/raid1/www/Hosts/bankrupt/CAR_Public/221222.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, December 22, 2022, Vol. 24, No. 249
Headlines
AIG SPECIALTY: 2nd Cir. Affirms Summary Judgment for Great American
BANK OF AMERICA: Faces Another Class Action Over Zelle App Scams
BEFORE BRANDS: Faces Class Action Over SpoonfulONE Product
BHI ENERGY: Lingo Suit Remanded to Luzerne Court of Common Pleas
BRITISH COLUMBIA: Faces Class Suit Over COVID-19 Pandemic Response
BURLINGTON COUNTY, NJ: Pellecchia Can't Proceed as Class Action
CHARTER COMMUNICATIONS: Final Judgment in Winchester Suit Affirmed
CHICAGO, IL: Judge Greenlights Portions of Parking Class Action
CIBC MORTGAGES: Settlement Approval Hearing Set Feb. 6, 2023
COINBASE INC: Bielski's Bid to Name Interim Class Counsel Denied
COMPOUND DAO: Bids for Lead Plaintiff Appointment Due February 7
DAILY BREEZE: Cal. App. Affirms Dismissal of Salgado Class Claims
DEUTSCHE BANK: Manipulates Euro Bonds' Price, Pension Funds Claim
DOMINION VOTING: Sanctions on Attorneys in O'Rourke Suit Affirmed
ELECTROLUX AB: Parker Sues Over Cooking Ranges' Concealed Defect
FAT BRANDS: $3MM Class Settlement Hearing Set on Feb. 28, 2023
FORBES MEDIA: Faces Class Action Over Illegal Video Data Sharing
HAMILTON COUNTY, TN: Former Resident Sues Over Motel Eviction
HARRY SILVER: Jackson Sues Over Manual Laborers' Unpaid Wages
HIGHMARK BCBSD: Class Settlement in Walker Suit Wins Prelim. Nod
INSIDER INC: Faces Video Privacy Law Class Action in New York
JPMORGAN CHASE: Averts Class Action Over Retirement Plans
KIA AMERICA: Vehicles Lack Anti-Theft Features, Jeong Suit Says
LEND-A-LOAN LLC: Kauffman Alleges Illegal Conversation Recordings
LIBERTY MUTUAL: Faces Class Action Over "Session Replay" Spyware
MAINE OXY-ACETYLENE: $6.33M Class Deal in Glynn Suit Wins Final OK
MDL 1264: $16K in Attys' Fees Given in BankAmerica Securities Suit
MDL 3053: Bid to Centralize 17 Actions in Data Breach Suit Denied
MISSISSIPPI BEHAVIORAL: Jackson Sues Over Failure to Pay Proper OT
NEW YORK: Must Limit Class Cert Opposition to 30 Pages
NICKLIANCOS LLC: Fails to Timely Pay Movers, Nembach Suit Alleges
NOVA MUD: RUSCO Can't Compel Arbitration in Oldham Class Suit
REALPAGE INC: Artificially Raised Rental Prices, Pham Suit Claims
RUGSUSA LLC: Valenzuela Sues Over Wiretapping of Website Visitors
SILVERGATE: Bids for Lead Plaintiff Appointment Due February 6
SOUTHERN GLAZER'S WINE: Order Lifting Stay in Niz Suit Affirmed
SPRINGPOINT SENIOR: Class Action Over Refundable Deposits Okayed
SUPERVALU INC: Faces Class Action Over Equaline Lidocaine Patches
TALIS BIOMEDICAL: Averts Class Action Over COVID-19 Test Platform
TANGO SUR: Faces Ramirez Suit Over Unpaid Wages of Restaurant Staff
TOYOTA MOTOR: Bettles Suit Over Faulty HVAC Tossed With Prejudice
TRADER JOE'S: Judge Tosses Class Action Over "Cold-Pressed" Labels
TRULIEVE INC: Faces WARN Class Action Suit Over Mass Layoffs
TWIST BIOSCIENCE: Rosen Law Firm Investigates Securities Claims
UNITED STATES: Faces Class Action Suit Over FACTA Violations
UNITED STATES: Summary Judgment Bid in Ingham Suit Granted in Part
VIBRANTCARE REHABILITATION: Remand of Williams Suit Reversed
WE LEND: Faces Skinner Suit Over Unsolicited Text Messages
[*] Fast Fashion Company Sued Over "Conscious Choice" Clothing Line
*********
AIG SPECIALTY: 2nd Cir. Affirms Summary Judgment for Great American
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In the case, GREAT AMERICAN INSURANCE COMPANY, Plaintiff-Appellee
v. AIG SPECIALTY INSURANCE COMPANY, Defendant-Appellant, Case Nos.
21-1298 (L), 21-1803 (Con) (2d Cir.), the U.S. Court of Appeals for
the Second Circuit affirms the judgment of the district court
granting summary judgment for Great American and denying AIG's
cross-motion for summary judgment.
AIG appeals the April 6, 2021 opinion and order of the district
court granting summary judgment for Great American and denying its
cross-motion for summary judgment. Houlihan/Lawrence, a subsidiary
of HomeServices America ("HSA"), is a mutual insured of Great
American and AIG.
Great American filed the suit seeking a declaratory judgment that
AIG must contribute to the defense of Houlihan in connection with a
pending class-action lawsuit in New York state court ("Underlying
Lawsuit") -- Goldstein v. Houlihan/Lawrence Inc., No. 60767 (N.Y.
Sup. Ct. 2018).
AIG argues it has no duty to defend under New York insurance law
because the alleged wrongful acts against Houlihan in the
Underlying Lawsuit are not covered by HSA's AIG policy, having
occurred either (1) before Houlihan became an insured "Subsidiary,"
or (2) after Houlihan became an insured "Subsidiary" but are
"Related Acts" that should be deemed to have occurred before
Houlihan became an insured "Subsidiary."
On appeal, it contends that the district court erred by holding
that the "Related Acts" provision of AIG's insurance policy does
not apply to the provision identifying when coverage for a
"Subsidiary" begins. It also argues that the district court erred
by holding that the plaintiffs' claims in the Underlying Lawsuit
are not "Related Acts."
The Second Circuit reviews de novo a district court's decision to
grant summary judgment, construing the evidence in the light most
favorable to the party against whom summary judgment was granted
and drawing all reasonable inferences in that party's favor. It
finds that it need not decide whether the district court correctly
held that AIG failed to show that the "Related Acts" provision
applies to the provision identifying when coverage for a
"Subsidiary" begins because, in any case, AIG has failed to escape
its duty to defend.
As a preliminary matter, the Second Circuit says AIG has a
presumptive duty to defend because there is "a reasonable
possibility of coverage." Even accepting AIG's view that "Wrongful
Acts" resulting from a single scheme are always "Related Acts," the
state court in the Underlying Lawsuit may conclude that the alleged
"Wrongful Acts" on May 22, 2017 (occurring after HSA's acquisition
of Houlihan) did not result from a coordinated scheme by Houlihan
but from agents breaching duties in distinct sales. These sales
would not be "Related Acts" under any definition. This prospect
alone means there is a reasonable possibility of coverage, thus
triggering AIG's presumptive duty to defend Houlihan.
In any event, to escape its duty to defend, AIG must show that
there is no "possible factual or legal basis" for ever concluding
that Houlihan's post-acquisition property sale was not a "Related
Act," but the Second Circuit believes there is such a basis. It
finds that the Plaintiffs' claims in the Underlying Lawsuit share
some similarity in that each involves alleged dual agency, but the
claims are different in other respects.
The Plaintiffs allege "Wrongful Acts" relating to transactions that
occurred in different years and featured different Houlihan
representatives, and they allege different injuries arising from
the dual agency. Moreover, some plaintiffs were sellers and others
were buyers in the relevant transactions. Given the disparate
facts, the acts across the transactions cannot be deemed to be the
"same."
The Second Circuit agrees with the district court that a closer
connection is required for the alleged "Wrongful Acts" here to be
"related." Indeed, cases applying New York law have typically
involved a closer factual nexus when events are "Related Acts"
under similar provisions of insurance agreements. The Second
Circuit thus disagrees with AIG that the property sales at issue in
the Underlying Lawsuit are the "same, related or continuous" or
arise from a "common nucleus of facts."
AIG's arguments to the contrary are unavailing, the Second Circuit
holds. First, although the Plaintiffs' claims may present
"questions of law or fact common to the class which predominate
over any questions affecting only individual members" and "the
claims or defenses of the representative parties are typical of the
claims or defenses of the class," their claims are nonetheless
"unrelated" for purposes of AIG's insurance policy because they do
not arise from the "same" transaction. Second, the duty to defend
is distinct from the duty to indemnify, and "an insurer may be
required to defend under the contract even though it may not be
required to pay once the litigation has run its course."
The Second Circuit has considered the remainder of AIG's arguments
and finds them to be without merit. For the foregoing reasons, it
affirms the judgment of the district court.
A full-text copy of the Court's Dec. 13, 2022 Summary Order is
available at https://tinyurl.com/msvvu54u from Leagle.com.
JAMES P. RUGGERI -- jruggeri@ruggerilaw.com -- (Sara K. Hunkler --
shunkler@ruggerilaw.com -- on the brief), Ruggeri Parks Weinberg
LLP, Washington, DC, for the Plaintiff-Appellee.
MARC A. SILVERMAN -- marc.silverman@dlapiper.com -- (Joseph G.
Finnerty III -- joseph.finnerty@dlapiper.com -- Eric S. Connuck --
eric.connuck@dlapiper.com -- on the brief), DLA Piper LLP, (US),
New York, NY; Philadelphia, PA, for the Defendant-Appellant.
BANK OF AMERICA: Faces Another Class Action Over Zelle App Scams
----------------------------------------------------------------
Jason Stoogenke, writing for wsoctv.com, reports that another
person is suing Bank of America in federal court in Charlotte,
claiming it did not do enough to protect customers against Zelle
scams.
The plaintiff says someone pretending to be with the bank called
her and claimed someone was trying to steal money out of her
account, and that they could help.
The plaintiff says the caller walked her through a series of steps
and tricked her into transferring the scammer money.
The plaintiff says she notified the bank quickly, but that the bank
did not replace the money.
The plaintiff claims Zelle has "huge, undisclosed security risks"
and that "virtually any money transferred for any reason via Zelle
is gone forever, without recourse, reimbursement or protection."
The lawsuit is against Bank of America, not Zelle. Bank of America
says it will not comment on pending litigation.
Since this a class-action lawsuit, the plaintiffs would officially
ask the judge at some point to make it a class action. If the judge
says yes, it could open the case to people all over the country,
including here in the Carolinas.
Another recent lawsuit
A few weeks ago, Channel 9 told you about another class-action
lawsuit against Bank of America that also involved Zelle and was
filed in Charlotte as well.
It claims the app is "neither safe nor secure."
"Right now, it's a haven for fraudsters and they are really taking
advantage of Bank of America's customers along with other banks," a
lawyer for the plaintiffs, Andrew Brown, told Action 9′s Jason
Stoogenke.
Brown says of the seven banks that own Zelle, Bank of America tends
to turn a blind eye more than some of the others when it comes to
scams involving Zelle. "Some do a much better job than Bank of
America does," he said.
According to the lawsuit, one of the plaintiffs is a South Carolina
woman is older than 70. A caller "identifying themselves as a Bank
of America employee" tricked her out of $2,000.
The bank would not comment on a case while it's still going on.
More than 50 alleged victims reach out to Action 9
More than 50 alleged victims have reached out to Stoogenke since
the middle of last year. Some are calling it the Zelle "me to me"
scam because you think your transferring money to yourself to
protect it.
The law says banks have to reimburse unauthorized transactions. But
some banks argue these transactions were authorized because the
victims said yes to the transfers.
Priscille Elusme told Stoogenke her bank, Bank of America, wouldn't
reimburse her. "I'm just trying to hold it together, keep it
together, you know, singing, and then trying to raise up my good
thoughts. … Wow, I can't believe I just got scammed like that,"
she said. "I just couldn't believe my mind. This is a big
eye-opener for me."
Bank of America would not discuss her case for privacy reasons, but
it says it will "never ask you to transfer money to anyone,
including yourself. Don't transfer money as a result of an
unexpected text or call."
People who work in the banking industry told Stoogenke this is how
the scams works:
- Scammers get your account information (maybe from a data breach
or you clicked on a link you shouldn't have). But they still need a
two-factor authentication code to access your account.
- That's when the acting starts. They pose as your bank, then text
you, saying your account may have been compromised, and follow up
with a phone call.
- Then they or you, it's not clear who, try to log in to your
account, which triggers the two-factor authentication.
- You get the code and they ask you for it as part of the remedy.
- If you give it to them, they now have everything they need to get
into your account and help themselves to your money.
Advice from Action 9:
- Don't fall for the text.
- Don't fall for the phone call.
- Scammers can spoof your bank's number, so don't trust your Caller
ID.
- Do not give them that 6-digit authentication code. [GN]
BEFORE BRANDS: Faces Class Action Over SpoonfulONE Product
----------------------------------------------------------
Dave Bloom, writing for SnackSafely.com, reports that a class
action lawsuit had been filed against Before BrandsTM -- the makers
of SpoonfulONETM -- in US District Court for Northern California on
October 27, 2022. SpoonfulONE is a product line of nutraceuticals
intended to introduce common allergens to babies to help ward off
the development of food allergies later in life.
The lawsuit alleges that:
SpoonfulONE's representations are not only false, deceptive, and
misleading, but extraordinarily dangerous, giving parents a false
sense of security that their children are obtaining enough
allergenic proteins to promote oral tolerance to food allergens.
It goes on to assert that:
"SpoonfulONE Products do not contain the 30mg of allergenic peanut,
milk, and egg protein as advertised."
". . . even if they did, according to peer-reviewed studies, 30mg
is an insufficient amount to introduce or promote oral tolerance of
food allergens, as represented by SpoonfulONE."
In a message on the SpoonfulONE website, Before Brands has
announced they are suspending sales of SpoonfulONE in the US
indefinitely:
To our valued customers & partners:
We want to thank you for your support of SpoonfulONE over the
years. We are proud to have had even a small part in your journey
with early allergen feeding and solid food introduction.
At this time, SpoonfulONE will be pausing U.S. sales of our
products as demand for SpoonfulONE is higher in international
markets. Our partner for sales outside the US, Nestlé Health
Science, will continue to focus on growing and expanding
internationally.
Our product will remain on-shelf in Target, Walgreens, H-E-B,
Wegmans, and other grocery stores around the U.S. until it sells
through.
SpoonfulONE's products do not have any safety or quality concerns.
We stand firmly behind the science and data that showcases the
integrity of our products for babies and toddlers. You can continue
to safely feed your baby any SpoonfulONE products you have at
home.
Since SpoonfulONE was founded, we are proud to have:
Reached thousands of families with our four product formats for all
infants and toddlers;
Grown our retail presence to more than 7,000 stores;
Shifted both parent and pediatrician understanding of common food
allergens;
And ultimately led the category with nearly 4 million servings of
SpoonfulONE fed in the United States.
We believe in the science of SpoonfulONE, now more than ever. That
mission has not changed. Our goal is to still contribute to the
reduction of food allergies around the world.
For more information:
Review general information and other Q&As on infant food allergen
introduction, written and reviewed by pediatricians and other
credentialed medical professionals, here.
We transparently publish information on our testing protocols and
protein integrity here. You can also learn more about our research
here.
Thank you again for your support of SpoonfulONE.
Based on the circumstances, we believe it is unlikely SpoonfulONE
will return to the US market before the lawsuit is settled. [GN]
BHI ENERGY: Lingo Suit Remanded to Luzerne Court of Common Pleas
----------------------------------------------------------------
In the case, RODNEY LINGO, Plaintiff v. BHI ENERGY POWER SERVICES,
Defendant, Civil Action No. 3:22-1275 (M.D. Pa.), Judge Malachy E.
Mannion of the U.S. District Court for the Middle District of
Pennsylvania grants Lingo's Motion to Remand.
Lingo filed the putative class action on July 18, 2022, in the
Luzerne County Court of Common Pleas. His complaint asserted state
law claims against the Defendant under the Pennsylvania Minimum
Wage Act (PMWA) and Pennsylvania's Wage Payment and Collection Law
(WPCL).
On Aug. 15, 2022, BHI timely removed the action to this court based
on diversity jurisdiction under 28 U.S.C. Section 1332(a), arguing
there is complete diversity of citizenship between the parties and
the amount in controversy exceeds the $75,000 jurisdictional
minimum.
On Aug. 25, 2022, Lingo filed the pending motion for remand and a
supporting brief. He does not dispute that there is complete
diversity of citizenship between the parties. However, Lingo argues
BHI has failed to demonstrate that the relief Lingo seeks satisfies
the jurisdictional minimum for the amount in controversy.
BHI filed a brief in opposition to the motion for remand on Sept.
8, 2022. Lingo filed a reply brief on Sept. 22, 2022. With leave of
Court, BHI filed a sur reply on Oct. 7, 2022.
There is also a motion to dismiss pending in this action which BHI
filed on Sept. 6, 2022. Before the case was reassigned to Judge
Mannion, Judge Saporito appropriately granted Lingo's motion to
stay the briefing schedule on BHI's motion to dismiss pending the
resolution of the instant motion for remand.
To invoke diversity jurisdiction, BHI must establish that the
matter is between citizens of different states and that the amount
in controversy, exclusive of interest and costs, exceeds $75,000.
As an initial matter, the parties do not dispute, and Judge Mannion
is satisfied, that the first element of diversity jurisdiction is
met because Lingo and BHI are citizens of different states. Thus,
he addresses the disputed second element of diversity jurisdiction
-- whether the amount in controversy exceeds $75,000.
Judge Mannion says he has no basis for the expectation that the
amount in controversy will multiply by approximately 13 times from
Lingo's potential compensatory and liquidated damages. As a result,
BHI has not shown by a preponderance of evidence that the value of
Lingo's complaint exceeds the jurisdictional minimum. Therefore,
strictly construing the removal statutes and resolving all doubts
in favor of remand, Judge Mannion finds that BHI has not met its
burden to establish the amount in controversy and remand the case
to state court.
Lingo asks the Court to award attorney fees and costs incurred in
litigating the instant motion. Under 28 U.S.C. Section 1447(c), a
remand order may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of the
removal. As a general rule, courts may award attorneys' fees under
Section 1447(c) only where the removing party lacked an objectively
reasonable basis for seeking removal. Judge Mannion finds that
BHI's removal was not objectively unreasonable under the
circumstances. Therefore, Lingo is not entitled to attorneys'
fees.
In light of the foregoing, Judge Mannion finds that the Defendant
has not met its burden of establishing that the amount in
controversy is sufficient to bring the Plaintiff's claims before
the Court. He is thus without jurisdiction to hear the case, and
grants Lingo's motion to remand. Moreover, Judge Mannion dismisses
as moot, without prejudice to refiling in state court, BHI's motion
to dismiss. An appropriate order follows.
A full-text copy of the Court's Dec. 13, 2022 Memorandum is
available at https://tinyurl.com/bdacadxu from Leagle.com.
BRITISH COLUMBIA: Faces Class Suit Over COVID-19 Pandemic Response
------------------------------------------------------------------
Jeremy Hainsworth, writing for Pique News Magazine, reports that
B.C.'s government exceeded its powers in its COVID-19 pandemic
response, a lawyer for a proposed class-action suit told a B.C.
Supreme Court judge on Dec. 13.
The lawsuit filed by the Canadian Society for the Advancement of
Science in Public Policy, led by Kipling Warner, seeks to challenge
and obtain compensation for various measures, mandates and
restrictions imposed in response to the pandemic.
Provincial health officer Dr. Bonnie Henry is also named a
defendant in the lawsuit.
The current hearings are an application for certification of the
class proceeding. The judge hears applications of various kinds and
evidence to determine if a class action is a suitable choice for
the case, which can involve many people but are represented by what
is known as a representative claimant.
Warner has been that claimant in this case, but a soon-to-be-heard
application might change that.
Plaintiff's lawyer Polina Furtula said the challenge revolves
around whether or not the pandemic warranted having an emergency
declared. She argues the provincial legislative conditions for an
emergency declaration were not met.
She called the resulting response "disproportionate" and said the
emergency measures were unwarranted as they did not meet reasonable
public health objectives.
"We're still in a state of emergency under the Provincial Health
Act," Furtula said.
The suit further claims British Columbia's government breached
Canadian Charter of Rights and Freedoms rights protection from
unreasonably infringed freedoms; freedom of conscience and
religion; thought, belief, opinion and expression, including
freedom of the press and other media of communication; peaceful
assembly; and of association.
The purpose of the hearings is to hear arguments about whether or
not the case meets the criteria for it to proceed as a class
action.
Since the World Health Organization declared the COVID-19 outbreak
a pandemic in March 2020, Henry has issued several orders designed
to reduce the spread of the virus in the province, including
requiring proof of vaccination to enter several businesses like
restaurants. The so-called "vaccine passport" was in place in B.C.
from September 2021 to April 2022.
"At the height of the pandemic, moderation was unpopular," Furtula
told Justice David Crerar.
She said anyone not following the government line was "vilified as
a conspiracy theorist" and that the media censored the voice of
those who dissented against the government.
The result, Furtula said, was a polarization of society.
Furtula cited multiple past cases of the dangers of just doing what
the government said was right, among them the internment of
Japanese-Canadians during World War II, the confining of Indigenous
children to Indian residential schools and the sterilization of
Inuit women.
She called the list "endless and notorious."
The province is expected to bring various applications to end the
proceedings. One of those could be an abuse of process application,
an argument based on the fact that Warner has tried to litigate
similar issues in other proceedings.
Judge explains procedure
Speaking to the packed 120-seat courtroom, Crerar said he has not
followed other COVID-related cases so he could "truly remain
open-minded."
Crerar explained it's not his role to make any findings of fact or
determine if the actions of the public health officer "were good,
bad or otherwise." What the certification process determines, he
said, is whether or not the case has all the elements needed under
the Class Proceedings Act to move forward or to be ended.
He said 60 to 66 per cent of proposed class actions move forward.
Other COVID-related cases
B.C. Supreme Court Chief Justice Christopher Hinkson has already
dismissed four separate challenges to B.C.'s vaccine passport
program, one of which was brought by Warner and his society.
When the vaccine card program was introduced in September 2021,
Henry received 800 reconsideration requests, largely based on
opposition. Those requests "occupied significant time and effort"
for Henry, leading her to dismiss them all, save for medical
exemptions, in the variance order.
The hearings are being filmed, a rarity in B.C. courts, and should
be available online on canlii.org. [GN]
BURLINGTON COUNTY, NJ: Pellecchia Can't Proceed as Class Action
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In the case, NICHOLAS D. PELLECCHIA, Plaintiff v. COUNTY OF
BURLINGTON, et al., Defendants, Civil Action No. 22-4707 (CPO)
(MJS) (D.N.J.), Judge Christine P. O'Hearn of the U.S. District
Court for the District of New Jersey:
a. dismisses without prejudice the Plaintiff's Complaint for
failure to comply with Rule 8 of the Federal Rules of Civil
Procedure;
b. denies the Plaintiff's request to proceed as a class
action; and
c. denies as moot the Plaintiff's various requests for
injunctive relief.
Before the Court is the Plaintiff's Complaint, raising claims
pursuant to 42 U.S.C. Section 1983. The Court attempted to screen
the Complaint pursuant to 28 U.S.C. Section 1915A to determine
whether it should be dismissed as frivolous or malicious, for
failure to state a claim upon which relief may be granted, or
because it seeks monetary relief from a defendant who is immune
from suit.
Judge O'Hearn finds that the Plaintiff must address various
deficiencies within the Complaint before the Court can complete its
screening process.
First, the Plaintiff seeks to proceed with the Complaint as a class
action. However, he is a pro se prisoner without formal training in
the law. Thus, the Plaintiff would not be able to represent the
interests of the class and maintain the suit as a class action.
Accordingly, Judge O'Hearn denies the Plaintiff's request to
proceed as a class action. When preparing his proposed amended
complaint, the Plaintiff must remove any class allegations.
Next, Judge O'Hearn finds that the Plaintiff's Complaint fails to
comply with Federal Rule of Civil Procedure 8. He explains that
Rule 8 requires a complaint to be simple, concise, direct, and set
forth "a short and plain statement of the claim showing that the
pleader is entitled to relief." The primary flaw in the Complaint
is that it often alleges that some or all of the Defendants acted
in unison, without delineating the actions of each Defendant or
explaining under what circumstances they acted or failed to act.
Alternatively, the Complaint often contends that an unspecified
individual or individuals committed a wrong, and then argues that
some or all of the Defendants were somehow responsible. These types
of allegations are known as improper group pleading. Mere
conclusory allegations against defendants as a group that fail to
allege the personal involvement of any defendant are insufficient
to state a claim.
Accordingly, Judge O'Hearn holds that the Plaintiff's Complaint
fails to comply with Rule 8 as it fails to simply or directly
allege what the Plaintiff's claims are against each Defendant and
fails to provide fair notice of the grounds on which he intends to
rest his claims. In other words, the Complaint would not provide
any meaningful opportunity for the Defendants to decipher or answer
the vague allegations levied against them. Accordingly, the
Plaintiff's Complaint is dismissed without prejudice for failure to
comply with Rule 8.
Additionally, the Plaintiff may not have been aware, but each of
his 15 claims is a separate cause of action that requires him to
allege different facts to state a claim, Judge O'Hearn opines. He
says the Plaintiff cannot rely solely on legal conclusions; the
Complaint must allege "sufficient factual matter" to show that the
claims are facially plausible. He therefore dismisses the Complaint
without prejudice and directs the Plaintiff to submit a proposed
amended complaint that addresses the issues discussed.
For all those reasons, Judge O'Hearn gives the Plaintiff an
opportunity to submit a proposed amended complaint that cures the
deficiencies he discussed. In particular, he says the Plaintiff
must include a separate section for each individual Defendant,
detailing the specific factual allegations and legal claims against
that individual Defendant only. He must do this for each Defendant.
In those individualized sections, he must also separate each legal
claim and explain how that particular Defendant committed that
alleged legal wrong.
Additionally, the Plaintiff must ensure that his proposed amended
complaint does not contain group pleading allegations. If he
continues to include group pleading allegations, the Court will
dismiss those allegations. Finally, Judge O'Hearn reminds the
Plaintiff that he cannot rely solely on legal conclusions;
complaints must allege "sufficient factual matter" to show that the
claims are facially plausible. The Plaintiff cannot allege that a
defendant committed a particular wrong without adequately
explaining the factual circumstances underlying each claim.
For the reasons he set forth, Judge O'Hearn dismisses without
prejudice the Plaintiff's Complaint for failure to comply with Rule
8. Additionally, he denies the Plaintiff's request to proceed as a
class action. Finally, he denies as moot the Plaintiff's various
requests for injunctive relief. The Plaintiff will have 30 days to
file a proposed amended complaint in accordance with the Opinion.
An appropriate Order follows.
A full-text copy of the Court's Dec. 13, 2022 Opinion is available
at https://tinyurl.com/3x68mbxd from Leagle.com.
CHARTER COMMUNICATIONS: Final Judgment in Winchester Suit Affirmed
------------------------------------------------------------------
In the case, COLLECTOR OF WINCHESTER, MISSOURI, AND CITY OF
WINCHESTER, MISSOURI, Respondents v. CHARTER COMMUNICATIONS, INC.,
AND CHARTER COMMUNICATIONS, LLC, Defendants, CHARTER
FIBERLINK-MISSOURI, LLC, AND CHARTER ADVANCED SERVICES (MO), LLC,
Appellants, Case No. ED109513 (Mo. App.), the Court of Appeals of
Missouri for the Eastern District, Division Four, affirms the final
judgment of the trial court.
Winchester, the Class representative, is a fourth-class city
located in St. Louis County. Since 1968, it has imposed a license
tax on businesses that supply "telephone or telephone service" in
Winchester under the Winchester Municipal Code Section 615.150.
The class action arose when Appellants Charter Fiberlink -
Missouri, LLC, and Charter Advanced Services (MO), LLC declined to
pay to the City of Winchester, Missouri, and to the 123 other
Missouri jurisdictions comprising the class, the business license
tax each jurisdiction imposed, pursuant to ordinance, on telephone
service providers doing business in their jurisdictions. Charter
opposed the taxes on a number of bases addressed below including
federal preemption in which Charter claims the technology it
employs to deliver its telephone service, known as "voice over
internet protocol" or VoIP, is not a "telecommunications service"
that Class Members may tax, but is an "information service" which
they may not.
Winchester instituted this action on July 9, 2010, and so began 10
years of litigation before the trial court -- the Honorable Michael
T. Jamison presiding -- in which the court issued numerous partial
judgments and orders.
In February, April, and May 2015, the trial court heard
Winchester's Rule 52.088 motion for class certification on behalf
of itself and 122 other municipalities/cities; again, St. Louis
County later became a member of the class in August 2015. On June
18, 2015, the trial court granted class certification.
Due to the differences among the different jurisdictions'
ordinances, the court created five subclasses under Rule
52.08(c)(4) for case management purposes. Charter unsuccessfully
challenged the trial court's grant of class certification by way of
writ petitions in this Court and in the Missouri Supreme Court.
The five subclasses are as follows:
Subclass 1: Class members that impose a license (or "gross
receipts") tax on businesses supplying or furnishing telephone
service, including telecommunications service;
Subclass 2: Class members that impose a license (or "gross
receipts") tax on businesses supplying or furnishing exchange
telephone service;
Subclass 3: Class members that do not separately define the
term "gross receipts" in their telephone license tax codes;
Subclass 4: Class members that generally define the term
"gross receipts" in their telephone license tax codes as excluding
"discounts, credits, refunds, sales taxes and sometimes other
taxes, such as license and uncollectible accounts"; and
Subclass 5: Class members that generally define the term
"gross receipts" in their telephone license tax codes as excluding
the following: such receipts as represent charges for message rate
toll, or long distance telephone service, charges for exclusive
interstate service of any kind, charges for Morse, telegraph,
television or radio program transmission facilities, or for other
services furnished exclusively and permanently in connection with
services extending beyond the boundaries of the city, charges for
the billing and collecting for telegrams, charge for the sale of
and advertising in telephone directories, charges for rental of
plant facilities or other property not currently used by any such
company in furnishing its telephone services, and charges which
combine both receipts which are herein taxed and which are herein
excepted in all cases in which the demonstrable cost to any such
telephone company, in making a separation between the revenues
taxed and those excepted, will exceed the evident revenue to be
derived therefrom by the city hereunder.
In its final judgment, the trial court found in favor of the Class
and ordered Charter to pay a total of $39,048,386 in damages
consisting of the unpaid taxes from July 9, 2005 to Dec. 22, 2020,
pre-judgment interest, post-judgment interest, attorney's fees, and
legal expenses.
Specifically, the trial court's December 2020 final judgment
found:
1. That the case was properly before it; thus rejecting
Charter's claim that it belonged in the various municipalities'
municipal courts;
2. That Charter Fiberlink and Charter Advanced owed and
continue to owe the taxes described in the court's November 2017
grant of partial summary judgment, and in the December 2019
judgment, as modified by the December 2020 final judgment;
3. That the total damages award was $39,048,386 consisting of
back-taxes owed, pre-judgment interest pursuant to Section 408.020
until August 28, 2012 and thereafter pursuant to Section 71.625.2
RSMo Cum. Supp. 2012, post-judgment interest, and attorney's fees
and legal expenses; and
4. That after deducting fees and expenses, the net award to
the Class was $28,972,239, which the trial court apportioned to the
Class Members.
Charter now appeals, raising a total of six points.
Points I, II, III, V, and VI relate to all Class Members, and Point
IV relates to St. Louis County only.3 In Points I and II, Charter
argues that given its use of VoIP technology to deliver telephone
service, the Telecommunications Act of 1996, 47 U.S.C. Sections 151
et seq. ("the Telecom Act of 1996" or "the Telecom Act"), and the
Cable Communications Policy Act of 1984, 47 U.S.C. Sections 521-573
("the Cable Act of 1984" or "the Cable Act"), preempt the Class
Members' business license tax ordinances at issue in this case.
In Point III, Charter asserts the trial court erred in finding that
Charter Fiberlink was a "telephone company" providing "telephone
service" subject to the Class Members' business license taxes
because the relevant tax-enabling statutes and the ordinances at
issue failed to define the terms "telephone company," "telephone,"
or "telephone service" to specifically include VoIP-enabled
telephone service. In Point V, Charter contends the trial court
erred by failing to give individualized treatment and effect to
each Class Member's ordinance language given differences among the
various ordinances.
In Point VI, Charter argues the trial court erred by hearing the
case at all because the alleged ordinance violations at issue here
should have been adjudicated in municipal court. And in Point IV,
Charter claims the trial court should have dismissed St. Louis
County from the case because Missouri's tax-enabling statute,
Section 66.300,4 grants first-class counties the power to tax
"exchange telephone service" and St. Louis County is no longer a
first-class county by virtue of a 1995 amendment to Missouri
Constitution Art. VI, Section 18(a).
The Court of Appeals first considers Charter's points on appeal
relating to all the Class Members -- Points Points I, II, III, V,
and VI.
Charter's Points I and II on appeal argue, respectively, that the
Telecom Act of 1996 and the Cable Act of 1984 preempt the Class
Members' business license tax ordinances at issue.
The Court of Appeals holds that these arguments have no merit. It
finds that the Class Members' business license tax ordinances are
local laws "pertaining to taxation," are covered by 47 U.S.C.
Section 152 note's tax savings provision, and are not preempted by
the Telecom Act. So it denies Point I.
Point II is also denied. The Court of Appeals finds that the
business license taxes imposed by the Class Members' ordinances are
taxes of general applicability that fit within the Cable Act's safe
harbor provision, Section 542(g)(2)(A), because the taxes do not
unduly discriminate against cable operators like Charter in that
they do not impose a tax on Charter "solely because of its status"
as a cable operator.
In Point III, Charter argues the trial court erred in finding that
Charter Fiberlink was a "telephone company" providing "telephone
service" subject to the Class Members' business license taxes
because the relevant tax-enabling statutes and the ordinances at
issue in this case failed to define the terms "telephone company,"
"telephone," or "telephone service" to specifically include
VoIP-enabled telephone service.
The Court of Appeals disagrees and holds the trial court correctly
found that pursuant to Missouri's license-tax-enabling statutes,
Sectons 94.110, 94.270, 94.360, and 66.300, Charter Fiberlink was a
"telephone company" that provided "telephone service" taxable at
the local level. Therefore, the trial court correctly found that
pursuant to Missouri's license-tax-enabling statutes, Sections
94.110, 94.270, 94.360, and 66.300, Charter Fiberlink was a
"telephone company" that provided "telephone service" taxable at
the local level. Hence, Point III is denied.
In Point V, Charter contends the trial court erred by failing to
give individualized treatment and effect to each Class Member's
ordinance language given the differences among the various
ordinances. It primarily contends the trial court erred in
calculating back taxes owed based on all revenue generated" by
Charter on its telephone business in each jurisdiction.
The Court of Appeals again disagrees because (1) the trial court
gave meaning to the language used in each Class Member's ordinance;
and (2) Charter's primary argument has no merit under Missouri law
including the Missouri Supreme Court's decision in City of Aurora
v. Spectra Communications Group, LLC, 592 S.W.3d 764. Additionally,
(3) to the extent Charter raises other arguments in this point,
they have no merit based on Aurora and the record in the case.
Based on the foregoing, Point V is denied.
In Point VI, Charter argues that since the case pertains to
municipal tax ordinance violations, the trial court lacked the
authority to hear the case and it should have been heard in
municipal court. We disagree because as a court of general
jurisdiction, the trial court had the authority to hear and decide
the Class Members' claims for declaratory and equitable relief.
Because the Class Member's claims for declaratory and injunctive
relief were properly brought in and adjudicated by the trial court,
Point VI is denied.
The final point for our consideration is Charter's Point IV, which
argues the trial court should have dismissed St. Louis County from
the case because Missouri's tax-enabling statute, Section 66.300,24
only grants first-class counties the power to tax "exchange
telephone service" and St. Louis County is no longer a first-class
county by virtue of the 1995 amendment to Art. VI, Section 18(a) of
the Missouri Constitution. Charter argues the 1995 amendment should
have retroactively repealed St. Louis County's license tax
Ordinance 5,214, that was enacted in 1969 pursuant to tax-enabling
statute Section 66.300.
The Court of Appeals disagrees with Charter's arguments concludes
that the 1995 amendment to Mo Const. art. VI, Section 18(a) was not
intended to be applied retroactively to effect a repeal of St.
Louis County's long-standing business license tax Ordinance 5,214
that was duly authorized by Section 66.300. Point IV is denied.
Because the Court of Appeals finds in favor of all Class Members on
Points I, II, III, V, and VI, and because it finds in favor of St.
Louis County on Point IV, it affirms the judgment of the trial
court.
A full-text copy of the Court's Dec. 13, 2022 Order is available at
https://tinyurl.com/48rh8y7r from Leagle.com.
CHICAGO, IL: Judge Greenlights Portions of Parking Class Action
---------------------------------------------------------------
Scott Holland, writing for Cook County Record, reports that a
federal judge has greenlit portions of a class action from people
who say the city of Chicago didn't give them sufficient notice
before scrapping vehicles the city impounded over unpaid parking
tickets.
The legal action dates to February 2020, when attorney Jacie Zolna
and others with the firm of Myron M. Cherry & Associates, of
Chicago, filed a complaint on behalf of named plaintiffs Danyetta
Walker and Joseph Walawski. The complaint is similar to a class
action the same lawyers filed in Cook County Circuit Court in
January 2019, but also names Mokena-based United Road Towing as a
defendant.
The plaintiffs' allegations are based in part on a 2019 WBEZ report
showing the city towed 19,665 legally parked cars in 2017 under a
city ordinance concerning unpaid tickets. If the vehicle owners
don't pay the ticketed amount, as well as the towing and impound
fees, the city would either use the car in its fleet or would sell
it through auction or "in the vast majority of cases" to a scrap
dealer, all without either paying the original vehicle owner or
putting the sale price toward any outstanding debt, according to
the report and the lawsuit.
In an opinion filed Dec. 6, U.S. District Judge Andrea Wood denied
portions of the city's motion to dismiss the complaint.
The city argued its practice of impounding and selling vehicles
doesn't violate Fifth Amendment takings clause protections because
it aligns with historical precedent regarding forfeiture
proceedings. Wood agreed, citing a 1996 U.S. Supreme Court opinion,
Bennis v. Michigan, and dismissed a count seeking an injunction and
damages, as well as the state law unjust enrichment claims built on
those allegations.
However, Wood would not dismiss takings clause claims relying on an
argument the city failed to follow municipal code requirements to
send a second notice to vehicle owners regarding impoundment and
disposal. Rather than argue the policy is unconstitutional, she
explained, the complaint contends disposal of cars without proper
notice "is not a lawful exercise of police power."
The next step is evaluating whether the complaint adequately
alleged the city confiscated private property for public use. Wood
said in 2017, United Road Towing "paid $4 million for 24,000
vehicles with a combined value of $22 million," with the surplus
value constituting some of the city's payment to the company.
Because those sales generated revenue for the Chicago operating
budget -- and because no credit was given toward outstanding debt
-- the complaint meets the bar for a public use allegation.
Wood further refused to dismiss counts seeking, on behalf of a
proposed "Notice Class," an injunction preventing disposal of
unclaimed vehicles without proper notice; a court order requiring
the city to send notices in compliance with city ordinance and the
Illinois Vehicle Code; as well as unjust enrichment claims against
the city and United Road Towing. She said the plaintiffs weren't
trying to sue under the city or state law, but seeking to establish
the practice is unlawful and therefore able to support the unjust
enrichment claim.
The plaintiffs also sought injunctions and damages under the Fourth
Amendment, as well as under the Illinois state constitution, under
the same standard. The city argued the complaint only challenged
the ultimate disposition of the vehicles and not the impoundment,
meaning it failed to state a claim for unlawful seizure.
Wood agreed, writing "the seizures here were complete when the
vehicles were towed and impounded; the subsequent sale, auction, or
destruction of the vehicles was not a further seizure."
Regarding surviving claims for injunctive and declaratory relief,
Wood said Walker has standing to pursue such relief because the
city can still impound her current car. However, she said the
complaint fails to show why Walawski would be subject to future
injury absent judicial intervention.
Wood further said United Road Towing can't be held liable under the
takings clause because, while the company is accused of carrying
out the challenged city policy, the company was not required by law
to send notices to anyone.
She would not, however, grant the company dismissal from any part
of the action under its attempt to invoke legal immunity through a
hold harmless provision of the Illinois Vehicle Code because that
protection is only available to actions that comply with the state
law, while the plaintiffs have alleged the city acted outside the
color of the statute. [GN]
CIBC MORTGAGES: Settlement Approval Hearing Set Feb. 6, 2023
-------------------------------------------------------------
This notice is directed to all natural persons who, from October
17, 2008 to June 30, 2022, paid to Defendants CIBC or CIBC
Mortgages Inc. (or to any of their affiliates) (collectively,
"CIBC") a mortgage prepayment charge in an amount that exceeds
three months of interest when either entirely or partially paying
off a hypothecary loan or a collateral hypothec relating to a
fixed-rate loan of a duration of five years or less on a property
located in the province of Quebec (the "Class Members").
The Settlement Approval Hearing will take place on February 6, 2023
at 9:30 a.m. in room 2.08 of the Montreal courthouse and by
videoconference. The courthouse is located at 1 Notre-Dame St.
East, Montréal, Quebec.
WHAT IS THIS CLASS ACTION ABOUT?
An action was brought by a Quebec resident against CIBC in
connection with the calculation based on an Interest Rate
Differential ("IRD") of certain prepayment charges on mortgages on
properties located in the province of Quebec, in S.C.M. file no.
500-06-000930-186, district of Montreal (the "Class Action"). The
Court authorized the Class Action on July 19, 2019, and the parties
have since agreed to settle the case.
WHO IS AFFECTED BY THIS CLASS ACTION?
This Class Action affects the rights of all Class Members.
If you are a Class Member, you are automatically included in the
Class Action and do not need to take any further steps right now to
participate. If you are eligible to receive compensation, you will
be required to submit a claims form if and after the Court approves
the Settlement described below.
WHAT SETTLEMENT HAS BEEN REACHED?
CIBC has agreed to pay the total amount of $3 million in settlement
of the Class Action (the "Settlement"). The Settlement provides for
pro rata cash payments to each eligible claimant up to a limit of
$3,000, depending on when they borrowed money and prepaid their
mortgage loan, the amount of their prepayment charges, as well as
on the total number of eligible claimants who will file a claim.
The $3,000 limit is a maximum and the settlement payments could be
less depending on, amongst other things, the number of claimants.
The Settlement also provides that Class Members who prepaid their
mortgage due to special circumstances, namely the death of a
co-borrower, the divorce from a co-borrower or an incapacitating
illness within 36 months prior to the prepayment will not be
subject to the $3,000 limit.
Please read the detailed notice and the Settlement Agreement for
more information.
At the Settlement approval hearing, Class Counsel will ask the
court to approve their legal fees of $900,000 plus taxes, plus
their disbursements and other expenses of up to $100,000 plus
taxes. If approved, Class Counsel's fees and disbursements will be
paid from the Settlement amount.
The Settlement is a compromise of disputed claims and is not an
admission of liability or wrongdoing by CIBC. In return for the
payment of the Settlement, the Settlement provides that the claims
of all Class Members asserted or which could have been asserted in
the Class Action will be fully and finally released. The Settlement
is subject to approval of the court, and Class Members have a right
to object to the Settlement.
HOW DOES THIS AFFECT ME AND WHAT ARE MY OPTIONS?
If you wish to remain a member of the Class Action and benefit from
this Settlement, you have no steps to take. However, if you do not
wish to be bound by the Class Action and this Settlement for any
reason whatsoever (including taking legal action on your own at
your expense), you must take steps to exclude yourself (opt-out)
from the Class Action, which will result in your exclusion from the
Settlement.
To exclude yourself, you must send a completed opt-out form
("Opt-Out Form") containing your name and contact information by:
(i) mail addressed to the clerk of the Superior Court of Quebec, at
1, Notre-Dame Street East, Montreal, QC, H2Y 1B6, duly signed by
yourself and containing the Court docket number of the Class Action
(500-06-000930-186); or
(ii) email to Class Counsel at jzukran@lpclex.com.
The Opt-Out Form must, in all cases, be received by January 31,
2023.
A Class Member who opts out will not be entitled to participate in
the Class Action. However, his or her right to pursue a claim in a
separate proceeding will not be affected. Once a Class Member opts
out, the limitation period applicable to their claim will begin to
run again.
If a Class Member does not timely and properly opt out of the Class
Action, or does not timely and properly file a claims form with the
Claims Administrator, he or she will be forever barred from
receiving any benefits under the Settlement, and from commencing or
continuing any action against CIBC relating to the conduct and
facts alleged in the Class Action, including, without limitation,
any similar claims arising out of or resulting from the payment of
the prepayment charge as alleged in the Class Action.
If you would like to object to the Settlement, you can set out your
objection in writing to the Court or to Class Counsel, or you can
attend the hearing for the approval of Settlement.
As a Class Member, you have the right to intervene in the present
Class Action in the manner provided by law. No Class Member other
than the Plaintiff or an intervenor may be required to pay legal
cost arising from the Class Action.
WHERE CAN I GET MORE INFORMATION?
For more information about your rights and how to exercise them,
please see the long-form notice and the Settlement online:
WWW.LPCLEX.COM/CIBCIRDSETTLEMENT
WHO IS CLASS COUNSEL?
The law firm of LPC Avocat Inc. represents the Class Members. You
may contact Class Counsel listed below. Your name and any
information provided will be kept confidential.
Mtre Joey Zukran
Telephone: (514) 379-1572
Email: jzukran@lpclex.com
276, Saint-Jacques Street, Suite 801, Montreal, QC, H2Y 1N3
This notice is only a summary of the detailed notice, which you can
view at WWW.LPCLEX.COM/CIBCIRDSETTLEMENT. In case of discrepancies
between this notice and the Settlement, the latter shall prevail.
This notice was authorized by the Superior Court of Quebec. [GN]
COINBASE INC: Bielski's Bid to Name Interim Class Counsel Denied
----------------------------------------------------------------
In the case, ABRAHAM BIELSKI, et al., Plaintiffs v. COINBASE, INC.,
Defendant, Case No. C 21-07478 WHA (N.D. Cal.), Judge William Alsup
of the U.S. District Court for the Northern District of California
denies the Plaintiffs' motion to appoint interim class counsel.
Plaintiffs Abraham Bielski, Dzhura Binyaminov, and Auryan Sajjadi
seek to represent classes of similarly situated individuals with
claims against the Defendant for violations of the Electronic Funds
Transfer Act and Regulation E, as well as associated state statutes
and common law duties.
The Plaintiffs created accounts on the Defendant's cryptocurrency
exchange platform. They eventually realized that unauthorized
electronic transfers depleted their account balances and
immediately notified the Coinbase support team. Coinbase did not
undertake good faith efforts to investigate and remedy the alleged
thefts. It also had not provided the Plaintiffs with initial
disclosures required before electronic fund transfers were ever
made from their accounts, or so it is alleged.
According to the Plaintiffs' complaint, the Defendant has failed to
meet its legal obligations as a financial institution and deliver
on its promises of security for consumers. It ostensibly left those
who relied on its representations vulnerable to scammers and those
who were scammed trapped in a customer-service nightmare.
On behalf of two classes and two state-specific subclasses, the
Plaintiffs seek compensatory damages, statutory damages, treble
damages, restitution, disgorgement, punitive damages, and fees and
costs. The sole question under consideration in the present Order,
however, is whether interim class counsel is needed now and, if so,
whether the Plaintiffs' lawyers should be appointed interim class
counsel.
Judge Alsup explains that Rule 23(g)(1)(A) lists factors a court
must consider in selecting interim class counsel, if it is to be
done at all: (i) the work counsel has done in identifying or
investigating potential claims in the action; (ii) counsel's
experience in handling class actions, other complex litigation, and
the types of claims asserted in the action; (iii) counsel's
knowledge of the applicable law; and (iv) the resources that
counsel will commit to representing the class. Rule 23(g)(1)(B)
provides that a court "may consider any other matter pertinent to
counsel's ability to fairly and adequately represent the interests
of the class," such as efficiency and economy.
In their motion, the Plaintiffs argue that the Rule 23(g)(1)
factors support the appointment of their legal team from Tycko &
Zavareei LLP as the interim class counsel. They emphasize that
their lawyers, consistent with Rule 23(g)(1)(A), have effectively
and efficiently investigated potential claims and advocated for
Bielski on appeal; have demonstrated experience litigating complex
class actions involving financial institutions, as well as
knowledge of the relevant substantive law; and have prepared to
commit the requisite resources for effective representation in the
action. They also submit that other considerations support their
lawyers' appointment as interim class counsel under Rule
23(g)(1)(B).
In its opposition to the Plaintiffs' motion, the Defendant "does
not take a position at this time" on whether the Plaintiffs'
lawyers satisfy the Rule 23(g)(1) factors. Rather, it contends the
appointment of interim class counsel would be premature.
Judge Alsup agrees with the Defendant that appointment of interim
class counsel would be premature. He acknowledges that more related
and similar actions will likely be filed, with scammers (and
perhaps even some lawyers) eager to capitalize on dramatic booms
and busts in cryptocurrency markets. And it recognizes that an
interim class counsel appointment may be warranted later. But at
the moment this seems more like an attempt by the Plaintiffs'
lawyers to jockey for position among different cases that may
eventually wind up in an MDL. In that event, he says it would be
best to leave to the MDL judge who should become interim class
counsel.
Moreover, while the arbitration issue is on appeal, the parties
have stipulated to a stay of class discovery herein. There is a
risk that, depending on the timing and outcome of this appeal,
appointing interim class counsel today could result in a variety of
negative consequences for the putative classes tomorrow. Of course,
such negative consequences could never come to pass, but the task
for this order is to "designate interim counsel if necessary to
protect the interests of the putative class." According to Judge
Alsup, taking a risk that could frustrate the putative classes is
not "necessary" to protecting their interests right now.
At the hearing, the Plaintiffs' counsel identified another risk:
defendant might enter into a "sweetheart" settlement, perhaps with
the blessing of a different court, to the prejudice of the putative
classes. According to Plaintiffs' counsel, if appointed interim
class counsel, the Plaintiffs' lawyers could object and thereby
stop an inadequate settlement that would undermine putative class
interests.
Mindful of this concern, Judge Alsup addressed it during the
hearing. The Defendant agreed to give the Plaintiffs' counsel and
the Court immediate notice upon even beginning to negotiate a
settlement elsewhere that could affect the putative classes -- at
which point an interim counsel appointment might be appropriate.
In sum, while the Court has discretion to appoint interim counsel
to act on behalf of a putative class, Judge Alsup exercises his
discretion not to do so at this time. He denies the Plaintiffs'
motion to appoint interim class counsel.
A full-text copy of the Court's Dec. 13, 2022 Order is available at
https://tinyurl.com/mrxztsyw from Leagle.com.
COMPOUND DAO: Bids for Lead Plaintiff Appointment Due February 7
----------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, on Dec. 12
announced the filing of a class action lawsuit on behalf of
purchasers and acquirers of Compound DAO tokens (COMP), on or after
December 8, 2021, against defendants Compound DAO, Robert Leshner,
Geoffrey Hayes, AH Capital Management, LLC, Polychain Alchemy, LLC,
Bain Capital Ventures (GP), LLC, Gauntley Networks, Inc., and
Paradigm Operations LP. A class action lawsuit has already been
filed. If you wish to serve as lead plaintiff, you must move the
Court no later than February 7, 2023.
SO WHAT: If you purchased or acquired COMP on or after December 8,
2021 you may be entitled to compensation without payment of any out
of pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the COMP class action, go to
https://rosenlegal.com/submit-form/?case_id=10349 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than February 7, 2023.
A lead plaintiff is a representative party acting on behalf of
other class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Be wise in selecting counsel. The
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, Compound DAO offered
and sold COMP, a digital token that is an unregistered security.
To join the COMP class action, go to
https://rosenlegal.com/submit-form/?case_id=10349 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contacts
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
DAILY BREEZE: Cal. App. Affirms Dismissal of Salgado Class Claims
-----------------------------------------------------------------
In the case, IGNACIO SALGADO, Plaintiff and Appellant v. THE DAILY
BREEZE, et al., Defendants and Respondents, Case No. B309434 (Cal.
App.), the Court of Appeals of California for the Second District,
Division Two, affirms the trial court's order of dismissal.
The appeal is taken from an order granting a motion to dismiss
class claims in an action where the class has lacked a living class
representative for seven years. The class was initially certified
in 2014 under the case caption Ignacio Salgado, Individually and on
Behalf of Other Members of the General Public Similarly Situated v.
The Daily Breeze et al. (Super. Ct. L.A. County, 2015, No.
BC458074).
The Defendants in the matter, and Respondents on appeal, are
MediaNews Group, Inc. (MNG), Torrance Holdings, LLC, doing business
as the Daily Breeze, and Long Beach Publishing, LLC, doing business
as Long Beach Press Telegram. The lawsuit asserted a claim for
reimbursement of business expenses on behalf of the class under
Labor Code sections 2800 and 2802.
Respondent MNG owns respondents Torrance Holdings, LLC, and Long
Beach Publishing, LLC, which publish the Daily Breeze and the Press
Telegram, respectively. Between 2007 and 2011, the Daily Breeze and
the Press Telegram contracted with third party independent
contractors, including Salgado, for home delivery of newspaper
products.
On March 24, 2011, Salgado filed a putative class action alleging
nine claims predicated on the theory that, although he had executed
independent contractor agreements with respondents, he was, in
fact, an employee. Among other claims, Salgado asserted that
respondents maintained a company-wide policy not to reimburse
Salgado and other putative class members for necessary business
expenses incurred in carrying out their required duties.
The trial court certified four causes of action for class
treatment: (1) fourth cause of action for failure to provide
correct itemized wage statements; (2) fifth cause of action for
unreimbursed business expenses; (3) sixth cause of action for
failure to maintain employee records; and (4) ninth cause of action
for unfair business practices. The remaining claims proceeded as
individual claims.
After class certification, the Respondents moved for summary
judgment or, in the alternative, summary adjudication as to all
claims. On May 26, 2015, the trial court granted the Respondents'
motion for summary judgment, and entered judgment in their favor.
Salgado died on Aug. 17, 2015. On Dec. 22, 2015, the probate court
appointed Salazar as special administrator of Salgado's estate for
the purpose of Salgado's individual interest in the class action.
Despite appearing at an Oct. 19, 2015 hearing, the class counsel
did not inform the trial court of Salgado's death until Dec. 23,
2015, simultaneous with the counsel's filing of their notice of
appeal from the judgment.
On June 6, 2018, the Court of Appeals reversed the trial court's
grant of summary judgment as to the fifth cause of action for
unreimbursed business expenses. On Aug. 6, 2018, it issued a
remittitur and sent the case back to the trial court. The class
counsel submitted a peremptory challenge to the judge that granted
the summary judgment motion, and the matter was reassigned for all
purposes.
At issue in this appeal is whether the class claims were properly
dismissed due to the lack of an adequate class representative.
While Jaime Salazar has been substituted as a representative of
Salgado's estate as to Salgado's personal claims, he was never
substituted as class representative in this matter. No formal
motion for substitution of the class representative was ever
granted, or even heard. Thus, there is no living appellant in this
matter.
The parties disagree regarding the issue on appeal and the standard
of review. The class counsel asserts that the court's decision to
dismiss the certified class even though the late representative's
estate has stepped in is a legal issue to be reviewed de novo. The
class counsel assert that (1) Salgado was found to be an adequate
representative of the class; (2) Salazar was properly named
representative of the Salgado estate; (3) Salazar has adequately
performed his duties as the substituted class representative; and
(4) California law permits class actions to continue to be
maintained by a deceased representative's estate.
The Respondents, on the other hand, suggest that on review of a
class certification order, an appellate court's inquiry is narrowly
circumscribed.
Upon review of the trial court's written order, the Court of
Appeals agrees with the Respondents that the trial court decision
was a discretionary decision based on the class counsel's failure
to propose a new class representative upon the demise of Salgado.
The trial court did not base its decision on a blanket statement of
law, but on its determination that class counsel had delayed
proposing new class counsel for too long and showed no efforts to
find a suitable replacement for Mr. Salgado.
The suitability of the named class representative is a
determination that is within the discretion of the trial court. The
Court of Appeals reviews the record to determine whether the facts
support the court's actions. The class counsel takes the position
on appeal that Salazar had already "stepped in" to Salgado's role
as class counsel.
The Court of Appeals finds that the class counsel have failed to
provide legal authority for their position that Salazar simply
stepped into the role of class representative or that such
automatic recognition of an individual would have been appropriate.
Thus, it concludes, as the trial court did, that there was no
properly approved or designated class representative since the time
of Salgado's death in 2015. Under the circumstances, it was within
the trial court's discretion to dismiss the class claim.
In the event that the Respondents' motion to decertify the class
was granted in the trial court, the class counsel sought a
continuance to amend the class complaint and propose a new class
representative. The trial court found that class counsel had not
made an adequate showing.
The Court of Appeals reviews the trial court's decision on the
class counsel's request for a continuance and leave to amend for
abuse of discretion. It finds that the class counsel cite no
evidence in the record that the class counsel has made any efforts
to obtain a substitute class representative in this decade-old
case. Under the circumstances, the Court of Appeals finds that the
trial court did not abuse its discretion in declining to grant the
requested continuance.
In light of the foregoing, the order of dismissal is affirmed. The
Respondents are awarded costs of appeal.
A full-text copy of the Court's Dec. 13, 2022 Opinion is available
at https://tinyurl.com/rdr8h3bu from Leagle.com.
Trush Law Office, James M. Trush -- info@trushlaw.com; Marlin &
Saltzman, Stanley D. Saltzman, Cody R. Kennedy, Joel M. Gordon; Law
Offices of Timothy Donahue and Timothy J. Donahue --
tdonahue@attorneydonahue.com -- for the Plaintiff and Appellant.
Perkins Coie, Jill L. Ripke -- jripke@perkinscoie.com -- and Lauren
M. Kulpa -- lkulpa@perkinscoie.com -- for the Defendants and
Respondents.
DEUTSCHE BANK: Manipulates Euro Bonds' Price, Pension Funds Claim
-----------------------------------------------------------------
OHIO CARPENTERS' PENSION FUND, ELECTRICAL WORKERS PENSION FUND
LOCAL 103 I.B.E.W., and SAN BERNARDINO COUNTY EMPLOYEES' RETIREMENT
ASSOCIATION, on behalf of themselves and all others similarly
situated, Plaintiffs v. DEUTSCHE BANK AG, DEUTSCHE BANK SECURITIES
INC., COOPERATIEVE RABOBANK U.A. (F/K/A COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK U.A.), and RABO SECURITIES USA, INC.,
Defendants, Case No. 1:22-cv-10462 (S.D.N.Y., December 9, 2022) is
a class action against the Defendants for violation of Section 1 of
the Sherman Act.
The case arises from the Defendants' and their co-conspirators'
anticompetitive scheme to fix, raise, maintain, stabilize, or
otherwise manipulate the price of Euro-denominated bonds issued by
European governments and sold and purchased throughout the U.S.
from at least as early as January 1, 2005 through at least December
31, 2016. The Defendants and their co-conspirators agreed to fix
the bid-ask spreads of European government bonds in the secondary
market. No dealer could widen its bid-ask prices unilaterally
without losing trading business to its competitors. In furtherance
of the scheme, the Defendants and their co-conspirators exchanged
commercially sensitive information, including the prices they
offered to customers, and coordinated on trading strategies. This
conduct benefitted the Defendants, to the detriment of investors in
the market, including the Plaintiffs and the Class, says the suit.
Ohio Carpenters' Pension Fund is a Taft-Hartley multi-employer
pension fund located in Ohio.
Electrical Workers Pension Fund Local 103 I.B.E.W. is a
defined-benefit plan located in Dorchester, Massachusetts.
San Bernardino County Employees' Retirement Association (SBCERA) is
a public pension plan in California.
Deutsche Bank AG is a banking company located at Taunusanlage 12,
60325 Frankfurt am Main, Germany.
Deutsche Bank Securities Inc. is a financial services firm, located
in New York, New York.
Cooperatieve Rabobank U.A. is a banking firm, located in the
Netherlands.
Rabo Securities USA, Inc. is a financial services firm, located in
New York, New York. [BN]
The Plaintiffs are represented by:
Gregory S. Asciolla, Esq.
Matthew J. Perez, Esq.
Veronica Bosco, Esq.
DICELLO LEVITT LLC
485 Lexington Avenue, Suite 1001
New York, NY, 10017
Telephone: (646) 933-1000
E-mail: gasciolla@dicellolevitt.com
mperez@dicellolevitt.com
vbosco@dicellolevitt.com
- and -
Kristen M. Anderson, Esq.
Donald A. Broggi, Esq.
Michelle E. Conston, Esq.
Patrick J. Rodriguez, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
The Helmsley Building
230 Park Ave., 17th Floor
New York, NY 10169
Telephone: (212) 223-6444
Facsimile: (212) 223-6334
E-mail: kanderson@scott-scott.com
dbroggi@scott-scott.com
mconston@scott-scott.com
prodriguez@scott-scott.com
- and -
Vincent Briganti, Esq.
Roland R. St. Louis, III, Esq.
LOWEY DANNENBERG, P.C.
44 South Broadway, Suite 1100
White Plains, NY 10601
Telephone: (914) 997-0500
Facsimile: (914) 997-0035
E-mail: vbriganti@lowey.com
rstlouis@lowey.com
- and -
Brian M. Hogan, Esq.
DICELLO LEVITT LLC
Ten North Dearborn Street, Sixth Floor
Chicago, IL 60602
E-mail: bhogan@dicellolevitt.com
- and -
Daniel J. Brockwell, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
600 W. Broadway, Suite 3300
San Diego, CA 92101
Telephone: (619) 233-4565
Facsimile: (619) 233-0508
E-mail: dbrockwell@scott-scott.com
- and -
Charles Kopel, Esq.
LOWEY DANNENBERG, P.C.
One Tower Bridge
100 Front Street, Suite 520
West Conshohocken, PA 19428
Telephone: (215) 399-4770
Facsimile: (610) 862-9777
E-mail: ckopel@lowey.com
- and -
David R. Scott, Esq.
Amanda Lawrence, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
156 South Main Street
P.O. Box 192
Colchester, CT 06415
Telephone: (860) 537-5537
Facsimile: (860) 537-4432
E-mail: david.scott@scott-scott.com
alawrence@scott-scott.com
- and -
Joseph J. Tabacco, Jr.
Todd A. Seaver, Esq.
Carl N. Hammarskjold, Esq.
Christina Sarraf, Esq.
BERMAN TABACCO
425 California Street, Suite 2300
San Francisco, CA 94104
Telephone: (415) 433-3200
Facsimile: (415) 433-6382
E-mail: jtabacco@bermantabacco.com
tseaver@bermantabacco.com
chammarskjold@bermantabacco.com
csarraf@bermantabacco.com
DOMINION VOTING: Sanctions on Attorneys in O'Rourke Suit Affirmed
-----------------------------------------------------------------
In the case, KEVIN O'ROURKE; NATHANIEL L. CARTER; LORI CUTUNILLI;
LARRY D. COOK; ALVIN CRISWELL; KESHA CRENSHAW; NEIL YARBROUGH; AMIE
TRAPP, Plaintiffs v. DOMINION VOTING SYSTEMS, INC., a Delaware
corporation; FACEBOOK, INC., a Delaware corporation; CENTER FOR
TECH AND CIVIC LIFE; GRETCHEN WHITMER, individually; JOCELYN
BENSON, individually; TOM WOLF, individually; KATHY BOOCKVAR,
individually, Defendants-Appellees, and MARK E. ZUCKERBERG,
individually; PRISCILLA CHAN, individually; BRIAN KEMP,
individually; BRAD RAFFENSPERGER, individually; TONY EVERS,
individually; ANN S. JACOBS; MARK L. THOMSEN, individually; MARGE
BOSTELMAN, individually; JULIE M. GLANCEY, individually; DEAN
KNUDSON, individually; ROBERT F. SPINDELL, JR., individually; DOES
1-10,000, Defendants. GARY D. FIELDER; ERNEST J. WALKER,
Attorneys-Appellants, Case No. 21-1442 (10th Cir.), the U.S. Court
of Appeals for the Tenth Circuit affirms the district court's order
requiring the Attorneys to pay the Defendants a total of
$186,922.50 as sanctions under the Court's inherent powers, Federal
Rule of Civil Procedure 11, and 28 U.S.C. Section 1927.
Gary D. Fielder and Ernest J. Walker, the attorneys for the
Plaintiffs in the underlying action ("the Attorneys"), appeal from
the district court's order requiring them to pay the Defendants a
total of $186,922.50 as sanctions under the court's inherent
powers, Federal Rule of Civil Procedure 11, and 28 U.S.C. Section
1927.
The Plaintiffs sought to pursue a civil-rights class action
alleging that the Defendants violated the constitutional rights of
every person registered to vote in the November 2020 election for
President of the United States. They based their standing on their
status as registered voters. For relief, they sought a declaratory
judgment, a permanent injunction enjoining Defendants from
continuing to burden the rights of Plaintiffs and all similarly
situated registered voters, and 'nominal' damages of $1,000 per
registered voter, totaling approximately $160 billion.
Among the Defendants were Dominion Voting Systems, Inc., Facebook,
Inc. (now known as Meta Platforms, Inc.)), and the Center for Tech
and Civic Life ("CTCL"). These three Defendants moved to dismiss on
various grounds, including that the Plaintiffs lacked standing
because they sought to assert only non-justiciable, generalized
grievances. The Plaintiffs opposed the motions to dismiss, but then
moved for leave to file an amended complaint that would add new
plaintiffs and new claims, including claims under the Racketeer
Influenced and Corrupt Organizations Act. Dominion, Facebook, and
CTCL opposed the motion to amend.
Other Defendants included the governors and secretaries of state of
Michigan and Pennsylvania, named in their individual capacities.
These four Defendants moved to dismiss, alleging not only that the
Plaintiffs lacked standing but that the District of Colorado lacked
personal jurisdiction over them. And they opposed the Plaintiffs'
motion to amend, as they were named as Defendants in the proposed
amended complaint. Before the district court decided the
Defendants' various motions to dismiss, however, the Plaintiffs
voluntarily dismissed their claims against the Michigan and
Pennsylvania Defendants.
The district court, a magistrate judge presiding by consent of the
parties, entertained argument on the motions to dismiss and the
motion to amend. After hearing from Dominion, Facebook, and CTCL,
the district court pressed the Attorneys on the question of their
clients' standing, specifically whether they could show any
particularized injury.
Ultimately, in light of the voluntary dismissal, the district court
denied the Michigan and Pennsylvania Defendants' motions to dismiss
as moot. It thus granted the Defendants' motions to dismiss, denied
the Plaintiffs' motion to amend, and dismissed the action for lack
of Article III jurisdiction.
Dominion, Facebook, and CTCL then moved for an award of their
attorney's fees under Rule 11, Section 1927, and the court's
inherent powers, and the Michigan and Pennsylvania Defendants moved
for an award of their attorney's fees under Section 1927 and the
court's inherent powers. After briefing and oral argument before
the district court, the Attorneys moved for an evidentiary hearing.
Noting that the motions already had been submitted, the district
court denied the request as untimely.
The district court granted all the Defendants' motions for
sanctions and ordered the Attorneys to pay the Defendants' fees
incurred for preparing and arguing their motions to dismiss and
their oppositions to the Plaintiffs' motion to amend. It
subsequently denied the Attorneys' Federal Rule of Civil Procedure
59(e) motion (except to correct a prior statement that the Michigan
Defendants had sought sanctions under Rule 11). The sanctions
awards totaled $186,922.50: $62,930 to Dominion, $50,000 to
Facebook, $62,930 to CTCL, $4,900 to the Michigan Defendants, and
$6,162.50 to the Pennsylvania Defendants.
In the meantime, the Plaintiffs appealed from the dismissal of
their action. The Court of Appeals affirmed the dismissal for lack
of standing, holding that the district court correctly applied the
generalized grievance doctrine. It further upheld the denial of the
motion to amend on grounds of futility. The Supreme Court denied
the Plaintiffs' petition for a writ of certiorari.
The Attorneys now appeal from the sanctions order, making two
arguments regarding sanctions under the district court's inherent
powers. First, they argue that the district court should not have
imposed inherent-powers sanctions because the Defendants did not
argue that their conduct fell outside the scope of Rule 11 and
Section 1927. Second, they contend that the record does not support
the imposition of inherent-powers sanctions.
The Court of Appeals affirms the imposition of sanctions under the
district court's inherent powers.
First, the Court of Appeals finds that it need not look beyond the
issues of standing and personal jurisdiction to conclude the
district court did not abuse its discretion in finding that the
Attorneys acted in bad faith, vexatiously, wantonly, or for
oppressive reasons. It says the Plaintiffs' arguments regarding
standing were so inadequate that it was not an abuse of discretion
for the district court to conclude that the claims were made in bad
faith, vexatiously, wantonly, or for oppressive reasons, such as to
support inherent-powers sanctions. The Attorneys also concede that
they dismissed their claims against these Defendants because there
was, admittedly, an issue over the Plaintiffs' ability to establish
personal jurisdiction.
Next, the Court of Appeals affirms the imposition of sanctions
under Section 1927. It says although the awards were payable due to
the work of the respective states' offices of the attorneys
general, the Attorneys have failed to demonstrate any lack of
standing by the defendants to seek sanctions. It was not an abuse
of discretion also for the district court to conclude that the
Attorneys unreasonably and vexatiously multiplied the proceedings
by moving to amend their complaint, including adding RICO claims,
without showing that the plaintiffs had standing to bring their
claims.
The Court of Appeals further finds that where the Plaintiffs'
arguments regarding standing and personal jurisdiction were utterly
baseless, the Attorneys have failed to establish that the district
court's sanctions violated their First Amendment rights. It has
long been accepted also that the sanction inquiry may properly be
limited to the record in most instances. The Attorneys have not
shown that the case falls outside the general rule, particularly
when their request for an evidentiary hearing was untimely.
Finally, the Court of Appeals holds that the sanctions awards were
not an abuse of discretion. It says the Attorneys fail to convince
it that the district court awarded punitive sanctions, rather than
compensatory sanctions, and that the award was excessive and
unreasonable.
For these reasons, the district court's sanctions order is
affirmed.
A full-text copy of the Court's Dec. 13, 2022 Order & Judgment is
available at https://tinyurl.com/5extxvh8 from Leagle.com.
ELECTROLUX AB: Parker Sues Over Cooking Ranges' Concealed Defect
----------------------------------------------------------------
SANDRA PARKER, individually and on behalf of all others similarly
situated, Plaintiff v. ELECTROLUX AB and ELECTROLUX NORTH AMERICA,
Defendants, Case No. 1:22-cv-01177 (W.D. Mich., December 9, 2022)
is a class action against the Defendants for fraud by omission,
breach of express warranty, breach of the implied warranty of
merchantability, unjust enrichment, and violations of Magnuson Moss
Warranty Act and the Michigan Consumer Protection Act.
According to the complaint, the Defendants are engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
the Electrolux Ranges. The Defendants' Ranges include dangerous
latent defects in the design, or in the manufacture, of their
front-mounted burner control knobs that make the Ranges susceptible
to unintentional actuation. This defect creates hazardous
conditions and serious risk of fire, property damage, and personal
injury. Electrolux has not implemented an effective remedy for
consumers who are at risk because of the defect and failed to
provide effective repairs despite being made aware of the problem.
As a result of Electrolux's concealment of the defect, its failure
to warn its customers of the defect and the safety risks posed by
the Ranges, the Plaintiff and the Class purchased Electrolux's
defective and unsafe Ranges, says the suit.
Electrolux AB is a home appliance manufacturer, headquartered in
Stockholm, Sweden.
Electrolux North America is a wholly owned subsidiary of Electrolux
AB, with its headquarters in Charlotte, North Carolina. [BN]
The Plaintiff is represented by:
David H. Fink, Esq.
Nathan J. Fink, Esq.
FINK BRESSACK
38500 Woodward Ave., Suite 350
Bloomfield Hills, MI 48304
Telephone: (248) 971-2500
E-mail: dfink@finkbressack.com
nfink@finkbressack.com
FAT BRANDS: $3MM Class Settlement Hearing Set on Feb. 28, 2023
--------------------------------------------------------------
The Rosen Law Firm, P.A. on Dec. 12 disclosed that the United
States District Court for the Central District of California has
approved the following announcement of a proposed securities class
action settlement that would benefit purchasers of FAT Brands Inc.
publicly traded securities (NASDAQ: FAT) (NASDAQ: FATBB) (NASDAQ:
FATBP) (NASDAQ: FATBW):
SUMMARY NOTICE OF PENDENCY AND PROPOSED CLASS ACTION SETTLEMENT
TO: ALL PERSONS WHO PURCHASED THE PUBLICLY-TRADED SECURITIES OF FAT
BRANDS, INC. ("FAT BRANDS") FROM DECEMBER 4, 2017 THROUGH FEBRUARY
18, 2022, BOTH DATES INCLUSIVE.
YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States
District Court for the Central District of California, that a
hearing will be held on February 28, 2023, at 9:00 a.m. before the
Honorable Mark C. Scarsi, United States District Judge of the
United States District Court for the Central District of
California, First Street Federal Courthouse, 350 W. First Street,
Courtroom 7C, Los Angeles, CA 90012, or by telephonic or
videoconference means as directed by the Court, for the purpose of
determining:
(1) whether the proposed Settlement of the claims in the
above-captioned Action for consideration including the sum of
$3,000,000 ("Settlement Amount") should be approved by the Court as
fair, reasonable, and adequate;
(2) whether the proposed plan to distribute the Settlement proceeds
is fair, reasonable, and adequate;
(3) whether the application of Lead Counsel for an award of
attorneys' fees of up one third of the Settlement Amount,
reimbursement of expenses of not more than $45,000, and an award of
no more than $1,500 each, or $3,000 total, to Plaintiffs, should be
approved; and
(4) whether this Action should be dismissed with prejudice as set
forth in the Stipulation of Settlement, dated September 23, 2022
("Stipulation").
If you purchased FAT Brands securities during the period from
December 4, 2017 through February 18, 2022, both dates inclusive
("Settlement Class Period"), your rights may be affected by this
Settlement, including the release and extinguishment of claims you
may possess relating to your ownership interest in FAT Brands
securities.
If you have not received a postcard providing instructions for
receiving a detailed Notice of Pendency and Proposed Settlement of
Class Action ("Long Notice") and a copy of the Proof of Claim and
Release Form ("Proof of Claim"), you may obtain copies by writing
to or calling FAT Brands Inc. Securities Litigation, c/o Strategic
Claims Services, 600 N. Jackson St., Ste. 205, P.O. Box 230, Media,
PA 19063; (Tel) (866) 274-4004; (Fax) (610) 565-7985;
info@strategicclaims.net, or going to the website,
www.strategicclaims.net/FAT. If you are a member of the Settlement
Class, in order to share in the distribution of the Net Settlement
Fund, you must submit a properly completed Proof of Claim
electronically or postmarked no later than January 28, 2023 to the
Claims Administrator, establishing that you are entitled to
recovery. Unless you submit a written exclusion request, you will
be bound by any judgment rendered in the Action whether or not you
make a claim.
If you desire to be excluded from the Settlement Class, you must
submit a request for exclusion in the manner and form explained in
the Long Notice to the Claims Administrator so that it is received
no later than February 7, 2023. All members of the Settlement Class
who have not requested exclusion from the Settlement Class will be
bound by any judgment entered in the Action.
Any objection to the Settlement, Plan of Allocation, or Lead
Counsel's request for an award of attorneys' fees and reimbursement
of expenses and an award to Plaintiffs must be in the manner and
form explained in the Long Notice and received no later than
February 7, 2023, by each of the following:
Clerk of the Court
United States District Court
Central District of California
First Street Federal Courthouse
350 W. First Street, Suite 4311
Los Angeles, CA 90012
LEAD COUNSEL:
THE ROSEN LAW FIRM, P.A.
Phillip Kim
275 Madison Avenue, 40th Floor
New York, NY 10016
COUNSEL FOR DEFENDANTS:
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
John P. Stigi III
1901 Avenue for the Stars, Suite 1600
Los Angeles, CA 90067
If you have any questions about the Settlement, you may call or
write to Lead Counsel:
THE ROSEN LAW FIRM, P.A.
Phillip Kim
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: 212-686-1060
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE.
Dated: November 8, 2022
BY ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA [GN]
FORBES MEDIA: Faces Class Action Over Illegal Video Data Sharing
----------------------------------------------------------------
Christopher Brown, writing for Bloomberg Law, reports that Forbes
Media LLC disclosed users' personal information and video-viewing
histories to Facebook Inc. without their consent in violation of
the Video Privacy Protection Act, a new federal class action said.
Salomon Passariello alleged that Forbes Media installed computer
code on its website that records how users interact with the
website and sends the resulting information, including about videos
viewed on the website, to Facebook, now known as Meta Platforms
Inc.
The VPPA prohibits video providers from disclosing the personal
information and viewing history of its users and customers, the
lawsuit said.
The computer code at issue is the Meta Tracking Pixel.
COURT: C.D. Cal.
TRACK DOCKET: No. 2:22-cv-8908
JUDGE: Percy Anderson
COMPANY INFO: Forbes Media LLC [GN]
HAMILTON COUNTY, TN: Former Resident Sues Over Motel Eviction
-------------------------------------------------------------
Leslie Dominique, writing for NewsChanel9, reports that another
lawsuit is being filed on behalf of a former Budgetel resident,
after many were evicted from the motel with little notice last
month.
There are over 10 defendants in this lawsuit, filed by Attorney
Robin Flores, including the City of East Ridge, the Hamilton
country government and multiple East ridge antique stores and
businesses.
The lawsuit alleges that Charles Burkhaulter and others had their
4th amendment rights violated.
The lawsuit is class-action, claiming to be made up of all
residents of the Budgetel who were removed.
Burkhalter was the plaintiff in a federal lawsuit filed against
Hamilton Co. DA Wamp, but it was dropped once East Ridge Police
Department allowed Burkhalter to retrieve his possessions from the
Budgetel.
According to the class action suit, Burkhalter now represents a
class "made up of all those residents of the Budgetel who were
unlawfully removed from their homes and deprived of their personal
property by the defendants."
The lawsuit seeks damages for each violation and court fees
repaid.
According to Flores, many of these businesses in the suit signed DA
Wamp's petition of abatement injunction.
Court documents show nearby business owners worried for their
safety and their livelihood, as the DA cites hundreds of police
calls to the property.
According to the DA's office, the East Ridge Police Department
received over 1,400 calls for service at the Budgetel Inn between
October 1, 2019, to October 8, 2022,
One reason that led to the evictions.
Former Hamilton County DA Neal Pinkston also filed a motion
requesting that the current DA Coty Wamp allow two evicted Budgetel
residents to go and get their personal belongings from the closed
down motel.
On Dec. 12, for the first time since a judge, the owner, and
affected residents toured the inside of the now-vacant Budgetel
extended stay motel in East Ridge, we got a clearer picture of what
needs to happen for the property to reopen.
We reached out to the defendants in the filed class action. The
ones who did respond stated they were not yet made aware of the
class action suit.
We later learned the City of East Ridge and the businesses who
signed the affidavits for the abatement were each added to the
lawsuit. [GN]
HARRY SILVER: Jackson Sues Over Manual Laborers' Unpaid Wages
-------------------------------------------------------------
GRANVILLE JACKSON, ROGELIO ENRIQUE OATES, JR., PETER ADOLPHUS
FACEY, LOUIS EVANS, and GREGORY MCCLAIN on behalf of themselves and
all others similarly situated, Plaintiffs v. HARRY SILVER HOUSING
COMPANY, INC., MARION SCOTT REAL ESTATE, INC., PLIGHTED
CONSTRUCTION AND DEVELOPMENT SERVICES, LLC, ALEX FREEDMAN, and
VICTOR GARVIN, Defendants, Case No. 1:22-cv-07334 (E.D.N.Y., Dec.
2, 2022) is an individual and prospective collective action lawsuit
brought under the Fair Labor Standards Act by Plaintiffs on behalf
of themselves and all similarly situated manual laborers for the
failure of the Defendants to pay Plaintiffs and prospective members
of the collective for unpaid minimum wage and overtime and for
retaliation under the FLSA.
The Plaintiffs were employed by the Defendants as manual laborers
at the HSH Site and were all terminated on February 28, 2020.
Harry Silver Housing Company, Inc. is a 288-unit affordable
cooperative at the intersection of Prospect Lefferts Gardens, Crown
Heights, and East Flatbush, Brooklyn, New York.[BN]
The Plaintiffs are represented by:
Christopher Marlborough, Esq.
THE MARLBOROUGH LAW FIRM, P.C
375 Sunrise Highway, Suite 3
Lynbrook, NY 11563
Telephone: (212) 991-8960
E-mail: chris@marlboroughlawfirm.com
HIGHMARK BCBSD: Class Settlement in Walker Suit Wins Prelim. Nod
----------------------------------------------------------------
In the case, CHRISTOPHER JAMES WALKER, KIM STERLING, and ERNIE
FISHER, on behalf of themselves and all others similarly situated,
Plaintiff v. HIGHMARK BCBSD HEALTH OPTIONS, INC., COTIVITI, INC.,
Defendants, Case No. 2:20-CV-01975-CCW (W.D. Pa.), Judge Christy
Criswell Wiegand of the U.S. District Court for the Western
District of Pennsylvania grants the Plaintiffs' Unopposed Motion
for Preliminary Approval of Class Action Settlement and
Certification of Settlement Class.
On Nov. 30, 2020, Mr. Walker filed a class action complaint in the
Court of Common Pleas of Allegheny County against Highmark,
alleging that Highmark violated the Telephone Consumer Protection
Act, 47 U.S.C. Section 227, et seq. ("TCPA"). Specifically, Mr.
Walker asserted that Highmark violated the TCPA by using automated
and pre-recorded messages to call his and putative class members'
cellphones without those individuals' consent. He brought a single
claim under the TCPA, seeking injunctive, declaratory, and monetary
relief, including treble damages and attorneys' fees.
On Dec. 21, 2020, pursuant to 28 U.S.C. Sections 1331 and 1441,
Highmark timely removed the case to the U.S. District Court for the
Western District of Pennsylvania. It then filed a motion to dismiss
for lack of jurisdiction, which Mr. Walker opposed. Subsequently,
Mr. Walker filed a motion to remand, as well as a motion to stay.
Highmark opposed both. The Court denied all three motions.
On Aug. 5, 2021, Mr. Walker filed a First Amended Complaint. With
consent from Highmark, Mr. Walker filed a Second Amended Complaint
to include Cotiviti, Inc. as another defendant (collectively
"Defendants"), alleging that Cotiviti also engaged in placing
automated and pre-recorded calls to individuals, including Mr.
Walker, without any consent.
Starting in mid-2021, the parties conducted discovery on the issue
of class certification for over a year. During this time, the Court
resolved several discovery disputes. In addition, Cotiviti filed a
motion to dismiss, which the Court denied.
On July 29, 2022, the Court was advised that the parties reached a
settlement with the assistance of a mediator. Shortly thereafter,
Mr. Walker filed a final Third Amended Complaint to include
additional named plaintiffs, including Kim Sterling and Ernie
Fisher as named plaintiffs, and on Nov. 18, 2022, Mr. Walker filed
the instant Motion, seeking preliminary approval of a class action
settlement and conditional certification of a class for settlement
purposes, which neither Highmark nor Cotiviti oppose.
First, Judge Wiegand preliminarily approves the proposed settlement
finding it fair, reasonable, and adequate pursuant to Fed. R. Civ.
P. 23(e)(2). She finds that (i) the incentive awards for the named
Plaintiffs ($10,000 for Mr. Walker and $2,500 each for Ms. Sterling
and Mr. Fisher) are fair and reasonable and do not indicate unduly
preferential treatment; (ii) the class counsel award of one-third
the proposed settlement appears to be fair and reasonable at the
preliminary approval stage; and (iii) the award for each class
member is more favorable than other TCPA settlements that have been
approved.
Turning to provisional certification of the settlement class, the
Plaintiffs seek to certify the following class pursuant to Rule
23(b)(3): During the Class Period, all persons within the United
States who are subscribers or primary users of a cellular telephone
number to which Defendant Highmark BCBSD Health Options Inc. placed
(or had placed on its behalf by Defendant Cotiviti, Inc.) a
telephone call using a pre-recorded or artificial voice, 1) when
such a call to that telephone number had previously resulted in (a)
a WRONG_NUMBER disposition or (b) a MSG_DECLINED disposition
without a subsequent disposition of CORRECT_PERSON or MSG_HUMAN and
2) when at least one subsequent call to that telephone number had
the disposition WRONG_NUMBER, MSG MACHINE, CORRECT_PERSON,
MSG_HUMAN, HANGUP, NO_CONTINUE, or MSG_DECLINED.
Judge Wiegand finds that, for the purposes of provisional
certification, the proposed class meets the criteria set forth in
Rule 23(a) and Rule 23(b)(3).
Finally, Judge Wiegand considers the parties' plan for the
dissemination of notice. She finds that the proposals meet the Rule
23(c)(3) requirements and are reasonable and appropriate under the
applicable Rule 23(e) standard. As a consequence, she grants the
parties' request and approves their proposed notice, claim form,
and notice plan generally.
For the foregoing reasons, Judge Wiegand the instant Motion and
enter an Order (1) preliminarily approving the parties' proposed
settlement; (2) conditionally certifying a class under Rule 23(a)
and (b)(3) for settlement purposes only, pursuant to Rule 23(e);
(3) appointing the Plaintiffs' attorney Jeremy M. Glapion of
Glapion Law Firm as the class counsel; (4) approving the parties'
proposed form of notice and claims program; (5) directing that
notice be provided pursuant to the settlement agreement; (6)
adopting the procedures for opting-out or objecting to the
settlement; (7) setting the deadlines for objections or exclusions
at 60 days after the notice deadlines; (8) staying all proceedings
except those related to effectuating the settlement; and (9)
setting a fairness hearing.
A full-text copy of the Court's Dec. 13, 2022 Opinion is available
at https://tinyurl.com/yyswj5sc from Leagle.com.
INSIDER INC: Faces Video Privacy Law Class Action in New York
-------------------------------------------------------------
Christina Tabacco, writing for Law Street Media, reports that
subscribers who both have Facebook accounts and subscriptions to
insider.com, a multimedia website, sued Insider Inc. for violations
of the Video Privacy Protection Act (VPPA). The suit, like others
filed against other companies that offer online video content and
use the Facebook Pixel, alleges that Insider knowingly discloses
its subscribers' personal information, including the title of every
video they view, to Meta Platforms without first obtaining their
consent.
The suit was first filed in August and later consolidated in the
Southern District of New York where it is proceeding before Judge
Analisa Torres.
According to the complaint, filed by plaintiffs from a half-dozen
states, businesses such as Insider use Meta's marketing and
advertising tools, including tracking pixels, "to monitor and
record their website visitors' devices and activities on their
website." Consequently, website visitors' browsing data and
interactions are sent to Meta, which uses the information for
marketing purposes, the filing says, noting that the tools are not
critical to website function and merely enhance Insider's marketing
efforts.
The suit says that viewers' "sensitive data," including their
Facebook ID, is information they expected to have been kept
private. In turn, it states a claim under the VPPA on behalf of a
nationwide class of insider.com subscribers, or people who viewed
content on the website, and used Facebook during the time Meta's
Pixel was active from January 2013 to the present.
The suit seeks injunctive relief and statutory damages of $2,500
per violation.
The plaintiffs and putative class are represented by Bursor &
Fisher P.A., Lowey Dannenberg P.C., Girard Sharp LLP and Milberg
Coleman Bryson Phillips Grossman PLLC.
Notably, the federal government intervened in another VPPA suit
filed against content platform Patreon after the company moved to
dismiss the case on grounds that the VPPA is unconstitutionally
overbroad. The government defended the law's viability, arguing
that it does not impermissibly restrict commercial speech. [GN]
JPMORGAN CHASE: Averts Class Action Over Retirement Plans
---------------------------------------------------------
Jacklyn Wille, writing for Bloomberg Law, reports that JPMorgan
Chase & Co.'s retirement plan administrator defeated a proposed
class action claiming it misled employees about their pension
benefits because it adequately communicated the effects of a 1998
plan conversion.
JPMorgan's plan summaries and benefit statements appropriately
explained the mechanics behind the conversion from a traditional
pension plan to a cash balance plan, including the fact that
workers' benefits under the prior formula would be "frozen" as of
2003 and serve as a minimum benefit going forward, Judge Denise
Cote said in a Dec. 9 opinion. It was appropriate to use the term
"minimum benefit," Cote said. [GN]
KIA AMERICA: Vehicles Lack Anti-Theft Features, Jeong Suit Says
---------------------------------------------------------------
PHILOS JEONG, individually and on behalf of all others similarly
situated, Plaintiff v. KIA AMERICA, INC., HYUNDAI AMERICA TECHNICAL
CENTER, INC., and HYUNDAI MOTOR AMERICA, Defendants, Case No.
5:22-cv-01290 (W.D. Tex., Dec. 2, 2022) is a class action against
the Defendants for breaches of implied warranty, violations of the
Magnuson Moss Warranty Act and the Texas Deceptive Trade Practices
Act, and common law claims for strict liability, negligence, and
unjust enrichment.
According to the complaint, for years, Defendants sold massive
numbers of defective vehicles to consumers across the United
States. These vehicles lack proper anti-theft features -- namely an
engine immobilizer -- which prevents vehicles from starting or
moving without the vehicles' actual keys. Because they lack engine
immobilizers, the defective vehicles do not comply with Federal
Motor Vehicle Safety Standards, the suit alleges.
On December 22, 2020, the Plaintiff purchased a brand new 2021 Kia
Sportage for $26,000. His car was stolen around November 25 or 26,
2022. The San Antonio police located Plaintiff's car on November
30, 2022 in an abandoned lot. The damage to his car showed that the
theft was carried out using the method that was popularized by
social media and was due to the lack of an engine immobilizer. The
Plaintiff would not have purchased the 2021 Kia Sportage if he knew
it lacked an engine mobilizer and was easy to steal, says the
suit.
Kia America, Inc. is an automobile manufacturer with its principal
place of business in Irvine, California.[BN]
The Plaintiff is represented by:
Max Rodriguez, Esq.
Adam Pollock, Esq.
POLLOCK COHEN LLP
111 Broadway, Suite 1804
New York, NY 10006
Telephone: (212) 337-5361
E-mail: Max@PollockCohen.com
Adam@PollockCohen.com
- and -
Raphael Janove, Esq.
POLLOCK COHEN LLP
1617 John F. Kennedy Blvd. 20th Floor
Philadelphia, PA 19103
Telephone: (215) 667-8607
E-mail: Rafi@PollockCohen.com
LEND-A-LOAN LLC: Kauffman Alleges Illegal Conversation Recordings
-----------------------------------------------------------------
DAVID KAUFFMAN, individually and on behalf of others similarly
situated, Plaintiff v. LEND-A-LOAN, LLC, Defendant, Case No.
3:22-cv-01911-BEN-DEB (S.D. Cal., Dec. 2, 2022) is a class action
brought by the Plaintiff, on behalf of all persons in California,
whose cellular telephone conversations were recorded by Defendant
without their consent in violation of the California Invasion of
Privacy Act.
The complaint alleges that the Defendant violated Plaintiff's
constitutionally protected privacy rights by failing to advise or
otherwise provide notice at the beginning of the conversation(s)
with Plaintiff that the call(s) would be recorded, and Defendant
did not try to obtain Plaintiff's consent before such recording.
As a result thereof, Plaintiff has been damaged. He seeks damages
and injunctive relief for recovery of economic injury under
California Penal Code.
Lend-A-Loan, LLC is a mortgage broker in Troy, Michigan.[BN]
The Plaintiff is represented by:
Joshua B. Swigart, Esq.
Spencer L. Pfeiff, Esq.
SWIGART LAW GROUP, APC
2221 Camino del Rio S, Ste 308
San Diego, CA 92108
Telephone: (866) 219-3343
E-mail: Josh@SwigartLawGroup.com
Spencer@SwigartLawGroup.com
- and -
Daniel G. Shay, Esq.
LAW OFFICE OF DANIEL G. SHAY
2221 Camino del Rio S, Ste 308
San Diego, CA 92108
Telephone: (619) 222-7429
E-mail: DanielShay@TCPAFDCPA.com
LIBERTY MUTUAL: Faces Class Action Over "Session Replay" Spyware
----------------------------------------------------------------
Andrew G. Simpson, writing for Insurance Journal, reports that
Liberty Mutual Insurance is the target of a proposed class action
alleging that the company uses spyware on its website that violates
Pennsylvania's electronic surveillance law.
The suit claims the company uses "session replay" spyware, namely
Clicktale and Datadog, to intercept electronic computer-to-computer
data communications. The plaintiffs allege that the insurer,
without their consent, captured and recorded "everything" they did
on Liberty Mutual's web pages, including "what they searched for,
what they looked at, the information they inputted, and what they
clicked on."
According to suit, unlike typical website analytics services that
provide aggregate statistics, the session replay technology
utilized by Liberty Mutual is intended to record and play back
individual browsing sessions, "as if someone is looking over a
[visitor's] shoulder" when using the website.
The technology also permits companies to view the interactions of
visitors on their website in real-time and produce a detailed
profile for each visitor to the site, according to the complaint.
Plaintiffs also say they never consented and were never alerted to
the interception of their electronic communications by the insurer
and they were never given the option to opt out of the recording.
Liberty Mutual declined to comment on the lawsuit.
The suit was filed in federal court in Pennsylvania and alleges
violations of the state's Wiretapping and Electronic Surveillance
Control Act (WESCA), which prohibits the interception and use of
any any wire, electronic, or oral communication.
The suit seeks, at a minimum, $1,000 in damages for each violation,
which, when aggregated among the estimated class of more than
5,000, exceeds $5,000,000. It also seeks an order certifying the
class and punitive damages. [GN]
MAINE OXY-ACETYLENE: $6.33M Class Deal in Glynn Suit Wins Final OK
------------------------------------------------------------------
In the case, ERNEST J. GLYNN, et al., Plaintiffs v. MAINE
OXY-ACETYLENE SUPPLY CO., et al., Defendants, Case No.
2:19-cv-00176-NT (D. Me.), Judge Nancy Torresen of the U.S.
District Court for the District of Maine grants the Plaintiffs'
motion for final approval of a settlement agreement and the
Plaintiffs' motion for attorneys' fees, expense reimbursement, and
incentive awards for Plaintiffs Ernest Glynn, Jeffrey MacDonald,
Doug Johnson, and Joshua Richardson.
The case involves a dispute surrounding an employee stock ownership
plan (the "ESOP") at Maine Oxy, which supplies welding equipment
and industrial and specialty gases at retail locations throughout
New England and at one location in Canada. The Albiston family
established the ESOP in 2004 when they were Maine Oxy's sole
shareholders to allow employees to share in the growth and profits
of Maine Oxy and to enable them to save and invest through the
ESOP. The ESOP's profit-sharing component was intended to be an
employee incentive and retirement plan.
By the end of 2006, Bruce Albiston had sold 49% of the shares in
Maine Oxy to the ESOP, while he and his son retained the other 51%.
In 2012, the Albistons sold their remaining 51% to Defendants
Daniel Guerin and Bryan Gentry for $654.62 per share. Then, in
2013, the Defendants terminated the ESOP and reacquired the ESOP's
49% for $134.92 per share, giving them ownership of 100% of Maine
Oxy's stock.
The Class Representatives are four former employees of Maine Oxy
who participated in the ESOP. They filed this class action lawsuit
in April of 2019 alleging that the Defendants violated their
fiduciary duties under the Employee Retirement Income Security Act
("ERISA"). In particular, they contend that the Defendants
misrepresented and/or artificially depressed the value of the
employees' shares so that the Defendants could purchase the
employee stock at a "steep discount." The Defendants maintain that
they did not breach their fiduciary duties because $134.92 per
share was a fair price based upon a third-party valuation of the
shares in 2012.
The Secretary of Labor for the U.S. Department of Labor ("DOL"),
Martin Walsh, brought a separate action in this Court on September
15, 2020, to void the buyback of the shares owned by the ESOP.
Judge Nivison consolidated the cases for discovery and for trial.
On Nov. 5, 2020, Judge Torresen certified a Rule 23(b)(3) class
consisting of "all Maine Oxy employees who participated in the
company ESOP and who sold their shares back to Maine Oxy after the
Albistons sold their 51% interest in the company." The parties then
engaged in a lengthy and contested discovery period. On July 7,
2022, however, the parties reported the matter settled.
The parties reached this settlement after participating in a
mediation with Robert Meyer. They submitted the Settlement
Agreement to the Court seeking preliminary approval of the
Agreement and authorization of their proposed notice to the Class.
On Sept. 14, 2022, Judge Torresen preliminarily approved the
parties' Settlement Agreement and authorized the settlement notice
to be sent to the Class.
Under the Settlement Agreement, Maine Oxy will pay a total of $6.33
million, including attorneys' fees and costs and incentive payments
to the Class Representatives, through a common fund. The $6.33
million figure represents the value that the Class' expert witness
found the stock to be worth in 2013 ($400 per share), multiplied by
the number of ESOP shares in 2013 ($400 × 24,500 shares = $9.8
million), less the $3.3 million already paid by the Defendants for
the ESOP stock in 2013 ($9.8 million - $3.3 million = $6.5
million)." The $6.5 figure was then reduced by $200,000 -- the
value of ESOP shares held by Defendants Daniel Guerin and Carl
Paine. In addition, the Class counsel seeks a total of $30,000 in
incentive awards for the Class Representatives.
The funds will be distributed to the Class members based on the
number of shares allocated to them under the ESOP as of Nov. 1,
2013, less their pro rata share of the Class Representatives'
incentive award payments and attorneys' fees and costs. The Class
Representatives each will receive an incentive award of $7,500, and
the Class counsel is asking for an award of up to $1.2 million in
attorneys' fees and costs. The Defendants' fiduciary liability
carrier will also pay Secretary Walsh an additional $630,000 in
penalties. In return, the Plaintiffs agree to release their
claims.
On Sept. 23, 2022, the Plaintiffs mailed the notice to the 156
Class members. They were able to reach 95% of the Class before the
final fairness hearing. Judge Torresen now considers whether to
grant final approval to the Settlement Agreement and the attorneys'
fees, costs, and incentive awards for the Class Representatives.
Judge Torresen held a final fairness hearing on Nov. 30, 2022. She
first takes up the Plaintiffs' motion for final approval of the
settlement and then addresses the Plaintiffs' motion for attorneys'
fees, expenses, and incentive awards for the Class
Representatives.
She finds that (i) the Class Representatives and the Class counsel
have adequately represented the Class; (ii)the settlement is the
product of fair, arm's-length negotiations, which entitles the
parties to a presumption that the settlement is reasonable; (iii)
the Settlement Agreement provides the benefit of a guaranteed and
considerable payment to the Class members; (iv) the proposed method
of distributing relief to the class is effective; (v) the proposed
award of attorneys' fees is also reasonable; (vi) the Settlement
Agreement to be fair and reasonable; and (vii) the proposed
Settlement Agreement treats the Class members equitably relative to
each other.
Judge Torrensen next considers the Plaintiffs' motion for awards of
attorneys' fees, expenses, and the Class Representatives' incentive
payments. She finds them fair and reasonable. The Class
Representatives have spent considerable time and effort in
diligently representing the Class, such as by sitting for
depositions and participating in settlement discussions.
Additionally, 95% of the Class members were notified of the
Settlement Agreement prior to the hearing, and none objected to
it.
For the reasons she stated, Judge Torrensen grants the motion for
final approval of the Settlement Agreement and the motion for
attorneys' fees, expense reimbursement, and incentive awards for
the Class Representatives. She orders the class counsel to submit a
status report within 30 days detailing their efforts to contact the
six recently located Class members or their estates to inform them
of the settlement.
A full-text copy of the Court's Dec. 13, 2022 Order is available at
https://tinyurl.com/3crzxsm5 from Leagle.com.
MDL 1264: $16K in Attys' Fees Given in BankAmerica Securities Suit
------------------------------------------------------------------
In the case, IN RE BANKAMERICA CORP. SECURITIES LITIGATION, Case
No. 4:99 MD 1264 CDP (E.D. Mo.), Judge Catherine D. Perry of the
U.S. District Court for the Eastern District of Missouri, Eastern
Division:
a. grants the Class Counsel's Application for Attorney's Fees;
b. grants the Claims Administrator's Application for Award of
Fees and Expenses; and
c. holds in abeyance the Class Counsel's Motion for Final
Distribution of NationsBank Settlement Funds.
Class Counsel Frank H. Tomlinson moves for final distribution of
the Net NationsBank Settlement Fund, requesting that its current
balance and any future deposits be distributed to a cy pres
recipient after payment of fees and costs. Separately, Tomlinson
and the Claims Administrator, Heffler, Radetich & Saitta, LLP, each
move for an award of fees and costs from the Fund. No objections to
the motions have been filed.
The litigation began as a class action under the Private Securities
Litigation Reform Act of 1995, 15 U.S.C. Section 78u-4. The
Plaintiffs alleged losses from misrepresentations in the prospectus
and proxy materials provided to shareholders during the 1998 merger
of NationsBank and BankAmerica that formed Bank of America
Corporation. The cases were transferred by the Judicial Panel on
Multidistrict Litigation to the Eastern District of Missouri.
Four plaintiff classes were certified: two classes of NationsBank
shareholders and two classes of BankAmerica shareholders. The cases
were resolved with a global settlement of $490 million, which was
approved by the district court in 2002 and affirmed by the Eighth
Circuit Court of Appeals in 2003.
Two Settlement Funds were established -- one for each of the two
sets of classes -- with the NationsBank Classes receiving $333.2
million. As part of the settlement, Bank of America disclaimed any
interest in the Settlement Funds such that any remaining money
after distribution to class members would not revert back to it.
The settlement agreement provided that all unclaimed monies in the
Settlement Funds and any other reserved funds not expended may be
donated to an organization cy pres.
The first distribution of settlement monies to authorized claimants
was made in June 2004. Another distribution was ordered in June
2008. Later in 2008, however, it was discovered that a Heffler
employee, Christian Penta, and others had defrauded the NationsBank
Settlement Fund of $5.8 million. Penta and his co-conspirators were
indicted on charges of mail fraud, wire fraud, tax evasion, and
money laundering for their conduct involving the Fund and other
class-action settlement funds not related to this litigation. Penta
later pled guilty, was sentenced to 60 months' imprisonment, and
was ordered to pay restitution to Heffler.
Heffler, acting in a fiduciary capacity, presently receives the
restitution monies and pays the relevant portion thereof into the
NationsBank Settlement Fund every six months. So far, about
$500,000 has been recovered and included in distributions to the
NationsBank Class members. Heffler will continue to receive
restitution monies into the future, albeit in unknown amounts.
After 2008, several distributions from the NationsBank Settlement
Fund were made in fits and starts to the NationsBank Class members,
with the final distribution being completed this past summer.
Disbursements for fees and costs were likewise periodically made
from the Fund to Class Counsel and the Claims Administrator. As of
Oct. 24, 2022, the balance of the Net NationsBank Settlement Fund
totaled $109,212.83, comprising $59,212.83 in the Distribution Fund
(that portion of the Net Fund eligible to be distributed to class
members), $10,000 in reserve for the Class Counsel's fees and
costs, and $40,000 in reserve for the Claims Administrator's fees
and costs.
The Class Counsel now moves for a final award of attorney's fees in
the amount of $16,125. He does not seek reimbursement for any
costs. The Claims Administrator seeks fees and costs, including
future fees and costs, totaling $46,282.99. Finally, the Class
Counsel moves that after payment of fees and costs, the remaining
balance of the Settlement Fund be distributed to a cy pres
recipient. The Class Counsel also requests that future Penta-fraud
restitution monies Heffler receives as fiduciary for the
NationsBank Classes likewise be distributed to a cy pres
recipient.
Judge Perry has reviewed the Class Counsel's and the Claims
Administrator's requests for fees and costs, as well as their
supporting documentation, and finds that the work expended was
necessary and the amount of fees and costs reasonable. She
therefore grants their requests and orders that the respective
awards be paid from the Net NationsBank Settlement Fund. She also
grants the Claims Administrator's request for future fees and costs
it expects to incur in closing the Fund and in monitoring and
managing future restitution payments.
Accordingly, Judge Perry awards the Class Counsel Frank H.
Tomlinson attorney's fees in the amount of $16,125, to be paid from
the Net NationsBank Settlement Fund. She awards Claims
Administrator Heffler, Radetich & Saitta, LLP, fees and costs in
the amount of $46,282.99, to be paid from the Net NationsBank
Settlement Fund.
After payment of fees and costs as set out, about $46,804 will
remain in the Net Settlement Fund. The Class Counsel moves that
these remaining Fund monies and all future restitution monies from
the Penta fraud be distributed to a cy pres recipient.
Upon thorough investigation and careful consideration of all
factors relevant to the litigation, Judge Perry concludes that the
Financial Crime Resource Center of the NCVC is the appropriate cy
pres recipient of the balance of the Net NationsBank Settlement
Fund that will remain after payment of fees and costs to the Class
Counsel and the Claims Administrator. She further concludes that
the ABA Securities Litigation Committee is the appropriate cy pres
recipient of the restitution monies that Heffler will continue to
collect from the Penta fraud after the NationsBank Settlement Fund
is closed; and that six months after closing the Fund, and
continuing every six months thereafter, Heffler should transfer
collected Penta-fraud restitution monies to the ABA Securities
Litigation Committee.
Because her conclusions as to appropriate cy pres recipients and
methods of distribution vary from Class Counsel's proposals, Judge
Perry gives the Class Counsel 30 days to inform the Court whether
he objects to her determination. She will construe a lack of timely
objection as a concession to her conclusions set out, which will
result in an Order of Cy Pres Distribution consistent therewith.
A full-text copy of the Court's Dec. 13, 2022 Memorandum & Order is
available at https://tinyurl.com/vyp4hk8e from Leagle.com.
MDL 3053: Bid to Centralize 17 Actions in Data Breach Suit Denied
-----------------------------------------------------------------
In the case, IN RE: NELNET SERVICING, LLC, CUSTOMER DATA SECURITY
BREACH LITIGATION, MDL No. 3053 (JPML), Judge Karen K. Caldwell of
the U.S. Judicial Panel on Multidistrict Litigation denies the
motion to centralize the litigation in the District of Nebraska
filed by the Plaintiffs in the District of Nebraska Spearman and
Bump actions.
The Plaintiffs in the District of Nebraska Spearman and Bump
actions move under 28 U.S.C. Section 1407 to centralize this
litigation in the District of Nebraska. This litigation consists of
17 actions, 16 of which are pending in the District of Nebraska and
one in the Eastern District of Tennessee.
The 17 actions are:
a. District of Nebraska:
* HERRICK v. NELNET SERVICING, LLC, C.A. No. 4:22-03181;
* CARLSON v. NELNET SERVICING, LLC, C.A. No. 4:22-03184;
* BALLARD v. NELNET SERVICING, LLC, C.A. No. 4:22-03185;
* HEGARTY v. NELNET SERVICING, LLC, C.A. No. 4:22-03186;
* BEASLEY v. NELNET SERVICING, LLC, C.A. No. 4:22-03187;
* VARLOTTA v. NELNET SERVICING, LLC, C.A. No. 4:22-03188;
* HOLLENKAMP v. NELNET SERVICING, LLC, C.A. No. 4:22-03189;
* SPEARMAN, ET AL. v. NELNET SERVICING, LLC, C.A.
No. 4:22-03191;
* MILLER v. NELNET SERVICING, LLC, C.A. No. 4:22-03193;
* SIMMONS v. NELNET SERVICING, LLC, C.A. No. 4:22-03194;
* BIRD v. NELNET SERVICING, LLC, C.A. No. 4:22-03195;
* JOAQUIN-TORRES v. NELNET SERVICING, LLC, C.A.
No. 4:22-03196;
* FREEMAN, ET AL. v. NELNET SERVICING, LLC, C.A.
No. 4:22-03197;
* SAYERS, ET AL. v. NELNET SERVICING, LLC, C.A.
No. 4:22-03203;
* BUMP, ET AL. v. NELNET SERVICING, LLC, C.A.
No. 4:22-03204;
* KITZLER v. NELNET SERVICING, LLC, ET AL., C.A.
No. 4:22-03241; and
b. Eastern District of Tennessee: KOHRELL v. NELNET
SERVICING, LLC, ET AL., C.A. No. 3:22-00314.
The Plaintiffs in three actions support or do not oppose
centralization in the District of Nebraska. The Plaintiffs in two
of these actions alternatively propose the Western District of
Oklahoma as the transferee district. All other responding parties
-- the Plaintiffs in eight actions and Defendants Nelnet Servicing,
LLC, and Edfinancial Services, LLC -- oppose centralization. The
Plaintiffs in seven of these actions and Nelnet alternatively
support the District of Nebraska as the transferee district. The
Plaintiff in one of these actions (Kohrell) and Edfinancial
alternatively propose the Eastern District of Tennessee as the
transferee district.
On the basis of the papers filed and the hearing session held,
Judge Caldwell concludes that centralization is not necessary for
the convenience of the parties and witnesses or to further the just
and efficient conduct of the litigation. She says there is no
dispute that these actions involve common questions of fact arising
from an alleged data breach of Nelnet -- one of the largest student
loan servicers in the United States -- that was discovered in July
2022 and that compromised the personal identifying information of
approximately 2.5 million current and former Nelnet account
holders.
However, the Court has emphasized that centralization under Section
1407 should be the last solution after considered review of all
other options. These options include agreeing to proceed in a
single forum via Section 1404 transfer of the cases, as well as
voluntary cooperation and coordination among the parties and the
involved courts to avoid duplicative discovery or inconsistent
rulings.
In the present matter, only one of the 22 actions in this
litigation (including the actions noticed by the parties as
related) is pending outside the District of Nebraska. Three actions
initially filed in other districts have been transferred to the
District of Nebraska through agreed transfer motions under 28
U.S.C. Section 1404. Effectively, then, there are two "actions" at
issue -- a group of consolidated class actions in the District of
Nebraska and a single class action in the Eastern District of
Tennessee. Where only a minimal number of actions are involved, the
proponent of centralization bears a heavier burden to demonstrate
that centralization is appropriate.
The Movants have not met this burden =, Judge Caldwell holds. She
says a reasonable prospect exists that Section 1404 transfer could
eliminate the multidistrict character of this litigation. And, even
if Kohrell is not transferred to the District of Nebraska through
Section 1404, she says informal coordination and cooperation among
the involved parties and courts appear quite feasible. Given these
available options, she is not persuaded that centralization is
needed.
For these reasons, the motion for centralization of these actions
is denied.
A full-text copy of the Court's Dec. 13, 2022 Order is available at
https://tinyurl.com/4578km5d from Leagle.com.
MISSISSIPPI BEHAVIORAL: Jackson Sues Over Failure to Pay Proper OT
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JAQUAY JACKSON and DANA RICE, individually and on behalf of all
other similarly situated persons, Plaintiffs v. MISSISSIPPI
BEHAVIORAL HEALTH SERVICES, LLC, Defendant, Case No.
3:22-cv-00697-CWR-LGI (S.D. Miss., Dec. 2, 2022) asserts claims
under the Fair Labor Standards Act to recover from the Defendant
unpaid overtime compensation of Plaintiffs at the rate of time and
one-half the regular rate for all hours worked over 40 in a
workweek.
Plaintiff Jackson worked for MBHS as a Mental Health Therapist from
approximately July 2019 through October 2019, and March 2020
through June 2022 while Plaintiff Rice worked for MBHS as a
Community Support Specialist from approximately June 2021 through
June 2022.
Mississippi Behavioral Health Services, LLC is a for-profit entity
that provides mental health services and community support in
Mississippi.[BN]
The Plaintiffs are represented by:
Christopher W. Espy, Esq.
ESPY LAW, PLLC
P.O. Box 13722
Jackson, MS 39236
Telephone: (601) 812-5300
Facsimile: (601) 510-9050
E-mail: chris@espylaw.com
- and -
Karen Kithan Yau, Esq.
Matt Dunn, Esq.
Elisabeth Schiffbauer, Esq.
GETMAN, SWEENEY & DUNN, PLLC
260 Fair Street
Kingston, NY 12401
Telephone: (845) 255-9370
Facsimile: (845) 255-8649
E-mail: kyau@getmansweeney.com
mdunn@getmansweeney.com
eschiffbauer@getmansweeney.com
NEW YORK: Must Limit Class Cert Opposition to 30 Pages
------------------------------------------------------
In the class action lawsuit captioned as Disability Rights New York
v. The State of New York et al., Case No. 1:17-cv-06965 (E.D.N.Y.),
the Hon. Magistrate Judge Marcia M. Henry entered an order granting
Consent Motion for leave to file excess pages:
-- The Defendants' opposition to Plaintiff's motion for class
certification shall have a limit of 30 pages.
The suit alleges violation of the American with Disabilities Act
(ADA).[CC]
NICKLIANCOS LLC: Fails to Timely Pay Movers, Nembach Suit Alleges
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CONNOR NEMBACH, TYLER LANNON, and ALEXANDER DIPRETA, on behalf of
themselves and all others similarly situated, Plaintiffs v.
NICKLIANCOS LLC d/b/a COLLEGE H.U.N.K.S. HAULING JUNK & MOVING OF
LONG ISLAND, Defendant, Case No. 2:22-cv-07507 (E.D.N.Y., December
11, 2022) is a class action against the Defendant for its failure
to pay timely wages and failure to pay overtime wages in violation
of the New York Labor Law and the Fair Labor Standards Act.
The Plaintiffs worked for the Defendant as movers at any time
between 2019 and 2022.
Nickliancos LLC, doing business as College H.U.N.K.S. Hauling Junk
& Moving of Long Island, is a trucking company based in New York.
[BN]
The Plaintiffs are represented by:
Troy L. Kessler, Esq.
Garrett Kaske, Esq.
KESSLER MATURA P.C.
534 Broadhollow Road, Suite 275
Melville, NY 11747
Telephone: (631) 499-9100
Facsimile: (631) 499-9120
E-mail: tkessler@kesslermatura.com
gkaske@kesslermatura.com
NOVA MUD: RUSCO Can't Compel Arbitration in Oldham Class Suit
-------------------------------------------------------------
In the case, JAMES OLDHAM, individually and on behalf of all others
similarly situated, Plaintiff v. NOVA MUD, INC., Defendant, Civ.
No. 2:20-cv-01166 MIS/GBW (D.N.M.), Judge Margaret Strickland of
the U.S. District Court for the District of New Mexico denies the
Motion to Compel Arbitration filed by Third Party Defendant RUSCO
Operating, LLC.
The Plaintiff filed this action on Nov. 9, 2020, on behalf of
himself and all others similarly situated, asserting claims against
Nova Mud, RUSCO, and RigUp, Inc. for failure to pay overtime in
violation of the Fair Labor Standards Act ("FLSA") and the New
Mexico Minimum Wage Act ("NMMWA"). RUSCO and RigUp run a workplace
bidding platform in the oil and gas industry, and Nova Mud is an
oil and gas operator.
RUSCO explains that their business model of providing customers
with independent contractors allows oil and gas operators to adjust
their workforce seasonally based on demand as "the industry is
characterized by its boom-bust cycles." Nova Mud is one such
customer of RUSCO. RUSCO explains that it benefits from broad
arbitration clauses in its independent contractor agreements due to
the private and relatively affordable nature of arbitration as
compared to litigation.
The Plaintiff alleges instead that RigUp and RUSCO, its wholly
owned subsidiary, perform certain human resources tasks, such as
running background checks and payroll functions for third-party
companies like Nova Mud as an "intentional ruse" to evade
accountability under FLSA by improperly classifying workers as
independent contractors.
The Plaintiff, prior to performing work for Nova Mud in both New
Mexico and Texas, executed an independent contractor agreement with
RigUp. The operative agreement provides that any interactions or
disputes between you and a Company are solely between you and that
Company. The agreement also indicates that its terms are subject to
"Section 24" of RigUp's Terms of Service, which provides for
arbitration.
On Jan. 8, 2021, the Plaintiff voluntarily dismissed his claims
against RUSCO and RigUp, leaving Nova Mud as the only remaining
Defendant. Nova Mud then filed a Motion to Dismiss and/or Compel
Arbitration, which the Court denied. In its order, it found that
non-signatory Nova Mud, as a third-party contract beneficiary,
could not equitably estop the Plaintiff from avoiding arbitration
of his claims under either Texas or New Mexico Law, as the
Plaintiff's claims do not arise from the contract that contains the
arbitration provision but instead from statute, and that the other
relevant estoppel doctrines do not apply.
Nova Mud filed its Answer and Original Third-Party Complaint on
Sept. 21, 2021, asserting claims for declaratory judgment and
breach of contract against RUSCO. The Plaintiff filed a motion to
strike or sever Nova Mud's Third-Party Complaint, which the Court
denied.
RUSCO filed the instant Motion to Compel Arbitration on Dec. 7,
2021, asking the Court to compel arbitration of the threshold
question of arbitrability of the Plaintiff's claims. In the
alternative, it argues the Court should compel arbitration of the
Plaintiff's claims as he has consented to arbitration, and also
under the theory of intertwined claims. RUSCO further contends that
the Plaintiff's class action claims should be dismissed as the same
agreement contains a class action waiver.
In the earlier motion to compel arbitration, Nova Mud -- a
non-signatory to the agreement -- argued that it could enforce the
arbitration provision against the Plaintiff as an intended
third-party beneficiary of the contract between the Plaintiff and
RigUp.The Court denied this motion.
The question now before the Court is whether a staffing agency
whose wholly-owned subsidiary is a signatory of the arbitration
agreement can enforce arbitration of the Plaintiff's claims against
its customer -- even when the Plaintiff no longer maintains claims
against the staffing agency itself.
In its Motion, RUSCO argues that the arbitrability of the
Plaintiff's claims is for an arbitrator to decide. In the
alternative, it contends that his claims are subject to arbitration
for two reasons. First, RUSCO alleges that the Plaintiff's claims
against Nova Mud "fall squarely within the parameters of the
arbitration provision" of his agreement with RigUp, and that he
thus consented to arbitration of his remaining claims. Second, itO
argues that the Plaintiff's and Nova Mud's claims in this action
are inextricably intertwined and that the Plaintiff should
therefore be estopped from avoiding arbitration.
The Plaintiff, meanwhile, argues that his agreement to arbitrate
claims against RUSCO's subsidiary did not encompass consenting to
arbitrate his remaining claims against Nova Mud. He further
maintains that his claims against Nova Mud are not "inextricably
intertwined" with its own indemnification claims against RUSCO,
because Nova Mud and RUSCO did not have the requisite "close
relationship" as required by Texas law.
Judge Strickland denies RUSCO's Motion to Compel Arbitration.
Analyzing the arbitrability of the Plaintiff's claims under Texas
state law, she opines that she cannot say that the parties have
unequivocally agreed to arbitrate the question of arbitrability of
the Plaintiff's remaining claims. The question of whether the
relevant parties agreed to arbitrate thus falls to the Court.
Next, Judge Strickland finds that it is clear that RigUp had no
issue referring to third parties where it wished. Thus, the
omission in the arbitration provision was likely purposeful. She,
therefore, finds that the Plaintiff did not consent to arbitrate
his claims against Nova Mud, and proceeds to analyze the
arbitrability of the Plaintiff's claims under the theory of
intertwined claims estoppel.
Judge Strickland finds that RUSCO and Nova Mud lack the requisite
relationship. Additionally, application of intertwined claims
estoppel would be especially disfavored under Texas law in the
instant case, where the agreement the Plaintiff executed included a
clause explicitly disclaiming any involvement with any third party
litigation. Accordingly, Judge Strickland does not apply
intertwined claims estoppel to the Plaintiff's claims. To the
extent that RUSCO's Motion asks that the Plaintiff's class action
claims against Nova Mud be dismissed, she finds the Plaintiff's
class action waiver is inapplicable to his claims against a
non-signatory.
A full-text copy of the Court's Dec. 13, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/27ftfehc from
Leagle.com.
REALPAGE INC: Artificially Raised Rental Prices, Pham Suit Claims
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JOHN PHAM, DIANA LAZARTE, MARCO CUEVAS, VALDAMITRA ANDERSON,
MICHAEL POOLE, and DANIEL FLOWERS, individually and on behalf of
all others similarly situated, Plaintiffs v. REALPAGE, INC.;
AVENUE5 RESIDENTIAL, LLC; BH MANAGEMENT SERVICES, LLC; CUSHMAN &
WAKEFIELD, INC.; EQUITY RESIDENTIAL; FPI MANAGEMENT, INC.; GREYSTAR
REAL ESTATE PARTNERS, LLC; LINCOLN PROPERTY CO.; MID-AMERICA
APARTMENT COMMUNITIES, INC.; SECURITY PROPERTIES INC.; THRIVE
COMMUNITIES MANAGEMENT, LLC.; and UDR, INC., Defendants, Case No.
2:22-cv-01744 (W.D. Wash., December 9, 2022) is a class action
against the Defendants for violations of Section 1 of the Sherman
Act, the Washington Consumer Protection Act, the Cartwright Act,
and the Florida Deceptive and Unfair Trade Practices Act.
According to the complaint, RealPage and Landlord Defendants have
engaged in a conspiracy to artificially raise the rental prices of
multifamily residential property leases in the U.S. to
supra-competitive levels. RealPage developed RealPage Software,
which sets prices of Landlord Defendants' apartments across the
country using RealPage's proprietary algorithm. By using RealPage
Software, the Landlord Defendants succeeded in colluding to
increase lease prices to the Plaintiffs and similarly situated
lessors. RealPage provides the Landlord Defendants with information
to hold vacant rental units for periods of time to ensure that
oversupply does not preclude rental price hikes. Although RealPage
claims its software will increase revenue and decrease vacancies,
it continues to urge the Landlord Defendants and other property
managers to reduce supply while increasing price. As a result of
the Landlord Defendants' anticompetitive and unlawful conduct, the
Plaintiffs and the Class paid artificially inflated prices for
rental leases beginning at least as early as 2016 and continuing
thereafter, says the suit.
RealPage, Inc. is a software company headquartered in Richardson,
Texas.
Avenue5 Residential, LLC is a multifamily rental real estate
management firm, headquartered in Seattle, Washington.
BH Management Services, LLC is a multifamily rental real estate
management firm with its headquarters in Des Moines, Iowa.
Cushman & Wakefield, Inc. is a multifamily rental real estate
management firm, headquartered in New York, New York.
Equity Residential is a real estate investment trust, headquartered
in Chicago, Illinois.
FPI Management, Inc. is a multifamily rental real estate management
firm, headquartered in Folsom, California.
Greystar Real Estate Partners, LLC is a multifamily rental real
estate management firm, headquartered in Charleston, South
Carolina.
Lincoln Property Co. is a multifamily rental real estate management
firm, headquartered in Dallas, Texas.
Mid-America Apartment Communities, Inc. is a multifamily rental
real estate management firm, headquartered in Germantown,
Tennessee.
Security Properties Inc. is a multifamily rental real estate
management firm, headquartered in Seattle, Washington.
Thrive Communities Management, LLC is a multifamily rental real
estate management firm, headquartered in Seattle, Washington.
UDR, Inc. is a multifamily rental real estate management firm,
headquartered in Highlands Ranch, Colorado. [BN]
The Plaintiffs are represented by:
Karin B. Swope, Esq.
Galen K. Cheney, Esq.
COTCHETT, PITRE & McCARTHY, LLP
999 N. Northlake Way, Suite 215
Seattle, WA 98103
Telephone: (206) 802-1272
Facsimile: (650) 697-0577
E-mail: kswope@cpmlegal.com
gcheney@cpmlegal.com
- and -
Adam J. Zapala, Esq.
Elizabeth T. Castillo, Esq.
James G. Dallal, Esq.
Gayatri Raghunandan, Esq.
COTCHETT, PITRE & McCARTHY, LLP
840 Malcolm Road
Burlingame, CA 94010
Telephone: (650) 697-6000
Facsimile: (650) 697-0577
E-mail: azapala@cpmlegal.com
ecastillo@cpmlegal.com
jdallal@cpmlegal.com
graghunandan@cpmlegal.com
- and -
Daniel E. Gustafson, Esq.
Daniel C. Hedlund, Esq.
Daniel J. Nordin, Esq.
Shashi K. Gowda, Esq.
GUSTAFSON GLUEK PLLC
Canadian Pacific Plaza
120 South Sixth Street, Suite 2600
Minneapolis, MN 55402
Telephone: (612) 333-8844
E-mail: dgustafson@gustafsongluek.com
dhedlund@gustafsongluek.com
dnordin@gustafsongluek.com
- and -
Dennis Stewart, Esq.
GUSTAFSON GLUEK PLLC
600 W. Broadway, Suite 3300
San Diego, CA 92101
Telephone: (619) 595-3299
E-mail: dstewart@gustafsongluek.com
- and -
Kenneth A. Wexler, Esq.
Justin N. Boley, Esq.
Melinda J. Morales, Esq.
Margaret Shadid, Esq.
WEXLER BOLEY & ELGERSMA LLP
311 S. Wacker Drive, Ste. 5450
Chicago, IL 60606
Telephone: (312) 346-2222
E-mail: kaw@wbe-llp.com
jnb@wbe-llp.com
mjm@wbe-llp.com
ms@wbe-llp.com
- and -
Kevin S. Landau, Esq.
Brett Cebulash, Esq.
Gwendolyn Nelson, Esq.
TAUS, CEBULASH & LANDAU, LLP
123 William Street, Suite 1900A
New York, NY 10038
Telephone: (212) 931-0704
E-mail: klandau@tcllaw.com
bcebulash@tcllaw.com
gnelson@tcllaw.com
- and -
David M. Cialkowski, Esq.
Ian F. McFarland, Esq.
ZIMMERMAN REED LLP
1100 IDS Center, 80 S. 8th St.
Minneapolis, MN 55402
Telephone: (612) 341-0400
E-mail: david.cialkowski@zimmreed.com
ian.mcfarland@zimmreed.com
RUGSUSA LLC: Valenzuela Sues Over Wiretapping of Website Visitors
-----------------------------------------------------------------
SONYA VALENZUELA, individually and on behalf of all others
similarly situated, Plaintiff v. RUGSUSA LLC, a Delaware limited
liability company, dba RUGSUSACOM, and DOES 1 through 10,
inclusive, Defendants, Case No. 30-2022-01294507-CU-MT-CXC (Cal.
Super., Orange Cty., Dec. 1, 2022) is a class action against the
Defendants for alleged violations of the California Invasion of
Privacy Act.
According to the complaint, the Defendant (1) secretly wiretaps the
private conversations of everyone who communicate through the chat
feature at www.rugsusa.com; and (2) allows at least one third party
to eavesdrop on such communications in real time and during
transmission to harvest data for financial gain. The Defendant does
not obtain visitors' consent to either the wiretapping or the
eavesdropping. As a result, Defendant has violated CIPA in numerous
ways, says the suit.
Within the last year, the Plaintiff visited Defendant's website.
She used a smart phone and had a conversation with the Defendant.
As such, Plaintiff's communications with the Defendant were
transmitted from "cellular radio telephone" as defined by CIPA, the
suit asserts.
RUGSUSA LLC provides flooring products. The Company offers wide
range of rugs, carpets, and other related products.[BN]
The Plaintiff is represented by:
Scott J. Ferrell, Esq.
Victoria C. Knowles, Esq.
PACIFIC TRIAL ATTORNEYS
A Professional Corporation
4100 Newport Place Drive, Ste. 800
Newport Beach, CA 92660
Telephone: (949) 706-6464
Facsimile: (949) 706-6469
E-mail: sferrell@pacifictrialattomeys.com
vknowles@pacifictrialattomeys.com
SILVERGATE: Bids for Lead Plaintiff Appointment Due February 6
--------------------------------------------------------------
Holzer & Holzer, LLC informs investors that it has filed a class
action lawsuit against Silvergate Capital Corporation
('Silvergate' or the 'Company') (NYSE:SI). The lawsuit alleges
Silvergate made materially false and misleading statements, and/or
failed to disclose, material adverse facts about the Company's
business, operations, and prospects, including: (1) that the
Company's platform lacked sufficient controls and procedures to
detect instances of money laundering; (2) that Silvergate's
customers had engaged in money laundering in amounts exceeding $425
million; (3) that, as a result, Silvergate was reasonably likely to
receive regulatory scrutiny and face damages, including penalties
and reputational harm.
If you bought shares of Silvergate between November 9, 2021 and
November 17, 2022, and you suffered a significant loss on that
investment, you are encouraged to discuss your legal rights by
contacting Corey Holzer, Esq. at cholzer@holzerlaw.com or Joshua
Karr, Esq. at jkarr@holzerlaw.com, by toll-free telephone at
(888) 508-6832 or you may visit the firm's website at
https://holzerlaw.com/case/silvergate/ to learn more.
The deadline to ask the court to be appointed lead plaintiff in the
case is February 6, 2023.
Holzer & Holzer, LLC, an ISS top rated securities litigation law
firm for 2021, dedicates its practice to vigorous representation of
shareholders and investors in litigation nationwide, including
shareholder class action and derivative litigation. Since its
founding in 2000, Holzer & Holzer attorneys have played critical
roles in recovering hundreds of millions of dollars for
shareholders victimized by fraud and other corporate
misconduct. More information about the firm is available through
its website, www.holzerlaw.com, and upon request from the firm.
Holzer & Holzer, LLC has paid for the dissemination of this
promotional communication, and Corey Holzer is the attorney
responsible for its content.
CONTACT:
Corey Holzer, Esq.
(888) 508-6832 (toll-free)
cholzer@holzerlaw.com [GN]
SOUTHERN GLAZER'S WINE: Order Lifting Stay in Niz Suit Affirmed
---------------------------------------------------------------
In the case, TIFFANY NIZ, Plaintiff and Respondent v. SOUTHERN
GLAZER'S WINE AND SPIRITS, LLC, Defendant and Appellant, Case No.
E076529 (Cal. App.), the Court of Appeals of California for the
Fourth District, Division Two, affirms the trial court's order
lifting the stay of litigation.
In an employment arbitration proceeding, an employee may withdraw
the claim from arbitration and proceed in court if the employer
materially breaches the arbitration agreement by failing to pay
required arbitration fees. An employer who fails to pay such fees
within 30 days of the deadline is in material breach of the
arbitration agreement, is in default of the arbitration, and waives
its right to compel arbitration. If the employee then chooses to
proceed in court instead of arbitration, then the court is required
to impose sanctions against the employer in the amount of the
employee's reasonable expenses incurred as a result of the breach.
The Defendant distributes wine and spirits in California. According
to the allegations in the operative pleading, Niz was employed by
it for about one year as an hourly employee.
Niz signed an arbitration agreement when she began working for the
Defendant. The Defendant drafted the version of the form Niz signed
in June 2018. Niz agreed to arbitrate any claims for wages or other
compensation due and waived the right to bring any claim as a class
action or a collective action. In the event the parties could not
agree upon an arbitrator, they agreed to arbitrate their disputes
through the American Arbitration Association (AAA) and to have the
proceedings governed by AAA rules except as specified in the
agreement. The parties agreed that the Defendant would pay the
arbitrator's and arbitration fees and costs, except for $100 of an
employee's filing fee.
In March 2020, Niz filed a lawsuit against the Defendant. She filed
the operative pleading several months later, alleging a putative
class action against the Defendant based on numerous wage and hour
violations and a violation of California's Unfair Competition Law
(Bus. & Prof. Code, Section 17200). Niz also brought a
representative action for the alleged wage and hour violations
under the Private Attorneys General Act of 2004 (PAGA) (Lab. Code,
Section 2698 et seq.).
In June, the parties stipulated to arbitrate all claims except the
PAGA claim, pursuant to the parties' agreement. Both parties'
counsel signed the joint stipulation. Naveen Kabir of the law firm
Constangy, Brooks, Smith & Prophete LLP signed the stipulation on
behalf of the Defendant. Steven B. Katz, from the same law firm,
was also listed as the Defendant's attorney, but he did not sign
the joint stipulation.
On July 22, the trial court ordered all of Niz's claims but the
PAGA claim to be submitted to arbitration in accordance with the
parties' arbitration agreement and stipulation. The court stayed
the action on the PAGA claim "pending completion of arbitration."
On August 11, Niz's counsel emailed Kabir to give her "a heads up"
that on the next day Niz would be initiating arbitration with AAA
by submitting the required forms.
On August 12, Niz filed an arbitration demand with AAA and paid AAA
a $100 filing fee per the parties' agreement. On the arbitration
demand form, Kabir was the only attorney listed as defense counsel
of record. Consistent with AAA rules, Niz's counsel emailed Kabir
that day to notify her of the filing and to serve her
electronically with the demand. No other attorney was copied on the
email.
On August 21, AAA emailed a letter to both parties' counsel
notifying the parties of the applicable rules of arbitration and
that per the parties' agreement the Defendant owed AAA a $2,100
filing fee. AAA stated that the filing fee was due on September 4.
Once the fee was paid, AAA would "proceed with administration." The
letter also included the following notice in boldface type:
"Payment is due on September 4, 2020. As this arbitration is
subject to California Code of Civil Procedure 1281.97 and 1281.98,
payment must be received by October 4, 2020 or the AAA will close
the parties' case." Those sentences preceded the following
boldfaced and underlined warning: "The AAA will not grant any
extensions to this payment deadline."
On September 4, AAA emailed another letter to Niz's counsel and
Kabir, informing the parties that AAA had not received the
Defendant's portion of the filing fee. It again warned in boldface:
"Please note in accordance with California Code of Civil Procedure
1281.97 and 1281.98, the AAA will close its case on October 4, 2020
if payment is not received."
On October 5, AAA emailed another letter to Niz's counsel and
Kabir, informing the parties that the matter had been
administratively closed because it had not received the Defendant's
filing fee. It advised the Defendant that it would not arbitrate
any future matters involving the Defendant and requested that it
remove AAA from its arbitration agreements. AAA advised Niz that it
would refund her her filing fee, which it did about one week
later.
On November 6, Niz filed an ex parte application for an order
lifting the litigation stay because of the Defendant's material
breach of the arbitration agreement under section 1281.97,
subdivision (a), and imposing sanctions against defendant under
section 1281.98 and section 1281.99. She served both Kabir and Katz
with the ex parte application. The same day, the Defendant filed
opposition. The trial court denied the ex parte request without
prejudice to filing a noticed motion seeking the same relief.
Three days after Niz filed her ex parte application, the Defendant
paid AAA the filing fee, which AAA deposited. AAA agreed to reopen
the arbitration if Niz consented. Niz declined.
Niz moved for the same relief she sought in the ex parte
application. The Defendant opposed the motion and attached to its
opposition declarations from several Constangy attorneys, including
Katz and Kabir. It argued that under section 473(b) the trial court
had broad discretion to grant it relief from the statutory waiver
imposed by section 1281.97, because its failure to file the fees is
the result of a mistake or 'excusable neglect' by its attorney. The
Defendant contended that the excusable neglect was the result of a
medical condition from which Kabir suffered when arbitration was
initiated and while AAA was corresponding with her about the
matter.
The trial court found that under section 1281.97 that the Defendant
materially breached the arbitration agreement by failing to pay the
arbitration fees, and it thus defaulted in arbitration. The court
consequently granted Niz's motion to lift the litigation stay. It
denied the Defendant's request for relief under section 473(b),
concluding that the Defendant failed to demonstrate excusable
neglect necessary for discretionary relief under Section 473(b).
The court granted Niz's request for sanctions under section 1281.99
against the Defendant and awarded her $6,193 in sanctions.
The Defendant appeals from that order.
Niz argues that the trial court's order lifting the stay of
litigation is not appealable. She further argues that the court's
findings of breach and default of the arbitration under section
1281.97 and the denial of defendant's request for relief under
section 473(b) are not appealable.
The Court of Appeals agrees with Niz about the stay of litigation
but not about the other rulings. Although the findings of breach
and default and the denial of relief under section 473(b) are not
themselves appealable, they are reviewable on the Defendant's
appeal from the sanctions order.
The Defendant asks the Court of Appeals to consider a supplemental
declaration from Kabir filed under seal in which she describes in
great detail her medical condition and how it impacted her work
during the relevant period. It contends that it only learned of the
information during the pendency of the appeal because Kabir was
embarrassed about revealing information concerning her diagnosis.
The Court of Appeals opines that the Defendant's failure to present
evidence to the trial court because of its attorney's mistaken
belief about what information would be sufficient to support the
request for relief under section 473(b) does not amount to
"exceptional circumstances" warranting taking new evidence on
appeal. It consequently denies the Defendant's motion to take new
evidence and accordingly does not consider its arguments based on
the newly proffered evidence.
The Defendant then argues that the trial court abused its
discretion by failing to grant relief under section 473(b).
The Court of Appeals is not persuaded. It concludes that the trial
court did not abuse its discretion by denying the Defendant relief
under section 473(b). As an initial matter, it notes that the
deficiencies in the evidence presented to the trial court in
support of the section 473(b) motion are not attributable to Kabir
or her health issues. Moreover, the record contains substantial
evidence supporting the trial court's determination that Kabir's
failures that allegedly resulted from her "serious health issues,"
increased workload, and transfer off the case amounted to a failure
to discharge routine professional duties, not excusable neglect.
For all these reasons, the Court of Appeals declines to grant the
Defendant relief under subdivision (b) of section 473 (section
473(b)) and imposes sanctions against it in an amount exceeding
$5,000. It dismisses the appeal from the Jan. 14, 2021, order
lifting the litigation stay. The Court of Appeals affirms
otherwise. Niz will recover her costs of appeal.
A full-text copy of the Court's Dec. 13, 2022 Opinion is available
at https://tinyurl.com/3da8hwfc from Leagle.com.
Constangy, Brooks, Smith & Prophete, Steven B. Katz --
skatz@constangy.com; Niddrie Addams Fuller Singh and Rupa G. Singh,
for the Defendant and Appellant.
Law Office of Jocelyn Sperling, Jocelyn S. Sperling; Dychter Law
Offices, Alexander I. Dychter -- Contact@DychterLaw.com -- S. Adam
Spiewak; United Employees Law Group and Walter L. Haines --
info@uelglaw.com -- for the Plaintiff and Respondent.
SPRINGPOINT SENIOR: Class Action Over Refundable Deposits Okayed
----------------------------------------------------------------
Charles Toutant, writing for New Jersey Journal, reports that a
Superior Court judge in Middlesex County, New Jersey, has given a
green light to a class action suit claiming an operator of
retirement communities deceived residents about its refund policy.
Judge Ana Viscomi denied a motion for partial summary judgment by
Springpoint Senior Living, an operator of continuing care
retirement communities, in a suit on behalf of current and former
residents at five of the company's properties.
In denying the Princeton, New Jersey-based operator's bid to
dismiss portions of the suit, Viscomi said the New Jersey Consumer
Fraud Act provides for refunds of entry fees paid by class members
who died or moved out of the company's communities. She rejected
Springpoint's assertion that only the state Department of Health
has the right to file a suit to obtain a refund of nursing home
entry fees.
Springpoint's lawyers asserted that the right to a refund under the
CFA only applies to a portion of the statute called the Truth in
Menu Act, which concerns alleged misrepresentations of the identity
of food products to patrons of any restaurant, hotel or lunch
counter. That part of the statute only applies to disputes about
food, the defendants claimed.
However, to support their argument, the defendants cited several
unpublished cases that are "of no moment to this court."
Meanwhile, the plaintiffs took the position that individuals have
the right to bring suits for nonpayment of a refund of entry fees
for continuing care retirement communities, Viscomi said.
And the plaintiffs cited published cases, including Lemelledo v.
Beneficial Corp. of America, a 1997 New Jersey Supreme Court case,
which said "language of the Consumer Fraud Act evinces a clear
legislative intent that its provisions be applied broadly in order
to accomplish its remedial purpose, namely to root out consumer
fraud," Viscomi said.
The judge also referenced another case cited by the plaintiffs,
Weinberg v. Sprint, a 2002 case from the state Supreme Court that
says the CFA "focuses on allowing individual consumers to recover
refunds for losses caused by violations of the act."
Years of Litigation
The suit was filed in 2013 on behalf of five retirement communities
in New Jersey -- Springpoint at Monroe Village, Springpoint at
Montgomery, Springpoint at Crestwood, Springpoint at Meadow Lakes
and Springpoint at the Atrium.
The plaintiffs claim Springpoint's advertising and statements by
its representatives, which promised that entrance fees would be 90%
refundable for residents who chose the refundable deposit plan,
were materially misleading because they omitted reference to
language in the agreements providing that refunds would be based on
the lesser of the resident's entrance fee or the fee paid by a
subsequent resident who took over the initial resident's
apartment.
Lead plaintiff William DeSimone claimed his mother paid a $159,000
entrance fee when she moved into a Springpoint facility in 2009,
but after his mother died in 2010, the refund was roughly $80,000,
or 50% of the entrance fee. He claimed in court papers that the
community marketed itself in a confusing and aggressive manner, and
that its 90% refunds were diminished when the company responded to
market conditions by offering discounts to subsequent residents.
Viscomi granted class certification on March 18.
The case was dismissed in 2014 for failure to state a claim on
which relief can be granted, but the Appellate Division reinstated
the case.
The motion judge dismissed the case on finding that the plaintiff
failed to plead that his family had actually seen the allegedly
misleading advertising. The appeals court, in reversing the lower
court ruling, said that if Springpoint's staff or its brochures
misrepresented the terms of the contract by failing to disclose
that the entrance fee was subject to market trends, the plaintiff
might be able to prove its causes of action, including the CFA.
Christopher Placitella of Cohen, Placitella & Roth in Red Bank,
representing the plaintiffs and the class, said in an email about
Viscomi's decision: "Plaintiff appreciates the court's ruling
clarifying that refunds are available under the New Jersey Consumer
Fraud Act. As the ruling greatly simplifies the calculation of
damages due to the class here, we look forward to completing
discovery and trial in the near future."
Morgan Lewis represents Springpoint along with Clark Michie of
Princeton. That firm's Christopher Michie said in an email, "We
respectfully disagree with the ruling. As the Appellate Division
and other trial courts have found in several unpublished opinions,
the statutory language and the legislative history show that this
provision was passed as part of the Truth in Menu Act in 1980 and
was intended to apply only to misrepresentations involving food
products. The trial court acknowledged those authorities, but
considered itself bound by some unfortunate dicta in Supreme Court
decisions addressing other issues. We hope that the Appellate
Division will take the opportunity to clarify the law." [GN]
SUPERVALU INC: Faces Class Action Over Equaline Lidocaine Patches
-----------------------------------------------------------------
Jessy Edwards, writing for Top Class Actions, reports that
Supervalu's Equaline lidocaine patches promise pain relief for up
to eight hours but can fall off within minutes, a new class action
lawsuit alleges.
Plaintiff Jesse Sheiner filed the class action lawsuit against
Supervalu Inc. on Dec. 3 in a New York federal court, alleging
violations of state and federal consumer laws.
According to the lawsuit, Supervalu makes and sells "Maximum
Strength" adhesive patches promising to deliver 4% lidocaine for
"up to eight hours of relief" under the Equaline brand.
However, the product fails to deliver lidocaine in the way it
promises, the lidocaine class action alleges.
Lidocaine class action alleges patch cannot stick for eight hours
Consumers expect that when they are told the product will provide
"Up to 8 Hours" of relief, the patches will adhere to their bodies
for no less than eight hours, Sheiner states.
"However, the product cannot adhere for eight hours, which renders
the directions misleading, because it assumes it will not have
detached by then," he says.
"Studies have shown the product is unable to adhere to the skin for
more than four hours, often peeling off within minutes of light
activity, which renders the ‘Up to 8 Hours of Relief' misleading,
because this is a significant disparity between what is promised
and what is delivered."
The product also does not deliver the "maximum strength" of
lidocaine because it cannot adhere for long, the lidocaine lawsuit
alleges.
Sheiner looks to represent a New York class of consumers who bought
the product, plus a consumer fraud multistate class from West
Virginia, Montana, Wyoming, Idaho, Alaska, Kansas, Nebraska, North
Dakota, Iowa, Mississippi, Arkansas, and Utah.
He sued under New York consumer laws and for breach of warranty,
negligent misrepresentation, fraud and unjust enrichment and seeks
certification of the class action lawsuit, damages, fees, costs and
a jury trial.
Meanwhile, Stop & Shop has been hit with a class action lawsuit
alleging its CareOne lidocaine patches promise pain relief for up
to eight hours but can fall off within minutes. [GN]
TALIS BIOMEDICAL: Averts Class Action Over COVID-19 Test Platform
-----------------------------------------------------------------
Peter Hayes, writing for Bloomberg Law, reports that Talis
Biomedical Corp. won dismissal of class action claims that it
misled investors about its ability to bring a molecular diagnostic
platform for Covid tests to market.
Co-lead plaintiffs Martin Dugan, Leon Yu, and Max Wisdom Technology
Ltd. can't proceed with claims on behalf of a proposed class of
shareholders because they failed to show that Talis' officers or
board members made false or misleading statements, Judge Judge
Susan Yvonne Illston of the US District Court for the Northern
District of California ruled Dec. 9.
The plaintiffs failed to establish claims under Section 11 of the
1933 Securities Act. [GN]
TANGO SUR: Faces Ramirez Suit Over Unpaid Wages of Restaurant Staff
-------------------------------------------------------------------
ODILIO CLEMENTE RAMIREZ PAZ, individually and on behalf of all
others similarly situated, Plaintiff v. TANGO SUR, INC. and SERGIO
DI SAPIO, Defendants, Case No. 1:22-cv-06935 (N.D. Ill., December
9, 2022) is a class action against the Defendants for failure to
pay the Plaintiff and other similarly situated employees statutory
minimum wages and overtime compensation for all hours worked in
excess of 40 hours in a workweek in violation of the Fair Labor
Standards Act, the Illinois Minimum Wage Law, and the Chicago
Minimum Wage and Paid Sick Leave Ordinance.
The Plaintiff worked as a food and salad preparer, dishwasher and
cleaner at the Defendants' Tango Sur restaurant from May 2019
through November 3, 2022.
Tango Sur, Inc. is a restaurant owner and operator located in
Chicago, Illinois. [BN]
The Plaintiff is represented by:
Timothy M. Nolan, Esq.
NOLAN LAW OFFICE
53 W. Jackson Blvd., Ste. 1137
Chicago, IL 60604
Telephone: (312) 322-1100
E-mail: tnolan@nolanwagelaw.com
TOYOTA MOTOR: Bettles Suit Over Faulty HVAC Tossed With Prejudice
-----------------------------------------------------------------
In the case, JAMES BETTLES, Plaintiff v. TOYOTA MOTOR CORPORATION
et al., Defendants, Case No. 2:21-cv-07560-ODW (AFMx) (C.D. Cal.),
Judge Otis D. Wright, II, of the U.S. District Court for the
Central District of California grants Toyota's Motion to Dismiss
Bettles's First Amended Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6).
Bettles brings the putative class action against Defendants Toyota
Motor Corp. ("TMC") and Toyota Motor Sales, U.S.A., Inc. ("TMS")
arising from an alleged defect in the heating, ventilation, and air
conditioning ("HVAC") systems of certain vehicle models. TMS
manufactures, distributes, and sells vehicles throughout the United
States. TMC is the parent company of TMS (collectively, "Toyota").
On Dec. 3, 2016, Bettles purchased a new Toyota Prius from a
non-party authorized dealer. In the Spring of 2017, Bettles noticed
a foul odor emanating from the air-conditioning vents of the
Vehicle. At first, he thought the odor originated from his socks or
shoes. As a result, Bettles purchased new shoes and washed his
socks. However, as Summer 2017 approached, the foul odor persisted
and became worse.
Approximately six months after Bettles purchased the Vehicle, he
brought the Vehicle to the Dealership for service and "advised the
service representative of the foul odor that had been emanating
from the A/C vents, as well as his attempts to figure out its
cause." After the service, he was told that the Vehicle exhibited
no abnormalities and there was nothing wrong with the its HVAC
System. In the following months, the odor emanating from the
Vehicle's A/C vents became increasingly more-foul. Further, Bettles
noticed that the smell would intensify when he switched from A/C
mode to regular fan mode" and was immediately noticeable upon a
cold start.
On Dec. 1, 2017, Bettles again brought the Vehicle to the
Dealership due to "continued and worsening odors" emanating from
the Vehicle's HVAC system. During this visit, he informed the
Dealership of his belief that a defect was causing the foul odor to
emanate from the Vehicle's HVAC System. A supervisor at the
Dealership subsequently stated there have been thousands of similar
complaints about smells from these kinds of cars.
Bettles alleges that he had no way to know of the existence of the
defect in his Vehicle until the moment that the Dealership's
supervisor explicitly admitted the defect. He alleges that,
although Toyota knew of the defect in the HVAC system, Toyota
fraudulently, intentionally, negligently and/or recklessly omitted
and concealed from him information about the defective HVAC
system.
On Sept. 22, 2021, Bettles filed the Complaint. After Toyota moved
to dismiss the Complaint and Bettles voluntarily dismissed two of
his claims, the Court found that Bettles' remaining claims were
time-barred. However, it provided Bettles with leave to amend to
allege facts supporting the application of the discovery rule.
Bettles then filed the First Amended Complaint, asserting four
causes of action on behalf of himself and members of a putative
class: (1) violations of California's Unfair Competition Law; (2)
breach of express warranty; (3) violation of the Song-Beverly
Consumer Warranty Act for breach of express warranties; and (4)
violations of the Song-Beverly Warranty Act for breach of implied
warranties. With his amended allegations, Bettles seeks to toll the
statute of limitations by invoking the discovery rule and the
fraudulent concealment doctrine.
Toyota again moves to dismiss Bettles' claims on the basis that
they are time-barred and Bettles fails to allege an applicable
tolling doctrine.
The parties agree that each of Bettles' claims is subject to a
four-year statute of limitations. In California, a cause of action
generally accrues at the time when the cause of action is complete
with all of its elements. Thus, because Bettles took possession of
the allegedly defective Vehicle on Dec. 3, 2016, the statute of
limitations expired on his claims in December 2020 unless a tolling
doctrine applies.
Bettles argues that the delayed discovery rule and fraudulent
concealment doctrine tolled the statute of limitations. Because his
claims are subject to a four-year statute of limitations and he
filed the Complaint on Sept. 22, 2021, he must show that the
statute of limitations was tolled until at least September 2017.
First, Judge Wright finds that Bettles' allegations establish that
he had, or should have had, inquiry notice of the cause of action
prior to September 2017. Moreover, he fails to allege that he
diligently investigated the defect. Because Bettles fails to allege
facts that support that he conducted a diligent investigation, he
cannot invoke the discovery rule. Accordingly, he does not allege
sufficient facts to invoke the discovery rule to toll the statute
of limitations.
Next, in addition to the discovery rule, Bettles seeks to toll the
statute of limitations with the fraudulent concealment doctrine.
However, Judge Wright finds that Bettles fails to set forth
sufficient factual allegations to support the application of the
fraudulent concealment doctrine. Regardless of whether Bettles must
plead affirmative deceptive conduct on the part of Toyota, he says
Bettles fails to plead facts supporting the second and third
requirements of the fraudulent concealment doctrine.
Bettles' factual allegations indicate that he had or should have
had knowledge of the facts giving rise to his claim more than four
years before he brought the action. Moreover, he fails to plead
that he was diligent in trying to uncover those facts. Accordingly,
Judge Wright finds that Bettles fails to plead a basis for the
application of the fraudulent concealment doctrine to toll the
statute of limitations.
Further, Judge Wright concludes that leave to amend is not
warranted. He points out that the Court already provided Bettles an
opportunity to amend his pleadings to "claim the benefit of the
discovery rule." The Court explained that Bettles must plead
specific facts to show "the time and manner of his discovery of the
facts supporting his claims" and an "inability to have made an
earlier discovery." However, Bettles fails to do so in the First
Amended Complaint.
In addition, Bettles does not plead sufficient facts to toll the
statute of limitations pursuant to the fraudulent concealment
doctrine. Given his previous opportunity to cure the deficiencies
in his claims to overcome the statute of limitations, Bettles'
failure to plead sufficient facts in the First Amended Complaint
indicates that further amendment would be futile.
For the foregoing reasons, Judge Wright grants Toyota's Motion to
Dismiss Bettles' First Amended Complaint without leave to amend and
with prejudice.
A full-text copy of the Court's Dec. 13, 2022 Order is available at
https://tinyurl.com/4tsvp4e2 from Leagle.com.
TRADER JOE'S: Judge Tosses Class Action Over "Cold-Pressed" Labels
------------------------------------------------------------------
Keller and Heckman LLP disclosed that FDA developed Hazard Analysis
Critical Control Point (HACCP) regulations that require treatment
of covered juice products due to bacteria that may be present in
fresh-squeezed fruits and vegetables. As we have discussed, FDA's
regulations allow only very limited exemptions from a requirement
for a 5-log reduction of the pertinent microorganism that is
achieved by pasteurization or other processing. For example,
grocery stores and other retail outlets may sell unpasteurized
packaged juice that is made onsite. Such products must be
refrigerated and must carry a warning about harmful bacteria. FDA
has posted What You Need to Know About Juice Safety to educate
consumers about packaged juice that has not been treated to ensure
its safety.
On December 9, 2022, an Illinois federal judge permanently
dismissed a proposed class action lawsuit alleging that the grocery
store chain, Trader Joe's, deceived its customers about the
freshness of its green juice by claiming "cold-pressed" on the
front label and placing the juice in the refrigerated section of
the produce department despite the juice having been high-pressure
processed. The judge found that the "cold-pressed" claim is
factually accurate, as the juice is in fact cold-pressed before a
high-pressure processing step, and that the plaintiff offered only
conclusory allegations that other consumers would agree that the
"cold-pressed" labeling implies the juice is free of processing or
preservation, especially when the product's side label expressly
states that the juice is processed.
In deciding on the motion to dismiss by Trader Joe's, the court
took judicial notice of FDA's "What You Need to Know…" website
and postulated whether reasonable consumers would be aware that
most juice is routinely processed to avoid food borne illness.
Regardless of consumer awareness, the court concluded that the
plaintiff's interpretation of the "cold-pressed" claim is contrary
to FDA's guidance on juice manufacturing. [GN]
TRULIEVE INC: Faces WARN Class Action Suit Over Mass Layoffs
------------------------------------------------------------
Vuk Zdinjak, writing for Benzinga, reports that a class action
lawsuit was filed in federal court on Dec. 7 against cannabis
company Trulieve Inc. (OTCQX: TCNNF), first reported WTXL.
The lawsuit alleges Trulieve is liable under the Workers Adjustment
and Retraining Notification Act (WARN) of 1988, for failing to
provide the plaintiff and all other similarly situated former
employees at least 60 days advance notice of their terminations,
under certain requirements.
According to WCTV, the suit claims a number of workers were fired
"without cause on or about November 29."
The WARN Act applies in cases where employment loss occurs "at the
single site of employment during any 30-day period for 50 or more
employees excluding any part-time employees," per the lawsuit.
The suit states that advance notification was not provided to local
government entities where Trulieve facilities are located. The
legal document also claims former workers did not receive their
respective wages, salary, commissions, bonuses, accrued holiday
pay, vacation and other benefits, which would have accrued for 60
days following their respective terminations without notice. In
addition, Trulieve is also accused of failing to provide
ex-employees with health insurance coverage and other benefits.
The lawsuit demands payment equal to the sum of unpaid wages,
salary, holiday pay, commissions, bonuses, and ERISA benefits for
60 working days following the employee's termination that would
have been covered and paid under the then-employee benefit plan if
coverage continued. ERISA protects the interests of employee
benefit plan participants and their beneficiaries.
Counsel for Trulieve provided the following response to WCTV:
"Trulieve has complied with all State and Federal laws with regard
to reductions in force. Where possible, Trulieve offered impacted
employees new positions at the same site or at other sites in the
area. Where transfers were not feasible or accepted, employees were
offered severance packages."
Not A Good Year For Trulieve
This latest lawsuit comes on the heels of another undesirable event
involving Trulieve. This year, the Florida-headquartered
multi-state operator was at the center of media attention following
the death of one of its employees.
A report filed at the time by Occupational Safety and Health
Administration (OSHA) stated that at around 11 p.m. on Jan. 7,
2022, Lorna L. McMurrey, 27, complained that she could not breathe
presumably due to cannabis kief (cannabis dust) in the facility
where she was grinding and packaging cannabis into prerolls.
McMurrey was taken to a local hospital where she died shortly
thereafter.
Both McMurrey's family and co-workers spoke to the press about the
case, after which Trulieve finally came out with an official
statement confronting some of the reported details.
It seems that the investigation into what happened to Lorna
McMurrey and whether or not Trulieve bears any responsibility for
her death is still ongoing. [GN]
TWIST BIOSCIENCE: Rosen Law Firm Investigates Securities Claims
---------------------------------------------------------------
WHY: New York, N.Y., December 12, 2022. Rosen Law Firm, a global
investor rights law firm, announces an investigation of potential
securities claims on behalf of shareholders of Twist Bioscience
Corporation (NASDAQ: TWST) resulting from allegations that Twist
may have issued materially misleading business information to the
investing public.
SO WHAT: If you purchased Twist securities you may be entitled to
compensation without payment of any out of pocket fees or costs
through a contingency fee arrangement. The Rosen Law Firm is
preparing a class action seeking recovery of investor losses.
WHAT TO DO NEXT: To join the prospective class action, go to
https://rosenlegal.com/submit-form/?case_id=10241 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
WHAT IS THIS ABOUT: On November 15, 2022, market analyst Scorpion
Capital published a report on Twist. The report alleged, among
other things, that Twist is "[t]he latest miniaturized
'lab-on-a-chip' scam, just like Theranos, Berkeley Lights, and
other failures" and "[a] ticking time bomb that we believe is
resorting to a Worldcom-esque accounting fraud[.]" The report also
alleged that "Twist's reported gross margins of 45% are simply
implausible," and alleged that "[m]ultiple competitors internally
refer to Twist's price dumping and customer subsidy scheme as a
'Ponzi'".
On this news, Twist's stock price fell $7.57 per share, or 19%, to
close at $30.43 per share on November 15, 2022, on unusually heavy
trading volume. The next day, Twist's stock price fell a further
$2.14 per share, or 7%, to close at $28.29 per share. The day
after, Twist's shares fell a further $2.89 per share, or 10%, to
close at $25.40 per share.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources, or
any meaningful peer recognition. Many of these firms do not
actually litigate securities class actions. Be wise in selecting
counsel. The Rosen Law Firm represents investors throughout the
globe, concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
UNITED STATES: Faces Class Action Suit Over FACTA Violations
------------------------------------------------------------
Andy Nghiem, writing for Madison-St. Clair Record, reports that an
Illinois woman filed a class action lawsuit against the Army and
Air Force Exchange Service, claiming the company violates the law
by printing customers' credit card information on purchase
receipts.
Plaintiff Linda Thompson filed a class action lawsuit in the
Madison County Circuit Court against the Army and Air Force
Exchange Service (AAFES), citing violations of the Fair and
Accurate Credit Transactions Act (FACTA).
According to the lawsuit, the Fair and Accurate Credit Transactions
Act (FACTA) requires merchants to refrain from disclosing certain
credit and debit card information on printed receipts provided to
customers.
The lawsuit alleges the defendant violates FACTA by printing the
expiration date of customers' credit and debit cards on purchase
receipts provided to them at AAFES stores, unnecessarily exposing
the plaintiff and class members to an increased risk of identity
theft and invasion of privacy,
Thompson is seeking damages for herself and everyone in the
proposed class of not less than $100 and not more than $1,000 per
violation, plus court costs, attorney fees and any other relief the
court deems proper. She is represented in this case by attorneys
Roy C. Dripps of Armbruster, Dripps, Blotevogel, LLC, in Maryville,
the attorneys of Keogh Law, LTD in Chicago, and Scott D. Owens, of
Scott D. Owens, P.A. in Hollywood.
Madison County Circuit Court case number 2022LA001292 [GN]
UNITED STATES: Summary Judgment Bid in Ingham Suit Granted in Part
------------------------------------------------------------------
In the case, INGHAM REG. MED. CENTER, n/k/a McLAREN GREATER
LANSING, et al., Plaintiffs v. THE UNITED STATES, Defendant, Case
No. 13-821 (Fed. Cl.), Judge Ryan T. Holte of the U.S. Court of
Federal Claims:
(1) grants in part and denies in part the government's motion
for summary judgment as to the Plaintiffs' breach of
contract claim;
(2) grants the government's motion for summary judgment as to
the Plaintiffs' mutual mistake of fact claim; and
(3) defers ruling on the Plaintiffs' motion for class
certification.
The Plaintiffs are six hospitals purporting to represent a class of
approximately 1,610 hospitals across the United States in a suit
requesting amongst other things the Court interpret what the
Federal Circuit has deemed an "extremely strange" contract. This
contract arose when hospitals complained the government underpaid
reimbursements for Department of Defense Military Health System,
TRICARE, outpatient services rendered between 2003 and 2009.
TRICARE is a military health care system which provides medical and
dental care for current and former members of the military and
their dependents. TRICARE Management Activity ("TMA"), a field
office in the Defense Department ['DoD'], managed the TRICARE
system. Hospitals providing TRICARE services are reimbursed
according to DoD guidelines.
In 2001, the Congress amended the TRICARE statute to require DoD to
follow Medicare rules when reimbursing outside healthcare
providers. To facilitate transition to Medicare rules, in 2005, DoD
issued a Final Rule which provided a more detailed explanation of
the payment rules for hospital-based outpatient services.
On Jan. 23, 2007, two hospitals filed their first amended complaint
in the U.S. District Court for the District of Delaware asserting
claims for breach of contract implied in fact and breach of
quasi-contract/unjust enrichment against TRICARE's
intermediary-managed care support contractors. The Hospitals
alleged the intermediaries refused to pay their facility charges
for certain outpatient services rendered by the Hospitals to
TRICARE beneficiaries, despite the fact that the Hospitals
submitted claims to the intermediaries which included such charges.
The district court dismissed the complaint because the hospitals
failed to first exhaust their administrative remedies, and the
Third Circuit affirmed.
In response to hospital complaints, TRICARE hired Kennell and
Associates, a consulting firm, to undertake a study of the accuracy
of its payments to the hospitals. From the Kennell study findings,
DoD created a discretionary payment process ('DPP') and, on April
25, 2011, DoD notified hospitals by letter of the process for them
to request a review of their TRICARE reimbursements. The Notice
described a nine-step methodology by which hospitals could request
an analysis of their claims data for possible discretionary
adjustment and to govern the review of payments for hospital
outpatient radiology services and payment of any discretionary net
adjustments.
The Plaintiffs estimate several thousand hospitals submitted
requests for discretionary payment, including the six named
Plaintiffs in this case: McLaren Greater Lansing (Ingham Regional
Medical Center), INTEGRIS Baptist Regional Health Center (Miami),
INTEGRIS Bass Baptist Health Center, INTEGRIS Grove Hospital,
INTEGRIS Baptist Medical Center (Integris Baptist), and INTEGRIS
Canadian Valley Hospital.
After running a data analysis, in 2011, the government voluntarily
entered a discretionary payment process contract with the
Plaintiffs, offering net adjusted payments to reflect the Medicare
blended rate for outpatient radiology claims.
On Oct. 21, 2013, the Plaintiffs brought this action claiming the
government underpaid them for certain outpatient medical services
they provided between Aug. 1, 2003 and May 1, 2009. They allege the
approximately six years of underpayment breached two contracts and
violated various statutory and regulatory provisions. The
Plaintiffs seek to represent a class of approximately 1,610
similarly situated hospitals.
On Jan. 13, 2015, the government filed a motion to dismiss the
Plaintiffs' complaint for failure to state a claim pursuant to Rule
12(b)(6) of the Rules of the United States Court of Federal Claims
("RCFC"). It argued the Plaintiffs failed to allege facts
sufficient to establish a binding contract with the government or
that any contract was breached, and absent a valid contract, there
could be no mutual mistake or breach of the covenant of good faith
and fair dealing.
On March 22, 2016, this Court dismissed the Plaintiffs' complaint
for failure to state a claim. The Plaintiffs appealed three claims:
the (1) breach of express contract between Ingham and DoD based on
the DPP; (2) revision of Ingham's contract based on mutual mistake,
in light of the errors in the calculations of radiology outpatient
services and the Kennell study; and (3) violations of
money-mandating statutes and regulations.
On Nov. 3, 2017, the Federal Circuit reversed the dismissal of the
Plaintiff Ingham's breach of contract claim, affirmed the dismissal
of the Plaintiffs' money-mandating claim, and did not reach the
claim for mutual mistake. It remanded the case for further
proceedings on the breach of contract claim. On remand, the
Plaintiffs filed an amended complaint, the government filed its
answer, and the parties engaged in discovery. The case was
transferred to the undersigned Judge Holte on July 29, 2019.
On Jan. 14, 2020, the Court issued an order ruling on five motions
regarding the government's effort to "claw back" purportedly
privileged documents it inadvertently sent the Plaintiffs. It held
these communications were not privileged by analogizing the DPP to
an insurer's claim investigation as DoD investigated hospitals'
underpayment claims further before making a payment determination.
It held the documents in question could not constitute preparation
for litigation, and the DPP Contract was a negotiated business
settlement to agree on a recalculation figure.
On June 5, 2020, the Plaintiffs filed a renewed motion to certify
class and appoint class counsel. The government filed a response to
the Plaintiffs' renewed motion for class certification on Aug. 26,
2021, and on Feb. 4, 2022, the Plaintiffs filed a reply in support
of their renewed motion to certify class action and appoint
counsel.
On Aug. 26, 2021, the government filed a motion for summary
judgment. The Plaintiffs filed an opposition to government's motion
for summary judgment on Feb. 4, 2022, and on March 11, 2022, the
government filed a reply in support of its motion for summary
judgment.
The parties then filed seven evidentiary motions and one motion for
leave to file amended briefs. On Aug. 26, 2021, the government
filed a motion to exclude inadmissible evidence relied upon in the
Plaintiffs' motion for class certification under Rule 408 of the
Federal Rules of Evidence ("FRE"). The same day, it filed a motion
to exclude the expert opinion of Jane Jerzak, and a motion to
exclude the expert opinion of Anthony Fay.
On March 11, 2022, the government filed a motion to strike
inadmissible evidence under FRE 408 relied upon in the Plaintiffs'
response to the government's motion for summary judgment and the
Plaintiffs' response to the government's motion to exclude the
expert opinion of Jane Jerzak. The next day, the government moved
to strike paragraphs 7 and 18 of the declaration of Sere Allen.
On March 14, 2022, the government moved to strike paragraphs 3
through 10 of Dale Thompson's declaration. The next day, the
Plaintiffs filed a motion for leave to file amended briefs and
appendices. On April 5, 2022, the Plaintiffs filed a motion to
exclude the expert opinion and continued participation of David L.
Kennell and Kennell and Associates.
The government argues the Plaintiffs' breach of contract claim
fails as a matter of law because the parties' contract assigned the
ultimate responsibility for identifying any errors in the
adjustment calculation to the Plaintiffs, and provided them a hard
and fast 30-day deadline for doing so. The Plaintiffs argue the
government is liable to them on the following two bases: (1) the
Government breached the DPP by failing to properly extract and
adjust all of Plaintiffs' radiology claims; and (2) the Parties
committed a mutual mistake of fact upon entering the DPP by
believing that the government had properly reimbursed the
Plaintiffs for all categories of outpatient services (except for
radiology), including by appropriately paying for facility
charges.
On June 9, 2022, after nine years of litigation and one Federal
Circuit appeal, the Court heard oral argument regarding the
government's motion for summary judgment reviewing three issues:
(1) breach of contract; (2) mutual mistake of fact; and (3) class
certification.
For the reasons he detailed in his Opinion, Judge Holte: (1) grants
in part and denies in part the government's motion for summary
judgment as to the Plaintiffs' breach of contract claim; (2) grants
the government's motion for summary judgment as to the Plaintiffs'
mutual mistake of fact claim; and (3) defers ruling on the
Plaintiffs' motion for class certification.
Judge Holte holds that (i) the government did not have a duty to
obtain and adjust original native data from plaintiff hospitals,
(ii) the government did have a duty to correctly adjust data from
its TMA database, (iii) the government did have a duty to correctly
consider zip codes for plaintiff hospital locations not provided by
the hospitals in their discretionary payment submissions, (iv) the
government breached its duty to correctly adjust data from TMA's
database, (v) the Plaintiffs were not obligated to pre-check TMA's
data, (vi) the government did not prove the discretionary payment
agreement shifted the risk of all data issues to plaintiff
hospitals, and (vii) there was no mutual mistake of fact.
Judge Holte declines to rule on class certification at this time.
As the only surviving breach of contract claim is the government's
duty to extract, analyze, and adjust line items from its database,
the parties will next file a joint status report regarding
scheduling for updated class certification briefing.
Finally, as the parties confirmed in the 11 May 2022 pre-oral
argument status conference, several pending evidentiary motions
were not consequential for summary judgment and Judge Holte
accordingly stays: (i) the government's motion to exclude
inadmissible evidence pursuant to Rule 408; (ii) the Plaintiffs'
motion to exclude expert opinions of Jane Jerzak; (iii) the
Plaintiffs' motion to exclude expert opinions of Anthony Fay; (iv)
the government's motion to strike Rule 408 Evidence Relied on by
the Plaintiffs in Summary Judgment Briefing; (v) the government's
motion to strike Paragraphs 3 - 10 of the Dale Thompson
Declaration"; (vi) the government's motion to strike Paragraphs 7
and 18 of the Declaration of Sere Allen, and Associated Briefing;
and (vii) the Plaintiffs' motion to exclude expert opinions of
David Kennell.
A full-text copy of the Court's Dec. 13, 2022 Opinion & Order is
available at https://tinyurl.com/3te92fby from Leagle.com.
Alexander J. Pires, Jr., Pires Cooley, of Washington, DC, with whom
was Gregory A. Brodek -- GABrodek@duanemorris.com -- Duane Morris
LLP, of Bangor, ME, for the Plaintiffs.
A. Bondurant Eley, Senior Trial Counsel, with whom were Steven J.
Gillingham, Assistant Director, Patricia M. McCarthy, Director,
Commercial Litigation Branch, and Brian M. Boynton, Principal
Deputy Assistant Attorney General, Civil Division, U.S. Department
of Justice, all of Washington, DC, for the Defendant.
VIBRANTCARE REHABILITATION: Remand of Williams Suit Reversed
------------------------------------------------------------
The Court of Appeals for the Ninth Circuit reverses the district
court's order remanding the case, COLLEEN WILLIAMS,
Plaintiff-Appellee v. VIBRANTCARE REHABILITATION, INC.,
Defendant-Appellant, Case No. 22-16424 (9th Cir.), to the state
court.
Williams, a former employee, brought a putative class action
against VibrantCare in Sacramento County Superior Court alleging,
inter alia, unpaid overtime wages, missed meal periods and rest
breaks, inaccurate wage statements, and untimely final wage
payments.
The proposed class consisted of all current and former hourly paid
or non-exempt employees who worked for VibrantCare within
California at any time during the four years preceding the
complaint. VibrantCare's hourly paid or non-exempt workforce during
that time consisted of approximately 44.2% full-time employees,
15.4% part-time employees, and 40.4% per diem employees.
VibrantCare removed the case to the federal district court for the
Eastern District of California under 28 U.S.C. Section 1453 on the
basis of diversity jurisdiction under the Class Action Fairness Act
("CAFA"), 28 U.S.C. Section 1332(d). The district court remanded
the case to state court. It held that the case did not satisfy the
CAFA subject matter jurisdictional amount in controversy
requirement of more than $5 million.
The Ninth Circuit reviews the district court's remand order de
novo.
VibrantCare first argues that the district court erred in requiring
it to prove the amount in controversy by a preponderance of the
evidence. In cases where plaintiff makes a facial attack on
removal, the district court must only determine if "the allegations
are sufficient as a legal matter to invoke the court's
jurisdiction." By contrast, if plaintiff makes a factual attack,
the burden is on the defendant to show, by a preponderance of the
evidence, that the amount in controversy exceeds the $5 million
jurisdictional threshold. A factual attack is one that makes a
reasoned argument as to why any assumptions on which defendant's
jurisdictional allegations are based are not supported by the
evidence.
In this case, the Ninth Circuit holds that Williams clearly made a
factual attack. She attacked the factual evidence in the record
addressing the number and types of violations, and the attorney's
fees calculations, underlying VibrantCare's contentions with
respect to the amount in controversy. Therefore, the district court
properly used the preponderance of the evidence standard.
Moreover, the Ninth Circuit finds that the district court erred in
addressing the evidence. It says the court applied a value of $0 to
almost all of the claims against VibrantCare, including almost all
claims made by full-time employees. The district court concluded
that VibrantCare unreasonably calculated the amounts part-time and
per diem employees claimed in the same manner as the amounts
full-time employees claimed. It then discounted equally the amounts
claimed by all employees. This was error, given that the reasons
that supported discounting to $0 the part-time and per diem
employees' claims did not apply to the full-time employees'
claims.
For purposes of removal, VibrantCare calculated that full-time
employees claimed an average of one hour per week of unpaid
overtime, two missed meal breaks a week, and two missed rest
periods a week. If that calculation is reasonable and may be used
in calculating the amount in controversy for purposes of removal,
the amount of damages claimed by the full-time employees is very
close to the required removal amount of $5 million.
The Ninth Circuit recognizes that the district court did not
independently assess the reasonableness of VibrantCare's
calculation of claimed damages for full-time employees based on the
violation rates for unpaid overtime and missed meal and rest
breaks. It simply zeroed out all claims for full-time employees
except the wage statement claims. But the Ninth Circuit sees no
basis on this record to conclude that VibrantCare's assumption of
an average of one hour per week of claimed unpaid overtime, two
missed meal breaks, and two missed rest periods for full-time
employees was unreasonable.
Part-time and per diem employees make up over half of the proposed
class. Even treating as appropriate a very substantial discount in
the amount of damages claimed by those part-time and per diem
employees, the discounted damages those part-time and per diem
employees claim, when combined with the damages full-time employees
claim, exceeds $5 million.
The Ninth Circuit, therefore, concludes that VibrantCare has
sufficiently shown that there is more than $5 million in
controversy, and that the court erred in remanding to state court.
A full-text copy of the Court's Dec. 13, 2022 Memorandum is
available at https://tinyurl.com/4my3sehk from Leagle.com.
WE LEND: Faces Skinner Suit Over Unsolicited Text Messages
----------------------------------------------------------
FEDERICO SKINNER, individually and on behalf of all others
similarly situated, Plaintiff v. WE LEND, LLC, Defendant, Case No.
CACE-22-017737 (Fla. Cir., 17th Judicial, Broward Cty., Dec. 3,
2022) is a putative class action under the Florida Telephone
Solicitation Act arising from the Defendant's engagement in
unsolicited text messaging to promote its goods and services to
those who have not provided their prior express written consent.
According to the complaint, the Defendant's unwanted telephonic
sales calls have caused Plaintiff and the Class members harm,
including violations of their statutory rights, actual liquidated
damages, annoyance, nuisance, and invasion of their privacy.
Through this action, Plaintiff seeks an injunction and damages on
behalf of himself and the Class members and any other available
legal or equitable remedies resulting from the unlawful actions of
Defendant, says the suit.
We Lend, LLC is a direct lender providing capital to homeowners and
real estate investors.[BN]
The Plaintiff is represented by:
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Boulevard Suite 1400
Ft. Lauderdale, FL 33301
E-mail: mhiraldo@hiraldolaw.com
Telephone: (954) 400-4713
- and -
Jibrael S. Hindi, Esq.
THE LAW OFFICES OF JIBRAEL S. HINDI
110 SE 6th Street Suite 1744
Ft. Lauderdale, FL 33301
[*] Fast Fashion Company Sued Over "Conscious Choice" Clothing Line
-------------------------------------------------------------------
Dan Jasnow, Esq., Anthony Lupo, Esq., Helenka Mietka, Esq., Matthew
Mills, Esq., and Eva Pulliam, Esq., of ArentFox Schiff, in an
article for JDSupra, disclosed that on November 3, 2022, two
consumers filed a putative class action complaint against a fast
fashion company, claiming that the apparel company's "Conscious
Choice" clothing line deceived consumers into buying products
labeled as made from environmentally friendly materials, even
though the clothes included materials like reformulated polyester,
which is harder to recycle than the plastic bottles it is made
from.
The "Conscious Choice" Line
The apparel company's Conscious Choice line is marketed as "the
shortcut to sustainable fashion." The line features apparel and
accessories made from materials such as organic cotton or recycled
polyester, which the company claims are more sustainable. On its
website, the company describes the clothing line as "created with a
little extra consideration for the planet" and that "at least 50%
of each piece is made from more sustainable materials." To identify
the line within stores, the company used a green hashtag and their
marketing, advertisements, and social media for Conscious Choice
apparel utilized green imagery, with models often surrounded by
plants.
The Complaint
Filed in the US District Court for the Eastern District of
Missouri, the complaint alleges that the fast fashion company's
Conscious Choice line misrepresents the line's environmental impact
and misleads consumers into paying a price premium for allegedly
environmentally friendly apparel.
Notably, the plaintiff alleges:
The company knew that consumers would pay more for a product
labeled a "Conscious Choice," more "sustainable," and
environmentally friendly, and intended to deceive plaintiffs and
class members by marketing and labeling the products as
"conscious," "sustainable," and environmentally friendly products.
The products at issue are primarily made of recycled polyester. The
plaintiff alleges that recycled polyester has been heavily marketed
by the company as a sustainable and environmentally responsible
material, and presented to consumers as a more "conscious choice."
The plaintiff argues that given recycled polyester often ends up in
a landfill or incinerated, it does not restrict the shedding of
microplastics, and its use perpetuates disposable solutions. This
material does not make a product a more "conscious choice," more
"sustainable," or more environmentally friendly.
The company's Conscious Choice Collection actually contains a
higher percentage of synthetics than its main collection, namely
72% versus 61%, respectively.
The Green Guides
The Green Guides were issued by the US Federal Trade Commission to
help marketers avoid making environmental claims that could mislead
consumers. The plaintiff cites several Green Guide provisions and
principles in making their claims:
Overstatement of Environmental Attributes. An environmental
marketing claim should not overstate, directly or by implication,
an environmental attribute or benefit. Marketers should not state
or imply environmental benefits if the benefits are negligible.
Comparative Claims. Comparative environmental marketing claims
should be clear to avoid consumer confusion about the comparison.
Marketers should have substantiation for the comparison.
General Environmental Benefit Claims. It is deceptive to
misrepresent, directly or by implication, that a product, package,
or service offers a general environmental benefit.
Unqualified General Environmental Benefit Claims. Unqualified
general environmental benefit claims are difficult to interpret and
likely convey a wide range of meanings. In many cases, such claims
likely convey that the product, package, or service has specific
and far-reaching environmental benefits and may convey that the
item or service has no negative environmental impact. Because it is
highly unlikely that marketers can substantiate all reasonable
interpretations of these claims, marketers should not make
unqualified general environmental benefit claims.
Avoiding Deception. To avoid deception, marketers should use clear
and prominent qualifying language that limits the claim to a
specific benefit or benefits.
Takeaway
The suit against the fast fashion company reflects an increased
focus on greenwashing claims by regulators and plaintiffs'
attorneys. Before dissemination of environmental benefit claims,
companies should confirm that the claims made by their product
marketing and product labels are supported by competent and
reliable substantiation.
As we've seen, unsubstantiated environmental claims can lead to
class actions with potentially hefty price tags. [GN]
*********
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