/raid1/www/Hosts/bankrupt/CAR_Public/230116.mbx
C L A S S A C T I O N R E P O R T E R
Monday, January 16, 2023, Vol. 25, No. 12
Headlines
ACRE GOURMET: Pool Files Suit in Cal. Super. Ct.
ADVANCED MARKETING: Scheduling Order Entered in Lamberth
AHRC HEALTH: Judge Recommends Granting of Conditional Cert to Onate
ALLSTATE LIFE: Hearing on Class Status Bid Set for March 8
AMAZON.COM SERVICES: Lites Must Reply to Opposition by Jan. 25
AVANTUS LLC: Martinez Wins Bid to Certify Redefined Class
BHS MANAGEMENT: Court Modifies Case Management Order in Coviello
BIG CITY SPORTSWEAR: Feliz Files ADA Suit in S.D. New York
BOWDEN RESTAURANTS: Warren Files FLSA Suit in W.D. Arkansas
BROOKLYN UNION: RJC Sues Over Inaccurate Tax-Cost Surcharges
CAL GASOLINE: Parties Seek to Modify Class Certification Briefing
CALIFORNIA: Parties Seek to Modify Sealing Procedures
CALIMIRA LLC: Toro Sues Over Unlawful Tip Credit
CANTEX CONTINUING: Wallace Bid to Authorize Notice Partly Granted
CENTER FOR SCIENCE: Case Management Order Entered in Henderson
CHENEY BROTHERS: More Time to Submit Witness Summaries Sought
CHICWISH LLC: Feliz Files ADA Suit in S.D. New York
COMMUNITY LOAN: Lesky Sues Over Failure to Safeguard PII
COUNTRY MUTUAL INSURANCE: Sudholt Suit Removed to S.D. Illinois
DEE MARK: Lorenzo Sues Over Unpaid Overtime & Invalid Tip Credit
DELI MANAGEMENT: Extension of Time to File Response OK'd
DOG IS GOOD: Velazquez Files ADA Suit in S.D. New York
DONSCO INC: Snyder Sues to Recover Unpaid Overtime Wages
ECOLAB INC: Court Awards $40K in Atty.'s Fees & Costs in Miner Suit
EDIBLE ARRANGEMENTS: Scheduling Order Entered in Gomez
EDUCATIONAL CREDIT: Lepur FCRA Suit Removed to S.D. California
ELDER DEPOT INC: Velazquez Files ADA Suit in S.D. New York
FCA U.S. LLC: Crowell Files Suit in D. Delaware
FCA US: Court Grants in Part Nuwer Bid to Certify Class
FIRSTSERVICE: Reconsideration of Summary Judgment Order Sought
FORT BELVOIR: Completion of Discovery Extended to May 16
FRANKLIN WIRELESS: Bid for Class Certification in Ali Suit Granted
GENERAL MOTORS: Class Cert Briefing Deadlines Extended in Pilgrim
GOOGLE LLC: Class Cert Briefing Schedule Extended in Rodriguez
GRAND CANYON: Plaintiffs' Allowed to File Class Cert Bid by Feb. 3
GRANITE SERVICES: More Time to File Class Cert Response Sought
GRETCHEN WHITMER: Rouse Must File Class Cert Bid by Feb. 13
HARMON STORES: E.D. New York Refuses to Dismiss Georgiou Suit
HEIDI WASHINGTON: Bossum Bid for Class Certification Junked
HENRY INDUSTRIES: Amended Pretrial Sched Order Entered in Sarte
HEY FAVOR INC: Sued Over Unlawful Disclosure of PII
HICKORY, NC: Appeals Court Affirms Summary Judgment in Gantt Suit
HOMESPIRE MORTGAGE: Conditional Cert. of Collective Action Sought
HUSSONG MANUFACTURING: Velazquez Files ADA Suit in S.D. New York
I.C. SYSTEM: Perez Given Leave to Amend Complaint Within 30 Days
INTERNATIONAL PROTECTIVE: Gomes Sues Over Unpaid Wages
JMJ ENTERPRISES: Wade Seeks to Certify NCWHA Class Action
JP MORGAN: Preliminary Pretrial Order Entered in Radabaugh
JUUL LABS: Seeks to Stay All Proceeding Pending Appeal
KDM ANCHOR: Initial Pretrial Conference Order Entered in Smith
KENT STATE UNIVERSITY: Class Certification in Waitt Suit Reversed
KIA AMERICA: Brady Suit Transferred to C.D. California
KIA AMERICA: Hall Suit Transferred to C.D. California
L AND R AUTO: Colquitt Sues Over Unpaid Minimum, Overtime Wages
LIMITLESS PCS: Preliminary Pretrial Order Entered in Horn Suit
M AND S ENTERPRISE: Townsend FCRA Suit Removed to C.D. California
MAHA INC: N.D. Illinois Refuses to Certify Class in Kim Wage Suit
MALLINCKRODT ARD: Amended Scheduling Order Entered in Steamfitters
MDL 2433: Matheny Suit Consolidated in Water Contamination Row
MDL 2846: Blaurock Suit Consolidated in Hernia Mesh Product Row
METROPOLITAN ASSOCIATES: Lenten Sues Over Failure to Secure PII
MOVADO GROUP: Cody Suit Removed to E.D. Arkansas
MY RIDEMAKER: Toro Files ADA Suit in S.D. New York
NEW DOMINION: Order Striking Griggs' Class Allegations Affirmed
NEW YORK, NY: Class Certification Oral Argument Set for Feb. 2
OLAM SPICES: Beltran's Bid for Attys.' Fees and Costs Deemed Timely
ONE TOUCH DIRECT: Aliotta Files TCPA Suit in M.D. Florida
ORSCHELN FARM: Toro Files ADA Suit in S.D. New York
PATTERN ENERGY: Class Certification in Securities Suit Recommended
PEPPER SOURCE: Cagle Files FLSA Suit in W.D. Arkansas
PFIZER INC: Abreu Suit Transferred to S.D. New York
PFIZER INC: Duff Suit Transferred to S.D. New York
PFIZER INC: Edwards Suit Transferred to S.D. New York
PFIZER INC: Evans Suit Transferred to S.D. New York
PFIZER INC: Monmouth County Suit Transferred to S.D. New York
PINBALL COMPANY: Toro Files ADA Suit in S.D. New York
QUENCH IT INC: Donet Sues Over Blind-Inaccessible Website
QUILL LINCOLNSHIRE: Feliz Files ADA Suit in S.D. New York
REALPAGE INC: Court Issues Order to Show Cause in Augustson Suit
REALPAGE INC: Yusupov Sues Over Artificially Inflated Price
RECEIVABLE PERFORMANCE: Filing of Class Cert Bid Due April 1
RECKITT BENCKISER: BRRS Bid for Class Cert. Denied w/o Prejudice
RETAIL EQUATION: Wins Bid to Dismiss Certain Claims in Lloyd Suit
RETREAT AT LANCASTER: Worton Files Suit in E.D. Pennsylvania
REY E. GRABATO: Frantatoro Sues Over Exchange Act Violation
ROMEO POWER: CMP & Scheduling Order Entered on Securities Suit
RUNAMOK MAPLE: Mejia Files ADA Suit in S.D. New York
SCOUT ENERGY: Class Certification Stage Scheduling Order Entered
SELENE FINANCE: Extension of Deadline to File Class Cert Bid Sought
SEPHORA USA: Scheduling Order Entered in Espinal Class Suit
SIXT RENT: Deadline Extension to File Class Status Bid Sought
SMILEDIRECTCLUB: Provider Plaintiffs File Briefing Schedule
SNAP FINANCE: Grayes Sues Over Failure to Implement Cybersecurity
SNIP-ITS FRANCHISE: Velazquez Files ADA Suit in S.D. New York
SOUTHWEST CREDIT: Golka Files FDCPA Suit in C.D. California
SPOKEO INC: Class Cert Briefing Schedule Extended in Kellman
STATE FARM FIRE: Brown Suit Removed to W.D. Missouri
STATE FARM MUTUAL: Baldwin Suit Removed to E.D. Arkansas
SUFFOLK UNIVERSITY: Jackson Sues Over Failure to Safeguard PII
SUN-MAID GROWERS: Court Lifts Stay in Velasquez Suit
SUNSET INSTALLATION: Harris Files Suit in Cal. Super. Ct.
SUPERIOR SCAFFOLDING: Scheduling Order Entered in Fernandez
TOYOTA MOTOR: Plaintiffs Bid to File Class Cert Reply OK'd
TRADER JOE'S: Herd Sues Over Unsafe Levels of Lead in Chocolate
TURTLEFTPIERCE LLC: Filing of Class Status Bid Extended to Jan. 20
TURTLEFTPIERCE LLC: More Time to Move for Class Cert Sought
U.S. BANCORP: Dionicio Sues Over Breaches of Fiduciary Duties
UNITED STATES: Burgos Files Suit in N.D. Illinois
W STREETS LLC: Starling Files TCPA Suit in D. Arizona
WALGREENS BOOTS: Bell's Bid to Remand Suit to State Court Denied
WESTERN ALLIANCE: Mathews Sues Over Failure to Pay Overtime Wages
WESTGATE PALACE: Joint Bid for Extension of Certain Deadlines Filed
WIZARD'S CHEST: Velazquez Files ADA Suit in S.D. New York
XOOM ENERGY: Class Certification Briefing Schedule Proposed
*********
ACRE GOURMET: Pool Files Suit in Cal. Super. Ct.
------------------------------------------------
A class action lawsuit has been filed against Acre Gourmet, Inc.,
et al. The case is styled as Ivette Pool, an individual, on behalf
of herself and other persons similarly-situated v. Acre Gourmet,
Inc., Steve De Cosse, Stacey Britt Galler, Does 1-20, Inclusive,
Case No. CGC22603652 (Cal. Super. Ct., San Francisco Cty., Dec. 22,
2022).
The case type is stated "Other Non-Exempt Complaints."
Acre Gourmet, Inc. -- https://www.acregourmet.com/ -- offers a
daily experience of delicious, balanced, meals celebrates healthy
eating habits, curbing kids' reliance on processed and sugary
foods.[BN]
The Plaintiff is represented by:
Eric Sebastian Trabucco, Esq.
ADVOCATES FOR WORKER RIGHTS LLP
212 9th St Ste 314
Oakland, CA, 94607-4479
ADVANCED MARKETING: Scheduling Order Entered in Lamberth
--------------------------------------------------------
In the class action lawsuit captioned as BRITTANY LAMBERTH, v.
ADVANCED MARKETING & PROCESSING, INC., Case No.
8:22-cv-02167-CEH-CPT (M.D. Fla.), the Hon. Judge Charlene Edwards
Honeywell entered a case management and scheduling order as
follows:
Mandatory Initial Disclosures Feb. 3, 2023
Motions to Add Parties or to Amend Mar. 24, 2023
Pleadings
Disclosure of Expert Reports
Plaintiff: Jul. 3, 2023
Defendant: Aug. 3, 2023
Rebuttal: Sept. 1, 2023
Discovery Deadline Nov. 3, 2023
Deadline for moving for class May 20, 2023
certification, if applicable
Dispositive Motions, Daubert, and Dec. 8, 2023
Markman Motions
Meeting In Person to Prepare Joint Apr. 5, 2024
Final Pretrial Statement
Advanced Marketing is in the business of Warranty Insurance,
Automobile since 2005.
A copy of the Court's order dated Jan. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3Zg41Dj at no extra charge.[CC]
AHRC HEALTH: Judge Recommends Granting of Conditional Cert to Onate
-------------------------------------------------------------------
In the class action lawsuit captioned as ANTONIO ONATE JR., on
behalf of himself and all others similarly situated, v. AHRC HEALTH
CARE, INC., Case No. 1:20-cv-08292-LGS-JW (S.D.N.Y.), the Hon.
Judge Jennifer E. Willis recommends that the Plaintiffs' motion be
granted:
The Plaintiff Antonio Onate Jr., on behalf of himself and all
others similarly situated, alleges that Defendant AHRC Health Care
Inc. violated the Fair Labor Standards Act ("FLSA") and New York
Labor Law ("NYLL") by not paying their non-exempt salaried and
hourly employees ("Employees") for all hours worked, artificially
rounding down Employees' time worked, and automatically deducting
Employees' time for meal breaks.
The Plaintiffs move for an order:
(1) conditionally permitting them to proceed as a collective
action pursuant to 29 U.S.C. section 216(b) on behalf of:
"all current and former non-exempt salaried and hourly
employees who were employed by Defendant on or after
October 5, 2017;"
(2) compelling defendant to furnish the names, last known
physical addresses, last known email addresses, and last
known telephone numbers of those individuals in the
collection action; and
(3) authorizing the Plaintiffs to circulate a Notice of
Pendency and Consent to Join Form to all individuals who
are similarly situated in this action.
The Defendant is a 501(c)(3) not-for-profit organization that
provides programs, services, and support for people with
intellectual and developmental disabilities, and their families.
The Defendant employs over 4,000 people across eight departments:
Educational Services, Adult Day Services, Camping and Recreational
Services, Employment and Business Services, Residential Services,
In-Home Services, Family and Clinical Services, and Administration.
The Plaintiff Onate was a Medicaid Services Coordinator for
Defendant and was considered a salaried employee. Between September
20, 2021 and January 4, 2022, eight other former employees of
Defendant opted into the class and became party plaintiffs.
Judge Willis recommends that Plaintiffs' motion be granted with
respect to all Employees except those in the Home Health
Department.
A copy of the Court's recommendation dated Jan. 5, 2022 is
available from PacerMonitor.com at https://bit.ly/3WRalzG at no
extra charge.[CC]
ALLSTATE LIFE: Hearing on Class Status Bid Set for March 8
----------------------------------------------------------
In the class action lawsuit captioned as SUSAN L. HOLLAND-HEWITT,
v. ALLSTATE LIFE INSURANCE COMPANY, Case No. 1:20-cv-00652-ADA-SAB
(E.D. Cal.), the Hon. Judge Stanley A. Boone entered an order
continuing hearing on the Plaintiff's motion for class
certification as follows:
-- The opposition to the motion to January 27, 2023
certify class shall be filed
no later than:
-- The Plaintiff's reply briefing February 17, 2023
shall be filed no later than:
-- The hearing on Plaintiff's motion March 8, 2023
to certify class is continued
The Plaintiff initiated this action on May 8, 2020. On November 14,
2022, the Plaintiff filed a motion to certify class, which is
currently set for hearing on February 22, 2023.
On January 4, 2023, the parties filed a stipulated request to
extend the briefing deadlines 24 Plaintiff's motion for class
certification. This is the parties' second stipulated request to
extend the briefing deadlines.
The parties proffer a brief extension is warranted because lead
counsel for Allstate recently because ill with COVID-19,
which has limited counsel's ability and time to draft the
oppositional brief. The Court finds good cause exists to approve
the stipulated request in this matter. However, the parties are
cautioned that the Court is disinclined to grant further extensions
on this briefing schedule, absent a strong showing of good cause.
Further, in light of the new briefing deadlines, the Court shall
also continue the February 22, 2023 hearing on Plaintiff's motion
for class certification.
A copy of the Court's order dated Jan. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3IxH2Oa at no extra charge.[CC]
AMAZON.COM SERVICES: Lites Must Reply to Opposition by Jan. 25
--------------------------------------------------------------
In the class action lawsuit captioned as Lites v. Amazon.com
Services, Inc., Case No. 1:22-cv-20587 (S.D. Fla.), the Hon. Judge
Jose E. Martinez entered an order that:
-- The Plaintiff shall reply to Defendant's Opposition to
Plaintiff's Motion for Class Certification on or before
January 25, 2023.
The suit alleges violation of the Employee Retirement Income
Security Act of 1974 involving Employee Benefits.
Amazon.com is an American multinational technology company focusing
on e-commerce, cloud computing, online advertising, digital
streaming, and artificial intelligence.[CC]
AVANTUS LLC: Martinez Wins Bid to Certify Redefined Class
---------------------------------------------------------
In the class action lawsuit captioned as MARVEL MARTINEZ, v.
AVANTUS, LLC, ET AL., Case No. 3:20-cv-01772-JCH (D. Conn.), the
Hon. Judge Janet C. Hall entered a ruling on motion to certify
class as follows:
-- The plaintiff's Motion for Class Certification is granted
as to the redefined class.
-- The court also grants plaintiff's Motion to Seal Portions
of Reply Memorandum and Exhibit B. Consistent with the
Scheduling Order.
The Court said, "The defendant contests only the manageability
prong of the superiority requirement. However, their challenge is
rooted in the same argument about individualized issues with
determining whether absent class members have Article III standing
that the court has already rebuffed."
Additionally, the court can discern no reason why a putative class
member would have an individual interest in controlling the
litigation. Nor is the court aware of any similar suit that has
already been initiated by an absent member of the class or any
reason why Connecticut would be an undesirable forum for this case.
Ultimately, proceeding as a class action "would achieve economies
of time, effort, and expense, and promote uniformity of decision as
to persons similarly situated, without sacrificing procedural
fairness or bringing about undesirable results."
The Plaintiff Martinez brings this putative class action against
Avantus, LLC and Xactus, LLC 1 , which is a successor in interest
to certain Avantus assets, for alleged violations of section
1681e(b) of the Fair Credit Reporting Act ("FCRA"), section 1681 of
title 15, et seq., of the U.S. Code. Martinez's lawsuit alleges
that Avantus willfully failed to ensure maximum possible accuracy
of its credit reports, leading to the plaintiff being wrongly
identified as an international drug trafficker who is prohibited
from conducting business in the United States.
The plaintiff seeks for class certification, in which they propose
the following class:
"All persons residing in the United States and its
Territories about whom Defendants sold a consumer report to a
third party that included any OFAC record using its
proprietary UltraAMPS OFAC product, during the period
beginning July 6, 2020, and continuing through 30 days before
the date of notice to the class."
Avantus is a consumer reporting agency.
A copy of the Court's order dated Jan. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3GIr9SH at no extra charge.[CC]
BHS MANAGEMENT: Court Modifies Case Management Order in Coviello
----------------------------------------------------------------
In the class action lawsuit captioned as Coviello, et al., v. BHS
Management Services, Inc., et al., Case No. 3:20-cv-30198 (D.
Mass.), the Hon. Judge Mark G. Mastroianni entered an order
modifying case management order:
-- The Plaintiffs' class certification February 23, 2023
motion shall be filed by:
-- The Defendants opposition due by: March 27, 2023
The suit alleges violation of the Employee Retirement Income
Security Act (ERISA) involving employee benefits.[CC]
BIG CITY SPORTSWEAR: Feliz Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Big City Sportswear
Inc. The case is styled as Roberta Feliz, individually, and on
behalf of all others similarly situated v. Big City Sportswear
Inc., Case No. 1:23-cv-00092 (S.D.N.Y., Jan. 5, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Big City Sportswear Inc. -- https://bigcitysportswear.com/ -- is a
custom T-shirt store in New York State.[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
BOWDEN RESTAURANTS: Warren Files FLSA Suit in W.D. Arkansas
-----------------------------------------------------------
A class action lawsuit has been filed against Bowden Restaurants,
LLC, et al. The case is styled as Nichole Warren, Alexis Andrews,
each individually and on behalf of all others similarly situated v.
Bowden Restaurants, LLC, Larry Bowden, Case No. 5:23-cv-05004-TLB
(W.D. Ark., Jan. 5, 2023).
The lawsuit is brought over alleged violation of the Fair Labor
Standards Act.
Bowden Restaurants is a company that operates in the Restaurants
industry.[BN]
The Plaintiffs are represented by:
Josh Sanford, Esq.
SANFORD LAW FIRM
10800 Financial Centre Pkwy, Suite 510
Little Rock, AR 72211
Phone: (501) 221-0088
Fax: (888) 787-2040
Email: josh@sanfordlawfirm.com
BROOKLYN UNION: RJC Sues Over Inaccurate Tax-Cost Surcharges
------------------------------------------------------------
Riverdale Jewish Center, United Methodist Church Of Westmoreland
New York, Korean Methodist Church & Institute, Mayin Tohar,
Congregation Bais Yaakov Nechamia D'satmar, Assembly Of Prayer
Baptist Church, and Grace Bible Church, on behalf of themselves and
all others similarly situated v. THE BROOKLYN UNION GAS COMPANY
d/b/a NATIONAL GRID, NIAGARA MOHAWK POWER CORPORATION d/b/a
NATIONAL GRID, NEW YORK STATE ELECTRIC & GAS CORPORATION, LONG
ISLAND POWER AUTHORITY, KEYSPAN GAS EAST CORPORATION d/b/a NATIONAL
GRID, CENTRAL HUDSON GAS & ELECTRIC CORPORATION, and CONSOLIDATED
EDISON COMPANY OF NEW YORK, INC., Case No. 650048/2023 (N.Y. Sup.
Ct., New York Cty., Jan. 4, 2023), is brought against the
Defendants who have engaged in deceptive conduct by collecting and
sending bills containing inaccurate tax-cost surcharges to
ratepayers protected by Section 76 of the New York Public Service
Law.
Section 76 provides that utilities cannot "charge, demand, collect
or receive" from certain religious organizations, mental-health
facilities, and veterans' organizations "a rate greater than the
rates or charges charged, demanded, collected or received from
domestic consumers receiving single-phase service within the same
village, town or municipality." In accordance with Section 76,
qualified ratepayers ("Section 76 ratepayers") may be billed at a
residential rate even though they do not typically meet utility
companies' definitions of a residential or domestic customer and
are generally classified as nonresidential or commercial
customers.
In New York, utility companies such as the Defendants must pay a
gross receipts tax ("GRT") to the State of New York. Local
governments may also assess a GRT to utility companies. The
Defendants recoup from their customers both their GRT payments and
certain other tax charges they may incur by adding a surcharge to
customers' monthly bills ("tax-cost surcharge"). This surcharge
collected from customers, while not a tax itself, reflects the
amount that the Defendants owe in various government taxes. In
other words, the Defendants independently impose a tax-cost
surcharge on their customers connected to the amount of the tax
paid by them to state or local governments. Typically, the tax-cost
surcharge imposed by utility companies is calculated as a
percentage of the customer's delivery charges for a billing period
and varies depending on location and whether the customer is
residential or nonresidential.
When the Defendants bill Section 76 ratepayers, they apply to those
ratepayers' bills the higher tax-cost surcharge percentage reserved
for residential delivery even though such customers are not
residential customers under the Defendants' tariffs. Because the
Plaintiffs are not residential customers, their bills should be
subject to the nonresidential surcharge percentage. Charging
Section 76 customers a tax-cost surcharge using the residential
percentage constitutes a violation of the Public Service Law as
well as a breach of the parties' contractual agreements and/or the
implied covenant of good faith and fair dealing.
The Defendants also engage in deceptive conduct concerning certain
Section 76 ratepayers by misrepresenting the amount these Section
76 ratepayers owe in tax-cost surcharges. By sending an inaccurate
bill and imposing excessive surcharges, the Defendants engage in
deceptive conduct that causes reasonable Section 76 ratepayers, who
mistakenly believe that their bills are accurate, to pay more than
what is owed. The Defendants' actions have harmed the Plaintiffs.
The Plaintiffs paid the inflated tax-cost surcharge assessed due to
the Defendants' violations, breaches, and inaccurate and deceptive
billing practices. The Plaintiffs' overpayment of the excessive
billing constitutes an economic injury, says the complaint.
The Plaintiffs receive electricity and/or gas services from
Defendants and qualify as Section 76 ratepayers. Plaintiffs pay
residential rates for services, but they are nonresidential
customers. Nonresidential customers are sometimes referred to as
"commercial" customers.
The Defendants are providers of electricity and/or gas services to
various parts of New York State.[BN]
The Plaintiff is represented by:
Shawn Rabin, Esq.
Stephen Shackelford, Jr., Esq.
Geng Chen, Esq.
Komal Patel, Esq.
SUSMAN GODFREY L.L.P.
1301 Avenue of the Americas, 32nd Floor
New York, NY 10019
Phone: (212) 336-8330
Fax: (212) 336-8340
Email: srabin@susmangodfrey.com
sshackelford@susmangodfrey.com
gchen@susmangodfrey.com
kpatel@susmangodfrey.com
- and -
Michael Steifman, Esq.
Steven Knowlton, Esq.
Fran Rudich, Esq.
STEIFMAN L.L.P.
292 Montauk Highway
Southampton, NY 11968
Phone: (718) 645-4100
Fax: (212) 870-6150
Email: ms@steifmanlaw.com
sknowlton@steifmanlaw.com
frudichmarks@steifmanlaw.com
CAL GASOLINE: Parties Seek to Modify Class Certification Briefing
-----------------------------------------------------------------
In the class action lawsuit RE CALIFORNIA GASOLINE SPOT MARKET
ANTITRUST LITIGATION, Case No. 3:20-cv-03131-JSC (N.D. Cal.), the
parties request that the Court modify the sealing procedures under
Local Rule 79-5 for the purposes of class certification briefing as
follows:
-- The parties shall conditionally file their class
certification motion, opposition, reply, and all supporting
materials that contain information designated as
confidential by any party or nonparty ("Confidential Class
Certification Material") under seal.
-- At the time of filing, the parties shall not be required to
file redacted versions of any Confidential Class
Certification Material except for redacted versions of the
motion, opposition, and reply.
A copy of the Parties' motion dated Jan. 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3WOYQIZ at no extra charge.[CC]
The Plaintiff is represented by:
Michael P. Lehmann, Esq.
Christopher L. Lebsock, Esq.
Samantha J. Stein, Esq.
Kyle G. Bates, Esq.
Tae Kim, Esq.
Samantha Derksen, Esq.
HAUSFELD LLP
600 Montgomery Street, Suite 3200
San Francisco, CA 94111
Telephone: (415) 633-1908
Facsimile: (415) 358-4980
E-mail: mlehmann@hausfeld.com
clebsock@hausfeld.com
sstein@hausfeld.com
kbates@hausfeld.com
tkim@hausfeld.com
sderksen@hausfeld.com
- and -
Dena C. Sharp, Esq.
Scott M. Grzenczyk, Esq.
Kyle P. Quackenbush, Esq.
Mikaela M. Bock
GIRARD SHARP LLP
601 California Street, Suite 1400
San Francisco, CA 94108
Telephone: (415) 981-4800
Facsimile: (415) 981-4846
E-mail: dsharp@girardsharp.com
scottg@girardsharp.com
kquackenbush@girardsharp.com
mbock@girardsharp.com
The Defendants are represented by:
Michael E. Martinez, Esq.
Lauren Norris Donahue, Esq.
Clifford C. Histed, Esq.
Nicole C. Mueller, Esq.
Brian J. Smith, Esq.
John E. Susoreny, Esq.
K&L GATES LLP
70 W. Madison St., Suite 3300
Chicago, IL 60602
Telephone: (312) 372-1121
Facsimile: (312) 827-800
E-mail: michael.martinez@klgates.com
lauren.donahue@klgates.com
clifford.histed@klgates.com
Nicole.mueller@klgates.com
brian.j.smith@klgates.com
john.susoreny@klgates.com
- and -
Jeffrey M. Davidson, Esq.
Phillip Warren, Esq.
Amy S. Heath, Esq.
John S. Playforth, Esq.
Carol Szurkowski Weiland, Esq.
Jeffrey Cao, Esq.
Lori Parcel Taubman, Esq.
COVINGTON & BURLING LLP
Salesforce Tower
415 Mission Street, Suite 5400
San Francisco, CA 94105-2533
Telephone: (415) 591-6000
Facsimile: (415) 591-6091
E-mail: jdavidson@cov.com
pwarren@cov.com
jli@cov.com
jplayforth@cov.com
cweiland@cov.com
jcao@cov.com
- and -
Neal Manne, Esq.
Alex Kaplan, Esq.
Michael Craig Kelso, Esq.
Amanda K. Bonn, Esq.
Eliza Finley, Esq.
Genevieve Vose Wallace
SUSMAN GODFREY LLP
1000 Louisiana, Suite 5100
Houston, TX 77002-5096
Telephone: (713) 651-9366
Facsimile: (713) 654-6666
E-mail: nmanne@susmangodfrey.com
akaplan@susmangodfrey.com
mkelso@susmangodfrey.com
abonn@susmangodfrey.com
efinley@susmangodfrey.com
gwallace@susmangodfrey.com
- and -
John B. Quinn, Esq.
Steven G. Madison, Esq.
Shon Morgan, Esq.
John M. Potter, Esq.
Justin Reinheimer, Esq.
Christine W. Chen, Esq.
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
865 South Figueroa Street, 10th Floor
San Francisco, CA 94111
Telephone: (213) 443-3000
Facsimile: (213) 443-3100
E-mail: johnquinn@quinnemanuel.com
stevemadison@quinnemanuel.com
shonmorgan@quinnemanuel.com
johnpotter@quinnemanuel.com
justinreinheimer@quinnemanuel.com
christinechen@quinnemanuel.com
CALIFORNIA: Parties Seek to Modify Sealing Procedures
------------------------------------------------------
In the class action lawsuit RE CALIFORNIA GASOLINE SPOT MARKET
ANTITRUST LITIGATION, Case No. 3:20-cv-03131-JSC (N.D. Cal.), the
parties request that the Court modify the sealing procedures under
Local Rule 79-5 for the purposes of class certification briefing as
follows:
1. The parties shall conditionally file their class
certification motion, opposition, reply, and all
supporting materials that contain information designated
as confidential by any party or nonparty ("Confidential
Class Certification Material") under seal.
2. At the time of filing, the parties shall not be required
to file redacted versions of any Confidential Class
Certification Material except for redacted versions of the
motion, opposition, and reply.
3. Within 14 days of the Plaintiffs' class certification
reply on June 5, 2023, the parties shall:
a. File a joint motion to seal that identifies (1) the
portions of the Confidential Class 12 Certification
Material designated as confidential by any party or
third party and (2) the party or third party that
designated each portion of the Confidential Class
Certification Material as confidential;
b. Serve on each third party that has designated any
Confidential Class Certification Material as
confidential: (1) this order, (2) the motion, and (3)
versions of Confidential Class Certification Material
citing materials the third party has designated as
confidential where information designated as
confidential by any other party or third party has been
redacted;
c. File any statements in support of sealing the
Confidential Class Certification Material that the
parties have designated as confidential. Such
statements shall comply with 22 Local Rule 79-5(c).
A copy of the Court's order dated Jan. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3CuPvhs at no extra charge.[CC]
The Plaintiff is represented by:
Michael P. Lehmann, Esq.
Christopher L. Lebsock, Esq.
Samantha J. Stein, Esq.
Kyle G. Bates, Esq.
Tae Kim, Esq.
Samantha Derksen, Esq.
HAUSFELD LLP
600 Montgomery Street, Suite 3200
San Francisco, CA 94111
Telephone: (415) 633-1908
Facsimile: (415) 358-4980
E-mail: mlehmann@hausfeld.com
clebsock@hausfeld.com
sstein@hausfeld.com
kbates@hausfeld.com
tkim@hausfeld.com
sderksen@hausfeld.com
- and -
Dena C. Sharp, Esq.
Scott M. Grzenczyk, Esq.
Kyle P. Quackenbush, Esq.
Mikaela M. Bock, Esq.
GIRARD SHARP LLP
601 California Street, Suite 1400
San Francisco, CA 94108
Telephone: (415) 981-4800
Facsimile: (415) 981-4846
E-mail: dsharp@girardsharp.com
scottg@girardsharp.com
kquackenbush@girardsharp.com
mbock@girardsharp.com
The Defendant is represented by:
Michael E. Martinez, Esq.
Lauren Norris Donahue, Esq.
Clifford C. Histed, Esq.
Nicole C. Mueller, Esq.
Brian J. Smith, Esq.
John E. Susoreny, Esq.
K&L GATES LLP
70 W. Madison St., Suite 3300
Chicago, IL 60602
Telephone: (312) 372-1121
Facsimile: (312) 827-800
E-mail: michael.martinez@klgates.com
lauren.donahue@klgates.com
clifford.histed@klgates.com
Nicole.mueller@klgates.com
brian.j.smith@klgates.com
john.susoreny@klgates.com
- and -
Jeffrey M. Davidson, Esq.
Phillip Warren, Esq.
Amy S. Heath, Esq.
John S. Playforth, Esq.
Carol Szurkowski Weiland, Esq.
Jeffrey Cao, Esq.
Lori Parcel Taubman, Esq.
COVINGTON & BURLING LLP
Salesforce Tower
415 Mission Street, Suite 5400
San Francisco, CA 94105-2533
Telephone: (415) 591-6000
Facsimile: (415) 591-6091
E-mail: jdavidson@cov.com
pwarren@cov.com
jli@cov.com
jplayforth@cov.com
cweiland@cov.com
jcao@cov.com
- and -
Genevieve Vose Wallace, Esq.
SUSMAN GODFREY LLP
1201 Third Avenue, Suite 3800
Seattle, WA 98101-3000
Telephone: (206) 516-3880
Facsimile: (206) 516-3883
E-mail: gwallace@susmangodfrey.com
- and -
John B. Quinn, Esq.
Steven G. Madison, Esq.
Shon Morgan, Esq.
John M. Potter, Esq.
Justin Reinheimer, Esq.
Christine W. Chen, Esq.
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
865 South Figueroa Street, 10th Floor
San Francisco, CA 94111
Telephone: (213) 443-3000
Facsimile: (213) 443-3100
E-mail: johnquinn@quinnemanuel.com
stevemadison@quinnemanuel.com
shonmorgan@quinnemanuel.com
johnpotter@quinnemanuel.com
justinreinheimer@quinnemanuel.com
christinechen@quinnemanuel.com
CALIMIRA LLC: Toro Sues Over Unlawful Tip Credit
------------------------------------------------
Ava Toro, on behalf of herself and all others similarly situated v.
CALIMIRA, LLC, d/b/a RUSTY BUCKET RESTAURANT AND TAVERN, Case No.
2:23-cv-00028-MHW-KAJ (S.D. Ohio, Jan. 5, 2023), is brought because
of the Defendant's practices and policies of violating the tip
credit that the Fair Labor Standards Act ("FLSA") provides,
underpaying employees at the federally-mandated minimum wage rate,
and failing to pay Plaintiff and all similarly-situated employees
their earned minimum wages under the law.
The Defendant pays its tipped employees, including servers and
bartenders, below the minimum wage rate by taking advantage of the
tip-credit provisions of the FLSA. Under the tip-credit provisions,
an employer of tipped employees may, under certain circumstances,
pay those employees less than the minimum wage rate by taking a
"tip credit" against the employer's minimum wage obligations from
the tips received from customers.
The Defendant violated the FLSA by requiring Plaintiff and
similarly situated employees to perform improper types, and
excessive amounts, of non-tipped work, including but not limited to
cleaning ledges; cleaning the kitchen; cleaning walls and items
hanging on the walls; cleaning window blinds, windows and window
sills; cleaning the bathrooms; and/or washing trays, appliances,
silverware, dishes and/or glasses. The Defendant further violated
the FLSA by requiring the Plaintiff and similarly-situated
employees to perform non-tipped side work in excess of 20% of the
time spent working in the week. By violating the FLSA, Defendant
has lost the ability to use the tip credit and therefore must
compensate Plaintiff and all similarly situated employees and the
full minimum wage rate, unencumbered by the tip credit, and for all
hours worked, says the complaint.
The Plaintiff worked for the Defendant at the Rusty Bucket
Restaurant and Tavern in Joliet, Illinois, from March 2015 though
July 2020 as a server.
The Defendant operates a chain of restaurants under the trade name
Rusty Bucket Restaurant and Tavern throughout the United
States.[BN]
The Plaintiff is represented by:
Alanna Klein Fischer, Esq.
Anthony J. Lazzaro, Esq.
Lori M. Griffin, Esq.
Matthew S. Grimsley, Esq.
THE LAZZARO LAW FIRM, LLC
The Heritage Bldg., Suite 250
34555 Chagrin Boulevard
Moreland Hills, Ohio 44022
Phone: 216-696-5000
Facsimile: 216-696-7005
Email: alanna@lazzarolawfirm.com
anthony@lazzarolawfirm.com
lori@lazzarolawfirm.com
matthew@lazzarolawfirm.com
CANTEX CONTINUING: Wallace Bid to Authorize Notice Partly Granted
-----------------------------------------------------------------
In the class action lawsuit captioned as ROBERT WALLACE, KIPP
CLAYTON, DAWN M. RILEY, DEBRA LOWERY, v. CANTEX CONTINUING CARE
NETWORK LLC, Case No. 5:22-cv-00187-DAE (w.D. Tex.), the Hon. Judge
Elizabeth S. Chestney entered an order granting in part and denying
in part the Plaintiffs' opposed motion to authorize notice pursuant
to 29 U.S.C. section 216(b) as follows:
-- The Plaintiffs may send notice to the following group of
similarly situated employees of the Defendant:
"All current and former therapists who have worked at
Sorrento Skilled Nursing Facility in San Antonio, Texas,
at any time since September 2, 2019." Therapists" is
defined to include both therapists (i.e., physical
therapists, occupational therapists, and speech language
pathologists) and therapy assistants (i.e., physical
therapy assistants and occupational therapy assistants).
-- The Defendant shall produce a list in Excel format
containing the names, job titles, and last known mailing
addresses, email addresses, and telephone numbers for all
potential plaintiffs within seven days of this Order.
-- The Plaintiffs' proposed notice and consent form should be
modified as set forth in this Order.
-- The Plaintiffs' counsel shall send the proposed notice and
consent form (as modified by this Order) to potential
plaintiffs via U.S. Mail (along with a business reply
envelope), email, and text message.
-- Potential plaintiffs shall have 60 days to submit a consent
form to join this action and the timeliness of any consent
form shall be determined by the postmark (for those
returned by U.S. mail) or the date of submission for those
returned by electronic means.
-- The Plaintiffs' counsel shall resend the same notice via
text and e-mail half-way through the notice period as a
reminder to those who have not joined.
-- The Plaintiffs' counsel shall file with the Court a status
report within seven days of sending the initial notice to
the potential plaintiffs advising the Court of the date on
which the notice was sent and the deadline for potential
plaintiffs to submit a consent form.
The Plaintiffs' Opposed Motion for Equitable Tolling of the Statute
of Limitations of Potential Plaintiffs is DENIED.
The Plaintiffs have not satisfied their burden, and the Court
declines to exercise its discretion to equitably toll the statute
of limitations of future opt-in plaintiffs in this suit.
The record demonstrates that Plaintiffs filed this action on
February 28, 2022, and the Scheduling Order imposed a deadline of
September 2, 2022, to file their motion for notice. Due to
disagreements over the exchange of discovery and the need for
supplemental production, Plaintiffs ultimately jointly stipulated
to an extension of this deadline and filed their motion on November
4, 2022, two months later.
In summary, in light of the lack of evidence of consistent practice
regarding off-the-clock work throughout Defendant's facilities, the
Court will issue notice only to those therapists staffed at the
Sorrento facility. Plaintiffs have satisfied their burden to
demonstrate that all therapists at Sorrento were subject to the
same facility-based productivity metric, in addition to the
individual therapist's productivity benchmarks; that all therapists
at Sorrento have the same supervisors and
chain of command; and that all therapists at Sorrento are subject
to the same facility conditions, which dictate whether or not
concurrent or group treatment is available to increase
productivity.
The Court finds that the provision of notice via U.S. mail, e-mail,
and text message is warranted.
A copy of the Court's order dated Jan. 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3IrV4Rd at no extra charge.[CC]
CENTER FOR SCIENCE: Case Management Order Entered in Henderson
--------------------------------------------------------------
In the class action lawsuit captioned as DUANE HENDERSON and LINDA
NUNN, v. CENTER FOR SCIENCE IN THE PUBLIC INTEREST, Case No.
1:22-cv-00856-HYJ-RSK (W.D. Mich.), the Hon. Judge Hala Y. Jarbou
entered a case management order as follows:
-- Motions to Join Parties or March 16, 2023
Amend Pleadings:
-- Rule 26(a)(1) Disclosures
(including lay witnesses)
Plaintiff: February 9, 2023
Defendant: February 9, 2023
-- ADR Private Mediation on: January 10, 2023
-- Motion for Class Certification September 29, 2023
-- Disclose Name, Address, Area
of Expertise and a short
summary of expected testimony
of Expert Witnesses
(Rule 26(a)(2)(A))
Party with the Burden of Proof: September 11, 2023
Responding Party: October 12, 2023
-- Disclosure of Expert Reports
(Rule 26(a)(2)(B))
Party with the Burden of Proof: October 12, 2023
Responding Party: November 11, 2023
-- Completion of Discovery February 15, 2024
-- Dispositive Motions March 29, 2024
Center for Science is a Washington, D.C.-based non-profit watchdog
and consumer advocacy group that advocates for safer and healthier
food.
A copy of the Court's order dated Jan. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3ilGMHs at no extra charge.[CC]
CHENEY BROTHERS: More Time to Submit Witness Summaries Sought
-------------------------------------------------------------
In the class action lawsuit captioned as Salgiobria Enterprises,
LLC, a Florida limited liability company, on behalf of itself and
those similarly situated, v. Cheney Brothers, Inc., a Florida
corporation, Case No. 9:21-cv-81808-AMC (S.D. Fla.), the Plaintiff
asks the Court to issue an order extending the deadline for the
parties to exchange expert witness summaries or reports on issues
of class certification to February 3, 2023, and setting the
rebuttal expert report deadline as February 17, 2023.
The Plaintiff filed its Amended Complaint on October 18, 2021, in
the United States District Court Southern District of Florida. On
November 15, 2021, Defendant Cheney Brothers filed a Motion to
Dismiss the Amended Complaint.
The Plaintiff consented to a stay of discovery pending the
disposition of Defendant's Motion to Dismiss. On August 16, 2022,
the Court denied in part and granted in part Defendant's Motion to
Dismiss, holding that Plaintiff's breach of contract claims were
adequately plead and could proceed.
On September 6, 2022, the Court entered an Order Setting Trial,
Setting Pre-Trial Deadlines, and Referring Certain Matters to the
Magistrate Judge. One week later, the Plaintiff served its
discovery requests on Defendant on September 13, 2022.
On September 26, 2022, Defendant requested a 30-day extension to
respond to the discovery requests -- from October 13, 2022 to
November 13, 2022. The Plaintiff was amenable to the extension
provided that Defendant would agree to extend the expert disclosure
deadline.
A copy of the Plaintiff's motion dated Jan. 4, 2022 is available
from PacerMonitor.com at https://bit.ly/3XbETvQ at no extra
charge.[CC]
The Plaintiff is represented by:
Nathan C. Zipperian, Esq.
James Shah, Esq.
MILLER SHAH LLP
1625 N. Commerce Parkway, Suite 320
Ft. Lauderdale, FL 33326
Telephone: (866) 540-5505
E-mail: nczipperian@millershah.com
jcshah@millershah.com
- and -
Robert K. Shelquist, Esq.
Rebecca A. Peterson, Esq.
Craig S. Davis, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Ave. S., Suite 2200
Minneapolis, MN 55401
Telephone: (612) 339-6900
E-mail: rkshelquist@locklaw.com
rapeterson@locklaw.com
csdavis@locklaw.com
- and -
D. Michael Campbell, Esq.
CAMPBELL LAW
PO Box 24358
Lakeland, FL 33802-4358
Telephone: (863) 227-4315
E-mail: dmcampbell@campbelllaw.com
CHICWISH LLC: Feliz Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Chicwish, LLC. The
case is styled as Roberta Feliz, individually, and on behalf of all
others similarly situated v. Chicwish, LLC, Case No. 1:23-cv-00093
(S.D.N.Y., Jan. 5, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Chicwish LLC -- https://www.chicwish.com/ -- is a retail
company.[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
COMMUNITY LOAN: Lesky Sues Over Failure to Safeguard PII
--------------------------------------------------------
Ronald Lesky, individually and on behalf of all others similarly
situated v. COMMUNITY LOAN SERVICING, LLC, Case No.
1:23-cv-20038-RNS (S.D. Fla., Jan. 5, 2023), is brought for damages
with respect to CLS for its failure to exercise reasonable care in
securing and safeguarding its client's sensitive
information--including names, Social Security numbers ("SSN"), and
financial account information (collectively, "PII" or "Private
Information").
This class action is brought on behalf of customers who used CLS's
services and had their sensitive PII accessed by unauthorized
parties because of a lapse in network security from October 27,
2021 through December 7, 2021, inclusive (the "Data Breach"). The
Data Breach affected customers who use CLS's services in multiple
states. CLS reported to Plaintiff that information compromised in
the Data Breach included his PII.
The Plaintiff was not notified of the Data Breach until on or
around October 17, 2022, more than one year after his information,
which included his SSN, was first accessed. As a result of the Data
Breach, the Plaintiff and Class members will experience, or have
already experienced, various types of misuse of their PII in the
coming years, including, but not limited to, unauthorized credit
card charges, unauthorized access to email accounts, and other
fraudulent use of their financial information.
There has been no assurance offered from CLS that all personal data
or copies of data have been recovered or destroyed. CLS offered
Kroll identity monitoring, which does not guarantee the security of
the Plaintiff's information. However, in order to mitigate further
harm, the Plaintiff has signed up for Kroll identity monitoring
offered by CLS. Accordingly, Plaintiff asserts claims for
negligence, breach of contract, breach of implied contract, breach
of fiduciary duty, bailment, unjust enrichment, breach of
confidence, and violation of the New Jersey and Florida consumer
protection statutes, and declaratory and injunctive relief, says
the complaint.
The Plaintiff received a home loan from NJ Lenders Corp.
Loan Servicing, LLC is a mortgage loan servicing and loan
management limited liability company formed in Delaware that
operates nationally, including in New Jersey.[BN]
The Plaintiff is represented by:
Stuart A. Davidson, Esq.
Bradley Beall, Esq.
Nicolle Brito, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
120 East Palmetto Park Rd., Suite 500
Boca Raton, FL 33432
Phone: 561/750-3000
Fax: 561/750-3364
Email: sdavidson@rgrdlaw.com
bbeall@rgrdlaw.com
nbrito@rgrdlaw.com
- and -
Gary S. Graifman, Esq.
Melissa R. Emert, Esq.
KANTROWITZ GOLDHAMER & GRAIFMAN, P.C.
135 Chestnut Ridge Road, Suite 200
Montvale, NJ 07645
Phone: 201/391-7000
Fax: 201/307-1086
Email: ggraifman@kgglaw.com
memert@kgglaw.com
COUNTRY MUTUAL INSURANCE: Sudholt Suit Removed to S.D. Illinois
---------------------------------------------------------------
The case styled as Angela M. Sudholt, Kyhl A. Sudholt, Kara Jones,
Benjamin Jones, individually and on behalf of all others similarly
situated v. Country Mutual Insurance Company, James Melvin Jacobs,
Richard Louis Guebert, Jr., Miles Thorne Kilcoin, Robert Harold
Bateman, Philip Tim Nelson, Brian Keith Duncan, Richard Kenneth
Carroll, Leonard Bradley Daugherty, Robert Edwin Klemm, John Larry
Miller, Gary Allen, Speckhart, Mark Roger Tuttle, Kenneth Charles
Cripe, Tamara Dee, Halterman, Steven Patrick Koeller, Keith Randall
Mussman, Steven Ray Stallman, Earl Harmon Williams, Larry William
Dallas, Robert John Fecht, Jeffrey Robert Kirwan, Don Eugene Meyer,
Mark Frederick, Reichert, Kenton Lloyd Thomas, Dennis Wayne Green,
Steven William Fourez, David Lee Serven, Bradley Allen Temple,
Randy Joseph Poskin, Michele Renee Aavang, David Lee Meiss, Chad
Kenneth Schutz, Steven Gene Hosselton, Troy Arnold Uphoff,
Christopher Bruce Hausman, Dale Bryan Hadden, Wayne Roy Anderson,
Scott Francis Halpin, Dennis Lee Huges, Robert Henry Gehrke, James
Alfred Anderson, Charles Michael Cawley, Darryl Robert Brinkmann,
J.C. Pool, Terry Allen Pope, Case No. 22-LA-0970 was removed from
the Twentieth Judicial Circuit Court, St. Clair County, to the U.S.
District Court for the Southern District of Illinois on Dec. 22,
2022.
The District Court Clerk assigned Case No. 3:22-cv-03064-RJD to the
proceeding.
The nature of suit is stated as Insurance for Insurance Contract.
Country Financial -- https://www.countryfinancial.com/ -- is a
group of US insurance and financial services companies with
customers in 19 states.[BN]
The Plaintiffs are represented by:
David I. Cates, Esq.
CATES LAW FIRM, LLC
216 West Pointe Drive, Suite A
Swansea, IL 62226
Phone: (618) 277-3644
Fax: (618) 277-7882
Email: dcates@cateslaw.com
The Defendant is represented by:
Chanda M. Feldkamp, Esq.
William James Kelly, III, Esq.
KELLY LAW PARTNERS, LLC
501 South Cherry Street, Suite 1100
Denver, CO 80246
Phone: (720) 236-1800
Fax: (720) 236-1799
Email: cfeldkamp@kellylawpartners.com
wkelly@kellylawpartners.com
- and -
David G. Lubben, Esq.
DAVIS & CAMPBELL
401 Main Street, Suite 1600
Peoria, IL 61602
Phone: (309) 673-1681
Email: dglubben@dcamplaw.com
- and -
Michael J. Nester, Esq.
DONOVAN ROSE NESTER, P.C.
15 North First Street, Suite A
Belleville, IL 62220
Phone: (618) 212-6500
Fax: (618) 212-6501
Email: mnester@drnpc.com'
DEE MARK: Lorenzo Sues Over Unpaid Overtime & Invalid Tip Credit
----------------------------------------------------------------
Filogonio Bacilio Lorenzo, on behalf of himself and others
similarly situated v. DEE MARK INC., d/b/a AROY DEE THAI, DEE JING
INC., d/b/a KUU RAMEN LIMUPOKE INC., d/b/a KUU RAMEN, PENKAE
POOLSUK, and CHATCHAI HUADWATTANA, Case No. 1:23-cv-00048
(S.D.N.Y., Jan. 4, 2023), is brought pursuant to the Fair Labor
Standards Act and the New York Labor Law to recover from the
Defendants: unpaid overtime, due to an invalid tip credit;
illegally retained surcharges; unreimbursed tools of the trade;
statutory penalties; liquidated damages; and attorney's fees and
costs.
During the Plaintiff's employment, the Defendant compensated him at
rates below the New York State tip credit minimum wage and an
improper overtime rate due to an invalid tip credit. FLSA
Collective the Plaintiffs, and Class Members similarly were paid at
the New York State tip credit minimum wage and an improper overtime
rate due to an invalid tip credit.
With respect to the Plaintiff, FLSA Collective the Plaintiffs, and
Class Members, the Defendants were not entitled to claim any tip
credit allowance under the FLSA or NYLL because the Defendants:
failed to properly provide tip credit notice at hiring and annually
thereafter; claimed tip credit for all hours worked despite having
caused tipped employees to engage in non- tipped duties for hours
exceeding 20% of the total hours worked each workweek; had an
improper tip pool where managers and employees that did not serve
customers were taking tips; illegally retained gratuities through
its managers and employees that did not serve customers; failed to
accurately keep track of daily tips earned and maintain records
thereof, says the complaint.
The Plaintiff was hired by the Defendants to work as a delivery
person for the Defendants' Restaurant Aroy Dee Thai.
The Defendants collectively own and operate 3 restaurants located
in New York City.[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
Phone: 212-465-1180
Fax: 212-465-1181
DELI MANAGEMENT: Extension of Time to File Response OK'd
--------------------------------------------------------
In the class action lawsuit captioned as MOHAMED HISHAM ELTAYEB,
individually and on behalf of similarly situated persons, v. DELI
MANAGEMENT, INC. d/b/a "Jason's Deli", Case No. 4:20-cv-00385-ALM
(E.D. Tex.), the Hon. Judge Amos L. Mazzant entered an order
granting defendant's motion for a seven-day extension of time to
file its response to the Plaintiff's Motion for tolling of Fair
Labor Standards Act (FLSA) statute of limitations and the
Plaintiff's Combined Second Renewed Motion for Notice to Potential
Plaintiffs.
Deli Management owns and operates a chain of restaurants. The
Company provides salad bars, stuffed potatoes, sandwiches,
desserts, meals, and wraps.
A copy of the Court's order dated Jan. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3VXxXkK at no extra charge.[CC]
DOG IS GOOD: Velazquez Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Dog Is Good, LLC. The
case is styled as Bryan Velazquez, on behalf of himself and all
others similarly situated v. Dog Is Good, LLC, Case No.
1:23-cv-00107 (S.D.N.Y., Jan. 5, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Dog Is Good -- https://www.dogisgood.com/ -- offers top selection
of apparel, gifts, accessories and decor for dog lovers.[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
DONSCO INC: Snyder Sues to Recover Unpaid Overtime Wages
--------------------------------------------------------
Ryan Snyder, individually and on behalf of others similarly
situated v. DONSCO, INC., Case No. 1:23-cv-00013-JPW (M.D. Pa.,
Jan. 4, 2023), is brought to recover unpaid overtime wages, unpaid
straight time, liquidated damages, pre- and post-judgment interest,
reasonable attorneys' fees and costs as a result of Defendant's
willful violation of the Fair Labor Standards Act ("FLSA") the
Pennsylvania Minimum Wage Act ("PMWA"), as well as the Pennsylvania
Wage Payment and Collection Law ("WPCL"), and attendant
regulations.
The Plaintiff and the putative FLSA collective and Rule 23 class
members are hourly-paid productions workers employed by Defendant
in the last 3 years, who were deprived of proper wages as a result
of the following unlawful policies maintained by Defendant: failing
to pay hourly-paid production workers for compensable work
performed while clocked in during periods of up to 14 minutes
before and after their scheduled shifts; automatically deducting 30
minutes from production workers' pay each shift for supposed meal
breaks, including shifts in which they did not take bona fide meal
breaks; and failure to include non-base compensation, including but
not limited to attendance bonuses, in the calculation of production
workers' regular rates of pay, resulting in payment for overtime
work at a less than 1.5 times their regular rate of pay.
As a result of these policies, Defendant failed to pay hourly-paid
production workers for all hours worked, including hours worked in
excess of 40 hours in a week, and failed to pay them
time-and-a-half of their regular rate of pay for all hours worked
in excess of 40 hours in a week, in violations of the FLSA, PMWA,
and WPCL, says the complaint.
The Plaintiff was employed by the Defendant as an hourly-paid
production worker from October 2020 to April 2022.
Donsco, Inc. is manufacturer of iron castings that operates
production facilities in Wrightsville and Mt. Joy,
Pennsylvania.[BN]
The Plaintiff is represented by:
Jason T. Brown, Esq.
BROWN, LLC
111 Town Square Place, Suite 400
Jersey City, NJ 07310
Phone: (877) 561-0000
Fax: (855) 582-5297
Email: jtb@jtblawgroup.com
ECOLAB INC: Court Awards $40K in Atty.'s Fees & Costs in Miner Suit
-------------------------------------------------------------------
In the lawsuit entitled DOUG MINER, et al., individually and on
behalf of all others similarly situated, Plaintiffs v. ECOLAB INC.,
Defendant, Case No. CV 17-2313 FMO (JCx) (C.D. Cal.), Judge
Fernando M. Olguin of the U.S. District Court for the Central
District of California issued a judgment awarding Class counsel
$33,375 in attorney's fees and $7,089 in costs.
Pursuant to the Court's Order Re: Final Approval of Class Action
Settlement ("Order"), filed contemporaneously with the filing of
this Judgment, the Court rules that Plaintiff Glenn Payton will be
paid a service payment of $750 and Plaintiff Doug Miner will be
paid a service payment of $2,250 in accordance with the terms of
the Settlement Agreement and this Order.
Class counsel will be paid $33,375 in attorney's fees, and
$7,089.64 in costs in accordance with the terms of the Settlement
Agreement and this Order.
The Claims Administrator, Simpluris, will be paid for its fees and
expenses in accordance with the terms of the Settlement Agreement.
The LWDA will be paid $18,750 pursuant to the Settlement
Agreement.
All class members, who did not validly and timely request
exclusion, have released their claims, as set forth in the
Settlement Agreement, against any of the released parties (as
defined in the Settlement Agreement).
Except as to any class members, who have validly and timely
requested exclusion, this action is dismissed with prejudice, with
all parties to bear their own fees and costs except as set forth
here and in the prior orders of the Court.
A full-text copy of the Court's Judgment dated Dec. 29, 2022, is
available at https://tinyurl.com/y4zy6djh from Leagle.com.
EDIBLE ARRANGEMENTS: Scheduling Order Entered in Gomez
------------------------------------------------------
In the class action lawsuit captioned as MARISSA GOMEZ,
individually and on behalf of all others similarly situated, v.
EDIBLE ARRANGEMENTS, LLC, Case No. 8:22-cv-02690-SCB-TGW (M.D.
Fla.), the Hon. Judge Susan C. Bucklew entered an case management
and scheduling order as follows:
-- Trial
This case is scheduled for a jury trial in Tampa, Florida,
during the July 2024 trial calendar. The trial is estimated
to last 3 days.
-- Pretrial conference
A Pretrial Conference will be held before the Honorable
Susan C. Bucklew, United States District Judge, in --
Courtroom 10B of the Sam M. Gibbons United States
Courthouse, in Tampa, Florida on June 12, 2024, at 8:30
a.m. The parties are directed to meet the pretrial
disclosure requirements and deadlines in Fed. R. Civ. P.
26(a)(3) and to adhere to all requirements in Local Rule
3.06 concerning final pretrial procedures.
The parties must file a JOINT Pretrial Statement no later
than 7 days before the date of the Pretrial Conference.
-- Additional parties and amendments
The parties have until February 17, 2023, to file Third
Party Claims, Motions to Join Parties, and Motions to Amend
Pleadings.
-- Disclosure of expert testimony:
The Plaintiff must disclose the identity of any expert
witnesses and expert reports by September 19, 2023.
The Defendant must disclose the identity of any expert
witnesses and expert reports by October 20, 2023.
The deadline for disclosure of any rebuttal expert
reports is November 17, 2023.
-- Discovery cutoff
All discovery must be completed by the parties on or before
December 22, 2023.
-- Mediation
The parties must participate in court-annexed mediation on
or before December 15, 2023. The parties must file a
stipulation selecting a mediator within 60 days after the
date of this order.
-- Class certification
The deadline for moving for class certification, if
applicable, is January 19, 2024. The deadline for Defendant
to respond to a Motion for Class Certification is February
20, 2024.
-- Daubert motions
Daubert motions must be filed on or before January 26,
2024. Responses thereto must be filed no later than 21 days
after the filing date of the motion.
Edible Arrangements is a U.S.-based franchising business that
specializes in fresh fruit arrangements, combining the concept of a
fruit basket with designs inspired by flower arrangement.
A copy of the Court's order dated Jan. 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3Is4ZpX at no extra charge.[CC]
EDUCATIONAL CREDIT: Lepur FCRA Suit Removed to S.D. California
--------------------------------------------------------------
The case styled as Cynthia Lepur, on behalf of herself, and all
others similarly situated v. Educational Credit Management
Corporation, Case No. 37-02022-00046119-CU-BT-CTL was removed from
the Superior Court of California, County of San Diego, to the U.S.
District Court for the Southern District of California on Jan. 4,
2023.
The District Court Clerk assigned Case No. 3:23-cv-00014-AJB-DDL to
the proceeding.
The nature of suit is stated as Other Contract for the Class Action
Fairness Act of 2005.
Educational Credit Management Corporation -- https://www.ecmc.org/
-- is a United States nonprofit corporation based in Minnesota
operating in the areas of student loan bankruptcy management and
loan collection.[BN]
The Plaintiff is represented by:
Alexis M. Wood, Esq.
Kas L. Gallucci, Esq.
Ronald Marron, Esq.
Law Offices of Ronald A. Marron
651 Arroyo Drive
San Diego, CA 92103
Phone: (619) 696-9006
Fax: (619) 564-6665
Email: alexis@consumersadvocates.com
kas@consumersadvocates.com
ron@consumersadvocates.com
The Defendants are represented by:
David J. Kaminski, Esq.
Martin Schannong, Esq.
CARLSON AND MESSER LLP
5901 West Century Boulevard, Suite 1200
Los Angeles, CA 90045
Phone: (310) 242-2200
Fax: (310) 242-2222
Email: kaminskid@cmtlaw.com
schannongm@cmtlaw.com
ELDER DEPOT INC: Velazquez Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Elder Depot, Inc. The
case is styled as Bryan Velazquez, on behalf of himself and all
others similarly situated v. Elder Depot, Inc., Case No.
1:23-cv-00105 (S.D.N.Y., Jan. 5, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Elder Depot -- https://www.elderdepot.com/ -- offers products for
caregivers of the elderly.[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
FCA U.S. LLC: Crowell Files Suit in D. Delaware
-----------------------------------------------
A class action lawsuit has been filed against FCA U.S. LLC. The
case is styled as Jesse Crowell, on behalf of himself and all
others similarly situated v. FCA U.S. LLC, Case No.
1:23-cv-00013-UNA (D. Del., Jan. 5, 2023).
The nature of suit is stated as Contract Product Liability.
FCA US LLC designs, engineers, manufactures, and sells vehicles.
The Company offers passenger cars, utility vehicles, mini-vans,
trucks and commercial vans, as well as distributes automotive
service parts and accessories.[BN]
The Plaintiffs are represented by:
Peter Bradford deLeeuw, Esq.
DELEEUW LAW LLC
1301 Walnut Green Road
Wilmington, DE 19807
Phone: (302) 274-2180
Email: brad@deleeuwlaw.com
FCA US: Court Grants in Part Nuwer Bid to Certify Class
-------------------------------------------------------
In the class action lawsuit captioned as Nuwer, et al., v. FCA US
LLC, et al., Case No. 0:20-cv-60432 (S.D. Fla.), the Hon. Judge
Raag Singhal entered an order granting in part and denying in part
motion to certify class.
FCA US designs, engineers, manufactures, and sells vehicles.
The suit alleges violation of Magnuson-Moss Warranty Act involving
torts -- motor vehicle product liability.[CC]
FIRSTSERVICE: Reconsideration of Summary Judgment Order Sought
--------------------------------------------------------------
In the class action lawsuit captioned as LOGAN DERNOSHEK, on behalf
of himself and all others similarly situated v. FIRSTSERVICE
RESIDENTIAL, INC.; FIRSTSERVICE RESIDENTIAL CAROLINAS, INC.; and
NEXTLEVEL ASSOCIATION SOLUTIONS, INC. d/b/a HOMEWISEDOCS.COM, Case
No. 1:21-cv-00056-CCE-JLW (M.D.N.C.), the Plaintiff asks the Court
to enter an order reconsidering its summary judgment Order in favor
of FirstService Residential Carolinas, Inc. and Nextlevel
Association Solutions, Inc. d/b/a Homewisedocs.com to correct error
or mistakes of law.
The Plaintiff's Chapter 75 claim "depended on an agency theory
which the Fourth Circuit has since rejected in a very similar
case." Chapter 75 is an inappropriate "vehicle for imposing
liability on an entity for pricing decisions when it has no
statutory duty to charge a reasonable fee."
FirstService is North America's property management leader.
A copy of the Plaintiff's motion dated Jan. 5, 2022 is available
from PacerMonitor.com at https://bit.ly/3iop2ev at no extra
charge.[CC]
The Plaintiff is represented by:
Scott C. Harris, Esq.
Patrick M. Wallace, Esq.
Jeremy R. Williams, Esq.
MILBERG COLEMAN BRYSON
PHILLIPS GROSSMAN
900 W. Morgan Street
Raleigh, NC 27603
Telephone: (919) 600-5000
Facsimile: (919) 600-5035
E-mail: sharris@milberg.com
pwallace@milberg.com
jwilliams@milberg.com
FORT BELVOIR: Completion of Discovery Extended to May 16
--------------------------------------------------------
In the class action lawsuit captioned as JOHN FISCHER, et al. v.
FORT BELVOIR RESIDENTIAL COMMUNITIES LLC, el al., Case No.
1:22-cv-00286-RDA-JFA (E.D. Va.), the Hon. Judge John F. Anderson
entered an order on the parties' joint motion to extend time and
modification of Rule 16(B) scheduling order as follows:
-- The motion is granted and the date for all discovery to be
completed is enlarged to May 16, 2023.
-- The plaintiffs' initial expert disclosures shall be served
by March 6, 2023.
-- The defendants' expert disclosures shall be served by April
6, 2023.
-- The plaintiffs' rebuttal expert disclosures shall be served
by April 21, 2023.
-- The plaintiffs' motion for class certification shall be
filed by May 30, 2023.
-- The defendants' response shall be filed by June 19, 2023.
-- The plaintiffs' reply shall be filed by July 5, 2023.
-- No other dates are modified by the granting of this motion.
-- The hearing on this motion scheduled for January 6, 2023 is
canceled.
A copy of the Court's order dated Jan. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3vLTEts at no extra charge.[CC]
FRANKLIN WIRELESS: Bid for Class Certification in Ali Suit Granted
------------------------------------------------------------------
In the case, MOHAMMED USMAN ALI, individually and on behalf of all
others similarly situated, Plaintiff v. FRANKLIN WIRELESS CORP., OC
KIM, and DAVID BROWN, Defendants, Case No. 3:21-cv-00687-AJB-MSB
(S.D. Cal.), Judge Anthony J. Battaglia of the U.S. District Court
for the Southern District of California grants Lead Plaintiff
Gergely Csaba's Motion for Class Certification.
On April 16, 2021, Ali filed a Class Action Complaint against the
Defendants for violations of the Securities Exchange Act of 1934.
On Sept. 15, 2021, the Court appointed Gergely Csaba as the Lead
Plaintiff and Pomerantz LLP as the Lead Counsel pursuant to section
21D(a)(3)(B) of the Exchange Act.
The operative pleading in the case is the Amended Complaint
("FAC"). The FAC details that Franklin is a provider of wireless
solutions, including mobile hotspots, routers and modems, and
markets and sells its products directly to wireless operators, as
well as indirectly through partners and distributors.
According to the FAC, the Defendants violated Sections 10(b) and
20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder by
misleading the market to believe that the Company had no knowledge
that its mobile hotspot devices were manufactured with defective
lithium-ion batteries. The FAC alleges that during the class
period, Franklin knew, but did not disclose that the hotspot
devices were manufactured with defective lithium-ion batteries that
posed a serious safety hazard because the batteries could overheat
and cause severe burns and, in some cases, catch fire. The
Defendants filed an Answer, and the Lead Plaintiff now seeks class
certification.
The Lead Plaintiff seeks to certify the following class: All
persons and entities other than defendants who purchased or
otherwise acquired Franklin Wireless Corporation (Franklin or the
Company) common stock between Sept. 17, 2020 and April 8, 2021 (the
Class Period), inclusive.
Rule 23(a) sets forth four requirements for class certification:
(1) numerosity; (2) commonality; (3) typicality; and (4) adequacy
of representation. Fed. R. Civ. P. 23(a).
Judge Battaglia finds that (i) there are at least 478 members --
more than enough to meet the numerosity requirement; (ii) there are
many common factual and legal questions in the case, including
whether federal securities laws were violated by the Defendants'
conduct as alleged; (iii) the Lead Plaintiff's claims arise from
the same events that give rise to the other class members' claims;
(iv) the Lead Plaintiff possesses the same interest and sufferd the
same injury as the class members; and (v) the Lead Counsel is also
well-qualified to represent the proposed class.
Next, certification under Rule 23(b)(3) -- the subsection under
which the Lead Plaintiff seeks certification -- is appropriate only
where the plaintiff establishes that (1) issues common to the class
predominate over issues affecting individual class members; and (2)
the class action device is superior to other methods available for
adjudicating the dispute.
Judge Battaglia finds that (i) the elements of falsity,
materiality, scienter, and loss causation present questions common
to the class because they all depend on the Defendants' actions,
and not those of any individual class member; and (ii) considering
the identical claims shared by at least over 400 members of the
class, the relatively small size of the typical claim, and the
geographical dispersion of the class members, a class action the
superior method to litigating this securities case.
Based on the foregoing, Judge Battaglia grants the motion for class
certification and appoints Gergely Csaba as the class
representative, and Pomerantz LLP as the class counsel.
A full-text copy of the Court's Jan. 3, 2023 Order is available at
https://tinyurl.com/2yrchfar from Leagle.com.
GENERAL MOTORS: Class Cert Briefing Deadlines Extended in Pilgrim
-----------------------------------------------------------------
In the class action lawsuit captioned as ESTATE OF WILLIAM D.
PILGRIM, et al. individually and on behalf of all others similarly
situated, v. GENERAL MOTORS LLC, Case No. 2:20-cv-10562-TGB-DRG
(E.D. Mich.), the Hon. Judge Terrence G. Berg entered an order
extending certain deadlines for expert disclosures and class
certification briefing deadlines and hearing date as follows:
Event Current New
Deadline Deadline
GM's Deadline To Serve Feb. 10, 2023 Feb. 24, 2023
Rule 26(A)(2) Expert
Disclosures
GM's Deadline To File Feb. 10, 2023 Feb. 24, 2023
Its Response To
Plaintiffs' Class
Certification Motion
Plaintiffs' Deadline To Mar. 10, 2023 Mar. 24, 2023
File Any Reply In
Support Of Plaintiffs'
Class Certification
Motion
Hearing on Plaintiffs' To be scheduled To be scheduled
Motion for Class on a date on a date
Certification convenient to the convenient to
Court on or after the Court on or
April 7, 2023 after Apr. 21,
2023
GM is an American multinational automotive manufacturing company.
A copy of the Court's order dated Jan. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3ZjE59J at no extra charge.[CC]
The Plaintiff is represented by:
André E. Jardini, Esq.
K.L. Myles, Esq.
Michael D. Carr, Esq.
KNAPP, PETERSEN & CLARKE
550 North Brand Blvd., Suite 1500
Glendale, California 91203-1922
Telephone: (818) 547-5000
E-mail: aej@kpclegal.com
klm@kpclegal.com
mdc@kpclegal.com
- and -
David M. Honigman, Esq.
Douglas L. Toering, Esq.
Kenneth Chadwell, Esq.
MANTESE HONIGMAN P.C.
1361 E. Big Beaver Road
Troy, MI 48083
Telephone: (248) 457-9200
Facsimile: (248) 457-9201
E-mail: dhonigman@manteselaw.com
dtoering@manteselaw.com
Kchadwell@manteselaw.com
The Defendant is represented by:
April N. Ross, Esq.
Andrew Holmer, Esq.
CROWELL & MORING LLP
1001 Pennsylvania Avenue, N.W.
Washington, DC 20004
Telephone: (202) 624-2500
Facsimile: (202) 628-5116
E-mail: aross@crowell.com
aholmer@crowell.com
- and -
Michael P. Cooney, Esq.
Krista L. Lenart, Esq.
DYKEMA GOSSETT PLLC
400 Renaissance Center
Detroit, MI 28243
Telephone: (313) 568-6800
Facsimile: (855) 256-1478
E-mail: mcooney@dykema.com
klenart@dykema.com
GOOGLE LLC: Class Cert Briefing Schedule Extended in Rodriguez
--------------------------------------------------------------
In the class action lawsuit captioned as ANIBAL RODRIGUEZ, et al.
individually and on behalf of all others similarly situated, v.
GOOGLE LLC, Case No. 3:20-cv-04688-RS (N.D. Cal.), the Hon. Judge
Richard Seeborg entered an order extending discovery,
class certification briefing schedule, and hearing date as
follows:
-- Google's Opposition: January 11, 2022
-- Plaintiffs' Reply: January 18, 2023
-- Hearing on the Motion: At the Court's
discretion, but proposed
for February 2, 2023 at
1:30 p.m.
A copy of the Court's order dated Jan. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3ih30dJ at no extra charge.[CC]
GRAND CANYON: Plaintiffs' Allowed to File Class Cert Bid by Feb. 3
------------------------------------------------------------------
In the class action lawsuit captioned as Seth Hannibal-Fisher, et
al., v. Grand Canyon University, Case No. 2:20-cv-01007-SMB (D.
Ariz.), the Hon. Judge Susan M. Brnovich entered an order that the
Plaintiffs' Renewed Emergency Motion for Reconsideration of the
Court's Order Denying Plaintiffs' Motion to Amend the First Amended
Case Management Order ("MFR") is granted in part and denied in
part.
-- The Court further enter an order amending the First
Amended Case Management Order to allow Plaintiffs to file
a motion for class certification on or before February 3,
2023.
-- The Defendants shall file its opposition on or before
March 6, 2023.
-- The Plaintiffs shall 6 file their reply on or before March
20, 2023.
-- The remaining portions of Plaintiffs' MFR is denied.
-- It is further ordered denying Defendants' request for
attorneys' fees.
The Court finds Plaintiffs did not file the MFR in bad faith. The
Court dismissed the original MFR without prejudice so the Motion to
Consolidate could be decided first, not because it was denied on
the merits. This invited Plaintiffs to file the renewed MFR.
Furthermore, the Court has addressed the substantive deficiencies
with Plaintiffs' MFR but does not find Plaintiffs' arguments to be
frivolous. Defendant's request for attorneys' fees is denied.
The Defendant argues Plaintiffs filed the MFR in bad faith because:
(1) the MFR repeats arguments made in the original Motion to
Amend CMO;
(2) the MFR violates and fails to cite LRCiv 7.2(g)(1); and
(3) "there is no excuse" for Plaintiffs' failing to analyze
how the City of Pomona factors apply because they were
cited as controlling authority in the Court's Order
denying the original Motion to Amend CMO.
On April 27, 2022, the Plaintiffs filed a Motion to Consolidate
Cases and a Motion to Amend CMO. On June 30, 2022, the Court denied
Plaintiffs' Motion to Amend CMO. Emergency Motion to Reconsider the
Court's Order Denying Plaintiffs' Motion to
Amend CMO.
GCU is a private for-profit Christian university in Phoenix,
Arizona.
A copy of the Court's order dated Jan. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3CvAADH at no extra charge.[CC]
GRANITE SERVICES: More Time to File Class Cert Response Sought
--------------------------------------------------------------
In the class action lawsuit captioned as JOSE LUIS RODRIGUEZ, JR.,
individually and on behalf of all others similarly situated, v.
GRANITE SERVICES INTERNATIONAL, INC., and FIELDCORE SERVICES
SOLUTIONS, LLC, Case No. 1:21-cv-02689-AT (N.D. Ga.), the
Defendants file a motion to request that the Court enter an Order
extending Defendants' deadline to file its response in opposition
to Plaintiff's Motion for Class Certification until January 30,
2023.
On October 21, 2022, the Defendants and Plaintiff filed their Joint
Motion to Set New Scheduling Order Deadlines, where they jointly
asked this Court to establish January 13, 2023 and February 15,
2023, respectively, as the new deadlines for
(i) the close of initial discovery concerning class
certification issues and Plaintiff's claims, and
(ii) motions on Rule 23 class certification.
In an October 24, 2022 docket entry, the Court granted the Parties'
Joint Motion, setting January 13, 2023 as the deadline for initial
discovery and February 15, 2023 as the deadline for any motions on
class certification.
Starting on December 13, 2022 and continuing today, the primary
attorney handling this case for Defendants, Theresa Waugh, has been
out on a medical leave of absence, which has required multiple
in-patient stays at the hospital. Defendants' continued efforts --
during the days leading up to Ms. Waugh's leave and in the weeks
since her leave began—to confer with Plaintiff regarding the
upcoming deadlines and the need to extend them as a result of Ms.
Waugh's medical leave and intervening holidays were unavailing.
The Plaintiff's counsel notified Defendants on January 5, 2023 that
Plaintiff would not consent to the extensions.
Granite Services provides professional engineering services.
A copy of the Defendants' motion dated Jan. 5, 2022 is available
from PacerMonitor.com at https://bit.ly/3WUJPoQ at no extra
charge.[CC]
The Defendants are represented by:
Brett C. Bartlett, Esq.
Kevin M. Young, Esq.
Zheyao Li, Esq.
Theresa Waugh, Esq.
SEYFARTH SHAW LLP
1075 Peachtree Street, N.E., Suite 2500
Atlanta, GA 30309-3958
Telephone: (404) 885-1500
E-mail: bbartlett@seyfarth.com
kyoung@seyfarth.com
zyli@seyfarth.com
twaugh@seyfarth.com
GRETCHEN WHITMER: Rouse Must File Class Cert Bid by Feb. 13
-----------------------------------------------------------
In the class action lawsuit captioned as ARTHUR J. ROUSE, et al.,
on behalf of themselves and all others similarly situated, v.
Michigan Governor Gretchen Whitmer, et al., in their individual and
official capacities, Case No. 2:20-cv-12308-BAF-DRG (E.D. Mich.),
the Hon. Judge David R. Grand entered an order extending the
deadline for the plaintiffs' motion for class certification and
extending the parties' deadline for filing proposed case management
and discovery plan, as follows:
1. The Plaintiffs shall have until February 13, 2023, to file
their motion for class certification.
2. The parties shall have until February 15, 2023, to file
their proposed case management and discovery plan.
3. The scheduling conference initially set for January 5,
2023, and adjourned upon this Court's January 4, 2023,
text only order, is hereby rescheduled to February 6,
2023.
4. In the event that the parties agree upon final terms of a
settlement, they shall immediately inform the Court so
that the Court may schedule a status conference to discuss
the final procedural matters of resolving this case.
On September 21, 2022, the Court held a scheduling conference to
establish a timeline for the efficient resolution of this case.
The Parties represented to the Court that they were engaged in good
faith settlement discussions and requested time to pursue those
discussions.
To encourage out of court settlement and ensure that this case
moved forward, the Court issued an Order requiring Plaintiffs to
submit their motion for class certification on November 7, 2022,
for the Parties to submit their proposed case management and
discovery plan by November 10, 2022, and scheduled a scheduling
conference for November 14, 2022.
On November 7, 2022, the parties submitted a proposed order
extending the deadlines for Plaintiffs' motion for class
certification, the parties' proposed case management and discovery
plan, and adjourning the November 14, 2022, scheduling conference.
On November 18, 2022, the Parties submitted their second
stipulation and order to extend the relevant deadlines. On November
21, 2022, this Court entered the parties' second stipulation and
order extending the relevant deadlines.
Throughout the month of December, counsel for the Parties was
consistently in communication with each other regarding progress of
the settlement discussions.
On January 3, 2023, counsel for Defendants sent counsel for
Plaintiffs revised settlement language built on the conversations
between the parties during December of 2022.
Currently, the Plaintiffs' deadline to file their motion for class
certification is January 12, 2023, and the parties' deadline to
file their proposed case management and discovery plan is January
15, 2023.
A copy of the Court's order dated Jan. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3QqsFgG at no extra charge.[CC]
The Plaintiffs are represented by:
Alyson Oliver, Esq.
Cameron Bell, Esq.
Paul Matouka, Esq.
OLIVER LAW GROUP PC
50 W. Big Beaver Road, Suite 200
Troy, MI 48084
Telephone: (248) 327-6556
E-mail: notifications@oliverlawgroup.com
The Defendant is represented by:
Joshua Smith, Esq.
Kristin Heyse, Esq.
Zachary Zurek, Esq.
MDOC DIVISION
P.O. Box 30217
Lansing, MI 48909
Telephone: (517) 335-3055
E-mail: heysek@michigan.gov
zurekz1@michigan.gov
smithj191@michigan.gov
HARMON STORES: E.D. New York Refuses to Dismiss Georgiou Suit
-------------------------------------------------------------
Judge Brian M. Cogan of the U.S. District Court for the Eastern
District of New York denies the Defendant's motion to dismiss the
lawsuit captioned KATERINA GEORGIOU, individually and on behalf of
all others similarly situated, Plaintiff v. HARMON STORES, INC.,
Defendant, Case No. 2:22-cv-02861-BMC (E.D.N.Y.).
The Plaintiff seeks liquidated damages on behalf of herself and
others similarly situated based on allegations that the Defendant
paid her and her proposed class bi-weekly instead of weekly as
required by New York Labor Law Section 191.
The Defendant has moved to dismiss the claim, arguing that (1) the
Plaintiff lacks standing; (2) the Plaintiff does not have a private
right of action for violations of NYLL Section 191; and (3)
permitting the Plaintiff to recover $36 million in liquidated
damages for failing to comply with NYLL Section 191 would violate
the Fourteenth Amendment's Due Process Clause.
Judge Cogan denies the motion because: (1) the time delay in
receiving wages owed is a sufficient injury to confer standing; (2)
the New York authority, although scant, allows a private cause of
action under NYLL Section 191; and (3) the Defendant's due process
challenge is premature.
The Plaintiff worked as a cashier and store associate at Harmon
Face Values in Mineola. She spent at least 25% of her time engaged
in manual labor within the meaning of the NYLL, performing tasks
that included tending to the cash register and handling merchandise
and stock. She and others similarly situated were paid bi-weekly in
violation of NYLL Section 191(1)(a), which requires that manual
workers be paid weekly.
The Plaintiff claims that she was injured by the Defendant's
failure to pay weekly wages because she was unable to "invest, earn
interest on, or otherwise use" the money owed to her. She does not,
however, seek any actual damages based on the temporary deprivation
of these payments. She instead alleges that the class members are
owed approximately $36 million in liquidated damages as provided
for in NYLL Section 198.
The Defendant argues that the Plaintiff lacks Article III standing
because she has failed to establish a concrete and particularized
harm that is actual or imminent. The Defendant primarily relies on
TransUnion LLC v. Ramirez, 141 S.Ct. 2190 (2021), in which the
Supreme Court clarified that constitutional standing does not exist
simply because a technical violation triggers a statutory damage
award. A plaintiff must instead demonstrate an actual and concrete
injury to have standing to pursue a claim under the statute.
Judge Cogan finds that Ramirez does not control the case. The
Plaintiff alleges that as a result of the Defendant's failure to
make timely payments as required by the NYLL, she was injured in
that she was temporarily deprived of money owed to her, and she
could not invest, earn interest on, or otherwise use these monies
that were rightfully hers. Judge Cogan holds that this is
sufficient to plead an actual and concrete injury. Even without
that allegation, the deprivation of money to which one is legally
entitled is an actual and concrete injury per se.
The Defendant's attempt to analogize to Americans with Disabilities
Act cases, like Harty v. W. Point Realty, Inc., 28 F.4th 435, 443
(2d Cir. 2022), which hold that a plaintiff cannot establish
standing by alleging a vague intent to visit an allegedly
non-compliant website "someday" and "in the near future," is also
misplaced, Judge Cogan holds.
Acceptance of the Defendant's argument would leave a lender,
seeking to collect on a defaulted note, without standing to sue
unless the lender could show what it would have done with the money
had the borrower timely paid, Judge Cogan points out. It is obvious
that a lender does not have to show that; deprivation of money owed
is enough.
The Defendant also argues that NYLL Sections 191 and 198 do not
provide plaintiff with a private right of action to assert a claim
for untimely wage payments.
Despite doubts about the viability of Vega in light of Konkur,
Judge Cogan finds that Konkur does not rise to the level of
"persuasive evidence" that the Court of Appeals would reject Vega,
citing Konkur v. Utica Academy of Science Charter School, 38 N.Y.3d
38, 165 N.Y.S.3d 1 (2022); and Vega v. CM & Assocs. Constr. Mgmt.,
LLC, 175 A.D.3d 1144, 1145, 107 N.Y.S.3d 286, 288 (1st Dep't
2019).
Judge Cogan, therefore, follows Vega to hold that the Plaintiff has
a private right of action under Sections 191 and 198(1-a), at least
pending further instruction from the New York State courts.
The Defendant further argues that permitting the Plaintiff to
recover liquidated damages in the amount of 100% of late-paid wages
-- here, approximately $36 million according to the Plaintiff's
allegations -- absent a showing of actual underpaying would violate
the Fourteenth Amendment's Due Process Clause because the penalty
is so severe and oppressive as to be wholly disproportioned to the
offense and obviously unreasonable.
Although the Due Process Clause prohibits excessive statutory
penalties, the Defendant's due process challenge is premature,
Judge Cogan holds. No damages have been awarded, so there is no
award for Judge Cogan to assess for excessiveness.
Thus, even if the issue were ripe, Judge Cogan would not grant the
relief requested by the Defendant to deny the Plaintiff a certain
type of damages on a motion to dismiss. And even if he found that
the Defendant's challenge has merit, the Defendant does not provide
any reason as to why he could not order remitter or partially
vacate an excessive award, if there is one, as opposed to denying
an award in its entirety, Judge Cogan opines.
The Defendant argues that its constitutional challenge can be
decided now because, unlike putative damages, which can only be
determined after trial, the Plaintiff has already quantified the
amount she seeks by way of statutory damages. But the Plaintiff is
a long way from turning her prayer for $36 million in liquidated
damages into an actual verdict, Judge Cogan notes. She may lose
this case, or she may fail to prove that the class is anywhere near
as large as she claims or that the Defendant violated NYLL Section
191 at all, Judge Cogan points out.
The Defendant may also assert, as a complete defense to liquidated
damages, that it had a good faith basis for believing that it was
in compliance with the law, Judge Cogan says. Indeed, the fact that
this provision of New York law is such an outlier as compared to
other states in the country may by itself defeat a finding of
willfulness.
Therefore, in the absence of an actual damages award and factual
record, the Court declines to rule on the Defendant's due process
challenge.
A full-text copy of the Court's Memorandum Decision and Order dated
Dec. 29, 2022, is available at https://tinyurl.com/yy7w9u3w from
Leagle.com.
HEIDI WASHINGTON: Bossum Bid for Class Certification Junked
------------------------------------------------------------
OPINION AND ORDER In the class action lawsuit captioned as MARK A.
BOUSSUM, et al., v. HEIDI WASHINGTON, et al., Case No.
1:22-cv-12232-TLL-KGA (E.D. Mich.), the Hon. Judge Thomas L.
Ludington entered an order as follows:
1. lifting stay;
2. denying the plaintiffs' motion for class certification and
appointing counsel;
3. denying plaintiff's motion for temporary restraining
order; and
4. directing plaintiffs to correct in forma pauperis
applications
Finally, the Court ordered that, on or before February 3, 2023, the
Plaintiffs are directed to submit either the $350.00 filing fee and
$52.00 administrative fee (i.e., $402.00) or the required
Prisoner's Application to Proceed Without Prepayment of Fees and
Costs and Authorization to Withdraw from the Trust Fund Account.
If Plaintiffs fail to file the required documents or to pay the
filing fee and the administrative fee, then this Court must presume
they are proceeding without prepayment, assess the whole fee, and
dismiss the case for failure to prosecute.
Any case dismissed under these circumstances, will not be
reinstated even if the fee is later paid. This is not a final order
and does not close the above-captioned case.
The Plaintiffs are six "handicapped inmates" at Thumb Correctional
Facility (TCF) in Lapeer, Michigan. They have filed a pro se
civil-rights complaint under 42 U.S.C. section 1983, alleging TCF
failed to accommodate their disabilities and, therefore, violated
their rights under the First, Eighth,
and Fourteenth Amendments; the Americans with Disabilities Act, 42
U.S.C. section 12132; and the Rehabilitation Act, 29 U.S.C. section
794.
A copy of the Court's order dated Jan. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3ZlqdvK at no extra charge.[CC]
HENRY INDUSTRIES: Amended Pretrial Sched Order Entered in Sarte
---------------------------------------------------------------
In the class action lawsuit captioned as ERNEST SARTE, individually
and on behalf of all others similarly situated, v HENRY INDUSTRIES,
INC., Case No. 2:22-cv-01678-TLN-DB (E.D. Cal.), the Hon. Judge
Troy L. Nunley entered an amended pretrial scheduling order as
follows:
-- Additional parties/amendments/pleadings
No joinder of parties or amendments to pleadings is
permitted without leave of court, good cause having been
shown.
-- Phase I - class certification discovery
The Court hereby bifurcates the discovery process. All
discovery in Phase I shall be limited to facts that are
relevant to whether this action should be certified as a
class action and shall be completed by July 3, 2023.
-- Disclosure of expert witnesses
All counsel are to designate in writing, file with the
Court, and serve upon all other parties the name, address,
and area of expertise of each expert that they propose to
tender at class certification not later than September 5,
2023.
-- Class certification
The Motion for Class Certification shall be filed by
December 4, 2023. The parties are responsible for ensuring
that all motions are filed to allow for proper notice of
the hearing under the Federal Rules of Civil Procedure
and/or Local Rules.
-- Post-certification case activity
All other necessary dates and deadlines, including dates
for the Final Pretrial Conference and Trial, along with all
deadlines associated therewith, will be set by a
Supplemental Pretrial Scheduling Order to be issued
following the Court's ruling on Plaintiff's Class
Certification Motion.
-- Objections to pretrial scheduling order
This Pretrial Scheduling Order will become final without
further order of the Court unless objections are filed
within 14 days of service of this Order.
Henry Industries is a full-service nationwide provider of
distribution center, warehouse and logistic needs.
A copy of the Court's order dated Jan. 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3Is6Jzz at no extra charge.[CC]
HEY FAVOR INC: Sued Over Unlawful Disclosure of PII
---------------------------------------------------
Jane Doe, individually and on behalf of all others similarly
situated v. HEY FAVOR, INC., FULLSTORY, INC., META PLATFORMS, INC.,
TIKTOK, INC., AND BYTEDANCE INC., Case No. 3:23-cv-00059 (N.D.
Cal., Jan. 5, 2023), is brought against the Defendants unlawful
disclosure of the Plaintiff's personally identifiable information.
Founded in 2016, Favor (formerly the "Pill Club") is a combination
telemedicine and direct-to-consumer pharmacy that prescribes its
patients birth control, emergency contraception (e.g.,
morning-after pills), STI test kits, acne medicine, and
prescription-strength retinol. Users can also purchase directly
from Favor other menstrual care and sexual wellness products, like
condoms, lubrication, and pregnancy tests, and learn from medical
information it provides on health and wellness topics, like
periods, skin conditions, and birth control. Visitors access these
services and products through Favor's website at www.heyfavor.com
and/or through its mobile app ("the Favor Platform").
Favor's services are comprised of three main components: its
"Medical Team" consisting of doctors and nurse practitioners who
review users' health history, evaluate their needs, prescribe
medications, and answer medical questions; its "Pharmacy Team"
comprised of pharmacists and technicians who review and process
medication orders; and its "Patient Care Team" who assist patients
and personalize their care.
Customers must provide Favor with personally identifiable
information ("PII") (e.g., their names, email addresses, date of
birth, place of residence, payment information, and health
insurance information) to use its telehealth platform. Favor also
collects other identifiable information from users, including their
IP address, unique device information and identifiers, and cookie
data, which are used to track users across the internet.
The Plaintiff and Class members provided their information to Favor
based on the company's repeated assurances that their intimate
health data, PII, and other information would remain protected and
confidential. Unbeknownst to the Plaintiff and Class members, Favor
knowingly and intentionally disclosed, and allowed third parties
like Meta, TikTok, and FullStory (collectively, "Advertising and
Analytics Defendants") to intercept users' health data and other
highly sensitive information. Favor disclosed and allowed third
parties to intercept at least users' prescription information
(e.g., that they were prescribed birth control), answers to health
questions (e.g., "what is your most recent blood pressure reading?"
and "have you had or do you currently have breast cancer?"),
medication side effects, allergies, age, and weight. In some
instances, as is the case with FullStory, Favor disclosed and
allowed FullStory to intercept all of the users' interactions on
the Favor Platform (e.g., all individual clicks, keystrokes, and
mouse movements) including their answers to highly sensitive
medical questions. This information was not aggregated or
deidentified nor were third parties prohibited from using this
information for their own benefit, as Favor claimed.
The Plaintiff provided her information, including health data and
PII in connection with obtaining prescriptions for birth control
and emergency contraceptives, to Favor with the expectation that
this information would remain confidential and private. The
Defendants' disclosure and interception of this information without
consent constitute an extreme invasion of Plaintiff's and Class
members' privacy. Given the secret and undisclosed nature of
Defendants' conduct, additional evidence supporting Plaintiff's
claims, including the full extent of medical information Defendants
disclosed and/or intercepted, and how they used that information,
will be revealed in discovery, says the complaint.
The Plaintiff used the Favor Platform in or around the summer of
2021 to obtain medical services and products, including
prescriptions for birth control, emergency contraception and
condoms through the Favor Platform.
Hey Favor, Inc. is a Delaware corporation with its principal place
of
business located in San Mateo, California.[BN]
The Plaintiff is represented by:
(Eddie) Jae K. Kim, Esq.
LYNCH CARPENTER, LLP
117 East Colorado Blvd., Suite 600
Pasadena, CA 91105
Phone: (626) 550-1250
Email: ekim@lcllp.com
- and -
Gary F. Lynch, Esq.
Jamisen A. Etzel, Esq.
Nicholas A. Colella, Esq.
LYNCH CARPENTER, LLP
1133 Penn Ave., 5th Floor
Pittsburgh, PA 15222
Phone: (412) 322-9243
Email: gary@lcllp.com
jamisen@lcllp.com
nickc@lcllp.com
- and -
Christian Levis, Esq.
Amanda Fiorilla, Esq.
Rachel Kesten, Esq.
Christopher Devivo, Esq.
LOWEY DANNENBERG, P.C.
44 South Broadway, Suite 1100
White Plains, NY 10601
Phone: (914) 997-0500
Fax: (914) 997-0035
Email: clevis@lowey.com
afiorilla@lowey.com
rkesten@lowey.com
cdevivo@lowey.com
HICKORY, NC: Appeals Court Affirms Summary Judgment in Gantt Suit
-----------------------------------------------------------------
In the lawsuit titled GARY GANTT d/b/a GANTT CONSTRUCTION,
Plaintiff v. CITY OF HICKORY, Defendant, Case No. COA21-767 (N.C.
App.), the Court of Appeals of North Carolina affirms the order
granting summary judgment for the Defendant.
Plaintiff Gary Gantt, doing business as Gantt Construction, appeals
from an order entering summary judgment for the City of Hickory
("City") and dismissing the Plaintiff's claims with prejudice. On
appeal, the Plaintiff argues his claims were not barred by the
statute of limitations, and the City's impact fees for water and
sewer service were unlawful, thus, entitling him to summary
judgment.
After careful review, the Court of Appeals concludes the
Plaintiff's claims do not relate back to the filing of his original
complaint; therefore, the Plaintiff's claims are barred by the
statute of limitations, and the trial court did not err in granting
summary judgment for the City.
In 1996, the City began charging capacity fees on new water and
sewer connections. Capacity fees, also known as impact fees, are a
one-time charge assessed against new development to recover a
proportional share of the cost of existing water and sewer
facilities. The fees were collected at the time of the customer's
application for new water and sewer services, typically ten days
before the City commenced water and sewer services. Revenue from
the capacity fees was deposited into the City's general water and
sewer operating fund for "future expansion or future water and
sewer systems."
On July 20, 2017, the North Carolina General Assembly enacted House
Bill 436 to address fee inconsistences among public providers,
including calculation methodologies and implementation. The law
provided specific guidelines that public water and sewer providers
were required to follow to charge capacity fees or System
Development Fees. House Bill 436 went into effect on Oct. 1, 2017,
but a grace period was provided through June 30, 2018, to allow
public providers to update fees in accordance with the new
procedures and conditions.
On Nov. 14, 2016, the Plaintiff was required to pay water capacity
fees of $504 and sewer capacity fees of $544 for a property located
in Hickory, North Carolina, as a condition of the City furnishing
water and sewer service to the property. The Plaintiff commenced
the 19-CVS-106 action, with Gantt Construction Co. identified as
the plaintiff, seeking a refund, on behalf of the Plaintiff and a
putative class of all natural persons, corporations, and other
entities, who at any time from Jan. 11, 2016, through June 30,
2018, paid capacity charges to the City pursuant to the schedule of
fees and/or Code of Ordinances adopted by the City.
The complaint in the 19-CVS-106 action was filed on Jan. 11, 2019,
within three years of the Plaintiff's payment on Nov. 14, 2016, the
date he alleges his injury occurred and his claim arose. On Feb.
18, 2020, the Plaintiff voluntarily dismissed the original action
without prejudice, and he refiled a complaint on April 28, 2020,
asserting identical claims.
Gantt Construction Co., a corporation organized and existing under
the laws of the State of Texas with its principal place of business
in Texas, was the named plaintiff in the first two complaints,
filed Jan. 11, 2019, and on April 28, 2020. Gary Gantt's Feb. 18,
2020 affidavit indicated Gantt Construction Co. maintained a
physical office in Hickory, North Carolina.
Judge Jeffery Carpenter, writing for the Panel, finds that a Texas
corporation named Gantt Construction Co. does exist; however, it is
not owned, operated, or otherwise affiliated with Gary Gantt. Gary
Gantt operates his construction business as a sole
proprietorship--filing tax returns for his business under his
individual name--not a corporate entity. Deposition testimony also
established that Gary Gantt never filed an assumed business name
certificate to transact business in North Carolina as Gantt
Construction.
On Dec. 11, 2020, after Gary Gantt's deposition testimony revealed
the Texas corporation did not pay the capacity fees in question,
the Plaintiff filed a motion to amend the complaint to substitute
the name of the plaintiff to "Gary Gantt d/b/a Gantt Construction."
The trial court granted the motion, and the Plaintiff filed an
amended complaint on Jan. 13, 2021. Also on Dec. 11, 2020, the
Plaintiff filed a motion for class certification, which was amended
on Jan. 29, 2020, and granted in part on Feb. 22, 2021.
The Plaintiff filed a motion for summary judgment on April 30,
2021, which the City simultaneously opposed and moved that judgment
be entered in its favor as the non-moving party per Rule 56(c). The
trial court entered an order granting summary judgment for the City
on July 15, 2021. On July 19, 2021, the Plaintiff filed timely a
notice of appeal.
The sole issue on appeal is whether the trial court erred in
granting summary judgment for the City.
The Plaintiff advances a two-step analysis on appeal in support of
his argument that his claims relate back to the original action and
are not barred by the applicable statute of limitations. First, his
refiling of a complaint raising identical claims within one year of
the voluntary dismissal of his first complaint entitles him to
relation back under Rule 41(a). Second, his amendment of the named
Plaintiff in the action from "Gantt Construction Co." to "Gary
Gantt d/b/a Gantt Construction" relates back to the original
complaint under Rule 17(a).
The Court of Appeals concludes that the Plaintiff's claims do not
relate back under Rule 41(a).
Judge Carpenter explains that the Plaintiff's claims arose on Nov.
14, 2016, meaning his claims must have been brought on or before
Nov. 14, 2019, to avoid being time-barred, in the absence of a
meritorious tolling argument (N.C. Gen. Stat. Section 1-52(15)).
The Plaintiff argues that under Rule 41, his second complaint,
filed on April 28, 2020, and amended with leave of court on Jan.
13, 2021, relates back to the original complaint filed on Jan. 11,
2019, and voluntarily dismissed on Feb. 18, 2020, for purposes of
tolling the three-year statute of limitations. The City recognizes
that Rule 41 may be invoked where a subsequent complaint relates
back to an action previously dismissed without prejudice, but
argues it may only be utilized if the second action involves the
same parties. The Court of Appeals agrees with the City.
Judge Carpenter opines that "Gary Gantt d/b/a Gantt Construction"
is neither a corporation nor incorporated under the laws of Texas.
Accordingly, the Court of Appeals concludes that the Plaintiff
cannot avail himself of relation back under Rule 41(a), because the
second action does not involve the "same parties" as the first.
Since the subsequent complaint was not filed until April 28, 2020,
after Nov. 14, 2019--the last date the Plaintiff could have timely
brought his action--the Plaintiff's claims are barred by the
statute of limitations, Judge Carpenter holds.
The Court of Appeals declines to reach the Plaintiff's class action
tolling argument, raised for the first time in his reply brief.
Having concluded the Plaintiff's claims do not relate back under
Rule 41(a) and are consequently barred by the applicable three-year
statute of limitations, the Court of Appeals does not reach the
Plaintiff's additional theories of relief.
Gary Gantt did not bring this action within the applicable statute
of limitations; therefore, the trial court did not err in
concluding no genuine dispute of material fact existed with respect
to the Plaintiff's claims, Judge Carpenter opines. Accordingly, the
Court of Appeals affirms the order of the trial court entering
summary judgment for the City and dismissing the Plaintiff's claims
with prejudice.
Affirmed.
Judges MURPHY and JACKSON concur.
A full-text copy of the Court's Opinion dated Dec. 29, 2022, is
available at https://tinyurl.com/3xcms2xh from Leagle.com.
Milberg Coleman Bryson Phillips Grossman, PLLC, by James R. DeMay
-- jdemay@milberg.com -- Daniel K. Bryson -- dbryson@milberg.com --
Scott C. Harris -- sharris@milberg.com -- and John Hunter Bryson --
hbryson@milberg.com -- for the Plaintiff-Appellant.
Young, Morphis, Bach & Taylor, LLP, by Paul E. Culpepper --
PaulC@hickorylaw.com -- and Timothy D. Swanson --
TimothyS@hickorylaw.com -- for the Defendant-Appellee.
HOMESPIRE MORTGAGE: Conditional Cert. of Collective Action Sought
-----------------------------------------------------------------
In the class action lawsuit captioned as IONA LEWIS and JACLYN
HEERY, individually and on behalf of all others similarly situated,
v. HOMESPIRE MORTGAGE CORPORATION, a Maryland corporation, Case No.
9:22-cv-81684-JIC (S.D. Fla.), the Plaintiffs ask the Court to
enter an order granting their motion to conditionally certify
collective action and facilitate notice to similarly situated
employees and incorporated memorandum of law.
Based on the foregoing, all current and former individuals employed
by Defendant as loan officers and classified as non-exempt,
nationwide, who were and/or are subject to the the Defendant's Pay
Policy during any workweeks since November 1, 2019 (three (3) years
prior to the filing of the instant lawsuit). should be provided
notification of the pendency of this action and of their right to
opt-into this action should they file a notice of consent with the
clerk of this court.
The current and former employees of Defendant who are and were
similarly situated to Plaintiffs are those current and former
individuals employed by Defendant as loan officers and classified
as non-exempt, nationwide, who were and/or are subject to the
Defendant's Pay Policy during any workweeks since November 1, 2019
(three years prior to the filing of the instant lawsuit).
Homespire is a residential mortgage lender, doing business in
Florida, Georgia.
Homespire formerly employed the Plaintiffs as loan officers at
their respective branches. The Plaintiffs worked as loan officers
for Homespire during one or more workweeks in 2022.
A copy of the Plaintiff's motion to certify class dated Jan. 5,
2022 is available from PacerMonitor.com at https://bit.ly/3Glk4qR
at no extra charge.[CC]
The Plaintiff is represented by:
Daniel R. Levine, Esq.
PADULA BENNARDO LEVINE LLP
3837 NW Boca Raton Blvd., Suite 200
Boca Raton, FL 33431
Telephone: (561) 544-8900
Facsimile: (561) 544-8999
E-mail: drl@pbl-law.com
HUSSONG MANUFACTURING: Velazquez Files ADA Suit in S.D. New York
----------------------------------------------------------------
A class action lawsuit has been filed against Hussong Manufacturing
Co., Inc. The case is styled as Bryan Velazquez, on behalf of
himself and all others similarly situated v. Hussong Manufacturing
Co., Inc., Case No. 1:23-cv-00099 (S.D.N.Y., Jan. 5, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Hussong Manufacturing Co., Inc., doing business as Kozy Heat
Fireplaces, manufactures heating equipment.[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
I.C. SYSTEM: Perez Given Leave to Amend Complaint Within 30 Days
----------------------------------------------------------------
Judge Kevin McNulty of the U.S. District Court for the District of
New Jersey issued an Opinion in the lawsuit styled AGUSTIN PEREZ,
on behalf of himself and all others similarly situated, Plaintiffs
v. I.C. System, Inc., Defendant, Case No. 21-14883 (KM) (MAH)
(D.N.J.):
(1) granting the Defendants' motion to dismiss without
prejudice; and
(2) granting the Plaintiff leave to amend his complaint within
30 days.
The putative class action arises out of debt collection letters
sent by Defendant I.C. System, Inc. Plaintiff Agustin Perez alleges
that I.C. System violated the Fair Debt Collection Practices Act
("FDCPA") by sending out misleading debt collection letters to him
and others similarly situated. I.C. System moved to dismiss the
complaint on the ground that Perez lacks Article III standing to
pursue his FDCPA claim and therefore that this Court lacks subject
matter jurisdiction.
Some time prior to Aug. 24, 2020, Perez incurred a debt to AT&T
DIRECTTV in connection with a consumer account. At some point
thereafter, AT&T referred the debt to I.C. System for collection.
I.C. System sent Perez a letter dated Aug. 24, 2020 seeking payment
of the AT&T debt in the amount of $251.97. The letter contained a
"Validation Notice," which is mandated by 15 U.S.C. Section
1692g(a)(3)-(5). Below the "Validation Notice," the letter stated,
"If you feel you are or have been the victim of Theft of Identity,
please call AT&T directly." No contact information for AT&T was
provided.
In August 2021, Perez commenced this action against I.C. System on
behalf of himself and all other New Jersey consumers, who were sent
similar letters. The complaint raises one count under the FDCPA. It
asserts that I.C. System violated 15 U.S.C. Section 1692e by using
false and misleading representations as a means to collect a debt,
and that I.C. System violated Section 1692g by failing to
effectively convey the "Validation Notice."
According to the complaint, being a victim of identity theft is a
basis for Perez and others similarly situated to dispute a debt.
Thus, Perez and others similarly situated have the right to report
the dispute of identity theft directly to I.C. System--either in
writing or over the phone--which would then trigger I.C. System's
obligation to verify the debt as explained in the "Validation
Notice." Perez asserts that the letter attempts to give away I.C.
System's obligation to accept a dispute from the Plaintiff and
others similarly situated related to identity theft to the creditor
-- AT&T. In addition, while the letter instructs its recipient to
call AT&T to report identity theft in connection the debt, it does
not provide the recipient with AT&T's contact information.
In May 2022, I.C. System filed the present motion to dismiss. I.C.
System argues solely that Perez does not have standing under
Article III to pursue his FDCPA claim because he has not suffered a
concrete injury. I.C. System, thus, asks the Court to dismiss the
complaint for lack of subject matter jurisdiction under Fed. R.
Civ. P. 12(b)(1).
Judge McNulty notes that in this case, I.C. System challenges only
the first element of standing; it argues that the allegations in
the complaint are insufficient to demonstrate that Perez has
suffered an injury in fact. I.C. System does not dispute that the
harm Perez claims to have suffered was "particularized" because, as
the recipient of the letter, Perez was personally affected by it.
Rather, I.C. System argues that Perez did not suffer a "concrete"
injury because he was not actually harmed by the purported FDCPA
violation.
For an injury to be concrete, it must actually exist, Judge McNulty
says, citing Spokeo Inc. v. Robins, 578 U.S. 340 (2016). In other
words, the injury must be "real" and not "abstract." Crucially,
however, a concrete injury does not need to be tangible. The
Supreme Court has recognized that many intangible injuries can,
nevertheless, be concrete, even if harder to discern than
straightforward physical or monetary harm.
In this case, Perez alleges that I.C. System violated the FDCPA by
communicating that he should contact AT&T with an identity theft
issue. That communication, says Perez, "overshadowed" and "was
inconsistent with" I.C. System's obligation to disclose to Perez
that he has a right to dispute the debt within 30 days of receiving
the letter.
But crucially, Perez does not allege that any negative consequences
stemmed from I.C. System's violation, Judge McNulty notes. In fact,
he does not allege that he took any action as a result of receiving
the letter. He states that the letter "frustrated" his ability to
intelligently choose his response, but he fails to allege how he
did respond, if at all.
The allegation that the letter creates confusion and leaves Perez
and others similarly situated uncertain as to their dispute rights
under the FDCPA is also insufficient, Judge McNulty holds. Perez
must allege that he took some action, or alternatively that he
failed to act, as a result of that confusion, Judge McNulty points
out, among other things.
The right to dispute the validity of a debt is undeniably an
important one, but Perez has not alleged that he was denied that
right as a consequence of I.C. System's misleading letter, Judge
McNulty opines. He may amend the complaint to add such allegations
if he chooses, Judge McNulty says.
Hence, the motion to dismiss is granted and the complaint is
dismissed without prejudice to the submission, within 30 days, of a
proposed amended complaint. An appropriate order will issue.
A full-text copy of the Court's Opinion dated Dec. 29, 2022, is
available at https://tinyurl.com/yjf8f23r from Leagle.com.
INTERNATIONAL PROTECTIVE: Gomes Sues Over Unpaid Wages
------------------------------------------------------
H. Gomes, individually and on behalf of all others similarly
situated v. INTERNATIONAL PROTECTIVE SERVICE, INC. (IPS), a New
Mexico Corporation; DOUGLAS MACHADO, an individual; RON TODD JONES,
an individual; and DOES 1-100, inclusive, Case No. 2:23-cv-00032
(C.D. Cal., Jan. 4, 2023), is brought under the Fair Labor
Standards Act, the California Labor Code and the California
Business and Professions Code seeking unpaid wages, damages,
penalties and attorneys' fees and costs, all according to proof,
against the Defendants.
The Defendants violated FLSA and the California Labor Code
requirements for payment of both "continuing wages" and
liquidated damages under the minimum wage law; as a result of the
Defendants' misuse of walkie-talkies and/or cell phones; meal
period and rest break violations; failure to reimburse expenses and
the defense paying wages with defective wage statements; and
potentially, the defense responsibility to pay PAGA civil penalties
to the Labor and Workforce Development Agency ("LWDA") of the State
of California, says the complaint.
The Plaintiff worked for Defendants as a security guard in the
County of Los Angeles, State of California.
IPS is a New Mexico corporation which conducted business within the
County of Los Angeles of the State of California.[BN]
The Plaintiff is represented by:
Alan Harris, Esq.
Priya Mohan, Esq.
HARRIS & RUBLE
655 North Central Ave., 17th Fl.
Glendale, CA 91203
Phone: (323) 962-3777
Facsimile: (323) 962-3004
Email: aharris@harrisandruble.com
pmohan@harrisandruble.com
JMJ ENTERPRISES: Wade Seeks to Certify NCWHA Class Action
----------------------------------------------------------
In the class action lawsuit captioned as TIFFANY WADE,
individually, and on behalf of all others similarly situated, v.
JMJ ENTERPRISES, LLC and TRACI JOHNSON MARTIN, Case No.
1:21-cv-00506-LCB-JLW (M.D.N.C.), the Plaintiff asks the Court to
enter an order granting class certification under Federal Rules of
Civil Procedure, Rule 23, on the grounds that she and others
similarly situated were subjected to unlawful pay practices of
their joint employers, JMJ Enterprises, LLC and Traci Johnson
Martin in violation of North Carolina Wage and Hour Act ("NCWHA").
The Plaintiff Wade moves for the following relief:
(1) certification of this action as a class action under
Rule 23(a) and (b)(3) for the North Carolina Wage and
Hour Act claims;
(2) appointing her as class representative; and
(3) appointing L. Michelle Gessner at GessnerLaw, PLLC as
class counsel.
A copy of the Plaintiff's motion dated Jan. 5, 2022 is available
from PacerMonitor.com at https://bit.ly/3GJnt4b at no extra
charge.[CC]
The Plaintiff is represented by:
L. Michelle Gessner, Esq.
GESSNER L AW , PLLC
602 East Morehead Street
G. G. Galloway House
Charlotte, NC 28202
Telephone: (704) 234-7442
Facsimile: (980) 206-0286
E-mail: michelle@mgessnerlaw.com
JP MORGAN: Preliminary Pretrial Order Entered in Radabaugh
----------------------------------------------------------
In the class action lawsuit captioned as JODI RADABAUGH, et al., v.
JPMORGAN CHASE & CO., et al., Case No. 2:22-cv-04356-MHW-CMV (S.D.
Ohio), the Hon. Judge Chelsey M. Vascura entered a preliminary
pretrial order as follows:
-- Rule 26(a)(1) Initial Disclosures
The parties have agreed to make initial disclosures by
January 19, 2023.
-- Jurisdiction and Venue
The Defendants allege that Opt-in Plaintiffs are subject to
Binding Arbitration Agreements, and that in addition,
JPMorgan Chase & Co. is not subject to personal
jurisdiction in Ohio with respect to any opt-ins outside
Ohio, should any join. Any motion related to venue or
jurisdiction must be filed by January 30, 2023.
-- Amendments to Pleadings and/or Joinder of Parties Motions
or stipulations addressing the parties or pleadings, if
any, must be filed no later than January 30, 2023.
-- Motions for conditional collective certification and class
certification must be filed by May 31, 2023.
-- Expert Disclosures
The Deadlines for primary and rebuttal expert reports will
be established following the Court's resolution of
Plaintiffs' forthcoming motions for conditional collective
and class certification.
-- Discovery Deadline and Limitations
The parties may, without further leave of Court, agree to
exceed the limitations on discovery established by the
Federal Rules of Civil Procedure or the Local Rules of this
Court.
-- All deadlines established in this Order will remain in
place unless the parties move for and are granted a
continuance or stay. In the event the parties schedule a
private mediation, they may notify the Court and request to
be excused from participation in court-facilitated
mediation.
-- Other Matters
Any party intending to seek attorney fees and costs as a
prevailing party shall make quarterly reports to the other
party disclosing the to-date accrued attorney's fees and
costs.
The parties submitted their Rule 26(f) Report on January 3, 2023,
and indicated their preference that the Court issue a Preliminary
Pretrial Order without a conference. Accordingly, the January 5,
2023 preliminary pretrial conference is vacated.
This is a putative class and collective action under the Fair Labor
Standards Act, the Ohio Minimum Wage Fair Standards Act and the
Ohio Prompt Pay Act on behalf of Bank Tellers, Personal Bankers,
Lead Associate - Ops, Relationship Bankers, Private Client Bankers,
and Associate Bankers employed by JPMorgan Chase Bank, N.A. who
worked overtime and received at least one Five Key Reward, alleging
that their overtime was not properly calculated because it did not
include awards under the Five Key Reward Program in the calculation
of the regular rate.
JPMorgan is an American multinational financial services company
headquartered in New York City and incorporated in Delaware.
A copy of the Court's order dated Jan. 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3XaFTA2 at no extra charge.[CC]
JUUL LABS: Seeks to Stay All Proceeding Pending Appeal
------------------------------------------------------
In the class action lawsuit RE: JUUL LABS, INC., MARKETING,SALES
PRACTICES, AND PRODUCTS LIABILITY LITIGATION, Case No.
3:19-md-02913-WHO (N.D. Cal.), the Defendants ask the Court to
enter an order staying all proceedings pending resolution of
Altria's appeal from the Court's June 28, 2022 class certification
decision.
On October 24, 2022, the Ninth Circuit Court of Appeals granted
Altria's petition for 3 review of this Court's June 28, 2022 class
certification order pursuant to Federal Rule of Civil Procedure
23(f) ("Rule 23(f)").
The Plaintiffs argue would first address certain yet to be
identified issues that purportedly would be the same regardless of
class certification. But class issues cannot reasonably be divorced
from non-class issues, and Plaintiffs' proposal would 16 only
produce inefficiency, confusion, litigation expenses, and wasted
efforts that would be for naught if the Ninth Circuit reverses or
amends this Court's certification decision. Nor would a stay harm
Plaintiffs.
Juul Labs is an American electronic cigarette company that spun off
from Pax Labs in 2017.
A copy of the Defendants' motion dated Jan. 4, 2022 is available
from PacerMonitor.com at https://bit.ly/3VPqO5S at no extra
charge.[CC]
The Defendants are represented by:
Lauren S. Wulfe, Esq.
John C. Massaro, Esq.
Daphne O'Connor, Esq.
Jason A. Ross, Esq.
David E. Kouba, Esq.
Paul W. Rodney, Esq.
Angela R. Vicari, Esq.
ARNOLD & PORTER KAYE SCHOLER LLP
777 South Figueroa Street, Forty-Fourth Floor
Los Angeles, CA 90017
Telephone: 213-243-4000
Facsimile: 213-243-4199
E-mail: Lauren.Wulfe@arnoldporter.com
John.Massaro@arnoldporter.com
Daphne.OConnor@arnoldporter.com
Jason.Ross@arnoldporter.com
David.Kouba@arnoldporter.com
Paul.Rodney@arnoldporter.com
Angela.Vicari@arnoldporter.com
- and -
Moira K. Penza, Esq.
Beth A. Wilkinson, Esq.
Brian L. Stekloff, Esq.
James M. Rosenthal, Esq.
Matthew R. Skanchy, Esq.
WILKINSON STEKLOFF LLP
130 West 42nd Street, 24th Floor
New York, NY 10036
Telephone: 212-294-8910
E-mail: mpenza@wilkinsonstekloff.com
bwilkinson@wilkinsonstekloff.com
bstekloff@wilkinsonstekloff.com
jrosenthal@wilkinsonstekloff.com
mskanchy@wilkinsonstekloff.com
KDM ANCHOR: Initial Pretrial Conference Order Entered in Smith
--------------------------------------------------------------
In the class action lawsuit captioned as SOPHIA SMITH, individually
and on behalf of all those similarly situated, v. KDM ANCHOR, INC.,
d/b/a ANCHOR, Case No. 3:22-cv-00565-wmc (W.D. Wis.), the Hon.
Judge Stephen L. Crocker entered a preliminary pretrial conference
order as follows:
-- Amendments to the pleadings: January 27, 2023
-- Motion for preliminary class April 17, 2023
certification:
-- Disclosure of liability experts
Plaintiff: April 28, 2023
Defendant: June 30, 2023
-- Disclosure of damages experts:
Plaintiff: May 2, 2023
Defendant: July 14, 2023
-- Motion(s) & Brief(s) To Certify/ July 14, 2023
Decertify Classes:
-- Deadline for filing dispositive January 19, 2024
motions:
-- Discovery Cutoff: May 31, 2024
-- Settlement Letters: May 31, 2024
-- Rule 26(a)(3) Disclosures and June 7, 2024
all motions in limine:
-- Objections: June 28, 2024
-- First Final Pretrial Conference: July 16, 2024
-- Second Final Pretrial Conference: July 23, 2024
-- Trial: July 29, 2024
A copy of the Court's order dated Jan. 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3WQlLDw at no extra charge.[CC]
KENT STATE UNIVERSITY: Class Certification in Waitt Suit Reversed
-----------------------------------------------------------------
In the lawsuit entitled Caitlyn Waitt, et al., Plaintiffs-Appellees
v. Kent State University, Defendant-Appellant, Case No. 22AP-167
(Ohio App.), the Court of Appeals of Ohio, Tenth District, Franklin
County, reverses the order granting the Plaintiffs-Appellees'
motion for class certification.
The matter is an appeal by Defendant-Appellant Kent State
University ("KSU") from a judgment of the Court of Claims of Ohio
granting the motion for class certification filed by
Plaintiffs-Appellees Caitlyn Waitt and Jordan Worrell.
Appellee Waitt is a Pennsylvania resident and student enrolled at
KSU and she paid to attend the Spring 2020 Semester at KSU as an
undergraduate student. She paid out-of-state tuition for the Spring
2020 Semester. Appellee Worrell is an Ohio resident, who paid
tuition and fees to attend KSU for the 2020 spring semester through
loans and payments on her behalf.
The case involves a class action lawsuit on behalf of all persons
who paid tuition and/or fees to attend KSU for an on-campus program
for Spring 2020 Semester and had their access to campus and
on-campus experiences and services interrupted and/or their course
work moved to remote learning due to the novel Coronavirus Disease
2019 ("Covid-19"). Students at KSU paid all or part of the tuition,
or Instructional Fee, for each semester and mandatory fees for each
semester, including a General Fee, Legal Services Fee, Career
Services Fee, Non-Ohio Resident Surcharge, and Arts Fee.
In response to Covid-19, KSU cancelled all face-to-face classes, as
well as all campus events on March 10, 2020, implementing remote
instruction starting on March 16, 2020. Further, KSU also stopped
providing access to campus and many of the services or facilities
the tuition and/or Mandatory Fees were intended to cover.
The Appellees alleged that KSU's failure to provide the services
which tuition and the Mandatory Fees were intended to cover since
March 10, 2020, is a breach of the express and/or implied contract
between KSU and the Appellees and the Class, and is unjust. They
further contend they do not challenge KSU's compliance with the
Covid-19 orders that were in place in the state of Ohio nor the
quality of KSU's remote learning program; rather, the Appellees
challenge KSU's decision to retain monies they and the Class paid
while refusing to offer any refunds, provide any discounts, or
apply any credit to the accounts of the Appellees and the Class
when KSU failed to provide the on-campus educational experiences
and services that it promised.
On June 17, 2020, Appellee Waitt filed a complaint in the Court of
Claims against KSU. On Aug. 14, 2020, she filed an amended
complaint against KSU. On May 24, 2021, Appellee Waitt and Appellee
Worrell filed a second amended class action complaint against KSU.
The Appellees' complaint asserted causes of action for breach of
contract (express or implied), and unjust enrichment (as an
alternative to the breach of contract claim).
On Oct. 22, 2021, KSU filed a memorandum in opposition to the
Appellees' motion for class certification. On Dec. 22, 2021, the
Court of Claims held an oral, non-evidentiary hearing on the
motion.
In a decision filed Feb. 11, 2022, the Court of Claims held that
the Appellees' proposed class, as stated at the class-certification
hearing, satisfied the requirements for class certification by a
preponderance of the evidence. The proposed class was defined as:
"All undergraduate students who paid an instructional fee,
general fee, or non-resident fee for the Spring 2020
semester at [KSU] when classes were moved to remote
learning. Excluded from the class are those undergraduate
students who did not pay any fees."
On appeal, KSU sets forth the following three assignments of error
for this Court's review:
A. The trial court erred by certifying three separate classes,
each of which contains numerous members, who have sustained
no injury at all;
B. The trial court erred by refusing to reject the Plaintiffs'
expert reports--which contain the Plaintiffs' only common
methodology for determining which members of the classes
have suffered an injury in fact and which members of the
classes have not—because those reports are meaningless in
the absence of the survey they have proposed but never
conducted. The trial court also erred by refusing to
consider KSU's expert reports, which fully rebut the
conjoint analysis hypothesis the Plaintiffs' experts
attempt to make; and
C. The trial court erred by holding that common issues
predominate over individual issues and that a class action
is superior to individual actions.
Judge Keith McGrath, writing for the Panel, notes that KSU's
assignments of error are interrelated and will be considered
together. Under these assignments of error, KSU generally
challenges the decision of the Court of Claims to grant the
Appellees' motion for class certification, including arguments
regarding the methodology employed by their experts, and that
court's analysis of the issues of commonality and superiority.
In Madyda v. Ohio Dept. of Pub. Safety, 10th Dist. No. 20AP-217,
2021-Ohio-956, Para. 10, the Appellate Court cited the seven
prerequisites that must be met under Ohio law before a class may be
properly certified: (1) an identifiable class must exist and the
definition of the class must be unambiguous; (2) the named
plaintiff representatives must be members of the class; (3) the
class must be so numerous that joinder of all the members is
impracticable; (4) there must be questions of law or fact common to
the class; (5) the claims or defenses of the representatives must
be typical of the claims or defenses of the class; (6) the
representative parties must fairly and adequately protect the
interests of the class; and (7) one of the three requirements for
certification set forth in Civ.R. 23(B) must be met.
KSU has contested the first prerequisite (i.e., arguing the
proposed class is unidentifiable and overly broad), and further
contends the Court of Claims did not rigorously analyze whether the
damages alleged by the Appellees are ascertainable on a class-wide
basis. Lastly, KSU argues the Appellees failed to meet their burden
on the question of commonality (Civ.R. 23(A)(2)), as well as the
predominance and superiority requirements contained in Civ.R.
23(B)(3).
The Appellate Court finds KSU has demonstrated the Court of Claims
abused its discretion in failing to conduct a rigorous analysis as
required for class certification.
In a recent decision by the Appellate Court, involving the same
Plaintiffs' experts and same methodology as presented in the
instant case, the Appellate Court found that "the appellees'
market-based damage theory and their experts' proposed analysis
raises significant questions with respect to the commonality and
predominance requirements for class certification," citing Weiman
v. Miami Univ., 10th Dist. No. 22AP-36, 2022-Ohio-4294, Para. 18.
The Appellate Court finds the same "significant questions" at issue
in this case.
In the present case, as in Weiman, KSU contested whether the
Appellees presented sufficient proof of actual injury amenable to
resolution on a class-wide basis, and, thus, it was incumbent on
the trial court to rigorously analyze at the class certification
stage the validity of the Appellees' theory of damage and their
experts' proposed analysis, even though that analysis would overlap
in part with the merits of the Appellees' claims.
Here, Judge McGrath says, a review of the transcript of the
non-evidentiary oral hearing reflects the Court of Claims, similar
to the circumstances in Weiman, did not conduct the required
rigorous analysis of the Appellees' theory of damages to determine
if all class members suffered some injury.
The Appellate Court also finds, among other things, applicable
language in Weiman that "even though the trial court's decision
expressly found that appellees satisfied all the Civ.R. 23
requirements, the transcript of the hearing demonstrates that the
trial court did not conduct a rigorous analysis of the commonality
and predominance factors," and the trial court "failed to
rigorously analyze whether appellees' theory of damages established
that all members of the proposed class suffered some injury as
required by Felix, and whether common issues predominate over
individual issues" (Felix v. Ganley Chevrolet, Inc., 145 Ohio St.3d
329, 2015-Ohio-3430, Para. 25).
Accordingly, the Appellate Court finds merit with KSU's second and
third assignments of error (designated in KSU's brief as
assignments of error "B" and "C," respectively) challenging the
Court of Claims' rigorous analysis of the Civ.R. 23 requirements,
and the Appellate Court sustains those assignments of error.
Further, because the error "permeated the trial court's reasoning
throughout its decision," and in light of the Appellate Court's
disposition of the second and third assignments of error, the
Appellate Court finds the issues raised under the first assignment
of error (designated in KSU's brief as assignment of error "A") to
be moot at this juncture.
Based upon the foregoing, the Appellate Court rules that KSU's
assignments of error B and C are sustained, assignment of error A
is rendered moot, the judgment of the Court of Claims of Ohio is
reversed, and this matter is remanded to that court for further
proceedings consistent with this decision and in accordance with
law.
Judgment reversed and cause remanded.
LUPER SCHUSTER, P.J., and KLATT, J., concur.
A full-text copy of the Court's Decision dated Dec. 29, 2022, is
available at https://tinyurl.com/mu689vtw from Leagle.com.
On brief: Lynch Carpenter, LLP, and Jae K. Kim; The Law Offices of
Simon & Simon, and James L. Simon --
jamessimon@clevelanddivorce.net -- Bursor & Fisher, P.A., and Josh
Arisohn -- jarisohn@bursor.com -- Climaco Wilcox PECA & Garofoli
Co., LPA, and Scott D. Simpkins -- sdsimp@climacolaw.com -- for the
Appellees. Argued: Jae K. Kim.
On brief: Dave Yost -- dave.yost@ohioattorneygeneral.gov --
Attorney General, Randall Knutti --
randall.knutti@ohioattorneygeneral.gov -- Peter Demarco --
Peter.Demarco@OhioAGO.gov -- Jeanna Jacobus and Lindsey Grant -
Lindsey.Grant@OhioAGO.gov -- for the Appellant. Argued: Peter
Demarco.
KIA AMERICA: Brady Suit Transferred to C.D. California
------------------------------------------------------
The case styled as Ann Brady, Leah Price, on behalf of herself and
all others similarly situated v. Kia America, Inc., Hyundai Motor
America and Hyundai Kia America Technical Center, Inc., Case No.
4:22-cv-00252 was transferred from the U.S. District Court for the
Southern District of Iowa, to the U.S. District Court for the
Central District of California on Dec. 22, 2022.
The District Court Clerk assigned Case No. 8:22-cv-02294-JVS-KES to
the proceeding.
The nature suit is stated as Prop. Damage Prod. Liability for
Product Liability.
Kia America, Inc. -- http://www.kiamedia.com/-- provides a wide
range of cars that meet your lifestyle.[BN]
The Plaintiffs are represented by:
Jay Madison Smith, Esq.
SMITH AND MCELWAIN FIRM
505 5th Street Suite 530
PO Box 1194
Sioux City, IA 51102
Phone: (712) 255-8094
Fax: (712) 255-3825
Email: smitmcel@aol.com
- and -
Chelsea McClain, Esq.
Jonathan M. Soper, Esq.
HUMPHREY FARRINGTON AND MCCLAIN PC
221 West Lexington Suite 400
PO Box 900
Independence, MO 64051
Phone: (816) 836-5050
Fax: (816) 836-8966
Email: cmp@hfmlegal.com
jms@hfmlegal.com
The Defendants are represented by:
Michael R. Reck, Esq.
Christopher J. Jessen, Esq.
BELIN MCCORMICK PC
666 Walnut Street Suite 2000
Des Moines, IA 50309-3989
Phone: (515) 283-4645
Fax: (515) 558-0645
Email: mrreck@belinmccormick.com
cjessen@belinmccormick.com
- and -
Peter J. Brennan, Esq.
JENNER AND BLOCK LLP
One IBM Plaza
353 North Clark Street
Chicago, IL 60654
Phone: (312) 222-9350
Fax: (312) 527-0484
Email: pbrennan@jenner.com
KIA AMERICA: Hall Suit Transferred to C.D. California
-----------------------------------------------------
The case styled as Amber Hall, on behalf of herself and all others
similarly situated v. Kia America, Inc., Hyundai Motor America and
Hyundai Kia America Technical Center, Inc., Case No. 4:22-cv-03155
was transferred from the U.S. District Court for the District of
Nebraska, to the U.S. District Court for the Central District of
California on Dec. 22, 2022.
The District Court Clerk assigned Case No. 8:22-cv-02299-JVS-KES to
the proceeding.
The nature suit is stated as Motor Vehicle Product Liability.
Kia America, Inc. -- http://www.kiamedia.com/-- provides a wide
range of cars that meet your lifestyle.[BN]
The Plaintiff is represented by:
Andrew K. Smith, Esq.
Jonathan Mesle Soper, Esq.
Kevin Daniel Stanley, Esq.
HUMPHREY FARRINGTON AND MCCLAIN PC
221 West Lexington Avenue, Suite 400
Independence, MO 64051
Phone: (816) 836-5050
Fax: (816) 836-8966
Email: aks@hfmlegal.com
jms@hfmlegal.com
kds@hfmlegal.com
L AND R AUTO: Colquitt Sues Over Unpaid Minimum, Overtime Wages
---------------------------------------------------------------
Anita Colquitt, on behalf of herself and all others similarly
situated, and on behalf of the general public v. L AND R AUTO
PARKS, INC., a California Corporation, and DOES 1 through 10,
inclusive, Case No. 23STCV00285 (Cal. Super. Ct., Jan. 5, 2023), is
brought pursuant to Labor Code as a result of the Defendants
failure to pay minimum and overtime wages.
The Plaintiff and Defendant's California employees were routinely
unable, and not authorized to take their 10-minute rest periods and
were also unable to take an uninterrupted 30-minute meal break for
every shift they worked. Plaintiff and Defendants' California
employees were required to work off the clock for Defendant.
Plaintiff and Defendant California employees were asked to perform
tasks prior to clocking in without being compensated for it.
Defendants did not compensate Plaintiff and Defendants' California
employees if these tasks were completed outside of her regular work
hours. Plaintiff, on behalf of himself and all other California
employees of Defendant claims that Defendant has failed to pay all
overtime wages due to non-exempt employees. Defendant pays their
employees bonuses and commissions which are not included in the
employees regular rate of pay for the purposes of computing the
proper overtime rate. As a result, employees are not properly
compensated for work performed in excess of 8 hours in a workday
and work performed in excess of 40 hours in a workweek at a rate of
no less than one and one-half times the regular rate of pay.
The Defendants failed to pay all wages earned to Plaintiff and the
Defendant's California employees as a result of the unlawful
employment policies and practices. As a result of these practices,
the Plaintiff and the Defendant's California employees were
underpaid for hours worked, including overtime and penalty wages,
and this underpayment resulted in a failure to pay all wages owed
twice per month. Due to this failure, the Defendants are liable
under Labor Code for failure to pay wages as required by law, says
the complaint.
The Plaintiff was employed by the Defendants as a non-exempt,
hourly employee in California.
L AND R AUTO PARKS, INC., is a California Corporation doing
business in Los Angeles, California.[BN]
The Plaintiff is represented by:
Roman Otkupman, Esq.
Nidah Farishta, Esq.
OTKUPMAN LAW FIRM, A LAW CORPORATION
5743 Corsa Ave., Suite 123
Westlake Village, CA 91362
Phone: (818) 293-5623
Facsimile: (888) 850-1310
Email: Roman@OLFLA.com
Nidah@OLFLA.com
LIMITLESS PCS: Preliminary Pretrial Order Entered in Horn Suit
--------------------------------------------------------------
In the class action lawsuit captioned as HALEY HORN, v. LIMITLESS
PCS, INC., Case No. 2:22-cv-03703-EAS-CMV (S.D. Ohio), the Hon.
Judge Chelsey M. Vascura entered a preliminary pretrial order as
follows:
-- The parties have agreed to make initial disclosures by
January 9, 2023.
-- Amendments to Pleadings and/or Joinder of Parties
Motions or stipulations addressing the parties or
pleadings, if any, must be filed no later than March 15,
2023.
-- The Plaintiff's motion for conditional certification of
FLSA claims must be filed no later than June 5, 2023.
-- The Defendants shall file their opposition to conditional
certification no later than June 30, 2023.
-- The Plaintiff shall file her reply in support of
conditional certification, if any, by July 14, 2023.
-- The Plaintiff's motion for class certification of OMWFSA
claims must be filed no later than July 31, 2023.
A copy of the Court's order dated Jan. 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3Qkf0HR at no extra charge.[CC]
M AND S ENTERPRISE: Townsend FCRA Suit Removed to C.D. California
-----------------------------------------------------------------
The case styled as Edward Townsend, individually and on behalf of
all others similarly situated v. M and S Enterprise LLC, Amazon.com
Services LLC, Does 1 to 100, inclusive, Case No. 22STCV37399 was
removed from the Los Angeles County Superior Court, to the U.S.
District Court for the Central District of California on Jan. 4,
2023.
The District Court Clerk assigned Case No. 2:23-cv-00038-FLA-MRW to
the proceeding.
The lawsuit is brought over alleged violation of the Fair Credit
Reporting Act.
M And S Enterprise LLC is a licensed and DOT registred trucking
company running freight hauling business from Los Angeles,
California.[BN]
The Plaintiff is represented by:
James M. Treglio, Esq.
Mark D. Potter, Esq.
POTTER HANDY, LLP
100 Pine Street Suite 1250
San Diego, CA 92111
Phone: (858) 375-7385
Fax: (888) 422-5191
Email: jimt@potterhandy.com
mark@potterhandy.com
The Defendants are represented by:
Lauren J. Katunich, Esq.
RAINES FLEDMAN LLP
1800 Avenue of the Stars 12th Floor
Los Angeles, CA 90067-1623
Phone: (310) 440-4100
Fax: (310) 860-2622
Email: lkatunich@raineslaw.com
- and -
Jessica Rose Ellis Lohr, Esq.
TROUTMAN PEPPER HAMILTON SANDERS LLP
11682 El Camino Real Suite 400
San Diego, CA 92130-2092
Phone: (858) 509-6000
Fax: (858) 509-6040
Email: jessica.lohr@troutman.com
- and -
Andrew P Frederick, Esq.
MORGAN LEWIS AND BOCKIUS LLP
1400 Page Mill Road
Palo Alto, CA 94304
Phone: (650) 843-4000
Fax: (650) 843-4001
Email: andrew.frederick@morganlewis.com
- and -
Kassia Ann Stephenson, Esq.
MORGAN LEWIS AND BOCKIUS LLP
Spear Street Tower
One Market
San Francisco, CA 94105-1596
Phone: (415) 442-1000
Fax: (415) 442-1001
Email: kassia.stephenson@morganlewis.com
MAHA INC: N.D. Illinois Refuses to Certify Class in Kim Wage Suit
-----------------------------------------------------------------
In the case, HYUN JIN KIM, Plaintiff v. MAHA, INC., d/b/a MIDORI
JAPANESE RESTAURANT and BONG HEE MA, Defendants, Case No. 22 C 2375
(N.D. Ill.), Judge Virginia M. Kendall of the U.S. District Court
for the Northern District of Illinois, Eastern Division, denies
without prejudice Kim's motion to certify a collective-action
class.
Kim alleged that the Defendants failed to pay wages and overtime
compensation to her and other employees in violation of the Fair
Labor Standards Act ("FLSA"), the Illinois Minimum Wage Law
("IMWL"), the Illinois Wage Payment and Collection Act ("IWPCA"),
and the City of Chicago Minimum Wage Ordinance.
Maha operates Midori Japanese Restaurant in Chicago, and Bong Hee
Ma is the corporation's President. The Defendants employed Kim as a
server at Midori from approximately 2002 until April 30, 2022. She
took customers' orders, served food, and processed payments. Kim
claims that throughout her 20 years of employment, the Defendants
never paid her any wages other than tips.
Kim alleges she worked at Midori over 40 hours per week at several
points. For example, she worked about 11.5 hours per day for five
or six days each week from May 4, 2019, until March 2020. She also
worked 7 hours per day every day of the week with no days off from
April 1, 2021, until Oct. 31, 2021. The Defendants never paid her
any "house pay" during her entire period of employment. Neither did
they pay her one-and-a-half times the tipped employee's minimum
wage rate for hours worked beyond 40 in a workweek.
According to Kim, the Defendants never paid Midori's other servers
any wages besides tips -- neither the tipped employee's minimum
wage nor overtime compensation for working more than 40 hours. The
Defendants allegedly deducted 18% of servers' credit card tips as
payroll tax withholding. She says they also often gave some portion
of servers' tips to kitchen workers.
Kim sued the Defendants for violating the FLSA, the IMWL, the
IWPCA, and Wage Ordinance for failing to pay minimum wages and
overtime compensation. She then moved, pursuant to Section 216(b)
of the FLSA, for certification of a collective-action lawsuit and
accompanying implementation directives. She attached her affidavit
in support of her motion. The Defendants oppose conditional
collective-action certification.
Kim moves to certify a collective-action class pursuant to Section
216(b), asserting violations of the FLSA's minimum wage and
overtime compensation provisions. She proposes as the class of
members "similarly situated" to herself "all employees of Maha,
Inc. DBA Midori Japanese Restaurant who worked as manual labor
workers such as server, busboy, kitchen worker, sushi chef who was
not paid minimum and/or overtime wage at any time between May 5,
2019 and the present."
To support the putative class, Kim attached only her own affidavit,
in which she details her own hours worked with deficient pay and
attests to her personal knowledge about other employees' wages. She
provided no additional evidence.
Judge Kendall finds that Kim has not yet made the "modest factual
showing" necessary for conditional certification of the proposed
class. Though she "personally knows" and names other Midori servers
whom the defendants allegedly paid only tips and no minimum or
overtime wages, she provides no corroboration of these other
servers' experiences. There is even less support for her inclusion
of "busboys, kitchen workers, and sushi chefs" within the putative
class. She gives no details about these other workers or her basis
of knowledge. Without more, Kim's statements about other workers'
experiences are "unsupported assertions" insufficient to
demonstrate a company-wide policy that affected all proposed
collective action members in a similar way.
This is not Kim's only chance to pursue conditional certification
of her FLSA claims in a collective action. She may try again, with
the benefit of discovery to obtain sufficient evidence of a
collective to warrant conditional certification and the notice to
opt in. But on this scant record, Judge Kendall holds that Kim has
not met her burden to show other potential plaintiffs were also
victims of an alleged company plan or policy that violated the
FLSA. She has failed to supply the Court with affidavits from other
servers or staff and wants the Court to simply rely on her own
assertion.
For these reasons, Kim's motion for conditional certification of
her collective-action FLSA claims and authorization to issue notice
to prospective plaintiffs is denied without prejudice.
A full-text copy of the Court's Jan. 3, 2023 Memorandum Opinion &
Order is available at https://tinyurl.com/yhz59462 from
Leagle.com.
MALLINCKRODT ARD: Amended Scheduling Order Entered in Steamfitters
------------------------------------------------------------------
In the class action lawsuit captioned as STEAMFITTERS LOCAL UNION
NO. 420, Individually and on behalf of all others similarly
situated v. MALLINCKRODT ARD, LLC and UNITED BIOSOURCE LLC, Case
No. 2:19-cv-03047-BMS (E.D. Pa.), the Hon. Judge Berle M. Schiller
entered an amended scheduling order as follows:
1. Mallinckrodt ARD LLC shall, on or before Friday, January
20, 2023, file a supplemental brief with respect to its
pending motion to transfer this action to the United
States District Court for the District of Delaware
Responses to Mallinckrodt's supplemental brief on the
motion to transfer, if any, shall be filed on or before
Friday, February 3, 2023.
2. On or before Friday, February 3, 2023, the parties shall
file briefs (not longer than 20 pages) with citations to
relevant legal authority addressing their respective
positions with respect to whether Plaintiffs should
stipulate to the dismissal of some or all of their claims
against Mallinckrodt.
Responses (not longer than 10 pages) to those briefs shall
be filed on or before Friday, February 17, 2023.
Alternatively, any stipulation to dismiss Plaintiffs'
claims against Mallinckrodt (or any portion of those
claims) shall be filed on or before Friday, February 3,
2023.
3. The parties shall, on or before Friday, February 24, 2023
negotiate and submit to the Court a joint agreed-upon
proposed Protective Order, or, if they cannot agree on all
terms, then in lieu of an agreed-upon Protective Order,
the parties shall submit a proposed Protective Order
identifying areas of agreement and areas of disagreement
and a brief explanation of the parties' positions
regarding each area of disagreement.
4. The parties shall, on or before Friday, February 24, 2023
negotiate and submit to the Court a joint agreed-upon
proposed protocol for production of electronically stored
information ("ESI"), or, if they cannot agree on all
terms, then in lieu of an agreed-upon ESI Protocol, the
parties shall submit a proposed ESI Protocol identifying
areas of agreement and areas of disagreement and a brief
explanation of the parties' positions regarding each area
of disagreement.
5. The parties shall, on or before Friday, February 24, 2023,
file briefs (not longer than 25 pages) with citations to
relevant legal authority addressing their respective
positions with respect to whether it is appropriate to
bifurcate these proceedings under Federal Rule of Civil
Procedure 42(b) for a determination of the collateral
estoppel effects of the Bankruptcy Court's decision on
Plaintiffs' claims, if any, prior to their resolution on
the merits.
The parties shall file their respective responses (not
longer than 15 pages) to the briefs on the question of
bifurcation on or before Friday, March 10, 2023.
6. The Court will set a schedule for any further discovery,
motions for summary judgment, class certification, a
hearing for class certification, and a date for trial, if
necessary, after resolution of the pending motion to
transfer and after a determination with respect to the
appropriateness of bifurcation.
If all parties agree a settlement conference would be
productive, counsel for Plaintiffs shall telephone
Chambers to schedule a settlement conference with a
Magistrate Judge. The Court also reminds the parties of
their responsibility to attempt to resolve any differences
amicably before seeking costly and time-consuming judicial
intervention.
Mallinckrodt develops and commercializes novel central nervous
system-focused therapeutics.
A copy of the Court's order dated Jan. 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3WNkFbH at no extra charge.[CC]
MDL 2433: Matheny Suit Consolidated in Water Contamination Row
--------------------------------------------------------------
In the water contamination litigation captioned IN RE: E. I. du
Pont de Nemours and Company C-8 Personal Injury Litigation, MDL No.
2433, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial
Panel on Multidistrict Litigation transfers the case captioned
Matheny v. E. I. Du Pont de Nemours and Company, et al., (C.A. No.
2:22−00320, S.D. W.V.) to the U.S. District Court for the
Southern District of Ohio and, with the consent of that court,
assigned it to Judge Edmund A. Sargus, Jr., for inclusion in the
coordinated or consolidated pretrial proceedings.
Defendants E. I. du Pont de Nemours and Company and The Chemours
Company moved to vacate the order that conditionally transferred
the Matheny action to the Southern District of Ohio for inclusion
in MDL No. 2433. Plaintiff in Matheny and plaintiffs' Co-Lead
Counsel in the MDL opposed the motion.
Defendants argued that pretrial proceedings in MDL No. 2433 are
complete and that the panel should cease transfer of tag-alongs to
the MDL. This litigation at its height encompassed nearly 3,700
actions and involved five trials and hundreds of pretrial rulings
by the transferee court. In early 2017, the parties reached a
global settlement. A second wave of actions followed that
settlement, most of which were resolved in a second settlement in
2021. At present, there are no active pretrial proceedings in the
MDL, and an appeal of the final trial verdict recently was
decided.
Defendants further contend that because all the actions in this MDL
are resolved, there will be no benefit to further transfer of
tag-along actions. The panel held that this argument has some
merit, but it is not persuaded that the point where transfer of
tag-along actions to the MDL should cease has been reached.
Matheny, like the actions previously transferred to MDL No. 2433,
involves personal injury claims arising from plaintiff's alleged
ingestion of drinking water contaminated with a chemical, C-8 or
also known as perfluorooctoanoic acid (PFOA) or ammonium
perfluorooctanoate (APFO), discharged from DuPont's Washington
Works Plant near Parkersburg, West Virginia.
Moreover, whether Matheny in fact is the final action in this
litigation is unclear, notes the panel. Given the procedural
posture and history of MDL No. 2433, the panel is not inclined to
gainsay the transferee court's judgment as to when continued
pretrial proceedings in this litigation no longer serve the goals
of 28 U.S.C. Section 1407. Should the transferee court determine
that further adjudication of the C-8 claims should occur in the
transferor district, it is free to suggest remand of any remaining
cases under Section 1407.
Therefore, after considering the argument of counsel, the panel
found that the Matheny action involves common questions of fact
with the actions transferred to MDL No. 2433, and that transfer
will serve the convenience of the parties and witnesses and promote
the just and efficient conduct of the litigation. Specifically, the
actions in MDL No. 2433 share factual questions arising from
allegations that plaintiffs were injured by ingesting drinking
water contaminated with C-8 that was discharged from DuPont's
Washington Works Plant. Matheny will involve substantially similar
allegations, and transfer of this action will eliminate duplicative
discovery, prevent inconsistent pretrial rulings and conserve the
resources of the parties, their counsel and the judiciary, adds the
panel.
A full-text copy of the Court's December 13, 2022 Order is
available at bit.ly/3Gzytjk
MDL 2846: Blaurock Suit Consolidated in Hernia Mesh Product Row
---------------------------------------------------------------
In the hernia mesh product liability litigation captioned IN RE:
Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Products
Liability Litigation, MDL No. 2846, Judge Karen K. Caldwell,
Chairperson of the U.S. Judicial Panel on Multidistrict Litigation,
transfers the case captioned Blaurock v. Southwind Surgical Group,
et al.," (C.A. No. 6:22−01196, D. Kan.) to the U.S. District
Court for the Southern District of Ohio and, with the consent of
that court, assigned it to Judge Edmund A. Sargus, Jr., for
inclusion in the coordinated or consolidated pretrial proceedings.
Plaintiff and healthcare defendants Brandon S. Cunningham, M.D.,
Alaina D. Dressler, P.A., and Centurion of Kansas, LLC moved to
vacate the order that conditionally transferred the action to the
Southern District of Ohio for inclusion in MDL No. 2846. The
healthcare defendants alternatively requested the panel stay its
order pending rulings on their motions to dismiss in the transferor
court. Defendant C.R. Bard, Inc. opposed the motions or,
alternatively, requested severance and remand of the medical
malpractice claims against the healthcare defendants and transfer
of the product liability claims against Bard to the MDL.
After considering the argument of counsel, the panel found that
this action involves common questions of fact with the actions
transferred to MDL No. 2846, and that transfer will serve the
convenience of the parties and witnesses and promote the just and
efficient conduct of the litigation.
The actions encompassing MDL No. 2846 involve factual questions
arising from allegations that defects in defendants' polypropylene
hernia mesh products can lead to complications when implanted in
patients including, inter alia, adhesions, damage to organs and
infections. Plaintiff here alleges he was implanted with a Bard
hernia mesh product and, consequently, the mesh tore loose and
required revision surgery. He alleges his surgeons incorrectly
installed the hernia mesh and should have foreseen the probability
of mesh failure. He also alleges he was not treated for his hernia
for several years, and was forced to work beyond his abilities
while incarcerated.
Movants do not dispute that plaintiff's claim against Bard shares
questions of fact and law with the actions in MDL No. 2846. But the
moving healthcare defendants argue that (1) the action is unique
because plaintiff also brings medical malpractice claims against
his healthcare providers, (2) the panel should allow the District
of Kansas to rule on their pending motions to dismiss and (3) the
transfer will cause them delay and prejudice. Plaintiff also argues
that subject matter jurisdiction is lacking in this case.
However, the panel is not persuaded that the existence of
plaintiff's medical malpractice claims should preclude transfer,
and have held that "MDLs involving medical devices often include
similar medical negligence claims against healthcare defendants."
Moreover, the panel finds that the healthcare defendants' claims of
delay and prejudice are not persuasive. The panel long has held
that, while transfer of a particular action might inconvenience
some parties to that action, such a transfer often is necessary to
further the expeditious resolution of the litigation taken as a
whole. The healthcare defendants can present their motions to
dismiss to the transferee court, it added.
"[J]urisdictional objections generally do not present an impediment
to transfer," the panel ruled.
A full-text copy of the Court's December 13, 2022 Order is
available at bit.ly/3GD2mPN
METROPOLITAN ASSOCIATES: Lenten Sues Over Failure to Secure PII
---------------------------------------------------------------
Kathryn Lenten, on behalf of herself and all others similarly
situated v. METROPOLITAN ASSOCIATES LIMITED PARTNERSHIP, Case No.
2:22-cv-01540-JPS (E.D. Wis., Dec. 22, 2022), is brought arising
out of the recent data breach ("Data Breach") involving the
Defendant for its failure to properly secure and safeguard the
personally identifiable information that it collected and
maintained as part of its regular business practices, including,
but not limited to, names and Social Security numbers (collectively
"PII").
Former and current Metropolitan tenants––as well as current and
former Metropolitan lease applicants––are required to entrust
Defendant with sensitive, non-public PII, without which Defendant
could not perform its regular business activities, in order to
apply for a Metropolitan lease. Defendant retains this information
for at least many years and even after the consumer relationship
has ended. By obtaining, collecting, using, and deriving a benefit
from the PII of Plaintiff and Class Members, Defendant assumed
legal and equitable duties to those individuals to protect and
safeguard that information from unauthorized access and intrusion.
On March 29, 2022, Defendant became aware of suspicious activity on
its networks. The Defendant proceeded to investigate the nature and
scope of the suspicious activity and subsequently concluded that
"an unauthorized actor may have gained access to certain computer
systems within the Defendant's network between March 26, 2022 to
March 29, 2022" and further admitted that the "unauthorized actor
may have viewed or taken information stored on those systems."
According to Defendant's Notice of Data Security Event letter (the
"Notice Letter"), the compromised PII included individuals' names
and Social Security numbers. The Defendant's investigation
concluded that the PII compromised in the Data Breach included
Plaintiff's and approximately 18,000 other individuals'
information.
The Defendant failed to adequately protect Plaintiff's and Class
Members PII––and failed to even encrypt or redact this highly
sensitive information. This unencrypted, unredacted PII was
compromised due to Defendant's negligent and/or careless acts and
omissions and its utter failure to protect customers' sensitive
data. Hackers targeted and obtained Plaintiff's and Class Members'
PII because of its value in exploiting and stealing the identities
of Plaintiff and Class Members. The present and continuing risk to
victims of the Data Breach will remain for their respective
lifetimes.
Moreover, after learning of the Data Breach, the Defendant waited
over seven months (from March 29, 2022, to November 7, 2022) to
notify the Plaintiff and Class Members of the Data Breach and/or
inform them that their PII was compromised. During this time,
Plaintiff and Class Members were unaware that their sensitive PII
had been compromised, and that they were, and continue to be, at
significant risk of identity theft and various other forms of
personal, social, and financial harm. In breaching its duties to
properly safeguard customers' PII and give customer timely,
adequate notice of the Data Breach's occurrence, the Defendant's
conduct amounts to negligence and/or recklessness and violates
federal and state statutes, says the complaint.
The Plaintiff provided her PII to Defendant on the condition that
it be maintained as confidential and with the understanding that
the Defendant would employ reasonable safeguards to protect her
PII.
The Defendant is a Wisconsin-based property management company that
has leased "housing in the greater Milwaukee area since 1954."[BN]
The Plaintiff is represented by:
Gary M. Klinger, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
227 W. Monroe Street, Suite 2100
Chicago, IL 60606
Phone: (866) 252-0878
Email: gklinger@milberg.com
- and -
David K. Lietz, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
5335 Wisconsin Ave. NW, Suite. 440
Washington D.C. 20015
Phone: (866) 252-0878
Email: dlietz@milberg.com
MOVADO GROUP: Cody Suit Removed to E.D. Arkansas
------------------------------------------------
The case styled as Annette Cody, individually and on behalf of all
others similarly situated v. Movado Group, Inc. doing business as:
Movado.com; Does 1 through 10 Inclusive; Case No.
37-02022-00047956-CU-MTCTL was removed from the Superior Court of
California, County of San Diego, to the U.S. District Court for the
Eastern District of Arkansas on Jan. 4, 2023.
The District Court Clerk assigned Case No. 3:23-cv-00015-H-KSC to
the proceeding.
The nature of suit is stated as Other Contract.
Movado -- https://www.movadogroup.com/ -- is an American luxury
watchmaker. It is best known for its Museum Watch.[BN]
The Plaintiff is represented by:
Scott J. Ferrell, Esq.
Victoria C. Knowles, Esq.
PACIFIC TRIAL ATTORNEYS APC
4100 Newport Place Drive Suite 800
Newport Beach, CA 92660
Phone: (949) 706-6464
Fax: (949) 706-6469
Email: sferrell@pacifictrialattorneys.com
vknowles@pacifictrialattorneys.com
The Defendants are represented by:
Jennifer Marie Oliver, Esq.
BUCHANAN INGERSOLL & ROONEY LLP
600 West Broadway, Suite 1100
San Diego, CA 92101
Phone: (619) 685-1990
Email: jennifer.oliver@bipc.com
- and -
Peter Stephen Russ, Esq.
BUCHANAN INGERSOLL & ROONEY PC
One Oxford Centre-20th Floor
301 Grant Street
Pittsburgh, PA 15219
Phone: (412) 562-8939
Fax: (412) 562-1041
Email: peter.russ@bipc.com
MY RIDEMAKER: Toro Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against My Ridemaker, LLC.
The case is styled as Jasmine Toro, on behalf of herself and all
others similarly situated v. My Ridemaker, LLC, Case No.
1:23-cv-00051 (S.D.N.Y., Jan. 4, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
My Ridemaker, LLC is a California Limited-Liability Company.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
NEW DOMINION: Order Striking Griggs' Class Allegations Affirmed
---------------------------------------------------------------
In the lawsuit styled LISA GRIGGS and APRIL MARLER, on behalf of
themselves and other Oklahoma citizens similarly situated,
Plaintiffs/Appellants v. NEW DOMINION, LLC; KIRKPATRICK OIL
COMPANY, INC.; RAINBO SERVICE CO.; D&B OPERATING LLC; MID-CON
ENERGY OPERATING, LLC; ORCA OPERATING CO., LLC; TERRITORY
RESOURCES, LLC; DEVON ENERGY PRODUCTION COMPANY, L.P.; TNT
OPERATING COMPANY, INC.; WHITE OPERATING COMPANY; DRYES CORNER,
LLC; WHITE STAR PETROLEUM, LLC; EQUAL ENERGY US INC.; M M ENERGY,
INC.; and WICKLUND PETROLEUM CORPORATION, Defendants/Appellees,
Case No. 119185 (Okla. App.), the Court of Civil Appeals of
Oklahoma, Division II, affirms the trial court order granting the
motions to strike class allegations.
Plaintiffs Lisa Griggs and April Marler, on behalf of themselves
and other Oklahoma citizens similarly situated, appeal the trial
court order granting the motions to strike the class allegations in
the Plaintiffs' class action petition. The motions were filed by
Defendants New Dominion LLC, Kirkpatrick Oil Company, Inc., Rainbo
Service Co., D&B Operating LLC, Mid-Con Energy Operating, LLC, Orca
Operating Co., LLC, Territory Resources, LLC, Devon Energy
Production Company, L.P., TNT Operating Company, Inc., White
Operating Company, Dryes Corner, LLC, White Star Petroleum, LLC,
Equal Energy US Inc., M M Energy, Inc., and Wicklund Petroleum
Corporation.
The Plaintiffs brought this class action lawsuit alleging the
Defendants' disposal of wastewater from fracking operations
triggered several earthquakes resulting in extensive damage to real
and personal property across the areas in question. The Plaintiffs'
first amended class action petition filed Oct. 24, 2017, seeks
certification of a plaintiff class comprised "of a class of
Oklahoma citizens owning properties within Logan, Payne, Lincoln,
Creek, Oklahoma, Canadian, Kingfisher, Garfield, and Noble counties
during the dates of the induced seismicity between March 30, 2014
to present." The Plaintiffs identify nine groups of earthquakes
clustered according to location which they allege were induced by
wastewater disposal injection into Oklahoma's Arbuckle formation
and which have caused physical and emotional damage to the
plaintiff class.
Among other motions and pleadings over the course of the
litigation, a number of the Defendants filed motions to strike the
class allegations in the Plaintiffs' first amended petition which
are the motions addressed in the order being appealed. These
Defendants argued the class allegations should be stricken for
failure to meet the requirements delineated in 12 O.S. Section
2023. They also asserted that class certification is usually
inappropriate in environmental mass tort cases because common
issues can be overshadowed by individual issues making it
especially difficult to meet Section 2023's commonality and
predominance requirements.
The Plaintiffs responded, and on Nov. 16, 2018, the trial court
entertained arguments on these motions. During the hearing, the
trial court expressed its intention to grant the motions.
The Defendants responded to what they characterize as the
Plaintiffs' "motion to reconsider" the trial court's denial of
class certification. The Defendants argued that the appellate cases
the Plaintiffs cite are distinguishable and do not resolve the
inability to establish the commonality element for class
certification.
The trial court stated in its order memorializing the Sept. 18,
2020 hearing and decision, that having considered all matters
before it on the Motions to Strike, the Motion for Appropriate
Relief, and having heard arguments of counsel, the Court grants the
Motions to Strike and grants that portion of the Motion for
Appropriate Relief requesting entry of an Order regarding the
Motions to Strike.
The trial court grants the Motions to Strike because of the number
of the Defendants named in the Petition, and for the reasons stated
at pp. 25-27 of the Transcript of Nov. 16, 2018, and the reasons
stated during the hearing held Sept. 18, 2020. The trial court
entered this Order pursuant to 12 O.S. Section 2023(C)(1)].
The Plaintiffs appeal the portion of the trial court's order
granting the Defendants' motions to strike the Plaintiffs' first
amended class action petition.
The Plaintiffs primarily argue on appeal that the trial court
improperly granted the Defendants' motions to strike their first
amended class action petition. In its ruling, the trial court
clearly decided that the principal missing prerequisite is
commonality as required by 12 O.S. Supp. 2020 Section 2023(A)(2),
says Judge Jane P. Wiseman, writing for the Panel.
The main issue before the Appellate Court is whether the trial
court correctly determined the Plaintiffs failed to show the
existence of questions of law or fact common to the class.
Judge Wiseman explains that this essentially means that the
Plaintiffs must show that they and the purported class of persons,
who have suffered the same injury, will share answers to common
questions of law or fact. This, the Plaintiffs cannot do, Judge
Wiseman points out.
The Appellate Court agrees with the trial court that the
Plaintiffs' stated common questions of law and fact are not
sufficient to generate common answers apt to drive the resolution
of the litigation.
The trial court determined the commonality element could not be met
and assessed that there are 26 Defendants in this matter with a
whole bunch of different earthquakes and a whole bunch of different
clusters. With so many Defendants and nine clusters of earthquakes
occurring from 2014 through 2017 in nine counties causing different
injuries and damages, the proposed class questions cannot generate
answers common to the class, Judge Wiseman opines.
Without meeting the commonality requirement of Section 2023(A)(2),
Judge Wiseman finds the Plaintiffs cannot maintain their proposed
class, and if the Plaintiffs cannot satisfy the requirements of
Section 2023(A), they cannot get to the Section 2023(B)
requirements.
The Plaintiffs cite two cases to support their contention that the
trial court should have granted class certification--Cooper v. New
Dominion, Case No. 117, 281 (Nov. 15, 2019) and Gentry v. Cotton
Elec. Coop., Inc., 2011 OK CIV APP 24, 268 P.3d 534. These cases do
not persuade the Appellate Court to certify this class.
The Plaintiffs did not assert claims against one Defendant
regarding earthquakes occurring over a three-day period in
approximately the same location, as the Cooper plaintiffs did.
Rather, the Plaintiffs assert claims against 23 Defendants
addressing nine clusters of earthquakes occurring over parts of
four years with seismic activity occurring in numerous Oklahoma
locations. The facts in Cooper fundamentally distinguish it from
this case as they pertain to the class certification requirement of
commonality.
In Gentry v. Cotton Electric Cooperative, Inc., 2011 OK CIV APP 24,
268 P.3d 534, a property owner brought a class action against the
electric cooperative alleging its defective transmission line
caused a fire that destroyed 48 residences. Unlike Gentry, the
damages alleged in this case stem from several earthquakes
occurring at different locations during different time periods
caused by different combinations of Defendants. These cases simply
do not support the Plaintiffs' assertions that this case must or
should proceed as a class action, Judge Wiseman holds.
The Plaintiffs also assert the trial court erred by striking their
class allegations before having the opportunity to conduct class
discovery.
Because it may look to federal authority for guidance regarding the
interpretation of Section 2023, the Appellate Court concludes the
trial court had the authority to consider the Plaintiffs' class
action allegations on the face of the first amended petition and to
strike class allegations prior to discovery if the petition
demonstrates that a class action cannot be maintained. It
concludes, as did the trial court, that the Plaintiffs' first
amended petition fails to demonstrate class certification is
appropriate.
Judge Wiseman notes that this is not to downplay the seriousness
and magnitude of the events giving rise to the Plaintiffs' claims
for class treatment. The Plaintiffs' inability to establish the
commonality requirement of 12 O.S. Section 2023(A) necessary to
certify a class for class action requires affirmance of the trial
court's decision.
As a final matter, the Plaintiffs alternatively request, in the
event the trial court's decision is affirmed, that the Appellate
Court enter an order "allowing the members of the class to file
their individual claims as to the alleged nine areas of seismicity"
consistent with Oklahoma law. The Appellate Court declines to
address this issue for the first time on appeal, and remands this
issue to the trial court for its determination in the first
instance.
Affirmed and remanded.
A full-text copy of the Court's Opinion dated Dec. 29, 2022, is
available at https://tinyurl.com/muwcz3fn from Leagle.com.
Scott Poynter -- scott@poynterlawgroup.com -- POYNTER LAW GROUP,
PLLC, in Little Rock, Arkansas. Michael M. Blue --
michael.blue@bluelawgroup.com -- BLUE LAW, in Oklahoma City,
Oklahoma, for the Plaintiffs/Appellants.
Robert G. Gum, April B. Coffin, GUM, PUCKETT, MACKECHNIE, COFFIN &
MATULA, L.L.P., in Oklahoma City, Oklahoma, for Defendant/Appellee
New Dominion, LLC.
Kerry R. Lewis -- klewis@rhodesokla.com -- Lindsey E. Albers --
lalbers@rhodesokla.com -- RHODES, HIERONYMUS, JONES, TUCKER &
GABLE, PLLC, in Tulsa, Oklahoma, for Defendant/Appellee Kirkpatrick
Oil Company, Inc.
K.D. Lackey, Jr., in Oklahoma City, Oklahoma, for
Defendant/Appellee Rainbo Service Co.
Thomas P. Goresen -- thomas.goresen@mcafeetaft.com -- J. Todd
Woolery -- todd.woolery@mcafeetaft.com -- Patrick L. Stein --
patrick.stein@mcafeetaft.com -- Mackenzie L. Smith, McAFEE & TAFT,
A PROFESSIONAL CORPORATION, in Oklahoma City, Oklahoma, for
Defendants/Appellees D&B Operating LLC, Mid-Con Energy Operating,
LCC, Orca Operating Co., LLC, and Territory Resources, LLC.
John J. Griffin, Jr. -- john.griffin@crowedunlevy.com -- L. Mark
Walker -- mark.walker@crowedunlevy.com -- CROWE & DUNLEVY, A
PROFESSIONAL CORPORATION, in Oklahoma City, Oklahoma, for
Defendant/Appellee Devon Energy Production Company, L.P.
E. Edd Pritchett, Jr. -- EPritchett@dlb.net -- Katherine T. Loy --
KLoy@dlb.net -- Glen Mullins -- GMullins@dlb.net -- Joshua L. Young
-- jyoung@dlb.net -- DURBIN, LARIMORE & BIALICK, in Oklahoma City,
Oklahoma, for Defendants/Appellees TNT Operating Company, Inc.,
White Operating Company, Dryes Corner, LLC, White Star Petroleum,
LLC, and Equal Energy US Inc.
J. Chris Horton, J. CHRIS HORTON, P.C., in El Reno, Oklahoma, for
Defendant/Appellee M M Energy, Inc.
Terence P. Brennan -- tbrennan@hallestill.com -- HALL, ESTILL,
HARDWICK, GABLE, GOLDEN & NELSON, P.C., in Tulsa, Oklahoma, for
Defendant/Appellee Wicklund Petroleum Corporation.
NEW YORK, NY: Class Certification Oral Argument Set for Feb. 2
--------------------------------------------------------------
In the class action lawsuit captioned as JERELLE DUNN et al., v.
CITY OF NEW YORK, Case No. 1:21-cv-09012-DLC (S.D.N.Y.), the Hon.
Judge Denise Cote entered an order that the oral argument on the
motion for class certification will be held on February 2,2023.
New York City is in reality a collection of many neighbourhoods
scattered among the city's five boroughs -- Manhattan, Brooklyn,
the Bronx, Queens, and Staten Island.
A copy of the Court's order dated Jan. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3Gll3ax at no extra charge.[CC]
OLAM SPICES: Beltran's Bid for Attys.' Fees and Costs Deemed Timely
-------------------------------------------------------------------
In the lawsuit entitled THOMAS BELTRAN, et al., Plaintiffs v. OLAM
SPICES AND VEGETABLES, INC., Defendant, Case No.
1:18-cv-01676-JLT-SAB (E.D. Cal.), Magistrate Judge Stanley A.
Boone of the U.S. District Court for the Eastern District of
California grants the parties' joint stipulation to deem the filing
of the Plaintiffs' motion for attorneys' fees and costs and
incentive awards timely.
The Plaintiffs initiated the action on Dec. 10, 2018. On Aug. 2,
2022, the Court issued an order setting the hearing on the
Plaintiff's motion for final approval of class action and
collective action settlement for Jan. 25, 2023, and directing the
Plaintiffs to file their motion for final approval on or before
Dec. 21, 2022. The Plaintiffs filed their motion for final approval
on Dec. 21, 2022. However, the Plaintiffs filed their related
motion for attorneys' fees on Dec. 22, 2022.
On Dec. 28, 2022, the parties submitted a joint stipulation to deem
the filing of the Plaintiff's motion for attorneys' fees and costs
and incentive awards timely, which is construed as a stipulated
request to shorten time to file the motion for fees and incentive
awards and supporting papers by one day, such that they are deemed
filed on Dec. 21, 2022, and may be heard on Jan. 25, 2023, with the
Plaintiffs' pending motion for final approval.
Judge Boone finds that the parties' stipulation lacks a supporting
affidavit, explanation or showing of good cause in support to
shortening time, which would generally warrant denial of the
parties' request. Nonetheless, in the interests of expediency, and
given the parties seek to shorten time by only one day in order to
hear both motions on Jan. 25, 2023, the Court will grant the
parties' request.
Based on the foregoing, Judge Boone rules that:
1. The joint stipulation to deem the filing of the Plaintiffs'
motion for attorneys' fees and costs and incentive awards
timely is granted;
2. The motion for fees and incentive awards and supporting
papers are deemed filed on Dec. 21, 2022, and oppositional
and Reply briefing will be filed in compliance with the
Federal Rules of Civil Procedure and Local Rules based on
this date; and
3. The Plaintiffs' motion for attorneys' fees and costs and
incentive awards will be heard on Jan. 25, 2023, at
10:00 a.m. in Courtroom 9.
A full-text copy of the Court's Order dated Dec. 29, 2022, is
available at https://tinyurl.com/3bm32phc from Leagle.com.
ONE TOUCH DIRECT: Aliotta Files TCPA Suit in M.D. Florida
---------------------------------------------------------
A class action lawsuit has been filed against One Touch Direct
Insurance, Inc. The case is styled as Robert Aliotta, on behalf of
himself and others similarly situated v. One Touch Direct
Insurance, Inc., Case No. 8:23-cv-00024-MSS-SPF (M.D. Fla., Jan. 5,
2023).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
OneTouch Direct -- https://www.onetouchdirect.com/ -- is a full
service Domestic & International BPO Business Process Outsourcing
company based in Tampa, Florida.[BN]
The Plaintiff is represented by:
Avi Robert Kaufman, Esq.
KAUFMAN P.A.
400 NW 26th Street
Miami, FL 33127
Phone: (305) 469-5881
Email: kaufman@kaufmanpa.com
ORSCHELN FARM: Toro Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Orscheln Farm And
Home, LLC. The case is styled as Jasmine Toro, on behalf of herself
and all others similarly situated v. Orscheln Farm And Home, LLC,
Case No. 1:23-cv-00054-VSB (S.D.N.Y., Jan. 4, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Orscheln Farm & Home -- https://www.orschelnfarmhome.com/ -- was a
retail chain of farm and ranch supply stores headquartered in
Moberly, Missouri.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
PATTERN ENERGY: Class Certification in Securities Suit Recommended
------------------------------------------------------------------
In the case, IN RE PATTERN ENERGY GROUP INC. SECURITIES LITIGATION,
C.A. No. 20-275-MN-JLH (D. Del.), Magistrate Judge Jennifer L. Hall
of the U.S. District Court for the District of Delaware recommends
that the Lead Plaintiffs Water Island Funds' Motion for Class
Certification be granted.
Judge Hall heard oral argument on Dec. 13, 2022. She recommends
that the Court should preliminarily certify the action to proceed
on the Water Island Funds' claims under Sections 14(a) and 20(a) of
the Securities Exchange Act of 1934 as a class action on behalf of:
"All persons and entities who held Class A common stock of Pattern
Energy Group Inc. as of the January 31, 2020 record date for the
merger with Canada Pension Plan Investment Board (Merger), were
entitled to vote on the Merger, and received the Merger
consideration; excluding Defendants, their immediate families and
trusts and investment vehicles operated by them or for their
benefit, and excluding Riverstone Holdings LLC and its affiliates,
CBRE Caledon Capital Management and its affiliates, the Public
Sector Pension Investment Board and its affiliates, and any person
or entity that received a legal or beneficial ownership interest in
the surviving new entity that emerged from the Merger."
Judge Hall finds that the Water Island Funds satisfy the
prerequisites for a class action under Federal Rule of Civil
Procedure 23(a), (b)(3), and the Defendants' challenges to adequacy
and predominance of common issues over potential individual issues
do not preclude certification at this stage.
Judge Hall finds that (i) the large number of class members renders
joinder of all class members impracticable; (ii) the Defendants'
conduct affects all class members; (iii) there are questions of law
and fact common to the class; (iv) the Water Island Funds' claims
are typical of the claims of the class they seek to represent; (v)
the Water Island Funds are adequate representatives that will
fairly and adequately protect the class' interests; (vi) the Water
Island Funds retained experienced securities class action counsel
who will fairly and adequately protect the class's interests:
Entwistle & Cappucci LLP as lead class counsel; Farnan LLP as
liaison class counsel; and additional counsel Susman Godfrey
L.L.P.; (vii) common questions of law or fact identified
predominate over any individual questions; and (viii) a class
action is superior to other available methods for resolving the
controversy.
Under Federal Rule of Civil Procedure 23, Judge Hall finds that the
Water Island Funds will adequately represent the class, and they
should be certified as the class representatives. The Water Island
Funds' counsel Entwistle & Cappucci LLP shouls also be authorized
to act as the lead class counsel on behalf of the Class, along with
the liaison class counsel Farnan LLP and additional counsel Susman
Godfrey L.L.P., with respect to all acts required by, or necessary
to be taken under, the Federal Rules of Civil Procedure and the
Court's Orders.
The counsel will meet and confer regarding appropriate notice to
the class. As soon as possible and no later than 14 days after the
adoption of this Report & Recommendation, the class counsel will
file a motion to approve a form and protocol for notice to the
class to satisfy the terms and due process required under Rule 23,
including fully describing the parties' respective positions on any
unresolved disputes regarding the negotiated notice.
Any objections to the Report and Recommendation will be filed
within 14 days and limited to 10 pages. Any response will be filed
within 14 days thereafter and limited to ten pages. The failure of
a party to object to legal conclusions may result in the loss of
the right to de novo review in the district court.
The parties are directed to the Court's Standing Order for
Objections Filed Under Fed. R. Civ. P. 72, dated March 7, 2022, a
copy of which can be found on the Court's website.
A full-text copy of the Court's Jan. 3, 2023 Report &
Recommendation is available at https://tinyurl.com/2p8sp4hs from
Leagle.com.
PEPPER SOURCE: Cagle Files FLSA Suit in W.D. Arkansas
-----------------------------------------------------
A class action lawsuit has been filed against Pepper Source, LTD.
The case is styled as William Cagle, individually and on behalf of
all others similarly situated v. Pepper Source, LTD., Case No.
5:23-cv-05001-TLB (W.D. Ark., Jan. 4, 2023).
The lawsuit is brought over alleged violation of the Fair Labor
Standards Act.
Pepper Source -- https://www.peppersource.com/ -- is a family owned
company that provides custom sauces, dressings, seasonings, and dry
coating systems.[BN]
The Plaintiffs are represented by:
Josh Sanford, Esq.
SANFORD LAW FIRM
10800 Financial Centre Pkwy, Suite 510
Little Rock, AR 72211
Phone: (501) 221-0088
Fax: (888) 787-2040
Email: josh@sanfordlawfirm.com
PFIZER INC: Abreu Suit Transferred to S.D. New York
---------------------------------------------------
The case styled as MSP Recovery Claims Series 44, LLC, MSP Recovery
Claims, Series LLC, Intervenor Plaintiffs; Juan Abreu, Tara Evans,
Karen Duff, County of Monmouth, Albert Edwards, Doug Houghton,
Debra Seeley, Timothy Bleeker, Candace Fish, Kathleen Lima, Tammy
LaMotte, Anthony Ellis, Carita Thompson, Teresa Baptiste,
individually, and on behalf of all others similarly situated,
Plaintiffs v. Pfizer Inc., was transferred to the U.S. District
Court for the Southern District of New York on Dec. 22, 2022.
The District Court Clerk assigned Case No. 1:22-md-03050-KPF to the
proceeding.
The nature suit is stated as Personal Injury: Health
Care/Pharmaceutical Personal Injury Product Liability.
Pfizer Inc. -- https://www.pfizer.com/ -- is an American
multinational pharmaceutical and biotechnology corporation
headquartered on 42nd Street in Manhattan, New York City.[BN]
The Plaintiffs are represented by:
David J. Stanoch, Esq.
Ruben Honik, Esq.
HONIK LLC
1515 Market Street, Suite 1100
Philadelphia, PA 19102
Phone: (267) 435-1300
Email: d.stanoch@kanner-law.com
ruben@honiklaw.com
- and -
Peter Samberg, Esq.
PETER SAMBERG
100 Ardsley Avenue West, Ste. 3l
Ardsley on Hudson, NY 10503
Phone: (914) 391-1213
Email: psamberg@gmail.com
- and -
Sarah Westcot, Esq.
BURSOR & FISHER P.A.
701 Brickell Avenue, Suite 1420
Miami, FL 33131
Phone: (305) 330-5512
Email: swestcot@bursor.com
- and -
Yitzhak Shmuel Levin, Esq.
CITRON LEVIN, PLLC
3100 N. 29th Court, Suite 100
Hollywood, FL 33020
Phone: (954) 395-2954
- and -
Paul T. Geske, Esq.
MCGUIRE LAW, P.C.
55 W. Wacker Dr., Ste. 9th Fl.
Chicago, IL 60601
Phone: (312) 893-7002
Fax: (312) 275-7895
- and -
David John Stanoch, Esq.
KANNER AND WHITELEY, L.L.C.
701 Camp Street
New Orleans, LA 70130
Phone: (504) 524-5777
Email: d.stanoch@kanner-law.com
- and -
David Magagna, Esq.
LEVIN SEDRAN & BERMAN
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Phone: (215) 592-1500
Fax: (215) 592-4663
Email: dmagagna@lfsblaw.com
- and -
Andrew Joseph Obergfell, Esq.
BURSOR & FISHER PA
888 Seventh Avenue, Third Floor
New York, NY 10019
Phone: (646) 837-7150
- and -
Gillian Leigh Wade, Esq.
Marc Alexander Castaneda, Esq.
Sara Dawn Avila, Esq.
MILSTEIN JACKSON FAIRCHILD & WADE, LLP
10990 Wilshire Boulevard, Suite 800
Los Angeles, CA 90024
Phone: (310) 396-9600
Fax: (310) 396-9635
- and -
Jeffrey D. Boyd, Esq.
Deborah M. Nelson, Esq.
NELSON BOYD PLLC
601 Union Street, Suite 2600
Seattle, WA 98101
Phone: (206) 971-7601
- and -
Ashleigh Raso, Esq.
MESHBESHER & SPENCE
1616 Park Avenue
Minneapolis, MN 55404
Phone: (612) 767-5123
Fax: (612) 339-9188
Email: araso@meshbesher.com
- and -
Marlene J. Goldenberg, Esq.
GOLDENBERGLAW, PLLC
800 LaSalle Ave Ste 2150
Minneapolis, MN 55402
Phone: (612) 436-5028
Fax: (612) 367-8107
- and -
Joseph E. Piucci, Esq.
PIUCCI LAW
900 SW 13th Avenue, Suite 200
Portland, OR 97205
Phone: (503) 701-0357
Fax: (503) 228-2571
- and -
Paula S. Bliss, Esq.
JUSTICE LAW COLLABORATIVE
19 Belmont Street
South Easton, MA 02375
Phone: (508) 230-2700
Email: paula@justicelc.com
- and -
Aaron J. Freiwald, Esq.
FREIWALD LAW, P.C.
1500 Walnut Street, 18th Floor
Philadelphia, PA 19102
Phone: (215) 875-8000
The Intervenor Plaintiffs are represented by:
Alan H. Rolnick, Esq.
Andres Rivero, Esq.
David Lee DaPonte, Esq.
Jorge Alejandro Mestre
RIVERO MESTRE LLP
2525 Ponce de Leon Blvd., Suite 1000
Coral Gables, FL 33134
Phone: (305) 445-2500
Fax: (305) 445-2505
Email: arivero@riveromestre.com
The Defendant is represented by:
Anthony Todaro, Esq.
GRAY CARY WARE & FREIDENRICH LLP
701 Fifth Avenue
Seattle, WA 98104-7044
Phone: (206) 839-4800
Fax: (206) 839-4801
- and -
Ardith M. Bronson, Esq.
DLA PIPER LLP US
200 South Biscayne Blvd., Suite 2500
Miami, FL 33131
Phone: (305) 423-8562
Email: ardith.bronson@dlapiper.com
- and -
Colleen Gulliver, Esq.
Loren H. Brown, Esq.
Jessica Carol Wilson, Esq.
DLA PIPER US LLP (NY)
1251 Avenue of the Americas, 27th Floor
New York, NY 10020
Phone: (212) 335-4500
Fax: (212) 335-4501
Email: Colleen.Gulliver@us.dlapiper.com
loren.brown@dlapiper.com
jessica.wilson@dlapiper.com
- and -
Jessica Wilson, Esq.
JESSICA WILSON PC
26 Broadway, Ste. 8th Floor
New York, NY 10004
Phone: (212) 739-1736
Email: jwilson@wilsonjustice.com
- and -
Matthew Aaron Holian, Esq.
DLA PIPER LLP (US)
33 Arch Street, 26th Floor
Boston, MA 02110
Phone: (617) 406-6000
Fax: (617) 406-6100
Email: matt.holian@dlapiper.com
- and -
Nancy Shane Rappaport, Esq.
DLA PIPER LLP (US)
1201 N. Market Street, Suite 2100
Wilmington, DE 19801
Phone: (302) 468-5700
Fax: (302) 394-2341
- and -
Raj N. Shah, Esq.
DLA Piper LLP (US) - Chicago
444 West Lake Street, Suite 900
Chicago, IL 60606
Phone: (312) 368-8904
Fax: (312) 251-5714
- and -
Ruth Dapper, Esq.
DLA PIPER LLP (US)
401 B Street, Ste. 1700
San Diego, CA 92101
Phone: (619) 699-2752
Fax: (619) 699-2701
- and -
Sarah E. Kalman, Esq.
DLA PIPER (US)
One Liberty Place, Suite 5000
Philadelphia, PA 19103
Phone: (215) 656-2438
- and -
Stephen C. Matthews
DLA PIPER LLP (US)
51 John F Kennedy Parkway, Suite 120
Short Hills, NJ 07078
Phone: (973) 520-2541
Fax: (973) 215-2602
PFIZER INC: Duff Suit Transferred to S.D. New York
--------------------------------------------------
The case styled as Karen Duff, individually, and on behalf of all
others similarly situated v. Pfizer Inc., Case No. 2:21-cv-01350
was transferred from the U.S. District Court for the Western
District of Pennsylvania, to the U.S. District Court for the
Southern District of New York on Jan. 5, 2023.
The District Court Clerk assigned Case No. 1:23-cv-00095-KPF to the
proceeding.
The nature of suit is stated as Other Fraud.
Pfizer Inc. -- https://www.pfizer.com/ -- is an American
multinational pharmaceutical and biotechnology corporation
headquartered on 42nd Street in Manhattan, New York City.[BN]
The Plaintiff is represented by:
David John Stanoch, Esq.
KANNER AND WHITELEY, L.L.C.
701 Camp Street
New Orleans, LA 70130
Phone: (504) 524-5777
Email: d.stanoch@kanner-law.com
The Defendant is represented by:
Nancy Shane Rappaport, Esq.
DLA PIPER LLP (US)
1201 N. Market Street, Suite 2100
Wilmington, DE 19801
Phone: (302) 468-5700
Fax: (302) 394-2341
PFIZER INC: Edwards Suit Transferred to S.D. New York
-----------------------------------------------------
The case styled as Albert Edwards, individually, and on behalf of
all others similarly situated v. Pfizer Inc., Case No.
2:21-cv-04275 was transferred from the U.S. District Court for the
Eastern District of Pennsylvania, to the U.S. District Court for
the Southern District of New York on Jan. 5, 2023.
The District Court Clerk assigned Case No. 1:23-cv-00097-KPF to the
proceeding.
The nature of suit is stated as Other Fraud.
Pfizer Inc. -- https://www.pfizer.com/ -- is an American
multinational pharmaceutical and biotechnology corporation
headquartered on 42nd Street in Manhattan, New York City.[BN]
The Plaintiff is represented by:
Ruben Honik, Esq.
HONIK LAW
1515 Market Street, Suite 1100
Philadelphia, PA 19102
Phone: (267) 435-1300
Email: ruben@honiklaw.com
The Defendant is represented by:
Nancy Shane Rappaport, Esq.
DLA PIPER LLP (US)
1201 N. Market Street, Suite 2100
Wilmington, DE 19801
Phone: (302) 468-5700
Fax: (302) 394-2341
- and -
Sarah E. Kalman, Esq.
DLA PIPER (US)
One Liberty Place, Suite 5000
Philadelphia, PA 19103
Phone: (215) 656-2438
PFIZER INC: Evans Suit Transferred to S.D. New York
---------------------------------------------------
The case styled as Tara Evans, individually, and on behalf of all
others similarly situated v. Pfizer Inc., Case No. 3:21-cv-01263
was transferred from the U.S. District Court for the Southern
District of Illinois, to the U.S. District Court for the Southern
District of New York on Jan. 5, 2023.
The District Court Clerk assigned Case No. 1:23-cv-00094-KPF to the
proceeding.
The nature of suit is stated as Personal Injury: Health
Care/Pharmaceutical Personal Injury Product.
Pfizer Inc. -- https://www.pfizer.com/ -- is an American
multinational pharmaceutical and biotechnology corporation
headquartered on 42nd Street in Manhattan, New York City.[BN]
The Plaintiff is represented by:
Paul T. Geske, Esq.
MCGUIRE LAW, P.C.
55 W. Wacker Dr., Ste. 9th Fl.
Chicago, IL 60601
Phone: (312) 893-7002
Fax: (312) 275-7895
The Defendant is represented by:
Raj N. Shah, Esq.
DLA PIPER LLP (US) - Chicago
444 West Lake Street, Suite 900
Chicago, IL 60606
Phone: (312) 368-8904
Fax: (312) 251-5714
- and -
Matthew A. Holian, Esq.
DLA PIPER LLP (US)
33 Arch Street, 26th Floor
Boston, MA 02110-1447
Phone: (617) 406-6009
Email: matt.holian@dlapiper.com
PFIZER INC: Monmouth County Suit Transferred to S.D. New York
-------------------------------------------------------------
The case styled as County of Monmouth, individually and on behalf
of all others similarly situated v. Pfizer Inc., Case No.
3:22-cv-02050 was transferred from the U.S. District Court for the
District of New Jersey, to the U.S. District Court for the Southern
District of New York on Jan. 5, 2023.
The District Court Clerk assigned Case No. 1:23-cv-00096-KPF to the
proceeding.
The nature of suit is stated as Other Fraud.
Pfizer Inc. -- https://www.pfizer.com/ -- is an American
multinational pharmaceutical and biotechnology corporation
headquartered on 42nd Street in Manhattan, New York City.[BN]
The Plaintiff is represented by:
David Magagna, Esq.
LEVIN SEDRAN & BERMAN
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Phone: (215) 592-1500
Fax: (215) 592-4663
Email: dmagagna@lfsblaw.com
The Defendant is represented by:
Stephen C. Matthews, Esq.
DLA PIPER LLP (US)
51 John F. Kennedy Parkway, Suite 120
Short Hills, NJ 07078
Phone: (973) 520-2541
Fax: (973) 215-2602
PINBALL COMPANY: Toro Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against The Pinball Company,
LLC. The case is styled as Jasmine Toro, on behalf of herself and
all others similarly situated v. The Pinball Company, LLC, Case No.
1:23-cv-00055 (S.D.N.Y., Jan. 4, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Pinball Company -- https://www.thepinballcompany.com/ -- is a
leading retailer of pinball machines, arcades, game tables,
jukeboxes and other game room items.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
QUENCH IT INC: Donet Sues Over Blind-Inaccessible Website
---------------------------------------------------------
Maricela Donet, individually, and on behalf of all others similarly
situated v. QUENCH IT, INC., Case No. 1:23-cv-00110-JPO (S.D.N.Y.,
Jan. 5, 2023), is brought against the Defendant for its failure to
design, construct, maintain, and operate its website,
halftimebeverage.com ("Website"), to be fully accessible to—and
independently usable by--the Plaintiff and other blind and/or
visually impaired people who use screen-reading software.
The Plaintiff asserts this action individually and on behalf of all
other visually impaired and/or legally blind individuals in the
United States who have attempted to access the Website and have
been denied equal access to the enjoyment of cider, craft beer,
hard seltzer, merch, and more offered thereon during the past three
years from the date of the filing of the complaint.
The Defendant denies the Plaintiff, and other blind and/or visually
impaired individuals, full and equal access to the goods offered on
the Website, in addition to the access to the Website's features
that are accessible to non-disabled individuals. Defendant owns
and/or operates the Website, which contains myriad access barriers
that make it difficult, if not impossible, for Plaintiff and other
blind and/or visually impaired users to even complete a transaction
on the website. Preventing the disabled's abilities to utilize the
internet--a common marketplace and important tool for daily
life--increases their feelings of isolation, stigma and
discrimination of the type that Title III of the ADA sought to
redress. Additionally, this sort of discrimination was and remains
particularly acute due to the recent COVID-19 pandemic.
The Plaintiff has visited the Website numerous times, most recently
on December 30, 2022. On each occasion, Plaintiff had the intent of
purchasing craft beers. Unfortunately, Plaintiff and other blind
individuals are blocked from experiencing all of the Website's
features, including the ability to complete a transaction thereon.
Unless Defendant remediates their Website, Plaintiff and the Class
will be unable to independently navigate, browse, and ultimately
complete transactions thereon. As a result of the continuing
accessibility issues, Defendant, through its ownership and/or
operation of the Website, violates Title III of the ADA, and the
New York City Human Rights Law, says the complaint.
The Plaintiff is a visually impaired and legally blind person.
The Defendant is a company registered in New York.[BN]
The Plaintiff is represented by:
William J. Downes, Esq.
MIZRAHI KROUB LLP
225 Broadway, 39th Floor
New York, NY 10007
Phone: 212/595-6200
Fax: 212/595-9700
Email: wdownes@mizrahikroub.com
QUILL LINCOLNSHIRE: Feliz Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Quill Lincolnshire,
Inc. The case is styled as Roberta Feliz, individually, and on
behalf of all others similarly situated v. Quill Lincolnshire,
Inc., Case No. 1:23-cv-00089 (S.D.N.Y., Jan. 5, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Quill Corporation -- https://www.quill.com/ -- is an American
office supply retailer, founded in 1956, and headquartered in
Lincolnshire, Illinois.[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
REALPAGE INC: Court Issues Order to Show Cause in Augustson Suit
----------------------------------------------------------------
Magistrate Judge Laura Fashing of the U.S. District Court for the
District of New Mexico issued a Memorandum Opinion and Order to
Show Cause in the lawsuit captioned MIA IRONEYES AUGUSTSON,
individually and on behalf of all others similarly situated,
Plaintiffs v. REALPAGE, INC., GREYSTAR WORLDWIDE, LLC, FPI
MANAGEMENT, NORTHLAND INVESTMENT CORPORATION, RPM LIVING, MONARCH
INVESTMENT AND MANAGEMENT GROUP, NALS APARTMENT HOMES, and LANDMARK
REALTY, Defendants, Case No. 1:22-cv-00976-LF (D.N.M.).
The matter comes before the Court on pro se Plaintiff Mia IronEyes
Augustson's Class Action Complaint for a Civil Action, and the
Plaintiff's Application to Proceed in District Court Without
Prepaying Fees or Costs, both filed Dec. 27, 2022.
Judge Fashing notes that the Plaintiff did not sign the "Affidavit
in Support of the Application" on page 1 of her Application to
Proceed in District Court Without Prepaying Fees or Costs. The
Court orders the Plaintiff to either: (i) sign the Affidavit in
Support of her Application; or (ii) show cause why the Court should
not strike the Application for failure to sign the Affidavit in
Support.
The Plaintiff alleges that Defendant RealPage provides software and
services to the multifamily housing industry and the other
Defendants are multifamily housing Lessor corporations, which
control millions of apartment housing units nationwide. Defendant
RealPage allegedly suggests rental values to its client Lessors and
pressures Lessors to accept the suggested values unaltered
resulting in an increase of rental rates.
The Plaintiff alleges that from 2020 to 2021 her rent increased
$200 per month and in late 2022 she "lost the apartment anyway, to
'renovation' which is another strategy endorsed by RealPage and
commonly used by Lessors to force a unit turnover when nonpayment
of rent cannot be cited as a cause." She alleges that in "letters
to the Justice Department and the Federal Trade Commission,"
"RealPage and its clients are accused of acting in collusion, using
inside information in the manner of a cartel, in violation of
antitrust law."
The Plaintiff filed her "Class Action Complaint" on "behalf of
others similarly situated." Judge Fashing says the Plaintiff is not
a licensed attorney authorized to practice in the Court. Judge
Fashing holds that the claims she is asserting on behalf of others
similarly situated should be dismissed because a litigant may bring
her own claims to federal court without counsel, but not the claims
of others. The Court orders the Plaintiff to show cause why the
Court should not dismiss the claims she is asserting on behalf of
others similarly situated.
Judge Fashing also holds that it appears that the Court does not
have jurisdiction over the Plaintiff's claims for monetary damages
and injunctive relief. The Complaint does not contain any factual
allegations that the Defendants reside, are found or have an agent
in the District of New Mexico or that the Court has jurisdiction
over the Defendants.
The Court orders the Plaintiff to show cause why the Court should
not dismiss this case for lack of jurisdiction. If the Plaintiff
asserts the Court has jurisdiction, the Plaintiff must file an
amended complaint containing factual allegations supporting
jurisdiction.
The Complaint fails to state a claim against each Defendant, Judge
Fashing finds. The Complaint contains conclusory allegations the
Defendants colluded to raise rental rates but does not contain
factual allegations describing what each Defendant did to the
Plaintiff, when they did it and how each Defendant harmed the
Plaintiff.
The Court orders the Plaintiff to show cause why the Court should
not dismiss this case for failure to state a claim. If the
Plaintiff asserts that the Court should not dismiss this case, the
Plaintiff must file an amended complaint containing factual
allegations that state a claim upon which relief can be granted.
The Court reminds the Plaintiff of her obligations pursuant to Rule
11 of the Federal Rules of Civil Procedure. Rule 11(b) provides
that by presenting to the court a pleading, written motion, or
other paper--whether by signing, filing, submitting, or later
advocating it--an attorney or unrepresented party certifies that to
the best of the person's knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances that it is not,
among other things, being presented for any improper purpose, such
as to harass, cause unnecessary delay, or needlessly increase the
cost of litigation.
Judge Fashing notes that failure to comply with the requirements of
Rule 11 may subject the Plaintiff to sanctions, including monetary
penalties and nonmonetary directives.
The Court ordered that:
(1) the Plaintiff will, within 21 days of entry of the Order,
either: (i) sign the Affidavit in Support of her
Application; or (ii) show cause why the Court should not
strike the Application for failure to sign the Affidavit
in Support. Failure to timely sign the Affidavit or show
cause may result in the Court striking the Plaintiff's
Application to Proceed in District Court Without
Prepayment of Fees and Costs; and
(2) the Plaintiff will, within 21 days of entry of this Order,
show cause why the Court should not dismiss her claims for
the reasons stated. Failure to timely show cause and file
an amended complaint may result in dismissal of this case.
A full-text copy of the Court's Memorandum Opinion and Order dated
Dec. 29, 2022, is available at https://tinyurl.com/5322veu5 from
Leagle.com.
REALPAGE INC: Yusupov Sues Over Artificially Inflated Price
-----------------------------------------------------------
Marat Yusupov, individually and on behalf of all others similarly
situated v. REALPAGE, INC.; GREYSTAR REAL ESTATE PARTNERS, LLC;
LINCOLN PROPERTY CO.; CUSHMAN & WAKEFIELD, INC.; FPI MANAGEMENT,
INC.; RPM LIVING, LLC; BH MANAGEMENT SERVICES, LLC; MID AMERICA
APARTMENT COMMUNITIES, INC.; MORGAN PROPERTIES, LLC; AVENUE5
RESIDENTIAL, LLC; BOZZUTO MANAGEMENT COMPANY; AVALONBAY
COMMUNITIES, INC.; HIGHMARK RESIDENTIAL, LLC; EQUITY RESIDENTIAL;
ESSEX PROPERTY TRUST, INC; ZRS MANAGEMENT, LLC; CAMDEN PROPERTY
TRUST; UDR, INC.; CONAM MANAGEMENT CORPORATION; THRIVE COMMUNITIES
MANAGEMENT, LLC; SECURITY PROPERTIES INC.; CWS APARTMENT HOMES,
LLC; PROMETHEUS REAL ESTATE GROUP; SARES REGIS GROUP OPERATING,
INC.; MISSION ROCK RESIDENTIAL, LLC; and KALED MANAGEMENT CORP.,
Case No. 2:23-cv-00013 (W.D. Wash., Jan. 4, 2023), is brought
challenging a cartel among lessors of multifamily residential real
estate leases ("Lessors") to artificially inflate the prices of
multifamily residential real estate in the United States above
competitive levels.
Until 2016, and potentially earlier, many of the nation's largest
Lessors priced their leases based upon their own assessments of how
to best compete against other Lessors. Lessors generally priced
their units competitively to maximize occupancy (that is,
maximizing output). Lessors had an incentive to lower their prices
to attract lessees away from their competitors, until all available
leases were sold. In this way, competition drove rent levels to
reflect available supply of rental units and lessee demand. Lessors
also independently determined when to put their leases on the
market, resulting in unpredictable supply levels—a natural
phenomenon in a competitive market. When supply exceeded demand,
Lessors cut prices.
Beginning in approximately 2016, and potentially earlier, Lessors
replaced their independent pricing and supply decisions with
collusion. Lessors agreed to use a common third party that
collected real-time pricing and supply levels, and then used that
data to make unit-specific pricing and supply recommendations.
Lessors also agreed to follow these recommendations, on the
expectation that competing Lessors would do the same.
That third party is RealPage, Inc. RealPage provides software and
data analytics to Lessors. RealPage also serves as the mechanism by
which Lessors collude and avoid competition, increasing lease
prices to Plaintiff and other members of the proposed Class.
RealPage openly boasts that its services "balance supply and demand
to maximize Lessors' revenue growth." And that is precisely what
RealPage has done, facilitating an agreement among participating
Lessors not to compete on price, and allowing Lessors to coordinate
both pricing and supply through two mutually reinforcing mechanisms
in furtherance of their agreed aim of suppressing price competition
for multifamily residential real estate leases.
First, Lessors "outsource daily pricing and ongoing revenue
oversight" to RealPage, replacing separate centers of independent
decision-making with one. While Lessors are able to reject the
RealPage pricing through an onerous process, RealPage emphasizes
the need for "discipline" among participating Lessors. To encourage
adherence to its common scheme, RealPage explains that for its
services to be most effective in increasing rents, Lessors must
accept the pricing at least eighty percent of the time.
Second, RealPage allows participating Lessors to coordinate supply
levels to avoid price competition. In a competitive market, there
are periods where supply exceeds demand, and that in turn puts
downward pressure on market prices as firms compete to attract
lessees. To avoid the consequences of lawful competition, RealPage
provides Lessors with information sufficient to "stagger" lease
renewals to avoid oversupply. By staggering lease renewals to
artificially smooth out natural imbalances of supply and demand,
RealPage and participating Lessors also eliminate any incentive to
undercut or cheat on the cartel (avoiding a race to the bottom, or
"prisoner's dilemma").
RealPage's and participating Lessors' coordinated efforts have been
effective at driving anticompetitive outcomes: higher prices and
lower physical occupancy levels (output). RealPage is proud of its
role in the exploding increase in the prices of residential leases.
In a marketing video used to attract additional Lessors to the
conspiracy, a RealPage Vice President discussed the recent and
never-before seen price increases for residential real estate
leases, as high as 14.5% in some markets.
If left unchecked, RealPage and its participating Lessors' cartel
stand to break the multifamily residential real estate lease market
and continue to exacerbate the affordable housing crisis facing
this Nation. The cartel Plaintiff challenges is unlawful under
Section 1 of the Sherman Act. Plaintiff brings this action to
recover her damages, trebled, as well as injunctive and other
appropriate relief, detailed infra, on behalf of all others
similarly situated, says the complaint.
The Plaintiff rented a multifamily residential unit in a property
managed by Lessor Defendant Kaled Management Corp. in Forest Hills,
New York.
RealPage, Inc. is a Delaware corporation headquartered in
Richardson, Texas who provides software and services to the
residential real estate industry, including the RMS.[BN]
The Plaintiff is represented by:
Steve W. Berman, Esq.
Breanna Van Engelen, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1301 Second Avenue, Suite 2000
Seattle, WA 98101
Phone: (206) 623-7292
Facsimile: (206) 623-0594
Email: steve@hbsslaw.com
breannav@hbsslaw.com
- and -
John Radice, Esq.
Daniel Rubenstein, Esq.
Eva Kane, Esq.
RADICE LAW FIRM, P.C.
475 Wall Street
Princeton, NJ 08540
Phone: (646) 245-8502
Facsimile: (609) 385-0745
Email: jradice@radicelawfirm.com
drubenstein@radicelawfirm.com
ekane@radicelawfirm.com
RECEIVABLE PERFORMANCE: Filing of Class Cert Bid Due April 1
------------------------------------------------------------
In the class action lawsuit captioned as Powers v. Receivable
Performance Management, LLC, Case No. 4:21-cv-12125 (D. Mass.), the
Hon. Judge William G. Young entered a scheduling order as follows:
-- Class Certification Due: April 1, 2023
-- Discovery Due by: August 1, 2023
-- Dispositive Motions Due by: June 1, 2023
-- Ready for Trial on: September 11, 2023
Receivables Performance is a debt collection agency.[CC]
RECKITT BENCKISER: BRRS Bid for Class Cert. Denied w/o Prejudice
----------------------------------------------------------------
In the class action lawsuit captioned as CITY OF STERLING HEIGHTS
POLICE & FIRE RETIREMENT SYSTEM (PFRS) v. RECKITT BENCKISER GROUP
PLC, et al., Case No. 1:20-cv-10041-PKC (S.D.N.Y.), the Court
entered an order denying without prejudice the Lead Plaintiff City
of Birgmingham Retirement and Relief System and Plaintiff City of
Sterling Heights Police & Fire Retirement System's motion for class
certification and other relief.
Previously, the Plaintiffs asked the Court to enter an order:
1. Certifying the action as a class action pursuant to
Federal Rule of Civil Procedure 23;
2. Appointing them as class representatives; and
3. Appointing Lead Counsel Robbins Geller Rudman & Dowd LLP
as Class Counsel.
City of Sterling Heights PFRS is a single-employer defined benefit
public pension fund.
The City of Birmingham Retirement System provides pension,
retirement plans and various other benefits to its participants.
Reckitt Benckiser is a British multinational consumer goods company
headquartered in Slough, England. It is a producer of health,
hygiene and nutrition products.
A copy of the Court's order dated Jan. 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3vF7Qo4 at no extra charge.[CC]
RETAIL EQUATION: Wins Bid to Dismiss Certain Claims in Lloyd Suit
-----------------------------------------------------------------
Judge Joseph H. Rodriguez of the U.S. District Court for the
District of New Jersey grants the motion to dismiss claims by two
Plaintiffs in the lawsuit titled LLOYD, et al., Plaintiffs v. THE
RETAIL EQUATION, INC., et al., Defendants, Case No. 21-17057
(D.N.J.).
Presently before the Court is the motion by Defendant The Retail
Equation, Inc., seeking an order dismissing all claims against it
by Plaintiffs Michael Murphy and Natalia Taboada for lack of
personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2).
The lawsuit is a putative class action concerning the alleged
unlawful collection of consumer data and its use in approving or
denying consumers returns or exchanges at certain retail stores.
Named Plaintiffs Carol Lloyd, Michael Murphy, and Natalia Taboada,
on behalf of themselves and the putative class(es) they seek to
represent, initiated this suit on Sept. 16, 2021, against
Defendants The Retail Equation, Inc. ("TRE"), Appriss Inc.
("Appriss"), The TJX Companies, Inc. ("TJX"), and Bed Bath & Beyond
Inc. ("BB&B"), (Appriss, TJX, and BB&B, collectively, the "Retail
Defendants").
The Retail Defendants are businesses with retail stores throughout
the country. TJ Maxx and Marshalls together form the Marmaxx
division of TJX. TJX is a Delaware corporation with its principal
place of business and headquarters in Farmington, Massachusetts.
BB&B is a New York corporation with its principal place of business
and headquarters in Union, New Jersey.
TRE is a company with whom the Retail Defendants contract, or have
contracted, in an effort to combat retail fraud. TRE is a Delaware
corporation and a wholly owned subsidiary of Apriss, Inc., with its
principal place of business and headquarters in Irvine,
California.
TRE provides a "software-as-a-service" that uses statistical
modeling and analytics to detect fraudulent behavior when returns
are processed at a retailer's return counter. Using its patented
software, TRE generates "risk scores" for individual customers
attempting to return or exchange items and makes recommendations to
the Retail Defendants about whether to approve or deny the
processing of same. These "risk scores" are calculated with a mix
of data collected by retailers, referred to as Consumer Commercial
Activity Data and Consumer ID Data. Consumer Commercial Activity
Data includes purchase and return history as well as the contents,
method, and frequency of consumer purchases. Consumer ID Data
contains information available on various forms of identification
and includes "name, date of birth, race, sex, photograph, complete
street address, and zip code."
The Named Plaintiffs allege they were harmed by: (a) the sharing of
Consumer Commercial Activity Data and Consumer ID Data by the
Retail Defendants; (b) the receipt of Consumer Commercial Activity
Data and Consumer ID by TRE; and (c) the use of Consumer Commercial
Activity and Consumer ID Data. The Named Plaintiffs claim that as a
consequence of these practices, they are prevented from making
future returns or exchanges without a receipt.
The Complaint alleges causes of action for invasion of privacy
against all Defendants (Count One); violations of California's
Unfair Competition Law California Business & Professions Code
Section 17200 against TRE (Count Two); violation of the New Jersey
Consumer Fraud Act gainst the Retail Defendants and Appriss Inc.
(Count Three); violation of the Fair Credit Reporting Act against
TRE (Count Four); and, unjust enrichment against all Defendants
(Count Five).
While the Named Plaintiffs make similar allegations in the
Complaint, Judge Rodriguez notes their individual circumstances
vary in that they reside in different states and made their
respective attempted returns or exchanges at different retail
locations.
The Complaint alleges that personal jurisdiction and venue are
proper in New Jersey and within this District because the
Plaintiffs' claims alleged here arose in substantial part in New
Jersey and within this District; and because the Defendants do
substantial business in New Jersey and throughout this District.
TRE moves pursuant to Fed. R. Civ. P. 12(b)(2) for an order
dismissing the claims asserted against it by Plaintiffs Taboada and
Murphy. While Murphy opposes dismissal of his claims against TRE,
Taboada does not. TRE's challenge to Murphy's assertion of personal
jurisdiction centers around its corporate affiliations and the
forum's connection to the alleged unlawful conduct.
Here, Murphy does not dispute that the Court lacks general personal
jurisdiction over TRE, but the parties are in disagreement as to
whether specific personal jurisdiction may be asserted. Murphy
rests his theory of personal jurisdiction on two purported
contacts. According to Murphy, the contract between TRE and BB&B
forms a sufficiently substantial connection with New Jersey.
Additionally, he submits that TRE's use of Bed Bath & Beyond's data
collected from around the country in its New Jersey Headquarters
establishes its purposeful business in New Jersey.
Neither of these asserted contracts, taken alone or in conjunction,
are sufficient for personal jurisdiction to lie over TRE in this
forum, Judge Rodriguez holds. TRE's purported contract with BB&B is
no proxy for adequate in-forum contacts.
TRE's contract with BB&B clearly relates to the general subject
matter of Murphy's claims against TRE, Judge Rodriguez notes. Yet,
it is not the focal point of the activities alleged to form the
basis of TRE's liability in the present context. Accordingly, Judge
Rodriguez finds that TRE's contract with BB&B alone does not form a
sufficiently substantial connection with this forum such that
personal jurisdiction may be exercised over Murphy's claims against
TRE.
Mr. Murphy's attempt to demonstrate sufficient contacts through
TRE's performance under the contract is likewise unavailing, Judge
Rodriguez holds, among other things. Even assuming certain
information was collected and transmitted from BB&B in New Jersey
prior to or at the time of the attempted return or exchange, this
still would not be enough to show purposeful availment, Judge
Rodriguez points out.
Even if jurisdictional discovery were to show that Murphy's
customer information was transmitted or processed from BB&B
headquarters and data centers in New Jersey, at most this might
plausibly demonstrate that BB&B in New Jersey directed such
activities at TRE in California -- but not the inverse, Judge
Rodriguez holds. Accordingly, Murphy's request to conduct
jurisdictional discovery for the purpose of developing that theory
is denied.
For the reasons set forth, the motion by Defendant The Retail
Equation, Inc., seeking an order dismissing all claims against it
by Plaintiffs Michael Murphy and Natalia Taboada for lack of
personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) will be
granted. An appropriate order will follow.
A full-text copy of the Court's Opinion dated Dec. 29, 2022, is
available at https://tinyurl.com/ywy2asxw from Leagle.com.
RETREAT AT LANCASTER: Worton Files Suit in E.D. Pennsylvania
------------------------------------------------------------
A class action lawsuit has been filed against Retreat at Lancaster
County PA LLC. The case is styled as James Worton, on behalf of
himself and all others similarly situated v. Retreat at Lancaster
County PA LLC, Retreat Behavioral Health LLC, Case No.
5:23-cv-00026-JMG (E.D. Pa., Jan. 4, 2023).
The nature of suit is stated as Other Personal Property.
Retreat at Lancaster County --
https://www.retreatbehavioralhealth.com/retreat-at-lancaster/ --
offer a wide range of substance abuse and mental health services
designed to provide the highest quality of treatment.[BN]
The Plaintiff is represented by:
Kevin Clancy Boylan, Esq.
MORGAN & MORGAN
2005 Market Street, Suite 350
Philadelphia, PA 19103
Phone: (215) 446-9795
Fax: (215) 446-9799
Email: cboylan@forthepeople.com
REY E. GRABATO: Frantatoro Sues Over Exchange Act Violation
-----------------------------------------------------------
Joe Frantatoro, Chris Marinakos, Kerry Newbert, Sidney and Helen
Reiss, Nick Williams, and John Rizzo, individually and on behalf of
all other persons similarly situated v. REY E. GRABATO II; DANIEL
O'BRIEN; THOMAS NICHOLAS SALZANO; ARTHUR SCUTARO; ARTHUR RAYMOND
SCUTARO, Sr., ARTHUR RAYMOND SCUTARO, Jr., OLENA BUDINSKA; IVEL
TURNER; JEFF ROSENBERG; MARK KORCZAK; BYRON CARTOZIAN; and BRIAN
HARRINGTON, Case No. 1:23-cv-00053 (D.N.J., Jan. 5, 2023), is
brought to recover compensable damages caused by the Defendants'
violation of the federal securities laws and to pursue remedies
under the Securities Act of 1933 (the "Securities Act"), the
Securities Exchange Act of 1934 (the "Exchange Act") and SEC Rule
10b-5 promulgated thereunder. Plaintiffs also seek to recover
compensable damages caused by Defendants' violations of New Jersey
statutory and common law.
This is a class action on behalf of a class consisting of all
persons and entities other than Defendants, including Grabato,
O'Brien, Salzano, and Scutaro who purchased "membership units" in
the NRIA Partners Portfolio Fund I LLC ("NRIA Fund") from at least
February of 2018 to January of 2022 (the "Class Period").
The Defendants offered and sold at least $630 million worth of
membership units in the NRIA Fund during the Class Period to at
least 1,800 investors. Defendants used NRIA and the NRIA Fund to
carry out a fraudulent scheme, including making and disseminating
material misrepresentations, and effectuating a Ponzi scheme to
divert millions of dollars invested in the NRIA Fund for their own
personal gain. NRIA claimed the NRIA Fund was a billion-dollar real
estate development firm focused on the development of townhomes,
condominium complexes, luxury residences, and mixed-use rental
developments. The NRIA Fund's model purported to take advantage of
the purchasing of land or property at below-market prices,
developing the land or property, and then selling it for a profit.
Despite promising investors a guaranteed 12% annual return with
yearly distributions, Defendants misrepresented the NRIA Fund's
financial condition by intentionally misappropriating investor
funds to create the false appearance that the NRIA Fund was
generating revenue from their successful real estate development
operations. In reality, investors were paid "distributions" and
"returns" that were actually funds from prior investors. Investors'
funds were being used to pay other investors their distributions,
fund the Salzano family's personal, luxurious expenses, retain
companies to scrub the internet free of Defendants Salzano and
Scutaro's fraudulent past, and extend undisclosed loans to entities
operated by the Defendants' families. Investors were never informed
that their funds were not being used for the development of real
estate or real estate related investments, which was the supposed
purpose of the NRIA Fund, says the complaint.
The Plaintiffs invested in the NRIA Fund during the Class Period.
The Defendant Grabato was the majority owner, president, and chief
executive officer of NRIA.[BN]
The Plaintiff is represented by:
Gary S. Graifman, Esq.
KANTROWITZ GOLDHAMER & GRAIFMAN, P.C.
135 Chestnut Ridge Road, Suite 200
Montvale, New Jersey 07645
Phone: (201) 391-7000
Email: ggraifman@kgglaw.co
- and -
William B. Federman, Esq.
FEDERMAN & SHERWOOD
10205 N. Pennsylvania Ave.
Oklahoma City, Oklahoma 73120
Phone: (405) 235-1560
Fax:(405) 239-2112
Email: wbf@federmanlaw.com
ROMEO POWER: CMP & Scheduling Order Entered on Securities Suit
--------------------------------------------------------------
In the class action lawsuit re Romeo Power Inc. Securities
Litigation, Case No. 1:21-cv-03362-LGS (S.D.N.Y.), the Hon. Judge
Lorna G. Schofield entered an amended civil case management plan
and scheduling order as follows:
-- No additional parties may be joined after August 15, 2022
without leave of Court.
-- Amended pleadings may be filed without leave of Court until
August 15, 2022.
-- All fact discovery shall be completed no later than Sept.
20, 2023
-- Initial requests for production of documents pursuant to
Fed. R. Civ. P. 34 shall be served by July 8, 2022.
-- Responsive non-ESI documents shall be produced by August
26, 2022, and ESI productions will commence on the later of
August 26, 2022 or four (4) weeks following the resolution
of the issues raised in the Motion. 1
-- Depositions pursuant to Fed. R. Civ. P. 30, 31 shall be
completed by July 28, 2023
-- Requests to admit pursuant to Fed. R. Civ. P. 36 shall be
served by Aug. 16, 2023.
-- The Defendants' response to Plaintiffs' pre-motion letter
for class certification shall be filed by February 15,
2023.
-- The Plaintiffs' motion for class certification shall be
filed by March 1, 2023.
-- The Defendants' opposition shall be filed by April 19,
2023.
-- The Plaintiffs' reply shall be filed by May 3, 2023.
Romeo Power is a battery technology company that creates
energy-dense battery packs.
A copy of the Court's order dated Jan. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3VRavFF at no extra charge.[CC]
The Plaintiffs are represented by:
Kara M. Wolke, Esq.
Melissa C. Wright, Esq.
Gregory B. Linkh, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
E-mail: kwolke@glancylaw.com
mwright@glancylaw.com
glinkh@glancylaw.com
The Defendants are represented by:
Jeff G. Hammel, Esq.
Jason C. Hegt, Esq.
Kristin N. Murphy, Esq.
LATHAM & WATKINS LLP
1271 Avenue of the Americas
New York, NY 10020
Telephone: (212) 906-1200
E-mail: jeff.hammel@lw.com
jason.hegt@lw.com
kristin.murphy@lw.com
RUNAMOK MAPLE: Mejia Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Runamok Maple, LLC.
The case is styled as Richard Mejia, individually, and on behalf of
all others similarly situated v. Runamok Maple, LLC, Case No.
1:23-cv-00109 (S.D.N.Y., Jan. 5, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Runamok -- https://runamokmaple.com/ -- is a specialty foods
company focused on creating fun, innovative, and delicious products
with quality, natural ingredients.[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
SCOUT ENERGY: Class Certification Stage Scheduling Order Entered
----------------------------------------------------------------
In the class action lawsuit captioned as THE COOPER-CLARK
FOUNDATION, individually and on behalf of all others similarly
situated, v. SCOUT ENERGY MANAGEMENT, LLC, et al., Case No.
5:22-cv-04048-KHV-ADM (D. Kan.), the Hon. Judge Angel D. Mitchell
entered a class certification stage scheduling order as follows:
Event Deadline
Jointly proposed protective order Jan. 3, 2023
resubmitted to the court
Jointly proposed ESI protocol Feb. 3, 2023
submitted to the court
Substantial completion of document June 16, 2023
production
Motions to amend or add parties July 28, 2023
Class certification motion filed October 20, 2023
with all supporting evidence,
including expert disclosures
Response in opposition to class January 22, 2024
certification filed with all
supporting evidence, including expert
disclosures
Reply in support of class certification March 8, 2024
Plaintiff's settlement proposal April 19, 2024
Defendant's settlement counter-proposal May 3, 2024
..Jointly filed mediation notice, or May 10, 2024
confidential settlement reports to
magistrate judge
After discussing ADR during the scheduling conference, the court
determined that settlement potentially might be enhanced by
mediation after class certification briefing is complete. Toward
that end, plaintiff must submit a good-faith settlement proposal to
defendant by April 19, 2024.
The Defendant must make a good-faith counter-proposal by May 3,
2024. By May 10, 2024, either (a) the parties must file a joint
notice stating the full name, mailing address, and telephone number
of the mediator they selected, along with the firmly scheduled
date, time, and place of mediation, or (b) each party must submit a
confidential settlement report by e-mail to the undersigned U.S.
Magistrate Judge at ksd_mitchell_chambers@ksd.uscourts.gov.
Scout Energy is a private energy investment manager, focused on
providing upstream oil and gas investments for institutional
partners.
A copy of the Court's order dated Jan. 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3jUj6ua at no extra charge.[CC]
SELENE FINANCE: Extension of Deadline to File Class Cert Bid Sought
-------------------------------------------------------------------
In the class action lawsuit captioned as MARC WEINBERGER and KAREN
WEINBERGER, individually and on behalf of those similarly situated,
v. SELENE FINANCE LP and NEWREZ, LLC d/b/a SHELLPOINT MORTGAGE
SERVICES, Case No. 0:22-cv-60785-RAR (S.D. Fla.), the Parties ask
the Court enter an Order continuing the deadline for the
Plaintiff's Motion for Class Certification through January 26, 2023
and provide such further relief as it deems just and appropriate.
The Court entered the paperless order granting Joint Motion for
Continuance of Class Certification Deadline to January 6, 2023
which set the deadline for Plaintiffs to file a motion for class
certification by January 6, 2022.
The Parties previously agreed to an extension of time for
Defendants to provide discovery responses through December 16, 2022
and a corresponding deadline for Plaintiff to file their Motion for
Class Certification through January 6, 2023.
However due to unavoidable scheduling delays by SELENE because of
holiday closures, Plaintiffs have not yet received SELENE's
discovery responses. Additionally, the Plaintiffs have initiated a
conferral process as required by Magistrate Judge Strauss regarding
Plaintiffs' perceived deficiencies in SHELLPOINT's discovery
responses, and are hopeful the parties can resolve these issues for
Plaintiffs to be able to submit a fulsome Motion for Class
Certification.
Selene Finance operates as a residential mortgage company.
A copy of the Court's order dated Jan. 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3Gku7MX at no extra charge.[CC]
The Plaintiffs are represented by:
Jessica L. Kerr, Esq.
THE ADVOCACY GROUP
111 NE 1st St., Floor 8 #8517
Miami, FL 33132
Telephone: (954) 282-1858
E-mail: jkerr@advocacypa.com
- and -
Scott David Hirsch, Esq.
SCOTT HIRSCH LAW GROUP
6810 N. State Road 7
Coconut Creek, FL 33073
Telephone: (561) 569-7062
E-mail: scott@scotthirschlawgroup.com
SEPHORA USA: Scheduling Order Entered in Espinal Class Suit
-----------------------------------------------------------
In the class action lawsuit captioned as ROSALBA ESPINAL and JUAN
RIVERA, individually and on behalf of all others similarly
situated, v. SEPHORA USA, INC., Case No. 1:22-cv-03034-PAE-GWG
(S.D.N.Y.), the Hon. Judge Gabriel W. Gorenstein entered a
scheduling order:
-- Initial document requests and January 25, 2023
interrogatories:
-- Deadline for joining parties March 29, 2023
or filing amended pleadings:
-- All discovery other than expert September 1, 2023
discovery on the issue of damages
shall be completed by:
-- Any motion for class certification September 1, 2023
shall be filed by:
1. Plaintiffs' Position:
Whether Plaintiffs are manual workers under New York Labor
Law (NYLL) section 191, whether Plaintiffs were paid on a
weekly basis, and whether a class can be certified of other
employees that are similarly situated.
2. Defendant's Position:
The Plaintiffs are former employees of Sephora. Plaintiffs
allege that they and the putative class members were
"manual workers" who were not paid weekly in violation of
the NYLL.
The Plaintiffs concede that they were paid all earnings,
but maintain that they were paid late (i.e., bi-weekly
instead of weekly). Sephora denies liability and denies
class certification is appropriate. Among other defenses,
Plaintiffs were not "manual workers" as defined under the
NYLL, and have no damages.
Sephora operates as a cosmetics and beauty stores.
A copy of the Court's order dated Jan. 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3jWgTOV at no extra charge.[CC]
The Plaintiffs are represented by:
Yitzchak Kopel, Esq.
Alec M. Leslie
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Telephone: (646) 837-7150
Facsimile: (212) 989-9163
E-mail: ykopel@bursor.com
aleslie@bursor.com
The Defendant is represented by:
Kelly Cardin, Esq.
Matthew Gizzo, Esq.
Jessica Schild, Esq.
OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.
599 Lexington Avenue, 17th Floor
New York, NY 10022
Telephone: (212) 492-2500
SIXT RENT: Deadline Extension to File Class Status Bid Sought
-------------------------------------------------------------
In the class action lawsuit captioned as KRISTINA VITALE-RENNER, v.
SIXT RENT A CAR, LLC, Case No. 0:20-cv-62289-AMC (S.D. Fla.), the
Parties request that the deadlines for class certification be
briefly extended as follows:
Event Current Proposed
Deadline Deadline
Parties shall exchange Jan. 18, 2023 Feb. 2, 2023
expert witness summaries
or reports on issues of
class certification
Parties shall exchange Feb. 17, 2023 Mar. 3, 2023
rebuttal expert witness
summaries or reports on
issues of class
certification
Parties' deadline for Feb. 28, 2023 Mar.17, 2023
completing class
certification discovery
Plaintiff shall file Feb. 28, 2023 Mar. 30, 2023
motion for class
certification
The Parties anticipate that their experts on class certification
issues will need time to review the transcripts of the deposition
of Sixt to prepare their expert reports. However, those deposition
transcripts will not be ready until at least a week after the
current deadline for serving expert reports on class certification
issues.
Consequently, the Parties need additional time to prepare their
expert reports on class certification issues. Despite the Parties'
diligent efforts to conduct class certification discovery, they
need a brief extension of the deadlines relating to class
certification so that they may gather the evidence they need to
prepare their expert reports on class certification issues and have
sufficient to prepare their arguments for the anticipated motion
for class certification.
SIXT Rent provides car dealing services.
A copy of Parties' motion dated Jan. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3ilDWSF at no extra charge.[CC]
The Plaintiff is represented by:
Edmund Alonso Normand, Esq.
Amy L. Judkins, Esq.
Jacob Lawrence Phillips, Esq.
NORMAND PLLC
3165 McCrory Place, Ste. 175
Orlando, FL 32803
Telephone: (407) 603-6031
Facsimile: (888) 974-2175
E-mail: amy.judkins@normandpllc.com
- and -
Christopher J. Lynch
CHRISTOPHER J. LYNCH, P.A.
6915 Red Road, Suite 208
Coral Gables, FL 33143
Telephone: (305) 443-6200
Facsimile: (305) 443-6204
E-mail: clynch@hunterlynchlaw.com
- and -
Andrew John Shamis, Esq.
SHAMIS & GENTILE P.A.
14 N.E. 1st Ave., Ste. 1205
Miami, FL 33132
Telephone: (305) 479-2299
Facsimile: (786) 623-0915
E-mail: ashamis@sfinjuryattorneys.com
The Defendant is represented by:
Irene Oria, Esq.
FISHERBROYLES, LLP
199 E. Flagler St. #550
Miami, FL 33131
Telephone: (786) 536-2838
E-mail: irene.oria@fisherbroyles.com
- and -
Patrick M. Emery, Esq.
LAVENDER HOFFMAN, LLC
945 East Paces Ferry Rd NE, Suite 2000
Atlanta, GA 30326
Telephone: (404) 793-0652
E-mail: patrick.emery@lhalawyers.com
SMILEDIRECTCLUB: Provider Plaintiffs File Briefing Schedule
-----------------------------------------------------------
In the class action lawsuit captioned as DR. JOSEPH CICCIO, et al.,
v. SMILEDIRECTCLUB, LLC, et al., Case No. 3:19-cv-00845 (M.D.
Tenn.), the Provider Plaintiffs move for a briefing schedule on
their forthcoming motion for class certification and
appointment of class counsel.
Since August 2022 -- over four months ago—Plaintiffs have been
prepared to present their class certification motion to this Court
for adjudication, along with their materials in support, including
evidence of Defendants' willful misconduct and expert reports
demonstrating harm from SmileDirect's false advertising and
exemplar calculations from Plaintiffs' retained economist showing
damages to the Class in excess of $150 million.
The class certification briefing deadlines have been extended
multiple times, and there currently are no deadlines set.
The Plaintiffs submit that they and the Class they seek to
represent are being prejudiced by this inability to present their
class certification request to the Court for adjudication.
The Plaintiffs filed this case over three years ago and their class
certification motion was initially due over a year ago. After the
Special Master stayed merits discovery pending "the District
Court's entering an Order ruling on Plaintiffs' class certification
motion," class discovery closed on March 30, 2022, and the class
certification motion was due Friday, July 29, 2022.
Plaintiffs' class certification motion is due January 13, 2023;
Defendants' response is due February 3, 2023; Plaintiffs' reply is
due February 17, 2023. If the transcript of the deposition of
Selwyn Singer is not available at least one week before a brief is
due, then, within one week of the transcript becoming available,
the party whose brief was due may file a supplemental brief of no
more than 5 pages addressing the transcript.
The Provider Plaintiffs includes Dr. Joseph; Joseph A. Ciccio, Jr.,
D.D.S. and Peter B. Demarest, D.M.D., PLLC; Dr. Arthur Kapit;
Arthur L. Kapit, D.D.S. M.Sc.D., P.A.; Dr. Vishnu Raj; and Alamo
Ranch Orthodontics, PLLC
SmileDirectClub is a teledentistry company.
A copy of the Plaintiffs' motion dated Jan. 5, 2022 is available
from PacerMonitor.com at https://bit.ly/3IsGlWr at no extra
charge.[CC]
The Plaintiffs are represented by:
Edward M. Yarbrough, Esq.
W. Justin Adams, Esq.
SPENCER FANE LLP
511 Union Street, Suite 1000
Nashville, TN 37219
Telephone: (615) 238-6300
Facsimile: (615) 238-6301
E-mail: eyarbrough@spencerfane.com
wjadams@spencerfane.com
- and -
Robert K. Spotswood, Esq.
Michael T. Sansbury, Esq.
Joshua K. Payne, Esq.
Morgan Franz, Esq.
SPOTSWOOD SANSOM & SANSBURY LLC
Financial Center, 505 20th Street North, Suite 700
Birmingham, AL 35203
Telephone: (205) 986-3620
Facsimile: (205) 986-3639
E-mail: rks@spotswood.com
msansbury@spotswood.com
jpayne@spotswood.com
mfranz@spotswood.com
- and -
Richard Stone, Esq.
RICHARD L. STONE, PLLC
335 Madison Ave., Floor 9
New York, NY 10017
Telephone: (561) 358-4800
E-mail: rstoneesq@rstoneesq.com
The Defendant is represented by:
John R. Jacobson, Esq.
Elizabeth O. Gonser, Esq.
RILEY WARNOCK & JACOB-
SON, PLC
1906 West End Avenue
Nashville, TN 37203
E-mail: jjacobson@rwjplc.com
egonser@rwjplc.com
David Rammelt
- and -
Nicholas J. Secco, Esq.
Emily N. Dillingham, Esq.
Carl M. Johnson, Esq.
Hannah Stowe, Esq.
BENESCH, FRIEDLANDER,
COPLAN AND ARONOFF, LLP
71 South Wacker Drive, Suite 1600
Chicago, IL 60606
E-mail: drammelt@beneschlaw.com
nsecco@beneschlaw.com
edillingham@beneschlaw.com
cmjohnson@beneschlaw.com
hstowe@beneschlaw.com
- and -
Michael D. Meuti, Esq.
Andrew G. Fiorella, Esq.
James R. Bedell, Esq.
BENESCH, FRIEDLANDER,
COPLAN AND ARONOFF, LLP
200 Public Square, Suite 2300
Cleveland, OH 44114
E-mail: mmeuti@beneschlaw.com
afiorella@beneschlaw.com
jbedell@beneschlaw.com
- and -
Michael B. Silverstein, Esq.
BENESCH, FRIEDLANDER,
COPLAN AND ARONOFF, LLP
41 South High Street, Suite 2600
Columbus, OH 43215-6164
E-mail: msilverstein@beneschlaw.com
SNAP FINANCE: Grayes Sues Over Failure to Implement Cybersecurity
-----------------------------------------------------------------
Monique Grayes and Carolyn Saunders, individually and on behalf of
all others similarly situated v. SNAP FINANCE LLC; SNAP RTO LLC;
and DOES 1-100, Case No. 3:23-cv-00058 (N.D. Cal., Jan. 5, 2023),
is brought arising from the Defendants' negligent failure to
implement and maintain reasonable cybersecurity procedures that
resulted in a data breach of its systems on or around between June
23, 2022 and September 8, 2022.
To date, SNAP has served more than 3 million consumers with its
financing products. In connection with these financing related
services, SNAP collects, stores, and processes sensitive personal
data for hundreds of thousands of individuals. In doing so, SNAP
retains sensitive information including, but not limited to, bank
account information, addresses, and social security numbers, among
other things.
As a corporation doing business in California, SNAP is legally
required to protect personal information from unauthorized access,
disclosure, theft, exfiltration, modification, use, or destruction.
SNAP knew that it was a prime target for hackers given the
significant amount of sensitive personal information processed
through its computer data and storage systems. SNAP's knowledge is
underscored by the massive number of data breaches that have
occurred in recent years.
Despite knowing the prevalence of data breaches, SNAP failed to
prioritize data security by adopting reasonable data security
measures to prevent and detect unauthorized access to its highly
sensitive systems and databases. SNAP has the resources to prevent
a breach, but neglected to adequately invest in data security,
despite the growing number of well-publicized breaches. SNAP failed
to undertake adequate analyses and testing of its own systems,
training of its own personnel, and other data security measures as
described herein to ensure vulnerabilities were avoided or remedied
and that Plaintiff's and class members' data were protected.
The hackers responsible for the data breach stole the personal
information of all SNAP's clients, including Plaintiffs'. Because
of the nature of the breach and of the personal information stored
or processed by SNAP, Plaintiffs are informed and believe that all
categories of personal information were further subject to
unauthorized access, disclosure, theft, exfiltration, modification,
use, or destruction. The Plaintiffs are informed and believe that
criminals would have no purpose for hacking SNAP other than to
exfiltrate or steal, or destroy, use, or modify as part of their
ransom attempts, the coveted personal information stored or
processed by SNAP.
The personal information exposed by SNAP as a result of its
inadequate data security is highly valuable on the black market to
phishers, hackers, identity thieves, and cybercriminals. Stolen
personal information is often trafficked on the "dark web," a
heavily encrypted part of the Internet that is not accessible via
traditional search engines. Law enforcement has difficulty policing
the dark web due to this encryption, which allows users and
criminals to conceal identities and online activity, says the
complaint.
The Plaintiffs received notice of the data breach from SNAP via
letter dated December 1, 2022.
SNAP provides financing options for consumers to purchase goods and
pay for those goods via long term financing options.[BN]
The Plaintiff is represented by:
Jason M. Wucetich, Esq.
Dimitrios V. Korovilas, Esq.
WUCETICH & KOROVILAS LLP
222 N. Pacific Coast Hwy., Suite 2000
El Segundo, CA 90245
Phone: (310) 335-2001
Facsimile: (310) 364-5201
Email: jason@wukolaw.com
dimitri@wukolaw.com
SNIP-ITS FRANCHISE: Velazquez Files ADA Suit in S.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Snip-Its Franchise
Company, LLC. The case is styled as Bryan Velazquez, on behalf of
himself and all others similarly situated v. Snip-Its Franchise
Company, LLC, Case No. 1:23-cv-00103 (S.D.N.Y., Jan. 5, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Snip-its -- https://www.snipitsfranchise.com/ -- is one of the
leading children's hair salon franchises in the nation.[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
SOUTHWEST CREDIT: Golka Files FDCPA Suit in C.D. California
-----------------------------------------------------------
A class action lawsuit has been filed against Southwest Credit. The
case is styled as Daniel Golka, individually and on behalf of all
others similarly situated v. Southwest Credit doing business as:
Southwest Credit Systems, LP, Case No. 8:23-cv-00011-DOC-DFM (C.D.
Cal., Jan. 4, 2023).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Southwest Credit -- https://www.swcconsumer.com/ -- is one of the
nation's leading providers of accounts receivable management and
consumer contact service solutions.[BN]
The Plaintiff is represented by:
Jonathan Aaron Stieglitz, Esq.
LAW OFFICES OF JONATHAN STIEGLITZ
11845 W. Olympic Blvd., Suite 800
Los Angeles, CA 90064
Phone: (323) 979-2063
Fax: (323) 488-6748
Email: jonathan.a.stieglitz@gmail.com
SPOKEO INC: Class Cert Briefing Schedule Extended in Kellman
------------------------------------------------------------
In the class action lawsuit captioned as AVIVA KELLMAN, et al., v.
SPOKEO, INC., Case No. 3:21-cv-08976-WHO (N.D. Cal.), the Hon.
Judge William H. Orrick entered an order extending briefing
schedule for class certification as follows:
-- All deadlines related to class certification are extended.
-- The plaintiffs' motion for class certification is due
February 10, 2023.
-- The defendant's opposition is due March 24, 2023.
-- The plaintiffs' reply is due April 21, 2023.
-- The hearing on the motion is moved to May 10, 2023.
Spokeo argues that the plaintiffs do not meet their burden to
identify a prejudice or harm that would be caused by a failure to
extend the deadlines. But the plaintiffs represent that they expect
to receive additional discovery, specifically responses to
interrogatories, on January 18 20, which is after the current
deadline for their motion.
the Plaintiffs say they need these responses to file their class
certification motion. That is sufficient to show good cause and
prejudice under Federal Rule of Civil Procedure 16(b)(4) and Local
Rule 21 6-3(a)(3).
Spokeo operates as a people search engine.
A copy of the Court's order dated Jan. 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3X4TgBW at no extra charge.[CC]
STATE FARM FIRE: Brown Suit Removed to W.D. Missouri
----------------------------------------------------
The case styled as Richard Brown, individually and on behalf of all
others similarly situated v. State Farm Fire and Casualty Company,
Case No. 22AC-AC00423-01 was removed from the Circuit Court of Cole
County, Missouri, to the U.S. District Court for the Western
District of Missouri on Jan. 4, 2023.
The District Court Clerk assigned Case No. 2:23-cv-04002-BCW to the
proceeding.
The nature of suit is stated as Insurance for Insurance Contract.
State Farm Fire and Casualty Company -- https://www.statefarm.com/
-- operates as an insurance company. The Company offers automobile,
property, casualty, health, disability, and life insurance
services.[BN]
The Plaintiff is represented by:
Christopher E Roberts, Esq.
David T. Butsch, Esq.
BUTSCH ROBERTS & ASSOCIATES LLC
231 S. Bemiston, Suite 260
Clayton, MO 63105
Phone: (314) 863-5700
Fax: (314) 863-5711
Email: Roberts@butschroberts.com
butsch@butschroberts.com
- and -
Douglas J. Winters, Esq.
THE WINTERS LAW GROUP, LLC
190 Carondelet Plaza, Ste. 1100
St. Louis, MO 63105
Phone: (314) 499-5200
Fax: (314) 499-5201
Email: dwinters@winterslg.com
The Defendants are represented by:
James F. Bennett, Esq.
Michael Kuhn, Esq.
Robert F. Epperson, Jr., Esq.
James Russell Jackson, Esq.
DOWD BENNETT LLP
7676 Forsyth Blvd., Ste. 1900
Clayton, MO 63105
Phone: (314) 889-7300
Email: jbennett@dowdbennett.com
mkuhn@dowdbennett.com
repperson@dowdbennett.com
rjackson@dowdbennett.com
STATE FARM MUTUAL: Baldwin Suit Removed to E.D. Arkansas
--------------------------------------------------------
The case styled as Phillip S. Baldwin, individually and as special
administrator of the Estate of Phillip D. Balwin, and on behalf of
all others similarly situated on behalf of Phillip D. Baldwin v.
State Farm Mutual Automobile Insurance Company, State Farm Fire and
Casualty Company, Patrick Campbell Insurance Agency Inc., Patrick
Campbell a Registered Agent, Case No. 27CV-22-00136 was removed
from the Grant County Circuit Court, to the U.S. District Court for
the Eastern District of Arkansas on Jan. 4, 2023.
The District Court Clerk assigned Case No. 4:23-cv-00008-BSM to the
proceeding.
The nature of suit is stated as Insurance for Insurance Contract.
State Farm Insurance -- https://www.statefarm.com/ -- is a large
group of mutual insurance companies throughout the United States
with corporate headquarters in Bloomington, Illinois.[BN]
The Plaintiff is represented by:
John Paul Byrd, Esq.
Jonathan Hutto, Esq.
Patrick Russell Kirby, Esq.
Sara Silzer, Esq.
PAUL BYRD LAW FIRM, PLLC
415 North McKinley Street, Suite 210
Little Rock, AR 72205
Phone: (501) 420-3050
Fax: (501) 420-3128
Email: paul@paulbyrdlawfirm.com
jonathan@paulbyrdlawfirm.com
patrick@paulbyrdlawfirm.com
The Defendants are represented by:
Emily M. Runyon, Esq.
MUNSON, ROWLETT, MOORE & BOONE, P.A.
One Allied Drive, Suite 1600
Little Rock, AR 72202
Phone: (501) 374-6535
Fax: (501) 374-5906
Email: emily.runyon@mrmblaw.com
SUFFOLK UNIVERSITY: Jackson Sues Over Failure to Safeguard PII
--------------------------------------------------------------
Megan Jackson, on behalf of herself and all others similarly
situated v. SUFFOLK UNIVERSITY, Case No. 1:23-cv-10019-DJC (D.
Mass., Jan. 4, 2023), is brought against the Defendant for its
failure to properly secure and safeguard its students' sensitive
personally identifiable information, including full names, Social
Security Numbers, Driver's License numbers, state identification
numbers, financial account information, and protected health
information (collectively, "PII"), for failing to comply with
industry standards to protect information systems that contain PII,
and for failing to provide timely, accurate, and adequate notice to
Plaintiff and other Class Members that their PII had been
compromised.
In the course of enrolling, applying for and receiving financial
aid, and receiving educational, medical, and other services from
Suffolk, students provide their personal information to Suffolk. In
turn, Suffolk comes into the possession of, and maintains files
containing, the PII of its students.
On November 30, 2022, Suffolk notified its current and former
students that their PII that had been stored on Suffolk's computer
network had been accessed and removed by an unauthorized
third-party (the "Data Breach"). Based on the public statements of
Defendant to date, a wide variety of PII was implicated in the Data
Breach, including students' full names, Social Security Numbers,
Driver's License numbers, state identification numbers, financial
account information, and protected health information.
As a direct and proximate result of the Defendant's failure to
implement and follow basic security procedures, the Plaintiff's and
Class Members' PII is now in the hands of cybercriminals. The
Plaintiff and Class Members are now at a significantly increased
and certainly impending risk of fraud, identity theft, intrusion of
their health privacy, and similar forms of criminal mischief, risk
which may last for the rest of their lives. Consequently, Plaintiff
and Class Members must devote substantially more time, money, and
energy to protect themselves, to the extent possible, from these
crimes.
The Plaintiff allege claims for negligence, negligence per se,
violations of the Massachusetts Right to Privacy, and declaratory
judgment. The Plaintiff seeks damages and injunctive relief,
including the adoption reasonably sufficient practices to safeguard
PII in the Defendant's custody in order to prevent incidents like
the Data Breach from reoccurring in the future and for Suffolk to
provide identity theft protective services to Plaintiff and Class
Members for their lifetimes, says the complaint.
The Plaintiff was a student at Suffolk from 2019 until she
graduated in 2021.
Suffolk is a private research university in Boston, Massachusetts
and with approximately 6,800 students, it is the eighth-largest
university in the Boston metropolitan area.[BN]
The Plaintiff is represented by:
Jason M. Leviton, Esq.
BLOCK & LEVITON LLP
260 Franklin Street, Suite 1860
Boston, MA 02110
Phone: (617) 398-5600
Email: jason@blockleviton.com
- and -
Gary F. Lynch, Esq.
Jamisen A. Etzel, Esq.
Nicholas A. Colella, Esq.
LYNCH CARPENTER, LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Phone: (412) 322-9243
Fax: (412) 231-0246
Email: gary@lcllp.com
jamisen@lcllp.com
nickc@lcllp.com
SUN-MAID GROWERS: Court Lifts Stay in Velasquez Suit
----------------------------------------------------
In the class action lawsuit captioned as VICTOR VELASQUEZ, an
individual, on behalf of himself and on behalf of all other persons
similarly situated, v. SUN-MAID GROWERS OF CALIFORNIA, Case No.
1:21-cv-00194-AWI-EPG (E.D. Cal.), the Hon. Judge Erica P. Grosjean
entered an order lifting stay and setting case deadlines as
follows:
1. The stay in this action is lifted.
2. Pursuant to the Court's scheduling order, the Plaintiff's
merits' discovery and class certification discovery is now
open.
3. The Court sets the following briefing schedule:
-- Plaintiff's motion for class December 8, 2023
certification filed by:
-- Defendant's opposition due by: January 12, 2024
-- Plaintiff's reply due by: January 26, 2024
4. The Court will hold a hearing on Plaintiff's motion for
class certification on February 2, 2024, at 10:00 AM in
Courtroom 10 (EPG).
On June 2, 2021, the Court held a scheduling conference in this
case and ordered that Plaintiff's merits' discovery and class
certification discovery open. At that time, the Court also set a
briefing schedule for Plaintiff's motion for class certification.
A mid-discovery conference was held on December 8, 2021. On January
3, 2022, the Court approved the parties' stipulation requesting a
stay in this case and continuance of all class certification motion
deadlines in light of the class certification motion in David Diaz
v. Sun-Maid Growers of California, Case No. 18CECG04502, pending
before the Fresno County Superior Court (the "Diaz" action).
On July 5, 2022, the Court issued an order regarding the status of
this case. Based on the parties' joint report, the Court ordered
that this action remain stayed until a ruling was issued on the
pending motion for class certification in the Diaz action. The
Court directed the parties to file a joint status report within
seven days of the state court ruling.
On December 28, 2022, the parties filed a joint status report
stating that the state court granted the motion for class
certification in the Diaz action. The Plaintiff states that he
"intends to pursue the remaining claims in the present action that
were not certified in the Diaz action."
The Plaintiff requests that the Court set a hearing for Plaintiff's
class certification motion in, or after, January 2024. The
Defendant argues that setting a schedule for class certification is
"premature" based on Defendant's belief that Plaintiff intends to
pursue claims in this case that were certified in the Diaz action,
and because Defendant "intends to file dispositive motions in the
Diaz action, including but not limited to a motion for summary
judgment and/or adjudication, which may narrow the claims against
Defendant." However, Defendant agrees that any hearing on the
motion should be held in 2024.
The Court has considered the parties' positions as well as the
procedural posture of this case. Given that this case was stayed
pending a state court matter that has now resolved, the Court will
lift the stay in this case. Accordingly, the Court will now set a
revised briefing schedule and hearing date for Plaintiff's class
certification motion.
Sun-Maid Growers of California is an American privately owned
cooperative of raisin growers headquartered in Fresno, California.
A copy of the Court's order dated Jan. 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3ItXVcy at no extra charge.[CC]
SUNSET INSTALLATION: Harris Files Suit in Cal. Super. Ct.
---------------------------------------------------------
A class action lawsuit has been filed against Sunset Installation
Services, Inc. The case is styled as Robin Harris, and others
similarly situated v. Sunset Installation Services, Inc., Does
1-100, Case No. 34-2023-00332571-CU-OE-GDS (Cal. Super. Ct.,
Sacramento Cty., Jan. 5, 2023).
The case type is stated as "Other Employment - Civil Unlimited."
Sunset Installation Services, Inc. specializing in AC Repair, AC
Installation, AC Maintenance, and servicing of central air
conditioning systems for home, or business.[BN]
The Plaintiff is represented by:
Joseph Lavi, Esq.
LAVI AND EBRAHIMIAN LLP
8889 West Olympic Boulevard Suite 200
Beverly Hills, CA 90211
Phone: (310) 432-0000
Fax: (310) 432-0001
Email: jlavi@lelawfirm.com
SUPERIOR SCAFFOLDING: Scheduling Order Entered in Fernandez
-----------------------------------------------------------
In the class action lawsuit captioned as ALEXANDER FERNANDEZ, v.
SUPERIOR SCAFFOLDING & INSULATION INC., Case No.
3:22-cv-00751-MMH-JBT (M.D. Fla.), the Hon. Judge Marcia Morales
Howard entered a case management and scheduling order and referral
to mediation as follows:
Deadline for providing mandatory Jan. 23, 2023
initial disclosures:
Deadline for moving for class Feb. 1, 2023
certification:
Deadline for moving to join a party Mar. 1, 2023
or amend the pleadings:
Deadline for disclosing expert reports:
Plaintiff: Mar. 3, 2023
Defendant: Apr. 3, 2023
Rebuttal: May 1, 2023
Deadline for completing discovery Aug. 31, 2023
and filing motions to compel:
Deadline for filing dispositive and Sept. 25, 2023
Daubert motions (responses due 21 days
after service):
Deadline for filing all other motions Jan. 29, 2024
including motions in limine:
This case is referred to mediation pursuant to Chapter Four of the
Local Rules. No later than August 1, 2023, the parties shall file a
notice advising the Court of the mediator they selected and the
date of the mediation.
Counsel for Plaintiff is designated as lead counsel to be
responsible for coordinating a mutually agreeable mediation date
and for filing the notice. If Plaintiff is proceeding pro se,
counsel for Defendant shall undertake the responsibility for
coordinating a mutually agreeable mediation date and for filing the
notice.
The mediation conference shall be completed by the date set forth
above. Each party's lead counsel, a party's surrogate satisfactory
to the mediator, and any necessary insurance carrier representative
must attend the mediation.
Superior Scaffolding provides scaffolding & insulation solutions
for industrial & commercial clients throughtout the southeastern
United States.
A copy of the Court's order dated Jan. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3VOZrZL at no extra charge.[CC]
TOYOTA MOTOR: Plaintiffs Bid to File Class Cert Reply OK'd
----------------------------------------------------------
In the class action lawsuit captioned as WILLIAM SQUIRES, JESSE
BADKE, AHMED KHALIL, MICHELLE NIDEVER, JOHN MURPHY, KEVIN NEUER,
NICHOLAS WILLIAMS and DONNA SUE SCOTT, on behalf of themselves and
all others similarly situated, v. TOYOTA MOTOR CORP, TOYOTA MOTOR
NORTH AMERICA, INC. and TOYOTA MOTOR SALES, U.S.A., INC., Case No.
4:18-cv-00138-ALM (E.D. Tex.), the Hon. Judge Amos L. Mazzant
entered an order granting the Named Plaintiffs unopposed motion to
file reply memorandum of law in support of motion for class
certification under seal.
Toyota Motor is a global automotive industry leader manufacturing
vehicles in 27 countries or regions.
A copy of the Court's order dated Jan. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3Xb0F2t at no extra charge.[CC]
TRADER JOE'S: Herd Sues Over Unsafe Levels of Lead in Chocolate
---------------------------------------------------------------
Tamakia Herd, individually and on behalf of all others similarly
situated v. TRADER JOE'S COMPANY, Case No. 1:23-cv-00065 (S.D.N.Y.,
Jan. 4, 2023), is brought to recover damages and injunctive relief
for the Defendant's continuing failure to disclose to consumers
that certain Trader Joe's dark chocolate products, contain unsafe
levels of lead and cadmium ("Heavy Metals").
The Trader Joe's Dark Chocolate Products in question are the Trader
Joe's "Dark Chocolate 72% Cacao" bar and the Trader Joe's "The Dark
Chocolate Lover's Chocolate 85% Cacao" bar. Dark chocolate is often
touted as being a healthier alternative to milk chocolate, however,
a December 2022 report by Consumer Reports revealed that certain
dark chocolate bars, including the Products, had high enough levels
of lead and cadmium that "eating just an ounce a day would put an
adult over a level that public health authorities and [Consumer
Reports'] experts say may be harmful."
Heavy Metals in foods pose a significant safety risk to consumers
because they can cause cancer and often irreversible damage to
brain development as well as other serious health problems.
Consumers who purchase the Products are injured by Defendant's acts
and omissions concerning the presence (or risk) of Heavy Metals. No
reasonable consumer would know, or have reason to know, that the
Products contain (or risk containing) Heavy Metals. Worse, as
companies across the industry have adopted methods to limit heavy
metals in their dark chocolates, Defendant has stood idly by with a
reckless disregard for its consumers' health and well-being. As
such, Plaintiff seeks relief in this action individually and as a
class action on behalf of all purchasers of the Products.
The Plaintiff believed she was purchasing quality and safe dark
chocolate that did not contain (or risk containing) Heavy Metals.
Had the Defendant disclosed on the label that the Products
contained (or risked containing) unsafe toxic Heavy Metals, the
Plaintiff would have been aware of that fact and would not have
purchased the Products or would have paid less for them., says the
complaint.
The Plaintiff purchased both of the Defendant's Products and
consumes about two bars of dark chocolate a week.
The Defendant manufactures, markets, and sells dark chocolate,
including the Products, throughout California and the United
States.[BN]
The Plaintiff is represented by:
Max S. Roberts, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Phone: (646) 837-7150
Facsimile: (212) 989-9163
Email: mroberts@bursor.com
- and -
L. Timothy Fisher, Esq.
Sean L. Litteral, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Phone: (925) 300-4455
Facsimile: (925) 407-2700
Email: ltfisher@bursor.com
slitteral@bursor.com
- and -
Kevin Laukaitis, Esq.
LAUKAITIS LAW FIRM LLC
737 Bainbridge Street, #155
Philadelphia, PA 19147
Phone: (215) 789-4462
Email: klaukaitis@laukaitislaw.com
TURTLEFTPIERCE LLC: Filing of Class Status Bid Extended to Jan. 20
------------------------------------------------------------------
In the class action lawsuit captioned as Peoples v. TurtleFTPierce,
LLC, et al., Case No. 2:22-cv-14345 (S.D. Fla.), the Hon. Judge
Donald M. Middlebrooks entered an order regarding the plaintiff's
notice to the court of stipulation to move deadline for motion for
class certification.
-- The Plaintiff represents that the "Parties have stipulated"
that Plaintiff's deadline to file a Motion for Class
certification is extended from January 7, 2023, to January
20, 2023.
-- The Plaintiffs are advised that "informal extensions" do
not modify deadlines in the Pretrial Scheduling Order;
rather, a deadline may be extended only upon a showing of
"good cause."
-- "This good cause standard precludes modification unless the
schedule cannot 'be met despite the diligence of the party
seeking the extension.'
The suit alleges violation of the Fair Labor Standards Act.[CC]
TURTLEFTPIERCE LLC: More Time to Move for Class Cert Sought
-----------------------------------------------------------
In the class action lawsuit captioned as LAUREN PEOPLES, for
herself and on behalf of those similarly situated, v.
TURTLEFTPIERCE, LLC, a Florida Limited Liability Company, d/b/a
THIRSTY TURTLE SEAGRILL, PANHANDLERS, INC., a Florida Profit
Corporation, d/b/a THIRSTY TURTLE SEAGRILL, TURTLE SPORT, INC., a
Florida Profit Corporation, d/b/a THIRSTY TURTLE SEAGRILL, TURTLE
PARTNERS, LLC, a Florida Limited Liability Company, d/b/a THIRSTY
TURTLE SEAGRILL, Case No. 2:22-cv-14345-DMM (S.D. Fla.), the
Plaintiff files an unopposed motion to extend deadline to move for
class certification:
The Plaintiff served discovery requests on Defendants such that
discovery responses were due on or before January 3, 2023.
On December 16, 2022, this Court issued its Pretrial Scheduling
Order and Order Referring Case to Mediation. Pursuant to said
Order, Plaintiff is required to move for class certification by
January 7, 2023.
The Plaintiff timely moved to amend her complaint to add a cause of
action under the Florida Minimum Wage Act, seeking damages on
behalf of a class of servers and bartenders.
The Amended Complaint was filed on January 3, 2023. On December 28,
2022, Defendants' counsel requested a 15-day extension of time to
serve discovery responses due to a serious family health issue
requiring surgery. The Plaintiff granted the request as a matter of
personal and professional courtesy. However, as a result, despite
her diligence in serving discovery and amending the complaint,
Plaintiff will not have the information needed to file the motion
for class certification by the current deadline.
As such, the Plaintiff respectfully requests a brief extension of
time, up to and including January 22, 2023, to move for class
certification in this matter. This brief extension will not alter
any of the other scheduled deadlines in this matter.
A copy of the Plaintiff's motion dated Jan. 5, 2022 is available
from PacerMonitor.com at https://bit.ly/3ZjnJOv at no extra
charge.[CC]
The Plaintiff is represented by:
Angeli Murthy, Esq.
MORGAN & MORGAN, P.A.
8151 Peters Rd., 4th Floor
Plantation, FL 33324
Telephone: (954) 318-0268
Facsimile: (954) 327-3016
E-mail: amurthy@forthepeople.com
U.S. BANCORP: Dionicio Sues Over Breaches of Fiduciary Duties
-------------------------------------------------------------
Ana L. Dionicio and Alejandro M. Wesaw, individually, and as a
representative of a Class of Participants and Beneficiaries of the
U.S. Bank 401(k) Savings Plan v. U.S. BANCORP, BOARD OF DIRECTORS
OF U.S. BANCORP, and U.S. BANCORP'S BENEFITS ADMINISTRATION
COMMITTEE AND U.S. BANCORP'S INVESTMENT COMMITTEE, Case No.
0:23-cv-00026-PJS-JFD (D. Minn., Jan. 5, 2023), is brought against
the Defendants to remedy breaches of fiduciary duties.
Under the Employee Retirement Income Security Act ("ERISA"), plan
fiduciaries must discharge their duty of prudence "with the care,
skill, prudence, and diligence under the circumstances then
prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims." The Defendants
are ERISA fiduciaries as they exercise discretionary authority or
discretionary control over the 401(k) defined contribution pension
plan--known as the U.S. Bank 401(k) Savings Plan (the "Plan" or
"U.S. Bank Plan")--that it sponsors and provides to its employees.
During the putative Class Period (January 5, 2017, through the date
of judgment), Defendants, as fiduciaries of the Plan, as that term
is defined under ERISA, breached the duty of prudence they owed to
the Plan by requiring the Plan to "pay excessive recordkeeping and
administrative (RKA) and managed account fees," and by failing to
remove their high-cost recordkeeper, Alight Solutions, and their
high-cost managed account service provider, Alight Financial
Advisors ("AFA"). These objectively unreasonable recordkeeping and
managed account fees cannot be contextually justified, and do not
fall within "the range of reasonable judgments a fiduciary may make
based on her experience and expertise."
The Defendants breached their fiduciary duty of prudence by causing
the Plan participants to pay excessive RKA and managed account
fees. The Defendants unreasonably failed to leverage the size of
the Plan to pay reasonable fees for Plan RKA and managed account
services, and by undertaking a competitive bidding process to see
if same level and quality of services could be had by the Plan for
less.
The unreasonable RKA and managed account fees paid inferentially
and plausibly establishes that an adequate investigation would have
revealed to a reasonable fiduciary that the Plan services, given
their level and quality, were improvident. These breaches of
fiduciary duty caused Plaintiffs and Class Members tens of millions
of dollars of harm in the form of lower retirement account balances
than they otherwise should have had in the absence of these
unreasonable Plan fees and expenses. To remedy these fiduciary
breaches, Plaintiffs bring this action on behalf of the Plan under
the ERISA to enforce the Defendants' liability under the ERISA, to
make good to the Plan all losses resulting from these breaches,
says the complaint.
The Plaintiffs were participants in the Plan under ERISA.
U.S. Bancorp is an American bank holding company based in the
Minneapolis, Minnesota area, and incorporated in Delaware.[BN]
The Plaintiff is represented by:
Amy R. Mason, Esq.
MILLER & STEVENS, P.A.
92 Lake Street S.
Forest Lake, MN 55025
Phone: (651) 462-0206
Email: amy@millerstevens.com
- and -
Paul M. Secunda, Esq.
WALCHESKE & LUZI, LLC
235 N. Executive Dr., Suite 240
Brookfield, WI 53005
Phone: (414) 828-2372
UNITED STATES: Burgos Files Suit in N.D. Illinois
-------------------------------------------------
A class action lawsuit has been filed against U.S. Immigration and
Customs Enforcement, et al. The case is styled as Eddna R. Rojas
Burgos, Oscar J. Velasquez Herrera, on behalf of Themselves and
other similarly situated v. U.S. Immigration and Customs
Enforcement, Department of Homeland Security, Thomas Homan Acting
Director of ICE, Case No. 1:23-cv-00046 (N.D. Ill., Jan. 4, 2023).
The nature of suit is stated as Other Immigration Actions.
The U.S. Immigration and Customs Enforcement --
https://www.ice.gov/ -- is a federal law enforcement agency under
the U.S. Department of Homeland Security.[BN]
The Plaintiffs are represented by:
Manuel A. Cardenas, Esq.
MANUEL A. CARDENAS & ASSOCIATES, P.C.
2059 North Western Avenue
Chicago, IL 60647
Phone: (312) 961-3607
Email: macosta@manuelcardenas.law
The Defendants are represented by:
AUSA – Chicago
United States Attorney's Office (NDIL-Chicago)
219 South Dearborn Street
Chicago, IL 60604
Email: USAILN.ECFAUSA@usdoj.gov
W STREETS LLC: Starling Files TCPA Suit in D. Arizona
-----------------------------------------------------
A class action lawsuit has been filed against W Streets LLC, et al.
The case is styled as Kimberly Starling, individually and on behalf
of others similarly situated v. W Streets LLC, Next Level
Mastermind LLC, Case No. 2:23-cv-00014-SMB (D. Ariz., Jan. 4,
2023).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
W Streets is your Premier Real Estate solutions company.[BN]
The Plaintiff is represented by:
David James McGlothlin, Esq.
Ryan Lee McBride, Esq.
KAZEROUNI LAW GROUP APC
4455 E Camelback Rd., Ste. C250
Phoenix, AZ 85018
Phone: (800) 400-6808
Fax: (800) 520-5523
Email: david@kazlg.com
ryan@kazlg.com
WALGREENS BOOTS: Bell's Bid to Remand Suit to State Court Denied
----------------------------------------------------------------
Judge John A. Ross of the U.S. District Court for the Eastern
District of Missouri, Eastern Division, denies the Plaintiff's
motion to remand to state court the lawsuit captioned JOSHUA BELL,
Plaintiff v. WALGREENS BOOTS ALLIANCE, INC., et al., Defendants,
Case No. 4:22-cv-0873-JAR (E.D. Mo.).
Plaintiff Joshua Bell filed this putative class action in Missouri
state court arising from the purchase of over-the-counter cough and
flu medication marketed and sold by Illinois Defendants Walgreens
Boots Alliance, Inc., and Walgreen Co. The Plaintiff alleges that
the Defendants misrepresented their cough and flu medications and
misled consumers by marketing them as non-drowsy when in fact they
contain dextromethorphan hydrobromide (DXM), a substance
scientifically proven to cause drowsiness.
The Plaintiff brings claims for breach of warranty (Count I);
implied contract (Count II); unjust enrichment (Count III); and
violation of the Missouri Merchandising Practices Act ("MMPA")
(Count IV). In his petition, the Plaintiff requests compensatory
damages, restitution, attorney fees, and injunctive relief on
behalf of a purported class of thousands of Missouri citizens, who
purchased the products at issue over a five-year period in
Missouri.
The Plaintiff also included the following stipulation: Although
aggregate damages derived from a percentage of the Product will not
exceed $5 million, nonetheless the Plaintiff, on behalf of himself
and the purported class, disclaims and/or abandons any and all
recovery exceeding $5 million. The Plaintiff and his counsel
further stipulate as set forth in Exhibit A, hereto.
The attached Exhibit A further stated that the Plaintiff,
individually through counsel, and his counsel, Daniel Harvath, as
counsel in this lawsuit (Action), jointly stipulate and affirm the
following:
-- The Plaintiffs will not recover, and completely disclaim
recovery of, any combination of damages and/or attorneys'
fees related to this Action meeting or exceeding
$5 million;
-- If the Plaintiff, Mr. Bell, is replaced as named
representative in this Action, his counsel stipulates and
affirms and covenants that any and all potential class
representatives for this Action must similarly stipulate
and affirm the limitation of recovery;
-- The Plaintiff and counsel intend for this Stipulation to
continue to apply to, and bind, any other class members
bringing any claim in this specific Action.
The Defendants timely removed the case to the Court under the Class
Action Fairness Act (28 U.S.C. Section 1332(d)(2)) and subsequently
moved to dismiss the case. The Court stayed briefing on that motion
pending resolution of the present motion to remand.
In support of his motion to remand, the Plaintiff asserts that his
stipulation to not recover more than $5 million makes it legally
impossible for the amount in controversy to exceed $5 million, so
the Court lacks jurisdiction under CAFA. The Defendants counter
that the Plaintiff's stipulation has no effect because, according
to Supreme Court precedent in Standard Fire Ins. Co. v. Knowles,
568 U.S. 588 (2013), a plaintiff who files a proposed class action
cannot legally bind members of the proposed class before the class
is certified.
The Plaintiff replies that his stipulation expressly binds any
future representative and class as well, and moreover the
Defendants fail to provide sufficient evidence to establish that
the case satisfies the requisite amount in controversy.
In support of remand, the Plaintiff relies on Rolwing v. Nestle
Holdings, Inc., 666 F.3d 1069 (8th Cir. 2012), where the Eighth
Circuit held that a damages stipulation could preclude removal
under CAFA. However, Judge Ross opines, Rowling was later abrogated
by the Supreme Court's decision in Standard Fire, which held that a
pre-certification damages stipulation can tie a plaintiff's own
hands, but it does not resolve the amount-in-controversy question
for purposes of determining whether CAFA jurisdiction exists.
The Plaintiff attempts to overcome Standard Fire by further
stipulating that any replacement representative must also bind the
putative class, but several courts of this district have rejected
that approach, Judge Ross holds. The Court likewise finds the
Plaintiff's stipulation unavailing.
Additionally, the Plaintiff argues that the Defendants have not met
their burden to show that the amount in controversy exceeds $5
million. The Defendants submit an affidavit by a Senior Sourcing
Manager, Barbara Morrison, declaring that total sales for the
subject product in Missouri are over $7.4 million, with monthly
sales over the past five years ranging from $29,000 to $264,000,
such that a nationwide recall of all current inventory would far
exceed these amounts.
Although the Plaintiff claims to seek only a small percentage of
total profits, Judge Ross holds there is no basis to assume or
estimate a price premium at this time, and in any case the
Defendants are not required to provide a formula for calculating
damages; total sales figures suffice. Moreover, the Plaintiff's
complaint also seeks a disgorgement of profits, benefits, and other
compensation, as well as attorney fees and injunctive relief.
The Plaintiff does not address the Defendants' argument with
respect to attorney fees.
Given the nature of his claims, Judge Ross holds that the
Plaintiff's request for injunctive relief would necessarily involve
a nationwide relabeling campaign and product recall, which Ms.
Morrison stated would far exceed Missouri sales figures.
Considering total sales together with the Plaintiff's request for
disgorgement of profits, attorney fees, and injunctive relief, the
Court finds that the Defendants have demonstrated the possibility
of recovery satisfying CAFA's amount in controversy.
Accordingly, Judge Ross rules that the Plaintiff's Motion to Remand
is denied. The Plaintiff will file a response to the Defendants'
pending Motion to Dismiss within fourteen (14) days of this Order.
A full-text copy of the Court's Memorandum and Order dated Dec. 29,
2022, is available at https://tinyurl.com/mthjfp5f from
Leagle.com.
WESTERN ALLIANCE: Mathews Sues Over Failure to Pay Overtime Wages
-----------------------------------------------------------------
Whitney Mathews, on behalf of herself and others similarly situated
v. WESTERN ALLIANCE EMERGENCY SERVICES, INC., Case No.
4:23-cv-00012-MWB (M.D. Pa., Jan. 4, 2023), is brought against the
Defendant seeking all available relief and failure to pay overtime
wages under the Fair Labor Standards Act and the Pennsylvania
Minimum Wage Act.
The Plaintiff, like other EMTs, often worked over 40 hours per
week. The FLSA and PMWA entitle employees to extra overtime pay for
hours worked over 40 per week. Specifically, each hour worked over
40 per week is compensable at a pay rate equaling 150% of an
employee's regular hourly rate. For example, when Plaintiff's
straight-time wage equaled $14.00/hour, her overtime wage equaled
$21.00/hour.
The Defendant often violated the rule. Specifically, during many
weeks within the relevant three-year period, Defendant
characterized any hours worked over the 40-hour overtime threshold
as "EMT on-call station" and paid EMTs for those hours at a rate of
$11.25/hour, instead of 150% of her regular rate. The Defendant did
not pay the Plaintiff any overtime premium pay even though
Plaintiff worked at least 33 hours of overtime, and instead paid
Plaintiff only $11.25 an hour (less than Plaintiff's regular rate)
for those hours, says the complaint.
The Plaintiff was employed by the Defendant as an EMT.
The Defendant operates a business that provides "emergency and
non-emergency Medical Services for Troy & Canton PA and surrounding
communities."[BN]
The Plaintiff is represented by:
Pete Winebrake, Esq.
Deirdre Aaron, Esq.
WINEBRAKE & SANTILLO, LLC
715 Twining Road, Suite 211
Dresher, PA 19025
Phone: (215)884-2491
Email: pwinebrake@winebrakelaw.com
daaron@winebrakelaw.com
WESTGATE PALACE: Joint Bid for Extension of Certain Deadlines Filed
-------------------------------------------------------------------
In the class action lawsuit captioned as ADAM U. STEINES,
individually, and on behalf of all others similarly situated, and
MIRANDA L. STEINES, individually, and on behalf of all others
similarly situated, ANDREW M. ORMESHER, individually and on behalf
of all other similarly situated, v. WESTGATE PALACE, LLC, a Florida
limited liability company, WESTGATE RESORTS, INC., a Florida
corporation, WESTGATE RESORTS, LTD., a Florida limited partnership,
CENTRAL FLORIDA INVESTMENTS, INC., a Florida corporation, WESTGATE
VACATION VILLAS, LLC, a Florida limited liability company, CFI
RESORTS MANAGEMENT, INC., a Florida Corporation, and WESTGATE
LAKES, LLC, a Florida limited liability company, Case No.
6:22-cv-00629-RBD-DAB (M.D. Fla.), the Parties ask the Court to
enter an order extending the remaining deadlines in the Scheduling
Order in accordance with the proposed schedule described below:
-- Defendants' Expert Witness Disclosure March 15, 2023
and Report:
-- Rebuttal Expert Disclosure and April 12, 2023
Report:
-- Class Certification Submission April 3, 2023
-- Response to Class Certification April 24, 2023
-- Completion of Discovery June 30, 2023
-- Summary Judgment, Daubert July 28, 2023
and Markman Motions:
On February 2, 2022, Plaintiffs filed their Complaint initiating
this case. Following motions directed to the pleadings and to
compel arbitration and after the case was transferred to the
Orlando Division, this Court entered its Case Management and
Scheduling Order on July 26, 2022, thereby setting various
deadlines governing the progression of this case and placing the
parties on the November 6, 2023, jury trial term.
On August 12, 2022, Plaintiffs filed their Amended Complaint, which
added Ormesher and Defendant Westgate Lakes, LLC. The Defendants
moved to dismiss the amended complaint, moved to compel arbitration
and following an evidentiary hearing on the motion to compel
Thereafter, the Defendants filed their Notice of Appeal of the
Court's denial of the motion to compel arbitration on December 20,
2022, and the Defendant Westgate Lakes, filed its motion to compel
arbitration on December 22, 2022, which are pending in the 11th
Circuit Court of Appeals and this Court, respectively.
A copy of the Parties' motion dated Jan. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3iip2ws at no extra charge.[CC]
The Plaintiffs are represented by:
Craig E. Rothburd, Esq.
Dylan J. Thatcher, Esq.
CRAIG E. ROTHBURD, P.A.
320 W. Kennedy Blvd., No. 700
Tampa, FL 33606
Telephone: (813) 251-8800
E-mail: craig@rothburdpa.com
dylan@rothburdpa.com
maria@rothburdpa.com
- and -
Scott R. Jeeves, Esq.
Kyle W. Woodford, Esq.
JEEVES LAW GROUP, P.A.
2132 Central Avenue
St. Petersburg, FL 33712
Telephone: (727) 894-2929
E-mail: sjeeves@jeeveslawgroup.com
kwoodford@jeeveslawgroup.com
khill@jeeveslawgroup.com
- and -
Janet R. Varnell, Esq.
Brian W. Warwick, Esq.
Matthew T. Peterson, Esq.
Erika R. Willis, Esq.
VARNELL & WARWICK, P.A.
1101 E. Cumberland Ave., Ste. 201H, #105
Tampa, FL 33602
Telephone: (352) 753-8600
Facsimile: (352-504-3301
E-mail: jvarnell@vandwlaw.com
bwarwick@vandwlaw.com
mpeterson@vandwlaw.com
ewillis@vandwlaw.com
kstroly@vandwlaw.com
- and -
Roger L. Mandel, Esq.
JEEVES MANDEL
LAW GROUP, P.C.
2833 Crockett St, Suite 135
Fort Worth, TX 76107
Telephone: (214) 253-8300
E-mail: rmandel@jeevesmandellawgroup.com
The Defendants are represented by:
Richard W. Epstein, Esq.
GREENSPOON MARDER LLP
200 E. Broward Blvd, # 1800
Fort Lauderdale, FL 33301
Telephone: (954) 491-1120
E-mail: richard.epstein@gmlaw.com
jeffrey.backman@gmlaw.com
shane.mcglashen@gmlaw.com
WIZARD'S CHEST: Velazquez Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against The Wizard's Chest,
Inc. The case is styled as Bryan Velazquez, on behalf of himself
and all others similarly situated v. The Wizard's Chest, Inc., Case
No. 1:23-cv-00106 (S.D.N.Y., Jan. 5, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Wizard's Chest -- https://www.wizardschest.com/ -- is your
one-of-its-kind, family-owned store with magical treasures for
everyone.[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
XOOM ENERGY: Class Certification Briefing Schedule Proposed
-----------------------------------------------------------
In the class action lawsuit captioned as Mirkin, et al. v. XOOM
Energy, LLC, et al., Case No. 1:18-cv-02949-ARR-RER (E.D.N.Y.), the
Parties jointly propose the following briefing schedule for the
remaining class certification briefs and Defendants' proposed
summary judgment motion:
-- The Defendants will file their February 3, 2023
response to Plaintiffs' motion
for class certification on or
before:
-- The Plaintiffs will file their March 17, 2023
reply in support of their motion
for class certification on or
before:
-- The Defendants will file their March 24, 2023
anticipated summary judgment
motion on or before:
-- The Plaintiffs will file their May 5, 2023.
response to Defendants'
anticipated summary judgment
motion on or before:
-- The Defendants will file their June 2, 2023
anticipated summary judgment
reply on or before:
XOOM Energy through its family of companies is a retail
electricity, renewable and natural gas provider in over 90 energy
choice markets across North America.
A copy of the Parties' motion dated Jan. 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3GP2FZb at no extra charge.[CC]
The Plaintiff is represented by:
Steven L. Wittels, Esq.
WITTELS MCINTURFF PALIKOVIC
18 Half Mile Road
Armonk, NY 10504
Telephone: (914) 775-8862
E_mail: slw@wittelslaw.com
The Defendant is represented by:
Michael D. Matthews, Jr., Esq.
MCDOWELL HETHERINGTON LLP
1001 Fannin Street, Suite 2700
Houston, TX 77002
Telephone: (713) 337-5580
E-mail: matt.matthews@mhllp.com
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2023. All rights reserved. ISSN 1525-2272.
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