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C L A S S A C T I O N R E P O R T E R
Friday, December 23, 2022, Vol. 24, No. 250
Headlines
127 FOURTH AVENUE: Altamirano Sues to Recover Unpaid Minimum Wages
3M COMPANY: Barry Suit Removed to N.D. Alabama
3M COMPANY: Payne Suit Removed to N.D. Alabama
5 BORO GREEN: Ibarra Sues Over Unpaid Overtime Wages
A & L OF NY: Court Refuses to Approve $24K Settlement in Chen Suit
ABBOTT LABORATORIES: Dave Suit Transferred to E.D. New York
ACUITY CHS: Court OKs 30-Day Extension of Class Cert Deadlines
ADVANCED MOVING: Fails to Pay Laborers' Minimum & OT Wages
AGGRESSIVE DEVELOPMENTS: Bid to Stay Rushing Suit Granted in Part
ALLERGAN PLC: Wins Summary Judgment in Securities Class Action
AMICA MUTUAL: Court Allows Dismissal of Merullo Class Suit
ANTHEM MARINE: Winegard Files ADA Suit in E.D. New York
APPLE INC: Faces Hughes Suit Over Airtag Tracking Device
APPLE INC: Macbook Keyboard Settlement Gets Preliminary Court Okay
ARCBEST II INC: Majors Sues Over Failure to Pay Proper Overtime
ARNOFF MOVING: Argenti Sues Over Unpaid Overtime Wages
ASTRA SPACE: Artery Suit Transferred to N.D. California
ASTRA SPACE: Riley Suit Transferred to N.D. California
AWP INC: Fails to Pay Proper Wages to Flaggers, Harris Claims
BOSTON BEER: New York Judge Dismisses Securities Class Action
BRICK ARMORY GROUP: Fagnani Files ADA Suit in S.D. New York
BRISTOL BAY: Bid for Class Certification in Awmagan Suit Denied
BUCHANAN AUTOMOTIVE: Bid for More Time to File Class Cert OK'd
BUCHANAN AUTOMOTIVE: Kennedy Seeks More Time to File Class Cert.
BUILD.COM INC: Garcia Suit Removed to S.D. California
C. R. BARD: PMC Seeks to Seal Miravete's Expert Report
C. R. BARD: Renewed Bid for Class Certification Filed
CERTAIN UNDERWRITERS: Beazley Wins Summary Judgment in FICO Suit
CHAMPION PERSONAL: Petit Sues Over Failure to Pay Proper Wages
CHARLES RO MANUFACTURING: Jackson Files ADA Suit in S.D. New York
CHIPOTLE MEXICAN: McMahon Seeks Filing of Class Cert Under Seal
CITRIX SYSTEMS: Bids for Lead Plaintiff Appointment Due Feb. 13
CMK CAPITAL: Faces Parrilla Suit Over Unsolicited Text Messages
CODY ASKINS: Van Elzen Suit Moved From Wisconsin to W.D. Missouri
COPPER PENNY: Healey Sues Over Restaurant Staff's Unpaid Wages
COULTER VENTURES: Class Cert Bid Filing Deadline Extended in Bishop
COULTER VENTURES: Class Cert Bid Filing Deadline Extended in Braun
CROCS RETAIL: Faces Class Action Over Consumer Privacy Violations
CYCLEBAR SOUTHLAKE: Faces Pinn Suit Over Unsolicited Text Messages
D & L PAVING: Faces Ibarra Suit Over Mason Laborers' Unpaid Wages
DAIMLER TRUCK: Brooks Sues Over Unpaid Overtime Compensation
DAVID MICHERY: Disregards Voting Rights of Shareholders, Suit Says
EAGLE EYE-ENVIROWORKS: Fails to Pay Hazard Premium, Fortner Says
EFREM HARKHAM: Fails to Recall Employees Within 5 Business Days
ELON MUSK: Plaintiffs File Second Amended Complaint in RICO Suit
F45 TRAINING: Bids for Lead Plaintiff Appointment Due February 6
FLORIDA: Court Denies Crosby's Bid to Recuse and Other Motions
FRESENIUS MEDICAL: Fails to Provide Proper Wages, Mooney Claims
FTX TRADING: Hawkins Sues Over Fraudulent Business Practices
FTX TRADING: Jessup Sues Over Fraudulent Crypto Business Practices
GEBRUEDER KNAUF: Chedester's Bid for Additional Discovery Denied
GENERAC HOLDINGS: Oakland Cty. Sues Over Share Price Drop
GLOBAL PLASMA: Fishlock Sues Over Deceptive Air Cleaning Devices
GOOD DEAL: Settlement Claims Filing Deadline Set March 13, 2023
GORILLAS TECHNOLOGIES: Morse Sues Over Supervisors' Unpaid Wages
HEINEKEN USA: Faces Ranch Water False Advertising Class Action
IDT CORP: Incurred Legal Fees in JDS1 Stockholder Suit in Oct. 2022
IRIS ENERGY: Faces Investors' Class Action Lawsuit in New Jersey
JACKSONVILLE UNIVERSITY: Court Narrows Claims in Allen Class Suit
JCB TRANSPORTATION: Tucker Seeks Mechanics' and Drivers' Unpaid OT
KANSAS CITY: Jury Issues $28.36-Mil. Class Action Verdict
LEGACY CHRISTIAN: Saskatchewan Government Named in Class Action
LIFE SPECTACULAR: S.D. New York Denies Bid to Dismiss Slade Suit
LOUIS VUITTON: Court Grants in Part Bid to Dismiss Theriot Suit
MADRID BAKERY: Fails to Pay OT Wages, Parras Class Suit Alleges
MASTERCARD INC: Loses Bid to Narrow Size of UK Class Action Claim
MATRIX ABSENCE: Heckle's Bid to Certify Class on NYLL Claims Okayed
MDL 2879: Denial of Chicago Suit Transfer to N.D. Illinois Endorsed
MDL 2936: Bids for Summary Judgment in Nationwide Suit Partly OK'd
MEDIBANK PRIVATE: Faces Class Action Over Alleged Data Breach
MEIJER INC: Green Files Mislabeling Suit Over Pain Relief Patches
MOLSON COORS: Nootens Sue Over Mislabeled Sparkling Mineral Water
NEW ORLEANS, LA: Faces Class Actions for Overdetaining Inmates
NEW YORK, NY: Faces Class Suit Over Mental Health Care Management
OAK RIDGE: Pitts Sues Over Fraud ED Treatment Success Rate
ORRSTOWN FINANCIAL: Settles SEPTA Shareholder Class Suit
PEPSICO INC: Taylor Sues Over Mislabeled Sparkling Juice Products
REVERSE MORTGAGE: Giglio Files Suit Over Ilegal Termination
RICOLA USA: Faces Class Action Over Misleading Green Tea Labels
RIGOLO PRODUCTIONS: Lunnon Suit Seeks Barbacks' Unpaid Wages
SEDGWICK CLAIMS: Faces Moscowitz Suit Over CSRs' Unpaid OT
SENSIO INC: Defeats Class Action Over Flawed Pressure Cookers
SILVERGATE CAPITAL: Faces Zuleta Suit Over FTX, Alameda Dealings
SINOVAC BIOTECH: Wrongfully Diluted Equity Interests, Lerner Says
SPECTRUM PHARMACEUTICALS: Osorio-Franco Files Securities Class Suit
ST. LOUIS, MO: Court Dismisses Casey-El Suit Without Prejudice
TRANS UNION: Faces FCRA Class Action Lawsuit in West Virginia
TSCHETTER SULZER: Court Refuses to Dismiss Warden FDCPA Suit
TWIST BIOSCIENCE: Bids for Lead Plaintiff Appointment Due Feb. 10
UBER TECHNOLOGIES: Josefsberg Sues Over Unfair Background Checks
ULTA SALON: Faces Class Action Over "Session Replay" Software Use
UNITED PARCEL: Rogers Sues Over Supervisors' Unpaid OT Wages
UNITED STATES: D.C. Court Dismisses Risenhoover v. Thomas, et al.
VILLAS OF HOLLY: Fails to Pay OT & Straight Time, Mitchell Alleges
VISTA, CA: Schroeder Sues Over Failure to Pay Proper OT Wages
WELLS FARGO: Mosely Sues Over Illegal Collection of Overdraft Fees
XANADU MARKETING: Hall Seeks to Stay Class Certification Deadline
ZILLOW GROUP: Court Denies Motion to Dismiss Securities Class Suit
[*] Akin Gump Attorneys Discuss Rise of Class Actions in Europe
[*] New Australia Law Allows Unions to Bring Suits Against Cos.
Asbestos Litigation
ASBESTOS UPDATE: J&J Takes Issue with Expert Witness Testimony
ASBESTOS UPDATE: Jury Orders Avon to Pay $50MM in Talc Suit
*********
127 FOURTH AVENUE: Altamirano Sues to Recover Unpaid Minimum Wages
------------------------------------------------------------------
Jaime Altamirano, on behalf of himself and others similarly
situated v. 127 Fourth Avenue Restaurant LLC (d/b/a Mocha Red
Steakhouse + Mixology Bar), and Naphtaly Abenaim, Case No.
1:22-cv-10500 (S.D.N.Y., Dec. 13, 2022), is brought to recover
unpaid minimum wages, unlawfully deducted wages, liquidated and
statutory damages, pre- and post-judgment interest, and attorneys'
fees and costs pursuant to the Fair Labor Standards Act and
violations of Articles 6 and 19 of the New York State Labor Law,
and their supporting New York State Department of Labor
regulations, and the NYLL's Wage Theft Prevention Act.
The Defendants had a policy and practice commonly known as "time
shaving". Although the Defendants had an electronic time keeping
device that could have recorded the precise times that the
Plaintiff, or other similarly situated employees, began work every
day, the Defendants' policy and practice was to have a manager
adjust the Plaintiff's, and other similarly situated employees',
clock-out times. According to time records generated by the
Defendants' point-of-sale system, the manager would typically
adjust the Plaintiff's, and other similarly situated employees',
clock-out times at around 11:30 p.m., despite the fact that the
Plaintiff would regularly work as late as 12:00 a.m. or 3:00 a.m.
As a result, the Plaintiff, and other similarly situated employees,
were forced to work off the clock, without pay, during this period.
The Defendants also maintained a policy and practice of unlawfully
appropriating Plaintiff's and other tipped employees' tips and made
unlawful deductions from Plaintiff's and other tipped employees'
wages, says the complaint.
The Plaintiff was employed as a server at Defendants' kosher
steakhouse located in New York City.
The Defendants own, operate and/or control the kosher steakhouse
located New York City.[BN]
The Plaintiff is represented by:
Joshua Levin-Epstein, Esq.
Jason Mizrahi, Esq.
LEVIN-EPSTEIN & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4700
New York, NY 10165
Phone: (212) 792-0048
Email: Jason@levinepstein.com
3M COMPANY: Barry Suit Removed to N.D. Alabama
----------------------------------------------
The case captioned as Michael James Barry; Jesse David Abbott; Andy
Wayne Akers; Roland Jesus Alaniz; Dominic Joseph Albanese II; John
Alexander; Jerry James Allore; David Rae Anderson; Anthony George
Antanaitis; Tommy Eugene Armstrong; Robbie Gerard Bailey; Ollie
Darnie Barbary; Benjamin Franklin Barfield III; Brian Keith Barker;
Matthew Lowell Barr; Gene Michael Bateman; Daniel Robert Bauder;
Randy D. Benedetto; Gilbert Benitez; Harlan G. Bennett; Michael
Frank Benton; Robert Berger; Richard Bertoncin; Jay Erin Bishop;
Charles Blacakmon; Marshall Edward Blore; Devin Glenn Boler; John
Charles Bone; Mike Bosquez; Victor Bendict Brambila; Charles Roy
Brown; Curtis Brown; Glenn Paul Brown Jr.; Roger Walker Brown;
Sidney Newton Brown; Alan Thomas Buffington; Robert Joseph Buras;
Jarrod Ray Burt; Kevin Paul Busch; John Carlisle Butcher Jr.; Gerry
Wayne Butler; Paul Joseph Byrne; John Richard Byrnes; George
Federick Callahan; Aubrey Ray Campbell Sr.; Robert Campbell;
Rudolph Joseph Caparrotta Jr.; Javier Agustine Carrasco; Willie
Davis Carson; Ramon Cecena Jr., and others similarly situated v. 3M
COMPANY (f/k/a Minnesota Mining and Manufacturing Company); AGC
CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.;
ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL
CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS,
INC.; CHEMOURS COMPANY FC, LLC; CLARIANT CORP.; CORTEVA, INC.;
DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT
INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Case No. 01-CV-2022-903464.00 was removed
from the Circuit Court for the Tenth Judicial Circuit, Jefferson
County, Alabama, to the United States District Court for the
Northern District of Alabama on Dec. 14, 2022, and assigned Case
No. 2 2:22-cv-01560-AMM.
The Plaintiffs seek to hold 3M and certain other Defendants liable
based on their alleged conduct in designing, manufacturing, and/or
selling aqueous film-forming foams ("AFFF") that Plaintiffs allege
were used in firefighting activities, thereby causing injury to
Plaintiffs. Specifically, Plaintiffs allege that per- and
polyfluoroalkyl substances ("PFAS"), including perfluorooctanoic
acid ("PFOA") and perfluorooctane sulfonic acid ("PFOS"), were
contained in Defendants' AFFF. Moreover, each Plaintiff expressly
alleges that he "regularly used, and was thereby directly exposed
to, AFFF in training and to extinguish fires during his working
career as a military and/or civilian firefighter" and allegedly
suffered injury "as a result of exposure to Defendants' AFFF
products."[BN]
The Defendants are represented by:
M. Christian King, Esq.
Harlan I. Prater, IV, Esq.
W. Larkin Radney, IV, Esq.
Benjamin P. Harmon, Esq.
LIGHTFOOT, FRANKLIN & WHITE, L.L.C.
The Clark Building
400 North 20th Street
Birmingham, AL 35203-3200
Phone: (205) 581-0700
Facsimile: (205) 581-0799
Email: cking@lightfootlaw.com
hprater@lightfootlaw.com
lradney@lightfootlaw.com
bharmon@lightfootlaw.com
3M COMPANY: Payne Suit Removed to N.D. Alabama
----------------------------------------------
The case captioned as Lloyd Lynn Payne; John Jeffery Heineck; James
Marshall Strock; Mark Kevin Davis; Wallace George Lovely; John
William Carey; Todd Albert Mcguire; Robert Anthony Bouterie; Scott
Randolph Gregory; Lawrence Bagley Perkins; Dale Brent Clark; Paul
Andrew Gunn; Dennis Eugene Reeser, Jr; Michael Attilio Panaccione;
Brady Joseph Wolfe; Gregg Laurence Leleniewski; George Conway Horn;
John Passarelli; Michael Leeland Lambiase; Richard Anthony
Bielenberg; Timothy Scott Ney; Samuel Dean Vest; Anthony Michael
Niosi Ii; Robert Duane Harbaugh; and James Robert Westphal, and
others similarly situated v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); AGC CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CLARIANT CORP.; CORTEVA, INC.; DEEPWATER CHEMICALS, INC.; DU PONT
DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU
PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION
FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY;
TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul
Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY
AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.), Case No.
01-CV-2022-903412.00 was removed from the Circuit Court for the
Tenth Judicial Circuit, Jefferson County, Alabama, to the United
States District Court for the Northern District of Alabama on Dec.
14, 2022, and assigned Case No. 2 2:22-cv-01559-SGC.
The Plaintiffs seek to hold 3M and certain other Defendants liable
based on their alleged conduct in designing, manufacturing, and/or
selling aqueous film-forming foams ("AFFF") that Plaintiffs allege
were used in firefighting activities, thereby causing injury to
Plaintiffs. Specifically, Plaintiffs allege that per- and
polyfluoroalkyl substances ("PFAS"), including perfluorooctanoic
acid ("PFOA") and perfluorooctane sulfonic acid ("PFOS"), were
contained in Defendants' AFFF. Moreover, each Plaintiff expressly
alleges that he "regularly used, and was thereby directly exposed
to, AFFF in training and to extinguish fires during his working
career as a military and/or civilian firefighter" and allegedly
suffered injury "as a result of exposure to Defendants' AFFF
products."[BN]
The Defendants are represented by:
M. Christian King, Esq.
Harlan I. Prater, IV, Esq.
W. Larkin Radney, IV, Esq.
Benjamin P. Harmon, Esq.
LIGHTFOOT, FRANKLIN & WHITE, L.L.C.
The Clark Building
400 North 20th Street
Birmingham, AL 35203-3200
Phone: (205) 581-0700
Facsimile: (205) 581-0799
Email: cking@lightfootlaw.com
hprater@lightfootlaw.com
lradney@lightfootlaw.com
bharmon@lightfootlaw.com
5 BORO GREEN: Ibarra Sues Over Unpaid Overtime Wages
----------------------------------------------------
Javier Almazan Ibarra, individually and on behalf of others
similarly situated v. 5 BORO GREEN SERVICES LLC, MARK H. CALEM,
MATTHEW J. FINNERAN a/k/a MATEO, ALAN D. GOLDMAN, EYSNER LACAYO
a/k/a JOHNNY, and EDWIN ALEXANDER GUANDIQUE a/k/a EDWIN ALVAREZ,
Case No. 2:22-cv-07555 (E.D.N.Y., Dec. 13, 2022), is brought for
unpaid overtime wages pursuant to the Fair Labor Standards Act of
1938, and for violations of the N.Y. Labor Law, including
applicable liquidated damages, interest, attorneys' fees and
costs.
The Plaintiff worked for the Defendants in excess of 40 hours per
week, without appropriate overtime compensation for the hours that
he worked. Rather, the Defendants failed to maintain accurate
recordkeeping of the hours worked and failed to pay the Plaintiff
appropriately for any hours worked, either at the straight rate of
pay or for any additional overtime premium. The Defendants' conduct
extended beyond the Plaintiff to all other similarly situated
employees. The Defendants maintained a policy and practice of
requiring the Plaintiff and other employees to work in excess of 40
hours per week without providing the overtime compensation required
by federal and state law and regulations, says the complaint.
The Plaintiff was employed as a helper, driving different trucks,
and packing and unpacking goods, at the garbage collection
service.
The Defendants own, operate, or control a garbage collection
service, located in Hicksville, New York, under the name "5 Boro
Green Services LLC."[BN]
The Plaintiff is represented by:
Catalina Sojo, Esq.
CSM LEGAL, P.C
60 East 42nd Street, Suite 4510
New York, NY 10165
Phone: (212) 317-1200
Facsimile: (212) 317-1620
A & L OF NY: Court Refuses to Approve $24K Settlement in Chen Suit
------------------------------------------------------------------
Judge Mary Kay Vyskocil of the U.S. District Court for the Southern
District of New York denies without prejudice approval of the
proposed $24,000 settlement in the lawsuit styled ANGUS CHEN, on
behalf of himself and a class and collective of similarly situated
individuals, Plaintiff v. A & L OF NY CORP d/b/a IZAKAYA TORIBAR,
SCOTT LEE, and FRANK AHN, Defendants, Case No. 1:22-cv-03139-MKV
(S.D.N.Y.).
The Plaintiff filed this action against his former employer, a
restaurant located in midtown Manhattan, alleging that the
restaurant engaged in "wage theft" by stealing between 20% and 30%
of the hourly wages and tips earned by service employees, among
other violations. The complaint asserted a purported collective
action claim for violations of the Fair Labor Standards Act
("FLSA") and purported class action claims under the New York Labor
Law ("NYLL").
On Oct. 12, 2022, the Plaintiff's counsel informed the Court that
the parties had reached a settlement. Only after the Court ordered
the parties to file a joint letter with sufficient information to
enable the Court to evaluate whether the settlement was fair and
reasonable as required by Cheeks v. Freeport Pancake House Inc.,
796 F.3d 199 (2d Cir. 2015), the parties filed a joint letter
summarizing the terms of the settlement and providing supporting
documentation.
The proposed settlement agreement ("PSA") requires the Defendants
to pay a total amount of $24,000. See Proposed Settlement
Agreement. The Plaintiff will receive $10,000 of that amount, and
the remaining $14,000 will be distributed to the Plaintiff's
counsel as attorney's fees and litigation costs.
Judge Vyskocil notes that this is an individual settlement by the
named Plaintiff only and abandons any purported collective and/or
class claims.
The parties explain in their Letter that $2,602 of the $14,000
reimburses the Plaintiff's counsel for litigation costs, for which
documentation is provided. The proposed attorneys' fees are,
therefore, $11,398.
Judge Vyskocil states that the Court is unable to conclude at this
time that the settlement is fair and reasonable. Accordingly,
approval of the settlement is denied without prejudice.
After a careful review of the parties' proposed settlement, the
Court has two principal concerns that prevent it from determining
whether the settlement is fair and reasonable. First, the Court
does not have enough information evaluate the Plaintiff's range of
possible recovery. Second, the Court is unable to determine whether
the proposed attorney's fees are reasonable.
Judge Vyskocil opines that the parties do not provide the Court
with enough information to assess the Plaintiff's range of possible
recovery. The Plaintiff's counsel baldly asserts that the
settlement amount represents "over 90% of Plaintiffs' potential
recovery."
Because the parties omitted any potential range of recovery for
these causes of action from their calculations and failed to detail
the strengths or weaknesses of any of the Plaintiff's claims, the
Court does not have enough information to evaluate the bona fides
of the settlement.
In evaluating FLSA settlement agreements providing for attorneys'
fees, district courts have discretion in determining whether to
award attorneys' fees based on either the lodestar method or the
percentage of the settlement fund. The Court finds the proposed
settlement questionable under either method.
First, starting with the percentage method, Judge Vyskocil notes
that district courts regularly approve attorneys' fees of up to
one-third of the settlement amount in FLSA cases. The Second
Circuit has cautioned, however, that there is no "explicit
percentage cap" or "limit on attorneys' fees in FLSA actions," and
instead, the most critical factor in determining the reasonableness
of a fee award is the degree of success obtained.
The proposed settlement awards $14,000 to the Plaintiff's counsel
-- 58% of the total settlement fund. Even after subtracting the
$2,602 in litigation costs included in this number, counsel will
still receive approximately 48% of the settlement fund in fees.
Although there is no "explicit percentage cap" on the amount
counsel may receive in fees, this number still gives the Court
"pause."
The Court's hesitation is magnified by the fact that the retainer
agreement executed by the Plaintiff states that counsel would seek
a contingency fee of only 33.33% of the gross recovery (plus
costs). The Court is further unable to evaluate whether "the degree
of success obtained" by the Plaintiff's counsel merits a fee beyond
this contingency arrangement. The Plaintiff's counsel also never
moved to certify this action as a collective.
Second, the lodestar method leaves the Court's doubts unresolved,
Judge Vyskocil says. The lodestar method is often used "as a cross
check" on the percentage method to ensure the reasonableness of
attorneys' fees. The lodestar amount is the product of a reasonable
hourly rate and the reasonable number of hours required by the
case.
Along with the Letter, THE Plaintiff's counsel, Tanvir Rahman,
submitted detailed time records indicating that he spent 48.2 hours
on this case. At a billable rate of $500 per hour, THE Plaintiff
contends that the proposed settlement amount of $14,000 represents
a fraction of THE Plaintiff's counsel lodestar figure, which totals
approximately $24,100.
Given the minimal work done by the Plaintiff's counsel, it is not
clear that the number of hours expended were warranted,
appropriate, or reasonable, Judge Vyskocil holds. Moreover, at this
stage, the Court is unable to determine whether Mr. Rahman's hourly
rate is reasonable.
Although the Letter asserts that the Plaintiff's counsel is
experienced in wage-and-hour matters, and typically bills $750 per
hour, the parties fail to provide any information substantiating
this so-called "experience," such as how long Mr. Rahman has
practiced law, or whether he is a partner or associate at his firm,
Judge Vyskocil points out. Particularly where, as here, the claimed
rate is considerably higher than the typical hourly rate approved
by courts in this District in this type of case, the Plaintiff's
counsel's self-serving assertions, standing alone, are
insufficient, Judge Vyskocil holds.
For these reasons, the Court cannot approve the settlement as
currently proposed. The Parties were ordered to submit an amended
request for judicial approval of the proposed settlement, with
appropriate supporting detail and/or documents on Dec. 20, 2022.
A full-text copy of the Court's Order dated Dec. 5, 2022, is
available at https://tinyurl.com/5n776exp from Leagle.com.
ABBOTT LABORATORIES: Dave Suit Transferred to E.D. New York
-----------------------------------------------------------
The case styled as Prushti Dave, Arlene Bergum, Emily DePol, Keya
Johnigan, and Brianna Mckay, on behalf of themselves and all others
similarly situated v. ABBOTT LABORATORIES, ALERE, PROCTER & GAMBLE
MANUFACTURING COMPANY, SPD SWISS PRECISION DIAGNOSTICS GMBH, CHURCH
& DWIGHT CO., INC., TARGET CORPORATION, and WALGREEN CO., Case No.
3:22-cv-05191 was transferred from the U.S. District Court for the
Northern District of California, to the U.S. District Court for the
Eastern District of New York on Dec. 14, 2022.
The District Court Clerk assigned Case No. 1:22-cv-07642-DG-RER to
the proceeding.
The nature of suit is stated as Fraud or Truth-In-Lending.
Abbott Laboratories -- https://www.abbott.com/ -- is an American
multinational medical devices and health care company with
headquarters in Abbott Park, Illinois.[BN]
The Plaintiff is represented by:
Mark A. Finkelstein, Esq.
Brent S. Colasurdo, Esq.
UMBERG ZIPSER LLP
1920 Main Street, Suite 750
Irvine, CA 92614
Phone: (949) 679-0052
Email: mfinkelstein@umbergzipser.com
bcolasurdo@umbergzipser.com
- and -
Peter A. Binkow, Esq.
Jonathan M. Rotter, Esq.
Natalie S. Pang, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Phone: (310) 201-9150
Email: pbinkow@glancylaw.com
jrotter@glancylaw.com
npang@glancylaw.com
The Defendants are represented by:
Gabrielle Jaynea Anderson-Thompson, Esq.
BARNES & THORNBURG LLP
2029 Century Park East, Suite 300
Los Angeles, CA 90067
Phone: (310) 284-3880
Fax: (310) 284-3894
Email: GAThompson@btlaw.com
- and -
Francisca Minghao Mok, Esq.
Charles Pum-Seek Hyun, Esq.
REED SMITH LLP
1901 Avenue of the Stars, Suite 700
Los Angeles, CA 90067
Phone: (310) 734-5287
Fax: (310) 734-5299
Email: fmok@reedsmith.com
chyun@reedsmith.com
ACUITY CHS: Court OKs 30-Day Extension of Class Cert Deadlines
--------------------------------------------------------------
In the class action lawsuit captioned as Arbuthnot v. Acuity - CHS,
LLC, Case No. 6:22-cv-00658 (M.D. Fla.), the Hon. Judge Paul G.
Byron entered an order on motion for extension of time to file
class certification.
-- The Court will give the parties a 30-day extension of
class certification deadlines.
-- No other deadlines are extended by this Order, and further
extensions will not be granted absent extraordinary cause.
-- The Court reminds Plaintiff that extensions sought on the
deadline are poor professional practice. The Court further
advises Plaintiff that pending motions do not relieve the
parties of Court-imposed deadlines.
The nature of suit states Other Statutes -- Other Statutory
Actions.[CC]
ADVANCED MOVING: Fails to Pay Laborers' Minimum & OT Wages
----------------------------------------------------------
GUADALUPE GARCIA, on behalf of himself and all other similarly
situated persons, known and unknown, and EDGAR MALDONADO v.
ADVANCED MOVING AND STORAGE, INC. and JAMES LALAGOS, Case No.
1:22-cv-07011 (N.D. Ill., Dec. 13, 2022) sues the Defendants for
failure to pay the Plaintiff and other similarly situated employees
minimum wages and overtime wages during at least the three years
prior to the filing of this lawsuit.
Ms. Garcia also asserts claims for the unlawful deductions made
from the Plaintiffs and other similarly situated employees' wages
without proper authorization, under the Fair Labor Standards Act,
Illinois Minimum Wage Law, and Illinois Wage Payment and Collection
Act.
Accordingly, the Defendants deducted money from other employees'
paychecks for damages allegedly caused by those employees while
moving customers' furniture. The Defendants also deducted money
from the Plaintiffs and other employees' paychecks in certain work
weeks for the cost of the uniforms ("Uniform Deduction"). The
Plaintiffs worked as a laborer for the Defendants. During their
employment, the Plaintiffs were paid $13.00 per hour by the
Defendants for their work, says the suit.
Advanced Moving is a corporation specializing in moving and
storage.[BN]
The Plaintiffs are represented by:
Christopher J. Williams, Esq.
NATIONAL LEGAL ADVOCACY NETWORK
1 N. LaSalle Street, Suite 1275
Chicago, IL 60604
AGGRESSIVE DEVELOPMENTS: Bid to Stay Rushing Suit Granted in Part
-----------------------------------------------------------------
In the lawsuit styled DYLAN RUSHING, individually and on behalf of
all similarly situated individuals, Plaintiff v. AGGRESSIVE
DEVELOPMENTS OF MISSOURI, LLC, a Missouri limited liability
company, McALISTER'S FRANCHISOR SPV LLC, a Delaware limited
liability company, and FOCUS BRANDS LLC, a Delaware limited
liability company, Defendants, Case No. 22-CV-649-SMY (S.D. Ill.),
Judge Staci M. Yandle of the U.S. District Court for the Southern
District of Illinois issued a Memorandum and Order:
-- denying in part and granting in part Defendants McAlister's
Franchisor SPV LLC and Focus Brands, LLC's Motion to Stay;
and
-- taking under advisement the Defendants' Partial Motion to
Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure.
The Plaintiff filed a putative class action Complaint in the
Circuit Court of the Third Judicial Circuit, Madison County,
Illinois, claiming violations of the Illinois Biometric Information
Privacy Act ("BIPA"). Rushing, who was formerly employed by
McAlister's Deli and clocked in and out for work each day utilizing
a biometric timekeeping system, alleges that the Defendants
violated BIPA by collecting and storing his biometric information
without issuing proper notices, obtaining written consent, or
disclosing its retention and by destruction policies. The
Defendants subsequently removed the action to this Court. Defendant
Aggressive Developments of Missouri, LLC, has subsequently been
dismissed from the case.
The Defendants move to stay this case pending resolution of: (1)
Dusty Matheson v. Aggressive Developments Missouri, LLC, No.
2019L51 in the Circuit Court of Macon County, Illinois, Sixth
Judicial Circuit; and, in the alternative, (2) Tims v. Black Horse
Carriers, Inc., No. 1-28-0563 (Ill. App. Ct., 1st Dist.).
Judge Yandle finds that it cannot be said that substantially the
same parties are litigating substantially the same issues in the
instant case and in Dusty Matheson v. Aggressive Developments
Missouri, LLC. First and foremost, there are separate plaintiffs
and defendants in the two cases. It is undisputed that Aggressive
Developments of Missouri, LLC, is the only named defendant in the
state court action and is no longer a party to this case. And the
Defendants here are not parties to the state suit.
Moreover, while parties with nearly identical interests are
considered "substantially the same" for purposes under Colorado
River Water Conservation Dist. V. U.S., 424 U.S. 800, 817-818
(1976), the same cannot be said when the parties are totally
unrelated, Judge Yandle holds. A finding by the state court that
Aggressive Developments of Missouri, LLC, is liable will not
necessarily be determinative of the Defendants' liability in this
case. As such, Dusty Matheson v. Aggressive Developments Missouri,
LLC, and the present action are not parallel proceedings such that
a stay of this action is warranted under Colorado River, Judge
Yandle holds.
Accordingly, Judge Yandle rules that the Defendants' motion seeking
a stay pending resolution of Dusty Matheson v. Aggressive
Developments Missouri, LLC, is denied.
BIPA does not include a limitations period, and no Illinois
Appellate Court has decided the appropriate statute of limitations
for BIPA claims. In that vein, the Defendants contend that the
Court should stay this case pending a decision from the Illinois
Appellate Court in Tims v. Black Horse Carriers, Inc., No.
1-20-0562, which will address the currently unsettled question of
which statute of limitations period applies to BIPA claims.
Because a decision from the Illinois Appellate Court may be binding
as the Illinois Supreme Court has not yet decided the applicable
statute of limitations for BIPA claims, the Court finds it
appropriate to stay this case pending the Tims decision -- which is
fully briefed. Accordingly, the Defendants' motion seeking a Stay
pending resolution of Tims v. Black Horse Carriers, Inc., No.
1-20-0562, is granted.
For these reasons, Judge Yandle rules that the Motion to Stay
Proceedings is denied in part and granted in part; all proceedings,
deadlines, and conferences in this case are stayed pending
resolution of Tims v. Black Horse Carriers, Inc., No. 1-20-0562.
The Defendants' Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) is taken under advisement and will be addressed
upon the lifting of the Stay. The parties are ordered to file a
status report within 14 days of the issuance of a ruling in Tims.
A full-text copy of the Court's Memorandum and Order dated Dec. 5,
2022, is available at https://tinyurl.com/cvakb446 from
Leagle.com.
ALLERGAN PLC: Wins Summary Judgment in Securities Class Action
--------------------------------------------------------------
Cleary Gottlieb represented Allergan plc (Allergan) and several
former and current executives in successfully securing summary
judgment and full dismissal of a securities fraud class action in
the U.S. District Court for the Southern District of New York.
The plaintiff claimed that Allergan and its executives had mislead
investors regarding an alleged increased risk of a rare form of
cancer associated with Allergan's textured breast implants, in
violation of the securities laws. The plaintiff also claimed that
Allergan knew of studies that showed a higher incidence of this
cancer in patients with Allergan's textured implants compared to
implants made by other manufacturers, but nonetheless issued public
statements that downplayed this higher risk.
On December 12, 2022, Judge Colleen McMahon granted Allergan's
motion for summary judgment and so dismissed the plaintiff's case
in its entirety. The court held that the plaintiff had not produced
sufficient evidence to show that there was a genuine issue of
material fact on three of the required elements of a Section 10(b)
claim: falsity, materiality, and loss causation.
First, the court concluded that none of the alleged misstatements
were either literally untrue or misleading in context, given that
the science available at the time of the disclosures had not
concluded that Allergan's textured implants in fact carried an
increased risk of the disease as compared to textured implants
produced by other manufacturers. With respect to two of the four
challenged statements, the court criticized the plaintiff for
making a "'Hail Mary pass' of an argument" that was "arguably bad
faith." Second, the court concluded that the plaintiff had failed
to produce evidence that the disclosures about Allergan's textured
implant business, which constituted less than 1% of Allergan's
total revenues, were material to investors. Finally, on loss
causation, the court said that the plaintiff had produced "not a
scintilla" of evidence showing that the recall of Allergan's
textured implants in December 2018 by a French regulator was driven
by concerns that Allergan's textured breast implants carried a
heightened risk of the disease as compared to other manufacturers'
textured implants.
The court also rejected the plaintiff's attempts to introduce new
or recycled theories of fraud in support of its claims. Even if it
were to consider those improperly raised theories, the court stated
that it would reject them based on the undisputed evidence. The
court concluded that while it had let the case proceed past the
motion to dismiss phase when drawing all inferences in favor of the
plaintiff's theories, following discovery the plaintiff had failed
to produce the required evidence to support its allegations. [GN]
AMICA MUTUAL: Court Allows Dismissal of Merullo Class Suit
----------------------------------------------------------
Judge Denise J. Casper of the U.S. District Court for the District
of Massachusetts allows the Defendant's motion to dismiss the
lawsuit captioned MICHAEL MERULLO, et al., Plaintiffs v. AMICA
MUTUAL INSURANCE COMPANY, Defendant, Case No. 22-cv-10410-DJC (D.
Mass.).
The Plaintiff brings this putative class action against the
Defendant alleging breach of contract (Count I), violations of
Mass. Gen. L. c. 93A and c. 176D (Counts II-VI) and seeking
declaratory judgment (Count VII). Defendant Amica has moved to
dismiss Merullo's complaint for failure to state a claim upon which
relief can be granted, Fed. R. Civ. P. 12(b)(6).
On May 29, 2020, Merullo's vehicle was damaged in a collision with
an Amica-insured driver. The driver was insured under the 2016
edition of the Massachusetts standard auto policy ("2016 Standard
Policy"). Part 4 of the 2016 Standard Policy allows for third-party
recovery of property damage.
Mr. Merullo demanded payment from Amica to repair his vehicle and
for the inherent diminution in value ("IDV") the vehicle suffered
as a result of the accident. IDV is calculated as the difference
between the market value of an automobile immediately before a
collision, and its market value after the collision, even assuming
full repair. Amica refused to provide Merullo any recovery for his
vehicle's IDV.
Mr. Merullo instituted this action in Middlesex Superior Court.
Amica removed the action to this Court, and now moves to dismiss
Merullo's complaint pursuant to Fed. R. Civ. P. 12(b)(6). The Court
heard the parties on the pending motion and took the matter under
advisement.
Judge Casper notes that despite the plain language of the 2016
Standard Policy excluding third-party recovery of IDV damages,
Merullo alleges that Amica is required to pay his IDV. He relies
primarily upon McGilloway v. Safety Ins. Co., 488 Mass. 610, 613
(2021), a recent decision of the Supreme Judicial Court. In
McGilloway, the Supreme Judicial Court considered whether
third-party claimants could recover IDV damages under the 2008
edition of the Massachusetts standard policy ("2008 Standard
Policy").
The Supreme Judicial Court reasoned in McGilloway that "a plain
reading of the phrase 'the amounts that person is legally entitled
to collect for property damage through a court judgment or
settlement' entitles a claimant 'to be made whole and compensated
for what he has lost.'"
Unlike in McGilloway, Part 4 of the 2016 Standard Policy at issue
here, does not include the broader coverage of damages and
explicitly excludes coverage of IDV, Judge Casper holds. The first
sentence of the 2016 Standard Policy limits third-party coverage to
"damage or destruction of tangible property," whereas the 2008
Standard Policy broadly states that third-party coverage includes
paying damages to someone else whose auto or other property is
damaged in an accident, Judge Casper explains. The last sentence of
the 2016 Standard Policy also explicitly excludes third-party
coverage of IDV, stating that the amount Amica will pay does not
include decreased value or intangible loss claimed to result from
property damage unless otherwise required by law.
Moreover, there is no other law that would require Amica to cover
IDV under Part 4 of the 2016 Standard Policy where there exclusion
of same applies "unless otherwise required by law," Judge Casper
holds. The Judge adds that Merullo's reliance upon Mass. Gen. Law
c. 90, Section 34O also does not provide support for his breach of
contract claim.
For all of these reasons, Judge Casper finds that Merullo has
failed to state a plausible claim for breach of contract, Count I.
According to Judge Casper, Mr. Merullo brought five claims all of
which fail to allege that Amica violated Mass. Gen. L. c. 93A,
Section 2, and Mass. Gen. L. c. 176D, Sections 3(9)(c), 3(9)(d),
3(9)(f) and 3(9)(n) for failing to pay his IDV damages. Dismissal
of these claims is warranted here where the Court has concluded
that Amica's interpretation was not only plausible, but also
correct. Merullo, therefore, fails to allege plausibly that Amica
violated Mass. Gen. L. c. 176D, Section 3(9) and, accordingly,
Counts III-VI are dismissed.
Mr. Merullo also asserts a separate claim under Mass. Gen. L. c.
93A Section 2, Count II. The basis of this claim is that the same
as the factual basis for the other claims; that, Amica was required
to pay IDV and failed to do so. Here, where the Court has concluded
that Amica had a legal basis for doing so given the express
language of Part 4 of the 2016 Standard Policy, Amica's failure to
pay same does not rise to the level of an unfair or deceptive act
and, therefore, Merullo, also fails to state a claim that Amica
violated Mass. Gen. L. c. 93A Section 2, Judge Casper opines.
Mr. Merullo also seeks a declaration that he is entitled to
recovery of his IDV damages.
Judge Casper holds that Merullo's declaratory judgment claim fails
on this second step. Here where, for the reasons stated, the Court
concludes that Merullo's underlying claims will be dismissed for
failure to state a claim under Rule 12(b)(6), dismissal of his
claim for declaratory judgment that he is entitled to IDV under
Part 4 of the 2016 Standard Policy is likewise warranted.
A full-text copy of the Court's Memorandum and Order dated Dec. 5,
2022, is available at https://tinyurl.com/455xweyy from
Leagle.com.
ANTHEM MARINE: Winegard Files ADA Suit in E.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Anthem Marine LLC.
The case is styled as Jay Winegard, on behalf of himself and all
others similarly situated v. Anthem Marine LLC, Case No.
1:22-cv-07602 (E.D.N.Y., Dec. 14, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Anthem -- https://www.anthem.am/ -- are the amalgamation of the
best sports boats, cruising boats, performance boats and family
boats folded into one spectacular design.[BN]
The Plaintiff is represented by:
Mitchell Segal, Esq.
LAW OFFICES OF MITCHELL SEGAL P.C.
1129 Northern Boulevard, Suite 404
Manhasset, NY 11030
Phone: (516) 415-0100
Email: msegal@segallegal.com
APPLE INC: Faces Hughes Suit Over Airtag Tracking Device
--------------------------------------------------------
LAUREN HUGHES and JANE DOE, individually and on behalf of all
others similarly situated, Plaintiffs v. APPLE, INC. Defendant,
Case No. 3:22-cv-07668 (N.D. Cal., Dec. 5, 2022) is a class action
against the Defendant for negligence, negligence per se,
intrusion-upon-seclusion, and product liability, unjust enrichment,
and violations of California's constitutional right to privacy,
California's Invasion of Privacy Act, California's Unfair
Competition Law, and New York General Business Law.
According to the complaint, the Defendant released one of the
products that has revolutionized the scope, breadth, and ease of
location-based stalking known as the Apple AirTag. Introduced in
April 2021, this device is roughly the size of a quarter, and its
sole purpose is to transmit its location to its owner. Immediately
after the AirTag's release, and consistently since, reports have
proliferated of people finding AirTags placed in their purses, in
or on their cars, and even sewn into the lining of their clothes,
by stalkers in order to track their whereabouts. The consequences
have been as severe as possible: at least two reported murders have
occurred in which the murderer used an AirTag to track the victim,
alleges the suit.
The Plaintiffs, each of whom are victims of stalking through the
use of an AirTag, bring this action on behalf of themselves and a
class and subclasses of individuals who have been and who are at
risk of stalking via the dangerous product. In a representative
capacity, they seek statutory damages, actual damages, and punitive
damages, as well as injunctive and declaratory relief against
Apple, correcting Apple's practice of releasing an unreasonably
dangerous product into the stream of commerce, misrepresenting the
harms associated therewith, and facilitating the unwanted and
unconsented to location tracking of Plaintiffs and Class members,
the suit says.
Apple Inc. is an American multinational technology company
headquartered in Cupertino, California.[BN]
The Plaintiffs are represented by:
Gillian L. Wade, Esq.
Sara D. Avila, Esq.
Marc A. Castaneda, Esq.
MILSTEIN JACKSON FAIRCHILD & WADE, LLP
10990 Wilshire Blvd., 8th Floor
Los Angeles, CA 90024
Telephone: (310) 396-9600
Facsimile: (310) 396-9635
E-mail: gwade@mjfwlaw.com
savila@mjfwlaw.com
mcastaneda@mjfwlaw.com
- and -
Edwin J. Kilpela, Jr., Esq.
Elizabeth Pollock-Avery, Esq.
Kenneth A. Held, Esq.
LYNCH CARPENTER, LLP
1133 Penn Ave, 5th Floor
Pittsburgh, PA 15222
Telephone: (412) 322-9243
Facsimile: (412) 231-0246
E-mail: ekilpela@lcllp.com
elizabeth@lcllp.com
ken@lcllp.com
- and -
David Slade, Esq.
Brandon Haubert, Esq.
Jessica Hall, Esq.
WH LAW
1 Riverfront Place, Suite 745
North Little Rock, AR 72114
Telephone: (501) 891-6000
Facsimile: (501) 222-3027
E-mail: slade@wh.law
brandon@wh.law
jessica@wh.law
APPLE INC: Macbook Keyboard Settlement Gets Preliminary Court Okay
------------------------------------------------------------------
Ben Demers, writing for Kiplinger, reports that Apple MacBook
owners suffering from faulty keyboards may have an early holiday
present. A $50 million class action lawsuit settlement by Apple has
been given preliminary approval by the presiding federal judge in
California, according to Law360(opens in new tab). Roughly $33m of
that will be assigned to lawsuit class members, who can now look
forward to a payout of up to $395 each.
U.S. District Judge Edward J. Davila said the deal is fair and
reasonable, especially considering the various risks of continuing
litigation that has involved over two years of negotiations and
more than 1 million pages of documents.
Find out if you're among the affected users eligible for a payout.
Apple MacBook Lawsuit: The Context
The class action lawsuits have focused on the widely disliked
butterfly keyboards used on MacBook models in the last decade.
Users complained that the keys tended to exhibit several problems,
according to Apple(opens in new tab)'s own Keyboard Service
Program:
-- Letters or characters repeat unexpectedly
-- Letters or characters do not appear
-- Key(s) feel "sticky" or do not respond in a consistent manner
Apple initially put out an apology to the "small number of users
[who] are having issues with their third-generation butterfly
keyboard", according to MacWorld(opens in new tab). Following two
class action lawsuits launched by affected users in 2018, Apple
then discontinued the design, starting in 2019, and offered
affected users replacement keyboards through their Keyboard Service
Program.
Still, this wasn't enough for many affected users, who continued to
pursue litigation. Judge Davila granted class-action status(opens
in new tab) to one of the plaintiff lawsuits in March 2021. Apple
finally reached a $50 million settlement with plaintiffs (still
subject to the judge's review) in July 2022, as reported by
Reuters(opens in new tab).
Apple Macbook settlement: Payouts
Now that the court has issued preliminary approval, affected class
members can expect the relief. Here's a breakdown of the settlement
tiers, per Law360(opens in new tab).
Group Member Details Maximum Payout
Group 1 Members who received two or more replacements for their
keyboards within four years of purchase. $395
Group 2 Members who received one replacement keyboard from Apple
and attested that the repair did not resolve their keyboard issues.
$125
Group 3 Members who got replacements for their keycaps. $50
If you had an affected keyboard repaired or replaced by Apple, the
company will contact you automatically about your payout. More
information will be shared at the official
KeyboardSettlement.com(opens in new tab) website once it goes live.
[GN]
ARCBEST II INC: Majors Sues Over Failure to Pay Proper Overtime
---------------------------------------------------------------
JOHNNY MAJORS, individually and on behalf of all others similarly
situated, Plaintiff v. ARCBEST II, INC., Case No. 2:22-cv-02185-TLB
(W.D. Ark., Dec. 5, 2022) is a class action brought under the Fair
Labor Standards Act and the Arkansas Minimum Wage Act for
declaratory judgment, monetary damages, liquidated damages,
prejudgment interest, and costs, including reasonable attorneys'
fees, as a result of Defendant's failure to pay Plaintiff and other
hourly-paid employees lawful overtime compensation for hours worked
in excess of 40 hours per week.
The Plaintiff worked for Defendant as an hourly-paid employee in
Defendant's U-Pack department during part of the three years prior
to the filing of the lawsuit.
ArcBest II, Inc. is a shipping and logistics company that provides
trucking and shipping services throughout the United States.[BN]
The Plaintiff is represented by:
Chris Burks, Esq.
Stewart Whaley, Esq.
WH LAW | WE HELP
1 Riverfront Pl. - Suite 745
North Little Rock, AR 72114
Telephone: (501) 891-6000
E-mail: chris@wh.law
stewart@wh.law
ARNOFF MOVING: Argenti Sues Over Unpaid Overtime Wages
------------------------------------------------------
Charles Argenti, individually and on behalf of all others similarly
situated v. ARNOFF MOVING & STORAGE, INC., and MICHAEL ARNOFF, Case
No. 7:22-cv-10540 (S.D.N.Y., Dec. 14, 2022), is brought pursuant to
the Fair Labor Standards Act and the New York Labor Law, alleging
that the Plaintiff is entitled to recover from the Defendants:
unpaid overtime, liquidated damages, civil damages for statutory
wage notice violations, and attorneys' fees and costs.
From February 2020 through August 2021, the Plaintiff worked for
the Defendant five days per week, nine and a half hours per day,
for a total of 45 to 48 hours per week. The Plaintiff did not clock
in or clock out for his shifts for the duration of his employment.
The Plaintiff was not provided with an accurate wage notice upon
his hire. The Plaintiff did not receive accurate wage statements or
pay stubs with each payment he received. On August 2021, the
Plaintiff was terminated in retaliation for his complaints of
unpaid overtime.
On February 2022, the Plaintiff spoke with Mike Servideo, a
previous manager, in order to request a reference letter for
another employment opportunity. During this conversation, Mike
asked the Plaintiff to return to work at the Defendant. The
Plaintiff expressed his concerns about not being paid overtime.
Mike reassured the Plaintiff that he would be fully compensated for
all hours he works. Therefore, the Plaintiff recommenced employment
with the Defendant in February 2022. Defendants failed to provide a
wage notice to the Plaintiff upon his re-hire.
Despite their promises, the Defendant continued with their unlawful
practices and refused to compensate the Plaintiff with overtime pay
when he worked over 40 hours. Additionally, the wage statements /
pay stubs provided to the Plaintiff were inaccurate. Again, the
Plaintiff complained about unlawful practices and respectfully
requested that his overtime premium be paid again. the Defendant
once again refused to pay the Plaintiff's overtime premium. Once
again, the Company retaliated against the Plaintiff by terminating
him for his complaints of improper wage practices on October 2,
2022. The Defendants knowingly and willfully operated their
business with a policy of not paying the Federal or the New York
State overtime rate (time and a-half), says the complaint.
The Plaintiff was employed by the Defendants as a machine rigger.
Arnoff Moving & Storage, Inc. was and is a domestic limited
liability company duly organized and existing under the laws of the
State of New York.[BN]
The Plaintiff is represented by:
Robert D. Salaman, Esq.
AKIN LAW GROUP PLLC
45 Broadway, Suite 1420
New York, NY 10006
Phone: (212) 825-1400
Email: rob@akinlaws.com
ASTRA SPACE: Artery Suit Transferred to N.D. California
-------------------------------------------------------
The case styled as Lorraine A. Artery, Plymouth County Retirement
Association, Christine E. Riley, individually and on behalf of all
others similarly situated v. ASTRA SPACE INC. F/K/A HOLICITY INC.,
CHRIS C. KEMP, KELYN BRANNON, and STEVEN EDNIE, Defendants; JEREMY
BRADBURY, MICHEL VAN OEKEL, MARCOS LUIS MOLINS GARCIA, QINGPING
DENG, CHRISTOPHER F. HOWELL, Movant; Case No. 1:22-cv-00737 was
transferred from the U.S. District Court for the Eastern District
of New York, to the U.S. District Court for the Northern District
of California on Dec. 14, 2022.
The District Court Clerk assigned Case No. 3:22-cv-08875-CRB to the
proceeding.
The nature of suit is stated as Securities/Commodities for
Securities Exchange Act.
Astra -- https://astra.com/ -- is an American launch vehicle
company based in Alameda, California.[BN]
The Plaintiff is represented by:
Phillip Kim, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Phone: (212) 686-1060
Fax: (212) 202-3827
- and -
Thomas Hamilton Burt, Esq.
WOLF HALDENSTEIN ADLER FREEMAN AND HERZ
270 Madison Ave.
New York, NY 10016
Phone: (212) 545-4600
Fax: (212) 545-4653
Email: burt@whafh.com
- and -
J. Alexander Hood, II, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Phone: (212) 661-1100
Fax: (212) 661-8665
Email: ahood@pomlaw.com
The Defendants are represented by:
Jonathan Rotenberg, Esq.
Caroline Sabatier, Esq.
KATTEN MUCHIN ROSENMAN LLP
50 Rockefeller Plaza
New York, NY 10020
Phone: (212) 940-6405
Email: jonathan.rotenberg@katten.com
caroline.sabatier@katten.com
- and -
Bruce G. Vanyo, Esq.
Paul Satoshi Yong, Esq.
KATTEN MUCHIN ROSENMAN LLP
2029 Century Park East, Suite 2600
Los Angeles, CA 90067-3012
Phone: (310) 788-4400
Email: bruce@katten.com
paul.yong@katten.com
The Movants are represented by:
Gregory B. Linkh, Esq.
GLANCY PRONGAY & MURRAY LLP
230 Park Ave., Suite 358
New York, NY 10169
Phone: (212) 682-5340
Email: glinkh@glancylaw.com
- and -
Adam Apton, Esq.
LEVI & KORSINSKY LLP
55 Broadway, 10th Floor
New York, NY 10006
Phone: (202) 524-4290
Fax: (202) 333-2121
Email: aapton@zlk.com
- and -
Jacob A. Goldberg, Esq.
THE ROSEN LAW FIRM, P.A.
101 Greenwood Avenue, Ste. 440
Jenkintown, PA 19046
Phone: (215) 600-2817
Email: jgoldberg@rosenlegal.com
- and -
Jeremy Alan Lieberman, Esq.
Tamar A. Weinrib, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Phone: (212) 661-1100
Fax: (212) 661-8665
Email: jalieberman@pomlaw.com
taweinrib@pomlaw.com
- and -
Jennifer Pafiti, Esq.
POMERANTZ LLP
1100 Glendon Avenue, 15th Floor
Los Angeles, CA 90024
Phone: (310) 405-7190
Email: jpafiti@pomlaw.com
- and -
David Avi Rosenfeld, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP(LI)
58 South Service Road, Suite 200
Melville, NY 11747
Phone: (631) 367-7100
Fax: (631) 367-1173
Email: drosenfeld@rgrdlaw.com
ASTRA SPACE: Riley Suit Transferred to N.D. California
------------------------------------------------------
The case styled as Christine E. Riley, individually and on behalf
of all others similarly situated v. ASTRA SPACE INC., CHRIS C.
KEMP, KELYN BRANNON, and STEVEN EDNIE, Defendants; QINGPING DENG,
Movant; Case No. 1:22-cv-01591 was transferred from the U.S.
District Court for the Eastern District of New York, to the U.S.
District Court for the Northern District of California on Dec. 14,
2022.
The District Court Clerk assigned Case No. 3:22-cv-08876-CRB to the
proceeding.
The nature of suit is stated as Securities/Commodities for
Securities Exchange Act.
Astra -- https://astra.com/ -- is an American launch vehicle
company based in Alameda, California.[BN]
The Plaintiff is represented by:
J. Alexander Hood, II, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Phone: (212) 661-1100
Fax: (212) 661-8665
Email: ahood@pomlaw.com
- and -
Tamar A. Weinrib, Esq.
Thomas Henry Przybylowski, Esq.
Jeremy Alan Lieberman, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Phone: (212) 661-1100
Fax: (212) 661-8665
Email: taweinrib@pomlaw.com
tprzybylowski@pomlaw.com
jalieberman@pomlaw.com
The Defendants are represented by:
Jonathan Rotenberg, Esq.
Caroline Sabatier, Esq.
KATTEN MUCHIN ROSENMAN LLP
50 Rockefeller Plaza
New York, NY 10020
Phone: (212) 940-6405
Email: jonathan.rotenberg@katten.com
caroline.sabatier@katten.com
- and -
Bruce G. Vanyo, Esq.
Paul Satoshi Yong, Esq.
KATTEN MUCHIN ROSENMAN LLP
2029 Century Park East, Suite 2600
Los Angeles, CA 90067-3012
Phone: (310) 788-4400
Email: bruce@katten.com
paul.yong@katten.com
The Movant is represented by:
Tamar A. Weinrib, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Phone: (212) 661-1100
Fax: (212) 661-8665
Email: taweinrib@pomlaw.com
AWP INC: Fails to Pay Proper Wages to Flaggers, Harris Claims
-------------------------------------------------------------
STEPHANIE HARRIS, on behalf of herself and others similarly
situated, Plaintiff v. AWP, INC., d/b/a Area Wide Protective,
Defendant, Case No. 1:22-cv-01570-UNA (D. Del., Dec. 5, 2022) seeks
all available relief under the Fair Labor Standards Act due to the
Defendant's failure to pay Plaintiff and other collective members
compensation for some of their hours worked over 40 per week.
The Plaintiff was employed by the Defendant as a flagger during the
three-year period relevant to this lawsuit.
AWP, Inc. provides traffic management services.[BN]
The Plaintiff is represented by:
Daniel C. Herr, Esq.
LAW OFFICE OF DANIEL C. HERR LLC
1225 North King Street Suite 1000 (10th Floor)
Wilmington, DE 19801
Telephone: (302) 483-7060
E-mail: dherr@dherrlaw.com
- and -
Deirdre Aaron, Esq.
WINEBRAKE & SANTILLO, LLC
715 Twining Road, Suite 211
Dresher, PA 19025
Telephone: (215) 884-2491
E-mail: daaron@winebrakelaw.com
BOSTON BEER: New York Judge Dismisses Securities Class Action
-------------------------------------------------------------
Shearman & Sterling disclosed that on December 5, 2022, Judge
Denise Cote of the United States District Court for the Southern
District of New York dismissed a putative class action asserting
claims under the Securities Exchange Act of 1934 against an
alcoholic beverage manufacturer and certain of its executives.
Siegel v. Boston Beer Co., Inc., 2022 WL 17417111 (S.D.N.Y. Dec. 5,
2022). Plaintiff alleged that the company made misleading
statements related to the performance of the company's products in
the hard seltzer market as the pandemic subsided and consumers
returned to bars and restaurants. The Court assessed three
categories of alleged misstatements and held that none was
actionable.
First, the Court assessed April 2021 statements in the company's
SEC filing, press release, and earnings call regarding the
company's growth prospects. Id. at *4. The Court concluded that
most of the statements—containing language such as "the Company
believes," "[w]e still think the category is going to grow
significantly," and "[w]e are optimistic" -- were non-actionable
because they were either statements of opinion or forward-looking
statements accompanied by meaningful cautionary language. Id. at
*5-7.
The Court further concluded that, although several April 2021
statements "arguably contain[ed] embedded factual representations"
-- including that the hard-seltzer category was "fast-growing" and
how many weeks of inventory the company "believe[d]" distributors
had on hand -- plaintiff nevertheless failed to adequately allege
that those statements were false or misleading. Id. at *7.
Plaintiff had argued that the market was slowing at the time and
that inventory levels were inflated by alleged "channel stuffing,"
but the Court explained that plaintiff made only "conclusory
characterizations" regarding growth rates and that the "channel
stuffing" allegation did not suggest that the company's statement
regarding inventory levels was false. Id. at *7-8. Finally, the
Court rejected plaintiff's argument that the company omitted
material information regarding alleged flaws in its demand
forecasting system, concluding that plaintiff failed to allege
either an independent duty to disclose such information or that
disclosure was necessary to prevent a challenged statement from
being misleading. Id. at *8.
Second, the Court assessed statements allegedly made by the
chairman of the company's Board of Directors at a beverage forum in
May 2021, including that "I think our best guesses now are
somewhere between 60 and 90 percent [growth]" and "I think this is
the year for acceptance of hard seltzer on-premise." Id. at *9. The
Court emphasized that the challenged statements were
"quintessential statements of opinion about the future," in the
context of a panel discussion in which the chairman was asked "to
make predictions about the hard seltzer market as the country
emerged from the pandemic and consumers returned to bars." Id. at
*10. The Court therefore held that these statements were generally
non-actionable because plaintiff failed to allege that the
statements contained inaccurate factual information or that they
were made with knowledge of their falsity. Id. The Court further
noted that one challenged statement -- that the company's product
had "been gaining share for, like, a year and a half" -- was
potentially actionable because plaintiff alleged that there had
been no change in market share during an 18-month period. However,
the Court rejected this allegation after determining that the data
relied on by plaintiff related to a broader period and that another
source relied on by plaintiff showed that the product's market
share had indeed been growing during the period in question. Id.
Third, the Court assessed a statement by the company's CEO in a
June 2021 industry publication. The CEO was quoted as stating that
the company was "still confident in [its hard seltzer product's]
ability to grow significantly despite the recent segment slowdown"
and that the product "is the only established player that's growing
at high double digits, growing at double the segment." Id. The
Court held that the statement regarding the company's "confidence"
was "an expression of general corporate optimism and is not
actionable." Id. The Court further held that plaintiff failed to
adequately allege that the statement regarding the product's growth
rate was false. Although plaintiff pointed to a subsequent
statement by the CEO referencing a "low double-digit growth rate,"
the Court concluded that the subsequent statement related to the
hard seltzer category and not specifically to the company's
product, which was the subject of the challenged statement. Id. at
*10-11.
Finally, the Court rejected plaintiff's request for leave to amend,
concluding that amendment would be futile because plaintiff had not
identified how further amendment would cure the deficiencies the
Court identified. Id. at *11. [GN]
BRICK ARMORY GROUP: Fagnani Files ADA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against The Brick Armory
Group LLC. The case is styled as Mykayla Fagnani, on behalf of
herself and all other persons similarly situated v. The Brick
Armory Group LLC, Case No. 1:22-cv-10579 (S.D.N.Y., Dec. 14,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Brick Armory -- https://thebrickarmory.com/ -- is an online
retailer providing competitive prices on Army related sets.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: nyjg@aol.com
michael@gottlieb.legal
BRISTOL BAY: Bid for Class Certification in Awmagan Suit Denied
---------------------------------------------------------------
In the case, Awmagan, et al., Plaintiffs v. Bristol Bay Native
Corp., et al., Defendants, Case No. 18cv1700-JO-AGS (S.D. Cal.),
Judge Jinsook Ohto of the U.S. District Court for the Southern
District of California denies the Plaintiffs' motion for class
certification.
The Plaintiffs filed a motion to certify a class action for their
Fair Labor Standards Act and breach of contract claims. The Court
held oral argument on the motion on Dec. 14, 2022.
For the reasons stated on the record during the oral argument,
Judge Ohto denies the motion for class certification. She stays the
action for 30 days. The Plaintiffs will file a one-page Statement
of Intent or a Notice of Voluntary Dismissal by Jan. 13, 2023.
A full-text copy of the Court's Dec. 14, 2022 Order is available at
https://tinyurl.com/mryu23p7 from Leagle.com.
BUCHANAN AUTOMOTIVE: Bid for More Time to File Class Cert OK'd
--------------------------------------------------------------
In the class action lawsuit captioned as KEVIN KENNEDY, on behalf
of himself and all others similarly situated, v. BUCHANAN
AUTOMOTIVE, INC., Case No. 1:22-cv-01864-MCC (M.D. Pa.), the Hon.
Judge entered an order granting the unopposed motion of the
Plaintiff for Enlargement of Time to File Motion for Class
Certification.
The Plaintiff shall file his Motion for Class Certification on a
date to be determined by this Court and set forth in any
forthcoming Case Management Order issued by this Court.
A copy of the Court's order dated Dec. 13, 2022 is available from
PacerMonitor.com at https://bit.ly/3BDPbMC at no extra charge.[CC]
BUCHANAN AUTOMOTIVE: Kennedy Seeks More Time to File Class Cert.
----------------------------------------------------------------
In the class action lawsuit captioned as KEVIN KENNEDY, on behalf
of himself and all others similarly situated v. BUCHANAN
AUTOMOTIVE, INC., Case No. 1:22-cv-01864-MCC (M.D. Pa.), the
Plaintiff asks the Court to enter an order granting his motion for
enlargement of time to file his motion for class certification and
order that Plaintiff files his Motion for Class Certification on a
date to be determined by this Honorable Court and set forth in any
case management order after the completion of the Initial Case
Management Conference.
On November 23, 2022, the Plaintiff commenced this civil action by
filing his Class Action Complaint.
Pursuant to L.R. 23.3, as Plaintiff filed his Class Action
Complaint in this matter on November 23, 2022, his Motion for Class
Certification is due to be filed on February 21, 2023.
Since Plaintiff filed his Class Action Complaint, Defendant waived
service, making Defendant's answer or a responsive pleading due
January 23, 2023. Counsel for Defendant has not yet entered an
appearance.
A copy of the Plaintiff's motion dated Dec. 12, 2022 is available
from PacerMonitor.com at https://bit.ly/3PrXReH at no extra
charge.[CC]
The Plaintiff is represented by:
Eric H. Weitz, Esq.
Max S. Morgan, Esq.
THE WEITZ FIRM, LLC
1515 Market Street, #1100
Philadelphia, PA 19102
Tel: (267) 587-6240
Fax: (215) 689-0875
E-mail: eric.weitz@theweitzfirm.com
max.morgan@theweitzfirm.com
The Defendant is represented by:
Devin J. Chawstyk, Esq.
Barbara Darkes, Esq.
MCNEES WALLACE & NURICK, LLC
100 Pine Street
Harrisburg, PA 17101 US
E-mail: DChwastyk@mcneeslaw.com
BDarkes@mcneeslaw.com
BUILD.COM INC: Garcia Suit Removed to S.D. California
-----------------------------------------------------
The case styled as Silvia Garcia, individually and on behalf of all
others similarly situated v. Build.com, Inc., Does 1 through 10,
inclusive, was removed to the U.S. District Court for the Southern
District of California on Dec. 14, 2022.
The District Court Clerk assigned Case No. 3:22-cv-01985-DMS-KSC to
the proceeding.
The nature suit is stated as Other Contract.
Build.com -- https://www.build.com/ -- is an online home
improvement retailer and subsidiary of Ferguson PLC. It sells
bathroom, kitchen and lighting hardware, appliances and other
supplies.[BN]
The Plaintiff is represented by:
Scott J. Ferrell, Esq.
Victoria C. Knowles, Esq.
PACIFIC TRIAL ATTORNEYS APC
4100 Newport Place Drive Suite 800
Newport Beach, CA 92660
Phone: (949) 706-6464
Fax: (949) 706-6469
Email: sferrell@pacifictrialattorneys.com
vknowles@pacifictrialattorneys.com
The Defendants are represented by:
John Joseph Rice, Esq.
Kyle William Nageotte, Esq.
HIGGS FLETCHER & MACK LLP
401 West A Street, Suite 2600
San Diego, CA 92101
Phone: (619) 236-1551
Fax: (619) 696-1410
Email: ricej@higgslaw.com
nageottek@higgslaw.com
C. R. BARD: PMC Seeks to Seal Miravete's Expert Report
------------------------------------------------------
In the class action lawsuit captioned as NORTH BREVARD COUNTY
HOSPITAL DISTRICT D/B/A PARRISH MEDICAL CENTER, v. C. R. BARD,
INC.; BARD ACCESS SYSTEMS, INC., Case No. 2:22-cv-00144-RJS-JCB (D.
Utah), the Plaintiff Parrish Medical Center moves the Court to seal
the Initial Class Expert Report of Dr. Eugenio Miravete filed in
support of its Motion for Class Certification.
The Plaintiff seeks leave to file under seal certain Defendant data
and documents designated by them as "CONFIDENTIAL" to be protected
from public disclosure by the Protective Order entered in this
matter.
The confidential information is provided in support of Plaintiff's
Renewed Motion for Class Certification filed this date. The
Defendants do not oppose the relief requested.
C. R. Bard designs, manufactures, packages, distributes, and sells
medical, surgical, diagnostic, and patient care devices.
A copy of the Plaintiff's motion dated Dec. 12, 2022 is available
from PacerMonitor.com at https://bit.ly/3FvbTI7 at no extra
charge.[CC]
The Plaintiff is represented by:
Brent O. Hatch, Esq.
HATCH LAW GROUP, PC
22 East 100 South, Suite 400
Salt Lake City, UT 84111
Telephone: (801) 869-1919
E-mail: hatch@hatchpc.com
- and -
Stephen Berry, Esq.
BERRY LAW PLLC
1100 Connecticut Avenue, NW, Suite 645
Washington, D.C. 20036
Telephone: (202) 296-1212
E-mail: sberry@berrylawpllc.com
- and -
Velvel (Devin) Freedman, Esq.
Edward Normand, Esq.
FREEDMAN NORMAND
FRIEDLAND LLP
99 Park Avenue, Suite 1910
New York, NY 10016
Telephone: (646) 350-0527
Facsimile: (646) 392-8842
E-mail: vel@fnf.law
tnormand@fnf.law
- and -
Christopher V. Fenlon, Esq.
HINCKLEY ALLEN & SNYDER LLP
30 South Pearl Street, Suite 901
Albany, NY 12207
Telephone: (518) 396-3100
Facsimile: (518) 396-3101
E-mail: cfenlon@hinckleyallen.com
C. R. BARD: Renewed Bid for Class Certification Filed
-----------------------------------------------------
In the class action lawsuit captioned as NORTH BREVARD COUNTY
HOSPITAL DISTRICT D/B/A PARRISH MEDICAL CENTER, v. C. R. BARD INC.
and BARD ACCESS SYSTEMS, INC., Case No. 2:22-cv-00144-RJS-JCB (D.
Utah), the Plaintiff asks the Court to enter an order certifying
the proposed Classes pursuant to Fed. R. Civ. P. 23(b)(3) and
23(b)(2) and appointing their counsel as counsel to the Classes.
The Plaintiff seeks certification of a damage class pursuant to
Fed. R. Civ. P. 23(a), 23(b)(3) and 23(c) consisting of:
"U.S. direct purchasers from Bard of its peripherally
inserted central catheters ("PICCs") on or after March 31,
2016."
Purchasers include in part hospitals, hospital systems, and
clinics.
The Plaintiff also asks the Court to certify an injunctive class of
the same purchasers under Fed. R. Civ. P. 23(b)(2).
The Plaintiff alleges that U.S. purchasers of PICC catheters from
Defendants, C.R. Bard, Inc. and Bard Access Systems, Inc., during
the Class Period have paid abovecompetitive prices because of
Bard's unlawful monopolization from tying the sales of its
market-leading tip-location systems to its sales of PICCs.
This tying has suppressed price competition for the sale of Bard
PICCs, allowed it to charge the proposed Class members monopoly
prices during the Class Period, and restricted consumer choice.
Bard's monopolization has prevented Bard's PICC competitors from
gaining sufficient market shares in the PICC market to bid Bard's
monopoly pricing down to competitive levels.
Parrish Medical Center has selected and retained Hatch Law Group,
PC, Berry Law PLLC, and Freedman Normand Friedland LLP as counsel
for the proposed Class. The firms have extensive experience in
successfully prosecuting class actions, antitrust actions, and
complex actions.
The court found that the class pricing regression methodology
explained 90% of the variance among titles' pricing. The court
added that "an abstract argument that each transaction is 'unique'
or that some number of class members made very few purchases does
not cast doubt on the model.
C. R. Bard designs, manufactures, packages, distributes, and sells
medical, surgical, diagnostic, and patient care devices.
A copy of the Plaintiff's motion to certify classes dated Dec. 12,
2022 is available from PacerMonitor.com at https://bit.ly/3FOGfGW
at no extra charge.[CC]
The Plaintiff is represented by:
Brent O. Hatch, Esq.
HATCH LAW GROUP, PC
22 East 100 South, Suite 400
Salt Lake City, UT 84111
Telephone: (801) 869-1919
E-mail: hatch@hatchpc.com
- and -
Stephen Berry, Esq.
BERRY LAW PLLC
1100 Connecticut Avenue, NW, Suite 645
Washington, D.C. 20036
Telephone: (202) 296-1212
E-mail: sberry@berrylawpllc.com
- and -
Velvel (Devin) Freedman, Esq.
Edward Normand, Esq.
FREEDMAN NORMAND
FRIEDLAND LLP
99 Park Avenue, Suite 1910
New York, NY 10016
Telephone: (646) 350-0527
Facsimile: (646) 392-8842
E-mail: vel@fnf.law
tnormand@fnf.law
- and -
Christopher V. Fenlon, Esq.
HINCKLEY ALLEN & SNYDER LLP
30 South Pearl Street, Suite 901
Albany, NY 12207
Telephone: (518) 396-3100
Facsimile: (518) 396-3101
E-mail: cfenlon@hinckleyallen.com
CERTAIN UNDERWRITERS: Beazley Wins Summary Judgment in FICO Suit
----------------------------------------------------------------
In the case, Fair Isaac Corporation, Plaintiff v. Certain
Underwriters at Lloyd's, London Subscribing to Beazley AFB Media
Tech Policy Number W100FC171201, Syndicates 2623 and 623,
Defendant, File No. 21-cv-734 (ECF/JFD) (D. Minn.), Judge Eric C.
Tostrud of the U.S. District Court for the District of Minnesota:
a. grants Beazley's motion for summary judgment, and
b. denies Fair Isaac Corp. ("FICO")'s motion for summary
judgment.
FICO filed this coverage action to enforce its rights under a
liability policy issued by Defendant Certain Underwriters at
Lloyd's, London Subscribing to Beazley. FICO claims Beazley has
breached its duty to defend FICO against claims of "product
disparagement" in consolidated class-action lawsuits pending in the
U.S. District Court for the Northern District of Illinois.
FICO seeks monetary and declaratory relief, along with attorneys'
fees it has incurred in enforcing its rights in this lawsuit.
Beazley argues that the consolidated lawsuits are not covered under
the policy and, alternatively, that three coverage exclusions
apply.
FICO is a Delaware corporation with its principal place of business
in San Jose, California. It developed the first-ever credit scoring
model in 1958, which potential creditors now use for loan
origination, account management, and prescreening. Beazley is a
group of insurance companies with their principal places of
business in London, England. It contracted with FICO to provide
liability insurance for a policy period of Nov. 12, 2017, to Nov.
12, 2018, under an AFB Media Tech(R) policy bearing policy number
W100FC171201. The Policy carries an "Aggregate Limit of Liability"
of $15 million and retention of $2 million for each "Claim." Policy
Declarations, Items 3-4, Sections VII-VIII.
The action concerns the Policy's "Multimedia and Advertising
Liability" coverage provision, under which Beazley agreed to pay on
FICO's behalf. Under the Policy's "Defense and Settlement of
Claims" provision, Beazley agreed to defend FICO against "any Claim
seeking Damages payable under the terms of this Policy, even if any
of the allegations of the Claim are groundless, false or
fraudulent" and against "any Claim in the form of a civil suit that
seeks injunctive relief for one or more of the acts listed in
Insuring Agreement F."
Implicated are three of the Policy's coverage exclusions: Exclusion
K ("Antitrust Exclusion"), Exclusion L ("Consumer Protection Law
Exclusion"), and a Fair Isaac Prior and Pending Litigation
Exclusion Endorsement. The Fair Isaac Prior and Pending Litigation
Exclusion Endorsement amended the Policy's exclusions by removing
coverage for "any Claim or Loss, arising out of or resulting
directly or indirectly from or in consequence of, or in any way
involving: 1. any prior or pending litigation as of 12:01 a.m.
Local Time on 12 November 2006, including but not limited to the
Fair Isaac v. Equifax, et al. litigation (U.S.D.C. Minn.), and
including any cross claims, counter-claims or any other claims or
litigation arising out of, relating to or made in response to the
Fair Isaac v. Equifax, et al. claim, whether made before or after
the inception date; 2. any fact, circumstance, situation,
transaction or event underlying or alleged in such claim or
litigation, regardless of the legal theory upon which such claim is
predicated.
The Prior and Pending Litigation Exclusion Endorsement refers to
the first of three lawsuits that set the stage for this dispute. In
2006, FICO lodged claims of false advertising, antitrust, and
unfair competition against Equifax, TransUnion, and Experian
("Credit Bureaus"), and claimed that VantageScore -- a competing
credit-scoring system and joint venture of the Credit Bureaus --
infringed on FICO's trademarks -- Fair Isaac Corp., et al. v.
Equifax, Inc., No. 06-cv-4112 (ADM/JSM) (D. Minn. Nov. 10, 2008).
The Credit Bureaus counterclaimed, later prevailing at trial and on
appeal to the Eighth Circuit on claims that FICO procured a
trademark by making fraudulent misrepresentations to the U.S.
Patent and Trademark Office.
The second stage-setting lawsuit began in November 2017, when FICO
sued TransUnion in the U.S. District Court for the Northern
District of Illinois. FICO alleged that TransUnion committed breach
of contract, copyright infringement, conversion, and unjust
enrichment through unauthorized use of FICO's proprietary
algorithms and credit-scoring software -- Fair Isaac Corp. v. Trans
Union LLC, No. 17-cv-8318 (N.D. Ill. Nov. 16, 2017). TransUnion
counterclaimed, asserting various causes of action, including
antitrust claims, breach of contract, and claims for violating
state statutes.
The gist of TransUnion's counter-claims was that FICO, for over a
decade, behaved anti-competitively to "discourage the adoption of
VantageScore and preserve its own monopoly" in the credit-scoring
market. TransUnion alleged that FICO's "campaign" against
VantageScore started with the Equifax Litigation, where its claims
were "meritless," designed to "dissolve" VantageScore, and "seen by
a substantial number of businesses and consumers in California and
Illinois." It claims were settled, and the case was voluntarily
dismissed in September 2020.
Last are the series of lawsuits spawning this litigation -- the
lawsuits for which FICO now seeks coverage. Between April and
August 2020, ten putative class actions were filed against FICO in
the U.S. District Court for the Northern District of Illinois
("Underlying Lawsuits"). The plaintiffs are purchasers of FICO
credit scores—lenders, financial institutions, and other
entities—who allege that FICO charged monopolistic prices by
engaging in various anticompetitive conduct. Each suit advanced
some combination of claims for violations of the Sherman Act, state
antitrust laws, state consumer protection laws, and unjust
enrichment.
District Judge Edmond E. Chang consolidated the Underlying
Lawsuits, appointed interim counsel for two groups of
plaintiffs—"direct purchasers" and "indirect purchasers" -- and
ordered each group of plaintiffs to file a consolidated
class-action complaint -- In Re FICO Antitrust Litig., No.
1:20-cv-2114 (N.D. Ill.) ("Consolidated Actions"). Each has now
done so and asserts substantially similar claims for violations of
the Sherman Act, state antitrust laws, and state unfair and
deceptive trade practices laws against FICO, but also against the
Credit Bureaus. The indirect-purchaser plaintiffs also assert
unjust enrichment claims.
The consolidated complaints repeat allegations of FICO's
"decadeslong campaign of anticompetitive conduct" to undermine
VantageScore and preserve FICO's monopoly, but also allege that
FICO conspired with the Credit Bureaus "to monopolize the B2B
Credit Score Market, despite their own interest in VantageScore's
success." FICO charged monopoly prices, the plaintiffs allege, by
entering anticompetitive contracts with the Credit Bureaus that
forbid them from marketing non-FICO credit scores, that charged
exorbitant prices for FICO credit-scoring services, and that
eliminated price competition between the Credit Bureaus.
Beyond this conspiracy, the plaintiffs also allege that FICO "waged
an aggressive public relations and advertising campaign" to steer
consumers away from VantageScore. The Consolidated Actions remain
pending. FICO and the Credit Bureaus have each moved to dismiss the
case for failure to state a claim, and those motions remain under
advisement.
After denying coverage at first, Beazley agreed to defend FICO in
the TransUnion Action. Despite similarities to the TransUnion
Action, Beazley has denied coverage for the Underlying Lawsuits and
Consolidated Actions.
FICO filed suit originally in Minnesota state district court, and
Beazley timely removed based on diversity jurisdiction under 28
U.S.C. Section 1332. In Count One of its three-count Complaint,
FICO alleges that Beazley has breached its duty to defend under the
Policy by declining to defend against the Underlying Lawsuits. In
Counts Two and Three, FICO seeks a judgment declaring Beazley's
duties to defend and indemnify FICO in the Underlying Lawsuits
(now, the Consolidated Actions).
Each side has moved for summary judgment to enforce the policy in
its favor. The parties agree that there are no material facts in
dispute and that coverage turns on policy interpretation.
FICO maintains that Beazley's duty to defend has been triggered by
allegations of "product disparagement" in the Underlying Lawsuits
and Consolidated Action, and it seeks "partial" summary judgment
declaring that (1) Beazley owes it a defense in the Consolidated
Actions and (2) because Beazley has breached its duty to defend,
FICO has a right to recover attorneys' fees incurred in this
lawsuit. Beazley seeks a summary-judgment ruling that FICO is not
entitled to coverage, either because allegations in the
Consolidated Actions do not trigger coverage or because one of
three exclusions applies.
First, Judge Tostrud determines whether, given their relatedness,
the Consolidated Actions and Fair Isaac Corp. v. Trans Union LLC,
No. 17-cv-8318 (N.D. Ill. Nov. 16, 2017) form a "single Claim"
under the Policy and, if so, what that means for analyzing
Beazley's duty to defend the Consolidated Actions. He opines that
FICO cites no authority construing a similar related-claims term to
mandate coverage for all later claims deemed "related" to an
earlier, covered claim, and this case is no different. The Policy
specifies that related Claims are considered a single Claim
"irrespective of the number of claimants or Insureds involved" and
will be "deemed to have been made at the time of the first such
Claim."
Under a reasonable construction of the Policy, Beazley's decision
to defend the TransUnion Action, paired with its treatment of the
Consolidated Actions as a "single Claim" under Section VI.F, cannot
alone create a duty to defend the Consolidated Actions. FICO's
claim to a defense in the Consolidated Actions must be considered
independent of its earlier claim for coverage in the TransUnion
Action. Beazley's duty to defend turns on whether the allegations
in the Underlying Lawsuits and Consolidated Actions "suggest a
reasonable possibility of coverage" -- and not on allegations in
the TransUnion Action.
Next, Judge Tostrud examines whether FICO has made a prima facie
showing of coverage. FICO asserts that Beazley's duty to defend was
triggered by allegations of "product disparagement" in the
Underlying Lawsuits. For Beazley's part, the weight of persuasive
authorities has found no duty to defend under like circumstances.
Judge Tostrud holds that the Multimedia and Advertising Liability
coverage does not limit coverage for product disparagement to
claims by those whose own product has been disparaged; it covers
those facing monetary liability "resulting from any Claim for one
or more of enumerated acts," including product disparagement. He
says insurers can and do specify that product-disparagement or
similar coverage is limited to claims "brought by a person or
organization that claims to have been slandered or libeled, or that
claims to have had its goods, products or services disparaged."
Thus, as FICO points out, reading such a limitation into the
Policy's Multimedia and Advertising Liability coverage would seem
to violate the well-settled rule that coverage ambiguities are
resolved against the insurer.
Regardless, Judge Tostrud opines that Beazley has met its burden to
show that FICO's claim is excluded. Beazley has shown at least that
the Policy's Antitrust and Consumer Protection Law Exclusions
apply. In short, Beazley has shown that the Policy unambiguously
excludes coverage for FICO's claim to a defense in the Consolidated
Actions. In view of this result, it is unnecessary to consider the
applicability of the Policy's Prior and Pending Litigation
Exclusion Endorsement.
Finally, Beazley argues that with no duty to defend, it
"necessarily has no duty to indemnify," making summary judgment
appropriate with respect to this entire action. FICO argues that
summary judgment as to Beazley's duty to indemnify is not ripe.
Judge Tostrud holds that the problem for FICO, as evidenced by the
cases it relies on, is that reason to defer deciding an insured's
duty to indemnify only exists when its duty to defend has been
triggered. In a case such as this, "when 'there is no duty to
defend, there also is no corresponding duty to indemnify.'"
Accordingly, summary judgment will be inclusive of FICO's claims
for indemnification. That judgment will not prejudice its ability
to enforce its rights should circumstances in the Consolidated
Actions materially change such that a reasonable possibility of
coverage arises.
Therefore, based on the foregoing, Judge Tostrud denies the
Plaintiff's Motion for Partial Summary Judgment on the Defendant's
Breach of its Duty to Defend, and grants the Defendant's Motion for
Summary Judgment.
A full-text copy of the Court's Dec. 14, 2022 Opinion & Order is
available at https://tinyurl.com/2db6bbb9 from Leagle.com.
Rikke A. Dierssen-Morice -- rikke.morice@maslon.com -- Bryan R.
Freeman -- bryan.freeman@maslon.com -- and Judah Druck --
judah.druck@maslon.com -- Maslon LLP, Minneapolis, MN, for
Plaintiff Fair Isaac Corporation.
Kevin Kieffer -- kevin.kieffer@troutman.com -- Ryan C. Tuley --
ryan.tuley@troutman.com -- and James A. Hazlehurst --
james.hazlehurst@troutman.com -- Troutman Pepper Hamilton Sanders
LLP, Irvine, CA; and Armeen Mistry Shroff --
armeen.shroff@troutman.com -- Troutman Pepper Hamilton Sanders LLP,
Southfield, MI, for Defendant Certain Underwriters at Lloyd's,
London Subscribing to Beazley AFB Media Tech Policy Number
W100FC171201, Syndicates 2623 and 623.
CHAMPION PERSONAL: Petit Sues Over Failure to Pay Proper Wages
--------------------------------------------------------------
Guilhem Petit, and other similarly situated aggrieved employees
with v. CHAMPION PERSONAL SERVICES LLC; YASMEEN ORTIZ; and DOES 1
to 25, inclusive, Case No. 22STCV38912 (Cal. Super. Ct., Los
Angeles Cty., Dec. 14, 2022), is brought against the Defendant who
has violated numerous Labor Code Sections by failing to pay the
Plaintiff with the proper wages.
The Defendants did not provide Plaintiff and other aggrieved
employees with the minimum wages to which they were entitled for
work performed "off the clock", pursuant to California Labor Code.
Due to the above "off the clock" and rounding violations as alluded
to above in addition to overall company policy, CHAMPION also
violated Labor Code because it failed to pay the Plaintiff and
other similarly situated aggrieved employees overtime, even though
they worked more than 8 hours per day, 12 hours per day, and/or 40
hours per week throughout their employment, says the complaint.
The Plaintiff initially started working for CHAMPION on or around
2020 as a security guard.
CHAMPION PERSONAL SERVICES LLC and was a California corporation,
doing business in Los Angeles County, California.[BN]
The Plaintiff is represented by:
Harout Messrelian, Esq.
MESSRELIAN LAW INC.
500 N. Central Ave., Suite 840
Glendale, CA 91203
Phone: (818) 484-6531
Facsimile: (818)956-1983
Email: hm@messrelianlaw.com
pleadings@messrelianlaw.com
CHARLES RO MANUFACTURING: Jackson Files ADA Suit in S.D. New York
-----------------------------------------------------------------
A class action lawsuit has been filed against Charles Ro
Manufacturing Co. Inc. case is styled as Sylinia Jackson, on behalf
of herself and all other persons similarly situated v. Charles Ro
Manufacturing Co. Inc., Case No. 1:22-cv-10582 (S.D.N.Y., Dec. 14,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Charles Ro -- https://charlesro.com/ -- is proud to be the world's
largest Lionel dealer who offer an unmatched selection and
knowledge of Lionel Products.[BN]
The Plaintiff is represented by:
Dana Lauren Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (917) 796-7437
Fax: (212) 982-6284
Email: danalgottlieb@aol.com
CHIPOTLE MEXICAN: McMahon Seeks Filing of Class Cert Under Seal
----------------------------------------------------------------
In the class action lawsuit captioned as BRIDGET MCMAHON and JAMES
RICE, on behalf of themselves and all others similarly situated, v.
CHIPOTLE MEXICAN GRILL, INC., t/d/b/a CHIPOTLE, Case No.
2:20-cv-01448-WSS (W.D. Pa.), the Plaintiffs ask the Court to enter
an order granting them leave to file their motion for class
certification and memorandum of law in support thereof under seal.
On October 11, 2022, this Court issued an Order directing the
Plaintiffs to file their Motion for Class Certification with Brief
in Support and Exhibits by December 19, 2022.
Chipotle Mexican is an American chain of fast casual restaurants
specializing in bowls, tacos and Mission burritos made to order in
front of the customer.
A copy of the Plaintiff's motion dated Dec. 13, 2022 is available
from PacerMonitor.com at https://bit.ly/3YnCkIj at no extra
charge.[CC]
The Plaintiffs are represented by:
Frank G. Salpietro, Esq.
ROTHMAN GORDON, P.C.
310 Grant Street -- 3rd Floor
Pittsburgh, PA 15219
Telephone: (412) 338-1185
E-mail: fgsalpietro@rothmangordon.com
The Defendants are represented by:
Robert J. Mollohan, Jr., Esq.
Elizabeth Bulat Turner, Esq.
MARTENSON, HASBROUCK, & SIMON LLP
2573 Apple Valley Road NE
Atlanta, GA 30319
E-mail: rmollohan@martensonlaw.com
bturner@martensonlaw.com
CITRIX SYSTEMS: Bids for Lead Plaintiff Appointment Due Feb. 13
---------------------------------------------------------------
Wohl & Fruchter LLP on Dec. 13 disclosed that on December 12, 2022,
it filed a class action lawsuit in the United States District Court
for the Southern District of Florida ("Court"), captioned Vargas v.
Citrix Systems, Inc. et al., Case No. 1:22-cv-62327, on behalf of a
class ("Class") of individuals and entities that held common stock
of Citrix Systems, Inc. ("Citrix") as of the close of business on
September 30, 2022 ("Class Period"), asserting claims under
Sections 14(a) and 20(a) of the Securities Exchange Act of 1934,
and Securities and Exchange Commission Rule 14a-9, in connection
with the acquisition of Citrix by Vista Equity Partners and Elliott
Investment Management for an unfair price.
Investors are hereby notified that not later than February 13,
2023, any member of the purported Class may move the Court to serve
as lead plaintiff of the purported Class in this action.
If you wish to learn more about this class action, or if you have
any questions concerning this announcement or your rights with
respect to the pending action, please contact us by phone at
866-833-6245, or via email at alerts@wohlfruchter.com.
You may also download a copy of the complaint, and learn more about
the action by visiting:
https://wohlfruchter.com/cases/citrix/
About Wohl & Fruchter
Wohl & Fruchter LLP, with offices in New York City and Monsey, has
for over a decade been representing investors in litigation arising
from fraud and other corporate misconduct, and recovered hundreds
of millions of dollars in damages for investors. Please visit our
website, www.wohlfruchter.com, to learn more about our Firm, or
contact one of our partners.
Contact:
Wohl & Fruchter LLP
Joshua E. Fruchter
Toll Free 866.833.6245
alerts@wohlfruchter.com
www.wohlfruchter.com [GN]
CMK CAPITAL: Faces Parrilla Suit Over Unsolicited Text Messages
---------------------------------------------------------------
EDWIN PARRILLA, individually and on behalf of all others similarly
situated v. CMK CAPITAL, LLC, Case No. CACE-22-018198 (Fla. Cir.,
Dec. 13, 2022) contends that the Defendant promotes and markets its
merchandise, in part, by sending unsolicited text messages to
wireless phone users, in violation of Florida Telephone
Solicitation Act.
CMK Capital allegedly utilizes mass text messaging, or SMS
marketing, including at least three (3) unsolicited text messages
to Plaintiff's telephone number, (954) 600-0928, since March 15,
2022.
The Plaintiff brings this Class Action Complaint for damages,
injunctive relief, and all other available legal or equitable
remedies, resulting from the illegal actions of CMK Capital in
Negligently and/or willfully contacting the Plaintiff on Plaintiff'
s personal cellular telephone, thereby invading the Plaintiff's
privacy, the lawsuit says.
Accordingly, the Defendant made and/or knowingly allowed telephonic
sales calls to be made to the Plaintiff and the Class members
without the Plaintiff's and the Class members' prior express
written consent, asserts the suit.
CMK is a financial company specializing in small business
funding.[BN]
The Plaintiff is represented by:
Alexander J. Korolinsky, Esq.
AJK LEGAL
1560 Sawgrass Corp Pkwy, Suite 400
Sunrise, FL 33323
Telephone: (877) 448-8404
E-mail: korolinsky@ajklegal.com
- and -
Simeon Genadiev, Esq.
THE G LAW GROUP
429 Lenox Avenue, Suite 442
Miami Beach, FL 33139
Telephone: (305) 486-7468
E-mail: sgenadiev@theglawgroup.com
CODY ASKINS: Van Elzen Suit Moved From Wisconsin to W.D. Missouri
-----------------------------------------------------------------
In the lawsuit styled DAVID VAN ELZEN, individually and on behalf
of all others similarly situated, Plaintiff v. CODY ASKINS LLC, 8
PERCENT NATION LLC, and CODY ASKINS, Defendants, Case No. 22-C-840
(E.D. Wis.), Judge William C. Griesbach of the U.S. District Court
for the Eastern District of Wisconsin grants the Defendants' motion
to transfer venue, and transfers the case to the U.S. District
Court for the Western District of Missouri.
On July 24, 2022, Van Elzen filed a class-action complaint against
Defendants Cody Askins, LLC, 8 Percent Nation, LLC, and Cody
Askins, alleging that in April 2022, he started receiving unwanted
telephone calls, including a pre-recorded telephone call--or
robocall--from the Defendants in violation of the Telephone
Consumer Protection Act.
Specifically, Van Elzen alleges that after answering one of those
calls, he was greeted by a robocall soliciting him to participate
in the "Ultimate Agent Contest" and that the person, who recorded
the message, identified himself as Askins.
Presently before the court is the Defendants' motion to transfer
venue pursuant to the forum selection clause contained in the terms
and conditions that Van Elzen allegedly agreed to as a condition of
entering the contest.
The Defendants' motion to transfer venue is supported by the
declaration of Cody Askins, made under penalty of perjury pursuant
to 28 U.S.C. Section 1746. Askins states in his declaration that
Van Elzen "completed a call-to-action that appeared in an online
form to enter 'The Ultimate Agent Contest,' and provided his phone
number as a result." Askins attached to his declaration a true and
accurate copy of the online form Van Elzen completed, along with
the terms and conditions to which the form linked. The online form
states that "by clicking 'Apply Now!' you agree to our terms and
conditions." Upon clicking the "terms and conditions" link, the
applicant is taken to a webpage that lists them.
Relevant to this dispute is the last provision of the contest's
"terms and conditions," titled "Jurisdiction and Venue," which
states: "In the event that there is a dispute relating to the
contest in any way, said dispute shall be brought solely in the
district court or federal courts of Greene County, Missouri and
shall be governed by and construed in accordance with the laws of
the state of Missouri."
Based on this forum selection clause, the Defendants contend that
venue must be transferred to the United States District Court for
the Western District of Missouri.
Mr. Van Elzen argues that the clause is unenforceable because there
is no evidence that he "ever visited any website regarding The
Ultimate Agent Contest, completed a form to enter the contest, or
otherwise agreed to the contest's terms and conditions." He
contends that the Defendants' motion "is predicated exclusively on
a self-serving declaration from Askins who conclusorily declares
the 'Plaintiff completed a call to action' and then asserts that
the blank webform attached to the declaration is a business record
maintained in the ordinary course of Defendants' business." Citing
Latino Food Marketers, LLC v. Ole Mexican Foods, Inc., Case No.
03-C-0190-C, 2003 WL 23220141 (W.D. Wis. Nov. 24, 2003), Van Elzen
argues that on this record, the Defendants' motion should be
denied.
Judge Griesbach finds that Latino Food Marketers is inapposite. In
that case, following an evidentiary hearing, the court ruled that
the forum selection clause at issue in that case did "not come into
play and that venue is proper in this court" because there was no
"evidence showing that the parties intended to be bound by the
terms of the contract." Van Elzen has not denied that he entered
into a contractual agreement by filling out the internet form for
the "Ultimate Agent Contest." His argument, instead, is that the
Defendants have not met their burden to establish the existence of
a contract between the parties because Cody Askin's declaration is
"self-serving" and "conclusory."
The fact that a declaration or affidavit as self-serving, however,
is not a reason for disregarding it, Judge Griesbach opines. And
while Askins does conclude in his declaration that Van Elzen agreed
to the terms and conditions, that does not make his declaration
conclusory. Askins offered more than a conclusion that Van Elzen
agreed to the terms and conditions. He provided copies of the
online application and the terms and conditions, and then
explained, based on his personal knowledge, how one who applies to
participate in The Ultimate Agent Contest necessarily agrees to the
terms and conditions as a condition of applying.
Judge Griesbach holds that this evidence is sufficient to support a
finding that Van Elzen agreed to the terms and conditions. In the
absence of any evidentiary submission by Van Elzen to the contrary,
the Court concludes that Van Elzen agreed to, and is bound by, the
terms and conditions.
Accordingly, based on the record before the Court, the Defendants'
motion to transfer venue is granted. Venue is transferred to the
U.S. District Court for the Western District of Missouri.
A full-text copy of the Court's Order dated Dec. 5, 2022, is
available at https://tinyurl.com/4tuz7es6 from Leagle.com.
COPPER PENNY: Healey Sues Over Restaurant Staff's Unpaid Wages
--------------------------------------------------------------
DAKOTA HEALEY, individually and on behalf of all others similarly
situated, Plaintiff v. COPPER PENNY RUTHERFORDTON, LLC, and
MICHELLE GREF, Defendants, Case No. 3:22-cv-00650 (W.D.N.C., Dec.
5, 2022) is brought under the Fair Labor Standards Act seeking to
recover unpaid wages, misappropriated tips, and statutory penalties
for Plaintiff and any similarly situated co-workers whom Defendants
pay less than the minimum hourly wage. The lawsuit also alleges
unlawful retaliation for terminating Plaintiff's employment.
Plaintiff Healey is an adult individual and a resident of Spindale,
North Carolina, who worked for Defendants as a server/bartender
from January 2021 until her termination on November 23, 2022.
Copper Penny Rutherfordton, LLC is a restaurant based in
Rutherfordton, North Carolina.[BN]
The Plaintiff is represented by:
Philip J. Gibbons, Jr., Esq.
Corey M. Stanton, Esq.
Ethan L. Slabosky, Esq.
GIBBONS LAW GROUP, PLLC
14045 Ballantyne Corporate Place, Ste. 325
Charlotte, NC 28277
Telephone: (704) 612-0038
E-mail: phil@gibbonslg.com
corey@gibbonslg.com
ethan@gibbonslg.com
COULTER VENTURES: Class Cert Bid Filing Deadline Extended in Bishop
-------------------------------------------------------------------
In the class action lawsuit captioned as Bishop, et al v. Coulter
Ventures, et al., Case No. 2:20-cv-03052 (S.D. Ohio), the Hon.
Judge Kimberly A. Jolson entered an order granting motion for
extension of time in class certification motion due by March 14,
2023.
Coulter Ventures, doing business as, Rogue Fitness, retails
athletics equipment. Rogue Fitness is an American manufacturer and
distributor of gym equipment based in Columbus, Ohio.
The suit alleges violation of the Fair Labor Standards Act.[CC]
COULTER VENTURES: Class Cert Bid Filing Deadline Extended in Braun
------------------------------------------------------------------
In the class action lawsuit captioned as Braun v. Coulter Ventures,
LLC, dba Rogue Fitness, Case No. 2:19-cv-05050 (S.D. Ohio), the
Hon. Judge Kimberly A. Jolson entered an order granting motion for
extension of time in class certification motion due by March 14,
2023.
The suit alleges violation of Fair Labor Standards Act.
Coulter Ventures, doing business as, Rogue Fitness, retails
athletics equipment. Rogue Fitness is an American manufacturer and
distributor of gym equipment based in Columbus, Ohio.[CC]
CROCS RETAIL: Faces Class Action Over Consumer Privacy Violations
-----------------------------------------------------------------
Shoshy Ciment, writing for FN, reports that Crocs and Adidas have
been named in two separate class action lawsuits alleging that both
brands violated consumer privacy laws.
Both lawsuits, filed in late November by the same lawyer with two
different lead plaintiffs, accuse the brands of violating the
California Invasion of Privacy Act, which prohibits people and
businesses from wiretapping or confidentially recording
conversations without the consent of all parties.
The suit against Crocs alleges that the clog maker "secretly
wiretaps the private conversations of everyone who communicates
through the chat feature" on its website and that it allows a third
party to listen into these conversation in real-time without
consumer consent to "harvest data for financial gain." The suit say
it believes the third party listener is either SalesForce or
software platform Kayako -- or both.
The suit against Adidas also accuses the brand of illegally
wiretapping visitors' conversations, communications and mouse
clicks on its website and sharing the data with its third party
technology partners.
"Defendants actions amount to the digital equivalent of looking
over consumers' shoulders, reading consumers' journals and
eavesdropping on their conversations," the suit against Adidas
alleges. "Defendant's conduct is not only illegal, it is
offensive."
FN has reached out to Crocs for comment. Adidas declined to
comment.
For Adidas, this suit marks yet another legal spat for the
sportswear company. Just recently, Adidas was named in a class
action lawsuit over its promotion of digital currencies and NFTs
from Yuga Labs, including its flagship NFT collection Bored Ape
Yacht Club (BAYC). Paris Hilton, Stephen Curry and Serena Williams
and other celebrities were also named in the suit.
Crocs is also no stranger to legal disputes and has settled
trademark infringement suits with copycat brands in the past. [GN]
CYCLEBAR SOUTHLAKE: Faces Pinn Suit Over Unsolicited Text Messages
------------------------------------------------------------------
KELLY PINN, on behalf of herself and all others similarly situated,
Plaintiff v. CYCLEBAR SOUTHLAKE, LLC, Defendant, Case No.
3:22-cv-02684-M (N.D. Tex., Dec. 1, 2022) arises from the
Defendant's practice of advertising via unsolicited text message
marketing to individuals, including Plaintiff, who are on the
National Do-Not-Call Registry, and without prior express written
consent, in violation of the Telephone Consumer Protection Act.
The Plaintiff asserts that she never provided Defendant prior
express written consent to send telemarketing text messages to her
telephone number. Because these text messages advertise Defendant's
services they constitute telemarketing messages and telephone
solicitations, says the Plaintiff.
CycleBar Southlake, LLC is an indoor cycling franchise based in
Texas.[BN]
The Plaintiff is represented by:
Chris R. Miltenberger, Esq.
THE LAW OFFICE OF CHRIS R. MILTENBERGER, PLLC
1360 N. White Chapel, Suite 200
Southlake, TX 76092
Telephone: (817) 416-5060
Facsimile: (817) 416-5062
E-mail: chris@crmlawpractice.com
- and -
Max S. Morgan, Esq.
Eric H. Weitz, Esq.
THE WEITZ FIRM, LLC
1528 Walnut Street, 4th Floor
Philadelphia, PA 19102
Telephone: (267) 587-6240
Facsimile: (215) 689-0875
E-mail: max.morgan@theweitzfirm.com
eric.weitz@theweitzfirm.com
D & L PAVING: Faces Ibarra Suit Over Mason Laborers' Unpaid Wages
-----------------------------------------------------------------
SIMON CEDENO IBARRA, individually and on behalf of all other
persons similarly situated who were employed D& L PAVING
CONTRACTORS INC., and/or any other entities affiliated with,
controlling, or controlled by D & L PAVING CONTRACTORS, INC., J & J
PAVING & SEALCOATING CORPORATION, and any other entities affiliated
with, controlling, or controlled by J & J PAVING & SEALCOATING
COROPORATION, LLC, JOSEPH MATARAZZO, individually, and GERRY FARRO,
individually, Plaintiff v. D & L PAVING CONTRACTORS INC., and/or
any other entities affiliated with, controlling, or controlled by D
& L PAVING CONTRACTORS, INC., J & J PAVING & SEALCOATING
CORPORATION, and any other entities affiliated with, controlling,
or controlled by J & J PAVING & SEALCOATING COROPORATION, LLC,
JOSEPH MATARAZZO, individually, and GERRY FARRO, individually,
Defendants, Case No. 2:22-cv-06983 (D.N.J., Dec. 2, 2022) seeks
recovery against Defendants for alleged violation of the Fair Labor
Standards Act, the New Jersey State Wage and Hour Law, the New
Jersey Wage Payment Law, and the New Jersey State Prevailing Wage
Act by failing to pay statutorily required wages and overtime
compensation to Plaintiff and Class members.
Plaintiff Ibarra was employed by Defendants full time as a mason
laborer performing concrete work primarily for Defendants from 2015
through 2018.
D & L Paving Contractors Inc. maintains a construction business,
which is headquartered in New Jersey.[BN]
The Plaintiff is represented by:
Andrew I. Glenn, Esq.
Jodi J. Jaffe, Esq.
JAFFE GLENN LAW GROUP, P.A.
300 Carnegie Center, Suite 150
Princeton, NJ 08540
Telephone: (201) 687-9977
Facsimile: (201) 595-0308
E-mail: Aglenn@JaffeGlenn.com
Jjaffe@JaffeGlenn.com
DAIMLER TRUCK: Brooks Sues Over Unpaid Overtime Compensation
------------------------------------------------------------
Jonathan Brooks, on behalf of himself and all others similarly
situated v. DAIMLER TRUCK NORTH AMERICA LLC, Case No.
1:22-cv-01581-UNA (D. Del., Dec. 9, 2022), is brought for unpaid
overtime compensation, liquidated damages, attorneys' fees and
costs and to challenge policies and practices of Defendant that
violate the Fair Labor Standards Act ("FLSA"), and the Ohio Minimum
Fair Wage Standards Act ("OMFWSA").
The Plaintiff and other similarly situated employees, as full-time
employees, regularly worked 40 or more hours in a workweek in the
last three years, including obtaining tools, donning gear,
receiving assignments, and associated travel. As a result of
Plaintiff and other similarly situated employees not being paid for
all hours worked, Plaintiff and other similarly situated employees
were not paid overtime compensation for all of the hours they
worked in excess of 40 each workweek. The Defendant knowingly and
willfully engaged in the violations of the FLSA and OMFWSA, says
the complaint.
The Plaintiff was employed by the Defendant as a non-exempt
employee who was paid on an hourly basis.
Daimler Truck North America LLC is a Delaware limited liability
company that is registered to do business in Ohio and operates a
production facility in Canton, Ohio.[BN]
The Plaintiff is represented by:
Robi J. Baishnab, Esq.
NILGES DRAHER LLC
1360 East 9th Street, Ste. 808
Cleveland, OH 44114
Phone: (216) 230-2944
Facsimile: (330) 754-1430
Email: rbaishnab@ohlaborlaw.com
- and -
Brian E. Farnan, Esq.
Michael J. Farnan, Esq.
FARNAN LLP
919 N. Market St., 12th Floor
Wilmington, DE 19801
Phone: (302) 777-0300
Facsimile: (302) 777-0301
Email: bfarnan@farnanlaw.com
mfarnan@farnanlaw.com
DAVID MICHERY: Disregards Voting Rights of Shareholders, Suit Says
------------------------------------------------------------------
PATRICK V.P. FOLEY, JR. and JEFFREY PUDLINSKI v. DAVID MICHERY,
IGNACIO NOVOA, MARY WINTER, MARK BETOR, JOHN K. ANDERSON, WILLIAM
MILTNER, KENT PUCKETT, JONATHAN NEW, and MULLEN AUTOMOTIVE INC.,
Case No. 2022-1147(Del. Ch., Dec. 13, 2022) is a stockholder class
action arising from Mullen's Board's disregard for the voting
rights of holders of shares of Mullen common stock.
Having mistabulated the results of common stockholders' vote on a
charter amendment to change the number of shares of Mullen common
stock authorized under the Second Amended and Restated Certificate
of Incorporation ("Certificate"), the Board has proposed a de facto
recapitalization of the Company and reincorporation in Maryland, to
be predicated on votes in which two out of every three common
shares to be voted are putative, unauthorized shares. Absent
intervention and adjudication by this Court, stockholders will find
themselves owners of a Maryland-incorporated entity beyond the
reach of this Court, solely as a result of a series of breaches of
Delaware statutory and fiduciary law, says the suit.
At the Annual Meeting of Stockholders of Mullen Automotive Inc. on
July 26, 2022 ("Annual Meeting"), Mullen stockholders voted on a
proposal to change the number of shares authorized under the
Certificate, including an increase in the number of authorized
shares of common stock from 500,000,000 to 1,750,000,000. Because
shares of common stock were outstanding at the time, Delaware
General Corporation Law (DGCL) required that holders of shares of
common stock, voting separately as a class, separately approve the
proposal. The Board declared that the record date for the Annual
Meeting would be June 2, 2022. It confirmed that date four times in
the applicable proxy statement, as well as a supplement to that
proxy. When it came time to count votes, however, the Board
inexplicably allowed 2,783,659 shares of common stock that were
issued subsequent to the record date to be voted on the proposal to
amend the Certificate.
Discounting these shares, which were ineligible to vote, the
proposal to amend the Certificate did not pass. Mullen nonetheless
filed the Certificate with the Delaware Secretary of State, and has
since issued 1,159,097,754 unauthorized, putative shares of common
stock, as of November 21, 2022. Absent this Court's intervention,
the Board is poised to twice violate the DGCL in connection with
major transformative stockholder proposals and thereafter relocate
to a state where they will escape any adjudication by this Court
and concededly enjoy greater protection from litigation to hold
them accountable, says the suit.
The Plaintiffs therefore seek a pre-meeting adjudication under 8
Del. C. Section 227 of the shares entitled to vote at the upcoming
meeting or, alternatively, the entry of a status quo order
restraining action as a result of any vote of shares at the
December 23 meeting pending final disposition of this action under
8 Del. C. section 225.
The proposal to approve the Certificate Amendment therefore
required the affirmative vote of 238,755,412 shares of Mullen
common stock in order to pass, based on the 477,510,822 shares of
common stock that were issued and outstanding as of June 2, 2022;
i.e., the record date for the Annual Meeting. Fewer than
238,755,412 shares of Mullen common stock were voted to approve the
Certificate Amendment at the Annual Meeting on July 26, 2022.
Mullen nevertheless filed the Certificate Amendment with the
Delaware Secretary of State that day.
The Company has disclosed that there were putatively 1,659,097,754
shares of common stock outstanding as of November 21, 2022.
Because the Certificate authorized no more than 500,000,000 shares,
there are at least 1,159,097,754 putative shares of outstanding
Mullen common stock that are unauthorized and ultra vires, the suit
further asserts.
David Michery is the Company's President and Chief Executive
Officer (CEO), as well as the Chairman of the Board, and has served
in such capacities since the merger between Net Element and Private
Mullen in November 2021. Mr. Michery also served in these roles at
Private Mullen from its inception in 2018 to its merger in November
2021.[BN]
The Plaintiff is represented by:
Mark Lebovitch, Esq.
Gregory V. Varallo, Esq.
Daniel E. Meyer, Esq.
BERNSTEIN LITOWITZ BERGER
& GROSSMANN LLP
1251 Avenue of the Americas
New York, NY 10020
Telephone: (212) 554-1400
- and -
William J. Fields, Esq.
Christopher J. Kupka, Esq.
Samir Shukurov, Esq.
FIELDS KUPKA & SHUKUROV
LLP
1441 Broadway, 6th Floor No. 6161
New York, NY 10018
Telephone: (212) 231-1500
EAGLE EYE-ENVIROWORKS: Fails to Pay Hazard Premium, Fortner Says
----------------------------------------------------------------
JUSTIN FORTNER, individually and on behalf of all others similarly
situated Plaintiff v. EAGLE EYE-ENVIROWORKS JOINT VENTURE LLC and
EAGLE EYE ELECTRIC LLC, Defendants, Case No. 3:22-cv-00262-HRH (D.
Alaska, Dec. 5, 2022) seeks to recover unpaid overtime
compensation, liquidated damages, attorney's fees, costs, and other
relief as appropriate under the Fair Labor Standards Act.
The Plaintiff was hired by a predecessor entity of Defendants as a
lever mediator around April 2018. He worked for Defendants until
around July 2021. He worked at the St. Francois County worksite in
Missouri and when he accepted the position, he knew that the job
would involve lead exposure and compensation accordingly.
The complaint alleges that the Defendants failed to include the
hazard premium into the regular rate of pay for Plaintiff and all
others similarly situated when calculating overtime rates. The
failure to include this renumeration in overtime computations
violates Section 7(a) of the FLSA, because Defendants' employees
are working overtime without being paid the statutorily required
rates, says the complaint.
Eagle Eye-Enviroworks Joint Venture LLC was founded in 2017. The
company's line of business includes the operation of
non-classifiable establishments.[BN]
The Plaintiff is represented by:
Eva R. Gardner, Esq.
Thomas V. Wang, Esq.
ASHBURN & MASON, P.C.
1227 West 9th Avenue, Suite 200
Anchorage, AK 99501
Telephone: (907) 276-4331
Facsimile: (907) 277-8235
E-mail: eva@anchorlaw.com
thomas@anchorlaw.com
- and -
Nicholas A. Migliaccio, Esq.
Jason S. Rathod, Esq.
MIGLIACCIO & RATHOD LLP
412 H Street NE, 3rd Floor
Washington, DC 20002
E-mail: nmigliaccio@classlawdc.com
jrathod@classlawdc.com
EFREM HARKHAM: Fails to Recall Employees Within 5 Business Days
---------------------------------------------------------------
BRANDON PHILLIPS v. EFREM HARKHAM SUMMIT, INC., a California
corporation; LUXE WORLDWIDE HOTELS, LLC, a California limited
liability company; LUXE SUNSET, LLC, a California limited liability
company; and DOES 1 THROUGH 100, inclusive, Case No. 22STCV38736
(Cal. Super., Dec. 13, 2022) alleges that the Defendant failed to
recall the Plaintiff and other similarly situated aggrieved
employees within five business days in accordance with the Right to
Recall statute and failed to give them notice of their right to
recall in accordance with the statute.
Though Mr. Phillips and other similarly situated aggrieved
employees were laid off from their employment on March 2020 as a
result of the COVID-19 pandemic, to date, Defendant Luxe Hotel has
failed to notify them of available positions within five business
days of said positions becoming available and/or being created via
email and text message, as required by the Right to Recall statute.
This is so despite Mr. Phillip's numerous documented efforts to be
recalled and/or reinstated by Defendant Luxe Hotel in accordance
with the Right to Recall statute, the suit says.
Accordingly, the Defendant Luxe Hotel told Plaintiff either it was
not hiring and/or or not hiring for the positions Mr. Phillips
allegedly wanted to apply for. Defendant Luxe Hotel also directed
Mr. Phillips to attend one of its hiring events and/or job fairs,
rather than strictly comply with the Right to Recall statute, the
suit asserts.
Mr. Phillips started working for Defendant Luxe Hotel as a Server
and Room Service Attendant beginning July 2021. He was classified
as an hourly, non-exempt employee and earned $16.63 per hour.
EFREM HARKHAM SUMMIT, INC. is a hotel company.[BN]
The Plaintiff is represented by:
Arthur Sezgin, Esq.
Alisa Khousadian, Esq.
SEZGIN KHOUSADIAN LLP
500 North Central Avenue, Suite 830
Glendale, CA 91203
Telephone: (818) 696-1330
Facsimile: (818) 696-133
E-mail: arthur@sklaw.legal
alisa@sklaw.legal
ELON MUSK: Plaintiffs File Second Amended Complaint in RICO Suit
----------------------------------------------------------------
The Cryptonomist reports that the class action lawsuit for Elon
Musk to the detriment of the Dogecoin Foundation was recently
updated after plaintiffs filed their second amended complaint on
Dec. 12. In fact, a court conference is now scheduled.
The Dogecoin Foundation is a Colorado corporation that has created
and operated Dogecoin in partnership with Elon Musk since 2018. It
will also be recalled that the crypto Dogecoin has become
prestigious precisely since Musk, the Tesla genius and now Twitter
owner, demonstrated his support for it.
The second complaint against Elon Musk in the Dogecoin case
After six months of additional guarantees and RICO violations by
Elon Musk, the plaintiffs filed their second amended complaint on
Monday, 12 December, with the court's permission.
Specifically, this includes all of Mr. Musk's conduct since the
original complaint was filed on June 16, 2022, and additional stock
manipulation after the amended complaint was filed on 6 September
2022.
The SEC, Securities and Exchange Commission, announced on 8
September 2022 that almost all cryptocurrencies are actually
securities regulated by securities laws, which required pleading
amendments. The court then scheduled a conference for 20 January
2023 and the defendants hired a lawyer.
In addition, Musk's accusers announced that a new plaintiff, after
responding to their SEC statutory notice, was added because he had
lost $150,000 trading Dogecoin. In addition, four other plaintiffs
have been removed so that there are only five total class
representatives.
The suit also states that many class members lost money in the
$60,000-$75,000 range and there are about two million class members
who collectively lost billions of dollars. Plaintiffs have
identified at least one of Musk's Dogecoin wallets that coincides
with his pumping and dumping of Dogecoin.
A multibillion-dollar criminal enterprise: plaintiffs' words on
Musk
The plaintiffs, on the subject of Elon Musk and the Dogecoin
Foundation, were not mincing their words in expressing their
opinions, claiming:
"Together, Musk, the Dogecoin Foundation and Tesla are engaged in a
multibillion-dollar criminal enterprise that has defrauded millions
of people, including our five plaintiffs and the Dogecoin-owning
class out of billions of dollars. Three independent experts say
Musk is responsible for manipulating Dogecoin and the plaintiffs
have retained an expert, Stan Smith, to prove how and why Dogecoin
is nothing more than a pyramid/ponzi scheme."
Moreover, still following what the plaintiffs claim, while Musk
increased the price by 36,000% from 2019 to 2021 (from $0.002 to
$0.73), thereafter the price dropped by 90% (from $0.73 to $0.05)
and has only risen to $0.08-$0.10 recently due to Musk's purchase
of Twitter and further illegal pumping of Dogecoin.
Finally, they invite anyone who has lost money exchanging Dogecoin
or holds Dogecoin at a loss to join the class action lawsuit for
free, along with anyone who has paid Dogecoin exchange fees, mining
fees, or spread fees since 16 June 2016.
This is not the first time for Musk: all the complaints and
allegations after the Twitter acquisition
The charges against Musk over the Dogecoin Foundation case, is
unfortunately not the first for the Tesla entrepreneur. Indeed, it
only adds to a collection that Musk has nurtured since becoming the
new CEO of Twitter only a few months ago.
In fact, since he acquired Twitter, Elon Musk has not stopped being
the center of media attention. After controversy over polls such as
the one on Trump, paid blue ticks, and mass layoffs, now
authorities in San Francisco are investigating the fact that some
rooms at the company's headquarters appear to have been turned into
dormitories without any permission.
Hence, beds and curtains that, in the complaint of some employees
would seem to respond to the demand for the high-intensity work the
tycoon has been talking about for his Twitter 2.0, have once again
attracted the attention of authorities.
So, according to some sources, it would appear, citing some
employees, that beds, in some cases up to eight, and curtains have
been put up in several offices that seem to respond to the demand
for "hard, high-intensity work" that Elon Musk needs.
Some employees, in particular, have complained to authorities about
the changes that have taken place without any request to use part
of the building for residential use. The San Francisco Department
of Building Inspection does, in fact, intend to inspect Twitter's
headquarters after the complaints.
Musk and the changes to Twitter: 1.5 billion profiles set to be
deleted
As anticipated, Elon Musk has brought quite a few changes since he
became the CEO of Twitter and, in most cases, these have not been
in any way welcome by employees in the first place.
Now, another of the latest changes the Tesla genius wants to bring
to Twitter is the removal of 1.5 billion profiles from the
platform. Recently Elon Musk announced via a post the following:
"Twitter will soon start clearing the space occupied by 1.5 billion
profiles. These are obvious account deletions that have been
untweeted and logged in for years."
Meanwhile, at headquarters, robots are expected which will lead to
mass layoffs, resulting in Musk being sued by employees aggrieved
by the measure. The latter claim that Musk's mass layoffs triggered
multiple violations of workers' rights.
This is further compounded by the complaint of two cleaning workers
at Twitter's San Francisco headquarters, who told the BBC that they
were fired without receiving any benefits.
The workers added that their jobs will be replaced by robots. A
California senator commented that Musk is treating former staff
"like garbage." And San Francisco City Attorney David Chiu
announced an investigation into whether the billionaire has
violated the law.
It doesn't end there, because additional sources report how, under
Musk's leadership, life for Twitter employees has radically
changed. Whereas before they could work anywhere, now they are
forced to their desks in an effort to show that dedication to
Twitter 2.0 that Musk not only demands, but expects in order for
them to keep their jobs. [GN]
F45 TRAINING: Bids for Lead Plaintiff Appointment Due February 6
----------------------------------------------------------------
Shareholder rights law firm Johnson Fistel, LLP on Dec. 13
disclosed that a class action lawsuit has commenced on behalf of
investors of F45 Training Holdings, Inc. (NYSE: FXLV) ("F45"). The
class action is on behalf of shareholders who purchased F45 issued
in or traceable to the Registration Statement filed with the U.S.
Securities and Exchange Commission in support of the July 16, 2021,
initial public offering of F45 common stock. Investors are hereby
notified that they have until February 6, 2023, to move the Court
to serve as lead plaintiff in this action.
What actions may I take at this time? If you suffered a loss and
are interested in learning more about being a lead plaintiff,
please contact Jim Baker (jimb@johnsonfistel.com) by email or phone
at 619-814-4471. If emailing, please include a phone number.
To join this action, you can click or copy and paste the link below
into a browser:
https://www.johnsonfistel.com/investigations/f45-training-holdings-fxlv
There is no cost or obligation to you.
On or around July 15, 2021, F45 Training conducted its initial
public offering ("IPO"), selling 18.75 million shares of stock
priced at $16.00 per share. The Company reported results and issued
guidance that was generally expected by the market for about a year
after the IPO.
However, on July 26, 2022, F45 issued a press release in which it
drastically reduced its financial guidance; disclosed that would
open about 60% fewer exercise studios than promised just two months
earlier; said that a $250 million credit line was no longer
available to the Company; disclosed that the company was letting go
of about 110 employees; and announced that the CEO, Adam Gilchrist,
had resigned.
The disclosures in the press release sent the price of F45 shares
down over 60% on July 27, 2022, and it has continued since that
time to trade at less than $4.00 per share.
A lead plaintiff will act on behalf of all other class members in
directing the F45 class-action lawsuit. The lead plaintiff can
select a law firm of its choice to litigate the class-action
lawsuit. An investor's ability to share any potential future
recovery of the F45 class action lawsuit is not dependent upon
serving as lead plaintiff.
For more information regarding the lead plaintiff process please
refer to https://www.johnsonfistel.com/lead-plaintiff-deadlines.
About Johnson Fistel, LLP:
Johnson Fistel, LLP is a nationally recognized shareholder rights
law firm with offices in California, New York and Georgia. The firm
represents individual and institutional investors in shareholder
derivative and securities class action lawsuits. Johnson Fistel
seeks to recover losses incurred due to violations of federal
securities laws. For more information about the firm and its
attorneys, please visit http://www.johnsonfistel.com.Attorney
advertising. Past results do not guarantee future outcomes.
Contact:
Johnson Fistel, LLP
Jim Baker, 619-814-4471
Investor Relations
jimb@johnsonfistel.com [GN]
FLORIDA: Court Denies Crosby's Bid to Recuse and Other Motions
--------------------------------------------------------------
Judge Marcia Morales Howard of the U.S. District Court for the
Middle District of Florida, Jacksonville Division, denies the
pending motions filed by the Plaintiff in the lawsuit titled JAMES
B. CROSBY, Plaintiff v. STATE OF FLORIDA, et al., Defendants, Case
No. 3:22-cv-67-MMH-LLL (M.D. Fla.).
The various motions are: Request for Certification of
Constitutional Challenges (Request); Emergency Demand for Recusal
etc.; Notice of Intent to Proceed as a Class Representative and
Request/Demand to Certify as a Class Action and Request/Demand for
Class Counsel; Demand for Relief from Judgment; Motion to Clarify
Demand for Class Action; Affidavit for Disqualification and Demand
for Three-Judge Court and Demand for Preliminary Injunction (Second
Motion to Recuse); Emergency Demand for Ex Parte Hearing on
Preliminary Injunction Before a Three-Judge District Court and
Leave Requesting Discovery for Class Action; and Demand for
Three-Judge Court.
Defendant City of Jacksonville filed responses to these various
motions and moves to strike several of them. Crosby moves to strike
the City's Motion to Strike.
Upon review of the Motion to Recuse, Second Motion to Recuse, and
Demand for Three-Judge Court, it appears that these requests are
based on Crosby's disagreement with Judge Howard's rulings in this
case. The Judge has fully reviewed and considered the Motions and
finds that there is no reason for her to recuse herself in this
case. She points out that the Plaintiff has identified no
legitimate or factual basis for his unsupported claims of prejudice
or corruption, and his displeasure with the Court's rulings provide
no basis for recusal.
In the Class Motion, Crosby "demands this action be certified as a
class action and appoint counsel pursuant to FRCP 23(g)." Judge
Howard holds that this request is due to be denied as the operative
complaint in this action does not demand class-wide relief or
include allegations addressing the prerequisites for class
certification as required by Rule 23 of the Federal Rules of Civil
Procedure. Moreover, even if Crosby had raised class action claims
in his Third Amended Complaint, such claims would be subject to
dismissal because, as a pro se litigant, Crosby may not represent
the interest of others.
Accordingly, the Court will deny the Class Motion and deny as moot
Crosby's Motion to Clarify the Class Motion.
Mr. Crosby asks the Court to certify to the Attorney General of the
United States that this is an action challenging the
constitutionality of a federal statute. He identifies 34 U.S.C.
Section 21101-21131 as the challenged statutes.
However, upon review of the Third Amended Complaint, Judge Howard
finds that Crosby does not assert any claims challenging the
constitutionality of these or any other federal statutes. As such,
the Court will deny the request without prejudice at this time.
Nevertheless, the Court is cognizant of its obligations under 28
U.S.C. Section 2403 and Rule 5.1(b) and will revisit the issue if,
as the case progresses, the Court determines that a federal statute
is called into question by the arguments raised in the case.
In the Demand for Relief, Crosby cites Rule 60 and demands relief
from judgment that was illegally issued. However, the Court has not
issued any judgment in this case. To the extent Crosby's Demand for
Relief is a request for reconsideration of the Court's prior
rulings in this case, the Court will deny that request as Crosby
has not made any showing that reconsideration is warranted. To the
extent Crosby's Demand for Relief is directed at judgments entered
in other cases, the Demand is due to be denied for the reasons
discussed at the May 11, 2022 Hearing, Judge Howard says.
In the City's Motion to Strike, the City moves to strike Crosby's
First Motion to Recuse, Class Motion, Request, and Demand for
Relief. However, having determined that those Motions are all due
to be denied, the Court does not find it necessary to strike these
filings at this time. As such, the Court will deny the City's
Motion to Strike. Likewise, the Court will also deny Crosby's
Motion to Strike. Indeed, the Court discourages the parties from
filing motions to strike whenever counsel and/or a party believes
that the other is not complying with the Court's directives.
Instead, the parties should focus on the merits of the matters
before the Court. Reflexively filing motions to strike simply
multiplies the proceedings and delays the resolution of any pending
motion and ultimately the case, Judge Howard points out.
The Court notes that Defendant City of Jacksonville's Motion to
Dismiss Third Amended Complaint with Prejudice and Supporting
Memorandum of Law remains pending before the Court, and Judge
Howard will take up this Motion to Dismiss in due course. In the
interim, the Court does not anticipate the need for any additional
motions. However, if Crosby believes it necessary to file a motion,
then he must comply with the conferral requirement of Local Rule
3.01(g) before filing any such motion. Going forward, Judge Howard
holds any motions that do not contain a proper certificate of
conferral under Local Rule 3.01(g) will be summarily denied.
In light of the foregoing, it is ordered that:
1) Plaintiff's Request for Certification of Constitutional
Challenges is denied without prejudice;
2) Plaintiff's Emergency Demand for Recusal [etc.]; Notice of
Intent to Proceed as a Class Representative and
Request/Demand to Certify as a Class Action and
Request/Demand for Class Counsel; Demand for Relief from
Judgment; Affidavit for Disqualification and Demand for
Three-Judge District Court and Demand for Preliminary
Injunction; and Emergency Demand for Ex Parte Hearing on
Preliminary Injunction Before a Three-Judge District Court
and Leave Requesting Discovery for Class Action are denied;
3) Plaintiff's Motion to Clarify Demand for Class Action is
denied as moot;
4) Defendant City of Jacksonville's Motion to Strike and
Response in Opposition to Plaintiff's Filings and
Supporting Memorandum of Law is denied;
5) Plaintiff's Motion in Opposition and Motion to Strike is
denied;
6) Plaintiff's Reply to City of Jacksonville's Response and
Plaintiff's Reply to City of Jacksonville's Response
Concerning Ex Parte Hearing Request are stricken; and
7) Future motions that do not contain a proper certificate of
conferral under Local Rule 3.01(g) will be summarily
denied.
A full-text copy of the Court's Order dated Dec. 5, 2022, is
available at https://tinyurl.com/twhtch68 from Leagle.com.
FRESENIUS MEDICAL: Fails to Provide Proper Wages, Mooney Claims
---------------------------------------------------------------
KATHLEEN MOONEY, Individually and on behalf of all others similarly
situated, Plaintiff v. FRESENIUS MEDICAL CARE HOLDINGS, INC., and
FRESENIUS HEALTH PARTNERS, INC., Defendants, Case No.
1:22-cv-12037-AK (D. Mass., Dec. 1, 2022) is a collective action
against the Defendants to recover overtime wages and liquidated
damages brought pursuant to the Fair Labor Standards Act; and a
class action to recover unpaid straight time wages and other
applicable penalties pursuant to the state laws of South Carolina
and Fed. R. Civ. P. 23.
The Plaintiff and the Putative Collective/Class Members are those
similarly situated persons who worked for Defendants as hourly
patient-facing care providers at any time from December 1, 2019,
through the final disposition of this matter, and have not been
allegedly paid for all hours worked nor the correct amount of
overtime in violation of state and federal law.
Fresenius Medical Care Holdings, Inc. is one of the world's largest
dialysis care providers and kidney care specialists.[BN]
The Plaintiff is represented by:
Philip J. Gordon, Esq.
Kristen M. Hurley, Esq.
GORDON LAW GROUP, LLP
585 Boylston St.
Boston, MA 02116
Telephone: (617) 536-1800
Facsimile: (617) 536-1802
E-mail: pgordon@gordonllp.com
khurley@gordonllp.com
- and -
Clif Alexander, Esq.
Austin W. Anderson, Esq.
ANDERSON ALEXANDER, PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Telephone: (361) 452-1279
Facsimile: (361) 452-1284
E-mail: clif@a2xlaw.com
austin@a2xlaw.com
FTX TRADING: Hawkins Sues Over Fraudulent Business Practices
------------------------------------------------------------
RUSSELL HAWKINS, individually and on behalf of all others similarly
situated, Plaintiff v. SAMUEL BANKMAN-FRIED, CAROLINE ELLISON,
ZIXIAO "GARY" WANG, NISHAD SINGH, ARMANINO, LLP, and PRAGER METIS
CPAS, LLC, Defendants, Case No. 3:22-cv-07620 (N.D. Cal., Dec. 2,
2022) is a class action on behalf of a class consisting of all
persons and entities other than Defendants that have been unable to
withdraw funds deposited into a yield-bearing account with FTX
Trading LTD d/b/a FTX or West Realm Shires Services Inc. d/b/a FTX
US, seeking to recover damages caused by Defendants' violations of
the California Unfair Competition Law, the California False
Advertising Law, as well as common law claims for fraudulent
concealment, civil conspiracy, and declaratory judgment.
According to the complaint, the FTX Entities' rapid growth abruptly
halted on November 2, 2022, when the cryptocurrency publication
CoinDesk published an article entitled "Divisions in Sam
Bankman-Fried's Crypto Empire Blur on His Trading Titan Alameda's
Balance Sheet," which questioned the financial health of both
Alameda and the FTX Entities, and asserted that Alameda's balance
sheet was made up primarily of FTT tokens, indicating that Alameda
"rest[ed] on a foundation largely made up of a coin that a sister
company invented, not an independent asset like a fiat currency or
another crypto."
Shortly after the CoinDesk article was published, the FTX Entities
saw massive customer withdrawals, resulting in a liquidity crisis.
Ultimately, Bankman-Fried elected to freeze all withdrawals of
customer assets. Then, on November 8, 2022, rival cryptocurrency
exchange Binance announced that it had reached a non-binding deal
to acquire FTX. However, just one day later, Binance reversed its
decision, stating that a review of FTX's finances uncovered
liquidity issues that were "beyond [Binance's] control or ability
to help."
Finally, on November 12, 2022, The Wall Street Journal reported
that Bankman-Fried, Ellison, Defendant Zixiao "Gary" Wang, FTX's
Chief Technical Officer, and Defendant Nishad Singh, FTX's Chief
Engineering Officer, were aware that FTX had used customer assets
to cover Alameda's trading losses and repay its outstanding debts.
Shortly after the foregoing disclosures, Bankman-Fried resigned as
CEO of FTX and the FTX Entities and Alameda filed for bankruptcy.
In a Delaware Bankruptcy Court filing, FTX's new CEO John J. Ray
III stated that he had never seen "such a complete lack of
corporate controls and such a complete absence of trustworthy
financial information as occurred here . . . the situation is
unprecedented."
As a result of Defendants' wrongful acts described herein,
Plaintiff and other Class members have suffered significant losses
and damages, says the suit.
FTX Trading Ltd., commonly known as FTX is a bankrupt company that
formerly operated a cryptocurrency exchange and crypto hedge
fund.[BN]
The Plaintiff is represented by:
Jennifer Pafiti, Esq.
POMERANTZ LLP
1100 Glendon Avenue, 15th Floor
Los Angeles, CA 90024
Telephone: (310) 405-7190
E-mail: jpafiti@pomlaw.com
- and -
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (917) 463-1044
E-mail: jalieberman@pomlaw.com
ahood@pomlaw.com
- and -
Peretz Bronstein, Esq.
Eitan Kimelman, Esq.
BRONSTEIN, GEWIRTZ & GROSSMAN, LLC
60 East 42nd Street, Suite 4600
New York, NY 10165
Telephone: (212) 697-6484
Facsimile: (212) 697-7296
E-mail: peretz@bgandg.com
eitank@bgandg.com
FTX TRADING: Jessup Sues Over Fraudulent Crypto Business Practices
------------------------------------------------------------------
MICHAEL ELLIOTT JESSUP, individually and on behalf of all others
similarly situated, Plaintiff v. SAMUEL BANKMAN-FRIED, an
individual, CAROLINE ELLISON, an individual, NISHAD SINGH, an
individual, GARY WANG, an individual, and SAM TRABUCCO, an
individual, Defendants, Case No. 3:22-cv-07666 (N.D. Cal., Dec. 5,
2022) seeks to recover the economic injury and other damages
suffered as a result of Defendants' unlawful conduct in the form of
the price of the cryptocurrency and fiat currency in their FTX
accounts that cannot be recovered.
According to the complaint, Defendant Samuel Bankman-Fried,
co-founder and CEO of FTX, tricked people into thinking FTX was
worth far more than it was and essentially used FTX -- and his
customers' deposits, in particular -- as his personal slush fund.
First, SBF effectively paid investors, employees, and vendors
shares of the company in his own crypto currency, FTT, which he
controlled and inflated the value of, and loaned out FTX customer
deposits to his (supposedly separate) crypto hedge fund, Alameda
Research. He also regularly used FTX's assets to fund his own
personal investments (like his half billion-dollar investment into
Robinhood), purchase $300 million worth of real estate, and become
the second most prolific funder of political candidates after
George Soros, says the suit.
In the end, SBF was not the altruistic savior to the crypto
industry that he held himself out to be. Bankman-Fried instead
chose to capitalize on the lack of effective regulatory oversight
of the crypto market and defraud his customers out of billions of
dollars, the suit alleges.
Plaintiff Jessup is just one consumer who had crypto invested in
FTX and who has lost money as a result of Defendants' conduct.
Accordingly, Jessup brings suit on behalf of himself and all others
similarly situated, to seek both moneta1y and equitable relief for
Defendants' deceptive and unlawful conduct.
FTX Trading Ltd., commonly known as FTX is a bankrupt company that
formerly operated a cryptocurrency exchange and crypto hedge
fund.[BN]
The Plaintiff is represented by:
Rafey S. Balabanian, Esq.
Todd Logan, Esq.
Yaman Salahi, Esq.
P. Solange Hilfinger-Pardo, Esq.
EDELSON PC
150 California Street, 18th Floor
San Francisco, CA 94111
Telephone: (415) 212-9300
Facsimile: (415) 373-9435
E-mail: rbalabanian@edelson.com
tlogan@edelson.com
ysalahi@edelson.com
shilfinge1pardo@edelson.com
GEBRUEDER KNAUF: Chedester's Bid for Additional Discovery Denied
----------------------------------------------------------------
Magistrate Judge Sonja F. Bivins of the U.S. District Court for the
Southern District of Alabama, Southern Division, denies the
Plaintiffs' request for additional discovery in the lawsuit titled
BECKY CHEDESTER, et al., Plaintiffs v. GEBRUEDER KNAUF
VERWALTUNGSGESELLSCHAFT KG, et al., Defendants, Case No.
21-00447-KD-B (S.D. Ala.).
A status conference was conducted before the Magistrate Judge on
Nov. 1, 2022. Counsel for the parties participated by telephone.
During the conference, counsel for the parties disagreed about how
this action should proceed after being severed from Elizabeth
Bennett, et al. v. Gebrueder Knauf Verwaltungsgesellschaft KG, et
al., No. 5:14-cv-02204 (N.D. Ala.) Counsel for the Plaintiffs
argued that case-specific discovery should be allowed at this
juncture. Counsel for Defendants argued that all discovery,
including expert disclosures and depositions, was conducted while
this case was a part of In re: Chinese-Manufactured Drywall
Products Liability Litigation (MDL No. 2047), in the Eastern
District of Louisiana, and that this case should, therefore,
proceed to the dispositive motion stage. At the Court's direction,
the parties filed briefs supporting their respective positions.
Judge Bivins has carefully reviewed the parties' briefs and has
also reviewed the Bennett action and other actions that were
severed from the Bennett case, and the Court finds that no
additional discovery is warranted.
By way of background, the case involves Chinese-manufactured
drywall that was manufactured by Defendants Knauf Gips KG and Knauf
New Building System (Tianjin) Co. Ltd (collectively referenced as
the "Knauf Defendants") and other unrelated entities. This case was
commenced in November 2014 as part of a class action styled
Elizabeth Bennett, et al. v. Gebrueder Knauf
Verwaltungsgesellschaft, KG, et al., No. 5:14-cv-02204 (N.D. Ala.),
one of many cases filed against the Defendants alleging that the
materials used to make the drywall break down and release harmful
sulfur compounds and other noxious gases which cause rapid
sulfidation and result in damage to personal property, as well as
personal injury resulting in eye irritation, sore throat and cough,
nausea, fatigue, shortness of breath, fluid in the lungs, and/or
neurological harm.
According to the Plaintiffs, the Defendants acted recklessly,
wantonly, and/or negligently in the manufacture, export, import,
distribution, delivery, supply, inspection, installation,
marketing, and/or sale of the defective drywall.
The Bennett class action was transferred in December 2014 to In re:
Chinese-Manufactured Drywall Products Liability Litigation (MDL No.
2047), which is a multidistrict litigation action that was formed
years earlier due to the volume of cases involving Chinese drywall
and the commonality of issues in those cases. The parties agree
that the MDL court issued case management orders. In one of the
orders, the MDL court addressed the extensive discovery that had
been conducted since the inception of MDL 2047 in June 2009, noted
that the extensive discovery, including depositions, had been
provided to the Plaintiffs' counsel in the form of a trial package
submitted by the Plaintiff Steering Committee, and held that any
additional defendant discovery would only be permitted upon a good
faith showing that the requested information was not available
through prior discovery and was essential to the claims in the
operative complaint.
After the close of discovery, the Bennett class action was remanded
to the Northern District of Alabama. After attempts to mediate the
Bennett case proved unsuccessful, the Court severed and transferred
the claims of the Plaintiffs in this action and other plaintiffs
whose affected properties were outside the Northern District of
Alabama.
In the transfer order, the Bennett court directed the plaintiffs'
counsel in the severed cases to file amended complaints that
asserted claims consistent with the fifth amended complaint. The
court directed that the "caption of the amended complaints shall
contain only the names of the individual Plaintiffs whose claims
have been severed and the Defendants that are the subject of that
specific claim." After severing those plaintiffs whose affected
properties were located outside the Northern District of Alabama,
the Bennett court entered an order setting a briefing schedule for
summary judgment motions.
As noted supra, Judge Bivins has reviewed the parties' briefs, as
well as the Bennett action and other actions that were severed by
the Bennett court. Having done so, Judge Bivins finds that no
additional discovery is warranted.
Indeed, while the Plaintiffs argue that case-specific discovery
should be allowed, Judge Bivins finds they have not identified the
specific discovery that is needed. Instead, they have asserted that
the issues of liability and causation were resolved in MDL 2047,
and that the Defendants should be required to file stipulations
similar to those they filed in other severed actions. Given that
the Defendants have agreed to provide the requested stipulations,
Judge Bivins denies the Plaintiffs' request for additional
discovery.
Consistent with the order of the court in Bennett, the Plaintiffs'
counsel is directed to file, by no later than Dec. 30, 2022, an
amended complaint that asserts claims consistent with the fifth
amended complaint. The caption of the amended complaint will
contain only the names of the individual Plaintiffs whose claims
have been severed and are a part of this action, and only those
Defendants that are the subject of those specific claims. Any
motion for summary judgment will be filed by Jan. 27, 2023.
A full-text copy of the Court's Order dated Dec. 5, 2022, is
available at https://tinyurl.com/y2fkpkrv from Leagle.com.
GENERAC HOLDINGS: Oakland Cty. Sues Over Share Price Drop
---------------------------------------------------------
OAKLAND COUNTY VOLUNTARY EMPLOYEES' BENEFICIARY ASSOCIATION, and
OAKLAND COUNTY EMPLOYEES' RETIREMENT SYSTEM, individually and on
behalf of all others similarly situated, Plaintiffs v. GENERAC
HOLDINGS INC., AARON JAGDFELD, and YORK A. RAGEN, Defendants, Case
No. 2:22-cv-01436 (E.D. Wis., Dec. 1, 2022) is a securities class
action brought by the Plaintiff, on behalf of all investors who
purchased or otherwise acquired Generac Holdings Inc. common stock
between April 29, 2021, and November 1, 2022, inclusive, asserting
Defendants' violations of Section 10(b) of the Securities Exchange
Act of 1934 and Rule 10b-5 promulgated thereunder.
This action arises from repeated misrepresentations by Generac and
its senior executives that concealed from investors a defective
component at the core of Generac's solar power products. That
component -- the "SnapRS" -- was intended to perform an essential
safety function by rapidly shutting down solar devices in certain
dangerous situations. However, rather than protecting consumers,
the SnapRS would overheat, melt and, in some cases, start fires.
Instead of warning investors and consumers, Defendants continued to
tout the success and reliability of Generac's solar energy products
while quietly making minor modifications to the SnapRS, including
issuing a firmware update. After these modifications failed to fix
the SnapRS, Defendants continued to mislead investors, says the
suit.
According to the complaint, investors began to learn the truth
about Generac's defective SnapRS on August 1, 2022, when Pink
Energy filed a lawsuit against Generac, revealing that the
Company's "defective" SnapRS components caused millions of dollars
of damage, giving rise to liability that threatened Pink Energy's
solvency. The disclosures in the Pink Energy Complaint caused the
price of Generac shares to decline by $3.31 per share. The
liability created by defective SnapRS components ultimately forced
Pink Energy to declare bankruptcy on October 7, 2022.
On November 2, 2022, Generac released its earnings results for the
third quarter of 2022, and lowered sales guidance on its solar
energy business for the remainder of the year by approximately 40%.
On a conference call with investors and analysts held that same
day, Generac's CEO, Defendant Jagdfeld, attributed the lowered
guidance to "the loss of a major customer during the quarter, along
with the specific warranty-related issue" -- i.e., the defective
SnapRS component and the Pink Energy bankruptcy that resulted
directly from that defect. As a result of these disclosures, the
price of Generac shares declined by $8.99 per share, or 8%, the
suit alleges.
Generac Holdings Inc. is an American manufacturer of backup power
generation products for residential, light commercial and
industrial markets.[BN]
The Plaintiffs are represented by:
Tamar B. Kelber, Esq.
Jerome C. Mohsen, Esq.
GASS TUREK LLC
241 North Broadway, Suite 300
Milwaukee, WI 53202
Telephone: (414) 223-3300
Facsimile: (414) 224-6116
E-mail: kelber@gassturek.com
mohsen@gassturek.com
- and -
Hannah Ross, Esq.
Avi Josefson, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
1251 Avenue Of The Americas
New York, NY 10020
Telephone: (212) 554-1400
Facsimile: (212) 554-1444
E-mail: hannah@blbglaw.com
avi@blbglaw.com
- and -
Aaron L. Castle, Esq.
VANOVERBEKE MICHAUD & TIMMONY P.C.
79 Alfred Street
Detroit, MI 48201
Telephone: (313) 578-1200
Facsimile: (313) 578-1201
E-mail: acastle@vmtlaw.com
GLOBAL PLASMA: Fishlock Sues Over Deceptive Air Cleaning Devices
----------------------------------------------------------------
Keith Fishlock, on behalf of himself and all others similarly
situated, Plaintiff v. GLOBAL PLASMA SOLUTIONS INC., Defendant,
Case No. 1:22-cv-01566-UNA (D. Del., Dec. 2, 2022) is a class
action against the Defendant for deceit and fraudulent concealment,
breach of express warranty, breach of the implied warranty of
merchantability, breach of the implied warranty of fitness for a
particular purpose, unjust enrichment and violations of State
Consumer Protection Statutes and the Delaware Consumer Fraud Act.
According to the complaint, the Defendant preys on people desperate
to cleanse the air and protect themselves from ailments including
the COVID-19 virus. The Defendant represents that its air cleaning
products eliminate the COVID-19 virus, even though these products
do not. These products include all that used Defendant's
needlepoint bipolar ionization technology, says the suit.
To further its deception - while also hiding significant defects in
its products - Defendant deceptively represents company-funded
testing as "independent" while also using test conditions that are
not representative of the real-world use of the products.
The complaint asserts that Defendant's fraudulent, deceptive, and
misleading conduct violated and continues to violate the consumer
protection statutes of multiple states. Accordingly, Plaintiff
brings this action against Defendant on behalf of himself and Class
Members who purchased the products during the applicable statute of
limitations period.
Global Plasma Solutions Inc. is an indoor air quality company based
in the United States that provides air conditioning and other air
quality technologies for commercial and industrial buildings with a
focus on using "needlepoint bi-polar cold plasma."[BN]
The Plaintiff is represented by:
Robert J. Kriner, Jr., Esq.
Scott M. Tucker, Esq.
CHIMICLES SCHWARTZ KRINER & DONALDSON-SMITH LLP
2711 Centerville Rd., Suite 201
Wilmington, DE 19808
Telephone: (302) 656-2500
E-mail: rjk@chimicles.com
smt@chimicles.com
- and -
Dennis C. Reich, Esq.
REICH & BINSTOCK LLP
4265 San Felipe, Suite 1000
Houston, TX 77024
Telephone: (713) 622-7271
Facsimile: (713) 623-8724
E-mail: dreich@reichandbinstock.com
- and -
Michael A. Mills, Esq.
THE MILLS LAW FIRM
8811 Gaylord Drive Suite 200
Houston, TX 77024
Telephone: (832) 548-4414
Facsimile: (832) 327-7443
E-mail: mickey@millsmediation.com
- and -
Steffan T. Keeton, Esq.
THE KEETON FIRM LLC
100 S Commons, Ste. 102
Pittsburgh, PA 15212
Telephone: (888) 412-5291
E-mail: stkeeton@keetonfirm.com
GOOD DEAL: Settlement Claims Filing Deadline Set March 13, 2023
---------------------------------------------------------------
A settlement has been reached in the case of Dennis, et al. v. Good
Deal Charlie, Inc., et al., case number 4:20-cv-00295, which
alleges that Overstock, Southeastern Liquidators, LLC, Strategic
Partner Holding LLC, and Cheap Sleep, L.L.C. engaged in improper
and misleading labeling on "scratch and dent" mattresses sold at
its stores.
Am I covered by the class action lawsuit and the proposed
settlement?
You are a member of the Class if you acquired a mattress from any
Overstock store between June 18, 2017, and October 25, 2022.
What are the terms of the settlement?
Class members who timely submit an approved claim will receive a
cash payment of $42.50 and a store rebate.
How can I get a payment?
Go to www.GoodDealCharlieSettlement.com to file a claim. The
deadline to file a claim is March 13, 2023.
What are my other options?
If you are a member of the Class and do nothing, you will not
receive a cash payment or store rebate and will still be bound by
the terms of the Settlement Agreement. If you do not want to be
bound by the terms of the Settlement Agreement, you may choose to
opt out of the Class. In this case you will not receive a cash
payment or store rebate. The deadline to file an opt-out form is
January 27, 2023. If you are a Class member, you can object to any
part of the Settlement if you do not think it is fair, reasonable,
or adequate. The deadline to file an objection is January 27, 2023.
For details on how to opt out or object, go to
www.GoodDealCharlieSettlement.com.
Hearing on Final Approval.
On April 3, 2023, at 1:30 p.m. the Federal District Court for the
Northern District of Oklahoma will hold a public hearing to
determine whether the proposed settlement is fair, adequate, and
reasonable, and should be approved. Class members who do not object
to the settlement are not required to appear or take any other
action. Class members who object to the settlement are also not
required to appear or take any other action; however, those class
members who want to be heard orally in opposition to the
settlement, either personally or through counsel, must indicate
their intention to appear at the hearing in their written objection
along with other information as may be required in Paragraph 66 of
the Settlement Agreement.
Questions?
Further information about the settlement, including a copy of the
Settlement Agreement and certain class and court documents, is
available on the settlement website,
www.GoodDealCharlieSettlement.com. You may also contact the
Settlement Administrator by calling (833) 200-8003, emailing
info@GoodDealCharlieSettlement.com, or writing to Dennis v. Good
Deal Charlie, Inc., P.O. Box 25397, Santa Ana, CA 92799.[GN]
GORILLAS TECHNOLOGIES: Morse Sues Over Supervisors' Unpaid Wages
----------------------------------------------------------------
Scot Morse, Noah Frankel, Brandon Spaights, and Darnella Small, on
behalf of themselves and other similarly situated, Plaintiffs v.
Gorillas Technologies US Inc., Defendant, Case No. 1:22-cv-07305
(E.D.N.Y., Dec. 1, 2022) seeks to recover from Defendant unpaid
overtime compensation; liquidated damages on those amounts;
prejudgment and post-judgment interest; damages for failure to give
required notices and wage statements; prejudgment and post-judgment
interest; and attorneys' fees and costs pursuant to the Fair Labor
Standards Act, the New York Labor Law, and the New York State Wage
Theft Prevention Act.
Plaintiff Scot Morse worked as a supervisor for Defendant from
January 2022 to the present at 299 Atlantic Avenue, Brooklyn, New
York, for three weeks and then at 1194 Fulton Street, Brooklyn, New
York.
Gorillas Technologies US Inc. owns and operates a grocery delivery
service in New York.[BN]
The Plaintiff is represented by:
Mohammed Gangat, Esq.
LAW OFFICE OF MOHAMMED GANGAT
675 3rd Avenue Suite 1810
Telephone: (718) 669-0714
E-mail: mgangat@gangatllc.com
HEINEKEN USA: Faces Ranch Water False Advertising Class Action
--------------------------------------------------------------
Corrado Rizzi, writing for ClassAction.org, reports that a proposed
class action alleges Dos Equis Ranch Water "Classic Lime" hard
seltzer is falsely advertised in that the beverage contains neither
tequila nor lime -- ingredients consumers expect to find in
traditional ranch water.
The 12-page case says that true "ranch water" began decades ago as
a simple mix of tequila, ice and lime typically consumed from a
thermos by West Texas cowboys working under the hot sun. At some
point, carbonated water was added to the mix, and from there ranch
water's popularity spread beyond Texas, the suit states.
The lawsuit says that although the Dos Equis Ranch Water label
includes the statements "Naturally Flavored With Other Natural
Flavors," "Classic Lime," "Hard Seltzer," and "Ranch Water," the
hard seltzer is misrepresented given that it does not contain
tequila or lime, and more closely resembles a beer. Instead of
tequila from agave, defendant Heineken USA uses alcohol from a
fermented sugar base, and in place of limes, the ingredients list
states "Natural Flavors [and] Citric Acid," the filing says.
"Nowhere on any visible part of the packaging or label are
consumers told they are not buying a beverage without tequila but
one actually classified as a flavored beer," the suit summarizes.
The filing contends that consumers have paid more for Dos Equis
Ranch Water than they would have had they known it lacked certain
key ingredients.
"Plaintiff read 'Ranch Water,' 'Hard Seltzer,' 'Classic Lime' and
the flavor statement, and expected the Product contained some
alcohol from tequila and lime ingredients," the suit says.
According to the complaint, real ranch water is "not highly
processed through complicated machinery" as it's typically made by
pouring tequila, lime juice and sparkling water over ice. Today,
ranch water fits into a trend of "better for you" alcoholic
beverages touted as containing natural and simple ingredients, the
case adds.
The lawsuit argues that the label of Dos Equis Ranch Water leads
consumers to believe that the product is a hard seltzer containing
the ingredients expected to be found in ranch water. The product's
ingredients list, however, reveals that the drink contains "alcohol
(from sugar)" and artificial flavoring to deliver a lime taste, the
suit relays.
"Malt beverages such as the Product are required to indicate the
class they fit into," the case says. "'Ranch Water' above 'Hard
Seltzer' does not identify the Product's base class and/or type
designation, which is beer."
The lawsuit looks to cover consumers in Illinois, Texas, South
Dakota, Wyoming, Idaho, Alaska, Iowa, Mississippi, West Virginia,
Arkansas, South Carolina, Maine and Utah who bought Dos Equis Ranch
Water during the applicable statute of limitations period. [GN]
IDT CORP: Incurred Legal Fees in JDS1 Stockholder Suit in Oct. 2022
-------------------------------------------------------------------
IDT Corp. disclosed in its Form 10-Q Report for the quarterly
period ended October 31, 2022, filed with the Securities and
Exchange Commission on December 12, 2022, that the Company incurred
legal fees and recorded offsetting gains from insurance claims in
the three months ended October 31, 2022, related to the putative
class action brought by JDS1, LLC, on behalf of itself and all
other similarly situated stockholders of the Company's former
subsidiary, Straight Path Communications Inc.
On July 5, 2017, plaintiff JDS1, LLC, on behalf of itself and all
other similarly situated stockholders of Straight Path, and
derivatively on behalf of Straight Path as nominal defendant, filed
a putative class action and derivative complaint in the Court of
Chancery of the State of Delaware against the Company, The Patrick
Henry Trust (a trust formed by Howard S. Jonas that held record and
beneficial ownership of certain shares of Straight Path he formerly
held), Howard S. Jonas, and each of Straight Path's directors.
The complaint alleges that the Company aided and abetted Straight
Path Chairman of the Board and Chief Executive Officer Davidi
Jonas, and Howard S. Jonas in his capacity as controlling
stockholder of Straight Path, in breaching their fiduciary duties
to Straight Path in connection with the settlement of claims
between Straight Path and the Company related to potential
indemnification claims concerning Straight Path's obligations under
the Consent Decree it entered into with the Federal Communications
Commission ("FCC"), as well as the sale of Straight Path's
subsidiary Straight Path IP Group, Inc. to the Company in
connection with that settlement. That action was consolidated with
a similar action that was initiated by The Arbitrage Fund.
The Plaintiffs are seeking, among other things, (i) a declaration
that the action may be maintained as a class action or in the
alternative, that demand on the Straight Path Board is excused;
(ii) that the term sheet is invalid; (iii) awarding damages for the
unfair price stockholders received in the merger between Straight
Path and Verizon Communications Inc. for their shares of Straight
Path's Class B common stock; and (iv) ordering Howard S. Jonas,
Davidi Jonas, and the Company to disgorge any profits for the
benefit of the class Plaintiffs.
On August 28, 2017, the Plaintiffs filed an amended complaint.
On September 24, 2017, the Company filed a motion to dismiss the
amended complaint, which was ultimately denied, and which denial
was affirmed by the Delaware Supreme Court.
On February 17, 2022, the court denied the Company's motion for
summary judgment.
On March 10, 2022, JDS1, LLC withdrew its application to serve as
class representative and lead plaintiff.
On May 16, 2022, the court denied The Arbitrage Fund's motion to
serve as class representative and lead plaintiff, and approved
intervenor Ardell Howard's motion to serve as class representative.
The trial commenced on August 29, 2022 for a period of five days.
The trial continued beginning on December 5, 2022 and [was]
currently scheduled to conclude by December 13, 2022.
The Company is vigorously defending this matter. At this stage, the
Company is unable to estimate its potential liability, if any.
The Company incurred legal fees and recorded offsetting gains from
insurance claims related to this action in the three months ended
October 31, 2022 and 2021.
IDT Corporation is a multinational provider of cloud
communications, point of sale systems, unified communications, and
financial services for businesses and consumers, headquartered in
Newark, New Jersey.
IRIS ENERGY: Faces Investors' Class Action Lawsuit in New Jersey
----------------------------------------------------------------
Sheldon Reback and Eliza Gkritsi, writing for CoinDesk, reports
that class-action lawsuit against Iris Energy (IREN), the bitcoin
miner that last month said some of its mining equipment isn't
producing enough cash to meet its financing obligations, was
withdrawn a day after it was filed.
The suit was filed in the U.S. District Court for the District of
New Jersey on Dec. 7 and withdrawn on Dec. 8, court documents
show.
The suit had alleged that Iris Energy repeatedly gave out
materially false information and misled investors, starting with
the documentation for the firm's 2021 initial public offering.
Those documents were negligently prepared and failed to disclose
certain of the mining machines, "owned through its Non-Recourse
SPVs [non-recourse special purpose vehicles], were unlikely to
produce sufficient cash flow to service their respective debt
financing obligations," the suit said.
Iris Energy continued to mislead investors throughout 2022 as its
shares were traded on the Nasdaq, the claimant had alleged. The
miner downplayed the severity of its debt and sought to assure
investors by playing up its strategy of "operational efficiency and
securing additional financing," the suit said.
However, some of the company's procured hardware was unlikely to
produce enough cash to service the associated debt, so Iris
Energy's debt was not as sustainable as presented, which would in
turn have a material effect on the company's operations and
financials, the withdrawn lawsuit alleged.
On Nov. 2, Iris Energy revealed that it was in discussions to
restructure over $100 million of equipment loans because the
machines in question did not produce enough cash to service the
debt. The firm later received default notices on that debt, and
said the mining machines will likely be seized by the lender.
On Nov. 18, Iris had to unplug the related equipment. That took out
3.6 EH/s of computing power offline, cutting IREN's average
hashrate to 1.4 EH/s in November.
Because the debt was held by Non-recourse SPVs, Iris Energy's
co-founder and co-CEO Dan Roberts has reportedly argued that it is
incorrect to say that the miner defaulted on its obligations.
In its latest monthly update released on Tuesday, Iris Energy said
it is considering selling 0.4 EH/s of machines. [GN]
JACKSONVILLE UNIVERSITY: Court Narrows Claims in Allen Class Suit
-----------------------------------------------------------------
In the case, ASHLEY ALLEN, Plaintiff v. JACKSONVILLE UNIVERSITY,
Defendant, Case No. 3:21-cv-178-MMH-LLL (M.D. Fla.), Judge Marcia
Morales Howard of the U.S. District Court for the Middle District
of Florida, Jacksonville Division, grants in part and denies in
part the Defendant's Motion to Dismiss Plaintiff's Corrected Class
Action Complaint.
In early 2020, the COVID-19 pandemic upended 21st century life. As
infection rates climbed to alarming numbers, JU -- a private
university -- made several policy changes. On March 11, the school
moved classes online. Days later, it closed campus facilities and
encouraged students to leave their residence halls and return home.
These changes remained in place for the duration of the semester.
Allen was a student at JU during the spring 2020 semester. On Feb.
23, 2021, Allen, on behalf of herself and seeking to represent
similarly situated students, sued the school, alleging that JU's
response to COVID-19 violated various contracts that existed
between the two. In her Complaint, she asserts that JU, in exchange
for tuition and fee payments, promised to provide in-person
instruction, access to on-campus facilities, and housing.
According to Allen, JU breached these contracts when it moved
classes online, closed the campus, cancelled student activities,
and encouraged students to leave the residence halls (Counts I,
III, and V). As an alternative to each breach of contract claim,
Allen brings a claim for unjust enrichment (Counts II, IV, and VI).
She also brings one count alleging a violation of Florida's
Deceptive and Unfair Trade Practices Act (FDUTPA) (Count VII).
Pending before the Court is JU's Motion seeking dismissal of
Allen's Complaint for failure to state a claim under Rule 12(b)(6),
Federal Rule(s) of Civil Procedure. After JU filed the Motion, the
Florida legislature enacted Florida Statute section 768.39. The
statute immunizes educational institutions from COVID-19 related
lawsuits that seek tuition and fee reimbursements.
In JU's Supplemental Brief, JU contends that section 768.39
requires dismissal of the Complaint. In doing so, it argues that
the statute can be applied retroactively because it is merely
remedial and procedural, and alternatively, because the legislature
intended it to apply retroactively and doing so violates no
constitutional principle.
Allen disagrees. Indeed, she raises a number of constitutional
challenges to the retroactive application of Florida Statute
section 768.39 to defeat her claims. Id. Despite raising these
constitutional challenges, Allen did not file a notice of the
constitutional questions, nor did she serve notice of her
challenges on Florida's Attorney General, as required by Rules
5.1(a)(1)(B), (2), Federal Rules of Civil Procedure.
After the Court brought this failure to Allen's attention, she
filed a notice on March 25, 2022, advising that she had now
provided the required notice. In accordance with 28 U.S.C. Section
2403(b), the Court then certified the constitutional questions to
the Florida Attorney General and also stayed the case to allow her
to determine whether to intervene in the case. The Florida Attorney
General declined to respond. Accordingly both the arguments in the
Motion and JU's contention that that Florida Statute section 768.39
requires dismissal of the action are ripe for the Court's
consideration.
Judge Howard begins her analysis with JU's reliance on Florida
Statute section 768.39. She finds that Allen's claims all accrued
before section 768.39 was enacted, so Allen has a vested interest
in each cause of action. Section 768.39 -- if applied retroactively
-- would impair Allen's vested interest by imposing an
insurmountable burden on her ability to prove her claims and
recover damages. This impairment would violate Allen's rights under
both the Florida and United States Constitutions. Thus, section
768.39 cannot operate retroactively. For these reasons, Allen's
claims are not extinguished by section 768.39.
Judge Howard now turns to JU's Motion to Dismiss. In her Complaint,
Allen asserts seven claims. In Counts I, III, and V, she alleges
breach of contract claims. Specifically, Allen asserts that she
contracted with JU when she paid tuition, and, in exchange, JU
promised to provide access to in-person instruction, on-campus
facilities, and on-campus services. She also alleges that she
contracted with JU when she paid mandatory fees, and, in exchange,
JU promised to make available the facilities, services, and
programs to which the fees related. And last, Allen contends that
she contracted with JU when she paid fees related to room and
board, and, in exchange, JU promised to provide on-campus housing
and meals.
According to Allen, JU breached the Tuition Contract (Count I) and
the Fees Contract (Count III) when it moved classes online, closed
the campus, and cancelled student activities and breached the Room
and Board Contract (Count V) when it required students to leave
campus. As an alternative to each breach of contract claim, Allen
alleges claims for unjust enrichment (Counts II, IV, and VI), and
additionally, she asserts a violation of FDUTPA (Count VII).
JU urges the Court to dismiss each cause of action for failure to
state a claim pursuant to Rule 12(b)(6).
Judge Howard holds that Allen has (i) plausibly alleged that she
and JU reasonably contemplated JU's obligation to provide in-person
instruction and campus access; (ii) plausibly pled her entitlement
to damages and a breach of the Tuition Contract as alleged in Count
I; (iii) plausibly stated a claim for breach of the Fees Contract
(Count III) because she has identified specific services and
facilities to which she lost access; and (iv) not plausibly alleged
that JU wrongfully interfered with her use and enjoyment of the
premises (Count V) because she has failed to show that JU's actions
caused her to leave her residence.
Judge Howard further holds that (i) none of JU's affirmative
defenses warrant dismissal of the breach of contract claims in
Counts I and III of Allen's Complaint; (ii) Allen has failed to
plead facts from which the Court can reasonably infer that it would
be inequitable for JU to retain her room and board fees (Count VI);
and (iii) Allen has sufficiently pled a FDUTPA claim premised on
JU's underlying conduct (Count VII).
In sum, Allen has plausibly alleged that JU breached the Tuition
Contract (Count I) and the Fees Contract (Count III) when it moved
classes online, closed the campus, and cancelled student
activities. Likewise, she has plausibly alleged that JU was
unjustly enriched when it retained both her tuition payments (Count
II) and fee payments (Count IV). She has also alleged a plausible
FDUTPA claim (Count VII) based on misrepresentations JU allegedly
made to mislead potential students into believing that they would
receive in-person instruction and a unique campus experience.
Florida Statute section 768.39 does not immunize JU from these
claims because the statute, if applied retroactively, would violate
Allen's rights under both the Florida and United States
Constitutions.
Allen's claims in Counts V and VI, on the other hand, are due to be
dismissed. Allen has failed to state a claim for breach of the Room
and Board Contract (Count V) or a claim for unjust enrichment based
on JU's retention of the Room and Board Fees (Count VI). With
respect to both Counts, Allen's allegations show that JU permitted
students to remain on campus and that Allen left the residence
before JU acted. As a result, Counts V and VI will be dismissed.
Accordingly, JU's Motion to Dismiss is granted in part and denied
in part. The Motion is granted to the extent that JU seeks
dismissal of Counts V (Breach of Room and Board Contract) and VI
(Unjust Enrichment for room and board fees). Otherwise, the Motion
is denied.
The Clerk of Court is directed to lift the stay and
administratively re-open the case.
The parties must confer and complete their case management
obligations as required by Local Rule 3.02(a), Local Rules, United
States District Court, Middle District of Florida, no later than
Jan. 31, 2023.
A full-text copy of the Court's Dec. 14, 2022 Order is available at
https://tinyurl.com/5xtwe375 from Leagle.com.
JCB TRANSPORTATION: Tucker Seeks Mechanics' and Drivers' Unpaid OT
------------------------------------------------------------------
JASON TUCKER, individually, and on behalf of all others similarly
situated, Plaintiff v. JCB TRANSPORTATION, INC. and JAMES BYNUM,
Defendants, Case No. 1:22-cv-00201-LAG (M.D. Ga., Dec. 1, 2022)
arises from the Defendants' alleged conduct of maintaining a common
policy of failing to pay Plaintiff and other hourly-paid employees
at time-and-a-half of their regular rate for hours worked in excess
of 40 in a workweek, in violation of the Fair Labor Standards Act's
overtime provisions.
The Plaintiff was employed by the Defendants in the position of
mechanic/driver from approximately August 2017 through June 17,
2022.
JCB Transportation, Inc. is a trucking company running a freight
hauling business with headquarters in Camilla, Georgia.[BN]
The Plaintiff is represented by:
Roger Orlando, Esq.
THE ORLANDO FIRM, P.C.
315 West Ponce De Leon Ave Suite 400
Decatur, GA 30030
Telephone: (973) 898-0404
E-mail: roger@orlandofirm.com
- and -
Edmund C. Celiesius, Esq.
Nicholas Conlon, Esq.
BROWN, LLC
111 Town Square Place, Suite 400
Jersey City, NJ 07310
Telephone: (877) 561-0000
Facsimile: (855) 582-5297
E-mail: ed.celiesius@jtblawgroup.com
nicholasconlon@jtblawgroup.com
KANSAS CITY: Jury Issues $28.36-Mil. Class Action Verdict
---------------------------------------------------------
As previously disclosed in its financial reports, Kansas City Life
Insurance Company (the "Company") is a party to a class action
lawsuit filed in the 16th Circuit Court for the State of Missouri
(Jackson County) styled Karr v. Kansas City Life Insurance Company
(the "Karr Action"). On Dec. 9, 2022, the jury in the Karr Action
delivered a verdict against the Company in the amount of $28.36
million.
The Karr Action includes a class of Missouri policyholders who
purchased one of several different universal life policy forms
issued between 1982 and 2008.
The Company believes the facts and the law do not support the
jury's verdict and, while we respect the service of the jury, the
Company will seek to overturn the verdict in post-trial motions
with the Court. If the Court does not grant these motions, the
Company intends to vigorously challenge the verdict through an
appeal.
President Walter E. Bixby stated that "For more than 125 years,
Kansas City Life has placed the trust of our policyholders at the
forefront of our business and will continue to do so without
exception."
The results of the verdict, if not overturned or reduced by the
Court or on appeal, would likely have a material adverse impact on
the business and financial condition of the Company.
Kansas City Life Insurance Company (OTCQX: KCLI) was established in
1895 and is based in Kansas City, Missouri. The Company's primary
business is providing financial protection through the sale of life
insurance and annuities. The Company operates in 49 states and the
District of Columbia. For more information, please visit
www.kclife.com.[GN]
LEGACY CHRISTIAN: Saskatchewan Government Named in Class Action
---------------------------------------------------------------
The Star Phoenix reports that on a day in which a current Saskatoon
city councillor and the Saskatchewan government were named among
four new defendants in a $25-million class action lawsuit, the lead
plaintiff said she expects more former students to continue coming
forward to be heard.
The claim alleges Legacy Christian Academy, formerly known as
Christian Centre Academy, and Mile Two Church perpetrated and
allowed the spanking of students, fondling of minors by church
staff and other physical, psychological and sexual abuse.
Coun. Randy Donauer is among three new individuals, along with the
provincial government, listed in the amended suit, lawyer Grant
Scharfstein said on Dec. 13.
The suit now names 24 people and the provincial government as
defendants, including former teachers and administrators. The
allegations have not been tested in court.
Scharfstein, who was joined on Dec. 13 at a press conference by
lead plaintiffs Caitlin Erickson and Coy Nolin, said the province
failed in its obligations to protect the students.
Scharfstein said he has been contacted "by very close to 100 former
students that want to be part of the action."
The number doesn't surprise Erickson, who said around 200 people
have contacted her since the story first went public.
"As this continues, I expect that number to grow," she added.
Any student who attended the school between the early 1980s and the
present day can sign on to the lawsuit, as can any minors in the
church congregation who suffered or observed the alleged abuses.
Scharfstein, a lawyer for the plaintiffs, said he estimates between
700 and 800 students attended the school in that time frame.
Donauer, in an email to Postmedia on Dec. 13, said he would only
make one statement.
"I deny the allegations made against me in the Statement of Claims
and will vigorously defend them," he wrote.
A provincial government spokesperson confirmed the Government of
Saskatchewan was served in connection with the lawsuit, and
declined any further comment while the matter is before the
courts.
Postmedia has spoken with approximately a dozen students who
attended the school from its inception in the mid-1980s until the
early 2010s. Most claimed church and school officials had hit them
on the buttocks with large, wooden paddles as a form of discipline
for perceived indiscretions that included everything from talking
back to a teacher to failing to tuck in a chair.
The Supreme Court declared corporal punishment of students illegal
in 2004; the vast majority of private schools discontinued the
policy long before that.
Several former students have also made claims alleging the
organizations perpetrated and abetted the fondling of minors by
church staff and other graphic sexual abuse.
The suit seeks at least $25 million in damages or, in the
alternative, at least $1 million in damages from each defendant. It
also seeks an injunction that would prevent Mile Two Church from
operating a school for minors, and injunctions that would prevent
any of the defendants from working or serving at a school that
works with minors.
In October, at least two ex-students filed police reports alleging
Donauer was part of a culture of intimidation and violence in the
church.
Nolin told Postmedia that Donauer spanked him with a wooden paddle
after accusing him of spreading rumours about some of the campers
at a youth camp run by the academy's parent church, where he worked
in the early 2000s, when he was 16.
He said Donauer was named later than others because many in the
group pursuing the lawsuit have "blocked out" some of their
memories, or might not recall details due to the passage of time.
Donauer has previously confirmed he was a volunteer co-ordinator
for the church, and has admitted to taking part in what he
described as the church's "inappropriate" involvement in partisan
politics, which included having students from the school used as
volunteers in municipal, provincial and federal campaigns.
In the amended statement of claim, the plaintiffs say the Ministry
of Education "totally and deliberately failed" at ensuring the
school created an environment where all students "were included,
protected and respected and to foster acceptance for sexually
and/or gender diverse students based on the principles" in the
Canadian Charter of Rights and Freedoms.
The plaintiffs also claim the ministry failed to suspend or cancel
the registration of the school "on the basis of facts and
circumstances . . . which clearly make it inappropriate that the
School continue to operate."
As well, the statement of claim says the ministry "totally and
deliberately failed in the proper inspection of the School to
ensure compliance" with the Education Act.
The ministry appointed administrators in late August to oversee
Legacy Christian Academy, Grace Christian School in Saskatoon and
Regent Christian Academy in Prince Albert.
Education Minister Dustin Duncan revoked Grace Christian School's
permission to operate after the school's director refused to
cooperate with the administrator.
Legacy Christian Academy is classified as a "qualified independent
school" operated and owned by a non-profit organization, but
receives direct provincial funding. It now has to follow the
provincial curriculum, but can offer locally developed courses at
the secondary level approved by the education ministry.
In 2020-2021 it received $736,000 in provincial funds.
Erickson on Dec. 13 acknowledged that any time a class action is
filed seeking such large monetary sums, there will be those who
call it a cash grab. She said she does her best to ignore such
voices.
"There's a lot more people being supportive, being there for all
the students," she said.
"There just seems to be a lot of failings and, again, the whole
goal of this is that no one should ever have to go through the
things that we have gone through and the things that have
transpired. We will keep pushing this process until those changes
are made.
"The long-term goal is we don't want to see this ever happen to
anybody else in this province. Children's education isn't something
that should ever be debated or taken lightly."
In a statement in August, the church said it would condemn "any
acts of abuse that previous leaders committed," but did not specify
who those leaders were or what they had done.
In a later statement, Brien Johnson, who is not named as a
defendant but is the current pastor of Mile Two Church, said the
community is "deeply troubled" by allegations from students, which
were first reported by CBC.
"We have to trust that the legal system will provide clarity around
who did what to whom, and when, and will ultimately hold those
responsible to account for their actions," Johnson wrote in an
emailed statement. [GN]
LIFE SPECTACULAR: S.D. New York Denies Bid to Dismiss Slade Suit
----------------------------------------------------------------
Judge Andrew L. Carter, Jr., of the U.S. District Court for the
Southern District of New York denies the motions to dismiss the
lawsuit entitled LINDA SLADE, individually and as the
representative of a class of similarly situated persons, Plaintiffs
v. LIFE SPECTACULAR, INC. d/b/a PROVEN, Defendant, Case No.
22-CV-0037 (ALC) (S.D.N.Y.).
Plaintiff Linda Slade brings this action on behalf of herself and
all other persons similarly situated against Defendant Life
Spectacular. Slade alleges violations of Title III of the Americans
with Disabilities Act ("ADA"); New York State Human Rights Law (the
"NYSHRL"); New York State Civil Rights Law (the "NYCRL"); New York
City Human Rights Law (the "NYCHRL") on the basis that Life
Spectacular denies visually impaired people from having full and
equal access to its website.
The Defendant moves to dismiss the Plaintiff's amended class action
complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). The Defendant asserts that the Plaintiff lacks standing
to bring her claim and that the Defendant's website is not a "place
of public accommodation" under Title III of the ADA.
The Plaintiff is a visually impaired and legally blind person, who
requires screen-reading software to read website content using her
computer. The Defendant is a Delaware Foreign Business Corporation
doing business in this district with a principal place of business
located in San Francisco, California. The Defendant sells skincare
products through its website, provenskincare.com, and provides
customers a "Skin Quiz" that offers products "clinically effective
and unique to your skin, environment, and lifestyle."
The Plaintiff alleges that she has made "numerous attempts" to
complete a purchase on the website, including on Dec. 28, 2021, and
has been unable to get personalized skincare products due to the
various accessibility issues that affect the website. These
barriers to accessibility include lack of alt-text on graphics,
inaccessible drop-down menus, the lack of navigation links, the
lack of adequate prompting and labeling, the denial of keyboard
access, empty links that contain no text, redundant links where
adjacent links go to the same URL address, and the requirement that
transactions be performed solely with a mouse.
Because of these issues, the Plaintiff was unable to complete the
"Skin Quiz" that would have provided her with personalized skincare
products. According to the Plaintiff's Opposition to the Motion to
Dismiss, completion of the Skin Quiz is a prerequisite for being
able to make purchases on the website.
The Plaintiff claims that the accessibility issues on the website
have not been resolved by the Defendant as a public accommodation,
and that she "maintains a strong desire to purchase the customized
skincare products offered by Defendant and to get her specific
formula based on her skin, life, and environment."
The Defendant argues that the Court should grant its motion to
dismiss because it lacks subject matter jurisdiction over the
Plaintiff's claims. The Defendant's principal argument is that the
Plaintiff lacks standing to bring her claims because she has failed
to plead an injury in fact.
The Court holds that the Plaintiff has met her burden to
demonstrate standing in the ADA context. The Second Circuit has
held that the injury in fact standard is a "low threshold," and,
thus, the Court finds that this is a sufficiently particularized
description of a past injury caused by the Defendant's failure to
make its website accessible. The second prong of the ADA standing
analysis is also satisfied, as the Defendant has not remedied the
accessibility issues on the website.
The Plaintiff's intent to return to the website is also
sufficiently pleaded in the amended complaint, as Slade states that
she "maintains a strong desire to purchase the customized skincare
products offered by Defendant and to get her specific formula based
on her skin, life, and environment," Judge Carter holds.
The Defendant claims that the Plaintiff could potentially use other
websites for her skincare needs, but the Plaintiff's desire to take
Life Spectacular's "Skin Quiz" to find "customized skincare
products" offered by Life Spectacular can only be met on the
Defendant's website. This allows the Court to plausibly infer that
the Plaintiff wishes to return to the website to complete the quiz,
and would do so if the accessibility barriers were removed.
Judge Carter holds that the Plaintiff has pleaded sufficient facts
to establish standing in this case; the Defendant's motion to
dismiss pursuant to Rule 12(b)(1) is denied.
The Defendant then argues that the Court should grant its motion to
dismiss for failure to state a claim because Life Spectacular's
website is not a place of public accommodation under the ADA.
Judge Carter holds that the Plaintiff has stated disability
discrimination claims upon which relief can be granted under the
ADA, and the motion to dismiss for failure to state a claim is
denied. In addition, because the standards for the state and city
claims are treated as coextensive or more liberal than the ADA
standard, the Plaintiff necessarily states a claim under the other
statutes.
For the reasons discussed, Judge Carter holds that the Defendant's
motions to dismiss are denied. The dispute is returned to
Magistrate Judge Netburn's Chambers for further proceedings, as
noted in the Order of Referral originally entered at ECF No. 5. The
Clerk of Court is directed to terminate the motions pending at ECF
Numbers 13 and 18.
A full-text copy of the Court's Opinion dated Dec. 5, 2022, is
available at https://tinyurl.com/2nesxm2y from Leagle.com.
LOUIS VUITTON: Court Grants in Part Bid to Dismiss Theriot Suit
---------------------------------------------------------------
Judge Denise Cote of the U.S. District Court for the Southern
District of New York grants in part the Defendant's motion to
dismiss the lawsuit entitled PAULA THERIOT and CHERYL DOYLE,
individually and on behalf of all others similarly situated,
Plaintiffs v. LOUIS VUITTON NORTH AMERICA, INC., Defendant, Case
No. 22cv2944 (DLC) (S.D.N.Y.).
Louis Vuitton North America, Inc. ("LVNA") is an international
luxury brand that sells various products, including eyewear. On its
website, a consumer can see how a particular pair of glasses would
look on their face using the website's "Virtual Try-On" feature.
When a user of the website clicks the "Try On" button of a
particular pair of glasses, the website activates the Virtual
Try-On tool. This feature automatically activates the customer's
computer or phone camera to show a live image of the customer
"wearing" the selected glasses.
In addition to the real-time option for "trying on" eyewear,
customers may upload a photograph of their face. Through this
photo-upload option, the Virtual Try-On tool again places the pair
of glasses in the correct place on the user's photograph.
The Virtual Try-On tool operates through an application created by
a company called FittingBox, which is not a party in this case.
LVNA's website incorporates FittingBox's proprietary technology to
collect and process a user's facial geometry. A user's facial
geometry data is extracted, combined with data necessary to show
the glasses on the user's face, repackaged, and then sent back to
the user's device. Through use of this technology, LVNA collects
detailed biometric data including complete facial scans of the
users of the Virtual Try-On tool.
LVNA does not inform its users that the Virtual Try-On tool will
collect or store their facial geometry. LVNA also does not obtain
the users' consent to collect or store this data. Finally, LVNA
does not have a publicly available written policy setting out a
retention schedule and guidelines for destroying any biometric
identifiers or information after the initial purpose for collecting
them has ended.
The Plaintiffs filed their complaint on April 8, 2022, asserting
two causes of action for breach of Sections 15(a) and 15(b) of the
Illinois Biometric Information Privacy Act ("BIPA") on behalf of
themselves and others similarly situated. They filed the first
amended complaint ("FAC") on July 8. On August 17, the case was
reassigned to this Court. On August 22, the Defendant filed the
motion to dismiss the complaint in its entirety pursuant to Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
The Defendant's motion to dismiss the Plaintiffs' Section 15(a)
claim is granted, and its motion to dismiss the Section 15(b) claim
is denied.
The Defendant challenges the Plaintiffs' Section 15(a) claim under
Rule 12(b)(1), Fed. R. Civ. P., arguing that the Plaintiffs lack
Article III standing for the claim and, therefore, the Court lacks
subject matter jurisdiction.
Judge Cote notes that the irreducible minimum of Article III
standing contains three elements, citing Dubuisson v. Stonebridge
Life Ins. Co., 887 F.3d 567, 573 (2d Cir. 2018). The plaintiff must
have "(1) suffered an injury in fact, (2) that is fairly traceable
to the challenged conduct of the defendant, and (3) that is likely
to be redressed by a favorable judicial decision," citing Melito v.
Experian Mktg. Sols., Inc., 923 F.3d 85, 92 (2d Cir. 2019).
Only the injury-in-fact prong of the standing inquiry is in
dispute, Judge Cote finds. To be sufficient for Article III
standing, an injury in fact must be "concrete" and
"particularized."
Two recent opinions from the Seventh Circuit are useful in
analyzing the injury-in-fact prong of standing under Sections 15(a)
and 15(b), Judge Cote notes. In Bryant v. Compass Group USA, Inc.,
the Seventh Circuit held that "a failure to follow section 15(b) of
the law leads to an invasion of personal rights that is both
concrete and particularized," 958 F.3d 617, 619 (7th Cir. 2020). In
the same case, however, the court held that the plaintiff lacked
standing to pursue her Section 15(a) claim because she alleged only
a claim under the provision of that section requiring development
of a written policy, made available to the public, rather than the
provision requiring compliance with that policy.
By contrast, in Fox v. Dakkota Integrated Systems, LLC, the Court
of Appeals held that the plaintiff did have standing to pursue a
Section 15(a) claim, 980 F.3d 1146 (7th Cir. 2020). Unlike in
Bryant, the plaintiff in Fox did "not allege a mere failure to
publicly disclose a data-retention policy." Instead, she accused
the defendant "of violating the full range of its section 15(a)
duties by failing to develop, publicly disclose, and comply with a
data-retention schedule and guidelines."
Here, Judge Cote says, the Plaintiffs' Section 15(a) claim falls on
the Bryant side of the framework. The Plaintiffs' Section 15(a)
claim is expressly based on the "failure to develop and make
publicly available a written policy for retention and destruction
of biometric identifiers," rather than on the unlawful retention of
data after the initial purpose for collecting the data had been
satisfied. As the court held in Bryant, because the duty to develop
and disclose a retention policy is owed to the public generally,
the Plaintiffs have failed to allege a particularized harm
sufficient for Article III standing.
The Plaintiffs attempt to recast their Section 15(a) claim to
analogize the case to Fox, but this attempt fails, Judge Cote
holds. The Plaintiffs argue that the FAC alleges that they suffered
a particularized harm caused by LVNA's failure not only to publish
a retention policy, but also, "by implication," to comply with such
a policy. There are no allegations in the FAC, however, that LVNA
unlawfully retained the Plaintiffs' data after the initial purpose
for collection had ended. Here, the allegations in the FAC are
directed to LVNA's alleged failure to develop and publish data
retention and destruction policies.
Accordingly, Judge Cote holds, the Plaintiffs have not alleged an
injury in fact sufficient to confer Article III standing for their
Section 15(a) claim, and the claim is dismissed.
The Defendant moves to dismiss the Plaintiffs' Section 15(b) claims
under Rule 12(b)(6), Fed. R. Civ. P., arguing that the FAC fails to
state a claim for relief.
The Plaintiffs allege that LVNA violated Section 15(b) through its
Virtual Try-On tool. Judge Cote finds that the Plaintiffs'
allegations are sufficient to survive a motion to dismiss. The
Defendant offers two arguments in support of its motion to dismiss
the Section 15(b) claim, but each fails, Judge Cote holds.
First, the Defendant argues that the Plaintiffs have pleaded
themselves out of court by alleging that the Virtual Try-On tool is
powered by FittingBox, who is not a party to this litigation.
Second, the Defendant argues that the Plaintiffs cannot bring a
claim under BIPA because the events giving rise to the litigation
did not occur "primarily and substantially" in Illinois.
Here, the Plaintiffs allege that they are Illinois residents, who
used the Virtual Try-On tool while in Illinois. They allege that
they did not receive the proper disclosures or provide the
requisite consent for collection of their facial geometry when they
accessed the LVNA website in Illinois. Additionally, there is no
indication from the FAC that other events relevant to the action
occurred primarily in another location.
Thus, Judge Cote finds there is no basis, at this stage, to dismiss
the claim on extraterritoriality grounds.
A full-text copy of the Court's Opinion and Order dated Dec. 5,
2022, is available at https://tinyurl.com/2ydz25k5 from
Leagle.com.
Adam J. Levitt -- alevitt@dicellolevitt.com -- Amy E. Keller --
akeller@dicellolevitt.com -- Nada Djordjevic --
ndjordjevic@dicellolevitt.com -- James A. Ulwick --
julwick@dicellolevitt.com -- Sharon Cruz -- scruz@dicellolevitt.com
-- DiCello Levitt LLC, in Chicago, Illinois; David A. Straite --
dstraite@dicellolevitt.com -- DiCello Levitt LLC, in New York City;
James J. Pizzirusso -- jpizzirusso@hausfeld.com -- Hausfeld LLP, in
Washington, D.C.; Steven M. Nathan -- snathan@hausfeld.com --
Hausfeld LLP, in New York City, for Plaintiffs Paula Theriot and
Cheryl Doyle, individually and on behalf of all others similarly
situated.
Robert E. Shapiro -- rob.shapiro@bfkn.com -- Barack, Ferrazzano,
Kirschbaum, Perlman & Nagelberg, LLP, in Chicago, Illinois, for
Defendant Louis Vuitton North America, Inc.
MADRID BAKERY: Fails to Pay OT Wages, Parras Class Suit Alleges
---------------------------------------------------------------
IVAN PARRAS, individually and on behalf of all others similarly
situated v. MADRID BAKERY, LLC, a New York limited liability
company, and ARNULFO VALERA, an individual, Case No. 1:22-cv-10526
(S.D.N.Y., Dec. 13, 2022), seeks to recover unpaid overtime wages
pursuant to the Fair Labor Standards Act and the New York Labor
Law.
The Plaintiff was employed to work at the bakery counter, and his
employment duties included taking orders, answering the phones, and
providing customer service. The Plaintiff worked from 54 to 60
hours per week.
Accordingly, the Defendants never granted Plaintiff any meal
breaks. The Plaintiff was paid a standard rate of $720.00 per week
as a flat weekly rate, with no pay raises during the term of his
employment. Throughout his employment with the Defendants, the
Plaintiff was paid primarily in cash with no pay stubs provided.
The Defendants allegedly failed to pay Plaintiff any overtime
premium (time and a half) for hours worked over forty (40) in each
workweek, and never paid the Plaintiff the required "spread of
hours" pay for any day in which he worked 10 hours or more, says
the suit.
The Plaintiff worked for the Defendants for two years from December
1, 2020, through November 5, 2022.
Madrid Bakery is in the Retail Bakeries business.[BN]
The Plaintiff is represented by:
Nolan Klein, Esq.
LAW OFFICES OF NOLAN KLEIN, P.A.
5550 Glades Rd., Ste. 500
Boca Raton, FL 33431
Telephone: (954) 745-0588
E-mail: klein@nklegal.com
amy@nklegal.com
melanie@nklegal.com
MASTERCARD INC: Loses Bid to Narrow Size of UK Class Action Claim
-----------------------------------------------------------------
CUtoday.info reports that Mastercard has lost a bid to narrow the
size of the U.K.'s largest-ever class action claim over its payment
fees after appeal judges rejected its attempt to exclude some three
million people who died since the claim was first filed, Bloomberg
reported.
The credit card provider is facing a claim that's at least $12
billion from Walter Merricks, the former head of the U.K.'s
Financial Ombudsman Service representing more than 46-million
consumers.
The U.K. courts gave the green light to the suit last year in the
first judicial certification of its kind, Bloomberg reported.
"Mastercard, which was trying to reduce the size of any potential
damages, had argued that the three million people who have died
since the claim was first issued should be excluded," Bloomberg
said.
Just in Time for the Holidays, CUToday's Free Morning Headline
Email is Now Double-Free!
Don't forget to check your Spam/Junk email folder if you haven't
been receiving your free, popular and daily CUToday.info news
headlines.
And if you haven't yet signed up for the new email solution on
which CUToday.info has partnered with ResponseGenius, you can do so
here. Signing up requires less than one minute of your time.
CUToday.info has received very positive response from readers
following the move to an improved provider of the daily headlines,
but many also noted they did need to go to their Spam/Junk folder
and mark it as safe.
The new email solution has not only improved every reader's
delivery experience, but it also features a fresh, new format that
is easy to read, especially on mobile devices.
Please note and/or make your IT department or email administrator
aware the emails will be coming from the domains CUTodayinfo.com
and CUTodayinfoReply.com. [GN]
MATRIX ABSENCE: Heckle's Bid to Certify Class on NYLL Claims Okayed
-------------------------------------------------------------------
In the case, ERICA HECKLE, Plaintiff v. MATRIX ABSENCE MANAGEMENT,
INC., Defendant, Case No. 21 CV 1463 (VB) (S.D.N.Y.), Judge Vincent
L. Briccetti of the U.S. District Court for the Southern District
of New York grants the Plaintiff's motion for class certification
on her New York Labor Law claims and appointment of class counsel.
Heckle brings the purported class action against Matrix, claiming
the Defendant misclassified her and other "telephonic claims
examiners" as exempt from overtime requirements under the New York
Labor Law and failed to provide proper wage statements in violation
of NYLL Section 196. The Plaintiff also brings an individual claim
alleging the Defendant misclassified her as exempt from the
overtime provisions of the Fair Labor Standards Act.
The Defendant is a third-party administrator that processes
short-term disability ("STD") and leave of absence ("LOA") claims
on behalf of companies that provide disability benefits and paid or
unpaid leave to their employees. Defendant does not issue insurance
policies or fund insurance policies; rather, it reviews claims
submitted by its customers' employees to determine whether such
claims should be approved under the customers' insurance plans.
The Plaintiff worked as a Telephonic Claims Examiner ("TCE") in the
Defendant's Hawthorne, New York, office from November 2010 to
November 2020. TCEs are responsible for reviewing STD and LOA
claims submitted by employees of their assigned customers. Each TCE
works on a team of approximately 10 to 15 TCEs who all report to a
common supervisor.
TCEs "have autonomy to manage" claims assigned to them, but must
make decisions according to the terms of the customer's insurance
policies, applicable law, the Matrix Best Practices, and other
standard operating procedures provided to TCEs to guide claims
management. TCEs are also provided short "cheat sheets" summarizing
each customer's insurance plan to help TCEs determine claimants'
eligibility under the plan. The Matrix Best Practices sets forth
the steps TCEs should take when reviewing claims and the timelines
for completing each step.
The Defendant classifies all TCEs as "bona fide administrative"
employees exempt from the NYLL requirements. Because TCEs are
compensated as salaried employees, the Defendant does not track
whether TCEs work more than forty hours per week, and the biweekly
wage statements issued to TCEs indicate they worked eighty hours
during each two-week pay period, regardless of the actual number of
hours worked.
Now pending is the Plaintiff's motion for class certification on
her NYLL claims and for appointment of class counsel. The Plaintiff
seeks to certify a class of "all current and former Telephonic
Claims Examiners employed by the Defendant from Feb. 18, 2015, to
the final date of judgment in the Defendant's Hawthorne, New York
office (whether in-person or remotely from home)."
Judge Briccetti explains that to qualify for certification, a
plaintiff must demonstrate by a preponderance of the evidence that
the putative class meets the four requirements set forth in Rule
23(a): (1) the class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact common to the
class; (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and (4) the
representative parties will fairly and adequately protect the
interests of the class.
The Second Circuit also requires a plaintiff to demonstrate
compliance with a fifth requirement respecting class
ascertainability. If the plaintiff meets these five criteria, he or
she must also demonstrate by a preponderance of the evidence that
the proposed class satisfies "at least one of the three
requirements listed in Rule 23(b)."
Judge Briccetti finds that the Plaintiff has satisfied all four
requirements of Rule 23(a) and the additional implied requirement
of ascertainability. He also finds that the Plaintiff has satisfied
her burden to show that common questions answerable through
generalized proof predominate over individual ones. Lastly, he
foresees no manageability issues given the modest size, and easy
ascertainability of the members, of the potential class. Having met
her burden under Rule 23(a) and Rule 23(b)(3), Judge Briccetti
grants the Plaintiff's motion for class certification.
The Plaintiff also seeks appointment of her attorneys as class
counsel. Judge Briccetti finds that each firm representing the
Plaintiff is experienced in class actions and specializes in wage
and hour law, including misclassification suits. The lawyers have
already contributed significant effort to prosecuting the
Plaintiff's claims. The lawyers who submitted declarations in
support of appointment are managing or named partners of their
firms, and Judge Briccetti concludes, based on their declarations,
that the counsel will commit significant resources to representing
the class. Therefore, he appoints the Plaintiffs' attorneys as
class counsel pursuant to Rule 23(g).
In light for the foregoing, Judge Briccetti grants the Plaintiff's
motion for class certification on her NYLL claims and appointment
of class counsel. All counsel are directed to appear for a status
conference on Jan. 31, 2023, at 10:00 a.m., in Courtroom 620 at the
White Plains Courthouse. By Jan. 24, 2023, the parties are directed
to submit (i) a joint letter addressing all case management issues
going forward, including inter alia a proposed schedule for the
completion of discovery on the merits of plaintiff's claims, and
(ii) a joint proposed claim notice.
The Clerk is instructed to terminate the motion.
A full-text copy of the Court's Dec. 14, 2022 Opinion & Order is
available at https://tinyurl.com/yfafbs5c from Leagle.com.
MDL 2879: Denial of Chicago Suit Transfer to N.D. Illinois Endorsed
-------------------------------------------------------------------
Judge Paul W. Grimm of the U.S. District Court for the District of
Maryland issued a Report and Recommendation in the multidistrict
litigation entitled IN RE: MARRIOTT INT'L CUSTOMER DATA SECURITY
BREACH LITIGATION, MDL No. 19-md 2879 (D. Md.).
Judge Grimm recommends that the City of Chicago's request to
transfer its case to the U.S. District Court for the Northern
District of Illinois be denied.
The City of Chicago seeks that this Court fine Marriott for
knowingly violating the Illinois Personal Information Protection
Act, 815 ILCS 5005/2z, which is also a violation of the Municipal
Code of Chicago ("MCC") section 2-25-090(a).
Chicago complains that Marriott, while conducting trade of commerce
in Chicago, (1) failed to protect its Chicago customers from a
significant data breach; (2) failed to respond to that breach
adequately; and (3) never implemented safeguards that would have
prevented the breach, detected it sooner, and mitigated its
effect.
Chicago's complaint has survived Marriott's motion to dismiss
because Chicago lacked standing and its motion for summary judgment
in which Marriott argued that Chicago's enforcement of MCC section
2-25-09 exceeded the City's home rule authority under the Illinois
Constitution (City of Chicago v. Marriott Int'l Inc., MDL-19 and
2879, ___ F. Supp. 3d ___, 2022 US Dist. Lexis 163004 (Sept. 8,
2022)).
In litigating that motion, Marriott and Chicago engaged in
discovery, but not discovery directed at how the breach occurred
and what efforts Marriott should have made to prevent and
ameliorate it. Indeed, neither Marriott nor any of the Plaintiffs
in this Multidistrict Litigation (MDL) have engaged in discovery
into the questions of Marriott's liability for the breach. Instead,
the Consumer Track plaintiffs and Marriott engaged in discovery
into class certification.
Judge Grimm ultimately ruled that the Consumer Track plaintiffs had
established their right to proceed as a class action as to one
theory of damages but not another (In re Marriott Int'l Inc., 341
F.R.D 128 (D. Md. 2022)). Marriott has been permitted an
interlocutory appeal from that portion of Judge Grimm's opinion
that disfavored it. Marriott and the Consumer Track plaintiffs then
agreed to stay discovery pending that appeal except for discovery
pertaining to information that Marriott had provided to California
required by the California Consumer Privacy Act ("CCPA"). Judge
Grimm accepted that agreement.
Judge Grimm became concerned, however, that this Court lacked
jurisdiction to permit that discovery while the appeal was pending.
After the parties briefed the issue, Judge Grimm submitted a Report
and Recommendation that found the Court could permit the CCPA
discovery. Judge Grimm accepted the Report and Recommendation over
Marriott's objection. Thus, as the matter now stands, the Consumer
Track plaintiffs and Marriott will engage in the CCPA discovery
unless the court of appeals interdicts it. Any discovery as to
whether Marriott could have prevented the breach or reported it
more swiftly than it did will await the court of appeals' decision
and the presiding judge's lifting the stay of discovery.
Chicago, however, wants to go home to Chicago and start discovery
on Marriott's liability under MCC section 2-25-09 and then proceed
to trial. It asks the Court to recommend to the MDL Panel that its
case be removed from this MDL and remanded to the United States
District Court for the Northern District of Illinois (the "Northern
District"). Chicago wants to commence discovery even though
discovery between the Consumer Track plaintiffs and Marriott
devoted to Marriott's asserted failure to prevent the breach and to
give timely notice it had occurred is stayed.
Judge Grimm says he cannot recommend such a course of action.
First, the courts have recommended that a case be transferred from
the MDL to the transferor court only when the discovery in the case
to be transferred is specific to that case. That is certainly not
true of the discovery Chicago will seek from Marriott if Chicago's
case is transferred. Second, a transfer would defeat the purpose of
the MDL Panel assigning all the cases involving the Marriott data
breach to this court by creating duplicative discovery on identical
issues in two courts.
Moreover, the allegations Chicago and the Consumer Track plaintiffs
make in support of their claims of Marriott's liability are not
merely related or similar. They are identical, Judge Grimm holds.
The discovery Chicago and Marriott would have to undertake in the
Northern District would be identical to the discovery Marriott and
the Consumer Track will do in this Court. It cannot possibly be
said that the discovery Chicago wants to do in the Northern
District will be specific only to its case, thereby, meeting the
qualification that might permit the transfer of Chicago's case,
Judge Grimm points out.
Finally, Judge Grimm holds that it is no answer to say, as Chicago
does, that there is little chance that the discovery in its case
and the Consumer Track plaintiffs' case will overlap because they
assert different claims under different state statutes, and
Chicago, unlike the Consumer Track plaintiffs, does not assert a
common law claim. No matter the nature of the claims asserted, they
will succeed or fail based on proof of the truth of the allegations
set out in the chart.
Judge Grimm also holds that transferring Chicago's case to the
Northern District of Illinois will require, rather than eliminate,
duplicative discovery and nullify the purpose that drove the
Panel's order.
The Panel created this MDL case to avoid the risk of costly,
burdensome, duplicative discovery that may yield inconsistent
judicial decisions. Judge Grimm sees no basis in the MDL statute
and its interpretation by the Panel and the courts to justify the
conclusion that a delay that frustrates one party is sufficient to
justify remanding a case to the transferor court even though that
transfer makes duplicative discovery inevitable. Therefore, Judge
Grimm recommends that Chicago's request that this Court request the
MDL Panel to transfer its case to the Northern District of Illinois
be denied.
A full-text copy of the Court's Report and Recommendation dated
Dec. 5, 2022, is available at https://tinyurl.com/3h8zsyaw from
Leagle.com.
MDL 2936: Bids for Summary Judgment in Nationwide Suit Partly OK'd
------------------------------------------------------------------
In the case, IN RE: SMITTY'S/CAM2 303 TRACTOR HYDRAULIC FLUID
MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION.
NATIONWIDE AGRIBUSINESS INSURANCE COMPANY, Plaintiff v. SMITTY'S
SUPPLY, INC. Defendant, MDL No. 2936, Case No. 4:20-MD-02936-SRB,
Related Case No. 21-CV-00071-SRB, Case No. 4:21-cv-00071-SRB (W.D.
Mo.), Judge Stephen R. Bough of the U.S. District Court for the
Western District of Missouri, Western Division, grants in part and
denies in part:
a. Nationwide's Motion for Summary Judgment; and
b. Smitty's Supply, Inc.'s Motion for Partial Summary
Judgment.
The case arises out of an insurance coverage dispute between
Nationwide and Smitty's.
Nationwide issued to Smitty's six primary commercial general
liability insurance policies effective consecutively from April 30,
2014, to April 30, 2020. It also issued to Smitty's four umbrella
commercial general liability insurance policies effective
consecutively from April 30, 2014, to April 30, 2018. Generally,
the Primary and Umbrella Policies provide that Nationwide will
indemnify Smitty's for "those sums the insured becomes legally
obligated to pay as damages" because of "property damage" caused by
an "occurrence," as those terms are defined by the Policies. The
Primary Policies limit the amount paid for "property damage" to $1
million for "any one occurrence.
On May 25, 2018, a class action lawsuit entitled Shawn Hornbeck et.
al. v. Tractor Supply Company, et al., No. 4:18-cv-00523-NKL was
filed in the Circuit Court of Cass County, Missouri. The Hornbeck
Action was subsequently removed to the U.S. District Court for the
Western District of Missouri. The Hornbeck Action's class action
complaint alleged, in part, that some of Smitty's tractor hydraulic
fluid products ("the THF Products") increased wear and tear to the
Hornbeck Plaintiff's equipment.
Smitty's sought indemnity in the Hornbeck Action from Nationwide
under the Primary and Umbrella Policies. In response, Nationwide
issued letters to Smitty's in which Nationwide explained that it
retained counsel to defend Smitty's in the Hornbeck Action, but
reserved the rights to deny the claim and or coverage and use
action to determine the rights and obligations of the parties.
The Hornbeck Plaintiffs then filed a Revised First Amended Class
Action Complaint, which contained multiple paragraphs alleging
property damages caused by the use of the THF Products. On Jan. 4,
2019, Nationwide issue a supplemental letter to Smitty's, which
repeated its prior assertion that the Hornbeck Plaintiffs were not
seeking covered damages under the Primary and Umbrella Policies. It
raised two new exclusions it believed were applicable to several of
the Hornbeck Plaintiffs' claims. By January 2019, another Smitty's
insurer, National Union Fire Insurance Co. agreed to participate in
Smitty's defense in the Hornbeck Action.
After participating in settlement negotiations, the Hornbeck
Plaintiffs, Smitty's (including counsel from Nationwide and
National Union), and Tractor Supply (another named defendant in the
Hornbeck Action) executed the Settlement Agreement, creating a
Class Settlement Fund of $1.7 million due to property damage caused
by Smitty's 303 THF product.
The Settlement Agreement was preliminarily approved by U.S.
District Judge Nanette K. Laughrey on Aug. 19, 2019. The claims
period was established to be from May 25, 2013 to March 27, 2020.
Nationwide agreed to pay $80,000 of the Settlement Agreement,
National Union agreed to pay $20,000, leaving $1.6 million of the
Class Settlement Fund to be paid.
On Sept. 30, 2019, Nationwide sent Smitty's a letter disputing
coverage and announcing that it did not have sufficient information
to evaluate the reasonableness of the settlement or whether the
settlement was covered by the Policies. On Feb. 25, 2020, the
Hornbeck Plaintiffs filed a Motion for Final Approval of Proposed
Class Action Settlement. The motion was granted, and the Hornbeck
Action was dismissed with prejudice. Nationwide paid $80,000 of the
Class Settlement Fund, National Union paid $20,000, and Smitty's
paid the remaining $1,600,000.
On Oct. 22, 2020, Nationwide filed this declaratory judgment action
in the U.S. District Court for the Eastern District of Louisiana,
seeking a determination as to what portion, if any, it is required
to indemnify Smitty's for the Settlement Agreement in the Hornbeck
Action. The United States Judicial Panel on Multidistrict
Litigation transferred this declaratory judgment action to Judge
Bough for inclusion in the coordinated and consolidated pretrial
proceedings of In re: Smitty's/CAM2 303 Tractor Hydraulic Fluid
Marketing, Sales Practices and Products Liability Litigation, MDL
No. 20-md-02936-SRB.
After Nationwide filed a Third Amended Complaint, Smitty's filed
its First Amended Counterclaim ("FAC"). In the FAC, Smitty's
asserts the following counterclaims: Breach of Contract (Count I);
Common Law Bad Faith under Missouri and/or Louisiana law (Count
II); and Statutory Bad Faith under Mo. Rev. Stat. SectionSection
375.296 and 375.420, or, alternatively, La. Stat. Ann. Section
22:1973, or, alternatively, La. Stat. Ann. Section 22:1892 (Count
III). Nationwide moved to dismiss the FAC, which the Court denied.
The parties now each move for summary judgment. Nationwide moves
for summary judgment on its declaratory judgment claim and Smitty's
Counts I to III. Smitty's moves for summary judgment on
Nationwide's declaratory judgment claim and its breach of contract
claim (Count I). Each party opposes the other's motion.
Judge Bough addresses the parties' arguments as follows: (1)
Nationwide's claim for declaratory judgment; (2) Smitty's
Counterclaim Count I, alleging breach of contract; and (3) Smitty's
Counterclaims Counts II and III, alleging bad faith.
Both parties move for summary judgment on Count I, Nationwide's
claim for declaratory judgment, disputing whether coverage exists
under the terms of the Primary and Umbrella Policies. Judge Bough
addresses the parties' arguments as follows: (1) coverage of the
Settlement Funds; (2) coverage of attorney's fees and expenses; (3)
coverage of incentive awards; and (4) policy exclusions.
Judge Bough finds that (i) there is no genuine dispute of material
fact in that the Automatic Relief Fund is compensating for
"property damage" within the meaning of the Policies; (ii) because
a reasonable interpretation of the Policies and Settlement
Agreement shows the Damage Fund compensates for property damage, a
grant of summary judgment in favor of Smitty's is inappropriate;
(iii) he attorney's fees, to the extent they are allocated to
property damage that occurred within the Policy Period, are covered
by the Policies; (iv) the incentive awards provided in the
Settlement Agreement, in the amount of $20,000, are covered by the
Policies; and (v) the exclusions contained in the Policies do not
bar coverage in the case.
Both parties move for summary judgment on Smitty's counterclaim
Count I, alleging breach of contract. Smitty's argues that
Nationwide breached the Policies as a matter of law because it
failed to make payment for 'property damage' that Smitty's was
legally obligated to pay under the Settlement Agreement. Nationwide
disagrees, arguing that it did not breach the Policies as a matter
of law because the Settlement Agreement is not covered.
Judge Bough finds that Smitty's has shown all elements necessary to
warrant summary judgment on its counterclaim Count I, with the
caveat that Smitty's must still establish the extent of coverage
within the policy period. It is undisputed that Nationwide
contracted with Smitty's, agreeing to indemnify Smitty's in
accordance with the Policies. The Court found that the Settlement
Agreement is covered by the Policies such that Nationwide is
obligated to indemnify Smitty's. The only issue remaining is how
much Nationwide is obligated to pay Smitty's. Based on his
findings, Judge Bough holds that Smitty's is entitled to summary
judgment on its counterclaim Count I.
Nationwide moves for summary judgment on Smitty's counterclaim
Count II, alleging common law bad faith, and Count III, alleging
statutory bad faith. Both counterclaim Counts assert claims under
Missouri and Louisiana law. As a threshold matter, the parties that
Louisiana does not recognize a common law action for bad faith for
an insurer's breach of an insurance contract. Smitty's asserts the
alternative claim in Count III" pursuant to La. Stat. Ann. Sections
22:1973(a), (c) and Section 22:1892. Therefore, summary judgment is
warranted in favor of Nationwide on Count II to the extent it seeks
recovery under Louisiana common law.
The parties dispute whether Louisiana or Missouri law applies to
Smitty's tort claims. Judge Bough applies Louisiana's applicable
choice of law rule, which in the case is La. Civ. Code Ann. art. A
review of the record shows that Smitty's has created a genuine
dispute of material fact as to whether Nationwide approved the
Settlement Agreement and then denied coverage of that Settlement
Agreement in bad faith. Therefore, Judge Bough finds that summary
judgment is not warranted on either Count II, to the extent it
seeks recovery under Missouri law, or Count III.
For the reasons he stated, Judge Bough grants in part and denies in
part Nationwide's Motion for Summary Judgment and Smitty's Motion
for Partial Summary Judgment as follows:
a. Nationwide's Motion for Summary Judgment is grantedas to
Smitty's counterclaim Count II and denied as to its declaratory
judgment claim and Smitty's counterclaim Counts I and III.
b. Smitty's Motion for Summary Judgment is granted as to
Nationwide's declaratory judgment claim and its counterclaim Count
I, with the issue remaining of the amount of damages and attorney's
fees covered under the Policy Period.
The Parties will submit briefs on Jan. 6, 2022, discussing whether
the amount of damages occurring during the policy period is a
question of fact that should be determined by the Court or a
question of law that should be determined on remand.
A full-text copy of the Court's Dec. 14, 2022 Order is available at
https://tinyurl.com/yf6ytdz from Leagle.com.
MEDIBANK PRIVATE: Faces Class Action Over Alleged Data Breach
-------------------------------------------------------------
Ayesha de Kretser, writing for The Australian Financial Review,
reports that Australia's biggest health insurer Medibank said it
had received formal notification that class action lawyers from
Maurice Blackburn had lodged a complaint with the privacy
commission over its data breach, which hit 9.7 million
Australians.
Medibank said it had not yet been contacted by the Office of the
Australian Information Commissioner in relation to the complaint,
but the privacy watchdog said on December 1 that it had opened an
investigation into whether the insurer was negligent in its
handling of customer information.
Medibank said 9.7 million Australians were caught up in what had
been deemed the most invasive data breach in the country's history,
with the health claims data of 480,000 customers posted on the dark
web.
"The complaint includes allegations that Medibank has breached the
Australian Privacy Principles and seeks compensation for
individuals whose personal information was exposed as a consequence
of the cybercrime," Medibank said in a statement, without
specifying how much was sought in damages.
"As previously announced, Medibank will continue to cooperate with
the OAIC and its ongoing investigation."
The OAIC's investigation will determine if an "interference" with
the privacy of individuals has occurred and could recommend steps
that Medibank must take "to ensure the act or practice is not
repeated or continued, and to redress any loss or damage".
A Maurice Blackburn spokeswoman said the OAIC complaints process
works in a similar way to a class action, with the complaint lodged
on behalf of a group that is impacted by the same complaint,
"giving rise to a common issue of law or fact".
"We welcome that an investigation has now been opened into this
matter and while it is too early to assess how much an individual
may receive, we will seek a determination from the Commissioner
that Medibank pay compensation to all those affected by this data
breach," she said.
"The complaint lodged with the OAIC by Maurice Blackburn has been
made on behalf of all 9.7 million current and former Medibank, ahm
and international student customers whose personal information was
held by Medibank and exposed as a result of the recent data
breach." [GN]
MEIJER INC: Green Files Mislabeling Suit Over Pain Relief Patches
-----------------------------------------------------------------
William Green, individually and on behalf of all others similarly
situated, Plaintiff v. Meijer, Inc., Defendant, Case No.
2:22-cv-01444 (E.D. Wis., Dec. 4, 2022) arises from the Defendant's
conduct of making representations and omissions with respect to its
pain relief patches which are allegedly false and misleading in
violation of the Wisconsin Deceptive Trade Practices Act and State
Consumer Fraud Acts.
The Defendant manufactures, markets, labels and sells pain relief
patches promising to deliver 4% lidocaine under the Meijer brand.
The Defendant's representations about the product's potency include
"Lidocaine Pain Relief Patch," "Topical Anesthetic 4% Lidocaine,"
described as "Maximum Strength" to "Temporarily relieve[s] minor
pain & desensitize[s] aggravated nerves." The representations about
the product's adhesive attributes indicate it "Stays in Place" when
applied to "Back & Large Areas," shown by a picture of the patch
applied to the lower back, confirmed by the back panel Directions
to "[U]se one patch for up to 12 hours," but that "[the] Flexible
patch is [also] easy to remove."
The Plaintiff asserts that Defendant's product fails to deliver
lidocaine in a promised way and that maximum strength claims and
desensitizing claims are misleading because, according to the Food
and Drug Administration, this implies to consumers it will
completely block and numb nerves and pain receptors, eliminate
responses to painful stimuli, and treat neuropathic and
musculoskeletal pain, including back and spinal pain.
As a result of the false and misleading representations, the
product are sold at a premium price, approximately no less than
$9.39 per box of six patches, excluding tax and sales, higher than
similar product, represented in a non-misleading way, and higher
than it would be sold for absent the misleading representations and
omissions, says the suit.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Rd Ste 412
Great Neck, NY 11021
Telephone: (516) 268-7080
E-mail: spencer@spencersheehan.com
MOLSON COORS: Nootens Sue Over Mislabeled Sparkling Mineral Water
-----------------------------------------------------------------
Jonathan Nootens, individually and on behalf of all others
similarly situated v. Molson Coors Beverage Company, Case No.
1:22-cv-07010 (N.D. Ill., Dec. 13, 2022) sues the Defendant for
selling Topo Chico (tradename) Ranch Water Hard Seltzer that
contains other representations and omissions which are false and
misleading in violation of the Consumer Fraud Act.
The Defendant manufactures, labels, markets, distributes, and sells
"Ranch Water Hard Seltzer" containing "100% Agave & Real Lime
Juice" containing "Spiked Sparkling Water" under the Topo Chico
brand ("Product"). The label includes pictures of the agave plant,
the source crop for tequila and states "4.7% Alc. Vol." ("ABV" or
alcohol by volume).
The representations are misleading because though the ingredient
list discloses carbonated water and lime, it fails to list tequila
and adds a sweetener in the form of "agave syrup," from the source
crop of tequila, the Plaintiff contends.
Accordingly, the consumers are not told the Product they are buying
not only lacks tequila but is classified as a flavored beer. The
Product also does not include Topo Chico naturally sparkling
mineral water from Mexico, which is essential to a ranch water sold
under this brand, the Plaintiff claims. As a result of the false
and misleading representations, the Product is sold at a premium
price, approximately no less than $18.99 for a twelve-pack of 12 oz
cans, excluding tax and sales, says the suit.
The Plaintiff read "Ranch Water," "Hard Seltzer," "Spiked," and
"100% Agave & Real Lime Juice," and expected the Product contained
alcohol from tequila. The Plaintiff paid more for the Product than
he would have had he known the facts or would not have purchased
it, the suit added.
Molson Coors is one of the world's largest sellers of alcoholic
beverages under dozens of brands.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Rd Ste 412
Great Neck NY 11021
Telephone: (516) 268-7080
E-mail: spencer@spencersheehan.com
NEW ORLEANS, LA: Faces Class Actions for Overdetaining Inmates
--------------------------------------------------------------
Glenn Thrush, writing for The New York Times, reports that the
judge told Johnny Traweek he had served his time, seven months, for
hitting someone with a saucepan in a drunken fight, then suggested
he could be released from the Orleans Parish prison by midnight.
Mr. Traweek began giving away his jailhouse comforts -- a blanket,
two orange sweatshirts, ramen, soda. Then he waited out the final
hours of May 2, 2018, his last legal day behind bars.
Midnight came, midnight went. Around 4 a.m., Mr. Traweek was lying
in bed, eyes open, when the staff summoned inmates for predawn
breakfast. He would repeat that routine, including the sleepless
nights, 19 more days because the Louisiana Department of Public
Safety and Corrections did not process his paperwork in a timely
manner.
"It's a bad, bad feeling," said Mr. Traweek, now 70. "Every day,
I'm getting up and thinking I'm going to get out. And it doesn't
happen. I knew I wasn't in there for any charge, and still I have
to sit there."
Mr. Traweek's case was neither atypical nor the worst of its kind:
Roughly 200 inmates are held beyond their legal release dates on
any given month in Louisiana, amounting to 2,000 to 2,500 of the
12,000 to 16,000 prisoners freed each year. The average length of
additional time was around 44 days in 2019, according to internal
state corrections data obtained by lawyers for inmates -- and until
recently, the department's public hotline warned families that the
wait could be as long as 90 days.
In most other states and cities, prisoners and parolees marked for
immediate release are typically processed within hours -- not days
-- although those times can vary, particularly if officials must
make arrangements required to release registered sex offenders. But
in Louisiana, the problem known as "overdetention" is endemic,
often occurring without explanation, apology or compensation -- an
overlooked crisis in a state that imprisons a higher percentage of
its residents than any other in most years.
The practice is also wasteful. It costs Louisiana taxpayers about
$2.8 million a year in housing costs alone, according to department
estimates.
"The state has not made liberty, or taxpayer money, a priority in
how they run their prisons," said William B. Most, a lawyer based
in New Orleans who has filed two class-action lawsuits on behalf of
overdetained inmates.
"To our clients, it is an extremely scary experience because they
do not know why they are being held, when they will be free or how
they can get free," he added. "All they know is they should not be
behind bars."
In December 2020, the Justice Department opened an investigation
into the practices the state used to determine the release of its
prisoners, particularly those, like Mr. Traweek, who remained
behind bars despite being eligible for immediate release. The
investigation, according to people with knowledge of the situation,
is expected to find widespread violations of a federal law that
guarantees imprisoned people their "rights, privileges or
immunities."
State officials have been cooperating with the investigation, so it
is possible it could result in an agreement. Such a deal would
probably require an overhaul of procedures used to calculate time
served, according to people who have spoken to investigators, and
mandate the replacement of the state's outdated corrections
computer system known as CAJUN. (Its error message is a pixelated
pop-up of a bunny behind bars.)
Prisoners' rights groups say that federally mandated changes, while
welcome, would do little to overcome the core problem that defines
Louisiana's troubled criminal justice system: an entrenched belief
that an inmate's freedom is worth less than everyone else's.
"We exist in a space between malice and incompetence," said Jamila
Johnson of the Promise of Justice Initiative, a nonprofit in New
Orleans that has sued the state for unlawful detention and poor
treatment of prisoners.
A spokesman for Louisiana's corrections department declined to
discuss overdetention or even provide basic information about how
the system operates and declined to respond to specific claims by
inmates, citing the continuing litigation.
But in a deposition taken in January, James M. Le Blanc, who has
run the agency for 14 years, acknowledged that the state has "had a
problem with immediate releases" since at least 2012. He said the
department had halved waiting times in recent years, from an
average of more than 70 days a decade ago, and claimed that parish
prison officials were also responsible for the drawn-out releases.
"We're not where we need to be," he added.
The problem crops up sporadically in other states, including
neighboring Mississippi, and in the federal Bureau of Prisons. New
York City recently agreed to pay out as much as $300 million to
thousands of current and former inmates at local jails who had been
kept hours or a few days after they were supposed to be released.
But those waiting times are relatively short compared with what
prisoners in Louisiana endure.
The state routinely sends prisoners with sentences under 20 years
(and those with serious physical or mental conditions) to jails or
prisons run by governments in local parishes, which are the
equivalent of county governments elsewhere. That means parish
prisons serve not only as traditional jails, but also as officially
designated extensions of the state prison system.
It is a jumbled and sluggish system with tangled lines of
communication and jurisdiction -- and many of the prisoners who
have been kept past their release dates fell into the chasm between
dysfunctional state and parish bureaucracies.
A judge freed Brian Humphrey from the jail in Bossier Parish in
northwest Louisiana on April 16, 2019, after he had served three
years for an offense related to assault. He prepared to leave that
night. Instead, he languished.
The corrections department, for reasons that remain unclear, waited
10 days to even begin processing his paperwork, according to
records obtained in a 2021 class-action lawsuit his lawyers filed
against the state. Instead of freeing Mr. Humphrey, as he was
legally bound to do, the parish sheriff transferred him to a
state-run work camp outside Shreveport, where he stayed until he
was released on May 13, 2019.
That was 27 days beyond his release date.
Louisiana has one of the most overcrowded prison systems in the
country, yet parish sheriffs are often reluctant to release people
they believe are at high risk of committing new crimes. Some even
view inmates housed in local facilities as worth holding onto as
free labor.
In October 2017, Sheriff Steve Prator of Caddo Parish, which
includes Shreveport, told reporters he was concerned that a recent
criminal justice effort in the state was bad for parish
governments. Not only would it result in higher crime rates among
the "bad" former prisoners, but it would also deprive his staff of
free labor provided by the "good ones."
"They're releasing some good ones that we use every day to wash
cars, to change oil in our cars, to cook in the kitchen, to do all
that, where we save money," Sheriff Prator said.
There are few incentives for rushing an inmate out the door,
especially if the state is picking up the tab: Reimbursement rates
for state prisoners are a significant source of income in the
parishes, and a handful of parish facilities have eagerly accepted
migrants detained at the border, which offers even higher federal
reimbursement rates.
Even well-intentioned corrections officials must navigate the
state's complex web of sentencing statutes and time calculation
rules before signing off on the release of a prisoner.
Over the past several decades, formulas for sentencing guidelines
have shifted, and record keeping has been spotty. Those documents
can span multiple decades and cover several facilities, making it
hard to nail down a precise accounting of time served -- which is
often the cause of snags.
Sarah O'Brien, a supervising lawyer with the public defenders'
office in Orleans Parish, has tried to take a more proactive
approach. She reviews court records for prisoners around the state,
typically those serving longer sentences, who might be entitled to
immediate release because of errors in their time calculations.
She is constantly consulting a photograph on her phone. A cheat
sheet she put together, written in fastidious longhand, lists all
the relevant state laws and their dates of passage. It covers a
full page of graph paper.
She also cultivates relationships with court and corrections
workers. Recently, she moved up an inmate's release date by a year
after tracking down a juvenile detention record believed to have
been lost in the flooding after Hurricane Katrina in 2005.
Ms. O'Brien found a back-office worker who had access the
paperwork, and the woman responded, "If there are records, I got
'em!"
She found them, and the man was freed.
Just as often, the opposite is true, lawyers and inmates say.
Officials in the system can hold up a release on little more than a
whim, sometimes because they have interpreted a judge's decision in
their own way.
One former inmate from New Orleans served more than 18 months
beyond his three-year plea agreement because a staff member in his
state-run prison in Homer, La., noticed a glitch in the document
signed by his trial judge -- the order the charges were listed in
was incorrect -- that should have had no bearing on his release.
The prisoner, a man in his late 40s who spoke on the condition of
anonymity because he was incarcerated for a sexual offense, wrote
letter after letter to state officials. After a few months, he had
what he assumed to be a breakthrough. The prison official who had
blocked his release promised she would personally walk him out of
prison if he was able to retrieve a missing document from the
court.
It took him weeks to do so. When he turned it over, he instead
waited for months before his case was finally sorted out.
He withdrew from the inmates he had befriended, fearful that his
growing anger would spill over into physical aggression, and threw
himself into his job as an orderly, sweeping up his cellblock and
collecting garbage. Only during weekly Bible study sessions would
he engage.
"How do I describe what it's like?" he said. "It's like you're
pretty much a nobody. You can write. You can request to speak to
this person or to that person. But you're at their mercy -- why? --
because they don't want to be bothered." [GN]
NEW YORK, NY: Faces Class Suit Over Mental Health Care Management
-----------------------------------------------------------------
NYLPI reports that the City's latest story about Mayor Adams's new
involuntary mental health directive featured a timeline of the
class-action lawsuit filed by NYLPI and co-counsel, Baerga v. City
of New York. The City reports on why police response during mental
health crises -- instead of intervention by peer-led mental health
advocates -- can ultimately do more harm than good. NYLPI,
coalition partners, and activists recently rallied at City Hall to
demand better mental health crisis response services.
"Right out of the gate, Adams faces three major challenges, THE
CITY has found:
The number of cops who've received Crisis Intervention Training
(CIT) related to handling mental health calls has dropped
dramatically over the two last years, to the point where nearly
two-thirds of active duty officers remain untrained.
With so many untrained cops, it would make sense for 911 to
automatically route these calls to cops with CIT, as the
department's inspector general recommended five years ago. The NYPD
has said that's impossible, insisting the problem would be moot
once the entire staff was trained. That's nowhere near happening.
A 2021 pilot program called B-HEARD (Behavioral Health Emergency
Assistance Response Division) that aimed to take police out of the
equation altogether has faltered. The goal was to assign teams of
EMTs and social workers to mental health calls, but the vast
majority of such calls are still handled by cops.
On Dec. 8, lawyers representing several groups advocating for the
rights of individuals with mental health challenges -- including
Herrera and her son -- asked a federal judge to temporarily halt
Adams' new plan, arguing that it will rely too much on untrained
cops deciding a person must be committed to psychiatric care
against their will." [GN]
OAK RIDGE: Pitts Sues Over Fraud ED Treatment Success Rate
----------------------------------------------------------
LYNN PITTS, individually and on behalf of all others similarly
situated v. OAK RIDGE MEDICAL BILLING SERVICES, LLC, WASATCH
BUSINESS SOLUTIONS, LLC, and ANDREW RINEHART, Case No.
4:22-cv-00819 (W.D. Mo, Dec. 13, 2022) alleges that the Defendants
made fraudulent scheme of selling "Acoustic Pressure Wave
Treatment" as a medical treatment for erectile dysfunction (ED).
The Defendants allegedly made material representations that the
Defendants' ED "treatment" had a success rate of 90% or more and
Defendants' ED "treatment" could reverse ED without medication,
surgery, or needles. Without a complete medical history, medical
testing, and a full medical examination, the Defendant had no basis
for promising Plaintiff and members of the Class a success rate in
excess of 90%, the suit claims.
The Plaintiff and the members of the Class were in fact deceived by
Defendants' claims of efficacy and relied on such claims when
agreeing to pay thousands of dollars for Defendants' ED
"treatment."
On April 7, 2022, the Plaintiff visited the Oak Ridge Medical
Clinic and participated in a New Patient Initial Consultation. The
Plaintiff was told by an employee of Oak Ridge Medical Center that
the medical treatments had a 93% success rate, and that 15-20
treatments could be purchased for eight-thousand five-hundred
dollars ($8,500). The Plaintiff balked at such a high price, and so
a negotiation followed. The employee of Oak Ridge Medical Center
quoted Plaintiff various prices, and enticed Plaintiff with an
offer of $5,000 for (5) treatments, but "only if" Plaintiff paid
that day.
From April 2022 to July 2022, the Plaintiff proceeded with the ED
treatments, however, even after nearly a dozen treatments, the
Plaintiff noticed no progress toward the treatment of ED. Plaintiff
discovered that Defendants:
a. Commonly and routinely give percentages of effectiveness of
the treatment in excess of 90%;
b. Commonly and routinely negotiate pricing among customers,
and prices paid vary by thousands of dollars; and
c. Commonly and routinely fail to provide any medical benefit
to Defendants' customers.[BN]
The Plaintiff is represented by:
Brandon M. Wise, Esq.
PEIFFER WOLF CARR
KANE CONWAY & WISE, LLP
818 Lafayette Ave., Floor 2
St. Louis, MO 63104
Telephone: (314) 833-4825
E-mail: bwise@peifferwolf.com
- and -
Daren A. Luma, Esq.
DAREN A. LUMA, PLLC
75 South Broadway, Suite 400
White Plains, NY 10601
Telephone: (914) 403-4051
E-mail: dluma@lumalegal.com
ORRSTOWN FINANCIAL: Settles SEPTA Shareholder Class Suit
--------------------------------------------------------
Orrstown Financial Services, Inc. disclosed in its Form 8-K Current
Report dated December 7, 2022, filed with the Securities and
Exchange Commission on December 13, 2022, that on December 7, 2022,
Orrstown Financial Services, Inc. (the "Company") entered into a
Stipulation and Agreement of Settlement (the "Stipulation") to
settle and resolve the previously disclosed shareholder class
action lawsuit filed by Southeastern Pennsylvania Transportation
Authority on behalf of itself and all others similarly situated
(collectively, the "Plaintiffs"), initially filed on May 25, 2012
in the U.S. District Court for the Middle District of Pennsylvania
(the "Court") against the Company, its wholly-owned subsidiary
Orrstown Bank (the "Bank"), certain of its current and former
officers and directors, the Company's former independent registered
public accounting firm, and the two underwriters in the Company's
March 2010 public offering of common stock (collectively, the
"Defendants").
The Stipulation further memorializes the terms set forth in the
previously disclosed Memorandum of Understanding entered into by
the Plaintiffs and Defendants on November 7, 2022 and provides for
a payment to the Plaintiffs of $15.0 million, to which the Company
has agreed to contribute $13.0 million, a mutual release of claims
against all parties, and a stipulation that the lawsuit will be
dismissed with prejudice. The Stipulation does not include any
admission of wrongdoing by any party. The Company has agreed to
settle the case in order to avoid the cost, risks and distraction
of continued litigation.
The Stipulation was filed with the Court on December 8, 2022. The
proposed settlement contemplated by the Stipulation is subject to
preliminary and final court approval. In addition, the Defendants
have the option to terminate the Settlement if class members who in
the aggregate purchased more than a certain number of shares of
Orrstown Financial Services, Inc. common stock during the class
period, timely and validly exclude themselves from the Class.
Orrstown Financial Services, Inc. operates as the bank holding
company for Orrstown Bank that provides various commercial banking
and trust services in Pennsylvania and Maryland. The company offers
various deposit products, including demand, time, savings,
checking, and money market deposits. It is based in Shippensburg,
Pennsylvania.
PEPSICO INC: Taylor Sues Over Mislabeled Sparkling Juice Products
-----------------------------------------------------------------
Tiffany Taylor, individually and on behalf of all others similarly
situated, Plaintiff v. PepsiCo, Inc. and PAI Partners, Inc.,
Defendants, Case No. 7:22-cv-10219 (S.D.N.Y., Dec. 1, 2022) arises
from the Defendants' alleged conduct of misrepresenting their
products in violation of the State Consumer Protection Statues and
the New York's General Business Law.
The Defendants formulate, manufacture, advertise, and sell "IZZE"
sparkling juice products throughout the United States, including in
New York. The Defendants market their products in a systematically
misleading manner by misrepresenting that their products do not
contain preservatives, says the suit.
Because Defendants' sales are driven by health-conscious consumers
seeking products that are free from preservatives, Defendants
prominently display on the front label of their products that they
contain "NO PRESERVATIVES." Unbeknownst to consumers, however,
Defendants' products contain "citric acid" and/or "ascorbic acid"
-- two well-known preservatives used in food products, asserts the
suit.
The Plaintiff purchased most of the Defendants' products
(including, but not limited to, Defendants' Sparkling Blackberry
bottles and cans) for her personal use on various occasions within
the applicable statute of limitations, with her most recent
purchases taking place in July of 2022.
PepsiCo, Inc. is an American multinational food, snack, and
beverage corporation headquartered in Harrison, New York.[BN]
The Plaintiff is represented by:
Adrian Gucovschi, Esq.
GUCOVSCHI ROZENSHTEYN, PLLC
630 Fifth Avenue, Suite 2000
New York, NY 10111
Telephone: (212) 884-4230
E-mail: adrian@gr-firm.com
- and -
Frederick J. Klorczyk III, Esq.
BURSOR & FISHER, P.A
888 Seventh Avenue
New York, NY 10019
Telephone: (646) 837-7150
E-mail: fklorczyk@bursor.com
REVERSE MORTGAGE: Giglio Files Suit Over Ilegal Termination
-----------------------------------------------------------
MELISSA GIGLIO, on behalf of herself and all others similarly
situated, Plaintiff v. REVERSE MORTGAGE INVESTMENT TRUST INC.,
REVERSE MORTAGE FUNDING, LLC, RMIT CASH MANAGEMENT LLC, RMIT
OPERATING I LLC, and RMIT OPERATING II LLC, Defendants, Case No.
22-50473-MFW (D. Del., Dec. 4, 2022) is brought on behalf of the
Plaintiff and other similarly situated former employees who worked
for the Defendant and who were terminated without cause as part of,
or as the result of, mass layoffs or plant closings beginning on
November 29, 2022, who were not provided 60 days advance written
notice of their terminations, as required by the Worker Adjustment
and Retraining Notification Act and the New Jersey Millville Dallas
Airmotive Plant Job Loss Notification Act, and 90 days' notice as
required by the New York Worker Adjustment and Retraining
Notification Act, the New York Labor Law, and the California Labor
Code.
The suit is a class action adversary proceeding filed against
Defendants in In re: REVERSE MORTGAGE INVESTMENT TRUST INC., et
al., Debtors, Chapter 11 Bankr. Case No. 22-11225 (MFW).
The Plaintiff was terminated along with approximately 400 other
similarly situated employees as part of, or as the foreseeable
result of mass layoffs or plant closings ordered by the Defendants.
As a consequence of that violation, Plaintiff and other similarly
situated employees of the Defendants seek their statutory remedies,
pursuant to 29 U.S.C. Section 2104.
Plaintiff Melissa Giglio was employed by Debtors as Sales
Support/Business Development from 2014 until November 29, 2022.
Reverse Mortgage Investment Trust Inc. operated as a full service,
non-bank mortgage lender that originated residential mortgages
through a national platform.[BN]
The Plaintiff is represented by:
Christopher D. Loizides, Esq.
LOIZIDES, P.A.
1225 King Street, Suite 800
Wilmington, DE 19801
Telephone: (302) 654-0248
Facsimile: (302) 654-0728
E-mail: loizides@loizides.com
- and -
Jack A. Raisner, Esq.
Rene S. Roupinian, Esq.
RAISNER ROUPINIAN LLP
270 Madison Avenue, Suite 1801
New York, NY 10016
Telephone: (212) 221-1747
Facsimile: (212) 221-1747
E-mail: rsr@raisnerroupinian.com
jar@raisnerroupinian.com
RICOLA USA: Faces Class Action Over Misleading Green Tea Labels
---------------------------------------------------------------
Abraham Jewett, writing for Top Class Actions, reports that Ricola
misleadingly represents that its green tea with echinacea throat
drops gets its cough suppressant abilities from green tea and
echinacea when their active ingredient is actually menthol, a new
class action lawsuit alleges.
Plaintiff Lonise Singo claims Ricola is attempting to capitalize on
an increasing consumer desire to purchase over-the-counter cough
and cold drugs containing botanical or plant-based ingredients.
Singo argues the Ricola green tea with echinacea throat drops
actually contain menthol as its active ingredient, with green tea
and echinacea having "no connection to the Product's function."
Ricola is also trying to take advantage of a misguided consumer
belief that echinacea and green tea have cough-suppressant
abilities, despite "no credible evidence" they are actually able to
provide that, the Ricola class action alleges.
"No credible evidence supports a connection between botanical
ingredients like echinacea and green tea and alleviating symptoms
of upper respiratory infections such as coughs," the Ricola class
action states.
Ricola accused of unjust enrichment, violating state consumer fraud
acts
Singo wants to represent a New York class and multistate consumer
fraud class of individuals who have purchased the Ricola green tea
with echinacea throat drops.
Ricola is accused of unjust enrichment and of violating the
Magnuson Moss Warranty Act, New York General Business Law and
various state consumer fraud acts.
The plaintiff is demanding a jury trial and requesting declaratory
relief along with an award of monetary, statutory and/or punitive
damages for herself and all class members.
A similar class action lawsuit was filed against Ricola in May by a
consumer arguing the company sold cough drops misleadingly marketed
as getting their therapeutic benefits from herbs.
The plaintiff is represented by Spencer Sheehan of Sheehan &
Associates PC.
The Ricola throat drops class action lawsuit is Singo, et al. v.
Ricola USA Inc., Case No. 7:22-cv-10369, in the U.S. District Court
for the Southern District of New York. [GN]
RIGOLO PRODUCTIONS: Lunnon Suit Seeks Barbacks' Unpaid Wages
------------------------------------------------------------
Brian Lunnon, on behalf of himself and others similarly situated in
the proposed FLSA Collective Action v. Rigolo Productions LLC, and
Rick Rosa, Case No. 1:22-cv-07560 (E.D.N.Y., Dec. 13, 2022) seeks
to recover unpaid minimum wages, unlawfully deducted wages,
liquidated and statutory damages, pre- and post-judgment interest,
and attorneys' fees and costs pursuant to the Fair Labor Standards
Act, the New York State Labor Law and NYLL's Wage Theft Prevention
Act.
Mr. Lunnon was employed as a barback at Defendants' performance art
space and craft cocktail lounge known as "MoonRise", located at
1329 Willoughby Ave, Brooklyn from June 2022 to August 2022. He
regularly worked 2-3 days per week, from 7:00 p.m. to 4:00 a.m. for
a total period of 18-27 hours during each of the weeks. From June
2022 to July 2022, Mr. Lunnon was paid $21 per hour for all hours
worked. The Defendants failed to pay Mr. Lunnon any wages for his
work performed from August 1, 2022 to August 31, 2022.
The Defendants allegedly required Mr. Lunnon, and all similarly
situated individuals, to pool their tips pursuant to a mandated tip
sharing scheme. The Defendants unlawfully withheld all, or nearly
all, of Plaintiff's tips, and all similarly situated individuals'
tips Defendant Description, the lawsuit claims.[BN]
The Plaintiff is represented by:
Joshua Levin-Epstein, Esq.
Jason Mizrahi, Esq.
LEVIN-EPSTEIN & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4700
New York, NY 10165
Telephone: (212) 792-0046
E-mail: Joshua@levinepstein.com
SEDGWICK CLAIMS: Faces Moscowitz Suit Over CSRs' Unpaid OT
-----------------------------------------------------------
TARRA MOSCOWITZ, on behalf of herself and all others similarly
situated, Plaintiff v. SEDGWICK CLAIMS MANAGEMENT SERVICES, INC.,
Defendant, Case No. 6:22-cv-02246 (M.D. Fla., Dec. 5, 2022) arises
from the Defendant's violation of the Fair Labor Standards Act by
failing to pay Plaintiff and the Collective Action Members for all
hours worked including all overtime hours worked and overtime pay
in excess of 40 hours in a workweek.
Plaintiff Moscowitz worked for Sedgwick as a customer service
representative from approximately August 2020 to August 2022.
Sedgwick is a global provider of technology-enabled risk, benefits
and integrated business solutions.[BN]
The Plaintiff is represented by:
Gregg I. Shavitz, Esq.
SHAVITZ LAW GROUP, P.A.
951 Yamato Road, Suite 285
Boca Raton, FL 33431
Telephone: (561) 447-8888
Facsimile: (561) 447-8831
E-mail: gshavitz@shavitzlaw.com
SENSIO INC: Defeats Class Action Over Flawed Pressure Cookers
-------------------------------------------------------------
Julie Steinberg, writing for Bloomberg Law, reports that appliance
maker Sensio Inc. defeated a proposed class suit alleging flawed
pressure cookers can be opened while the contents are still under
pressure, causing super-heated food and steam to erupt and scald
users.
Cristen Gardner said her son and his girlfriend were severely
burned by her Bella 8-Quart Electric Pressure Cooker in July 2019.
She alleged that a defective lid-locking mechanism caused the
incident.
All of her claims were dismissed on Dec. 12 by the US District
Court for the Southern District of New York.
Express warranty claims fail because she didn't notify Sensio about
the alleged breach within a reasonable time.[GN]
SILVERGATE CAPITAL: Faces Zuleta Suit Over FTX, Alameda Dealings
----------------------------------------------------------------
JOSE TOMAS SEPULVEDA ZULETA, MICHAEL LEHRER, and TRISTAN NEWMAN, on
behalf of themselves and all others similarly situated, Plaintiffs
v. SILVERGATE CAPITAL CORPORATION, ALAN J. LANE, CHRISTOPHER M.
LANE, TYLER J. PEARSON, and JASON BRENIER, Defendants, Case No.
3:22-cv-01901-L-AGS (S.D. Cal., Dec. 1, 2022) is a class action
against the Defendants for fraud, fraudulent concealment and
inducement, civil conspiracy, negligence, quasi-contract/unjust
enrichment, and violations of the California Unfair Competition
Law.
The case concerns Silvergate's conduct regarding its most notable
customer, the cryptocurrency trading exchange, FTX, which
spectacularly imploded in early November 2022, entering into
Chapter 11 bankruptcy as the result of rampant fraud and corporate
malfeasance that has seemingly left over a million debtors with
losses in the billions of dollars.
According to the complaint, Silvergate and its Chief Executive and
Risk Officers were complicit in and responsible for some of these
fraudulent losses because, in violation of its Know-Your-Customer
and Anti-Money Laundering regulatory obligations, Silvergate
knowingly or negligently permitted FTX to direct customer deposits
to Alameda Research, a hedge fund that is a wholly separate entity
also owned by FTX's founder and Chief Executive Officer, Sam
Bankman-Fried.
The Plaintiffs and all others similarly situated funded and
regularly used the FTX international trading platform to trade
cryptocurrency and other digital assets.
Silvergate Capital Corporation is the parent of Silvergate Bank, a
United States bank serving the cryptocurrency industry. Its
customers include, for example, cryptocurrency exchanges,
institutional investors, and stablecoin issuers. Some of its
notable customers are Coinbase, Paxos, Circle, Kraken, Bitstamp,
Gemini, and Crypto.com.[BN]
The Plaintiffs are represented by:
Jack Fitzgerald, Esq.
Paul K. Joseph, Esq.
Melanie Persinger, Esq.
Trevor M. Flynn, Esq.
Caroline S. Emhardt, Esq.
FITZGERALD JOSEPH LLP
2341 Jefferson Street, Suite 200
San Diego, CA 92110
Telephone: (619) 215-1741
E-mail: jack@fitzgeraldjoseph.com
paul@fitzgeraldjoseph.com
melanie@fitzgeraldjoseph.com
trevor@fitzgeraldjoseph.com
trevor@fitzgeraldjoseph.com
- and -
Timothy G. Blood, Esq.
Thomas J. O'Reardon, Esq.
James M. Davis, Esq.
BLOOD HURST & O'REARDON, LLP
501 West Broadway, Suite 1490
San Diego, CA 92101
Telephone: (619) 338-1100
E-mail: tblood@bholaw.com
toreardon@bholaw.com
jdavis@bholaw.com
SINOVAC BIOTECH: Wrongfully Diluted Equity Interests, Lerner Says
-----------------------------------------------------------------
MICHAEL S. LERNER, on behalf of himself and all other similarly
situated shareholders of SINOVAC BIOTECH LTD., Plaintiff v. SINOVAC
BIOTECH LTD. and WEIDONG YIN, Defendants, Case No.
1:22-cv-12063-NMG (D. Mass., Dec. 5, 2022) is a verified class
action complaint against Sinovac and Sinovac's founder, President,
Chief Executive Officer and Chairman Weidong Yin asserting that
Defendants wrongfully diluted the equity interests held by
Plaintiff and other public shareholders of Sinovac in violation of
the law of Antigua and Barbuda.
In the wake of the failed going private transactions, on July 2,
2018, Sinovac entered into an agreement with Vivo Capital and
Advantech (two members of Yin's 2017 buyer consortium) to issue and
sell to them 11.8 million shares of Sinovac common stock at a
purchase price of $7.35 per share in cash through a private
investment in public equity transaction, also known as the PIPE
transaction.
According to the complaint, the PIPE Transaction was an improper
transfer of economic value and voting power from public
shareholders to controlling shareholders. It constituted an act by
the Company that effected an oppressive or unfairly prejudicial
result and unfairly disregarded the interests of Sinovac's public
shareholders. Yin used his power over the business affairs of the
Company to consummate the PIPE Transaction, thereby exercising his
power as a director of Sinovac in a manner that was oppressive or
unfairly prejudicial and unfairly disregarded the interests of
Sinovac's public shareholders, the complaint adds.
As a result of the PIPE transaction however, Sinovac's public
shareholders, including Plaintiff, have been allegedly deprived of
their rightful pro rata portion of Sinovac's success, while Yin and
his cronies enjoy their outsized share, asserts the complaint.
Sinovac Biotech Ltd. is a Chinese biopharmaceutical company based
in Haidian District, Beijing that focuses on the research,
development, manufacture, and commercialization of vaccines that
protect against human infectious diseases.[BN]
The Plaintiff is represented by:
Stephen Ryan, Jr., Esq.
BEATON AND PETERSEN PLLC
11 Maple Avenue
Shrewsbury, MA 01545
Telephone: (508) 842-2540
E-mail: stephen@beatonpetersen.com
- and -
Eric L. Zagar, Esq.
Geoffrey C. Jarvis, Esq.
Maria T. Starling, Esq.
KESSLER TOPAZ MELTZER & CHECK, LLP
280 King of Prussia Road
Radnor, PA 19087
Telephone: (610) 667-7706
SPECTRUM PHARMACEUTICALS: Osorio-Franco Files Securities Class Suit
-------------------------------------------------------------------
ENRIQUE OSORIO-FRANCO, on behalf of himself and a class of
similarly situated investors, Plaintiff v. SPECTRUM
PHARMACEUTICALS, INC., THOMAS J. RIGA, FRANCOIS J. LEBEL, and NORA
E. BRENNAN, Defendants, Case No. 1:22-cv-10292 (S.D.N.Y., Dec. 5,
2022) is a securities class action on behalf of the Plaintiff and
all purchasers of Spectrum Pharmaceuticals, Inc. common stock
during the period December 6, 2021 through September 22, 2022,
inclusive, asserting Defendants' violations of the Securities
Exchange Act of 1934.
Before the Class Period, Defendants were conducting a Phase 2
clinical trial called ZENITH20. The ZENITH20 trial was an ongoing,
multicenter, multi-cohort, open-label, activity-estimating study
evaluating the anti-tumor effects, safety, and tolerability of
poziotinib, or "pozi," in patients with locally advanced or
metastatic non-small cell lung cancer that have certain mutations
(HER2 exon 20 insertion mutations) and were previously treated with
the standard of care.
During the Class Period, the Defendants represented the safety and
efficacy data from the ZENITH20 trial were positive and that they
had initiated the required confirmatory phase 3 study. However,
unknown to investors, this representation was not true. As later
revealed to investors, the data submitted by Defendants in support
of the new drug application failed to show that pozi provided a
meaningful advantage over available therapies and therefore was not
likely to provide a clinical benefit. During the Class Period, the
FDA expressed concerns regarding pozi's safety and efficacy data,
and further, the FDA expressed concern that Defendants' phase 3
confirmatory trial, which was required to be substantially enrolled
at the time of AA, had not enrolled a single patient during the
Class Period.
As a result of the alleged conduct, Spectrum stock closed at $0.47
per share as of December 5, 2022. As alleged herein, during the
Class Period, Defendants violated the federal securities laws by
making false or misleading representations or by failing to
disclose material facts they had a duty to disclose, says the
suit.
Spectrum Pharmaceuticals, Inc. purports to be a biopharmaceutical
company focused on acquiring, developing, and commercializing novel
and targeted oncology therapies.[BN]
The Plaintiff is represented by:
Jeffrey P. Campisi, Esq.
KAPLAN FOX & KILSHEIMER LLP
850 Third Avenue, 14th Floor
New York, NY 10022
Telephone: (212) 687-1980
Facsimile: (212) 687-7714
E-mail: jcampisi@kaplanfox.com
ST. LOUIS, MO: Court Dismisses Casey-El Suit Without Prejudice
--------------------------------------------------------------
Judge Audrey G. Fleissig of the U.S. District Court for the Eastern
District of Missouri, Eastern Division, dismisses without prejudice
the lawsuit titled SAMMY LEE CASEY-EL, WALTER TOLBERT, and GWEN
THOMPSON, Plaintiffs v. CITY OF ST. LOUIS DEPARTMENT OF PUBLIC
SAFETY, CIVILIAN OVERSIGHT BOARD, LOUISA LYLES, and ANTOINE MAY,
Defendants, Case No. 4:22-CV-1225-AGF (E.D. Mo.).
The matter is before the Court upon review of an Application to
Proceed in District Court Without Prepaying Fees or Costs that was
completed and signed by Plaintiff Sammy Lee Casey-El.
Invoking the Court's federal question jurisdiction, the Plaintiff
avers he brings the complaint pursuant to 42 U.S.C. Section 1983 to
redress violations of rights secured by the Fourth and Fourteenth
Amendments. The caption of the complaint lists the Plaintiff's name
along with the names of two other individuals: Walter Tolbert, and
Gwen Thompson. It appears Tolbert and Thompson signed the
complaint, but neither of them paid the required filing fee, or
filed an Application to Proceed in District Court Without Prepaying
Fees or Costs.
Judge Fleissig notes that it is apparent that the Plaintiff intends
to act as a class representative to represent Tolbert and
Thompson's interests in this action, or at least to assert claims
on their behalf. The caption of the complaint provides that "all
illegible are on Social Security income," and asks the Court to
"Certify as a class action please for all plaintiffs."
Additionally, the complaint clearly asserts claims on behalf of
persons other than the Plaintiff.
Provided with the complaint is a copy of a July 20, 2021 letter
from Louisa Lyles to Walter Tolbert. In the letter, Lyles
acknowledges receipt of a complaint directed to the City of St.
Louis Department of Public Safety Civilian Oversight Board,
identifies herself as the assigned investigator, describes the
investigation process, and instructs Tolbert to contact her for
initial instructions about how to begin the investigation.
As relief, the complaint seeks $120,000 in damages, a declaration
that Louisa Lyles and Antoine May failed its investigation
concerning officers misconduct, and a declaration that one or both
Defendants failed to ensure and or failed to enforce its own policy
that grants the Plaintiffs due process protection to being entitled
to receive the board findings.
Judge Fleissig holds that the Plaintiff lacks standing to bring
claims on behalf of others, and he offers no basis to conclude he
is a licensed attorney. Therefore, to the extent the Plaintiff
seeks to assert claims on behalf of anyone other than himself, this
action is subject to dismissal.
The complaint is also subject to dismissal because it fails to
state a claim upon which relief may be granted, Judge Fleissig
holds.
Therefore, for all of these reasons, the Court will dismiss this
action at this time, without prejudice.
Judge Fleissig also ordered that Plaintiff Sammy Lee Casey-El's
motion seeking leave to commence this action without prepaying fees
or costs is granted. The case is dismissed without prejudice.
Plaintiff Sammy Lee Casey-El's Motion to Appoint Counsel is denied
as moot. It is certified that an appeal from this dismissal would
not be taken in good faith.
A full-text copy of the Court's Memorandum and Order dated Nov. 28,
2022, is available at https://tinyurl.com/2p8nmcdr from
Leagle.com.
TRANS UNION: Faces FCRA Class Action Lawsuit in West Virginia
-------------------------------------------------------------
Accounts Recovery reports that a class-action complaint has been
filed against one of the three major credit reporting agencies,
accusing it of violating the Fair Credit Reporting Act because it
allowed a furnisher to change the date of first delinquency on the
plaintiffs' tradelines so that the debt in question remained on
their credit reports.
A copy of the complaint, filed in the District Court for the
Northern District of West Virginia can be accessed using case
number 22-cv-00149 or at
https://www.accountsrecovery.net/wp-content/uploads/2022/12/22-cv-00149.pdf
The class action was filed by Mary Beth Carder against Trans Union
LLC.
The plaintiff filed for bankruptcy protection in 2000. Her mortgage
loan was discharged in June 2000 as part of the proceedings. The
defendant began servicing the mortgage in 2019. In December 2020,
the plaintiff checked her credit report and noticed that her
mortgage was being reported with a status of "over 120 days past
due" with a past-due balance and a total balance. The defendant was
allegedly publishing the information "even though it was well past
the seven-year period in which it was allowed to report this
information," according to the complaint.
The plaintiff allegedly disputed the debt with the defendant twice,
but both times, the defendant allegedly failed to conduct a
reasonable investigation. The defendant is accused of allowing the
servicer to change the date of first delinquency to allow negative
information to remain on the plaintiff's credit report for longer
than the FCRA allows. Even though the mortgage was discharged in
bankruptcy more than two decades ago, the defendant allegedly
allowed the servicer to report a date of first delinquency of
October 2019. The defendant allegedly allows furnishers to change
the date of first delinquency without any justification or
explanation for the change.
The defendant is accused of violating Sections 1681c(a), 1681e(a),
1681e(b), and 1681i(a) of the FCRA. The complaint seeks to include
anyone where a servicer changed the date of first delinquency in
cases where the original date of first delinquency was more than
seven years old. [GN]
TSCHETTER SULZER: Court Refuses to Dismiss Warden FDCPA Suit
------------------------------------------------------------
Judge Charlotte N. Sweeney of the U.S. District Court for the
District of Colorado denies the Defendant's motion to dismiss the
lawsuit styled SHAWNTE WARDEN, individually and on behalf of all
others similarly situated, Plaintiff v. TSCHETTER SULZER, P.C., a
Colorado professional corporation, Defendant, Case No.
1:22-cv-00271-CNS-NRN (D. Colo.).
The putative class action lawsuit is brought under the Fair Debt
Collections Practices Act (FDCPA) against the Defendant, a law firm
representing Colorado landlords in evictions, regarding the use of
false representations or deceptive means when collecting a debt.
Specifically, the Plaintiff alleges that the Defendant uses a form,
Stipulation and Advisement, that misleads and deceives ordinary
consumer tenants facing eviction into believing that (1) executing
the Stipulation will permit them to occupy their residence for a
longer period of time rather than contesting eviction, and (2)
signing and complying with the Stipulation would result in any
judgment being vacated and/or eviction action dismissed. The
Plaintiff alleges that the Defendant routinely fails to vacate
judgments or dismiss eviction actions for tenants, who comply with
the terms of the Stipulation.
On Jan. 22, 2021, the Defendant filed an eviction lawsuit and
collection proceeding (unlawful detainer and money claim) against
the Plaintiff on behalf of the landlord for past due rent in the
amount of $3,545.01 plus costs and attorneys' fees. On Jan. 31,
2022, the Defendant emailed the Plaintiff with a Stipulation and
Advisement.
The Plaintiff alleges that the terms of the Stipulation and
Advisement were used to leverage payment of both unpaid rent and
additional amounts, mislead her into believing she could stay
within her rental residence for additional time, and that the money
claim against her would be dismissed upon vacating the unit. She
alleges one cause of action, violation of the FDCPA, 15 U.S.C.
Section 1692, on behalf of the class against the Defendant.
The class is defined as:
All present and former Tenants: (1) of residential rental
properties located in Colorado, (2) whose landlords or
property managers engaged Tschetter to facilitate allegedly
overdue rent collection through the initiation of eviction
collection lawsuits, (3) where Tschetter presented a
consumer tenant with its form Stipulation.
The Defendant moves to dismiss the First Amended Complaint pursuant
to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure. It argues that (1) the Court lacks subject matter
jurisdiction as the FDCPA does not apply, and (2) the Plaintiff
fails to state a claim for relief under the FDCPA.
The Defendant relies primarily upon Cook v. Hamrick, 278 F.Supp.2d
1202 (D. Colo. 2003) to support its argument that the language of
the stipulation does not constitute a consumer transaction under
the FDCPA. This argument is unavailing, Judge Sweeney holds. Cook
is not applicable to the facts in the instant case, Judge Sweeney
explains.
At the pre-discovery pleading stage, the Court finds that the
Plaintiff establishes that the Defendant is a debt collector.
The Defendant next argues that the Plaintiff is not a consumer.
Under the FDCPA, a consumer is defined as "any natural person
obligated or allegedly obligated to pay any debt." The Defendant
cites no caselaw to support its argument and again reasserts that
it was not collecting a debt under the FDCPA.
The Court finds that, at this time, the Plaintiff establishes that
she is a consumer under the Act. Accordingly, the Court finds that
it does have subject matter jurisdiction in this case.
The Defendant also argues that the Plaintiff fails to state a claim
that it violated 15 U.S.C. Sections 1692d, 1692e, 1692f, and 1692k
because she fails to sufficiently allege any collection of a debt
or identify any deceptive or abusive language.
The Plaintiff alleges in her First Amended Complaint that the
Defendant's form Stipulation was in violation of Section 1692e(5)
and (10) because it threatened to take an action that it could not
legally take or that was not intended to be taken and used false
representation or deceptive means to collect a debt.
The Defendant, citing no case law, argues that this is a basic
recitation of the elements, and that the Plaintiff fails to allege
how the Stipulation was deceptive. The Court finds this argument
unavailing and, applying the reasonable consumer standard, finds
that the Plaintiff has sufficiently alleged facts that she
interpreted the representations in the Stipulation and Advisement
to mean that she could stay within her rental residence for
additional time and that any money claims against her would be
dismissed upon vacating the unit.
The Plaintiff alleges that the Stipulation and Advisement led her
to believe that if she vacated the property by Feb. 11, 2021, the
Defendant would vacate the judgment for possession and dismiss the
eviction collection lawsuit without prejudice. The Plaintiff
complied with the terms of the Stipulation and vacated the property
on Feb. 4, 2021. The Defendant, however, did not move to vacate the
judgment and dismiss the case without prejudice until Feb. 10,
2022.
Accordingly, dismissal for failure to state a claim is
inappropriate, Judge Sweeney holds.
The Defendant argues to dismiss the remaining claims because the
Plaintiff fails to provide sufficient factual allegations. Finally,
the Defendant argues that the Plaintiff fails to state a claim that
its alleged noncompliance with the FDCPA was intentional.
The Court finds that the Plaintiff has sufficiently alleged facts
supporting her claims that the Defendant used deceptive
communications in order to attempt to collect a debt and that such
actions were intentional. The Court finds that the Plaintiff has
sufficiently alleged with particularity that the Defendant engaged
in deceptive debt collection practices and, therefore, establishes
a FDCPA claim that survives Rule 12(b)(6) scrutiny.
A full-text copy of the Court's Order dated Dec. 5, 2022, is
available at https://tinyurl.com/3apdw3s6 from Leagle.com.
TWIST BIOSCIENCE: Bids for Lead Plaintiff Appointment Due Feb. 10
-----------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized stockholder
rights law firm, on Dec. 14 disclosed that a class action lawsuit
has been filed against Twist Bioscience Corp ("Twist" or the
"Company") (NASDAQ: TWST) in the United States District Court of
Northern California on behalf of all persons and entities who
purchased or otherwise acquired Twist securities between December
13, 2019 and November 14, 2022, both dates inclusive (the "Class
Period"). Investors have until February 10, 2023 to apply to the
Court to be appointed as lead plaintiff in the lawsuit.
Twist, a Delaware corporation with its principal executive offices
in South San Francisco, California, is a biotechnology company that
manufactures synthetic DNA and DNA products. Synthetic DNA products
allow users to design and modify DNA for the purposes of academic
research, enhancing specialty chemical production, and developing
healthcare treatments, among other uses. Twist's common stock
trades in the United States on the Nasdaq Global Select Market
("NASDAQ") under the ticker symbol "TWST."
Throughout the Class Period, Defendants repeatedly assured
investors that the Company possessed innovative proprietary
technology relating to its synthetic DNA products that positioned
Twist for significant future growth. Indeed, Defendants claimed
that the Company had already achieved substantial growth during the
Class Period, growing from a customer base of approximately 1,300
diagnostic companies, hospitals, research institutions, and others
at the end of fiscal year 2019, to approximately 2,900 customers at
the end of fiscal year 2021.
Similarly, Defendants reported skyrocketing gross margins, which
purportedly grew from 12.8% in fiscal year 2019, to 39.1% in fiscal
year 2021, with margins projected to reach 40% for fiscal year
2022.
During the Class Period, Defendants also announced plans to build a
"Factory of the Future" in Wilsonville, Oregon (the "Oregon
Facility"), which would purportedly provide hundreds of jobs and
occupy 110,000 square feet. By August 2022, when Twist reported its
financial results for the third quarter of fiscal year 2022,
Defendants projected annual capital expenditures between $95
million and $100 million, largely attributable to "building out"
this new manufacturing facility.
Plaintiff and other members of the class learned the truth about
the Company's actual financial health on November 15, 2022, when
Scorpion Capital ("Scorpion") published a lengthy report (the
"Scorpion Report") alleging that Twist is "a cash-burning inferno
that is not a going concern." Specifically, Scorpion alleged that,
among other things, Twist's purported DNA chip technology is a
"farce" comparable to Theranos Inc.'s now infamous non-existent
blood-testing technology, and that the Company's growth and
revenues are unsustainable, among other issues.
According to the Scorpion Report, Twist is perpetuating its fraud
through false reporting of capital expenditures and gross
margins—which Scorpion claims are actually negative. Indeed,
Scorpion's investigation of the forthcoming Oregon Facility
revealed no evidence that the Company is preparing to begin
manufacturing there, suggesting that the Company is using the
facility to hide large operating expenses as fraudulent capital
expenditures.
Scorpion further alleged that the Company's growth is dependent
upon unsustainable pricing strategies, such as using below-cost
prices to undercut competitors by as much as 70% to 85%.
Ultimately, the Scorpion Report concluded that Twist is "operating
a Ponzi-like scheme that will end in bankruptcy."
In response to the revelations in the Scorpion Report, the price of
Twist common stock fell $7.57 per share, or nearly 20%, from a
close of $38.00 per share on November 14, 2022, to close at $30.43
per share on November 15, 2022.
This Complaint alleges that, throughout the Class Period,
Defendants made materially false and/or misleading statements, as
well as failed to disclose material adverse facts, about the
Company's business and operations. Specifically, as alleged in the
Scorpion Report, Defendants overstated the commercial viability of
Twist's synthetic DNA manufacturing technology while engaging in
accounting fraud and using unsustainable pricing to inflate the
Company's true financial condition and prospects. As a result of
Defendants' wrongful acts and omissions, and the significant
decline in the market value of the Company's common stock,
Plaintiff and other members of the Class have suffered significant
damages.
If you purchased or otherwise acquired Twist shares and suffered a
loss, are a long-term stockholder, have information, would like to
learn more about these claims, or have any questions concerning
this announcement or your rights or interests with respect to these
matters, please contact Brandon Walker or Melissa Fortunato by
email at investigations@bespc.com, telephone at (212) 355-4648, or
by filling out this contact form. There is no cost or obligation to
you.
About Bragar Eagel & Squire, P.C.:
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes.
Contacts:
Bragar Eagel & Squire, P.C.
Brandon Walker, Esq.
Melissa Fortunato, Esq.
(212) 355-4648
investigations@bespc.com
www.bespc.com [GN]
UBER TECHNOLOGIES: Josefsberg Sues Over Unfair Background Checks
----------------------------------------------------------------
DAMIAN R. JOSEFSBERG, individually and on behalf of all others
similarly situated, Plaintiff v. UBER TECHNOLOGIES, INC., and
CHECKR, INC., Defendants, Case No. 1:22-cv-23961 (S.D. Fla., Dec.
5, 2022) arises from the Defendants' negligent, unfair,
unconscionable, and deceptive practices with regard to their
background checks and identity verifications of Uber drivers in
violation of the Fair Credit Reporting Act and Florida's Deceptive
and Unfair Trade Practices Act.
Uber Technologies maintains a ride-sharing platform, similar to a
taxi service, that allows users to download its mobile application
to request rides from drivers in the area. Uber drivers are
employees and/or contractors of Uber who, according to Uber, are
required to undergo initial and routine follow-up background checks
and identity verifications for the safety of its customers. Uber
drivers are not required to maintain any specialized licensure
other than a common driver's license.
Uber, however, does not conduct background checks or identity
verifications in-house; instead, Uber outsources the background
checks and identity verifications to Checkr, a technology company
that specializes in such services. Despite its claims that every
driver must pass the background check and identity verification
before being permitted to drive for Uber, many drivers use false
information and stolen identities and become Uber drivers.
Moreover, Uber and Checkr both failed to notify Plaintiff that they
were obtaining a background report on the Plaintiff as required
under the FCRA, says the suit.
As a result, innocent people such as Mr. Josefsberg become victims
of Defendants Uber and Checkr and are left with no choice but to
deal with the consequences, which include without limitation,
hiring and paying professionals to rectify their tax filings,
credit reports, and other financial documents, the suit
asserts.[BN]
The Plaintiff is represented by:
Kenneth Dante Murena, Esq.
Connor D. Healey, Esq.
DAMIAN & VALORI LLP | CULMO TRIAL ATTORNEYS, P.A.
1000 Brickell Avenue, Suite 1020
Miami, FL 33131
Telephone: (305) 371-3960
Facsimile: (305) 371-3965
E-mail: kmurena@dvllp.com
chealey@dvllp.com
ULTA SALON: Faces Class Action Over "Session Replay" Software Use
-----------------------------------------------------------------
Kelly Mehorter, writing for ClassAction.org, reports that a
proposed class action claims Ulta Salon, Cosmetics & Fragrance,
Inc. uses "session replay" software to record website visitors'
interactions without their knowledge or consent.
The 21-page lawsuit alleges Ulta has violated the Federal Wiretap
Act and the California Invasion of Privacy Act by secretly
recording the electronic communications of anyone who visits
Ulta.com. According to the case, Ulta has embedded session replay
"spyware" within its website code, allowing it to track consumers'
mouse and scroll movements; clicks; keystrokes; search items; copy
and paste actions; information inputted into the website; and pages
and content viewed.
The suit contends that the software, which Ulta received from a
third-party provider, lets the company view each browsing session
in real-time, as if the retailer were looking over the consumer's
shoulder. Ulta uses the data it collects to create a detailed
profile of each visitor to the site, the complaint alleges.
Although session replay technology is typically used to identify
broken website features, "the extent and detail" of consumer data
collected by Ulta go far beyond the software's legitimate purpose,
the case contends. Instead, the lawsuit alleges, companies like
Ulta deploy the spyware to access an "unprecedented goldmine of
digital data" that can be used for "the interpretation of human
behavior online and shaping a future of addictive customer
experiences," according to one industry expert.
The case claims that consumers reasonably expect their visits to
Ulta.com to be private, especially since the company's website
fails to present a pop-up disclosure or consent form notifying
users that it monitors their communications.
"Moreover, the collection and storage of page content may cause
sensitive information and other personal information displayed on a
page to [leak] to third parties," the case adds. "This may expose
website visitors to identity theft, online scams, and other
unwanted behavior."
The lawsuit looks to represent anyone in the United States whose
communications were intercepted by Ulta Salon, Cosmetics &
Fragrance, Inc. or its agents. [GN]
UNITED PARCEL: Rogers Sues Over Supervisors' Unpaid OT Wages
------------------------------------------------------------
AMEN ROGERS, Individually, and on behalf of himself and others
similarly situated, Plaintiff v. UNITED PARCEL SERVICE, INC.,
Defendant, Case No. 1:22-cv-01266 (W.D. Tenn., Dec. 1, 2022) is
brought against the Defendant as a collective action under the Fair
Labor Standards Act to recover unpaid overtime compensation owed to
Plaintiff and other similarly situated hourly-paid supervisors.
Plaintiff Amen Rogers was employed by and worked for Defendant as
an hourly-paid supervisor during all times material to these
actions.
United Parcel Service, Inc. is an American multinational shipping &
receiving and supply chain management company.[BN]
The Plaintiff is represented by:
Gordon E. Jackson, Esq.
J. Russ Bryant, Esq.
Robert E. Turner, IV, Esq.
Robert E. Morelli, III, Esq.
JACKSON SHIELDS YEISER HOLT OWEN & BRYANT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 759-1745
E-mail: gjackson@jsyc.com
rbryant@jsyc.com
rturner@jsyc.com
rmorelli@jsyc.com
UNITED STATES: D.C. Court Dismisses Risenhoover v. Thomas, et al.
-----------------------------------------------------------------
Judge Amy Berman Jackson of the U.S. District Court for the
District of Columbia dismisses the case, PAUL MAAS RISENHOOVER, ex
rel Estate of Dr. KUO, et al., Plaintiffs v. KARL THOMAS, et al.,
Defendants, Civil Action No. 1:22-cv-03298 (UNA) (D.D.C.).
The matter is before Judge Jackson on her initial review of the
Plaintiffs' pro se complaint and application for leave to proceed
in forma pauperis ("IFP").
The primary Plaintiff, Mr. Risenhoover, is a resident of Taiwan,
and has filed a complaint, and an additional supplement in support,
against several federal officials and military officers. He
attempts to bring the suit as a class action on his own behalf, and
on behalf of an estate, a few other named individuals, and "60,000+
members of the Taiwan Civil Government."
Judge Jackson holds that Mr. Risenhoover cannot bring the lawsuit
as a class action, or otherwise, on behalf of other entities or
individuals. As a general rule, a pro se litigant can represent
only himself or herself in federal court. This requirement also
includes the submission of separate and individually executed IFP
applications, and in this lawsuit, only Mr. Risenhoover has done
so.
Judge Jackson further holds that the complaint and its supplement,
taken together or separately, are mostly incomprehensible. The
allegations are vague, rambling, and incongruent, consisting
primarily of his personal ruminations and speculation regarding
international political and financial policy and his pursuit of
purported secret documents and seized funds.
Neither the Court nor the Defendants can reasonably be expected to
identify the Plaintiffs' claims. The complaint also fails to set
forth allegations with respect to the Court's subject matter
jurisdiction over the Plaintiffs' entitlement to relief, if any.
For all of these reasons, Judge Jackson grants the application for
leave to proceed IFP on behalf of Mr. Risenhoover only and
dismisses the case. She denies as moot the pending motion for
CM/ECF password. A separate order accompanies this memorandum
opinion.
A full-text copy of the Court's Dec. 13, 2022 Memorandum Opinion is
available at https://tinyurl.com/5cpwyjwa from Leagle.com.
VILLAS OF HOLLY: Fails to Pay OT & Straight Time, Mitchell Alleges
------------------------------------------------------------------
DANEEN MITCHELL, Individually and on behalf of all others similarly
situated v. VILLAS OF HOLLY BROOK SENIOR LIVING, LLC, Case No.
2:22-cv-02269-CSB-EIL (C.D. Ill., Dec. 13, 2022) seeks to recover
unpaid overtime compensation, liquidated damages, and attorneys'
fees and costs pursuant to the Fair Labor Standards Act and unpaid
overtime, unpaid straight time, and liquidated damages pursuant to
the Illinois Minimum Wage Law and the Illinois Wage Payment and
Collection Act.
The Plaintiff and the Putative Collective/Class Members are
required to perform duties, whether active or inactive, during all
hours of their shift. Due to these requirements, the Plaintiff and
the Putative Collective/Class Members are frequently unable to
receive sufficient time to have an uninterrupted meal break due to
their constant patient calls and duties, the lawsuit claims.
Accordingly, Holly Brook's systematic deduction of 30 minutes each
day from the Plaintiff and the Putative Collective/Class Members'
"on-the-clock" time resulted (and continues to result) in the
Plaintiff and the Putative Collective/Class Members working
straight time hours and overtime hours for which they were (and
are) not compensated at the rates required by the FLSA and Illinois
state law. Specifically, when the Plaintiff and Putative
Collective/Class Members worked three 12-hour shifts in a week and
did not receive a meal break during any shift, Holly Brook's
deduction resulted in Plaintiff and the Putative Collective/Class
Members not being paid for one and one-half hours of compensable
straight time work, the lawsuit says.
As a result of Holly Brook's failure to compensate the Plaintiff
and the Putative Collective/Class Members for compensable work
performed "off the clock," the Plaintiff and the Putative
Collective/Class Members worked straight time hours and overtime
hours for which they were not compensated at the rates required by
the FLSA and Illinois state law, the lawsuit adds.
The Plaintiff was employed by Holly Brook in Washington, Illinois
since October of 2019 until October of 2022. The Plaintiff and the
Putative Collective/Class Members job titles include Certified
Medical Assistant, Registered Nurse, Certified Nurse Assistant, and
Licensed Practical Nurse.
The Villas of Holly Brook offers senior living in central Illinois
featuring independent, assisted living, and memory care
options.[BN]
The Plaintiff is represented by:
Ryan F. Stephan, Esq.
James B. Zouras, Esq.
Anna M. Ceragioli, Esq.
STEPHAN ZOURAS, LLP
100 N. Riverside Plaza, Suite 2150
Chicago, IL 60606
Telephone: (312) 233-1550
Facsimile: (312) 233-1560 f
E-mail: rstephan@stephanzouras.com
jzouras@stephanzouras.com
aceragioli@stephanzouras.cm
- and -
Clif Alexander, Esq.
Austin Anderson, Esq.
ANDERSON ALEXANDER, PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Telephone: (361) 452-1279
Facsimile: (361) 452-1284
E-mail: clif@a2xlaw.com
austin@a2xlaw.com
VISTA, CA: Schroeder Sues Over Failure to Pay Proper OT Wages
-------------------------------------------------------------
JEFFREY SCHROEDER, on behalf of himself and other similarly
situated individuals, Plaintiff v. CITY OF VISTA, Defendant, Case
No. 3:22-cv-01898-JO-AHG (S.D. Cal., Dec. 1, 2022) arises from the
Defendant's failure to properly calculate the "regular rate" of pay
used to calculate Plaintiff's overtime compensation under the Fair
Labor Standards Act and its failure to properly compensate
employees for compensatory time off.
The Plaintiff brings this action on behalf of himself and other
similarly situated individuals who are or were non-exempt employees
in Defendant's Fire Department at any time during the three years
preceding the filing of this action and were deprived of their
complete statutorily required overtime compensation as described in
this complaint.
City of Vista is a political subdivision of the State of
California.[BN]
The Plaintiff is represented by:
James J. Cunningham, Esq.
LAW OFFICES OF JAMES J CUNNINGHAM
10405 San Diego Mission Rd, Ste 201
San Diego, CA 92108-2174
Telephone: (858) 693-8833
E-mail: jimcunninghamlaw@gmail.com
- and -
William B. Aitchison, Esq.
PUBLIC SAFETY LABOR GROUP
3021 NE Broadway Street
Portland, OR 97232
Telephone: (866) 486-5556
E-mail: Will@PSLGlawyers.com
WELLS FARGO: Mosely Sues Over Illegal Collection of Overdraft Fees
------------------------------------------------------------------
ALEXANDRIA MOSELY, REJOYCE KEMP, BERENICE CISNEROS, BRUCE PARKER,
individually v. WELLS FARGO & CO., WELLS FARGO BANK, N.A., and DOES
1 through 5, Case No. 3:22-cv-01976-BEN-AGS (S.D. Cal., Dec. 13,
2022) seeks relief through demands to the American Arbitration
Association (AAA) the Defendants, resulting from Wells Fargo's
alleged illegal collection of overdraft fees.
The Plaintiffs do not attack the Federal Arbitration Act or the
legality of the arbitration language on its face, and do not deny
agreeing to arbitration. The Plaintiffs submitted their claims to
arbitration in the first place. But Wells Fargo won't let
Plaintiffs' claims proceed with the meaningful arbitration Wells
Fargo promised, the lawsuit says.
Wells Fargo has also allegedly breached the arbitration agreement
because it has not provided to the Plaintiffs the promised method
of quick, easy, and efficient dispute resolution. Thus, the
Plaintiffs also seek declaratory judgment that Wells Fargo has
breached the arbitration agreement and must provide the Plaintiffs
(and others) who have submitted arbitration demands the streamlined
and efficient resolution promised, the suit says.
Finally, Wells Fargo's actions amount to unfair and unlawful
business practices actionable under California's Unfair Competition
Law, California Business & Professions Code Section 17200.
Systematic obstruction and denial of the contractual right to
arbitrate is an unfair and unconscionable practice, and Plaintiffs
seek public injunctive relief consistent with Wells Fargo's
cessation of those policies, the suit adds.
Ms. Mosely filed her arbitration demand with AAA on April 13, 2022.
She was enrolled by Wells Fargo into its Regulation E Debit Card
Overdraft Protection Services program in June 2017 when she opened
her account at the branch.
On November 9, 2021, she was charged a $35.00 overdraft fee on an
ATM transaction. The fee has not been refunded. Ms. Mosley has been
charged overdraft fees on other occasions. She has not had an
arbitrator appointed, an arbitration scheduled, or been allowed to
proceed with the arbitration Wells Fargo promised.
Wells Fargo is a nationally chartered bank with over 4,700 banking
locations nationwide, including more than 12,000 automatic teller
machines (ATMs).[BN]
The Plaintiffs are represented by:
Richard D. McCune, Esq.
Steven A. Haskins, Esq.
Valerie L. Savran, Esq.
Richard A. Nervig, Esq.
Emily J. Kirk, Esq.
MCCUNE LAW GROUP, APC
3281 E. Guasti Road, Suite 100
Ontario, CA 91761
Telephone: (909) 557-1250
Facsimile: (909) 557-1275
E-mail: rdm@mccunewright.com
sah@mccunewright.com
vls@mccunewright.com
ran@mccunewright.com
ejk@mccunewright.com
XANADU MARKETING: Hall Seeks to Stay Class Certification Deadline
-----------------------------------------------------------------
In the class action lawsuit captioned as June Hall, on behalf of
herself and all others similarly situated, v. Xanadu Marketing,
Inc. d/b/a Houses Into Homes, Case No. 1:22-cv-03795-MHC (N.D.
Ga.), the Plaintiff asks the Court to enter an order staying the
deadline for which to file her motion for class certification.
The Plaintiff is currently required to move for class certification
within ninety days of the filing of her initial complaint.
The Plaintiff filed her initial complaint on September 21, 2022,
resulting in the contemplated deadline for Plaintiff to move for
class certification falling on December 20, 2022.
The Plaintiff filed her amended complaint—the operative complaint
in this matter, on October 6, 2022. On December 1, 2022, following
two unopposed extensions of time to respond to Plaintiff's amended
complaint, Xanadu filed a motion to dismiss Plaintiff's claims, and
a set of counterclaims.
Xanadu Marketing provides advertising and marketing services to
clients.
A copy of the Plaintiff's motion dated Dec. 12, 2022 is available
from PacerMonitor.com at https://bit.ly/3YlDuEc at no extra
charge.[CC]
The Plaintiff is represented by:
Rachel Berlin Benjamin, Esq.
Brian J. Sutherland, Esq.
HALL & LAMPROS, LLC
300 Galleria Pkwy SE, Suite 300
Atlanta, GA 30339
Telephone: (404) 876-8100
Facsimile: (404) 876-3477
E-mail: rachel@hallandlampros.com
brian@hallandlampros.com
- and -
Alex D. Kruzyk, Esq.
PARDELL, KRUZYK & GIRIBALDO, PLLC
501 Congress Avenue, Suite 150
Austin, TX 78701
Telephone: (561) 726-8444
E-mail: akruzyk@pkglegal.com
ZILLOW GROUP: Court Denies Motion to Dismiss Securities Class Suit
------------------------------------------------------------------
Shearman & Sterling LLP on Dec. 13 disclosed that on December 7,
2022, the United States District Court for the Western District of
Washington largely denied a motion to dismiss a putative class
action asserting claims under the Securities Exchange Act of 1934
against an online real estate listing company and certain of its
executives. Jaeger v. Zillow Group, Inc., 2022 WL 17486297 (W.D.
Wash. Dec. 7, 2022). Plaintiff alleged that the company made
misrepresentations in connection with a real estate purchasing
program. While the Court dismissed one allegation as a
non-actionable forward-looking statement, the Court held that the
remainder of plaintiff's allegations stated a claim.
The crux of plaintiff's allegations related to the company's real
estate purchasing program, in which the company used software
algorithms as part of a largely automated program to buy homes
directly from homeowners, make certain repairs, and then relist
them. Id. at *1. Plaintiff alleged that the company made statements
touting its algorithms and operations, as well as attributing its
inventory growth to increased demand, which were allegedly rendered
misleading because the company had not disclosed that it employed
"pricing overlays" that increased its bids, allegedly in order to
boost the company's market share. Id.
The Court first determined that one challenged statement that some
economic improvements were "durable" was a protected
forward-looking statement because it "deals with economic
indicators that [the company] expects to maintain in the future."
Id. at *4. The Court rejected, however, the suggestion that other
statements containing the terms "we expect," "going to be,"
"durable," or "back on track" were sufficient to make broader
statements forward-looking. Id. at *5. Rather, the Court explained
that, to be protected, the statement must be "forward-looking in
substance, not merely in form, with no separable present- or
backward-looking aspects." Id.
Thus, the Court held that statements regarding the company's
algorithms were potentially misleading because the company was
allegedly not basing its pricing and inventory decisions on the
automated algorithm but was applying overlays based on human-driven
determinations. Id. The Court also determined that challenged
statements regarding "durable operational improvements" were
potentially misleading because the company's emphasis on
cost-cutting (allegedly necessitated by paying more than market
price for properties) was not sustainable and had threatened
relationships with contractors. In addition, the Court held that
plaintiff adequately alleged that statements regarding increased
consumer demand were misleading because plaintiff alleged that the
higher volume was driven by the company's price overlays. Id. at
*7.
Moreover, the Court rejected the company's arguments that its
existing disclosures were sufficient to make plaintiff's claims
implausible. For example, the Court held that disclosures that the
company was "testing price elasticity in this hot housing market"
as it "improved [] offer strength" were not sufficient to disclose
decreased reliance on automated processes. Id. Similarly, the Court
held that disclosures of reduced payments to contractors and of the
risks associated with its reliance on "contractors, vendors, and
service providers" were not sufficient to rebut allegations that
some contractors were "refusing, stopping, or delaying jobs as a
result of the reductions" and that the lower costs "were likely not
durable." Id.
The Court also rejected the company's argument that certain
statements, such as being "back on track," were mere puffery
because they were objectively verifiable and were more than just
optimism about the future. Id. at *8.
With respect to scienter, the Court explained that plaintiff
adequately alleged that multiple former employees had indicated
that the company's senior executives possessed information that
contradicted their public statements, including based on
allegations that the company's pricing overlay strategy was
allegedly widely known internally and was discussed in meetings the
executives attended and that certain executives expressly discussed
it. Id. The Court also noted that, with respect to allegations
regarding increased inventory, one former employee allegedly
recalled a specific meeting in which one executive was asked about
the inventory backlog and responded that the company would work to
"clear the backlog" by "slowing down or stopping purchases." Id.
The Court also held that the scienter allegations were supported by
the "core operations" theory, because the home buying operation
represented 60% of the company's revenue, and the company's CEO had
returned to the company specifically to oversee this business and
claimed it was the "centerpiece of [the company's] new strategy."
Id. at *9.
Finally, the Court determined that plaintiff had adequately alleged
loss causation because the complaint contained "enough facts to
raise a reasonable expectation that discovery will reveal evidence
of loss causation." Id. at *10. In particular, the Court noted that
plaintiff sufficiently alleged that the "truth became known" as a
result of a series of partial disclosures, and that a stock price
drop followed each of those disclosures. Id. [GN]
[*] Akin Gump Attorneys Discuss Rise of Class Actions in Europe
---------------------------------------------------------------
Richard Hornshaw, Esq., Jay Jamooji, Esq., and Jordan de la Prida,
Esq., of Akin Gump Strauss Hauer & Feld consider how class actions
are changing the litigation landscape across Europe.
'Class actions' is a somewhat loaded term, which is routinely
misunderstood in the English and European Union context. It is
often said that class actions are a recent phenomenon this side of
the Atlantic. In fact, England has had 'class actions' in the sense
of multiparty and representative actions for many years. However,
recently, the class action landscape in the United Kingdom and the
EU has been developing in a way which is beginning to show at least
some similarities with, and to raise some of the same challenges
and opportunities as, the class action system in the United States.
These developments have attracted interest and support from a range
of stakeholders in a way which is contributing to one of the most
significant changes in English and EU litigation for decades.
THE RISE OF OPT-OUT CLASS ACTIONS
One of the key ways in which the UK and the EU are moving closer to
the US model for class actions is through the development of
mechanisms for bringing 'opt-out' claims. In an opt-out claim,
people within the defined class are automatically included as
claimants for the purposes of the claim, unless they positively
exercise a right to opt-out. At a stroke, this type of claim
circumvents the structural challenge -- which can be very
significant, in particular in the retail context -- of
book-building an economically viable class action.
Two years ago the European Commission enacted the Collective
Redress Directive. Under this Directive, EU member states are
required to legislate to create a mechanism for collective actions
to be filed on behalf of consumers. Although member states are free
to choose whether this mechanism is restricted to 'opt-in' class
actions, it is expected that a number of states will legislate to
allow for opt-out class actions if they haven't done so already.
The Netherlands is an example of an EU member state which is
leading the way in this regard having already legislated to allow
for opt-out class actions (the Resolution of Mass Damage in
Collective Action Act, the so-called WAMCA) and is now seeing rapid
growth in the number of class actions being brought. More than 40
cases have been filed in the Netherlands' class action register
since WAMCA was introduced. Elsewhere in the EU, the clock is now
firmly ticking as member states have until 25 December 2022 to
implement the Directive into national law (with a further six
months until the new laws take effect, on 25 June 2023).
In the UK, aggregate litigation was until recently mostly brought
under the auspices of a group litigation order but, crucially, that
was an 'opt-in' process which requires positive consent from each
member of the claimant class. However, the UK's mechanisms for
bringing opt-out class actions have recently developed through a
mixture of common law and legislation. To some extent, this has
involved the use of existing procedures, such as the
'representative action' structure, being expanded to cover new
forms of class action. However, England now has the benefit of a
true 'opt-out' regime, namely the collective proceedings order.
This mechanism was created by statute in 2015, but the first such
order was only granted in 2021 following the seminal decision of
the UK Supreme Court in Merricks v Mastercard. Importantly,
however, such orders are available only in the competition /
anti-trust law context, in cases being brought before the
Competition Appeals Tribunal. While there is a significant number
of cases which arise in this context, many of which follow-on from
cartel decisions made by the European Commission, we have also
recently seen the lure of the collective proceedings order tempt
claimants (and their backers) into seeking to bring a wider range
of types of claim under the auspices of competition law.
The broader social background is also relevant to the growth of
class actions. The increased focus on areas which naturally lend
themselves to collective redress, such as data privacy, antitrust,
securities mis-selling, product liability, employee/pensions claims
and environmental, social and governance issues (ESG) is a further
driver for claimants and other stakeholders to bring class action
claims.
THE ROLE OF LITIGATION FUNDERS
Class actions are particularly suited to third-party funding for
several reasons.
First, they are often large, complicated and lengthy claims, many
of which are testing points of law for the first time, for example,
the scope and operation of the collective proceedings orders
referred to above, or, in the context of securities mis-selling
claims, as to the scope of s.90/90A Financial Services and Markets
Act. The process of seeking to fund such claims from a large number
of individual claimants presents a significant challenge, and the
English court has recognised that the litigation funding industry
plays a valuable role in furthering access to justice in the
context of class actions. In the US, historically, class actions
were often financed by the law firms themselves, who would act on a
'no win, no fee' basis in return for a share of the damages in the
event of success. However, such 'contingent fee arrangements' were
for many years unlawful in England, and even now are only lawful
where they comply with the somewhat restrictive requirements of the
damages-based agreement regulations.
Second, such claims are of a scale which can offer potentially
lucrative returns to funders. In Merricks v Mastercard, the
claimant class is seeking damages of around GBP 14 billion (albeit
split between a class of some 46 million people). That creates an
economic case for a funder to invest the significant capital which
is required to see one of these cases through to its final
resolution. The potential rewards for funders in the US are even
greater because of the effect of punitive damages, which are
typically not available in UK or EU claims, inflating the value of
judgments or settlements.
Third, funders have been assisted by changing judicial attitudes to
the historic common law doctrines of champerty and maintenance --
an ancient public policy concern that the involvement of interested
third parties might spur frivolous litigation. A finding that a
litigation funding agreement is champertous can have serious
implications for a funder as the agreement will be declared void,
but potentially in circumstances in which the funded claimant is
not in a position to repay the invested capital. However, a number
of recent English cases have impliedly or expressly held that,
absent egregious terms, third-party funding arrangements do not
infringe English public policy. This tracks a change which has been
identified in the US too, although the position varies from state
to state. Ireland has been somewhat of an outlier in the Western
common law jurisdictions in this regard, including confirming in a
Supreme Court case in 2017 that third-party funding remained
unlawful (in Persona Digital Telephony Ltd v The Minister for
Public Enterprise). However, as recently as this September, the
Irish minister for justice, Helen McEntee, announced that Ireland
will likely introduce legislation removing the current restriction
on third-party funding, at least for international arbitrations
seated in Ireland.
The role which funders are playing in the growth of class actions
is no doubt part of the spectacular growth of the litigation
funding market as a whole. In June 2022, it was reported that UK
litigation funders' assets had hit GBP 2.2 billion in 2021,
representing an impressive ten-fold increase in value over the
previous decade (from around GBP 198 million recorded in 2011/12).
Elsewhere in the EU, the litigation market is comparatively small,
but by no means insignificant, with countries such as the
Netherlands and Germany leading the way in this regard. Both the UK
and EU markets are nevertheless small in comparison with the US,
with the US litigation funding market now reportedly being worth
around USD 12.4 billion, representing an 11% increase from the
previous year. In both markets, it has been said however that, as
macro-economic factors change, and as the world's economies move
away from a persistently low interest rate environment, we may see
some element of retrenchment.
ANY HEADWINDS?
It is of course not all one-way traffic. Those bringing - and
financing - class actions still face challenges.
On the legislative front, we have most recently seen the European
Parliament adopt a report by the German MEP Axel Voss which was
highly critical of the litigation funding industry. His report
proposes a fully regulated industry with a number of controls and
restrictions over EU funders proposed. While the jury is out on the
prospects of the Voss report ultimately leading to legislation, and
if so on what terms, it is certainly something which the funders
are keeping a weather eye on. Further, there is some concern that,
depending how it is implemented into national law, the Collective
Redress Directive may thwart the growth of the market in the EU
through some of the measures it proposes including fee caps, a
requirement for litigation funders to be authorised and the
introduction of fiduciary duties owed by funders.
Procedurally, in England, there are some issues surrounding class
action claims which both claimants and funders need to address, for
example the need to show reliance, through documentary and witness
evidence, in the context of securities mis-selling claims. Another
significant issue when litigating in a number of common law
jurisdictions (although not, typically, the US) is the risk of
adverse costs being ordered against an unsuccessful claimant. While
we have recently seen the development of an increasingly
significant and sophisticated 'after the event' costs insurance
industry, the risk of cost shifting can create significant economic
and structural challenges. Further, the ability to obtain relevant
documents from a potential defendant in order to support or
substantiate a claim is typically harder in England (and the EU)
than is the case in the US.
Judicially, while, as noted above, there has been helpful
commentary and case law in support of third-party-funded class
actions, one type of claim in particular - mass data privacy breach
claims - suffered a significant setback when the UK Supreme Court
held that the representative procedure (the quasi opt-out procedure
referred to above) was not apt for a data privacy claim. Absent
legislative change - of the type which has been seen in some US
states - claimants' lawyers have struggled to identify another
viable basis for bringing claims of those types in the UK.
Similarly, in the Netherlands, the first such claim (against Oracle
and Salesforce) was stopped at a preliminary stage by the Dutch
court (although the decision is currently subject to appeal and
expected to be heard in 2023).
In one sense, the success of the litigation funding market in the
class action space has created its own set of challenges. For
example, we are now seeing competing classes of claimants being
formed, backed by different funders. Ultimately, this situation is
likely to lead to an increase in the types of 'carriage disputes'
which are common in North America and which introduce a new
significant risk factor for funders.
CONCLUSION
In short, it is clear that, while some old challenges remain (and
some new challenges are arising), we are seeing the development of
a propitious and fertile landscape for third-party-funded group
actions both in the UK and the EU. While we remain some way away
from a US-style system, there are undoubtedly some aspects of that
process which are now becoming entrenched in the system on this
side of the Atlantic. This provides real opportunities for both
claimants and funders.
Richard Hornshaw leads Akin Gump's London disputes team, and the
firm's international disputes group, acting for a range of
financial institutions on high-value, complex and cross-border
disputes.
Jordan de la Prida is an associate in the litigation group, he
primarily specialises in data protection, group litigation and
civil fraud.
Jay Jamooji is an associate in the litigation group, she
specialises in commercial litigation, international arbitration,
civil fraud and regulatory investigations. [GN]
[*] New Australia Law Allows Unions to Bring Suits Against Cos.
---------------------------------------------------------------
Ariana Haghighi, writing for Honi Soit, reports that on November
28, 2022, the Respect At Work Bill amending the Sex Discrimination
Act 1984 passed both Houses of Parliament. It now awaits royal
assent before becoming legislation.
This landmark amendment places new duties on employers and grants
representative bodies, such as unions, the power to bring class
actions against companies based on gendered discrimination.
Employers now have a positive duty -- a high obligation -- to take
reasonable steps to eliminate sex-based harassment or
discrimination. This includes a prohibition against subjecting
their employees or contractors to hostile work conditions;
employers must actively maintain a diverse and welcoming workplace
culture.
The amendment introduces a nuanced mechanism for class actions
regarding unlawful discrimination. Prior to the amendment, unions
could make representative complaints to the Australian Human Rights
Commission on behalf of people in an organisation. However, the new
law now grants unions direct access to federal courts with powers
to bring class actions against an organisation.
The law will amend definitions to lower the threshold for criminal
offences such as harassment. Harassment on the ground of sex must
be held as "demeaning" rather than "seriously demeaning", lowering
the barriers for the prosecution to succeed. Representative bodies
can also take employers to court for victimisation -- when
employees are discriminated against after making a complaint about
workplace culture.
These changes come in the wake of the Respect@Work Sexual
Harassment National Inquiry report (2020). This report outlined the
prevalence of sexual harassment in Australian workplaces and
suggested improvements to the contemporary legislative frameworks.
The changes were a key campaign promise of the Labor Party in the
2022 Federal Election. They were passed alongside more widespread
reform to industrial relations law, including the introduction of
some forms of multi-employer bargaining.
On the increased power for unions, a spokesperson from Unions NSW
said:
"Class actions allow people with limited financial means access to
justice without imposing unreasonable financial barriers.
The capacity for organisations such as Unions NSW to more easily
form class actions is a welcome if overdue reform." [GN]
Asbestos Litigation
ASBESTOS UPDATE: J&J Takes Issue with Expert Witness Testimony
--------------------------------------------------------------
Zoey Becker writing for fiercepharma.com, reports that in the
latest twist, Johnson & Johnson (J&J) is taking issue with
testimony from an expert witness used by some plaintiffs. In a
lawsuit, J&J's bankrupt subsidiary, LTL Management, accused the
witness of falsifying information used in hundreds of talc cases.
In the filing, dated Dec. 16, J&J's subsidiary accuses Dr.
Jacqueline Moline of "knowing and repeated disparagement" of J&J's
baby powder and shower gel.
The company's attorneys cited a 2019 article published by Dr.
Moline in which she claimed that 33 individuals who used talc
powder and later developed the asbestos-related cancer mesothelioma
had no other potential exposure to asbestos.
But the company argues a September ruling by a North Carolina
federal judge found that one of the individuals listed in Moline's
report made a worker's compensation claim for asbestos exposure
other than from J&J's talc.
Dr. Moline was an expert in more than 200 mesothelioma cases and
provided trial testimony in 16 of the cases. Her report, which was
published in Journal of Occupational and Environmental Medicine,
claimed to be the first research study to link asbestos in cosmetic
talc to mesothelioma.
While it's not immediately clear where this latest lawsuit will
lead, it marks another turn after years of litigation for the
drugmaker.
While J&J has a long history selling talc-based powders, the iconic
product has been at the center of tens of thousands of lawsuits in
recent years alleging a link to cancer.
In August, the company said it would halt sales of the talc-based
powder worldwide—starting in 2023—and insisted the move was a
"commercial decision."
Last year, in a bid to reduce its losses from litigation and
settlements, J&J established a holding company, LTL Management, in
which to funnel the lawsuits and then declare it bankrupt.
In February of this year, a New Jersey judge affirmed J&J's ability
to use Chapter 11 to hasten a sweeping settlement that would
resolve the outstanding cases. But three months later, a federal
appeals court said it would revisit the case.
Johnson & Johnson paid $7.4 billion in litigation expenses between
2020 and 2021, an annual filing shows. The company cited talc
litigation as a primary driver of legal costs during both years.
ASBESTOS UPDATE: Jury Orders Avon to Pay $50MM in Talc Suit
-----------------------------------------------------------
Beautypackaging reports that last week, a California jury ordered
Avon Products Inc. (which is owned by Natura & Co.) to pay $10.3
million in punitive damages to a 76-year-old woman who blames her
cancer on talc in Avon's cosmetics.
Rita Chapman, a resident of Scottsdale, Arizona, was diagnosed with
mesothelioma in 2021. According to court filings, she'd used some
Avon powders that had high levels of asbestos. Evidence in the case
showed the company was seeking to sell out of its stocks of those
powders during the time Chapman used them.
The Los Angeles Superior Court jury that punished Avon for hiding
the risks that some of its talc-based powders can cause cancer had
already awarded Chapman $40 million in actual damages, bringing the
total in the case to more than $50 million, according to court
filings.
The $40 million award was intended to cover Chapman's pain and
medical costs tied to her battle with mesothelioma. Chapman alleged
Avon's powders contained asbestos-tainted talc that made her sick.
In Chapman's case, jurors concluded Avon management knew talc in
the company's products posed a cancer risk but failed to warn
consumers. They also found Avon executives acted with "malice,
oppression or fraud" in hiding the products' health risks. That
opened the company to the punishment award.
"We are disappointed by this verdict and will vigorously pursue all
available avenues to appeal," Avon said in a statement. "Avon is
confident that it has strong grounds for appeal and will continue
to defend its position."
This is the first such case Avon has lost in U.S. litigation. Avon
was acquired by Natura &Co in 2019.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2022. All rights reserved. ISSN 1525-2272.
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