/raid1/www/Hosts/bankrupt/CAR_Public/230110.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, January 10, 2023, Vol. 25, No. 8
Headlines
212 ONE WAY: Faces Reyes Wage-and-Hour Suit in E.D.N.Y.
ADVANCE MAGAZINE: Wins Bid to Dismiss Dodd's 1st Amended Complaint
AMICA MUTUAL: Whitehead Suit Stayed Pending Franklin v. CSAA Ruling
AVIS BUDGET: Settlement Claims Form Submission Deadline Set Feb. 28
BANK OF AMERICA: Court Issues Final Judgment in DiFlauro Class Suit
BAR LIFE: Fails to Properly Pay Bartenders, Pitt Suit Alleges
BLUETRITON BRANDS: Kerr-Smith Sues to Recover Overtime Wages
BOARDWALK PIPELINE: Delaware Sup. Ct. Flips Judgment on Call Right
BP EXPLORATION: 11th Cir. Affirms Summary Judgment in Howard Suit
BP EXPLORATION: Bid for Summary Judgment in Walker Suit Granted
CAPITAL ONE: Gonzalez Suit Removed to C.D. California
CART.COM INC: Fails to Pay Overtime Pay, Slater Suit Alleges
CHURCH & DWIGHT: Faces Phillips Wage-and-Hour Suit in N.D. Ohio
COCA-COLA CO: Lurenz Sues Over Juice Drink's All Natural Labels
COINBASE GLOBAL: Plaintiffs Delay Suit, Refuse to Give Account Info
CONNEXIN SOFTWARE: Barletti Files Suit in E.D. Pennsylvania
CROWN BATTERY: Fails to Pay Proper Wages, Zetzer Suit Alleges
DAN'S HERBS: Court Won't Review Certified Question in Budke Suit
DEUTSCHE BANK: Seeks Dismissal of Epstein Victims' Class Action
DFASS GROUP: Fails to Pay Proper Wages, Salgado Suit Alleges
DIGNITY HEALTH: Hooks' Bid to Remand Suit to Superior Court Denied
DIVERSIFIED ENERGY: McEvoy Wins Leave to File 2nd Amended Complaint
DYNASTY MARKETING: Alexander Files TCPA Suit in N.D. Georgia
DYNOMIGHTY DESIGN: Rodriguez Files ADA Suit in E.D. New York
EASTERN ACCOUNT: Kessler Files FDCPA Suit in S.D. New York
EASTPOINT RECOVERY: De Alba Files FDCPA Suit in W.D. New York
ELEVANCE HEALTH: Burrus Suit Transferred to C.D. California
EXCELHEALTH INC: Santana Files ADA Suit in N.D. New York
FCA US LLC: Seeks Dismissal of Jeep Clutch Class Action Suit
FINANCIAL BUSINESS: Handler Files FDCPA Suit in S.D. New York
G.E.S. BAKERY: Marquez Sues Over Unpaid Minimum, Overtime Wages
GAOTU TECHEDU: Faces Zhang Suit Over Drop in Share Price
GENERAC POWER: Moon Sues Over Defective PWRcell's SnapRS Units
GENESIS GLOBAL: Gemini Boss Accuses DCG CEO of "Bad Faith Tactics"
GENESIS GLOBAL: Gemini Earn Users Seek Class Action Arbitration
GEORGIA: District Court Sets Briefing Schedule in Oldaker v. Giles
GOOGLE LLC: 9th Cir. Reverses Dismissal of 3rd Amended Jones Suit
GURNEY'S INN: Petit Sues Over Unpaid Wages and Work Discrimination
HAMILTON THERAPEUTICS: Santana Files ADA Suit in N.D. New York
HAWAIIAN AIRLINES: Denies Exemption Requests to COVID Vax Policy
HEARST COMMUNICATIONS: S.D. New York Tosses Publicity Statute Cases
HERSHEY CO: Lazazzaro Sues Over Chocolates' Lead & Cadmium Content
HODINKEE INC: Tenzer-Fuchs Files ADA Suit in E.D. New York
KCI TECHNOLOGIES: Denial of Immunity in Slacas Suit Partly Upheld
KHIM'S MILLENNIUM: Fails to Pay Workers' OT Wages, Camillo Alleges
KONINKLIJKE PHILIPS: Faces Suit Over Defective Breathing Devices
LOS ANGELES, CA: Summary Judgment in Apartment Suit Reversed
M & J IRONWORKS: Underpays Construction Workers, Lunavictoria Says
MACHINERY EQUIPMENT: Acosta Sues Over Failure to Pay OT Wages
MAIN LINE HEALTH: Faces Smart Suit Over Breach of Medical Data
MOLINA HEALTHCARE: Underpays Customer Service Reps, Henderson Says
MONSCHEIN INDUSTRIES: Denial of Arbitration in Ramos Suit Upheld
MYLAN INC: Files Motion for Judgment on Pleadings in EpiPen Suit
NFL: Denial of Kashama's Objection to Concussion Suit Award Upheld
OCEAN PARK: Thurmond Class Suit Seeks Minimum & OT Wages Under FLSA
OTTAWA, ON: Taxi Industry's Discrimination Claims Goes to Court
PENNSYLVANIA: Review of DOC's Smoking Policy in Thompson Dismissed
PETS GLOBAL: C.D. California Issues Judgment in Gifford Class Suit
PROGRESSIVE PALOVERDE: Court Narrows Claims in Schroeder Class Suit
REALPAGE INC: Faces Watters Suit Over Housing Lease Monopoly
RIVERO MAINTENANCE: Fails to Pay Cleaners' OT, Cobos Suit Claims
SCHENKER INC: Mismanages 401(k) Savings Plan, Partida Suit Claims
SCRANTON, PA: Tentative Settlement in Garbage Fees' Suit Discussed
SPECTRUM BRANDS: Faces Class Action Over Contaminated Dog Treats
STARBUCKS CORP: Schleyer Sues Over Mislabeled Bagel Products
U.S. BANK: Tennessee Appeal Court Affirms Dismissal of Eudaley Suit
UNICO INTERNATIONAL: Moster Files Suit Over Unpaid Overtime Wages
UNILEVER UNITED: N.D. Illinois Grants Bid to Dismiss Castillo Suit
UNITED STATES: Court Dismisses Somerville-White v. Vilsack & USDA
UNIVERSAL CHAIN: Haser Files Suit in Cal. Super. Ct.
UNUM LIFE INSURANCE: Heritagemark Sues Over Breach Of Contract
US LEADER: Fails to Properly Pay Restaurant Staff, Richardson Says
VEGA CAPITAL: N.D. Illinois Narrows Claims in Mish Class Suit
VIRTUAL GAMING: Settles Class Action Over Virtual Coins for $20-M
VISION FINANCIAL: Kumaran Suit Transferred in D. Connecticut
WALMART INC: Bid to Stay Remand Order in Brunts Class Suit Granted
WALMART INC: N.D. California Narrows Claims in Gagetta Class Suit
WALT DISNEY: Sued Over Unlawful Wiretapping of Communication
WHOLE CART: Hinojosa Files Suit in Cal. Super. Ct.
WINDHAM PROFESSIONALS: Chaga Files FDCPA Suit in E.D. Pennsylvania
WOLVERINE WORLD: Fontanez TCPA Class Suit Remanded to State Court
WORLD FINEST: Faces Garcia Suit Over Failure to Pay Overtime Wages
YOUR FAMILY: Fails to Pay Proper Overtime Wages, Masoloko Alleges
ZERO ODOR COMPANY: Zarzuela Files ADA Suit in N.D. New York
[*] Morgan's Selectboard Votes to Join PFAS Class Action Suit
*********
212 ONE WAY: Faces Reyes Wage-and-Hour Suit in E.D.N.Y.
-------------------------------------------------------
FELIPE REYES MARTIN, JOSE ISABEL REYES, EDGAR OSVALDO VASQUEZ
COLOP, and INOCENTE FRANCISCO GUINEA GARCIA, individually and on
behalf of all others similarly situated, Plaintiffs v. 212 ONE WAY
CONSTRUCTION LLC (D/B/A ONE WAY CONSTRUCTION LLC), WAY ONE
CONSTRUCTION LLC (D/B/A ONE WAY CONSTRUCTION LLC), ARGETIM KERKUTI
A/K/A CHARLIE, and BEKIM GJEMNICA, Defendants, Case No.
1:22-cv-07985 (E.D.N.Y., December 30, 2022) is a class action
against the Defendants for violations of the New York Labor Law and
the Fair Labor Standards Act including failure to pay overtime
wages, failure to provide wage notice, failure to provide accurate
wage statements, failure to reimburse business expenses, unlawful
wage deductions, and failure to timely pay wages.
The Plaintiffs were employed by the Defendants as roof mechanics at
any time between April 2021 and May 2022.
212 One Way Construction LLC, doing business as One Way
Construction LLC, is a construction company located at 302 Hunter
Ave., Staten Island, New York.
Way One Construction LLC, doing business as One Way Construction
LLC, is a construction company located at 302 Hunter Ave., Staten
Island, New York. [BN]
The Plaintiffs are represented by:
Catalina Sojo, Esq.
CSM LEGAL, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
E-mail: catalina@csmlegal.com
ADVANCE MAGAZINE: Wins Bid to Dismiss Dodd's 1st Amended Complaint
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Judge Ronnie Abrams of the U.S. District Court for the Southern
District of New York grants the Defendant's motion to dismiss the
First Amended Class Action Complaint in the lawsuit captioned LINDA
M. DODD, AARYN JOHNSON, REGGIE HOLDER, GLORIA GARCIA, ROCHELLE
KRUGLER, LISA SHERIDAN, MYRIAM CORREA, SCOTT GERMAN, and ANN-MARIE
CARLSON, individually and on behalf of all others similarly
situated, Plaintiffs v. ADVANCE MAGAZINE PUBLISHERS INC., d/b/a
CONDE NAST, Defendant, Case No. 21-CV-8899 (RA) (S.D.N.Y.).
The Plaintiffs commenced the putative class action against
Defendant Advance Magazine Publishers Inc., d/b/a/ Conde Nast for
alleged violations of the right of publicity statutes of seven
states and Puerto Rico that make it unlawful to use the identity of
a person for commercial purposes, such as advertising, marketing,
and promotion, without their consent.
Conde Nast is a publisher of magazines, including The New Yorker,
Vanity Fair, GQ, Vogue, and Allure. Plaintiffs Linda M. Dodd, Aaryn
Johnson, Reggie Holder, Gloria Garcia, Rochelle Krugler, Lisa
Sheridan, Myriam Correa, Scott German, and Anne-Marie Carlson are
subscribers to Conde Nast publications.
According to the Complaint, Conde Nast packages information about
its subscribers into what the Plaintiffs call "Data Brokerage
Products," or subscriber lists that include subscriber names, home
addresses, and magazine subscription preferences, and then sells
that information to third parties. The third parties include,
according to the Plaintiffs, "data miners, data aggregators, data
appenders, data cooperatives, list rental recipients, list exchange
recipients, and/or list brokers."
Plaintiff Linda Dodd initiated this putative class action alleging
one cause of action under the Indiana right of publicity statute,
Indiana, Ind. Code Section 32-36-1-1, et seq. On the same day in a
different matter, Tiffani Anderson--represented by the same counsel
as the Plaintiffs here--filed a substantially similar complaint
under Alabama's right of publicity statute against Hearst
Communications, Inc., a media conglomerate also alleged to have
sold its subscriber lists to third parties (In re Hearst
Communications State Right of Publicity Statute Cases, No.
21-cv-8895 (S.D.N.Y. Dec. 15, 2022)).
The Plaintiff in this matter subsequently filed the First Amended
Complaint, joining additional named plaintiffs and adding causes of
action under seven additional right of publicity statues: Alabama,
Ala. Code Section 6-5-770, et seq.; California, Cal. Civ. Code
Section 3344; Nevada, Nev. Rev. Stat. Section 597.770, et seq.;
Ohio, Ohio Rev. Code Ann. Section 2741.01, et seq.; South Dakota,
S.D. Codified Laws Section 21-64-1, et seq.; Washington, Wash. Rev.
Code Section 63.60.010, et seq.; and Puerto Rico, P.R. Laws Ann.
tit. 32, Section 3151, et seq.
The Plaintiffs seek statutory damages and injunctive relief in each
jurisdiction, as well as punitive damages where available. Conde
Nast has since moved to dismiss the Complaint, and with the consent
of the parties, the Court heard consolidated oral argument with the
parties in this matter and in Hearst. Earlier, the Court dismissed
the plaintiffs' claims in Hearst, finding that they had failed to
state a claim under any of the right of publicity statutes.
The claims in this matter are virtually identical to those in
Hearst. In both cases, the plaintiffs allege that the defendant
magazine publishers package subscribers' names and home addresses
into "Data Brokerage Products," which they then sell to third
parties in violation of the right to publicity statutes of Alabama,
California, Indiana, Nevada, Ohio, South Dakota, Washington, and
Puerto Rico. Both complaints allege that by selling products to its
Data Brokerage Clients comprised entirely of its magazine
subscribers' identities--without their consent--the Defendant has
violated, and continues to violate, statutes governing the
misappropriation of individuals' names or likenesses.
In all respects relevant to the motion to dismiss, Judge Abrams
says the operative complaints are the same, as are the arguments
raised by the parties in both cases. The Court's analysis in
Hearst, therefore, applies here with equal force.
Accordingly, for the reasons articulated in Hearst, the Defendant's
motion to dismiss is granted. The Clerk of Court is requested to
terminate the motion pending at docket number 24 and close this
case.
A full-text copy of the Court's Memorandum Opinion & Order dated
Dec. 19, 2022, is available at https://tinyurl.com/sde7nf4t from
Leagle.com.
AMICA MUTUAL: Whitehead Suit Stayed Pending Franklin v. CSAA Ruling
-------------------------------------------------------------------
In the case, Chase Whitehead, Plaintiff v. Amica Mutual Insurance
Company, Defendant, Case No. CV-22-01978-PHX-DJH (D. Ariz.), Judge
Diane J. Humetewa of the U.S. District Court for the District of
Arizona grants the Defendant's Motion to Stay.
The Defendant sought to stay the lawsuit pending a decision from
the Arizona Supreme Court in Franklin v. CSAA General Insurance
Company, No. 2:22-cv-00540-JJT (D. Ariz. Nov. 2, 2022), on two
certified questions that are related to the Plaintiff's breach of
insurance contract and bad faith claims under A.R.S. Section
20-259.01.
The case concerns the Plaintiff's class action efforts to enforce
the Uninsured and Underinsured Motorist Coverage policies issued to
him by the Defendant.
After removing the action to federal court, the Defendant filed a
Motion to Stay pending a decision from the Arizona Supreme Court in
Franklin v on two certified questions that are related to the
Plaintiff's breach of insurance contract and bad faith claims under
A.R.S. Section 20-259.01.
The Court has already issued a stay in Creasman v. Farmers Casualty
Insurance Company, a case with a similar fact pattern. No.
2:22-cv-01820-DJH (D. Ariz. Dec. 23, 2022). Thus, Judge Humetewa
incorporates her findings in Creasman.
Courts must weigh the following "competing interests" to determine
whether to issue a Landis stay: "[1] the possible damage which may
result from the granting of a stay, [2] the hardship or inequity
which a party may suffer in being required to go forward, and [3]
the orderly course of justice measured in terms of the simplifying
or complicating of issues, proof, and question of law which could
be expected to result from a stay," citing Lockyer v. Mirant Corp.,
398 F.3d 1098, 1110 (9th Cir. 2005) (quoting CMAX, Inc. v. Hall,
300 F.2d 265, 268 (9th Cir. 1962).
Judge Humetewa holds that as they do in Creasman, the three
competing interests set forth in Lockyer weigh in favor of staying
the present proceedings. First, the Plaintiff's argument that a
stay would cause substantial and irreparable harm to the
Defendant's insureds is moot. This concern was resolved when the
parties withdrew Plaintiff's Motion for Preliminary Injunction by
stipulation. Second, absent a stay, the parties would potentially
undergo costly and unnecessary motion practice and discovery
pending the Arizona Supreme Court's resolution of issues relevant
to Plaintiff's foundational theory. Finally, a stay would promote
the orderly course of justice.
Moreover, Judge Humetewa considers Franklin to be a "lead" case for
numerous cases in the District of Arizona that raise similar issues
under A.R.S. Section 20-259.01. As noted in the Plaintiff's Notices
of Supplemental Authority, many of these cases have been stayed
pending the resolution of the certification request in Franklin.
Thus, she will stay proceedings in the present matter because it
relates to the certified questions and resolution of these
questions could similarly narrow the issues raised in the
Plaintiff's Class Action Complaint.
Accordingly, Judge Humetewa grants the Defendant's Expedited Motion
to Stay Proceedings. She stays the matter as it relates to the
Arizona Supreme Court's ultimate disposition on the district
court's request to accept and decide the certified questions
proposed in Franklin.
The parties must file a joint notice of decision within five days
of the Arizona Supreme Court's decision regarding jurisdiction over
the certified questions.
A full-text copy of the Court's Dec. 28, 2022 Order is available at
https://tinyurl.com/3rtz7jxy from Leagle.com.
AVIS BUDGET: Settlement Claims Form Submission Deadline Set Feb. 28
-------------------------------------------------------------------
Elizabeth Yuko, writing for lifehacker, reports that like airfare,
daily rates for car rentals tend to be quite a bit higher than the
advertised prices, once you factor in taxes, fees, and a variety of
surcharges. And that's not even counting extras like insurance, or
additional drivers.
Fortunately, more travel sites are including the total cost of
rentals when displaying search results, giving consumers a better
idea of what they'll actually end up paying.
But that wasn't the case for some people who rented vehicles from
Avis and Budget and received higher-than-expected bills, then filed
a class-action lawsuit against the company in 2011. It came to a
conclusion earlier this year, when the Avis Budget Group agreed to
a $45 million settlement. Here's how to find out if you're eligible
to part of that.
Why is there a class-action lawsuit against Avis and Budget?
According to the settlement website, a group of Avis and Budget
customers claim that they were billed for enrolling in an e-Toll
payment system that wasn't mentioned in their contract. The Avis
Budget Group denies any wrongdoing, but did agree to the $45
million payout to settle the lawsuit back in June.
Who can claim money from the settlement?
In order to be eligible to receive part of the $45 million
settlement, you must be a U.S. resident who rented an Avis or
Budget vehicle between April 1, 2007 and Dec. 31, 2015—unless you
rented the car in Florida, Texas, or Colorado (in which case it had
to be between March 2, 2009 to Dec. 31, 2015). Additionally, you
must have also paid Avis, Budget, or the Highway Toll
Administration for use of their e-Toll service in connection with
that rental.
How much money can customers receive from the settlement?
The amount of money you could potentially get from the settlement
depends on how many times you rented a car from Avis or Budget
during that period, and were charged for using their e-Toll
service.
More specifically, you could get up to 80% of those fees back on
your first and second eligible rentals, and up to 65% of them back
for your third through seventh eligible rentals.
The average total payouts per customer are expected to be between
$9.36 (for one eligible rental) and $46.07 (for seven eligible
rentals), according to the settlement website.
How to file a claim
There are two ways to submit a claim to part of the settlement:
1. Fill out and file this online claim form; OR
2. Download and fill out this claim form, then and mail it to:
Avis Budget Group E-Toll Settlement
c/o Settlement Administrator
1650 Arch Street, Suite 2210
Philadelphia, PA 19103
Claim forms sent by mail should be postmarked no later than
Feb. 28, 2023. Online forms must be submitted by 11:59 p.m. PT on
the same date. See the settlement website for more information.
[GN]
BANK OF AMERICA: Court Issues Final Judgment in DiFlauro Class Suit
-------------------------------------------------------------------
Judge Dale S. Fischer of the U.S. District Court for the Central
District of California, Western Division, issued a Final Judgment
and Order of Dismissal in the lawsuit captioned JOHN DIFLAURO, and
BRIAN MARTIN individually and on behalf of a class of other
similarly situated individuals, Plaintiffs v. BANK OF AMERICA,
N.A., a North Carolina Corporation, Defendant, Case No.
2:20-cv-05692 DSF (SKx) (C.D. Cal.).
The matter came before the Court for hearing pursuant to the Order
of this Court dated July 1, 2022, on the application of the Parties
for approval of the Settlement as set forth in the Settlement
Agreement and Release dated May 26, 2022, (the "Agreement"). On
July 1, 2022, the Court granted preliminary approval to the
proposed class action settlement set forth in the Agreement between
John DiFlauro and Brian Martin (the "Class Representatives"),
individually and as class representatives on behalf of the Class,
and Defendant Bank of America, N.A. ("BANA") (collectively the
"Parties").
The Court also provisionally certified the Class for settlement
purposes, approved the procedure for giving Class Notice to members
of the Class, and set a Final Approval Hearing to take place on
Dec. 12, 2022.
Based on the papers filed with the Court and the presentations made
to the Court by the Parties at the Final Approval Hearing, it
appears to the Court that the Settlement Agreement is fair,
adequate, and reasonable, and in the best interests of the
Settlement Class.
By entering this Order, the Court does not make any determination
as to the merits of the case.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the
Court finally certifies this Action as a class action, with the
Class defined as the collective group of all persons, who have or
had a California address, and at any time between June 1, 2016, and
the date of the Court's order preliminarily approving the
settlement, paid at least one transaction fee to BANA for making a
payment on a residential mortgage loan serviced by Bank of America,
N.A., by telephone, IVR, or the internet.
The Court confirms the prior appointments of the Plaintiffs John
DiFlauro and Brian Martin to serve as Class Representatives and
counsel of record representing the Class Representatives in the
Action as Class Counsel.
Pursuant to Rule 23, the Court approves the Settlement set forth in
the Agreement and finds that the Settlement is, in all respects,
fair, reasonable, and adequate to the Parties.
Final Judgment is entered with respect to the Released Claims of
all Settlement Class Members, and the Released Claims in the Action
are dismissed in their entirety with prejudice and without costs.
All claims in the Action are dismissed with prejudice. Nothing
herein is intended to waive or prejudice the rights of the Class
Members, who have timely excluded themselves from the Class, as
identified on Attachment 5 to docket No. 65-1.
The releases as set forth in Section 10 of the Agreement together
with the definitions in Sections 1.31-1.33 and 1.41 relating
thereto are expressly incorporated here in all respects and made
effective by operation of this Judgment. The Court approves the
release provisions as contained and incorporated in Section 10 of
the Agreement, including the definitions of Released Claims,
Releasors, Releasees, and Unknown Claims.
The Releasors, including the Class Representatives and all
Settlement Class Members, and anyone claiming through or on behalf
of any of them, are forever barred and enjoined from filing,
commencing, prosecuting, intervening in, or participating in (as
class members or otherwise) any action in any jurisdiction for the
Released Claims.
The Plaintiffs and Class Counsel have moved for an award of
attorney's fees, costs, and expenses. The Court has considered this
application separately from this Judgment. The Court finds that an
award of $499,054.13 in attorney's fees, costs, and expenses is
fair and reasonable, and the Court approves of Class Counsel's
attorney's fees, costs, and expenses in this amount.
The Settlement Administrator will withhold 10% of the attorney's
fees until further order of the Court. When Class Counsel provides
a declaration stating that all other terms of the settlement have
been implemented, as well as a proposed order releasing the
remainder of the fees award, the Court will issue an order
releasing the remainder of the funds.
The Court further finds that a service payment for Class
Representatives John DiFlauro and Brian Martin in the amount of
$1,500 each, is fair and reasonable, and the Court, therefore,
awards these amounts. The Court directs the Settlement
Administrator to disburse these awards to Mr. DiFlauro and Mr.
Martin as provided in the Settlement Agreement.
In the event that the Settlement does not become effective in
accordance with the terms of the Agreement, or the Agreement is
terminated pursuant to Section 13 of the Agreement, the Parties
will be restored to their respective positions in the Action prior
to the execution of the Agreement, the certification of the
Settlement Class will be automatically vacated, and this Judgment
will be rendered null and void (except Paragraph 13 of this Order
will remain in effect) to the extent provided by and in accordance
with the Agreement and will be vacated and, in any such event, all
orders entered and releases delivered in connection herewith will
be null and void to the extent provided by and in accordance with
the Agreement.
The Parties are authorized to implement the terms of the
Agreement.
Without further order of the Court, the Parties may agree to
reasonable extensions of time to carry out any of the provisions of
the Agreement.
No later than 30 days after the Effective Date (as defined in the
Agreement), the Settlement Administrator will file with the Court,
under seal pursuant to the Protective Order entered in this
litigation (in order to protect the names, addresses and other
personal information of Class Members), a list of the names and
addresses of all Members of the Class to whom Class Notice was
sent.
A full-text copy of the Court's Final Judgment and Order dated Dec.
19, 2022, is available at https://tinyurl.com/mr3mmwst from
Leagle.com.
BAR LIFE: Fails to Properly Pay Bartenders, Pitt Suit Alleges
-------------------------------------------------------------
TANIQUA PITT, on behalf of herself and all others similarly
situated, Plaintiff v. THE BAR LIFE INC. and MICHAEL LEAKS,
Defendants, Case No. 1:22-cv-07910 (E.D.N.Y., December 28, 2022) is
a class action against the Defendants for violations of the Fair
Labor Standards Act and the New York Labor Law including failure to
pay minimum wages, failure to pay overtime wages, illegal
deductions from gratuities, failure to timely pay wages, failure to
pay spread of hours, failure to provide wage notice, and failure to
provide accurate wage statements.
The Plaintiff was employed by the Defendants as a bartender in
Brooklyn, New York from February 2019 until August 19, 2022.
The Bar Life Inc. is a bar owner and operator, with its principal
place of business located at 1177 Bedford Avenue, Brooklyn, New
York. [BN]
The Plaintiff is represented by:
Yale Pollack, Esq.
LAW OFFICES OF YALE POLLACK, PC
66 Split Rock Road
Syosset, NY 11791
Telephone: (516) 634-6340
E-mail: ypollack@yalepollacklaw.com
BLUETRITON BRANDS: Kerr-Smith Sues to Recover Overtime Wages
------------------------------------------------------------
Nicholas C. Kerr-Smith, individually and on behalf of all others
similarly situated v. BLUETRITON BRANDS, INC. formerly known as
Nestle Waters North America Inc., Case No. 2:22-cv-07641 (E.D.N.Y.,
Dec. 15, 2022), is brought under the Fair Labor Standards Act and
the New York Labor Law to recover overtime wages and overtime
premium pay for the Plaintiff and similarity situated Delivery &
Sales Drivers ("DSD") in New York who work or have worked for the
Defendants.
The Plaintiff was a misclassified employee who was paid on a salary
basis but denied overtime compensation for all hours work in
excess of 40 hours per week. The Plaintiff regularly worked over 40
hours per week, but were paid a flat weekly salary with no overtime
pay at the rate of time and half of minimum wage under the NYLL.
The Plaintiff and similar situated employees are entitled payment
of overtime at a rate of one and one-half times the applicable
minimum wage, says the complaint.
The Plaintiff worked as a sales and delivery driver for the
Defendant.
The Defendant operates a program known as Ready Refresh whereby
customers can participate in a beverage delivery program to have
water and other items, including but not limited to, beverages
delivered on a regular basis.[BN]
The Plaintiff is represented by:
Nadia M. Pervez, Esq.
Aneeba Rehman, Esq.
PERVEZ & REHMAN, P.C.
6268 Jericho Turnpike, Suite 8
Commack, NY 11725
Phone: 631-824-9020
Email: info@pervezrehman.com
BOARDWALK PIPELINE: Delaware Sup. Ct. Flips Judgment on Call Right
------------------------------------------------------------------
In the lawsuit entitled BOARDWALK PIPELINE PARTNERS, LP, BOARDWALK
PIPELINES HOLDING CORP., BOARDWALK GP, LP, BOARDWALK GP, LLC, and
LOEWS CORPORATION, Defendants-Below, Appellants-Cross Appellees v.
BANDERA MASTER FUND LP, BANDERA VALUE FUND LLC, BANDERA OFFSHORE
VALUE FUND LTD., LEE-WAY FINANCIAL SERVICES, INC., and JAMES R.
McBRIDE, on behalf of themselves and similarly situated, BOARDWALK
PIPELINE PARTNERS, LP UNITHOLDERS, Plaintiffs-Below,
Appellees-Cross Appellants, Case No. 1, 2022 (Del.), the Supreme
Court of Delaware reverses the Court of Chancery of the State of
Delaware's judgment.
Among other things, the Court of Chancery concluded that the
general partner improperly exercised the call right and that the
general partner was not exculpated from damages under the
Partnership Agreement. The Court of Chancery awarded $689,827,343
in damages to the public unitholders for what it found were
improperly redeemed units.
Oil and gas pipeline businesses transport petroleum products for
their producer-customers. They often organize as Delaware Master
Limited Partnerships ("MLPs") to take advantage of tax benefits
from Federal Energy Regulatory Commission ("FERC") regulations.
Under Delaware law, the MLP sponsor can structure the
organizational agreements to permit maximum flexibility over
investments and operations.
Chief Justice Collins J. Seitz, Jr., writing for the Panel, notes
that perhaps most significantly, a sponsor can eliminate fiduciary
duties, meaning that an investor's rights are, for the most part,
limited to the four corners of the MLP agreements. It is safe to
generalize that MLP prospectuses warn of the sponsor's lopsided
rights that include their right to make self-interested decisions
to the economic disadvantage of the public investors.
The Boardwalk MLP sponsors took full advantage of the flexibility
permitted under Delaware law. The Boardwalk limited partnership
agreement (the "Partnership Agreement") disclaimed the general
partner's fiduciary duties. It included a conclusive presumption of
good faith when relying on advice of counsel. It exculpated the
general partner from damages under certain conditions. And the
sponsors disclosed the investment risks in detail to the public
investors.
At issue in this appeal is whether Boardwalk's general partner
properly exercised a call right to take the Boardwalk MLP private.
Under the Partnership Agreement, the general partner could exercise
a call right for the public units if it received an opinion of
counsel acceptable to the general partner that a change in FERC
regulations "has or will reasonably likely in the future have a
material adverse effect on the maximum applicable rate that can be
charged to customers."
The Boardwalk MLP general partner received an opinion of counsel
from Baker Botts LLP, a Texas-based law firm, that a change in FERC
policy met the call right condition (the "Baker Botts Opinion").
Skadden, a New York-based law firm, advised that (a) it would be
reasonable for the sole member, an entity in the Boardwalk MLP
structure, to determine the acceptability of the opinion of counsel
for the general partner; and (b) it would be reasonable for the
sole member, on behalf of the general partner, to accept the Baker
Botts Opinion (the "Skadden Opinion"). The sole member followed
Skadden's advice and caused the Boardwalk MLP general partner to
exercise the call right and to acquire all the public units through
a formula in the Partnership Agreement.
On May 24, 2018, two holders of common units -- the initial
plaintiffs -- filed suit in response to Boardwalk's and Loews'
disclosure that they were considering exercise of the call right.
The news caused the price of Boardwalk units to decline -- a
benefit to Loews due to the call right's pricing being based on a
trailing market average. To limit the impact of the disclosures on
the unit price, the parties entered settlement negotiations and
agreed in principle to a settlement with an exercise date on or
before June 29, 2018, reducing the negative price impact of the
call right exercise announcement to forty-four days
post-disclosure.
The current Bandera plaintiffs objected to the proposed settlement
as inadequate, and the Court of Chancery declined to approve it.
They took over the litigation from the initial plaintiffs and filed
an amended class action complaint on Oct. 14, 2020. In the amended
complaint, Bandera first alleged that Boardwalk and the General
Partner had breached the Partnership Agreement through their
exercise of the Section 15.1(b) call right without meeting the
Opinion of Counsel requirements. A second breach of contract claim
alleged that Boardwalk and the General Partner breached the
Partnership Agreement by paying a deflated price per unit upon
exercise of the call right. Bandera alleged alternatively that
Boardwalk and the General Partner had breached the implied covenant
of good faith and fair dealing by causing a decline in the price of
Boardwalk units and then paying only $12.06 per unit. Finally,
Bandera alleged tortious interference and unjust enrichment claims
against the GPGP, the Sole Member, and Loews.
In a post-trial opinion, the Court of Chancery concluded that the
general partner improperly exercised the call right because the
Baker Botts Opinion had not been issued in good faith; the wrong
entity in the MLP business structure determined the acceptability
of the opinion; and the general partner was not exculpated from
damages under the Partnership Agreement. The court awarded almost
$700 million in damages to the public unitholders for what it found
were improperly redeemed units.
On appeal, the Boardwalk entities argue that the court erred as a
matter of law and fact when it found that the Baker Botts Opinion
was not issued in good faith; erred as a matter of law when it
interpreted the acceptability requirement; should have exculpated
the general partner and others from damages; and exceeded its
discretion when awarding damages.
After its review, the Supreme Court agrees with the Boardwalk
entities that the sole member was the correct entity to determine
the acceptability of the opinion of counsel. The Supreme Court also
agrees with the Boardwalk entities that the sole member, as the
ultimate decisionmaker who caused the general partner to exercise
the call right, reasonably relied on Skadden's opinion, and that
the sole member and the general partner are, therefore,
conclusively presumed to have acted in good faith in exercising the
call right. Thus, the general partner and others were exculpated
from damages under the Partnership Agreement.
The Supreme Court reverses the Court of Chancery's judgment and
remands for further proceedings consistent with this Opinion. The
Supreme Court does not address any other arguments on appeal.
A full-text copy of the Court's Opinion dated Dec. 19, 2022, is
available at https://tinyurl.com/3c678kew from Leagle.com.
William Savitt -- WDSavitt@wlrk.com -- Sarah K. Eddy --
SKEddy@wlrk.com -- Adam M. Gogolak -- AMGogolak@wlrk.com --
Wachtell, Lipton, Rosen & Katz, in New York City; Daniel A. Mason
-- dmason@paulweiss.com -- Paul, Weiss, Rifkind, Wharton & Garrison
LLP, in Wilmington, Delaware; Stephen P. Lamb --
slamb@paulweiss.com -- Andrew G. Gordon -- agordon@paulweiss.com --
Harris Fischman -- hfischman@paulweiss.com -- Robert N. Kravitz --
rkravitz@paulweiss.com -- Carter E. Greenbaum --
cgreenbaum@paulweiss.com -- Paul, Weiss, Rifkind, Wharton &
Garrison LLP, in New York City; Srinivas M. Raju -- raju@rlf.com --
Blake Rohrbacher -- rohrbacher@rlf.com -- Matthew D. Perri --
perri@rlf.com -- John M. O'Toole -- otoole@rlf.com -- Richards,
Layton & Finger, P.A., in Wilmington, Delaware; Rolin P. Bissell --
rbissell@ycst.com -- Young Conaway Stargatt & Taylor LLP, in
Wilmington, Delaware, for Defendants Below, Appellants-Cross
Appellees Boardwalk Pipeline Partners, LP, Boardwalk Pipelines
Holding Corp., Boardwalk GP, LP, Boardwalk GP, LLC, and Loews
Corporation.
A. Thompson Bayliss -- Bayliss@AbramsBayliss.com -- J. Peter
Shindel, Jr. -- shindel@abramsbayliss.com -- Daniel G. Paterno --
paterno@abramsbayliss.com -- Eric A. Veres --
veres@abramsbayliss.com -- Samuel D. Cordle --
cordle@abramsbayliss.com -- Abrams & Bayliss LLP, in Wilmington,
Delaware, for Plaintiffs Below, Appellees-Cross Appellants Bandera
Master Fund LP, Bandera Value Fund LLC, Bandera Offshore Value Fund
Ltd., Lee-Way Financial Services, Inc., and James R. McBride, on
behalf of themselves and similarly situated Boardwalk Pipeline
Partners, LP Unitholders.
BP EXPLORATION: 11th Cir. Affirms Summary Judgment in Howard Suit
-----------------------------------------------------------------
In the lawsuit titled DANIEL HOWARD, Plaintiff-Appellant v. BP
EXPLORATION & PRODUCTION INC., BP AMERICA PRODUCTION COMPANY,
Defendants-Appellees, Case No. 22-11074 (11th Cir.), the United
States Court of Appeals for the Eleventh Circuit affirms the entry
of summary judgment in favor of BP.
The case involves case-management deadlines and the Plaintiff's
counsel's attempt to extend them. Plaintiff Howard appeals from the
entry of summary judgment on his complaint for injuries stemming
from the cleanup efforts of Defendant BP's Deepwater Horizon oil
spill disaster. The district court entered summary judgment on his
claim because Mr. Howard failed to provide expert evidence
supporting his claim.
The reason Mr. Howard failed to provide that evidence was because
his attorneys missed the filing deadline and failed to diligently
ask the Court for relief from the deadlines. His appeal primarily
concerns the district court's rulings on these two procedural
issues, which all but assured the result in the summary judgment
issue.
The Deepwater Horizon Medical Benefits Class Action Settlement
Agreement (MSA) provided class members, such as Mr. Howard, the
opportunity to sue BP for medical conditions that manifested after
the close of that class action (In re Oil Spill by the Oil Rig
"Deepwater Horizon" in the Gulf of Mexico, 295 F.R.D. 112, 119
(E.D. La. 2013)). These suits are called "BELO" or "Back-End
Litigation Option" suits. The MSA required that all BELO suits be
initially filed in the Eastern District of Louisiana, but provided
for their transfer to more appropriate venues at a later time.
In Florida, Judge M. Casey Rodgers created a master docket for the
BELO cases transferred to the Northern District of Florida (In re
Deepwater Horizon BELO Cases, No. 3:19-cv-963). On Feb. 22, 2021,
Judge Rodgers entered the first BELO case management order (CMO) in
the master docket. The CMO established the course of litigation for
the Northern District of Florida's BELO cases and set discovery
deadlines, including for expert witnesses, applicable to any
individual case where the master CMO was docketed.
In April, the district court began the process of establishing
bellwether cases for the Deepwater Horizon litigation pending in
the district. The district court issued a Revised Case Management
Order (RCMO) to the master docket on April 30, 2021, which grouped
some of the pending cases into three groups and modified deadlines
relating to these groups. The three groups were based on what type
of injury the plaintiff alleged they had suffered. The RCMO only
applied to plaintiffs represented by two law firms, who had moved
to revise the original CMO. The "Downs" plaintiffs who were all
represented by the Downs Law Group, and the "Falcon" plaintiffs,
who were represented by the Falcon Law Firm. Falcon Law Firm
represents Mr. Howard in this matter. The district court determined
to which cases the RCMO applied based on lists of cases provided by
counsel for the plaintiffs.
In late August, counsel for the Falcon plaintiffs moved to amend
the RCMO to establish bellwether cases and to stay all other cases.
After briefing and hearings the district court first issued an
Amended Revised Case Management Order (ARCMO) on Sept. 23, 2021,
and then a Corrected Amended Revised Case Management Order (CARCMO)
on Sept. 30, 2021. The CARCMO had the effect of staying all cases
alleging sinus or ocular injuries, except for the eight bellwether
cases. Cases where the plaintiffs alleged they contracted cancer
were not stayed and remained subject to the RCMO. Again, the court
relied on counsel for the two groups of plaintiffs to provide lists
of cases to be stayed, and Falcon Law Firm filed their list of
cases on Oct. 7, 2021.
Mr. Howard filed his complaint in the Eastern District of
Louisiana, pursuant to the MSA, on Dec. 11, 2020. He alleges he
contracted cancer as a result of working on the Deepwater Horizon
cleanup efforts. The case was then transferred to the Northern
District of Florida on May 6, 2021. On that day the original CMO
was entered into Mr. Howard's docket from the master BELO docket.
Under the original CMO, Mr. Howard's expert witness discovery
obligations were due on Dec. 2, 2021.
Because Mr. Howard's case was not transferred to the Northern
District of Florida until May 6, 2021, his case was obviously not
included in the original list of cases to be grouped that was filed
with the April 30th RCMO. Accordingly, the RCMO was not entered
into his docket automatically as the CMO was. His counsel, Falcon
Law Firm, did not move at the time the case was transferred to have
Mr. Howard's case added to the RCMO list.
On Sept. 28, 2021, Falcon Law Firm and BP's Lawyers filed a joint
motion to correct the ARCMO; this motion led to the CARCMO. In this
motion, they explicitly noted that Mr. Howard's case was not
subject to the ARCMO and was not subject to the RCMO before that.
Consistent with that acknowledgement, Falcon Law Firm did not
include Mr. Howard's case in its Oct. 7, 2021 filing listing cases
to be stayed pursuant to the CARCMO. Neither the ARCMO, nor the
CARACMO were filed on Mr. Howard's docket.
On Dec. 2, 2021, Mr. Howard had still not fulfilled his expert
witness discovery disclosures as required by the CMO. On that day,
his counsel, Falcon Law Firm, moved the court to include his name
in the groupings established by the RCMO and then to stay his case
pursuant to CARCMO. BP opposed this motion, and the magistrate
judge denied it on Jan. 18, 2022, citing Falcon Law Firm's lack of
diligence in moving to add Mr. Howard's case to the list in the
eight months between the transfer of Mr. Howard's case to Florida
and the December 2nd discovery deadline. The magistrate judge
explicitly considered this motion as a motion to amend the
scheduling order under Rule 16, and applied the "good cause"
standard set forth in that rule.
Then, on Feb. 1, 2022, Mr. Howard's counsel moved the court to
amend the scheduling order in Mr. Howard's case specifically and to
allow for an additional 120 days to meet the expert witness
discovery deadlines. The magistrate judge denied this motion as
well, citing Federal Rule of Civil Procedure 16's "good cause"
standard for amending scheduling orders and noting that Falcon Law
Firm had totally failed to show any diligence that would justify
good cause to amend the order. The magistrate judge noted that
"even at this late date Howard requests an additional 120 days" to
comply with his expert witness requirements. The district court
rejected Mr. Howard's objections to the magistrate judge's
decision.
After these two motions were rejected, BP moved for, and the
district court granted, summary judgment on the grounds that Mr.
Howard failed to provide expert evidence showing causation. This
appeal followed.
The Court of Appeals holds that the district court's decision to
adhere to its scheduling order and decline to amend it was not an
abuse of discretion. The record shows that Mr. Howard's attorneys
took no steps to have his case stayed in the 210 days between when
the case was transferred and the December 2nd discovery deadline.
Nor did his counsel move at any time before the December 2nd
deadline to directly alter the discovery deadline in Mr. Howard's
case.
The best explanation that his counsel provides for this lack of
action is that they believed his case was subject to the RCMO and
its amendments. They argued both to the courts below and to this
court that this was a "mistake[]." But the Court of Appeals agrees
with the magistrate judge that these claims are not credible. Mr.
Howard's counsel twice acknowledged to the district court in the
leadup to the CARCMO that Mr. Howard's case would not be subject to
the stay. In fact, even were it subject to CARCMO, the magistrate
judge's report found that Mr. Howard's case would not even be
subject to the stay because Mr. Howard had the type of injuries
that were not going to be stayed by the CARCMO.
According to the Court of Appeals, it was Mr. Howard's burden to
show that his counsel had acted diligently despite their failure to
meet the deadlines in the scheduling order. The record supports the
magistrate judge's conclusions that neither attempt to amend the
scheduling order in this case was supported by a showing of
diligence. Even on appeal Mr. Howard does not explain what steps he
has taken to obtain an expert witness.
The Court of Appeals points out that the district court's decision
to overrule any objection to the magistrate judge's order, and to
enforce its scheduling order in this case was not an abuse of
discretion.
Mr. Howard's argument that the Court of Appeals should reverse the
grant of summary judgment was contingent its finding error in the
district court's enforcement of the scheduling order. Because the
Court of Appeals affirms the district court's refusal to extend the
time to comply with the expert witness requirements of the MSA,
there are no grounds to reverse the grant of summary judgment.
Accordingly, the Court of Appeals affirms.
Affirmed.
A full-text copy of the Court's Opinion dated Dec. 19, 2022, is
available at https://tinyurl.com/bde5s4rx from Leagle.com.
BP EXPLORATION: Bid for Summary Judgment in Walker Suit Granted
---------------------------------------------------------------
In the case, ALLEN WALKER, ET AL. v. BP EXPLORATION & PRODUCTION
INC., ET AL., Civil Action No. 17-3012 (E.D. La.), Judge Lance M.
Africk of the U.S. District Court for the Eastern District of
Louisiana:
a. grants the Defendants' motion in limine to exclude the
causation testimony of Dr. Jerald Cook;
b. denies the Plaintiffs' motion to supplement their expert
report;
c. denies the Plaintiffs' motion for admission of their expert
report; and
d. grants the Defendants' motion for summary judgment and
dismisses the Plaintiffs' claims with prejudice.
Before the Court is a motion in limine to exclude the opinions of
the Plaintiffs' medical causation expert, Cook, filed by
Defendants, BP Exploration & Production, Inc.; BP America
Production Co.; BP p.l.c.; Transocean Ltd.; Transocean Offshore
Deepwater Drilling, Inc.; Transocean Deepwater, Inc.; Transocean
Holdings, LLC; Triton Asset Leasing GmbH; and Halliburton Energy
Services, Inc. The Defendants have also filed a motion for summary
judgment contending that, if the Court grants the Defendants'
motion in limine, then summary judgment will also be warranted
because Plaintiffs Allen Walker and Roxanne Walker (collectively,
"Plaintiffs"), will lack expert testimony necessary to prove
causation. The Plaintiffs oppose both motions.
Also before the Court is the Plaintiffs' motion to supplement the
expert report of Dr. Rachael Jones, and their motion for admission
of their expert opinions because of BP Defendants' spoliation of
evidence of the Plaintiff's exposure. The Defendants oppose both
motions.
The instant action is a "B3" case arising out of the 2010 Deepwater
Horizon oil spill in the Gulf of Mexico. B3 cases involve claims
for personal injury and wrongful death due to exposure to oil
and/or other chemicals used during the oil spill response (e.g.,
dispersant).
In the course of the MDL proceedings, Judge Barbier approved the
Deepwater Horizon Medical Benefits Class Action Settlement
Agreement, which included a Back-End Litigation Option ("BELO")
permitting certain class members to sue the defendants for
later-manifested physical conditions. The B3 plaintiffs, by
contrast, either opted out of the class action settlement agreement
or were excluded from its class definition. To prevail on their
claims, the B3 plaintiffs must prove that the legal cause of the
claimed injury or illness is exposure to oil or other chemicals
used during the response.
Walker was employed in BP's "Vessels of Opportunity" program, which
performed response activities during the oil spill. He alleges that
he was exposed to oil and dispersants during those response
activities. Walker is also a long time champion scuba diver who
often spear-fishes and also engages in underwater photography and
videography in the Gulf of Mexico. He alleges that due to
representations made in the press by BP that Gulf waters were safe,
he continued diving in the Gulf during the oil spill and came into
contact with hydrocarbons and dispersants. He further alleges that
after this exposure, he began experiencing a variety of adverse
health effects. Roxanne Walker, Walker's spouse, asserts a loss of
consortium claim based on Walker's injuries.
Like other B3 plaintiffs, Walker provides medical causation
analysis completed by Cook to support his claim that exposure to
oil and dispersants caused his health problems. In many B3 cases,
Cook has issued only a general causation report. In Walker's case,
Cook has issued both a general causation report and a specific
causation report.
BP previously moved for partial summary judgment in this case,
arguing that Walker had only submitted sufficient specific
causation expert testimony as to his chronic dermatitis. The Court
granted that motion in part and denied it in part, holding that
expert testimony is required to support specific causation for
alleged chronic medical conditions, or those that Walker alleges
persisted for extended periods of time. It noted, however, that to
the extent that Walker intends to allege that he suffered some of
his claimed health issues concurrently with, or immediately after,
exposure, expert testimony as to general causation plus specific
evidence regarding the nature of his exposure might be sufficient
The Court determined that Walker had presented sufficient specific
causation expert testimony supporting his chronic dermatitis
allegation, but reserved decision as to which of the remaining
health issues would require expert testimony to establish specific
causation. It also noted that defendants had indicated that they
planned to challenge the reliability of Cook's general causation
report, and therefore reserved decision on the issue of whether
Walker had presented sufficient expert evidence as to general
causation for all alleged ailments. The Defendants now ask this
Court to exclude Cook's general causation report as unhelpful and
unreliable.
Cook is a retired Navy physician, a fellow of the American College
of Occupational and Environmental Medicine, and is board certified
in occupational medicine, public health, and general preventative
medicine. Cook's general causation report utilized a general
causation approach to determine if a reported health complaint can
be from the result of exposures sustained in performing cleanup
work and to assess the likelihood that occupational exposures that
occurred during work in oil spill cleanup caused disease,
contributed to the development of disease, affected the severity of
disease, or exacerbated preexisting disease that workers have
associated with potential exposures.
Cook's report is organized into five chapters. The first chapter
outlines Cook's qualifications. The second chapter provides
background on the Deepwater Horizon oil spill. The third chapter
describes Cook's methodology. The fourth chapter of Cook's report
recounts the history of oil spills and related clean-up efforts and
analyzes prior studies on the health effects associated with
exposure to oil. Finally, the fifth chapter contains Cook's
opinions on general causation for four categories of medical
conditions: (1) respiratory conditions; (2) dermal conditions; (3)
ocular conditions; and (4) cancers. Ultimately, Cook concludes that
a general causation analysis indicates that these acute and chronic
respiratory, dermal, ocular conditions can occur in individuals
exposed to crude oil, including weathered crude oil, during oil
spill response and cleanup work.
First, Judge Africk examines the Defendants' Motion in Limine. He
finds that Cook's failure to identify a harmful level of exposure
when evaluating the scientific literature referenced in his report
renders his opinions unhelpful and unreliable in establishing
general causation. He therefore concludes that Cook's opinions are
inadmissible. With Cook's report excluded, Walker cannot establish
general causation, and Judge Africk therefore finds it unnecessary
to reach the parties' arguments as to specific causation.
Second, Judge Africk examines Walker's Motion to Supplement Expert
Report and determines that it should be denied. In considering the
Plaintiffs' motion, he considers: (1) the importance of the
proposed testimony, (2) the party's explanation for its failure to
comply with the court's scheduling order, (3) the potential
prejudice that would arise from allowing the testimony, and (4) the
availability of a continuance to cure such prejudice.
He finds that (1) the importance of the proposed supplemental
report is minimal; (2) the Plaintiffs' explanation for their
failure to comply with the scheduling order therefore weighs
against allowing the supplemental report; (3) an untimely expert
report that requires an opposing party to conduct additional
discovery and otherwise disrupts preparation and strategy may be
prejudicial; and (4) a continuance that results in unnecessary
delay and expense and forces a party to prepare for trial once more
causes prejudice.
Third, Judge Africk examines the Plaintiffs' Spoliation
Allegations. He finds that the Plaintiffs' spoliation argument is
without merit. The Plaintiffs provide no legal support for their
theory that admission of an otherwise inadmissible expert report is
an appropriate remedy for alleged spoliation. Moreover, for the
reasons set out in this opinion, the flaws in Cook's general
causation report are unrelated to the Defendants' failure to
perform dermal monitoring of oil spill workers. The motion for
admission of Cook's report due to the Defendants' alleged
spoliation is therefore denied.
Finally, having determined that Cook's report should be excluded,
and that the Plaintiffs' motion to supplement their expert report
should be denied, Judge Africk now turns to the Defendants' motion
for summary judgment. The issue of general causation is a necessary
element of the Plaintiffs' claims against the Defendants. He finds
that Cook is Walker's sole expert on general causation. With Cook's
opinion on general causation now excluded, Walker lacks expert
testimony with respect to general causation. As a result, Walker
has failed to present a genuine issue of material fact with respect
to his claims that his injuries were caused by exposure to oil and
dispersants. Accordingly, the Defendants are entitled to summary
judgment.
A full-text copy of the Court's Dec. 28, 2022 Order & Reasons is
available at https://tinyurl.com/wyca3rhe from Leagle.com.
CAPITAL ONE: Gonzalez Suit Removed to C.D. California
-----------------------------------------------------
The case captioned as Alyssa Gonzalez, individually and on behalf
of all, others similarly situated v. CAPITAL ONE FINANCIAL
CORPORATION, Case No. 2022-021725-CA-01 was removed from the
Eleventh Judicial Circuit Court, in and for Miami-Dade County,
Florida, to the United States District Court for the Central
District of California on Dec. 21, 2022, and assigned Case No.
1:22-cv-24160-BB.
On November 14, 2022, Plaintiff sued Capital One for violations
under the Florida Telephone Solicitation Act.[BN]
The Defendant is represented by:
Aaron S. Weiss, Esq.
Joseph W. Swanson, Esq.
James S. Czodli, Esq.
CARLTON FIELDS, P.A.
700 N.W. 1st Ave., Ste. 1200
Miami, FL 33136
Phone: 305-530-0050
Email: aweiss@carltonfields.com
JSwanson@carltonfields.com
JCzodli@carltonfields.com
CART.COM INC: Fails to Pay Overtime Pay, Slater Suit Alleges
------------------------------------------------------------
ANTONIO SLATER, individually and on behalf of other similarly
situated, Plaintiff v. CART.COM, INC.; and FB FLURRY, LLC,
Defendants, Case No. 2:22-cv-02872 (W.D. Tenn., Dec. 28, 2022) is
an action against the Defendants' failure to pay the Plaintiff and
the class overtime compensation for hours worked in excess of 40
hours per week.
Plaintiff Slater was employed by the Defendants as warehouse
staff.
CART.COM, INC. provides an enterprise e-commerce storefront
software platform. The Company offers end-to-end integration
platform that enables brands to simplify their technology stack and
refocus their efforts on their growth goals and mission. [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) 754-8524
Email: gjackson@jsyc.com
rbryant@jsyc.com
rturner@jsyc.com
rmorelli@jsyc.com
CHURCH & DWIGHT: Faces Phillips Wage-and-Hour Suit in N.D. Ohio
---------------------------------------------------------------
LARRY PHILLIPS, individually and on behalf of all others similarly
situated, Plaintiff v. CHURCH & DWIGHT CO., INC., Defendant, Case
No. 3:22-cv-02326-JZ (N.D. Ohio, December 28, 2022) is a class
action against the Defendant for failure to pay overtime wages and
failure to timely pay wages in violation of the Fair Labor
Standards Act and the Ohio Revised Code.
The Plaintiff was employed by the Defendant as a material handler
from approximately June 2021 to October 2022.
Church & Dwight Co., Inc. is an American consumer goods company,
headquartered in New Jersey. [BN]
The Plaintiff is represented by:
Hans A. Nilges, Esq.
Shannon M. Draher, Esq.
7034 Braucher Street, N.W., Suite B
North Canton, OH 44720
Telephone: (330) 470-4428
Facsimile: (330) 754-1430
E-mail: hans@ohlaborlaw.com
sdraher@ohlaborlaw.com
COCA-COLA CO: Lurenz Sues Over Juice Drink's All Natural Labels
---------------------------------------------------------------
JOSEPH LURENZ, individually and on behalf of all others similarly
situated, Plaintiff v. THE COCA-COLA COMPANY and THE SIMPLY ORANGE
JUICE COMPANY, Defendants, Case No. 7:22-cv-10941 (S.D.N.Y.,
December 28, 2022) is a class action against the Defendants for
breach of express warranty, fraud, constructive fraud, unjust
enrichment, and violations of the Magnuson-Moss Warranty Act and
the New York Deceptive Trade Practices Act.
According to the complaint, the Defendants are engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
the Simply Tropical juice drink. The Defendants advertised and
labeled the product as an "All Natural" juice drink. In reality,
the Plaintiff's testing has revealed that the product contains per-
and polyfluoralkyl substances (PFAS), a category of synthetic
chemicals that are, by definition, not natural. As a result of the
Defendants' misconduct, the Plaintiff and putative Class members
have suffered injury in fact, including economic damages, says the
suit.
The Coca-Cola Company is a beverage corporation, headquartered in
Atlanta, Georgia.
The Simply Orange Juice Company is a wholly owned subsidiary of The
Coca-Cola Company with its corporate headquarters located in
Apopka, Florida. [BN]
The Plaintiff is represented by:
Jason P. Sultzer, Esq.
Daniel Markowitz, Esq.
THE SULTZER LAW GROUP P.C.
85 Civic Center Plaza, Suite 200
Poughkeepsie, NY 12601
Telephone: (845) 483-7100
Facsimile: (888) 749-7747
E-mail: sultzerj@thesultzerlawgroup.com
markowitzd@thesultzerlawgroup.com
- and -
Nick Suciu III, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
6905 Telegraph Road, Suite 115
Bloomfield Hills, MI 48301
Telephone: (313) 303-3472
E-mail: nsuciu@milberg.com
- and -
Gary Klinger, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
221 West Monroe Street, Suite 2100
Chicago, IL 60606
Telephone: (866) 252-0878
E-mail: gklinger@milberg.com
- and -
Erin Ruben, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC
900 W. Morgan Street
Raleigh, NC 27603
Telephone: (919) 600-5000
E-mail: eruben@milberg.com
- and -
J. Hunter Bryson, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
405 E. 50th Street
New York, NY 10022
Telephone: (630) 796-0903
E-mail: hbryson@milberg.com
COINBASE GLOBAL: Plaintiffs Delay Suit, Refuse to Give Account Info
-------------------------------------------------------------------
Mehron Rokhy, writing for The Daily Hold, reports that the
plaintiffs behind a class action lawsuit against Coinbase who
incurred losses from the unauthorized transfer of crypto assets are
reportedly stalling the case.
According to a new report by Bloomberg Law, the Coinbase customers
that are suing the top US-based crypto exchange are refusing to
release relevant account information, delaying the proceedings.
Bloomberg Law reports that the plaintiffs have agreed to release
the information, which includes emails, usernames and Ethereum
(ETH) addresses, in exchange for a court-mandated protective
order.
However, Coinbase recently said it doesn't agree with the
customers' request to include a provision in the court order that
states the firm will waive its right to arbitration, which is
included in its terms of service as the standard method for solving
disputes that arise with customers.
Coinbase says that without the account information, it cannot
correctly match plaintiffs to their respective agreements and
compel arbitration, effectively postponing the lawsuit.
As stated by Coinbase in an emergency motion filed in November,
"Refusal to provide this basic information is an improper attempt
to undermine Coinbase's right to compel arbitration under the
Federal Arbitration Act."
The class action lawsuit was originally filed in August by Coinbase
customer George Kattula. In it, a group of customers claim that the
crypto exchange had inadequate security measures which failed to
prevent illicit transfers of their digital assets.
Kattula, who filed the lawsuit on behalf of the plaintiffs, claims
that bad actors siphoned $6,000 worth of his digital assets from
Coinbase to unknown wallets due to the platform's insufficient
security. [GN]
CONNEXIN SOFTWARE: Barletti Files Suit in E.D. Pennsylvania
-----------------------------------------------------------
A class action lawsuit has been filed against Connexin Software,
Inc. The case is styled as Kazandra Barletti, individually, as a
natural parent and next friend OF A.B.T., a minor, and on behalf of
all others similarly situated v. Connexin Software, Inc. doing
business as: Office Practicum, Case No. 2:22-cv-04979-JDW (E.D.
Pa., Dec. 14, 2022).
The nature of suit is stated as Other Fraud.
Connexin Software doing business as Office Practicum --
http://officepracticum.com/-- is a provider of electronic medical
records and practice management systems for use in pediatric
clinical settings.[BN]
The Plaintiff is represented by:
Jonathan Shub, Esq.
Benjamin F. Johns, Esq.
SHUB LAW FIRM LLC
134 Kings Highway, Second Floor
Haddonfield, NJ 08033
Phone: (856) 772-7200
Email: ecf@shublawyers.com
bjohns@shublawyers.com
- and -
Marc H. Edelson, Esq.
EDELSON LECHTZIN LLP
411 S. State Street, Ste. N-300
Newtown, PA 18940
Phone: (215) 867-2399
Fax: (267) 685-0676
Email: medelson@edelson-law.com
The Defendant is represented by:
Abraham J. Rein, Esq.
Andrea Meryl Kirshenbaum, Esq.
Jennifer Nix Capozzola, Esq.
POST & SCHELL PC
Four Penn Center 14th Fl
1600 John F Kenndy Blvd.
Philadelphia, PA 19103
Phone: (215) 587-1057
Email: arein@postschell.com
akirshenbaum@postschell.com
jcapozzola@postschell.com
CROWN BATTERY: Fails to Pay Proper Wages, Zetzer Suit Alleges
-------------------------------------------------------------
TIFFANY ZETZER, individually and on behalf of all others similarly
situated, Plaintiff vs. CROWN BATTERY MANUFACTURING COMPANY,
Defendant, Case No. 3:22-cv-02329-JZ (N.D. Ohio, Dec. 28, 2022)
seeks to recover from the Defendants unpaid wages and overtime
compensation, interest, liquidated damages, attorneys' fees, and
costs under the Fair Labor Standards Act.
Plaintiff Zetzer was employed by the Defendant as staff.
CROWN BATTERY MANUFACTURING COMPANY designs, manufactures, and
distributes batteries, chargers, and accessories. The Company
offers its products to cars, trucks, heavy-duty equipment, golf and
electric vehicles, renewable energy systems, floor care equipment,
marine and recreational equipment, and aerial access equipment.
[BN]
The Plaintiff is represented by:
Robi J. Baishnab, Esq.
NILGES DRAHER LLC
1360 East 9th Street, Ste. 808
Cleveland, OH 44114
Telephone: (216) 230-2944
Facsimile: (330) 754-1430
Email: rbaishnab@ohlaborlaw.com
DAN'S HERBS: Court Won't Review Certified Question in Budke Suit
----------------------------------------------------------------
In the case, NATHAN BUDKE, an individual, and all those similarly
situated, Respondent v. DAN'S HERBS, LLC, d.b.a. HIGHER LEAF
MARIJUANA BOUTIQUE, a Washington limited liability company; FIVE
STAR TRADING COMPANY, LLC, d.b.a. HIGHER LEAF, a Washington limited
liability company; and MOLLY HONIG, DANIEL DUBOIS, BEVERLY
KELLEHER, DAVE MILLS, and CATHERINE SCHULTZ, each an individual,
and their respective marital communities, Appellants, Case No.
82970-0-I (Wash. App.), the Court of Appeals of Washington,
Division One, holds that the certified question is not reviewable
as a question of law and remand for further proceedings.
The Court of Appeals enters an Opinion concluding that the
certified question on whether a consumer consents to receive
commercial messages under Washington's commercial electronic mail
act (CEMA), chapter 19. 190 RCW, is not reviewable as a question of
law under RAP 2.3(b)(4).
In July 2020, Budke visited Higher Leaf in Kirkland, a cannabis
shop owned by Dan's Herbs. While making a purchase, Budke gave his
cell phone number to Higher Leaf "after a salesperson invited him
to join the rewards program." In the weeks following, Budke
received at least three text messages from Higher Leaf promoting
its brand and cannabis products. Higher Leaf sent each of the text
messages en masse to its "former, current, and potential
customers."
In February 2021, Budke filed a class-action lawsuit against Dan's
Herbs d/b/a Higher Leaf; Five Star Trading Co. LLC d/b/a Higher
Leaf; Dan's Herbs and Five Star owners Molly Honig, Daniel Dubois,
and Beverly Kelleher; and Five Star owners Dave Mills and Catherine
Schultz (collectively Dan's Herbs). Budke claimed that by sending
"unsolicited" texts, Dan's Herbs violated CEMA.
Dan's Herbs moved to dismiss Budke's complaint for failure to state
a claim for which a court could grant relief under CR 12(b)(6). It
argued that Budke consented to receive the texts under CEMA,
chapter 19. 190 RCW, by voluntarily providing Higher Leaf his cell
phone number. Budke opposed the motion to dismiss, arguing that
voluntarily providing a cell phone number does not amount to
"consent" to receive commercial "telemarketing text-spamming"
messages under CEMA.
The trial court denied the motion to dismiss. It concluded that the
allegations in the complaint and hypothetical facts that might flow
from those allegations stated a claim for which the court could
grant relief with respect to the scope of the consent that was
given by Budke and whether the subsequent communications from Dan's
Herbs exceeded that scope.
Dan's Herbs then sought RAP 2.3(b)(4) certification for review.
Budke did not oppose the motion. The trial court stayed the case
and certified the question of whether Budke provided his consent to
receive commercial text messages under CEMA by voluntarily
providing his cell phone number during the course of a commercial
transaction. Dan's Herbs then moved the Court for discretionary
review of that certified question. A commissioner granted review.
The Court of Appeals opines that whether a consumer consents to
receive commercial messages under CEMA is a question of fact based
on the totality of the circumstances. It concludes that the
certified question is not reviewable as a question of law under RAP
2.3(b)(4) and remands for further proceedings.
A full-text copy of the Court's Dec. 27, 2022 Opinion is available
at https://tinyurl.com/sury2d6x from Leagle.com.
Nathan Paine -- npaine@karrtuttle.com -- Karr Tuttle Campbell, 701
5th Ave Ste 3300, Seattle, WA, 98104-7055, Daniel Tristan Hagen,
Attorney at Law, 701 5th Ave Ste 3300, Seattle, WA, 98104-7055,
Maria Yvonne Hodgins -- mhodgins@karrtuttle.com -- Karr Tuttle
Campbell, 701 5th Ave Ste 3300, Seattle, WA, 98104-7055, Jacquelyn
A. Beatty -- jbeatty@karrtuttle.com -- Karr Tuttle Campbell, 701
5th Ave Ste 3300, Seattle, WA, 98104-7055, Counsel for the
Petitioner(s).
Brian Cameron -- bcameron@cameronsutherland.com -- Attorney at Law,
421 W Riverside Ave Ste 660, Spokane, WA, 99201-0410, Kirk David
Miller, Kirk D. Miller, P.S., 421 W Riverside Ave Ste 660, Spokane,
WA, 99201-0410, Christopher Michael Hogue --
chris@spokaneadvocate.com -- Hogue Law Firm, 421 W Riverside Ave
Ste 660, Spokane, WA, 99201-0410, Counsel for the Respondent(s).
DEUTSCHE BANK: Seeks Dismissal of Epstein Victims' Class Action
---------------------------------------------------------------
Bloomberg News reports that Deutsche Bank AG and JPMorgan Chase &
Co. have asked a federal court to throw out lawsuits filed by
Jeffrey Epstein's victims accusing the banks of enabling the late
pedophile's sex trafficking network.
In motions to dismiss the class action suits, lawyers for Deutsche
Bank said the claims did not "come close to adequately alleging"
that the bank, which provided banking services to Epstein between
2013 and 2018, was part of his sexual abuse ring.
"All of the plantiff's claims are deficient and none can be
maintained," the motion, filed on Dec. 30, states.
The victims filed legal action against JPMorgan and Deutsche Bank
in November, alleging Epstein's sex trafficking enterprise could
not have "existed or flourished" without the complicity of the
banks.
Epstein was charged with sex trafficking in 2019 but found dead in
his prison cell in New York weeks later. His former girlfriend,
Ghislaine Maxwell, was convicted of similar charges last December.
During her trial, a JPMorgan banker testified that Epstein wired
her $31 million, money prosecutors characterized as Maxwell's
payment for procuring young girls for the financier.
In the current civil case, Epstein's victims accused JPMorgan of
"financially benefiting from participating" in Epstein's sex
trafficking through providing financial support from 1998 to August
2013. Deutsche Bank was accused of knowing it would earn millions
of dollars from its relationship with Epstein.
The suits, filed separately in federal court in Manhattan, are
seeking unspecified damages for violations of sex trafficking and
racketeering laws and the newly-enacted New York Adult Survivor's
Act.
Lawyers for Deutsche Bank argue the victims' complaint provides no
factual allegation that the bank knew or should have known about
Epstein's sex trafficking. Rather the bank was providing "routine
banking services to a client, nothing more."
The complaint also "plainly established that it was Epstein's
conduct that was the direct cause" of the victims' injuries, not
the bank, according to Deutsche Bank.
JPMorgan's motion was similar and requested that the court dismiss
all claims. Both banks stated they ended their relationship with
Epstein after The Miami Herald published in 2018 allegations about
the financier's abuse of young women and teenagers.
JPMorgan's lawyers wrote in their motion that the survivor, who
filed the class action suit, was entitled to justice but that the
claim was directed at the wrong party and so is "legally
meritless."
Ties to Epstein led to career downfalls for former Barclays Plc
Chief Executive Officer Jes Staley, who formerly headed JPMorgan's
private bank and Apollo Global Management LLC co-founder Leon
Black. Both have denied knowing about or participating in
inappropriate conduct with Epstein.
The case is Jane Doe 1 v. Deutsche Bank, 22-cv-10018, US District
Court, Southern District of New York (Manhattan). Bloomberg News
[GN]
DFASS GROUP: Fails to Pay Proper Wages, Salgado Suit Alleges
------------------------------------------------------------
DAVID R. SALGADO, individually and on behalf of all others
similarly situated individuals, Plaintiff v. THE DFASS GROUP
(ORLANDO), LLC; JJACK FAMILY OFFICE LLC; BERNARD KLEPACH; and
JULIETTE KLEPACH, Defendants, Case No. 1:22-cv-24274-XXXX (S.D.
Fla., Dec. 31, 2022) seeks to recover from the Defendants unpaid
wages and overtime compensation, interest, liquidated damages,
attorneys' fees, and costs under the Fair Labor Standards Act.
Plaintiff Salgado was employed by the Defendants as driver.
THE DFASS GROUP (ORLANDO), LLC is a duty-free and specialty store
retailers directed to travelers and travel-related needs. [BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd. Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
Email: zep@thepalmalawgroup.com
DIGNITY HEALTH: Hooks' Bid to Remand Suit to Superior Court Denied
------------------------------------------------------------------
In the case, TRAVONNE HOOKS, Individually and on behalf of all
others similarly situated, Plaintiff v. DIGNITY HEALTH; and DOES 1
THIRD CAUSES OF through 50, inclusive, Defendants, Case No. CV
22-07699 DSF (PDx) (C.D. Cal.), Judge Dale S. Fischer of the U.S.
District Court for the Central District of California denies Hooks'
motion to remand to Los Angeles County Superior Court.
Dignity Health is a health care provider that operates primary care
clinics in 22 states. One of the services that Dignity Health
provides is processing and fulfilling patient medical requests on
behalf of an engaged hospital, physician or group practice.
On May 27, 2021, Hooks requested his personal health information
(PHI) from Dignity Health pursuant to the Health Information
Technology for Economic and Clinical Health Act (HITECH), 45 C.F.R.
Section 164.524. In response to the request, Dignity Health did not
provide all requested information and some of the data provided was
not in the requested native electronic form. It charged Hooks
$23.90 for this request. Hooks repeated his request several months
later and Dignity Health again provided information in the
incorrect form. Dignity Health charged Hooks $21.95 for the second
request.
Hooks filed this class action lawsuit on Sept. 20, 2022, in Los
Angeles County Superior Court for Dignity Health's failure to
provide complete electronic PHI records. He alleges three causes of
action (1) Breach of Contract; (2) Unjust Enrichment; and
violations of (3) California's Unfair Competition Law.
On Oct. 21, 2022, Dignity Health removed this action pursuant to
pursuant to the Class Action Fairness Act of 2005 (CAFA), 28 U.S.C.
Section 1332(d).
Hooks moves for remand based on the home state controversy
exception (HSE). Whether either HSE applies will depend on whether
Hooks can meet his burden to show the requisite California
citizenship of the class.
Judge Fischer holds that the evidence presented by Hooks, while it
might provide for logical guesses about how prevalent California
citizens may be in the class, it is insufficient. But more
importantly, nothing in Hooks' evidence indicates the citizenship
and domicile of the class members. In the cases reviewed above, the
Ninth Circuit has found home addresses, which are at least some
evidence of domicile, to be insufficient to show that the class
members were citizens of the state. In sum, Hooks' motion presents
only "guesswork," and no matter how sensible it may seem, it is not
enough to support the mandatory or discretionary HSE.
Relying on Sonner v. Premium Nutrition Corp., 971 F.3d 834, 844
(9th Cir. 2020) (Sonner I), Hooks argues that if the Court finds
the HSEs do not apply, it should at least remand the equitable
claims for lack of equitable jurisdiction. In Sonner I, the Ninth
Circuit affirmed dismissal of claims under California's Unfair
Competition Law and Consumers Legal Remedies Act where the
plaintiff had voluntarily dismissed her claims for legal remedies
and sought restitution only. Hooks argues that because there is
nothing suggesting that Hooks' legal remedies are inadequate, the
Court does not have equitable jurisdiction and remand of the
equitable claims is proper.
Judge Fischer agrees that the Court does not have equitable
jurisdiction. For the equitable claims, he says Hooks has not
pleaded lack of a legal remedy. The closest the Complaint comes is
calling the unjust enrichment claim an "alternative to breach of
contract claim." This is not the same as pleading that damages
would fail to make Hooks whole. He finds, however, that dismissal
without prejudice is the proper resolution.
Based on the foregoing, Judge Fischer denies the Plaintiff's motion
to remand. Because the Court lacks equitable jurisdiction over
Hooks' Second and Third Causes of Action, they are dismissed
without prejudice.
A full-text copy of the Court's Dec. 27, 2022 Order is available at
https://tinyurl.com/bddx9xfj from Leagle.com.
DIVERSIFIED ENERGY: McEvoy Wins Leave to File 2nd Amended Complaint
-------------------------------------------------------------------
In the case, MARK McEVOY, JAMES TAWNEY, SUSAN TAWNEY, SAMUEL STARK,
SUSAN DENNISON, MARK GOFF, CAROL DELROSSO, and GEORGE DELROSSE,
individually and on behalf of a proposed class, Plaintiffs v.
DIVERSIFIED ENERGY COMPANY PLC, DIVERSIFIED GAS & OIL, PLC,
DIVERSIFIED PRODUCTION, LLC, DIVERSIFIED GAS & OIL CORPORATION,
DIVERSIFIED OIL AND GAS LLC, ALLIANCE PETROLEUM CORPORATION, EQT
PRODUCTION COMPANY, EQT PRODUCTION HTW, LLC, EQT ENERGY LLC, EQT
INVESTMENT HOLDINGS, LLC, EQT GATHERING, LLC, EQM MIDSTREAM
PARTNERS LP, EQT MIDSTREAM PARTNERS LP, EQT GP HOLDINGS, LP, and
EQT CORPORATION, Defendants, Civil Action No. 5:22-CV-171 (N.D.W.
Va.), Judge John Preston of the U.S. District Court for the
Northern District of West Virginia, Wheeling:
a. grants the Plaintiffs' Motion for Leave to File Second
Amended Complaint; and
b. denies as moot Diversified Defendants' Motion to Dismiss.
The case stems from thousands of abandoned gas wells in West
Virginia that the Plaintiffs allege Diversified Defendants had a
duty to plug and decommission. Moreover, the case also concerns
alleged fraudulent transfers made between Diversified Defendants
and EQT Defendants. An Amended Class Action Complaint was filed on
July 15, 2022.
In the Complaint, the Plaintiffs assert five causes of action:
Count I - Trespass by Diversified; Count II - Nuisance by
Diversified; Count III - Negligence by Diversified; Count IV -
Avoidance and Recovery of Fraudulent Transfer as the Result of an
Actual Fraudulent Transfer; and Count V - Avoidance and Recovery of
Fraudulent Transfer as the Result of a Constructive Fraudulent
Transfer.
Pending before the Court is Diversified Defendants' Motion to
Dismiss, filed Sept. 29, 2022. The Plaintiffs filed their
Memorandum in Opposition to the Defendants' Motion to Dismiss on
Oct. 13, 2022. Diversified Defendants filed a Reply in Support of
the Motion to Dismiss on Oct. 20, 2022.
On Nov. 15, 2022, the Plaintiffs filed a Motion for Leave to File
Second Amended Complaint and accompanying Memorandum in Support.
Diversified Defendants filed a Memorandum in Opposition on Nov. 29,
2022. The Plaintiffs filed a Reply on Dec. 6, 2022.
Judge Preston turns to the Plaintiffs' Motion for Leave to File
Second Amended Complaint. Therein, they argue they satisfy each of
the factors warranting amendment pursuant to Rule 15(a)(2).
Judge Preston agrees. First, he says a review of the pleadings and
relevant authority lead him to conclude that granting leave to
amend would not cause undue delay. Fact discovery in the matter
will not conclude until Aug. 4, 2023, and trial is currently
scheduled on April 16, 2024. Moreover, the Fourth Circuit has held,
as have a number of other circuits, that delay alone is not
sufficient reason to deny leave to amend. The delay must be
accompanied by prejudice, bad faith, or futility.
Second, the Plaintiffs do not appear to seek amendment through bad
faith. They have not previously requested leave to amend and have
only amended once previously as of right, and thus have not engaged
in repeated attempts to cure deficiencies in the pleadings.
Moreover, the pending Motion for Leave to File Second Amended
Complaint was made within the deadlines contained in the Court's
scheduling order.
Third, although prejudice can result where a new legal theory is
alleged if it would entail additional discovery and evidentiary
burdens on the part of the opposing party, this basis for a finding
of prejudice essentially applies where the amendment is offered
shortly before or during trial. The case is at its initial stages
and prejudice to the Defendants in allowing amendment appears to be
minimal, if at all.
Finally, Judge Preston opines that because the proposed Second
Amended Complaint is not apparently deficient on its face, the
proposed amendment is not futile.
For these reasons, Judge Preston grants the Plaintiffs' Motion for
Leave to File Second Amended Complaint. Accordingly, he denies as
moot Diversified Defendants' Motion to Dismiss.
The Clerk will transmit copies of the Order to all counsel on
record.
A full-text copy of the Court's Dec. 28, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/4mv6jtwx from
Leagle.com.
DYNASTY MARKETING: Alexander Files TCPA Suit in N.D. Georgia
------------------------------------------------------------
A class action lawsuit has been filed against Dynasty Marketing
Group, LLC. The case is styled as Richard Alexander, individually
and on behalf of a classes of others similarly situated v. Dynasty
Marketing Group, LLC doing business as: Dynasty Vacation Club, Case
No. 2:22-cv-00254-RWS (N.D. Ga., Dec. 29, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act.
Dynasty Marketing Group, LLC doing business as Dynasty Vacation
Club -- https://dynastyvacationclub.com/ -- is one of the largest
provider of vacation getaways.[BN]
The Plaintiff is represented by:
Amy BeMent, Esq.
James B. Matthews, III, Esq.
Robert Stanley Huestis, Esq.
BLASINGAME, BURCH, GARRARD & ASHLEY, PC
440 College Ave., Suite 320
P.O. Box 832
Athens, GA 30601
Phone: (706) 354-4000
Email: abement@bbga.com
jmatthews@bbga.com
rhuestis@bbga.com
DYNOMIGHTY DESIGN: Rodriguez Files ADA Suit in E.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Dynomighty Design,
Inc. The case is styled as Daniel Rodriguez, on behalf of himself
and all others similarly situated v. Dynomighty Design, Inc., Case
No. 1:23-cv-00004 (E.D.N.Y., Jan. 1, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Dynomighty Design -- https://mightywallet.shop/ -- is an online
retailer of wallets, coin pouches, and laptop sleeves.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
EASTERN ACCOUNT: Kessler Files FDCPA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Eastern Account
System of Connecticut, Inc. The case is styled as Mordechai
Kessler, individually and on behalf of all others similarly
situated v. Eastern Account System of Connecticut, Inc., Case No.
7:22-cv-11004 (S.D.N.Y., Dec. 31, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Eastern Account System of Connecticut, Inc. --
https://easternaccounts.com/ -- is an accountant in Newtown
borough, Connecticut.[BN]
The Plaintiff is represented by:
Robert Thomas Yusko, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: ryusko@steinsakslegal.com
EASTPOINT RECOVERY: De Alba Files FDCPA Suit in W.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Eastpoint Recovery
Group, Inc. The case is styled as Amy De Alba, individually and on
behalf of all others similarly situated v. Eastpoint Recovery
Group, Inc., Case No. 1:22-cv-01025 (W.D.N.Y., Dec. 31, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Eastpoint Recovery Group, Inc. --
https://eastpointrecoverygroup.com/ -- is a professional
receivables and collections management firm.[BN]
The Plaintiff is represented by:
Tamir Saland, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601-2726
Phone: (201) 282-6500
Fax: (201) 282-6501
Email: tsaland@steinsakslegal.com
ELEVANCE HEALTH: Burrus Suit Transferred to C.D. California
-----------------------------------------------------------
The case styled as Kikishia Burrus, on behalf of herself and all
others similarly situated, and the general public v. Elevance
Health Inc., The Elevance Companies, Inc. formerly known as: The
Anthem Companies, Inc., Does 1 through 50, inclusive, Case No.
3:22-cv-05297 was transferred from the U.S. District Court for the
Northern District of California, to the U.S. District Court for the
Central District of California on Dec. 29, 2022.
The District Court Clerk assigned Case No. 2:22-cv-09433-JLS-MAR to
the proceeding.
The nature of suit is stated as Jobs Civil Rights for Employment
Discrimination.
Elevance Health, Inc. -- https://www.elevancehealth.com/ -- is an
American health insurance provider..[BN]
The Plaintiff is represented by:
Chaim Shaun Setareh, Esq.
Jose Maria Dominado Patino, Jr., Esq.
Maxim Gorbunov, Esq.
SETAREH LAW GROUP
9665 Wilshire Boulevard Suite 430
Beverly Hills, CA 90212
Phone: (310) 888-7771
Fax: (310) 888-0109
Email: shaun@setarehlaw.com
jose@setarehlaw.com
maxim@setarehlaw.com
The Defendants are represented by:
Michael D Weil, Esq.
MORGAN LEWIS AND BOCKIUS LLP
One Market Spear Street Tower
San Francisco, CA 94105
Phone: (415) 442-1000
Fax: (415) 442-1001
Email: michael.weil@morganlewis.com
- and -
Anahi Cruz, Esq.
Jennifer B. Zargarof, Esq.
MORGAN LEWIS AND BOCKIUS LLP
300 South Grand Avenue 22nd Floor
Los Angeles, CA 90071
Phone: (213) 612-2500
Fax: (213) 612-2501
Email: anahi.cruz@morganlewis.com
jennifer.zargarof@morganlewis.com
EXCELHEALTH INC: Santana Files ADA Suit in N.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against ExcelHealth, Inc. The
case is styled as Juan Santana, individually, and on behalf of all
others similarly situated v. ExcelHealth, Inc., Case No.
1:22-cv-01421-GLS-CFH (N.D.N.Y., Dec. 29, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
ExcelHealth -- https://excelhealth.ca/ -- develops FDA cleared,
consumer-friendly electrotherapy devices to meet a variety of
needs, all in one innovative brand called iReliev.[BN]
The Plaintiff is represented by:
William Downes, Esq.
MIZRAHI KROUB LLP
225 Broadway, Ste. 39th Floor
New York, NY 10007
Phone: (212) 595-6200
Email: wdownes@mizrahikroub.com
FCA US LLC: Seeks Dismissal of Jeep Clutch Class Action Suit
------------------------------------------------------------
David A. Wood, writing for CarComplaints.com, reports that a Jeep
clutch recall may put an end to a class action lawsuit that alleges
Jeep Wranglers and Jeep Gladiators are equipped with defective
clutches.
According to the Jeep clutch lawsuit, the affected vehicles are
2018-2021 Jeep Wrangler (2 door), 2018-2021 Jeep Wrangler Unlimited
(4 door) and 2020-2021 Jeep Gladiator SUVs equipped with manual
transmissions.
The Jeeps are also equipped with 3.6L V6 engines that produce "an
advertised 285 horsepower and 260 lb-ft of torque."
The five Jeep owners who filed the clutch class action lawsuit
allege the clutch friction plate slips on the flywheel which
creates high temperatures that can cause a fire.
Fiat Chrysler issued two Jeep clutch recalls (here and here), but
the class action lawsuit asserts the software update offered as a
remedy really only causes owners to lose.
According to the plaintiffs, the Jeep clutch recalls, "effectively
neuter" the Jeeps by "depriv[ing] Class Members of the benefit of
their bargains -- a class Vehicle equipped with a 6-speed manual
transmission and a 3.6LV6 engine that produces 285 horsepower and
260 lb-ft of torque."
Motion to Dismiss the Jeep Clutch Lawsuit
In its motion to dismiss, Chrysler told the judge the class action
lawsuit should be dismissed because of the two Jeep clutch recalls.
The automaker argues it provided documented proof the clutch
recalls, performed for free, fixed the clutch defects.
Chrysler argues the lawsuit should be dismissed because the
plaintiffs don't have standing to bring their claims, and the
clutch recalls moot their claims.
FCA also argues one plaintiff had a Jeep that didn't have any
clutch problems before or after the recalls, a fact that caused
Judge Judith E. Levy to dismiss his claims.
The judge also ruled the other four plaintiffs didn't provide
enough evidence to support their claims and didn't explain how the
recalls failed to fix their Jeeps.
However, the judge did grant the plaintiffs another shot at their
claims.
"These Plaintiffs are granted an opportunity to present evidence
demonstrating that they have standing and that their claims are not
mooted by the recall. Failure to do so will result in dismissal."
-- Judge Levy
Those plaintiffs are Jeep owners Dean Myslivecek, Paul Caputo,
Christopher Chow, Michael Busovicki and Kevin Schaffner.
The Jeep clutch lawsuit was filed in the U.S. District Court for
the Eastern District of Michigan (Southern Division): Myslivecek,
et al., v. FCA US LLC.
The plaintiffs are represented by Bursor & Fisher. [GN]
FINANCIAL BUSINESS: Handler Files FDCPA Suit in S.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Financial Business
and Consumer Solutions, Inc. The case is styled as Joseph Handler,
individually and on behalf of all others similarly situated v.
Financial Business and Consumer Solutions, Inc. d/b/a FBCS, Inc.,
Case No. 7:22-cv-11008 (S.D.N.Y., Dec. 31, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Financial Business and Consumer Solutions (FCBS) --
https://www.fbcs-inc.com/ -- is a debt collection agency located in
Hatboro, Pennsylvania.[BN]
The Plaintiff is represented by:
Robert Thomas Yusko, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: ryusko@steinsakslegal.com
G.E.S. BAKERY: Marquez Sues Over Unpaid Minimum, Overtime Wages
---------------------------------------------------------------
Felix Marquez, individually and on behalf of all others similarly
situated v. G.E.S. BAKERY, INC. d/b/a STRAUSS BAKERY, SRAH BAKERY,
INC., YSDM, INC., TZVI GOLDSTEIN, and ELLIOT BERMAN, Case No.
1:22-cv-07955 (E.D.N.Y., Dec. 29, 2022), is brought to remedy
violations of the Fair Labor Standards Act and the New York Labor
Law seeking unpaid minimum wages, unpaid overtime wages, unpaid
"spread of hours" wages, statutory damages, interest, reasonable
attorneys' fees and costs, liquidated and other damages, and other
applicable federal law.
The Plaintiff typically worked from approximately 8 a.m. to 8 p.m.
or from 7 a.m. to 6:30 p.m., approximately 5 to 6 days per week.
The Defendants paid the Plaintiff a flat rate of $15.00 per hour,
regardless of how many hours he worked. The Plaintiff was not paid
his wage rate for all hours worked. The Plaintiff was not paid the
applicable overtime hourly rate for all hours worked in excess of
forty hours per week. The Plaintiff did not receive the "spread of
hours" premium of one additional hour at the minimum wage rate for
the days in which he worked 10 or more hours.
The Defendants have maintained a practice and policy of: failing to
pay the Plaintiff and putative class members the applicable minimum
wage rate for all hours worked, in violation of New York State
Labor Law; assigning the Plaintiff and putative class members to
work more than 40 hours per week without paying them the applicable
overtime hourly rate of pay for all hours worked in excess of 40
per week, in violation of New York State Labor Law; and failing to
pay the Plaintiff and putative class members "spread of hours"
premium of one additional hour at the minimum wage rate for the
days in which they worked over 10 hours, says the complaint.
The Plaintiff worked for the Defendants from January 2022 until
March 2022.
The Defendants operate a large-scale baked goods manufacturing
business.[BN]
The Plaintiff is represented by:
LaDonna M. Lusher, Esq.
Joel Goldenberg, Esq.
VIRGINIA & AMBINDER, LLP
40 Broad Street, 7th Floor
New York, NY 10004
Phone: (212) 943-9080
- and -
Gennadiy Naydenskiy, Esq.
NAYDENSKIY LAW FIRM, LLC
426 Main St, #201
Spotswood, New Jersey, 08884
Phone: (718) 808-2224
GAOTU TECHEDU: Faces Zhang Suit Over Drop in Share Price
--------------------------------------------------------
JOSHUA ZHANG, individually and on behalf of all others similarly
situated, Plaintiff v. GAOTU TECHEDU INC. f/k/a GSX TECHEDU INC.,
XIANGDONG CHEN and NAN SHEN, Defendants, Case No. 1:22-cv-07966
(E.D.N.Y., Dec. 30, 2022) is a class action on behalf of persons or
entities who purchased or otherwise acquired publicly traded Gaotu
American depository shares ("ADSs") between March 5, 2021 and July
23, 2021, inclusive (the "Class Period"), the Plaintiff seeks to
recover compensable damages caused by the Defendants' violations of
the Securities Exchange Act of 1934 (the "Exchange Act").
The Plaintiff alleges in the complaint that the statements in the
Defendants' Q4 2020 Earnings Call, Form 144 for the sale of 1.335
million ADSs, and Q1 2021 earnings were materially false and
misleading. The Defendants made false and misleading statements and
failed to disclose, among other things that: (1) China was barring
tutoring for profit in core school subjects and the policy change
would restrict foreign investment in a sector that had become
essential to success in Chinese school exams; and (2) the impact
such regulations would have on Gaotu's operations and profitability
and the value of Company securities.
The price of Gaotu's ADSs fell 63.3% to close at $3.52 per ADS on
July 23, 2021, damaging investors. On July 26, 2021, the Company
refused to comment on the media news of the regulations when it
filed its Form 6-K with the SEC signed by CFO Shen.
As a result of the Defendants' wrongful acts and omissions and the
precipitous decline in the market value of the Company's ADSs, the
Plaintiff and other Class members have suffered significant losses
and damages, says the suit.
GAOTUTECHEDU INC. develops educational software. The Company offers
online K-12 large-class after-school tutoring as well as foreign
language, professional, and other courses. GaotuTechedu serves
students in China. [BN]
The Plaintiff is represented by:
Phillip Kim, Esq.
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Telephone: (212) 686-1060
Facsimile: (212) 202-3827
Email: pkim@rosenlegal.com
lrosen@rosenlegal.com
GENERAC POWER: Moon Sues Over Defective PWRcell's SnapRS Units
--------------------------------------------------------------
DUSTIN MOON, individually and on behalf of all others similarly
situated, Plaintiff v. GENERAC POWER SYSTEMS, INC. and GENERAC
HOLDINGS, INC., and DOES 1 through 100, inclusive, Defendants, Case
No. 5:22-cv-09183-SVK (N.D. Cal., December 30, 2022) is a class
action against the Defendants for breach of express warranty,
breach of implied warranty, breach of express warranty and breach
of implied warranty under Song Beverly Consumer Warranties Act, and
violations of California Unfair Competition Law and California
Consumers Legal Remedies Act.
The case arises from the Defendants' manufacturing and distribution
of PWRcell system with defective SnapRS (Rapid Shutdown) units. The
shutoff devices malfunction by becoming overactive, repeatedly
turning off and on, causing them to overheat, bubble, burn and
explode, resulting in charring and home fires. In addition, the
defect results in a loss of energy production for consumers' home
energy systems by shutting down entire panels for prolonged periods
of time or complete shutdowns of their entire energy system.
Despite that it knew or should have known of this defect, Generac
failed to disclose this defect to the Plaintiff and other
consumers. It has also failed to recall, provide refunds or
adequate replacement components, or otherwise inform the public
that its systems are defective. The Plaintiff and Class members
seek damages and appropriate equitable relief, including an order
enjoining Generac from selling its solar products without
disclosing their defect to consumers, says the suit.
Generac Power Systems, Inc. is a manufacturer of solar products,
headquartered in Waukesha, Wisconsin.
Generac Holdings, Inc. is the parent company of Generac Power
Systems, Inc., headquartered in Waukesha, Wisconsin. [BN]
The Plaintiff is represented by:
William A. Kershaw, Esq.
Stuart C. Talley, Esq.
Ian J. Barlow, Esq.
KERSHAW TALLEY BARLOW PC
401 Watt Avenue
Sacramento, CA 95864
Telephone: (916) 779-7000
Facsimile: (916) 721-2501
E-mail: bill@ktblegal.com
stuart@ktblegal.com
ian@ktblegal.com
GENESIS GLOBAL: Gemini Boss Accuses DCG CEO of "Bad Faith Tactics"
------------------------------------------------------------------
Arnab Shome, writing for Finance Magnates, reports that on Jan. 2,
Cameron Winklevoss, the Co-Founder of the crypto exchange Gemini,
accused the CEO of Digital Currency Group, Barry Silbert, of "bad
faith stall tactics" in resolving the payment of a $900 million
debt.
Winklevoss' Allegations against DCG and Genesis
The publicly posted letter from one of the Winklevoss twins to
Silbert alleged that Gemini had waited six weeks trying to bring
Genesis Global Capital and its parent company Digital Currency
Group for a discussion on the repayment but failed.
"For the past six weeks, we have done everything we can to engage
with you in good faith and collaborative manner in order to reach a
consensual resolution for you to pay back the $900 million that you
owe, while helping you preserve your business," Winklevoss' letter
stated. "However, it is now becoming clear that you have been
engaging in bad faith stall tactics."
Winklevoss revealed that Gemini had sent two payment proposals to
Silbert and his companies but has yet to receive a response or
willingness to resolve the issue. He added: "Every time we ask you
for tangible engagement, you hide behind lawyers, investment
bankers, and process. After six weeks, your behavior is not only
completely unacceptable, it is unconscionable."
According to Winklevoss, the Digital Currency Group's subsidiary,
Genesis owes $1.675 billion to Gemini, which belongs to "Earn users
and other creditors."
Additionally, Silbert responded to the allegations, tweeting that
DCG "did not borrow $1.675 billion from Genesis" and the company
never missed an interest payment deadline. However, Winklevoss
challenged these claims, revealing Genesis borrowed the proceeds
with promissory notes.
Class Action Arbitration Request
In response to the public feud between Winklevoss and Silbert,
three Genesis earn users have filed a class action arbitration
request against Genesis Global Capital and Digital Currency Group.
The Genesis earn users alleged that Genesis failed to return their
and other Gemini Earn users' assets, thus breaching the Master
Agreement between the two companies. On top of that, they accused
Genesis of concealing its state of insolvency from its customers.
A class-action arbitration is a dispute resolution process that a
third-party arbitrator resolves. It is a voluntary and less formal
process and is seen as an alternative to a class-action lawsuit.
[GN]
GENESIS GLOBAL: Gemini Earn Users Seek Class Action Arbitration
---------------------------------------------------------------
Sam Reynolds, writing for CoinDesk, reports that three Gemini Earn
users have filed a request for class action arbitration against
Genesis Global Capital and Digital Currency Group in response to
Gemini suspending its Earn redemption program due to Genesis
freezing withdrawals.
DCG is also the parent company of CoinDesk.
Class-action arbitration -- a dispute resolution process where a
neutral third-party arbitrator resolves disputes between parties --
is often seen as an alternative to a class-action lawsuit. The
arbitration process is usually voluntary and less formal. However,
the decision of the arbitrator is binding and cannot be appealed,
making the process potentially faster and less expensive than a
class-action lawsuit.
The claimants allege Genesis has failed to return their and all
Gemini Earn users' digital assets as required under the Master
Agreements between the firm and users.
They claim Genesis first breached the Master Agreement when the
firm became insolvent in the summer of 2022, but concealed its
insolvency from its customers.
Genesis then, they allege, engaged in a sham transaction with its
parent company, DCG, to conceal the insolvency, exchanging the
right to collect a $2.3 billion debt owed to Genesis by the
now-insolvent hedge fund Three Arrows Capital for a promissory note
of $1.1 billion due in 2033.
The group also claims that Genesis' Master Agreement effectively is
creating unregistered sales of securities, and are seeking to
rescind the contracts of sale and related damages.
There is also a concurrent class action suit filed against Gemini
in late December by investors Brendan Picha and Max J. Hastings,
which alleges the exchange engaged in the sale of unregistered
securities via its Earn program.
"When Genesis encountered financial distress as a result of a
series of collapses in the crypto market in 2022, including FTX
Trading Ltd. ("FTX"), Genesis was unable to return the crypto
assets it borrowed from Gemini Earn investors," a filing from the
Pica and Hastings class action says. "[Gemini] refused to honor any
further investor redemptions, effectively wiping out all investors
who still had holdings in the program, including plaintiffs."
Gemini co-founder Cameron Winklevoss and DCG CEO Barry Silbert
engaged in a back-and-forth on Twitter late on Jan. 2, where the
exchange executive accused Silbert of engaging in "bad faith stall
tactics" over plans to resume withdrawals from Genesis.
Winklevoss says that Genesis and DCG owe Gemini and its clients
$900 million, and gave Silbert until January 8 to publicly commit
to solving this problem. [GN]
GEORGIA: District Court Sets Briefing Schedule in Oldaker v. Giles
------------------------------------------------------------------
Judge W. Louis Sands, Jr., of the U.S. District Court for the
Middle District of Georgia, Valdosta Division, grants the Joint
Motion to Set Briefing Schedule in the lawsuit styled YANIRA
YESENIA OLDAKER, et al., Plaintiffs v. THOMAS P. GILES, et al.,
Defendants, Case No. 7:20-cv-224 (WLS) (M.D. Ga.).
Before the Court is the Joint Motion to Set Briefing Schedule filed
on behalf of the Plaintiffs and Defendants Thomas Giles, Cesar
Ciprian, Ana Rivera, Patrick Musante, LaSalle Southeast LLC, David
Paulk, Mahendra Amin, Irwin County Detention Center, Hospital
Authority of Irwin County, and the Federal Defendants sued in their
official capacity (collectively "Responding Defendants").
Judge Sands notes that the Docket reflects that the Plaintiffs have
not filed a return of summons executed as to the following
Defendants named in this case; and this Order, therefore, does not
apply to those Defendants: Marteka Georga, in her individual
capacity and official capacity as Inmates' Services Director at
Irwin County Detention Center ("ICDC"); Mia Mines, in her
individual capacity and official capacity as ICDC officer; William
Rabiou, in his individual capacity and official capacity as ICDC
officer; "FNU" Hughes, in her individual capacity and official
capacity as ICDC officer; "FNU" Smith, in her individual capacity
and official capacity as ICDC officer; "FNU" Coney, in her
individual capacity and official capacity as ICDC officer; "FNU"
Hanes, in his individual capacity and official capacity as ICDC
officer; "FNU" Faison, in her individual capacity and official
capacity as ICDC officer; "FNU" Battle, in her individual capacity
and official capacity as ICDC officer; "FNU" Vaughn, in her
individual capacity and official capacity as ICDC officer; "FNU"
Scott, in her individual capacity and official capacity as ICDC
officer; "FNU" Slack, in her individual capacity and official
capacity as ICDC officer; Unknown ICDC Officers ##1-X, in their
individual and official capacities. By separate order, the
Plaintiffs will be required to show service of summons on these
Defendants.
On Dec. 1, 2022, the Plaintiffs filed their Consolidated Second
Amended Class Action Complaint for Declaratory and Injunctive
Relief and for Damages ("SAC"). In the Joint Motion, the Parties
propose a briefing schedule for the Responding Defendants'
responses to the SAC and the Plaintiffs' responses to any motions
to dismiss or other responses from the Responding Defendants.
The Court orders as follows:
1. The Responding Defendants will file any answers, motions to
dismiss, or other responses to the SAC on or before Monday,
Jan. 23, 2023;
2. The Plaintiffs will file any responses to any motions to
dismiss, or other responses filed by the Responding
Defendants to the SAC on or before Monday, Feb. 20, 2023;
and
3. The Responding Defendants may file any reply briefs on or
before Monday, March 20, 2023.
A full-text copy of the Court's Order dated Dec. 19, 2022, is
available at https://tinyurl.com/5fjwcse3 from Leagle.com.
GOOGLE LLC: 9th Cir. Reverses Dismissal of 3rd Amended Jones Suit
-----------------------------------------------------------------
In the case, CARA JONES, as parent and guardian of E.J., N.J.,
A.J., and L.J., minors; JUSTIN EFROS, as parent and guardian of
J.A.E. and J.R.E., Minors; NICHOLE HUBBARD, as parent and guardian
of C.H., a minor; individually and on behalf of all others
similarly situated; RENEE GILMORE, as parent and guardian of M.W.,
a minor; JAY GOODWIN, as parent and guardian of A.G., a minor;
BOBBI DISHMAN, as parent and guardian of C.D., a minor; PAULA
RIDENTI, as parent and guardian of R.A. and R.M.A., minors; C.H.;
E.J.; N.J.; A.J.; L.J.; J.A.E.; J.R.E.; M.W.; A.G.; C.D.,
Plaintiffs-Appellants v. GOOGLE LLC; YOUTUBE, LLC; MATTEL, INC.;
DREAMWORKS ANIMATION LLC; HASBRO, INC.; HASBRO STUDIOS, LLC; THE
CARTOON NETWORK, INC.; CARTOON NETWORK STUDIOS, INC.; POCKETWATCH,
INC.; REMKA, INC.; RTR PRODUCTION, LLC; RFR ENTERTAINMENT, INC.,
Defendants-Appellees, Case No. 21-16281 (9th Cir.), the U.S. Court
of Appeals for the Ninth Circuit reverses the district court's
dismissal of the third amended complaint on preemption grounds.
The Children's Online Privacy Protection Act ("COPPA"), 15 U.S.C.
Sections 6501-06, gives the Federal Trade Commission ("FTC")
authority to regulate the online collection of personal identifying
information about children under the age of 13. The statute
includes a preemption clause that provides that no State or local
government may impose any liability inconsistent with the treatment
of those activities or actions under this section.
Google, best known for its popular search engine, also owns
YouTube, a widely used online video-sharing platform. YouTube
videos are particularly popular among children, who increasingly
have smartphones and tablets that allow them to access the platform
without age verification. As a testament to YouTube's popularity
among kids, several popular toy and cartoon brands maintain YouTube
"channels," where they post content and run advertisements designed
to appeal to young audiences.
Google's targeted advertising is aided by sophisticated technology
that delivers curated, customized advertising based on information
about specific users. Together, these pieces of information
comprise detailed individual "profiles" of users' attributes and
behaviors, extremely valuable tools for the advertisers who seek to
capitalize on this deep trove of information about their targeted
audiences. The revenue from these targeted ads is split between
Google and the owners of the relevant YouTube channels; indeed,
Google, whose search and video platforms are largely free to its
users, makes most of its money through ad revenue.
Google's technology depends partly on what FTC regulations call
"persistent identifiers," information "that can be used to
recognize a user over time and across different Web sites or online
services." In 2013, the FTC adopted regulations under COPPA that
barred the collection of children's "persistent identifiers"
without parental consent.
In this putative class action, the Plaintiffs are several minor
children suing through guardians ad litem, alleging that Google
used persistent identifiers to collect data and track their online
behavior surreptitiously and without their consent. They seek
damages and injunctive relief, asserting only state law claims:
invasion of privacy, unjust enrichment, consumer protection
violations, and unfair business practices, arising under the
constitutional, statutory, and common law of California, Colorado,
Indiana, Massachusetts, New Jersey, and Tennessee. The parties
agree that all of the claims allege conduct that would violate
COPPA's requirement that child-directed online services give notice
and obtain "verifiable parental consent" before collecting
persistent identifiers.
The complaint names two sets of defendants. First are Google LLC
and YouTube, LLC, which together own and operate the YouTube
platform (collectively "Google"). Second are numerous content
creators that uploaded child-directed content to YouTube, including
major toy brands and a television network that showcases cartoons
(collectively the "Channel Owners").
Although the Children plead only state law causes of action, they
also allege that Google's data collection activities violated
COPPA, and that Google falsely represented that COPPA's
requirements did not apply to YouTube, reasoning that it was a
platform for adults, even while knowing that children use the
platform. The complaint alleges that Google did not configure
YouTube to comply with COPPA until January 2020, after reaching a
settlement with the FTC and the New York Attorney General in the
fall of 2019. As for the Channel Owners, the complaint alleges that
they lured children to their channels, knowing that the children
who viewed content on YouTube would be tracked, profiled, and
targeted by Google for behavioral advertising.
The district court dismissed the Second Amended Complaint,
concluding that the Children's claims were expressly preempted by
COPPA, 15 U.S.C. Section 6502(d). The Children filed a Third
Amended Complaint, adding additional details about the allegedly
deceptive conduct. The court again held that the "core allegations"
in that complaint were "squarely covered, and preempted, by COPPA."
Regarding the deceptive conduct amendments, the court held that the
Children had again "failed to allege deception beyond what is
regulated by COPPA." The court granted the Children leave to file
another amended complaint "if they can substitute proper plaintiffs
to represent persons in the 13-16 age range" -- i.e., older than
COPPA's cutoff at 13 years old. The Children informed the district
court that they did not intend to further amend and filed this
appeal instead.
The appeal presents the question whether COPPA preempts state law
claims based on underlying conduct that also violates COPPA's
regulations. Preemption derives from the Supremacy Clause, which
"invalidates state laws that interfere with, or are contrary to
federal law." The Supreme Court has identified "three different
types of preemption--express, conflict, and field in Murphy v.
NCAA, 138 S.Ct. 1461, 1480 (2018). The district court based its
dismissal on express preemption; Google and the Channel Owners
argue in the alternative that the claims are conflict-preempted.
The Ninth Circuit holds that COPPA's preemption clause does not bar
state-law causes of action that are parallel to, or proscribe the
same conduct forbidden by, COPPA. Express preemption, therefore,
does not apply to the Children's claims.
For the same reasons that it concludes there is no express
preemption, the Ninth Circuit concludes that conflict preemption
does not bar the Children's claims.
Hewing closely to the language of the preemption clause, the Ninth
Circuit determines that Congress intended to preempt inconsistent
state laws, not state laws that are consistent with COPPA's
substantive requirements, such as the state law causes of action
pleaded in the complaint. It reverses the district court's
dismissal of the third amended complaint on preemption grounds. It
remands so that the district court can consider in the first
instance the alternative arguments for dismissal, to the extent
those arguments were properly preserved.
A full-text copy of the Court's Dec. 28, 2022 Opinion is available
at https://tinyurl.com/bdh8k63e from Leagle.com.
David S. Golub -- dgolub@sgtlaw.com -- (argued), Steven L. Bloch --
sbloch@sgtlaw.com -- and Ian W. Sloss -- isloss@sgtlaw.com --
Silver Golub & Teitell LLP, Stamford, Connecticut; Jonathan K.
Levine -- jkl@pritzkerlevine.com -- Elizabeth C. Pritzker --
ecp@pritzkerlevine.com -- and Caroline C. Corbitt --
ccc@pritzkerlevine.com -- Pritzker Levine LLP, Emeryville,
California; Edward F. Haber -- ehaber@shulaw.com -- Shapiro Haber &
Urmy LLP, Boston, Massachusetts; for the Plaintiffs Appellants.
Edith Ramirez -- edith.ramirez@hoganlovells.com -- (argued), Adam
A. Cooke -- adam.a.cooke@hoganlovells.com -- (argued), Michelle A.
Kisloff, and Jo-Ann Tamila Sagar -- jo-ann.sagar@hoganlovells.com
-- Hogan Lovells US LLP, Washington, D.C.; Christopher Cox --
chris.cox@hoganlovells.com -- Hogan Lovells US LLP, Menlo Park,
California; Helen Yiea Trac -- helen.trac@hoganlovells.com -- Hogan
Lovells LLP, San Francisco, California; Christopher Chorba --
chorba@gibsondunn.com -- and Jeremy S. Smith --
jssmith@gibsondunn.com -- Gibson Dunn & Crutcher LLP, Los Angeles,
California; Anna Hsia, Zwillgen Law LLP, San Francisco, California;
Jefferey Landis and Adya Baker, Zwillgen Law PLLC, Washington,
D.C.; Jonathan H. Blavin, Munger Tolles & Olson LLP, San Francisco,
California; Jordan D. Segall and Ariel T. Teshuva, Munger Tolles &
Olson LLP, Los Angeles, California; Michael J. Saltz and Elana R.
Levine, Jacobson Russell Saltz Nassim & De La Torre LLP, Los
Angeles, California; Jeremy S. Goldman, Frankfurt Kurnit Klein &
Selz PC, Los Angeles, California; David E. Fink and Sarah E.
Diamond, Venable LLP, Los Angeles, California; Angel A. Garganta --
aagarganta@Venable.com -- Venable LLP, San Francisco, California;
for the Defendants-Appellees.
Derek L. Shaffer -- derekshaffer@quinnemanuel.com -- Quinn Emanuel
Urquhart & Sullivan LLP, Washington, D.C.; Tyler S. Badgley, United
States Chamber Litigation Center, Washington, D.C.; for Amicus
Curiae Chamber of Commerce of the United States of America.
GURNEY'S INN: Petit Sues Over Unpaid Wages and Work Discrimination
------------------------------------------------------------------
MENS PETIT, on behalf of himself and all others similarly situated,
Plaintiff v. GURNEY'S INN RESORT & SPA LLC, MEI GNY HOSPITALITY
LLC, BLDG MANAGEMENT CO., INC., JOHN DOE CORPORATIONS 1-10, GEORGE
FILOPOULOS, and LLOYD MICHAEL GOLDMAN, Defendants, Case No.
1:22-cv-07987 (E.D.N.Y., December 30, 2022) is a class action
against the Defendants for unpaid wages, including overtime, due to
time shaving, invalid tip credit, and invalid lodging credit;
unpaid uniform expenses; and illegally retaining gratuities in
violation of the Fair Labor Standards Act and the New York Labor
Law and employment discrimination in violation of the New York
State Human Rights Law.
The Plaintiff worked as a bartender at Gurney's Montauk Resort &
Seawater Spa in Montauk, New York from April 15, 2021 until July 4,
2022.
Gurney's Inn Resort & Spa LLC is a resort operator in New York.
Mei Gny Hospitality LLC is a resort operator in New York.
Bldg Management Co., Inc. is a resort operator in New York. [BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, 8th Floor
New York, NY 10011
Telephone: (212) 465-1188
Facsimile: (212) 465-1181
HAMILTON THERAPEUTICS: Santana Files ADA Suit in N.D. New York
--------------------------------------------------------------
A class action lawsuit has been filed against Hamilton
Therapeutics, Inc. The case is styled as Juan Santana,
individually, and on behalf of all others similarly situated v.
Hamilton Therapeutics, Inc., Case No. 1:22-cv-01413-GLS-CFH
(N.D.N.Y., Dec. 29, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Hamilton Babies -- https://hamiltonbabies.com/ -- was founded in
Santa Monica, California to bring an unprecedented level of safety
and efficacy in personal care to infants and young children.[BN]
The Plaintiff is represented by:
William Downes, Esq.
MIZRAHI KROUB LLP
225 Broadway, Ste. 39th Floor
New York, NY 10007
Phone: (212) 595-6200
Email: wdownes@mizrahikroub.com
HAWAIIAN AIRLINES: Denies Exemption Requests to COVID Vax Policy
----------------------------------------------------------------
RIKI O'HAILPIN, NINA ARIZUMI, ROBERT ESPINOSA, ERWIN YOUNG, PUANANI
BADIANG, SABRINA FRANKS, RONALD LUM, DAN SAIKI, and BRANDEE AUKAI,
on their own behalf and on behalf of all others similarly situated
v. HAWAIIAN AIRLINES, INC., and HAWAIIAN HOLDINGS, INC., Case
caption, Case No. 1:22-cv-00532-JAO-RT (D. Haw., Dec. 22, 2022)
sues the Defendants for discrimination against employees who
requested religious and/or medical accommodations from Hawaiian's
mandate that its employees receive one of the COVID-19 vaccines.
On September 17, 2021, Hawaiian published its vaccination policy.
All employees would have to be vaccinated by January 30, 2022, or
face termination.
On October 1, 2021, Ms. O'Hailpin submitted a request for a
reasonable accommodation from Hawaiian's vaccine mandate based on
her sincerely held religious beliefs. She explained that her body
is a temple of the Holy Spirit and that God had directed her not to
take the vaccine as result. That belief was later strengthened when
she learned that the COVID-19 vaccines were developed using aborted
fetal tissue because she believes that it is sinful to use anything
derived from abortion.
On October 16, 2021, Ms. O'Hailpin submitted a separate request for
a reasonable accommodation based on her medical disability. She
followed up on this request with a letter from her gynecologist on
October 19, 2021, and an extended discussion of her condition from
her reproductive endocrinologist on October 29, 2021.
Despite the detailed explanations from her doctors -- including a
study outlining the dangers of Ms. O'Hailpin's condition and
associated risks -- Hawaiian denied the request for a medical
exemption without any interactive process on November 2, 2021, says
the suit.
Rather than complying with its obligations under Title VII of the
Civil Rights Act of 1964 and the Americans with Disabilities Act,
Hawaiian responded by issuing a blanket denials of requests for
accommodations, often failing entirely to address what the employee
had stated in their request. Moreover, Hawaiian issued conflicting
statements about how it viewed certain religious beliefs. The one
constant was that Hawaiian chose to deny virtually every request
for an accommodation without a justifiable reason to do so.
Hawaiian's virtual 100% denial rate shows a system designed to
result in the denial of legally required protections. By
effectively treating all accommodation requesters the same,
Hawaiian's actions are generally applicable to the entire class of
Hawaiian employees for whom Hawaiian failed to grant reasonable
accommodations.
With its virtually 100% denial rate through canned form letters
that either did not address the actual issues at stake or failed to
demonstrate any undue hardship on Hawaiian, the company is liable
for a pattern of discrimination. Through its actions, Hawaiian has
violated federal law by failing to engage in the interactive
process, failing to provide reasonable accommodations that would
have caused no hardship whatsoever, and by retaliating against
employees who engaged in protected activity, the suit alleges.
As a flight attendant, Ms. O'Hailpin's responsibilities include
explaining safety protocols, handling any emergencies that arise,
serving drinks and food, and generally helping customers.
Hawaiian Airlines is an operator of commercial flights to and from
the U.S. state of Hawaii.[BN]
The Plaintiffs are represented by:
James Hochberg, Esq.
JAMES HOCHBERG AAL, LLC
700 Bishop Street, Suite 2100
Honolulu, HI 96813
Telephone: (808) 256-7382
E-mail: jim@jameshochberglaw.com
- and -
John Sullivan, Esq.
S|L LAW PLLC
610 Uptown Boulevard, Suite 2000
Cedar Hill, TX 75104
Telephone: (469) 523-1351
Facsimile: (469) 613-0891
E-mail: john.sullivan@the-sl-lawfirm.com
- and -
Aaron Siri, Esq.
Walker Moller, Esq.
Laura Carroll, Esq.
SIRI| GLIMSTAD
700 S. Flower Street, Suite 1000
Los Angeles, CA 90017
Telephone: (213) 376-3739
E-mail: aaron@sirillp.com
wmoller@sirillp.com
lcarroll@sirillp.com
HEARST COMMUNICATIONS: S.D. New York Tosses Publicity Statute Cases
-------------------------------------------------------------------
Judge Ronnie Abrams of the U.S. District Court for the Southern
District of New York grants the Defendant's motion to dismiss the
lawsuit titled In re Hearst Communications State Right of Publicity
Statute Cases, Case No. 21-cv-8895 (RA) (S.D.N.Y.).
The lawsuit is a right of publicity case in which the Plaintiffs
readily admit that there has been no violation of the right of
publicity. Twenty named plaintiffs (collectively, "Plaintiffs")
bring this putative class action against Hearst Communications,
Inc. ("Hearst") for selling, renting, or otherwise disclosing its
magazine subscriber lists, which include the Plaintiffs' names and
other information, to third parties.
The named plaintiffs are Tiffani Anderson (on behalf of the Alabama
Class), Barbara Leach and Kimberly Lantz (on behalf of the Indiana
Class), Cathy McGruder (on behalf of the Hawaii Class), Dwana
Eslinger, Belinda Powers and Cathy Ricketts (on behalf of the South
Dakota Class), Judith Shaw, Joan Burke and William Martin (on
behalf of the California Class), Lauren Sandberg (on behalf of the
Nevada Class), Nicki Mahood, Joyce Hicks, Stephen Goldberger and
Dawn Begin (on behalf of the Ohio Class), Rebecca Venable (on
behalf of the Washington Class), and Shirley Collazo, Maribel
Ramirez, Maricarmen Ocasio and Magda Lopez (on behalf of the Puerto
Rico Class).
There is no allegation that the names are ever made public, or that
the third-party recipients are even aware of the names included on
the lists before obtaining them. Nevertheless, the Plaintiffs
contend that this practice misappropriates their identities, and,
thus, violates what they characterize as "misappropriation"
statutes in nine jurisdictions: Alabama, California, Hawaii,
Indiana, Nevada, Ohio, South Dakota, Washington, and Puerto Rico.
But the statutes the Plaintiffs invoke--regardless of how they
label them--are right of publicity statutes in both name and
substance, Judge Abrams holds. These statutes, which stem from a
parallel common law cause of action, protect the property interest
that individuals have in the value of their own publicity. They are
not, however, implicated any time a person's personal information
is exchanged for profit.
The Court expresses no view as to whether the practice of selling
subscriber information, without the subscribers' consent, is cause
for concern. What is clear, and what resolves this case, is that
the sale of subscriber lists here does not infringe on the right of
publicity, Judge Abrams says.
Hearst is a mass media conglomerate that publishes a variety of
magazines, including Car and Driver, Cosmopolitan, Country Living,
Elle, Esquire, Food Network Magazine, Good Housekeeping, Harper's
Bazaar, HGTV Magazine, O, The Oprah Magazine, Seventeen, Town &
Country, and Women's Day. Plaintiffs are twenty residents of,
respectively, Alabama, California, Hawaii, Indiana, Nevada, Ohio,
South Dakota, Washington, and Puerto Rico, who subscribe to at
least one of Hearst's magazines. Each class is defined as the
residents of the respective state "who appear in any of Hearst's
Data Brokerage Products."
The Plaintiffs allege that when Hearst sells a magazine
subscription to a consumer, the consumer's information--including
her name, home address, and magazine subscription preferences--is
stored in a digital database maintained by Hearst. Hearst allegedly
does not ask the consumer to agree to any terms of service or
privacy policy before storing this data.
According to the Plaintiffs, Hearst then packages this information
into what the Plaintiffs call "Data Brokerage Products," which are
sold, licensed, rented, exchanged, and otherwise disclosed to third
parties. These third parties, which the Plaintiffs refer to as the
"Data Brokerage Clients," allegedly include data miners, data
aggregators, data appenders, data cooperatives, list rental
recipients, list exchange recipients, and/or list brokers.
Tiffani Anderson, who represents the Alabama Class, was the first
named plaintiff to file a complaint against Hearst in this action.
After the remaining named plaintiffs filed their respective
complaints, the parties stipulated to consolidating the actions
before this Court. The Plaintiffs, then, filed the Consolidated
Amended Class Action Complaint (the "Complaint").
The Complaint sets forth nine causes of action, alleging violations
of right of publicity statutes in nine jurisdictions: Alabama,
California, Hawaii, Indiana, Nevada, Ohio, South Dakota,
Washington, and Puerto Rico. The Plaintiffs seek statutory damages
and injunctive relief in each jurisdiction, as well as punitive
damages where available. Hearst now moves to dismiss the Complaint
in its entirety.
Hearst argues that Plaintiffs' claims should be dismissed because
they fall outside the scope of the right of publicity statutes. In
the alternative, Hearst contends that, if selling the subscriber
lists violates the right of publicity statutes, then those statutes
would run afoul of the First Amendment.
The Court agrees with Hearst on the statutory interpretation
question, and, thus, need not address the constitutional
challenge.
At its core, Judge Abrams notes that the parties' dispute is over
the scope of the statutory phrase "uses. . . on or in products."
The Plaintiffs argue that Hearst is liable because it "uses" their
names "on or in" the "Data Brokerage Products," which are then sold
to third parties. The Plaintiffs further contend--with no
citation--that these "lists. . . plainly constitute products or
goods" under the right of publicity statutes.
Hearst, on the other hand, argues that the "use" contemplated in
the statutes is limited to "advertising, marketing, promotion,
endorsement, or equivalent commercial activity." Hearst urges the
Court to reject the Plaintiffs' "fiction" that an aggregated list
of names is a product "separate from, and promoted by," the names
themselves.
The Plaintiffs' primary argument is that each right of publicity
statute contains at least two prongs--a "misappropriation" prong
(use of a person's identity "on or in products"), and an
"endorsement" prong (use of a person's identity "for purposes of
advertising")--and that the infringing activity here only
implicates the former.
The Court disagrees. Judge Abrams opines that nothing in the text
of these statutes, the legislative history, or the case law
suggests that misappropriation should be isolated from the
overarching right of publicity. In fact, numerous authorities have
defined the right of publicity by reference to appropriation.
At bottom, Judge Abrams finds the Plaintiffs cannot identify any
case, in any jurisdiction, that supports their interpretation of
the right of publicity statutes as applied to the sale of
subscriber lists. Nor do the Plaintiffs offer any viable limiting
principle for their reading of the statutes.
Accordingly, the Court concludes that Hearst's alleged sale of its
subscriber lists does not implicate the nine right of publicity
statutes at issue, and all of the Plaintiffs' claims are dismissed.
Because the Court finds no statutory violation, the Court does not
reach the alternative question of whether the right of publicity
statutes violate the First Amendment.
For these reasons, the Defendant's motion to dismiss is granted.
The Clerk of Court is requested to terminate the motion pending at
docket number 37 and close this case.
A full-text copy of the Court's Opinion and Order dated Dec. 19,
2022, is available at https://tinyurl.com/5666bkhb from
Leagle.com.
HERSHEY CO: Lazazzaro Sues Over Chocolates' Lead & Cadmium Content
------------------------------------------------------------------
CHRISTOPHER LAZAZZARO, individually and on behalf of all others
similarly situated, Plaintiff v. THE HERSHEY COMPANY, Defendant,
Case No. 2:22-cv-07923 (E.D.N.Y., December 28, 2022) is a class
action against the Defendant for violation of the New York General
Business Law, breach of implied warranty, and unjust enrichment.
According to the complaint, the Defendant is engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
its Hershey's and Lily's dark chocolate products. The Defendant
fails to disclose on the products' packaging that the products
contain lead and cadmium. Consumer Reports Magazine and independent
testing discovered that many of the products contained high levels
of the dangerous chemicals cadmium and lead. As a result of the
Defendant's misrepresentations and omissions, the Plaintiff and
Class members paid a premium for the products. Had the Defendant
disclosed that the products contained lead and cadmium, the
Plaintiff and Class members would not have been willing to pay the
same amount for the products and/or would not have been willing to
purchase the products, says the suit.
The Hershey Company is a manufacturer of chocolate products, with
its principal place of business in Hershey, Pennsylvania. [BN]
The Plaintiff is represented by:
Jason P. Sultzer, Esq.
Daniel Markowitz, Esq.
THE SULTZER LAW GROUP P.C.
85 Civic Center Plaza, Suite 200
Poughkeepsie, NY 12601
Telephone: (845) 483-7100
Facsimile: (888) 749-7747
E-mail: sultzerj@thesultzerlawgroup.com
markowitzd@thesultzerlawgroup.com
- and -
Nick Suciu III, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
6905 Telegraph Road, Suite 115
Bloomfield Hills, MI 48301
Telephone: (313) 303-3472
E-mail: nsuciu@milberg.com
- and -
Gary Klinger, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
221 West Monroe Street, Suite 2100
Chicago, IL 60606
Telephone: (866) 252-0878
E-mail: gklinger@milberg.com
- and -
Trenton R. Kashima, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC
401 West C St., Suite 1760
San Diego, CA 92101
Telephone: (308) 870-7804
E-mail: tkashima@milberg.com
- and -
Charles E. Schaffer, Esq.
David C. Magagna Jr., Esq.
LEVIN SEDRAN & BERMAN
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Telephone: (215) 592-1500
E-mail: dmagagna@lfsblaw.com
cschaffer@lfsblaw.com
- and -
Jeffrey K. Brown, Esq.
LEEDS BROWN LAW, P.C.
1 Old Country Rd., Suite 347
Carle Place, NY 11514
Telephone: (516) 873-9550
E-mail: jbrown@leedsbrownlaw.com
HODINKEE INC: Tenzer-Fuchs Files ADA Suit in E.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Hodinkee, Inc. The
case is styled as Michelle Tenzer-Fuchs, on behalf of herself and
all others similarly situated v. Hodinkee, Inc., Case No.
2:22-cv-07971 (E.D.N.Y., Dec. 30, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Hodinkee -- https://www.hodinkee.com/ -- is a New York City-based
watch website, known as an influential editorial and e-commerce
site for new and vintage wristwatches.[BN]
The Plaintiff is represented by:
Jonathan Shalom, Esq.
SHALOM LAW, PLLC
105-13 Metropolitan Avenue
Forest Hills, NY 11375
Phone: (718) 971-9474
Email: jonathan@shalomlawny.com
KCI TECHNOLOGIES: Denial of Immunity in Slacas Suit Partly Upheld
-----------------------------------------------------------------
In the lawsuit styled STATE OF OHIO ex rel. KATHLEEN SLACAS, et
al., Plaintiffs-Appellees v. KCI TECHNOLOGIES, INC., et al.,
Defendants, PORTAGE COUNTY ENGINEER, et al., Defendants-Appellants,
Case No. 2022-P-0012 (Ohio App.), the Court of Appeals of Ohio,
Eleventh District, Portage County, affirms in part and reverses in
part the decision denying the Portage County Defendants the benefit
of political subdivision immunity.
Defendants-Appellants, the Portage County Engineer; County of
Portage, Ohio; and the Portage County Board of Commissioners (the
"Portage County Defendants") appeal the decision of the Portage
County Court of Common Pleas denying them the benefit of political
subdivision immunity under R.C. Chapter 2744 with regard to certain
tort claims.
On July 16, 2014, Plaintiffs-Appellees, Jessica L. Ayers and other
representative plaintiffs, filed a Class Action Complaint against
KCI Technologies, Inc.; MS Consultants, Inc.; Oscar Brugmann Sand &
Gravel, Inc.; Todd Brugmann; the Portage County Engineer; County of
Portage, Ohio; Romano & Sons Nursery; Pasquale Romano; and Michael
Marozzi. The Plaintiffs are or have been at relevant times
residents or property owners in the Aurora East Subdivision,
Shalersville Township, Portage County.
With respect to the Portage County Defendants, the Complaint
alleged that the Plaintiffs, on behalf of themselves and Class of
similarly situated persons, bring this suit to seek redress for
negligence, continuing nuisance, continuing trespass,
Unconstitutional Taking under both the Ohio and Federal
Constitutions, Writ of Mandamus for Inverse Condemnation, and
injunctive and declaratory relief.
The Plaintiffs alleged that they have been and continue to be
damaged by the negligence, reckless, willful and wanton actions of
the Portage County Engineer's negligent failure to properly
operate, maintain and/or upkeep the Aurora East Storm Drainage
Sewer System, Aurora East roadways, and the drainage from the
aforementioned swamp area that the county has negligently
maintained and alleged unreasonable amounts of water to be diverted
directly into the Aurora East Subdivision.
Additionally, the Plaintiffs alleged that the Portage County
engineer has acted with wanton, willful and reckless disregard for
the rights of the Aurora East residents and property owners.
Alternatively, the Plaintiffs said they are entitled to fair and
just compensation for the County of Portage, Ohio's
unconstitutional taking of their properties under both the Ohio and
Federal Constitution.
In the course of the subsequent litigation, the Plaintiffs
dismissed KCI Technologies, MS Consultants, Todd Brugmann, Romano &
Sons Nursery, and Michael Marozzi as defendants. The Portage County
Board of Commissioners was subsequently added as a defendant.
On Nov. 1, 2018, the trial court certified the following class:
"All persons who own or owned real property in the East
Aurora Subdivision at any time since 1998 and whose property
suffered excessive flooding and/or whose property was unduly
taken or otherwise adversely affected due to any actions on
the part of Defendants causing alterations of surface water
through the Subdivision."
Class certification was affirmed on appeal by this Court in Ayers
v. KCI Technologies, Inc., 2019-Ohio-3614, 131 N.E.3d 1015 (11th
Dist.).
On June 24, 2021, the Portage County Defendants filed a Motion for
Summary Judgment, inter alia, on the grounds that they were
entitled to political subdivision immunity with respect to the
Plaintiffs' claims for negligence, trespass, and nuisance.
On Jan. 12, 2022, the trial court issued an Order and Journal Entry
denying the Motion for Summary Judgment. The Entry did not directly
address the issue of political subdivision immunity.
On Feb. 10, 2022, the Portage County Defendants filed a Notice of
Appeal. On appeal, they raise the following assignment of error:
"The lower court denied the benefit of immunity to
defendants/appellants under Chapter 2744 of the Ohio Revised
Code."
On appeal, the Portage County Defendants assert that they are
"entitled to R.C. Chapter 2744 immunity on the state law tort
claims for negligence, trespass, nuisance, and the state taking
claim for direct monetary damages." They characterize the
Plaintiffs' claims of liability as being essentially based on the
County's failure to upgrade the sewer system in the East Aurora
Subdivision.
Relying on Coleman v. Portage Cty. Engineer, 133 Ohio St.3d 28,
2012-Ohio-3881, 975 N.E.2d 952, Para. 19, the Portage County
Defendants maintain that the failure to upgrade a sewer system
constitutes the construction or design of a system and, thus, is a
governmental function.
To the contrary, the Plaintiffs assert that the repeated flooding
in the Subdivision that is the subject of this case was caused by
design, construction, and lack of maintenance issues as described
in their expert reports. The causes of flooding, as identified by
the expert report, include: "Portage County and the Portage County
Engineer failed to obtain easements, and design and construct the
berms, swales, inlets, and pipe connections from the adjoining
upland drainage areas to the existing Subdivision storm drainage
system. As such, flooding occurs because drainage from adjoining
upland property to the east and west occurs as sheet flow in an
undirected and uncontrolled manner into the Subdivision. Problem
areas include Greenwich, Field, and Nolte Streets."
Judge Matt Lynch, writing for the Panel, notes that the majority of
the causes identified by the Plaintiffs clearly pertain to the
provision or nonprovision, planning or design, construction, or
reconstruction of the sewer system for the East Aurora Subdivision.
Accordingly, they are classified as a governmental function for
which the Portage County Defendants are entitled to tort immunity
apart from their takings claims.
Judge Lynch holds that it is established that the Portage County
Defendants are entitled to immunity except to the extent that they
may be liable for failing to maintain, i.e., keep free of
obstruction and deterioration, the trash rack at the Bartlett Road
culvert and the pipe connecting to the Greenwich Street drainage
intercept.
The final issue, then, is whether there are any statutory defenses
that would restore the Portage County Defendants' immunity with
respect to these maintenance issues. Judge Lynch notes that it is
fairly established, however, that the performance of routine
maintenance, such as the Portage County Defendants are potentially
liable for failing to perform, does not involve the exercise of
judgment or discretion. Accordingly, Judge Lynch holds that they
are not entitled to discretionary immunity.
The Appellate Court's holding applies to the Plaintiffs' tort
claims for negligence, trespass, and nuisance. On appeal, the
Portage County Defendants argue that political subdivision immunity
applies to the Plaintiffs' claim against Portage County for inverse
condemnation pursuant to Article I, Section 19, of the Ohio
Constitution (Count V). In briefing and at oral argument, they
concede that immunity does not apply to takings claims, but assert
that it does to Count V because the Plaintiffs are "seeking direct
monetary damages for inverse condemnation."
Judge Lynch opines that the Portage County Defendants cite no
authority in support of this proposition. Moreover, they did not
raise this argument before the trial court, but, instead, only
argued in their Motion for Summary Judgment that immunity applied
to the Plaintiffs' negligence, trespass, and nuisance claims. Given
the Plaintiffs' failure to raise it in the trial court, the
Appellate Court declines to address it for the first time on
appeal.
To the extent indicated, the sole assignment of error is with
merit, Judge Lynch says.
For these reasons, the Appellate Court holds that the Order and
Journal Entry of the Portage County Court of Common Pleas, denying
the Portage County Defendants the benefit of political subdivision
immunity, is affirmed in part and reversed in part.
Apart from and without regard to the inverse condemnation claims,
the Portage County Defendants are entitled to immunity with respect
to the Plaintiffs' claims for negligence, trespass, and nuisance
except to the extent that these claims are based on their alleged
failure to maintain, i.e., keep free of obstruction and
deterioration, the trash rack at the Bartlett Road culvert and the
pipe connecting to the Greenwich Street drainage intercept. The
matter is remanded for further proceedings consistent with this
Opinion. Costs to be taxed between the parties equally.
JOHN J. EKLUND, P.J., FREDERICK D. NELSON, J., Ret., Tenth
Appellate District, sitting by assignment, concur.
A full-text copy of the Court's Opinion dated Dec. 19, 2022, is
available at https://tinyurl.com/mr4cvc2m from Leagle.com.
Thomas J. Connick -- tconnick@sssb-law.com -- Schneider, Smeltz,
Spieth, Bell, LLP, 1375 East Ninth Street, Suite 900, in Cleveland,
Ohio 44114, and Edward A. Proctor, Kim and Associates, 4100 Embassy
Parkway, Suite 200, in Akron, Ohio 44333, (For the
Plaintiffs-Appellees).
Victor V. Vigluicci, Portage County Prosecutor, and David J.
Garnier, Assistant Prosecutor, 241 South Chestnut Street, in
Ravenna, Ohio 44266, and John D. Pinzone -- jpinzone@mrrlaw.com --
and Frank H. Scialdone -- fscialdone@mrrlaw.com -- Mazanec, Raskin
& Ryder Co., LPA, 100 Franklin's Row, 34305 Solon Road, in
Cleveland, Ohio 44139, (For the Defendants-Appellants).
KHIM'S MILLENNIUM: Fails to Pay Workers' OT Wages, Camillo Alleges
------------------------------------------------------------------
LORENZO VEGA CAMILLO and LETICIA MEJIA ALEJANDRO, on behalf of
themselves and others similarly situated v. KHIM'S MILLENNIUM
MARKET, INC., KHIM'S MILLENNIUM MARKET III INC., KHIM'S MILLENNIUM
MARKET IV, INC., KHIM'S MILLENNIUM MARKET V, INC., KHIMS MILLENNIUM
MARKET VI INC., KHIM'S ORGANIC II INC., KHIM'S ORGANIC IV INC.,
KHIMS ORGANIC V INC., KHIMS MARKET INC., SANG KYU KHIM, SUNG KYU
KHIM, and SONG KYU KHIM, Case No. 1:22-cv-07846 (E.D.N.Y., Dec. 23,
2022) seek to recover unpaid overtime compensation and statutory
penalties for Plaintiffs and their similarly situated co-workers --
stock persons, deli countermen, produce washers, clerks, and other
manual workers -- who worked or have worked at any of Khim's
Millennium markets, pursuant to Fair Labor Standards Act and New
York Labor Law.
From 2013 to March 2020, Mr. Camillo worked 6 days a week, 60-65
hours. He did not receive a lunch break during his workday. From
March 2020 to January 2021, Mr. Camillo worked 7 days a week, 70-77
hours per week. From January 2021 to October 2022, Mr. Camillo
worked 78-85 hours per week.
Ms. Alejandro worked as a clerk for Defendants from February 2022
to October 2022. She worked 65 hours per week.
The Defendants allegedly did not pay Mr. Camillo and Ms. Alejandro
one and a half times his regular rate of pay for hours that he
worked over 40 in a week. The Defendants also did not pay Mr.
Camillo and Ms. Alejandro a spread of hours premium on days when
his shift lasted 10 hour or more, says the suit.
Since at least December 2021, Defendants have not paid Plaintiffs
and the Class members on a weekly basis. Instead, Defendants issued
paychecks to Plaintiffs and the Class members every other
week.[BN]
The Plaintiffs are represented by:
D. Maimon Kirschenbaum, Esq.
Michael DiGiulio, Esq.
JOSEPH KIRSCHENBAUM LLP
32 Broadway, Suite 601
New York, NY 10004
Telephone: (212) 688-5640
Facsimile: (212) 981-9587
KONINKLIJKE PHILIPS: Faces Suit Over Defective Breathing Devices
----------------------------------------------------------------
JOHN ROMPALA, individually and on behalf of all others similarly
situated, Plaintiff v. KONINKLIJKE PHILIPS N.V.; PHILIPS NORTH
AMERICA LLC; and PHILIPS RS NORTH AMERICA LLC, Defendants, Case No.
2:22-cv-01875-JFC (W.D. Pa., Dec. 28, 2022) seeks to obtain relief
for the injuries caused by the Defendants' defective CPAP and BiPAP
breathing devices, which contain polyester-based polyurethane sound
abatement foam ("PE-PUR Foam").
The Plaintiff alleges in the complaint that as a result of his use
of the CPAP machines, he developed a chronic cough, suffered
pneumonia three times in one year, and was diagnosed with a mass in
his left lower lung, resulting in the surgical intervention to
remove the lower half of his left lung.
The Plaintiff and the class also are at risk of suffering from
serious injury, including irritation, inflammatory response,
headache, asthma, adverse effects to other organs, and toxic
carcinogenic affects, says the suit.
KONINKLIJKE PHILIPS NV is a health technology company focused on
improving people's health across the health continuum from healthy
living and prevention, to diagnosis, treatment, and home care. The
Company offers products and services in diagnostic imaging,
image-guided therapy, patient monitoring and health informatics, as
well as in consumer health and home care. [BN]
The Plaintiff is represented by:
David Kennedy Houck, Esq.
Gary J. Ogg
OGG, MURPHY & PERKOSKY, PC
245 Fort Pitt Blvd.
Pittsburgh, PA 15222
Telephone: (412) 471-8500
Facsimile: (412) 471-8503
Email: dhouck@allinfirm.com
gogg@allinfirm.com
LOS ANGELES, CA: Summary Judgment in Apartment Suit Reversed
------------------------------------------------------------
In the case, APARTMENT OWNERS ASSOCIATION OF CALIFORNIA, INC., et
al., Plaintiffs and Appellants v. CITY OF LOS ANGELES, Defendant
and Respondent, Case No. B313439 (Cal. App.), the Court of Appeals
of California for the Second District, Division Four, reverses the
trial court's order granting summary judgment in favor of the City
and remands for further proceedings in light of Zolly v. City of
Oakland (2022) 13 Cal.5th 780.
The City of Los Angeles began a program in 2017 called "recycLA."
Under that program, the City entered into contracts with seven
waste haulers, pursuant to which each hauler would provide
exclusive waste collection services to commercial and multi-unit
dwellings in a designated zone of the city. The contracts provided
that the haulers would pay the City a percentage of their gross
receipts as a "franchise fee."
The Appellants filed the class action complaint in September 2018
against the City, arising out of the latter's implementation of the
recycLA program that "imposed a new commercial system for the
private hauling of waste and garbage from certain multi-unit
dwellings and commercial properties." Appellants Apartment Owners
Association of California, Inc., Daniel C. Faller, Jasbir Dhillon,
Gary Gillman, Anita Haeggstrom, Frederick H. Leeds, individually
and as trustee for the Frederick H. Leeds Intervivos Trust Dated
Nov. 30, 1990, Malcolm Bennett, and 7005 L.P. are a group of
property owners and tenants who were required to pay for and use
waste hauling services under the recycLA system. They sued the
City, arguing that the franchise fees imposed under the program
were effectively a "tax" imposed on them without voter approval in
violation of Proposition 218.
In November 2020, the parties filed cross-motions for summary
judgment and/or summary adjudication. They also filed a joint
stipulation of undisputed facts in connection with those motions.
The trial court granted summary judgment in favor of the City,
finding that the Appellants lacked standing to pursue their claims.
While this appeal was pending, the California Supreme Court decided
Zolly, which addressed a similar challenge to the waste hauling
franchise fees imposed by the city of Oakland. The Zolly court
found that the plaintiffs had adequately alleged that they suffered
"an economic injury caused by the challenged fees," and therefore
had standing to file suit.
Following Zolly, the City concedes that the Court of Appeals must
reverse summary adjudication as to the first cause of action for a
refund of illegal taxes paid as franchise fees and remand for
further proceedings. However, the City argues that the Court of
Appeals may affirm summary adjudication as to the second cause of
action for declaratory relief.
The City contends that the Court of Appeals should affirm summary
adjudication as to the second cause of action for declaratory
relief, because that ruling was unaffected by Zolly. It argues that
Zolly neither addressed a similar claim for declaratory relief nor
undercut the trial court's holding here that appellants had no
redressable injury.
The Court of Appeals disagrees. It finds that the Appellants'
second cause of action seeks a declaration of the same rights that
form the basis for appellants' purported injury. As in Zolly, the
Appellants asserted (and the City did not dispute for purposes of
summary judgment) that the recycLA program "resulted in a drastic
increase in rates charged to customers." They alleged in their
first cause of action that such injury was caused by the
monopolistic system created under the franchise agreements and the
pass-through nature of the franchise fees. As such, they have shown
"economic injury caused by the challenged fees sufficient to confer
standing." Thus, the Appellants have standing to assert both
claims.
The parties also disagree as to the posture of the case upon
remand. The Appellants ask the Court of Appeals to direct the trial
court to reconsider the cross-motions for summary judgment under
Zolly, while the City contends that those motions are now moot and
the "parties should litigate anew whether the franchise fees are
taxes in light of Zolly."
The City's reliance on Barnes v. Litton Systems, Inc. (1994) 28
Cal.App.4th 681, 683 (Barnes) is misplaced, the Court of Appeals
opines. In Barnes, the court simply held that "reversal of a
judgment places the case in a posture as though one had never been
entered at all." The City cites no authority for the proposition
that the trial court must act as though motions for summary
judgment were never filed. Having reversed the trial court's
granting of summary judgment on the basis of standing, the Court of
Appeals remands for further proceedings. It leaves to the trial
court's discretion how best to proceed on the summary judgment
motions in light of Zolly following remand, and expresses no
opinion as to the substantive issues raised.
For these reasons, the Court of Appeals reverses the judgment and
remands the matter to the trial court for further proceedings in
light of Zolly. The parties are to bear their own costs on appeal.
A full-text copy of the Court's Dec. 28, 2022 Opinion is available
at https://tinyurl.com/2p8hzsum from Leagle.com.
Arias Sanguinetti Wang & Torrijos, Mike Arias --
mike@aswtlawyers.com -- Arnold C. Wang -- arnold@aswtlawyers.com --
Alfredo Torrijos -- alfredo@aswtlawyers.com; Peluso Law Group and
Larry A. Peluso; Shining Law Firm and Carolin K. Shining, for
Plaintiffs and Appellants Apartment Owners Association of
California, Inc., Daniel C. Faller, Jasbir Dhillon, Gary Gillman
and Anita Haeggstrom.
Kellner Law Group and Richard L. Kellner -- rlk@kbklawyers.com;
Kabateck and Brian S. Kabateck -- bsk@kbklawyers.com; Ervin Cohen
Jessup, Geoffrey M. Gold and Jeffrey T. Harlan, for Plaintiffs and
Appellants Frederick H. Leeds individually and as trustee for the
Frederick H. Leeds Intervivos Trust dated November 30, 1990,
Malcolm Bennett and 7005 L.P.
Michael N. Feuer, City Attorney, Scott Marcus and Blithe S. Bock,
Assistant City Attorneys, Maureen Home, Sara Ugaz, Deputy City
Attorneys for the Defendant and Respondent.
M & J IRONWORKS: Underpays Construction Workers, Lunavictoria Says
------------------------------------------------------------------
SEGUNDO VINCENTE LUNAVICTORIA, individually and on behalf of all
others similarly situated, Plaintiff v. M & J IRONWORKS INC. d/b/a
M&J IRON WORKS, and FRANKLIN DE ROSARIO, individually, Defendants,
Case No. 1:22-cv-07928 (E.D.N.Y., December 28, 2022) is a class
action against the Defendants for violations of the Fair Labor
Standards Act and the New York Labor Law including failure to pay
overtime wages, failure to pay minimum wages, and failure to
furnish accurate wage statements.
The Plaintiff worked for the Defendants as a welder and
construction worker at various jobsites in New York City and Nassau
County from June 2016 through August 3, 2022.
M & J Ironworks Inc., doing business as M&J Iron Works, is a metal
fabrication and construction company based in Brooklyn, New York.
[BN]
The Plaintiff is represented by:
Andrew C. Weiss, Esq.
Alexander T. Coleman, Esq.
Michael J. Borrelli, Esq.
BORRELLI & ASSOCIATES, PLLC
910 Franklin Avenue, Suite 200
Garden City, NY 11530
Telephone: (516) 248-5550
Facsimile: (516) 248-6027
MACHINERY EQUIPMENT: Acosta Sues Over Failure to Pay OT Wages
-------------------------------------------------------------
EDWIN OSWALDO MARIN ACOSTA, individually and on behalf of all
others similarly situated, Plaintiff v. MACHINERY EQUIPMENT
REBUILDER INC. and PAUL MICHAEL MILLER, as an individual,
Defendants, Case No. 1:22-cv-07539 (E.D.N.Y., December 13, 2022) is
a collective action complaint brought against the Defendants for
their alleged egregious violations of the Fair Labor Standards Act
and the New York Labor Law.
The Plaintiff was employed by the Defendants from in or around
March 2020 until in or around August 2022 as a repair worker and
laborer while performing related miscellaneous duties for the
Defendants.
The Plaintiff alleges that the Defendants did not pay him overtime
compensation at the legally mandated overtime rate although he
regularly worked approximately 66 hours or more hours each week. In
addition, the Defendants failed to timely pay him. Instead of
paying him on a weekly basis, the Defendants paid him on a
bi-weekly basis. The Plaintiff also asserts that the Defendants
failed to keep payroll records and failed to post notices of the
minimum wage and overtime wage requirements in a conspicuous place
at the location of their employment. Moreover, the Defendants
willfully failed to provide him with any wage statements, and with
a written notice of his applicable regular rate of pay, regular pay
day, and all such information as required by NYLL, says the
Plaintiff.
On behalf of himself and all other similarly situated manual
workers and laborers, the Plaintiff seeks unpaid overtime wages,
liquidated damages, pre- and post-judgment interest, litigation
costs together with reasonable attorneys' fees, and other relief as
the court deems necessary and proper.
Machinery Equipment Rebuilder Inc. provides grinding, welding,
boring, honing, gear-cutting & gear-manufacturing, CNC Machining,
drilling, tool & die services. Paul Michael Miller is the owner and
operator of the Corporate Defendant. [BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Tel: (718) 263-9591
MAIN LINE HEALTH: Faces Smart Suit Over Breach of Medical Data
--------------------------------------------------------------
DAVID SMART, individually and on behalf of all others similarly
situated, Plaintiff v. MAIN LINE HEALTH and META PLATFORMS, INC.,
Defendants, Case No. 2:22-cv-05239 (E.D. Pa., Dec. 30, 2022)
alleges violation of the Electronic Communications Privacy Act
("ECPA"), and the Stored Communications Act ("SCA"), seeking
redress against the Defendants' practice of capturing and sharing
statutorily-protected health care information, medical records and
related information for commercial gain without the knowledge or
consent of the Defendants' patients.
According to the complaint, the Defendants have violated the ECPA
and SCA by accessing and sharing patients' health care information,
medical records, and related information without their knowledge or
consent. The Defendants encourages patients to use its various web
properties, including www.mainlinehealth.org and the MLH MyChart
online portal ("MLH MyChart portal") to manage their healthcare
services by, among other things, scheduling appointments, viewing
test results, requesting prescriptions, and making payments.
The Defendants worked together to design and place computer code on
its web properties that secretly tracks patients' protected
healthcare information (i.e., appointments, procedures, medicines)
and metadata generated from their interaction with the site (i.e.,
IP address, searches, location information) and automatically sends
all of this information to Meta where it is used both to build-out
Meta's user profiles and generate targeted advertising on its
social media platforms, all to the Defendants' financial benefit,
says the suit.
Main Line Health, Inc. provides hospital-based medical services.
The Hospital offers emergency care, women's health, orthopedics,
and other health care services. Main Line Health serves patients in
the State of Pennsylvania. [BN]
The Plaintiff is represented by:
David J. Cohen, Esq.
STEPHAN ZOURAS, LLP
604 Spruce Street
Philadelphia, PA 19106
Telephone: (215) 873-4836
Email: dcohen@stephanzouras.com
- and -
Ryan F. Stephan, Esq.
James B. Zouras, Esq.
Teresa M. Becvar, Esq.
STEPHAN ZOURAS, LLP
100 N. Riverside Plaza, Suite 2150
Chicago, IL 60606
Telephone: (312) 233-1550
Email: rstephan@stephanzouras.com
jzouras@stephanzouras.com
tbecvar@stephanzouras.com
MOLINA HEALTHCARE: Underpays Customer Service Reps, Henderson Says
------------------------------------------------------------------
BRITTANY HENDERSON, on behalf of herself and all other persons
similarly situated, Plaintiff v. MOLINA HEALTHCARE, INC.,
Defendants, Case No. 2:22-cv-09033 (C.D. Cal., December 13, 2023)
brings this complaint as a collective action against the Defendant
as a result of its alleged unlawful practices and policies that
violated the Fair Labor Standards Act.
The Plaintiff was employed by the Defendant as a remote customer
service representative in Louisiana from approximately April 14,
2022 to October 20, 2022.
The Plaintiff claims that she and other similarly situated CSRs
regularly worked more than 40 hours per workweek. However, the
Defendant arbitrarily failed to count their time spent starting and
logging into the Defendant's computer systems, numerous software
applications, and phone systems, which constituted a part of their
principal activities, as part of their hours worked. As a result,
the Defendant failed to properly compensate them for all hours
worked. Despite working more than 40 hours per week, the Defendant
failed to pay them proper overtime compensation at the rate of one
and one-half times their regular rates of pay for all hours worked
in excess of 40 per workweek. In addition, the Defendant failed to
make, keep and preserve records of the unpaid work performed by him
and other similarly situated CSRs, says the Plaintiff.
The Plaintiff seeks actual damages for unpaid wages, for himself
and other similarly situated CSRs, against the Defendant as well as
liquidated damages, pre- and post-judgment interest, attorneys'
fees, costs, and disbursements, and other relief as the Court deems
just and proper.
Molina Healthcare, Inc. operates call centers. [BN]
The Plaintiff is represented by:
Jeffrey Wilens, Esq.
Macy Wilens, Esq.
LAKESHORE LAW CENTER
18340 Yorba Linda Blvd., Suite 107-610
Yorba Linda, CA 92886
Tel: (714) 854-7205
Fax: (714) 854-7206
E-mail: jeff@lakeshorelaw.org
macy@lakeshorelaw.org
- and -
Anthony J. Lazzaro, Esq.
Matthew S. Grimsley, Esq.
THE LAZZARO LAW FIRM, LLC
34555 Chagrin Boulevard, Suite 250
Moreland Hills, OH 44022
Tel: (216) 696-5000
Fax: (216) 696-7005
E-mail: anthony@lazzarolawfirm.com
matthew@lazzarolawfirm.com
MONSCHEIN INDUSTRIES: Denial of Arbitration in Ramos Suit Upheld
----------------------------------------------------------------
In the lawsuit captioned ISAAC RAMOS, Plaintiff and Respondent v.
MONSCHEIN INDUSTRIES, INC., Defendant and Appellant, Case No.
F083299 (Cal. App.), the Court of Appeals of California, Fifth
District, affirms the order denying Monschein's motion to compel
arbitration of certain claims.
Monschein Industries, Inc., appeals from an order (subject order)
denying Monschein's motion to compel arbitration of certain claims
brought by Isaac Ramos in his first amended class and
representative Private Attorneys General Act of 2004 action
complaint (FAC) filed in the Superior Court of the State of
California for the County of Stanislaus.
Monschein hired Ramos as a nonexempt, at-will employee in December
2014. Monschein terminated his employment on Aug. 6, 2020.
On Oct. 1, 2020, Ramos, on behalf of himself and all other
similarly situated nonexempt employees, filed a class action
lawsuit against Monschein alleging various Labor Code and
Industrial Welfare Commission wage order violations, unfair
competition in violation of Business and Professions Code section
17200, et seq., and a related PAGA claim seeking civil penalties,
attorney fees and costs.
On Oct. 13, 2020, Ramos filed his FAC alleging the same (or
similar) violations as his original complaint, and an additional
claim. Specifically, he alleged causes of action for (1) failure to
pay minimum wages; (2) failure to pay overtime wages; (3) failure
to provide required meal periods; (4) failure to provide required
rest periods; (5) failure to provide accurate, itemized wage
statements; (6) waiting time penalties; (7) unfair competition; and
(8) a related PAGA claim.
On Oct. 20, 2020, the parties agreed to participate in mediation.
The mediation was scheduled for April 13, 2021, the earliest,
mutually convenient date for all participants.
On Dec. 1, 2020, Monschein answered Ramos's FAC with a general
denial and asserted 28 affirmative defenses. Monschein did not
assert an affirmative defense related to the existence of an
arbitration agreement.
On Jan. 8, 2021, Monschein filed a case management conference
statement and, on Jan. 13, 2021, filed an amended case management
conference statement. The form adopted for mandatory use for such
statements asks the parties to "[i]ndicate the ADR process or
processes that the party or parties are willing to participate in,
have agreed to participate in, or have already participated in
(check all that apply and provide the specified information)."
Monschein did not check the box for "Binding private arbitration"
on its Jan. 8, 2021, case management conference statement.
The mediation went forward on April 13, 2021, but was unsuccessful.
That afternoon, Monschein's attorney wrote Ramos's attorney,
indicated Monschein wanted to depose Ramos, and requested his
counsel provide dates he could be made available for the
deposition. On April 19, 2021, Monschein's attorney reiterated her
request to Ramos's counsel. Fifteen minutes later, Monschein's
attorney wrote Ramos's counsel indicating Monschein intended to
demand arbitration and Monschein would "hold off before initiating
depositions."
Over the course of the next two weeks, the parties' attorneys met
and conferred concerning Monschein's stated intent to demand
arbitration. The attorneys set forth their competing positions
concerning the enforceability of the arbitration agreement. Ramos's
counsel indicated he would oppose a motion to compel arbitration.
At some point in time, Ramos had propounded a single interrogatory
to Monschein seeking contact information for the lawsuit's class
members employed by Monschein during the period of "October 1,
2026, to the present." On May 20, 2021, before Monschein had
formally demanded arbitration, Monschein responded to the
interrogatory indicating, among other things, the request was
unintelligible and Monschein could not "discern which individuals
it will employee 6 years in the future."
On May 24, 2021, Monschein's counsel sent Ramos's counsel a formal
demand to arbitrate Ramos's "individual claims" against Monschein.
The following day, Ramos's attorney reiterated Ramos's intent to
oppose a petition to compel arbitration.
On June 9, 2021, Monschein filed a motion to compel arbitration of
Ramos's individual claims, to stay or dismiss those claims, and to
dismiss the class action claims (motion to compel arbitration). In
support of its motion to compel arbitration, Monschein filed a
declaration of Lisa Hickson (HR manager Hickson) in which she made
the following averments: HR manager Hickson was the human resources
manager for Monschein. She was responsible for, among other things,
overseeing the new hire orientation of all new employees. Her
pattern and practice included meeting with newly hired employees
and discussing with them all forms and policies necessary for
employment as outlined in a new hire orientation checklist and
Monschein's Employee Handbook.
HR manager Hickson's standard practice in meeting with newly hired
employees was to provide them with "all the required employment
forms," including "a tax packet including the W2, and I9, an Injury
and Prevention packet, a Heat Illness Prevention packet, the
Employee Handbook and separate acknowledgment forms pertaining to
each." She, then, explains to the new hires they need to review the
forms and she asks them to confirm their understanding of the forms
"by signing and dating each one where required." If the new hire is
not set to begin employment that day, then he or she may review the
forms on site or take them home and return them the next day. Upon
return of the forms, she signs as a representative of the company
and signs the new hire checklist to acknowledge the new hires have
received and acknowledged all the employment policies and forms.
On July 8, 2021, Ramos filed his opposition to Monschein's motion
to compel arbitration. His declaration in support of his opposition
contained, among others, the following averments: Ramos learned
from his lawyers that he had signed a document containing an
arbitration provision and that he did not know what arbitration was
until his lawyers informed him. He did not know that arbitration
would require that he waive any rights he had to pursue a dispute
or claim about his employment in court. He indicated he would never
agree to sign a document that would give up his rights to file a
lawsuit against Monschein in court and with the aid of a jury.
On July 14, 2021, Monschein filed its reply in support of its
motion to compel arbitration.
The motion to compel arbitration was heard on July 21, 2021. A
minute order was thereafter provided in which the trial court
modified its tentative ruling, granted Monschein's requests for
judicial notice, and denied the motion to compel arbitration. In
its modified tentative ruling, the court found that an arbitration
agreement did exist.
The trial court further found Ramos's "claims that the contract is
illusory because the employer can unilaterally change it; shortens
the statute of limitations period; and fails to provide the text of
the rules governing the arbitrator selection process or discovery
are unavailing." However, the court found Ramos's claims that the
arbitration agreement substantially impairs his statutory rights
(re: attorney's fees, sharing the costs of arbitration, and the
lack of judicial review) and that it lacks mutuality are
persuasive.
The trial court declined to exercise its discretion to "to sever
the unconscionable provisions" of the arbitration agreement due to
the "multiple concerns" it had with the agreement. Moreover,
because the court denied the motion to compel arbitration due to
unconscionability, it did not reach Ramos's claim that Monschein
had waived its right to compel arbitration.
On Aug. 30, 2021, the trial court issued the subject order adopting
its modified tentative ruling and denying Monschein's motion to
compel arbitration.
On Sept. 1, 2021, Monschein timely appealed the subject order.
The arbitration provision at issue is contained in Monschein's
"Employee Policy Handbook" dated June 1, 2002 (Employee Policy
Handbook). The provision is part of section 25 of the Employee
Policy Handbook containing provisions relating to mediation and
Monschein's "Open Door Policy."
On Dec. 8, 2014, Ramos signed an "Employee Acknowledgement of
Monschein Industries, Inc. Employee Policy Handbook" (Employee
Policy Handbook Acknowledgement). The acknowledgement was likewise
signed by HR manager Hickson on behalf of Monschein.
Judge Rosendo Pena, Jr., writing for the Panel, notes that the
undisputed evidence demonstrates Ramos, by executing the Employee
Policy Handbook Acknowledgement, acknowledged receipt of the
Employee Policy Handbook, which contained the arbitration provision
at issue.
In opposing Monschein's motion to compel arbitration, Ramos argued
both that Monschein had waived any right to compel arbitration and
that the arbitration provision in the Employee Policy Handbook was
unconscionable. Because the Appellate Court concludes in this
Opinion that the trial court did not err in determining the
arbitration provision was unconscionable, and did not abuse its
discretion in declining to sever portions of the arbitration
provision in an effort to cure its deficiencies, the Appellate
Court need not determine whether Monschein waived any right to
compel arbitration.
The Appellate Court concludes there is a sufficient amount of
procedural unconscionability to subject the arbitration provision
in Monschein's Employee Policy Handbook to analysis for substantive
unconscionability.
Judge Pena explains that the procedural unconscionability is not
minimal and the factors supporting this conclusion include (1) the
adhesive nature of the provision; (2) the limited time Ramos had to
review the Employee Policy Handbook among the many other documents
he received on his first day of employment; (3) the arbitration
provision was prolix, and positioned at pages 19 and 20 of the
single-spaced Employee Policy Handbook, without any means of
directing Ramos's attention to the provision (e.g., by setting it
out in type different from the remainder of the document, or by
requiring Ramos to initial the provision); (4) no one at Monschein
reviewed the arbitration agreement with him, a fact not actually
controverted by the declaration of HR manager Hickson; and (5) the
ambiguous reference to governing rules of the American Arbitration
Association (AAA) which did not correspond to the title of the
asserted AAA rules Monschein now contends are applicable.
The Appellate Court further concludes there was a high degree of
substantive unconscionability in the arbitration provision. The
provision lacks any semblance of mutuality. It defines arbitration
in a manner that expressly encompasses Ramos's claims and is
limited to those claims. Nowhere in the arbitration provision is
there any reference to the arbitration of Monschein's potential
claims against Ramos. Considering the relevant provisions as a
whole, the inescapable conclusion is that the arbitration provision
is unfairly one-sided, Judge Pena points out.
The Appellate Court also concludes the trial court did not abuse
its discretion by declining to sever clauses within the arbitration
provision in an attempt to cure the provision's lack of mutuality.
The Appellate Court, therefore, affirms the subject order denying
Monschein's motion to compel arbitration of certain claims brought
by Ramos in his FAC. Ramos is entitled to his costs on appeal.
A full-text copy of the Court's Opinion dated Dec. 19, 2022, is
available at https://tinyurl.com/4svywewh from Leagle.com.
Murphy, Pearson, Bradley & Feeney, Heather A. Barnes --
hbarnes@mpbf.com -- Jonathan M. Blute -- jblute@mpbf.com -- Merri
N. Engler -- nengler@mpbf.com -- for the Defendant and Appellant.
Falakassa Law, Joshua S. Falakassa -- josh@falakassalaw.com --
Bokhour Law Group, Mehrdad Bokhour -- mehrdad@bokhourlaw.com --
Ferber Law, Michelle Finkel Ferber -- mferber@ferberlaw.com -- and
Jennifer R. Lucas -- jlucas@ferberlaw.com -- for the Plaintiff and
Respondent.
MYLAN INC: Files Motion for Judgment on Pleadings in EpiPen Suit
----------------------------------------------------------------
Sandy Victor, writing for Law Street, reports that defendants in
the long-running EpiPen Purchaser Litigation pending in the
District of Minnesota filed a motion for partial judgment on the
pleadings. The class action alleges that Mylan and other defendants
artifically inflated the price of the essential medical device.
The plaintiffs' First Amended Consolidated Class Action Complaint,
filed in October 2021, provides a brief summary of the action:
"Plaintiffs bring this action on behalf of a proposed class of
direct purchasers of EpiPen, EpiPen Jr., EpiPen 2-Pak, and EpiPen
Jr. 2-Pak and generic versions of these products . . . from Mylan
[defendants Mylan, Inc. and Mylan Specialty L.P.] to recover
overcharges due to Mylan's and the Defendant PBMs' [Pharmacy
Benefit Managers'] illegal conduct which led to artificial
inflation of the list prices for EpiPen (and Mylan-sold generic
EpiPen) in the United States."
The two named plaintiffs are Rochester Drug Co-Operative, Inc. and
Dakota Drug, Inc. The defendants are the two Mylan entities
identified above and entities related to CVS/Caremark, Express
Scripts and OptumRx, Inc. (the "PBMs" in the Amended Complaint).
The litigation has been narrowed, both as to dismissal of claims
and parties, since the filing of the First Amended Complaint. The
action still encompasses both RICO and anti-trust based claims.
There are two RICO causes of action, and Mylan and the PBMs have
moved to dismiss them "to the extent they rely on the following
state laws as direct RICO predicates or as RICO predicates under
the Travel Act . . ." The motion addresses the statutory provisions
of eight states, and those provisions generally deal with
commercial bribery and kickbacks, allegations that are essential to
the RICO claims and supportive of the claim of price inflation. If
successful, the motion will eliminate completely or significantly
narrow any remaining RICO aspects of the case.
Interim co-lead counsel for the direct purchaser class are Berger
Montague PC and Garwin Gerstein & Fisher LLP. Counsel for the
CVS/Caremark entities are Faegre, Drinker, Biddle & Reath LLP and
Williams & Connolly LLP.
Counsel for the Express Scripts related defendants are Quinn
Emanuel Urquhart & Sullivan, LLP and Spencer Fane LLP. Counsel for
Optum, Rx Inc. are Alston & Bird LLP and Stinson LLP. Counsel for
the Mylan defendants is Hogan Lovell's US LLP. [GN]
NFL: Denial of Kashama's Objection to Concussion Suit Award Upheld
------------------------------------------------------------------
In the case, IN RE: NATIONAL FOOTBALL LEAGUE PLAYERS CONCUSSION
INJURY LITIGATION. Alain Kashama, Appellant, Case No. 22-2441 (3d
Cir.), the U.S. Court of Appeals for the Third Circuit affirms the
District Court's order denying Kashama's objection to his
individual monetary award pursuant to a settlement agreement.
Kashama was a professional football player who spent a few seasons
playing in the NFL. Like many other players, he incurred serious
head injuries. Kashama was a member of a class of plaintiffs who
sued the NFL to compensate them for these injuries and resultant
chronic conditions. That class of plaintiffs was certified pursuant
to Federal Rule of Civil Procedure 23 and the parties reached a
negotiated settlement. The Third Circuit affirmed the District
Court's certification of the class and approval of the settlement.
The class members were given an opportunity to opt out of the
settlement, and those who chose not to opt out are bound by the
agreement's terms. As part of the settlement, the class members
agreed to release, among other things: (1) any claims that "could
have been asserted in the Class Action" and (2) any claims relating
to "head, brain and/or cognitive injury," "concussions and/or
subconcussive events," and "CTE" that could have been asserted
against the NFL. The release provision was expressly incorporated
into the District Court's judgment.
Under the Settlement Agreement, a class member must take certain
steps to receive a monetary award. The Third Circuit has previously
held that the Settlement Agreement's opt-out and claims processes
are reasonable.
Kashama did not opt out. He registered to participate, received a
diagnosis of neurocognitive impairment at "Level 1.5" under the
Settlement Agreement, and submitted a claim package to the
designated Claims Administrator, who determined the amount of his
monetary award to be just shy of $500,000. Kashama appealed his
award and the Special Master affirmed. Kashama objected to the
Special Master's decision; the District Court denied his objection.
Kashama filed a notice of appeal. The Third Circuit Clerk alerted
Kashama that his appeal was subject to possible dismissal under 28
U.S.C. Section 1915 or summary action. Kashama has filed a brief
and documents in support of his appeal.
The Third Circuit explains that the District Court had continuing
jurisdiction after the parties settled because the terms of the
Settlement Agreement were expressly incorporated into the judgment.
Its order denying Kashama's objection to his individual award
finally resolved the particular claim at issue, so it is a final,
appealable order under 28 U.S.C. Section 1291.
Kashama asserts that he is entitled to a greater amount than was
awarded to him because of his "special damages" totaling $22.8
million, arguing that his award is not sufficient to cover his lost
wages and medical expenses arising from his head injuries.
These are precisely the kinds of claims that are covered by the
Settlement Agreement's release provision, which the Third Circuit
has already affirmed. Moreover, the documents that Kashama
submitted in support of his appeal show that his claim proceeded
according to the terms of the Settlement Agreement. While Kashama
disagrees specifically with the assessment of his injuries under
the claims process, and generally with the thresholds for
compensation that were developed under the Settlement Agreement, he
does not identify any actions by the District Court that "rest on a
clearly erroneous finding of fact, an errant conclusion of law[,]
or an improper application of law to fact."
Accordingly, Kashama's appeal does not present a substantial
question, and the Third Circuit summarily affirms the District
Court's order.
A full-text copy of the Court's Dec. 28, 2022 Opinion is available
at https://tinyurl.com/msdvedtu from Leagle.com.
OCEAN PARK: Thurmond Class Suit Seeks Minimum & OT Wages Under FLSA
-------------------------------------------------------------------
Justin Thurmond, on behalf of himself and others similarly situated
in the proposed FLSA Collective Action v. Ocean Park Market Corp.,
and Ahmed Alsaedi, Case No. 1:22-cv-07849 (E.D.N.Y., Dec. 25, 2022)
seeks to recover unpaid minimum wages, unpaid overtime wages,
liquidated and statutory damages, pre- and post-judgment interest,
and attorneys' fees and costs, and injunctive and declaratory
relief pursuant to the Fair Labor Standards Act, the New York State
Labor Law, and the NYLL's Wage Theft Prevention Act.
From April 2022 to August 2022 to, and including, March 2020, Mr.
Thurmond regularly worked six days per week, for a total period of
46 hours during each of the weeks. From April 2022 to June 2022, he
was paid a flat hourly rate of $13 per hour, for all hours worked,
and from July 2022 to August 2022, he was paid a flat hourly rate
of $15 per hour.
Accordingly, the Defendants did not compensate the Plaintiff for
one hour's pay at the basic minimum hourly wage rate for each day
his shift exceeded 10 hours. The Defendants also never granted the
Plaintiff with meal breaks or rest periods of any length. The
Defendants did not provide Plaintiff a statement of wages, and did
not give any notice to the Plaintiff of his rate of pay. The
Defendants did not pay the Plaintiff at the rate of one and
one-half times his hourly wage rate for hours worked in excess of
40 per workweek, says the suit.
The Plaintiff was employed as a prep cook, deli man and general
worker at Ocean Park Market.
Ocean Park provides leisure and recreational services.[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
OTTAWA, ON: Taxi Industry's Discrimination Claims Goes to Court
---------------------------------------------------------------
Josh Pringle, writing for CTV News Ottawa, reports that an Ottawa
courtroom is the next stop for the taxi industry's legal fight with
the city of Ottawa over the arrival of Uber and other ride-sharing
services.
Members of Ottawa's taxi industry launched the $215 million
class-action lawsuit in April 2016, alleging the city did not
protect drivers and the industry when ride-sharing services hit
city streets. The suit also claims the city discriminated against
minority taxi plate holders by failing to enforce its own bylaw and
changing the bylaw to allow private transportation companies.
Arguments in the class-action lawsuit were set to begin on Tuesday,
Jan. 3 at 10 a.m.
The lead plaintiffs in the lawsuit are Metro Taxi Ltd., co-owner
Marc Andre Way and Iskhak Mail, with the lawsuit seeking damages on
behalf of taxi plate owners and brokers.
By failing to enforce its own bylaw and changing the Taxi Bylaw,
the city discriminated on the basis of race, colour, ancestry,
ethnic or national origin, religion or creed, language, place of
origin or citizenship contrary to the Canadian Charter of Rights
and Freedoms and the Ontario Human Rights Code
The city is using a system which penalizes taxi cab plate holders
when a plate is sold. "They are charging a transfer fee when the
asset (plate) is worthless."
The lawsuit was launched just months before ride-sharing services
like Uber were legally allowed to operate in the city of Ottawa.
Uber first arrived in Ottawa in October 2014, and the city of
Ottawa changed the taxi bylaws to allow "private transportation
company" licenses in 2016.
Under Ottawa's Taxi Bylaw, taxi brokers must hold a license issued
by the city of Ottawa and may only dispatch taxicabs with taxi
plates. The taxicab with its plate and authorized driver must meet
conditions and regulations to operate on Ottawa roads.
The taxi industry says the city allowed ride-sharing services to
operate in Ottawa with "far fewer restrictions and with much lower
costs than taxis."
"And since that time, taxi plate owners and brokers have paid the
price," said a statement from Coventry Connections about the
lawsuit, which operates Blue Line, Capital Taxi and West-Way Taxi
in Ottawa.
"Their plates have significantly diminished in the market trading
place, business has suffered with fewer customers taking taxis and
their investments in the future have been rendered valueless."
The statement from Coventry Connections says while the city of
Ottawa's taxi bylaw is still in effect, "the environment has
changed completely" and the value of taxi plates have dropped.
"With more cars than customers on the road, it is very difficult
for taxi drivers to make a living," the statement says.
"When Uber entered the picture, the City's support for the plate
system became totally ineffective and the collaboration with the
taxi industry came to a sudden halt. The City abandoned its
commitment to the taxi industry to the detriment of the taxi
stakeholders who had relied on the City's position for over 40
years."
When the taxi industry's lawsuit was certified in 2018, the city
said it would "vigorously defend against the allegations set out in
the lawsuit."
The statement of claim from the taxi industry has not been tested
in court. [GN]
PENNSYLVANIA: Review of DOC's Smoking Policy in Thompson Dismissed
------------------------------------------------------------------
In the case, Anthony Ray Thompson, Petitioner, v. Pennsylvania
Department of Corrections, Respondent, Case No. 103 M.D. 2022 (Pa.
Cmmw.), Judge Anne E. Covey of the U.S. Commonwealth Court of
Pennsylvania sustains Pennsylvania Department of Corrections'
preliminary objection to Thompson's pro se Petition for Review and
dismisses the Petition.
As a consequence of a class action lawsuit nonsmoker inmates filed
against the Pennsylvania Department of Corrections (DOC), on June
24, 2019, a Bulletin Notice amended DC-ADM 801 Misconducts to read
"Section VIII Rules, B. General Rules, 9. and Subsection D.
Misconduct Charges B. Class I and C. Class II will now read: 9. The
Clean Indoor Air Act prohibits smoking inside 'public buildings.'"
The DC-ADM 801 amendment added that tobacco and additional
accessories were then considered contraband.
On Aug. 29, 2020, Thompson, while incarcerated at State
Correctional Institution (SCI)-Forest, filed a grievance concerning
the cost of electronic cigarettes that was denied on Sept. 1, 2020,
because the grievance did not indicate that he was personally
affected by a DOC or facility action or policy. On Sept. 4, 2020,
Thompson appealed from the grievance denial. Thereafter, the appeal
was denied for the same reason the grievance was denied.
On Feb. 4, 2021, Thompson, while incarcerated at SCI-Albion, filed
a grievance claiming that E-Cigarettes are more harmful than
tobacco. The SCI-Albion Grievance Coordinator and Superintendent
denied the grievance. Thompson appealed therefrom to the Grievance
Coordinator of Inmate Appeals at DOC's Central Office.
On May 24, 2021, Thompson's appeal was denied because group
grievances filed on 'behalf of another inmate' are prohibited. The
denial further stated that the grievance did not indicate that
Thompson was personally affected by a DOC or facility action or
policy, and the issues presented in the grievance had been reviewed
or are currently being reviewed and addressed.
On Jan. 24, 2022, Thompson filed the Petition alleging therein that
the unconstitutional enforcement of the Clean Indoor Air Act
violates the Grandfather Clause of the United States (U.S.)
Constitution and state law.
In the Petition, Thompson seeks: (1) a trial by jury; (2) a
determination that the "Grandfather Clause" outweighs the Clean
Indoor Air Act; (3) attorney fees; (4) punitive damages in the sum
of $1 million; and (5) an order directing DOC to delete from its
amended policy that inmates are prohibited from purchasing tobacco
items and their accessories alike, and allow such items to again be
purchased.
On April 12, 2022, DOC filed its Preliminary Objection averring
that Thompson failed to state a valid claim for relief (demurrer).
On April 28, 2022, Thompson filed an Answer thereto.
DOC argues that Thompson cannot establish a constitutional
entitlement to use or purchase tobacco products in prison.
Specifically, it contends that, even accepting Thompson's averments
as true, he has failed to state a valid claim for relief.
At the outset, Judge Covey says it must be emphasized that there is
no constitutional right to smoke in a jail or prison. Moreover, in
general, allegations that DOC failed to follow its regulations or
internal policies cannot support a claim based upon a vested right
or duty because these administrative rules and regulations, unlike
statutory provisions, usually do not create rights in prison
inmates.
Judge Covey states that the law is well settled that DOC has broad
discretion to fashion policies about what property inmates may
possess, and to modify those policies as security needs evolve or
change.
Section III of DOC Policy 1.1.7, Clean Indoor Air Act (Policy),
provides: "It is the policy of DOC to provide a smoke-free
environment consistent with Senate Bill No. 246 of 2007, Clean
Indoor Air Act." However, Section VI of the Policy warns that this
Policy does not create rights in any person nor should it be
interpreted or applied in such a manner as to abridge the rights of
any individual.
DOC asserts that it amended the Policy to comply with the Clean
Indoor Air Act that prohibits smoking in public places. Certainly,
the Clean Indoor Air Act's enactment was a rational reason for DOC
to amend the Policy. Because smoking is a privilege, not a right,
DOC's Policy restricting the privilege does not violate the U.S.
Constitution or state law.
Accepting as true all well-pleaded material allegations in the
Petition, as well as all inferences reasonably deduced therefrom,
as this Court must, it appears with certainty that the law will not
permit recovery. Because Thompson has clearly failed to state a
claim for which relief can be granted," DOC's Preliminary Objection
is sustained, and Thompson's Petition is dismissed.
A full-text copy of the Court's Dec. 28, 2022 Opinion is available
at https://tinyurl.com/59ht7edh from Leagle.com.
PETS GLOBAL: C.D. California Issues Judgment in Gifford Class Suit
------------------------------------------------------------------
Judge Cormac J. Carney of the U.S. District Court for the Central
District of California entered a judgment in the lawsuit titled
PAUL GIFFORD, MARY LOU MOLINA, RANDY MILAND, KAREN PERRI on behalf
of themselves and all others similarly situated, Plaintiffs v. PETS
GLOBAL INC., a California Corporation, Defendant, Case No.
2:21-cv-02136-CJC-MRW (C.D. Cal.).
The Class Counsel will be awarded $405,960 in Attorneys' Fees and
$60,828 in litigation Expenses, which the Court approves as fair
and reasonable, in accordance with the terms of the Parties'
Settlement. The Plaintiffs will be awarded the following Incentive
Awards in their capacity as Plaintiffs in this Action: Paul Gifford
$5,000, Randy Miland $5,000, and Mary Lou Molina $5,000.
The Attorneys' Fees, litigation Expenses, and Incentive Awards will
be sent to the Plaintiffs' counsel by the Defendant pursuant to the
deadlines with the Settlement Agreement, which is by Jan. 27,
2023.
The Court will retain jurisdiction over the Parties and the Action
for the reasons and purposes set forth in this Judgment, the Final
Order Approving Class Action Settlement, and the Final Order
Approving Attorneys' Fees and Expenses and Incentive Awards, and
the Final Judgment in Dkt. 70. Without in any way affecting the
finality of these Final Orders and/or this Judgment, the Court
expressly retains jurisdiction as to all matters relating to the
administration, consummation, enforcement, and interpretation of
the Settlement and of these Final Orders and Judgment, and for any
other necessary purpose.
A full-text copy of the Court's Judgment dated Dec. 19, 2022, is
available at https://tinyurl.com/y6z9pucv from Leagle.com.
PROGRESSIVE PALOVERDE: Court Narrows Claims in Schroeder Class Suit
-------------------------------------------------------------------
Judge Jane Magnus-Stinson of the U.S. District Court for the
Southern District of Indiana, Indianapolis Division, grants in part
and denies in part the Defendant's motion to dismiss the lawsuit
styled HEATHER SCHROEDER, Plaintiff v. PROGRESSIVE PALOVERDE
INSURANCE COMPANY, Defendant, Case No. 1:22-cv-00946-JMS-MPB (S.D.
Ind.).
Plaintiff Heather Schroeder was in a car accident and submitted a
claim to her auto insurer, Defendant Progressive Paloverde
Insurance Company. Progressive declared Ms. Schroeder's vehicle a
total loss and purported to pay her the Actual Cash Value ("ACV")
of the vehicle, but Ms. Schroeder claims that Progressive
undervalued her vehicle by applying a "Projected Sold Adjustment"
("PSA") to the value of comparable vehicles used in determining her
vehicle's ACV. Ms. Schroeder initiated this putative class action
against Progressive on May 13, 2022, and asserts claims for breach
of contract, breach of the covenant of good faith and fair dealing,
and declaratory judgment.
Progressive issued a uniform automobile insurance policy to Ms.
Schroeder and all putative class members. Under the Policy,
Progressive agrees to pay for sudden, direct, and accidental loss
to insured vehicles.
Progressive uses valuation reports prepared by Mitchell
International, Inc. ("Mitchell") to determine the ACV of total-loss
vehicles. Specifically, Progressive (through Mitchell) systemically
applies a PSA that results in a downward adjustment to the base
values of the comparable vehicles used to calculate the ACV of
their insureds' vehicles. The PSA is applied to the comparable
vehicles on top of adjustments for differences, such as mileage,
options, and equipment. The valuation reports provide a statement
that the PSA is to "reflect consumer purchasing behavior
(negotiating a different price than the listed price)." Progressive
does not apply a PSA to comparable vehicles when determining the
ACV of total-loss vehicles owned by insureds in Ohio, but it does
for insureds in Indiana.
Neither Progressive nor Mitchell has ever conducted a study or
research to determine whether the "consumer purchasing behavior"
exists and impacts ACV in the modern used-car market. Additionally,
until July 2021, Progressive, through its vendors, threw out all
data where the list price equaled or exceeded the sold price. It
also excludes from "projected sold" calculations data where the
list price equaled the sold price and all data where the sold price
exceeds the list price, even though examples abound of dealerships
that charge more than the advertised price to customers purchasing
a vehicle with cash -- i.e. not providing the dealer the
opportunity to profit through financing the sale or acquiring a
trade-in -- which is particularly relevant to the inquiry of
determining a vehicle's ACV.
Progressive does not account for whether the comparable vehicle was
purchased with cash, or whether there were ancillary purchases or
transactions that may influence the sales price but not the ACV --
e.g., whether the customer traded in a vehicle at the time of
purchase, bought an extended warranty or service plan, or financed
the purchase. Progressive also ignores other market realities, such
as that car dealerships do not negotiate off of Internet-advertised
prices, and that differences between the list and sales prices do
not reflect a negotiation of the vehicle's cash value, but rather
that a dealer shifted its profits to other components of the
transaction (e.g., profits made through financing or trade-in,
ancillary products, employee discounts, etc.).
Progressive's pattern and practice of undervaluing comparable
vehicles results in losses to the insureds when valuing their
total-loss vehicle's ACV. The Policy does not permit reducing a
vehicle's ACV for "invented or arbitrarily assumed
justifications."
On Feb. 19, 2019, Ms. Schroeder was involved in an automobile
accident and submitted a property damage claim to Progressive under
the Policy. Progressive declared her 2018 Toyota Corolla to be a
total loss and provided her with a Vehicle Valuation Report from
Mitchell. The Vehicle Valuation Report listed 13 comparable
vehicles that were recently sold or offered for sale at dealerships
in the same geographic area as Ms. Schroeder. Four of the thirteen
vehicles had been sold, and the Vehicle Valuation Report reflected
their sold price, adjusted to make them more comparable to Ms.
Schroeder's vehicle (e.g., the prices of features Ms. Schroeder's
vehicle had but the comparable vehicle did not were added to the
sold price). The other nine comparable vehicles were listed for
sale, but had not yet sold.
Progressive used the 13 comparable vehicles to determine the ACV of
Ms. Schroeder's vehicle, and the Vehicle Valuation Report reflected
that PSAs were applied to the nine vehicles that had not yet been
sold in the amounts of $895, $942, $950, $946, $894, $945, $917,
$947, and $940. Without the PSA deductions, Ms. Schroeder would
have received an ACV payment that was $644.34 higher than the
payment that she received.
Ms. Schroeder initiated this litigation on May 13, 2022, and filed
the operative Amended Complaint on Aug. 1, 2022. She sets forth
claims for breach of contract and breach of the duty of good faith
and fair dealing, and requests a declaratory judgment that
Progressive's application of PSAs results in a valuation of less
than the ACV Progressive is required to pay under the Policy and
that this practice constitutes a breach of the Policy.
Ms. Schroeder brings her claims individually and on behalf of the
following class:
All Indiana citizens insured by Progressive who, from the
earliest allowable time through the date an Order granting
class certification is entered, received compensation for
the total loss of a covered vehicle, where that compensation
was based on a vehicle valuation report prepared by Mitchell
and the ACV was decreased based upon PSAs to the
comparable vehicles used to determine ACV.
Progressive has moved to dismiss all of Ms. Schroeder's claims.
In support of its Motion to Dismiss, Progressive argues that Ms.
Schroeder does not identify any specific Policy provision that
Progressive breached. It asserts that Ms. Schroeder does not set
forth what she contends her vehicle's ACV was at the time of the
loss, the amount necessary to replace her vehicle, the stated
amount on the declarations page of her Policy, or how much
Progressive paid her to settle her claim.
In her response, Ms. Schroeder argues that she sufficiently alleges
that Progressive breached the Policy's provision requiring it to
pay the ACV, reduced by the applicable deductible (or another limit
of liability), and that these allegations provide Progressive with
fair notice of what Policy provisions she contends were breached.
Under Indiana law, the three elements of a breach of contract claim
are: (1) the existence of a contract; (2) the defendant's breach
thereof; and (3) damages suffered as a result. The parties agree
that Ms. Schroeder's vehicle was covered by the Policy, but
Progressive disputes that she has adequately alleged the second and
third elements of a breach of contract claim. The Court finds,
however, that she has.
First, Ms. Schroeder alleges that Progressive breached the Policy's
provision requiring it to pay for sudden, direct and accidental
loss to a covered auto and to pay the limit of liability which, for
her vehicle, was the actual cash value of the damaged property at
the time of the loss reduced by the applicable deductible. The
Court acknowledges that the Policy Ms. Schroeder attaches to her
Amended Complaint appears to permit Progressive to use a
third-party, such as Mitchell, to provide valuation information,
but that does not absolve Progressive of the responsibility to pay
the vehicle's ACV.
Ms. Schroeder has alleged that Mitchell's subtraction of the PSAs
from the prices of comparable vehicles, relied upon by Progressive,
resulted in Progressive not paying the ACV. Judge Magnus-Stinson
says this is enough to allege that Progressive breached a Policy
provision at the motion to dismiss state.
Second, Ms. Schroeder alleges that the application of PSAs to the
comparable vehicles resulted in payment to her that was $644.34
less than it should have been.
While it is not entirely clear from Ms. Schroeder's allegations
exactly how she arrived at the $644.34 figure, Judge Magnus-Stinson
says she need not explain her damages at the motion to dismiss
stage, and alleging that the base values of the comparable vehicles
would have been higher, which would have made the ACV of her
vehicle higher, is enough.
While Ms. Schroeder will certainly be required to provide evidence
that supports her allegations later in this litigation (including
that she suffered damages and, consequently, has standing to sue),
Judge Magnus-Stinson finds she has plausibly alleged that
Progressive breached the terms of the Policy by relying on Vehicle
Valuation Reports, which include PSA deductions for comparable
vehicles. Hence, Progressive's Motion to Dismiss Ms. Schroeder's
breach of contract claim is denied.
Ms. Schroeder has alleged intentional conduct on the part of
Progressive (application of the PSAs despite an absence of data
demonstrating its appropriateness), taken with a dishonest purpose
(to pay insureds less than the ACV of their total-loss vehicles).
Judge Magnus-Stinson finds this is sufficient to state a claim for
breach of the covenant of good faith and fair dealing, and the
Court denies Progressive's Motion to Dismiss that claim.
Judge Magnus-Stinson notes that Ms. Schroeder seeks a declaration
that Progressive's deduction of PSAs from the value of comparable
vehicles results in a valuation of less than the ACV for insured
vehicles, and that this practice constitutes a breach of the
Policy. This is duplicative of her breach of contract claim and the
Court, in its discretion, finds that dismissal of the declaratory
judgment claim is appropriate.
Accordingly, because Ms. Schroeder lacks standing to seek
declaratory relief and since her declaratory judgment claim is
duplicative of her breach of contract claim, the Court grants
Progressive's Motion to Dismiss as to Ms. Schroeder's declaratory
judgment claim.
The Court acknowledges Ms. Schroeder's clarification that she does
not intend to bring a claim under Section 27-4-1-4.5. In light of
that clarification, Progressive's Motion to Dismiss any potential
claim under Section 27-4-1-4.5 is denied as moot.
For these reasons, Progressive's Motion to Dismiss is denied in
part as to Ms. Schroeder's breach of contract and breach of the
duty of good faith and fair dealing claims, granted in part as to
Ms. Schroeder's declaratory judgment claim, and denied in part as
moot as to any potential claim under Indiana Code Section
27-4-1-4.5. The breach of contract and breach of the covenant of
good faith and fair dealing claims will proceed and no partial
final judgment will issue.
A full-text copy of the Court's Order dated Dec. 19, 2022, is
available at https://tinyurl.com/5ft6xz36 from Leagle.com.
REALPAGE INC: Faces Watters Suit Over Housing Lease Monopoly
------------------------------------------------------------
BRANDON WATTERS, individually and on behalf of all others similarly
situated, Plaintiff v. REALPAGE, INC.; BH MANAGEMENT SERVICES, LLC;
CORTLAND PARTNERS, LLC; CUSHMAN & WAKEFIELD, INC.; GREYSTAR REAL
ESTATE PARTNERS, LLC; HIGHMARK RESIDENTIAL, LLC; LINCOLN PROPERTY
CO.; and MID-AMERICA APARTMENT COMMUNITIES, INC., Defendants, Case
No. 3:22-cv-01082 (M.D. Tenn., Dec. 30, 2022) is an action arising
from the Defendants' conspiracy to fix, raise, maintain, and
stabilize rental housing prices in the Greater Nashville Metro
Area, in violation of the Sherman Act.
According to the complaint, RealPage's software platform called "AI
Revenue Management" (previously known as "YieldStar"), and several
managers of large-scale residential apartment buildings that used
RealPage's software platform to coordinate and agree upon rental
housing pricing, among other things, in the Greater Nashville Metro
Area.
The Defendants' price-fixing conspiracy resulted in artificially
inflated rent prices and a diminished supply of rental units in the
Greater Nashville Metro Area. Plaintiff and the Class, who rent in
the Greater Nashville Metro Area from property managers that use
RealPage's software, paid significant overcharges on rent and
suffered harm from the reduced availability of rental units they
could reasonably afford, says the suit.
REALPAGE, INC. provides products and services to the multifamily
real estate industries. The Company offers applicant screening,
accounting, budgeting, property management, and compliance
reporting solutions. RealPage also develops and delivers
proprietary web-based applications that enhance client information
management capabilities. [BN]
The Plaintiff is represented by:
Tricia R. Herzfeld, Esq.
Tricia R. Herzfeld, Esq.
Anthony A. Orlandi, Esq.
BRANSTETTER, STRANCH & JENNINGS, PLLC
223 Rosa L. Parks Avenue, Suite 200
Nashville, TN, 37203
Telephone: (615) 254-8801
Facsimile: (615) 255-5419
Email: triciah@bsjfirm.com
aorlandi@bsjfirm.com
- and -
John F. Garvey, Jr., Esq.
BRANSTETTER, STRANCH & JENNINGS, PLLC
701 Market Street, Ste. 1510
St. Louis, MO 63101
Telephone: (314) 390-6750
Facsimile: (615) 255-5419
Email: jackg@bsjfirm.com
- and -
David R. Scott, Esq.
Patrick McGahan, Esq.
Michael Srodoski, Esq.
G. Dustin Foster, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
156 South Main Street
P.O. Box 192
Colchester, CT 06145
Telephone: (860) 537-5537
Facsimile: (860) 537-4432
Email: david.scott@scott-scott.com
pmcgahan@scott-scott.com
msrodoski@scott-scott.com
gfoster@scott-scott.com
- and -
Thomas J. Undlin, Esq.
Stacey Slaughter, Esq.
Geoffrey H. Kozen, Esq.
J. Austin Hurt, Esq.
ROBINS KAPLAN LLP
800 LaSalle Avenue, Suite 2800
Minneapolis, MN 55402
Telephone: (612) 349-8500
Facsimile: (612) 339-4181
Email: tundlin@robinskaplan.com
sslaughter@robinskaplan.com
gkozen@robinskaplan.com
ahurt@robinskaplan.com
- and -
Christian P. Levis, Esq.
Vincent Briganti, Esq.
Peter Demato, Esq.
Radhika Gupta, Esq.
LOWEY DANNENBERG, P.C.
44 South Broadway, Suite 1100
White Plains, NY 10601
Telephone: (914) 997-0500
Facsimile: (914) 997-0035
Email: vbriganti@lowey.com
clevis@lowey.com
pdemato@lowey.com
rgupta@lowey.com
RIVERO MAINTENANCE: Fails to Pay Cleaners' OT, Cobos Suit Claims
----------------------------------------------------------------
The case, SONIA COBOS, individually and on behalf of all others
similarly situated, Plaintiff v. RIVERO MAINTENANCE LIMITED
LIABILTY COMPANY and LUIS RIVERO, as an individual, Defendants,
Case No. 1:22-cv-07543-LDH-RML (E.D.N.Y., December 13, 2022) arises
from the Defendants' alleged egregious violations of the New York
Labor Law.
The Plaintiff was employed by the Defendants from in or around
March 2022 until in or around October 2022 as an office and
bathroom cleaner at the Job Site while performing related
miscellaneous duties for the Defendants.
According to the complaint, the Plaintiff was regularly required by
the Defendants to work approximately 45 hours per week two weeks
per month and approximately 60 hours per week two weeks per month
from in or around March 2022 until in or around March 2022 until in
or around October 2022. However, the Defendants denied her of her
lawfully earned overtime compensation at the rate of one and
one-half times her regular rates of pay for all hours worked in
excess of 40 per workweek. Instead, she was only paid a flat hourly
rate of approximately $18.50 per hour for her first 40 hours of
work, from in or around March 2022 until in or around October 2022,
says the suit.
In addition, the Defendants failed to keep payroll records and
failed to post notices of the minimum wage and overtime wage
requirements in a conspicuous place at the location of their
employment as required by both the FLSA and NYLL. Moreover, the
Defendants willfully failed to provide the Plaintiff with any wage
statements, and with a written notice of her applicable regular
rate of pay, regular pay day, and all such information as required
by NYLL, the suit added.
The Plaintiff brings this complaint as a collective action to
recover unpaid overtime wages, for herself and all other similarly
situated cleaners, as well as liquidated damages, pre- and
post-judgment interest, litigation costs together with reasonable
attorneys' fees, and other relief as the Court deems necessary and
proper.
Rivero Maintenance Limited Liability Company provides cleaning
services. Luis Rivero is the owner of the Corporate Defendant.
[BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Tel: (718) 263-9591
SCHENKER INC: Mismanages 401(k) Savings Plan, Partida Suit Claims
-----------------------------------------------------------------
DIEGO PARTIDA, individually and as a representative of a Putative
Class of Participants and Beneficiaries, on behalf of the Schenker,
Inc. 401(k) Savings and Investment Plan, Plaintiffs v. SCHENKER,
INC.; ADMINISTRATIVE COMMITTEE OF SCHENKER, INC. 401(K) SAVINGS AND
INVESTMENT PLAN, both individually and as the de facto
administrative committee members; JOCHEN THEWES (CEO); OLIVER SEIDL
(CFO), and DOES 1-50 as members of the Administrative Committee,
Defendants, Case No. 3:22-cv-09192 (N.D. Cal., December 30, 2022)
is a class action against the Defendants for violations of the
Employee Retirement Income Security Act of 1974 (ERISA) including
breach of co-fiduciary, duty of prudence, breach of duty of
loyalty, failure to monitor other plan fiduciaries, and breach of
fiduciary duty by omission.
The case arises from the Defendants' mismanagement of the Schenker,
Inc. 401(k) Savings and Investment Plan. The Defendants allegedly
failed to: (1) prudently select and monitor retirement funds, (2)
monitor funds' portfolio managers, and (3) monitor service
providers. As a result of the Defendants' actions, the Plaintiff
and similarly situated Plan participants paid additional
unnecessary operating expenses offering no value to them and
resulting in a repeated daily loss of compounded returns. The
Plaintiff and Class members seek to make the Defendants liable to
the Plan's losses and to restore to the Plan any lost profits. In
addition, the Plaintiffs seek to reform the Plan to comply with
ERISA and to prevent further breaches of fiduciary duties and grant
other equitable and remedial relief, says the suit.
Schenker, Inc. is a transportation and logistics services provider,
with its principal place of business in Chesapeake, Virginia. [BN]
The Plaintiffs are represented by:
James A. Clark, Esq.
Renee P. Ortega, Esq.
TOWER LEGAL GROUP, P.C.
11335 Gold Express Drive, Ste. 105
Gold River, CA 95670
Telephone: (916) 361-6009
Facsimile: (916) 361-6019
Email: james.clark@towerlegalgroup.com
renee.parras@towerlegalgroup.com
- and -
Paul Sharman, Esq.
THE SHARMAN LAW FIRM
11175 Cicero Drive, Suite 100
Alpharetta, GA 30022
Telephone: (678) 242-5297
Facsimile: (678) 802-2129
E-mail: paul@sharman-law.com
SCRANTON, PA: Tentative Settlement in Garbage Fees' Suit Discussed
------------------------------------------------------------------
Terrie Morgan-Besecker, writing for The Times-Tribune, reports that
a tentative settlement has been reached in a class-action lawsuit
that challenged Scranton's garbage fee, but details won't become
public until a judge approves the agreement.
The settlement resolves a lawsuit Scranton landlord Adam Guiffrida
filed in 2016 that alleged the city's $300 annual garbage fee was
arbitrarily set and improperly generates more money than is
required to provide garbage collection services.
The city has vehemently fought the suit, arguing the fee is
appropriate. It contends the fee does not cover all costs,
including salaries, benefits, landfill tipping fees and other
expenses.
The suit, which sought refunds dating back to 2014, was certified
as a class action suit in 2018. That allowed other property owners
to join the case. About 6,000 signed on.
The case was scheduled to go to trial Jan. 23 before Lackawanna
County Judge James Gibbons. A tentative agreement was reached
following a Dec. 12 mediation conference.
City solicitor Jessica Eskra and Paul Batyko, one of Guiffrida's
attorneys, said they could not release details of the agreement
because it has not been finalized.
Once it is finalized, the proposal will go before Gibbons, who will
hold a public hearing before deciding whether or not to approve the
deal. No date for the hearing had been set as of Dec. 30.
Attempts to reach Guiffrida for comment on Dec. 30 were
unsuccessful.
The lawsuit is one of several Guiffrida filed against the city. In
2015, he filed a class-action lawsuit in Lackawanna County Court
challenging the city's rental registration program as arbitrary and
excessive. The case settled in March 2019, with the city agreeing
to pay about $71,100 to 544 property owners.
In 2020, he filed a federal lawsuit, alleging the code office
improperly denied him permits to work on his rental properties
because he did not politically support former Mayor Bill
Courtright. That case remains pending. [GN]
SPECTRUM BRANDS: Faces Class Action Over Contaminated Dog Treats
----------------------------------------------------------------
Lisa Fickenscher, writing for New York Post, reports that a dog
food maker with a history of recalling contaminated products is
being accused of sickening hundreds of pets -- and the recent death
of a beloved Pekingese, The Post has learned.
DreamBone's line of chews, which are made by $3 billion
conglomerate Spectrum Brands Holdings, has come under fire from pet
owners on message boards and from food and safety watchdogs.
One grieving owner, Liz Brannen, blames DreamBone Twists for
causing her Pekingese, Boogie, to suffer an agonizing death on Dec.
11.
Boogie started vomiting and having bloody diarrhea shortly after
eating the treat. Within 24 hours she was gone, the tearful owner
told The Post.
"She was screaming at the end and in such pain, but she was
perfectly normal the day before," Brannen said. "It really bothers
me that a company would sell something that can kill dogs."
The Bellville, Texas, resident quickly learned that she's not the
only heartbroken pet owner with a beef against DreamBone chews,
which are sold by major retailers including Walmart, Target and
Chewy.
Complaints about DreamBone span nearly a decade, but they began to
spike over the past several months on Safelyhq.com, a web site that
tracks consumer health and safety issues.
This year alone, there have been 70 DreamBone complaints on the
site, nearly twice as many as in 2021, with most pouring in since
October.
"The recent surge in reports mentioning DreamBone dog treats is
especially concerning to us," Safetyhq's founder Patrick Quade told
The Post. "It is a huge outlier in our data, in terms of the number
of reports and the severity of harm caused."
The Food and Drug Administration is also fielding reports from
concerned pet owners, the agency told The Post.
"The FDA has received several dozen complaints associated with
DreamBone," a spokesperson said in a statement. "We are continuing
to look into these complaints, but we can't respond to each
individual case."
Last year, the agency sent a warning letter to Midwestern Pet Foods
after the company's product was linked to 130 dog deaths and
hundreds of sick dogs. And in 2020, the agency recalled pet food
from another brand made by Midwestern Pet Foods, called Sportmix,
after at least 28 dogs died from products with high levels of toxic
mold. Spectrum Brands is not affiliated with Midwestern Pet Foods.
DreamBone is mentioned in hundreds of posts on web sites, including
Amazon, blogs and social media platforms like Reddit from
distraught customers whose dogs allegedly became sick or died after
being given the treat.
The Middletown, Wis.-based company owns such disparate brands as
Cutter bug repellent, Remington grooming products and Black +
Decker appliances, but the majority of its product recalls are
within its pet care division.
Publicly held Spectrum Brands did not respond to numerous emails
and calls to senior executives.
Spectrum Brands recalled rawhide dog chew products in 2017 after it
discovered that a supplier in Brazil had been using an "ammonium
compound" chemical that is "approved for cleaning food processing
equipment" in its rawhide products, according to the company's
website.
Spectrum acknowledged that dogs may experience "gastric irritation,
including diarrhea and vomiting" after eating the raw hides –
including such brands as Digest-eeze and Healthy Hide – and may
need treatment by a veterinarian "depending on the severity."
The company acquired the troubled DreamBone brand in 2017 from New
Jersey-based Petmatrix. The chews are manufactured abroad in
Vietnam, Mexico and China and are marketed as "rawhide free" and
"highly digestible."
A year before the acquisition, Petmatrix was slapped with a
proposed class-action lawsuit from a dog owner whose pooch needed
surgery after he ate a DreamBone. The complaint alleged that its
ingredients were "indigestible" and included a "large amount" of
Soribtol, which is "widely characterized and classified, including
by the FDA, as an indigestible sugar alcohol, and is used as a
laxative."
After the plaintiff's dog, Maxie, had been given a DreamBone he
began vomiting and had "bloody discharge from his rectum,"
according to the complaint. Maxie underwent surgery to remove "a
large piece of a dog chew, which matched the description of the
DreamBone," the complaint states.
The veterinarian said "Maxie would have died," if not for the
surgery, according to the lawsuit, which was eventually settled,
court filings show.
Other pet owners have also considered initiating legal proceedings,
including Stacy Carlyle of Atlanta, whose Bijon-Shih Tzu mix,
Bella, died in September 2020.
"The vet found pieces of DreamBone in her digestive tract," Carlyle
told The Post. "It wouldn't dissolve."
Spectrum offered to settle, "giving me and [another dog owner who
was part of the proposed litigation] about $5,000 a piece" Carlyle
said. But she rebuffed the offer and instead took her story to a
local news station to warn other pet owners.
Spectrum Brands issued a statement at the time to the news station:
"The health and safety of all dogs who enjoy our DreamBone products
is our highest priority. We believe there is no merit to these
allegations and we stand behind the quality and safety of our
DreamBone products."
Logan Rothstein, who believes his 8-year-old Chihuahua, Hercules,
died in 2019 because of DreamBone, has waged a three-year campaign
-- reaching out the to FDA, retailers and the media -- to raise
awareness about the number of complaints against DreamBone.
"I don't think Spectrum makes a consistently bad product,"
Rothstein said. But he believes because the product is made
overseas that it likely has "very little quality control." [GN]
STARBUCKS CORP: Schleyer Sues Over Mislabeled Bagel Products
------------------------------------------------------------
ERIC SCHLEYER; and EMILYN MISHKAN, individually and on behalf of
and all others similarly situated, Plaintiffs v. STARBUCKS
CORPORATION, Defendant, Case No. 1:22-cv-10932 (S.D.N.Y., Dec. 28,
2022) seeks to challenge the Defendant's false and deceptive
practices in the marketing and sale of its Sprouted Grain bagel
(the "Product").
According to the complaint, the Defendant has marketed the Product
as being a "Sprouted Grain" bagel, a representation which misleads
consumers into believing that sprouted grains are used as the sole,
or at least primary, source of grain in the Product. Unbeknownst to
consumers however, the Product is made primarily with traditional,
non-sprouted grains. Had the Plaintiffs and other consumers been
aware that the Product is made primarily with traditional,
non-sprouted grains, they would not have purchased the Product or
would have paid significantly less for it, says the suit.
STARBUCKS CORPORATION is the premier roaster, marketer, and
retailer of specialty coffee. The Company offers packaged and
single-serve coffees and teas, beverage-related ingredients, and
ready-to-drink beverages, as well as produces and sells bottled
coffee drinks and a line of ice creams. Starbucks serves customers
worldwide. [BN]
The Plaintiffs are represented by:
Robert Abiri, Esq.
CUSTODIO & DUBEY, LLP
445 S. Figueroa Street, Suite 2520
Los Angeles, CA 90071
Telephone: (213) 593-9095
Facsimile: (213) 785-2899
Email: abiri@cd-lawyers.com
- and -
Benjamin Heikali, Esq.
TREEHOUSE LAW, LLP
10250 Constellation Blvd., Suite 100
Los Angeles, CA 90067
Telephone: (310) 751-5948
Email: bheikali@treehouselaw.com
U.S. BANK: Tennessee Appeal Court Affirms Dismissal of Eudaley Suit
-------------------------------------------------------------------
In the lawsuit titled JAMES KEITH EUDALEY v. U.S. BANK NATIONAL
ASSOCIATION, Case No. M2021-00344-COA-R3-CV (Tenn. App.), the Court
of Appeals of Tennessee, at Nashville, affirms the dismissal of the
underlying class action.
Judge W. NEAL McBRAYER, J., delivered the opinion of the Court, in
which FRANK G. CLEMENT, JR., P.J., M.S., and ANDY D. BENNETT, J.,
joined.
A loan was secured by a deed of trust on the borrower's real
property. When the borrower repaid the loan in full, the bank paid
a fee to record a deed of release. The bank then sought
reimbursement of the fee from the borrower. The borrower filed a
putative class action suit, alleging that Tennessee law prohibited
the bank from seeking reimbursement of the recording fee. The trial
court dismissed the complaint, concluding that federal regulations
preempted the borrower's claims.
When James Keith Eudaley borrowed money from U.S. Bank National
Association, he signed a deed of trust to his real property as
security for the loan. After Mr. Eudaley paid off the loan, U.S.
Bank recorded a deed of release with the Dickson County Register of
Deeds, paying a $12 recording fee. The bank then sought
reimbursement of the fee from him.
In response, Mr. Eudaley filed a putative class action complaint
against U.S. Bank. He alleged that a state statute prohibits U.S.
Bank from passing along the cost of recording a release to
borrowers. Specifically, Mr. Eudaley claimed that the bank's
conduct constituted negligence per se and unjust enrichment.
U.S. Bank moved to dismiss the complaint. It argued that the state
statute did not prohibit reimbursement of recordation fees; Mr.
Eudaley's claims were preempted by the National Bank Act and its
implementing regulations; Mr. Eudaley failed to give pre-suit
notice as required by the parties' contract; and Mr. Eudaley failed
to state a claim for either negligence per se or unjust
enrichment.
The trial court granted U.S. Bank's motion to dismiss. It concluded
that the state statute cited by Mr. Eudaley prohibited lienholders
like U.S. Bank from seeking reimbursement for recordation fees. But
it also found that the National Bank Act's implementing regulations
preempted Mr. Eudaley's claims. Specifically, the regulations
permitted national banks to charge "customers non-interest charges
and fees."
In considering Mr. Eudaley's appeal, the Appellate Court must
answer two separate questions: Does Tennessee Code Annotated
Section 66-25-1061 prohibit a debt holder from seeking
reimbursement for costs associated with the recording of a release?
And, if so, does federal law preempt that prohibition when the debt
holder seeking reimbursement is a national bank?
Judge McBrayer notes that Tennessee Code Annotated Section
66-25-106 provides that all costs for registering a formal release
will be paid by the holder of the debt secured by the deed of
trust. The parties here disagree about the meaning of the phrase,
"shall be paid by the holder of the debt." Mr. Eudaley argues that
the statute requires holders of debt to pay all costs associated
with recording a deed of release. So they cannot pass those costs
on to others. U.S. Bank concedes that the statute requires holders
of debt to pay the costs of recording. But it argues that the
statute does not bar the bank from seeking reimbursement of those
costs from the borrower.
Contrary to the parties' arguments, Judge McBrayer opines that the
plain and ordinary meaning of the word "paid" does not resolve the
question of whether the statute prohibits holders of debt from
seeking reimbursement. The Appellate Court considers the broader
statutory scheme. Chapter 25 of Title 66 of the Tennessee Code
addresses the release of liens created by written instruments filed
of record. It requires "a formal deed of release" when a debt "has
been fully paid or satisfied." And it provides for fees and
penalties against the holder of the debt for failure to enter a
proper release of record after written demand from the party making
payment.
Given this context, the Appellate Court concludes that Tennessee
Code Annotated Section 66-25-106 prohibits holders of debt from
seeking reimbursement of costs associated with recording a release
of a deed of trust. The debt holder's obligation to record a
release only arises if the debt has been paid in full or satisfied,
indicating that nothing further is owed to the debt holder.
Having determined that Tennessee Code Annotated Section 66-25-106
prohibits a debt holder from seeking reimbursement for costs
associated with the recording of a release, the Appellate Court
considers the impact of federal law. U.S. Bank, which is a
nationally chartered bank, argues that the prohibition is preempted
by the National Bank Act and regulations promulgated by the Office
of the Comptroller of the Currency ("OCC").
U.S. Bank was created under the National Bank Act, which vests the
bank with authority to exercise "all such incidental powers as
shall be necessary to carry on the business of banking," Judge
McBrayer notes. The National Bank Act does not expressly preempt
state law. Instead, Judge McBrayer explains, federally chartered
banks are subject to state laws of general application in their
daily business to the extent such laws do not conflict with the
letter or the general purposes of the National Bank Act.
Because U.S. Bank can only make loans secured by real property in
Tennessee if it pays fees to record a deed of release upon
repayment of each of such loans, the Appellate Court finds those
fees are a cost incurred by the bank in providing its lending
service. OCC regulations authorize national banks to charge fees
based on such costs. So U.S. Bank was authorized under federal law
to charge Mr. Eudaley for the cost of recording the deed of
release, Judge McBrayer points out.
The Appellate Court concludes that Mr. Eudaley's claims are
preempted by federal law. Tennessee law prohibits a debt holder
from seeking reimbursement of the fee for recording a deed of
release. But OCC regulations authorize U.S. Bank to charge fees
based on the cost of recording a deed of release.
Judge McBrayer finds that Tennessee Code Annotated Section
66-25-106 prohibits a debt holder from seeking reimbursement for
costs associated with the recording of a deed of release. But that
prohibition is preempted by federal law when the debt holder
seeking reimbursement is a national bank. So, the Appellate Court
affirms the dismissal of Mr. Eudaley's claims.
A full-text copy of the Court's Opinion dated Dec. 19, 2022, is
available at https://tinyurl.com/4dk2xtk6 from Leagle.com.
Pat Montgomery Barrett, III, in Nashville, Tennessee, and Tiffany
N. Ray -- Tiffany@taylormartino.com -- in Mobile, Alabama, for the
Appellant, James Keith Eudaley.
C.E. Hunter Brush -- hunter.brush@butlersnow.com -- in Nashville,
Tennessee, and Thomas J. Cunningham -- tcunningham@lockelord.com --
in West Palm Beach, Florida, for the Appellee, U.S. Bank National
Association.
UNICO INTERNATIONAL: Moster Files Suit Over Unpaid Overtime Wages
-----------------------------------------------------------------
CHAVIE MOSTER, and all others similarly situated pursuant to 29
U.S.C. Section 216(b), Plaintiff v. UNICO INTERNATIONAL TRADING
CORP., a Florida corporation, and AVI TANSMAN, an individual,
Defendants, Case No. 9:22-cv-81917-XXXX (S.D. Fla., December 13,
2022) is collective action complaint brought against the Defendants
for their alleged intentional and willful violations of the Fair
Labor Standards Act.
The Plaintiff has worked for the Defendants from January 28, 2022,
through and including August 31, 2022.
According to the complaint, despite working approximately 50-55
hours per week, the Plaintiff was only paid by the Defendants for
86.6 hours of work every two weeks at $28.85 per hour. The
Defendants did not pay him overtime premium at the rate of one and
one-half times his regular rates of pay for all hours worked in
excess of 40 per workweek, says the suit.
The Plaintiff brings this complaint seeking to recover damages, for
himself and all other similarly situated employees, for the amount
of unpaid overtime wages, and damages for any improper deductions
or credits taken against wages under the FLSA as applicable. The
Plaintiff also seeks liquidated damages in an amount equal to 100%
of their damages for the amount of unpaid minimum and overtime
wages, as well as pre- and post-judgment interest as applicable,
the expenses incurred in this action, including costs and
attorneys' fees, and other relief as the Court deems just and
proper.
Unico International Trading Corp. is in the business of
manufacturing, distributing, and selling wipes. Avi Tansman is the
owner, officer and/or agent of the Corporate Defendant. [BN]
The Plaintiff is represented by:
Nolan Klein, Esq.
LAW OFFICES OF NOLAN KLEIN, P.A.
5550 Glades Rd., Ste. 500
Boca Raton, FL 33431
Tel: (954) 745-0588
E-mail: klein@nklegal.com
amy@nklegal.com
melanie@nklegal.com
UNILEVER UNITED: N.D. Illinois Grants Bid to Dismiss Castillo Suit
------------------------------------------------------------------
In the case, EMILY CASTILLO, SHANNON KEENER, ROBYN LIPETZ,
ALEXANDRA ARROYO, GUSTAVO FLORES, NANCY JONES, ZAMARA COLON, KRISTI
KELLER, HOLLIE PARRISH, and CORIN FIONDELLA, on behalf of
themselves and all others similarly situated, Plaintiffs v.
UNILEVER UNITED STATES, INC., and CONOPCO, INC., Defendants, Case
No. 20 C 6786 (N.D. Ill.), Judge Gary Feinerman of the U.S.
District Court for the Northern District of Illinois, Eastern
Division, grants Unilever's motion to dismiss the consolidated
amended complaint and dismisses the Plaintiffs' claims with
prejudice.
Castillo and others bring the putative class action against
Unilever and Conopco (together, "Unilever"), alleging that certain
of their TRESemme brand hair products contained an unsafe
ingredient with undisclosed risks. Unilever designs, formulates,
produces, manufactures, sells, and distributes TRESemme brand hair
products.
Certain TRESemme shampoos and conditioners contain DMDM hydantoin,
a formaldehyde-releasing preservative, as an ingredient. People
allergic to DMDM hydantoin can experience adverse reactions --
including itchiness, rashes, dermatitis, hair brittleness, and hair
loss -- when exposed to it, and formaldehyde is a carcinogen.
According to the Plaintiffs, because the products cause repeated
exposure to formaldehyde, they are dangerous, unfit for sale,
toxic, and defective.
The Plaintiffs are consumers who purchased and used the TRESemme
products in California, Florida, Illinois, Michigan, New Jersey,
New York, Ohio, Pennsylvania, and Texas. Had they known that the
products would expose them to formaldehyde, they would not have
purchased the products or would have paid less for them.
Earlier in the litigation, Unilever moved under Civil Rules
12(b)(1) and 12(b)(6) to dismiss the consolidated amended
complaint, and the Court denied the Rule 12(b)(1) motion, granted
the Rule 12(b)(6) motion, and allowed the Plaintiffs to replead.
The Plaintiffs filed a second consolidated amended complaint, and
Unilever again moves to dismiss.
The operative complaint asserts state law claims for statutory and
common law fraud, breach of express and implied warranty, and
unjust enrichment. Although the complaint also asserts a claim
under the Illinois Uniform Deceptive Trade Practices Act, the
Plaintiffs have withdrawn that claim.
Judge Feinerman finds that the labels do not even obliquely suggest
that the product does not contain DMDM hydantoin or will not expose
users to formaldehyde. Nor can the Plaintiffs proceed on an
omission-based ICFA claim. Unilever did not fail to disclose the
presence of DMDM hydantoin in its TRESemme products, as the
ingredient is listed on the back label. Hence, the Plaintiffs' ICFA
claim accordingly is dismissed.
Because the TRESemme products are not deceptively labeled, Judge
Feinerman finds that the Plaintiffs' common law fraud claim fails
as well, as an element of that claim is "a false statement of
material fact." Given the failure of the Plaintiffs' fraud claims,
their unjust enrichment claim -- which, as they admit, is tied to
the fate of the claim under the Consumer Fraud Acts, necessarily
fails as well.
The same result obtains for the Plaintiffs' warranty claims, Judge
Feinerman opines. Although resolution of some warranty issues may
require applying a particular State's law, the parties do not
suggest that compliance with an express or implied warranty is
among them. His analysis of that element of the warranty claims is
therefore uniform regardless of which State's law governs.
In view of the foregoing, Judge Feinerman grants the Unilever's
motion to dismiss and dismisses the Plaintiffs' claims with
prejudice. Although the Plaintiffs request leave to amend, he says
the Court has already given them an opportunity to replead, and
they do not suggest how the defects in their claims might be
cured.
A full-text copy of the Court's Dec. 28, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/44d8murc from
Leagle.com.
UNITED STATES: Court Dismisses Somerville-White v. Vilsack & USDA
-----------------------------------------------------------------
Judge Amy Berman Jackson of the U.S. District Court for the
District of Columbia dismisses the lawsuit entitled DANIELLE M.
SOMERVILLE-WHITE, et al., Plaintiff v. TOM VILSACK, et al.,
Defendants, Case No. 1:22-cv-03672 (UNA) (D.D.C.).
The matter is before the Court on its initial review of the
Plaintiff's pro se complaint, and application for leave to proceed
in forma pauperis. The Court grants the in forma pauperis
application and dismisses the case for reasons explained here.
The Plaintiff, a resident of Jonesville, Virginia, attempts to
bring this suit as a class action, and sues the United States
Secretary of Agriculture ("USDA"), the United States Patent Office,
and Boehringer Ingelheim Animal Health USA, Inc., and its CEO.
Judge Jackson says the complaint begins somewhat coherently, as the
Plaintiff appears to be challenging USDA's implementation of an
initiative she refers to as the "ORV bait program," which she
asserts is a federal plan to immunize wild raccoons to prevent the
spread of rabies. The Plaintiff alleges that the Defendants have
illegally manufactured and then distributed these baits, on both
public and private property (without permission), and that these
actions have caused disastrous effects.
However, the Plaintiff believes that the ORV bait program, and its
alleged consequences, were intentionally created by a long-term
nefarious conspiracy by the Defendants and others "with CIA
controlled Google and other corporations who have technology to
create a slave labor force of robots and clones to replace
humans[,]" and to use "metal RIFD chips to track and monitor
individuals without their permission."
The Plaintiff contends that Boehringer Ingelheim Animal Health
"made up rabies" as a ruse, and that these genetically altered
rabies vaccines are capable of creating a zombie epidemic. She
equates this conspiracy to a centuries-long biowarfare against
humans, orchestrated by many high-ranking government officials,
Bankers and Pharmaceutical CEOs, scientists, and others.
The Plaintiff alleges that people have been similarly poisoned by
the COVID-19 vaccine, because pharmaceutical CEOs and elites are
suspected of colluding to cause illness among the masses, then
coming in to profit off the cure to make themselves look like the
savior, and that these "Elite bankers and government officials have
the motive to suppress the American people via man-made diseases in
the heart of Patriot country." She seeks injunctive relief, a
criminal investigation and prosecution of the Defendants, and $1
billion in damages.
First, Judge Jackson opines that the Plaintiff cannot bring this
suit as a class action because a pro se litigant can represent only
herself in federal court.
Second, she cannot exercise subject matter jurisdiction over a
frivolous complaint. She points out that the instant complaint
falls squarely into this category.
Consequently, Judge Jackson rules this case will be dismissed
without prejudice.
A full-text copy of the Court's Memorandum Opinion dated Dec. 19,
2022, is available at https://tinyurl.com/4tyhna6a from
Leagle.com.
UNIVERSAL CHAIN: Haser Files Suit in Cal. Super. Ct.
----------------------------------------------------
A class action lawsuit has been filed against Universal Chain of
California, Inc., et al. The case is styled as Michael A. Haser, on
behalf of all others similarly situated v. Universal Chain of
California, Inc., Does 1-10, Case No. 34-2022-00332268-CU-OE-GDS
(Cal. Super. Ct., Sacramento Cty., Dec. 30, 2022).
The case type is stated "Other Employment – Civil Unlimited."
Universal Chain -- https://uchaininc.com/ -- is an industry leader
in third-party logistics, innovator in supply chain solutions and
authority on operational services.[BN]
The Plaintiff is represented by:
John G. Yslas, Esq.
WILSHIRE LAW FIRM
3055 Wishire Blvd., 12th Floor
Los Angeles, CA 90010
Phone: 213-255-3937
Email: jyslas@wilshirelawfirm.com
UNUM LIFE INSURANCE: Heritagemark Sues Over Breach Of Contract
--------------------------------------------------------------
Heritagemark, LLC, an Oklahoma Limited Liability Company, on behalf
of itself and all others similarly situated v. UNUM LIFE INSURANCE
COMPANY OF AMERICA, a Maine Corporation, Case No. 4:22-cv-04513
(S.D. Tex., Dec. 29, 2022), is brought on behalf of similarly
situated Certificate Owners of group universal life ("GUL")
insurance policies and/or individual policyholders of individual
universal life ("IUL") insurance policies issued by UNUM and
administered by UNUM or its agent(s), for breach of contract and
conversion to recover amounts that UNUM charged Plaintiff and the
proposed class in excess of the amounts authorized by the express
terms of their UNUM UL Policies.
The UNUM GUL and UNUM IUL insurance policies will be referred to
collectively herein as "UNUM UL Policy" or "UNUM UL Policies." The
Plaintiff Heritagemark holds title to the exemplar UNUM UL Policy
attached to this complaint (hereinafter sometimes referred to as
the "Exemplar UNUM UL Policy"), on behalf of Mr. Moritz Roever, who
is the Entitlement Holder as defined in the Exemplar UNUM UL
Policy.
The Plaintiff's breach of contract claim is exclusively supported
by the written provisions of the UNUM UL Policy that plaintiff
owns; the provisions of which are materially the same as those
policies held by other members of the proposed class. The written
provisions giving rise to the claims alleged in this lawsuit are
not subject to individual negotiation. The plain language of the
UNUM UL Policies specify that monthly COI rates "will be based on"
and "determined by," UNUM's expectations of future mortality
experience.
UNUM has breached, and is continuing to breach, the express terms
of the UNUM UL Policies, including the implied covenant of good
faith and fair dealing, by failing to take into account, in whole
or in part, UNUM's expectations of future mortality experience,
and/or not even forming or considering its expectations of future
mortality experience when determining and then increasing the COI
rates for owners of UNUM UL Policies.
When determining or adjusting COI rates, the UNUM UL Policy
language requires UNUM to decrease COI rates if it experiences an
improvement in expected mortality. In other words, if UNUM expects
fewer people to die at a given rate than originally anticipated,
then it will expect to pay out fewer death benefits at that
previously determined rate. If Defendant pays out fewer death
benefits over time, then Defendant's risk of insurance decrease
because the cost of providing life insurance to the owners of UNUM
UL Policies goes down. Under the express terms of the exemplar UNUM
UL Policy, the COI rate should correspondingly decrease instead of
UNUM double-dipping by again profiting from raising and/or not
decreasing the COI.
It is well-documented that people are living longer now than they
did 40 years ago (with some COVID-related exceptions). In other
words, mortality rates have improved significantly over the past
several decades and UNUM's future mortality experience has,
likewise, improved to its favor; i.e., people are generally living
longer and fewer death claims are being paid out as early as UNUM
had originally expected. Despite the improvement in expected
mortality, UNUM increased the monthly COI charges that owners of
UNUM UL Policies were required to pay to keep the insurance in
place at least once in the past five years. UNUM should have acted
as expressly promised and lowered the COI rather than increasing
it. Instead, UNUM was profiting from the positive change in
expectations of future mortality experience—i.e., UNUM's insureds
are living longer—during that time.
UNUM also improperly profited by taking the policy holders' cash
value in breach of the express terms of the UNUM UL Policies.
Simply put, "determine" COI rates "based on" UNUM's future
mortality experience whenever it increased COI rates (or failed to
adjust COI rates downward), even though UNUM's future mortality
experience improved during the relevant period. No provision of the
UNUM UL Policies excuses Defendant from the contractual mandate
that it base its COI rates on future mortality experience. In light
of the specific language of the UNUM UL Policies, defendant owed a
duty to its policyholders to monitor its expected mortality rates.
The Plaintiff was unaware that UNUM was engaging in wrongdoing
because only UNUM possesses its internal expectations as to future
mortality experience on which COI rates are supposed to be based;
UNUM does not disclose this information to policyholders; UNUM's
annual statements to policyholders concealed its internal, annually
updated mortality expectations; and a reasonable policyholder would
not have known of UNUM's breaches without disclosure by UNUM of its
mortality expectations each year.
The Defendant has caused material harm to Plaintiff and the
proposed class by improperly draining monies they have accumulated
in the cash values under their policies. Every unauthorized dollar
taken from policy owners is one less dollar that can earn interest
and be used to pay future premiums; use for policy loans; or
withdraw as cash., says the complaint.
The Plaintiff Heritagemark holds legal title to the Exemplar Policy
and is the Policy Owner recorded at Defendant UNUM.
UNUM is a corporation incorporated under the laws of the State of
Maine with its principal place of business in Tennessee.[BN]
The Plaintiff is represented by:
Julie M. Moeller, Esq.
GREENSPOON MARDER LLP
700 Milam Street, Suite 1300
Houston, TX 77002
Phone: (212) 524-4966
Facsimile: (954) 771-9264
Email: julie.moeller@gmlaw.com
- and -
Richard C. Giller, Esq.
GREENSPOON MARDER LLP
1875 Century Park East, Suite 1900
Los Angeles, CA 90067
Phone: (323) 880-4520
Facsimile: (954) 771-9264
Email: richard.giller@gmlaw.com
US LEADER: Fails to Properly Pay Restaurant Staff, Richardson Says
------------------------------------------------------------------
JAMAYIA RICHARDSON (a minor), individually and on behalf of all
others similarly situated, Plaintiff v. US LEADER RESTAURANTS, LLC
a/k/a TACO BELL, Defendant, Case No. 3:22-cv-01447 (M.D. Fla.,
December 31, 2022) is a class action against the Defendant for
failure to pay minimum wages and retaliatory discharge in violation
of the Fair Labor Standards Act.
The Plaintiff worked for the Defendant as a non-exempted cashier
and restaurant employee at Taco Bell in Florida from May 12, 2022
until her termination on May 21, 2022.
US Leader Restaurants, LLC, also known as Taco Bell, is an owner
and operator of fast-food restaurant, located at 1635 County Rd.,
Ste. 220, Fleming Island, Florida. [BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
VEGA CAPITAL: N.D. Illinois Narrows Claims in Mish Class Suit
-------------------------------------------------------------
In the case, MISH INTERNATIONAL MONETARY INC., on behalf of itself
and others similarly situated, Plaintiff v. VEGA CAPITAL LONDON,
LTD., TRADERS 1-12, INDIVIDUAL A, and JOHN DOES 1-100, Defendants,
Case No. 20 C 4577 (N.D. Ill.), Judge Gary Feinerman of the U.S.
District Court for the Northern District of Illinois, Eastern
Division, grants in part and denies in part the Defendants' motions
to dismiss.
Mish brought this putative class action against Vega Capital
London, Ltd., its owner ("Individual A"), and twelve traders
associated with Vega ("Trading Defendants"), alleging that they
conspired to manipulate the West Texas Intermediate ("WTI") Light
Sweet Crude Oil futures market in violation of Section 1 of the
Sherman Act, 15 U.S.C. Section 1, several provisions of the
Commodity Exchange Act ("CEA"), 7 U.S.C. Section 1 et seq., and
state law.
Mish is a corporation that traded on the Chicago Mercantile
Exchange ("CME") through its brokers on April 20, 2020. Vega is a
corporation that maintains a trading account with G.H. Financials
LLC, a futures commissions merchant, which allows Mish to trade on
the CME. Individual A is Vega's sole owner. Traders 1 to 12 are
persons who maintained accounts with Vega and traded in the name of
and through Vega on April 20, 2020.
The Trading Defendants committed their own capital to Vega to
guarantee each other's losses. Pursuant to a Group Trader Agreement
among Vega, the Trading Defendants, and Futures Trading Facilities
Limited -- a company owned in part by Trader 1 -- the Trading
Defendants paid Vega facility and commission fees for trading in
Vega's name. Notwithstanding Vega's financial interest in the
Trading Defendants' trades, each trader was solely responsible for
all trading decisions on the Sub-Account allocated to him/her.
The Defendants moved to dismiss the amended complaint, and the
Court denied the motions as to (most of) the claims against Traders
1 to 6, 9, and 12; granted the motions as to Traders 7 to 8 and 10
to 11, Vega, and Individual A; and gave Mish an opportunity to
replead.
Mish filed a second amended complaint, adding allegations that it
says remedy the deficiencies in the amended complaint identified by
the Court's previous opinion. It now alleges that the Trading
Defendants engaged in a similar coordinated trading strategy one
month earlier, on March 19, 2020 -- which, like April 20, 2020, was
a trading day immediately preceding a delivery date -- in order to
profit from an artificial price reduction in the April 2020 WTI
contract.
Mish also now alleges that Vega and Individual A had a duty to
monitor the Trading Defendants' trading conduct. Despite their
obligation to identify manipulative trading conduct, Vega and
Individual A did not report or prevent the Trading Defendants'
alleged manipulative conduct on April 20. Mish also now alleges
additional communications among the Trading Defendants.
The Defendants move under Civil Rule 12(b)(6) to dismiss in its
entirety, except as to the claims against Traders 1 to 6, 9, and 12
that survived dismissal in the Court's prior opinion. In its
opposition brief, Mish concedes that it does not state a viable
claim against Trader 10. Therefore, the claims against Trader 10
are accordingly dismissed with prejudice.
Judge Feinerman grants in part and denies in part the Defendants'
motions to dismiss. Mish's claims against Traders 7 and 10 are
dismissed, as are the CEA Section 2(a)(1) claims against all
Defendants. The dismissal of those claims is with prejudice.
Judge Feinerman finds that as to Trader 7, Mish does not state a
Section 1 claim. At the motion hearing, Mish conceded that it has
not alleged April 20 communications between Trader 7 and any of the
other Trading Defendants. It nonetheless argued that parallel
trading conduct, on its own, permits the inference of an unlawful
agreement. The argument conflicts with the Court's previous
opinion, which held that Trader 7's parallel conduct could not, on
its own, establish an unlawful agreement under Section 1. Mish's
argument asks the Court to alter its earlier determination without
alleging new material facts or citing new legal authority. Without
such new allegations or authority, Judge Feinerman declines to
upend its previous conclusion.
Regarding the Section 2(a)(1) claims, Judge Feinerman holds that
Mish fails to state a Section 2(a)(1) claim against the Trading
Defendants. It likewise fails to state a Section 2(a)(1) claim
against Vega and Individual A. Moreover, the Trading Defendants did
not act for Vega when trading on the CME, and Vega therefore is not
vicariously liable for the Trading Defendants' acts. The accounts
are described as Vega's property does not mean that the Trading
Defendants "acted for" Vega within the meaning of Section 2(a)(1)
by trading on the CME.
Mish has already filed two amended complaints, and it does not
explain how an additional amended complaint would cure the defects
with those claims. The case will proceed against Traders 1 to 6, 8
to 9, and 11 to 12, Vega, and Individual A on the Sherman Act
claim, the CEA Section 9(a)(2), Section 6(c)(1), and Section 13
claims, and the unjust enrichment claim. The Defendants will answer
the surviving portions of the second amended complaint by Jan. 17,
2023.
A full-text copy of the Court's Dec. 28, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/2p86554e from
Leagle.com.
VIRTUAL GAMING: Settles Class Action Over Virtual Coins for $20-M
-----------------------------------------------------------------
Sean Smith, writing for The West Australian, reports that online
casinos group Virtual Gaming Worlds will have to warn US players
about gameplay addiction as part of its near $20 million
settlement.
What Is This Lawsuit About?
A Settlement has been reached in a class action lawsuit against VGW
Malta Ltd. and VGW Luckyland, Inc. (collectively, "VGW"), alleging
claims based on the sale of virtual coins in Chumba Casino and
Luckyland Slots. VGW denies all claims and that it violated any
law, but has agreed to the settlement to avoid the uncertainties
and expenses associated with continuing the case.
Who Is In The Settlement Class?
You are a Settlement Class Member if you spent $5.00 or more within
a 24-hour period on Chumba Casino or Luckyland Slots, from March
17, 2017, through March 17, 2022, while located in the Commonwealth
of Kentucky.
What Does The Settlement Provide?
Those who file timely and properly completed claims will be
eligible to receive a share of the Settlement Fund. Your share will
be dependent on, among other things, (1) the total dollar amount of
in-game purchases you made while playing Chumba Casino and/or
Luckyland Slots, with those who spent more money receiving a higher
percentage back, and (2) how many Settlement Class Members submit
claims.
YOUR LEGAL RIGHTS AND OPTIONS
Option and Deadline
Description
SUBMIT A CLAIM FORM
March 6, 2023 The only way to receive a payment. By participating
in the settlement, you will be bound by the terms of the Settlement
Agreement and will give up certain rights. File a Claim here.
DO NOTHING You will not get a share of the settlement benefits and
will give up your rights to sue VGW about the claims in this case.
EXCLUDE YOURSELF
December 15, 2022 - Passed You will receive no benefits, but you
would have retained any rights you had to sue VGW about the claims
in this case.
OBJECT
December 15, 2022 - Passed You could have written to the Court
explaining why you didn't like the Settlement. Filing an objection
did not exclude you from the Settlement.
ATTEND A HEARING
January 9, 2023 at 1:00pm CST Ask to speak in Court about your
opinion of the Settlement.
FOR MORE INFORMATION
Visit this website often to get the most up-to-date information.
Call: 1-844-633-0695
Email: info@VGWGamesSettlement.com
Mail: VGW Games Settlement
c/o JND Legal Administration
P.O. Box 91350
Seattle, WA 98111 [GN]
VISION FINANCIAL: Kumaran Suit Transferred in D. Connecticut
------------------------------------------------------------
The case is styled as Samantha Siva Kumaran, other similarly
situated Customers 1-100, Other similarly situated CTA's 1-100,
Nefertiti Risk Capital Management, LLC v. Vision Financial Markets,
LLC, Vision Investment Advisors, Inc., Vision Brokerage Services,
LLC, H Rothman Family Advisors, Inc., Boshnack Family, LLC, High
Ridge Holding Corporation, Inc., High Ridge Futures, LLC, Howard
Rothman, Robert Boshnack, John Felag, Julie Villa, Gerard Stephen
Lazzara, Lazzara Consulting, Inc., Case No. 1:20-cv-03871 was
transferred from the United States District Court for the Southern
District of New York, to the United States District Court for the
District of Connecticut on Dec. 13, 2022.
The District Court Clerk assigned Case No. 3:22-cv-01653 to the
proceeding.
The nature of suit is stated as Other Statutes -
Securities/Commodities/Exchange.
Vision Financial Markets -- https://www.vfmarkets.com/ -- is a
self-clearing securities broker/dealer providing clearing services
in equities, options and fixed income.[BN]
WALMART INC: Bid to Stay Remand Order in Brunts Class Suit Granted
------------------------------------------------------------------
In the case, NICHOLAS BRUNTS, individually and on behalf of all
others similarly situated, Plaintiff v. WALMART INC., et al.,
Defendants, Case No. 4:22 CV 1043 RWS (E.D. Mo.), Judge Rodney W.
Sippel of the U.S. District Court for the Eastern District of
Missouri, Eastern Division, grants Walmart's motion to stay the
order entered on Dec. 12, 2022, remanding the case to Missouri
state court.
Brunts filed the putative class action in the Circuit Court of St.
Louis County, Missouri, against Walmart and Defendant Does 1
through 10. He alleges that the Defendants have engaged in false,
misleading, and deceptive marketing practices by selling certain
consumer health products, including over-the-counter cold and flu
medicines branded "Equate," that are advertised as non-drowsy even
though they contain dextromethorphan hydrobromide -- a substance
that Brunts alleges has been scientifically proven to cause
drowsiness. Brunts brings claims on behalf of himself and all other
Missouri citizens who purchased the products in Missouri during the
five years preceding this lawsuit.
Walmart removed this case to this Court on Sept. 29, 2022,
asserting that federal jurisdiction exists under under the Class
Action Fairness Act ("CAFA"), 28 U.S.C. Section 1332(d). Brunts
filed a motion to remand shortly thereafter, arguing that Walmart
had failed to meet its burden of establishing that the amount in
controversy exceeds $5 million, as required under CAFA. Because
Judge Sippel concluded that Walmart had not met its burden of
establishing that the amount in controversy exceeds $5 million, he
remanded thw case to the Circuit Court of St. Louis County,
Missouri. Walmart now seeks a stay of my order of remand pending
appellate review, arguing that the balance of equities favors a
stay.
Judge Sippel states that when deciding whether to grant a motion to
stay pending appellate review, he must consider four factors: "(1)
the likelihood that the moving party will prevail on the merits of
the appeal; (2) the likelihood that the moving party will be
irreparably harmed absent a stay; (3) the prospect that others will
be harmed if the court grants the stay; and (4) the public interest
in granting the stay," citing Banks v. Cotter Corporation (N.S.L.),
No. 4:20-CV-01227, 2021 WL 677912, at *1 (E.D. Mo. Feb. 22, 2021).
He must "'consider the relative strength of the four factors,
balancing them all.'"
Upon consideration of the four factors, Judge Sippel finds that a
stay of my order of remand is appropriate, particularly based on
the last three factors. Although he remanded the case to state
court, Walmart has demonstrated an adequate likelihood of success
on the merits of its appeal, assuming the Eighth Circuit grants its
petition under 28 U.S.C. Section1453(c).
A stay will also avoid harm to the parties by preventing them from
expending resources litigating the case simultaneously in state
court and on appeal to the Eighth Circuit and protecting against
the potential for inconsistent outcomes should the state court rule
on any motions while the appeal is pending. It is also significant
that Brunts will not be harmed by a delay caused by a stay because
28 U.S.C. Section 1453(c) provides for an expedited appellate
review process. Finally, the public interest favors granting a stay
because a stay will avoid potentially duplicative litigation,
thereby conserving judicial resources and promoting judicial
economy.
For these reasons, Walmart's motion is granted.
A full-text copy of the Court's Dec. 28, 2022 Memorandum & Order is
available at https://tinyurl.com/3yhs3rvd from Leagle.com.
WALMART INC: N.D. California Narrows Claims in Gagetta Class Suit
-----------------------------------------------------------------
Judge William H. Orrick of the U.S. District Court for the Northern
District of California grants in part and denies in part the
Defendant's motion to dismiss the lawsuit styled SUSAN GAGETTA, et
al., Plaintiffs v. WALMART, INC., Defendant, Case No.
3:22-cv-03757-WHO (N.D. Cal.).
The Plaintiffs filed this putative class action complaint alleging
that they purchased herbs and spices from Defendant Walmart, Inc.,
which contained or risked containing toxic heavy metals, that those
metals are unsafe at any level, and that they would not have
purchased those products, or would have paid less for them, had
Walmart not omitted the risk from its labels. Walmart does not
contest that these products may have contained heavy metals but
argues the levels of the metals that could be in the products are
safe, and so there is no injury from the risk.
Walmart filed a motion to dismiss, asserting that the Plaintiffs
failed to establish Article III standing, statutory standing, or
standing for injunctive relief, and that the Plaintiffs failed to
state claim for several causes of actions.
According to the Order, though Walmart may be correct on the merits
about the safety of its products, that that is a disputed fact
inappropriate to resolve at this stage of litigation. The
Plaintiffs plausibly alleged a theory of injury for standing
purposes and for most of its causes of action based on the risk
that the products contained toxic heavy metals. But Walmart
correctly notes that the Plaintiffs fail to state a claim for
implied warranty of merchantability because the allegations are not
plausible that the products they purchased actually contained toxic
heavy metals, Judge Orrick points out.
Named Plaintiffs Susan Gagetta and Tracie Gomez purchased several
herbs and spices sold by Walmart under the Great Value brand,
including chili powder, organic paprika, basil leaves, and ground
cumin. They allege that the spices and herbs "contain (or have a
risk of containing) unsafe toxic Heavy Metals" including lead,
arsenic, and cadmium.
The Plaintiffs' allegations are based on an article published in
November 2021 by Consumer Reports, which found that one-third of
the herbs and spices it tested contained unsafe levels of arsenic,
lead, and cadium, and found that Walmart's Great Value brand chili
powder, organic paprika, basil leaves, and ground cumin contained
levels that were of at least "some concern." The Plaintiffs assert
that even very small exposures to these metals are dangerous to
humans, and so Walmart's herbs and spices were "unsafe for human
consumption."
The products' labels did not contain warnings that the products
contained or risked containing heavy metals. The Plaintiffs contend
that the omissions were related to Walmart's ongoing desire to
rebrand itself as trustworthy.
The Plaintiffs assert that they saw, read, and understood the
labels on the products, and that they relied upon the omission of
warnings about the potential dangers of the product when making the
decision to purchase the herbs and spices. Had they known the
products contained or risked containing the heavy metals, the
Plaintiffs would not have purchased the products or would have paid
less for them. While they wish to purchase the products again in
the future, they are "unable to determine if the Products are
actually safe" because they cannot rely on the labels and
packaging.
The Plaintiffs filed this complaint on behalf of themselves, a
nationwide class, and a California subclass, asserting 10 causes of
action: (1) fraudulent acts and practices in violation of
California's Unfair Competition Law ("UCL"); (2) unlawful acts and
practices in violation of the UCL; (3) unfair acts and practices in
violate of the UCL; (4) violation of California's False Advertising
Law ("FAL"); (5) violation of California's Consumer Legal Remedies
Act ("CLRA"); (6) breach of the implied warranty under the
Song-Beverly Act; (7) breach of the implied warranty of
merchantability; (8) fraud; (9) unjust enrichment; and (10)
negligent failure to warn.
Walmart filed this motion to dismiss. The Plaintiffs opposed, and
Walmart replied.
Walmart requests judicial notice of public statements from the U.S.
Food and Drug Administration (FDA) and United States Department of
Agriculture (USDA) websites, attached to its motion as Exhibits B
through E. The Plaintiffs have not opposed the request.
The documents show that the FDA monitors, tests, and sets standards
for metals in food; that the FDA has a program for limiting
children's exposure to toxic elements; and that the USDA works with
the FDA to reduce heavy metals in food, particularly in baby food.
Walmart relies on these documents to support its arguments that all
foods contain these metals and that if the FDA or USDA were
concerned about levels in spices, they would regulate them.
But the websites do not directly support either assertion, Judge
Orrick finds. He says he may only take judicial notice of facts not
subject to reasonable dispute if they are "generally known" or "can
be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned," citing Fed. R. Evid. 201(b)(2).
Neither applies here, Judge Orrick holds.
Even if Walmart's requested facts could be "accurately and readily
determined" from the FDA and USDA websites, the websites themselves
"are not regulations, guidelines, or even studies that conclusively
establish that" the metals at issue are safe at any level, Judge
Orrick opines. These assertions are, therefore, subject to
reasonable dispute and not confirmed by the documents to be
noticed. As such, Judge Orrick takes judicial notice of the
existence of these websites, but not of the truth of the facts
asserted in them.
Walmart challenges the Plaintiffs' standing to bring any of their
claims, which is a challenge to the Court's jurisdiction. Walmart
says the Plaintiffs cannot show injury in fact because they do not
allege that the products they purchased or consumed contained heavy
metals, they do not allege that they suffered physical injuries,
and they cannot assert economic injury if they cannot show the
products contained metals.
Viewing the allegations in the light most favorable to the
Plaintiffs, Judge Orrick finds they have sufficiently pleaded
injury-in-fact to establish standing.
Walmart's argument about "plausible reliance" does not clarify the
legal basis on which it relies, Judge Orrick notes. Based on the
cited cases, it seems that Walmart is arguing the Plaintiffs failed
to establish statutory standing for their UCL, CLRA, and FAL claims
due to failure to establish reliance on Walmart's alleged
omissions.
As discussed, Judge Orrick finds the Plaintiffs allege sufficient
facts to plausibly plead economic injury. They also plead that they
saw, read, and understood the products' labels before purchasing
the products, relied on the labels and their omission of the risk
of heavy metals in making their purchases, and would not have
bought the products or would have paid less for the products but
for the omissions.
Judge Orrick finds that the Plaintiffs' allegations are
sufficiently plausible to show that the omissions on the product
labels caused them to purchase products they might not have
otherwise purchased. Judge Orrick holds that the Plaintiffs
plausibly alleged reliance on the misrepresentations to meet the
statutory standing requirements for the UCL, CRLA and FAL. Hence,
they established statutory standing for their UCL, CLRA, and FAL
claims.
The Defendants say that the Plaintiffs fail to establish standing
for injunctive relief because the Plaintiffs now know the risk that
the products contain heavy metals and that knowledge can inform
future purchase choices.
Judge Orrick opines that whether the Plaintiffs' plausible
allegations are true is a question for another stage of the
litigation. For now, the Plaintiffs establish standing for
injunctive relief.
Finally, Walmart argues the UCL, implied warranty and unjust
enrichment claims should be dismissed because the Plaintiffs failed
to state a claim. Judge Orrick finds that the Plaintiffs
sufficiently pleaded a claim under the UCL's unlawful prong.
The Plaintiffs allege that Walmart breached the implied warranty
under the Song-Beverly Act and breached the implied warranty of
merchantability. Walmart contends the Plaintiffs do not plead a
claim under those causes of action because they do not allege that
the products "were without the most basic degree of fitness," were
"worthless," or "failed to perform their most basic function of
flavoring or seasoning."
Judge Orrick agrees with Walmart.
As discussed, at this stage the Plaintiffs' theory of injury
sufficient for standing is that they were economically harmed
because they would not have purchased the products or would have
paid less had they known the products risked containing heavy
metals. The theory survives in part because Walmart does not
contest that their products risk containing these metals; rather,
Walmart says that most agricultural products have similar levels of
metal and those levels are safe.
Though this is a question of fact that cannot be resolved on a
motion to dismiss, Judge Orrick says it is relevant to the implied
warranty claims because it is unaddressed by the complaint and
shows that the Plaintiffs have not alleged facts showing that that
the products failed to conform to the standard performance of like
products used in the trade. Nor do the Plaintiffs plead sufficient
facts that the herbs and spices they purchased were unfit for their
"ordinary purpose" as food products, or were "unfit for
consumption," or were "not merchantable or fit for use as" herbs or
spices.
The Plaintiffs' conclusory assertion that the products were "unsafe
for human consumption" is not plausible unless they can plead
supporting facts showing that the herbs and spices purchased by the
plaintiffs were somehow distinct from those that are safe, Judge
Orrick holds.
Therefore, Judge Orrick dismisses the implied warranty of
merchantability and the Song-Beverly Act claims. Judge Orrick
grants leave to amend because the Plaintiffs asserted at the
hearing that they may be able to plead additional facts for these
claims.
Walmart argues that California does not recognize a standalone
claim for unjust enrichment and the Plaintiffs cannot assert a
"duplicative" claim for unjust enrichment because they already seek
restitution under state law statutory claims."
But as he has previously explained, under California law "a court
may 'construe' a claim for unjust enrichment as 'a quasi-contract
claim seeking restitution,'" Judge Orrick says, citing Beluca
Ventures LLC v. Aktiebolag, No. 21-CV-06992-WHO, 2022 WL 3579879,
at *4 (N.D. Cal. Aug. 19, 2022) (quoting Astiana v. Hain Celestial
Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015)). For that reason,
Judge Orrick rejects Walmart's request to dismiss the unjust
enrichment claim based on the assertion that California does not
recognize the cause of action.
Judge Orrick holds that Walmart's argument that the Plaintiffs may
only proceed with restitution-seeking claims if they waive their
tort claims is unconvincing. Accordingly, Walmart's motion to
dismiss is denied on this basis.
For those reasons, Judge Orrick rules that the implied warranty
claims for causes of action 6 and 7 are dismissed with leave to
amend, all claims based on ground ginger are dismissed with leave
to amend, and the rest of the motion to dismiss is denied. The
Plaintiffs may file an amended complaint within 21 days of the date
of the filing of this order.
A full-text copy of the Court's Order dated Dec. 19, 2022, is
available at https://tinyurl.com/5ebvys5b from Leagle.com.
WALT DISNEY: Sued Over Unlawful Wiretapping of Communication
------------------------------------------------------------
Joshua Sadlock, individually and on behalf of all other persons
similarly situated v. THE WALT DISNEY COMPANY, Case
3:22-cv-09155-AGT (N.D. Cal., Dec. 29, 2022), is brought against
the Defendant for procuring the wiretapping of electronic
communications of visitors to ESPN.com by third party Oracle
America, Inc. in violation of the Pennsylvania Wiretapping and
Electronic Surveillance Control Act ("WESCA").
Through its Blue Kai Pixel, Oracle, as procured by Disney, secretly
observed, recorded, and otherwise intercepted website visitors'
electronic communications with the Defendant and used that data to
improve its own marketing and analytical capabilities, as well as
those of Defendant. By doing so, Defendant has violated the WESCA.
On November 12, 2022, the Plaintiff visited the Website. During the
visit, Oracle, as procured by the Defendant, recorded and thereby
intercepted the Plaintiff's electronic communications in real time
with the Defendant. During the visit, the Plaintiff's keystrokes,
mouse clicks, and other communications--such as the specific web
pages he viewed--were intercepted in real time by Oracle. the
Plaintiff was unaware at the time that his keystrokes, mouse
clicks, and other electronic communications were being intercepted
in real-time by Oracle, nor did the Plaintiff consent to the same.
The Plaintiff brings this action on behalf of himself and a class
of all persons whose electronic communications were intercepted
through the use of Defendant's wiretap on the ESPN website, says
the complaint.
The Plaintiff browsed ESPN.com on his computer.
The Walt Disney Company owns and operates ESPN.com.[BN]
The Plaintiff is represented by:
L. Timothy Fisher, Esq.
BURSOR & FISHER, P.A.
1990 North California Boulevard, Suite 940
Walnut Creek, CA 94596
Phone: (925) 300-4455
Facsimile: (925) 407-2700
Email: ltfisher@bursor.com
- and -
Joseph I. Marchese, Esq.
Max S. Roberts, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Phone: (646) 837-7150
Facsimile: (212) 989-9163
Email: jmarchese@bursor.com
mroberts@bursor.com
WHOLE CART: Hinojosa Files Suit in Cal. Super. Ct.
--------------------------------------------------
A class action lawsuit has been filed against The Whole Cart, LLC,
et al. The case is styled as Briana Hinojosa, an individual, on
behalf of themself, and others persons similarly-situated v. The
Whole Cart, LLC, Does 1-20, inclusive, Off The Grid Services, LLC,
Case No. CGC22603603 (Cal. Super. Ct., San Francisco Cty., Dec. 20,
2022).
The case type is stated "Other Non-Exempt Complaints."
The Whole Cart offers a new catering option for companies by
providing large-scale mobile food service and event catering.[BN]
The Plaintiff is represented by:
Joseph D. Sutton, Esq.
ADVOCATES FOR WORKER RIGHTS LLP
212 9th Street, Suite 314
Oakland, CA 94607
WINDHAM PROFESSIONALS: Chaga Files FDCPA Suit in E.D. Pennsylvania
------------------------------------------------------------------
A class action lawsuit has been filed Windham Professionals, Inc.
The case is styled as Jason Chaga, individually and on behalf of
all others similarly situated v. Windham Professionals, Inc., Case
No. 2:22-cv-04957-MAK (E.D. Pa., Dec. 13, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Windham Professionals -- https://www.windhampros.com/ -- offers
revenue recovery and customer retention management solutions to
improve financial performance and customer experience.[BN]
The Plaintiff is represented by:
Scott Howard Bernstein, Esq.
LAW OFFICES OF SCOTT H. BERNSTEIN, LLC
101 Eisenhower Parkway, Suite 300
Roseland, NJ 07068
Fax: (203) 246-2887
Email: scott@scottbernsteinlaw.com
WOLVERINE WORLD: Fontanez TCPA Class Suit Remanded to State Court
-----------------------------------------------------------------
In the case, DORIS FONTANEZ, Individually and on behalf of all
others similarly situated, Plaintiff v. WOLVERINE WORLD WIDE, INC.,
Defendant, Case No. 8:22-cv-2538-KKM-TGW (M.D. Fla.), Judge Kathryn
Kimball Mizelle of the U.S. District Court for the Middle District
of Florida, Tampa Division:
a. grants Fontanez's Motion to Remand;
b. denies Fontanez's request for attorney's fees; and
c. denies without prejudice Wolverine's Motion to Compel
Arbitration without prejudice.
The Florida Telephone Solicitation Act (FTSA) prohibits telephone
solicitors from making a telephonic sales call if such call
involves an automated system for the selection or dialing of
telephone numbers or the playing of a recorded message when a
connection is completed to a number called without the prior
express written consent of the called party."
Fontanez allegedly received at least one unsolicited text message
from Wolverine and sued on behalf of herself and others similarly
situated for violations of the FTSA. She alleges no tangible harm
suffered by her receipt of the unsolicited text message. Instead,
she asserts that Wolverine adversely affected and infringed upon
her legal rights not to be subjected to the illegal acts at issue.
Fontanez filed this putative class action in state court in
September 2022, and Wolverine removed the action under the Class
Action Fairness Act (CAFA) in November 2022. Wolverine moves to
compel arbitration and to dismiss the action. In response, Fontanez
moves to remand, which Wolverine opposes. She also filed an amended
complaint.
Judge Mizelle explains that the party removing a case to federal
court bears the burden of establishing subject matter jurisdiction.
In addition, federal courts must independently assure themselves
that they have jurisdiction over a case at every stage, regardless
of whether the parties raise the issue or agree that jurisdiction
exists. As such, after removal, if at any time before final
judgment it appears that the district court lacks subject matter
jurisdiction, the case will be remanded.
To demonstrate standing, the party invoking federal jurisdiction
must prove three elements: the plaintiff must have suffered an
injury in fact, the defendant must have caused that injury, and a
favorable decision must be likely to redress it.
Applying this to an alleged violation of the Telephone Consumer
Protection Act (TCPA), the Eleventh Circuit has held that history
and the judgment of Congress do not support finding concrete injury
for receipt of a single unsolicited text message. Indeed, the
chirp, buzz, or blink of a cell phone receiving a single text
message is more akin to walking down a busy sidewalk and having a
flyer briefly waived in one's face. A brief, inconsequential
annoyance is not a basis for invoking the jurisdiction of the
federal courts.
As an initial matter, Wolverine argues that Fontanez's complaint at
the time of removal -- not the amended complaint -- governs for
purposes of determining jurisdiction. But because the Court has an
independent responsibility to evaluate its jurisdiction at every
stage of the case, Judge Mizelle examines both the original
complaint and the amended complaint (which Rule 15(a) permitted
Fontanez to file) and concludes that Fontanez lacks Article III
standing under either pleading.
Wolverine -- as the removing party -- must show Fontanez's injury
rises to the level of concreteness required of Article III. It has
not done so, Judge Mizelle finds. If a single text message did not
constitute a concrete injury under the federal statute, it cannot
constitute a concrete injury under a state law analog.
Even if Fontanez received a handful of unsolicited text messages
(which the original complaint appeared to indicate), she still
lacks a concrete injury. The lack of standing is particularly
obvious in the case, where Fontanez does not allege that she wasted
time or tangible resources because of the text messages. She does
not even allege that she read the messages, that the messages
consumed her phone battery or data, or that she suffered any
annoyance. Wolverine offers no evidence to the contrary. Thus,
whether Fontanez alleges receipt of one text message or three text
messages, her failure to allege any concrete injury means this
Court lacks jurisdiction and must remand.
Wolverine's remaining arguments regarding Fontanez's alleged
attempts to escape federal jurisdiction by altering the amount in
controversy miss the point. Regardless of the amount in controversy
or diversity of the parties, Judge Mizelle holds that the Court
must have Article III jurisdiction. Wolverine has failed to show
that.
In addition to remand, Fontanez requests attorney's fees and costs
because the removal here was obviously unreasonable. Judge Mizzele
states that although standing is lacking even if premised on three
text messages, it was not unreasonable for Wolverine to remove
based on Fontanez's original complaint. Because the standard for
awarding fees should turn on the reasonableness of the removal, and
Fontanez did not file her amended complaint alleging receipt of a
single text message until after Wolverine removed the case, she
denies Fontanez's request for attorney's fees and costs.
Accordingly, Judge Mizelle grants Fontanez's Motion to Remand,
denies Fontanez's request for attorney's fees, and denies without
prejudice Wolverine's Motion to Compel Arbitration without
prejudice.
The Clerk is directed to remand the action to the Circuit Court of
the Ninth Judicial Circuit, in and for Polk County, Florida, and to
transmit a certified copy of this Order to the clerk of that court;
to terminate any pending motions and deadlines; and to close the
case.
A full-text copy of the Court's Dec. 27, 2022 Order is available at
https://tinyurl.com/rt6f7n9p from Leagle.com.
WORLD FINEST: Faces Garcia Suit Over Failure to Pay Overtime Wages
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JULIO MARTINEZ GARCIA, individually and on behalf of all others
similarly situated, Plaintiff v. WORLD FINEST BAKERS LLC, PETER
RUGGERI and JOSEPH VITACCO, as individuals, Defendants, Case No.
1:22-cv-07540-CBA-SJB (E.D.N.Y., December 13, 2022) brings this
collective action complaint alleging the Defendants of egregious
violations of the Fair Labor Standards Act and New York Labor Law.
The Plaintiff has worked for the Defendants from in or around 1997
until in or around November 2022 as a baker while performing
miscellaneous duties for the Defendants.
The Plaintiff claims that although he was regularly required by the
Defendants to work approximately 60 to 65 hours or more hours each
week, he was not paid overtime compensation at the rate of one and
one-half times his regular rates of pay for all hours worked in
excess of 40 per workweek. Instead, the Defendants paid him a flat
weekly rate of approximately $600.00 per week for all hours worked
during the relevant statutory period. The Defendants also did not
pay him an extra hour at the legally prescribed minimum wage
despite working in excess of 10 hours or more hours per day
approximately 5 days per week. Additionally, the Defendants
willfully failed to keep payroll records, and failed to post
notices of the minimum wage and overtime wage requirements in a
conspicuous place at the location of their employment as required
by both the FLSA and NYLL. Moreover, the Defendants willfully
failed to provide him with any wage statements upon each payment of
his wages, and willfully failed to provide him with a written
notice of his applicable regular rate of pay, regular pay day, and
all such information as required by NYLL, says the Plaintiff.
On behalf of himself and all other similarly situated employees,
the Plaintiff seeks to recover unpaid overtime wages, spread of
hours compensation, liquidated damages, pre- and post-judgment
interest, litigation costs together with reasonable attorneys'
fees, and other further relief as the Court deems necessary and
proper.
World Finest Bakers LLC operates a bakeshop. Peter Ruggeri and
Joseph Vitacco are the owners of the Corporate Defendant. [BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Tel: (718) 263-9591
YOUR FAMILY: Fails to Pay Proper Overtime Wages, Masoloko Alleges
-----------------------------------------------------------------
NNYANA MASOLOKO; and KEFILWE LEKUNTWANE, individually and on behalf
of all others similarly situated, Plaintiff v. YOUR FAMILY HOME
CARE LLC; JENNIFER ROSS; RACHEL FAITH LORENZEN; and DELROY ROSS,
Defendants, Case No. 3:22-cv-01658 (D. Conn., Dec. 30, 2022) is an
action against the Defendants' failure to pay the Plaintiffs and
the class minimum wages, and overtime compensation for hours worked
in excess of 40 hours per week.
The Plaintiffs were employed by the Defendants as caregivers.
YOUR FAMILY HOME CARE LLC provides a variety of services including
trained in-home caregivers, and hourly or live-in services. [BN]
The Plaintiff is represented by:
Nitor V. Egbarin, Esq.
LAW OFFICE OF NITOR V. EGBARIN, LLC
100 Pearl Street, 14th Floor
Hartford, CT 06103-3007
Telephone: (860) 249-7180
Facsimile: (860) 408-1471
Email: NEgbarin@aol.com
ZERO ODOR COMPANY: Zarzuela Files ADA Suit in N.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Zero Odor Company,
LLC. The case is styled as Jose Zarzuela, individually, and on
behalf of all others similarly situated v. Zero Odor Company, LLC,
Case No. 1:22-cv-10973 (N.D.N.Y., Dec. 29, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Zero Odor -- https://www.zeroodor.com/ -- is a chemicals, cleaning
products, and chemicals, petrochemicals, glass & gases company
located in Litchfield, Connecticut .[BN]
The Plaintiff is represented by:
William Downes, Esq.
MIZRAHI KROUB LLP
225 Broadway, Ste. 39th Floor
New York, NY 10007
Phone: (212) 595-6200
Email: wdownes@mizrahikroub.com
[*] Morgan's Selectboard Votes to Join PFAS Class Action Suit
-------------------------------------------------------------
The Newport Daily Express reports that The Morgan's selectboard is
on the verge of joining a class action lawsuit with the National
Rural Water Association (NRWA) over PFAS contaminated public water
systems. The E. Taylor Hatton School is owned by the town and
houses the private school Turning Points. Test results from the
well found elevated levels of PFAS chemicals in the water.
Morgan's selectboard voted to join the lawsuit being filed by NRWA
at their last meeting. Chair Eric Pope said they must still review
documents sent by the law firm Napoli Shkolnik PLLC before giving
final authorization to join the lawsuit.
Per- and polyfluoroalkyl substances (PFAS) are man made chemicals
used in a wide range of consumer and industrial products. PFAS do
not easily break down and can accumulate in the environment and in
humans. Exposure to some types of PFAS have been linked to serious
health effects.
Water quality testing for PFAS by Otter Creek Engineering in
December 2020 and January 2021 produced samples of 29.98 parts per
trillion (PPT) and 24.25 PPT, at the school. The samples were above
the state standard of 20 PPT, the maximum contamination level.
Ground water samples taken 2,500 feet from the school's well were
also tested and found to contain high levels of PFAS.
Last February, NRWA filed a federal lawsuit on behalf of its
members against PFAS manufacturers. According to a press release,
NRWA took this action for a simple reason: their rural water and
wastewater systems are not responsible for manufacturing or
introducing these man-made chemical compounds into communities and
environments.
NRWA contends rural communities should not have to bear the
financial burden for the costs of testing, treatment, and
remediation. Rural customers, including the elderly, disabled, and
low-income families, have nominal resources to address contaminated
drinking water supplies.
"These smaller communities lack the resources to participate
individually and hold those accountable for the damages they have
caused," CEO Sam Wade of the NRWA said in a press release.
"Representing the membership in any settlement is an obligation of
the association."
NRWA is a nonprofit organization with a 50 state presence. The
organization provides training and support for rural communities
managing water and wastewater treatment facilities.
This lawsuit is a first for the National Rural Water Association.
There are 49,731 community water systems in the nation; 91 percent
serve less than 10,000 people and 54 percent serve less than 500
consumers.
"While any potential settlement is likely still years away, there
may be an eventual opportunity for systems to recoup costs related
to PFAS monitoring and treatment," Liz Royer said. Royer is the
executive director of Vermont Rural Water Association, a state
affiliate of NRWA.
The Vermont Attorney General's office has also filed two lawsuits
against companies that manufacture and distribute PFAS chemicals in
their products.
There are no upfront costs if Morgan joins the NRWA lawsuit. All
expenses will be paid for when the lawsuit is settled. The Morgan
selectboard reserves the right to accept or reject a settlement
offer. [GN]
*********
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