant Does 1-100 are not identified
in the Agreements, they should be stricken. The Plaintiff indicated
discovery is needed, and additional defendants may be added as new
evidence becomes available, as is entirely appropriate at the
pleading stage. AWA then claims under Rule 19, BTL is a necessary
party that must be joined in order to proceed. AWA advances no
argument for why the Court cannot "accord complete relief" among
the existing parties. Judge Kendall denies AWA's motion to dismiss
or strike the Doe Defendants.
Finally, AWA moves to strike paragraphs one and two as well as
footnotes one through nine of the Complaint. It argues paragraphs
one and two, describing conduct by the trucking industry with cites
to newspapers, are immaterial to its actions. It also claims
footnotes one through three and five through nine are immaterial
and "anything but short and plain," and footnote four is
redundant.
Judge Kendall finds that the first two paragraphs of the Complaint
are not so unrelated to the Plaintiff's claim as to be void of
merit and unworthy of any consideration nor are they unnecessarily
prejudicial, especially at the pleading stage. Their admissibility
at trial need not be determined at the pleadings stage. Footnote
four, which AWA alleges is redundant, is one sentence long. AWA's
motion to strike paragraphs one and two and footnotes one through
nine is therefore denied.
For the reasons she set forth, Judge Kendall grants in part and
denies in part the Defendant's Motion to Dismiss. Count III is
dismissed without prejudice. Ad Damnum paragraphs B and D are
stricken. The Defendant's motion to strike paragraphs one and two
as well as footnotes one through nine is denied. The Defendant's
motion to dismiss Defendant Does 1-100 is denied. The Defendant's
motion to dismiss Counts I and II is denied.
A full-text copy of the Court's Nov. 30, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/5n7spnkj from
Leagle.com.
ALLIANCE COAL: Scheduling Order Entered in Branson
--------------------------------------------------
In the class action lawsuit captioned as RANDY BRANSON, et al., on
behalf of themselves and all others similarly situated, v. ALLIANCE
COAL, LLC, et al.,Case No. 4:19-cv-00155-JHM-HBB (W.D. Ky.), the
Hon. Judge Brent Brennenstuhl nentered a stipulated scheduling
order as follows:
-- Fact Discovery August 24, 2023
-- Expert Discovery November 21, 2023
-- Deadline for Plaintiffs' expert August 31, 2023
report
-- Deadline for Defendants' expert October 31, 2023
report
-- Deadline for Plaintiffs' August 31, 2023
motion for class
certification:
-- Deadline for Defendants' August 31, 2023
motion to decertify the
conditionally certified
collective:
Alliance Coal produces and markets steam coal products.
A copy of the Court's order dated Dec. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3HfWhe7 at no extra charge.[CC]
The Plaintiffs are represented by:
Camille Fundora Rodriguez, Esq.
Lane L. Vines, Esq.
Reginald L. Streater, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-3000
E-mail: crodriguez@bm.net
lvines@bm.net
rstreater@bm.net
- and -
Eric Lechtzin, Esq.
Liberato Verderame, Esq.
Shoshana M. Savett, Esq.
EDELSON LECHTZIN LLP
411 S. State St., Suite N-300
Newtown, PA 18940
Telephone: (215) 867-2399
E-mail: elechtzin@edelson-law.com
lverderame@edelson-law.com
ssavett@edelson-law.com
- and -
Mark N. Foster, Esq.
LAW OFFICE OF MARK N. FOSTER, PLLC
P.O. Box 869
Madisonville, KY 42431
Telephone: (270) 213-1303
E-mail: Mfoster@MarkNFoster.com
- and -
Sarah R. Schalman-Bergen, Esq.
Thomas Fowler, Esq.
Olena Savytska, Esq.
Krysten Connon, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston Street, Suite 2000
Boston, MA 02116
Telephone: (617) 994-5800
E-mail: ssb@llrlaw.com
tfowler@llrlaw.com
osavytska@llrlaw.com
kconnon@llrlaw.com
- and -
John R. Kleinschmidt, III, Esq.
THE LAW OFFICES OF JOHN R. KLEINSCHMIDT III, PLLC
P.O. Box 1746
Lexington, KY 40588
Telephone: (859) 866-3097
E-mail:john@employmentlawky.com
The Defendant is represented by:
Richard G. Griffith, Esq.
Elizabeth S. Muyskens, Esq.
Kif H. Skidmore, Esq.
STOLL KEENON OGDEN PLLC
300 West Vine Street - Suite 2100
Lexington, KY 40507-1801
Telephone: (859) 231-3626
E-mail: richard.griffith@skofirm.com
elizabeth.muyskens@skofirm.com
kif.skidmore@skofirm.com
ALLIANZ LIFE: Small Suit Remanded to Los Angeles Superior Court
---------------------------------------------------------------
Judge Terry J. Hatter, Jr., of the U.S. District Court for the
Central District of California, Western Division, remands the case,
LAWANDA SMALL, Plaintiff v. ALLIANZ LIFE INSURANCE COMPANY OF NORTH
AMERICA, Defendant, Case No. CV 22-04640 TJH (KESx) (C.D. Cal.), to
the Superior Court of the State of California for the County of Los
Angeles.
On Feb. 27, 2020, Small filed a putative class action -- Small v.
Allianz Life Ins. Co. of N. Am. (Small I), No. CV 20-01944 THJ
(KES). The Small I Complaint centered on the allegation that, in
2019, Allianz wrongfully denied her life insurance claim, tendered
under her late husband's life insurance policy. Small alleged that
Allianz had, inter alia, failed to provide the mandatory 30-day
notice of a missed premium payment and failed to provide the
mandatory 60-day grace period before terminating the Policy. The
Small I Complaint alleged four claims, including a claim for
injunctive relief and restitution pursuant to California's Unfair
Competition Law ["UCL"], Cal. Bus. & Prof. Code Sections 17200, et
seq.
On March 29, 2022, the Court struck the Small I Complaint's prayer
for injunctive relief because she lacked standing to seek
prospective injunctive relief. Additionally, it dismissed Small's
UCL claim, to the extent that it arose under the UCL's unfair and
fraudulent prongs, for failure to meet the heightened pleading
requirements of Fed. R. Civ. P. 9(b). Small's claim under the UCL's
unlawful prong remains pending before the Court.
On May 31, 2022, Small filed this case in the Los Angeles County
Superior Court as a second putative class action against Allianz
["Small II"]. The Small II Complaint alleged a single claim for
injunctive relief pursuant to the UCL's unlawful conduct prong and
contained nearly identical allegations to those in the Small I
Complaint. On July 7, 2022, Allianz removed the case.
Small, now, moves to remand Small II, pursuant to 28 U.S.C. Section
1447(c), and Allianz moves to dismiss Small II, pursuant to Fed. R.
Civ. P. 12(b)(6). Small argued that the Court lacks subject matter
jurisdiction over the case because she still lacks standing to seek
prospective injunctive relief. In Small I, the Court held that
Small lacked standing to seek prospective injunctive relief because
she failed to allege that she was realistically threatened by a
repetition of Allianz's alleged violations.
In Small II, Small expanded the scope of her requested injunctive
relief by seeking both prospective and retrospective injunctive
relief, though it is based on the same claim and facts alleged in
Small I. As she requested in Small I, Small is seeking an
injunction for "stopping and remedying the ongoing violations of
The Statutes." She is, also, seeking, here, two new forms of
injunctive relief. Small is seeking an injunction "to reverse or
invalidate Allianz's ongoing lapsing or repudiation of life
insurance policies that are to be deemed in-force as a matter of
law" and "to command the payment of all owed policy benefits."
Judge Hatter must evaluate whether Small has standing to seek
injunctive relief for each form of injunctive relief. As before, he
holds that Small lacks standing for an injunction to "stop and
remedy the ongoing violations of the Statutes" because that relief
is prospective. However, her request to invalidate Allianz's
alleged "ongoing lapsing or repudiation of life insurance policies"
seeks both prospective and retroactive injunctive relief, while her
request for injunctive relief for compensation for wrongly denied
claims is purely retroactive. Small has standing to seek
retroactive relief because she has pled that she suffered an injury
in fact, caused by Allianz, that is redressable by the Court.
The question, then, is whether the Court should remand Small's
entire UCL claim, or only that portion of the claim that seeks
prospective injunctive relief. The Ninth Circuit has declined to
resolve whether claims should be partially remanded when standing
is lacking for only some forms of relief.
If the Court remands only a portion of Small's UCL claim, the
remaining portion will be dismissed because Small I is still
pending. Where remand and dismissal are both available options,
judicial economy, convenience, fairness, and comity favor remand.
Accordingly, Judge Hatter remands the case and denies as moot the
motion to dismiss.
A full-text copy of the Court's Nov. 30, 2022 Order is available at
https://tinyurl.com/y8a6t7sz from Leagle.com.
AMAZON.COM INC: Union Organizer Asks Court to Lead Race Bias Suit
-----------------------------------------------------------------
Caroline Colvin at hrdive.com reports that Amazon Labor Union lead
Christian Smalls petitioned the 2nd U.S. Circuit Court of Appeals
for the chance to lead a class-action racial discrimination lawsuit
against Amazon.
The crux of Smalls' suit is that a lack of enforced COVID-19 safety
precautions in the warehouse where he formerly worked mainly
affected Black and brown Amazon workers. In contrast, Smalls'
complaint pointed out, the company intentionally addressed the
health and safety of managers, who were allegedly
disproportionately White, "with greater diligence."
Smalls' appeal to the 2nd Circuit follows a district court's
previous granting of Amazon's motion to dismiss the case. The lower
court disputed Smalls' argument that he is eligible to sue on
behalf of said front-line workers, given that he is no longer
employed by Amazon and when Smalls was, he was a manager. The
district court also argued Smalls failed to demonstrate racial
discrimination.
On appeal, Smalls is also looking for his claim that he was
unlawfully terminated in retaliation for participating in a
COVID-19 safety-related protest outside of his place of work to be
reviewed. The district court found that he failed to state a claim
for retaliatory treatment.
Smalls made headlines in the spring of 2022 for successfully
organizing the first Amazon warehouse union, and for doing so
without relying on existing major labor unions. Smalls' termination
following a safety walkout was the catalyst for the forming of the
Amazon Labor Union; union activities, however, are not the focus of
his lawsuits.
Sociologists, epidemiologists and labor experts have traced the
connection between essential or front-line work, class and race
intersections, and Black, Indigenous, Pacific Islander and Latinx
workers' disproportionate exposure to COVID-19.
Despite the research, proving that harm took place may be
challenging. A greater risk or fear of harm caused by COVID-19
isn't enough to warrant retrospective relief, Amazon said.
Additionally, the harm did not materialize, so it did not qualify
as a concrete injury, the company said. Smalls also acknowledged
that both non-White and White employees were among the front-line
workers and management at said warehouse. [GN]
AMAZON.COM SERVICES: Del Rio Suit Seeks Class Certification
------------------------------------------------------------
In the class action lawsuit captioned as JAVIER DEL RIO, COLIN
MEUNIER and AARON DELAROCHE, on behalf of themselves and other
similarly situated Employees v. AMAZON.COM SERVICES, LLC,
AMAZON.COM.DEDC, LLC, and AMAZON.COM, INC., Case No.
3:21-cv-01152-KAD (D. Conn.), the Plaintiffs ask the Court to enter
an order certifying a putative class of workers:
"All works employed at Amazon's Connecticut BLD2 and bld3
from April 16, 2018 through March 14, 2020."
The Defendants allegedly violated the Connecticut Minimum Wage Act
(CWA) by requiring all of its hourly workers to remain on the
premises after punching out for several minutes each shift but did
not pay them for this time.
A copy of the Plaintiffs' motion to certify class dated Dec. 6,
2022 is available from PacerMonitor.com at https://bit.ly/3VXkz0r
at no extra charge.[CC]
The Plaintiffs are represented by:
Richard E. Hayber, Esq.
HAYBER, MCKENNA & DINSMORE, LLC
750 Main Street, Suite 904
Hatford, CT 06103
Telephone: (860) 522-8888
Facsimile: (860) 218-9555
E-mail: RHayber@hayberlawfirm.com
AMERICAN FEDERATION: Letter Briefs in Carlisle Suit Granted in Part
-------------------------------------------------------------------
In the case, ROBERT CARLISLE, individually and as a representative
of a class of similarly situated persons, on behalf of the NEW YORK
STATE TEAMSTERS CONFERENCE PENSION AND RETIREMENT FUND, Plaintiff
v. THE BOARD OF TRUSTEES OF THE AMERICAN FEDERATION OF THE NEW YORK
STATE TEAMSTERS CONFERENCE PENSION AND RETIREMENT FUND; JOHN
BULGARO; BRIAN K. HAMMOND; PAUL A. MARKWITZ; GEORGE F. HARRIGAN;
MARK D. MAY; MICHAEL S. SCALZO, SR.; ROBERT SCHAEFFER; MARK
GLADFELTER; SAMUEL D. PILGER; DANIEL W. SCHMIDT; TOM J. VENTURA;
MEKETA INVESTMENT GROUP, INC.; and HORIZON ACTUARIAL SERVICES, LLC,
Defendants, Case No. 8:21-cv-00455 (BKS/DJS) (N.D.N.Y.), Judge
Brenda K. Sannes of the U.S. District Court for the Northern
District of New York grants in part and denies in part both the
Fund Defendants' letter brief and the Plaintiff's letter brief.
Carlisle brings the proposed class action individually and as a
representative of a class of similarly situated persons, on behalf
of the New York State Teamsters Conference Pension and Retirement
Fund, under the Employment Retirement Income Security Act of 1974
("ERISA"), 29 U.S.C. Section 1001 et seq., alleging (1) breach of
fiduciary duty in violation of ERISA Sections 404(a)(1)(A)-(D), 29
U.S.C. Sections 1104(a)(1)(A)-(D); and (2) breach of the fiduciary
duty of prudence, in violation of ERISA Sections 405(a)(1) and (2),
29 U.S.C. Sections 1105(a)(1) and (2).
In a letter dated Nov. 23, 2022, the Fund Defendants notified the
Court that the New York State Teamsters Conference Pension and
Retirement Fund's ("the Fund") application for Special Financial
Assistance ("SFA") was approved by the Pension Benefit Guaranty
Corporation ("PBGC") pursuant to the American Rescue Plan Act on
Nov. 18, 2022. They state in their letter that the PBGC has
informed them that the Fund will receive a payment of more than
$900 million on Dec. 8, 2022, enabling the Fund to restore benefits
-- prospectively and retroactively -- for participants, including
the Plaintiff, for whom the Fund previously reduced benefits under
the Multiemployer Plan Reform Act ('MPRA')."
The Fund Defendants argue that once the retroactive benefit
restoration is complete, the Plaintiff will no longer have a
concrete stake in this action, rendering the action moot, and
creating an impediment to any Article III standing. They request a
briefing schedule to submit a supplemental motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(1) and address
the newly arisen, additional reasons why Plaintiff lacks Article
III standing. They anticipate also discussing the Plaintiff's
arguments regarding the collateral source rule and interest on
reduced benefits in their supplemental motion.
In a letter dated Nov. 28, 2023, the Plaintiff responded that he
would not oppose supplemental briefing to the extent the Court
believes it would be helpful, but proposed limiting the issues as
follows:
Briefing should be limited to two issues: (1) the Plaintiff's
argument that he and all other Plan participants have Article III
standing regardless of the government's forthcoming provision of
Special Financial Assistance based on the collateral source rule,
and (2) the Plaintiff's argument that, in any event, the Plaintiff
and all other Plan participants have Article III standing because
they will at most receive payments equal to the amount of the
reduction in their vested pension benefit payments from 2017
through March 2023 without any payment for interest or lost
investment returns.
In addition, the Plaintiff submits that, in order to enable a
precise calculation of the interest damages suffered by him and the
other Plan participants, the Trustee Defendants should produce a
spreadsheet that sets forth, on a monthly basis, the aggregate
amount of vested pension benefits that were not paid from the date
in 2017 when the Trustee Defendants first cut Plan participants'
vested pension benefits through March 1, 2023. Finally, in his
letter, the Plaintiff renews his request for limited discovery to
include the production by the Defendants of applicable insurance
policies and any documents that the Defendant produced to the
United States Department of Labor pursuant to an investigation
initiated by the DOL regarding issues and claims common to those
asserted in the Plaintiff's Complaint.
While any supplemental motion to dismiss should address the issues
the Plaintiff outlined, Judge Sannes declines to limit the briefing
to those issues. She also declines to order the discovery the
Plaintiff seeks at this juncture. However, a spreadsheet or
detailed information regarding the payment to the Plan and the
amount of benefits repaid with reference to the applicable time
period may be helpful to the Court in considering the additional
briefing.
Therefore, the Defendants' request for supplemental motion practice
is granted and the parties are directed to address the issues
outlined in their letter briefs. In addition, while the issue of
Article III standing remains before the Court, and the Court will
address it in due course, because the standing doctrine evaluates a
litigant's personal stake at the onset of a case, and the PBGC's
Nov. 18, 2022, approval of the Fund's application for SFA arose
well after the onset of the case, the parties must also address
whether the $900 million payment implicates mootness, not standing,
and frame their analysis accordingly.
For these reasons, Judge Sannes grants in part and denies in part
both the Fund Defendants' letter brief and the Plaintiff's letter
brief.
The parties will file briefs in accordance with this Briefing Order
as follows:
a. The Fund Defendants will file a supplemental motion to
dismiss by Jan. 27, 2023.
b. The Plaintiff will file a response by Feb. 27, 2023.
c. The Fund Defendants will file a reply by March 20, 2023.
A full-text copy of the Court's Nov. 30, 2022 Briefing Order is
available at https://tinyurl.com/2zr4vj3c from Leagle.com.
Steven A. Schwartz -- SteveSchwartz@chimicles.com -- Chimicles
Schwartz Kriner & Donaldson-Smith LLP, Haverford, Pennsylvania,
Robert J. Kriner, Jr. -- RobertKriner@chimicles.com -- Chimicles
Schwartz Kriner & Donaldson-Smith LLP, Wilmington, Delaware, Leslie
A. Blau, Blau & Malmfeldt, Chicago, Illinois, for the Plaintiff.
Brian T. Ortelere -- brian.ortelere@morganlewis.com -- Sara E.
DeStefano, Morgan, Lewis & Bockius LLP, New York, New York, for the
Defendants: The Board of Trustees of the American Federation of the
New York State Teamsters Conference Pension and Retirement Fund;
John Bulgaro; Brian K. Hammond; Paul A. Markwitz; George F.
Harrigan; Mark D. May; Michael S. Scalzo, Sr.; Robert Schaeffer;
Mark Gladfelter; Samuel D. Pilger; Daniel W. Schmidt; and Tom J.
Ventura.
Diana K. Lloyd -- dlloyd@choate.com -- Samuel N. Rudman, Preston F.
Bruno, Choate, Hall & Stewart, Two International Place, Boston,
Massachusetts, Eric G. Serron -- eserron@steptoe.com -- Steptoe &
Johnson LLP, Washington, D.C., for Defendant Meketa Investment
Group, Inc.
Edward J. Meehan -- emeehan@groom.com -- Stephen M. Saxon, Samuel
I. Levin, Kalena R. Kettering, Groom Law Group, Chartered
Washington, D.C., for Defendant Horizon Actuarial Services, LLC.
AMERICAN HONDA MOTOR: Wolf Files Suit in N.D. Illinois
------------------------------------------------------
A class action lawsuit has been filed against American Honda Motor
Co., Inc. The case is styled as Eliyahu Wolf, Miranda Phelps,
individually and on behalf of all others similarly situated v.
American Honda Motor Co., Inc., Case No. 1:22-cv-05855 (N.D. Ill.,
Oct. 24, 2022).
The nature of suit is stated as Motor Vehicle Prod. Liability for
the Magnuson-Moss Warranty Act.
American Honda Motor Co., Inc. -- http://www.honda.com/-- develops
and manufactures automobiles.[BN]
The Plaintiffs are represented by:
Brooke Achua, Esq.
Jonathan David Lindenfeld, Esq.
FEGAN SCOTT LLC
140 Broadway, 46th Floor
New York, NY 10005
Phone: (646) 502-7910
Email: brooke@feganscott.com
jonathan@feganscott.com
- and -
Elizabeth A. Fegan, Esq.
FEGAN SCOTT LLC
150 South Wacker Drive, 4th Floor
Chicago, IL 60606
Phone: (312) 741-1019
Email: beth@feganscott.com
AMERICAN HONDA: Wong Appeals Suit Dismissal to 9th Circuit
----------------------------------------------------------
ANDRE WONG, et al. are taking an appeal from a court order
dismissing their lawsuit entitled Andre Wong, et al., Plaintiffs,
v. American Honda Motor Co., Inc., et al., Defendants, Case No.
2:19-cv-10537-JLS-KES, in the U.S. District Court for the Central
District of California.
As previously reported in the Class Action Reporter, this lawsuit
is brought against the Defendants for breach of manufacturer's
warranty and for unfair or deceptive acts or practices pertaining
to Honda's design and manufacture of 2016-2018 model Honda Civics.
The Plaintiff alleges that the Class Vehicles contain a significant
design and/or manufacturing defect that causes a vehicle's air
conditioning system to malfunction and stop working while it is in
operation. The Plaintiff asserts that the defect directly affects
his and all others similarly situated use, enjoyment, safety, and
value of the Class Vehicles.
According to the complaint, Honda has long been aware of the defect
but routinely refuses to repair the Class Vehicles without charge.
Indeed, in many cases Honda has even refused to disclose the
defect's existence when owners or lessees present for service Class
Vehicles with symptoms consistent with the defect, instead
recommending costly repairs, sometimes to non-defective parts of
the affected vehicle.
On Nov. 12, 2021, the Plaintiffs filed a corrected first
consolidated class action amended complaint which the Defendants
moved to dismiss on Dec. 13, 2021.
On June 21, 2022, the Court granted the Defendants' motion to
dismiss the complaint through an Order entered by Judge Josephine
L. Staton.
On Oct. 28, 2022, judgment of dismissal was entered by Judge
Staton.
The appellate case is captioned Andre Wong, et al. v. American
Honda Motor Co., Inc., et al., Case No. 22-56113, in the United
States Court of Appeals for the Ninth Circuit, filed on November
29, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellants Mediation Questionnaire was due December 6, 2022;
-- Appellants opening brief is due on January 30, 2023;
-- Appellees American Honda Motor Co., Inc. and Does answering
brief is due on March 2, 2023; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief. [BN]
Plaintiffs-Appellants ANDRE WONG, et al., on behalf of themselves
and all others similarly situated, are represented by:
Marcus J. Bradley, Esq.
MARLIN & SALTZMAN, LLP
29800 Agoura Road
Agoura Hills, CA 91301
Telephone: (818) 991-8080
- and -
Shanon Jude Carson, Esq.
BERGER MONTAGUE, PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-3000
- and -
Kiley Lynn Grombacher, Esq.
BRADLEY GROMBACHER LLP
31365 Oak Crest Drive, Suite 240
Westlake Village, CA 91361
Telephone: (805) 270-7100
- and -
Steven A. Haskins, Esq.
Richard Dale McCune, Jr., Esq.
Mark I. Richards, Esq.
David Christopher Wright, Esq.
MCCUNE LAW GROUP, APC
3281 E. Guasti Road, Suite 100
Ontario, CA 91761
Telephone: (909) 557-1250
Defendants-Appellees AMERICAN HONDA MOTOR CO., INC., et al. are
represented by:
Eric Y. Kizirian, Esq.
Danielle Stierna, Esq.
LEWIS BRISBOIS BISGAARD & SMITH, LLP
633 W. 5th Street, Suite 4000
Los Angeles, CA 90071
Telephone: (213) 250-1800
(213) 358-6128
AMERICAN NATIONAL: Delacruz Files ADA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against The American National
Red Cross. The case is styled as Emanuel Delacruz, on behalf of
himself and all other persons similarly situated v. The American
National Red Cross, Case No. 1:22-cv-10293 (S.D.N.Y., Dec. 5,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The American Red Cross -- https://www.redcross.org/ -- also known
as the American National Red Cross, is a non-profit humanitarian
organization that provides emergency assistance, disaster relief,
and disaster preparedness education in the United States.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: michael@gottlieb.legal
ANDERSON COUNTY, TX: Bid to Strike Pruette's Declaration Filed
--------------------------------------------------------------
In the class action lawsuit captioned as CRISTIAN MARTINEZ AND PAUL
ESTRADA, individually and on behalf of all others similarly
situated, v. ANDERSON COUNTY; KARINA GARCIA, in her official
capacity as ANDERSON COUNTY BOND SUPERVISION OFFICER, Case No.
6:22-cv-00171-JCB-KNM (E.D. Tex.), the Plaintiffs move the Court to
enter an order striking Mr. Pruette's declaration.
On November 16, 2022, thes Court granted Defendants' motion to
compel the deposition of Edward Pruette as a fact witness.
To protect a member of Equal Justice Under Law's legal team from
what Plaintiffs' counsel believes to be a potentially invasive
deposition, the Plaintiffs move to strike Mr. Pruette's declaration
and withdraw him as a witness in this matter.
The Plaintiffs have conferred with counsel for Defendants, who do
not oppose the relief sought in this motion.
The Plaintiffs understand that there are assertions in Plaintiffs'
Renewed Motion for Class Certification that are now without a
citation.
A copy of the Plaintiff's motion dated Dec. 5, 2022 is available
from PacerMonitor.com at https://bit.ly/3UBeO7u at no extra
charge.[CC]
The Plaintiffs are represented by:
Natasha Baker, Esq.
Phil Telfeyan, Esq.
EQUAL JUSTICE UNDER LAW
400 7th St. NW, Suite 602
Washington, D.C. 20004
Telephone: (202) 505-2058
E-mail: nbaker@equaljusticeunderlaw.org
ptelfeyan@equaljusticeunderlaw.org
- and -
Donald J. Larkin, Esq.
Charles W. Nichols, Esq.
THE LAW OFFICE OF CHARLES W. NICHOLS, P.C.
617 E. Lacy St.
Palestine, TX 75801
Telephone: (903) 729-5104
Facsimile: (903) 729-0347
E-mail: donald@charleswnicholslaw.com
cnichols@charleswnicholslaw.com
ARMY AND AIR FORCE: Thompson Suit Removed to S.D. Illinois
----------------------------------------------------------
The case captioned as Linda Thompson, individually and on behalf of
all others similarly situated v. ARMY AND AIR FORCE EXCHANGE
SERVICE, Case No. 2022LA001292 was removed from the Third Judicial
Circuit, Madison County, Illinois, to the United States District
Court for the Southern District of Illinois on Dec. 2, 2022, and
assigned Case No. 3:22-cv-02799.
In her Complaint, the Plaintiff alleges that AAFES knowingly or
recklessly failed to comply with the Fair and Accurate Transactions
Act ("FACTA"), by disclosing certain credit and debit card account
information on Plaintiff and other AAFES's customers on printed
purchase receipts at AAFES stores.[BN]
The Defendants are represented by:
Taylor Pitz, Esq.
U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, DC 20005
Phone: (202) 305-5200
Email: taylor.n.pitz@usdoj.gov
ARS MOBILITY: Marte Files Suit Over Salesclerks' Unpaid Wages
-------------------------------------------------------------
ADRIAN MARTE, individually and on behalf of others similarly
situated, Plaintiff v. ARS MOBILITY LLC, a New York limited
liability company, and AGYAKAR WADHERA, an individual, Defendants,
Case No. 1:22-cv-10000 (S.D.N.Y., November 23, 2022) alleges the
Defendants of violations of the Fair Labor Standards Act and the
New York Labor Law.
The Plaintiff has worked for the Defendants as a salesclerk from
December 2020 through June 2022.
The Plaintiff asserts these claims:
-- The Defendants failed to pay him any overtime premium for
hours worked over 40 in each workweek despite working approximately
61 hours per week;
-- The Defendants failed to provide him with wage statements
at the time of payment of wages listing all necessary information;
-- The Defendants failed to provide him a notice containing
his rate of pay and all other necessary information; and
-- The Defendants failed to pay him the required “spread of
hours” pay for any day in which he worked 10 hours or more.
Due to its unlawful business practices, the Defendants have
intentionally, willfully, and repeatedly harmed the Plaintiff and
other similarly situated individuals. Thus, the Plaintiff brings
this complaint as a collective action, for himself and all other
similarly situated salesclerks, to recover damages for the amount
of unpaid minimum and overtime wages, spread of hours pay, and
damages for any improper deductions or credits taken against wages.
The Plaintiff also seeks liquidated damages, pre- and post-judgment
interest, attorneys' fees, costs and expenses incurred in this
action, and other relief as the Court deems just and proper, says
the suit.
Ars Mobility LLC sells cellular phones. Agyakar Wadhera is the
owner of the Corporate Defendant. [BN]
The Plaintiff is represented by:
Nolan Klein, Esq.
LAW OFFICES OF NOLAN KLEIN, P.A.
5550 Glades Rd., Ste. 500
Boca Raton, FL 33431
Tel: (954) 745-0588
E-mail: klein@nklegal.com
amy@nklegal.com
melanie@nklegal.com
ARTHUR J. GALLAGHER: Florio Suit Removed to M.D. Florida
--------------------------------------------------------
The case captioned as Alexandria Florio, individually and on behalf
of all others similarly situated v. ABBVIE, INC., Case No.
22-CA-008604 was removed from the Thirteenth Judicial Circuit Court
in and for Hillsborough County, Florida, to the United States
District Court for the Middle District of Florida, on Dec. 2, 2022,
and assigned Case No. 6:22-cv-02237-PGB-DCI.
The Plaintiff's single-count Complaint seeks relief from the
Defendant, on behalf of herself and a putative class of
similarly-situated persons, for allegedly making or causing to be
made multiple unlawful "telephonic sales calls" without the "prior
express written consent" of Plaintiff and the putative class
members, in purported violation of the Florida Telephone
Solicitation Act.[BN]
The Plaintiff is represented by:
Yaniv Adar, Esq.
Josh A. Migdal, Esq.
MARK MIGDAL & HAYDEN
80 S.W. 8th Street, Suite 1999
Miami, FL 33130
Phone: (305) 374-0440
Email: yaniv@markmigdal.com
josh@markmigdal.com
eservice@markmigdal.com
ARTHUR J. GALLAGHER: Hernandez Suit Removed to S.D. California
--------------------------------------------------------------
The case captioned as Itxamar Hernandez, an individual, on behalf
of herself and all others similarly situated v. ARTHUR J. GALLAGHER
SERVICE COMPANY, LLC, a Delaware limited liability company; PRONTO
AUTO INSURANCE SERVICES, INC., a California corporation; and DOES 1
to 50, Case No. 37-2022-00043504-CU-OE-CTL was removed from the
Superior Court of the State of California for the County of San
Diego, to the United States District Court for the Central District
of California on Dec. 2, 2022, and assigned Case No.
3:22-cv-01910-H-DEB.
The Plaintiff's Complaint seeks recovery of monetary damages, civil
penalties under the California Labor Code, and other relief against
Defendant in connection with the following purported causes of
action: failure to pay all minimum wages; failure to pay all
overtime wages; failure to provide rest periods and pay missed rest
period premiums; failure to provide meal periods and pay missed
meal period premiums; failure to maintain accurate employment
records; failure to pay wages timely during employment; failure to
pay all wages earned and unpaid at separation; failure to indemnify
all necessary business expenditures; failure to furnish accurate
itemized wage statements; and violation of California's unfair
competition law, Business and Professions Code.[BN]
The Defendants are represented by:
Joan B. Tucker Fife, Esq.
WINSTON & STRAWN LLP
101 California Street, 35th Floor
San Francisco, CA 94111
Phone: (415) 591-1000
Facsimile: (415) 591-1400
Email: jfife@winston.com
- and -
Caitlin W. Tran, Esq.
WINSTON & STRAWN LLP
333 S. Grand Avenue, 38th Floor
Los Angeles, CA 90071-1543
Phone: (213) 615-1700
Facsimile: (213) 615-1750
Email: cwtran@winston.com
ARTSANA USA: Court Grants Bid to Dismiss Seidl's Amended Complaint
------------------------------------------------------------------
In the case, CANDACE SEIDL, on behalf of herself and all others
similarly situated, Plaintiff v. ARTSANA USA, INC., d/b/a CHICCO,
Defendant, Case No. 5:22-cv-2586 (E.D. Pa.), Judge Joseph F. Leeson
of the U.S. District Court for the Eastern District of Pennsylvania
grants Chicco's motion to dismiss the Amended Complaint under Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
Seidl purchased the KeyFit 30 car seat from Artsana USA, d/b/a
Chicco, in part, because she believed it was free from chemicals
known as "FRs" and "PFAS" that some car seats on the market are
treated with. She thought the KeyFit 30 was chemical free because
she did not see any disclosures that it had been treated with
chemicals in the KeyFit 30's packaging, labeling, or ingredient
list. After purchasing the KeyFit 30, however, she discovered that
an independent third party had tested the KeyFit 30 and concluded
that it does contain FRs and is likely to contain PFAS.
Though the KeyFit 30 has not caused any health concerns for Seidl
or her child, she filed this putative class action lawsuit via an
amended complaint, claiming that she had been harmed economically
because she overpaid for the car seat believing that it was
chemical free based on Chicco's omissions and misrepresentations.
She points specifically to Chicco's Chemical Policy located on its
website and a press release that was issued when Chicco came out
with a new line of car seats. According to her, the Chemical Policy
and press release misrepresent that the KeyFit 30 is free from FRs
and PFAS. Based on Chicco's alleged misconduct, she brings seven
different claims in her amended complaint.
Chicco filed a motion to dismiss the Amended Complaint, making two
arguments. First, it argues that she lacks standing because she has
not alleged that she suffered an injury-in-fact. Second, it argues
that she has failed to state a claim upon which relief can be
granted for any of her seven claims.
Construing the Amended Complaint in a light most favorable to
Seidl, Judge Leeson opines that she has alleged facts sufficient to
establish an economic injury-in-fact; that is, that she paid a
price premium for the KeyFit 30 based on the belief that it had the
unique quality of being chemical free when it is not. Accepting
that as true, she has shown more than mere conjecture that she
overpaid for the KeyFit 30. She does not claim just how much she
overpaid, but she is not required at this stage of the litigation
to allege exactly how much, only that she suffered at least some
economic injury by overpaying.
Since Seidl has established that she has standing to bring her
claims, Judge Leeson analyzes whether those claims survive a motion
to dismiss. He says none of Seidl's seven claims can survive on the
allegation that Chicco simply failed to disclose that the KeyFit 30
contained FRs or PFAS. So, the only remaining allegation of
misconduct in the Amended Complaint is that Chicco actively
misrepresented to her that the KeyFit 30 did not contain FRs or
PFAS when it did.
Seidl points specifically to Chicco's Chemical Policy on its
website and its press release addressing its new line of car seats,
claiming that those statements are deceptive. This second
allegation differs from the first because, although Chicco may not
have a duty to proactively disclose information regarding FRs and
PFAS, it cannot actively misrepresent things about its products
that are untrue. Such misconduct could violate the UTPCPL and could
be grounds for Candace's other claims. With that in mind, Judge
Leeson takes a closer look at each of her seven claims in turn.
Judge Leeson finds that (i) Seidl has failed to plead sufficient
facts to support her claim under the UTPCPL because she did not
allege that she relied on Chicco's supposedly deceptive statements
that mention FRs and PFAS; (ii) she has not sufficiently pled her
fraud claim to survive a motion to dismiss because there are no
facts in the Amended Complaint that she relied on the supposed
misrepresentations; (iii) negligent misrepresentation claim fails
because Seidl has not sufficiently pled that she relied on any
misrepresentations regarding the use of chemicals in the KeyFit 30;
and (iv) her claims that Chicco breached an express warranty fail
because they are not sufficiently pled and even if an express
warranty existed, she does not allege that she provided Chicco with
the statutorily required pre-suit notice of the alleged breach of
express warranty.
Judge Leeson further finds that (i) for the same reasons he
dismisses Seidl's breach of express warranty claim with prejudice,
he dismisses her breach of implied warranty claim with prejudice;
(ii) since he dismisses all of the underlying claims, he must
dismiss the companion unjust enrichment claim too; and (iii)
Seidl's claim brought under the CFA fails as a matter of law
because she did not allege that she purchased the KeyFit 30 because
of the alleged misrepresentations in the Chemical Policy or press
release.
In sum, Judge Leeson concludes that Seidl claims that she was
harmed economically because Chicco failed to disclose that the
KeyFit 30 contains FRs and PFAS and misrepresented that it was
chemical free in its Chemical Policy and press release. However,
Chicco does not have a duty to actively disclose such information
and Candace did not allege that she relied on the Chemical Policy
or press release when she purchased the KeyFit 30.
For those reasons, and for the reasons given in his Opinion, Judge
Leeson determines that none of Seidl's claims raise a right of
relief above the speculative level, and he dismisses each claim
without prejudice. The exceptions are Seidl's claims for breach of
express and implied warranty. He dismisses those two claims with
prejudice because she failed to give Chicco the statutorily
required pre-suit notice, and no amendment can cure that
deficiency.
A separate Order follows.
A full-text copy of the Court's Nov. 30, 2022 Opinion is available
at https://tinyurl.com/5n6cfe5p from Leagle.com.
BAAS LLC: Case Management Order Entered in Osborn Class Suit
------------------------------------------------------------
In the class action lawsuit captioned as TODD OSBORN, v. B.A.A.S.,
LLC, Case No. 1:22-cv-00520-HYJ-RSK (W.D. Mich.), the Court entered
an case management order as follows:
-- Counsel and the parties August 5, 2024
shall be present in the
courtroom at to address
preliminary matters:
-- Motions to Join Parties Jan. 13, 2023
or Amend Pleadings:
-- Rule 26(a)(1) Disclosures
(including lay witnesses)
Plaintiff: December 7, 2022
Defendant: December 7, 2022
-- Motion for Class July 28, 2023
Certification:
A copy of the Court's order dated Dec. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3XZaDFw at no extra charge.[CC]
BANANA REPUBLIC: Davis Sues Over Fair Workweek Law Violation
------------------------------------------------------------
Nicole Davis, individually and on behalf of all others similarly
situated v. BANANA REPUBLIC, LLC, Case No. 1:22-cv-07308 (E.D.N.Y.,
Dec. 2, 2022), is brought arising out of the Defendant's failure to
comply with the New York City Fair Workweek Law, Title 20, Chapter
12 of the New York City Administrative Code ("Fair Workweek Law"),
by failing to provide predictable schedules.
New York City passed the Fair Workweek Law to require retail
employers to provide their employees with predictable schedules
with advance notice. The Defendant has violated the Fair Workweek
Law by failing to provide predictable schedules with at least 72
hours' notice, cancelling and/or shortening employees' shifts with
less than 72 hours' notice, requiring an employee to work
additional time with less than 72 hours' notice without written
consent, says the complaint.
The Plaintiff has been employed by Banana Republic as an Hourly
Worker since August 2020.
Banana Republic, LLC is a foreign business corporation organized
and existing under the laws of Delaware.[BN]
The Plaintiff is represented by:
Brian S. Schaffer, Esq.
Dana M. Cimera, Esq.
FITAPELLI & SCHAFFER, LLP
28 Liberty Street, 30th Floor
New York, NY 10005
Phone: (212) 300-0375
BAUER HOCKEY: Filing of Class Cert Bid Extended to March 2023
-------------------------------------------------------------
In the class action lawsuit captioned as BROOKS BARBER,
INDIVIDUALLY AND ON BEHALF OF ALL SIMILARLY SITUATED, v. BAUER
HOCKEY, LLC, Case No. 1:21-cv-00742-SE (D.N.H.), the Parties have
conferred, per Local Rule 7.1(c), and agreed to extend the Class
Certification Deadlines by 90 days, as follows:
Case Current Class Assented-To Class
Certification Certification
Deadlines Deadlines
-- Deadline for Dec. 8, 2022 March 8, 2023
Plaintiffs filing
motion for class
certification:
-- Deadline for Jan. 5, 2023 April 5, 2023
Defendants to file
opposition to
motion for class
certification:
-- Deadline for Jan. 26, 2023 April 26, 2023
Plaintiffs to file
reply in support
of motion for class
certification:
Bauer Hockey is an American manufacturer of ice hockey equipment,
fitness and recreational skates and apparel.
A copy of the Parties 's motion dated Dec. 5, 2022 is available
from PacerMonitor.com at https://bit.ly/3VMAoHg at no extra
charge.[CC]
The Plaintiff is represented by:
Brandon J. Verdream, Esq.
Andrew J. Ruxton, Esq.
CLARK HILL PLC
One Oxford Street, 14th Floor
Pittsburgh, PA 15219
E-mail: bverdream@clarkhill.com
aruxton@clarkhill.com
- and -
Pierre A. Chabot, Esq.
Marrielle Van Rossum, Esq.
DEVINE, MILLIMET & BRANCH, P.A.
111 Amherst Street
Manchester, NH 03101
E-mail: pchabot@devinemillimet.com
mvanrossum@devinemillimet.com
The Defendant is represented by:
Hannah E. Zaitlin, Esq.
FOLEY & LARDNER LLP
111 Huntington Avenue, Suite 2600
Boston, MA 02199-7610
E-mail: hzaitlin@foley.com
- and -
Donald W. Schroeder, Esq.
Katharine O. Beattie, Esq.
FOLEY & LARDNER LLP
111 Huntington Avenue, Suite 2600
Boston, MA 02199-7610
E-mail: dschroeder@foley.com
kbeattie@foley.com
shiggins@foley.com
BOBIT BUSINESS: Case Management Order Entered in Emral Suit
-----------------------------------------------------------
In the class action lawsuit captioned as WILLIAM EMRAL, v. BOBIT
BUSINESS MEDIA INC., Case No. 1:22-cv-00741-HYJ-RSK (W.D. Mich.),
the Hon. Judge Ray Kent entered a case management order as
follows:
-- Motions to Join Parties or January 13, 2023
Amend Pleadings:
-- Rule 26(a)(1) Disclosures
(including lay witnesses)
Plaintiff: December 7, 2022
Defendant: December 7, 2022
-- Motion for Class July 28, 2023
Certification:
-- Disclose Name, Address,
Area of Expertise and
a short summary of expected
testimony of Expert Witnesses
(Rule 26(a)(2)(A))
Party with the Burden of August 28, 2023
Proof:
Responding Party: September 28, 2023
-- Disclosure of Expert September 28, 2023
Reports (Rule 26(a)(2)(B))
Party with the Burden of
Proof:
Responding Party: October 28, 2023
-- Completion of Discovery: December 15, 2023
Bobit Business provides professional services.
A copy of the Court's order dated Dec. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3P4xM5e at no extra charge.[CC]
BRAIN DEAD: Crosson Files ADA Suit in E.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Brain Dead LLC. The
case is styled as Aretha Crosson, individually and as the
representative of a class of similarly situated persons v. Brain
Dead LLC, Case No. 1:22-cv-07312 (E.D.N.Y., Dec. 2, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Brain Dead -- https://wearebraindead.com/ -- is a creative
collective of artists and designers from around the world.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
BRYANT SECURITY: Tila-Cohen Sues Over Unpaid Compensations
----------------------------------------------------------
Itamar Tila-Cohen, individually, and on behalf of others similarly
situated v. BRYANT SECURITY CORPORATION, a Florida Corporation,
Case No. 1:22-cv-23942-XXXX (S.D. Fla., Dec. 2, 2022), is brought
recover half-time overtime hours and/or minimum wages for work
performed, liquidated damages, retaliatory damages, costs, and
reasonable attorney's fees from Defendant under the provisions of
the Fair Labor Standards Act.
While employed by the Defendant, the Plaintiff had an irregular
schedule, but he worked on site an average of 50 to 65 hours per
week including weekends. During the course of the Plaintiff's
employment with the Defendant, he was not paid for half-time
overtime hours as required by law. The Defendant willfully failed
to pay the Plaintiff overtime wages at the rate of time and
one-half his regular rate for every hour that he worked in excess
of 40 hours per week, says the complaint.
The Plaintiff was employed by thr Defendant as a non-exempt,
full-time, salaried employee from April 2016 to February 2022.
The Defendant provides security services to businesses, residential
communities, construction sites, retailers, and related security
services such as executive bodyguard protection.[BN]
The Plaintiff is represented by:
Brian K. Mathis, Esq.
Kimesha S. Smith, Esq.
MATHIS LAW GROUP
515 E. Las Olas Blvd., Suite 120
Ft. Lauderdale, FL 33301
Mailing: P.O. Box 91657
Lakeland, FL 33804
Phone: (954) 616-4404
Fax: (954) 616-4405
Email: bmathis@mathislawgroup.com
rbrenes@mathislawgroup.com
ksmith@mathislawgroup.com
ckuller@mathislawgroup.com
jkirkland@mathislawgroup.com
C&S WHOLESALE: Carter Suit Removed to E.D. California
-----------------------------------------------------
The case captioned as Deon Carter, an individual, on behalf of
himself and all others similarly situated v. C&S WHOLESALE GROCERS
INC., a Vermont Corporation; TRACY LOGISTICS LLC DBA STOCKTON
LOGISTICS LLC, a Delaware Limited Liability Company; C&S LOGISTICS
OF SACRAMENTO/TRACY LLC DBA SACRAMENTO LOGISTICS, a Delaware
Limited Liability Company; and DOES 1 TO 50, Case No.
STK-CV-UOE-2022-9933 was removed from the Superior Court of the
State of California in and for the County of San Joaquin, to the
United States District Court for the Eastern District of California
on Dec. 5, 2022, and assigned Case No. 1:22-at-00962.
The Plaintiff's Complaint alleges 10 purported causes of action
for: failure to pay all minimum wages; failure to pay all overtime
wages; failure to provide rest periods and pay missed rest period
premiums; failure to provide meal periods and pay missed meal
period premiums; failure to maintain accurate employment records;
failure to pay wages timely during employment; failure to pay all
wages earned and unpaid at separation; failure to indemnify all
necessary business expenditures; failure to furnish accurate
itemized wage statements; and violations of California's Unfair
Competition Law, (the "UCL"), based on alleged violations of the
California Labor Code.[BN]
The Defendants are represented by:
Matthew C. Kane, Esq.
Amy E. Beverlin, Esq.
Kerri H. Sakaue, Esq.
BAKER & HOSTETLER LLP
11601 Wilshire Boulevard, Suite 1400
Los Angeles, CA 90025-0509
Phone: 310.820.8800
Facsimile: 310.820.8859
Email: mkane@bakerlaw.com
abeverlin@bakerlaw.com
ksakaue@bakerlaw.com
- and -
Sylvia J. Kim, Esq.
BAKER & HOSTETLER LLP
Transamerica Pyramid
600 Montgomery Street, Suite 3100
San Francisco, CA 94111-2806
Phone: 415.659.2600
Facsimile: 415.659.2601
Email: sjkim@bakerlaw.com
C.R. ENGLAND: Hagest Suit Transferred to D. Utah
------------------------------------------------
The case styled as Marc Hagest and Wayne Suber, individually and on
behalf of all others similarly situated v. C.R. ENGLAND, INC., a
Utah Corporation, and DOES 1-50, inclusive, Case No. 3:22-cv-01406
was transferred from the U.S. District Court for the Southern
District of California, to the U.S. District Court for the District
of Utah on Dec. 5, 2022.
The District Court Clerk assigned Case No. 2:22-cv-00746 to the
proceeding.
The nature of suit is stated as Other Labor.
C.R. England -- https://www.crengland.com/ -- was founded in 1920
and is an American, family-owned, refrigerated trucking
company.[BN]
The Defendants are represented by:
Drew R. Hansen, Esq.
J. Randall Boyer, Esq.
NOSSAMAN LLP
18101 Von Karman Avenue, Suite 1800
Irvine, CA 92612
Phone: 949.833.7800
Facsimile: 949.833.7878
Email: dhansen@nossaman.com
rboyer@nossaman.com
CENLAR FSB: Lopez FDCPA Suit Removed to N.D. Illinois
-----------------------------------------------------
The case styled as Ana Lopez, individually, and on behalf of all
others similarly situated v. Cenlar FSB, Case No. 2022CH10704 was
removed from the Circuit Court of Cook County, Illinois, County
Department, Chancery Division, to the U.S. District Court for the
Northern District of Illinois on Dec. 5, 2022.
The District Court Clerk assigned Case No. 1:22-cv-06827 to the
proceeding.
The lawsuit is brought over alleged violation of the Fair Debt
Collection Act.
Cenlar FSB -- https://www.cenlar.com/ -- operates as a mortgage
subservicing company. The Company provides residential mortgage
loan services, as well as central loan administration and reporting
solutions.[BN]
The Plaintiffs appears pro se.
The Defendant is represented by:
Punit Kumar Marwaha, Esq.
TROUTMAN PEPPER HAMILTON SANDERS LLP
227 West Monroe Street, Suite 3900
Chicago, IL 60606
Phone: (312) 759-5949
Email: Punit.Marwaha@troutman.com
CENTENE MANAGEMENT: Filing of Reply to Class Cert Bid Extended
--------------------------------------------------------------
In the class action lawsuit captioned as Dickerson, et al., v.
Centene Management Company, LLC, et al.,Case No. 4:22-cv-00519
(E.D. Mo.), the Hon. Judge Henry Edward Autrey enter an order
granting additional time up to and including December 15, 2022
for:
-- unopposed motion for extension of time to file
response/reply as to motion to certify class motion for
conditional certification; and
-- approval and distribution of notice, and for disclosure of
contact information by the Defendants Centene Corporation,
Centene Management Company, LLC.
The nature of suit states Fair Labor Standards Act.
Centene is a publicly traded managed care company.[CC]
CENTRAL GARDEN: Graham Files Suit in N.D. California
----------------------------------------------------
A class action lawsuit has been filed against Central Garden & Pet
Company. The case is styled as Hillori Graham, individually and on
behalf of all others similarly situated v. Central Garden & Pet
Company, Case No. 3:22-cv-06507-JSC (N.D. Cal., Oct. 25, 2022).
The nature of suit is stated as Other Fraud.
Central Garden & Pet -- https://www.central.com/ -- is a market
leader in the Garden and Pet industries.[BN]
The Plaintiff is represented by:
Sarah Nicole Westcot, Esq.
BURSOR AND FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Phone: (925) 300-4455
Fax: (925) 407-2700
Email: swestcot@bursor.com
- and -
Stephen A. Beck, Esq.
BURSOR & FISHER P.A.
701 Brickell Avenue, Suite 1420
Miami, FL 33131
Phone: (305) 330-5512
Email: sbeck@bursor.com
CHRISTIANBOOK LLC: First Amended Case Management Order Entered
--------------------------------------------------------------
In the class action lawsuit captioned as TIMOTHY BOZUNG, v.
CHRISTIANBOOK, LLC, Case No. 1:22-cv-00304-HYJ-RSK (W.D. Mich.),
the Hon. Judge Ray Kent entered an order:
-- Motions or Stipulations to Nov. 4, 2022
Join Parties or Amend Pleadings:
-- Rule 26(a)(1) Disclosures
(including lay witnesses)
Plaintiff: Sept. 30, 2022
Defendant: Sept. 30, 2022
-- Motions for Class Certification: June 26, 2023
-- Disclose Name, Address, Area of
Expertise and a short summary of
expected testimony of Expert
Witnesses (Rule 26(a)(2)(A))
Plaintiff: May 26, 2023
Defendant: June 26, 2023
-- Disclosure of Expert Reports
(Rule 26(a)(2)(B))
Plaintiff: June 26, 2023
Defendant: Aug. 25, 2023
-- Completion of Discovery: Sept. 25, 2023
-- Dispositive Motions: Nov. 13, 2023
A copy of the Court's order dated Dec. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3h3PLfA at no extra charge.[CC]
CLAIRBORNE PARISH, LA: Class Action Status in Hicks v. Dowies Nixed
-------------------------------------------------------------------
In the case, ELLIS RAY HICKS, JR. v. SAM DOWIES, Civil Action No.
21-cv-1896 (W.D. La.), Magistrate Judge Mark L. Hornsby of the U.S.
District Court for the Western District of Louisiana, Shreveport
Division, denies Hicks' Motion to Contest for Disposition by
Defendant's Counselor(s), Motion Seeking Summary Judgment, and
Class Action Status.
The Plaintiff, who is self-represented, filed the civil action in
June 2021. He alleges that an inmate at the Claiborne Parish
Detention Center called him and passed on a message from Sheriff
Dowies that included a threat that the Plaintiff get out of
Louisiana or be arrested, that the Plaintiff drops or dismisses a
civil rights complaint, and that he not contact certain individuals
to assist him.
The Plaintiff filed in June 2022 a document titled Omnibus Petition
for: Motion to Contest for Disposition by Defendant's Counselor(s);
Motion Seeking Summary Judgment; and Class Action Status. The
filing argues that the sheriff's attorneys have attempted to thwart
the Plaintiff from receiving discovery, that class action status is
warranted because the issues affect a number of citizens in
Claiborne Parish, and that summary judgment is appropriate.
Judge Hornsby denies the motion. He explains that the Court has
previously specifically addressed the Plaintiff's complaints about
the discovery process, and relief has been afforded him in some
respects. There is no basis for granting class action status, which
the Court discussed in more detail in an order issued in September
2022. The filing also asks for summary judgment, but it merely
quotes Rule 56 and asks for judgment in favor of the Plaintiff.
That is insufficient to warrant any relief.
A full-text copy of the Court's Nov. 30, 2022 Memorandum Order is
available at https://tinyurl.com/5xfx34rj from Leagle.com.
CLOUDERA INC: Klin Appeals Amended Securities Suit Dismissal
------------------------------------------------------------
Plaintiffs Mariusz Klin, et al., filed an appeal from the District
Court's Order dated October 25, 2022, and Judgment dated October
26, 2022, entered in the lawsuit entitled In re Cloudera, Inc.
Securities Litigation, Case No. 3:19-cv-03221-MMC, in the U.S.
District Court for the Northern District of California, San
Francisco.
In 2017, the Company announced an Initial Public Offering and
Secondary Public Offering. The Plaintiffs alleged that during and
after this offering period, the Company misled investors with
claims about its "original cloud native architecture" and
"cloud-native platform" even though the Company lacked any of the
key features of "effective cloud computing." The key point of
contention was whether the terms "cloud native" and "cloud
architecture," which the Company used in its communications with
investors, had meaning beyond non-actionable corporate puffery.
Plaintiffs alleged that the terms had a specific meaning, which
they drew from an article published by the Company several months
after the close of the Class Period and years after most of the
challenged statements were made. According to plaintiffs, investors
would have understood "cloud-native" and "cloud architecture" to
refer to specific attributes that the Company's product actually
lacked. Additionally, plaintiffs alleged that statements made
during an April 3, 2018, earnings call were misleading because they
"suggested that the Company's weak guidance and results" were
attributable to mistakes in how the Company allocated sales
resources rather than "the market's shift to cloud offerings which
the Company then lacked."
As previously reported in the Class Action Reporter, Judge Maxine
M. Chesney of the United States District Court for the Northern
District of California granted on October 25, 2022 a motion to
dismiss the putative class action against Cloudera. The Plaintiffs
alleged that the Company misled investors in its characterization
of the Company's platform in violation of Sections 11, 12(a)(2),
and 15 of the Securities Act of 1933, Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934, and Rule 10b-5. The Court,
having dismissed an earlier complaint, dismissed the claims without
further leave to amend, finding that the Company's statements were
not false or misleading.
The Court's Judgment was also entered on October 26, 2022
dismissing the complaint without further leave to amend because
Plaintiffs had already amended their complaint and had failed to
cure deficiencies identified in a decision dismissing the prior
complaint.
The appellate case is captioned as Mariusz Klin, et al. v.
Cloudera, Inc., et al., Case No. 22-16807, in the United States
Court of Appeals for the Ninth Circuit, filed on November 23,
2022.
The briefing schedule in the Appellate Case states that:
-- Appellants Robert Boguslawski, Arthur P. Hoffman, Mariusz J.
Klin and The Mariusz J. Klin MD PA 401K Profit Sharing Plan
Mediation Questionnaire was due on November 30, 2022;
-- Appellants Robert Boguslawski, Arthur P. Hoffman, Mariusz J.
Klin and The Mariusz J. Klin MD PA 401K Profit Sharing Plan opening
brief is due on January 23, 2023;
-- Appellees Robert Bearden, Cloudera, Inc., Martin Cole, Paul
Cormier, Peter Fenton, Jim Frankola, Kimberly Hammonds, Intel
Corporation, Priya Jain, Kevin Klausmeyer, Ping Li, Michael A.
Olson, Thomas J. Reilly, Rosemary Schooler, Steven Sordello and
Michael A. Stankey answering brief is due on February 23, 2023;
and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiffs-Appellants MARIUSZ J. KLIN, Lead Plaintiff; THE MARIUSZ
J. KLIN MD PA 401K PROFIT SHARING PLAN; ROBERT BOGUSLAWSKI; and
ARTHUR P. HOFFMAN, on behalf of themselves and all others similarly
situated, are represented by:
Ramzi Abadou, Esq.
Alexander Burns, Esq.
Lewis S. Kahn, Esq.
KAHN SWICK & FOTI, LLC
1100 Poydras Street, Suite 3200
New Orleans, LA 70163
Telephone: (504) 455-1400
Defendants-Appellees CLOUDERA, INC., THOMAS J. REILLY, JIM
FRANKOLA, MICHAEL A. OLSON, PING LI, PRIYA JAIN, MARTIN COLE,
KIMBERLY HAMMONDS, ROSEMARY SCHOOLER, STEVEN SORDELLO, MICHAEL A.
STANKEY, ROBERT BEARDEN, PAUL CORMIER, PETER FENTON, KEVIN
KLAUSMEYER, and INTEL CORPORATION are represented by:
Derek Foran, Esq.
Anna Erickson White, Esq.
MORRISON & FOERSTER, LLP
425 Market Street
San Francisco, CA 94105-2482
Telephone: (415) 268-6323
- and -
Robert Leo Dell Angelo, Esq.
Jeffrey Y. Wu, Esq.
MUNGER, TOLLES & OLSON, LLP
350 S Grand Avenue, 50th Floor
Los Angeles, CA 90071
Telephone: (213) 683-9100
CO-DIAGNOSTICS INC: Lead Plaintiff Must File Reply Brief by Dec. 19
-------------------------------------------------------------------
In the class action lawsuit captioned as GELT TRADING, LTD., a
Cayman Islands limited company, v. CO-DIAGNOSTICS, INC., a Utah
Corporation, DWIGHT EGAN, JAMES NELSON, EUGENE DURENARD, EDWARD
MURPHY, RICHARD SERBIN, REED BENSON, BRENT SATTERFIELD, Case No.
2:20-cv-00368-JNP-DBP (D. Utah), the Hon. Judge Dustin B. Pead
entered an order granting joint motion for approval of stipulation
time to file reply in support of motion for class certification:
-- Lead Plaintiff's time to file a reply brief in support of
the motion for class certification shall be extended up to
and including December 19, 2022.
Co-Diagnostics is a molecular diagnostics company.
A copy of the Court's order dated Dec. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3VXypA0 at no extra charge.[CC]
COMMUNITY MEDICAL: E.D. California Remands Hinds Suit to State Ct.
------------------------------------------------------------------
In the case, DAVID HINDS, on behalf of themselves and others
similarly situated, Plaintiff v. COMMUNITY MEDICAL CENTERS, INC.,
Defendant, Case No. 2:22-cv-01207-JAM-AC (E.D. Cal.), Judge John A.
Mendez of the U.S. District Court for the Eastern District of
California denies CMC's motion for substitution and grants the
Plaintiff's motion for remand to state court.
On Nov. 11, 2021, Mr. Hinds filed suit against Community Medical
Centers, Inc. ("CMC") in San Joaquin Superior Court based on
various state laws alleging CMC failed to protect his Protected
Health Information ("PHI") and Personally Identifiable Information
("PII"). Thereafter four more cases alleging the same violations
were filed against CMC and the San Joaquin Superior Court
consolidated them into this class action. CMC then removed and
filed its motion to substitute the United States as this suit's
Defendant. The United States and the Plaintiff filed their
respective oppositions and CMC replied. In addition, the United
States and the Plaintiff filed motions to remand. CMC filed
oppositions to both, and the United States and the Plaintiff filed
replies.
CMC is a healthcare provider that operates over 25 facilities in
California. To offset its operation costs associated with
malpractice liability, CMC applied for and received federal grant
funding pursuant to The Federally Supported Health Centers
Assistance Act of 1992 ("FSHCAA"). As a recipient of this funding,
the Secretary of Health and Human Services (HHS) deemed CMC an
employee of the United States Public Health Service ("PHS") "for
the purposes of" 42 U.S.C. Section 233.
Under 42 U.S.C. Section 233, the Federal Tort Claims Act ("FTCA")
is the only remedy for certain medical-malpractice suits against
PHS employees. However, the FTCA's applicability is not automatic.
Instead, the United States Attorneys -- in accordance with Attorney
General's delegation of such duties -- evaluate when a lawsuit's
alleged actions or omission triggers the FTCA's coverage.
If a healthcare provider -- like CMC -- is sued in state court,
FSHCAA provides two avenues for the case's removal to federal
court: (1) the Attorney General can remove the case after
certifying the defendant is a deemed PHS employee whose actions or
omissions fall within the FTCA's purview; or (2) the healthcare
provider can remove the case on its own if the Attorney General
fails to appear within fifteen days of receiving notice of the
case.
After CMC applied and received FSHCAA funding in 2021 and 2022, it
learned of an "external system breach" compromising its patients
PHI and PII in October 2021. After CMC notified its patients of the
breach, Mr. Hinds filed suit against CMC in San Joaquin Superior
Court based on various state laws. Thereafter four more cases were
filed -- Beck, Donaire, Palermo, and Miranda -- due to the same
breach.
CMC forwarded each complaint to HHS, seeking its representation in
all instances. In January 2022, HHS' counsel denied CMC's request
because CMC and its staff are "deemed to be employees of the PHS
solely in medical malpractice cases" and the complaints'
allegations do "not fall under the auspice of the FSCHAA and
FTCA."
Later that month, the state court consolidated the abovementioned
cases into the Hinds case, and the parties entered a stipulated
case management order requiring the Plaintiffs to file and serve a
consolidated complaint by June 8, 2022. The Plaintiff filed and
served the Defendant the Consolidated Class Action Complaint
("CCAC") on June 9, 2022.
On June 13, 2022, CMS sent HHS and the United States Attorney for
the Eastern District of California the CCAC and letter seeking
"removal of the consolidated class action to federal district court
and substitution of the United States as the proper defendant in
the places of CMC." In accordance with Section 233(l)(1), the
United States Attorney appeared in the Court on June 22, 2022 and
explained he was determining whether Section 233's protection
shielded CMC from the Plaintiff's allegations.
On July 7, 2022, CMC asked the United States Attorney if he would
consent to CMC removing the case to federal court and substitution
of the United States in CMC's place. The United States Attorney
advised he was still evaluating the matter and "would oppose any
unilateral removal or attempt to compel the United States to
substitute as the defendant in lieu of CMC." One day later, CMC
removed the action to federal court.
On Aug. 5, 2022, the United States Attorney sent CMC a letter
denying its request because the "available information" indicated
the claims against CMC were not "for damage for personal injury,
including death, resulting from the performance of medical,
surgical, dental or related functions."
The parties dispute whether Section 233 entitles CMC to absolute
immunity and the United States' substitution in this suit.
Judge Mendez holds that Congress did not intend for the
Government's forceful substitution under Section 233(a). If the
Court allowed CMC's Section 233 interpretation to prevail, courts
could force the United States' participation in lawsuits where
jurisdiction over the Government is not established -- an outcome
that flies in the face of due process and will not be condoned by
this Court.
In addition, Judge Mendez holds that neither Sections 233(c) nor
(l)(2) aids CMC's argument that Section 233 allows the Court to
force the United States' substitution in this suit. Given district
courts "are creatures of statute, and they have only so much of the
judicial power of the United States as the acts of Congress have
conferred upon them," he agrees with the Government and finds it
lacks the statutory authority to grant CMC's request.
CMC's motion for substitution is accordingly denied. Furthermore,
given he reached it decision because of the Government's
opposition, Judge Mendez finds the Plaintiff's filings regarding
this matter moot and need not address them.
The Plaintiff urges the Court to remand the case because CMC
removed the action on July 8, 2022 -- over seven months after Mr.
Hinds filed his suit on Nov. 11, 2021. As a result, the Plaintiff
contends CMC failed to comport with 28 U.S.C. Section 1446(b).
Judge Mendez agrees with the Plaintiff and finds CMC's removal
untimely. CMC's opportunity to remove the cause of action expired
on Dec. 11, 2021. Furthermore, even if the Court found CMC's
argument that the District of South Carolina's decisions provided a
novel removal basis, its removal would still be untimely. Those
orders were published on June 2, 2022, and CMC's removal was filed
July 8, 2022 -- 36 days later.
Thus, for the reasons set forth, Judge Mendez grants the
Plaintiff's motion for remand. Moreover, because the Plaintiff's
motion is granted, he finds the United States' motion regarding
this matter moot and does not need to directly address its
arguments.
Finally, the Court issued its Order re Filing Requirements on July
11, 2022. The Filing Order limits reply memoranda to five pages.
The Filing Order also states that an attorney who exceeds the page
limit must pay monetary sanctions of $50 per page. CMC exceeded the
Court's five-page limit when it replied to the Plaintiff's
Opposition to CMC's motion for substitution by four pages and the
United States' Opposition to CMC's motion for substitution by six
pages.
Judge Mendez therefore orders CMC's counsel to pay $500 to the
Clerk for the Eastern District of California no later than seven
days from the date of his Order.
For the reasons set forth, Judge Mendez denies CMC's motion for
substitution and grants the Plaintiff's motion for remand.
A full-text copy of the Court's Nov. 30, 2022 Order is available at
https://tinyurl.com/y5wczeaw from Leagle.com.
CORCEPT THERAPEUTICS: Elliott Compelled to Comply With Subpoena
---------------------------------------------------------------
In the case, CORCEPT THERAPEUTICS, INC., Plaintiff v. STEPHEN
ELLIOTT, Defendant, Case No. 1:22-mc-24 (S.D. Ohio), Chief
Magistrate Judge Karen L. Litkovitz of the U.S. District Court for
the Southern District of Ohio, Western Division:
a. grants in part and denies in part Corcept's motion to
compel Elliott's compliance with its Subpoena; and
b. denies Elliott's motion for sanctions against Corcept for
failing to take reasonable steps to avoid imposing an undue
burden and expense on the Respondent.
Corcept commenced this miscellaneous action in support of
litigation pending in the U.S. District Court for the Northern
District of California, Ferraro Family Foundation, Inc. v. Corcept
Therapeutics Inc., Case No. 3:19-cv-01372 (N.D. Cal.). It asks the
Court to compel Respondent Elliott to comply with the subpoena it
issued by Corcept.
The Petitioner, a publicly-traded specialty pharmaceutical company
engaged in the discovery and development of drugs that regulate the
effects of the stress hormone cortisol, is one of the Defendants in
the underlying litigation. The Plaintiffs in the underlying
litigation allege that Corcept violated federal securities law by
engaging in a pervasive Company-wide off-label marketing scheme to
dupe unsuspecting physicians into inappropriately prescribing
Korlym. The operative complaint in the underlying litigation relies
heavily on purported reports from four confidential witnesses,
including the Respondent, who is identified as 'CW11' and is cited
more than 68 times in the Complaint.
The Petitioner states that the Respondent was a Corcept clinical
sales specialist from 2012 to 2016, and the Plaintiffs in the
underlying litigation have relied heavily on information provided
by him to support their allegations that Corcept engaged in
off-label marketing and told him to 'sit down and shut up' when he
purportedly raised the issue.
On March 9, 2022, the Petitioner issued a subpoena directed to the
Respondent seeking several categories of documents related to the
allegations in the Corcept Securities Action. Specifically, the
Subpoena sought the following documents from the Respondent:
1. A copy of Your most recent Resume.
2. All Documents and Communications related to this Action.
3. All Documents and Communications concerning Your
termination of employment at Corcept, including but not limited to
any termination or separation agreement(s).
4. All Documents and Communications concerning Corcept.
5. All Documents and Communications concerning the Individual
Defendants.
6. All Documents and Communications between You and any
Governmental Entity concerning Corcept, including, but not limited
to, Documents You provided to any Governmental Entity related to
the allegation that Corcept was engaged in off-label marketing.
7. All Documents and Communications between You and
Plaintiffs, their counsel, investigator(s) or other
representative(s) in this Action.
8. All Documents and Communications related to the statements
attributed to You in the Complaint, including, but not limited to,
those alleged at ¶¶ 175-76, 187, 190-94, 213-15, 262, 267, 270,
283-87, 292, 302, 366-67, 370, 372-73, 375, 379, 392, 412, 414, and
421 of the Complaint.
9. All Documents and Communications forming the basis of the
statements attributed to You in the Complaint.
10. All Documents and Communications concerning the allegation
that Corcept was engaged in off-label marketing.
11. All Documents and Communications concerning conversations
with other Confidential Witnesses about the Action or the
allegation that Corcept was engaged in off-label marketing,
including, but not limited to, any recording, notes or other
memorialization of such conversation(s).
The Respondent was served with the subpoena on March 10, 2022. The
Petitioner alleges that the requested documents in the subpoena go
to the heart of the claims at issue in the Corcept Securities
Action, and Corcept is entitled to their production.
The Petitioner alleges in the motion to compel that a month after
receiving the subpoena, the counsel for the Respondent conferred
with its counsel and stated that the Respondent did not believe he
could produce documents in response to the Subpoena because he had
already produced relevant documents to a U.S. Attorney's Office.
Thereafter, on May 9, 2022, his counsel informed Corcept that the
U.S. Attorneys' Office would be objecting to the Subpoena, and he
would not be producing any documents for that reason.
On June 7, 2022, the Respondent served Responses and Objections to
the Subpoena. The Petitioner alleges that the Respondent objected
that the Requests call for the disclosure of information pertaining
to the investigative activities of any governmental entity or
personnel. After communicating with the U.S. Attorney's Office, the
Petitioner informed the Respondent that it was withdrawing Request
No. 6. Despite withdrawing Request No. 6, the Petitioner alleges
that the Respondent still refuses to produce documents responsive
to the remaining Requests in the Subpoena.
On July 28, 2022, the Petitioner initiated the instant
miscellaneous action in support of the pending litigation in the
Northern District of California. Specifically, it moves the Court
to compel the Respondent's compliance with the subpoena.
The issue is whether the Court should grant the Petitioner's motion
to compel compliance with the Subpoena issued to the Respondent in
the underlying litigation. The Respondent opposes the motion to
compel and argues that the documents sought are not relevant, and
the requests are overly broad, disproportionate, and would unduly
burden him.
Pursuant to Fed. R. Civ. P. 45, Judge Litkovitz grants in part and
denies in part the Petitioner's motion to compel compliance with
the Subpoena. She denies the Petitioner's motion to compel
compliance is with respect to Request Nos. 1, 2, 3, 4, 5, 6, 7, 8,
9, and 11. She grants the Petitioner's motion with respect to
Request No. 10, with the exception of the Corcept documents.
Request No. 10 seeks "All Documents and Communications concerning
the allegation that Corcept was engaged in off-label marketing."
Judge Litkovitz finds that Request No. 10 is clearly relevant, and
it appears that the Respondent has collected and identified 40,000
potentially responsive documents. The Petitioner has demonstrated
the relevance of the information sought and the Respondent has
failed to meet his burden to show that the production would be
unduly burdensome.
Within 30 days of the date of the Order, the counsel for the
Respondent and the Petitioner are ordered to meet and confer, in
good faith, in order to attempt to resolve any privilege,
confidentiality, or privacy disputes and to develop search terms or
objective search criteria for use in identifying responsive and
non-privileged documents within Respondent's possession concerning
Request No. 10 (excluding Corcept documents drawn from its own
files). Following the meet and confer, the parties will contact the
Court if they are unable to resolve their concerns and wish to
request a discovery conference.
Judge Litkovitz denies the Respondent's motion for sanctions. She
finds that the Respondent has provided no evidence that the
Petitioner abused the subpoena process or demonstrated any bad
faith. The Petitioner narrowed the Subpoena after conferring with
the counsel for the Respondent by voluntarily removing Request No.
6 and has offered a continued willingness to engage in discussions
to narrow the requests in the Subpoena and to work with Respondent
to resolve any outstanding issues.
A full-text copy of the Court's Nov. 30, 2022 Order is available at
https://tinyurl.com/bdf29d8j from Leagle.com.
CROSS-LINES RETIREMENT: Can't Compel Executed Questionnaires in Coe
-------------------------------------------------------------------
In the case, DONALD COE, et al., individually and on behalf of
themselves and all others similarly situated, Plaintiffs v.
CROSS-LINES RETIREMENT CENTER, INC., et al., Defendants, Case No.
22-2047-EFM-ADM (D. Kan.), Magistrate Judge Angel D. Mitchell of
the U.S. District Court for the District of Kansas denies the
Defendants' Motion to Compel All Executed Questionnaires.
The lawsuit is a putative class action brought by elderly and
disabled residents of an apartment complex in Kansas City, Kansas,
called Cross-Lines Retirement Center. The named Plaintiffs, Donald
Coe, Linda Smith, and Edward Yost, are Cross-Lines residents who
allege that the complex owner, Cross-Lines Retirement Center Inc.,
and its property manager, Young Management Corp., failed to provide
safe and sanitary conditions.
On Sept. 23, 2021, the Plaintiffs' counsel -- attorneys from Bell
Law, LLC -- conducted a meeting at Cross-Lines regarding residents'
living conditions. Before the meeting, they created a form
questionnaire to distribute to residents. The two-page
Questionnaire began with fields for the residents to provide basic
identification information (e.g., resident name, address, unit
number).
A handful of residents attended the meeting. The Plaintiffs'
counsel distributed Questionnaires to those residents, some of whom
took extra copies to provide to residents who had expressed an
interest in meeting with attorneys but were unable to attend. In
the month after the meeting, nine residents returned executed
Questionnaires to Bell Law.
On October 27, Bell Law sent a letter to the Defendants, informing
them that some Cross-Lines residents had retained the firm and
intended to pursue a class-action lawsuit, and that the Defendants
had a duty to preserve relevant information. On October 29, the
Plaintiffs sent the Defendants a demand letter.
On November 1, the Plaintiffs' attorneys conducted a second meeting
at Cross-Lines regarding living conditions at the complex. During
the meeting, the counsel distributed a slightly modified version of
the Questionnaire, which included a new question asking whether the
respondent wished to be contacted "about my legal rights." A few
weeks later, the counsel distributed the revised Questionnaire to
all Cross-Lines residents via a mass mailing. About 30 residents
completed and returned revised Questionnaires to Bell Law.
On Feb. 1, 2022, the Plaintiffs filed their complaint in this case,
"on behalf of themselves and others similarly situated," against
Cross-Lines Retirement Center Inc. and Young Management. They
assert claims under the Americans with Disabilities Act, 42 U.S.C.
Section 12101 et seq., and the Fair Housing Act, 42 U.S.C. Section
3601 et seq., as well as for breach of duties imposed by Kansas
common law and statutes.
Around February 4, the Plaintiffs' counsel slightly revised the
Questionnaires again, creating the third iteration. Six residents
completed and returned the third iteration to Bell Law.
Discovery is now underway for the class-certification stage of the
case. In response to June 3 document requests the Defendants served
on each of the named Plaintiffs, the Plaintiffs produced blank
copies of the three iterations of the Questionnaire.
The matter is before the Court on the Defendants' Motion to Compel
All Executed Questionnaires. They seek to compel production of
questionnaires completed by the potential class members. The
Plaintiffs claim these documents are protected from disclosure by
the attorney-client privilege, the common-interest doctrine, and/or
the work-product doctrine. The Defendants argue the Plaintiffs have
failed to demonstrate the applicability of these privileges.
Judge Mitchell holds that the questionnaires are protected from
disclosure.
First, Judge Mitchell finds the Plaintiffs' privilege log, which
combines a chart and narrative, to be sufficient to assert
privilege and work-product claims under Rule 26(b)(5)(A)(ii). The
Plaintiffs' chart sufficiently provides pieces of information.
Despite the Defendants' suggestion otherwise, the Plaintiffs did
not simply make a "blanket claim of privilege." And contrary to the
Defendants' argument, the Plaintiffs were not required to submit
affidavits or sworn testimony to satisfy Rule 26(b)(5)(A)(ii).
Second, Judge Mitchell finds that the attorney-client privilege
permits the Plaintiffs to withhold all the Questionnaires over
which it is asserted. The communications at issue were made for the
purpose of obtaining legal assistance from a lawyer; and second,
that the communications were made in confidence. The Plaintiffs
have submitted a detailed privilege log accompanied by a narrative
in support of their privilege assertions. Through these materials,
they have met their burden to demonstrate these elements of the
attorney-client privilege.
Third, because Judge Mitchell has found the attorney-client
privilege protects all Questionnaires over which it was asserted,
she need only consider whether the one remaining Questionnaire,
executed by Linda Sweet, is protected work product. She finds that
the work-product doctrine protects Sweet's Questionnaire from
disclosure. The Plaintiffs have demonstrated that their attorneys
prepared the Questionnaire to aid them in litigating this case and
that Sweet completed it to return to the attorneys.
Although Rule 26(b)(3) permits discovery of protected work product
if the requesting party shows that it has a "substantial need" and
inability to obtain the equivalent without "undue hardship," the
Defendants do not suggest that either of these circumstances apply.
Moreover, they do not argue that work-product protection has been
waived as to Sweet's Questionnaire.
For these reasons, Judge Mitchell concludes that the Plaintiffs
have supported their privilege and work-product assertions over the
Questionnaires. Hence, he denies the Defendants' Motion to Compel
All Executed Questionnaires.
A full-text copy of the Court's Nov. 30, 2022 Memorandum & Order is
available at https://tinyurl.com/6mzjsapp from Leagle.com.
CROW VOTE: Ward Appeals Final Judgment in RICO Suit to 9th Cir.
---------------------------------------------------------------
Plaintiffs Bridget Ward, et al., filed an appeal from court rulings
entered in the lawsuit entitled Bridget Ward, et al. v. Crow Vote
LLC, et al., Case No. 8:21-cv-01110-FWS-DFM, in the U.S. District
Court for the Central District of California, Santa Ana.
As reported in the Class Action Reporter on July 14, 2021, the
lawsuit was removed from the Orange County Superior Court to the
United States District Court for the Central District of California
(Southern Division - Santa Ana) on June 24, 2021. The suit alleges
Defendant's violation of the Racketeer Influenced and Corrupt
Organizations Act.
The Plaintiffs seek a review of the following Court orders:
-- October 7, 2022 Orders by Judge Fred W. Slaughter DENYING
Plaintiffs' May 30, 2022 Motion for Class Certification, and
GRANTING Defendants' June 24, 2022 Motion for Summary Judgment of
Plaintiffs' Complaint;
-- October 11, 2022 Order by Judge Slaughter DENYING Plaintiffs'
July 28, 2022 Motion to Amend Complaint; and
-- October 26, 2022 Final Judgment entered by Judge Slaughter in
favor of Defendants and against Plaintiffs on all claims asserted
by Plaintiffs against Defendants.
The appellate case is captioned as Bridget Ward, et al. v. Crow
Vote, LLC, et al., Case No. 22-56108, in the United States Court of
Appeals for the Ninth Circuit, filed on Nov. 25, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellants Bridget Ward and Lisa Ward Mediation Questionnaire
was due on Dec. 2, 2022;
-- Transcript shall be ordered by December 27, 2022;
-- Transcript is due on January 26, 2023;
-- Appellants Bridget Ward and Lisa Ward opening brief is due on
March 3, 2023;
-- Appellees Darrin Austin, Crow Vote, LLC and Edward Matney
answering brief is due on April 3, 2023; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiffs-Appellants BRIDGET WARD and LISA WARD, on behalf of
themselves and all persons similarly situated, are represented by:
Jeffrey Spencer, Esq.
THE SPENCER LAW FIRM
1211 Puerta Del Sol
San Clemente, CA 92673
Telephone: (949) 240-8595
- and -
Jeffrey Wilens, Esq.
Macy Wilens, Esq.
LAKESHORE LAW CENTER
18340 Yorba Linda Boulevard, Suite 107-610
Yorba Linda, CA 92886
Telephone: (714) 854-7205
Defendants-Appellees CROW VOTE, LLC, DARRIN AUSTIN, and EDWARD
MATNEY are represented by:
Scott J. Hyman, Esq.
SEVERSON & WERSON, APC
19100 Von Karman Avenue, Suite 700
Irvine, CA 92612
Telephone: (949) 442-7110
- and -
Lewis Steven Wiener, Esq.
EVERSHEDS SUTHERLAND (US), LLP
700 6th Street, NW, Suite 700
Washington, DC 20001-3980
Telephone: (202) 383-0140
- and -
Ronald Zdrojeski, Esq.
EVERSHEDS SUTHERLAND (US) LLP
1114 Avenue of the Americas
The Grace Building, 40th Floor
New York, NY 10036
Telephone: (212) 389-5000
DINGDONG (CAYMAN): McCormack Denied as Lead Plaintiff in Fraud Suit
-------------------------------------------------------------------
In the case, RYAN McCORMACK, Plaintiff v. DINGDONG (CAYMAN) LTD.,
et al., Defendants, Case No. 22-CV-7273 (VSB) (S.D.N.Y.), Judge
Vernon S. Broderick of the U.S. District Court for the Southern
District of New York denies McCormack's motion for appointment as
the Lead Plaintiff and approval of his selection of lead counsel.
McCormack brings this securities fraud action against Dingdong and
several of its officers and underwriters, alleging violations of
Sections 11, 12, and 15 of the Securities Act, 15 U.S.C. Sections
77k, 77-l(a)(2), and 77o.
Dingdong is an e-commerce company based in China that sells fresh
groceries. On June 29, 2022, Dingdong conducted an initial public
offering ("IPO") in New York, issuing more than 4 million shares at
$23.50 per share. In connection with its IPO, it filed a F-1
registration statement with the Securities and Exchange
Commission.
The gravamen of McCormack's lawsuit is that the Registration
Statement contained material omissions and misrepresentations about
Dingdong's commitment to ensuring the safety and quality of the
food it distributes to the market. McCormack claims that despite
promising "stringent quality control," Dingdong was selling, for
example, dead fish to customers while marketing it as live fish and
recycling vegetables that were past their sell-by date. He further
claims that when the truth of the Defendants' misrepresentations
and omissions began to emerge, the price of Dingdong's shares
suffered sharp declines.
On Aug. 25, 2022, McCormack filed a class action complaint against
Dingdong; Dingdong Board of Directors members Changlin Liang, Le
Yu, Yi Ding, Eric Chi Zhang, Weili Hong, Philip Wai Lap Leung, and
Colleen A. De Vries (together, "Individual Defendants"); Dingdong
underwriters Morgan Stanley & Co. LLC, BofA Securities, Inc.,
Credit Suisse Securities (USA) LLC, Mission Capital Management
Limited, HSBC Securities (USA) Inc., Futu Inc., and Tiger Brokers
(NZ) Limited, (together, "Underwriter Defendants"); and Dingdong's
authorized United States representative Cogency Global Inc.
(altogether, "Defendants"). He alleges that the Individual
Defendants are liable because they each reviewed, contributed to,
signed, or authorized the signing of the Registration Statement and
related documents. He also alleges that the Underwriter Defendants
knew or should have known about the material omissions and
misrepresentations in the Registration Statement and yet continued
to solicit investors to buy Dingdong IPO shares.
The same day that McCormack filed his Complaint, McCormack's
counsel, Scott+Scott Attorneys at Law LLP, published a notice of
the lawsuit on Business Wire that gives details about the factual
allegations in the lawsuit. The notice then advises that the "Lead
Plaintiff deadline" is "October 24, 2022" and that "any member of
the proposed Class may seek to serve as Lead Plaintiff through
counsel of their choice, or may choose to do nothing and remain a
member of the proposed Class." Under the heading, "What You Can
Do," the notice again advises, "If you purchased Dingdong ADS
pursuant and/or traceable to the Company's IPO, or if you have
questions about this notice or your legal rights, you are
encouraged to contact attorney Jonathan Zimmerman at (888) 398-9312
or zimmerman@scott-scott.com."
On Oct. 26, 2022, McCormack filed a motion seeking appointment as
the Lead Plaintiff and approval of his selection of lead counsel,
along with a memorandum of law in support, and an affidavit and
exhibits in support. In support of his motion seeking appointment
as lead plaintiff, McCormack attests that on Oct. 20, 2021, he
bought 40 shares of Dingdong at $24.96 per share, and on Jan. 10,
2022, he sold 40 shares of Dingdong at $12.35 per share, resulting
in a $504.40 loss. No other Dingdong shareholder has filed a motion
to be appointed lead plaintiff. On Nov. 14, 2022, McCormack filed a
notice of unopposed motion indicating that no one has opposed his
motion seeking appointment as the Lead Plaintiff.
Broderick opines that the notice is materially deficient for
several reasons. First, the notice does not indicate the purported
class period, as required by the PSLRA. This omission, he says, is
particularly problematic since the body of the Complaint does not
specifically allege a class period either, nor does it contain the
terms "class period" or "loss." Second, the notice does not
adequately inform purported class members of their rights. It does
not make clear that "any member of the purported class may move the
court to serve as lead plaintiff," or otherwise provide any
information about how a member of the purported class might go
about seeking appointment as lead plaintiff.
However, Judge Broderick says he need not decide whether the
deficient notice, standing alone, justifies the denial of
McCormack's motion because he also finds that McCormack fails to
make a preliminary demonstration that he will adequately protect
the interests of the class.
Judge Broderick then opines that it is well settled that the Court
is obligated to evaluate the requirements of the PSLRA, even if a
movant's lead plaintiff motion is unopposed. He finds McCormack has
failed to persuade this Court that he has sufficient interest in
the litigation to 'vigorously' pursue the class claims and
adequately represent the interests of class members. Furthermore,
there is a risk that McCormack's losses will not be recoverable,
which renders him unable to fairly and adequately protect the
interest of the class.
Because he finds that McCormack will not fairly and adequately
protect the interest of the class, Judge Broderick opines that the
case cannot proceed as a class action, and denies McCormack's
motion. However, McCormack may still pursue his claims on an
individual basis.
For the foregoing reasons, Judge Broderick denies McCormack's
motion for appointment as lead plaintiff and approval of his choice
of lead counsel. As previously ordered, within 21 days, the parties
will submit a proposed schedule for the filing of any amended
complaint and subsequent response. The Clerk of Court is
respectfully directed to terminate all open gavels.
A full-text copy of the Court's Nov. 30, 2022 Opinion & Order is
available at https://tinyurl.com/5y4rcsuy from Leagle.com.
Thomas Livezey Laughlin, IV -- tlaughlin@scott-scott.com -- Scott +
Scott, L.L.P., New York, NY, Counsel for the Plaintiff.
Matthew Osborn Solum -- matthew.solum@kirkland.com -- Kirkland &
Ellis LLP, New York, NY, Counsel for Defendant Dingdong (Cayman)
Ltd.
Joanna Andrea Diakos -- joanna.diakoskordalis@klgates.com -- Priya
Chadha -- priya.chadha@klgates.com -- K&L Gates LLP, New York, NY,
Counsel for Defendants Colleen A. De Vries and Cogency Global Inc.
ENERGY TRANSFER: Partly Compelled to Show Docs in Allegheny Suit
----------------------------------------------------------------
In the case, ALLEGHENY COUNTY EMPLOYEES' RETIREMENT SYSTEM, et al.,
Plaintiffs v. ENERGY TRANSFER LP, et al., Defendants, Civil Action
No. 20-200 (E.D. Pa.), Judge Gerald Austin McHugh of the U.S.
District Court for the Eastern District of Pennsylvania grants in
part and denies in part the Plaintiffs' motion to compel all
documents produced by the Defendants in previous legal actions and
investigations involving the Defendants' pipeline construction
activities.
The Plaintiffs in this securities class action move to compel all
documents produced by the Defendants in previous legal actions and
investigations involving the Defendants' pipeline construction
activities. They argue that the Defendants failed to produce
relevant documents contained in these prior productions, and that
they are entitled to the entire set of documents produced in each
of these prior actions and investigations.
The class action is on behalf of investors in Energy Transfer, a
pipeline company whose operations include developing the Mariner
East 1 and 2 ("ME1 and ME2") and Revolution pipelines in
Pennsylvania. The Plaintiffs allege that the Defendants issued a
series of false or misleading statements during the class period
related to the construction of these pipelines.
In granting the Plaintiffs' motion for class certification, Judge
McHugh certified the class regarding front-end misrepresentations
by Defendants in August 2017 about the project's timeline and
completion date, and regarding the following corrective disclosures
by the Defendants:
(1) August 2018 disclosures regarding temporary use of an
existing 12-inch pipeline in lieu of new 20-inch pipeline for part
of the ME2 pipeline's route in order to meet project construction
deadlines, which limited the ME2's ability to meet its projected
capacity;
(2) October 2018 disclosures regarding an explosion on the
Revolution Pipeline and a resulting stop work order on the
Revolution Pipeline issued by the Pennsylvania Department of
Environmental Protection;
(3) December 2018 disclosures regarding the Chester County
District Attorney's investigation into Energy Transfer's pipeline
construction activities; and
(4) November 2019 disclosures regarding an FBI investigation
into corruption in the permitting process for Energy Transfer
pipelines in Pennsylvania.
Judge McHugh did not certify the class regarding disclosures in
August 2019 and December 2019 about Energy Transfer's use of state
constables at pipeline construction sites, which were announced as
part of the Chester County District Attorney's investigation.
The Plaintiffs' first set of document requests sought previous
productions in an array of investigations and litigation related to
the Defendants' pipeline projects. The parties ultimately agreed on
a search protocol of 200 targeted search terms and several file
custodians in January 2022, with the Plaintiffs reserving the right
"to serve additional document requests as discovery proceeds."
After running the search protocol, the Defendants produced to the
Plaintiffs "almost 100,000 documents," which they claim includes
"thousands of documents from the Chester County District Attorney
and Pennsylvania Attorney General productions." The Plaintiffs,
however, responded that the Defendants' production was deficient.
In communications between the parties over the following months,
the Plaintiffs insisted that they are entitled to all documents
produced in the previous investigations and litigation, given what
they contend is the "near-total overlap" of the prior actions with
their claims. The Defendants refused to turn over any additional
documents from these productions, arguing that "wholesale
reproduction" of Defendants' prior productions is improper "cloned
discovery." The parties remain at an impasse over this issue.
The Plaintiffs therefore move to compel the following documents:
(1) All documents Energy Transfer and its subsidiaries
produced in connection with the Chester County District Attorney's
investigation into Energy Transfer's Pennsylvania-based pipeline
projects, announced on December 19, 2018, as well as all
correspondence with the Chester County District Attorney related to
that investigation and all discovery requests and responses related
to that investigation;
(2) All documents Energy Transfer and its subsidiaries
produced in connection with the Pennsylvania Attorney General and
Delaware County District Attorney's investigation into criminal
misconduct by Energy Transfer, Sunoco Logistics Partners, and
related corporate entities concerning pipeline construction and
related activities for the Energy Transfer's Pennsylvania-based
pipelines, announced on March 20, 2019, as well as all
correspondence with the Pennsylvania Attorney General and Delaware
County District Attorney related to that investigation and all
discovery requests and responses related to that investigation;
(3) All documents Energy Transfer and its subsidiaries
produced in connection with the Environmental Hearing Board appeal
of the Pennsylvania Department of Environmental Protection's
issuance of the permits related to the ME2 pipeline, filed on
February 13, 2017 by the Clean Air Council, the Delaware
Riverkeepers Network, and the Mountain Watershed Association, Inc.,
as well as all correspondence with the plaintiffs in that
litigation related to that litigation and all discovery requests
and responses related to that litigation; and
(4) All documents any party produced in connection with any
litigation related to Energy Transfer's pipeline projects brought
by or on behalf of residents near the Lisa Drive site, where Energy
Transfer's pipeline construction caused sinkholes, as well as all
correspondence with the plaintiffs in any such litigation related
to that litigation and all discovery requests and responses related
to any such litigation.
The Defendants assert that the Plaintiffs' request is overly broad
and constitutes improper cloned discovery.
Judge McHugh holds that the Plaintiffs meet their burden for
discrete sets of documents produced by the Defendants to the
Chester County District Attorney, the Delaware County District
Attorney, and the Pennsylvania Attorney General, and he grants the
motion to that extent.
First, Judge McHugh finds that the Plaintiffs meet their burden
regarding a limited part of the Defendants' prior production to
Chester County District Attorney. He says the Plaintiffs meet their
burden regarding the three specific sets of documents requested by
the District Attorney. Documents regarding sinkholes and geographic
anomalies at Lisa Drive are relevant to what the Defendant knew and
when about geological barriers to pipeline construction in the
area. Documents related to water contamination are relevant to what
the Defendant knew and when about pipeline safety and compliance
with state environmental permits, and whether their knowledge
conflicted with public statements about construction safety and
completion timelines. Documents related to the Revolution pipeline
explosion are relevant to the Defendant's knowledge of geologic
issues impacting pipeline construction in Pennsylvania, and these
issues' impact on pipeline completion timelines.
However, Judge McHugh finds that the Plaintiffs do not meet their
burden for other documents produced to the District Attorney as
part of the Chester County investigation, including any "attorney
correspondence and discovery requests" created in connection with
the District Attorney's investigation. They cannot establish that
most documents produced to the Chester County District Attorney by
Defendants should be compelled.
Second, Judge McHugh finds that the Plaintiffs meet their burden
regarding a limited part of the Defendants' prior production to the
Pennsylvania Attorney General and Delaware County District
Attorney. He says the Plaintiffs (i) meet their burden regarding
documents produced to the joint investigation related to the
Revolution Pipeline explosion; and (ii) do not meet their burden
for other remaining documents produced to the Attorney General and
District Attorney during the investigation.
Third, Judge McHugh finds that the Plaintiffs do not meet their
burden regarding any prior production related to the Pennsylvania
Environmental Hearing Board permit appeal. The Plaintiffs summarily
argue that any document produced as part of this appeal is relevant
to their case, but do not with any specificity show that these
documents are relevant and proportional to the needs of the case.
Finally, Judge McHugh finds that the Plaintiffs do not meet their
burden regarding any prior production related to the Lisa Drive
litigation. He says the Plaintiffs' Motion does not specifically
explain why documents from these cases are relevant to their
claims. They also do not identify any specific cases filed by Lisa
Drive residents, beyond citing to a single paragraph of their
Amended Complaint that briefly discusses a class action filed in
March 2018.
For these reasons set forth, Judge McHugh grants in part and denies
in part the Plaintiffs' Motion to Compel. He denies much of the
Plaintiffs' Motion, but grants it as to specific sets of documents
produced to the Chester County District Attorney, the Delaware
County District Attorney, and the Pennsylvania Attorney General. An
appropriate order follows.
A full-text copy of the Court's Nov. 30, 2022 Memorandum is
available at https://tinyurl.com/bdepyy83 from Leagle.com.
EPITEC INC: Misclassifies Recruiters, Stewart Suit Alleges
----------------------------------------------------------
The case, MICHAEL STEWART, on behalf of himself and all others
similarly situated, Plaintiff v. EPITEC, INC., Defendant, Case No.
2:22-cv-12857-SJM-APP (E.D. Mich., November 23, 2022) is brought by
the Plaintiff as a collective action against the Defendant for its
alleged violations of the Fair Labor Standards Act.
The Plaintiff was employed by the Defendant as a recruiter from
approximately May 2022 to June 29, 2022.
According to the complaint, the Plaintiff and other similarly
situated employees were misclassified by the Defendant as exempted
from the overtime provisions of the FLSA. They were required to
work more than 40 hours per workweek but the Defendant failed to
compensate them for the overtime hours they worked as mandated by
the FLSA. The Defendant also failed to make, keep, and preserve
records of the unpaid work performed by the Plaintiff and other
similarly situated recruiters, says the suit.
On behalf of himself and all other similarly situated recruiters,
the Plaintiff seeks to recover actual damages for unpaid wages,
liquidated damages equal in amount to the unpaid wages, pre- and
post-judgment interest, attorneys' fees, costs, and disbursements,
and other further relief as the Court deems just and proper.
Epitec, Inc. provides recruiting services to its customers. [BN]
The Plaintiff is represented by:
Anthony J. Lazzaro, Esq.
Matthew S. Grimsley, Esq.
Lori M. Griffin, Esq.
Alanna Klein Fischer, Esq.
THE LAZZARO LAW FIRM, LLC
The Heritage Building, Suite 250
34555 Chagrin Boulevard
Moreland Hills, OH 44022
Tel: (216) 696-5000
Fax: (216) 696-7005
E-mail: anthony@lazzarolawfirm.com
matthew@lazzarolawfirm.com
lori@lazzarolawfirm.com
alanna@lazzarolawfirm.com
FLORIDA: Longino Class Suit vs. FCCC Dismissed Without Prejudice
----------------------------------------------------------------
Judge John E. Steele of the U.S. District Court for the Middle
District of Florida, Fort Myers Division, dismisses the case,
SAMUEL LONGINO AND WILLIS BAILEY, Plaintiffs v. MELINDA MASTERS,
JON CARNER, COURTNEY JONES, AND KERI FITZPATRICK, Defendants, Case
No. 2:22-cv-672-JES-NPM (M.D. Fla.), without prejudice to any
individual resident filing a separate complaint.
The cause is before the Court on consideration of the Plaintiffs'
pro se civil rights complaint filed against four employees of the
Florida Civil Commitment Center ("FCCC") in Arcadia, Florida. The
Plaintiffs also filed a motion to proceed in forma pauperis. They
seek to bring the complaint as a class action on behalf of
themselves and 569 other residents of the FCCC.
The Plaintiffs complain that the FCCC does not have an adequate law
library. Instead, the facility has a computer lab with 20 computers
for the entire resident population, with only ten of those
designated as legal computers. This leaves residents who wish to do
legal work with only four and a half hours per week in the computer
lab.
Moreover, the FCCC employee who runs the lab is untrained in the
law and has no experience in conducting legal research via Lexis
Nexis, and FCCC residents are not allowed to provide legal advice
to other residents. Therefore, neither the employee nor other
residents can assist fellow residents who use the computer lab for
legal purposes.
Residents have asked the administration to provide a "law library
that would guarantee them adequate, effective, and meaningful
access to the courts." Specifically, they have requested training
on Lexis Nexis and on drafting legal documents. They also asked the
facility to hire a person trained in the law to run the library and
provide legal assistance. However, their requests were denied or
unanswered by the Defendants.
The Plaintiffs seek injunctive relief in the form of an adequate
law library and a resident legal assistance program to educate
residents on Lexis Nexis and on the preparation of legal
documents.
Judge Steele concludes that because the Plaintiffs have not alleged
an actual or imminent injury, they lack standing to bring the
action in a personal capacity. In addition, the Plaintiffs may not
bring a class action case on behalf of other residents of the FCCC.
Accordingly, the complaint is dismissed for failure to state a
claim on which relief may be granted. Because this dismissal is
based on circumstances that cannot be changed in an amended
complaint (standing and class certification), providing the
Plaintiffs an opportunity to amend the complaint would be futile.
Accordingly, Judge Steele dismisses the Plaintiffs' class action
complaint without prejudice to any individual resident filing his
own 42 U.S.C. Section 1983 complaint along with a filing fee or
motion to proceed as a pauper.
The Clerk of Court is directed to deny any pending motions as moot,
close the case, and enter judgment accordingly.
A full-text copy of the Court's Nov. 30, 2022 Order is available at
https://tinyurl.com/s46mnjk6 from Leagle.com.
FRIGHT-RAGS INC: Batista Sues Over Blind-Inaccessible Website
-------------------------------------------------------------
Juan Batista, individually, and on behalf of all others similarly
situated v. FRIGHT-RAGS INC., Case No. 534040/2022 (N.Y. Sup. Ct.,
Kings Cty., Nov. 21, 2022), is brought to challenge the Defendant's
discriminatory business practices with regards to the Defendant's
Website, fright-rags.com, which contained access barriers that
prevented the Plaintiff and other visually impaired and/or legally
blind individuals from purchasing products thereon, is brought the
New York State Human Rights Law; the New York State Civil Rights
Law; and the New York City Human Rights Law.
The Defendant's website does not provide a text equivalent for many
non-text elements, such as images on the webpage. Plaintiff and
other blind customers cannot see pictures, logos, or icons and
therefore an alternative text is read aloud using synthesized
speech. Sighted individuals can see the image. Unfortunately,
Defendant's website contains many images that lack alt-text,
including the desired horror t-shirt, and therefore the screen
reader cannot accurately vocalize descriptions of the images to
Plaintiff or other class members. As a result, Plaintiff and other
blind customers are unable to determine the details of products on
the website, and make purchases. Plaintiff is therefore unable to
make informed decisions and is prevented from purchasing items as a
sighted individual.
The Website is not properly coded to read all of the information
located within embedded links. Instead of reading a products entire
description, the Website is only coded for part of the product
descriptions and Plaintiff does not have access to a full
description of what he is seeking to buy. This prevents Plaintiff
from making an informed choice as to products to purchase as a
sighted New York customer would. As a result of the existence of
35. these access barriers, Plaintiff was repeatedly denied full and
equal access to Defendant's Website, says the complaint.
The Plaintiff is a blind, visually impaired, handicapped person.
The Defendant is an online retail company, who owns and/or operates
fright-rags.com and sells its products, such as horror
merchandise.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
Daniela Mendes, Esq.
MIZRAHI KROUB LLP
225 Broadway, 39th Floor
New York, NY 10007
Phone: 212/595-6200
Fax: 212/595-9700
Email: ekroub@mizrahikroub.com
dmendes@mizrahikroub.com
GAP INC: Diaz Sues Over False and Misleading Statements
-------------------------------------------------------
Joshua Diaz, Individually and on behalf of all others similarly
situated v. THE GAP, INC., SONIA SYNGAL, and KATRINA O'CONNELL,
Case No. 1:22-cv-07371 (E.D.N.Y., Dec. 5, 2022), is brought on
behalf of persons or entities who purchased or otherwise acquired
publicly traded Gap securities between November 24, 2021 and July
11, 2022, inclusive (the "Class Period"), seeking to recover
compensable damages caused by the Defendants' violations of the
federal securities laws under the Securities Exchange Act of 1934
with regards to the Defendants' false and/or misleading
statements.
In the second half of 2021 the Company introduced BODEQUALITY, a
size-inclusivity campaign which introduced up to size 28 in all Old
Navy stores. In an August 26, 2021 press release, defendant Syngal
touted the importance of BODEQUALITY as one of the Company's key
drivers of long-term sustainable growth. On November 23, 2021,
after market hours, the Company issued a press release announcing
it results for the third quarter ended October 30, 2021. In the
announcement, the Company touted its BODEQUALITY launch.
On November 24, 2021, the Company filed with the SEC its periodic
report on Form 10-Q for the quarter ended October 30, 2021 (the
"3Q21 Report") which was signed by Defendants Syngal and O'Connell.
Attached to the 3Q21 Report were certifications pursuant to the
Sarbanes-Oxley Act of 2002 ("SOX") signed by Defendants Syngal and
O'Connell attesting to the accuracy of financial reporting, the
disclosure of any material changes to the Company's internal
control over financial reporting and the disclosure of all fraud.
On March 3, 2022, the Company issued a press release announcing its
financial results for the fourth quarter and fiscal year ended
January 29, 2022.
On March 15, 2022, the Company filed with the SEC its annual report
on Form 10-K for the year ended January 29, 2022 (the "2021 Annual
Report") which was signed by Defendants Syngal and O'Connell.
Attached to the 2021 Annual Report were certifications pursuant to
SOX signed by Defendants Syngal and O'Connell attesting to the
accuracy of financial reporting, the disclosure of any material
changes to the Company's internal control over financial reporting
and the disclosure of all fraud.
The statements were materially false and/or misleading because they
misrepresented and failed to disclose the following adverse facts
pertaining to the Company's business, operations, and prospects,
which were known to Defendants or recklessly disregarded by them.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that: there were execution missteps in
size and assortment at Old Navy related to BODEQUALITY which were
adversely impacting Old Navy's margins and financial results;
contrary to the Company's statements, there were inventory risks
relating to BODEQUALITY that were actually existing that were
adversely affecting the Company's operations; and as a result the
Company's statements during the Class Period about the historical
financial and operational metrics and purported market
opportunities did not accurately reflect the actual business,
operations, and financial results and trajectory of the Company,
and were materially false and misleading, and lacked a factual
basis.
Then on April 21, 2022, after market hours, the Company announced
that Nancy Green, CEO of Old Navy had stepped down. On this news,
Gap's stock price fell $2.57 per share, or 17%, to close at $11.72
per share on April 22, 2022, on unusually heavy trading volume,
damaging investors. On May 20, 2022, during market hours, The Wall
Street Journal published an article revealing that the Company had
improperly managed its inventory of plus size clothing at its Old
Navy stores causing material declines in margins and business
results. On this news, the Company's stock to fall 7% from closing
at $11.19 per share on May 19, 2022 to closing at $10.33 per share
on May 23, 2022, over the rest of trading May 20, 2022 and the next
full trading day of May 23, 2022.
On May 27, 2022, the Company filed with the SEC a form 10-Q for
period ended April 30, 2022. The 10-Q was signed and certified as
to their accuracy by Syngal and O'Connell. In the 10-Q, the Company
admitted that execution missteps in size and assortment of
inventory at Old Navy adversely impacted the Company's financial
results. On this news, Gap's stock price fell 4.9% to close at
$11.03 per share on May 31, 2022, further damaging investors. On
July 11, 2022, after market hours, the Company announced that
Syngal was stepping down from her position as President and CEO of
the Company, and resigned from the Board of Directors. On this
news, Gap's stock price fell 5% to close at $8.32 per share on July
12, 2022, further damaging investors, says the complaint.
The Plaintiff purchased Gap securities during the Class Period.
Gap operates as a global apparel retail company.[BN]
The Plaintiff is represented by:
Phillip Kim, Esq.
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Phone: (212) 686-1060
Fax: (212) 202-3827
Email: pkim@rosenlegal.com
lrosen@rosenlegal.com
GENERAL ELECTRIC: 3rd Cir. Affirms Summary Judgment in Somers Suit
------------------------------------------------------------------
In the case, BRUCE SOMERS, Individually and on behalf of all others
similarly situated, Appellant v. GENERAL ELECTRIC COMPANY, Case No.
22-1093 (3d Cir.), the U.S. Court of Appeals for the Third Circuit
affirms the district court's order granting GE's motion for summary
judgment.
Somers, a former employee of GE, sued GE claiming that he was owed
payment for unused vacation time under the terms of an employee
handbook that Somers contends is a contract. Somers worked for GE
Transportation at its Grove City, Pennsylvania facility from July
9, 1990, until Feb. 25, 2019, the date when Westinghouse Air Brake
Technologies Corp. ("Wabtec") acquired the business.
While at GE, Somers received vacation benefits consistent with the
terms of the "GE Your Benefits Handbook: Vacation and Other Time
Off." Somers accrued paid vacation benefits under what the Handbook
called the "Annual Vacation Allotment Method." He was allotted 200
hours in 2019. In connection with the acquisition of GE
Transportation, GE and Wabtec entered into an "Employee Matters
Agreement" that addressed, among other things, GE Transportation
employees' earned but unused vacation.
Before Wabtec completed its acquisition of GE Transportation,
Somers received a letter from Wabtec stating that it planned "to
offer employment to all GE Transportation employees who are
actively employed on the date that the transaction closes," subject
to the terms of the letter. The letter also said that "Wabtec
benefit plans" would be "similar in the aggregate to those provided
by GE, however not identical," with "paid time off and other
important terms of employment outlined in the attached pages." In
addition, the letter specifically noted that employees' "remaining
vacation days, holidays and personal illness time will not reset on
the date the transaction closes with Wabtec." Rather, "vacation,
holiday and personal illness time will renew on Jan. 1, 2020."
Somers accepted Wabtec's offer. On Feb. 25, 2019, after his
employment transitioned to Wabtec, Somers still had 184 hours of
vacation time available to him, and he used those remaining hours
before the end of the calendar year.
On April 6, 2020, Somers filed a putative class action in the Court
of Common Pleas of Allegheny County, Pennsylvania to recover for
unused vacation time from GE on behalf of himself and others who
previously worked for GE and then commenced employment with Wabtec.
The complaint contained three counts: breach of contract, violation
of the Pennsylvania Wage Payment and Collection Law ("WPCL"), 43
P.S. Section 260.1 et seq., and unjust enrichment.
GE removed the case to the U.S. District Court for the Western
District of Pennsylvania and answered the complaint. After
discovery, it filed a motion for summary judgment on all three of
Somers's claims.
A Magistrate Judge issued a Report and Recommendation, urging that
the motion for summary judgment be granted. With respect to the
breach of contract and WPCL claims, she suggested summary judgment
principally because the Handbook did not constitute a contract
under Pennsylvania law, due to its disclaimer language. With
respect to the unjust enrichment claim, she recommended summary
judgment because, even assuming GE was unjustly enriched, that
enrichment would have been at Wabtec's expense. The District Court
adopted the Report and Recommendation and granted summary judgment
in favor of GE. Somers has timely appealed.
The Third Circuit opines that Somers failed to raise a triable
issue that the Handbook constitutes a contract, so GE was entitled
to summary judgment on the breach of contract claim. It finds that
GE is entitled to summary judgment on Somers' breach of contract
claim because he has offered no evidence from which a jury could
conclude that the Handbook was offered as a contract.
In the absence of a contractual right to the wages or benefits, a
claim under Pennsylvania's WPCL fails as a matter of law. Thus, the
Third Circuit opines that GE was entitled to summary judgment on
Somers's WPCL claim for the same reason as on his breach of
contract claim: his failure to raise a triable issue that the
Handbook constitutes a contract.
Finally, the Third Circuit opines that GE was also entitled to
summary judgment on Somers' unjust enrichment claim, for two
reasons. First, Somers did not show that he suffered any injustice:
he received all the paid vacation Wabtec offered, and, for the
reasons already given, GE was not contractually obligated to him
with respect to his earlier unused vacation hours. Second, the
Third Circuit agrees with the District Court that, even assuming GE
"was unjustly enriched" because Wabtec paid for 184 hours of
Somers's vacation, GE would not owe that money to Somers it would
owe that money to Wabtec, who actually paid him.
For the foregoing reasons, the Third Circuit affirms the District
Court's grant of summary judgment to GE on all of Somers' claims.
A full-text copy of the Court's Nov. 30, 2022 Opinion is available
at https://tinyurl.com/5f2eu4bs from Leagle.com.
GRAMMER INC: Carmona Sues Over Failure to Pay Proper Overtime
-------------------------------------------------------------
LAWRENCE CARMONA, on behalf of himself and those similarly
situated, Plaintiff v. GRAMMER, INC., and TOLEDO MOLDINGS & DIE,
LLC, Defendants, Case No. 3:22-cv-02127-JZ (N.D Ohio, November 23,
2022) is a collective action complaint brought against the
Defendants for its alleged unlawful practices and policies that
violated the Fair Labor Standards Act.
The Plaintiff was employed by the Defendants as a manufacturing
employee in the position of machine operator and forklift operator
between September 2021 and October 2022.
According to the complaint, the Plaintiff and other similarly
situated manufacturing employees frequently worked more than 40
hours per week. Accordingly, they were also paid bonuses and/or
other remuneration for their hard work. However, the Defendants did
not include the incentives they received in their regular rate of
pay for purposes of calculating their overtime compensation. As a
result, despite working more than 40 hours per week, the Plaintiff
and other similarly situated employees were not paid proper
overtime compensation at the rate of one and one-half times their
regular rates of pay for all hours worked in excess of 40 per
workweek, says the suit.
The Plaintiff brings this complaint seeking to recover actual
damages for unpaid wages, for himself and all other similarly
situated manufacturing employees. The Plaintiff also seeks
liquidated damages equal in amount to the unpaid wages found due to
him and the classes, as well as pre- and post-judgment interest,
attorneys' fees, costs, and disbursements, and other further relief
as the Court deems just and proper.
Grammer, Inc. and Toledo Molding & Die, LLC manufacture and build
seating systems and interior components for automobiles and trucks.
[BN]
The Plaintiff is represented by:
Chastity L. Christy, Esq.
Anthony J. Lazzaro, Esq.
THE LAZZARO LAW FIRM, LLC
The Heritage Building, Suite 250
34555 Chagrin Boulevard
Moreland Hills, OH 44022
Tel: (216) 696-5000
Fax: (216) 696-7005
E-mail: chastity@lazzarofirm.com
anthony@lazzarolawfirm.com
GRAYSON AIR: Fails to Properly Pay OT Wages, Deakle et al. Claim
----------------------------------------------------------------
The case, CHASE DEAKLE and ROBERT STEPHENS, each individually and
on behalf of all others similarly situated, Plaintiffs v. GRAYSON
AIR CONDITIONING, INC., Defendant, Case No. 1:22-cv-00476 (S.D.
Ala., November 23, 2022) arises from the Defendant's alleged
unlawful pay practices that violated the overtime provisions of the
Fair Labor Standards Act.
The Plaintiffs were directly hired by the Defendant as hourly-paid
and non-exempt employees - Plaintiff Deakle as a Service Technician
from approximately June 2018 to September 2022, and Plaintiff
Stephens as an Installer from approximately May 2022 to August
2022.
The Plaintiffs claim that the Defendant gave them and other
similarly situated technicians and installers bonus on a regular
basis for each customer review they received for the Defendant.
Throughout their employment with the Defendant, they also regularly
or occasionally worked more than 40 hours per week. Although the
Defendant paid them overtime compensation at the rate of one and
one-half times their regular rates of pay for all hours worked in
excess of 40 per workweek, the Defendant failed to include the
bonuses that were paid to them in their regular rates of pay when
calculating their overtime, thereby failing to properly pay their
overtime compensation, added the Plaintiffs.
The Plaintiffs bring this complaint as a collective action to
recover damages for all unpaid overtime wages, for themselves and
other similarly situated Service Technicians and Installers, as
well as liquidated damages, reasonable attorney’s fee and all
costs incurred in this action, and other relief as the Court may
deem just and proper.
Air Conditioning, Inc. provides air conditioning services. [BN]
The Plaintiffs are represented by:
David A. Hughes, Esq.
HARDIN & HUGHES LLP
2121 14th Street
Tuscaloosa, AL 35401
Tel: (205) 523-0463
Fax: (205) 756-4463
E-mail: dhughes@hardinhughes.com
- and -
Laura Edmondson, Esq.
SANFORD LAW FIRM, PLLC
10800 Financial Center Parkway, Suite 510
Little Rock, AR 72211
Tel: (501) 221-0088
Fax: (888) 787-2040
E-mail: laura@sanfordlawfirm.com
INSTAGRAM LLC: Loses Bids to Dismiss Dangaard's Anti-SLAPP Claims
-----------------------------------------------------------------
In the case, DAWN DANGAARD, KELLY GILBERT, and JENNIFER ALLBAUGH,
Plaintiffs v. INSTAGRAM, LLC, FACEBOOK OPERATIONS, LLC, FENIX
INTERNET, LLC, FENIX INTERNATIONAL, LTD., META PLATFORMS, INC.,
LEONID RADVINSKY, and JOHN DOES 1-10, Defendants, Case No. C
22-01101 WHA (N.D. Cal.), Judge William Alsup of the U.S. District
Court for the Northern District of California:
a. denies the Defendants' motions to dismiss and strike the
claims under California's anti-SLAPP statute;
b. grants the Plaintiffs' motion for leave to amend the
complaint to include the whistleblower report (and the
related news article), Exhibits L and M; and
c. grants in part and denies in part the parties' motions to
seal and redact certain portions of the second amended
complaint and the briefing.
In this diversity and putative class action, the Plaintiffs claim
that the Defendants remain engaged in unfair competition and
tortious interference with contracts and business relationships.
The Plaintiffs are adult entertainment performers who use social
media to promote themselves. They place (or "post") links on social
media to adult entertainment websites. Those websites allow users
to watch their content for a price. The Plaintiffs split the
revenue with the website owners. Of importance in the case, the
Plaintiffs contract with competitors of the adult entertainment
website "OnlyFans."
Defendant Meta Platforms, Inc., owns and operates Defendants
Instagram and Facebook, LLC (collectively, "Meta Defendants"), who
operate Instagram and Facebook. John Does One through Ten were
employees of the Meta Defendants when the claims arose. Defendants
Fenix International, Ltd., Fenix Internet, LLC, and Leonid
Radvinsky (collectively, "Fenix Defendants") are associated with
OnlyFans. Radvinsky owns Fenix International, which operates
OnlyFans. Fenix International owns Fenix Internet -- which receives
payments from users of OnlyFans and distributes those payments to
OnlyFans content creators.
The Plaintiffs allege that the Fenix Defendants paid the Doe
Defendants to demote or delete the Plaintiffs' accounts and posts
on Instagram and Facebook. That conduct reduced internet traffic to
adult entertainment websites with which the Plaintiffs contract --
websites that compete with OnlyFans. The Defendants' actions,
thereby, reduced the Plaintiffs' viewership on adult entertainment
platforms and their revenue from adult content. The Defendants'
actions increased internet traffic to OnlyFans and swelled its
revenues.
The Plaintiffs, moreover, allege that the Doe Defendants demoted or
deleted their accounts and posts in a particular way. They refer to
this conduct as "blacklisting." Additionally, the Plaintiffs allege
Meta defendants share their lists of terrorists with other social
media platforms via the "Global Internet Forum to Counter Terrorism
Shared Hash Database." For that reason, they allege their content
was also demoted or removed from other social media platforms.
The Plaintiffs contend the Doe Defendants' actions constitute
unfair competition and tortious interference with their contracts
and business relationships (with competitors of OnlyFans). They
seek to hold the Meta Defendants vicariously liable for the actions
of the Doe Defendants. And, the Plaintiffs contend the Fenix
Defendants are liable under a theory of civil conspiracy.
Previously, the Meta Defendants moved to dismiss all claims under
FRCP 12(b)(6) and California's anti-SLAPP statute. The Fenix
Defendants moved to dismiss all claims under FRCP 12(b)(2), FRCP
9(b), and on other grounds. At the hearing on the motions on Sept.
8, 2022, the Plaintiffs revealed that they had the benefit of
information outside the pleadings that may support their claims.
For that reason, the district court ordered the Plaintiffs to file
a second amended complaint, pleading as much cure as possible. It
ordered the Defendants to re-brief their motions based on the new
complaint. The Fenix Defendants' FRCP 12(b)(2) motion, however, was
held in abeyance pending jurisdictional discovery.
Now, all the Defendants move to dismiss the second amended
complaint under FRCP 12(b)(6). The Meta Defendants again move to
strike the claims under California's anti-SLAPP statute. The Fenix
Defendants have not revived their FRCP 9(b) motion.
Initially, Judge Alsup holds that the Plaintiffs' claims are
plausible. To the extent the Defendants argue that the Plaintiffs'
factual allegations are unreliable, that will be tested in
discovery. On a motion to dismiss, all well-pled facts are accepted
as true. He says the Plaintiffs' allegations are sufficient to
state plausible claims for relief.
First, the Plaintiffs provide an email that purports to show
several wire transfers from the Fenix Defendants to the Meta
Defendants. Second, the complaint contains graphs depicting changes
in traffic for OnlyFans and numerous competitors of OnlyFans.
Third, the Plaintiffs' second amended complaint refers to a
Facebook whistleblower report that corroborates the claims. Fourth,
the Plaintiffs have sufficiently pled damages. Fifth, the
Plaintiffs have pled actionable harm to competition. Sixth, the
Plaintiffs' claims against the Radvinsky are plausible.
Next, Judge Alsup holds that the Communications Decency Act (CDA)
does not bar the Plaintiffs' claims against the Meta Defendants.
Subsection (c)(1) only protects from liability (1) a provider or
user of an interactive computer service (2) whom a plaintiff seeks
to treat as a publisher or speaker (3) of information provided by
another information content provider. A provider of an interactive
computer service cannot meet the third element when it is "also an
'information content provider,' which is defined as someone who is
'responsible, in whole or in part, for the creation or development
of' the offending content."
First, the Meta Defendants certainly provide interactive computer
services because they "provide or enable computer access by
multiple users to a computer server" via the Facebook and Instagram
social media platforms. Similarly, they are not entitled to CDA
immunity for operation of their filtering system. Second, the
policy outlined in the CDA itself weighs heavily against
application of the Act. To approve the Meta Defendants' CDA defense
would make Section 230(c)(1) a backdoor to CDA immunity -- contrary
to the CDA's history and purpose. Thus, congressional policy weighs
heavily against the Meta Defendants' CDA defense.
Judge Alsup further holds that the Plaintiffs' claims withstand the
Meta Defendants' First Amendment defense. He finds that the First
Amendment does not shield the Meta Defendants from liability for
anticompetitive suppression of speech. As discussed, they are
allegedly removing posts and accounts linked to all adult
entertainment websites except for OnlyFans. If that is true, then
the Meta Defendants are helping OnlyFans to achieve an unlawful
monopoly in the online adult entertainment business.
Judge Alsup also holds that the Meta Defendants are vicariously
liable for the acts of their employees who allegedly participated
in the anticompetitive conduct. He finds that it is premature to
conclude that those accepting bribes were involved in a frolic of
their own so as to immunize Meta itself.
Finally, Judge Alsup holds that the Plaintiffs' motion is denied as
to paragraphs 74 and 75 of the second amended complaint. He also
holds that redaction is appropriate as to Exhibit D which contains
bank account information, details of wire transfers from Fenix
International to Meta employees, and the names of Meta employees.
All but the last four digits of each account number will be
redacted, and the name of the minor referenced therein will be
redacted. All other information will be made available to the
public. The same will apply to (i) the remaining exhibits and
paragraphs in the second amended complaint and (ii) the information
in the Defendants' briefs.
For the foregoing reasons, Judge Alsup denies the motions to
dismiss and strike. He grants the Plaintiffs' motion for leave to
amend the complaint to include the whistleblower report (and the
related news article), Exhibits L and M. He grants in part and
denies in part the parties' motions to seal.
A full-text copy of the Court's Nov. 30, 2022 Order is available at
https://tinyurl.com/yckkbbhm from Leagle.com.
J&M PLATING: Appeals Court Flips Summary Judgment in Mora BIPA Suit
-------------------------------------------------------------------
In the case, TRINIDAD MORA, Individually and On Behalf of All
Individuals Similarly Situated, Plaintiff-Appellant v. J&M PLATING,
INC., Defendant-Appellee, Case No. 2-21-0692 (Ill. App.), the
Appellate Court of Illinois, Second District, reverses the trial
court's order granting the Defendant's motion for summary
judgment.
Mora sued the Defendant, asserting that it violated the Biometric
Information Privacy Act (740 ILCS 14/1 et seq.) by failing to
establish a retention-and-destruction schedule for the possession
of biometric identifiers and biometric information until four years
after it first possessed her biometric data.
More began working for the Defendant on July 2, 2014, and began
clocking into her job via fingerprint scan in September 2014. In
May 2018, the Defendant established a written
retention-and-destruction schedule for biometric data, and, on May
22, 2018, the Plaintiff signed the Defendant's policy and consented
to the collection and use of her biometric data. The Plaintiff's
employment was terminated on Jan. 7, 2021, and, pursuant to the
Defendant's retention-and-destruction schedule, her biometric
information was destroyed approximately two weeks after her
termination.
On Feb. 16, 2021, the Plaintiff filed a class-action complaint
against the Defendant, alleging violations of sections 15(a) and
15(b) of the Biometric Act. She asserted that the Defendant
required employees to "clock in" with their fingerprints and that
it collected, stored, and used employee fingerprints and associated
personally identifying information without first providing notice,
obtaining informed consent, or, as relevant to this appeal,
publishing a data retention-and-destruction schedule.
In count I, the Plaintiff sought declaratory and injunctive relief
and damages for its alleged violation of section 15(a) (failure to
institute, maintain, and adhere to publicly available retention
schedule). In count II, she sought damages for alleged violations
of section 15(b) (failure to obtain informed written consent and
release before obtaining biometric data). The Plaintiff argued that
the Defendant invaded his statutorily protected right to privacy in
his biometric data, never adequately informed her or the class of
its biometric collection practices, never obtained the requisite
written consent from her or the class regarding her practices, and
never provided to them any retention-and-destruction schedule.
On April 28, 2021, the Defendant moved to dismiss the Plaintiff's
complaint (735 ILCS 5/2-619(a)(5), (9)), asserting that it
instituted a biometric information privacy policy, the Plaintiff
signed its policy, he consented to the collection and use of his
biometric data, his employment was terminated, and, pursuant to the
Defendant's written retention-and-destruction schedule, her
biometric data was destroyed upon her termination. Thus, count I
was defeated because the Plaintiff's information was destroyed upon
his termination, the statute of limitations barred her section
15(b) claim (count II), and his claim was barred by the Workers'
Compensation Act.
On July 14, 2021, the trial court dismissed count II of the
Plaintiff's complaint, finding that the cause of action under
section 15(b) of the Biometric Act accrued in September 2014 and
that a five-year limitations period applied. Thus, the claim was
time-barred. As to count I, the section 15(a) claim at issue in
this appeal, the court denied the Defendant's motion to dismiss. It
determined that the Defendant's motion raised fact-based arguments
properly resolved in a summary-judgment motion.
On Sept. 30, 2021, the Defendant moved for summary judgment on
count I of the Plaintiff's complaint, arguing that her biometric
data was destroyed two weeks after her last day of work and, thus,
she could not establish a violation of section 15(a) of the
Biometric Act. The Plaintiff responded that the Defendant waited
nearly four years after it began possessing biometric data to
establish a retention-and-destruction schedule and that this did
not comply with the statute.
The trial court granted the Defendant's motion, finding that the
statute contains no timing language and is written as if the
private entity is already in possession of biometric identifiers
and information. It determined that the Defendant had a
retention-and-destruction schedule, obtained the Plaintiff's
consent, and her data was destroyed shortly after her employment
was terminated. Thus, "there's no harm. They ultimately did comply.
There is no timing language in the statute."
The Plaintiff appeals arguing that the trial court erred in
granting the Defendant summary judgment on his section 15(a) claim,
because the Biometric Act required the Defendant to establish a
retention-and-destruction schedule for biometric data prior to its
possession of such data, or, alternatively, at the moment of
possession or within a reasonable time thereafter. The Defendant's
establishment of a schedule four years after the fact (i.e., after
the Defendant began collecting the Plaintiff's biometric data), the
Plaintiff asserts, did not comply with the Biometric Act, and any
contrary conclusion strips the statute of any enforceability.
The Appellate Court agrees that the trial court erred in granting
the Defendant summary judgment and concludes that the Biometric Act
requires a private entity such as the Defendant to develop a
retention-and-destruction schedule upon possession of biometric
data. It opines that the Defendant's establishment of a
retention-and-destruction schedule four years after it first
possessed such data for the Plaintiff violated section 15(a).
The trial court erred in finding that, because the Plaintiff
sustained "no harm," there could not be a violation of the
Biometric Act. This is contrary to the Supreme Court's
interpretation of the statute. In Rosenbach v. Six Flags
Entertainment Corp., 2019 IL 123186, the supreme court held that "a
person need not have sustained actual damage beyond violation of
his or her rights under the Biometric Act in order to bring an
action under it; that is, the violation, in itself, is sufficient
to support the individual's or customer's statutory cause of
action."
In the case, the Defendant began collecting the Plaintiff's
biometric data in September 2014, and this triggered its obligation
under section 15(a) to develop a retention-and-destruction
schedule. The Defendant did not have a schedule in place until May
2018, or nearly four years later. Thus, it violated section 15(a).
For these reasons, the Appellate Court reverses the judgment of the
circuit court of Winnebago County and remands the cause for further
proceedings consistent with its decision.
A full-text copy of the Court's Nov. 30, 2022 Opinion is available
at https://tinyurl.com/hmxh9at2 from Leagle.com.
Carl V. Malmstrom -- malmstrom@whafh.com -- of Wolf Haldenstein
Adler Freeman & Herz LLC, of Chicago, and Max S. Roberts --
mroberts@bursor.com -- (pro hac vice), of Bursor & Fisher, P.A., of
New York, New York, for the Appellant.
Joshua G. Vincent -- jvincent@hinshawlaw.com -- Michael F. Iasparro
-- miasparro@hinshawlaw.com -- and Stephen D. Mehr --
smehr@hinshawlaw.com -- of Hinshaw & Culbertson LLP, of Chicago,
for the Appellee.
LEHIGH UNIVERSITY: Scheyer Appeals ADA Suit Dismissal to 3rd Cir.
-----------------------------------------------------------------
DARCY LYNN SCHEYER is taking an appeal from a court order
dismissing her lawsuit entitled Darcy Lynn Scheyer, individually
and on behalf of all others similarly situated, Plaintiff, v.
Lehigh University, et al., Defendants, Case No. 5-20-cv-00322, in
the U.S. District Court for the Eastern District of Pennsylvania.
As previously reported in the Class Action Reporter, the Plaintiff
filed this lawsuit against the Defendants for violation of the
Americans with Disabilities Act.
On Mar. 16, 2020, the Plaintiff filed an amended complaint, which
Defendant Bethlehem Area School District moved to dismiss for
failure to state a claim on Apr. 24, 2020.
On June 19, 2020, Defendant St. Luke's Health Network filed a first
motion to dismiss amended complaint, which the Court granted
through an Order entered by Judge John M. Younge on Oct. 3, 2022.
The appellate case is captioned Darcy Scheyer v. Lehigh University,
et al., Case No. 22-3236, in the United States Court of Appeals for
the Third Circuit, filed on November 29, 2022. [BN]
Plaintiff-Appellant DARCY LYNN SCHEYER, individually and on behalf
of all others similarly situated, appears pro se.
Defendants-Appellees LEHIGH UNIVERSITY, et al., are represented
by:
Carolyn A. Pellegrini, Esq.
SAUL EWING
1500 Market Street
Centre Square West, 38th Floor
Philadelphia, PA 19102
Telephone: (215) 972-7121
- and -
John E. Freund, III, Esq.
KING SPRY HERMAN FREUND & FAUL
One West Broad Street, Suite 700
Bethlehem, PA 18018
Telephone: (610) 332-0390
- and -
Nancy Conrad, Esq.
WHITE & WILLIAMS
3701 Corporate Parkway, Suite 300
Center Valley, PA 18034
Telephone: (610) 782-4909
MAC COSMETICS: N.D. California Remands Maciel Suit to State Court
-----------------------------------------------------------------
Judge Jacqueline Scott Corley of the U.S. District Court for the
Northern District of California grants the Plaintiffs' motion to
remand the case, IGNACIO MACIEL, et al., Plaintiffs v. M.A.C.
COSMETICS, INC., Defendant, Case No. 22-cv-03885-JSC (N.D. Cal.),
to the state court.
Ignacio Maciel and Ruth Torres bring a putative class action
against MAC for violations of the California Labor Code and
California's Unfair Competition Law. The Plaintiffs allege MAC did
not reimburse its employees for necessary work-related
expenditures.
MAC, a major makeup company incorporated under the laws of the
state of Delaware with its principal place of business in New York,
hired the Plaintiffs as retail employees in California for MAC's
brick-and-mortar stores. Maciel worked for MAC from approximately
2015 to July 2021. Torres worked for MAC from approximately 2016 to
2020. The Plaintiffs bring two claims on behalf of themselves and a
putative class under California law.
The Plaintiffs worked as retail employees for MAC. As retail
employees, MAC expected them to meet a fashion-forward image to
represent the MAC brand to consumers and the general public. To
meet these expectations, the Plaintiffs must purchase makeup from
MAC and clothing from other retailers to do their jobs. If they do
not meet these image expectations, they are subject to reprimand
and/or termination for not conforming to MAC image expectations.
MAC has a "policy and practice" where it does not reimburse
employees for these makeup and clothing expenses.
The Plaintiffs allege MAC's failure to reimburse them and the
putative class for necessary business expenditures violates
California Labor Code Section 2800. They also allege this same
conduct violates California's Unfair Competition Law. Cal. Bus. &
Prof. Code Section 17200.
MAC removed the case to the Northern District of California
pursuant to the Class Action Fairness Act (CAFA) and the Plaintiffs
subsequently moved to remand the case to state court. That motion
is now pending before the Court.
Judge Corley states that CAFA gives federal district courts
original jurisdiction over class actions in which the class members
number at least 100, at least one plaintiff is diverse in
citizenship from any defendant, and the aggregate amount in
controversy exceeds $5 million, exclusive of interest and costs.
She says CAFA's provisions should be read broadly, with a strong
preference that interstate class actions should be heard in federal
court if properly removed by any defendant.
In the case, two out of three of CAFA's jurisdictional requirements
are met and uncontested. First, the size of the putative class
exceeds 100 people. Second, there is minimal diversity of
citizenship: Maciel is a citizen of California and MAC is organized
under the laws of Delaware and has its principal place of business
in New York. The parties contest the third requirement -- whether
the aggregate amount in controversy exceeds $5 million, exclusive
of interest and costs.
Judge Corley holds that MAC has not met its burden. On the record
before the Court, the preponderance of evidence does not support a
"possible" amount in controversy exceeding $5 million. In summary,
he adopts the following assumptions in the calculation of the
amount in controversy:
a. The putative class consists of 2,800 people who worked a
total of at least 54,827 months.
b. The putative class consists of 70% women and 30% men.
c. The putative class members each purchased one clothing item
per month.
d. Each putative class member purchased a MAC cosmetic product
for a promotional event every three weeks, totaling 78,324.2 MAC
products purchased by the putative class.
e. The average cost of each MAC product purchased was $27.
f. The average cost of an item of women's clothing was
$35.63.
g. The average cost of an item of men's clothing was $36.25.
Therefore, the preponderance of the evidence shows it is possible
the maximum amount in controversy is $4,078,437.24, which is not
greater than the $5 million floor CAFA sets for the Court's
jurisdiction, and MAC has not met its burden to defeat remand.
Judge Corley concludes that the Plaintiffs' motion to remand argues
that there is a strong presumption against the exercise of removal
jurisdiction and that doubts as to removability are resolved in
favor of remanding the case to the state court. The Plaintiffs are
incorrect. No antiremoval presumption attends cases invoking CAFA.
Nonetheless, applying the correct legal standard, MAC has not
satisfied its burden to demonstrate by a preponderance of the
evidence that the possible aggregate amount in controversy exceeds
$5 million. Therefore, the motion to remand is granted.
A full-text copy of the Court's Nov. 30, 2022 Order is available at
https://tinyurl.com/fnrj4m9p from Leagle.com.
MATCH GROUP: Randle Suit Removed to N.D. Ill.
---------------------------------------------
The case styled BRIA RANDLE, VANESSA GUSMAN, KASIE SEDWICK, NICOLE
DEMONTE, AINSLEY JACOBSON, and BRANDY LUKER, individually and on
behalf of all others similarly situated, Plaintiffs v. MATCH GROUP,
INC., MATCH GROUP, LLC, and TINDER, INC., Defendants, Case No.
2022CH0980, was removed from the Circuit Court of Cook County,
Illinois, to the United States District Court for the Northern
District of Illinois, Eastern Division on November 18, 2022.
The Clerk of Court for the Northern District of Illinois assigned
Case No. 1:22-cv-06632 to the proceeding.
The Plaintiffs brought this complaint from Defendants' alleged
violations of the Illinois Biometric Privacy Act. They assert that
they are users of Defendants' online dating services, and
particularly, the Tinder app, claiming that, since 2020, Defendants
collected and retained their biometric facial identifiers through
"Photo Verification" and "Liveness Check" features present within
the Tinder app. The Plaintiffs further contend that Defendants
stored their biometric facial identifiers in a database without an
appropriate data retention policy in place, and without their
informed consent.
Match Group, Inc. is an American Internet and technology company
headquartered in Dallas, Texas. It owns and operates largest global
portfolio of popular online dating services.[BN]
The Defendants are represented by:
Daniel S. Saeedi, Esq.
Rachel L. Schaller, Esq.
TAFT STETTINIUS & HOLLISTER LLP
111 East Wacker Drive, Suite 2600
Chicago, IL 60601
Telephone: (312) 527-4000
E-mail: dsaeedi@taftlaw.com
rschaller@taftlaw.com
- and -
Stephen A. Broome, Esq.
QUINN EMANUEL URQUHART & SULLIVAN LLP
865 S. Figueroa St., 10th Floor
Los Angeles, CA 90405
Telephone: (213) 443-3000
E-mail: stephenbroome@quinnemanuel.com
MEDTRONIC PLC: Robbins Geller Named Lead Counsel in Fund Suit
-------------------------------------------------------------
In the case, Trustees of the Welfare and Pension Funds of Local
464A - Pension Fund, Trustees of the Local 464A United Food &
Commercial Workers' Union Welfare Service Benefit Fund, and
Trustees of the New York-New Jersey Amalgamated Pension Plan for
ACME Employees, Individually and on Behalf of All Others Similarly
Situated, Plaintiffs v. Medtronic PLC, Omar Ishrak, Geoffrey S.
Martha, Karen L. Parkhill, and Sean Salmon, Defendants, Case No.
22-CV-02197 (KMM/JFD) (D. Minn.), Magistrate Judge John F. Docherty
of the U.S. District Court for the District of Minnesota grants
Movant Phoenix Insurance Company Ltd. and Phoenix Provident Pension
Fund Ltd.'s Motion for Appointment as Lead Plaintiff and Approval
of Lead Plaintiff's Selection of Counsel.
Judge Docherty has reviewed Phoenix's motion and supporting
documents and finds that it has satisfied the statutory
requirements for lead plaintiff and lead counsel under the Private
Securities Litigation Reform Act (PSLRA). He says Phoenix has made
a prima facie showing that it should be appointed lead plaintiff.
Phoenix made a timely motion to be appointed lead plaintiff and no
Plaintiffs oppose its motion. Its alleged losses exceed $15
million. Phoenix's claims are typical of the claims of the members
of the purported plaintiff class as set out in the complaint.
Further, Judge Docherty finds that Phoenix will adequately
represent the purported plaintiff class. It is a sophisticated
institutional investor, discloses no conflicts between its own
interests and those of other purported class members, alleges
losses significant enough to motivate it to litigate this case
diligently, and proposes the appointment of competent, experienced,
securities class action counsel to help it do so.
Accordingly, Judge Docherty grants the unopposed Motion. Pursuant
to the PSLRA, 15 U.S.C. Section 78u-4(a)(3)(B), The Phoenix
Insurance Company Ltd. and The Phoenix Provident Pension Fund Ltd.
are appointed as the Lead Plaintiff and their selection of Robbins
Geller Rudman & Dowd LLP as the Lead Counsel and Zimmerman Reed LLP
as the Local Counsel is approved.
Phoenix will promptly meet and confer regarding a schedule for the
filing of an amended complaint, and a briefing schedule for
Defendants' anticipated motion to dismiss. The parties were to
submit a joint stipulation with a proposed schedule on Dec. 12,
2022.
A full-text copy of the Court's Nov. 30, 2022 Order is available at
https://tinyurl.com/yrjarff6 from Leagle.com.
MIAMI, FL: Klugh Sues Over Parking Tax Surcharge
------------------------------------------------
Richard Klugh, Sara Wolfe, and Josh Kaiser, individually and on
behalf of all others similarly situated v. THE CITY OF MIAMI, Case
No. 159894221 (Fla. 11th Judicial Cir. Ct., Miami-Dade Cty., Oct.
26, 2022), is brought raising a facial constitutional challenge to
a City of Miami Ordinance and the related City regulations that
impose a parking tax.
In 2004, the City enacted the City of Miami Parking Facilities
Surcharge Ordinance ("Parking Ordinance"), imposing and collecting
a fifteen percent "surcharge" on virtually all commercial parking
transactions in garages and surface lots within the City, including
privately-owned garages and lots.
This surcharge – i.e., a parking tax – affects ordinary
citizens of Miami and visitors every day: employees who work in
Downtown Miami, patrons who visit retail stores in the Midtown,
Bayside Marketplace, and Coconut Grove shopping areas, patients who
receive medical treatment at Jackson Memorial Hospital, diners who
eat at restaurants on Brickell Avenue, and the like. This parking
tax has yielded hundreds of millions of dollars in tax revenue for
the City over the past eighteen years.
Since as early as 2017, however, the City no longer satisfied a
necessary legal precondition for imposing and collecting a parking
tax under the state enabling legislation. Without legislative
authority for the imposition and collection of a parking tax, the
Parking Ordinance violates Art. Accordingly, tens of millions of
dollars in parking tax revenue collected within the limitations
period must now be refunded. And the City must be enjoined from
enforcing the Parking Ordinance and collecting the unconstitutional
parking tax. That is what this class action lawsuit is About, says
the complaint.
The Plaintiffs are who were assessed and paid the Parking Tax.
City of Miami is a Florida municipality.[BN]
The Plaintiffs are represented by:
Stuart Z. Grossman, Esq.
Rachel Wagner Furst, Esq.
Alex-Arteaga-Gomez, Esq.
GROSSMAN ROTH YAFFA COHEN, P.A.
2525 Ponce de Leon Blvd., Suite 1150
Coral Gables, FL 33134
Phone: (305) 442-8666
Fax: (305) 285-1668
Email: szg@grossmanroth.com
rwf@grossmanroth.com
aag@grossmanroth.com
MICHAEL ISABELLA: Court Grants Delcid's Bid for Equitable Tolling
-----------------------------------------------------------------
In the case, LUCAS DELCID, et al., Plaintiffs v. MICHAEL ISABELLA,
et al., Defendants, Civil Action MJM-20-3167 (D. Md.), Magistrate
Judge Matthew J. Maddox of the U.S. District Court for the District
of Maryland grants the Plaintiffs' Motion for Equitable Tolling.
Plaintiffs Lucas Delcid, Danielle Harris, and Milena Radulovic
commenced this civil action alleging that Michael Isabella,
Johannes Allender, Taha Ismail, and Dhiandra Olson unlawfully
withheld wages in violation of the Fair Labor Standards Act, 29
U.S.C. Sections 201 et seq. ("FLSA"), the District of Columbia
Minimum Wage Act Revision Act, D.C. Code Sections 32-1001 et seq.
("DCMWA"), and the District of Columbia Wage Payment and Collection
Law, D.C. Code Sectiosn 32-1301 et seq. ("DCWPCL"). The Plaintiffs
both sued in their individual capacities and sought to represent a
group of similarly situated employees in a FLSA collective action
pursuant to 29 U.S.C. Section 216(b) and a class action for the
state law claims pursuant to Fed. R. Civ. P. 23.
The Plaintiffs filed the Complaint on Oct. 30, 2020, and the
summons were issued on Nov. 2, 2020. Isabella and Allender were
promptly served. On Jan. 8, 2021, after a few failed attempts to
serve Ismail and Olson, the Plaintiffs filed a motion seeking to
effect service on Ismail and Olson by alternative means and
requesting additional time to serve process.
On June 4, 2021, Judge Theodore D. Chuang granted the motion and
instructed the Plaintiffs to serve process on Ismail and Olson by
sending a copy of the summons, Complaint, civil information sheet,
and the Court's Order by first-class mail to each Defendant's
address and by posting these documents on their doors in 30 days.
Specifically, Judge Chuang found that the Plaintiffs had made good
faith efforts to serve Ismail and Olson pursuant to Maryland Rule
2-121(a), but these Defendants had evaded service. Over seven
months after the Complaint was filed, Olson and Ismail were served
on June 9 and 14, 2021, respectively.
On July 2, 2021, the Plaintiffs filed the Motion for Conditional
Collective Action Certification and Court-Facilitated Notice
("Collective Action and Notice Motion") seeking conditional
collective action certification of their FLSA claims and requesting
the Court to facilitate the issuance of notice to all potential
collective action members. Briefing on the motion concluded on July
30, 2021.
The Plaintiffs state that while the motion was pending, they
engaged in substantial efforts to identify other members of the
conditional collective action absent court-facilitated notice. In
October 2021, they also requested that the Defendants agree to toll
the FLSA statute of limitations period for six months, but the
Defendants did not respond.
On Nov. 2, 2021, Judge Charles B. Day directed the Defendants to
file a response to the relief the Plaintiffs had requested, but the
Defendants failed to comply with that Order. On Feb. 10, 2022,
Judge Day granted the Collective Action and Notice Motion.
The Plaintiffs subsequently filed the Motion for Equitable Tolling
seeking to toll the statute of limitations for all unnamed members
of the conditional collective action from at least July 2, 2021,
the date on which the Collective Action and Notice Motion was
filed, until Feb. 10, 2022, the date on which the motion was
granted.
Judge Maddox finds that the Plaintiffs requests the granting of
equitable tolling for roughly seven-month period during which their
motion for conditional certification of a collective action was
pending. He finds that none of the Defendants weighed in on this
issue. It is not clear that the case was significantly affected by
the COVID-19 public health crisis.
Olson and Ismail's conduct in evading service caused significant
delay as the Plaintiffs had to engage in unnecessary motion
practice for months to effect service on Ismail and Olson by
alternative means. Absent such delay, which was outside the control
of the Plaintiffs or putative collective action members, Judge
Maddox says the Plaintiffs could have sought conditional collective
action certification and court-facilitated notice several months
earlier. The Plaintiffs should not be penalized for the delays;
therefore, equitable tolling is appropriate.
For the foregoing reasons, Judge Maddox grants the Plaintiffs'
Motion for Equitable Tolling.
A full-text copy of the Court's Nov. 30, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/2s4fcfz6 from
Leagle.com.
NEW YORK, NY: EMS Unions File Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against City of New York. The
case is styled as Local 2507, Uniformed EMTs, Paramedics & Fire
Inspectors, Local 3621, EMS Officers Union, NYC EMS Superior
Officers Association, individually and on behalf of its current and
former members; Tonya Boyd, Christell Cadet, Mark Carrasquillo,
Lizette Claro, Beverly Cobb, Ali Coutard, Sencia Datilus, Laitrice
Edwards, Alicia Elkadi, Ronald Floyd, Kahlia Graham, Richard
Guzman, Maggie Hope, Jasmin Howard, Angela Jones, Ravivarman
Kailayanathan, Melanie Moreno-Ketchum, Jenelle Pierre, Simone
Quashi, Jason Saffon, Allison Shaughnessy, Laura Torres, Andre
Valdez, Lance Winfield, Ronald Wolfe, Marylou Aurrichio, on behalf
of themselves and all other similarly-situated individuals v. City
of New York, on behalf of the Fire Department of the City of New
York, Case No. 1:22-cv-10336-AT (S.D.N.Y., Dec. 6, 2022).
The nature of suit is stated as Jobs Civil Rights for Job
Discrimination (Unlawful Employment Practices).
New York City -- https://www.nyc.gov/ -- comprises 5 boroughs
sitting where the Hudson River meets the Atlantic Ocean.[BN]
The Plaintiff is represented by:
Erica Tracy Kagan, Esq.
Yetta G. Kurland, Esq.
THE KURLAND GROUP
85 Broad Street, 28th Floor
New York, NY 10004
Phone: (212) 253-6911
Fax: (212)-614-2532
Email: kagan@kurlandgroup.com
kurland@kurlandgroup.com
NORTHWEST MOTORSPORT: Class Cert Deadlines Extended to Dec. 14
--------------------------------------------------------------
In the class action lawsuit captioned as SETH VILLAFAN, et al., v.
NORTHWEST MOTORSPORT, LLC, et al., Case No. 2:20-cv-01616-TSZ (W.D.
Wash.), the Hon. Judge Thomas S. Zilly entered an order granting in
part the stipulated motion for the Extension of the deadline for
filing motions related to class certification.
The Court extends the deadline to file motions relating to class
certification until December 14, 2022. The Court will not grant
another extension.
The Defendants include NORTWEST MOTORSPORT, LLC, a Washington
limited liability company; HILT VENTURE CAP INC., a Washington
limited liability company; DONALD FLEMING and JANE DOE FLEMING,
residents of Texas, and the marital community composed thereof;
NORTHWEST MOTOSPORT, INC., a Washington limited liability
company; RICHARD FORD and JANE FORD, residents of Texas, and the
marital community composed thereof; RFJ AUTO PARTNERS NORTHERN
HOLDINGS, INC., a Delaware corporation; JOHN and JANE DOES 1-5 and
the marital communities composed thereof; and RFJ AUTO GROUP, INC.,
a foreign corporation.
Northwest Motorsport was founded in 1996. The company's line of
business includes the retail sale of used cars.
A copy of the Court's order dated Dec. 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3P0WumZ at no extra charge.[CC]
OAKLAND COUNTY, MI: $940K Class Deal in Dover Suit Wins Final Nod
-----------------------------------------------------------------
In the case, DOVER GLEN CONDOMINIUM ASSOCIATION, on behalf of
themselves and others similarly situated, Plaintiff v. OAKLAND
COUNTY, a Government Unit, Defendant, Civil Case No. 22-11468 (E.D.
Mich.), Judge Linda V. Parker of the U.S. District Court for the
Eastern District of Michigan, Southern Division, grants the
Plaintiff's Unopposed Motion for Final Approval of Class
Settlement, Enhancement Awards to Class Representatives and
Attorneys' Fees and Costs.
The lawsuit is a diversity action under the Class Action Fairness
Act ("CAFA"). On June 29, 2022, the Plaintiff, on behalf of a class
of individuals, filed the class action under Michigan's
Constitution, the Fifth Amendment Takings Clause, and the
Fourteenth Amendment's Procedural and Substantive Due Process
Clauses alleging that Oakland County foreclosed on its property and
kept the "surplus funds" of the foreclosure sale.
The Plaintiff operated condominiums in Madison Heights, Michigan.
Occasionally, it assessed and collected dues and other charges owed
by its residents. When residents failed to pay the charges, the
Plaintiff recorded liens on the properties. On May 3, 2017, the
Plaintiff filed and recorded a lien with the Oakland County
Register of Deeds against a property located at 266 East 13 Mile
Road, Apartment 22, Madison Heights, Michigan, 48071 (the
"Condo").
At the time of the tax foreclosure on the Condo, the Plaintiff
states that it had an interest in the Condo in the form of a
recorded lien in the amount of $3,957. Additionally, at the time of
the foreclosure, the owners of the Condo owed approximately
$4,753.88 (the "Owed Amount") to the Defendant for delinquent
taxes, interests, penalties, and fees related to the foreclosure
and sale of the Condo. Following the foreclosure, the Treasurer
directed that the Condo be sold at auction.
On Aug. 7, 2017, the Treasurer, on behalf of the Defendant, deeded
the Condo to a third party and received net proceeds of $40,000
from the sale. According to the Plaintiff, the net amount received
from the Defendant's auction sale of the Condo exceeded the Owed
Amount by at least 43,246.12. The Defendant retained the Surplus
Proceeds, and they were deposited into its General Fund account.
On June 29, 2022, the Plaintiff filed this lawsuit on behalf of the
following class: All persons or entities who recorded liens with
the Oakland County Register of Deeds in which surplus proceeds were
generated from tax foreclosure sales during the class period
In the Complaint, the Plaintiff alleges that the Defendant's
retention of the Surplus Proceeds violates federal and Michigan
law, and in light of the 2020 Michigan Supreme Court decision in
Rafaeli, LLC v. Oakland County, the Plaintiff is entitled to the
Surplus Proceeds.
The settlement comprises a full class-wide release of claims and
dismissal of the action in exchange for $940,000. The parties
represented to the Court that all class members have been
identified by the Oakland County Register of Deeds' records.
Further, parties mailed a notice to each member who was eligible to
receive net settlement funds, which yielded approximately 19 claims
being filed, and no objections.
The parties represented that there was a lack of information
related to the balance owed on the debts based on the recorded
liens. To solve this issue, the class members were provided a short
claims form, which asked them numerous questions, including the
following: "What was the initial lien amount against the property;"
"Please state the current balance owing on the debt;" and "Do you
have any payment records on the debt, or confirm they do not exist
or currently not in your possession."
The parties provided that 21 days after the close of the claims
period, the settlement administrator would complete a Claim
Qualifying and Adjusting Process for the claim forms. Claims that
qualify to receive payment will be those with timely completed
forms. The parties also decided to separate claims between "Bank
Pool Claims" and "Non-Bank Pool Claims," with the purpose of
"treating non-financial institutions who did not retain payment
records more fairly."
The assumption is that financial institutions generally keep
records of payments where non-financial institutions may not, so
this would protect them from disqualification. Payments to the
class members will be calculated using an Adjusted Payment Value
Formula. This provides a pro rata allocation to class members, with
no reversion of funds to the Defendant. Further, any remaining
funds, which include settlement checks that go uncashed after 180
days, will be paid to the Oakland Livingston Human Services
Association. Finally, parties note that the time for class members
to file their claim remains open until Jan. 19, 2023.
On July 12, 2022, the Plaintiff filed a "Motion and Memorandum of
Law in Support of Preliminary Approval of: Proposed Class Action
Settlement; Notice and Notice Plan; and Attorney Fee Expense
Award." The Court granted preliminary approval of the Settlement
Agreement on Sept. 30, 2022.
On Nov. 22, 2022, the Court held a Fairness Hearing, and on the
same day, the Plaintiff filed its "Plaintiff's Unopposed Motion for
Final Approval of Class Settlement, Enhancement Awards to Class
Representatives and Attorneys' Fees and Costs."
Courts in the Sixth Circuit find eight factors relevant in
considering whether a class action settlement is fair, adequate,
and reasonable: (1) the risk of fraud or collusion; (2) the
complexity, expense and likely duration of the litigation; (3) the
amount of discovery engaged in by the parties; (4) the likelihood
of success on the merits; (5) the opinions of class counsel and
class representatives; (6) the reaction of absent class members;
and (7) the public interest.
Judge Parker opines that (1) there is no fraud or collusion in
class action settlement; (2) the settlement provides an immediate,
significant, and certain recovery for class members; (3) the
counsel engaged in sufficient discovery to calculate the risks
involved in continued litigation; (4) the settlement accomplishes
what parties wanted and is adequate given the costs, risks, and
delay of trial and appeal; (5) the Plaintiff's counsel, Jason J.
Thompson, has extensive experience handling class action cases, and
the Defendant's counsel, John R. Fleming and William H. Horton,
also have extensive experience with class action lawsuit; (6) the
parties represent that there were no objections to the settlement;
and (7) the public interest is served by the resolution of the
matter.
Judge Parker further opines that the attorneys' fees, reimbursement
fees, and incentive award are appropriate. She finds that (i) the
33.1/3 percent fee award, or $318,000, requested by the Plaintiff's
counsel appears to be more than reasonable; (ii) the counsel's
request for reimbursement of expenses for the costs associated with
legal research, discovery, travel, transportation, court fees,
mailings, and postage is reasonable; and (iii) the requested amount
of a $2,500 incentive award out of a $940,000 settlement is well
within the normal range that is awarded.
Judge Parker says these factors lead her to conclude that the
Settlement Agreement is fair, reasonable, and adequate and entitled
to final approval. Accordingly, she grants the Plaintiff's
Unopposed Motion for Final Approval of Class Settlement,
Enhancement Awards to Class Representatives and Attorneys' Fees and
Costs.
A full-text copy of the Court's Nov. 30, 2022 Opinion & Order is
available at https://tinyurl.com/mr48tfj8 from Leagle.com.
OSWALD HOME: Underpays Construction Employees, Aguilar Claims
-------------------------------------------------------------
CARLOS AGUILAR, on behalf of himself and all others similarly
situated, Plaintiff v. OSWALD HOME IMPROVEMENT INC., A&L HOME
IMPROVEMENT INC., OSWALD WILLIAMSON, and ALTON WILIAMSON,
Defendants, Case No. 1:22-cv-07152 (E.D.N.Y., November 23, 2022)
brings this complaint as a collective action against the Defendants
for their alleged violations of the Fair Labor Standards Act and
the New York Labor Law.
The Plaintiff was employed by the Defendant as a full-time
non-exempt construction employee for more than 20 years - from in
or about 1999 until he was abruptly fired by the Defendant on July
2022.
The Plaintiff claims that although the Defendants required him and
other similarly situated construction employees to work 8 hours a
day and seven days per week, they still regularly worked between 2
and 4 hours beyond their scheduled shifts, often until 8:00 PM, due
to the heavy work load. However, the Defendants did not compensate
them for all hours they worked past the end of their scheduled
shifts. As a result, despite working more than 40 hours per week,
they were not paid for their lawfully earned overtime compensation
at the legally mandated overtime rate for all hours worked in
excess of 40 per workweek. In addition, the Defendants failed to
keep accurate and sufficient time records as required by the FLSA
and NYLL, and failed to post and/or keep posted a notice explaining
the overtime pay rights provided by the FLSA. Moreover, the
Defendants failed to provide them with an accurate statement with
every payment of wages listing all necessary information, says the
Plaintiff.
On behalf of himself and all other similarly situated construction
employees, the Plaintiff seeks to recover all unpaid wages,
liquidated damages, statutory damages, and interest, costs of
action incurred, attorneys' and expert fees, pre- and post-judgment
interest, and other relief as the Court deems necessary, just and
proper.
Oswald Home Improvement Inc., and A&L Home Improvement Inc. operate
a home improvement/construction business. Oswald Williamson is the
owner, chairman/chief executive officer, President and/or Manager
of Oswald Home Improvement Inc. Alton Williamson is the owner,
chairman/chief executive officer, President and/or Manager of A&L
and also served as a manager, owner and/or supervisor of OHI. [BN]
The Plaintiff is represented by:
David Harrison, Esq.
HARRISON, HARRISON & ASSOCIATES
110 State Highway 35, Suite 10
Red Bank, NJ 07701
Tel: (718) 799-9111
Fax: (718) 799-9171
E-mail: dharrison@nynjemploymentlaw.com
PAPA JOHN'S: Bid to Compel Arbitration & Dismiss Bazemore Suit OK'd
-------------------------------------------------------------------
In the case, ANDREW BAZEMORE, on behalf of himself and all others
similarly situated, Plaintiffs v. PAPA JOHN'S USA, INC. and PAPA
JOHN'S INTERNATIONAL, INC., Defendants, Civil Action No.
3:22-cv-311-RGJ (W.D. Ky.), Judge Rebecca Grady Jennings of the
U.S. District Court for the Western District of Kentucky,
Louisville Division:
a. grants the Defendants' Motion to Compel Arbitration and
Dismiss the Complaint; and
b. denies the Plaintiffs' Motion to Stay Deadline to Respond
to Defendants' Motion to Compel Arbitration and to Permit
Arbitration-Related Discovery.
The Defendants own and operate several pizza stores throughout the
United States and in the Western District of Kentucky. The
Plaintiffs were delivery drivers who delivered pizzas for the
Defendants. They allege that the mileage reimbursement allowed by
the Defendants fell well below the IRS business mileage
reimbursement rate or any other reasonable approximation of costs.
The Plaintiffs also allege that they were paid less than minimum
wage while working as delivery drivers. As a result, they initiated
a collective action under the Fair Labor Standards Act ("FLSA") and
class action under Federal Rule of Civil Procedure 23. In their
Complaint, they contend that the Defendants violated FLSA and the
Kentucky Wages and Hours Act.
The Defendants allege that Bazemore sued despite agreeing to
arbitrate all disputes related to his employment on an individual
basis. Their Custodian of Records and Senior Director of People
Services, Brandi Greene, filed an affidavit declaring that Bazemore
was presented with a copy of the Arbitration Agreement, and that he
signed the agreement as a condition of employment.
The Agreement requires the Parties "to resolve any and all claims,
disputes or controversies exclusively by final and binding
arbitration to be administered by a neutral dispute resolution
agency agreed upon by the Parties at the time of the dispute." It
covered claims "arising under any statutes applicable to employees
or the employment relationship." It also prohibited class or
collective actions. The copy of the Agreement provided to the Court
contains Bazemore's name, an electronic signature "By UserID:
467073," and it is dated Oct. 10, 2019.
Bazemore also filed an affidavit related to the Agreement. He
declared that he had never seen or heard of the Agreement prior to
receiving a copy of it from his lawyers. He claims that his login
credentials to were made up of demographic information that was
known to his manager. He alleges that his manager would log in
using Bazemore's credentials to complete training materials and
rushed Bazemore through his onboarding process. Ultimately,
Bazemore alleges he was not given the opportunity to review the
onboarding materials.
The Plaintiffs argue that the Defendants have failed to prove that
there are no material issues of fact regarding the Agreement's
formation. Bazemore asserts that he never saw the Agreement and was
not given an opportunity to review any onboarding documents. He
further alleges that his manager would log into his employee
account and fill out forms on his behalf.
In response, the Defendants argue that Bazemore does not deny
signing the e-Signature Disclosure and Consent form and does not
directly deny signing the Agreement, instead stating he has neither
seen nor heard of the Agreement. As a result, they assert that
Bazemore has failed to identify a material issue of fact still in
dispute.
Neither party disputes that the claims fall within the substantive
scope of the Agreement if it is enforceable. Thus, to enforce the
Agreement, Judge Jennings need only determine whether a valid
contract exists. If she cannot determine whether the Agreement is
enforceable, then she may permit discovery related to contract
formation. Kentucky law applies to interpreting the formation of an
arbitration agreement.
First, Judge Jennings must determine whether the Agreement is a
valid contract under Kentucky law. She finds that Bazemore has
failed to submit any additional evidence to support his claims.
Bazemore's final assertion that his manager may have signed the
Agreement on his behalf is speculation without additional evidence.
Mere speculation is not enough to create an issue of fact. Because
Bazemore has not created a material issue of fact, the Plaintiffs
are not entitled to discovery related to formation of the
Agreement. Accordingly, the Plaintiffs' Motion to Stay Deadline to
Respond to Defendants' Motion to Compel Arbitration and to Permit
Arbitration-Related Discovery is denied.
As discussed, the Defendants met their initial burden by producing
an affidavit declaring that Bazemore signed the Agreement by an
electronic signature. The Court routinely finds that electronic
acknowledgements of arbitration agreements manifest assent. Based
on Bazemore's electronic signature, Judge Jennings finds that
Bazemore entered into the Agreement. Bazemore has not articulated
another defense that would prevent enforcement of the Agreement.
Because the Plaintiffs' claims must be submitted to arbitration
under the Agreement, she must dismiss the Plaintiffs' Complaint.
Accordingly, the Defendants' Motion to Compel Arbitration and
Dismiss the Complaint is granted.
A full-text copy of the Court's Nov. 30, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/3auxcw6s from
Leagle.com.
PENNSYLVANIA: Court Tosses 14th Amendment Claim in Lopez v. Wetzel
------------------------------------------------------------------
In the case, GEORGE IVAN LOPEZ, et al., Plaintiffs v. JOHN E.
WETZEL, et al., Defendants, Civil Action No. 3:21-CV-1819 (M.D.
Pa.), Judge Christopher C. Conner of the U.S. District Court for
the Middle District of Pennsylvania grants in part and denies in
part the Defendants' motion to dismiss the complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6) on the grounds of
qualified immunity.
The Plaintiffs, six pro se capital prisoners, bring the putative
class action against the Pennsylvania Department of Corrections
("DOC") and three former Secretaries of Corrections, John E.
Wetzel, Jeffery A. Beard, and Martin F. Horn, individually and in
their official capacities, alleging violations of the Eighth and
Fourteenth Amendments, the Americans with Disabilities Act ("ADA"),
and the Rehabilitation Act.
The Plaintiffs are currently incarcerated on death row at State
Correctional Institution ("SCI") Phoenix. Prior to their placement
at SCI Phoenix, the Plaintiffs spent time in the Restricted Housing
Units ("RHUs") at the now-defunct SCI Graterford, which closed in
2018, and SCI Greene, which maintained a capital population until
2020. Noting that state law requires prison officials to hold
capital inmates in solitary confinement only "upon receipt of a
death warrant," the Plaintiffs allege that prison officials
needlessly kept them in isolation for durations ranging from eight
to thirty-two years pursuant to DOC Policy 6.5.8, "Capital Case
Administration," which the DOC overhauled in December 2019.
The Plaintiffs draw a stark contrast between their experiences as
RHU residents and the ordinary incidents of prison life for the
general prison population. Regarding health matters, they assert
that the DOC denied them the necessary care to manage particular
maladies, including psychiatric treatment, pain medication,
physical therapy, and surgery, as well as specific accommodations
like handicap-accessible shower facilities.
Plaintiffs charge former DOC Secretaries Horn, Beard, and Wetzel
with determining the rules, regulations, and policies regarding
management and overall operation of the Department, including the
RHU, and authorizing or condoning the policy of housing capital
inmates in solitary confinement indefinitely and without rationale.
They believe that the cramped conditions and prolonged isolation
occasioned by the Defendants' RHU policies and failure to provide
adequate medical care caused or exacerbated many of their ailments.
Lastly, the Plaintiffs note that their recurring grievances and
requests for care and accommodations put the Defendants on notice
of their preexisting and detainment-related health issues -- to no
avail.
The Plaintiffs acknowledge that their conditions of confinement
changed considerably in December 2019 with the DOC's implementation
of Policy 7.5.1, "Administration of Specialized Inmate Housing,"
supplanting prior directives in many respects. The DOC also revised
the reporting requirements for prison staff who observe signs of
mental decompensation and distress. The new policy relaxes previous
limits on visitations, phone privileges, and available work
assignments. Although more severe restrictions may be reimposed on
a case-by-case basis, for the most part, the new policy treats
capital inmates more like the general prison population.
Notwithstanding the DOC's capital-unit reforms, on Oct. 26, 2021,
the Plaintiffs filed the underlying complaint pursuant to 42 U.S.C.
Section 1983. They seek class certification under Federal Rule of
Civil Procedure 23(b)(3) or, alternatively, Rule 23(b)(1). Relying
upon the doctrine of qualified immunity, the Defendants move to
dismiss the Plaintiffs' constitutional claims. Judge Mehalchick
recommends that the Court rejects that defense and denies the
Defendants' motion. The Defendants object to her report and
recommendation, and the Plaintiffs respond.
The Defendants assert that they are entitled to qualified immunity
as applied to the Plaintiffs' Eighth and Fourteenth Amendment
claims. In the matter sub judice, they argue that the
constitutional rights asserted by the Plaintiffs were not clearly
established when the alleged violations occurred. They also claim
that the Plaintiffs lack a cognizable liberty interest in avoiding
confinement on death row that is protected by the Fourteenth
Amendment's Due Process Clause. The Plaintiffs' responses largely
track the report's analysis.
Judge Conner overrules the Defendants' objections to Judge
Mehalchick's recommended denial of qualified immunity on the
Plaintiffs' Eighth Amendment claims and denies their motion to
dismiss on that basis. He is persuaded that the Plaintiffs'
specific allegations implicate their right to adequate medical
treatment, which was clearly established in the law as far back as
1976. The Plaintiffs sufficiently allege that the Defendants were
aware of and yet deliberately indifferent to their serious mental
health needs, denied them necessary care to manage their
conditions, and further impaired their already fragile psyches by
wantonly subjecting them to solitary confinement without
penological justification.
With respect to the Eighth Amendment claim, Judge Conner finds that
the Plaintiffs remain subject to "active and viable" death
sentences. Thus, even if he assumes that they, too, have a right to
challenge their solitary confinement under the Due Process Clause
of the Fourteenth Amendment, he is constrained to conclude that
such a right was not clearly established at the time of the alleged
conduct, which predated Porter v. Pa. Dep't of Corr., 974 F.3d 431,
446 (3d Cir. 2020). Accordingly, the Plaintiffs' Fourteenth
Amendment claim fails, and the Defendants are entitled to qualified
immunity on this issue.
In view of the foregoing, Judge Conner grants the Defendants'
motion to dismiss the Plaintiffs' Fourteenth Amendment claim and
denies it in all other respects. An appropriate order will be
issued.
A full-text copy of the Court's Nov. 30, 2022 Memorandum is
available at https://tinyurl.com/bdz84pme from Leagle.com.
REVOLVE GROUP: Florio Sues Over Unsolicited Telephonic Sales Calls
------------------------------------------------------------------
Alexandria Florio, individually and on behalf of all others
similarly situated v. Revolve Group, Inc., Case No. 159860526 (Fla.
13th Judicial Cir. Ct., Hillsborough Cty., Oct. 24, 2022), is
brought against the Defendant for the Defendant's violations of the
Florida Telephone Solicitation Act by engaging in unsolicited
telephonic sales calls.
To promote its goods and services, the Defendant engages in
telephonic sales calls to consumers without having secured prior
express written consent as required by the FTSA. The Plaintiff and
the Class members have been aggrieved by the Defendant's unlawful
conduct, which adversely affected and infringed upon their legal
rights not to be subjected to the illegal acts at issue. Through
this action, the Plaintiff seeks an injunction and statutory
damages on behalf of the Plaintiff individually and the Class
members, and any other available legal or equitable remedies
resulting from the unlawful actions of Defendant, says the
complaint.
The Plaintiff is an individual and a "called party."
The Defendant is a consumer goods and services retailer.[BN]
The Plaintiff is represented by:
Benjamin W. Raslavich, Esq.
KUHN RASLAVICH, P.A.
2110 West Platt Street
Tampa, FL 33606
Phone: (813) 422–7782
Facsimile: (813) 422–7783
Email: ben@theKRfirm.com
REX VENTURE: Larson's Bid to Vacate Judgment in Orso Suit Denied
----------------------------------------------------------------
In the case, NATIONWIDE JUDGMENT RECOVERY, INC. as assignee of
Matthew E. Orso, in his capacity as successor court-appointment
Receiver for Rex Venture Group, LLD, d/b/a ZeekRewards.com for
Receiver Kenneth D. Bell, Plaintiffs v. JAMES K. LARSON, a member
of the Defendant Class of Net Winners in ZeckRewards.com, TODD
DISNER, in his individual capacity and in his capacity as trustee
for Kestrel Spendthrift Trust, TRUDY GILMOND, TRUDY GILMOND, LLC,
JERRY NAPIER, DARREN MILLER, RHONDA GATES, DAVID SORRELLS,
INNOVATION MARKETING, LLC, AARON ANDREWS, SHARA ANDREWS, GLOBAL
INTERNET FORMULA, INC., T. LEMONT SILVER, KAREN SILVER, MICHAEL VAN
LEEUWEN, DURANT BROCKETT, DAVID KETTNER, MARY KETTNER, P.A.W.S.
CAPITAL MANAGEMENT LLC LORI JEAN WEBER, and Defendant Class of Net
Winners in ZEEKREWARDS.COM, Defendants, Civil Action No.
22-rj-00006-CMA (D. Colo.), Judge Christine M. Arguello of the U.S.
District Court for the District of Colorado denies Larson's Motion
For/To: Order to Vacate Judgment.
The "clawback" litigation was initiated by the Receiver of Rex
Venture Group, LLC ("RVG") in the U.S. District Court for the
Western District of North Carolina ("W.D.N.C."). RVG had previously
engaged in a combined Ponzi and pyramid scheme through ZeekRewards
("Zeek") resulting in over 700,000 participants losing over $700
million. Net winners of the scheme were unlawfully awarded over
$283 million.
On Aug. 17, 2012, RVG consented to entry of judgment in favor of
the Securities and Exchange Commission. A Receiver was appointed
for RVG and instructed to institute actions and legal proceedings
seeking the avoidance of fraudulent transfers, disgorgement of
profits, imposition of constructive trusts and any other legal and
equitable relief that the Receiver deems necessary and appropriate
to preserve and recover RVG's assets for the benefit of the
Receivership Estate. Zeek's net winners are not permitted to keep
their winnings because they were the result of an unlawful scheme.
Thus, RVG's Receiver initiated a "clawback" action on Feb. 28,
2014, asserting claims of relief against the Defendants for: (1)
Fraudulent Transfer of RVG Funds in Violation of the North Carolina
Uniform Fraudulent Transfer Act; (2) Common Law Fraudulent
Transfer; and (3) Constructive Trust.
On Feb. 10, 2015, the W.D.N.C. certified a Defendant class
comprised of "all persons or entities who were Net Winners of more
than one thousand dollars in ZeekRewards." After the class was
certified, the W.D.N.C. entered a Process Order designed to (1)
provide Net Winners with notice that they were members of the Net
Winner class; and (2) to provide Net Winners with the opportunity
to contest the amount of their winnings. The Process Order required
the Receiver to effect notice to class members by three means: (1)
"by email to the email address provided by the net winner in
connection with any Zeek account as well as any other email address
that has been provided by the net winner following the appointment
of the Receiver"; (2) by letter to the last known physical address
of the Net Winner; and (3) by posting a link to the Receivership
website.
Larson was identified as a class member and the W.D.N.C. entered
final judgment against him in the amount of $7,331.14 on Aug. 14,
2017. On Oct. 28, 2020, that judgment was registered in this Court.
Larson now seeks to have that judgment vacated, arguing he was not
properly served with notice of the action against him. The assignee
of the successor court-appointed Receiver to the Final Judgments
entered against the class of Net Winners, Plaintiff National
Judgment Recovery, Inc., responded to Larson's motion. Larson did
not file a Reply.
Judge Arguello states that Larson's motion does not cite an
authority justifying the relief he seeks, but because he claims he
was never properly served, she considers his motion under Fed. R.
Civ. P. 60(b)(4). She finds that Larson has not presented a basis
for vacatur. In the instant case, the W.D.N.C.'s Process Order
required the Receiver to effect notice to class members in three
ways: by email, by mail, and by notice on the receivership
website.
The U.S. Court of Appeals for the Fourth Circuit determined these
procedures satisfied due process and "provided a process by which
damages could be individually challenged and litigated." Larson has
not disputed that the Receiver complied with the Process Order.
Thus, the Receiver met its obligation to provide notice that was
"reasonably calculated, under all the circumstances," to apprise
Larson of the proceedings and an opportunity to present evidence
concerning the claims he now seeks to make. Therefore, Larson is
bound by the Judgment.
For the foregoing reasons, Larson's Motion is denied.
A full-text copy of the Court's Nov. 30, 2022 Order is available at
https://tinyurl.com/yc3tbk3k from Leagle.com.
ROCKIN RUDY'S: Rhone Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Rockin Rudy's, Inc.
The case is styled as Tonimarie Rhone, on behalf of herself and all
others similarly situated v. Rockin Rudy's, Inc., Case No.
1:22-cv-10302 (S.D.N.Y., Dec. 6, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Rockin Rudy's -- https://www.rockinrudys.com/ -- has grown from a
small independent record shop to one of the go to stops for
residents and visitors of Missoula to find the perfect gift.[BN]
The Plaintiff is represented by:
Noor H. Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
RUNNING WAREHOUSE: Gasnick Appeals Order Compelling Arbitration
---------------------------------------------------------------
Plaintiff Laurie Gasnick filed an appeal from a court ruling
entered in the lawsuit entitled Laurie Gasnick, individually and on
behalf of all others similarly situated, Plaintiff v. Running
Warehouse LLC, Tackle Warehouse LLC, Tennis Warehouse LLC and Skate
Warehouse LLC, Defendants, Case No. 22-cv-00101, in the U.S.
District Court for the Central District of California, Riverside.
The Plaintiff brought this class action on January 5, 2022 against
Defendants seeking injunctive and other equitable relief in
violation of the California Customer Records Act, California Unfair
Competition Law and from the failure to properly secure and
safeguard personal identifiable information and protected
information acquired from or created for its employees, including
without limitation, names, addresses, dates of birth, patient
identification numbers, Social Security numbers, driver's
license/state ID numbers, passport numbers, credit/debit card
information and financial account information.
As reported in the Class Action Reporter on Oct. 28, 2022, the U.S.
District Court for the Central District of California entered an
order granting the Defendants' Motion to Compel Arbitration and
dismissing the Plaintiffs' individual and putative class claims in
these seven related actions without prejudice:
a. Patrick v. Running Warehouse, No. 2:21-cv-09978-ODW (JEMx);
b. Buffington v. Running Warehouse, No. 2:21-cv-09980-ODW
(JEMx);
c. Arcilla v. Wilderness Sports Warehouse,
No. 5:22-cv-00012-ODW (JEMx);
d. Gasnick v. Running Warehouse, No. 2:22-cv-00101-ODW (JEMx);
e. Pfeffer v. Wilderness Sports Warehouse,
No. 2:22-cv-00297-ODW (JEMx);
f. Solter v. Sports Warehouse, No. 2:22-cv-00460-ODW (JEMx);
and
g. Hargrove v. Wilderness Sports Warehouse,
No. 2:22-cv-01716-ODW (JEMx).
Judge Wright found that (i) incorporation of alternative dispute
resolution services provider JAMS Inc. arbitration rules
constitutes clear and unmistakable evidence that the parties
intended to delegate arbitrability, regardless of whether the
parties are "sophisticated"; (ii) a clause prohibiting an
arbitrator from issuing a public injunction is invalid and
unenforceable; (iii) Running's website provided sufficient
information to put Arcilla on inquiry notice; and (iv) the
Plaintiffs fail to establish that the Terms are substantively
unconscionable and Plaintiffs' unconscionability argument
necessarily fails.
The Plaintiff seeks a review of this order.
The appellate case is captioned as Laurie Gasnick v. Running
Warehouse, LLC, et al., Case No. 22-56082, in the United States
Court of Appeals for the Ninth Circuit, filed on Nov. 21, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant Laurie Gasnick Mediation Questionnaire was due on
November 28, 2022;
-- Transcript shall be ordered by December 19, 2022;
-- Transcript is due on January 17, 2023;
-- Appellant Laurie Gasnick opening brief is due on February 27,
2023;
-- Appellees Running Warehouse, LLC, Sports Warehouse, Inc. and
Wilderness Sports Warehouse, LLC answering brief is due on March
27, 2023; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant LAURIE GASNICK, individually and on behalf of
all others similarly situated, is represented by:
Kiley Lynn Grombacher, Esq.
BRADLEY GROMBACHER LLP
31365 Oak Crest Drive, Suite 240
Westlake Village, CA 91361
Telephone: (805) 270-7100
Defendants-Appellees RUNNING WAREHOUSE, LLC, a California limited
liability company; WILDERNESS SPORTS WAREHOUSE, LLC, a California
limited liability company, DBA Tackle Warehouse; and SPORTS
WAREHOUSE, INC., a California corporation, DBA Tennis Warehouse,
are represented by:
Benjamin O. Aigboboh, Esq.
P. Craig Cardon, Esq.
Jay T. Ramsey, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON, LLP
333 S Hope Street 43rd Floor
Los Angeles, CA 90071-1448
Telephone: (310) 228-3700
RUNNING WAREHOUSE: Patrick Appeals Order Compelling Arbitration
---------------------------------------------------------------
Plaintiff John Patrick filed an appeal from a court ruling entered
in the lawsuit entitled Patrick v. Running Warehouse, Case No.
2:21-cv-09978-ODW, in the U.S. District Court for the Central
District of California, Riverside.
The Plaintiff brought this class action on December 29, 2021
against Defendants for their failure to secure and safeguard his
and other individuals' private information, including names,
mailing addresses, payment card numbers, expiration dates, and card
security codes. The Plaintiff brought this action on behalf of
himself and all persons whose personal identifiable information was
exposed as a result of the data breach.
As a result of Defendants' inadequate security and breach of their
duties and obligations, the Data Breach occurred, and Plaintiff's
and Class members' PII was accessed and disclosed. This action
seeks to remedy these failings and their consequences. The
Plaintiff, on behalf of himself and all other Class members,
asserts claims for negligence, negligence per se, breach of implied
contract, unjust enrichment, violation of the California Consumer
Privacy Act of 2018, and violation of the California Unfair
Competition Law, and seeks declaratory relief, injunctive relief,
monetary damages, statutory damages, punitive damages, equitable
relief, and all other relief authorized by law.
As reported in the Class Action Reporter on Oct. 28, 2022, the U.S.
District Court for the Central District of California entered an
order granting the Defendants' Motion to Compel Arbitration and
dismissing the Plaintiffs' individual and putative class claims in
these seven related actions without prejudice:
a. Patrick v. Running Warehouse, No. 2:21-cv-09978-ODW (JEMx);
b. Buffington v. Running Warehouse, No. 2:21-cv-09980-ODW
(JEMx);
c. Arcilla v. Wilderness Sports Warehouse,
No. 5:22-cv-00012-ODW (JEMx);
d. Gasnick v. Running Warehouse, No. 2:22-cv-00101-ODW (JEMx);
e. Pfeffer v. Wilderness Sports Warehouse,
No. 2:22-cv-00297-ODW (JEMx);
f. Solter v. Sports Warehouse, No. 2:22-cv-00460-ODW (JEMx);
and
g. Hargrove v. Wilderness Sports Warehouse,
No. 2:22-cv-01716-ODW (JEMx).
Judge Wright found that (i) incorporation of alternative dispute
resolution services provider JAMS Inc. arbitration rules
constitutes clear and unmistakable evidence that the parties
intended to delegate arbitrability, regardless of whether the
parties are "sophisticated"; (ii) a clause prohibiting an
arbitrator from issuing a public injunction is invalid and
unenforceable; (iii) Running's website provided sufficient
information to put Arcilla on inquiry notice; and (iv) the
Plaintiffs fail to establish that the Terms are substantively
unconscionable and Plaintiffs' unconscionability argument
necessarily fails.
The Plaintiff seeks a review of this order.
The appellate case is captioned as John Patrick v. Running
Warehouse, LLC, et al., Case No. 22-56078, in the United States
Court of Appeals for the Ninth Circuit, filed on Nov. 21, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant John Patrick Mediation Questionnaire was due on
November 28, 2022;
-- Transcript shall be ordered by December 19, 2022;
-- Transcript is due on January 17, 2023;
-- Appellant John Patrick opening brief is due on February 27,
2023;
-- Appellees Running Warehouse, LLC, Sports Warehouse, Inc. and
Wilderness Sports Warehouse, LLC answering brief is due on March
27, 2023; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant JOHN PATRICK, individually and on behalf of all
others similarly situated, is represented by:
Jean Sutton Martin, Esq.
LAW OFFICE OF JEAN SUTTON MARTIN PLLC
2018 Eastwood Road, Suite 225
Wilmington, NC 28405
Telephone: (910) 292-6676
Defendants-Appellees RUNNING WAREHOUSE, LLC, a California limited
liability company; WILDERNESS SPORTS WAREHOUSE, LLC, a California
limited liability company, DBA Tackle Warehouse; and SPORTS
WAREHOUSE, INC., a California corporation, DBA Tennis Warehouse,
are represented by:
Benjamin O. Aigboboh, Esq.
P. Craig Cardon, Esq.
Jay T. Ramsey, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON, LLP
333 S Hope Street 43rd Floor
Los Angeles, CA 90071-1448
Telephone: (310) 228-3700
SACRAMENTO BEHAVIORAL: Morris Files Suit in Cal. Super. Ct.
-----------------------------------------------------------
A class action lawsuit has been filed against Sacramento Behavioral
Healthcare Hospital LLC, et al. The case is styled as Kristal
Morris, and on behalf of all others similarly situated v.
Sacramento Behavioral Healthcare Hospital LLC, Signature Healthcare
Services LLC, Villa Oaks LLC, Soon Kim, Does 1-100, Case No.
34-2022-00330937-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Dec.
6, 2022).
The nature of suit is stated as "Other Employment - Civil
Unlimited."
Sacramento Behavioral Healthcare Hospital --
https://norcalbehavioral.com/ -- offers a wide array of
individualized mental health treatment services for teens, adults,
and senior adults.[BN]
The Plaintiff is represented by:
Xinying Valerian, Esq.
VALERIAN LAW, P.C.
1530 Solano Ave
Berkeley, CA 94707
Phone: 888.686.1918
SAMSUNG ELECTRONICS: Chandler Sues Over Failure to Protect PII
--------------------------------------------------------------
Alex Chandler & Seledia Serina, Individually and On Behalf of All
Others Similarly Situated v. SAMSUNG ELECTRONICS AMERICA, INC.,
Case No. 2:22-cv-06241-WJM-CLW (D.N.J., Oct. 24, 2022), is brought
against Samsung due to its failure to protect the sensitive and
confidential Personally Identifiable Information ("PII") of
millions of customers--including first and last names, dates of
birth, postal addresses, precise geolocation data, email addresses,
and telephone numbers. The Defendant's wrongful disclosure has
harmed Plaintiffs and the Class, which includes millions of
people.
The Plaintiffs and other proposed Class members were required, as
current and prospective customers of Samsung, to provide Samsung
with sensitive Personally Identifiable Information to purchase or
receive Samsung's devices and services. Samsung also collects
information automatically from its customers concerning their
Samsung devices such as their mobile network operator; connections
to other devices; app usage information; device settings; web sites
visited; search terms used; the apps, services, or features a
customer downloads or purchases; and how and when those services
are used.
The Personally Identifiable Information that Samsung collects from
its customers is valuable to Samsung. Indeed, Samsung acknowledges
this information "plays a key role in elevating what we do for our
community" and that it "engages with Personally Identifiable
Information to inform and enhance everything from your experience
to our communication, and to create and innovate radical solutions
that help you overcome barriers." Because Personally Identifiable
Information is valuable to Samsung's customers, Samsung made
multiple promises to alleviate concerns any customers may have
about providing Samsung with this sensitive information.
On September 2, 2022, the Friday before Labor Day, Samsung released
a statement announcing that its "U.S. systems" had been infiltrated
"in late July 2022" by "an unauthorized third party" that then
stole Personally Identifiable Information that Plaintiffs and other
putative Class members had entrusted to Samsung. Although Samsung
touts that it "always aims to do the right thing by being open and
honest with its customers," Samsung did not release a statement to
affected customers until almost a month after learning of the data
breach. Samsung's statement also was not transparent.
The Plaintiffs and Class members have been injured by the
disclosure of their Personally Identifiable Information in
Samsung's data breach. The exposure of Plaintiffs' and Class
members' names, dates of birth, contact and demographic
information, and product registration information increases their
risk exponentially for precision spearphishing attacks, engineered
SIM swaps, and the threat of credit and loans being taken out in
their names, says the complaint.
The Plaintiffs are current Samsung customer.
Samsung is "recognized globally as an industry leader in
technology."[BN]
The Plaintiffs are represented by:
Joseph J. DePalma, Esq.
Catherine B. Derenze, Esq.
LITE DEPALMA GREENBERG & AFANADOR, LLC
570 Broad Street, Suite 1201
Newark, NJ 07102
Phone: (973) 623-3000
Facsimile: (973) 623-0858
Email: jdepalma@litedepalma.com
cderenze@litedepalma.com
SAN FRANCISCO, CA: Wins Summary Judgment v. Pierce, et al.
----------------------------------------------------------
In the class action lawsuit captioned as JILLIAN PIERCE, NICOLE
WADE, FANTASY DECUIR, DAMENA PAGE, VINCENT KEITH BELL, on behalf of
themselves and all others similarly situated, v. CITY AND COUNTY OF
SAN FRANCISCO, VICKI HENNESSAEY, MICHELE FISHER, PAUL MIYAMOTO,
DOES 1-50, Case No. 4:19-cv-07659-JSW (N.D. Cal.), the Hon. Judge
Jeffrey S. White entered an order:
1. granting the Defendants' motion for summary judgment;
2. denying the Plaintiffs' motion for summary judgment
regarding the outdoor recreation claim;
3. granting the Defendants' motion for summary judgment on
the cross-gender search claim.
The Court finds that a reasonably jury could not find that
incidental and casual viewing by the male deputies was so degrading
as to amount to a constitutional violation.
Based on the Court's finding that the incidental cross-gender
viewing during strip searches conducted at CJ2 pass constitutional
muster under existing precedent, the Court similarly finds that the
Monell claim and the Bane Act claims, which depend upon a finding
of unconstitutional treatment, similarly fail. The Court grants the
Defendants' motion for summary judgment on the cross-gender search
claim.
The Plaintiffs also allege that between March 30, 2018 and August
21, 2020, the Defendants indiscriminately subjected 414 female
pretrial detainees housed in CJ2 to unreasonable and non-emergent
unclothed body cavity searches in the presence of male deputies and
other women.
The Plaintiffs claim that these searches occurred eight times in
less than two years, thereby establishing a pattern or practice of
subjecting the female pretrial detainees to searches in violation
of their constitutional rights and in violation of the Bane Act.
A copy of the Court's order dated Dec. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3F603UI at no extra charge.[CC]
SCOTT LENNON: Chavez Files Suit in N.D. Illinois
------------------------------------------------
A class action lawsuit has been filed against Scott Lennon. The
case is styled as Luz Chavez, Stephen Taylor, individually and on
behalf of all others similarly situated v. Scott Lennon, Alderman
of the 1st Ward of the City of Berwyn, Case No. 1:22-cv-05924 (N.D.
Ill., Oct. 26, 2022).
The nature of suit is stated as Other Civil Rights for the Civil
Rights Act.
Scott Lennon is Berwyn's 1st Ward Alderman.[BN]
The Plaintiffs are represented by:
Adele D. Nicholas, Esq.
LAW OFFICE OF ADELE D. NICHOLAS
5707 W. Goodman
Chicago, IL 60630
Phone: (847) 361-3869
Email: adele@civilrightschicago.com
- and -
Mark G. Weinberg, Esq.
3612 North Tripp
Chicago, IL 60641
Phone: (312) 283-3913
Email: mweinberg@sbcglobal.net
The Defendant is represented by:
Sean Michael Sullivan, Esq.
Catherine Newell Coghlan, Esq.
DEL GALDO LAW GROUP, LLC
1441 S. Harlem Ave.
Berwyn, IL 60402
Phone: (773) 562-3090
Email: sullivan@dlglawgroup.com
coghlan@dlglawgroup.com
SLEEPY'S LLC: Summary Judgment Bid in Gundell Suit Granted in Part
------------------------------------------------------------------
In the case, JEFFREY GUNDELL, on behalf of himself and others
similarly situated, Plaintiff v. SLEEPY'S, LLC, et al., Defendants,
Civil Action No. 15-7365 (ZNQ) (DEA) (D.N.J.), Judge Zahid N.
Quraishi of the U.S. District Court for the District of New Jersey
grants in part and denies in part the Motion for Summary Judgment
filed by Defendants Sleepy's, Mattress Firm, Inc., and Mattress
Firm Inc., as successor in interest to Sleepy's.
The Plaintiff brings the putative class action lawsuit on behalf of
himself and others similarly situated, alleging violations of New
Jersey's Truth-in-Consumer Contract, Warranty, and Notice Act
("TCCWNA"), the New Jersey Furniture Delivery Regulations ("FDR"),
and the New Jersey Consumer Fraud Act ("CFA"). At all times
relevant to the case, Sleepy's is a Delaware Limited Liability
Company with its principal place of business in Hicksville, New
York. Mattress Firm had acquired Sleepy's and, via consent order in
April 2016, agreed to be a named party in this matter both directly
and as successor in interest to Sleepy's.
The action was removed to this Court on Oct. 8, 2015, from the
Superior Court of New Jersey, Middlesex County. The Plaintiff's
operative pleading, the Third Amended Complaint, was filed on March
18, 2019. The Complaint alleges that the Defendants' refusal to
provide a refund for a non-conforming product and further unlawful
contractual language in its invoices to that effect violates the
TCCWNA, FDR, and CFA, and further seeks declaratory judgment that
the limitation of liability provision in the sales order invoice is
null and void.
The Defendants filed a Motion to Dismiss the Third Amended
Complaint on April 23, 2019. Oral argument was heard on the Motion
to Dismiss before the Court on Nov. 5, 2019. Following the hearing,
the Court denied the Defendants' Motion to Dismiss by Letter
Opinion and Order on Nov. 14, 2019.
The Third Amended Complaint arises out of a transaction between
Gundell and Sleepy. On Feb. 16, 2013, the Plaintiff placed an order
for a Tempur-Pedic mattress at a Sleepy's location in East
Brunswick, New Jersey, and scheduled delivery for March 2, 2013.
Thereafter, on May 24, 2015, the Plaintiff placed an order for a
new mattress base that allowed for newer features than his original
mattress base. The delivery was scheduled for May 31, 2015.
The Plaintiff conducted his own due diligence in buying the
mattress, including speaking with Sears and Sleepy's employees to
confirm the type of mattress base he was looking for. The specific
and exact base that was selected and ordered by the Plaintiff was
the "Tempur-Pedic Ergo Plus Adjustable Base." The mattress base was
timely delivered.
The Plaintiff was provided a customer invoice and sales order
receipt in conjunction with his order that enumerated both his and
Sleepy's rights and obligations. After the mattress base was
delivered, the Plaintiff alleged that it was not compatible with
his mattress. In November 2015, the Plaintiff settled his claim
with Tempur-Pedic.
Sleepy's asserts that the Plaintiff received a payment four times
the purchase price. The Plaintiff acknowledges that he received a
settlement payment and discloses the dollar amount, but asserts
that it does not fully compensate him for the violation under the
CFA, leaving Sleepy's liable for the remainder.
The Court has original jurisdiction over the Plaintiff's claims
under the Class Action Fairness Act of 2005 because the number of
members of all proposed plaintiff classes in the aggregate is at
least 100, there is at least partial diversity between the parties,
and the aggregated claims of the class members exceed the sum or
value of $5 million, exclusive of interest and costs.
Count Three of the Third Amended Complaint alleges violations of
the FDR and CFA. The Plaintiff argues that the base is
non-conforming because, contrary to what he was told by Sleepy's
and Sears employees, the mattress that he owns is not compatible
with the base that he ordered. He separately alleges that the
Defendants violated the FDR because they failed to provide him
notice of circumstances in which Defendants must issue a refund or
his right to cancel for a full refund.
Judge Quraishi opines that it is clear to the Court that the
Defendants strictly complied with the language required by the FDR
and are therefore not in violation of the CFA. It is undisputed
that the mattress base enumerated in the sales contract is the
exact mattress base that was timely delivered to the Plaintiff and
that the Defendants used the statutorily required language
regarding refunds. He therefore finds that there is no genuine
dispute as to the material facts with respect to the alleged FDR
and CFA violations. Accordingly, he concludes that the Defendants
are entitled to summary judgment on Count Three of the Third
Amended Complaint.
Count One of the Third Amended Complaint alleges violations of the
TCCWNA. To establish a claim under the TCCWNA, the Plaintiff must
show four elements: (1) that the Defendant was a seller; (2) that
the seller offered or entered into a written consumer contract; (3)
that, at the time the written consumer contract was signed or
displayed, the writing contained a provision that violated a
clearly established legal right of a consumer or responsibility of
a seller; and (4) that the Plaintiff is an aggrieved consumer,
citing Spade v. Select Comfort Corp., 232 N.J. 504, 516 (N.J.
2018).
It is undisputed that the Plaintiff satisfies the first two
elements of the Spade test, Judge Quraishi says. Namely, Sleepy's
was in fact a seller and it entered into a written consumer
warranty contract with the Plaintiff in the form of the customer
invoice. The parties then turn much of their attention to the
fourth Spade element; whether the Plaintiff is an "aggrieved
consumer."
Judge Quraishi holds that the Court has already established that
the Plaintiff is not aggrieved by untimely, nonconforming delivery.
Even if the delivery was untimely, the contract between the
Plaintiff and Sleepy's does not have any prohibited language such
as "all sales final", "no cancellations", or "no refunds" as
enumerated in Spade.
To the contrary, the contract specifically provides for refunds and
cancellations for untimely delivery or damaged/nonconforming goods.
As there was no contract provision that violated the FDR, the
Plaintiff is not an aggrieved consumer under either of the two
examples provided by the Spade court. Accordingly, Judge Qurishi
concludes that the Defendants are entitled to summary judgment as
to Count One of the Third Amended Complaint. In light of these
findings, the Plaintiff is not an aggrieved consumer and thus
cannot proceed with his TCCWNA claim.
Count Two of the Third Amended Complaint requests a declaratory
judgment that the limitation of liability and the refund provisions
in the sales order invoice are null and void and/or void as against
statutes and public policy pursuant to the Uniform Declaratory
Judgment Act ("UDJA").
Judge Quraishi holds that although the Defendants' initial moving
papers explicitly seek dismissal of the entirety of the Third
Amended Complaint, they make no arguments specifically directed to
Count Two. The Plaintiff highlights this omission repeatedly in his
Opposition. The Defendants' Reply nevertheless remains
conspicuously silent while reiterating their request that the
entirety of the Third Amended Complaint be dismissed. The
Defendants have therefore not met their burden as moving parties
and this portion of their Motion will therefore be denied.
For the reasons he stated, Judge Quraishi grants the Defendants'
Motion for Summary Judgment as to Count One and Count Three of the
Third Amended Complaint and denies it as to Count Two of the Third
Amended Complaint. An appropriate Order will follow.
A full-text copy of the Court's Nov. 30, 2022 Opinion is available
at https://tinyurl.com/39hpwrjf from Leagle.com.
SOLSTICE MANAGEMENT: More Time to File Class Cert Response Sought
-----------------------------------------------------------------
In the class action lawsuit captioned as Bobbi Gasaway, an Arizona
resident; and Dajah Andrews, an Arizona resident, v. Solstice
Management Group, LLC d/b/a Monarch Theatre, an Arizona company;
Sean Badger, an Arizona resident; and Penelope Badger, an Arizona
resident, Case No. 2:22-cv-01520-DJH (D. Ariz.), the Parties ask
the Court to enter an order allowing the Defendants until December
12, 2022 to respond to Plaintiffs' motion for conditional
certification, an extension of seven days.
The reason for this request is that Defendants' counsel is still
compiling information from the Defendants as to the personnel at
the Defendants' business that may be encompassed in the proposed
group subject to the certification motion, which is part of the
objections the Defendants' may raise.
The Plaintiffs' counsel joins in this motion on the condition that
any statute of limitations applicable to any opt-in Plaintiff is
tolled for the seven-day period of this extension. The Defendants'
counsel agrees to that condition.
A copy of the Parties' motion dated Dec. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3FwYZus at no extra charge.[CC]
The Plaintiff is represented by:
Jason Barrat, Esq.
ZOLDAN LAW GROUP, PLLC
5050 N. 40th St., Suite 260
Phoenix, AZ 85018
The Defendants are represented by:
Michael D. Curran, Esq.
MAYNARD CRONIN ERICKSON & CURRAN, P.L.C.
3200 N. Central Ave., Ste. 1800
Phoenix, AZ 85012
Telephone: (602) 279-8500
Facsimile: (602) 263-8185
E-mail: mcurran@mmcec.com
SPORTS WAREHOUSE: Solter Appeals Order Compelling Arbitration
-------------------------------------------------------------
Plaintiff Erik Solter filed an appeal from a court ruling entered
in the lawsuit entitled ERIK SOLTER, and LORNE BULLING,
individually and on behalf of all others similarly situated,
Plaintiffs v. SPORTS WAREHOUSE, a California corporation d/b/a
TENNIS WAREHOUSE; RUNNING WAREHOUSE, LLC; WILDERNESS SPORTS
WAREHOUSE LLC d/b/a TACKLE WAREHOUSE; and SKATE WAREHOUSE, LLC,
Defendants, Case No. 2:22-cv-00460-ODW-JEM, in the U.S. District
Court for the Central District of California, Riverside.
The Plaintiffs filed this complaint on January 21, 2022, seeking to
remedy the harms on behalf of themselves and all similarly situated
individuals whose payment card information or personal identifiable
information was stolen in the data breach. The Plaintiffs seek
remedies including reimbursement of out-of-pocket losses,
compensation for time spent in response to the Data Breach and
other types of harm, free credit monitoring and identity theft
insurance, and injunctive relief involving substantial improvements
to Defendants' card payment data security systems.
The Plaintiffs brought this action individually and on behalf of
the Class and seek actual damages, statutory damages, punitive
damages, and restitution, with attorneys' fees, costs, and
expenses, and further sue Defendants for, among other causes of
action, negligence, breach of implied contract, unjust enrichment,
and California and Oregon consumer statutes. Plaintiffs also seek
declaratory and injunctive relief, including significant
improvements to Defendants' data security systems and protocols,
future annual audits, Defendant-funded long-term credit monitoring
services, and other remedies as the Court deems necessary and
proper.
As reported in the Class Action Reporter on Oct. 28, 2022, the U.S.
District Court for the Central District of California entered an
order granting the Defendants' Motion to Compel Arbitration and
dismissing the Plaintiffs' individual and putative class claims in
these seven related actions without prejudice:
a. Patrick v. Running Warehouse, No. 2:21-cv-09978-ODW (JEMx);
b. Buffington v. Running Warehouse, No. 2:21-cv-09980-ODW
(JEMx);
c. Arcilla v. Wilderness Sports Warehouse,
No. 5:22-cv-00012-ODW (JEMx);
d. Gasnick v. Running Warehouse, No. 2:22-cv-00101-ODW (JEMx);
e. Pfeffer v. Wilderness Sports Warehouse,
No. 2:22-cv-00297-ODW (JEMx);
f. Solter v. Sports Warehouse, No. 2:22-cv-00460-ODW (JEMx);
and
g. Hargrove v. Wilderness Sports Warehouse,
No. 2:22-cv-01716-ODW (JEMx).
Judge Wright found that (i) incorporation of alternative dispute
resolution services provider JAMS Inc. arbitration rules
constitutes clear and unmistakable evidence that the parties
intended to delegate arbitrability, regardless of whether the
parties are "sophisticated"; (ii) a clause prohibiting an
arbitrator from issuing a public injunction is invalid and
unenforceable; (iii) Running's website provided sufficient
information to put Arcilla on inquiry notice; and (iv) the
Plaintiffs fail to establish that the Terms are substantively
unconscionable and Plaintiffs' unconscionability argument
necessarily fails.
The Plaintiffs seek a review of this order.
The appellate case is captioned as Erik Solter, et al. v. Running
Warehouse, LLC, et al., Case No. 22-56086, in the United States
Court of Appeals for the Ninth Circuit, filed on Nov. 21, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellants Lorne Bulling and Erik Solter Mediation
Questionnaire was due on November 28, 2022;
-- Transcript shall be ordered by December 19, 2022;
-- Transcript is due on January 17, 2023;
-- Appellants Lorne Bulling and Erik Solter opening brief is due
on February 27, 2023;
-- Appellees Running Warehouse, LLC, Sports Warehouse, Inc. and
Wilderness Sports Warehouse, LLC answering brief is due on March
27, 2023; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiffs-Appellants ERIK SOLTER and LORNE BULLING, individually
and on behalf of all others similarly situated, are represented
by:
Lisa Tamiko Omoto, Esq.
FARUQI & FARUQI, LLP
1901 Avenue of the Stars, Suite 1060
Los Angeles, CA 90067
Telephone: (424) 256-2884
Defendants-Appellees RUNNING WAREHOUSE, LLC, a California limited
liability company; WILDERNESS SPORTS WAREHOUSE, LLC, a California
limited liability company, DBA Tackle Warehouse; and SPORTS
WAREHOUSE, INC., a California corporation, DBA Tennis Warehouse,
are represented by:
Benjamin O. Aigboboh, Esq.
P. Craig Cardon, Esq.
Jay T. Ramsey, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON, LLP
333 S Hope Street 43rd Floor
Los Angeles, CA 90071-1448
Telephone: (310) 228-3700
STANFORD: Collier Appeals Ruling in Civil Rights Suit
-----------------------------------------------------
Plaintiff IRINA COLLIER filed an appeal from a court ruling entered
in the lawsuit entitled IRINA COLLIER, on behalf of herself and all
others similarly situated, Plaintiff v. PRESIDENT OF STANFORD, et
al., Defendants, Case No. 4:22-cv-05375-KAW, in the United States
District Court for the Northern District of California.
As reported in the Class Action Reporter, the suit, filed on
September 19, 2022, is a class action against the Defendants for
violation of freedom of speech under the First Amendment of the
U.S. Constitution.
On September 30, 2022, Judge Kandis A. Westmore signed an Order
granting an application to proceed in forma pauperis; and a Report
and Recommendation to dismiss and reassign the case using a
proportionate, random, and blind system pursuant to General Order
No. 44 to Judge Yvonne Gonzalez Rogers for all further
proceedings.
The Plaintiff seeks a review of this ruling.
The appellate case is captioned as Collier v. President of
Stanford, Case No. 23-1185, in the U.S. Court of Appeals for the
Federal Circuit, filed on Nov. 23, 2022.
The Plaintiff appears pro se.[BN]
SUTTER VALLEY: Tinnin Seeks to Certify Class
---------------------------------------------
In the class action lawsuit captioned as KRISTEENA TINNIN, on
behalf of herself and all others similarly situated, v. SUTTER
VALLEY MEDICAL FOUNDATION and DOES 1 through 20, inclusive, Case
No. 1:20-cv-00482-JLT-EPG (E.D. Cal.), the Plaintiff asks the Court
to enter an order certifying the following plaintiff classes
pursuant to Rule 23 of the Federal Rules of Civil Procedure:
-- Meal Break Class
"All persons who are or have been employed by Sutter
Valley Medical Center in the State of California since
April 2, 2016, who worked as non-exempt employees and whose
time and pay records show late, short, or missing meal
periods;" and
-- California Unpaid Time Class
"All persons who are or have been employed by Sutter Valley
Medical Center in the State of California since April 2,
2016, who worked as non-exempt employees and whose time and
pay records show unpaid time as a result of rounding."
The Plaintiff also moves for conditional certification, under the
Fair Labor Standards Act ("FLSA") of the following FLSA
Collective:
-- FLSA Collective
"All persons who are or have been employed by Sutter Valley
Medical Center in the State of California since April 2,
2017, who worked as non-exempt employees."
Sutter Medical provides healthcare services.
A copy of the Plaintiff's motion to certify classes dated Dec. 5,
2022 is available from PacerMonitor.com at https://bit.ly/3VEnwTK
at no extra charge.[CC]
The Plaintiff is represented by:
Stan S. Mallison, Esq.
Hector R. Martinez, Esq.
Daniel C. Keller, Esq.
MALLISON & MARTINEZ
1939 Harrison Street, Suite 730
Oakland, CA 94612-3547
Telephone: (510) 832-9999
Facsimile: (510) 832-1101
E-mail: StanM@TheMMLawFirm.com
HectorM@TheMMLawFirm.com
DKeller@TheMMLawFirm.com
T.J. MAXX OF CA: Gancinia Suit Removed to E.D. California
---------------------------------------------------------
The case captioned as Roxan Gancinia, on behalf of herself and all
others similarly situated, and on behalf of the general public v.
T.J. MAXX OF CA, LLC, a Virginia Limited Liability Company, and
DOES 1 through 10, inclusive, Case No. STK-CV-UOE-2022-0009999 was
removed from the Superior Court of the State of California, County
of San Joaquin, to the United States District Court for the Eastern
District of California on Dec. 5, 2022, and assigned Case No.
2:22-at-01231.
The Complaint asserts the following causes of action: Failure to
Provide Meal Periods in Violation of Labor Code; Failure to Provide
Rest Periods in Violation of Labor Code; Failure to Pay All Wages
in Violation of Labor Code; Knowing and Intentional Failure to
Comply with Itemized Employee Wage Statement Provisions Labor Code;
Failure to Timely Pay Wages Due at Termination Labor Code; Failure
to Timely Pay Employees in Violation of Labor Code; Failure to
Reimburse for Business Expenses in Violation of Labor Code; Failure
to Pay for All Hours Worked, Including Overtime Hours Worked in
Violation of Labor; Failure to Provide Place of Employment that is
Safe and Healthful in Violation of Labor Code; Violation of
Business and Professions Code.[BN]
The Defendants are represented by:
Bradley E. Schwan, Esq.
Jannine E. Kranz, Esq.
LITTLER MENDELSON, P.C.
2049 Century Park East, 5th Floor
Los Angeles, CA 90067.3107
Phone: 310.553.0308
Fax: 310.553.5583
Email: bschwan@littler.com
jkranz@littler.com
- and -
Brittany L Mccarthy, Esq.
Amanda Fleming, Esq.
LITTLER MENDELSON, P.C.
501 W. Broadway, Suite 900
San Diego, CA 92101.3577
Phone: 619.232.0441
Fax: 619.232.4302
Email: blmccarthy@littler.com
afleming@littler.com
TEAM ENTERPRISES: Court Modifies Briefing Schedule in Cipolla
-------------------------------------------------------------
In the class action lawsuit captioned as FELICIA CIPOLLA, ALEXIS
WOOD, BERNADETTE BLANCHARD, and SHIRIN LESSAN individually and on
behalf of all others similarly situated, v. TEAM ENTERPRISES, LLC;
NEW TEAM LLC, doing business as TEAM ENTERPRISES, Case No.
3:18-cv-06867-WHA (N.D. Cal.), the Hon. Judge William Alsup entered
an order modifying the briefing schedule of the two motions as
follows:
1. Estoppel Motion
-- Motion Deadline: Dec. 14, 2022
-- Opposition Deadline: Jan. 9, 2023
-- Reply Deadline: Jan. 27, 2023
2. New Class Certification Motion
-- Motion Deadline: Jan. 9, 2023
-- Opposition Deadline: Jan. 23, 2023
-- Reply Deadline: Jan. 30, 2023
On October 19, 2022, the Court held a hearing and directed
Plaintiffs to amend their Second Amended Complaint to add a new
class representative who was a party to an arbitration agreement
implemented by Defendants in February 2019, and to file a new
motion for class certification covering individuals subject to that
arbitration agreement.
On October 19, 2022, the Court directed Plaintiffs to file a second
motion with respect to all people who entered into the same
arbitration agreement entered into by the Named Plaintiffs on the
issue of whether Defendants are estopped from asserting arbitration
with respect to anyone else subject to that agreement.
The Court permitted Defendants to depose any new named class
representative. The Court ordered that Plaintiffs' two motions be
filed by December 14, 2022, and thus Defendants' Oppositions would
be due on December 28, 2022, and Plaintiffs' replies
would be due on January 4, 2023.
The Plaintiffs have diligently worked to identify new class
representative(s) to add to an amended complaint for purposes of
the first motion but have not yet definitively selected a new class
representative and drafted an amended complaint for review and
stipulation to by the Defendants.
Team Enterprises was founded in 2010. The company's line of
business includes providing plumbing, heating, air-conditioning,
and similar work.
A copy of the Parties' motion dated Dec. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3HbdaXf at no extra charge.[CC]
The Plaintiff is represented by:
Edward J. Wynne, Esq.
WYNNE LAW FIRM
- and -
Bryan J. McCormack, Esq.
MCCORMACK LAW FIRM
The Defendant is represented by:
William Hays Weissman, Esq.
Yesenia Garcia Perez, Esq.
LITTLER MENDELSON P.C.
TIVITY HEALTH: Revised Order on Pension Fund Class Cert. Sought
---------------------------------------------------------------
In the class action lawsuit captioned as ROBERT STROUGO,
Individually and on Behalf of All Others Similarly Situated, v.
TIVITY HEALTH, INC., et al., Case No. 3:20-cv-00165 (M.D. Tenn.),
the Plaintiff asks the Court to enter an order issuing a revised
order on Plaintiff Sheet Metal Workers Local No. 33, Cleveland
District, Pension Fund's Motion for Class Certification.
On October 26, 2021, the Plaintiff moved this Court for an order
certifying this matter as a class action pursuant to Rule 23(a) and
(b)(3) of the Federal Rules of Civil Procedure, appointing Lead
Plaintiff as Class Representative and approving its selection of
Robbins Geller Rudman & Dowd LLP as Class Counsel.
On November 30, 2021, the Defendants filed an Opposition to
Plaintiff's Motion for Class Certification, requesting that the
Court deny Plaintiff's Motion for Class Certification.
On November 30, 2021, Defendants moved this Court to schedule an
evidentiary hearing on Plaintiff's Motion for Class Certification
concerning Plaintiff's motion and Defendants'
opposition thereto.
On January 24, 2022, the Plaintiff filed a Reply Brief in Support
of Class Certification.
On March 9, 2022, the Court held an evidentiary hearing on
Plaintiff's Motion for Class Certification.
On April 8, 2022, the Plaintiff and Defendants both filed
Supplemental Briefs concerning Plaintiff's Motion for Class
Certification.
On June 7, 2022, this Court issued an Order granting Plaintiff's
Motion for Class Certification.
On June 22, 2022, Defendants petitioned the United States Court of
Appeals for the Sixth Circuit for permission to appeal this Court's
Order granting Plaintiff's Motion for Class Certification.
On November 21, 2022, the United States Court of Appeals for the
Sixth Circuit issued an Order granting Defendants' petition for
permission to appeal. The Order held that this Court failed to
analyze the Rule 23(a) factors, vacated this Court's Order, and
remanded to this Court for further proceedings.
Tivity Health is a provider of health improvement, fitness and
social engagement solutions.
A copy of the Plaintiff's motion to certify class dated Dec. 5,
2022 is available from PacerMonitor.com at https://bit.ly/3iJ84Y3
at no extra charge.[CC]
The Plaintiff is represented by:
Christopher M. Wood, Esq.
Shawn A. Williams, Esq.
Snehee Khandeshi, Esq.
Darren J. Robbins, Esq.
David W. Mitchell, Esq.
Sara B. Polychron, Esq.
Caroline M. Robert, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
414 Union Street, Suite 900
Nashville, TN 37219
Telephone: (615) 244-2203
Facsimile: (615) 252-3798
E-mail: cwood@rgrdlaw.com
hbator@rgrdlaw.com
darrenr@rgrdlaw.com
dmitchell@rgrdlaw.com
spolychron@rgrdlaw.com
crobert@rgrdlaw.com
- and -
Jerry E. Martin, Esq.
BARRETT JOHNSTON MARTIN & GARRISON, LLC
Bank of America Plaza, 414 Union Street, Suite 900
Nashville, TN 37219
Telephone: (615) 244-2202
Facsimile: (615) 252-3798
E-mail: jmartin@barrettjohnston.com
- and -
Michael E. Heffernan, Esq.
ALLOTTA FARLEY CO., L.P.A.
2222 Centennial Road
Toledo, OH 43617
Telephone: (419) 535-0075
Facsimile: (419) 535-1935
E-mail: mheffernan@allottafarley.com
TOYWIZ INC: Rhone Files ADA Suit in S.D. New York
-------------------------------------------------
A class action lawsuit has been filed against Toywiz, Inc. The case
is styled as Tonimarie Rhone, on behalf of herself and all others
similarly situated v. Toywiz, Inc., Case No. 1:22-cv-10306
(S.D.N.Y., Dec. 6, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Toywiz, Inc. -- https://toywiz.com/ -- offers toys, action figures,
plush & trading card games.[BN]
The Plaintiff is represented by:
Noor H. Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
TRUMP CORP: Plaintiffs Must File Class Cert Bid by Feb. 24, 2023
----------------------------------------------------------------
In the class action lawsuit captioned as CATHERINE MCKOY, et al.,
v. THE TRUMP CORPORATION, et al., Case No. 1:18-cv-09936-LGS-SLC
(S.D.N.Y.), the Hon. Judge Lorna G. Schofield entered an order
that:
-- The Plaintiffs shall file the Feb. 24, 2023
motion by:
-- The Defendants shall file any March 24, 2023
Memorandum of Law in
Opposition by:
-- The Plaintiffs shall file a April 7, 2023
Reply by:
-- A pre-motion conference will May 3, 2023
be held on:
On November 22, 2022, the Plaintiffs filed a second letter amending
their request for a trial date, due to an Order issued in People of
the State of New York v. Donald J. Trump, Case No. 452564/2022
(Sup. Ct. N.Y. Cnty.), setting a trial date in that case for
October 2, 2023.
On November 30, 2022, the Defendants filed a letter opposing both
requests.
The Trump Organization is a group of about 500 business entities of
which Donald Trump is the sole or principal owner.
A copy of the Court's order dated Dec. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3VDG6vd at no extra charge.[CC]
UBER TECHNOLOGIES: Ninth Cir. Affirms Fee Award in McKnight Suit
----------------------------------------------------------------
In the cases, BYRON McKNIGHT; JULIAN MENA; TODD SCHREIBER; NATE
COOLIDGE; ERNESTO MEJIA, individually and on behalf of all others
similarly situated, Plaintiffs-Appellees v. JENNIFER HINOJOSA,
Objector-Appellant v. UBER TECHNOLOGIES, INC., a Delaware
Corporation; RASIER, LLC, a Delaware Limited Liability Company,
Defendants-Appellees. BYRON McKNIGHT; JULIAN MENA; TODD SCHREIBER;
NATE COOLIDGE; ERNESTO MEJIA, individually and on behalf of all
others similarly situated, Plaintiffs-Appellees v. GORDON B.
MORGAN, Objector-Appellant v. UBER TECHNOLOGIES, INC., a Delaware
Corporation; RASIER, LLC, a Delaware Limited Liability Company,
Defendants-Appellees. BYRON McKNIGHT; JULIAN MENA; TODD SCHREIBER;
NATE COOLIDGE; ERNESTO MEJIA, individually and on behalf of all
others similarly situated, Plaintiffs-Appellees v. ROBERT HUDSON,
Objector-Appellant v. UBER TECHNOLOGIES, INC., a Delaware
Corporation; RASIER, LLC, a Delaware Limited Liability Company,
Defendants-Appellees, Case Nos. 21-16623, 21-16625, 21-16626 (9th
Cir.), the U.S. Court of Appeals for the Ninth Circuit affirms the
district court's fee award.
In this consolidated appeal, the Ninth Circuit considers whether a
class action settlement is a "coupon settlement" and therefore
subject to the restrictions on the award of attorney fees to class
counsel imposed by the Class Action Fairness Act ("CAFA"), 28
U.S.C. Section 1712.
In the underlying case, McKnight and other Plaintiffs-Appellees
("Plaintiffs") represent a class that brought breach of contract
and consumer law claims against Uber Technologies, Inc. and Rasier,
LLC ("Uber") alleging Uber misrepresented "its 'Safe Rides Fee' and
the safety measures, background checks, and other efforts it takes
to provide safety for its customers."
The parties reached an initial settlement in early 2016. However,
the district court found that the proposed class included Uber
customers who had not been charged the allegedly misrepresented fee
and that the proposed settlement failed to distribute funds
appropriately to class members. The district court therefore denied
both certification of the proposed class and preliminary approval
of the proposed settlement.
The parties reached a revised settlement in June 2017 (the
"Settlement"). In August 2017, the district court granted
preliminary approval and certified a settlement class of
approximately 22.4 million members -- essentially anyone who used
Uber ridesharing services in the United States between Jan. 1, 2013
and Jan. 31, 2016 and was charged a Safe Rides Fee. Iurt granted
final approval of the Settlement in August 2019.
The Settlement provides both monetary and injunctive relief. Uber
will pay $32.5 million into a "non-reversionary settlement fund."
The class members will receive $0.25 from the fund for the first
Safe Rides Fee they were charged and $0.05 for each subsequent fee.
The average class member is expected to receive $1.07.
Settlement funds will be paid out to the class members in several
ways and stages. First, the class members had the option to submit
a claim form and receive their share in cash, via PayPal or eCheck.
Out of more than 22 million estimated class members, only 82,375
submitted a claim form by the deadline and elected this up-front
cash payment. Second, any class member who has an Uber account and
did not submit a claim form for an up-front cash payment will have
their Settlement share credited to their Uber account. If a class
member no longer has an Uber account, that share will be
distributed cy pres to the National Consumer Law Center.
Third, after one year, Uber will make a one-time attempt to remit
any unused credit, minus an estimated $0.07 transaction fee charged
by the payment processor, to the class member's payment account on
file with Uber. Three days before attempting this payment, the
settlement administrator will email a notice to all class members
who have not redeemed their credit. The notice will inform the
class member of the need for accurate and current credit card or
other payment account information for the attempted payment to
succeed. Finally, any leftover Settlement funds that are not
distributed to class members will be distributed cy pres to the
National Consumer Law Center.
As for injunctive relief, the Settlement prohibits Uber from
charging a Safe Rides Fee and generally limits the representations
Uber may make as to its driver background check policies and the
safety of its services.
In its August 2019 order granting final approval to the Settlement,
the district court stated "the settlement is sufficiently
coupon-like to warrant application of 28 U.S.C. Section 1712."
Because the Plaintiffs' first motion for attorney fees did not
comply with CAFA's restrictions on the calculation of fee awards in
coupon settlements, the district court ordered the Plaintiffs to
file an amended motion for fees.
After further briefing, the district court concluded "hat it erred
in its previous order in determining that the Settlement is a
coupon settlement for two reasons. First, the court stated it had
previously over-emphasized the small size of the average award and
under-emphasized the availability of the cash option.
Reconsidering, the district court found "there was nothing coercive
about the amount of the credit" because "class members could have
chosen to receive cash instead of a coupon." Second, the district
court decided it had erred by considering that few class members
would take the time to submit a claim due to the small size of the
average award. This fact "may have some bearing on the fairness and
adequacy of the settlement," the district court reasoned, "but it
is irrelevant to the coupon analysis because the Court already
determined that the amount itself represented a reasonable
compromise."
Having held that CAFA's attorney fee restrictions did not apply,
the district court reconsidered the Plaintiffs' first fee request
"unburdened by the coupon requirements of CAFA." The Plaintiffs had
requested $8.125 million in fees -- 25% of the face value of the
fund and a 4.14 multiplier on their lodestar of $1,961,905. The
district court, applying the percentage-of-fund method, granted
fees but reduced the award to $5,689,440, which is approximately
17.5% of the face value of the fund and 2.9 times the lodestar. The
district court also awarded the Plaintiffs their costs.
Three objectors to the Settlement now appeal the district court's
fee award. The Objector-Appellants principally contend the district
court erred by not applying CAFA's attorney fee provisions. They
also argue the district court abused its discretion in several ways
when calculating the award.
The Ninth Circuit reviews the applicability of CAFA's coupon
provisions to a class action settlement agreement de novo. It
concludes the Settlement is not a coupon settlement. It holds that
the district court correctly concluded that the Settlement was not
a coupon settlement within the meaning of CAFA, and did not abuse
its discretion in making the fee award.
The Ninth Circuit finds that (i) the class members do not need to
spend out of pocket to redeem their relief; (ii) the credit is
valid only for Uber services; and (iii) the reversionary cash
payment provides a flexible alternative to using the credits, and
structuring the payment in this fashion saves administrative
expense. For these reasons, the district court did not err in
concluding that the Settlement was not a coupon settlement within
the meaning of CAFA. To be sure, the amounts to be distributed are
modest, even minuscule. However, the amount paid in settlement is
properly the subject of a fairness hearing; unless the amount is
disproportionate to the actual value, it is not determinative of
whether the Settlement is a coupon settlement or not.
The Ninth Circuit further finds that district court did not abuse
its discretion in calculating class counsel's fee award. The
district court did not otherwise abuse its discretion in making the
fee award. It finds that (i) the second, and final, settlement
merely amended the first, so the hours spent negotiating the first
settlement were not redundant or unnecessary; and (ii) the district
court reduced the fee award below the 25% benchmark because of the
modest degree of success and because it found awarding the 25%
benchmark would have overcompensated class counsel compared to
their lodestar.
In sum, the Ninth Circuit opines that the district court correctly
concluded that the Settlement was not a coupon settlement within
the meaning of CAFA, and did not abuse its discretion in making the
fee award. It need not, and does not, reach any other issue urged
by the parties. Accordingly, it affirms.
A full-text copy of the Court's Nov. 30, 2022 Opinion is available
at https://tinyurl.com/4a28e9tu from Leagle.com.
Theodore W. Maya -- tmaya@ahdootwolfson.com -- (argued) and Robert
R. Ahdoot -- rahdoot@ahdootwolfson.com -- Ahdoot & Wolfson PC,
Burbank, California; Alredo Torrijos -- alfredo@asstlawyers.com --
Arias Sanguinetti Stahle & Torrijos LLP, Los Angeles, California,
for Plaintiffs-Appellees Byron McKnight, Julian Mena, Todd
Schreiber, Nate Coolidge, and Ernesto Mejia.
N. Albert Bacharach Jr. -- n.a.bacharach@att.net -- (argued), N.
Albert Bacharach Jr., Gainesville, Florida, for Objector-Appellant
Jennifer Hinojosa.
Michael David Harbour -- mharbour@irell.com -- (argued), Irell &
Menalla LLP, Los Angeles, California; A. Matthew Ashley --
mashley@irell.com -- and Andra Barmash Greene -- agreene@irell.com
-- Irell & Manella LLP, Newport Beach, California, for the
Defendants-Appellees.
UMASS MEMORIAL: Doe Wiretapping Suit Removed to D. Mass.
--------------------------------------------------------
The case JOHN DOE, individually and on behalf of all others
similarly situated, Plaintiff v. UMASS MEMORIAL HEALTH CARE, INC,
Defendant, Case No. 2285CV01205D, was removed from the the Superior
Court of the Commonwealth of Massachusetts for the County of
Worcester to the United States District Court for the District of
Massachusetts on Nov. 28, 2022.
The Clerk of Court for the District of Massachusetts assigned Case
No. 1:22-cv-12022 to the proceeding.
The Plaintiff's complaint purports to challenge UMass Memorial's
routine on-line practices as various invasions of privacy, illegal
wiretapping, and breach of contract.
UMass Memorial Health Care, Inc. provides health care services. The
Company offers primary care, hospice, cancer care, radiology and
imaging, surgery, women's health, orthopedics, and rehabilitation
facility. UMass Memorial Health Care serves students in the State
of Massachusetts.[BN]
The Defendant is represented by:
James H. Rollinson, Esq.
BAKER & HOSTETLER LLP
127 Public Street Suite 2000
Cleveland, OH 44116
Telephone: (216) 621-0200
Facsimile: (216) 626-0740
E-mail: jrollinson@bakerlaw.com
- and -
Paul G. Karlsgodt, Esq.
BAKER & HOSTETLER LLP
1801 California Street Suite 4400
Denver, CO 80202-2662
Telephone: (303) 764-4013
Facsimile: (303) 861-7805
E-mail: pkarlsgodt@bakerlaw.com
- and -
Elizabeth A. Scully, Esq.
BAKER & HOSTETLER LLP
Washington Square, Suite 1100
1050 Connecticut Avenue, N.W.
Washington, DC 20036-5304
Telephone: (202) 861-1500
Facsimile: (202) 861-1783
E-mail: escully@bakerlaw.com
UNITED STATES: Tanner-Brown Files Appeal to D.C. Cir.
-----------------------------------------------------
Plaintiffs Leatrice Tanner-Brown, et al., filed an appeal from a
District Court's October 28, 2022 Order entered in the lawsuit
entitled LEATRICE TANNER-BROWN, et al., Plaintiffs v. DEBRA
HAALAND, Secretary of the Interior, et al., Defendants, Civil
Action No. 21-565 (RC), in the United States District Court for the
District of Columbia.
Plaintiffs Leatrice Tanner-Brown and the Harvest Institute Freedman
Federation, LLC ("HIFF") filed this putative class action against
Defendants Debra Haaland, the Secretary of the United States
Department of the Interior ("Interior Department"), and Bryan Todd
Newland, the Assistant Secretary for Indian Affairs at the Interior
Department, in their official capacities, seeking an accounting
relating to alleged breaches of fiduciary duties concerning land
allotted to the minor children of former slaves of Native American
tribes.
On Sept. 15, 2021, the Defendants filed a Motion to Dismiss,
arguing that, among other things, the Plaintiffs lacked Article III
standing. The Court held that the Plaintiffs lacked standing
because they failed to allege a concrete, particularized injury
fairly traceable to the Secretary's action.
On Aug. 5, 2022, the Plaintiffs filed their Motion to Alter or
Amend Judgment that is at issue. Through their motion, they sought
to clarify their alleged injury. According to them, the injury that
gives rise to their standing is not the Secretary's "alleged
mismanagement of the trust," but her failure to provide the
requested accounting. Additionally, because the Plaintiffs failed
to move to certify their class within the required time period,
they have also filed a Motion for Leave to File a Class Action
Motion. The Plaintiffs argued that the Court should alter or amend
its judgment because it ignored settled principles of trust law in
its July 8, 2022, dismissal order. Specifically, they contended
that they cannot assert an injury sufficient to establish standing
because a trust beneficiary must first receive an accounting before
determining whether a trust has been mismanaged.
As reported in the Class Action Reporter, Judge Rudolph Contreras
of the U.S. District Court for the District of Columbia denied the
Plaintiffs' Motion to Alter or Amend Judgment and denied as moot
their Motion for Leave to File Class Action Motion.
Judge Contreras rejected Plaintiffs' arguments because they fail to
show that the 1908 Act creates a trust relationship between them
and the Secretary of the Interior. Section 6 does not impose a duty
on the Secretary of the Interior to provide minor allottees with an
accounting, for at least two reasons. First, the language of the
statute suggests that the Secretary's duties are discretionary.
Second, even if the statute imposes an affirmative obligation on
the Secretary to oversee the minor allottees in some capacity, it
does not create a trust relationship, ruled the Court.
The Plaintiffs seek a review of the order by Judge Contreras.
The appellate case is captioned as Leatrice Tanner-Brown, et al. v.
Debra Haaland, et al., Case No. 22-5302, in the United States Court
of Appeals for the District of Columbia Circuit, filed on November
21, 2022.
The briefing schedule in the Appellate Case states that:
-- APPELLANT docketing statement is due on December 21, 2022;
-- APPELLANT certificate as to parties is due on December 21,
2022;
-- APPELLANT statement of issues is due on December 21, 2022;
-- APPELLANT underlying decision is due on December 21, 2022;
-- APPELLANT deferred appendix statement is due on December 21,
2022;
-- APPELLANT entry of appearance is due on December 21, 2022;
-- APPELLANT transcript status report is due on December 21,
2022;
-- APPELLANT procedural motions is due on December 21, 2022;
-- APPELLANT dispositive motions is due on January 5, 2023;
-- Directing party to file initial submissions: APPELLEE
certificate as to parties is due on December 21, 2022;
-- APPELLEE entry of appearance is due on December 21, 2022;
-- APPELLEE procedural motions is due on December 21, 2022; and
-- APPELLEE dispositive motions is due on January 5, 2023.
Plaintiffs-Appellants Leatrice Tanner-Brown, personal
Representative of the Estate of George W. Curls, Sr., and of the
class of similarly situated individuals; and Harvest Institute
Freedmen Federation, LLC, on behalf of itself and all persons
similarly situated, are represented by:
Percy Squire, Esq.
PERCY SQUIRE CO., LLC
341 S. 3rd Street Suite 10
Columbus, OH 43215-7426
Telephone: (614) 224-6528
Defendants-Appellees Debra A. Haaland, Secretary of the Interior;
and Tara Maclean Sweeney, Assistant Secretary Indian Affairs, are
represented by:
DOJ Appellate Counsel, Esq.
U.S. DEPARTMENT OF JUSTICE
950 Pennsylvania Avenue, NW
Washington, DC 20530
Telephone: (202) 514-2000
URS MIDWEST: Bid to Strike Lewin Declaration Denied in Rodriguez
----------------------------------------------------------------
In the class action lawsuit captioned as Israel Rodriguez v. URS
Midwest, Inc. et al, Case No. 5:20-cv-02365-JWH-SP (C.D. Cal.), the
Hon. Judge John W. Holcomb entered an order that:
1. The Defendants' ex parte application to strike the Lewin
Declaration is denied.
2. The Defendants' ex parte application to file a sur-reply
is granted.
3. The sur-reply must be filed on or before December 16,
2022.
4. On its own motion, the Court resets the hearing on the
Motion for Class Certification to January 6, 2023.
The Court concludes that the Defendants' request to strike the
Lewin Declaration, however, is premature. Motions to strike under
Daubert are typically heard in conjunction with a class
certification motion. As such, the Court will refrain from
determining at this juncture whether the Lewin Declaration passes
muster under Daubert.
Regardless of the appropriate timing for a Daubert motion, the
Court notes that "[it is improper for a moving party to introduce
new facts or different legal arguments in the reply brief than
those presented in the moving papers."
Rodriguez contends that the untimely inclusion of the Lewin
Declaration in his reply brief is not prejudicial to Defendants
because it concerns a proposed survey that will be used to
calculate damages post-certification. In essence, in his opposition
to the Application, Rodriguez casts the Lewin Declaration as
completely irrelevant at this juncture.
URS Midwest was founded in 1998. The company's line of business
includes the arranging of transportation of freight and cargo.
A copy of the Court's order dated Dec. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3F6qmtK at no extra charge.[CC]
UTILITIES EMPLOYEES: Gordner Files Suit in Pa. Ct. of Common Pleas
------------------------------------------------------------------
A class action lawsuit has been filed against Utilities Employees
Credit Union. The case is styled as Terra Gordner, all others
similarly situated v. Utilities Employees Credit Union, Case No. 22
16168 (Pa. Ct. of Common Pleas, Berks Cty., Dec. 5, 2022).
Utilities Employees Credit Union -- https://uecu.org/ -- operates
as a financial cooperative. The Union provides financial solutions
such as saving and checking accounts, loans, investment, credit and
debit cards, insurance, ATMs, online banking, and other related
services.[BN]
The Plaintiff is represented by:
Kenneth J. Grunfeld, Esq.
GOLOMB SPIRIT GRUNFELD
1835 Market Street, Suite 2900
Philadelphia, PA 19103
Phone: 215.278.4449
VBIT TECHNOLOGIES: Eichler Files Suit in D. Delaware
----------------------------------------------------
A class action lawsuit has been filed against VBIT Technologies
Corp., et al. The case is styled as Michael Eichler, and all other
similarly situated individuals v. VBIT Technologies Corp., VBit
Mining LLC, Advanced Mining Group, Danh Cong Vo also known as: Don
Vo, Phuong D Vo also known as: Katie vo, Sean Tu, Jin Gao, John Doe
Individuals 1-10, ABC Companies 1-10, Case No. 1:22-cv-01574-UNA
(D. Del., Dec. 6, 2022).
The nature of suit is stated as Racketeer/Corrupt Organization for
Racketeering (RICO) Act.
VBit Technologies -- https://vbittech.com/ -- sells bitcoin mining
hardware and offers mining equipment hosting.[BN]
The Plaintiff is represented by:
Michael Patrick Minuti, Esq.
MCCANN & WALL LLC
300 Delaware Ave., Suite 805
Wilmington, DE 19801
Phone: (302) 888-1221
Email: mminuti@mccannwallinjurylaw.com
VENICE HMA: Bid to Stay Discovery in White Class Action Junked
--------------------------------------------------------------
In the class action lawsuit captioned as CALLIE WHITE, RITA
KENT,CATHERINE CLOUTIER and MARITZA SAAVEDRA, v. VENICE HMA, LLC
and VENICE HMA HOLDINGS, LLC, Case No. 8:22-cv-01989-CEH-AEP (M.D.
Fla.), the Hon. Judge Charlene Edwards Honeywell entered an order
denying the Defendants' motion to stay discovery and class
certification briefing pending resolution of the Defendants' motion
to dismiss Plaintiffs' First Amended Complaint.
The Defendants do not show that unusual circumstances justify the
requested stay, that prejudice or an undue burden will result if
the Court does not impose a stay, or that a stay is reasonable and
necessary in this action. The pendency of the motion to dismiss, by
itself, does not supply good cause or reasonableness for the
requested stay.
On August 25, 2022, Plaintiffs and the putative class members were
notified that their location of employment, ShorePoint Venice
Hospital, would close on September 22, 2022.
The Plaintiffs allege that their termination violated the Worker
Adjustment and Retraining Notification ("WARN") Act, which requires
employers to provide 60 days' advance notice to employees who are
laid off as the result of a plant closing or mass layoff.
The Plaintiffs also allege that Defendant failed to provide 60
days' notice of the closure, it was foreseeable as early as April
2022. They further allege that the closure resulted in the
employment loss of approximately 600 people, including the
Plaintiffs.
Accordingly, Defendants ask the Court to stay the action until the
motion is resolved, so that Defendants are spared the expense of
discovery and class certification briefing.
Venice HMA, doing business as Venice Regional Bayfront Health,
provides health care services.
A copy of the Court's order dated Dec. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3F4fNHL at no extra charge.[CC]
VERTICAL STAFFING: Balbin Sues Over Breach of Contract
------------------------------------------------------
Michael Balbin, Mila Alcyone Cruz, Rova Lyn Cruz, and Prudencio S.
Del Mundo, Jr., individually and on behalf of all others similarly
situated v. VERTICAL STAFFING CORPORATION d/b/a Vertical Staffings,
and DAN JEFFREY SAMONTE, Case No. 1:22-cv-07332 (E.D.N.Y., Dec. 2,
2022), is brought for damages, injunctive relief, declaratory
relief, and other remedies for violations of the Trafficking
Victims Protection Act and for breach of contract under New York
law.
The Defendants' standard employment contract contains a penalty
designed to keep Filipino health care professionals working for
them and their clients, including a vague damages clause that they
use to convince the foreign workers that they must pay a $25,000.00
"buyout fee" in order to be freed from their employment contracts.
While the Defendants characterize the $25,000.00 "buyout fee" as
compensation for damages, there is no basis for this claim. The
Filipino health care professionals are required to pay their own
immigration, travel, and housing costs and fees, including the
Defendants' attorneys' fees.
Once the Filipino health care professionals begin working in the
United States, the Defendants breach their contracts and the
employment laws, including by failing to pay the prevailing wages
and benefits required by their contracts. To keep the foreign
health care professionals from leaving, the Defendants threaten
them with serious harm, including threats that they will be sued
for the $25,000.00 "buyout fee."
On behalf of themselves and all other Filipino health care
professionals who have been employed by the Defendants since
December 2, 2012, the Plaintiffs seek judgment against each
Defendant, jointly and severally, for: compensatory and punitive
damages for violations of the TVPA; compensatory damages for breach
of contract; pre- and post-judgment interest at the statutory rate
of 9% on all damages awarded for violations of New York laws; an
injunction prohibiting the Defendants from threatening to enforce
or enforcing the baseless "buyout fee" claim; a declaration that
the "buyout fee" is unenforceable under the TVPA, the Anti-Peonage
Law, and New York law; an award of reasonable attorneys' fees and
costs; and such other relief as the Court deems just and proper,
says the complaint.
The Plaintiffs have been employed by the Defendants.
The Defendants are foreign labor recruiters who recruit nurses and
other health care professionals from the Philippines to work for
them in this District under contracts of indentured servitude.[BN]
The Plaintiffs are represented by:
John J.P. Howley, Esq.
THE HOWLEY LAW FIRM P.C.
1345 Avenue of the Americas, 2nd Floor
New York, NY 10105
Phone: (212) 601-2728
VERU INC: Ewing Sues Over False and Misleading Statements
---------------------------------------------------------
Christopher K. Ewing, individually and on behalf of all others
similarly situated v. VERU INC., MITCHELL STEINER, and MICHELE
GRECO, Case No. 1:22-cv-23960-XXXX (S.D. Fla., Dec. 5, 2022), is
brought on behalf of all investors who purchased or otherwise
acquired Defendant Veru Inc. common stock between May 11, 2022,
through November 9, 2022, inclusive (the "Class Period") and on
behalf of the Class for violations of the Securities Exchange Act
of 1934, as a result of the Defendants made false and/or misleading
statements.
Veru "opportunistically" developed sabizabulin (VERU-111), an
orally administered "microtubule disruptor"--a drug that inhibits a
virus' ability to replicate itself--for the treatment of COVID-19
in hospitalized patients at high risk for ARDS. Veru had originally
developed sabizabulin with the intention of using it as a treatment
for prostate cancer. In January 2022, however, the FDA granted
Veru's COVID-19 program Fast Track designation. At the time, there
was no authorized or approved treatment for hospitalized patients
with severe COVID-19 infections.
Throughout the Class Period, the Defendants made false and/or
misleading statements, as well as failed to disclose material
adverse facts about the data from the sabizabulin Phase 3 trial and
the Company's interactions with the FDA. Specifically, Veru misled
its shareholders to believe that the data from the Phase 3 trial
was sufficient to support Emergency Use Authorization ("EUA") and
even the submission of a New Drug Application ("NDA") without any
further studies. VERU's filings therefore concealed the true risks
faced by the Company in gaining approval for its EUA request.
Veru conducted a randomized, double-blind Phase 3 trial of
sabizabulin's effectiveness in treating hospitalized adults with
moderate to severe COVID-19 at high risk for ARDS. The Phase 3
study sought to enroll 210 patients and evaluate mortality after 60
days of treatment. On April 11, 2022, Veru issued a press release
announcing that the company would be terminating sabizabulin's
Phase 3 trial early on the basis of positive interim data, after
Veru's Independent Data Safety Monitoring Committee conducted an
interim analysis of the first 150 patients randomized into the
study. Veru reported that sabizabulin "resulted in a clinically and
statistically meaningful 55% relative reduction in deaths" relative
to the placebo group (45% mortality at 60 days for the placebo
group vs. 20% mortality for the sabizabulin treated group).
On an investor call held that same day, Veru's Chairman, President,
and Chief Executive Officer Mitchell Steiner, M.D. told investors
that Veru had been in "constant dialogue with FDA" since receiving
the Fast Track designation and that the Company "planned to meet
with FDA to discuss the next steps" including submitting an
application for Emergency Use Authorization ("EUA") on the strength
of the positive Phase 3 interim results. Steiner also addressed the
placebo group's 45% mortality rate, stating that this death rate
"underscores how sick these patients really are."
On June 7, 2022, Veru submitted an EUA request with the FDA for use
of sabizabulin to treat COVID-19. On September 7, 2022, the FDA
scheduled an October 6, 2022 meeting of the Pulmonary-Allergy Drugs
Advisory Committee ("AdCom") to vote on whether sabizabulin should
be granted EUA. Although AdCom recommendations are not binding, the
FDA ordinarily follows them. On September 19, 2022, it was
announced that the FDA had postponed the AdCom meeting to November
9, 2022.
On November 9, 2022, the AdCom voted against granting Veru's EUA
request by an 8-5 margin. One AdCom member who voted against
approval explained that there was "no direct evidence to support
sabizabulin's antiviral activity." Veru's stock price plummeted on
the news, falling from its closing price of $15.01 per share on
November 8, 2022 to close at $6.97 per share on November 10, 2022,
a 54% one-day drop, wiping out over $640 million in market
capitalization. As a result of Defendants' wrongful acts and
omissions, and the precipitous decline in the market value of the
Company's securities, the Plaintiff and other Class Members have
suffered significant losses and damages, says the complaint.
The Plaintiff acquired and held shares of the Company at
artificially inflated prices.
Veru is primarily an oncology-based biopharmaceutical company that
develops drugs for the management of breast and prostate cancers.
Veru also develops medicines for COVID-19 and other diseases
related to viral and acute respiratory distress syndrome ("ARDS"),
and has two FDA-approved products for sexual health.[BN]
The Plaintiff is represented by:
Chris Gold, Esq.
EDELSBERG LAW, PA
20900 NE 30th Ave., Suite 417
Aventura, FL 33180
Phone: 786-673-2405
Email: chris@edelsbgerlaw.com
- and -
Scott Edelsberg, Esq.
EDELSBERG LAW, PA
20900 NE 30th Ave., Suite 417
Aventura, FL 33180
Phone: 305-975-3320
Email: scott@edelsberglaw.com
- and -
Jeffrey C. Block, Esq.
Jacob A. Walker, Esq.
BLOCK & LEVITON LLP
260 Franklin St., Suite 1860
Boston, MA 02110
Phone: (617) 398-5600
Fax: (617) 507-6020
Email: jeff@blockleviton.com
jake@blockleviton.com
VICTORY ENTERTAINMENT: Ruling Entered on Ehrenberg's Bid in Limine
------------------------------------------------------------------
In the case, In re: Victory Entertainment Inc., Chapter 7,
Debtor(s). Howard M. Ehrenberg, Plaintiff(s) v. HALA Enterprises,
LLC, Defendant(s), Case No. 1:18-BK-11342-VK, Adv No.
1:20-AP-01056-GM (Bankr. C.D. Cal.), Judge Geraldine Mund of the
U.S. Bankruptcy Court for the Central District of California, San
Fernando Valley Division, issues a tentative ruling on the
Plaintiff's Motion in Limine No. 1 to Exclude the Testimony and
Opinions of Jeremy Salvador, CPA.
At the time that the bankruptcy was filed, there was a class action
pending in the superior court and about to go to trial which
involved as many as 3,000 performers (current and former dancers)
at the Debtor's adult entertainment venue. Per the claims register,
the amount sought for this class action claim is $18,761,877.92,
including up to $13,650 for unpaid priority wages; the total amount
of claims on the claims register is $26,813,328.73. On its
schedules, these are divided into three claims, each of "6 to 7
figure" and listed as contingent, unliquidated, and disputed-dkt.
Mr. Salvador has been designated by the Defendants to testify as to
two opinions: (1) "Based on the company's financial statements and
tax returns provided, VIP was solvent from Jan. 1, 2014 through
Aug. 31, 2017" and (2) "The company's operation as a going concern
suggests solvency from Jan. 1, 2008 through Jan. 1, 2014."
The issue is that Mr. Salvador is not considering the Salazar Class
Action as a contingent liability in determining the Debtor's
solvency. Mr. Salvador states that there are two requirements to
recognize a contingent liability: the loss must be probable and
also reasonably estimable. Probable is generally when the event has
a 75% or greater likelihood of occurrence; reasonably estimable
means the most likely outcome within the probable range. If there
is no outcome within the range that is more likely than others, the
minimum amount in the range should be recognized.
He notes that the state court action deals with a misclassification
of the dancers as independent contractors rather than employees.
Initially the trial court refused to certify the class, but this
was reversed by the court of appeal. Mr. Salvador then analyses
this both as a claim with "no class certification" and one with a
"class certification.' To reach his conclusion, he must make a
legal conclusion and thus testify to legal opinions, which is not
proper for an expert witness.
He analyzes the class action as follows: Because it was denied
class certification from 9/10/10 through 8/2/15, he determined that
for that period the "SALAZAR MATTER as not probable and not
reasonably estimable" and gives no consideration to it in his
analysis of solvency. However, once it was granted class
certification (from 8/3/15) because the Plaintiff's Memorandum of
Contentions of Fact and Law dated 5/22/18 indicates that VIP faces
$20+ million of liability, he cannot recognize it as a contingent
liability from 8/3/15 onward.
As to the earlier period, Mr. Salvador is equating a trial court
order with the ultimate conclusion of the appellate court. This is
a legal opinion and is inadmissible. He also deems that the legal
effect of the court of appeal reversal has no effect on the
determination of VIP's solvency.
Judge Mund would like to know the accounting standard for
"disputed" liabilities as opposed to "contingent" ones. Is the
Salazar lawsuit contingent? The bankruptcy code distinguishes
between contingent liabilities and disputed ones (ie. for chapter
13 eligibility). These two words are not synonyms and it would help
to know how the accounting world treats them.
However, as to the specific objection, which is that Mr. Salvador
is giving a legal opinion that the class action has no effect on
the case until the court of appeal reversed, that objection is
sustained. The date of the ruling of the court of appeal has no
effect on the nature of the claim prior to that ruling. The court
of appeal certification reaches back in time to the date that the
claim first arose.
Grant the motion as to the analysis that there was no class prior
to the court of appeal certification. As to whether the potential
judgment and the amount of that judgment should be considered,
Judge Mund would like information on the accounting standards of a
disputed claim (for that is what this is because it only awaits a
legal determination).
A full-text copy of the Court's Nov. 30, 2022 Tentative Ruling is
available at https://tinyurl.com/y8vb7wt6 from Leagle.com.
VILLA MANNINO: Morales Sues Over Unpaid Overtime Compensation
-------------------------------------------------------------
Efrailio Morales, on behalf of himself and all others similarly
situated v. VILLA MANNINO RISTORANTE & PIZZERIA, and JOHN DOES,
individually, Case No. 3:22-cv-06244-GC-DEA (D.N.J., Oct. 28,
2022), is brought seeking to recover the overtime compensation
against the Defendants for the Defendants' violation of the Fair
Labor Standards Act, as amended (the "FLSA" or the "Act"), and the
New Jersey State Wage and Hour Law.
The Defendants engaged in a policy and practice of requiring
Plaintiff and members of the putative collective to regularly work
in excess of 40 hours per week, without providing overtime
compensation as required by applicable federal and New Jersey state
law, says the complaint.
The Plaintiff performed non-exempt kitchen duties for the
Defendants based from the Defendants' restaurant located in
Trenton, New Jersey.
The Defendants own, operate, and/or manage an Italian restaurant
and pizzeria.[BN]
The Plaintiff is represented by:
Andrew Glenn, Esq.
Jodi J. Jaffe, Esq.
300 Carnegie Center, Suite 150
Princeton, New Jersey 08540
Phone: (201) 687-9977
Fax: (201) 595-0308
Email: aglenn@jaffeglenn.com
jjaffe@jaffeglenn.com
WASTE MGMT: Robbins Geller Named Lead Counsel in Pension Plan Suit
------------------------------------------------------------------
In the case, UNITED INDUSTRIAL WORKERS PENSION PLAN, Plaintiff v.
WASTE MANAGEMENT, INC., et al., Defendants, Case No. 22 Civ. 4838
(LGS) (S.D.N.Y.), Judge Lorna G. Schofield of the U.S. District
Court for the Southern District of New York appointed:
a. the United Industrial Workers Pension Plan, along with the
Seafarers Officers & Employees Pension Plan and the
Seafarers Money Purchase Pension Plan as Lead Plaintiffs;
and
b. Robbins Geller as the Lead Counsel.
The Plaintiff filed the securities class action on June 9, 2022,
alleging violations of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, 15 U.S.C. Sections 78j(b), 78t(a), and Rule
10b-5 promulgated thereunder, 17 C.F.R. Section 240.10b-5 by
Defendants Waste Management ("WM"); James C. Fish, Jr.; Devina A.
Rankin; John J. Morris; and Leslie K. Nagy.
On Aug. 8, 2022, the Pension Plans move for appointment as lead
plaintiff pursuant to the Private Securities Litigation Reform Act
of 1995 ("PSLRA"), 15 U.S.C. Section 78u-4(a)(3) and for approval
of their counsel as lead counsel pursuant to 15 U.S.C. Section
78u-4(a)(3)(B)(v).
On Aug. 23, 2022, the Pension Plans filed a notice of unopposed
motion stating that no competing motions seeking appointment as
lead plaintiff were filed and the Defendants have not opposed the
motion for appointment of lead plaintiffs.
Judge Schofield states that at this stage, a lead plaintiff need
only show that it meets: (1) the typicality requirement, meaning
its claims are typical of the class such that they arise from the
same courts of events, and the other class members make similar
legal arguments to prove liability, and (2) the adequacy
requirement, meaning it can fairly and adequately represent the
interests of the class, its interests are not antagonistic to those
of the class, and it has retained capable counsel that is qualified
to pursue the litigation.
In the case, the Pension Plans appear to meet both requirements.
The Pension Plans, like other members of the proposed class, claim
that Defendants issued false and misleading statements that
inflated the price of WM notes, and the Pension Plans' claims arise
from the same course of conduct. There is no indication that the
Pension Plans have a conflict of interest with the proposed class
members or has selected counsel that cannot capably represent the
proposed class. Therefore, the Pension Plans are the presumptive
lead plaintiff. Accordingly, Judge Schofield appoints the Pension
Plans as the Lead Plaintiff.
The Pension Plans have selected Robbins Geller to serve as lead
counsel. Robbins Geller has significant experience in securities
litigation as the Lead Plaintiff's counsel. Accordingly, Robbins
Geller is appointed the Lead Counsel.
The Lead Counsel will have the following responsibilities and
duties on behalf of the Lead Plaintiff and the putative class: (a)
preparing and filing pleadings; (b) briefing and arguing motions;
(c) conducting discovery proceedings and depositions; (d)
settlement negotiations with counsel for Defendants; (e) pretrial
proceedings and the trial of this matter; and (f) the supervision
of all other matters concerning the prosecution or resolution of
this action.
The Clerk of Court is respectfully directed to amend the caption to
read "In re Waste Management Securities Litigation" and to close
the motion at Dkt. No. 13.
A full-text copy of the Court's Nov. 30, 2022 Order is available at
https://tinyurl.com/4tcpbpms from Leagle.com.
WESTROCK SERVICES: Porchia Suit Removed to E.D. California
----------------------------------------------------------
The case captioned as Darrien Porchia, individually, and on behalf
of all others similarly situated v. WESTROCK SERVICES, LLC, a
Georgia Limited Liability Company and DOES 1-50, inclusive, Case
No. VCU293367 was removed from the Superior Court of the State of
California, County of Tulare, to the United States District Court
for the Eastern District of California on Dec. 5, 2022, and
assigned Case No. 2:22-at-01230.
In the Complaint, Plaintiff asserts claims for alleged: failure to
pay all wages, including overtime; failure to provide meal periods;
failure to pay wages timely upon termination; failure to pay wages
during employment; failure to provide accurate wage statements; and
unfair competition.[BN]
The Defendants are represented by:
Mia Farber, Esq.
JACKSON LEWIS P.C.
725 South Figueroa Street, Suite 2500
Los Angeles, CA 90017-5408
Phone: 213.689.0404
Facsimile: 213.689.0430
Email: mia.farber@jacksonlewis.com
- and -
Scott P. Jang, Esq.
JACKSON LEWIS P.C.
50 California Street, 9th Floor
San Francisco, CA 94111-4615
Phone: (415) 394-9400
Facsimile: (415) 394-9401
Email: Scott.Jang@jacksonlewis.com
WILDERNESS SPORTS: Arcilla Appeals Order Compelling Arbitration
---------------------------------------------------------------
Plaintiff Craig Arcilla filed an appeal from a court ruling entered
in the lawsuit entitled CRAIG ARCILLA, individually and on behalf
of all others similarly situated, Plaintiff v. WILDERNESS SPORTS
WAREHOUSE, LLC d/b/a TACKLE WAREHOUSE, LLC; SPORTS WAREHOUSE d/b/a
TENNIS WAREHOUSE; RUNNING WAREHOUSE, LLC; and SKATE WAREHOUSE, LLC,
Defendants, Case No. 5:22-cv-00012-ODW-JEM, in the U.S. District
Court for the Central District of California, Riverside.
The Plaintiff brought this class action on January 4, 2022 against
Defendants for their failure to secure and safeguard his and
approximately 1,813,223 other individuals' private information,
including names, mailing addresses, payment card numbers,
expiration dates, and card security codes. The Plaintiff brought
this action on behalf of himself and all persons whose personal
identifiable information was exposed as a result of the data
breach, which Defendants learned of on October 15, 2021 and first
publicly acknowledged on December 16, 2021.
As a result of Defendants' inadequate security and breach of their
duties and obligations, the Data Breach occurred, and Plaintiff's
and Class members' PII was accessed and disclosed. This action
sought to remedy these failings and their consequences. The
Plaintiff, on behalf of himself and all other Class members,
asserts claims for negligence, negligence per se, breach of implied
contract, unjust enrichment, violation of the California Consumer
Privacy Act of 2018, and violation of the California Unfair
Competition Law, and seeks declaratory relief, injunctive relief,
monetary damages, statutory damages, punitive damages, equitable
relief, and all other relief authorized by law.
As reported in the Class Action Reporter on Oct. 28, 2022, the U.S.
District Court for the Central District of California entered an
order granting the Defendants' Motion to Compel Arbitration and
dismissing the Plaintiffs' individual and putative class claims in
these seven related actions without prejudice:
a. Patrick v. Running Warehouse, No. 2:21-cv-09978-ODW (JEMx);
b. Buffington v. Running Warehouse, No. 2:21-cv-09980-ODW
(JEMx);
c. Arcilla v. Wilderness Sports Warehouse,
No. 5:22-cv-00012-ODW (JEMx);
d. Gasnick v. Running Warehouse, No. 2:22-cv-00101-ODW (JEMx);
e. Pfeffer v. Wilderness Sports Warehouse,
No. 2:22-cv-00297-ODW (JEMx);
f. Solter v. Sports Warehouse, No. 2:22-cv-00460-ODW (JEMx);
and
g. Hargrove v. Wilderness Sports Warehouse,
No. 2:22-cv-01716-ODW (JEMx).
Judge Wright found that (i) incorporation of alternative dispute
resolution services provider JAMS Inc. arbitration rules
constitutes clear and unmistakable evidence that the parties
intended to delegate arbitrability, regardless of whether the
parties are "sophisticated"; (ii) a clause prohibiting an
arbitrator from issuing a public injunction is invalid and
unenforceable; (iii) Running's website provided sufficient
information to put Arcilla on inquiry notice; and (iv) the
Plaintiffs fail to establish that the Terms are substantively
unconscionable and Plaintiffs' unconscionability argument
necessarily fails.
The Plaintiff seeks a review of this order.
The appellate case is captioned as Craig Arcilla v. Running
Warehouse, LLC, et al., Case No. 22-56081, in the United States
Court of Appeals for the Ninth Circuit, filed on Nov. 21, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant Craig Arcilla Mediation Questionnaire was due on
November 28, 2022;
-- Transcript shall be ordered by December 19, 2022;
-- Transcript is due on January 17, 2023;
-- Appellant Craig Arcilla opening brief is due on February 27,
2023;
-- Appellees Running Warehouse, LLC, Sports Warehouse, Inc. and
Wilderness Sports Warehouse, LLC answering brief is due on March
27, 2023; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant CRAIG ARCILLA, individually and on behalf of
all others similarly situated, is represented by:
Robert Rafael Ahdoot, Esq.
Tina Wolfson, Esq.
AHDOOT & WOLFSON, PC
2600 W. Olive Avenue Suite 500
Burbank, CA 91505
Telephone: (310) 474-9111
- and -
Ben Barnow, Esq.
BARNOW AND ASSOCIATES, P.C.
205 West Randolph Street Suite 1630
Chicago, IL 60606
Telephone: (312) 621-2000
Defendants-Appellees RUNNING WAREHOUSE, LLC, a California limited
liability company; WILDERNESS SPORTS WAREHOUSE, LLC, a California
limited liability company, DBA Tackle Warehouse; and SPORTS
WAREHOUSE, INC., a California corporation, DBA Tennis Warehouse,
are represented by:
Benjamin O. Aigboboh, Esq.
P. Craig Cardon, Esq.
Jay T. Ramsey, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON, LLP
333 S Hope Street 43rd Floor
Los Angeles, CA 90071-1448
Telephone: (310) 228-3700
WILDERNESS SPORTS: Hargrove Appeals Order Compelling Arbitration
----------------------------------------------------------------
Plaintiff Tom Hargrove filed an appeal from a court ruling entered
in the lawsuit entitled TOM HARGROVE, individually and on behalf of
all others similarly situated, Plaintiff v. WILDERNESS SPORTS
WAREHOUSE, LLC, d/b/a TACKLE WAREHOUSE; RUNNING WAREHOUSE, LLC;
SPORTS WAREHOUSE, INC., d/b/a TENNIS WAREHOUSE; and SKATE
WAREHOUSE, LLC, Defendants, Case No. 4:22-cv-00006-CDL, in the U.S.
District Court for the Central District of California, Riverside.
The Plaintiff brought this class action on January 11, 2022,
against Defendants for negligence, negligence per se, declaratory
judgment, breach of contract, breach of implied contract, unjust
enrichment, and violation of the Georgia Uniform Deceptive Trade
Practices Act.
The case arises from the Defendants' failure to properly secure and
safeguard the protected personally identifiable information (PII)
of their customers following a data breach, failure to comply with
industry standards to protect information systems that contain PII,
and failure to provide adequate and prompt notice to the Plaintiff
and other Class members that their PII had been accessed and
compromised. As a result of the Defendants' alleged security
failures, the Plaintiff and Class members now face a substantially
increased risk of identity theft, both currently and for the
indefinite future.
As reported in the Class Action Reporter on Oct. 28, 2022, the U.S.
District Court for the Central District of California entered an
order granting the Defendants' Motion to Compel Arbitration and
dismissing the Plaintiffs' individual and putative class claims in
these seven related actions without prejudice:
a. Patrick v. Running Warehouse, No. 2:21-cv-09978-ODW (JEMx);
b. Buffington v. Running Warehouse, No. 2:21-cv-09980-ODW
(JEMx);
c. Arcilla v. Wilderness Sports Warehouse,
No. 5:22-cv-00012-ODW (JEMx);
d. Gasnick v. Running Warehouse, No. 2:22-cv-00101-ODW (JEMx);
e. Pfeffer v. Wilderness Sports Warehouse,
No. 2:22-cv-00297-ODW (JEMx);
f. Solter v. Sports Warehouse, No. 2:22-cv-00460-ODW (JEMx);
and
g. Hargrove v. Wilderness Sports Warehouse,
No. 2:22-cv-01716-ODW (JEMx).
Judge Wright found that (i) incorporation of alternative dispute
resolution services provider JAMS Inc. arbitration rules
constitutes clear and unmistakable evidence that the parties
intended to delegate arbitrability, regardless of whether the
parties are "sophisticated"; (ii) a clause prohibiting an
arbitrator from issuing a public injunction is invalid and
unenforceable; (iii) Running's website provided sufficient
information to put Arcilla on inquiry notice; and (iv) the
Plaintiffs fail to establish that the Terms are substantively
unconscionable and Plaintiffs' unconscionability argument
necessarily fails.
The Plaintiff seeks a review of this order.
The appellate case is captioned as Tom Hargrove v. Running
Warehouse, LLC, et al., Case No. 22-56087, in the United States
Court of Appeals for the Ninth Circuit, filed on Nov. 21, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant Tom Hargrove Mediation Questionnaire was due on
November 28, 2022;
-- Transcript shall be ordered by December 19, 2022;
-- Transcript is due on January 17, 2023;
-- Appellant Tom Hargrove opening brief is due on February 27,
2023;
-- Appellees Running Warehouse, LLC, Sports Warehouse, Inc. and
Wilderness Sports Warehouse, LLC answering brief is due on March
27, 2023; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant TOM HARGROVE, individually and on behalf of all
others similarly situated, is represented by:
Marybeth V. Gibson, Esq.
THE FINLEY FIRM PC
3535 Piedmont Road
Building 14, Suite 230
Atlanta, CA 30305
Telephone: (404) 978-6971
Defendants-Appellees RUNNING WAREHOUSE, LLC, a California limited
liability company; WILDERNESS SPORTS WAREHOUSE, LLC, a California
limited liability company, DBA Tackle Warehouse; and SPORTS
WAREHOUSE, INC., a California corporation, DBA Tennis Warehouse,
are represented by:
Benjamin O. Aigboboh, Esq.
P. Craig Cardon, Esq.
Jay T. Ramsey, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON, LLP
333 S Hope Street 43rd Floor
Los Angeles, CA 90071-1448
Telephone: (310) 228-3700
WILDERNESS SPORTS: Pfeffer Appeals Order Compelling Arbitration
---------------------------------------------------------------
Plaintiff Jesse Pfeffer filed an appeal from a court ruling entered
in the lawsuit entitled Jesse Pfeffer v. Wilderness Sports
Warehouse, LLC, et al., Case No. 2:22-cv-00297-ODW-JEM, in the U.S.
District Court for the Central District of California, Riverside.
The Plaintiff brought this class action on January 13, 2022 against
Defendants for their failure to secure and safeguard his and other
individuals' private information, including names, mailing
addresses, payment card numbers, expiration dates, and card
security codes. The Plaintiff brought this action on behalf of
himself and all persons whose personal identifiable information was
exposed as a result of the data breach, which Defendants learned of
on or about October 15, 2021 and first publicly acknowledged on or
about December 16, 2021.
As a result of Defendants' inadequate security and breach of their
duties and obligations, the Data Breach occurred, and Plaintiff's
and Class members' PII was accessed and disclosed. This action
seeks to remedy these failings and their consequences. The
Plaintiff, on behalf of himself and all other Class members,
asserts claims for negligence, negligence per se, breach of implied
contract, unjust enrichment, violation of the California Consumer
Privacy Act of 2018, and violation of the California Unfair
Competition Law, and seeks declaratory relief, injunctive relief,
monetary damages, statutory damages, punitive damages, equitable
relief, and all other relief authorized by law.
As reported in the Class Action Reporter on Oct. 28, 2022, the U.S.
District Court for the Central District of California entered an
order granting the Defendants' Motion to Compel Arbitration and
dismissing the Plaintiffs' individual and putative class claims in
these seven related actions without prejudice:
a. Patrick v. Running Warehouse, No. 2:21-cv-09978-ODW (JEMx);
b. Buffington v. Running Warehouse, No. 2:21-cv-09980-ODW
(JEMx);
c. Arcilla v. Wilderness Sports Warehouse,
No. 5:22-cv-00012-ODW (JEMx);
d. Gasnick v. Running Warehouse, No. 2:22-cv-00101-ODW (JEMx);
e. Pfeffer v. Wilderness Sports Warehouse,
No. 2:22-cv-00297-ODW (JEMx);
f. Solter v. Sports Warehouse, No. 2:22-cv-00460-ODW (JEMx);
and
g. Hargrove v. Wilderness Sports Warehouse,
No. 2:22-cv-01716-ODW (JEMx).
Judge Wright found that (i) incorporation of alternative dispute
resolution services provider JAMS Inc. arbitration rules
constitutes clear and unmistakable evidence that the parties
intended to delegate arbitrability, regardless of whether the
parties are "sophisticated"; (ii) a clause prohibiting an
arbitrator from issuing a public injunction is invalid and
unenforceable; (iii) Running's website provided sufficient
information to put Arcilla on inquiry notice; and (iv) the
Plaintiffs fail to establish that the Terms are substantively
unconscionable and Plaintiffs' unconscionability argument
necessarily fails.
The Plaintiff seeks a review of this order.
The appellate case is captioned as Jesse Pfeffer v. Running
Warehouse, LLC, et al., Case No. 22-56084, in the United States
Court of Appeals for the Ninth Circuit, filed on Nov. 21, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant Jesse Pfeffer Mediation Questionnaire was due on
November 28, 2022;
-- Transcript shall be ordered by December 19, 2022;
-- Transcript is due on January 17, 2023;
-- Appellant Jesse Pfeffer opening brief is due on February 27,
2023;
-- Appellees Running Warehouse, LLC, Sports Warehouse, Inc. and
Wilderness Sports Warehouse, LLC answering brief is due on March
27, 2023; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant JESSE PFEFFER, individually and on behalf of
all others similarly situated, is represented by:
Jon Anders Tostrud, Esq.
TOSTRUD LAW GROUP, P.C.
1925 Century Park East Suite 2100
Los Angeles, CA 90067
Telephone: (310) 278-2600
Defendants-Appellees RUNNING WAREHOUSE, LLC, a California limited
liability company; WILDERNESS SPORTS WAREHOUSE, LLC, a California
limited liability company, DBA Tackle Warehouse; and SPORTS
WAREHOUSE, INC., a California corporation, DBA Tennis Warehouse,
are represented by:
Benjamin O. Aigboboh, Esq.
P. Craig Cardon, Esq.
Jay T. Ramsey, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON, LLP
333 S Hope Street 43rd Floor
Los Angeles, CA 90071-1448
Telephone: (310) 228-3700
ZILLOW GROUP: Adams Suit Transferred to W.D. Washington
-------------------------------------------------------
The case styled as Jill Adams, as Natural Mother and Next Friend of
her minor child, individually and on behalf of all others similarly
situated v. Zillow Group Inc., Case No. 4:22-cv-01023-JAR was
transferred from the U.S. District Court for the Eastern District
of Missouri, to the U.S. District Court for the Western District of
Washington on Dec. 5, 2022.
The District Court Clerk assigned Case No. 2:22-cv-01737-JCC to the
proceeding.
The nature of suit is stated as Contract Product Liability for
Breach of Contract.
Zillow Group, Inc. -- https://www.zillowgroup.com/ -- or simply
Zillow, is an American tech real-estate marketplace company that
was founded in 2006.[BN]
The Plaintiff is represented by:
Tiffany M. Yiatras, Esq.
CONSUMER PROTECTION LEGAL
308 Hutchinson Road
Ellisville, MO 63011
Phone: (314) 541-0317
Fax: (855) 710-7706
Email: tiffany@consumerprotectionlegal.com
The Defendants are represented by:
Christian Charles Antkowiak, Esq.
BUCHANAN INGERSOLL PC - Pittsburgh
Union Trust Building
501 Grant Street, Suite 200
Pittsburgh, PA 15219-4413
Phone: (412) 562-3988
Fax: (412) 562-1041
Email: christian.antkowiak@bipc.com
ZUMIEZ INC: Settlement Paid in Herrera Class Suit
--------------------------------------------------
Zumiez Inc. disclosed in its Form 10-Q Report for the quarterly
period ended October 29, 2022 filed with the Securities and
Exchange Commission on December 5, 2022, that the settlement in
Herrera class suit was paid to claims administrator and for
disbursement on August 19, 2022.
A putative class action, Alexia Herrera, on behalf of herself and
all other similarly situated, v. Zumiez Inc., was filed against us
in the Eastern District Count of California, Sacramento Division
under case number 2:16-cv-01802-SB in August 2016.
Alexandra Bernal filed the initial complaint and then in October
2016 added Alexia Herrera as a named plaintiff and Alexandra Bernal
left the case.
The putative class action lawsuit against us alleges, among other
things, various violations of California's wage and hour laws,
including alleged violations of failure to pay reporting time.
After several years of procedural motions and appeals related
thereto, the parties held mediation with a private mediator on June
23, 2021.
The parties reached a resolution in principle for all class claims,
which was submitted for the court’s approval.
The settlement of $2.8 million is included in other liabilities on
the consolidated balance sheet as of January 29, 2022, and was
recorded in selling, general and administrative expenses on the
consolidated statement of operations in the second quarter of
fiscal 2021.
Final approval of the settlement was granted per the court's order
issued on July 26, 2022 and the settlement was paid to the claims
administrator for disbursement on August 19, 2022.
Zumiez Inc., is a Washington-based specialty retailer of apparel,
footwear, accessories and hard goods.
*********
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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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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